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WHARTON AND STILLE'S

MEDICAL JURISPRUDENCE.

FOUETH EDITION".

YOL. I.

PHILADELPHIA:
KAY & BROTHER, 17 AND 19 SOUTH SIXTH STREET.

1882.

Entered according to Act of Congress, in the year 1855, by
KAT & BROTHER,

in the Office of the Clerk of the District Court of the United States in and for the
Eastern District of Pennsylvania.

Entered according to the Act of Congress, in the year 1860, by
KAT & BROTHER,

in the Clerk's Office of the District Court of the United States in and for the
Eastern District of Pennsylvania.

Entered according to Act of Congress, in the year 1872, by

KAT & BROTHER,
in the Office of the Librarian of Congress, at Washington.

Entered according to Act of Congress, in the year 1882, by

FRANCIS WHARTON,
in the Office of the Librarian of Congress, at Washington.

COLLINS, PEIXTER.

A TREATISE

MEOTAL UNSOUroMSS,

EMBRACING A

GENERAL VIEW OF PSYCHOLOGICAL LAW.

FRANCIS WHARTON, LL.D.,

AUTHOR OF TREATISES ON CRIMINAL LAW, ON EVIDENCE, AND ON THE CONFLICT OF LAWS.

PHILADELPHIA:
KAY & BROTHER, 17 AND 19 SOUTH SIXTH STREET.

1882.

Entered according to Act of Congress, in the year 1855, by
KAY & BROTHER,

in the Office of the Clerk of the District Court of the United States in and for the
Eastern District of Pennsylvania.

Entered according to the Act of Congress, in the year 1860, by
KAY & BROTHER,

in the Clerk's Office of the District Court of the United States in and for the
Eastern District of Pennsylvania.

Entered according to Act of Congress, in the year 1872, by

KAY & BROTHER,
in the Office of the Librarian of Congress, at Washington.

Entered according to Act of Congress, in the year 1882, by

FRANCIS WHARTON,
in the Office of the Librarian of Congress, at Washington.

PEEFACE TO THE FOURTH EDITION.

In the present edition the text of former editions has
been rearranged and condensed ; a large amount of new
material introduced ^ the number of citations having
been doubled; and the chapters on the jurisprudence of
insanity rewritten. In the task of preparation I have
been aided by my nephew, Thomas I. Wharton, Esq.,
of Philadelphia.

F. W.

Philadelphia, March 24, 1882.

PREFACE TO THE THIRD EDITION.

Since the publication, in 1860, of the second edition of this
work, the specialty of psychological law has taken a shape which
has made necessary the preparation of a treatise Avhich is substan-
tially new. The circumstances which have led to this change may
be thus stated.

Until the close of the last century, insanity received but little
attention from physicians, and still less from psychologists. " Lu-
natics," to follow the barbarous old English designation, were re-
garded as outcasts mostly incurable ; as devoid of those sensibilities
which call for tender care ; as presenting little more claim to phi-
lanthropic consideration than do brutes. Unless birth or wealth
gave special opportunities for their custody at home, they were
huddled, in England and France, in pens, or chained in cells, where
they were generally subjected to treatment the most brutal. In
New England they were often let out ' by the town to the lowest
bidder, who undertook to support them for a pittance scarcely
sufficient to buy offals for their food, and who permitted them, when
they were gentle, to roam at large, or chained them, when violent,
in stables. Asylums, as reformatory and hygienic establishments,
were unknown. Hence arose the tendency both of psychologists
and courts to narrow the definition of insanity so as to reduce as
far as possible the numbers of the class who were to be subjected to
so wretched a doom.

But on the insanity of George III. a new era came in. Insanity
could not be so vulgar a thing when it attacked the king. It could
scarcely be regarded by loyal Englishmen as a merited curse, when

vii

PREFACE TO THE THIRD EDITION.

it visited a prince of whose virtues they were justly proud, and of
whose obstinate self-will they were blindly ignorant. Philanthro-
pists as well as philosophers poured in with abundant advice as to
the tenderest treatment to be applied to the royal suiFerer ; and
committees of the house of commons vied with medical commissions
in speculating on the characteristics of a malady which had become
exalted in the exaltation of the victim on whom it had pounced.
Fortunately for the interests of humanity, almost simultaneously
took place in Paris the investigations of Pinel. This remarkable
man, who united in rare excellence great administrative power,
untiring patience of research, and singular attractiveness of style,
found the Bic^tre, when he took medical charge of it in 1791, in a
condition at which humanity shuddered. It combined, under one
general superintendence, the functions of almshouse, prison, nursery,
foundling's home, and lunatic asylum, with no distinction made in
the treatment of crime and of disease. Such patients as could do
so without disturbance mingled with the other inmates of this vast
abode of wretchedness and of guilt ; but those who were in any
way troublesome were chained in damp and putrid cells, under the
charge of convicts whose desperateness seemed to constitute their
title to this distinction. Against this inhumanity Pinel protested
with such untiring and dauntless eloquence that he succeeded in
effecting a thorough reformation. A separate asylum, based on
wise sanitary regulations, was opened for the insane, and subse-
quently the Salp6tri^re, a distinct establishment for deranged
women, was organized under his particular care. He was suc-
ceeded at the Salp^triere by Esquirol, who had been his assistant,
and by whom his wise hygienic reforms were further elaborated
and extended.

Nor did the efforts of these eminent physicians stop at the

amelioration of the physical and mental condition of the insane.

Madness having been shown to be capable of cure, and to be a

condition in itself implying no moral stigma, and insane asylums

viii

PREFACE TO THE THIRD EDITION.

having been proved to be the places where the insane can most
readily be restored to health, many persons came to be regarded
by their friends and by a rightful public feeling as insane, who
previously would have been treated as sane. The definition of
insanity, in the philanthropic mind at least, was so enlarged as to
include all persons who, while not being clearly maniacs, were yet
subject to mental or moral anomalies which a wise medical treat-
ment could remove.

But this was not the only circumstance that tended to an expan-
sion of the definition. Another influence, still more marked, had
already prepared the public mind to treat as insanity much that
was really only folly or guilty impulse. Between 1760 and 1764,
Rousseau published his Contrat Social and .Emile, works which,
in the sentimental humanitarianism they inculcated, were the natural
extreme reaction from the inhumanity of the prior absolutist regime.
Rousseau flamed with a romantic admiration not merely for the
liberty to do right, but for the liberty to do wrong. Even the
grossest natural instincts were of divine origin, and should be nursed
with delicate respect. Crime was something to which a man was
impelled by his nature ; else why should he indulge in crime ?
Heretofore all insanity was crime. Now all crime was to be in-
sanity. Sin was not to be viewed as horrible and odious, but as
something abnormal, indeed, but provocative of curious regard and
sympathy. And criminals were an interesting class of lunatics,
who were especially consecrated to the restorative care of the
state.

Pinel, like most other French philosophers of his day, was not
slow, when responding to this reaction, to welcome a plan which
proposed to extirpate crime and inaugurate liberty, by placing
crime distinctively under humane medical care. Undoubtedly
there was much in his special experience to strengthen him in this
view. He had seen many insane persons treated as criminals. It
was natural to him to assume the converse, and to hold that there

PREFACE TO THE THIRD EDITION.

are many criminals who are to be treated as insane. In sustaining
this view he cautiously though distinctly set forth the proposition,
hereafter fully discussed/ that there is' a distinct form of mad-
ness in which the reason remains unimpaired. It is true, when
he came to illustrate this by examples, it was found that the
" reasoning maniacs," whom he described, were more or less
maniacs even in their reason. But nevertheless the proposition
fitted symmetrically into the philosophy of the French revolution, and
was accepted by the apostles of that revolution wherever they taught.
Fifty years afterwards, in times greatly changed, another influ-
ence arose to give fresh impetus to the same peculiar theory. The
French revolution was over, and with it had vanished those ideas
of sentimental humanitarianism which had lent it so much fascina-
tion. It is true that the evaporating process was not without a
sensible deposit of good. Insanity, for instance, was no longer
associated with crime ; and the speculations of Pinel, reproduced in
a modified shape by his scholar, Esquirol, were, when accepted by
French legislation, interpreted to mean nothing more than that
crime is often a consequence of insanity, and, when so, is irrespon-
sible. In 1798, however. Gall startled the scientific world by his
alleged discovery of phrenology. His genius, eminently enter-
prising and constructive, but shut out by the then state of Europe
from political adventure, betook itself to adventure in science.
Arrested, as he tells us, by the fact that those of his school com-
panions who had good verbal memories had bulging eyes, he grad-
ually developed the theory that each function and propensity had
a separate local habitation in the brain ; and that the power of the
function or propensity varied with the size of its cerebral apart-
ment, as measured on the outside. As, however, each function and
each propensity dwelt alone in its particular cell, each was capable
of independent action, and, of course, as each could be independ-
ently strong or weak, each could be privately insane. This sever-

1 Infra, § 531.

PREFACE TO THE THIRD EDITION.

ance of functions and propensities was the distinguishing feature of
Gall's system ; and, to establish it psychologically, he devoted the
energies of a mind which, while disdaining logical restraint, and
rash in leaping at results, was peculiarly quick, curious, and spe-
cious. A peripatetic from necessity, for the German reactionary
governments, doubtful of the uses to which his philosophy might
be put, forced him into a series of exiles, he collected, wherever he
went, from newspapers, from sympathetic disciples, from every
quarter, in fact, except the official reports of experts and of courts,
every anecdote by which his theory could be helped. Such was
the piquant plausibility of his publications that they not only
attracted interest, but enlisted enthusiasm. Nothing, indeed, could
be more racy than his details. A distinguished prince, remarkable
for his sagacity and cool sense, was possessed, it was declared, by
an irresistible propensity to steal. A young girl, of singular
amiability and excellent reasoning powers, was in the habit of set-
ting fire to houses. A philanthropist, blandly sane in all other
respects, met with some injury to the cell that restrained the func-
tion of destructiveness, and forthwith betook him to killing his
neighbors. No doubt there was a basis of reality in most of Gall's
cases. The difficulty was that he did not sufficiently investigate
the facts. For all he knew, and for all he inquired, the prince,
and the girl, and the philanthropist might have been the descend-
ants of insane parents ; might have been epileptics ; might have
betrayed in their families unmistakable symptoms of mental derange-
ment ; might subsequently have died in a madhouse. Nor were
his cases cited in such a way as to enable subsequent investigators
to inquire into their accuracy. No one could tell whence most of
them came. Yet so engaging was the style in which they were
narrated, and so great was the confidence felt in Gall as a narrator,
that they were readily accepted by those whose theories they sub-
served. The psychological conclusion was inevitable. If criminal
instincts have separate apartments in the brain, then those criminal

PREFACE TO THE THIRD EDITION.

instincts can be separately insane. Hence, the doctrine of mono-
mania^ sustained at once by Gall's facts and by bis hypothesis,
began, under the impulse thus imparted, once more to challenge
judicial assent.

On our distinctive jurisprudence, the causes just mentioned
would have had little influence had it not been for the indirect
bearings of another condition. Nothing could have been more
barbarous than the old English adjustment of penalty to crime.
A man who stole a fowl was capitally punished ; and, even after a
century of legal reform, the laAv in England still is that a man who
kills another when designing to hurt, but not to kill, is amenable to
as high a sentence as he who deliberately assassinates. But
humane observers revolted from this subjecting crimes so entirely
distinct to the same penalty, and they cast about for some method
of relief. In the United States a remedy was seized which was in
a large measure efficacious. Murder was divided into two degrees,
and capital punishment was reserved exclusively for cases in which
there was proved a premeditated intention to take life. On this
has been not unfrequently grafted the humane construction that
where from mental or nervous excitement the defendant is incapable
of forming a specific intent, then the capital offence is not proven.^
But in England, these mitigating qualifications were not accepted ;
and though in the United States the division of murder into two
degrees was at an early period established almost universally, the
courts were at first slow to recognize the fact that a mind disturbed
by nervous excitement and blurred by insane predispositions may
be incapable of intellectual premeditation, while at the same time
capable and responsible for passionate crime. Hence, it has been
that the jury has been too often narrowed to a choice between con-
viction of a capital offence and acquittal ; and hence, to justify an
acquittal, insanity has sometimes been used as a pretext, when
insanity in the correct sense of the term did not exist.

' See infra, § 200.

xii

PREFACE TO THE THIRD EDITION.

This unscientific extension of insanity received a quasi scientific
sanction under the following circumstances. By the Anglo-Ameri-
can practice, a party is entitled to call on trial any expert he may
select ; and he is not likely to select any whose views will not pro-
mote his cause. It so happens that among the present large body
of experts there is little trouble in discovering one or more by whom
is maintained the particular psychological theory of which the party
on trial stands in need. It is an old truth that there is nothing so
absurd but that some philosopher may be found by Avhom it is
affirmed. " Nihil tarn absurde dici potest quod non dicatur ab
aliquo philosophorum."^ To sustain a particular defence, for
instance, it is necessary to prove that the " morals" may be insane
while the mind is sane. The defendant's counsel forthwith proceed
to search among the multitudes who have written on insanity, or
have been in any way conversant with the insane, for a philosopher
by whom this unique hypothesis is held. When the case is tried,
this philosopher is produced and swears promptly and positively
to his belief. On the strict principles of law, he cannot be cross-
examined as to the opinions of others, for this would be hearsay.
So far, therefore, as the particular case is concerned, he stands
before the jury as if he was the collected sense of the psychological
experts of the whole world. It may be that the prosecution may
be able to cancel his testimony by the production of a preponderat-
ing weight of experts on the other side. But to do so requires
energy, skill, and means ; and too often has the duty been neg-
lected, and the case left to rest, in criminal trials, on the testimony
of the exceptional experts selected by the defence. Hence it is
that juries, if not courts, have occasionally succumbed to such
testimony in respectful amazement, feeling, indeed, that it is wrong,
but not seeing how it could be disregarded.

As influences disturbing the juridical conception of insanity — to
recapitulate those which we have just been enumerating in detail —

1 Cicero, de Diviiiatione, II. 58.

xiii

PREFACE TO THE THIRD EDITION.

we may, therefore, mention (1) the romanticism of the French
psychological followers of Rousseau, afterwards aided by phre-
nology, which refined crime into insanity ; (2) reaction from the
old English barbarism which punished insanity as if it were crime ;
and (3) the hesitation felt by the courts in grappling with the
philosophy of a question which had been claimed to be purely
medical. Under these circumstances arose that confusion of law
which was noticed in the prior editions of this treatise.

Since 1860, when the second edition was issued, a great change
has taken place. Before that period, we may say generally, there
had been no positive and final repudiation by psychological science
of the theory of criminal monomanias. Since then medical as well
as psychological science has rallied, and from all quarters there
has risen, as will be hereafter shown more fully, almost an unbroken
denunciation of a scheme of psychological romanticism which sober-
minded men have learned to feel is as repugnant to science as it is
hostile to society.^ And this advance of science, towards a common
reconciliatory stand-point, is now met by a corresponding advance
of law. It has been just stated that one of the causes of early
juridical confusion on this topic was the revulsion from the exces-
sive punishments assigned by the old law to offences of even lighter
grade. Civilization was shocked at seeing a man, who, from ner-
vous or mental or physical disorder, was incapable of cool premedi-
tation or exact intent, hurried to the gallows for what might be a
comparatively venial crime ; and it was to the desire to save such
that the toleration of the idea of irresponsibility in such cases is in
a large measure traceable. But it was soon found that this enlarge-
ment of irresponsibility worked badly. It exposed many persons,
virtually sane, to the pains and penalties of insanity. It enfran-
chised a dangerous class of outlaws, too insane to be punished for
crime, and yet too sane to be restrained. It involved, on the part
of the state, the abdication of one of its chiefest functions — the

1 See infra, §§ 552-643.

xiv

PREFACE TO THE THIRD EDITION".

building up of a right moral sense in those of its subjects in whom
such moral sense is deficient.

But is so violent a remedy necessary ? Is there no alternative
between an unjust conviction of a man of an offence to whose grade
of guilt he does not quite reach, and his equally unjust acquittal in
the face of evidence showing his guilt of an intermediate grade ?
It has already been seen that in the United States, at an early day,
a statutory approach was made to this result by the beneficent
enactments dividing murder into two degrees. But this by itself is
not enough. A court may say to a jury, " Here is evidence of
premeditation ; you must here find either murder in the first degree,
or acquit." Eminent jurists, in order to meet this difficulty, have
authoritatively advanced positions which have just been incidentally
noticed, and will now be stated more fully.

The idea of diminished responsibility, in cases of abnormal ex-
citement, is already familiar to the law. Homicide in hot blood is
not murder but manslaughter ; yet, what is rage but a short frenzy,
and how difficult is it to distinguish such frenzy from the mania
transitoria of the alienists ? A drunken man engages in a brawl
and shoots an innocent stranger ; and here, as his mind was so
stupefied by drink that he was incapable of a specific intent to take
life, the offence is reduced to murder in the second degree. Or he
receives and passes a counterfeit note when in the same condition,
and here his drunkenness is admissible to show that he did not
know the note was counterfeit. Or a series of men, swept away
by religious or political excitement, fall into such a highly charged
and abnormal state of mind that they are incapable of accurate
perception, and here, then, homicide committed when in such a state
is held to be reduced to murder in the second degree.^

How are these last states distinguishable from other well-known
exciting influences ? What is there that mitigates guilt in cases

' See infra, § 181.

PREFACE TO THE THIRD EDITION.

where the patient is advanced one degree in the insane scale, but
will not mitigate it when he is advanced two degrees ?

By the Austrian and Bavarian codes this question has been
recently answered by the recognition of degrees in penal responsi-
bility. Diminished responsibility (verminderte Zurechnungsfahig-
keit) is distinctively and authoritatively defined as a condition in
which the mind is incapable of calm and exact premeditation or
conception, and to this condition a lesser grade of punishment is
assigned. And the same principle is adopted juridically by the
North German courts. In England there is no statutory adoption,
so far as concerns insanity, of such diminished responsibility, nor
have the courts as yet proceeded so far as to look upon nervous or
mental disease as lowering the grade of guilt, emphatic as they are
in recognizing the entire suspension of responsibility when insanity
destroys the capacity of distinguishing between right and wrong.
But the reform which the courts, in their distinctively judicial
capacity, have felt unable to effect, has been brought about by the
joint action of judiciary and executive. Thus in two remarkable
cases of homicide, those of Watson and Edmunds, hereafter fully
noticed,^ the defence being insanity, but the proof amounting
merely to insane predisposition, or at the highest to a light and
incipient stage of insanity, while the jury were directed to convict,
yet, after conviction of the capital crime, on application to the
crown, in which the judges joined, capital punishment was com-
muted to imprisonment for life.

In the United States, in construing the statutes already noticed
as establishing degrees in homicide, the courts^ have uniformly
held, as has been already noticed, that, when through drunkenness
the defendant was incapable of premeditation or of specific intent,
then only the second degree of murder is reached. The same
relaxation has been applied, not only in the United States, but in
England, to cases of larceny and other fraudulent crimes Avhen the

> See infra, §§ 166-173. 2 See infra, §§ 214-227.

xvi

PREFACE TO THE THIRD EDITION.

party's mental condition was such through drunkenness that he was
incapable of guilty knowledge or intent. And in Pennsylvania, in
a series of cases of riotous homicide committed by parties in a high
state of political and religious excitement, the courts humanely and
wisely accepted the principle already stated, that there may be a
fury and distraction of mind in which the capacity to comprehend,
to compare, to weigh, and to premeditate may be temporarily so
far depressed or disturbed as to bring the offence within the defini-
tion of murder in the second, as distinguished from that of murder
in the first degree."^

From the scope of the reasoning which has led to such results, it
is impossible to withdraw cases of mental excitement and disturb-
ance, which, though not amounting to such mature insanity as to
utterly suspend responsibility, yet prevent the patient from forming
calm, premeditated, and specific criminal designs. Slow as have
the courts been in reaching this conclusion, we may now regard it
as gradually winning judicial acceptance ;^ and, if so, we may view
the law as having received an expansion philosophically consistent
with its own principles, and bringing it in full accord with the
mature and humane renditions of science. Heretofore " moral
insanity" and "insane monomania" have owed the little practical
favor they have wrung from courts and juries to the fact that there
were cases in which their recognition seemed to be the only way of
escaping a verdict which would involve the penalty of death. The
consequence was that the public was outraged, sometimes by the
acquittal, on the ground of insanity, of men who in no other rela-
tion would be viewed as insane, and sometimes by the conviction
and execution of men who, though not fully insane, would in no
relation be regarded as fully and perfectly responsible. The mod-
ification of the law now introduced avoids both these extremes. It
says, on the one hand, that men not fully and perfectly insane are
not to be acquitted of crime. It says, on the other hand, that they

» See infra, §§ 181, 200. ' " See infra, § 200.

VOL. I. — B Xvil

PREFACE TO THE THIRD EDITION.

are not to be convicted of those higher grades of calm and specific
guilt of which they were not capable. It judges them according
to their lights, and assigns to them that well-known grade of modi-
fied guilt which belongs to those who do wrong, wilfully, indeed,
and intentionally, but whose illegal acts are the consequents of such
passion as destroys in them the capacity of accurate guilty knowl-
edge or complete guilty design.

Such is the shape into which the law of insanity is now gradually
settling. That the change is one of natural and logical develop-
ment will at once be seen ; but with regard to it, so far as concerns
the question of time, and therefore, so far as concerns the present
edition of this work, two circumstances are to be particularly
noticed. The first is that the development here spoken of has, on
the law side, evidenced itself distinctively in the last ten years.
The second is that, on the psychological and medical side, it has
only been within the last ten or fifteen years that the opinions of
experts and of scientists have presented themselves in such a body
as to enable the full voice of science and experience in this relation
to be heard. The results on both sides of the inquiry are exhib-
ited in the following pages. What has been just said is mainly
designed for the purpose of explaining why the text of the former
editions has been in a large measure thrown aside, and why, in its
place, is presented what is substantially a new treatise.^

The author takes this method of expressing his acknowledgments
to T. C. CooGAX, Esq., and Nathan Franks, Esq., for aid rendered
in examination of authorities.

' On the special topic of this preface may be consulted Dr. Hammond on
" Reasoning Mania," Jour. Nerv. and Ment. Diseases, Jan. 1882. Attention is
also directed to the valuable reports of Mr. Richard Vans on Prison Discipline.

xviii

TABLE OF COXTENTS.

BOOK I.
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

CHAPTER I.

CONTRACTS, §§ 1-18.

I. Lunacy, § 1.
II. Intoxication, § 16.
III. Marriage contracts, § 17.

CHAPTER II.

WILLS, §§ 19-98.

I. Capacity", § 19.
II. Delusions, § 34.

III. Lucid intervals, § 61.

IV. Intoxication, § Qo.

V. Undue influence and fraud, § 76.
VI. Presumptions, § 81.

CHAPTER IIL

COMMISSIONS OF LUNACY, §§ 99-107.

CHAPTER IV.

INSANITY AS A DEFENCE TO CHARGE OF CRIME, §§ 108-201.

L General rule, § 108.
11. Special exceptions, § 116.

xix

CONTENTS.

CHAPTER V.

INTOXICATION AS A DEFENCE TO CHARGE OF CRIME, §§ 202-217.

CHAPTER VI.

INSANITY AS RELATED TO LIFE INSURANCE, §§ 229-241.

CHAPTER VII.

INSANE PERSONS AS WITNESSES, §§ 242-245.

CHAPTER VIII.

EVIDENCE, §§ 246-279.

I. Mode of proof, § 246.
II. Witnesses, § 257.
III. Books, § 279.

BOOK II.

MENTAL UNSOUNDNESS CONSIDERED PSYCHO-
LOGICALLY.

CHAPTER I.

GENERAL THEORIES, §§ 305-337.

I. Preliminary observations, § 305.
II. Psychical theory, § 319.

III. Somatic theory, § 320.

IV. Intermediate theory, § 329.

CHAPTER II.

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED, §§ 338-411.

I. By whom, § 338.
II. At what time examinations should be made, § 341.
III. By what tests, § 345.

CONTENTS.

CHAPTER III.

FROM WHAT MENTAL UNSOUNDNESS IS TO BE DISTINGUISHED,

§§ 412-460.

I. Emotions, § 412.
II. Simulated insanity, § 443.

CHAPTER IV.

MENTAL UNSOUNDNESS AS CONNECTED WITH PHYSICAL DISORDERS,

§§ 461-530.

I. As connected with derangement of the senses and disease, § 461.
II. As connected with sleep, § 482.
III. As affecting the temperament, § 502.

CHAPTER V.

MENTAL UNSOUNDNESS AS AFFECTING THE MORAL SENSE,' §§ 531-681.

I. General " moral insanity," § 531.
II. Special "moral monomanias," § 567.
III. Prominent forms of supposed monomania, § 578.

CHAPTER VI.

IDIOCY, IMBECILITY, AND DEMENTIA, §§ 682-701.

I. Idiocy, § 682.
II. Imbecility, § 692.
III. Dementia, § 698.

CHAPTER VII.

DELIRIUM, §§ 702-722.

I. General delirium, § 702.
II. Partial delirium, § 706.

CHAPTER VIII.

DELUSIONS AND HALLUCINATIONS, §§ 723-743.

CHAPTER IX.

LUCID INTERVALS, §§ 744-752.

xxi

CONTENTS.

CHAPTER X.

TREATMENT OF INSANE CRIMINALS, §§ 753-770.

I. Eetribution, § 754.
II. Prevention, § 763.

III. Example, § 765.

IV. Reform, § 766.

CHAPTER XI.

PSYCHICAL INDICATIONS, §§ 771-833.

I. Prior to crime, § 773.
II. At crime, § 781.

III. After crime, § 788.

IV. General conclusions, § 830.

xxu

TABLE OF CASES.

[the numbers refer to sections.]

Baker's case 578

Baker v. Baker 13, 18

V Lewis 77

Baldwin v. Dunton 1

V. Parker 79

V. State 257

Ball V. Manning 1

Bank of Oil City v. Ins. Co. 238

Bank v. McCoy 7, 16

V. Moore 1, 6 «

Banker v. Banker 17

Banks v. Goodfellow 3, 23, 46, 48, 88

Bannatyne v. Bannatyne 21, 68, 64, 83,

255
Barker's case 101

Barker, in re 101

Barnes v. Barnes 24, 77, 78, 81

Achey v. Stephens

3, 61,

250

Adams v. Kerr

242

Addington v. Wilson

Adkins v. Ins. Co.

239

Allen V. Berryhill

8, 14

, 34

Allis V. Billings

Allman v. Pigg

, 78

Am. Seaman's Friend Soc

Sopper

Ames' Will

Anderson v. State

174

Andress v. Weller 25, 28

,69,77

,87

Andrews' case 162, 269,

375

, 388,

116,

707,

712

Angel Will case

Arnhout, in re

101,

107

Arnold v. Richmond Iron Works

Ashcraft v De Armand

Atkinson v. Medford

17 !

Atty. Gen. v. Parnther

Aurentz v. Anderson

, 61 1

Austen v. Graham

29 :

Ayrey v. Hill 12,

61,

62, 69

,70i

Barnsley, ex parte
Barr's case
Barret v. Buxton
Barron's case
Bates V. Bates
Baxter v. Abbott

V. Earl of Portsmouth
Beals V. See
Beaubien v. Cicotte
Beaumont's case
Beavan v. McDonnell
Behrens v. iMcKinsie
Belcher v. Belcher
Beller v. .Jones
Bellingham's case
Bennett v. State
Benoist v. Murria
Bernett v. Taylor
Beverly's case
Bicknell v. Bicknell
Bigelow V. The Ins. Co
Bird V. Bird
Birdsong v. Birdsong
Bishop V. Spining
Bitner v. Bitner
Black V. Ellis
Black's Estate
Blackburn v. State
Blackford v. Christian
Blakeley v. Blakeley
Blakeley's Will
Blanchard v. Nestle
Blandy's case
Bleecker v. Lynch
Bliss V. The R. R.
Boardman v Woodman
Bonard's Will
Booth V. Kitchen
Borradaile v. Hunter
Boswell V. Com.
Boughton V. Knight

101
443

828

16, 77

375, 388

6, 8

25, 257

1, 101

16 6

679

205

30, 35

242

4, 12

239

7, 16 6

259

24, 69

100

160

7, 25, 29, 30

23, 77

779, 780

25,

Bovard v. State
Bowler's case
Boyce v. Smith

16 a

37, 60, 61

35, 59

78, 81

230

214

25, 26, 30, 34, 41,

46, 242

145

117

XXIU

TABLE OF CASES.

Boyd V. Boyd

V. Eby
Boylan v. Meeker
Boyse v. Rossborough
Bradford v. Abend
Bradley v. State
Breasted v. The Farmers'

Trust Co.
Breed v. Pratt
Brick V. Brick 8, 29, 7

Bricker v. Lightner
Brill V. Flagler
Broadwater v. Darne
Brogden v. Brown
Brooks V. Barrett
Brown v. Com.

V. Joddrell

V. Riggin

V. Torrey

V. Ward 25,

Browne v. Molliston
Browning v. Reane
Brydges v. King
Buckminster v. Perry
Bundy v. McKnight
Burch V. Burch
Burdett v. Thompson
Burger v. Hill
Burk's Will
Burke v. Allen
Burroughs v. Ricbman
Burrow's case
Burrows v. Burrows
Butler V. Ins. Co.

25, 34, 62
85

26, 77, 80
18

375, 377
Loan and

232, 234

6 a, 30, 78, 82

77, 78, 80, 81

258

259

241

160

2, 24, 61

29, 30, 35, 59

78, 87

260

25, 82

795

5, 6 a

117, 209

241

257

Cadwallader v. West

77, 81, 82

Caleb V. State

259

Campbell v. Hooper

V. Ketchnm

166

V. Spencer

16a

V. State

242

Canada's Appeal

Canfield v. Fairbank

Carpenter v. Calvert 24,

26,

29, 33, 81

V. Carpenter

2, 61, 241

Carr v. Holliday

Carroll's Will

. 77

Cartwright v. Cartwright

250

Castner v. Sliker

257, 260

Caulkins v. Fry

6«, 16

Cavender v. Waddington

Chambers v. Queen's Proctor

63, 241

Chandler v. Barrett

V. Ferris

77, 78

Chapman v. Greaves

•242

V. Ins. Co.

239

Chase v. Lincoln

260

Chew V. Bank

Children's Aid Soc. v. Loveridge 78, 90
Choice V. State 90, 174, 259, 643

Christmas v. Mitchell 95

Clapp V. FuUerton 40, 258

Clark V. Stansbury 79, 81, 82

V. State 257

Clarke v. Fisher 25, 80, 61, 62, 63, 81,

83
V. Sawyer
Clary v. Clary
Clearwater v. Kimler
Clement v. Mattison
Clift V. Schwabe

Clifton V. Murray
Coffey V. Ins. Co.
Coit V. Patchen
Colah, in re
Cole V. Cole

V. Bobbins
Cole's Will
Coleman v. Com.
V. Frazer
V. Robertson
Colhoun V. Jones
Collins, in re

V. Townley
Combe's case

Com.

23, 77

257

236

241

35, 40, 82

100

35, 40, 41

242

34, 84

104

27, 89, 90

117

204

214

144, 159, 198
117, 174

214
104 a

145, 157, 117
242
259

V. Rogers 117, 126, 134, 156, 174,
259, 375
104
829
210
257
258
25, 26, 78, 80
25, 26, 77
81
16 a, 16c
233, 237
25
205
16a
35, 40
83

V. Farkin
V. Green
V. Haggerty
V. Hart
V. Haskell
V. Heath
V. Jones
v., Kirkbride
V. Mosler
V. Reynolds
V. Rich

V. Schneider

V. Scott

V. Smith

V. Sturtivant

V. Wilson
Comstock V. Hadlyme
Converse v. Converse
Convey's Will
Cooke V. Clayworth
Cooper V. Ins. Co.
Cordrey v. Cordrey
Cornwell v. State
Cory V. Cory
Cotton V. Ulmer
Couch V. Couch
Coverston v. Ins. Co.
Cram v. Cram
Cranraer, ez parte
Crawford, in re
Crawford v. Scovel
Creely v. Ostrander

234
257
101
107
10, 14
87

XXIV

TABLE OF CASES.

Crispell v. Dubois

Crolius V. Stark

Crowuinshield's case

Crowninshield v. CrowniiisLield

Crown V. Thornley

Crump V. Morgan

Cudney v. Cudney

Cumming, in re

Cummings v. Henry

Cuneo V. Bessoni

Cunliife v. Sefton

Currie v. Child

Curtis V. Brownell

Cuthbertson's Appeal

Dalton V. Dalton
Dane v. Kirkwell
Daniel v. Daniel

V. Hill
Darby v. Cabann6
Davis V. Davis
V. Rogers
V. State
Day V. Day
Dean v. Ins. Co.

V. Negley
De Gogorza v. Ins. Co.
Delafield v. Parish
Den V. Bennett

V. Johnson

V. Vancleve
Dennet v. Dennet
Dennis v. Weekes
Denton v. Franklin
De Silver's Estate
Dew V. Clark
Dewitt V. Barley
Dexter v. Hall 5

Dicker v. Johnson
Dickinson v. Barber
Dietrick v. Dietrick
Doe V. Reagan
Dornick v. Pieichenback
Dorsey v. Warfield
Dove V. State
Dozier, in re
Drake's Appeal
Draper v. Saxton
Drummond v. Hopper
Dufaur v. Ins. Co.
Duffield V. Robeson
Dulany v. Green
Uumond v. Kill'
Dunham's Appeal
Durling v. Loveland

35,

. 87

785

G a

241

100

242

Eastabrook v. Ins. Co.
Eaton V. Eaton
V. Perry
Eckert v. Flowry
Eddy's case
Edmund's case
Edwards %). Fincham
Egbert v. Egbert
Eggers V Eggers
Elder v Ogletree
Elliott V. Ince
Elliott's Will
Elston V. Jasper
Emery v. Hoyt
Encking v. Simmons
Errickson v. Field

loL

233, 237

9, 10

78, 80

77, 90

165, 167, 375

30, 258

33, 35

258

255

28, 83

6 a, 9

1, 13

7, 8

25, 29

795

Evans v. Arnold

30, 35

1, 6, 8

V. Horan

16, 16c

30, 79

Fagnan v. Knox

257

Fairchild v. Bascomb

257, 259

259

Farley v. Parker

Farnum v. Brooks

233

Farr v. O'Neall

38, 78

Farrell v. Breman

258

239

Farrer v. State

174, 815

23, 25

Faulder v. Silk

Fauntleroy's case

784

25, 77, 9U

Fearon, ex parte

Fennell v. Tait

56, 242

Fentress v. Fentress

101

Ferguson v. Barrett

255

Fisher v. People

159

Fitch V. Ins. Co.

238

41, 42

Fitzgerald v. Reed

258

Fitzhugh V. Wilcox

6 a, 8

6 a, 9, 259, 41

Flanagan v. Fenlaysou

258

V. People

174

258

Florey v. Florey

Ford V. Ford

257, 258

Forman v. Smith

23, 77

Foss V. Hildreth

258

Foster v. Means

257

Foote V. Tewksbury

100

Fowler v. Ins. Co.

232

77, 82

Francke v. His Wife

101

259

Fraser v. Jennisou

Frazer v. Frazer

2, 61

236

Freed v. Brown

7, 9

7, 28, 82, 241

Freeman's trial

158

16a

Freeman D. People 117,

145, 174, 158

Freeth's case

158

French v. French

16 6

Frere v. Peacock

Friery v. People

210

FuUeck V. Allison

Fulton V. Andrews

XXV

TABLE OF CASES.

Gaffey's case
Gahagan v. R. R.
Gaither v. Gaither
Galpin v. Wilson
Gamble v. Gamble
Gangwere's Estate
Gardiner v. Gardiner
Gardner v. Gardner
V. Lamback
V. Maroney
Garrison v. Blanton
Garrow v. Brown
Gartside v. Isherwood
Garvin v. Williams
Gass V. Gass
Gay V. Ins. Co.
Geale, in re
Gelirke v. State
Getchell v. Hill
Gibson's case
Gibson v. Gibson

V. Jeyes

V. Soper
Gilreath v. Gilreatb
Gleespin, in re
Glover v. Hayden
Goble V. Grant
Gombault v. Pub. Adrar.
Goodell V. Harrington
Goodridge's case
Gore V. Gibson
Grabill v. Barr
Grainger v. State
Grant v. Thompson
Gray v. Obear
Greenwood v Greenwood
Griffith V. Diffendeitter
Griffiths V. Robins
Grubbs v. McDonald
Guiteau's case
Guthrie v. Price

448

261

27, 82

184

78, 258

65,69, 71, 77

23, 29, 85

101

25, 26, 74, 257

234, 270

258

259

375

258

101

9, 10, 12, 13, 14

24,

' I,

61,

6 a

811

16, 16 f/, 16 c, 65

126

5, 6, 257

101

18, 25

162, 552, 603, 679

Hacker v. Newborn 77

Hadfield's case 177, 679

Hall V. Hall 41, 78

V. Unger 41, 241

V. Warren 2, 62

Hallet V. Oakes 16 c

Halley v. Webster 30, 62, 61

Halse, ex parte 101

Haile v. State 205

Hamilton v. Hamilton 29

Hancock v. Peaty 1 7

Hand v. Burrows 242

Handley v. Stacey 78

Harden v. Hays 30, 61, 62

xxvi

Hardy v. Merrill
Harford v. Morris
Harnett v. Garvey
Harper's Will
Harrell v. Harrell
Harrington v. Stees
Harris v. Betson
Harris's case
Harrison v. Rowan

25,

Harrison's Will
Hart V. Deamer
Hartman v. Ins. Co.
Harvey v. Sullens
Harwood v. Baker
Hassard v. Smith
Hathaway v. Ins. Co. 237,
Hathorn v. King
Haynes v. Swaim
Hazard v. Hefford
Hebert v. Winn
Henderson v. McGregor
Henry v. Fine
Hicks V. Marshall
Higgins V. Carlton 25,

Hinchman v. Richie
Hines v. Potts
Hirsh V. Trainer
Hix V. Whittemore
Hoard v. Peck
Hoge V. Fisher
Hoge's Will
Holcomb V. Holcomb
Holden V. Meadows
Holland v. Miller
Holmes' case
Holroyd's case
Holyland, ex parte
Hope V. Everhart
Hoppin's case
Hopple's Estate
Hopps V. People
Horbach v. Denniston
Horn V. Pullman
Home V. Home
Hovey v. Hobson
Howard v Coke
V. Moot
Howe V. Howe
Howell V. Taylor
Hubbard v. Hubbard
Hughes V. Murtha
Hulings V. Laird
Hunt V. Hunt
Hunter v. State
Huntington's case
Hutchinson v. Brown
V. Sandt
V. Tindell

257, 258

259

78
78

160

26, 61, 77, 96,

257

6 a

284, 288

25, 82, 90

25, 85

241, 2.57, 259

25, 77, 258

2, 63

1, 6, 7, 8

6 a

29. 30,78,81,

84, 87, 258

104 a

6 a

3, 51, 250

259

61, 250

18, 77, 307

242

162

779

158, 712

28, 77, 78

159

25, 78, 81, 87

25, 77

9, 10

258

25, 79

77, 79

100

787 a

158

16 6

6 a

16 a, 16 6

TABLE OF CASES-

Insurance Co. v. Graves 177, 196,

V. Groom

234

V. Hunt

V. Isett

V. Lawrence

V. Moore

V. Peters

234

V. Rodel

231

Isler V. Baker

Jackman's Will
Jackson v. King

V. Vandusen
Jacobs V. Richards
Jacox V. Jacox
James v. Langdon
Jamison v. Jamison
Jenckes v. Smithfield
Jenisch's case
Jenkins v. Morris
Jenners v. Howard
Joest V. Williams
Johns V. Fritchey
Johnson v. Medlicott
V. Moore
V. State
Jones V. Perkins
Julke V. Adam

235,
269
237
242
234
239
234
241
257
11

61, 62, 250

255

7, 101

25, 28. 90

476

16, 16 c

5, 16 6

258

6, 7, 16 c

Keeble v. Cummins 6

Kelley v. State 205

Kelly V. Miller 36

Kempsey v. McGinnis 259

Kendall v. May 1, 8, 16 c, 242

Kessinger v. Kessinger 82

Kevil V. Kevil 81

Key V. Davis 9

V. HoUoway 65, 69

Killian v. Badgett 7

Kinleside v. Harrison 27, 80, 87, 91

King V. Bryant 16

Kings County Asylum, in re 104 a

Kingsbury v. Whitaker 25, 29, 63, 71,

250

Kinne v. Johnson 25, 77, 78

V. Kinne 7, 25, 77

Kirkwood v. Gordon 87

Kise V. Heath 29

Knapp's case 785

Kneedler's Appeal 6 a, 8

La Bau v. Vanderbilt

25, 29, 35, 59

Lackey v. Lackey

101

Lagay v. Mansion

6 a, 7, 10

Lamoree's case

107

L'Amoureux v. Crosby

Lang V. Whidden

Laros v. Com.

377

La Rue v. Gilkyson

1, 5

Lasher, in re

101

Lathrop v. Board of Foreig

(1 xMissions 35

Lawrence v. Inss. Co.

239

V. Steel

24, 26

Lawton's case

481

Lee V. Dill

V. Lee

29, 36, 78, 82

V. Lee

139

V. Scudder

Leech v. Leech

35, 87

Leeper v. Taylor

25, 78

Lefroy's case

552, 786 a

Lemon v. Jenkins

Leverett v. Carlisle

Levett's case

128, 485

Lewis's case

Lewis V. Baird

61, 250

V. Lewis

Life Association v. Waller

234

Life Ins. Co. v. Terry

160, 231, 237

Lilly V. Waggoner

24, 62

Lincoln, ex parte

101

V. Buckmaster

1, 7

Lindsey v. Lindsey

Livingston v. Kiersted

242

Logan V. McGinnis

258

Longchamp v. Fish

Loomis V. Spencer

Lowder v. Lowder

Lowe V. Williamson

89, 258

Lozear v. Shields

1, 3, 8

Lucas V. Cannon

77, 81

i>. Parsons

40, 62

Ludwick V. Com.

105

Lynch v. Clements

Lyon V. Home

Lyons v. Van Riper

25, 77, 90

Main v. Ryder

Mann v. Betterly

Mallory v. Ins. Co.

239

Mansfield v. Watson 16, 16 a,

166

Marmon v. Marmon

Marquis of Winchester's case

Marsh v. Tyrrell

Marshall v. Flinn

Martin v. Mitchell

V. Perkins

xxvii

TABLE OF CASES.

Marvin v. Marvin
Mason, in re
Matchin v. Matchin
Matthews v. Baxter
Matthiesson v. McMahon
Maverick v Reynolds
May V. Bradlee
McAdam v. Walker
McAllister v. State
McCiackey v. State
McClintock v. Curd
McClure v. Ins. Co.
McCormick v. Littler
McCrillis v. Bartlett
McDaniel v. Crosby
McElwee v. Ferguson
McFarland's case

McGinnis v. Com.
McGregor's case
Mclntire v. McC mn
McLaughlon's Will
McMabon v. Ryan
McNaghten's case

M'Daniel's Will
M'Sorley v. M'Sorley
Means v. Means
Meares, in re
Meek v. Perry
Meeker v. Meeker
Menkins v. Lightner
Merrill v. Rush
Merritt i'. Iiis. Co.
Middleborough v. Rochester
Miller v. Finley

V Smith
Mitchell V. Kingman

V. Thomas
Molten V. Camroux

V. Henderson
Monroe v. Barclay

V. State
Moody V. Bibb
Mooney v. Olsen
Moore v. Hershey

V. Ins. Co.

V. Moore

V. Wolsey
Mordaunt v. Moncrieffe
V. Mordaunt
Morey's Appeal
Morgan, in re
Morgan v. Boys
Morrison v. AlcLeod

V. Smith
Muller V. The Association
Murray v. Carlin
Myatt V. Walker

XXVlll

78. 81
101

7, 16

1, 7, 8

79, 81
63

117

257

232

1. 2, 7

1, 13, 16, 16c

77, 78

126, 152, 160, 174,

412

105

200

117, 119, 145, 578,

679

16 c

16 ff, 61,250

234, 241

25,

259

5, 16 a

7, 8

100

126

109

284

239

106

101, 107

29, 86

16a

81, 82

Nailer v. Nailor 101

Nash V. Hunt 79

Neal's case 270
Needham v. Ide 101, 260

Negro Jerry v. Townshend 259

Neill V. Morley 1

Nelson v. Buncombe 1

Newell V. Fisher 16

Newhouse v. Godwin 28, 82

Newton v. Ins. Co. 232
Nichol V. Thomas 6 a, 10, 14, 19

Nichols V, Biuns 63, 83

V. Nichols 18

V. State 215

Nimick v. Ins. Co. 284

Noel V. Karper 255

Northington, ex parte 1, 8

Norton v. Relley 59

Nottridge v. Ripley 104 a

Nussear v. Arnold 77

Oliver v. Berry 95, 96

O'Neall V. Parr 78

Osmond v. Fitzroy 28

Osterhout v. Shoemaker 3

0 wing's case 1

Owston, in re 95

Paine's case 787 a

Palmer's case 774

Pancoast v. Graham 65

Parfitt V. Lawless 78, 81, 82

Paske V. OUatt 82

Pate's case 679

Patrick v Ins. Co. 288

Patterson v. Patterson 77

Payn, in re 100

Pearl v. McDowell 1

Peck V. Carey 65, 74

Penfold V. Ins. Co. 239

Pennsylvania v. M'Fall 205, 214

People V. Coffman 117, 174

V. Coleman 133

V. Eastwood 261

V. Furbush 578

V. Garbutt 875

V. Griffin 578

V. Hammell 214

V. Klein 578

v. McCann 259

V. McDonell 174

V. McLeod 126

V. New York Hospital 242

TABLE OF CASES.

People V. Pine

V. Robinson

V. Rogers

V. Sanford

V. Shorter

V. Smith

V. Sprague

V. Wheeler
Perkins v. R. R.
Persse, ex parte
Pettit, ez parte
Peterson's case
Phadenhauer v. Ins. Co.
Phelan v. Gardiner
Phillips V. Ins. Co.

V. Starr
Phipps V. Van Kleeck
Pickett V. Sutler
Pierce v. Ins. Co.

V. Pierce
Pigg V. State
Pigman v. State
Pingree v. Jones
Pirtle V. State
Pitt V. Smith
Pittenger v. Pittenger
Plank, ex parte
Pool V. Pool
Poole V. Richardson
Porter v. Campbell
Portsmouth v. Portsmou
Potts V. House
Powell V. State
Prentice v. Achorn
Price V. Berrington
Purdon v. Longford

Queen v. Farmer
V. Ley

126, 377, 566

214

210

257

126, 174

375

117, 578

805

259

100

101

806

234, 237, 241

234

259

239

65, 69, 72, 79

239, 259

205, 215

205,214

5, 10, 16, 16 a

166

117

258, 260

23, 87, 258

257

166

7, 8

7,8

399
158

Rabb V. Graham

77, 78

Rabello's case

578

Ragan v. Ragan

Rambler v. Tryon

24, 2.57

Rankin v. Rankin

77, 257

Rathbun v. Rathbun

Rawdon v. Rawdon

Ray V. Hill

Read v. Legard

Real V. People

257, 258

Reed's Will

88, 90

R. V. Barton

117, 152, 164

V. Bellingham

679

V Burton

127

V. Carroll

216

R. V. Davies
V. Davis
V Dwerryhouse
V. Eriswell
V. Frances
V. Francis
V. French
V. Gamlen
V, Goode
V. Goule
V. Grindley
V. Hadfield
V. Haynes
V. Higginson
V. Hill
V. Jackson
V. Law
V. Lawtoa
V. Layton
V. Leigh
V. McNaghten

V. Meakin
V. Milligan
V. Monkhouse
V. Moore
V. Morley ,
V. Offord
V. Oxford

200 ffl
209
200 a
242
259
679
491
215
117, 164, 200 a
399
216
679
152
117, 164, 259
50, 242
491
118
481
117, 164, 250
165
117, 119, 145, 578,
679
204, 209, 210
490
215
215
242
117
117, 119, 164, 375, 578,
679
679
201
98
115, 152, 259
165
117, 250
215
250
204, 209, 210, 216
127, 165

V. Pate

V. Pearce

V. Pritchard

V. Richards

V. Southey

V. Stokes

V. Stopford

V, Taylor

V. Thomas

V. Townley

V. Tucket 375

V. Turton 200 a

V. Vaughan 117

V. Vyse 118

V. White 606

V. Whitfield 98

Reinecker v. Smith 16

Rennie's case 204, 209

Reynolds v. Adams 81

V. Decliaums 16

V. Reynolds 95

V. Robinson 259

V. Root 25, 27, 29, 80, 81,

87, 90

Rhodes v. Bate 6

Rice V. Peck 5, 16 a

Richardson v. Dubois 1

V. Strong 1,16 a

Riddell v. Johnson 30, 82

Ridgeway v. Darwin 101

Riggs V. The Society 8

xxix

TABLE OF CASES.

Ritter's Appeal
Roberts v. People

V. State

V. Trawick
Robinson v. Adams
Robinson's case
Roe V. Taylor
Rogers's case
Rogers v. Diamond

V. Walker
Rollwagen v. Rollwngen
Rudy V. Ulrich
Runyan v. Price
Rush V. Megee
Rusk V. Fenton
Russell, in re

V. State
Rutherford v. Morris

V. Ruff

198, 209

126

30, 34, 35, 59

814

210

77, 80

258

2, 30, 61, 62

8, 9, 10

101

259

24, 81, 84,

90, 257

6, 7, 16 6

Sadleir's case

821

iSarbach v. Jones

242

Sargeson v. Sealey

Sawyer v. Lufkia

1, 16c

V. State

377

Say V. Barwick

16 a

Scanlan v. Cobb

217

Scheffer v. Ins. Co.

234

Scribner v. Crane

77, 90

Scruhy v. Fordham

Seaman's Friend Soc. v. Hopp

er 39

Searle v. Galbraith

5, 7

Sears v. Schafer

258

Seaver v. Phelps

Sechrest v. Edwards

77, 78

Seeley v. Price

6, 7

Sequine r. Sequine •

Seymour v. Delancy

16a, 16 6

Shailer v. Bumstead

Shakespeare v. Markham

1, 17, 90

Shannahan v. Com.

210

Shaul, ill re

101

Shaw V. Dixon

101

V. Thackray

166

Sherman's case

790

Sherwood v. Sanderson

101

Shorter v. People

126, 174

Shropshire v. Reno

Sickles' case

158

Sill V. McKnight

105

Sills V. Brown

259

Sims V. McClure

Sisson V. Conger

258

Skidmore v. Romaine

1, 8,- 76

Sloan V. Maxwell 25, 77, 87, 258

Sloo's case

126

Smee v. Smee 25, 30,

34, 46, 47

7, 209,
373,

33, 45
29

50, 242,

2,3,
161,

117,
145,

Smith V. Com.

V. Kramer

V. Smith

V. Tebbitt
Smith's Will
Snook V. Watts
Snow V. Benton

Snyder v. Sherman 7E

Somers v. Pumphrey
Somerset (countess of), case of 787,
Somes 0. Skinner
Spear's case
Spear v Richardson
Spittle V. Walton
Sprague's case
Stackhouse v. Horton
Stancell v. Kenan
Standerman's case
Stanton v. Wetherwax
Staples V. Wellington
Starrett v. Douglas
State V. Brandon

V. Christmas

V. Coleman

V. Felter

V. Gardiner

V. Gut

V. Hundley

V. Huting

V. John

V. Klinger

V. Lawrence

V. McCants

V. McGonigal

V. Medlicott

V. Patten

V. Pike 24, 108, 111, 190,

V. Pratt

a. Powell

V. Pieddick i

V. Richards

V. Scott

V. Se.well

V. Spencer

V. Thompson

V. Turner

V. Wellington

V. Windsor
Stedham v. Stedham
Steed V. Galley
Stevens v. State

V. Vancleve
Stewart v. Lispenard
St. Leger's Appeal
Stone V. Damon

Stormont v. The Assurance Co.
Stringfellow's case
Stuckey v. Bellah
V. Mathes
Stulz V. Schaefiie
Sutherland v. Hawkins

117,

117, 145,

205,
117, 174,

61, 66,
136,

108,
25, 26, 61, 77

175
375
30
, 61
, 59
255
377
, 81
1
805
3,5
158
259
243
573
40
25
476
40
241
65
174
375
258
160
174
160
205
145
205
259
174
205
206
259
201
258
105
259
, 61
174
126
250
250
205
205
250
174
74
62
159
, 83
23
82
6a
236
789
257
17
,78
257

XXX

TABLE OF CASES.

Sutton V. Sadler
V. Sutton
Swan V. State

Tate V. Tate
Tawney v. Long
Taylor v. Creswell

V. Kelley

V. Patrick
Tebout, in re
Temple v. Temple
Thomas v. Stump
Thompson v. Davitte

V. Kyner 25,
V. Leach
V. Quimby
V. Thompson
Tiebborne's case
Tingley v. Cowgill
Titcomb v. Vantyle
Titlow V. Titlow
Tobin V. Jenkins
Tod's case
Todd V. Fenton
Tomkins v. Tomkins
Tomlinson, cz j^arle
Towushend v. Townshend
Tozer v. Saturlee
Tracy, ex parte
Trish V. Newell
Trumbull v. Gibbons
Tufnell V. Constable
Turner v. Cheeseman

V. Hand

V. Meyers

V. Rusk
Tyson v. Tyson

U.S.

205, 214

28, 35, 77, 78

30, 61

•25

107

26, 69, 78, 83

5, 9

35. 36

35, 36

786

77, 81. 82

1, 7, 101

257, 258

24, 77, 78

799

78, 81

24, 28

101

257

301, 107

24, 26, 250

29, 84

3, 9, 61

24, 78

rzook V. Com.

787 a, 824 a

V. Clarke

205

V. Drew

204, 205

V. Forbes

204

V. Hewson

155

V. Holmes

174

V. McGlue

204, 205, 259

V. Reynolds

137

V. Roudenbush

215

V. Shultz

• 117, 174

Valpey v. Rea
Van Alst v. Hunter
Vanauken, ez parte

87, 89
33, 90, 258

Vance v Com. 117, 174

Van Deusen v. Sweet 9

Van Guysling v. Van Kuren 25

Van Horn v. Hann 1, 16c

Van Zandt v. Ins. Co. 232, 234

Wade V. Colvert 16

Wadsworth v. Sherman 6 a

Wager, ez parte _ 101, 107

Wager v. Reid ' 16 a, 16 6

Wainwright's Appeal 82, 79

Wait V. Breeze 79

Walker v. Davis 16

V. Walker 258

Waltz's case ' 443

Wampler v. Wampler 96

Ward V. Dulaney 17

Ware v. Ware 258

Waring v. Waring 42

Watson's case 166

Interdiction 101, 104

Watson V. Watson 90

Webster's case 808
Weed V. Ins. Co.
Weems v. Weems 101
Weir V. Fitzgerald
Weir's Will

Wenraan (Lord), case of,
Weston's case
Wetter v. Habersham
Wheeler v. Alderson
Whitaker's case
White V. Cox

V. Driver

V. The Assurance

V. Wilson

Whitenach v. Stryker

Wigglesworth v. Steer

Wightman v. Wightman

Wilder V. Weakly 8

Wilkinson v. Moseley ^ 257, 259

V. Pearson ' 257

Willemin v. Dunn 1, 7, 90

Willey V. Portsmouth 259

Williams' Estate 77

Williams v. Goude 78

V. Inabnet 16

V. Lee 257

V. Wentworth 1

Wilson V. Bigger 16 a

V. Moran 82

V. Oldham 7

Winter's case 106, 198

Wintermute v. Wilson 84, 90

Wirehach v. Bank 7, 8, 16
Wisener v. Maupin 25, 77, 90

Wiser v. Lockwood 17

Wolf t). Ins. Co. 241
xxxl

232, 241

, 232, 241, 257

9, 95

3, 101

809

68, 257

811

166

61, 62

236

40, 61

16, 166

Co.

TABLE OF CASES-

Wood V. Wood

Yauger v. Skinner

Woodbury v. Obear
Worthy v. Woi'thy
Wray v. Wray
Wright V. Hardy
V. Howe

259
18
18

259

78, 82

Yglesias v Dyke
Yoe V. McCord
Young V. Barner

V. Ridenbaugh
V. Stevens

24,
63,

V. Tatham

257

Zimmerman v. Zimmerman

Yates V. Boen

Zwanziger's case

783

XXXll

MEDICAL JURISPRUDENCE.

BOOK I.

MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

CHAPTER I.

CONTRACTS.

I. Lunacy.

Lunatics in any view liable for neces-
saries, § 1.

Also liable for contracts during lucid
intervals, § 2.

Monomania does not incapacitate on
other topics, § 3.

By early authorities lunacy no ground
for avoidance, § 4.

Svibsequent tendency to hold all con-
tracts with lunatics void, § 5.

Question conditioned by fraud, § 6.

Inquisition only prima facie proof to
third parties, § 6 a.

Better opinion that contracts by luna-
tics are voidable at option, § 7.

Contracts executed in good faith will
be sustained, § 8.

Conflict as to whether deeds are void-
able, § 9.

In rescission parties to be placed in
statu quo, § 10.

Partnership contracts not dissolved, ip-
so facto, by lunacy, § 11.

Administrators may avoid contract of
insane decedent, § 12.

And so of representatives and guar-
dians, § 13.

And so of party himself, § 14.

Lunatic liable for torts, § 15.

II. Intoxication.
Intoxication alone, unless excessive, no

ground for avoiding contract, § 16.
Otherwise when acted on by fraud, §

16 rt.
Rule in equity, § 16 6.
Drunkard liable for necessaries, § 16 c.

III. Marriage Contracts.
Distinctive rule as to marriage, § 17.
Rule as to divorce, § 18.

I. LUNACY.

§ 1. Persons not only apparently but actually destitute of reason
are incapable of dealing contractually. Hence the in-
capacity of idiots, when complete, is absolute. Mere an°view^"
mental imbecility, however, is not sufficient to set aside I'^^ie for

necessaries.

a contract where there is not an essential privation of
the reasoning faculties or an incapacity to understand and act
VOL. I. — 1 1

§2.]

MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

■with discretion in the ordinary affairs of life. The law cannot
undertake to measure the validity of contracts by the greater or
less strength of the understanding; and if the party be compos
mentis, the mere weakness of his mental powers does not incapaci-
tate him.^ To sustain a contract made by him, there being no un-
due advantage taken, it is, in general, sufficient to show that the
party contracting knew what he was about. ^ If he is incapable
of such knowledge ; if, in other words, he is either an idiot or a
maniac, not capable of knowing what he is about — then he is inca-
pable of contracting. But in any view it may be regarded as
settled both at law and in equity that a lunatic's estate is liable for
necessaries furnished to him,^ and the lunatic himself, or his admin-
istrator, and not his guardian, must be sued on such debts.*

§ 2. Where the disease is of such a character that lucid intervals
exist, the power to contract returns with the return of reason, and

' Somers v. Pumphrey, 24 Ind. 231,
Elliott, C. .J. ; Mann v. Betterly, 21 Vt.
326 ; Farnum v. Brooks, 9 Pick. 212 ;
Baldwin v. Dunton, 40 111. 188 ; Tit-
comb r.Vantyle, 84 111. 371; Willemiu i-.
Dunn, 93 111. 511 ; Campbell v. Hooper,
3 Sm. & G. 153 ; Henderson v. McGregor,
30 Wis. 78. Tke jury may consider
how far the party was liable to be de-
ceived, though the incapacity was only
partial. Galpin v. Wilson, 40 Iowa, 90.
See also Shakespeare v. Markham, 72
N. Y. 400, and Cadwallader v. West, 48
Mo. 483. In this last case it was said
that wherever inadequacy of considera-
tion and mental weakness concur, the
contract should be annulled. And see
Owing's case, 1 Bland, 370, 390.

2 Lozear v. Shields, 23 N. J. Eq. 509 ;
Clearwater v. Kimler, 43 111. 272 ; My-
att V. Walker, 44 111. 485 ; Emery v.
Hoyt, 46 111. 258 ; Cadwallader v. West,
48 Mo. 483 ; Ball v. Mannin, 3 Bligh
(N. S.) I.

8 Baxter v. Earl of Portsmouth, 5 B.
& C. 170; 7 D. & R. 614 ; Neill v. Mor-
ley, 9 Ves. Jr. 478 ; Dane v. Kirkwall,
8 C. & P. 679 ; Sawyer v. Lufkin, 56

Me. 308 ; McCrillis r. Bartlett, 8 N. H-
569 ; Lincoln v. Buckmaster, 32 Vt.
652; Kendall r. May, 10 Allen, 59;
Skidmore i'. Romaine, 2 Bradf. (N. Y.)
122 ; La Rue v. Gilkyson, 4 Penn. St.
375 ; Bank v. Moore, 78 Penn. St. 407 ;
Matthieson v. McMahon, 38 N. J. L. 537 ;
Van Horn v. Haun, 39 N. J. L. 207;
McCormick v. Littler, 85 111. 62 ; Pearl
V. McDowell, 3 J. J. Marsh. 658 ; Cole-
man y. Frazer, 3 Bush, 300 ; Richard-
son V. Strong, 13 Ired. L. 106 ; North-
ington ex parte, 37 Ala. 496. In Read
V. Legard, 6 Ex. 636, it was decided
that the maintenance and support of a
wife is a necessary ; where, however,
the husband gives his wife a suitable
allowance, he is not liable for her debts
contracted with a party who knew of
his lunacy. Richardson v. Dubois, L.
R. 5 Q. B. 51. The expenses of a com-
■ mission are a necessary protection for
the party and his estate, even though
he is found sane thereby. Nelson v.
Duncombe, 9 Beav. 211 ; Williams v.
Wentworth, 5 Beav. 325.

* See Van Horn v. Hann, 39 N. J. L.
207.

CONTRACTS. [§ 3.

a contract made in a lucid interval is valid. ^ Since, however, as
will presently be seen more fully, insanity of a permanent
type is continuous, the party alleging a lucid interval will for con-
be required to prove its actual existence.^ On the ing- lucid '
other hand, where the disease is in its nature periodic i°*'^'"^'^^^-
or temporary, the presumption of incapacity does not apply.^
By a lucid interval, moreover, " is not meant a perfect restora-
tion to reason, but a restoration so far as to be able, beyond doubt,
to comprehend and to do the act with such perception, memory,
and judgment as to make it a legal act."^ It is sufficient, to estab-
blish such lucid intervals, to prove that the party had sufficiently
recovered his reason to know what he was about. A discharge
from a lunatic asylum is oulj prima facie evidence of restoration to
sanity.'

§ 3. Nor do delusions or hallucinations avoid capacity if not
touching the subiect matter of a contract.^ While every ,,

o 0 ... Monomania

man is presumed to be sane, chronic insanity, when once does not in-

. . , • T -r. 1 ■ capacitate

proved to exist, is presumed to continue.^ Jout there is on other
no such presumption of law as to the .continuance of a °^^^^'
temporary hallucination or delusion arising from disease ; the party
seeking to avoid a contract by reason of a hallucination must
show its existence at the time of making the contract, and that the
hallucination was of a character aifecting his capacity. To the
effect that there is no presumption of permanence in the case of in-
termittent delusions caused by disease, there are numerous authori-

> Story on Contracts, § 74; Hall v. Bush, 283; Aurentz v. Anderson, 3

Warren, 9 Ves. Jr. 605 ; Tozer v. Sat- Pitts. 310.|

urlee, 3 Grant (Pa.), 162 ; Frazer v. * Frazer v. Frazer, ubi supra.

Frazer, 2 Del. Ch. 260 ; McCormick v. ^ Haynes v. Swann, 6 Heisk. (Tenn.)

Littler, 85 111. 62 ; Jones v. Perkins, 5 560.

B. Mon. 222 ; Blakeley v. Blakeley, 33 e Infra, § 34 ; Staples v. Wellington,

N. J. Eq. 502. 58 Me. 453 ; Dennet v. Dennet, 14 N. H.

2 Staples V. Wellington, 58 Me. 454; 531 ; Somes v. Skinner, 16 Mass. 348;
Frazer v. Frazer, 2 Del. Ch. 260; Osterhout z;. Shoemaker, 3 Hill (N. Y.)
Aurentz v. Anderson, 3 Pitts, 310 ; 573 ; Banks v. Goodfellow, L. R. 5 Q.
Kush V. Megee, 36 Md. 69 ; State v. B. 256 ; so in Lozear v. Shields, 23 N. J.
Reddick, 7 Kan. 143 ; Atty. Gen. v. Ex. 509, where there was religious
Parnther, 3 Bro. C. C. 441. monomania ; Emery v. Hoyt, 46 111. 258 ;

3 Brown v. Riggin, 94 111. 560 ; so of Boyce v. Smith, 9 Gratt. 704 ; Lemon
epileptic fits, Carpenters;. Carpenter, 8 v. Jenkins, 48 Ga. 313.

7 Wh. on Ev. § 1252 ; supra, § 2.

§ 4.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

ties,^ and it is now well settled that delusions and hallucinations
must directly affect the act in question in order to incapacitate.^
Whether an existing delusion as to the subject matter of the con-
tract affects the capacity to contract is a question for the jury.^
But when the delusion or hallucination goes to the essence of the
contract, and sways the party when making the contract,. then he
must be regarded in this relation as without contracting power.*

§ 4. The early common law authorities inclined to the position
g ^j that, as no man could be allowed to stultify himself, so no

thorities man could set up his own insanity at the time of a con-
lunacy no 1 f ■ T • \ A ^ ..
ground for tract as the ground of avoidmg it.* At the same time it

avoidance. ^^^^ conceded that this right of avoidance belonged to

the alleged lunatic's heirs and administrators,^ The restriction,

therefore, was purely personal, and was based on a mistaken view

of insanity. Insanity was deemed to be perpetual. If it existed

at the time of the contract, it existed when suit was brought. If

it did not exist when suit was brought, it did not exist at the time

of the contract.

The progress of this idea is traced by Blackstone,^ so far as it

relates to the conveyances of lunatics. It seems to have rested

chiefly on the authority of Lord Coke, as Fitzherbert, Britton, and

Bracton were directly opposed to him.^ But it cannot be said ever

to have been law in America, and has been exploded in England,

though followed by Lord Tenterden in 1827.^

' Supra, § 2 ; Hix v. Whittemore, 4 7 2 Bl. Com. 291.

Mete. 545 ; Turner v. Rusk, 53 Md. 65 « Nat. Brev.202; Bracton, fol. 100a;

(1880) ; Achey v. Stephens, 8 Ind. 411. Britton, c. 28, fol. (56.

2 Cases supra; see infra, §§ 34 et seg. ^ Brown v. Joddrell, 3 C. & P. 30.

3 Jenkins v. Morris, L. R. 14 Ch. D. Mr. Pollock says that the doctrine was
674(1880). In this case P., tlie lessor exploded long before it was adopted
of certain property, was laboring under by Lord Tenterden. See Pollock on
the delusion that it was impregnated Contracts, p. 78. Stephen, however
with sulphur ; in other respects he was (1 Com., 7th ed. 475), considers the
a shrewd business man. The jury found maxim still to be one of law as regards
the lease valid. See infra, § 5. transactions merely voidable ; though

* Banks v. Goodfellow, L. R. 5 Q. it has, he says, no application to trans-
B. 549. And see infra, §§ 46, 48. actions absolutely void, such as con-

5 Co. Litt. 247 a. veyances other than feoffments.

6 Co. Litt. 241b. Beverley's case, 4
.Rep. 123 6.

CONTRACTS. [§ 5.

§ 5. The early doctrine, then, was that the contract of a lunatic
could only be avoided after his death by his heirs or rep-
resentatives ; but the cases of Thompson v. Leach^ and tendency to
Yates V. Boen^ overthrew this, and took the ground that, ^°^^ ^^\

' ° ' contracts

with the exception of feoifments, which from their solemn with luna-

tics void.

nature could be only voidable, the deeds and contracts
of persons incompetent not only from insanity, but from drunken-
ness,^ were void. And though it was held by Sir Joseph Jekyll
that intoxication does not destroy capacity to contract, unless it be
shown that the drunkenness was contrived by the other party,*
Lord Ellenborough inclined to the view that drunkenness by itself
is sufficient to avoid an agreement.^ In this country, several early
cases took the ground that the contracts of a lunatic, executed or
unexecuted, are per se void, unless for necessaries.® This is un-
questionably correct in cases where the absence of mental capacity
is so obvious as to make dealing with the lunatic a fraud. But
unless there is such a total deficiency in capacity, it is not reason-
able to hold that a contract entered into in good faith with a lunatic
is void. Lunacy may be for years latent, and, at all events, where
not amounting to idiocy or mania, it is a condition as to which
there can be no such fixed and obvious rule laid down as will give
-security to purchasers. If all contracts of persons mentally un-
sound are void, no matter what may be the degree of the unsound-
ness, no title to property of any kind would be secure. Some prior
vendor may have been insane; his conveyance was, therefore, void ;
and hence the title is incomplete. And even against a party
contracting immediately with the alleged lunatic, the contract, if
bona fide and fair on both sides, ought not to be set aside on the
ground of latent lunacy.'

1 3 Salk. 300 ; Comb. 468 ; 2 Ventr. ner, 16 Mass. 348 ; Grant v. Thompson,
198. 4 Conn. 208 ; Rice v. Peck, 15 Johns.

2 2 Str. 1104. 503 ; La Rue v. Gilkyson, 4 Penn. St.

3 Cole V. Robbins, Bull. N. P. 172. 375 ; Fitzgerald v. Reed, 9 Sm. & Marsh.
* Johnson v. Mellicott, 3 P. Wms. (Miss.) 94. And see the remarks of

130. Strong, J., in Dexter v. Hall, 15 Wall.

6 Pitt V. Smith, 3 Camp. 33. 20.

B Lang V. Whidden, 2 N. H. 435 ; ^ Searle v. Galbraith, 73 111. 269. In

Burke v. Allen, 29 N. H. 106 ; Mitchell Jenkins v. Morris, L. R. 14 Ch. D. 674,

V. Kingman, 5 Pick. 431 ; Seaver v. before alluded to, the lessor of a farm

Phelps, 11 Pick. 304 ; Somes v. Skin- believed that it was impregnated with

§7.]

MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

§ 6. A party dealing with notice with an insane person, except for
^ ^. necessaries, is charo-eable with fraud ; and where there

Question . .

conditioned is fraud independently shown, a comparatively slight

degree of mental debility will suffice to sustain a decree
setting aside a contract with the party imposed upon.^ Imbecility?
or partial hallucination, if there be fraud, will be a ground for
setting aside a contract, which would have been sustained without
fraud. ^

^ 6 a. As to strangers, an inquisition of lunacy is only prima
Inouisition f^^^^ proof of businoss incompetency, though it binds
parties.^

That it is admissible as prwia facie proof as to third
parties is generally held;* though on principle, its ad-
mission is open to the serious objection of being res inter alios acta.^
§ T. That w^hen a contract has been produced by fraud, acting
upon mental debility or eccentricity, it will be set aside in equity,
is settled.^ And it is further settled that the mere act of contract-
ing with a lunatic, except for necessaries, is fraudulent in all cases

oviXy prima
facie proof
to third
parties.

sulphur, and was at the pains to try
many experiments to rid himself of it.
A jury found him of sufficient business
capacity to make a valid lease thereof.
The Court of Appeals refused to dis-
turb the verdict.

' Gartside v. Isherwood, 1 Bro. C. C.
558 ; Dane v. Kirkwall, 8 C. & P. 679 ;
Den V. Bennett, 7 Sims, 539 ; Rhodes
V. Bate, L. R. 1 Ch. App. 252 ; Grant
V. Thompson, 4 Conn. 208 ; Seeley v.
Price, 14 Mich. 541 ; Henderson v. Mc-
Gregor, 30 Wis. 78 ; Rutherford v.
RufiF, 4 Dessaus. 350.

2 Beals V. See, 10 Penn. St. 56;
Jones V. Perkins, 5 B. Mon. 222 ; Kee-
ble V. Cummins, 5 Hayw. 43.

3 See Wh. on Ev. §§ 812, 1254. See
also Hirsch v. Trainer, 3 Abb. (N. Y.)
N. Gas. 274 ; Faulder v. Silk, 3 Camp.
126, per Lord EUenborough. See other
cases cited in Wh. on Ev. § 1254.

* Sargeson v. Sealey, 2 Atk. 412 ;
Stone V. Damon, 12 Mass. 488 ; Breed

V. Pratt, 18 Pick. 115 ; Crowninshield
V. Crowninshield, 2 Gray, 524 ; Hart
V. Deamer, 6 Wend. 497 ; Hicks v.
Marshall, 8 Hun, 327 ; Goodell v. Har-
rington, 3 Thomp. & C. 345 ; Hutch-
inson V. Sandt, 4 Rawle, 234 ; Bank v.
Moore, 78 Penn. St. 407 ; Kneedler's
App., 92 Penn. St. 428.

5 See, as sustaining admissibility of
such records. Dexter v. Hall, 15 Wal-
lace, 9 ; Caulkins v. Fry, 35 Conn. 170 ;
Burke v. Allen, 29 N. H. 106 ; L'Amo-
reux V, Crosby, 2 Paige, 422 ; Fitzhugh
V. Wilcox, 12 Barb. 235 ; Wadsworth
V. Sherman, 14 Barb. 169 ; Nichol v.
Thomas, 53 Ind. 53 ; Elston v. Jasper,
45 Tex. 409. In Lagay v. Marstou, 32
La. Ann. 170, the finding of a com-
mission that the person was notoriously
insane was treated as affording the pre-
sumption that a party who had pre-
viously contracted with her must have
been warned of her condition.

* Shakespeare v. Markham, 72 N. Y.

CONTRACTS.

[§7.

where the lunacy, to the knowledge of the other contract- Better opin-
ing party, extends to the subject matter of the contract.^ contracts
If we assume that in the case of lunatics there is an ^^ lunatics

are voida-

absence of consenting mind, the principle involved in We at op-
this question is analogous to that by which the deed of
an illiterate person, who has been deceived as to the contents
thereof, is held void.^ Agreeably to this principle the contracts
of a lunatic, made under the circumstances given above, have
been considered to be void in several recent American cases. ^ A
more satisfactory conclusion, however, is established by the English
cases of Molton v. Camroux^ and Matthews v. Baxter.^ In the latter
case Kelley, C. B., said : " It has been argued that a contract made
by a person who was in the position of the defendant, is absolutely
void. But it is difficult to understand this contention. For, surely,
the defendant, upon coming to his senses, might have said to the
plaintiff, ' true, I was drunk when I made this contract, but still I
mean, now that I am sober, to hold you to it.' And if the defendant
could say this, there must be a reciprocal right in the other party. "^

400 ; Garro-w v. Brown, 1 Wins. (N. C.)
No. 2, Eq. 49 ; Rutherford v. Ruff, 4
Dessaus. 350 ; Seely v. Price, 14 Mich.
541 ; Jacox r. Jacox, 40 Mich. 473 ;
Taylor v. Patrick, 1 Bibb, 168 ; Wil-
son V. Oldham, 12 B. Mon. 55; Bird-
song V. Birdsong, 2 Head. 289 ; Killian
V. Badgett, 27 Ark. 166 ; Henderson v.
McGregor, 30 Wis. 78. In Moore v.
Hershey, 90 Penn. St. 196, Paxon, J.,
held that the indorsement of a promis-
sory note by a lunatic could be in-
quired into, and fraud, knowledge of
the lunacy, or want of consideration
set up as a defence. See Wirebach v.
Bank, 10 W. N. C. (Pa.) 143 ; infra, § 8.
' Price V. Berrington, 7 Hare, 402 ;
Shadwell, V. C, Lincoln v. Buckmas-
ter, 32 Vt. 652 ; Henderson v. McGre-
gor, 30 Wis. 78 ; Lagay v. Marston,
32 La. Ann. 170. Story on Contracts,
§ 83. But see Curtis v. Brownell, 42
Mich. 165, 171, where it seems to be
hinted that this presumption of fraud

may be overcome by conduct of the
lunatic indicating a restoration to rea-
son. And the presumption may be
rebutted, and equity will not interfere
except on equitable principles. Where
the lunatic has had the benefit of the
contract, it will be upheld. Canfield v.
Fairbank, 63 Barb. 461 ; Jones v. Per-
kins, 5 B. Mon. 222.

2 See Pollock on Contracts, Am. ed.
402, 406, and cases cited.

3 See notes to § G ; Enckmg v. Sim-
mons, 28 Wis. 272 (1871). Hines v.
Potts, 56 Miss. 346 (1879), goes further
than the statement in the text. See
Bank v. McCoy, 69 Penn. St. 209 ; Hope
V. Everhart, 70 Penn. St. 231 (1871) ;
Marmon v. Marmon, 47 Iowa, 121. See
also Wilson v. Oldham, 12 B. Mon. 55 ;
and infra, § 15, for cases dealing with
intoxication on the same principle.

*■ 4 Exch. 17 ; 2 Exch. 486.
s L. R. 8 Exch. 132.
6 L. R. 8 Exch. 133.

§ 8.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

The same observations may be made as to persons temporarily,

though not obviously, insane. Sufficient protection to persons of

this class is afforded by holding their contracts voidable when it is

shown that their incapacity was known or practised upon, while the

transaction of business is assisted by the opportunity given in lucid

intervals, or upon recovery, for the ratification of contracts really

conducive to the interests of both parties. In this country there is

a growing tendency to adopt the English rule, both as more fair

and more philosophical.^

§ 8. We may therefore hold it to be settled by the weight of

p, authority, that a contract made with a lunatic in good faith

executed in and in ignorance of his incapacity cannot, after the pro-
good faith . . ^ ." ^ . .
will besus- perty has been obtained and enjoyed by the lunatic, be

^^^^ ' set aside or defeated by the latter or his representatives,

unless the parties can be put iJi statu quo. Or, to adopt the
words of Pollock, C. B. :^ " Where a person, apparently of sound
mind, and not known to be otherwise, enters into a contract for the
purchase of property, which is fair and bond fide, and which is exe-
cuted and completed, and the property, the subject matter of the
contract, has been paid for and fully enjoyed, and cannot be de-
stroyed, so as to put the parties in statu quo, such contract cannot
afterwards be set aside, either by the alleged lunatic, or those who
represent him."

This conclusion is sustained in America by numerous adjudica-
tions.^

' Murray v. Carlin, 67 111. 286 ; "n-hicli numerous cases are cited. It

Searle v. Galbraith, 73 111. 'ZHd ; Tit- is shown by abundant authority that

comb r. Vantyle, 84 111. 371; AlcCor- contracts by lunatics are open to ratifi-

mick V. Littler, 85 111. 62 ; Willemin r. cation.

Dunn, 93 III. 511. In other cases, ^ Molton v. Camroux, 2 Exch. 503.

while the ruliugs went off on collateral ^ Kendall v. May, 10 Allen, 59 ;

points, the reasoning of the judges Young u. Stevens, 48 N. H. 133 ; Fitz-

rested on the principles stated in the hugh v. Wilcox, 12 Barb. 235 ; Loomis

text. Matthieson v. McMahon, 38 N. v. Spencer, 2 Paige, 158 ; Riggs r. The

J. L. 537 ; Turner v. Rusk, 53 Md. 65 ; Society, 19 Hun, 481 ; Ins. Co. v. Hunt,

Freed v. Brown, 55 Ind. 310. But see 79 N. Y. 541 ; Beals v. See, 10 Penn.

Evans v. Horan, 52 Md. 610. St. 56; Kneedler's App., 92 Penn. St.

In Blakeley v. Blakeley, 33 N. J. 428 ; Yauger v. Skinner. 14 N. J. Eq.

Eq. 502, the question in the text is dis- 389 ; Matthieson v. McMahon, supra ;

cussed with much ability, and a learn- Lozear r. Shields, ubi supra; Wilder

ed note by the reporter is given, in v. Weakley, 34 Ind. 181 ; Behrens v.

CONTRACTS.

[§9.

§ 9. While, however, the prevalent opinion now is that an ordi-
nary business contract with a lunatic, when fair, and by
a party having no notice of his mental disability, will be to°wiiether

sustained, there is still much difference of opinion as to ^^^^^ ^^^

^ voidable.

whether title to real estate can be passed by a person at
the time a lunatic, no matter how completely his lunacy may have
been disguised. Some of the earlier authorities recognize the dis-
tinction taken in Thompson v. Leach^ between a deed of feoffment
and a deed of bargain and sale, holding the latter absolutely
void.^ The supreme court of the United States has accepted this
position. 3

In Massachusetts it has been held that while a deed of bargain

McKinsie, 23 Iowa, 333 ; Allen v. Ber-
ryhill, 27 Iowa, 450 ; Aslicraft v. De Ar-
mand, 44 Iowa, 229 ; Sims v. McClure,
8 Rich. Eq. 286 ; Rusk v. Fenton, 14
Bush, 490 ; Northington ex parte, 37Ala.
496 ; Beller v. Jones, 22 Ark, 92 ; Henry
V. Fine, 23 Ark. 417 ; Carr 7;. Holliday, 5
Ired. Eq. 167 ; Encking v. Simmons, 28
Wis. 272 ; Henderson v. McGregor, 30
Wis. 78. If the contract be executory it
will not be upheld. Story on Contracts,
5th ed. § 83 ; Skidmore v. Roniaine, 2
Bradf. (N.Y.) 122. But see Beavan v.
McDonnell, 9 Exch. 309, 10 Exch, 184.
In a late case (1881) in Pennsylvania,
Judge Trunkey, in holding the accom-
modation indorsement of a promissory
note by a lunatic void, laid down the
general principle that " there can be no
binding executory agreement where one
of the parties is bereft of reason." Wire-
bach V. Bank, 10 W. N. C. 145. For
other English cases following Molton v.
Camroux, see Price v. Berrington, 7
Hare, 394 ; Dane v. Kirkwall, 8 C. &
P. 679 ; Beavan v. McDonnell, 10 Exch.
184 ; Hassard v. Smith, 6 Ir. Eq. 429.
' Supra, § 5. By statute in Eng-
land the feoffments of a lunatic are
now void. See 1 Steph. Com. 7th ed.
475. See also Pollock on Contracts,
Am. ed. p. 80, 406.

2 It was thus held in Pennsylvania.
De Silver's Est., 5 Rawle, 111 ; Rogers
V. Walker, 6 Penn. St. 371. In this state
deeds of bargain and sale have, by stat-
ute, the same effect as livery of seisin ;
but the late cases agree with Gibson v.
Soper, 6 Gray, 279, in holding that the
lunatic may ratify his deed, and hence
that it is to that extent only voidable.
But " when there is no evidence of
ratification after restoration to reason,
it is impossible upon legal principles
that the estate passed to the grantee
in the deed." Semhle, that retention
of the consideration after a return to
sanity would be such evidence ; but if
the deed be avoided during the insanity
the consideration need not be returned.
Per Trunkey, J., Crawford v. Scovel, 8
W. N. C. 364 (1880).

3 Dexter v. Hall, 15 Wallace, 9. In
this case, Mr. Justice Strong, in dealing
with the power of attorney of a lunatic,
took the ground that by common law
his conveyances, other than by feoff-
ment, are absolutely void ; a fortiori
his power of attorney. Other cases
holding the deed of a lunatic absolutely
void do not seem to notice the distinc-
tion. Van Deusen v. Sweet, 51 N. Y.
378 ; Farley v. Parker, 6 Oreg. 105.

§11.]

MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

and sale is in this country equivalent to a feoflfment, and of an equal
solemnity, the deeds of lunatics, like the deeds of infants, though
voidable, may be ratified.^ To the extent of holding the deed of a
lunatic not under guardianship voidable only, this is sustained by
numerous other authorities,^ though the appointment of a guardian
may avoid subsequent deeds. ^

§ 10. The case of Gibson v. Soper* pushed the doctrine in Massa-
chusetts to the length that, on suit for avoidance brought,
sion parties restitution of the consideration by the lunatic is unneces-
to be placed g^ry as a condition precedent, unless the lunatic be re-

m statu quo, '' ■*■ ' _

stored to reason, and seeks inequitably to use his prior
lunacy as an engine of fraud. ^ But the better opinion is that the
parties must be placed in statu quo, unless there has been actual
fraud .^

§ 11. The findings of a commission of lunacy are not regarded as

dissolving a partnership contract ipso facto. To work
contract such a dissolution the decree of a court of equity must

soived^iBso ^® ^^^^ ' ^"^^ ^^^^ ^^^^ ^^^ ^® given where the insanity
facto by lu- Jg only temporary.'' The point does not seem ever to

nacy. »' i ./ i

have been decided whether a partnership contract entered
into by one already found a lunatic would be valid until set aside

' Allis V. Billings, 6 Mete. 415 ; Ar-
nold V. Richmond Iron Works, 1 Gray,
434; Gibson v. Soper, 6 Gray, 279;
Howe )'. Howe, 99 Mass. 88; Valpey ij.
Rea (S. C. Mass. 1881), 24 Albany L.
J. 137.

* Hovey i'. Hobson, 53 Me. 451 ; Eaton
V. Eaton, 37 N. J. L. 108 ; Key v. Davis,
1 Md. 82 ; Chew v. Bank, 14 Md. 299 ;
Evans w. Horan, 52 Md. 602 ; Rusk v.
Fenton, 14 Bush. 490 ; Ashcraft v. De
Armand, 44 Iowa, 229 ; Nichol v.
Thomas, 53 Ind. 42 ; Freed v. Brown,
55 Ind. 310 ; Elston v. Jasper, 45 Tex.
409 ; Scanlan v. Cobb, 85 111. 296. The
action may be brought by the lunatic
or by his guardian ; cases supra, and
see Crawford v. Scovel, supra. Contra,
Nichol V. Thomas, supra. The luna-
tic cannot file a bill in equity, till he

is restored to mind. Turner v. Rusk,
53 Md. 65, See infra, § 14,

3 Hovey w. Hobson, Nichol i?. Thomas,
Freed v. Brown, Elston v. Jasper, su-
pra; see Eaton v. Eaton, Rusk v. Fen-
ton, supra,

* 6 Gray, 279.

^ Per Thomas, J. See, to same effect,
Crawford v. Scovel, 8 W. N. C. (Pa.)
364 ; Hovey v. Hobson, Nichol v.
Thomas, supra. Cf. Lagay v. Marston,
32 La. Ann. 170.

5 Eaton V. Eaton, Evans v. Horan,
Scanlan v. Cobb, Ashcraft v. De Ar-
mand, Rusk V. Fenton, supra.

^ Lindley, 4th ed. 1, *226 ; CoUyer,
6th ed. Am. notes, 1, 152 n. See contra,
Story, § 295. That an inquest dissolves
a partnership, see Isler v. Baker, 6
Humph. 85.

CONTRACTS.

[§16.

by the lunatic or his representatives ; but where entered into bona
fide on the part of the other party it might be argued that the rights
of third parties require it to be held binding until dissolved.

§ 12. Where the contract of an alleged lunatic is Adminis-

•111- 1 -Till- 1 • • trators may

voidable, it may be avoided by his executors or admmis- avoid con-

, , V u • u • 1 tract of in-

trator, or by his heirs.^ ,ane dece-

§ 13. So the guardian, committee, curator, or assignee •^'^°*-

in lunacy, whatever may be his official title, may contest representa-

before the proper court his ward's prior dealings, and tives and

^ , ^ , ^ ^ . guardians.

may either disavow and rescind or ratify the lunatic's

contracts made during lunacy .^

§ 14. Notwithstanding the position taken in the older books that

no man can stultify himself by alleging his lunacy at a

.,.. "^ 11,, 1 ^ ■ • And SO Of a

.prior period, it is now settled, as has been already inci- party him-

dentally seen, that a person who has been insane, and

when insane makes a contract, can, on his restoration to sound mind,

contest the validity of the contract.^

§ 15. A lunatic is liable for his torts so far as to subject his

estate to a suit for damages worked to others by its neg-

. . JO Lunatic

ligent management. On principle, however, he cannot liable for
be held liable for malicious acts in cases where he is not
capax doU.*

11. INTOXICATION.

§ 16. A drunkard, voluntarius dcemon, is not entitled to the
same consideration as persons rendered incapable by the visitation

* Beverley's case, 4 Rep. 123 b. See
Gibson v. Soper, 6 Gray, 279.

2 2 Bl. Com. 292. McCrillis v. Bart-
lett, 8 N. H. 569 ; Gibson v. Soper, supra.
In Baker v. Baker, L. R. 5 P. D.. 145,
it was held that the committee of the
estate of a lunatic, as against the com-
mittee of the person, was the proper
party to bring a proceeding for divorce
on account of the adultery of the luna-
tic's wife.

^ Gibson v. Soper, ubi supra ; Craw-
ford V. Scovel, 8 W. N. C. (Pa.) 364 ;
Turner v. Rusk, 53 Md. 65 ; the same

principle applying as in the case of
infants. But where the party is un-
der guardianship, the action must be
brought by the guardian. Nichol v.
Thomas, 53 Ind. 42. It would seem
to be impossible that the action should
be allowed to be brought by the other
party. Allen v. Berryhill, 27 Iowa,
540.

* See the cases collected in Ewell's
Leading Cases, pp. 635, 638, 642, n. ;
Wh. Neg. §§ 87, 88, 306, 307. As to
responsibility for malicious acts, see
Wh. Cr. L., 8th ed. § 82 et seq.
11

§16.]

MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

of God. A lunatic is " incapable of committing a crime or making
Intoxica- ^ Contract, yet it is common to speak of his torts and his

tioQ, unless contracts, and on many of them he is liable in a civil ac-

excessive, .,,,..„,

no ground tion ; ^ it IS lor the protection of others who do not know

ing con- ' of his incapacity that his contracts Avhen fair are up-
tract. held, and his misdeeds, when injurious, are compensated

for. But drunkenness, so far from being a defence to the merits
in actions for torts, may be an aggravation,^ and in actions ex con-
tractu, the validity of the transaction depends upon its fairness.
A party taking advantage of another's incapacity from drunkenness
will not be allowed the aid of the law to enforce an unfair bargain
thus obtained. But in cases where one of the parties to a contract
was, at the time it was made, intoxicated, to an extent not depriving
him of business capacity, he cannot, after having received the benefit
of the contract, supposing it to be fair and reasonable, be allowed
to rescind it ; and in any view executory contracts by persons
excited by drink should be considered only voidable, open to rati-
fication when the party is sober. ^

1 Trunkey, J., in Wirebach. v. Bank,
10 W. N. C. (Pa.) on p. 144. See also
the remarks of Drake, J., in Burroughs
V. Richman, 13 N. J. L. 233.

2 Wh. on Neg. § 306.

8 In Gore v. Gibson, 13 M. & W. 623,
a case which has been cited with ap-
probation in many American decisions,
it was held that the contract of a man
too drunk to know what he was about,
is absolutely void, confirming Lord El-
lenborough's ruling in Pitt v. Smith,
3 Camp. 33. But the later case of
Matthews v. Baxter, L. R. 8 Ex. 132,
has modified this, and decides, in ac-
cordance with the principles stated in
the text, that such a contract, even
though executory, is voidable only. In
this country the earlier authorities fall
in the line of Pitt v. Smith, and hold
the contracts of drunkards void. Caul-
kins V. Fry, 35 Conn. 170 ; Jenriers v.
Howard, 6 Blackf. 240 ; Drummond v.
Hopper, 4 Harring. 327 ; Wade v. Col-
vert, 2 Mill's Const. N. S. 27 ; Fitz-

gerald v. Reed, 17 Miss. 94; Newell v.
Fisher, 19 Miss. 431. As to statutory
rule in New Hampshire, see McCrillis
V. Bartlett, 8 N. H. 569. As to Ver-
mont, see Barret v. Buxton, 2 Aiken,
167; Foote v. Tewksbury, 2 Vt. 97.
And so if fraud is practised (but whe-
ther the contract would stand if not
procured by fraud, not decided). King
V. Bryant, 2 Hayw. 591. That a prom-
issory note given by one when drunk
is void against the payee, see Bank v.
McCoy, 69 Penn. St. 204, where the
evidence was that the maker of the
note was at the time "wholly uncon-
scious of what he was doing." It was
held, however, that in the hands of a
bona fide indorser for value, the note is
good. In Connecticut it was intimated
in 1868, on the authority of 1 Parsons
on Bills and Notes, 171, that if the in-
capacity was complete, it would be as
valid a defence against the indorsee as
the payee ; Caulkins v. Fry, 35 Conn.
170. A better rule is furnished by the

CONTRACTS.

[§16«.

§ 16 a. The inference of fraud is strong when one contracting
party knows of the other's disability, and when the bar-

^ *' f. . 1 1 * Otherwise

gain is on its face unfair and unequal. Attempts at when acted
fraudulent dealing are, under such circumstances, indica- °° ^
tions from which the jury may judge as to the probability of the
party's being deceived. Where advantage has been taken, the con-
tracts will always be avoided, and upon slight evidence, especially
when the drunkenness has been contrived by the other party.^
But they cannot be deemed absolutely void, as they may be ratified.

case of Miller v. Finley, 26 Mich. 249
(at p. 254), where a note made by a
man when drunk was held good in the
hands of the indorsee, but only void-
able as against the payee. In unison
with this case are some old, and most of
the late cases, which hold the contracts
of a drunkard only voidable. Walker
V. Davis, 1 Gray, 506, at p. 508 ; — in
Foss V. Hildreth, 10 Allen, 76, at p.
79, the word void is used, it is true,
but taken in connection with the facts,
it will be seen to refer only to the par-
ticular case ; — Burrouglis v. Richman,
13 N. J. L. 233 ; Reinicker v. Smith, 2
Harr. & John. 421, 423; Johns v.
Fritchey, 39 Md. 258 ; Wigglesworth v.
Steers, 1 Hen. & Munf. 70; Mansfield
V. Watson, 2 Iowa, 111 ; Reynolds v.
Dechaums, 24 Tex. 174; Cumings v.
Henry, 10 Ind. 109 ; Joest v. Williams,
42 Ind. 565 ; Broadwater v. Darne, 10
Mo. 277 ; Eaton v. Perry, 29 Mo. 96 ;
Darby v. Cabanne, 1 Mo. App. 126 ;
Cavender v. Waddingham, 5 Mo. App.
457 ; Bates v. Bates, 72 111. 108 ; Wil-
liams V. Inabnet, 1 Bailey, 343 ; Phe-
lan V. Gardiner, 43 Cal. 306. In Joest
V, Williams, iit supra, a contract of sale
had been executed, and was on its face
reasonable, but the intoxicated party
was allowed to refund the considera-
tion and rescind the contract. The
cases agree that the mere fact of intoxi-

cation is not prima facie proof of incom-
petency ; it must be a degree of drunk-
enness producing entire incapacity.
See, among other cases, Johns v.
Fritchey, Cavender v. Waddingham,
Bates V. Bates, ut supra, and Pickett v.
Sutter, 5 Cal. 412. It is for the jury to
determine whether the party's intoxi-
cation was such as to render him either
incapable of contracting or to expose
him an easy victim to fraud.

' That a promise unfairly obtained
from a drunken promiser will not be
enforced, see Pitt v. Smith, 3 Camp.
33; Cory v. Cory, 1 Ves. Sen. 19;
Say V. Barwick, 1 Ves. & B. 196 ; Gore
V. Gibson, 3 M. & W. 623 ; Cooke v.
Clayworth, 8 Ves. 12; Bliss v. R. R.,
24 Vt. 424 ; Mitchell v. Kingmans, 5
Pick. 431 ; Rice v. Peck, 15 Johns. 503 ;
Wager v. Reid, 3 T. & C. (N, Y.) 332 ;
Hutchinson v. Tindall, 3 N. J. Eq. 357 ;
Campbell v. Spencer, 2 Binn. 133 ; Wil-
son V. Bigger, 7 Watts & S. Ill ; Du-
laney v. Green, 4 Barring. (Del.) 285 ;
Johns V. Fritchey, 39 Md. 258 ; Men-
kins V. Lightner, 18 111. 282; Scanlan
V. Cobb, 85 111. 296 ; Mansfield v. Wat-
son, 2 Iowa, 111 ; Jones v. Perkins, 5
B. Mon, 222; Richardson v. Strong,
13 Ired. L. 106 ; Morrison v. McLeod,
2 Dev. & B. 226. See also other cases
in the preceding and succeeding para-
graphs.

§17.]

MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

Rule in
equity.

§ 16 h. Courts of equity Avill relieve against contracts entered into
in a state of intoxication: (1) where the intoxication pro-
duced mental incapacity; and (2) where it produced men-
tal excitement, subjecting the party to the undue influ-
ence of the other contracting party, who thereby gains an unfair
advantage.^

§ 16 c?. A drunkard, like a lunatic, will be held liable for neces-
saries requisite for his support,^ though in such cases the
liable for suit should be for goods sold and delivered, and not on

necessaries. i. j. i. j i

account stated.^

III. MARRIAGE CONTRACTS.

§ 17. A person incapable of solemnizing other contracts is inca-
pable of solemnizing the contract of matrimony.^ The
Distinctive ^ . i i i • , n t i

rule as to marriage oi an absolute lunatic, therefore, may be sub-
sequently annulled.* On the other hand, such a mar-

marriage.

1 Wigglesworth i'. Steers, 1 Hen. &
Munf. 70 ; Birdsong v. Birdsong, 2 Head,
289 ; Belcher r. Belclier, 10 Yerg. 121 ;
Frenclir. French, 8 Ohio, 214; Mansfield
V. Watson, 2 Iowa, 111, at p. 115. But
that equity will only relieve where
fraud has been practised, and not other-
wise, see Hutchinson v. Brown, IClarke,
408 ; Prentice v. Achorn, 2 Paige, 30 ;
Wager v. Reid, 3 T. & C. (N. Y.) 332 ;
Seymour v. Delancy, 3 Cowen, 445 ;
Pittenger v. Pittenger, 3 N. J. Eq. 156;
Hutchinson v. Tindall, 3 N. J. Eq. 357 ;
Jones V. Perkins, 5 B. Mon. 222 ; Scan-
Ian V. Cobb, 85 111. 296, at p. 298 ;
White V. Cox, 4 Hayw. (Tenn.) 213;
Campbell v. Ketcham, I Bibb, 406 ;
Rutherford v. Ruff, 4 Cessans. 350 ;
Johnson v. Medlicott, 3 P. Wms. 130 ;
Shaw V. Thackray, 3 Sm. & G. 537.

2 Cooke V. Clayworth, 18 Ves. Jr. 15 ;
Gore u. Gibson, 13 M. & W. 623 ; Saw-
yer V. Lufkin, 56 Me, 309 ; McCrillis v.
Bartlett, 8 N. H. 569 ; Kendall v. May,
10 Allen, 59 ; Seymour v. Delancy, 3
Cowen, 445 ; Van Horn v. Hann, 39 N.
J. L. 207 ; Jenners v. Howard, 6 Blackf.
240 ; Darby v. Cabanne, 1 Mo. App. 126 ;

so in equity, Jones v, Perkins, 5 B. Mon.
222. As necessaries may be consid-
ered expense of suits undertaken for
the protection of the drunkard or of his
estate. Meares in re, L. R. 10 Ch. D.
552 ; Hallet v. Oakes, I Cush. 296.

3 Atkinson v. Medford, 46 Me. 510 ;
Banker v. Banker, 63 N. Y. 409 ; Cole
V. Cole, 5 Sneed (Tenn.), 57 ; Ward v.
Dulaney, 23 Miss. 410 ; Browning v.
Reane, 2 Phill. 169 ; but it is said in
Hancock v. Peaty, L. R. 1 P. & D. 335,
that "the question for the court is,
whether the mind of the contracting
party is diseased or not at the time of
the contract, and if the evidence estab-
lishes that the mind was, at the time
of entering the contract, diseased, the
court will not enter into the extent of
the derangement." Per Lord Penzance

< Bishop, Mar. & Div. 6th ed. § 135
Turner v. Meyers, 1 Hagg. Con. 414
Middleborough v. Rochester, 12 Mass
363 ; Wightman v. Wightman, 4 Johns
Ch. 343 ; Ward v. Dulaney, 23 Miss
410 ; Crump v. Morgan, 3 Ired. Eq. 91
Foster v. Means, 1 Speers' Eq. 569 ;
Rawdon v. Rawdou, 28 Ala. 565. So

CONTRACTS.

[§17.

riage may be ratified by the party when restored to capacity.'
Although, to justify a decree of nullity, there must be an undoubted
unsoundness at the time of marriage,^ yet in marriage, as in other
contracts, fraud or coercion, when brought to bear on a person of
weak mind, will work an avoidance which, without such fraud or
compulsion, would not have been decreed.^

intoxication, Clement v. Mattison, 3
Rich. 93. In New York, under the Re-
vised Statutes, a marriage by a lunatic
is only voidable. Stuckey v, Mathes,
24 Hun, 461.

' Cohabitation is strong evidence of
such ratification. See Bishop, Mar. &
•Div. ut supra. Cole v. Cole, 5 Sneed,
57. In Rawdon v. Rawdon, supra, it
was held that the right to a decree of
nullity would be barred by the lapse
of time — in this case twenty-two years
had elapsed. And in Wiser v. Lock-
wood, 42 Vt. 720, it was held that the
marriage could not be impeached after
the death of the lunatic. In Hancock
V. Peaty, L. R. 1 P. & D. 335, it was al-
leged that the lunatic had recovered ;
in which case Lord Penzance said he
would annul the marriage at her re-
quest only. Contra, that there can be
no confirmation. Crump v. Morgan, 3
Ired. Eq. 91; Ward v. Dulaney, 23
Miss. 410.

2 Banker v. Banker, 63 N. Y. 409.

^ The leading case on this point is
that of Lord Portsmouth, 1 Hagg.
Ecc. 355. See also Browning v. Reane,
2 Phill. 69. Lord Portsmouth's case
was, shortly stated, as follows : Lord
Portsmouth was married for the second
time in March, 1813, to a young woman
who was the daughter of one of his
trustees, the solicitor of the family,
under whose charge he was at the time
living. From earliest childhood he had
displayed great weakness, both moral
and mental, being cruel, timid, and
fickle in his management of his house-

hold, and exceedingly capricious in his
tastes. Upon his arrival at twenty-
one, however, his incapacity was such
as to induce his family to take steps to
put him under the charge of a commit-
tee, and at their instance he joined
with his father in suffering common
recoveries, and making a new settle-
ment of the estate. It was not dis-
puted that he mixed in society gener-
ally, corresponded with his friends,
and settled his own accounts with his
steward. His first marriage was in
1799, and took place imder a family
arrangement, with a lady several years
older than himself, who it was under-
stood took a general supervision of his
affairs. In the settlement made at that
marriage, the father of his second wife
was one of the trustees. The first wife
died in November, 1813, and in Febru-
ary, 1814, Lord Portsmouth went down
to London with his medical attendant,
and being left in his trustee's hands, a
week afterwards contracted a second
marriage to the trustee's daughter. In
1823, not until after the birth of a
child, which took place in 1822, a com-
mission was issued to inquire into his
lunacy, the result of which, after a
long contest, was a finding that he was
of unsound mind, and had been so
since January, 1809. The committee
appointed under this procedure imme-
diately filed a petition in the ecclesias-
tical court to annul the second mar-
riage. Sir John Nicholl, in deciding
the case, said: "That considerable
weakness of mind, circumvented by

§ 18.]

MENTAL UNSOUXDXESS IX ITS LEGAL RELATIONS.

Rule as to
divorce.

§ 18. It has been argued that, as an insane person can-
not consent to adultery, a decree of divorce on ground

proportionate fraud, ■will vitiate tlie
fact of marriage, whether the fraud is
practised on his ward by a party ■who
stands in the relation of a guardian, as
in the case of Harford against Jlorris (2
Hag. Cons. R. 423), ■n-hich ■was decided
principally on the ground of fraud ; or
■whether it is effected by a trustee, pro-
curing the solemnization of the mar-
riage of his own daughter with a per-
son of very weak mind, over whom he
has acquired great ascendency. A per-
son incapable from weakness of detect-
ing the fraud, and of resisting the as-
cendency practised in obtaining his
consent to the contract, can hardly be
considered as binding himself in point
of law by such an act. At all events,
the circumstances preceding and at-
tending the marriage itself may mate-
rially tend to show that the contracting
party was of unsound mind, and was
so considered and treated by the par-
ties engaged in fraudulently effecting
the marriage. In respect to Lord Ports-
mouth's unsoundness of mind, the case
set up is of a mixed nature, not abso-
lute idiocy, but weakness of under-
standing ; not continued insanity, but
delusions and irrationality on particu-
lar subjects. Absolute idiocy, or con-
stant insanity, would have carried with
them their own security ; for in either
case, the forms preceding, and the
ceremony itself, could not have been
gone through without exposure and
detection ; but here a mixture of both,
by no means uncommon, is set up —
considerable natural ■weakness, grow-
ing at length, from being left to itself
and tincontrolled, into practices so ir-
rational and unnatural as in some in-
stances to be bordering on idiocy, and
in others to be attended with actual
delusion — a perversion of mind — a de-

ranged imagination — a fancy and belief
of the existence of things which no ra-
tional being, no person possessed of his
powers of reason and judgment, could
possibly believe to exist. ... It
appeared that February, 1814, Lord
Portsmouth was brought to London by
his medical attendant, and delivered
up to his trustees, Hanson being one,
and then in town — that day week he
was married to the daughter of Mr.
Hanson. The coniidential solicitor of
the family, one of the trustees, who
had a great ascendency over him, who
owed him every possible protection,
married him to one of his daughters I
It is unnecessary to state the jealousy
with which the law looks at all trans-
actions between parties standing in
these relations to each other. The
whole transaction will bear but one
interpretation : every part of it is the
act of the Hansons ! Lord Portsmouth
is a mere instrument in their hands,
to go through with the necessary forms ;
the settlement is begun in forty-eight
hours after Lord Portsmouth's arrival
in London ! The contents of that set-
tlement ; the mode in which it was
prepared ; the concealment of the whole
from the friends and the other trustees
who were in town, some in the same
house with Lord Portsmouth : all these
particulars bear the same character.
The necessary forms are gone through
with, but in support of these mere
forms, not a witness is produced to
show that this nobleman was conduct-
ing himself as a man understanding
what he was doing, or capable of judg-
ing, or acting as a free and intelligent
agent ; nothing tending to show he was
a person of sound mind ; nothing in his
conduct inconsistent with unsoundness
of mind : every circumstance conspires

CONTRACTS.

[§ 18.

of adultery cannot be granted against an insane person.^ To this
it may be replied that divorce statutes are meant to relieve parties
from intolerable wrong, and the wrong of adultery is none the less
intolerable because the party committing it was insane. ^ This view
was intimated in England in the Mordaunt case, although that case
was decided upon the peculiar construction of a statute. ^ The in-
sanity of either party is now held no bar to a divorce in England ;*
but in this country it has been held that a divorce will not be de-
creed in favor of an insane plaintiff.^

to prove that he was the mere puppet
of the Hanson family, and that the
celebration of this marriage was brought
about by a conspiracy among them to
circumvent Lord Portsmouth, over
whom they, and particularly the father,
had a complete ascendency, so as to
destroy all free agency and rational
consent on his part to this marriage.
A marriage so had wants the essential
ingredient to make the contract valid
— the consent of a free and rational
agent. The marriage itself, and the
circumstances immediately connected
with it, do not tend to establish restored
sanity ; it was neither ' a rational act'
nor was it ' rationally done' — the whole
' sounds to folly' and negatives sanity
of mind. The Hansons, in the mode
of planning and conducting the trans-
action, show that they treated and con-
sidered Lord Portsmouth as a person of
unsound mind, and Lord Portsmouth,
in submitting and acquiescing, and not
resisting, confirms his own incompe-
tency. Even if no actual unsoundness
of mind, strictly so called — if no insane
derangement — existed, if only weak-
ness of mind (and all admit that he
VOL. I. — 2

was weak), yet, considering the pas-
siveness and timidity of his character
on the one hand, the influence and re-
lation of Hanson, his trustee, on the
other, and the clandestinity and other
marks of fraud which accompanied the
whole transaction, I am by no means
prepared to say, that, without actual
derangement in the strict sense, the
marriage would not be invalid ; but in
my judgment Lord Portsmouth was of
unsound mind, as well as circumvented
by fraud."

' Nichols V. Nichols, 31 Vt. 328 ;
Wray v. Wray, 19 Ala. 522 ; Rathbun
V. Rathban, 40 How. Pr. 328. But the
suit may be brought against them while
insane for adultery committed when
sane. lb.

2 Matchin v. Matchin, 6 Penn. St.
332.

3 Stat. 20 & 21 Vict. c. 85, § 27. See
the cases, Mordaunt v. Mordaunt, L.
R. 2 P. 109, 382.

4 Baker v. Baker, L. R. 5 P. D. 145,
affirmed 6 P. D. 12 ; Mordaunt v. Mon-
crieffe, 2 H. L. 375.

5 Worthy u. Worthy, 36 Ga. 45 ; Brad-
ford V. Abend, 89 111. 78.

MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

CHAPTER II.

WILLS.

I. Capacity.

Disposing mind is a mind capable of
independent comprehension,. § 19.

Idiots unable to make a will, § 20.

If intelligence be sbown, bypotliesis of
idiocy falls, § 21.

Different theories as to necessary quali-
fications, § 22.

Theory that a low grade of intelligence
is siifficient, Stewart v. Lispenard, §
23.

Theories calling for business capacity,'
§24.

Theory that disposing memory is ne-
cessary, § 25.

English rulings that such qualifications
involve a higher degree of capacity,
§26.

Party must have capacity to resist
fraud or force, § 27.

Mere mental weakness does not inca-
pacitate, § 28.

Nor does eccentricity, § 29.

Conflict as to the burden of proof, § 30.

Non-experts as .well as experts may
give opinion, § 31.

Experts may be asked as to hypothetical
case, § 32.

Speculative opinions of experts entitled
to little weight, § 33.

II. Delusions.
Delusions to be proved by insanity, not

insanity by delusions, § 34.
Will void when the result of insane de-
lusion, § 35.
But single delusion not general insan-
ity, § 36.

Nor does "moral insanity" incapaci-
tate, § 37.

Eccentricities are not delusions, § 38.

Unless the result of insanity, § 40.

Rule in England formerly that delusion
must affect factum of will to incapaci-
tate, § 41.

This view only partially approved by
Lord Lyndhurst, § 42.

And dissented from by Lord Brougham,
Waring v. Waring, § 43.

His views pushed to the extreme, § 44.

Followed by Lord Penzance, Smith v.
Tehhitt, § 45.

But repudiated by Queen's Bench,
Eanks v. Goodfellow, § 46.

Conflict in these decisions ; Lord Brough-
am's theory, § 47.

Contra, Lord Cockburn's compartment
theory, § 48.

Objection to this view, § 49.

Theories reconciled by supposition of
mental twilight, § 50.

The mind is indivisible, § 51.

Yet delusions need not destroy capacity
in toto, § 52.

This proved by instances of delusion
affecting strong-minded persons, § 53.

Important modifications of conduct have
been caused by visions, § 57.

And even morbid derangement need not
incapacitate, § 58.

Spiritualistic delusions do not incapaci-
tate unless subjecting testator to un-
due influence or affecting particular
provisions, ^ 59.

Better opinion that delusions do not per
se destroy capacity, § 60.

WILLS.

[§19.

III. Lucid Intervals.

Where habitual insanity is shown, lucid
intervals must be proved, § 61.

Restoration of disposing mind must be
shown, § 62.

Rational character of act affords pre-
sumption of sanity, § 63.

So as to idiocy, § 64.

IV. I^'T0XICATI0N.

To destroy business capacity must be
complete, § 65.

So as to wills, § 66.

Except in cases of undue influence,
§67.

When party is intentionally made
drunk, will is void, § 68.

Habitual drunkard not necessarily in-
capacitated, § 69.

Mere stimulation does not incapacitate,
§ 70.

Habitual drunkenness may produce in-
sanity and imbecility, § 71.

Illustrative cases, Pierce v. Pierce, § 72.

Handley v. Stacey, § 73.

Peck V. Carey, § 74.

Use of medicines may produce incapa-
city, § 75.

V. Undue Influence and Fraud.

Fraud acting on weakness invalidates
contracts and deeds, § 76.

Still more so wills, § 77.

Undue influence must amount to con-
straint, § 78.

Question is one of capacity to resist, §
79.

Mental weakness does not prove undue
influence, § 80.

VI. Presumptions.
1. From act and surroundings.

Contents of will may indicate incapacity,
§ 81.

Inference from abuse of confidential re-
lationship, § 82.

Inference from contents not conclusive,
§83.

Unjust will not necessarily invalid, §
84.

Disposing mind free to decide, § 85.

Eccentric clauses do not invalidate per
se, § 86.

2. From old age.

Old age does not per se incapacitate, §
87.

Should rather be protected, § 88.

So of partial loss of faculties, § 89.

And bodily infirmities, § 90.

Mental weakness must be shown to in-
capacitate, § 91.

So in England, § 92.

Excessive failure of memory invalidates,
§93.

And senile dread of relatives, § 94.

3. From physical defects.

Competency exists in cases of deaf-
mutes, but not knowledge of contents
of instrument, § 95.

Question depends on education, § 96.

Deaf-mutes may marry when compos
mentis, § 97.

Question one for jury, § 98.

I. CAPACITY.

§ 19. A DISPOSING mind, the existence of which is essential to
testamentary capacity, is a mind intelligent enough to pigpogino.
have a general idea of the property to be disposed of mind is a

, „ f , . , f ,,,.., . , , mind capa-

and of the objects among which the distribution ought bie of inde-

to be made. When we come, however, to concrete emuprehen-

cases, two important and often conflicting conditions are ®^°°-

§ 20.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

to be considered. On the one side the comfort of the weak, the
dependent, and the aged, depends largely upon their testamentary
capacity being maintained. If they cannot leave property to per-
sons kind to them, they may be often left to suffer from want of
kindness. On the other side, if a person of feeble intellect is so
far exposed to the coercion or fraud of others as to validate testa-
mentary provisions made by him under the pressure of such coercion
or fraud, then not only may his life be made miserable, but he may
become instrumental in perpetrating great wrongs. Hence it is
that to constitute a disposing mind there must be, as will hereafter
be more fully seen, capacity as well to resist undue influence as to
take a general view of the estate to be bestowed and the objects
among whom it is to be distributed.^

§ 20. An idiot, it is agreed on all sides, has no testamentary

capacity ;^ though as to what constitutes idiocy there is
able to ' as much doubt in testamentary as in contractual issues,
make a u Idiocy," according to Dr. Ray, "is that condition of

mind in which the reflective, and all or a part of the
affective powers, are either entirely wanting, or are manifested to
the slightest possible extent."^ And to work testamentary inca-
pacity, under any circumstances, the privation of reason must be
complete. Yet even here the question varies with the facts of each
case.

1 Mr. Bigelow argues (1 Jarm. Wills, ^ Jarman on Wills, 5tli Am. ed. *34,

5tli Am. ed., note to *38), that the vol. i. ; ed. by Randolph & Talcott, i.

term " a disposing mind," is ambigu- p. 63 ; 1 Redf. on Wills, §§ vii., viii.

ous and misleading. For, he says, it ^ Medical Jurisprudence of Insanity,'

is •' applied to issues of insanity in the 1871, § 58 ; and the following remarks

sense of perverted (diseased) intellect, are worthy of attention : He tells us

where the real question is, not whether that " there is even more diversity in

the decedent had capacity to make a the charactei-s of the idiotic and imbe-

will, but whether he did (normally) cile than in those of the sound ; and

will," whereas, "it is applicable pro- this truth must not be forgotten if we

perly only to issues of decay or of want would avoid the flagrant error of regu-

of mind ; the true question in such lating judicial decisions by rules,

cases being whether the supposed tes- which, though perfectly correct in re-

tator had sufficient mental ability at gard to one case or set of cases, may be

the time to exercise will." See also wholly incorrect in regard to others."
Randolph & Talcott's note to Jarman, p.
100.

WILLS.

[§21.

§ 21. Though we may fail to discover a definition of idiocy tho-
roughly comprehensive, Ave are justified in saying that j„ . ,,.
■where there is even a low degree of intelligence, idiocy gence be

, , . , , • , mi , ; • • 1 • shown, hy-

cannot be said to exist. I he test is comparatively sim- pothesis of
pie. If the pretended idiot can be shown to have intel- ^ ^°'^^ ''^^^^'
ligently performed acts of business during the period in which
idiocy be claimed to have existed, the allegation of incompetency
on this ground falls, unless fraud or constraint be shown.^

1 Bannatyne v. Bannatyne, 2 Rob.
475 ; 16 Jur. 864 ; 14 Eug. L. & Eq. R.
581. In this case Dr. Lushington said :
" Before entering upon this branch of
the case, I must bear in mind what the
nature of the case set up in opposition
to the will is. I must repeat that it is
not lunacy — it is not monomania — it is
not any species of mental disorder, the
symptoms of which it may, at periods,
be difficult to detect ; but the case pre-
sented is that of idiocy or imbecility,
the characteristic of which is perman-
ence, with little or no variation, though
often, in case of idiots, it does some-
times happen that there will be a
greater degree of excitement demon-
strated than at other periods. How is
such a case to be met ? I apprehend,
to meet it and to show that such a state
of things did not exist at any given
period, proof of acts of business are
most important evidence. Many acts
of business could possibly be done by
a lunatic, and the lunacy not detected ;
but it is scarcely possible to predicate
the same of an idiot or lunatic, or an im-
becile person. I shall look, therefore,
in the first instance, to the acts of busi-
ness. It is proved by Mr. Falkner,
that the deceased kept an account with
Messrs. Tuckwell, at Bath, for four
years, from 1818 to 1821, and during
all that period, occasionally drew
drafts, and all those drafts were paid
to himself over the counter. Accord-
ing to the evidence, the deceased came

himself to the counter, and there is no
proof of any one accompanying him on
such occasions ; he asked for the sum
he wanted ; the clerk filled it in, he
signed it, and took the money. Surely
no idiot could have done this, for he
must have exercised thought to go to
the bank, memory and judgment as to
the thing required ; and moreover, his
conduct and demeanor could not at such
times have been as described by the
witnesses against the will, or, from the
glaring colors in which his imbecility
is depicted, it must have been dis-
covered, and the business never could
have been transacted at all. ... I
consider these transactions, then, of
first-rate importance towards solving
all the difficulties of this case ; for
here, after the lapse of about thirty
years, the court has the advantage of
facts proved, with the dates duly
affixed to them. There is, I must say,
not the least evidence to show that in
any one of these acts of business the
deceased was assisted by any person
whatever, the presumption is the other
way ; and to put these acts upon the
very lowest basis on which they can be
placed, they do utterly disprove idiocy
or imbecility. I will simply repeat
what I have already indeed said, that
those who are afflicted with lunacy,
sometimes have tlie management of and
can manage their pecuniary aflairs—
an idiot, never."

§23.]

MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

§ 22. The cases considering the question, What constitutes un-
p.g. .p , soundness of mind in its legal sense ? may be grouped in
theories as three classes. In the first Ave have those which proceed

to necessary . . , , _ , .

quaiiflca- upon the notion that no man is incapable or making

t'o^s- a will unless he is absolutely insane ; in the second

those which proceed upon the test of ordinary business sagacity
and capacity ; while in the third are to be considered such as re-
quire of each testator certain specified qualifications for making a
will, the absence of any one of which incapacitates.

§ 23. The most prominent case of the first class is the case of
Stewart v. Lispenard,^ already referred to. In this case
Theory that the lowest test of Capacity was applied. It was there held
of inteiii- that a woman who had always lived under the care of her
fufficient. friends, had never attempted to transact business, who,
Stewart v. ^^ ^he age of forty, had not mastered the Lord's Prayer,

Lispenara. o »' ? j ^

and whose intellect and understanding were of a very
low degree, was competent to execute a will. The court — the
senate of the state of New York — reversing the chancellor, ruled
that it is not the province of courts to measure the extent of the
understanding of the testator, in passing on a will ; if he be not
totally deprived of reason, whether he be wise or unwise, he is the
lawful disposer of his property. Followed for a time in several
cases in New York,^ this view has been adopted in Georgia ;^ in
that state it is now settled that a disposing mind exists unless there
is a total privation of reason.^ But it is no longer the rule in
New York.5

1 26 Wend. 255. See an excellent
summary of this case, in 1 Beck's Med.
Jur. 850.

2 Blanchard v. Nestle, 3 Denio, 37 ;
Clarke v. Sawyer, 2 Comst. 498 ; Burger
V. Hill, 1 Bradf. 360.

3 Potts V. House, 6 Ga. 324.

* Gardner v. Lamback, 47 Ga. 133.
With the exception of an old Pennsyl-
vania case (Dornick v. Reichenback,
10 S. & R. 84) these seem to be all the
cases embodying this theory.

5 Delafield v. Parish, 25 N. Y. 9. See,
however, Crolius v. Stark, 7 Lans. 911,
64 Barb. 112, where it is said that there

must be an entire loss of intellect to in-
capacitate, and that the testator must be
unable to understand wliat he is doing
or the contents of the paper when read
to him. (Ingraham, P. J. 1873.) But
subsequent cases follow Delafield v.
Parish. An able review of this case
appears as an editorial in the Am.
Journ. of Insanity for Oct. 1862 (vol.
19). From this review we extract the
following : —

" The alleged loss of understanding
on the part of Mr. Parish was, as usual,
dependent upon physical disease. He
had threatening of cerebral disturb-

WILLS.

[§24.

§ 24. The next class of cases occupy an intermediate position.
They avoid any strict definition, holding that, from the nature of

ance for several years before liis at-
tack of apoplexy and paralysis in 1849,
and had hereditary tendency to disor-
ders of that nature. The shock of this
final attack rendered him insensible
and convulsed for several hours.

"It was soon discovered that his right
side was paralyzed. His physician
characterized the seizure as 'hemi-
plegia,' leading to ' defect of motion,
not of sensation,' and implicating
' the right arm and the right leg, and
also the organs of speech.' He sub-
sequently acquired a slight control
over the right leg, but the arm, which
improved somewhat for the first six
months immediately succeeding the at-
tack, afterwards entirely lost its power.
The left ai"m and leg were not perma-
nently aifected by paralysis.

"It is stated that Mr. Parish recov-
ered, in a considerable degree, his
strength after the first shock, and that
during the remaining seven years of
his life he enjoyed good, but not unin-
terrupted, health. He suffered from a
severe and painful disease of the bow-
els in October, 1849 ; subsequently, he
had a number of attacks, ' distinct
from the general disease, but the most
frequent dependent upon its cause, or,
in other words, dependent upon the
condition of the brain which led to the
disease.'

" ' He had one or more severe attacks
of cholera morbus, one or more of in-
flammation of the lungs, an abscess
formed at one time under the jaw,
which became so large as to threaten
suff'ocation, and there were several
minor attacks from time to time.'

" In addition to these disorders, ever
after his apojjlectic attack, Mr. Parish
was subject, at regular intervals, to
spasms or convulsions, the intervals

extending from one or two weeks to
six months, or even a year. Their
approach was preceded by despondency
and irritability on the part of the para-
lytic, and after the convulsion had
passed off, he was generally better and
brighter than he had seemed before.
The convulsions are described as com-
monly coming on suddenly with a noise
in the throat, resembling a shriek or
scream, a violent reddening of the face,
and a convulsion of the whole body —
the muscles becoming alternately rigid
and relaxed. Some of these paroxysms
were so violent as seriously to threaten
a fatal result. It was the opinion of
Mr. Parish's attendant physician that
these convulsions were ' connected
with the condition of the brain left by
the apoplectic attack.' The main fea-
ture of Mr. Parish's final illness was
congestion of the lungs, but it was a
complicated disease depending also, in
the opinion of his physicians, upon the
condition of the brain.

"His power of speech was mainly
abrogated on his first attack, and from
that time to his death he was never
able to utter anything except a few
imperfectly articulated monosyllables.
These wei-e princij)ally ' yes' and
'no,' which he pronounced very im-
perfectly, and there is even great
doubt whether he ever uttered them
intelligibly.

" He expressed himself most frequent-
ly by the use of inarticulate sounds.
These are described by the witnesses
as sounds resembling the syllables,
'3'ah, yah, yah,' 'nyeh,' ' nin, nin,'
'yeah, yeah, yeah,' and others of a
similar character.

" He accompanied these sounds by
gestures and motions of the left hand
and ai-m, and by nodding or shaking

§24.]

MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

Theories
calling for
business
capacity.

the case, the law in this respect presents " no formula
by which judges are bound. "^ The possession of ordi-
nary business capacity,^ the ability to contract,^ or

Ills head. The gestures usually con-
sisted in his waving his hand in dif-
ferent directions with his fingers ex-
tended, putting his fingers in his
mouth, or raising his hand and shak-
ing it. The external senses, feeling,
hearing, and smelling, do not appear
to have been seriously affected. His
eyesight was always more or less im-
perfect.

. "He would occasionally look at books
and papers, but the preponderating
evidence was that he could not read at
all. An attempt was made to induce
him to write with his left hand, but
after several trials with paper, slate,
and blackboard, which, in one or two
instances, resulted in his writing after
a copy the first few letters of his name
in very doubtful characters, the at-
tempt was abandoned.

' ' Block-letters were procured, but he
would not use them, and pushed them
away. A dictionary was suggested,
but whether the trial was ever made
or not, he never adopted that method
of communicating his ideas. It was
the constant practice of Mr. Parish's
nurses, in accordance with his wife's
directions, to read the newspaper to
him, but the proponents failed to prove
that he manifested comprehension of
what was thus communicated, or ex-

hibited any intelligent interest in the
reading.

" Subsequent to the attack he was
never intrusted with the management
of his own affairs, nor allowed to have
money in his possession. He could not
supply his own wants, and was washed,
dressed, and attended at table like a
child, and was even frequently unable
to control his evacuations.

" His wishes, as might be expected,
were not easily ascertained. He ex.
pressed, by the inarticulate sounds
and motions before referred to, that he
desired something, and various sug-
gestions would be made by those at-
tending him until he expressed assent,
though it often happened that it was
utterly impossible to comprehend him,
and the attempt would be abandoned
by both parties. He would also assent
to contradictory suggestions.

" Before his attack Mr. Parish is de-
scribed by his relatives and acquaint-
ances as a ' placid and unexcitable
man,' of great self-respect and with
great command of temper ; ' his man-
ners were mild, gentle, and unruffled ;'
a quiet, undemonstrative gentleman,
rarely exhibiting any emotion, and
deeply absorbed in his commercial
transactions.

"After his attack he manifested a

' Eeade, J., in Lawrence v. Steel, 66
N. C. 584.

2 So in Illinois, Lilly v. Waggoner,
27 111. 395 ; Trish v. Newell, 62 111. 196 ;
Yoe V. McCord, 74 111. 33 ; Meeker r.
Meeker, 75 111. 260 ; Rutherford v. Mor-
ris, 77 111. 397 ; Carpenter v. Calvert,
83 111. 62 ; Brown v. Riggin, 94 HI. 560 ;
Rambler v. Tryon, 7 S. & R. (Pa.) 90.

Capacity is established by capability to
transact business with sagacity and
decision. Barnes v. Barnes, Q6 Me.
286 ; Gleespin in re, 26 N. J. Eq. 523 ;
Fraser v. Jennison, 42 Mich. 206 ; Black
V. Ellis, 3 Hill (S. C.) 68 ; Tomkius v.
Tomkins, 1 Bailey, 92.

3 Coleman v. Robertson, 17 Ala. 84 ;
Tobin V. Jenkins, 29 Ark. 151.

•WILLS.

[§24.

make a deed/ are the general tests which they propose, leaving the
actual status of the decedent's mind to be arrived at by the jury by
every-day standards and the light of ordinary reason.

marked change of disposition ; he oc-
casionally shed tears ; and, in several
instances, exhibited a want of appre-
ciation of the requirements of decorum
and even of decency. He had occa-
sional unmeaning freaks and caprices,
such as searching for his clothes in
impossible places, going out to see the
moon, and making excursions to the
garret and the cellar, for no ascer-
tained purpose ; and it sometimes be-
came necessary to use physical force to
prevent him from undertakings which
threatened his personal safety.

"He exhibited some recollection of
his former daily and familiar places of
resort, and of his former habits of busi-
ness, which he would attempt, in tri-
fling matters, to resume, as, by pulling
out his watch when he passed the
City Hall clock, or insisting, when
driven out, upon being taken to the
bank of which he was once a director,
or to his old office, or to various trades-
men with whom he had been in the
habit of dealing. In addition to these,
the proponents, who contended that
Mr. Parish's intellect was never mate-
rially impaired, brought forward many
particular instances in which it was
claimed that he manifested undimin-
ished intelligence. One or two of these
may be mentioned.

" It was said by one witness : ' Hav-
ing been riding out of the city, he
would take his watch oiit of his pocket,
look at it, turn round and look at me,
when I would ask him if he wished to
return, if it was late or about his usual
drive; he would say 'yes,' and nod
his head.' Elsewhere, the same wit-

ness says : ' I recollect, on one occa-
sion, the dining-room clock was run
down ; when he pointed at the clock, I
perceived^ that it had stopped ; re-
marked to him that it had stopped,
and I would wind it up, when he nod-
ded his head.' An old acquaintance
testified that he recalled to Mr. Parish
a ridiculous circumstance that had
happened to them in company, many
years before, and that Mr. Parish
' gave him to understand' that he rec-
ollected the circumstance, and laughed
at it quite heartily. These instances,
however, of which the above are speci-
mens, were isolated, and taken together
were not deemed of sufficient signifi-
cance to avoid the conclusion derived
from the facts before stated.

' ' In regard to the actual execution of
the codicils, it seemed that the counsel
employed to prepare them, read them
to Mr. Parish in the presence of the
subscribing witnesses, put to him the
requisite formal questions, and re-
ceived from him by sound and gesture,
as usual, what were supposed to be
affirmative replies. The counsel then
assisted Mr. Parish by guiding his
hand while he made his mark. At
least this was the case at the execu-
tion of the first and second codicils ;
there was no evidence whether or not
he received assistance in making his
mark at the execution of the third.

" Such were the main points of the
case presented to the court of appeals.
The opinion of the court was delivered
by Judge Davies, from which we quote
the comments upon tlie facts which we
have narrated, and the conclusions in

1 Tyson v. Tyson, 37 Md. 567.

§ 25.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

§ 25. But the preponderance of authority is to the effect that
the law requires not so much any particular character of intellect,

wliicli tlie majority of the Court con-
curred.

' 'After adverting to the change in Mr.
Parish's disposition after his attack,
Judge Davies says : ' How diametri-
cally opposite to the previous conduct
of his whole life is that now exhibited !
And the inquiry forces itself upon the
mind, what cause has produced such
results ? Can such totally inconsistent
and opposite characters be reconciled
with the theory that the faculties, the
mind, and moral perceptions of Mr.
Parish underwent no change, but were
the same after July 19, 1849, as they
were before that day ? . . . . We
confess ourselves totally unable to as-
sent to any such theory. The convic-
tion on our mind is clear that these
facts and circumstances show uner-
ringly that the attack of July 19th ob-
literated the mental powers, the moral
perceptions, the reiined and gentle sus-
ceptibilities, of Henry Parish ; that after
that period he ceased to be the mild,
intelligent, and unruffled man he had
been theretofore, and that thereafter
he was not responsible for the unbe-
coming and ungentlemanly conduct
he so frequently exhibited. He then
ceased to be Henry Parish, and was no
longer an accountable being.' Upon
the point of Mr. Parish's method of
communicating his ideas. Judge Davies
says : ' With these imperfect media
for ascertaining the thoughts of Mr.
Parish, it is doing no injustice to any
one to assume that they have been
mistaken when they supposed that
they correctly understood him. We
more naturally and readily come to
this result, because we find that all
who had any intercourse with Mr.
Parish, on many occasions, found great

difficulty in understanding his wishes
and thoughts, if they even under-
stood them at all ; and the instances
are frequent and clearly established
where he often made an affirmative and
negative motion of his head, imme-
diately succeeding each other, to the
same question, leaving the inquirer in
perplexity which he really intended.

' ' ' All the testimony shows that he
could only indicate with his fingers
and hand, or by sounds, that he wanted
something, or that something was the
matter, and which motions or sounds
were construed by those around him
as evidences of his wish to put a ques-
tion, whereupon they began to suggest
various topics, and when they thoiight
they perceived that they had hit upon
the subject in his mind they supposed
he wished to inquire about, they put
such questions as suggested themselves
to them, and to which they supposed
they had received affirmative or nega-
tive answers. If Mr. Parish had no
power to express a wish to destroy a
will, it follows he had none to create
one, and the manifestation of his
wishes depended entirely upon the inter-
preter and the integrity of the interpreta-
tion.

" ' It is thus seen that great difficulty
and uncertainty, to say the least of it,
attended any expression of the thoughts
or wishes of Mr. Parish, and that a
large number of those having business
or intercourse with him, utterly failed
to attach or obtain any meaning to his
signs, sounds, motions, or gestures.
The natural and obvious deductions to
be made from all these facts and cir-
cumstances are, that Mr. Parish had
no ideas to communicate, or, if he had

WILLS.

[§25.

as the ability to make certain eflforts of mind and me- Theory that
mory. These are stated variously ; but the cases come memoryfs
to the same general result, namely, that the party ^^ecessaiy.

any, that the means of doing so, with
certainty and beyond all cavil and
doubt, were denied to him.'

"After referring to the testator's fail-
ure to communicate by writing, or by
the use of any artificial means. Judge
Davies states the final conclusions, as
follows : —

" ' To what result does this review of
the facts and circumstances in this
case, adverted to and commented on,
lead the mind ? On a careful con-
sideration of them all, with a most
anxious desire to arrive at a just and
correct conclusion, we are clearly of
the opinion that the attack of Mr.
Parish on the 19th of July, 1849, ex-
tinguished his intellectual powers, so
obliterated and blotted out his mental
faculties, that after that period he was
not a man of sound mind and memory
within the meaning and language of
the statute, and was, therefore, incom-
petent to make a will

" ' It is not the duty of the court to
strain after probate, and especially to
seek to establish a posterior will, made
in conceded enfeebled health, unsus-
ta,ined by previous declaration of in-
tention, over a prior will, made in
health, and with care and deliberation,
when the provisions of the posterior
will are in direct hostility to and con-
flict with those of the prior one.

" ' It would be in violation of long
and well-established principles, and an
almost uniform and unbroken current
of decision in England and in this
country, to admit to probate testamen-
tary papers, prepared and executed
under the circumstances these were, by
a man who was in apparent full phy-

sical health, and possessing nearly his
natural strength, who could not or
would not write, who could not or
would not speak, who could not or
would not use the letters of the alpha-
bet or even a dictionary, for the pur-
pose of conveying his wishes, upon
proof solely that they were supposed to
express the testator's wishes, from
signs, gestures, and motions made by
him, and especially when it appeared
that such signs, gestures, and motions
were often contradictory, uncertain,
frequently misunderstood, and often
not comprehended at all.'

"Judge Davies states at length the
three principles of law which he con-
ceived to be applicable to the case.

' ' The first regards testamentary ca-
pacity, the second the burden of proof,
the third the maxim, qui se scripsit
hceredem. The chief interest and im-
portance attaching to the decision,
turn upon the discussion of the first of
these — the doctrine of testamentary
capacity.

" Up to the present time, the well-
known case of Stewart v. Lispenard,
decided in the court of errors in 1841
(26 Wend. 255), has been held to be
of binding authority. The rule of tes-
tamentary capacity there adopted was
extremely rigorous, and the proposi-
tion was sustained that in passing upon
the validity of a will, courts do not
measure the understanding of the tes-
tator, but, if he have any at all, and
be not an absolute idiot, totally de-
prived of reason, he is the lawful dis-
poser of his own property, and his will
stands as a reason for his actions.
This doctrine is repudiated, or at least
modified, in the Parish Will decision,

§25.]

MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

must be able to remember what property he has, to consider who
have claims upon it, and to know what disposition he is making
of it. Delusions affecting any one of these subjects will destroy
capacity.^ And this, as has already been said, is the best test.

and the Lispeuard case expressly over-
ruled. In the language of the opinion,
derived from various high authorities,
the testator must have " sufficient
capacity to comprehend perfectly the
condition of his property, his relations
to the persons who were, or should, or
might have been the objects of his
bounty, and the scope and bearing of
the provisions of his will.

" ' He must have sufficient active mem-
ory to collect in his mind, vjithout
prompting, the particulars or elements
of the business to be transacted, and
to hold them in his mind a sufficient length
of time to perceive at least their obvi-
ous relations to each other, and to be
able to form some rational judgment in
relation to them.'

"This is receding from an extreme
and perhaps a dangerous position,
hitherto occupied by the court of last
resort ; and the establishment of a
more rational doctrine. To hold, as a
settled rule of law, that testamentary
capacity exists where there is even ' a
glimmering of reason,' is scarcely in
accordance with an enlightened system
of jurisprudence, or even with the dic-
tates of ordinary common sense."

1 Four cases may be considered lead-
ing on this subject : Converse v. Con-
verse, 21 Vt. 168 ; Harrison v. Rowan,
3 Wash. C. C. 580 ; Delafield v. Parish,
25 N. Y. 9 ; and Banks v. Goodfellow,
L. R. 5 Q. B. 549. In the first case.
Judge Redfield said that it was neces-
sary for the party to have something
more than mere passive memory re-
maining. "He must undoubtedly,"
said the judge, " retain sufficient active
tnemory to collect in his mind, without

prompting, particulars or elements of
the business to be transacted, and to
hold them in his mind a sufficient
length of time to perceive at least their
more obvious relations to each other,
and be able to form some rational judg-
ment in relation to them. The ele-
ments of such a judgment should be
the number of his children ; their de-
serts, with reference to conduct and
capacity, as well as need, and what he
had done before for them, relatively to
each other, and the amount and condi-
tion of his property, with some other
things, perhaps." Mr. Justice Wash-
ington charged the jury in Harrison v.
Rowan, a case approved by Lord Chief
Justice Cockburn, in Banks v. Goodfel-
low, that "the testator ought to be
capable of making his will with an un-
derstanding of the business in which he
is engaged ; a recollection of the proper-
ty he means to dispose of ; of the per-
sons who are the objects of his bounty,
and the manner in which it is to be
distributed between them." The lan-
guage of the court in Delafield v. Parish
has been already given ; and the opin-
ion of Cockburn, C. J., in Banks v.
Goodfellow is to the same efi'ect. And
these qualifications are the test whether
unsoundness of mind arises from
congenital defect or mental disease.
See Banks v. Goodfellow, ut supra, at p.
570. The English cases following this
case are, Smee v. Smee, L. R. 5 P. D.
84 ; 49 L. J. P. 8 ; Boughton v. Knight,
3 L. R. P. & D. 64. Greenwood v. Green-
wood, 3 Curt. Append. 30 ; Harwood v.
Baker, 3 Moore P. C. C. 282, are earlier
cases. In this country may be cited to
the same effect, Hathorn v. King, 8

WILLS.

[§26.

Memory to this extent the party must have. Although mere weak-
ness of mind does not generally incapacitate, yet a testator cannot
dispose of property, the possession of which he but barely appre-
ciates, among parties whose relations to himself he knows but does
not understand ; while, on the other hand, if he has this disposing
capacity, nothing can prevent him from making a will as eccentric, as
injudicious, or as unjust as caprice, frivolity, or revenge can dictate.
§ 26. In a late English case,^ Sir James Hannen, in charging
the jury, took especial care to guard against incapa- Eno-iish
city in relation to the natural objects of the testator's clings that

*' '' _ such quail-

bounty,^ The testator must have, he said, "a memory fications in-

Mass. 371 ; Comstock v. Hadlyme, 8
Conn. 265 ; Van Guysling v. Van Ku-
ren, 35 N. Y. 70 ; Horn v. Pullman, 72
N. Y. 269 ; Clarke v. Fisher, 1 Paige,
171 ; Brown v. Torrey, 24 Barb. 583 ;
Kinne v. Johnson, 60 Barb. 69 ; Rey-
nolds V. Root, 62 Barb. 250 ; Moore v.
Moore, 2 Bradf. 261 ; Farman v. Smith,
7 Lans. 443 ; La Bau v. Vanderbilt, 3
Redf. 384 ; and see Redfield's Reports,
passim, for cases following Delafield v.
Parish ; Boyd v. Eby, 8 Watts, 66 ;
Daniel v. Daniel, 39 Penn. St. 191 ;
Thompson v. Kyner, 65 Penn. St. 368 ;
Tawney v. Long, 76 Penn. St. 106;
Wood V. Wood, 4 Brewst. 75 ; Horbach
V. Denniston, 3 Pittsb. 49 ; Den v. .John-
son, 4 N. J. L. 454 ; Den v. Vancleve, 4
N. J. L. 589 ; Sloan v. Maxwell, 3 N. J.
Eq. 563 ; Andress v. Weller, 3 N. J. Eq.
604 ; Lyons v. Van Riper, 26 N. J. Eq.
337 ; Errickson v. Fields, 30 N. J. Eq.
634 ; Cordrey v. Cordrey, 1 Houst. 269 ;
Jamison v. Jamison, 3 Houst. 108 ;
Higgins V. Carlton, 28 Md. 115 ; McEl-
wee V. Ferguson, 43 Md. 479 ; Brown w.
Ward, 53 Md. 376 ; Home v. Home, 9
Ired. 99 ; Stancell v. Kenan, 33 Ga. 56 ;
Ragan v. Ragan, 33 Ga. Supp. 106 ;
Taylor v. Kelley, 31 Ala. 59 ; Leeper
V. Taylor, 47 Ala. 221 ; Kingsbury t'.
Whitaker, 32 La. Ann. 1055 ; Shrop-
shire V. Reno, 5 J. J. Marsh. 91 ; Har-
per's Will, 4 Bibb, 244 ; Garrison v.

Blanton, 48 Tex. 299 ; Wisener v. Mau-
pin, 58 Tenn. 342 ; Beaubien v. Cicotte,
12 Mich. 459 ; Bundy v. McKniglit, 48
Ind. 502 ; McClintock v. Curd, 32 Mo.
44 ; Harvey v. Sullens, 56 Mo. 372 ; Be-
noist V. Murrin, 58 Mo. 307 ; Young
V. Ridenbaugh, 67 Mo. 574; Holdeu
V. Meadows, 31 Wis. 284 ; Blakeley's
Will, 48 Wis. 294 ; Hubbard v. Hub-
bard, 7 Oreg. 42. Many of these cases
state the condition to be that "the tes-
tator must kiiow what he Was doing at
the time." It is evident that this does
not mean that the testator need only l)e
conscious that he is making a will ; it
is to be traced to the language of Judge
Washington in Harrison v. Rowan, ut
supra, and in Stevens v. Vancleve, 4
Wash. C. C. R. 262. In both of these
cases, after enumerating the necessary
qualifications, the judge summed them
up in the sentence, "Were the testa-
tor's mind and memory suificiently
sound to enable him to know and un-
derstand the business in which he was
engaged at the time when he executed
his will ?" Some cases hold that it is
necessary that the testator should know
what he is about and to whom he is giv-
ing his property. See Hornev. Home, 9
Ired. 99, and Missouri cases cited above.

1 Boughton V. Knight, L. R. 3 P. &
D. 64.

2 See infra. Delusions, §§ 34 et seq.

§ 26.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

voive a to recall the several persons who may be fitting objects
gree of ca- of his bounty, and an understanding to comprehend their
pacity. relationship to himself and their claim upon him." From

this necessity he argues that it requires a peculiar degree of sound-
ness of mind to make a will. Against this theory militate many
American cases which consider that less mind is required to make
a valid will than a valid contract ;^ but all these cases insist upon the
possession by the testator of the specific qualifications already noticed.
In Boughton v. Knight, Sir J. Hannen reviewed the various acts con-
cerning a man's capacity to do which there might be a question, and
came to this conclusion: "Whatever degree of mental soundness is
required for any one of these things — responsibility for crime, ca-
pacity to marry, capacity to contract, capacity to give evidence as a
witness — I must tell you . . . that the highest degree of all, if
degrees there be, is required in order to constitute capacity to make
a testamentary disposition . . . because it involves a larger
and wider survey of facts and things than any one of those matters
to which I have drawn your attention."^ In a later case^ he said, in
explanation of this language, " I never said that it requires a greater
degree of soundness of mind to make a will than to do any other
act. . . • What I have said ... is, that if you are at
liberty to draw distinctions between various degrees of soundness
of mind, then, whatever is the highest degree of soundness is re-
quired to make a will. That is very different. . . . From the
character of the act, it requires the consideration of a larger variety
of circumstances than is required in other acts, for it involves re-
flection upon the claims of the several persons who, by nature, or
through other circumstances, may be supposed to have claims on
the testator's bounty, and the power of considering these several
claims, and of determining in what proportions the property shall
be divided amongst the claimants."

Similar language to this was held by the court in an Illinois
case,* where the rule as stated in Converse v. Converse^ is objected

1 Converse r. Converse, 21 Vt, 168
Comstock V. Hadlyne, 8 Conn. 261
Thompson v. Kyner, 65 Penn. St. 368
Harrison v. Rowen, 3 Wash. C. C. 586
Stevens v. Vancleve, 4 Wash. C. C, 262. 5 Supra, § 25

2 Boughton V. Knight, ut supra, p. 72.
' Burdett v. Thompson, L. R. 3 P.
& D. 72 note.

* Trish V. Newell, 62 111. 196.

WILLS. [§ 27.

to.^ At the same time there is a general acquiescence in Judge Wash-
ington's conclusion that " it is not necessary that the testator should
view his will with the eye of a lawyer, and comprehend its provisions
in the legal form. It is sufficient if he has such mind and memory as
will enable him to understand the elements of which it is composed
— the disposition of his property in its simplest form."^ A man who
could make a will under certain circumstances might fail to grasp
the subject under others.^ Under any circumstances the question
is one of degree,* and we may therefore accept the opinion of the
Illinois supreme court, that the question in such cases is, "Were
the testator's mind and memory sufficiently sound to enable him to
know and understand the business in which he was engaged at the
time he executed the will? the competency of the mind being judged
by the nature of the act to be done, from a consideration of all the
circumstances of the case."^

§ 27. As is the case with contracts, issues in cases of the class
now before us are largely dependent upon the question p^rty must
of undue influence by others. If no such undue influence have capa-

• -n 1 city to re-

is exercised, a degree oi testamentary capacity will be sist fraud
regarded as adequate, when this degree of testamentary
capacity would be regarded as inadequate were it unduly acted
upon by the force or fraud of others. The question is, was the

' Trish V. Newell, ut supra, 204, per fectly sane mind of the testator dwelt

McAllister, J. upon them.

2 Judge Washington in Harrison v. * Lord Cranworth in Boyse v. Ross-
Eowan, ubi supra. borough, 6 H. L. C. at p. 45.

3 As is said by Judge Washington in ^ Trish v. Newell, 62 111. 205. And
Harrison?;. Rowan, "most men at dif- see Carpenter v. Calvert, 83 111. 62;
ferent periods of their lives have medi- Garrison v. Blanton, 48 Tex. 299. See
tated upon the subject of the disposi- Lawrence v. Steel, 66 N. C. 584.

tion of their property by will; and Theobald (Wills, 1881, p. 14) states

when called upon to have their in ten- the rule to be, that "a testator must,

tions committed to writing, they find at the time of making his will, have

much less difficulty in declaring their an understanding of the nature of the

intentions than they would in compre- business in which he is employed, a

bending business in some measure recollection of the property he means

new." But this can only be so when to dispose of, of the persons who have

the conditions of the disposition remain a claim to be the objects of his bounty,

practically the same as when the per- and the manner in which it is to be

distributed."

§ 28.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

document in question the testator's will ? If he had a disposing
mind, no matter how feeble, and this disposing mind was allowed
freedom in its play, then the will is to be sustained. But if he was
defrauded or coerced by those about him, then the will is to be set
aside, no matter how high may have been the standard of his capa-
city.^ Two important qualifications, hoAvever, are to be here kept
in mind : First, the lower the degree of intellect, the less the
amount of proof of fraud or of coercion required to set aside a will ;
an amount of fraud or of coercion which a strong mind would at
once repel, may be yielded to by a weak mind.^ Secondly, it is
not necessary that absolute freedom from influence should be
shown. There is no testator absolutely free from influence.^ The
test is, was there such influence applied as to take away his freedom
of disposition? If so, if his will was overcome by force, either phy-
sical or m.oral, or perverted by fraud, then a testamentary disposition
so made cannot stand.'*

§ 28. Weakness of mind and forgetfulness, therefore, are not
^ ^ sufiicient to invalidate a will if it appear that the testa-

tai weak- tor's mind was capable of attention and exertion when

ness does . k t i i

not incapa- roused, and was not imposed upon.* it has been truly
^^ ^ ^' said that " the weak have the same rights with the pru-

dent or strong-minded to dispose of their property."^ In general,
so that capacity exists, courts will not undertake to measure the
degree of that capacity, and they will protect those deficient in strong
natural ability in the exercise of the powers they possess.^

' See infra, §§ 77 et seq. Kinleside ^ Strong, J., in Newhouse v. Godwin,

V. Harrison, 2 PhilL 449 ; Gaither v. 17 Barb. 236.

Gaither, 20 Ga. 709 ; Collins v. Town- 7 Osmond w. Fitzroy, 3 P. Wms. 129;

ley, 21 N. J. Eq. 353. See also cases Andress v. Weller, 3 N. J. Eq. 604 ;

cited in the next section. Jamison v. Jamison, 3 Hoiist. (Del.)

2 Infra, §§ 77 et seq., 82 et seq., 87 108; Duffield v. Robeson, 2 Harr. 375 ;

et seq. ; Reynolds v. Root, 62 Barb. 250. Elliott's Will, 2 J. J. Marsh. 340 ; Tom-

* Infra, §§ 80 et seq. kins v. Tomkins, 1 Bailey, 92. See

* See generally infra, as above; 1 infra, § 87. In Hopple's Est., 7 W. N.
Jarman on Wills, Bigelow's ed., *35 ; C. (Penn.) 523, Judge Ashman (0. C.)
Randolph and Talcott's ed., note E to said that "want of memory, vacilla-
chap. iii. ; 1 Redf. Wills, *508, and tion of purpose, credulity, vagueness
succeeding pages. of thought may coexist with testa-

5 Tuffnell V. Constable, 3 Knapp P. mentary capacity." This seems to be
C. C. 122. somewhat broad in view of the fact

WILLS.

[§30.

§ 29. If eccentricities are to incapacitate a man from making a
will, few valid wills could be made, and often men of the

111- 1 1 f • -^°'' <io6s

strongest character would be incapable of will making, eccentri-
Sometimes the attendant of old age, sometimes the con- ^^ ^'
comitant of genius, often the consequence of hard treatment by
others, eccentricity cannot be regarded as working testamentary
incapacity without depriving of this capacity some of the most meri-
torious as well as most intelligent of mankind. It is otherwise,
however, as will presently be seen more fully, when eccentricity
takes the phase of monomania as to one of the objects of testa-
mentary disposition.^

§ 30. So far as concerns collateral contentions, the burden of
proof is on those assailing the validity of a will. All
persons not under judicial decree of insanity are pre- to'thrbur-
sumed to be sane until the contrary is proved.^ And *ienof

. proof.

this is in some jurisdictions held to be the case in an
issue of devisavit vel non.^ But the rale is taken to be otherwise
in some of our states and also in England, those propounding a will
being required to prove the capacity of the testator.*

that the supreme court of that state
has adopted the ruling of Converse v.
Converse and Harrison v. Rowan ; but
it serves to illustrate the unwillingness
of judges to refuse capacity to those
whose mental powers have become
dulled.

' Eccentricity differs from mono-
mania in this, that it is a conscious
aberration, and consists of peculiarities
which are indulged in in defiance of
popular sentiment ; whereas mono-
mania is unconscious. 1 Redf. on
Wills, *72. The cases exhibit many
interesting phases of eccentricity.
Hamilton v. Hamilton, 10 R. I. 538 ;
Reynolds v. Root, 62 Barb. 250 ; Brick
V. Brick, 66 N. Y. 144; La Bau v.
Vanderbilt, 3 Redf. 384 ; Trumbull v.
Gibbons, 22 N. J. L. 117 ; Errickson v.
Fields, 30 N. J. Eq. 634 ; Lewis's Case,
33 N. J. Eq. 219 ; Kise v. Heath, 33 N.
J. Eq. 239 ; Merrill v. Rush, 33 N. J. Eq.
VOL. I. — 3

537 ; Higgins v. Carlton, 28 Md. 115 ;
Brown v. Ward, 53 Md. 376 ; Gardner
V. Lamback, 47 Ga. 133 ; Kingsbury v.
Whitaker, 32 La. Ann. 1055 ; Carpen-
ter V. Calvert, 83 111. 62 ; Blakeley's
Will, 48 Wis. 294 ; Smith's Will, 8 N.
W. Rep. 602. See, also, Frere v. Pea-
cock, 1 Rob. 442 ; Morgan v. Boys, cited
1 Redf. on Wills, *82, from Taylor;
Austen v. Graham, 8 Moore P. C. C.
493. For a case where a will was
sustained though the eccentricities of
the testator were most extravagant,
see Lee v. Lee, 4 McCord, 183.

2 Whart. on Ev. § 1252 ; Theobald
on Wills, 14.

3 Swinburne, 44, pt. 2, § 3.

* As to the English rule, see Smee v.
Smee, etc., L. R. 5 P. D. 84 ; Bougliton
V. Knight, L. R. 3 P. & D. 64. A re-
view of the cases in this country will
be found in Randolph and Talcott's
edition of Jarman on Wills (5th Am.

§33.]

MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

Non-ex-
perts, as
well as ex
perts, may
give opin-
ions.

§ 31. As will hereafter be seen more fully, a non-ex-
pert (e. g. a lay attendant or nurse, or friend, or business
adviser) may be called upon to give his opinion as to
the testator's sanity in all cases in which the symptoms
are not occult, but are distinguishable by non-specialists.
A fortiori^ may experts in the treatment of the insane, give opin-
ions as to the sanity of particular persons, such opinions being
based on personal observations.^

§ 32. Experts, also, in these, as well as in all other
Experts issues in which sanity is involved, may be examined on

may be , . ,

asked as to hypothetical cases, ihey cannot, however, be asked

cai^case. ^" their opinions as to the evidence in any case involving

contested questions of fact.^

§ 33. As is shown in detail in another work,^ and as we shall

have hereafter occasion to see more fully when we pro-
Speculative , . .
opinions of cocd to discuss the authority of experts in their general

tmedtoiitl relations,^ the speculative opinions of experts employed
tiew6ight. ^^^ £ggjj -^^ particular cases are not entitled to great
weio'ht. This is peculiarly the case in testamentary questions in-
volvino' strong family feeling and large pecuniary interests. In
such cases each party is led to seek, among the large number of
specialists in mental diseases, specialists who would, from their pre-
conceived view, be likely to sustain his case ; and as there is no
theory of insanity that has not an expert exponent, no case of sup-

ed.), note D to chap.' iii., vol. i. p. 104.
The following cases may be added to
those in the note referred to : Davis v.
Davis, 123 Mass. 590 ; Howard?;. Moot,
64 N. Y. 447 ; Egbert v. Egbert, 78
Penu. St. 326 ; Grubbs v. McDonald, 91
Penn. St. 236 ; Taylor v. Creswell, 45
Md. 522 ; Brown ?;..Ward. 53 Md. 376 ;
Rush V. Megee, 36 Ind. 69, decide that
sanity in such cases is to be presumed.
Contra, that the burden is on the pro-
pounders, Robinson v. Adams, 62 Me.
369 ; Riddell v. Johnson, 26 Gratt.
152; Evans v. Arnold, 52 Ga. 169;
Wetter v. Habersham, 60 Ga. 193 ;
Benoist v. Murrin, 58 Mo. 307 ; Tate
V. Tate, 89 111. 42 ; Martin v. Perkins,
56 Miss. 204. But one under guar-

dianship is presumptively incapable
of making a will. Breed v. Pratt, 18
Pick. 115 ; Hamilton v. Hamilton, 10
R. 1. 538. And the burden of proof is
shifted where there has been an in-
quisition or general derangement has
been shown. Halley v. Webster, 21
Me. 461 ; Clark v. Fisher, 1 Paige,
171 ; Jackson v. King, 4 Cowen, 207 ;
Morrison v. Smith, 3 Bradf. 209 ; Har-
den-v. Hays, 9 Penn. St. 151 ; Higgins
V. Carlton, 28 Md. 115 ; Smith v. Smith,
4 Baxt. 293 ; Rush v. Megee, 36 Ind.
69.

1 Infra, § 257.

2 Infra, § 261.

s Wh. on Ev. §§ 434 et scq.
< Infra, § 275.

WILLS.

[§ 8J

posed insanity can be brought into court whicli some expert cannot
be found to support by his testimony under oath. We must also
take into consideration the bias arising from the relation of the
professional expert to his employer. The opinions of feed counsel
as to law would not be regarded as binding the court, no matter
how high-toned such counsel may be ; for the same reason the opin-
ions of even the most high-toned of experts, when employed and
feed by particular parties to litigated issues, should not be regarded
as binding the jury.^

■ See infra, §§ 293 et seq.

Mr. Shelford's views on this point
are worthy of grave consideration.
"One person," he says, "seeing a tes- •
tator in extreme age, or under extreme
sickness, thinks that if he knows tliose
about him, and can answer an ordinary
question with respect to the state of
his illness, or his wants, such and sim-
ilar matters render him capable of giv-
ing effect to a disposition by will, how-
ever complicated it may be, by the
mere formal execution of the instru-
ment ; while another person may be of
opinion that, though a testator, in the
ordinary management of his affairs,
can hold reasonable conversation, can
fully comprehend all the usual and
simple transactions of life, yet, if he is
unable to take the active management
of all his concerns, however involved
tliose concerns may be, or if he is lia-
ble to become confused by entering into
intricate transactions, he is totally in-
capable, and cannot enter into a testa-
mentary disposition, however plain
and simple it may be. Now, when
opinions are formed by such opposite
standards, it is obvious much contrari-
ety will occur. Sir John NichoU ob-
served that experience in the ecclesi-
astical court teaches us that evidence
upon questions of capacity is almost
always contradictory, such evidence
being commonly that of opinion mere-

ly ; and this contrariety proceeds from
the obvious grounds that, of the wit-
nesses, no two, possibly, have seen the
party whose estate is deposed to, at
precisely the same circumstances ; and
that each, again, of the several wit-
nesses, no matter how numerous, meas-
ures, possibly, testamentary capacity
by his own particular standard. These
sources of discrepancy, and many more
might be enumerated, are common to
all cases of this description. There is
an additional source, when the trans-
action of which they have to speak is
remote, a circumstance sufficient in it-
self to account for no inconsiderable
degree of contrariety of evidence, even
where the witnesses have to speak of
facts merely, and not of opinions formed
and inferences built upon facts, of
which most of the evidence furnished
upon questions of capacity is commonly
made up. If the cpurt, therefore, on
questions of capacity, is accustomed to
rely but little upon such evidence, so
far as it is that of mere opinion, but to
form its own j udgment from the facts
and the conduct of the parties at the
time, it becomes it to do so, more pecu-
liarly when much of the evidence not
merely consists of opinions delivered
long subsequently to the transactions
which they profess to have suggested
them, upon loose recollections, too, and
after repeated discussions of the sub-

§ 34.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

II. DELUSIONS.

§ 34. Delusions, as viewed psychologically, will be considered at
large in a subsequent chapter.^ In their legal relations,
t*^ibef^°°^ so far as concerns testamentary capacity, they were the
proved by subject of patient investigation by Sir J. P. Wilde (Lord
not vice' Penzance), in" the court of probate and divorce, in
vejsa. 1867.^ A delusion is "a belief of facts which no ra-

tional person would have believed;" so spoke Sir J. Nicholls ; " but
who," asks Sir J. P. Wilde, " is a ' rational' person ? and does not
the assumption ' rational' beg the question at issue ?" " The belief
of things as realities which exist only in the imagination of the
patient ;" so said Lord Brougham in Waring v. Waring ; but do
not sane people imagine unrealities ? "A pertinacious adherence
to some delusive idea, in opposition to plain evidence of its falsity,"
said Dr. Willis, as quoted by Sir J. Nicholls ; " but are not sane
people sometimes pertinacious in error ? and who is to determine
what evidence is 'plain?'" Hence it is that Sir J. P. Wilde,
arguing from the inadequacy of these definitions, concludes that
"delusions," as insane delusions, are to be proved by insanity, not
insanity by delusions.^

ject matter witli interested parties." 83 111. 62. It is ruled in Indiana that

Shelford on Lunacy, 277-8. See Van- it is wrong to direct the jury as to the

auken ex parte, 2 Stockt. (N. J.) 186. weight to he given to the testimony of

Judge Redfield, in commenting upon experts ; their credibility is to be tested

this subject, says that the testimony by the rules applying to other classes

should come " (1) From persons of of witnesses. Eggers v. Eggers, 57

general capacity, skill, and experience Ind. 461 ; Cuneo v. Bessoni, 63 Ind.

in regard to the whole subject, in all 524.

its bearings and relations ; and (2) as ' Infra, §§ 723-743. As to delusions

far as practicable, from those persons as a criminal defence, see infra, § 125.

who have had extensive opportunity 2 Smith v. Tebbitt, L. R. 1 P. & D.

to observe the conduct, habits, and 398.

mental peculiarities of the person whose ^ Here may be noticed the language

capacity is brought in question, ex- of Sir J. Hannen in two recent cases

tending over a considerable length of before the probate court. In Boughton

time, and reaching back to a period v. Knight (1873, L. R. 3 P. & D. 64;

anterior to the date of the malady." see supra, § 26) he told the jury that

Wills, 4tli ed. *136, 137. In Illinois in one sense Sir J. Nicholls' phrase was

it is said that where capacity is estab- " arguing in a circle, for, in fact, it is

lished aliunde, medical speculations are only saying that a man is not rational

of little weight. Carpenter u. Calvert, who believes what no rational man

"WILLS.

[§35.

§ 35. In most of our American states, proof of insane delusions
is insufficient to defeat a will, unless the Avill be the direct •„.•!,

' _ VVill void

offspring of such insane delusions. Where the delusion when the
1 1 -n • • 1 1 T result of in-

thus operates, then the Avili is void.^ " it appears to me, sane deiu-
says Mr. Justice Sergeant, in delivering an opinion of ^^^^'
the supreme court of Pennsylvania in 1839,^ " that the only ques-
tion in such a case is, whether the person was of sound memory

would believe ; but for practical pur-
poses it is a sufficient definition of a
delusion, for this reason — that you
must remember that the tribunal that
is to determine the question (whether
judge or jury) must, of necessity, take
his own mind as the standard where-
by to measure the degree of intellect
possessed by another man. You must
not arbitrarily take your own mind as
the measure . . . but you must of
necessity put to yourself this question,
and answer it : Can I understand how
any man in possession of his senses
could have believed such and such a
thing ? and if the answer you give is,
I cannot understand it, then it is of the
necessity of the case that you should
say the man is not sane." Subse-
quently, in charging the jury in the
case of Smee v. Smee (1879) L. R. 5 P.
D. 84, he said (p. 90), that delusions
are " ideas which you cannot conceive
any rational man to entertain." In
reviewing the case of Boughton v.
Knight, the editors of the Journal of
Mental Science say, " Sir James
Haniaen . . . says, ' the test applied
will solve most, if not all, the difficul-
ties which arise in investigations of
this kind.' The discovery is so simple
and satisfactory that one is surprised
the world should not have hit upon it
sooner. The test whereby to deter-
mine what is an insane delusion is not
whether it is of a kind which has been
observed in thousands of insane per-
sons, has a character of insanity about

it, and is associated with mental and
physical symptoms which mark a de-
finite form of disease running through
a definite course, but it is whether each
of twelve men, who have been gathered
together in a box from behind their
counters, can understand how any man
in possession of his senses could have
believed it." Jour. Ment. Sc, vol. xix.
p. 241.

' Robinson v. Adams, 62 Me. 369 ;
Coit V. Patchen, 77 N. Y. 533 ; Bonard's
Will, 16 Abb. Pr. N. S. 128 ; Thomp-
son V. Quimby, 2 Bradf. 449 ; S. C.
sub nomine Thompson v. Thompson, 21
Barb. 107 ; La Bau v. Vanderbilt, 3
Redf. (N. Y.) 384 ; Lathrop v. Board
of Foreign Missions, 67 Barb. 590
Tawney v. Long, 76 Penn. St. 106
Lee V. Scudder, 31 N. J. Eq. 633
Brown v. Ward, 53 Md. 376 ; Gardner
V. Lamback, 47 Ga. 133 ; Evans v,
Arnold, 52 Ga. 169 ; Cotton v. Ulraer,
45 Ala. 378 ; Johnson v. Moore, 1 Litt.
(Ky.) 371 ; James v. Langdon, 7 B.
Mon. 193 ; Gass v, Gass, 3 Humph.
278; Benoist v. Murrin, 58 Mo. 307;
Cole's Will, 49 Wis. 179 ; and cases
infra. See an essay by Dr. Ray on the
"Angel Will Case," 20 Am. Journ. of
Insanity, 145 ; and see also Flanagan
V. Fenlayson, 18 ibid. 249. See, also,
infra, §§ 723-743. In Indiana, by stat-
ute, a person ' ' who has become the
victim of a mental derangement in any
form" is incompetent to make a will.
Eggers V. Eggers, 57 Ind. 461.
2 Boyd V. Eby, 8 Watts, 66.

§ 35.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

and discretion, considering the act done in all its bearings, and
judging of the soundness of the mind of the supposed testator
by his conduct and declarations at the time, and as connected with
his previous insanity, and the degree of restoration of mind in the
interval ; and that if the erroneous and groundless impressions re-
ceived during the time of his delirium shall retain their hold (whether
by some physical derangement of the brain, or by some indelible
stamp on the thinking faculties), that person must be considered
still under a delusion — the effect continues, and it is only by effects
we can judge of the existence of the exciting cause — and if he is
under a delusion, though there be but a partial insanity, yet if it he
in relation to the act in question, it is well settled it will invalidate
contracts generally^ and defeat a will which is the direct offspring
of this partial insanity y^

The converse of this result, depending, however, on the same
principle, is illustrated by a case decided by Judge King, in Phila-
delphia, in 1851. " A raonomaniacal delusion," he said, " invete-
rately entertained by a testator against one who would otherwise
have been the natural object of his bounty, and shown to be the
reason which has excluded him from it, and to have had no other
existence except the distempered imagination of the testator, would
invalidate a will made under such influence. And for the very plain
reason that a will made under the suggestion of such an insane de-
lusion is not, what the law requires a will to be, the product of a
mind capable of reasoning rightly. For although the law recog-
nizes the difference between general and partial insanity, yet if the
will has been made under the influence of such partial insanity, and
as the product of it, it is as invalid as if made under the effects of
an insanity never so general. Eccentricities of conduct, absurd
opinions, or belief in things appearing to us extravagant, although
they may be and are evidences of testamentary incapacity, do not
constitute it necessarily and in themselves. A man may believe in
witches and witchcraft, as it seems this testator did, or, like him, he
may have believed his health to have been permanently affected by
slow poisons surreptitiously administered to him, and yet be compe-
tent to make a will, where such will is not shown to have some con-
nection with such absurd opinions or extravagant belief, and where

' See also Crum v. Thornly, 47 111. 192.

WILLS. [§ 37.

the mind is shown to be in other respects sound and vigorous, and
the judgment intelligent and clear. This testator was upwards of
eighty-three years old when he died, and consequently received his
early impressions when the belief in witches and witchcraft still
lingered among persons of a much higher social position and of
much better education than himself. Colonial America either in-
herited from the mother country, or received from the emigration of
continental Europe, this absurd notion. Pennsylvania did not so
far escape the general contagion as to make it very surprising that
a man in the condition of life occupied by the testator, born before
the American Revolution, should have participated in it."^

§ 36. A belief in witchcraft, it has been ruled in Indiana and
Mississippi, does not divest testamentary capacity,^ and
a will on its face rational has been sustained, although d^iuslof ^
the testator believed in mesmerism, clairvoyance, masic, ?^^ general

. insanity.

and occasional diabolic visitation.^ So, in Connecticut,
in 1850, after a very careful review of the authorities, including
Waring v. Waring, it was ruled " that the notion that a single delu-
sion is general insanity, and that the jury are to be so instructed,
irrespective of the degree or intensity of it, is nowhere counte-
nanced in this country, and not until lately in England." In this
case the court below had refused to instruct the jury " that, if the
testatrix harbored a delusion, she was while harboring such delusion
of unsound mind, and her will made at such a time would be void."
Judge Ellsworth, who delivered the opinion of the supreme court,
held that the judge was right in refusing to instruct the jury as
requested. He discusses this question at great length, and his
conclusion is: "That if the testatrix had mind enough to know and
appreciate her relations to the natural objects of her bounty, and
the character and effect of the dispositions of her will, then she had
a sound and disposing mind and memory, although her mind may
not be entirely unimpaired."^

§ 37. So, on an appeal in the New Hampshire supreme court
from the probate court, where the issue was whether a certain

• Leech w. Leech, 4 Am. L.J. N.S. 179. ^ Thompson i;. Thompson, 21 Bar-

2 Addington ti. Wilson, 5 Ind. 137; hour, 107; S. C. nom. Thompson v.

Kelly V. Miller, 39 Miss. 19. See Lee Quimby, 2 Bradf. 449.

V. Lee, 4 McCord, 183. * Dunham's Appeal, 27 Conn. 192.

§ 38.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

Nor does testator was of sane mind at the time of executing her
sanity" in- "^i^^? ^^'i ^^ appeared that the judge in the court below
capacitate. 1^q\^ that " mere moral insanity, disorder of the moral
affections and propensities, will not, unless accompanied by in-
sane delusions, be sufficient to invalidate a will or to incapacitate
a person to make one;" also "if the Avill and its provisions were
not in any way the offspring or the result of the delusion, and were
not connected with or influenced by it, then she was of sane mind to
make the will ;" and exceptions were taken to these instructions ;
Sargent, J., in the supreme court, said, " The instructions were
correct as being in accordance Avith the great weight of authority,
ancient and modern, English and American, medical and legal. "^
§ 38. In a trial before Judge Grier, in the circuit court of the
United States, in Philadelphia, in 1855,^ it was in evi-

Eccentrlci-

ties are not dence, "that the testator Avas of strong mind, but very

eccentric, obstinate, and opinionated ; but no witness,"
to follow Judge Grier's charge to the jury, " has shown facts from
which a sound and disposing mind and memory could be inferred.
His mind was greatly excited on a particular subject — his park
property — he was very stingy, and set a high value on his rights
of property. But it is no evidence of any mental delusion that he
thought this seizure of his property without his consent a high-
handed exercise of power, etc. That it became his hobby, made
him very troublesome, and a bore to all his acquaintances and
friends, is of no importance at all, in the matter trying before you,
if he retained his memory and his usual shrewdness in the manage-
ment of all his other concerns. Many a man has some hobby, and
may ride it very much to the annoyance of others, and yet be per-
fectly capable of managing his own affairs and disposing of his
property by deed or will. He may believe in spiritualism, the
Book of Mormon, Fourierism, or any other of the absurdities of the
day, which infest the trains of fanatics. He may talk very much
like a fool, as you or I may think, on these subjects, and unduly
magnify their importance. He may profess an absurd fondness for
music, and play the Pandean pipes, behave like a fool occasionally;
may tell his dreams and call them visions, and may believe in them ;

• Boardman v. Woodman, 47 N. H. « Turner v. Hand, 3 WalL Jr. 88 at
120. p. 120.

WILLS. [§ 40.

he may be addicted to telling lies about his will ; yet, gentlemen,
we could not on these accounts pronounce him unfit to manage his
affairs or dispose of his property in his lifetime ; and could not
avoid his deeds, nor condemn him to a lunatic hospital as a fit
tenant for such an institution."

§ 39. On the other hand, a delusion by a testator that his neph-
ews, being his heirs-at-law, were conspiring to take his life, and that
one of them had caused his death by putting him in a stove, coupled
with other collateral delusions, invalidates a will which Avas its pro-
duct.^ In his opinion in the court of errors, Denio, C. J., said:
" On questions of testamentary capacity, courts should be careful
not to confound perverse opinions and unreasonable prejudices with
mental alienation. These qualities may exist in any mind, even to
a high degree, and yet, so far as the vieAV which the law takes of
the case, the subject may be sane and competent to perform a legal
act, and to be held responsible for a crime. Setting aside cases of
dementia, or loss of mind and intellect, the true test of insanity is
mental delusion.^^ A person may be insane on some subjects,
though on others he may reason, act, and speak like a sensible
man. 2

§ 40. So, where a testator, during an attack of insanity, conceived
a violent and o-roundless prejudice against his oldest son,

, . 1 . ,. • i n ^ • Unless the

which prejudice he retained after his apparent conva- result of

lescence, a will, disinheriting his son, which he executed ^^'''^^ ^■

at the latter period, was ruled by the supreme court of Georgia to

be invalid.^ But, unless the prejudice be proved to be insane, in

other words, in cases where it is the conclusion of a reasoning mind,

on any evidence, no matter how slight, its indulgence will not over.

turn a will. Thus no such disabling effect was assigned to a notion

by the testator, on slight but insufficient evidence, that a daughter

was illegitimate, this notion causing her disinheritance,^ nor will

' Am. Seaman's Friend Soc. v. Hop- en, 77 N. Y. 533 ; Stackhouse v. Horton,

per, 43 Barb. 625. 15 N. J. Eq. 202 ; Evans v. Arnold, 52

2 Seamen's Friend Soc. v. Hopper, 33 Ga. 169 ; Florey v. Florey, 24 Ala. 241 ;
N. Y. 619. Cotton v. Ulmer, 45 Ala. 378 ; Cole's

3 Lucas V. Parsons, 24 Ga. 640 ; see Will, 49 Wis. 179.

White y.Wilson, 13Ves. Jr. 87 ; Jenckes < Clapp v. Fullerton, 34 N. Y. 190 ;
V. Smithfield, 2 R. I. 255 ; Stanton v. see Cole's Will, 49 Wis. 179.
Wetherwax, 16 Barb. 259; Coit v. Patch-

§ 41.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

capacity be considered as destroyed by any delusion not actually
insane.^

§ 41. The English rule was for a long time considered settled

on the same basis, and was set forth with great fulness
Ene^iand ^J ^^^^ prerogative court, during Sir J. Nicholls' presi-
^h'^^T^i'^ dency.^ The question there was as to the testamentary
sions must capacity of a gentleman named Stott, an eminent electri-
tum ofwUi cian, who had an only child, against whom he had, with-
citate^^^' out cause, imbibed an uncontrollable disgust and aversion,

which manifested itself in acts of great cruelty and oppres-
sion, and ultimately in a will by which she was cut off in favor of
collateral relations. Sir J. Nicholls pronounced against the will, in
an opinion distinguished for its elaborate fulness as well as for its
judicial strength. " It has been said repeatedly by the counsel for
the residuary legatees," so he argues at the outset, "that this ' par-
tial insanity' is a something unknown to the law of England. Now,
if it be meant by this, that the law of England never deems a per-
son both sane and insane at one and the same time, upon one and
the same subject, the assertion is a mere truism (as well, indeed, in
reason as in law), and as such is incapable of being effectively op-
posed. At the same time, as no such sort of partial insanity is set
up by the daughter, the case of partial insanity which she has really
undertaken to sustain is at no risk from the truth of that position,
so understood, being conceded. But if, by that position, it be
meant, and intended, that the law of England never deems a party
both sane and insane at different times, upon the same subject ; and
both sane and insane at the same time upon cliff ei^ent subjects — (the
most usual sense, this last, of the phrase '■partial insaniti/,' and the
one in which I take it to have been used throughout, by the counsel
for the next of kin), there can scarcely be a position more destitute
of legal foundation ; or rather, there can scarcely be one more ad-
verse to the streams and current of legal authority." The learned
judge sustains himself by the authority of Locke, who says: "A
man who is very sober, and of a right understanding in all other
things, may in one particular be as frantic as any man in Bedlam;"
and of Lord Hale, who expressly declares "there is a partial in-

• Hall V. Hall, 38 Ala. 131 ; Hall v. 2 Dew v. Clark, 3 Add. 79 ; see 1
Unger, 2 Abbott (U. S.) 507 ; affirmed, Ibid. 279 ; 2 Ibid. 102.
Dexter v. Hall, 15 Wall. 9.

WILLS. [§ 41.

sanity of mind, and a total insanity. The former is either in re-
spect to things [^quoad hoc, vel quoad illud insanire — some persons
that have a competent use of reason in respect to some subjects, are
yet under a particular dementia in respect of some particular dis-
courses, subjects, or applications], or else it is partial in respect of
degrees ; and this is the condition with very many, especially mel-
ancholy persons, who, for the most part, discover their defect in
excessive fears and grief," and yet are not wholly destitute of the
use of reason. He concludes as follows: "The deceased's state of
mind at the time of making his will is intimately, I think, connected
with his state of mind on the subject matter of his will — understand-
ing by this the disposal, by will, of his property. If the deceased
were at all times of unsound mind on the subject matter of his will,
he must have been of unsound mind at the time of making his will.
To suppose the contrary would be to suppose the deceased both
sane and insane at the same time and on the mme subject; a sup-
position, I apprehend, equally absurd in a legal and moral point of
view. And, subject to these considerations, the question in the end
to be determined — the point at final issue — is not whether the de-
ceased's insanity in certain other particulars, as proved by the daugh-
ter, should have the effect of defeating a will, generally^ of the de-
ceased, or even this identical will, but it is whether his insanity, on
the subject of his daughter, as also proved by the daughter, should
have the effect of defeating, not so much any will {a will generally^
of the deceased, as this identical will ; and to the decision of that
question I am to be understood as solely addressing myself in the
following observations: —

"Now, the daughter beinor in this case the sole next of kin, the
deceased's only child, it is quite impossible, I think, to disconnect
the daughter from the subject matter of his will — that is, of his
property; they are subjects, in effect, identified. Hence, the de-
ceased's insanity on the subject of his daughter, generally speak-
ing, being proved at all times in my judgment, it follows that his
insanity, at the time of making his will, is also proved, in my judg-
ment, unless the contrary is to be inferred from the will itself.
But the inference furnished by the will itself (and it is for this only
that I refer to the disposative part — to the contents of the will at
all) is quite the other way. For the prominent feature of the de-
ceased's insanity, in respect to the daughter, was aversion or an-

§ 42.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

tipathy to the daughter, so pleaded and so proved ; and the will is
a will plainly inofficious, so far as regards the daughter, being a
will by which she is, in effect, disinherited — disinherited, too, in
favor of parties nearly utter strangers to the deceased (for so it
appears), though not remotely connected with him by blood, being
his sister's children. Therefore it follows that, in my judgment,
the deceased is proved, upon the whole matter, to have been insane
at the time of his making this will: which was the daughter's case.
. . . Had the contents of the will furnished a contrary inference
— had the will, so far as respects the daughter, been in all parts of
it an officious will, the conclusion on this head, and so upon the
whole case, might have been different; the very contents of the will
would in that case have inferred that, however partially insane (in-
sane on the subject of his daughter) the deceased might have been,
generally speaking, still, that such partial insanity was not in ac-*
tual operation at the time of his making the will, in which respect
the will might have been valid. "^

§ 42. It is true, that, when in the same case a bill of review was
applied for to Lord Chancellor Lyndhurst, he limited
only par- with evident caution his approval of the judgment of Sir
proved by ^' ^icholls in such a way as to reserve the question of
LordLynd- partial insanity, as above stated. "I have read his judg-
ment," he says,^ "with great attention; and I collect
from it that his meaning is this : that there must be unsoundness of
mind to invalidate a Avill, but that the unsoundness may be evidenced
in reference to one or more subjects. All that the learned judge
meant to convey was, that it was no objection to the imputation of
unsoundness, that it manifested itself only or principally with refer-
ence to one particular question, or one particular person."

' A man moved by capricious, frivo- exhibits to bis cbildren must be held
lous, mean, or even bad motives, may to proceed from some mental defect,
disinherit wholly or partially his chil- If such repulsion, amounting to delu-
dren, and leave his property to stran- sion as to character be shown, the bur-
gers. He may take an unduly harsh deu will be cast on those propounding
view of the character and conduct of the will. Boughton v. Knight, L. R. 3
his children ; but there is a limit be- P. & D. 64. The American cases do
yond which it will cease to be a ques- not go to this extent. See cases cited
tion of harsh, unreasonable judgment, supra, § 40.
and then the repulsion which a parent ^ j)Qy^ y. Clarke, 5 Russ. Ch. C. 163.

WILLS. , [§ 43.

§ 43. But in 1848, In a very remarkable case before tlie privy
council, an opinion was delivered, without dissent, by
Lord Brougham, as the judgment of himself, Lord Lang- gentedfrom
dale. Dr. Lushington, and Mr. T. Pemberton Leigh, in ^ ^'^^^

. .... . Brous^ham,

which the notion of partial insanity on one point, as con- Waring v.
sistent with testamentary capacity, was explicitly repu-
diated.^ It is true that the case was one in which the same result
could have been reached even on Sir J. Nicholls' reasoning. The
testatrix, who was advanced in years, was excessively penurious
and eccentric, was extremely irritable, wrangled with her servants
to an excess, at times indulged in very obscene conversation,
believed herself the object of various amorous enterprises, and
among others from Lord Melbourne, and Lord J. Russel, who she
believed prowled about the house as fishwomen. All this, and
more, on Sir J. Nicholls' hypothesis, might have been consistent
with a testamentary capacity. But, in addition to this, it was
shown that the testatrix had an insane delusion that her brother,
whom she disinherited, had joined the Catholics, to whom she had
an aversion, and haunted her house, also in disguise. Certainly,
even on the theory of partial insanity, this, coupled as it was with
an inquisition of lunacy, would have been enough to vacate the will.
But Lord Brougham, in delivering the judgment of the privy
council, went further. '' The question being," he said, " whether
the will was duly made by a person of sound mind or not, our
inquiry, of course, is, whether or not the party possessed his facul-
ties, and possessed them in a healthful state. His mental powers
may be still subsisting, no disease may have taken them away, and
yet they may have been affected with disease, and thus may not
have entitled their possessor to the appellation of a person whose
mind was sound.

" Again, the disease affecting them may have been more or less
general ; it may have extended over a greater or less portion of the
understanding, or, rather, we ought to say, that it may have
affected more or it may have affected fewer of the mental faculties.
For we must keep always in view that which the inaccuracy of
ordinary language inclines us to forget, that the mind is one and
indivisible ; that when we speak ofits different powers or faculties,

» Waring v. Waring, 6 Moore P. C. C. 341 at p. 349.

§ 43,] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

as memory, consciousness, we speak metaphorically, likening the
mind to the body, as if it had members or compartments, whereas,
in all accuracy of speech, Ave mean to speak of the mind acting
variously, that is, remembering, fancying, reflecting, the same mind
in ail these operations being the agent. We, therefore, cannot in
any correctness of language speak of general or partial insanity ;
but we may most accurately speak of the mind exerting itself in
consciousness without cloud or imperfection, but being morbid when
it fancies ; and so its owner may have a diseased imagination, or the
imagination may not be diseased, and yet the memory may be im-
paired, and the owner be said to have lost his memory. In these
cas€s we do not mean that the mind has one faculty, as conscious-
ness, sound, while another, as memory or imagination, is diseased ;
but that the mind is sound when reflecting on its own operations,
and diseased when exercising the combination termed imaginary, or
casting the retrospect called recollecting.

" This view of the subject, though apparently simple, and almost
too unquestionable to require or even to justify a formal statement,
is of considerable importance when we come to examine cases of
what are called, incorrectly, ' partial insanity,' which would be
better described by the phrase ' insanity,' or ' unsoundness,' always
existing, though only occasionally manifest,

" Nothing is more certain than the existence of mental disease of
this description. Nay, by far the greater number of morbid cases
belongs to this class. They have acquired a name — the disease
called familiarly, as well as by physicians, ' monomania,' on the
supposition of its being confined, which it rarely is, to a single
faculty or exercise of the mind ; a person shall be of sound mind, to
all appearance, upon all subjects save one or two, and on these he
shall be subject to delusions — mistaking for realities the sugges-
tions of his imagination. The disease here is said to be in the
imagination ; that is, the patient's mind is morbid or unsound
when it imagines ; healthy and sound when it remembers. Nay,
he may be of unsound mind when his imagination is employed on
some subjects, in making some combinations, and sound when making
others, or making one single kind of combination. Thus he may
not believe all his fancies to be realities, but only some or one. Of
such a person we usually predicate that he is of unsound mind only
upon certain points. I have qualified the proposition thus on pur-
46

■WILLS. [§ 43.

pose ; because, if the being or essence which we term the mind is
unsound on one subject, provided that unsoundness is at all times
existing on that subject, it is quite erroneous to suppose such a mind
really sound on other subjects. It is only sound in appearance ;
for if the subject of the delusion be presented to it, the unsoundness
which is manifested by believing in the suggestions of fancy, as if
they were realities, would break out ; consequently, it is absurd to
speak of this as a really sound mind (a mind sound when the sub-
ject of the delusion is not presented), as it would be to say that a
person had not the gout, because, his attention being diverted from
the pain by some more powerful sensation by which the person was
affected, he, for the moment, was unconscious of his visitation. It
follows, from hence, that no confidence can be placed in the acts, or
in any act, of a diseased mind, however apparently rational that act
may appear to be, or may in reality be. The act in question may
be exactly such as a person without mental infirmity might well do.
But there is this difference between the two cases ; the person uni-
formly and always of sound mind could not, at the moment of the
act done, be the prey of morbid delusion, whatever subject was pre-
sented to his mind ; Avhereas, the person called partially insane —
that is to say, sometimes appearing to be of sound and sometimes of
unsound mind — would inevitably show his subjection to the disease
the instant the topic was suggested. Therefore, we can, with per-
fect confidence, rely on the act done by the former, because we are
sure that no lurking insanity — no particular, or partial, or occa-
sional delusion — does mingle itself with the person's act and mate-
rially affect it. But we never can rely on the act, however rational
in appearance, done by the latter, because we have no security that
the lurking delusion, the real unsoundness, does not mingle itself
with or occasion the act. We are wrong in speaking of partial un-
soundness ; we are less incorrect in speaking of occasional unsound-
ness ; we should say that the unsoundness always exists, but it
requires a reference to the peculiar topic, else it lurks and appears
not. But the malady is there, and, as the mind is one and the
same, it is really diseased, Avhile apparently sound ; and really its
acts, whatever appearance they may put on, are only the acts of a
morbid or unsound mind. Unless this reasoning be well founded,
we cannot account for the unanimity with which men have always
agreed in regarding as the acts of an insane mind those acts, to all

§ 43.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

appearance rational, which a person does who labors under delu-
sions of a plainly extravagant nature, though there is nothing in the
act done, and nothing in the conduct of the party while doing it, at
all connected with the morbid fancies. If these fancies only affect
the party now and then, if for some months he is free from them —
laboring under them at other times, then his acts apparently rational
would not be regarded as those of a person mentally diseased. But
if Ave were convinced that at the time of doing the acts the delusion
continued, and was only latent by reason of the mind not having
been pointed to its subject, and would have instantly shown itself
had that subject been presented, then the act is at once regarded as
that of a madman. Thus there have been many cases of persons
laboring under the delusion that they were other than themselves ;
have believed themselves deceased emperors or conquerors ; others,
supernatural beings. Suppose one who believed himself the em-
peror of G-ermany, and on all other subjects was apparently of sound
mind, did any act requiring mind, memory, and understanding.
Suppose he made his will, and either did not sign it (before signing
was required), or, if he did, signed it with his own name ; but sup-
pose we were quite convinced that, had any one sjDoken on the Ger-
man Diet, or proceeded to abuse the German emperor, the testator's
delusion would at once break forth, then we must at once pronounce
the will void, be it as officious and as rational, in every respect, as
any disposition of property could be. Of course, no one could pro-
pound such a will with any hopes of probate, if it happened that
while making it the delusion had broken out, even although the
instrument bore no marks of its existence at the time of its concoc-
tion. It must always be a question of evidence, on the whole facts
and circumstances of the case, whether or not the morbid delusion
existed at the time of the factum ; that is, whether, had the subject
of it been presented, the cord been struck, there would have arisen
the insane discord which is absent, to all outward appearance, from
the cord not having been struck. The principles which have been
laid down do not at all differ from those on which the courts have
acted, which text writers have construed, and which scientific men,
both moralists and physicians, have approved. In the well-known
case of Dew v. Clark, reported 3 Addams, 97, buT; also reported,
with the great advantage of the learned judge's corrections, and
published separately by Dr. Haggard, we find Sir John Nicholl
48

WILLS. [§ 44.

stating that mere eccentricity is not enough to constitute mental
unsoundness, nor great caprice, nor violence of temper, but that
there must be an aberration of reason ; and he adopts a definition
of delusion given by the learned counsel in the cause (now a mem-
ber of this court), deeming it well described by the expression that
' it is a belief of facts which no rational person would have believed.'
Perhaps, in a strictly logical view, this definition is liable to one
exception, or, at least, exposed to one criticism, namely, that it
gives a consequence for a definition ; and it may be more strictly
accurate to term ' delusion' the belief of things as realities which
exist only in the imagination of the patient. The frame or state of
mind which indicates his incapacity to struggle against such an erro-
neous belief, constitutes an unsound mind. Sir John NichoU justly
adds that such delusions are generally attended with eccentricities,
often with violence, very often with exaggerated suspicions and

jealousies The existence of delusions being proved, and

their continuance proved or assumed, at the date of the factum^ so
that the court is satisfied of the testatrix then laboring under their
influence, it is wholly immaterial that they do not appear in the will
itself. The party propounding often approached this point in argu-
ment, and repeatedly adverted to the fact — perhaps we should say
the assertion or assumption — that this will betrays no marks of the
alleged delusions, or generally of an unsound mind. There was a
manifest disposition to lay down a rule that no person laboring under
monomania, or partial insanity, can be deemed intestable, unless
the kind of insanity appears on the face of the will. But there was
wanting the courage to lay down a proposition which would at once
have been rejected, and must have been met with the question,
Could any court admit to probate the will of the man who said (in
the case cited by Sir John Nicholl in Dew v. Clark), 'I am the
Christ,' although that will bore no marks whatever of an unsound
mind, still less of the dreadful delusion under which the party la-
bored ?"

§ 44. So far, indeed, has this doctrine been pushed that an
extravagant and absurd passion for pets has been, in
England, regarded as proof of incapacity. In one case pushed to
this rule Avas applied to an unmarried woman who kept, *^^ ^^'
in kennels in her drawing-room, fourteen dogs, of both
VOL. I. — 4 49

§ 45. "1 MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

sexes ;^ and to another, who kept in her house a great multitude of
cats, which were provided with regular meals, and were furnished
with plates and napkins.^ But are such extravagances necessarily
proofs of insanity ? May they not be sometimes marks simply of
the desire to produce a sensation, such as that which led to the dog
tea-parties which some years ago were got up as new excitements
by the leaders of fashion in Rome ? Or, if it were possible for a
jury to put itself in the place of an unmarried and solitary woman
of advancing years, would such capricious indulgence in pets appear
any more inconsistent with sanity, than would an analogous indul-
gence, by a young man of dash and wealth, in hounds, horses, and
foxes ?

§ 45. In 1867, in the court of probate and divorce, the position
Followed ^^^^ ^ collateral insane delusion invalidates a will which
by Lord -^vas not directly the product of such delusion, was re-
Smithy. newed by Sir J. P. Wilde (Lord Penzance) on the fol-
^ * ■ lowing state of facts : —
Ann Thwaytes, a widow, died in London on April 8, 1866, pos-
sessed of a fortune, left to her by her husband, of -£500,000. By
a will dated March 6, 1866, she left legacies amounting to £45,000
to her husband's family ; legacies of the same amount to the family
of her sister, Mrs. Tebbitt; legacies to a considerable amount to
persons whom she had become acquainted with in the latter period
of her life, to servants, and to charities ; and the residue to John
Simms Smith and to Samuel Smith. The will was contested by
Mrs. Tebbitt; and on August 6, 1867, judgment was delivered by
Sir J. P. Wilde .^ He began by stating that " volition" to give
disposing power " should be that of a mind of natural capacity, not
unduly impaired by old age, or tainted by morbid influence. The
inquiry before the court has relation only to the last of these con-
ditions ; and the subject is again narrowed by the nature of the
morbid influence or mental disorder imputed ; for it is not an obvious
and general perversion of the mind from reason, nor of language or
conduct generally irrational, that the testatrix is here accused ; but
only of that peculiar form of mental malady which used to be called

' Yglesias v. Dyke, Prer. Court, May, ^ ibid.
1852, Taylor, 2d ed., ii, 556. Redfield 3 gmith v. Tebbitt, L. R. 1 P. & D.
on Wills, L chap. iii. § 11. 398.

WILLS. [§ 45.

partial insanity, and which, in the more exact language of modern
science, has obtained the name of monomania. A jyerson who is
affected by monomania, although sensible and prudent on subjects
and occasions other than those upon which his infirmity is com-
monly displayed, is not in law capable of making a will. This has
been clearly decided in the several cases quoted at the bar, of which
it is only necessai^y to 7iame that of Waring v. Waring. It is
needless to travel over the paths by which this conclusion has been
reached. It is properly the starting-point in such an inquiry as
the present. For I conceive the decided cases to have established
this proposition : that if disease be once shown to exist in the mind
of the testator, it matters not that the disease be discoverable only
when the mind is addressed to a certain subject, to the exclusion of
all others, the testator must be pronounced incapable. Further,
that the same result follows, though the particular subjects upon
which the disease is manifested have no connection whatever with
the testamentary disposition before the court.''^ It is true that evi-
dence as to Mrs. Thwaytes showed her mind to have been generally
diseased. She called herself " the third person in the Trinity.
She was the Holy Ghost, and Mr. Simms Smith was the Father."
She believed she was the victim of attempts to poison. She was
attended by the spirits of deceased friends. Her husband was
" the devil," for whom she would not go into mourning. Her heirs-
at-law were " doomed to perdition." She could "never die." She
was " above Grod." She had a tiara of jewels made, in which she
was to ascend to heaven. Her London drawing-room was furnished
at an expense of j£15,000 for the " day of judgment." While her
husband was lying dead, and before his funeral, she made a draft
will by Avhich, with the exception of about ,£50,000, she bequeathed
all her vast property to Dr. Smith. This was followed by an
annuity of ,£2000 a year, and in after years by donations to the
amount of £50,000. Yet Dr. Smith " was a stranger in blood to
her, and is not shown," so speaks Sir J. P. Wilde, " up to the time
of the above will, to have rendered her any service beyond ordinary
medical advice, or filled any other relation to her than medical
adviser. In after years he added to his medical advice the trouble
of receiving her dividends, and paying them in to her bankers."
Certainly evidence such as this does not show simply a " mono-
mania" on any one special and isolated topic, disconnected with the

§ 46.] MENTAL UNSOUNDNESS IN ITS LEGAL KELATIONS.

subject matter of testamentary disposition. If Mrs. Thwaytes was
not insane, in the general sense of the term, she cherished insane
delusions as to those who were the subjects on whom her will was
to act. Hence, on the principle that " partial" insanity defeats a
will which is its direct offspring, Mrs. Thwaytes's will, viewing her
insanity as partial, would have been inoperative. But, as has
been seen, the language of Sir J. P. Wilde goes beyond this. For
he declares that mental disease destroys testamentary capacity
" though the particular subjects upon which the disease is mani-
fested have no connection whatever with the testamentary disposi-
tion before the court. "^

§ 46. But in July, 1870, the general legal proposition thus

stated was expressly repudiated by the court of queen's

atedbythe bench. ^ The will in dispute was one in favor of the

bench'^ testator's niece. It was made in 1863. He had been

Banks Y. confined as a lunatic for some months in 1841. He was

Gooafellow.

subject, down to the date of the will, to particular
delusions — he was personally molested by a person who had
been long since dead, and he was pursued by visible evil spirits.
x\s to his general capacity the evidence was contradictory, but it
was admitted that at times he was incapable of making a will. The
jury were directed to consider whether, at the time of making the
will, the testator was capable of having such a knowledge and ap-
preciation of facts, and was so far master of his intentions, free from
delusions, as would enable him to have a will of his f wn in the dis-
position of his property, and act upon it; and they were further
directed that the mere fact of his being able to recollect things, or
■to converse rationally on some subjects, or to manage some business,
would not be sufficient to show he was sane; while, on the other
hand, slowness, feebleness, and eccentricities, would not be suffi-
■cient to show he was insane ; and that the whole burden of showing
that the testator was fit at the time, was on the party claiming un-
der the will. It was ruled by the court in banc that the direction
was practically right, for that it was immaterial whether the delu-

' See a notice of this decision in the lor, and Hannen, JJ. This has been

British and Foreign Medico-Chir. Re- followed in Boughton r. Knight (1873),

view for October, 1867. L. R. 3 P. & D. 64, and Smee v. Smee

2 Banks v. Goodfellow, L. R. 5 Q. B. (1879), L. R. 5 P. D. 84, both bv Sir

549 ; Cockburn, C. J., Blackburn, Mel- James Hannen, P. J.

WILLS. [§ 46.

sions remained latent or not at the time, if the testator was other-
wise comjoetent to make a Avill, as neither of the delusions — the
dead man being in no Avay connected with the testator — had, or
could have had, any influence upon him in disposing of his property.
Lord Cockburn, C. J., in delivering judgment, said that "it was
necessary to consider how far such a degree of unsoundness of mind
as is involved in the delusions under which this testator labored
would be fatal to testamentary capacity ; in other words, whether
delusions arising from mental disease, but not calculated to prevent
the exercise of those faculties essential to the making of a will, or
to interfere with the consideration of the matters which should be
weighed and taken into account on such an occasion, and Avhich de-
lusions had, in point of fact, no influence whatever on the testamen-
tary disposition in question, are sufiicient to deprive a testator of
testamentary capacity and to invalidate a will."

He then analyzed the proof of the existence of partial insanity in
the testator, and after an extended review of the law, both English
and American, he said: "No doubt, when the fact that the testator
had been subject to any insane delusion is established, a will should
be regarded with great distrust, and every presumption should in
the first instance be made against it. When insane delusion has
once been shown to have existed, it may be difiicult to say whether
the mental disorder may not possibly have extended beyond the
particular form or instance in which it has manifested itself. It
may be equally difficult to say how far the delusion may not have
influenced the testator in the particular disposal of his property;
and the presumption against a will made under such circumstances
becomes additionally strong where the will is, to use the term of
the civilians, an inofficious one, that is to say, one in which natural
affection and the claims of near relationship have been disregarded.
But when in the result the jury are satisfied that the delusion has
not affected the general faculties of the mind, and can have had no
effect upon the will, we see no sufficient reason why the testator
should be held to have lost his right to make a will, or why a will
made under such circumstances should not be upheld. Such an in-
quiry may involve, it is true, considerable difficulty, and require
much nicety of discrimination ; but we see no reason to think that
it is beyond the power of judicial investigation and decision, or may
not be disposed of by a jury directed or guided by a judge. In

§ 47-] MENTAL UNSOUNDNESS IN ITS LEOAL RELATIONS.

the case before us, two delusions disturbed the mind of the testator,
the one that he was pursued by spirits; the other that a man, long
since dead, came personally to molest him. Neither of these delu-
sions, the dead man not having been in any way connected with
him, had, or could have had, any influence upon him in disposing
of his property. Under these circumstances, then, we see no ground
for holding the will to be invalid." The rule, therefore, which was
applied for on the ground that the judge misdirected the jury, and
that the verdict was against the weight of evidence, was discharged.
§ 47. We have, therefore, an apparent conflict in the English
decisions as above recorded. On the one hand, in the
view of Sir J. Nicholl, Chief Justice Cockburn, and Sir
James Hannen,^ ''partial insanity," consisting of delu-
sions and hallucinations not connected with the subject
matter of a will, does not invalidate such will. On the
other hand, in the opinions quoted from Lord Brougham and Lord
Penzance, it is held that insanity or "mental disease," when it ex-
ists at all, destroys testamentary capacity, though it displays itself
in delusions which in no way touch the subject matter of the will.
If we view the question psychologically, as will hereafter be more
fully done,^ it will be difficult to overthrow the reasoning of Lord
Brougham and Lord Penzance. We cannot hold one department of
the mind to be sane, and the others insane, unless we adopt the com-
partment theory, which, as will hereafter be seen, is absurd.

Conflict in
these deci-
sions. Lord
Brough-
am's the-
ory.

1 "A few years ago it was generally
considered that if a man's mind were
unsound in one particular, the mind
being one and indivisible, his mind
was altogether unsound, and therefore
that he could not be held capable of
performing rationally such an act as
the making of a will. A different doc-
trine subseqiiently prevailed. If the
delusions could not reasonably be con-
ceived to have had anything to do with
the deceased's power of considering the
claims of his relations upon him and
the manner in which he should dispose
of his property, then the presence of a
particular delusion would not incapaci-
tate him from making a will. . . .

This is an extremely delicate and diffi-
cult investigation, and may be illus-
trated by reference to the physical
world. There might be a little crack
in some geological stratum of no im-
portance in itself, and nothing more
than a chink through which water fil-
tei's into the earth ; but it might be
shown that this flaw had a direct influ-
ence upon the volume, or color, or
chemical qualities of a stream that is-
sued from the earth many miles away.
So with the mind." Sir J. Hannen in
Smee v. Smee, L. R. 5 P. D. 84, at p.
90.
2 Infra, §§ 533-572.

WILLS. [§ 49.

§ 48. In a modified form the compartment theory is thus exhibited
in detail by Lord Chief Justice Cockburn.^ " It is not

Of'

given to man," he says, "to fathom the mystery of the Cockbum
human intellio;ence, or to ascertain the constitution of our ^" '^■'^'

° ' compart-

sentient and intelligent being. But whatever may be its mentthe-
essence, every one must be conscious that the faculties
and functions of mind are as various and distinct as are the powers
and functions of our physical organization. The senses, the instincts,
the affections, the passioyis, the moral qualities, the will, perception,
thought, reason, imagination, memory, are so many distinct facul-
ties or functions of mind. The pathology of mental disease, and
the experience of insanity in its various forms, teach us that while,
on the one hand, all the faculties, moral and intellectual, may be
involved in one common ruin, as in the case of a raving maniac; in
other instances, one or more only of these faculties or functions
may be disordered, while the rest are left unimpaired and undis-
turbed; that, while the mind may be overpowered by delusions
which utterly demoralize it, and unfit it for the perception of the
true nature of surrounding things, or for the discharge of the com-
mon obligations of life, there often are delusions which, though the
offspring of mental disease, and so far constituting insanity, yet
leave the individual in all other respects rational, and capable of
transacting the ordinary aifairs and fulfilling the duties and obliga-
tions incidental to the various relations of life. No doubt, when
delusions exist which have no foundation in reality, and spring only
from a diseased and morbid condition of the mind, to that extent the
mind must necessarily he taken to he unsound, just as the hody, if
any of its p)arts or functions is affected hy local disease, may he
said to he unsound, though all its other members may he healthy
and their powers or functions unimpaired^

§ 49. If we take the last qualification, which is here placed in
italics, as conceding the general unsoundness of such a „^. ,.

, , , . . Objection

mind, there is no practical difierence between the opinion to this
of Chief Justice Cockburn, on the one side, and the views
of Lord Brougham, and of all sound modern psychologists, on the
other side. But, going back to the beginning of the above extract,
if it were the opinion of its able and eminent author, that (1) the

• Per Cockburn, C. J., Banks v. Goodfellow, uhi supra.

§ 50.] MENTAL UNSOUNDNESS IN ITS LEfiAL RELATIONS.

senses, (2) the instincts, (3) the affections, (4) the passions, (5)
the moral qualities, (6) the will, (7) the perception, (8) the thought,
(9) the reason, (10) the imagination, and (11) the memory, are
independent and separate portions of the mind, so that one of these
may be insane, and yet the individual may be in all other respects
rational, we must reject such a position as not only philosophically
incorrect, but as fraught with consequences dangerous to public
justice. That such is the case will be hereafter fully shown.^ It
is enough now to say, that if we suppose a person to have an insane
delusion of the "senses" (the first of C. J. Cockburn's "distinct
faculties or functions of mind"), it is hard to conceive how such a
delusion can continue to exist, if the other faculties remain in vigor.
In fact, all men have, sleeping or waking, such delusions; and the
question of sanity depends, not on the liability of the "senses" to
delusion, but on the capacity of the other mental faculties to dispel
the delusion. Thus, for instance, De Boismont tells us that, at a
soiree given by M. Bellart, in Paris, some days before the execu-
tion of Marshal Ney, Prince of Moskowa, the usher, having the
name of M. Marechal Ame to announce, pronounced it " M. le Mare-
chal Neyy "An electric shudder ran through the assembly, and,
for my own part, I own that the resemblance to the prince was for
a moment as perfect to my eyes as reality." The delusion Avas the
eifect of a highly excited imagination, seizing upon an association
of sounds. The dispelling of this delusion was the result of "per-
ception," "thought," "reason," and "memory," acting healthily.
The delusion could not have continued to exist while these latter
functions of mind continued in a healthy state. If it had continued
to exist, this would have been a proof that these functions were dis-
eased. Or, to state the proposition generally, no insane delusion
can continue to operate, when proper modes have been taken to dis-
pel it, while the reason is unimpaired. The fact that such a delu-
sion continues to operate, under such conditions, proves the unsound-
ness of the reason.

§ 50. That such, indeed, is C. J. Cockburn's own conclusion,
we gather from the concluding and italicized portions of the extract
just quoted ; and the apparent conflict of opinion to Avhich we have
adverted may therefore be reconciled when we recollect that as in

» Infra, §§ 142, 533-572,

WILLS. [§ 51.

sanity, so" in insanity, there are various gradations, and that sanity
and insanity, therefore, have a region in which they

TtiGoriGS

melt into each other imperceptibly.^ To adopt an illus- reconciled
tration that Lord Penzance borrows from Mr. Burke, we gition^^of*'
know what night is, and we know what day is, but it is mentaitwi-

. . . light.

hard for us to say when either day or night becomes twi-
light. Hence, just as some sane persons (e. g. in sleep or when
acting under compulsion) may be irresponsible, so some insane
persons may be responsible, and be legally viewed as such. A
person may be of diseased mind, yet may be capable of testifying,
in cases when such evidence is necessary,^ in a court of justice ;
may make contracts, as has just been seen, which, when there is no
unfairness, and the party contracted with is without notice, will be
held binding; and may be responsible, though it may be in a dimin-
ished grade, for crime. ^ And it is clear that a person of a very low
degree of intelligence, even when the mind is debilitated by old
age, may make a will which, if not unduly influenced, will be good.
Several cases to this effect have been already cited ; and such cases,
in fact, are relied on by Chief Justice Cockburn for the maintenance
of the position that persons of " unsound mind" may, under cer-
tain circumstances, when they have a disposing memory, and when
they have no delusion as to the testamentary subject matter, make
a valid will.

§ 51. If we accept the position just stated — that there may be
degrees of mental disease Avhich do not destroy testa-
mentary capacity, provided the testator has at the time j^^l^giWe^
a disposing memory, and is not influenced by fraud or
imposition — then we not only reconcile the cases which have
been cited above, but we avoid a very embarrassing alterna-
tive. For, unless we concede that there may be grades in mental
disease, and that in the lesser and more qualified grades there may
be testamentary capacity, we must, in cases of collateral mono-
manias, hold either that the mind is divisible, so that one part may
be sane and the other insane, or, as maintained by Lord Brougham

1 See The Borderlands of Insanity, v. Walton, 40 L. J. Ch. 368. Infra, §
by Andrew Wynter, M.D., N. Y. 1875. 242.

2 R. V. Hill, 2 Den. C. C. 254 ; Fen- 3 gge infra, § 122.
uel V. Tait, 1 C. M. & 84; Spittle

§ 53.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

and Lord Penzance, that a single such monomania destroys capacity
in toto. Let us examine these hypotheses singly.

First, that the mind is divisible, so that one part may be sane and
th.e other insane. The psychological error of this hypothesis is
elsewhere displayed.^ Its practical absurdities may be here briefly
noticed. If it be true, a testator, instead of being one person, is
a combination of two, one sane, and another insane. His will, like
himself, is divisible. That part which emanates from his insane
delusions is void ; the part that emanates from his sane judgment is
valid. So as to his contracts. Supposing we assume this duality,
we have, instead of one obligor, two — the insane part of the obligor,
making obligations which are void ; the sane part, making obliga-
tions which are valid. Or, if we hold that the will or the contract
is avoided when the insane elements in the testator's or obligor's
mind affect such contract or will, we must enter on the still more
difficult task of deciding the extent to which such insane elements
operate. What tests can we have for such an examination ? Who
can undertake to limit the operation of motives admitted to be in-
sane, and therefore incapable of rational measurement ? Who can
undertake to say that these insane influences at a particular moment,
by yielding to a sound judgment, become virtually sane ?

§ 52. On the other hand, if we hold that insane delusions, dis-
Yet deiu- connected with the subject matter of a will, destroy tes-
sions need tamentary capacity in toto. we are embarrassed with

not destroy _„ , . , „ ,;r ^

capacity m difficulties at least equally great. Many men whose
" "* testamentary capacity it would be monstrous to dispute,

have confessed delusions whose sanity it would be equally mon-
strous to maintain.^ Thus, Dr. Johnson was confident that he heard
his deceased mother's voice, crying " Samuel ;" nor was this hallu-
cination ever corrected ; and yet no one would maintain that he was
incapable of making a Avill.

§ 53. Lord Castlereagh, a short time before his suicide, gave a
This proved '^^I'rative of a supposed apparition, in which he firmly
by in- believed, and which exercised a material influence on his

stances of

delusions life. When in the Irish Parliament, he went to visit a

J See infra, §§ 532-572. Illusions, by Jas. Sully, N. Y., 1881.

2 See Visions, a Study of False Light, And see an article on Auditory Hallu-
by E. A. Clarke, M.D., Boston, 1878; cinations, in 8 Journ. Med. Sci. 597.

WILLS. [§ 53 «.

friend at a castle in the north of Ireland. Shown into a afifecting
dark and venerable chamber, where there existed every minded
material which would excite a superstitious imagination, Persons.
having dismissed his valet, he went to bed. Hardly, however, was
his candle extinguished, when he became aware of a glimmer of
light in his room. No fire had been lighted — the curtains were
closed — and no explanation affording itself of this phenomenon, he
rose from the bed, when, to his surprise, on turning to the point
whence the light proceeded, he perceived the figure of a young and
beautiful child, with a halo encircling its brow. With perfect con-
fidence in the reality of the object, but believing it had been got
up artificially as a joke, he followed it until it nestled in the arch
of the great chimney, and at last sunk beneath the fireboard. The
next morning he sought in vain for a clue by which the mystery
could be dispelled. It was a subject which his host evidently
shunned. On putting the question pointedly, however. Lord Cas-
tlereagh was informed that it was true that such a spectre as that
had been reported in former times to have appeared under the title
of the "Radiant Child." Once again the phantom appeared to the
same noble and capable statesman — but no longer, it is said, with a
radiant crown. This last appearance was not long before his own
self-destruction, and yet, if the exterior alone was considered, when
he was at the height of his power and fame. Certainly the spectre
can now be easily explained, because a man who is weak enough to
commit suicide is not too strong to be haunted in a dream by an
apparition of whose traditional reputation he had undoubtedly
heard, though the recollection afterwards escaped him. And yet
we have here a case of an hallucination so entire as to produce
partial insanity on that point, and perhaps to have been a motive
power in suicide. Still, it would hardly have been maintained that
Lord Castlereagh, than whom no man of his day exhibited, when in
public life, greater coolness or business clearness, Avas incapable,
because of this single delusion, of making a contract or will.

§ 63 a. A similar anecdote is related of the late President Lin-
coln : " It was just after my election in 1860," so he is reported to
have said to his secretary, Mr. John Hay, " when the news had
been coming in thick and fast all day, and there had been a great
' hurrah, boys !' so that I was well tired out, and went home to rest,
throwing myself on a lounge in my chamber. Opposite to where I
lay was a bureau, with a swinging-glass upon it ; and, in looking in

§ 53 a.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

that glass, I saw myself reflected nearly at full length ; but ray
face, I noticed, had two separate and distinct images, the tip of the
nose of one being about three inches from the tip of the other. I
was a little bothered, perhaps startled, and got up and looked in
the glass ; but the illusion vanished. On lying down again, I saw
it a second time — plainer, if possible, than before ; and then I
noticed that one of the faces was a little paler — say five shades —
than the other. I got up, and the thing melted away, and in the
excitement of the hour I forgot all about it — nearly, b*ut not quite,
for the thing would once in a while come back again : but I never
succeeded in bringing the ghost back after that, though I once tried
very industriously to show it to my wife, who was worried about it
somewhat. She thought it was a ' sign' that I was to be elected to
a second term of office, and that the paleness of one of the faces
was an omen that I should nOt see life through the last term."^
Nor was this a single case of morbid cerebral action in the life of
this remarkable man. " He was," says his biographer, Mr. Lamon,
" readily impressed with the most absurd superstitions." " He
lived constantly in the serious conviction that he was himself the
subject of a special decree, made by some unknown and mysterious
power, for which he had no name." " He had great faith in the
virtues of the ' mad stone,' although he could give no reason for it,
and confessed it looked like superstition." Twice was his nervous
system so disordered, that it was necessai-y, according to the same
authority, to withdraw him from his business associations, and place
him, as had been the case with Lord Chatham, in seclusion.^ Yet
Mr. Lincoln was eminent for shrewd sense, for cool judgment, and
for wise forethought in business, private as well as public. He
enjoyed, to an almost unparalleled degree, the confidence not merely
of those who knew him only by public reputation, but of those who
thoroughly knew his private history. By both classes was he
trusted with the highest stakes. He possessed in singular fulness,
if we should judge from this estimate, the very qualities which con-
stitute testamentary capacity. Yet Mr. Lincoln, on the strictest
test above laid down, would have been incapable of making a will.

t The Life of Abraham Lincoln, etc., " Ibid., pp. 164, 241, 503. See Wash-
by Ward H. Lamon. Boston : J. R. ington Irving's Life, by Pierre Irving,
Osgood & Co., 1872, p. 476. See, as to vol. iii. 141.
peculiarities of Mr. Garfield, North Am.
Rev. for Jan. 1882, p. 10.

WILLS. [§ 56.

§ 54. It was the firm belief of Lord Herbert, of Cherbury, that a
divine vision had indicated to him the correctness of a particular
course of religious speculation which, on the faith of the supposed
vision, he published, and which he made the basis of his future ac-
tion. The second Lord Lyttleton was equally persuaded that a
divine warning had admonished him of his approaching death. And
no less confident, though less serious in its consequences, was the
conviction of Philip, second Earl of Chesterfield, of the reality of a
similar preternatural interference. One night, in the year 1652, he
saw something white, like a spread sheet, at the head of his bed.
He tried to seize it, but it slid away and disappeared. His thoughts
immediately turning to his wife, who was at Networth, with her
father, he hurried there, but was met by a servant with a letter from
his wife, which informed him that precisely the same apparition had
appeared to her, and had been the cause of the journey of the mes-
senger whom she had dispatched to inquire as to his health.

§ 55. Abercombie gives an illustration of habitual hallucination
which at the same time was consistent with reason. The patient,
when he met a person in the street, was uncertain whether the lat-
ter was a real person or a phantom, though with close observation
he was able to detect the dissimilarity. The features of the real
person would be more decided, and more complete than those of the
phantom ; but the power of discrimination by this process was too
uncertain to be relied on, and the only test of which the patient felt
certain was that of the voice, footstep, or touch. The phantom had
none of these ; the substance, of course, had all. He had the faculty
of recalling his visions at will, by powerfully fixing his attention
on the conceptions of his mind, but while the hallucination could be
invoked at will, it could not be arbitrarily dispelled. That it was
an hallucination, he was perfectly convinced ; and that it was en-
tirely consistent with general reason was demonstrated by his clear-
ness of head and business capacity.^

§ 56. A recent case in this country illustrates the same position
with remarkable point. A merchant, who had for years managed
with shrewdness and success an extensive business, became thor-
oughly imbued with the spirit rapping and spirit conversing halluci-

' In this connection, see The Athenaeum for Jan. 17, 1880, and 2(j Journ.
Ment. Sci. 147.

§ 57.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

nation. Though he conducted his business as well as those who
were not thus afflicted, his family conceived that this and cognate
eccentricities made him a fit subject for a commission of lunacy.
This he soon discovered, and laid his plans accordingly. He had
theretofore done a cash business, and his punctuality and accuracy
had won him extensive credit. He immediately proceeded to buy
a large stock of goods from a number of the most sagacious business
men within his reach, and gave long notes in exchange. " I do not
know how it strikes you," was the way he broached the matter to
his family, " but whatever may have been your chances once, they
are light now. All I have to do is to subpoena my friends to whom
I have just given my notes, and you may depend upon it, they will
not only testify strongly as to their opinion of my sanity, but will
bring that opinion down to this particular hour."^

§ 57. The cases which have just been noticed comprise chiefly
Important those in which, while the hallucination is positive, the
modifica- practical deflection of conduct produced may be slight,
conduct This, however, cannot be said to be the case with those
caiisedby instances in which a supposed supernatural vision or
vibions. rnonitor is received as a guide on the most momentous
actions of life. Napoleon declared on many critical occasions
that he was conscious of the preternatural vision of a star, which
sometimes even appeared in his own cabinet, by which he allowed
himself to be guided. Bernadotte, beyond doubt, on one important
movement at least, was swerved from his course by the vision of an
old woman. Constantino felt or feigned a similar impressibility.
These cases, it is true, may be suspected; but suspicion cannot be
thus cast on the multitudes of brave men who were driven in border
or highland contests from the battle-field by a threatening wraith,
or who were encouraged to the wildest sacrifices by the beckoning
Df an imaginary finger or the invocations of a preternatural voice.^

1 See an article on The Hallucina- vision seen by the Rev. D. Jessopp,
lions of Mahomet and others, 20 Jouru. Athenaeum, Jan. 17, 1880 ; and 26
Ment. Sci. 561. Journ. Med. Sci. 147; an article on

2 In this connection may he referred the Visions of Sane Persons, in Lit-
to, Visions, A Study of False Light, by tell's Living Age, No. 1895, from the
Edward H. Clarke, M.D., Boston, 1878 ; Fortnightly Review ; Hallucinations of
Illusions, by James Sully, New York, Hearing, article by Frederick Joly,
1881; communications relating to a M.D., 22 Journ. Med. Sci. 475.

WILLS.

[§59.

§ 58. There are, however, other eases in which there is a general
morbid derangement of all, or of a material portion, of ^^^^ ^^^^
the organs. To these, as well as to the great mass of morbid de-

, ,,!../. 11.1 rang-ement

instances where hallucmation lorms the groundwork, the need not in-
observations of De Boismont, on the case of a man Avho ^^"^^^^
supposed that he had sunk all his wealth at the bottom of a well,
apply with great force. "It may be asked whether, in the state of
mind in which the patient was, whose history we have related, he
was capable of making a will. This is a very difficult question ;
but its solution is not an impossibility. When the conduct of the
individual does not depart from received usages, when it is not con-
trolled by one of those false ideas that make him hate his relations
and friends without any motive, and when he regulates his expenses
prudently, we do not think that whimsical actions, or words, the
results of an erroneous belief, but having no influence on the promi-
nent acts of his life, should deprive a person of his civil liberties,
and of the power of making his will."

§ 59. In conformity with what has been said, spiritual- Spirituaiis-
istic opinions, no matter how wild and unfounded they sionsdonot
are, or how completely the party holding them may be tate unless
the victim of the fraud and impositions of others, do not tesutor°o
of themselves, if not producina; special provisions based undue in-

. ' , , fluence or

on mtormation thus erroneously held to have been re- affecting
ceived, or subjecting the testator to a special fraudulent provisions,
influence swaying his will, work testamentary incapacity.^

But the influence that may be gained by a "medium," or by one
practising on visionary and sentimental beliefs, is to be jealously
scrutinized.^

1 Robinson v. Adams, 62 Me. 369 ;
see a note to this case, Redfield's Cases
on the Law of Wills, 384 ; La Bau v,
Vanderbilt, 3 Redf. N. Y. 384 ; Bonard's
Will, 16 Abb. (N. Y.) Pr. N. S. 128 ;
Norton v. Relley, 2 Eden, 286 ; Brown
V. Ward, 53 Md. 376.

2 See Lyon v. Home, L. R. 6 Eq.
655. In this case, wherein a deed of gift
without consideration was given by an
aged widow to Home, the spiritualist,
Gittord, V. C, spoke of spiritualism as

being "as presented by the evidence"
(at all events), "mischievous non-
sense, well calculated, on the one hand,
to delude the vain, the weak, the fool-
ish, and the superstitious ; and, on the
other, to assist the projects of the needy
and of the adventurer." See Norton
V. Relley, 2 Eden, 286.

In Smith's Will, Wise. Sup. Ct. 1881,
8 N. W. Rep. 602, it was held that mere
belief in spiritualism does not by itself
incapacitate, though accompanied with

§60.]

MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

§ 60. We may therefore hold, in accordance with the tenor
of the great body of American decisions, as well as with those

many eccentricities. From the opinion
of the court we take the following :
" The deceased was a person of vigorous
intellect and will, had unbounded faith
in the accuracy and soundness of his
own j udgment, and was moved to action
by an earnest, sanguine temperament.
In such a man we should naturally
expect some peculiarities or eccentrici-
ties of conduct, but we find fewer of
these disclosed in the evidence than
might reasonably be looked for. It
appears that for a short time — perhaps
two or three months, but during what
year is not shown — he advertised one
of his callings by wearing on the front
of his hat a small paper on which were
printed the words, ' Solicitor of Pat-
ents.' Also, that he was seen at dif-
ferent times on skates in a public
street of the city. It seems, however,
that he was testing a new kind of skate
which he had invented. Thus far we
find no evidence that the deceased was
not of sound mind when he executed
the instrument propounded as his last
will and testament. But there was
another peculiarity of the deceased
which will now be considered. He was
what is commonly called a spiritualist.
He had come to believe, that through
certain mediums, he could communi-
cate with the spirits of deceased persons.
He received, through one of these me-
diums, what purported to be a message
from his deceased wife, advising him
to marry the appellant, to whom he
was then paying his addresses. He
doubtless believed the message was
from his deceased wife. He also con-
sulted mediums quite frequently con-
cerning his business and proposed in-
ventions. He once engaged in wheat
speculations on advice from such
sources. At first he was successful,

but later operations were not so suc-
cessful. It does not appear that he
persisted in these speculations very
long after fortune turned against him.
Duriug the French and German war
he believed reports of the condition of
the contest which he received froin
mediums, although different from the
current newspaper reports. But when
the evidence of the truth of the news-
paper reports became strong, his confi-
dence in the infallibility of the other
reports was weakened. He received a
communication purporting to be from
his deceased wife after his last mar-
riage, and after he had ti'ouble with
some of his children, approving of what
he had done. This was evidently after
he had executed his will. It does not
appear whether or not he regarded the
communication as genuine, but proba-
bly he did so regard it. But the in-
tense faith of the deceased in the
accuracy of his own judgment was a
counterpoise to his belief in the possi-
bility of obtaining direct messages from
the other world. It led him to admit
another element in his belief which
would leave him free to follow his own
judgment in a given case, no matter
how strongly he might be pressed by
supposed supernatural advice or en-
treaty to act against it. So he came to
believe, as one witness states it, ' that
there was more than one kind of spirits
— some might try to fool him, and oth-
ers might not.' It is perfectly obvious
from the whole testimony that the in-
fallible test which he applied to deter-
■ mine from which of these classes of
spirits a given message came was this :
If it accorded with his judgment, it
came from the reliable class ; if not,
then it came from the other class and
was to be disregarded."

WILLS.

[sS 60.

Better opin-
ion, that
delusions
do not per
se destroy
capacity.

just cited of Sir J. Nicholl and of Chief Justice Cockburn, that
mental unsoundness, exhibiting itself in insane delusions
collateral to the subject matter of the will, does not per
se destroy testamentary capacity. Such delusions are,
indeed, incompatible with entire sanity. They would
destroy any will made under their influence. They can-
not be regarded as diseases of special organs exclusively, but
are the results of mental disease as an entirety. But they may
nevertheless exist in a mind which has sufficient intelligence to be
invested with testamentary power in respect to all subjects except
those on which such delusions usually operate.^

Nor should it be forgotten that the effects of such incapacitation
would be most cruel to the sufferer himself. Society is prone
enough to make eccentricities and weaknesses the subject of con-

In Bonard's Will, ut supra, the testa-
tor held to Pythagorean doctrines,
and, dying without kindred, left his
property to the Society for Prevention
of Cruelty to Animals. Held, that this
was not evidence of insane delusion,
even though the testamentary intention
might not, otherwise than for the alleged
delusion, have heen entertained.

> See infra, §§ 125, 723, 740. Dr.
Hammond, in an interesting tract on
this particular question, has reached
conclusions which, though we may dis-
sent from some of his postulates, are in
entire coincidence with the present
• state of our law. The results, as he
states them, are as follows : —

1. That there is a form of insanity
known as monomania, which is charac-
terized by a perversion of the under-
standing in regard to a single object,
or a limited series of objects.

2. That one of the most prominent
features of this species of insanity is a
morbid feeling of hatred to friends and
relatives, and a disposition to do them
injury.

3. That it is especially a symptom of
monomania to imbibe delusions which
exercise a governing influence over the

VOL. I. — 0

mind of the affected individual, and
force him to the commission of acts
which in a state of sanity he would not
perpetrate.

4. That the monomaniac has power
to conceal his delusions, and to arrest
the paroxysms of delirium to which he
may be subjected.

5. That the testator, .James C. John-
ston, was affected with monomania ;
that he had conceived a dislike to his
relatives ; that he was subject to delu-
sions in regard to them ; that he was,
in consequence, not free to make a will
such as he would have made had he
been sane ; and that he had power to
conceal his delusions, and to control
his paroxysms of delirium,

6. Tliat there could not possibly have
been a lucid interval when the will
was written, signed, acknowledged,
and reaffirmed, because all these acts
show a continuance of the delusions
under which the testator labored. — In-
sanity in its Medico-legal Relations. Opin-
ion Relative to the Testamentary Ca-
pacity of the late James C. Johnston,
of Chowan County, North Carolina.
New York, 1866. See also Boardman
I'. Woodman, 47 N. H. 120.

§ 61.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

tempt, ridicule, or insult. The courts should be cautious how, by
taking away the power to insure respect, they thus increase the
misfortune of a class into which no man can assure himself he may
not fall, which includes almost the wdiole of those whose lot it is to
reach extreme old age, and which already carries a burden suffi-
ciently heavy. If such persons cannot reward by their bounty
those by whom they are treated with tenderness, and by whose
means their comfort is guarded, they Avill lose, in most instances,
the only means remaining to them of self-preservation. As society
at present stands, the only remedy seems to be to throw the same
tender guardianship around the feeble-minded and the eccentric as,
in a passage elsewhere cited, has been so touchingly invoked by
Chancellor Kent for the old.

III. LUCID INTERVALS.^

§ 61. Unless what in the courts has been called habitual insanity
Where ^^ sliown, /. g., such insanity as is, in its nature, continu-

habitual qus and chronic, the fact of the existence of a prior period

insanity is ■'■

shown,' lu- of lunacy does not suffice even to throw the burden of
vais must proof on the party setting up competency.^ The case,
be proved, however, is otherwise, when such habitual insanity is
shown to have existed ; in which case the presumption is that the
party was insane at the time, and the burden is on those seek-
ing to prove the contrary.^ " If you can establish," says Sir Wm.
Wynne, as cited by Mr. Jarraan,^ " that the party afflicted habit-
ually by a malady of the mind has intermissions, and if there was
an intermission of the disorder at the time of the act ; that, being

1 See, for the psychological view of an, 3 Wash.. C. C. E,. 580 ; Stevens v.
this question, infra, § 744. Vancleve, 4 Wash. C. C. R. 262 ; Frazer

2 State V. Wellington, 58 Me. 453 ; v. Frazer, 2 Del. Ch. 260 ; Taylor v.
Lewis V. Baird, 3 McLean, 55 ; Turner Creswell, 45 Md.422 ; Carpenter r. Car-
V. Rusk, 53 Md. 65; Carpenter v. Car- penter, 8 Bush. 283; Rush v. Megee,
penter, 8Bush, 283 ; Acheyw. Stephens, 36 Ind. 69 ; State v. Reddick, 7 Kans.
8 Ind. 411 ; Menkins v. Lightner, 18 143 ; White v. Wilson, 13 Ves. 87 ;
111. 282 ; Brown v. Riggin, 94 111. 560. White v. Driver, 1 Phill. 84 ; Hoge v.

3 Halley v. Webster, 21 Me. 461; Fisher, 1 P. C. C. R. 163; Smith i-.
Clark V. Fisher, 1 Paige, 171 ; .Jackson Tebbitt, L. R. 1 P. & D. 398 ; Ayrey i;.
V. Vandusen, 5 Johns. 144 ; Gombault Hill, 2 Add. 206. For other cases, see
V. Public Admr., 4 Bradf. 226 ; Harden infra, §§ 246-269.

V. Hays, 9 Pa. St. 151 ; Aurentz v. An- * 1 Jarm. on Wills, 5th Am. ed., Bige-
derson, 3 Pitts. 310 ; Harrison v. Row- low, *37, R. & T. 72.

WILLS. [^ 62.

proved, is sufficient, and the general habitual insanity will not affect
it ; but the effect of it is this : it inverts the order of proof and pre-
sumption ; for, until proof of habitual insanity, the presumption is,
the party agent, like all human creatures, was rational; but when
an habitual insanity in the mind of the person who does the act is
established, then the party who would take advantage of the fact of
an interval of reason must prove it." And in a Massachusetts case,
Dewey, J., said, " neither observation nor experience shows us that
persons who are insane from the effect of some violent disease, do
not usually recover the right use of their mental faculties. Such
cases are not unusual, and the return of a sound mind may be an-
ticipated from the subsiding or removal of the disease which has
prostrated their minds. It is not, therefore, to be stated as an
unqualified maxim of the law, ' once insane, presumed to be always
insane ;' but reference must be had to the peculiar circumstances
connected with the insanity of an individual, in deciding upon its
effects upon the burthen of proof, or how far it may authorize the
jury to infer that the same condition or state of mind attaches to the
individual at a later period. There must be kept in view the dis-
tinction between the inferences to be drawn from proof of an habitual
or apparently confirmed insanity, and that which may be only tem-
porary."^

§ 62. When a lucid interval is set up as the period in which a
will was executed, it being established that the testator
was previously habitually insane, it is necessary to show ofdirposino-
not merely a cessation of the more violent symptoms of ^^^^ ^'^st

•^ , . be shown.

the disease, but a restoration of the faculties, at the very
period of such execution.^ But it is not necessary that the restora-
tion be to a state of mind equal to that originally possessed by the
patient. It is enough if he have a disposing mind.^

' Hix V. Whittemore, 4 Mete. 545. Yes. Jr. 605 ; Holyland ex parte, 11

See Turner v. Rusk, 53 Md. 65 ; Wil- Ves. Jr. 10 ; Steed v. Galley, 1 Keen,

liams on Exrs., 6th Am. ed., 34. 620 ; Brogden v. Brown, 2 Add. 441 ;

^ Halley v. Webster, 21 Me. 261 ; Ayrey v. Hill, 2 Add. 206 ; White v.

Ciombault v. Public Admr., 4 Bradf. Driver, 1 Phill. 84; Sutton v. Sadler,

Sur. 226 ; Boyd v. Eby, 8 Watts, 66 ; 3 C. B (N. S.) 87. See infra, § 246.

Harden r. Hays, 9 Penn. St. 151 ; Gang- Jar. Wills, 5th Am. ed., R. & T. 77.

ware's Est., 14 Penn. St. 417 ; Chandler ^ See cases supra; Clark v. Fisher,

V. Barrett, 21 La. Ann. 58 ; Rush v. 1 Paige, 171 ; Jackson v. Vandusen, 5

Megee, 36 Ind. 69; Hall v. Warren, 9 Johns. 144; Lucas v. Parsons, 24 Ga.

§ 64.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

§ 63. Where no extraneous influence is shown to have been ex-
erted, the character of the act itself, as will soon be
character of noticed, goes far to determine the capacity of the party

act affords
presump-

at the particular time. Thus Dr. Lushington said :^ "In
tionof tiie opinion of a very great judge. Sir William Wynne,

in the celebrated case of Cartwright v. Oartwright, he
said where a rational act was done in a rational manner, such was
the strongest and best proof which could arise even as to a lucid
interval. Now, I cannot say that I subscribe altogether to this
observation of Sir William Wynne, for I do not, but it is entitled to
great weight ; and, to a certain extent, a rational act done in a
rational manner, though not, I think, the strongest and best proof
of a lucid interval, does contribute to the establishment of a lucid
interval." And, generally, the rational character of a will, ema-
nating directly from a testator afflicted with insanity, gives in itself
a strong presumption of a lucid interval.^

§ 64. The hypothesis of idiocy is negatived by proof of business

capacity. Thus in an English case elsewhere noted, the
idiocy a evidence showed that the deceased was, in 1815, placed
^^^^ ' in confinement as an idiot, and there remained till 1817,

when he was released. In 1820, about which time he was proved
to have committed certain rational acts of business, he made a
rational will. In 1822, he was again placed in confinement, and so
remained till his death, in 1849. In 1833 he was found, on a
commission, to have been of unsound mind, without lucid intervals,
since 1815. The will was sustained, on the ground, that, though

640 ; Lilly v. Waggoner, 27 111. 395. ' Bannatyne v. Bannatyne, supra, §
But where a party is assumed to be in- 21. See Clark v. Fisher, 1 Paige, 171 ;
sane at the time of placing a holograph Young v. Earner, 27 Gratt. 96 ; Kings-
will among his valuable papers, there bury v. Whitaker, 37 La. Ann. 1055 ;
must be clear proof of his retaining it Chambers v. Queen's Proctor, 2 Curt,
therein in a lucid interval, to give it 415 ; McAdams v. Walker, 1 Dow, 148,
effect as a valid disposition of his pro- at p. 178. A discharge from a lunatic
perty. It would be too broad to say asylum is prima facie evidence of resto-
that if at any time after he was of sound ration. Haynes v. Swann, 6 Heisk.
mind, and then retained it among his (Tenn.) 560.

papers, it would be conclusive that he ^ Nichols v. Binns, 1 Sm. & Tr. 239.

intended it to be his will. Porter v. See infra, § 83.
Campbell, 58 Tenn. 81. See infra, §
744.

WILLS.

r§68.

it is otherwise with regard to lunacy, yet, when idiocy is set up,
it is disproved by contemporaneous intelligent acts of business.^

IV. INTOXICATION.

& 65. As has been already shown,^ intoxication, when Drunken-

1 . 1 • , /. ,. nes8 to de-

complete, renders a party incompetent to make a binding stroy busi-

contract, although a contract made by him when intoxi- ciTy mu^t"

cated, and voidable on this ground, may be ratified by ^^ ':°^'

him when sober.

§ 66. On the same principle it is held that to avoid a will there
must be proved drunkenness to such an extent as to
have rendered the party unconscious of what he was ^y^fg^*^
doing.^ If he know what his estate consists of, and Avho
are the proper objects of his bounty, the mere fact that he is under
stimulants at the time of making the will does not affect its validity.

§ 67. Where, however, in addition to the fact that the party was
intoxicated at the time, he was then under the influ-
ence of others, a degree of intoxication sufficient merely fa^g^of ™n-

to subiect him to such influence may be ground for dueiaflu-
. . . .... ence.

avoiding the will, although such intoxication, without

such proof of undue influence, would not have that effect.*

§ 68. Where, again, a will is executed under the influence of

drink intentionally and fraudulently administered, it is

invalid, by the operation of a rule already noticed with jg inten-

regard to contracts f but where neither fraud nor undue ^°^e^^^

influence is shown, actual derangement of the reasonino; drunk, will

«,...! , . , is void.

faculties, arising from undue excitement, must be estab-
lished. If the mere existence of excitement produced by stimulants
be held to vitiate any act performed during its continuance, many

' Bannatyne v. Bannatyiie, ut supra.

2 Supra, § 16. See an article en-
titled " The Quality of Mental Opera-
tions Debased by the Use of Alcohol,"
by T. L. Wright, M.D., in " The Alien-
ist and Neurologist." St. Louis, July,
1881.

3 Shelford on Lunacy, 276 ; Gardner
V. Gardner, 22 Wend. 526; Peck v.
Carey, 29 N. Y. 9 ; Starrett v. Doug-

lass, 2 Yeates, 48 ; Andress v. Weller,
3 N. J. Eq. 604 ; Turner v. Cheeseman,
15 N. J. Eq. 243 ; Pancoast v. Graham,
id. 294 ; Pierce v. Pierce, 38 Mich. 412 ;
Temple v. Temple, 1 Hen. & Munf.
476 ; Hebert v. Winn, 24 La. Ann.
346 ; Key v. Holloway, 7 Baxt. 575 ;
Gore V. Gibson, 13 M. & W. 623.

* Shelford on Lunacy, 274, .304.

5 Wheeler v. Alderson, 3 Hagg. 602.

§ 70.J MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

meritorious wills, whose terms are peculiarly calculated to maintain
the peace and well-being of a family, as well as to carry out the
testator's mature intentions, would be set aside.

§ 69. And not even long continued habits of intoxication will of
Habitual themselves afford a presumption of incapacity, unless the

drunkard testator was proved to have been so drunk at the time

not neces- . f. i , i •

sariiy inca- as to be Ignorant of what he was doing, or to have been

paci a e . -Q^^ej. undue or fraudulent influence. Unless the latter

conditions exist, there must be a downright incapacity, an entire

loss of control over mind and body, in order to invalidate a wiil.^

§ 70. As has already been incidentally shown, the fact that a

,, ,. party making a will is at the time under the influence of
Mere slim- ^ -^ ^

uiation stimulants does not invalidate the wnll. To work inca-

does not .,.,, ,~, ,,.„.

incapaci- pacity his judgment must be anected or his affections per-

^ ^' verted by the stimulant. The reason of this distinction

between drunkenness and insanity is well pointed out by Sir John
Nicholl. Insanity, he argued, may often be latent, whereas there
can scarcely be such a thing as latent ebriety ; and, consequently,
all that is required to be shown, in ordinary cases, is the absence
of excitement at the time of the act done ; at least, the absence of
excitement in any such degree as would vitiate the act done ; "for,"
he said, " I suppose it will be readily conceded that, under a mere
slight degree of that excitement, the memory and the understanding
may be, in substance, as correct as in the total absence of any ex-
citing cause. Whether, where the excitement in some degree is
proved to have actually subsisted at the time of the act done, it did
or did not subsist in the requisite degree to vitiate the act done,
must depend, in each case, upon a due consideration of all the cir-
cumstances of that case in particular ; it belonging to a description
of cases that admits of no more definite rule, applicable to the de-
termination of them, than the one I have suggested, that I am
aware of."^

» Ayrey v. Hill, 2 Add. 206 ; Gard- N. J. Eq. 8 ; Andress v. Weller, 3 N. J.

ner V.Gardner, 22 Weud. 526; Julke Eq. 604; Pierce v. Pierce, 38 Mich.

V. Adam, 1 Redf. 454; McLaughlin's 412: Black v. Ellis, 3 Hill (S. C.) 68.

Will, 2 Redf. 504 ; Thompson v. Kyner, See, also, Shelford ou Lunacy, 276.

65 Penn St. 368; Ritter's App. 59 " Ayrey r. Hill, 2 Add. 206; S. P.

Penn. St. 9 ; "Whitenack v. Stryker, 2 Key v. Holloway, 7 Baxt. 575.
70

WILLS. [§ 72.

§ 71. In the end, however, habitual drunkenness may produce
either continued insanity or an imbecile condition, which
renders the party unfit for the transaction of any busi- drunken-
ness. As is well said by Harrington, J., in the often prodiSe^in-
quoted case of Duffield v. Morris,^ " the probable cause sanity or

. ..... imbecility.

of insanity often affords valuable aid m determining its
character. Drunkenness is itself a species of insanity . . . but
long-continued habits of intemperance may gradually impair the
mind and destroy the memory and other faculties, so as to produce
insanity of another kind. . . . The form of insanity usually pro-
duced by intemperance is mania ci potu or delirium tremens, which
is a raging and decided insanity that cannot be mistaken, temporary
in its duration, and when off is followed not only by a lucid inter-
val, but by permanent restoration to reason. Yet it is not impro-
bable that drunkenness, long-continued or much indulged in, may
produce on some minds and with some temperaments permanent de-
rangement, fixed insanity." Under such circumstances capacity
will be permanently destroyed.

§ 72. In a recent (1878) case in Michigan^ a will Avas determined
aerainst by a iury on the grounds of intoxication and un- ,„

>=> ^ J >} -J o Illustrative

due influence. But the supreme court ordered a new cases.
trial, partly on the ground that the jury had plainly de- pierce.
cided against the weight of the testimony. "Intoxication,"
said Campbell, C. J., "is a term capable of no precise definition, and
there may be many degrees of it. If it exists to such an extent as
to deprive a testator of the power of controlling his conduct, and
knowing what he is about, it will, of course, have a very evident
bearing on his capacity. But if, on the other hand, the act which
he does is one which his intoxication does not prevent him from
doing with comprehension, it cannot of itself avoid it. . . . It is
not impossible for a person more or less intoxicated to make a will
which is not the product of the intoxication. . . . Inasmuch as it is
a temporary condition, the testimony must be confined to the time
involved in the transaction in controversy. If Pierce was not over-

• 2 Harr. 375. See, also, Gardner v. 2 pierce v. Pierce, 38 Mich. 412, at
Gardner, 22 Wend. 526; M'Sorley v. p. 417.
M'Sorley, 2 Bradf. Sur. 188; Kings-
bury V. Whitaker, 32 La. Ann. 1055.

§ 76.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

come by drunkenness when he made his will, it is not important
what his condition was on other occasions."

§ 73. In a trial before Lord Campbell, at nisi j^rius, a wilP be-
Handiey v ^^S impeached on the ground the testator's mind was im-
stacey. paired by drinking, it appeared that the testator had
been frequently drunk, had had an attack of delirium tremens a few
days before the execution of the will, and that the will was drawn
by a son of the principal devisee, at the latter's house, he being an
old friend of the testator. Lord Campbell ruled that the question
was simply whether the testator was sane and sensible at the time
of making the will, and able to understand its contents. If so, and
if the will was his spontaneous act, free from force or fraud, it was
valid.

§ 74. In Peck v. Carey, the probate was contested on the ground
Peck V. ^^^^ ^h® testator was intoxicated at the time the will was

Carey. niade. The case came before the court of appeals in

1863, and on this point C. J. Denio said: "It is not to be
understood that a will made by one, who is at the time under the
influence of intoxicating liquor, is, for that reason, void. Intoxica-
tion is said to be temporary insanity. The brain is at the time
incapable of performing its proper functions ; but that species of
derangement ceases, when the exciting cause is removed, and
sobriety brings with it a return of reason. In order to avoid a will
made by an intemperate person, it must be proved that he was so
excited by liquor, or so conducted himself during the particular
act, as to be, at the moment, legally disqualified from giving effect
to it."2
Use of § '''S. In analogy with the principles stated above, it

medicines j^^^g jjeen held that mental incapacity on the part of the
may pro- ^ "^ ^ '^

duce inca- testator, when produced by the use of medicines, is suffi-

pacity. . . ,. , , . .„''

cient to mvalidate his will.-*

V. UNDUE INFLUENCE AND FRAUD.

§ 76. While the learned judge who tried Lord Portsmouth's case,
which has just been cited, came to the conclusion that Lord Ports-

' Handley v. Stacey, 1 F. & F. 574. ' Lin v. Cobb, 85 111. 296. See an article

2 Peck V. Carey, 27 N. Y. 17. in Am. Journ. of Insanity for 1872, p.

3 Stedham r. Stedliam, 32 Ala. 525 ; 13.
Garrison v. Blanton, 48 Tex. 299 ; Scan-

WILLS. [§ 76.

mouth was of " unsound mind," the position was broadly taken by
him that weakness alone, when circumvented by fraud, „

. 1 Fraud act-

would be sufficient to invalidate even so solemn a contract ing on

, ., . . . , . , . . . . weakness

as marriage, and on this position his decision in part invalidates
rested. Still more unequivocal was the decree of the and^deed
privy council in dismissing an appeal from the court
of chancery of the Isle of Man, setting aside two deeds, on the
ground that the grantor in both of them was of unsound mind at
the time he executed them, and that they were obtained from him
by fraud and undue means. The evidence showed that the grantor,
an old man, feeble both in body and mind, separated from all his
relations, without a friend to advise him, and surrounded by those
only who were contriving to get his fortune, conveyed away nearly
all that he was possessed of, even the house he lived in, to persons
not related to him, either by blood or marriage ; and all his estate
in lease was to become the property of the same strangers after his
death. The consideration of <£100 was inserted for conveying
away property worth ,£1400 ; and this was not to be paid to the
grantor, but to his executor after his death, without any interest
being charged on it in the mean time. Lord Wynford, in giving
the opinion of the privy council, said, that the law would " not assist
a man who is capable of taking care of his own interests, except in
cases where he has been imposed upon by deceit, against which
ordinary prudence could not protect him. If a person of ordinary
understanding, on whom no fraud has been practised, makes an
improvident bargain, no court of justice can release him from it.
Inadequacy of consideration is not a substantial ground for setting
aside a conveyance of property. But those who, from imbecility
of mind, are imcapable of taking care of themselves, are under the
special protection of the law. The strongest mind cannot always
contend with deceit and falsehood ; a bargain, therefore, into which
a weak one is drawn under the influence of either of these, ought
not to be held valid, for the law requires that good faith should be
observed in all transactions between man and man. If this con-
veyance could be impeached on the ground of the imbecility of the
grantor only, a sufficient case has not been made out to render it
invalid; for the imbecility must be such as to justify the jury,
under a commission of lunacy, in putting his property and person
under the protection of the chancellor ; but a degree of weakness of

73*

§ 77.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

intellect far below that which would justify such a proceeding ,
coupled with other circumstances to show that the weakness, such as
it was, had been taken advantage of, will be sufficient to set aside
any important deedT^ This same view has been uniformly acted
on in the English and American courts, and it is expressed bj Mr.
Justice Story with his usual felicity.^ " The acts and contracts of
persons who are of weak understandings, and who are thereby liable
to impositions, will be held void in courts of equity, if the nature
of the act or contract justify the conclusion, that the party has not
exercised a deliberate judgment, but has been imposed upon, cir-
cumvented, or overcome by cunning or undue influences."^ But,
when articles furnished are suitable necessaries, the estate of a
person of weak mind is liable, if there be no fraud.*

§ 77. With even greater emphasis has the same doctrine been
Still more announced by courts of law in respect to wills. Pecu-
so wills. liarly liable as is a dying man, even though his intellect
be of average strength, to have his comfort destroyed, if not his
purpose overturned, by those in whose society he is placed, the
policy of the law has anxiously sought for every safeguard by
which such intrusions upon the sanctity of dissolution, as well as
upon the rights of families, can be deprived of motive. " The
same memory for the making of a will," agreed all the judges of
England at an early date, " is not at all times when the party can
answer to anything with sense, but he ought to have judgment to
discern and to be of perfect memory, otherwise the will is void."^
" He ought to have a disposing memory," said Lord Coke, " so
that he is able to make a disposition of his lands with understand-
ing and reason ; and that is such a memory as the law calls sane
and perfect."^ While, therefore, it is only necessary that there

' Blackford v. Christian, 1 Knapp, is thus put by Judge Washington :

73 ; Shelford on Lunacy, 272. " Had he a disposing memory — was he

2 1 Story Eq. Juris. § 238. capable of recollecting the property he

' See also 1 Fonbl. Eq. B. 1, ch. 2, was about to bequeath, the manner of

§ 3 ; Holland v. Miller, 12 La. Ann, distributing it, and the objects of his

624. bounty ?" (Stevens v. Vancleve, supra,

* Skidmore v. Romaine, 2 Bradf. § 25 and note). Proof, however, of
Sur. 122. intellect having been impaired by dis-

5 Combe's case, Moore,, 759. ease, or of intellectual feebleness alone,

* Marquis of Winchester's case, 6 will not avail by itself to defeat a
Rep. 23a ; 2 Buls. 211. The same point will, when adequate capacity remains.

WILLS.

[§77.

should be the capacity of reasonable disposition, great jealousy has
been exercised for the correction of extraneous influence on the
testator. Thus wills have been set aside when they were preceded
by over-iraportunity of friends standing in confidential relations,^
where the housekeeper and physician were shown to have earnestly
urged a non-natui-al scheme of distribution f where the wife in fact
dictated the will, the testator being at the time unable to speak,
she pretending to understand him, and making herself the sole
devisee for life, and imposing as a devisee in remainder a fictitious
niece f where one relation produced the disinheritance of another
by false representations as to his character ;^ where the testator was
old and feeble, and the will was n'^'de under the directions and to
suit the purposes of a colored woman in the family; and where a
husband exercised coercion.^ In short, whenever the provisions of
a will are inconsistent with natural justice, it will require strong
proof of capacity and volition to sustain it, and slight proof of undue
influence or fraud to set it aside. ^ To authorize a will in favor of

Sloan V. Maxwell, 2 Green Ch. 563;
Andress v. Weller, ibid. 604; Dornick
V. Reichenback, 10 S. & R. 84. The
cases will be found enumerated in 1
Powell on Devises, 127 ; Shelford on
Lunacy, 275-6 ; 4 Kent's Com. 566 ; 1
Jarman on Wills, 28. See, also. Con-
verse V. Converse, 21 Vt. 168 ; Home
V, Horne, 9 Ired. 99 ; Harrison v.
Rowan, 6 W. C. C. R. 580 ; Grabill v.
Barr, 5 Penn. St. 441 ; Den v. Johnson,
4 N. J. L. 454; Kinne v. Kinne, 9
Conn. 102; Ford v. Ford, 7 Humph.
92 ; Howard v. Coke, 7 B. Mon. 665 ;
Blanchard v. Nestle, 3 Denio, 37 ;
Modern Probate of Wills, 91. In Scot-
land an arbitrary test is applied, it
being there provided that no settle-
ment or gift executed after the com-
mencement of the disease of which a
person dies, except those in the ordi-
nary administration of the estate, shall
be valid. If the testator survives sixty
days afterwards, or has been to mar-
ket unsupported, the will is validated.
Bell's Diet. "Death Bed "

' Hacker v. Newborn, Style, 427 ;
Bates V. Bates, 27 Iowa, 110.

2 Fearon ex ■parte, 5 Ves. Jr. 633.

3 Scribner n. Crane, 2 Paige C. C. R.
147.

* Dietrick v. Dietrick, 5 S. &R. 207 ;
Nussear v. Arnold, 13 S. & R. 323;
Patterson v. Patterson, 6 S. & R. 54.

6 Denton v. Franklin, 9 B. Mon. 28
e Marsh v. Tyrrell, 2 Hag. Ecc. 84

7 Brydges v. King, 1 Hag. Ecc. R
256 ; Rollwagen v. Rollwagen, 63 N. Y
504 ; Kinne v. Johnson, 60 Barb. 69 ;
Brick V. Brick, 66 N. Y. 144 ; Snyder
V. Sherman, 23 Hun, 139 ; Baker v.
Lewis, 4 Rawle, 356 ; Bitner v. Bitner,
65 Penn. St. 347 ; Goble v. Grant, 3 N.
J. Eq. 629 ; Lyons v. Van Riper, 26 N.
J. Eq. 337 ; Cadwallader v. West, 48
Mo. 483 ; Tobin v. Jenkins, 29 Ark.
151. In a case in Connecticut D. gave
$4000 out of $14,000 to relatives, and
the rest to a church. The will was
drawn by H. who was a vestryman of
the church, and who was left sole exe-
cutor. D.'s family were not notified

§ 77.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

a wife, however, to be set aside, the influence alleged to have been
exerted must be shown to have reached coercion, impairing the
husband's free agency,^ or fraud must be proved.^ In ordinary
cases also, it will not be enough to prove mere influence, without
proof of fraud or contrivance, or such coercion as destroys free
agency. " Honest intercession and persuasion," " and fair and
flattering speeches," though abundantly proved to have been used,
do not afiect the instrument's validity.^ The fact of the paper
being entirely in a party's handwriting gives a strong presumption
of cotemporaneous sanity, which is not effaced by proof of generally
impaired intellect, nor by the fact, that, when the paper is a will, it
is marked by omissions of property.* The same presumption exists
when the testator has a distinct recollection, at the time of the
execution of the will, of the terms he directed at the time it was
prepared.^

of his dangerous illness till after tlie
execution of tlie will, whicli was wit-
nessed by H. and another vestryman
and H.'s brother-in-law, and which
misdescribed certain relatives of D.
Held, that these were circumstances re-
quiring explanation on the part of the
propounders of the will, and that the
jury might consider the question of
undue influence without any direct
proof of such influence. Hovey and
Pardee, J.J., dissenting. Drake's App.,
45 Conn. 9.

1 Barnes v. Barnes, 66 Me. 286
Clark V. Sawyer, 3 Sandf. Ch. 351
Gardner v. Gardner, 22 Wend. 526
see Rollwagen v. Rollwagen, 63 N. Y.
504, for a case where there was such
coercion and fraud ; Bicknell v. Bick-
nell, 2 T. & C. 96 ; Zimmerman v. Zim-
merman, 23 Penn. St. 375 ; Hopple's
Est., 7 W. N. C. (Pa.) 523 ; Pingree r.
.Jones, 80 111. 177 ; Tingley r. Cowgill,
48 Mo. 291 ; Rankin v. Rankin, 61 Mo.
295 ; Boyse v. Rossborough, 6 H. L. C.
47; 1 Redf. Wills, chap. x. section 2 ;
Wisener v. Maupin, 58 Tenn. 342. See
Stultz V. Schaeffle, 16 .Jur. 909 ; 18 Eng.
L. & Eq. 576.

2 Scribner v. Crane, 2 Paige, 147.

3 In general, the persuasion and in-
fluence of friends and attendants are
not such as to properly constitute un-
due influence. Hoge's Will, 2 Brewst.
(Pa.) 450 ; Williams's Est., 8 W. N. C.
(Pa.) 202; Gleespin in re, 26 N. J.
Eq. 523 ; Hughes v. Murtha, 32 N. J.
Eq. 288 ; Eddy's Case, id. 701 ; Chand-
ler V. Ferris, 1 Harr. (Del.) 454 ; Sut-
ton V. Sutton, 5 Harr. 459 ; Sechrest
V. Edwards, 4 Mete. (Ky.) 163 ; Har-
rison's Will, 1 B. Mon. 351 ; Lucas v.
Cannon, 13 Bush, 650 ; Roe v. Taylor,
45 111. 485 ; Yoe v. McCord, 74 111. 33 ;
Allmon r. Pigg, 82 111. 149 ; Mclntyre
V. McConn, 28 Iowa, 480; Rabb v.
Graham, 43 Ind. 1 ; Gilreath v. Gil-
reath, 4 Jones' Eq. (N. C.) 142 ; Mc-
Daniel v. Crosby, 19 Ark. 533 ; Jack-
man's Will, 26 Wis. 104; Carroll's
Will, 50 Wis. 437. Even importunate
persuasion is not undue influence.
Tawney v. Long, 76 Penn. St. 106.

* McDaniel's Will, 2 J. J. Marsh.
331 ; Fulleck v. Allison, 3 Hagg. 527.
5 Hathorn v. King, 8 Mass. 371.

WILLS.

[§79.

§ 78. In an issue, tried in Pennsylvania in 1862, on the validity
of a writing purporting to be a will, a party set up as a jjndu
defence great imbecility in the testatrix, and undue influ- influence
ence and actual duress. The case came before the amount to
supreme court on a writ of error, and on the point of ^°°^ ^^^^ '
undue influence Judge Strong said: " ISTow, that is undue influence
which amounts to constraint, which substitutes the will of another
for that of the testator." " It may be either through threats or
fraud, but, however exercised, it must, in order to avoid a will, de-
stroy the free agency of the testator at the time when the instrument
is made."^

So, in Alabama, it has been said, that to set aside a will on the
ground of undue influence, it must be shown that the influence ex-
erted on the mind of the testator was equivalent to moral coercion,
and constrained him, through fear, the desire of peace, or some
other feeling than affection, to do that which was against his will.^

§ 79. The question is not one of undue influence, for if so, there
are few wills which would not be put in peril. A testator is natu-

1 Eckert v. Flowry, 43 Penn. St. 46.

2 Hall V. Hall, 38 Ala. 131. Undue
influence must amount to a moral con-
straint, destroying free agency. Barnes
r. Barnes, 66 Me. 286 ; Breed v. Pratt,
18 Pick. 115 ; Shailer v. Bumstead, 99
Mass. 112 ; Comstock v. Hadlyme, 8
Conn. 261 ; Gardiner v. Gardiner, 34
N. Y. 155; Brick v. Brick, 66 N. Y.
144; Children's Aid Soc'y v. Love-
ridge, 70 N. Y. 387 ; Horn v. Pullman,
72 N. Y. 269 ; Kinne v. Johnson, 60
Barb. 69 ; Hazard v. Hefford, 2 Hun,
445 ; Snyder v. Sherman, 23 Hun, 139 ;
Seguine v. Seguine, 4 Abb. (N. Y.)
App. Dec. 191 ; Marvin v. Marvin, 3 id.
192 ; Burk's Will, 2 Redf. 239 ; Booth
V. Kitchen, 3 Redf. 52 ; Lynch v. Clem-
ents, 24 N. J. Eq. 431 ; Browne v. Mol-
liston, 3 Whart. 129 ; McMahon v. Ryan,
20 Penn. St. 329 ; Thompson v. Kyner,
65 Penn. St. 368; Tawney v. Long, 76
Penn. St. 106 ; Hopple's Est., 7 W. N.
C. 523; Chandler v. Ferris, 1 Harr.

(Del.) 454 ; Higgins v. Carlton, 28 Md.
115; Tyson v. Tyson, 37 Md. 567;
Griffith V. DiflfenderfiFer, 50 Md. 466 ;
Monroe v. Barclay, 17 0. St. 302 ; Rabb
V. Graham, 43 Ind. 1 ; Harrington r.
Stees, 82 111. 50 ; Allmon r. Pigg, id.
149 ; Sechrest v. Edwards, 4 Mete. (Ky.)
163 ; Marshall v. Flinn, 4 Jones (N. C.)
L. 199 ; Wright v. Howe, 7 Jones L.
412 ; Lee v. Lee, 71 N. C. 139 ; O'Neall
V. Farr, 1 Rich. 80 ; Harrel v. Harrel,
1 Duv. 203 ; Thompson r. Davitte, 59
Ga. 472 ; Leverett v. Carlisle, 19 Ala.
80 ; Pool V. Pool, 35 Ala. 12 ; Leeper v.
Taylor, 47 Ala. 221 ; Rogers v. Dia-
mond, 13 Ark. 474 ; McDaniel v. Cros-
by, 19 Ark. 533 ; Tobin r. Jenkins, 29
Ark. 151 ; Williams r. Goude, 1 Hagg.
577 ; Parfitt r. Lawless, L. R. 2 P. & D.
462 ; Purdon r. Longford, L. R. 11 Ir.
C. L. 269 ; Stultz v. Schaeffle, 18 Eng.
L. & Eq. 576. And it must be connected
with the document. Todd v. Fenton,
66 Ind. 25.

§ 80.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

rally more or less influenced by those about him. Selfishness may
lead them to attempt to influence him in their favor ; or
one of a feeling of chivalric generosity may induce those who

to^esist ^^® ^^ home to unduly promote the interests of the ab-
sent. Rich men, also, are beset by numerous applicants
for aid, some of whom are importunate, and often present their
claims unfairly. If wills were set aside because such influences
were applied, the privilege of testamentary disposition would be
seriously impaired. The question is, therefore, not whether there
were influences about the testator which, if not resisted, would un-
duly sway him, for there is no testator about whom there are no
such influences ; but whether the testator had capacity to resist
such influences. If he had not, then the will, supposing the influ-
ences to have been applied, must fail at least ^ro tanto}

§ 80. Mere mental debility, caused by sickness or extreme old

age, does not itself justify the conclusion that undue

weakness influence has been submitted to. " It is argued," said

prove'^uL Mullin, J., in a case in New York, in 1862,^ " that while

dueinflu- a man's intellect may not be so weak as to render him

ence. . ...

incapable of making a will, yet it may be in that feeble
state that he readily and easily becomes the victim of the improper
influences of such imprincipled and designing persons as see fit to
practise on him. The proposition is doubtless correct, but mere
weakness does not prove undue influence. There must be some
evidence of the influence, and of its improper exercise, to justify the
rejection of a will on that ground."

^ Glover v. Hayden, 4 Cush. 580 ; St. 46. Hence it must be shown that
Baldwin v. Parker, 99 Mass. 79 ; Hunt the undue influence took effect. See
V. Hunt, 116 Mass. 237 ; Davis v. Davis, Jarman on Wills, Randolph & Talcott's
123 Mass. 590 ; May v. Bradlee, 127 note, 733, and cases there cited ; Kin-
Mass. 414 ; Wait v. Breeze, 18 Hun, leside v. Harrison, 2 Phill. 449 ; Boyse
403 ; Hughes v. Murtha, 32 N. J. Eq. v. Rossborough, 6 H. L. C. 47 ; Com-
288; Wainwright's App., 89 Penn. St. stock v. Hadlyme, 8 Conn. 261; Roll-
220 ; Clark v. Stausbury, 49 Md. 346 ; wagen v. Rollwagen, 63 N. Y. 504 :
Pierce v. Pierce, 38 Mich. 412; Hub- Brick i-. Brick, 6Q N. Y. 144; Eckert
bard v. Hubbard, 7 Oregon, 42. v. Flowry, 43 Penn. St. 46 ; Leverett

2 Reynolds v. Root, 62 Barb. 250, at y. Carlisle, 19 Ala. 80.
p. 253 ; Eckert v. Flowry, 43 Penn.

WILLS. [§ 81.

VI. PRESUMPTIONS.

1. From act and surroundings.

§ 81. It must be remembered that the justice of testamentary
dispositions is to be determined from the testator's stand-
point, not from the standpoint of the adjudicating tribu- ^°n^nfa*^7°^
nal. Provisions which may strike us as very uniust, may indicate

"^ , . . incapacity.

have seemed just to the testator, and might seem just to
us if we were possessed of all the facts of which he was possessed.
Notions of justice also vary as much as do the conceptions of facts
to which these notions are applied. To one mind it may seem very
unjust to give a preference to an older son ; to another it would
appear that daughters should be preferred, as the most helpless ; to
another, bequests to collateral relatives may seem a matter of duty ;
to another it may appear a matter of duty to give largely to educa-
tional and religious institutions. The law, in reserving to all sane
persons the right of testamentary disposition, and in declining to
establish a universal compulsory rule for the disposition of property
after death, recognizes a variety of judgment among sane persons
as to the way their property should be distributed. That a will is
not the kind of will that the adjudicating tribunal would make, is
therefore no reason for setting it aside. On the other hand, it is
a sufficient reason for setting aside a will that it contains provisions
whose monstrosity can only be explained on the hypothesis of insan-
ity or of submission to undue influence.^ In cases not of so extreme
a type, inequality of disposition is not enough to warrant the
setting aside of a will on the supposition of undue influence; there

' See Parfitt v. Lawless, L. R. 2 P. & admissible to show the state of his

D. 462; Horn v. Pullman, 72 N. Y. mind, see 1 Redf. on Wills, oh. x. sec-

269 ; Cudney v. Cudney, 68 N. Y. 148 ; tion iii. The following additional au-

Booth V. Kitchen, 3 Redf. (N. Y.) 52 ; thorities may be referred to : May v.

Higgins V. Carlton, 28 Md. 115; Kevil Bradlee, 127 Mass. 414; Canada's App.,

V. Kevil, 2 Bush, 614 ; Carpenter v. Cal- 47 Conn. 450 ; GrifiSth v. Diflfenderflfer,

vert, 83 111. 62 ; Tingley v. Cowgill, 48 50 Md. 466 ; Dennis v. Weekes, 51 Ga.

Mo. 290; Thomas V. Stump, 62 Mo. 275; 24; Lucas t-. Carman, 13 Bush, 650;

Convey's Will, 52 Iowa, 197. But see Reynolds v. Adams, 90 111. 134; Todd

Fulton V. Andrews, L. R. 7 H. L. Cas. v. Fenton, 66 Ind. 25 ; Convey's Will,

448. Courts may go too far in the en- 52 Iowa, 197 ; Muller v. The Assoc, 5

deavor to stand in the testator's place. Mo. App. 390 ; Mooney v. Olsen, 22

That the testator's declarations are Kan. 69.

§ 82.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

must be independent proof that such influence has been applied.^
But always as one of the factors in determining a case,^ the gross
inequality of a will may be considered, and if undue influence
be shown aliunde, the disinheritance of those entitled by nature
to the testator's estate may be taken to be the eftect of that influ-
ence.^

§ 82. It has been already noticed that a will will not be set aside
Inference simply because the testator was subjected to influence,
from abuse even amounting to importunity, supposing that he had
tiai reia- capacity to resist this influence, and was not the victim
ip. ^^ coercion or fraud. If either coercion or fraud be
shown, the will must fall.,^ And when a party claiming under a
will is shown to have possessed, from confidential relations, undue
influence over a testator, such party has the burden on him of
showing, supposing that this influence was exerted for his own
benefit, that he acted fairly, and that the testator acted freely. It
is true that in a recent English case,^ where a priest, the confessor
and chaplain of the testatrix, was left all her property, and was
made executor, Lord Penzance, upon a rule nisi for a new trial
being argued, drew a distinction between the presumption in the
case of gifts inter vivos, in favor of parties standing in a certain
relation to the donor, and in the case of testamentary gifts in favor
of the same parties. In the first case, the presumption, he held, is
that these parties have used undue influence, and on them lies the
burden of proof, while a stranger is not required to show that the
donor was uninfluenced ; while in the second case the presumption
disappears against the parties standing in the confidential relation.

• Cudney v. Cudney, 68 N. Y. 148. Hun, 139. That any circumstances,

But see Fulton v. Andrews, L. R. 7 H. ho-wever slight, will be admitted, see

L. C. 448, contra. Clark v. Stansbury, 49 Md. 346 ;

2 Any circumstances may be consid- Mooney v. Olsen, 22 Kan. 69. And it

ered which lead to the inference of un- is said that wherever suspicious cir-

due influence. Barnes v. Barnes, 66 cumstances, pointing to undue influ-

Me. 286 ; Marvin v. Marvin, 3 Abb. ence, exist, it is due to the parties to

App. Dec. (N. y.) 192; Rutherford v. frame an issue for a jury. Reynolds v.

Morris, 77 111. 397 ; Cadwallader v. Root, 62 Barb. 250.

West, 48 Mo. 483. But the circum- » Clark v. Fisher, 1 Paige, 171.

stances must be such as to lead logically "• Bundy v. McKnight, 48 Ind. 502.

to that inference. Brick v. Brick, 66 ^ Parfitt v. Lawless, L. R. 2 P. & D.

N. Y. 144; Snyder v. Sherman, 23 462.
80

WILLS.

[§82

'' The natural influence," he said, " of the parent or guardian over
the child, or the husband over the wife, or the attorney over the
client, may lawfully be exerted to obtain a will or legacy, so long
as the testator thoroughly understands what he is doing and is a
free agent."^ In such cases the party benefited, he held, must
show, affirmatively, that the other party could have formed a free
and intelligent judgment in the matter.^ To the extent of allowing
the wife,^ husband, parent, or child to exert influence, the American
cases approve of this ruling. To persons standing in these relations
the estate of the testator should naturally descend, and so long as
the testator's mind is sufficiently balanced to remember the condi-
tion of the family and the demands of all upon him, there is no rule of
law to prevent the persuasion of relatives.* But in this country, gifts
by willi, as well as other gifts to guardians/ attorneys,^ physicians,^

1 Parfitt V. Lawless, ut supra, p. 470.

2 See Jarman, by Randolph & Tal-
cott, 144.

3 Supra, § 77. Illicit cohabitation is
not enough of itself to raise a pre-
sumption of undue influence. Rudy v.
Ulrich, 69 Penn. St. 177 ; Wainwright's
App., 89 Penn. St. 220. But it may be
taken into consideration with other
circumstances and produce undue in-
fluence. Dean v. Negley, 41 Penn.
St. 317 ; Main v. Ryder, 84 Penn. St.
217 ; Kessinger v. Kessinger, 37 Ind.
341.

^ The reliance of a mother upon a
daughter for the management of her
pecuniary and domestic affairs is no
ground for imputation of fraud by the
daughter. To imply fraud from filial
virtue would be monstrous. Bleecker
V. Lynch, 1 Bradf. 458. But it has
been held that the relation of parent
and child is proper to be taken into
consideration by the jury. Gaither v.
Gaither, 20 Ga. 709. The fact that the
children who were present while the
will was executed in the absence of the
plaintiff were the principal benefici-
aries cannot be held to raise a pre-
VOL. I. — 6

sumption of undue influence. Bundy
V. McKnight, 48 Ind. 502. See Tingley
V. Cowgill, 48 Mo. 291 ; Coit v.
Patchen, 77 N. Y. 533.

5 That such gifts are void, see Breed
V. Pratt, 18 Pick. 115 ; Garvin v. Wil-
liams, 44 Mo. 465 ; Meek v. Perry, 36
Miss. 190; but that they only excite
suspicion, Daniel v. Hill, 52 Ala. 430.

6 St. Leger's App., 34 Conn. 450;
Wilson V. Moran, 3 Bradf. 172 ; Boyd
V. Boyd, 66 Penn. St. 283 ; Riddell v.
.Johnson, 26 Graft. 152. Sed contra,
Griffith V. Diffenderffer, 50 Md. 466,
which follows Parfit v. Lawless. There
is no presumption against an agent.
Lee V. Lee, 71 N. C. 139. Contra,
where the agent was principal devisee
and wrote the will himself, Harvey v.
Sullens, 46 Mo. 147. See Wright v.
Howe, 7 .Jones L. 412.

7 Crispell v. Dubois, 4 Barb. 393 ;
Colhoun V. Jones, 2 Redf. (N. Y.) 34;
Cadwallader v. West, 48 Mo. 483. In
England, prior to Lord Penzance's
ruling, several cases disapproved of
large bequests to medical advisors, and
held that the burden of proof would
be thrown on those to whom thev

§ 83.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

and spiritual advisers,^ will be most carefully scrutinized by the
courts, and will raise an inference of undue influence which it will
be relevant to support by any pertinent corroborative evidence.
And in general, when the executor of the will, or the party by
whom it was written or suggested, is a devisee to a large extent,
though not a relative, the onus will lie heavily upon him to main-
tain the will.^ The presumption will, of coarse, depend upon the
amount of the legacy. The result, then, of the cases, and the better
view of the principles, may be taken to be as follows : No presump-
tion of undue influence can be justly formed from the fact, by itself,
that the testator has disinherited his relatives. But such inequality
of distribution is an important factor in the case, and when it ap-
pears that the party to whom large benefits under the will are to go
is one who, though not a relative, stood to the testator in a rela-
tion of trust and confidence, we are entitled to require proof that
that confidence has not been abused. Stronger proof of fairness
and of intelligent freedom on the part of the testator will be exacted
when the beneficiary is a stranger in blood, than when he is a rela-
tive.^ And in cases where the beneficiary is not a relative " stricter
proof will be required of the testator's capacity, though not as to
his knowledge of the contents of the will."*

§ 83. We are therefore to conclude that the inference from the
contents of a will, unless in those extreme cases in which
from con- the will itself is so preposterous as to exclude the hypothe-
ccmciusive ^'^^ ^^ Sanity, is not by itself sufiicient to determine the
issue of devisavit vel non. At the same time a will mak-
ing a just distribution of an estate will be held per se strong evi-
dence of disposing capacity,^ while one turning the testator's prop-
were given. 1 .Jarm. Wills, 5th Am. house v. Godwin, 17 Barb. 236 ; Lee v.
ed., by Bigelow, *35-36, and notes. Dill, 11 Abb. Pr. 214; Cuthbertson's
See the case of Audenried's App., 89 App., Sup. Ct. of Pa. 1881, Central Law
Penn. St. 114, reported 33 Am. Rep. Journal, 1881, p. 352; Duffield v.
731. Robeson, 2 Harr. (Del.) 384; Clark

' St. Leger's App., 34Conn. 434. See v. Stansbury, 49 Md. 346; Harvey v.
Drake's App., 45 Conn. 9, and supra, § Sullens, 46 Mo. 147.
77. For a case where a bequest to a * Supra, § 79.

hospital was avoided, see Muller w. * 1 Jarm. Wills, 5th Am. ed. ; Bige-
The Assoc, 5 Mo. App. 390. low, *35, Randolph & Talcott, p. 63.

2 Paske V. Ollatt, 2 Phill. 323 : Dur- 5 Nichols v. Binns, 1 Sw. & Tr. 239 ;
ling V. Loveland, 2 Curt. 225 ; New- Bannatyne v. Bannatyne, 2 Rob. 475 ;

WILLS. [§ 84.

erty into an unnatural channel affords, though not a direct presump-
tion to the contrary, at least a circumstance of some suspicion,
proper to be put before a jury in connection with other facts, as
tending to determine the testator's capacity.^ This is broadly stated
by Sir John Nicholl, in a case^ where he declares, that, where
a will is traced into the hands of a testator whose sanity is fairly
impeached, but of whose sanity or insanity at the time of doing or
performing some act with relation to the will there is no direct evi-
dence, the agent is to be inferred rational, or the contrary, from
the character of the act.^

§ 84. But, while the apparent inj[ustice of a testator to members
of his family is a circumstance to be taken into considera-
tion in examining the question of liis soundness of mind not neces-
at the time of making a disposition of his property by yaiilf ^^
will, it must not be forgotten that a man has a right by
law to make whatever disposition of his property he chooses, how-
ever absurd or unjust.*

Thus, in a case in 1859 in New Jersey, an issue was raised as to
the sanity of a testator at the time he made his Avill under which
the defendants claimed title, and in his opinion Judge Whelpley
said: "If he had capacity to make a will, that capacity was suffi-
cient to enable him to make any will, no matter how unjust or un-
reasonable its provisions may seem to others. A testator has a
right to make an unreasonable, unjust, injudicious will, and his
neighbors have no right, sitting as a jury, to alter the disposition
of his property, simply because they think he did not do justice to
his family connections. Unless the will on its face carries clear

supra, § 21 ; Clarke v. Fisher, 1 Paige, will in half under circumstances strong-

171 ; Thompson v. Kyner, 65 Penn. St. ly indicating insanity. The will was

368 ; Stevens v. Vancleve, 4 Wash. C. admitted to probate.

C. R, 262 ; Harris v. Betson, 28 N. J. ^ Sf,e generally 1 Jarman on Wills

Eq. 211 ; Young v. Earner, 27 Gratt. (5th Am. ed.) chap. iii. and notes,

96 ; Means v. Means, 5 Strobh. 167 ; and supra, § 61.

Couch V. Couch, 7 Ala. 519 ; Elliott's * Gamble v. Gamble, 39 Barb. 273.

Will, 3 J. J. Marsh. 340 ; Weir's Will, See also Trumbull v. Gibbons, 22 N. J.

9 Dana, 434. L. 117 ; Gleespin in re, 26 N. J. Eq. 323 ;

' See supra, §§ 82-83. Roberts v. Wintermute v. Wilson, 28 N. J. Eq.

Trawick, 13 Ala. 68. 437 ; Rutherford v. Morris, 77 111.

2 Scruby i'. Fordham, 1 Add. 90. 397 ; Higgins v. Carlton, 28 Md. 115 ;

This was a case where a party tore his Coleman v. Robertson, 17 Ala. 84.

§ 86.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

marks of being the product of a diseased mind, its injustice, its

unreasonableness, ought not to be the foundation of a verdict against

ifc."i

§ 85. Erskine, J., in the case of Harwood v. Baker,^ where a will

^. . had been executed in favor of a second wife, to the ex-

Disposing ^ _ _ _ '

mind free clusion of other relatives, the testator being in a state of
weakened capacity, rendering him incapable of exertion
unless roused, said: " Their lordships are of the opinion, that, in
order to constitute a sound disposing mind, a testator must not only
be able to understand that he has, by his will, given the whole of
his property to one object of his regard, but he must also have ca-
pacity to comprehend the extent of his property, and the nature of
the claims of others whom, by his will, he is excluding from all
participation in that property, and that the protection of the law is
in no cases more needed than it is in those where the mind has been
too much enfeebled to comprehend more objects than one, and more
especially when that object may be so forced upon the attention of
the invalid as to shut out all others that might require considera-
tion. And then — for the question which their lordships propose to
decide in this case is, not whether Mr. Baker knew when he exe-
cuted this will that he was giving all the property to his wife, and
excluding all his other relations from any share in it, but whether
he was at that time capable of recollecting who those relations were,
of understanding their respective claims upon his regard and bounty,
and deliberately forming an intelligent purpose of excluding them
from any share of his property — if he had not the capacity required,
the propriety of the disposition made by the will is a matter of no
importance. If he had it, the injustice of the exclusion would not
affect the validity of the disposition, though the justice or injustice
of the disposition might cast down some light upon the question as
to his capacity."

§ 86. Eccentric and even whimsical clauses in a will do not ope-
rate, per se, to annul it, the testator's capacity being
clauses do Otherwise indisputed. Thus, in England, and by Sir
not mvah- jjerbcrt Jenner Fust, it was held to be not destructive of

date per se. '

the hypothesis of sanity, that the testator should have
directed that his executors should "cause some parts of his bowels

1 Boylan i-. Meeker, 4 Dutclier, 274, 2 3 Moore P. C. 282.
84

WILLS.

[§86.

to be converted into fiddle-strings — that others should be sublimed
into smelling salts, and that the remainder of. his body should be
vitrified into lenses for optical purposes." The court, in admitting
the will to probate, -was governed by evidence that the testator had
been marked by great business shrewdness, and that he was regarded
by his associates as a man of indisputable capacity. His own ex-
planation of this extraordinary provision, given in a letter attached
to the will, was that "the world may think this to be done in a
spirit of singularity or whim, but I have a mortal aversion to funeral
pomp, and I wish my body to be converted into purposes useful to
mankind."^

' Morgan v. Boys, Taylor, Med. Jur.
657, cited 1 Redfield on Wills, chap,
xiv. § 11. Judge Redfield thinks that
* ' this must be regarded as a most
charitable view of the testator's men-
tal capacity, and which an American
jury would not readily be induced to
adopt." See, also. Bird v. Bird, 2
Hagg. 142 ; Kinleside v. Harrison, 2
Phill. 449 ; Griffiths v. Robins, 3 Madd.
191 ; Horn v. Pullman, 72 N. Y. 269 ;
Crolius V. Stark, 64 Barb. 112; Reyn-
olds V. Root, 62 Barb. 250 ; Creely v.
Ostrander, 3 Bradf. 107 ; Browne v.
Malliston, 3 Whart. (Pa.) 129; An-
dress v. Weller, 3 N. .J. Eq. 604 ; Sloan
V. Maxwell, 3 N. J. Eq. 563 ; Higgins
V. Carlton, 28 Md. 115 ; Kirkwood v.
Gordon, 7 Rich. 474 ; Potts v. House, 6
Ga. 324. And see supra, § 44.

That mere eccentricity in a will is
compatible with full testamentary ca-
pacity is illustrated by the fact that
eccentric provisions are sometimes
found in the wills of vaew whose sanity
no one would doubt. Thus Mr. Hume,
the historian, left in his will to his old
friend Mr. John Home, of Kilduff (who
disliked port, and used to contend that
" Home" was the correct spelling both
for his name and Hume's), " ten dozen
of my old claret at his choice, and one
single bottle of that other liquor called
port. I also leave to him six dozen of

port, provided that he attests tinder
his hand, signed John Hume, that he
has himself alone finished that bottle
at two sittings. By this concession he
will at once terminate the only two
difl'erences that ever arose between us
concerning temporal affairs."

Jeremy Bentham gave directions in
his will that his body should be em-
balmed and kept stuffed in a chair in
one of his old apartments.

The London Illustrated News, in
1878, gave a series of articles on uncon-
tested eccentric wills, among which
may be noticed the following : —

Mr. Henry Budd, by his will, proved
in February, 1862, declares "that in
case my son Edward shall wear mous-
taches, then the devise hereinbefore
contained in favor of him, his ap-
pointees, heirs, and assigns, of my said
estate called Pepperpark, shall be void;
and I devise the same estate to my son
William, his appointees, heirs, and
assigns. And in case my said son Wil-
liam shall wear moustaches, then the
devise hereinbefore contained in favor
of him, his appointees, heirs, and as-
signs, of my estate called Twickenham-
park, shall be void, and I devise the
said estate to my son Edward, his ap-
pointees, heirs, and assigns."

Mr. Fleming, an aiJi:>raiser and up-
holsterer of Pimlico, by his will, proved

§ 87.] MENTAL UNSOUXDXESS IN ITS LEGAL RELATIONS.

2. From old age.
§ 87. Testamentary incapacity does not necessarily presuppose
Old age the existence of insanity, in its technical sense. "Weak-
does not j^ggg Qf intellect from extreme old asie, whether arisino;

per se inca- = ■ o

pacitate. from great bodily infirmity, or from intemperance, when

in April, 1869, gives to the diflFerent
men in his employ lOZ. each; "but to
those who persist in wearing the mous-
tache, 51. only." Mr. James Robbins,
whose will was proved in October,
1864, declared " that, in the event of
my dear wife not complying with my
request to wear a widow's cap after my
decease, and in the event of her mar-
rying again, that then and in both
cases the annuity which shall he pay-
able to her out of my estate shall be
201. per annum, and not 30Z." Mr.
Edward Concaueu. in a will proved in
May, 1868, says: "And I hereby bind
my said wife that she do not after my
decease offend artistic taste, or blazon
the sacred feelings of her sweet and
gentle nature, by the exhibition of a
widow's cap." A very peculiar obli-
gation was imposed on two of his lega-
tees by Sir James South, the astrono-
mer, whose will, with several codicils,
was proved in 1868. By his will he
gave a pocket chronometer each to the
Earl of Shaftesbury, the Earl of Rosse,
and Mr. Archibald John Stevens ; and
in one of his codicils he states they
were so given to theia in the fullest
confidence that they would respectively
use and wear them in the same man-
ner as " I am in the habit of wearing
my chronometer, namely, in my pan-
taloon pocket, properly so called' ' — a
sort of premium to try and perpetuate
the old fashion of carrying a watch in
the fob pocket, in vogue when Sir James
South was a young man.

The Countess Dowager of Sandwich,
in her will, written by herself at the
age of eighty, proved in November,

1862, expresses her "wish to be buried
decently and quietly — ^no undertaker's
frauds or cheating, no scarfs, hatbands,
or nonsense. " Mrs. Kitty Jenkyn Packe
Reading, although evidently possessed
of sufficient means, appears by her will,
proved in April, 1870, to have been very
anxious that one part at least of the ex-
penses attending her funeral should be
kept as low as possible. After saying
she is to be placed first in a leaden and
then in a wooden coffin, she provides
that " if I die away from Branksome,
I wish my remams, after being duly
placed in the proper coffins, to be in-
closed in a plain deal box so that no
one may know the contents, and con-
veyed by a goods train to Poole, which
will cost no more than any other pack-
age of the same weight ; from Poole
station said box to be conveyed in a
cart to Branksome Tower." Mr. Wil-
liam Kensett, by his will, proved in
October, 1855, recites that, "believing
in the impolicy of interring the dead
amid the living, and as an example to
others, I give my body, four days after
death, to the directors of the Imperial
Gas Company, London, to be placed in
one of their retorts and consumed to
ashes, and that they will be paid £10
by my executors for the trouble this
act will impose on them in so doing.
Should a defence of fanaticism and su-
perstition prevent their granting this,
my request, then my executors must
submit to have my remains buried, in
the plainest manner possible, in my
family grave at St. John's-wood Ceme-
tery, to assist in poisoning the living
in that neighborhood."

WILLS. [§88.

it disqualifies the testator from knowing or appreciating the na-
ture, effect, or consequences of the act he is engaged in, works
a similar disability.^ Great caution, indeed, should be used, lest
the existence of extreme old age should lead the medical witness to
presume consequent imbecility. Against such a sequence the policy
of the law and the interests of humanity unite in protesting. " It
is one of the painful consequences of extreme old age," beauti-
fully said Chancellor Kent, in one of his earlier judgments, "that
it ceases to excite interest, and is apt to be left solitary and neg-
lected. The control which the law still gives to a man over the
disposal of his property, is one of the most efficient means which he
has in protracted life to command the attention due his infirmities.
The will of such an aged man ought to be regarded with great ten-
derness, when it appears not to have been procured by fraudulent
acts, but contains those very dispositions which the circumstances
of his situation and the course of the natural affections dictated."^

§ 88. "Grreat age, alone," adds a very enlightened and liumane
jurist, Judge Bradford, " does not constitute testamentary g^^^^i^
disqualification ; but, on the contrary, it calls for protec- rather be
tion and aid to further its wishes, when a mind capable
of acting rationally, and a memory sufficient in essentials, are shown
to have existed, and the last will is in consonance with definite and
long-settled intentions, is not unreasonable in its provisions, and has
been executed with fairness. "^ Nor, was it ruled by the same
learned judge, does loss of memory incapacitate, unless it be total,
or appertains to things essential.*

In connection with these passages, the remarks of Lord Cockburn,
C. J., in the case of Banks v. Goodfellow,^ are worthy of attention.
" In these cases," he says, " it is admitted on all hands that though
mental power may be reduced below the ordinary standard, yet, if
there be sufficient intelligence to understand and appreciate the tes-
tamentary act in its different bearings, the power to make a will
remains. It is enough if , to use the words of Sir Edward Williams,

I Leech v. Leech, 21 Penn. St. 67. * Van Alst v. Hunter, 5 Johns. Ch.

Seein this connection Dr. Day's " Prac- 148. See pos<, § 104.

tical Treatise on the Domestic Manage- * Maverick v. Reynokls, 2 Bradf. 360.
mentof the Most Important Diseases of * Bleecker v. Lynch, 1 Bradf. 360.
Advanced Life." T. & W. Boome, 5 l. R. 5 Q. B. 549.
London, 1849.

§ 90.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

in his work on ' Executors,' ' the mental faculties retain sufficient
strength fully to comprehend the testamentary act about to be done.'
' Non sani tantum,' says Voet, in his ' Commentary on the Pandects,'
founding himself on the language of the code, ' sed et in agone mor-
tis positi, seminece ac balbutiente lingu^ voluntatem promentes,
recte testamentas condunt, si modo mente adhuc valeant.' "

§ 89. In harmony with these views, wills have been sustained
when the testator was eisrhty years of a^e, very deaf.

So of par- , . 11 T ,•■,,, / ^ , I

tiaiiossof and partially bund ;* where he was of the same age, and
■^yag afflicted with a palsy, so that be could neither write
nor feed himself;^ and when he was between ninety and a hundred^
and greatly debilitated.^ It is true that when in old age the tes-
tator is shown to have been imposed vipon or coerced, the will will
be set aside ; but this rather tends to strengthen than invade the
sanctity of the testamentary privilege.^

§ 90. The same view is to be taken of the bodily infirmities pecu-
liar to old age. If they produce mental impotence, of

And bodily ,, ° , . ■ ^ -n. , •

infirmities, course they work incapacity.^ But their mere existence

will not be sufficient to produce this result.^ As long as

» Lowe V. Williamson, 2 N. J. Eq. 82.
2 Reed's Will, 2 B. Mon. 79.

* Van Alst i\ Hunter, 5 Johns. Ch.
148. See Collins v. Townley, 21 N. J.
Eq. 353.

* 1 Jarm. on Wills (5th. Am. ed.),
chap. iii.

5 Harvey v. Sullens, 46 Mo. 147.

6 Vanauken ex parte, 10 N. J. Eq.
186. Thus, mere impairment of intel-
lect is not unsoundness of mind. Den
V. Johnson, 4 N. J. L. 454 ; Collins v.
Townley, 21 N. J. Eq. 353; Winter-
mute V. Wilson, 28 N. J. Eq. 437 ;
Jamison v. Jamison, 3 Houst. (Del.)
108 ; Watson v. Watson, 2 B. Mon. 74 ;
Reed's Will, 2 B. Mon. 79 ; Rutherford
V. Morris, 77 111. 397. Nor is failure of
memory, Reynolds v. Root, 62 Barb.
250 ; Eddy's case, 32 N. J. Eq. 701 ;
Lowder v. Lowder, 58 Ind. 538 ; though
attended by slight delusions. Children's
Aid. Soc. V. Loveridge, 70 N. Y. 387.
But old age and sickness are proper

circumstances to be considered in de-
termining capacity, Willemin v. Dunn,
93 111. 511 ; and when a grantor is in
such a condition, and is ignorant, it is.
the duty of the officer authenticating
the execution of his deed to explain its
contents to him, Lyons v. Van Riper, 28
N. J. Eq. 437. Where such was the
condition of a testator, it has been held
that it must be affirmatively shown
that he knew the contents of the will,
Wisener v. Maupin, 58 Tenn. 342 ; and
it has been held that the burden is on
those propounding the will of an aged
person who is of impaired mind and
body. Pliipps v. Van Kleeck, 22 Hun,
541 ; Ames' Will, 51 Iowa, 596. See
Shakespeare v. Markham,72 N. Y. 400.
No person ought to subscribe as witness
to a will unless he knows from the tes-
tator himself that he undei'stands what
he is doing. Scribner v. Crane, 2 Paige,
147, Walworth, C. A will has been set
aside in submission to the opinions of

WILLS. [§ 92.

it can be done consistently with public justice, the policy of the law
requires that the protection to old age, afforded by the right of tes-
tamentary disposal, should continue unimpaired ; and it is permitted
to cease only when actual wrong would be done to third parties by
its continuance, or where by exposing the possessor to undue so-
licitation or to imposition, it proves an annoyance rather than an
advantage. Nor is this rule without its foundation in the results of
observation. The truth that the mind is not necessarily affected by
bodily infirmity, is illustrated by numerous cases, one of the most
striking of which is that of Dugald Stewart, who, when unable from
disease to take general exercise, to use his right hand, or to articu-
late distinctly, composed the third and fourth volumes of his Phi-
losophy of the Human Mind.

§ 91. In a case in 1869 in Illinois, where a bill was filed to set
aside a deed made by a man eighty-seven years old to his
son, on the ground of mental imbecility, the court held weakness
that in order to entitle the plaintiffs to the relief sought, Xown to
thev must show such a degree of mental weakness as to incapaci-

•^ ^ . tate.

render the party incapable of understanding and protect-
ing his own interests. The circumstance that the mental powers
have been somewhat impaired by age is not sufficient, if the con-
tracting party still retains a full comprehension of the meaning,
design, and effect of his acts.^

§ 92. In an English case reported by Mr. Browne,^ the evidence
was that Andrew Harrison made a will and several codi-
cils ; the will and the first four codicils were not opposed, ^^^^^ °^'
the other codicils were contested. The contested codicils
were set up by Mr. Kinleside, who was one of the executors and
the residuary legatee named in the will, and they were opposed by
Mr. Benjamin Harrison, whose appointment as an executor and the
benefits he derived under the will were revoked by these codicils.
All these instruments were regularly executed, and the grounds of
opposition were, that the deceased labored under dementia (mental

the subscribing witnesses and the fact ' Lindsey v. Lindsey, 50 111. 79.
that some time after the testator forgot * Kinleside v. Harrison, 2 Phill. 449.

his children. Dumond v. Kiff, 7 Lans. See Browne's Med. Jur., London, 1871,

(N. Y.) 465. See, generally, 1 Jarm. p. 212.
on Wills, 5th Am. ed., chap. iii. ; 1
Redf. Wills, chap. iii. section xii.

§ 92.] MENTAL UNSOUNDNESS IN ITS LEQAL RELATIONS.

imbecility), so as to be incapable of any testamentary act whatever;
and with regard to two of the codicils, it was asserted that they
were obtained from the deceased by fraud, circumvention, and im-
portunity.

It was proved that the testator was eighty-six or eighty-eight
when the contested codicils were made. It was also proved that the
deceased was liable to certain nervous attacks, and it was admitted
that during these attacks he was incapable of any rational act. The
deceased was admitted to be deaf, to be nervous and low-spirited
when anything affected him. His eyesight was perfect, his bodily
powers were not much impaired. It was proved that he could run
up stairs. These points were not controverted.

Thirteen witnesses were examined to prove the incapacity of the
testator. Most of them spoke of a failure of memory, of a defective
power of recognizing people, of his being regarded by those about
him as a person of weak mind, and of his appearing to be " lost."
But their evidence brought out the fact that he was in many ways
vigorous in mind and body, and that he was able to transact business
without assistance. They were strongly of opinion that the testator
was of unsound mind, and incapable at the time the contested codi-
cils were made of making a valid testamentary instrument.

The evidence of Mr. Boodle, the solicitor, who was concerned in
the execution of the codicils, was that at the time of their execution
Mr. Boodle, although he thought the deceased's memory defective,
did not regard him as permanently incapable ; and, when taken in
connection with the evidence of other witnesses, led to the conclu-
sion that the testator did not labor under such mental defect as to
render him incapable of a valid testamentary act. It was satisfac.
torily proved that he was able to settle bills, to draw his own drafts,
to write, letters, to play cards, to go about by himself, and that he
comprehended the state of his affairs ; and many of the witnesses
summoned in support of the codicils asserted that they regarded him
as a person of sound mind, whose memory and understanding were
unimpaired.

With regard to this part of the case the learned judge says:
" Now, these accounts, with the bills regularly paid and indorsed,
these drafts drawn, these counterchecks registered and marked with
the date and sum for which they were drawn, the corresponding en-
tries in the book of expenditure, prove mind and understanding, and
90

WILLS. [§ 95.

thought, judgment, and reflection very strongly, and, in a person of

his great age, of a most extraordinary and unusual degree

It is proved to ray satisfaction that he possessed his mental faculties
in an extraordinary degree, considering his great age, and that he
had a testamentary capacity quite equal to £i> testamentary act of no
very complicated nature."

§ 98, Sir J. Wilde (now Lord Penzance), in pronouncing judg-
ment in the case of West v. Sylvester, against a will pro-
pounded as that of an aged lady, said, " At the time she l^^fufg^of
executed the will of October, 1863, although for many memory

' . . ° '' invalidates.

purposes she might be said to be m her right senses, she

was, nevertheless, suffering from that failure and decrepitude of

memory which prevented her having present to her mind the proper

objects of her bounty, and selecting those she wished to partake

of it." On this ground the will was set aside.

§ 94. It is also to be observed that a party in extreme old age

may fall under the subjection of relatives or attendants

,.,.„„, c ^^ -^Qcl senile

to such an extent as to deprive him ot ireedom ot voli- dread of

tion. His mind " may be quite intelligent, his under-
standing of business clear, his competency to converse upon and
transact business undoubted, and his bodily strength good ; but
there may grow upon him a fear and dread of relatives or servants
who may have surrounded him, and on whom he may have become
so perfectly dependent that his nervous system is wholly overcome,
so that he has no power to exert his mind in opposition to their
wishes, or to resist their importunities. His mind is enslaved by
his fear and a feeling of helplessness, so that, to that extent, and
in matters in which he may be moved by them, he really is facile
and imbicile. This state of things seems to be easily brought on
in old age, when the faculties are otherwise entire, and the bodily
strength considerable."^

3. From physical causes.

\^See this question viewed psychologically, infra, §§ 461-469.]

§ 95. In cases of blindness, or of deaf-and-dumbness, the party
oflfering a will has the burden of proving that the testator knew the

> See Taylor's Med. Jur. 2d ed. (1873), ii. 558.

§ 96.] MEXTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

Corape- contents of the will, and was not imposed upon.^ It has

in"cifses o/ ^®®^ questioned whether a person who was both blind and

deaf-mutes, (Jeaf and dumb, is competent to execute any instrument

ledge of in- requiring consideration,^ though, as will be seen,^ this

strument , • i i i i i

must be cannot now be considered to be the law, when to that un-
o^vn. fortunate class methods of communication have been

opened which may fit them to sustain and appreciate the relations
of society.

§ 96. " AYe regard this class of persons," says Judge Redfield,
Question ^^^ ^^® excellent treatise on wills/ " as standing precisely
depends on like all others in that respect (testamentai'y capacity"),

education. .,,.. j sr j y

wrth this difference, perhaps, that, where it appears that
the testator was a deaf-mute, it will impose upon those who claim
to establish the will the burden of showing, in the first instance,
that the testator made the instrument understandingly." But even
this qualification, the same learned author seems to think, vanishes,
" in the case of educated mutes, who are capable of communicating
by writing." " The fact that the testator wrote the will might
fairly be regarded as sufficient evidence, prima facie at least, that
he made it understandingly." And the deaf and dumb testator
may communicate his intention to execute by signs,^ or by writing.^
Whatever may once have been thought, it is now clear that even a
concurrence of blindness with deafness and dumbness, necessarily
works no incapacity.'^

The question depends upon the education of the party afilicted
with this calamity. Under recent improved culture deaf-mutes

' 1 Jarm. Wills, 5tlx Am. ed. cli. iii. deaf, and dumb. See Harrison v.

2 Ibid. Rowan, 3 Wash. C.' C. R. 580 ; Lewis

3 Infra, § 96. v. Lewis, 6 S. & R. (Pa.) 489 ; Day c.
* I. ch. iii. § 5. Day, 3 N. J. Eq. 444 ; Davis v. Rogers,

5 Owston in re, 2 Sw. & Tr. 461; 1 Houst. (Del.) 44; Wampler v.
Geale in re, 3 Sw. & Tr. 431. Wampler, 9 Md. 540 ; Clifton v. Mur-

6 Moore u. Moore, 2 Bradf. 265. See ray, 7 Ga. 564; Martin v. Mitchell,
Christmas v. Mitchell, 3 Ired. Ch. 535. 28 Ga. 382 ; Ray v. Hill, 3 Strobh. 297 ;

- Weir V. Fitzgerald, 2 Bradf. 42. See Guthrie v. Price, 23 Ark. 396 ; Bar-
Oliver V. Berry, 53 Me. 206 ; Reynolds ton v. Robins, 3 Phill. 455 ; Long-
i>. Reynolds, 1 Spear, 253. But, as with champ v. Fish, 2 Bos. & Pul. N. R.
deaf-mutes, it must be shown that 415 ; EdAvards v. Fincham, 3 Curt. 63 ;
the testator understood the contents of Mitchell v. Thomas, 6 Moore P. C. C.
the will ; a fortiori, when he is blind, 137.

WILLS. [§ 98.

are enabled to receive instruction freely, and freely to commu-
nicate their views ; and, when this is the case, their testamentary
capacity cannot be questioned on the ground that they are deaf-

^^^^^' ^ Deaf-mutes

& 97. If compos mentis, deaf and dumb persons can ™ay marry

•' . -^ '■ when corn-

contract matrimony.^ pos mentis.

§ 98. Whether a deaf-and-dumb person is cajjax negotii Question is

is, under the instruction of the court, a question to be ?^].V°''

determined by the conditions of the concrete case.^

' The earlier cases will be found in ^ ^g to pleading, see R. v. Pritchard,

a learned essay by Dr. H. P. Peet, in 7 C. & P. 303 ; R. v. Whitfield, 3 C. &

the 13tli vol. of the Am. Journ. of In- K. 121 ; Wh Cr. PI. & Pr. § 417 ; and

sanity. See Oliver v. Berry, 53 Me. see Ordronaux Jud. Aspects of Insan.

206. 225. For other points in this connec-

2 Swinburne on Spousals, cited 13 tion see supra, § 461.
Am. Journ. Insan. 127.

§ 100.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

CHAPTER III.

COMMISSIONS OF LUNACY.

Process to determine lunacy by a com-
mission, § 99.

General manner of issuing, § 100.

Issue before a commission is general
incompetency, § 101.

Opinions of witnesses admissible, § 102.

Ability to manage business the test of
competency, § 103.

But mere old age does not incapacitate,
§ 104.

Harmless lunatic confined when neces-
sary, § 104 a.

What constitutes habitual drunkard,
§105.

Extravagance and profligacy need not
constitute incompetency, § 106.

Proceedings may be set aside if irreg-
ular or inequitable, § 107.

§ 99. In most of the United States, as in England, process exists
p ocess to ^y which, when a party is incapable of the management

determine of his ostatc, whether from mental unsoundness or from
lunacy by a . .

commis- habitual drunkenness, a committee may be appointed to
^^°^' whom the custody of his property is committed. It would

be out of place to set forth here the statutes by which this process
is defined and settled ; it is enough now to notice the general
scheme of practice which exists in England, and which has been,
with the exceptions of only slight alterations of detail, adopted in
this country.^

§ 100. AVhen there is reason to believe that a party, from un-
soundness of mind or habitual drunkenness, is incapable
manner of of managing his aifairs, a petition lies, generally from
issumg. g^^y pgj.sQj^ interested in his person or estate, for the
issuing of a commission.^ Upon the reception of the

' See Ordronaux's .Tudic. Aspects of
lusan. (1877) 2 et seq.

2 The petition must be sustained
by affidavits. Persse ex parte, 1 Moll.
219 ; Lincoln ex parte, 1 Brewst. 392.
For an interesting case where an East
Indian, temporarily insane in New

York, was sent home to his family
under the charge of a committee, the
court having refused to entrust him to
the care of his father-in-law, who came
from India to seek him, see Colah in
re, 3 Daly, 529 ; S. C, 11 Abb. Pr. N.
S. 209. The court rested the inherent

COMMISSIONS OF LUNACY.

[§ 101.

petition, the court directs a commission to issue to one or more
persons — generally required to be learned in the law — directing the
inquiry by commissioner and jury, as to the facts of the petition.
The commissioner, being thus authorized, directs a precept to the
sheriff, commanding him to summon a jury, who, when they meet,
hear testimony — on both sides if desired — on the matter submitted
to them, and, after being charged by the commissioner as to the
law of the case, return a finding as to whether, from the lunacy or
habitual drunkenness complained of, the respondent is incapable of
managing his estate.^ Should the finding be in the afiirmative, the
court will appoint a committee, who will take charge of the respond-
ent's estate,^ subject, however, to the absolute right^ of the
respondent to traverse the finding, i. e , to put in a formal denial of
it, in which case the question is determined before a court and jury,
in the same way as any other contested fact. Whether the alleged
lunatic really is capable of volition as to a traverse, and desires
that a traverse should be entered, will be determined, it seems, by
the chancellor himself, by personal examination or otherwise.*

§ 101. It will be seen that the point at issue under a commission
of lunacy or habitual drunkenness, is the general^ and issue before
not the partial or pai-ticular ^ incompetency of the party, siou"i™''
who is the subject of the inquiry.^ It is a matter of general in-

•^ 1 ./ ^ compe-

some moment, also, that the fullest opportunity of exami- tency.

jurisdiction of the state over lunatics
and persons of unsound mind within
its limits, whether citizens or aliens,
on two grounds : First, the duty to pro-
tect the community from the acts of
those who are not under the guidance
of reason ; and, secondly, its duty to
protect them as a class incapable of pro-
tecting themselves, which duty has its
foundation in the reciprocal obligation
of allegiance and protection, and which
extends to aliens and strangers who
owe a temporary and local allegiance.
That the petition is necessary to juris-
diction, see Payn in re, 8 How. Pr.
220 ; Mason in re, 1 Barb. 436.

' Personal service on the alleged
lunatic is always necessary. Dozier,

in re, 4 Baxt. (Tenn.) 81. Subsequent
proceedings, in the absence of this,
would be void. Moody v. Bibb, 50
Ala. 245 ; Molton v. Henderson, 62 Ala.
426.

2 The New York practice is given in
Ordronaux's Judic. Aspects of Insan.
(1877) 14. See, as to the practice in re-
gard to the appointment and removal of
committees. Black's Est., 18 Penn. St.
434; Hulings v. Laird, 21 Penn. St.
265.

' Gumming in re, 11 Eng. L. & Eq.
202 ; 1 De G. M. & G. 537.

■» Ibid.

^ Watson's Interdiction, 31 La. Ann.
757.

§ 101.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

nation be given. When a particular instrument is sought to be
vacated, or a particular crime to be excused, the testimony of the
medical witness is necessarily drawn from but casual observation,
made in some cases at a time when he had no reason to suspect the
existence of the disease. In such cases, also, great incentives to
fraud exist ;^ and it is well known how acute must be the penetra-
tion, and hoAv sharp the tests which are not sometimes baffled by the
simulation of mental unsoundness. On the other hand, a commis-
sion of lunacy is executed with deliberation, after a calm and full
review of the previous life of the party under consideration. Nor
is he likely, as in criminal defences, to obtain a verdict of insanity
through undue sympathy, for his interests and his pride are both
enlisted in resisting his moral and intellectual disfranchisement. It
becomes, therefore, a simple test. Is the respondent prevented by
mental unsoundness or habitual drunkenness from managing his
own estate ?^ If he is, no matter how responsible he may be for
crime, or capable at particular times of making a bargain, the find-
ing must be against him.

Upon a recovery of competency, the commission, on due cause
shown, will be superseded.^

• In actions for the interdiction of a
party for insanity, investigation of the
motives of those who are provoking the
interdiction is of the utmost conse-
quence. Francke v. His Wife, 29 La.
Ann. 302.

2 Titcomb v. Vantyle, 84 IlL 371 ;
Jacox V. Jacox, 40 Mich. 473; Fen-
tress V. Fentress, 7 Heisk. (Tenn.)
428 ; Gray v. Obear, 59 Ga. 675.

3 See Lackey v. Lackey, 8 B. Hon.
107; Russel in re, 1 Barb. Ch. 38;
Lasher in re, 2 Barb. Ch. 97 ; Mason
in re, 1 Barb. 436 ; Beaumont's case, 1
Whart. 52.

Prof. Ordronaux, in his treatise on
the Judicial Aspects of Insanity (N. Y.,
1877), 229, shows satisfactorily the pro-
cesses by which English chancellors
gradually reached the conclusion that
the test is business capacity. "Thus
in Gibson v. Jeyes, 6 Ves. Jr. 266 a, at

p. 272, which was a case of imbecility,
Lord Eldon observed that it was a ques-
tion ' whether this case might not sup-
port a commission, not of lunacy, but
in the nature of a writ de lunatico, in
which, it must be remembered, it is
not necessary to establish lunacy, but
it is sufacient that the party is incapa-
ble of managing his own aifairs.' And
in another similar case this same high
authority said that 'a commission of
lunacy' is not confined to strict insanity,
but is applied to cases of imbecility of ■
mind, to the extent of incapacity from
any cause, as disease, age, or habitual
intoxication. Ridgeway v. Darwin, 8
Ves. Jr. 65.

" Lord Erskine in ex parte Cranmer,
12 Ves. Jr. 445, reiterated the views ex-
pressed by Lord Eldon, and held that a
commission of lunacy was applicable to
incapacity from causes distinct from

COMMISSIONS OF LUNACY.

[§ 102.

§ 102. Opinions of witnesses as to the party's capacity Opinions of
are as admissible as in other cases of contested sanity.^ admissible.

lunacy. It will be evident from these
rulings how strongly the tide had turned
since Lord Hardwicke in ex parte Barns-
ley, 3 Atk. 169, A. D. 1744, decided
that, although there might be mental
incapacity in a party, still no return to
the inquisition would be good which
did not find the party of unsound mind.
And the ground upon which he rested
this ruling was, that while he was de-
sirous of maintaining the prerogative
of the crown in its just and proper
limits, yet, at the same time, he must
take care not to make a precedent of
extending the authority of the crown,
so as to restrain the liberty of the sub-
ject and his power over his own person
and estate, further than the law would
allow.

" In our own state, Chancellor Kent
gave an early assent to the doctrine
announced in the English decisions,
and on a similar question coming be-
fore him, in the case of Barker, 2 Johns.
Ch. 233, gave his entire approbation to
the course pursued by Lords Eldon and
Erskine. Barker was not a lunatic,
nor yet an idiot, but a feeble-minded
old man, incapacitated by advanced
age for the management of his own
affairs. A commission was accordingly
issued and a finding of unsound mind
returned. In referring to the duty of
courts of equity to issue commissions in
the nature of writs de lunatico, wherever
there was a reasonable doubt of a party 's
capacity to manage his own affairs, the
chancellor, while reviewing the English
authorities, said : —

" Lord Hardwicke disclaimed any ju-
risdiction over the case of mere weak-
ness of mind, yet it is certain that when

a person becomes mentally disabled,
from whatever cause the disability may
arise, whether from sickness, vice, cas-
ualty, or old age, he is equally a fit and
necessary object of guardianship and
protection. The court of chancery is
the constitutional and appropriate tri-
bunal to take care of those who are in-
competent to take care of themselves.
There would be a deplorable failure of
justice without such a power. The
object is protection to the helpless, and
the imbecility of extreme old age, when
the powers of memory and judgment
have become extinct, seems, as much as
the helplessness of infancy, to be within
the reason and necessity of the trust.

"And proceeding further to justify
the issuing of commissions in cases of
general mental incapacity without the
presence of actual insanity, he observed:
' It is evident that Barker is not a luna-
tic, within the legal meaning of the
term. He is not a person who some-
times has understanding and sometimes
not. He is, rather, of that class de-
scribed by Lord Coke as non compos
mentis.' Co. Litt. 246 b.

"An inquisition may, therefore, be
awarded for any cause which substan-
tially incapacitates a party to manage
his affairs. It matters not, therefore,
whether the party be reduced to this
condition by disease, or old age, or ha-
bitual intoxication. Ex parte Tracy, 1
Paige, 580.

" Any thing which reduces the men-
tal capacity of an individual to such a
degree as to permanently unfit him to
comprehend the nature and necessities
of his own affairs, to take in the posi-
tion which those affairs occupy to others,

• See Wh. on Ev. § 451 ; Winslow on Med. Leg. Ev. in Insau. 129.
VOL. I. — 7 97

§ 103.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

§ 103. In a trial in 1868, in Pennsylvania, proceedings were
commenced by the commonwealth to inquire whether Elizabeth

and the provision necessary to be made
to secure himself against the ordinary-
risks and contingencies of business,
may be said to render him, in contem-
plation of law, unfit to manage his
affairs. Although not properly a luna-
tic, he is still in the eye of the law non
compos mentis, and a proper subject for
an inquisition of lunacy.

' ' However probable may be the ex-
istence of the fact of lunacy, it must
still be sufSciently well substantiated
to satisfy the judgment of the court to
which application for a commission is
made, since the court cannot act on con-
jecture alone. Therefore, in Sherwood
V. Sanderson, 19 Ves. 286, Lord Eldon
observed that ' before a commission
issues, the duty of that person who has
authority to issue it requires him to
have evidence that the object of the
commission is of unsound mind and in-
capable of managing his affairs, and
for that purpose the evidence of medical
men is generally produced.'

' ' But it is not every case of mental
weakness or imbecility which will au-
thorize a court of equity to exercise the
power of appointing a committee of the
person and estate. In order to justify
the exercise of such a power, it has
been held that the mind of the indi-
vidual must be so far impaired as to be
reduced to a state which, as an original
incapacity, would have constituted a
case of idiocy. Matter of Morgan, 7
Paige, 236 ; Matter of Shaul, 40 How.
Pr. 204. Although there certainly are
degrees in idiocy, it is doubtful whether
the standard thus selected, as popularly
understood, is not a lower one than
courts could generally or even safely
adopt in exercising guardianship over
the feeble-minded. Every day fur-
nishes evidence of the existence of cer-

tain minds which, far above idiocy in
intensity and extensity of power, are
yet shown by experience to be incapable
of governing themselves or managing
their affairs. Without being idiots,
they are still capable of being included
among the non compos class. It was to
this feeble class that Lord Hardwicke
referred, when he observed that it
might be well if a curator or tutor
should be set over prodigal and weak
persons, as in the civil law. Ex parte
Barnsley, 3 Atk. 169."

See, to same effect, Nailor v. Nailor,
4 Dana, 339 ; Shaw v, Dixon, 6 Bush,
644. It is competent, under the stat-
utes, to appoint a conservator for the
estate of an insane married woman,
and, upon proper showing, to decree a
sale and conveyance of her estate, al-
though, when the statutes were passed,
the common law governing the rights
of married women obtained in the state.
Conveyances by conservators are con-
veyances made by the law for the bene-
fit of the lunatic, and are analogous to
conveyances by guardians and adminis-
trators, and are in no sense to be re-
garded as conveyances by the lunatic.
Where the court had jurisdiction to
decree such a sale, a proper petition
was filed, and all the parties in interest
were before the court, whether the
court judged correctly in regard to the
property in question being the kind or
class of property of which a sale should
be decreed, or in regard to the neces-
sity of a sale, cannot be inquired into
in a collateral proceeding. Gardner v.
Maroney, 95 111. 552.

That the court will issue a commis-
sion on a primd facie case, see Tomlin-
son ex parte, 1 Ves. & Beav. 57.

The procedure must be conducted
under the same sanction as other judi-

COMMISSIONS OF LUNACY.

[§ 103.

Schneider was a lunatic, etc. The inquisition finding Ability to

. 1 1 • f 1 1 ii L manage

the respondent a lunatic was confirmed bj the court, business

cial investigations. Lincoln ex parte,
1 Brewst. 392 ; Pettit ex parte, 2 Paige,
174 ; Russell ex parte, 1 Barb. Ch. 38.
The commissioners may compel the
production of the lunatic before them
for their inspection and that of the
jury, if deemed desirable, and this, in
all cases wherever possible, should be
done. 2 Barb. Ch. Pr. 233; Russell
ex parte, 1 Barb. Ch. 38. Should any
custodian of the lunatic or other person
interpose to prevent this inspection, he
may be punished for contempt. This
was done in Lord Wenman's case,
where Lady Wenman, who was an
Irish peeress, and had charge of her
husband, was committed for contempt
for not producing him when required
(1 P. Wms. 701). If the persons hav-
ing charge of the lunatic carry him out
of the state, the commission may still
he executed in his absence. See Ordro-
naux, ux supra.

It is the duty of the sheriff alone to
select and to summon the jurors, and it
is both improper and irregular for the
commissioners to dictate what persons
are to be summoned. Wager ex parte,
6 Paige, 11.

" In conducting the trial it is usual
for the person first named upon the
commission to act as president ; to ad-
minister the oath to the jury ; to read
and explain the commission to them ;
to swear and examine the witnesses,
who must testify both as to the lunacy
of the party, his next of kin, and the
value of his real and personal property.
And some one of the commissioners
should also charge and instruct the
jury as to the matters to be found by
them in their verdict. 2 Barb. Ch. Pr.
233." Ordronaux, ut supra.

In Arnhout in re, 1 Paige, 497,
Chancellor Walworth, in directing the

manner in which the jury should be
charged, says, " but without argument
of counsel on either side. " On this Prof.
Ordronaux makes the following just
criticism. "Now, since it was always
a settled rule of practice in our court
of chancery, that any party against
whom a commission of lunacy was
awarded could be represented by coun-
sel (1 Moulton's Ch. Pr. 110), we know
of no principle of law which would
authorize the commissioners to refuse
permission to such counsel to address
the jury. For it might become a very
essential part of his duty to enlighten
the jury upon the value or significance
of the evidence introduced, and we do
not well see how, without great injus-
tice to the parlies interested, any coun-
sel could legally be restricted to the ex-
amination of witnesses alone. Such a
restriction has certainly never existed
in England, and the question, there-
fore, has never called for special adju-
dication. Nor if raised before any of
our courts do we believe it would re-
ceive any countenance."

In Arnhout in re, 1 Paige, 497,
Chancellor Walworth laid down the
following additional rules, viz, : The
jury are to be instructed that, if twelve
or more of them find that the party is
not incompetent, they are to deliver
their verdict accordingly, or if the
same number decide against his com-
petency, that they then find and deter-
mine the other facts directed to be
inquired of, and that if twelve of them
cannot agree either way, they report
the facts to the commissioners in order
that their return be made accordingly.
And in relation to every legal question
arising in the execution of the commis-
sion, a majority of the commissioners
must decide. Ordronaux, ut supra

§ 104.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

the test of The respondent traversed the finding. On the trial
tency. the court of common pleas charged (inter alia), "Until

the mind is entirely blotted out, persons must be left to the
management of their own affairs. As long as there is a spark of
intelligence left, the law does not permit their liberty to manage
themselves or property to be taken from them." A writ of error
was taken out, which assigned for error the portion of the charge
just quoted. In the supreme court, the opinion was delivered by
C.J. Thompson, who said: "The truth and practical test under
this proceeding is this— Utter and unmitigated madness, or abso-
lute and hopeless idiocy, resulting from cerebral injury or disease,
or want of intellect from nativity, are by no means the only tests.
The protection of property is one, if not the main object of the
statute ; it is practical, that the test of liability to a commission,
should depend greatly on that unsoundness of mind which discloses
incompetency to its management, and the care and protection of it
in a rational manner ; and this is the rule in England." He then
cited English authority to sustain him, and said : " The learned
judge fell into an error, by following the lead of Beaumont's case,
1 Wharton, 52, which seems mainly to have rested on Barnsley's
case, 3 Atk. 168, which we have seen Lord Eldon refused to follow
in Ridgway v. Darwin."^

§ 104. A petition for a commission de lunatico inquirendo was
But mere presented by the son of Sarah Collins, in 1867, to the
old age chancellor of New Jersey, applyina; for a commission to

does not . , ,

incapaci- take charge of his mother s person and estate. She
was in the hundredth year of her age, her hearing was
somewhat impaired, and her sight very much so. The weight of
the medical testimony, however, was in favor of her soundness
of mind. The court held that there was no presumption against
her soundness from her extreme age. " She may," says the
chancellor, " be so weak and infirm as to be easily influenced, or
imposed upon, which would be a reason for setting aside any in-
struments or transactions executed under the effect of such influ-
ence, but this does not amount to unsoundness such as to take from
her the control of herself and her property."^

> Com. V. Schneider, 59 Penn, St. « Collins in re, 18 N. J. Eq. 253.
328 ; S. P. Watson's Interdiction, 31 See ante, § 87.
La. Ann. 757.

100

COMMISSIONS OF LUNACY. [§ 105.

§ 104 a. In a case which attracted much popular attention at
the time,^ Chief Baron Pollock declared, that " no person Harmless
ou^ht to be confined in a lunatic asylum unless dan^ierous lunatics

° ... confined

to himself and others." This dictum^ which startled when
both the legal and the medical professions at its utterance,
has been combated, and with great ability, by very eminent psycho-
logical authority,^ and has not been followed by the current of
American judicial opinion. There are necessarily cases when the
safety of property and the health of the patient himself, require
confinement in an asylum, though there be no danger of violence
to himself and others, and it is not likely that the existence of such
cases will be again judicially questioned. Whether the confine-
ment, in any particular case, was proper or not, will be for the
court and jury, if an action of false imprisonment be brought, to
determine specially. And the law in such a case undoubtedly is,
that confinement is justifiable, if the safety either of the patient or
of others requires it, or it is necessary for his restoration to health.^

But the general practice is, not to direct, even under a finding
of lunacy, the confinement of the lunatic, except such confinement
be required by public peace and morals, or by the interest of the
patient.*

§ 105. In respect to drunkenness, the law is, that, while occa-
sional acts of intoxication will not justify a finding of
" habitual" drunkenness, yet, on the other hand, it is not stitutes
necessary for such a finding that the party should be con- ^j^Qj^^ard
stantly in an intoxicated state. Thus, in Pennsylvania,

* Nottridge v. Ripley, before Chief tive to the case of Nottridge v. Ripley,

Baron Pollock, sitting at nisi prius, Dundee, 1849.

June, 1849, reported in full in Journ. ^ Hinclinian v. Richie, Brightly R.

of Psyc. Med. vol. ii. p. 630. 143. Under the Louisiana code there

2 See a remonstrance with the lord are three things necessary to justify

chief baron, touching the case of the interdiction of a party as insane :

Nottridge v. Ripley, by John Conolly, 1. The absolute incapacity to admin-

M.D., 1849. A letter to the lord ister one's estate; 2. The absolute in-

chancellor on the defect of the law capacity to take care of one's person ;

regulating the custody of lunatics, by and 3. An actual and unavoidable

Charles Curten Cooper, London, 1849. necessity to interdict. Francke v. His

Psychological Review, vol. ii. p. 564; Wife, 29 La. Ann. 302.
ib. vol. iii. p. 14. A letter to the * Com. v. Kirkbride, 2 Brewst. 400.

Right Hon. Lord Ashley, M. P., rela- See King's Co. Asylum in re, 7 Abb. N.

C. (N. Y.) 425.

101

§ 105.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

Knox, P. J., in putting the case upon a traverse to the jury, said:
" Neither was it necessary to make out the case that a person should
be constantly in an intoxicated state ; that a man might be an
habitual drunkard, and yet be sober at times for days and weeks
together. That the question was, had the traverser a fixed habit
of drunkenness ? Was he habituated to intoxication whenever the
opportunity offered ? The question is one of fact for the jury to
find, but the court has no hesitation in saying, that the man who
is intoxicated or drunk one-half of his time, should be pronounced
an habitual drunkard." And, in the supreme court, Rogers, J.,
said : " To constitute an habitual drunkard, it is not necessary that
a man should be always drunk. It is impossible to lay down any
fixed rule as to when a man shall be deemed an habitual drunkard.
It must depend upon the decision of the jury under the direction of
the court. It may, however, be safely said, that to bring a man
within the meaning of the. act, it is not necessary that he should
always be drunk. Occasional acts of drunkenness, as the judge
says, do not make one an habitual drunkard. Nor is it necessary
he should be continually in an intoxicated state. A man may be
an habitual drunkard, and yet be sober for days and weeks together.
The only rule is, has he a fixed habit of drunkenness ? Was he
habituated to intemperance whenever the opportunity offered ? We
agree that a man who is intoxicated or drunk one-half his time
is an habitual drunkard, and should be pronounced such. We also
concur with the court, that, if the jury found the traverser to have
been at the date of the inquisition an habitual drunkard, it was
necessary to decide whether he was capable or incapable of man-
aging his estate. His incapacity in that event is a conclusion of
law. It is not necessary to say, it is a presumptio juris et de jure;
but, at least, it throws the burden of proof of capacity on the tra-
versers. Indeed, it may be well doubted, whether his management
or mismanagement of his estate is a matter of inquiry. It is very
certain, under the act of the 13th of June, 1836, proceedings may
be instituted against an habitual drunkard Avho has no estate. But
this cannot be if the mismanagement of it be necessary. It is well
said, that there must be an evidence of squandering property, to
support a proceeding to declare an individual an habitual drunkard,
else the object of the act in many cases would be defeated. For it
102

COMMISSIONS OF LUNACY. [§ 106.

is precautionary in its design, and hence a disposition of mind or
body which might lead to the wasting of an estate, is sufficient to
justify the enforcement of its provisions.^ It is indeed impossible
that a man can be an habitual drunkard without waste or mis-
management, as the very act of drunkenness is itself waste. In
this case, even if required, the evidence was full and plenary to this
point. "2

So, also, has it been held in Vermont, that an habitual drunkard
" is one who is in the habit of getting drunk, or one who commonly
or frequently gets drunk," not that he is constantly or universally
drunk .^

§ 106. An order was made on 23d November, 1861, in the Eng-
lish chancery, for a commission in the case of William gxtrava-
Frederick Windham, of Felbrigg Hall, Norfolk. The gance and

. . T . profligacy

petitioner's case was imbecility and a consequent ma- need not
bility on the part of the respondent to manage his own i^n^ompe-
estate. It appeared that he was sent in his boyhood to tency.
Eton ; but that while in that school his conduct was so unique and
extravagant as to lead to the belief that he was at that time
deranged. As he became older, these peculiarities became more
marked. He Avas extravagant and absurd in his purchases ; he
incurred enormous debts ; he was guilty at public places of gross
indecency which the presence of ladies did not restrain ; his asso-
ciates were among the uneducated and the profligate ; and three
weeks after he came of age he married a woman of disreputable
character, knowing that up to the night before the marriage she
had cohabited with one of his associates as the latter's mistress.
Although his income at this time was not more than ■£1580, he
presented her, shortly after his marriage, with jewelry valued be-
tween jel2,000 and .£14,000, and settled on her absolutely £800

1 Sill V. McNight, 7 W. & S. 245. It is, therefore, not the province of the

2 Ludwick V. Com., 18 Penn, St. 173. jury, upon a traverse of the inquisi-
In McGinnis v. Com., 74 Penn. St. 245, tion, to determine the extent of the
Agnew, J., said: "It is sufficient to traverser's ability to transact his busi-
find the person an habitual drunk- ness."

ard. The legal consequences flow from ^ state v, Pratt, 34 Vt. 323. As to

that fact, and not from any supposed or what constitutes habitual drunkenness

actual capacity of the habitual drunk- in a criminal sense, see Wh. Cr. L. 8th

ard to manage his business well. . . ed. § 1447.

103

§ 106.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

per annum. Although, after her marriage, she cohabited, to his
knowledge, with another man, he condoned this act, continuing to
live with her. His habits were devoid of cleanliness; and he some-
times displayed utter callousness. Unfortunately, when the ques-
tion came to be tried, there was the usual conflict of opinion among
the experts. Dr. Forbes Winslow and Dr. Mayo, it it true, whom
the court appointed medical examiners, and Dr. Bright, who was
associated with them as assessors, united in the emphatic opinion
that the respondent was in a state of mental imbecility, and was
incapable of managing his own affairs. Dr. Southey, who was ap-
pointed subsequently by the lord justices as an additional examiner,
came to the same result. On the other hand. Dr. Tuke, Dr.
Sutherland, Dr. Hood, Dr. Seymour, and Dr. Conolly testified,
that, in their opinion, Mr. Windham was sane and of sound business
capacity ; and Dr. Tuke, in particular, sustained this position on
the ground (1) of Mr. Windham's remarkable powers of observa-
tion, and (2) of the skill with which he had conducted his defence.
Mr. Warren, master in chancery, charged the jury that " the ques-
tion to be decided was not whether Mr. Windham was absolutely
insane, but whether there was such imbecility of mind, not amount-
ing to insanity, as to render him liable to be robbed by any one.
The broad question was whether he was of sufficiently sound mind
to be intrusted with the management of himself and his affairs.
Mere weakness of character, mere liability to impulse, good or bad,
mere imprudence, recklessness, and eccentricity did not' constitute
unsoundness of mind, unless, in looking fairly at the whole of the
evidence, there was good reason to refer them to a morbid condition
of intellect. They might furnish evidence of unsoundness, but they
did not constitute it." The jury, by a majority of 15 to 8, returned
as a verdict that " Mr. Windham is of sound mind and capable of
taking care of himself and his affairs." "After the verdict was
returned," says Dr. Taylor,^ " he was guilty of many extravagant
acts, exhausted a splendid fortune and became a bankrupt ; showing
that, whatever legal soundness of mind he might possess in the
opinion of two-thirds of the jury, he practically did not evince that

' Taylor's Med. Jur., Penrose's ed. Winter, reported in 26 Am. Journal of
p. 665. A case, corresponding in many Ins. 47.
respects with the above, is that of

104

COMMISSIONS OF LUNACY. [§ 107.

capacity which they declared him to possess in taking care of him-
self or his affairs." But Dr. Taylor, in citing bankruptcy, and
even waste, as evidence of want of business capacity, mistakes the
purport of laws instituting commissions of lunacy. They are not
designed to place men, who are simply extravagant or reckless, in
the hands of a committee, for, if so, all business Avould be at a
standstill, and half the estates of the country Avould in a few years
be placed in chancery. The question for such commission simply
is, Is the respondent incapable from mental unsoundness of managing
his own affairs ? If capable, he must be allowed to contribute his
own energies and means to that volume of public wealth whose ebb
and flow are essential to the economical activity of the state. He
must take his chance, and learn, if he can, from the discipline of
life, that wisdom which, perhaps, he may not at first display.
" Mere extravagance or follies," as declared by Lord Chelmsford
when commenting on this case in the House of Lords, " are not,
therefore, sufficient, unless the imbecility amounted to unsoundness
of mind."^

§ 107. If a commission be found to have been irregular in its
inception or execution, or if substantial justice has not
been done, either the commission may be quashed, or, if in^^smaybe

it has matured into an inquisition, the inquisition may ?*'* ^^"^^^ ^^
_ _^_ ' ^ " irregular or

be set aside. Thus inquisitions have been set aside be- inequit-

able.

cause of undue interference by the commissioners with
the summoning of the jury f because the sheriff improperly inter-
fered with the deliberations of the jury ;3 because the alleged lunatic
had no notice given him of its occurrence ;* because a stranger was
appointed committee without the assent of the relatives of the
lunatic and without a reference ;^ because the commissioners refused
to issue subpoenas in behalf of the alleged lunatic f because upon
the personal examination of the lunatic by the court, and of the

' And where, by statute, a guardian " Wager inre, 6 Paige, 11.

may be appointed for a spendthrift, to * Arnhout in re, 1 Paige, 497.

warrant such appointment there must * Tracy in re, 1 Paige, 580.

be evidence of excessive drinking, s Lamoree's case, 11 Abb. 274 ; S.

gaming, debauchery, and the like. C, 32 Barb. 122, and 19 How. Pr. 375.

Proof of weak-minded habits in the 6 Ex parte Plank, 3 Am. L. J., N. S.

management of money is not enough. 518.
Morey's Appeal, 57 N. H. 54.

105

§ 107.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

evidence adduced upon the trial, the court held that the jury erred
in finding their verdict; though in such case the introduction of new
evidence, where no valid reason can be shown why the same was
not produced upon the trial, will not be permitted ex ixirte to con-
tradict the verdict, unless there has been gross error or undue pre-
judice exhibited on the part of the jury.^

The inquisition, also, is defective, if it does not conform to the
statute in its finding ■,^ though a mere misnomer of the lunatic in the
inquisition and other proceedings will not, of itself, invalidate them.
For this may be amended by an order entering such amendment into
future documents in which such lunatic's name is mentioned, the only
point to be considered being the establishment of his identity.^

Where the inquisition and proceedings have been set aside, for
any cause, a second commission cannot be issued on the original
petition, because the continuance of the reasons upon which the
first was based cannot be presumed at law, but must be proved
de novo.*-

» Russell in re, 1 Barb. Ch. 38 ; Te- " Crawford in re, 1 Myl. & Cr. 240 ;

bout in re, 9 Abb. 211 ; Ordronaux, ut Ordroiiaux, ut supra,

supra, 222-250. * Hincbman v. Ricliie, Brigbt. 144,

2 Morgan in re, 7 Paige, 236. 182 ; Ordronaux, ut supra.

106

INSANITY AS A DEFENCE TO CHARaE OF CRIME.

CHAPTER IV.

INSANITY AS A DEFENCE TO CHARGE OF CKBIE.

I. General Rule.

Theory that insanity is a question ex-
clusively of fact, § 108.

Objections to this view, § 109.

Term "mental disease" includes every
phase of passion, § 110.

And is ambiguous, § 111.

Definition of insanity must come from
court, not experts, § 112.

Jury not qualified to decide question of
law, § 113.

Question rests with judges, § 115.

II. Special Exceptions.
Enumeration of exceptions, § 116.

1. Where the defendant is incapable of dis-
tinguishing right from wrong in reference
to the particular act.

Idiots and maniacs irresponsible, § 117.

English relaxation of rule in such case,
§118.

General test is knowledge of right and
wrong, § 119.

Right and wrong test generally satis-
factory, § 120.

But with exceptions, § 121.

Insanity coexisting with power to dis-
tinguish right from wrong should
diminish responsibility, § 122.

" Moral insanity" no defence, § 123.

Otherwise with insane delusions, § 124.

2. When the defendant is acting under an
insane delusion as to circumstances which,
if true, luould relieve the act from respon-
sibility, or where his reasoning pouters
are so depraved as to make the commis-
sion of the particular act the natural
consequence of the delusion.

In England delusions may be a defence,

§ 125.
And so in this country, § 126.

Delusions must be objective, § 127.

Illustrated by Levett's case, § 128.

Delusion to be determined from defend-
ant's stand-point, § 129.

So as to delusion as to danger, § 130.

So as to delusion as to the party at-
tacked, § 131.

So as to delusion as to supernatural
commands, § 132.

Guilty consciousness may be consistent
with irresponsibility. English rule
to this effect, § 133,

So held in America, § 134.

Distinction between objective and sub-
jective delusions, § 135.

Where reason can dispel subjective de-
lusion, responsibility exists, § 136.

Subjective delusions must be insane to
destroy responsibility, § 137.

And proved to be so, § 138.

Where party is otherwise sane respon-
sibility remains, § 139.

Illustrations, § 140.

Danger of assigning irresponsibility to
delusions, § 141.

Prior insanity a test, § 142.

So of heredity, § 143.

Proof that delusion is sane competent,
§ 144.

Delusion unconnected with crime no
defence, § 145.

3. Where the defendant, being insane, is
forced by a morbid and irresistible im-
pulse to do the particular act.

Irresistible impulse distinct from moral
insanity and passion, § 146.

With the sane, no impulse irresistible,
§147.

Punishment necessary to prevent crime,
§ 148.

Fear a check on passion, § 149.

107

§ 108.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

" Irresponsibility" impossible to de-
termine, § 150.

Material theory of volition incorrect, §
150 a.

Passion Is a mitigating element, § 151.

Authorities for defence of " irresistible
impulse," § 152.

Instances of irresponsibility coexisting
with guilty consciousness, § 153.

Opinion of Chief Justice Shaw, § 156.

Of Chief Justice Gibson, § 157.

Of Judge Lewis, § 158.

Insane uncontrollable impulse recog-
nized in Illinois and Indiana, § 159.

And in Ohio, Minnesota, Kentucky,
and Iowa, § 160.

Contra in North Carolina and other
states, § 161.

Mania transitoria, not a defence, § 162.

4. '^ Moral Insanity'^ (i. e., a supposed
insanity of the moral sense claimed to
coexist with mental sanity) is no defence.

" Moral insanity" is no defence, § 163.

This affirmed in England, § 164.

In Townley's case, § 165.

In Watson's case, § 166.

And in Edmund's case, § 167.

So in United States, § 174.

Exception in Kentucky, § 175.

Analysis of objections to "moral in-
sanity," § 183.

Doctrine inconsistent with safety of
community, § 184.

States must enforce exercise of reason,
§185.

Not to reform guilt is to encourage it,
§186.

Imprisonment should depend on convic-
tion of specific crime, § 187.

Moral sense to be built up by state, §

188.
Efficiency of penal discipline for this

purpose, § 189.

5. While experts may be called to testify
as to states of mind and conditions of
health, it is for the courts to declare
whether such states and conditions consti-
tute irresponsibility.

Such the general rule. Exception in
New Hampshire, § 190.

Opinion in the case of State v. Pike, §
191.

Prevalent opinion is that question of
irresponsibility is for court, § 193.

Difficulty in obtaining full expert testi-
mony, § 194.

Such testimony is partial and imper-
fect, § 195.

Extravagance of the theories it brings
out, § 196.

No tribunal exists to decide conflict of
experts, § 3 97.

Court must weigh testimony of experts,
§ 198.

And decide upon it, § 199.

Responsibility is a judicial question,
§ 199 a.

6. Predisposition to insanity as loivering
the grade of guilt.
Capacity of party, measure of guilt, §
200.

7. Capacity of insane defendants to plead.
Preliminary inquest on formal plea of

insanity, § 200 a.
Insane defendant incompetent to plead,

§201.

I. GENERAL RULE.^

§ 108. Two preliminary questions meet us as we enter on the
discussion of criminal responsibility. The first is, whether the

' The consideration to be given to of New Hampshire, in a charge to the
this species of defence was thiis justly grand jury: "The public papers, in
and humanely stated by Parker, C. J., giving reports of trials, often say, ' the

108

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 108.

definition of " insanity" is for the court or for the jury, Theory
and was mooted in 1870 and 1871 in two able judgments sanity is a

defence was, as usual, insanity,' or
make use of some other expression,
indicating that this species of defence
is resorted to, in desperation, for the
purpose of aiding in the escape of crimi-
nals. Such opinions are propagated,
in many instances, by those whose feel-
ings are too much enlisted, or whose
ignorance respecting the subject is too
great, to permit them to form a dispas-
sionate and intelligent judgment ; and
they have a very pernicious tendency,
inasmuch as they excite the public
mind, and the unfortunate individual
who is really entitled to the benefit of
such defence is thereby sometimes de-
prived of a fair trial. They tend to
make the defence of insanity odious, to
create an impression against its truth
in the outset, and thus to bias the mind
of the jury against the prisoner, and
to induce them to give little heed to
the evidence, in the very cases where
the greatest care and attention and
impartiality are necessary for the de-
velopment of truth and the attainment
of justice.

" We all concur in the doctrine of
the law, that, for acts committed dur-
ing a period of insanity, and induced
by it, the party is not responsible ; that,
when the criminal mind is wanting —
when, instead of being guided by the
reason which God bestowed, the indi-
vidual is excited and led on by insane
fury and impulse, or by the aberrations
of a wandering intellect, or a morbid
and diseased imagination, or a false
and distorted vision and perception of
things — punishment should not follow
the act as for an offence committed ;
that, when the faculty of distinguish-
ing between right and wrong is want-
ing, the individual ought not to be
held as a moral and accountable agent.

As well, nay, much better, might we,
as was formerly done in France, insti-
tute prosecutions against the brute
creation for offences committed by them,
and hang a beast for homicide, than to
prosecute and condemn a human being
who is deprived of his reason ; for in
such case there is no hope or restora-
tion to a right mind, and a reinstating
of a fellow-citizen, who has been once
lost to the community, in the rights
and affections of humanity. But if we
imbibe the idea that instances of in-
sanity are very rare — that derange-
ment exists only when it manifests
itself by incoherent language and un-
restrained fury — that the defence,
when offered, is probably the last re-
sort of an untiring advocate, who, con-
vinced that no real defence can avail,
will not hesitate to palm off a pretended
derangement to procure the escape of
his client from merited punishment —
if in this way we steel our hearts against
all conviction, it is of little avail that
we agree to the abstract proposition,
that insanity does in fact furnish a
sufficient defence against an accusation
for crime.

"There are undoubtedly instances
where this defence is attempted from
the mere conviction that nothing else
will avail — cases where the advocate
forgets the high duty to which he is
called, and excites a pi-ejudice against
the case of others, by attempting to
procure the escape of a criminal under
this pretence ; but such are truly rare,
and usually unsuccessful."

"Lawyers and physicians," says
Mr, Stephen, in his treatise on Criminal
Law (London, 1863, p. 87), "mean
two different things by the word ' mad-
ness.' A lawyer means conduct of a cer-
tain character. A physician means a

109

§ 108.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. .

question of the Supreme court of New Hampshire. In the first of
of fact. these cases,^ the defence was "dipsomania;" and the
court trying the case (Perley, C. J., and Doe, J.) in-
structed the jury that, " whether there was such a mental disease
as dipsomania, and whether the killing of Brown (the deceased)
was the product of such disease, were questions of fact for the
jury."^ In a subsequent trial for murder in killing the defendant's
wife, where the defence was an insane delusion that the wife had
been guilty of adultery, the court (Doe, J.) charged the jury that,
if the defendant killed his wife in a manner that would be criminal
and unlawful if the defendant were sane, " the verdict should be
not guilty by reason of insanity, if the killing was the offspring or
product of mental disease in the defendant. Neither delusion nor
knowledge of right and wrong, nor design or cunning in planning
and executing the killing and escaping or avoiding detection, nor
ability to recognize acquaintances, or to labor, or transact business,
or manage affairs, is as matter of law a test of mental disease ; but
all symptoms and all tests of mental disease are purely matters of
fact to be determined by the jury.

" Whether the defendant had a mental disease, and whether the
hilling of his wife was the product of such disease, are questions of
fact for the jury y '-^Insanity is mental disease — a disease of the
mind. An act produced hy mental disease is not crime. If the

certain disease, one of the effects of be proof of insane conduct, no amount

wliich is to produce sucli conduct. If of cerebral disorder or hereditary in-

the pathological character of madness sane antecedents has been held, by

could be accurately ascertained, the intelligent medical experts, to raise

difference would be perfectly clear, even the presumption of insanity. See

Suppose, for example, it were shown articles in Am. Journ. Ins. for 1872,

to consist in obscure inflammation of p. 70; ibid., vol. 31, p. 30 ; and by Dr.

the brain. It would obviously be mon- Gray, in Trans. Med. Soc. N. Y., 1871.

strous to set aside a perfectly reasona- See also article by Dr. Ray in Am.

ble will, made with every circumstance Journ. Med. Sciences, N. S. vol. 65, p.

of deliberation and reflection, because, 460, and one in 18 Journ. Ment. Sci.

after the testator's death, it was proved, 311. And see " The Scientific Value of

by dissection, that, at the time of exe- the Legal Tests of Insanity," by J. R.

cuting the will, he had obscure inflam- Reynolds, M.D., Lond. 1872.

mation of the brain ; yet this would be ' State v. Pike, 49 N. H. 399.

demonstrative proof that in the medi- * See this case examined at large,

cal sense of the word he was mad." infra, §§ 1^0, 191.
But would it ? Certainly, unless there

110

INSANITY AS A DEFENCE TO CHARGE OF CHIME. [§ 110.

defendant had a mental disease which irresistibly impelled him to
kill his wife — if the killing was the product of mental disease in him
— he is not guilty. If the defendant had an insane impulse to kill
his wife, and could have successfully resisted it, he was responsible.
Whether every insane impulse is always irresistible, is a question
of fact.

" Whether in this case the defendant had an insane impulse to
kill his wife, and whether he could resist it, are questions of fact.
Whether an act may be produced by partial insanity when no con-
nection can be discovered between the act and the disease, is a ques-
tion of fact. The defendant is to be acquitted on the ground of
insanity, unless the jury are satisfied beyond a reasonable doubt
that the killing was not produced by mental disease." It was held
by the supreme court in error that these instructions were correct.^

§ 109. If the rule be that "mental disease" is exclusively a ques-
tion of fact for a jury, and if it be also exclusively a ques- obiections

tion of fact for the iury to determine Avhether the act com- to this

. view.

plained of was the product of mental disease, then any

further examination of the question as a matter of law is unneces-
sary. All that is required is to use the words in question in a charge
to the jury, and the matter, so far as concerns the court, is closed.
It is now submitted, however, that, able and learned as are the
judges who have maintained this view, it cannot be sustained on
reasons either psychological or judicial. That it cannot be sustained
on authority, these learned judges themselves concede.

§ 110. The proposition before us, then, is, that the entire ques-
tion of responsibility is to be left to the jury, with the
instruction that if the act was the product of "mental "mental
disease" they are to acquit. But what is "mental dis- fnciu^eg
ease?" And here we encounter the first obstacle to this every phase

01 passion.

method of solving this vexed and yet most important ques-
tion. "Mental disease," in fact, is a term so indeterminate and
vague, that to leave the question to the jury with the instructions
here criticized, is to leave it to them without any instructions at all.
Mental, like physical disease, ranges from slight indisposition or
disorder, on the one side, to the comatose state immediately pre-

' See Stevens v. State, 31 Ind. 485 ; and article in 4 Am. Law Review, 530 ;
Bee infra, § 191, note z.

Ill

§ 110.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

ceding dissolution, on the other. There is no phase of ennui or of
misanthropy, no tinge of jealousy or avarice, however faint; no cor-
rosion of remorse, however just, that has not received this title.
States of mind eminently responsible — those which the most latitu-
dinarian ethics would pronounce as peculiarly the subjects for the
discipline and penalties of the law — have, as was the case with Lady
Macbeth, been invested with the title as readily as those where re-
sponsibility is confessedly gone.^ Webster, in his Dictionary, tells
us that "in a figurative sense we speak of a diseased mind," and
he, as well as Worcester and Richardson, defines mental disease as,
first, want of ease, and, secondly, a morbid or unhealthy condition,
a definition which would include every mental state which makes
crime the object of desire. "In the world ye shall have disease f
so runs Wicklifi'e's translation of John, xvi. 33 ; and want of rest
and disquiet give still the primary meaning of the word, however
much, in our modern complimentary way of toning down by inade-
quate epithets subjects distasteful to us, it may have been meta-
phorically extended to denote active maladies. Yet, even when
thus metaphorically enlarged, the term includes passion in every
phase. Thus, in the second epistle of his Essay on Man, Pope
says: —

"Hence different passions more or less inflame,
As strong or weak, tlie organs of the frame :
And hence one master-passion in the breast,
Like Aaron's serpent, swallows up the rest.
As man, perhaps, the moment of his breath,
Receives the lurking principle of death :
The young disease, which must subdue at length,
Grows with his growth, and strengthens with his strength ;
So, cast and mingled with his very frame.
The mind's disease, its ruling passion came," etc.

' It is remarkable how pointedly the Pluck from the memory a rooted sorrow,

passage from which the term ' ' mind Raze out the written troubles of the

diseased" has crept into common use, brain,

brings out the idea of moral responsi- ^^^ ^^'^^^ s°™® ^""^^^ oblivious antidote,

bility as distinguished from irresponsi- ^^^^''^'' *^^ ^^""^^^ ^""^""^ ^^ ^^'"-^ P^"-"

ilous stuff

bility ; and how thoroughly inconsist-
ent is the state it depicts with irrespon-
sible insanity : —
Macbeth.

Canst thou not minister to a mind dis-
eased,

112

Which weighs upon the heart ?
Doctor.

Therein the patient must minister to
himself.

INSANITY AS A DEFENCE TO CHAP.GE OF CRIME. [§ 111.

§ 111. Now, if we substitute for "mental disease" in the formula
given in New Hampshire, any one of the definitions just ^n^is am-
noticed, we will at once see how inadequate is this mode biguous.
of disposing of the question. No one would maintain, for instance,
that it would not be in violation of all the fundamental sanctions of
criminal jurisprudence to tell the jury that they must acquit the de-
fendant if they believe the act was produced by a " mind ill at
ease," or by a "morbid or unhealthy condition of the mind," or by
the mind's " ruling passion." Yet the term "mental disease" le-
gitimately and primarily includes all these states, and may be pro-
perly used to describe every evil passion by which crime may be
caused. In fact, if criminal desire be, as is argued by eminent
physicists, always a mental disease, then the instructions under
controversy are equivalent to telling the jury that they must acquit
in all cases where the crime was the product of criminal desire.
Under such a system, only the innocent could be convicted of crime,
for only the innocent could be pronounced free from this psychical
peculiarity.

How ambiguous the term is, appears, in fact, from one of the very
rulings to which we here except. It was declared, in the first of
the cases commented on,^ that dipsomania was one of the defences
of which the jury were to be thus the supreme judges. The argu-
ment may be thus technically stated : All forms of mental disease
are, both as to their existence and their results, for the determina-
tion of the jury ; dipsomania is a form of mental disease ; therefore
dipsomania, both as to its existence and results, is for the exclusive
determination of the jury. But those who have introduced the term
"dipsomania," and who are the sole authorities who recognize it as
a distinct disease, declare that it is not a "mental" disease at all;
that it is exclusively a moral disease ; and that it may coexist with
a mind undiseaaed and sane. In order, therefore, to sustain the
conclusions of the court, we are obliged to make "mental" include
"moral," and thus expand the instructions to include moral disease,
or morbid condition of morals, as well as morbid condition of mind.
The court, therefore, while nominally declining to define insanity,
virtually defines it summarily, by making mental disease include
moral disorder.

' State V. Pike, ut supra.

VOL. I.— 8 113

§ 114.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

§ 112. But it is ably argued by Judge Doe, in the case just re-
ferred to, that this is a question to be determined by ex-
o/insanity perts who alone can define scientifically what insanity is.
must come rj^j^jg position is hereafter fully discussed, when this par-

troin court, ^ •' _ _ _ -^ _

not ex- ticular point comes up for special examination.^ It is
sufficient at this point to state (1) that the question in
criminal issues is not insanity but irresponsibility, which it is emi-
nently important should be limited by positive definition by the
highest judicial authority the state can constitute ; and (2) that
experts do not form such an authority, (a) because their sense, as
a body, cannot be obtained by any process known to our courts, (b)
because there is no independent court of experts, which on notice
to both sides, and after argument, if necessary, can, when the ex-
perts called in a particular case conflict, give a judicial opinion
upon the issue; and (c) because, in many cases of criminal defence,
only those eccentric and exceptional experts are selected who believe
in some Avild theory which may help out the defendant's case.^
§ 113. Rejecting, therefore, as impracticable and unphilosophical,
the su^sestion to devolve on experts the determination of

Jury not '=>° _ -^ _

qualified what " mental disease" is, and what are its results, we
question of fall back upon the question in its original, and what, in-
^''''' deed, must in this view be its final, state, and ask whether

a jur^ is a body fit to lay down settled rules on this momentous
subject. And in answering this, we must remember what the issue
really is. It is simply " responsible" or " irresponsible," an issue
of all others the most vital, both to the party himself, whose civil
existence depends on the result, and to the community, which is thus
to be advised whether it is to cage him as a dangerous lunatic, or to
permit him to receive at once the discipline and the immunities which
belong to a free citizen of a free state. Is it fit to intrust this ques-
tion to the decision of a jury with instructions so vague as those
which are given above ? Is a jury competent, when the matter is
so left to it, to establish definite rules which will place the doctrine
of responsibility on grounds which are just and safe ?

§ 114. We submit they are not, for the following reasons : (1)
They do not form a continuous body, prepared for their ofiice, as
are our courts of justice, by prior study. (2) The reasons of their

' Infra, §§ 194-200. " See also infra, §§ 194-200.

114

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 115.

decisions are not given, so that these decisions can form the basis of
future decisions. Each decision stands by itself, not controlled by
those which preceded it, and not controlling those which succeed.
(3) There is no " supreme" jury, by whom the decisions of " infe-
rior" juries can be corrected and symmetrized. Plence, instead of
obtaining in this way a definite and consistent body of law, which,
whatever may be its merits, will at least be a rule of action, we will
have a series of disjointed and conflicting edicts, from which no rule of
action can be deduced. Yet, after all, it is system, uniformity, and
consistency that penal law, in this respect, eminently needs. We
may illustrate this by recurring again to the doctrine of moral in-
sanity. If the existence of this disease, as conferring irresponsi-
bility, be maintained, then the community will protect itself by put-
ting persons " morally insane" under permanent restraint. If the
doctrine be denied, then such persons will, like all others, be subject
to penal discipline when they do wrong, and, if they persist in doing
wrong, then their lives will be spent in prison. What is necessary,
therefore, is not so much that this doctrine should be decided in
any particular way, but that there should be some decision, and that
this decision should be expressly and positively announced and be
made a precedent for future cases. But this is what a jury cannot
do. In deciding the question whether " moral insanity" is a defence,
no jury, if unguided by instructions of the court, will follow the
precedents of former cases, or establish a precedent by which future
cases can be ruled. The whole law, in this respect, will become a
blank ; and the doctrine of responsibility thrown into a chaos in
which it will be impossible to determine who is responsible or irre-
sponsible, sane or insane.

§ 115. The definition of penal responsibility, therefore, is a high
prerogative which judges, educated for the office as they
are, and appointed by the state as the guardians at once ^"refo*^"
of the sovereignty of the law and the liberty of the citi- rests with

. . . judges.

zen, cannot surrender or divide.^ The state has the right
to call on them to establish a consistent system which the commu-
nity may take for its guidance. Every man may be exposed to
danger from others, and therefore every man has a right to know
whether he must protect himself beforehand by appealing for a com-

J R. V. Richards, 1 F. & F. 87 : see infra, §§ 190-200.

116

§ 116.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

mission of lunacy against his assailant, or must rely for redress on
the ordinary common law process of indictment. Every man is liable
to be seized at any moment by such commission of lunacy, and we have
a right in this view to demand that there should be a definite line
of responsible judicial decisions to determine under what circum-
stances we are to be deprived of liberty and estate. Even persons
charged with crime have a right to be supplied with accurate infor-
mation of the law by which their defence can be shaped. And,
above all, society at large has a right to expect that the law which
regulates the relations of reason to crime^ should be mapped out
with precision by learned jurists, dedicated by solemn sanctions to
continuous judicial service, whose decisions on trial can be reviewed
on appeal, and who, if incapable or corrupt, can be removed. Nor
is the task one inconsistent with the judicial office. The determina-
tion of such questions no doubt belongs to the highest philosophical
jurisprudence, but it is one which even the homeliest practical juris-
prudence cannot avoid without serious injury to the state. ^

II. SPECIAL EXCEPTIONS.

§ 116. There is, however, a second preliminary difficulty that
remains to be noticed before proceeding to an examina-
tion of tion of the great question of criminal responsibility. The
exceptions, g^.^^ ^^^ ^^^^ 1^^^^^ disposed of. The second, which is

coeval with the existence of this branch of the law, arises from the
opposite extreme, namely, from the desire to force into an inflexible
and positive judicial code, special opinions delivered by judges when
particular facts requiring such opinions were under examination.

Thus, for instance, when a defendant, in whom there is no pre-
tence of mania or homicidal insanity, claims to be exempt from
punishment on the ground of incapacity to distinguish right from
wrong, the court very properly tells the jury that the question for
them to determine is, whether or no he labors under such particular
incapacity. The error has been to seize such an expression as this
as an arbitrary elementary dogma, and to insist on its application
to all other cases. Or, take the converse, and suppose the defence
is merely homicidal insanity. In such a case it would be very
proper to tell the jury that, unless they believe the homicidal ira-

1 See infra, §§ 183-188. 2 See §§ 185-189.

116

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 116.

pulse to have been uncontrollable, they must convict. And yet
nothing would be more unjust than to make this proposition, true in
itself, a general rule to bear on such cases as idiocy. It is pro-
posed to avoid this difficulty by treating this question practically,
in the only way in which it can arise in courts, and to consider
briefly, not what is the general limit of moral responsibility in the
abstract, but in what cases such responsibility ceases to exist.^
These will now be discussed.

1 The difficulty in this respect has
heen increased by the looseness with
which legal adjudications are cited by
even some of the more eminent text-
writers. In fact, while the exigencies
of counsel and the duty of judges re-
quire a constant recourse to the text-
books on this particular science, in
making up such text-books the autho-
rized law reports have not been suffi-
ciently relied upon.

Of the mistakes arising from loose-
ness of citation in this respect, we may
take as an illustration Wood's case,
which is invoked by Dr. Winslow, in
his Lectures on Insanity (p. 102), to
show that in America "a verdict of
lunacy" will be recorded under cir-
cumstances which really show nothing
more than vehement passion and mor-
bid excitement. In that case, which
occurred in Philadelphia in 1838, a
father shot his daughter in a paroxysm
of rage, caused by her improvident
marriage. The prosecution was aban-
doned by the attorney-general, under
circumstances which were not at all
connected with the defendant's sanity
or insanity ; and a verdict of acquittal
was rendered, not of lunacy, in the
teeth of a charge from the very able and
humane judge (.Judge King) who tried
the case, that the defence of insanity
had not been in any degree substan-
tiated. The verdict is no authority
whatever. It was produced by circum-
stances very derogatory to public jus-
tice, it was received with unbroken

disapprobation by the entire commu-
nity, and it was in direct opposition to
the charge of the court, instead of being
responsive to it. Had the official re-
port of the case been resorted to, the
last fact, at least, would have been
discovered.

Newspaper and other unofficial re-
ports, in fact, however interesting, are
of no legal authority, and they should
be to a peculiar degree received with
the qualifications which should be at-
tached to cases decided at nisi prius.
What a judge tells a jury is meant for
a particular issue. If the evidence
should show an old grudge, his duty
would undoubtedly be to say to the
jury that drunkenness must be left
entirely out of consideration. If the
defendant and the deceased were mere
strangers, and the defendant in sudden
passion, from what, to a man in his
state of mind, would be adequate pro-
vocation, killed the deceased, it would
be proper to tell the jury that drunken-
ness in this case would lower the of-
fence to manslaughter. It is plain,
however, that expressions directed to a
particular state of facts, cannot pro-
perly be severed from the context, and
propounded as absolute independent
principles applicable to all cases what-
ever., It is only by carefully marshal-
ling the facts that we learn what the
opinion of the judge trying the case
really was, and even then, the position
of the court, the opportunities it has
possessed for revision and a consulta-

117

§ 117.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

1. Whe7'e the defendant is incapable of distinguishing right from
ivrong in reference to the particular act.

§ 117. Under this head may be enumerated persons afflicted with
idiocy or with general mania. It is certain that wherever
maniacs such incapacity is shown to exist, the court will direct
mesponsi- ^^ acquittal ; or if a jury should convict in the teeth of
such instructions, the court will set the verdict aside.
The authorities to this effect are so numerous, that a general refer-
ence to them is all that is here necessary ; it being observed at the
same time, that while the earlier cases lean to the position that such
depravation of understanding must be general, it is now conceded
that it is enough, if it is shown to have existed in reference to the
particular act.^

The English law in this relation took definite and final shape in
the answer of the fifteen judges to the question propounded to them
by the house of lords in June, 1843. "The jury," they said,
"ought to be told in all cases that every man is presumed to be
sane, and to possess a sufficient degree of reason to be responsible
for his crimes, until the contrary be proved to their satisfaction ;
and that to establish a defence on the ground of insanity, it must be
clearly proved that at the time of committing the act, the party ac-
cused was laboring under such a defect of reason, from disease of
the mind, as not to know the nature and quality of the act he was

tion of authorities after argument, and
the authenticity and accuracy of the
report, enter largely into the question
how far the opinion so expressed is of
weight. For convictions in cases of
alleged insanity, see 32 Am. Journ,
Ins. 405 ; 34 ibid. 368 ; 26 Journ. Ment.
Sci. 247.

J See Wh. Cr. L. 8th ed, §§ 34 et seg.,
where the later authorities are given ;
1 Inst. 247 ; Bac. Abr. Idiot ; Co. Litt.
247 a ; 1 Russ. on Cr. by Greaves,
13 ; 1 Hawk. cl. s, 3 ; 4 Bla. Com. 24 ;
Collinson on Lunacy, 573, 673, (n) ; R.
V. Oxford, 9 C. & P. 525; Burrow's
case, 1 Lewin, 238 ; R. v. Goode, 7 A.
& E. 536 ; 67 Hans. Par. Deb. 728 ;
Bowler's case, Hadfield's case, ibid.

118

480 ; 1 Russ. II ; 27 How. St. Tr. 1316 ;
Com. r. Rogers, 7 Mete. 500 ; 7 Bost. L.
R. 449 ; Com. v. Hosier, 4 Penn. St.
264 ; Freeman v. People, 4 Denio, 9 ;
State V. Spencer, 21 N. J. L. 196 ; State
V. Gardiner, Wright, Oh. 392 ; Com. i-.
Parkin, 3 Penn. L. J. 482 ; Vance v.
Com. 2 Virg. C. 132 ; McAllister v. State,
17 Ala. 434 ; U. S. v. Sliultz, 6 McLean,
120 ; People v. Sprague, 2 Parker, C. R.
43 ; State v. Huting, 21 Mo. 464 ; R. v.
Barton, 3 Cos, C. C. 275 ; R. v. Oflford, 5
C. & P. 168 ; R. V. Higginson, 1 C. & K.
129 ; R. V. Stokes, 3 C. & K. 188 ; R. r.
Layton, 4 Cox, C. C. 149 ; R. i;.Vaughan,
I Cox, C. C. 80 ; People v. CofiFman, 24
Cal. 230 ; Com. v. Heath, 11 Gray, 303 ;
State V. Lawrance, 57 Me. 574.

INSANITY AS A DEFENCE TO CHARGE OF CRIxME. [§ 119.

doing, or if he did know it, that he did not know he was doing
what was wrong."^

§ 118. Severe, however, as the rule is, viewing it as an abstract
proposition, the English judges have not been unindulgent
when determining as to the amount of evidence from laxltion of
which ignorance as to right and wrong may be inferred, other cases
Thus, a married woman having killed her husband imme-
diately after an apparent recovery from a disease (the result of
childbirth), which caused a great loss of blood, and exhausted the
vessels of the brain, and thus weakened its power, and tended to
produce insane delusions of the senses, which, while suffering un-
der such disease, she complained of, and which, by her own account,
had been renewed at the time of the act of homicide (although they
■were not such as would lead to it): these facts were held by Erie,
J., to be evidence from which a jury might properly find that she
was not in such a state of mind at the time of the act as to know its
nature or be accountable for it.^

So, also, where a married woman, fondly attached to her children,
and apparently most happy in her family, had poisoned two of them
with some evidence of deliberation and design ; but it appeared that
there was insanity in her family ; and from her demeanor before
and after the act, which, although not wholly irrational, yet was
strangely erratic and excited ; and from recent antecedents, and the
presence of certain exciting causes of insanity, and her own account
of her sensations, the medical men were of opinion that she was la-
boring under actual cerebral disease, and that she was in a paroxysm
of insanity at the time of the act ; this was left by Wightman, J.,
to the jury, as evidence on which they might rightly find her not
guilty on the ground of insanity .^

§ 119. Is, however, the " right and wrong" test to be that by

which all cases of penal insanity are to be tried ? The Qg^gj-^i

negative will be presently argued ; and it will be main- test is

*== ... . knowledge

tained that the defence of insanity is also sustained, when of right

(1) there is an insane delusion from which the crime ^° wrong.

emanates, and (2) when, being at the time insane, the defendant

is forced to the act by an irresistible impulse ; though he in each

J SeeR.r.McNaghten, IC.&K. atp. ' Wh. Cr. L. 8th ed. §35; R. v.
134 ; 8 Scott N. R. 595. Vyse, 3 F. & F. 247.

2 R. V. Law, 2 F. & F. 836.

119

§ 120.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

case knows the act is forbidden by the laws of the land. But in

cases which do not fall within those exceptions, the prevalent '

opinion is that if the defendant knew enough to distinguish right

from wrong as to the particular case, the defence of insanity is not

made out.^

§ 120. Whatever may be the theory of responsibility we adopt,

T,. , . , there is much to commend the " right and wrong" test to
Kignt and ^ °

wrong test our acceptance. As is shown in another work,^ there

generally . .

satisfac- are three theories on which punishment is based : 1st, that

°^^" of retribution ; 2d, that of prevention ; and 3d, that of

example. Whichever of these views we take, it seems proper to
make a consciousness of right and wrong as to a particular act a
condition of responsibility for that act. If we take the theory of
retribution, we cannot in justice impose punishment where there is
no guilt. Punitur quia 'peccatum est, is the basis of that theory ;
there must be sin to sustain punishment, and sin involves sense of
wrong. On the retributive theory, therefore, we are justified in
holding all persons, conscious of the wrongfulness of a particular
act which they commit, responsible for that act. And on the pre-
vention and example theories, the argument for punishment of per-
sons who, however disturbed may be their minds, are conscious of
the difference between right and wrong, as to the particular act, is
still stronger. Penal law is a general system, applicable to all
subjects of the state imposing it, exacting certain duties, and pro-
hibiting that which law-makers consider to be wrong.^ The law
cannot, however, forbid, without punishing in case of disobedience ;
for prohibition without punishment ceases to be prohibition. Now,
it is conceded by those having charge of lunatics, that they are the
subjects of discipline. In fact, the police system which prevails in
all lunatic asylums assumes this, even should we cast aside the
abundant general testimony from experts that lunatics are, as a
rule, open to the influence of fear of punishment. If so, do they
differ, except in degree, from men who are the slaves of passion, or
the victims of demoralizing education ? Mitigation of guilt, indeed,
and diminished responsibility, may be claimed for them on account

' See cases supra; R. «. Oxford, supra, will be found grouped in Wli. Cr. L. 8tli

§ 117 ; An. Reg. 1840, pt. ii. p. 262 ; R. ed. §§ 37 et seq.
V. McNaghten, ibid. 1843, pt. ii. p. 35 ; 2 Wh. Cr. L. 8th ed. §§ 1 et seq.
supra, § 117 ; the American authorities ' See infra, §§ 183-188.

120

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 122.

of their infirmity ; but, as penal law can control their outbursts, the
interests of society require that over them penal law should con-
tinue to assert its control.

§ 121. Yet, admitting the force of this, there are preponderating
reasons which lead us again (1881) to assert the quali- But with
fications we expressed in former editions of this work, exceptions.
That the " right and wrong" test does not cover all the cases of
legitimate instme irresponsibility, will now be shown.

§ 122. Medical and psychological observation, based on an induc-
tion which each year makes at once more extended in its
materials and more absolute in its results, tells us that coexisting
there are persons unquestionably insane who are capable ^^^^. ppwer
of being instructed in the "law of the land," of knowing guish be-
what this law is, both in its general character and its and wrong.
results, and of being deterred by proper sanction, from ^finiQ^g^^^*^
breaking such law.^ responsi-

, . , bility.

What is to be done with such lunatics, on the test which
is above given ? Are they to be punished, as if they were sane,
if they happen to violate a law of which they are aware ? This un-
doubtedly is one of the most profound and delicate questions which
penal jurisprudence can approach. The North German Code has
endeavored to solve the difficulty by establishing in such cases
what is called diminished responsibility, followed, in cases of con-
viction, by penalties graduated on a milder scale than those which
are visited on the entirely sane. And, assuming, as is really the
case, that there are grades of insanity just as there are grades
of sanity, and that the two melt together at their juncture almost
imperceptibly as do day and night in twilight,^ it is philosophically
just, that in the lower grades of sanity, and in the more " rational"
and responsible grades of insanity, such a rule should be imposed.
If it be not, either society will be exposed to the unnecessary peril
of having its order disturbed by the inroads of a class of men who
are not insane enough to be constantly confined, but are too insane
to be punished, or the great cruelty would be inflicted on this very
class, whom a just and humane penal system could restrain, of shut-

« See infra, §§ 378, 389, 410. The « See supra, § 50.
recent authorities will be found in Wh.
Cr. L. 8th ed. § 40 et seq.

121

§ 124.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

ting them up for life in asylums. Our common law reaches some-
what the same remedy by declaring, as will hereafter be seen, that
there are certain abnormal states of mind, e. g., drunkenness, and
by the same process of reasoning, exaltation and excitement produced
by cerebral disease, which, while they do not destroy responsibility,
or justify a jury in rendering a verdict of not guilty as to the fact
of guilt, neutralize the presumption of malice and of premeditated
intent, and lead, therefore, to a conviction of the offence charged in
its minor and less aggravated stages. Particularly is this the case
in prosecutions for homicide, where, in cases of mental turmoil, ex-
citement, or debility, the specific and deliberate and cool inteat to
take life, essential, in most American states, to murder in the first
degree, is not capable of proof, and in which, therefore, the verdict
is properly murder in the second degree, or manslaughter.^

§ 123. But there are phases of insanity to which even this attri-
bute of " diminished" responsibility cannot with any ius-
' ' Moral 1 ./ .; i)

insanity" tice be applied. That the so-called " moral" insanity
no e ence. ^^ ^^ ^ supposed condition in which the moral system is
insane but the mental sane) is not one of these phases, will be here-
after abundantly shown. ^

§ 124. But it is otherwise with insanity accompanied with delu-
sions of such a character that the patient believes he is
with'^^^^^ authorized by superior authority to dispense with the law
insane of the land, and with insanity one of whose elements is

delusions. . ...

an impulse to commit crime which the reason is unable to
resist. If there be such phases of insanity as these, it is clear that
their subjects are not responsible to the ordinary processes of penal
justice. Yet such patients the "right and wrong" test might pro-
nounce sane. In such cases, therefore, this test cannot be exclu-
sively applied.

I See infra, §§ 151, 200. 2 See infra, §§ 163, 189, 533, 567.

122

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 126.

2. When the defendant is acting under an insane delusion as to
circumstances, which, if true, would relieve the act from respon-
sibility, or ivhere his reasoning powers are so depraved as to make
the commission of the pai'ticular act the natural consequence of
the delusion.

\_For several valuable medico-juridical opinions in cases of alleged
delusions, see the third edition of this work, Ajjpendix, §§ 833,
834, 837, 843.]

§ 125. The answer of the English judges on this point requires
special comment. The question propounded to them in
this respect was, " If a person, under an insane delusion ^eiuslonT*^
as to existing facts, commits an offence in consequence ^^7 ^^ *
thereof, is he thereby excused?" "To which question,"
they replied, " the answer must of course depend on the nature of
the delusion ; but, making the same assumption as we did before,
namely, that he labors under such partial delusion only, and is not
in other respects insane, we think he must be considered in the same
situation as to responsibility, as if the facts with respect to which
the delusion exists, were real. For example : if, under the influ-
ence of his delusion, he supposes another man to be in the act of
attempting to take away his life, and he kills that man, as he sup-
poses, in self-defence, he would be exempt from punishment. If
his delusion was, that the deceased had inflicted a serious injury to
his character and fortune, and he killed him in revenge for such
supposed injury, he would be liable to punishment."

§ 126. So far as the law thus stated goes — and it is stated with
extreme caution — it has been always recognized as bind- . ,

•' o And so m

ing in this country. Even where there is no pretence thiscoun-

. . try.

of insanity, it has been held in one state, that, if a man,
though in no danger of serious bodily harm, through fear, alarm, or
cowardice, kill another under the impression that great bodily
injury is about to be inflicted on him, it is neither manslaughter
nor murder, but self-defence ;i and though this proposition is too
broadly stated, as is remarked by Bronson, J., when commenting
on it afterwards in New York, and should be so qualified as to
make it necessary that there should be facts and circumstances

' Grainger v. State, 5 Yerg. 459.

123

§ 126.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

existing which would lead the jury to believe that the defendant
had reasonable (in proportion to his own lights) grounds for his
belief, yet with this qualification it is now generally received.^ And,
indeed, as shown by Mr. Justice Bronson, in the case just noticed,
after the general though tardy acquiescence in Selfridge's case,
where the same view was taken as early as 1805, by Chief Justice
Parker, of Massachusetts, and after the almost literal incorporation
of the leading distinctions of the latter case in the revised statutes
of New York, as well as into the judicial system of most of the
states, the point must be considered as finally at rest. Perhaps
the doctrine, as laid down originally in Selfridge's case, would have
met with a much earlier acquiescence had not the supposed political
bias of the court in that extraordinary trial, and the remarkable
laxity shown in the framing the bill and in the adjustment of bail,
led to a deep-seated professional prejudice which struck at even
such parts of the charge as were indisputably sound.^

1 Shorter v. People, 2 Comst. 193,
202; 4 Barb. 460; People v. McLeod,
1 Hill, 377 ; People v. Pine, 2 Barb.
566; State v. Scott, 4 Ired. 409;
Roberts v. State, 3 Ga. 310 ; Monroe v.
State, 5 Ga. 85 ; Com. v. Rogers, supra.
See generally Wh. Cr. L, 8tli ed. §§
38 et seq., for other cases. See also
Sloo's case, rep. 15 Am. Journ. Ins. 33 ;
McFarland's case, 8 Abb. N. Y. Pr. N.
S. 57.

2 In another work (Wharton's Cr.
L. 2d ed. 390 ; 8th ed. § 38), the pre-
sent writer went into a critical exami-
nation of Selfridge's case, and advanced
the opinion that the verdict, as well as
the preliminary proceedings, were in-
consistent with a just appreciation of
human life, and with the dignity of
public justice. This view is by no
means retracted ; and the gradual de-
velopment of the political correspon-
dence of those days shows that an ap-
proval of Selfridge's course — the shoot-
ing down by a man of thirty of a lad
of eighteen, then an undergraduate in

124

Harvard College, because the latter
thought proper to suppose that the
former, whose father he had just posted,
might be ready to avenge the insult —
was made a party test. Indeed, John
Adams (Cunning. Cor. 70) tells us that
" the great political parties in the state
were arranged under their respective
standards on the simple question of the
guilt or innocence of an individual
under a criminal accusation." But it
is due to the excellent jurist who pre-
sided at the trial to say that, however,
in the reception and adjustment of bail
— two thousand dollars — he may have
been influenced by those political heats
to which even the bench in those times
was subject, his charge is a fair state-
ment of the English common law, as
adapted to our social condition. And,
however great may have been the zeal
with which the case has been assailed,
it is now impossible to refuse to recog-
nize it as having been largely and
definitely influential in settling this
branch of American jurisprudence.

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 129.

§ 127. Delusions to constitute a defence must be objective as
distinguished from subjective. They must be delusions j.
of the senses, or such as relate to facts or objects, not must be
mere wrong notions or impressions ; and the aberration
in such case must be mental, not moral, so as to affect the intellect
of the individual. It is not enough that they show a diseased or a
depraved state of mind, or an aberration of the moral feelings, the
sense of right and wrong continuing to exist, although it may be in a
perverted condition. To enable them to be set up as a defence to an
indictment for a crime, they must go to such crime objectively ; ^. e.,
they must involve an honest mistake as to the object at which the
crime is directed.^

§ 128. The distinction before us may be illustrated by Levett's
case, which has never been questioned, and which has j^^^ t at d

been sanctioned by the most rigid of the common law t>y Levett's

case.
jurists, where it was held a sufficient defence to an in-
dictment for murder, that the mortal blow was struck by the de-
fendant under the delusion that the deceased was a robber, who had
entered the house.^ The delusion was objective, and therefore a
defence. Had the delusion been merely subjective — ^'. e. an un-
founded prejudice — it would have been no defence.

§ 129. In none of the cases which have just been noticed, is the
actual existence of danger an essential ingredient, and
certainly, as the intentions of an assailant are incapable to be deter-
of positive ascertainment, such a danger can never be "eftnd-'^°°^
absolutely shown to exist. It is true, that, when the ant's stand-

. ..... point.

point has not been directly before the judicial mind, dicta
have been thrown out to the effect that the danger must be such as
to alarm a reasonable man ; but, whenever the requisite state of
facts has been presented, courts have not hesitated to say that the
danger must be estimated, not by the jury's standard, but by that
of the defendant himself. Thus, an enlightened and learned judge
in Pennsylvania, one who would be among the last to weaken any
of the sanctions of human life, directed the jury that they should
take into consideration " the relative characters, as individuals," of

' R. V. Burton, 3 F. & F. 772 ; R. v. 2 Levett's case, Cro. Car. 438, 1 Hale,
Townley, 3 F. & F. 839 ; see also infra, 42, 474, Wharton's Cr. L. 8tli. ed. §
§§ 165, 170. 38.

125

§ 131.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

the deceased and the defendant, and, in determining whether the
danger really was imminent or not, to inquire " whether the deceased
was bold, strong, and of a violent and vindictive character, and the
defendant much weaker, and of a timid disposition." And to the
same effect will be found cases in other American courts elsewhere
more particularly noticed.^

§ 130. If, therefore, a delusion that a party is in danger, whether
g , such delusion be the result of insanity or of physical

lusionasto causes, is a justification of violence adequate to remove
the supposed danger — and the answer of the English
judges on this point corresponds with our own — it is difficult to
avoid the conclusion, that a delusion as to the amount of force neces-
sary to obviate the imagined attack should be equally potent. Thus,
for instance, it is stated by the English judges, that if the party is
under an insane delusion that the deceased is about to take his life,
and he kills him to prevent it, he is to be exempt from punishment.
The gist of this position consists in the delusion. If, therefore, by
an insane delusion, or depravation of the reasoning faculty, the de-
fendant insanely believes, either that the imagined evil is so intol-
erable as to make life-taking necessary or justifiable in order to
avert it, or that, while the evil is of a lesser grade, life-taking is an
appropriate and just way of getting rid of it, the same reasoning
applies. The principle may logically be stated thus : —

1. Objective delusion exempts from punishment the perpetrator
of an act committed under its influence.

2. The belief, unfounded in fact, that a party is in immediate
danger of life from another, is such a delusion.

3. Therefore, a party committing homicide under such delusion,
is not liable to punishment.^

§ 131. The minor premise, it will at once be seen, may be va-
ried, without weakening ' the conclusion, by inserting in its place

• See Wh. Cr. L. 8th ed. § 39 ; Wli. for the insane, that, in all cases where

on Horn. § 490. a party is acquitted on ground of insan-

2 It is important that by "punish- iiy, strict confinement should be di-

ment," as here used, should be under- rected, in such a way as will exempt

stood such punishment as is inflicted the community from any probable re-

on persons of sound mind. Itisessen- currence of such delirious outrages,

tial, however, to the policy of the pres- This will hereafter be more fully con-

ent more humane mode of treatment sidered : infra, § 775.

126

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 132.

any insane delusion, the existence of which would deprive So as to de-

lusion nfi to

the act of guiltj consciousness. That an insane delusion, the party
that the party attacked is not a human being, will have i^eino- a hu-
this effect, even though the party himself knows when ™'^" being,
committing the act that he is doing wrong, and is violating the laws
of the land, is illustrated by Lord Erskine, in a well-known case:
"Let rae suppose," he said, "the character of an insane delusion
consisted in the belief that some given person was any brute animal,
or an inanimate being (and such cases have existed), and that, upon
the trial of such a lunatic for murder, you, being on your oaths,
were convinced, upon the uncontradicted evidence of one hundred
persons, that he believed the man he had destroyed to have been a
potter's vessel ; that it was quite impossible to doubt that fact, al-
though to other intents and purposes he was sane — answering, rea-
soning, acting as men not in any manner tainted with insanity con-
verse and reason and conduct themselves. Suppose, further, that
he believed the man whom he destroyed, but whom he destroyed as
a potter's vessel, to be the property of another, and that he had
malice against such supposed person, and that he meant to injure
him, knowing the act he was doing to be malicious and injurious ;
and that, in short, he had full knowledge of all principles of good
and evil; yet would it be possible to convict such a person of mur-
der, if, from the influence of the disease, he was ignorant of the
relation in which he stood to the man he had destroyed, and was
utterly unconscious that he had struck at the life of a human
being ?"i

§ 132. An instance of an hallucination, founded on auricular
deception, is given in Charles Brockden Brown's novel g . ,
of Wieland, and is based on facts at the time well known lusion as to

, , . . . supernatu-

m rhiladelphia. A man oi excessively morbid tempera- rai com-
ment is so wrought up by ventriloquism, as to believe ™^^ *
himself under supernatural command to kill his wife. He does so
under the stress of what he conceives to be a pure legal necessity.
A similar case may be supposed in a sincere believer in spirit-rap-
ping, who is ordered by the medium to commit a violation of the
law. In this case the medium is the principal in the first degree,
but the actual perpetrator of the act, under the present condition of

' Winslow on Plea of Insanity, 6.

127

§ 133.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

the law, is entitled to a judicial affirmation of insanity. Similar
delusions in cases of sleep-drunkenness have been held to confer
irresponsibility. The case is like that of an executioner executing
the wrong person through a mistake in the warrant. If there is
negligence, the executioner is liable for negligent homicide. If
there is no negligence, then it is a case of misadventure, suppos-
ing the court issuing the warrant to have had jurisdiction.^ An-
other line of illustration may be found in those cases in which
officers of justice, in endeavoring to quell a riot, kill by mistake an
innocent by-stander.^

§ 133. A man fancies himself to be the Grand Lama, or Alexan-
der the Great, and kills another for an invasion of his
scrousnesT' sovereignty. He knows he is doing wrong ; perhaps,
™iisisrent ^^^^ ^ sensc of guilt, he conceals the body ; he may
^it^ have a clear perception of the legal consequences of the

irresponsi- ^ ^ • • <?

biiity. act. According to Mr. Wigan, such an association oi a

rule to this consciousness of the objective guilt and consequences of
^^^^*" an act, with an insane delusion as to its subjective rela-

tion, is readily explained on the principle of the duality of the hu-
man mind ; but, however this may be, it is a matter in which all
observers agree that the lunatic is, in most instances, conscious of
the moral relations of his conduct.^ Nor, even under the severe
tests of the older English text writers (who have, by their failure
to reach this point, demonstrated how dangerous it. is, with our im-
perfect experience, to attempt to codify or dogmatize the laws in a
few absolute propositions), has this truth evaded the practical recog-
nition of the courts. Thus, in a case where it was proved that the
defendant had taken the- life of another under the notion that he
was set about with a conspiracy to subject him to imprisonment and
death. Lord Lyndhurst, while quoting, with apparent entire acqui-
escence, Hale's doctrine, as affirmed by Sir James Mansfield in
Bellingham's case, felt himself at liberty to tell the jury that they
might " acquit the prisoner on the ground of insanity, if he did not

' See Wh. Cr. L. 8tli ed. § 462. sur alienation mentale, 2d ed., Par.

2 Wh. Cr. L. 8th ed. § 120, 1809, 156 ; Kiel, Fieberlehre,4Bd. 396 ;

3 Wigan on Insanity, etc., London, Groos, Die Lehre von der Mania sine
1844, 65; Winslow, Plea of Insanity, Delirio, Heidelberg, 1830 ; DeBoismont
16 ; Ray, Med. Jur. of Ins. § 17 ; Sie- on Halluc, Phil. 1853, 506.

bold, Gericht Med. § 219 ; Pinel, Traite
128

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 134.

know, when he committed the act, what the effect of it was with
reference to the crime of murder." Now, an acquittal would be
easy enough if it be necessary, in order to create responsibility,
that the party should know the eifect of the act with reference to a
question whose meaning, even to the court itself, appears to have
been enveloped in so much mist. But there can be no doubt, after
careful examination of the whole case, that the point Lord Lynd-
hurst decided was, that a man who, under an insane delusion, shoots
another, is irresponsible when the act is the product of the delusion.
Such, indeed, on general reasoning, must be held to be the law in
this country, and such will it be held to be when any particular case
arises which requires its application. The fact that against this
view militate certain expressions — obiter dicta — in recorded opin-
ions, as well as in the answers of the English judges, will not pre-
vent its practical recognition, any more than Lord Lyndhurst was
prevented, by the first class of authorities, from advising the acquit-
tal of Offord, and afterwards maintaining that the acquittal was con-
sistent with the very precedents now cited against it.'

§ 134. In America, the principle is too well settled to admit of
dispute. "Monomania," said Chief Justice Shaw, in 1844,^ in

' In People v. Coleman, N. Y., De- actor, can amount to that insanity

cember, 1881, Judge Davis charged the which in law disarms the act of crimi-

jury as follows: "In this state the nality. Under such notions of legal

test of responsibility for criminal acts, insanity life, property, and rights, both

where insanity is asserted, is the ca- public and private, would be altogether

pacity of the accused to distinguish be- insecure, and every man who, by brood-

tweeu right and wrong at the time and ing over his wrongs, real or imaginary,

with respect to the act which is the shall work himself up to an irresistible

subject of inquiry." He further said impulse to avenge himself or his friend

that the question for the jury to deter- or his party, can with imjjunity become

mine is "whetlier at the time of doing a self-elected judge, jiivy, and execu-

the act the prisoner knew what she was tioner in his own case, for the redress

doins and that she was doing a wrong ; of his own injuries or the imaginary

or, in other words, did she know that wjongs of his friends, his party, or his

she was shooting at the deceased, and country. But, happily, that is not the

that such shooting was awrongful act?" law, and whenever such ideas of in-

Thejudge further said : "No imaginary sanity are applied to a given case as

inspiration to do a personal or private the law (as too often they have been),

wrong, under a delusion, a belief that crime escapes punishment, not through

some great public benefit will liow from the legal insanity of the accused, but

it, where the nature of the act done and through the emotional insanity of

its probable consequences, and that it courts and juries."
is in itself wrong, are known to the ^ Com. v. Rogers, 7 Mete. 5Q0.

VOL. I.— 9 129

§ 136.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

So in Ame- an Opinion hereafter to be more fully quoted, " may oper-,
ate as an excuse for a criminal act," when "the delusion
is such that the person under its influence has a real and firm belief
of some fact, not true in itself, but which, if it were true, would
excuse his act ; as where the belief is that the party killed had an
immediate design upon his life, and under that belief the insane
man kills in supposed self-defence. A common instance is where
he fully believes that the act he is doing is done by the immediate
command of God, and he acts under the delusive but sincere belief
that what he is doing is by the command of a superior power, which
supersedes all human laws and the laws of nature.^''

§ 135. We have already noticed the distinction between objective
delusions (i. e., visual or other sensual mistakes), and sub-
between jective delusions {i.e., delusions as to matters of personal
aM^sub- duty). As to the first, we have seen that it is a defence if
jective de- a person non-neffliarently does an act which, if his senses

lusions. ^ o to J •> ^ ^

had not been mistaken, would not have been an infraction
of the law. With regard to subjective delusions, we must take
another test. Such delusions are no defence unless insane.

§ 136. If there be reason enough to dispel the delusion ; if the
^, defendant obstinately refuses, under such circumstances,

son can to listen to arguments by which the delusion could be

dispel sub- -,• ^^ -, -o I'l 111-

jective de- dispelled; it, on the contrary, he cherishes such delusion,
respons'ibii- ^^^ makes it the pretext of wrongs to others, then he is
ity exists. responsible for such wrongs. Thus, in a case of homi-
cide in Delaware, in 1851, the deceased being the defendant's wife,
the defence was delusion consisting in a belief that his wife was
untrue to him, that his children were begotten by his wife's inter-
course with another, and that sundry conjurations were being prac-
tised upon him, and the evidence showed that he was a shrewd and
wealthy business man, the court charged the jury that if a person,
otherwise rational, commit a homicide, though aff'ected by delusions
on subjects with which the act is connected, he is criminally re-
sponsible, if he were capable of the perception of consciousness of
right and wrong as applied to the act, and had the ability through
that consciousness to choose by an effort of the will whether he
would do the deed.^

' State u. Windsor, 5 Harr. 512. The plained of. The verdict of the jury,
charge in this case cannot be com- however, on the facts hereafter exhi-

130

INSANITY AS A DEFENCE tI) CHARGE OF CIIIME. [§ 139.

§ 137. The test, therefore, to which we are led is, was the delusion
pleaded as a defence the delusion of an insane person ? subjective
If not, he has reason enough to dispel or correct it ; and delusions

' .... must be

his refusal to do so does not invest him with irrespon- insane to
sibility. Thus the Mormon prophets claim, it is said, a spons*ibiu'
direct revelation permitting them to practise polygamy, ^^y-
Would they be permitted to plead their delusion in this respect as a
bar to an indictment ? Certainly not. And the reason is that they
are shrewd, sane men, and must, therefore, be held responsible for
their delusions.^

On the other hand, cases have not been infrequent in which
parents, charged with the homicide of their children, have been
permitted to show that they acted under the stress of what they
held to be a divine command ; and, when it has been satisfactorily
proved that such was their belief, they have been acquitted on the
ground of irresponsibility.

§ 138. What is the reason of this difference ? It is simply this:
that in the first case there is no proof offered of insanity, And proved
and the defendants, in fact, are men whose shrewdness *° ^® ^^^
and business abilities show them to be eminently sane. In the
other class of cases, there are no acquittals unless there is evidence
of insanity aliunde. A sane man who kills his child under the
stress of a supposed revelation, is as much responsible to penal
justice as is the Mormon who, under a similar plea, commits bigamy.
The question in each case is, was the defendant sane f Had he
reason enough to know what the law of the land was, and to know
he must not disobey it ? If he had, he must bear the penalty of
his disobedience. It is true that such insanity may be presumed
to some extent from the nature of the act. Where an affectionate
father kills his child, the presumption is strong, and requires little
additional proof. In other cases, where the act is simply the grat-
ification of passion, the presumption amounts to nothing. But in
either case, to entitle the delusion to be a defence, insanity must,
by some mode of proof, be made out.

§ 139. If, rejecting this view that general sanity is the test, we
say that the existence of a delusion by a sane person makes that

bited, cannot be sustained ; as the de- » Wh. Cr. L. 8th ed. §§ 84, 850, 1682,

fendant's mmd seems to have been so 1715 ; citing U. S. v. Reynolds, 98 U.

far shattered as to be without the S. 145.
power of dispelling the delusions.

131

§ 140.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

Where person irresponsible, we expand the definition of irre-

otiberwise sponsibility, not only dangerously, but unphilosophically.
ronsibii- Multitudes of men whom it would be both absurd and
ityremains. mischievous to treat as irresponsible have apparent de-
lusions or " fixed ideas." Several illustrations of this have been
already introduced.^ One or two others may now be added.

§ 140. Morel (1869) tells us of a French judge, whose official
lUustra- character was marked by the most exemplary efficiency,
tions. yf\^Q separated from his family, took a room in a hotel,

in which he permitted no visitors, and, when he went into the
street, took great pains, in crossing the lines of the trottoir, lest he
should, with such lines, make the form of a cross, which he held to
be bad luck. Indeed, we would find abundant illustrations of the
proposition before us, even if we should confine ourselves to the
history of judges — men whose time is spent in w^eighing evidence
and declaring law, and men who apply to others, as they render
for themselves, responsibility for all moral acts. Lord Kenyon
could never overcome his fear of poverty, and his nervous dread of
spending even a farthing except for necessities. Of Lord Stowell,
even after he had accumulated an enormous fortune. Sir Henry
Holland, who attended him as physician, writes : " Lord Alvanley's
description of him as a conceited Muscovy duck had an amusing
personal reality about it, felt even by those who knew his high
merits as a judge and master of international law. His house
curiously illustrated the habits of the man, in its utter destitution
of all the appliances of luxury and of comfort. The furniture was
never either changed or cleaned. Year after year I wrote pre-
scriptions there with the same solitary pen — the single one, I
believe, in his possession, and rarely used by himself after his
retirement from public business." Of Lord Erskine, Sir Henry
Holland tells us that " his mind, too, when I knew him, was clouded
by little foibles and superstitions. I can recollect a dinner at Sir
S. Romilly's, where his agitation was curiously shown in his reluc-
tance to sit down as one of thirteen at table, and by the relief he
expressed when the fourteenth guest came in."^ Lord Eldon labored
under the delusion, that, even after he had really made up his mind,

' See supra, §§ 34-52 ; also infra, §§ * See also Lady Clementina Davies's
723-743. Recollections of Society, vol. i. p. 10.

132

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 141.

and had so expressed himself lucidly and conclusively, there was
still ground for him to doubt ; and this habit was the cause of great
delay to suitors, and of great distress to himself. Lord Campbell
tells us that Lord Lyndhurst was governed by the delusions of
■physical, and Lord Brougham by those of intellectual vanity ; and
more than once in Lord Brougham's life was " his mind clearly off
its balance," and so wild and violent were at one time its perturba-
tions, that it was considered necessary to place him in seclusion.^
Among American judges, analogous illustrations may be found.
Judge Brackenridge, of Pennsylvania, is reported to have, on a hot
day, when holding court at Sunbury, gradually taken off his clothes,
till at last he was naked. Judge Baldwin, of the Supreme Court
of the United States, was a hypochondriac. A distinguished New
England judge, it is said, imagined that a dropsical affection under
which he labored was a sort of pregnancy. Yet in none of these
cases was insanity ever charged. And the reason is this, that,
whatever may have been the delusions or " fixed ideas" of these
eminent men, they had reason enough to conquer these delusions
whenever this was necessary to avoid public censure. When they
felt that they were beyond law, they would indulge their caprices.
When they felt the pressure of law, then these delusions would be
restrained. Thus Lord Chancellor Clare had, or feigned to have,
so unconquerable an animosity to Curran, that he could not listen
to that illustrious advocate. But when Curran met this by one of
the most powerful invectives that the records of forensic eloquence
preserve, the " irresistible impulse" was resisted. Lord Clare was
not insane. He was simply a man of strong prejudices as well as
of strong reason. AVhen necessary — though only when necessary
— reason would prevail.

§ 141. With the sane, therefore, so far from subjective delusion
creating irresponsibility, it is irresponsibility that creates Danger of
subiective delusion. Of this we might find many addi- assigning

'' ^ _ ... irresponsi-

tional illustrations. A monk has an ecstatic vision. He biiity to
tells the vision, and, instead of being rebuked, is ad-
mired ; and visions speedily fill every monastic cell. Or a romantic
poet, as was the case with so many in Germany when Napoleon left
to German thought no other province than that of imagination,

• Edinb. Rev., Apr. 1869. Camp. Brougham, p. 476.

133

§ 142.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

imagines some heroic epoch of the past to Avhich, like a troubadour
knight, he consecrates his song. He is admired, and his ecstasies
are imitated, until there springs up a whole school of Romanticists
as wild as Don Quixote. Or, at a period of high religious enthu-
siasm, a woman breaks into hysteria. Instead of being put under
medical care, she is injudiciously spoken of as exhibiting special
religious feeling ; and hysterical symptoms burst out on every side.
The fancy of an individual becomes, if unrebuked by public opinion,
the epidemic of an epoch.

§ 142. It being then accepted law that a delusion, by a sane
. . person, does not make him irresponsible, let us inquire

sanity a what, in cases of delusion, is the test of sanity. And
test

here two distinct psychical conditions are to be scru-
tinized.
First, when the delusion is, as Dr. Liman describes it, the residuum
of a prior insane state. Delirium has passed away, but the old dis-
ease still shows itself in the havoc it creates, sometimes in mental
debility, sometimes in the derangement of the mechanism of associa-
tion and perception, leading to chimeras, to absurd prejudices, if not
to hallucinations. This state, however, as Griesinger, a very capable
medical psychologist of late date (1871), argues, is not the restora-
tion of the equilibrium of sanity . The patients are not what they were
in a sane state, ijlus some errors or delusions. They are thoroughly
changed. There has been such a shock to the structure of the mind
that, although it is apparently calm, it does not act with uniformity.
The defect is internal ; something like that of a clock whose works
have been disturbed, and which, after being repaired, may strike a
series of hours accurately, and then go wrong. The mere presence
of a delusion, it is true, might not by itself prove the imperfectness
of the recovery. But it is otherwise when the delusion is harbored,
and when the patient has not power to throw it off. Thus it is that
in such cases, the fact often is, not that the patient retains but a
single insane delusion, but that an unsettled mind has taken the
particular channel of this one delusion to pour itself out. A dam
across one of our mountain streams is swept away, the stream first
running over what is the lowest point in the dam's crest. The diffi-
culty is, not the lowness of this point, but the height of the stream,
which, if it had not rushed over this point, would soon have rushed
134

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 144.

over another. Kraift-Ebing,^ speaking from an experience of almost
unequalled extent, tells us that the idea that a person may be sane
generally, but insane as to some particular delusions, is as incon-
sistent with practical observations as it is Avith sound psychology.
And Dr. Liman (1871) quotes a speaker in the Paris Academy,
as saying that a diligent search in all the Paris hospitals would
fail to bring to light a single case of " pure monomania" of this
class.''

§ 143. Secondly, however, there is a class to which Liman calls
attention, in whom insanity has not been established, gQ of he-
and yet as to whom, when delusions exist, the existence redity.
of such delusions may present a strong presumption of coming
disease. This, he tells us, is peculiarly the case with those with
hereditary disposition to sanity, with hypochondriacs, with " can-
didates" for paralysis. It is found that with such persons " fixed
ideas," as they are called, may exist, without developing into in-
sanity, during a whole lifetime, because the patient can control
them, because he is capable of recognizing them as prejudices, and
because they have not become a part of himself. He cannot, it
is true, dismiss the delusion, but he is conscious of its falsity, and
hence, if necessary, can nerve himself against its influence. But,
when this power over the delusion passes away ; when the delusion
not only cleaves to but controls the mind ; when it is not simply a
ray of eccentricity, but a radiating centre itself from which a series
of subordinate false lights emanate ; when the delusion, e. g.,
jealousy or fear, becomes a passion, growing on the mind on which
it feeds, cancerously absorbing into itself the mind's true life, and
sending forth over the system its own streams of disease ; when
there are, in particular, sympathetic physical aifections Avhich either
induce or respond to the mental disturbance, then we may infer that
the patient is mastered by the delusion instead of being its master.
In this class of cases the delusion is the commencement, in the
former, the sequence, of settled insanity.^

§ 144. As a natural result of the view above expressed, it is

• Vierteljahrschrift f. Gericht. Med. ^ gge ^\^q subject of delusions dls-

xiii. 1. cussed at large, infra, §§ 723—743.

2 See fully, infra, §§ 531-567, and
supra, § 49.

135

§ 145.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

Proof that allowable for the prosecution, when an insane " delusion

delusion is . r ^ c rr • ^

sane, com- IS Set up lor a aeience,to oner evidence to show that the
pe en . ^^ delusion" was sane, in other words, was an opinion which

ordinary processes of reasoning might have produced.^

§ 145. In accordance with the analogies already laid down,^ and
Delusion ^" obedience to the general line of American authority,
we must also hold that a delusion, even by a person whose
mind is so unsound that the delusion becomes involuntary
and incorrigible, is no defence to an indictment for a
crime not its immediate product.* Of this Dr. Casper gives us a

unconnect-
ed with
crime no
defence.

J Com. v. Haskell, 2 Brewst. 491. See
this viewed psychologically, infra, §§
393, 723, 743.

2 Supra, §§ 34-60.

3 1 Wh. Cr. L. 8th ed. § 41 ; State
I'. Lawrance, 57 Me. 574 ; State v^
Huting, 21 Mo. 464 ; Bovard v. State,
30 Miss. 600 ; Com. v. Mosler, 4 Penn.
St. 264 ; State v. Gut, 13 Minn. 341. In
New York, in Freeman's case. Beards-
ley, C. .J., said, that " A state of gene-
ral insanity, the mental powers being
wholly perverted or obliterated, would
necessarily preclude a trial ; for a being
in that deplorable condition can make
no defence whatever. Not so, how-
ever, where the disease is partial, and
confined to one subject, other than the
imputed crime and contemplated trial.
A person in this condition may be fully
competent to understand his situation
in respect to the alleged offence, and
to conduct his defence with discretion
and reason. Of this the jury must
judge, and they should be instructed,
that, if such is found to be his condi-
tion, it will be their duty to pronounce
him sane. In the case at the bar, the
court professed to furnish a single cri-
terion 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 of
the moral qualities of most actions, he

136

may, at the same time, as to some one
in particular, be absolutely insane,
and consequently as to this be incapable
of judging accurately between right
and wrong. If the delusion extends
to the alleged crime, or the contemplated
trial, the party manifestly is not in a
fit condition to make his defence, how-
ever sound his mind 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 dis-
tinguishing between right and wrong.
Had the instruction been, that the pri-
soner 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 woiild have been but
little fear that the jury could be mis-
led, for a person who justly appre-
hends the nature of a charge made
against him, can hardly be supposed
to be incapable of defending himself in
regard to it in a rational way. At the
same time it would be well to impress
distinctly on the minds of jurors, that
they are to gauge the mental capacity
of the prisoner, in order to determine
whether he is so far sane as to be com-
petent in mind to make his defence, if
he has one ; for, unless his faculties
are equal to the task, he is not in a fit

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 145.

striking illustration. A merchant, named Schraber, was convicted
of cheating by false pretences and false information, and was sen-

condition to be put on his trial. For
the purpose of such a question, the
law regards a person thus disabled by
disease as non compos mentis, and he
should be pronounced unhesitatingly-
insane within the true extent and
meaning of this statute.

"Where insanity is interposed as a
defence to an indictment for an alleged
crime, the inquiry is always brought
down to the single question of a capa-
city to distinguish between right and
wrong at the time when the act was
done. In such case, the jury should
be instructed, that ' it must be clearly
shown that, at the time of committing
the act, the party accused was labor-
ing under such a defect of reason, from
disease of the mind, as not to know the
nature and quality of the act he was
doing ; or, if he did know it, that he
did not know he was doing what was
wrong. The mode of putting the latter
part of the question to the jury, on
these occasions, has generally been
whether the accused, at the time of
doing the act, knew the difference be-
tween right and wrong ; which mode,
though rarely, if ever, leading to any
mistake with the jury, is not deemed
so accurate, when put generally and
in the abstract, as when put with re-
ference to the party's knowledge of
right and wrong in respect to the very
act with which he is charged.' This
is the rule laid down by all the Eng-
lish judges but one, in the late case
of McNaghten, while pending in the
house of lords. (10 C. & F. 200.) In
the case of Oxford, Lord Denman, C. J.,
charged the jury in this manner : ' The
question is, whether the prisoner was
laboring under that species of insanity
which satisfies you that he was quite
unaware of the nature or character

and consequences of the act he was
committing ; or, in other words, whe-
ther he was under the influence of a
diseased mind, and was really uncon-
scious, at the time he was committing
the act, that it was a crime.' The in-
sanity must be such as to deprive the
party charged with crime, of the use
of reason in regard to the the act done.
He may be deranged on other subjects,
but, if capable of distinguishing be-
tween right and wrong in the particular
act done by him, he is justly liable to
be punished as a criminal. Such is
the undoubted rule of the common law
on this subject. Partial insanity is
not, by that law, necessarily an excuse
for crime, and can only be so where it
deprives the party of his reason in re-
gard to the act charged to be criminal.
Nor, in my judgment, was tiie statute
on this subject intended to abrogate or
qualify the common law rule. The
words of the statute are : ' No act done
by a person in a state of insanity can
be punished as an oflence.' The clause
is very comprehensive in its terms,
and at first blush might seem to ex-
empt from punishment every act done
by a person who is insane upon any
subject whatever. This would, indeed,
be a mighty change in the law, as it
would afi'ord absolute impunity to
every person in an insane state, al-
though his disease might be confined
to a single and isolated subject. If
this is the meaning of the statute,
jurors are no longer to inquire whether
the party was insane ' in respect to the
very act with which he is charged,'
but whether he was insane in regard
to any act or subject whatever ; and,
if they find such to have been his con-
dition, render a verdict of not guilty.
But this statute is not so understood

137

§ 146,] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

tenced to imprisonment for six years. On an application to the
court to reconsider the sentence, insanity Avas set up, and it ap-
peared that the prisoner either felt or feigned a belief that he
was a legitimate son of the late Duke Charles of Mecklenburg
Strelitz ; which certainly, if not a mere fiction, was an insane
delusion. Much reason existed to believe that the whole thing was
simulated ; but, independently of this, the court was clear that, as
the mania, if real, had no connection with his crime, it formed no
ground for a revision of the sentence.^

3. Where the de.fendant, being insane, is forced hy a morbid and
irresistible impulse to do the particular act.

\^As to the alleged ''^ monomaniac''^ impulses, see infra, §§ 567-679.
As to the question of motive, infra, §§ 401-404.]

§ 146. Here, at the outset, we are arrested by a difficulty of
Irresistible nomenclature. What is " irresistible impulse" that is
disti'nct ^®^® declared to be a defence ? And, in order to clear
from moral ^j^e question at the outset from ambiguities, it is proper

insanity '- o / x x

and pas- to remark —

(a) " Irresistible impulse" is not " moral insanity,"
defining " moral insanity" to consist of insanity of the moral system,
coexisting with mental sanity. "Moral insanity," as thus defined,
has no support, as will hereafter be seen,^ either in psychology
or law.

(J) Nor is "irresistible impulse" convertible with passionate
propensity, no matter how strong, in persons not insane.^ In other
words, the " irresistible impulse" of the lunatic, which confers irre-
sponsibility, is essentially distinct from the passion, however violent,
of the sane, which does 7iot confer irresponsibility. As this dis-

byme. I interpret it as I sliould have since, I am not aware that it Las, at

done if the words had been, 'no act, any time, been held or intimated by

done by a person in a state of insanity any judicial tribunal, that the statutje,

in respect to such act, can be punished had abrogated, or in any respect modi-

as an offence.' The act, in my judg- tied, this principle of the common law."

ment, must be an insane act, and not Freeman v. People, 4 Deuio, p. 27.

merely the act of an insane person. ' See appendix to 3d ed. of this work.

This was plainly the rule before the § 834.

statute was passed, and, although that ^ Infra, §§ 163-189, 531-567.

took place more than sixteen years ' See infra, §§ 403—478.

138

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 147.

tinction is of great importance, we will now notice the reason on
which it rests.

§ 147. (1) Supposing the mind to be sane, and that there is a
capacity of judging between right and wrong, there is
psychologically no impulse which the law can treat as sane no
irresistible. The will is either free, which settles the |™esistibie
question at once ; or it is directed by the strongest motives,
as the necessitarian holds. Now, taking the latter hypothesis, the
question arises, supposing the will to follow by necessity the
strongest motive, whether it is just to punish the wrong-doer for
such necessary act. That it is, is affirmed by the leading repre-
sentatives of the necessitarian school. " It is said," says Mr. Bain,^
" that it would not be right to punish a man unless he were a free
agent ; a truism, if by freedom is meant only the absence of out-
ward compulsion ; if in any other sense, a piece of absurdity. If
it is expedient to place restrictions upon the conduct of sentient
beings, and if the threatening of pain operates to arrest such con-
duct, the case for punishment is made out. We must justify the
institution of law, to begin with, and the tendency of pain to pre-
vent the actions that bring it on, in the next place. . . . Grant-
ing these two postulates, punishability (carrying with it, in a well
constituted society, responsibility), is amply vindicated.
Withdraw the power of punishing, and there is left no conceivable
instrument of moral education. It is true that a good moral disci-
pline is not wholly made up of punishment ; tlie wise and benevolent
parent does something, by the methods of allurement and kindness,
to form the virtuous dispositions of his child. jStill, we may ask,
was ever any human being educated to the se7ise of right and wrong
without the dread of pain accojiipanying forbidden actions? It
may be affirmed with safety, that punishment or retribution, in some
form, is one-half of the motive power to virtue in the very best of
human beings, while it is more than three-fourths in the mass of
mankind." Now, erroneous as is Mr. Bain's position that the pri-
mary ground of punishment is prevention to be effected by fear,^
there can be no question that on the necessitarian hypothesis his
reasoning is sound.

' Mental and Moral Science, London, * gee this shown in Wh. Cr. L. 8th
1868, p. 404 ed. §§ 1 et seq.

139

§ 149.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

§ 148. Mr. J. S. Mill, in his examination of Sir W. Hamilton's
philosophy, supposes the case of a race of men whose
mentneces- hereditary tendencies to mischief are as great and uncon-
ven^ crime' ^rollable as those of lions and tigers ; than which no case
brought up by the advocates of the unpunishability of
those subject to irresistible propensities could be more strong.
Having supposed such men, he asks whether we would not treat
them precisely as we would a wild beast, even though we supposed
them to act necessarily. The highest theory of fatalism, he infers
from this, is not inconsistent with the infliction of penalties on the
offender. The question that arises, then, is, is such punishment
just ? Can we justly punish a man for that which he cannot help ?
And he argues that we certainly can, if announcing beforehand that
such offenders are to be punished, and supporting the announce-
ment by inflexible and uniform execution, is the way to keep them
from committing the obnoxious act. If the end — the prevention of
crime — is justifiable, then the necessary means for the prevention
of crime are also justifiable. And despotic as is the assumption
that punishment is to be inflicted, not as a matter of justice in
obedience to a preannounced law, but as a matter of policy irre-
spective of deserts, the conclusion legitimately follows from Mr.
Mill's premises.

§ 149. In cases of low mental and moral culture, such as those
Fear ^^^^ Supposed, the will, when on the brink of some for-

check on bidden act, is swayed by two conflicting motives, passion

passion. . .

and tear, i^ear, m such cases, is the only check on pas-
sion. If it is removed, passion has no remaining barrier in its way.
We may notice this in the case of young children, who are often
deterred from wrong acts in proportion as the fear of punishment
is impressed on their minds. Nor does this characteristic belong
only to children or to persons of low grade of intelligence. It was
frequently said of Napoleon I., and of General Jackson, that each
knew when he could with impunity give way to bursts of apparently
irresistible rage ; but that each knew when this rage was to be con-
trolled. The cases are not infrequent in which men, presuming on
the cowardice or feebleness of their intended victim, rush into
violence which they would readily have restrained had they known
that they would have received blow for blow. Wer sicJi zuni Schaf
macht, is a German proverb, denfrisst der Wolf ; or, as we may
140

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 150.

paraphrase it, government, by becoming a sheep, creates the social
wolf. The state which declares that no irrepressible passion shall
be punished evokes the irrepressible passion it exempts. Fear is a
salutary check on passion ; and punishment must be applied by
government with such even hand that fear will be real and reason-
able. Of course, as Mr. Mill well remarks, this does not apply to
cases where the offender has not reason to understand that the
guilty act is punished by the state, nor does it apply when he is
laboring under an insane delusion which sets up what he holds to
be a higher law.

& 150. (2) There is no means of determining what Irresisti-

^ ^ ^ . ,, -rr. ^ bilitj im-

constitutes "-irresistibility. ^ If a man has reason possible to
enough to deplore a criminal desire, and power enough

1 "Irresistible impulses" are recog-
nized by all philosophers, profane and
sacred. Ovid, in a well-known pas-
sage, thus speaks : —
Sed trahit invitam nova vis, aliudque

cupido.
Mens aliud suadet : video meliora pro-

boque,
Deteriora sequor.

And so St. Paul : " The good that I
would I do not ; but the evil which I
would not, that I do. . . 1 see another
law in my members, warring against
the law of my mind, and bringing me
into captivity to the law of sin which
is in my members." No doubt the
impulse, viewed thus as an insulated
force, is irresistible in producing the
sin. But, on the other hand, reason,
in its right sense, is irresistible in sup-
pressing the impulse. Reason may ope-
rate either through love or fear ; and
hence it is incumbent on all systems
of ethics to cherish these motives. No
doubt it is a law of our nature that the
will follows the strongest motive. But
the irresistibility of the inferior motive,
when unrestrained, is the crowning
reason for promulgating and enforcing
superior motives, as modes of restrain-
ing.

Griesinger doubts whether impulses
are irresistible even among the insane.
" Whether, and to what extent, certain
directions of the will and impulses in
the insane, particularly such as lead to
criminal acts, are irresistible, is a ques-
tion which can scarcely ever be an-
swered with certainty. Few of the acts
of the insane have the character of
forced, purely automatic movements ;
in mania also, according to the testi-
mony of individuals who have recovered,
many of the wild desires could often be
restrained ; the criminal deeds of the
insane are not generally instinctive.
The loss of freewill (or, if we choose,
irresponsibility), therefore, seldom de-
pends on the fact of inability to have
abstained from the act committed, or
that the normal conditions of volition
have been completely suspended. The
causes of this loss of freewill chiefly
depend on quite a different cause, they
depend on violent excitation of the
emotions, or on incoherence, on false
reasoning proceeding from delirious
conceptions, hallucinations, etc., and
on the circumstances mentioned in §
27." — Griesinger^ s Mental Pathology,
Sydenham Ed. (1867), § 47.

2 See infra, § 585.

141

§ 151.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

to take steps to prevent its gratification, the law holds him re-
sponsible if he does not take such steps. This is recognized in
those familiar cases in which it is held, that, where a man whose
passions are aroused kills an assailant, the act is not excusable
unless it appears that the accused had no means of retreat. If the
" monomaniac" can retreat from his " monomania," it ceases to
supply him with a defence.

§ 150 a. (3) On the materialistic hypothesis, from whose advo-
cates the theory of the non-responsibility for irresistible
ti(f theory" impulses Springs, all volitions are the result of material
of volition influences ; and hence there is no volition that may not

incorrect. ... . .

be viewed as irresistible, and no crime that is not a phy-
sical disease. But the answer is, that the same reasoning that ap-
plies to prevent punishment for any particular crime would apply to
prevent punishment for any crime whatsoever.

§ 151. It should be remembered, however, that while " irresisti-
ble impulse," the mind being sane, is no defence to crime,
Passion is a . . , , .

mitigating yet Violent passion is to be taken into account as a miti-
e emea . gating element, and that the peculiar temperament of
the ofl"ender is to be gauged for the purpose of estimating whether
the provocation was such as to create hot blood, and whether there
was adequate cooling time. A sane person may, from epilepsy, or
from prior insanity, or from nervous or physical derangements, or
from hereditary taint, be peculiarly susceptible to excitement ; and,
as the law treats assaults committed in hot blood as of a lower
grade than those committed deliberately, this excitability may pro-
perly be considered in determining whether the blood at the time
was hot. That, psychologically, this varies with temperament is
well known. The ordinary signs of passion (acceleration of arterial
pulse, congestive flushings, increased activity of secretions and
excretions) are diiferent with difl"erent patients. Hence epileptic,
nervous, and cerebral diseases, and hereditary tendency, may be
put in evidence to lower the grade of the ofience, though they do
not amount to insanity. In so doing, we but follow the authorities
which declare that drunkenness, though no defence to crime, may
be used to show that an assault was not deliberate.^

' Supra, § 122; infra, § 200; Wh. "monomaniac" impulses, infra, §§
Cr. L. 8th ed. § 47 ; see, as to alleged 567-679,

142

INSANITY AS A DEFENCE TO CHARGE OP CRIME. [§ 152.

§ 152. It being therefore settled that " irresistible impulse," to
constitute a defence, must be that of a person otherwise ^^tijoj-jtigg
insane, we proceed to consider the authorities that estab- for defence
lish such impulse, under such conditions, as a defence, tibieim-
In doing so, it must be at the outset conceded that, by ^" ^^*
the English courts, this defence, as here stated, is rejected. No
person, however insane, can, by the law*as now (1882) expounded
by those courts, be acquitted of a crime, if it appear to the satis-
faction of the jury that he knew the nature and quality of the act
he was doing, or, if he did not know it, if he knew that the act was
wrong.^ But, if, as hereafter will be shown, it is demonstrable
that there sometimes is, among insane persons, an " irresistible
impulse" to an act coexisting with a knowledge that it was wrong,
then comes the question whether lunatics of this stamp are legally
punishable for such acts. That they are not, the tendency of
American authority is to maintain. And even in England we find
Mr. Stephen, in his work on English Criminal Law^ — a work as
remarkable for philosophical symmetry as for legal accuracy —
stating (1863) the questions to be, " in popular language. Was it
his act? Could he help it? Did he know it was wrong ?''^ He
goes on further to say : " It would be absurd to deny the possi-
bility that such (irresistible) impulses may occur, or the fact that
they have occurred, and have been acted on. Instances are also
given in which the impulse was felt and was resisted. The only
question which the existence of such impulses can raise in the
administration of criminal justice is, whether the particular impulse
in question was irresistible as well as unresisted. If it were iri-e-

' A mere uncontrollable impulse of fit, though there is nothing before or

the mind, coexisting with the full pes- after the act to indicate it, and though

session of the reasoning powers, will there is some evidence of design and

not warrant an acquittal on the ground malice. R. v. Richards, 1 F. & F. 87.

of insanity ; the question for the jury The circumstance of a person hav-

being, whether the prisoner, at the ing acted under an irresistible intlu-

time he committed the act, knew the ence to the commission of homicide is

character and nature of the act, and no defence, if at the time he committed

that it was a wrongful one. R. v. the act he knew he was doing what

Barton, 3 Cox, C. C. 275 — Parke. was wrong. R. v. Haynes, 1 F. & F.

Where a person is in a state of mind 666^Bramwell. See also Edmunds's

in which she is liable to fits of mad- case, infra, §§ 165-167.

ness, it is for the jury to consider whe- * London, 1863, p. 91.
ther the act done was during such a

143

§ 153.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

sistible, the person accused is entitled to he acquitted, because the
act was not voluntary and was not properly his act. If the
impulse was resistible, the fact that it proceeded from disease is no
excuse at all."^

§ 153. To the illustrations adduced by others of the coexistence
Instances ^^ ^ knowledge that an act was wrong with its commis-
ofirrespon- g^Qjj under circumstances which confer entire irresponsi-

sibility CO- _ _ ^ _ *

existing hility, the present writer may be permitted to add one
conscious- within the range of his own experience. A man named
°^^®" John Billman, Avho had been sent to the Eastern Peni-

tentiary of Pennsylvania for horse stealing, murdered his keeper
under circumstances of great brutality, and yet with so much inge-
nuity as to elude suspicions of his intentions and almost conceal his
flight. He hung a noose on the outside of the small window which
is placed in the door of the cells to enable persons outside to look
in. He then induced the keeper, in order to look at something on
the floor directly at the foot of the door, to put his head entirely
through. The noose was then drawn, and but for an accident the
man would have been sufi"ocated. Notwithstanding this attempt,
the same keeper was inveigled into the cell alone, a few days after-
wards, on the pretence of Billman being sick, and was there killed
by a blow on the head with a piece of washboard. Billman un-
dressed him, changed clothes with him, placed him on the bed in
such a position as to induce the general appearance of his being
there himself, traversed in his assumed garb the corridor with an
unconcerned air, addressed an apparently careless question to the
gate-keeper, and sauntered listlessly down the street on which the
gate opened. He Avas, however, soon caught ; but his insanity was
so indisputable that the prosecuting authorities, after having insti-
tuted a careful and skilful medical examination, became convinced
of his irresponsibility, and united upon the trial in asking a verdict
of acquittal on the ground of insanity. He was then remanded to
confinement, under the Pennsylvania practice ; and some time after-
wards, when in a communicative mood, disclosed the fact of his
having several years back murdered his father under circumstances

' See McFarland's case, 8 Abb. N. Committee the same view is taken.
Y. Pr. N. S. 57. In Sir J. Stephen's Wh. Cr. L. 8th ed. § 45.
testimony before the English Homicide

144

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 156.

Avhich he detailed with great minuteness and zest. Inquiries were
instituted, and it was found that he had told the truth. The father
had been found strangled in his bed ; the son had been arrested
for the crime ; but so artfully had he contrived the homicide that
he was acquitted through an alibi, got up by means of a rapid ride
at midnight and a feigned sleep in a chamber into which he had
clambered by a window. Here, then, was not only a sense of
guilt, but a keen appreciation of the consequences of exposure, long
harbored intention, and intelligent design.

§ 154. A well-known illustration of the same sense of accounta-
bility among lunatics, as a class, is to be found in an anecdote
related by Dr. Winslow. When Martin set York Minster on fire,
a conversation took place among the inmates of a neighboring lunatic
asylum, having reference to this general topic. The question was
whether Martin would be hanged, when, in the course of the con-
versation, one madman announced to the others the opinion, in which
they all acquiesced, that Martin would not be hanged, because he
was " one of themselves." It certainly will not be maintained that
a consciousness of the legal relations of crime, such as this remark
exhibited, confers responsibility where it does not otherwise exist.

§ 156. With these may be cited a leading case before Judge
Story, in which that eminent jurist directed the acquittal of a young
Avoman, who during puerperal insanity drowned her child, though
there was no proof that she was not entirely conscious of the nature
of the act.^

In the same class fall those cases in which a parent, insane with
melancholy, kills his children, either in execution of some supposed
divine command, or to save them from supposed future misery,
knowing at the same time the illegality of the act.^

§ 156. The first case in which this question was gravely con-
sidered is that of Commonwealth v. Rogers, before the ^ . .

° , Opinion of

supreme court of Massachusetts, in the spring of 1844.3 Cbief Jus-
Chief Justice Shaw — whose conservative tendencies on
the great sanctions of human life cannot be suspected — found him-
self, in preparing his charge, embarrassed by the conflict between

1 U. S. V. Hewson, 7 Bost. L. R. 361. » 7 Mete. 500.

2 Supra, §§ 132, 137 ; infra, §§ 529,
582, 636, 837, 839.

VOL. I.— 10 145

§ 156.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

the dogmas of the older judges and the necessities of the particular
case ; and there is an evident struggle on his part to preserve as
much as he could of the letter of the former and at the same time
to establish a principle hj which the latter could be properly re-
spected. He begins — we cite from the authorized report — by lay-
ing down two propositions of great breadth. " In order to consti-
tute a crime," he says, " a person must have intelligence and-
capacity enough to have a criminal intent and purpose ; and, if his
reason and mental powers are either so deficient that he has no will,
no conscience, or controlling mental power, or if, through the over-
whelming violence of mental disease, his intellectual power is for
the time obliterated, he is not a responsible moral agent, and is not
punishable for criminal acts. These extremes," he then proceeds
to state, " are easily distinguished, and not to be mistaken. The
difficulty lies between these extremes, in the cases of partial insanity,
where the mind may be clouded and weakened, but not incapable
of remembering, reasoning, and judging ; or so perverted by insane
delusion, as to act under false impressions and influences," To
such cases — to those where the mind is not " incapable of judging,"
etc., and to those where it acts " under false impressions and influ-
ences"— and to such alone, he applies the " right and wrong" test;
reserving it to a very small sphere of action, since the defence of
insanity would scarcely be ventured where there Avas both a capa-
city to judge, reason, and remember, and a freedom from false
" impressions and influences." Taking up the particular defence
of monomania, which was that advanced in the case before him, he
proceeds to state the law, with a liberality in entire accordance with
the weight of medical authority. " Tbis" (monomania) " may
operate as an excuse for a criminal act in one of two modes. 1.
Either the delusion is such that the person under its influence has
a real and firm belief of some fact, not true in itself, but which, if
it were true, would excuse his act: as where the belief is that the
party killed had an immediate design upon his life, and under that
belief the insane man kills in supposed self-defence. A common
instance is where he fully believes that the act he is doing is done
by the immediate command of God, and he acts under the delusive
but sincere belief that Avhat he is doing is by the command of a
superior power which supersedes all human laws and the laws of
nature. 2. Or this state of delusion indicates to an experienced
146

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 157.

person that the mind is in a diseased state ; that the known ten-
dency of that diseased state of the mind is to break out into sudden
paroxysms of violence, venting itself in homicide, or other violent
acts toward friend and foe indiscriminately ; so that, although there
were no previous indications of violence, yet the subsequent act,
connecting itself with the previous symptoms and indications, will
enable an experienced person to say, that the outbreak was of such
a character that, for the time being, it must have overborne memory
and reason ; that the act was the result of the disease and not of a
mind capable of choosing ; in short, that it was the result of uncon-
trollable impulse, and not of a person acted on by motives, and
governed by will." . . . "Are the facts of such a character,
taken in connection with the opinion of professional witnesses, as
to induce the jury to believe that the accused was laboring for days
under monomania, attended with delusion, and did thus indicate
such a diseased state of the mind, that the act of killing the warden
was to be considered an outbreak or paroxysm of disease, which for
the time being overwhelmed and superseded reason and judgment,
so that the diseased was not an accountable agent ? If such was
the case, the accused is entitled to an acquittal,"

§ 157. In the fall of 1846., a similar defence was started before
three of the judges of the supreme court of Pennsyl-
vania, then holding an oyer and terminer in Philadelphia. Justice
In his charge to the jury, Chief Justice Gibson — a most
able judge, thoroughly disciplined in and wedded to the common law,
but at the same time endowed with a remarkable zest for and a
mastery over collateral sciences — after, in the first place, vehemently
repudiating the doctrine that partial insanity excuses anything but
its direct results, and sliding, in reference to such cases, into the
" right and wrong" tests, proceeds : " But there is a moral or homi-
cidal insanity, consisting of an irresistible inclination to kill or to
commit some particular offence.^ There may be an unseen ligament
pressing on the mind, drawing it to consequences which it sees hut
cannot avoid, and placing it under a coercion which, while its re-
sults are clearly perceived, is incapable of resistance. The doctrine

' The charge was oral, having been which may account for the want of
reported by the present writer, and but literal exactness in this and other ex-
hastily revised by the judge himself, pressions.

147

§ 158.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

which acknowledges this mania is dangerous in its relations, and
can be recognized only in the clearest cases. It ought to be shown
to have been habitual, or at least to have evinced itself in more
than a single instance. It is seldom directed against a particular
individual ; but that it may be so, is proved by the case of a young
woman who was deluded by an irresistible impulse to destroy her
child, thougJi aware of the heinous nature of the act. The fre-
quency of this constitutional malady is fortunately small, and it is
better to confine it within the strictest limits. If juries were to
allow it as a general motive, operating in cases of this character,
its recognition would destroy social order as well as personal safety.
To establish it as a justification in any particular case, it is neces-
sary either to show, by clear proofs, its contemporaneous existence
evinced by present circumstances, or the existence of an habitual
tendency developed in previous cases, becoming in itself a second
nature."^

§ 158. In a still earlier case in Pennsylvania, Judge Lewis,

then presiding in Lycoming county, and afterwards Chief
Lewis. ^^ Justice of Pennsylvanvia, thus spoke : " Moral insanity"

(not, however, the moral insanity of Pinel, but that which
consists of "irresistible impulse") "arises from the existence of
some of the natural propensities in such violence that it is impossi-
ble not to yield to them. It bears a striking resemblance to vice,
which is said to consist in an undue excitement of the passions and
will, and in their irregular or crooked actions leading to crime.
It is therefore to be received with the utmost scrutiny. It is not
generally admitted in legal tribunals as a species of insanity which
relieves from responsibility for crime, and it ought never to be
admitted as a defence, until it is shown that these propensities exist
in such violence as to subjugate the intellect, control the will, and
render it impossible for the party to do otherwise than yield.
Where its existence is fully established, this species of insanity re-
lieves from accountability to human laws. But this state of mind
is not to be presumed without evidence, nor does it usually occur
without some premonitory symptoms indicating its approach."^

1 Com. V. Mosler, 4 Penn. St. 264; and able judge; Lewis Cr. Law, 404;
see infra, § 174. by Judge Edmonds (2 Am. Jour, of Ins.)

2 The same view was, some years and Judge Whiting (Freeman's Trial
after, repeated by the same enlightened — Pamph.). In 1858, in John Freeth's

148

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 159.

§ 159. In Illinois, in 1863, it was declared by the supreme
court" that a safe and reasonable test would be, that, whenever

case, tried before the Philadelphia oyer
and terminer, Judge Ludlow charged
the jury partly as follows : —

"Besides the kinds of insanity to
which I have already referred, and
which strictly speaking affect the mind
only, we have moral or homicidal in-
sanity, which seems to be an irresistible
inclination to kill, or to commit some other
particular offence. We are obliged by
the force of atithority to say to you, that
there is such a disease known to the
law as homicidal insanity ; what it is,
or in what it consists, no lawyer or
judge has ever yet been able to explain
with precision ; physicians, especially
those having charge of the insane,
gradually, it would seem, come to the
conclusion, that all wicked men are
mad, and many of the judges have so
far fallen into the same error as to ren-
der it possible for any man to escape
the penalty which the law affixes to
crime.

" We do not intend to be understood
as expressing the opinion that in some
instances human beings are not afflicted
with a homicidal mania, but we do in-
tend to say that a defence consisting
exclusively of this species of insanity
has frequently been made the means
by which a notorious offender has
escaped punishment. What, then, is
that form of disease, denominated homi-
cidal mania, which will excuse one for
having committed a murder ?

" Chief Justice Gibson calls it, ' that
unseen ligament pressing on the mind,
and drawing it to consequences which
it sees but cannot avoid, and placing it
under a coercion which, while its results
are clearly perceived, is incapable of
resistance' — ' an irresistible inclination
to kill.'

" If by moral insanity it is to be un-

derstood only a disordered or perverted
state of the affections or moral powers
of the mind, it cannot be too soon dis-
carded as affording any shield from
punishment for crime ; if it can be
truly said that one who indulges in
violent emotions, such as remorse,
anger, shame, grief, and the like, is
afflicted with homicidal insanity, it
will be difficult, yes, impossible, to say
where sanity ends and insanity begins ;
for, by way of illustration, the man
who is lashed into fury by a fit of anger
is in one sense insane.

"As a general rule it will be found
that instances are rare of cases of homi-
cidal insanity occurring wherein the
mania is not of a general nature, and
results in a desire to kill any and every
person who may chance to fall within
the range of the maniac's malevolence ;
as it is general, so also is it based upon
imaginary and not real wrongs ; if it is
directed against a particular person (as
is sometimes the case), then also the
cause of the act will generally be im-
aginary ; when, therefore, the jury find
from the evidence that the act has not
been the result of an imaginary but
real wrong, they will take care to ex-
amine with great caution into the cir-
cumstances of the case, so that with
the real wrong, they may not also dis-
cover revenge, anger, and kindred
emotions of the mind to be the real
motive which has occasioned the homi-
cidal act.

"Orfilahas said, 'that the mind is
always greatly troubled when it is agi-
tated by anger, tormented by an un-
fortunate love, bewildered by jealousy,
overcome by despair, haunted by ter-
ror, or corrupted by an unconquerable
desire for vengeance. Then, as is com-
monly said, a man is no longer master

149

§ 159.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

Insane un- it should appear from the evidence that, at the time of
bie impulse doing the act charged, the prisoner was not of sound mind,

of himself, his reason is affected, his
ideas are in disorder, he is like a mad-
man. But in all these cases a man does
not lose his knowledge of the real
relations of things ; he may exaggerate
his misfortune, but this misfortune is
real, and if it carry him to commit a
criminal act, this act is perfectly well-
motived.'

" The man who has a clear concep-
tion of the various relations of life, and
the real relation of things, is not often
afflicted with insanity of any descrip-
tion. He may become angry, and in
a fit of temper kill his enemy, or even
his friend, but this is not, and I hope
never will be, called in courts of justice
insanity. Again, one who is really
driven on by an uncontrollable impulse
to the commission of a crime, will be
able to show its ' contemporaneous
existence evinced by present circum-
stances, or the existence of an habitual
tendency developed in particular cases,
and becoming in itself a second nature,'
and ought further to show that the
mania ' was habitual, or that it had
evinced itself in more than one in-
stance.'

"Chief Justice Lewis has said that
moral insanity ' bears a striking resem-
blance to vice;' and further, ' it ought
never to be admitted as a defence until
it is shown that these propensities exist
in such violence as to subjugate the
intellect, control the will, and render
it impossible for the party to do other-
wise than yield.' And again, ' this
state of mind is not to be presumed
without evidence, nor does it usually
occur without some premonitory symp-
toms indicating its approach.'

"Gentlemen of the jury, we say to
you, as the result of our reflections on
this branch of the subject, that if the

150

prisoner was actuated by an irresistible
inclination to kill, and was utterly un-
able to control his will, or subjugate
his intellect, and was not actuated by
anger, jealousy, revenge, and kindred
evil passions, he is entitled to an ac-
quittal, provided the jury believe that
the state of mind now referred to has
been proven to have existed, without
doubt, and to their satisfaction." — Am.
Journ. of Insan., vol. xv. p. 303.

In Huntington's case, the defendant
was tried in New York, in 1858, for
forgery. Judge Capron said : —

' ' The law , as at present administered,
regards insanity, whether general or
partial, as a derangement of the mind,
the intellect, the reasoning and ap-
preciating principle, the spring of
motives and passions. To constitute a
complete defence, insanity, if partial,
must be such in degree as wholly to
deprive the accused of the guide of
reason in regard to the act with which
he is charged, and of the knowledge
that he is doing wrong in committing
it. If, though somewhat deranged, he
is yet able to distinguish right from
wrong in the particular case in which
crime is imputed to him, and to know
that he is doing wrong, the act is crimi-
nal in law, and he is liable to punish-
ment. But it is insisted for the prisoner
that insanity, either general or partial,
may exist, and the subject be totally
unable to control his actions, while his
intellect, or knowing and reasoning
powers, suffer no notable lesion ; it is
claimed that persons thus afflicted may
be capable of reasoning or supporting
an argument on any subject within

their sphere of knowledge

This affliction has received the name
of Moral Insanity, because the natural
feelings, affections, inclinations, tem-

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 159.

but affected with insanity, and such affection was the effi- recog;nized

, in Illinois

cient cause oi the act, and that he would not have done the andin-
act but for that affection, he should be acquitted. But

per, or moral dispositions only are per-
verted, while the mind, the seat of
volition and motive, remains unim-
paired. I will not positively assert
that this theory is not sound ; it may
be reconcilable with moral responsi-
bility for human conduat; but I am
not reluctant to confess my own mental
inability to appreciate the harmony
between the two propositions, if it
exist."

Under this charge the prisoner was
found guilty, and sentenced to the
state prison.

So in Spear's case (Am. Journ. of
Insan., p. 218) Judge Allen told the
jury that there must be evidence, in
order to acquit, of " a lesion of the in-
tellect and reasoning powers, or of
some derangement or disease affecting
the mind and judgment."

Daniel E. Sickles was tried in the
U. S. Circuit Court for the District of
Columbia, in 1859, for the murder of
Philip B. Key. The defence was
mania, produced by the defendant dis-
covering an adulterous connection be-
tween his wife and the deceased. The
following statement of the legal points
adjudicated is taken from Elwell's
Malpractice, p. 391 : —

' ' Mr. Brady claimed that the im-
mediate circumstances attending the
seduction of Mr. Sickles's wife, and
the death of Key, were of so atrocious
a nature as to overwhelm the mind of
Sickles instantaneously, and thus ren-
der him irresponsible for the crime of
murder. He therefore drew up the
following propositions, and requested
the court to embody them in its charge
to the jury : —

" ' 1. If, from the whole evidence,
the jury believe that Mr. Sickles com-

mitted the act, but at the time of doing
so was under the influence of a dis-
eased mind, and was really unconscious
that he was committing a crime, he is
not in law guilty of murder.

" ' 2. If the jury believe that from
any predisposing cause the prisoner's
mind was impaired, and at the time of
killing Mr. Key he became or was men-
tally incapable of governing himself
in reference to Mr. Key, as the de-
baucher of his wife, and at the time of
committing said act was, by reason of
such cause, unconscious that he was
committing a crime as to said Mr. Key,
he is not guilty of any offence what-
ever.

'"3. It is for the jury to say what
was the state of the prisoner's mind as
to the capacity to decide upon the
criminality of the particular act in
question — the homicide — at the mo-
ment it occurred, and what was the
condition of the parties respectively as
to being armed or not at the same mo-
ment. These are open questions for
the jury, as are any other questions
which may arise upon the considera-
tion of the evidence, the whole of
which is to be taken into view by the
jury.

" '4. The law does not require that
the insanity which absolves from crime
should exist for any definite period,
but only that it exists at the moment
when the act occurred with which the
accused stands charged.

" ' 5. If the jury have any doubt as
to the case, either in reference to the
homicide or the question of sanity, Mr.
Sickles should be acquitted.'

"These propositions were argued at
great length by counsel, especially by
Mr. Brady, who contended that the

151

§ 159.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

this unsoundness of mind, or affection of insanity, must be of such a
degree as to create an uncontrollable impulse to 'do the act charged

great sorrow that had fallen upon Mr.
Sickles had, in fact, dethroned his in-
tellect, and, for the moment, he was
not accountable for what he did. Craw-
ford, J., charged as follows on these
propositions : —

" ' The court is asked to give to the
jury certain instructions, whether on
the part of the United States or on the
defence. The first instruction asked
for by the United States embodies the
law of this case on the particular
branch of it to which it relates, and is
granted with some explanatory re-
marks as to insanity, with a reference
to which the prayer closes. A great
English judge has said, on the trial of
Oxford, who shot at the Queen of Eng-
land, " That if the prisoner was labor-
ing under some controlling disease
which was, in truth, the acting power
within him which he could not resist,
then he will not be responsible." And
again: "The question is, whether he
was laboring under that species of in-
sanity which satisfies you that he was
quite unaware of the nature, character,
and consequences of the act he was
committing, or, in other words, whe-
ther he was under the influence of a
diseased mind, and was really uncon-
scious at the time he was committing
the act that that was a crime. A man is
not to be excused from responsibility
if he has capacity and reason sufficient
to enable him to distinguish between
right and wrong as to the particular
act he is doing ; a knowledge and con-
sciousness that the act he is doing is
wrong and criminal, and will subject
him to punishment. In order to be
responsible, he must have sufficient
power of memory to recollect the rela-
tion in which he stands to others, and

152

in which others stand to him ; that the
act he is doing is contrary to the plain
dictates of justice and right, injurious
to others, and a violation of the dic-
tates of duty. On the contrary, al-
though he may be laboring under a
partial insanity, if he still understands
the nature and character of his act and
its consequences, if he has a knowl-
edge that it is wrong and criminal, and
a mental power sufficient to apply that
knowledge to his own case, and to
know that if he does the act, he will
do wrong and receive punishment, such
partial insanity is not sufficient to
exempt him from responsibility for
criminal acts." Now we come to those
asked on the part of the defence, the
first of which is in these words : —

" ' In reply to the ninth instruction,
the court responds thus : " It is for the
jury to say what was the state of Mr.
Sickles's mind as to the capacity to
decide upon the criminality of the
homicide, receiving the law as given to
them in relation to the degree of in-
sanity, whether it will or will not ex-
cuse, they (the jury) finding the fact
of the existence or non-existence of
such degree of insanity."

"'The tenth prayer reads thus:
"The law does not require that the
insanity which absolves from crime
should exist for any definite period,
but only that it exist at the moment
when the act occurred with which the
accused stands charged." That in-
struction is granted. The time when
the insanity is to operate is the mo-
ment when the crime charged upon
the party was committed, if committed
at all. The eleventh and last instruc-
tion asked reads this way : " If the
jury have any doubts as to the case,

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 159.

by overriding the reason and judgment, and obliterating the sense
of right and wrong as to the particular act done, and depriving the

either in reference to the homicide
or question of insanity, Mr. Sickles
should be acquitted."

" 'This instruction, as I mentioned
in referring to prayer four of the United
States, will be answered in conjunction
with it.

"'It does not appear to be ques-
tioned that if a doubt is entertained by
the jury, the prisoner is to have the
benefit of it. As to the sanity or in-
sanity of the prisoner at the moment
of committing the act charged, it is
argued by the United States, that,
every man being presumed to be sane,
the presumption must be overcome by
evidence satisfactory to the jury that
he was insane when the deed was done.

" 'This is not the first time this in-
quiry has engaged my attention. The
point was made and decided at the
June term, 1858, in case of the United
States V. Devlins, when the court gave
the following opinion, which I read
from my notes of the trial: "This
prayer is based on the idea that the
jury must be satisfied, beyond all rea-
sonable doubt, of the insanity of the
party for whom the defence is set up ;
precisely as the United States are bound
to prove the guilt of a defendant to
warrant a conviction. I am well aware,
and it has appeared on this argument,
that it has been held by a court of
high rank and reputation that there
must be a preponderance of evidence
in favor of the defence of insanity to
overcome the presumption of law that
every killing is a murder ; and that
the same court has said that if there is
an equilibrium, including, I suppose,
the presumption mentioned, of evi-
dence, the presumption of the defend-
ant's innocence makes the preponder-
ance in his favor."

" ' Whether a man is insane or not
is a matter of fact ; what degree of in-
sanity will relieve him from responsi-
bility is a matter of law, the jury
finding the fact of the degree too.
Under the instruction of the court,
murder can be committed only by a
sane man. Everybody is presumed to
be sane who is charged with a crime,
but, when evidence is adduced that a
prisoner is insane, and conflicting tes-
timony makes a question for the jury,
they are to decide it like every other
matter of fact, and, if they should say
or conclude that there is uncertainty,
that they cannot determine whether
the defendant was or is not so insane
as to protect him, how can they render
a verdict that a sane man perpetrated
this crime, and that no other can ?

" ' Nor is this plain view of the ques-
tion unsupported by authority. In
the case of The Queen v. Ley, in 1840,
Lewin's C. C. p. 239, on a preliminary
trial to ascertain whether a defendant
was sufficiently sane to go before a
petit jury on an indictment, Hullock,
B., said to the jury: "If there be a
doubt as to the prisoner's sanity, and
the surgeon says it is doubtful, you
cannot say he is in a fit state to be put
on trial." This opinion was approved
in People v. Freeman, 4 Denio, 9. This
is a strong case, for the witness did not
say the prisoner was insane, but only
that it was doubtful whether it was so
or not. The humane, and, I will add,
just doctrine, that a reasonable doubt
should avail a prisoner, belongs to a
defence of insanity, as much, in my
opinion, as to any other matter of
fact.' " See infra, § 174. See Hop-
pin's case, rep. 34 Am. Journ. Ins.
462.

153

§ 161.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

accused of the power of choosing between them. If it be shown
the act was the consequence of an insane delusion and caused by* it
and by nothing else, justice and humanity alike demand an acquittal.
Sound mind is presumed if the accused is neither an idiot, a lunatic,
nor " affected with insanity." If he be insane, sound mind is want-
ing and the crime is not established, therefore the burden is on the
state to establish sanity, and not upon the prisoner to show insanity.^
So, also, Judge Brewster, speaking for the judges of the Phila-
delphia common pleas, said, in 1868, " The true test in all these
cases lies in the word ' power.' Has the defendant in a criminal
case the power to distinguish right and wrong, and the power to
adhere to the right and avoid the wrong ?"^

In Indiana a similar view was accepted in 1869.^
§ 160. In Ohio, insane irresistible impulse is regarded as a
. , . defence ;* and such is the view in Minnesota,^ and in

And m '

Ohio, Min- Kentucky.^ In Iowa, in 1868, similar views Avere ex-
Kentucky, pressed by the supreme court, Chief Justice Dillon de-
andlowa. liyering the opinion. The capacity to distinguish right
and wrong, it was held, is not in all cases a safe test of criminal
responsibility. If a person commit a homicide, knowing it to be
wrong, but driven to it by an uncontrollable and irresistible im-
pulse, arising not from natural passion, but from an insane condi-
tion of the mind, he is not criminally responsible J To the same
effect is a decision of the supreme court of the United States in
1872.8

§ 161. In North Carolina, on the other hand, it has been ruled
^ ■ . that no impulse, however irresistible, is a defence, when

Contra in r ■> ?

North Car- there is a knowledge of the difference, as to the particular
other act, between right and wrong." And there is no question

states. ^i^^j. ^j^g position that an irresistible impulse can be a

defence is inconsistent with the rule laid down in the great body of

1 See Fisher v. People, 23 111. 283 ; S. 57 ; and Mary Harris's case, 22 Am.
Hopps V. People, 31 111. 394. Journ. Ins. 334.

2 Com. V. Haskell, 2 Brewst. 491. s Life Ins. Co. v. Terry, 15 Wal.

3 Stevens v. State, 31 Ind. 485. 580 ; see also Blackburn v. State, 23
« Blackburn v. State, 23 Oh. St. 146. Ohio St. 165; Brown v. Cora,, 78 Penn.
6 State V. Gut, 13 Minn. 341. St. 122 ; and other cases in Wh. Cr. L.

6 Smith V. Com., 1 Duv. 224. 8th ed. § 45.

7 State V. Felter, 25 Iowa, 67 ; see « state v. Brandon, 8 Jones, 463.
also McFarland's case, 8 Abb. Pr. N. See also infra, § 170.

154

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 162.

cases which sustain the " right and wrong" test as an exclusive
standard.^

§ 162. Mania transitorta, or Furor transitorius, so far as it
ma J be set up as a legal defence, may be properly
noticed in this connection ; its psychological relations u-ansuoria
being reserved for subsequent discussion.^ 3Iania tran- ^°^^
sitoria, which is alleged to be a sudden attack of mania,
exhibiting itself in a person whose life prior and subsequent to the
attack was generally sane, was set up as a defence in the trial,
before the supreme court of Massachusetts, in 1868, of Andrews
for the murder of Holmes. The psychological points raised at this
trial will be subsequently noticed. It is sufficient now to give the
legal results introduced by Chief Justice Chapman in his charge to
the jury.

" Insanity is to be distinguished from passion. One may become
so far infuriated by passion, excited by words or blows or by a
struggle, as to yield himself up blindly to its impulse, and not
know what he does. But such passion is not insanity. One who
does not control his passions is to blame, but an insane man is not
to blame. He is prostrated by disease of body which has so far
affected his mind that he is innocent in being unable to distinguish
right from wrong.

" If the prisoner killed Holmes under the mere influence of evil
passions, and without provocation, he is guilty. On the other
hand, if there was no evil passion or motive, and he was insane, he
is an innocent man, and is entitled to go at large as much as any
of us. If he is acquitted on that ground, you must say so in your
verdict. I will read to you the statute on that subject. [Reads
Gen. Stat.,c. 172, sec. 17.]

" But, as it is not pretended that he is now insane, if you acquit
him on the ground of insanity he will be entitled to go at large.
You will need to consider with the utmost care the evidence on this
subject. And here there are certain presumptions of fact which
are founded on experience.

" If when a man does an act he has always been sane, this tends
to prove that he was sane when he did it. On the contrary, if he

« See Wh. Cr. L. 8th ed. § 35 et seq.; » See infra, § 710 ; U. S. v. Guiteau,
TJ. S. V. Guiteau, infra, § 679. in/ra, § 679.

155

§ 162.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

had been insane a short time before the act, this tends to prove
that he was insane when he did it. This presumption is often
applied to the making of wills and deeds. It applies with equal
force to the taking of another's life. Another similar rule is that,
if a man is sane just after having done an act, it tends to prove
that he was sane when he did it ; but, if he was insane just after,
it tends to prove that he was insane when he did it. You can judge
practically how strong these presumptions of evidence are. You
are to apply them to the present case.

" Up to within a few moments of Holmes's death, had the prisoner
been insane ? Had he ever been insane ? or had he been insane
within a short period ? If he had never been insane, or if he had
not been insane for some time previous, that would have a tendency
to show that he was not insane when he committed the act. From
a few moments after the act has he been insane ? If he has been
sane from a few moments after the act, it tends to show that he was
sane when he did it. If he has been insane since, it tends to show
that he might have been insane when he did it.

" There is evidence on this subject as to his appearance some
two years ago, when Frank Bobbins, his relative, died ; also as to
his appearance at New Market. And some other facts are alluded
to by his counsel. You heard them in evidence. I do not propose
to recapitulate the evidence on this subject. Both the experts say
that these various circumstances furnished no proof of insanity.
There is also evidence that the prisoner had frequent headaches ;
but it hardly needs an expert to testify as to them. So many of
us suffer intense pain from them during the best years of our lives,
that no one will infer insanity from them alone. The jury will
judge of the strength of the proof as to the prisoner's sanity when
he killed Holmes, arising from the testimony as to his being sane
before and afterwards, the proof coming so near to the time of
killing. If he was calm as well as rational immediately before and
immediately after, it will tend to show how far he was calm and
rational then. And in this connection the question, whether the
prisoner had any motive to do the act which could possibly influence
a sane man, is a question to be taken into consideration. You will
also consider the instrument which he used, and all the circum-
stances of the act of killing. The prisoner is himself a witness,
and testifies as to his state of mind when he did the act. We learn
156

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 162.

from him all the facts we know in regard to his insanity at the time.
The description of it comes from him alone.

" There are two things to be inquired into on this point. In the
first place, assuming his statement to be true, does it prove that
bodily disease had suddenly attacked him, and that he acted under
that influence, or that he acted under the influence of passion, and
thus became blind and furious ? If it was the latter it was not
insanity, and he must seek for an excuse on other grounds, which I
shall speak of hereafter. On this point the opinion of the two
experts is given. Dr. Jarvis says the facts indicated a maniacal
paroxysm. Again, he says, not regarding the prisoner's statement
as true, the facts tend to raise a suspicion of insanity. He says
the act of killing, of itself, is no evidence of insanity. Few men
would pretend that the mere act of killing another is, of itself, evi-
dence of insanity. It would give to crime perfect impunity if the
commission of crime were to be regarded as an evidence of insanity.
I believe there are some philosophers who pretend to think it is so ;
but they lay aside common sense, and would deprive the community
of all protection against criminals. It is proper also to say, that,
if a homicide is committed with circumstances of cruelty and atro-
city, that cruelty and atrocity, of itself, does not tend to prove
insanity. The statute treats such circumstances as aggravations of
the crime, and not as proof of insanity. If they were of themselves
regarded as evidence of insanity, it would furnish an inducement to
every murderer to act with as much cruelty as possible, in order
to furnish proof that he was insane, and excuse himself on that
ground. But if the act is done without any assignable motive, you
look more readily to insanity as the cause, than if a strong motive
were proved.

" I have spoken of the opinion of Dr. Jarvis that there might
have been a sudden attack of insanity that came on without any
premonition, led to the murder, and departed as soon as the murder
was committed, leaving no trace behind. The opinion of Dr.
Choate is the contrary. He regards such a kind of insanity as
unheard of and impossible. As insanity arises from bodily disease,
he thinks it could not come on so suddenly, rage so violently, and
then totally disappear. You are to judge of these opinions. The
opinions of experts are mere evidence for the jury to consider in
connection with other evidence. The responsibility is, after all,

157

§ 165.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

on you to say whether the prisoner is, or is not, guilty by reason
of insanity. I think the opinions of experts are not so highly
regarded now as they formerly were, for, while they often afford
great aid in determining facts, it often happens that experts can be
found to testify to any theory, however absurd. The experts
before you are gentlemen of learning, and you must judge between
them."i

4. '■''Moral insanity''^ (i.e. a supposed insanity of the moral system
claimed to coexist with mental sanity^ is no defence.

[For several important medico-juridical opinions in cases of alleged
" moral insanity,''^ see Appendix to third edition of this work,
§§ 834, 838, 843, 848.]

§ 163. At the outset it must be remembered that " moral in-

(jj, sanity," as above defined, is to be distinguished (1)

sanity" is from insane irresistible impulse, (2) from transitory
no defence. . i^cnp t • ■ • ^ i^^i-i

mania, and (3) trom occult insanity, with each ot which

it is sometimes confounded.

Hereafter it will be shown^ that moral insanity, viewed in this
sense, has, psychologically, no existence.^ It will also be shown
that " motivelessness" is no necessary proof of insanity. At pre-
sent it will be shown that moral insanity is not, by our law, a
defence to an indictment for crime.

& 164. Moral insanity, viewing the term in the sense

Thisaffirm- •, . , . . , , , ^ ,

edinEng- which IS given above, has been, whenever it has been
^^ ' suggested as a defence, repudiated by the English

courts.*
§ 165. On the trial of Townley in 1868 this question was dis-
In Town- tinctly presented. The defendant was shown, on the
ley's case. ^y'ihI before Baron Martin, to have belonged to a family
in which positive insanity existed ; it was proved by medical wit-

• See review of this case by Dr. Jar- ' Infra, §§ 401-404.

yis, in 26 Am. J. Ins. 369 ; and infra, * R. v. Oxford, 9 C. & P. 525 ; R. v.

§§ 710-722. For an interesting case Goode, 7 A. & E. 536 ; R, v. Barton, 3

of alleged mania transitoria, with the Cox, C. C. 275 ; R. v. Higginson, 1 C.

opinion of Dr. Casper, see App. to 3d & K. 129 ; R- v. Layton, 4 Cox, C. C.

ed. of this work, § 840. 149 ; and cases hereafter cited.

* Infra, §§ 531-678.

158

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 166.

nesses that he stated to them that he did not think he had com-
mitted any crime, though it must be remembered that this is what
was said by Burr after the death of Hamilton, and what would be
said by any one acting on the " law of honor," or any other pre-
tended higher law ; and it was shown that the reason on which he
relied for this notion was, that, the lady whom he killed having
been engaged to him, she was his property, and that, for what he
called virtual adultery, he was, by the law of honor, entitled to
punish her by death. It was also testified by Dr. Forbes Winslow,
that he found it impossible to impress the defendant with a sense of
the seriousness of the issue. But Baron Martin charged the jury,
that, in point of law, these facts did not constitute a defence. " If,"
said he, " his (the defendant's) real motive was, that he conceived
himself to have been ill used, and, either from jealousy of the man
who was preferred to him, or from a desire of revenge upon him,
committed the act, that would be murder. These were the very
passions which the law required men to control ; and, if the deed
was done under the influence of these passions, there was no doubt
that it was murder." The cautiousness with which this is stated
cannot escape observation. The judge does not say that the defen-
dant was to be convicted though he did the act under an insane
delusion that to do so was, by some supposed higher law, right. It
is simply declared that to kill under influence of jealousy or revenge
is murder. It is proper to add that the defendant was convicted,
and sentenced for life to penal servitude ; during which he com-
mitted suicide.^

§ 166. The Rev. J. Selby Watson, a clergyman of over seventy
years, was tried in London, in January, 1872, for the in Wat-
murder of his wife. It appeared in evidence that for ^°^'^ '^^®^'

' See R. V. Townley, 3 F. & F.. 839 ; act, and the circumstances showing

supra, § 127. Shortly after Townley's sense and deliberation, and a perfect

case, on a trial for murder, before Erie, understanding of the nature of the act :

J., the defence relied on evidence show- it was held, that the evidence was not

ing a great amount of senseless extra- sufficient to support the defence, as it

vagance and absurd eccentricity of rather tended to show wilful excesses

conduct, coupled with habits of exces- and extreme folly than mental inca-

sive intemperance, causing fits of de- pacity. R. v. Leigh, 4 F. & F. 915.

lirium tremens, the prisoner, however. See also R. v. Southey, 4 F. & F. 864;

not having been laboring under the and also an interesting review in 23

effects of such a fit at the time of the Am. Journ. of Insanity, 387.

159

§ 167.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

years he had been suiFering under her petulance and violence ; and it
was made probable that the act was done in a condition of frenzied
rage. The defence was insanity, lashed into fury by provocations
which had become unendurable. Mr. Justice Byles, in his charge
to the jury, said, according to the report in the Times of January
13, 1872, " that the real and only question . . was this. Was the
prisoner at the time he committed the act legally responsible for it,
and was he a responsible agent ? That depended upon a question,
on which the counsel also agreed, Did he at the time he com-
mitted this act know what he was doing f If not, of course he was not
criminally responsible. Did he also know that what he was doing was
wrong ?" The learned judge added that he was aware that doubts
on the universal applicability of this rule had been expressed by
many eminent persons for whose opinion he had the greatest respect.
" But if it was to be altered at all, it must be altered by act of par-
liament." The defendant Avas convicted and sentenced to be hung,
with a recommendation to mercy ; and the sentence was commuted
to imprisonment for life.

§ 167. Christiana Edmunds was tried in January, 1872, at Lon-
don, before Baron Martin, for the murder of a little boy,

And in

Edmunds's named Barker, on the 12th of the preceding June. The
uncle of the boy had on that day bought some chocolate
cream drops from a respectable confectioner named Maynard. Of
these the boy ate several, and died a few hours afterwards. At a
post mortem^ strychnine enough was found in his stomach to have
killed an adult. Shortly afterwards evidence transpired which
connected the prisoner with the poisoning. It appeared that be-
tween March and June she obtained from a chemist at Brighton,
on various pleas, and once on a false name, a considerable quantity
of strychnine. Towards the end of May, she sent a boy whom she
met in the street to buy some chocolate drops for her at Mr. May-
nard's. When he returned with them, she said they were too
large, and she sent him back to exchange them for others which
were smaller. This was done ; and the case of the prosecution
was that, in this way, she introduced into the shop the poisoned
sweets by which young Barker had been killed. It further ap-
peared that she had frequently sent little boys on a similar errand ;
that she had left parcels of sweets in other shops ; and that chil-
dren who had eaten out of these parcels had been taken sick with
160

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 169.

symptoms not unlike those produced by strychnine. It was shown,
also, by way of motive, that she had become attached to a Dr.
Beard ; that she had given Mrs. Beard a chocolate-cream which
had caused the latter much sickness ; that, to divert suspicion
from herself of intentional poisoning, she had sought to throw the
charge on Mr. Maynard; that, to do so, she had, in the way speci-
fied, introduced poisoned candy into his store ; and that, to clinch
the matter, she gave evidence, on the inquest that followed the
death of young Barker, that she had herself bought poisonous
candy at Mr. Maynard's shop. She was also shown to have
written anonymous letters to the father of Barker urging him to
prosecute Mr. Maynard ; and she took an active part in that prose-
cution herself.

§ 168. Insanity was the defence, and it was proved that the
prisoner's father was, at the age she had reached on the trial, a
maniac, and that he died in an asylum ; that her brother was from
childhood an epileptic idiot ; that her sister labored under chronic
hysteria, and had attempted suicide ; that her mother's father died
at 43 in an imbecile state from paralysis ; and that she herself,
eighteen years before, had suffered from partial paralysis and
hysteria. Dr. Wood, physician to St. Luke's Hospital, stated that
he visited the prisoner about ten days before the trial, in connec-
tion with Dr. Maudsley and others. He was struck with her indif-
ference to her position ; he thought her quite incapable of estimat-
ing it ; and he believed her " incapable of judging between right
and wrong in the same sense that other people would." Dr. Rob-
ertson testified that he thought "her intellect quite clear and free
from any delusion, but that her moral sense was deficient, as in the
descendants of insane parents." Dr. Maudsley concurred gene-
rally with Dr. Robertson, but he went on to say, in his cross-exam-
ination, that " everybody who committed crime exhibited some want
of moral feeling."

§ 169. Baron Martin, in his charge,^ said, in respect to insanity,
the question "was a difficult one. A poor person, he remarked by
the way, was seldom afflicted with insanity, and it was common to
raise a defence of that kind when people of means were charged
with the commission of crime. He had heard a doctor say that all

' See report in the Times, of January 17, 1872.
VOL. I. — 11 161

§. 169.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

mankind were mad more or less, but that had little to do with the
case under consideration. The state of mind which excused crime
was well fixed in our law. There were many diseases to which the
mind was liable as well as the body. There was the idiot, who
was born without any mind whatever. Again, there was the man
who was raging mad, and, if he had what was called a homicidal
tendency, he would have no more criminal responsibility than a
tiger. But the most numerous cases of that kind were of persons
said to be subject to delusions. They were persons who believed
in a state of things which did not exist, and acted on that state of
things." After giving the answers of the judges in McNaughten's
case, he said, " If the jury in this case should think that the
prisoner did not knoiv right from wrong at the time she committed
the crime ivith which she is charged, if she did commit it, they
must acquit her." The scope of the charge is, that, if the defendant
was under a delusion Avhich made the poisoning seem right to her,
she was entitled to an acquittal on the ground of insanity. If not,
she should be convicted. It is difficult to see what sound objec-
tions can be made to this view of the law. If the fact that a per-
son has descended from insane ancestors, or has years back shown
symptoms of insanity, is a bar to an indictment for crime, then
persons who have been so affected will become a class who can
murder, or burn, or rob with impunity, and whom society, as it
cannot punish, will be obliged to sequestrate by a process which
will bear far more harshly on them than would the penal amena-
bility which would be otherwise imposed. The act for which the
prisoner was tried was marked by much premeditation, and was
executed with great intelligence ; and there was no proof at the
trial either of any insane delusion on her part, or of such a condi-
tion of mind and will as deprived her of ability to resist the impulse
to the fatal deed. Dr. Robertson came nearest to a positive state-
ment ; but he limited himself to saying, that, while the prisoner's
intellect was good, her moral sense was deficient, and that her act
was " on the border-land between crime and insanity. Even, there-
fore, supposing that the law recognized such a defence as irresistible
homicidal impulse, it is difficult to see how this defence could have
been sustained on such feeble asseverations as these, in the face of
direct proof that the prisoner was fully capable of so moulding her
" impulse," not only as to make it subservient to a very important
162

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 170.

purpose of her own, but to let it out when it was likely to he unde-
tected, and to restrain it when to indulge in it would bring exposure.
She was under the dominion, so far as the testimony went, of no
such unrestrainable rage for poisoning as would force her to lay
her poison in the public streets, whenever the poison was in her
hands, and persons to be poisoned before her face. She poisoned
when she could do so with impunity ; she controlled herself when
she could not.

§ 170. Such is the case as it appeared on the trial. But, so
slight were the opportunities of examination which had been secured
by the experts who testified for the defence, and so consequently
imperfect was their testimony, and so earnest were the appeals
made for a reconsideration of the question on the grounds of addi-
tional testimony as to insanity having been secured, that Baron
Martin united in recommending a reconsideration of the question by
the home secretary.^ Additional medical testimony was taken, and

' The Lancet took strong grounds
against the verdict. It went so far as
to make the following extraordinary-
statement : —

" If there be one thing certainly-
proved in mental medicine, it is this,
that for any woman belonging to a
family which (like that of the Ed-
munds's) was a prey to insanity and
other nervous diseases, and living an
involuntarily single life while strug-
gling with hysteria and suppressed
sexual feeling, it would be almost im-
possible to go on to the critical age of
forty-three without actual derangement
of mind. That her crime had a motive,
and that her conduct was directed with
an infernal cunning towards her end,
is not in the least inconsistent with the
worst forms of madness. We do not
hesitate to say that had Christiana Ed-
munds been hanged, a judicial murder
would have been committed."

Dr. Forbes Winslow added his high
authority to the opinion of Dr. Robert-
son. See also Review of these commu-
nications in London Spectator of Feb. 3,
1872.

The following are part of the com-
ments of the Saturdaii Review: —

"It must be admitted that public
opinion influences the administration
of criminal justice in this country, and
public opinion is liable to fluctuations.
Some years ago corporeal punishment
was in extreme disfavor, whereas now
people apparently like their newspaper
to inform them how a garroter looked
during his flogging, and it is frequently
suggested that other offences besides
robbery with violence might be usefully
visited with the lash. Garroting in-
deed went on until nobody was safe
in the streets after dark, and it was
felt that the civilization and humanity
of the age must submit to the unpleas-
ant necessity of reviving a punishment
which had been regarded as only suit-
able to a period of ignorance and bar-
barism. . . Suppose that Townley
had been acquitted on the ground of
insanity, and that, as is only too pro-
bable, that form of insanity had be-
come common, there would soon have
been a general concurrence of opinion
that hanging was theonly eff"ectualcure

163

§ 170.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

it was understood that Sir W. Gull, and Dr. Orange, superintendent
at Broadmoor, both high authorities in psychological medicine,

for it. . . Mr. Baron Martin, in that
case, told the jury that, if Townley
knew that the act which he committed
was contrary to the law of God and
punishable by the law of the land, he
was guilty of murder. This, indeed, is
all that an English judge can say of
such a case, and perhaps it is all that
he ought to say. The doctrine of viti-
ated moral sense excusing crime cannot
be admitted without endangering the
foundations of morality and criminal
justice. Take, for example, the char-
acter which would have been described
in the words of a well-known play of
the last century, as that of ' bold in-
triguer and a gay companion.' The
heroes of many comedies of that time
were men of vitiated moral sense, but
it would never have occurred to any
psychologist to suggest that seduction
or adultery was pardonable because it
was committed without compunction.
Another medical witness. Dr. William
Wood, ' was very much struck with
prisoner's absolute indifference to her
position, and lie failed altogether to
impress her with its seriousness.'
These, again, are almost the exact
words which were used by Dr. Forbes
Winslow in Townley's case. This wit-
ness discussed with the prisoner the
subject of what was said to have passed
between her and Dr. Beard. He asked
whether she thought it wrong for a per-
son to destroy the life of another person
because she believed that the husband
of that person wished to get rid of her.
'After some hesitation she said she
thought it would be wrong, but she did
not say it in such a manner as to lead
him to believe she really thought so.'
The witness here admits, while at-
tempting to qualify the admission, that
the prisoner had that capacity of dis-

164

tinguishing right from wrong which the
law holds to be sufficient to render her
responsible for her actions. It seems
to follow that until the law is changed
there is nothing more to be said about
the case. Dr. Maudsley gave evidence
to the same effect. ' He found an ex-
treme deficiency of moral feeling as to
the crime with which the prisoner was
charged, and she did not appear thor-
oughly to realize her position.' Such
evidence ought to be disregarded in
this as it has been in many other
cases, but it happens that the medical
witnesses are supported by the fact
that near relations of the prisoner have
been committed to lunatic asylums on
the usual certificates, and have re-
mained in them until death. Mr. Baron
Martin, commenting upon similar evi-
dence which was given in Townley's
case, said the object of that evidence
was to show that it was possible, and
not unlikely, that the hereditary taint
might exist in the prisoner. 'AH the
evidence, however, failed to show the
existence of any delusion in the pri-
soner's mind which could explain his
act.' These words fit accurately to
the present case, but it must be ac-
knowledged that the evidence of in-
sanity in the prisoner's family went
much beyond that which was given in
Townley's case. It is of course possi-
ble tliat the doctors may be right al-
though they give wrong reasons for
their conclusions. We may observe
that Dr. Maudsley has given the same
reason for the same conclusion in the
case of Watson, where we cannot help
saying that both reason and conclusion
api^ear to us preposterous. It has of
course been remarked that, if the pris-
oner Edmunds had committed suicide,
and the evidence of insanity existing

INSANITY AS A DEFENCE TO CHARGE OP CRIME. [§ 172.

united, after a careful examination, in the opinion that the defendant
was insane. Her sentence was consequently commuted to imprison-
ment at Broadmoor as a criminal lunatic.

§ 171. In reviewing this case, we are first compelled to notice
the very scanty preparation which had been made to enable the
medical experts at the trial to speak intelligently on the issue.
The defence, indeed, was singularly defective in the scope of the
testimony it adduced. Dr. Beard, the defendant's family physician,
for whom it was afterwards suggested by Dr. Winslow that the
prisoner had an " insane passion," was not called ; though no one
was so competent as he to speak as to the state of her mind. But,
waiving this, the experts who were examined had had no personal
acquaintance with her, and formed their opinion on a brief prison
interview. How little comparative weight opinions given on such
slight examinations are entitled to, will be hereafter seen.^ The
medical gentlemen referred to were not to blame. They were
asked by the prisoner's friends to attend her at the periods in ques-
tion, and they did so. The difficulty arose from the practice of
making such examination, not judicial, as in Germany, under a
commission from the government, but partisan, conducted by the
defence, according to its capacity or policy. A jjoor defendant,
under this system, has no chance. A rich defendant can indeed,
at such periods as he may desire, obtain the attendance of distin-
guished experts, but their testimony is necessarily imperfect and
ex parte.

§ 172. Then, again, the peculiar mode by which convictions are
in England reviewed tends, in proceedings such as the present, still
further to unsettle the public mind, and to increase the uncertainty

in the family had been given at an in- In commenting on these cases, a

quest, the jury would have arrived writer in the Times said: "Oxford's

without hesitation at a verdict which confinement as a lunatic had no effect

would have been generally approved, whatever in preventing persons of

It is, however, unnecessary to add that weak or perverse minds from firing or

in all such cases we ought not to be attempting to fire at her majesty ; but

unduly influenced in our estimate of the moment flogging was assigned as

facts by the indisposition which we the penalty for the ofl'ence, the weak

feel to give apparent sanction to a and the perverse restrained themselves

theory of irresponsibility for crime at once, and the offence was never

which we regard as mistaken and per- heard of again."

nicious." ' See infra, §§ 328-345.

165

§ 174.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

of the law. That the home secretary should have issued a requisi-
tion to Dr. Orange and Sir W. Gull, to semi-judicially examine the
question of Christiana Edmunds's sanity, Avas eminently proper.
But the examination should have been conducted in open court, or,
at least, as is the practice in Germany, the return of those eminent
physicians should have been under oath, and should, reasons and
conclusions, have been published. As it is, we have, on the one
side, a published trial, leading to the conclusion of her sanity, on
which conclusion she was found guilty by the jury and sentenced
by the court, and, on the other hand, a secret subsequent investiga-
tion, showing her insanity, leading to the virtual setting aside of
verdict and sentence. We have no right to assume otherwise than
that each decision, on its own particular evidence, was right. But,
to understand the decision of the home secretary, the testimony on
which it was based should be supplied.

§ 173. But, thirdly, it must be recollected, that, whatever may
be thought of the rightfulness of the verdict on the merits, there
was at no time any question as to the propriety of the rulings of
the court. These rulings were the subject of careful consultation
among the several judges. It was stated by Baron Martin, that
the rulings expressed their deliberate-view, and that it was not likely
to be changed except by act of parliament. The challenge thus
thrown out has not been accepted. In the house of lords, which, as
the supreme appellate court of the empire, is peculiarly charged
with cognizance of such issues, the only expression on the subject
has been one of assent. We may therefore hold it to be established
in England, that the doctrine of '' moral insanity," so far as it
involves the idea of irresponsibility based exclusively on moral as
distinguished from mental derangement, is rejected by the courts.

§ 174. In the United States, there is almost equal judicial unani-
mity in refusing recognition to this theory, and in declar-
So in the *' o o ,. i • i f.

Uuited ing that no amount of derangement of morals is a detence

unless accompanied with mental insanity. To this effect
are decisions in Massachusetts,^ in Maine,^ in Connecticut,^ in New

' Com. V. Rogers, 7 Mete. 500 ; Com. 2 state v. Lawrance, 57 Me. 574.

V. Heath, 11 Gray, 303; see U. S. v. » State v. Richards, 39 Conn. 591 ;

Holmes, 1 Clifford, 198; U. S. v. but see Anderson v. State, 43 Conn.

Schultz, 6 McLean, 120. 514.

166

INSANITY AS A DEFENCE TO CHARGE OP CRIME. [§ 175.

York/ in New Jersey ,2 in Delaware,^ in Virginia,^ in North Caro-
lina,^ in Georgia,^ in Ohio,^ in California,^ and in other jurisdic-
tions where the question has been mooted.^ In Pennsylvania, it
is true, there is an apparent departure from this current of authority
by the acceptance, in a case already cited,'" of " moral insanity" as
a doctrine that could be under certain circumstances sanctioned by
the courts. But a scrutiny of this case will show, that Chief Justice
Lewis, in the case referred to, means by " moral insanity," not the
mania sine delirio of Pinel, or, as here defined, moral without
mental lunacy, but insanity in its general sense, manifesting itself
in irresistible impulse. His views, therefore, are in accordance
with those here expressed.

§ 175. The nearest advance to the recognition of moral insanity
was made in 1864, by the court of appeals of Kentucky.^' ^^^ ^.^^
This result was in part due to a reaction from the ex- in Ken-

1-11 1 • ^ ^ • tucky.

treme to which the courts and executive had, m one or
two noted prior cases, gone in rejecting the defence of insanity
almost in toto; but, be this as it may, we find Robertson, J., who,
when at the bar, had taken bold ground, in one of the cases last
referred to, in maintenance of moral insanity, now maintaining the
same position on the bench. " Moral insanity," he tells us, " is
now as well understood by medico-jurists, and almost as well estab-
lished by judicial recognition, as the intellectual form.'^ Mentally,

' Freeman v. People, 4 Denio, 9 ; Ohio St. 54), "that there is no au-

supra, § 145. Shorter ?;. People, 2 thority for holding that mere moral

Cornst. 193 ; MoFarland's case, 8 Abb. insanity, as it is sometimes called, ex-

Pr. N. S. 57; Flanagan v. People, 52 onerates from responsibility." S. P.

N. Y. 467. Judge Cox's charge in U. S. v. Guiteau,

2 State V. Spencer, 21 N. J. L. 196. infra, § 679.

3 State V. Windsor, 5 Harr. 512. '<> See supra, § 158.

« Vance v. Com., 2 Va. Cases, 132. i" Smith v. Com., 1 Duv. 224.
5 State V. Brandon, 8 Jones, L. 463. '^ Xo this assertion, Dr. Chipley,
8 Choice V. State, 31 Gra. 424. medical superintendent of the Eastern
^ State v. Gai-diner, Wright, 0. 392 ; Kentucky Lunatic Asylum, makes, in
see U. S. V. Schultz, 6 McLean, 120 ; the American Journal of Insanity for
Farrer v. State, 2 Ohio St. 54. July, 1866, the following just reply : —
8 People V. Coffman, 24 Cal. 230; " It has seemed tome that it is not
People V. McDonell, 47 Cal. 134. an unusual thing for those who enter-
8 The courts, in varied terms, unite tain the opinions expressed by the
substantially in declaring, as the pro- court, to claim a greater weight of
position is stated by a very able jurist, authority in their favor than is war-
Judge Thurman (Farrer v. State, 2 ranted by the facts. Judge R. says :

167

§ 175.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

man is a dualism consisting of an intellectual and a moral nature.
. No enlightened jurist now doubts the existence of such a

' Moral insanity is now as well under-
stood by medico-jurists, and almost as
well established by judicial recogni-
tion, as the intellectual form.'

" It is to be feared that this assertion
has been derived, not from an exami-
nation of the decisions of the courts,
but from the declarations of active par-
tisans whose wishes are father to the
thought.

" So far as I have been able to ascer-
tain, the doctrine of moral insanity
has not been recognized in the courts
of England, whence we have drawn our
principles of law ; nor in the courts of
this country, except in a few isolated
instances. Certainly its recognition
has not been generally acceded to in
the higher courts of either country.
Nor is there any greater accord among
those medical men whose positions
have made them most conversant with
all forms of mental maladies.

" The doctrine is not recognized, for
any medico-legal purposes, by a major-
ity of the members of this association,
to whom is confined the care of almost
all the insane in our country.

"While, therefore, it remains un-
recognized in the courts of England,
and has been admitted by only very
few judicial authorities in our own
land ; and while it is repudiated, as a
false doctrine, fraught with great evil
to society, by a majority of the practi-
cal psychologists, known to us to be
gentlemen of fidelity, integrity, and
experience, are we not warranted in
entering a claim to the weight of au-
thority in the negative ? Certainly
there is something more than a ' dis-
sentient voice occasionally heard from
the bench, the bar, the medical pro-
fession at large, and from those who

168

claim some special knowledge of insan-
ity and the insane.'

" That the doctrine is advocated by
many honest, capable, and faithful ob-
servers, no one can gainsay. It is im-
possible to avoid this division of senti-
ment on any scientific or professional
question not absolutely demonstrative
in its character, and it is the division
of sentiment among gentlemen who are
ardently seeking truth, and the im-
portance of the subject, which bring it
so frequently to the surface for renewed
examination. There is here no partisan
spirit, but a sincere desire to harmonize
on a truthful and solid basis.

" I do not propose to discuss the ab-
stract question of the possibility of a
perversion of what are called the moral
powers, or, as Professor Upham terms
them, the sensibilities.

"This may occur from ill-directed
education, from habit, evil associations,
and the absence of that salutary con-
trol that should be exercised over per-
sons in early life, which make men
desperately wicked. But the practical
question for us is this : Shall such per-
versions free one from legal penalties
while the intellectual powers are un-
impaired ? In the school of morals and
the forum of conscience, I will readily
admit that all crimes are species of
insanity, but I am not prepared to
admit the plea of insanity as an excuse
for violations of law, unless it can be
shown that there is a congenital or
accidental defect of those powers with
which the Creator has endowed man
for the purpose of enabling him to dis-
criminate between right and wrong
and to choose the one and avoid the
other.

" In this discussion it is important

INSANITY AF A DEFENCE TO CHARGE OF CRIME, [§ 175.

type of moral, contradistinguished from intellectual insanity as
homicidal mania, or morbid and uncontrollable appetite for man-

also to understand what is meant by
moral insanity. If we accept the defi-
nition of some of its advocates, as that
of the learned Dr. Copland, the contro-
versy is at an end, and the adjective
' moral' may be very properly dropped
from medico-legal science. He defines
it to be ' a perversion of the inclina-
tion, temper, etc., the intellectual fac-
ulties being more or less weakened or
impaired.' This yields all for which
the opponents of the doctrine contend.
They make no claim to any special
amount of intellectual impairment, but
simply insist that some degree of men-
tal unsoundness is required to free one
from accountability for his acts. But
the term is not generally applied, sim-
ply because the mental aberration is
manifested chiefly in the state of the
feelings, afi'ections, temper, habits, and
conduct of the individual ; bat, in the
language of Dr. Prichard, who is said
by Dr. Bucknill to have been ' the
able and learned inventor of moral
insanity,' it denotes 'a disorder which
affects only the feelings and afi'ections,
or what are termed the moral powers
of the mind, in contradistinction to the
powers of the understanding or intel-
lect.' It is in this sense that I propose
to consider the doctrine.

"Whenever, therefore, it can be
shown that any one or more of the in-
tellectual faculties become unsound
from disease, the case is at once re-
moved from the category of moral in-
sanity. It will be important to bear
this in mind, especially, in any con-
sideration that may be given to the
cases that have been so repeatedly
alleged as instances of pure moral in-
sanity— cases which have been cited
and reproduced so frequently that they
have become sufiiciently worn to ex-

pose the fallacy of the very doctrine
they are intended to support.

" In order to determine the limits of
man's responsibility, it is important to
ascertain the foundation of his ac-
countability. Why is he held respon-
sible for his acts ?

"On this topic, I do not intend to
enter upon any metaphysical disquisi-
tion. Metaphysicians are not agreed
among themselves, in the views they
entertain. They are all prone to ana-
lyze the mind into great departments,
assigning to each certain functions or
powers. Professor Upham says : ' The
human mind exists in the three great
departments of the intellect or under-
standing, the sensibilities, and the
will,' and he declares ' the ofiice of the
will is mandatory and executive.'

" Others, with more reason I think,
consider the will as a mere resulting
power — the mere power of obeying the
dictates of the understanding.

"For all our purposes, the mind is
in entity with multiple powers of mani-
festation.

"We admit that, in a certain sense,
the propensities and sentiments are
integral portions of our mental consti-
tution, and that they are liable to
irregular and deranged action ; but it
does not follow that one may become
iri'esponsible for his acts while intellect
remains sound.

"Man is not made accountable be-
cause he is endowed with propensities
and instincts ; these he has in common
with the beasts that perish, and for
whom no criminal laws are enacted.

"Man's propensities and passions,
and their liability to irregular and de-
ranged action, make penal statutes
necessary to the protection of society ;
but he is held accountable only because

169

§ 176.] MENTAL UNSOUNDNESS IN ITS LEGAL KELATIONS.

killing ; and pyromania, or the like passion for house-burning ;
Meptomania, or an irresistible inclination to kill." . . . But,
if his insanity extend no further than a morbid perversion and pre-
ternatural power of insane passion, or emotion, he not only "knows
right from wrong," but knows, also, that the act he is impelled to
do is forbidden by both moral and human law.

§ 176. We have to regret, in the opinion just quoted, an am-
biguity in the use of terms which makes it doubtful whether the
"moral insanity" of which the writer speaks, is simply the " irre-
sistible impulse" of a person mentally insane, or is that supposed
state of moral unsoundness coexisting with mental soundness which
the technical term conveys. If the former was intended, the deci-
sion goes no further than those sustained in previous sections, which
declare that an irresistible impulse, in an insane person, coercing
crime, is a defence to an indictment for such crime. If, however,
Judge Robertson meant more than this — if his purpose was to say
that there could be moral insanity coexisting with mental sanity —
then we must remember that he states this as a supposed rendition
of medical science, and that his opinion is simply a statement of
fact as to which it will be seen he is mistaken. So far from moral

he is also endowed with intellectual and to choose the one and avoid the

faculties and a free rational will or other ; or, in the language of Judge R.,

power capable of regulating and con- he is accountable because he has ' the

trolling the sensibilities. light of reason to guide him in the

"If one is born with all the emo- pathway of duty, and a/ree and raf/onaZ

tional endowments of our nature, but presiding will to enable him to keep that

destitute of understanding, his irre- way in defiance of all passion and

sponsibility is unquestionable. The temptation.'

same is true when the faculties of the. " If, then, accountability is a struc-

understanding are perverted, impaired, ture erected solely on the intellectual

or destroyed by disease. power, must it not remain unshaken

"In every aspect in which man's so long as its foundation is sound and

accountability is viewed, we arrive at unbroken ? Is it not illogical to set

the same point, that its sole basis is out with the fundamental proposition,

the existence and soundness of the that man is made responsible for his

intellectual powers — those wonderful acts only because he is gifted with an

endowments which so eminently dis- understanding, and then arrive at the

tinguish man from other animals, conclusion that he may become irre-

which enable him to discriminate be- sponsible without the impairment or

tween good and evil, right and wrong, disease of any one of its powers ?"

170 ^

INSANITY AS A DEFENCE TO CHARGE OP CRIME. [§ 178.

insanity in this sense being accepted, it is repudiated by the just
weight of modern psychological opinion.^

§ 177. In 1869, the same judge, in an insurance case, where
the question was whether an insane suicide avoided the policy, took
occasion further to enforce these views : " According to matured
philosophy, and the corroborating authority of elementary writers
such as Prichard and Esquirol and Ray and Taylor, and of many
modern adjudications, both British and American, there may be
moral as well as intellectual insanity, and essentially distinguished
from it. When, as often happens from congenital malorganization
or supervenient disturbance of the normal condition of a ' sound
mind in a sound body,' the senses present false images which are
accredited 7iecessarily by the deluded victim as intuitive certainties,
no reasoning or proof can rectify the illusion of a mind in such ab-
normal condition, and, consequently, as no punitory sanction can
prevent the effect of such insane delusion, there is no legal respon-
sibility. But, while the senses are apparently sound and true, the
affections may be perverted or the moral sentiments unhinged in
such a degree as to subjugate the will to some morbid appetite or
ungovernable passion, and thus precipitate against the will insane but
conscious wrong. This is contra-distinctively called moral insanity.
Such are the forms of monomania entitled kleptomania, pyromania,
nymphomania, homicidal mania, etc., now well defined and recog-
nized as irresponsible insanity. Whether and how far these two
distinctive forms of insanity run into and sympathize with each
other is unknown. But generally the one is apparently untinged
by the other, and in moral dethronement by insane passion there
may be no delusion, but the will is overwhelmed by delirious pas-
sion, which it can neither stifle nor successfully resist." It was
held, therefore, that self-destruction under moral insanity was such
death as made the insurers liable, though the policy contained the
usual clause of avoidance in case of suicide.^

§ 178. But the authority of this opinion is more than neutralized
by the fact that it was delivered in a divided court, assented to by
two judges, and, in respect to the question of moral insanity, dis-
sented from by Chief Justice Williams and Judge Harding. " In

> See infra, §§ 531-678. 2 Ins. Co. v. Graves, 6 Bush, 268 ; 1

Big. Ins. Cas. 736.

171

§ 183.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

all the vague, uncertain, intangible, and undefined theories of the
most impracticable metaphysician in psychology or moral insanity,"
said Williams, C. J., "no court of last resort, in England or
America, so far as has been brought to our knowledge, ever before
announced such startling, irresponsible, and dangerous > proposition
of law, as that laid down in the inferior court. For, if this be law,
then no longer is there any responsibility for homicide, unless it be
perpetrated in calm, cool, considerate condition of mind. What is
this proposition when compressed into a single sentence ? That, if
his ' intellect was unimpaired, and he knew it was forbidden both
by moral and human laws,' yet, if at ' the instant of the act his
will was subordinated by any uncontrollable passion or emotion
causing him to do the act, it was moral insanity, and they ought to
find for the plaintiff.' Concede that it was through either passion
or mortification or fear of disgrace because of this rumor, and
instead of killing himself he had killed his brother, or some one
else whom he suspected of being connected with the rumor, should
this transaction of mortification or fear of disgrace have exempted
him from criminal responsibility ? If so, then indeed the more
violent the passion and desperate the deed the more secure from
punishment will be the perpetrator of homicide or other crimes.
The doctrine of moral insanity, ever dangerous as it is to
the security of the citizen's life, and pregnant as it is with evils to
society, has but little or no application to this case. Too uncertain
and intangible for the practical consideration of juries, and unsafe
in the hands of even the most learned and astute jurist, it should
never be resorted to for exemption from responsibility save on the
most irrefragable evidence, developing unquestionable testimony of
that morbid or diseased condition of the affections or passions so as
to control and overpower or subordinate the will before the act com-
plained of ; for, if the act is to be evidence of moral insanity for the
suicide, so it will be for the homicide, the parricide, and the seducer
and the ravisher."

[§§ 179-182 are omitted in this edition as superseded by other
material.]

§ 183. Irresponsibility from a supposed moral derangement, un-

Anaiysis of accompanied with mental insanity, is a defence on which,

?^^u'i^'°"^i at the risk of repetition, it is important to dwell with

insanity." some minuteness. It is to be met with in three ways:

172

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 184.

first, psychologically, by showing, as will hereafter be clone, ^ that
by sound psychological analysis such a position is untenable ;
secondly, practically, by proving that a careful induction gives us
no basis of fact on Avhich such a theory can be supported -^ and,
thirdly, judicially ,3 by showing that the position is repudiated by
the courts, and that, on the principles of philosophic jurispru-
dence, it cannot safely be maintained.

§ 184. On the last point, as above stated, a few observations
may now be made.

First, as to the consistency of this doctrine with the jnconsis-
safety of the community, which is one of the prime ob- 3^°*^^^^

iects of all penal law. commu-

. nity.

In the mediaeval jurisprudence, the clergy were ex-
empted from the operation of the secular law. Great evils resulted
from this ; the authority of the civil arm was weakened, and the
clergy themselves were demoralized. But for this position, mon-
strous as it was, there was some faint excuse at the time it was
introduced. The clergy, it was said, were good men, and they
were subject to ecclesiastical discipline which was prompt, exhaus-
tive, and severe. But the proposition now is to exempt from the
operation of penal law a class of men whose plea for this distinction
is that they are eminently had^ and that there is no other discipline
to which they can be subjected. If they are mentally insane — if
they are destitute of reason — then there is good ground for penal
irresponsibility. But if they are not mentally insane — if they are
possessed of reason — if their only plea is their excessive badness —
then this badness will be intensified, and rendered all the more
turbulent and desperate by the very intellectual sanity which it is
conceded that the actors possess, and which will readily instruct
them that they are privileged by the state to plunge irresponsibly into
any excesses they may desire. If they were destitute of reason,
their irresponsibility would be a less grievance. They would be
like the savage to whom powder is given, but who does not know
how to contrive means for using it to destroy others. But, being
possessed of reason, they are able to use their irresponsibility as an
immunity for every crime. And what is to be done with them ?

' Infra, §§ 533-539. 8 gge supra, § 163, for a particular

* Infra, §§ 552-572. enumeration of the adjudicated cases.

173

§ 185.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

Confinement in a lunatic asylum, is the answer. But such confine-
ment is difficult, (1) from the skill with which reason can create
counter-proof, and can, when there is an object for it, suppress or
conceal passion, and (2) from the enormous expense and trouble
which would attend the incarceration of so large a number of
patients as is here supposed. But can such persons be justly, on
this hypothesis, incarcerated ? How does incarceration differ from
imprisonment ? And what is imprisonment but punishment ? And
what would such punishment be but a penal discipline imposed com-
pulsorily by the law ? The difference between such penal discipline,
and that which the law now applies on conviction of a crime, is
simply, that in the first case the offender is tried for being generally
bad ; in the second, he is tried for a specific bad act. But he can-
not be tried for being generally bad, unless he is responsible. We
are therefore reduced to the dilemma either of allowing such per-
sons to roam at large, or of confining them, which assumes their
responsibility.

§ 185. Again, it is the duty of the state to require, on the part
of all persons endowed with reason, the exercise, under

State must ,,..,. „ , . ,, ^^ , . ,

enforce ex- penal discipline, 01 such reason, in all matters which con-
reason"^ cern the safety and health of the body politic. The
state, in this respect, is a delicate machine, over whose
mechanism every rational man has more or less control. It may
seem hard, to adopt the analogy of a railroad, to make it an indicta-
ble offence for a brakeman simply to fall asleep at his post, or for
the acting superintendent of a great corporation not to construct a
time-table sufficiently lucid and accurate to prevent possible colli-
sions. It may seem a hard thing to shoot an admiral of acknowl-
edged bravery for indecision in action, or to cashier and imprison
an engineer for a slight miscalculation as to the thickness of an
iron plate. Yet we all feel the necessity of such hardness for the
purpose of educating men at large in the exercise of all their facul-
ties when in discharge of public trusts. It is such discipline alone
that makes railway travel practicable, and that prevents a nation's
life from being carelessly sacrificed in war. Reason, in such cases,
is called forth, nerved, and pointed, by the penalty the law imposes
on its action. One of the chief functions of law is to educate by
penalty. Law cannot, except in certain very rare cases, command
a thing to be done. It can only punish when the thing is not done,
174

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 186.

or when a positive wrong is committed. Nor can it thus punish by
precept, or by mere expression of disapprobation. It must punish,
if it do so at all, by penal discipline ; and this discipline, to have a
moral effect, must be executed as announced. In other words,
supremacy of reason over passion, on the part of all persons possess-
ing such reason, is essential to the safety of the state ; and the
state is bound to educate its subjects to the exercise of their reason
to this extent. It needs careful engineers, careful sailors, careful
superintendents, and careful workmen ; and, to create this careful-
ness, it must impose penalties on carelessness. A fortiori, there-
fore, if it needs, among those concerned with its machinery, the
capacity to control passion by reason, must it impose penalties on
the yielding of reason to passion. This subordination among its
subjects, it is one of the highest offices of the state to create ; but
its only direct process for this purpose is by penal discipline. This
may, in some cases, work hardly, as it may do in the cases of rail-
way carelessness we have just noticed. But, in the one case as
in the other, it is the idea of respo7isihility that must be implanted
in each breast ; and this can only be done by exacting responsibility
among persons possessed with reason, as a general and absolute
rule.

§ 186. Then, as to the eflfect of these views on the individual
himself. If scrutinized carefully, the doctrine of the Nottore-
indissolubility of the connection between reason and -^J^f^^
responsibility can give no ground of personal complaint, courage it.
Even among "' moral lunatics" there is no one of whom we can say
that, in the earlier stages of his life, he might not have been taught
self-control. It would be a most cruel thing for a parent to say to
a young child, " you are so bad that I will not try to reform you."
And it would be an equally cruel and destructive thing to say,
" for the wrong you do I will not correct you."^ This would be
the sure course to bring up an irreclaimable class of bad men.
But, while it is one of the chief peculiarities of Christianity to
teach that no sinners are irreclaimable, so it is one of the most
merciful offices of government to say to all men that they can be
reclaimed. To rational beings who are supposed to have subordi-
nated their reason to their passions, we can imagine no more humane

» See supra, H 115-118 ; infra, U 403, 539.

175

§ 188.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

counsel to be spoken than this : " There is no such thing as irre-
sponsibility among those possessed of reason ; you will certainly
be punished if you break the law." The doctrine, on the other
hand, that irreclaimable guilt is irresponsible, is the sure way to
make irreclaimable guilt.

§ 187. And again, even assuming their responsibility, which on
Imprison- ^^^ hypothesis cannot be assumed, to imprison " moral
"?^'^* lunatics" on the charge of beino; " bad," instead of mak-

should a o '

depend on ing imprisonment dependent on conviction for a specific
of specific crime, would be subversive of one of the primary features
crime. of Anglo- American jurisprudence. As an illustration of

this we may mention the means proposed by Dr. Thomson, surgeon
to the General Prison for Scotland, whose argument in favor of
distinctive moral insanity is elsewhere noticed. Feeling the em-
barrassment of holding that a class of " moral lunatics," such as he
describes, should be emancipated from criminal discipline in its
ordinary sense, he seeks to relieve himself by a proposal not unlike
that adopted in Turkey when it is thought desirable to crush out a
rival family. " Moral insanity," he holds, is transmitted by sexual
propagation ; and hence " moral lunatics," or the incurably wicked,
are to be kept from having children. But how ? By the Turkish
method ? For this more summary and inexpensive process. Dr.
Thompson is not quite prepared. Another remedy, however, is
preferable, imprisonment during puberty. " Why," he asks,
" should they go to prison for short' periods only, to be sent out
again in renovated health, to propagate a race so low in physical
organization?" He afterwards proposes, for such cases, imprison-
ment for life. The latter, no doubt, is the only safe alternative, if
we accept the doctrine of moral insanity. The dilemma, therefore,
may be thus stated : if we accept the doctrine of moral insanity,
we must imprison the " moral lunatics" for life, on charge of being
generally bad ; if we reject this doctrine, we submit such persons
to ordinary penal discipline. But the first alternative is both cruel
and incompatible with Anglo-American jurisprudence. We must
therefore take the second.

§ 188. Nor, finally, can it be said that there are some men, who,
-, - while possessed of reason, are incapable of moral sense.

Moral sense ^ .

to be built and who are consequently to be withdrawn from the
ordinary operations of penal discipline. We have al-
176

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 189.

ready noticed the cruelty of this position to the persons thus de-
scribed, and the repugnance of the mode of imprisonment it pro-
poses to the principles of Anglo-American Jurisprudence. It is
enough now to say that, where the state does noi find amoral sense,
it is its duty to create one. That there is, among rational beings,
a moral sense always coexisting with reason, it is not necessary
here to maintain ; and it may be enough, for this purpose, to refer
to the impressive exposition of this view published by a great Eng-
lish thinker lately (1872) deceased.^ But, if we assume that there
is no such moral sense, then comes in the position just noticed, that
'the moral sense which the state does noi find it must huild u-p?

§ 189. Even, therefore, should we assume that there are cases
in which there is no moral sense or conscience, and in Efficiency

which the individual so constituted is left to the control of penal
. , . discipline

of his appetites and passions alone, it does not follow fortius
that punishment is not to be imposed. No more strenu- P'^'p^"®-
ous advocates of punishment are to be found than among the phi-
losophers who deny the existence of conscience. To except, they
argue, those whose moral sense is perverted or extinct, is to except
the very class for whose benefit, as well as for the safety of the
community, the law is required.^ But we must go beyond this and
hold that wherever there is reason there is responsibility, and
wherever there is responsibility there the wrong-doer is to be pun-
ished as a matter of justice in proportion to his Avrong.^

' "The Conscience;" Lectures on is not in all respects normal in its

Casuistry, delivered in the University action, and yet he is responsible for

of Cambridge, by F. D. Maurice. 2d his acts. Many of the insane are

Edition, 1872. clearly irresponsible, and their punisli-

2 See also infra, § 486. ment is demanded only by the imjjera-

3 Bee also supra, § 115 ; and infra, § five necessity which exists of securing
403. the safety of society by preventing

* Wh. Cr. L. 8th ed. § 1 e< seq. their committing criminal acts. This

In the International Review for Octo- should be done in that way which ex-

ber, 1881, is a valuable article by Dr. perience shows is most conducive to the

Hammond on tlie " Punishability of the accomplishment of the end in vievr,

Insane," from which the following is even if it involves the taking of the

extracted : — life of the lunatic. But tliere are

"An individual may be medically others, people with morbid impulses —

insane, and yet not a lunatic in a legal with delusions as to their mission as

sense. His brain is diseased, either reformers, messengers of God, etc. ;

temporarily or permanently ; his mind with intense egotism and desire for

VOL. I.— 12 177

§ 191.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

While experts may he called to testify as to states of mind and
conditions of health, it is for the courts to declare whether such
states and conditions constitute irresponsibility .

§ 190. Such, as the preceding pages have indicated, has been
the general practice both in England and the United
States. In 1870, however, in the supreme court of New
Hampshire, a case^ was decided by which this position
was in some measure assailed. The defendant, Pike,
was tried before Perley, C. J., and Doe, J., for murder
in perpetrating robbery. One of the defences appears to have
been " dipsomania," and on the trial the court instructed the jury
that " whether there is such a mental disease as dipsomania, and
whether defendant had that disease, and whether the killing of
Brown was the product of such disease, were questions of fact for
the jury."

§ 191. In the supreme court, this was affirmed, Smith, J., say-
ing : " This was correct. If there are any diseases whose ex-

Such the
general
rule. Ex-
ception in
New
Hamp-
Bhire.

notoriety, manifestly abnormal in char-
acter ; with tendencies toward the
performance of eccentric and unusual
acts ; with a total disregard for the
restraints upon individual indulgence
which, a decent sense of the opinions
of mankind requires ; of excessively-
developed passions, which lead them
to the commission of various bestial
crimes — but who nevertheless show
little or no want of intellectual power
(indeed this is often above the aver-
age), who transact their every-day
routine work with regularity and pre-
cision, and who reason logically and
clearly on the subject of their particu-
lar point of aberration. Such people
are medically insane ; their mental
processes are radically different from
those of mankind in general ; there is
some defect, inherent or acquired, in
the organization of their nervous, sys-
tems ; and the medical expert who
■goes into court and testifies to the fact
of their insanity is entirely justified,

178

by the accumulated experience of those
most competent to know, in so doing.
They are insane from a medical stand-
point, but they know right from wrong ;
they know legal acts from illegal ones ;
they are able at some time at least to
control their propensities, and their
delusions may be entirely without
reference to the alleged criminal act
they may have committed. While a
knowledge of right and wrong can never
be properly regarded as a test of insanity,
it is a test of responsibility ; and by knowl-
edge of right and wrong is not meant the
moral knowledge that a particular act would
be intrinsically right or wrong — in other
words, a sin — but that it would be contrary
to law. In reality, however, the indi-
vidual may not even have this knowl-
edge ; but he must have, in order to
make him responsible, the mental
capacity to have it." See also 15 Am.
L. Rev. 717.

' State V. Pike, 49 N. H. 399.

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 191.

istence is so much a matter of history and general Opinion in

, , , , , , •, • this case.

knowledge that the court may properly assume it in state?;.

charging a jury, dipsomania certainly does not fall within ^ ®'
that class. The court do not profess to have the qualifications of
medical experts. Whether there is such a disease as dipsomania
is a question of science and fact, not of law."

In an opinion, delivered in the same case, and supporting the
same view. Doe, J., went still further: "Whether the old or the
new medical theories are correct," he says in the course of his
argument, " is a question of fact for the jury ; it is not the business
of the court to know whether any of them are correct." " It is
often difficult to ascertain whether an individual had a mental dis-
ease, and whether an act was a product of that disease; but these
difficulties arise from the nature of the facts to be investigated, and
not from the case ; they are practical difficulties to be solved by
the jury, and not legal difficulties for the court." " To say that
the expert testifies to the tests of mental disease as a fact, and the
judge declares the test of criminal responsibility as a rule of law,
is only to state the dilemma in another form. For, if the alleged
act of a defendant was the act of his mental disease, it was not in
law his act, and he is no more responsible for it than he would be
if it had been the act of his involuntary intoxication, or of another
person using the defendant's hand against his utmost resistance ; if
the defendant's knowledge is the test of responsibility in one of
these cases, it is the test in all of them. If he does know the act
to be wrong, he is equally irresponsible whether his will is over-
come, and his hand used, by the irresistible power of his own mental
disease, or by the irresistible power of another person. When
disease is the propelling, uncontrollable power, the man is as inno-
cent as the weapon — the mental and moral elements are as guiltless
as the material. If his mental, moral, and bodily strength is sub-
jugated and pressed to an involuntary service, it is immaterial
whether it is done by his disease, or by another man, or a brute,
or any physical force of art or nature set in operation without any
fault on his part. If a man knowing the difference between right
and wrong, but deprived, by either of those agencies, of the power
to choose between them, is punished, he is punished for his inability
to make the choice — he is punished for incapacity ; and that is the
very thing for which the law says he shall not be punished. He

179

§ 193.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

might as well be punished for an incapacity to distinguish right
from wrong, as for an incapacity to resist a mental disease which
forces upon him its choice of the wrong. Whether it is a possible
condition in nature for a man knowing the wrongfulness of an act
to be rendered by mental disease incapable of choosing not to do it
and of not doing it, and whether a defendant in a particular instance
has been thus incapacitated, are obviously questions of fact. But,
whether they are questions of fact or of law, when an expert testi-
fies that there may be such a condition, and that, upon personal
examination, he thinks the defendant is, or was, in such a condi-
tion— that his disease has overcome, or suspended, or temporarily
or permanently obliterated, his capacity of choosing between a
known right and a known wrong — and the judge says that knowl-
edge is the test of capacity, the judge flatly contradicts the expert.
Either the expert testifies to law, or the judge testifies to fact.
From this dilemma, the authorities afford no escape.

" The whole difficulty is, that courts have undertaken to declare
that to be law which is a matter of fact. The principles of the law
were maintained at the trial of the present case, when, experts
having testified as usual that neither knowledge nor delusion is the
test, the court instructed the jury that all tests of mental disease
are purely matters of fact, and that, if the homicide was the off-
spring or product of mental disease in the defendant,, he was not
guilty by reason of insanity."

§ 192. Is, then, responsibility a question of fact, to be determined
by the jury on the testimony of experts ? Is the judge, on issues
of insanity, to leave the whole question, including that of responsi-
bility, to experts to decide, telling the jury that they are to accept
the experts' rendering ? Is, in other words, the " test of criminal
responsibility" a matter of fact, to be deposed to by experts, and
found by the jury on their testimony ? Such are the questions
that are involved in the positions just stated, and which are now to
be discussed.

§ 193. It is conceded by the learned judge who delivered the

opinion which has last been quoted, and which maintains

opinion is the affirmative of the points just stated, that the views

tionoHrre- ^® advances are in conflict with the great body of Eng-

sponsibiiity ligfi and American decisions on the same topic. This,

is for court. . „ . . . „

in fact, will be abundantly verified by an inspection of
180

INSANITY AS A DEFENCE TO CHARGE OP CRIME. [§ 194.

the preceding pages, where the course of English and American
judicial precedent in this relation is exhibited. It is proposed now
to pass the question of authority, therefore, as one that does not
admit of dispute, and to adduce some general reasons to show why,
so far from accepting the positions which have been so ably main-
tained by the New Hampshire judges, we must reaffirm the view
already announced — 'that, while experts may be called to testify as
to states of mind and conditions of health, it is for the court to
declare whether such states and conditions constitute irresponsi-
bility.

§ 194. First, let it be remembered that American common law
courts have no process for the collection of the opinions ^.^ ,,
of experts on litigated questions of criminal responsi- i^ obtain-
bility. A case comes on to be tried in one of our crim- expert
inal courts. In the great majority of our jurisdictions *^® I'^o^y-
there is no law by which a commission can issue to take the deposi-
tion of witnesses out of the reach of local process. Even in those
jurisdictions where such a law exists, there is no reported case of a
witness, residing at a distance, being examined by deposition.
Indeed, even where this is technically legal, the step is one which
parties would be very unlikely to take. An expert, in order to
give an opinion to which the jury will attach weight, must visit the
patient personally. Hence it is that practically, in- seeking for
experts, the parties are limited to those whom they can produce on
trial. Of course, when there is wealth, or when the state makes,
as it very rarely does, suitable provision, experts may be brought
from a distance. But, whether brought from a distance or taken
from the immediate neighborhood, they are open to the very serious
objection that they are unofficial persons selected by the party call-
ing them because their preascertained views will serve that party's
necessities.^ For we have in none of our states governmental
boards of experts, chosen as independent arbiters, on the same
basis as our courts of law. Hence it is that the experts, whose
testimony the jury are to take, are simply volunteer theorists.
So far as concerns the defendant, they are called by him because,

1 See infra, § 295. See an article partly by the parties, in 30 Am. Journ.
advocating a commission of experts to Ins. 312.
be appointed partly by the court and

181

§ 195.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

from their opinions already advanced, their views favor his defence*
It is by the defence, indeed, that testimony of experts, in issues of
insanity, is mainly produced. It is natural that it should be so,
for not only is the burden of proof on the defence, but the interest
the defendant has at stake is so enormous that his whole energies,
and his entire estate, as well as the full professional nerve and
pride of his counsel, will be exhausted in bringing his case fully
before the court. Just so far as the 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 par-
ticular point of reliance, on the prosecution. The prosecution has
generally to reply, as best it can, with any testimony which, at the
moment and spot, it can catch up.

§ 195. But, be this as it may, each party has certain theories to

be proved, and each party looks around for experts to
monyTs^*^" prove such theories. Now, it so happens, that there is
partial and scarcely a single hypothesis as to responsibility, no

matter how wild, which, among the large number of
experts who have concerned themselves with this branch of study,
has not its advocates. Some particular hypothesis is a convenient
one for the emergencies of the case, and consequently the expert
who believes it is sought out and summoned. But he and the few,
as it may be, who agree with him are summoned alone. The great
mass of experts, embracing ninety-nine hundredths of the entire
body, are left uncalled. There is undoubtedly one good physical
reason for this. No court-room, though as large as the Roman
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 remuneration during the very
protracted investigations that would ensue. No court would have
time for such trials ; and, indeed, it would be impossible to tell how
long such a suit would continue. No humane government would
permit a course which, by thus confining all the experts of the land
(even if we stopped here) in , one spot, for an indefinite period,
would leave their innumerable patients and Avards for so long a time
without guidance. But, independently of this objection, reason
182

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 196.

enough for a narrow selection is found in the fact that each party
calls only the experts that -will prove his case, and no more.^

§ 196. Now, how has this practically resulted ? We believe
that the reports of our criminal trials show that wherever Extrava-
it is necessary to rely on some extravaorant and unique gance of

•^ '' . the theories

psychological theory to make out a defence, this theory it brings
will be sustained by experts. Thus, in a remarkable
Kentucky case, hereafter to be more fully noticed,^ it was testified
by experts, and apparently without contradiction, that all persons
committing suicide are insane, and that consequently (a conclusion
in which fortunately the court did not coincide), the exception of
suicide in life-insurance policies is a nullity. So in the case of
Arthur O'Connor, who was tried in London, in April, 1872, for an
assault on the queen. Dr. Tuke testified to the prisoner's insanity,
because he had no sense of his situation, and because he " argued
in a circle," which facts were declared by an opposite medical ex-
pert to prove just the contrary, while Dr. Sheppard, Professor of
Psychological Medicine in King's College, and head of the Colney
Hatch Asylum, announced, in an article in the Lancet^ that Dr.
Tuke's position was "monstrous." In Andrews' case,^ where the
defence was mania transitoria, one physician (a gentleman highly
respectable, but standing almost alone on this question) was brought
to testify to the psychological soundness of the defence ; while the
prosecution limited itself to but one expert in reply, though it could
have found a thousand to indorse what that expert said. So in the
case now immediately before us, " dipsomania" is spoken of as
proved by medical experts ; and it is said to be the law that if these
experts declare that there is such a disease as " dipsomania," and
that "dipsomania" confers irresponsibility, then the defendant is
irresponsible.^ But what experts ? Who are to declare this ?

' See infra, §§ 275, 293. See also knowing he wonld not go far enough,

articles in 35 Am. Journ. Ins., pp. 1, Scientific evidence, he says, is always

375. A curious proof of this will be hampered when given by way of ques-

found in an article by Dr. Yellowlees tion and answer.

on Barr's trial, 22 Journ. Ment. Sci., * Ins. Co. v. Graves, 6 Bush, 268 ;

p. 235. He tells us that, testifying as infra, § 236.

an expert, neither side asked his opin- ' Supra, § 162.

ion as to the prisoner's power of self- * The unsoundness of the hypothesis

control — whether it was overcome by of "dipsomania" will be hereafter

the delusion — one side fearing that he shown, infra, § 639.
would go too far and the other side

183

§ 197.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

Those selected by the defendant out of the small knot of psycholo-
gical 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 imperfectly? Is the judge to shut his
eye to the fact, that by almost all modern psychologists — by all
the governmental forensico-legal experts of Germany, by whom
such great breadth and ability of diagnosis are exhibited, and by
whom such unparalleled patience and compass of induction are
exercised — by at least the great majority of English and American
alienists — the theory of distinct moral monomania, the mind remain-
ing sane, is not only repudiated but denounced ? But how is this
fact to be shown ? The prosecution has not means or time, even if
it has the desire, to bring these eminent men to the witness-stand.
There is no process, in other words, by which the true sense of ex-
perts, taking them as a body, can be obtained. The test, therefore,
is one which, from the inadequacy of our judicial machinery, we
cannot apply .^

§ 197. But, again, even supposing experts of conflicting views

could be fairly and freely summoned, so as to give the
exists to de- jury the full testimony of science on the questions in
o/exDerts^* 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 the
fact that in each state there is a final court of appeal, this difficulty
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

' See infra, § 295. A correction of report thereon to the court," which

this has been, it is true, attempted in may then act on the case, and in its

New York; by the Revised Statutes discretion remand the party to the

(Part I. ch. XX. § 20), the court of lunatic asylum. The governor is given

oyer and terminer, where " any person the same power in capital cases ; and,

in confinement under indictment for by § 26, the county judge may investi-

the crimes of arson, murder, or attempt at gate the cases of persons confined un-

murder, or highway robbery, shall appear der other than civil process, who ap-

to be insane," is given power summa- pear to be insane, and shall "call two

rily to inquire into the question, and, respectable physicians and other cred-

for this purpose, to "appoint a com- ible witnesses," and if necessary im-

mission to examine such person and panel a jury,
inquire into the facts of his case and

184

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 198.

opinions promulgated, lies our safety. Take, for instance, to repeat
a prior illustration, the question of moral insanity. If moral in-
sanity be established by the courts, then the legislature can take
measures to have all persons " morally insane" placed in insane
asjlums, so that no injury to the community can ensue from their
running at large. Or, if the courts hold that " moral insanity" is
not a defence, then persons of this class will be held responsible
penally for their misdoings, or placed under bonds to keep the
peace. But if the rule is to be laid down by experts called freshly
in each particular case, with no court of appeal, it will be impos-
sible to have any settled law. The experts selected in one case
will prove entirely a 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, leading specialists in this department as wit-
nesses, the prevalent testimony will be that there is no such thing
as either monomania or " moral insanity" as a distinct insane affec-
tion. On the other hand, in a case in which the defendant's mental
sanity is indisputable, and his life may depend on his proving that
" moral insanity" is a good defence, experts who hold to " moral
insanity" are called to prove that it exists; and " moral insanity" is
so far established. From neither of these decisions is there any
appeal. There is no mode of harmonizing them. JSTor is it possible
to tell what the future may bring forth, except that each party will
call such experts as are most favorable to his views. Now, to
speak of the opinions of such exceptional experts as the opinions of
experts in general, and declare it to constitute the rule of insanity,
is about as reasonable as it would be to speak of the arguments of
counsel employed to argue on a series of isolated cases, as consti-
tuting the law of the land. The fact is there is no settled and final
opinion of experts, to supply the test which is here invoked, be-
cause there is no final court by whom conflicts among experts can
be reconciled, and a settled law pronounced.

§ 198. But, afier all, we must next observe that the proposed
submission of the test to experts for decision is an illusion,
for the court will have to explain what it is that the ex- ^er^^h te^tl-
perts say. No court can abdicate its functions of weigh- ™°°y °^ ^

, , . , ° the experts.

ing testimony and of declaring what testimony means.

It is, indeed, a fundamental maxim of the law that witnesses are

185

§ 199.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

not to be counted, but weighed. Let us take, as illustrating this
necessity, the celebrated Windham case, elsewhere more fully
noticed.^ A petition of lunacy was taken out against Mr. Wind-
ham, his nearest relatives being the petitioners. His course was
shown to have been since his boyhood — at the time of the inquisi-
tion he was not much older than twenty-one — one of reckless and
imbecile profligacy ; and some of the most eminent experts, called
for the petitioners, declared that he was wanting in capacity to
manage his own affairs. But the testimony thus produced was
overborne, as to numbers, by a mass of other experts, who, on
examination far more superficial, and on tests far less thorough,
pronounced for the respondent's competency.^ Of course in such
cases there was but one course open to the master in lunacy by
whom the inquisition was held. His duty was to say where the
weight of the testimony was, and by what tests it was to be proved.
So it must always be in cases of conflict of evidence. Yet to
declare, supposing the testimony of experts to be " law," where
the weight of this testimony lies, is really to declare what the law
itself is.^

§ 199. Nor can harmony be by any other course adjusted between
And decide ^ivil and criminal law. In many classes of probate cases
upon It. ^i^g question of a testator's sanity is taken from the jury
and determined exclusively by the court. In all civil issues this is
forced by demurrers either to the pleading or to the evidence.
Even on jury trials, the legal relations of the testimony of experts
can be removed by bills of exceptions, or by appeal, to the superior
court. To declare that in criminal cases such questions are solely
for the jury, guided by experts, would be to introduce not merely
clashing of courts, but failure of justice. A man would be sane by
one class of proceedings, and be insane by another. After being
declared responsible by an inquisition of lunacy, he might be de-

' See supra, § 106. Jones, Butler, Harbeson, and Berkey

2 Similar cases have occurred in the on the one side, and Doctors Morton,

United States. See Winter's case, re- Groves, Seltzer, and Childs on the

ported 27 Am. Journ. Ins. 47, and other, present a diversity of profes-

Com. V. Haskell, 2 Brewst. 491, in sional opinions. This is not unusual."

which Judge Brewster said: " If we ^ See more fully, as to weight to be

look at the medical testimony, we find attached to testimony of experts, infra,

an even balance of numbers. Doctors § 293.

186

INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 199 rt.

clared irresponsible by a jury on an indictment for crime ; and thus
would he be too irresponsible to be punished as a criminal, and yet
not irresponsible enough to be placed in an insane asylum. Or,
under the direction of experts of opposite views, a man who, in a
civil court, would be held insane, might be convicted by a jury as
sane, without any right, on the hypothesis here combated, of appeal-
ing to the court for redress.

§ 199 a. But, finally, we must fall back on the position already
fully argued, that the question of irresponsibility is one
that cannot, consistently with public justice, be surren- sponsibmty
dered by the courts. Responsibility is a judicial ques- q^festlon^^^
tion. It is one of the highest grade. It touches the most
cherished prerogative of citizen and state. It involves in its crimi-
nal relations two topics, both of which are in the range of juridical
philosophy, and both of which should be decided, in each case that
arises, by officers of the state, appointed by the state, bound by
fixed rules, and advised, before they decide, by counsel who will
present both sides of the question at large. One of these topics is
the relation of responsibility to reason, and here arises the principle,
heretofore discussed on gi-ounds purely juridical,^ that wlierever
there is reason there is responsibility. The other topic is that of
the divisibility of the Ego into distinct factors, one of which can
become insane while the other is sane ; and in this is involved the
position, hereafter to be vindicated,^ that there is no such thing as
moral insanity coexistent with mental sanity. These points are not to
be finally adjudicated by experts, who are neither appointed by the
state so as to be independent of special influence, nor are selected
from their general judicial fitness, nor are bound by precedent, nor
are advised, before they come to a decision, by counsel presenting
fully both sides. Experts are no doubt to give facts, though their
explorations of facts should not be made without notice to the oppo-
site 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, ap-
pointed by the state, independent of the parties, and advised by
counsel, remember that their decision is to be part of a harmonious
and equal system of public law, and that for their rendering of it

« See supra, §§ 110, 185-188. 2 Infra, §§ 533-572.

187

§ 200.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

they are responsible to the state from which their appointment pro-
ceeds.^

6. Predisposition to insanity as lowering the grade of guilt.

§ 200. It has already been abundantly shown that there are con-
ditions of mind in which actual insanity cannot be said
Capacity of , .,.,.,, .

party mea- to have set in, but m which there are insane predisposi-
ffuut^ tions tending to either undue mental exaltation, or undue

mental depression.^ A psychical condition, inherited, it
may be, or the result of some physical cause, makes the patient
incapable, when excited, of due deliberation, renders it difficult for
him to cool, or disturbs his mind when it comes to act on the
question of intent. Such a man, for instance, in an excitement
which this psychical state makes far more intense and protracted than
it would be among persons of ordinary mental health, kills another.
Is he to be acquitted ? Certainly not ; for he cannot, on any sound
principles psychological or legal be declared insane. Is he to be
convicted of murder in the first degree, and hung? This, were
the defendant a person of healthy and normal temperament, would
be perhaps the natural sequence of the trial, should it appear that
the homicide was deliberately executed. But, suppose the case of
a man who, from insane predisposition, instead of cooling down
after the first flush of hot blood, falls into a state of morbid excite-
ment continuing and perhaps growing for weeks. Is such a man
to be judged, as to a homicide committed during such excitement,
by the same rules as apply to a person whose passions have had
time to subside ? In other words, are " cooling time," and "intent"
and " premeditation," to be gauged by the capacity of the ideal
rational man, or that of the person under trial ? That the latter
view should be taken — that we should determine these questions
according to the capacity of the defendant himself, has been already
incidentally argued, and may be confirmed by many analogies of
penal jurisprudence. In this Avay do we judge those conceptions
of danger which justify a party in resorting to violent means of
self-defence \^ so do we determine responsibility in cases of sleep-
drunkenness and somnambulism ; so do we estimate the conduct of

' See, as to expert testimony in in- ^ Supra, § 181.
sanity, Wh. Cr. Ev. § 417. » Supra, §§ 125-145.

188

INSANITY AS A DEFENCE TO CHARGE OP CRIME. [§ 200 a.

persons when roused by any great political or religious excitement;^
and so we hold in cases of intoxication, when called upon to measure
deliberation and intent.^ If, in cases where homicide has been com-
mitted during an excitement which the defendant's peculiar psychical
state has abnormally protracted and intensified, a verdict of murder
in the second degree, or of manslaughter, is given in accordance
with these views, a result is reached which is not only in accord
with sound principle, but is far more consistent with the public idea
of justice than would be a verdict either of not guilty, or of murder
in the first degree.^ This, in fact, is, under the North German
code, the established law in Germany. That it is recommended by
high medical authority, will be hereafter seen. Mr. Stephens
lends his valuable authority to the same view.^ " Partial insanity"
he says, " may be evidence to disprove, the presence of the kind of
malice required hy the law to constitute the particular crime of
which the prisoner is accused. A man is tried for wounding with
intent to murder. It is proved that he inflicted the wound under a
delusion that he was breaking a jar. The intent to murder is dis-
proved, and the prisoner must be acquitted ; but if he would have
no right to break the supposed jar, he might be convicted of au
unlawful and malicious wounding."

7. Capacity of insane defendants to plead.

§ 200 a. By statutes existing in England, and in several of the
United States, it is competent for the defendant's counsel pi-giimin-
to formally plead insanity, as a special preliminary de- ary inquest
fence, in which case an inquest is taken to determine the plea of in-
issue, " sane or insane."® Where a jury is impanelled
to try whether a prisoner is insane or not at the time when he is

1 Wh. Cr. L. 8lli ed. § 47. mor<^ rigidly, than it now does." — Dr.

2 See infra, §§ 211-214, and see par- Seguin, in North Am. Rev., Jan. 1882,
ticularly Roberts v. People, 19 Mich. p. 21.

401, infra, § 211. ^ ggg^ jn illustration of this, Mc-

" I believe that the criminal insane Gregor's case, reported and commented

should be held just as responsible to on, 23 Am. Journ. Ins. 549.

human punishment — i. e., preventive * Criminal Law of England. Lon-

and educating punishment — as sane don, 1863, p. 92.

criminals. Society must protect itself ^ See R. v. Goode, 7 A. & E. 536 ; R.

against crime more intelligently, yet v. Dwerryhouse, 2 Cox, C. C. 446.

189

§ 201.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

brought up to plead to an indictment, the counsel for the prosecution
is to begin and call his witnesses to prove the sanity of the prisoner.^
But, where a jury is impanelled, at the instance of the counsel for
a prisoner, to try whether he was insane or not at the time of the
commission of the offence, the burden, in English practice, is on the
defence. 2

§ 201. Where the defendant from insanity is incapable of plead-
ing, the court will disregard his plea of guilty, or any
fendant in- confessions of guilt he may offer. And even his pro-
toTear* testations of " sanity" will be disregarded, if there be
adequate proof that he is insane,^ The defence of in-
sanity may be taken by his counsel against his will, though he may
be personally alloAved to call witnesses to disprove it.*

The practice in respect to pleading by persons deaf and dumb is
discussed fully in another work.^

1 R. V. Davies, 6 Cox, C. C. 326 ; 3C. * Ibid. ; State v. Patten, 10 La. Ann.
& K. 328. 299.

2 R. r. Turton, 6 Cox, C. C. 385. 5 wii. Cr. PI. & Pr. § 417. For

3 R. V. Pearce, 9 C. & P. 667. pleading by lunatics see Wh. Cr. L.

8th ed. § 57,

190

INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. [§ 202.

CHAPTER V.

INTOXICATION AS A DEFENCE TO CHARGE OF CRIME.

1. Permanent insanity produced by intoxi-
cation affects responsibility in the same
way as insanity produced by any other
cause.

Delirium tremens an insane condition,
§ 202.

When complete extinguishes responsi-
bility, § 203.

Such the law in this country, § 204.

But delirium must be strictly proved,
§ 205.

Delirium distinct from frenzy of drink,
§ 206.

2. Temporary insanity, immediately pro-
duced by intoxication, does not destroy
responsibility, where the patient, when
sane and responsible, made himself vol-
untarily intoxicated.

Mere drunkenness does not avoid re-
sponsibility, § 207.

This view necessary to public safety,
§ 208.

Sustained by all authority, § 209.

Drunkenness admissible to disprove
specific intent, § 210,

.3. While intoxication per se is no defence
to the fact of guilt, yet, whenihe question
of intent or premeditation is concerned,
it may be proved for the purpose of de-
termining the precise degree.

Degree may be determined by fact of
drunkenness, § 214.

Same view taken in England as re-
gards intent, § 215.

Unsettled opinion where provocation
existed, § 216.

Drunkenness relevant on issue of ma-
lice, § 217.

1. Permanent insanity produced hy intoxication affects responsi-
bility in the same way as insanity produced by any other cause.

§ 202. If a man ■who, laboring under delirium tremens, kills
another, is made responsible, there is scarcely any

„ . . , . , ,., • • 1 ij J. Delirium

species of insanity which, on like principles, wouid not tremens an
be subjected to the severest penalties of criminal law. d°tiom'^°°
" It may be the immediate effect," says Dr. Ray,^ " of
an excess, or series of excesses, in those who are not habitually
intemperate, as well as in those who are ; but it most commonly
occurs in habitual drinkers, after a few days' total abstinence from
spirituous liquors. It is also very liable to occur in this latter class

> Med. Jur. 438.

191

§ 202.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

Avhen laboring under other diseases, or severe external injuries,
that give rise to any degree of constitutional disturbance. The ap-
proach of the disease is generally indicated by a slight tremor and
faltering of the hands and lower extremities, a tremulousness of the
voice, a certain restlessness and sense of anxiety which the patient
knows not how to describe or account for, disturbed sleep, and im-
paired appetite. These symptoms having continued two or three
days, at the end of which time they have obviously increased in
severity, the patient ceases to sleep altogether, and soon becomes
delirious. At first the delirium is not constant, the mind wander-
ing during the night, but, during the day, when its attention is
fixed, capable of rational discourse. It is not long, however, before
it becomes constant, and constitutes the most prominent feature of
the disease. Occasionally the delirium occurs at an earlier period
of the disease, and may even be the first symptom of any disorder.
This state of watchfulness and delirium continues three or four
days, when, if the patient recover, it is succeeded by sleep, which
at first appears in uneasy and irregular naps, and lastly in long,
sound, and refreshing slumbers. When sleep does not supervene
about this period, the disease is fatal ; and whether subjected to
medical treatment or left to itself, neither its symptoms nor its
duration are materially modified. The character of the delirium
in this disease is peculiar, bearing a stronger resemblance than any
other form of mental derangement to dreaming. It would seem as
if the dreams which disturb and harass the mind during the imper-
fect sleep that precedes the explosion of the disease continue to
occupy it when awake, being then viewed as realities, instead of
dreams. The patient imagines himself, for instance, to be in some
peculiar situation, or engaged in certain occupations, according to
each individual's habits and profession ; and his discourse and con-
duct are conformed to this delusion, with this striking peculiarity,
however, that he is thwarted at every step, and is constantly meet-
ing with obstacles that defy his utmost efforts to remove. Almost
invariably the patient manifests, more or less, feelings of suspicion
or fear, laboring under continual apprehension of being made the
victim of sinister designs and practices. He imagines that certain
people have conspired to rob or murder him, and insists that he can
hear them in an adjoining apartment arranging their plans and
preparing to rush into his room ; or that he is in a strange place,
192

INTOXICATION AS A DEFENCE TO CHARGE OF CRISIS. [§ 203.

where he is forcibly detained, and prevented from going to his own
home. One of the most common hallucinations is to be constantly
seeing devils, snakes, vermin, and all manner of unclean things
around him and about him, and filling every nook and corner of his
apartment. The extreme terror which these delusions often inspire
produces in the countenance an unutterable expression of anguish,
and, in the hope of escaping from his fancied tormentors, the
Avretched patient endeavors to cut his throat or jump from the
window. Under the influence of these terrible apprehensions he
sometimes murders his wife or attendant, whom his disordered
imagination identifies with his enemies, though he is generally
tractable, and not inclined to be mischievous. After perpetrating
an act of this kind, he generally gives some illusive reason for his
conduct, rejoices in his success, and expresses his regret at not
having done it before."^

§ 208. As far as concerns temporary incapacity, therefore,
delirium tremens acts in the same way as any other
delirium, and, when complete, destroys responsibility. pietTextin-

The only question, therefore, is whether there is any- guishes re-
. .... eponsibility

thing in the source from Avhich it is derived which re-
quires that it should be exempted from the general rule by which
delirium forms a good defence to an indictment for a criminal
offence. In the dicta of one or two of the older law writers, this
exception is sought to be sustained on the ground that a drunkard,
in every stage, is a voluntary demon, and that he can no more use
his consequent mania as a defence than can the man who kills
another by a sword allege that it was the sword, and not himself,
that was the guilty agent. But to this the answer is threefold :
(1) that delirium tremens is not the intended result of drink in
the same way that drunkenness is; (2) that there is no possibility
that delirium tremens can be voluntarily generated in order to
afford a cloak for a particular crime ; (3) that, so far as original
cause is concerned, it is not peculiar in being the offspring of indis-
cretion or guilt, for such is the case with almost every other species
of insanity. These points scarcely need to be expanded. The fact
is, delirium tremens runs the same course with most of the other

' See an interesting case of Oinomamia in 8 Amer. Journ. of Insan. 3 ; and
see infra, " Dipsomania," § 639.

VOL. I.— 13 193

§ 205.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

classes of insanity known in the criminal courts. It is the result,
like most other manias, of prior vicious indulgence ; but it differs
from intoxication in being shunned rather than courted by the
patient, and in being incapable of voluntary assumption for the pur-
pose of covering guilt.

§ 204. Reason, therefore, undoubtedly teaches us that a person
„ who is incapacitated from moral and intellectual agency,

law in this by reason of delirium tremens, is irresponsible ; and
such is the law, as decided in repeated instances.^ Thus,
in the leading American case, Story, J., declared criminal responsi-
bility not to attach where the delirium is the " remote consequence"
of voluntary intoxication, " superinduced by the antecedent ex-
haustion of the party, arising from gross and habitual drunkenness,
HoAvever criminal," he proceeded to say, " in a moral point of
view, such an indulgence is, and however justly a party may be
responsible, for his acts arising from it, to Almighty God, human
tribunals are generally restricted from punishing them, since they
are not the acts of a reasonable being. Had the crime been com-
mitted when Drew (the defendant) was in a fit of intoxication, he
would have been liable to be convicted of murder. As he was not
then intoxicated, but merely insane from an abstinence from liquor,
he cannot be pronounced guilty of the offence. The law looks to
the immediate, and not to the remote cause ; to the actual state of
the party, and not to the causes which remotely produced it. Many
species of insanity arise, remotely, from what, in a moral view, is
a criminal neglect or fault of the party : as from religious melan-
choly, undue exposure, extravagant pride, ambition, etc. Yet such
insanity has always been deemed a sufficient excuse for any crime
done under its influence."

§ 205. In a still earlier case of at least equal authority, the court

told the jury that if they " should be satisfied by the evi-

rium'^must dence that the prisoner, at the time of committing the act

be strictly charjied in the indictment, was in such a state of mental
proved. ^ . . „ . .

insanity, not produced by the immediate effects of intoxi-

I R. !;. Thomas, 7 C. & P. 817 ; R. v. Com. v. Green, 1 Ashm. 289 ; and

Meakin, 7 C. & P. 297 ; Rennie's case, other cases cited in Wh. Cr. L. 8th ed.

1 Lew. C. C. 76 ; U. S. v. Drew, 5 § 48 ; 1 Hale, 32 ; 1 Russ. on Cr. 7 ; 4

•Mason, 28 ; U. S. v. Forbes, Crabbe, Black. Com. 26.
558; U. S. V. McGlue, 1 Curt. C. C. 1 ;

194

INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. [§ 205.

eating drinks, as not to have been conscious of the moral turpitude
of the act, they should find him not guilty."^ And expressly to
this very point is a more recent case, where a federal judge of high
authority told the jury that, if the defendant was " so far insane as
not to know the nature of the act, nor whether it was wrong or not,
he is not punishable, although such delirium tremens is produced
by the voluntary use of intoxicating liquors."^

' U. S, V. Clarke, 2 Cranch, C. C. R.
158 ; S. P. State v. Hundley, 46 Mo.
414.

2 U. S. V. McGlue, 1 Curtis, C. C. R.
1. This case we give in full : —

The prisoner, who was second officer
on board the barque Lewis, was in-
dicted for the murder of the first officer
of that vessel while on board. The
defence was insanity. The other facts
appear in the charge of the court.

Curtis, J. The prisoner is indicted
for the murder of Charles A. Johnson.
It is incumbent on the government to
prove the truth of every fact in the in-
dictment necessary in point of law to
constitute the offence. These facts are
in part controverted, and in part, as I
understand the course of the trial, not-
controverted ; and it will be useful to
separate the one from the other. That
there was an unlawful killing of Mr.
Johnson ; that the mortal wound was
inflicted by the prisoner at the bar ; that
this wound was given and the death
took place on board the barque Lewis ;
that Johnson was the first, and the
prisoner the second officer of that ves-
sel at the time of the occurrence ; that
the vessel at that time was either on the
high seas, as is charged in one count,
or upon waters within the dominion of
the Sultan of Muscat, as is charged
in another count ; and that the ijris-
oner was first brought into this district
after the commission of the alleged of-
fence— do not appear to be denied ; and
the evidence is certainly sufficient to
warrant you in finding all these facts.

It is not upon a denial of either of these
facts that the defence is rested, but
upon the allegation by the defendant,
that at the time the act was done he
was so far insane as to be criminally
irresponsible for his act. And this
brings you to consider the remaining
allegation in the indictment which in-
volves this defence. It is essential to
the crime of murder that tiie killing
should be from what the law denomi
nates malice aforethought, and the
government naust prove this allegation.
Now, if you believe the evidence,
there can be no question, that the kill-
ing was malicious, provided the pris-
oner was at the time in such a condi-
tion as to be capable, in law, of malice.
If he was then so insane that the law
holds him irresponsible, it deems him
incapable of entertaining legal malice ;
and one main inquiry in this case is,
whether the prisoner, when he struck
the blow, was so far insane as to be
held by the law irresponsible for inten-
tionally killing Mr. Johnson.

Some observations have been made
by the counsel of each side respecting
the character of this defence. On the
one side it is urged that the defence of
insanity has become of alarming fre-
quency, and that there is reason to
believe that it is resorted to by great
criminals to shield them from the just
consequences of their crimes ; that
there exist in the community cc^rtain
theories concerning v.'hat is called
moral insanity, broug..t forvvanl on
trials of this kind, tending to .^ulivert

195

§ 205.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

When delirium tremens is set up as a defence, the prisoner must
show that he was under a delirium at the time the act was perpe-

the criminal law, and render crimes
likely not to be punished. On tlie
other hand, the inhumanity and injus-
tice of holding him guilty of murder
who was not at the time of the act a
reasonable being, have been brought
before you in the most striking forms.

These observations of the counsel on
both sides are worthy of your atten-
tion, and their eiFect should be to cause
you to follow steadily, carefully, and
exactly, the rules of law upon this
subject. The general question, whe-
ther the prisoner's state of mind when
he struck the blow was such as to ex-
empt him from legal responsibility, is
a question of fact for your decision.
But there are certain rules of law
which you are bound to apply, and
the court, upon its responsibility, is to
lay down ; and these rules, when ap-
plied, will conduct you to the only
safe decision.

You will observe, then, that this de-
fence of insanity is to be tested and
governed by principles of law, and not
by any loose general notions which
may be afloat in the community, or
even the speculations of men of science ;
and I now proceed to state to you such
of them as are applicable to this
case.

The first is, that the defendant must
be presumed to be sane till his insanity
is proved. Men, in general, are suffi-
ciently sane to be responsible for their
acts. To be irresponsible because of
insanity is an exception to that general
rale. And, before any man can claim
the benefit of such an exception, he
must prove that he is within it. .

You will, therefore, take it to be the
law, that the prisoner is not to be ac-
quitted upon the ground of insanity,

196

unless upon the whole evidence you
are satisfied that he was insane when
he struck the blow.

The next inquiry is. What is meant
by insanity ? What is it which exempts
from punishment, because its existence
is inconsistent with a criminal intent ?
Clearly, it is not every kind and de-
gree of insanity which is sufficient.
There are, undoubtedly, persons of
great general ability, filling important
stations in life, who, upon some one
subject, are insane. And there are
others whose minds are such that the
conclusions of their reasons and the
results of their judgments are very far
from right. And others whose pas-
sions are so strong, or whose con-
science, reason, and judgment are so
weak, so perverted, that they may, in
some sense, be denominated insane.
But it is not the business of the law to
inquire into these peculiarities, but
solely whether the person accused was
capable of having, and did have, a
criminal intent. If he had, it pun-
isiies him ; if not, it holds him dispun-
ishable. And it supplies a test, by
which the jury is to ascertain whether
the accused be so far insane as to be
irresponsible. That test is the capacity
to distinguish between right and wrong
as to the particular act with which he
is charged. If he understands the
nature of the act, if he knows that it is
criminal, and that if he does it he
deserves punishment, then he is not
so far insane as to be exempt from re-
sponsibility. But, if he is under such
delusion as not to understand the
nature of the act, and has not reason
and judgment to know that he is de-
serving of punishment, then he is not
responsible. This is the test which

INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. [§ 205.

trated, there being no presumption of its existence from the ante-
cedent fits from which he has recovered.^

the law prescribes, and which you are
to apply in the present case.

It is asserted by the prisoner that
when he struck the blow he was suffer-
ing under a disease known as delirium,
tremens. He has introduced evidence
tending to prove his intemperate drink-
ing of ardent spirits during several
days before the time in question, and
also certain effects of this intemperance.
Physicians of great eminence, and par-
ticularly experienced in the observation
of this disease, have been examined on
both sides. They were not allowed
to give their opinions upon the case ;
because the case, in point of fact, on
which any one might give his opinion,
might not be the case which you, upon
the evidence, would find ; and there
would be no certain means of knowing
whether it was so or not. It is not the
province of an expert to draw infer-
ences of fact from evidence, but simply
to declare his opinion upon a known
or hypothetical state of facts ; and
therefore the counsel on each side have
put to the physicians such states of
facts as they deem warranted by the
evidence, and have taken their opin-
ions thereon. If you consider that any
of these states of fact put to the phy-
sicians are proved, then the opinions
thereon are admissible evidence, other-
wise they are not applicable to this
case. And here I may remark, that
although in general witnesses are held
to state only facts, and are not allowed
to give their opinions in a court of law,
yet this rule does not exclude the
opinions of those whose professions,
and studies or occupations, have ren-
dered them peculiarly skilful concern-

ing particular questions. We take the
opinion of physicians in this case for
the same reason that we resort to them
in our own cases out of court, because
they are believed to be better able to
form a correct opinion upon a subject
within the scope of their studies than
men in general. But these opinions,
though proper for your consideration,
are, nevertheless, not binding on you
against your own judgment, but should
be weighed, and, especially where they
differ, compared by you, and such effect
allowed to them as you think right.
Besides these opinions, the physicians
have also described to you the symp-
toms of the disease delirium tremens.
They all agree that it is a disease of a
very strongly marked character, and
as little liable to be mistaken as any
known in medicine. Dr. Bell says the
symptoms are —

"1. Delirium, taking the form of
apprehensiveness on the part of the
patient. He is fearful of something ;
imagines demons and snakes around
him. In attempting to escape, he will
attack others as well as injure himself.
But he is more apprehensive of receiv-
ing injury than desirous of inflicting
it, except to escape. He is generally
timid and irresolute, and easily pacified
and controlled.

"2. Sleeplessness. I believe delirium
tremens cannot exist without this.

" 3. Tremulousness, especially of the
hands, but showing itself in the limbs
and the tongue.

"4. After a time sleep occurs, and
reason thus returns ; usually the sleep
comes on in not less than three days,
dating from the last sleep. At first it

• State V. Sewell, 3 .Jones L. (N. C.) 250.
ig from prior insanity, see § 246.

As to general presumption aris-

197

§,206.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

§ 206. To an indictment in Delaware, for larceny, the defence
was that the prisoner was so drunk as to render him irresponsi-

is broken ; then tliis is followed by a
profound sleep, lasting six or eight
hours, from which the patient awakes
sane."

Dr. Steadman, after describinc.' its
symptoms substantially as Dr. Bell
did, says its access may be very sud-
den, and he has often known it first to
manifest itself by the patients attack-
ing those about them, regarding them
as enemies ; that a case may terminate
in two days, and rarely lasts more
than four days.

Regarding these accornts of the
symptoms of this disease, you will in-
quire whether the evidence proves that
they existed in this case ; and whether
the previous habits and the intemper-
ate use of ardent spirits, from which
this disease springs, are shown; and
whether the recovery of the prisoner
corresponded with the course and ter-
mination of the disease of delirium tre-
mens as described by the physicians.

It is not denied, on the part of the
government, that the prisoner had
drank intemperately of ardent spirits
during some days before the occurrence.
But it is insisted that he had continued
to drink down to a short time before
the homicide ; and that when he struck
the blow it was in a fit of drunken
madness. And this renders it neces-
sary to instruct you concerning the law
upon the state of facts which the pros-
ecutor asserts existed.

Although delirium tremens is the result
of intemperance, and therefore in some
sense is voluntarily brought on, yet it
is distinguishable, and by the law is
distinguished, from that madness which
sometimes accompanies drunkenness.

If a person suffering under delirium
tremens is so far insane as to render him

198

irresponsible, the law does not punish
him for any crime he may commit.

But, if a person commits a crime
while intoxicated, under the immediate
influence of liquor, the law does punish
him, however mad he may have been.
It is no excuse, but rather an aggra-
vation of his offence, that he first de-
prived himself of reason before he did
the act. There would be no security
for life or property if men could com-
mit crimes with impunity, provided
they would first make themselves
drunk enough to cease to be reasonable
beings. And, therefore, it is a very
important inquiry in this case whether
this homicide was committed while the
prisoner was suflTering under that
marked disease of delirium tremens, or
in a fit of drunken madness. If the
prisoner while sane made himself in-
toxicated, and while intoxicated com-
mitted a murder by reason of insanity
which was one of the consequences of
that intoxication, then he is responsi-
ble in point of law, and must be pun-
ished. This is as clearly the law of
the land as the other rule, which ex-
empts from punishment acts done
under delirium tremens. It may some-
times be difficult to determine under
which rule the accused comes. But it
is the duty of the jui-y to ascertain
from the evidence on which side this
case falls, and to decide accordingly.

It may be material for you to know
on which party is the burden of proof
in this part of the case. It is incum-
bent on the prisoner to satisfy you that
he was insane when he struck the
blow, for the law presumes every man
to be sane till the contrary is proved.
But, if the contrary has been proved,
the law does not presume that the in-

INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. [§ 206.

ble. Judge Wotten charged the jury that drunken- Delirium
ness was no excuse or palliation for a crime, but drunken- from frenzy
ness long continued produces the disease of mania-d- °^ drink.
potu, which deprives the party of reason, and incapacitates him
from distinguishing between right and wrong. In this stage it
becomes a kind of insanity. The jury would have to distinguish
between the mere frenzy of drunkenness, and the fixed insanity
produced by continued dissipation. If the prisoner was in the

sanity of the prisoner arose from any
particular canse ; and it is incumbent
on the party which asserts that it did
arise from a particular cause, and that
the prisoner is guilty by law because
it arose from that cause, to make out
this necessary element in the charge to
the same extent as every other element
in it. For the charge then assumes this
form — that the prisoner committed a
murder, for which, though insane, he
is responsible, because his insanity was
produced by and accompanied a state
of intoxication. The government must
satisfy you of these facts, which are
necessary to the guilt of the prisoner
in point of law. If you are convinced
that the prisoner was insane to such
an extent as to render him irresponsi-
ble, you will acquit him, unless you
are also convinced that his insanity
was produced by intoxication, and ac-
companied that state ; in which case
you will find him guilty.

The prisoner was acquitted.

A note in the American Journal of In-
saniti/ for July, 1856, says : —

"This distinction, between delirium
tremens and temporary madness induced
by intoxication, is laid down in The
United States v. Drew, 5 Mason, 28 ;
and (in England) in William Rennie's
case, 1 Lewin, C. C. 76. In the latter
case, Holroyd, J., said : ' Drunkenness
is not insanity, nor does it answer to
what is termed an unsound mind, un-

less the derangement which it causes becomes
fixed and continued by the drunkenness
being habitual, and thereby rendering the
party incapable of distinguishing between
right and wrong. ^ That mere drunken-
ness is no excuse for crime is very
clearly settled by many decisions both
in this country and in England. Corn-
well V. The State, Mart. & Y. 147, 149 ;
Bennet v. The State, ib. 133 ; The State
V. Turner, 1 Wright's Ohio, 20; The
State V. Thompson, ib. 617 ; Schaller
V. The State, 14 Missouri, 502 ; The
State V. John, 8 Ired. 330 ; Pirtle v.
The State, 9 Humph. 663 ; Kelley v.
The State, 3 Smedes & M. 518; The
United States v. Clarke, 2 Cranch, C.
C. R. 158. But, though drunkenness
is not of itself a complete defence to
crime, as insanity is, yet it may be ad-
missible to the jury as evidence of the
intent, in certain cases, with which the
act was done. Thus, in Pigman v.
The State, 14 Ohio, 555, it was held,
on an indictment for jjassing counter-
feit money knowing it to be counterfeit,
that the drunkenness of the prisoner
at the time of passing was proper for
the consideration of the jury in de-
termining whether he knew the bill to
be counterfeit. See, also. The State v.
McCants, 1 Spears, 384 ; Pennsylvania
V. M'Fall, Addison, 255 ; Swan i\ The
State, 4 Humph. 136 ; Pirtle v. The
State, 9 ib. 663 ; Haile v. The State, 11
ib. 154,"

199

§ 207.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

latter condition he could not be held responsible, otherwise he
ought to be convicted.^

2. Insanity immediately produced hy intoxication does not destroy
responsibility ivhere the patient, when sane and responsible, made
himself voluntarily intoxicated.

§ 207. Drunkenness, so long as it does not prostrate the facul-
ties, cannot be distinguished from any other kind of pas-
drunken- sion. If the man who is maddened by an unprovoked
not avoid attack upon his person, his reputation, or his honor, be
biiitv°"' nevertheless criminally responsible — if hot blood form no
defence to the fact of guilt — it would be a most extraor-
dinary anomaly if drunkenness voluntarily assumed should have that
effect, independently of all extraneous provocation whatever. If, as
is pretended — or else there is no ground for the exception — drunken-
ness so incapacitates the reason as to make it at least partially
incapable of distinguishing between right and wrong, or else so
inflames the passions as to make restraint insupportable, then comes
in the familiar principle that the man who voluntarily assumes an
attitude or does an act which is likely to produce death in others,
is responsible for the consequences, even though he had at the time
no specific intentions to take the life of any one. Thus, if a man
breaking an unruly horse wilfully ride him among a crowd of per-
sons, the probable danger being great and apparent, or if a work-
man out of sport or mischief slide a plank from the top of a roof
into a crowded street, or if a manufacturer deliberately and know-
ingly leave in the cellar of an uninhabited house a keg of powder,
and death ensue, it is murder at common law.^ And so it must
also be held that the steamboat captain who deliberately dashes his
boat into a crowd of smaller craft, so that life is taken, is in like
manner responsible. There can be no question as to this. The
man who voluntarily arms himself with weapons of destruction, and
then throws them hap-hazard among the innocent or unoffending,
without even the excuse of specific malice or provocation, is at least
as dangerous as the assassin who picks out his victim in advance.
Against the last there may be some checks ; against the first, none.

• State V. McGonigal, 5 Harr. 510. 2 See Wb. Cr. L. 8th ed. §§ 343 et

seq.

200

INTOXICATION AS A DEFENCE TO CHARGE OE CRIME. [§ 209.

Caution may ward off the one. or innocence escape it ; but to the
other the most innocent and kindliest would be as likely to fall
victims as the most malevolent.

§ 208. The safety of the community, in fact, requires that this
rule should be observed. Every murderer would drink
to shelter his intended guilt. There never could be a necessarj^
conviction for homicide if drunkenness avoid responsi- to public

^ satety.

bility.^ As it is, some of the most premeditated homi-
cides are committed under the stimulus of liquor. The guilty pur-
pose is at first sedately conceived, but there are few men whose
temperaments are so firmly knit as to enable them to enter a scene
of blood without first fortifying themselves for the task to be per-
formed. The head dreads the heart's cowardice, and seeks to insure
against it by drink. And, if the assassin does not take liquor to
strengthen his nerves, he will take it to avoid conviction. There
would be no species of deliberate homicide, under such a dispensa-
tion, that would not avoid punishment. It would be the undelibe-
rate only that would be made responsible.

§ 209. The tenor of authority to this effect is clear. Even the

German text writers, some of whom attenuate to so thin „ ^ . ,
' Sustained

a texture the doctrine of moral responsibility, do not ty all
undertake to treat drunkenness as a defence. Sir E.
Coke does not go beyond the tenor of Roman as well as of English
writers when he says, "As for a drunkard who is voluntarius
dcemon, he hath, as has been said, no privilege thereby, but, what
hurt or ill soever he doth, his drunkenness doth aggravate it.
Omne crimen ebrietas et ineendit et detegit.^^^ And, although
drunkenness cannot now be said to aggravate a crime in a judicial
sense, yet it is well settled that it forms no defence to the fact of
guilt. Thus Judge Story, in a case already cited, after noticing
that insanity, as a general rule, produces irresponsibility, went on
to say : "An exception is, when the crime is committed by a party
Avhile in a fit of intoxication, the law allowing not a man to avail
himself of the excuse of his own gross vice and misconduct, to
shelter himself from the legal consequences of such crime." Lord
Hale says : " The third sort of madness is that which is dementia
affectata, namely drunkenness. This vice doth deprive a man of

See supra, § 92. 2 Co. Litt. 247, a.

201

§ 210.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

his reason, and puts many men into a perfect or temporary frenzy ;
but by the laws of England, such a person shall have no privileges
by his voluntarily contracted madness, but shall have the same
judgment as if he were in his right senses."^ And so Parke, B., a
very authoritative English crown judge, said to a jury in 1837 :
" I must also tell you that, if a man makes himself voluntarily
drunk, it is no excuse for any crime he may commit whilst he is so ;
he takes the consequences of his own voluntary act, or most crimes
would go unpunished. "2 And Alderson, B., said in 1836 : " If a
man chooses to get drunk, it is his own voluntary act; it is very
different from madness which is not caused by any act of the person.
That voluntary species of madness which it is in a party's power
to abstain from, he must answer for."^ In harmony with this is
the whole current of English authority.'*

§ 210. The law in this country is that voluntary drunkenness,
^ , not amountins; to permanent insanity, is no defence to

Drunken- . .

ness admis- the factum of guilt ; the only point about Avhich there
prove spe- " has been any doubt being the extent to which evidence
cific intent. ^^ drunkenness is receivable to determine the exactness
of the intent or the extent of deliberation. And on this point the
prevalent opinion is that evidence of drunkenness at the time of
the offence is admissible to disprove specific intent or deliberation.'

» 1 Hale, 7 ; 4 Black. Com. 26 ;
Wharton's C. L. {in loco) ; 1 Gabbett,
C. L. 9.

2 R. V. Thomas, 7 C. & P. 817.

3 R. V. Meakin, 7 C. & P. 297.

* Burrow's case, 1 Lewin C. C. 75 ;
Rennie's case, 1 Lewin C. C. 76 ; 1
Russel on Cr. 8 ; Wh. Cr. L. 8th ed.
§ 50. In a very recent English case it
was held that though drunkenness is
no excuse, delirium caused by drink-
ing and differing from drunkenness, if
it produces such a degree of madness,
even for a time, as to render a person
Incapable of distinguishing right from
wrong, relieves him from criminal re-
sponsibility. R. V. Davis, 14 Cox C. C.
563. See a note to this case as reported
in 28 Moak's English Reports, 657, for

202

a full statement and classification of all
the American cases.

5 In Rogers's case, which came up in
1858, before the New York court of
appeals, the law was thus stated by
Denio, J. : " Where a principle of law
is found to be well established by a
series of authentic precedents, and espe-
cially where, as in this case, there is
no conflict of authority, it is unneces-
sary for the judges to vindicate its
wisdom or policy. It will, moreover,
occur to every mind that the principle
mentioned is absolutely essential to
the protection of life and property. In
the forum of conscience there is no
doubt considerable difference between
murder deliberately planned and exe-
cuted by a person of unclouded Intel-

INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. [§ 211.

§ 211. A humane qualification of the old law was in 1870 recog-
nized by the supreme court of Michigan, in an opinion of much

lect, and the reckless taking of life by
one infuriated by intoxication : but
human la^vs are based upon considera-
tions of policy, and look rather to the
maintenance of personal security and
social order, than to accurate discrimi-
nation as to the moral qualities of in-
dividual conduct. But there is in
truth no injustice in holding a person
responsible for his acts committed in a
state of voluntary intoxication. It is
a duty which every one owes to his
fellow-men, to say nothing of more
solemn obligations, to preserve, so far
as it is in his power, the inestimable
gift of reason. If it be perverted or
destroyed by fixed disease, though
brought on by his own vices, the law
holds him not accountable. But, if by
a voluntary act he temporarily casts off
the restraints of reason and conscience,
no wrong is done him if he is consid-
ered answerable for any injury which
in that state he may do to others, or to
society.

"Before proceeding to examine the
judge's charge, it is necessary to state
one other principle connected with the
subject of intoxication. I am of opin-
ion that, in cases of homicide, the fact
that the accused was under the influ-
ence of intoxication may be given in
evidence in his behalf. The effect
which the evidence ought to have upon
the verdict will depend upon the other
circumstances of the case. Thus, in
Eex V. Carroll, which was a case of
murder by stabbing, there was not, as
the court considered, any provocation
on the part of the deceased, and it was
held that the circumstance that the
prisoner was intoxicated was not at all
material to be considered. Rex v.
Meakin was an indictment for stab-
bing with a fork with intent to murder ;

and it was shown that the prisoner
was the worse for liquor. Alderson,
Baron, instructed the jury that, with
regard to the intention, drunkenness
might be adverted to according to the
nature of the instrument used. 'If,'
he said, ' he uses a stick, you could
not infer a malicious Intent so strongly
against him if drunk, if he made an
intemperate use of it, as you would if
he had used a different kind of a wea-
pon ; but, where a dangerous instru-
ment is used, which, if used, must
prodiice a grievous bodily harm, drunk-
enness can have no effect upon the '
consideration of the malicious intent
of the party.' In Rex v. Thomas, for
malicious stabbing, the person stabbed
had struck the prisoner twice with his
fist, when the latter, being drunk,
stabbed him, and the jury were charged
that drunkenness might be taken into
consideration where what the law
deems sufficient provocation has been
given, because the question in such
cases is, whether the fatal act is to be
attributed to the passion of anger ex-
cited by the previous provocation ; and
that passion, it was said, is more easily
excitable in a person when in a state
of intoxication than when he is sober ;
so, it was added, where the question is,
whether words have been uttered with
a deliberate purpose, or are merely
low and idle expressions, the drunken-
ness of the person uttering them is
proper to be considered. But, if there
is really a previous determination to
resent a slight affront in a barbarous
manner, the state of drunkenness in
which the prisoner was ought not to
be regarded, for it would furnish no
excuse.

" It most generally happens, in homi-
cides committed by drunken men, that

203

§ 211.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

force. If a person (so it has been there held) is subject to a heredi-
tary or other type of insanity liable to be excited by slight amounts

the condition of the prisoner would
explain or give character to some of his
language, or some part of his conduct,
and, therefore, I am of opinion that it
would never be correct to exclude the
proof altogether. That it would some-
times be right to advise the jury that
it ought to have no influence upon the
case, is, I think, clear from the fore-
going authorities. In a case of length-
ened premeditation, of lying in wait,
or where the death was by poisoning,
or in the case of wanton killing without
any provocation, such an instruction
would plainly be proper.

"Assuming the foregoing positions
to be established, I proceed to examine
the exception to the charge of the
judge. It is difficult to know precisely
what was meant by the request to
charge ; but I think its sense may be
expressed thus : that drunkenness
might exist to such a degree, that nei-
ther an intention to commit murder,
nor a motive for such an act, could be
imputed to the prisoner. It was there-
fore asked that it should be left to the
jury to determine whether such a de-
gree of intoxication had been shown ;
and that they should be instructed
that if it had, the prisoner should be
found guilty of manslaughter only.
We must lay out of view as inapplica-
ble, the case of a person who had be-
come insensible from intoxication, and
who was performing an act unaccom-
panied by volition. There was nothing
in the evidence to show that the pri-
soner's conduct was not entirely under
the control of his will, or which would
render it possible for the jury to find
that he did not intend to stab the de-
ceased with his knife. The mind and
will were no doubt more or less per-
verted by intoxication, but there was

204

no evidence tending to show that they
were annihilated or suspended. As-
suming, therefore, that the request did
not refer to such a hypothesis, the only
other possible meaning is that it sup-
poses the jury legally might find that
the prisoner was so much intoxicated
that he could not be guilty of murder
for the want of the requisite intention
and motive, and the request was that
they might be so instructed. This
would be precisely the same thing as
advising them that they might acquit of
murder on account of the prisoner's
intoxication, if they thought it sufli-
cient in degree. It has been shown that
this would be opposed to a well-estab-
lished principle of law. The judge
was not at liberty so to charge, and
the exception to his refusal cannot be
sustained. What he did charge on the
subject of intoxication was more favor-
able to the prisoner than he had a
right to claim. It implies that if he
was so far intoxicated as to be deprived
of his reasoning faculties, it was an
excuse for the crime of murder, or, as
perhaps it was intended to state, that
he could not be guilty of murder. The
rule which I have endeavored to ex-
plain assumes that one may be con-
victed of murder, or of other crime,
though his mind be reduced by drunk-
enness to a condition which would
have called for an acquittal if the ob-
liquity of mind had arisen from any
other cause. The judge ought to have
charged, that, if a man makes himself
voluntarily drunk, that is no excuse
for any crime he may commit while he
is so, and tliat he must take the con-
sequence of his own voluntary act.
(Rex V. Thomas, supra.) The charge,
therefore, gave the prisoner the chance
of an acquittal to which he was not

INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. [§ 212.

of alcoholic drinks — if, in consequence of indulging in such drinks,
his mental faculties become excited to diseased action to such extent
that he loses self-control, if he was ignorant of this effect when so in-
dulging— then he will be regarded as rather insane than intoxicated,
and subject to the immunities of insanity.^ This is undoubtedly in
accordance with those analogies which gauge insane delusions by
the intellectual abilities of patient and not of critic, and which de-
clare that we are to measure a man's fears and passions by his
character and temperament, and not by our own,^ Dr. Krafft-
Ebing, in an essay published in 1871, has vindicated this position
psychologically with great power as well as delicacy of discrimina-
tion. He establishes by copious proof the fact that there are some
temperaments which slight quantities of spirituous liquor make in-
sane, and he argues that such persons, if drinking ignorantly, or
entrapped into drink, should be covered, pro tanto, with the immu-
nities of insanity.

But, to constitute such mitigation of guilt, drunkenness must be
involuntary in the sense above stated. A contrary doctrine was
indeed intimated by Judge Robertson, of Kentucky, in an eccentric
opinion already adverted to ;^ but to view voluntary and inten-
tional drunkenness as an excuse is without authority either legal
or psychological.*

§ 212. The connection between drunkenness and insanity is thus
stated by Griesinger : " That intoxication, when carried to a cer-
tain degree, as a dreamy condition with numerous hallucinations
and illusions, really resembles insanity, is easily understood. Some-
times we see individuals who, after partaking of a relatively small
quantity of spirits, and without being in a state of deep intoxica-
tion, but retaining fully their consciousness, present a great ten-
entitled ; but this was not an error 463. When drunkenness is voluntary,
of which he could take advantage." this position is without warrant. For
People V. Rogers, 18 N. Y. 9. See also review see 23 Am, Journ. of Insan. 1.
Friery v. People, 54 Barb. 319 ; 2 • Roberts v. People, 19 Mich. 401.
Keyes, 424. 2 gee §§ 34-60, 200. See essay by

In Smith v. Com., 1 Duvall, 224, Dr. George Cook, 18 Am. Journ. of Ins.
Judge Robertson startled the commu- 321. See also 19 ibid. 448.
nity, by stating that drunkenness may ^ Smith v. Com., 1 Duv. 224.
be an excuse for crime as a " transient * See an able review in 23 Am. Journ.
insanity." This, however, is repu- of Ins. 1 ; and see SM/^ra, § 200.
diated in Shannahan v. Com., 8 Bush,

205

§ 213.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

dency to commit very extravagant, noisy, and foolish acts ; a cir-
cumstance which may be truly considered as a symptom of predis-
position to mental disease.

" Moreover, there occur in drunkards sudden convulsive states
which resemble epileptic attacks, and which are sometimes followed
by a condition of forgetfulness and tranquil delirium, at other times
by outbreaks of furious delirium, which has been termed the con-
vulsive form of intoxication.

" The habitual drunkard, in whom the habit is already far ad-
vanced, presents also, even when he is not in a state of intoxication,
many signs which indicate the existence of an advancing chronic
disease of the brain, and which make him closely resemble the
mentally diseased. Indeed this condition may gradually pass into
insanity, and particularly into dementia ; and there are constantly
found in the brains of habitual drunkards, as in many of the insane,
the results of passive congestion — chronic opacities and thickenings
of the cerebral membranes. The appetite acquired by habit is so
powerful in the drunkard, the ideas which might oppose it are so
weak, and the will has become so paralyzed, that he, even though
he is aware that he renders himself despised and contemptible,
undermines his constitution, disturbs his domestic happiness, ruins
his business, and every day postpones the good resolution which he
perhaps has made.

" The craving, the dizziness, the dulness of the senses, the mus-
cular feebleness, the stomach complaints from which he suffers, are,
each time he partakes, alleviated for the moment, and it may, per-
haps, be partly owing to the fact that these disorders require each
day to be remedied that drunkenness is often so inveterate."

§ 213. " Of all the various forms of chronic insanity, drunken-
ness especially appears to possess much in common with general
paralysis. Besides, incompletely developed forms, which in a
medico-legal point of view are often very difficult to judge of, are
very common.

" These slight chronic mental anomalies observed in the drunkard
are manifested by very apparent mental dulness, loss of the sense
of duty, and in general of all the higher sentiments : conscience
and the sense of truth are blunted, the intellect is generally en-
feebled, especially the memory, frequently slight or well-marked
hallucinations also exist. Numerous other anomalies of the nervous
20t>

INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. [§ 214.

system also present themselves ; tremors of the hands and of the
tongue, deadening of the sense of sight and of touch, debility of
the genital organs ; the patient has formications and cramps in his
limbs, giddiness, sometimes epileptic attacks of greater or less
severity ; sooner or later marasmus and dropsy may set in, with
the usual local affections (gastric disease, emphysema, cirrhosis of
the liver, Bright's disease, etc.). The children of drunkards very
frequently die early from convulsions ; many of them are idiots,
imbeciles, or microcephalic ; or in later life they present the same
disposition to drunkenness, insanity, and crime. "^

3. While intoxication per se is no defence to the fact of guilt, yet,
when the question of intent or premeditation is concerned, it may
he proved for the purpose of determining the precise degree.

§ 214. This position should be very jealously guarded, since,
as has already been remarked, there are few cases of

,., .., . ,., , Tp 1 Degree may

premeditated violent homicide, in which the deiendant te'deter-

does not previously nerve himself for the encounter by f^c^^^f ^

liquor, and there would in future be none at all, if the drunken-

. . . . ness.

fact of being in liquor at the time is enough to disprove

the existence of premeditation. The true view, therefore, would
seem to be, not that the fact of liquor having been taken is of any
value at all on the question of intent or premeditation, but that
when there is no evidence of premeditation aliunde, and where the
defendant is proved at the time of the occurrence to be in a state of
mental confusion of which drink was the cause, the fact of such
mental confusion may be received to show either that there was no
specific intent to take life, or that there was no positive premedita-
tion.2 In the cases arising out of the statutes resolving murder
into two degrees, in which the distinguishing test is a specific
intent to take life, this position receives several pregnant illustra-
tions. Thus, in the Philadelphia riot cases of 1814, where it was
shown that bodies of men were inflamed by sectarian and local pre-
judices, and blinded by a wild apprehension of danger to such an
extent as to make them incapable of discrimination, or of precise or
specific purpose, it was held that they could not be considered as

> Griesinger's Mental Path., Syden. ^ gpe cases detailed in Wh. Cr. L.

ed. (1867) § 100. 8th ed. § 51.

207

§ 214 ] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

guilty of that species of "wilful and deliberate" murder which
constitutes murder in the first degree/ Precisely analogous to
this is the case of the drunkard, who in a fight slays an antagonist
■without any sober reflection. In his intoxication he is incapable
of such mental action as the term " premeditate" describes. His
mental condition may be such as to deprive him of the capacity to
form a " specific intent" either to take life, or to do anything else.
And yet at the same time, at common law, the offence would,
strictly speaking, fall under the head of murder, for it would pos-
sess the incident of malice, and would be without due provocation.
Under such circumstances the offence properly is to be ranked as
murder in the second degree, and so has it repeatedly been decided
by the courts.^

• Wharton on Homicide, 371, 2.

2 Wh. Cr. L. 8th ed. §§ 52, 381 et
seq., and cases there cited. Com. v.
Jones, 1 Leigh, 612 ; Boswell v. Com.,
20 Gratt. 860 ; Com. v. Hart, 2 Brewst.
546 ; Com. v. Haggerty, Lewis, Cr. L.
402; Pirtle v. State, 9 Humph. 663;
Swan V. State, 4 Humph. 131 ; Penna. v.
M'Fall, Add. 257 ; People v. Hammell,
2 Parker, C. C. (N. Y.) 223 ; People v.
Robinson, ibid. 235. In a case in Ten-
nessee, the court thus speak : " Upon
the trial, there was evidence that the
prisoner was intoxicated at the time
he committed the homicide. Upon the
siibject of the defendant's intoxication
he told the jury that 'voluntary in-
toxication is no excuse for the commis-
sion of crime ; on the contrary it is
.considered by our law as rather an ag-
gravation ; yet, if the defendant was so
deeply intoxicated by spirituous liquors
at the time of the killing as to be in-
capable of forming in his mind a design
deliberately and premeditately to do
the act, the killing under such a state
of intoxication would only be murder
in the second degree.' It is insisted
that his honor did not state the prin-
ciple upon this subject, as it has been
ruled by this court. In the case of

208

Swan V. The State, Judge Reese, who
delivered the opinion of the court,
says: 'But, although drunkenness in
point of law constitutes no excuse or
justification for crime, still, when the
nature and essence of a crime are made
to depend by law upon the peculiar
state and condition of the criminal's
mind at the time, and with reference
to the act done, drunkenness, as a mat-
ter of fact, affecting such state and
condition of the mind, is a proper sub-
ject for consideration and inquiry by
the jury. The question in such case
is, what is the mental status ? Is it
one of self-possession, favorable to a
fixed purpose, by deliberation and pre-
meditation ; or did the act spring from
existing passion, excited by inadequate
provocation, acting, it may be, on a
peculiar temperament, or upon one
already excited by ardent spirits ? In
such a case it matters not that the
provocation was inadequate, or the
spirits voluntarily drank ; the question
is, did the act proceed from sudden
passion, or from deliberation or pre-
meditation ? What was the mental
status at the time of the act, and with
reference to the act ? To regard the
fact of intoxication as meriting con-

INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. [§ 215.

§ 215. The same general view is taken as to the question of
intent in other cases. Thus it is now the settled rule in Enorland

sideration in siich a case, it is not to
hold that drunkenness will excuse
crime, but to inquire whether the very
crime which the law defines and pun-
ishes has been in point of fact com-
mitted. In these remarks the court
intend to be understood as distinctly
indicating, that a degree of drunken-
ness by which the party was greatly
excited, and which produced a state of
mind unfavorable to deliberation and
premeditation, although not so exces-
sive as to render the party absolutely
incapable of forming a deliberate pur-
pose, might be taken into considera-
tion by a jury, in determining whether
the killing was done with premedita-
tion and deliberation.' The whole sub-
ject was ably reviewed by Judge Tur-
ley, in the case of Pirtle v. The State.
In delivering the opinion of the court
in that case, the judge says, at page
671 : ' It will frequently happen neces-
sarily, when the killing is of such a
character as the common law desig-
nates as murder, and it has not been
perpetrated by means of poison, or by
lying in wait, that it will be a vexed
question, whether the killing has been
the result of sudden passion produced
by a cause inadequate to mitigate it to
manslaughter, but still sufficient to
mitigate it to murder in the second de-
gree, if it be really the true cause of
the excitement, or whether it has been
the result of premeditation and deli-
beration ; and in all such cases, what-
ever view is able to cast light upon the
mental status of the offenders is legiti-
mate proof; and among others, the fact
that he was at the time drunk ; not that
tHis will excuse and mitigate the of-
fence, if it were done wilfully, deliber-
ately, maliciously, and premeditately
(which it might well be, though the
VOL. I. — 14

perpetrator was drunk at the time) ;
but to show that the killing did not
spring from a premeditated purpose,
but sudden passion, excited by inade-
quate provocation, such as might rea-
sonably be expected to arouse sudden
passion and heat, to the point of taking
life, without premeditation and deli-
beration.' Here the court explicitly
lays down the rule to be, that in all
cases where the question is between
murder in the first and murder in the
second degree, the fact of drunkenness
may be proved, to shed light upon the
mental status of the oflfender, and there-
by to enable the jury to determine
whether the killing sprung from pre-
meditated purpose, or from passion ex-
cited by inadequate provocation. And
the degree of drunkenness which may
then shed light upon the mental state
of the offender, is not alone that exces-
siv.e state of intoxication, which de-
prives a party of the capacity to frame
in his mind a design deliberately and
premeditately to do an act ; for the
court says that, in the state of drunk-
enness referred to, a party well may be
guilty of killing wilfully, deliberately,
maliciously, and premeditately ; and,
if he so kill, he is guilty as though he
were sober. The principle laid down
by the court is, that, when the question
is, can drunkenness be taken into con-
sideration in determining whether the
party be guilty of murder in the second
degree, the answer must be, that it
cannot ; but, when the question is,
what was the actual mental state of
the perpetrator, at the time the act
was done, was it one of deliberation
and perpetration, then it is competent
to show any degree of intoxication that
may exist, in order that the jury may
judge, in view of such intoxication,

209

§ 215.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS,

Same view that, though drunkenness is no excuse for crime, it may be

taken in , . , i i • • -, ■ ^

England as taken into account by the jury when considering the
Infmt.^ motive or intent of a person acting under its influence.^
So, also, in an Ohio case, it was very properly held that,
when the charge was knowingly passing counterfeit money with
intent to cheat, the drunkenness of the defendant at the time of the

in connection with all the other facts
and circumstances, whether the act
was premeditately and deliberately
done. The law often implies malice
from the manner in which the killing
was done, or the weapon with which
the blow was stricken. In such case
it is murder, though the perpetrator
were drunk. And no degree of drunk-
enness will excuse in such case, unless
by means of drunkenness an habitual
or fixed madness be caused. The law
in such cases does not seek to ascertain
the actual state of the perpetrator's
mind, for, tlie fact from which it is
implied having been proved, the law
presumes its existence, and proof in
opposition to this presumption is irre-
levant and inadmissible. Hence a
party cannot show he was so drunk as
not to be capable of entertaining a
malicious feeling. The conclusion of
law is against him. But, when the
question is, whether a party is guilty
of murder in the first degree, it be-
comes indispensable that the jury
should form an opinion as to the ac-
tual state of mind with which this act
was done. All murder in the first de-
gree (except that committed by poison,
and by lying in wait) must be per-
petrated wilfully, deliberately, mali-
ciously, and premeditately. The jury
must ascertain, as a matter of fact,
that the accused was in this state of
mind when the act was done. Now,
according to the cases of Swan v. The
State, and Pirtle v. The State, any fact
that will shed light upon this subject
may be looked to by them, and may

210

constitute legitimate proof for their
consideration. And among other facts,
any state of drunkenness being proved,
it is a legitimate subject of inquiry, as
to what influence such intoxication
might have had upon the mind of the
offender, in the perpetration of the
deed. We know that an intoxicated
man will often, upon a slight provoca-
tion, have his passions excited and
rashly perpetrate a criminal act. Now,
it is unphilosophical for us to assume
that such a man would, in the given
case, be chargeable with the same de-
gree of premeditation and deliberation
that we would ascribe to a sober man,
perpetrating the same act upon a like
provocation. It is in this view of the
question, that this court held, in
Swan's case and in Pirtle's case, that
the drunkenness of a party might be
looked to by the jury, with the other
facts in the case, to enable them to de-
cide whether the killing was done de-
liberately and premeditately. But his
honor, the circuit judge, told the jury,
that drunkenness was an aggravation
of the offence, unless the defendant
was so deeply intoxicated as to be in-
capable of forming in his mind a design
deliberately and premeditately to do
the act. In this charge there is error,
for which the judgment must be re-
versed. Reverse the judgment, and
remand the cause for another trial."
Haile v. State, 11 Humph. 154.

1 R. V. Gamlen, 1 F. & F. 90 ; R. v.
Monkhouse, 4 Cox C. C. 55 ; R. v.
Stopford, 11 Cox C. C. 643.

INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. [§ 216.

offence was a fit subject for the consideration of the jury, there being
no ground to suppose that the defendant knew the money to be coun-
terfeit before he was drunk. ^ And when in England the defendant
was indicted for an attempt to commit suicide by drowning, and it
was alleged that she was at the time unconscious of the nature of
her act from drunkenness, Jervis, C. J., said to the jury: " If the
prisoner was so drunk as not to know what she was about, how can
you find that she intended to destroy herself ?"2

§ 216. Beyond this the advance has been fluctuating. The
furthest step taken was in an English case, decided in unsettled
1819,3 where Holroyd, J. , is reported by Sir W. Russell, opinion

. . . , , . , , where pro-

who adopts his opinion as text law, to have said that the vocation
fact of drunkenness might be taken into consideration to
determine the question whether an act was premeditated or done
only with sudden heat and impulse. This would make drunkenness
an item in every question of provocation or hot blood, and would
of course open the way to the same difficulties as to general policy,
which we have already pointed out in another connection. In
1835, however, this case was expressly repudiated by Parks, J.,
who said, in referring to Holroyd, J.'s, language, as just given,
" Highly as I respect that late excellent judge, I differ from him,
and my brother Littledale agrees with me. He once acted upon
that case, but afterwards retracted his opinion. There is no doubt
that that case is not law. I think there would be no safety in
human life if it were to be considered as law."^ But the very next
year, Alderson, B., in a case of stabbing, retraced at least a part
of the retreat which had been thus so emphatically sounded. " It
is my duty to tell you," he said, " that the prisoner being intoxi-
cated does not alter the nature of the offence. If a man chooses to
get drunk, it is his own voluntary act ; it is very different from a
madness which is not caused by any act of the person. That
voluntary species of madness which it is in a party's power to
abstain from, he must answer for. ITotvever, witJi regard to the
intenti07i, drunkenyiess may 2}erhaps be adverted to according to the

' Pigman v. State, 14 Ohio, 555 ; ^ 'K. v. Moore, reported 6 Law Rep.
affirmed, but limited, in Nichols v. (N. S.) 581, 3 C. & K. 319.
State, 8 Ohio St. 435. See also U. S. v. 3 R. v. Grindley, 1 Russ. on Cr, 9th
Roudenbush, 1 Bald. 514. ed. 12, note 2.

< R. V. Carrol, 7 C. & P. 145.

211

§ 217.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

nature of the instrument used. If a man uses a stick, you would
not infer a malicious intent so strongly against him, if drunk,
when he made an intemperate use of it, as you would if he had
used a different kind of weapon; hut, where a dangerous instru-
ment is used, which, if used, must produce grievous bodily harm,
drunkenness can have no effect on the consideration of the mali-
cious intent of the party. ''''^ Perhaps this is doing no more than
reiterating the principle we have already announced, that, when
there is evidence of sober premeditation, intermediate drunkenness
cannot be received to affect the question of intent ; but that, when
there is no such evidence, it can. And it would not be right to
strain further than this the following charge, in 1837, by Parke, B.
(to be distinguished from Park, J., whose opinion, two years before,
has been just noticed) : " I must tell you that, if a man makes
himself voluntarily drunk, that is no excuse for any crime he may
commit while he is so ; he must take the consequence of his own
voluntary act ; or most crimes would otherwise be unpunished.
But drunkenness may be taken into consideration in cases where
what the law deems sufficient provocation has been given ; because
the question is, in such cases, whether the fatal act is to be attri-
buted to the passion of anger, excited by the previous provocation,
and that passion is more easily excitable in a person when in a state
of intoxication, than when he is sober. So, where the question is
whether words have been uttered with a deliberate purpose, or are
merely low and idle expressions, the drunkenness of the person
uttering them is proper to be considered. But, if there is really a
previous determination to resent a slight affront in a barbarous
manner, the state of drunkenness in which the prisoner was ought
not to be regarded, for it would furnish no excuse. You will
decide whether the subsequent act does not furnish the best means
of judging what the nature of the previous expression really was."*
§ 217. The American cases present the same general result,
depending in principle, if not in terms, on the position that,
Drunken- where, in prosecutions for violence, the encounter was
ness reie- sudden, and the defendant, prior to such encounter, had

vanton ' .... , . '

issue of no malice or old grudge, intoxication at the time oi the
ma ice. encounter can be taken into consideration, to ascertain

» R. V. Meakin, 7 C, & P. 297. « R. v. Thomas, 7 C. & P. 817.

212

INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. [§ 217.

whether the defendant, when under a legal provocation, acted from
malice or from sudden passion,^ and whether the act done was speci-
fically intended. But if malice or specific intent to do the criminal
act is proved aliunde, then intoxication at the time does not lower
the grade of offence.^ The same distinction is applicable, mutatis
mutandis, to prosecutions for other offences.

[§§ 218-228 are omitted in this edition for the purpose of con-
densation.]

» See Schaller v. State, 14 Mo. 502. 2 See cases in Wh. Cr. L. 8tli ed.

§ 54 et seq,

213

§ 230.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

CHAPTER VI.

INSANITY AS RELATED TO LIFE INSURANCE.

Question one of construction of policy,

§ 229.
In England, " by liis own hand or act"

covers all intentional suicide, § 230.
This view repudiated by supreme court

of U. S., § 231.
Test in New York, § 232.
Rule in Massachusetts and Maine, §

233.
Rule in other states, § 234.
Distinctive ruling in Kentucky, § 235.

Rule in England as to phrase ' ' die by
suicide," § 236.

Rulings in this country, § 237.

" In the known violation of the law of
any state" does not extend to in-
sanity, § 238.

"Sane or insane" is a good condition,
§ 239.

Right and wrong test not applicable,
§240.

Suicide not conclusive evidence of in-
sanity, § 241.

§ 229. The clauses in the insurance policies which provide that
the policies shall be void if the insured party kills him-
one of con- Self, are usually worded in one of two ways. Either the
oT'^oUcv phi'ase "shall die by his own hand or act" is used, or
the shorter phrase, " shall die by suicide."^ We shall
now consider the constructions which have been put upon these
phrases by the various courts to whose judgment they have been
submitted.

§ 230. The first of these phrases was considered by the English
In England court of common pleas in 1842.^ In 1838, the insured,
being, it was claimed at the time, of unsound mind, cast
himself from Vauxhall bridge into the Thames, and
was drowned. In an action on the policy, the jury
found that the insured " voluntarily threw himself into
the river, knowing at the time that he should thereby destroy his
life, and intending thereby to do so, but that at the time of com-

■ by his
own hand
or act"
covers all
intentional
suicide.

' For other forms see Bliss on Life
Ins. 2d ed. § 228.
2 Borradaile v. Hunter, 5 Scott, N.

214

R. 418; 5 M.
Ins. R. 280.

& G. 639; 2 Big. Life

INSANITY AS RELATED TO LIFE INSURANCE. [§ 231.

mitting the act he was not capable of judging between right and
wrong." It was held by Maule, Erskine, and Coltman, JJ., that
on this verdict judgment should be entered for the defendant. Two
of the judges laid much stress on the fact that the words " die by
his own hands," and not " suicide," were used in the exception.
" When I find," says Erskine, J., " the terms ' shall commit suicide,'
that have been popularly understood and judicially considered as
importing an act of criminal self-destruction, exchanged for words
not hitherto so construed, it may, I think, be fairly inferred that
the terms adopted were intended to embrace all cases of intentional
self-destruction, unless it can be collected from the immediate con-
text that the parties used them in a more limited sense."

§ 231. But the supreme court of the United States has not
assented to this construction. In a case brought before „, . .

=> This view

it in 1872,^ the case of Borradaile v. Hunter was re- repudiated

T T ... T p 1 T by supreme

lied on as authoritative, and the words oi the policy court of

TT Q

having been "die by his own hand," the fact that the " '
deceased took poison was argued to be conclusive in favor of the
insurance company. But Mr. Justice Hunt, in delivering the
opinion of the court (Strong, J., dissentiente) , said: ''We hold
the rule on the question before us to be this : If the assured, being in
the possession of his ordinary reasoning faculties, from anger, pride,
jealousy, or a desire to escape from the ills of life, intentionally
takes his own life, there can be no recovery. If the death is
caused by the voluntary act of the assured, he knowing and intend-
ing that his death shall be the result of his act, but when his rea-
soning powers are so far impaired that he is not able to understand
the moral character, the general nature, consequences, and effect of
the act he is about to commit, or when he is impelled thereto by an
insane impulse Avhich he has not the power to resist, such death is
not within the contemplation of the parties to the contract, and the
insurer is liable." " Nor," said he, " do we see any difference,
for this purpose, in the meaning of the expressions commit suicide,
take his own life, or, die by his own hand." This opinion Avas
approved in the case of Insurance Co. v. Rodel;^ and it was held in
the latter case that evidence tending to show that the insured was

1 Life Ins. Co. i-. Terry, 15 WalL 580. 2 95 U. S. 232.

215

§ 233.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS,

insane at the time of committing the act which caused his death
should not be taken from the jury, as it is for them to pass upon its
weight.

§ 232. The court of errors of Xew York, in 1853, affirming a
-jgg^jj^ decision of the supreme court,^ on a policy whose excep-

NewTork. -j-^Qn was in the words "by his own hands," rejected, by
a vote of five to three, the construction of the English courts, and
held that " dying by his own hands" meant felonious and criminal
suicide, and that where the self-killing was insane the policy was
not avoided. This is substantially followed by the subsequent cases
in that state, but the " right and wrong" test was distinctly repu-
diated in the next case that arose ;^ it being also maintained that
the former case of Breasted v. The Farmer's L. & T. Co. was distin-
guishable from the case of Life Ins. Co. v. Terry, as in the latter
case the question of the capacity of the deceased to appreciate the
moral character of the act was not involved ; and that Breasted' s
case was furthermore distinguishable from Borradaile v. Hunter, as
in that case the judge assumed that the act was voluntary, which
fact was not proved in Breasted's case. The conclusion was that to
take a case out of the proviso, on the ground of insanity, the assured
must have been so mentally disordered as not to understand that the
act he committed would cause his death, or he must have committed
it under the influence of some insane impulse which he could not
resist ; it would not be sufficient that his mind was so impaired that
he was not conscious of the moral obliquity of his act. The later
cases follow this conclusion.^

§ 233. In Massachusetts, in 1862, it was ruled that where the

policy was conditioned to be void in case the assured
Massachu- died by his own hand, it was avoided by self-destruction
Maine^*^ knowingly caused in a fit of insanity.-* Similar facts

appeared in a later case,^ in which the doctrine that inten-

i Breasted v. The Loan Co., 8 N. Y. evidence of insanity and to decide

299. whether it is sufficient to go to the

2 Van Zandt v. Ins. Co., 55 N. Y. jury and warrant a verdict. Fowler v.
169 ; 4 Big. Life Ins. Rep. 313. Ins. Co., 4 Lans. 202.

3 McClure v. Ins. Co. 55 N. Y. 651 ; * Dean v. Ins. Co., 4 Allen, 96.
Weed V. Ins. Co., 70 N. Y. 561 ; New- 5 Cooper v. Ins. Co., 102 Mass. 227
ton V. Ins. Co., 76 N. Y. 426. It is for (1869) ; 3 Big. Life Ins. Rep. 656.
the judge, consequently, to weigh the

216

INSANITY AS RELATED TO LIFE INSURANCE. [§ 234.

tional self-killing, though the party was at the time insane, avoided
a policy, was reaffirmed ; Chapman, C. J., saying that in this case
" there was no offer to prove the madness of delirium, or that the
act of self-destruction was not the result of the will and intention of
the party," etc. The proviso in that policy used the words " die
by suicide," and the court held that there was no difference between
the various forms in this respect, the object of all being to guard
against intentional suicide. The supreme court of Maine, also,
appears to approve of the doctrine that suicide will avoid a policy
unless it is unintentional or caused by delirium. For, in the only
case in which the subject has been treated by that court,^ though
it was held that the plaintiff in an action on a policy of insurance
could recover by showing that the party insured committed suicide
unintentionally in a fit of insanity, care was taken to say that
there was no intention of departing in this respect from the position
taken by the supreme court of Massachusetts.

§ 234. A charge which almost repeated the words of the New
York court in Van Zandt's case has been approved by j^^^^ .^
the supreme court of Minnesota;^ and in like manner other

. . states.

the court of appeals in Maryland^ affirmed a charge which
gave to the insured only the benefit of the proviso recognized by
the New York and Massachusetts cases ; and it seems to be gene-
rally thought that the great weight of authority in this country
sustains the ruling of these cases, that there can only be a recovery
if the deceased killed himself in a fit of insanity which over-
powered his reason, consciousness, and will. But the opinion of
the supreme court of the United States in Life Ins. Co. v. Terry,
which was said by the New York court of appeals to be obiter on
the question whether a consciousness that the act was wrong took the
insured out of the exception,^ has been approved, and on that very
point, by a later decision of the supreme court, as was before
noticed.^ And it has been expressly followed in Pennsylvania,^

' Eastabrook r. Ins. Co., 54 Me. 224. see Gay v. Ins. Co., 9 Blatch. 142

2 Scheffer v. Ins. Co., 25 Minn. 534. Nimick v. Ins. Co., 3 Brewst. 502 ; Co-

8 Ins. Co. V. Peters, 42 Md. 414. verston v. Ins. Co., 4 Big. L. Ins. Rep.

* Van Zandt's case, ubi supra. 169 ; following Life Ins. Co. v. Terry, is

6 Supra, § 231. For circuit court Moore v. Ins. Co., 3 Ins. L. J. 444.

cases deprived of their authority by ^ jng. Cq. y. Groom, 86 Penn. St. 92.

the decision in Lif Ins. Co. v. Terry, In this case, it is true, the policy was

217

§ 235.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

Georgia,^ and Louisiana,^ which makes a conflict of authority not
to be overlooked. It is to be noticed that some cases rest on the
ground that insanity is a disease, and that as policies of life insur-
ance are especially designed to protect and provide against dis-
ease, such policies cover the case of suicide by insanity .^ And in
one case an examination of the authorities was declined as unprofit-
able, and the decision was made solely upon the ground of disease.^
§ 235. In 1869, the words, " if he shall die by his own hands
this policy shall be void," came up for construction be-

Distinctive i ./ ? ^ r ^ _

ruling in fore the supreme court of Kentucky, in a case where it
en ucy. ^^^^ averred " that the fatal shot was the involuntary off-
spring of a momentary paroxysm of moral insanity which subjected
his will and impelled the homicide beyond the power of self-control
or successful resistance." The court was equally divided on the
question whether this state of facts avoided the policy, though the
judges seem to have concurred in the opinion that there would be
no avoidance where the suicide was in " the madness of delirium."
The case, however, is chiefly remarkable for the bold statement of

■worded "shall die by suicide," but
in America the different phrases are
regarded as synonymous. Infra, § 237.
At the argument Sharswood, C. J.,
asked the counsel if this were not so ;
but the point was not noticed in the
opinion, and the opinion followed a
case in which the phrase used was,
" die by his own hands." In the case
ot Ins. Co. V. Isett, 74 Peun. St. 176,
the court below charged : "If the as-
sured was not conscious of the act he
was committing, but acted under an
insane impulse or delusion sufB.cient
to impair his understanding or will, or
if his reason was so far overthrown
by his mental condition that he was
Incapable of exercising his judgment in
regard to the consequences, the defendants
are liable;" and, furthermore, nega-
tived one of the defendants' points, to
the effect that there could be no re-
covery if at the time of his death the
assured was conscious that death would
follow. This charge was affirmed.

218

These cases practically overrule Hart-
man V. Ins. Co., 21 Penn. St. 466,
where Black, C. J., said that standing
alone the words ' ' die by his own
hands," mean any sort of suicide.

' Life Association i\ Waller, 57 Ga.
533 ; Merritt v, Ins. Co., 55 Ga. 103.

2 Phillips V. Ins. Co., 26 La. Ann.
404.

3 Breasted v. The Loan Co., 8 N. Y.
299 ; Ins. Co. v. Groom, 86 Penn. St.
92; Phadenhauer v. Ins. Co., 7 Keisk.
(Tenn.) 567.

* Ins. Co. V. Moore, 34 Mich. 41.
" Death by his own hands in the case
of one non compos is as much the result
of disease as death by fever or con-
sumption," were the words of the
court; "the very object of life insur-
ance is to provide for death by disease
or in the ordinary coarse of nature."
And it was held that the policy could
only be avoided when the person was
felo de se, and there was criminality in
the act.

INSANITY AS RELATED TO LIFE INSURANCE. [§ 236.

opinion by Robertson, J., concurred in by Peters, J., that " there
may be moral as well as intellectual insanity, and essentially con-
tradistinguished from it."^ But this view was emphatically repu-
diated by Williams, C. J., with whom concuri'ed Hardin, J., form-
ing, therefore, two out of the four judges by whom the case was
heard. "The doctrine of moral insanity," said Williams, C. J.,
" ever dangerous as it is to the security of the citizen's life, and
pregnant as it is with evils to society, has but little or no applica-
tion to this case. Too uncertain and intangible for the practical
consideration of juries, and unsafe in the hands of even the most
learned and astute jurist, it should never be resorted to for exemp-
tion from responsibility save on the most irrefragable evidence,
developing unquestionable testimony of that morbid or diseased
condition of the affections or passions so as to control and over-
power or subordinate the will before the act complained of ; for if
the act is to be evidence of moral insanity for the suicide, so it will
be for the homicide, the parricide, the seducer and the ravisher."
And, in respect to the position of the court below, that, if " at the
instant of the commission of the act his (the deceased's) will was
subordinated by any uncontrollable passion or emotion causing him
to do the act, it was an act of moral insanity, and they ought, if
they so believe, to find for the plaintiff," he declared that, " in all
the vague, uncertain, intangible, and indefined theories of the most
impracticable metaphysicians on psychology and moral insanity, no
court of last resort in England and America, so far as has been
brought to our knowledge, ever before announced such a startling,
irresponsible, and dangerous proposition of law."

§ 236. In 1846, the question as to the construction of the phrase

" die by suicide," came before the English exchequer ^ , .

•^ ' . Rule in

chamber^ on the following facts: Louis Schwabe, in 1836, Enejiand as

insured his life for ^£999 with the defendants, the excep- '>°d?eby^^

tion in this case being that " every policy eifected by a ^^^'^i'^'^-

person on his own life shall be void, if such person shall commit

suicide, or die by duelling, or the hands of justice." Schwabe

died in 1845, and, on a suit on the policy, it was shown that he

voluntarily poisoned himself with sulphuric acid, under circum-

' See for a fuller abstract of this N. S. Ch. 53 ; Stormont v. Assurance

opinion, supra, § 178. Co., 1 F. & F. 22 ; Dufaur v. Ins. Co.,

8 Clift V. Schwabe, 3 Man. & Gr. 437 ; 25 Beav. 599.
see "White ik Assurance Co., 38 L. J.

219

§ 237.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

stances tending to show that he was of unsound mind. On the
trial, Creswell, J., charged the jury, " that, in order to find the
said issue for the defendants, it was necessary that the jury should
be satisfied that Schwabe died by his own voluntary act, being then
able to distinguish between right and wrong, and to appreciate the
nature and quality of the act that he was doing, so as to be a
responsible moral agent ; that the burden of proof as to his dying
by his own voluntary act was on the defendants, but, that being
established, the jury must assume that he was of sane mind, and a
responsible moral agent, unless the contrary should appear in evi-
dence." It was held, on a bill of exception, by Rolfe, Patteson,
Alderson, and Parke, JJ. (Wightman, J., and Pollock, 0. B., dis-
senting), that this direction was erroneous, and that the law, as
stated by Rolfe, B., was, " that every act of self-destruction is, in
common language, suicide, provided it be the intentional act of a
party knowing the probable consequence of what he is about."

§ 237. There have been, in comparison, but few cases before the
„ ,. . American courts in which the policies were worded

Rulings m _ _ ^ _ ^

thiscoun- "shall die by suicide," and it has been held, and by

try.

cases sustaining each of the opposing doctrines, that
there is no difference in meaning between the two phrases ;^ that is
to say that whatever construction is to be put upon the proviso in
relation to the question of insane suicide, the contract between the
insurer and insured is the same, no matter which phrase is used.
In Massachusetts, as we have already seen, where a policy used
the phrase " die by suicide," it was held that mere insanity does
not take a case out of the exceptions.^ So it was held in a case in
Tennessee^ (1872), in which the right and wrong test was distinctly
adopted, and Terry v. Ins. Co.,* as it was decided in the circuit
court, was followed, the words of the policy being " die by suicide."
In a recent (1875) case in Vermont,* the words were the same,
and the lower court charged the jury that it was not enough that
the insured was unable to distinguish right from wrong, but his
mind must have been so unsound that it couW be seen that the un-
soundness killed him ; that, if his mind was overthrown by an insane

' Life Ins. Co, v. Terry, ubi supra; ' Pliadenliauer v. Ins. Co., 7 Heisk.

Estabrook v. Ins. Co., 54 Me. 224. 567.

2 Cooper V. Ins. Co., 102 Mass. 277, * 1 Dill. C. C. 403.
supra, § 233. « Hathaway v. Ins. Co., 48 Vt. 335.

220

INSANITY AS RELATED TO LIFE INSURANCE. [§ 239.

idea that he must take his own life, and the idea controlled himself
and his reasoning faculties to that extent that he could not resist it,
so that, although his own mind contrived the means by which his
life was taken, and his physical strength carried them out and took
it, in reality this insane idea or impulse, and not his mind or his
will, took his life, the insurers were liable. This charge the
supreme court declared was quite as favorable to the insurance com-
pany as the law allowed, and that a degree of insanity short of
delirium or frenzy would excuse the act of suicide. It was further
ruled that it does not follow that because an insane man knows that
if he blows his brains out it will kill him, and that he does the act for
that purpose, therefore the act was that of a sane mind, voluntarily
and deliberately done.^ In a Pennsylvania case already cited, in
which the words were " shall die by suicide," the court followed
Life Ins. Co. v. Terry, saying, however, nothing as to the difference
in phraseology between the policy in that case and the policy be-
fore it.^

§ 238. It has been held, in New York, that, in the absence of
any stipulation, a policy taken out for the benefit of a u];Qthe
third party will not be avoided by the subsequent suicide known vio-

^ . -^ "^ . ^ lation of

of the insured.^ In a later case it was argued that the the law of
act would be covered by the proviso against the death doesVot^
of the insured, "in the known violation of the law of ing^ni^*'^
any state," but this was disallowed.*

§ 239. Of late the insurance companies have endeavored to guard
themselves against insane suicide by extending the proviso to read

> But it is probable that the jury 3 pitch v. Ins. Co., 59 N. Y. 557.

found that the deceased had committed ■• Patrick v. Ins. Co., 4 Hun, 263.

suicide under the influence of an insane See May on Insurance, 2d ed. § 324.

impulse which he could not resist, as There are two strong dicta in Pennsyl-

the verdict was against the insurance vania to the efi"ect that even in the

company, which would bring the case absence of any stipulation, a suicide

within the proviso as specified in Van by the insured would be a fraud upon

Zandt's case and in Dean's case. If this the company, and hence would avoid

be so, as the charge to the jury more the policy. Black, C. J., in Hartman

nearly approached the rule in those v. Ins. Co., 21 Penn. St. 466, who com-

cases than the rule in Terry's case, the prehended in this the case of an insane

remarks of the supreme court quoted suicide ; and Trunkey, J., in Bank of

above must be taken to be obiter. Oil City v. Ins. Co., 6 Leg. Gaz. 348 ;

2 Ins. Co. V. Groom, 86 Penn. St. 92, 5 Big. Life Ins. Rep. 478.
supra, § 234.

221

§ 240.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

"Sane or "if the insured shall die by suicide, sane or insane,"
agoodcon- etc. That the companies have a right to do so is in-
dition. dubitable, and it has been held that the only construc-

tion to be given to these words is the one that they bear on their
face, namely, that the company in case of suicide is to be exempt
from all liability.^ But they are not meant to cover the case of
unintentional self-destruction.^

§ 240. It is not necessary for the defendant to show that there
*was a capacity on the part of the deceased to distinguish
right from wronor. This is aside from the issue. That
issue is, did the assured intend, freely and intelligently,
to destroy himself ? What his views of right and wrong
were on the subject is immaterial. Suicide may have appeared to
him under the circumstances even a meritorious act ; but this would
not take the case out of the exception. If he intended to do the act
freely — ^. e,, without constraint of an irresistible force, mechanical
or moral ; and if he intended to do it intelligently — i. e., if his
mind, when acting on the particular topic, was unswayed by insane
delusion, then the exception covers the case, and the policy is
avoided. And this brings the law on this point in harmony with

Right and
■wrong test
not appli-
cable.

' Bigelow V. Ins. Co., 93 U. S. 284
Chapman v. Ins. Co., 6 Biss. 238
Mallory v. Ins. Co., 54 N. Y. 651
De Gogorza v. Ins. Co., 65 N. Y. 232
Pierce v. Ins. Co., 34 Wis. 389 ; Ad-
kins V. Ins. Co., 70 111. 27.

2 Pierce v. Ins. Co., 34 Wis. 389.
Thus, death by an overdose of medi-
cine, self-administered, does not avoid
such a policy; Penfold v. Ins. Co. (N.
Y. Court of Appeals, 1881), 11 Law
Rep. 849; Lawrence v. Ins. Co., 5
Brad. (111.) 280 ; unless there -was
culpablfe negligence ; Ins. Co. v. Law-
rence, 8 Brad. 488.

In a letter from Horace Walpole to
Bentley, dated Jan. 9, 1755, we have
the following : —

"On the occasion of Mountford's
story I heard another more extraordi-
nary. If a man insures his life, this
killing himself vacates the bargain.

222

This (as in England almost everything
begets a contradiction) has produced
an office for insuring in spite of self-
murder, but not beyond three hundred
pounds. A man went and insured his
life, securing this privilege of free-
dying Englishmen. He carried the
insurers to dine at a tavern, where
they met several other persons. After
dinner he said to the life-and-death
brokers, ' Gentlemen, it is fit you
should be acquainted with the com-
pany ; these honest men are trades-
men to whom I was in debt, without
any means of paying but by your assist-
ance ; and here I am your humble
servant.' He pulled out a pistol and
shot himself. Did you ever hear such
a mixture of honesty and knavery?"
Similar agreements have been held
void as against public policy. Moore
V. Woolsey, 4 E. & B. 243.

INSANITY AS RELATED TO LIFE INSURANCE.

[§ 241.

the general doctrine of insane delusions already declared.^ If the
deceased did not know what he was doing when he killed himself,
he can be no more said to " have laid violent hands on himself," or
" to have committed suicide," than he could be if his hand had
been seized by superior force and thus made to discharge at his
breast a fatal shot. No man can be charged Avith an act done by
him in blind terror, or in unconsciousness, or under a strain of
mental or moral compulsion which deprives him of his reason.^ And
if he be thus impelled to the act, the act is not chargeable as his.

§ 241. The pathological character of suicide is here- g^^jpi^g ^q^
after distinctively discussed.^ It is enough now to say conclusive

... * cvidcncG of

that suicide is not conclusive evidence of insanity in re- insanity,
spect to a will executed even immediately previous.

« Supra, §§ 125-145.

2 See supra, § 108 et seq.

3 Infra, §§ 523, 636. See an in-
teresting paper by Dr. Ordronaux, in
20 Am. Journ. of Ins. 369 ; an arti-
cle by Royal Whitman, in American
■Tourn, of Med. Sci. clxiv. p. 472 ; and
articles in 34 Am. Journ. Ins. 425 ; 35
ibid. 37 ; and a letter to the editor of
the Journ. Ment. Sci., vol. 23, p. 107.

* Chambers v. Queen's Proctor, 2
Curt. 415 ; Burrows v. Burrows, 1
Hagg. 109 ; Wolff v. Ins. Co., 7 Rep.
357 ; Brooks v. Barrett, 7 Pick. 94 ;
Coffey V. Ins. Co., 44 How. 481 ; Weed
V. Ins. Co., 70 N. Y. 561; Duffield v.
Robeson, 2 Harr. 375 ; Ins. Co. v.
Peters, 42 Md. 414 ; McElwee r. Fer-
guson, 43 Md. 479 ; Merritt v. Ins. Co.,
55 Ga. 103 ; Phadenhauer v. Ins. Co.,
7 Heisk. (Tenn.) 567 ; Com. v. Thorn-
ley, 47 111. 192 ; Hathaway v. Ins. Co.,
48 Vt. 335. See May on Ins. 2d ed.
§ 325.

As illustrating this we have (1872)
the following : —

" At an early period of his life, Lord
Bathurst inquired of an old Bishop of
Ely what was his secret for insuring
longevity. ' Your question is too gene-
ral, my lord,' replied the prelate, 'but
if you will ask me any particular ques-

tion, I will give you a specific answer.'
' Then, as to eating, my lord V said
Lord B. ' Why, my lord, I eat what I
like, and as much as I like.' 'Next,
as to drinking?' ' Why, with regard
to drinking, my lord, I observe pre-
cisely the same rule ; I drink what I
like and as much as I like.' ' Excel-
lent rules !' replied Lord B., ' which I
am determined punctually to follow.'
Lord B. did follow these rules to hilar-
ity, but rarely to intemperance. He
lived to the advanced age of ninety-
one. Another rule which his lordship
invariably pursued contributed, doubt-
less, much more to the prolongation of
his life than the Epicurean code of the
Bishop of Ely. This was bodily exer-
cise in riding and walking, with which
he suffered neither pleasure nor busi-
ness to interfere, and which he habit-
ually practised till within a short time
of his death. For this practice, after
his retirement from public life, he had
great facilities in the extensive and
various walks on his ample domain at
Cirencester. In the autumn of the
year 1775, a slight disease occurred in
one of his knees, for which he was oc-
casionally visited by Sir Caesar Haw-
kins. The malady, though somewhat
aggravated by a fall on a polished

223

§ 241.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

floor in his own house, was apparently
of no further consequence than as it
interfered with his accustomed rides
and walks in his park. On Thursday,
September 9, 1775, Mr. Parry and his
eldest son, afterwards Dr. Caleb Hillier
Parry, dined with him. He ate and
drank in his accustomed way, was all
urbanity and mirth, quoted with flu-
ency and exactness many appropriate
lines from the Latin and English poets,
and related many anecdotes of the wits
who were the contemporaries of his
earlier years. Among the rest he told
the following story of Pope, who, in
the former part of his life, had been
desperately in love with Lady Mary
Wortley Montague, though there now
existed between these persons the most
rancorous hatred, covered with the
flimsy veil of polite civility.

' ' ' Lady Mary went one day to Lord
Burlington's, in Piccadilly, and in-
quired if his lordship was at home.
The servant replied that he was not,
but that Mr. Pope was above in one of
the drawing-rooms. "Oh," said Lady
Mary, "I should wish to see him ; show
me the room." The servant accord-
ingly showed her up stairs, opened the
drawing-room door, and, having an-
nounced her name, retired. After a
short time, however, hearing the draw-
ing-room bell ring, he reascended the
stairs and met Lady Mary, who had
just left the apartment. "You told
me," said she, "that Mr. Pope was in
the drawing-room; I saw nothing there
but a great baboon asleep in an arm-
chair."

" ' This story was told by the ser-
vant to Lord Burlington, and, in the
usual course of such reports, was whis-
pered by some good-natured friend to
Mr. Pope himself. The indignant poet
shortly afterwards called in his car-
riage upon Lady Mary, whom he en-
treated to accompany him, in order, as

224

he said, to show her the excellent
effect produced by the substitution of
rails for the dead brick wall which had
intercepted, from the road, the view of
Kensington Gardens. She accepted the
invitation, and, notwithstanding the
great imperfection of her sight, which
she was extremely averse to acknowl-
edge, but which prevented her dis-
tinguishing objects at the distance of
twenty feet, most politely acquiesced in
all the extravagant praises which, dur-
ing an entire hour, Mr. Pope lavished
on the beautiful scenery which every-
where struck the view through the
pretended iron rails. The exhibition
being ended, Mr. Pope took the earliest
opportunity of communicating to all
his friends the success with which he
had thus retorted on Lady Mary her
illiberal satire on his personal defects.'

' ' When the company rose, Lord
Bathurst walked with little apparent
difficulty into an adjoining room.

" This meal was the last that Lord
Bathurst ever ate. Unable on account
of his knee to take his accustomed
exercise in the open air, and tired of
an existence which was to be protracted
on such terms, he determined, like
Atticus, to cease to live. Inflexible to
his purpose, from this moment he re-
fused all sustenance, and thus, gradu-
ally sinking, expired on the Thursday
following (Sept. 16), at the precise in-
terval of one week from that day on
which the narrator had witnessed his
almost unrivalled blaze of literary and
social talents. This fact respecting
Lord Bathurst was more than once re-
lated by Mr. Parry, and was many
years afterwards confirmed to his son
by the succeeding earl, who accom-
panied the latter round the park in
order to exhibit those spots which had
been so often the scenes of his boyish
felicity." — From ^1 Memoir of the Rev.
Joshua Parry, Nonconformist Minister of

INSANITY AS RELATED TO LIFE INSURANCE.

[§ 241.

Cirencester, xviili some original Essays and
Correspondence, hy the late Charles Henry
Parry, F.R.S., edited by Sir John E.
Eardley Wilmot, Bart. , Recorder of War-
wick. London : Hamilton, Adams <f- Co.
1872.

In Wolff V. Ins. Co. (U. S. Cir. Ct.
E. D. Micli. 1879), ut supra, Brown, J.,
said: "It is insisted, however, that
the insane acts relied upon were sim-
ply eccentricities of demeanor, or at
most temporary hallucinations, which
lasted but a few minutes at a time,
and ceased entirely some months be-
fore his death, leaving him perfectly
sane and able to take care of his busi-
ness. It is quite true there is no pre-

sumption of the continuance of insanity
temporary in its character ; but I ap-
prehend that in most if not all the
cases that support that doctrine the
delusions were connected with some
bodily disease, such as fever, pleurisy,
or delirium tremens, and necessarily
ceased with returning health, or that
they occurred so long previous to the
commission of the act in question there
could be no possible relation between
them of cause and effect. People v.
Francis, 38 Cal. 183 ; Staples v. Wel-
lington, 58 Me. 459, 460 ; Hall v. Unger,
2 Abb. U. S. 514; Ins. Co. v. Peters,
42 Md. 414 ; Carpenter v. Carpenter, 8
Bush, 283 ; 2 Greenl. Ev. 689."

VOL. I. — 15

225

§ 242.] MENTAL UNSOUNDNESS IN ITS LEGAL KELATIONS.

CHAPTER YII.

INSANE PEESONS AS WITNESSES.

Test is albility to understand oath,
§242.

Habeas corpus may bring in insane wit-
ness, § 243.

Corroboration by sane witnesses im-
portant, § 244.

Credibility a question for the jury ;
and so as to witnesses under influ-
ence of narcotics, etc., § 245.

Testis § 242. A person called as a witness is not rendered

understand i^iconipetent by insanity to be sworn, if he understands
an oath. what is the nature of an oath.^

I R. V. Hill, 2 Den. C. C. 254; T. &
M. 582 ; Fennell v. Tait, 1 C. M. & R.
584 ; 5 Tyr. 218 ; Spittle v. Walton,
L. R. 11 Eq. 420 ; Boughton v. Knight,
L. R. 3 P. & D. 72 ; Holcomb v. Hol-
comb, 28 Conn. 177 ; Ins. Co. v. Hunt,
14 Hun, 169 ; Hand v. Burrows, 23
Hun, 330 ; People v. N. Y. Hospital, 3
Abb. N. C. 229, n. ; Com. v. Reynolds,
cited 10 Allen, 64 ; Kendall v. May, 10
Allen, 59 ; Coleman v. Commonwealth,
25 Gratt. 865 ; Campbell i'. State, 23
Ala. 44. See Wh. Crim. Ev. § 370;
see also Livingston v. Kiersted, 10
Johns. 362.

In R. V. Hill, ut supra, the defendant
(Browne's Med. Jur. of Insan., Lond.
1871) was an attendant in charge of a
ward in a lunatic asylum. He was in-
dicted for the manslaughter of Moses
James Barnes, one of the patients under
his care. The prisoner was tried before
Coleridge, J., assisted by Cresswell, J.,
at the central criminal court. He was
convicted, but a question was reserved
for the opinion of the court as to the

226

propriety of having admitted a witness
of the name of Richard Donelly, who
was a patient in Mr. Armstrong's
lunatic asylum, at Camberwell, on the
part of the prosecution. When Donelly
was called, he was examined by the
prisoner's counsel before he was sworn.
In the course of the preliminary ex-
amination he said he was fully aware
that he had a spirit, and twenty thou-
sand of them ; they were not all his ;
they spoke to him constantly. He
fully understood the nature of an oath,
and declared his belief in religion, and
that he was a Romau Catholic. A
medical witness believed him to be
capable of giving an account of any
transaction that happened before his
eyes. He was then sworn, and gave a
perfectly connected and rational ac-
count of the transaction which he re-
ported himself to have witnessed. He
was not certain as to the day of the
week on which the circumstances he
spoke of took place, and on cross-
examination said: "These creatures

INSANE PERSONS AS WITNESSES.

[§ 244.

§ 243. A habeas corpus ad testificandum may be issued Habeas cor-

. . . p . , , pus may

to bring into court a witness irom an insane asylum.^ brin^

§ 244. "It is well," remarks Mr. Browne, in the work ^"°^^«'

insist upon it it was Tuesday niglit,
and I think it was Monday." Where-
upon he was asked, "Is what you
have told us what the spirits told you,
or what you recollect without the
spirits?" And he said, "No, the
spirits assist me in speaking of the
date. I thought it was Monday, and
they told me it was Christmas-eve —
Tuesday ; but I was an eye-witness,
an ocular witness, to the fall to the
ground." The question for the court
of criminal appeal was — Richard Don-
elly's competency as a witness. The
accused having been convicted, the
case was. argued before Lord Campbell,
C. J., Coleridge and Talfourd, JJ., and
Alderson and Piatt, BB. The convic-
tion was upheld. Lord Campbell, in
delivering his judgment, said: "The
question is important, and has not yet
been solemnly decided after argument ;
but I have no doubt that the rule was
properly laid down by Parke, B., in
the case which was tried before him,
and that it is for the judge to say
whether the insane person has the
sense of religion in his mind, and
whether he understands the nature
and sanction of an oath, and then the
jury are to decide on the credibility
and weight of his evidence. . . .
A man may, in one sense, be non
compos, and yet be aware of the nature
and sanction of an oath. In the par-
ticular case before the court, I think
the judge was right in admitting the
witness ; I should certainly have done
so myself. ... It has been argued
that any particular delusion, commonly

called monomania, makes a man inad-
missible. This would be extremely
inconvenient in many cases in the
proof either of guilt or innocence ; it
might also cause serious difficulties in
the management of lunatic asylums.
I am, therefore of opinion, that the
judge must in all cases determine the
competency, and the jury the credi-
bility. Before he is sworn, the insane
person may be cross-examined, and
witnesses called to prove circumstances
which might show him to be inadmis-
sible ; but in the absence of such proof
he is prima facie admissible, and the
jury must attach what weight they
think fit to his testimony. ' ' These views
have been adopted in several recent
cases, though in many states parties
who are of unsound mind at the time
of examination are forbidden by statute
to testify. See Wh. Crim. Ev. § 371 ;
Waring v. Waring, 6 Moore's P. C. C.
p. 349 ; Holcomb v. Holcomb, 28 Conn.
177 ; Coleman v. Com., 25 Gratt. 865 ;
Sarbach v. Jones, 20 Kan. 497 ; Hand
V. Burrows, 23 Hun, 330 ; Ins. Co. v.
Hunt, 14 Hun, 169 ; and see a note by
Dr. Ordronaux to People v. N. Y. Hos-
pital, 3 Abb. N. C. 229. In this con-
nection, adds Mr. Browne (Med. Jur. of
Ins. Mf supra), the following cases may be
consulted : R. v. Eriswell, 3 T. R. 707 ;
Currie v. Child, 3 Campb. 283. See also
Chapman v. Greaves, 2 Campb. 333, n. ;
Adams v. Kerr, 1 Bos. & P. 360 ; Cun-
cliflfe V. Sefton, 2 East, 183 ; and Ber-
nett V. Taylor, 9 Ves. Jr. 381 ; R. v.
Morley, quoted in R. z;. Hill.

The Journal of Mental Science for

» Spittle V. Walton, L. R. 11 Eq. 420 ; 40 L. J. Chanc. 368. See Fennell
V, Tait, ut supra.

227

§ 245.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

Corrobora- already cited, " in all cases in which the evidence of per-
sane wit- sons of unsound mind is had recourse to, to endeavor to
portant™' Corroborate the testimony in some particulars, at least,

by means of the depositions of sane witnesses. The im-
portance of this rule will be made manifest by the statement of the
evidence of James Sumner, an inmate in the Birmingham Borough
Lunatic Asylum, by means of which William Braley, a warden in
said asylum, was a few weeks ago proved, to the satisfaction of the
stipendiary, to have caused the death of a man named John Hinton.
The prisoner Braley was committed for trial at the next assizes."^
§ 245. In another work it is shown that deficiency in perceptive

powers in a witness, if total, excludes;^ that a witness

for jury; maybe examined as to his capacity;^ that credibility
and so as depends not only on veracity, but on competency to
observe ;^ that incapacity to relate may affect compe-

to wit-
nesses un-
der Influ- ,,..,.

enceofnar- tency ;^ that intoxicated witnesses may be excluded;^
^° ^^^^ ' and that credibility is generally for the jury.'' The
same remarks apply to witnesses testifying to facts which trans-
pired while they were under the influence of chloroform or ether.
In cases of rape, to be hereafter reported under that particular head,

January, 1870, mentions an interesting
case of the admission of the testimony
of an insane witness. A confined
lunatic was beaten by his keeper, and
the results were pleuritis and death.
The only witness was a fellow-lunatic.
The latter, who had been for two
months convalescent, had suffered from
melancholy with hallucination of the
senses. His testimony was exact, and
betrayed no traces of insanity. Though
the issue rested on his credibility, the
defendant was convicted.

A remarkable prosecution was insti-
tuted in Maryland, in 1866, against
the officers of the Mount Hope Institu-
tion for the Insane, in that state, the
prosecutors being lunatic patients.
The complaint turned out to be un-
founded, and the defendants were ac-
quitted, but there was no question as
to the admissibility of the prosecutors as

228

witnesses, incredible as some of their
statements were afterwards regarded.
See report in 23 Am. Journ. of Insan.
311.

' The prisoner Braley, Mr. Browne
states, has, since the, above was writ-
ten, been tried and acquitted. The
jury seemed to place no reliance upon
the evidence of Sumner, although he
was evidently quite sane at the time
it was given. Sumner admitted that,
previous to his asylum experience, he
had known something of prisons, which
may to some extent account for the
verdict.

2 Wh. on Ev. § 401.

3 lb. § 403.
* lb. § 404.
6 lb. § 405.
6 lb. § 418.
^ lb. § 417.

INSANE PERSONS AS WITNESSES. *" [§ 245.

testimony of this kind has been received as sufficient to sustain con-
victions ; and, unless such testimony is held admissible (its credi-
bility being for the jury), there would be no redress for injuries
inflicted on persons under the influence of anaesthetics. At the
same time it is proper to call attention to the following points stated
in an interesting essay, touching the value of testimony of this
class, communicated in 1860 to the Ohio Medical Society by Dr. T.
L. Wright, of Bellefontaine, and printed among the transactions of
that society: —

" 1st. That will is always active when there is mental conscious-
ness.

" 2d. That will cannot be directly impressed by another will,
but that the judgment may be misled, and the will, though free,
may act upon false conceptions in a manner diff"erent from what it
would do if the mind and senses were perfectly active.

" 3d. There may be venereal connection with a female while she
is conscious and unwilling ; but there may be no venereal connec-
tion with a female, while she may honestly believe she has been
under the delusion of organic sensibilities, occasioned by the pecu-
liar action of chloroform upon her nervous system.

" 4th. It is impossible for a woman very often to decide whether
actual connection has been had or not.

"5th. The evidence of a person, respecting transactions that
occur to the mind while partly conscious, is always liable to the
most monstrous fallacies, and it should not be received as sufficient
proof of any fact.

" 6th. Evidence of females, respecting rape upon themselves
while unconscious from chloroform, is particularly liable to suspi-
cion.

" 7th. Evidence of females respecting rape under such circum-
stances should be subjected to all the rules and exceptions of cir-
cumstantial evidence, and should be fully corroborated by other
circumstances."

229

§ 246.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

CHAPTER yill.

EVIDENCE.

I. Mode of Proof.

Question belongs to distinctively legal
treatises, § 246.

All persons presumed to be sane, § 247.

Sanity presumed to continue, § 24S.

Chronic insanity presumed to be con-
tinuous, § 249.

In such cases burden is on party set-
ting up lucid interval, § 250.

In criminal cases preponderance of
proof required to prove criminal
lunacy, § 251.

Insanity to be inferred from facts,
§252.

Physical peculiarities and diseases ad-
missible, § 253.

So of hereditary tendency, § 254.

Inquisition prwia /aae proof, § 255.

Hearsay inadmissible, § 256.

II. Witnesses.

Non-experts as well as experts may
give opinion as to sanity, § 257.

Kot competent as to occult conditions,
§ 258.

Non-experts cannot be asked as to a
hypothetical case, § 259.

Subscribing witnesses admissible as to

■ sanity, § 260.

Kon-experts admissible as to drunken-
ness, § 261.

Experts admissible as specialists, § 262.

Are entitled to special fees, § 263.

Cannot be examined as to matter of
common knowledge, § 264.

Whether matter belongs to expert is
for court, § 265.

Maybe examined as to scientific autho-
rities, § 266.

May be examined as to hypothetical
case, but not as to disputed facts,
§267.

Difiiculty in determining who are ex-
perts as to insanity, § 268.

No sufficient test of capacity, § 269.

Testimony to be closely scrutinized,
§270.

Difficulty induced by speculative ten-
dencies of experts, § 271.

And from the fact that experts are
feed by parties, § 272.

And because there is no expert ap-
pellate court, § 273.

Experts should be assessors, § 274.

Their testimony should not be specu-
lative, § 275.

Examinations should be thorough, §
276.

In insanity this is peculiarly requisite,
§ 277.

Prior history of patient should be un-
derstood, § 278.

III. Books.

Scientific books inadmissible, § 279.

I. PROOF.
Question ^ 246. The consideration in detail of the technical

belongs to • r> f • • i i

distinctive- rules bearing on the proof of insanity belongs more
properly to distinctively legal treatises. It will be
230

ly legal

treatises.

EVIDEISrCE. [§ 250.

sufficient for tlie purposes of the present chapter to note the con-
clusions which in those works are given.

§ 247. Sanity being the normal condition, the presumption of

law is that all persons whose conduct comes up for legal . ,

•^ . ± cj ^Yi persons

examination are sane. It is true that there may be presumed
something in the act which is to be examined which is so
preposterous as to make it improbable that it could have sprung
from a sane agent. But this is a matter of extrinsic proof, and
does not aifect the principle that until contesting evidence is re-
ceived, all persons are to be held sane.^

§•248. In addition to this general presumption of law, bearing on
all human beings, we have a concrete presumption of fact, „

. . Sanity pre-

varying with each special case, that character continues, sumed to
and that a person who was sane yesterday is sane to-day.^

§ 249. When chronic insanity, also, has supervened, then it is a
presumption of fact that it continues. Undoubtedly this, du-onic in-
as has been observed, is in one sense a petitio principii, sanity pre-
it being equivalent to saying that that which is chronic be con-
continues. But there is something more than a jjetitio
princijjii in the position that a state which existed yesterday will
be presumed to continue to exist to-day. And this is a position
that applies to all conditions which have in them the element of
permanence.^

& 250. If chronic insanity is established, the burden In such
' ^ , , "^ , . . cases bur-

of proving a lucid interval, during which an instrument den is on

is alleged to have been executed, is on the party setting tingup^

up suck instrument.^ lervai!"'

It is otherwise, however, when the prior insanity alleged

was spasmodic and parenthetical,^ or consisted of delirium tremens.^

• Supra, §§ 61 et seq. Wh. on Ev. §§ R. 163 ; Hix v. Whittemore, 4 Mete.
1226-1252. 545 ; Trish v. Newell, 62 111. 196 ; 1

2 Wh. on Ev. § 1252. Jarm. Wills, 65.

» Wli. on Ev. § 1253. See 24 Alb. L. 5 Supra, § 61. Lewis v. Baird, 3 Mc-

J. 304. Lean, 55 ; Menkins v. Lightner, 18 111.

* See cases cited § 61, and also § 744; 282 ; Achey v. Stephens, 8 Ind. 411 ;
Wh. on Ev. § 1253; and see State v. State v. Wellington, 58 Maine, 453;
Spencer, 21 N. J. L., 196 ; R. v. Stokes, Trish v. Newell, 62 111. 196.

3 C. & K. 188 ; R. v. Taylor, 4 Cox C. 6 State v. Sewell, 3 Jones Law (N. C.)
C. 155 ; Cartwright v. Cartwright, 1 250.
Phill. 90 ; Hoge v. Fisher, 1 P. C. C.

231

§ 255.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

Whether the good sense of a will made during an alleged lucid
interval is admissible to prove the intermission of the insanity, has
been questioned.^ But if the will be shown to be the free act of the
person making it, its contents must always be received as giving
materials from which the party's mental condition can be inferred.^

§ 251. In criminal issues, as is elsewhere shown, there has been
. . , much discussion on the question whether insanity, when

In criminal ^ *'

issues pre- a defence, must be proved beyond reasonable doubt.
of proof re- The better opinion is, that, to sustain a verdict of criminal
prove^ ^° lunacy, there should be a preponderance of proof sus-
criminai taining the hypothesis of insanity, but that when- the
defendant's mental condition enters into the question
(e. g. in cases where intention or knowledge has to be shown) then
he cannot be convicted of an offence requiring the particular intent
or knowledge unless it appears beyond reasonable doubt that he
had mental capacity for the purpose.^ But in any view the burden
of proof is on the party setting up insanity.'*

§ 252. Insanity is to be inferred from all the facts in the par-
j . ticular case in litigation. Whatever is logically calcu-

be inferred lated either to establish or to repel the hypothesis of

from facts. . ..,..,, , . . "^

insanity is admissible on such an issue. ^
Physical ^ 253. Physical peculiarities may be put in evidence

pecuhan- . . ./ i

ties and when likely to explain the party's mental condition;

admissible, and SO of diseases likely to have an effect on the mind.^

§ 254. Proof of insanity among relations is also ad-

reditary missible when the relationship is sufficiently near to lead

en ency. ^^ ^j^^ inference of insanity in the blood.''

§ 255. How far an inquisition of lunacy is admissible to prove
T . .,. insanity is elsewhere discussed.^ An inquisition of lunacy

Inquisition ...

prima facie may be prima facie evidence when offered to affect the

credibility of a witness, though even if admissible in such

a case it is open to rebuttal,^ When offered against parties to the

' See Jackson r. Van Dusen, 5 Johns. * lb. § 60.

144. 5 wh. on Ev. § 1254.

2 Supra, §§ 61 et seq. Kingsbury v. 6 \Yh.. Cr. L. 8th ed. § 64.
Whitaker, 32 La. Ann. 1055; 34 Alb. 7 \Vh. Cr. L. 8th ed. § 65.

L. J. 304. 8 \vh. on Ef. §§ 403, 812, 1254.

3 Wh, Cr. L. 8th ed. § 61. ^ Wh. on Ev. § 403.

232

EVIDENCE. [§ 257.

procedure, others than the alleged lunatic, it is conclusive unless
fraud be shown. ^ So far as concerns third parties, a finding may-
be admissible to determine the burden of proof ; so far as concerns
the party himself, who, on the hypothesis of his insanity, is incom-
petent to bind himself, it may be orAj prima facie proof.^

§ 256. Hearsay in a neighborhood is in any view in- Hearsay in-
admissible, either to prove or disprove sanity .^

II. WITNESSES.

§ 257. The admission in evidence of the opinions of friends, of
nurses, and of attendants, though not experts in mental Non-ex-
disease, may be justified on several grounds. In the first P^^s^as
place, if such evidence is excluded, no other can be found perts may
that can so satisfactorily take its place. An attendant, ion as to
who watches continuously by the bedside of a patient — canity.
a business friend having constant access to his counting-room — can
form, if intelligent and experienced, a far more reliable opinion of
the patient's mental state, than could a medical expert, judging
merely from occasional visits, visits at which excitement Avould be
natural, if not simulation attempted. If the opinion of the spe-
cialist, on comparatively imperfect information, is admissible, we
cannot exclude the opinion of the non-specialist. In the second
place, opinion is in most cases only facts at short hand, and this is

1 Wh. on Ev. §§ 811, 1254. incompetency at any time covered by

* lb. See supra, § 13. the finding, and a party setting up a

It may be shown that the inquisi- contract made by the lunatic or habit-

tion was ea; parte and partial. Banna- ual drunkard during this time must

tyne v. Bannatyne, 14 Eng Law and show he was sane at its execution, for

Eq. 581; 16 Jur. 864; 2 Rob. 475. the presumption in favor of sanity is

The finding is not binding on third thereby changed. Noel v. Karper, 53

parties, and operates merely to de- Penn. St. 97.

stroy the presumption of sanity, and Fits of insanity for twenty years

to throw the burden of proving it on prior to the execution of certain deeds

the party alleging it. Snook v. Watts, by a man found some years afterwards,

11 Beav. 105; Elliott v. Ince, 7 De G. by a commission, to have been all along

M. & Gr. 475. insane, have been ruled in England to

The eifect of such commissions on ^e ^lo answer to a prima facie case, on

the party himself, so far as involves ^.n issue to his sanity at the execution

his right to contract, has been already of the deeds. Ferguson v. Barrett, 1

discussed. Where an inquisition finds F. & F. 613. See Jacobs v. Richards,

that a man is a lunatic or habitual 18 Beav. 300.
drunkard, it is prima facie evidence of ^ Wh. on Ev. § 1254.

233

§ 257.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

eminently the case with regard to opinions as to sanity. It may
be said that the facts on which an opinion as to sanity is based
should be given, not the opinion. But when we inquire for these
facts, we find that these are also opinions. " My opinion is that
the patient was insane." " From what facts do you infer this ?"
" He was excited ; he talked incoherently ; his manner was wild."
Yet each of these specifications is an opinion. If we are to reject
opinions, therefore, in such cases, we must reject the only material
from which a judgment as to sanity can be drawn. And in the
third place, it may be questioned whether the opinion of an intel-
ligent and experienced observer as to sanity is not after all pri-
mary. If we want to know whether a particular event occurred in
day or in night, w^e put the question directly, " was it day ?" We
do not ask whether there was sunlight on one place or shadows on
another, or whether the objects on which the observer's eye was
turned were radiant in their specific colors, or were colorless in the
darkness of night. And so with insanity. It is a condition which
impresses itself as an aggregate on the observer. We cannot take
it to pieces. If we do the efi'ect is gone. The grand effect alone
is that from which we are to judge. It is true that we must give
reasons, if asked, for this efi'ect. But, after all, it is the effect that
determines. For these and other reasons it has been held that
non-experts, when intelligent and experienced, may be asked as to
their opinion of the sanity of a person with whom they have been
well acquainted.^

> Wheeler v. Alderson, 3 Hagg. 602
Wright V. Tatham, 5 CI. & F. 692
Harrison v. Rowan, 3 Wash. C. C. 580

Castner v. Sliker, 33 N. J. L. 95, 507;
Townshend v. Townsliend, 7 Gill, 10 ;
Weems v. Weems, 19 Md. 334; Wil-

ing. Co. I'. Rodel, 95 U. S. 232 ; Hardy liams v. Lee, 47 Md, 321 ; Clark v.

V. Merrill, 56 N. H. 227; Cram v. State, 12 Ohio, 483 ; Doe v. Reagan, 5

Cram, 33 Vt. 15 j Fairchild v. Bas- Blackf. 217 ; Beaubien v. Cicotte, 12

comb, 35 Vt. 398 ; Hathaway v. Ins. Mich. 459 ; Butler v. Ins. Co., 45 Iowa,

Co., 48 Vt. 335 ; Com. v. Sturtivant, 93 ; Clary v. Clary, 2 Ired. L. 78 ;

117 Mass. 122 ; Grant v. Thompson, 4 Powell v. State, 25 Ala. 21 ; Stuckey

Conn. 208 ; Kinne v. Kinne, 9 Conn. v. Bellah, 41 Ala, 700 ; Wilkinson v.

102; Real v. People, 42 N. Y. 270; Moseley, 30 Ala, 562 ; Baldwin y. State,

Fagnan v. Knox, 40 N. Y. Sup. Ct, 41 ; 12 Mo. 223 ; Dove v. State, 3 Heisk.

Rambler v. Tryon, 7 S, & R, 90 ; Wil- 348 ; People v. Sanford, 43 Cal. 29 ;

kinson v. Pearson, 23 Penn. St. 177 ; Pigg v. State, 43 Tex. 108 ; Garrison v.

Titlow V. Titlow, ,^4 Penn. St. 216 ; Blanton, 47 Tex. 299 ; McClackey v.

234

EVIDENCE.

[§ 259.

Such testimony, when given by persons of probity, intelligence,
and experience, constantly about the patient, is more likely, in cases
of alleged chronic idiocy or delirium, to lead to right conclusions,
than is the testimony of experts, employed professionally, and pay-
ing only occasional visits.^

§ 258. But while this is the case with such insanity as may be
readily determined by non-experts, and in cases in which
opinion is a mere rendering of facts at short-hand, it is tent asTo^"
otherwise as to occult conditions of rare occurrence, occuitcon-
concerning which those versed in the treatment of the
insane are best qualified to speak. As to these, inexperienced lay
attendants or friends cannot, it is said, give opinions, but are limited
to a statement of such facts as are within their range of observa-
tion.^ And there is a line of cases ruling that in no case can a non-
expert give an opinion detached from the facts on which it rests. ^

§ 259. An important distinction, however, is to be here noticed.
An expert in mental disease may be asked as to a Non-
hypothetical case. He is supposed to be familiar with caunofbe
the workings of mental disease ; and the question put to asked as to
him is virtually this : " Judging from your experience icai case.

State, 5 Tex. App. 320. That some
qualification is a prerequisite, see Suth-
erland V. Hawkins, 56 Ind. 343.

J Rutherford v. Morris, 77 111. 397 ;
Rankin v. Rankin, 61 Mo. 295.

2 As limiting non-experts to a bare
statement of facts, see State v. Pike,
49 N. H. 399 ; Com. v. Wilson, 1 Gray,
337 (but see Hardy v. Merrill, 56 N. H.
227; Com. v. Sturtivant, 117 Mass. 122) ;
Dewitt V. Barley, 5 Seld. 371 ; Clapp
V. FuUerton, 34 N. Y. 190; Real v.
People, 42 N. Y. 270 ; Sears v. Schafer,
1 Barb. 408; Higgins v. Carlton, 28
Md. 115 ; Runyan v. Price, 15 Ohio St.
1 ; Farrell v. Brennan, 32 Mo. 328 ;
Gehrke v. State, 13 Tex. 568. From
this limitation, however, subscribing
witnesses are excepted. Ware v. Ware,
8 Greenl. 42 ; Poole v. Richardson, 3
Mass. 330 ; Logan v. McGinnis, 12 Penn.
St. 27 ; Titlow v. Titlow, 54 Penn. St.

216 ; Egbert v. Egbert, 78 Penn. St.
326 ; Elder v. Ogletree, 36 Ga. 64.

3 Poole V. Richardson, 3 Mass. 330 ;
Hathorn v. King, 8 Mass. 371 ; Dickin-
son V. Barber, 9 Mass. 225 ; Kinne v.
Kinne, 9 Conn. 102 ; Vanauken ex
parte, 10 N, ,J. Eq. 186 ; Lowe v. William-
son, 2 N. J. Eq. 82; Sloan v. Max-
well, 3 N. J. Eq. 563; Gardiner v.
Gardiner, 34 N. Y. 155 ; Sisson v. Con-
ger, 1 Thomp. & C. 564 ; Clapp v. Ful-
lerton, 34 N. Y. 190 ; Howell v. Taylor,
18 N. Y. Sup. Ct. 214; Rambler v.
Tryon, 7 Serg. & R. 90 ; Bricker v.
Lightner, 40 Penn. St. 199 ; Gibson i'.
Gibson, 9 Yerg. 329 ; Dorsey v. War-
field, 7 Md. 65 ; Doe v. Reagan, 5
Blackf. 217 ; Potts v. House, 6 Ga.
324; Dicker v. Johnson, 7 Ga. 484;
Walker v. Walker, 14 Ga. 242 ; John-
son V. State, 17 Ala. 618 ; Farrell v.
Brennan, 32 Mo. 328 ; State v. Coleman,
27 La. Ann. 691.

235

§ 262.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

in such cases, are symptoms of a particular class the marks of
an unsound mind ?" And this is admissible.^ On the other
hand, it is inadmissible to ask a non-expert such questions, for
the reason that he has no experience in treating such diseases
as a class.^ And the prevalent opinion is that even an expert,
while he may be asked as to a hypothetical case, cannot be asked
his opinion on the facts put in evidence in a particular case, as this
would put him in the place of the jury, and commit to him the
determining not merely the meaning, but the credibility of the
testimony .3

Sub rib ^ 2Q0. Subscribing witnesses to wills may, even on

ing wituess the strictest rule, be always permitted to answer as to
as to sanity the testator's sanity.^

Non- § 261. It is conceded, even by the courts most

missibie as rigorous in limiting such testimony, that any witness,

ne^s""^^'^" layman or expert, unskilled or skilled, may testify as

to the fact of intoxication.^

§ 262. Experts in mental science, and in the treatment of the

1 Dexter v. Hall, 15 Wall. 9 ; U. S.
V. McGlue, 1 Curtis, 1 ; Sills v. Brown,
9 C. & P. 604 ; Spear v. Richardson, 37
N. H. 23 ; Fairchild v. Bascomb, 35 Vt.
398 ; Hathaway v. Ins. Co., 48 Vt. 335 ;
Com. V. Rogers, 7 Met. 500 ; Com. v.
Rich, 14 Gray, 335 ; Hoard v. Peck, 56
Barb. 502 ; Harnett v. Garvey, 66 N. Y.
641 ; Negro Jerry v. Townshend, 9 Md.
145 ; Choice v. State, 31 Ga. 424 ; Davis
V. State, 35 Ind. 496 ; Bishop v. Spin-
ing, 38 Ind. 143 ; Wright v. Hardy, 22
Wis. 348 ; Wilkinson v. Moseley, 30
Ala. 562 ; and cases cited in Wli. on
Ev. § 452.

2 Com. V. Rich, 14 Gray, 335 ; State
V. Klinger, 46 Mo. 228 ; Caleb v. State,
39 Miss. 722 ; Russell v. State, 53 Miss.
368.

3 R. V. Higginson, 1 C. & K. 129 ;
Sills V. Brown, 9 C. & P. 604 ; R. v.
Frances, 4 Cox C. C. 57 ; R. v. Rich-
ards, 1 F. & F. 87 ; Dexter v. Hall, 15

236

Wall. 9 ; Willey v. Portsmouth, 35 N.
H. 303 ; Perkins v. R. R., 44 N. H.
223 ; Woodbury v. Obear, 7 Gray, 467 ;
Miller v. Smith, 112 Mass. 475 ; Draper
V. Saxton, 118 Mass. 431 ; Brill v.
Flagler, 23 Wend. 354; People v.
McCann, 3 Parker C. R. 272 ; Reynolds
V. Robinson, 64 N. Y. 589 ; State v.
Powell, 2 Halst. 244 ; Kempsey v. Mc-
Ginnis, 21 Mich. 123 ; Bishop v. Spin-
ing, 38 Ind. 143 ; Phillips v. Starr, 26
Iowa, 349 ; Butler v. Ins. Co., 45 Iowa,
93 ; State v. Medlicott, 9 Kans. 257 ;
Choice V. State, 31 Ga. 424. But see
Getchell v. Hill, 21 Minn. 464.

1 Chase v. Lincoln, 3 Mass. 236 ;
Poole V, Richardson, ib. 330 ; Buck-
minster V. Perry, 4 Mass. 593 ; Need-
ham V. Ide, 5 Pick. 510 ; Castner v.
Sliker, 33 N. J. L. 95, 507.

5 State V. Pike, 49 N. H. 399 ; Gaha-
gan V. R. R., 1 Allen, 187 ; People v.
Eastwood, 14 N. Y. 562.

EVIDENCE.

[§ 268.

insane, as well as in all other sciences and professions, Experts ad-

TTl 1 P fii 1)1 ft 3iS

are admissible to testify as specialists in their particular specialists.
line.^

& 263. "When required to give time and labor to the Areenti-
, . , . „ . . , , 1 ... tied to spe-

elucidation of questions on trial, the better opinion is ciai fees.

that experts should be "entitled to special fees.^

§ 264. An expert cannot be examined as to a matter Cannot be

„ 111 • 1 • 1 • !• examined

01 common knowledge concerning which a juror may lorm as to matter

an independent opinion, nor as to a matter of mere men- ^^o^ie^g"

tal or moral philosophy or of domestic jurisprudence.^

§ 265. Whether a matter belongs distinctively to an ^^^^g^'^^g.

expert is for the determination of the court trying the longs to ex-
pert is for
case.'*

§ 266. An expert may be examined as to scientific
authorities for the purpose either of sustaining or assail-
ing his conclusions.^

§ 267. An expert may be examined as to a hypothet-
ical case f and it has also been held that, when the facts

court.
May be
examined
as to scien-
tific author-
ities.

May be ex-
amined as

are undisputed, he may be asked as to their bearing on theticai
sanity. But he cannot, in any case where the meaning ^ot'^as'to
and bearing of the facts are disputed, be examined as to disputed
his opinion as to such facts.^

§ 268. Here emerges a new difficulty in this vexed issue.
" Experts" are to have a certain degree of credit at-
tached to their testimony, but who are " experts ?"
Forensic-psychological medicine is the specialty ; and an
expert in this specialty must be skilled in three depart-
ments of science : (1), law, sufficient to determine what
is the "responsibility" which is to be the object of the contested
capacity ; (2) psychology, so as to be able to speak analytically as
to the properties of the human mind ; (3) medicine, so far as con-
cerns the treatment of the insane, so as to speak inductively on the
same subject. If either of these factors is wanting, a witness can-
not be technically an expert. But while, on strict principles, these

Difficulty
in deter-
mining
who are ex-
perts as to
insanity.

> Wh. on Ev. § 434.
2 Ibid. § 380.
8 Ibid. § 436.
* Ibid. § 437.

6 Ibid. § 438.
6 Ibid. § 452.
? Ibid. ; supra, § 259.

237

§ 270.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

tests should be applied, the courts have relaxed first one and then
another limitation until the prevalent opinion now is that all per-
sons who have made mental disease a practical study, or who have
been employed in the professional care of the insane, are to be
regarded as experts in insanity.

§ 269. It has been frequently said, as will hereafter be seen,
J, ^ that neither " quacks" nor mere speculative theorists are
cienttestof admissible as experts. But who are " quacks ?" Are

capacity. . . ^ • t

practitioners oi new, and what may at the time be pro-
fessionally viewed as heretical, schools, " quacks ?" This would
have disqualified both Willis and Esquirol, each of whom was for a
time viewed as a quack by the body of conservative practitioners.
Is the adherer of a system which, though venerable and supported
by high past authority, is now regarded as exploded ? Would a
homoeopathic physician be an expert in materia medicaf Would
one of Bishop Berkeley's disciples be an expert as to the value of
tar-water ? Is even a psychological physician of eminence an expert
as to matters exclusively speculative or ethical The latter question
was properly negatived in 1869, in the court of appeals of Kentucky,
by Chief Justice Williams, who said, that "the opinions of experts,
not founded on science, but on a mere theory of morals or ethics?
whether given by professional or unprofessional men, are wholly
inadmissible as evidence. Hence the opinion of even physicians,
that no sane man in a Christian country would commit suicide, not
being founded on the science or phenomena of the mind, but rather
a theory of morals, religion, and future responsibility, is not evi-
dence."^ And such is undoubtedly the law.

§ 270. The respect which was once paid to the testimony of ex-
perts, and which was recorded in former editions of this
to%e"ciose- work, has of late years greatly diminished.^
^^ize^™*^' Thus Chief Justice Chapman, of Massachusetts, on the

trial of Andrews, in 1868, ^ said, " I think the opinions
of experts are not so highly regarded now as they formerly were,
for, while they afford great aid in determining facts, it often hap-
pens that experts can be found to testify to any theory, however

» Ins. Co. V. Graves, 6 Bush (Ky.), « See Wh. on Ev. § 722.
290. 3 Pamph. R. p. 356.

238

EVIDENCE. [§ 270.

absurd." And Judge Davis, of the supreme court of Maine,' went
so far as to say, " If there is any kind of testimony that is not
only of no value, but even worse than that, it is, in my judgment,
that of medical experts. They may be able to state the diagnosis
of a disease more learnedly ; but upon the question, whether it had,
at a given time, reached such a stage that the subject of it was
incapable of making a contract, or irresponsible for his acts, the
opinion of his neighbors, if men of good common sense, would be
worth more than that of all the experts in the country." And
Judge Redfield, in commenting on this case, says, that there seems
to be " but one opinion as to the fact that this kind of testimony is
extremely unsatisfactory. , . . We are more and more con-
firmed in an opinion that the difficulty comes largely from the man-
ner in which the witnesses are selected. ... If the state, or
the courts, do not esteem the matter of sufficient importance to jus-
tify the appointment of public officers, . . . it is certain the
parties must employ their OAvn agents to do it ; and it is perhaps
almost equally certain, that if it be done in this mode it will pro-
duce two trained bands of witnesses, in battle array against each
other, since neither party is bound to produce, or will be likely to
produce, those as their witnesses who will not confirm their views."

So also an eminent federal judge. Judge Woodruif, said to a jury
in 1871, that, " where the opinion (of experts) is speculative,
theoretical, and states only the belief of the witness, while yet some
other opinion is consistent with the facts stated, it is entitled to but
little weight in the minds of the jury. Testimony of experts of this
latter description, and especially where the speculative and theoret-
ical character of the testimony is illustrated by opinions of experts
on both sides of the question, is justly the subject of remark, and
has been often condemned by judges as of slight value. And like
observations apply to a greater or less degree to the opinions of
witnesses who are employed for a purpose and paid for their ser-
vices ; who are brought to testify as witnesses for their employers.

. . This condemnation is not always applicable ; often it
would be unjust. Where an expert of integrity and skill states
conclusions which are the necessary or even the usual results of

' Neal's case, cited 1 Redfield on Wills, *101, and see furtlier cases cited Wh..
on Ev. § 454.

239

§ 273.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

the facts upon which his opinion is based, the evidence should not
be lightly esteemed or hastily discredited."^

§271. Or, to put the point in other language : There is no theory
Difficulty ^^ absurd but that it has found some philosopher by
induced by whom it is maintained. " Nihil tam absurde dici potest,

speculative . it • n

tendencies quod non dicatur ab aliquo philosophorum. ^ Hence
exper s. ^Yiere is no theory so absurd that, on a trial, some
unique philosopher may not be secured to testify that he believes
it. Of this we have had a number of illustrations in the preceding
pages.^ Experts have been found to testify that no sane person
commits suicide, and that all suicides are insane ; that all men are
more or less insane ; that certain propensities or faculties can be-
come insane by themselves, and when insane are irresistible ; that
very bad people, and especially old convicts, are, as a rule, insane ;
and that certain signs, which signs the great body of the profession
regarded as indifferent, are sure marks that insanity has set in.
There is, in fact, no psychological defence, no matter how whimsical,
that has not been based on the speculations of isolated experts, and
that has not found some isolated experts to swear to it on trial.
§ 272. Another difficulty is that experts are now employed sys-
tematically and specially feed by the parties calling
the fact them. They are as much counsel in their specialty as
i^^L^o^'o the solicitors and barristers in a case are counsel in mat-

perts are

feed by . ters of law. When thus employed, they lose all judicial
authority. It is impossible but that they must take a
strong bias from the party calling them ; and even were this not
the case, the policy of the law forbids that a person receiving the
special fee from a party should have any other authority in a case
beyond that to which he is entitled on the principles of sound logic.
If there is reason to believe what he says, he should be believed.
But he should not be believed because he is an expert.*

§ 273. That the sober practical thought of the great body of
And so be alienists rejects such extravagances cannot be ques-
cause there tioned ; but how are the views of this great body to be

IS no ex- ' o ti

pert appei- ascertained ? Of course it is easy for a party to summon

1q+p court A •'

the single expert who may happen to have propounded

> Woodruff, J., Gay v. Ins. Co., 9 3 See supra, §§ 190-195. On this

Blatch. 142 ; 2 Big. Ins. Rep. 14. topic see more fully Wh, on Ev. § 454.

2 Cicero, De Divinatione, ii, 58. * Wh. on Ev. §§454, 722. Supra, § 33.

240

EVIDENCE. [§ 273.

the bizarre theory which is necessary to sustain such party's case.
But how is such expert to be contradicted ? How is it to be shown
that the whole sense of his profession is against him, and that he is
himself laboring under one of those delusions to which, as has been
seen, men of science are as liable as are men of other professions
or modes of training ? It is impossible to summon the whole pro-
fession to prove this. It is inadmissible for one to testify as to the
opinions of others. There is no supreme court among experts by
which conflicting views can be reconciled and an authoritative judg-
ment pronounced. There is no power by which the testifying
expert, who assumes a semi-judicial post, can be made to accept
judicial responsibilities ; can be made to hear counsel to instruct
him on both sides of each contested point of psychology ; can be
made to feel that he is bound to testify to the views of his whole
profession. Hence, when the trial comes on, the expert who is
selected because he holds views which the great body of his pro-
fession rejects, testifies often alone, or with but slight and inade-
quate correction.^ From this have arisen those outrages on public
justice which eminent medical authorities have been among the
first to deplore. 2 Hence it is that high medical authority has called
for the abandonment of the present system of " voluntary" experts,
and the establishment of a government board, as is the case in Ger-
many .^ Hence, also, after one conspicuous instance of failure of

' See supra, §§ 190-195. verfahren," in " Arcliiv fiir Preussis-

2 See Lettsomian Lectures on In- ches Strafrecht," Berlin, 1853. See

sanity, by Forbes Winslow, M.D., also Regnault's elaborate disquisition,

D.C.L., late President of the Medical " Du degre de competence des Medecins

Society of London, etc. London : John dans les questions judicaires relatives

Churchill, New Burlington Street, atix alienations mentales," etc., Paris,

Medical Testimony and Evidence in 1828.

Cases of Lunacy, being the Croonian ^ d^^ Reese, Professor of Medical

Lectures delivered before the Royal Jurisprudence and Toxicology in the

College of Physicians, in 1853, with an University of Pennsylvania, in an ar-

essay on the conditions of mental tide in the American Journal of the

soundness, by Thomas Mayo, M.D., Medical Sciences for April, 1872, ani-

F.R.S. London: John W. Parker & madverts with great justice "on the

Son, West Strand, 1854. Marc, Die impropriety of conducting a post-mor-

Geisteskrankheiten, in Beziehung auf tem examination, when there is a sus-

die Rechtspflege, i. p. 8. And see also picion of death by poison, and where

particularly Mittermaier's very inter- the reputation and even the life of a

esting essay, " Die Stellung und Wirk- fellow being is involved, without the

samkeit der Sachverstandigen in Straf- presence and oversight of the legally

VOL. I.— 16 241

§ 274.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

justice from this cause — that in the case of Mr. Windham, in 1866 —

the feeling was so strong of the mischief done by crowding cases

with incompetent or extravagant experts to the exclusion of the

sober and authoritative, that the lord chancellor proposed in the

house of lords, though without pressing the proposition to a vote,

to exclude such testimony altogether in commissions of lunacy,

except so far as it is based on facts within the personal knowledge

of the witness.

§ 274. In many parts of Germany the practice obtains of requir-

Experts ^"^ ^^^ medical faculty of each judicial district to ap-

shouid be point a Special committee to whom questions of this char-
assessors. . . -^ .

acter are referred. This committee is examined directly

by the court, and gives testimony somewhat in the same way, and

with the same eifect, as would a common law court when reporting

its judgment in a feigned issue from chancery, or as would assessors

constituted aiitliority — the coroner. It
must be evident," he continues, "to
every observer, that the whole exami-
nation, in the present case (that of
Mrs. E. G. Wharton) was in the hands
of those who were not entirely devoid
of prejudice. The first autopsy is made
by Drs. Williams, Miles, and Chew,
within twenty hours after death — the
strong suspicion of poison influencing
the minds of these gentlemen. Two
weeks later, the body is exhumed and
again examined, exclusively by these
same persons. There is no represen-
tative or friend of the accused party
invited to be present. Surely, this was
not in accordance with justice or pro-
priety. Were it not that the profes-
sional and social character of the parties
concerned places them above suspicion,
there might certainly be very grave
reason for taking exception to such ex
parte proceedings ; for there might be
just cause for doubt in regard to the
absolute identity of the material ope-
rated upon. But still more glaring
was the departure from propriety,
when the body was the second time dis-
interred, and that, too, during the

242

actual progress of the trial. . . .
Certainly, none of the counsel for the
defence was aware of it, until Dr. Wil-
liams one morning (during the trial)
gave the unexpected detail to the
court, and informed them that the new
chemist, to whom the analysis of the
viscera had been committed, was now
ready to give a partial exhibition of
his results.

" Now it seems to us that this pro-
cedure on the part of the State was
unfair to the accused, to her counsel,
and to the cause of juctice. We deem
it contrary to all precedents in criminal
jurisprudence, to take such an imfair
advantage of the accused. MHiy icas
not her counsel informed of this intention
of the prosecution, so that at least one of
the experts for the defence might have been
present at the exhumation of the body and
the subsequent analysis, and thus give at
least the appearance of fairness to the pro-
cedure ? We venture to assert, without
fear of contradiction, that such an ex
parte proceeding would never have been
permitted in any country in Europe ;
and will never again be allowed, it is
hoped, in our own country."

EVIDENCE. ^ [§ 275.

called upon under the canon law to state, in proceedings under the
law, what is the secular law of the land on the pending question.
In the United States, as in England, the practice has grown up, as
has been seen, of permitting each party to call such experts as he
may think most likely to further his views. This practice neces-
sarily produces collision of opinion, which greatly embarrasses court
and jury, and has, as has been stated, more than any other
cause, tended to Aveaken what should be in such cases the due in-
fluence of medical science. Take, as an illustration, the question
of the existence of " moral insanity" as a distinct and substantive
defence, supposed to exist independently of any lesion of the mind.
The existence of such a phase of insanity is affirmed, as is seen, by
one school of experts, and is denied by another school. The defen-
dant calls, in a case where the defence of moral insanity is set up,
experts of the first school. The prosecutor, in reply, calls experts of
the second school. The two classes of experts flatly contradict each
other as to the very possibility of the existence of such a defence.
The judge, under such circumstances, puts the whole testimony
aside, as relating to a question as to which medical science has no
distinct rendition. The jury either follow the court, or are governed
by some side issue. Of course, under our existing system, the con-
flict, as such, cannot be avoided. But it would be greatly lessened
if the prosecution, when its proceedings are penal and conducted by
the state, should, when the plea of insanity is interposed, call emi-
nent and experienced psychological physicians, not as representa-
tives of particular schools, but as assessors, to state what, in the
pending issue, is the general view of medical science as applied to
the defendant's case. In those states where the plea of insanity
has to be determined as a distinct preliminary issue, this can be
readily done at the outset. When, however, the practice is to per-
mit the defendant to introduce insanity under the general plea of
not guilty, then the prosecution may take this course in rebuttal.
And in all cases, experts, by whomsoever called, should recollect
that they are required, when asked as to the existence of any par-
ticular disease or symptom, to state not simply their own personal
view, but the general sense of the profession to which they belong.
§ 275. It has already been stated that the opinions of experts,
on conclusions of law, are inadmissible ; and it has been further no-
ticed that experts are not entitled to testify as such to matters not

243

§ 276.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

Their testi- distinctively within the range of their specialty.^ In this
should not view, high medical authorities concur. Thus, Dr. Liman,
be ^specula- j^ j^-^ ^^-^-^^ ^^ g^g^^^ (Berlin, 1871), thus speaks:

" The history of art^ is rich in individual eccentrici-
ties ; and the heroes of art exhibit in the chronology of their works
transitions in which it is hard to determine the point where the
luxurious liberty of genius passed into fantastic eccentricity." He
mentions the case of Beethoven, whose later works it puzzles the
most enthusiastic disciple to reconcile with sane art ; and the same
observation applies to Turner, some of whose later paintings may be
assigned, according to the stand-point of the critic, either to great
gifts demoralized by insane self-will, or to the same great gifts
elevated by genius to the last stage of transfiguration. To
similar mental tendencies may be traced, according to Dr. Liman, a
large part of the speculative aberrations of those who have theor-
ized on the operations of the mind. No theorist, for instance, was
more pure or honest than Bishop Berkeley, yet Bishop Berkeley
declared it to be indisputably proved that all objective life is a
dream. So we may rank the hypothesis of one class of psycholo-
gical physicians that every body is more or less insane, and that of
another, that all insane persons are responsible ; and so, also, the
various extravagant theories of monomania to be hereafter noticed.
After all, it should never be forgotten that an abstract opinion as
to insanity is of little value. Insanity, it is admitted on all sides,
is incapable of definition ; and to declare a person insane, therefore,
is to attach to him a predicate which cannot be defined. So, also,
it must be remembered that there are some admitted cases of in-
sanity (e. g. " partial" insanity, or collateral monomania) which
destroy neither testamentary capacity nor criminal responsibility,
when the act is not the product of the particular insane delusion.
Hence the real issue is, not was the party insane, but what was his
condition of mind as to a particular act.

§ 276. Special and ex parte interviews, it must be remembered,

are very unsatisfactory and inadequate tests. Few per-
sons sons with capacity enough to commit crime are wanting
thoroueh ^'^ capacity to feign insanity for short periods upon due

notice given. Hence it is that experimental visits by

» Wh. on Ev. §§ 440, 505. « Page 394.

244

EVIDENCE. [§ 278.

experts to prisoners are so unsatisfactory ; and hence, also, we may
understand the slight influence on court and jury exercised in the
trials of Watson and Edmunds in January, 1872, by the testimony
of eminent medical gentlemen that they had had several inter-
views with the prisoners, and that the prisoners did not seem to have
been fully conscious of the nature and moral character of their
oflence.^ It would be strange if intelligent persons, such as these
were, advised by able counsel, should have been ignorant, that, if
they should establish an unconsciousness on their part as to the
moral nature of their offence, they would make out a legal defence ;
and it would be still stranger if a man whose life is at stake should
not at once seize upon so simple a mode of escape. Prison inter-
views, in fact, are peculiarly imperfect tests : jirst^ because there
is there little possibility of observing the prisoner in unrestrained
intercourse with others ; and, secondly, because the observer can-
not, as he could in an asylum or in places where his authority
is supreme, exercise any such control over the parties as will
enable him to apply adequate tests. Hence it is that an expert
should hesitate long before he expresses on oath an opinion based
on such interviews.^

§ 277. Nor is the danger of deception solely on one side. Sane
men may skilfully feign lunacy, but sometimes lunatics
have been equally skilful in feigning themselves to be tws^s pe-*^^
sane. Cases have not been rare in which lunatics, while cuiiariy

requisite.

hugging as they would an idol their insane delusions to
their secret heart, have baffled the most experienced examiners for
hours. The lunatic who, in a well-known case, succeeded, by sane
answers, in defying even Erskine's consummate ability, would no
doubt, had the humor seized him, been equally successful in pre-
venting examining physicians from discovering his true state in a
prison interview.

§ 278. But eminently are caution and thorough acquaintance
with the patient's antecedents necessary when the ques- p . , .
tion of motive is involved. Motivelessness, as will here- tory of
after be seen,' is often a prime characteristic of an insane should be
act ; and psychological physicians have been accustomed,

' See supra, §§ 117-120. Infra, § 399.

2 See, as to feigned insanity, infra,
§§ 443-460.

245

understood

§ 279.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

with great propriety, to give the motivelessness of an act as one of
the chief reasons for the insanity of an actor. But who, without
thorough knowledge of the human heart, and without a specific and
accurate acquaintance with the patient's character and antecedents,
can declare any one of his acts motiveless ? What may be a
powerful motive to one person, may be no motive at all to another.
Jealousy, for instance, is a motive of tremendous force, yet to detect
jealousy on the one side, or to negative it on the other, requires a
thorough knowledge of the party's temper and antecedents. The
same remark applies to acts done to Avard off from self the conse-
quences of some secret wrong. In the case of Christiana Edmunds,
for instance, in Avhich one of the chief points of the defence was the
motivelessness of the act, there was reason to assume that she had
indulged in an illicit attachment to her family physician ; that she
had been suspected of poisoning his wife with chocolate ; that to
divert this suspicion she caused poison to be introduced into the
chocolate-drops of a confectioner in the same town, which drops
caused the death of a child ; and that she endeavored, by anony-
mous letters and other means, to produce the impression that the
confectioner in question sold poisoned sweets. Here was a powerful,
but at the same time subtle, motive ; a motive the same in character
as that which impelled Dr. Webster to throw suspicion by anony-
mous letters on innocent parties of agency in Dr. Parkman's death ;
but a motive which, in Edmunds's case, was so secret in its origin
and so tortuous in its working, and which was so intensified on her
part by jealousy and infatuated love, that it required a full knowl-
edge of her life and history to lay it bare. No psychological
examiner, therefore, can justly pronounce on the motivelessness of
an act without such explanation. Yet it is here that is the very
gist of the defence. If a homicide is deliberately committed under
the influence of jealousy, or revenge, or a desire to screen self, it
is in the eye of the law murder. Supposing that there are at the
time no insane delusions ; supposing that there is a knowledge that
the act is wrong; then neither weakness of mind, nor infatuation of
passion, constitutes a defence.

III. BOOKS.

Scientific ^ 279. The prevailing opinion is not only that scien-

missibie. tific books (not consisting of mere calculations) are not
246

EVIDENCE. [§ 279.

admissible in evidence on litigated issues, but that they cannot be
read by counsel to the jury as part of an argument.^ But an expert
may be examined as to how far standard works sustain or conflict
with his opinion.

[The hiatus between § 279 and § 303 in this edition is intentional,
arising from condensation.]

1 Wh. on Ev. § 665.

247

BOOK II.

MENTAL UNSOUNDNESS CONSIDERED
PSYCHOLOGICALLY.

CHAPTER I.

GENERAL THEORIES.

I. Preliminary Observations.

The mind now treated as a unit, § 305.

Phenomena of mind divided into three
classes by Kant and Sir W. Hamil-
ton, § 306.

This classification adopted by Bain, §
307.

These functions not capable of distinct
insanities, § 308.

So held by later psychologists, § 309.

Classification of experts in Paris, 1867,
§ 310.

Dr. Maudsley, § 311,

Dr. Hammond, § 312.

Analysis of Casper and Liman, § 313.

Of Dr. Ray, § 314.

Of Flemming, § 315.

Of Ellinger, § 316.

Three prominent theories as to cause
of insanity, § 318.

II. Psychical Theory.

The soul the origin of the disease, §
319.

III. Somatic Theory.

Disturbance of the soul produced by

bodily abnormities, § 320.
No lesion of the brain due to insanity,

§321.
Insanity does not always produce

organic cerebral change, § 322.

No correspondence between exterior of
skull and sanity, § 323.

Contiict on subject illustrated by apha-
sia, § 324.

This said to be of physical origin, §
325.

Objections to this view, § 326.

Materialistic hypothesis would avoid
personal responsibility, § 327.

Though it is claimed not to affect
future responsibility, § 328.

IV. Intermediate Theory.
1. Its basis.

Body and soul alike the origin of dis-
ease, § 329.

Psychological theory too great a reac-
tion from the somatic, § 330.

Sound psychologists tend to interme-
diate theory, § 331.

This theory not rejected by standard
theologians, § 332.

The incorporeality of the soul not a
canon of faith, § 333.

Mind and matter united in our nature,
§334.

And react upon each other, § 335.
2. Its effect on responsihilitij .

Intermediate theory relieves doctrine
of responsibility of many difficulties,
§ 336.

Question of penal discipline, how deter-
mined, § 337.

249

§ 306.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.
I. PRELIMINARY OBSERVATIONS.^

§ 305. The difficulties that have attended the classification of
insanity have proceeded from two causes. The first is,
now treat- ^^® confusion of nomenclature, the same terms being used
edasa to describe, according to the stand-point of the observer,

very distinct phenomena. The second is, the treatment
of a symptom as if it were a distinct, substantive disease; and the
consequent resolution of the mind into a series of distinct, inde-
pendent factors, one of which may be assumed to be insane, while
the others remain sane. It is the latter tendency, in fact, that has,
more than all other causes, tended to lower the authority of psy-
chology with the courts.

But the weight of present psychological opinion is to discard this
process of disintegration, and to treat the mind as a unit, which,
when diseased, however distinctively the disease may manifest
itself, is diseased as a whole. This, in fact, is a necessary sequence
of the view of the mind as an entirety which modern psychologists
of all schools unite in maintaining. Assuming "mind" and "soul"
to have in this view the same sense, and to represent the individual
ego^ we must view the various functions or factors — e. g. memory,
perception, moral sense, will — not as so many distinct minds, but
as parts or manifestations of one mind.

§ 306. Sir William Hamilton^ thus reviews the literature of the
Pheno- topic as it existed at the time of the preparation of his

mind di- Icctures. " The division of the i^^t'enomena of the mind
v^ded into j^^^ ^.j^g three great classes of the cognitive faculties,

' In order to avoid redundancy of and Civil Capacity, by Kraflft Ebing,
citation, ttie following works may be 1874; La Folie Hereditaire, Dr. Legrand
here referred to as bearing on the du Saulle, Paris, 1873 ; Etude Medico-
general subject : Responsibility in Legale sur 1' Interdiction des Alienes,
Mental Disease, by Dr. Henry Mauds- etc., Paris, 1880 ; Sur les Testa-
ley, M.D., N. Y. 1874; Insanity in ments ContestSs pour la Cause de
Ancient and Modern Life, Dr. Hack Folie, id. 1879 ; Jurisprudence M^dico-
Tuke, London, 1878; Nature, etc., of Legale, id. 1874, all by the same au-
Insanity, Dr. Davey, Lond. 1858 ; The thor ; The Morrisonian Lectures for
Factors of the Unsound Mind, William 1873, by Drs. Skae and Coulston, 19
A. Guy, M.D., F.R.S., Lond. ; Lectures Journ. Ment. Sci. 355, 491 ; 20 id. 1, 200.
on Mental Disease, W. H. 0. Sankey, Maschka's Gericht. Med. Tubingen,
M.D., Lond. ; Personal Responsibility 1882.

of the Insane, James F. Duncan, M.D., * Lectures on Metaphysics, Gould &

Lond., 1877; Criminal Responsibility Lincoln, p. 129.

250

GENERAL THEORIES. [§ 307.

the feelings or capacities of pleasure and pain, and the classes by

T 1 , • • Kant and

exertive or conative powers — 1 do not propose as origi- sir w.
nal. It was first promulgated by Kant ; and the feli- Hamilton,
city of the distribution was so apparent, that it has been long all
but universally adopted in Germany by the philosophers of every
school ; and, what is curious, the only philosopher of any eminence
by whom it has been assailed — indeed, the only philosopher of
any reputation by whom it has been, in that country, rejected
(Krug) — is not an opponent of Kantian philosophy, but one of
its most zealous champions. To the psychologists of this country
it is apparently wholly unknown. They still adhere to the old
scholastic division into powers of the understanding and powers
of the will ; or, as it is otherwise expressed, into intellectual and
active powers." It should be observed, however, that between
the old English and Scotch psychologists and Kant, there is no
diflFerence, so far as concerns the question before us — the unity
and entirety of the mind. They differ in the enumeration of the
functions ; they agree as to the unity of the substance. Accord-
ing to the older psychologists, the mind acts in two main ways ;
according to Kant and Hamilton, in three. But by neither are
these functions severable from the mind. If either is diseased,
the mind itself is diseased. If the mind is not diseased, its phe-
nomena, either jointly or singly, are not diseased.^

§ 307. Mr. Bain^ adopts substantially the classification of Sir
W. Hamilton and Kant. " The only account of mind,"
he says, "strictly admissible in scientific psychology con- ciassifica-
sists in specifying three propei-ties or functions — feeling, ed* by^Bain.
will or volition, and thought or intellect — through which
all our experience, as well objective as subjective, is built up. This
positive enumeration is what must stand for a definition. "^ . . .
^^Thoicght, intellect, intelligence, or cognition includes the powers
known as perception, memory, conception, abstraction, reason, judg-
ment, and imagination. It is analyzed, as will be seen, into three

' Reid, indeed, makes four apparent which thinks, remembers, reasons,
groups, but he is clear in stating that ■wills."

these are but the modes of action of the * Mental and Moral Science, London,
one mind. " By the mind of a man," 1868.

he says, "we understand that iu him ^ For this passage in full, see infra,

§ 533.

251

§ 308.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOaiCALLY.

functions, called discrimination, or consciousness of difference, simi-
larity or consciousness of agreement, and retentiveness or memory.
The mind can seldom operate exclusively in any one of these three
modes. A feeling is apt to be accompanied more or less by will or
thought. When we are pleased, our will is moved for continuance
or increase of the pleasure (will) ; we at the same time discrimi-
nate and identify the pleasure, and have it impressed on the memory
(thought.)" In this view of the interdependence of these functions
Sir W. Hamilton emphatically concurs.

§ 308. If, it may in addition be remarked, we can conceive of
distinct insanities (the mind as such remaining sane) of

These func- . -. , . . to /

tions not either of the three main functions above stated ; so we
distinct in- Hiust concoive of distiuct insanities of such subordinate
sanities. functions (the mind as such still continuing sane) as these
functions in chief may comprise. Thus we will, hear of insane per-
ception, insane memory, insane discrimination, etc., the mind still
being supposed to be unimpaired. In fact there would be as many
insanities as there are modes of mental thinking, feeling, and
willing.^

That, however, such derangements are not distinct, independent
diseases, is shown by the fact, hereafter abundantly noticed, that
they occur sometimes alternately, sometimes successively, when
there is true mental disease. The disease may flit, as does neu-
ralgia, capriciously from function to function. Or, as is more
usually the case, it may begin with a derangement of the per-
ceptive powers, producing illusions and hallucinations, and end with
a torpid prostration of these powers, producing senile dementia. It
may, and frequently does, run through the stages of epilepsy, of
illusion, of perverted domestic affections, of mania for killing, steal-
ing, or burning, of general frenzy, and at last of exhausted dementia
and fatuity. The difficulty that exists has arisen from the occa-
sional treatment by experts of these floating symptoms of one
disease as if they were independent diseases. There is but one
mind to each of us, though this mind has many functions. There
can be but one disease to which psychologically the term insanity
may be applied, though this disease minifests itself, even in one and
the same patient, in various ways.^

' See infra, § 533 et seq, * See fully infra, § 533 et seq,

252

GENEKAL THEORIES. [§ 310.

§ 309. It is scarcely necessary to pause now to show how gene-
rally this view has been accepted by recent medical
psychologists.^ What MoreP says, " il n'y a pas qu'une later psy-
folie, mais diverses vari^t^s de cette affection," is of *^ ° ^^^^ ^'
primary importance when analysis begins. There is not a series of
independent insanities ; there is but one insanity exhibiting itself
in various phases. Nor can we refuse to recognize the good sense
with which Dr. Neumann^ declares that all classification of insanity
has proved to be artificial and, therefore, unsatisfactory ; and that
no true progress in this science can be credited, until all classifica-
tion is thrown overboard, and there is recognized but one generic
type of mental disturbance ; and further, that " true medical diag-
nosis does not need these artificial divisions, and for forensic psy-
chology they have been pernicious. The tendency of alienists to
confuse or confound the judge by technical nomenclature (mono-
mania, pyromania, etc.), instead of by psychological analysis eluci-
dating the concrete case, springs from a merely artificial systemati-
zation, and judicial j^sychology will for the first time assume its
proper place at the forum when it is emancipated from the fetters
of the schools." These views Dr. Liman entirely adopts.'* " Mental
health," he tells us, " is the antithesis of mental disease ; and the
sole duty imposed upon us is the exposition and development of the
concrete individual case as such, which is now so easily lost sight
of in the division of mental disease into numberless species and
varieties."^

§ 310. Eemembering, therefore, that the different forms of in-
sanity described by psychologists are but phases of one disease,
it may be of value to notice some of the modes in which these
forms have been classified.^

One of the most authoritative of these classifications is ciassiflca-
that reported by an international congress of psycholo- pe,ts in
gical experts assembled in Paris in 1867.^ It is as Paris, 1S67.
follows : —

1 See more fully infra, §§ 567-572. ^ gee more fully infra, § 567, aud

2 Traite de la Med. Leg., Paris, 1866, also supra, §§ 163-189.

§ iv. s See, for Dr. Buckinel's classifica-

3 Lehrbucli der Psychiatrie, Erlan- tion, 19 Jourii. Ment. Sci. 574.

gen, 1859, pp. 167-237. '' Hammond, Diseases of Nervous

« Liman's Casper, 1871, p. 550. System, N. Y., 1871, p. 337.

253

§ 311.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

I. Simple insanity, embracing mania, melancholia, and monomania (thus

negativing the claims of monomania to be considered a distinct dis-
ease), floating insanity, moral insanity (whose independent existence
is also thus negatived), and dementia consequent on the above types.
II. Epileptic insanity.

III. Paralytic insanity, which is treated as a distinct disease.

IV. Senile dementia.

V. Organic dementia, which is that supposed to arise from some cerebral lesion.
VI. Idiocy.
VII. Cretinism.

This analysis, however it may serve as a convenient enumeration,
is destitute of logical value. It applies exclusively neither the
test of causation, nor of symptom, nor order of development, but
is purely arbitrary, in making, in the first head, symptom the test,
and then grouping together symptoms the most incongruous ; rest-
ing the second, third, fourth, and fifth heads on superinduced
physical causes, and the sixth and seventh on causes which are
congenital.

Dr. Mauds- ^ 3;,^^^ jy^ Maudsley' adopts the following:—

I. Affective or pathetic insanity.

1. Maniacal perversion of the effective life. Mania sine delirio.

2. Melancholic depression without delusion. Simple melancholia.

3. Moral alienation proper. Approaching this, but not reaching the

degree of positive insanity, is the insane temperament.
II. Ideational insanity.

1. General.

a. Mania.

b. Melancholia, < '

i chronic.

2. Partial.

a. Monomania.

b. Melancholia.

3. Dementia, I P""^^^^'

I secondary.

4. General paralysis.

5. Imbecility.

As to this analysis, it is to be observed simply, that, if it makes
the " effective life," independent of the mind, capable of being
diseased when the mind is undiseased, it runs counter both to
psychological and to juridical science. If it does not make this
assumption, it is, as an analysis, insensible and illogical.

' Physiology and Pathology of the Mind, Loudon, 1867.

254

GENERAL THEORIES. [§ 314.

§ 312. Dr. Hammond gives the following, which, as a Dr. Ham-
classification of symptoms, is of much value : —

I. Perceptional insanity, "characterized by the tendency to the formation
of erroneous perception either from false impressions of real objects
(illusions) or from no external excitation whatever (hallucinations)."
II. Intellectual insanity, " characterized by the existence of delusions." Sub-
sequently it is said, as explanatory of this distinction, that "illusions
and hallucinations may exist, and the individual be perfectly sensible that
they are not realities. In such cases the intellect is not involved. But, if he
accepts his false perceptions as facts, his intellect participates, and he has de-
lusions. A delusion is, therefore, a false belief." The objection to this is
that the terms illusion and delusion are used convertibly by most psycho-
logists ; and that hallucination is not a symptom of insanity unless the
unreal image is not merely the creation of a diseased brain, but is
believed to be real.

III. Emotional insanity.

IV. Volitional insanity.
V. Mania.

VI. General paralysis.
VII. Idiocy and dementia.

§ 313. The analysis of Casper and Liman is both phi- Analysis of
losophical and simple. It is as follows : — Liman.

I. Insanity in its progress, including despondency, melancholy, excitation,
mania, as among the various forms in which this progress exhibits
itself.

II. Insanity in its results, including imbecility, dementia, and fatuity.

§ 314. "The various diseases included in the general term in-
sanity, or mental derangement," says Dr. Ray, "may
be conveniently arranged under two divisions, founded
on two very different conditions of the brain ; the first being a want
of its ordinary development, and the second, some lesion of its
structure subsequent to its development. In the former of these
divisions, we have idiocy and imbecility, differing from each other
only in degree. The various affections embraced in the latter
general division may be arranged under two subdivisions, mania
and dementia, distinguished by the contrast they present in the
energy and tone of the mental manifestations. Mania is charac-
terized by unnatural exaltation or depression of the faculties, and
may be confined to the intellectual or to the effective powers, or it
may involve them both, and these powers may be generally or par-
tially deranged. Dementia depends on a more or less complete
enfeeblement of the faculties, and may be consecutive to injury of

255

§ 315.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

the brain, to mania, or to some other disease ; or it may he con-
nected with the decay of old age. These divisions will be more
conveniently exhibited in the following tabular view : —

Idiocy.

Resulting from congenital defect.

Resulting from an obstacle to the

Defective

development of tbe faculties,

development

supervening in infancy.

of tlie

Imbecility.

Resulting from congenital defect.

faculties.

Resulting from an obstacle to tbe
development of tbe faculties,

supervening in infancy.

INSANITY.

i"™"^. {i.'^St

Lesion of tlie

Maxia.

faculties
subsequent ■

O. General.

'FECTIVE, -i o -n i.- i

' ^ 2. Partial.

to their
development.

Deiiextia.

Consecutive to mania, or injuries
of the brain.

Senile, peculiar to old age."'

§ 315. The following classification of Flemming,^ while less
simple, is very valuable both for the delicate precision
Of riem- q£ j^g analysis, and for the important aid it aSbrds to
the nomenclature of forensic psychology: —

I. INFIRMITAS. (Geistesschwacbe). Imbecility, the characteristic being the
diminution in psychical power.
1st. As to origin.

(1) Primaria seu congenita. (Syn. Idiotis7nus.) A defective de-

velopment perceptible either at birth or infancy.

(2) E morbo, arising from wounds on the head, brain or nervous

fevers, or epilepsy.

(3) Senilis, arising from decrease in vitality in the extreme

stages of old age.
2d. As to extent.

(1) Injirmitas adstricta. Limited imbecility, the characteristic
being diminution of particular organic powers.

(a) Dysmenia. Weakness of memory, the characteristic
being the feebleness of the reproductive power of
the perceptive faculty, and the symptoms, an
inability to remember things either recent or
remote, distinctly or at all.

' Ray on Insanity, 71.

256

2 Psychiatrisches Journal, Bd. I.
Hft. 1, p. 112.

GENERAL THEORIES. [§ 315.

(6) Injirmitas adstricta surdo-mutorum. Imbecility of the

deaf and dumb,
(c) Infirmitas adstricta ccecorinn. Imbecility of the blind.
(2) Injirmitas sparsa. General weakness of mind, the character-
istic being the absolute or relative weakness of all the
mental and moral functions, and the symptoms, obtuse-
ness and feebleness of the perceptive and attentive powers ;
feebleness of comprehension, of ratiocination, of imagina-
tion, of memory, in a variety of gradations.
II. VESANIA (Geistes verwirrung). Mental confusion, the characteristic being
a depravity (depravation) of the psychical powers arising from excess or
perversion.

1st. Vesania dysthymodes, or dysthymia, disorder of temperament, the
characteristic being the depravity (depravation) of the psychical
powers connected with an overpowering disturbance of the tem-
perament. Symptoms : an anomalous condition of the sensi-
bility, the mental tone, the inclinations, and the impulses. The
consequent deliria are the invariable eflfect of the dysthymia,
and depend upon the prevailing feeling or sentiment.

(1) Dysthymia transitoria seu subita. Sudden dysthymia, the

characteristic being the suddenness and rapidity of its
approach. Symptoms : irritability, proneness to agita-
tion, irascibility, excessive disgust, fear of death, ex-
treme timidity, despair of happiness. It occurs fre-
quently in the Stadium prodromorum of cerebral affections
and nervous fevers, or of epilepsy and the cognate com-
plaints ; and is sometimes, though more rarely, accom-
panied by the sudden suicidal impulse. It should be
observed that dysthymia remittens sinks in the remission
into the mere dysaethesis.

(2) Dysthymia adstricta, or partial dysthymia, the characteris-

tic being an anomalous condition of particular states of
feeling, inclinations, and impulses.

(a) Atra (the Melancholia Lypemonia of Esquirol), or
gloomy Dysthymia, the characteristic being sad-
ness, fear, dread, suspicion, malevolence, home-
sickness (nostalgia), and the wildness and ferocity
of the intoxicated. (Ferocitas et morositas ebrio-
sorum.)

(b) Dysthymia Candida, cheerful Dysthymia (Melan-
cholia hilaris, Chceromanie Chambeyron), the char-
acteristics being hilarity, recklessness of manner,
raillery, proneness to see all things in the most
vivacious light.

VOL. I.— 17 257

§ 315.] MENTAL UNSOUNDN'ESS CONSIDERED PSYCHOLOGICALLY.

(3) Dysthymia sparsa {apathica), general Dysthymia {Melan-
cholia Attonita). The characteristics being apparent
obtuseness, dull, lieavy reveries and abstractions,
prevalence of an indistinct sensation of discomfort,
apathy to all extraneous impressions.
2d. Vesania Annoetos, or Anoesia. Disturbance of the understanding.
The characteristics being the depravity (depravation) of the
psychical powers, ■with a controlling anomalousness of the intel-
lectual faculties. Symptoms, deliria of various kinds, with
manifestations of Dysthymia, which, however, are merely sub-
ordinate.

(1) Anoesia Transitoria, or Subita. Sudden Anoesia. The

characteristics being unexpected appearance and rapid
subsidence.

(a) Anoesia efebre. Febrile delirium.

(6) Anoesia e potu nimio {ebri etas). Drunkenness.

of mind,
(c?) Anoesia semisomnis. Confusion of mind in sleep.

Sleep-drunkenness.
(e) Anoesia Somnambula, or Spastica; Somnambulism.

(2) Anoesia continiia, chronic Anoesia.

(3) Anoesia remittens. Remittent Anoesia.

(4) Anoesia adstricta, partial Anoesia or Lunacy. The charac-

teristics being delirium in particular intellectual de-
partments.

(a) Anoesia ad sensationes. Hallucinations (deliria of
the senses). Var. a fallacia sensuum et halluci-
natio ebriosoriim (derangement of the senses con-
sequent on excess of drinking).

(b) Anoesia ad cogitationes, eccentricity, fixed insane
ideas.

(5) Anoesia sparsa. General Anoesia or lunacy, the charac-

teristics being deliria in every department of the intel-
lectual faculties. Var. a Anoesia potatorum (^Delirium
tremens) .
3d. Vesania maniaca sue Mania. The characteristic being a depravity
(depravation) of the psychical functions, with a concurrent ano-
malousness of the emotional and intellectual faculties. The
symptoms are a violent and perverse temper, inclinations and
impulses, with violent deliria, which mutually sustain and ag-
gravate each other.

(1) Mania transitoria subita, sudden mania, the characteristic
being a sudden breaking out of mania without percep-
tible premonitory stages, and without previous Dys-
thymia or Aiioesia ; generally a crisis in sleep, or transi-
tion to the second class.

258

GENERAL THEORIES. [§ 316.

(a) Mania subita a fehre {Delirium encephaliticum) ,
sudden delirium, with feverish symptoms of the
brain and nerves.

(6) Mania subita a potu nimio, arising from and during
intoxication.

(f?) Mania subita e partu, mania connected with par-
turition.

(e) Mania subito e morbo occulta (vulgo), Amentia oc-
culta, which also includes the previous species.

(2) Mania continua, permanent mania.

(3) Mania remittens, Remittent mania. (Remark — Remittent

mania in remission turns into Anoesia, in some cases
immediately into Dysthymia.)

(4) Mania adstricta seu instinctiva. Moral Insanity (^Mania

sine delirio of Pinel ; Monomanie instinctive of Marc ; Mania
affectiva ; Folie raisonante) ; the characteristics being
insanity, apparently confined to specific morbid im-
pulses. This class is almost always connected with
the symptoms of Mania transitoria seu subita.

(5) Mania sparsa. General mania is the characteristic, being

a depravity (depravation) of both the moral and intel-
lectual powers.

& 316. To Ellinger^ we are indebted for the follow- -p,,.

" *= Ellmger.

ing:—

I. Diseases of the afi"ections, when the affections, sentiments, and desires are
preponderatingly alienated, while the intellectual faculties are affected
in an inferior or at least a secondary degree.

(a) Melancholy, the prevalent type being sadness, depression,

fear, dread, and despair.
(6) Frenzy, the prevalent type being mirth, mischievousness,

anger,
(c) Volatility (Launenhaftigkeit). Alternation between the
two last-mentioned phases.
II. Delirium, the sentiments and intellectual faculties being equally affected,
and both the subjective and objective relations alike distorted.

(a) (6) (c) Characterized by melancholy, frenzy, and the alter-
nation of the two.
III. Diseases of the intellect, where the affections take subordinate part and
the intellect is mainly disordered.
(a) Partial.
(6) General,
(c) Debility, including idiocy and imbecility.

' Ueber die antropologischen Momente der Zurechnungs fahigkeit. Ludwigs-
burg, 1846.

259

§ 320.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

§ 317. Without attempting a formal or scientific analysis, it is
now proposed to consider the several points in which psychology
comes in contact with the law of the land.

§ 318. To those who have examined that portion of the preced-
Three pro- ^^S P^-g^s which treats of the legal relations of mental
minent unsoundness, it will be obvious that no hypothesis can

theories as . . , •' -^

to cause of be constructed which will meet with exactness every pos-
sible future case. No general definition has, therefore,
been attempted, and it is sufficient at present to notice the three
prominent hypotheses by which the cause, rather than the nature,
of mental unsoundness has been explained. This examination is
here made the more thorough, from the fact that it is upon the
result of this inquiry that the philosophy of the common law doc-
trine of insanity must depend.

II. PSYCHICAL THEORY.

§ 319. This is based on the assumption that the primitive source
of these diseases is in the soul itself, and that the soul
the origin is that which originally suffers, and imparts, when there
ease.^ ^^' ^^ insanity, its malady to the body.^

III. SOMATIC THEORY.

§ 320. The somatic theory takes for granted that the soul itself,
_ as such, is incapable of orisrinatino; a disease, but that'

Disturb- ' . ^ . ° . .

ancesofthe the occasion of every affection of the mind is to be found
du^ed by i^^ some abnormity of bodily development, and that aber-
normlties" I'ations of mind are nothing more than disturbances of
some functions of the soul produced by bodily abnormi-
ties. This theory resolves itself into various subdivisions. One
party assumes, that, while every mental disease is to be deduced
from bodily causes, it is still to be treated as a self-existent disease ;
while others maintain that there can be no such thing as a diseased
state of the mind, and that what we usually designate as such is

' See an exposition of this in Dr. to President Noah Porter's admirable

Henry Monro's " Remarks on Insanity, work on the Human Intellect, of recent

its Nature and Treatment," London, (1872) psychological treatises the most

1850. I also call particular attention judicious as well as the most exact.

260

GENERAL THEORIES. [§ 820.

nothing more than a symptom of some bodily disorder.^ The
somatic theory, so far as it involves phrenology, is examined with
singular accuracy and thoroughness by Sir William Hamilton, in
the appendix to the first volume of his Lectures on Metaphysics.^
He first discusses the phrenological doctrine of the cerebellum, and
by a series of experiments explodes the phrenological hypothesis.
After havijig weighed, with peculiar care, and under precautions
which exclude all the known possibilities of mistake, over one
thousand brains of fifty different species of animals, he shows : —

(1) The cerebella of animals generally are not, during a certain
period subsequent to birth, less in proportion to the brain proper
than in adults.

(2) In no species of animal has the female a proportionally
smaller cerebellum than the male ; while in most species, " and
this according to a certain law, she has a considerably larger."

(3) So far from being the case as is alleged by phrenologists,
that in impuberal animals the cerebellum, in proportion to the brain
proper, is greatly less than in adults, the contradictory is shown.

(4) The phrenological assertion, that " the proportion of the
cerebellum to the brain proper in different species is in proportion
to the energy of the phrenological function attributed to it," is
equally groundless.

We add one or two distinct points made by this most eminent
and most reliable of modern psychologists: "I shall, however,
give you the sample of another general fact. The organ of venera-
tion rises in the middle on the coronal surface of the head. Women,
it is universally admitted, manifest religious feeling more strongly
and generally than men, and the phrenologists accordingly assert
that the female cranium is higher in proportion in that region than

• A very ingenious though unsound Lectures on Metaphysics, pp. 650-658,
defence of the somatic theory will be where the phrenological theory is thor-
found in Mr. M. B. Sampson's "Crimi- ouglily demolished. For a copious
nal Jurisprudence considered in rela- and elaborate history of materialism,
tion to Cerebral Organization," Lon- coupled with some ingenious specula-
don, 1843. Hobbes's famous theory tions on its later developments, see
drifts in the same direction. The re- Geschichte des Materiulmus, unci Kritik
suit of this would be to make all re- seiner Bedeutung in der Gegemoart, von
straint an injustice. So far as concerns Friedrich Albert Lange, Iserlohn, 1866.
phrenology, the reader is particularly * Gould & Lincoln, 1859.
referred to Sir William Hamilton's

261

§ 320.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

the male. This I found to be the very reverse of truth, by a com-
parative average of nearly two hundred skulls of either sex. In
man, the female encephalos is considerably smaller than that of the
male, and in shape the crania of the sexes are different. By what
dimension is the female skull less than the male ? The female skull
is longer, it is nearly as broad, but it is much lower than the male.
This is only one of several curious sexual differences of the head.

" I do not know whether it be worth while mentioning, thkt,
by a comparison of all the crania of murderers preserved in the
anatomical museum of this university, with nearly two hundred
ordinary skulls indifferently taken, I found that these criminals
exhibited a development of the phrenological organs of destruc-
tiveness and other evil propensities smaller, and a development of
the higher moral and intellectual qualities larger, than the average.
Nay, more, the same results were obtained when the murderers'
skulls were compared, not merely with common average, but with
the individual crania of Robert Bruce, George Buchanan, and Dr.
David Gregory."

Then, as to the frontal sinuses : —

" I omit all notice of many other decisive facts subversive of the
hypothesis in question ; but I cannot leave the subject without
alluding to one, which disproves at one blow a multitude of
organs, affords a significant example of the accuracy of statement,
and shows how easily manifestation can, by the phrenologists, be
accommodated to any development, real or supposed. I refer to
the frontal sinuses. These are cavities between the tables of the
frontal bone, in consequence of a divergence from each other.
They are found in all puberal crania ; and are of variable and
(from without) wholly inappreciable exent and depth. . . .
Now the phrenologists have, fortunately or unfortunately, concen-
trated the whole of their very smallest organs over the region of
the sinus. How is it possible, he asks, that eye or finger can detect
minute degrees of cerebral development beyond these invisible,
unknown cavities, of various extent ? The phrenologists were not
acquainted with the anatomy of the part. Gall asserted that the
sinus was often absent in men ; seldom or never found in women.
Spurzheim declares that the frontal sinuses are found only in old
persons, or after chronic insanity."
262

GENERAL THEORIES. [§ 320.

In reply to this, Sir W. Hamilton shows, after an inspection of
several hundred crania, that no skull is without a sinus.

Behind the spacious caverns, he then goes on to show, in utter
ignorance of the extent, frequency, and even of the existence of
this impediment, the phrenologists have placed not one large, but
seventeen of their smallest organs.

By concentrating all their organs of the smallest size within the
limits of the sinus, they have, in the first place, put the organs
whose range of development is least behind an obstacle whose range
of development is greatest.

In the second place, they have at once thrown one-half of their
whole organology beyond the range of possible discovery and possi-
ble proof.

In the third place, by thus evincing that their observations on
that one-half had been only illusive fancies, they have furnished a
criterion of the credit that may be accorded to their observations in
relation to the other ; they have shown, in this as in other portions
of their doctrine, that manifestation and development are quantities,
which (be they what they may) can, on their doctrine, always be
brought to an equation.

Fourthly, as if determined to transcend themselves, and find " a
lower deep beneath the lowest," they have placed the least of their
least organs at the very point where this great obstacle is most
potent. The sinus is almost always deepest towards the inner angle
of the eyebrows, and it is just there that the minute organs of size,
configuration, weight, resistance, etc., are said to be.

In the fifth place, they have been quite as unfortunate in the
location of the other minute organs. These they arrange in a series
along the upper edge of the orbit, Avhere, independently of the
sinus, the bone varies more in thickness than in any other part of
the skull. Here have they packed those organs more closely than
peas in a pod, which they scarcely exceed in size. If these pre-
tended organs actually and severally protruded from the brain
(which they do not), if there were no sinus intervening (as there is),
if they were under the thinnest part of the cranium (instead of the
thickest), still these petty organs could not reveal themselves by
showing any elevation, and especially any sudden elevation of super-
incumbent bone. They might possibly indent the inner surface,
and cause a slight attenuation of the bone — and this is all they

263

§ 322.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

could do. The glands of Pacchioni, as thej are improperly called,
which rise on the coronal surface of the encephalos, and are often
even larger than the bodies in question, though they attenuate to
the thinnest, never elevate in the slightest the external body plate.
The thoroughness of the material on which Sir W. Hamilton
acted is shown by the fact that all the crania in the public anatomi-
cal museum at Edinburgh were inspected by him. He subsequently
obtained access to fifty crania, with their supposed developments
marked by Spurzheim's own hand, which had passed to the Royal
Museum of Natural History at Edinburgh. By a tabular view he
shows that a large proportion of the supposed " organs" were
covered or crowded by the frontal sinus.

§ 321. According to the late Dr. Bell, of the McLean Asylum,

Somerville, Massachusetts, autopsies of the insane gener-
of the brain ally present no material lesion of the brain; "changes,
fanity' ^^' indeed, there are to be seen, but only those that may

have occurred in articulo-mortis ;"^ and it was stated by
Dr. Bell, in support of this opinion, that " the late Dr. Waldo J.
Burnett, of Boston, one of the most accomplished microscopists in the
country, had made examinations of persons who had died in a state
of chronic insanity, but had been unable to discover any change of
structure whatever, or any sign to indicate that it did not belong to
an individual whose mind was unafi^ected.''^

§ 322. Bearing on this point are some interesting observations

of Dr. Storer, in his late work on " The Causation,
women Course, and Treatment of Reflex Insanity in Women. "^
ahvays" This very experienced observer, in vindicating the posi-
produce ^^q^ ^j^^t " many cases of mental disturbance in women

organic ''

cerebral are of reflex character, arising from pelvic irritation, and
that local treatment would prove of advantage in very
many more cases than those for which as yet it had ever been em-
ployed," shows that in a great majority of cases insanity is not
accompanied with organic cerebral change. That in women insanity
is generally peripheral and reflex, dependent upon functional or
organic disturbance of the reproductive system, he shows by the
admissions of psychologists that there can be cerebral diseases

' Am. Journ. of Insan. x. p. 73. ^ Ibid.
Cited in Stover, ut infra, p. 47. ^ Boston : Lee & Sliepard, 1871.

264

GENERAL THEORIES. [§ 323.

without insanity and insanity without cerebral disease ; by the
result of autopsies ; by analogies from other sympathetic results ;
by cases on record both psychical and obstetrical ; by the analogies
of the time of development ; by the effect of treatment ; by the
theory of ultimate causation ; by the indications of prevention ;
and by the indications of rational treatment.

§ 323. So far as concerns autopsies, it is stated by Dr. Storer
that the results show that " insanity may exist without
structural changes of the brain, and that structural spondence
changes in the brain may exist without insanity." He exterior of
cites the late Dr. Bell, of the Somerville Asylum, whose ^^^}} ^^^

. . . sanity.

statement has been just given, that the autopsies of the
insane generally present no lesion of the brain ; and that the
changes noticeable may be traceable solely to death ; and he
quotes Dr. BuckniP as maintaining that " the brains of the insane
appear to be certainly not more liable than those of others to
various incidental affections. ... It seemed reasonable to
expect that by the aid of the microscope one would be able to
ascertain whether any exudation or addition to the stroma of the
brain, or any change in size, shape, or proportional number of its
cells, takes place ; and in the indurated brain of chronic insanity,
whether that finely fibrillated exudate, which has been described
by some writers, actually exists ; also, whether, in extreme atrophy
of the brain, any proportion exists in the diminution or degeneration
in the form of the cells or tubes. In none of these points of in-
quiry have we been able to attain the slightest success ^ After
further citations. Dr. Storer proceeds to say that " it is thus seen
not merely that there is no direct correspondence between the
exterior of the skull and mental integrity, any more than between
the exterior of the skull and the shape and consistence of its con-
tents." And in cases of insanity among women, it is shown by
this eminent practitioner that the causes of such insanity are largely
to be found in derangement of the reproductive organs, to be met
by specific local treatment. Yet, at the same time, it is stated that
the indulgences allowed to the mind when in a healthy state have
a large share in determining the character of its passions when
diseased.

Page 430.

265

§ 325.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

§ 324. The conflict on this subject may be exhibited by a single
illustration.^ Ajyhasia, or the loss of speech, is a well-
subject ^^ known disease, sometimes caused by defect of memory,
illustrated sometimes by apparent incapacity of the motor powers.
As belonging to the former of these classes may be men-
tioned the case of the wife of the Rev. William Jay, hereafter to
be noticed f and that of a person reported in 18T1 by Dr. J. G.
Glover to the Clinical Society of London. • In the latter case, the
patient was without any trace of cerebral disease, with no hemi-
plegia, " with no difference in the sensation of the two sides, with
ability to walk, write, and to protrude the tongue straight ; was
yet unable, when shown a familiar object, to recall the proper name
for it, but would designate a book before him as ' good,' ' house,'
' butter ;' called a watch ' tempus fugit,' though able to write the
word ' watch' correctly." A similar perversion of words pervaded
his whole range of vocal expression. Dr. Rush, in his chapter on
" Derangement of the Memory," speaks (1) of " oblivion of names
and vocables of all kinds ;" (2) of " substitution" of words, as in
the case of a gentleman " who, in calling for a knife, asked for a
bushel of wheat ;" (3) of " an oblivion of the names of substances in
a vernacular language, and a facility of calling them by their proper
names in a dead or foreign language," of which, in addition to the
cases given by Dr. Rush, may be mentioned that of the servant girl
referred to by Sir W. Hamilton, who repeated, when in a fever, a
Latin address she had heard her master recite when sweeping his
room ; (4) an " oblivion of all foreign and acquired languages, and
a recollection only of vernacular languages ;" (5) " an oblivion of
the sound of words, but not of the letters which compose them."

^325. Aphasia consists of a confusion of the idea of language
as such, and is to be distinguished from aphonia, which

This said to , ' ° .

be of physi- is simply loss of voice ; and from paralysis which affects
*^ ■ the tongue or muscles of articulation. The question as
to the physical origin of aphasia was first agitated by Gall, who
announced that the faculty of language was seated in those portions
of the brain which rest on the hinder part of the super-orbital

• As to aphasia, see articles in 2 Insanity?; 23 Journ. Ment. Sci. 403;
Brain, 203, 323 ; 35 Am. Journ. Ins., 21 id. 406.
an article entitled Aphasia or Aphasic * Infra, § 692.

266

GENERAL THEORIES. [§ 326.

plate ; and he associated a protrusion of the eyes with this faculty,
giving great facility in learning and retaining words. By Bouil-
lard, aphasia was declared to be in many cases associated with a
diseased or mutilated state of the anterior lobes of the brain ; but
Dr. Hammond,^ after a careful survey of the reported cases, says
" that there can be no doubt that Bouillard is wrong in claiming
that injury of the material lobes is necessarily followed by some
derangement in the faculty of speech." Dr. Hammond, after
reviewing the theories of Dax and Broca, declares,^ (1) " that the
organ of language is situated in both hemispheres, and in that part
which is nourished by the middle cerebral artery ;" (2) " that while
the more frequent occurrence of right hemiplegia, in connection
with aphasia, is in great part the result of the anatomical arrange-
ment of the arteries which favors embolism on that side, there is
strong evidence to show that the left side of the brain is more inti-
mately connected with the faculty of speech than the right." But
even among those advocating a material site for the organ of speech,
these conclusions are not accepted as absolute. Thus Schroeder
van der Kolk, after a series of experiments, tells us that language
unquestionably takes its origin from the " corpora olivaria."

§ 326. On the other hand, we have from a distinguished practical
physician an elaborate treatise, published in 1870, to ^ .

^ '^ '. ^ ' Objections

show that speech has no material centre ; that all at- to this
tempts to give it anything but a psychical origin have
failed ; that aphasia may and does exist without either right hemi-
plegia, or lesion of the third left anterior convolution, or any of the
other symptoms suggested by materialistic psychologists ; and that
these lesions may exist without having any effect on speech.^

Another objection to the exclusively materialistic view lies in the
impossibility of reconciling the indelibility of the records of memory
with the acknowledged fact of the constant efflux and change of the
material substance of the human frame. Old persons, as is well
known, recall Avith peculiar vividness the impressions of infancy.
Between infancy and old age, however, the matter of the brain,
like that of the rest of the body, has not merely grown and

' Diseases of the Nervous System, the Localization of Language, by Fred-
New York, 1871, p. 183. erick Bateman, M.D., Physician to the
2 Ibid. p. 202. Norfolk and Norwich Hospital. Lon-
' On Asphasia or Loss of Speech and don : Churchill, 1870.

267

§ 327.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

increased, but has been subjected to a series of evolutions by which
its substance has been constantly changed. If memory is the
simple inspection of the inscriptions on a cerebral tablet, then, as
the tablet changes, memory must fade. But the fact is that memory
is often intensified in proportion to the extent and number of cere-
bral changes and evolutions. Memory must be, therefore, some-
thing else than an attribute of matter, and, if so with memory, so,
a fortiori, with the other functions of the intellect.^

§ 327. Dr. Maudsley, the most eminent English representative
of this school, admits that the evidence on which the

Materialis- . ,. . , , . , ~, .

tic hypo- materialistic hypothesis rests is not sufBcient to sustain
would it. In his work on the Physiology and Pathology of the

sonai re^' J^'^^^d,^ he explains this by saying, that, " where the sub-
sponsibii- tlety of nature so far exceeds the subtlety of human
investigation, to conclude from the non-appearance of
change to the non-existence thereof would be just as if the blind
man were to maintain that there were no colors, or the deaf man to
assert that there was no sound. Matter and force are necessary
coexistents, and mutually suppose one another in human thought ;
and to speak of change in one is of necessity to imply change in the
other. . . . And there are numerous facts available to prove
that the most serious modifications in the constitution of nerve ele-
ment may take place without any knowledge of them otherwise than
by the correlative change of energy." But such reasoning as this
cannot be accepted in law. A plaintifi" brings an action of eject-
ment, and, without producing evidence to support his claim, declares
(1) that it is insusceptible of proof, (2) that to dispute it is as just
as it would " be for the blind man to maintain that there were no col-
ors, or the deaf man to assert that there was no sound." But if the
claim is one as to which there is no " knowledge," and to test
which the human mind is impotent, then it is one which ought not
to be brought. For materialism is the plaintifi" in a great suit on
which great results, religious and judicial, depend. If it be true,
all our ordinary notions of penal responsibility will be upset. Thus
Dr. Maudsley adopts at the head of his seventh chapter, which dis-
cusses volition, Spinoza's statement that " it is a delusion on the
part of mankind to fancy themselves free agents. . . . The

» See also infra, § 329. « London, 1867, p. 367.

268

GENERAL THEORIES. [§ 328.

idea that men are in possession of their liberty arises from the fact
that they are ignorant of the cause for their actions." This Dr.
Maudsley expands so as to make it appear that all acts are the
result of material necessity. The law, on the other hand, holds
that all acts, so far as concerns the sane, are free. When Dr.
Maudsley assails this settled position, we cannot allow ourselves to
be convinced, when we call for proof, by being told that we are like
blind and deaf men who undertake to judge of color and sound.

§ 328. Dr. Maudsley, however, is careful to disclaim any neces-
sary relation between materialism and the doctrines of

, . ,. , -, .,.,.-,, , Though it

the immortahty and future responsibility of the soul, is claimed
" Whosoever," he writes,^ " believes sincerely in the doc- feet future
trine of the resurrection of the body , as taught by the Apos- respousi-
tle Paul, which all Christians profess to do, must surely
have some difficulty in conceiving the immortality of the soul apart
from that of the body ; for if the apostle's preaching and the Chris-
tian's faith be not in vain, and the body do rise again, then it may
be presumed that the soul and it will share a common immortality,
as they have shared a common mortality. So far, then, from mate-
rialism being the negation of immortality, the greatest of the apostles
earnestly preached materialism as essential to the life which is to
come. There is little or less justification for saying that material-
ism involves of necessity the denial of free will. The facts on
which the doctrine of free will are based are the same facts of ob-
servation, whether spiritualism or materialism be the accepted faith,
and the question of their interpretation is not essentially connected
with the one or the other faith ; the spiritualist may consistently
deny, and the materialist consistently advocate, free will. In like
manner, the belief in the existence of God is nowise inconsistent
with the most extreme materialism. . . . The spiritualist may
deny God the power to make matter think, but the materialist need
not deny the existence of God because he holds that matter may
be capable of thought."^

' Body and Mind, London, 1870, p. topic, by Mr. I. B. Dalgairns, in the
123. Cotemporary Review for December,

2 See also a curious essay on this 1870 ; and see infra, §§ 332-335.

269

§ 329.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.
IV. INTERMEDIATE THEORY.

1. Its basis.

§ 329. This view attributes to the body and the soul alike origi-
native influence, in the growth of mental diseases.^ The theory is

• See a very capable sketch of these
theories in Schurmayer, Gerichtliche
Medicin, § 521, from which this analysis
is taken ; and see also particularly Dr.
Rush's examination of the same points
in his treatise on the Mind, pp. 12, 13,
14, and where that eminent authority
(p. 16) localizes madness in the blood-
vessels of the brain.

Feuchtersleben, in his celebrated
work (Principles of Medical Psycho-
logy, translated by Evans Lloyd,
printed by the Sydenham Society, Lon-
don, 1847), may be considered as adopt-
ing the intermediate theory. Insanity,
he tells us, is not either a bodily or a
mental disease, being a disturbed recip-
rocal relation of mind and body. Dr.
Jamieson (Lectures on the Med. Jur.
of Insanity, by Robert Jamieson, M.D.)
takes this same view.

The religious aspects of the question
are well discussed in the London Chris-
tian Observer, vol. 29, p. 265, and by
the Rev. Dr. Jones, in "Man, Moral
and Physical," Phil. 1860.

Sir Benjamin Brodie, in an autho-
ritative essay (Psychological Inqui-
ries, etc., London, 1854), gives the
following conclusive objections to the
phrenological phase of the somatic
theory : ' ' Now there are two simple
anatomical facts which the founders of
this system have overlooked, or with
which they are probably unacquainted,
and which of themselves afford a suffi-
cient contradiction of it.

"1st. They refer the mere animal
propensities chiefly to the posterior
lobes, and the intellectual faculties to
the anterior lobes of the cerebrum.

270

But the truth is, that the posterior
lobes exist only in the human brain,
and in that of some of the tribes of
monkeys, and are absolutely wanting
in quadrupeds. Of this there is no
more doubt than there is of any other
of the best established facts in anatomy ;
so that, if phrenology be true, the
marked distinction between man on
the one hand, and a cat, or a horse, or
a sheep on the other, ought to be, that
the former has the animal propensities
developed to their fullest extent, and
that these are deficient in the latter.

"2dly. Birds have various propen-
sities and faculties in common with us,
and in the writings of phrenologists
many of their illustrations are derived
from this class of vertebral animals.
But the structure of the bird's brain is
essentially different, not only from that
of the human brain, but from that of
the brain of all mammalia. In order
that I may make this plain, you must
excuse me if I repeat what I said on
the subject formerly. In the mammalia
the name of the corpus striatum has been
given to each of two organs of a small
size compared with that of the entire
brain, distinguished by a peculiar dis-
position of the gray and the fibrous or
medullary substance of which they are
composed, and placed under the entire
mass of the hemispheres of the cere-
brum. In the bird's brain what ap-
pears to a superficial observer to cor-
respond to these hemispheres is found,
on a more minute examination, to be
apparently the corpora striata developed
to an enormous size ; that which
really corresponds to the cerebral hemi-

GENERAL THEORIES.

[§ 329.

the one best sustained by modern induction, and is that Body and

soul 3.1ikG

which is most consistent, as will presently be seen, with the ori^n
the Christian standard. °^ *^^^"'^''-

Independently of the pathological diflficulties in the way of the
somatic theory, psychological research testifies strongly against
it.^ The mental and moral functions are the immediate products of
an independent sphere of organism, and not to be explained by
anything lying outside of that sphere. The brain and the nerves
have only the physical part of perception and motion, and to some
extent the regulation of the functions, to perform ; but the soul
cannot but be considered as distinct from this activity of the nerves.
The somatic theory, which confounds the two, will never be able
to make a satisfactory distinction between palsy and imbecility,
between convulsions and ravings, between sensuous hallucinations
and insanity.^ This theory, therefore, fails in affording support to
any practical system of therapeutics.

spheres being merely a thin layer ex-
panded over their upper surface, and
presenting no appearance of convolu-
tions. It is plain, then, that there can
be no phrenological organs in the bird's
brain, corresponding to those which
are said to exist in the human brain,
or in that of other mammalia. Yet
birds are as pugnacious and destruc-
tive, as much attached to the localities
in which they reside, as any individ-
ual among us."

In his interesting work on Criminal
Jurisprudence, Mr. Sampson adopts the
views of the author of " Vestiges of the
Natural History of Creation," and
ascribes every criminal action to some
abnormal or morbid condition of the
cerebral organization. This funda-
mental proposition is, that "every
manifestation of the mind depends
upon the confirmation and health of its
material instrument, the brain ; and,
as it is not the function of a sound and
healthy brain to give rise to any other
than healthy manifestations, so no
error of judgment can ever arise but as

the result of a defective condition of
that organ." He proceeds to say : —

"Mr. Hurlbut, an eminent counsel-
lor, and one of the supreme judges in
the state of New York, in his ' Essays
on Human Rights and Political Gua-
rantees,' a work which is well worthy
of perusal, promulgates the same doc-
trine, which, on the other hand, is very
ably controverted by Dr. Hood — ' Sug-
gestions for the further provision of
Criminal Lunatics, by Charles Hood,
M.D. London, 1854. pp. 126, 127.' "

' Supra, §§ 320-327. Siebold, Lehr-
buch der Gericht. Med., Berlin, 1847,
§ 194 ; L. Krahmer, Handbuch der
Gericht. Med., Halle, C. A. Schwet-
schke, 1851, § 126; Heinroth, Syst.
der psychischgericht. Med., Leipsic,
1825 ; Kant, Anthropologie, Konigsb.
1798 ; Metzger's Ger. Med. Abhaudl.,
Konigsb. 1803.

2 Lemons Cliniques sur I'Alienation
Mentale, par Falret, le9on 1, p. 8,
Paris, 1854. The most thorough of
the German advocates of the somatic
theory is Friedreich, particularly in

271

§ 330.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOQICALLT.

Psycho-
logical
theory too
great a re-
action
from the
somatic.

§ 330. The psychological theory, at its first inception, split upon
the opposite rock, in denying the influence of the physi-
cal processes upon mental diseases in the face of experi-
ence. In opposition to the somatists, it was thought
necessary to exclude all natural causes from the explana-
tion of the origin of mental affections, and to ascribe
them to an act of voluntary self-inthralment, which, in all cases,
was to be attributed to some prior moral excess or delinquency in-
curred with a knowledge of the consequences. But a derangement
of mind is not identical with sin. For, though every vice, every
sin, is an abnormity of the soul, yet every abnormity of the soul is
not sin. A lunatic may be, in a human sense, innocent of posi-
tive guilt ; and, on the other hand, the worst of criminals may
retain his sanity. It is impossible to adhere to this doctrine in
practice, without reducing the entire treatment of the disease to a
system of rewards and punishments ; and the vagueness of the idea
of freedom and constraint, the impossibility of distinguishing be-
tween the moral thraldom of the criminal and that of the sick man,
will throw into confusion the entire system of forensic psychology.^
It is equally wrong to derive all diseases of the mind from the pas-
sions, although the latter may be important causes, and, in the more
advanced stages, symptoms of insanity .^ At the same time, as will
hereafter be more fully shown,^ there is in the mass of cases of
insane convicts such an amount of responsibility as to require the
infliction of a degree of punishment which, though different from
that imposed on the sane, will yet be accompanied with a corrective
as well as a preventive discipline.

his " Historisch-kritisclie Darstellung
der Theorien iiber das Wesen und den
Sitz der psychischen Krankheiten,"
Leipsic, 1836.

' Etudes Medico-psycliologiques, par
M. Renaudin, p. 166, art. 30, Sur la
responsabilite morale, Paris, 1854 ; Le-
mons Cliniques de M. Falret, p. 11,
discours d'ouverture, Paris, 1854 ;
Manuel Complet de Medecine Legale,
par J. Briand, sect, troisieme, art. iii.
p. 560, Paris, 1852.

* See infra, § 347. Heinroth is the
leading representative of the psycho-

272

logical theory. See his " Lehrbuch
der Seelenkrankheiten," Leipsic, 1818,
and his " System der psychischgericht-
lichen Medicin," Leipsic, 1825. Dr.
Mayo, in his "Medical Testimony on
Lunacy," goes some distance in the
same direction ; and, as has been seen,
very justly argues in favor of a dis-
crimination of punishment between the
malicious and unconscious insane cri-
minal. Mayo, etc., 50, 51.

^ See, to this effect, HoltzendorflPa
Enc. 1870, tit. Wahnsinn.

GENERAL THEORIES. [§ 332.

§ 331. The intermediate theory is that to which the soundest

psychologists now tend. " In the first place," says Sir

;,/„. ?^ .,. . , • 1 1 . Sound

William Hamilton, '' there is no good ground to suppose psychoio-

that the mind is situated solelj in the brain, or exclu- fo^jnter^
sively in any one part of the body. On the contrary, mediate
the supposition that it is really present wherever we are
conscious that it acts — in a word, the Peripatetic aphorism, the
soul is all in the whole and all in every part — is more philosophical,
and consequently more probable, than any other opinion. It has
not been always noticed, even by those who deem themselves the
chosen champions of the immortality of the soul, that we materialize
mind when we attribute to it the relations of matter. Thus, we
cannot attribute a local seat to the soul without clothing it with the
properties of extension and place, and those who suppose this seat
to be but a point only aggravate the difiiculty. Admitting the
spirituality of mind, all that we know of the relation of soul and
body is that the former is connected with the latter in a way of
which we are wholly ignorant ; and that it holds relations, different
both in degree and kind, with different parts of the organism. We
have no right, however, to say that it is limited to any one part of
the organism ; for even if we admit that the nervous system is the
one to which it is proximately united, still the nervous system is
itself universally ramified throughout the body ; and we have no
more right to deny that the mind feels at the finger-points, as con-
sciousness assures us, than to assert that it thinks exclusively in
the brain. The sum of our knowledge of the connection of mind
and body is, therefore, this : that the mental modifications are
dependent on certain corporal conditions ; but of the nature of these
conditions we know nothing. For example, we know, by experi-
ence, that the mind perceives only through certain organs of sense,
and that through these different organs it perceives in a different
manner. But whether the senses be instruments, whether they be
media, or whether they be only partial outlets to the mind incar-
cerated in the body, on all this we can only theorize and con-
jecture."^

§ 332. The intermediate theory has at least not been rejected
by standard Christian theologians. "The resurrection," says

* Sir William Hamilton's Lectures on Metaphysics, p. 356. See infra, 347.

VOL. L— 18 273

§ 833.] MENTAL UNSOUNDNESS CONSIDEKED PSYCHOLOGICALLY.

This theory Bishop Pearson, " is not only in itself possible, so that
hystaiuiard ^^ ^^^ ^^^^ ^^J reason Can absolutely deny it, but it
theologians jg ^igQ upon many considerations highly probable, so
that all men may very rationally expect it. If "we consider the
principles of humanity, the parts of which we all consist, we cannot
conceive this present life to be proportionable to our composition.
The souls of men, as they are immaterial, so they are immortal ;
and being once created by the Father of spirits, they receive a
subsistence for eternity ; the body is framed by the same God to
be a companion for his spirit, and a man bom into the world con-
sisteth of these two. Now, the life of the most aged person is but
short, and many far ignobler creatures have a longer duration.
Some of the fowls of the air, several of the fishes of the sea, many
of the beasts of the field, divers of the plants of the earth, are of a
more durable constitution, and outlive the sons of men. And can
we think that such material and mortal, that such inunderstanding
souls, should by God and nature be furnished with bodies of so
long permansion, and that our spirits should be joined unto flesh
so subject to corruption, so suddenly dissolvable, were it not that
they lived but once, and so enjoyed that life for a longer season,
and then went soul and body to the same destruction, never to be
restored to the same subsistence ? But when the soul of man,
which is immortal, is forced from its body in a shorter time, nor
can by any means continue with it half the years which many other
creatures live, it is because this is not the only life belonging to the
ions of men, and so the soul may at a shorter warning leave the
body which it shall resume again. "^

§ 333. To this may be added the authority of Isaac Taylor, who,
in his " Physical Theory of another Life," after point-
poreaiity^' i^g out how completely the question whether the human
of the soul gQ^jj jg gygj, actually or entirely separated from matter is
canon of passed ovcr by St. Paul as an inquiry altogether irrele-
vant to religion, continues : " Let it be then distinctly
kept in view that, although the essential independence of mind and
matter, or the abstract possibility of the former existing apart from
corporeal life, may well be considered as tacitly implied in the

• Pearson on the Creed, ed. 1853, p. 558. See also Dr. Maudsley's remarks,
supra, § 328.

274

GENERAL THEORIES. [§ 336.

Christian's scheme, yet that an actual incorporeal state of the
human soul, at any period of its course, is not involved in the prin-
ciples of our faith any more than is explicitly asserted."

§ 884. " "We are unable," says Pascal, " to conceive Mind and
what is mind ; we are unable to perceive what is matter ; united in
still less are we able to conceive how these are united ; ture!^^"
yet this is our proper nature."

§ 385. " Such," says President Edwards, the first metaphy-
sician of his country, and perhaps the first of his age,

, , , 1 1 ,1 1 f ^ • And react

" seems to be our nature, and such the laws oi the union upon each
of soul and body, that there never is, in any case what- *^* ^^'
soever, any lively and vigorous exercise of the will or inclination
of the soul without some 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 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 and understand-
ing. As it is the soul only that has ideas, so it is the soul only
that is pleased or displeased with its ideas. As it is the soul only
that thinks, so it is the soul only that loves or hates, rejoices or is
grieved at what it thinks of. Nor are these motions of the animal
spirits and fluids of the body anything properly belonging to the
nature of the affections, though they always accompany them in the
present state, but are only effects or concomitants of the affections
that are entirely distinct from the affections themselves, and no way
essential to them ; so that an unbodied spirit may be as capable of
love and hatred, joy or sorrow, hope or fear, or other affections, as
one is that is united to a body."^

2. Its effect on responsibility.

§ 886. The intermediate theory, as above stated, relieves the
doctrine of criminal responsibility of some of its chief difficulties.
If the somatic theory be correct, then a criminal propensity is

' Edwards on Religious Affections, p. 15.

275

§ 337.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

interme- a physical malformation, for which the defendant is no

ory re- more responsible than he is for a malformation of the

trine of ' limbs. A squint in morals, to carry out a metaphor

MiS^o^f" ^^ Chief Justice Gibson, would in this view be no more

manydiffi- a fault than a squint of the eyes. Such a criminal

Clllti6S

may be prevented from future misconduct ; but, logically,
neither punitive nor reformatory discipline can be applied to him ;
the first because it is unjust, the second because it is hopeless.^
Here, indeed, the representatives of the somatic theory practically
divide. By some, permanent incarceration — and this solely on
preventive grounds— is the only penalty to which criminals can be
properly subject. By others, among whom Mr. Bain is a modified
representative, punishment is vindicated as having a necessary moral
effect 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 causal power of the will as
it is on the somatic basis. It cannot be reached by penal discipline,
for by the very hypothesis on which it is framed it rises above the
action of the nervous and corporeal system. It cannot be reformed
by bodily correction ; and to attempt, therefore, by such correction
to reach it would be both unjust and nugatory.

§ 337. The intermediate theory, however, teaches us that insanity

(with the exception of idiocy and certain hereditary and
pei^aiXsci- Organic types) is (1) in a large measure the result of
d t^'^m^n^d ^^^^^^^ ^^^ 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
restrained. The remaining difficulty is to determine what are the
cases to which such penal discipline is applicable. And here the
analogies of the English common law give us a safe test. Where
mania- ci-potu 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

> See infra, § 348. 2 gge supra, §§ 146-160.

276

GENERAL THEORIES. [§ 337.

not presumed to act with premeditation or with that specific intention
to take life which is necessary to subject him to capital punishment.
So it is in insanity. Mania, when a permanent disorder of the
intellect, by incapacitating the party from reasoning on the par-
ticular issue, relieves him from criminal responsibility. But a mere
" monamania," unaccompanied by intellectual lesion, cannot, for
penal purposes, be considered else than voluntary passion. It may
be invoked to lower the grade from murder in the first to murder
in the second degree, by depriving the intent of that coolness and
specialty necessary to make up the former offence,^ but it can never
be the basis of an acquittal on the ground of irresponsibility.

' See supra, § 200.

277

MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

CHAPTER II.

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED.

I. Bt Whom.

Character of examination should de-
pend on character of subject, § 338.

Legal and medical functionaries should
act in common, § 339.

In this way greater certainty is reached,
§ 340.

II. At what time Examinations should

BE MADE.

Examinations may be made at different
times, § 341.

1. At the commission of the deed, §
342.

2. During the trial, § 343.

3. After sentence pronounced, § 344

III. By what Tests.

1. Physiognomy.

General appearance to be noticed, § 345.

Also expression of eye and nostrils, §

346.
Color and condition of skin, § 346 a.

2. Physical conditions.
Somatic conditions often important, §
347.

(a) Injuries to brain.

Insanity not a necessary sequence of

disease, § 348.
Brain disease may develop rapidly, §

349.
Or slowly, in different cases, § 350.

(b) Anomalies of sensibility, of pulse, of
secretion, and o/" senses.

General health to be considered, § 352.
Anomalies in other parts of body of
great value, § 353.

278

Insanity with physical disorganization,
§354.

Range of sensibility in the insane, §
355.

Instances of want of sensibility, § 357.

Insensibility to cold a frequent symp-
tom, § 358.

Other physical tests, § 358 a.

The secretions a test, but the pulse not,
§ 359.

Abnormities of the sensorial system
most interesting, § 360.

Change in moral disposition not unu-
sual, § 361. *

3. Hereditary tendency.
(a) Psychologically.

Descent of insanity, though not uni-
versal, follows ascertainable rules,
§ 362.

Symptoms of hereditary insanity, § 363.

Insanity often hereditary, § 364.

Renaudin's exposition, § 366.

Crime hereditary, § 367.

Nervous diseases may transmit mental
derangement, § 368.

Excesses of parents often the cause of
idiocy, § 369.

Case of hereditary criminal propensity,
§ 371.

But such hereditary propensity without
insanity no defence, § 372.
(i) Legally.

Legally, evidence of hereditary insanity
admissible, § 373.

So in England, § 374.

Evidence may be given of insanity of
collateral relations, § 375.

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 338.

It need not be notorious, § 376.
Insanity of relatives no defence, per se,
§377.

4, Conversation and deportment.

Insanity often difficult to detect from
deportment, § 378.

Often only detected by outside circum-
stances, § 379.

Insanity sometimes only apparent on
one topic, § 380.

Or entirely concealed, § 381.

Instances of craftiness in lunatics, § 382.

Cunning may be forerunner of insanity,
§ 384.

But sooner or later detected, § 385.

5. Writings.
The correspondence of the insane a

valuable test, § 386.
Style and handwriting tests as well as

contents, § 387.

6. Prior history.
All prior history is admissible evidence,

§ 388.

7. Nature of act.

(a) Its insensibility.
Insanity may often be detected by in-

sibility of act, § 389.
But maniacs are often consistent and

criminals irrational, § 389 6.

(&) Its incongruity with antecedents.
This often proper to consider, § 390.
Knowledge of past history necessary,

§391.

Sanity in one man might be insanity

in another, § 392.
Insane act either isolated or one of a

sequence, § 393.
Isolated and abnormal acts possible,

§394.
No disease necessarily a cause of moral

acts, § 395.
Insane acts generally done openly and

avowedly, § 396.
Insanity often changes character, § 397.

of insanity, § 399.
Suggestions for study of motive, § 400.

1. Motive rarely simple, § 401.

2. Instinctive passion responsible, §
403.

3. Wickedness not motiveless, § 404.
Yet there may be a legally motiveless

act, § 405.

(c?) Neglect to escape.
Pre-arranged subterfuge not always

proof of sanity, § 406.
Skill in concealing delusions proves

little, § 407.
Innocence not shown by absence of pre-
arranged subterfuge, § 408.
Attempts at escape after occurrence no

proof of sanity, § 409.

(e) Forgetfulness as to act.
Subsequent forgetfulness as to act

raises presumption of insanity, § 410.
But such a defence open to suspicion, §

411.

I. BY WHOM.

§ 338. The law with regard to the admissibility both of experts
and of non-experts, and to the weight to be attached to
their testimony, has been already stated."^ It is well to
keep in mind the suggestions of HofFbauer in regard to
the importance of adaptation, by the expert, of examina-
tion to character. The uneducated and the refined, the
bashful, timid, and retiring, and the cunning, insolent, and hardened,

Character
of exami-
nation
should de-
pend on
character
of subject.

Supra, §§ 272-282, 294-300.

279

§ 339.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

the eccentric, the rictim of fixed ideas, and the lunatic, each requires
a different style of treatment. The physician must reach the heart
of the ignorant man by reference to objects palpable to the sense,
and must address the man of education in the spirit "which animates
him. He must approach the bashful, the timid, and the morose
with cordiality and affability, and exercise practical tact, circum-
spection, and adroitness in conversation ■vyith the cunning, the har-
dened, and the insolent, impressing them with respect for his per-
sonal and mental qualifications. On the whole, the tone of the
subject must regulate the tone of the examiner. But, where one
style of treatment is found of no avail, recourse must be had to
the opposite one. Where the patient sits immovable as a statue,
without answering any question addressed him, which often occurs
in cases of deeply-seated melancholy, further questions should not
be asked, but observation alone resorted to.^

§ 339. That a man is of sound mind, will generally be suiEciently
manifest to a prosecuting officer of discretion ; but whe-
nTedlcaf ^^^^ ^ ^^^ ^s really or only apparently deranged, is a'
^rkf^shouid ^[uestion which cannot be decided with the certainty
act in com- belonging to science except by a physician ; nor is it
possible, without a knowledge of psychological medicine,
to pronounce upon the influence exercised by specific forms of
disease upon given actions.

The legal relation of courts to experts has been already fully
discussed.^

It should not be forgotten, however, that it is of much importance
in the diagnosis of insanity that the proper legal and medical func-
tionaries should act in common. Written explanations are here of
much less value tlian oral intercourse, where a few words will often
suffice to remove a difficulty, to correct an error, or to supply an
omission. In visiting a deranged culprit for this purpose, the
prosecuting officer should invite the physician to accompany him.
They then may alternately converse with the accused, whereby
both the morbid and criminal peculiarities of the subject will be
clearly unfolded to them both. It is well established that a man
of unsound mind will act very differently, according as he views

1 J. H. Hoffbaur, Die Psycliischen « Supra, §§ 190-199.
Krankheiten in Bezug auf die Reclxts-
pfiege, Berlin, 31.

280

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 342.

the persons before whom he stands with fear, respect, or confidence.
It is sometimes advisable to invite the physician's attendance at an
official hearing, where, under the semblance of a mere occasional
and unofficial companion, he may make a diagnosis the more
accurate because unsuspected.

§ 340. It is not to be denied that a lay observer, or an unassisted
judge or jury, may be able to distinguish a case of fully
developed and clearly manifested insanity ; but, aside greater ^^^
from the necessity of a knowledge of all the particular certainty is
relations existing between a given state of disease and a
given act, it is important that in all legal investigations the highest
degree of certainty should be secured.

The admissibility of non-experts, as a matter of law, is examined
under a previous head.^

TI. AT "WHAT TIME EXAMINATIONS SHOULD BE MADE.

§ 341. There are three diiferent times in which the conduct of
the accused may become the subject of a forensico- ^

•^ _ _ *^ _ ^ Examina-

psychological investigation: 1, at the commission of the tions may

deed ; 2, during the trial ; and, 3, after sentence pro- different

nounced. At each of these periods, the court has a sep- *^'^'^^-

arate point of view from which to regard the state of mind of the

defendant, in each the purpose of the inquiry is different, and in

each the interrogations to be directed to the physician must be

modified accordingly. ^

§ 342. In regard to the first point, the issues to be met by the

physician should be, in general, whether a diseased men- -^ At the

tal state attended the commission of the act, wherein the commission
T • -I i»ii IT of tlie deed.

disease consisted, and whether the mental and moral
functions exercised and implicated in the perpetration were of such
a nature that either, a, there was no consciousness of criminality
and no freedom of volition, or, b, the possibility of such conscious-
ness and spontaneity was excluded, or, c, both the one and the
other were incapable of ascertainment and must be left in doubt.
The practice which has lately grown up, of interrogating as to a
conclusion of law {e. g., was the defendant capable of distinguishing

J Supra, §§ 272-275. « See Scliiirmayer, § 51G, whose

views are here adopted.

281

§ 344.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

right from wrong, or was he a free agent), instead of as to a state
of facts (e. g., was he laboring under mental disease, and, if so,
what), is not only false in theory, but pernicious in result. No
expert can be viewed as satisfactorily performing his office in this
respect, who neglects to familiarize himself with the patient's prior
history.^

§ 343. The second period of time becomes of particular interest
2. During ^^ those of our American jurisdictions in which, when
the trial. ^ party alleged to be insane is put on his trial, the jury
are specially sworn to determine the preliminary issue whether
the defendant be insane at the time of trial. If the fact be found
in his favor, he is confined under special sanctions. If otherwise,
the trial proceeds on the main issue.

§ 344. The third period of time, at which the state of a culprit's
g . mind is open to medical investigation, is after the close

sentence of the trial, and before the execution of the sentence.
A man of unsound mind is incapable of understanding
the justice of his sentence, or of recognizing a punishment in the
evil inflicted upon him. In many cases also the evil will aggravate
his disease. For all these reasons it is necessary to be certain that
a convict is so far in the possession of all his faculties, that the
object of the law in subjecting him to punishment will be answered.
The interrogations to be submitted to the physician are to be framed
upon this simple principle ; and it is self-evident that only such
derangements will here come in question as are clearly manifest,
and as clearly exclude the possibility of the prisoner's understand-
ing the reason of his punishment.

It would be a proper regulation to cause every convict, before
undergoing his punishment, to be examined in body and mind by
the physician, for the purpose of ascertaining his capacity for the
ordeal. Even where the general fitness of the subject is undoubted,
there are frequently personal defects which require attention in the
treatment of the prisoner during confinement. In several of the
German states this precaution is observed, and where a convict is
found to be insane, he must be subjected to the proper treatment.
If a cure is effected, the question whether he is now able to sustain
the punishment without danger of relapse or other injury, is to be

» See infra, § 391.
282

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 346.

decided by the forensic physician, upon a careful investigation of
all the symptoms and attendant circumstances.

III. BY WHAT TESTS.

1. Physiognomy.^

§ 345. The general questions in relation to feigned insanity are
noticed under a subsequent head.^

" Close attention," says Schurmayer,^ " should be first directed
to the entire exterior of the subject, his posture, his General ap-

motions, his gestures, his eye, his words, his intonation, pearance to
' => ' '' ' be noticed.

and, above all, the first impression produced upon his

mind by the appearance of the physician. What most distinctly
characterizes a mental disease, and is never misunderstood by a
skilful physician, is the physiognomy of such a patient. . The eye
of a madman is the mirror of his soul. He lacks the calm unob-
structed gaze peculiar to the sane, untouched by passion or excite-
ment." "Look," says Heinroth,* "upon the cunning leer of a
lunatic, the savage glare of a maniac, the lack-lustre eyes of a
splenetic, or the meaningless stare of an imbecile ; such things can-
not be counterfeited."'

The form of the sJcidl is often peculiar in every description of
mental disease, but is particularly noticeable in the case of cretins
and natural fools.

§ 346. The expressions of the eye^ and of the nose^ have been

1 See infra, § 450. The features of 3 Gericlitliche Medicin, § 529.

the face, says Falret, change at each * System der gerichtlich psychisch en

instant or constantly preserve the same Medizin, p. 343. See article by Dr.

expression ; the lips, the cheeks, the Laurent, translated in 20 Am. Journ.

nostrils, the eyebrows, the eyelids, fre- of Ins. 216.

quently show convulsive movement ; ^ Drawings, very well executed, are

it is the same with regard to the mus- to he found in Morrison's Outlines of

cles of the eye, and under the influ- Mental Diseases, London, 1829, and in

ence of these convulsions, the look is Esquirol, Des Maladies Mentales, Paris,

troubled, bewildered, and unsteady. 1838.

Lemons Cliniques sur I'Alienation Men- ^ Loebels, Grundriss der Semiologie

tale, M. Falret, huitieme le9on, p. 219. des Auges. Jena, 1817, p. 27.

Paris, 1854 ; see also Orfila, Med. Leg. ^ Hoefling, in Casper's Woclien-

i. p. 379. Paris, 1848. schrift, 1834.

2 Infra, §§ 443-460.

283

§ 346 a.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

Also ex- very capably exhibited by two eminent physiognomists.
eyeTud° ^^e latter feature has been examined with peculiar
nostrils. ability by Hoefling.^ " In the apparently joyous coun-
tenance of a laughing madman," he tells us, "the upward trac-
tion of the sides of the nose, nevertheless, indicate unmistakably
the presence of pain, and this expresses much of the physiognomic
peculiarity of such unfortunates.^ In like manner the simple un-
meaning smile of imbecility is marked by the form and shape of the
nose, which, with its downward, circular openings, and the tension
of the skin on the peak, expresses a torpor, while in the laugh of a
sane man the notrils contract, and become elongated, without a de-
parture of the septum from its horizontal position." The mouth of
the simpleton twitches with a constant unmeaning smile, accom-
panied with a low, inarticulate and thoughtless mumble, and the
imbecile is almost always found, sitting or standing, with parted
lips.^ " With many," says Schiirmayer, " the mouth is constantly
in motion, as if they were talking to themselves. In the paroxysms
of mania there is a convulsive distortion or contraction of the mouth.
Receptivity for certain external impressions is generally low, par-
ticularly in the case of impressions accompanied with pain,^ of cold,
heat, and certain medicines."

§ 346 a. "The condition and color of the skin," says Dr. Laurent,
" have great value in the eyes of the alienist physician. I

' Ibid. yellow tinctured with sallowness, with.-

2 " To represent the prevailing cliar- out one spot of enlivening carnation;
acter and physiognomy of a madman, the hair sooty black, stiif, and bushy,
the body should be strong and the or of a pale, sickly yellow, with wiry
muscles rigid and distinct, the skin hair." — Anatomy of Expression. Sir
bound, the features sharp, the eye Charles Bell, London, 1844.

sunk ; the color of a dark brownish-

" His burning eye, whom bloody strokes did stain,
Stared full wide and threw forth sparks of fire ;
And more for rank despight than for great pain,
Shaked his long locks, colored like copper wire.
And bit his tawny beard to show his raging ire."

Faery Queen, Book ii., canto 4, v. 15.

3 Danz, Allgemeine Medizinische der Allgemeine's Pathologie der psy-
Zeichenlehre. Heinroth's edition, chischen Krankheiten. Erlangen,
Leipsic, 1812, p. 353. 1839, p. 121.

* Compare Friedreich, Handbuch

284

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 346a.

think it riffht expressly to insist on the symptoms fur- Color and

^, . T , . ■, • condition

nished by this organ. I have noticed some very curious of skin,
morbid phenomena. Professor Trousseau has specified in
his clinical lectures some very important peculiarities in the functions
of the skin manifesting themselves during head affections. After the
example of this learned man, I must insist on this point. Color
furnishes signs well worthy attention. The skin of the face — and
it is of this part alone I speak — may be dry and arid, the seat of
herpetic scurvy and scaly eruptions, or may be moist with perspira-
tion, or a liquid secretion of a more or less oily nature and of varia-
ble odor. Its color is susceptible of numerous general or partial
modifications. It may be pale. This pallor has divers shades, from
pure white to the slightly yellow tinge (compared to that of straw
or wax), or earthy brown, and bronzed. It may be of every shade
of red, from rosy to vermilion, violet and purple. But season and
exposure to the sun's rays should always be taken into consideration.
The skin may have a greater or less tonicity, and the subcutaneous,
subcellular tissue be more or less elastic. It also is marked by
lines and furrows, which are of importance as indicating the amount
of activity of the subjacent muscles. At first, during infancy and
adolescence, few in number, their formation becomes fecund in pro-
portion as age advances, which must be attributed to the thinning
of the face or the loss of the mobile parts by age, sickness, passion,
and deep emotion of the soul. I think it unnecessary to describe
these furrows, which may assume different forms — horizontal, verti-
cal, oblique, sinuous, and more or less close or parallel.

" The organ of sight offers for consideration its form, movements,
and expression. The eyes may be more or less prominent or de-
pressed in the orbit ; the aperture between the lids smaller or
greater ; the sclerotic, very apparent around the pupil, exhibits a
variable blush, yellowish or red tinge ; the dilatation of the vessels
very evident. Little livid or black veins may be perceived on it.
The conjunctival surface may be dry, humid, or moistened with tears ;
the pupils may be deformed by being equally or unequally dilated or
contracted. Strabismus may be observed ; a distortion of the eyes
by which they look crosswise, either above, below, or to the side,
twisting even during sleep. In the normal state the ocular globe
is susceptible, under the influence of the will, of numberless motions
in every sense, and these motions may have a longer or shorter

285

§ 346 a.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

duration ; but in the morbid state, and without their owner's con-
trol, a sort of trembling, oscillation, or vacillation of the globe may
be manifested, a kind of continual or permanent convulsion, in con-
sequence of which, most frequently, little lateral, sometimes, though
rarely, up and down, movements are given to the globe of the eye.

" The expression of the eye calls for special attention. The eyes
are sometimes lively and brilliant, sometimes sad and glazed.
Often they have a soft, dreaming look, expressive of vacuity,
uncertainty, or nonchalant calmness ; at other times they become
animated from the slightest cause, have a lightning glance, are
haggard, insolent, full of audacity, fixed, and inquisitive. Each of
these expressions has a different intensity and duration, and re-
sponds to very different situations.

" In accordance with the protrusion or sinking of the globe of
the eye, the eyelids take shape — they are swollen or oedematous ;
have at times a very pallid color, at others become red or blue ;
and exhibit wrinkles of diverse shape and in variable number.
They may likewise be agitated by convulsion, or show a very
significant immobility. Each lid may differ in the length and
abundance of its lashes ; the ciliary margin may be the seat of
inflammation due to nervous excitation. Occasionally the eyebrows
are of fantastic shape. Sometimes little noticeable, sometimes
strongly marked, they stand up on the forehead, or fall back on
the eyes, curling after the style of moustaches. The shape of the
nose has a pathological signification which should not be passed
over in silence. Besides the color and swelling or thinness of the
fleshy parts of the proboscis, a careful examination should be made
of the more or less easy dilatation of the nostrils, their mobility or
fixedness, the tension or the retraction of their walls. Dr. Hoefling
attaches much more importance to the signs furnished by the nose
than to those given by the eye. The mouth presents for examina-
tion the state of the lips, with their relative situation during repose,
their volume, color, dryness, or humidity. The motion of the
mouth has a very important signification, and leads to a notable
modification of the commissure of the lips. Permanent contractions,
alternations of tension or relaxation, partial or general tremor, the
diverse forms of spasm, deserve much attention. These manifesta-
tions have a very decided meaning.

" What we have just said relative to the motion of the mouth
286

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 348.

and lips is applicable to all the locomotive system of the face.
Tension or relaxation, continual or alternate movements, immo-
bility, may appear in various grades in each of the facial muscles.
To facial symptomatology must be added also an examination of the
parotid and auricular regions. We should carefully note the pallor,
redness, and swelling of the cheeks, the color, swelling, mobility,
or immobility of the ears, as well as the appearance of sanguineous
tumors of the auricle.

" Dr. Morel attaches much importance to the way in which the
ears are fixed, and makes this one of the characteristic signs of his
types of degeneracy.

" It is of some importance to let this physiognomical survey em-
brace the carriage of the head, which is often noticed to be variable,
according as the individual has a more or less favorable opinion of
his personality, and from numerous other causes."^

2. Physioal conditions.
§ 347. Somatic conditions, as has been seen,^ though not neces-
sary to prove insanity, as insanity may exist when the
bodily functions are in undisturbed health, are often conditions
important tests of an insane state, and the more so be- por*t°nr'
cause they cannot be readily feigned. Among these
conditions may be again enumerated disturbances of the motor
spheres, of the vegetative organs, of sleep, of the pulse, and the
peculiar condition of the evacuations, e. g.^ increased phosphate in
the urine. Sleeplessness is a condition which it is peculiarly diffi-
cult to simulate.

(a) Injuries to brain.
§ 348. Science, says Dr. Liman,' whose judicious observations
have already been frequently cited, teaches that mental iQgaujty
disease is not an abstract entity, but is conditioned by notaneces-
brainular and nervous disease, by which psychical func- quence of
tional disturbances are generated which are subordinated ^^^^^ '
to the laws of the physical disorder. The brain may be idiopathi-
cally diseased, or the aflfection may be sympathetic. Under favoring

* Am. Joiirn. of Ins., October, 1863. * Liman's Casper, Berlin, 1871, p.
2 Supra, § 329. See an article in 434.
18 Journ. Ment. Sci. 390.

287

§ 349.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

circumstances, this sympathethic brainular action may be produced
by every form of disease (e. g., typhus, cholera, exanthematic
fever, pneumonia, erysipelas, acute rheumatism, abdominal and
genital diseases, heart disease, tubercular affections) as well as by
those physiological causes which are generally specified in the
books, viz., puberty, the menses, pregnancy, delivery, lactation,
involution, old age, and by psychical causes, such as passion, mental
shocks, etc. Experience, however, teaches that nervous diseases,
superinduced on a favoring psychopathical disposition, not only are
of peculiar moment in inducing mental disorder, but form a basis of
experience on which rests the setiological classification of psychical
disease. But it is nevertheless important to recollect that while
these physical and nervous disorders serve to explain the nature
and strengthen the proof of insantity otherwise substantively proved,
they do not as a necessary sequence prove insanity, and frequently
exist without it. To this it may be added that this doctrine of
necessary sequence in such cases is fraught with several deleterious
results. First, its acceptance would be cruel to the persons labor-
ing with the physical and nervous complaints in question, for, if not
leading to their sequestration from society as persons non compotes
mentis, it would deprive them of the power of business self-support.
No one could enter into contracts with them : no one could take
business paper executed by them : no one could treat them as
vested even with that testamentary power which, as has already
been seen, forms one of the few means of insuring respect retained
by the aged and forlorn. And, secondly, such persons would form
a dangerous aristocracy, exempt from the operation of penal laws.
Insanity being a material and necessary result of disease, if dis-
eased, they would not be penally responsible for crime. ^

§ 349. Brain disease. often displays itself in moral and mental

transitions which are not only conspicuous and startling,

faTe™n?ay l^^t comparatively rapid and complete. Sometimes,

develop however, the causes work more slowly. There is no im-
rapidly. ' , •'

mediate and complete revolution of character ; but there

is a gradual protrusion of some specific peculiarities and depression

of others. The first change may be likened to a great terrestrial

catastrophe, a cataclysm by which the whole face of nature is

' See supra, § 336.

288

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 351.

changed : the second to the process of transformation produced by
the gradual rising of the sea, by which valleys are filled up and
mountains depressed. Sometimes the process of transformation, in
the second case, is very slow, and yet, nevertheless, is distinctly
traceable to physical causes. " The patient," says Krafft-Ebing
(1872)/ a very high authority in psychological medicine, " becomes
(after injuries or shocks to the brain) excitable, violent, brutal, quar-
relsome, prone to excesses in haccJw et venere, and approaches to
the ideal of a maniacal moral insanity. By many, particularly in
those in whom delirium subsequently breaks out, a qualified maniacal
exaltation shows itself in the form of unsteadiness, of passion for
travel, of inclination to a vagabond life. These are generally the
antecedents of mania, which begin the process of psychical anoma-
lies ; more rarely, but especially in those cases which terminate in
paralysis, the prodromal symptoms consist in brainular exhaustion,
and express themselves progressively in weakness of memory, dul-
ness, apathy, decrease of self-determining power."

§ 350. The psychical effects, however, as has been just noticed,
may be very slow. Years may elapse from the time of
the injury before the shock displays its psychical conse- in dififerent
quences. Griesinger throws out several very interesting
hypotheses as to the slow processes by which a little apoplectic cyst,
or an ulcer, may work into the soft substances of the brain, until
suddenly occurs insanity or death. Yet there is great reason for
caution when adducing such prior stages as confirmatory of insan-
ity. Often, when insanity is sought to be proved, a scar on the
head is put in evidence. Yet the cases are numberless in which,
particularly in infancy, injuries to the skull have been sustained,
and even severe wounds inflicted, without the mind being subse-
quently disabled.

§ 351. "The element of time," says Dr. Laycock (1871), "is
a very important point in the diagnosis and prognosis of this class
of cases. The progressive degeneration may extend over several
years.

" In July, 1868, 1 saw a captain in the Royal Navy, who, fifteen
years before, when a midshipman, fell about eight feet as he was
descending Table Mountain, Cape of Good Hope. He received a

' Ueber die Gehirn-Erschiltteruug, etc., Erlangen, 1868.

VOL. I.— 19 289

§ 353.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

scalp wound, which bled freely, and he thoucrht he must have been
made unconscious. The surgeon of his ship examined, but found
no fracture, and dressed the wound, which healed well. I found an
extensive scar on the scalp, over the curve of the left parietal re-
gion, and the surface slightly depressed. This had led some to
propose trephining. TAvelve years after the injury he married, and
shortly after had habitual headaches, with mental depression, increas-
ing until he became melancholic. Rest from active duty restored
him to comparative health of both body and mind, but his manner
continued peculiar. He, however, resumed charge of a ship, and
so got involved in harassing and anxious night-duties off the Irish
coast, watching the Fenians. This exhausting work induced a
series of neuroses of the encephalon, which were progressively in-
tensified into structural disease, until (when I saw him) he was
weak of mind, incapable of movement, passed urine and feces in-
voluntarily, and had great difficulty of articulation, as well as an
incapacity to express his ideas by appropriate words, although he
easily smiled and laughed. Early in November of the following
year he had successive fits of convulsions, became unconscious, and
so died, sixteen years after the injury to the scalp."

(5) Anomalies of sensibility, of pulse, of secretions, and of senses.

§ 352. Under the present head, it is proper to notice the im-
portance of the attention of the medical examiner being
health tobe turned to temperament, disposition, and age ; in the case
considered. ^£ females, to the development of the functions of men-
struation, pregnancy, delivery, suckling ;^ to mental characteristics,
powers, and habits ; to the condition in life and profession ; to the
questions of rest and exercise, sleep, and watching ; to excessive
evacuations, particularly if connected with sexual gratifications ; to
sexual abstinence ; to bodily injuries, besides those of the head, such
as diseases of the heart, hemorrhoids, obstructions of the abdomen,
and to cutaneous diseases.

§ 353. " Symptoms of bodily disease ascertained by
•'^^^t^er^^^ the state of the pulse, the digestion, the secretions, etc.,
parts of the cannot naturally, in any case, be taken as proofs of

body of , ,. . , T ...

great value mental disease ; the diagnosis depends essentially and

' On tins point Dr. Storer's treatise on " Insanity in Women" will be found
of much value.

290

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 354.

exclusively on the mental symptoms. Nevertheless, those symptoms
of diseases in other parts may be of great value. From them we
are enabled to answer the question, Is the individual in a state of
general ill-health ? If, from these symptoms, this can be said with
certainty — if, on the one hand, a striking mental change is observed,
or very suspicious behavior, and, on the other, a general morbid
state of the organism be present — it becomes highly probable that
both series of phenomena are related to each other, that is, that the
mental change is itself morbid. As, however, insanity depends
essentially on an affection of the brain, there are none of all the
psychical symptoms, not in the narrow sense, of greater significance
than certain phenomena of disturbed (irritated, depressed, etc.)
cerebral function.

" Therefore anomalies of the central sensorial function, halucin-
ations, etc., are of such extraordinary value, and violent headaches,
sleeplessness, fainting, anaesthesia, changes in the pupils, all con-
comitant convulsions, and paralyses, are also of such great import-
ance, in the diagnosis of insanity.

" If these symptoms can be traced to an affection of the brain,
and if we can, by these, prove that at all events a cerebral affec-
tion is present, it is clear that in few cases we can doubt that the
suspected psychical symptoms depend also upon the cerebral affec-
tion ; at least the opposite can seldom or never be shown. On the
other hand, the non-appearance of such further symptoms, and the
absence of all physical disorder (of the pulse, digestion, etc.), can
never be taken as proof of the absence of a mental disease (that
is, a cerebral affection of which the actual symptoms are exclusively
psychical); we frequently meet with cases of undoubted mental
disease, especially chronic cases, in which the bodily functions re-
main unimpaired."^

§ 354. That insanity may be one of the incidents of physical
disorganization, is illustrated by a case mentioned by
Wigan in his remarkable work on the duality of the with physi-
mind.2 " The gentleman held a situation in which he had ganizaUon.
many younger persons under him. I purposely leave
the designation obscure. He had risen to the head of the office by

' Griesingor's Mental Pathol., Syden. ^ a New View of Insanity, etc., by
ed. (1867) § 73. A. L. Wigan. London, 1844, p. 81.

2yi

§ 354.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

long and exemplary services. He was a widower, and had a con-
siderable family, all of whom, however, died in their youth. He
exercised a parental control over his subordinates, and was ex-
tremely respected by every one who knew him. His salary was
ample, his excessive benevolence had, however, always kept him
poor, but, as his style of living did not imply the expenditure of
more than half his income, he had the reputation of wealth. Gradu-
ally, towards the age of sixty, this gentleman became garrulous and
light in his conversation, and the others in the office suspected him
to have been drinking. He had many rebuffs from the persons
under his command, but this in no degree changed the indecorous
levity of his conversation, which had formerly been remarkably
dignified, and as reserved as was compatible with his excessive
benevolence of disposition. Months and months passed on, his lan-
guage became gradually worse, and at last was of the most depraved
obscenity. This shocked and disgusted his juniors, and he was
seriously threatened with exposure by them. The propensity was
checked for a while, but after repeated offences and repeated for-
giveness by the young men, they made a formal complaint to his
superiors. The offender was taken to task very seriously, but, as
the young men had given rather a lenient representation of his con-
duct, he was permitted one more trial, with the assurance that his
next offence would be followed by his dismissal. There was soon
an opportunity of putting the threat in force, for his conduct and
conversation became more and more gross and disgusting. He was
dismissed. Having made no provision, he suddenly found himself
utterly destitute, but did not make known his position. He packed
a bundle of necessary clothes, put in his pocket whatever money
and trinkets he possessed, and Avandered about the counti'y w^ithout
aim or object. Every one lost sight of him for two or three months,
when he was found in a remote part of the kingdom literally dead
on a dungJdIl, where it is supposed he had laid himself down for
warmth ; his money was gone, and, from the state of the stomach
and intestines, it is probable that he had died of want of food as
the immediate cause, but, on examining the interior of the skull,
there was found extensive softening and disorganization of the left
cerebrum, and the other was not free from disease. He could not
. 292

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 356.

have lived long; though, under proper care, the disease would not
have heen immediately fatal. "^

§ 855. A diminution of sensibility, says M. Falret,^ is not of com-
mon occurrence in mental diseases, its exaltation being
much more frequent. It is proper, however, to state sensibUity
that deranged persons are generally as sensible of tem- ^^^^'^ ^^'
perature and impressions as persons ordinarily are.
Lesions of the sensibility, however, are observable in all kinds of
insanity, and especially in those cases in which mystical ideas are
predominant, in demonomania and paralytic insanity. General
insensibility has been known to take away from some madmen the
sense of their own existence. M. de Foville cites the example of
a man who thousht he had died at the battle of Austerlitz, at which
he received a severe wound. His insanity consisted in his inability
to recognize and feel his own body. When any one inquired after
his health, it was customary for him to reply, " You ask me how
father Lambert is, but father Lambert is no more ; he was killed
by a bullet at Austerlitz. That which you see here is not he, but
a machine which they have made to resemble him, and which is
very badly made, so try and make another." Never in speaking
of himself, did he say " me" (moi), but " that" (cela). This man
fell several times into a complete state of immobility and insensi-
bility, which lasted several days. Sinapisms and blisters applied
to guard against these accidents never produced the least symptom
of pain. He often refused to eat, saying, " 9a n'avait point de
ventre."

Esquirol was unable to discover any sign of pain in passing a pin
through the skin of the arm of a demonomaniac, who asserted that
he no longer felt anything, and who imagined that his body had
been carried away by the devil.

§ 356, " Diminution or complete suppression of the sensibility of
the skin to impressions of temperature and of pain is by no means

' Generally, of all the causes of men- always to be found in these alterations,

tal alienation, the most frequent, with- — .7. Briand, Med. Leg., p. 544. Paris,

out doubt, are cerebral affections or 1852.

some alteration of the encephalic 2 Lecjons Cliniques de I'Alienation

organ, and perhaps we should agree Mentale, par M. Falret. Septiemo

with Haslam in saying, that the primi- le(,"0n, p. 185, Paris, 1854.
tive cause of mental derangement is

293

§ 357.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

frequent, still less is it general in insanity. We find, on the con-
trary, in some instances an excess of sensibility to pain (Esquirol
relates such a case), and it is remarked that in asylums in winter
the patients, with very few exceptions, constantly seek the warmth.
Nevertheless, cases of transient and persistent cutaneous anaesthesia
(as already shown in the foregoing), and of analgesia, are some-
times seen, particularly in states of melancholia and dementia, and,
confined to more local limits, it is also frequent in hysteria. A
careful investigation of the cutaneous sensibility in the various parts
of the body should always be made."^

§357. "Rochoux (sitting of the Academic de Medecine, 22d
^ December, 1840) communicated a case of accident which

Instances 01 ' ^ . . .

want of occurred through want of sensation m the patient. A

patient in Bic^tre, while no one was in the room, laid his

head on the red-hot iron of the stove, and put his arm into the midst

of the fire. The strong smell first drew the people near ; the

patient was quite unconcerned, and throughout gave no sign of

pain, though the arm was burned to the bone.

" In the ' Zeitschrift fur Psychiatric, '^ there is an example of
voluntary self-burning by a melancholic patient. He was quite
happy, although legs, thigh, and nates were burned, so that even
the bones were charred.

" A patient in Bedlam, mentioned by Morison, laid the back of
his head upon the fire till the quarter part of the cerebral coverings
were burned ; he, however, recovered.

" Mich^a^ cites a number of cases in Avhich melancholies suffered
mutilation without pain (analgesia), and it is interesting that this
state often exists also in delirium trauraaticum (nervosum), so that
the patients tear ofi" the bandages, and use most regardlessly the
broken limbs (Dupuytren, Klose).

" Snell,* in 180 patients, found the skin quite anaesthetic in 18(?),
and in 6 there was analgesia ; the anaesthesia in states of excitation
and depression Avas present always in cases presenting little hope
of recovery. A very remarkable case is communicated by Renau-
din,' of a boy who had hitherto conducted himself perfectly well,

• Griesinger's Mental Pathol., Syden. '•Zeitschrift fur Psychiatrie, 10,

ed. (1867), § 50. 1853, p. 213.

2 11, 1854, p. 717. ^ Moreau, Psycliologie Morb. p. 312.

3 Gaz. Hebdom. 18.56.

294

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 358 a.

and all at once exhibited the worst desires and most reprehensible
behavior. He was not entirely insane, but the whole cutaneous
surface became sensationless. This state was intermittent, and,
when it went off, the patient became again quite orderly and obe-
dient. Simultaneously with the anaesthesia the worst desires, even
desire to murder, returned. In general paralysis, too, there is
sometimes present an evident diminution of the cutaneous sensibility.
Diminution of the sense of smell may be assumed in those patients
who would amuse themselves with their excrements. All these
anaesthesia must have a central basis. "^

§ 358. In regard to anomalies of general sensibility associated
with no illusion, there are madmen Avho appear insensi-
ble to the ordinary causes of pain. Esquirol speaks of ity^to coida
an idiot girl who was in the habit of scratching a lump frequent

° , . symptom.

she had upon her cheek, and did not stop until she had
perforated it, and, after having performed this perforation, she
enlarged the wound by continually pulling at it with her finger.
Deranged persons often cut themselves in different parts of the body
without appearing to suffer. But the greatest phenomenon of in-
sensibility is the indifference with which persons afflicted with in-
sanity support cold. They have been known to expose themselves
in the open air, to sleep upon the ground, flagstones, and the floor,
when the ice and snow caused persons warmly clad to shiver. And
imprudences like these appear to have a less dangerous influence
upon the insane than upon others. This fact, however, has been
much exaggerated, and in many instances the ordinary effects pro-
duced by cold are observable in the deranged. These unfortunates
are so exposed to freezing, that in many establishments there is an
express law to visit, morning and evening, and wrap in flannel the
feet of those whose condition causes these dangerous consequences
to be dreaded.2 Some show themselves equally indifferent to heat.
There are those who walk and sleep entirely naked in clear sun-
light upon the hottest days, and who can look fixedly for a long
time upon the sun without being dazzled by it.

■ Griesinger, ut supra. Manuel de Med. L^(j. M. Orfila, tome

2 "Dans le plus haut degre de la i. p. 377. Dr. Rush makes iiisensibil-

manie les malades oublient leurs ity to the weather, particularly cold, a

besoins, et sentent a peine, ou pas du marked test.

tout, la doideur, le froid et le chaud.^'

295

§ 359.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

§ 358 a. Hunger and thirst are usually intense, digestion varies,
other phys- while the bowels are almost invariably obstructed. The
icai tests. gj^j^^ jg usually dry, rough, and inactive.^ The presence
of almost all persons of unsound mind is distinguished by a peculiar
specific smell.^

The genital functions are ordinarily preserved by the insane ;
sometimes, indeed, their activity is increased, although the mental
disease may not be of erotic origin. This super-excitation of the
genital organs, independent of physical or moral erotomania, is
particularly observable in agitated delirium ; whilst in despondent
delirium they are inactive, at least if it have not love for a cause or
object. The cases are rare, however, where the sexual organs are
attacked with insensibility or impotence, except in general paraly-
sis. The aptitude of man and woman for the venereal act and for
fecundation is not lost : though in insanity as in sound mind, the rapid
succession of ideas, the violence or tenacity of pre-occupations for-
eign to amorous desires are capable of bringing on an inactivity of
the genital functions.

§ 359. The j92<-Zse forms no test.^ M. Jacobi has instituted ex-
periments, in a large number of cases of the different
The secre- iQxva's, of mental unsoundness, indicating at the same time

tions a test, _ _ ' ° ^

but not the the relative pulsations of the several arteries, auscul-
tating the heart, and counting the number of inspirations
and expirations. The attempt to deduce a fixed rule, however, was
in vain. " I had the vexation," he tells us, " to see that my
researches, so conscientiously made, did not fulfil the end I had
proposed ; and I saw that it was impossible to establish the neces-
sary connection between the different pathological states of the
intellect and feelings, and the observations I had collected on the
state of the circulation, the respiration, and the temperature of the
skin, in the insane."*

' See an article by Dr. Fevre, An- Semiologica Somatica, Bonn, 1828, § 15.

nales Medico-Psydiologique, 1876. Burrow's Commentaries, p. 297. Azi

2 Compare Hill's Essay on the Pre- article by Dr. Laehr, Zeitschrift fiir

vention and Cure of Insanity. Lon- Psychol. 34 Band, 3 Heft,

don, 1814, p. 401. Erhard in Wagner's ^ g^e article 26 Am. Journ. of Ins.

"Beitriigen zur Philosophischen An- 324.

thropologie," vol. i. Vienna, 1794, p. ^ Jacobi, Annales Medico-Psycholo-

111. Milling's Mentis Alienationum giques.

296

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 360.

The secretions, and particularly the perspiration, are imperfectly
performed in the majority of insane cases. In these cases there is
a dry skin of an unhealthy color, and the exhalation of a disagree-
able smell. They do not grow thin, but even become fat, although
eating little, because they perspire badly. They urinate a great
deal, and the passage of urine is frequent, as is common in all
nervous disorders. Constipation is an almost habitual attendant of
the disease.

Without being oppressed, the respiration in the insane is some-
times unequal, hurried, diminished, interrupted, and sobbing. Their
breath is often fetid, and this accidental fetidity, an ordinary symp-
tom of all nervous diseases, frequently announces the approach of
an attack of melancholy, mania, or hysteria.^

§ 360. The most interesting symptoms are found in the various
abnormities of the sensorial system, as manifested in the

, , . . p .11 Abnormi-

excitement, depression, or delirium oi one or the other ties of the
of the senses. An excitement or depression of the sen- gyst^iii^*^
sorial system generally keeps even pace with the mental ™^.^* ^^*®^'-
malady. Before the mental disease breaks out, and
while its advent is indicated by mental and moral excitements, an
enhanced excitability in the sensorial system becomes perceptible,
which, however, where psychical energies are gradually exhausted
by the recurrence and violence of the paroxysms, frequently turns
to an opposite condition, so that the failing, obtuseness, or loss of
one of the senses attends the subsequent progress of the evil. Ac-
cording to Spurzheim,^ the ear is the sense which, of all others,
suffers most among the insane, and there are more deaf than blind
among them. The deliria of the senses, which are either illusions
or hallucinations, are found in every form of the disease ; they
sometimes attack one sense only, sometimes several, and sometimes,
though rarely, all the senses at once.^

' Le(;ons Cliniques de 1' Alienation " For a full account of the illusions

Mentale, par M. Falret. Septieme and hallucinations of the senses we

Lecjon, p. 185. Paris, 1854. would refer the reader to the Lemons

2 Beobachtungen ueber den Wahn- Cliniques sur 1' Alienation Mentale de

sinn. Nach dem Englischen und M. Falret. 3d, 4th, 5th, 16th lessons.

Franzoesischen bearbeitet von Embden, Paris, 1854. Also to the Etudes

p. 81. See Med. Leg., M. Orfila, tome Medico-Psychologiques sur I'Alienation

i. p. 358. Paris, 1841. M6d. Leg., Mentale, par F. E. Renaudin. Chap.

Briand, p. 540. Paris, 1852. 8th, p. 388. Paris, 1854.

297

§ 361.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

Esquirol gives it as the result of his experience^ that when the
alienation of the mind begins, and sometimes a little earlier, smell
and taste have changed, but the deceptions of the ear and the eye
generally characterize the fancies of most madmen. The deliria of
smell are less frequent than those of the other senses, those of taste
are of the most various kind, and those of touch impress the patients
with the existence of attributes in bodies other than those which
they possess. These deliria frequently give rise to fixed ideas ;
particular postures, various attitudes and motions, are observed in
almost all madmen.

§ 301. A change of moral disposition, as will presently be seen,^

^, is one of the first symptoms, other than physical, with

of moral which the disease usually makes its appearance. Ex-
disposition ..,.,. . . ,
notnn- treme irritabinty, proneriess to anger, suspicion, conceal-

"^^^ ■ ment, obstinacy, and perverseness, are common. In re-

gard to the affections, various abnormal impulses and inclinations
are observed : such as fondness or aversion to particular persons,
without any special reason ; disposition to exercise cruelty, murder-
ous desires, a wish to commit arson, or to steal. ^ Memory is gene-
rally good in reference to things occurring during the disease, or to
persons with whom the patient was then connected, but defective or
mistaken as to things Avhich occurred previously,* Of the intellec-
tual faculties not all are uniformly in an abnormal state ; on the
contrary, some functions occasionally improve, thus producing a
complex state of madness on the one hand, and of wit, reflection,
and shrewdness, on the other.*

^ Compare Hagan Die Sinnetausch- Manual de Med. Zitg. M, Orfila. Tome

nngen in Bezugauf Psychologie Heil- i. p. 382. Paris, 1848,

kunde, uud Rechtspflege. Leipsic, 1837. * A great many remember things which

2 Infra, §§ 390-398. occnr ; and after their recovery they

3 See w/ra, §§ 391-398. "A deranged often astonish by observations which
person," says Orfila, " regards with in- they had made at a time when they
difference the dearest objects of his seemed most completely deprived of
aflfections, he thinks no more of them their reason. — M^d. Leg. J. Briand,
or holds them in such aversion as to p. 540. Paris, 1852, See infra, § 410.
repel, injure, and maltreat them. ^ ggg cases collected by Friedreich,
Hatred, jealousy, anger, wickedness, Handbuch der alU emeinen Pathologie,
fear, terror, a disgust for life, a desire p. 189. See infra, §§ 378-385 ; 406-
to destroy and kill, replace the most 409.

equal, calm, and softest nature." —

298

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 363.

3. Hereditary tendency.

(«) Psychologically.

§ 362. By Morel, in his Traite des Maladies Mentales, published
in Paris in 1866, the line of descent in cases of heredi- ^^ <. ^

, , , . Descent of

tary insanity {folie hereditaire') has been traced with insanity,
peculiar delicacy and fulness. The stream is shown universal,
sometimes to change its channel, sometimes to swell as certahied^
it descends — viresque acquiret eundo. In the parent ™ies.
it exhibits itself in the form of extreme nervous sensibility and ex-
citability. The child is the victim of hallucinations, if not of mania.
In remoter descendants are exhibited imbecility, cretinism, united
with physical degeneracy. No doubt cases are found where a law
of deterioration such as this is seen progressing with apparent cer-
tainty in its downward path. But, like all other cases of assumed
psychical law, the theory breaks down when we attempt to establish
it as a universal rule. Lord Chatham was at certain periods of his
life hypochondriac if not insane ; yet his son William Pitt was re-
markable for his intellectual equipoise and exactness. Of the pro-
lific family of George III. no one inherited his insanity. Innu-
merable cases of nervous excitability and eccentricity present them-
selves to us when we take up such works as Walpole's Correspond-
ence, or when we look back even at those who were the parents of
our own contemporaries ; yet rarely indeed do we find instances of
the development of such excitability and eccentricity, from gene-
ration to generation, into lunacy and idiocy. Yet, at the same
time, of a large proportion of lunatics, as is elsewhere stated, the
immediate ancestors were affected with some phase of mental
disease.^

§ 363. Of the hereditary insanity — -folie hereditaire — which is
thus assumed. Morel gives the following symptoms :
Early or disproportionate intellectual activity accom- ot^hered^^
panied by deficiency in higher moral power — the early J'f^'y in^*^!!-
development of instinctive impulses — tendencies to cruel-
ties— irritability, bizarre whims, fanciful caprices, and business
heedlessness, as among the accompaniments of the approach of
puberty. So also are to be reckoned, as general symptoms, ex

» See Heredity, from the French of T. Ribot. London, 1875.

299

§ 364.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

travagances of expression ; periods of ennui, in which labor is

odious, interchanged with those of intense and feverish activity.

It is remarkable, however, that these symptoms are rarely to be

observed among the children of the poor. They are rather the

incidents of the spoilt children of fortune, the results of want of

hard home-discipline. And in order to make them comparatively

ungovernable, it is only necessary to withdraw the discipline the

state exercises through its penal laws. If we concede that such

persons form a hereditary class who are not to be restrained by

fear of punishment because to punishment they are not amenable,

we will do much to establish in them, in the shape of uncontrolled

passions, the very mental disorder which the speculative theorist

declares to be their predestined lot.^

§ 364. At the same time there is no question that insanity runs in

families. " A considerable portion," to quote from an
Insanity '■ ' ^ _

often intelligent note to the namphlet report of the trial of An-

liGr6Clit3.rv

drews, in Massachusetts, in 1868, ''of those who have
suddenly appeared to be insane, were of unsound cerebral con-
stitution by inheritance, their parents or ancestors having been
insane." Tuke, referring to this class of transient cases, says:
"An inquiry into the patient's history will generally detect a change
in character ; this, however, obviously cannot be looked for in cases
where mental disorder can be traced back into infancy, or where the
intellectual and moral defects are congenital. "^ Again he adds :
" In some persons there is rather a congenital proclivity to disease
than the actual disease itself, and in these, a circumstance which,
in persons without that proclivity, would produce no result, will call
into action abnormal, that is to say, truly diseased, mental mani-
festations, although they may be only functional and subside when
the exciting cause is removed."^

Devergie says: "If we examine the ancestral history of the
families, on the paternal or the maternal side, of these transitory
maniacs, it is not rare that one or even many members of the family
have been insane for longer or shorter periods." He quotes the
case of one of these patients who had committed homicide in a
transitory paroxysm, " in whose family one maternal great-uncle

' See supra, §§ 146-160 ; 195-199. 3 Bucknill and Tuke, Insanity,

2 Bucknill and Tuke, Insanity, 201. 186.
See an article in 2 Brain, 491.

300

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 366.

died insane ; one paternal aunt killed herself, and another relative
on the mother's side was known to have been troubled with eccen-
tricities (bizarres {dees') all her life."^

Castelnau, describing one who, in a momentary paroxysm of
mania, had killed another, said, " that her mother suffered from
grave disease of the cerebro-spinal system, and had hemiplegia
previous to this daughter's birth. Her grandfather was insane,
and her brothers were strongly impressed with the character of her
ancestors."^ Of another he says the grandmother and great-grand-
mother were insane, and the father was considered by the neighbors
as not sane.^

§ 365. " In a great majority of cases," says Dr. Wood, "insanity
is produced by exciting causes acting upon a predisposition to the
disease. Inhei'itance is the most frequent source of this predispo-
sition— perhaps more frequent than all others put together. Even
a particular form of insanity is often inherited ; and it has been
noticed that the attack is apt to come on at the same period of life
in the parent and his offspring. The tendency to suicide not unfre-
quently descends from parent to child. It is thought that children
born before the occurrence of insanity in the parent are less liable
to be affected than those born subsequently."*

§ 866. "Although at the first glance," says Renaudin, " man
appears to possess an independent existence, isolated Renaudin's
from his birth from those who begot him, although there exposition,
is but little apparent relation between his ripe age and first infancy ;
it is not the less true, that, behind the characters peculiar to his in-
dividuality, we can discover certain typical signs, some of which
betray his nationality and others relate to his family. These typi-
cal signs are to be encountered not only in his physical organization,
but are also found in his moral idiosyncrasies, and, if tradition is of
any force as regards manners and customs, inheritance is certainly
of great value as relates to the tastes and habits. It is, in fact,
manifested in the transmission from generation to generation of the
most inveterate maladies, before which art is obliged to confess its

' Ann. Hyg. et Leg. Med. xi. 2d ser. ^ ibia. 443.

312. See Rogers on Hereditary Ner- ■• Practice of Medicine, by Prof. G. B.

vous Diseases, Papers Med. Leg. Soc, Wood, M.D., voL ii. p. G72, Pliila.

N. Y. 1874. 1849. See report of Thute's Case, 18

2 Ann. Hyg. xiv. 442. Journ. Ment. Sci. 450.

301

§ 366.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

weakness ; and it is with difficulty prophylactic measures ward oflf
the sad result. In mental alienation, also, experience furnishes us
daily proofs of this transmission, of which it is essential to study
the mode.

" The question whether this transmission is direct, or results
from a predisposition whose development is due to the influence of
an occasional cause, or, in other words, whether by itself it is an
essential condition of causality, is no longer doubtful, and we now
possess numerous examples not only of hereditary transmission, but
also of an hereditary accumulation of the morbid predispositions.
This is particularly the case in families where wedlock is limited to
a small circle of fortune and social fitness. The royal families of
many countries have not escaped this law. We see generations of
insane succeed each other with an unyielding regularity, and there
are families which in this relation seem pursued by a desolating
fatality.

"Aside from idiocy and imbecility, which show themselves a
short time after birth, the predisposition does not ordinarily show
itself until the individual has reached a certain development — that
is to say, when all the conditions of causality are reunited. This
native predisposition does not suppose that those that preceded
were insane ; it depends, above all, upon the conditions in which
they are placed and which react upon the phases of their existence.
■This predisposition is also progressive from one generation to ano-
ther ; and it is in this manner that great social commotions and
certain epidemics contribute to the production of insanity, in leaving
after them deep distress or in producing a disordered exaltation.

"All causes capable of altering the public health have a marked
influence upon the immediate production of insanity or upon the
hereditary transmission of its predisposition. The unhealthiness of
dwellings and insufficiency or bad quality of food are so many
circumstances influencing its production, and to which municipal
governments should pay serious attention. It is on account of these
and other analogous causes that cretinism and idiocy are endemic
in certain localities, and that this influence is exercised not only on
natives, but also upon those establishing themselves there.

" The mode of life of the parents, and the diseases they have
had are no less efficacious in producing a predisposition to mental
unsoundness. If insanity has existed in those that preceded, the
302

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 567.

chances of a direct transmission are much more probable. This
predisposition is sometimes so marked as to be in some measure
the only cause. Among the circumstances most likely to produce
an hereditary predisposition, we should mention drunken habits in
the parents.^ Many indeed, are the cases of idiocy and imbecility
which owe their situation to this cause. Many generations thus
suifer the punishment inflicted for the faults of one alone.

" The hereditary predisposition presents numerous varieties in its
evolution. Many members of the same family are free from mental
unsoundness ; and one only becomes insane. In another the in-
heritance shows itself from mother to daughter as a consequence of
parturition. This predisposition sometimes consists only in the
peculiarity of character, which drags a man towards a precipice
which conducts irresistibly to insanity. "^

§ 367. Dr. Thomson, surgeon to the General Prison of Scotland,
as cited by Dr. Maudsley,^ gives in this connection the crime he-
result of his extensive experience in a very striking reditary.
shape. He declares that crime is in a large degree hereditary in
families ;" though this, it ought to be observed, is to be in many
cases accounted for by the parents' bad example, and the evil asso-
ciations of home. But independently of this, there are certain
nervous and physical disorders, traced by this experienced observer,
which cannot be so explained. Thus epilepsy, dipsomania, spinal
deformities, stammering, imperfect organs of speech, club-feet, cleft
palates, harelip, deafness, paralysis, and similar marks of physical
degeneration, are specified as accompanying this hereditary line of
abnormal guilt.

' See, Alcohol, its Action and Uses, in that year, there were six convicts of

by Dr. Richardson. Lond., 1875. Asto one family; that at the same time

failure of English legislation to restrain there were four brothers of one family,

drunkenness, see an article in the and three of another family, imprisoned

Edinburgh Review (Oct. -Dec. 1&79), as convicts in that institution. Lucas,

p. 134. in L'Her^dite Naturelle, tells us that

2 Etudes Medico-Psychologiques, par 279 cases of mental disease, accompa-
L. F. E. Renaudin. Chap, ii. p. 33. nied more or less with moral obliquity,
Paris, 1854. See "The Jukes," by R. were to be traced to the mother. Sir
L. Dngdale, 3d ed., N. Y. 1877. Henry Holland, in his medical notes,

3 Body and Mind, London, 1870, p. informs us that Oxford, who fired at
66. the queen, his father, and grandfather,

■• It was stated in 1881 that in the all believed themselves to be St. Paul.
Eastern Penitentiary in Philadelphia,

303

§ 369.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

Nervous
diseases
may traus-
mit mental
derange-
ment.

§ 368. Dr. Maudsley, to this and similar statements, adds : " I
could not, if I would, in the present state of knowledge,
describe accurately all the characteristics of the insane
neurosis, and group according to their affinities the cases
testifying to its influence. The chief concern now with
its morbid peculiarities is to point out, first, that they
mark some inherited fault of brain-organization ; and, secondly, that
the cause of such fault is not insanity alone in the parent, but may
be other nervous disease, such as hysteria, epilepsy, alcoholism,
paralysis, and neuralgias of all kinds. Except in the case of suicidal
insanity, it is not usual for the parent to transmit to the child the
particular form of mental derangement from which he has suffered ;
insanity in the parent may be epilepsy in the child, and epilepsy in
the parent, insanity in the child ; and in families where a strong
tendency to insanity exists, one member may be insane, another
epileptic, a third may suffer from severe neuralgia, and a fourth
may commit suicide." Nervous disease, declares this eminent
physician, is a veritable Proteus, sometimes skipping generations,
and sometimes displaying itself in several contemporaneous mem-
bers of one family in the most capricious and dissimilar forms. ^

§ 369. In regard to idiocy, the facts are very strik-
parcnts i^gv "Suffice it to say," we are told by Dr. S. G.
caiiseof^ Howe, chairman of the Massachusetts State Idiocy Com-
idiocy. mission, in a very luminous report, submitted in 1848,

' See also on this point essays by
Dr. Stephen Rogers, in 3 Hammond's
Journ. Psych. Med. 625 ; Papers Med.
Leg. Soc. N. Y. (1874) p. 74; and by
Dr. O'Dea, in 4 .Journ. Psych. Med. 28.
See, generally, the West Riding Asy-
lum Reports. It was stated in a Boston
daily paper of April, 1872, that a gentle-
man was then sometimes seen in New
York, the pupils of whose eyes instead
of being round are of the form of a key-
hole. He has a son with precisely the
same anomaly. In consequence of the
aperture being very large, and without
a muscular apparatus for contracting
according to the quantity of light the
organ can bear with impunity, as in

804

ordinary eyes, they are obliged to knit
their brows and partially curtain their
eyes by closing the lids, otherwise the
retina would be overpowered and per-
haps paralyzed by impinging rays.
Albinos transmit the congenital defect
of their own optics to their children in
the proportion of one to about five.
That is, in a family of six children one
will generally have red pupils. They
see best in an obscure light, because
the pigment which absorbs all the rays
not required for distinct vision is want-
ing in them. Rabbits, especially white
ones, are albinos, and so are many va-
rieties of parrots.

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 370.

" that, out of 420 cases of congenital idiocy examined, some informa-
tion was obtained respecting the condition of the progenitors of 359.
Now, in all these 359 cases, save only four, it was found that one
or the other or both of the progenitors of the unfortunate suiferers
had, in some way, widely departed from the normal condition of
health, and violated the natural laws."

"We have no doubt," says a late eminent physician, "that
various immoral and vicious practices ought to be ascribed to in-
sanity. When periodic insanity has shown itself in a large family,
it is probable that some members of the family will evince a pro-
pensity to thieving or swindling. And, when more children than
one of the same parents, bursting through all the restraints imposed
by carefully-instilled principles and established habits, engage in
swindling transactions, it will often appear, upon inquiry, that in-
sanity has generally broken out in that family."^ And the same
high authority tells us that in families where insanity prevails with
the progenitors, he has known two, three, or four children of the
same parents become deranged. One instance in particular he
dwells upon, in which, among a family of twenty persons, the
children of a brother and of two sisters, ten were afflicted with
insanity.^

§ 370. An interesting table, originally published in the London
Quarterly Review,^ and indorsed by Dr. Winslow,* will show the
importance of this inquiry.^

• Essays on Partial Derangement in by Francis Galton, F.R.S., etc., 8vo.,

Supposed Connection witli Religion. London, 1869." The following obser-

By the late John Cheyne, M.D. Dub- vations of Mr. Darwin are directly in

lin, 1843. point: —

2 As to the marriage of near rela- " When we reflect that certain extra-

tives, see The Marriage of Near Kin, ordinary peculiarities have thus ap-

A. H. Huth, London, 1875 ; articles in peared in a single individual out of

48 Westminster Rev. 299 ; Fortnightly many millions, all exposed in the same

Rev., July, 1875. country to the same general conditions

^ No. 163. of life, and, again, that the same ex-

< Lectures, etc., 150. See Rush on traordinary peculiarity has sometimes

the Mind, 46, where this point is ex- appeared in individuals living under

amined. widely different conditions of life, we

6 On the general subject of the he- are driven to conclude that such pecu-

redity of special moral and intellectual liarities are not directly due to the

traits, see " Hereditary Genius, an in- action of the surrounding conditions,

quiry into its laws and consequences, tut to unknown laws acting on the

VOL. I.— 20 805

§ 371.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

§ 371. Dr. Steinau, in his Essay on Hereditary Disease, men-
tions a very interesting incident bearing on this point. ^
hereditary " When I was a boy, there lived in my native town an
criminal ^i^ j^^g^j^ named P , who was such an inveterate

propensity. '

thief that he Avent in the whole place by that name ;

people speaking of him used no other appellation but that of The
Thief, and everybody then knew who was meant. Children and
common people were accustomed to call him by that name, even in
his presence, as if they knew not his other name ; and he bore it
to a certain degree with much good-natured forbearance. It was
even customary for the tradesmen and dealers, who frequented the
annual fair in the place, to enter into formal treaty with him, that
is, they gave him a trifling sum of money, for which he engaged
not only not to touch their property himself, but even to guard it

against other thieves. A son of this P , named Charles, after-

wards lived in B during my residence there. He was respect-
ably married, and carried on a profitable trade which supported
him handsomely. Still, he could not help committing many rob-
beries quite without necessity, and merely from an irresistible

organization or constitution of the in-
dividual ; that their production stands
in scarcely closer relation to the condi-
tion than does life itself. If this be so,
and the occurrence of the same unusual
character in the parent and child can-
not be attributed to both having been
exposed to the same unusual condi-
tions, then the following problem is
worth consideration, as showing that
the result cannot be due, as some
authors have supposed, to mere coinci-
dence, but must be consequent on the
members of the same family inheriting
something in common to their consti-
tution. Let it be assumed that in a
large population a particular affection
occurs on an average in one out of a
million, so that the a priori chance
that an individual taken at random
will be so affected is only one in a mil-
lion. Let the population consist of
sixty millions, composed, we will as-

306

sume, of ten million families, each con-
taining six members. On these data,
Professor Stokes has calculated for me
that the odds will be no less than
8,333,000,000 to one that in the ten
million families there will not be even
a single family in which one parent
and two children will be affected by
the peculiarity in question. But nume^
rous cases could be given, in which
several children have been affected by
the same rare peculiarity with one of
their parents ; and in this case, more
especially if the grandchildren be in-
cluded in the calculation, the odds
against mere coincidence become some-
thing prodigious, almost beyond calcu-
lation." See also Mr. Gal ton's later
work — English Men of Science : Their
Nature and Nurture. Lond. 1874.

' See Pathological and Philosophical
Essay on Hereditary Disease, p. 19,
No. 21.

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 372.

inclination. He was several times arrested and punished ; the
consequence was that he lost his credit and reputation, by which he
was at last actually ruined. He died while still a young man, in

the house of correction at Sp , where he had been confined for

his last robbery. A son of this Charles, and grandson of the

above-mentioned and notorious P , in my native town, lived in

the house where I resided. In his earliest youth, before he was
able to distinguish between good and evil, the disposition to steal-
ing, and the ingenuity of an expert thief, began already to develop
themselves in him. When about three years old, he stole all kinds
of eatables within his reach, although he always had plenty to eat,
and only needed to ask for whatever he wanted. He therefore
was unable to eat all that he had taken ; nevertheless he took it,
and distributed it among his play-fellows. When playing with
them, some of their playthings frequently disappeared in a moment,
and he contrived to conceal them for days, and often for weeks,
with a slyness and sagacity remarkable for his age. When about
five years old, he began to steal copper coins ; and at the age of
six years he began to know something of the value of money, and
he looked out for silver pieces ; and in his eighth year he only
contented himself with larger coins, and proved to be, on public
promenades, an expert pickpocket. He was early apprenticed to
learn a trade, but his master, being continually robbed by him,
soon dismissed him. This was the case with several other trades-
men, till at last, in his fourteenth year, he was committed to the
house of correction."

§ 372. "Nothing," says Mr. Hill, in his work on crime, "has

been more clearly proved than that crime is, to a con-

. , , , IT • • • I • ^^^ ^^*^h

siderable extent, hereditary — crime appearing, in this hereditary

respect, greatly to resemble pauperism, which, according wUhout' ^
to the evidence of the poor-law commissioners, often "isamty no

'^ _ ' _ defence.

proceeds from father to son in a long line of succession."^
He adduces numerous cases in confirmation of the fact. One of
the most striking applies to the families of three brothers, contain-
ing together fifteen members. Of these, no fewer than fourteen
were utterers of base coin, while the fifteenth, who appeared to be

' Crime ; its Amount, Causes, and 1853, p. 55. See an article in 15 Jouru.
Remedies. By Frederick Hill, Barris- Ment. Sci. 487.
ter-in-law, late* Inspector of Prisons,

807

§ 373.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOaiCALLY.

an exception to his kindred, was, at length, detected in setting fire
to his own house, which he had insured for four times its value.
" Supposing each of those employed in uttering base coin to have
passed only one piece a day, and to have had a career of five years'
duration (which there is reason to believe is about the average),
no fewer than twenty thousand offences might have been prevented
by removing the three brothers permanently from society before
they became fathers of families." The disposition to commit crime
is often unquestionably an incurable form of insanity ; hence, we
read of persons who are all their lives criminals, and only terminate
one period of imprisonment to recommence another. The case of
a woman is cited by Mr. Hill, who continued in a career of crime
for twenty-five years ; and that also of another woman, fifty years
of age, who had already been in prison sixty-seven times. Further-
more, he refers to another example, of a woman who had been in
the police cells, in Edinburgh, at least one thousand times, chiefly
for acts of violence.^ But it should not be forgotten that, unless
there be hereditary insanity, mere hereditary tendency to crime is
no more a defence to crime than is the doctrine of the hereditability
of sin.

(5) Legally.

§ 373. In a legal as well as sl ])sycJiological view, the relevancy
of evidence of hereditary taint has been very ably shown by a late

' Ibid. See The Jukes, by R. L. of these being specifically diseased) ;
Dugdale, N. T. 1877. This careful and the cost to the state in seventy-five
and painstaking research into the his- years inflicted by this single family is
tory of a celebrated family of crimi- estimated by the author at $1,308,000,
nals in New York is deserving of atten- ' ' without reckoning the cash paid for
tion. The author considers the re- whiskey, or taking into account the
markable facts that he has developed entailment of pauperism and crime of
to prove that crime, intemperance, the survivors in succeeding genera-
prostitution, pauperism, illegitimacy, tions, and the incurable diseases,
and the like are all hereditary. Of the idiocy and insanity, growing out of
1200 descendants and collateral rela- this debauchery, and reaching further
tives of the five sisters who founded than we can calculate." Of 540 per-
the family, 140 were criminals and sons related by blood to the Jukes,
oflfenders (this is, says the author, a there were 84 harlots, 60 criminals, 106
low and imperfect estimate), 280 were bastards, 65 diseased (29 syphilitic),
paupers, 60 were habitual thieves, 7 and 95 paupers,
murderers, 50 common prostitutes (40

308

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 373.
eminent ludare.^Iwhose capacity as a mental observer was Legally,

. . • r- evidence of

not less than his ability as a judge. On the trial of the hereditary
issue, the object of which was to determine the validity admissible.
of the will of Captain Arrowsmith, the evidence was
that the deceased was a retired mariner who had attained a com-
petence ; the plaintiff was his sister, his heir by descent, as the last
of her father's issue ; and the defendant, his housekeeper, was his
devisee. The fact in contest was his sanity. There was no evi-
dence of fraud or imbecility ; but the plaintiffs witnesses testified
as to acts of sudden and unprovoked passion, violence, wildness,
extravagance, and eccentricity ; and, in order to corroborate the
inference from them, her counsel offered the deposition of Susan
Arrowsmith, the widow of one of the testator's brothers, that the
testator's father was insane towards the close of his life ; that one
of the testator's two uncles, on the father's side, was insane, and
the other imbecile ; that his two aunts on the same side, and their
children, were insane ; that a son of one of them is in a madhouse ;
and that her own husband was mentally disqualified before his
death. The admission of the deposition was opposed, on the ground
that the legitimate inquiry was into the state of the testator's
mind, not that of another ; and that it did not follow, that, because
the testator's father and his collateral relations were insane, he must
have been so too. The point was elaborately argued on principle
and authority, but the chief justice said : " I admit the deposition
without hesitation, notwithstanding the dicta of Mr. Shelford^ and
Mr. Chitty,^ that it is an established rule of law not to admit proof
of insanity in other members of the family in civil or criminal cases.
Established ! When, where, and by whom ? Certainly not by the
house of lords, in McAdam v. Walker,* the only case cited for it,
for the question there was avowedly dodged. That high court would
not shock common sense by affirming the order of the Scotch court
of session ; nor would it gratuitously reverse it, when the decision
could be safely put on another ground. The authority of a judg-
ment appealed from, and left in dubio, cannot be very great. Sir
Samuel Romilly's argument against the evidence was rested on the
fecundity and interminableness of collateral issues ; and Mr. Chitty

> Gibson, C. J. " Med. Jurisp. 355.

« Treat, on Lunacy, 59. * 1 Dews. Par. Ca. 148.

309

§ 373.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

seems to have had a glimpse of the same idea, when he said the
course is to confine the evidence to the mental state of the party.
But every new fact, though it open a new field of inquiry, is not
collateral. It may bear directly on the fact in contest ; and where
it does so, it is not in the power of the court to shut it out. A col-
lateral issue is such as would be raised by allowing a party to put
a question to a witness, on cross-examination, in regard to a fact
palpably unconnected with the cause, in order to afford an oppor-
tunity to discredit him by contradicting him ; but does not proof of
hereditary madness bear directly on the condition of the mind, which
is the subject of investigation ? What if the point had been ruled
by the chancellor and law judges in the house of lords ? Profoundly
learned in the maxims of law, they were profoundly ignorant of the
lights of physiology ; yet, free from the presumptuousness of which
ignorance is the foster-father, they refused to rush on the decision
of a question to which they felt themselves incompetent. Mr. Chitty
fancifully puts the solution of questions of insanity on the doctrine
of legal presumptions. 'As the imputation,' he says, ' is contrary
to the natural presumption of adequate intellect, the deficit should
be established by direct and positive evidence, and not merely by
conjectural or probable proof.' If that be law, a question of insanity
is the only one in Avhich positive evidence is required, and circum-
stantial evidence to corroborate is rejected. Why is evidence of an
old grudge admitted against a prisoner as a remote proof of malice,
if the remote proof of hereditary insanity may not be given by him
to rebut it; and why should the presumption of sanity be allowed
to overbear the presumption of innocence, the strongest of them all?
I admit that hereditary insanity will not itself make out a case for
or against a member of the family ; but to say that it may not cor-
roborate what Mr. Chitty calls direct and positive proof, without
defining it, staggers all belief. In a measuring cast it ought to
prevail. He says harsh conduct, bursts of passion, or displays of
unnatural feeling will not, of themselves, establish insanity. Be it
so. But, because the springs of such actions are concealed, are
they never to be laid bare, and shown to be seated in the blood ?
When it is admitted by Mr. Chitty and Mr. Shelford themselves,
that insanity is a descendable quality, they give up the argument.
There can be nothing unreasonable in referring wild, furious, and
unnatural actions, not otherwise accounted for, to the aberrations
310

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 373.

of a mind, the reflux of that of a crazy father. Mr. Taylor, a dis-
tinguished lecturer on medical jurisprudence in the Guy's Hospital,
London, says that ' in making a diagnosis of a case of insanity, the
first question put is commonly in reference to the present or past
existence of the disorder in other members of the family. There
can be no doubt, from the current testimony of many writers on
insanity, that a disposition to the disease is frequently transmitted
from parent to child through many generations. M. Esquirol has
remarked, that this hereditary taint is most common of all cases to
which insanity can be referred.'^ M. Esquirol was, in 1838, and
perhaps is still, the principal physician to the hospital for the insane
at Charenton, in France, and a member of the Royal Academy of
Medicine at Paris. His tables of insanity are held in high repute
by not only the physicians of France but of Europe. Well might
Mr. Taylor say that these things ought to be borne in mind by
medical jurists. The knowledge attained by men, of a subject
which they have grappled all their lives, ought surely to prevail
against knowledge gleaned from the hornbooks of a profession to
w^hich the gleaners did not belong. Strange that a source of infor-
mation open to every one else should be closed to those who are to
pass on the fact. Every man has observed that there are families
through which insanity has been handed doAvn for generations ; and
why should the probability of hereditary madness be excluded, when
probabilities in other cases are weighed, especially when it is known
that a proclivity to theft, intemperance, lying, cheating, and almost
all other moral vices, are as transmissible as gout, consumption,
deafness, blindness, and almost all other constitutional diseases ?
It is supposed by the million that insanity is a disease of the mind,
not of the body. Uidiculous ! If it were, it could never be cured;
for the mind cannot take physic, or be separately treated ; yet the
statistics of the insane exhibit a great number of cures, and the
time is fast coming when insanity will be considered the most
manageable disease that flesh is heir to. An objection to an inqui-
sition which does not disclose the specific nature of the ancestor's
infirmity might stand in a difl'erent light; but testimony which brings
the fact of madness home to him ought to be received like evidence
of family likeness, which, though less reliable, was allowed to be

• Taylor on Med. Jurisp. 502.

311

§ 374.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

corroborative proof of paternity in the Douglas Peerage case, in
1767, and again in the Townsend Peerage case, in 1843. Lord
Mansfield said, in the former, that he had always considered like-
ness as an argument of a child being the son of a parent ; that a
man may survey ten thousand people before he sees two faces ex-
actly alike, and that in an army of a hundred thousand men, every
man may be known from another ; that if there should be a likeness
in feature, there may be a difference in the voice, gesture, or other
characters : whereas family likenesses run generally through all of
these ; for that in everything there is a resemblance, as of feature,
voice, attitude, and action. Might he not have added the diathesis
of the brain? He doubtless might, if the point had been mooted.
In prosecutions for bastardy, the practice in the quarter sessions
was, in my day, not exactly to give the child in evidence, but to
put it before the jury, sometimes by the prosecutor, and sometimes
by the putative father. But ancestral irregularity in the action of
the brain is more frequently transmitted than any resemblance in
form or feature ; and it is difficult to imagine an objection to evi-
dence of it for purposes of corroboration."^

§ 374. Taylor thus sums up the recent English cases on this
So in Eng- point: "In the case of Reg. v. Ross Touchet, 1844,
land. tried and acquitted on the ground of insanity, for shoot-

ing a man, Maule, J., held that evidence that the grandfather had
been' insane may be adduced, after it had been proved by medical
testimony that such disease is often hereditary in a family. It was
also admitted in Oxford's case, the prisoner having been here tried
for shooting at the queen.^ This kind of evidence has, however,
been frequently rejected, and it is not admitted in the law of Scot-
land.^ There can be no doubt, from the concurrent testimony of
all writers on insanity, that a predisposition to the disease is fre-
quently transmitted from parent to child through many generations.
The malady may not always show itself in such cases, because the
offspring may pass through life without being exposed to any excit-
ing cause ; but in general it readily supervenes from very slight
causes."*

' Smith V. Kramer, 1 Am. Law Reg. ^ Gibson's case, Edinburgh, Dee.
353. 1844.

2 Law Times, Oct. 26, 1844. * Taylor's Med. Jur., p. 555.

812

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 376.

Evidence
may be
given of in-
sanity of
collateral
relation.

§ 375. Evidence of this class is not to be limited to the imme-
diate relatives of the patient. Thus in Andrews' case,
before the supreme court of Massachusetts, in 1868,
the court admitted evidence of the insanity of the colla-
teral issue of a common ancestor of the defendant three
generations back.^ It is clear that evidence of mental
unsoundness on the part of a brother or sister of the person whose
competency is in question is admissible.^

§ 876. It hag been ruled, indeed, in North Carolina, that where
hereditary insanity is offered as an excuse for crime (the j^. ^^g^ ^^^
case before the court was murder), there must be proof be notorious
that the insanity was notorious, and of the same species as that
with which other members of the family have been afflicted.^

But this decision cannot be sustained. Insanity, it has been well
said, is protean. Sometimes it may be so concealed that it may
escape the knowledge of all but the closest observers. Often, as
has been seen, it changes its form from time to time in the same
individual ; and when passing from parent to child it almost always
varies its type.

1 Andrews' trial, pamphlet, p. 135.
Wh. Crira. Law, § 65 ; R. v. Tucket, 1
Cox C. C. 103 ; R. v. Oxford, 9 C, & P.
525 ; Smith v. Kramer, 1 Am. L. Rev.
353 ; Bradley v. State, 31 Ind. 492 ;
State V. Felter, 25 Iowa, 67 ; Com. v.
Rogers, 7 Met. 500. See also Baxter v.
Abbott, 7 Gray, 81, where the insanity
of uncles was allowed to be shown, and
Com. V. Rogers, 7 Metcalf, 500. So in
Christiana Edmunds's case, in London,
Jan. 1872, the defendant appears to
have been permitted to give proof of
this kind without limit as to degree of
relationship. The law is thus stated
by Judge Thomas in Baxter v. Abbott,
7 Gray, 81.

"We think the practice has been to
admit evidence of insanity in the
family. We think the practice is right
in principle. It rests upon the ground
of the hereditary character of insanity ;
that a predisposition to the disease is
frequently transmitted from parent to

child. With such predisposition the
malady may not show itself in the
child, for the child may not be exposed
to any exciting cause. But, with such
hereditary taint, insanity supervenes
from slight causes — causes apparently
wholly inadequate to affect the mind
without the predisposition. In making
a diagnosis of such a case, we suppose
that, among the first questions which
would be put, would be the question
whether the parents of the patient
were or had been insane. With the
fact that father or mother or either of
them had been insane, that ihemsanity
had appeared in them at about the same age,
and in the same form, its existence in the
child is more probable, and is believed on
less perfect evidence.'''' S. P. People v.
Smith, 31 Cal, 466.

2 People V. Garbutt, 17 Mich. 9.

' State V. Christmas, 6 Jones (N. C.)
471.

313

§ 378.] MEXTAL IJNSOUlSrDNESS CONSIDERED PSYCHOLOGICALLY.

§ 377. But the proof of hereditary insanity can only be admitted

as cumulative evidence, and the insanity of ancestors is,

relatives no by itself, no defence.^ Evidence that certain causes

de ence, niicfht induce insanity is not admissible without layinsi;
per se. ^ J jo

or offering to lay a basis of proof to show that insanity
actually existed.^

4. Conversation and deportment.

§ 378. The general questions relating to feigned insanity are
distinctively hereafter noticed.^ One or two cases will
often diffi- be Sufficient to show the importance of- accurate observa-
tect"° ^^' tion in this respect.

" A parish officer, from the neighborhood of Middle-
ton, England, took a lunatic to the asylum, pursuant to an order
signed by two magistrates. As the man was respectably con-
nected, a gig was hired for the purpose, and he was persuaded that
it was merely an excursion of pleasure on which he was going. In
the course of the journey, however, something occurred to arouse
the suspicions of the lunatic with respect to his real destination :
but he said nothing on the subject, made no resistance, and seemed
to enjoy his jaunt. When they arrive d at Lancaster, it was too
late in the evening to proceed to the asylum, and they took up
their quarters for the night at an inn. Yery early in the morning
the lunatic got up and searched the pockets of the officer, where he
found the magistrate's order for his own detention, which, of course,
let him completely into the secret. With that cunning which mad-
men not unfrequently display, he made the best of his way to the
asylum, saw one of the keepers, and told him that he had got a sad
mad fellow down at Lancaster, whom he should bring up in the
course of the day, adding : ' He's a very queer fellow, and he has
got very odd ways. For instance, I should not wonder if he was
to say I was the madman, and that he was bringing me : but you
must take good care of him, and not believe a word that he says.'

1 Snow V. Benton, 28 IlL 306. Such 2 Sawyer v. State, 35 Ind, SO; Brad-
evidence, it has been held, is not com- ley v. State, 31 Ind. 492.
petent until evidence of the defendant's ^ ggg infra, §§ 443-460; and as to
own insanity has been given. Laros change of character and disposition,
V. Com., 84 Pa. 200. See People v. see infra, § 390.
Pine, 2 Barb. 566.

314

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 378.

The keeper of course promised compliance, and the lunatic walked
back to the inn, where he found the officer still fast asleep. He
awoke him, and they sat down to breakfast together. ' You're a
lazy fellow to be sleeping all day ; I have had a long walk this
morning,' says the lunatic. ' Indeed,' says the oflBcer, ' I should
like to have a walk myself after breakfast ; perhaps you will go
with me ?' The lunatic assented, and after breakfast they set out,
the officer leading the way toward the lunatic asylum, intending to
deliver his charge ; but it never occurred to him to examine whether
his order was safe. When they got within sight of the asylum the
lunatic exclaimed," ' What a fine house that is !' ' Yes,' said the
officer, ' I should like to see the inside of it.' ' So should I,' ob-
served the lunatic. ' Well, I dare say they will let us through — I
will ask,' was the response. They went to the door; the officer
rang the bell, and the keeper whom the lunatic had previously seen
made his appearance, with two or three assistants. The officer then
began to fumble in his pockets for the order, when the lunatic pro-
duced it, and gave it to the keeper, saying, ' This is the man whom
I spoke to you about. You will take care of him ; shave his head,
and put a strait waistcoat on him.' The men immediately laid
hands on the poor officer, who vociferated loudly that the other
was the madman, and he the officer ; but, as this only confirmed the
story previously told by the lunatic, it did not at all tend to procure
his liberation. He was taken away, and became so indignantly
furious that the strait waistcoat was speedily put upon him, and
his head was shaved, secundum artem. Meanwhile, the lunatic
walked deliberately back to the inn, paid the reckoning, and set
out on his journey homeward. The good people in the country
were, of course, surprised on seeing the wrong man return ; they
were afraid that the lunatic, in a fit of frenzy, had murdered the
officer, and they asked him with much trepidation what he had
done with Mr. Stevenson. ' Done Avith him ?' said the madman,
'why, I left him at the Lancaster Asylum, as mad as a fury!'
which, indeed, was not very far from the truth ; for the wits of the
officer were wellnigh upset by his unexpected detention and sub-
sequent treatment.

" Further inquiry was forthwith made by his neighbors, and it
was ascertained that the man was actually in the asylum. X ma-
gistrate's order was produced for his liberation ; and he returned

315

§ 379.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

home with a handkerchief tied round his head in lieu of the cover-
ing which nature had hestowed upon it."^

§ 379. " I was requested," says Dr. Winslow, " to see a gentle-
Often only naan who was said to be suicidally insane. Upon in-
outs?de'^ci7 I^^^J' ^ ascertained from good authority that under the
cumstances influence of the most distressing hallucinations he had
attempted to hang himself. The patient firmly, earnestly, and ap-
parently with great truthfulness, resolutely and repeatedly denied
the fact. He declared it was an invention — a pure creation of the
imagination, originating with the family ; that he was happy, sub-
ject to no depression, had a strong wish to live, and great fear of
death. I examined him, in conjunction with another physician, and
neither of us could seize hold of the salient point, or satisfy him-
self that the man was actually insane. But, we asked ourselves,
what motive could his family have for thus misrepresenting the facts
of the case ? We felt quite assured, from the character of the evi-
dence presented, that an attempt at suicide had been made ; but
the patient, with an ingenuity which would have reflected credit
upon a nisi prius lawyer, parried with great skill all the questions,
and gave such prompt and happy replies to our anxious interroga-
tories, that we were compelled to admit ourselves, for a time, per-
fectly defeated. By a course of conversation I drew the gentle-
man's thoughts into a different channel ; and, whilst my attention
was directed apparently elsewhere, I kept a close watch upon his
movements. I perceived, as I imagined, some kind of instrument
projecting from his pocket. He perceived that my eyes were
directed to this, and he immediately expressed a wish to leave the
apartment. I at once said, ' I cannot permit you to do so until I
know what you have concealed in your trowsers pocket.' He at
once manifested signs of embarrassment and excitement, and, rising
rapidly from his seat, endeavored to rush out of the door. He was
immediately prevented from doing so, and his pockets emptied, and
a razor discovered. In his pocket-book a letter Avas found, ad-
dressed to the coroner, intimating to him that he was pursued by
an evil spirit, and this impression had driven him to commit an act
of self-destruction. Fortunately for our own reputation and the

' Mancliester (England) Guardian.

316

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 379.

patient's life, this providential discovery was made.* It may be
necessary to see and examine the patient on more than one occasion
before the physician is satisfied as to the actual state of his mind.
In cases of doubtful character, I would suggest that this course
should invariably be adopted, taking the necessary precaution to re-
commend close vigilance during the interregnum. I suggest this
course, in consequence of my being acquainted with the case of a
lady, whose removal from home was for a few days temporarily
postponed, in compliance with the cautious and judicious advice of
the medical man, who admitted that he could not detect, according
to his apprehension, sufficient evidence of insanity to justify him in
signing the certificate. During the interim she succeeded in de-
stroying herself. In a few instances we are justified in partially
acting upon the representations of the family and friends of the
alleged lunatic. If a delusion be detected, it must be referred to ;
and, if the patient has committed any overt act of violence, or mani-
fested a suicidal disposition, it is our duty to refer to these facts,
guarding ourselves by stating that we derive such information
from parties immediately around the patient. It is important in
all cases to specify the character of the existing delusion. The
expression of a belief in the fact of delusive ideas, and of the pres-
ence of abstract insanity without a specification of facts, renders a
medical certificate invalid. I have often seen certificates worded
to this efiect : ' I have formed my opinions from the fact of the
party being insane' — ' being under delusions' — ' being excited' —
' being violent.' These generalizations should be carefully avoided ;
the more concise the account of the patient's condition, the closer

• " It is only in having," says Orfila, be necessary to influence their opinion.
" an acquaintance with the whole life In a report, they should not confine
of an individual, in weighing and com- themselves to a simple opinion upon
paring every fact, that in some cases, the state of the person who is the sub-
we can pronounce with certainty upon ject of it, but, of necessity, should go
his actual moral state. It is in inter- into details upon the facts observed, in
rogating the past that we acquire a order that the same piece may be sub-
knowledge of the present." The same mitted to the examination of new ex-
author also states, that, when an perts. Tlie employment of all the
opinion is asked from physicians upon means indicated does not always lead
the actual state of an accused person, to a positive result, and sometimes we
they ought, in the examination of his are to remain in doubt. — Med. Leg.,
previous conduct, to understand what Orfila, tome i. p. 400. Paris, 1848.
act is imputed to him, if that should

317

§ 380.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

will it be in unison with the expressed wish of the commissioners
in lunacy. The record of one clear and unmistakable delusion is
quite sufficient for all legal purposes. But cases do occur where
no delusion can be detected, and yet confinement may be absolutely
necessary. Under such circumstances it is the duty of the medical
man to enter more into detail as to the facts of the case. Perhaps
I may be excused for suggesting, that, in every instance of this
kind, the parties should keep copies of their certificates."^

§ 380. A man mentioned by Pinel, who had been for some time '
Insanity confined in the Bicetre, was, on the visitation of a com-
sometimes missary, ordered to be discharged as perfectly sane, after
rent on one a long conversation in which he had conducted himself
with the greatest propriety. The officer prepared the
proch verbal for his discharge, and gave it to him to put his name
to it, when he subscribed himself Jesus Christ, and then indulged
in all the reveries arising from that delusion. Lord Erskine gives
a very remarkable history of a man who indicted Dr. Monro for
confining him without cause in a madhouse. He underwent the
most rigid examination, by the counsel of the defendant, without
discovering any appearance of insanity, until a gentleman came into
court who desired a question to be put to him respecting a princess
with whom he had corresponded in cherry-juice. He immediately
talked about the princess in the most insane manner, and the cause
was at an end. But, this having taken place in Westminster, he
commenced another action in the city of London, and on this occa-
sion no effort could induce him to expose his insanity ; so that the
cause was dismissed only by bringing against him the evidence
taken at Westminster. On another occasion. Lord Erskine ex-
amined a gentleman who had indicted his brother for confining him
as a maniac, and the examination had gone on for great part of a
day without discovering any traces of insanity. Dr. Sims then
came into court, and informed the counsel that the gentleman con-
sidered himself as the Saviour of the world. A single observation,
addressed to him in this character, showed his insanity, and put an
end to the cause. Many similar cases, says Abercrombie, are on
record. Several year ago, a gentleman in Edinburgh, who was
brought before a jury to be cognosced, defeated every attempt of

' Winslow on Medico-Legal Ev. 153,

318

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 383.

the opposite counsel to discover any traces of insanity, until a gen-
tleman came into court, who ought to have been present at the
beginning of the case, but had been accidentally detained. He im-
mediately addressed the patient by asking him what were the latest
accounts from the planet Saturn, and speedily elicited ample proof
of insanity.^

§ 881. M. Orfila states, that deranged persons who are conscious
of their condition, and who yet preserve some control Or entirely
over themselves, will answer correctly all questions that '^o'^ceaied.
are addressed to them, and Avill not betray their condition if they
have an interest in concealing it.^

§ 882. Mr. David Paul Brown gives us the following illustration
of this same craftiness : M., having written a letter from

lustRncGS

the asylum, made up of patches of Latin, Greek, French, of ciaiti-
and German, and manifesting most clearly a disordered fu^^tkig
mind, upon escaping from his confinement desired counsel
to institute an action for false imprisonment, against the managers.
"I shall do no such thing," said the lawyer (handing him the
letter) ; " look at that, and tell me whether a sane man ever wrote
such a letter." Upon which, bursting into a laugh, the madman
said, " That indeed does look as if I were insane ; but I wrote it
purposely in that way, because I knew if it had been reasonable,
and the managers had opened it, as they always do, they never
would have allowed it to reach its address."^

§ 883. Lord Chancellor Loughborough once ordered a man to
be brought before him, against whom his heirs wished to take out a
commission of lunacy. lie examined him and put various questions
to him, to which he made the most pertinent answers. " This man
mad !" thought he, " verily he is one of the ablest men I ever met
with." Toward the end of the examination, hoAvever, a little scrap
of paper was put into his hands on which was written " Ezekiel."
This was enough for such a shrewd and able man as his lordship.
He took his cue. " What fine poetry," said the chancellor, " is in
Isaiah!" "Very fine," replied the man, "especially when we
read in tlie original Hebrew." "And how well Jeremiah wrote!"

1 Abercrombie on the Intellectual ^ Med. Leg., M. Orfila, tome i. p. 39(J.
Powers, pp. 253, 254; see also §§ Paris, 1848.
86-92. 3 2 Brown's Forum, p. 478.

319

§ 384.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

" Surely," said the man. " What a genius, too, was Ezekiel !"
" Do you like him ?" said the man ; " I'll tell you a secret, I am
Ezekiel!"

§ 384. Cunning may run coincidently with insanity for a long
series of years, and may, in a certain stealthy furtive-
may be a ness, be one of the forerunners of insanity. "This
of^nsanity ^^^i^^gs US to another phase," says the writer of an intel-
ligent survey of the reign of George III., in the London
Spectator of April 27, 1872, " in the character of George III, We
have seen that Lord Waldegrave speaks of his want of frankness.
It is prohable that the hrooding temperament and hidirectness of
conduct which are among the least pleasing of G-eorge! s character-
istics ivere closely connected ivith the mental disease to which he
had a constant tendency. Secretiveness and cunning are usually
marked features in an organization so affected, and the suspicious-
ness of others and the strong and irrational likes and dislikes which
are main operating causes in such a nature produce, as a neces-
sary result, dissimulation and crafty underhand intrigue. When
George, then, found that his violent declarations and overbearing
wilfulness produced no effect, he restrained his morbid impatience
(although his reason on several occasions tottered and even tem-
porarily succumbed under the effort), and endeavored to attain his
ends by cunning watchfulness of opportunities. He acquiesced out-
wardly in the change of advisers and abandonment of cherished
policy, and then set to work to undermine the position of the
intrusive counsellors, and to thwart, as much as he could venture
to do, the development of their plans. He intrigued, in fact,
against the ministers he could not meet openly, and waited for the
moment when he could safely dismiss them again with ignominy.
Hence arose the political phenomenon which went under the name
of ' The King's Friends' — a set of men who formed a backstairs
anti-cabinet, the object of which was to employ the king's name
and the influence of his personal sentiments in organizing an oppo-
sition to his ostensible cabinet advisers, both in parliament and in
the country at large. It must not be supposed by this that there
was any regularly constituted ' cabal,' or any precisely defined
plan of operation for its guidance ; but there were nearly always
throughout the reign of George III. two or three men — generally
not men of high ability, but busy, gossiping intriguers, who were
320

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 384-

irresponsible, and both unavowed and often disavowed agents in
making known what the king's real wishes were. With the assist-
ance of such men, and by a careful observation of the variations in
the public sentiment, George achieved a success in his plans of
personal government which, if we remember the relative position of
the crown and parliament at the commencement of his reign, seems
at first marvellous. In the course of this protracted struggle, the
king had to undergo many mortifications and not a few seemingly
fatal checks, but he always bent to the storm in time, and generally
knew when and how long to maintain an inflexible position. Nothing
but this superior cunning and adroitness could have saved him from
a great civil convulsion such as that which destroyed his prede-
cessors in this path of royal aggrandizement, Charles I. and James
II. George III., however, had concentrativeness of action as well
as persistence of purpose, and, however tortuous his paths were at
times, the tone and direction of his policy were always consistent,
and no one had ever cause to suspect him for a moment of having
become a convert to Whig constitutional notions, although he might
tolerate for a time Whig ministers, and even (as in the case of his
concessions to the revolted American colonies and his ultimate
acknowledgment of their independence) adopt Whig measures and
Whig policy. This persistent uniformity of sentiment, suspended
in action from time to time by the necessities of his position, but
always reappearing again to the public eye, produced by degrees a
great and lasting effect on the public mind."

Mr. A. amassed a large fortune in Philadelphia, in a few years,
as a carriage builder. He had an extraordinary degree of skill,
among other things, in poising and adjusting the springs and
weights of a carriage, and in uniting, in remarkable perfection,
beauty and lightness with strength. As his business increased, he
would be occupied during large portions of the night, as he lay
sleepless in his bed, by calculations as to how these adjustments
could be best secured. In the spring of 1855, he engaged in real
estate speculations, in which he speedily showed that his mind was
becoming unbalanced. He negotiated, or pretended to negotiate,
for a large and immensely valuable lot of ground, intimating that
he expected it to be occupied by Queen Victoria in a visit that she
was projecting. Then he turned his attention to live stock, taking
measures to purchase a vast number of cows, on the plea, he said,
VOL. I.— 21 321

§ 384.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOaiCALLY.

of an expected rise in the price of milk. His family petitioned for
a commission of lunacy, which was granted, and the present writer
was appointed commissioner. While the case was on hearing, it
was agreed on both sides that to give every opportunity for re-
covery, as well as to secure greater certainty in the result, Mr. A.
should be permitted to travel for a few months, under the charge
of two parties in whom he personally had confidence. The experi-
ment was made, and two remarkable facts were established. The
first was that he was possessed by certain insane delusions, which
destroyed his capacity for managing his estate. The second was
that he was conscious that he was under watch, and that these
delusions, if shown to exist, would lead to the pending trial being
decided adversely to his sanity. Nothing could exceed the adroit-
ness and tact with which, on the one hand, he pursued these delu-
sions, and, on the other hand, sought to conceal or mask them
from his attendants. It seems that, besides wanting to purchase
all the live stock he met, he had a fancy that these creatures were
rational. He accordingly addressed notes to " a gray mare," or
" a black horse, which I met in such a place," and, in seeking to
get these notes to their intended destination, he used the adroitness
and finesse of a subtle diplomatist. Then, when the fact was dis-
covered, he would laugh it off, with the utmost coolness, as a prac-
tical joke attempted by him on his guardians. When the case was
brought up for a final hearing, he not merely went successfully
through the test of a protracted and thorough examination, but
cross-examined the witnesses himself, and made a long, able, and
artful speech, in which he endeavored to explain away all the facts
that admitted of a doubtful construction. As to those which were
unequivocally irrational, he took a ground something like the fol-
lowing : " You know, gentlemen of the jury, being business men
yourselves, how acutely one who has been immersed all his life in
a business in which he delights, and of which he may be justly
proud, must feel when suddenly dragged from that business, forced
to compulsory idleness, and dogged by men who he knows are
seeking to entrap him into something which will prove him a lunatic.
You can easily see how, under such circumstances, a man might
resort to imaginary business, such as the world resorts to in its
fashionable sports and games, to fill the void of real. You can
understand, also, how he might attempt practical jokes to see how
322

DOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 385.

far the gullibility of his keepers may go, and, since they wish to
stare, lay traps to give them something to stare at."

Notwithstanding this defence, which for coolness, coherence, and
appropriateness the sanest advocate could with diflSculty have ex-
celled, Mr. A. was found by the jury to be a lunatic, and was re-
manded by the court to the Pennsylvania Hospital for the Insane.
There his insanity became unrestrained and unmistakable ; and a
few weeks after, during the momentary absence of an attendant,
he killed himself by cutting his throat.^

§ 385. Yet, notwithstanding this capacity for occasional conceal-
ment, the abnormal condition of lunatics will, if they are ^ ,

' ' '' But sooner

sufficiently watched, sooner or later break out.^ "To or later

dctGctcd

the manifestation," says Griesinger, "of such (abnormal)
desires, to the free disclosure of tendencies which are generally
concealed, to certain morbid impulses, may be referred much of the
peculiarity Avhich distinguishes the conduct of the insane. Each
has its analogy in healthy life, partly in those peculiar habits and
caprices which are occasionally observed as curious appendages to
great and energetic intellects (which form the materials of many
anecdotes relating to learned men), partly in the directions of the
will and modes of action of the passions and emotions. These in
detail afford materials for numerous comparisons, and we find in
the poets who dwell much on the emotional states numerous analo-
gies by way of example.

" Thus, when the melancholic has the impulse to leave his home,
and roam in the open air, because it appears too confined for him,
and because he expects alleviation from his state of internal pain
by outward disquiet and change, so the same appears in cases of
real mental pain, where the sufferer spends his life in the open air,
or even in distant lands, in the world, in order to recover internal
calm by outward disquiet and restlessness. Eichendorff has well
expressed this disposition in one of his well-known songs. "^

The presumptions belonging to change of character and disposi-
tion are subsequently discussed.^

' See infra, §§ 457, 458. 3 Grlesinger's Mental Pathol., Sydeii.

8 See infra, § 459. ed. (1867), § 47.

< Infra, § 390.

323

§ 387.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

5. Writings.
§ 386. The method of testing conversation and conduct when a
^ question of insanity arises is discussed at large under

Correspon- ^ ♦^ _ ° _

denceofthe other heads. It is proper here to notice of what peculiar

insane a

valuable value Writings, emanating from the supposed insane per-
^^ ■ son, are as a criterion.

" Delusions are sometimes cunningly concealed for a length of
time," says Dr. Winslow, " and, notwithstanding we are certain
that they exist, no amount of ingenuity will induce the patient to
disclose them, particularly if made aware of the object of our visit.
I had been recently to see a lady whose insanity was manifested in
a remarkable degree in her every action ; but, after paying her
several visits, I found it impossible to induce her to exhibit any one
delusive impression or insane idea ; but no sooner had I left the
room than her conversation and conduct became outrageously insane.
Many insane persons are able to talk with apparent rationality, but
cannot write without exhibiting their insanity. I have examined
recently one very remarkable case of this kind, in a clever, well-
read, and intellectual woman, whom I had occasion to visit. I
never could detect the slightest aberration of mind in her conversa-
tion, and yet almost invariably, upon my leaving, she placed in my
hands a letter (which had been written previous to my calling) full
of the most absurd extravagances and fancies ; accusing strangers,
myself, and members of her family of being engaged in deeply con-
cocted conspiracy against her property and life. Several of these
peculiar and interesting cases are recorded, and the medical man
has been advised, with a view of obtaining an insight into the true
condition of the mind, to open a correspondence with the supposed
lunatic, upon the principle that few persons positively insane can,
for any length of time, write without exhibiting their delusions,
whatever amount of self-control they are able to exercise over their
thoughts and morbid ideas during protracted conversation."^

§ 387. The value of letters or other writings, as tests
handwrit- of insanity, has been shown by abundant illustrations
wfii^afcon- ^y Marc^, in a monograph on this particular topic .^ To
tents. these might be added a series of cases, English and

* Winslow on Med. Leg. Ev. 108. au point de vue de la semilogie et de

2 De la valeur des ecrits des alien^s la Med. legale, 1864.

324

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 388.

American, in which the insanity of testators and of obligors has been
in a large degree determined by the characters of written docu-
ments emanating from them. Nor is such evidence without its
worth in criminal prosecutions, especially where the question is
whether insanity is genuine or simulated. It is not merely the
contents of writings that contribute to the decision of the question.
The style and handwriting often supply important tests. " What ex-
perienced forensic physician," asks Liman,' " is not familiar with the
writings of certain classes of lunatics, namely, the so-called queru-
lants, writings teeming with flourishes — words and sentences itali-
cized singly, doubly, or trebly — with parentheses, interlineations,
notes of quotation — writings often very voluminous, swollen with
citations of alleged laws?" In other cases of lunacy are noticed
peculiar modes of construction, words and expression^ both original
and incomprehensible, such as are familiar to every psychological
physician. The first stages of paralysis are characterized by flighti-
ness of writing, omission of words and sentences, blots, etc. But
here, again, cautions are to be interposed. There have been some
literary men of eminence who have been unable to copy a page
exactly, and others who constantly leave out words and misspell.
Proof-readers, in fact, could supply on this topic an interesting
chapter to the curiosities of literature, showing what eccentricities
of style and penmanship mark even some of the soberest thinkers.
On the other hand, lunatics have been known sometimes to write a
sequence of letters in which no mark of eccentricity appears. But
this can only be for a time. Familiar letters, written at periods
when the patient conceives himself unwatched, will in the long run
necessarily give marks by which the experienced observer will de-
tect insanity where it exists.

6. Prior history.

§ 388. This topic has already been referred to incidentally, and
will be again noticed in another relation.^ It is enough

1 r» n • • L • 1 All prior

now to say that alter some fluctuations, it is now the history is
settled rule, that all events in the patient's prior history, evi'deiTce.^
and all traits in his character, past or present, tending
to show an insane taint in his constitution, are admissible in evi-

» Liman's Casper, 1871. * See infra, § 391.

325

§3S9a.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

dence. His own declarations may be adduced for this purpose in
his own defence, though when such declarations are recent, and are
open to the suspicion of being manufactured for the purpose, they
are to be severely scrutinized.^

7. Nature of the act.

(a) Its insensibiUtt/ .

§ 389. " In foro medico," as is well remarked by Schurmayer,^
T ■<. "a derano-ement of the mental faculties is generally to

Insanity o .

may often i,q presumed where the consciousness, imagination, and

be d.6tecte(i

by insensi- sensual apperception or impulse, when subjected to com-
1 1 J o ac ^^^ ^^^^ usual provocations, internal or external, respond
in a manner diiferent from Avhat they would in a normal state. But
whether a certain action, undergoing a criminal investigation, was
the effect of a diseased mental activity of the subject, and com-
mitted when he was not master of himself, is a question to be an-
swered primarily from the indicia presented by the action itself,
and then from the results of an examination of the accused, in
reference to his physical, moral, and mental condition before, at,
and after the deed in question. Illustrations of acts whose insen-
sihility can be received to show the irresponsibility or incompe-
tency of the actor, may be found in the old law cases of a legacy
to the King of Siam, and of an executory devise to all the chil-
dren in a particular parish who should, in a specific year, be born
with moles on their faces. The presumption of irresponsibility
would, of course, attach with great force, under similar circumstances,
to criminal acts equally insensible, as in the case of the idiot who
was found putting an infant brother into the pot to boil for dinner."
§ 389a. Liman, in his (1871) edition of Casper,^ gives the case
of a peasant woman, who for years had been suffering from mental
disorders, and who had determined to kill her three children with
her husband's razor. For this purpose she took the razor a week
before the time she had selected, and hid it. But the razor was
the only one her husband possessed ; and that he would call for it
the next morning after its abstraction was what his wife, if sane,

' See Baxter v. Abbott, 7 Gray, 80 ; 2 § 522. See infra, § 396.
Andrews' trial (Sup. Ct. Mass. 1868), » Berlin, 1871, p. 427.
Pamph. Rep. 124.

326

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 390.

could have expected. This actually took place. It turned out she

had hid the razor in an old press, that was always open, and which

for years had had no key. The husband naturally found the razor,

and placed it on the shelf where it generally lay, and from which

the unhappy woman took it the moment before the assault.

§ 3896. But two cautions are to be observed in regard to the

weight of this kind of testimony. Maniacs (as distin-

. . . „ . But mani-

guished from imbeciles) frequently construct, m further- acs are

f ,y • • 1 1 c • . J. • often con-

ance oi their insane schemes, plans oi consistent mge- gjstent and
nuity. As an illustration of this may be mentioned the priminais

•' "^ irrational.

case of Billman, an undoubted maniac, who contrived a
noose, on the inside of the usual aperture at the top of the door of
his cell through which the attendants were in the habit of looking
or handing in food ; very ingeniously succeeded in inducing an at-
tendant to put his head through, and then caught him in the noose;
and then, finding this device unsuccessful, subsequently enticed the
same attendant, on plea of sickness, into the cell, killed him, and
then changed clothes with him ; and after this so skilfully adopted
the manner proper for the purpose, that he walked away unsus-
pected, and was not arrested until he was out in the street. And
cases are numberless in which persons laboring under insane delu-
sions have executed plans based on these illusions with the most
consummate adroitness and persistency.

So the converse holds good, that sane persons, when working out
even the coolest plans of mischief, almost invariably drop a stitch
or expose a blot, by which discovery is afterwards caused.^ Boyn-
ton, for instance, in a case hereafter mentioned, prepared his plans
of assassination with singular caution, but wadded his gun with a
piece of paper, whose fragments were discovered at the place of the
murder, and which led to his identification. If this is the case with
deliberate crimes, eminently is it so with crimes committed in pas-
sion. Such crimes are often as insensible in their mode of execu-
tion as any that the most raving maniac could perpetrate.

(6) Its incongruity with antecedents.

§ 390. When a man of uniformly mild character boldly and
openly commits a deed of blood ; when a woman of previous purity

' See fully, infra, § 782.

327

§ 892.] MENTAL UNSOUNDNESS CONSIDERED PSTCHOLOGIOALLY.

This often gives way to lasciviousness ; when a long course of irre-
be°consia- proachable honesty and exactness is suddenly broken in
ered. i^y profligacy ; or domestic peace, by unprovoked ebul-

litions of violence, or by expressions of distrust to those formerly
most loved or most trusted/ it is proper to consider how far un-
soundness of mind may not be considered as the cause.

^ 391. It has already been mentioned^ that the examiner, in

order to give a conscientious and correct report, must
S^prst^hfs- acquaint himself with the plaintiff's history, so far as
tory neces- ^|^^g -g practicable. In Prussia this is required by statute ;5

and, however much a witness, in stating the sources of
information, may be restricted by the Anglo-American rules of
evidence, his testimony, by the same rules, will be shorn of much
of its force if it does not rest on an adequate foundation of fact.
Relations, friends, servants, above all, family medical advisers, may
well be expected to render much information, upon which a forensic
physician, charged with the solemn duty of giving an opinion as to
sanity, may base just conclusions. But at the same time much
caution is necessary in securing such renditions. The family of a
patient may have very strong reasons for either believing or dis-
believing his sanity. And in particular is the evidence of mere
occasional visitors to be jealously scrutinized. To hundreds of such
the patient may have appeared sane ; and yet the negative testimony
derived from such is more than counterbalanced by proof of some
positive insane act committed by the party in the privacy of his
family, or in secret, when he believed himself to be unsuspected by
human eye. Public or pre-notified examinations are entitled to
little comparative weight. They always throw the patient on his
guard. They produce in him at the best a non-natural psycholo-
gical state, and they give both stimulus and opportunity to the sane
to pretend to be insane, and to the insane to pretend to be sane.
§ 392. Eminently, therefore, is it necessary to have a knowledge

of a patient's past history. That which is sanity in one
one man man, and which is the state of mind which his antece-
hisanitj^in dcnts necessitate, would be insanity in another. A man,
another. f^j. instance, is conscious of some secret guilt, and he

' See M6decine Legale, par M. Orfila, * Supra, § 388.
tome i. p. 389. ' Liman's Casper, ed. 1871, p. 411.

328

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 394.

shelters himself, in contrition and self-loathing, from the public eye
in morbid seclusion ; or he flies from shadows ; or he resorts to
violent action to cover up the traces of his crime. Or he is placed
in a position in which eccentricity if not incoherence may seem
essential to the maintenance of his rights. To penetrate the mask
of Hamlet's madness, for instance, it is necessary to understand
Hamlet's history. To explain Cain's Avild flight it is necessary to
understand Cain's guilt.

§ 393. Was, then, the alleged insane act one that stood out in
isolated insularity in the patient's history, or was it one

•^ . 1 1 f> Insane act

of a sequence of morbid though sane, and, therefore, either iso-
criminal transactions ? Here, indeed, if the question be q^q of a
one relating to the mere proof of guilt, insanity being sequence.
disentangled from the issue, the Anglo-American practice differs
essentially from that which obtains on the continent of Europe.
By the former in criminal trials, it is not permitted for the prosecu-
tion to bring in evidence of the defendant's prior character ; and
character only comes in when invoked by the defendant itself. By
the latter, the defendant's whole history, so far as it is supposed to
throw light on the case, is introduced at the outset by the prosecu-
tion.^ But when the issue is insanity, the rule, according to the
Anglo-American practice, changes. The reasons are, first, because
insanity is usually set up by the party himself, or his representa-
tives, and from its nature drags into the issue the party's whole
life. Secondly, insanity is chiefly to be proved or disproved by
facts collected from the party's history. His counsel may put in
evidence prior alleged acts of insanity, or may rely on the insu-
lated or sporadic character of the particular act to show its insane
type. The contesting party may reply by showing that the alleged
insane acts were not exceptional and abnormal, but were the conse-
quences of voluntary and intelligently indulged passions, or of sane
design.2

§ 394. That there are such things as isolated and abnormal acts,
which are even vehemently foreign and antagonistic to
the perpetrator's history and character, it needs but a and abnor-
slight acquaintance with the literature of this topic to j^o'^sibie!
show. Of such may be mentioned, as an illustration, the

» Wharton's Conf. of Laws, § 892. « See supra, § 144.

329

§ 396.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

case of an aflFectionate and most exemplary father, hereafter to be
more fully noticed, who suddenly, under the influence of a sharp
but crushing attack of melancholia, accompanied by a delusion that
there was impending on the household a ruin only to be escaped by
death, killed one of his children and attempted the life of another.
Two similar cases are reported by Dr. Liman.^ Even when an
alleged insane act is a part of a sequence of alleged acts of intelli-
gent guilt, it is proper to inquire whether the whole sequence may
not be attributed to a diseased brain. Here, however, come in the
questions of motive, and of consequentiality, which are elsewhere
specially discussed.^

§ 395. It has been already observed that physical diseases,

especially those of a nervous type, are particularly wor-
necessariiy thy of consideration in this respect ; but it is at the same
moraricts ^™® always to be remembered that there are no physical

conditions which necessitate a specific moral act. Valu-
able indeed are the contributions to this branch of psychology which
have been made by Morel,^ Maudesley, and Ray. But we must,
nevertheless, accept as at present conclusive the assertion of Liman,
in his late authoritative exposition of Casper,^ that the weight of
authority both psychological and psychopathical is that we have no
grounds to assume that in insanity disease stereotypes itself in act.
Diagnosis of physical disease may establish Si probability , but nothing
more; It is always a matter of admissible evidence ; but without
positive proof of mental disturbance it is entitled to no controlling
effect.'

§ 396. It should be noticed, also, that a man of unsound mind

generally chooses the most iniudicious time and place for

Insane acts . .

generally the perpetration of the act, although the cunning and
lyand ' address with which an offence was committed do not
avowedly, exclude the supposition of derangement,^ and repels with
indignation every intimation of his insanity ; in many cases assert-
ing that he committed the crime with perfect consciousness, and

' Liman's Casper, ed. 1871, cases ^ See supra, §§ 146-150.

287, 289. 6 See Med. L6g., J. Briand, p. 553,

« See §§ 399-406. Paris, 1852 ; and see supra, §§ 361,

3 Traits de la Med. Leg., Paris, 1866. 389, 390.
« Berlin, 1871, p. 420.

330

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 399.

when entirely in his senses, and disregarding all that is said to
extenuate it.^

§ 397. M. Falret thus speaks of the change of character which
is a prominent symptom of commencing insanity : Some- j^ganity of-
times, instead of a simple exaggeration, it is a veritable ten changes

' . , , 1 T • character.

transformation that the character undergoes. Avarice
gives place to prodigality, piety to irreligion, modesty to obscenity,
temperance to drunkenness, the love of truth to deceit, the most
tender and tried affections to indifference and even hate.^

§ 898. A frequent result is the neglect of the duties due to family
and society, disorder of conduct and derangement of affairs, and
those ebullitions of irritation and violence which momentarily and
sometimes forever destroy the harmony existing between relations
and friends. The changes of conduct observable in the incubation
of mental diseases are infinite ; the deranged show a neglect or an
unaccustomed zeal for their customary occupations, and for the cares
and attentions of family, and for social customs and duties. Patients
who were before sedentary in their habits, indulge in long absences
from their dwellings. Some show an indiiference and neglect for
the persons and things they loved the most, and seek after objects
which they did not like. Others overwhelm you with demonstra-
tions of obligingness and devotedness. Generally those thus affected
are absent and forgetful ; they do not remember what they have
done or what they were about to do an instant before, and then
seem much surprised when these frequent absences of mind are
pointed out to them. Their conduct abounds in contrasts. Those
who were orderly become dissipated ; those who were careful in
business now enter upon the most dangerous speculations, and they
addict themselves to play, drinking, and sexual excesses, and in
fact to all the vices which were before unknown to them.^

§ 399. "It is assumed or implied," says Dr. Taylor, with great
justice, " that sane men never commit a crime without an apparent

' Compare Friedreich, Handbuch der Mentale, M. Falret. 8th Lec-on, p.

gerichtsaertztlichen Praxis. Vol. 1. 215. Paris, 1854. Supra, § 378.
p. 370. * See supra, § 302. Medeciiie Legale,

8 See supra, § 361. J. Briand, p. 548-49. Paris, 1852.

' Lec^ons Cliniques sur rAlienation Pinel, Alienation Mentale, p. 157.

381

§ 399.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

Apparent motive, or one of delusive nature only in the perpetration
motive not ^^ ^ Criminal act. If these positions were true, it would

a proof of ijg very easy to distino-uish a sane from an insane crimi-
insamty, J J o ^

nal, but the rule wholly fails in practice. In the first
place, non-discovery is here taken as a proof of the non-existence
of a motive ; while it is undoubted that motives may exist for
many atrocious criminal acts without our being able to discover
them — a fact proved by the numerous recorded confessions of
criminals before execution, in cases of which, until these confes-
sions were made, no motive for the perpetration of the crime had
appeared to the acutest minds. In the case of Courvoisier, who
was convicted of the murder of Lord William Russell, in June,
1840, it was the reliance upon this alleged criterion, before the
secret proofs of guilt accidentally came out, which led many to
believe he could not have committed the crime ; and the absence
' of motive' was urged by his counsel as the strongest proof of the
man's innocence. It was ingeniously contended, ' that the most
trifling action of human life had its spring from some motive or
other.' This is undoubtedly true, but it is not always in the power
of man untainted with crime to detect and unravel the motives
which influence criminals to the perpetration of murder. No rea-
sonable motive was ever discovered for the atrocious murders and
mutilations perpetrated by G-reenack and Good; yet these persons
were very properly made responsible for their crimes. On the
trial of Francis for shooting at the queen, the main ground of the
defence was, that the prisoner had no motive for the act, and, there-
fore, he was irresponsible ; but he was convicted. It is difficult to
comprehend under what circumstances any motive for such an act
as this could exist ; and, therefore, the admission of such a defence
would have been like laying down the rule, that the evidence of
the perpetration of so heinous a crime should, in all cases, be taken
as a proof of the existence of an irresponsible state of mind. Crimes
have been sometimes committed without any apparent motive, by
sane individuals who were at the time perfectly aware of the crimi-
nality of their conduct. No mark of insanity or delusion could

Etudes Medico - Psychologiques sur Legale, M. Falret, Le(^on 2d, pp. 55-67.

rAlienation Mentale, par L. F. E. Re- Paris, 1854. Also Medecine Legale, par

naudin. Paris, 1854, chap. 18th, p. 779. Orfila, tome i. p. 304. Paris, 1840.
See also Le^ous Cliuiques de Medecine

332

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 401.

be discovered about them, and they had nothing to say in their
defence. They have, however, been very properly held respon-
sible. On the other hand, lunatics confined in a lunatic asylum
have been known to be influenced by motives in the perpetration
of crimes. Thus they have often murdered their keepers in revenge
for ill-treatment which they have experienced at their hands.^ Thus
Farmer was acquitted as insane, while the clear motive for homicide
was revenge and ill-feeling. In another case the act of murder
was perpetrated from jealousy.^ On the whole, the conclusion with
respect to this assumed criterion is, that an absence of motive may,
when there are other strong evidences of insanity, favor the view
of irresponsibility for crime ; but the non-discovery of a motive for
a criminal act cannot of itself be taken as any proof of the existence
of homicidal monomania in the perpetrator. It is right to state,
however, that the law invariably acts on the humane principle, that
the absence of a sufiicient motive forms a strong presumption of
innocence — the presence of one is no proof of guilt."^

That apparent motivelessness is sometimes an accompaniment of
sanity, will be noticed hereafter.*

§ 400. It has been already said,^ that it is the duty of the psy-
chological expert, before testifying on the question of
sanity, to explore the motives which led to the perpetra- ^"ff^for
tion of the act or acts under examination. No act is study of

motive.

committed without motive. This motive may be sane or
insane. But so complex is human nature — so subtle are the influ-
ences which lead to human actions — that for the assignment of true
motive it is requisite not only to have an experimental knoAvledge
of the human heart in general in its manifold phases and possibili-
ties, but to have a special acquaintance with the history of the
person whose sanity is under investigation. In making such a
study, the following suggestions will be of use.

§ 401. 1. It is rare that the motive to an act is simple. There
is generally a confluence of motives, for and against a ■^q^^^,^
particular step ; and the will may remain in equipoise rarely sim-
until some trifle, such as a prejudice scarcely acknowl-

' See the case of Queen v. Farmer, ^ Taylor's Med. Jurisprudence, pp.

York Spring Assizes, 1837. 578, 679.

2 Reg. V. Goule, Durham Summer * Infra, § 782.
Assizes, 1845. ^ See supra, § 302.

3(J3

§ 401.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

edged even by self, or an omen, or a lot, turns the scale. So far,
also, from particular motives acting on men with uniform force, they
vary in their effects as materially as do the characters of those on
whom they operate. What on one man has an overwhelming force
influences other men but slightly. What is rational to one man is
highly irrational to another. Sir Robert Walpole, for instance,
was a statesman of peace, and the war with Spain, which he was
goaded to undertake, was hostile to his whole system of policy ;
it could not be fitted into that system of policy ; it was to him
irrational. Lord Chatham, on the other hand, was a statesman of
war ; a patient peace policy was to him so unnatural and incongru-
ous that when he attempted it he was capricious, if not imbecile ;
while he carried on war with an adventurous and bold hand, and
displayed in its conduct the highest gifts of genius. To him, there-
fore, it was as rational to flash forth immediate war on a supposed
national affront, as to Walpole it would have been gravely to con-
sider the issue, and, if it could be done honorably, to cause the
removal of the offence by arts of peace. Yet, for unjust war, when
it occurred, Walpole and Chatham would have been equally respon-
sible to public opinion, though the first embarked in such war from
a weak concession to rivals, the second from personal passion and
fire. So, to take a case that occurred in Philadelphia some years
since, a young man named Alexander, from one of the southwestern
States, educated in the most fantastic school of chivalry, received
a supposed insult in a broker's shop, and instantly shot the assail-
ant dead. To him, the act, on his code, was rational; it was the
natural result of his principles, which he had intelligently accepted;
he was as morally responsible to the law of the land, though it may
be in a different shade of guilt, as would be the assassin who, on
the principle that he will get what he can, kills the victim whom he
plunders, or the duellist who from cowardice shivers into a duel.
Insanity in neither case is to be presumed ; there is intelligent mo-
tive, though motive deriving its force from the character on which
it acts. So also in a parallel drawn by Liman.^ A wretch named
Markmann saw in the street an old woman carrying a basket, in
which was a clean linen shirt. He wanted to have it ; he followed
the woman to rob her ; he struck her ; and from the blow she died.

' Liman's Casper, ed. 1871, p. 422.

334

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 403.

H., an educated and refined young ofiicer, was struck on the face
suddenly, in a public garden, in presence of his intended wife and
a large crowd of spectators ; and immediately shot the assailant to
the heart. Yet H. would not have been impelled to homicide by
desire to rob, nor Markmann by a desire to avenge wounded honor.

§ 402. In each case, however, the motive that operated was one
that was adequate according to the defendant's own lights. It is
necessary, therefore, in order to determine upon the motivelessness
of an act, for the expert to place himself at the point of vision occu-
pied by the person whose act is under investigation. We have no
right to establish for the causa faeinoris an arbitrary motive such
as would in reference to dispassionate men be rational. There are
no dispassionate men. Each man has his own idiosyncrasies which,
though more or less operative on his judgment, are consistent with
sanity. Eminently is this the case with wills. A man of high
honor may be peculiarly sensitive as to a child's unworthiness, and
from this disinheritance may spring. Another may disinherit a
relation for an offence, trivial in grade, and perhaps imaginary ;
yet, if there be no fraud or insanity proved aUu7ide, the will is
good.^ So also as to the causa faeinoris in criminal cases. There
is no minimum below which a motive, in the eye of the law, ceases
to exist. Murders have been committed by the abject and avari-
cious for coppers ; while men almost stifled with wealth have been
known to seek to augment such wealth by perjuries and frauds.
Trivial motives, as they are sometimes called, are, considered by
themselves, proof rather of a mind familiar with crime than of
lunacy.

§ 403. 2. Wor can we dare, as is sometimes done, to withdraw
instinctivepassion from the range of responsible motives, j ^. ,.
As has been strikingly stated, in an argument elsewhere passion re-

.•19,, .... . . , sponsible.

noticed,'' the question is, is the motive, in respect to the
individual under investigation, one that can be overbalanced by fear
of punishment ? Is, for instance, a man who flies into transports
of rage or lust capable of moderating these transports when the
fear of punishment or disgrace is held steadily and conspicuously
before his eye ? If so, the law must threaten such punishment and

• See supra, §§ 83-86. « See supra, §§ 146-153, 188, 189.

335

§ 404.] MENTAL UNSOUNDNESS CONSIDERED PYSCHO LOGIC ALLY.

disgrace as the necessary consequence of the indulgence of such

passion ; and, where it threatens, it must execute.

§ 404. 3. Nor can we, with any safety to the community , or

„.. , any judicial consistency , declare as motiveless tJiose

ness not oifences which are stimulated by no other apparent pur-
motiveless. "^ , , , , , y „ . ^. .

pose than that of outraging latv, or that of mjlicting
upon others pain or disgrace. It is true we may connect such
offences in their lighter phases with the desire to attract attention,
or to excite surprise, or to gratify curiosity as to how others will
behave in certain absurd relations in which they may be placed.^
Under this head may be mentioned the police adventures which
Cruikshank has recorded as fashionable among men of the town in
the days of the regency, and the practical jokes, sometimes very
cruel, designed by Theodore Hook. But there is another class of
offences, based simply on the love of malevolent action, and which,
without having even the excuse of vanity or curiosity advanced for
the last, are prompted by such malevolence pure and simple, and yet
which the law regards as in the highest degree criminal, and the
objects of its most signal penalties. In January, 1872, we hear of
a prosecution instituted against some laborers in a Pennsylvania
mining town who poured petroleum on a negro boy and then set fire
to him ; and with this may be grouped the case of a miscreant men-
tioned by Bottex, who threw a boy, a stranger to him, in the water,
simply to watch his drowning struggles ; of Earl Ferrars, who, in
cool malignity and with no imaginable other motive, killed his
steward ; of the Count of Charleroi (a Bourbon), who, among other
atrocities, out of " sport" shot one of his servants, from the roof of
a house, as he would have shot a wild beast; of the widow Zwan-
ziger who poisoned as a matter of curiosity ; of the fiendish mother
told of by Pohlman, who, after a series of cruelties, shut up her
child in a room with a nest of wasps. These cases, if we limit
motives to lust, to avarice, to revenge, to passion, to desire to secure
safety, are motiveless. They may, as has been well remarked, pass
over a wide range, from the boy who malevolently tortures a kitten,
to Tiberius who malevolently tortures a slave. They may spring
simply from the desire, more or less powerful, to inflict pain. Yet

» See supra, §§ 163-178, 183, 189. For authorities, see Wh. Cr. L. 8tli ed.
§ 119.

836

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 406.

they are peculiarly amenable to penal justice for two reasons.
First, being what is commonly called " motiveless," they cannot be
warded off by any amount of personal, voluntary precaution. We
can defend ourselves by bolts from the burglar ; we can, by pru-
dence, keep out of the range of the predatory and deliberate assassin ;
we may cause the arrest of one by whom our life is threatened. No
precaution, however, is a defence against the merely malevolent
criminal, who fires a house, or shoots a stranger, simply to watch
the pain he inflicts. The only hand that can intervene is that of
the law. Secondly, such offenders are peculiarly open to the in-
fluences of fear. They are either thoughtless or cowardly. To
check them, it is essential for the law to announce to them in terms
unmistakable, "this thing will be signally punished." This, in fact,
is the only motive by which they can be restrained ; and by this,
when the motive is presented to them, and they believe in it, they
are restrained. But what the law thus announces, it must execute.
Nor can it speak to such characters, except by the example of pun-
ishment inflicted upon others, and therefore by punishment immi-
nent to self.^

§ 405. Yet, making all these deductions, there is such a thing
as a legally motiveless act. When, without malevolence,

. . . . Yet there

and without any benefit or gratification to self, an act is may be a
done, the perpetrator cannot be regarded as intentionally tifeiessact^
and specifically criminal.

(c?) Neglect to escape.^

§ 406. Exculpatory subterfuges, and attempts to escape, if de-
signed before the commission of the offence, go a great
way to show that the offender was conscious that the arranged
intended act was wrong. When, indeed, such prepara- ^q^ always^
tions are intelligently and consistently made, very strong v^oofs of
proof of insanity must exist to overthrow the presump-
tion of sanity they supply.^ In the case of Christiana Edmunds,

■ Cases of homicide, where the mo- kewiirdiger Verbrechen, Giessen, 1828,

live was mere malevolence, and desire and by Liman, in his edition to Casper,

to inflict pain, and yet where this Berlin, 1871, p. 425.

motive was one which fear was able to ^ gee Wills on Circumst. Ev. 70 ;

control and subdue, are given by Feuer- Best on Presurap. 322 ; Wh. Ev. § 750.

bach, Aktenmassige Darstellung Mer- ^ Supra, §§ 168-170.

VOL. I.— 22 337

§ 407.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

which is elsewhere fully noticed, this was the chief difficulty with
which the counsel for the defence had to struggle. The charge was
poisoning ; and it was shown that she had taken peculiarly skilful
means, both before and after the guilty act, to throw its burden
upon others. Yet it must be remembered that, when a mind other-
wise intelligent is controlled by an insane delusion, preparations
the most rational may be made to gratify this delusion, and subse-
quently to defend its gratification. Several cases have just been
cited to illustrate this ; and the discipline of lunatic asylums is
based upon the existence of such capacity, and upon the moral sen-
sibility displayed by such devices to avoid detection. But, after
all, it is rare that some insane freak does not ultimately, in cases
of true insanity, exhibit itself after the consummation of the act.
In a melancholy instance elsewhere noticed, a gentleman who had
planned and executed, under an insane delusion, the killing of one
of his children, made his escape, it is true, successfully, but dressed
himself simply in his night-clothes, and was hence at once arrested.
To this effect, also, is a case reported by Dr. Liman. An uphol-
sterer named Schulze, who, under a similar delusion, killed his
children whom he most tenderly loved, took the pains, before the
act, to send out of the house, on an errand, a woman who other-
wise would have been a witness of the act. But the pretext on
which he sent her was the delivery of a letter to a clergyman
whom he did not even personally know. When the letter was
opened, it was found to contain simply the words : '■''Eu. WoKlge-
horen Schulze^^ — your honorable Schulze.

§ 407. In cases where the sanity of a testator or obligor is con-
„ tested, and where the point is the existence of an insane

Skill m ' _ ^ _ .

concealing delusion, little can be inferred from the skill and caution
proves with which such delusion is indulged. A testator, for

httie. instance, under the delusion of infidelity or persecution

from his nearest and most devoted relatives, has been known most
artfully to conceal this delusion until, as in one or two reported
cases, it is drawn from him by his legal adviser when he makes his
will. So in the case of a gentleman against whom a commission of
lunacy was taken out in Philadelphia some years since, and in
which the evidence of insanity was incontestable, one of the delu-
sions was that animals were intelligent, and capable of correspond-
ence. He wrote letters to cows, for instance, which letters he
338

HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 409.

showed the utmost adroitness in concealing, and which he after-
wards attempted to excuse as a joke. Yet the precautions he dis-
played in mailing the letters, while they showed his sense of the
risks to which such wild acts exposed him, showed also the reality
of the delusion by which he was beset.

§ 408. Yet here also the converse, especially in criminal cases,
fails. Prearranged subterfuges infer, no doubt, a con-

. . 1 •! 1 t, L Innocence

sciousness that the act in question is reprehensible ; but not shown
the absence of such subterfuges does not prove a con- of pre^-^'^^^
sciousness that such act was innocent.^ For the sane g"J5.°ff^^g_
culprit is often not in a position in which such prepara-
tions can be made. Crimes committed in sudden passion, in par-
ticular, are from their very nature incapable of being thus ante-
cedently shielded.

§ 409. Equally complex, though essentially dissimilar, are the
questions that arise when the effort is to draAV the pre-

•^ Attempts

sumption of sanity from attempts at subtertuge or escape at escape
after the consummated offence. Men, sane and insane, renceno
innocent and guilty, instinctively seek to escape danger. P''°?f °^
Innocent men, charged with crime, have sometimes in
quasi-'mssimtj fled their country, and resorted to frantic, but
tortuous and even guilty efforts to turn upon others the impending
shock.2 This, in several well-known cases in the United States, has
been the result of the attempt to blackmail men who, as it transpired
ultimately, were entirely innocent, but who were driven almost to
delirium by the attack. On the other hand, persons who, either
from revenge, or jealousy, or political enthusiasm, commit crimes
whose consequences they know they cannot evade, and in whose
character they glory, may resist this instinct, and boldly surrender
themselves after the successful commission of the act. Numerous
cases of this kind are found in trials for homicide through jealousy;
and among those where the impulse was political fanaticism may be
mentioned that of Ravaillac, who, after assassinating Henry IV.,
exultingly declared his guilt. Yet it must not be forgotten that in
cases of imbeciles, and those acting under certain phases of insane
delusion, indift'erence to personal safety would, in such cases, be a
necessary incident of freedom from consciousness of wrong-doing.

» Infra, § 782. 2 Wh. Cr. Ev. § 750.

339

§ 411.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

(g) Forgetfulness as to act.

§ 410. Here we may notice another feature which accompanies

c ^ . insane action, viz., subsequent ohliviousness as to the en-

Subsequent , .

forgetful- tire occurrence} Several curious instances are given in
tion is a ' the books in which, after acts of marked and even atro-
ticm o?in- cious lawlessness committed by the insane, there was an
sanity. utter forgetfulness of the event, or a remembrance of it

only as something dreadful that occurred in a dream. The sane
man sometimes trembles on waking, lest something he had dreamed
of doing, he had really done. The insane^ after committing the
act when awake, afterwards shivers at it as if it was only a dream,
yet a dream which he shudders to recall. Such was the state of
Mary Lamb, after killing her mother, of which she had only a
blurred consciousness as of something she had dreamed of; and not
rare are the cases in which maniacs, in lucid intervals, have asked
with cries of terror, as their first inquiry, for one whom in their
paroxysm they may have destroyed. This, we are told by Dr.
Liman, is peculiarly the case after injuries of the brain, and after
the transitory mania of persons affected with epilepsy, hysteria,
uterine disease, acute intoxication, sleep-drunkenness, and uncon-
sciousness produced by anemia of the brain. Of cases of such
dreamy confusion and of misty terror at a vague but appalling
recollection, we have illustrations in trials, of which several are
reported in the United States, of mothers who, when in puerperal
fever, killed their children. Several cases where this defence was
psychologically investigated are given in Liman's Casper.^

§ 411. Yet, even here, when such oblivion is set up, there are
cautions to be interposed. It is always a matter of

But such a • . . , ,, , , . ^.

defence grave suspicion when the party under examination pro-
Tc^ion°^"^" fesses to have no recollection of the event.^ Psycholo-
gically, such a supposition of two utterly distinct con-
sciousnesses is only probable when there is a loss of memory as to
the whole section of time in which the event in question is contained.
There are, therefore, grave reasons to believe the defence is feigned,
when, before the examination is instituted, and when the patient
thinks himself unobserved, he betrays a recollection of collateral
incidents embraced in the same scope of time.

> See infra, § 449. « Vol. ii. Cases 324, 325, 329. » Infra, § 449.

340

DISTINGUISHING MENTAL UNSOUNDNESS.

CHAPTER III.

FROM WHAT MENTAL UNSOUNDNESS IS TO BE
DISTINGUISHED.

I. Emotions.

Insanity distinguishable from passion,
§412.

1. Remorse,

Remorse may approach insanity, § 413.

Relation to derangement, § 414.

Cannot be always suppressed, § 415.

Remorse not a proof of sanity at time
of act, § 416.

Nor is absence of remorse a proof of in-
sanity, § 417.

2. Anger.

Anger and revenge less like insanity
than is remorse, § 422.

3. Shame.

Shame may produce a state resembling

insanity, § 423.
Instances of insanity caused by shame,

§424.
Suicide from shame, § 425.

4. Grief.
Symptoms of grief, § 426.

Capacity to weep no test of grief, § 427.
Insanity not relieved by counter-irrita-
tion, like grief, § 428.

5. Homesickness {Nbstalgia).
Nostalgia often like hysteria, § 429.
May run into delirium, § 430.
Nostalgia not always a mental disease,

§431.
May be either cause or result of other

diseases, § 431 a.

6. Fear.
Distinction between sane and insane
fear important, § 432.

Importance of question, § 433.

Usually conditioned on a contingency,
§434.

Effects of fear vary with diflferent con-
stitutions, § 435.

Symptoms of fear, § 436.

Relation of fear to the functions of the
mind, § 437.

Murder under the influence of fear, §
438.

1. To avert threatened disaster to
person killed, § 439.

2. In supposed self-defence, § 440.

3. In the case of imbecility, § 441.
Fear with those whose intellects are

disordered, § 442.

II. Simulated Insanity.
1. Examination.
Detection of feigned insanity, § 443.
Close observation of subject necessary,
§444.

2. Reasons for suspecting, § 445.
3. Forms generally simulated.

Delirium the form of insanity most
usually simulated, § 446.

Yet imbecility easier to feign, § 447.

Mania difficult to feign, § 448.

Simulated oblivion frequent, § 449.

Physiognomy and health to be ex-
amined, § 450.

Comparison of cases the surest test, §
451.

4. Not proved by sanity at the trial.
Reasons for this, § 452.

Pretended insanity may turn into real,
§453.

341

§ 412.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

5. Tests.

Suggestions for the discovery of feigned
insanity, § 454.

Artificial tests sometimes used, § 455.

Periodicity a test where it is a condi-
tion of insanity, § 456.

Silence or evasion of question is sus-
picious, § 457.

Real lunatics rarely acknowledge de-
lusions, § 458.

Consistent simulation almost impossi-
ble, § 459.

But simulation does not exclude in-
sanity, § 460.

I. EMOTIONS.^

§ 412. Briand says, that from the height of passion to madness
In anit ^^ ^^^ °^® step, but it is precisely this step which decides
distin- the quality of the act. It is important then to know

from pas- exactly the precise characteristics of the passions and of
"°°' insanity. But here science fails, for it must be admitted

that we are unable to point out the place where passion ends or
where madness commences.^ M. Orfila draws the following dis-
tinction between a man acting under the impulse of the passions
and one urged on by insanity. The mind is always greatly troubled
when it is agitated by anger, tormented by an unfortunate love,
bewildered by jealousy, overcome by despair, humbled by terror,
or corrupted by an unconquerable desire for vengeance, etc. Then,
as it is commonly said, a man is no longer master of himself, his
reason is affected, his ideas are in disorder, he is like a madman.
But, in all these cases, a man does not lose his knowledge of the
real relation of things ; he may exaggerate his misfortune, but this
misfortune is real, and, if it carries him to commit a criminal act,
this act is perfectly well motived. Insanity is more or less inde-
pendent of the cause that produced it, it exists of itself ; the pas-
sions cease with their cause, jealousy disappears with the object
that provoked it, anger lasts but a few moments in the absence of
the one who by a grievous injury gave it birth, etc. Violent pas-
sions cloud the judgment, but they do not produce those delusions

' See particularly Aristotle's delinea- ^ Med. Leg. p. 551. Paris, 1852. See
tion of the Passions in the Second Book also infra, § 816, on the psychical indi-

of his "Rhetoric;" and see also L.
Krahmer, Handbuch der gericht. Med.
Halle, C. A. Schwetschke, 1851, § 126.
Observe, also, an essay by Leigh Hunt,
in his Miscellanies, p. 51.

342

cations of crime. See an article on
Emotional Insanity, 5 Journ. Nerv. &
Ment. Diseases, 79.

REMORSE. [§ 414.

which are observable in insanity. They excite for a moment
sentiments of cruelty, but they do not produce that deep moral
perversion -which influences the madman to sacrifice, without motive,
the being he most cherishes.^

1. Remorse.

§ 413. "When remorse," says Cogan, "is blended with the fear
of punishment, and rises to despair, it constitutes the

. T ,, . , „ „ Remorse

supreme wretchedness ot the mind. ^ And oi all stages may ap-
of passion, remorse is the one most liable, when the con- ^^nity. ^^'
science is acute, to be mistaken for insanity itself. Of
this we have a melancholy case in our own local experience. A
young gentleman of peculiarly nice sense of honor and keen sensi-
bility, killed an intimate and beloved friend in a duel, hastily forced
on by his own undue susceptibility. For twenty years he has never
ceased to stride to and fro the chamber in which he has been con-
fined, firing an imaginary pistol at intervals, and then throwing him-
self back with the acutest expression of misery. In this instance
remorse has run into madness. In others it has made but a slight
progress in that direction ; in others entire sanity and responsibility
remain. And yet in all instances it presents symptoms which it is
well for the forensic physician to examine in relation to their moral
as well as their psychical origin.

§ 4l4. Harpsfield, in his Ecclesiastical History, gives us the fol-
lowing graphic report of the dying words of Cardinal ^^-^^^^^^ ^^
Beaufort, which is a powerful illustration of the effect of derange-

m fin 1*1

this passion: "And must I then die ! Will not all my
riches save me ! I could purchase the kingdom, if it would save
my life. What! is there no bribing of death ? When my nephew,
the Duke of Bedford, died, I thought my happiness and my autho-
rity greatly increased : but the Duke of Gloucester's death raised
me in fancy to a level with kings, and I thought of nothing but
accumulating still greater wealth, to purchase at last the triple
crown. Alas ! how are all my hopes disappointed ! Wherefore,
0 my friends, let me earnestly beseech you to pray for me, and

> Med. Leg. tome i. p. 407. Paris, ^ Cogan on the Passions, vol. i. chap.
1848. This passage adopted in Mc- 2, § 3.
Farland's case, 8 Abbott (N. Y.) Prac.

C.,N. S. 69.

343

§ 415.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

recommend my departing soul to God !" A few minutes before his
death his mind appeared to be undergoing the tortures of the damned.
He held up his two hands, and cried — "Away! away! why thus
do you look at me ?" This same scene in the cardinal's chamber
is thus still more vividly depicted by Shakspeare : —

King Hen.
Cardinal.

King Hen.

Warwick.
Cardinal.

King Hen.

Warwick.

§415.

SCENE — The Cardinal's hed-chimher.
Enter King Henry, Salisbury, and Warwick.

How fares my lord ? speak, Beaufort, to thy sovereign.

If thou he'st death, I '11 give thee England's treasure,

Enough to purchase such another island.

So thou wilt let me live, and feel no pain.

Ah, what a sign it is of evil life.

When death's approach is seen so terrible !

Beaufort, it is thy sovereign speaks to thee.

Bring me unto my trial when you will ;

Died he' not in his bed ? where should he die ?

Can I make men live whe'r they will or no ?—

Oh ! torture me no more, I will confess. —

Alive again ? then show me where he is ;

I '11 give a thousand pounds to look upon him.

He hath no eyes, the dust hath blinded them.

Comb down his hair ; look ! look ! it stands upright,

Like lime-twigs set to catch my winged soul ! —

Give me some drink ; and bid the apothecary

Bring the strong poison I bought of him.

0 thou eternal Mover of the heavens.

Look with a gentle eye upon this wretch !

Oh, beat away the busy meddling fiend

That lays strong siege unto this wretch's soul !—

And from his bosom purge this black despair !

See, how the pangs of death do make him grin.

Schurmayer's^ views on this point are of peculiar interest,
as indicating the conservative iealousy which guards

Cannot be , =>. . . . *^

always sup- against that involuntary dissimulation on the patient's
presse . ^^^^ which makes real and yet at the same time responsi-
ble emotions so difficult to distinguish from irresponsible disease.
" Remorse," he says, " often affects the mind so powerfully as to
assume the appearance of insanity. The smothered self-reproach
of the criminal sometimes expresses itself in the shape of deep de-

* Meaning the Duke of Gloucester.

344

2 See Gericht. Med., § 519,

REMORSE. [§ 415.

jection, and sometimes in that of petulance and irritability. Al-
most every defendant who is guilty will be seen to lapse at least
periodically into a deep reverie, with the eyes staring into vacancy.
The most consummate villains alone are exempt from such feelings.
Criminals generally endeavor to suppress the voice of conscience,
because they fear to be betrayed by it. But this very reaction is
perfectly legible in their faces, gestures, and general bodily condi-
tion. Under these circumstances the qualms of conscience fre-
quently assume the appearance of disease. The accused, particu-
larly if in confinement, does not sleep at night for weeks, and con-
sequently looks pale and haggard, loses his appetite, and speaks
with hesitation, and sometimes with trembling. When this condi-
tion reaches a point of great intensity, the guilty is visited by
visions and hallucinations ; avenging angels appear to him, or evil
spirits, phantoms, or the shades of the dead and injured. Add to
this a little superstition, and the victim is firmly convinced of the
reality of these apparitions, and regards them as punishments sent
from heaven. In the course of the trial itself, these symptoms are
less perceptible ; and generally the culprit hesitates to tell an offi-
cial person what he suffers in seclusion, but the struggle within
frequently breaks out in spite of his efforts, or at least interferes
with the coherence of his speech. In such cases a man, perfectly
hale in mind and body, will frequently talk at random, or at least
express himself in so confused and stupid a manner as to induce
doubts of his sanity. It is remarkable, that those who confess their
guilt are subject to these attacks equally with those who deny it.
It might be supposed that the criminals who have made a public
confession would experience a regenerating sense of relief in con-
sequence of having removed a load from their minds ; but the con-
fession often precedes the first sensations of remorse, by directing
the attention to the moral and religious aspects of the deed.

" This proves that even a confessed criminal should be treated
with great circumspection. Instead of overwhelming him with re-
proaches, the victory gained by his integrity over his fears should
be held up to himself as a restorer of self-respect.

" The more depraved order of culprits do not allow their con-
sciences to drive them to despair, but only to petulance ; but even
this frame of mind sometimes goes so far as to lead the subject to
do the most incomprehensible things, such as asserting things against

345

§ 416.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOaiCALLY.

reason, refusing to answer, or causing constant trouble and vexation
in the prison. Such persons are often greatly misunderstood, some-
times by ascribing their offensive conduct solely to malice and spite,
and sometimes by regarding them as demented when, driven by
their chagrin, they lose all reflection, and say or do things to their
own injury. The consciousness of crime, coupled with the despair
of expiation consequent upon having denied it, produce an internal
schism which may result in the most singular and distracting
phenomena.

" A tolerably sure criterion of an awakened conscience is often
to be found in the desire of the culprits for some consolatory assur-
ance. Even those who deny their guilt are generally anxious to
know how they would be able to bear the condition of a criminal
sentenced according to law. In many cases there is an exaggerated
idea of the impending punishment, still further increased by the
imaginings which haunt the prisoner's solitude. When such errone-
ous notions come to the knowledge of the examining physician, it is
perfectly right in him to correct them, and the information thus im-
parted will generally produce a change of feeling which at once dis-
pels every idea of mental derangement."^

§ 416. Remorse as implying sanity?' — Remorse, though some-
Notaproof ^^™®^ adduced as a test of sanity, is an emotion which
of sanity at is often most keenly felt by those who, in a shock of

time of act. . "; *' . '

transitory madness, have committed an illegal act. No-
thing, for instance, could have been more acute than the anguish of
Mary Lamb, as has been already noticed, when she awoke to the
consciousness that her mother had died by her hand ; and similar
were Cowper's expressions of misery when his reason was tempo-
rarily restored and he had gleamings of the fact that he had at-
tempted self-destruction when in a state of lunacy. An idiot or
imbecile, it is true, does not experience remorse ; and, in point of
fact, remorse or any other intelligent emotion would be conclusive
refutation of the allegation of idiocy or imbecility. And so, also, as
to maniacs Avhile their mania continues.^ But, in cases of transitory
mania, remorse, or a feeling of distress very difficult to distinguish

' Schiirmayer, Gericht. Med., § 519. 3 See on this point citations in pamp.
See infra, § 816. Trial of Andrews, Boston, 1868, pp.

2 See infra, §§ 788-823. 276-7.

346

REMORSE : ANGER. [§ 419.

from it, is not prevented, after recovery, by a conviction that the
act, being insane, was innocent. Persons of perfect reason often
suffer acute pain and distress from injuries inflicted on others through
their own mere misadventure, though there was on their part no
moral blame. And such is peculiarly likely to be the case with
those whose very susceptibility to mania rises from temperaments
that are highly strung. It has been noticed that by such the in-
tensity of their regret at insane misconduct is often in proportion to
the intensity of their prior mania.

§ 417. On the other hand, absence of remorse is no proof of in-
sanity. " Indifierent to the moral turpitude of the act," „ .
is sometimes unfortunately brought forward by psycholo- absence of
gical experts as indicating insanity, but there are few proof of
hardened criminals by whom this indifference is not dis- insanity,
played. Undoubtedly our prison reports give instances of penitent
and reformed prisoners ; but, among those suffering second convic-
tions, such instances are very rare. Repentance is frequently
feigned in such cases, but is rarely proved by subsequent voluntary
reform. A chaplain in an English prison illustrates this by refer-
ring to a criminal who, having expressed great religious contrition,
spending much time in poring over the Bible, was pardoned, and
after his pardon returned the Bible to the chaplain, " because I
have no more use for it."

Dr. Liman tells us that he has observed a great number of mur-
derers, whom he had watched during their period of preliminary
arrest, and whom he had seen mount the scaffold or enter the peni-
tentiary for life, whose remorseless apathy, indifference, and even
levity, produced on him the most painful impressions. Such torpor,
though proving a depraved moral sense, is no distinctive evidence
of lunacy.

2. Anger.

§ 418. Anger, as related to " homicidal insanity" will be here-
after distinctively considered.^

§ 419. "A morbid paroxysm of anger," Dr. Rush tells us, " ap-
pears in a preternatural determination of the blood to the brain, a
turgescence of the bloodvessels of the face, a redness of the eyes,

> Infra, § 586.

347

§ 422.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOaiCALLY.

an increased secretion of saliva, which is discharged bj foaming at
the mouth, great volubility or a total suppression of speech, agita-
tions of the fists, stamping of the feet, uncommon bodily strength,
convulsions, hysteria, bleeding at the nose, apoplexy, and death.
Sometimes this disease appears with paleness, tremors, sickness at
the stomach, quick respiration, puking, syncope, and asphyxia. It
is in this case generally combined with fear, and hence arises the
abstraction of blood from the brain, and its determination to other
parts of the body."^

[§§ 420-421 are omitted in this edition for the purpose of con-
densation.]

§ 422. Schiirmayer very justly remarks that in practice, anger
, and revenge afibrd much less difficulty, because much

Anger and ,.,... . .

revenge more readily distinguishable from insanity than is re-
sanit}^ than 'inorse. With the more depraved, experience tells us
IS remorse, ^j^^j. ^-^^^ malignant hatred which led to crime is often
increased after the crime is committed, and is further aggravated
by displeasure at the unfavorable testimony of witnesses. The fury
of such miscreants is often directed against the judge, the keepers,
and all who contribute to the execution of their sentence. In the
case of Carrigan, who was convicted in North Carolina, some years
since, of murder, so high did his temper run, that the defendant,
immediately after the verdict of conviction was rendered, drew forth
a pistol, with which he aimed a shot at the prosecuting attorney,
and then shot himself.

In the fierce outburst of passion, it is quite possible to mistake
a man under such circumstances for a madman, particularly where
there is a sentimental predisposition to the extension of this plea,
and where science and skill are not at hand to correct such errone-
ous impressions. But these views will vanish if the examiner ab-
stains from doing anything which may still further stimulate the
passions, and preserves an imperturbable composure. If, after this,
a severe reprimand is found, either at once or after one or two
repetitions, to make a wholesome impression and quell the excite-
ment, there is certainly no derangement of the faculties ; for a man
with mania, or under the ravings of disease, will never be restored
to self-control by the voice of reason. Where the man is very wild

' Rush on the Mind, p. 332,

348

ANGER : SHAME. [§ 424.

and debased, reproaches will not always answer the purpose, and it
becomes necessary to menace him with coercion. The manner in
which such announcements are received will also suffice to remove
all doubts of his sanity.

3. Shame.

§ 423. The feeling of shame may also exert a very considerable

influence on the demeanor of an accused man, not en- „

, « . Shame may

tirely lost to this sensation by a long course of vice, produce a

Shame rises and sinks with the feeling of honor : " shame sembHng
is the disagreeable perception of the unfavorable opinions i^^sanity.
entertained of us by others." Men of ordinary stamp, who value
external honor far above the dignity of self-respect, can imagine no
more dreadful fate than degradation in the eyes of the public. By
injudicious treatment such individuals may be reduced to a state
closely resembling insanity, particularly in the form of melan-
choly, which will disappear the moment a more judicious course is
resorted to.

It is not necessary for us, in order to make out the similarity of
symptoms between insanity and excessive shame, to find many
parallels to the story told by Dr. Benton, and cited without protest
by Dr. Rush, of a schoolmaster who was accidentally discovered
upon a close-stool by one of his scholars, and who in consequence
became deranged.^

§ 424. Dr. Rush also tells us of an American Indian, who be-
came deranged and destroyed himself, in consequence of

I ' {. ' 1 1 • 1 r>< 1 • Instances

seeing his lace in a looking-glass soon alter his recovery of insanity
from a violent attack of smallpox. The loss of one eye \^^^ ^^
by an affray in a country tavern, which materially
affected the face, produced derangement in a young man who was
afterwards a patient in the Pennsylvania Hospital. There are
other facts which show the depth of this attachment to beauty, in
the human mind, and the poignancy of the distress occasioned by
its loss or decay. The once beautiful Lady Wortley Montague
tells a friend, in one of her letters, that she had never seen herself
in a looking-glass for eleven years, solely from her inability to
bear the mortifying contrast between her appearance in the two

' Rush on the Mind, p. 38.

349

§ 426.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

extremes of her life. A clergyman in Maryland became insane in
consequence of having permitted some typographical errors to
occur in a sermon which he had published on the death of General
Washington.^

§ 425. A young gentleman of considerable promise, of high
Suicide natural and acquired attainments, had been solicited to
from shame make a speech at a public meeting, which was to take
place in the town in which he resided. As he had never attempted
to address extemporaneously a public body, he expressed himself
extremely nervous as to the result, and asked permission to with-
draw his name from the published list of speakers. This wish was
not, however, complied with, as it was thought that when the
critical moment arrived he would not be found wanting even in the
art of public speaking. He had prepared himself with considerable
care for the attempt. His name was announced from the chair,
when he rose for the purpose of delivering his sentiments. The
exordium was spoken without any hesitation ; and his friends felt
assured that he would acquit himself with great credit. He had
not, however, advanced much in his prefatory observations when
he hesitated, and found himself incapable of proceeding. He then
sat down, evidently excessively mortified. In this state he retired
to a room where the members of the committee had previously met,
and cut his throat with his penknife. He wounded the carotid
artery, and died in a few minutes.^

4. G-rief.

§ 426. Shakspeare touchingly as well as naturally describes the
Symptoms Symptoms of that species of morbid grief which becomes
of grief. monomaniac by self-confinement and self -involution : —

" Grief fills up the room of my absent child ;
Lies in Ms bed, walks up and down with me ;
Puts on his pretty looks, repeats his words ;
Remembers me of his gracious parts :
Stuflfs out his vacant garments with his form ;
Then I have reason to be fond of grief.'' ^

" Physicians," says Dr. Rush, "in their unsuccessful efforts to
save life, are often obliged to witness this passion. It is of con-
sequence for them, therefore, to be well acquainted with its symp-

> Rush on the Mind, p. 40. « Winslow's Anatomy of Suicide, p. 64.

350

GRIEF. [§ 428.

toms and cures. Its symptoms are acute and chronic. The former
are, insensibility, syncope, asphyxia, and apoplexy ; the latter are
fever, wakefulness, sighing, with and without tears, dyspepsia,
hypochondriasis, loss of memory, gray hairs, marks of premature
old age in the countenance, catalepsy, and madness. It sometimes
brings on sudden death, without any signs of previous .disease, either
acute or chronic. Dissections of persons who have died of grief
show congestion in and inflammation of the heart, with a rupture of
its auricles and ventricles."^ But there are instances in which the
sympathy of the heart with the whole system is so completely dis-
severed with grief, that the subject of it discovers not one mark of
it in his countenance or behavior. On the contrary, he sometimes
exhibits signs of unbecoming levity in his intercourse with the world.
This state of mind soon passes away, and is generally followed by
all the obvious and natural signs of the most poignant and durable
grief. There is another symptom of grief which is not often noticed,
and that is profound sleep. I have often witnessed it, even in
mothers, immediately after the death of a child. Criminals, we are
told by Mr. Akerman, the keeper of the Newgate, in London, often
sleep soundly the night before their execution. The son of General
Custine slept nine hours the night before he was led to the guillo-
tine, in Paris. These facts, and many similar ones that might be
mentioned, will serve to vindicate the disciples of our Saviour for a
want of sympathy with him in his suffering. They slept during his
agony in the garden, because their " flesh was weak," and in con-
sequence of " sorrow having filled their hearts. "^

§ 427. Tears, or the capacity to weep, form no test in this re-
spect.^ Joanna, the mother of Charles V., was never „ ^ .^
known to weep after the first shock of her husband's weepno_
death, and survived him forty-five years, brooding in
insanity over her loss, without, Mr. Prescott tells us, shedding a
tear.* Insane persons are rarely known to weep.

§ 428. One distinction, however, may be relied on Insanity

. , , . , /^ • f. 1 • . not relieved

With almost certainty, (iriet may be, m most cases, by counter-
relieved by the counter-irritation of some affection other ^["e^o!^"^"'
than that wounded ; but insanity never.

' Late researches, however, indicate ^ Cheyne on Derangement in Con-
siich cases to he very exceptional. nection with Religion, p. 107.

2 Rush on the Mind, pp. 346, 347. '' 3 Pres. Ferd. 8th ed. 2(30.

351

§ 431.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOaiCALLT.

5. Home-sickness {Nostalgia)}

Nostaipia § 429. This often assumes a shape hardly distinguish-

hj^s^teria.^ able from A?/sf ma. Thus Goldsmith writes : —

" The intrepid Swiss that guards a foreign shore,
Condemn'd to climb his mountain-cliflFs no more,
If chance he hear the song, so sweetly wild.
Which, on these cliffs, his infant hours beguil'd,

Melts at the long-lost scenes, that round him rise,
And sinks, a martyr to repentant sighs."

"It is remarkable," says Dr. Rush, "that this disease is most
common among the natives of countries that are the least desirable
for beauty, fertility, climate, or the luxuries of life. They resem-
ble, in this respect, in their influence upon the human heart, the
artificial objects of taste which are at first disagreeable, but which
from habit take a stronger hold upon the appetite than such as are
natural and agreeable."^

§ 430. Nostalgia, as Siebold^ tells us, develops itself principally
in that period of childhood approaching puberty. When
into ^^^ the malady is of long continuance, it runs into voluntary
delirium. star^^ation, sleeplessness, delirium, derangement of the
senses, together with the usual melancholy consequences of unsatis-
fied desire. Sometimes symptoms of pyromania are discoverable.
Thus we are told of a girl of ten years who exposed two children,
committed to her care, to the flames, under the stress of home-
sickness.'*

§ 431. "Another variety of melancholia," says Griesinger, "is
that form which is characterized by a longing for one's
noTlhfiys native land, and by the predominance of those ideas
a mental -which refer to a return to one's home — home-sickness.

"An analogous afl"ection is sometimes developed in

1 Orfila gives the following symptoms ^ Rush on the Mind, pp. 38, 39.

by which nostalgia may be recognized : ^ Gericht. Med. § 213.

Profound sadness to which succeeds a * See Jahrb. des Osterreich. Staates,

gloomy melancholy, silence and a great 15 Bd., 1834, § 597. See also the arti-

desire to be alone, a great indifference cle under the head of Heimweh, by

for everything which does not recall Jesse, in the Encyclop. Worterb. der

the objects regretted. Spasmodic con- Med. Wissensch., Band 25, Berl. 1841,

traction of the stomach, prostration of § 292.
mind and body, marasmus, etc. — Med.
Leg., vol. i. p. 331. Paris, 1848.

352

HOME-SICKNESS. [§ 431 a.

prisoners by want of employment, and frequently also by the co-
operating influence of bad nourishment, damp cells, and onanism.
Nostalgic melancholia is sometimes accompanied by symptoms of
congestion of the head, and even of cerebral inflammation (Larrey) :
in this form, too, the same kind of hallucinations appear (visions of
home scenes, etc.). Not unfrequently we see individuals affected
with a greater or less degree of nostalgia commit acts of violence
(for example, the murder of young children, incendiarism, etc., by
servants). Those acts proceed more frequently from evidently
selfish motives, as from the desire to escape from a forced and
painful position, than from the impulse, which also comes involun-
tarily in the melancholic, to procure a certain degree of solace
through the perpetration of some frightful deed. Naturally, home-
sickness is not always a mental disease : this is of importance in a
medico-legal point of view. In itself it is a mournful disposition of
spirit suggested by external circumstances. It becomes insanity
when this disposition so strongly impregnates all the faculties of
the mind as utterly to exclude the entrance of any other sentiment
and when it is accompanied by delirious conceptions and hallucina-
tions ; a state in which physical derangements — e. g.^ loss of appe-
tite, emaciation, etc. — are seldom absent. In short, home-sickness
ought in foro to be regarded as a mental affection only when it
presents the usual signs of insanity. The want of reflection, which
is the most important point in concrete cases, ought not to be ad-
mitted when the individual is perfectly competent to engage in his
usual avocations and perform his duties, as is the case with many
of those young incendiaries afilicted with home-sickness."^

§ 431 a. "A recent number of the Medical and SurgicalReporter
has a valuable paper from Dr. Calhoun, Surgeon-in-chief, j^j ^^
2d division, 3d corps, on nostalgia as a disease of field either cause

p . . .or result

service. After alluding to the peculiar causes operating of other
to produce the disease, he mentions a case of simple
nostalgia, with loss of appetite and general impairment of functions,
occurring in an officer, and remarks : —

" But I fancy that pure uncomplicated cases of nostalgia, re-
quii'ing treatment, are seldom met with in the field. It is more
frequently a complication or a cause of other disease. The very

' Griesinger's Mental Pathol., Syden. ed. 1867, § 122.

VOL. I.— 23 353

§ 433.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

existence of nostalgia presupposes a state of mental depression
extremely favorable to the contraction of disease. The tjpho-
malaria fever and camp diarrhoea are diseases asthenic in their
character, and always characterized by marked depression of all
the vital functions. The state of mental depression, that is coex-
istent with nostalgia, acts as a predisposing cause of these diseases,
or, as I have frequently found, is coexistent with them. Sometimes
the nostalgia is, on the contrary, produced by other diseases.

" The patient becomes disgusted with his condition, and sighs for
the comforts of home, until his yearning for home scenes becomes
morbid. But, be the nostalgia the cause or the result of diarrhoea,
dysentery, or typhoid fever, it is in either event a complication to
be dreaded as one of the most serious that could befall the patient."^

6. Fear.

§ 432. The distinction between sane and insane fear is one which
is of much importance in several branches of forensic
between medicine. A will is made, for instance, under the influ-
insane fear ence of fear ; and the question to be determined is, is
important. ^^^ yielding to this emotion the consequence of sane or
insane volition ? Or a contract is made under threats ; and here
again the same inquiry emerges. It is true that in both these cases
the question is mixed with that of dolus or fraud. A party cannot
take advantage of his own wrong. He who, by acting on the fears
even of a sane person, obtains an obligation from such person, can-
not, as a general rule, enforce such obligation ; and when a will is
obtained by fear, it requires but slight evidence of mental debility
in the testator to set the will aside.

§ 483. In criminal cases, the question presents itself more
Importance squarely, A. man, under the influence of fear, kills
ofquestion. another. He may kill a supposed enemy, in what is
claimed to be self-defence. Or he may kill his own children, to
avoid, he may claim, some greater evil by which they are threat-
ened. Now, is the party under such circumstances sane or insane ?
Is he responsible so far as penal discipline is concerned ?

' Amer. Journ. of Ins., April, 18ti4.

354

FEAR. [sS 436.

§ 434. First, in answering this question, let us remember what
fear is. Locke defines it to be " an uneasiness of the usually
mind upon the thought of some future evil likely to befall l^^^^l^^_
us." It is i\\Q futurity of the evil that forms the essence gency.
of the emotion. Shakspeare Avell says that —

^^ Present fears
(z. e. fears that are realized)
Are less than horrible imaginings. ^^

As the dreaded event becomes certain, fear, in its technical sense,
gives way to blank despondency. Thus, if we could foresee the con-
flagration by which our home is to be destroyed, or the death-stroke
by which one of our children is in a short time to be snatched from
us, this foreknowledge would envelop us in gloom, and paralyze
proportionally our energies. On the other hand, such certainty in
a coming disaster may produce a calm and adequate courage which
uncertainty might distract. True fear is of a contingent evil ; in
which case the " horrible imaginings" of which Shakspeare speaks
find play. So far as concerns the intellect, the first eifect of terror
of this kind is in the highest degree stimulating. The crowds that
collect around a telegraph ofiice after a great battle ; the frenzied
anxiety with which newspapers are clutched ; the preternatural
rapidity with which their contents are mastered ; the intense acute-
ness of the hearing when the postman's step is awaited; the vividness
with which calculations are made as to the time when the news will
arrive ; the exhaustion which, when the result is known, measures
the intensity of the prior tension ; the haggard countenance ; the
hair which a single night's agony has turned gray ; these are illus-
trations of the eifect of fear.

§ 435. On the physical side, the immediate effects of terror vary
with particular constitutions. There are some whom its Effects of
first shock completely paralyzes.^ There are others ^^.'i^'^f.^
whom it prompts to rapid instinctive flight. There are ent consti-
others — and each of these specifications applies to the
lower animals as well as to men — who are stung by it to wild and
destructive resistance.

§ 436. " The appearances," says Mr. Bain, speaking of the

1 See 19 Journ. Ment. Sci. 621.

355

§ 437.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

Symptoms physical results of fear,^ " may be distributed between
o ear. effects of relaxation and effects of tension. The relaxa-
tion is seen, as regards the muscles, in the dropjDing of the jaw, in
the collapse overtaking all organs not specially excited, in trem-
blings of the lips and other parts, and in the loosening of the sphinc-
ters. Next as to the organic processes and viscera. The digestion
is everywhere weakened ; the flow of saliva is checked ; the gastric
sensation arrested (appetite failing) ; the bowels deranged. The
expiration is enfeebled. The heart and circulation are disturbed ;
there is either a flushing of the face, or a deadly pallor. The skin
shows symptoms of derangement — the cold sweat, the altered odor
of the perspiration, the creeping action that lifts the hair. The
kidneys are directly or indirectly affected. The sexual organs feel
the depressing influence. The secretion of milk in the mother's
breasts is vitiated. The increased tension is shown in the stare of
the eye and the raising of the scalp (by the occipito-frontalis mus-
cle), in the inflation of the nostril, the shrill cry, tJie violent move-
ments of protection or flight. The stare of the eye is to be taken
as an exaggerated fixing of the attention on the dreaded object ;
and there concurs Avith it an equally intense occupation of the
thoughts in the same exclusive direction."

§ 437. In order to measure, in the next place, the legal relations

of fear, it is necessary to consider from what functions
fear^tothe of the mind it springs. Describing these functions ac-
^f^h**°°^ d cording to the definition already given, as (1) feeling,

(2) will or volition, and (3) thought, we may readily
conceive that fear, in its most simple and rudimental shape, may
flow directly and exclusively from feeling. A sleeping infant, or
an idiot, or an animal of the lowest grade, feels a puncture, and
starts convulsively back to prevent an extension of the wound.
But in almost every other conceivable case, fear is the result of
feeling and thought combined. In fact, in most cases, fear involves
the several powers which intellect includes — memory, perception,
conception, abstraction, judgment, and imagination. If the mind
be diseased, then it communicates its disease to the fear Avhich
flows from it, and this fear becomes an abnormal propensity.

' Mental and Moral Science, London, 1868, p, 233.

856

FEAR. [§ 441.

§ 438. Let us apply this to the case of a man killing Killing un-

dGr ttiG ill—

another under the influence of fear. This killing may fluenceof "
have been in order to avert the threatened danger from ^^^'
the person killed, or to avert it from self.

§ 439. Of the first class the principal instances are those of
homicides by parents of children to preserve the children
from starvation or some other impending disaster. In threatened
such cases, it is hardly possible to view the mind as sane, person
However it may be in barbarous lands, the systems of ^
charity existing in Christian countries are such as to make the kill-
ing of children by parents to avoid starvation explicable only on
one of two grounds — diseased imagination amounting to actual in-
sanity, or diseased pride by which such insanity is closely ap-
proached.

§ 440. But much more complex questions arise when insane fear
is set up to excuse the killing of another in supposed self- g j
defence. To consider these questions we must inquire posed seif-
what is the effect of fear on persons of imbecile or dis-
ordered intellects.

^ 441. First, as to the imbecile. On this point some s. in the
interesting observations are made by Professor Lazarus, beciies.
in the Zeitschrift fur Vblkerpsychologie for 1868.

" We often find in our lunatic asylums a general, and it may be
even said absolute, fear (Schreckhaftigkeit, Pantophobia), which
with us is a symptom of deep disease, but which is mentioned by
travellers as a not unusual occurrence among nations of a low order
of development. . . . Does it not seem when we enter a ward con-
taining nymphomaniac or similarly affected patients, as if we had
entered into a company made up of parties of Laps, or Jakutes,
whom Castren and Erman describe : 'A woman, alarmed by a sud-
den clapping of the hand, tore about as if frantic, biting and scratch-
ing all who were by. Another, when alarmed, threw her child in
the sea. A blow having been struck by a hammer on the outer
wall of a hut in which some Laps were sitting in careless conversa-
tion, they all fell instantaneously on the ground, twitched for a mo-
ment with their hands and feet, and then lay as motionless as
corpses. After awhile they began to move again, and then behaved
as if nothing unusual had happened.' This last peculiarity is
highly characteristic. ' The East-Jaken, like the Laps,' remarks

357

§ 442.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGIC ALLY.

Bastran, ' are very timid, and are frightened (as in Pantophobia)
by the merest trifles. . . . Every unexpected movement, every call
or whistle, and every surprise makes him beside himself, and throws
Mm in a sort of rage. By the Samojedens this rage is so great
that, without Jcnou'ing what they do, they seize the first axe, hnife,
or other weapon, and seek to wound the bystanders.^ ^^

Cases of a similar character are not unknown to our criminal re-
ports. Men of weak minds have been so affected by fear as in
their frenzy to strike down innocent strangers, and especially is
this the case with epidemic fears. Now, in such cases, the inquiry
is, was the defendant imbecile, or, at the best, of a low grade of
intelligence bordering on imbecility ? If he was, his action, in a
paroxysm of fear, was insane. But this mental imbecility must be
substantively proved.^ Fear itself is no defence ; for otherwise
there is no act of violence that could not be thus defended.

§ 442. The same distinction applies when the defence is an in-
sane delusion as to the person by whom the defendant

Fear with '^ ^

those whose believes himself to be endangered. A man conceives
are disor- that another is about to kill him, or to ififlict on him
dered. maiming or other great injury ; and in supposed defence

the assailant is intentionally killed. The plea of insanity, as is
elsewhere shown,^ may be rightfully interposed where the defendant
is acting under an insane delusion which, if true, would relieve the
act from responsibility, or where his reasoning powers are so de-
praved as to make the commission of the particular act the natural
consequence of the delusion. Even where there is no pretence of
insanity, it has been held, that, where a man, according to his own
lights, has reasonable ground to believe himself in danger of death,
this would be a good defence. ^ Such, indeed, was the ground of
the ruling in Levet's case ; a case which has stood the test of two
centuries, and which may be viewed as at the basis of the English
common law. The defendant, in that celebrated case,^ was abed
and asleep in his house, when he was told that thieves were break-
ing in ; and, in his fright, with his mind still torpid with sleep,

1 See articles in 1 Alienist and Neii- " Ibid. This is fully shown in Wh.
rologist, 106 ; IS Journ. Ment. Sci. Cr. L. 8th ed. § 491 et seq.

235. * Cro. Car. 438 ; 1 Hale, 42, 474.

2 Supra, § 125.

358

SIMULATED INSANITY.

[§ 443.

dashed down stairs, and ran his sword through a visitor who was
aiding one of the servants of the family. This was held homicide
by misadventure ; nor has this ruling ever been questioned. Nor,
though there is some conflict of decision when the defence set up is
simply weakness of intellect not amounting to imbecility, can it be
questioned that a similar result will follow in all cases where the
offence was the product of fear so shaped by an insane delusion as to
make the killing of the supposed assailant appear to the offender to
be the only means by which his own life could be preserved.

I. SIMULATED INSANITY.^

\_Fo7' cases of simulation, see Ajjpendix to third edition of this
work, §§ 834, 835, 836, 843.]^

1. Examination.

§ 443. In every case the examining physician will be led at once
to inquire, whether the apparent abnormal state of mind
be real or feigned. One thing, however, must not be of feigned
overlooked, and this is that impostors of this kind are
very rarely able to keep up the character of the disease assumed

' In relation to simulated insanity,
M. Orfila says, that, as there exists in
the world a very false idea of madmen,
the one who simulates insanity, after
this idea, will i^erform, at every in-
stant, contradictory and false acts ;
thus, he will pretend not to remember
his past actions, he will not recognize
those whom he knows very well, he
will not make a single correct reply to
questions that are addressed to him.
His features will not have the expres-
sion of such a violent condition ; he
cannot for so long a time prevent him-
self from sleeping ; he will play the
fool particularly whilst he thinks him-
self observed ; finally, his pretended
malady will not have developed itself
until he feared the pursuit of justice ;
it will not have been preceded by that
originality of character, by those
marked symptoms of moral disorder
which are observable in the majority

of cases of insanity. — Med. Leg., tome
i. p. 400. Paris, 1848. See also Med.
Leg., J.Briand, p. 396. Paris, 1852.
See, on this point, Principles of Medical
Psychology, being the outlines of a
course of Lectures by Baron Ernest
von Feuchtersleben, M.D. Vienna,
1845. Translated from the German by
the late H. Evans Lloyd, Esq. Revised
and edited by B. G. Babington, M.D.,
F.R.S., etc. London, printed for the
Sydenham Society, 1847, p. 376. See,
also, an article by Dr. Bucknill, 13
Am. Journ. of Ins. 354 ; and essay by
Dr. W. S. Chipley, in 22 Am. Journ.
of Ins. 5.

2 See, also, cases reported in 18 Journ.
Ment. Sci. 390 ; Waltz's case, rep. 31
Am. Journ. Ins. 50 ; GaiTey's case, 35
Am. Journ. Ins. 534 ; Barr's case, ibid.
411 ; also an article in 31 Am. Journ.
Ins. 24.

359

§ 444.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOaiCALLY.

with consistency, and without involving themselves in contradictions.
" How hard it is on the stage," remarks Dr. Bucknill,^ " and for a
few minutes onlv, for a man to represent the manners of a sailor, a
peasant, an old man, or any other characteristic manners, so that
the deception shall be acknowledged complete ! But the histrionic
powers of a feigning maniac or melancholic must be kept for days
and weeks on the stretch in the representation of manners and modes
of thought far more difficult to imitate than those which are usually
the subject of theatrical art. Dr. Rush is reported to have dis-
criminated feigned from real insanity by the relative rapidity of the
pulse ; Dr. Knight and other writers have claimed the same power
for the sense of smell. At the present day the deposits in the
urine would, Ave suppose, be appealed to. Much reliance, however,
is not to be placed upon any one, or even upon several, of the
physical signs of nervous disturbance. They have a scientific but
scarcely a diagnostic value. They may serve to direct the inquiries
of the physician, or even to confirm his opinion founded upon other
data ; but standing by themselves they are of little importance in
the diagnosis of insanity."

§ 444. It is important, to adopt here the precaution prescribed

by Schiirmayer,^ to watch the subject most closely when
servation he supposes himself least observed, as at such times he
necr^arv generally drops his mask, which is irksome to him. In

all such investigations the physician must never show the
most trifling sign of doubt or hesitation ; he must, on the contrary,
appear to know everything, in order to discover everything, and
must present a firm and imposing front in all his intercourse with
the accused. Where the disease in question is of such a nature,
as, if genuine, to interfere with or suspend sleep, it becomes neces-
sary to watch the patient unobserved at night. To subject him
purposely to mental irritation or excitement is improper, reprehensi-
ble, and liable to cause harm. Threats of painful medicines or ope-
rations are in Germany admissible where the processes threatened
are really indicated by therapeutics, but the execution of such threats
must depend upon the principles laid down in another part of this
work, in reference to the tests applicable to feigned bodily diseases.

> Bucknill on the Diagnosis of In- 2 Gericlit. Med. § 392. See §§ 341-
sanity. 344.

360

SIMULATED INSANITY. [§ 445.

2. Reasons for susjjecting.

§ 445. Schiirmayer gives the following reasons for suspecting
dissimulation or deception : —

1 . When the party has committed some act, the punishment of which
he would escape by inducing a belief in his aberration of mind, in this
case the comparison of the offence committed, with the form of mental
disease assumed, will often suffice to confirm the suspicion.^

2. When the individual has frequently expressed an aversion to
a particular occupation or profession he is expected to assume, as,
for instance, that of a soldier.

3. When the general character of the party is open to imputa-
tions of malice and deceit. ^

4. When it is impossible to discover any previous indications, phy-
sical or mental, of the pretended derangement of the mental faculties.^

A late German trial brings before us a state of facts well worthy
of being considered by those concerned in religious and moral
education. The parents of two girls, one eleven and the other
fifteen, claimed public relief on the ground that the latter Avere
subject to epileptic fits. The patients were for months subject to
medical scrutiny, and were received into a hospital, where, during
intermission, as well as of paroxysm, they were under constant ob-
servation. The elder, in particular, was affected by the disease in
its worst shape ; being prostrated by convulsive attacks of extraor-
dinary violence, which afterwards left her in a state of entire
exhaustion. Suspicion, however, was aroused as to the entire sin-
cerity of the patients, and one of the hospital officers, against the
vehement protestations of the medical attendants, threatened the
eldest of the two with severe discipline in case she should have
another fit. The attempt was successful. No fit was repeated ;
and the children confessed that, partly to excite sympathy, partly
to obtain money, the disease had been simulated.

In connection with this, we may observe the following remarks of
Dr. Carter, in his work on the Influence of Education on Diseases
of the Nervous System: —

' Compare Heinrotli, System der psy- lehre. Ansgabe von Daiiz. Leipsic,

chisch gerichtlichenMedizin. Leipsic, 1812, p. 380.

1825, p. 453. 3 Friedreich, Handbuch der gericht-

2 Heinroth, Medizinische Zeichen- lichen Psychologic, p. 155.

361

§ 446.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

" When once a young woman has discovered her power to pro-
duce a hysteric paroxysm at will, and has exercised it for her own
gratification without regard to the anxiety or annoyance it may
entail on her friends, a very remarkable effect is speedily produced
upon her whole mental and moral nature. The pleasure of receiving
unwonted sympathy, once tasted, excites a desire for it that knows
no bounds ; and, when the fits have become familiar occurrences
and cease to excite attention, their effect is often heightened by the
designed imitation of some other disease." Then, in the words of
Dr. Carter, " pleasure is morbidly associated with many ideas which
ordinarily excite pain. The girl, though originally amiable and
disinterested, derives a strange satisfaction from the sight of the
anxiety, and even the distress of her friends ; and thus proverbially
enjoys the idea of deceiving them."

Another writer thus speaks : " A person in the shattered state of
mind that follows some sudden affliction, finds the sympathy of
friends excited by very demonstrative grief. This in itself to many
minds is a natural outlet, and then with that strange selfish cunning
which never tempts the heart so fiercely as in such moments of
desolation, the paroxysms of grief are so timed as best to attract
the attention and secure the sympathy of those around. When
coarse ordinary grief ceases to do this, new forms of broken-heart-
edness are partly felt, partly feigned. Food is often refused.
Sleep is rejected. Very often these conditions, from being partly
affected, become wholly real. And yet, strangely enough, the suf-
ferer, when he thinks himself unobserved, Avill desist from them.
He will put on his mourner's air when he knows he is looked at ;
but, when he thinks himself unobserved, will permit himself to be
diverted. The only cure in such a case is for those about not to
pamper the hysteria, if such it be, by petting and soothing it, other-
wise it may become irradicable."

3. Forms generally simulated.
§ 446. The species of mental unsoundness most frequently imi-
^ ,. . tated by the vulgar is delirium — which, at the same time,

Delirium . . . .

the form of is that which it is the most difficult to sustain. Sheridan,

most usu- "with his usual tact, hit upon this when he made the mock-

fated^^"^^ author in the Critic throw his heroine into precisely this

stage : —

362

SIMULATED INSANITY. [§ 447.

Enter Tilburina and confidant, mad, according to custom.

Sneer. But, what the deuce, is the confidant to be mad, too ?
Puff". To be sure she is ; the confidant is always to do what her mistress
does ; weep when she weeps, smile when she smiles, go mad when she goes
mad. Now, madam confidant — but keep your madness in the background, if
you please.

Tilb. . . . The wind whistles — the moon rises — see.
They have kill'd my squirrel in his cage !
Is this a grasshopper ? — Ha ! no ; it is my
Whiskerandos ; you shall not keep him —
I know you have him in your pocket.
An oyster may be crossed in love ! — who says
A whale 's a bird ? — Ha ! did you call, my love ?
He 's here ! he 's there ! He 's everywhere !
Ah me ! he 's nowhere ! [Exit.

Puff. There, do you ever desire to see any body madder than that ?
Sneer. Never while I live !

Puff. You observed how she mangled the metre ?

Dang. Yes — egad, it was the first thing made me suspect she was out of her
senses ?

Sneer. And pray, what becomes of her ?

Puff. She is gone to throw herself in the sea, to be sure ; and that brings us
at once to the scene of action, and so to my catastrophe — my sea-fight, I mean.

§ 447. Yet it is much more easy to counterfeit imbecility in its
lower sta.ges, as maction rather than action is then re-

=" ' Yetimbe-

quired. cllity easier

"The feigning madman in all ages has been apt to ^*
fall into the error of believing that conduct utterly outrageous and
absurd is the peculiar characteristic of insanity. The absurd con-
duct of the real madman does not indicate a total subversion of the
intelligence ; it is not utterly at variance with the reasoning pro-
cesses ; but it is consistent either with certain delusive ideas, or with
a certain perverted state of the emotions. In the great majority of
cases, feigned insanity is detected by the part being overacted in
outrageousness and absurdity of conduct, and by the neglect of
those changes in the emotions and propensities which form the more
important part of real insanity. Sometimes mania is simulated — •
the man howls, raves, distorts his features and his postures, grovels
on the ground, or rushes about his room and commits numberless
acts of violence and destructiveness. If he has had the opportunity
of observing a few cases of real insanity, and if he is a good mimic,
he may succeed in inducing a person who only watches him for a

363

§ 447.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

few minutes to believe that he is in the presence of a case of acute
mania ; but if the case is watched for a few hours or days, the de-
ception becomes apparent. No muscular endurance and no tenacity
of purpose Avill enable the sane man to keep up the resemblance of
acute mania ; nature soon becomes exhausted, and the would-be
patient rests, and at length sleeps. The constant agitation, accom-
panied by symptoms of febrile disturbance, by rapid pulse, foul
tongue, dry'and harsh or pallid, clammy skin, and long-continued
sleeplessness of acute mania, cannot be successfully imitated. The
state of the skin alone will frequently be enough to unmask the
pretender. If this is found to be healthy in feeling, and sweating
from the exertion of voluntary excitement and effort, it will afford
good ground for suspicion. If after this the patient is found to
sleep soundly and composedly, there will be little doubt that the
suspicion is correct.

" Chronic mania may be imitated ; and if this should be done by
an accurate observer of its phenomena, who also happens to be an
excellent mimic, it cannot be denied that the imitation may deceive
the most skilful alienist. It is remarkable that two of the most
perfect pictures of insanity presented to us in the plays of Shak-
speare are instances of feigned madness — namely, the madness of
Hamlet, assumed to escape the machinations of his uncle, and that
of Edgar, in Lear, assumed to escape the persecutions of his
brother. These inimitable representations of the phenomena of
insanity are so perfect that in their perusal we are insensibly led
to forget that they are feigned. In both instances, however, the
deception was practised by educated gentlemen ; and on the
authority of the great dramatic psychologist it may, perhaps, be
accepted that the phenomena of insanity may be feigned by a
skilful actor like Hamlet so perfectly that no flaw can be detected
in the representation. Fortunately for the credit of psychologists,
insanity is rarely feigned except by ignorant and vulgar persons,
who are quite unable to construct and to act out a consistent system
of disordered mind. It must be remembered that all the features
of every case of insanity form a consistent whole, which it requires
as much intelligence to conceive and to imitate, as it does to con-
ceive and to imitate any dramatic character. The idea which the
vulgar have of madness is of quite a different kind. They repre-
sent it as a monster, half man, half beast ; the emotions they repre-
364

SIMULATED INSANITY. [§ 449.

sent unchanged and human, the intellectual functions they represent
entirely perverted, grovelling, and bestial. They think that mad-
ness entirely alters the character of a man's perceptions and utterly
destroys his judgment, so that he not only ploughs the shore and
sows salt for seed, but that he cannot recognize his own son or
avoid the destruction of his life. In more homely cases it will be
found that men feigning insanity pretend that they cannot read or
write, or count ten correctly, or tell the day of the Aveek, or how
many children they have ; they answer every question wrongly,
which a real lunatic, who could be made to understand the question
and to answer it at will, would certainly answer right. "^

§ 448. The simulation of mania is beset with peculiar difficulties,
arising from the fact just mentioned, that most simulants .

assume that maniacs reason illogically from logical pre- difficult to
mises, instead of logically from illogical premises. But,
as a general rule, the maniac follows, in mental processes, the neces-
sary laws of association.^

§ 449. The simulation of entire oblivion, as to the res gestce of
guilt, is a common but at the same time a suspicious
device of experienced offenders.^ The risk of this arises oblivion
from the fact that the conditions in which actual amnesia ''•^^^*^'^ •
intervenes are well known in medical science, and their absence
betrays the simulation. Thus the simulant is ready enough to
betray a remembrance of exculpatory facts coincident in time with
the condemnatory facts which he sedulously forgets ; and he is apt
to fluctuate in the limits which he assigns to his oblivion even of
inculpatory incidents. It is, as Dr. Krafft-Ebing* pertinently re-
marks, peculiarly suspicious, when oblivion suddenly protrudes
itself after arrest. On the other hand, cases are not rare where
persons of weak mind, shocked by a sudden accusation of guilt of
which they are innocent, have broken down mentally and nervously
under the charge, and have become actually deranged. An unre-
ported case may be mentioned as illustrative of this position. An
.American clergyman of respectability was charged, and on evidence

• Bucknill on Diagnosis of Insanity, see a learned essay by Dr. Nieliolsou

* See on this Dr. Krafft-Ebing's in the Journal of Mental Science for
Essay on Simulation, in Friedrich's Jan. 1870.

Blatter for 1871, p. 163, and Combes's ^ See supra, § 410.

Annal. Med.-Psy., 1866, p. 349, and < Friedreich's BUitter for 1871, p. 168.

3t)5

§ 451.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

of much strength, with a serious sexual crime. He was thrown into
a state of the highest nervous and mental excitement by the charge,
made an incoherent confession, and then fled the country. It sub-
sequently transpired that the charge was fabricated from beginning
to end, that the whole process was one of black-mailing, and that
the fugitive, whose mind was actually upset by the charge, was
entirely innocent. And, independently of the moral shock produced
by an accusation of guilt, imprisonment, by itself, may produce
insanity.

§ 450. The physiognomy of mature madness does not admit of

imitation — though the case is otherwise with imbecility,
nomy slid The demeanor of the individual under threats, or even
examined"^ under the application of painful remedies, is a criterion

of inferior value, because skilful impostors withstand the
test, and because many who are really affected, particularly before
the disease has assumed a settled character, manifest fear and dread
of such remedies, and retain, in a considerable degree, sensibility
to pain. The torpor of the stomach and bowels under the use of
emetics and purgatives is equally unreliable, because the same
condition is found unconnected with unsoundness of mind ; of greater
value is sleeplessness, which a deceiver will not long sustain after
the fashion of lunatics.^

§ 451. The shortest road to certainty; ^ is by comparing the case

in hand with those recorded or experienced, and by a
son of cases strict application of the inductive tests. Experience
tes^t^"'^^^* teaches that the various abnormal conditions of the mind

have certain symptoms in common, by means of which
they admit of being arranged in greater or smaller subdivisions,
and finally of being reduced to certain clearly defined forms and
combinations of forms. Although every case, to a certain extent,
furnishes its own rule, yet this logical process will be of great avail
in detecting dissimulation, on the one hand, or groundless imputa-
tion of insanity, on the other. The more the phenomena of a case
of alleged insanity subject to examination differ from recorded ob-
servations, or the more a person of dubious insanity presents an

' Schiirmayer, Gericlit. Med. § 533. clien Momente der Zurechnungsfaehig-
See supra, § 345. keit, p. 97.

* Ellinger, Ueber die anthropologis-

366

SIMULATED INSANITY. [§ 452.

array of symptoms at variance with the form of the disease to
■which they ought to belong, the more reason is there to guard
against deception.^ At the same time, it must be admitted that the
science of psychical medicine has not attained such a degree of per-
fection, as to exclude entirely the possibility of cases arising which
would not admit of being classed with any of those already observed
and noted. At times they incline to mere moral perversity, and
are often treated as such for years ; or the disease itself is not yet
clearly developed ; or, finally, it has apparently ceased, or arrived
at a stage in which the patient is able to control and direct his con-
dition, as a drunkard his intoxication.^

4. Not proved hy sanity at trial.

§ 452. For the following reasons, simulation is not Reasons for
always to be inferred from the absence of insanity at * ^^'
the time of the investigation : — ^

a. Patients, whose minds are unsound on one subject only, have
the power of burying their madness in their own hearts, to such an
extent as to betray no sign of derangement in the course of the
examination ; because it is not necessary that the disturbance of
one function should impair the apparent action of the others.
There are many cases, which have been in part noticed, and some
of which will appear in the course of the following pages, in which
the sufferer is insane on one subject alone, while all the other
operations of his mind proceed as if unimpaired, so that any one
unacquainted with the fixed idea which controls him would pro-
nounce him perfectly rational.^

h. It is established by experience, that lunatics, even when their
disease is not that of monomania, enjoy intervals in which their
understanding has not only its normal vigor, but even displays
uncommon powers.^

c. A genuine mental disease may be suspended or removed by

' Marc, Die Geisteskrankheiteii, etc., nalen einer Anstalt fiir "Wahnsiniiige,

vol. i. p. 104. Hanover, 1804, p. 341. Esquirol, Note

' Scliiirmayer, Gericht. Med., § 533. sur la monomanie homicide, Paris,

3 Compare Friedreich, p. 165. 1837, p. 3.

* Compare Wagner, Beitrage sur ^ Muratori, Ueber die Einbildungs

Philosophischen Anthropologie, Vien- Kraft, Leipsic, 1785, vol. ii. p. 8.

na, 1794, vol. i. p. 114. Perfect, An- Keil's Rapsodien, p. 7(5.

367

§ 454.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

the very circumstance •which gives rise to the investigation, in
analogy to the cases of madmen restored to health by great mental
and moral shocks, as well as of persons attempting suicide from
melancholy or despair, who are cured of their folly by the impres-
sions received while making the attempt.^

§ 453. Another consideration which must never be lost sight of

in investigations of the kind is this, that a pretended
^ganfty^*^ mental disease may turn into a real one.^ A man who
may turn makes every effort to appear deranged may be so much

affected by his efforts that what he pretends may assume
a reality in his mind, and he become in fact insane.^ In conclusion,
there is also a class of cases in which genuine paroxysms of ma,d-
ness alternate with pretended ones, which calls for especial caution
in pronouncing upon them.*

5. Tests.
\_See cases, in 2>d edition, §§ 834, 885, and partieidarly § 836.]

§ 454. There are persons of unsound mind, who, in the incipient

stages of the disease, retain sufficient consciousness to

tions for endeavor, for various reasons, to conceal their malady.

covery'of ^ Continued attentive observation of such individuals

concealed ^y^]! however, suffice, in general, to furnish the data for

insanity. '

a correct view of the case. But even m cases of con-
firmed insanity, an occult condition, so called, may occur, in which
the madman tries and manages to conceal his ailment, or rather his
impulses, fancies, and feelings. This is particularly frequent in
lucid intervals and in partial insanity.^ To interrogate the patient
directly to the point is of very little avail, for, if he is anxious to
conceal his madness, any questions will inspire him with a suspicion

> Etudes Medico-Psychologiques sur Leipsic, 1852, p. 397. And Pye, Auf-

r Alienation Mentale, par L. F. E. saetze, etc., aus der gerichtlichen Arz-

Renaudin, chap. ix. p. 522. Paris, neiwissenschaft, third series, p. 219.

1854. And see particularly Schiirmayer, §

2 For an interesting essay on Mono- 535, whence the above observations are
mania induced by imitation, see 1 Am. drawn.

Journ. of Insan. 116. ^ Friedreich, Diagnostik, p. 38 ; and

3 Ibid. 172. his Handbuch der gerichtlichen Psy-
* Compare Neumann, Die Krank- chologie, 175.

heiten des Vorstellungsvermoegens,

368

SIMULATED INSANITY. [§ 454.

of the questioner which must frustrate all such efforts. Under such
circumstances, the following suggestions will be found useful : —

a. By bringing the patient into a succession of different relations
of life, and regarding closely the effect produced upon him, some
indications of his fixed ideas may be made to escape him. If the
subject of his lunacy is thus brought into question, by contradicting
his views in connection with it, the perversion of his intellect will
be doubly apparent.

h. It is, as has been heretofore shown,^ important to furnish the
party with pen, ink, and paper, and induce him, under some pretext
or other, to write ; he will not be able to refrain from setting down
something which will throw more or less light on the nature of his
derangement.

c. Heindorf proposes that the physician should narrate the
patient's own history, or so much of it as he had learned or could
surmise, to the patient, as the history of the physician; this is to
enlist the confidence of the patient and make him suppose a parallel
between his own case and that of the examiner, so that the dulce
habere soeium malorum may elicit circumstances which he would
otherwise have concealed.

d. A similar proposal is to associate the individual with another,
of equal rank, degree of education, social position, etc., with him-
self, as a confidant, as persons of this description generally display
more frankness towards people of their own order, than towards
those whom they regard as above them. This idea, however, it
will be easily seen, is very difficult of practical application.

The tests which may be applied at a medico-legal examination
have been noticed under a previous head.^

Though patients of this kind may conceal, they can never deny
their fixed ideas. Many persons, says Heinroth, who, in a healthy
state, had no scruples in telling a large series of falsehoods, when-
ever their interest required it or a confession of the truth would
subject them to a disagreeable exposure, forget all this the moment
they have a fixed idea to maintain. Then they overlook every ad-
vantage, and stand at no absurdity and no disgrace. To hold fast
the fancy which enchains them, is their only aim. If the physician
can discover this fancy, he has but to ply the party with questions

1 Supra, § 386. 2 Supra, §§ 345-382.

VOL. I.— 24 369

§ 457.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

in reference to it, to make him betray himself, and in many cases
disclose more than the inquirer had ever thought of investigating.

§ 455. Artificial instrumentalities, though sometimes of doubt-
Artificial ^^ propriety, have been not infrequently used to test
tests some- simulation. The consequence may be at least to relieve
times used. . /> n , mi -tn oi i •

the question oi doubt, ihus Dr. fetoltz, m an essay in

the Wiener Med. Wochenschrift for 1870, mentions an instance
where chloroform was employed in such a way as to show that the
plea of irresponsibility was well-founded. The patient purported
to be deaf and dumb, and he was narcotized, with the expectation
that, if he was really capable of speech, this capacity would exhibit
itself, either when he was in the condition of trance, or in the pro-
cess of recovery of consciousness. He was placed under the influ-
ence not only of alcohol, but of chloroform, without an articulate
sound being produced. The conclusion was that his disease was
not feigned. In cases of simulated insanity, Dr. Stoltz is strongly
of opinion that chloroform and ether may be successfully used as
detectives. Dr. Nicholson, in the Jouriial of Mental Science for
January, 1870, expresses the same opinion as to the use of electri-
city ; though as a general rule, he considers the use of artificial
agencies in such cases as objectionable on moral and humane
grounds.^

§ 456. Periodicity is a necessary condition, as has been seen,
of certain phases of insanity, and Avhen this periodicity
city a test fails, when, in other words, the symptoms which should
a condi- ^^ periodical and intermittent are exhibited in uninter-
^^nit^'^ ^^' naitting constancy, then there is serious ground for sus-
picion.
§ 457. By counsel who are charged with examining alleged
lunatics, the following points may be kept in mind : —

a. Silence or evasion of questions, on the plea of weakness of
memory, or confusion of thought, is always suspicious.
evasion of It is, as is well known, and as was conspicuously illus-
?uspSuT ^^rated in the case of the Italian witnesses produced to
criminate Queen Caroline, the usual resort of a witness
who fabricates a case, and who has skill enough to know that full
and free replies will involve him in contradictions. To the idiot, it

' See appendix No. ix. 3d ed. of this work.

370

SIMULATED INSANITY. [§ 459.

is true, or the maniac whose phase is silence, silence is natural ;
but cases such as these are capable of abundant proof aliunde. The
imbecile, however, and the person laboring under the ordinary
phases of amentia, is talkative enough, and answers where he can,
■whether coherently or incoherently. Suspicion should be pecu-
liarly aroused when the examinant, on the plea of weakness of
mind, avoids answering, not merely those questions concerning
"which such weakness might naturally be pleaded, but those which
concern facts which must be indelibly imposed on the memory, such
as parents, place of education, prominent places of abode. The
tendency of true imbeciles to vague and rambling conversation is
unmistakable. Their attention is not to be fixed on the examiner ;
their eyes wander around the room, and, if they see a relative or
friend, they look to such dependently to help them to a reply ; they
often repeat feebly to themselves the question, as if to lead them in
their reply.

b. § 458. The allegation of " delusion," or " hallucination" is
one which the real lunatic rarely advances. Just be-

. p • 1 . 1 1 IP Real luna-

cause he believes m these fancies, he is loath to speak of tics rarely
them when under examination, because he is loath to edge deiu-
have them the subjects of criticism. The difficulty, in- ^^*^^®-
deed, of extracting from the real lunatic a confession of such be-
liefs, is well known ; sometimes the most experienced examiner is
bajffled for hours, and the secret is at last only elicited by a surprise.'
On the other hand, simulants are apt to push such alleged delu-
sion, especially that of " persecution," prominently forward, for-
getting that for a person to declare that he suffers under a delusion
that he is persecuted, is to admit that he knows that he is not per-
secuted at all. 2

€. § 459. Most difficult is it for the simulant to play consistently
for any length of time his feigned part. He has, in the
first place, to select intelligently some one particular simulation
phase of insanity, for such phases are several, with very po™g°bie™"
distinct characteristics. He must then, when he writes,
or when he speaks, in the court room, and in his chamber when he
believes himself unobserved, in periods of lassitude as well as in
periods of excitement, preserve these characteristics. In this even

I See supra, § 378. ^ See supra, § 385.

371

§ 460.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

the most consummate actors would fail ; and simulants of insanity
are not often consummate actors. They generally seize upon de-
lirium, and in this, if they are long watched, they are betrayed by
their over-acting when they think themselves watched, and their
repose when watching appears to them to have ceased. The real
maniac, also, is laboring under a nervous excitement which makes
him sleepless, and invests him with singular and persistent muscular
vehemence. The simulant has no such abnormal frenzies ; he must
sleep and rest, as a recruiting process for his very simulation.
This, however, is but a single type. The simulant may select some
other ; often some of which he may have had opportunity of per-
sonal observation. But in the long run similar discrepancies will
be betrayed. And again, there are some signs which it is very
difficult to imitate. Muscular twitching ; vague simpering and self-
talking both when alone and in company ; the eye, whether lack-
lustre or wild ; these no mimic can persistently feign.

d. § 460. Yet it must not be forgotten that simulation does not

exclude insanity. Epileptics, and persons subject to

lation^^'es hysteria, are apt to exaggerate some symptoms, and sim-

not exclude yjate others. But this kind of simulation confines itself

insanity.

to those symptoms which are likely to attract sympathy,

such as delusions and nervous or physical disease. Simulated

mania or idiocy rarely is attempted except by the responsible or

sane.

372

AS CONNECTED WITH PHYSICAL DISORDERS.

CHAPTER IV.

MENTAL UNSOUNDNESS AS CONNECTED WITH PHYSICAL

DISORDERS.

I. As CONNECTED WITH DERANGEMENT OF

THE Senses, and Disease.
1. Deaf and dumb.
(a) Psychologically.

Responsibility of deaf-mutes condi-
tioned on education, § 461.

Test of capacity, § 462.

Capable of instruction, § 463.
(6) Legally.

Prima facie capable of business and
responsible, § 464.

Illustrations, § 466-468.

2. Blind.
Blindness does not affect responsibility,
§469.

3. Epileptics.

Peculiar tendency of epilepsy to insan-
ity, § 470.

Nature of epilepsy, § 471.

Distinction between the several classes,
§472.

Existence of obscure epilepsy, § 473.

Different stages of the disease, § 474.

Epilepsy not affecting responsibility,
§475.

Rule as to intermediate stages, § 476.

Tests laid down by Ciarus, § 477.

Different conditions of intermediate
stages, § 478.

Dr. Maudsley on moral effects of epi-
lepsy, § 480.

Murder during epileptic attack — Law-
ton's case, § 481.

II. As CONNECTED WITH SlEEP.

Division of this subject, § 482.
General effect of sleep on the senses,
§483.

1. Somnolentia, or sleep-drunlcenness.

Somnolentia defined, § 484.

Cases of irresponsibility produced by
sleep-drunkenness, § 485.

Somnolentia distinct from somnambu-
lism, § 487.

Necessary tests to determine responsi-
bility, § 488.

Observations of Dr. Kriigelstein, § 489.

Cases given by Dr. Taylor, § 490.

Somnolentia as a defence may be un-
duly strained, § 491.

2. Somnambulism.

Conditions of somnambulism, § 492.

Somnambulism a species of delirium,
§493.

Instances of somnambulism producing
unconsciousness and irresponsibility,
§494.

Dr. Abercombie's views on subject —
somnambulist not resiaonsible for his
acts, § 496.

Instances of somnambulism, § 498.

Causing involuntary homicide, § 499,

Opinion of Sir W. Hamilton that con-
sciousness is present in somnambu-
lism, § 500.

Statement of Prof. lessen, § 501.

373

§ 461.] MEXTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

III. As AFFECTING THE TEMPEEAiIE^"T.

1. Depression.

Depression often a transition stage to

insanity, § 502.
Views of Morel on depression, § 503.
Of Eeid, § 505.
Depression often intermittent, § 506.

2. Hypochoiidria.

Hypochondria the state of total depres-
sion, § 508.

Description of lirpoclaondria, § 509.

Hypochondria does not destroy respon-
sibility nnless complicated and aggra-
vated, § 511.

Is often complicated with other diseases
diminishing responsibility, § 512.

Distress of body may relieve distress of
mind, § 513.

Hypochondria may be controlled by
the will, § 514.

Or dispelled, § 515.

3. Hysteria.

Hysteria mnch like epilepsy, § 517.

Symptoms of hysteria, § 518.

Hysteria may produce delusions affect-
ing responsibility, § 520.

But attacks of hysteria rarely esclude
responsibility, § 521.

Dr. Maudsley's description of hysteria,
§ 522.

4. Melancholia.

Melancholia is settled and continuous
depression, § 523.

Characteristics of melancholia, § 524.

It is often due to sexual causes, § 525.

May produce mental confusion and loss
of self-control, § 526.

And development of abnormal im-
pulses, § 527.

Or conscious acts induced by halluci-
nations or delusions, § 528.

Homicide or suicide under influence of
depression, § 529.

Generally preceded by a state of calm,
§ 530.

I. AS CONNECTED WITH DERANGEMENT OF THE SENSES, AND DISEASE.

1. Deaf and dumb. '^

(a) Psyclwlogically.

§ 461. The dmf and dumb, where their infirmity is congenital,
or contracted in early infancy, are always in an abnor-
mal mental and moral condition, o^ing to the absence of
hearing and speech, the two main faculties for culture. ^
For this reason, only the permanently and absolutely
deaf and dumb come now under consideration, and in
such cases the point of inquiry will be the degree of development of
the mental and moral powers, that is to say, of the power of under-
standing the consequences and the wrongfulness of the act com-

Responsi-
bility of
deaf-mutes
condi-
tioned on
education.

1 See an interesting treatise on this
point, 8 Am. Journ. of Ins. 17. L.
Krahmer, Handbuch der Gericht. Med.
Halle, C. A. Scliwetschke, 1851, § 122.
A valuable essay by Dr. E. Peet on

374

Deaf-mutes will be found in the Pro-
ceedings of the N. Y. Med. Leg. Soc.
(N. Y. 1872) pp. 516-545.

2 Friedreich, Handbuch der Gericht-
lichen Psychologie, p. 659.

DEAF AND DUMB. [§ 462.

mitted. What will always exert great influence is the question
whether the deaf and dumb person has received any, and what
instruction ; where no instruction has been efficient, there is always
great reason to conclude that the psj'chological conditions are want-
ing upon which moral responsibility depends.^ The most difficult
part of the task is always the examination of the individual, which,
to lead to a reliable result, requires the assistance of an adept —
that is to say, a teacher of the deaf and dumb. In pronouncing
upon such cases, it must not be forgotten that the permanently and
absolutely deaf and dumb have a peculiarly irascible disposition,
and that many of them, especially those whose features are marked
by froward, morose, gloomy, and sinister expression, and more or
less resemble those of the cretins, are born with a tendency to
deceit, malice, cunning, duplicity, and cruelty.^

§ 462. In regard to the form and manner in which the intellectual
condition of the deaf and dumb should be examined and Tests of
probed, Hoffbauer and, after him, Freidreich have given ^'^P^city.
^ series of directions substantially as follows : Where the deaf and
dumb person is able to understand spoken words by following the
motions of the lips, the inquirer must speak distinctly and with
marked articulation, so as to enable the patient to see what he says.
Where oral examinations are impracticable or unsatisfactory, the
scrutiny, if possible, must be made in writing, when it becomes
especially important to propound simple questions, intelligible to
every one. But they must not be such merely as the patient is
likely to expect beforehand, for these might be answered promptly
and correctly ; not, however, because he has properly examined
into and understood their meaning, and properly concentrated in
his own thoughts the answer he returns, but because he considers
the question as written down, without thinking further about it, as
a request to commit to paper that which may be a mere mechanical
form. And yet so long as these answers are correct, or, if not
correct, at least congruous, there is room to believe that the ques-
tions were understood by the patient, and that he is able, to a cer-

' See J. Briand, Med. Leg., article Paris, 1848. Also, Trait6 des maladies

sur la surdi-mutite, p. 569, Paris, de I'oreille et de I'audition, par Itard,

1852. See also M. Orfila, Med. Leg. vol. xi.

sur la surdi-mutite, tome i. p. 460, * Schiirmayer, Gericht. Med., § 562.

375

§ 463.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

tain extent, to make himself intelligible to others by means of
■writing. But the contrary does not appear if his answers are
incongruous. But if several answers are incongruous, and particu-
larly if it is found that a certain number of answers are constantly
repeated, no doubt remains that the individual, however capable of
tracing written characters, is not able, in the proper sense of the
word, either to read or write. Where it is necessary to converse
with the deaf and dumb person by means of signs, and for this pur
pose to call in the assistance of an expert, the capacity of the latter
must be so far taken into account as to obtain the assurance that he
will speak and interpret according to the intention of the judicial
purpose had in view ; for which reason it will be important to instruct
the interpreter fully on this subject. It may also be necessary,
and is declared indispensable by some,^ to employ two interpreters
at the hearing. Itard is of opinion that the intellectual capacity of
a deaf and dumb person should be tested by a written colloquy,
and that, if incapable of taking part in such communications, he is
to be looked upon as lacking the necessary instruction, and idiotic.
The same high authority further remarks that, if a deaf and dumb
man denies having received any instruction, in the hope of escaping
punishment on the score of ignorance, the proper course is to accuse
him of a graver crime, and one of another character from that
imputed to him,^ and that, on the whole, a deaf and dumb man who
■understands the questions asked of him in writing is much the same
as a man entirely compos mentis. Marc says that, when the re-
sponsibility of a deaf and dumb person who has been taught to con-
verse is in question, a hearing should be had, without any judicial
preparation, under the form of a conversation on general subjects
entirely foreign to the offence committed, from which, by an asso-
ciation of ideas, a transition should be effected to general questions
of morals and social order.

§ 463. " There is but little difference," says Orfila, " between
Capable of ^"^^ uninstructed deaf and dumb and the idiot, and such
instruction, jg ^j^g affinity existing between these two conditions of
the intelligence, that more than the fortieth part of the deaf and

' Kleinsclirod. in order to justify himself, and ■will

2 If he kno-ws how to -write, he ■will thus show the -whole range of his in-
have immediate recourse to this method telligence.

3i6

DEAF AND DUMB. [§ 464.

dumb are afflicted with idiocy. It may be that this mental incapa-
city is the result of inaudition, or it may depend upon the same
cause that paralyzed the auditive sense. It should be observed,
however, that the idiot is incapable of learning, whilst the deaf and
dumb, on the contrary, can receive an almost complete education.
Even if the uninstructed deaf and dumb do not know all the conse-
quences of certain criminal actions, still they are not slow in learn-
ing that these actions are censurable, and even that they are the
subject of punishment."^ But, though a party seeking to charge
an uneducated deaf-mute has the burden on him of proving some
degree of intelligence on the part of the defendant, yet, when this
is shown, the defendant can no longer plead his disability as a bar.

(&) Legally.
§ 464. In addition to the former remarks on this point,^ it may

now be stated:— ^ Prima facie

a. The deaf and dumb can exercise control over prop- capable of

business

erty. In 1754, a woman born deaf and dumb, upon andrespon-
arriving at the age of twenty-one years, applied to the
English court of chancery for the possession of her real estate, and
for the enjoyment of her personal estate (it is presumed that she
had been previously under the control of a guardian). Upon her
appearing before the chancellor. Lord Hardwicke, he put questions
to her in writing, and, receiving suitable written answers, her appli-
cation was granted.

h. They can take by descent, a point which we believe has never
been disputed.

c. When otherwise of disposing capacity, they can make a valid
will.

d. Even though uneducated, if capable of intelligently bargaining
(though it seems the burden of proving this is on the party seeking
to charge them), they may make a valid contract, or convey real
and personal estate.^

e. If coynpos mentis they can contract matrimony.'*

> Med. Leg., tome i. p. 460. Paris, * Swinburne on Spousals, cited 13
1848. Am. Journ. Ins. 127.

2 Supra, § 95.
8 See supra, §§ 95-98.

377

§ 464.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

/. They can be examined as witnesses in courts of justice ; and
for this purpose it is proper that their testimony should be inter-
preted through media which they best understand.^

g. They are legally responsible for ci'imes in the same way as
other persons, though, in determining the question of sanity, their
disability, when not removed by education, should throw on the
prosecution the burden of proving them to have some degree of in-
telligence.^

" The favor of courts and jurists may also be justly invoked for
a deaf person in cases where he has acted under erroneous impres-
sions natural to one in his circumstances. Deaf-mutes, and deaf
persons who are not quite dumb, are often suspicious and irritable,
from their inability to hear and take part in what is going on around
them. They sometimes take as intentional annoyance and insult
gestures of practical jests, unskilfully made, which were merely in-
tended as friendly pleasantry. Piroux records the case of Jean-
Baptist Villemin, a deaf-mute of twenty -nine years, very imper-
fectly educated, and of feeble capacity. Placed by the wealth of
his family above the necessity of manual labor, and incapable of
intellectual labor, he fell into dissolute habits, wandering idly about
the fields and frequenting public houses. One night, in a tavern,
he met a man named Marchand, who attempted to amuse himself
and the company by making signs to the deaf-mute which the latter
did not understand. Villemin indicated by a gesture that he de-
sired to be let alone ; but Marchand continued to annoy him, seizing
his head, making a bite at his nose, and brandishing round his head
a cane, which he then held in the attitude of firing a gun, saying to
the company that he Avished to invite Villemin to go a hunting.
Villemin naturally lost his patience ; unable to understand what
was meant by Marchand, or to express his own sentiments, except
by actions, he seized the aggressor, flung him on the floor, and gave
him a kick on the head. Marchand w^as only slightly hurt. The
company declared, and he admitted, that he was himself to blame ;
and he said he harbored no ill-will to Villemin for what had passed.
Returning home, a distance of several leagues, on foot, he fell sick
and died of a disease of the chest, which his family chose to ascribe

« Wh. Cr. Ev. § 375 ; 13 Am. Journ. 2 See supra, §§ 95-98.
Ins. 155,

378

DEAF AND DUMB. [^ 466.

to the blows which he had received from Villemin — which, however,
was disproved by the medical witnesses. The deaf-mute was, in
the first instance, sentenced to two months' imprisonment ; but, on
an appeal to the Cour Royale of Nancy, in consideration of the un-
fortunate condition of Villemin, and of the brutal and inconsiderate
conduct of Marchand, the term was reduced to six days.^

§ 465. " Other cases may easily be supposed in which a deaf
person may be led to violent conduct by his inability to hear, and
to understand what is meant by others. An impatient man, for in-
stance, requests a deaf-mute to get out of his way, and, not know-
ing that the latter could not hear his request, attempts to shove him
aside, thus provoking a manual retort. A deaf-mute may also
erroneously conceive himself wronged in making change, or in price,
weight, or measure, and break out into violence. In such cases,
we are confident, there are very few who would undertake a prose-
cution for violence by a deaf-mute, after becoming aware of his
peculiar condition

§ 466. " At Cologne, on the 14th and 15th of August, 1829, the
royal court of assizes was occupied by an accusation mustra-
against a deaf and dumb journeyman shoemaker, Johann tious.
Schmit, of Kreuznach, who, enraged at being upbraided for the
defects of his work, had stabbed his master with a knife. The
principal question discussed was whether the early instruction and
moral and intellectual state of the deaf-mute made for or against
his accountability. The jury found that the unfortunate murderer
was not accountable; and he was, therefore, acquitted of the charge,
and dismissed free into the street. This (adds the editor of the
Hamburg Report), it is to be hoped, was not without that solicitude
that might secure a better education to the unfortunate man, then
twenty-three years old, and sufficient precautions lest he should
become possessed with the idea that he could do such acts with
impunity."

"• A much more aggravated case than the foregoing was that of
Michael Boyer, an uneducated and vagabond deaf-mute, of about
twenty-seven or twenty-eight years, who was brought before the
court of assizes of Cantal (France), under the triple charge of rape,
murder, and robbery, committed on a girl of eleven years, whom he

' Piroux's Journal, i. 46, 59.

379

§ 467.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

met in a lonely place on Christmas day, 1843, on her way to the
residence of an aunt in a distant village, with whom she was to
spend the winter in order to attend school. Boyer was proved to
have pursued other females with evident intentions of violence, and
had been, some years before, condemned to three years' imprison-
ment for theft. The evidence, though circumstantial, was con-
clusive. It is not to our purpose to detail it. We observe, however,
that the prisoner, being interrogated through M. Riviere, director
of the school for the deaf and dumb at Rodey, denied, energeti-
cally, the principal facts imputed to him, and succeeded in making
it understood that he maintained that the blood observed on his
garments came from a wound in the head, occasioned by a fall
while in liquor. What plea was by his counsel set up in defence
we are not informed. The jury found him guilty of the triple
charge, but admitted extenuating circumstances — a verdict the effect
of which was to save the prisoner's life. He was condemned to
hard labor for life, and to the exposition puhlique (pillory, or
stocks).^ It should be observed that the only extenuating circum-
stances that appear in the narrative of this fearful crime were the
total deprivation of instruction, and neglected, vagabond state of the

criminal

§ 467. "Another deplorable instance of the ungovernable pas-
sions of too many uneducated mutes is furnished by the case of
Pierre Lafond, who having been repeatedly detected in thefts of
the property of his uncle and aunt, by whom he had been adopted
and brought up, his aunt was at length provoked to the degree of
following and reproaching him in the presence of a young neighbor,
of whom Lafond was enamored. Watching an opportunity to exe-
cute the vengeance that rankled in his heart, he availed himself of
the absence of his uncle to attack his aunt at night, in her bed,
with several of the shoe-knives used by him in his trade. Her
daughters, coming to her assistance, were also grievously wounded,
but, providentially, none of the victims were mortally touched.
Taken, a day or two afterwards, wandering in the fields, Lafond
alleged, by the aid of an interpreter conversant with his signs, that
he committed the act under the influence of a sudden friorht and
hallucination. However, neither this adroit defence nor his unfor-

' Morel's Annales, ii. 166-170.
380

DEAF AND DUMB. [§ 468.

tunate position could make the jury forget the aggravating circum-
stances of the case. He was found guilty, and condemned to ten
years at hard labor .^

" In the several French cases that have been cited (and we
might have cited other similar cases from Bebian's, Piroux's, and
Morel's Journals), no difficulty appears to have been experienced
in relation to the formalities of a trial ; the questions that were
raised related to the degree of moral accountability of the deaf and
dumb. But the few English and Scotch cases we have are mostly
of a different character. In these cases the defence set up for
deaf-mutes accused of crime has generally turned on legal forms
and technicalities. As this paper has already extended to an unex-
pected length, and as the cases to which we refer can be consulted
at large in standard works, we shall restrict ourselves to brief out-
lines.

§ 468. " In July, 1817,^ Jean Campbell, an uneducated deaf and
dumb woman, the mother of three children by three different fathers,
was charged before the court of justiciary, in Edinburgh, with mur-
dering her child by throwing it over the old bridge at Glasgow.
Mr. Robert Kinniburgh, an eminent teacher of the deaf and dumb,
was called as an expert. He understood, from her signs, tliat she
maintained that, having the child at her back, held up by her cloak,
which she held across her breast with her hands, and being partially
intoxicated, she had loosened her hold to see to the safety of some
money in her bosom, thus allowing the child to fall over the parapet
of the bridge, against which she was resting. She indignantly de-
nied having intended to throw it in the river.

" Mr. Kinniburgh, being asked whether he thought she could
understand the question, whether she was guilty or not guilty of
the crime of which she was accused, answered, that in the way in
which he puts the question, asking her by signs whether she threw
the child over the bridge or not, he thought she could plead not
guilty by signs, and this is the only way in which he could put the
question to her ; but that he had no idea, abstractly speaking, that

' Ibid. i. 56. Deaf and Dumb, which was first open

2 Beck gives this date 1807, which in 1810, was called in the case, and

Is a manifest error, as Mr. Kinniburgh, referred to it in his report for 1S15.

of the Edinburgh Institution for the

381

§ 468.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

she knew what a trial was, but she knew she was brought into court
about her child.

"John Wood, Esq., auditor of excise (who is deaf and partially
dumb), gave in a written statement upon oath, mentioning that he
had visited the prisoner in prison, and was of opinion that she was
altogether incapable of pleading guilty or not guilty ; that she stated
the circumstances by signs, in the same manner she had done to the
court when questioned before the court by Mr. Kinniburgh, and
seemed to be sensible that punishment would follow the commission
of a crime.

" The court were unanimously of opinion that this novel and im-
portant question, of which no precedent appeared in the law of this
country [Scotland], deserves great consideration, and every infor-
mation that the counsel on each side could procure and furnish.

"At a subsequent period the judges delivered their opinion as
follows : —

" Lord Hermand was of opinion that the panel (prisoner) was
not a fit object of trial. She was deaf and dumb from her infancy;
had had no instruction whatever ; was unable to give information to
her counsel, to communicate the names of her exculpatory witnesses,
if she had any, and was unable to plead to the indictment in any
way whatever, except by certain signs which he considered no
pleading whatever.

" The four other judges, however, overruled this opinion, refer-
ring especially to a case (already mentioned in a former part of
this paper) that had occurred in England, in 1773, in which one
Jones, who had stolen five guineas, appearing to be deaf and dumb,
and being found by the jury impanelled on that point to be mute
' from the visitation of God,' was arraigned by the means of a woman
accustomed to converse with him by signs, found guilty and trans-
ported. And it was also observed that it might be for the prisoner's
own good to have a trial ; for, if the jury found that her declara-
tion, that she did not intend to throw her child in the river, was
true, she Avould be acquitted and set free ; whereas, if not found
capable of being tried for a crime, she must be confined for life.
The woman Campbell was accordingly placed at the bar, and, when
the question was put, guilty or not ? ' her counsel, Mr. McNeil,
rose, and stated that he could not allow his client to plead to the
indictment, until it was explained to her that she was at liberty to
382

BLIND : EPILEPTICS. [§ 470.

plead guilty or not. Upon it being found that this could not he
done, the case was dropped, and she was dismissed from the bar
simpliciter. Thus, though it is established that a deaf-mute is doli
capax, no means have yet been discovered of bringing him to trial.'

" Certainly the system of laws of Scotland must be defective,
under Avhich important leading cases are decided, not on broad,
general principles, but on mere formalities and technicalities."^

The manner in which deaf and dumb persons are to be arraigned
has been noticed in another work.^

2. Blind.

§ 469. Blindness^ can only come in question here when it is
congenital or has originated in early infancy, for then
only can it exercise decisive influence on the mental and does not
moral development. In general, however, blindness gponsibiiity
is no reason to suspend the personal responsibility of an
agent ; the defects of the mental and moral nature consequent upon
it are not diseases ; and the bearing which they have upon the
degree of culpability ascribable to an act committed in violation of
law must be referred to the discretion of the court, as guided by
the circumstances of each case.*

3. epileptics. ^

§ 470. Epileptics, from their nervous susceptibility and their
tendency to mental alienation, should be regarded with

peculiar tenderness by those to whom is committed the temieucy of

administration of public iustice. Nor should the idea of a epilepsy to

^ ♦* , insanity.

recent recovery ever exclude one who has been so afflicted
from that protection which would secure at least a patient investi-
gation of the question of moral responsibility. Recent investiga-
tions, conducted by men of eminent sagacity and great opportunities

• Essay by Dr. Peet ; see supra, § 96. ^ See L. Krahmer, Handbuch Gericht.

2 Wh. Cr. L. § 532. Med. Halle, C. A. Schwetschke, 1851,

3 Shurmayer, Gericlit. Med. 563 ; § 122 ; see J. Briand, Med. L4.g. p. 568,
and see L. Krahmer, Handbucli de Paris, 1852 ; M. Orfila, Med. Leg.
Geridit. Med. Halle, G. A. Schwet- tome i. p. 332, Paris, 1848 ; M. Falret,
sclike, 1851, § 122 ; supra, § 95. Cliniques de Medecine Meutale, p. 521,

* Compare Friedreich, 676, where Paris, 1854.
the learning on this subject is col-
lected.

383

§ 472.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

of observation, have led to the conclusion that epilepsy produces
not only general mental prostration, but anomalies in the entire
moral and intellectual system. And although the malady sometimes
coexists with great intelligence, yet the patient retains, not only
during the attack, but for an indefinite period afterwards, but an
imperfect use of his faculties,^

§ 4T1. Einlepsy proj^ei' consists in periodical attacks of insensi-
Nature of ^i^i^J? accompanied with involuntary, convulsive, and
epilepsy. more or less violent motions of the limbs. That persons
committing a violation of law, while in this condition, are entitled
to the full benefit of all the considerations which affect the respon-
sibility of the agent, needs no argument after what has been already
said on the subject of unsoundness of mind. The case, however,
admits of more difficulty when the question is whether, in the in-
terval between the attacks, a state of mind does or does not exist
calculated to destroy or diminish responsibility.^

§ 472. It will be peculiarly necessary, here, to make a division

between the several classes of epileptic diseases. The
between infirmity is well known to appear in very different degrees
ciasseF^^^ of intensity under diff"erent circumstances, and, as it arises

from different physical causes, it may be considered as
exerting different retroactive influences on the mind and the body.
It may aflfect the intellectual faculties in a very subordinate degree,
as the cases of men like Csesar, Napoleon, and Mohammed suffi-
ciently prove. The doctrine therefore results, that, in general
epilepsy, the usual presumption of responsibility applies to acts
committed in the intervals between one attack and another.^

' Boileau de Castlenau : De I'epi- de la Salpltriere, giving photographs

lepsie dans ses rapports avec I'aliena- of cases of hystero-epilepsy, somnam-

tion mentale, consideres au point de bulism, partial epilepsy, etc., Bourne-

VTie medico-judiciare. Annales d'Hy- ville and Renaud, Paris, 1878.
giene publ. et de Medecine Leg., Avril, ^ According to Briand, moral liberty

1842, No. 94. Erhardt-Ueber Zurech- is entirely suspended during the at-

nungsfahigkeit der Epileptischen. tacks. Au epileptic, he argues, who

2 Schlirmayer, Gericht. Med. § 565. commits a homicide during the height

See articles in the Am. Journ. of Ins. of his disease, has had no criminal

for 1872, pp. 341. 723, and vol. 30, p. intention, and therefore cannot incur

1 ; a resume of cases in 13 Bulletin responsibility. See a report of the

Med. Leg. Soc, N. Y., p. 205 ; an case of Isabella Jenisch, in 31 Am.

article in 19 Journ. Ment. Sci. p. 19 ; Journ. of Ins. p. 430.
and the Iconographie photographique

384

EPILEPSY. [§ 475.

§ 473. Obscure eijilepsy, as to the existence of which there can
be no doubt, since the explorations of Morel ,^ may be .
confined in its symptoms to dimly periodic epileptoid of obscure
conditions, to twitching of particular muscles, to occa- ^' ^^^'
sional fixity of the eye, temporary ' stiffening or stoppage of the
organs of speech, and to parenthetical loss of memory, vertigo epi-
leptica. It is maintained still further by this acute observer — and
this with the concurrence of Liman, an author whose conservative
tendencies in this respect we have already noticed — that these
periodic attacks may exhibit themselves exclusively in mental dis-
turbance, in extraordinary excitability, in impulses to homicide and
suicide, in sudden losses of memory, ultimately, though perhaps not
till a long progress, culminating in epilepsy proper. These cases,
however, are rare, and credence should be suspended until the full
development of the disease is reached.

§ 474. In particular cases the responsibility of the agent may be
destroyed, where real symptoms of derangement present
themselves, and where it is possible or probable that the stages of
offence was brought on by such abnormal state of the
faculties. The higher grades of the disease, where it is of long
standing, and where the attacks recur at brief intervals, cast a
doubt upon the psychical requirements of responsibility, even where
nothing is observed which expressly characterizes an aberration of
the mental faculties. The stage which immediately precedes an
attack, the premonitory symptoms of heaviness in the head, dizzi-
ness, loss of consciousness, etc., as well as that which immediately
succeeds an attack, and consists in a manifest disorder of the bodily
and mental functions of the subject, is to be treated as connected
with the immediate attack .^

§ 475. The moral requirements of responsibility are satisfied when
the disease is not of great intensity, and where the inter-
vals show no trace of an alteration of the intellectual notatfect-
functions produced by it, and the incitement to the act g^^nity^"^*
complained of is found not in the obtuseness or ebullition
generally peculiar to such patient, but in a selfish motive, and

' Traits des maladies mentales, Paris, ^ Schiirmayer, Gericht. Med. § 567.
1866, p. 480.

VOL. I.— 25 385

§ 477.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

where the execution of the act betrays forethought, reflection, and
wilfulness.

§ 476. Persons truly epileptic are easily excited to anger and
revenge on the slightest provocation, in the intervals be-
interme- tween their attacks. Although these attacks do not
diate stage, ^j^y^yg attain to such a degree as to deserve the name of
mental derangement, yet it should never be forgotten that there is
always a morbid predisposition to insane ebullitions, and in general
a morbid irritability, which must impair, if not destroy, the moral
responsibility of actions growing out of them. And, even where a
sentence of punishment is pronounced, it must not be overlooked
that its execution may possibly exercise a most deleterious influence
on the health of the individual, by aggravating the disease, and
perhaps in forcing it into real insanity. It is not advisable^ there-
fore, to execute a sentence of punishment upon an epileptic, tvithout
having submitted the case to the examination of a duly authorized
forensic physician}

§ 477. Different views, however, have existed on this point.
Platnei^ denies the responsibility of any epileptic what-

Tests ISild

down by ever. Clarus^ takes a view more in harmony with those
Clams. ^^,g \i2i\Q just advanced, maintaining the following propo-

sitions : —

1. Ail actions and omissions which take place during the paroxysm
of epilepsy are invalid and irresponsible.

2. When the attack of habitual epilepsy is succeeded by, or
alternates with, a state of mania or imbecility, all responsibility is
at an end, even where this latter state is but transitory, because no
human insight or experience can decide with certainty whether the
patient, at that particular instant, was in an entirely sane condition.
On the other hand, civil acts done under such circumstances, if in-
telligent, may be valid.

3. Swooning, heaviness of the head, weakness of memory, fever,
enhanced irritability, etc., which precede or follow the attack, de-

1 Ibid. § 568. For a case of here- * Qujest. Med. For., p. yi.
ditary type of epilepsy, see the report * Beitrage zur Ei-kenntniss mid
of Standerman's case, 32 Am. .Journ. ' Beurtheiluiig zweifelhaften Seelenzus-
Ins. p. 459. See also report of a case taende, Leipsic, 1828, p. 96.
of lunacy in 24 Jouru. Ment. Sci. 90.

386

EPILEPSY. [§ 478.

stroj as well the responsibility as the validity of acts committed
during their continuance.

4. Where it is capable of proof, that the epileptics, in the inter-
vals of their attacks, betray symptoms of malice and obtuseness,
justice demands that their faults should be regarded as effects of the
disease, and that they should be held irresponsible for acts com-
mitted in an ebullition of rage or other passion, while such condition
should operate in mitigation where the crime presupposes forecast
and reflection.

5. Where the signs of an altered state of mind are wantino; both
before and after the attacks, the possibility still remains that these
signs continue undetected because of their minuteness, and that
patients of this description are less able to resist sudden impulses
than persons in good health ; which would suggest a mitigation of
punishment for actions of violent passion, but not for those involv-
ing reflection.

6. All these propositions apply only to idiopathic and habitual
epilepsy ; not to isolated attacks which ensue upon other diseases,
and where no trace remains after their cessation.

7. The diseases connected with epileptic symptoms, particularly
hysterical spasms, accompanied with insensibility, and diseases of
the generic character of St. Vitus's dance, are subject to the rules
above laid down, under the restrictions mentioned in the last head,
because the presumption of a latent propensity to ebullitions of
passion is not, in such cases, vouched by experience.*

§ 478. The difficulties, in cases of pronounced epilepsy, confine
themselves to the question of moral agency during the
intervals between the attacks. While the attack lasts, conditions
the epileptic cannot be viewed as a free agent; and the ^iatestao-es
inquiries which the forensic psychologist has to answer
concern, therefore, the intermediate conditions of the patient. Is
he, in such periods, responsible for obligations entered into, or
offences committed? Of course, in replying to this, we must put
aside those cases where mental disease, as it frequently does in the

' Compare, on the responsibility of The Am. Journal of Insanity, vol. xii.

epileptics, Friedreich, Handbuch der p. 122, gives a valuable translation

gerichtlichen Psychologie, p. 637, and from Delasiaure on Epilepsy. See also

Henke, Abhandlungen aus dem Gebiete an article on Nocturnal Epilepsy, 24

der gerichtlichen Medizin, vol. iv. p. 1. Journ. Ment. Sci. 5G8.

387

§ 480.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

type of dementia, positively exhibits itself in the patient in such
intervals. This condition as such destroys his responsibility. We
have to meet what may be called an intermediate condition — a con-
dition, it may be, of abnormal excitability, of melancholy in its less
settled phases, of intellectual debility more or less marked. Or
we are presented with cases in which the epileptic convulsions are
but rare, slight, and tremulous ; and in which the preponderating
and far more conspicuous symptoms are hypochondria, irritability,
dislike and even animosity to associates and relatives, suspicious-
ness, or sense of injury from others resulting in overt acts of de-
fence or retaliation. Or a still more advanced phase of disease
may exhibit itself in a sort of temporary dreaminess, producing in-
coherent and insensible acts, of which there is subsequently but a
confused recollection.^ In itself this loss of memory is, as has
been seen, an important proof of suspension of responsibility. But
the difficulty of proving such loss of memory is much complicated
by the well-known tendency of epileptics to simulate symptoms, or
to exaggerate those which really exist.

§ 479. Liman^ suggests, as to this point, that the patient should
be examined as to loss of memory on other topics than that which
is the subject of judicial investigation. He also argues that such
intermediate loss of consciousness is not to be assumed when the
litigated transaction required for its consummation complicated in-
tellectual activity, and was elaborated through weeks or months,
and when for collateral points the patient's memory is shown to
have been good. Certainly any less stringent test would work great
injury, both to epileptics, by their business disfranchisement, and
to the community, which would be obliged to thus recognize them
as a privileged class of outlaws emancipated from the restraints of
the penal law.

§ 480. The moral effects of epilepsy have been nowhere more
emphatically recorded than by Dr. Maudsley, in his re-
ley on markable lectures, published in 1870, under the title of

effects of " Body and Mind." He reminds us that a single epilep-
epiiepsy. ^jg £|. ]^^g j^ggj^ known to result in an entire transforma-
tion of character in the patient, causing one who had formerly been

' These states are delineated by * Liman's Casper, 1871, p. 442.
Morel, in liis work already referred to,
and also by Griesinger, Archiv, i. 319.

388

EPILEPSY. [§ 481.

gentle, amiable, and tractable, to appear rude, vicious, and perverse.
Among confirmed epileptics, the periods preceding convulsions are
marked by moodiness, irritability, and sometimes by a sullen fierce-
ness ; while in the intervals the patient may be amiable and tracta-
ble. Sometimes epileptic neurosis may exist for a long period in a
masked and suppressed state, exhibited, not by convulsions, but by
moral or mental perversion.^

§ 481. "We have had opportunities," says Mr. Browne (1871),
in his work on the Medical Jurisprudence of Insanity,^
" of inquiring into the case of George Lawton, who was during epi-
an inmate of the West Riding Lunatic Asylum up to the tack^Law-
24th of March last, when he was committed by the cor- ^^"^'^ ^^^®-
oner to take his trial for the wilful murder of attendant Lomas, at
the assizes then being held at Leeds. Upon Monday, the 27th in-
stant, George Lawton was placed at the dock to take his trial. Mr.
Baron Cleasby was the presiding judge. Upon the evidence of Dr.
Crichton Browne, Medical Director of the West Riding Asylum,
being taken, the jury were asked to return a verdict as to the capa-
bility of the prisoner to plead, and returned a verdict that he was
incapable. The circumstances of this case, as gathered from the
depositions, are these : Lawton was admitted into the asylum in
1863, and suffered from epileptic fits of a severe character. Dur-
ing his residence in the institution he several times attempted to
commit suicide, and, shortly before the murder of the attendant, he
had struck a fellow-patient in the face with a dinner-knife. The
deceased (Lomas) was principal attendant in No. 14 ward, in which
Lawton had been placed. Upon the afternoon of Friday, the 24th
instant, Lomas remained in the ward in charge of Lawton and three
other patients, while the other attendants and their charges went
out for a walk. About three o'clock an attendant in the airing
court heard a cry, and, looking up at the second story, saw Lawton
striking violently at something on the ground, with what appeared
to be a stick. He hastened to the ward, and met a patient on the
step, who said, ' He's killed, and he's killed,' and, upon entering

• As to the effect of paralysis, see paper by Dr. Meredith Clymer, Pro-
Lond. Med. Rec. N. S., No, 43, p. 11 ; ceedings of N. Y. Med. Leg. Soc, 1872,
and a report of the Affair Cliorinsky, PP- 444-467.
19 Journ. Meiit. Sci. 308. See also a '^ Page 229.

389

§ 481.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

the padded-room, he found Lomas lying in a corner, with his skull
fractured in many places. The room was spattered with brains and
blood. Lawton was in the day-room of the ward when he was first
seen. He had a poker in his hand, and he said to the attendant,
as he was about to enter, ' I'll serve you the same if you come in
here.' That is the whole story. The attendant died ten minutes
after the medical assistant was in attendance. The notes of the
post-mortem examination upon the body of Lomas indicate that he
must have been struck repeatedly with the utmost violence. The
condition of the walls and roof of the room in which the murder was
committed points to the same conclusion. During the whole of the
Friday night succeeding the murder, Lawton was restless and mani-
acal. He sprang out of bed Avhenever the attendants, who were in
charge of him, turned their heads. The same excitement and rest-
lessness continued during the forenoon of Saturday. Towards
evening he became calmer, and could talk rationally concerning the
crime he had committed. We had a long conversation with the
patient upon the afternoon of Sunday, and came to the conclusion
that at the time Ave observed him he was to all intents and purposes
a sane man. He certainly was weak minded. But he described
the whole circumstances of the murder with intelligent accuracy.
He maintained that he had no ill-will to the deceased, that he did
not know w^hy he had done it, and that the deceased had always
been very kind to him. When pressed, he said that he had seen
ships and railways on the ceiling of his room before going to sleep ;
but we did not come to the conclusion that these were insane illu-
sions. He confessed to having done many things to get rid of his
fits ; to have held his head under the cold-water tap, to have gone
without butter or beer for months past, to have drunk his urine, and
all with a view to cure himself of epileptic seizures. He described
his condition during the day previous to the murder. He had
known that a fit Avas coming on, and had deposited his money and
tobacco Avith the store-keeper, lest they should be taken from him
by some other patient during the unconsciousness which Avas inci-
dent to the attack. He had felt a stiffening of the muscles of his
limbs, and had, according to his own account, had a severe seizure
in the day-room upon that day.

" His memory Avith regard to the occurrences of the morning of
390

EPILEPSY. [§ 481.

the Friday was not perfect. He sometimes said he remembered
being spoken to while at dinner by the medical superintendent, and
at other times he did not remember it. He said that he had
refrained from taking meat that day, because he thought it would
do his soul good. He said that he himself was a Methodist, but
that he did feel better upon the Saturday morning for the absti-
nence. With regard to the crime itself he knew it was wrong. He
knew that persons who were in their right mind, and who committed
murder, were hanged, but he seemed to regard himself as exempted
from punishment because he had fits, and because he sometimes did
not know what he was doing. He said he knew swearing was
wrong; he though it more heinous than murder. He imagined that
if Lomas was good, he must have gone to heaven, and he said he
hoped he had not done him any harm. He repeatedly asserted that
he liked Lomas, the murdered man, and that he did not know why
he had done what he had done. He spoke of having on a former
occasion tried to jump through a glass door, and having, before he
was admitted to the asylum, laid himself down on the rails that he
might be run over. He seemed to connect these acts, or the con-
ditions existing when they were done, with the murder of his
attendant, or the conditions which were present at the time of the
commission of the crime. From the whole interview — from what
he said, from his manner of saying it, from the muscular tremors
which every now and then were observable in his limbs — we came
to the conclusion that the crime for which he was to be tried was
due to a simple suggestion, arising during the stupid condition
which succeeds an attack of epilepsy, and that the temporary imbe-
cility was succeeded by epileptic mania, which was in its turn fol-
lowed by a gradual restoration to the normal condition of health.
In our presence the patient showed that he was able to read, that
he understood the simple rules of arithmetic, and that he was cog-
nizant of the ordinary doctrines of religion in much the same way
as other people of the same class and with the same amount of
education are. There was considerable mental weakness, but it
seemed to us to be of such a kind as Avould not have incapacitated
the patient in any way, civil or criminal, had he been free from
epilepsy."

391

§ 483.] MENTAL UNSOUNDNESS CONSIDERED PSTCHOLOGICALLT.
II. MENTAL UNSOUNDNESS AS CONNECTED WITH SLEEP.^

§ 482. Under this general head may be grouped somnolentia.
Division of o'' sleep-drunkenness (Schlaftrunkenheit), somnamlu-
this subject Hgyyi^ and nigJitmare, the two last of -which may be con-
sidered together. In the forensic treatment of such maladies, it is
important for the court to consider whether the person subject to
such a disorder was properly aware of it, and of the possible conse-
quences, and able to take the precautions by which those conse-
quences might have been averted.

§ 483. Sleep would seem to be only a peculiar form of cerebral
life, and not a negation of the life of the brain producing
effect of consequent fatigue, exhaustion, or weakness ; it is not to
the^sen^es ^^ Supposed that the state of sleep issues out of the
intellect itself, but the intellect is diverted by the pecu-
liar change of the action of the brain into that state of existence
which we call sleep. But the intellect does not sleep ; nor can it
ever be said that its activity diminishes during sleep ; we merely
cease to perceive its activity. On the other hand, we cannot doubt
that the activity which involves sleep may also be morbid, abnormal,
and connected with cramps or convulsive symptoms. Sleep is in-
terrupted by whatever terminates the peculiar condition of the
brain upon which sleep depends ; by the natural expiration of this
peculiar state of the brain ; by vivid and sudden impressions on the
senses, and by disagreeable sensations. Now, in a certain morbid
condition of the brain this awaking is not complete, and does not
restore the Avaking state with a full and correct perception of sur-
rounding things ; but an intermediate state between sleeping and
waking is produced, which resembles intoxication, and is called the
intoxicatioyi of sleep (^ScJilaftrunkenJieif). This state admits of
action which is directed by the phantoms of the dream ; talking in
sleep being very nearly allied to waking, and dreams themselves
being midway between sleep and waking, for in the depths of sleep
we no longer become conscious of dreams.

Nightmare and somnabulism, on the other hand, are, as will be
seen, distinct abnormal conditions of continuous sleep, and, under

1 See Med. Leg. M. Orfila, tome i. p. 255, Paris, 1854 ; Lecjons Cliniques de

456, Paris, 1848; M6d. LSg. M.Briand, M. Falret, Leqon 4tli, p. 117, Paris,

p. 563, Paris, 1852; Renaudin sur 1854.
I'Alienation Mentale, chap. 6th, p.

392

SLEEP-DRUNKENNESS. [§ 485.

certain external circumstances, may lead to acts of violence. In
examining such cases it is important to inquire into the existence of
abnormal physical conditions, such as plethora, predisposition to
congestions in the head or breast, actual congestions, diseases of
the heart, abnormal plethora, suppressed haemorrhoids, eruptions
of the skin, or other habitual secretions which have been driven in,
nervous affections of various kinds, impure air in the bedroom, a
hearty meal, or indulgence in ardent spirits immediately or shortly
before going to sleep. Somnamhulism is not a mere intensified
dream, but hiforo medico must be treated as a morbid independent
state, and, in a legal point of view, every act shown to have been
committed under its influence is disconnected with voluntary moral
agency.^

1. Somnolentia, or sleep-drunkenness.

§ 484. Sleep-drunkenness may be defined to be the lapping over
of a profound sleep on the domains of apparent wakeful-
ness producing an involuntary intoxication on the part
of the patient, which destroys at the time his moral agency. Under
the name of somnolentia, which was given to it by Ploucquet and
subsequent French writers, and of Schlaftrunkenlieit, which it was
styled by the German school, it became the subject of general
discussion at the beginning of the present century. The first case
in which the symptoms were unmistakably reported was that of
Buchner.2 A sentry, who had fallen asleep during his watch,
being suddenly aroused by the officer in command, fell upon the
latter with his drawn sword, with an attack so furious that the most
serious consequences were only averted by the interposition of
bystanders. The result of the medical examination was, that the
act was involuntary and irresponsible, being the result of a violent
confusion of mind consequent upon the sudden involuntary waking
from a profound sleep.

§ 485. Shortly afterwards occurred the case of a day -laborer,
who killed his wife with a wagon-tire, the blow being Case of
struck immediately upon his starting up from a deep b/iity proT
sleep, from which he was forcibly awakened. In this gj^^p'^jrun-
case there was evidence aliunde that the defendant was keuness.

I Scliiirmayer, Gerioht. Med. § 561. ^ See Henke's Zeitschr. 10 B. p. 39.

393

§ 485.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLT.

seized Avhen waking with a delusion that a " woman in white"
had snatched his wife from his side and was carrying her away,
and that his agony of mind was so great that his whole body was
Avet with perspiration. There Avas no doubt of the defendant's
irresponsibility.^ In this country, the case properly would fall
under the head of excusable homicide by misadventure.' In prac*
tical result, these cases vary little from an early English case,
already noticed, in which, though there was no psychological . de-
fence made, there was proof of the same delusions as to danger
heightened by the same disturbances of mind as are produced by a
sudden waking up from a deep sleep. The defendant, being in bed
and asleep in his house, his maid-servant, who had hired the de-
ceased to help her do her work, as she was going to let her out
about midnight, thought she heard thieves breaking open the door,
upon which she ran up stairs to the defendant, her master, and
informed him thereof. Suddenly aroused, he sprang from his bed,
and, running down stairs with his sword drawn, the deceased hid
herself in the buttery, lest she should be discovered. The defend-
ant's wife, observing some person there, and not knowing her, but
conceiving she was a thief, cried out, " Here are they who would
undo us;" and the defendant, in the paroxysm of the moment,
dashing into the buttery, thrust his sword at the deceased and killed
her.^ The defendant was acquitted under the express instructions
of the court, and the case has stood the test of the common law
courts for over two hundred years, during which it has never been
questioned. It is important to observe, however, that, if it differs
from the two cases already noticed under this head, in the increased
naturalness of the delusion under which the defendant was laboring,
it differs from them in the comparatively longer interval in wdiich
his perceptive faculties had the opportunity to arrange themselves.
Let it be supposed that it was the wife, and not the Jiushand, who
had slain the deceased. Under the circumstances, the result would
hardly have been diiFerent, and yet in this case the distinction be-
tween her responsibility and that of the laborer who killed his wife
on the waking spasm is simply in the degree of probability of delu-
sions which in both cases were unfounded. If in the one case this
improbability was more glaring, let it be recollected that there was

» Wildberg's Jahrbuch, 2 Bd. p. 32. s Levet's case, Cro. Car. 538 ; 1 Hale,
2 See Wharton on Horn. 210. 42, 474.

394

SLEEP-DRUNKENNESS. [§ 486.

much less time afforded to the patient to compose himself to a rea-
soning state of mind.

§ 486. Much more recently, a case occurred which led to the
whole question being re-examined and discussed. A young man,
named A. F., about twenty years of age, was living with his
parents in great apparent harmony, his father and himself being
alike distinguished for their extravagant devotion to hunting. In
consequence of the danger of nocturnal attacks, they Avere in the
habit of taking their arms with them into their chamber. On the
afternoon of September 1st, 1839, the father and son having just
returned from hunting, their danger became the subject of particu-
lar conversation. The next day the hunting was repeated, and on
their return, after taking supper with the usual appearance of har-
mony, the family retired at about ten o'clock, the father and mother
occupying one apartment, and the son the next, both father and son
taking their loaded arms with them to bed. At one o'clock, the
father got up to go into the entry, and on his return jarred against
the door opening into the entry, upon which the son instantly sprang
up, and. discharging his gun at the father, gave the latter a fatal
wound in the breast, crying at the same time, " Dog, what do you
want here ?" The father fell immediately to the ground, and the
son, then first recognizing him, sank on the floor crying, "0 Jesus!
it is my father." The evidence was, that the whole family were
subject to great restlessness in their sleep, and that the defendant
in particular was affected by a tendency to be easily distressed by
dreams, which lasted for about five minutes on waking, before their
efi'ect was entirely dissipated. His own version of the affair was,
" I must have fired the gun in my sleep ; it was moonshine, and we
were accustomed to talk and walk in our sleep. I recollect hearing
something jar ; I jumped up, seized my gun, and shot where I heard
the noise. I recollect seeing nothing, nor am I conscious of having
spoken. The night was so bright that everything could have been
seen. I must have been under the delusion that thieves had broken in."
The concurrent opinions of the medical experts examined on the trial
were, that the act was committed in a state of somnolentia or sleep-
drunkenness, and that it was not that of a free and responsible agent. ^

1 Henke's Zeitschrift, 1853, vol. Ixv. Gesetzgebuug, etc., viii. B., Berlin,
pp. 190-1 ; and see also a case of much 1798 ; and Miiller's gericlitliclie Arzuei-
greater doubt in Klein's Annalen der wissenscliaft, vol. i. 302.

395

§ 488.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

§ 487. It is important to distinguish somnolentia, or sleep-
Somnoien drunkenness, which is a state that to a greater or less
tia distinct extent is incidental to every individual, from somnambu-

from som- , • , • i i " t • • • t , ,

nambu- lism, which IS an abnormal condition incident to a very
^^^' few. The experience of every-day life demonstrates

how much the former enters into almost every relation. Children,
particularly, sometimes struggle convulsively in the effort to wake
up, which often is continued for several minutes. The very ex-
clamations, "Wake up" — "Come to" — which are so common in
addressing persons in the waking condition, are scarcely necessary
to bring to the mind many recollections of cases where the waking
struggle has been peculiarly protracted. Of course there are con-
stitutions where this struggle is peculiarly distressing, just as there
are constitutions in which the tendency to sleeplessness is equally
marked. Dr. Kru^elstein tells us of a merchant of distinction who
had an irrepressible tendency to sleep in the afternoons, and yet
who, whenever he was wakened up, was for a few moments over-
come with a paroxysm, over which he had no control. Dr^ Meis-
ter himself^ relates the following phenomenon: "I was obliged to
take a journey of eight miles on a very hot summer's day, my seat
being with my back to the horses, and the sun directly in my face.
On reaching the place of destination, and being very weary and
with a slight headache, I laid myself down, with my clothes on, on
a couch. I fell at once asleep, my head having slipped under the
back of the settee. My sleep was deep, and, as far as I can recol-
lect, without dreams. When it became dark, the lady of the house
came with a light into the room. I suddenly awoke, but, for the
first time in my life, without collecting myself. I was seized with
a sudden agony of mind, and, picturing the object which was enter-
ing the room as a spectre, I sprang up and seized a stool, which, in
my terror, I would have thrown at the supposed shade. Fortu-
nately, I was recalled to consciousness by the firmness and tact of
the lady herself, who, with the greatest presence of mind, succeeded
in composing my attention until I was entirely awakened."

§ 488. The existence of this intermediate state between sleeping
and waking, and of the " drunkenness" by which it is sometimes

I Henke's Zeitsclirift, vol. Ixv. 456. See Krafft-Ebing, Transitorische Irre-
sein, 1868.

396

SLEEP-DRUNKENNESS. [§ 489.

accompanied, is recognized by even the older elementary Necessary
writers. Thus Wendler^ says : " Discern! autem possit termine re-
expergefactio naturalis a prseternaturali. Etenim somno ^Po°sibii-
sensim reficitur sensibilitas animi, quae, cum in eum eve-
hitur gradum, ut solemnibus pistoque non fortioribus excitamentis
ad cogitandum excitetur, naturalis expergefactio est ; contra ubi
facultate ilia parum aucta, insolita incitamentorum vis animum
cogit ad statum vigilise, prgeternaturalem banc dicimus expergefac-
tionem."

The following tests it is important to apply in order to determine
the question of responsibility : —

a. A general tendency to deep and heavy sleep must be shown,
out of which the patient could only be awakened by violent and
convulsive effort.

b. Before falling asleep, circumstances must be shown producing
disquiet which sleep itself does not entirely compose.

c. The act under examination must have occurred at the time
when the defendant was usually accustomed to have been asleep.

d. The cause of the sudden awakening must be shown. It is
true that this cannot always happen, as sometimes the start may
have come from a violent dream.

e. The act must bear throughout the character of unconscious-
ness.

/. The actor himself, when he awakes, is generally amazed at
his own deed, and it seems to him almost incredible. Generally
speaking, he does not seek to evade responsibility, though there are
some unfortunate cases in which the wretchedness of the sudden dis-
covery overcomes the party himself, who seeks to shelter himself
from the consequences of a crime of which he was technically,
though not morally, guilty.

§ 489. A very intelligent observer. Dr. Krugelstein, has given
us a critical and extended observation of those cases in
which crimes have been committed in the supposed som- tionrof Dr.
nolential state, in which he draws the inferences that KrUgei-

... stein.

this species of mania occurs chiefly, if not entirely, with

persons who are sound sleepers, and are suddenly startled, by some

' Dissertatio de Somno. Lipsise, lar case in liis Trans. Irresein, 1868,
1805, p. 23. Krafft-Ebing gives a simi- p. S.

397

§ 491.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

violent exterior cause, from a sleep which, from indigestion or other
causes, has been already disturbed and excited by dreams of pecu-
liar vivacity. Such cases are universally marked with a want of
consciousness in the actor, and followed when he awakes by entire
astonishment and then violent remorse.^

§ 490. Dr. Tayloi^ gives us the following case on the same point :
A peddler, who was in the habit of walking about the
by Dr. Tay- Country armed with a sword-stick, was awakened one
°^'' evening, while lying asleep on the high-road, by a man

who was accidentally passing seizing him and shaking him by the
shoulders. The peddler suddenly awoke, drew his sword and
stabbed the man, who afterwards died. He was tried for man-
slaughter. His irresponsibility was strongly urged by his counsel,
on the ground that he could not have been conscious of an act per-
petrated in a half-waking state--. This was strengthened by the opinion
of the medical witness. The prisoner was, however, found guilty.
Under such circumstances it was not unlikely that an idea had arisen
in the prisoner's mind that he had been attacked by robbers, and
therefore stabbed the man in self-defence.^

Dr. Hartshorne, in a note, tells us that a somewhat similar case
occurred in Philadelphia, a few years back, in which a man was
shot with a pistol by an acquaintance whom he had suddenly aroused
from sleep, late at night, in an open market-house. The plea was,
that the deceased was mistaken for a robber when the pistol was
fired; but the jury found averdict of manslaughter.

§ 491. Two persons, in a case cited by Mr. Best, who had been
hunting during the day, slept together at night. One of
tia as a de- them was renewing the chase in a dream, and imagining
be unduly himself present at the death of the stag, cried out " I'll
strained. kiH him ! I'll kill him!" The other, awakened by the
noise, got out of bed, and by the light of the moon beheld the
sleeper give several deadly stabs with a knife, in that part of the
bed which his companion had just quitted. Suppose a blow
given in this way had proved fatal, and the two men had been shown
to have quarrelled previously to retiring to rest ! But a defence of

» Kriigelstein, Ueber die in Zustande " Med. Jur. 599, 600.
derSclilaftrunkenheitveriibtenGe-walt- ^ R. v. Milligan. Lincoln Autumn

thatigkeiten in gerichtsarztlicher Be- Assizes, 1836.
ziehung.

398

SOMNAMBULISM. [§492.

this kind, as is well remarked by Dr. Taylor, may be unduly
strained. Thus, where there is an enmity, with a motive for the
act of homicide, the murderer while sleeping in the same room may
select the night for an assault, and perpetrate the act in darkness
in order the more effectually to screen himself. In the case of Reg.
V. Jackson,^ it was urged in defence that the prisoner, who slept in
the same room with the prosecutor, had stabbed him in the throat,
owing to some sudden impulse during sleep ; and the case of Milli-
gan, above given, was quoted by the learned counsel in support of
the view that the prisoner was irresponsible for the act. It was
proved, however, that the prisoner had shown malicious feelings
against the prosecutor, and that she Avished him dead. The knife
with which the wound had been inflicted bore the appearance of
having been recently sharpened, and the prisoner must have reached
over her daughter (the prosecutor's wife), who was sleeping in the
same bed with him, in order to produce the wound. These facts
are quite adverse to the supposition of the crime having been per-
petrated under an impulse from sleep, and the prisoner was con-
victed. In another case, Reg. v. French,^ it was proved that the
prisoner while sleeping in the same room had killed the deceased,
who was a stranger to him, under some delusion. There was, how-
ever, clear evidence that the prisoner was insane, and on this ground
he was acquitted under the direction of the judge.^ In a subse-
quent case in Ireland, where the same defence could with much
justice have been presented, the defendant, though under circum-
stances throwing much doubt on the verdict, was convicted.*

2. /Somnambulism.

§ 492. Somnambulism, according to the usual acceptation, in-

volves (1^ continuousness, not being merely a transition ^

^ , . , , . ,^. Conditions

momentary state between sleeping and waking ; (2) a otsomnam-
sort of supersensual or ecstatic consciousness, which
enables the patient to find his way with his eyes closed, or with his
vision so abnormally excited as to fail to present to him anything
more than a certain path, or certain objects on Avhich his attention

' Liverpool Autumn Ass. 1847. ^ Taylor's Med. Jurisprudence, pp.

2 Dorset Autumn Ass. 1846. 599, 600.

* See 22 Am. Jour, of Ins. 25.

399

^ 493.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOaiCALLY.

is absorbed. Perhaps the latter condition may be more correctly
defined as that of a state of dreamy abstraction, in which the ob-
jects of a dream are exclusively observed and pursued. In a
limited degree this is frequently observable in children, who at
night, especially when the room is lighted by the moon, will rise
from their bed and wander into their mother's room, apparently in
a dreamy state, incapable of giving clear answers, and without
subsequent waking recollection of having made such a move. But
as to adults, it is to be observed that the condition is easily simu-
lated, and that as the cases of adult somnambulism reported in re-
cent years are very rare, and are sustained by meagre proof, we
may indulge in a reasonable doubt whether most of the earlier
cases are not to be solved by the hypothesis of simulation, or of
mythical exaggeration. Certainly, when an act is intelligently
done by an adult, and for an intelligible purpose, the defence of
somnambulism is one of the wildest that can be offered.

§ 493. " Dreaming," says Dr. Rush, "is a transient paroxysm

of delirium. Somnambulism is nothing but a higher

buiism™" grade of the same disease. It is a transient paroxysm

species of Qf madness. Like madness, it is accompanied with mus-

deelinum. . . ^

cular action, with incoherent or coherent conduct, and
with that complete oblivion of both which takes place in the worst
grade of madness. Coherence of conduct discovers itself in per-
sons who are affected with it undertaking or resuming certain
habitual exercises or employments. Thus we read of the scholar
resuming his studies, the poet his pen, and the artisan his labors,
while under its influence, with their usual industry, taste, and cor-
rectness. It extended still further in the late Dr. Blacklock,
of Edinburgh, who rose from his bed, to which he had retired at
an early hour, came into the room where his family were assembled,
conversed with them, and afterwards entertained them with a
pleasant song, without any of them suspecting he was asleep, and
without his retaining after he awoke the least recollection of what
he had done."^

• Rush on the Mind, pp. 302, 303. Handbuch der Gericht. Med. Halle, C.

See E. L. Heim, vermischte med. A. Schwetschke, 1851, § 115. Siebold,

Schriften, herausg. von A. Paetsch. Lehrbuch dei- Gericht. Med. Berlin,

Leipsic, 1836, § 336. L. Krahmer, 1847, § 196.
400

SOMNAMBULISM. [§ 495.

§ 494. A German psychologist^ gives us, in great minuteness,
a narrative of a young woman, a somnambulist, who,
when twenty-three years old, having been previously in of somnam-
good health, and regular in her menstruation, was seized ducin^ un-
with epilepsy in consequence of a fright produced by an nesrand^'
attack of robbers. She soon became the victim of som- irresponsi-
nambulism, which manifested itself in all its ordinary
incidents, such as deep sleep, want of memory and firmness in her
movements when under its influence. While in the somnambulic
condition, she had the habit of concealing articles of various kinds,
the result of which Avas that she was charged with theft. Under
the advice of Dr. Dornbliith she was finally acquitted, and under
his care was gradually restored to health.

§ 495. Dr. Upham gives us the following American illustration:
"A farmer in one of the counties of Massachusetts, according to
the account of the matter which was published at the time, had
employed himself for some weeks in the Avinter thrashing his grain.
One night, as he Avas about closing his labors, he ascended a ladder
to the top of the great beams in the barn, Avhere the rye which he
was thrashing Avas deposited, to ascertain what number of bundles
remained unthrashed, which he determined to finish the next day.
The ensuing night, about tAvo o'clock, he was heard by one of the
family to arise and go out. He repaired to his barn, being sound
asleep and unconscious of what he was doing, set open his barn
doors, ascended the great beams of the barn where his rye was
deposited, thrcAV doAvn a flooring, and commenced thrashing it.
When he had completed it, he raked off" the straAV and shoved the
rye to one side of the floor, and again ascended the ladder with
the straAV, and deposited it on some rails that lay across the great
beams. He then threw doAvn another flooring of rye, Avhich he
thrashed and finished as before. Thus he continued his labors
until he thrashed five floorings, and on returning from throwing
doAvn the sixth and last, and in passing over part of the haymow,
he fell off", where the hay had been cut doAvn about six feet, to the
lower part of it, which aAvoke him. He at first imagined himself
in his neighbor's barn, but, after groping about in the dark for a
long time, ascertained that he Avas in his OAvn, and at length found

' Dornbliltli, Geschichte einer Nachtwaiidlerin, Ilcnke's Zeitsclirift, xxxii. 2.

VOL. I.— 26 401

§ 496.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

the ladder, on which he descended to the floor, closed his barn-
doors, which he found open, and returned to his house. On coming
to the light he found himself in such a profuse perspiration that his
clothes were literally wet through. The next morning, on going to
his barn, he found that he had thrashed during the night five
bushels of rye, had raked the straw off in good order and deposited
it on the great beams, and carefully shoved the grain to one side
of the floor, without the least consciousness of what he was doing,
until he fell from the hay."^

"A man in this state," says Falret, " has no longer the same
relations with the exterior world. He enters into movements which
seem the result of the will, since he avoids blows and falls with the
greatest nicety ; and yet he does not seem to see, or at least his
sight appears very confused. The mind is evidently in action,
since somnambulists often write things which they were unable to
do when awake, maintain conversation, and perform actions imply-
ing regular ideas. And yet after the attack they preserve no
remembrance of their thoughts, feelings, or actions, as if conscious-
ness had been entirely obliterated Avhilst it lasted."^

§ 496. The views of Abercrombie have been so long appealed

to on this point that we cannot refrain from givins; them
Dr. Aber- . . o o

crombie's here in full: "Somnambulism," he says, "appears to

suWect— differ from dreaming chiefly in the degree in which the

somnam- bodilv functions are affected. The mind is fixed, in the

bulist not "^

responsible same manner as in dreaming, upon its own impressions

for his acts. . ^ ^ l • l • l ^

as possessmg a real and present existence m external
things; but the bodily organs are more under the control of the
will, so that the individual acts under the influence of erroneous
conceptions, and holds conversation in regard to theoi. He is also,
to a certain degree, susceptible of impressions from without, through
his organs of sense ; not, however, so as to correct his erroneous
impressions, but rather to be mixed up Avith them. A variety of
remarkable phenomena arise out of these peculiarities, which will be
illustrated by a slight outline of this singular affection. The first de-
gree of somnambulism generally shows itself by a propensity to talk

1 Upliam on Mental Action, pp. 182, 2 Lemons Cliniques de I'Ali^nation
183. See also article by M. Alfred de Mentale, par M. Falret, Legou 4, p. 121.
Maury, 18 Am. Journ. of Ins. 236. Paris, 1854.

402

SOMNAMBULISM. [§ 496.

during sleep — the person giving a full and connected account of what
passes before him in dreams, and often revealing his own secrets or
those of his friends. Walking during sleep is the next degree, and that
from which the affection derives its name. The phenomena connected
with this form are familiar to every one. The individual gets out
of bed ; dresses himself ; if not prevented, goes out of doors ; walks
frequently over dangerous places in safety ; sometimes escapes by a
window and gets to the roof of a house ; after a considerable inter-
val, returns and goes to bed ; and all that has passed conveys to
his mind merely the impression of a dream. A young nobleman
mentioned by Hortensius, living in the citadel of Breslau, was ob-
served by his brother, who occupied the same room, to rise in his
sleep, wrap himself in a cloak, and escape by a window to the
roof of the building. He there tore in pieces a magpie's nest,
wrapped the young birds in his cloak, returned to his apartment,
and went to bed. In the morning he mentioned the circumstance
as having occurred in a dream, and could not be persuaded that
there had been anything more than a dream, till he was shown the
magpies in his cloak. Dr. Prichard mentions a man who rose in
his sleep, dressed himself, saddled his horse, and rode to the place
of a market which he was in the habit of attending once every week ;
and Martinet mentions a man who was accustomed to rise in his
sleep and pursue his business as a saddler. There are many in-
stances on record of persons composing, during the state of somnam-
bulism : as of boys rising in their sleep and finishing their tasks
which they had left incomplete. A gentleman at one of the English
universities had been very intent during the day in composition of
some verses which he had not been able to complete : during the
following night he arose in his sleep and finished his composition,
then expressed great exultation, and returned to bed. In these
common cases, the affection occurs during ordinary sleep ; but a
condition very analogous is met with, coming on in the daytime, in
paroxysms during which the person is affected in the same manner
as in the state of somnambulism, particularly with an insensibility
to external impressions : this presents some singular phenomena.
These attacks in some cases come on without any warning ; in
others, they are preceded by a noise or sense of confusion in the
head. The individuals then become more or less abstracted, and
are either unconscious of any external impressions, or very confused

403

§ 496.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

in their notions of external things. They are frequently able to
talk in an intelligible and consistent manner, but always in reference
to the impression -which is present in their own minds. They in
some cases repeat long pieces of poetry, often more correctly than
they can do in their waking state, and not unfrequently things
which they could not repeat in their state of health, or of wdiich
they were supposed to be entirely ignorant. In other cases they
hold convei'sation with imaginary beings, or relate circumstances or
conversations which occurred at remote periods, and which they
were supposed to have forgotten. Some have been known to sing
in a style far superior to anything they could do in their waking
state ; and there are some well-authenticated instances of persons
in this condition expressing themselves correctly in languages with
which they were imperfectly acquainted. I had lately under my
care a young lady who is liable to an afiection of this kind, Avhich
comes on repeatedly during the day, and continues from ten minutes
to an hour at a time. Without any warning, her body became
motionless, her eyes open, fixed, and entirely insensible, and she
became totally unconscious of any external impression. She has
been frequently seized while playing on the piano, and has con-
tinued to play, over and over, part of a tune with perfect correct-
ness, but without advancing beyond a certain point. On one occa-
sion she was seized after she had begun to play from the book a
piece of music which was new to her. During the paroxysm she
continued the part Avhich she had played, and repeated it five or
six times with perfect correctness ; but on coming out of the attack
she could not play it without the book. During the paroxysms the
individuals are, in some instances, totally insensible to anything
that is said to them ; but in others they are capable of holding con-
versation with another person with a tolerable degree of consistency,
though they are influenced to a certain degree by these mental
visions, and are very confused in their notions of external things.
In many cases, again, they are capable of going on with the manual
occupations in which they had been engaged before the attack.
This occurred remarkably in a watchmaker's apprentice mentioned
by Martinet. The paroxysms on him appeared once in fourteen days,
and commenced with a feeling of heat extending from the epigastrium
to the head. This was followed by confusion of thought, and this
by complete insensibility ; his eyes were open, but fixed and vacant,
404

SOMNAMBULISM. [§ 496.

and he was totally insensible to anything that was said to him, or
to any external impression. But he continued his usual employ-
ment, and was always much astonished, on his recovery, to find the
change that had taken place in his work since the commencement
of his paroxysm. This case afterwards passed into epilepsy. Some
remarkable phenomena are presented by this singular affection,
especially in regard to exercises of memory and the manner in
which old associations are recalled into the mind : also, in the dis-
tinct manner in which the individuals sometimes express themselves
on subjects with which they had formerly shown but an imperfect
acquaintance. In some of the French cases of epidemic ' extase,'
this has been magnified into speaking unknown languages, predict-
ing future events, and describing occurrences of which the persons
could not have possessed any knowledge. These stories sefem, in
some cases, to resolve themselves merely into embellishment of what
really occurred, but in others there can be no doubt of connivance
and imposture. Some facts, however, appear to be authentic, and
are suificiently remarkable. Two females, mentioned by Bertrand,
expressed themselves during the paroxysm very distinctly in Latin.
They afterward admitted that they had some acquaintance with the
language, though it was imperfect. An ignorant servant-girl, men-
tioned by Dr. Dewar, during paroxysms of this kind showed an
astonishing knowledge of geography and astronomy ; and expressed
herself in her own language in a manner which, though often ludi-
crous, showed an understanding of the subject. The alternations
of the seasons, for example, she explained by saying that the world
was set a-gee. It was afterwards discovered that her notions on
this subject had been derived from hearing a tutor giving instruc-
tions to the young people of the family. A woman who was some
time ago in the Infirmary of Edinburgh on account of an affection
of this kind, during her paroxysms mimicked the manner of the
physicians, and repeated correctly some of their prescriptions in
the Latin language. Another very singular phenomenon presented
by some instances of this affection is what has been called, rather
incorrectly, a state of double consciousness. It consists in the
individual recollecting, during a paroxysm, circumstances which
occurred in a former attack, though there was no remembrance of
them during the interval. This, as well as various other phenomena
connected with the affection, is strikingly illustrated in a case de-

405

§ 496.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

scribed by Dr. Dyce, of Aberdeen, in the Edinburgh Philosophic
Transactions. The patient was a servant-girl, and the affection
began with fits of somnolency, which came upon her suddenly during
the day, and from which she could, at first, be aroused by shaking,
or by being taken out in the open air. She soon began to talk a
great deal during the attacks, regarding things which seemed to be
passing before her, as a dream ; and she w^as not, at this time,
sensible of anything that was said to her. On one occasion she
repeated distinctly the baptismal service of the Church of England,
and concluded with an extemporai-y prayer. In her subsequent
paroxysm she began to understand what was said to her, and to
answer with a considerable degree of consistency, though the
answers were generally, to a certain degree, influenced by her
hallucinations. She also became capable of following her usual
employments during the paroxysm ; and at one time she laid out
the table correctly for breakfast, and repeatedly dressed herself
and the children of the family, her eyes remaining shut the whole
time. The remarkable circumstance was now discovered, that dur-
ing the paroxysm she had a distinct recollection of what took place
in her former paroxysms, though she had no remembrance of it
during the intervals. At one time she was taken to church while
under the attack, and there behaved with propriety, evidently
attending to the preacher ; and she was at one time so much affected
as to shed tears. In the interval she had no recollection of having
been at church ; but in the next paroxysm she gave a most distinct
account of the sermon, and mentioned particularly the part of it by
which she had been so affected. This woman described the parox-
ysm as coming on with a cloudiness before her eyes, and a noise in
the head. During the attack her eyelids were generally half-shut;
her eyes sometimes resembled those of a person afiiicted with amau-
rosis— that is, with a dilated and insensible state of the pupil, but
sometimes they Avere quite natural. She had a dull vacant look ;
but, when excited, knew what was said to her, though she often
mistook the person who was speaking ; and it was observed that
she seemed to discern objects best which were faintly illuminated.
The paroxysms generally continued about an hour, but she could often
be roused out of them ; she then yawned and stretched herself, like
a person awaking out of sleep, and instantly knew those about her.
At one time, during the attack, she read distinctly a portion of a
406

SOMNAMBULISM. [§ 498.

book which was presented to her ; and she often sung, both sacred
and common pieces, incomparably better, Dr. Dyce affirms, than
she could do in a waking state. The affection continued to recur
for about six months, and ceased when a particular change took
place in her constitution."

§ 497. " We have another very remarkable modification of this
affection, referred to by Mr. Combe, as described by Major Elliot,
Professor of Mathematics in the United States Military Academy
at West Point. The patient was a young lady of cultivated mind,
and the affection began with an attack of somnolency, which Avas
protracted several hours beyond the usual time. When she came
out of it, she was found to have lost every kind of acquired knowl-
edge. She immediately began to apply herself to the first elements
of education, and was making considerable progress, when, after
several months, she was seized with a second fit of somnolency.
She was now at once restored to all the knowledge which she had
possessed before the first attack, but without the least recollection
of anything that had taken place during the interval. After an-
other interval she had a third attack of somnolency, which left her
in the same state as after the first. In this manner she suffered
these alternate conditions for a period of four years, with the very
remarkable circumstance that during one state she retained all her
original knowledge, but during the other, that only which she had
acquired since the first attack. During the healthy interval, for
example, she was remarkable for the beauty of her penmanship;
but during the paroxysm, wrote a poor, awkward hand. Persons
introduced to her during the paroxysm, she recognized only in a
subsequent paroxysm, but not in the interval ; and persons whom
she had seen for the first time during the healthy interval, she did
not recognize under the attack."^ ,

§ 498. Carus tells us in his lectures (Leipsic, 1831), of a clergy-
man who was a somnambulist, who would get up in his

. TO Instances

sleep, take paper, and write out a sermon. If a passage of som-
did not please him, he would strike it out, and correct it
with great accuracy. We are told by Steltzer of a somnambulist
who clambered out of a garret window, descended into the next

1 Abercrombie on the Intellectual Powers, p. 238, etc.

407

§ 500.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

house, and killed a young girl who was asleep there.^ As a set-off
to these, we have the case of a preassumed somnambulism for the
purpose of cloaking an intended crime .^

§ 499. A curious example of somnambulism, observed in a monk,
is mentioned by M. de Savarin, as related to him by the

Case nearly . „ , i • i

causing an prior 01 the convent where it happened, who was an eye-

homicMe!^"^ witness of the occurrence. " Very late one evening the
patient somnambulist entered the chamber of the prior,
his eyes were open but fixed, the light of two lamps made no im-
pression upon him, his features were contracted, and he carried in
his hand a large knife. Going straight to the bed, he had first the
appearance of examining if the prior was there. He then struck
three blows, which pierced the coverings, and even a mat which
served the purpose of a mattress. In returning, his countenance
was unbent, and was marked by an air of satisfaction. The next
day the prior asked the somnambulist what he had dreamed of the
preceding night, and the latter answered that he had dreamed that
his mother had been killed by the prior, and that her ghost had
appeared to him demanding vengeance, that at this sight he was so
transported by rage, that he had immediately run to stab the
assassin of his mother ; that, a little while after, he awoke bathed
in perspiration, and very content to find he had only dreamed."
M. de Savarin adds, that, if under these circumstances the prior
had been killed, the monk somnambulist could not have been pun-
ished, because it would have been upon his part an involuntary
homicide.^

§ 600. " You have all heard," said Sir William Hamilton, in one

of his lectures on metaphysics, " of the phenomenon of
Opinion of . t , • , , i

SirW. somnambulism. In this remarkable state the various

that con- mental faculties are usually in a higher degree of power
fr^resenr ^^^"^ ^^ ^^^ natural. The patient has recollections of
insomnam- what he has wholly forgotten. He speaks languages of
which, when awake, he remembers not a word. If he
uses a vulgar dialect when out of this state, in it he employs only
a correct and elegant phraseology. The imagination, the sense of

1 Steltzer, iiber den Willen, Leips., ' Physiologie du gout, tome ii. p. 3.
1817-18, p. 273. Paris, 1834.

2 Faiiner, System der Ger. Arznei.
1 Bd. p. 43.

408

SOMNAMBULISM. [§ 500.

propriety, and the faculty of reasoning, are all in general exalted.
The bodily powers are in high activity, and under the complete
control of the will ; and, it is well known, persons in this state have
frequently performed feats, of which, when out of it, they would
not even have imagined the possibility. And, what is even more
remarkable, the difference of the faculties in the two states seems
not confined merely to a difference in degree. For it happens, for
example, that a person who has no ear for music when awake shall,
in his somnambulic crisis, sing with the utmost correctness and with
full enjoyment of his performance. Under this affection persons
sometimes lie half their lifetime, alternating between the normal
and abnormal states, and performing the ordinary functions of life
indifferently in both, with this distinction, that if the patient be dull
and doltish when he is said to be awake, he is comparatively alert
and intelligent when nominally asleep. I am in possession of three
works, written during the crisis by three different somnambulists.
Now it is evident that consciousness, and an exalted consciousness,
must be allowed in somnambulism. This cannot possibly be denied ;
but mark what follows. It is the peculiarity of somnambulism — it
is the differential quality by which that state is contradistinguished
from the state of dreaming — that we have no recollection, when we
awake, of what has occurred during its continuance. Consciousness
is thus cut in two ; memory does not connect the train of con-
sciousness in one state with the train of consciousness in the other.
When the patient again relapses into the state of somnambulism, he
again remembers all that had occurred during every former alterna-
tion of that state ; but he not only remembers this, he recalls also
the events of his normal existence ; so that, whereas the patient in
his somnambulic crisis has a memory of his whole life, in his wak-
ing interval he has a memory only of half his life. At the time of
Locke, the phenomena of somnambulism had been very little studied;
nay, so great is the ignorance that prevails in this country in regard
to its nature even now, that you will find this, its distinctive cha-
racter, wholly unnoticed in the best works upon the subject. But
this distinction you observe is incompetent always to discriminate
the state of dreaming and somnambulism. It may be true that if
we recollect our visions during sleep, this recollection excludes som-
nambulism, but the want of memory by no means proves that the
visions we are known by others to have had were not common

409

§ 501.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

dreams. The phenomena, indeed, do not always enable us to dis-
criminate the two states. Somnambulism may exist in many differ-
ent degrees ; the sleep-walking from which it takes its name is only
one of its higher phenomena, and one comparatively rare. In
general, the subject of this affection does not leave his bed, and it
is then frequently impossible to say Avhether the manifestations ex-
hibited are the phenomena of somnambulism or of dreaming. Talk-
ing during sleep, for example, may be a symptom of either, and it
is often only from our general knowdedge of the habits and predis-
positions of the sleeper, that we are warranted in referring this
effect to the one and not the other class of phenomena. We have,
however, abundant evidence to prove that forgetfulness is not a de
cisive criterion of somnambulism. Persons whom there is no reason
to suspect of this affection, often manifest during sleep the strongest
indications of dreaming, and yet, when they awaken in the morning,
retain no memory of what they may have done or said during the
night. Locke's argument, that, because we do not always remem-
ber our consciousness during sleep, we have not, therefore, been
always conscious, is thus on the ground of fact and analogy dis-
proved."^

§ 501. Prof. Jessen, of Hombeim, near Kiel, a distinguished
practical alienist, gives the following: —

" On a wintry morning, between five and six o'clock, I was

aroused, as I thought, by the head nurse, who reported
Statement ,11 r ,• ^ ^

of Prof. to me that some people had come tor one ot the male
patients, and who at the same time asked me wdiether I
had any particular orders to give. I replied that the patient might
depart, and after he had left the room I turned around to go to sleep
again. All at once it struck me that I had previously not heard
anything regarding the intended departure of this patient, but that
only the prospective departure of a woman of the same name had
been reported to me. This compelled me to inquire more particu-
larly after the circumstances, and accordingly I lighted a candle,
rose, dressed myself, and Avent to the room of the head nurse. To
my surprise I found him only half dressed, and, in reply to my in-
quiry after the people Avho had called for the patient, he said, with
an expression of astonishment, that he did not know anything of it,

• Lectures on Metaphysics, p. 262.

410

DEPRESSION. [§ 503.

as he had hut just left his hed, and no one had called on him. This
answer did not arouse mj consciousness, hut I rejoined that then
the steward must have been in my room, and that I should accord-
ingly go to see and ask him regarding the matter. When descend-
ing a few steps in the middle of the corridor which led to the room,
of the steward, I suddenly became conscious of having dreamed
only wdiat until that moment I had believed to be an experience
whose reality I had not doubted in the least."

III. MENTAL UNSOUNDNESS AS AFFECTING THE TEMPERAMENT.^

1. Depression?

§ 502. By this term may be designated a condition of despon-
dency which continues for a long time, even for years. Depression
without assuming the form of real aberration of mind, "^^^^^jti^^

but which derives peculiar importance and significance stage to

. insanity.

in matters of penal jurisprudence, from the fact that m^

such cases a criminal act often introduces the transition to patent

insanity, inasmuch as it makes its appearance as the first decisive

symptom, which is rapidly followed by others.

§ 503. To Morel we are indebted for the following sketch of

primitive or simple depression.^ As there exists a mania yjg^g of

which shows itself rather in insanity of action than of Morel op

. t^is topic,

mind (manie instinctive), so likewise there exists a state

of melancholy without delirium. Without our often being able to
instance other causes than those phenomena Avhich accompany the
change from adolescence to puberty, from puberty to age, and from
mature age to the critical period ; at these critical periods of life,
we feel a vague weariness, a motiveless fear,* an indefinable sad-
ness, which sometimes is only transitory, and at others is the start-
ing point of the most serious disturbances. It is, says Guislain, a
state of sadness, of dejection accompanied with or without the
shedding of tears, without any notable aberration of imagination.

' See Ettides Medico-Psychologiques 1851, § 109 ; Siebold, Lelirbuch der

sur I'Alienation Mentale, par L. F. E. Gericht. Med. Berlin, 1847, § 200.

Renaudin, chapter II. p. 36. Paris, ^ Trait6 theorique et pratique des

1854. Maladies Mentales, par M. Morel, tome

2 See Krahmer, Handbuch der Ge- i. p. 386. Paris, 1852.
richt. Med. Halle, C. A. Schwetschke,

411

§ 505.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

intelligence, or feeling. The heart apparently is the seat of the
disease ; but soon the malady shows itself in a prostration of all
the intellectual powers, a state which absorbs all individual energy,
and appears to leave only the capacity of suffering. There are few
who have not experienced these painful feelings for a time ; and if
by an effort of reasoning we are able to af&x the form of continuity
to these sensations, we will have a correct idea of this intolerable
state.

§ 504. When a like condition, adds Guislain, is accompanied
with anxieties, groaning, sobs, a desire to commit suicide, or any
other determination, it is no longer in its simplest state.
He proceeds to argue that depression can continue in connection
with the above-mentioned tendencies. How else, he asks, could we ex-
plain those suicides without reason, those irregular actions of Avhich
we see so many examples in instinctive mania, the affection which,
above all others, has the closest relation to melancholy ? In the
greater number of cases, these forms are distinguishable less per-
haps by the diversity of the acts than by the nature of the depres-
sive principles. We may readily admit that instinctive maniacs
generally betray themselves by more capricious deeds, and by more
sudden and more cruelly energetic and destructive determinations,
than the simple hypomaniacs, who rather turn against themselves
their fatal homicidal impulses. In the first case, also, the depravity
of the instincts is often more connected with the organic affections,
a vicious education, or a prior state of immorality, whilst in the
latter class the impulse which the patients themselves deplore is the
harder to be understood, because (1) the individual is generally
placed in the most favorable social condition ; (2) his education has
left nothing to be wished for, and (8) his past history would never
cause the actions to which he is irresistibly forced in this unfortu-
nate unhealthy state to be expected.

§ 505. "Depression of mind," says Reid, " may be owing to
melancholy, a distemper of the mind which proceeds from

Of Reid. 1 p 1

the state of the body, which throws a dismal gloom upon
every object of thought, cuts all the sinews of action, and often
gives rise to strange and absurd opinions in religion, or in other
interesting matters. Yet, where there is real worth at the bottom,
some rays of it will break forth even in this depressed state of
mind. A remarkable instance of this was exhibited in Mr. Simon
412

DEPRESSION. [§ 506. ■

Brown, a dissenting clergyman in England, who, by melancholy,
was led into the belief that his rational soul had gradually decayed
within him, and at last was totally extinct. From this belief he
gave up his ministerial function, and would not join with others in
any act of worship, conceiving it to be a profanation to worship
God without a soul. In this dismal state of mind he wrote an
excellent defence of the Christian religion against Tindal's ' Chris-
tianity as Old as the Creation.' To the book he prefixed an epistle,
dedicatory to Queen Caroline, wherein he mentions ' that he was
once a man, but, by the immediate hand of God for his sins, his
very thinking substance has, for more than seven years, been con-
tinually wasting away, till it is wholly perished out of him, if it be
not utterly come to nothing;' and, having heard of her majesty's
eminent piety, he begs the aid of her prayers. The book was pub-
lished after his death without the dedication, which, however, having
been preserved in manuscript, was afterwards printed in the ' Ad-
venturer.' Thus this good man, when he believed that he had no
soul, showed a most generous and disinterested concern for those
who had souls. As depression of mind may produce strange opin-
ions, especially in the case of melancholy, so our opinions may have
a very considerable influence either to elevate or depress the mind,
even Avhere there is no melancholy. Suppose, on one hand, a man
who believes that he is destined to an eternal existence ; that He
who made and Avho governs the world maketh an account of him,
and hath furnished him with the means of attaining a high degree
of perfection and glory. With this man compare, on the other
hand, the man who believes nothing at all, or who believes that his
existence is only the play of atoms, and that after he has been
tossed about by blind fortune for a few years, he shall again return
to nothing. Can it be doubted that the former opinion leads to
elevation and greatness of mind, and the latter to meanness and
depression ?"*

§ 506. "A pleasant season," says Dr. Rush, "a fine day, or
even the morning sun, often suspends the disease. Mr. depression
Cowper, who knew all its symptoms by sad experience, is often in-
bears witness to the truth of this remark, in one of his
letters to Mr. Haly. ' I rise,' says he, ' cheerless and distressed,

• Reid on the Active Powers of Opinion, p. 576.

413

§ 508.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

and brigliten as the sun goes on.' Its paroxysms are sometimes
denoted ' low spirits.' Tliey continue from a day, a week, a month,
a season, to a year, and sometimes longer. The intervals differ —
1, in being accompanied with preternatural high spirits; 2, in being
attended with remissions only ; and, 3, with intermissions, or, in
other words, in correctness and equanimity of mind. The extremes
of high and low spirits, which occur in the same person at different
times, are happily illustrated by the following case : A physician
in one of the cities of Italy was once consulted by a gentleman who
was much distressed with a paroxysm of this intermitting state of
hypochondriacism. He advised him to seek relief in a convi\dal
manner, and recommended him in particular to find out a gentleman
of the name of Cardini, wdio kept all the tables in the city, to which
he was occasionally invited, in a roar of laughter. 'Alas! sir,' said
the patient, with a heavy sigh, 'I am that Cardini.' Many such
characters, alternately marked by high and low spirits, are to be
found in all the cities in the world. "^

§ 507. In cases of settled depression, the patient on the one
hand is fully convinced that his notions and wishes ought to be
realized ; but on the other he feels the impossibility of effecting
their realization. He, therefore, makes no effort to render possible
the impossible ; yet he cannot resign the ideal, which he bears in
his bosom; he loves his fictions, or the objects of his Avishes so
much, that he cannot part with them. Thus he consumes his
existence in a monotonous grief ; he cannot take interest in any-
thing except the object of his sadness.^

2. Hypocliondria}

§ 508. When the morbid despondency noticed under the last
head extends to the general tone of bodily sensations, a condition

' Rush on the Mind, pp. 82, 83. 1854. See also on this point the fol-

2 Ranch's Psychology, 151. lowing works : Confessions of a Hypo-

3 See Krahmer, Handbuch der Ge- chondriac, or the Adventures of a
richt. Med. Halle, C. A. Schwetschke, Hypochondriac in search of Health,
1851, § 109 ; Siebold, Lehrbuch der Saunders & Otley, London, 1849 ; Re-
Gericht. Med. Berlin, 1747, § 208. See view of same, Journ. of Psychol. Med.
De I'Hypochondrie et du Suicide, par vol. iii. p. 1. See also an article in 20
J. P. Palfret, Paris, 1822; Renaudiu Am. Pract. 19.

sur I'Alienation Mentale, p. 99, Paris,

414

HYPOCHONDRIA. [§ 509.

is produced which vfe commonly call liypoeliondria. In Hypochon-
the inferior stages the patient retains sufficient self-control gt"te of
to conceal if not foro-et his condition, and proceed un- ^otaide-

° _ ' r pressiou.

hindered in his occupations ; but in the higher degrees

he becomes so absorbed in his bodily sensations as to exhibit it in
his appearance and conduct, disregarding every eifort made to raise
his spirits, and reducing all his reflections to the common machinery
of personal questions and answers.^ As this sort of selfishness
increases, the mind is often filled with envy, hatred, bitterness,
suspicion, and revenge towards others, and particularly towards
those in whom the patient believes himself to detect a want of
sympathy, or even of respect, or whom he regards as the authors
of his distress. The result of this is too apt to be a series of unjust
surmises and accusations, personal ill-treatment of others, and even
murderous threats and assaults against the supposed wrong-doers,
as well as the commission of suicide. In the judicial scrutiny and
consideration of such a case, it is essential to inquire how far and
for what length of time the attention of the patient can be directed
from his bodily feelings to other objects ; what is his personal
opinion of his own condition ; wdiether any, and if any what, insane
ideas possess his mind, and what is his general demeanor. Where
the perceptive faculty is not so far involved in the progress of
the disease as to falsify the impressions of the senses, and deprive
the consciousness of the power of correcting them, the defendant,
for reasons we have already given, is to be held responsible ; but
the judge in passing sentence will nevertheless take into account
the morbid impulse which was a subsidiary cause in the commission
of the crime. ^

§ 509. The following description of the hypochondriacal charac-
ter is to be found in the Mddecine Legale de M. Orfila.^ ^

. ... Description

"Hypochondriacs are distinctively remarkable for their of hypo-
exaggerated fears upon the state of their health, and the
foolish ideas they give utterance to in expressing their sufferings.
Their temper is very unequal ; they pass almost without motive
from hope to despair, from grief to gayety, from bursts of pas-

' Ellinger, p. 105. views in Scliilrmayer, Gericht. Med. §

2 Supra, §§ 125 etseq. See the above 542.

» Tome i. p. 416. Paris, 1848.

415

§ 510.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

sion to gentleness, from laughter to tears ; many are timid, pusil-
lanimous, fearful, morose, irascible, restless, hard to please, a tor-
ment and fatigue to every body. They are easily moved ; a trifle
vexes and agitates them, producing fears, torments, and attacks of
despair. The greater number show a marked change in their
affections ; they are egotistical ; the slightest motives cause them to
pass from attachment to indifference or to hate. They are often
susceptible of an exaltation or depression of spirits, of a rapid
succession of the most opposite ideas and emotions, without the
will being able to control the thought.

" But those thus affected have a very good judgment in whatever
relates to their own interests, and generally in everything which
is foreign to their health, unless the disease should end in a total
loss of reason, a thing which is of very rare occurrence. The
peculiar characteristics above described render hypochondriacs more
likely to yield to fear, and more easily moved to contract engage-
ments ; and the faintest suggestions of danger exercise considerable
influence upon their mind. Finally, the jealous, suspicious, irritable,
headstrong character of hypochondriacs would be an extenuating
circumstance, if, under a first impulse, they should commit a repre-
hensible act."

§ 510. " The hypochondriac, constantly preoccupied with his
afiiictions, seeks by every possible means to analyze them. He
often feels his pulse, examines his tongue and his excretions, and
frequently discovers in these investigations causes for fear or hope,
which he sometimes, though the details may be very disgusting,
takes a sort of pleasure in communicating to every body. The
great desire to be cured induces him frequently to change his phy-
sician and his treatment. He seeks for instruction by reading
medical books, and often changes his opinion regarding the nature
of his malady, inasmuch as he applies to his own case all which he
reads or hears of. The mere mention of a disease is sufficient to
start the notion that he himself labors under it ; and, influenced by
this idea, he now discovers in the corresponding organs phenomena
which he had never before experienced.

" But not always is it the fear simply of ordinary bodily dis-
eases which occupies the attention of the hypochondriac and is the
object of his anxiety. Frequently the mental element in his ma-
lady does not escape his notice, and the complete change of his
416

HYPOCHONDRIA. [§ 511.

personality, the possession by morbid sensations and ideas, espe-
cially, however, a certain anomaly particularly in the mental
sphere, in the sensorial sensations, whereby these, although per-
ceived as formerly, no longer produce the same impressions, fre-
quently form the great subject of his complaint. This last and
very remarkable state, which the patients themselves have much diffi-
culty in describing, which we also have ourselves observed in several
cases as the predominant and most lasting symptom, is as well as
possible described in the following letter of one of Esquirol's patients.

" I still continue to suifer constantly ; 1 have not a moment of
comfort, and no human sensations. Surrounded by all that can
render life happy and agreeable, still to me the faculty of enjoy-
ment and of sensation is wanting — both have become physical im-
possibilities. In everything, even in the most tender caresses of
my children, I find only bitterness. I cover them with kisses, but
there is something between their lips and mine ; and this horrid
something is between me and all the enjoyment of life. My exist-
ence is incomplete. The functions and acts of ordinary life, it is
true, still remain to me ; but in every one of them there is some-
thing wanting — to wut, the sensation which is proper to them, and
the pleasure which follows them, , . . Each of my senses,
each part of my proper self, is as it were separated from me, and
can no longer afford me any sensation; this impossibility seems to
depend upon a void which Ifeel in the front of my head, and to be
due to the diminution of the sensibility over the whole surface of
my body, for it seems to me that I never actually reach the objects
which I touch. I feel well enough the changes of temperature on
my sMn, but I no longer experience the internal feeling of the air
when I breathe . . . m,y eyes see and my spirit j^erceives,
but the sensation of that which 1 see is completely wanting,''^ etc,^

§ 511, That hypochondria, in its simple and primary forms,
does not juridically divest the sufferer of responsibility,
will be admitted when we recall the long number of pa- ^ria does°"
tients, some of them among the most active and useful "°* destroy

, , , , responsibi-

members of society, whom, if this position be accepted, lity unless
it would be necessary to sequestrate at once in a lunatic cated and
asylum. But there are cases of aggravated and com- ^ssravated.

» Griesinger's Mental Pathol. Syden. ed. (1867) § 114,

VOL. I.— 27 417

§ 512.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

plex hypochondria when the patient can be no longer considered a
moral agent, and when it becomes necessary to strip him of his
business capacity, and to place him under restraint. Leurot men-
tions, for instance, a hypochondriac who sold his farm, placing the
produce in the funds, so as to be relieved from care — whose inces-
sant attention was bestowed on his health — whose sole occupations
were " ennui" and sleep — who at last would not make the effort of
undressing himself, sat constantly in a half-darkened room, and
who, in his absorbing sense of misery, seemed to lose taste, smell,
and motion. A still more acute case is given by Morel, where the
patient's intrusive misery was such that his demands for sympathy
from his mother and sisters, and the nervous vehemence with
which he forced his griefs upon them, operated to destroy their
health. Of course, when hypochondria reaches such a pitch as
this, sequestration is necessary to the welfare both of the patient
and of his friends.

§ 512. Nor should it be forgotten that hypochondria often is

complicated with other forms of psychical disease by
compii- which responsibility is suspended. Thus with hypochon-
other dis- driacs illusions of personal danger often intervene ; and
dimfmsh- these illusions are complex and occasionally overwhelm-
ing respon- injr. Sometimes the sufferer is watched by an evil
sibility. ^ . . . , . . . "^

eye. Sometimes he is the victim of witchery, magnet-
ism, or poison. Sometimes honor, reputation, liberty, are imperilled
by a hostile conspiracy. An Orange Irishman, for instance, some
years back, in Philadelphia, conceived himself to be in danger of
his life from a conspiracy of Roman Catholics. He in consequence
killed one of his supposed assailants ; and, though there was too
strong evidence of design on his part, and too clear proof of his
consciousness of the illegality of the act, to permit his acquittal,
yet the penal sentence imposed by the court was commuted by the
goveriior to banishment. And it is possible to conceive cases of
hypochondriacal delusions of such a nature that a person committing
an offence under their influence may think he is doing not wrong
but right. In such case responsibility for the particular act does
not juridically exist. ^

' Supra, § 125.

418

HYPOCHONDRIA. [§ 515.

§ 513. Sometiraes, as we are told by Dr. Rush, the pain of a

bodily disease suspends, for a short time, the mental dis- Distress of

tress. Mr. Boswell, in his life of Dr. Johnson, relates a ^°^y ^f*^"^
' _ ' may relieve

story of a London tradesman who, after making a large distress of
fortune, retired into the country to enjoy it. Here he
became deranged with hypochondriasis, from the want of employ-
ment. His existence finally became a burden to him. At length
he was afilicted with the stone. In a severe paroxysm of this dis-
ease a friend sympathized with him. "No, no," said he, "don't
pity me, for what I now feel is ease compared with the torture of
mind from which it relieves me."

§ 514. Dr. Haindorft, in his German translation of Dr. Reid's
" Essay on Hypochondriasis," in alluding to the possi- g ^^^^
bility of a patient laboring under hypochondriasis being dria may
able, by an exercise of the power of volition, to control trolled by
his morbid sensations, justly observes, " We should have
fewer disorders of the mind if we could acquire more power of voli-
tion, and endeavor by our own energy to disperse the clouds which
occasionally arise within our own horizon ; if we resolutely tore the
first threads of the net which gloom and ill-humor may cast around
us, and made an effort to drive away the melancholy images of a mor-
bid imagination by incessant occupation. How beneficial would it
be to mankind if this truth were universally acknowledged and acted
upon, viz. that our state of health, mental as well as bodily, prin-
cipally depends upon ourselves!"

" By seeming gay we grow to wliat we seem,"

It was the remark of a man of great observation and knowledge of

the world, " Only wear a mask for a fortnight, and you will not

know it from your own face."^

§ 515. A French writer mentions the case of a rich peasant who

was possessed with the idea that he was bewitched, and ^^ ,.

who complained to his medical attendant that seven devils peiied by
,.,,.,.,, ^ deception,

had taken up their abode m his body. " feeven, not

more ?" was the physician's inquiry. " Only seven," was the

reply. The physician promised him to rid him of the visitors, one

each day, upon condition that for the first six he was paid twenty

francs, but for the seventh, who was the chief of the band, forty.

' Winslow on Suicide, pp. 169, 170.

419

§ 5l7.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

The patient agreed, and Avas subjected by the physician, who set
apart the fee for charity, to a series of daily shocks from the
Leyden jars, the seventh and last of which was so powerful as to
produce a fainting fit in the supposed demoniac, who, however,
awoke from it entirely freed from his delusion/

§ 516. Burns suffered much from indigestion, producing hypo-
chondria. Writing to his friend, Mr. Cunningham, he says: "Canst
thou not minister to a mind diseased ? Canst thou speak peace and
rest to a soul tossed on a sea of troubles, without one friendly star
to guide her course, and dreading that the next surge may over-
whelm her? Canst thou give to a frame, tremblingly alive to the
tortures of suspense, the stability and hardihood of a rock that
braves the blast? If thou canst not do the least of these, why
wouldst thou disturb me in my miseries with thy inquiries after
me ?" From early life, the poet was subject to a disordered
stomach, a disposition to headache, and an irregular action of the
heart. He describes, in one of his letters, the horrors of his com-
plaint : " I have been for some time pining under secret wretched-
ness. The pang of disappointment, the sting of pride, and some
wanderino- stabs of remorse, settle on my life like vultures, when
my attention is not called away by the claims of society, or the
vagaries of music. Even in the hour of social mirth, my gayety is
the madness of an intoxicated criminal under the hands of an ex-
ecutioner. My constitution was blasted, ah origine, with a deep,
incurable taint of melancholy that poisoned my existence. "^

3. Hysteria.^

§ 517. Hysteria, which only attacks individuals of the female
sex, or males having a feminine organization, resembles
much like hypochondria in its mental and moral symptoms ; but the
epilepsy. nauseous and painful feelings manifest themselves in con-
vulsions, and the alternation between the different states of feeling
is far more abrupt.^

Hysteria presents the same difficult complications as epilepsy.

' Annales Med. Psyc, 1847. Handbuch der Gericlit. Med. Halle, C.

2 Winslow on Suicide, 147. A. Schwetsclike, 1851, § 110.

3 Siebold, Lelirbuch der Gericht. * Scliiirmayer, Gericht. Med. § 543 ;
Med., Berlin, 1847, § 208; Krahmer, Krahmer, Handbucb de Gericht. Med.

Halle, C. A. Schwetschke, 1851, § 109.
420

HYSTERIA. [§ 519.

Psychical disease may either be intermingled with, or entirely
absorb, physical. Sometimes the mental type may be that of
ecstasy ; sometimes that of profound terror-stricken anguish, influ-
encing the patient to abnormal if not illegal acts.

§ 518. Liman^ mentions as psychical symptoms of hysteria, irri-
tability ; impressionability ; want of psychical energy symptoms
and positiveness ; thraldom to physical and psychical im- of hysteria.
pressions ; capriciousness ; rapid change of mood on little or no
cause ; inclination to deceit, falsehood, exaggeration, and simula-
tion; propensity to the odd, the eccentric, the evil, and the unworthy,
coupled with sharp intelligence. These psychical traits, he men-
tions, are to be f^und, more or less pronounced, in connection both
with the intermittent and the remittent corporeal symptoms of those
suffering Avith hysteria ; and these symptoms often, either in their
own course, or in concurrence with other causes, mature into an
insanity whose actions are progressively more and more Avild, and
in which self-control is ultimately lost. The erotic element, accord-
ing to Liman, exhibits itself in this disease with much less frequency
than is generally supposed. On the other hand, Morel calls atten-
tion to the well-substantiated fact that patients of these classes some-
times tenaciously cherish delusions and hallucinations that they have
been the subject of sexual wrongs from others (e. g., rape, abor-
tion, impregnation) ; and detail the circumstances of such wrongs
with a consistency and exactness which, in those unacquainted with
the patient's condition, secure belief.

§ 519. With this may be mentioned cases of intense domestic
irritability, resulting in quarrels at home, and sometimes, as Liman
mentions, in disputes with and rapid changes of medical attendants.
The excitement is more intense at the cataraenial period, and sub-
sides during the intervals. So, also, with regard to admissions
into and dismissal from asylums, which may rapidly alternate.
These patients are the peculiar annoyances, so speaks this experi-
enced observer, of such institutions. Nothing is acceptable to
them but the past and the impossible ; the present and the attain-
able are the causes of petulant disgust. Yet they are peculiarly
subject to discipline. If this discipline can be firmly maintained,
they may be controlled, if not cured.

' Liman's Casper, 1871, p. 443.

421

§ 521.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOaiCALLT.

§ 520. The foro-psychical question in such cases is, are the sense

of right, and the power to do what is right, destroyed ?

may pro- No doubt is there that in hysteria there sometimes exist

^ions affect- ^^^^^ psychical illusions as make it necessary to answer

ing respon- this question in the affirmative. Patients afflicted with
sibility. ^ • i i

this disease, we are told by the experienced and accurate
observers who have been just cited, sometimes believe, not merely
that they have lost hand, eye, or ear, but that they are poisoned,
or subjected to great indignities, which, if the delusion be sincere,
they would naturally endeavor to resent. Yet the difficulty here
arises from the tendency, sometimes epidemic, sometimes sporadic,
in this class of patients to simulate. Any symptom which would
increase personal importance, or draw attention, or excite sympathy,
if not felt, will be feigned. No one who attends such patients but
will be struck, indeed, with the fecundity with which new symp-
toms will be created when old ones have lost their effect. Hence it
is that in hysteria there should be close scrutiny applied to all cases
dependent on the sincerity of such delusions. No doubt, wherever
it appears that a delusion is sincere, the patient is not responsible
for an act committed under its stress. But in view of the fact that
hysteria is fomented by indulgence — in view of the danger to the
community which would I'esult from the emancipation of such pa-
tients from penal control — in view of the injury to which they
would themselves be subjected if they were as a class to be removed
from the sphere of liberty tempered by law to that of confinement
in lunatic asylums, under whose restraints it would be necessary to
place persons so emancipated — hysteria itself cannot be juridically
regarded as suspending moral agency unless mental unsoundness as
an independent state be substantively proved.

§ 521. Attacks of hysteria, although in appearance bearing con-
siderable analogy to those of epilepsy, rarely produce a
of hysteria State of Complete insensibility, and, although they may
exclude ^^^^ longer, they never leave behind them final bewilder-
responsi- ment of mind. However frequently they may occur,
they hardly ever produce mania or dementia, and there-
fore they rarely exclude responsibility.^

' Briand, Med. LSg., p. 569,

422

MELANCHOLIA. [§ 523.

§ 522. Hysteria is described by Dr. Maudsley,^ in his lectures
(London, 1870), as sometimes exhibiting itself in acute
maniacal excitement, with great restlessness, rapid and ley's de-
disconnected and yet not entirely incoherent conversa- ^y"teri° °^
tion sometimes tending to the obscene, and perversity of
conduct more or less incoherent and seemingly wilful. " With the
perverted sensations and disordered movements there is always
some degree of moral perversion. This increases until it swallows
up the other symptoms ; the patient loses more and more of her
energy and self-control, becoming capriciously fanciful about her
health, imagining or feigning strange diseases, and keeping up the
delusion or the imposture with a pertinacity that might seem in-
credible, getting more and more impatient of the advice and inter-
ference of others, and indifferent to the interests and duties of her
position. Outbursts of temper become almost outbursts of mania,
particularly at the menstrual periods. An erotic tinge may be ob-
servable in her manner of behavior ; and occasionally there are
quasi-ecstatic and cataleptic states. It is an easily curable form of
derangement if the patient be removed in time from the anxious but
hurtful sympathies and attentions of her family, and placed under
good moral control ; but, if it be allowed to go unchecked, it will
end in dementia, and it is especially apt to do so when there is a
marked hereditary disposition. "^

Hysteria, as an element in what is called religious insanity, is
hereafter discussed.^

4. Melancholia.

§ 523. Melancholia may be defined as settled and continuous
depression. In its higher degrees, the various gloomy and morbid

1 See also Dr. Hammond's Diseases to that species of melancholy which is
of the Nervous System, N. Y., 1881, most affected by the weather and by
and authorities cited under this head, other depressing circumstances. This

2 Body and Mind, London, 1870, p. term has been seriously adopted by
79. Siebold, Gericht. Med. § 212, Melan-

3 Infra, § 676. cholia Anglica, sive Autochira. Fr. B.
* Siebold, Lehrbuch der Gericht. Osiander, in his interesting volume on

Med., Berlin, 1847, § 208. Dr. Cheyne, Suicide, discusses the same topic,
rather jocularly than otherwise, ap- Hannov., 1813, 8, § 207
plied the term, "The English Malady,"

423

§ 523.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

Meiancho- feelings are accompanied by distinct imaginings, which
lia is settled ,1,1.1 , f 1 ,,•■•■ ^ ■ ^

and con- take their character irom the sort 01 agitation in which

presskm^^' the disease commenced, the general opinions and cha-
racter of the individaal, the pursuits which last occupied
him, and the trials to which he may have been subject.^ For all
these feelings the patient seeks explanations, and finds them either
in himself {inelancliolia concentrica), or in surrounding things and
circumstances Qmelancholia periplierica) . In the former case he
takes himself severely to task for small or inconsiderable errors, or
declares, with an air of sincere conviction, that he has committed
great crimes, as murder, etc., and has incurred, by his inexpiable
fault, the displeasure of God and of the world, and eternal damna-
tion. In melancliolia reJigiosa such suiferers ask to be tried and
punished ; they complain of the loss of what is most dear to them,
apprehend poverty for themselves and their families in the future,
or even imagine themselves possessed by demons. In melancholia
dcemonica, they accuse other persons of malevolence and persecu-
tion, to which they ascribe their ailments. It is characteristic of
this phase of disease, that the patient never sees surrounding things
as they are, but always in a light corresponding to his gloomy frame
of mind ; frequently, also, this false coloring turns into a real illu-
sion of the senses, particularly in the peripheric form, which is the
reason that it so frequently ends in lunacy. The external conduct
of the patients, the manner in Avhich they execute the dictates of
their wills, is very various. In melancholia attonita they sit motion-
less and speechless ; in other cases, they can hardly find words
enough to depict their distress ; sometimes they are perpetually in
motion — melancholia aetiva et errabunda. In peripheric melan-
choly they scold and swear about their grievances, become noisy
and excited, and resert to violent means of resistance or revenge.
In this manner, melancholy often becomes the occasion of mur-
derous assaults, and sometimes murders of the most cruel kind, as
well as of suicide .2

• Scliiirmayer, Gericht. Med. § 544; of periodic melancholy, The Med. Rec,

compare Ellinger, p. 108 ; Lee^ous Cliu- Aug. 14, 1875. For articles on suicide

iques surl'Alifination Mentale ; Falret, see Proceedings of N. Y. Med. Leg. Soc.

Le^on 7th, p. 185. Paris, 1854. Etudes (N. Y. 1872), pp. 1-37,

Medico-Psychologiques sur I'Alienation 2 T^g above summary is taken from

Mentale. L. F. E. Renaudin, chap. iv. Schiirmayer, Gericht. Med. § 544.
p. 178, Paris, 1854, See, for a case

424

MELANCHOLIA. [§ 524.

§ 624. Melancholia, or "Alienation partielle depressive," as it
has been called by Falret, has, as its name indicates, for

.... 1 1 , • ,. -, • 1 ^ Character-

its principal characteristic, a depression, sloAvness and jgtics of

prostration of all the faculties united with general anx- Jj^eiancho-
iety. This fundamental disposition of the sensibility and
intelligence produces, in the greater number of those thus affected,
a crowd of analogous consequences. Everything is viewed by them
in a distorted light ; all their relations with the external world are
changed ; they look upon everything with repulsion and antipathy ;
they bear with difficulty the kindest remarks of their relations and
friends, and consolation itself irritates them. In entire contradic-
tion to nature, the patient cannot retire within himself. He finds
nothing within but anxiety, doubt, and mistrust, both of himself
and others. Everything seems changed around him. He is often
afflicted, and sometimes irritated by it, and thinks the alteration
due to those that surround him, rather than to any personal change.
Thence come irritation, anger, and violence, against himself and
others. He then abandons the world that injures him, and sinks
into complete inactivity.

Frequently it is not only against the world in general, but against
his best friends, that the patient directs his suspicions, his mistrusts,
and his hatred. To this general state of depression, anxiety and
gloominess succeed. After this comes both a physical and moral
prostration, in which there is more or less complete suspension of
sensibility and intelligence. Whilst the sensibility is thus op-
pressed and affected, the will is equally enfeebled, inactive, and
powerless.

The physiognomy is concentrated and anxious, expressing dulness
and stupidity, followed by habitual and sometimes entire silence,
and slowness of movement carried sometimes to immobility. These
external signs correspond with the internal condition we have just
described, and form an exact picture of this kind of mental disease.

Among the sufferers of this class, some, feeling a general anxiety,
think they have done a bad action, have committed a crime, sup-
pose themselves reserved for severe punishments, both in this world
and the other, and, overwhelmed with scruples, they criminate
themselves for the most innocent actions of their lives, or imagine
themselves possessed by the devil and abandoned of God. Others,
in consequence of the sentiment of mistrust which controls them,

425

§ 525.] MENTAL UNSOUNDNESS CONSIDERED PSTCHOLOaiCALLY.

imagine themselves to be surrounded by spies or invisible enemies,
and, according to their previous ideas, their education, or the age
in which they live, tliink themselves under the power of sorcery,
magic, magnetism, the police, etc. Others, entirely wrapped in
their sadness, think themselves ruined, accused, dishonored, or even
betrayed by their relations and friends. In a word, the delirious
ideas which become the centre of the greater part of the preoccu-
pations of the intelligence and of the feelings, and which appear,
at -first sight, to constitute all the delirium, are in reality only the
relief to the general condition which gives birth to them. In spite
of their infinite variety, they all partake of the general character
of the disease.

There is not, then, in melancholy, as has often been asserted, a
concentration of the attention, or even of all the moral and intellec-
tual powers, upon one sad idea, but a general state of sadness and
depression which shapes itself in one predominant idea, and mani-
fests itself by a crowd of other morbid phenomena.^

§ 525. Melancholia is apt to arise in men from excessive sexual
indulgence or self-abuse ; in women from derangement
due to of the menstrual functions. This is peculiarly the case

causes ^^^'^ ^^^^ revolution of the system which accompanies a

cessation of menstruation. There are in this state " all
sorts of anomalous sensations of bodily distress, attesting the dis-
turbance of circulation and of nerve functions ; and it is now that
an insane jealousy and a propensity to stimulants are apt to appear,
especially when there have been no children. When positive insan-
ity breaks out, it usually has the form of profound melancholia,
with vague delusions of an extreme character, as that the world is
in flames, that it has turned upside down, that everything is changed,
or that some very dreadful but undefined calamity has happened
or is about to happen. The countenance has the expression of a
vague terror and apprehension. In some cases, short and transient
paroxysms of excitement break the melancholy gloom. These
usually occur at the menstrual periods, and may continue to do so
for some time after the function has ceased. "^

' See Leejons Clinique sur I'Aliena- London, 1870. See also Dr. Luke's

tion Mentale, de M. Falret. Lecjon 9. Insanity of Pregnancy, Puerperal In-

Paris, 1854. sanity, and Insanity of Lactation ; and

2 Body and Mind, by Dr. Maudsley, Dr. Storer's Insanity in Women.

426

MELANCHOLIA. [§ 527.

§ 526. In some phases of this disease, the motives are not pres-
ent to the consciousness, and the act is committed in a ,

May pro-
state of mental confusion, preceded sometimes by the duce men-

almost imperceptible symptoms of silent depression, gion and "
sometimes by the traces broad and deep of havoc in the c^^t^^V^^^'
affective faculties, and accompanied often by a sudden
loss of self-control, visible paroxysms of terror, and a fancied pur-
suit by fiends.^ The transition from melancholy to mania is open
to the simple explanation, that melancholia is the first stage of
psychical disease in general, and contains within itself the germs of
all other phases. ^

§ 527. In other cases there is also an absence of conscious mo-
tives, but in their place an uncontrollable restlessness, an
indistinct but overaAving feeling of dread, and an incess- opment of
ant morbid approach of those abnormal moral propensi- impulses,
ties which will be considered under the next head.
EUinger correctly observes,^ that " impulses of this kind often ex-
cite the most desperate struggles in the mind ; evoke the most
various external means to overcome them ; place the murderous in-
strument into the hands of the individual, from which reason wrests
it again ; drive him again into solitude and far from the subject of
the mad desire, and induce him to give warning to the threatened
victim, to plan and to attempt suicide ; and, when at last the fatal
deed is nevertheless accomplished, there is a calmness and a clear-
ness in the manner in which he anticipates the impending punish-
ment, which to an unpractised observer must exclude every idea of
an underlying mental derangement. Such subjects either betray
the ordinary symptoms of depression, or only those incident to the
specific propensity, which throws the consciousness into a state of
distraction, and fills the mind with fear and dread. In either case,
the impulse whether preceded or not by a brief relaxation, comes
suddenly, in which case it will be found in connection with disturb-
ances of the bodily functions, among which may be enumerated
cessation of the natural period or of other natural or ordinary
evacuations, rush of blood to the head, exhaustion by loss of blood,
protracted nursing, excesses, epilepsy, approach of severe attacks
of sickness. The immediate oGC&sion of the act may be the view of

» Ellinger, p. 112. 3 Ellinger, p. 114.

2 Schiirmayer, Gericht. Med. § 545.

427

§ 529.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

a naked figure, the sight of an execution, of blood, of a murderous

instrument or other means of committing crimes, or the recital of

such an occurrence ; the ultimate cause is found, according to Ideler,

in the associations of feelings and desires according to their contrast,

and the struggle and contradiction thus arising,"

§ 528. In still another order of cases, as we are told by Schiir-

mayer, the consciousness is not only in full possession of
Or con-
scious acts the motives, but the act is conceived on the ground of a

haihicina-^ chain of reasoning and executed with a degree of arrange-

tions or de- j^gnt and circumspection apparently inseparable from a
lusions. '^ ^ ^ '' ^ _

clear state of the understanding. Here, as will be seen
more fully hereafter, the motives are sometimes hallucinations, par-
ticularly of the ear (voices heard), which give commands to the
madman, sometimes a wish to die without the courage to commit
suicide directly, but with the design of incurring capital punish-
ment by the murder of others (persons the subject of an old grudge,
or such as are entirely innocent, as children) ; sometimes the notion
that the destruction of the world is at hand, or that a terrible mis-
fortune impends, against Avhich it was necessary to protect the ob-
ject of particular affection, which is best effected by death. Under
such circumstances, as will presently be more fully seen, suicide, or
self-inculpation, is common, and sometimes a vindictive feeling
against the supposed authors of the person's suffering, which the
mind often debates with itself for a length of time, until all doubt
is removed by some new hallucination.

§ 529. This brings us to the cases, to which reference has been
Homicide elsewhere made,^ of suicide, or of the homicide of chil-
or suicide dren, under the influence of deep mental depression.

under influ- . ,. . , „ ,

ence of de- The patient s condition becomes one of hopeless melan-
piession. choly. The most terrible calamities he believes to be
gathering over himself and those whom he loves. Life, if it con-
tinues, will be to them misery unutterable, incomparable. Death,
under such circumstances, is a blessing. To invite it he considers
a duty, and to kill his children, and then himself, the highest
office of self-sacrificing love. This state has been well termed
Precordial Anguish. It has been so abundantly and unequivocally
illustrated that as to its existence there can be no doubt. In addi-

> See §§ 155, 529, 636, and Appendix to 3d ed. of this work §§ 837, 839, 842.
428

MELANCHOLIA. [§ 530.

tion to the cases already given, may be mentioned that of the father,
referred to by Casper, who, before killing his children under the
influence of this feeling, shook hands with them and caressed them,
as if on the eve of a solemn and tender sacrifice which was to re-
lease them from all their cares.

§ 530. One peculiar phenomenon sometimes connected with this
state has been noticed by psychologists. Between the
resolution and the performance of the terrible act the preceded
mind of the patient becomes preternaturally calm. The of c^^f^n*^
tumult and terror which preceded the purpose have sub-
sided. There may be even a sort of ecstasy in the relief from the
agitation which had attended the prior conflict between affection in
its lower and what is believed to be afi"ection in its higher stage.
This peculiarity, indeed, is common to sanity as well as insanity.
When we have been torn by conflicting motives as to the duty of
any particular step, and at last have come to a determination, even
though this determination has been caused by the preponderance of
a mere straw, then unrest is succeeded by rest, and our sole care is
that the pm-pose be duly executed. Such periods of lull, and of
quiet and calm preparation, have been sometimes observed in those
who, under the influence of melancholy, have been parties to the
fearful acts which have just been noticed. It has been hence super-
ficially inferred that they were at the time sane. But the lull is
no proof that there has not been a prior unloosening of the stays of
sanity. All the fastenings of the mental mechanism may have been
previously removed. The machine may run for awhile longer with
apparent ease, but the crash will eventually come, as in an engine
whose rivets have been withdrawn. Yet this unsoundness is not to
be presumed. The mind's prior perturbations, the shocks to which
it may have been previously subjected, its congenital or hereditary
weaknesses — these must be proved. But when these are shown in
such a way as to establish melancholia as a disease, the calmness
which immediately preceded the act must not be treated as proof of
sane design. From insanity this state of lull issued, and to insanity
it will revert.^

' See, as illustrating this interme- melancliolia, in whom, prior to the

diate intelligence, two cases mentioned act, the same calmness was noticed,

by Brierre de Boismont, in the Annales See, for this point viewed legally,

d'Hygiene, pub. 1863. Dr. Liman supra, §§ 140-162.

speaks of "hundreds" of suicides in

429

MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

CHAPTER V.

MENTAL UNSOUNDNESS AS AFFECTING THE MORAL SENSE.

I. General "Moral Insanity."

"Moral insanity" repugnant to sound
psycliology, § 531.

Depends upon false assumptions, § 532.

Mental and moral functions not separa-
ble, § 533.

Thouglit necessary to all action, § 534.

Ambiguity of terms, § 538.

Reason and moral sense are interde-
pendent, § 539.

Burden on those who set up moral in-
sanity, § 540.

1. Authorities in the affirmative.

Ellinger and Pinel, § 541.

Esquirol, § 542.

Gall, § 543.

Prichard, the originator of the term,
§ 544.

In later times, Ray, § 545.

Carpenter, § 546.

Morel, § 547.

Campagne, § 548.

Brierre de Boismont, § 549.

Mittermaier has been incorrectly cited
as approving this view, § 550.

Its most consistent advocate is Prosper
Despine, § 551.

2. Present weight of authority is in the
negative.

On the negative side are Heinrich
Leubuscher, and Gray, § 552.

Schiirmayer and Wiuslow, § 553.

And Mayo, § 554.

Analysis by Dr. Gray, § 555.

Criticism by Griesinger, § 556.

By McFarland, § 557.

By Jules Falret, § 558.

430

By Workman, § 559.

And repudiated by the Association of

Superintendents for the Insane, §

561.
So by Liman, § 562.
German law opposed to doctrine of

moral insanity, § 563.
Kraflft-Ebing's tests for moral insanity,

§ 564.
Convicts only rarely insane, § 565.

II, Special "Moral Monomanias."

1. At present repudiated.

Doctrine of special moral monomanias
assumes a subdivision of "moral
insanity," § 567.

This doctrine disproved by former rea-
soning, § 568.

Additional authorities : Ideler, § 569.

Kraflft-Ebing, § 570.

Casper, Griesinger, and Liman, § 571.

2. Psychological absurdity of classification.

Analysis should be subjective and not
objective, § 572.

Classification of the "moral-insanity"
theorists not harmonious, § 573.

Defects of classification, § 574.

III. Prominent Forms of Supposed

Monomania.
1. Homicidal mania.
Its distinctive features, § 578.
Approved by Ray, § 579.
Tests suggested by him, § 580.
Supposed instances of homicidal mania,

§ 581.
Maudsley maintains that this mania is
distinctive, § 583.

MENTAL UNSOUNDNESS AFFECTING THE MORAL SENSE.

Manias not irresistible, § 585.

Mania, if existing at all, is general,
not special, § 586.

No defence when reason exists, § 588.
2. Kleptomania.

Analysis by Ellinger, § 590.

Illustrations, § 591.

No defence when reason continues, §
592.

Proof cases indicate general insanity,
§ 593.

Value of article stolen not necessarily
an element, § 596.

Criticism of Kraflft-Ebing, § 597.

Unreasonableness does not prove in-
sanity, § 598.

Kleptomania not a proof of insanity,
§ 602.

3. Pyromania.

Pyromania a symptom of insanity, §
604.

Ray's opinion, § 605.

Disapproved in/bro judicio, § 606.

Checks proposed by Hencke, § 606 a.

Opinion of Griesinger that pyromania
is impossible, § 607.

So Krafft-Ebing, § 608.

Statistics on subject disprove the mania
theory, § 609.

Doctrine has arisen from misconcep-
tion of experts, § 610.

But pyromania may be a symptom of
insanity, § 611.

Insanity must be shown to make it a
defence, § 612.

Analysis of cases by Flechner disprov-
ing doctrine of pyromania, § 615.

Juridically and psychologically "pyro-
mania" has no existence, § 616.
4. Erotomania.

Sexual passion distinct from other
natural instincts, § 617.

Irresponsible sexual insanity impossi-
ble, § 618.

Views of those in favor of the doctrine,
§ 619.

Responsibility ceases when act is the
result of physical causes, § 620.

Instances of morbid erotic impulses,
§ 621.

But these must proceed from general
insanity, or else could be resisted,
§ 622.

5. Pseudonomania.

Unreasonable to consider this a dis-
tinct mania, § 626.

The habit is voluntary, § 627.

Even insane are responsible for volun-
tary untruths, § 628.

Habit does not create irresponsibility,
§ 629.

6. Oiheiomania.
Prichard's description of this "mania,"

§ 630.
Domestic perversity often associated

with social urbanity, § 631.
Instances of this "mania," § 633.
Oikeiomania not a distinct mania and

cannot create irresponsibility in the

insane, § 635.

7. Suicidal mania.

Suicidal propensity consistent with
sanity, § 636.

Not always a symptom of insanity,
§ 637.

8. Dipsomania.

Periodic craving for liquor not an un-
common disease, § 639.

But " dipsomania" not a distinct form
of insanity, § 640.

Analogy with other appetites, § 641.

A physical not a moral disease, § 642.

9. Fanatico -mania.
(a) Supernatural or pseudo-supernatural
demoniacal possession.
(a') Such possession a priori impossible,

§ 644.
(6' ) Solvahilitij of this evidence hi/ natu-
ral tests.
(«2) Disease. Brain influenced by

stomach, § 646.
(h^) Morbid imitative sympathy. Hys-
terical emotions often become epi-
demic, § 647.

431

§ 532.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

Most cases of siipernatural possession
really hj^sterical, § 648.

Instances of morbid epidemics, § 649.

(c^) Legerdemain and fraud. Appa-
rently inexplicable occurrence often
mere deception, § 651.

So in supposed supernaturalism, § 652.

(d^) Mistake of senses. Supposed ap- '
paritibn often due to mistake of
senses, § 654.

Or optical delusion, § 655.

(e^) Knowledge attributed to dreams
probably procured from other
sources, § 656.

Supernatural presentiment often an
awakening of memory, § 657.

Memory independent of corporeal con-
ditions, § 658.

(/2) Natural jjhenoniena at present in-
explicable.

Sucli are "ecstasies" and magnetic
phenomena, § 659.
(c') Historical evidence of such posses-
sion.

Belief in demonology taught by ancient
philosophers, § 660.

Conflict of opinion as to authority of
New Testament on the subject, § 661.

Demoniacal possession does not now
exist, § 661a.

(b) Religious insanity.

(a') Christianity/ taken in its practical
sense has no tendency to produce in-
sanity, § 662.
Philosophical necessity and liberta-

rianism, neither inconsistent with

reason, § 664.
Religion conducive to sanity, § 665.

(6') What is called religious insanity is
produced —
(a^) By a departure from practical

Christianity, § 669.
By appeal to unscriptural supernatu-
ralism, § 670.
Desire for sympathy often becomes

chronic and hysterical, § 675.
Selfishness a germ of hysteria, § 676.
(b^) By constitutional idiosyncrasies,

§677.

§ 678.

10. Politico-mania.
Politico-mania no defence, § 681.

I. GENERAL "MORAL INSANITY."

§ 531. The doctrine of "Moral Insanity" — i.e. supposed insanity
"Ml ^^ ^^® moral system coexisting with sanity of the mental
Insanity" — ];ias been already examined in its legal relations,

repugnant . . , .

to sound and has been shown to he incompatible not only with
psyc o ogy ^^^ reported decisions of the courts, but with the
principles of philosophic penal jurisprudence.^ It remains now to
demonstrate that this doctrine is equally repugnant to sound psy-
chology.

§ 532. The coexistence of mental sanity with an alleged moral
insanity is, as will at once be seen, essential to the independent
existence of this supposed phase of diseased irresponsibility. We
must therefore exclude, from the category of distinctive " moral

> See supra, §§] 62-189.

432

GENERAL MORAL INSANITY. [§ 533.

insanity," all those cases in which the mind is insane. To establish
this hypothesis, therefore, the following points must be proved: —

First, that the moral and mental functions are so
separable that one can be insane without involving the upon°faise

XI assump-

"'^"®^- _ _ tions.

Secondly, that this severance actually exists in the
cases which are vouched as establishing moral insanity.

Thirdly, that, even supposing such severance, the peculiar con-
dition of morals that thus is assumed confers irresponsibility.

The third of these points has been already discussed, it being
peculiarly a proposition of law.^ The first and second we will now
examine.

§ 533. Sir William Hamilton, to repeat a citation already made,
in defining the mind, says : " If we take the mental
to the exclusion of material phenomena, that is, the moral func-
phenomena manifested through the medium of self-con- ggp^^j-rbie.
sciousness or reflection, they naturally divide themselves
into three categories or primary genera : the phenomena of Jcnow-
ledge or cognition, the phenomena of feeling or of pleasure and
pain, and the phenomena of conation or of will and desire.''^ Mr.
Bain, belonging to a very different school, arrives, as we have pre-
viously seen, substantially at the same result.^ "The only account
of mind strictly admissible in scientific psychology consists in speci-
fying three properties or functions — -feeling, will or volition, and
thought or intellect, through which all our experience, as well ob-
jective as subjective, is built up. This positive enumeration is
what must stand for a definition." He proceeds to say that
" FEELING includes all our pleasures and pains, and certain modes
of excitement, or of consciousness simply, that are neutral or indif-
ferent as regards pleasure and pain. The pleasures of warmth,
food, music, the pains of fatigue, poverty, remorse, the excitement
of hurry and surprise, the supporting of a light weight, the touch
of a table, the sound of a dog barking in the distance, are feelings.
The two leading divisions of the feelings are commonly given as

• See supra, §§ 163-189. Seguin, Dr. Jewell, and Dr. Folsom, in

2 Mental and Moral Science (2ded.), the North. American Review for Janu-

London, 1868, p. 2. On this topic see ary, 1882.

essays by Dr. Elwell, Dr. Beard, Dr.

VOL. I.— 28 433

§ 534.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

sensations or emotions." " Will or volition comprises all the
actions of human beings in so far as impelled or guided hy feelings.
Eating, walking, building, sowing, speaking are actions performed
with some end in view ; and ends are comprised in the gaining of
pleasure or the avoiding of pain. Actions not prompted hy feeling
are not voluntary. Such are the powers of nature — wind, gravity,
electricity, etc. — so also the organic functions of breathing, circu-
lation, and the movements of the intestines." " Thought, intel-
lect, intelligence or cognition includes the powers known as per-
ception, memory, conception, abstraction, reason, judgment, and
imagination. It is analyzed, as will be seen, into three functions,
called discrimination or consciousness of difference, similarity or
consciousness of agreement, and retentiveness or memory. The
mind can seldom operate exclusively in any one of these three modes.
A feeling is apt to be accompanied more or less by will and by
thought. When we are pleased, our will is moved for continu-
ance or increase of the pleasure (will) ; we at the same time dis-
criminate and identify the pleasure, and have it impressed on the
memory (thought)."

§ 534. Let us apply this analysis to some of the cases which
are adduced as illustrations of moral insanity by the
necessary writers on this specialty. A man, for instance, is as-
toaiiac- saulted by another, or conceives himself so to be, so as
to be in danger of losing either life or that which is
more precious to him than life. Feeling is the first function of
the mind which is here addressed ; but this necessarily involves
thought. "Is the assault intentional?" "Was it designed?"
" Can I infer, judging from former assaults, or from what I have
observed or heard, that it is aimed at life ?" " Can it be repelled
in no other way than by killing the assailant ?" Pursuing inqui-
ries such as these, feeling, guided by thought, directs the will
to the particular object. Without thought, feeling would strike
blindly into mere space. Even in the lowest point of view, dis-
crimination is needed to distinguish the victim from others, and
judgment to determine that killing him is a proper act of self-de-
fence. Thought, therefore, is necessarily involved in the act of
killing, and the killing takes place because the assailant thinks
it best. To constitute a valid plea of derangement in such a case,
it is necessary to show that the perceptive and reasoning powers
434

GENERAL MORAL INSANITY. [§ 539.

were deranged. Otherwise, the case would not differ from that of
homicide in a sudden fit of rage.

§ 535. Or take the case of "kleptomania." The feeling
which lies at its base is longing for some particular thing. But
to shape as well as to effectuate this longing, thought must be in-
voked. Thought is needed to identify the object with that which
previously gave gratification ; to distinguish it from other objects ;
to secrete it ; to carry it successfully away. In true kleptomania,
so far from the derangement being distinctively in the feeling, such
derangement is to be peculiarly traced to thought or intellect. It
is no mark of derangement on entering a jewelry store to desire a
brilliant that may lie on the counter. But to think either that it
is right to take it, or that it can be taken without disgrace, assumes
an abnormal and insane condition of intellect.

§ 537. The same reasoning applies to all cases of alleged mono-
mania. A child sets fire to a house (pyromania). Here the child
selects the particular house by tfiouglit ; applies the match with
thought ; is determined to the act by a mental process on whose
sanity or insanity the question of responsibility depends. Or
sexual propensity is yielded to without restraint (erotomania) ; and
here, also, thought, in its lower phases of memory, distinction, and
identification, is necessary to procure gratification, while in its
higher phase of reason and sense of right, where it exists it creates
responsibility. This form of insanity, in other words, cannot be
psychologically shown, unless it affects thought.

§538. The difficulty is that "moral insanity," in the popular
acceptation of the term, includes two distinct diseases. Ambio-uity
The first, following the phraseology of Bain and Hamil- of terms,
ton, as just stated, is that of enfeebled or paralyzed thought, ap-
proaching dementia. Here, feeling, held in but slight check by
the reasoning powers, acts on the will, involving thought only so
far as is necessary to identify and secure the object of desire. The
other case is that of delirious or deluded thought, where unreal
objects are set up for feeling to desire. But in both cases, the
primary seat of the disease is in thought and intellect.

§ 539. How unsatisfactory are the analogies which are invoked
to explain this alleged separa^e?tfss of the moral sense. Reason and
will readily be seen. The reason, the memory, the !i'J"'f,j\^!^'^^^
moral sense, it is declared, are each packed away in a pendent.

435

§ 539.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

series of hermetical compartments ; and, so far from their mu-
tually commingling, one may be actually insane Avithout the
others being in any sense affected. Man is thus like an iron
steamboat, whose hull is divided into a series of water-tight cham-
bers, so arranged that if the rivets of one chamber loosen, or its
plates decay, the injury sustained is to itself alone. But it would
be far more correct to compare the ego to the steamer's machinery,
in which the derangement of one particular part is the derangement
of the whole. Taking reason in its large sense, we must all admit
that reason and the moral sense are in the highest degree inter-
dependent. Thus, if an act is repugnant to our moral sense, the
closest logical process will fail to convince us of its propriety. On
the other hand, waiving the question whether there is such a thing
as an innate moral sense, there is no doubt that this function is one
which, supposing it to be actually wanting, or naturally weak, may
be built up by education.^ Dr. Arnold, whose cheerful temper and
whose liberal theology alike remove from him the suspicion of
pessimism in this relation, and whose experience was wide and
close, tells us that in the boy nature the moral sense is weak and
capricious, and that " conscience" as a power is greatly developed
by education. He quotes with emphatic approbation the well-
known lines : —

' ' The old man clogs our early years

And simple childhood comes the last."^

1 See particularly SMjora, §§115,188- born without reason, or possessing it
403. only to a low degree, becomes an in-

2 On this point we have the follow- stance such as we often see, illustrating
ing corroborating remarks of Dr. Mc- this point. The instincts of the idiot
Farland : "Another explanation of are low, and are prevented from be-
the phenomena termed moral insanity coming depraved only by the amount
should not be lost sight of. We are of reason which he has. The small
apt to forget the vast conservative pow- degree of reason that he possesses may
er of reason in saving man from the de- educate the faculties of fear, of censure
praved appetites and instincts common and punishment, and love of approba-
to him with the brute creation. Swift tion, and may cause him to imitate his
has well shown the humiliation of our superiors by a propriety of conduct
species when man's reason was given that may set him above criminal acts,
to the brute and himself left without The same power exerted over the moral
it. We all remember, in the enter- propensities by the processes of pure
taining narrative of Captain Gulliver, reasoning is also shown in the cases of
what a sorry brute man becomes when children. Childhood, notwithstanding
thus transformed. A human being, the praises bestowed on it as tlie un-

436

GENERAL MORAL INSANITY. [§ 539.

Few acts are so cruel, few so immoral, he tells us, as to shock
the moral sense of hoys steeped in the atmosphere of a puhlic
school. He applies to morals, though not in the same words,
Fichte's aphorism as to faith ; man's attitude in infancy is yes ; in
youth, no ; in maturity, yes. The moral sense in infancy is obedi-
ence ; in youth, chaos ; in maturity, obedience. As we grow older and
wiser and more thoughtful, a thousand things, at which our moral
sense in youth would not pause, become to us abhorrent. And, if
moral sense, in its higher relations, be not congenital, a con-
sciousness that there is a law imposed on us which will punish us if
we do wrong, acts as a substitute which rises in value precisely as
the law is known to be executed evenly and surely. We may take,
as illustrating this, those very criminals who are declared to be
" destitute" of moral sense ; men who present every test of what
is called moral insanity ; men who show no shame or remorse for
wrongs done by them, and with whom the recollection of their
crimes is as evanescent as their recollection of their daily meals.
Yet even such men are arrested, when concocting crime, by the
fear of punishment, if that fear is made sufficiently reasonable to
them. They will, indeed, seek to gratify their passions, but they
will do so in channels which punishment does not block up. They
are like blo'ckade runners who carefully scrutinize the coast — Avho
avoid the roads on which the blockading squadron stands guard —

sullied spring-time of existence, does will an inclination to those same acts

not compare with mature age in the return when that essence which has

rightfulness of its acts. The burglary rescued from them is withdrawn,
and murder of birds-nesting peculiarly "Hence the position taken, that

gratify the juvenile heart, and how moral insanity, if by that term is meant

often must the ghost of the family cat, a disease of the effective faculties, in

done to death by truant hands, haunt which the intellect has no share, has

the little murderer's pillow ! Whoever no proved existence ; and that what

has looked, too, upon a quarrel in has received that appellation is nothing

petticoats, waged for a bit of cake, sees more than either the result of a latent,

a ferocity as great almost as the death- undetected delusion, whose modus ope-

struggle of mortal foes. Yet what but randi we are unable to demonstrate, or

the power of pure reason, working the passive effect of a weakened inliu-

through years, changes these robbers, ence of the reasoning powers over

murderers, falsifiers, and belligerents man's base instincts." — Ain. Journ. of

into discriminating judges and revered Ins., July, 1863.

dispensers of the gospel of mercy and See, also, observations by Dr. Seguin,

peace ? And how easily and naturally in the North Am. Rev., for Jan. 1882.

437

§ 539."1 MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

who lie outside until they discover some unguarded passage ; and
who then, under cover of night, with muffled wheels, and stealthy
motion, slink in through the gap. If the venture cannot be made
with good hope of success, then the adventurer creeps sulkily back.
If it is known that the port is thoroughly guarded, then the attempt
is not even made. All this shows reason, and reason sometimes of
a high order, operating in such a way as to create obedience to
law. Even the outlaw avoids the act which he knows the law will
certainly detect and punish. Supposing, then, the compartment
containing the moral sense to be actually empty — supposing, in
other words, there be a man destitute of moral sense — then reason,
saying, " if you do this you will be punished," comes in and fills
the compartment with a principle, which, though inferior to dis-
interested virtue, yet is sufficient to preserve peace in the commu-
nity, and to keep its most desperate classes in check.' These, it is
true, may be said to be extreme cases. We may justly assert

1 Garroters are as a class the most
desperate and brutish of English crim-
inals ; and as long as the worst which
the chances of conviction offered was
teansportation, or imprisonment under
the present humane mitigations of pris-
on life, the passion for garroting was
irresistible. It is otlierwise, however,
since flogging has been revived as a
punishment for violent robberies. The
following is from- an English paper of
1872: "Two years ago the house of
commons introduced and passed a
measure providing for corporeal pun-
ishment by the common hangman in
cases of garroting and robberies, with
violence, from the person. An account
of the prisoners flogged has just been
issued. Only the initials of the con-
victs are given, with the nature, rea-
sons, and amount of the punishment,
the persons by whom it was ordered,
and those by whom it was witnessed.
In the seven years covered by the re-
turn, 5614 floggings were administered
in England and Wales. The great in-
strument is still the birch, and boys

438

are its chief subjects. Most of the boys
thus birched were over ten years of
age ; the majority seem to be between
eleven and fourteen. There are, how-
ever, a considerable number at eight
and nine ; about a couple of dozen at
seven years of age, and one small in-
corrigible who stands in the catalogue
as only four — which we are inclined to
hope is a misprint of fourteen. He is
down as having been sentenced at the
Marylebone police court in April last,
and as having received ten stripes with
the birch. The more formidable in-
strument of punishment is, of course,
only used for older criminals. The
' cat' appears to be used in about one
case in fifty. In 178 cases it had been
administered under the powers of the
act of 1864. It is a noteworthy fact
that since garroters have been sen-
tenced to floggings the offence has al-
most disappeared from the criminal
records of England." To same effect,
see Statement of Sir Edward Thornton,
in North Am. Rev., Jan. 1882, p. 7.

GENERAL MORAL INSANITY. [§ 541.

that there is no man entirely destitute of moral sense ; that there is
always some flickering of conscience, and that there is always a
moral capacity which education develops or perverts. But this
makes the case the stronger. Education is reason acting on certain
supplied data ; and it is the duty of government to make these data
plain and right — to declare that crime will be followed by punish-
ment— so that the right conclusions may be drawn. On either
view we find reason either modifying the moral sense, or creating
something in its place. So far, therefore, from reason and moral
sense being separate and independent functions, they are so inti-
timately allied that the one cannot be deranged without (disturbing
the action of the other. There can be no insanity of the moral
sense which does not imply insanity of reason. There can be no
insanity of reason which does not produce insanity of the moral
sense.

§ 540. The second necessary factor to the reception of the doc-
trine is, as above stated, that this alleged severance of

1 11 ^ J ,1-1 Burden on

the moral and mental factors should appear to be not those who
merely possible but actual, i. e., that it should be proved mora? in-
by recorded cases of persons who are at the same time ^^'^^^y-
morally insane and mentally sane. If, as has just been seen, there
can be no moral without mental insanity, it follows that in all cases
where moral insanity exists, there must be mental disease, however
occult. That such is the case will be hereafter shown, when the
various forms in which alleged moral insanity exhibits itself will be
specifically examined.

As introductory to this inquiry, however, come properly the
opinions of experts. Does the iveigJit of authority among experts
substantiate the existence of this supposed distinctive disease?

1. Authorities in the affirmative.

§ 541. For the idea of "moral insanity" we must go back to
Ellinger, who speaks of it, though only speculatively, Eiiin^-er
under the name of melancholia sine delirio sive pertur- '•^^^ Pinei.
batio mentis, mania sivie delirio. Pinel (1745-1826) made at one
time the general statement " that there are madmen in whom there
is no perceptible alteration of the intellectual process, of the per-
ceptions, judging faculty, imagination, or memory, and yet a perver-
sion of the manifestations of the will, in a blind impulse to the

439

§ 542.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

commission of violence, or even of bloodthirsty rage, without any
assignable dominant idea, any delusion of the imagination, which
could cause such a propensity." Pinel is no doubt entitled to the
highest respect, both for his skill and his humanity. Under his
administration, the Bic^tre and the Salpetri^re were in time rescued
from barbarous neglect, and placed in a condition of comparative
health, moral as well as physical. A rightful reaction from the
cruelty of the old French conception of insanity, acting, it is true,
in his case on a mind not free from romanticism, naturally led him
to accept Rousseau's idea that crime is itself an insanity. Yet,
when we scrutinize his writings, we will be surprised at finding how
cautious his speculations really were. Manie sans delire he no
doubt spoke of as a specific form of insanity ; but the illustrations
he used to establish this are all cases of melancholia or of suppressed
mania, whose distinctive feature was not the absence of mental dis-
turbance, but simply the absence of delirium and incoherence. He
positively tells us that he has rarely seen cases of this class in
which the mind was not " changed or perverted."

§ 542. Esquirol (1772-1840) was Pinel's assistant at the Sal-

petri^re, and imbibed, though under more strictly scien-
EsquiroL \^ ' . . _ ' , ° . . . "^-r, ,

tific conditions, his master s humanitarian views. Jout he

concedes that psychologically there can be neither '• moral insanity,"
nor " reasoning mania," nor insanity of any kind, in which the
understanding is not " more or less afiected." In fact his argu-
ment on this point is precisely that used in the following pages to
show the psychological absurdity of an exclusively moral insanity.
" Were it not thus'''' (that the understanding is afi"ected), " the
insane would permit themselves to he controlled hy their understand-
ing, and would discover that their views are false, a7id their ac-
tions unusual and strange. Their understanding is more or less
at fault ; it has lost its influence over the will, and is no longer in
harmony with the other faculties. Among the insane who, without
motive, are drawn away instinctively to the commission of repre-
hensible acts, which would he criminal if they enjoyed the use of
their reason, intellectual action is suspended. ''^^

' For the translation and citations of Am. Journ. of Ins. for 1866 (vol. 23),
this and the prior quotation I am in- p. 30.
debted to an article by Dr. Chipley, in

440

GENERAL MORAL INSANITY. [§ 544.

§ 543. To Gall (1758-1828) we are indebted for most of the
well-known and well-used anecdotes which form the chief
proof-cases of moral insanity. Like Pinel, of whom he
was the contemporary, he was tinged in his philosophy by the sen-
timental humanitarianism of Rousseau ; but unlike Pinel, he was
as devoid of any practical experience as an attendant on the in-
sane as he was deficient in scientific accuracy as a psychologist.
Of the truth of his phrenological surmises it is unnecessary here
to speak ; it is sufficient to say that he based these surmises on
statistics the most careless. Reports of experts, testimony Avhich
had been rendered on judicial examinations, judgments of courts,
seem to possess no interest to him ; and most of the proof-cases
already alluded to, and which hereafter will frequently recur to
our attention, are cited by him from " personal observation," or
from " German newspapers," without any references which will
enable the citations to be verified. Nor does he pretend to give
a full report even of those cases which without a full report would
be worthless. Thus he tells us of persons who had " irresistible
impulses" to commit certain crimes ; but he gives us no evidence
from which we can infer that the case, having been duly explored,
was not one where general insanity could be proved. It was this
looseness which, notwithstanding the ingenuity of the Reclterches
sur le Systtme Nerveaux, etc., presented by him to the Academy,
left him with but a single vote when his name Avas proposed for
membership to that body.

§ 544. To Dr. Prichard (1786-1848), however, the term "moral
insanity" OAves its origin, and the idea, such as it is, its
conception. Plis scientific researches were mainly in the origi-
ethnology. Psychology received from him little notice, t^e"e°^
nor does it appear that until 1841 he paid much atten-
tion to the condition of the insane. His practice, down to that
period, was in Bristol,- England, but his reputation was rather
literary than medical ; and no one can glance at the medical con-
troversies of the day without seeing that his rank in his own pro-
fession was not high. Hence it was that the term " moral in-
sanity," when introduced by him, was often treated Avith ridicule,
and was invested with an extreme meaning Avhich he never in-
tended to convey. For he is far from saying that the " morals "
could be exclusively and irresponsibly insane. He tells us that

441

§ 546.] MENTAL UNSOUNDNESS CONSIDEEED PSYCHOLOGICALLY.

in " moral insanity " there is " in many cases " " hereditary
tendency to madness ;" in others, prior " madness ;" in others,
" a slight attack of epilepsy, or some fever or inflammatory dis-
order."

§ 545. Prominent among more recent exponents of this view is
In later ^^^' K.ay. " In fact, it has always been observed,"
times, Eay. gj^yg j.}-^jg eminent and experienced physician, " that
insanity as often affects the moral as it does the intellectual per-
ceptions. In many cases there is evinced some moral obliquity
quite unnatural to the individual, a loss of his ordinary interests
in the relations of father, son, husband, or brother, long before a
single word escapes from his lips ' sounding to folly.' Through
the course of the disease the moral and intellectual impairments
proceed pari passu, while the return of the affections to their
natural channels is one of the strongest indications of approaching
recovery. Such being the fact, it ought not to be a matter of
surprise that in some cases the aberration should be confined to
the moral impairment, the intellectual, if there be any, being too
slight to be easily discerned."

§ 546. Bearing on the question on its physiological
side, we have the followed observations of Dr. Carpen-
ter: —
" The more active forms of delirium pass by almost imperceptible
gradations into the state of mania, which is usually characterized
by the combination of complete derangement of the intellectual
powers with passionate excitement upon every point which in the
least degree affects the feelings. There is, however, a considerable
amount of variety in the phases of mania, depending upon differ-
ences in the relative degree of intellectual and of emotio7ial distur-
bance. For there may be such a derangement of the former as
gives rise to complete incoherence in the succession of ideas, so that
the reasoning power is altogether suspended ; and yet there may
be at the same time an entire absence of emotional excitement, so
that the condition of the mind is closely allied to that of dreaming
or of rambling delirium. On the other hand, the intellectual powers
may be themselves but little disturbed, the trains of thought being
coherent, and the reasoning processes correctly performed ; but
there may be such a state of general emotional excitability, that
nothing is felt as it should be, and the most violent passion may be
442

GENERAL MORAL INSANITY. [§ 549.

aroused and sustained by the most trivial incidents, or by the wrong
ideas which are formed by the mind as a consequence of their mis-
interpretation. Between these two opposite states, and that in
which the disturbance affects at the same time the intellectual and
emotional parts of the mental nature, there is a complete succession
of transitional links ; but under all the phases of this condition
(these often passing into each other in the same individual) there
is one constant element, namely, the deficiency of volitional control
over the succession of thought. This deficiency appears to be a
primary element in those forms which essentially consist in intellec-
tual disturbance ; whilst in those of which emotional excitement is
the prominent feature it seems rather to result from the overpower-
ing mastery that is exercised over the will by the states of uncon-
trollable passion which succeed each other with little or no interval.
It seems probable, however, from the phenomena of intoxication,
that the very same agency which is the cause of the undue emotional
excitability also tends to produce an absolute diminution in the
power of volitional control."^

§ 547. As inclining to accept the doctrine of mania sine delirio,
thoush with great cautiousness of expression, we may

° * . . . Morel.

cite Morel, a recent distinguished French writer on in-
sanity, from whom copious translations are made in the third edition
of this work.

§ 548. Campagne^ may be also ranked as a modified adherent of
the same school, though, with the usual French passion

Campagne.

for novel discrimination, he expurgates from his " moral
insanity" all the supposed " moral monomanias," and ends by re-
jecting Pinel's descriptive title, "/o?^<? raisonnantey

§ 549. M. Brierre de Boismont^ has been cited as a vindicator
of the same doctrine, though not very accurately. In Brierre de
the first place, it may be observed that he disowns the Boismont.
French parentage of the disease, calling it the '' moral insanity
of the English ;" closing his eyes to the fact that it is repu-
diated in toto by English jurists. In the second place, when he
comes to define this " moral insanity of the English," he gives

' Carpenter's Physiology, Phil., 1856, ^ See his essay in Annales d'Hygiene

§§ 704, 707. Publique, Nos. 53, 54. 1867. See

2 Traite de la Manie Raisonnante, Maschka's Handbuch Gerich. Med.

par le Docteur Campagne. Paris, 1869. Tubingen, 1882.

443

§ 551.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOaiCALLT.

symptoms very different from that phase of moral insanity which is
described by exponents of this view among ourselves. Thus he
declares that the disease in question is but a symptom or manifesta-
tion of general insanity. Intellectual derangement exists and will
be displayed by the patient when off his guard. A cautious and
protracted examination will even discover marks of mania in his
letters. He does not trouble himself, we are further informed,
about his acts of guilt, and generally does not regard them as
wrong. Certainly this " moral insanity of the English" would not
be regarded by English writers of this school as convertible with
moral insanity as defined by themselves.

§ 550. Mittermaier, a jurist of great ability, has also been cited as
Mitter- approving this view : but, when his writings on this topic

maier has are scrutinized, it will be found that this assumption is

been mcor- ...

rectiy cited erroneous. In his edition of Eeuerbach's Lehrhuch des
ingthis " Peinliches RecJits,^ he is careful to declare (1), that
^^^^' the so-called latent insanity {amentia occulta) is not a

substantive, independent disease, and (2) that the assumption of
monomania is gratuitous, because all alleged cases of insane mono-
mania are resolvable into other forms of disease, and in sane mono-
mania, responsibility is not extinguished. This brings him to the
question of " irresistible" impulse. He admits this condition, but
he speaks of it as the incident of disease ; and he links the symp-
tom with melancholia, maintaining that ivhen thus constituted there
exists a powerful impulse, an irresistible force Qein geivaJtlidtiger
Trieh, eine unividersteldiche Kraft). This is very strong language ;
but he adds that to constitute this state, there must be at the time
a suspension of self-consciousness. When this is conceded, and
when we remember that he rejects the hypothesis both of amentia
occulta and of monomania, we find that all that he admits is that in
certain states of mental disease, there are, in connection with melan-
cholia, irresistible impulses.

§ 651. But the most consistent and philosophical vindication of
these views is to be found in the Fsiiclioloqie Naturelle,

Its most 7-. 7 1 m ■ It

consistent or ±,tude SUV h Iraitement des Alienes et des CrimineJs,
Prospe/^ ^1 ^^- Prosper Despine, published in Paris in 1868.
Despine. Capital punishment this learned theorist emphatically

> Giessen, 1847, p. 16f), § 90a.

4i4

GENERAL MORAL INSANITY. [§"551.

denounces as an invasion of inalienable human rights. Retributive
punishment of any kind is to be discarded, and only such punish-
ment as is reformatory applied. Moral sense, he declares, is not
the result of knowledge, and cannot be acquired. Some men are
destitute of it, and these men are not to be taught. Such a defi-
ciency is moral insanity or moral idiocy. There may be intellectual
clearness, and the capacity to reason accurately, coexistent with
this derangement of the moral sense. To sustain this position,
Despine is obliged to start a new definition of free will (libre
arbitre), which he informs us can only exist when there is capacity
to act from a sense of duty. He who acts from other motives than
a sense of duty is not a free agent. Hence from the category of
free agents are to be removed (1), he who does acts which appear
to him indifferent, i. e. neither good nor bad, and (2) he who does
an act which appears pleasant to him, because it is pleasant. Duty
he declares to be the great moral motive of life, compared with
which all other moral motives are coarse and egoistic. He alone
who acts in obedience to duty is free from selfishness and egoism.
He, for instance, who obeys his parents from love is egoistic and
selfish. He obeys from the pleasure he receives in obeying. He
who obeys from duty, on the other hand, acts irrespective of his own
pleasure and advantage. He alone is unselfish. Yet duty is the
high prerogative and the exclusive test of a moral agent. Except
by those who are governed by a sense of duty, there can be no
moral agency. He who is governed, not by duty, but by affection,
or by any other form of feeling (the author forgets that sense of
duty is also a feeling) simply follows the lower animals in the points
in Avhich they differ from man. Hence it is, according to Despine,
that he alone who acts under a sense of duty is responsible. Those
who are destitute of a sense of duty are not responsible. These
propositions are supported by a very copious list of criminals whom
Despine announces to have been destitute of moral sense ; which,
with a boldness of assumption like that which characterizes his other
psychological assertion, he declares to be proved by an absence in
such cases of remorse or repentance for their evil deeds. In other
words, where there is no remorse there is no moral sense, and where
there is no moral sense, there is no responsibility, and where there
is no responsibility there is no proper punishability. And this is
then carried a stage further by tlie declaration that absence of moral

445

§ 552.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

sense is to be inferred from the commission of all gross and cruel
crimes, and hence that such crimes imply irresponsibility. In other
words, every great criminal is, in the moment of his crime, morally
insane ; and it is as unjust to punish such as it is unjust to punish
lunatics. The fallacy of this reasoning rests, it need scarcely be
said, in the assumption that " sense of duty," like the various other
faculties and properties of the mind, is contained in a separate and
hermetical compartment; and that, when this compartment is empty,
it cannot be filled by reason. But there is no such separation, as
has been already fully shown, of the mind's several faculties and
functions ; and it is notorious that in persons most destitute of natu-
ral sense of duty, this faculty may be supplied by reason. A man
may naturally, for instance, be destitute of a sense of duty to
government ; but let government show that it means to be respected,
and this sense of duty will soon spring up. So a child who, imder
a lax and indulgent mother, shows no sense of duty to parents, will
soon, on the intervention of a firm and wise father, learn that there
is such a duty, and act accordingly. Enlightened duty, in fact, is
often the creature of positive law. Of course as to the insane there
is no capacity to determine this law, and no material, therefore,
from which duty can be deduced. But in the sane, it is the busi-
ness of the law to create and guide this sense of duty, and this must
be done by precept and penalty.

2. Present weight of authority is in the negative.
§552. Among those by whom the theory was contested imme-
diately after its promulgation may be mentioned Hein-
gative side ^ich^ and Leubuscher,^ two very experienced German psy-
rk^h^Leu- chological physicians. With these may be classed, though
buscher, later in date, Dr. Gray, of New York, whose great prac-

and Gray. . . ' , . . - ,. . ,

tical experience is given in a series of articles in the
American Journal of Insanity. It is interesting to observe also
that in five essays by eminent psychological physicians (Dr. Elwell,
Dr. Beard, Dr. Seguin, Dr. Jewell, and Dr. Folsom), in the North

1 Kritische Abhandlung liber die von ^ Bemerkungen ilber Moral Insanity
Pridiard als Moral Insanity geschil- und ahnliche Krankheitszustande.
derte Krankheitsform. Allgemein. Casper's Wochenschr., Nr. 59 u. 51.
Zeitschr. fiir Psychiatric, V. Bd. 4
Hft.

446

GENERAL MORAL INSANITY.

[§ 552.

American Review for January, 1882, " moral insanity," as such,
finds no support.^

' From the London Lmo Times of
Dec. 17, 1881, we take the following
extract from the Lancet, a journal
which speaks with high medical au-
thority : —

" We fancied the 'plea of insanity'
had been reduced to absurdity in the
ridiculous attempt made to show that
Lefroy was insane ; but it seems that
the apotheosis of stupidity is to take
place in America. It is high time the
nonsense recently talked and written
about ' irresponsibility ' should be
exposed and ended. If the supreme
triumph of medical psychology is to
be sought in the attempt to prove that
men are mere machines, and that the
wrong they do is not their doing, but
the outcome of disease, the sooner this
branch of science is discountenanced
by the common sense of the profession
the better will it be for the credit and
influence of our cloth. If a man is
not acting under a recognizable and
formulated delirium when he commits
a crime, he is clearly responsible, and
ought to be so held unless he is un-
questionably, and on grounds other
than those arising out of or associated
with his crime, shown to be insane.
The mistake into which ' experts '
and those who follow their lead com-
monly fall is to confound the evidences
of a neurotic constitution with the
symptoms of mental disease. The in-
heritor of an organism which predis-
poses to insanity is not necessarily in-
sane. Lefroy was not insane, and
Guiteau is not insane. The only in-
sanity accruing to the latter case is
that which those who support the plea
may themselves import into it. The
position of matters in regard to this
question is becoming one of exceeding

gravity, and it will soon need to be
very seriously discussed."

The Times, in a leading editorial,
says : —

" The trial now in progress at "Wash-
ington and the controversy which took
place just before Lefroy's execution
are foretastes of a discussion which
is pretty sure to recur whenever any
crime a little out of the common order
is committed. The fact is that opi-
nion has got decidedly astray as to
insanity. People have cast away the
old notions without getting any safe or
certain substitute for them. Was
there ever a more striking scene of
confusion than that which is repeated
day after day at Washington ? The
witnesses are at sixes and sevens.
Each expert feels bound to start a
separate theory. One doctor, who
thought Guiteau insane, threw a vivid
light on the value of his testimony by
adding that one of every five persons
in business might be considered as on
the border line of insanity. Others
were certain of the prisoner's insanity
because he has talked so much about
being inspired. Some of the experts
are most influenced by the shape of
his head ; otliers by the strangeness
of his utterances. The poor jurymen
are to be pitied if they try to sift out
the few grains of wheat in this prodi-
gious heap of chaff. Unfortunately,
they are not likely to be better ofi" if
they shut their ears to the ' mad doc-
tors,' and try to follow the legal test
of insanity. That has, no doubt, the
merit of definiteuess. It may be arbi-
trary ; it is at least clear. Whether a
man knew that he was doing wrong
or not is a test which the dullest jury-
man can understand and apply. But

447

§ 553.] MENTAL UNSOUNDNESS CONSIDERED PSTCHOLOaiCALLY.

§ 553. Explicit in rejecting this hypothesis is Schiirmayer. He
insists that it is not to be supposed tJiat a single imjjuhe is diseased,

great authorities quote Pinel, and say
that this is a criterion worthy of the
darkest ages, and that if it were put
in practice, humanity would be shocked
at the consequences. Only a few lu-
natics are wholly destitute of the sense
of right and wrong. Maniacs who kill
their children or their wives in pa-
roxysms of passion have often an un-
easy sense that they are acting wrongly;
to escape some terrible and oppressive
phantom of the brain, they are im-
pelled to stab or mutilate those who
are dearest to them. The ' mad doc-
tors' ' view of the matter is that we
should put the legal test aside as anti-
quated ; that we should recognize in
courts as elsewhere the existence of a
vast number of types of insanity ; that
what Pinel called ' madness without
delirium ' is common ; and that we
should refrain from punishing many
persons whom the legal theory would
consign to prison or to the scaffold. It
is amazing what an extension is thus
given to insanity. Let any one look
into a book of the sixteenth century
about Disquisitiones Magicoe, or the
science of diablerie, as then under-
stood, and it will be seen that, mak-
ing allowance for alteration of lan-
guage and ideas, there is something
like resemblance between the witch-
finders of other times and some of the
ingenious specialists of the present
day. The latter do not talk of per-
sons being possessed with or agitated
by demons. They may quote a Greek
word instead of imagining the pre-
sence of an evil spirit. But both agree
in their ingenuity in detecting the ex-
istence of mental anomalies. What
adds to the confusion of simple people
is that lawyers also are found to be
divided in opinion as to this matter.

448

It is true that ever since MacNaghten
was tried for the murder of Mr. Drum-
mond the test in criminal matters has
been that ' if the accused was con-
scious that the act was one which he
ought not to do, and if that act was at
the same time contrary to the law of
the land, he is punishable.' But even
lawyers are not quite satisfied with
this criterion. Certainly it is not ac-
cepted in all systems of jurisprudence.
When the present criminal code for
Germany was being prepared, the
framers of it, of course, discussed the
question of sanity ; and the sugges-
tiojis ofi'ered were most diverse. The
conclusion ultimately arrived at was
very different from the test in use here.
So shaken by criticism is the legal
standard that it is every-day expe-
rience in courts of justice that counsel
put forward a plea of insanity when
there is not the slightest pretence for
suggesting that the prisoner did not
know what he was about. And what
is more, this is often done with suc-
cess. The jury are merciful, and side
with the doctors against the lawyers.
Indeed, the legal theory in all its
strictness is practically obsolete. No
jury, for instance, would be got to con-
vict a person who, knowing that it was
contrary to the law to kill, took the
life of some one whom he believed he
was providentially called upon to de-
stroy. In one class of cases the medi-
cal theory of insanity may be said to
have triumphed. An eccentric person
makes a will or executes a deed in
favor of a stranger. He leaves his
property to the Crown. He directs
his body to be dissected. His will is
disputed by his relatives. They have
not got to show that he was imbecile
or a manaic, or that he was oblivious

GENERAL MORAL INSANITY.

[§ 553.

lohile all the oilier functions of the mind retain their SchUr-
Tiealthy action. While the entire intellect enjoys sound Wiasiow.

of all moral distinctions. They may
admit that he was clever and shrewd
and of more than average intelligence,
and yet impeach his fitness to make a
will. The late Mr. Smee, once secre-
tary to the committee of treasury of
the Bank of England, was a competent
man of business ; he took an active
part in politics ; he wrote shortly be-
fore his death a clever pamphlet on
the malt tax. Yet he labored under
a hallucination that he was the son of
George IV., and a will by which he
left his property to the corporation of
Brighton was set aside on that account.
In fact, in the probate court, the doc-
tors' view, that a partial delusion not
in any way affecting a man's sense of
right and wrong may be treated as in-
sanity, is acted upon. At the Old
Bailey it is otherwise."

The New York Tribune of January
2, 1882, gives the following summary
of the expert testimony in the Guiteau
case : —

" Twenty- three physicians have been
examined upon the stand with regard
to insanity. One, Dr. Fordyce Barker,
was questioned generally upon the
subject, as bearing upon responsibility
for crime, etc., without any direct re-
ference to the prisoner. Seven physi-
cians were asked and answered a hypo-
thetical question for the defence, which
assumed the insanity of the prisoner,
and could hardly be answered, if at
all, in any other way than by an ad-
mission that, assuming the statements
to be true, he was insane. These were
Dr. Charles H. Nicholas, of the Bloom-
ingdale Asylum ; Dr. Charles F. Fol-
som, of the Harvard Medical College ;
Dr. Golding, of the Government Hos-
pital for the Insane ; Dr. James H.
McBride, of the asylum near Milwau-

VOL. I.— 29

kee, Wis. ; Dr. Walter Channing, of
Brookline, Mass. ; Dr. Theodore W.
Fisher, of Boston, and Dr. James G.
Kiernan, of Chicago. The defence made
no attempt to elicit from these gentle-
men the result of examinations made
at the jail. It is understood that if
they had been questioned upon this
point, most, if not all, of them would
have pronounced Guiteau sane.

" Fourteen experts in insanity have
testified that Guiteau is, in their opi-
nion, sane. These included four ex-
perts originally summoned for the de-
fence : Dr. Samuel Worcester, of Salem,
Mass.; Dr. Theodore Dimon, of Auburn,
Dr. Selden H. Talcott, of the New York
Homoeopathic Asylum at Middletown,
and Dr. Henry P. Stearns, of the Re-
treat for the Insane at Hartford, Conn.
The remaining ten were Dr. Loring,
the oculist, Dr. Allan McLane Hamil-
ton, of New York ; Dr. Janin Strong,
of the asylum near Cleveland, 0.; Dr.
S. M. Shew, of the Middletown (Conn.)
Asylum ; Dr. Orpheus Evarts, of the
College Hill Asylum, near Cincinnati ;
Dr. A. E. Macdonald, of the New York
City Asylum ; Dr. Randolph Barks-
dale, of the Richmond Asylums ; Dr.
John H. Callender, of the Nashville
Asylum ; Dr. Walter Kempster, of the
Northern Asylum of Wisconsin, and
Dr. John P. Gray, of Utica, N. Y. All
these gentlemen positively pronounced
Guiteau sane. To their number can
l)e added Dr. Noble Young, the jail
physician. Of the twenty-four physi-
cians in all examined, one only — Dr.
E. C. Spitzka, of New York — gave it
as his personal judgment that the pri-
soner is insane. There were a number
of experts in attendance, such as Dr.
Pliny Earle, who would have testified
that Guiteau was sane, but were al-

449

§ 553.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

health, there is nothing in which a morbid desire of theft, mur-
der, etc., could originate, and such a phenomenon is a psycho-
logical impossibility, and the assumption of such requires a psy-
chological contradiction. A mania sine delirio, a mania without
a morbid participation or disturbance of the perceptive faculties,
is, therefore, out of the question, as a desire to injure or destroy
is impossible without an act of the mind by which this purpose is
entertained, and as reason and understanding are alike disordered
whether they insinuate a wrong motive for the morbidly-conceived
purpose of the act, or whether they entirely omit the suggestion of
any reason whatever.^

So, also, Dr. Winslow : " Is there not," he says, " a mysterious,
inscrutable, and inexplicable oneness in the constitution of the
human mind, defying all attempts at an accurate and minute classi-
fication and separation of its powers ? If such a state of mutual de-
pendence, action, and union obtains between various states of mind
(I will not use the arbitrary term ' faculty' or ' power') in a condi-
tion of health, d/orizoW, how impossible it is to disjoin, separate,
and individualize the mental faculties Avhen under the influence of
disease. Can we draw the line of demarcation between a diseased
and healthy condition of the delicate structure of the vesicular
neurine of the brain ? Is it not obviously impossible for the most
experienced anatomist to say. This is the territory which separates
the morbid from the healthy portion of the brain ? or for the physi-

lowed to go home on account of sick- toms which a man claiming his delusion

ness or for domestic reasons. ought not to have, and has none of the

"The testimony given by the four- symptoms and traits which he ought

teen experts covers every ground upon to have. If he is insane, there must

which insanity has been or can be be a new classification of insanity, and

claimed. As accumulated, it is an Guiteauism must be given a place in

avalancheof proof against the assassin, the books with mania, melancholia.

It has been shown that he has none of and dementia."

the physical signs of insanity; in the Tothisitmay be added that Dr. Gray's

shape of the skull, condition of the testimony was emphatic, not only to

skin, tongue, or palate, appearance of the sanity of Guiteau, but to the non-

the eye, habits of sleep, digestion, etc. existence of "moral insanity" as a

It has been shown that if he is insane, distinct disease producing irresponsi-

he is an exception to all the intellec- bility. See ijifra, § 657, for Guiteau's

tual manifestations seen in the expe- case in detail.

rience of the most distinguished alien- ' Schiirmayer, Gericht. Med. § 549 ;

ists. He has all the traits and symp- supra, § 58, etc.

450

GENERAL MORAL INSANITY. [§ 553.

cian to assert, such an extent of disorder of the mind is consistent
with safety and responsibility, but beyond the boundary danger and
irresponsibility commence ?

" But, apart altogether from the metaphysical objection to the
theory, let us for a moment consider whether such a form of disease
as partial insanity or monomania comes under the observation of
the practical physician. There are, undoubtedly, forms of insanity
in which there is an unhealthy predominance and exaltation given
to particular mental impressions or delusions ; where certain states
of morbid thought and feeling stand out in bold and prominent re-
lief, giving, as it were, a character or type to the mental disease ;
hut I never yet saw a case of alienation of mind in which the delu-
sion or hallucination was in reality confined to one or two ideas,
those ideas exercising no influence over the conduct of the person^
and not implicating , to a certain degree, the other faculties of the
mind. It is impossible to circumscribe the operation of morbid
conditions of thought, or to draw a line of demarcation between
those states of mind that are clearly under the influence of disease,
and those operations or faculties of the intellect that remain appa-
rently unaifected. A man believes himself to be our Saviour, or
Mahomet the prophet. Apparently the man's mind is sound upon
all other points ; but within what limits can we confine and restrain
the influence of so serious a delusion ?

" A slight accession of bodily disease, a severe attack of indi-
gestion, congestion of the liver, or a torpid state of the bowels,
may make all the difference between security and safety in such a
case. A person laboring under the dominion of one palpable insane
delusion or hallucination (I am now using the term delusion in its
strictly medical acceptation), ought not to be treated quoad the
question of criminality as a sane and rational man. But let me for
a minute revert to the question as to the existence of partial insan-
ity, or monomania. Foville, a French physician of great celebrity,
who had for many years the medical charge of the Charenton
Lunatic Asylum near Paris, when speaking of monomania, observes :
' Monomania consists in a delirium, partial and circumscribed to a
small number of objects. Monomania, in its most simple condition,
is excessively rare ; the number of patients who only rave on one
subject is infiyiitely small compared to the number of those who are
called monomaniacs. Under this head are often confounded all

451

§ 554.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOaiCALLY.

those who have some habitual dominant idea. I have only seen
two cases which rigorously merit the name, and these two even
were affected from time to time with more extended delirium.'

" He again remarks : ' Let any one examine the hospitals of
Paris, of Bicetre, of Charenton, and he will see that amongst the
thousands of insane, there is scarcely one true monomsimac, perJiaps
not one. Insanity attacks principally, at one time the intellectual,
at another the moral or affective faculties ; and, again, the sensa-
tions and movements. Each of these may be more or less affected
than the others ; and so, when the intellect, without being unaf-
fected, is less deeply involved than the other faculties, we fall into
the error of considering it sound, and call these monomaniacs.
Indeed, it seems to me as though the descriptions of monomania
had been written upon the word, and not from nature ; that is to
say, that writers have described what might merit the title of
monomania, but of which they can find no instance in practice.'

" Moreau, also a great authority in France, says : ' It is impos-
sible to admit that the intellectual faculties can be modified in a
partial manner. In the slightest as well as the most severe forms
of insanity, there is necessarily a complete metamorphosis — a radi-
cal and absolute transformation of all the mental powers of the one.
In other words, we are insane or we are not insane ; we cannot be
half deranged or three-quarters, full face or profile.'

" Baillarger, an eminent French psychological physician, adopts
the same view of the question, and maintains that the alleged mono-
maniacal idea is more frequently predominant than exclusive. If
we look to Germany, we find the first psychological authority of
that country, Damerow, declaring that ' he never knew a case of
the disease of the mind called monomania, in which there was not
a fundamental, general psychical disorder.' "^

§ 554. Dr. Mayo thus speaks on the same point: " I may observe
that the theory of either moral or impulsive insanity is
too liable, for anything that Dr. Prichard has suggested,
to occasion the sudden outbreaks of the brutal character — a cha-
racter under rapid development, at present, in the lower orders of

1 Dr. Forbes Winslow's Essay on the vol. xv. p. 173. See an article in 13
Legal Doctrine of Responsibility, re- Bulletin Med. Leg. Soc, N. Y., 161.
printed in Am. Journal of Insanity,

452

GENERAL MORAL INSANITY. [§ 554.

the country — to find refuge under this plea. Such was the appli-
cation of it which, some years ago, protected the Honorable Mr.
Touchet from the penal consequences of a great crime. That gen-
tleman put to death, by a pistol-shot, the marker of a shooting-
gallery. The act was sudden, and there was no apparent motive ;
but it was not performed under any semblance of delirium. Mr.
Touchet was eccentric, and he was blase. He fancied that he de-
sired to be hanged — at the gallows he would probably have thought
differently — and he was reckless and brutal enough to give himself
a chance of this fate, at the expense of the life of a fellow creature.
I have noticed him since in the criminal department of Bedlam, in-
souciant and indifferent enough, but certainly not insane in any
sense of the word that would not entirely disintegrate its meaning ;
neither when we proceed to consider the sense which the law in-
tends to give to the expression of the certificate — ' unsoundness' —
shall we find this epithet at all more appropriate to Mr. Touchet's
case, which was simply one of brutal recklessness. With respect
to the misapplication of the plea of insanity to hysteria, we have
the case of a nursery-maid, placed in Bethlehem Hospital in 18-iO.
A trifling disappointment, relative to an article of dress, had pro-
duced in her a wayward state of mind. She labored, at the time,
under diminished catamenia. An object to which she Avas generally
much attached came in her way, namely, the infant whom she had
nursed, and she destroyed it, as a fanciful child breaks, in its moodi-
ness, a favorite doll. No fact more nearly approaching to delirium
than the above was stated in exculpation or excuse at the trial.
But Dr. Prichard's work, on the Different Forms of Insanity in re-
lation to Jurisprudence, was published in 1842 ; and, by 1846,
juries had learned to convert the uncontrolled influences of temper
into what he terms Instinctive Insanity."

" As an instance of this class of cases in which the judicial au-
thorities came rightly to a very different conclusion, I will quote to
you the following one, from Sir Woodbine Parish's last work on
Buenos Ay res. Having spoken of a certain wind occasional in that
climate, which in some persons produces peculiar irritability and ill-
humor almost amounting to a disorder of their moral faculties, he
proceeds as follows : ' Some years ago, Juan Antonio Garcia, aged
between thirty-five and forty, was executed for murder at Buenos
Ayres. He was a person of some education, and rather remark-

453

§ 555.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

able for the civility and amenity of his manners ; his countenance
open, his disposition generous. When this vento-norte — this pecu-
liar north wind — set in, he appeared to lose all command over him-
self; and such became his irritability, that during its continuance
he was engaged in continual quarrels and acts of violence. Before
his execution, he admitted that it was the third man he had killed,
besides being engaged in various fights with knives. When he
arose from his bed in the morning, he told Sir Woodbine's informant,
he was always aware at once of its accursed influence upon hitn ; a
dull headache first, and then a feeling of impatience at everything
about him. If he went abroad his headache generally became
worse ; a heavy weight seemed to hang over his temples. He saw
objects as it were through a cloud, and was hardly conscious where
he went. He was fond of play, and if, in such a mood, a gambling
house was in his way, he seldom resisted the temptation. Once
there, a turn of ill luck would so irritate him, that he would proba-
bly insult some one of the bystanders ; if he met with any one
disposed to resent his abuse, they seldom parted without bloodshed.
The relations of Garcia corroborated this account, and added that
no sooner had the cause of excitement passed away, than he would
deplore and endeavor to repair the effects of his infirmity. ' The
medical man,' says Sir Woodbine, ' who gave me this account, at-
tended him in his last moments, and expressed great anxiety to save
his life, under the impression that he was hardly to be accounted a
reasonable being.' ' But,' he adds, ' to have admitted that plea,
would have led to the necessity of confining half the population of
the city when the wind sets in.' I quite agree with the conclusion
which this remark implies, as to the fate of Garcia. He was him-
self aware of the murderous instinct to which he was liable, and of
its exciting causes. Surely, when such knowledge is in the posses-
sion of the delinquent, he must be made responsible for the non-
avoidance of exciting causes."^

§ 655. It is further insisted, as a question of fact, that in the
Analysis by so-calied cases of moral insanity, mental unsoundness can
^^^y- almost in every instance be shown to exist by positive

proof. This is illustrated by an " analysis of fifty -two cases of
insanity marked by a disposition to homicide," furnished to the

' Mayo on Medical Testimony in Lunacy, 58, 59, 60, 61, 62.

454

GENERAL MORAL INSANITY. [§ 555.

American Journal of Insanity, for October, 1857, by Dr. J. P.
Gray.^ From this the following summary is extracted : —

" Sex. — Of those who committed the act, nineteen were males
and five females ; of those who made unsuccessful attempts, twenty
were males and five females.

" HahiU. — Of the entire number (fifty-two) twenty-three were
intemperate, or vicious, bad men, and twenty-nine were of unex-
ceptionable character and habits.

" Hereditary Predisposition. — In twenty-one of the fifty-two
cases there existed a marked hereditary predisposition, in nine no
such predisposition existed, and in twenty-two no facts touching
this point were ascertained.

" Mental Disease. — The form of mental disease was acute mania
in fourteen cases, subacute mania in three, paroxysmal mania in
two, chronic mania in four, dementia in twenty-four, melancholia in
four, mania-a-potu in one. Four of the cases of mania and one of
dementia were accompanied by epilepsy.

" Time. — Twenty-two of the twenty-four homicides were com-
mitted in the daytime, the remaining two in the early part of the
evening. Of the twenty-five attempts, twenty-one were made in the
daytime, two in the night, and two both in the day and night.

" Object of Attack. — A father was the victim in one case, a
brother-in-law in one, a husband in one, wives in four, children in
ten, a cousin in one, neighbors in four, neighbors' children in three,
and entire strangers in seven cases. In nearly the same propor-
tion the immediate relations of the patients were the objects of
attack in those cases in which the attempt was unsuccessful.

" Suicidal Disposition. — In ten of the fifty-two cases a suicidal
tendency accompanied the disposition to homicide.

" Commitment to Asylum. — Of the twenty -four homicides, eleven
were acquitted by the courts before which they were arraigned,
on ground of insanity, and ordered to the asylum ; one was found
guilty, but sentence was suspended ; four were sent here on pre-
liminary trial, six without any criminal proceedings ; and two were
placed in the asylum by their friends.

" Results. — Of the twenty-four patients who committed homicide,
seven recovered, eleven are unimproved, two eloped, and four have

' See a similar article by the same author in 32 Am. Journ. Ins., pp. 1, 153.

455

§ 556.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

died. Of the twenty-five patients who were prevented from carry-
ing their homicidal purpose into execution, eight recovered, thirteen
are unimproved, and four have died.

" Arranging these cases under Dr. Bucknill's very convenient
modified classification of Esquirol, we have the following result: —

" 1. ' Those wherein the crime has been occasioned by delusion,
and no reasonable person can doubt or object to the irresponsibility
of the offender.' In this class we have thirty -four of the fifty-two
cases.

" 2. ' Wherein the offender, though suifering from cerebro-mental
disease, has committed the crime under the influence of some motive
not of a delusive character.' In this class we have seven of the
fifty-two cases.

"3. "Where with general symptoms of cerebro-mental disease
neither delusion nor motive for the crime is discernible.' In this
class we have eleven of the fifty-two cases."

§ 556. Griesinger's eminence as an expert in this branch of
science, no one can question. We may not fully accept
by Grie- the statement of Dr. Robertson and Dr. Rutherford, his
singer. English translators,^ that " he is essentially the repre-

sentative and the acknowledged leader of the modern German
medical thought," for this, so far as the question of primacy goes,
may be contested ; but we cannot contest the position, that, as a
careful and philosophic observer of mental phenomena, no modern
authority surpasses him, either as to philosophic conception or
sober accuracy of induction. On the subject before us, he thus
speaks: " Before concluding the consideration of this subject it
may be well to say a few words regarding the so-called .mania sine
delirio, a pathological variety established by Pinel, we may say, to
the detriment of science ; for so true and so serviceable was the
remark which Pinel deduced from his observations, that the violent
actions in mania are not always founded upon perversion of the
i(jeas — we are of opinion now-a-days that originally this is alto-
gether not the case — so confusing was it to give the same designation
to two different morbid mental states ; namely, on the one hand, to
actual periodic attacks of fury with very little delirium, and, on the
other hand, and principally, to those moderate states of mental ex-

' Sydenham ed., 1867.

456

GENERAL MORAL INSANITY. [§ 556.

altation referred to in the former paragraph, in which the patients
perform foolish actions and show perversity of demeanor, but are
also in a position to justify and to explain their conduct by a course
of coherent reasoning which still lies within the bounds of possi-
bility, i. e.,folie raisonnante. The disciples of Pinel have even
ranged other states under the same title ; for example, that con-
dition which we have described as a moderate degree of melan-
cholia with violence, and, more than this, even outbreaks of
violence in consequence of hitherto concealed fixed ideas : for the
latter there is not even the appearance of reason.

" If we consider more closely to which maniacal states the desig-
nation mania sine delirio can be applied, we recognize the funda-
mental fact that in no single case of mania is the conscious thought,
the intelligence, perfectly free from any disorder.

" Even in the very slightest degrees of mania the intelligence
participates in the general exaltation, though it be only to the
extent of increased liveliness and rapidity of thought ; generally,
however, there is incoherence.

" In all attacks of fury, clear, calm, hearty thought is quite
impossible. It is true that maniacs can occasionally, by means of
exhortation, be brought for a short time to their senses, and be
enabled to give correct answers ; but this only shows, as Jessen
remarked, the possibility of temporary remissions and intermis-
sions; 'the patient is not delirious when he speaks sensibly, and he
does not speak sensibly in those moments in which he is delirious.'
Neither can we speak of the absence of delirium in those cases,
which we have described, where there is a morbid impulse to
commit acts of violence. Then those murderous ideas which are
not at all in accordance with external moral causes, but awakened
by a morbid disposition, are already in themselves delirious ideas,
just as in furious mania and in all violent emotion — for example,
rage — there arise new ideas, opinions, and conclusions, correspond-
ing to the morbid disposition.

" Those states in which there is least confusion of ideas and
delirious perceptions, in which there is the greatest amount of
logical coherence in thought, are the slight states of exaltation
which we have described in the foregoing paragraph, which, how-
ever, are generally merely the forerunners of the commencement of
violent mania. For these, for folie raisonnante^ we might, as

457

§ 557.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

Pinel in part did, use the name mania sine delirio ; but, as in
concrete cases it is of little practical advantage to range cases under
consideration under certain names, but of far more to obtain a
psychological appreciation of the fundamental morbid psychical
state, the circumstances which have caused its development and its
consequences, it is, at all events, more advisable to allow those
obscure names which provoke the curiosity of lawyers and other
laymen to fall completely into disuse."^

§ 557. " Truly unfortunate has it been for our professional
ByMc- speciality," remarks an experienced American psychoio-
Farland. gical physician. Dr. McFarland, " that the term ' moral
insanity' has ever had mention. The phrase itself is a luckless in-
vention, not only liable to an infinitude of misconception, but con-
veying ideas calculated wholly to mislead. It is as if there was
some separate kind of insanity, located in some ' terra incognita'
which no man has yet discovered, wholly independent of the brain
or any of its functions or operations. What is its seat or what are
the organs of its abode or production, are questions which those
who employ the term are themselves puzzled to answer.

" It does not seem to be considered by those who give currency
to the expression that its whole idea implies another centre of
sensations, emotions, or passions, than their great legitimate one,
the brain. In the first place, it may seriously be questioned whether
such a case as is usually described to set forth the idea, is ever actu-
ally seen. Experience brings before the mind a multitude of cases,
not actually realizing the full idea, but which are close approxima-
tions to it. Now it is this close resemblance between cases which
do exist and a certain ideal of disease borne in the imagination
which leads us astray. The small difference which does exist be-
tween the case which every one has in hand and the ideal one, is
always enough to destroy the value of the instance. It has always
seemed as if all that is included in the idea of moral insanity might
be better disposed of by a closer reference to phenomena of insanity
which are of every-day occurrence. Every one realizes how few
of the delusions of the insane mind are ever revealed, and how
readily they are revealed under one set of circumstances and con-
cealed under others. All insane asylums abound in cases of un-

' Griesinger on Mental Diseases. Syden. ed. (1867), § 140.

458

GENERAL MORAL INSANITY. [§ 558.

questionable mental disease, where its palpable manifestations are
so slight that the unskilled observer would doubt its existence. A
certain suspicious reserve, a mysterious shyness of manner, some
haughtiness of bearing, or something marked and singular in gait,
or tone of voice, some strange attachment to a particular seat, or
special stress applied to the doing of some trivial act, may be all
that distino-uishes the individual from other men. Yet one guided
by experience has no hesitation in declaring such cases to be in-
stances of latent delusion ; and is prepared for the sudden exhibi-
tion of extreme or violent acts of which any of these almost unob-
served antecedent peculiarities furnishes the explanatory key. In
such cases, the extent of the disease is not at all measured by what
appears on the surface.

" The delusion which has possession of the mind may even have
no outward form of manifestation whatever, that can be detected,
and yet may give rise to all those singular, inexplicable, and per-
haps violent acts, which a failure to explain by any anterior indica-
tions of delusion has styled moral insanity. It is very easy espe-
cially with those much conversant with the insane, to conceive a
case possessing all the attributes assigned to the form of disease
here called in question ; but before admitting any such case as an
existing fact, the possibility of a latent delusion underlying its char-
acteristic perversities of conduct should be deeply considered."^

§ 558. Dr. Jules Falret, in an able paper read by him at a meet-
ing of the Soci^t^ Medico-Psychologique, in January, gyj^^gg
1866, argued with great fulness and power to the same Falret.
eflfect.2

From this paper we make the following extracts : —

" I shall only say that, for my part, I firmly believe, theoretically
and practically, in the perfect unity of action of the various mental
faculties, both in the sane and the insane. In reasoning or moral
insanity clinical observation proves, in my opinion, that there may
be a great excess of disorder in the moral and instinctive faculties,
but that it is never entirely absent from the intelligence. Psycholo-
gists do not admit, in the healthy mind, the distinct existence of the
several faculties, except as a convenience of study. These faculties

' American Journal of Insanity, ^ gee translation in 23 Amer. Journ.
April, 1863. of Insanity, 406.

459

§ 559.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

are then, in reality, only different modes of action of one indivisible
mind. They can no more act separately in a state of health than
they can be affected separately by disease. Several faculties always
co-operate for the production of each one of our mental acts ; and
thus every one of these is a product of the simultaneous action of
more than one of the primitive powers of the mind. So in disease,
there may and often does exist a predominant lesion of a single
faculty, but there is never an affection of one alone, the others be-
ing left entirely untouched.

" In Germany, the medical alienists of the first part of the cen-
tury, such as Reil, Heinroth, Hoffbauer, etc., also sustained the
reality of an insanity without delirium ; but in 1822, Henke, the
celebrated founder of the Journal of Legal Medicine, which is con-
tinued to the present time, began to question this prevalent doctrine.
Since that period the contest among German physicians upon this
capital question has been very animated ; but, little by little, the
opinion first maintained by Henke has finally triumphed, and it is
to-day the dominant one in Germany,

" Professor Griesinger, in his Treatise on Mental Diseases, asserts,
in effect, very distinctly, that there is no such thing as insanity
without lesion of the understanding. He even goes so far as to say
(p. 355), that the creation of manie sans delire, by Pinel, was a
misfortune for science.

§ 559. " In France, in 1810, my father, in his thesis, commenced
the reaction against the opinion of Pinel, by denying, absolutely,
the existence of manie sans delii^e. Since then. Marc, Georget, and
most of the disciples of Pinel, have sustained the doctrine of their
masters, and the possibility of the separate lesion of the intellec-
tual and instinctive faculties in insanity is yet generally admitted
among us. Nevertheless, many medical alienists have begun to
abandon this extreme position, and, for my part, I am convinced
that the more rigorous and complete study of the facts noAv brought
arbitrarily together under the name o?folie sans delire will lead all
conscientious observers to admit the correctness of that doctrine
which is to me a demonstrated truth, namely, that there does not
exist in mental disease an isolated lesion of the feelings, or of the
instincts ; in other words, that there is no such thing Qisfolie sans

delire.'^

460

GENERAL MORAL INSANITY. [§ 563,

§ 560. " It is very questionable," says one of the most eminent
and experienced of American alienists, Dr. Joseph Work- ^y
man,i " whether more injury than benefit has not been Workman,
rendered to the interests of justice and humanity by the earnestness
with which the moral insanity section have urged their views ; or,
perhaps, more correctly speaking, by the confusion which they have
introduced into a subject requiring to be investigated with rigid
philosophic exactitude."^

§ 561. It is also proper to mention that the theory of moral
insanity, as such, was emphatically repudiated by the ^- ^ a

great body of the members of the Association of Medical by Associa-
Superintendents for the Insane, at the meeting in Wash- superintend
ington on April 20th, 1866, reported in the American th^insane.
Journal of Insanity of that year.^

§ 562. Dr. Liman's edition (1871) of Casper's Medical Juris-
prudence is the highest contemporaneous medico-juridi- g^ j^y
cal authority in Prussia, if not throughout all Germany. Liman.
In this work he repeatedly denounces the theory of an insanity
exclusively moral as absurd, as repugnant to all sane psychology,
as utterly without any inductive basis of fact, and as destructive of
sound penal jurisprudence. To the same effect, he reports a series
of decisions of governmental experts, being the most eminent men
in their profession in the German states.

§ 563. Dr. A. F. Berner, Professor of Jurisprudence in the
University of Berlin, may be viewed as one of the most
accurate and authoritative of German jurists in this de- law op-
partment. In the fifth edition of his Lehrhuch des doctrine of
Deutschen Strafrechts, published in Leipzig, in 1871, he jn'^nitv "
states the German law on this subject with great posi-
tiveness, and this is reaffirmed in 1877. "To constitute responsi-
bility," he says,* " that is to say, penal accountability, it is neces-
sary that there should exist, (1) consciousness of self ; (2) con-
sciousness of the exterior world ; and (3) a developed consciousness
of duty. In these incidents of intelligence inner freedom is in-
volved ; this freedom is not, therefore, to be proved independently

* 19 Am. Journ. of Ins. 406. ' See also remarks of Dr. Chipley,

* S. P. Review, by Dr. And. McFar- supra, § 175, note (o').
land, ibid. 462, < § 77.

461

§ 564.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

as a substantive essential of responsibility. A lunacy of the will
(and thus a derangement of freedom) as coexisting with underanged
intellect (inania sine delirio) is impossible."

§ 564. Dr. Krafft-Ebing, a German psychological physician of
j^ ^ high eminence both for psychological acuteness and for

EbiDg's great practical experience, was for years physician to
moral the asylum at Illenau, in Baden, one of the largest

insanity. ^^^ most admirable in Europe. In an essay in Fried-
reich's Blatter for September, 1871, this eminent writer distin-
guishes " moral insanity" from sane criminality, by the fact that
the illegal act in the former is involuntary, springing from cerebral
disease, while in the latter it is voluntary, the reason remaining
unimpaired. " We have learned from experience," so he declares,
" that immorality, ethical depravation, and criminal proclivities,
may spring from physical as well as from moral grounds." " If
Ave can perceive general signs of cerebral disease, and trace to this
disease the distinguishing psychical symptoms, then we make out
the distinction between a voluntary surrender to immoral inclina-
tions, and an immoral criminal life, on the one side, and, on the
other side, a state that is only apparently voluntary, but is really
conditioned on organic causes." As tests of this cerebral disease,
he gives the following : —

1. Either a diseased cerebral organization is congenital, or a
serious cerebral disease is shown to have subsequently attacked the
patient and produced change of character. In the former case the
condition is one of moral idiocy. The latter is technically that of
" moral insanity." The former is traceable to hereditary causes,
to epilepsy, derangement, drunkenness in the parent. When the
" moral" symptoms result from cerebral injury, they are apt to
betray their progressive character in the prodromal stages of de-
rangement— melancholy, incipient paralysis, hysterical and epilepti-
cal attacks. The close connection between the physical and the
moral in this respect is shown by the fact that a diseased perversion
of the moral feelings often follows attacks of mania, of epilepsy, of
apoplexy, of meningitis, and of cerebral disease induced by
mechanical injuries and by alcoholic excesses. In women, ob-
stetrical causes operate in the same way.

2. In most cases there exist in the sphere of the nervous sys-
tem other functional disturbances as well as ph^^sical deformities.

462

GENERAL MORAL INSANITY. [§ 564.

Among the latter may be noticed malformations of the skull,
imperfections of the senses, deformities in the extremities {e. g. club-
feet), strabismus, obstructions of the sexual organs.

3. Cerebral diseases, resulting from the peculiar cerebral organi-
zation above stated, are more common than with individuals normally
constituted.

4. There is a peculiar tendency to congestion of the brain, and
with this are coupled capricious and motiveless changes of disposi-
tion, morbid fixed prejudices, excessive irritability, and vehement
transient passions.

5. There is a perceptible contraction of the scope of the intel-
lectual renditions, approaching to actual imbecility, though this is
less prominent from the conspicuousness of the moral deficiency in
such patients, and their instinctive cunning and viciousness.

6. With these symptoms coexist anomalies of the natural pas-
sions, especially of the sexual instinct, which is developed in morbid
precocity, and strikes out in directions which are perverse and for-
eign to natural life.

7. The organic basis of the disease {which is only superficially of
an exclusively ethical character^ exhibits itself in features which
are progressive and entirely independent of outward circumstances ;
and in this form, certain immoral instincts, such as those for drink,
stealing, and vagabondage, start to light sometimes with marked
periodicity.

Hence, to constitute " moral insanity," it is necessary, according
to this accomplished observer, that it should be the result of ascer-
tainable cerebral disease. So far from the mind being sane, in
this state, he emphatically argues that the contrary is the case.
Insane ideas and delusions of the senses, it is true, may not exist ;
but he declares that it is impossible in the face of an exact clinical
analysis, to maintain that the intellectual processes run an undis-
turbed course. In spite of the cunning and energy, he declares,
with which such patients seek to carry out their abnormal instincts,
they are " intellectually weak, unproductive, incapable of practical
business or orderly activity, are marked by defective capacity for
education, are one-sided and twisted in their mental action, and of
very contracted judgment. In no case marked by this obtrusive
moral debility, is there wanting some intellectual defect ; and most
patients of this class are intellectual imbeciles." " It is worthy of

463

§ 565.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

notice," he continues, that in this disease " there is a peculiar dis-
order of the perceptive faculties, namely, in the process of repro-
duction, so that the reproduced representation is never identical
with the original perception, though the patient holds it to be such.
Hence, he appears ethically a liar, and exhibits his supposed ex-
periences in an entirely distorted shape. . . Here it is that an
abstract, a formal, intellectual knowledge of right and wrong, with-
out ethical capacity for the same, intervenes. . . In persons of
this class occur further formal disturbances of the perceptions —
divergent processes of ideas, unique associations of ideas, peculiar
fixed fancies, conceptions emanating from abnormal passions. That
which in such persons stands out in marked peculiarity, and which
can be traced only to intellectual defect, is their incapacity to distin-
guish not merely what is immoral, but that which is positively and
unnaturally perverted, and the injury wrought by their own acts to
themselves, coupled with their neglect, in their crimes, of the ordi-
nary rules of prudence, and a want (notwithstanding many marks
of mental subtlety) of every quality of self-control and self-gui-
dance."

§ 565. It has been said that the rejection of " moral insanity,"

mania sine delirio, instinctive mania, etc., has led to the
Convicts ' .

only rarely conviction of a number of persons who are really insane
and irresponsible, but who, on the narrow tests adopted
by the courts, are pronounced sane. This assertion, however, is
unsupported by fact. In Prussia, " moral insanity," mania sine
delirio, and instinctive mania, are repudiated not only by the courts,
but by the eminent physicians who act as authorized medical ex-
perts. An examination of the reported cases down to 1872 will
show that the tests applied emphatically exclude " insanity exclu-
sively moral," and "irresistible impulse," from the category of
legitimate defence. Now how is it with the persons so convicted?
Have they, in any number, proved to be insane? The Berlin
Criminal-Gefangniss records, between 1841 and 1870 (30 years),
189,167 prisoners. Among these only 148 are reported as insane.
"In a great criminal prison," says Dr. Liman, commenting on this
return, " which serves as the sewer of the Proletariat of a great
city, and which receives very many old and previously convicted
criminals, there is, therefore, on an average, only from three to five
lunatics to ten thousand prisoners ; and among all the reported sick-
464

GENERAL MORAL INSANITY. [§ 566.

nesses, from the slightest rheumatism upwards, were only three-
tenths out of a hundred insane. This, so far from being an un-
favorable proportion, is surprisingly favorable. We have here a
proportion of lunatics to our population of criminals that does not
materially differ from the proportion to the entire population. It
is true the Stadtvoigtei (the prison referred to) is a prison of ordi-
nary detention, and for convicts is not often permanently assigned.
But even in the prisons with solitary confinement, so far as, in and
out of Germany, I have obtained information of these institutions,
I have found no marked increase of this proportion ; and so far as
concerns our great prison of this class, I can say distinctly that
from its opening to the present day, a disproportionate number of
lunatics has never been observed there, though it is a prison assigned
only to those guilty of the more atrocious crimes."

§ 566. It is true that we have, as disputing these conclusions,
two publications (1870), by Dr. J. Thomson, physician to the
Scotch Central Penitentiary.^ It is maintained by Dr. Thomson
that the statistics of prisons show that crime is sometimes here-
ditary ; that it descends coincidently with physical defects ; that
there is such a thing as an irreclaimable criminal class, and that in
this class crime is largely mixed with insanity. He argues that in
this class the moral sense is absolutely wanting ; and as proof he
cites (1) the frequent relapses of professional law-breakers ; (2) the
tendency of such persons to commit crimes when in prison ; (3) their
apparent incapacity for remorse, exhibited by their quiet sleep and
their moral apathy, and (4) their inaccessibility to educational and
reformatory influences. Their proclivity to insanity he seeks to
show by their disposition to cerebral disorders ; and he asserts that
in the Scotch prisons the percentage of insanity is three times
greater than obtains in the population at large. But the replies
to this are obvious. As to percentage of insanity, the results are
in conflict with those of the German statistics, which cover a far
wider sphere, and are based on observations much more exact; and
even if we take Dr. Thomson's returns as exhaustive, we must re-
member that unbridled passions have of themselves a tendency to
produce insanity, and that this is an additional reason Avhy passion,
by education and penal discipline, should be placed under re-

■ Journal of Mental Science, Jan. and Oct. 1870.

VOL. I. — 30 465

§ 566.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

straint.^ Nor should it be forgotten that among moral agents the
power to do right implies the power to do wrong ; that each suc-
cessive indulgence of guilty passion makes the temptation to future
indulgences stronger, and the restraints less ; that the knowledge
that character is lost by public conviction and disgrace removes one
of the most important of such restraints. These considerations,
therefore, instead of prompting to sentimentalize crime by treating
it as a mere disease, should lead us to take even more stringent
measures to prevent its commission. In other words, the very
circumstance that crime generates crime, if not insanity, is an
additional argument for penal laws which, while humane, shall be
widely published and firmly executed.

To the charge of cruelty it may be well replied (1) that a lax
view of crime, at a period when the character is forming, is apt to
lead to those first and incipient offences, which, if the view here
contested be correct, generate a sequence of other offences, each
surpassing its predecessor in facility and obduracy ; (2) that the
alternative proposed by Dr. Thomson, of the indefinite incarcera-
tion of such offenders " during puberty ,"2 is at least as inhuman as
the corrective and limited imprisonments that a due administration
of justice awards ; and (3) that if there be any cruelty in penal
jurisprudence that is peculiarly reprehensible, it is that which
treats any class of offenders as absolutely irreclaimable. Nor is
this latter assumption founded on fact. Of course it is a well-
known moral law, as has just been stated, that each repetition of
crime makes reform more difiicult. But the reports of the American
prison discipline societies show that in proper conditions, where the
convict, on discharge, is aided in his efforts to move into a new sphere
where the disgrace of his convictions will not drag him down, re-
forms have been frequent. ^

' See supra, §§ 115, 188, 403. dora which were formerly quite un-

2 See supra, § 187. known. . . Suppose they all know

' " Madmen," says Mr. Stephen, in that anyone of them might murder,

liis authoritative work on English ravish, or mutilate any other without

Criminal Law,'* "in the present day, the fear of pxmishment, the result

are treated with a degree of humanity would be that their liberty would have

and intriisted with an amount of free- to be greatly restrained, and that they

' London, 1863, p. 96. See, also, articles by eminent physicians in this de-
partment in the North American Review for January, 1882.

466

SPECIAL MORAL MONOMANIAS. [§ 569.

II. SPECIAL " MORAL MONOMANIAS."

1 . At present repudiated.

§ 567. "Moral insanity," as has just been seen, rests on the
general assumption that the moral and the mental func- Doctrine of
tions occupy separate and detached compartments, so ^^^^f'
that one can be insane without in any way affecting monoma-

rr\i T ■ c • 1 1 nias as-

the other. Ihe doctrine ot special "moral monoma- sumes a
nias" assumes a still further subdivision. Each partic- of "moral
ular moral instinct has its own subchamber, in which insanity."
it dwells in like seclusion, so that insanity on its part not only does
not affect the mental properties, but is not necessarily communi-
cated to its own fellow instincts and affections. A man may thus
have an insane and irresistible propensity to kill or to steal, for
which he is irresponsible, though not merely his mind as a whole,
but his remaining moral functions are sane,

§ 568. We have already noticed the conclusive psychological
objections which apply to the "compartment" theory,
so far as it assumes that the moral system can become trine dis-
insane while the mental is sane, and we have shown that former
the great weight of present medico-psychological autho- reasoning,
rity is against this assumption. Of course, all reasoning against
the general separation of "moral and mental" insanity applies a
fortiori to the assumption that each particular "moral mania"
dwells in non-contagious isolation in its own particular cell. One
or two authorities, however, bearing on this particular point may
now be added : —

§ 569. Ideler, a very eminent and experienced psychological
physician,^ thus emphatically speaks: "How can we j.^^-..
pretend to separate the orbit of particular fixed ideas authorities,
(or monomanias) from the entire sphere of mental action
in such a way as to decide whether the origin of an unlawful pur-
pose is within or without such orbit ? Practically it is impossible
for us to separate the diseased from the healthy portions of the

would have to be treated on the foot- law, but of animals, to be governed by
ing, not of moral agents to be governed by force.''''

■ Lehrbuch, p. 2.')4.

467

§ 572.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

mind, so that the diseased portion should be punished, and the
healthy declared irresponsible."

§ 570. Dr. Krafft-Ebing, whose eminence as an observer has
Krafft- ^6®^ noticed, in Holtzendorff's Encyclopedia (1871), a

Ebing. work of the highest juridical authority, under the title

Wahnsinn^ speaks as follows : " As part symptoms of general
psychical disease, we may undoubtedly class morbid impulses to
kill, steal, etc. These have been erroneously called monomanias,
and the general condition of disease has been by this process ig-
nored. Tlie doctrine of monomania is to-day rightly abandoned.
It is based on the erroneous assumption that the jjsychical f amities
are separate from each other, and capable of isolated action^^

§ 571. To the same conclusions Casper, Griesinger, and Liman,
in the works already quoted, add their high authority.
Griesinger, Indeed, as has been incidentally shown, and will pre-
sently be seen more fully, the doctrine of " moral mono-
mania" is now left with scarcely a single authoritative adherent
either in Germany, England, or France. , •

2. Psychological absurdity of classification.

§ 572. In addition to the general objections already adduced to
the doctrine of exclusively moral insanity, we may here

Analysis . '' j ^ xi ^

should be naturally notice, when we are asked to enter on a still

subjective '.,... , ,. ., ,

and not ob- Hiore mmute division, how extraordinarily vague and
jective. fluctuating is the analysis which this new process involves.
In the first place it takes, as the basis of analysis, not the sub-
ject, which is the individual man, but the objects, e. g., houses to be
burned, goods to be stolen, other men to be killed, to which the in-

' See infra, § 608. moral idiocy, and lie enumerates, as

2 It is true that this distinguished its positive features, '' comparative im-

observer afterwards speaks of the ex- hecility, with an entire absence of all

istence of a state which he thinks pro- moral and judicial feelings, a complete

per to call the "English moral in- depravation of character with criminal

sanity;" but it will be seen at once immoral impulses and activities, which

that the "moral insanity" he thus can easily be confounded with immo-

recognizes is very far from being the rality, from which, however, they are dis-

mania sine delirio of Pinel, or the in- tinguished hij their causes, their mode of

sanity of irresistible impulse of later growth, their progressive course, and the

writers. For he gives, as its German periodicity of certain symptoms.''''
rendering, " Sittlicher Blodsinn," or

468

SPECIAL MORAL MONOMANIAS. [§ 573.

dividual man, in this relation, may address himself. It is as if,
when we were analyzing steam, we should speak of it under one
name, and as possessing distinct properties, when it propels a boat,
and under another name, and possessing other properties, when it
propels a locomotive. If such a course should be taken, we would
no doubt have a hundred different kinds of steam to talk about, and
the dissimilarity of these various distinct powers might be the sub-
jects of much subtle discrimination. But such a discussion would
mislead us from the true issue. It would divert us from analyzing
the properties of steam itself, which are invariable, no matter what
may be the objects to which it may be turned, to investigating what
are its special accidents, and to investing these accidents with a false
autonomy. So it has been with the doctrine of moral monomania.
The subject of the monomania is the monomaniac himself. "Is he
insane ?" This is a question for psychological and medical investi-
gation. The object, the end to which this alleged insanity directs
itself, is a matter for exclusively legal examination. " Did he do
this thing ?" " If so, supposing him to be sane, what is the pun-
ishment ?" To decide this is the exclusive function of the courts of
law.

§ 573. We have a right, also, to ask, when the " compartment"
theory of monomanias is proposed to us, that the com- ciassiflca-
partments in which these distinct functions dwell in such tionofthe

• ^ L- L^^ L ^ • • ^ ■ '' Dioral in-

isolation that one may be insane without m any way sanity"
affecting the others — that these compartments should be n^t°harmo-
proved to be stable, fixed, and permanent. Instead of ^^ious.
this, we find that they vary according to the views of each theorist.
Pinel began by having a single insane chamber, and in this chamber,
so well guarded that the inmates could not escape to disturb the
" mind," dwelt what he called " mayiia sine delirioy Esquirol, im-
proving on his master, declared that there exists, in like isolation,
a " mayiie instinctive,^^ which, issuing from its own separate apart-
ment, can go forth, commit depredations on the outside world, and
then furtively return, without in the least degree disturbing the
equanimity, awakening the repugnance, or even exciting the atten-
tion of the mind's other inmates, which go on in their normal
work with clearness and logical cohesion, not even taking notice of
the extraordinary neighbor who is dwelling under their common
roof. But French passion for classification could not be content

469

§ 573.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

■with this. It was soon argued that every wrong that can be per-
petrated must have its own particular wrong-doer, and that this
wrong-doer should have his particular exclusive and detached abode.
It was at first thought that it be enough if there were separate
apartments of this kind for certain general criminal propensities ;
and these were introduced to us under the titles of Kleptomania,
Homicidal mania, Aidoiomania, Pjromania, etc. But it was soon
found that this classification was not adequate. If each criminal act
requires a distinct particular propensity, or " manie instinctive,''''
and if each of these propensities is to be a separate factor, capable
of executing its work without either implicating the mind as a whole,
or even disturbing its fellow propensities, then the old theory of
cerebral architecture must be declared imperfect, and we must be
informed of a new plan, containing a largely increased number of
separate chambers in which these insane factors (instincts mala-
difs) may abide in the requisite isolation. This was accordingly
done, and as new crimes started up, new " monomanias" were recog-
nized and duly assigned to separate abodes. Thus the Marquise de
Brinvilliers, feeling an irresistible instinct to poison, and yet being
admitted to be entirely sane, gave rise to a new " manie instinctive,"
called Toxicomanie, and which was announced to coexist not only
with mental sanity, but with morality and amiability in everything
except poisoning.

About the time when among French alienists the fashion of setting
apart new varieties of monomanias was at the highest, arose the
Piqueurs, who ranged the streets of Paris, cutting the clothes of
women and inflicting other injuries ; and forthwith this epidemic
mischief was declared a " monomania." The " Piqueurs" were
imitated by the " Msedchenschanders" of Augsburg, who, in 1820
and afterwards, infested the streets of that town, and would rush
out from their lurking places, inflict a slight stab on young girls
with some sharp instrument, and then retreat.^ There is reason to
believe that the chief ofibuder in the latter performances was really
insane ; and such certainly was the case with the perpetrator of analo-
gous outrages which some years since were committed in New York.^

' See infra, § 621. York, in October, 1849. He was shown

2 The case referred to is that of a to have left his house immediately

young man, named Charles H. Sprague, after breakfast to go to his business,

who was tried in Kings County, New whidli was that of a printer ; to have

470

SPECIAL MORAL MONOMANIAS.

[§ 573.

This can hardly, however, be said of the " Zopfabschneiders" of
1858, Avho, in some of the towns of South Germany, amused them-

overtaken a young lady, to have thrown
her down, to have snatched a shoe
from one of her feet, and to have run
away. She wore a chain and locket
and other jewelry in sight ; but he did
not attempt to take anything except
the shoe, nor to do violence to her per-
son in any way. He then proceeded
round a square, and on his way called
at his wife's father's, and asked if his
father was in town, a matter as to
which he was perfectly well informed.
He then left the house, came directly
back to the very spot where he had
just taken the shoe, and continued on,
without stopping, to his place of busi-
ness. He was tried for highway rob-
bery, and on trial the defence of in-
sanity was set lip. "The principal
witness was the defendant's father, a
clergyman of the highest respectability,
whose testimony was coi-roborated in
every particular by several other wit-
nesses ; indeed, by all the court thought
it worth while to have brought for-
ward. Charles Sprague^s paternal great-
grandfather, grandmother, great-uncle, and
three great-aunts — being four out of a
family of six — and a cousin, are or have
been insane. He had himself in youth re-
ceived several severe blows and falls upon
the head, and within a year from the last
fall he began to suffer headache, and his
friends observed an unnatural prominence
of the eye, with varying dulness and glassi-
ness of these organs. Simultaneously
with this, Sprague began to exhibit a
propensity to abstract and conceal the
shoes of the female members of his
family. In the majority of instances
one shoe only was missed, and it was
usually found about the house, having
been thoroughly soaked with water,
twisted up like a rope, and then hid
away between a feather and straw bed,

or in the depths of a trunk, or hung
up in a closet with garments conceal-
ing it.

" Suspicion at first rested upon the
servants, but the real agent, being de-
tected and questioned, remained silent,
and on subsequent explanations gene-
rally denied the possibility of his
agency until within the last six years.
During this period, when remonstrated
with on his singular habit, he would
admit that he must have taken the
shoe, though he had no recollection of
it, and did not know for what he
wanted it. The intermissions in this
practice have at no time exceeded
three or four months at one time.

" After the practice became estab-
lished, Sprague's mother and sisters,
and the female servants, habitually
locked up their shoes ; yet occasionally
one was missed and discovered twisted
and crumpled after being wet. It was
rumored at one time in the family that
Sprague had attempted to remove the
shoe from the foot of a domestic, and
his sister once alarmed her father at
night on finding him abstracting her
shoes from a locked drawer. In the
early part of the year of the trial, two
females, one residing in Brooklyn, had
a shoe or shoes taken from their feet
while walking in the street in the even-
ing, but the off"ender has never been
certainly known." — (1 Beck, Med.
Jur., ed. of 1860, p. 732.) There was
no monomania about this case. It
was general insanity manifesting itself,
among other ways, in this particular
caprice. And the only proper disci-
pline for such case, if general insanity
existed, was that compulsory seclusion
from society which general insanity
requires.

471

§ 574.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

selves by darting out in the dark on women who wore the long
tresses of hair then in fashion, and cutting off and pocketing these
tresses. These propensities were epidemic, and were declared by
the perpetrators to be beyond repression when the fancy came on.
It was soon, it is true, found that a little cudgelling caused the
" propensity" to subside. It did not subside, however, until it had
for a while been enfranchised as a " monomania," to the great dis-
turbance of public decency and public peace.

§ 574. The disinclination felt by intelligent but depraved French-

-r. „ , „ women to rear children — the " instinct" which leads
Defects of

ciassiflca- them to destroy such children, has, even by so acute a
physician as Boileau de Castelnau,^ been set apart, under
the title of Misopedie, as a distinct mania, capable, like other manias,
of doing its work without implicating or embarrassing the mother
herself, who is only an innocent victim of this mania, being in all
other respects " amiable" and " sane." Nor does the process stop
here. If the theory be right, there must be a constant readjust-
ment of the cerebral system, so as to let in new duly authenticated
and verified " monomanias." But if such readjustment be absurd,
then the theory falls.

So the same destructive argument may be drawn from the
inexhaustive capriciousness of the classifications which have been
given by philosophers of this school. If we are to have a classifi-
cation at all, we have a right to demand that it should be complete.
Nor, we may well add, if each passion is to have an exclusive
compartment to itself, in which it may become insane without affect-
ing its neighbors, can we conceive why such an accommodation is
refused to gluttony. Gluttony is as wide spread and eager a
passion as are any of those which had been elevated to the rank of
monomanias. The history of all nations, the rudest as well as the
most cultivated, records its prowess. The African kings, described
to us by Speke, who gorged to such an extent that they finally
became too gross to move, are not more conspicuous illustrations of
the powers of gluttony than was Cambac^res, who spent half his life
at the dinner table, and made the dinner table the supreme end of
the state. Domitian, when Rome was needing the full wisdom and

• Annales medico-psychologiques, 1861, vii. p. 553.

472

SPECIAL MORAL MONOMANIAS. [§ 575.

energy of her sons, convoked the senate to determine how a turbot
was to be cooked : —

" But when was joy unmixed ? no pot is found

Capacious of the turbot's ample round :

In this distress he calls the chiefs of state,

At once the objects of his scorn and hate" —
" The Emperor now the important question put,

How say ye, Fathers, shall the fish be cut ?"

Charles V. was in most respects a great contrast to Domitian.
He was wise, tolerant, laborious, and inured. to hardships when
great public ends were to be achieved. Yet Charles V., in his
retirement, would push aside the couriers who came to him from
his son entreating advice, in order to consult with those who were
to bring delicacies to the table ; and shortened his life because, in
defiance of his physician's advice, he would not shorten his meals.
" A very considerable percentage of the miseries of mankind," says
a late (1871) ingenious writer,' " may be said to spring from this
source alone. Peevishness, ill-humor, domestic breezes, hypo-
chondria, ghost-seeing, melancholy, suicide itself, with many other
evils, may often be traced to the poor digestive sac, when wearied
and insulted by the hard work to which it is condemned." Per-
haps the reason why gluttony has not been spoken of as irresistible,
and assigned to a place among the monomanias, is the varieties it
assumes, and the consequent necessity of further subdivision.
"Dipsomania" may be called a kind of gluttony, and if so would
have to be deposed from its place as a monomania in chief. "With
it, but with separate compartments, would have to be ranked the
passion for opium, and, if recent statements are to be relied on, the
passion for chloroform. Nor could we admit these without assign-
ing distinct phases to passions for distinct articles of food.

§ 575. A still more striking illustration of the inadequateness
of this classification is to be found in its omission, among the
alleged irresistible impulses, of that for gaming. Certainly if
" pyromania," an impulse which at the best is occasional and rare,
is to be recognized as a distinct insanity, requiring a distinct mental
compartment, at least equal distinction should be assigned to the
passion for gaming, a passion far more widely spread, and at least
equally irresistible. Several instances are reported in French his-

• Hargreaves, Blunders of Vice and Folly, p. 24.

473

§ 575.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

tory, of public men who in their early career gave promise of great
political usefulness, who sacrificed everything to this passion, and be-
came ultimately miserable outcasts. Nor is this peculiar to France.
Mr, Fox, as remarkable for strong sense as he was for argumentative
vigor, squandered, early in life, ^£154,000 given him by his father,
on the gaming table, which he did not desert until his life was
nearly spent ; and such was his infatuation, that he gave up whist,
in which his skill made him a winner in the long run, for hazard,
in which he knew that in the long run he must lose. Sir John
Bland and Lord Mountford, as Horace Walpole tell us, dissipated
in gaming their entire estates, aud then committed suicide. The
Marquis of Drogheda "ruined himself over and over again, till he
Avas obliged to live on a small annuity paid quarterly. As soon as
he received his money he lost it at the gaming table, and after-
wards had to live in the greatest privation till quarter-day came
again, when the allowance was dissipated in the same way." " A

certain Captain H , after losing a considerable sum, would walk

up to a mirror, and begin a stormy colloquy with his image. The
substance reminded the shadow of the resolutions he had made ; he
shoAvered doAvn abusive epithets upon himself, and became so ex-
cited that he Avould assume a menacing attitude and appear as if he
Avere about to inflict chastisement upon the unfortunate reflection.
This Avas done in a public saloon, and in the presence of a large
company." " Sometimes the foolery of the gamester rises to a
height which seems to be positively preternatural. There Avas
once a person of the name of Shelton, of some note as a pugilist in
his day, who indulged in betting at pitch and toss to such an extent,
that one day, having lost all his earthly goods, he went on to stake
his very life. He lost : will it be believed that the man cheerfully
proceeded to a lamp-post and hung himself to the projecting bar ?"^
Cases of this character are not rare. Among civilized nations —
putting aside, for the present, barbarous lands in Avhich gaming
often exercises an influence equally potent — Ave may assume that
there are a thousand gambling houses, each with its body of fre-
quenters, numbering from fifty to a hundred. We may take as
favorable illustrations those places of better resort, Avhere strict
police regulations, and social restraint generated by the compara-

' Hargreaves, Blunders ofVice and Folly, London, 1871, p. 47.

474

SPECIAL MORAL MONOMANIAS. [§ 576.

tively high positition of the participants, maintain a superficial
decorum. Yet, even under this mask, no one can visit these tables,
without seeing that the habitual gamesters who frequent them form
a distinct as well as a numerous class of men, far more numerous
than " kleptomaniacs" or " pyromaniacs," and that they are driven
from risk to risk by a frenzy which has at least as high claims to
be considered irresistible as any which modern psychology has
brought to light. They know that gaming in the long run will ruin
them. They feel that the very process is consuming them by its
fires, yet they persevere till ruin comes, and then give themselves
up to the pauper's misery, or the suicide's grave. Why then is not
the morbid passion for gaming announced as a "monomania"?
What is there in it less vehement, less general, less marked, than
the other " monomanias" which have hereafter to be noticed ?

§ 576. If this classification is minute enough to give us " Toxi-
comanie" and " Misopedie," and to embrace " Piqueurs" and
" Msedchenschanders," why does it find no place for gluttony and
gaming ? If it has no place for gluttony and gaming, what right
has it to demand the recognition, as " monomanias," of other pas-
sions, certainly not more abnormal, or more pregnant with what are
called " monomaniac" characteristics ? And if the classification
this theory presents be thus fluctuating and defective, what claims
has the theory to judicial recognition?^

It may, indeed, scarcely need so copious a recapitulation as the
above to show that the theory of special " moral monomanias" is
not only unphilosophical but impracticable. But in view of the
persistency with which this view is still pressed on the courts, it is
important to show that, even if the position is true as theory, it is
false in practice. And then, if it appear that even in the most
comprehensive classifications, there remain a number of passions
and impulses without their necessary exclusive abodes ; if it also
appear that these abodes, even when designated, instead of having
permanent inmates, are occupied capriciously by a series of visitors,

' The following new manias may be at Nuremburg in 1877, a new primary
here noticed: Agoraphobia, 19 Journ. form of insanity was recognized, called
Ment. Sci. 456 ; Metaphysical mania, Walmsinn. See the Psychiatr. Central-
see 23 Journ. Ment. Sci. 608 ; Amhi- blatt, Oct. and Dec. 1877, and an ar-
tious mania, 18 id. 431. At a meeting tide on Necrophilism in 20 Journ.
of the German Verein and physicians Ment. Sci. 551,

475

§ 577.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

appearing from time to time with new names and new attributes —
this throws just discredit on the theory as a theory. If we can
establish the entire isolation of the instincts in question, then we
can conceive of one being insane without affecting the other. But
when we find, that, so far from such isolation being established,
these instincts cannot even be separately numbered, then their
separate existence must be regarded as unproved.^

III. PROMINENT FORMS OF SUPPOSED MONOMANIA.

§ 577. It remains to notice the more prominent forms of supposed
F rm f monomania. They will be grouped under the following
monomania heads, not because they have any psychological basis as

' " The gravity of tliis question does
not diminish when we consider the
fact that the alleged insane class is
increasing out of all proportion to the
general increase of the population of
the country ; and with this increase of
the insane comes a more liberal defini-
tion of insanity every year, constantly
growing wider and wider, until per-
sons who were formerly considered
perfectly sane are now most hospitably
taken within the fold of the irresponsi-
ble, and assigned to a ward or class in
the vast nomenclature or nosology of
modern insanity — classes and divisions
numerous enough and wide enough to
embrace the entire human family, sane
and insane. We find in the ' moral'
department alone divisions, subdivi-
sions, and double subdivisions as ex-
tensive as the propensity of the human
family to commit crime, to wit : homi-
cidal mania, kleptomania, oikeioma-
nia, suicidal mania, fanatico-mania,
politico-mania, etc. etc., without end.
To the old and constantly increasing
nomenclature of insanity of the books
there has lately been added another,
covering the loss of memory. To es-
cape being classed with the insane,
one must have a good memory. Whe-
ther he must come up to the high

476

standard of Macaulay, who could re-
cite the ' Times' newspaper, adver-
tisements, and all, after reading it ; or
of Niebuhr, who restored from memory
a burnt book of public accounts ; or of
Leibnitz, who could repeat from me-
mory the whole of the jEneid, we are
not told. The 'London Lancet,' from
which we have already quoted, says on
this subject : ' At the present moment,
insanity would seem to be anything
experts choose to make it. There is
no clearly formulated idea of sanity,
and the least ' strangeness' or weak-
ness is held to be, if the general cir-
cumstances appear to render the as-
sumption convenient, a sufiicient proof
of insanity to deprive an individual of
his liberty and social privileges.' (The
learned editor might have added with
equal truth, ' or make him irresponsi-
ble for murder.') The ' Lancet' con-
tinues : ' A master in lunacy has just
ruled that loss of memory is to be re-
garded as evidence of insanity, al-
though at least one experienced expert
medical practitioner — not a specialist —
had no hesitation in declaring that the
patient, or, as we would prefer to say,
victim, was not insane.' " — Dr. Elwell,
in North Am. Rev., Jan. 1882, p. 8.

HOMICIDAL MONOMANIA. [§ 578.

distinct manias, but simply because, as incidents of general insanity,
it is convenient to view them in this order.

1. "Homicidal mania^' (morbid propensity to kill).

2. "Kleptomania'^ (morbid propensity to steal).

3. "Pyromania" (morbid incendiary propensity).

4. "Erotomania" (morbid sexual propensity).

5. " Pseitdonomania" (morbid lying propensity).

6. " Oikeiomania" (morbid state of domestic affections).

7. "Suicidal mania'' (morbid propensity to self-destructiod).

8. "Dipsomania" (morbid propensity for drink).

9. " Fanatico-mania" (morbid state of the religions feelings).
10. "Politico-mania" (morbid state of political feeling).

1. Homicidal monomania.

§ 678. '■'■Homicidal monomania''''^ is not to be confounded, ac-
cording to Marc, with the sudden murderous impulse ^^^ destruc
with which madmen are occasionally seized under the tivefea-
influence of revenge, or of some other passion which con-
trols them ; and it is, in like manner, important to distinguish it
from delirium. Esquirol understands the term to mean a partial
insanity, distinguished by more or less violent cravings of a mur-
derous nature ; and subdivides it into —

a. Cases in which the murder is caused by a firm but insane
conviction — the monomaniac being carried away by an avowed but
irrational motive, and always manifesting conclusive signs of a par-
tial insanity of the understanding or the feelings.

h. Cases in which the monomaniac displays no perceptible distur-
bance of the understanding or the feelings, but is carried away by
a blind instinct, by an inexplicable sometJmig, which impels him to
the commission of murder. As, however, is very pertinently re-
marked by Schiirmayer, the distinctions and definitions by Marc
and Esquirol do not advance us in the field of forensic psychology
a single step beyond what we had already reached by means of the
physiology of insanity in general ; while their assumed homicidal
monomania falls, on the one hand, into the Avell-known rank of

I Siebold's Gericht. Med. § 219 ; Gott. 1835 ; Artikel Mania sine delirio,

Hoffbaur's Psychologie, § 122 ; Con- in Jesse's Encyclop. Worterb. der Med.

radi's Commentatio der mania sine Wissench. Bd. 22, Berlin, 1840, p.

delirio, Gott. 1827, 4 ; Conradi's Beitrag 410.
zur Geschichte der Manie sine delirio,

477

§ 579.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

mania, and is easily recognized and considered as one of its acci-
dental manifestations, or, on the other hand, draws into the circle
of its definition every murder of which the author is in a condition
to assert, that he was compelled to commit it by an impulse which
he found to actuate him.^

§ 579. Dr. Ray, among all Anglo-American authorities, gives
Approved ^^i^ species of mania the widest sweep. " It was first
by Ray. distinctly described by Pinel," he says, " and, though
its existence as a distinct form of monomania was for a long time
after doubted, it has subsequently been admitted by the principal
writers on insanity — by Gall and Spurzheim, Esquirol, Georget,
Marc, Andral, Orfila, and Broussais, in France ; by Connelly,
Combe, and Prichard, in England ; by Hoff'bauer, Platner, Ettmul-
ler, Henke, and Friedreich, in Germany ; by Otto, of Copenhagen ;
and by Rush, in this country. It has received the various appella-
tions of monomanie homicide, monomanie meurtri^re, mela7ieTiolie
homicide, homicidal insanity, instinctive monomania. Esquirol, in
his valuable memoir, first published in the shape of a note in the
French translation of Hoffbauer's work, observes, that homicidal
insanity, or monomanie homicide, as he terms it, presents two dis-
tinct forms, in one of which the monomaniac is always influenced
by avowed motives more or less irrational, and is generally regarded
as mad ; in the other, there are no motives acknowledged, nor to
be discerned, the individual being impelled by a blind, irresistible
impulse. It is with the latter only we are concerned, for the other
is clearly a form of partial intellectual mania ; but as this division
has not been strictly made by nature, cases often occurring that do
not clearly come under either category, the subject will be better
elucidated by noticing all the forms of this affection, and seeing
how intimately they are connected together."

' See supra, §§ 146-162, 163-189. ibid. 107 ; Report of Trial of People v.

See an interesting treatise by Dr. Griffin, ibid. 227 ; People v. Sprague,

Woodward, 1 Am. Journ. of Ins. 322. 6 ibid. 254; Com. v. Furbusli, 9 ibid.

See also People v. Kleim, reported 2 151. For an interesting though desul-

Am. Journ. of Ins. 245 ; Abner Baker's tory sketch of the law, see Mr. Warren's

Case Reviewed, 3 ibid. 26 ; Trial of Remarks on Oxford's and McNaugh-

Rabello, reported, ibid. 41 ; an Essay, ten's cases, 7 Am. Journ. of Ins. 318 ;

by Dr. Aubanel, on the same point, Black. Mag. for Nov. 1850.

478

HOMICIDAL MONOMANIA. [§ 580.

§ 580. The same distinguished authority suggests the following
tests: — rr 4-

lests sug-

I. In nearly all, the criminal act has been preceded gestedby
either by some well-marked disturbance of the health,
originating in the head, digestive system, or uterus, or by an irri-
table, gloomy, dejected or melancholy state ; in short, by many of
the symptoms of the incubation of mania. The absence of particulars
in some of the cases we find recorded leaves us in doubt how gene-
ral this change really is ; but a careful examination would, no
doubt, often, if not always, show its existence where, apparently,
it has never taken place.

II. The impulse to destroy is powerfully excited by the sight
of murderous weapons, by favorable opportunities of accomplishing
the act, by contradiction, disgust, or some other equally trivial and
even imaginary circumstance.

III. The victims of the homicidal monomaniac are mostly
either entirely unknown or indifferent to him, or they are
among his most loved and cherished objects ; and it is remark-
able how often they are children, and especially so, his own off-
spring.

IV. While the greater number deplore the terrible propensity
by which they are controlled, and beg to be subjected to restraint,
a few diligently conceal it, or, if they avow it, declare their mur-
derous designs, and form divers schemes for putting them in execu-
tion, testifying no sentiment of remorse or grief.

V. The most of them, having gratified their propensity to kill,
voluntarily confess the act, and quietly give themselves up to the
proper authorities ; a very few only — and these, to an intelligent
observer, show the strongest indications of insanity — fly, and per-
sist in denying the act.

VI. While the criminal act itself is, in some instances, the only
indication of insanity — the individual appearing rational, as far as
can be learned, both before and after the act — in others it is
followed or preceded, or both, by strange behavior, if not open
and decided insanity.

VII. Some plead insanity in defence of their conduct, or an
entire ignorance of what they did ; others deny that they labor
under any such condition, and, at most, acknowledge only a pertur-
bation of mind.

479

§ 582.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

The following are the indicia given by Taylor : —

1. The acts of homicide have generally been preceded by other
striking jf)ec^^?mr^Y^'es of conduct in the individual, often by a total
change of character.

2. They have in many instances, previously or subsequently,
g , attempted suicide — they have expressed a wish to die or
instances to be executed as criminals.

of homi- t r a-i K Ml • f 1

cidaima- § 581. As an illustration of the erroneous induction

on which the doctrine of monomania rests, may be men-
tioned the case of a man tried in 1869 for a murder in Alton,
England. He had enticed a little girl into a garden, where he at
once killed her, cut her in pieces, scattering the fragments in dif-
ferent places ; washed his hands publicly by the roadside ; went
quietly home, when he wrote in his journal, " killed a little girl; it
was fine and hot," and then confessed to the officers who appre-
hended him what he had done, giving no reason, and speaking of
it as an indifferent event.^ Now the very essence of homicidal
mania, as insanity exclusively moral, is that the reason is supposed
to be intact. But how was it in this case ? (1) The defendant
exposed himself unnecessarily, without motive, without precaution
as to concealment, to the most terrible punishment the law can in-
flict. (2) He viewed an act which to the eye of reason would be
the most tragic and revolting Avith as much indifference as he would
pulling up a plant or killing a fly. (3) It was in evidence that his
father had labored under acute mania ; that one of his near rela-
tives was at the time confined as a lunatic, and that he himself had
been so peculiar and liable to depression that he had been from
time to time watched to keep him from suicide. Under such cir-
cumstances it is scarcely accurate for Dr. Maudsley to say that
" he was not insane in the legal or the ordinary sense of the term,"
and to treat the case as supporting the theory of homicidal mania,
as distinguished from legal insanity. On the facts above stated, if
there were no countervailing evidence, neither judge nor psycho-
logist would pronounce the patient to have been possessed at the
time of the act of right reason.

§ 682. To the same efliect is a case which occurred in New Eng-
land, in 1868, which has also been claimed to prove distinctive

' See Maudsley's Body and Mind, p. 71.

480

HOMICIDAL MONOMANIA. [§ 583.

moral insanity. A gentleman of the greatest amiability and the
tenderest family affections, after having labored for several days
under depression, arose from his bed about midnight, killed one of
his children with a razor, and was attacking another, Avhen he was
arrested by his wife. He fled trembling and almost naked into the
road ; and was discovered early the next morning, conscious of the
terrible natm'e of his act ; conscious that it was a crime against the
law as well as a terrible grief to himself; but believing it was
necessary to rescue from great undefined calamity the very children
whom he had attacked. Certainly there was here a turmoil and
frenzy of the reasoning powers more signal as well as more awful
than that of the fatuous idiocy which is incapable of determining
right from wrong. Nor was the moral sense destroyed or percepti-
bly deranged, for there was the acutest anguish exhibited, and the
kneenest perception of the enormity of the act. But there was
such a wreck of the reasoning powers that the act, fearful and hate-
ful as it was, appeared to the perpetrator necessary. It was a case
of acute hypochondria involving derangement of the mind}

§ 583. Dr. Maudsley, while maintaining the distinctiveness of

this phase of insanity, attributes it, not to insulated moral _

^ -^ ' ' . Dr. Mauds-

derangement, but to neuropathic disease. " Those who ley main-
have practical experience of insanity,^ know well that this mania
there is a most distressing form of the disease, in which tj^g^^*^'^'^"
a desperate impulse to commit suicide or homicide over-
powers and takes prisoner the reason. The terrible impulse is de-
plored sometimes by him who suffers from it as deeply as by any
one who witnesses it ; it causes him unspeakable distress ; he is fully
conscious of its nature, and struggles in vain against it ; his reason
is no further affected then in having lost power to control, or having
become the slave of the morbid and convulsive impulse. It may be
that this form of derangement does sometimes occur when there is
no hereditary predisposition to insanity, but there is no doubt that
in the great majority/ of cases there is such a neurojjathic state.
The impulse is truly a convulsive idea, spr'inging from a morbid

1 See supra, §§ 155, 529 ; infra, § 636 ; the Gulstonian Lectures for 1870, by
and cases in Appendix to 3d ed. of this Henry Maudsley, M.D. London, 1870,
work, §§ 838, 839, 842. p. 73. To the same effect is Maudsley's

2 Body and Mind, an Inquiry into "Responsibility in Mental Disease,"
their Mutual Connection, etc., being 1874.

VOL. I.— 31 481

§ 584.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

condition of nerve element, and it is strictly comparable with an
epileptic convulsion. How grossly unjust, then, the judicial crite-
rion of responsibility which dooms an insane person of this class to
death if he knew what he was doing Avhen he committed a murder !
It were as reasonable to hang a man for not stopping by an act of
will a convulsion of Avhich he was conscious. An interesting cir-
cumstance in connection with this morbid impulse is that its convul-
sive activity is sometimes preceded hy a feeling very like the aura
epileptica, a strange 'morbid sensation, beginning in some part of
the body, and rising gradually to the brain. The patient may ac-
cordingly give warning of the impending attack in some instances,
and in one case was calmed by having his thumbs loosely tied to-
gether by a ribbon when the forewarning occurred. Dr. Skae
records an instructive example in one of his annual reports. The
feeling began at the toes, rose gradually to the chest, producing a
sense of faintness and constriction, and then to the head, producing
a momentary loss of consciousness. This aura was accomiMnied
by an involuntary jerking, first of the legs and then of the arms.
It was when these attacks came on that the patient felt impelled to
commit some act of violence against himself or others. On one
occasion he attempted to commit suicide by throwing himself into
the water ; more often the impulse was to attack others. He de-
plored his condition, of which he spoke with great intelligence, giv-
ing all the details of his past history and feelings. In other cases,
a feeling of vertigo, a trembling, and a vague dread of something
fearful about to happen, resembling the vertigo and momentary
vague despair of one variety of the epileptic aura, precede the
attack."

§ 58-t. When the cases sketched by Dr. Maudsley, however, are
examined, it will be seen that they present certain positive features
which distinguish them from insanity which is described as exclu-
sively " moral," and which the courts have declined to recognize.
Dr. Maudsley tells us (1) that the patient, in such cases, is in a
" neuropathic state," Avhich is a state of positive physical disease ;
(2) that this state " is strictly comparable with an epileptic convul-
sion ;" (3) that it is sometimes preceded by a feeling " very like
the aura epileptica ; and (4) that it is often the result of heredi-
tary insanity." Now the act, alleged to be criminal, may be
viewed as without a cause, or as being caused by an intelligent
482 .

HOMICIDAL MONOMANIA. [§ 585.

volition, or as being caused by material and physical compulsion,^
If the latter be proved to exist, whether the compulsion was internal
or external, the actor is not morally responsible. Disease, espe-
cially convulsive disease, may be such compulsion ; but, if so, it
must be affirmatively proved. The tests propounded by Dr. Mauds-
ley go far to constitute such proof. Of course, when a man is put
on trial for a criminal act, the presumption is that he committed
such act voluntarily. But this presumption may be overcome, and
physical coercion shown, by proof such as that which Dr. Maudsley
suggests, coupled, when it can be, by evidence of the unnaturalness
and motivelessness of the act.

§ 585. In Sir Henry Holland's "Recollections,"^ the following
anecdote is given: "In 1825, as I think, when he
(Canning) was foreign secretary and living at Glou- fi^^^ . „
cester Lodge, I was one morning called in haste to see a not in-e-

-r. o 1 1 T T 11 sistible.

patient at Urompton. Scarcely had 1 entered the room
of this gentleman (for such he was, and had filled a diplomatic
office of some consideration) when he eagerly besought me to pro-
tect him against himself. He told me that a propensity to kill Mr.
Canning had come upon him suddenly, and so strongly, that he had
taken these rooms at Brompton to be in the way of satisfying the
impulse. But against this insane will {induced hy some supposed
official injustice') a sounder feeling was struggling within him, and
for the moment gained mastery enough to lead him to seek for
instant restraint. I, of course, lost no time in providing it ;
warning Mr. Canning meanwhile to return to Gloucester Lodge by
a different road. These strange cases of what may be called
duplicity of the will are not rare in the long catalogue of mental
infirmities. In lighter and less critical form such inco7igruities
enter into the most familiar moods of character and acts of life;
hut even here they need to he self-recognized and resisted^ to prevent
their gaining mastery over the mind. The consistent and firm
command over the will ranks amongst the higher attainments of
man.''''

In this case we have two distinct factors which are among the

' See supra, §§ 146-162. Royal Institution of Great Britain,

2 Recollections of Past Life. By Sir Physician in Ordinary to the Queen.

Henry Holland, Bart., M.D., F.R.S., London: Longmans and Co., 1872.

D.C.L., etc. etc., President of the

483

§ 587.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

most constant incidents of criminal responsibility : (1) the motive
of malice, i. e., revenge for " some supposed official injustice ;"
(2) the capacity of mastering this feeling, so as to prevent it from
taking eifect in an overt act. Of course, if in such a case the mind
becomes insane and reason is dethroned, and if when in such a state
the homicidal impulse becomes irresistible, then, according to the
rules laid down in prior sections,^ a legal defence is made out. But
all this is in subordination to the principle stated by Sir H.Holland,
that these " propensities" must be " self-recognized and resisted to
prevent their gaining mastery over the mind." To declare that
they constitute irresponsibility, and that they are in the eye of the
law irresistible, is for the law to abdicate one of its highest offices,
that of educating men to resist such passions before they reach such
a height as to be really irresistible.^

§ 586. To recur to the classification foreshadowed by Sir W.
M nia if Hamilton, and expressed by Mr. Bain,^ the mind may be
existing at yiewed as combining three distinct but mutually depen-

all, isgene- „ ,. .,, ,. .

raijDot dent factors — feeling, will or volition, and thought or
specia . intellect. Disease either of feeling or thought is a dis-
ease of the mind as an entirety. Thus if feeling be in such a
diseased state as to generate delusions or hallucinations, the con-
clusions which thought draws from such data are insane. So if
thought is so diseased that the patient, from want of memory or
want of power of comparison, is incapable of determining the actual
relation to himself of the instrument by which his feeling is excited,
then the consequent volition is insane. These points may be illus-
trated as follows : —

§ 587. Anger,* as Aristotle points out, is an impulse, arising

• Supra, §§ 146-162. fork violently out of the window so as

2 See supra, §§ 115, 188, 403. " Pure to lose tlie opportunity of the crime to

uncontrollable impulse is also a source which he had a strong impulse — to kill

of crime among the insane, especially the physician just entering his room.'

of suicide, homicide, theft, and arson. This feeling may be so strong, even

In certain forms of mental disease, toward a tenderly loved child, that the

the sudden impulse to kill one's self or mother, if otherwise rational enough,

another, without any motive or delibe- begs to be kept out of its sight." — Dr.

ration or delusion, is at times quite Folsom, in North Am. Rev. for Jan.

beyond control; but it is often con- 1882, p. 39.

trolled even in very insane persons, as ^ See supra, § 307 a.

in the case of a patient in an asylum * See supra, § 418.
with mania, who threw his knife and

484

HOMICIDAL MONOMANIA. [§ 688.

from pain to ourselves, to put somebody else to pain. It is uni-
versal in the human breast ; to invest it with irresponsibility would
be to confer irresponsibility on all crime. As analyzed by Mr.
Bain,^ it contains these ingredients : (1) In a state of frenzied ex-
citement, some effect is sought to give vent to the activity ; (2) The
sight of bodily affliction and suff^ering seems to be a mode of sen-
suous and sensual pleasure ; (3) The pleasure of j^ower is pan-
dered to ; (4) There is a satisfaction in preventing further pain to
ourselves by inducing fear of us, or of consequences, in any one
manifesting harmful purposes. Of these (1) and (2) may be re-
garded as the instinctive working of anger ; the latter as the result
of feeling mingled with thought.

Assuming, then, the universality of anger as a human emotion,
its action, in insanity, is as follows : A blow is received, and the
sufferer tries to hurt the thing producing the hurt. An infant, for
instance, strikes in anger the floor on which he falls. The imbecile
dashes his medicine to the ground. The maniac strikes about him
in blind frenzy. Here there is no criminal responsibility, in the
common sense, for the outburst of anger, though it is proper that
one whose feelings are under such slight restraint should be kept
under tutelage.

§ 588. On the other hand, illusions or hallucinations may exist,
which, to a patient capable of reasoning correctly, may
make the indulgence in anger seem just. Such a pa- where rea-
tient, for instance, may believe himself in danger of his
own life, or may conceive that he is a soldier in the heat of battle,
or may think that the person whom he strikes is a tree or an image.
In this case also there is no criminal responsibility, though abund-
ant ground for disciplinary confinement.

But anger can never be viewed as insanity in such a way
as to constitute it a defence, unless the intellect be proved to
be disturbed in the modes above specified. Or, to state the
proposition in other words, anger — or destructive impulse of
any phase — cannot, psychologically or ethically, be an excuse
for crime, as long as reason exists, by which it can be con-
trolled.^

' Mental and Moral Science, London, 2 gee su2}ra, §§ 146-162, 188, 403.
1868, p. 262.

485

§ 590.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

§589. Viewing the question of "homicidal insanity," there-
fore, on its psychological side, we come to the conclusion that
unless the mind be insane, there can be no separate insanity of
the moral system having this distinct type. Viewing the question
ethically, we must conclude that no such alleged impulse should be
an excuse for crime while there is reason in the offender adapted to
the control of the impulse. This brings psychological and ethical
science in this respect in accord with juridical.^ At the same time
it must never be forgotten that there are forms of insanity — e. g.,
melancholia — of which the homicidal propensity, especially in the
killing of children and objects of particular love, is a natural out-
groAvth. How far such substratum of insanity may be occult, and
how far it may burst out exceptionally as mania transitoria, will
be considered under other heads .^

2. '■'' Kleptomania'''^ {inoi'hid propensity to steal).

[^For important medico-juridical opinions on cases of alleged
^'^ Kleptomania.,^' see Appendices, §§ 843, 844, to third edition
of this ivorJc.y

§ 690. A propensity to steal occurs not unfrequently as a symp-
Anaiysisby ^^™ ^^ mania, and the mental confusion incidental to it,
Eiiinger. and in depression and delirium. In such cases the dis-
ease is readily detected. But wliere it occui's in cases of concealed
insanity, its discovery is not easy. From Eiiinger we adapt the
following : —

1. In the earlier developments of mania this is an important
symptom ; it will, however, be found accompanied, more or less,
by other symptoms of incipient derangement, such as a general
alteration in the accustomed mode of feeling, thinking, occupation,
and life of the individual, a disposition to scold, dispute, and
quarrel, to drink, and to wander about busily doing nothing,
and the bodily signs of excitement (restlessness, want of sleep,
rapid pulse, etc.).

• See supra, §§ 146, 162, 163-189, des Maladies Meutales, M. Morel, tome

403. i. p. 319, Paris, 1854.

2 See infra, §§ VOe-YlO. * See also a case rep. Am. Journ.

3 See Med. Leg., M. Orfila, tome 1. Ins., No. 254.
p. 364, Paris, 1848 ; Etudes Cliuiques

486

KLEPTOMANIA. [§ 591.

2. The abnormal tendency continues after the disease, to all
external appearance, has ceased. This continuance, however,
shows that mental disease, though latent, still exists. (This
calls for a continued course of observation by the examining phy-
sician.)

3. There are distinct but occult hallucinations at work. These
are to be assumed the more readily, the more bizarre and exclu-
sive is the desire to steal, and the more the objects to which it is
confined are out of proportion to the property of the thief ; and
particular attention should be paid to the existence, present or past,
of other symptoms of insanity.

4. Automatic impulses, such as the cravings of pregnant women,
may actuate the perpetrators ; and the degree of mental lesion
may be inferred from the extent to which the moral nature revolts
at and abhors the deed. The same inference is deducible from the
slightness and grotesqueness of the peculations, and the degree in
which other morbid symptoms are apparent in the body and the
mind when the deed is committed.

§ 591. Dr. Rush, whose speculative mind seized readily on the
then novel distinctions which the French alienists of his niustra-
day were propounding, was the first American authority *'°°®-
to claim insularity for this propensity. " There are persons," he
said, " who are moral to the highest degree as to certain duties,
but Avho, nevertheless, live under the influence of some one vice.
In one instance, a woman was exemplary in her obedience to every
command of the moral law, except one — she could not refrain from
stealing. What made this vice more remarkable was that she was
in easy circumstances, and not addicted to extravagance in any-
thing. Such was the propensity to this vice, that when she could
lay her hands on nothing more valuable, she would often at the
table of a friend fill her pockets secretly with bread. She both
confessed and lamented her crime." " Cases like this," so argues
Dr. Ray, " are so common, that they must have come within the
personal knowledge of every reader who has seen much of the
world, so that it will be unnecessary to mention them more par-
ticularly. It would be difficult to prove directly that this propen-
sity, continuing as it does throughout a whole life and in a state of
apparently perfect health, is, notwithstanding, a consequence of
diseased or abnormal action in the brain, but the presumptive evi-

487

§ 593.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

dence in favor of this explanation is certainly strong. First, it is
very often observed in abnormal conformations of the head, and
accompanied by an imbecile condition of the understanding. Gall
and Spurzheim saw in the prison of Berne a boy, twelve years old,
who could never refrain from stealing. He is described as ' ill-
organized and rickety.' At Hainau they were shown an obstinate
robber whom no corporal punishment could correct. Pie appeared
about sixteen years of age, though he was in fact twenty-six ; his
head was round, and about the size of a child's one year old. He
was also deaf and dumb, a common accompaniment of mental im-
becility. An instructive case has been lately recorded, in which
this propensity seemed to be the result of a rickety and scrofulous
constitution. Secondly, this propensity to steal is not unfrequently
observed in undoubted mania. Pinel says it is a matter of common
observation that some maniacs, who, in their lucid intervals, are
justly considered models of probity, cannot refrain from stealing
and cheating during the paroxysm. Gall mentions the case of two
citizens of Vienna, who, on becoming insane, were distinguished in
the hospital for an extraordinary propensity to steal, though pre-
viously they had lived irreproachable lives. They wandered over
the house from morning to night, picking up whatever they could
lay their hands upon — straw, rags, clothes, wood, etc. — which they
carefully concealed in their room."^

§ 592. How frequently the illustrations just mentioned have
done service to establish this mania will be presently
when rea- noticed.^ It is sufficient at present to invoke for their
son con- disposal the principle heretofore abundantly vindicated,
that in all cases where the mind is sane it is the duty
of the state, by education and penal discipline, to establish sane
morality.^

§ 593. Yet, when we analyze the cases adduced of this alleged
"mania," we cannot fail to see how many of them are
indicate attributable to ascertained mental disease. This is emi-
^^sanity. nently the case with epileptics. Dr. Erhardt* enume-
rates many cases where these unhappy suiferers have
been possessed with irrepressible desires to appropriate to them-

• Ray on insanity, 189, 190, 191 ; » See supra, §§ 115-188, 403, 495.
see ante, § 106. * Ueber ZurechungsfahigkeitderEpi-

2 Infra, note 2, p. 489. leptischen.

488

KLEPTOMANIA. [§ 593.

selves whatever they could secretly lay their hands on, valuable or
not. And generally -with regard to the moral responsibility of
epileptics, it is important to observe, says the same judicious author,
that even after attacks have been for months suspended, the mind
is in a condition of disorganization which should properly divert
from it the application of those severe rules which apply to minds
perfectly sound. ^ The same criticism may be applied to other
cases cited by Gall, of women who, when pregnant, were violently
impelled to steal, though perfectly upright at other times. Fried-
reich gives the case of a pregnant woman who, otherwise perfectly
honest and respectable, suddenly conceived a violent longing for
some apples from a particular orchard, two or three miles distant.
Notwithstanding the entreaties of her parents and husband not to
risk her character and health, and their promises to procure the
apples for her in the morning, she started off in company with her
husband, at nine o'clock of a cold September night, and was de-
tected by the owner in the act of stealing the apples. She was
tried and convicted of theft, but subsequently a medical commission
was appointed by the supreme court to examine and report upon
her case. Their inquiries resulted in the opinion that she was not
morally free, and consequently not legally responsible while under
the influence of those desires peculiar to pregnancy.^ If, however,

' See also Boileau de Castelnau De them seem to be garnered all the affec-

I'epilepsie dans ses rapports avec tions of those who consider them as the

I'alienation mentale, consideres au most perfect specimens of the class

point de vue medico-judicaire. An- they are made to represent. This is

nales d'Hygiene publ. et de Medecine the more remarkable, since within the

L6g., Avril, 1852, No. 94. past few years the whole theory of

2 Ray on Insanity, pp. 192-3. Dr. moral insanity has been ably contested
Chipley, in an interesting article in by such writers as Heinrich, Leubu-
the American Journal of Insanity for scher, Mayo, and others, and it no
.July, 1866, remarks with much justice longer receives that uniform appro-
on the hard use to which several an- bation in the land where it was first
cient cases of " monomania" are put, recognized as was once accorded to it.
and this peculiarly applies to the cases Curiously enough, as.itis losing ground
in the text, and others cited from Gall and becoming effete in the land of its
and Spurzheim. " It must strike one birth, it meets 'with an increased sup-
as curious," he says, " how often these port in our own country.' Is its des-
same old cases are made to do duty, tiny to be like that of the current
They pass down from one author to fashions, which, as they fade away in
another as sacred heirlooms pass from America, enjoy a short reign, and then
one generation to another; and in give place to other discoveries?"

489

§ 595.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

the full report of this case could be secured, we must conclude,
judging from subsequent German decisions, that it would exhibit
some proof of mental disease.

§ 594. The same remark applies more strongly to a well-known
case cited by Fodera.^ " I had a female servant," he adds, " who
was a very good Christian, very tvise, and very modest, but who
could not prevent herself from stealing in secret, from myself and
others, even the most trifling things, though aware of the turpitude
of the action. I sent her to the hospital as mad. After a long
time, appearing to be reclaimed, she was restored to her place
among the other servants ; by little and little, in spite of herself,
the instinct returned ; and being distracted on the one hand by the
evil propensity, and on the other by the horror which she felt of it,
she fell into an access of mania, and suddenly died in the violence
of a paroxysm.'''' The " access" was no doubt the manifestation of
mania previously occult.

§ 595. A trial, involving the defence of kleptomania, was, in
1855, the cause of much discussion by the London press. Mrs.
R., the wife of a physician of rank and affluence, was detected in
secreting some French cambric handkerchiefs in the shop of a re-
spectable haberdasher. The jury were unable to agree, and the
Times, in discussing the case, made the following statement: —

" It is an instance of that not very uncommon monomania which
leads persons, otherwise estimable and well conducted, to pilfer
articles of a trifling value, in obedience to the impulses of a diseased
imagination. The fact is notorious that many persons of high rank
and ample means have been affected with this strange disorder.
Every one who is acquainted with London society could at once
furnish a dozen names of ladies who have been notorious for ab-
stracting articles of trifling value from the shops where they habit-
ually dealt. Their modus operandi was so well known, that on their
return from their drives their relatives took care to ascertain the
nature of their paltry peculations, inquired from the coachman the
houses at which he had been ordered to stop, and, as a matter of
course, reimbursed the tradesmen to the full value of the pilfei'ed
goods. In other cases a hint was given to the various shopkeepers

1 For other cases, vide Miinchmeyer, xiv. art. Femme, p. 624, and art.
in Henke's Zeitsohrift, vol. xlix. p. Grossesse ; Prager Vierteljahrschrift,
350 ; Diet, des Sciences Medicales, tome v. 30, Bd. 2, p. 121.

490

KLEPTOMANIA. [§ 596.

at whose houses these monomaniacs made their purchases, and they
were simply forewarned to notice what was taken away, and to
furnish the bill, which was paid as soon as furnished, and, as a
matter of course, by the pilferer herself, without any feeling of
shame, or emotion of any kind." Of Lady Cork similar anecdotes
are related by Mrs. Kemble.^

With resard to the motiveless nature of some thefts and the
singularly incorrigible character of some thieves, Casper makes
some pertinent remarks : " The rare cases which Marc refers to, in
which the thief throws away the object stolen, or spontaneously
proposes to pay for it, admit of physiological explanation. We do
not mean that very common state of perversity and malignity which
may be the cause of some thefts of this kind ; what we mean is,
that so much tact, address, and courage are often needful to com-
mit a theft Avithout being discovered, that it is so needful to watch
and to seize the right moment, to plan with care and to execute with
promptitude, that one can comprehend the great pleasure which is
experienced in overcoming such difficulties, and how much so peril-
ous an enterprise, crowned with success, is flattering to the self-
approbation of the thief.

" I am convinced, also, that in some individuals a real attraction
is felt in this chase after the property of another. I say chase, for
I can compare it to nothing better than the passionate desire to fol-
low a hare or a fox at the hazard of life, or to Avatch for the prey
like fishermen in England, who remain whole days on the water,
patiently watching the least movement of their game. I am
thoroughly convinced that this emotion is of much force in holding
thieves to their mode of life, and it is in this manner only that Ave
can explain how it is that some of them, after a long imprisonment,
immediately recommence to steal, although they well know that a
second punishment more severe than the first awaits them."

§ 596. The value of the thing stolen, as has been already noticed,
and as is Avell illustrated by Dr. Kieser, does not ahvays
enter into the motive. Old bits of iron, Avood, or thread article
are stuck furtively into the pocket. ^ But it must not be stolen not

•^ _ -i necessarily

forgotten, that, Avhile a market value may amount to an element.

• Atlantic Monthly, March, 1877, p. Bucknill, Journal of Mental Science,
435. See also article by Dr. J. C. July, 1862.

2 Elemente der Psychiatrik, p. 195.

491

§ 598.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOaiCALLY.

zero, a conventional value may be higher. Thus, when Dr. Buch-
land was Dean of Westminster, he received anonymous letters,
containing a chip of black oak cut from the coronation chair, and a
fragment of the tomb of Henry VIII., which the writers stated they
had purloined in their youths and now desired to return. Here
were cases, it might be said, of " kleptomania," and the reason given
would be that the things were of no value. But a scrutiny of the
case will show that in this, as in all cases of the purloining of
" relics," the reverse is the truth. The chips were taken because
they were believed to have value. They were curiosities ; they
would give a sort of eclat to the collections of their possessors.
But it was soon found that this would not answer. To exhibit these
chips would be to confess the larceny. They could not, therefore,
be placed in the collection. They were stolen because they were
of some value. They were returned when it was found their value
was lost by their theft. If in such cases "kleptomania" be estab-
lished as conferring irresponsibility, there would be few memorials
of past distinction that would not be in a short time chipped away.^
§ 597. Dr. Kraift-Ebing, whose high position as a psychological
phvsician has already been noticed, and who for sagacity

Criticism ^ " . "^ . ' ° *'

of Kraflft- and experience has no superior, thus (1871) speaks,
^^^' under the title " Wahnsinn," in Holtzendorif's Encyclo-

paedia, a work, as has been said, of very high juridical authority:
" In the process of maniacal excitement there is sometimes a marked
propensity for stealing. But this impulsive, vehement compulsion
(Drang) to stealing is never an isolated pathological symptom.
^Kleptomania,^ in this sense, like the other ' monomanias,' is im-
possible. As part-symptoms of general psychical disease, we may
undoubtedly class morbid impulses to kill, to steal, etc. These have
been erroneously called monomanias, and the general condition of
disease has been, by this process, ignored. The doctrine of mono-
mania is to-day rightly abando7ied"^

§ 598. What, then, are the tests by which "kleptomania" is

determined ? Matthey tells us that it exists whenever

abieness there is a stealing without necessity, without being com-

prove°in*- pelled by the cravings of misery. But is it a requisite

sanit}'. Qf criminal stealing that it should be impelled by neces-

' See infra, § 598. 2 See supra, 5 570.

492

KLEPTOMANIA. [§ 601.

sity, and by the cravings of misery ? Are thieves exclusively
those who are impelled by " le besoin pressant de la mis^re ?"
Certainly the records of our criminal courts do not show this.
Most of those who are indicted for larceny, indeed the whole class
of shop-lifters, and of pickpockets, are persons of good appearance,
well-dressed, with intellects which would afford them adequate sup-
port in trade, and sometimes even luxurious lives. Thieves of this
class steal, not for necessaries, but to supply luxurious superfluities.
The number of those who steal to appease hunger, or to buy cloth-
ing that is simply decent, is small.

§ 599. Another mark of " kleptomania," according to Marc, is
the stealing of articles of value, small in comparison with the ex-
tent of the offender's estate. But is it an incident of criminal
larceny that the article stolen should be large in comparison with
the ofiender's estate ? Have we not already seen^ that collections
of coins and curiosities have to be jealously guarded to preserve
them from the depredations of avaricious collectors ? Have we not
had cases of great depredators, who, with immense spoils already
secured, have gone on embezzling ? Are there not in the criminal
reports frequent instances of rich but persistent thieves ?

§ 600. It is said, again, by Marc, that this supposed propensity
is marked by indifference to the stolen article when obtained ; it is
soon discarded or thrown away. But is not the man who is " alieni
appetens" very often, to use Tacitus's fine antithesis, " sui pro-
fusus ?" Is not that which is lightly got often lightly parted
with ? Are there not numerous cases in the books in which
articles of jewelry are stolen for the purpose of being given
away ?

§ 601. Then, again, we have assigned as a test of " kleptoma-
nia" the return by the offender of the thing stolen to the party
from whom it was taken. But have we not numerous instances of
"conscience money" returned to government — money of which it
is the distinguishing mark that it was unconscientiously taken and
is conscientiously returned ? And may there not be sometimes a
passion for pilfering like a passion for fishing or hunting, which,
without being " irresistible," may yet spend itself in the pursuit,

' Supra, § 596.

493

§ 604.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

and, when the object is obtained, be followed by sober reflection
and by amends ?

§ 602. Undoubtedly insane persons do pilfer, and pilfer some-
times with much ingenious surreptitiousness ; and un-
nianota" doubtodly, as Sander illustrates,^ this is often a symp-
proof of ^Qjjj Qf incipient mental paralysis. The instinct for

insanity. .... .

acquisition is congenital ; when the mind fails and the
idea of property becomes confused, this instinct often appears in
appropriating and even secreting the property of others. But this
is a symptom of a decaying or disordered intellect, not a proof of
monomania coexistent with sanity.

§ 603. In other words, " kleptomania" cannot coexist with
sanity, nor can a sane person be a " kleptomaniac."^

3. "jP^/romama" (^norhid incendiary propensity').

§ 604. Although this abnormal propensity has no substantive
existence as a monomania, it will remain, neverthe-

Pyromania 1^11 o • •

a symptom less, worthy of much study as a symptom of insanity.

msani y. -j-^ investigating such cases, the following inquiries
should be made : —

a. In persons wlio Jiave passed the age of piuberty^ whether
there is not depression or partial insanity as a basis ; whether the
individual was not overcome and impelled to the deed by a name-
less dread which he could not dispel, or by some crazy notion be-
fore concealed.

h. In persons just arrived at the age of puberty. Here the
state of development in general, and in particular that of the mind,
of the whole body, and of the sexual organs, must be accurately
weighed and estimated, with special reference to age and sex, edu-
cation and mode of life, as experience teaches that the irregulari-
ties of every kind which here occur (such as accelerated and impeded
growth, unusual prostration and fatigue of the limbs, with painful
sensations not produced by adequate visible causes, swellings of
the glands, anomalies in menstruation, cramps and other nervous

' Vierteljahrschrift f. gericht. Med. 2 gge supra, §§ 146-162. To this

1863 ; see also cases in Appendix to effect may be cited the testimony of

third edition of this work, §§ 843, Dr. Gray in the Guiteau case, Wash-

844. ington, Jan. 1882.

494

pmoMANiA. [§ 605,

attacks, and particularly irritation of mind), exert the most impor-
tant influence on the growth and increase of certain desires and
inclinations, and easily impair the power of self-control. These
transition states acquire a particular significance when accompanied
by home-sickness, which, without necessarily attaining the height
of complete melancholy, becomes a powerful element in morbid de-
rangement.

c. Where the individual is yet m infancy. Here, in the absence
of reason, reflection, and religious and moral culture, a childish
curiosity generally furnishes the motive, more rarely a grudge,
anger, or revenge ; but physical and mental or moral causes may also
be at work independently or as auxiliaries. Tender years are suffi-
cient, in such cases, to exclude the idea of criminal responsibility.

§ 605. " A morbid propensity to incendiarism ov ])yroma7iia, as
it has been termed, where the person, though otherwise Ray's
rational," it is stated by Dr. Ray, " is borne on by an opinion,
irresistible power to the commission of this crime, has received the
attention of medical jurists in Europe, by most of whom it has
been regarded as a distinct form of insanity, annulling responsibi-
lity for the acts to which it leads. Numerous cases have been re-
lated, and their medico-legal relations amply discussed by Platner,
Vogel, Masius, Henke, Gall, Marc, Friedreich, and others. In a
few of these cases the morbid propensity is excited by the ordi-
nary causes of insanity ; in a larger class it is excited by that con-
stitutional disturbance which often accompanies the menstrual pe-
riods ; but in the largest class of all, it occurs at the age of puberty,
and seems to be connected with retarded evolution of the sexual
organs. The case of Maria Franc, quoted by Gall from a German
journal, who was executed for house-burning, may be referred to
the first class. She was a peasant of little education, and, in con-
sequence of an unhappy marriage, had abandoned herself to habits
of intemperate drinking. In this state a fire occurred in which
she had no share. From the moment she witnessed this fearful
sight, she felt a desire to fire houses, which, whenever she had
drunk' a few coppers' worth of spirits, was converted into an irre-
sistible impulse. She could give no other reason nor show any
other motive for firing so many houses than this impulse which drove
her to it. Notwithstanding the fear, the terror, and the repentance
she felt in every instance, she went and did it afresh. In other

495

§ 606.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

respects her mind was sound. Within five years she fired twelve
houses, and was arrested on the thirteenth attempt." But as to
this statement, two qualifications must now be kept in mind. First,
whatever may have been the temporary reception of this doctrine
by alienists thirty years ago, it is now, as is shoAvn by Dr. Liman
in his (1871) edition of Casper, almost entirely without high
psychologico-medical support. Second, a close examination of the
case of Maria Franc exhibits, as subsequent observers agree,
mental disturbance, which, when she was inflamed by the "few
coppers' worth of spirits" above noticed, readily took the incen-
diary type.^

§ 606. " This plea," we are told by Taylor, "has been already

T.. admitted in English law,^ but chiefly" — it should have

Disap- _ => _ ' _

proved in been said onli/ — " in those instances in which there was

foro judicio , • n , i i ,• T

strong reason to suspect intellectual aberration, in one
modern case,^ the prisoner was convicted on the principle that,
although of weak intellect, she knew right from wrong."* Among
several important trials in which this plea has been urged in defence,
the one most interesting to the medical jurist is that of James Cribson,
tried before the high court of justiciary, Edinburgh,^ of which a very
full report will be found in Cormack's Edinburgh Journal, February,
1845, p. 141. The prisoner was charged with setting fire to certain
premises, and the defence chiefly rested upon the allegation that he
was in a state of mind which rendered him irresponsible for the act.
The medical evidence was generally in favor of the insanity. The
lord justice clerk (Hope), in a very elaborate charge to the jury,
laid down for their guidance most of the legal propositions which
have been already discussed under homicidal mania. He remarked
that they were "not to consider insanity according to the definitions
of medical men, especially such fantastic and showy definitions as are
found in Ray, whose work was quoted by the counsel for the panel,
and in many other medical works on the subject. He adopted Mr.
Alison's view that the consciousness of riurht and wrono; must be
applied to the particular act, and not to crime in the abstract. The

' As to this and other of Gall's cases, * See Ann. d'Hyg. 1833, ii. 357;
see supra, § 593, note 2, p. 489. 1834, ii. 94.

2 See cases, Med. Gaz. xii. p. 80. ^ Dec. 23, 1844.

3 Reg. V. White, Wilts. Summer Ass.
1846.

496 ,

PTROMANIA. [§ 606 a.

duty of deciding on this question is with the jury ; it is not to be
delegated to medical men, and by relying upon their own judgment
their decisions would be nearer the truth than that of any body of
medical Avitnesses." The jury negatived the plea, and the prisoner
was sentenced to transportation for fourteen years. ^

An instance of insane pyromania may be found in the case of
Jonathan Martin^ who fancied himself to be deputed from God to
burn down the Cathedral of York, in order to do away with the
heresies which he supposed to exist in the church.^

As exhibiting the checks proposed by those who maintain the
independent existence of " pyromania" as a " monomania," we call
attention to the following, laid down by Hencke, adopted by Marc,
and recommended by Dr. Ray : —

§ 606 a. 1. " To prove the existence of pyromania, produced by
the sexual evolution, the age should correspond with that n^^^-^
of puberty, which is between twelve and fifteen. Some- proposed

. , . • 1, • r , lay Hencke.

times, however, it may occur, especially m temales, as

early as the seventh or tenth year, and, therefore, if the symptoms

are well marked, we have a right to attribute them to this cause.

2. " There should be present symptoms of irregular development;
of marked critical movements, by means of which nature seeks to
complete the evolution. These general signs are, either a rapid
increase of stature, or a less growth and sexual development than is
common for the age of the individual ; an unusual lassitude and
sense of weight and pain in the limbs, glandular swellings, cutaneous
eruptions, etc.

3. " If, within a short time of the incendiary act, there are symp-
toms of development in the sexual organs, such as eiforts of menstru-
ation in girls, they deserve the greatest attention. They will
strongly confirm the conclusions that might be drawn from the
other symptoms, that the work of evolution disturbed the functions
of the brain. Any irregularity whatever of the menstrual discharge
is a fact of the greatest importance in determining the mental con-
dition of incendiary girls.

4. " Symptoms of disturbance in the circulating system, such as
irregularity of the pulse, determination of blood to the head, pains
in the head, vertigo, stupor, a sense of oppression and distress in

' Taylor's Med. Jur. 595. " Ibid. p. 595.

VOL. I.— 32 497

§ 607.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

the chest, are indicative in young subjects of an arrest or disturb-
ance of the development of the sexual functions, and therefore
require attention.

5. " For the same reason symptoms of disturbance in the nervous
system, such as trembling, involuntary motion of the muscles,
spasms and convulsions of every kind, even to epilepsy, are no less
worthy of attention.

6. " Even in the absence of all other symptoms, derangement of
the intellectual or moral powers would be strong proof, in these
<3ases, of the existence of pyromania. Of the two, the latter is far
the more common, and is indicated by a change in the moral char-
acter. The patient is sometimes irascible, quarrelsome, at others,
sad, silent, and weeping, without the slightest motive. He seems
to be buried in a profound re very, and suddenly starts up in a fright,
cries out in his sleep, etc. These symptoms may have disappeared
and reappeared, or degenerated at last into intellectual mania.

7- " The absence of positive symptoms of mental disorder, as well
as the presence of those which appear to show that the reason is
sound (so it is argued), is not incompatible with the loss of moral
liberty." As giving the old but now exploded theory on this point,
the following may be cited from Marc : " Even when, previously to
the incendiary act, they have showii no evident trace of mental
alienation, and been capable of attending to their customary duties ;
when, on their examinations, they have answered pertinently to
questions addressed to them ; when they have avowed that they
were influenced by a desire of revenge ; we cannot conclude with
certainty that they were in possession of all their moral liberty,
and that, consequently, they should incur the full penalty of the
crime. These unfortunates may be governed by a single fixed
idea, not discovered till after the execution of the criminal act.
Pyromania, resulting from a pathological cause, may increase in
severity, as this cause itself is aggravated, and suddenly be con-
verted into an irresistible propensity, immediately followed by its
gratification."^

§ 607. Griesinger views the question with his usual philosophical
breadth: " If, from the observations which have been published upon
this subject, we exclude all those cases where egotistical motives

' Ray on Insanity, 201.

498

PYROMANIA. [§ 607.

have evidently guided the hand of the incendiary, there Opinion of
still remains a certain number in which this crime of arson that pyro-
has been committed by patients laboring under a well- '^^"''^•u,
marked melancholia (particularly of nostalgia passing
into mania), a state which is often accompanied by important
derangements in the general health, and frequently in the sexual
organs. The morbid impulse develops itself precisely in the same
manner as does the homicidal impulse which we have just been
studying. The feeling of mental anxiety and the general disturb-
ance which arises from the morbid condition of the faculties do not,
as has been said (Masius), impel the individual to seek to stifle this
anxiety by the sight of a great flame, but merely to relieve by an
outward act, however negative and destructive in character, the
profound discord and uneasiness which rule within, and thereby to
obtain peace and tranquillity. The particular direction which this
morbid impulse takes, viz., incendiarism, may arise from the fact
that to those persons in whom this tendency has been most accu-
rately observed — namely, young people, particularly young maid-
servants— fire, with which they in the performance of their duties
have much to do, is always ready at hand, and presents itself as the
readiest means by which they can satisfy the morbid craving which
torments them — a means which is easily employed, and which re-
quires neither great energy of action nor violent determination to
make use of.

" Away^ tJien, with the term pyromania, and let there he a care-
ful investigation in every case into the individual psychological
peculiarities which lie at the bottom and give rise to this impulse.

" The grand question inforo, in all such cases, must ever be to
ascertain whether there existed a state of disease which limited, or
could have limited, the liberty of the individual. Sometimes the
symptoms of undoubted mental disease can be clearly distinguished
— a dominant feeling of anxiety, hallucinations, states of hysteri-
cal exaltation ; in other cases, the actual existence of a nervous
disease [epilepsy or chorea^ renders probable the assumptio7i that
the accused has beeii subject to some passing mental aberration.
We should not forget that usually very little is wanted to interfere
with the liberty of action ; they are, for the most part, young,
childish or half childish, often morally and intellectually weak,
silly, and capricious individuals. The incendiary act often appears

499

§ 609.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

to be utterly without any motive, the feeble ego having opposed no
resistance to the thought of the deed which suddenly sprang up.

" Of course there are also cases where the insane set fire to
buildings under the impulse of motives very different. Jonathan
Martin, who burned the Cathedral of York, was not a melancholic,
but was evidently laboring under chronic partial dementia, and it
was in consequence of his hallucinations that he sought ' to purge
the house of the Lord of the unworthy priests' who dwelt in it.

" To include this case under the title of ^ pyromania' (^e. (/.,
Pinel, ' Path, lerebr.,' p. 328) is the necessary but evil result of a
superficial classification . " ^

§ 608. Dr. Krafft-Ebing, in the article on " monomanias" already
quoted, says : '• Incendiarism through psychical disease
Krafft- is always a symptom of such disease, though variously

*' induced. With persons suffering from nostalgia and

melancholia, it is prompted by terror and sensual delusions ; with
maniacs, by insane conceptions ; with idiots, by childish pleasure
in fire, or diseased passion (revenge). With youthful culprits the
crime is more frequent, because it requires no courage, and is easily
committed." This eminent and experienced observer holds, as has
been seen, that the theory of " monomania" is in itself psychologi-
cally absurd. 2

§ 609. The statistics that have recently (1871) been collected
St f fc ^^ ^^'^^ topic go a great way to refute the theory that
on subject there is a special function which, when deranged, ex-
the mania hiDits itseli as a morbid incendiary propensity, and that
®^^' there is a particular age when this derangement is apt
to occur. Notwithstanding the assertion that this is a well-known
and constant disease, there are some sections of the country in
which all the cases of arson that have been tried for years are those
in which adults were the defendants, and this without a single one of
the "pyromaniac" symptoms which have been heretofore detailed.
The table of Prussian criminal statistics for twelve years shows that
out of a thousand trials of children, of the ages which " pyromonia"
is said to affect, but a single case of incendiary crime is to be
found.

' Griesiiiger, Ment. Path., Syden. * See sitpra, § 570.
ed. § 129.

500

PYROMANIA. [§ 610.

§ 610. The doctrine, in fact, has arisen from the difficulty felt
by learned and philosophical experts in placing themselves j. .
in the position of a young servant charged with arson, has arisen

» 1 f i 1 f> • ■ 1 • from mis-

A boy or ten years' set lire, without apparent motive, to couce.ption
his father's house. Mental unsoundness either at the "^ experts,
time of or after the act was not probable ; and there were no
anomalies of physical development or of physical disease. He was
aware of the penal nature of the act. He went about it cautiously,
removing beforehand a child that was placed under his care. The
only assignable cause was childish caprice. A philosophical expert
would with difficulty understand this, not being able to put himself
in the boy's place. But the court and jury are forced to do this,
and hence in this case the judgment was that the boy Avas respon-
sible, though in a degree lessened by his youth. Or a girl of the
same age, employed as a servant in a farm-house, gets up too late
in the morning, and is scolded or deprived of her breakfast. This
is a grievance the expert may think but little, but to the girl, who
has slight intercourse with any one out of the farm, and to whom
the farm is everything, the insult is as mortifying as would be the
withdrawal of a German savan's decoration, or the turning, by an
English minister, of a petitioner out of doors. The girl goes out
and sets fire to a haystack, previously seeing that there is little
danger to any one's life by the fire. This is a serious thing to the
expert, who looks at fires in their probable consequences ; but it is
a light thing for the girl, who views the burning haystack as she
would a large-sized country hearth-fire. The expert, therefore,
hearing the facts, declares that it is impossible that a sane person
could commit arson on so slight a provocation, and that the girl
must be a " pyromaniac." Yet the iprovoG&tion, mutatis onutandis,
is the same as that which led to the " Captain Rock" arsons in
Ireland. A peasant is aggrieved. He determines to avenge him-
self by burning a haystack or perhaps a house. The burning is
partly from revenge, partly from a wish to drive off an incongenial
neighbor. The propensity is indulged in as long as it can be done
so with impunity. It is suppressed as soon as men know that it
will be punished.

' See case given by Dr. Faber, in the Deutsche Zeitschrift fur Staatsarz-
neikunde for 1870.

501

§ 615.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

§ 611. AVe must not, however, forget that insane persons some-
times have a propensity to play with fire,^ as they have
mania may for other kinds of mischief; nor are cases unknown in
torn of Tif-" which lunatics have been possessed with the delusion that
sanity. they were divinely commissioned to use fire to destroy

churches, palaces, or even cities. Nor is it denied that an idiot,
watching a woman kindling a fire, may, in exercise of those imitative
faculties which in him are so strangely divorced from reason, go out
and set fire to a house. These are cases of insanity, in which in-
sanity is substantively and independently shown. All that is here
asserted is that there is no such thing as " pyromania," as a moral
disease, coexistent Avith mental sanity .^

§ 612. We must therefore conclude that to give legal validity to
Insanity pyromania as a defence, substantive derangement should
must be \)q shown. This results from the positions (1) that special

shown to . . .

make it a propensities are not regarded as in the legal sense con-
stituting insanity, unless reason is disordered by disease ;^
and (2), that aside from the psychological question, law is ordained
for the very purpose of checking such propensities, and preserving
the community from devastation.^ In these conclusions the highest
medical authorities unite. ^

[§§ 613, 614 are omitted in this edition for the purpose of con-
densation.']

§ 615. " At the meeting of the Vienna Society for Psychiatre,
Analysis of ^^ January, 1871, Dr. Flechner indorsed the opinion of

cases by Ideler, who considers pyromania an abstraction, of which
Dr. Flecli- ' , ^' ■,■,,.

nerdis- the judicial physician has no need, and the views of
doctrr^e of Casper, Griesinger, Jessen, and Lien, who are of opinion
pyromania. ^]^^^ arson, when committed by insane persons, may be
explained as we explain any of their other acts. Dr. Flechner has
come to this conclusion, not only from an unbiassed reading of the

' Cases of pyromania, as an incident ^ See Neue Sammlung Gerichtsart-

of insanity, are given in Friedreich's licher Grutacliten aus den Verhaud-

Blatter for 1870, p. 33, and for 1871, p. lungen der Prager Medicinischen

262. See also 19 Journ. Med. Sci. Facultat. 1858.

456. ■ See also translation of Jessen's work

2 See supra, §§ 146-161. on Brandstiftung in 19 Am. Jour, of

3 Supra, §§ 146-161. Ins. 163, 286, 434.
* Supra, §§ 188-403.

502

PTROMANIA. [§ 615.

believers in pyromania, but also from studying the cases that have
come under his observation during his thirteen years' experience as
judicial physician. He insists that there has never come a case
under his notice that seemed to justify the recognition of a form of
insanity that could consistently be characterized as pyromania.

" Of the eleven cases Dr. Flechner had observed, seven were
males and four females ; eight were between fifteen and twenty-five,
and three were more than thirty years of age ; eight were peasants,
one was a wagon-maker, one a baker, and one a clerk.

" Case I. — A young man who was pursued by the idea that he
would induce his father to comply with an absurd demand by burn-
ing the house down.

" Case II. — Hallucinations were present which led to arson as a
means of getting money.

" Case III. — An act of revenge for an imagined wrong.

" Case IV. — Originally weak-minded ; in consequence of intem-
perance in drinking, insane.

" Case V. — An act of revenge and maliciousness ;' the perpe-
trator weak-minded, and not conscious that the deed was punishable.

" Case VI. — An idiot was hired to set fire to a house I'or a few
kreutzers.

" Case VII. — An idiot was persuaded, by a malicious woman, to
fire a house.

" Case VIII. — Arson as a consequence of hatred and revenge.
Perpetrator was idiotic and insane.

" Case IX. — A sane but demoralized person. Committed arson
five times from malice.

" Case X. — Melancholy, with a feeling of anxiety, tired of life,
and increase of these conditions at the period of menstruation ; at-
tempt at suicide and arson in consequence of an impulse to do
something to get rid of the feeling of anxiety, and to change her
place of service.

" Case XL — That of an idiot, wholly incapable of distinguishing
between right and wrong. "^

The theory that this impulse (Brandstiftungstrieb) is often a con-
comitant of the first development of puberty, has led to a series of
very interesting essays by Landsberg.^

' 5 Journ. Psyc. Med. 605. mann, Vezin (Aerztliches Oberguta-

2 Ueber die Feuerschausucht, Her- chen iiber den Gemiithszustand der

503

§ 616.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

§ 616, In the case of William Spear, who was tried for arson,

in 1858, at Utica, before Judge Allen, of the supreme

andpsj'cho- court, pjromania was interposed as a defence. The

Tm-omania weight of medical testimony, however, was against the

has no ex- defence, and the iury Avere so charged by the court. In
istence. j ./ n ./ ^

the course of the charge, Judge Allen said : " The ex-
istence of the impulsive mania could only be proved by the commis-
sion of the acts which it was sought to excuse, which would be no
evidence at all ; and the jury could never know, even should it be
conceded that such a ' moral mania' might and did exist, whether,
in a particular case, the acts were the result of this impulse or the
fruits of a wicked and depraved mind. Courts and juries, in the
attempt to determine the existence of moral mania, or irresistible
impulse, apart from mental disturbance and derangement, as evi-
denced by the well-known symptoms of mental diseases, as an ex-
cuse for crime, would become bewildered and lost in the labyrinth
of scientific niceties and fanciful theories. But when called upon
to consider the subject of insanity, regarded as a derangement of
the intellect, a mental disease, or the manifestations of disease
affecting the mind, whether the moral powers were or were not im-
paired or perverted, they were not entirely without the means of
arriving at a satisfactory conclusion, with the aid of intelligent
and experienced medical men, and in the exercise of their good
judgment."

The judge then commented upon the evidence bearing upon the
question of the insanity of the prisoner in detail, and suggested
that " the medical witnesses, who favored the idea of the insanity
and consequent irresponsibility of the accused, appeared to think
that the particular form of the disease resembled that called pyro-
mania, which was evinced by a morbid propensity to incendiarism,
and which it was claimed existed when a person otherwise rational
was impelled irresistibly to the commission of this crime ; that this
case was open to remark in this particular, that in every instance in
which the prisoner had fired a building, the act was traceable to

sich. wegen Brandstiftung in Unter- striebes). See an interesting case of

suchung befindenen) ; Hofling (Die alleged pyromania in State v. Green-

Lehrevomkrankhaften Brandstiftung- wood, reported in 5 Am. Journ. of

striebe) ; and Meding (Ein Nachtrag Insan. 237.
zu d<^m Gespenst des Brandstiftung-

504

EROTOMANIA. [§ 617.

motives of hatred, and a desire for revenge upon some individual for
an act, really committed by that individual, oflfensive to the prisoner.
When every act of incendiarism could be traced directly to a motive
which Avould be influential with a had man, and such as not unfre-
quently, if not ordinarily, influenced men in the commission of like
crimes, and when in no instance the torch had been applied from
mere love of burning, it would not be safe to excuse the party,
simply because the motive might, to the jury, seem inadequate.
So long as there was no delusion, no loss of memory and judgment,
and the party sought the very usual method of wicked men to gratify
revenge, and resorted to the same means to conceal the evidences
of his crime, he should not be excused upon any theory of moral
insanity, or by reason of any sympathy, which would be entirely
misplaced." The judge then submitted the case to the jury, with
the remark that it was their peculiar province to determine whether
or not the " prisoner was, within the rules thus imperfectly laid
down, responsible for the act, and therefore guilty of arson. "^

Not merely juridically, therefore, but psychologically, must we
conclude that " pyromania" has no existence as a specific and inde-
pendent form of insane irresponsibility.

4. ^^ Erotomania' ^ '•'■ aidoiomania''^ (morbid sexual propensity).

§ 617. There are certain marked features which distinguish the
sexual passion from other natural instincts: —

First, it diminishes, while most other appetites, e. g., passion
hunger, intensify, on repression. It is, therefore, capa- f,!om"other
ble, which they are not, of restraint by the avoidance of natural

. *^ instincts.

stimulatmg causes.

Second, it is, with sane persons, accompanied by an instinctive
sense of shame. The coarsest peasant, who would answer other
natural calls in the market place without ablush, seeks for darkness
and concealment in order to satisfy the sexual instinct. Where
this sense of shame exists, so that the passion is subjected to it, we
can scarcely speak of the passion as irresistible. On the other
hand, where there is no sense of shame, we can scarcely speak of
the condition as one of sanity.

• See supra, §§ 146-161.

505

§ 619.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

§ 618. No doubt there are several forms of insanity in which

the sexual feeling is disproportionately excited, and no

birsexuai doubt undue sexual indulgence is provocative of insanity.

insanity But there is no sound authority, either psychological or

imposfeible. , ... ••, , ,.

judicial, to maintain the position that there can be irre-
sponsible insanity of the sexual feelings in a person otherwise
sane.^

§ 619. Marc, to whose unphilosophical enthusiasm for classifica-
tion we owe the existence of so many " monomanias,"
those in gives the name of aidoiomania to the excess of the sexual
doctrine *^^ impulse, which is called satyriads when it occurs in the
male, and yiympliomania, or uteromania, in the female.
This abnormal propensity occurs as a symptom of mania, lunacy,
and depression, as well as of imbecility with maniacal excitements,
but is also, he declares, found coupled with freedom of reason and
of self-control ; in which case, on the reasoning already given, the
responsibility of the agent is not suspended. How far the court,
in administering the punishment, is to allow for the circumstance
that the individual was carried away in an extraordinary manner
by the physical impulse and the external incitement, is a matter for
independent consideration.

" Morbid activity of the sexual propensity," says Dr. Ray, " is
unfortunately of such common occurrence, that it has been generally
noticed by medical writers, though its medico-legal importance has
never been so strongly felt as it deserves. This affection, in a state
of the most unbridled excitement, filling the mind with a crowd of
voluptuous images, and ever hurrying its victims to acts of the
grossest licentiousness, though without any lesion of the intellectual
powers, is now known and described by the name of aidoiomania.
We cannot convey a better notion of the phenomena of this disorder,
than by quoting a few examples from Gall, by whom it was first

' See on this topic an interesting on Nymphomania will be found in Diet,

article by Dr. R. L. Parsons, in 5 des Sciences M6d. von Louyer, Viller-

Journ. Physc. Med. 456. See also may, tome xxxvi. p. 561. See a case

Siebold's Gericht. Med. § 210. An in- of puerperal mania of this class, Rep.

teresting case of Uterine Furor will be Am. Journ. Obst. for 1880, 154 ; and

found in El. v. Siebold's Journ. vol. see a case of erotic delusion, in 22

vi. p. 943. See also a case in Henke's Journ. Ment. Sci. 439.
Zeitschr. 41, p. 393. A very able essay

506

EROTOMANIA. [§ 620.

extensively observed and its true nature discovered. Its milder
forms and early stages, when not beyond the control of medical and
moral treatment, are illustrated in the following cases : —

" A robust and plethoric young man came to reside in Vienna.
Having no liaisons, he was unusually continent, and was soon
attacked with erotic mania. Gall, pursuing the treatment indicated
by his peculiar views of the origin of the disease, succeeded in
restoring him in a few days to perfect health."

" A well-educated, clever young man, who, from his infancy
almost, had felt strong erotic impulses, succeeded in controlling
them to a certain extent by means of equally strong devotional
feelings. After his situation permitted him to indulge without
constraint in the pleasures of love, he soon made the fearful dis-
covery, that it was often difficult for him to Avithdraw his mind
from the voluptuous images that haunted it, and fix it on the im-
portant and even urgent concerns of his business. His whole being
was absorbed in sensuality. He obtained relief by an assiduous
pursuit of scientific objects, and by finding out new occupations."
But, if he could obtain " relief" by study, it is hard to see why the
" mania" was viewed as " irresistible ;" and the case, therefore, is
open to the same criticism as others from the same source which
are invoked so constantly as proof-cases of " monomania." Gall,
with all his charms of style, was rather a gossippy and inconclusive
anecdotist, than an accurate and exhaustive narrator of facts. ^

Pinel gives the following : "A man had creditably filled his
place in society till his fiftieth year. He was then smitten with an
immoderate passion for venereal pleasures ; he frequented places of
debauchery, where he gave himself up to the utmost excesses, and
then returned to the society of his friends, to paint the charms of
pure and spotless love. His disorder gradually increased ; his
seclusion became necessai*y ; and he soon became a victim of furious
mania." This, however, is a clear case of mental derangement.

§ 620. Uterine causes, in women, are largely concerned in pro-
ducing this disease, as a phase of derangement. Women
whose character has heretofore been of unsuspected purity biiity
and of fastidious refinement, indulge in loose conversa- ^y'heiract is
tion, if they do not give way to loose desires. Some- the result

, "^ . . . of physical

times this connects itself with abnormal appetites ; some- causes.
' See supra, § 593, note.

507

§ 622.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

times with unnatural sexual abhorrences, as well as with sexual
desires. These disorders may be periodical with menstruation ; or
thej may accompany the change of life coincident with stoppage of
menstruation ; or they may flow from distinct uterine disease. But
however this may be, just so far as the act under investigation is
the result of physical causes, so far does the patient cease to be
morally responsible.^

§ 621. Under this head may be considered those cases of morbid
erotic impulses which spend themselves on unnatural
of morbid objects. The more common of these are those which
puises^"^' the domestic history of classic antiquity makes familiar
to us, and which St. Paul adverts to in the first chapter
of the Epistle to the Romans. To what extent these unnatural
passions were carried is illustrated by the paintings in at least one
of the exhumed chambers of Pompeii. And recent trials have
shown, that if the same morbid developments are less numerous at
the present day, they are at least equally eccentric.

Some years since the town of Leipsic was startled by the fact
that a number of young girls had been assaulted in the streets, by
a man wrapped in a cloak, who struck a lancet in their arms, just
above the elbow, and then vanished. It was a long time before the
perpetrator was discovered. When he was at last detected and put
on trial, it turned out that he had been impelled to these outrages
by a morbid sexual impulse — that the incision of the lancet had
been accompanied with seminal emission — and that his whole exist-
ence had become absorbed in the alternate excitement and depres-
sion which preceded and succeeded the act.^

The same state of facts was developed in the trial, in London, of
a man named Williams, for a similar species of assault.^

In the same line is the case of Sprague, already cited.*

§ 622. Still more startling were the exposures attending the trial
of a sergeant in the French army, in 1848. For some time pre-
vious, dead bodies had been exhumed and had been torn to pieces
at or near the graves. On closer inspection the horrible fact was

' See on this subject Dr. Storer's * Wharton's Cr. Law, § 824. Supra,

very valuable treatise on " Insanity in § 573.

Women," Boston, 1871, and authori- ^ Lawyer's Magazine, London, 1792,

ties cited supra, note 1, p. 506. vol. ii. p. 351.

* Supra, § 573, note 2, p. 470.

508

EROTOMANIA. [§ 624,

disclosed that sexual connection had been attempted with the female
corpses. The guilty party turned out to have been a young man
scarcely twenty-five, of prepossessing manner and appearance, and
otherwise respectable character. The psychological features were
the same as in the preceding cases. The act was preceded by
uncontrollable excitement, and followed by great exhaustion.^

§ 623. Fodere tells us of a young monk who, in travelling, hap-
pened to lodge in a house Avhere a young woman, who was thought
dead, had just been laid out, and offered to pass the night in the
chamber where the coffin was, and to watch the dead. During the
night, having uncovered it for the purpose of examination, and still
finding in her countenance some traces of beauty, he determined to
satisfy his lust, although the object was not in a condition for
exciting desire. Nevertheless he satisfied himself, and departed
early in the morning. The dead person came to life, however, the
next day, and nine months afterwards had a child, to the great
astonishment of herself and parents. The monk about this time
arrived in the same place, and avowed himself the parent of the
child, and married the mother after throwing off the vows, which
he proved he had been forced to pronounce.

§ 624. The following fact, taken from Bri^rre de Boismont,
shoAvs a more permanent perversion, and reveals a settled patho-
logic degradation. A man was arrested in a small town for a crime
which no one believed, but which, however, was proved at the trial.
A girl, sixteen years old, belonging to one of the best families
of the town, had just died. A part of the night had passed,
when the noise of a piece of furniture falling in the room where
the dead person lay was heard. The mother, whose chamber was
next to it, immediately ran there, and, in entering, saAV a man
escaping in his shirt from the bed of her daughter. Her fright
caused her to utter loud cries, which brought around her all the
persons of the household. They seized the intruder, who appeared
almost insensible to everything passing around him, and who an-
swered but confusedly to the questions addressed him. The first
idea was that it was a robber ; but his dress and certain signs
directed suspicion in another direction, and it was soon perceived
that the girl had been polluted when lying dead in her bed. It

• Journal of Psycliological Med., vol. ii. p. .577.

509

§ 626.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

was proved that the guard had been bribed ; and soon other revela-
tions showed that this was not the first time the prisoner, who had
received a good education, was in easy circumstances, and belonged
to a good family, had performed the act. The trial proved that he
had frequently before gained access to the bed of dead young
women, and there given himself up to his detestable passion.^

§ 625. Psychologically, it is scarcely necessary here to repeat
B tth what has been demonstrated as to other pretended

must pro- "monomanias," that there is no such form of insanity
ceed from .55 • • r- • • f n ^

general in- as " erotomania, consisting ot insanity 01 the sexual

they^couM impulses, all the rest of the individual so alfected re-
be resisted, gaining sane. No doubt sexual anomalies are constant
incidents of insanity, and for them an insane person is not penally
responsible. But in all cases where the mind is sane, the ofi'ender
against laws prohibiting sexual offences is, on ethical as well as
psychological and juridical grounds, to be held penally responsible.
And this results from the position, heretofore fully sustained.^ that
wherever there is reason there is responsibility, and wherever there
is responsibility, crime should be punished in proportion to the grade
of guilt.

5. '■'-Pseudonomania''^ Qniorhid lying propensity').

§ 626. By what process that which in its elementary stage is a
mere nearation, i. e. the incapacity so generally notice-

Lnreason- o ' x ./ o j ^ ^

able to con- able in very young children of accurate narration, is
a distinct concluded to be a mania, it would be difficult to say.
mama. -g^^ ^^ -^ ^^^ ^^^ ^^ -^ ^j^^^ tendency defined by Dr.

Ray.^ " An inordinate propensity to lying" " is also of no un-
common occurrence in society ; and most of the readers of this
work have probably met with instances of it in people whose morals
in other respects were irreproachable, and whose education had not
been neglected. The maxim of Jeremy Bentham, that it is easier
for men to speak the truth, and therefore they are more inclined
to do so than to utter falsehood, seems, in them, to be completely
reversed, for they find nothing more difficult than to tell the truth.

> See Renaudin sur les Maladies Men- ^ gupra, §§ 115, 188, 403.
tales, p. 764, Paris, 1854. ^ Ray on Insanity, p. 193.

610

PSEUDONOMANIA. [§ 627.

In repeating a story which they have heard from others, they are
sure to embellish it with exaggerations and additions, till it can
scarcely be recognized, and are never known to tell the same story
twice alike. Not even is the slightest groundwork of truth neces-
sary, in order to call forth the inventions of perverted minds, for
they as often flow spontaneously, in the greatest profusion, as when
based on some little foundation in fact. This propensity seems to
result from an inability to tell the truth, rather than from any other
cause, as it can be traced to no adequate motive, and is often in-
dulged when truth would serve the interest of the individual better.
Like that last mentioned, it is liable to degenerate into unequivocal
mania, of which it is sometimes a preliminary symptom, and is also
quite a common feature in this disease — a circumstance which Rush
considers as proof of its physical origin."

§ 627. Dr. Rush more philosophically traces this habit, for such
it should be more properly called, to self-indulgence in The habit is
untruth. " There are many instances of persons of '^oiuitary.
sound understandings, and some of uncommon talents, who are
affected with this lying disease in the will. It diifers from excul-
pative, fraudulent, and malicious lying, in being influenced by none
of the motives of any of them. Persons thus diseased cannot speak
the truth upon any subject, nor tell the same story twice in the
same way, nor describe anything as it has happened to other people.
Their falsehoods are seldom calculated to injure any body but them-
selves, being for the most part of a hyperbolical or boasting nature ;
but now and then they are of a mischievous nature, and injurious
to the characters and property of others. That it is a corporal dis-
ease I infer from its sometimes appearing in mad people who are
remarkable for veracity in the healthy states of their minds, several
instances of Avhich I have known in the Pennsylvania Hospital.
Persons aflected with this disease are often amiable in their tempers
and manners, and sometimes benevolent and charitable in their dis-
positions. Lying as a vice is said to be incurable. The same thing
may be said of it as a disease, when it appears in adult life. It is
generally the result of defective education. It is voluntary in
cliildJiood, and becomes involuntary , like certain muscular actions^
from habit. Its only remedy is bodily pain inflicted by tlie rod, or
confinement, or ahsti^ience from food ; for children are incapable

511

§ 630.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

of being permanently influenced by appeals to reason, natural
affection, gratitude, or even a sense of shame. "^

§ 628. No doubt the insane are irresponsible for the untruths
they state, when such untruths are involuntary, e. g. the
sane are result of delusion ; but that they can be rightly made
^^^vohln-^ responsible for voluntary untruths, and by correction
r''th^°' ^^y ^® checked in the utterance of such untruths, the
ordinary discipline of lunatic asylums shows.
§ 629. But with the sane, while it is unquestionable that false-
hood may become a habit, yet, like all other bad habits,
not create no matter how inveterate, it brings with it no irrespon-
iwntY°°^^' sibility. Were it otherwise, a chief motive in preventing
the habit from becoming fixed would be removed ; and,
in fact, a powerful stimulus given in the other direction. The law
would then virtually say, " learn to lie — let the habit become in
curable — and then you can get goods by false pretences without
any danger of punishment ; and even to an action for restitution or
for damages, you can plead that you are irresponsible, and there-
fore protected against suit." But the law says no such thing. It
sternly but wisely declares that every sane man is responsible,
criminally and civilly, for his statements ; and, if he is habitually
false, this " habit," in a criminal suit, is only viewed as aggravat-
ing his guilt. Truthfulness among sane persons, when not actually
existing, must be created by the force of general penal laws.^

6. ^' OiJceiomania'^ (morbid state of domestic affections).

§ 680. At the outset it is proper to state that while this state is
often a sign of general insanity, it has no existence,
description either in sound psychology or law, as an independent
"^mania." " monomania." Of this, in its general shape, Prichard
thus speaks : " There are many individuals living at
large, and not entirely separated from society, who are affected in
a certain degree by this modification of insanity. They are re-
puted persons of singular, wayward, and eccentric character. An
attentive observer may often recognize something which leads him
to entertain doubts of their entire sanity ; and circumstances are
sometimes discovered, on inquiry, which assist in determining his

! Rush on the Mind, p. 262. « See supra, §§ 115, 188, 403.

512

OIKEIOMANIA. [§ 631.

opinion. In many instances it is found that there is an hereditary
tendency to madness in the family, or that several relatives of the
person affected have labored under disease of the brain. The in-
dividual himself is discovered, in a former period of life, to have
sustained an attack of madness of a decided character. His temper
and disposition are found, on inquiry, to have undergone a change,
to be not what they were previously to a certain time ; he has
become an altered man ; and this difference has perhaps been noted
from the period when he sustained some reverse of fortune which
deeply affected him, or since the loss of some beloved relative. In
other instances the alteration in his character has ensued immedi-
ately on some severe shock which his bodily constitution has under-
gone. This has either been a disorder affecting the head, a slight
attack of paralysis, a fit of epilepsy, or some fever or inflammatory
disorder, Avhich has produced a perceptible change in the habitual
state of the constitution. In some cases the alteration in temper
and habits has been gradual and imperceptible, and it seems only
to have consisted in an exaltation or increase of peculiarities which
were always more or less natural and habitual."^

§ 631. Very often this domestic perversity is associated with the
most complacent benignity out of doors. Zimmerman,
whilst he was inculcating and professing the most perversity
serene benevolence, was, by his tyranny, driving his cfated^wlth
son into madness, and making his daughter an outcast social ur-

, '^ ^ banity.

from home. Goethe — no inapt observer of human na-
ture— says, " Zimmerman's harshness towards his children was the
effect of hypochondria — a sort of madness or moral assassination to
which he himself fell a victim after sacrificing his offspring."^

■ Cited, Ray on Insanity, pp. 16&-9. rangement of the domestic affections.

See Feuclitersleben's views on this By the indulgence of this morbid ten-
point. Principles of Medical Psycho- dency to torture the object of his most
logy, being the outlines of a Course of cherished love, he first succeeded in
Lectures by Baron von Feuchtersleben, crushing under the weight of despair
M.D., Vienna, 1845. Translated from a woman whom he really loved, and
the German by the late H. Evans then, by the recoil, in subjecting him-
Lloyd, Esq. Revised and edited by self to that most miserable of all fates,
G. B. Babington, M.D., F.R.S., etc. that of an insane old age. Take, as a
London : printed for the Sydenham scene in the first awful drama, the fol-
Society, 1847, p. 204. lowing narrative by Mr. Sheridan : "A

2 Dean Swift's life furnishes a strik- short time before Stella died," says

ing illustration of this species of de- he, "a scene passed between the Dean

VOL. I. — 33 513

§ 632.] MENTAL UNSOUNDNESS CONSIDERED PSYCflOLOGIOALLT.

§ 632. Illustrations of this phase will be found in the following
sections. At present it is sufficient to call attention to one feature,

and her, an account of which. I had
from my father, and which I shall re-
late with reluctance, as it seems to bear
more hard on Swift's humanity than
any other point of his conduct in life.
As she found her' final dissolution ap-
proaching, a few days before it hap-
pened, in the presence of Dr. Sheridan,
she addressed Swift in the most earnest
and pathetic terms to grant her dying
request, ' that, as the ceremony of
marriage had passed between them, in
order to put it out of the power of
slander to be busy with her fame after
death, she adjured him, by their
friendship, to let her have the satis-
faction of dying, at least — though she
had not lived — liis acknowledged wife.'
Swift made no reply, but, turning on
his heel, walked silently out of the
room, nor ever saw her afterwards
during the few days she lived. This
behavior threw her into unspeakable
agonies, and for a time she sunk under
the weight of so cruel a disappoint-
ment."

No wonder was it that, when under
the influence of the remorse which was
too late awakened, his powerful sen-
sibilities were aroused to the full con-
sciousness of his guilt, he would beat
his forehead for night after night, and
stride to and fro in his deserted apart-
ment, until at last the only change
became that from delirium to melan-
choly, and from melancholy to de-
lirium. Dr. Winslow gives us the
following glimpses of the closing
scenes : —

"The most minute account of this
melancholy period is given by Dr.
Delaney : —

" 'In the beginning of the year 1741
his understanding was so much im-
paired, and his passion so greatly iia-

514

creased, that he was utterly incapable
of conversation. Strangers were not
permitted to approach him, and his
friends found it necessary to have
guardians appointed of his person and
estate. Early in the year 1742 his
reason was wholly subverted, and his
rage became absolute madness. The
last person whom he knew was Mrs.
Whiteaway, and the sight of her, when
he knew her no longer, threw him into
fits of rage so violent and dreadful,
that she was forced to leave him ; and
the only act of kindness that remained
in her power was to call once or twice
at the deanery to inquire after his
health, and see that jiroper care was
taken of him. Sometimes she would
steal a look at him when his back was
towards her, but did not venture into
his sight. He would neither eat nor
drink when the servants were in the
room. His meat, which was served up
ready cut, he would sometimes sufi'er
to stand an hour upon the table before
he would touch it, and at last he would
eat it walking, for during this miser-
able state of mind it was his constant
custom to walk ten hours a day.

" ' In October, 1742, after his fi-enzy
had continued several months, his left
eye swelled to the size of an egg, and
tlie lid appeared to be so much inflamed
and discolored, that the surgeon ex-
pected it would mortify ; several large
boils also broke out on liis arms and
body. The extreme pain of this tumor
kept him waking near a month ; and
during one week it was with difficulty
that five persons could prevent him
from tearing out his eyes. Just before
the tumor perfectly subsided and the
pain left him, he knew Mrs. White-
away, took her by the hand, and spoke
to her with his former kindness ; that

OIKEIOMANIA. [§ 633.

which is thus admirably sketched by Dr. Mayo : " Marital un-
kindness is subversive of soundness of mind in the person on whom
it is exercised ; and exercised it is in a thousand ways in this
country, without violence being had recourse to. The state of the
law, as Mr. Dickens well observes and terrifically proves, is unpro-
tective of wives. But the mischief is not unavenged ; and here
the case of the husband retributively commences. Many men are
living in a state of continuous and exhausting remorse, under the
consciousness that this system of torture is being carried on by
them. For, when once the habit is formed, they can neither shake
it off, nor bear their self consciousness under it.

' Culpam poena premit comes.'

I need not speak of their retrospects, if they should outlive the
object of their tyranny."^

§ 633. '^A very common feature of moral mania," says Dr.
Winslow, " is a deep perversion of the social affections,
whereby the feelings of kindness and attachment that of this
flow from the relations of father, husband, and child, are ™'^"^^-
replaced by a perpetual inclination to tease, worry, and embitter
the existence of others. The ordinary scene of its manifestations
is the patient's own domestic circle, the peace and happiness of
which are effectually destroyed by the outbreakings of his ungovern-
able temper, and even by acts of brutal ferocity. Frederick Wil-
liam of Pi'ussia, father of Frederick the Great, undoubtedly labored
under this form of moral mania ; and it furnishes a satisfactory ex-
planation of his brutal treatment of his son, and his utter disregard
for the feelings or comfort of any other member of his family.
About a dozen years before his death, his health gave way under

flay and the following he khew his difficulty, he prevailed on to walk
physician and surgeon and all his across the room. In this state of hope-
family, and appeared to have so far less imbecility he is said to have re-
recovered his understanding and tem- mained silent a whole year. In 1744
per, that the surgeon was not without he spoke once or twice to his servant,
hopes that he might once more enjoy after which he remained perfectly
society and be amused with the com- silent until the latter end of October,
pany of his old friends. This hope, 1745, when he expired, in the 78th
however, was but of short duration; year of his age.' "

for a few days afterwards he sank into ' Mayo on Medical Testimony in

a state of total insensibility, slept Lunacy, pp. 137, 138.
much, and could not, without great

515

§ 633.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

his constant debauches in drunkenness ; he became hypochondriacal,
and redoubled his usual religious austerities. He forbade his family
to talk of any subject but religion, read them daily sermons, and
compelled them to sing, punishing with the utmost severity any in-
attention to these exercises. The prince and his elder sister soon
began to attract a proportionate share of his hostility. He obliged
them to eat and drink unwholesome or nauseous articles, and even
spit in their dishes, addressing them only in the language of invec-
tive, and at times endeavoring to strike them with his crutch. About
this time he attempted to strangle himself, and would have accom-
plished his design had not the queen come to his rescue. His bru-
tality towards the prince arrived to such a pitch, that he one morn-
ing seized him by the collar as he entered his bed-chamber, and
began to beat him with a cane in the most cruel manner, till obliged
to desist from pure exhaustion. On another occasion shortly after,
he seized his son by the hair, and threw him on the ground, beat-
ing him till he was tired, when he dragged him to a window, appa-
rently for the purpose of throwing him out. A servant, hearing
the cries of the prince, came to his assistance, and delivered him
from his hands. Not satisfied Avith treating him in the most bar-
barous manner, he connived at the prince's attempts to escape from
his tyranny, in order that he might procure from a court-martial a
sentence of death ; and this even he was anxious to anticipate by
endeavoring to run him through the body with a sword. Not suc-
ceeding in procuring his death by judicial proceedings, he kept him
in confinement, and turned all his thoughts towards converting him
to Christianity. At this time, Ave first find mention of any delusion
connected Avith his son, though it probably existed before. In his
correspondence with the chaplain to whom he had intrusted the
charge of converting the prince, he speaks of him as one who had
committed the most heinous sins against God and the king, as hav-
ing a hardened heart, and being in the fangs of Satan. Even after
he became satisfied with the repentance of the prince, he showed
no disposition to relax the severities of his confinement. He was
kept in a miserable room, deprived of all the comforts and many of
the necessaries of life, denied the use of pens, ink, and paper, and
allowed scarcely food enough to prevent starvation. His treatment
of the princess was no less barbarous. She was also confined, and
every eiFort used to make her situation thoroughly wretched ; and
516

OIKEIOMANIA. [§ 634.

though, after a few years, he relaxed his persecution of his children,
the general tenor of his conduct towards his family and others
evinced little improvement in his disorder till the day of his death. "^

§ 634. The wife of John Wesley was affected with this " mono-
mania ;" or, to speak more properly, was in the habit of giving way
to a vicious and perverse temper, which brought its retribution at
last in the misery it inflicted on herself. " The worst part of
Mrs. Wesley's conduct," says Watson, in his life of Wesley, " and
which only the supposition of a degree of insanity, excited by
jealousy, can palliate, was that she interpolated several letters,
which she had intercepted, so as to make them bear a bad construc-
tion ; and, as Mr. Wesley had always maintained a large corre-
spondence with all classes of persons, and among others with pious
females, in some of whose letters there were strong expressions of
Christian affection, she availed herself of this means of defaming
him. Some of these she read to different persons in private, and
especially to Mr. Wesley's opponents and enemies, adding ex-
tempore passages in the same tone of voice, but taking care not to
allow the letters themselves to be read by the auditors ; and in one
or two instances she published interpolated or forged letters in the
public prints. How he conducted himself amidst these vexations,
the follovv'ing passage in a letter from Miss Wesley to a friend,
written a little before her death, will show. They are at once
important, and explanatory of the kind of annoyance to which this
unhappy marriage subjected her uncle, and as containing an anec-
dote strongly illustrative of his character: —

" I think it was in the year 1775, my uncle promised to take me
with him to Canterbury and Dover. About this time Mrs. Wesley
had obtained some letters which she used to the most injurious pur-
poses, misinterpreting spiritual expressions, and interpolating words.
These she read to some Calvinists, and they were to be sent to the
Morning Post. A Calvinist gentleman, who esteemed my father
and uncle, came to the former, and told him that, for the sake of
religion, the publication should be stopped, and Mr. Wesley be
allowed to answer for himself. As Mrs. Wesley had read but did
not show the letters to him, he had some doubts of their authen-
ticity ; and though they were addressed to Mr. John Wesley, they

' Vide Lord Dover's Life of Frederick ; Winslow's Anatomy of Suicide, pp.
233, 234, 235.

517

§•634.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

might be forgeries ; at any rate he ought not to leave town at such
a juncture, but clear the matter satisfactorily.

" My dear father, to whom the reputation of my uncle was far
dearer than his own, immediately saw the importance of refutation,
and set off to the Foundery to induce him to postpone his journey,
while I, in my own mind, was lamenting such a disappointment,
having anticipated it with all the impatience natural to my years.
Never shall I forget the manner in which my father accosted my
mother on his return home. ' My brother,' says he, ' is indeed an
extraordinary man. I placed before him the importance of the
character of a minister ; the evil consequences which might result
from his indifference to it ; the cause of religion ; stumbling-blocks
cast in the way of the weak ; and urged him by every relative and
public motive to answer for himself, and stop the publication. His
reply was. Brother, when I devoted to God my ease, my time, my
life, did I except my reputation ? No. Tell Sally I will take her
to Canterbury to-morrow.' "

" I ought to add, that the letters in question were satisfactorily
proven to be mutilated, and no scandal resulted from his trust in
God.

" Some of these letters, mutilated, interpolated, or forged by
this unhappy woman, have got into different hands and are still
preserved. In the papers of the Wesley family, recently collected,
there are, however, sufiBcient materials for full explanation of the
whole case in detail ; but as Mr. Wesley himself spared it, no one
Avill, I presume, ever further disturb this unpleasant affair, unless
some publication on the part of an enemy, for the sake of gain, or
to gratify a party feeling, should render it necessary to defend the
character of this holy and unsuspecting man."^

1 The following is the inscription on a monument erected in Horsley Down
church, in Cumberland, England : —

Here lie the bodies of

Thomas Bond and Mary his wife.

She was temperate, chaste, and charitable.

But

She was proud, peevish, and passionate.

She was an affectionate Avife, and a tender mother.

But

Her husband and child whom she loved, seldom saw her countenance without a

disgusting frown.
Whilst she received visitors whom she despised, with an endearing smile.

518

OIKEIOMANIA. [§ 635.

This species of insanity, supposing mental derangement to be
substantively proved, will invalidate a will made under its imme-
diate influence.^

§ 635. It is hardly necessary to repeat that " morbid domestic
feeling" is not to be viewed as a distinct " monomania," capable of
psychological proof as such. Frequently it is a mark of insanity.

Her behavior was discreet towards strangers,

But

Imprudent in lier family.

Abroad her conduct was influenced by good breeding,

But

At home by ill temper.

She was a professed enemy to flattery, and was seldom known to praise or commend ;

But

The talents in which she principally excelled

Were difference of opinion, and discovering flaws and

Imperfections.

She was an admirable economist,

And without prodigality.

Dispensed plenty to every person in her family.

But

Would sacrifice their eyes to a farthing candle.

She sometimes made her husband

Happy with her good qualities,

But

Much more frequently miserable with her

Many failings.

Insomuch that in thirty years' cohabitation,

He often lamented that

Maugre all her virtues,

He had not on the whole enjoyed two years

Of matrimonial comfort.

At length

Finding she had lost the affection of her husband, as well as the regard of her

neighbors, family disputes having been divulged by servants.

She died of vexation, July 20, 1768,

Aged 48 years.

Her wornout husband survived her four months and two days, and departed this life

November 28, 1768,

In the 54 year of his age.

William Bond, brother to the deceased.

Erected this stone as a

Weekly monitor to the wives of this parish.

That they may avoid the infamy of having

• Their memories handed down to posterity

With a patchwork character.

' See supra, §§ 34-60.

519

§ 636.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

Oikeio- But with sane persons its existence is the just subject
a distinct of moral and social as well as of penal reprobation. It

Tsmnoi ^^^ '^^ ''^'^^ ^^^^ *^® ^'^^^ ^^J ^^ unable to reach the par-
create irre- ticular offences into which this form of evil temper runs.
sponsibility . . • i •

in the sane. It carries With it, however, as has been said, its own
accuser and condemner in the misery to self to which it
leads. And, so far as it exhibits itself in overt acts, the tendency
is one Avhich it is the duty and within the jurisdiction of the state,
by general penal laws, to repress.^

7. ^^ Suicidal mania'^ (inorhid propeymty to self-destruction^.

§ 636. That this propensity may, in the eye of the

law, coexist with sanity, has been already shown.^ To

consistent what -extent suicide avoids a policy of life insurance,

with sanity „ . ,. . o

has been also the subject of prior discussion.'*

Suicidal
propensity

' See supra, §§ 115, 188, 403. For
articles on this topic see Journ. Med.
Leg. Soc. N. Y. (N. Y. 1872) pp. 1-37,
135-143.

2 Supra, § 241.

3 Supra, §§ 228-241.

The constantly increasing occurrence
of suicide particularly attracts the pub-
lic attention at present (1882) . During
the years 1875 to 1878 statistics showed
an average of 280 suicides to every
million inhabitants in Berlin, 285 in
Vienna, 400 in Paris, 450 in Leipsic ;
London, on the contrary, showed a
smaller average than any other great
city — only 85 to a million. The increase
of suicide is illustrated by the fact that
in Berlin in 1881 it is stated not to be an
unusual circumstance for four persons
in one day to die by their own hands.
At present the problem of suicide is be-
ing scientifically examined from differ-
ent points of view. The work of Dr.
Masaryk, " Der Selbstmord als sooiale
Masseuerscheinung, Vienna, 1881,"
and especially the writings of the emi-
nent compiler of moral statistics, Alex-
ander von CEttingen, upon acute and

520

chronic suicide, undertake to prove
that the increase of suicide is a peculiar
result of over-development of culture.
Among the facts which Herr von
CEttingen cites, one is especially wor-
thy of notice — that suicide finds its
greatest number of victims in the king-
dom of Saxony, aiid in the city of
Leipsic, according to CEttingen, "the
Chimborazo of suicide." " People kill
themselves more in Saxony than in
any other part of the earth."

The numbers of suicides increase as
we approach Saxony. In the plains
of Sarmatia the proportion is only 30
in every million, in the Baltic pro-
vinces it increases to 65, in Eastern
and Western Prussia it is almost 100,
in Brandenburg 200, in the Saxon
provinces 235, and in the kingdom of
Saxony it is something over 400 in a
million. The average of suicide in-
creases from the south in the same
proportion as it does from the north ;
for instance, in Southern Bavaria, the
average is not quite 70, while in upper
Franconia, which borders on Saxony, it
is between 150 and 160. The greatest

SUICIDAL MANIA. [§ 637.

§ 637. " The pathological and etiological history of suicide,"
says Griesinger, " does not appertain entirely to the pro-

^ ^ , ,. . ■ f . ^ , L • • Suicide not

vince 01 mental medicine ; in tact, whatever certain sci- always a
entitle authorities may assert, we are not warranted in of'fifsanity
coming to the conclusion that suicide is always a symptom
or a result of insanity. There is no insanity present where the
feeling of disgust with life is in exact relation to the actual circum-
stances ; where evident moral causes exist which sufficiently account
for the act ; when the resolution has been deliberately made, and
might have been abandoned had the circumstances changed ; and in
which we discover no other symptom of mental derangement.

" When a man of very delicate feelings puts an end to his ex-
istence, that he may not survive the loss of his honor, or of some
other highly valued possession which forms an intimate part of his
intellectual being — when a man prefers death to a miserable, con-
temptible life, full of mental and physical ills — morality, indeed,
may call him to account for the deed, but there exists no ground
on which we can consider him insane ; the abhorrence of life and
the idea of self-annihilation correspond to the intensity of the pain-
ful impressions which bear upon the individual, and it is after de-
liberate reflection that the act is resolved upon and perpetrated.

" But the cases which come under this category are the rarest ;
more frequently the tendency to commit suicide depends either upon
fully developed melancholia, with all its usual symptoms, or (and
this is more frequent) on a state closely bordering upon melancholia
— of moderate but at the same time general painful perversion of
the feelings.

" The apparently deliberate and cold-blooded act of suicide can,

number of suicides occur in spring and points out that in the comparatively
summer, in May, June, and July, in- nobler causes of despair (such as uu-
stead of in November and December, as happy love, shame, and remorse) the
one would naturally suppose ; the so-called nobler methods are used —
larger proportion are committed be- firearms and poison. In most of the
tween 6 and 8 o'clock in the morning. European states there is one female
Suicides by hanging, which Herr suicide to every three or four male,
von CEttingen calls " the usual means," It is a well-known fact that drunken-
are most frequent in Prussia and ness plays a prominent part in the
Saxony ; the four cases mentioned in statistics of suicide.
Berlin were by this means. CEttingen

521

§ 638.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

Avhen considered 'per se, no more prove the non-existence of insanity
than any other deliberate act committed in mental disease.

" The disposition to originate those states of mental suffering
which most generally coincide with exhaustion, coldness, and dead-
ening of the reaction of the feelings, is precisely the same as the
disposition to mental diseases. When these have once appeared,
they become fixed, and rule the individual the more easily accord-
ing as a feeble ego offers only slight resistance to them (p. 51) ;
they therefore frequently appear as essential result of a previously
weak character. They are, however, essentially distinguished from
the abhorrence of life which is the result of certain explicable moral
causes, by their internal origin, by the want of sufficient moral
causes to account for the act ; frequently by their evident appear-
ance in consequence of some physical disease, by presenting periodic
exacerbations without any moral cause ; and, finally, by being some-
times undoubtedly hereditary. When the whole psychical life is
governed by this perversion of the feelings, there arise no limiting
or restricting ideas and impulses to resist the thought, be it sponta-
neous or suggested, of self-destruction ; or these ideas and impulses
soon become worn out and exhausted, owing to the existence of
those which constantly, and with the persevering obstinacy of all
other melancholic dispositions of this kind, urge themselves upon
the ego.

" Indeed, the more insignificant the outward motives to the deed,
the more likely are we to find, in the antecedent history of the in-
dividual, causes, or even certain symptoms, of incipient insanity ;
and the more barbarous and the more extraordinary the means em-
ployed for the perpetration of the deed, the more are we warranted
in considering it to be a result of some morbid perversion of the
faculties."^

[§ 638 omitted in this edition as merely cumulative.'] '

' See Griesinger's Mental Patliol., tion of the subject of suicide yet pub-

Syden. ed. (1867) § 125; Mende, in lislied (Suicide, etc. International

Henke, Zeitschrift fiir Staatsarrneikunde, Scientific Series, N. Y., 1881).

1821 ; Esquirol, Maladies Mentales, i. p. The result of his researches as to the

p. 555. average of suicides per million of Euro-

The recent work of Dr. Henry Mor- pean populations is as follows : Ger-

selli, of the University of Turin, has mans of the south and centre, or High

immediately been recognized as the Germans, 165; Germans of the north

most thorough and complete investiga- or Low Germans, 150 ; Scandinavians,

522

DIPSOMANIA.

[§ 639.

8. '■'■ Dipsomania''' (niorhid propensity for drink'). (^TruyiksucTit

or Saufsucht.)

§ 639. One of the occasional consequences of an indulgence in
alcoholic drinks is the periodic occurrence of a violent thirst for

128 ; Celto-Romans, i. e., French and
Belgians, 116 ; Anglo-Saxons, 70 ; Mag-
yars, 52 ; Flemings, 50 ; Slavs of the
North, 42 ; Fins, 40 ; Celts, 30 ; Slavs
of the South and Slavonians, 30 ;
Italico-Romans and Latini, 27. Some
individual averages are, however, much
more extreme. Thus the ratio of sui-
cides per million is over 300 in Saxony
and Saxe-Altenburg ; while in Ireland
it is only 10. The statistics as to the
increase of suicides are also given ; and
from all of these the author concludes
that this increase and irregularity are
subject to definite ethnic and anthro-
pological laws. These race influences
seem, however, to be subordinate to
cosmo-natural influences — those of
climate, meteorological changes, length
of day and night, etc., while they are
complicated by social influences. Here
Professor Morselli discovers a propor-
tion between insanity and suicide.
He cites, moreover, Wagner CDie Gesetz-
mdssigkeit in den scheinbar icillkHrlichen,
menschlichen Handlungen, i. pp. 136, 237)
to show the influence of free trade, the
improvement in the means of communi-
cation, as well as of similar and more
apparent causes, upon suicide, conse-
quent on the greater distribution
of money, which has produced an
instability of riches. With these are
taken into consideration the influ-
ences arising from biological and social
conditions of individuals, as well as
the determining motives for the act ;
and an inquiry is also made into the
laws regulating the choice of places
and methods. The theory to which
Professor Morselli is finally led is that
suicide is a phenomenon of evolution

in civilized societies ; that it is the re-
sult of the struggle for existence and
also for human selection ; and that its
cure is to be found in the formation of
character of a higher tyi^e.

It will be noticed that while Pro-
fessor Morselli constructs his theories
by synthetical methods entirely in
sympathy with the methods of modern
materialists, and his criticisms and
analyses are based solely upon abso-
lute facts, in suggesting a remedy he
leaves the domain of science, and re-
cognizes a cure which would have been
prescribed by the theologian or moral
philosopher on ethical principles.
The cure, he says, is preventive : it is
' ' to develop in man the power of well order-
ing sentiments and ideas by v)hich to reach
a certain aim in life ; in short, to give force
and energy to the moral character." That
is to say, the most careful, comprehen-
sive, and unbiassed efl"orts of scientific
genius only reaffirm the value of moral
training, teaching, and aims. Pro-
fessor Morselli really leaves the phe-
nomenon of suicide unexplained ; and
all his research cannot prove the exist-
ence of arbitrary laws that regulate
this phenomenon, if he admits that
their force can be multiplied by the
efl"orts of individual character.

The geographical tables showing the
distribution of suicide ; the tables
showing the proportions as to sex, age,
and occupation ; as to learning and
ignorance — in which connection he
maintains that suicide and education
advance pari passu; and the tables
showing the influence of marriage, are
well worthy of attention. — T. I. W.

523

§ 640.] MENTAL UNSOUNDNESS CONSIDERED PSTCHOLOaiCALLT.
Periodic intoxicating liquor — a thirst which is not satisfied until

craving for • i i i

liquor not the patient has drunk continuously tor one, two, or some-
mon difr-"^' times three days. The passion then subsides, and he
ease. remains sober for weeks, until another attack of the

disease comes on. Liman^ tells us, for instance, of an educated
young man who was employed by a princely family, who had great
confidence in him, as a general manager of their household. He
had charge, among other things, of the wine-cellar, and this led to
his indulgence in wine, which gradually matured into a passion for
strongly alcoholized drinks. About once every three months this
seized him as a sort of rage. He would have baskets of wine,
white beer, and rum brought to his chamber, in which he would at
such times permit visits only from his servant and his physician,
and he would drink for days, under the influence of intoxication,
until disgust and nausea intervened, and drinking lost its zest. He
would then reappear, having been supposed to have been absent on
a short journey, or to have been kept at home by sickness, and
would then, until a new attack came on him, act with perfect so-
briety and self-control. Thus at the table of the prince by w^hom
he was employed he never was suspected of love for drink, and
died without the secret being known. " I never can forget," says
Dr. Liman, who attended him, "his earnest supplications to me to
relieve him from his misery ; and I can say that he was at least
not wanting in good intentions, as well as in moral disgust at him-
self." Multitudes of analogous cases are familiar to those who
have watched social life in America.

§ 640. But is " dipsomania," or periodical paroxysm for drink.
But "dip- a distinct form of insanity? In other words, are the

somania" mind's relations to alcohol such, that a person other-

not a dis- _ . . ^

tinct form wisc sane may be insane as to drink, and consequently

msam y. jj.j.ggpQjjgj,|3jg ^qj. drunkenness and its results ? Of course
these questions are naturally answered in the affirmative by those
alienists who treat the mind as a bundle of independent qualities,
the derangement of either of which does not involve the derange-
ment of the others. On the other hand,^ Ideler, a German psy-

• Liman's Casper, 1871, p. 647. See 2 And see an article in 30 Am.
assays in Proceedings of N. Y. Med. Journ. Ins. 430; see Edinburgh Rev.,
Leg. Soc. CN. Y. 1872), pp. 38, 374. No. cxxxvi. p. 398.

524

DIPSOMANIA. [§ 641.

chological physician of great distinction, treats " dipsomania" as
simplj a bad habit of self-indulgence ; and he adds, if a man is to
be irresponsible for the evil consequences of one bad habit, there is
no reason why he should not be irresponsible for another. He de-
clares that love for drink, whether this love be constant, or oc-
curring in periodical paroxysms, is conquered by force of will ; and
he brings in to show this the statistics of temperance societies,
showing how frequently drunkards have been reformed. He points
to numerous individual cases in Avhich such reforms have been
known. And, indeed, as the disease has been in so many cases
overcome, the duty of government, instead of establishing a privi-
leged class of drunkards, who, by their emancipation from penal
law, would be entitled to indulge in their passion and its conse-
quences without stint, is, it may well be argued, to make drunk-
enness in any shape a criminal oifence, and at the same time pro-
vide asylums where habitual drunkards can be reformed.

§ 641. But in addition to this objection to the recognition of

" dipsomania" as a distinct moral mania, conferring irre-

. • . ... . Analoary

sponsibility on those subject to it, it may be noticed that with other

if we allow such a privilege to thirst for alcohol, we ^pp®^^**^®-
must allow it to an almost endless series of other appetites. The
passion for opium, taking the world through, is as extensive as that
for drink ; it is certainly as powerful and as pernicious. That it
is capable of being reduced by moral influences (e. g. fear of dis-
grace or punishment) does not distinguish it from dipsomania pro-
per, for in the latter moral means have often a marked eff'ect.
Craving for chloroform, we have recently been told, has also become
a powerful mania ; and we have had detailed to us cases in which
this passion is declared to have become " irresistible." Among
less cultivated countries passions for particular forms of food be-
come in like manner despotic ; and among the Esquimaux this is
said to exist in reference to train oil. Even so clear-headed and
energetic a prince as Charles V. had so strong a passion for fish,
that he persisted in indulging in this appetite, though in so doing,
as he was assured by his physicians, he shortened his life, and
subjected himself to much bodily pain. If, as is maintained by the
classifiers of " monomanias," " dipsomania" has its own cell, then
we must have a separate cell for the separate passion for every
particular article of food or drink.

525

§ 643.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

§ 642. But the truth is that " dipsomania," so far as it dis-
. , . , tinctively exists, is a physical rather than a moral

A physical, •> \ . .

not a moral disease.^ There is a craving in these patients, for alco-
holic drinks, as there is in other cases a craving for
opium or for particular articles of food, or for tobacco, or for
chloroform ; or as there is in another class of cases a craving for
restless action, or for self-indulgent repose. But in all these cases,
supposing the mind to be sane, the patient's will follows the dictates
of his reason. He balances the gratification on the one side,
against the evil consequences on the other. If the latter appear to
him remote — if he thinks he may indulge just this once without
being discovered or punished, and then make this indulgence the
crisis from which to date a new era of self-restraint — he is apt to
seize the gratification. The great point before him, at least in the
incipient stages, is, whether the pleasure may be enjoyed with
impunity. If it can, it will be enjoyed. Of course, then, in view
of the evils to the community of " dipsomania" as a general dis-
ease, the law is bound to step in and attach certain penalties to
such a dangerous habit. It says, " Drunkenness we make a police
offence," and " for crimes committed under excitement or drunken-
ness, we hold drunkenness to be no defence." It cannot say this,
however, with effect, unless it makes good what it says. A law
which is not executed ceases to deter. It must be executed if it is
to have any effect on the will. The man who is strongly tempted
to indulge a passion must feel, " I Avill be punished if I do this ;"
but in order that he should feel this, the law must be known to
perform what it threatens.^

§ 643. " Dipsomania" is here viewed not only singly, but as a
type of other appetites for excessive food, drink, and stimulus.
These appetites spring from the animal nature, and, if they are
yielded to in excess, brutalize him who yields to them, making them
the sources of great domestic and sometimes cruel wrong. From
the very nature of such indulgences, they are to be controlled
chiefly, if not exclusively, by the fear of results. Hence it is that

• See an article giving statistics of Action and Uses, by Dr. Richardson,
Influence of Alcohol on Insanity, 18 London, 1875.

Journ. Ment. Sci. 443. In this connec- * See supra, §§ 115, 146, 162, 188,
tion may be referred to Alcohol, Its 403. See an article in 3 Quart. Journ.

Inebriety, 202.

526

DIPSOMANIA.

[§ 643.

to such men the greatest mercy is that the law should be firmly ex-
pressed. To declare them emancipated from the law on the ground
that " dipsomania" is a moral insanity, is cruel to them, as taking
away what may be the only barrier between them and ruin. And
it is unphilosophical on the grounds already stated. The mind is not
divided into a series of compartments, one of which can be insane
and the others sane. When there is an insanity of the part, there
is insanity of the whole. When there is no insanity of the whole,
there is no insanity of a part.^

' As to "dipsomania" as a legal de-
fence, see supra, §§ 190-199 ; and see,
as negativing theory, Choice v. State,
31 Georg. 424.

The following is extracted from an
article by Dr T. H. Tanner, in the
Dublin Medical Press of August 27,
1862, as reprinted in the American
Journal of Insanity for October,
1862 :—

" Within the last few years the word
dipsomania has been coined to express
that craving for intoxicating liquors
which, according to some physicians,
partakes of the character of insanity.

" Now, although a fit of intoxication
is undoubtedly an attack of temporary
mania, yet it seems to me a highly un-
philosophical view (and one, too, which
is fraught with the greatest danger to
society) to regard a dipsomaniac as an
irresponsible being ; to look upon him,
in fact, as an individual affected by
some recognized form of lunacy. Hard
drinking is a degrading vice, and,
like many other vices, the more freely
it is indulged in, the more difficult is
its discontinuance. It seems absurd to
say that the desire for alcoholic stimu-
lants is a disease — that it is symptom-
atic of some cerebral condition, unless,
indeed, we say the same of every act of
wickedness or folly. Not only is the
experience of the dead-house against
such a view, but, if we set aside this
evidence as being of little value, we

yet know that there is no difficulty in
curing the most inveterate sot, provided
that we are but able to deprive him
of his poison. The fact is indisputable,
that many who drink to excess can
be persuaded to abs'ain temporarily, if
only a limit to their abstinence be
fixed, so that they may enjoy the anti-
cipation of a debauch ; while a few can
be so influenced that they renounce
this habit entirely.

"The drunkard is a nuisance to
himself and all who are brought into
contact with him ; and it is to be re
gretted that there are no legal means
of controlling him until he is cured of
his folly.

" The man who attempts suicide by
some summary process is liable to im-
prisonment ; while he who slowly
poisons himself may proceed to certain
destruction with impunity. He may
ruin himself and his family, but so
that he breaks only moral laws and
obligations he cannot be stopped in his
downward career. The welfare of
society demands some place of deten-
tion for such men : and, even if an
act of parliament cannot be obtained
to sanction the necessary interference
with the liberty of these misguided
people, yet I believe that there are
many who would voluntarily enter and
submit to the rules of an institution
for tlie cure of drunkenness.

"Mr. Dickens in his 'American

527

§ 646.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

9. Fanati co-mania.
Qct) Supernatural or pseudo-supernatural demoniacal possession.

(a^) § 644. A priori improhalility of such. p)ossession. — There are
periods in the development of society when we may expect super-
natural communications. When a new economy is announced, we
may look to see it authenticated by miracles. When that economy
is inaugurated, we may look for a government by law.

[§ 645 omitted in this edition as cumulative.^

[¥) Solvahility of this evidence by natural tests.

(a^) § 646. Disease. — The brain, independently of its positive
-J, . . „ functions, is the centre of nervous sympathy, and " is
encedby intimately connected with many other viscera, whose
functions cannot be carried on without the assistance
derived from this organ, and whose infinitely varied disturbances
are all propagated by a reflex action to this common centime."
Among the organs by which the brain is thus influenced, the
stomach may be particularly mentioned. Observe, as an illustra-
tion of this, the way in which tea, coff"ee, alcohol, and opium act
on the brain. Headaches, hypochondriasis, melancholy, here find
their origin. Take the ordinary case of hallucination, in which a
ghost is seen, or a prophecy heard. Here a morbid state of the
stomach, induced, perhaps, by stimulants, perhaps by indigestion,
is the direct cause of the phantasm of cases such as these. Dr.
Ferrier thus speaks : " It is well known that in certain diseases of
the brain, such as delirium and insanity, spectral illusions take
place even during the space of many days. But it has not been
generally observed that a partial affection of the brain may exist,
which renders the patient liable to such imaginary impressions,

Notes' mentions the case of a mau who or surveillance ; but they have also

got himself locked up in the Philadel- said that without restraint all else

phia prison, so that he might rid him- would be useless, for they could not

self of his propensity to drink, where trust themselves."
he remained in solitary confinement See for a case of alleged dipsomania,

for two years, though he had the power 17 Mouvement M6dicale, 494. See an

of obtaining his liberty at any moment article on Oinomania in the Alienist

that he chose to ask for it. Patients and Neurologist for October, 1881, by

have more than once told me that they T. L. Wright, M.D., arguing that the

would gladly submit to any treatment only cure for dipsomania is prevention.

528

FANATICO-MANIA. [§ 647.

either of sight or sound, without disordering his judgment or
memory. From this peculiar condition of the sensorium, I conceive
that the best-supported stories of apparitions may be completely
accounted for."

" When the brain is partially irritated, the patient fancies that
he sees spiders crawling over his bedclothes or person, or beholds
them covering the walls of his room. If the disease increases, he
imagines that persons who are dead or absent flit around his bed,
that animals crowd into his apartment, and that all of these appari-
tions speak to him. These impressions take place even while he is
convinced of their fallacy. All this occurs sometimes without any
degree of delirium."

This topic, in its psychological relations, is more fully considered
under other heads. ^

(Jj^) § 647. Morbid imitative sympathy. — Emotions which would
not affect us when alone become overpowering when Hysterical

striking us in connection with others. Hysterical symp- emotions
^, , , . / "^ ^ often be-

toms, when not promptly repressed m times of general come epi-
religious excitement, may in this way become epidemic.
Dr. Davidson, in his history of the Presbyterian Church in Ken-
tucky, gives us instances of this. Speaking of a period in East
Tennessee, in which these manifestations were very injudiciously
encouraged, he tells us that " the subject was instantaneously seized
with spasms or convulsions in every muscle, nerve, and tendon.
His head was jerked or thrown from side to side with such rapidity
that it was impossible to distinguish his visage, and the most lively
fears were entertained lest he should dislocate his neck, or dash out
his brains. His body partook of the same impulse, and was hurried
on by like jerks over every obstacle — fallen trunks of trees, or, in
a church, over pews and benches, apparently to the most imminent
danger of being bruised and mangled. It was useless to attempt
to hold or restrain him, and the paroxysm was permitted gradually
to exhaust itself. An additional motive for leaving him to himself
was the superstitious notion that all attempt at restraint was resist-
ing the Spirit of God."^

' Supra, § 529 ; infra, §§ 723—743. was revealed that there were six pro-

2 An "epidemic of witchcraft" is re- fessional 'witch masters' in the county,

ported as having occurred in Butler, and that when the devil got possession

Pennsylvania, in 1881, "when the fact of a man and was not disturbed in his

VOL. I.— 34 529

§ 648.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

§ 648. Most of the supposed cases of supernatural possession fall
under this head. Take, in addition to the above, the following,

tenaDcy for two months, five dollars
was tlie smallest sum for which he
«ould be evicted. The modus ope-
randi is to cut a circle on a white-oak
tree and lure the devil to enter it,
which he does with a noise like thun-
der and a vehemence that splits the
tree to splinters. The patient is then
corked lap, as it were, with prayers
and charms. A case of bigamy at
Eden, New York, in March last, showed
that an old man named Benedict Smith
had convinced a woman and her three
daughters that they were possessed,
and that he alone could cure them, the
cure involving their marriage to him.

"The case of Catharine Sylvia, at
New Bedford, iu March, 1881, proved a
humbug, but was none the less inter-
esting because of the enthusiasm with
which the people accepted the theory
that the girl was a witch ; and it is
only a little while since the Davenport,
Iowa, papers chronicled the death of
Mary the Witch, arid gave an appe-
tizing inventory of her professional
possessions, her ' cabinet' containing a
cat's skull, a chicken's head, bats'
wings, toads' feet, spiders' webs, va-
rious bones of various animals, dried
blood, and eyes of owls and cats de-
posited in various places wrapped in
paper. Leaving out of the question
the Voudoo priestesses and the spirit-
ualist mediums, it is safe to say that
the professors of witchcraft in the
United States are numbered by hun-
dreds, and derive an annual revenue
from the credulous which would take
at least seven figures to express.

" Though witchcraft is not so public
and profitable a business in England,
the belief in witches is even more gene-
rally held. Within the last few weeks
one case has been reported where the

530

parson of the parish was appealed to
to cut a sod from the alleged witch's
grave to stop her nightly promenades
for evil purposes, and two young men
were brought before the courts for
knocking down an old woman and
' drawing blood' from her with a knife,
so as to release their sister from her
spells. At Sheflleld, in November,
1880, Agnes Johnstone was sent to jail
for three weeks for obtaining £5 8s.
from Margaret Devaney, through a
promise of ' ruling her planet ' and
bringing her a fortune through the
agency of subterranean spirits. The
witch had, her dupe testified, danced
with the fairies and worked with the
devil for night after night.

" At East Dereham one William Bul-
wer was fined for abusing and assault-
ing a girl named Christiana Martins
because she was a partner in the witch
business with her mother, his testimony
being as follows: 'Mrs. Martins is an
old witch, and she charmed me, and I
got no sleep for her for three nights,
and one night at half-past eleven
o'clock I got up because I could not
sleep, and went out and found a ' ' walk-
ing toad' ' under a clod that had been
dug up with a three-pronged fork.
That is why I could not rest. She is a
bad old woman. She put this toad
under there to charm me, and her
daughter is just as bad, gentlemen.
She would bewitch any one. She
charmed me, and I got no rest day or
night till I found this ' walking toad'
under the turf. I got the toad out and
put it under a cloth and took it uj)
stairs and showed it to my mother, and
' throwed' it into the pit in the garden.
I can bring it and show it to you, gen-
tlemen.' " — Philadelphia Inquirer, Feb.
22, 1882.

FANATICO-MANIA. [§ 649.

which occurred in Kentucky in the movements of 1810- Most cases
15. A man who was undoubtedly deranged, and who had natural
in early life been a bold and enthusiastic hunter in the reaiTyhys-
wilderness of which Western Kentucky was composed, tericai.
became deeply impressed with a religious enthusiasm which ex-
hibited itself in the same way that all his other impulses exhibited
themselves — through the mechanism of the hunting mania. He
became a sort of fanatical Der Freyschutz. In order to resist the
devil and make him flee, he contended that it was necessary to tree
him, and to give him chase, just as we would a wolf whom we found
prowling among our sheep. As the meetings he convoked were
held in a grove, one of the congregation would suddenly start in
pursuit of the devil, an exercise in which a number of others equally
excitable would immediately join. This was called the " running
exercise,^'' and became the first stage in the series of movements by
which the meetings were afterwards made memorable. Climbing a
tree after the devil was the next movement, which was called the
" climbing exercise.'''' In the ecstasy of the moment, one indi-
vidual was seized with a propensity to bark, a movement to which
the rest were irresistibly impelled, though they used every effort to
check the propensity. This exercise, which was called " treeing
the devil ^'' was accompanied Avith such a scene of barking and
jumping as to destroy any remaining appearance of reason. The
epidemic spread to other fields than that of demon-hunting. On
one occasion one individual Avas seized with an insane propensity to
play marbles during divine service, when others involuntarily joined
him. And so far did the mania extend, that a series of other
juvenile games were introduced and followed with the same irre-
sistible vehemence by the congregation. Absurd as this may appear,
the epidemic lasted for some months, and its history has now passed
into the records of our western states as part of the materials on
which the annals of western immigration will rest.

§ 649. In connection with this, may be noticed the recognized
effect of a mania of the imitative powers, as exhibited ^

'■ . Instances

in the tarantula of Apulia, and the exercises of the of morbid

Jumpers of Cornwall and the convulsionnaires of the ^^

Parisian miracles.

" In 1556," says Dr. Kellogg, " a nuniber of children, brought

up in the city of Amsterdam — girls as well as boys — to the number

531

§ 649.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

of sixty or seventy, were attacked with an extraordinary disease.
They climbed like cats on the Avails and roofs. Their aspect was
alarming, they spoke foreign languages, said wonderful things, and
even gave an account of all that was passing in the municipal
council. They ran in groups of ten or twelve through the public
squares, went to the rector, and reproached him with his most secret
actions. It is also asserted that they discovered several plots
against the Protestants ; and the faculty of prophesying, foretel-
ling the future, and speaking in foreign languages, appeared really
to exist in this epidemic."

" With our present amount of knowledge," says Dr. Winslow,
speaking of imitative or epidemic suicide, " of the subtle principle
of contagion, it is difficult to say whether an effluvium may not be
generated in such cases, which, under certain conditions of the sys-
tem, may communicate disease. We cannot possibly say that such
is not the case," he adds, " though we are by no means willing to
admit that the disposition to suicide may be propagated by conta-
gion— using the term in its usual acceptation."

" A man once hung himself, on one of the doors of the corridor
at the Hdtel des Invalides. For two years previous no suicide had
occurred, but in the succeeding fortnight five invalids hung them-
selves on the same cross-bar, and the passage had to be closed. In
one of the Berlin hospitals, some fifty years since, a young woman
of robust frame visited one of the patients. On entering the ward,
she fell down in strong convulsions. Six female patients who saw
her became at once convulsed in the same way, and, by degrees,
eight others passed into the same condition for four months, during
which time four nurses followed their example. They were all be-
tween sixteen and twenty-five years of age. Some years since, in
one of our popular boarding-schools for young ladies, a pupil be-
came affected by chorea. Her contortions being perceived by the
school, this case was soon followed by another, and still another,
until the disease became regularly epidemic. A judicious physi-
cian being called in proposed that cauterization by a red-hot iron
should be applied to the next case which occurred ; this prescription
became generally known through the school ; no more cases oc-
curred. In the olden time, the ladies of Miletus, in a fit of melan-
choly for the absence of their husbands and lovers, resolved to hang
themselves, and, as in all fashionable amusements, vied with each
532

FANATICO-MANIA. [§ 651.

other in the alacrity with which they carried on their work of self-
destruction. Sydenham informs us that at Mansfield, in the month
of June, suicide prevailed to an alarming degree, from causes
wholly unknown. The same thing happened at Rouen in 1806, at
Stuttgart in 1811, and at a village of St. Pierre Montjean in the
year 1813. One of the most marked suicidal epidemics was that
which prevailed at Versailles in the year 1793 : in one year the
number of suicides was thirteen hundred — a number entirely out
of proportion to the population."

§ 650. A suicidal epidemic prevailed at the New York State
Lunatic Asylum in July, 1851, and is alluded to by Dr. Benedict
in his report for that year. " Out of four hundred and sixteen
patients, at that time in the institution, the suicidal propensity ex-
isted in sixty-six. The first successful attempt was made on the
12th of July, by a female of the most intelligent class. Her
melancholy end became known to her companions, with whom she
was a favorite, and on the following day two others in the same
hall Avere overheard devising a plan for their own death. The
large number of forty-four patients were admitted during the month
of July, nineteen of whom were suicidal. Two patients, who had
long been in the house, and never manifested suicidal propensities,
attempted it during this month, though they had no knowledge of
what had occurred in another part of the huilding y^

(c^) § 651. Legerdemain and fraud. — Dr. Monsey, who was the
medical adviser of Garrick, was called upon to pay a
professional visit to that great actor. " Garrick," as inexpika-"^
his biographer, Taylor, tells us, "was announced for ^i^occur-
King Lear on that night, and Avhen Monsey saw him in often mere

111 11- • 1 1 1 1 • -f 1 1 deception.

bed he expressed his surprise, and asked him it the play
was to be changed. Garrick was dressed, but had his nightcap
on, and the quilt was drawn over him to give him the appearance
of being too ill to rise. Dr. M. expressed his surprise, as it Avas
time for Garrick to be at the theatre to dress for King Lear.
Garrick, in a languid and whining tone, told him that he was too
much indisposed to perform himself, but that there was an actor
named Marr, so like him in figure, face, and voice, and so admir-
able a mimic, that he had ventured to trust the part to him, and

' Kellogg on Reciprocal Influence of Mind and Body.

533

§ 652.1 MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

was sure that the audience ■would not perceive the difference.
Pretending that he began to feel worse, he requested Monsey to
leave the room in order that he might get a little sleep, but desired
him to attend the theatre, and let him know the result. As soon
as the doctor quitted the room, Garrick jumped out of bed, and
hastened to the theatre. Monsey attended the performance. Hav-
ing left Garrick in bed, he was bewildered by the scene before
him, sometimes doubting, and sometimes being astonished at the
resemblance between Garrick and Marr. At length, finding that
the audience were convinced of Garrick's identity, Monsey began
to suspect a trick had been practised upon him, and instantly hur-
ried to Garrick's house at the end of the play ; but Garrick was
too quick for him, and was found by Monsey in the same state of
illness."

§ 652. A writer in the London Christian Observer, for 1812,

tells us that in the middle of the last century a small

Do«ed^sif' ^^^ ^^ convivial personages was assembled at supper in

pernatu- Manchester. A chair at the bottom of the table was

ralism.

left empty by the absence of a member who was known
to be at the time confined upon a dying bed. The waiters had
quitted the room, and the members were speaking of their dying
friend, when on a sudden the door opened, and his apparition, as
was supposed, entered, shrouded in white, and pale and ghastly as
an inhabitant of the tomb. It stalked to the unoccupied chair, sat
down, looked around upon the company, rose again, and with slow
and solemn step quitted the room. Overcome with awe, ill-prepared
by their habits of life to resist the terrors of superstition, no one
followed him. When all was over, however, they sent to the house
of the sick man, and learned from the nurse that he had died a few
minutes before they had seen his apparition. Could a ghost-story
be more strongly authenticated ? and could it be wondered at that
the club should be dissolved, and that each member should thence-
forward remain a firm believer in spectral appearances ? Thus
matters continued for nearly ten years, when the nurse, on her
dying bed, confessed to the clergyman of the parish that her fear
of discredit for an act of negligence had led to this misapprehension
of the facts of the case. She confessed that, while the dying man
was in a paroxysm of fever, she had quitted his chamber ; that on
her return, a few minutes after, she found that, with the strength
534

FANATICO-MANIA. [§ 652.

not unusually attendant upon the last moments of life, he had fled,
but that after a few minutes he returned with his sheet wrapped
around him, lay down in his bed and died. The fact seems to have
been that, by force of custom, he had thought of his club at the
appointed day and hour, had crossed the street to the club-door,
which joined the street, and thus terrified the society.

So also the following, given in the same journal. It was the ob-
ject, some fifty odd years ago, of a certain party in the kingdom of
Prussia to separate the successor of Frederick the Great of Prussia
from the interests of that w^ary and ambitious prince. Weary of
the wars in which he engaged the country, these persons were de-
sirous of robbing him not merely of his throne, but of his life. It
chanced, however, that the young prince was not to be seduced, ex-
cept by a peculiar process, to any such nefarious attempt. He was
neither ambitious nor sanguinary ; and, unless when stimulated by
peculiar feelings, was of a cold and phlegmatic temperament. When
once, however, those feelings were aroused, his ardor became very
great. He was superstitious, credulous, and sensual. On these
yielding points of his nature, then, the conspirators resolved to
practise. Accordingly, jugglers of all sorts were set to work, and
among others an infamous fellow of the name of Gustfragog. The
" Ghost Seer" of Schiller gives an accurate picture of one of the
scenes exhibited to the prince, and by which even a firmer mind
than his might have been deeply affected. It is unnecessary to
state the political result of the plan. It is more to our present pur-
pose to add, that its partial social success assisted to diffuse a taste
for necromancy over the nation. " Tricks," is the summary of this
by the writer in the Christian Observer, " were devised and exe-
cuted, which serve to illustrate and confirm the opinion, that in all
ages much of what has been referred to spectral appearances has
far more connection with the living than the dead. Gustfragog, in
the presence of the narrator above mentioned, produced the shades
of the dead, invisible music, called out voices from the dead
walls, in short, made matter loquacious, music philosophical, at his
pleasure."

A case of this class was told by the late Washington Allston. A
student at Cambridge dressed himself up in white as a ghost to
frighten his companion, having first drawn the bullets from pistols
which he kept at the head of his bed. As the apparition glided by

535

§ 654.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

his bed, the youth laughed and cried out, " Vanish, I fear you not."
The ghost did not obey him, and at length he reached a pistol and
fired it, when, seeing the ghost immovable, and invulnerable as he
supposed, a belief in a spirit instantly came over his mind, and,
convulsions succeeding, his extreme terror was soon followed by
death.

§ 653. Predictions, accompanied by ghostly horrors such as this,
often bring about their own fulfilment. Dr. Rush told a story of a
farmer, near Philadelphia, who took the yellow fever upon hearing
from a party of medical students, who wanted to play a practical
joke upon him, that he displayed the premonitory symptoms of that
disease. Suppose the communication had been made to him under
the mask of a simulated apparition, and suppose the imposition had
remained undetected, would we not have had a ghost story equal in
authentication to the strongest which modern supernataralism can
present ?

(d^) § 654. 3IistaJce of semises. — Mr. Dendy, in his Philosophy
of Mystery, tells us that a few days after the death of
apparitions Marshal Ney, a servant, ushering the Mareschal Aine
mJ^teke o? ^"^^ ^ Parisian soiree, announced by mistake Mons. Le
senses. Mareschal Ney. Instantaneously, says the narrator, the

form of the Prince of Moskeva was before his eye.

Now here was an apparition produced by mental association.
No one accustomed to the examination of testimony in courts of
justice, but will recollect many similar cases.

Visual mistakes find their place here. Thus Lord Nelson's
sailors conjured up the bloated corpse of the murdered Prince Car-
accioli, as it floated erect towards their ship, as a ghost fraught with
supernatural Avarning.

A lady was some years back attending a sick husband in a little
town on the Hudson River. The windows of the room they occu-
pied looked directly down on the graveyard. Towards midnight,
on Saturday, the disease of the sick man approached a crisis, and
his wife was earnestly praying for his recovery. Suddenly she saw
in the graveyard a spectral figure in white robes, apparently waving
its arms to her as if with a gesture of assent. She called to it the
attention of the nitse, who fainted. It seemed as if the sick man
at once began to recover, but the wife was too much overawed to be
willing to remain in a neighborhood open to such apparitions. She
536

FANATICO-MANIA. [§ 655.

was about to remove, when the difficulty was solved by the follow-
ing account given to her by her washerwoman : " I am obliged
to move also, for I have no place to dry my clothes. Last week
we were forced to hang them in the churchyard, and then I forgot
them, and had to run in towards midnight to catch them up in my
arms, so as to keep them from being seen on Sunday morning."

Mr. Dendy tells us of a farmer of Teviotdale, who in the gloom
of evening saw on the wall of a cemetery a pale form throwing
about her arms and moving and chattering to the moon. With not
a little terror, he spurred his horse, but as he passed the phantom
it dropped from its perch, and, fixing itself on the croup, clasped
him tightly round the waist. He arrived at home, with a thrill of
horror exclaimed, " Tak aff the ghaist !" and was carried shivering
to bed. And what was the phantom? A maniac widow on her
distracted pilgrimage to the grave of her husband, for whom she
had mistaken the ill-fated farmer.

The supernatural scenery which once surrounded Lake Superior
may fall under this head. Spectre ships, propelled by giant
sailors, were seen on its shores. Bluffs, almost mountain high,
lifted their brows covered with trees of mammoth height. But the
ships were Indian canoes, and the bluffs low ridges of sand covered
with scrubby pines. The exaggerated size was produced by a
peculiar refractive power of the atmosphere.

§ 655. Observe, also, the solution of the Giant of the Brocken,
as given by M. Haue. Or optical

" After having been here for the thirtieth time, and, <ieiusions.
besides other objects of my attention, having procured information
respecting the above-mentioned atmospheric phenomenon, I was at
length so fortunate as to have the pleasure of seeing it ; and per-
haps my description may afford satisfaction to others who visit
Brocken through curiosity. The sun rose about four o'clock, and,
the atmosphere being quite serene towards the east, his rays could
pass without any obstruction over the Heinrichshohe. In the
southwest, however, towards the Achtermannshohe, a brisk west
wind carried before it their transparent vapors, which were not yet
condensed into thick, heavy clouds. About a quarter past four I
went towards the inn, and looked around to see if the atmosphere
would permit me to have a free prospect to the southwest ; when I
observed, at a very great distance towards the Achtermannshohe,

537

§ 655.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

a human figure of a monstrous size. A violent gust of wind having
almost carried away my hat, I clapped my hand to it hy moving
my arm towards my head, and the colossal figure did the same.
The pleasure I felt on this discovery can hardly be described ; for
I had already walked many a weary step in the hope of seeing this
shadowy image, without being able to satisfy my curiosity. I im-
mediately made another movement by bending my body, and the
colossal figure before me repeated it. I was desirous of doing the
same thing once more, but my colossus had vanished. I remained
in the same position, waiting to see whether it would return, and in
a few minutes it again made its appearance in the Achtermannshohe.
I paid my respects to it a second time, and it did the same to me.
I then called the landlord of the Brocken ; and, having both taken
the same position which I had taken alone, we looked towards the
Achtermannshohe, but saw nothing. We had not, however, stood
long Avhen two such colossal figures were formed over the above
eminence, which repeated our compliments by bending their bodies
as Ave did ; after which they vanished. We retained our position,
kept our eyes fixed upon the same spot, and in a little while the
two figures again stood before us. Every movement that we made
by bending our bodies these figures imitated, but with this differ-
ence, that the phenomenon was sometimes weak and faint, some-
times strong and well defined. Having thus had an opportunity of
discovering the whole secret of this phenomenon, I can give the
followincr information to such of mv readers as may be desirous of
seeing it themselves. When the rising sun throws his rays over
the Brocken upon the body of a man standing opposite to fine light
clouds floating around or hovering past him, he needs only fix his
eye steadfastly upon them, and in all probabiUty he will see the
singular spectacle of his own shadow extending to the length of five
or six hundred feet, at the distance of about two miles from him.
This is one of the most agreeable phenomena I ever had an oppor-
tunity of remarking on the great uplands of Germany."

A throng of persons collecting at a given spot, and gazing in
tently at any specific object, will readily be aflected by a delusion
concerning it. Mr. Dendy tells us that some time since a very
large assemblage was watching with intense interest the stone lion
of the Percies at Northumberland House. They were unanimous
in the conviction that he was swinging his tail to and fro — a false
538

FANATICO-MANIA. [§ 656.

impression, of course, which liad gradually accumulated from this
solitary exclamation of a passenger : " By heaven, he wags his
tail !" Of this sort of illusion we are given the following addi-
tional instance : Beneath the western portico of St. Paul's a crowd
^f gazers were some time since bending their eyes on the image of
a saint, who was nodding at them with a very gracious affability.
Curiosity had risen to the pitch of wonder at a miracle, when sud-
denly a sparrow-hawk flew from the ringlets of the saint, and the
illusion vanished.

(fe2) § 656. Cfuessufork. — First, as to dreams. Now, in the
millions of dreams that each night brings to pass, it is Knowiod^e
much more likely that some should come true than that attributed

•^ _ to dreams

none should. But there are independent circumstances probably

.f. T • procured

tending to verity such predictions.' from other

" If you do so and so, you will rue it." So speaks ®*^'^'^^*^^-
superior sagacity or superior caution ; but does the fulfilment prove
the foreknowledge ? Columbus predicted to the Indians an eclipse.
In this case the prediction was the result of a higher degree of
knowledge on his part. An Earl of Caithness, we are told, was
desirous of ascertaining the distance of a vessel laden with wine for
his cellars. He went to a seer, and received the answer, " At the
distance of four hours' sail." The prophet, to prove the truth of
his statement, laid before the earl the cap of a seaman in the
ship. Soon the ship turned the point, and a seaman claimed the
cap, saying that shortly before it had been blown from his head in
a gale.

Sometimes, however, the prediction is one of a series of mere
fishing adventures. It is a conjecture, more or less sagacious, of
one of a number of probabilities. So it was when Napoleon, when
marching to Acre, had a Nile boat named Ultalie destroyed.
"Italy is lost to France," he declared ; and the remark, when the
result was found to have taken place, was treasured up, though it
turned out to be only parenthetically true. So it was with the
warning given by Lord Falkland and Archbishop Williams of the
fate of Charles I. So it was with the famous prophesies of
Cazotte, of the decapitation of himself and his friends. In

' See La Sommeil et les R6ves, Alfred Maury. Paris, 1865.

539

§ 657.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

each case the prophecy was a conjecture, and the event at the time
probable.

Then come the mere dodging oracles, which are framed so as to
read both ways.

" The power is here which Csesar will overcome," leaving the
question, whether it is C?esar or the power which is to be trium-
phant, to be determined by the result.

Then take the following, given Pyrrhus on his way to attack
Rome : —

"Aio te ^acida Romanes te vincere posse," meaning either that
Rome was to conquer him, or he conquer Rome.

Alexander the Great, in the first gush of his youthful vigor,
visited the Delphic pythoness in order to obtain a favorable omen
for his eastern campaign. The priestess shrank from an interview
with a prince at once so capricious and so powerful. Alexander,
however, would take no refusal, and, seizing her, forced her down
upon the tripod from which her prophetic strains usually emanated.
An operation like this, when we keep in mind the age of the pro-
phetess, and the sharp, jutting points of the tripod on which she
was thus trussed, could not have been agreeable to her ; nor can
we be surprised that she cried out testily, " 0 son ! who can
withstand thee ?" Alexander inquired no further, for this pettish
cry was seized by him as a divine announcement of his future in-
vincibility.

§ 657. To this may be added those instances in which an ap-
parently supernatural presentiment is produced by the
raipresen- resuscitation of a dead recollection. Let us take the
often'an following from Moreton's Essay on Apparitions : " The
awakening Reverend Dr. Scott, of Broad Street, was sitting alone

of memory. r- i i

in his study. On a sudden, the phantom of an old
gentleman, dressed in a black velvet gown and full-bottom wig,
entered and sat himself down in a chair opposite to the doctor.
The visitor informed him of a dilemma in which his grandson, who
lived in the west country, was placed by the suit of his nephew for
the recovery of an estate. This suit would be successful, unless a
deed of conveyance was found which had been hidden in an old
chest in the loft of the house. On his arrival at this house, he
learned that his grandson had dreamed of this visit, and that
his grandfather was coming to aid him in the search. The deed
540

FANATICO MANIA. [§ 658.

was found in the false bottom of the old chest, as the vision had
promised."

Now, the solution no doubt is, that the dreamer heard of the
place of deposit when a boy, and the circumstance was recalled to
him by the fact of the pending trial.

The same explanation applies to the following cases : —

After the death of Dante, as we are told by the same author, it
was discovered that the thirteenth canto of the Paradise was
missing. Great search was made for it, but in vain ; and to the
regret of every body concerned, it was at length concluded that it
had either never been written, or had been destroyed. The quest
was therefore given up, and some months had elapsed, when Pietro
Allighieri, his son, dreamed that his father had appeared to him
and told him, that, if he removed a certain panel near the window
of the room in which he had been accustomed to write, the thir-
teenth canto would be found. Pietro told his dream, and was
laughed at, of course. However, as the canto did not turn up, it
was thought as well to examine the spot indicated in the dream.
The panel was removed, and there lay the missing canto behind it,
much mildewed, but fortunately still legible.

A gentleman in this country received a promissory note to a
large amount, which he placed in a book. After the note became
due, he was unable to recollect where he had placed it, and the
debt was in danger of being lost, and his cliaracter seriously
injured, as one who was ready to press a claim for which he had
no evidence. The fact caused him great anxiety, but his efforts to
recollect the place of deposit were fruitless. Some time afterwards
he was almost droAvned, and became apparently insensible. When
in this state, all the circumstances of the deposit flashed upon his
mind, and the spot where he had placed the note was recalled.
When he was able to speak, he sent for the book, and there the
note was found.

§ 658. Sir Evan Nepean, being at the time secretary of the

admiralty, found himself one nio;ht unable to sleep, and

•" . '=' . ^' . Memory

was urged by an indefinable feeling that he must rise, iudepen-
though it was then only two o'clock. He accordingly did poreai con-
so, and went into the park, and from that to the Home '^itions.
Office, Avhich he entered by a private door, of which he had the
key. He had no object in doing this ; and, to pass the time, he

541

§ 659.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY

took up a newspaper that was lying on the table, and there read a
paragraph to the effect that a reprieve had been dispatched to
York for certain men condemned for coining. The question oc-
curred to him, was it indeed dispatched ? He examined the books,
and found it Avas not; and it was only by the most energetic pro-
ceedings that the order was forwarded and reached York in time to
save the men.

Mrs. Crowe, in her " Night Side of Nature," tells us of a case
that occurred not many years since, where, a murder having been
committed, a man came forward, saying that he had dreamed that
the pack of the murdered peddler was hidden in a certain spot,
where, on a search being made, it was actually found. The police
at first concluded that he was himself the assassin, but the real
criminal was afterwards discovered ; and^ it being asserted that the
two men had passed some time together since the murder, in a
state of intoxication, the conclusion was generally reached that the
crime and the place of concealment had been communicated to the
pretended dreamer in such a Avay, in consequence of his then
drunkenness, as to leave a vague impression on his mind, without
enabling him to understand how that impression came.

Now, here we have in each case a solution perfectly in accord-
ance with well-known psychological laws. The soul, of which
memory is an attribute, is independent of corporeal conditions, and
is unshackled by those bonds which confine even the will. It is this,
we may remark incidentally, which invests the memory with such
tremendous future retributive powers.

(y^) § 659. Natural phenomena at present inexplicable. — Under
this head we may place such remarkable occurrences as
"ecstasies" the " ecstasies" of Louise Lateau and of Alexandrine
netlcTh^"- Lanoix, as reported by Dr. Meredith Clymer, in his
nomena. valuable " Notes on Ecstasy and other Dramatic Dis-
orders of the Nervous System."^

' 4 Journ. Psyc. Med. 659. General Pathology and Therapeutics

"The perusal of Dr. Meredith Cly- in the Catholic University of Louvain,

mer's interesting paper, ' On the Dra- to ask for further and later details

matic Diseases of the Nervous Sys- regarding the case of Louise Lateau.
teiu,' " vrrites George E. Day in the " In reply to my letter, he forwarded

same journal for 1871, p. 288, led " me me a complete work, which he has

to write Dr. Lefebvre, Professor of recently published, entitled ' Louise

542

FANATICO-MANIA. [§ 659.

With this may be classed the so-called " Odyllic Force of Mag-
netism." It is true that some of these phenomena may be explained
in accordance with well-known natural analogies. They differ in
no respect from a series of other phenomena equally inexplicable,
but for which it has never been thought necessary to suppose direct
Satanic or spiritual coercion. The strongest Avay of stating the
magnetic theory is, that one human being is able, under certain
circumstances, to so impress his idiosyncrasies upon another as to
produce in that other their counterparts. Suppose, instead of this,
it should be stated that a dog is able to so act upon a human being
as after a certain period of time to impress Ms idiosyncrasies upon
the man, to cause him to bark like a dog, to believe himself a dog,
in fact, to respond to the dog's nature. Nothing in animal magnet-
ism is stranger than this, and yet this horrible and mysterious trans-
formation we witness in the phenomenon of hydrophobia, and Avhat
is more, we rest satisfied with the fact without attempting to explain
it supernaturally, though the process by which this extraordinary
infusion of one nature into another is effected is utterly inexplicable.
And again, we see that the sun, itself an unintelligent agent, is able
so to act upon a silver plate as to stamp in a flash the portrait of an
immediate object — say a human face — upon the inanimate metal.
Is this more strange than that the passionate and flexible spirit of
man, impregnated as it is with so many wonderful energies which we
have never been able to test, should project on the soul of its fellow
at least some sort of portrait of itself? Do we not see this con-
stantly in social life, at least to some modified extent ? Have we

Lateau de Bois d'Hiane: sa vie — ses devoted to the medical study of the

extases — ses stigmates. Etude Medi- facts.

cale, par le Dr. F. Lefebvre, pp. 3(30: "He devotes eighty pages to the

Louvain, 1870.' The mode of arrange- subject of stigmatization, and a hun-

ment of the volume is as follows : In dred to that of ecstasy. The author of

the first part he gives a short biogra- this curious volume is deserving of the

phy of the young woman ; in the second, highest praise for tlie conscientious

he enters into the details of her case ; care with which he lias investigated

in the third, he discusses the hypothesis this almost incredible case. I may

of there being any fraud or imposition conclude by stating that he informs

practised; while the fourth and con- me that he last saw his patient on the

eluding part, which occupies more than 13th of January, 1871, and that she

three-quarters of the whole book, is continued in precisely the same state

{toujoiirs le meme).^^

543

§ 660.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

been able as yet to systematize and define the transforming influ-
ences of human affection or fear ?

The most cautious psychologists maintain that phenomena such as
these, or similar to these, are explicable on natural grounds. Thus,
in Sir William Hamilton's edition of Reid, we find the following
passage : —

" No man can show it to be impossible to the Supreme Being to
have given us the power of perceiving external objects without any
such organs ;" that is, our organs of sense. " We have reason to
believe that when we put off these bodies, and all the organs be-
longing to them, our perceptive powers shall rather be improved
than destroyed or impaired. We have reason to believe that
the Supreme Being perceives everything in a more perfect manner
than we do, without bodily organs. We have reason to believe
that there are other created beings endowed with powers of percep-
tion more perfect and more extensive than ours, without any such
organs as we find necessary."

To this Sir William Hamilton adds the following note : —
" Plowever astonishing, it is now proved beyond all rational doubt,
that, in certain abnormal states of the nervous organism, perceptions
are possible through other than the ordinary channels of the
sense. "^

(c^) § 660. Historical evidence of such possession. — We come
next to the question whether we have evidence from his-
demonoi- tory that there has ever been such a systematic devia-
bf^aSreS*^ tion from the Divine policy as is implied by the entrance
phiioso- Qf specific evil spirits into specific human bodies, fol-
lowed by a supernatural subjection of the will if not by
a merging of the individuality of the latter in the former. There
is little doubt that this was taught by the ancient philosophers.
Plato unites in expressly asserting the existence of demons, who, on
his theory, are the sole supernatural agencies by which the Divine
will operates on the human heart. liar to batfj.6vtov fxifu^i iatt Oioi n

xat, Oryjrov. And again Epfirjvsvov xai 8 lanopO ftevov 9toii ra rtap' ivOpurtav,
xat dvOpartoti ia rtapa OiiLv, tujv fxhv tdi 5fjj-!ft5 xai Ovaiae, tuv hi raj irttra^ftf

• See Physics and Physiology of Spiritualism and Animal Magnetism,
Spiritualism, by W. A. Hammond, by G. G. Zerffi, London, 1871^
M.D. : New York, D. Appleton & Co.,
1871.

544

FANATICO-MANIA.

[§ 661.

ti xai d/iotSdj tZv Ovai^v.'^ He tells US that demoniacs do not use their
own dialect or tongue, but that of the demons who have entered
into them.^ Lucian declares " the j^atient is silent : the demon re-
turns the answer to the question asked." And yet at the same
time it would seem that the possibility of the cure of the demoniacs
by medicine was recognized, which would scarcely be the case if
the malady was regarded as exclusively supernatural. Thus we are
told, " Helleboro quoque purgatur lymphaticus error. "^ And
Josephus and the Jewish physicians speak of medicines composed
of stones, roots, and herbs, being useful to demoniacs.^

§ 6G1. With regard to the New Testament history, two views
have been taken, each of which has the sanction of au- conflict of

thorities distinguished both for learning and for loyalty opinion as

to 3.u.Ln0—
to the Chi-istian cause. On the one hand, it is urged rityofNew

that the language of the Gospel writers is express to the on the sub-
very point ; on the other, it is maintained that the ac- ^'^^^'
counts given by them may all be understood as exhibiting no more
than the phenomena of certain diseases, particularly hypochondria,
mania, and epilepsy ; that the popular terms were used to describe
these diseases, just in the same Avay that "Possession" (Besessen-
heit) is now used by some of the most technical German psycholo-
gists to describe the same thing ; and that the sacred penmen meant
to convey no more than that the patients were affected with the
complaints which those phrases described.^

' Plato, Sympos., pp. 202, 203. Lip-
sis, 1829, p. 252. See also Plutarch,
De Defect. Orac. Farmer's Essay on
the Demoniacs.

2 Plato, apud Clem. Alex. Strom. I.
405, Oxon.

3 Seren. Sammon, c. 27, v. 507.
« Gittei, f. 67.

5 The student is referred to a very
comprehensive article on this point, by
the Rev. J. F. Denham, of St. John's
College, Cambridge, in Kitto's Bib.
Cyc, tit. Demoniacs, in whicli the argu-
ments on both sides are very fairly ex-
hibited ; to Farmer's Essay on the De-
moniacs ; to Jahn's Biblisches Archii-
ologie ; to Archbishop Whateley's

VOL. I. — 35

Lectures on Good and Evil Angels ;
to Winer's Biblisches Real Worten-
buch, art. " Besessene ;" to Moses
Stuart's sketches of Angelogy, in Bib-
liotheca Sacra, 1843 ; to Bishop Bur-
gess' sermon on Demonology, in the
Phil, coiirse of Lectures on Evidences,
Phil. 1854; to President's Appleton's
discourse on the same ; and to a very
brilliant though eccentric treatise, pub-
lished under the title of " The Apoca-
tastasis, or Progress Backwards," Bur-
lington, Vt., 1854. See also " Physiology
of Soul and Instinct," by Dr. Martyn
Paine, New York, 1872. See an article
by R. W. Emerson, North American
Rev., No. 124, p. 179.

545

§ 662.] ME^TTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

§ 661 a. But TN-ithout any further attempt to determine the question

Avhether demoniac possession is tau^rht as a fact by his-
Demoniac . . .

possession torj, either sacred or profane, we revert to the inquiry

novr exist. ^^ to whether it exists at the present day. x\nd the
analysis we have just given of the phenomena on which
such possession now rests, justifies us in saying, that in a lego-
psychological view, we have no evidence of any such present exist-
ence. All modern phenomena can be satisfied by the recognition
of the independent existence of that species of mania which causes
an insane belief in the patient that he is possessed with a demon. ^

"Where insanity is substantively proved, then supposed super-
natural direction to commit an ofi"ence is a defence to an indictment.
It is otherwise, however, where the defendant is sane, for the sane
are responsible for the rightfulness of their conclusions, so far as
these conclusions exhibit themselves in overt acts.^

(5) Religious insanity/.

(a^) § 662. Christianity, taken in its practical sense, has no
tendency to produce insanity. — " To tell a man he cannot save
himself, but that if he trust in God, God will save him" — we
paraphrase a passage from Coleridge — " is the lamb in wolfs

' Schiirmayer, GericM. Med. § 550. p. 214. (Infanticide by a demoniac.)

And see Essays on Derangement in con- Henke's Zeitschr. 27 Bd. p. 330 (Peri-

nection with. Religion, by John Clieyne, odical Demonio-mania). Demoniacal

M.D., F.R.S.E., M.E.I. A., Physician- possession, as Siebold (Gericht. Med. §

General to His I\Iajesty's Forces in Ire- 210) very justly remarks, "was much

land : Dublin, 1843, p. 68, etc. On the more common in former days than the

subject of demoniacs generally, Whate- present, and of this, to say nothing of

ley's Good and Evil Angels, Lecture the New Testament period, illustrations

VI. For a case of supposed Demoni- may be found in the many cases of

acal Possession, see Journal of Psycho- witches, seers, and soothsayers of the

logical Medicine, vol. iii. p. 262 ; Metz- middle ages. The Convulsions, etc.,

ger's verm. Schrift. Bd. 3, s. 217 ; Ces. of St. Medard fall under this head.

Ruggieri's history of the self-crucifixion See Hecker on the Dancing Mania,

of M. Lovati, at Venice, translated by Berl. 1832. Published also by the

Schlegel, Rudolst, 1807. (In the lat- Sydenham Society. And also a series

ter case, the patient first cut off his of very curious and valuable articles

own private members, and then cruci- on Pythonic and Demoniac Possession,

fied himself.) Henke's Zeitsch. E.-H., in Dublin Univ. Mag. for Sept. and

11 s. 291. (Two Swiss girls, who immo- Oct. 1848, for March and Dec. 1849,

lated themselves.) Henke's Zeitschr. and for January, 1850.
Bd. 47, p. 447. (Pyl's essay, 6Samml. 2 Supra, §§ 146-162.

546

RELIGIOUS INSANITY. [§ 663.

clothing ; to tell him that he can save himself without help is the
wolf in lamb's clothing." The first is mercy in a dress of severity ;
the second cruelty in a dress of mercy. " Only try," says the
philosopher, " trust in yourself, and you will conquer this evil
habit." " But I liave tried — I have trusted in myself — I have
failed, and I know that if I am to be judged by my works, I will
be condemned." "Only try," says Christianity; "throw your-
self for mercy on Christ — He will supply all your wants, will
make up all your deficiencies, and ^^ill save you in the end, if you
but give a childlike faith to Him." Now, which of these two doc-
trines is the least likely to agitate the mind — that" which thus offers
immediate pardon and future peace on the sole condition of present
repentance and trust, or that which makes salvation dependent on a
calculation of the sins and the good deeds of the past — which makes
it necessary, before a sure conclusion be reached, that the most
secret recesses of memory be searched — and which after all leaves
the inquirer with a crushing consciousness of an evil nature which
infuses sin into his very thoughts, and for which there is neither
atonement nor cure ?

The moral bearing of this question is thus stated by Sir James
Macintosh : " The enormities of Tetzel found Luther busied in the
contemplation of the principle which is the basis of all ethical judg-
ment, and by the power of which he struck a mortal blow at super-
stition. Men are not made righteous by performing certain actions
which are externally good ; but men must have righteous principles
in the first place, and then they will not fail to perform virtuous
actions." " The general terms he used, enunciate a proposition
equally certain and sublime, the basis of all pure ethics, the cement
of the eternal alliance between morality and religion, and the badge
of the independence of both of the low notions and dim insight of
human laws."

§ 663. "But predestination?" There is no doubt, that, if the
doctrine of predestination be unduly dwelt upon, it may injuriously
aff"ect the brain ; but this is not a religious difficulty. Predestina-
tion operates as eff"ectively on things temporal as on things spiritual.
The loss of a friend, the purchase of a house, my going on a journey
to-morrow, my taking a book this next moment from the library by
my side, are as much the matters of foreordination as are the great

547

§ 665.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

conditions of the future. If religion be abandoned because it in-
volves such speculations, so must all human thought whatever.^

§ 664. Reducing the controversy within its proper limits, the
-p contending views may be thus stated : Philosophical

cai neces- necessity consists of the divine sovereignty, incorporat-
libertarian- ing within itself, and recognizing as an independent
ther'incon- power, free agency; libertarianism, of free agency,
sistentwith capable, within its own range of action, of voluntary
choice, but dependent for self-renovation on divine grace.
In other words, each system consists of the same two great truths
apparently hostile, yet ever consistent in human consciousness.
Law is sovereign ; will is free. If, in respect to the question of
the primacy of these truths, there should be great diversity of opinion
— if by one class of thinkers the one is placed first, and gazed at
with peculiar reverence, if by another the other — this is no more than
we find in civil society, where the two parallel elements of indi-
vidual liberty and governmental authority are subject to the same
treatment. The question is one of temperament. In sociology we
find, on the one side, those who look up with peculiar reverence to
the conservative power of government, who distrust the capacity of
bodies of men for self-government, who turn fondly to the past and
sadly to the future ; on the other side, those who, holding that true
conservatism requires constant change in order to withstand the
dilapidations of time, have an a 2y')"iori tendency to reforms, and
look upon the past mainly as a platform on which to raise the
•achievements of the future. To the struggles of these two classes of
opinion— the conservative and the reforming — we owe a great part
of the healthy action of society. No man would now affirm that
either class possesses the right solely, or that the apparently hostile
truths of human independence and of human subordination are not
concurrently recognized in political economy. Among those engaged
in marshalling the two cardinal propositions of metaphysical theology
we may call for the same charity.^

§ 665. As is remarked by Dr. Rush, in Christian countries de-
„ ,. . partures from the Christian faith (e. q. infidelity and

Relig-ion ^ . .

>conduciye atheism) are "frequent causes" of insanity. And the
same is equally true of departures in the direction of

' :See supra, § 147- ^ Wharton on Theism, § 128. See

also supra, § 147.

548

RELIGIOUS INSANITY. [§ 666.

ignorant and fanatical superstition. The former position is readily
explained. The soul, as well as the body, to enable it to stand
steadily, requires that the eye shall be fixed upon some distant and
external point. No man, for instance, can stand for any time on
one foot if he fixes his eye on his own person ; and he succeeds in
maintaining his upright position precisely to the extent he is able
to fix his eye firmly on a point in the distance. And in a psycho-
logical view this is readily explicable. It is only by the recognition
of a future state that the soul can be effectually steadied in this.
And it is precisely such a system as the Christian religion describes
— one which affords a positive assurance of immortal peace to those
who seize upon it for their portion — which, while it recognizes that
innate depravity which the heart is but too ready to testify to from
its own experience, promises divine aid in the struggle — which
announces the pardon of past sin, while it affords the aid and succor
of divine grace.

" I envy no quality of the mind or intellect in others, nor genius,
nor poAver, nor fancy," says Sir H. Davy : " but if I could choose
what would be most delightful, and, I believe, most useful to me, I
should prefer a frm religious belief to every other blessing : for it
makes life a discipline of goodness ; creates new hopes when all
earthly hopes vanish ; and throws over the decay, the destruction
of existence, the most gorgeous of all lights ; awakens life in death,
and calls out from corruption and decay, beauty and everlasting
glory."

The habitual practical recognition and adoption of such a system
as this must necessarily generate a sobriety of temper, which will
of all others be the most distant from derangement. That the re-
ception of Christianity, whether real or nominal, should cure in-
sanity, is no more to be expected than that it should cure the smallpox.
If it did — if a special miracle was wrought for the purpose of de-
stroying the original characteristics of each individual — it would
not only destroy moral agency and hence break up probation, but
would produce an almost entire derangement of human affairs by
obliterating the marks of individuality, to say nothing of identity.

§ 666. To the same effect are the following observations of
Dr. Copland : " It must not be supposed, from what I have ad-
vanced, that the Christian religion is truly chargeable with causing
insanity ; it actually has an opposite tendency. Mistaken views,

549

§ 667.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOaiCALLY.

excessive fervor, unfounded fears, and various feelings arising from
these sources, are the only causes of insanity in connection with
religion. Among those who entertain just and sober opinions on
religious topics — who make Christian doctrines the basis of their
morals, the governors of their passions, the soothers of their cares,
and their hopes of futurity — insanity rarely occurs. The moral
causes of derangement which would not fail of producing injurious
effects on others prove innocuous in them, for these causes would be
met by controlling and calming considerations and sentiments, such
as would deprive them of intensity or neutralize their effects.
Truly religious sentiments and obligations soothe tiie more turbu-
lent emotions, furnish consolations in affliction, heal the wounded
feelings, administer hopes to the desponding, and arrest hands of
violence and despair."^

§1 667. And the testimony of Dr. Cheyne, who stood for many
years at the head of the medical profession in Ireland, occupying
the responsible post in that kingdom of physician-general to the
forces, is equally emphatic : " Our experience of, and inquiries into
the nature of insanity, during a period of forty years," he says,
" enable us to say that such cases as that wdiich we have just re-
lated" (those of insanity from morbidity of the religious affections)
" are not in the proportion of one in a thousand to the instances of
insanity which arise from wounded pride or disappointed ambition. "^
" True religion," he tells us in another place,^ " is a preservative,
although not a complete preservative, against derangement of the
mind. We have no intention of concealing that we have known in-
stances of insanity among believers, but it was not caused by their
creed. We have also known instances in Avhich all sense of religion
has been permanently destroyed by insanity. Of such cases we
would remark, that the believer has no right to expect for his
believing friend exemption from evils arising from the state of
the body on which insanity always depends. Let him moreover
recollect, that as total insanity puts an end to moral accountability,
nothing which may take place during a paroxysm of the disorder
can affect the future happiness of his friend."

' Copland, Med. Die, art. "In- ^ Cheyne on Derangement in Con-
sanity." nection with Religion, pp. 178, 179.

3 Ibid. p. 146.
550

RELIGIOUS INSANITY. [§ 669.

§ 668. These views are not uncorroborated by practical observa-
tion. It is not necessary to record the cases where mania, parti-
cularly that of the suicidal cast, has been generated by an undue
estimate of the importance of this life's incidents as compared with
those of the next.^ On the other hand, we may find a pregnant
illustration of the converse process in the fact mentioned in the
thirteenth report of the Hartford Retreat, that two hundred and
eight farmers, fifty-eight merchants, and thirty -four day-laborers
have been admitted into that institution to four clergymen. So a
report of the New York State Lunatic Asylum, transmitted to the
legislature on February 7, 1860, and which therefore covers a
period of uncommon religious interest, out of 812 cases gives only
six which are attributed to " religious excitement." The cases
attributable to causes which religion could have corrected are ten
times that number. Dr. Ray, in a report of the Butler Hospital for
the Insane, says : " I believe — and it is in some measure the result
of considerable observation of various psychological states — that in
this age of fast living nothing can be relied upon more surely
for preserving the healthy balance of the mental faculties than
an earnest practical conviction of the great truths of Christianity."

{¥) § 669. What is called religious insanity is produced: (a^)
By a departure from practical Christianity ? — John Newton was
the religious adviser of Cowper, and has been charged by Hayley,
if not by Southey, with having aggravated, by his emotional theo-
logy, Cowper's insanity. Yet how unjust this is, Newton's ear-
nest and repeated appeals show. " He who wants to tell expe-

i Dr. Rash, after noticing the fact * Shakspeare thus says :—

that 150 suicides took place in Paris in "Because you lack the faith that others

the year 1782, and but 32 in London, have,

says, "It is probable the greater per- You judge it straight a thing impos-

tion of infidels in the former than in sible

the latter city, at that time, may have ^o compass wonders save with help of
occasioned a difference in the number

of deaths in the two places, for suicide Of alleged homicidal insanity pro-
will naturally follow small degrees of duced by " fanatico-atheism," a case
insanity, where there are no habits of of much interest, that of Bieland, who,
moral order from religion, and no be- in 1869, shot a Berlin clergyman while
lief in a future state." — Rush on the engaged in performing divine service,
Mind, p. 69. will be found in the Appendix to 3d

edition of tliis work, § 833.

551

^ 670.1 MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

riences," said he at one time, " will soon be creating experiences
to tell." " A humble, dependent frame of spirit, perseverance in
the appointed means, care to avoid all occasions of sin, a sincere
endeavor to glorify God, an eye to Jesus Christ as our all in all,
are sure indications that the soul is thriving, whether sensible con-
solation abound or not. Neither high nor low frames Avill do for a
standard of faith ; self may be strong in both."^ Could there be
wiser advice than this for the purpose of steadying the mind ? And
is not the certain faith on an intrinsic Providence far more likely
to conduce to mental peace and rest than that flurried and fluctuat-
ing introspection which makes salvation depend upon one's present
impression of self ?

§ 670. Two cases of alleged fanatico-mania occurred in 1858,

one in Germany and one in New Haven, which, from

unscrip- their striking similarity, as well as from the peculiar

turai super- religious psychological phenomena by which they were
naturalism. o i j o r j j

attended, should receive the thoughtful attention of all
in any wise concerned in the care of the mind. In both instances
the scene was the bosom of a religious society, whose leaders pre-
tended to have received special internal revelations from God. In
each case, the " prophets," as those who claimed such revelations
called themselves, asserted the right to suspend human laws and
even divine precepts in obedience to the mandates which they main-
tained were revealed in the chambers of their own souls. It is
difficult to deny that they were in one sense sincere. However
much the delirium in which these visions were heard was originally
of their own creation, it had become, as delirium tremens is to the
man who at first made himself voluntarily drunk, so wrought into
the system as to be convulsive, if not irresistible. In the New
Haven case, though the investigation was not conducted by men of
the highest skill or most mature experience, this opinion was sanc-
tioned by the verdict of a jury. In the German case the most ex-
perienced psychological physicians united in the position that the
delusion, whatever might have been its origin, had finally become
involuntary. In the latter case, the parties had joined a sect
called the "Apostolic Baptismal Community," which is a sort of
composition between the German Anabaptists (Wiedertaufen) and

! Cited in " Man, Moral and Pliysi- great interest in reference to religion^
cal," by Rev. J. H. Jones, a work of insanity and melancholy.

552

RELIGIOUS INSANITY. [§ 671.

the Irvingites. Their ministry is divided into apostles, prophets,
evangelists, shepherds (Hirten), and deacons, all distinguished hj a
special costume. Thej pretend to special and miraculous commu-
nications of. the divine will, which communications are attended on
the part of the recipient by convulsions, which, however they may
have been originally feigned, have in many cases assumed the in-
disputable type of cataleptic ecstasies. In these the patients speak
with what are called unknown tongues, and prophesy. It so hap-
pened that at one of their meetings two of the ministers received,
as they declared, a direct supernatural command to kill one of their
associates, and then to bring him to life again. The first injunction
they executed, but failed in the second. The question of their re-
sponsibility being submitted to medical examination. Dr. Franz, a
very distinguished psychologist, came to the conclusion that their
moral sense had become so utterly corroded as to make perpetual
confinement in a madhouse the only discipline to which they could
properly be subjected.

§ 671. Now, to what are these phenomena to be traced? To
Christianity, as one class of thinkers is but too ready to say ? We
apprehend not, for Christianity is emphatically a religion with a
written and positive, as distinguished from an emotional and mystic,
creed. Is it not rather in the departure from the Scriptural rule
Ave may find the origin of these melancholy excesses ? Let us trace
them, for instance, to their source by those stepping-stones which
so often enable us to follow the progress of an error from its incep-
tion to its close. TaTie, for instance, such a case as that of the
Rev. David Austen, whose sad history is so touchingly told by Dr.
Sprague in his history of the American pulpit. Mr. Austen began
as a Presbyterian clergyman, and was marked, not only by his
purity of life and his talents, but by his great efiiciency as a pastor
and influence as a preacher. Gradually, however, the objective
side of revelation began to sink in his estimation, and the subjective
to become exaggerated. He had visions which overrode the written
word. The Lord had been pleased, he said, to deposit in his breast
the secret of His coming. This and other revelations Mr. Austen
began soon to proclaim with serene confidence and with startling
effect. He fixed an actual day, in which he said the event Avas to
take place. Crowds attended, and an excitement folloAved, which,
if it did not cost others their reason, at least cost him his. The

553

§ 671.] MENTAL UXSOUXDXESS COXSIDERED PSYCHOLOGICALLY.

fact that the sun set cahnlj on the predicted day did not shake his
confidence. " The hour on the dial-plate," he said, " may have
been mistaken ;" but it was none the less true that the sun of the
Divine Omniscience poured infallible light on the disk of his soul,
opening to it those mysteries which the sublime imagery of the
Apocalypse conceals. The Jews were to form an important element
in the approaching catastrophe. They were to collect, he was as-
sured, at New Haven preparatory to their migration to the Holy
Land. He proceeded there to buy wharves as a depot for their
embarkation. Being a man of considerable property, he obtained
credit and bought four times as much land as he could pay for.
Then came a crash which ended with his arrest and imprison-
ment. When he at last emerged, it was only as a broken-hearted
as well as a deranged man, whose melancholy office it was to hover,
during the remainder of his sad and long life, as a ghost over the
grave of his dead usefulness.

JSTow, is it saying too much for us to attribute these and similar
cases of supposed supernatural inspiration to that introversion of
the spiritual and intellectual powers which makes personal emotions
and experience the subject first of tender nursing and then of fatu-
ous idolatry ? " Come, let us look at this sensibility of mine !"
cries the enthusiast, as he lifts it up in the air and ponders over it
admiringly. The consequence is, that his perception of his emotions,
as all introverted perceptions are, becomes exaggerated and con-
fused. We all have familiar illustrations of this in the way in
which when we turn the perceptive powers inward on a lost memory,
e. f/., the spelling of a forgotten word — the more we think about it,
the further off we get. The very act of introversion seems to par-
alyze our powers. So, also, if the public speaker, while in the flow
of earnest thought, finds his consciousness suddenly turned in upon
himself, the moment he thinks of Jiimself, he loses his balance.
This is thus forcibly illustrated by the Rev. C. H. Townsend, late
of Trinity Hall, Cambridge, in his very curious work on Mes-
merism : — ^

" Any admixture of the introspective consciousness detracts from
the perfection of one's acquired and habitual motions as much as it
spoils the freedom and bold expansion of our thoughts. Of this we

> London, 1844, p. 20.

554

RELIGIOUS INSANITY. [§ 673.

may soon convince ourselves. Though generally insensible of the
act of breathing, we may, by attention, become aware of the pro-
cess. What follows ? An immediate sense of uneasiness and in-
terruption of that regular motion which seems to go on so well of
itself. Again, that winking of the eye, whereby the organ is
healthily preserved, becomes a torment if we think about it. Again,
too, every musician must have felt that when he has learned to play
a piece of music by heart, if he tMnks upon the direction of his
fingers, he plays false.- Let him trust to the simple memorial con-
sciousness of his physical being, and he does not err."

§ 672. The true test, we apprehend, is to be found in the nature
of the consciousness on which the claim to a Divine influence rests.
If this consciousness be of the action of God's spirit in producing
specific graces, it is in harmony with God's word. If, on the other
hand, it amount merely to a vague but arbitrary idea of the pres-
ence of God's Spirit without such signs, it is open to grave ques-
tion. Coleridge strikes at this when he tells us that one of the
phenomena attending the possessors of fanatical delusions is, " that
it is not enough that you grant them a consciousness of the gifts
and graces infused, or an assurance of the spiritual origin of the
same, grounded on their correspondence with the Scripture promises,
and their conformity with the idea of the Divine Giver. No ! they
all alike, it will be found, lay claim, or at least look forward to, an
inward perception of the Spirit itself and of its operating."

§ 673. Let us reduce this test to practice. Take, for instance,
the inspiration of Brigham Young. " It is the Spirit working with-
in me" to do, not this or that specific work of grace, but whatever
work, no matter what may be its nature, in which I may happen to
be engaged. So it was with the Anabaptist fanatics at Munster.
The human will is not subjected to the Divine Spirit, but the Divine
Spirit to the human will. The man is not judged by his conformity
to the Spirit, but the Spirit by its utterance through the man.
What Brigham Young claimed Avas not simply to act in the Spirit,
for, if so, his claims could have been tested by the written word,
and by the law of conscience. But he claimed to be the Spirit's
organ, and thus to clothe with divine power his human utterances.
So it is with the maniac who murders his wife and children under
an alleged religious impulse. He bases his claims to the inspiration
of the Spirit, not on the gracious afiections wrought in his soul, but

655

§ 674.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

in the arbitrary pretence of a divine presence incorporating itself
in, and manifesting itself through, his own will.^
• § 674. The history of religious insanity in this country goes a
great way to fortify the position that it is to a departure from the
gospel system that most cases of what may be called dgemonio-
mania may be traced. On this point a thoughtful writer, whose
attention has been particularly given to this topic, thus speaks: — ^

" Passing over the many instances of such erratic and fanatical
extravagances which history records, and to some of which the
review before us alludes, we will glance at two recent and notable
ones occurring among ourselves, that we may the better judge
whether religion makes men insane, or whether it merely fails, in
many cases, to bring them to their right mind ; so that it may be
said that they continue insane in spite of all that religion can do
for them.

" A clergyman, in infirm health, sought to amuse his listless
hours by framing a puerile romance, after the manner of eastern
fabulists, with names, dates, and localities bearing no relation to
sober history. These writings, in some way, without the author's
privity, came into the hands of strangers. In 1826, one Joseph
Smith professed to have found, in the town of Palmyra, N. Y.,
some brass plates inclosed in a box, such as is used for packing
window-glass. Of these plates he pretended to be the interpreter.
With a stone in his hat, and his hat over his eyes, he dictated what
a man, named Harris, wrote. In consequence of some dispute,
Harris departed before the interpretation was ended, and one
Cowdrey took his place, and completed the ' Book of Mormon.'
Smith then avowed himself a prophet, and the founder of a new
dispensation, and gathered many disciples, who accompanied him to
the State of Missouri, where they established a city and built a
temple. We need not pursue their adventures.

" The contents of the Book of Mormon, or the Mormon Bible,
were neither more nor less than the selfsame tales of romance

' See on this topic the remarkable reader is referred for a very effective

volume, which has been already no- exhibition of the absurdity of the

ticed, iinder the title, " The Apocatas- whole spirit-rapping system,

tasis, or Progress Backwards, a new ^ Relations of Religion to Diseases of

tract for the times, Burlington, Chaun- the Mind. Phila. : J. W. Moore, 1850.
cey Goodrich, 1854," to which the

556

RELIGIOUS INSANITY. [§ 674.

which the invalid clergyman amused himself with writing. A large
number of persons, however, embraced the delusion ; many aban-
doned a profitable business, some sacrificed large property, and not
a few were ruined in soul, body, and estate, by putting trust in
this barefaced imposture.

" It is perfectly obvious, we think, that a mind well informed
and established in the received doctrines of the Christian faith, and
endued with but very ordinary discernment, would be proof against
so bold an imposture. If any intelligent and respectable persons
joined the Mormon ranks, that, of itself, shows either a predisposi-
tion to insanity, which this fanciful revelation was fitted to develop,
but with which religion has no connection whatever ; or that there
is a deficiency of discernment, or a neglect or abuse of the reason-
ing powers, or a morbid love of distinction and notoriety, to gratify
which they are willing to sacrifice all other interests. If a judi-
cious faithful, parent or Sunday-school teacher had given direction
to their inquiries, and furnished their minds with just and system-
atic, though exceedingly simple, views of the doctrines of revela-
tion, they Avould have had balances wherewith to weigh the pre-
tensions of the new prophet, and by means of these vanity and
falsehood would have been made manifest.

" At a somewhat later period, a man named Miller (a Baptist
minister, as it is said) professed to have had a revelation of the
precise day on which the second advent of Christ would occur, and
when his people would be called,to rise and meet him in the air !
He and his deluded apostles, or agents, went from town to town
and from house to house, ' leading captive silly women,' and im-
posing upon the credulity of the ignorant. So settled was the
conviction of many minds of the truth of his predictions, that they
arranged their worldly affairs in reference to it, as an ascertained
event, and made no contracts extending beyond the designated day.
Prosperous citizens sold their estates, and declined the ordinary
avocations of life, that they might give themselves Avholly to the
business of preparation ; and, as the eventful period drew nigh,
many evinced the sincerity of their convictions by providing what
they regarded as suitable apparel for an aerial flight, and some
actually assembled in groups upon summits which might be sup-
posed most favorable to an early and easy ascension ! The dupes
of the false prophet were counted by thousands. Scores were com-

557

§ 675.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

mitted to insane asylums, who were crazed with excitement, or with
disappointment ; and many within and without the charmed circle
were doubtless left to believe that all revelations are as idle and
delusive as Millerism.^

" We need not say how the plainest Scriptures must have been
wrested from their true intent and meaning, nor how deaf an ear
must have been turned to the voice of reason and common sense,
before the mind could have surrendered itself to such a fancy.
There is not a trace of insanity, however, in any stage of the pro-
cess. It is a simple, voluntary subjection of reason to the influence
of imagination or superstition, instead of a childlike submission of
all the powers and faculties of body and mind to the revealed will
of God. And although we may admit that such delusions have in
many instances been the ostensible cause of insanity, as our hospital
returns allege, ' revealed religion' is no more responsible for them
than for paroxysms of mania-d-potu. It is because the plain truths
of revealed religion were misapprehended, perverted, or rejected,
that the imposture succeeded, and the mind was led captive by
Satan at his will. It is not strange that a vessel left to itself on a
stormy sea should, sooner or later, go to the bottom, or fall into the
hands of wreckers. "^

§ 675. The topic of the appeal to the selfish element has already
been collaterally noticed.^ In all periods of mental ex-

DcsirG for

sympathy citement, there is a tendency to claim sympathy from
comes^^" outside. A person is struck down by real grief. When
chronic and -^^ ^]^^g ^i^^^^ ^j^g sympathy of friends is attracted by pecu-
liar demonstrations of broken-heartedness. These de-
monstrations are at first real, but, in consequence of the commisera-
tion they receive, are permitted to continue without restraint, and
then become at least partially affected. " The pleasure of receiv-
ing unwonted sympathy," to recur to a passage from Dr. Carter,
already cited, " once tasted, excites a desire for it which knows no
bounds ; and, when the fits have become famihar occurrences, and
cease to excite attention, their effect is heightened by the designed
imitation of some other disease." There is a strange union in such
cases of the voluntary with the involuntary, which partly subjects

> See an essay on this point, in 1 called Diseases of the Mind. Phila-
Am. Journ. of Insanity, 249. delphia: J. W. Moore, 1850.

2 Relations of Religion to what are ^ gee supra, § 517.

558

RELIGIOUS INSANITY. [§ 676.

ci'aft to convulsion, and partly convulsion to craft. But after a
while, particularly if the petting system on the part of friends con-
tinues, the disease becomes chronic, and degenerates into hysteria.
Even then there is cunning employed in the resort to new devices
by which fresh sympathy can be collected when the old stock is
exhausted.

§ 676. The same influences exist in periods of popular excitement,
either on religion or any other prominent topic. Let the
love of attention be appealed to — let public interest be a germ of
drawn to persons exhibiting certain symptoms — and these ^^ ®"^"
symptoms will be assumed, until at last hypochondriasis or hysteria
follows. Intense self-consciousness, the power of imitation, and the
desire to excite interest, generate this form of disease, which, in its
turn, generates a refined and elegant but misanthropic selfishness.

" There is one perversion of moral feeling," says Archdeacon
Stopford, in a pamphlet published at the time of a revival in Ulster
in 1858-9, " which always exists in hysteria, and more than any-
thing else may make us doubt whether hysteria be chosen of God
as a means of conversion, and that is selfishness. Now, I protest
against being thought to imply that all persons who are hysterical
are constitutionally selfish. I have known the contrary in several
instances, and I know the effect in such cases of appealing to un-
selfish feeling ; but it will be easily understood from the foregoing
account, that the predominance of the idea of ' self as the object of
the mind is of the very essence of the disease, and it is the neces-
sary consequence of this, if allowed to loroceed, to engender selfish-
ness ; the woman who habitually indulges hysterical feeling, becomes
the most selfish and unsympathetic being in the world, except one
— the man who indulges and cherishes hypochondriacal feeling.

" I must suggest caution in coming to an opposite conclusion on
apparent evidence to the contrary in mild forms of hysteria in its
incijjient stages. I struggled long against admitting that the pre-
dominance of the idea of ' self in hysteria always contains the germ
of selfishness ; but I had to admit the conviction, that this is true.
As hysteria grows by habit or indulgence, all its evils become appa-
rent ; but a trained observer detects the germs in its origin."^

' In connection with the above, it is remarks of a sagacious and experienced
well to call attention to the following physician, Dr. Francis: "In at least

559

§ 678."] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

(5^) § 677. By constitutional idiosyncrasies. — This topic has
been previously noticed.^

^ 678.

Cannot per

se confer
irrespon-
sibility.

(o) Fanatico-mania as a defence.
Crimes committed under the influence of fanatical im-
pulses, such as those which have been just mentioned,
may be considered in the same light as crimes committed
in a state of drunkenness. In the latter case, an indi-

tliree cases out of four, I have found
hysteria associated with uterine de-
rangement, and the restoration of the
menstrual function to its healthy state
has proved the precursor of the re-
moval of the hysterical annoyance."
Hysteria, again, may manifest itself
chiefly hy disorder of the mental facul-
ties, and the moral feelings and
emotions. "The mental aflfections,"
ohserves Dr. Copeland, "connected
with hysteria may be referred, 1st,
to certain states of monomania, among
which excited desire, amounting in
some eases to nymphomania, may be
enumerated ; 2d, to ecstasies and men-
tal excitement, in some cases of a
religious nature, in others of different
descriptions ; 3d, to a state of somnam-
bulism ; 4th, to a form of delirium,
generally of a lively character, with
which various hysterical symptoms are
often conjoined. Hysterical females
are not merely capricious or whimsical,
but they often become enthusiastic for
a time in the pursuit of an object, or
in cherishing an emotion by which
they have been excited. In many such
cases the nervous excitement and vas-
cular turgescence of the uterine organs
determine the character of the mental
disorder ; elevating certain of the moral
sentiments, or of the intellectual mani-
festations, to a state of extravagance,
passing in some instances into delu-
sion or monomania. Many cases of
puerperal mania are merely extremes
of the hysterical disorder of the moral
and intellectual powers or states of the

560

mind. All these more extreme forms
of mental affection are observed only
where, in connection with much local
or uterine irritation, there is a great
deficiency of nervous energy generally,
and of mental power in particular ; or
where, with such deficiency, there has
been much injudicious culture, or per-
version or improper excitement of the
imagination. Females sometimes be-
come passionately attached to an object,
and this passion may advance even to
nymphomania or monomania." A dis-
eased state of feeling (viewing feeling
and thought as constituting the two
factors of the mind) is the main in-
gredient of religious insanity in which
the sexual sympathies are involved.
" No physiologist," says Dr. Maudsley,
in his lectures published in 1870 (^Body
and Mind, London, 1870, p. 85), "can
well doubt that the mystical union
of the sexes lies very close to a union
that is in no wise mystical, when it
does not lead to madness." He cites
to this effect the trances of St. Theresa
and St. Catharine de Sienne ; and he
mentions as more extreme examples
the cases of those insane women who
believe themselves to be visited by
lovers or ravished by persecutors dur-
ing the night. And he adds that
"sexual hallucinations, betraying an
ovarian or uterine excitement, might
almost be described as the character-
istic feature of the insanity of old
maids." See supra, §§ 322, 517.
1 Supra, §§ 345-378.

POLITICO-MANIA.

[§ 681.

vidual who knowingly takes intoxicating liquor cannot defend
himself on the fact of guilt by proof of his intoxication. It is
otherwise, however, Avhen the guilty act is the immediate result
of mania- d-potu, in which case the malady has assumed the shape
of a substantive and permanent type, and, like any other delirium,
is to be treated as destroying responsibility.^ In like manner, the
voluntary adoption of a belief which includes among its incidents a
known violation of law, does not relieve the party, who commits
such violation of law under such influences, from responsibility.^
If, however, he sink into consequential delirium, and then commit
the crime, he is irresponsible.

Fanatical enthusiasm, whether religious or irreligious, does not,
therefore, bi/ itself confer irresponsibility, however much it may
mitigate the sentence imposed.^

10. Politico-mania.'^

§§ 679-681. "Politico-mania," as a specific defence, is unknown
in the courts. No doubt persons unquestionably insane have been tried

1 See supra, §^§ 146-162.

2 Ibid. See 3 Am. Jouru. Ins. 166 ;
and for report of Thorn's case, ibid.
170. See also 4 Hammond's Journal
Psyc. 657. See 102 Bost. Med. and
Surg. Journ. 265.

^ Ibid. See for a curious case of in-
fidel fanaticism, Appendix to 3d ed. of
this work, § 833.

* See on this point Influence des
Evenemens et des Commotions Poli-
tiques sur le Developpement de la
Folia, par le Docteur Belhomme, Paris,
1849 ; and a review of the same in
Journ. Psyc. Med., vol. iii. p. 31.

"Psychical infection," to use the
expressive term of EUiuger, is peculi-
arly operative in political relations.
Attempts at insurrections, acts of law-
lessness against government, murder-
ous assaults upon public officers, be-
come at times epidemic. Marc illus-
trates this by the cases in which public
conspicuous crimes have become con-
tagious ; e. rj., arson and murder. The

VOL. I. — 36

tendency to seditious violence is gene-
rated by an oppressive government
bearing on temperaments tainted with.
just such an infection.

" Certain forms of government,"
says Dr. Rush, " predispose to mad-
ness. They are those in which the
people possess a just and exquisite
sense of liberty, and of the evils of
arbitrary power against which, com-
plaints are stifled by a military force.
The conflicting tides of the public pas-
sions, by their operations upon the
understanding, become in tliese cases a
cause of derangement. The assassina-
tion of tyrants and their instruments
of oppression is generally the effect of
this disease. That madness is thus
induced, I infer from its occurring so
rarely from a political cause in the
United States. I have known but one
instance of it, and that was of a gen-
tleman who had been deranged some
years before, from debt contracted by
extravagant living. (In a government

561

§ 681.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

Politico- for political offences ; and in some such cases the defence

mania no „. -ii n -n ' i-r>

defence. 01 insanity has been successiully interposed. Uut at no

time has the defence been offered that the defendant,

sane in all other respects, was insane on the subject of government,

and therefore irresponsible for any attacks on government which he

might institute. Logically and psychologically this defence is as

good as that of any other " monomania." But practically the

position is so absurd that no defence has heretofore been bold

enough to offer it.^ For no state could, without /eZo de se, recog-

where all the power of a country is
representative and elective, days of
general suffrage and free presses serve,
like chimneys in a house, to conduct
from the individual and public mind
all the discontent, vexation, and re-
sentment which have been generated
in the passions by real or supposed
evils, and thus to prevent the under-
standing being injured by them.) In
despotic countries, where the public
passions are torpid, and where life and
property are secured only by the ex-
tinction of the domestic affections, mad-
ness is a rare disease. Of the truth of
this remark, I have been satisfied by
Mr. Stewart, the pedestrian traveller,
who spent some time in Turkey, also
by Dr. Scott, who accompanied Lord
M'Cartney in his embassy to China,
and by Mr. Joseph Rexas, a native of
Mexico, who passed nearly forty years
of his life among the civilized but de-
pressed natives of that country. Dr.
Scott informed me that he heard of but
a single instance of madness in China,
and that was in a merchant who had
suddenly lost £100,000 sterling by an
unsuccessful speculation in gold dust. "2
With regard to Mexico and China,
however, recent observations show that
these remarks should be greatly quali-
fied.

' " The British government, even in

our day, sentenced to death the Obeah
men of the West Indies, who pretended
to supernatural power in order to fo-
ment rebellion." Sir Bartle Frere,
Nineteenth Century, Dec. 1881, Am. Re-
print, 11, citing Edwards' Hist. Brit-
ish Colonies in the West Indies, vol. ii.
p. 106. The same defence was un-
availingly set up by the assassia of
Lord Mayo.

The Atlantic Monthly for December,
1881, gives an interesting article on
British state assassins and the defence
of insanity. The first case mentioned
is that of Hadfield in 1800. In this
case "Major Ryan testified that the
prisoner, in a paroxysm of madness,
came near stabbing him with a bayonet
at the Croydon barracks in 1796. John
Laine, a private, deposed that Had-
field, in the hospital at Brussels,
imagined himself to be King George,
and, calling for a looking-glass, felt
about his head for his crown of gold.
Three doctors testified to the fearful
nature of his wounds, and that the
resulting injuries had, in their opin-
ion, afi'ected his brain. Several of
Hadfield's relatives deposed that he
had, at difi"erent times, fancied him-
self to be Jesus Christ and God. On
the morning of the day on which he
attempted the king's life, as they tes-
tified, he said he had seen God in the

2 Rush on the Mind, p. HQ.

562

POLITICO-MANIA.

[§ 681.

nize the irresponsibility of such a " mania.'''' To do so would be
to give liberty to political fanaticism to execute without restraint
any crimes by which its purposes could be subserved.

night, and that he (Hadfield) had heen
dining with the king.

" The jury, without leaving the box,
found a verdict of ' Not guilty, on the
ground of insanity,' and he was there-
iipon committed to Bedlam ' during
his majesty's pleasure.' This escape
of Hadfield through the loop-hole of
insanity was strongly resented by the
public opinion of the day, and the re-
sent found voice in parliament. Some
changes in the law followed, of which
more hereafter."

Bellingham, in 1811, was prosecuted
for shooting Mr. Perceval. Bellingham
had been a long and persistent claim-
ant for compensation for services he
claimed to have rendered the govern-
ment. On being asked on trial what
he could say in his defence, he began
" by complaining that the papers
necessary to his defence were taken
out of his pocket when he was arrested,
and had not been returned to him. He
then expressed his ' great obligation
to the attorney-general for the objec-
tion which he has made to the plea of
insanity,' and made a rambling speech,
of which the following extract is a fair
specimen : —

" 'I think it is far more fortunate
that such a plea as that should have
been unfounded than it should have
existed in act. That I am or have
been insane is a circumstance of which
I have not been api^rised, except in
the single instance of my having been
confined in Russia ; how far that may
be considered as affecting my present
situation it is not for me to determine.
I beg to assure you that the crime
which I have committed has arisen
from compulsion rather than from any
hatred of the man whom it has been

my fate to destroy. Considering the
amiable character and the univers-
ally-admitted virtues of Mr. Perceval,
I feel if I could murder him in a cool
and unjustifiable manner I should not
deserve to live another moment in
this world. Conscious, however, that
I shall be able to justify everything
which I have done, I feel some degree
of confidence in meeting the storm
which assails me, and shall now pro-
ceed to unfold a catalogue of circum-
stances which, while they harrow up
my own soul, will, I am sure, tend to
the extenuation of my conduct in this
honorable court.'

" He then proceeded to read a long
petition about his visit to Russia ;
what he had done there for the govern-
ment ; how he had left his wife there
in great distress ; and how, since his
return, he had applied to the depart-
ments in vain for relief. At no point
in his statement did he connect Mr.
Perceval with his grievances, or ap-
pear to recognize any logical necessity
for so doing. He sat down at last, and
his doom was speedily fixed."

Edward Oxford was tried in 1840 for
shooting at Queen Victoria. He was
put on trial at the Old Bailey on July
9th in that year.

" The trial lasted three days ; Lord
Denman, Baron Alderson, and Justice
Maule on the bench, and the array of
counsel including the attorney-general
and solicitor-general (Sir John Camp-
bell and Sir Thomas Wilde), Sir
Frederick Pollock, Mr. Wightman, Mr.
Adolphus, and Mr. Gurney for the
Crown, and Mr. Sydney Taylor and
Mr. Bodkin for the prisoner. Again,
as in the case of Hadfield, the defence
set up was that of insanity. Oxford's

563

§ 681.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

counsel called witnesses to prove that
Ms grandfatlier and father had both
heen insane. His mother was a prin-
cipal witness, and testified that she
had married the would-be regicide's
father because he had threatened self-
destruction if she should refuse ; that
while she was enceinte her husband
was in the habit of terrifying her with
hideous grimaces and horrible gesticu-
lations, so that one of her children
was born, and after three years died,
an idiot. As to the prisoner, she de-
posed that he had always been an
erratic, Ticious youth, extravagantly
vain and ambitious, begging as a boy
to be sent to sea, where he believed he
would have nothing to do but strut
along the deck, give orders, and be-
come Admiral Sir Edward Oxford. A
short time previous to her confinement
with the prisoner, as she further made
oath, her husband had pointed a gun
at her head. This was the main sub-
stance of the evidence in support of
the theory of insanity.

" On the other hand, the Crown
established the facts that the prisoner
had purchased the pistols some days
before the shooting, and had practised
with them upon a target ; that he had
never at any time, by any one, been
treated as insane, and that the attempt
was made with all possible method and
deliberation. Five doctors, however,
who had examined Oxford in his cell,
testified their belief that he was insane.
The bench instructed the jury with a
heavy leaning against this medical
testimony, but, after an hour's de-
liberation, they, following the example
of their predecessors who tried Had-
field, brought in a verdict of accxuittal
on the ground of insanity. Oxford
was thereupon committed to Bedlam
for life.

"The next attempt on the life of
Queen Victoria was made on the 30th
of May, 1S42, by John Francis, aged

564

twenty. Francis discharged at the
queen a pistol loaded with powder
and to quote the language of the in-
dictment, ' certain other destructive
materials and substances unknown.'
He was convicted, and sentence of
death was passed upon him in the an-
cient form prescribed for prisoners con-
demned for high treason. This form
is curious in its antique barbarity, and
runs as follows : ' The court now de-
clares the last sentence of the law,
which is that you, John Francis, be
taken hence to the place whence you
came, and be thence drawn on a hurdle
to the place of execution ; and that
you be there hanged by the neck until
you be dead ; and that afterwards your
head shall be severed from your body,
and your body, divided into four quar-
ters, shall be disposed of as her ma-
jesty shall think fit. And may God
Almighty have mercy on your soul.'
It is perhaps needles to say that no
such revolting outrage was enacted
upon the body of Francis. In defe-
rence to the humane wish of the
queen herself, his sentence was, in
fact, commuted to transportation for
life.

"Within five weeks from the date of
this act of royal clemency, the queen
was once more assailed by one John
William Bean, a deformed stripling,
aged seventeen. On Sunday, the 3d
of July, 1842, as her majesty was going
to the chapel royal. Bean presented a
pistol at her, and snapped the trigger,
but failed to discharge the weapon.
He was promptly seized, and on the
pistol being examined, it was found to
be loaded only with powder, wadding,
and minute fragments of a clay pipe.
Bean was tried for simple misde-
meanor ; the defence of insanity .was
not offered ; and he was sentenced to
eighteen months' imprisonment, with
hard labor. In spite of the burlesque
character of this assault, the national

POLITICO-MANIA.

[§ 681.

feeling was by this time excited to a
high pitch of indignation by these re-
peated outrages, and the result was
the passing of the act of parliament
(5 and 6 Vict., chap. 51) entitled ' An
act for providing for the further secu-
rity and protection of her majesty's
person.' This is the statute to which
the late British minister at Washing-
ton, Sir Edward Thornton, referred in
his comments upon Guiteau's crime,
intimating his opinion that a like pro-
vision of law woTild have a salutary
effect in this country. It provides
that whoever ' shall discharge or at-
tempt to discharge, or point, aim, or
present, at or near to the person of the
queen,' any fire-arm, whether the
same shall he loaded or not, or shall
' strike or attempt to strike, or strike at
the queen's person with any offensive
weapon' shall be guilty of a high mis-
demeanor, and be ' liable, at the dis-
cretion of the court, to be transported
for seven years, or imprisoned, with or
without hard labor, for any period not
exceeding three years, and during
such imprisonment to be publicly or
privately whipped as often and in such
manner and form as the court shall
direct, not exceeding thrice.'

" It was the whipping clause upon
which Sir Edward Thornton laid stress.
It seems to have had a deterrent in-
fluence upon British Guiteaus, as for
seven years after its enactment the
queen was not again molested."

McNaughten's case, which followed,
has been abundantly discussed : Mr.
Drummond was shot by McNaughten
in mistake for Sir Robert Peel ; the
motive of the assault being political
disappointment. McNaughten was ac-
quitted on the ground of insanity, the
prosecution offering no expert testi-
mony to rebut that of the defence. Of
this case Dr. Taylor, in his work on
medical jurisprudence, thus speaks : —

"When we find a man, not showing

any previous intellectual disturbance,
lurking for many days in a particular
locality; having about him a loaded
weapon ; watching a particular person
who frequents that locality ; not facing
the individual and shooting him, but
coolly waiting until he has an oppor-
tunity of discharging the weapon un-
observed by his victim or others, the
circumstances appear to show such a
perfect adaptation of means to ends,
and such a power of controlling actions,
that it is difficult to understand on
what principle an acquittal on the
ground of insanity could have been
allowed. I refer here to the case of Mc-
Naughten, tried for the murder of Mr.
Drummond, January, 1843. The ac-
quittal in this case was the more re-
markable because there was no proof
of general insanity, and the crime was
committed for a supposed injury. Ac-
cording to the rules laid down by the
fifteen judges, from questions sub-
mitted to them in connection with this
case, this man should certainly have been
convicted.''''

The last English case in which politico-
mania was offered as a defence was that
of Pate, who struck Queen Victoria,
in June, 1850, on the face with a whip.
The queen was uninjured ; Pate was
tried in July of the same year.

" Insanity was again the plea relied
upon. It was proved that as an officer
in the army, his behavior had been
eccentric ; that on one occasion he had
deserted, but had been allowed to re-
join the service without punishment,
because his superior officers regarded
him as in an unbalanced state of mind ;
that in 1842, the loss of three fine
horses and a favorite Newfoundland
dog had thrown him into a morbid and
hysterical condition, and that ever
since he had acted strangely. A cab-
driver was called to the witness-stand,
who deposed that every day, at exactly
a quarter past three o'clock in the

565

§ 681.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

afternoon, for many years, he had been
hired by the prisoner to drive him
over Putney Bridge to Putney Heath ;
always taking the same route, and
stopping at the same spot. This and
a few other strange habits were shown,
and upon them Mr. Cockburn built
the theory of ' uncontrollable impulse.'
In summing up the case to the jury,
Baron Alderson, addressing himself to
this plea of uncontrollable impulse,
said : ' The law does not recognize
such an impiilse. If a person was
aware that it was a wrong act he was
about to commit, he was answerable
for the consequences. A man might
say that he picked a pocket from some
uncontrollable impulse ; and in that
case the law would have an uncon-
trollable impulse to punish him for it. '
Pate was convicted, and sentenced to
a term of seven years' penal servi-
tude."

In U. S. V. Gruiteau, Sup. Court,
Dist. of Columbia, December, 1881,
and January, 1882, the defendant be-
ing on trial for the murder of Presi-
dent Garfield, the defence was in part
an alleged belief of the defendant that
he was divinely commissioned to kill
the president, and in part an alleged
conviction that the death of the presi-
dent was necessary to establish a
rightful political influence in the coun-
try. On the legal questions of respon-
sibility involved, Judge Cox answered
the points submitted to him as follows :

No. 1.

" The legal test of responsibility,
where insanity is set up as a defence
for alleged crime, is whether the ac-
cused, at the time of committing the
act charged, knew the difference be-
tween right and wrong, in respect of
such act.

" Hence, in the present case, if the
jury find that the accused committed
the act charged in the indictment, and,

566

at the time of its commission, he knew
what he was doing, and that what he
was doing was contrary to the law of
the land, he is responsible.

"Unless, in consequence of insane
mental delusions, or other form of
mental disorder, he was laboring
under such a defect of reason as to be
incapable of understanding the obliga-
tion of the law of the land, and the
duty and necessity of obedience to it,
and of understanding that his act was
wrong because it was in violation of
the law of the land.

" I have examined the other instruc-
tions, and find that portions of them,_
as they are drawn, conflict with the
views I have already expressed, and
other portions require to be stated with
more fulness.

"And I shall now give an instruction
which is marked No. 2, which em-
bodies all I think is correct in the re-
maining instruction asked on the part
of the government, and in the first four
instructions asked on the part of the
defence, and that is ; —

No. 2.

" If the jury find that the defendant
committed the act charged, and, at the
time thereof, knew what he was doing,
and that what he was doing was con-
trary to the law of the land, it consti-
tutes no excuse, even if it were true
that when he committed the act he
really believed that he was producing
a great public benefit and that the
death of the president was required for
the good of the American people.

" Nor would such excuse be afforded
by the fact that in the commission of
the act he was controlled by a de-
praved moral sense, whether innate or
acquired, or by evil passions, or in-
difference to moral obligations.

"And even if the jury find that the
defendant, as a result of his own rea-
soning and reflection, arrived at the

POLITICO-MANIA.

[§ 681.

determination to kill the president,
and as a further result of his own rea-
soning and reflection, believed that his
said purpose jvas approved or suggested
or inspired by the Deity, such belief
would afford no excuse.

"But it would be diflerent and he
would not be responsible, criminally,
if the act was done under the influence
and as the product of an insane mental
delusion that the Deity had commanded
him to do the act, which had taken
possession of his mind, not as the re-
sult of his own reflections, but inde-
pendently of his will and reason, and
with such force as to deprive him of
the degree of reason necessary to dis-
tinguish between right and wrong, as
to the particular act.

" In such case, even if he knew that
the act was a violation of the law of
the land, he would not be responsible,
if his reason was so perverted by the
insanity that he was incapable of un-
derstanding the obligation of the law
of the land, and that the act was wrong
as a violation of that law, and wrong in
itself.

"In this connection I add words
'wrong in itself because I can con-
ceive a case in which one might believe
insanely that the law of the land pro-
vided no punishment for murder, and
yet might be perfectly aware of the
moral enormity of the crime. I would
be unwilling to pronounce him irre-
sponsible-.

" I have omitted from this instruction
one important feature of those asked
for on the part of the defence. It is
expressed in the last paragraph of the
first instrustion, in the words, ' or was
it committed under an influence or
power which the accused could not re-
sist, by reason of his unsoundness of
mind.'

"This, I presume, seeks to leave to
the jury the question of irresistible im-
pulse as the cause of the homicide.

" Now, it cannot be denied that some
of the most respectable courts in the
country recognize it as possible that a
man may be driven against his own
will to the commission of an act which
he knows to be wrong, by an insane,
irresistible impulse within him, over-
riding his will and conscience ; and
they maintain that as, under such cir-
cumstances, the will to do wrong, the
very essence of criminality, is wanting,
he ought not to be held criminally re-
sponsible.

" They accordingly hold that the test
of knowledge of right and wrong, which
I have stated to be the general rule,
ought to be qualified .by the further
condition that the party must have the
power to choose between doing, and not
doing the act.

"Other courts, on the contrary, re-
pudiate this view as unsound and
dangerous.

"The question is a dangerous one
alike for court and jury to handle ;
and I do not intend to express an
opinion upon it, farther than the facts
of the case require ; and they seem to
me to relieve me from the necessity and
responsibility of discussing it gene-
rally.

" If we strike out of this case all the
declarations and testimony of the de-
fendant himself, we have no light
whatever on this subject ; there are
circumstances, such as his actions and
conduct, which his counsel may argue,
of themselves, indicated some aberra-
tion, and are corroborative of, and ex-
plained by his testimony ; but, of them-
selves, they would have afi"orded no
indication of the particular motive or
special form of delusion that actuated
him. Of this we have no indication,
except in the declarations, oral or
written, of the defendant himself. But,
he has never claimed that he was irre-
sistibly impelled to do an act wliicli he
knew to be wrong. On the contrary,

567

§ 681.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

he has always claimed that it was
right. He justified it at the time and
afterwards, in his papers, as a political
necessity and an act of patriotism.
And whether he claimed inspiration
early or late, he has claimed that it
was inspired, and therefore right. He
has used the words pi-esswe and inspira-
tion interchangeably, as it were, to ex-
press the idea. This has no meaning,
unless it be that he was under an in-
sane delusion that the Deity had in-
spired or commanded the act. He has
certainly not separated the idea of
pressure or impulse from the convic-
tion of inspiration and right and duty.
He has not assejted any form of insan-
ity which did not involve a conviction
of right to do the act.

' 'And I feel sure that I am not trans-
cending the province of the court, when
I say that there is no evidence in the
case tending to prove any irresistible
impulse as a thing by itself, and sepa-
rate from this alleged delusion.

" Therefore the case does not seem to
me to present, or call for any ruling
on, the hypothesis of an irresistible im-
pulse to do what the accused knezv to be
wrong, and what was against his will.

" Whether there is such a thing as
irresistible insane impulse to commit
crime, and whether it has existed in
any particular ease, are questions of
fact and not of law.

"In this case, I think there is no tes-
timony showing that it can exist by
itself, as an independent form of in-
sanity, but rather the contrary. There
is, however, testimony tending to show
that such impulses result from and are
associated with insane delusions and
especially with such an insane delu-
sion as that the party has received a
command from the Deity to do an act.
But if such an insane delusion exists,
so as to destroy the perceptions of right
and wrong as to the act, which is sub-
stantially the defendant's claim, this

568

of itself is irresponsible insanity, and
there is no need to consider the sub-
ject of impulses resulting from the de-
lusion.

" On the other hand, if there was no
insanity, but a mere fanatical opinion
or belief, such as before described, the
only impulse that could have actuated
the defendant must have been a sane
one, such as, in the most favorable
view of it, a mistaken and fanatical
sense of duty, which the law requires
him to resist and control.

' ' In connection with the medical testi-
mony tending to show that these im-
pulses are always or generally asso-
ciated with some insane delusion, if
there are facts tending directly to show
the presence or absence of an irresisti-
ble impulse, they may perhaps furnish
some evidence of the existence or ab-
sence of insane delusion.

" But I think, in view of the undis-
puted features of the case, it would
only confuse and perhaps mislead the
jury to give them any instruction di-
rectly upon the subject of irresistible
impulse, and that this particular case
does not call for any qualification of
the general rule adopted, as I have
mentioned, as the test of responsi-
bility.

" I have already stated that the fifth
and sixth and eighth prayers are ob-
noxious to the suspicion that tliey em-
bodied the doctrine of the New Hamp-
shire court, and that is if the jury find
insanity in general terms, and find that
the act was the result of that insanity,
they ought to acquit. For tliat reason
I decline to grant them.

" The seventh instruction is —

" The punishments of the law are in-
tended for rational persons, and no one
but a rational person can commit the
crime of murder.

" That is somewhat objectionable be-
cause it is vague, and for another

reason, and that it is simplj' the an-

POLITICO-MANIA.

[§ 681.

nouncement of an abstract proposi-
tion, although, in ordinary parlance,
the statement is correct.

" We now come to the ninth.

" If the jury have a reasonable doubt
as to the sanity of the accused, at the
time of committing the act charged
against him as a crime, they should
give him the benefit of that doubt, and
should find him ' not guilty by reason
of insanity.'

" There is perhaps a formal objection
to this prayer, because it virtually
requires the jury to find the fact of in-
sanity upon a mere doubt of sanity.

" In reference to the question on whom
rests the burden of proof when insanity
is relied on as a defence, three different
and conflicting views have been held
by diiferent courts. According to one
view it is incumbent on the accused to
establish the fact of his insanity at the
time of the commission of the alleged
crime, by evidence so conclusive as to
exclude all reasonable doubt of it. But
this view derives so little support
from authority that it may be passed
over without comment, as inadmissible.

"Another view is that the defence of
insanity is an affirmative one, which
the party asserting it must establish
to the satisfaction of the jury by, at
least, a preponderance of evidence.
That is to say, the evidence in favor of
it need not be so conclusive as to leave
no room for reasonable doubt, but it
must liave more weight with the jury
than the evidence against it, so that
they would feel justified in finding the
fact as they would find any fact in a
civil suit, in which all questions of fact
are decided according to the weight of
the evidence.

"Still another view is that the sanity
of the accused is just as much a part
of the case of the prosecution as the
homicide itself, and just as much an
element in the crime of murder, the
only difi'erence being that, as the law

presumes every one to be sane, it is not
necessary for the government to pro-
duce affirmative proof of the sanity ;
but that if the jury have a reasonable
doubt of the sanity, they are just as
much bound to acquit as if they enter-
tain a reasonable doubt of the com-
mission of the homicide by the ac-
cused.

" The only question is as between the
second and third of these rules. I
have examined all the authorities on
the subject with great care, and over
and over again, and with a painful
anxiety to be right. The cases which
are referred to in support of the second
rule are undoubtedly more numerous
than the others. Some of those, how-
ever, turn upon statutory definitions of
the crime of murder. For example,
the statute of Massachusetts, in its de-
finition of murder, omits the element of
' sound memory and discretion' in the
perpetrator, so that the defence of in-
sanity there is essentially a defence by
way of confession and avoidance, and
therefore it is held by that court that
the defendant must establish it by pre-
ponderance of proof. A great many of
the cases referred to are mere dicta,
and some of them involve plain contra-
diction, and there is not one which I
have examined which has the least
show of argument. The opinions
which support the last view are de-
cidedly entitled, in my judgment, to
the most confidence. They are rea-
soned out from first principles, and the
reasoning has been unanswered, and,
in my judgment, is unanswerable. The
practice in this court has always been
to give an instruction somewhat in the
terms here claimed. Besides those
already referred to, there is the case
of Stone, the most recent one, in which
the instruction given was as follows : —

"Sixth. In a capital case the defence
of insanity is required to be made out

569

§ 681.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

hy strong, clear, and convincing proof,
and in this case the jury must judge of
the evidence offered to sustain this de-
fence, and of its effect upon the main
issue of guilty or not guilty ; and if,
upon consideration of all the evidence
in connection with the presumption
that what a man does is sanely done,
they entertain a reasonable doubt ivhether
the prisoner committed the homicide, as
charged in the indictment, or ivhether at
the time of its commission he icas in a sane
state of mind, they should acquit him,
otherwise they should convict.

" I shall, however, adopt the sugges-
tion which I find in some of the latest
authorities, and that is not to instruct
the jury to acquit if they feel a reason-
able doubt about any one fact involved
in the issue, but I shall instruct them
as to the nature of this crime, and all
the elements composing it, including a
responsible sane mind in the perpetra-
tor. I shall instruct them as to the
presumptions of innocence and sanity,
and finally, that, upon the considera-
tion of both these presumptions, if they
then feel a reasonable doubt as to the
guilt of the accused of the crime as so
explained, the prisoner is entitled to
an acquittal.

' ' The tenth and eleventh instructions
do not involve any serious questions.
The eleventh instruction asks me to
say that —

" If the jury believe from the evidence
that the prosecution have wilfully sup-
pressed evidence of the mental condi-
tion of the accused during two weeks
next following the shooting of Presi-
dent Garfield, which it was in their
power to have produced on the trial,
the jury have a right to take that fact
into consideration as raising a pre-
sumption that such evidence, if pro-
duced, would have been unfavorable
for the prosecution.

" Now, every instruction ought to be
based upon some evidence in the case,
and in giving this I should have to
assume that there is some evidence of

.570

this wilful suppression, which I am
unwilling to do.

" It is always open to either side to
argue that evidence which has not
been produced, but could have been,
produced, would have been injurious
to the party who had possession of it ;
that is fair matter of argument to the
jury in every case on both sides. In
like manner, it is fair argument to the
jury that the witnesses were interested
or influenced by hope of compensation,
and the ordinary motives that would
induce men to swear falsely or to pre-
varicate. But I do not think the court
ought to give formal instruction in the
shape of either the tenth or eleventh
of these prayers. I refuse them, how-
ever, after the explanation that I have
already given, that it is open to coun-
sel to comment upon the testimony of
the witnesses and upon the conduct of
the prosecution.

"The twelfth instruction is drawn
with reference to section 5241, United
States revised statutes. I do not under-
stand that statute to create any new
species of manslaughter. It uses the
common law definitions of both murder
and manslaughter, and, perhaps, in
view of the doubts that I have already
spoken of, applies them to cases where
the mortal wound was inflicted in one
jurisdiction and the death occurred in
another.

' ' The terms malice and maliciously used
in the statute would have no meaning
except by reference to the common law.
Now we know that the term 'malice,'
in the definition of murder, does not
require that proof shall be given of
any special hatred or ill will to the
deceased, but the deliberate intent to
kill, from whatever motive, constitutes
all the malice that the law requires to
be shown ; and that the terms ' with-
out malice,' in the definition of man-

POLITICO-MANIA.

[§ 681,

slaughter, mean simply without pre-
meditated intent, as where the killing
occurs in the heat of passion or on
sudden quarrel.

"All this I will explain to the jury-
when it becomes necessary to charge
them ; hut the instruction which is
asked, in its use of the terms ' with-
out malice in fact,' might convey the
idea to the jury that if the killing was
done from the motives declared by the
prisoner, and he had, as he says, no
personal ill will towards the president,
it was not murder. It is objectionable
on this ground, and every object that
could be properly sought under this
head will be attained by the explana-
tions which I have indicated to be made
to the jury.

' ' This disposes of all the instruc-
tions."

From the charge, as subsequently
delivered, the following extracts are
taken :—

" The cases I have referred to fur-
nish an introduction to the subject of
insane delusions, which plays an im-
portant part in this case and demands
careful consideration. We find it
treated, to a limited extent, in judicial
decisions, but learn more about it from
works on medical jurisprudence and
expert testimony. Sane people are
said sometimes to have delusions, pro-
ceeding from temporary disorder and
deception of the senses, and they enter-
tain extreme opinions which are
founded upon insufficient evidence or
result from ignorance, or they are
speculations on matters beyond the
scope of human knowledge ; but they
are always susceptible of being cor-
rected and removed by evidence and
argument.

" But the insane delusion, according
to all testimony, seems to be an un-
reasoning and incorrigible belief in the
existence of facts which are either im-
possible absolutely, or, at least, im-

possible under the circumstances of the
individual. A man, with no reason
for it, believes that another is attempt-
ing his life, or that he himself is the
owner of untold wealth, or that he has
invented something which will revo-
lutionize the world, or that he is pres-
ident of the United States, or that he
is God or Christ, or that he is dead, or
that he is immortal, or that he has a
glass arm, or that he is pursued by
enemies, or that he is inspired by God
to do something.

" In most cases, as I understand it,
the fact believed is something affecting
the senses. It may also concern the
relations of the party with others. But
generally the delusion centres around
himself, his cares, sufferings, rights,
and wrongs. It comes and goes inde-
pendently of the exercise of will and
reason, like the phantasms of dreams.
It is, in fact, the waking dream of the
insane, in which facts present them-
selves to the mind as real, just as ob-
jects do to the distempered vision in
delirium tremens.

" The important thing is that an in-
sane delusion is never the result of
reasoning and reflection. It is not
generated by them, and it cannot be
dispelled by them.

"A man may reason himself, and be
reasoned by others, into absurd opin-
ions, and may be persuaded into im-
practicable schemes and vicious resolu-
tions, but he cannot be reasoned or
persuaded into insanity or insane de-
lusions.

" Whenever convictions are founded
on evidence, on comparison of facts
and opinions and arguments, they are
not insane delusions.

" The insane delusion does not relate
to mere sentiments or theories or ab-
stract questions in law, politics, or re-
ligion. All these are the subjects of
opinions, which are beliefs founded on
reasoning and reflection. These opin-

571

§ 681.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOaiCALLY.

ions are often absurd in the extreme.
Men 'believe in animal magnetism,
spiritualism, and other like matters,
to a degree that seems unreason itself,
to most other people And there is no
absurdity in relation to religious, polit-
ical, and social questions that has not
its sincere supporters.

"These oxDiuious result from natu-
rally weak or ill-trained reasoning
powers, hasty conclusions from insuffi-
cient data, ignorance of men and things,
crediilous dispositions, fraudulent im-
posture, and often from perverted moral
sentiments. But still they are opinions,
founded upon some kind of evidence,
and liable to be changed by better ex-
ternal evidence or sounder reasoning.
But they are not insane delusions.

' ' Let me illustrate further : —

"A man talks to you so strongly
about his intercourse with departed
spirits that you suspect insanity. You
find, however, that he has witnessed
singular manifestations, that his senses
have been addressed by sights and
sounds, which he has investigated,
reflected on, and been unable to ac-
count for, except as supernatural.
You see at once that there is no in-
sanity here ; that his reason has drawn
a conclusion from evidence.

"The same man, on farther investi-
gation of the phenomena that staggered
him, discovers that it is all an impos-
ture, and surrenders his belief.

"Another man, whom you know to
be an affectionate father, insists that
the Almighty has appeared to him and
commanded him to sacrifice his child.
No reasoning has convinced him of his
duty to do it, but the command is as
real to him as my voice is now to you.
No reasoning or remonstrance can
shake his conviction or deter him from
his purpose. This is an insane delu-
sion, the coinage of a diseased brain,
as seems to be generally supposed,

572

which defies reason and ridicule, which
palsies the reason, blindfolds the con-
science, and throws into disorder all
the springs of human action.

"Before asking you to apply these
considerations to the facts of this case
let me premise one or two things.

"The question for you to determine
is. What was the condition of the
prisoner's mind at the time when this
tragedy was enacted ? If he was suffi-
ciently sane then to be responsible, it
matters not what may have been his
condition before or after. Still evi-
dence is properly admitted as to his
previous and subsequent conditions,
because it throws light, prospectively
and retrospectively, upon his condition
at the time. Inasmuch as these dis-
orders are of gradual growth and in-
definite continuance, if he is shown
insane shortly before or after the com-
mission of the crime, it is natural to
conjecture, at least, that he was so at
the time. But all the evidence must
centre around the time when the deed
was done.

"You have heard a good deal of evi-
dence respecting the peculiarities of
the prisoner through a long period of
time before this occurrence, and it is
claimed that he was, during all that
time, subject to delusions calculated
to disturb his reason and throw it
from its balance. I only desire to say
here that the only materiality of that
evidence is in the probability it may
afi"ord of the defendant's liability to
such disorder of the mind, and the cor-
roboration it may yield to other evi-
dence which may tend directly to show
such disorder at the time of the com-
mission of the crime.

" A few words may assist you in ap-
plying to the evidence what I have
thus stated.

" You are to determine whether, at
the time when the homicide was com-

POLITICO-MANIA.

[§ 681.

mitted, the defendant was laboring
under any insane delusion prompting
and impelling him to the deed.

"Very naturally you look, first, for
any explanation of the act, which may
have been made by the defendant him-
self at the time or immediately before
and after.

" You have had laid before you, es-
pecially, several papers which were in
his possession, and which purport to
assign the motives for his deed.

"In the address to the American
people, of June 16, which seems most
fully to set forth his views, he says,
' I conceived the idea of removing the
president four weeks ago. Not a soul
knew of my purpose. / conceived the
idea myself, and kept it to myself. I
read the newspapers carefully, for and
against the Administration, and grad-
ually the conviction daivned Qn me that the
president's removal was apolitical neces-
sity, because he proved a traitor to the
men that made him, and thereby im-
periled the life of the republic' Again,
' Ingratitude is the basest of crimes.
That the president, under the manipu-
lation of his secretary of state, has
been guilty of the basest ingratitude to
the Stalwarts, admits of no denial. The
expressed purpose of the president has
been to crush General Grant and Sena-
tor Conkling, and thereby open the way
for his renomination in 1884. In the
president's madness he has wrecked
the once grand old Republican party,
and for this he dies.^ . . Again,
' This is not murder. It is a political
necessity. It will make my friend
Arthur president, and save the repub-
lic,' etc. The other papers are of simi-
lar tenor, as I think you will find.

"There is evidence that, when ar-
rested, the prisoner refused to talk,
but said that the papers would explain
all.

" On the night of the assassination.

according to the witness James J.
Brooks, the prisoner said to him, that
he had thought over it and prayed over
it for weeks, and the more he thought
and prayed over it the more satisfied
he was that he had to do this thing.
He had made up his mind that he had done
it as a matter of duty, . . he made up
his mind that they (the president and
Mr. Blaine) were conspiring against
the liberties of the people, and that the
president must die.

" This is all that the evidence shows
as to the prisoner's utterances aboiit
the time of the shooting.

"In addition to this, you have the
very important testimony of the wit-
ness Joseph S. Reynolds, as to the
prisoner's statements, oral and written,
made about a fortnight after the shoot-
ing. If you credit this testimony, you
find him reiterating the statements
contained in the other papers, but per-
haps with more emphasis and clearness.
He is represented as saying that the situ-
ation at Albany suggested the removal of the
president, and as the factional fight be-
came more bitter, he became more de-
cided. He knew that Arthur would
become president, and that would help
Conkling, etc. If he had not seen that
the president was doing a great wrong to
the Stalwarts, he would not have assassi-
nated him.

' ' In the address to the American
people, then written, he says, ' / now
wish to state distinctly why I attempted to
remove the president. I had read the
newspapers ybr and against the Admin-
istration, very carefully, for two
months, before I conceived the idea of
removing him. Gradually, as the restdt
of reading the neiuspapers, the idea set-
tled on me, that if the president was
removed, it would unite the two fac-
tions of the Republican party and there-
by save the government from going into
the hands of the ex-rebels and their

573

§ 681.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

northern allies.' ^ It was my own con-
ception, and whether right or wrong, I take
the entire responsibility,''

" A second paper, dated July 19th,
addressed to the public, reiterates this
and concludes, ' Whether he lives or
dies, I have got the inspiration worked
out of me.'

" We have now before us everything
emanating from the prisoner about the
time of the shooting and within a little
over a fortnight afterwards. We have
nothing further from him until over
three months afterwards. Let us pause
here to consider the import of all this.

"You are to consider, first, whether
this evidence fairly represents the true
feelings and ideas which governed the
prisoner at the time of the shooting.
If it does, it represents a state of things
which I have not seen characterized in
any judicial utterance or authoritative
work as an insane delusion.

" You are to consider whether it is
so described in the evidence, or does
not, on the contrary, show a deliberate
process of reasoning and reflection,
upon argument and evidence for and
against, resulting in an o/wu"on that the
president had betrayed his party, and
that if he were out of the way it would
be a benefit to his party and save the
country from the predominance of their
political opponents. So far there was
nothing insane in tlie conclusion. It
was doubtless shared by a great many
others. But the difference was that
the prisoner, according to his revela-
tions, went a step farther, and reached
the conviction that to put the president
out of the way by assassination was a
political necessity.

' ' When men reason the law requires
■ them to reason correctly, as far as their
practical duties are concerned. When
they have the capacity to distinguish
between right and wrong, they are
bound to do it. Opinions, properly so
called — i. e., beliefs resulting from rea-

574

soning, reflection, or examination of
evidence — afi'ord no protection against
the penal consequences of crime. A
man may believe a course of action to
be right, and the law, which forbids it,
to be wrong. Nevertheless he must
obey the law, notwithstanding his con-
victions. And nothing can save him
from the consequences of its violation
except the fact that he is so crazed by
disease as to be unable to comprehend
the necessity of obedience to it,

" The Mormon prophets profess to
be inspired, and to believe in the duty
of plural marriages, although it was
forbidden by a law of the United States.
One of the sect violated the law, and
was indicted for it. The judge who
tried him instructed the jury —

"That if the defendant, under the
influence of a religious belief that it
was right — under an inspiration, if
you please, that it was right — deliber-
ately married the second time, having
a first wife living, the want of con-
sciousness of evil intent, the want of
understanding that he was committing
a crime, did not excuse him.

"And the supreme court of the
United States, to which the case went,
under the title of ' Reynolds v. United
States' (98 U. S. 145), in approving
this ruling, said : —

"Laws are made for the government
of actions, and while they cannot in-
terfere with mere religious belief and
opinions, they may with practices.
Suppose one believed that human sac-
rifices were a necessary part of religious
worship, would it be seriously con-
tended that the civil government under
which he lived could not interfere to
prevent a sacrifice ? Or if a wife re-
ligiously believed it was her duty to
burn herself upon the funeral pile of
her dead husband, would it be beyond
the power of the civil government to
prevent her carrying her belief into
practice ?

"So here, as a law of the organiza-
tion of society, under the exclusive
dominioii of the United States, it is
provided that plural marriages shall
not be allowed, can a man excuse his

POLITICO-MANIA.

[§ 681.

practice to the contrary because of his
religious belief? To permit this would
be to make the professed doctrines of
religious belief superior to the law of
the land, and, in effect, to permit every
citizen to become a law unto himself.
Government could exist only in name,
under such circumstances.

"And so, in like manner I say, a
man may reason himself into a convic-
tion of the expediency and patriotic
character of political assassination, but
to allow him to find shelter from punish-
ment behind that belief, as an insane
delusion, would be simply monstrous.

"Between one and two centuries
ago, there arose a school of moralists
who were accused of maintaining the
doctrine that whenever an end to be
attained is right, any means neces-
sary to attain it would be justifiable.
They were accused of practising such a
process of reasoning as would justify
every sin in the decalogue when occa-
sion required it. They incurred the
odium of nearly all Christendom in
consequence. But the mode of reason-
ing attributed 1o them would seem to
be impliedly, if not expressly, repro-
duced in the papers written by the de-
fendant and shown in evidence : —

" It would be a right and patriotic
thing to unite the Republican party
and save the republic. Whatever
means may be necessary for that ob-
ject would be justifiable. The death
of the president by violence is the only
and therefore the necessary means of
accomplishing it, and therefore it is
justifiable. Being justifiable as a po-
litical necessity, it is not murder.

" Such seems to be the substance of
the ideas which he puts forth to the
world as his justification in these pa-
pers. If this is the whole of his posi-
tion, it presents one of those vagaries of
opinion for which the law has no toler-
ation and which furnishes no excuse
whatever for crime.

"This, however, is not all that the
defendant now claims.

"There is, undoubtedly, a form of
insane delusion, consisting of a belief by
a person that he is inspired by the
Almighty to do something ; to kill
another, for example, and this delu-
sion may be so strong as to impel him
to the commission of a crime.

" The defendant, in this case, claims
that he labored under such a delusion
and impulse, or pressure, as he calls
it, at the time of the assassination.

"The prisoner's unsworn declara-
tions, since the assassination, on this
subject, in his own favor, are, of
course, not evidence, and are not to be
considered by you. A man's language,
when sincere, may be evidemce of the
condition of his mind when it is uttered,
but it is not evidence in his favor of
the facts declared by him, or as to his
previous acts or condition. He can
never manufacture evidence in this
way in his own exoneration.

"It is true that the law allows a
prisoner to testify in his own behalf,
and thereby makes his sworn testimony
on the witness-stand legal evidence,
to be received and considered by you,
but it leaves the weight of that evi-
dence to be determined by you also.

"I need hardly say to you that no
verdict could safely be rendered upon
the evidence of the accused party only,
under such circumstances. If it were
recognized, by such a verdict, that a
man on trial for his life could secure
an acquittal by simply testifying, him-
self, that he had committed the crime
charged under a delusion, an inspira-
tion, an irresistible impulse, this would
be to proclaim an universal amnesty
to criminals in the past, and an un-
bounded license for the future, and the
courts of justice might as well be
closed.

"It must be perfectly apparent to
you that the existence of such a delu-
sion can be best tested by the language

575

§ 681.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

and conduct of the party immediately
before and at the time of the act.

" And while the accused party can-
not make evidence for himself by his
subsequent declarations, on the other
hand, he may make evidence against
himself, and, when those declarations
amount to admissions against himself,
they are evidence to be considered by
a jury.

" Let me here say a word about the
characteristics of this form of delusion.

"It is easy to understand that the
conceit of being inspired to do an act,
may be either a sane belief or an in-
sane delusion. A great many Chris-
tians believe, not only that events
generally are providentially ordered,
but that they themselves receive spe-
cial providential guidance and illumi-
nation in reference to both their inward
thoughts and outward actions, and, in
an undefined sense, are inspired to
pursue a certain course of action ; but
this is a mere sane belief, whether well
or ill founded. On the other hand, if
you were satisfied that a man sincerely,
though insanely, believed, that, like
Saul of Tarsus, on his way to Damas-
cus, he had been smitten to the earth,
had seen a great light shining around
him, had heard a voice from Heaven,
warning and commanding him, and
that thenceforth, in reversal of his
whole previous moral bent and mental
convictions, he had acted upon this
supposed revelation, yon. would have
before you a case of an imaginary in-
spiration amounting to an insane delu-
sion.

"The question for you to consider
is, whether the case of the defendant
presents anything analogous to this.

"The theory of the government is,
that the defendant committed the
homicide in the full possession of his
faculties and from perfectly sane mo-
tives ; that he did the act from re-
venge, or perhaps from a morbid desire

576

for notoriety ; that he calculated de-
liberately upon being protected by
those who were politically benefited by
the death of the president and upon
some ulterior benefit to himself ; that
he made no pretence to inspiration at
the time of the assassination, nor until
he discovered that his expectations of
help from the so-called Stalwart wing
of the Republican party were delu-
sive, and that these men were de-
nouncing his deed, and that then for
the first time, when he saw the neces-
sity of making out some defence, he
broached this theory of inspiration
and irresistible pressure forcing him
to the commission of the act.

"If this be true, you would have
nothing to indicate the real motives
of the act except what I have already
considered. Whether it is true or not,
you must determine from all the evi-
dence.

" It is true that the term 'inspira-
tion' does not appear in the papers
first written by the defendant, nor in
those delivered to General Reynolds,
except at the close of the one dated
July 19, in which he says that the
inspiration is worked out of him ;
though, what that means is not clear.
It is true, also, that this was after,
according to General Reynolds, he had
been informed how he was being de-
nounced by the Stalwart Republicans.

" In one of the first papers I have
referred to, the president's removal
was called an act of God, as were his
nomination and election, but whether
this meant anything more than that
it was an act of God in the sense in
which all great events are said to be
ordered by Providence, is not clear.

"Dr. Noble Young testifies that a
few days after defendant's entrance
into the prison — a time not definitely
fixed — he told him he was inspired to
do the act, but qualified it by saying
that if the president should die, he

POLITICO-MANIA.

[§ 681.

would be confirmed in his belief that
it was an inspiration ; but if not, per-
haps not.

" The emphatic manner in which, in
both the papers delivered to General
Reynolds, the defendant declared that
the assassination was his own concep-
tion and execution, and whether right or
wrong he took the entire responsibility,
his detailed description of the manner
in which the idea occurred to him, and
how it was strengthened by his read-
ing, etc., and his omission to state
anything about a direct inspiration
from the Deity, at that time, are all
circumstances to be considered by you
on the question whether he then held
that idea.

" On the other hand, you have the
prisoner's testimony, in which he now
asserts that he conceived himself to be
under an inspiration at the time. He
also advanced this claim in his inter-
views with the expert witnesses shortly
before the trial.

" It becomes necessary then to
examine the case on the assumption
that the prisoner's testimony may be
true, and to ascertain from his de-
claration and testimony what kind
of inspiration it is which he thus as-
serts.

"According to the testimony of Dr.
Strong, he inquired of the defendant
if he claimed to have had any direct
revelation from heaven, and the an-
swer was that he did not believe in any
such nonsense.

" According to Dr. Macdonald. who
interviewed the prisoner on the 13th
of November, he did not then, in
terras, speak of his idea of removing
the president as an inspiration, but as
a conception of his own, and said that
after conceiving the idea, he tried to
put it aside ; that it was repulsive to
him at first ; that he waited a week or
two, thinking over it, and waiting for
VOL. I.— 37

the Almighty to interfere. He had
conceived the idea himself, but he
wished the Almighty to have the op-
portunity of interfering to prevent its
execution ; and at the end of two
weeks, no interference coming from
the Almighty, he formed the delibe-
rate purpose of executing the act, etc.

" According to the testimony of Dr.
Gray, the prisoner said that he had
received no instructions, heard no
voice of God, saw no vision in the
night, or at any time ; that the idea
came into his own mind first, and after
thinking over it and reading the papers
when he arrived at the conclusion to
do the act, he believed then it was a
right act, and was justified by the po-
litical situation.

"When asked how he could apply
this as an instruction from the Deity,
he said it was a pressure of the Deity ;
that this duty of doing it, as he claimed,
had pressed him to do it.

" Again, he said, he had not connected
the Deity with the inception and development
of the act; that was his own. He did
not get the inspiration until the time
came for it, and that the inspiration
came when he had reached the con-
clusion and determination to do the
act.

"Perhaps the most remarkable of
the prisoner's statements to Dr. Gray
was, that at the very time when he
was planning the assassination, he
was also devising a theory of insanity
which should be his defence, which
theory was to be, that he believed the
act of killing was an inspired act.

" Perhaps equally remarkable was
the prisoner's theory propounded in
this conversation, viz., that he was
not medically insane, but legally so, i. e.,
irresponsible, because the act was done
without malice.

" Finally, on this subject you have
the defendant's own testimony.

577

§ 681.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

" He does not profess to have had
any visions or direct revelation or dis-
torted conception of facts.

"But he says that while pondering
over the political situation the idea
suddenly occurred to him that if the
president were out of the way, the
dissentions of his party would be
healed ; that he read the papers with
an eye on the possibility of the presi-
dent's removal, and the idea kept
pressing on him ; that he was horri-
fied ; kept throwing it off ; did not
want to give it attention ; tried to
shake it ofif, but it kept growing upon
him, so that at the end of two weeks
his mind was thoroughly fixed as to
the necessity for the president's re-
moval and the divinity of the inspira-
tion. He never had the slightest doubt
of the divinity of the inspiration from
the 1st of June. He kept praying
about it, and that if it was not the
Lord's will that he should remove the
president, there would be some way
by which His providence would inter-
cept the act. He kept reading the
newspapers, and his inspiration was
being confirmed every day, and since the
1st day of June he has never had a
doubt about the divinity of the act.

" In the cross-examination he said:
If the political necessity had not ex-
isted, the president would not have
been removed — there would have been
no necessity for the inspiration. About
the 1st of June he made up his mind
as to the inspiration of the act and
the necessity for it ; from the 1 6tli of
June to the 2d of July he prayed that
if he was wrong, the Deity would stop
him by His providence. In May it was
an embryo inspiration — a mere impres-
sion that possibly it might have to be
done. He was doubting whether it
was the Deity tliat was inspiring him,
and was praying that the Deity would
not let him make a mistake about it,

578

and that at last it was the Deity, and
not he, who killed the president.

"Again, the confirmation that it
was the Deity, and not the devil, who
inspired the idea of removing the pre-
sident came to him in the fact that the
newspapers were all denouncing the
president. He saw that the political
situation required the removal of the
president, and that is the way he knew
that his intended act was inspired by
the Deity ; but for the political situa-
tion, he would have thought that it
came from the devil.

"This is the substance of all that
appears in the case on the subject of
inspiration.

" It is proper to call your attention
to some variations in the prisoner's
statements at different times.

"In two of the papers of July he
says it was his own conception, and he
took the entire responsibility.

" In the conversations reported by
Dr. Gray in November, he did not
connect the Deity with the inception
of the act. The conception was his
own, and the inspiration came after he
made up his mind ; but he does not
explain what he meant by the inspi-
ration, unless it was that it was a
pressure upon him, or, as he expresses
it, the duty of doing it was pressing
upon him.

" In his testimony he disclaims all re-
sponsibility while he still speaks of the
idea of removing the president as an
impression which arose in his own
mind first. He says that in his reflec-
tions about it, he debated with him-
self whether it came from the Deity or
the devil ; prayed that God would pre-
vent it if it was not His will ; and
finally made up his mind, from a con-
sideration of the political stuation,
that it was inspired by Him.

"On all this, the question for you
is, whether, on the one hand, the idea

POLITICO-MANIA.

[§ 681.

of killing the president first presented
itself to the defendant in the shape of
a command or inspiration of the Deity,
in the manner in which insane delu-
sions of that kind arise, of which you
have heai'd much in the testimony ;
or, on the other hand, it was a concep-
tion of his own, followed out to a reso-
lution to act, and, if he thought at all
ahout inspiration, it was simply a spec-
ulation or theory, or theoretical conclu-
sion of his own mind, drawn from the
expediency or necessity of the act, that
his previously conceived ideas were in-
spired.

" If the latter is a correct representa-
tion of his state of mind, it would show
nothing more than one of the same vaga-
ries of reasoning that I have already
characterized as furnishing no excuse
for crime.

" Unquestionably, a man may he in-
sanely convinced that he is inspired by
the Almighty to do an act, to a degree
that will destroy his responsibility for
the act.

" But, on the other hand, he cannot
escape responsibility by baptizing his
own spontaneous conceptions and re-
flections and deliberate resolves with
the name of inspiration.

" On the direct question whether the
prisoner knew that he was doing wrong
at the time of the killing, the only
direct testimony is his own, to the con-
trary effect.

"One or two circumstances maybe
suggested as throwing some light on
the question.

" The declaration that, right or ivrong,
he took the responsibility, made shortly
afterward, may afford some indication
whether the question of wrong had
suggested itself. And his testimony
that he was horrified when the idea of
assassination first occurred to him, and
he tried to put it away, is still more
pertinent.

"His statement, testified to by Dr.

Gray, that he was thinking of the de-
fence of inspiration while the assassina-
tion was being planned, tends to show
a knowledge'of the legal consequences
of the killing. His present statement
that no punishment would be too
quick or severe for him if he killed the
president otherwise than as agent of
the Deity, shows a present knowledge
of the wrongfulness of the act in itself,
but this declaration is of value on this
question of knowledge, only in case
you should believe that he had the
same appreciation of the act at the time
of its commission, and disbelieve his
story about the inspiration.

" I have said nearly all that I need
say on the subject of insane delusion.

"The answer of the English judges,
that I have referred to, has not been
deemed entirely satisfactory, and the
courts have settled down upon the
question of knowledge of right and
wrong as to the particular act, or rather
the capacity to know it, as the test of
responsibility. And the question of
insane delusion is only important, as
it throws light upon the question of
knowledge of, or capacity to know, the
right and wrong.

" If a man is under an insane delu-
sion that another is attempting his
life, and kills him in self-defence, he
does not know that he is committing
an unnecessary homicide. If a man
insanely believes that he has a com-
mand from the Almighty to kill, it is
difiicult to understand how such a man
can know that it is wrong for him to do
it. A man may have some other insane
delusion which would be quite con-
sistent with a knowledge that such an
act is wrong ; such as, that he had re-
ceived an injury ; and he might kill in
revenge for it, knowing that it would
be wrong.

"And I have dwelt upon the ques-
tion of insane delusion, simply because
evidence relating to that, is evidence

579

§ 681.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

touching the defendant's power, or
want of power, from mental disease, to
distinguish between right and wrong,
as to the act done by him, which is the
broad question for you to determine,
and because that is the kind of evi-
dence on this question which is relied
on by the defence.

" It has been argued with great force,
on the part of the defendant, that there
are a great many things in his conduct
which could never be expected of a
sane man, and which are only explain-
able on the theory of insanity. The
very extravagance of his expectations
in connection with this deed — that he
would be protected by the men he was
to benefit, would be applauded by the
whole country when his motives were
made known — has been dwelt upon as
the strongest evidence of imsouudness.

"Whether this and other strange
things in his career are really indi-
cative of partial insanity, or can be
accounted for by ignorance of men, ex-
aggerated egotism, or perverted moral
sense, might by a question of difficulty.
And difficulties of this kind you might
find very perplexing if you were com-
pelled to determine the question of
insanity generally, without any rule
for your guidance.

" But the only safe rule for you is to
direct your reflections to the one ques-
tion which is the test of criminal re-
sponsibility, and which has been so
often repeated to you, viz., whether,
whatever may have been the prisoner's
singularities and eccentricities, he pos-
sessed the mental capacity, at the time
the act was committed, to know that it
was wrong, or was deprived of that
capacity by mental disease.

' ' In all this matter, there is one im-
portant distinction that you must not
lose sight of, and you are to decide how
far it is applicable to this case. It is

580

the distinction between mental and
moral obliquity ; between a mental in-
capacity to understand the distinctions
between right and wrong, and a moral
indifference and insensibility to those
distinctions. The latter results from a
blunted conscience, a torpid moral
sense or depravity of heart ; and some-
times we are not inapt to mistake it for
evidence of something wrong in the
mental constitution. We have pro-
bably all known men of more than the
average of mental endowments, whose
whole lives have been marked by a
kind of moral obliquity and apparent
absence of the moral sense. We have
known others who have first yielded to
temptation with pangs of remorse, but
each transgression became easier, until
dishonesty became a confirmed habit,
and at length all sensitiveness of con-
science disappeared.

" When we see men of seeming intel-
ligence and of better antecedents re-
duced to this condition, we are prone to
wonder whether the balance wheels of
the intellect are not thrown out of gear.
But indifference to what is right is not
ignorance of it, and depravity is not
insanity, and we must be careful not
to mistake moral perversion for mental
disease.

"Whether it is true or not that in-
sanity is a disease of the physical
organ, the brain, it is clearly in one
sense a disease, when it attacks a man
in his maturity. It involves a depart-
ure from his normal and natural con-
dition. And this is the reason why an
inquiry into the man's previous con-
dition is so pertinent, because it tends
to show whether what is called an act
of insanity is the natural outgrowth of
his disposition or is utterly at war with
it, and, therefore, indicates an un-
natural change."

IDIOCY.

[§ 682.

CHAPTER VI.

IDIOCY, IMBECILITY, AND DEMENTIA.

I. Idiocy.

Mental and moral faculties undevel-
oped in idiocy, § 682.

Variations in this respect, § 683.

Connection of idiocy with consanguin-
eous marriages, § 684.

Classification by Howe, § 685.

Cranial measiirements by Esquirol, §
686.

Non-congenital idiocy may exist with-
out disease, § 687.

Occasional features, § 688.

Idiocy easily recognizable, § 689.

II. Imbecility.

Maybe accompanied by insanity, § 692.
May be without insanity, § 694.
Distinguished from idiocy, § 695.
Illustration of this distinction, § 696.

III. Dementia.

Dementia originates in mental depres-
sion, § 698.

Analogy between idiocy and dementia,
§ 699.

Falret's position that dementia is a
period, not a form of mental un-
soundness, § 700.

Description of dementia by Ray, § 701,

I. IDIOCY.

§ 682. Idiocy, when complete, is marked by an entire absence
of reason.^ The moral as well as the mental faculties -^q^^^^ ^nd
are undeveloped. There is generally great imperfect- ™o^^^
ness in speech, dependent sometimes on malformation, undevei-
sometimes on a deficiency in or want of the powers of
imitation, so that even when the hearing and speech are both
entirely mature, the patient remains unable to do more than in the
one case to show his knowledge of the existence of sound, and in
the other to give utterance to noises not above, if equal to, those
of the brute creation. Taste and smell are equally imperfect. In
many cases there is an inability to perceive odors, and in most
nothing but the coarsest discrimination in the selection of articles
of food. Wallowing in personal filth, devouring even excrement

» Supra, ^1; Siebold, § 200; Feuch- 742; Esquirol, 466; 19 Journ. Ment.
tersleben, London ed. p. 354 ; Morel, Sci. 169.
1. p. 52; Taylor, Med. Jur, (1873),

581

§ 684.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

with apparent avidity, indisposition to eat at all unless food be
placed directly before the eye, drinking urine -with as little appear-
ance of distaste as Avater, are incidents one or more of which are to
be found in almost every case of idiocy. And the same low grade
of sensibility and of flexibility is found in the purely physical sys-
tem. The nerves are almost torpid. Limbs sometimes have been
amputated without apparent pain, and Esquirol even tells us of labor
having been undergone without the patient being conscious of the
fact or its meaning. The arms are frequently of unequal length,
and misshapen ; and the limbs generally are crooked and feeble.
A careless and broken gait distinguishes them in most cases. Even
the eyes are defectively hung, and seem incapable of poising them-
selves at a right level. And in the lower class of cases there is
sometimes so great a defectiveness of vision as to prevent the patient
from perceiving the most obvious objects. And, even when the
powers of vision and of motion exist, the intellectual powers are
sometimes so attenuated as to make attempts to reach a desired
point entirely abortive, though there be entire muscular power for
such a purpose,

§ 683. While, however, the reasoning powers are almost entirely
. defective, there is sometimes a perceptible, though un-

in this re- equal, development of the moral sentiments. Self-esteem,
love of approbation, religious awe, sometimes assume a
supremacy over the system, which is the more marked because it is
checked by no countervailing qualities. Dr. Rush tells us of an
idiot who spent his life in little acts of benevolence to others, though,
in the dispensation of them, as well as all other points in his life,
he shoAved no reasoning powers whatever. Religious veneration is
sometimes developed to an exaggerated degree, and expended upon
the most unnatural objects. Vanity — such as that which distin-
guishes some branches of the brute creation — finds in idiots a preg-
nant place. And Esquirol gives us numerous instances in which
the talent for thieving, and that to a very remarkable extent, was
found associated with entire vacuity of mind in all other relations.
The same observation applies, though in a much less marked extent,
to the sexual propensities.

§ 684. " Idiocy," says Dr. Maudsley,^ " is indeed a manufac-

' Body and Mind, London, 1870, p. 44.

582

IDIOCY. [§ 685.

tured article ; and, although we are not always able to connection

tell how it is manufactured, still its important causes are ^^1^1^°^

known and are within control. Many cases are distinctly ous mar-
riages.
traceable to parental intemperance and excess. Out of

■300 idiots in Massachusetts, Dr. Howe found as many as 145 to be
the offspring of intemperate parents ; and there are numerous scat-
tered observations which prove that chronic alcoholism in the parent
may directly occasion idiocy in the child. I think ^ too^ there is no
reasonable question of the ill effects of marriages of consanguinity ;
that their tendency is to produce degeneracy of the race, and idiocy
is the extremest form of such degeneracy ^^

§ 685. The following classification is from Dr. Howe : —

" Idiots of the lowest class are mere organisms, masses ciassiflca-
of flesh and bone in human shape, in which the brain and
nervous system have no command over the system of voluntary
muscles ; and which, consequently, are without power of locomo-
tion, without speech, without any manifestations of intellectual or
affective faculties.

" Fools are a higher class of idiots, in whom the brain and ner-
vous system are so far developed as to give partial command of the
voluntary muscles ; who have, consequently, considerable power of
locomotion and animal action, partial development of the intellectual
and affective faculties, but only the faintest glimmer of reason, and
very imperfect speech.

" Simpletons are the highest class of idiots, in whom the har-
mony between the nervous and muscular systems is nearly perfect ;
who, consequently, have normal powers of locomotion and animal
action, considerable activity of the perceptive and affective faculties,
and reason enough for their simple individual guidance, but not
enough for their social relations. "^

" It does not take the case out of the definition of idiocy that
some particular faculty has been saved from the general wreck.

• See statistics as to the effect of con- of Massachusetts, by the Commissioners

sanguineous marriages, Journ. Stat, appointed to inquire into the condition

Soc, June, 1875. As to the effects of of idiots within the Commonwealth, by

restraint on the liberty of marriage, S. G. Howe, pp. 147. Boston, 1848.

Contemporary Rev., Aug. 1873. See Senate Doc. See a classification by

also 21 Journ. Ment. Sci. 623. Dr. Ireland, 18 Journ. Ment. Sci. 333.

2 Second Report of the Legislature

583

§ 686.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

This is often the case, particularly with music. Thus there is at
present in the Salp^fcri^re a girl idiotic to an extreme degree, who
does not speak, and cannot even dress herself. However, her
keeper has recently discovered in her a decided taste for music.
She often can repeat faithfully a whole passage of music played or
sung to her only once ; even if the passage is left incomplete, in
repeating it she will terminate it in the right key and tone. A
first-rate performer on the piano was brought to play with her, and
her transports amounted almost to frenzy. At certain passages of
rapid transition from flats to sharps, she uttered cries of trans-
port, and commenced biting her fingers to calm her emotions. She
is an immense eater, and greedily snatches at fruit ; but the
moment she hears the instrument, she stops until the music has
ceased."

Dr. Howe mentions an idiot who had an astonishing power of
reckoning. " Tell him your age, and he will in a very short time
give you the number of minutes."

§ 686. The following statement by Esquirol will throw much
light on this phase of mental unsoundness : " With each
case of idiocy which I have published in this chapter I
have also given the admeasurements of the head taken
during life. By bringing them together, we may compare the
means with the results obtained by my young confreres ; time will
not permit me to do it. For those who are fond of this kind of
investigation, I subjoin a table of the mean results of admeasure-
ment of the head taken from a woman in the enjoyment of good
health, and from plaster casts, taken after their death, in the case
of thirty-six insane women, seventeen imbeciles, and seventeen
idiots. In the case of three idiots, whose heads were very small,
the admeasurements were taken from the crania.

Cranial
measure-
ments.

"TABLE OF CRANIAL ADMEASUREMENTS.

Antero-

Trans-

Circum-

posterior

verse

Total.

ference.

curvature.

diameter.

Women in a state of health .

21.87in.

13.30 in.

6.98 in.

5.29 in.

47.44 in.

Insane ....

20.82-

11.50

6.96

5.67

44.95

Imbeciles

20.19

11.49

6.69

5.63

44.

Idiots ....

19.92

11.26

6.85

5.39

43.42

Idiots — Microcephalous .

15.07

7.51

4.88

4.17

31.63

584

IDIOCY. [§ 687.

" From this table we learn : 1st. That the circumference of the
head, according to admeasurements taken among Avomen enjoying
the use of their reason, from insane women, imbeciles, and idiots,
diminishes in an almost equal proportion from the women in the
enjoyment of usual health to the idiot, deprived even of instinct.
2d. That the fronto-occipital curvature diminishes in a remarkable
degree from the women in sound mind to the insane female, Avhilst
no variation is noticed in the insane person to the imbecile, and a
diiference of but six millimetres between the latter and idiocy. 3d.
That the fronto-occipital diameter is the same in the case of the
women enjoying the use of their reason and the insane women, and
that there is a diminution of but six millimetres between the insane
person and the idiot, while the difference is enormous on passing to
the lowest degree of idiocy. 4th. That the bitemporal diameter is
more considerable in the case of the insane women, and even the
imbecile and idiot, than in that of a woman possessing the ordinary
degree of intelligence. 5th. That, if we suppose that the sum of
those four admeasurements expresses the volume of the brain, it
follows, that, the volume of this organ diminishing in the same pro-
portion with the intellectual capacity, that of the cranium would be
the expression of this capacity."^

§ 687. " In that remarkable obliteration of the mental facul-
ties," says Abercrombie, "which we call idiocy, fatuity, ^^
or dementia, there is none of the distortion of insanity, genital

Ti • • 1 J o ^ n ^ • • i i • i ^ icliocy may

it IS a simple torpor oi the taculties m the higher de- exist with-
grees, amounting to total insensibility to every impres- °" isease.
sion ; and some remarkable facts are connected with the manner in
which it arises without bodily disease. A man mentioned by Dr.
Rush was so violently affected by some losses in trade that he was
deprived almost instantly of all his mental faculties. He did not
take notice of anything, not even expressing a desire for food, but
merely taking it when it was put into his mouth. A servant dressed
him in the morning, and conducted him to a seat in the parlor,
where he remained the whole day, with his body bent forward and
his eyes fixed on the floor. In this state he continued nearly five
years, and then recovered completely and rather suddenly. The
account which he afterwards gave of his condition during that

» Esquirol on Insanity, Lea & Blanchard, Philadelphia, 1845, p. 473.

585

§ 688.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

period was, that his mind was entirely lost, and that it was only
about two months before his final recovery that he began to have
sensations and thoughts of any kind. These at first served only to
convey fears and apprehensions, especially in the night-time. Of
perfect idiocy produced in the same manner by a moral cause, an
affecting example is given by Pinel. Two young men, brothers,
were carried off by the conscription, and in the first action in which
they were engaged, one of them was shot dead by the side of the
other. The survivor was instantly struck with perfect idiocy. He
was taken home, where another brother was so affected by the sight
of him that he was seized in the same manner ; and in this state
of perfect idiocy they were both received into the Bic^fcre. I have
formerly referred to various examples of this condition supervening
on bodily disease. In some of them the affection was permanent,
in others it was entirely recovered from."^

§ 688. " Of these half-witted persons," remarks Dr. Mayo, " the
Occasional former indulges a love of grapes, the latter a love of
features. bloodshed : the process of thought in each case is that
of a deficient understanding, which could neither prevent the one
from stealing grapes, nor the other from committing violence under
the influence of opportunity, but rather forwarded the crime by
suggesting excuses." " An idiot," says Dr. Hainsdroff, " in the
Hospital of Salzburg, appearing to be singularly insusceptible of
fear, an experiment of an appalling character, and of appalling
consequences, was made upon him, as a means of putting his sus-
ceptibility to the test. It was proposed to make the impression
upon him that he saw a dead man come to life. A person accord-
ingly laid himself out as a corpse, enveloped in a shroud ; and the
idiot was ordered to watch over the dead body. The idiot, per-
ceiving some motion in the corpse, desired it to lie still ; but, the
pretended corpse raising itself in spite of this admonition, the idiot
seized a hatchet, which unluckily was within his reach, and cut ofi
first one of the feet of the unfortunate counterfeit, and then, un-
moved by his cries, cut off his head. He then calmly resumed his
station by the real corpse ; a strong illustration of the dangerous
hypothesis of harmlessness, as connected with this state of mind."^

' Abercombie on tlie Intellectual * Mayo on Med. Test, in Lunacy, pp.
Powers, pp. 273, 274. See for a case of 93, 94.
acquired idiocy, 21 Journ. Ment. Sci. 82.

586

IDIOCY. [§ 689.

§ 689. As the different races of men, says M. Renaudin, have a
characteristic physiognomy, and as individuals reflect in j^^^^^
their features the most salient points of their moral idio- easily re-

cognizable.

syncrasy, so the idiot in this respect presents a peculiar
stamp which the least discerning can recognize. It is a type which
can be distinguished in all its varieties, even when the external
conformation of the head does not differ much from the normal pro-
portions. But that which strikes us most in this class is the want
of symmetry, not only in the encephalic organ, hut also in the other
parts of the body ; and if sometimes the physiognomy is deceitful
in this respect, the other parts of the organism soon reveal to us the
want of co-operation indispensable to the complete development of
man. It is rather by an observation of the whole constitution than
of its separate parts that the essential characters of this infirmity
are to be detected. Idiots generally deceive in their age, which
always offers at the different periods of their existence a ridiculous
admixture of decrepitude and puerility. The hypertrophy of cer-
tain glands, the flaccidity of the tissues, malformation of external
essential organs, absence of all proportion in the length of their
limbs, difficulty and uncertainty in their movements, which are
almost convulsive, the retraction of certain tendons, an arrest of
development in the figure and in muscular contractility — such are
the general appearances that characterize the idiot in his external
conformation. His mode of living is in keeping with this degrada-
tion of form, and furnishes us with the means of perceiving some of
the relations existing between the physical and the moral. His
language is scarcely rudimentary. He does not think, has nothing
to say, and nothing in him calls for the vocal motion. When, how-
ever, this mutism is not idiopathic, he can be made to articulate
certain words, and his movements can be placed under some moral
control ; but in undergoing this external influence he still rests
faithful to that automatism which is his principal characteristic. It
is always a material and instinctive impulse that controls. The
idiot shows, in the satisfying of his wants, a brutality in close con-
nection with the irregularity of all his actions, and the want of
balance of his functions, which all coincide with personal instinct.
He yields himself to onanism with a revolting cynicism ; he eats
with a voracity that defies everything, and which proves how obtuse
his sensibility is, although he in fact suffers more than any other

587

§ 689.] MENTAL UNSOUNDiSTESS CONSIDERED PSYCHOLOGICALLY.

the unhappy effects of climacteric changes. Finally, in spite of the
violence of certain appetites, the functions are so incompletely per-
formed, that "we must not be surprised to see these unfortunates
very short-lived. If, on the one hand, nothing has wasted life,
nothing, on the other hand, has vivified it, and one can easily con-
ceive that it is extinguished, since it is without essential nourish-
ment and without object.

The psychical element plays no part in such an organization.
External influence is unable to develop it, since the somatic element
is not in a condition to receive it ; and as to spontaneousness, one
can with but difficulty perceive the germ. So, when these degraded
beings, impelled by a brutal instinct, or obeying another's will
whose instrument they are, commit a culpable act, all the world
agree in not imputing to them any moral responsibility.^

Idiocy, says M. Falret, cannot, strictly speaking, figure amongst
the forms of insanity. In this degraded state man is fallen below
the brute ; he does not even possess the instinct of self-preserva-
tion. It is necessary for charity not only to bring him the food
required for his nourishment, but to place it in his mouth, and to
protect him against the mischievous influences which surround him,
and against all destructive causes. Instead of language, the ex-
clusive appendage of man, since it is the expression of thought in
all its development, the complete idiot only utters certain harsh,
savage inarticulate sounds. Instead of that firm, assured step
which executes the exact command of the will, the rough, dis-
orderly movements of idiots seem only phenomena of irritability.
Besides, they are often immovable, bent down towards the ground,
and only execute a kind of rocking movement, balancing forward
and backward, to the right and to the left. Without doubt this is
the extreme degree of idiocy, for there are idiots less degraded in
their organization and consequently in their manifestations ; but,
unfortunately, to this feeble development of the intelligence is too
often joined either an absolute want of character or low tastes, in-
citations to a brutal lasciviousness, to robbery, pyromania, and
ferocity, which they turn against themselves and against inanimate
objects.^

' See Etudes Psycliologiciues sur 2 gee Let^ons Cliniques, de M. Falret,
I'Alienation Mentale, par L. F. E. Re- p. 243, Paris, 1854.
naudin, p. 170, Paris, 1854.

588

IMBECILITY.

[§ 692.

§ 690. Cretinism finds no place in the United States, and cannot,
therefore, claim here extended consideration.^

II. IMBECILITY.

§ 691. Imbecility having almost as many degrees as it has vic-
tims, it becomes the task of psycho-forensic medicine to assign a
line of demarcation within which the judge is to declare the respon-
sibility of the agent to cease to exist. But this problem is only so
far capable of solution as we are enabled to detect and recognize
the existence of imbecility in general, and to estimate its relation
to a given action ; the personal discretion of the tribunal must
always have considerable scope in all cases near the boundary line.
In order to obtain as firm a common ground as possible, it becomes
advisable to subdivide and classify imbecility, particularly where it
depends upon particular diseased conditions capable of ascertain-
ment and distinction. In this respect we distinguish, in the first
place, imbecility with and imbecility without concomitant iyisanity.
The subject of ajjhasia has been already distinctively discussed.^
§ 692. Imbecility with concomitant insanity presents the follow-
ing subdivisions : —

' The student, however, who seeks
for particular information as to its
character, is referred to the following
treatises : Etudes des Maladies Men-
tales, de M. Morel, tome i. p. 64, Paris,
1854. Gedanken tiber Kropf und Cre-
tinismus als Beitrag zur Homatologie
und Homonymie. Von Joh. Mich.
Huber, Gerichtswundarzt zu Ried in
Tyrol. Mit einer Abbildung. (Me-
decin. >Tahr. des k. k. osterr. Staats,
Mai.) Ueber den Cretinismus in Can-
ton Waadt. in der Schweiz. von Dr. H.
Lebert, prakt. Arzt zu Paris. (Archiv
fiir physiologische Heilkunde, VII. B.
6 Heft.) Notice of a very remarkable
disease analogous to Cretinism. By
Hugh Norris ; Med. Times, Jan. 1848.
Les goiteux et les cretins de la Savoie ;
AnnalesdeTherapeutique, 1848. Mais,
Ueber den Cretinismus in grosson
Stadten und dessen Aenlichkeit mit
dem in den Alpen. Von Dr. Behrend.

(Gaz. des Hopitaux, 1848. Nos. 6 and
7.) Cretinismus als genetisch — con-
tagiose Endemie in Neudenau, etc.
Bad. Annalen d. Staats-Arzneikunde,
1846. Esquirol, Mental Maladies, etc.,
481-2. Sonsburg, tiber den Cretinis-
mus. Wurzb., 1825. Haiiflser, tiber
die Beziehung des Sexualsystems zur
Psyche ueberhaupt und zum Cretinis-
mus ins besondere. Wlirzb., 1826.
See also a very valuable report on this
point, by Samuel Kneeland, Jun.,
M.D., read before the Boston Soc. for
Med. Improvement, Jan. 13, 1851. Am.
Journ. of Science, 1851, and a review
of same in Journal of Physchological
Med., vol. iv. p. 366. See also "A
Physician's Holiday, or a Month in
Switzerland in the Summer of 1848,
by John Forbes, M.D., F.R.S.," Lon-
don, 1848, in which the management
of the Cretins is fully described.
2 Supra, §§ 324-327.

589

§ 693.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

When ac- 1. The Original imbecility which has lapsed into un-

witMn^^^ soundness of mind. The nature of the latter will deter-
samty. mine, in the first instance, in how far the patient is

amenable to the penal laws in a given case ; but the fact of imbe-
cility will always favor the psychological arguments in favor of
irresponsibility.

2. Imbecility supervenes upon the course of a mental disorder,
and manifests itself particularly in the form of a failure of memory.
The question of responsibility will depend, in this case, upon the
same principles as stated in the last preceding head.

3. Specious imbecility, as in the case of melancholia attonita,
and as such, will receive but little attention at the hands of the
forensic physician.

4. Imbecility with confusion of mind. This is found side by
side with a failure of memory, and a more or less conspicuous in-
coherence and inconsistency of the perceptions, and a certain agility
and activity of the super-physical life. It is either a primary or
secondary form, and in the former case it may be consequent upon
severe diseases of the brain, epilepsy, intemperance, sexual ex-
cesses, and senility ;^ in the latter case it may arise from the vari-
ous forms of mental unsoundness, and may be considered as always
excluding the idea of moral responsibility.

§ 693. 5. Imbecility remaining after the patient has recovered
from an attack of insanity. This, when sanity is restored, is not a
sufficient reason for suspending the responsibility of the agent, but
may often deserve the attentive consideration of the judge in the
moulding of the sentence. It should be remembered, however, that

' In senility its eflfects are touchingly invariable habit to call things by

illustrated in the following passage, names the reverse of what was right,

from the life of the late Wm. Jay : — and of what she herself intended.

"At length, however, this prop fails " She spoke of a drop of bread, and
him. After thirty years of uninter- a thin bit of water ; she called the
rupted domestic happiness, this excel- black white, and the white black ; the
lent and amiable woman was stricken cold heat, and the heat cold ; preaching
with an extraordinary malady, result- was hearing, and hearing was preach-
ing in such a prostration of mental and ing ; in the morning she wished you
physical powers, as rendered her, from good evening, and in the evening good
that time forward, no longer the sup- morning." A similar peculiarity mark-
port of her husband in his trials, but ed the last few months of Lord Den-
the object of his deep solicitude and man's life. See supra, § 324.
tender care. It had become her almost

590

IMBECILITY. [§ 695

insanity, once proved, is presumed to continue, so far as concerns
responsibility, until restoration to reason is positively shown.

§ 694. Imbecility witJiout insanity has several gradations, all
being separate denominations ; the highest degree is ^^^^
called idiocy. Next to this is imbecility proper ; did- without
wess, feebleness, stu])idity, are inferior grades of a
stunted growth of mind. The causes which, in the higher stages,
exclude understanding and self-control are the more potent, as no
education has been imparted here, or, if imparted, has produced no
effect. The lower stages do not justify the physician in casting a
doubt upon the existence of legal responsibility. They are for the
consideration of the judge alone, and are interesting in this point
of view, because simpletons and fools often have a touch of malice,
brutality, ill-will, and mischief in their dispositions, and may be led,
by teasing and ill-treatment, to vindictive hatred, revenge, and vio-
lent outbursts of anger.

§ 695. " In some circumstances," says M. Renaudin, " the
idiotic germ is less prominent, nothing tends to reveal it
in infancy, and the early years lead us to expect a punished
normal ulterior development. But it may happen that a [^^o^y.
severe disease, deeply affecting the organism, super-
venes, or the subject may have been submitted to an intellectual
labor above his powers, and at a given moment an arrest of de-
velopment, as much in the physical as in the moral system, shows
itself. This condition sometimes supervenes even without the
action of any apparent cause, and then we can only attribute it to
the influence of this idiotic principle. Instead of pursuing the
course marked out by the laws of nature, it is arrested at a point of
development, rarely transitory but most generally permanent, which
is known everywhere under the name of imbecility. The physical
organization in imbeciles offers less abnormities than that of idiots ;
the body is straighter, and, if the physiognomy is less repulsive
and shows a little more regularity in its features, it exhibits but
little animation. The feelings are seen in their rudimentary state
in this class of beings ; they are susceptible of a more advanced
education, and, when they belong to a family of easy circumstances,
they can be made to submit themselves to the habits of a regular
life. The impressions they receive are sufficiently durable, pro-
viding they do not overstep a sufficiently restricted limit. They

591

§ 697.] MEXTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

are susceptible of a certain amount of memory, which in some cases
reaches a very remarkable height. Sometimes the ideas they
acquire are very limited, and their intellectual spontaneousness is
on a footing with the small development of their physical spon-
taneousness. Although less stupid than the idiot, automatism is
the characteristic trait of the imbecile. He never gives the impulse,
he receives it ; and it is amongst the imbeciles that an asylum espe-
cially finds valuable aids in its internal service. If the effective
sentiments are but feeble, the instinct of the feeling of personality
shows itself perhaps in an absurd vanity, or in a savage egotism in
the satisfaction of wants whose stimulus is ordinarily very ener-
getic. Hence an excessive irritability that readily degenerates into
mania, or a malicious cunning, in order to obtain the thing coveted.
The imbecile has but few ideas ; and as he knows but little aban-
dons himself to his impulses when fear does not control him. But
little capable of distinguishing between good and evil, he may be
a dangerous instrument in criminal hands. The imbecile commits
a murder with coolness, shows often a great depravity of tastes, and
it is only an exception if you can perceive in him any rudimentary
traces of the moral sense. It is at this point that his intellectual
aptitude ceases, and we can easily understand how a like condition
necessarily excludes all responsibility."^

§ 696. The Emperor Napoleon hit upon a very happy illustra-
j., tion of the distinction between two of the above-men-

tion of this tioned phases. In one of his conversations with Las

distinction. . i , i • r j- t

vJasas, he said that there was such a thing as ^\foue
innocejite,'" and '-'•folie terribW^ — a fatuous state which is safe,
and one which is dangerous. A fatuous person, " unfou^' of the
first kind, the emperor describes as reasoning, with the proprietor
of a vineyard in which he was trespassing, thus : " Why, here are
we two : the sun sees us both ; therefore, I have a right to eat
grapes." The ^^fou terrible,'" he proceeds, " is he who cuts oft'
the head of a man whom he found sleeping under a hedge ; then
hides himself behind it, in order to witness the surprise — emharras
— of the body when waking."

§ 697. " Dr. Rush says," we quote from Dr. Ray, " that in the
course of his life he has been consulted in three cases of moral im-

' Renaudin sur rAlienation Mentale, p. 173. Paris, 1854.

592

DEMENTIA. [§ 699.

becilitj ; and nothing can better express the true character of their
physiology, than his remark respecting them. ' In all these cases,'
he observes, ' there is probably an original defective organization in
those parts of the body which are occupied by the moral faculties
of the mind' — an explanation which will receive but little counte-
nance in any age that derives its ideas of the mental phenomena
from the exclusive observation of mind in a state of acknowledged
health and vigor. To understand these cases properly, requires a
knowledge of our moral and intellectual constitution, to be obtained
only by a practical acquaintance Avith the innumerable phases of the
mind, as presented in its various degrees of strength and weakness,
of health and disease, amid all its transitions from brutish idiocy
to the most commanding intellect."^

III. DEMENTIA.

§ 698. Dementia is to be distinguished from general Dementia

. . , ^ , , p . . originates

mania m the lact that the former originates from depres- in mental
sion, the other from exaltation of the natural powers. epression.

§ 699. In the course of clinical lessons delivered at Bicetre, M.
Ferrus gives an account of the different intellectual de-

,.,... ,. , Analogy

bilities m a way that throws a strong light upon these between

difficult questions. cfemTntla^

Between idiocy and dementia, he says, there is a most
striking analogy. In both cases, human intelligence is abolished ;
it no longer possesses the means of perfectibility. But the analogy
ceases in examining the producing causes. With the idiot, depri-
vation of reason is congenital ; the demented, on the contrary
arrives progressively at the total loss of his faculties. Dementia is
the destruction of the intellectual faculties, supervening after the
period of puberty : it is a kind of debility Avhich appears either
in an insensible manner or with the rapidity of lightning — breakin<T,
more or less, all the connections Avhich unite the man with the rest
of the world.

The characters of dementia are sufficiently decided, so as not to
be confounded with those of other mental affections. In idiocy,
the faculties of the mind have never existed, or have been destroyed
before their complete development. In dementia, you may still

' Ray on Insanity, p. 90.

VOL. I.— 38 593

§ 699.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

possibly see some traces of an intelligent past ; but it betrays in
vain its past perfection : it is stamped forever with the seal of fee-
bleness and nullity, and destined to be extinguished by a kind of
exhaustion of nervous influence.

Paralytic stupidity consists in an accidental, sudden, complete
suspension of the intellectual, moral, and instinctive faculties, as
well as of the corresponding sensibilities. It has for its cause a
sudden and violent physical or moral shock ; it is distinguished from
dementia by the rapidity of its appearance, the intensity of its
symptoms, their frequent remission and exacerbation, and espe-
cially by the possibility of a comparative cure.^

Dementia, says Esquirol, is characterized by the enfeeblement of
the sensibility, intelligence, and will. Incoherence of ideas, want
of intellectual and moral spontaneousness, are the signs of this
affection. The man suffering from dementia has not the faculty of
properly receiving objects, of noticing their relations and compar-
ing them, of preserving a complete remembrance of them ; whence
results an impossibility of reasoning correctly. In dementia, he
adds, the impressions are too feeble ; it may be because the sensi-
bility of the organs, or of the sensations, is weakened ; or it may
be because the brain itself has not sufficient power to perceive and
retain the impression that is transmitted to it. From this it neces-
sarily results that the sensations are languid, obscure, and incom-
plete. Individuals in dementia are not susceptible of a sufficiently
strong attention — objects only strike them in an obscure and false
manner ; they can neither compare nor associate ideas, nor abstract
them ; the organ of thought has not sufficient energy — it is deprived
of the tonic force necessary to the integrity of its functions. Then
the most incongruous ideas succeed each other, following each other
without connection and without motive : the matter is incoherent :
the patient repeats words and entire phrases without attaching to
them distinct sense ; he speaks, as he reasons, without any con-
sciousness of what he is saying.^ The demented, in spite of the
general decrepitude of his organic functions, is not freed from the
laws of action and reaction. There are periods in his existence
when the old phenomena of possession appear to be renewed.

' Ferrus, le9ons cliniques faites h, 2 Esquirol de la demence, p. 221.
Bicetre.

594

DEMENTIA. [§ 700.

When he is agitated, he cries and tears his clothes, and may, per-
haps, perform some dangerous actions. The hallucinations are
often sufficiently intense to provoke veritable attacks of fury ; but
this rage lasts but a little while ; it is appeased like the anger of a
child.

The demented from this excited state falls back into his ordinary
automatonism. He has no more any wishes, hate, or tenderness ;
he holds the objects formerly so dear to him in the greatest indiffe-
rence ; he sees his relations and friends without pleasure, and
leaves them without regret. He is not disquieted by any privations
imposed on him ; and pleasures obtained for him gratify him but
little. What goes on around him does not affect him. The events
of life are as nothing to him, since he is unable to attach any re-
membrance, any hope to them : indifferent to everything, nothing
gratifies him. He laughs and plays whilst other men are afflicted,
and weeps when all the world are satisfied. If his position discon-
tents him, he does nothing to change it. His determinations are
vague and uncertain : he is a perfect automaton, that has not suffi-
cient energy to be ungovernable : his isolation is the more neces-
sary, as he yields himself to acts which are the result of the aboli-
tion of conscience, and as he becomes but too often the sport and
the victim of those who wish to take advantage of his condition.^

§ 700. Dementia, according to Falret, is a period, and not a
true form of mental unsoundness. Amona;st the de- ^ , ^,

"^ Falret's

mented, who are only the chronic insane arrived at an positiou

advanced stage of the disease, there are some who are mentiaisa

almost like maniacs, and some who remain motionless, a"formof*

like hypomaniacs. There are others in whom are seen mental un-

, , ... soundness.

some predominant ideas — resembling, in this respect,
monomaniacs ; but it is difficult to classify them. If they speak,
their unconnected words have no relation, and convey no sense ;
often even this is not due to incoherence alone, but to the absence
of ideas ; it is a flow of words without thoughts.

If they remain quiet and silent, their countenances express
neither concentration nor passion, but dulness and stupidity ; they
seem, at least in extreme cases, to be ciphers both in understanding
and character. The observer, in fact, sees in them only ruins : he

' See Morel sur les Maladies Mentales, tome i. p. 402. Paris, 1852.

595

§ 701.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

sees before him all the moral and intellectual elements in an almost
complete state of isolation from one another. This separation is a
kind of dissolution which betrays the radical blow that has been in-
flicted upon the psychical forces, and destroys all hope of ever
seeing these elements united and co-ordinate. If sometimes a
gleam of intelligence sparkles in this chaos, and in the midst of
these ruins — far from consoling, it adds to the gloom, so manifest
is it that the patient himself is neither its author nor its witness.
Everything, in fact, in dementia, betrays an inability to form ideas,
to experience sentiments, to possess a will. It is the tomb of rea-
son, with the exception of some flashes that mark it, and which are,
as it were, the reflections of the ancient brilliancy of the mind.^
§701. "Dementia," says Dr. Ray, "is distinguished from

general mania, the only other affection with which it is
Description ,. , ,

of demen- liable to be coniounded, by characters that cannot mis-
la y ay. -^^^^ ^.j^^ least practised observer. The latter arises from
an exaltation of vital power, from a morbid excess of activity, by
which the cerebral functions are not only changed from their
healthy condition, but are performed with unusual force and rapid-
ity. The maniac is irrational from an inability to discern the
ordinary characters and relations of things, amid the mass of ideas
that crowd upon his mind in mingled confusion ; while in dementia
the reasoning faculty is impaired by a loss of its ordinary strength,
whereby it not only mistakes the nature of things, but is unable,
from want of power, to rise to the contemplation of general truths.
The reasoning of the maniac does not so much fail in the force and
logic of its arguments, as in the incorrectness of its assumptions ;
but in dementia the attempt to reason is prevented by the paucity
of ideas, and that feebleness of the perceptive powers, in conse-
quence of which they do not faithfully represent the impressions
received from without.

" In mania, when the memory fails, it is because new ideas have
crowded into the mind, and are mingled up and confounded with the
past ; in dementia the same effect is produced by an obliteration of
past impressions as soon as they are made, from a want of sufficient
power to retain them. In the former the mental operations are

' See Etudes cliniques sur 1' Alienation Men tale, par M. Falret, p. 541. Paris,
1854.

596

DEMENTIA. [§ 701.

characterized by hurry and confusion ; in the latter by extreme
slowness and frequent apparent suspension of the thinking process.
In the former, the habits and affections undergo a great change,
becoming strange and inconsistent from the beginning, and the per-
sons and things that once pleased and interested being viewed with
indifference or aversion. In the latter, the moral habits and
natural feelings, so far as they are manifested at all, lose none of
their ordinary character. The temper may be more irritable, but
the moral disposition evinces none of that perversity which charac-
terizes mania.

" In dementia, the mind is susceptible of only feeble and transi-
tory impressions, and manifests little reflection even upon these.
They come and go without leaving any trace of their presence
behind them. The intention is incapable of more than a momen-
tary effort, one idea succeeding another with but little connection
or coherence."^

J Ray on Insanity, pp. 292, 293.

597

^ 702.] MENTAL UXSOUNDXESS CONSIDEEED PSYCHOLOGICALLY.

CHAPTER VII

DELIRIUM.

I. Gexeeal Delieittm.

Characteristics of, § 702.

SjstematizatioxL of frenzied concep-
tions a peculiar feature of delirium,
§703.

Puerperal mania, § 704.

Explanation of delirium by Griesiuger,
§ 705.

II. Partial Delirium.

1. Mania or amentia occulta.

Tlie term first used by Platner, § 706.

Autliorities countenancing tlie theory,
§ 707.

2Iania occulta not a defence unless in-
sanity be proved aliunde, § 708.

Mania occulta distinct from mania trans-
itoria, § 709.

2. 2Iania transitoria.
Mania transitoria is a sudden insane

fury, § 710.
Observations on the subject by De-

vergie, § 711.
Dangers attending recognition of this

mania, § 718.

I. GEXEEAL DELIRIUM.

§ 702. What distinguishes delirium from the delusions of the
Charac- senses is that in the latter the sensational faculties are
teristics of. really acted upon, subjectively, though in an eccentric
manner, while in the former the interior reproductive activity of
the brain predominates in the generation of phantoms.^ Con-
sciousness is disturbed at the same time, and there is incoherent
speaking and action, as if it were a waking dream. External ob-
jects are perceived indistinctly, or not at all, and on the whole there
is the less delirium, the more activity there is in the peripheric
nerves, for which reason hydrocephalic children generally relapse
into delirium when they cease vomiting. The external senses may,
however, be at the same time open to perceptions, and may convey
them ; but the patient is so controlled by his internal dreams as to
act as if they did not exist. Hence there is, accordingly, a pre-
dominance of dreams, which deprives the individual of the possi-
bility of the power of maintaining a corresponding relation with

' Haj-gen, vol. ii. p. 707 ; Schiirmayer, etc., § 555.

598

GENERAL DELIRIUM. [§ 703.

the external world. Delirium may, therefore, be defined as a state
of dreams brought on, not by sleep, but by disease. Like a dream,
a delirium may become active, the beginning of which is the speak-
ing delirium. Where a crime or misdemeanor proceeds from a
delirium, there is no freedom of agency, i. e., the action is to be
regarded as the product of insanity.

§ 703. The most remarkable phenomenon of mental unsound-
ness Cwe translate from MoreH is unquestionably deli-

. . . ^ "^ Systemiza-

rium, whether it shows itself in words or deeds. De- tionof

lirium, considered as an essential symptom of insanity, concfep-
possesses a type of continuity, connects itself with lesions ^^^^^^ ^J^^'

J- . culiar fea-

of a special nature, and presents altogether the elements ture of de-

„ . . . p ■. f, . , . lirium.

01 a certain systemization oi the irenzied conceptions.
This systemization alone gives to the delirium which produced it a
particular stamp. It shows what has been called the fixing of
ideas, and that logic peculiar to the insane, that leads them to the
justification of the falsest conceptions and the most deplorable acts.
If it were otherwise, who could have flattered himself that he had
escaped insanity ? for we have all suffered in a more or less degree
the phenomena of delirium. We are delirious during fever, under
the influence of spirituous liquors, as also of some narcotics. Febrile
delirium is a generic term comprising the universality of abnormal
phenomena which can in a more or less permanent manner, in a
given disease, hinder the association of our ideas, or which may
prevent that association in the way of producing illusions and hal-
lucinations of all kinds.

The word insanity is likewise a generic expression for pointing
out the universality of the abnormal phenomena which, under the
united influence of physical and psychical causes, can, in a more or
less permanent manner, pervert our manner of feeling and seeing,
or, in other words, bewilder our understanding.

In this point of view, febrile delirium and the delirium of mad-
ness are the same, inasmuch as deliriums are identical ; but it is
excessively important not to confound the symptoms with the dis-
eases that produced them.

An invalid suffering from an acute disease approaches the
period of convalescence. At the approach of night, or whenever
he shuts his eyes, fantastical apparitions besiege him. He himself
recognizes that these painful impressions are the results of his fever,

599

§ 703.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

or, if he does not recognize it at the first glance, he receives the
explanations of those surrounding him. He raves before sleeping,
and it is not strange if he still raves under the influence of the de-
pression as well as of exaltations of the organs of the senses. Upon
awaking, he makes known to his relations and friends the fatiguing
sensations that his dreams have produced, and seems to search with
eagerness for explanations to reassure him. As he returns to con-
sciousness, the motives of his judgment become more certain, the
tumult of his bewildered senses is appeased, the nights are quieter,
and, when convalescence follows an ascending course, there only
remains a vague and confused remembrance of the stormy scene
through which he has passed.

Things, unfortunately, do not so proceed when the delirium has a
tendency to the permanent or chronic form ; and it is this which
makes the essential difference between properly called febrile de-
lirium and maniacal delirium. There may be a period when these
two deliriums possess the same external characteristics on account
of the similitude of the perverted sensorial phenomena ; but, when
the phenomenon of delirium is produced by a maniacal state, it is
then a situation which often passes unnoticed in the beginning, but
which, as a diagnostic element, it is of the highest importance to
describe.

This situation, so painful for the friends, first betrays itself in a
perversion of the feelings, and in a complete change in the charac-
ter and habits of the patient. He becomes impatient and fretful ;
speaks passionately, and in an unaccustomed tone. He often loses
the feeling of modesty, whatever may be his age or education.
His friends and relations attribute these distressing phenomena to
the effect of the primitive disease which shows itself with all the
characteristics of an ordinary febrile delirium. But soon another
more trying phenomenon shows itself, greatly aggravating the
case. The care bestowed upon the sick person, the marks of
the liveliest affection which are shown to him, are repulsed, some-
times with irony and disdain, and sometimes with passion and fury.
In ordinary diseases the sick person attaches himself with happiness
to everything that tends to recall him to existence. He hears with
emotion of the different stages of his disease, and of the delirium
which was its consequence ; he speaks often of its causes, deplores
its effects, and makes innumerable excuses for any malignant or
600

GENERAL DELIRIUM. ' [§ 703.

obscene words which may have escaped him during the delirium.
The patient, on the contrary, in whom the insanity is confirmed,
will not admit that he was delirious. He sustains the errors of his
imagination, and takes them for realities. The hallucinations and
delusions of all sorts which he has felt, and which still beset him,
fortify him in his madness. Still more, in this he systematizes his
delirium,_^and whatever intellectual energy is left is employed by
him in establishing, upon the basis of a desperate logic, motives for
the new existence which he is just commencing. Several authors,
basing themselves on the fact that the delirium of insanity is often
found unaccompanied by fever (^delirium sinefebre)^ have thought
that the train of psychological phenomena that accompanies the deli-
rium of acute diseases is sufficient to mark out the difference between
these primitive conditions. This appreciation, though very true on
one side, may nevertheless lead us into error. We willingly admit
that the delirium of acute diseases is accompanied with redness of
the cheeks and turgidity of the face. The expression is troubled,
and there are marked changes in the circulation. The eyes are
brilliant, respiration often painful, and the excretions involuntary ;
the language takes an unaccustomed accentuation. The sick per-
son expresses himself sometimes with vivacity, sometimes with great
slowness ; his sentences and his words are badly articulated ; he
speaks sometimes to himself, and at other times deep drawn sighs
are the only manifestations of intellect. But these phenomena are
also to be met with in the delirium of insanity, and especially in the
first stages of this disease.^

Privation of stimulants, says Morel, and the employment of
opiates, generally suffice to restore reason to those persons who are
generally not considered as insane unless afflicted with a special
chronic subjection to delirium tremens; even when the fatal con-
sequences resulting from the abuse of spirits impress upon the
delirium, which is its consequence, a form of continuity which has
by some authors been pointed out under the name of drunken
madiiess. Errors made in this respect may be productive of grave
consequences for those who are the victims of them. The follow-
ing is an example : —

' See Etudes Cliniques des Maladies Mentales, etc. M, Morel, tome i. p. 124.
Paris, 1852.

601

§ 704.] MENTAL UNSOUNDNESS CONSIDERED PSTCHOLOGHCALLY.

In the month of May, 1850, there was brought to the asylum of
Moreville a sick person, whom a physician's certificate represented
as a dangerous madman. We observed at first in him a very great
disorder of ideas, and a peculiar difficulty of expressing himself.
The face was pale, and the lips agitated with convulsive movements,
and there was a general trembling of the limbs. The employment
of opiates and a bath soon removed these appearances, and the
next day we had a man in the perfect possession of his faculties
before us. The error in this case had arisen from the fact that the
physician's certificate had been given without a proper examination
of all the causes necessary to a correct judgment. If he had, in-
deed, gone back to the appreciation of the causes, he would have
found out that very grave dissentions existed between two brothers,
of whom one was this supposed madman, who, endowed with a vio-
lent but feeble character, after having yielded in the strife of dis-
cussion, ordinarily sought to console himself in alcoholic libations.
It was after having swallowed a too abundant ration that a family
quarrel brought its contingent of trouble to the natural excitement
that controlled him, and resulted in delirium tremens^ which, if it
had been better appreciated in its origin and effects, would not have
brought this person to an insane asylum, and compromised in a cer-
tain degree his social position.^

§ 704. Puerperal mania deserves a distinct notice, not merely
Puerperal from its distinctive physical origin, but from its distinc-
mania. ^-^g features, which sometimes are erotic ravings, some-

times even homicidal violence.^ A " homicidal propensity," as we
are told by Dr. Taylor, " towards their offspring, sometimes mani-
fests itself in women soon after parturition. It seldom appears
before the third day, often not for a fortnight, and in some instances
not until several weeks after delivery. The most frequent period
is at or about the commencement of lactation, and between that and
the cessation of the lochia." According to Esquirol, it is generally
attended by a suppression of the lochia and milk. The symptoms
do not differ from those of mania generally, but it may assume any
of the other forms of insanity ; and in one-half the cases it may be
traced to hereditary tendency. According to Dr. Burroughs, there

' Morel, sur les Maladies Mentales, ^ gee supra, § 155.
tome i. p. 146. Paris, 1852.
602

GENERAL DELIRIUM. [§ 705.

is delirium, with a childish disposition for harmless mischief. The
woman is gay and joyous, laughing, singing, loquacious, inclined to
talk obscenely, and careless of everything around. She imagines
that her food is poisoned. She may conceal the suspicion, and
merely avoid taking what is offered to her. She can recognize
persons and things, and can, though perhaps will not, answer direct
questions. Occasionally there is great depression of spirits, with
melancholy. These facts are of some importance in cases of al-
leged child-murder. This state may last a few hours, or for some
days or weeks, and we are told by Dr. Hartshorne, the accom-
plished American editor, sometimes for months and years ; but it
generally goes off within a few months, if not earlier. " The mur-
der of the child is generally either the result of a sudden fit of de-
lirium, or of an uncontrollable impulse, with a full knowledge of
the wickedness and illegality of the act, so that the legal test of
responsibility from a knowledge of right and wrong cannot be
applied to such cases. Mothers have been known, before the per-
petration of the murder, to request their attendants to remove the
child. Such cases are commonly distinguished from deliberate
infanticide by there being no attempt at concealment, nor any de-
nial of the crime on detection. Several trials involving a question
of puerperal mania have been decided generally in favor of the
plea within the last few years. Dr. Ashwell has remarked that
undue lactation may give rise to an attack of mania, under which
the murder of the offspring may also be perpetrated.^ Females
in the j^re^?ian^ state have been known to perpetrate the crime
apparently from some sudden perversion of their moral feelings.
I am not aware that a plea of exculpation on the ground of
insanity has been admitted in this country under these circum-
stances."^

& 705. " The fundamental affection in the maniacal Expiana-

y . . n tion of

states," writes Griesinger, " consists chiefly in a de- delirium,
rangement of the motory side of the soul-life, the effort,

1 Diseases of Women, 732. pp. 594, 595. See as to the legal re-

2 See case Ann. d'Hyg., 1831, i. 374. sponsibility in such cases, supra, §§
For an able analysis of the subject 146-162. See also Dr. Storer's excel-
of puerperal insanity, by Dr. Reid, lent treatise on Insanity in Women,
see Journ. Psychol. Med., 1834, pp. Boston, 1871.

128, 284. Taylor's Med. Jurisprudence,

603

§ 705.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

and of such a nature, that the latter having become free, unre-
strained, and considerably increased,- the individual consequently
feels impelled to give some outward manifestation of his powers.

" From this tendency to an exaggerated psychical movement
from within outwards, from this augmented energy and more ex-
tended range of the efforts, from this extravagance of the will,
which constitute the centre-point of maniacal derangement, spring,
as from a common source, those two forms which in their nature
and mode of manifestation are sometimes so essentially distinct.
On the one hand, this necessity for the manifestation of the in-
creased mental activity may manifest itself directly, being propa-
gated by a continuous impulse to the organs of motion, and there
exploding, as it were ; whence there ensues a state of great physi-
cal restlessness, the patient keeping his muscles in constant play
(speech, gestures, movements of the body generally), and perpetu-
ally speaking, shouting, weeping, dancing, leaping, storming, etc. ;
and thus is constituted the form generally called mania,

" Or, on the other hand, the direct result of this more free de-
velopment of volition may be the development of inordinate vanity,
increased self-sensation, and consequently a constant over-estimation
of self; and, as attempts at explanations of this disposition, delirious
conceptions arise, which now become dominant over the mind, and
take the increased activity of the will into their service.

" The patient has now no longer to do with mere general mani-
festation of energy ; but this excitation of the motory side of the
soul-life is transformed into extravagant volition in the form of
particular delirious conceptions, for the most part with much
greater outward calm. As soon as such a condition, accompanied
by delirious conceptions arising from inordinate self-conceit, has in
any degree become fixed, there is founded a state of mental de-
rangement infinitely more serious than that of simple mania. In
short, Avhile in the latter form the patient is freed from his exagge-
rated impulses by their outward manifestation, and again, as we
shall soon show, in the pure form of mania, the whole disease is
confined to a relatively external sphere of the mental life without
profoundly involving the individuality, it is the essential character-
istic of this second form of mania, which we designate monomania,
that delirious conceptions, false ideas, which arise from over-esti-
mation of self, and therefore relate only to the special self of the
604

PARTIAL DELIRIUM. [§ 707.

patient, appear, which immediately involve the ego itself, and,
therefore, the innermost part of the individuality becomes alienated
and falsified."^

II. PARTIAL DELIRIUM.

1. Mania or amentia occulta.

§ 706. This leads to the discussion of the so-called amentia
occulta, or concealed insanity ; a phase of disease which
has been the cause of much perplexity to the courts, as first used
well as of much animated controversy among psycholo- ^^ Pi^tner.
gists. Is there such a thing as latent insanity, Avhich is undistin
guishable by any of the usual psychological tests until the period
of the commission of the controverted act ? This was affirmed by
Plainer, by whom the term was first used. " Est igitur amentia
occulta nisus et conatus animi oppressi ad actionem violentam, banc
actionem secreto appetentis et molientis, tanquam suae oppressionus
levamen et liberationem." Two cases are cited by him as illustra-
tions. The first is that of a man who was good-natured, but super-
stitious, hypochondriac, and of weak intellectual powers. He
conceived the idea that he was the object of persecution, and of
various attempts to bewitch and to poison by deadly perfumes ;
and he killed the supposed oifender, declaring that he would
rather be executed than to live as the victim of such enmity. Here,
as Liman well remarks, there was no amentia occulta, but a case of
insanity, exhibiting itself antecedently with great plainness in the
common phase of. insane delusion as to persecution. The other
proof-case given by Platner is that of an alleged pyromaniac girl of
seven years, whose irresponsibility on other grounds was abundantly
shown.

§ 707. Undoubtedly some countenance is given to this theory
by Dr. Maudsley,^ by Dr. Castelnau,^ and by Dr.

T- . . . , . . . , • Authorities

Jarvis,* in their assumption that tliere is such a thing as couuten-
mania which is " instantaneous, temporary, fleeting, a theory.* ^
mental disorder, which breaks out suddenly, like the
sudden loss of sense in some physical diseases, and the subject

' Griesinger's Mental Pathol., Syden. xlv. p. 219, cited by Dr. Jarvis, in a

ed. (1871), § 130. learned appendix to Andrews' Trial,

2 Jour. Ment. Sc. ix. 335. p. 266.

3 Annales d'Hygiene Publique, etc., ^ Andrews' Trial, p. 266.

t)05

§ 708.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

is urged in a moment to automatic acts, which could not have
been foreseen." This phase, however, belongs distinctively to the
next head.^

§ 708. We certainly can conceive of insanity that is latent ex-
Mania oc- c*^P^ ^^ some parenthetical period when it bursts out into
cuita not a juania, and then retires again from observation ; but as

aefence un- ' '^ '

less in- to this, two remarks are to be made,
proved First. Human law, whether moral or positive, can

aiun e. ^^^ draw its conclusions from overt acts. We can con-
ceive of an emigrant, for instance, who in intention is a citizen ;
but until he declares his intention, and is naturalized, he is not
legally to be treated as a citizen. We can conceive of a person in-
tending to give money to a charitable object, but until he evidences
his intention by will or deed, the act is not the subject of legal
cognition. We can conceive of a person signing a paper under
duress ; but to make the defence good, duress must be proved. So
we can conceive of a person irresponsible through insanity, but, if
so, the insanity must be proved. It is true that it may be inferred
from an act that in itself is motiveless and passionless, especially
when there is evidence of superinducing causes of insanity. But,
when the act has motive, Avhether that motive be passion or interest,
and when the act is intelligent, then there can be no defence of
mania or dementia occulta. Insanity must be proved alitinde as a
prior state, involving derangement of mind.

Secondly. To admit such a disease as a defence would be to
make criminal justice powerless. Not only is the disease (if the
title be correct) incapable of diagnosis, but there is no case of crime
to which the defence, if good, may not be applied. The insensi-
bility of the act by itself cannot prove the disease, for there is no
crime, no matter how astute the perpetrator, but betrays, as will
hereafter be seen, some incoherence in its preparation ; and no
maxim is more trite than that crirue is in itself folly. Folly, inco-
herence of some kind, if not barbarous ferocity, are incident to all
crimes ; and if to these it is permitted to tack amentia occulta — an
insanity of which the only proof is the nature of the act — then there
is no prosecution of crime to which such insanity cannot be suc-
cessfully pleaded.

1 Infra, § 710.

606

MANIA TRANSITORIA. [§ 710.

Tliirdly. The assumption rests, in practice, on a,petit{o prineipii.
There is no case of occult insanity mentioned in the books in which
patent proof of prior insanity is not oifered to show occult disease.
The illustrations of this in the cases cited by Platner have already
been given. A scrutiny of other cases cited by the advocates of
this theory will produce a similar result. In one case the " oc-
cult" disease burst out in the state of sleep-drunkenness, a condi-
tion in which, as has been shown, the mind is substantively disor-
dered. In another, hereditary insanity was proved ; in another,
epilepsy ; in another, a chronic lesion of the brain ; in another,
hypochondria. The fallacy of the position may be seen by the
following statement : occult insanity is shown by inductive proof
of a prior insane state, but, when there is inductive proof of a prior
insane state, insanity ceases to be occult.

§ 709. Amentia occulta has sometimes, as has been noticed,
been blended with mania transitoria, or acute transitory j/ania oc-
raania. This special mania, however, does not neces- cwZtedis-

., ., 1-T11 • •• tinct from

sarily imply, and indeed by its definition excludes, a mania
prior state of occult insanity. Mania transitoria will
be, therefore, independently considered.

2. Mania transitoria.

. § 710. Ma7iia transitoria, or furor transitorius, assumes a sud-
den, parenthetical, transient, motiveless outburst of in-
sane fury in a person previously and subsequently sane, franltforia
It is, therefore, to be distinguished from occult insanity !^ ^ sudden

, . , "^ insane fury.

(amentia occulta), which has just been noticed, in which
there is prior insanity which is latent and concealed ; from " moral"
insanity, as it is called, which assumes a permanent derangement
of the moral as distinguished from the intellectual faculties ; and
from the so-called special manias, such as the homicidal mania,
kleptomania, and pyromania, which involve permanent constitutional
impulses to particular abnormal acts. Mania transitoria not only
does not involve, but from its term excludes all chronic insane
frames, or states, or impulses. It is from its very nature sudden,
causeless, exceptional, parenthetic, and vehemently antagonistic to
the patient's usual line of character and type of mind.

607

§ 711.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGIC ALLY.

§ 711. Upon the question in its general relations we have some
excellent observations read by M. Devergie before the
tion^on^the Imperial Academy in 1859.
subject by u ]v^q incentives to the deed, either in passions not suffi-

Devergie. _ ' _ '^ _

ciently repressed, or in an acquired fixed idea ; antece-
dents and manners irreproachable ; absence of hallucinations ; out.
break of insanity manifested by a criminal act, and instantaneous
return to reason as soon as the deed was accomplished — these are,
according to us, the characters of transitory insanity. Neverthe-
less, the word transitory/, perfectly just for the world in general,
in the sense that the madness is but transient, though the deed
done be of the most criminal description, does not appear to me
sufficiently exact for the physician. Individuals of the character
described ought not to be considered of sound mind when an idea
of crime has suddenly risen within them, when this idea has con-
stituted with them a dominant and irresistible thought, stronger
than tJie Me, stronger than the will.

" Antecedents of family, eccentric acts of social life, propensities,
tastes more or less perverted, tendencies to moodiness, ideas of
suicide, are often manifested many years before the explosion of
the irresistible criminal idea. So that to say that tJie jjassage from
reason to insanity can be hasty or instantaneous, in the opinion of
the physician is to commit an error. This state has prodromata, as
every malady has ; and, according to us, if these ijrodromata do
not exist, it would be impossible to see in the reported criminal act
an act of insanity.

" Moreover, M. Lelut^ has said, with much truth, in regard to
this species of insanity, that, at its commencement, and in the men-
tal tendencies which are the predisposing or constitutional cause of
it, insanity is still reason, as reason is already insanity (la folie est
encore de la raison, comme la raison est dej^ de la folie). This
constitutes, for the physician, one of the first elements towards the
solution of the question.

" A second datum of great interest, in a medical and moral point
of view, is the disproportion which exists between the enormity of
the oflence and the motive or interest which has led to its com-
mittal.

• Recherches des Analogies de la Folie et de la Raison, i\ la suite de son
ouvrage Le Ddmon de Socrate, p. 318.

608

MANIA TRANSITORIA. [§ 711.

" If we examine all the criminal processes which have been in-
stituted on the occasion of similar offences, and which have, more-
over, been diversely adjudicated upon, but which, for the physician,
have been acts of madness, it will be seen that the motive which led
to the committal of the deed was not, so far as its consequences
were concerned, in relation with the action itself. In other words,
the accused, in committing the crime, had in prospect the scaffold ;
and, even in the case of impunity from it, he derived frequently no
advantage, material or moral, from the act which he had committed.

" Now, every important act of a man of sound mind has one end.
That end is the attainment of an advantage proportionate to the
consequences of tlie act. When an individual stakes his life upon
it, he hopes to obtain in exchange material or moral advantages,
more or less considerable, and by which he expects to profit largely.

"If it be asked what are the conditions under which the reputed
criminal act is performed, we are at once struck with the want of
foresight which has preceded and accompanied its fulfilment. Nei-
ther the moment of the deed nor the mode by which it has been
effected has been the object of any premeditation. Moreover, the
deed has probably been committed at the most unfavorable moment,
although the accused had had a thousand opportunities of effecting
it in secret.

" Far from avoiding justice, the insane individual, in other re-
spects an upright man, comprehending quickly the enormity of the
crime that he has involuntarily committed, occasionally, nay, most
commonly, gives himself up to justice. In effect, the dominant
notion has hastily ceased to exist ; moral freedom has resumed its
empire, and the so-called criminal has ceased to be mad.

" If investigation is extended to the mental state of the paternal
or maternal ancestors of the accused, it is common to find that one
or more members of the family have committed suicide, or have had
a more or less prolonged attack of insanity.

" Lastly (and this is a criterion of great value), if we investi-
gate the offence from two different points of view, the hypothesis of
a criminal act, and the hypothesis of an act of folly, in order that
either view should be established, it is necessary that it should ex-
pose all the facts without effort, while the opposite view should
present a series of improbabilities which at once strike the judg-
VOL. I.— 39 609

§ 711.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

ment and are inconsistent with experience. The last method leads
the physician with the greatest certainty to a right apprehension of
the facts ; by it doubt is dissipated, conviction arrived at, and the
conscience relieved,"^

Mania transiforia was set up as a defence in Guiteau's case,
which has already been fully discussed, and it was there held that
a defence of this kind cannot be accepted without independent proof
of insanity.^

1 Extract from a paper read before
the Imperial Academy of Medicine,
Paris, and translated for Wiuslow's
Journal of Psychological Medicine.

2 From the Philadelphia Evening
Telegraph of Dec. 31, 1881, the follow-
ing is extracted : —

" TJie guests in the Astor House,
New York, according to the reports
published in the morning papers, yes-
terday were startled to see what was
apparently an enormous woman walk-
ing about the parlors and hallways.
She wore a handsome black silk dress,
cut decolette, and terminating in a long
train. Fine lace ruching around the
throat concealed the neck. Around
her head and neck in graceful folds
was wound a white zephyr ' cloud.'
This person did not disdain occasion-
ally to reveal a pair of shapely feet in-
cased in morocco slippers and pink
stockings. There was only one thing
aboi^t her which savored of mystery.
No one knew where she came from nor
when she arrived. During the even-
ing she sailed into the dining-room and
took a seat at one of the tables. De-
tective Kerwin of the Church Street
Station happened to be in the dining-
room at the time, and he regarded the
individual with curiosity. The head-
waiter, James T. Smith, told the de-
tective that she was an object of mys-
tery, and he kept watch on the person.
About 11.30 o'clock last night, the sup-
posed woman accidentally disarranged
her cloud, disclosing iron-gray whis-

610

kers. The detective then arrested the
curiosity. Giving a fair imitation of a
feminine shriek, the masquerader at-
tempted to run. The detective quickly
drew away the zephyr cloud, and the
prisoner subsided. He begged to be
allowed to change his clothes for his
own apparel, and the ofBcer accompa-
nied him to his room. Wliile changing
his clothes he gave his reasons for wear-
ing female apparel. He said that he
lately lost his wife, and the only way
he covild feel that she was near him
was by putting on his wife's clothing.
He arrived at the Astor House yester-
day moruing, and registered as A. A.,
of Philadelphia. He said he was a
merchant in this city. The clerk as-
signed him to room No. 135, and saw
no more of him. He is five feet nine
inches in height. The police had never
seen him before."

It was further stated that "Mr. A.
left Philadelphia yesterday morning for
the purpose of visiting his sister-in-law
who resides in N. C, Conn. Something
over a year ago Mr. A. lost his wife,
and since that time has suffered from
melancholia, although never to such a
degree as to incapacitate him from busi-
ness. This morning Mr. S., his partner,
received a letter from him concerning
business matters, whicli he says bore
no evidence of anything being wrong
with him. The announcement, how-
ever, in the morning papers sufficiently
aroused the fears of Mr. S. to induce
him to telegrapli to New York for more

MANIA TRANSITORIA. [§ 713.

§ 712. Mania transitoria (^fitror transitorius) was advanced as
a defence in the trial of Andrews, before the supreme Andrews'
court of Massachusetts, in December, 1868.* The de- ^'^^®-
ceased, Holmes, was found dead in a wood, a short distance from
Andrews's house, and from a street in the village of Kingston ; his
head mangled and his skull crushed. A considerable sum of money
was found in his pocket. Suspicions were attracted to Andrews,
Avho had been an intimate friend of the deceased, and who had in
his possession a will of the deceased leaving him a considerable sum
of money. Andrews denied all knowledge of the homicide ; but,
when it was shown that he had previously written to Holmes invit-
ing him to come over about the time in question, that he was the
last person in Holmes's company, that his accounts of his conduct
were contradictory and prevaricating, that his own clothes, worn by
him at the time of the homicide, had been cast by him, in a bloody
state, in a neighboring well — then he confessed his guilt. This
confession, in the shape that it took when he was examined on his
trial, was, that Holmes whom he had met at the wood by the appoint-
ment just mentioned, had attempted to commit on him an unnatural
crime, and that he had killed Holmes, partly in self-defence, and
partly in an ungovernable transport of fury.

§ 713. Dr. Edward Jarvis, a physician of Dorchester, Massa-
chusetts, called for the defence, opened his testimony by stating,
that " it is thirty-three years since I commenced attending to
mental diseases more particularly ;" and that " since 1835, I have

specific information concerning the man New York, received this afternoon,

wlio had been arrested. It is conjee- gives the conclusion to Mr. E.'s stranpe

tured that Mr. A. may have taken a adventure : ' The man who registered

portion of the former wardrobe belong- at the Astor House as A. A., a mer-

to his deceased wife with him for the chant of Philadelphia, and who was

purpose of transferring the same to his arrested yesterday for acting there in a

sister-in-law ; that he was led to look disorderly manner, by parading the

at the articles, and while brooding over corridors dressed in woman's attire,

his loss, received a sudden and uncon- was taken to the Tombs Police Court

troUable impulse to act as he did. Mr. to-day.'" The defence of insanity was

A. is a gentleman about fifty years sustained on independent proof of men-

of age, and enjoys a most enviable tal disturbance.

reputation among those who know him ' See supra, § 162, and also, for simi-

best, and who will deplore the sad mis- lar cases, § llHi, and Hoppin's case, 34

fortune that has befallen him. The fol- Am. Journ. Ins. 462.
lowing Associated Press despatch from

611

§ 713.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

had private patients under my charge, but am now mostly employed
as consulting physician." He strongly maintained the existence
oi furor tra7isitorius, or sudden mania, as an independent form of
insanity. His views, as subsequently expanded in an article in
the Medical Journal,^ as given in Mr. Davis's report of the trial,
are as follows: —

" This is not exclusively a new or an old doctrine, but it has
been taught in France and Germany for many years, by the mana-
gers of the insane, and by writers on these topics. It is recognized
by psychological authorities in Great Britain. It is admitted and
established by jurists and courts in Europe, in their management of
persons who have committed acts which would otherwise have been
considered as crimes, and for which they would have otherwise been
doomed to death on the scaffold.

" The case of Andrews, who was tried at Plymouth in December
last, for homicide, has brought this subject prominently before the
public here. As there is a difference of opinion in regard to this
doctrine, especially in its application to the case of Andrews, it
may be well to present the views of those who have written upon it,
in connection with an account of Andrews's agency in the homicide,
and of his trial.

" Dr. Henry Maudsley, manager of a lunatic asylum at Han-
well, near London, and one of the editors of the Journal of Men-
tal Science, says, ' Cases of insanity are occasionally observed in
which an attack of mania suddenly comes on, and soon passes away,
so that although there is no epileptic fit, one can scarce avoid
looking upon the attack as a sort of epilepsy. Now this mania
transitoria may take on the homicidal form.'^

" 1. He quotes from the Journal de Med. et Chir. Pratiq., 1833,
the case of a shoemaker, who was of industrious, sober habits. He
arose early one morning to go to work. In a short time his wife
was struck with his wild look and incoherent talk. He suddenly
Qout d coup) seized a knife and rushed upon his wife to kill her.
She had hardly time to escape with her child. Dr. Lowenthal
was called. He bled and gave other remedies to the maniac. In
the afternoon he was quiet. In the evening he regained the use

' See also 26 Am. Journ. Ins. 369. ■ Journ. Ment. Science, ix. 335. See

also id., xviii. 122, 212.

612

MANIA TRANSITORIA. [§ 713.

of his faculties, but he had no recollection afterwards of the events
of that morning.

" Castelnau calls this la folic ivistantanee, temporaire, jjassa-
g^re, ' mania instantaneous, transitory, temporary, fleeting, a
mental disorder, which breaks out suddenly, like the sudden loss of
sense in some physical disease, and the subject is urged in a mo-
ment to automatic acts, which could not have been foreseen.'^

" ' The first act of the mania may be homicide, and the disease
may pursue its course under the continued or intermittent form,
but, when the act of violence or homicide is the only maniacal
manifestation, it is instantaneous, temporary, fleeting, transitory
insanity, according to Henke, Marc, Cazauvielh, etc'

" 2. He quotes in illustration from Hiem of Berlin the case of
a counsellor of state who had ever enjoyed good health. He
suddenly awoke one night, breathing stertorously. His wife
endeavored to aid him. He assailed her with the most violent
fury, and tried to throw her out of the window. After a struggle
for half an hour, he was exhausted. An emetic put an end to the
paroxysm, and for fourteen years he had had no other attack. ^

" 3. A laboring man of Garde, returning from his work, met
his wife, and asked her if supper was ready. She immediately
seized a knife, and struck him a fatal blow. She had not been in-
sane, though excitable, and belonged to an insane family .^

" Castelnau, referring to this form of mental disorder, says, ' I
could show by facts, already so numerous, recorded in the works
of physicians devoted to the study of insanity and the observation
of the insane, the existence of a mental malady which society has
the greatest interest to know, in order to prevent consequences
dangerous to the community and to the person aff"ected.'^

"Again Castelnau says, ' We could cite a great number of facts,
but these are sufficient to show that the various kinds of insanity,
as of all the diseases of the organism, can establish themselves in
a manner either progressive or sudden, and have a progress slow or
rapid, continued, intermittent, or temporary.'''

• Dr. Ph. Boileau de Castelnau in 3 Ibid., 993.
Annales d' Hygiene Publique et de « Ibid., 216.
Medecine Legale, xiv. 217. 6 Ibid., 438.

2 Castelnau, Ann. Hyg. et Med.
Leg., xlv.

613

§ 713.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

" After a great variety of facts and arguments, Castelnau,
at the end of his essay, says in conclusion : ' There exist these in-
stantaneous changes in the mental faculties, that is, instantaneous
insanity.

" ' These changes have their first and only manifestation in a
single act of qualified crime. '^

" Castlenau's essay was published in 1851 ; seven years later,
December 14, 1858, M. le Dr. A. Devergie read, before the Im-
perial Academy of France, an essay on the questions, ' Where does
reason end f Where does insanity begin f This was printed in
the Annales d'Hygi^ne Publique et de Mddecine Legale, in 1859,
vol. xi., second series. He confirms the opinions of Castelnau, in
regard to instantaneous and transient insanity, except that he
qualifies them with the certainty or probability that all or nearly
all these cases had been preceded by hereditary taint or some men-
tal disease or irregularity in greater or less degree.

" ' Besides those cases of insanity produced under all these
causes, is another mode of alienation, to which they gave the name
of Transitory Insanity {folie transitoire)^ that is to say, without
preceding apparent symptoms, without cause, near or remote, appre-
ciable to the world, bursting out as suddenly (Irusquemenf) as a
clap of thunder, and ceasing completely with a criminal act.'^

" ' No motive for the act, either in ungoverned passions, or in
acquired ideas ; previous character and manner without reproach ;
absence of hallucinations ; the explosion of the mania manifesting
itself in one act of violence or crime, and the immediate return of
reason after this act is accomplished ; these, in my opinion, are the
characters of transitory insanity .^^

"" Devergie qualifies this description as above indicated: 'Never-
theless the word transitory, perfectly just for the world, in the
sense that the mania was fleeting (passay^re'), although the act was
of the most criminal nature, does not seem sufficiently exact for the
physician. The persons of this description should not be considered
as sound in mind when the idea of crime suddenly rises within them,
and becomes the ruling thought, irresistible, stronger than them-

• Ann. Hyg. et Med. Leg. xi. 2d ser. 3 Ibid., 408.
998.

2 Ibid., 407.

614

MANIA TRANSITORIA. [§ 713.

selves, stronger than their own will. The antecedents of their
families, hereditary taint, divers acts of social life, propensities and
tastes perverted, tendencies to silence and abstraction, thoughts of
suicide, for years existing in many, have been the forerunners of
the sudden outburst of irresistible criminal mania. '^

" 4. Devergie quotes the case of a young man of nineteen, son
of a merchant of Bordeaux. He had been most regular and exem-
plary in all his previous life, an affectionate brother, dutiful son,
faithful to his employer, a banker, and the heir of an immense for-
tune, but he was the child of insane parentage, and had a mother-
in-law for whom he had a deep aversion. There was a dinner party
at his father's house, which passed without unusual incident. 'At
the time of the dessert, Julius, the youth, left the table, and went
to the hall to warm himself; the fire was not burning; he then
went to his chamber, took his gun and straw hat to walk in the
fields as he was accustomed to do. Then the thought of suicide,
which had troubled him for a month, suddenly presented itself, and
as suddenly changed to the thought of killing his mother-in-law.
He threw down the gun, went to his brother's chamber, took two
pistols, which had been loaded three months, leaving his own pistols
that he had loaded the evening before. He went to the dining-
room, where his mother-in-law was sitting at the table Avith his
father, and discharged one of the pistols into her temple.'^ He was
rational immediately afterward, and, so far as is known, remained
sane.

" Upon this case Devergie remarks : ' If the act which young
Julius committed was one of mania, it was in him a passage sudden
and rapid from reason to insanity, and a return as sudden from in-
sanity to reason. This then is a very exact example of that species
of mania which is called transitory.'' This case was submitted to
MM. Gintrac and Delafosse of Bordeaux, Calmiel, Tardieu, and
Devergie, who gave their opinion, ' that Julius, at the moment of
this action, had not the possession of his freedom of will,' and the
court and jury acquitted him fully of the charge of crime.-*

" These doctrines are sustained by French lawyers, and put in
practice by French courts and juries, in the trials of cases of this

1 Ann. Hyg. et Med. Leg. xi. 2d ser. « Ibid., 398.
408. » Ibid., 499.

615

§ 713] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

nature. ' Billard, a jurist (jurisconsulte) of high character, whom
no one suspects of being indulgent, recognizes the realitv of instan-
taneous insanity.' He says : ' There are some madmen whom
nature condemns to eternal loss of reason, and others who only lose
it for a moment {instantanenient) by the effect of some great grief,
surprise, or other cause of this kind. There is no other difference
between these two forms of mania than that of duration, and one
whose head is turned for some hours or for some days is as com-
pletely insane, during this ephemeral action, as the one who is mad
for many years.' Les alienes devant les cours cV Assizes.^

" To this Devergie adds : ' So in the short period of thirty years
or more, we have passed from incredulity, I may say, from igno-
rance the most profound of the nice distinctions of insanity, with such
immense advance, that now our judges and juries accept as founded
on evidence not only delusions on a single point, monomania, but
even those transitory aberrations of reason which, in the judgment
of the world, transform a man of previously honorable character
into a criminal, and one so much the more wicked because he has
covered his perversion of heart so completely as to conceal, through
a long period of years, the baseness of his act under the garb of
the most irreproachable life.'^

" Esquirol says : ' These deplorable homicidal impulses are spon-
taneous and fleeting, and without habitual delusion.'^ Referring
to murder by one in this condition, he says : ' This presupposes
the suppression of all intelligence, all sensibility, and all volition.
The following fact will best explain my meaning.

" 5. 'A man thirty-two years old, tall, thin in flesh, of a nervous
temperament, amiable disposition, was educated with great care,
and accomplished in the fine arts. He had had a cerebral affec-
tion from which he had recovered many months previous to his
arrival in Paris, two months ago. There he conducted himself with
great propriety, until one day, when he entered the palace of justice,
and there threw himself upon a lawyer and seized him by the throat.
He was arrested and taken to prison, and put under my care on the

' Castelnau in Ann. Hvg. et Med. ^ Malad. Mentales, sous les Rapports
L6g. xlv. 217. Medico-Legal, ii. 104,

' Ann. Hyg. et Med. Leg. xi. 2d ser.
402.

616

MANIA TRANSITORIA. [§ 714.

same day. At my first visit, on the next day, he was calm, with-
out anger or resentment, and had slept all night, and had sketched
a landscape. He spoke of his going to the court-room the evening
previous, coolly, but had no recollection of his conduct there or
of his motives. Nor did he manifest any regret. He answered my
questions courteously, and with an air of sincerity. " I went to
the palace of justice, as I would to any other place without any
special purpose, merely as a sight-seer. I not only had no ill will
against the advocate, but did not even know him. I cannot under-
stand how I could have committed such an outrage." When I said,
that it could be explained only by the sudden attack of some dis-
ease, he said, " You may explain it as you please ; I am not con-
scious of having been ill, and I cannot tell how this could have
happened." During the three months that he remained under my
observation, he manifested not for an instant any disorder of the
mind.'^

" Castelnau says : ' there is no want of authorities to establish
the doctrine of instantaneous insanity.' The observations made by
writers on medical jurisprudence (rnedicins legists) of the present
day leave no doubt of the existence of this mania of a few instants,
during which men who have never manifested insanity all at once
(tout ci coup) a,re completely deprived of their reason and give
themselves up to the most deplorable excesses. The learned chief
editor of the Journal du Medecine et de Chirurgie Pratique offers
five examples of this kind of mania. In four of these, accidental
circumstances only prevented persons, whose previous life had been
irreproachable, from committing crimes. The fifth case was that
of a woman who killed her mother and three others, and wounded
a fourth person. "^

§ 714. With this may be classed the argument of Dr. Hammond,
in his review of McFarland's case : — ^

" I have stated incidentally, that there is a form of insanity
which, in its culminating act, is extremely temporary in its char-
acter, and which, in all its manifestations, from beginning to end,
is of short duration : 1st. This species of mental aberration is well
known to all physicians and medical jurists who have studied the

• Malad. Mentales sous les Rapports 2 Ann. Hyg. et Med. Leg. xlv. 221.
Medical et Medico Legal, ii. 102. ' Journ. Psy. Med. 459.

617

§ 715.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

subject of insanity, {a) By authors it has been variously desig-
nated as transitory mania, ephemeral mania, temporary insanity,
and morbid impulse, (h) It may be exhibited in the perceptional,
intellectual, emotional, or volitional form, or as general mania.

" 2d. The exciting causes of temporary insanity are numerous,
(a) It may be induced by bad hygienic influences, such as impro-
per food, exposure to intense heat, cold, or dampness, or to a noxious
atmosphere ; by excessive physical exercise, by disease of the heart,
by blows upon the head or other parts of the body, by certain
general and local diseases, by the abuse of alcoholic liquors, by the
ingestion of certain drugs, such as opium, belladonna, and hashish,
by excessive intellectual occupation, by loss of sleep, and, above
all, by great emotional disturbances. (5) Among these latter are
religious excitement, grief, disappointed aifection, and especially
anxiety, by which the mind is kept continually on the stretch, tor-
tured by apprehensions, doubts, and uncertainties, and by which it
is worn away more surely than by the most terrible realities.

" 3d. The predisposing causes are to be found in the individual,
as an inherent part of his organization, (a) They consist in an
hereditary tendency to insanity, or to some other profound affec-
tion of the nervous system ; (5) or the possession of an excitable,
nervous temperament, which is incapable of resisting those morbid
influences which persons of phlegmatic disposition would easily
withstand, (c) Thus, all men are not afiected alike by disturbing
causes, because all men are not cast in the same physical or mental
mould ; a circumstance which will produce insanity in one person
will scarcely ruflfle the equanimity of another.

" 4th. The immediate cause of temporary insanity is the disease
itself, of which the mental aberration is simply the manifestation.
It may consist of — (a) A condition of cerebral exhaustion in which,
owing to excessive wear and tear of the brain, new substance is not
formed with sufficient rapidity to take the place of that used ; (5)
The circulation through the brain of blood which is not normal in
quality ; (c) Cerebral congestion."

§ 715. A qualified assent to the same hypothesis may be found
in a late (1871) publication of Dr. Kraff't-Ebing. {Die LeJire von
der mania transitoria.) This experienced and acute observer re-
cords 18 cases which he declares exhibit the symptoms of this dis-
ease. Of these, 15 were men and 3 women. The attack in 14
618

MANIA TRANSITORIA. [§ 716.

out of 18 of these cases was sudden, without the premonitory signs
of ordinary mania. In most of the reported cases, terror was
strongly marked. The patient suddenly was overcome with anguish;
with fear of approaching death ; with belief that he was assailed
by a vindictive and desperate enemy. In some instances the
" mania" took the form of violent rage. But it is an essential
requisite of mania transitoria, according to Dr. Krafft-Ebing, that
the patient's power of memory should be lost during the preva-
lency of the attack. He is unconscious afterwards of anything
that he did while the attack continued. This, it is maintained, is
an infallible test, and one which is readily applied. Dr. Krafft-
Ebing on this point, however, advances positions which open his
whole exposition to unfavorable criticism. He declares that a
simulant, who feigns this disease, will not know where his oblivion
is to commence, and where it is to end. But a simulant who is
intelligent enough to select this peculiar type of disease as that
which he is to feign would be intelligent enough to follow Dr.
Krafft-Ebing's prescription how to do so successfully. And the
prescription is simple enough : " Forget everything that you did
when you lapsed into this transitory rage — remember everything
else." Dr. Krafft-Ebing declares that the simulant would betray
himself by his consciousness. But an intelligent simulant would
do no such thing ; whereas, an innocent person, hurried uncon-
sciously into crime by such a mania, would, on being subsequently
informed of it, be overcome, when the subject was afterwards re-
ferred to, with emotions which it would be difficult to distinguish
from remorse.^

§ 716. On the other hand, Dr. Choate, superintendent of the
Taunton Lunatic Asylum, who has held that " position for the last
fifteen years," and has had " about three thousand six hundred
patients" under his charge, in addition to extensive collateral ob-
servation, testified in Andrews's case that " there are no cases of
instantaneous insanity, instantaneously maniacal," declared that he
had never known such a case, and testified that " the fact that a
man was under constant observation and appeared sane down to an
hour at least before the homicide, and then half an hour afterwards,

' Observations somewhat similar to in the Edinburgh Journal for Novem-
those of Dr. Krafft-Ebing are recorded ber, 1865.

619

§ 719.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

is to mj mind conclusive that the homicidal act was not in con-
sequence of disease, and did not spring from insanity." To
the same effect is the testimony of Dr. Bell, on the trial of
Rogers,^ who stated that he had had a thousand patients under
his care.

§ 717. With regard to the argument of Dr. Jarvis, which has
been given above, the following observations are to be made : —

§ 718. First. However it may have been at the time Dr.
^ Jarvis wrote, it cannot now be affirmed that furor

Dangers , , , , , . .' .

attending tvansitorius, or mania transitoria, as a distinctive
of'tiir ^°^ disease, is recognized generally by the German and
mania. French writers on psychological medicine. Friedreich^

and Schiirmayer, as will presently be seen,^ positively decline to
award it such a status. Dr. Li man, who may be regarded of high
authority, not merely as the editor of Casper, but as a high govern-
ment officer charged with the judicial examination of questions of
insanity, says, with much emphasis, that there may undoubtedly be
transient attacks of insanity, but " there is no distinctive species of
mania of this class, no so-called 7nania transitoria^ " This un-
scientific and perilous designation," he continues, " cannot be
applied to practice ; and is entirely superfluous in the elucidation
of each individual case by the general diagnostic tests." And Dr.
Bucknill* says that " the existence of this class admits of grave
doubt," and adds, very justly, that " it is probable that the cases
of insanity which have been placed under this head were less recent
and sudden than they were supposed to be. The earlier stage of
diseased feeling had been unobserved by others, and unacknowl-
edged by the patient y

§ 719. Secondly. The alleged cases are either imperfectly re-
ported, or exhibit proofs of permanent mental lesion. Of imperfect
reporting may be mentioned No. 1 in Dr. Jarvis's statement as
given above. To prove a negative we must set out by showing
that there has been a due application of the requisite tests. But
as to the history of the patient whose case is here noticed, we have
no information, and no evidence given that any attempt was made
to search for it. Whether he had had prior attacks — whether there

» Pamp. p. 149. 3 Infra, § 722.

2 Handbuch, etc., p. 591 * Essay on Criminal Lunacy, p. 38.

620

MANIA TRANSITORIA. [§ 719.

was insanity in his family — whether he was epileptic — we are not
informed.

Case No. 2, that of Stadsrath Lemke, was reported as far back
as 1817, and has since been repeatedly canvassed. It was clearly
a case of sleep-drunkenness,^ to which it appeared that Lemke was
subject, and during which, at a prior period, he had made a homi-
cidal attack on his secretary. In the case cited above, it appears
he had been previously on a hunting party, and his sleep was prob-
ably deepened by his exposure, if not by conviviality. No doubt
he was startled by some noise, and thereupon attacked his wife in
words that showed that he thought her a thief. It was under a
similar delusion, when suddenly startled in his sleep, that he had
previously attacked his secretary. The case was not mania transi-
toria. It was simply the momentary terror and violence of sleep-
drunkenness ; a state capable of easy ascertainment, and of positive
judicial recognition.

Case No. 3 is that of a person who is spoken of as " excitable,"
and as belonging " to an insane family." Nothing is said which
excludes the supposition of subsequent insanity, of which the out-
burst referred to was the first open sign ; and there is no statement
as to the symptoms of " excitability" which in this woman of in-
sane family preceded this outburst. But, unless these symptoms
indicated insanity, and unless subsequent insanity occurred, it is
hard to make out of the facts above stated a case on which a court
of law could rest a verdict of irresponsibility. The "excitable"
wife of a laboring man, when he asks her, it may be in some way to
irritate her, if supper is ready, strikes at him with a knife, and the
blow proves fatal. Such cases are frequent in criminal courts ; but
in no case would an acquittal on ground of insanity ensue, unless
insanity was proved aliunde. If mania transitoria is supposed to
be sufficiently shown by such a violent act, taken by itself, then
there is no violence yielded to sudden rage that is not mania transi-
toria. The case, therefore, rests as follows : If there was no
proof of insanity aliunde, then there was no mania — nothing but a
burst of ill-temper and irritation, common to all acts of sudden vio-
lence. If there was proof of insanity aliunde, then the case was
not mania transitoria, for the very idea of the transitory and

' See supra, § 484.

621

§ 722.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

parenthetical character of this mania excludes the idea of its being
the manifestation of a continuous state.

The same observation applies to No. 4, though in this case the
question is embarrassed b j the fact that the defendant is admitted
to have had a " deep aversion" to the mother-in-law whom he
killed.

No. 5 would exhibit the same features as " homicide from gene-
ral malice," well known in the law books, were it not that the
defendant is stated to have had a prior " cerebral affection," and
subsequent to the deed to have lost all recollection of the event.
Here then, again, mania transitoria can only be sustained by evi-
dence of cerebral disease before and after the act. If, however,
there be such prior and subsequent cerebral disease, the case is not
mania transitoria.

§ 720. TJiirdly. To admit that such an hypothesis of irresponsi-
bility is applicable to acts of sudden abnormal violence, without
proof of insanity before or after the act, is to emancipate violence
and barbarism from penal restraint. The more atrocious the act —
the more complete the proof of the defendant's prior and subsequent
sanity — the more distinctively is the defence of mania transitoria
made out.

§ 721. Fourtlily. The principle of the law, that a person sane
before and after a particular act, is to be presumed to be sane
during such act, is a principle of common sense. ^ Without it, none
of the business and social intercourse of life could be sustained.

§ 722. Not differing widely from these results are the views of
Friedreich^ and Schiirmayer.^ The latter defines this phase of
mania to involve an attack of frenzy, fury, and raving madness,
accompanied with more or less confusion of the senses, and of the
thinking faculties, and peripheric consciousness which arises without
any perceptible or from a very slight external provocation, generally
lasts but a short time, hardly a few hours, and, after sometimes
leading to the most serious consequences, leaves but an indistinct
trace in the memory. It is either the opening symptom of a dis-
turbance of the super- physical faculties which has hitherto remained

> See supra, § 246. 3 Gericlit. Med. § 522.

2 Friedreich, Haudbuch der gericht-
lichen Psychologie, p. 591.

622

MANIA TRANSITORIA. [§ 722.

occult, and now first manifests itself, or it appears in persons hith-
erto entirely sane, or in individuals who have already suffered from
pronounced insanity, particularly from melancholy, depressed de-
lirium, lunacy, and imbecility. In the latter class of cases, the
question of responsibility presents no difl&culties ; far more in the
former, in view of the possibility that the guilty act may have been
the result of the outbreak of violent passion. It will then be often
impossible to do more than to set forth the possibility or probability
of a furor transitorius, which is effected by establishing the ex-
istence of facts which may have caused it. Such are epilepsy,
irregular development, gastric irritations, disturbances of the men-
strual or hsemorrhoidal courses, or the secretion of milk, the sudden
dispersion of eruptions of the skin, sunstroke, drunkenness, poison,
violent agitation, anger, dread, fright, deep shame, over-exertion of
the mind. But where no such probable causes are to be discovered,
the examination is necessarily confined to the statements of the
party, and the immediate investigation of his intellectual and moral
condition, the principal point of attention being the search and
scrutiny of the motives of the acts, and the inquiry whether or not
they were mingled with hallucinations or illusions, and whether the
act was not preceded immediately, or for some length of time, by
bodily disturbances, sleeplessness, restlessness, moodiness, etc.
Very great difficulties are involved in those cases in which an ad-
ditional doubt arises whether the ravings were not occasioned by the
criminal act itself, the probability of which, with a certain class of
temperaments, has been already noticed.

The non-recognition by the courts of this form of defence has
been already stated.^

1 Siipra, §§ 162, 166.

623

§ 723.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

CHAPTEII VIII.

DELUSIONS AND HALLUCINATIONS.

Marked by general derangement of tlie
perceptive faculties, § 723.

Various pliases of delusions, § 724.

Tests of EUinger, § 726.

Errors of insanity distinguishable from
those of sanity, § 727.

Distinction between illusions and hal-
lucinations, § 728.

Hammond's test of the distinction, §
730.

Delusions no defence in matters not
their product, § 731.

Question determined on circumstances
of each case, § 735.

Observations of Griesinger on distinc-
tion between illusions and hallucina-
tions, § 736.

Example of general insanity produced
by delusion, § 738.

Ei^idemic character of hallucination as
to loss of identity, § 739.

Observations of Griesinger on this
topic, § 740.

Hagen's theory of cause of delusions,
§ 741.

Illustration of partial delirium by Mayo,
§742.

Classification of partial hallucinations
by Abercrombie, § 743.

Marked by
general de-
rangement
of the per-
ceptive
faculties.

§ 723. Under this head will be treated that species of mental
unsoundness which is marked by the continued and con-
trolling existence of insane ideas, without being either
accompanied with delirium or with moral maniacal pro-
pensities to specific crimes. It may be considered as
covering the same phase as the partial lunacy (partielle
Verriicktheit) of Schiirmayer, who declares it to consist in crazy
notions, with only a secondary participation of the aifective facul-
ties, without damage to the peripheric consciousness, and without a
decided weakness of the intellectual powers. The subjects of it
have resolved their individuality into their delusion, it is in their
eyes an absolute truth, and all demonstration and argument in
opposition to it are idle. Persons of this kind often suifer no ex-
ternal mark to betray their inward disorder, frequently speak and
act quite rationally about and in matters outside of the circle of
their hallucinations, and only suffer the point of derangement to
transpire when it is adverted to in conversation or when they have
624

DELUSIONS AND HALLUCINATIONS. [§ 724.

occasion to write. The malady may easily lead to the gravest vio-
lations of law, for which reason it is of the greatest judicial interest.
Where the act is clearly the result of this morbid condition of the
mind, no legal responsibility can attach to it.'

This species of mental unsoundness appears less frequently as a
primary disease, than as a secondary result, developed out of prior
disease, in the form of melancholy or otherwise. When the general
expansive and depressive aflfection of the sentiments recedes, the
confusion of the peripheric consciousness is dispelled, the bodily
health regains its equilibrium, the patient finds himself endowed
with a system of affections and perceptions to which he was before
a stranger, but which revolve round one or more manifestly insane
stand-points.

§ 724. These various fancies are reducible to certain groups,
which take their point of departure (1) in the relations
of the individual to the external world, to the super- phases of
natural, and to his own personality, or (2) in perceptive ^'^^^^^^o"^-
anomalies of depression and mania.

The former view admits the following classification : crackhrain-
edness,^ where the erroneous notions relate to the objects and rela-
tions of the external world, and of the body of the individual ;
frenzy, where they concern things beyond the reach of tlie senses,
religious mysteries and divine inspirations ;/o//3/ [Harrheit), where
the identity of the person has undergone a change. In the latter
view, the subject-matter of the delusion generally depends upon the
kind of erroneous notion which accompanied the preceding stages
of depression and mania. The delusion itself is of a depressing or
elevating description. The depressive form subdivides as follows: —

a. Hypoehrondriacal delusions, where anomalous bodily sensa-
tions— delusions of the sense of touch — suggest the idea, that par-
ticular parts of the body have been transformed, that there are
parasitic animals in them, or injurious substances, which must be
removed, etc.

h. Demoniacal delusions. The patients declare and maintain,
with perfect self-possession and entire calmness, that demoniac

' Schlirmayer, Gericht. Med. § 556 ; at the same time tells us is expressed

supra, §§ 125-145. bj the Scotch by the phrase " having

2 "A little cracked," to use Dr. a bee in his bonnet."
Rush's popular synonyme, for what he

VOL. I. — 40 625

§ 725.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

beings or other persons, living or dead, have their seat in their
bodies.'

c. Such delusions,^ called by Ellinger " concentric," as consist
in the delusion that the personal reputation of the suiferer has been
injured by a real or imaginary misfortune, that the infamy incurred
has reached the ears of the highest circles — impressions still further
confirmed by delusions of the sense of hearing — and that no re-
source is left but either seclusion from all intercourse with mankind,
or restitution of good fame by some bold exploit.

d. Perijyheric delusions, in which the patients regard themselves
as the objects of a plot on the part of the authorities or of their
relatives, or of some secret society, surrounded by spies and func-
tionaries of the secret police, watched and dogged at every step,
injured bodily and mentally in action and repose ; persecuted and
endangered in life and property, or that they are beleaguered by
thieves, robbers, and murderers, or that spirits hover in the air to
torment and disquiet them, etc.

§ 725. The elevating or ecstatic phase of this species of mental
unsoundness subdivides itself, according to Schlirmayer :^ —

a. Religious delusions, which may be considered in connection
with dsemonio-mania, already noticed,* in which the patient pretends
to stand in a particular position, as regards degree and distinction,
in the eye of God, to have been appointed censor, prophet, re-
former, and Messiah, etc. ; these are generally accompanied with
hallucinations of sight and sound, and often lead to the most dread-
ful crimes.

h. Delusions of pride. The patients suppose themselves called,
by their qualifications of person and mind, to the most important
missions.

c. Delusions of vanity. The delusion here is a supposed descent
from a princely lineage, elevation to a higher social position, etc.,
the enjoyment of which, however, is destroyed by the machinations
of the envious and malevolent.

d. Sexual delusion, which is sometimes of a more intellectual,
sometimes of a more carnal nature, is a state of mind in which the
patients suppose that, in consequence of their personal charms or

> See ante, §§ 644-650. » Med. Journ. § 556.

2 Ellinger, p. 132. * Supra, §§ 644-677.

626

DELUSIONS AND HALLUCINATIONS. [§ 726.

other advantages, either all people of the opposite sex, or even
persons occupying a higher rank, such as princes, are in love with
or betrothed to them in spirit. This is attended Avith many hallu-
cinations, particularly of the sexual kind.^

§ 726. It is not to be denied that the proper consideration of
this species of mental unsoundness presents great diffi- Tests of
culties, and the practical suggestions of Ellinger^ are Eiimger.
indeed worthy of peculiar attention. He notices the following
phases : —

" 1. An impression of having sustained wrongs at the hands of
certain persons, against whom revenge is meditated and executed.
Here the diseased individual often acts on mature reflection, and in
the full knowledge that he has no right to take revenge, and of the
consequences which ordinarily ensue ; and then it may occur either
that he prefers undergoing the extremity of the law, and perishing
together with the supposed wrongdoer, to remaining longer exposed
to his assaults, or that he proceeds on the ground of his known and
established insanity, calculating to escape responsibility and punish-
ment on the strength of the indulgence accorded to his case. Here
there appears in general ground to assume a moral responsibility .^

" 2. An impression that the patient is acting at the instigation
or under the constraint of demons. In this case it might become
necessary to inquire whether, and in how far, the patient under-
stood that the demands of the demons were wrongful, and that he
was at liberty to withstand them, and whether, and in how far, it
was actually in his power to withstand them.

" 3. The patient imagines himself beset by thieves, etc., and
neither sure of his property nor of his life. This may perhaps be
treated as a case of self-defence, and all responsibility excluded.*

" 4. The self-consciousness of the patient is perverted, and he
acts with that plenitude of power with which he is invested in view
of his position and his destiny, in religion, politics, etc. In this
case, as under the third position, responsibility is out of the ques-
tion.

" But as a fixed idea never occurs in such isolation as is erro-

> Supra, § 617. 3 See supra, §§ 12.'i-145.

2 P. 137. « Supra, §§ 125-145, 442.

627

§ 727.] MENTAL UNSOUNDjSTESS CONSIDERED PSYCHOLOGICALLY.

neously supposed, there being always a series of phantoms con-
nected in a system, the outlines of which it may be periiaps
impossible to define with accuracy ; and as the entire affective
life has become altered and irregular, the general views of men and
things have become distorted, and illusions of the senses often
brought to light by a rigid scrutiny, which entirely escaped the
eye of the superficial observer — as the action, reaction, and intro-
action of the psychical faculties is no longer measurable by the
ordinary standard — ojnnions must be given with the greatest cir-
cu7nspection, and every j^ossihle reservation^ whenever the connec-
tion or want of connection between the illusion and the deed is not
jyerfectly evident.'^

§ 727. It is not easy to mistake the error of a lunatic for the
error of a sane man. The decisive point of difference

Errors of

insanity between them is, that in the latter case the action of the

abie^rom^' thinking faculties, from whatever cause this be, ter-

those of minates too soon, and before the entire subject has been
sanity. .

thoroughly sifted, and that such an eri'or, after having

been properly refuted, can only be maintained by dint of obstinacy
or indolence. In insanity, on the contrary, the error of the under-
standing is occasioned by the abnormal function of the perceptive
faculty. One or two prevailing schemes of perception' are applied
to almost all other perceptions to which they can be adjusted in any
way, and thus one and the same tout ensemble of perceptions is
continually reproducing itself on the slightest provocation. Hence
the chain of association loses, in the eye of the individual, its
accidental, personal, and contingent character, and by its constant
recurrence, deludes the understanding with the idea that the same
connection subsists between the objects in reality as in the imagi-
nation of the individual, until at last reason herself is misled into
seeing a necessary relation of cause and effect in the perceptions
Avith which it finds itself invariably associated. The individual is
therefore compelled to think accordingly ; and even if he is some-
times brought by instruction to acknowledge his error, it is only to
relapse into it, not so much from obstinacy as because of this com-
pulsory synthesis of the perceptive faculties. A sane man in error
retains the -power of doubting., not the madman. This condition of

' Compare Hagen, vol. ii. p. 707.

628

DELUSIONS AND HALLUCINATIONS. [§ 729.

the perceptive faculties is also the cause of the great indifference
manifested towards surrounding things, of the dreamy manner and
the illusions growing out of it. It is also a matter of course that
the perceptions, by their constant recurrence, cease to be mere per-
ceptions, but ultimately take rank as thoughts and ideas, in conse-
quence of their constant action upon the understanding, and their
assumption of the form of propositions.^

§ 728. A distinction is very properly drawn by Schiirmayer,

following in this respect the general current of modern ^,. ,. ,.
_ , ^ ^ \ ^ , ^ Distinction

opinion, between illusions and hallucinations, the former between
. , , • ,1 • 1 • , illusions

comprising mistakes m the conception and interpreta- and haiiu-

tion of the perception of objects actually present, while ^'^^^^o"^^-
in the latter the perception which originates in a diseased action
of the senses appears to the patient as if the sensation were pro-
duced by a real external object acting upon the senses.^

The distinction is thus stated by Dr. Taylor : " hallucina-
tions are those sensations "which are supposed by the patient to
be produced by external impressions, although no material objects
may act upon the senses at the time.^ Illusions are the sensations
produced by the false perceptions of objects."* " When a hallu-
cination," he proceeds to say, " or an illusion is believed to have a
real and positive existence, and this belief is not removed either
by reflection or an appeal to the senses, the individual is said to
labor under a delusion; but when the false sensation is immedi-
ately detected and is not acted upon as if it were real, then the
person is sane."

§ 729. " As a morbid condition of the brain," says Sir Ben-
jamin Brodie, " may produce the impression of visible objects, or
of voices, which have no real existence, so it may also produce
notions of a more complex and abstract character, and these may
be constantly obtruded on the mind, so that the individual is unable
to withdraw his attention from them, being, as it would seem, as
much beyond the influence of volition as the muscles of a paralytic
limb. Thus, one person believes himself to be ruined as to his

' Ellin! er, p. 818. * Taylor's Medical Jurisprudence, p.

2 Schiirmayer, Gericlit. Med. §§ 554. 552. See a remarkable case, combin-

3 See, on this subject, remarks by ing the characteristics of delusions and
Dr. Sigmond, Jour, of Psychol. Med., illusions, 21 Journ. Ment. Sci. 226.

p. 585, 1848.

629

§ 731.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

worldly affairs, and that he and his family, though really in
affluence, are reduced to extreme poverty ; while another is per-
suaded that he is in possession of unbounded wealth, the conse-
quence being that he is in danger of being ruined by extravagance ;
and a third is under the apprehension of his being accused of some
dreadful crime, and perhaps seeks refuge from his fears in self-
destruction. It is more difficult to escape from the latter than from
the former class of illusions, as the appeal lies not from one sense
to another, but to a more refined process of thought and reflection
and the examination of evidence."^

§ 730. A writer of much acuteness, Dr. Hammond, of New
York, has, as has already been noticed,^ distinguished

Dr. Ham- illusions and hallucinations on the one side, from delu-
mondstest ^ '

of the dis- sions on the other, by declaring that of the falsity of the

tinction. . i i n • ,• \ m • ,

first (illusions and hallucinations), the patient may or
may not be conscious, but that of the falsity of the latter he is
unconscious. The difficulty as to this distinction is that illusions
and delusions are often used convertibly ; and that, in addition, the
distinction amounts to no more than saying that as to illusions and
hallucinations the patient is open to reason, and is therefore sane ;
but that as to delusions he is not open to reason, and therefore is
insane. But this is in conflict with the almost universal practice of
medical psychologists, which is to speak of illusions and hallucina-
tions as among the symptoms of insanity.

§ 731. A question of much medico-legal importance has arisen in

-^ T . this connection as to whether insane illusions or halluci-

Delusions

no defence nations (" delusions" as they would be called if the
not their nomenclature above mentioned be adopted) can coexist
product. ^-^^-^ general mental soundness. If the observations
above mentioned be correct, the question is to be answered promptly
in the negative. He who conceives a tree to be a man, or a
friendly neighbor to be a robber, and who cannot be reasoned out
of such conceptions, is insane. The degree of his insanity, how-
ever, and the extent to which it divests him of responsibility, is a
question for distinct consideration. He may be insane, and yet, as
to acts not the product of insanity, he may, as has been shown, be
responsible.^

' Psychological Inquiries, etc., p. 79. ^ See supra, § 312.
London, 1854. 3 Supra, §§ S'Jr-GO ; 145.

630

DELUSIONS AND HALLUCINATIONS. [§ 733.

§ 732. The difficulty here, so far as it does not rest on a con-
fusion of terms, arises from the erroneous assumption that percep-
tion is an independent factor, capable of independent disease, some-
what in the same way that a mirror in a chamber may be broken,
without the chamber being in any other way disturbed. But the
perceptive powers are not a mere mirror. " All perception or
knowledge," says Mr. Bain,^very accurately, "implies mind. To
perceive is an act of mind ; whatever we may suppose the thing to
be, we cannot divorce it from the percipient mind." In sight, for
instance, we have the action of light on the retina, accompanied by
a series of nerve currents and other influences ; but the " mental
phenomenon is the feeling, or subject state accompanying these,"
and " the w^ord (sight) is properly applicable, and should be con-
fined in its application, to the strictly mental act." A child, for
instance, sees the moon, and conceives it to be within its reach.
Here the hallucination rests exclusively on defect of reason ; in
other words, there is no memory to recall the fact of failures to
grasp the moon in particular or objects in general which present
themselves to the eye as distant. The same illusion might occur
in the fatuous imbecility of old age. Now where this illusion can-
not be reasoned away — when it would be in vain for us to say,
" try to seize the moon, and you will find it escapes your grasp,"
or " objects having the appearance of distance, as you will learn
through memory and association, are proportionally removed from
your reach" — if the person whom we address is incapable of thus
reasoning, then he is mentally unsound. But it is absurd to speak
of this unsoundness being confined to this particular illusion. It is
a general mental unsoundness — i. e., it springs from the weakness
of the functions of memory and of association, which are among the
prime factors of reason. ^ And yet, at the same time, the unsound-
ness may not reach so far as to require the sequestration of the
party, and the declaration of his irresponsibility .^

§ 733. So, also, with regard to the sense of sound. A person of
weak nervous system is wounded by a gunshot, and ever afterwards
associates a noise like that of the report of a gun with severe per-

' Bain's Mental and Moral Science, may be supported by the high author-
p. 196. London, 1868. ity of Uriesinger, Ment. Path. § 47.

2 See supra, §§49-60. This argument 3 Supra, §§ 46-60, 145.

631

§ 735.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY,

sonal pain. If you cannot reason this away by experiment or
explanation, then the patient's mind is unsound. He is not, it is
true, " insane" in the sense of being subject to a single insane illu-
sion. His mind is unsound because his powers of memory and
association are so perverted and disordered that he treats a single
instance of association as a general law. The derangement arises
from the debility of an organ essential to all complete mental judg-
ments. On the same reasoning may be explained the cases of sleep-
drunkenness Avhich have been already noticed. A hunter in his
sleep hears a noise like a shot ; he springs up and shoots the sup-
posed assailant. He is judged irresponsible, not because he is the
victim of a particular insane illusion, but because, in the condition
of trance-like dream in which he was at the time of the event,
his reason was suspended, and his mind, as such, not only in this,
but as to all other processes involving memory, association, and
discrimination, was deranged.

§ 734. So, also, with the common monomaniac delusion of perse-
cution. A man believes himself to be persecuted by all mankind ;
that he is the victim of a conspiracy to poison ; that he is beset by
evil spirits in the shape of men. There is, however, no distinctive,
collateral, independent mania about this, capable of existing when
the mind itself is sound. The mind, in such a case, is unsound.
The unsoundness, it is true, may only exhibit itself in this particular
method in the same way that an irritable temper discharges itself
on some particular object. The cause, in the first case, is in the
mental derangement which, when one illusion is dispelled, seizes on
another, just as the irritable temper pounces on object after object
on which it may successively vent itself while the ill-humor lasts.

Here, then, arises the interesting question, when do the powers
of memory,^ of association, of discrimination, become so enfeebled
or perverted as to constitute incompetency and irresponsibility ?

§ 735. Psychologists have failed in supplying any such uniform
OuestioB *®^^- -^-'^^^ question must be determined concretely as to
determined each caso by the history, conduct, examination of the
stenceT^" patient himself. It may, however, be generally said that
each case-. ^^^^ ^ delusion is transient ; when it is capable of be-
ing repressed ; when the patient takes steps which show that he

' See 23 Jouru. Ment. Sci. 609.

632

DELUSIONS AND HALLUCINATIONS.

[§ 737.

is conscious of its unreality ; when it can be dispelled by the force
of countervailing considerations ; then mental unsoundness is not
to be assumed. It is otherwise when the delusion, however it may
be concealed, is, on the one side, in itself palpably absurd, and yet,
on the other side, it is cherished by the patient as a radical belief.^

§ 736. If such be the case, then, as to acts which are the pro-
ducts of such delusion, the patient is to be regarded as incompetent
and irresponsible.^ And as to acts not the result of such delusions,
his mind may be regarded as so enfeebled or confused as to subject
him only to a diminished criminal responsibility.^

§ 737. "The most general and most important sensitive ano-
malies in states of mental disease," says Griesinger, " are ^^

' -^ . . Observa-

the hallucinations and illusions. By hallucinations Ave tions of

understand subjective sensorial images, which, however, on distfnc-

are projected outwards, and thereby become apparently tween'^iiiu-

obiects and realities. By an illusion is meant the false ^^'^^^ ^^^^

'-' ^ "^ _ , hallucma-

interpretation of an external object. It is an hallucina- tions.

' An Esop, to adopt an illustration
of Dr. Liman, fancies himself an
Adonis, or a Xantippe thinks proper
to regard herself as a woman of soft
and tender beauty. Now such assump-
tions flatly contradict the truth, as it
is regarded by the great body of man-
kind. People such as these are called
" fools," though no one thinks of lock-
ing them up in a mad-house. For
"Esop" is not a real believer in the
delusion. If he is, why does he dye
his hair ? And why does Xantipi^e paint
her cheeks, and resort to so many
devices to cover the reality of old age ?
Yet at the same time, as is further
illustrated by this acute observer, it is
not always easy to mark in tliem the
point at which sane folly passes into
insane folly. Thus a wise parsimony,
by scarcely perceptible steps, may be-
come avarice ; and avarice may over-
step the limits of sanity, and, under
the influence of insane illusions, refuse
to eat, for fear of starvation. The only
question in each case is, is there with

the patient a delusion really insane,
and if so, did the delusion produce the
litigated act ? And this is to be deter-
mined according to general psycholo-
gical and psychopathical tests. And
it has been well said by an eminent
writer on this topic. Dr. Sander (cited,
Liman's Casper, p. 554), that in con-
ducting the inquiry we are not to be
so much governed by the specific fancy
in question, or by this or that illusion,
as by the patient's original psycholo-
gical state, by the cause and course of
the disease, in short, by its develop-
ment as a whole. " For in such cases
we must fall back on the development
— ^liistoiy of the concrete case."

See Les Le9ons Cliniques de M. Fal-
ret, Lecjons 3, 4, 5, 6, pp. 95, 185, Paris,
1854 ; also Etudes Psychologiques, par
L. F. Gr. Renaudin, chap. viii. p. 388,
Paris, 1854 ; and also Dr. Hammond's
Essay on McFarland's Case, 4 Ham-
mond's Journ. Psyc. Med. 449.

2 Supra, §§ 46-60, 145.

^. Supra, § 200.

633

§ 737.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOaiCALLT.

tion when I see human forms while in reality no man is near, or
hear a voice which has not spoken. It is an illusion when I take a
bright cloud in the heavens for a fiery chariot, or when I believe
that I see an old friend when a stranger walks into the room. In
hallucination there is no external object, it is a false sensation ; an
illusion is a false construction, a transformation of a peripheral
sensation.

" The motive of this sensation does not necessarily require to
exist in the external world ; it may also be within the special
organism ; therefore the false interpretations to which peripheral
pains (neuralgic, rheumatic) are subject, are considered illusions,
as the idea of being pregnant, which proceeds from unusual ab-
dominal sensations, or that case mentioned by Esquirol, in which a
patient had pain in the knee, and kept striking it with the fist, call-
ing out, ' Wait, you rascal, you shall not escape me !' "^

" The distinction between hallucinations and illusions was made
by Esquirol. It ought to be maintained, although it cannot be
adhered to with perfect exactness.

" In the senses of taste and cutaneous sensation especially the
distinction is often impossible. In the other senses, too, the view
of illusions as false judgments is, in many cases, too limited. They
are, in the majority of cases, actual transformations of impressions
transmitted by the organs of sense, when, for example, a portrait
on the wall appears to roll its eyes and walk out of the frame, or
when the visage of an old woman appears to be young and beau-
tiful.

" Here internal images are substituted for real perceptions ; it is
a mixture of hallucination and real sensorial perception ; the latter
becomes thereby transformed in the sense of the dominant ideas
and frames of mind. We can also express the relation between
them so ; the hallucinations are either quite complete when they
provide the entire object, or they are incomplete (illusions) when to
a real external object other qualities which it does not possess are
attributed. "2

' Griesiuger's Mental Pathol., Syden. Esquirol, several articles in Diction-

ed. (1867), § 52. nairedes Sciences Medicales, and Traite

2 Gratiolet. de 1' Alienation. Bayle, M6m. sur les

The following is given by Griesinger Hallucinations, Revue Medic, Jan.

as the literature of sensorial delirium : 1825. Miiller, Ueber phantastische

634

DELUSIONS AND HALLUCINATIONS. [§ 738.

" Hallucinations," continues Griesinger, " may occur in all the
senses — in the senses of sight, hearing, smell, taste, and cutaneous
sensibility. In individuals sometimes this, sometimes that, fre-
quently several, occasionally all, these various sensorial functions
are affected at the same time ; the hallucinations are real sensa-
tions, not mere fancy. The patient really, and not merely fanci-
fully, thinks that he hears, sees, and smells ; and should we meet
the sensorial delirium with arguments of reason, we generally
receive answers such as Leuret did from one of his patients:^ 'I
hear voices because I hear them — how they originate I know not,
but to me they are as distinct as your own voice ; if I admit the
reality of your words, you must also allow me to believe in the
reality of those voices, as to me both are equally appreciable.' "

§ 738. Delusion may spread in such a way as to cover the whole
surface of the mind, leaving no so^^nd perception un- „ .

touched. Dr. Rush, in the following report given by general in-
him of the conversation of a patient laboring under this duced by
phase, very happily illustrates this incoherence, and at <^ "^^loi^s-
the same time the occasional point by which its intellectual opera-
tions are distinguished: "No man can serve two masters. I am
Philip, King of Macedonia, lawful son of Mary Queen of Scots,
born in Philadelphia. I have been happy enough ever since I
have seen General Washina;ton with a silk handkerchief in Hio;h
Street. Money commands sublunary things, and makes the mare
go ; it will buy salt mackerel made of ten-penny nails. Enjoy-
ment is the happiness of virtue. Yesterday cannot be recalled. I

Gesichtserscheinungen, Coblenz, 1826. wise the -vrritings of Arnold, Reil, Has-

Lelut, De la Folie Seiisoriale, Gazette lam, Hoffbauer, Neumann, Friedrich,

Med., 1833. Boid, Thatsachliche Be- Jessen, Archambault in Ellis's Traite,

merkungen iiber Sinnestanschungen, p. 180, segg., etc. Sinogowitz, Die

Friedricli's Magazin, Sept. 17, 1831. Geistesstbrungen, Berlin, 1843. Mi-

Dietz, Ueber die Quelle der Sinnes- chea, Du Delire des Sensations, Paris,

tanscliungen, ibid., Heft 111, 1832. 1846. Baillarger, Des Hallucinations,

Leuret, Fragmens psychologiques, Mem. de I'Acad. de Med., tome 12e,

Paris, 1834. Bottex sur les Halluci- Paris, 1846. Brierre, Des Hallucina-

nations, Lyon, 1836. Marc, Geistes- tions, Paris, 1847 (2d edition, 1853).

kranklieiten translated by Ideler, i. Leubuscher, Ueber die Ensteliung der

1843. Hagen, die Sinnestanschungen, Sinnestanschungen, Berlin, 1852. See,

Liepzig, 1837. Baillarger, in Archiv also, 24 Journ. Ment. Sci. 97 ; 22 ibid.

Gener. 1842-3. Patterson, Annal. 475.

M6d. Psycholog., Mars, 1844. Like- ' Fragments, p. 203.

635

§ 740.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

can only walk in the night-time when I can eat pudding enough. I
shall be eight years old to-morrow. They say R. W. is in partner-
ship with J, W. I believe they are about as good as people in
common — not better, only on certain occasions, when, for instance,
a man wants to buy chincopins, and to import salt to feed pigs.
Tanned leather was imported first by lawyers. Morality with vir-
tue is like vice not corrected. L. B. came to your house and stole
a coffee-pot, in the twenty-fourth year of his majesty's reign.
Plum-pudding and Irish potatoes make a very good dinner. No-
thing in man is comprehensible in it- Born in Philadelphia. Our
forefathers were better to us than our children, because they were
chosen for their honesty, truth, virtue, and innocence. The
Queen's broad R originated from a British forty-two pounder,
which makes too loud a report for me. I have no more to say. I
am thankful I am no worse this season, and that I am sound in
mind and memory, and could steer a ship at sea, but am afraid of

the tiller Son of Mary Queen of Scots. Born in

Philadelphia. Born in Philadelphia. King of Macedonia."^
§ 739. Hallucinations involving a belief that the patient has
been transformed into various species of animals have

Epidemic . . i • a i i •

character been at timcs almost epidemic. Analogous to these is
nations^as' ^^^® belief that worms, frogs, or snakes have taken up

to loss of their abode in the head or stomach, which consume the
identity. _ _ _'

brain or entrails. Men have fancied themselves preg-
nant, and imagined themselves shadows or corpses, or to be con-
structed of glass, butter, or wax. At one time the belief in a
transformation into wolves or other wild animals became so preva-
lent as to acquire a title to itself (Lycanthropia). In cases of this
last phase the disease became so uncontrollable as to impel its
yictim to a close imitation of the wild animal itself, falling upon
other men and animals, and snapping at and biting them. Andral
relates a case of a child of fourteen years who tore wildly about
the field, biting other children that came in its way, and producing
an epidemic consternation in the neighborhood.^

§ 740. Griesinger thus speaks of hallucinations of loss of

• Eush on the Mind, pp. 242, 243. will find a very interesting disquisi-
2 Coiirs de Patholog. Interne, tome tion on this point in Wierus's work, De
iii., Paris, 1836, p. 176. The curious Prsestigiis Dsemonum, lib. iv. c. 23.

636

DELUSIONS AND HALLUCINATIONS. [§ 740.

identity: "The patients renounce their former perso- Observa-
nality, and consider themselves sometimes animals Griesino-er
(wolves, oxen, etc.), sometimes historic individuals ^"^ .*^^^
(Napoleon). Sometimes the whole body is considered
dead, or as not really theirs, or as composed entirely of inanimate
substances, as wood, glass, wax, butter, etc. At other times the
body is merely felt to be extraordinarily heavy, or to have acquired
a very great circumference, etc.

" On the other hand, these anomalies of the general sensation
are sometimes local, confined to certain parts of the organism. The
patient supposes that certain of his members are wanting, or that
they are not connected to his body in the Avay they used to be.
For example, he thinks that he no longer has a head, that one of
his arms or legs is petrified or made of glass, or he feels as if a
certain part were uncommonly large, and the nose in particular is,
in many cases, the object of this illusion.

" There are, besides, observed in the insane, as more transient
states, sensations familiar to many healthy persons in dreaming, of
flying high in the air, of being precipitated from a height, or of
general giddiness. Sometimes a veritable aura is felt before an
attack, as it is before an epileptic seizure.

" The seat and the more immediate causes of these anomalies of
the general sensation are difficult to understand. In several cases,
indeed, they depend — for example, the feeling of absence of a part
of the body— on evident anaesthesia, or more frequently an analge-
sia of the organ. At other times, however, the peripheral sensi-
bility of the cutaneous surface, and perhaps even the sensibility to
pain, is fully maintained, and obscure modifications of the muscular
sensibility, Avhich likewise appear to play an important part in
ordinary dreaming, may be the original disorder which the ex-
planatory reflection lays hold of to form delirious conceptions. The
transformation into animals appears to be much more related to the
mind in its origin, and the basis of this false idea may depend on
the appearance and influence of certain instincts peculiar to certain
species of animals, as the cruelty and ferocity of the wolf. But here
also a marked deviation from the normal general sensation is always
necessary to the full development of the ideal metamorphosis.'

1 Griesinger's Mental Pathol. Syden. Leuret (Fragm. Psycliol. sur laFoli^,
ed. (1867) §49. Paris, 1834, p. 101) has made an in-

637

§ 741.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

" Examples of insane persons considering themselves dead, and
not recognizing their body as their own, are numerous. Esquirol
mentions that, in a woman who believed that the devil had carried
away her body, the surface of the skin was completely insensible.

" To such states there are also analogues in acute diseases. A
medical friend has frequently told me that he, in even slight febrile
affections, has always the sensation of remarkable enlargement of
the limbs.

" A convalescent from fever believed that he was really two per-
sons, one of whom lay in bed while the other walked about. Al-
though he had little or no appetite, yet he ate a great deal, because
he had to nourish two bodies.^

" Patients with paralysis of sensation of one-half of the body
have sometimes the idea that another person, or even a corpse, lies
beside them in bed.^ Such false opinions belong to the so-called
illusions, soon to be considered.

" The sensation of flying in dreams appears to be due to accele-
ration of the inspiratory movements, and that of being drawn from
a height to their becoming slower (Gratiolet) ; corresponding images
are associated with these.

" All considerable alterations of the common sensation are always
amongst the most important elements of mental disease. When this
general basis of the bodily sensations is falsified, corresponding
false ideas are formed with extreme facility. These anomalies are
always to be specially investigated, as they occasionally furnish in-
dications for therapeutical treatment."^

§ 741. According to Hagen,^ the cause of the delusions of the

teresting collection of several old ex- the reason why my skin is not hairy

amples of the so-called Lycanthropia, like that of a wolf is that it is reversed

and several cases of more recent date and the hairs are inside." To convince

of insane persons wandering in the himself of this he made incisions in his

woods and carrying off and even kill- hody and cut his legs and arms, so that

ing children, from a fierce instinct to he died of the wounds.

murder. Wier narrates an example of • Leuret, loc. cit., p. 95.

a man from Padua who, in the year ^ Bouilland, Traite de I'Encephalite,

1541, believed himself transformed into Paris, 1825, p. 64.

a wolf, and, on the open plain, attacked " Ibid.

and slaughtered those whom he met. * Compare Wagner's Haiadworter-

" I am really a wolf," said he, "and buch der Physiologic, vol. ii. p. 811.

638

DELUSIONS AND HALLUCINATIONS. [§ 742.

senses is either a mere physical stimulus, which, acting upon the
fountain-heads of the sensational nerves in the brain, pro-
duces eccentric sensations, and induces the individual to theory of
incorporate his sensations into an image, in which case lu^jong^*^^
it will depend upon the particular circumstances of the
case, especially on the mental and moral condition of the individual,
whether or not such apparitions are believed to be genuine. And
upon another hypothesis, suggested by the same author, the disease
is only a strong morbid susceptibility of the brain to eccentric sen-
sations, with which some fancy or other comes into such a collision
as to act as the stimulating cause of a paroxysm, bringing, at the
same time, a complete phantom before the external sense, just as,
in cases of convulsive diseases, St. Vitus's dance, etc., an intended
slight motion may bring a convulsion into that particular system of
muscles. Great care must be taken, however, not to include under
this head what is not really a delusion of the senses. If, for in-
stance, a madman takes a person or a black cat for the devil, there
is no delusion of the senses. On the contrary, in supposing the
devil to have assumed such a shape, the maniac only directs his
madness to an object of which, in itself, he has a correct perception.
Delusions, also, we are admonished by Schiirmayer, must not be
mistaken for confusion of the senses, which consists in an entire
obstruction of the conceptions, an incapacity to obtain adequate
apperceptions, and sometimes in an entire want of objective con-
sciousness and recollection.

§ 742. The following interesting illustration of partial delusion
is given by Dr. Mayo : " In a case to which I was called

T_ T\ TVT r -J. • r ^ Illustration

m by Dr. Monro, a tew years ago, it was our pamiul of partial
duty to resist the liberation of a patient, an old lady, ^^a'o""^''^
whose confinement under certificates had continued for
sixteen years. For six years she was described as having been in
a state, first of acute, and then chronic mania. For many years,
we learned, that she had regained the power of conversing consecu-
tively and sensibly, indeed without the smallest evidence of inco-
herent or irrational remark, and such appeared to us her present
state. The objections which existed to her being then considered
sane, if she had been insane up to the time we saw her, on the
ground of her advanced age, weighed on our minds, but seemed in-
sufficient. The evidence of her attendants, who considered her still

639

§ 743.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

insane, on the ground of occasional outbreaks of temper, was that
of interested witnesses. She was a patient in chancery, and the
visiting physicians had become favorably disposed to her enlarge-
ment, as a sound-minded person. Now, the question was in this in-
stance determined in our minds by a discovery of a very remarka-
ble notional delusion which held its ground in her mind. In a set
of draAvers in this lady's bedroom, and in certain trunks there, to
which Ave were conducted without her knowledge, we witnessed a
large and very heterogeneous and dirty collection (dirtiness had
been a symptom of her insane state), consisting of old bottles,
broken cups and saucers, brass knobs, bits of old string, shreds of
linen and cloth, small bundles of AA'ood, such as light fires, pieces
having been apparently picked up and tied together, a cup con-
taining dirty food of the most disgusting appearance, which had
evidently been long there, bits of valueless stones, coals, nails, etc.
This accumulation, which could not have been extemporized by the
attendants to make out a case, and of which accordingly the patient
must have been long aAvare, Avould have occasioned strong doubts as
to her sanity, even if no prior grounds of suspicion had existed ; but
carefully preserved by one who up to a recent date had been so far
suspected of insanity that she had not been set free by the visiting
commissioners, Avho AA'as in her seventy-first year, and therefore the
less likely to have obtained a cure, it became, in the opinion of Dr.
Monro and myself, a conclusive ground for resisting this lady's
immediate enlargement,"^

§ 743. Particular hallucinations are classed by Abercrombie
under the folloAving heads: —

ClaSSiflca- -, -n> • • n ^ I'llll 1

tion of "1. Propensities oi character, Avhich had been kept

fucination " under restraint by reason or by external circumstances ;

by Aber- ^^ old habits, Avhich had been subdued or restrained, de-
crombie. ' _ '

veloping themselves Avithout control, and leading the
mind into trains of fancies arising out of them. Thus, a man of an
aspiring, ambitious character may imagine himself a king or great
personage ; Avhile in a man of a timid, suspicious disposition the
mind may fix upon some supposed injury, or loss either of property
or of reputation.

• Mayo on Medical Testimony in Dr. Storer's remarks in his "Insanity
Lunacy, pp. 33, 34. See, however, in Women," p. 120.

640

DELUSIONS AND HALLUCINATIONS. [§ 743.

" 2. Old associations recalled into the mind, and mixedup perhaps
with more recent occurrences, in the same manner as we often see
in dreaming. A lady, mentioned by Dr. Gooch, who became in-
sane in consequence of an alarm from a house on fire in her neigh-
borhood, imagined that she was the Virgin Mary, and had a
luminous halo around her head.

" 3. Visions of the imagination which have formerly been in-
dulged in, of that kind which we call waking dreams, or castle-
building, recurring to the mind in this condition, and now believed
to have a real existence, I have been able to trace to this source of
the hallucination. In one case, for example, it turned upon an
office to which the individual imagined he had been appointed ; and
it was impossible to persuade him to the contrary, or even that the
office was not vacant. He afterwards acknowledged that his fancy
had, at various times, been fixed upon that appointment, though
there were no circumstances that warranted him in entertaining any
expectation of it. In a man, mentioned by Dr. Morison, the hallu-
cination turned upon circumstances which had been mentioned when
his fortune was told by a gypsy.

" 4. Bodily feelings giving rise to trains of associations, in the
same extravagant manner as in dreaming. A man, mentioned by
Dr. Rush, imagined that he had a Caffre in his stomach, who had
got in at the Cape of Good Hope, and had occasioned him a con-
stant uneasiness ever since. In such a case, it is probable, that
there had been some fixed or frequent uneasy feeling at the stomach,
and that, about the commencement of his complaint, he had been
strongly impressed by some transaction in which a Caffi'e was con-
cerned.

" 5. There seems reason to believe that the hallucinations of the
insane are often influenced by a certain sense of the new and
singular state in which their mental powers really are, and a cer-
tain feeling, though confused and ill-defined, of the loss of that
power over their mental processes which they possessed when in
health."!

The law with regard to delusions and hallucinations has been
discussed in prior sections.^

1 Intellect. Pow. 255, 256. In this public journal from an insane patient,
connection see a remarkable letter to a quoted 22 Jonrn. Ment. Sci. 454.

2 Supra, §§ 34-(J0 ; 125-146.

VOL. I.— 41 641

§ 745.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

CHAPTER IX.

LUCID INTERVALS.

Law recognizes possibility of lucid in-
tervals when proved, § 744.

Nature of lucid intervals ; Renaudin,
§745.

Suggestions of Ellinger and Schiir-
mayer, § 746.

Fluctuations of disease, § 747.

Restoration of responsibility corre-
sponds with progress of recovery,
§ 748.

Remarks of Dr. Rush on this topic, §
749.

Mania frequently periodical, § 750.

Instance given by Morel, § 751 .

Law recog-
nizes possi-
bility of
lucid inter-
vals when
proved.

§ 744. So far as concerns the legal relations of this topic, it has
been shown^ that the law recognizes the possibility of
lucid intervals in insanity (always, however, to be posi-
tively and affirmatively shown), during which the patient
is to be viewed as capable, when acting independently,
of certain business and testamentary acts, and of assum-
ing at least a modified penal responsibility. It must be kept in
mind, however, that by many eminent psychological physicians the
possibility of truly lucid intervals is denied.

§ 745. As a leading authority of this school may be mentioned
Renaudin, from whose argument the following is condensed : —

Lucid interval is the name ordinarily given to the condition in
Nature of which the insane person is placed at the end of a strong
vais • Re-"^' delirious excitement, or when he awakes from a profound

naudin. stupor.

The prevalent tendency is to assert the existence of a lucid inter-
val when delirious ideas no longer manifest themselves, and when
the insane person shows himself accessible to other pre-occupations,
and thus appears to enjoy the full amount of moral liberty allowed
to him.

It has been already said that the approach of insanity is rarely
sudden, and that, being based in some respect upon a natural or

Supra, §§ 61-64.

642

LUCID INTERVALS. [§ 745.

acquired predisposition, it is preceded by a period of incubation,
that paves the way for a manifestation of the disorder often long
before its actual appearance. When a retrospective examination
of the antecedents of the disease is made, a proof is found of the
latent advances which insanity makes.

But under this apparent reason is concealed a disorder which
makes a sensible progression every day. Irritability is developed;
the regimen is irregular ; the afiective sentiments are changed or
perverted ; everything has become an object of resistance ; deli-
rious convictions are organized upon perceptive errors every day
more numerous ; and finally insanity shows itself in a critical ex-
citement, the more decided as the lesion of sensibility has become
more complete, and as the incubation is marked by a more or less
concentrated struggle. The patient is then isolated ; irritating
causes are removed, and immediately the over-excitement dimi-
nishes; a calmness succeeds. This transient remission, however,
ceases as soon as the unhealthy influence regains its empire, and
we then see that that which was called a lucid interval was, in fact,
but a transient remission.

Continuity is essentially the characteristic of monomania and
lypomania. Either the insane person, by a convalescence, advances
to a complete cure, or he still remains affected with the original
type. Every intermediate situation is inadmissible, except when
an accidental affection, causing a kind of metastasis, for the moment
suspends or masks the madness. Whenever it is not a true crisis,
it only causes a fleeting remission of the symptoms rather than of
the pathological condition ; and the physician assumes a serious
responsibility when, simply on the face of this apparent calm, he
conceives the possibility of the patient's return to his family,
where but too soon the causes will be found reunited that restore
to insanity all its intensity. It is in not sufficiently resisting the
desires of friends, that the physician paves the way for these re-
turns, which are less relapses than the recrudescence of an uncured
pathological state.

But though, in an absolute diagnostic point of view, we reject
the lucid interval — though, when the existence of mental unsound-
ness has been once shown, we do not admit that the remissions
diminish irresponsibility, — we still think that the deranged can
perform certain acts with comparative intelligence, and can even

643

§ 745.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

exercise discretion, provided that he is placed under the influence
of certain protecting conditions. The regulating discipline of an
asylum tends greatly to this result, and therefore it is not astonish-
ing if insane patients can perform certain civil acts of a simple char-
acter, and may consent to a division of property, or even authorize
a marriage. The legality of the act is essentially subordinate to a
previous appreciation of the extent of the delirium at the time, and
the relations existing between the action and the delirious concep-
tion. So, though not admitting the existence of a lucid interval,
we still believe that the madman may be placed in a situation that
permits him to appreciate the action demanded of him. In a
criminal point of view, this distinction cannot be established, since
the action is a logical consequence of the madness ; and daily ob-
servation teaches us that it is during these moments of apparent
sanity that the maniac meditates and prepares the most dangerous
projects, as much against himself as against others. The ingenious
combination of means that the lypomaniac uses in order to obtain
his object is urged in vain as proof of lucidity, since the delirious
conceptions, whilst rendering the premises false, are far from
always deranging the logical chain of the other intellectual ope-
rations. According to his own conceptions, the lypomaniac is an
oppressed person who conspires against his enemies, and as he is the
most feeble, he calls cunning to the aid of his legitimate means of
defence.

In the maniac, especially in the paroxysm, we observe a dis-
ordered agitation, accompanied with such an amount of incoherence
that the afi'ected person appears to be rather the sport of some
strange motive power than the originator of this extreme mobility.
There are times when even this storm is dissipated as if by enchant-
ment. Dissimulation becomes possible for a certain time ; the
delirium is in some degree suspended, and Ave may be led to sup-
pose a spontaneous return to reason. How often have we seen
maniacs cease to rave during the questioning of a judge, and im-
mediately afterwards recommence their course of wanderings.

The more vivid the excitement is, the more considerable is the
expenditure of the vital forces ; so that when it has lasted a certain
time, a period of prostration arrives ; but, allowing a remission of
some somatic symptoms, still the incoherence of ideas is persistent
with other symptoms. Sometimes the transition is rapid ; and
644

LUCID INTERVALS. [§ 745.

then, above all, is it necessary to attribute the situation to its true
causes, in order not to expose the examiner to an error of diagnosis.

Periodicity is generally observed in mania ; and it is then that
insanity of actions must be distinguished from insanity of ideas.
Though often united, still they are sometimes isolated from each
other, or follow one another. It is on this account that the most
extravagant acts sometimes correspond with a certain intellectual
lucidity, which at the first glance may impose upon us ; and it is
then that we observe persons thus insane justify their actions by
the most specious reasonings. We must not, however, take this
intellectual waking for a lucid interval ; for, although masked, the
delirium still continues.

In other cases, the madness is less intense. All excitement has
disappeared, and the insane person answers all our questions so
reasonably as to lead us to infer the existence of a lucid interval ;
but the illusion is soon destroyed when, in pushing our examina-
tion, we weary him with questions : he becomes agitated ; loses the
thread of his ideas ; becomes more and more incoherent, and so
proves to us that he has had what scarcely might be called a transi-
tory remission.

There are cases where the periodicity appears more determined,
and where the conduct of the patient betrays no sign of the insanity
which he formerly manifested. The lucid interval can perhaps be
sometimes admitted under these circumstances ; but it is still neces-
sary to exercise some caution in regard to the value of these ap-
pearances. If the patient denies his situation ; if he refuses to
acknowledge the principal acts which have characterized his par-
oxysm ; if he seeks to attribute them to some foreign cause, it is a
proof that the reason is not sound, and that a paroxysm is always
imminent ; and lucidity cannot be admitted, since errors of percep-
tion and judgment still exist. This observation especially applies
to that kind of mania in which excessive irritability plays the prin-
cipal part ; where the remissions are irregular, and the paroxysms
are shown under the influence of the slightest cause. We cannot,
then, consider this momentary repose of a permanent effect which
is always ready to break out, as a lucid interval. We might say
as much of the period of prostration following a period of strong
excitement.

When periodicity is complete, it is recognized at first by the

645

§ 745.] MENTAL UNSOUNDNESS CONSIDERED PSTCHOLOaiCALLT.

appearance of the paroxysm, -which has, in some measure, a critical
termination. The lucid interval can then be admitted, if there is a
complete contrast between the two situations, if the patient appre-
ciates them, and if the manifestation of each fit is shown by an
approach which is always regular, and which is always produced
under the influence of the same causes. It is, if we can thus ex-
press ourselves, a momentary cure, which is prolonged for a longer
or shorter period of time, and which often finishes by becoming a
complete one.

Finally, when the affection passes to the chroiiic state, the patient
raves less, because excitement fails him, and also because his will
is in want of a recrulatino; force. We cannot consider this as a
lucid interval where the patient is unable to act except when
directed by another's mind. When mania passes into dementia,
the transition is sometimes shoAvn by an apparent reawakening of
reason, which is, as it were, its last glimmer. Generally it is the
mobility of maniacs which is most favorable to the inferences which
impose upon the superficial observer so as to cause him to admit
the existence of a lucid interval.

The stimulated attention of these patients fixes, for a moment,
this mobility, directs cunning towards the accomplishment of a
project, where a personality is in play, and we are often surprised
with the address shown in organizing a plan of escape. But, in
spite of this incidental derivation, the maniacal temperament still
remains the same, unless, indeed, this transitory action of the mind
should become a crisis.

Dementia, where the psychico-somatic existence is gradually
extinguished, is a ruin in which a trace of a better period is some-
times found. If, occasionally, remembrances of the past show
themselves, this apparent lucid interval is no more than a retro-
spective reasoning without actual application. When, instead of
being the termination of the other forms, dementia is primitive or
idiopathic, the lucid intervals can be sufficiently clearly drawn, and
the diagnosis does not present as many difficulties as in the other
forms. In fact, the demented cannot dissimulate ; since, to do this,
a reactive power would be necessary, which in him is entirely
wanting. He cannot conceal his incapacity under the mask of an
energy whose absence is the principal feature of his disease. More
submissive than others to somatic influences, he is sometimes a
646

LUCID INTERVALS. [§ 746.

prey to an almost maniacal excitement ; but if this is not critical, it
forms an expenditure of power resulting in pure loss, and making
one more step in this period of prostration. In a word, if the man
lives for a moment in the past, he is as nothing in the present ; and
it is under privilege of this restriction that a lucid interval, pro-
voked by some foreign stimulant, but without root in an exhausted
moral system, can be admitted.

Hence we see that the lucid interval is of much rarer occurrence
in mental unsoundness than is generally thought. It is in mania
that the periodicity of regular paroxysms permits us to admit it ;
but then, also, it is still necessary to guard against being imposed
upon by a remission of excitement which is not that of the frenzied
condition.^

§ 746. The following suggestions are given by Ellinger, and
repeated by Schtirmayer. As a general thing, there is <, ^
no recovery from mental unsoundness which has been tions of

. . . Elling-er

attended with permanent and general delusion : in the and SchUr-
other forms such recovery sometimes, though very rarely, ^^y^""-
takes place suddenly, the consequence of strong excitement, as a
sudden outburst of rage, or even in sleep, without any preceding
physical or moral change. Its general development, however, is
slow, being marked with a gradual lessening of the effective irrita-
tions, with an increased coherency and consequentiality of thought,
with the return of the natural inclinations and appetites, of sleep
and nourishment, and with a disappearance of the physical anoma-
lies. Sometimes, however, it advances with a more fluctuating
step, agitated as it were with mental tides, the flood of each of
which, however, falls below the high-water mark of its predecessor,
while each ebb more and more nearly approaches the line of sanity.
To constitute a recovery, the patient must at least have regained
the reason which he enjoyed before the appearance of the disease :
he must have reacquired a taste for his former occupation, must
again display his former inclinations and points of interest, must
understand Avhat he remembers of his disease when assisted by
explanations, must speak of it as of something to which he is now
superior, must clearly see the erroneous nature of the delusions

' See Etudes Physio-Somatiques sur I'Alienation Mentale, par L. E. F. Re-
naadin, chap. ix. p. 522. Paris, 1854.

647

§ 747.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

under which he labored, and must be really contented and internally
at peace. But if, on the other hand, the former character of the
disease has only disappeared in part ; if the old insane grudge
against one person or another is manifested ; if there is a smothered
rage, or aversion to persons or things formerly cherished ; if the
alleged convalescent refuses to acknowledge his disease in general
or in regard to particular points ; if his conduct is marked by un-
natural irritability, suspicion, or boisterous and immoderate joy, or
by other anomalous features, a perfect recovery has not taken
place, although, in point of intelligence, formal and substantial, not
the slightest anomaly is perceptible.^

§ 747. Where the patient's recovery from a mental disorder is
not clearly established, it may be doubted whether an
tion of alleged criminal act was committed under circumstances

involving the full responsibility of the agent. Whether
the malady was of long or short duration, whether it was more or
less intense, is here of no decisive import, and of equally little
moment is the apparent reflection and preparation with which the
act may have been committed.

The different kinds of improvement or interruption in cases of
unsoundness of mind, present various features, which vary in accord-
ance with the duration and degree of abatement.

1. Intervallum lueidum, with a restoration of consciousness in
general and of insight into the past and present, but without entire
clearness, and with a continuance of a more, though not entirely
subdued temperament. The patient is not yet the same as he was
before the disease overtook him. If he was, he would have to be
regarded as restored to health, and there would, in its strict mean-
ing, be no question as to a lucid interval.

2. Remission differs from a lucid interval only in degree, being
generally attended with a subsidence of the external manifestations
of the disease, not sufficient, however, to be mistaken for recovery.

3. Alternation is the term given to change from one form of
mental unsoundness to another, particularly from depression to
mania and the converse, not however from psychical to bodily, or
from bodily to psychical manifestations. Where for instance the
individual has long suffered from morbid depression or elation of

' Compare Ellinger, p. 169. Schiirmayer, § 573.

648

LUCID INTERVALS. [§ 749.

spirits, this may gradually decrease and give place to an apparent
return of health, which, however, does not last long, but sooner or
later lapses into the opposite condition, so that depression turns into
mania, and mania into depression.

4. Intermission^ when the disease recurs at more or less regular
periods, and the disease presents no anomalous symptoms.

§ 748. The restoration of moral responsibility progresses in cor-
respondence with the progress of recovery. In passing. Restoration
therefore, upon a given case, regard should be had, not ^[il'^^y^OT-^'

only to the individual circumstances, but also to the responds
. , . (. . with pro-

time intervenmg between the cessation ot patent in- gress of

sanity and the commission of the offence.^

§ 749. On this topic Dr. Rush thus speaks : " The longer the

intervals between the paroxysms of madness, the more

. -r» • • ii Remarks of

complete is the restoration to reason. Kemissions rather Dr. Rush
than intermissions take place when the intervals are of ^^^^^^^
short duration, and these distinguish it from febrile de-
lirium in which intermissions more generally occur. In many cases
everything is remembered that passes under the notice of the patient
during a paroxysm of general madness, but in those cases where the
memory is diseased as well as the understanding, nothing is recol-
lected. I attended a lady in the month of October, 1802, who had
crossed the Atlantic Ocean during a paroxysm of derangement,
without recollecting a single circumstance of her voyage any more
than if she had passed the whole time in sleep. Sometimes every-
thing is forgotten in the interval of a paroxysm, but recollected in a
succeeding paroxysm. I once attended the daughter of a British
officer who had been educated in the habits of gay life, who was
married to a Methodist minister. In her paroxysms of madness,
she resumed her gay habits, spoke French and ridiculed the tenets
and practices of the sect to which she belonged. In the intervals
of her fits, she renounced her gay habits, became zealously devoted
to the religious principles and ceremonies of the Methodists, and
forgot everything she did and said during her fits of insanity. A
deranged sailor, some years ago, in the Pennsylvania Hospital,
fancied himself to be an admiral, and walked and commanded with
all the dignity and authority that are connected with that high rank

> Schiirmayer, Gericht. Med. § 574.

649

§ 751.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

in the navy. He was cured and discharged ; Ms disease some time
afterwards returned, and with all the actions of an admiral which
he assumed and imitated in his former paroxysm. It is remarkable
that some persons when deranged talk rationally, but act irration-
ally, while others act rationally and talk irrationally. We had a
sailor some years ago in our hospital, who spent a whole year in
building and rigging a small ship in his cell. Every part of it was
formed by a mind apparently in a sound state. During the whole
of the year in which he was employed in this work, he spoke not a
word. In bringing his ship out of his cell, a part of it was broken.
He immediately spoke and became violently deranged soon after-
wards. Again, some madmen talk rationally and write irrationally ;
but it is more common for them to utter a few connected sentences
in conversation, but not to be able to connect two correct sentences
together in a letter. Of this I have known many instances in our
hospital."^

§ 750. Mania frequently assumes a type in which the periods of
-. . . return and of cessation are marked with the greatest

Mama ire- _ _ ...

quentiy exactness and regularity .^ Medicus, in his history of
periodical diseases, ^ tells us of a girl who was subject
to a delirium which came on every evening at exactly the same
hour, and lasted three hours and a half. Of two women attacked
with periodical madness, one was deranged nine days in each month,
and the other two days.*

§ 751. Morel (1836)^ tells us of a lady who for a number of
^ , years was afflicted as follows: When enjoying the full

Instance •' ^ , . .

given by possession of her faculties, and with no other premoni-

IMorcl

tion than that of peculiar health, and of augmented de-
sire to leave the asylum in which she was confined, she would fall
into a sleep marked by terror (cauchemar) and excitement. She
would soon lift herself up, and, with cries of horror, spring out of
bed. The fit thus began, and then ran through its course. Her
face would be distorted, she would refuse nourishment, beat against
the wall, and bite and tear, in her agony, whatever came in her

• Rush on the Mind, pp. 162, 163, ■• See also Henke's Zeitschr. 13 Bd.

164. sec. 159.

2 Siebold, Gericht. Med. § 217. . « Traite de la Med. Leg., etc., p. 479.

3 Kailsr. 1764.

650

LUCID INTERVALS. [§ 752.

way. About the twenty -first day from the beginning of the attack,
relief would begin, and she would fall into a stupor, and then gradu-
ally return to sound reason. This lucid interval would last about
three weeks, during which she would be in all respects refined and
intelligent. This condition has lasted thirteen years, with no other
permanent change than that of perhaps a slight general weakening
of intelligence.

§ 752. Dr. Liman, whose great experience, as well as eminence,
as a psychological physician, has been already frequently noticed,
states^ that practically, so far as concerns the German criminal
courts, the question of " lucid intervals" comes up very rarely for
adjudication. "At least," he says, " among the hundreds of cases
as to which I have given opinions, there was not one in which the
existence of a ' lucid interval' was the subject of contest. In penal
cases the defence goes beyond this, maintaining the existence of
actual derangement at the time of the act, or assuming, from some
prior mental malady, that the defendant at the time of the act was
of unsound mind."

1 Liman's Casper, 1871, p. 618.

651

§ 753.] 'mental unsoundness considered psychologically.

CHAPTER X.

TREATMENT OF INSANE CRIMINALS.

Importance of issue, § 753.

I. Retribution.

Confinement necessary as retribution,
§ 754.

II. Prevention.
And also for prevention, § 763.

III. Example.
And also for example, § 765.

IV. Reform.
And so for reform, § 766.

§ 753. The enlargement of the range of insane irresponsibility
Importance "^hich the preceding sections recognize, makes the sub-
of issue. jggj. Qf ^-j^Q subsequent treatment of the insane offender
of momentous importance. Even if we adopt the severest legal
tests, yet when a case occurs of an acquittal on ground of insanity,
as it sometimes must on the most stringent principles, the offender,
who in this case, on the law's own assumption, is a mere " animal,"
should be no more permitted to range the streets than should a mad
dog or a mad bull. But in point of fact, there are a myriad of
phases of mental unsoundness, none of which are consistent with
entire responsibility, and yet each of which has its distinct degree
of moral culpability attached to it. Rare, indeed, are the instances,
where there is not a consciousness of guilt, which, though distorted
or faint, is, nevertheless, appreciable. Still rarer are the cases of
acquittal in which the insanity of the perpetrator is so abhorrent as
to exclude it from the range of imitation by those who may desire
to commit crime with impunity. And if these considerations be
thrown aside, there remains the fact that insane crime becomes epi-
demic when it becomes heroic ; and that the only way to divest it
of this quality, is to subject it to that wholesome but homely dis-
cipline which strips it of its sentimentality, and, at the same time,
destroys its capacity for mischief. In this view it is recommended
that wherever such provision does not already exist, there should
be a separate penitentiary establishment for insane offenders, where
652

TREATMENT OF INSANE CRIMINALS.

[§ 754.

they may continue to be confined, under the severest discipline con-
sistent with health, until it appear, on evidence taken upon due
notice to the prosecuting authorities, that the patient is entirely
sane.

Confine-
ment neces-
sarj' as re-
tribution.

I. RETRIBUTION.

§ 754. The question here depends on that of guilt. Was the
offender in any sense a moral agent in the act com-
plained of ? The answer presupposed by the present in-
quiry, viz., that of the relations of a person judged irre-
sponsible on account of insanity, is, that he was not.
And in a strict technical sense, this is undoubtedly true. The in-
quiry, however, may be pushed farther back, and here the case of
delirium tremens may be taken as an illustration.^ Delii-ium
tremens, even on the most stringent principles, exonerates its sub-
ject from the penal consequences of a crime committed under its
direct influence. And yet it is clear, first, that delirium tremens
is the result of a prior vicious indulgence ; second, that if the
patient be permitted to wander about when the delirium continues,
he will do further mischief ; and, third, that if he escape with entire
impunity, the example will be likely to be followed as a pretext, if
not caught as a contagion. And under these circumstances what is
to be done ? It is plain that some species of confinement must be
resorted to ; and that if such a method of discipline be applied, it
will be, in a moral point of view, thoroughly justified by the delin-
quency which was the voluntary cause of the diseased mental con-
dition under which the crime was committed.^

' This question has already been
touched upon, and the authorities
bearing upon it have been noticed.
See supra, § 202. In opposition to the
views expressed in the text will be
found Mr. M. B. Sampson's "Criminal
Jurisprudence considered in relation
to cerebral organization." London,
1843.

2 In the eighth edition of my work on
Criminal Law, published in 1880, §§ 1
el seq., I endeavored to show that penal
discipline was to be primarily based on
retributive justice; and I argued at

length that to rest punishment pri-
marily on the grounds of either pre-
vention or of reformation was (1) to
invest the state with despotic preroga-
tives ; (2) to limit punishment to the
cases where prevention or reformation
could be worked ; and (.3) to defeat the
very object in view, since so far from
unjust punishment (and if the condi-
tion of justice be imposed, then the
theory of prevention or of reformation
as the primary object is abandoned)
preventing crime and producing refor-
mation, it would, in 2)roportiou to the

653

§ 756.] MENTAL "UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

§ 755. What has just been said of delirium tremens applies with
greater or less exactness to all other cases of mental unsoundness.
Insanity, which is not congenital, or the result of accident or old
age, is in most cases the result of causes which the patient himself
might have averted if he had chosen.^ And particularly is this the
case with that very species of mental unsoundness — that of mono-
mania, or moral insanity — which is the cause of the greatest diffi-
culty in the present connection. This is well stated by Dr. Barlow,
in his essay on this topic : —

§ 756. " I have said that mental derangement and madness are
different things ; thus, a person may fancy he sees others around
him who have no existence, as in the well-known cases of Nicholai,
of Berlin, and Dr. Bostock. This is a certain degree of mental
derangement while it lasts ; but as both soon satisfied themselves
that these personages were merely the creation of a morbid physi-
cal state, they were not mad. A man of less resolution would have
shrunk from the labor of convincing himself that he was fooled by
his senses, and would have insisted that the figures were real, and
then he would have been mad. Of these cases Dr. Connolly very
justly remarks : ' Let any one reflect how Nicholai preserved his
reason under such visionary and auditory delusions for so many
months ; and why the English physiologist, though visited with the
images which are so well known to be familiar with mad people,
never lost the use of his excellent understanding. The ready
answer will be, they never believed in their real existence. But
why did they not ? And why does the madman believe in their
real existence ? The evidence of both is the same, the plain evi-

extentof its infliction, engender towards of the ablest publicists and jurists of
the government feelings of hatred and this century, and Brinz, one of the
contempt by which the good effect of most authoritative commentators,
penal discipline would be destroyed. Making retributive justice the primary
The only way, in fact, as I urged, to object of punishment is the best way,
make punishment preventive and re- as is elsewhere shown, to secure re-
formatory, is to make it just. In a form and pn^vention. Unless a pun-
review of my book in the Kritische ishment is in itself just, it will neither
Vierteljahreschri/t fur Gesetzgebung und reform the criminal nor prevent fur-
Rechtsenssenschaft, for 1881, p. 274, the ther crime. Instead of repressing and
position taken by me is declared to be in controlling, it will exasperate and
accordance with the views of the editors stimulate to fresh lawbreaking.
of that paper, among whom at the time ' See supra, §§ 115, 118, 403, where
were Bluntschli (since deceased), one this subject is discussed.

654

TREATMENT OP INSANE CRIMINALS. [§ 757.

dence of sense. The explanation must be this. The printer of
Berlin and the physician in London retained the power of com-
parison : they compared the visual objects of delusion with the
impressions of other senses and the perceptions of other persons,
and became convinced of their unreality. ' This is exactly what
madmen cannot do. One form of madness consists in this very
illusion of sense, but it is conjoined with the loss or defect of the
comparing power, and the madman concludes that what is only an
illusion is a reality. But the illusion is not the madness.' Thus,
according to the opinion of this very able judge, the affection of the
brain which causes these delusions is not madness, hut the want of
power or resolution to examine them is. Nothing, then, but an ex-
tent of disease which destroys at once all possibility of reasoning,
by annihilating or entirely changing the structure of the organ, can
make a man necessarily mad."

§ 757. "A man may labor under a mental delusion, and yet be
a responsible agent ; and, if sanity or insanity be in a great many
instances the consequences of a greater or less resolution in exert-
ing the power of reasoning still possessed, the same kind of motives
which influence a man in common life are still available, though
they may require to be somewhat heightened. It is on this princi-
ple that the treatment of lunatics has been generally conducted.
. Fear, one of the lowest, but also one of the most general of instinc-
tive emotions, has been called in to balance the delusions of sense,
and, excepting in cases where the structural disease is so extensive
as to deprive the man of all power of connecting cause and effect,
it has been found suflScient to curb violence, and enforce a certain
degree of peaceable demeanor towards the attendants. And in this
the insane person differs not from the cultivated man who is left at
liberty, whose self-control rarely amounts to more than the avoid-
ing actions which would have unpleasant consequences to himself.
Suppose an irascible man, incensed by a false report, Avhich, how-
ever, he believes to be true ; he seeks his supposed enemy, and
horsewhips or knocks him down ; he does not assassinate, because
he fears for his own life if he does ; for it is clear that no feeling of
duty has held his hand, or he would not have transgressed the laws
both of God and man by thus revenging himself. The madman has
the false report from his own senses ; wherein do the two differ ?
Neither has employed means within his power to ascertain the

655

§ 758.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

truth, and both are aware that such vengeance is forbidden. I can
see no distinction between them, save that the delusion of sense has,
as a chemist would say, decomposed the character, and shown how
much of the individual's previous conduct was rational, and how
much the result of mere animal instinct. It would be well for the
world if the soi-disant sane were sometimes to ask themselves how
far their sanity would bear this test, and endeavor to acquire that
rational self-command which nothing but the last extremity of cere-
bral disease could unseat. We do not descend from our high rank
with impunity : and, as, when the matter has become organized,
if the process of change occasioned by the vital force be impeded
or arrested, the plant pines away and perishes ; as, after the
organs of locomotion have been superadded, the animal debarred
from the use of them languishes and becomes diseased ; so man, if
he give not full scope to the intellectual force, becomes subject to
evils greater than animals ever know, because his nature is of a
higher order."

§ 758. "Neither do severe injuries from external causes, though,
like paralysis, they might cause a loss of those faculties which con-
nect man with the world about him, necessarily disconnect him with
the world within, so as to place him beyond his own command.

" A case has been communicated to me illustrative of this. A
young lad, who had been carefully instructed in the principles of
religion and virtue by the clergyman of his parish, afterwards went
to sea. When he was about twenty-two, he unfortunately fell from
the mast upon his head on the deck, and the injury to the brain
was such that he was discharged from the service in a state of im-
becility, and sent home to his parish. He was then in possession
of the use of his limbs and hearing ; but articulation was apparently
difficult to him, and collected thought, which should enable him to
speak connectedly, still more so ; his sight, too, was subject to a
delusion which made him imagine he saw gold and silver coin strewed
about on the ground ; which, as was natural, he eagerly endeavored
to pick up. He was now visited by the clergyman who had been
the instructor of his youth, who in kind terms assured him he was
under a false impression, and advised him to give no heed to what
he imagined he saw. The poor young man thanked him, and pro-
mised to do as desired, and for a time abstained from attempting to
pick up the coin, but gradually the delusion became too strong for
656

TREATMENT OF INSANE CRIMINALS. [§ 761.

his resolution, and he recommenced. Yet, after every visit from
his former instructor, he again controlled himself for a time ; and,
if he did not come, anxiously sought him at his own house. He
died in a few months, but during the whole time was mild and sub-
missive, seeming perfectly aware that his mind was disordered ;
and, like a child who distrusts his own power, seeking to throw
himself on the guidance of one whose kindness he remembered, and
whose character he respected. This man was suffering mental de-
rangement from injury of the parts, but was not insane ; for the
faculties left him were rationally exercised.

§ 759. " Cases of this kind have been considered by some as a
peculiar type of insanity. By French authors it is entitled mania
sans delire. Dr. Prichard styles it instinctive madness. I am
inclined, nevertheless, to refer such deranged propensities in some
instances to a peculiar morbid state of sensation, and these will
come under the head we are now considering, consequently the
desire is not irresistible, though strong, for we see that it has been
successfully resisted ; in others I should refer it to the second class,
under the head of ' Inefficiency of intellectual force,' and then it
depends on the resolution of the person so affected whether the
morbid sensation shall be meditated on and indulged, and thus ac-
quire fresh force, or whether, by exciting other sensations, it shall
be weakened and by degrees vanquished.

§ 760. " There is no greater error than to suppose that thinking
about a propensity which ought not to be gratified will conquer it ;
on the contrary, every hour of lonely thought gives it fresh force ;
. but let the man plunge into business that must be attended to, or
even a lighter occupation, so it be an engrossing one ; and do this
resolutely, however irksome it may at first appear, and the very
repose thus given to the diseased part, if there be disease, by throw-
ing the whole stress on other portions of the brain, will assist in
effecting a cure.

§ 761. " When a man has reached mature age without making
any effort to render the brain subservient to the rational will, the
fatigue and even pain consequent on the endeavor to obtain the
mastery over it is such that few have resolution to undergo it volun-
tarily. Thus the man subsides more and more into the animal, an
is at last guided only by those instinctive emotions which belong to
the vital force merely. His passions assume a delirious violence,
VOL. I.— 42 657

§ 761.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

and he is only distinguished from the brute bj the greater skill
with which he pursues their gratification. There is no disease of
brain, but it has been left unexercised and ungoverned till it is as
unmanageable as a limb that has been treated in the same way.

" Toes have been used for writing and other arts which are
usually performed by fingers ; they are capable, therefore, of such
use, but those who have constantly worn shoes cannot direct one
toe separately from the rest, as they can the fingers. Yet with
much trouble this power of directing might be acquired. It is thus
(that the brain, unaccustomed to direction from the intellectual
force, rebels against it, and, if this latter fails to assert its sway, it
may justly be termed inefficient. In a man thus animalized, the
actions differ from those of his more spiritualized fellow men, who
happily are more numerous ; and, when they find no such motive
as tliey would consider a sufficient one for his conduct, they call
him mad, by way of accounting for it. He commits a crime, and a
plea of insanity is set up as a shelter from punishment. I will give
an instance. It is recorded by the elder Pinel : ' An only son,
educated by a silly and indulgent mother, was accustomed to give
way to all his passions without restraint. As he grew up, the
violence of his temper became quite uncontrollable, and he was con-
stantly involved in quarrels and lawsuits. If an animal offended
him, he instantly killed it ; yet, when calm, he was quite reason-
able, managed his large estate with propriety, and was even known
to be beneficent to the poor ; but one day, provoked to rage by a
woman who abused him, he threw her into a well. On his trial, so
many witnesses deposed to the violence of his actions, that he was
condemned to imprisonment in a mad-house.' Yet any choleric
man who does in his rage what he is sorry for afterwards is as
much insane as this man was ; both are under the intiuence of the
vital force. A shock to some nerve of sensation stimulates the
sympathetic system ; the circulation is hurried, and the blood,
flowing more rapidly through the brain, gives an unusual activity
to the motor nerves, the movements are sudden and violent, the
speech hurried, loud, and perhaps incoherent ; but the intellectual
force knows the source of these symptoms, and can curb them by
resolute silence and inaction till the blood again flows at its usual
pace ; if it does not, the man, for a time, is in a state of mania, but
is not the less responsible for having allowed himself to be so.
658

TREATMENT OF INSANE CRIMINALS. [§ 761.

" Let us suppose another case ; the thing is so constantly seen
that every one could quote examples of it. A man unaccustomed
to self-control becomes occupied by one thought ; his ambition has
been disappointed, perhaps, or a lawsuit has plagued him, or he has
been much employed in some engrossing pursuit. Unable to regu-
late his thoughts at will, he finds the one which circumstances have
made habitual recur uncalled for. An effort would dismiss it, for
every one who has studied knows that he has had to dismiss many
an intruding thought, and with some effort, too, if he wished to
make progress in what he has undertaken ; but this individual has
never been accustomed to make any such effort, and he knows not
how to free himself from the subject which thus haunts him. If it
be an unpleasant one, he is wearied and worn by it ; but every day
that it is not driven off, it assumes a greater power, for the part of
the brain thus brought into action is now by habit rendered more
fit for use than any other : he has not resolution enough to free
himself from his tormentor by a determined application to something
else which would require all his attention ; he sits brooding over it,
and, when life has thus become irksome, he strives to terminate his
discomfort by suicide ; yet here is no structural disease, and, if the
man could be persuaded to exert himself, he might be sane. I will
give an instance. The master of a parish workhouse, about thirty
years of age, was subjected frequently to groundless suspicions of
peculation. Being naturally a taciturn, low-spirited man, these
false accusations, which involved his character, and consequently
the maintenance of his family, preyed upon his mind, and a pro-
found melancholy was the result, attended by the usual sympto-
matic derangement of the digestive functions, and a constant appre-
hension that he had done something wrong, he did not know what.
No assurance on the part of those who knew and esteemed him had
any effect, and finally, after some months of melancholy, he at-
tempted to destroy himself, fie was then removed to St. Luke's
Hospital, whence, after a year had elapsed, he was discharged in-
curable. He was now placed in a private receptacle of the insane,
and here suffered all the misery which at that time pauper lunatics
were subjected to. He was visited at this place by a benevolent
man, who, seeing his state, immediately ordered him to be removed
into the gentlemen's apartments, and paid for his maintenance there.
In a few months afterwards he was visited by the clergyman of his

659

§ 762.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

parish, ayIio, on conversing with him, considered him sane. The
man begged to be allowed to rejoin his wife and family, and the
rector, after many difficulties and some threats to the parish autho-
rities, succeeded in setting him free. The man from that time was
able to maintain his family by his trade of shoemaking, for, if ever
a fit of melancholy came over him, a threat from his wife that he
should be sent back to the mad-house was sufficient to engage him
to make an effort to resume his cheerfulness ; and he remained to
old age a sane man. Here the insanity had been merely {neffi-
ciency of the intellectual force. Placed in a situation of compara-
tive ease, his mind had become calm ; the wish to return to his wife
and family, and the hope of it, kept up by the visits of benevolent
friends, did the rest ; for, be it observed, during the whole time he
never felt himself abandoned. The poor and the uneducated are
the classes which most usually suffer from the inefficiency of the
intellectual force ; it is among the higher ranks usually that its
misdirection is a source of insanity. Among these, more distant
objects of pursuit keep the thoughts longer upon the stretch towards
one point ; the organs of mechanical memory are strengthened,
nay, even strained by the habit of learning much by rote, while the
constant supply of learning ready-made leaves no necessity for the
more laborious processes of reasoning and comparison. Hence we
not unfrequently find an elegant scholar, who can readily quote the
w^ords and opinions of others, unable himself to carry on a course of
close argument, or to prove the truth of what he advances. Who-
ever has moved in society knows that it is rare to meet with any
one who can command his thoughts in conversation frequently to
reject all that is not relevant to the subject, so as to keep on the
chain of reasoning unbroken.^

5) 762. " When the mind is thus exercised in remembering the
opinions of others, thus unaccustomed accurately to examine its
own, what wonder is it if it should become prepossessed with some
irrational notion which cannot be removed by reasoning, because
the individual man in his healthiest state has never chosen so
to exercise his mind, or if, when a delusion of sense occurs, he
should choose rather to act upon it as truth, than to examine into
the grounds he has for believing it to be such ? It is a melancholy

« Ibid.
660

TREATMENT OF INSANE CRIMINALS. [§ 762.

fact that a great number of mankind are in this state as regards
the faculties most requisite to self-control, and depend far more on
the accident of good health than the exertion of their own intel-
lectual power for their sanity. I have heard of more than one in-
stance of Jiard livers, as they were termed, who probably, in
consequence of a slight affection of the brain from the unnatural
stimulus of wine long kept up, became possessed with an opinion
that they were slighted by one or more of their friends, and, re-
sisting all reasoning on the subject, ended by destroying them-
selves. Yet they were rational on other matters of importance,
and therefore it is to be concluded that, even on this point, they
were capable of being rational also, had they chosen to make the
exertion. It is recorded of Henri of Bourbon, son of the great
Conde, that at times he imagined himself transformed into a dog,
and would then bark violently. Once this notion seized him while
in the king's presence ; he then felt it needful for him to control
himself, and he did so ; for, though he turned to the window, and
made grimaces as if barking, he made no noise. Had the king's
eye been upon him, it is probable that he would have avoided the
grimaces aiso."^

" The indulgence of violent emotions," observes Dr. Connolly,
" is singularly detrimental to the human understanding, and it is to
be presumed that the unmeasured emotions of insanity are some-
times perpetuated in consequence of the disorder of brain originally
induced by their violence. A man is at first only irritable, but
gives way to his irritability. Whatever temporarily interferes with
any bodily or mental function reproduces the disposition to be
irritated, and circumstances are never wanting to act upon this
disposition till it becomes a disease. The state of the brain, or
part of the brain, which is produced whenever the feeling of irri-
tation is renewed, is more easily induced at each renewal, and
concurs with the moral habit to bring on the paroxysm on every
slight occasion — other vehement emotions and passions aifect the
same disorders of the mind."^

' Ibid. See supra, §§ 115, 188, 403. 2 ibid. See Dr. Hack Tuke's In-
fluence of Mind on the Body.

661

§ 764.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

II. PREVENTION.

§ 763. An eminent American physician tells us, that " no argu-
ment should weigh, for a moment, with a court of justice,
forpreven- in favor of liberating such an individual (one subject to
homicidal mania). The fact that life has been taken
should overbalance all motives to send such person into society
again, while the delusions and estrangements of insanity continue ;
and, we add, not until months, if not years, of peace and freedom
from excitement should have confirmed their entire release from
this dangerous form of disease." " We recently attended," says
the same authority, " an interesting trial on a subject of this nature
in a neighboring county in this state. An habitually peaceful and
worthy man was indicted for the most shocking murder of his wife
with an axe, and a horrible attempt upon the lives of his children
with the same weapon. The facts were not denied, and his only
defence was that of insanity. He was acquitted, principally upon
our testimony as to the fact of his being insane at the time the
murder was committed, of which we have not the slightest doubt ;
but our astonishment was only exceeded by our alarm, when subse-
quently informed that bail had been admitted, and this afflicted b-ut
truly dangerous man Avas permitted to go at large. This ought not
to be so. Science and humanity may interpose for the life of the
homicide, but society should ever be protected from the effects of his
dreadful disease. The lunatic asylum is his proper place ; and it
should be duly prepared for his reception and detention,"^

§ 764. The man who, in an insane impulse, kills one man, is
more than likely, under the same impulse, to kill another. And,
indeed, the several facts of moral mania imply a chronic tendency
to the particular crime. This was agreed on all sides in Hadfield's
case, where the point was first mooted. " For his own sake," said
Lord Kenyon, " and for the sake of society at large, he must not
be discharged, for this is a case which concerns every man of every
station, from the king upon the throne to the beggar at the gate ;
people of both sexes and all ages may, in an unfortunate frantic
hour, fall a sacrifice to this man, who is not under the guidance of
sound reason ; and therefore it is absolutely necessary, for the safety

' Dr. TToodward, cited in 4 Journal of Psychological Medicine, p. 469.

662

TREATMEXT OF INSAXE CRIMINALS. [§ 765.

of society, that he should be properly disposed of, all mercy and
humanity being shown to the unfortunate creature ; but, for the
sake of the community, he must somehow or other be taken care of,
with all the attention and all the relief that can be afforded him."
Hereupon the counsel for the crown and the counsel for the defend-
ant agreed that the safety of the community required that he should
be taken care of. " It is laid down in some books," said the former
(Sir John Mitford, afterwards Lord Redesdale), " that, by the com-
mon law, the judges of every court are competent to direct the con-
finement of a person under such circumstances." " That may be,
Mr. Attorney-General," interposed Ijord Kenyon, "but at present
we can only remand him to the confinement he came from ; but
means will be used to confine him otherwise in a manner much bet-
ter adapted to his situation." It was then suggested by Mr. Gar-
row (afterwards a baron of the exchequer) that " it would be for
the benefit of posterity if the jury would state in their verdict the
grounds upon which they gave it, viz., that they acquit the prisoner
of this charge, he appearing to them to have been under the influ-
ence of insanity at the time the act was committed. There would
then," he added, " be a legal and sufficient reason for his confine-
ment."^ This recommendation was adopted by the jury, who re-
turned a verdict in these terms. Thus originated the form of ver-
dict now commonly returned in cases of this description.

III. EXAMPLE.

§ 765. The recorded cases are numerous in which the supposed
irresponsibility of lunatics has led to the perpetration of

... rni 1 • 55 And also

crime by the insane. " ihey cannot hang him, was for ex-
whispered about in the York Lunatic Asylum, when the ^™^ ^'
firing of York Minster by a supposed lunatic was under considera-
tion ; " he is one of ourselves." And one of the most dangerous
convicts in the Eastern Penitentiary — one laboring under homicidal
mania in its most inveterate shape — was constantly expressing his
disappointment at finding that, notwithstanding his acquittal on the

' Howell's State Trials, vol. xxvii, 1854, pp. 16, 17. See an article in 35
p. 1354 et. seq. Suggestions for the Am. Journ. Ins. p. 182, on Insane Pa-
future Provision of Criinnal Lunatics, tients and their Legal Relations,
by W. Charles Hood, M.D., London,

663

§ 766.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

ground of insanity, he was to be continued in prison. He had, in
fact, supposed himself privileged by his disease to commit this par-
ticular crime. ^ And even taking the strongest case — that of the
man who is possessed by a homicidal mania which equals in in-
tensity the passion of particular classes of dogs for sheep's blood —
we will have strong ground to believe that such an instinct can be
tutored. Monomanias, in fact, are epidemics, and spread precisely
to the degree in which they are invested with sentimental celebrity.
The Leipsic " Maichen-Schander," who, when charged with grati-
fying a morbid sexual impulse by striking lancets in the arms of
such young girls as he might meet in a crowded street, never
exercised this propensity except when it was likely it would be
undetected. Shame and the fear of punishment restrained him
thus far ; but it Avas quite otherwise when he became the object of
a sentimental curiosity, which made him during his trial and im-
prisonment the object of conspicuous attention. The monomania
became an epidemic, and would have continued so had not an igno-
minious punishment been affixed.^

IV. REFORM.^

And so for § 766. To permit a monomaniac to go at large will
reform. ^^ ^^ ^^^^ ^^^^ ^^ ^^^ disease, as well as to supply it with

victims —

' In reference to this case I have the to know what redress he could obtain

following note from Mr. David Paul for the injuries he had unjustly sus-

Brown, who was counsel for the person tained. In conclusion, he stated that

mentioned : — if the law did not furnish redress, he

" You refer, as I suppose, to the would be his own avenger. ' If,' says
case of Wiley Williams, who shot Dr. he, ' I was not insane when I was
Kirkbride. I have some knowledge placed in the asylum, those who put
of that case, tending clearly to show, or those who kept me there deserve
in your language, that ' the recorded death for their cruelty ; and if I was
cases are numerous in which the sup- insane, then, if I kill them, my in-
posed irresponsibility of lunatics has sanity will exempt me from the conse-
led to the perpetration of crime by the quences of crime.' "
insane.'- ^ See articles by Dr. J. G. Fisher,

"Shortly before Williams shot Dr. 25 Am. Journ. Ins. 241, and by Dr.

Kirkbride, I received a letter from the D. S. S. Conant, vol. 2, Trans. N. Y.

lunatic, in which he complained of . Ac. of Med. p. 269.

his sufferings during several months of ^ Qn this topic the reader is referred

confinement at the asylum, expressed to the excellent and careful series of

his delight at his escape, and desired Reports of the Eastern Penitentiary

664

TREATMENT OF INSANE CRIMINALS. [§ 767.

" Mobilitate viget,
Viresque acquiret eundo."

And to nothing does this apply with greater force than that exag-
gerated state of the moral system which has just been discussed.
If the indulgence in passion, even in a healthy mind, tends, as has
been just shown, to derangement, it will readily be seen that
no recovery can be effected while the patient is permitted to run
at large, exposed to all the irritating influences of unguarded
society, and encouraged by his very irresponsibility in a career of
lawless vice.

§ 767. Dr. Mayo thus well illustrates the awkward position of
insane criminals under the present administration of the law : " It
must be confessed that the conditional responsibility which the law,
and, as I think, the reason, of the case attributes to the insane is
not easily applicable in practice, either under lucid intervals, or
under such other phases of the insane state as might seem to justify
it. The law will remain a dead letter, or will be continually ignored
by the sympathies of judges, juries, and, I may add, of medical
witnesses, unless some practical distinction can be arranged Avhich
may enable the responsible insane to undergo some lower degree of
punishment than that inflicted on similar delinquents being of sound
mind. The position of many such persons under capital charges is
at present anomalous. They are acquitted in defiance of the law,
as laid down by the judges respecting M'Naughten's case, because
the punishment at present appertaining to the offence would be too
severe ; and then, instead of being consigned to confinement in a
jail, as a secondary punishment, they are consigned to it in an
asylum as a place simply of detention. This becomes a scene of
severe virtual punishment to some of them, of gratification to vanity
and idleness to others ; those, meanwhile, to whom it is a griev-
ance, as they do not regard it in the light of a punishment, derive
from it none of the preventive effects of punishment or future con-
duct, while the public, for the same reason, find it equally unpro-
ductive of good, as an example to persons of actually diseased

of Pennsylvania,, published in Phila- Physicians and Moral Instructors. See

delphia, to which it is impossible to also The State of Prisons, etc., by E.

make fuller references. Attention may C. Wines, LL.D., Cambridge, 1880.
be specially called to the reports of the

665

§ 769.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

mind, or to that large class of other persons who are drifting into
disease under uncontroRed eccentricity."^

§ 768. It is impossible to carry out the proper disciplinary and
remedial measures in a penitentiary common to the sane and insane.
" I am satisfied of the fact," says Dr. Hood, " that criminal lunatics
are more difficult to manage than other lunatics ; there is more
irritability of temper and general restlessness about them ; they are
cognizant of the offences they have committed, and, being under the
impression that they will never recover their liberty, they are less
disposed to be contented or happy. They are also conscious that
they are separated into and form a distinct class of patients, and
this very circumstance establishes a species of fraternity among
them ; for they are in constant communication with each other, and
their curiosity is naturally excited to ascertain the circumstances
connected with every new arrival. They thus soon become ac-
quainted with each other's history, which is often the cause of much
quarrelling and mutual recrimination ; the better class of patients
are unhappy at being associated with the inferior order — criminals
whose manners and language are habitually of the most revolting
description. Hence I conclude that the fundamental principle upon
which we should proceed, in providing for the safe custody, main-
tenance, and medical care of our criminal lunatics, should be that
of establishing a certain classification among them, founded upon
the degrees or nature of the crimes which they may have committed.
This principle conceded, we have then to consider the expediency or
inexpediency of organizing a state lunatic asylum for their common
reception ; the possibility or impossibility of each county providing
adequate accommodation in existing asylums for its own criminal
lunatics ; and whether arrangements might not be made in prisons,
and houses of correction, for the medical treatment of such prisoners
as may, while undergoing imprisonment or penal servitude, become
insane. "2

§ 769. On the other hand, the confinement of an insane criminal
in an ordinary lunatic asylum is beset with still greater difficulties.
" It is," says Dr. Hood, " not only annoying to other patients, but

' Mayo on Medical Testimony in sion of Criminal Lunatics, by W.
Lunacy, pp. 50-52. Cliarles Hood, M.D. London, 1854,

2 Suggestions for the future provi- pp. 28, 29.

66Q

TREATMENT OF INSANE CRIMINALS.

[§ 770.

greatly disturbs the ordinary discipline of the establishment ; for, be
it observed, lunatics, whether criminal or non-criminal, are capable
of some degree of reasoning ; and their conscious incapacity of
enjoying this faculty to its full extent often recoils painfully upon
their feelings, and becomes, in itself, a source of irritation. In
providing, indeed, for the safe custody and the management of the
insane of all classes, we should proceed upon the same principles as
if we were legislating for professedly sane persons ; because the
mind is never totally eclipsed, there is always some lingering ray
of light which the intact reflection may seize- upon with instinctive
truthfulness."^

V. WHY OUR PRESENT SYSTEM SHOULD BE REMODELLED.

§ 770. If the views taken in the preceding sections be sound ;
if, in the first place, there are inherent difficulties in the way of
making insanity a ground of defence on the trial of a man, who, on
this hypothesis, is psychologically incapable of either tendering or
preparing any such issue ;^ if, in the second place, we must recog-

> Ibid. pp. 27, 28. See The State of
Prisons, etc., by E. C. Wines, LL.D.,
pp. 63, 172, 335. As to insanity ori-
ginating in the discipline, p. 447.

2 The absurdity of our present prac-
tice, in making insanity a personal
defence, to be taken or rejected by the
alleged lunatic in the exercise of a
volition which the very nature of the
defence supposes him incapable of ex-
ercising, is fully exhibited in State v.
Patten, 10 La. Ann. 299 (1855, see R.
V. Pearce, 7 C. & P. 6tJ7).

" The sanity or insanity of the pris-
oner, said the court, is a matter of fact ;
the admissibility of evidence to estab-
lish his insanity, under the circum-
stances detailed in the bill of excep-
tions, is a matter of law, and the only
matter which the constitution autho-
rizes this tribunal to decide.

" The case is so extraordinary in its
circumstances that we are left without
the aid of precedents.

" In support of the ruling of the dis-

trict judge, it has been urged that
every man is presumed to be sane until
the contrary appears, and that a person
on trial for an alleged offence has a
constitutional right to discharge his
counsel at any moment, to repudiate
their action on the spot, and to be heard
by himself; hence the inference is de-
duced that the judge could not have
admitted the evidence, against the pro-
test of the prisoner, without reversing
the ordinary presumption, and pre-
suming insanity.

"In criminal trials, it is important
to keep ever in mind the distinction
between law and fact, between the
functions of a judge and those of a
ji^iry.

" It was for the jury, and the jury
alone, to determine wliether there was
insanity or not, after hearing the evi-
dence and the instructions of the court
as to the principles of law applicable
to the case.

" By receiving the proffered evidence

667

§ 770.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

nize sanity and insanity as pressing into each other gradually at a
line that cannot be judicially defined, each being capable of various

for what it might be worth, the judge
would have decided no question of fact ;
he would merely have told the jury,
' the law permits you to hear and weigh
this evidence ; whether it proves any-
thing it is for you to say.'

"By rejecting it, he deprived the
jury of some of the means of arriving
at an enlightened conclusion upon a
vital point peculiarly within their
province, and in effect decided himself,
and without the aid of all the evidence
within his reach, that the prisoner
was sane.

■' It is idle to say that the legal pre-
sumption, and the prisoner's own de-
clarations, appearance, and conduct on
the trial, established his sanity to the
satisfaction of both judge and jury;
for presumption may be overthrown,
declarations may be unfounded, and
conduct and appearances may be de-
ceitful ; and the prisoner's counsel,
sworn officers of the court, with their
professional character at stake upon
the loyalty of their conduct, alleged
that they stood there prepared to prove,
by what they deemed clear and irresis-
tible testimony, that the accused was
insane at the time of the homicide,
long before, and ever since ; so that
the sole inquiry now is, not whether
they or the court were right as to the
fact of sanity, upon which we can have
no opinion, but whether they should
have been allowed to put the testi-
mony they had at hand before the
jury, to be weighed with the counter
evidence.

"If the prisoner was insane at the
time of the trial, as counsel offered to
prove, he was incompetent to conduct
his own defence unaided, to discharge
his counsel, or to waive a right.

6tj8

"Upon the supposition that the
counsel were mistaken in regard to the
weight of the evidence they wished to
offer, as they may have been, still its
introduction could do the prisoner no
harm, nor could it estop him from any
other defence he might choose to make
on his own account ; neither could it
prejudice the state, for it is to be pre-
sumed that the jury would have given
the testimony its proper weight ; if, on
the other hand, the counsel were not
mistaken as to the legal effect of this
evidence, the consequences of its rejec-
tion would be deplorable indeed.

"The overruling necessity of the
case seems to demand that, whenever a
previous soundness of mind and con-
sequent accountability for his acts are
in question, the rule that he may con-
trol or discharge his counsel, at plea-
sure, should be so far relaxed as to
permit them to offer evidence on those
points, even against his will. Consid-
ering, therefore, that it would be more
in accordance with sound legal princi-
ples, and with the humane spirit which
pervades even the criminal law, to
allow the rejected testimony to go be-
fore the jury, the cause must be re-
manded for that purpose.

" It was said in argument, on behalf
of the state, that the alleged insanity
was, at most, but a monomania upon
another topic, which could not exempt
the prisoner from responsibility for the
homicide.

" The judge will instruct the jury in
regard to the principles of law which
govern this subject, when all the facts
shall have been heard. At present,
the discussion is premature.

"It is therefore ordered, adjudged,
and decreed that the judgment of the

TREATMENT OF INSANE CRIMINALS.

[§ 770.

degrees ;^ if, in the third place, it be right that the present system
of confinement of insane criminals be remodelled, — then it will be-
come necessary for those to whom the work of legislation is com-
mitted to amend the law so as to require the question of insanity to
be determined by a competent tribunal after a conviction of the
fact of guilt. For the following undeniable evils result from the
present system : —

a. A tribunal of at least but secondary competency is charged
with the determination of the most difficult and yet most momentous
question to which human observation can be applied.^

h. A subject is introduced into the question of guilt or innocence,
as to which no fixed judicial rules can be laid down, and which
really concerns only the character and the extent of punishment.

c. We confound by this process the sane convict ; the malignant
insane convict, who requires discipline and is in some degree morally
responsible ; the innocent insane convict ;^ and the lunatic, who is
in confinement but is not charged with crime : for all of whom

court below be reversed, the verdict of
the jury set aside, and the cause re-
mauded for a new trial according to
law."

' See supra, §§ 40—66.

2 Dr. Hood justly remarks : "All
human tribunals are fallible, and how,
when this plea of insanity is raised,
can we unvail the mind of the accused,
and determine where responsibility
ends and irresponsibility begins ? We
may appreciate outward and visible
signs, but we have no mentometer (if I
may be allowed to coin a word) which
will indicate the thoughts that may be
passing through the mind. In medi-
cal jurisprudence the diagnosis be
tween sanity and insanity is, in many
cases, infinitely difficult ; and it is
npon this account that specialists in
this branch of our profession so often
come into collision with members of
the bar, and draw down upon them-
selves occasionally animadversions
from the judges on the bench. There
would be no diflference of opinion be-

tween the two learned professions if
we could arrive at any fixed princi-
ples by which we could explain the
silent operations of the mind ; but this,
so far as insanity is concerned, is as
impossible in law as it is in medicine.
We may adjudicate upon the overt act,
but the motive whicli dictated it will
very often elude the most searching
examination. But this happens con-
tinually in sane as well as in insane
life." — Suggestions for the future Pro-
vision of Criminal Lunatics, by W. C.
Hood, M.D. London, 1854.

And we may add to this the testi-
mony of a great poet on a kindred
point : —

"May it please your Excellency, your
thief looks
Exactly like the rest, or rather better ;
'Tis onlj" at the bar or in the duHgeon
That wise men know your felon by his
features."

'^ See as to distinction between these,
ante, §§ 185-200.

669

§ 770.] MENTAL UNSOUNDNESS CONSIDERED PSYCnOLOGICALLT.

there is in some jurisdictions but oyie common method of discipline
provided, viz., that of the penitentiary ; in others, but two, that of
the penitentiary and of the ordinary lunatic asylum. The result
of this is acquittals in some cases where there should be convictions,
convictions in other cases where there should be acquittals, and in
almost all cases an erroneous system of punishment.

The remedy for these difficulties is one to which we must come
sooner or later, and for which the common law has been from the
beginning ahvays striving, and yet losing from almost its very grasp.
It is to confine the inquiry before the court and jury to the mere
factum of the commission of the offence ; reserving the question of
treatment to be determined by a special commission of experts, to
be appointed for the purpose of examining convicts alleged to be
insane. The proposition to be put by the court to the jury, under
such circumstances, is not, " Was the defendant capable of judging
between right and wrong?" a proposition which no jury can deter-
mine, but, " Did he," as a matter of fact, " commit the specific act
charged?" For whether he committed it as sane or insane, the
result is, if the offence in point of law is indictable, that the safety
of society requires that he should be placed in seclusion for such a
period as will promote the joint ends of personal reformation and
the preservation of the Avell-being of the community at large. If
he be guilty without the palliation of mental infirmity, certainly the
severest penal code — with the single qualification of cases of murder
in the first degree — can ask nothing more than this. If, on the
other hand, he was at the time laboring under mental derangement,
in no other way can the extent of his responsibility be accurately
determined, and the proper degree of discipline adjusted. For this
great question of sanity or insanity can really be only determined
by those to whose daily and hourly care the convict is committed,
and who have thus full opportunity of inquiring into his antecedent
as well as his present condition. " Thus," to adopt the language
of an intelligent commentator,^ " except as regards the curative
course to be adopted, on our view of the case, the subtle line of dis-
tinction which there have been so many abortive attempts to draw,
between criminal and non-criminal lunatics, is of no practical impor-
tance, and the unavailing search, unless as a matter of metaphysical

' 21 London Law Review, 364.

670

TREATMENT OF INSANE CRIMINALS.

[§ 770.

speculation, may be abandoned as unnecessary. In either case,
the person concerned, whether called a lunatic, a criminal lunatic,
or an ordinary criminal, should be so placed as to put it out of his
power to inflict further injury, and to aff"ord the most likely means
for his cure." And thus, also, not only will the sanctions of human
life and property be protected from the recurrence of those monstrous
acquittals, by which, under the plea of insanity, the most dangerous
criminals are suffered to run at large, but the interests of humanity
will be subserved by a proper discipline, as well as a just classifica-
tion, of those whose accountability is diminished or destroyed.^

' See supra, § 200. " I may be asked
what principle I would propound for
the guidance of courts of law in these
cases. I caimot but repeat what I
have already declared to be my con-
viction, that, in every criminal case where
the question of responsihility arises in the
course of judicial inquiry, if it be possi-
ble TO ESTABLISH ANY DEGREE OF POSI-
TIVE INSANITY, IT SHOULD ALWAYS BE
VIEWED AS A VALID PLEA FOR A CON-
SIDERABLE MITIGATION OF PUNISHMENT,
AND AS PRIMA FACIE EVIDENCE IN FAVOR
OP THE PRISONER ; AND IN NO CASE
WHERE INSANITY CLEARLY EXISTS (aVITH-
OUT REGARD TO ITS NATURE AND AMOUNT)
OUGHT THE EXTREME PENALTY OF THE
LAW TO BE INFLICTED.

" What, I may be asked, is my test
of insanity ? I have none. I know of
no unerring, infallible, and safe rule
or standard, applicable to all ca&es.
The only logical and philosophic
mode of procedure in doubtful cases of
mental alienation, is to compare the
mind of the lunatic at the period of his
suspected insanity with its prior natu-
ral and healthy condition : in other
words, to consider the intellect in re-
lation to itself, and to no artificial d,
priori test. Each individual case must
be viewed in its own relations. It is
clear that such is the opinion of tlie
judges, notwithstanding they main-
tained as a test of responsibility a

knowledge of right and wrong. Can
any other conclusion be drawn from the
language used by the judges when pro-
pounding in the house of lords their
view of insanity in connection with
crime ? ' The facts,' they say, ' of each
particular case mustof necessity present
themselves with endless variety and ivith
every shade of difference in each case ; and,
as it is their duty to declare the law
upon each particular case, uj)on facts
proved before them, and after hearing
arguments of counsel thereon, they
deem it at once impracticable, and at the
same time dangerous to the administration
of justice if it were practicable, to attempt
tonmke minute applications of the principles
involved in the answers given by them
to the questions proposed.' This is a
safe, judicious, and philosophic mode
of investigating these painful cases ;
and, if strictly adhered to, the ends of
justice would be secured, and the re-
quirements of science satisfied.

" In considering the question of
modified responsibility in connection
with these cases of alleged insanity,
we should never lose sight of the fact,
that, even if a lunatic be fully exon-
erated and acquitted in consequence of
his state of mind, he is doomed to linger
out the remainder of his miserable ex-
istence in the criminal wards of a i^ub-
lic lunatic asylum.

"To talk of a person escaping the

671

§ 770.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

extreme penalty of the law on the plea
of insanity, as one being subjected to
no kind or degree of punishment, is a
perfect mockery of truth and perver-
sion of language. Suffer no punish-
ment ! He is exposed to the severest
pain and torture of body and mind that
can be inflicted upon a human creature
short of being publicly strangled upon
the gallows. If the fact be doubted,
let a visit be paid to that dreadful den
at Bethlehem Hospital —

'■Regions of sorrow, doleful shades, ivhere

peace
And rest can never dwell, hope never come,
That comes to all ' —

where the criminal portion of the es-
tablishment are confined like wild
beasts in an iron cage !

" Much has been said of the deterring
effects of capital-punishment. I do not
doubt its having some effect in pre-
venting crime ; but I incline to the
opinion that if the real condition of
those confined as criminal lunatics was
well understood (assuming the insane
to be amenable to the fear of punish-
ment), it would act more potently as a
deterring agent than any apprehension
they might feel at the prospect of a
public execution.

" It was the opinion of Beccaria that
the impression made by any punish-
ment was in proportion to its duration,
and not to its intensity. ' Oiir sensi-
bility,' he observes, ' is more readily
and permanently affected by slight but
reiterated attacks than by a violent
but transient affection. For this reason,
the putting of an offender to death
forms a less effectual check to the com-
mission of crimes than the spectacle of
a man kept in a state of confinement,
and employed in hard labor, to make
some reparation, by his exertions, for
the injuries he has inflicted on society.'

"In judicially estimating cases of
crime connected with alleged cond itions

672

of insanity, it is our duty always to
bear in mind, that, if an error be com-
mitted on the side of undue severity,
it never can be remedied.

" No reparation can be made for so
great an injury — for so serious an act
of injustice. If a criminal should be
unjustly acquitted on the plea of in-
sanity (and I admit such cases have
occurred), a degree of injury is un-
doubtedly done to society, and the con-
fidence in the equitable administration
of justice is, to an extent, shaken. But
can a judicial mistake like this for one
moment be compared with the serious
and fatal error of consigning an irre-
sponsible creature to a cruel and igno-
minious death ?

"It is well observed by Bentham
that ' the minimum of punishment is
more clearly marked than its maxi-
mum. What is too little is more clearly
observed than what is too much. What
is not sufiScient is easily seen ; but it
is not possible so exactly to distinguish
an excess. An approximation only can
be obtained. The irregularities in the
force of temptation compel the legisla-
tor to increase his punishments until
they are not merely suflicient to re-
strain the ordinary desires of men, but
also the violence of their desires when
unusually excited. The greatest dan-
ger lies in an error on the minimum
side, because in this case the punish-
ment is inefiicacious ; but this error is
least likely to occur, a slight degi-ee of
attention sufficing for its escape ; and,
when it does exist, it is, at the same
time, clear and manifest, and easy to
be remedied. An error on the maxi-
mum side, on the contrary, is that to
which legislators and men in general
are naturally inclined ; antipathy, or
a want of compassion for individuals
who are represented as dangerous and
vile, pushes them onward to an undue
severity. It is on this side, therefore,
that we should take the most precau-

TREATMENT OP INSANE CRIMINALS.

[§ 770.

tions, as on this side there has "been
shown the greatest disposition to err,"
— Winslow^s Essay on Legal Responsi-
bility/, 15 Am. Journ. of Insanity, p. 191.

See also an interesting essay on
Criminal Insane, Insane Transgress-
ors, and Insane Convicts, by Edward
Jarvis, M.D., of Dorchester, Mass., in
the 13tli volume of the Am. Joiirn. of
Insanity, p. 195. See also Chapters
on Prisons and Prisoners and the Pre-
vention of Crime, Jos. Kingsmill, M.A.
Lond. 1854.

A committee of the New York Senate,
consisting of Messrs. Woodin, Fowler,
and Pitts, made a special report upon
the condition and treatment of the in-
sane of the State, which is printed
in the New York Herald of March 7,
1882.

" The committee visited the luna-
tic asylums of the State, and examined
as witnesses superintendents of asy-
lums, attendants, trustees, managers,
medical experts not connected with
asylums, patients confined therein, the
State Commissioner in Lunacy, and
whoever they thought might be able
to throw light on the matters under
investigation. They reach conclusions
by saying that insanity is a physical
disease — one of the nervous system
not apart from the human nature, but
. to be studied and treated as a part of
a large family of nervous diseases. It
is declared to be most marked and
prevalent the higher the grade of
civilization, but that its increase is
out of all proportion to the increase
of population in highly civilized coun-
tries. In Great Britain it has been
estimated by one of the presidents of
the British Psychological Association
that if insanity were to increase in
England and Wales as it has increased
the last forty years, there would be in
the year 1912 1,250,000 of insane per-
sons. It was estimated that in 1850

VOL. I. — 43

there was in Great Britain about one
lunatic to every 1000 persons. Ac-
cording to the very elaborate report
of the Lunacy Commissioners of Great
Britain in 1880 there was one lunatic
in every 357 persons ; in England and
Wales the year before, one lunatic in
every 360 persons, thus showing an
increase out of proportion to the popu-
lation, not only at long intervals, but
even from year to year. The statistics
of Massachusetts also show an increase
of lunacy out of proportion to the
population. The committee says it is
quite safe to estimate that in New
York there are in and out of asylums
not far from 13,000 lunatics in a poj^u-
lation of only 5,000,000, or about one
to every 384 of the population, the
proportion not dififering essentially
from that shown by the statistics of
England and Scotland."

The report makes the following
points : —

1. Insanity is a nervous disease, to
be treated largely under purely medi-
cal conditions.

2. It is in a great measure an inci-
dent of complex. civilization.

3. Its increase is out of proportion
to the growth of population.

4. It increases more rapidly among
the poor.

5. It has become less and less cura-
ble.

6. Special provision should be made
for the cases of persons " mildly, mod-
erately insane."

7. Nervous diseases collateral to in-
sanity are largely on the increase.

The report closes with the follow-
ing :—

" 8. In our systematic treatment of
the insane in asylums, public and
private, and in our supervision of
asylums, we are in this state very far
behind Great Britain. While there is
no county in tli(; world where physi-

673

§ 770.] MENTAL UNSOUNDNESS CONSIDERED PSTCHOLOGICALLY.

cians are more intelligent than here,
yet there is no great country that is so
far behind in organizing and systema-
tizing the progress that has been made
by individuals in appropriate legisla-
tion, while our physicians are unsur-
passed if not unequalled in scientific
attainments and practical skill and in
hygienic knowledge in the treatment
of nervous diseases, including insanity.
We are behind Europe in not having
a central supervisory lunacy commis-
sion. In England this commission has
existed between thirty and forty years,
and it has in that time wrought many
changes and instituted many valuable
reforms in spite of superintendents
and officers of asylums who at first
were jealous of any interference. The
powers of the commissioners are neces-
sarily comprehensive, but they are
wielded gently yet firmly, and very
successfully. The commission is a
guarantee against profligate expendi-
ture. The commissioners are consulted
in regard to all constructions, altera-
tions, and improvements in asylum
buildings, and in regard to the ap-
pointment of officers. Their reports
each year give elaborate details in
regard to each institution which they
are required to visit. They examine
the records and registers of asylums,
give heed to the letters of patients ad-
dressed to them, see that if possible no
patients are improperly admitted to
asylums or improperly retained in
them. Patients, whether kept in pub-
lic or private asylum, are regularly
visited by them. The system of cen-
tral governmental supervision in Scot-
land seems to be even better than that
of England, in that it is more simple
if not more thorough. The first great
need of our state is the appointment
of a lunacy commission, consisting of
three or more persons specially fitted
for such an important trust, and when

674

such a commission is appointed and
vested with adequate authority by ap-
propriate legislation, every needed re-
form will gradually be developed,
while under the present system, or
rather lack of system, they may in the
future, as in the past, be retarded to
the detriment of taxpayers. The ex-
pense of caring for the insane is annu-
ally increasing. The state has con-
tributed money enough had it been
judiciously expended in construction
to have furnished a well appointed
asylum for each lunatic in the state,
as well as for the estimated increase in
the next twenty years. The fault is
one that cannot now be remedied, but
the future of our state in providing for
the care and treatment of the insane
ought to be wholly exempt from the
follies of the past. Among those who
have given attention to the subject
there is entire unanimity that the
asylums of the future should be more
simple in construction, located upon
economical farms, where patients may
be employed with profit to the state
and immeasurable advantage to them-
selves— less to gratify the esthetic
taste of asylum officials, and more for
the comfort and recovery of the in-
sane. In Europe this reform is already
begun. The chronic and incurable
insane should as far as possible be
kept apart from the acute insane.
The increase of insanity has been to
a great degree among the chronic
insane. Patients of that class do not
need the expensive accommodations
and appliances of a curative hospital.
It is well known that if the insane
who are sent to asylums do not recover
during the first year of treatment, there
is little ground for hope of recovery.
They pass into the class of chronic
insane. Such institutions, for instance,
as the Island Hospital, of New York
city, have no excuse for their existence.

TREATMENT OF IXSANE CRIMINALS.

[§ 770.

The chronic insane in those institu-
tions could be and should be kept
economically and far more comfortably
upon a farm or farms, more or less
remote from the city, where they could
in part at least support themselves by
their labor. Too little heed is given
to the value of labor as a therapeutic
agent in our asylums generally. In
the best asylums of Europe labor is
the rule — nou-labor the exception. Of
541 pauper patients in the Royal Edin-
burg Asylum 28 women and 18 men
only were prevented by their condi-
tion from being profitably employed.
In the West Home of the Eoyal Edin-
burgh Asylum, there were 347 private
and pauper male patients. Of these
254 were profitably employed — 184 in
outdoor work. Employment is not
only profitable but healthful. In the
Willard Asylum every patient, male
and female, in a condition to labor is
systematically employed in some way ;
if not always profitable, in a pecuniary
sense, yet never without great advan-
tage to the patients. On these points
the best authorities are everywhere
agreed, viz., that labor is an invalua-
ble aid in doing away with mechanical
restraint and also with the use of nar-
cotic remedies. If for no other object
than the substantial abolition of me-
chanical and chemical restraint of the
insane, humanity demands that our
asylum authorities make emploj'ment
of patients one of the most prominent
and distinguishing features in their
administration.

"yl humane method demanded. — The
medical officers in many of our asy-
lums and the attendants also under
their influence show a disposition to
resist the introduction of changes and
improvements in asylum management
which observation and experience in
other countries have demonstrated to
be invaluable in the treatment of the

insane. We do not doubt that our
superintendents as a class are men of
ability, conscience, and humanity, but
the pertinacity with which the most
of them resist the introduction of me-
thods which distinguish the asylums
of England, Scotland, and Germany
above all others is not easily accounted
for. The humane advance of Piuel
iu removing chains and other cruel
instruments of restraint from the in-
sane was made in spite of earnest pro-
tests of conscientious men. So, at a
later day, when Connolly ventured a
step further and favored a practical,
absolute non-restraint, English alien-
ists resisted vigorously the methods of
that great reformer and predicted the
most disastrous results and a record
in the management of the insane over
which humanity would blush. But
Connolly's courage was equal to his
convictions, and non-restraint became
the rule in English asylums, and his
humane example has not ceased to
have its influence in other countries.
In Scotland every appearance of re-
straint is being removed — doors are
unlocked, windows are not disfigured
by massive iron bars, almost absolute
freedom is given to inmates.

" T'a/Me of state supervision. — We do
not, of course, recommend any legisla-
tion which shall determine methods of
■ care and treatment, but it is our confi-
dent belief that central state super-
vision will aid much in getting the
officers and attendants out of the rut
which long-continued service and habit
have formed, and, what is of prime
importance, will tend to allay the
rapidly growing distrust among the
people by afl"ording just assurance that
those who are so unfortunate as to lose
their reason are treated economically,
scientifically, and humanely. It has
been stated by competent persons and
is believed that at least $2,000,000

675

§ 770.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

could have been saved to the state in
the last twenty years had there been
intelligent and economical state super-
vision over building of asylums, and
that without any sacrifice of the com-
fort of the patients. The committee
think it is unwise to authorize the
establishment of small local asylums
for the care of the insane, as in almost
every case it must happen that what
the taxpayer saves in expense is more
than lost to the patient in a lower
standard of care.

"The commission — the creation of
which we recommend — should be given

676

ample powers to look after the inter-
ests of the state in the matter of ex-
penditure and to protect the patient
in the matter of physical care, with
full powers to redress all grievances
and remedy whatever wrong they may
discover."

See, in this connection, an interest-
ing and able pamphlet entitled Some
Remarks on Crime-Cause, by the Hon.
Richard Vaux (Phila. 1879), originally
printed in the Report of the Secretary
of Internal Affairs of Pennsylvania for
1875-6.

PSYCHICAL INDICATIONS.

CHAPTER XI.

PSYCHICAL INDICATIONS.

Importance of psychical indications, §
771.

1. Prior to Crime.
1. Preparations.

Inference from as indications of guilt,

§ 773.
Palmer's case, § 774.

2. Intimations.

Direct belong to ruder states of society,
§775.

Indirect the more significant in civil-
ized life, § 776.

So of precautions, § 777.

Significance of prophetic- intimations,
§ 778.

Superstitious tendency to forewarn, §
779.

3. Overacting.

Suspiciousness of sudden accessions of
friendship, § 780.

II. At Crime.
1. Incoherence.
Conspicuousness of crime, § 781.
Impossibility of perfect execution, §

782.
Zwanziger's case, § 783.
Fauntleroy's case, § 784.
Crowninshield's case, § 785.
Tichborne case, § 786.
Lefroy's case, § 786rt.

2. Self -overreaching .
Inference from excessive precautions,

§787.
From life insurance, § 787 a.

III. After Crime.
1. Convulsive confessions.
Confessions may be instinctive, § 788.
When in delirium or dreams, § 789.
From callousness, § 790.
Cautions as to confessions under de-
lusion, § 791.

Delusions. Case of the Boorns, § 791 a.

From desire for notoriety, § 792.

From interest, § 793.

From morbid excitement, § 794.

From nervous derangement, § 795.

From alleged supernatural possession,
§796.

Not necessarily insane, § 797.

Retributive element in secret sin, § 798.

From mania, § 799.

From epidemic influence, § 800.

From weariness of life, § 801.

As a mode of suicide, § 802.

Sanity always a condition of reliabil-
ity, § 803.

Corpus delicti to be proved, § 804.

2. Nervous tremor.
Consequent on sense of guilt, § 805.
Peterson's case, § 806.
Webster's case, § 808.
Weston's case, § 809.
Queen Elizabeth, § 810.
Inference from instinctive faltering or
self-inflicted pain, § 811.

3. Morbid propensity to recur to scene
of guilt.
Disclosures thus produced, § 812.
Eugene Aram's case, § 813.

677

§ 771.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

Robinson's case, § 814.
Farrar's case, § 815.

4. Permanent mental wretchedness.
Entire extinction of conscience rare,

§ 816.
Memory permanent, § 817.
Conscience autocratic, § 818.
Illustrations, § 819.
Effect of extraneous circumstances, §

820.
Sadlier's case, § 821.
Distinction between remorse and grief,

§ 822.

Disguised suicide as a recognition of
public sense of right, § 823.

5. Animosity among confederates.
Tendency in confederates to disagree,

§ 824.
" Honor among thieves" only during

community of interest, § 825.
Illustrations, § 826.

IV. GE^'EEAL Conclusions.
Conscience part of divine economy, §

830.
Punishment is retributive, § 833.

Importance
of psychical
indications.

its suilt.

§ 771. Mr. Raavlinson, as his motto to the Barapton Lectures
of 1859, takes the following from Aristotle : —

T9 ^iv ya^ dXridd rtdvra avva^si ta vnd^xovva, Tqi 8s -^svSd -taxv Sia^ai'ft

(for with the true all things that exist are in harmony ;

BUT with the false THE TRUE AT ONCE DISAGREES.)

This conflict between the true and the false arises in all cases
where guilt is attempted to be screened by human con-
trivance. The mind involutitarily becomes its own
prosecutor. It drops at each point evidence to prove
Each statement that it makes — each subterfuge to which
it resorts — each pretext it suggests — is a witness that it prepares
and qualifies for admission on trial. In this, and in the univer-
sality of the psychological truth that guilt cannot keep its counsel,
we may find an attribute of divine justice by which crime is made
involuntarily its own avenger. Man cannot conceal the topic of a
great crime, either anticipated or committed. It sometimes leaps
out of him convulsively in dreams ; sometimes a false cunning leads
him to talk about it to know what suspicions may be afloat ; some-
times that sort of madness which impels people to dash themselves
from a high tower forces him to the disclosure. Even his silence
telis against him ; and, when it does not, the tremor of the body
supplies the place of the tremor of the mind. J^or can he keep
peace Avith his associates. There is a disruptive power in con-
sciousness of common guilt, which produces a hatred so demonstra-
tive, that, if it does not supply the proof, it attracts the suspicion
of a great wrong having been done.
678

PSYCHICAL INDICATIONS PRIOR TO CRIME. [§ 774.

I. PRIOR TO CRIME.

1. Preparations}

§ 773. In the preparation for acts of guilt the most astute leave
unguarded points. Poison has to be obtained some- inference
where. For domestic purposes it might be boldly pur- ^'■°™-
chased ; but the poisoner, in a vast majority of cases, is impelled to
a more circuitous course. He buys it to kill vermin, and then
gives a false excuse — as in a case where the prisoner pointed to a
mouse which he said was killed by the poison, when in fact, it
turned out that the mouse was not so killed. He places a loaded
pistol on his person on a pretext which he takes care to announce,
but which turns out in like manner to be false. There is, in almost
every kind of crime, a swelling of the upper soil which shows the
subterranean road which the criminal travelled. It would seem as
if it Avere a germinal element of guilt that it cannot work Avithout
such memorials. Adroit management may lure witnesses away
from the intended spot — the greatest caution may be shown in the
purchasing, the collecting, or the fashioning of instruments — but
still the traces remain, ready to increase the presumption, if not the
positive material for conviction.

§ 774. At the Shrewsbury races, in November, 1856, appeared
two young men, each of whom had large stakes involved paimer's
— in each case those of life and death. Polestar, one of '^'^^®'
the horses entered, belonged to John Parsons Cook ; a sporting
character and spendthrift, and not much besides. He had inherited
a considerable estate, but a large portion of this had gone in dissi-
pation, and now, the result of the race Avas to decide whether the
remnant was to be doubled or destroyed. Watching him pretty
closely, though Avith an otf-hand familiarity Avhich required an ex-
perienced eye to penetrate, Avas William Palmer, a man several
years his senior, whose fortune, Avhich had also been considerable,
Avas noAV entirely gone. The " Chicken" Avas Palmer's horse, and
on this he had ventured enormous bets. But he had a double game.
Ruin, it is true, Avas imminent, but there Avas a method of escape.
He Avas a medical man, and he had discovered the fatal properties
of strychnine — how that it produced a disease scarcely to be dis-

• As to the admissibility of proof of tins class, see Wli. Cr. Ev. 8th od. § 753.

t)79

^ 774.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGIC ALLY.

tinguished from lockjaw — how it could be administered without
exciting the victim's attention — what was the minimum dose neces-
sary to take life, and how, when this dose alone was administered,
the poison was dispersed, leaving no traces behind. He had a book
in which these points were stated, and to make himself certain, he
not only turned down the book at the place, but made a memoran-
dum giving the substance in his note-book. He w"as a man of the
world, and he made himself, without appearing to do so, thoroughly
master not only of Cook's confidence, but of his secrets. He knew
that Cook had a disease which produced sores on the tongue which
might be considered, if talked about in the right light, as the cause
of lockjaw, so he proceeded to tell about them in this light. He
knew how to imitate hand-writing. So he wrote a paper by which
Cook acknowledged himself his debtor in a sum sufficient to absorb
all Cook's effects. " Polestar" won and " Chicken" was beaten.
Palmer, in his careless, sporting way, borrowed Cook's winnings to
pay his losses. Then everything was I'eady to poison Cook, and
the work was done with complete coolness and success. A little
preliminary sickness was induced, during which nothing could be
more kind and yet less officious than Palmer's attentions. It is
true the strychnine had to be bought, but this was done in a circuit-
ous way, and under a false color. Then it had to be administered, but
two medical men, of undoubted probity, were called in, and, as they
recommended pills, it was very easy to substitute pills of strychnine
for pills of rhubard. So Cook was killed, and this so subtly, that
the attending physician gave a certificate of apoplexy. As to the
post-mortem, Palmer knew it would not amount to much, nor did it.
No strychnine was discovered, but here the nerves of Palmer gave
way. He showed an undue fidgetiness while the examinations were
going on. He tried to tamper with the vessels in which the parts
to be examined were placed. Then, also, the note he produced to
show Cook's indebtedness to him was suspected ; and then Cook's
betting book could not be found. This led to Palmer's arrest. The
first medical authorities in England proved that Cook's death came
from strychnine and nothing else. The apothecaries from whom
the strychnine was bought, attracted by the discoveries, identified
Palmer. In a dark passage he had been seen to drop something
into a glass for the sick man, but the passage was not so dark but
that he was observed. Then his note-book turned up, showing how
680

PSYCHICAL INDICATIONS PRIOR TO CRIME. [§ 775.

acquainted he was with the poison. And upon these facts, skilful
as he was, and completely as he had covered up his guilt from the
superficial eye, he was convicted and executed.

2. Intimation %}

§ 775. Intimations are to be tested by the character of the party
from whom they emanate. In the present connection, they may be
divided into three classes.

Direct intimations are the less frequent. The coarse old feudal

baron, over whom there was no law which would inter- t^. , ,

' Direct be-

fore to make a threat defeat itself — whose importance long to

ruder

depended upon the emphasis with which he pursued his states of
enemies — to whose temper deceit was intolerable — ^°"*^ ^'
threatened dashingly, and performed implacably. So the Scotch
clansman followed his hereditary vengeance until the last of the
tribe he hated was extinguished.

Now" in these cases there was neither parsimony nor insincerity
in the threat, and no reserve in the execution. What was said was
meant. It is only, however, in the rudest and most lawless states
of society that we now find this phase o In a community where
there is a justice of the peace, to threaten life is followed by a
binding over to keep the peace ; and such a threat, therefore,
is rarely heard except as a bluster. Civilization, it is true,
has not extracted the venom from homicide, but it has mufiled its
rattle.

There are cases, however, where the rattle is still heard. A
purpose of vengeance may be whispered in a friend's ear. Among
men over whom there is no law, in the mountain slopes or prairie
sweeps to Avhich no jurisdiction except that of the vigilance com-
mittee has reached — among the hunters of the wilderness who
have preceded law, or the wreckers of the coast who have defied
it, or the outcasts of the city who have been rejected by it — in
those cases of domestic outrage where social usage seems to permit
vengeance being taken into private hands — here threats may be
the precursor of deeds. Desperation, also, gives out the same
warning ; and in such cases the Avarning uttered is of real conse-
quence.

• See as to admissibility of evidence of this class, Wh. Cr. Ev. 8tli ed. §§ 756
et seq.

681

§ 776.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

Then, again, a threat -which may be meant merely as bravado
may afterwards become a real and desperate purpose. Provoca-
tion— opportunity — the desire to save the character from the impu-
tation of mere bullying — may stiffen the attempt to frighten into
an attempt to destroy. Or, again, a settled animosity may be
produced, which may lead, though circuitously, to secret mischief.

Taking out these exceptions, however, and assuming the case to
be that of a man of ordinary prudence, where there is no proved
settled purpose of revenge, and in a community where the usual
restraints of the law are applied, it becomes unsafe to connect
threats previously uttered by such a party with a recent homicide.
" The tendency of such a prediction," says Mr. Bentham, "is to
obstruct its own accomplishment. By threatening a man, you put
him upon his guard, and force him to have recourse to such means
of protection as the force of the law, or any extrajudicial powers
which he may have at command, may be capable of affording him."
In the case last put, it is not likely that the one who really accom-
plished a deed which would lead to condign punishment was the
one who publicly threatened it.

The weight to be attached to such threats depends upon the
state of society at the time. In a rude and barbarous community
the assailants who intend violence are apt to threaten it. In a
civilized community, where justice is efficiently administered, the
intention to perform deeds of violence is concealed.

^ 776. In high states of civilization, where direct threats are

J ,. ^ not often heard, the preparations for a crime are much

the more more likely to be found in ambuscades likely to in-
significant .... ..... . . . 1 • 1 1

in civilized veigle the intended victim into a position m which he

^^^^' will more readily fall a prey. "When the massacres of

St. Bartholomew were planned, the Huguenot chiefs were invited

to Paris on the pretence of the wedding between Henry of Navarre

and Margaret of Yalois. " This politeness of the Italian Queen is

very suspicious," said the more wary of them; "she kisses whom

she would betray." But they went, were caressed, and were

massacred.

The Admiral Coligny had been wounded by an assassin under

the pay of the Duke of Guise. He lay helpless on his sick-bed,

when Charles IX., then a boy of only nineteen, but thoroughly

682

PSYCHICAL INDICATIONS PRIOR TO CRIME. [§ 776.

schooled by his malign mother, was announced. The Huguenots
were thoroughly aroused by the attack on the admiral. The pre-
parations for crushing them, however, were not then complete. It
was necessary that they should he quieted and kept together. So
Charles entered into the admiral's chamber, and, throwing his arms
around the aged warrior, said, " Father, you received the wounds,
but 1 the sorrow." Two or three nights afterwards, Coligny,
hacked and helpless as he was, was torn from his bed and cut to
pieces. Then his body was dragged through the streets, and at
last his trunk was kicked about like a foot-ball in the presence and
for the diversion of the young king, who had shortly before em-
braced it. "Had it been the mother," said the survivors, " we
would have had suspicion ; but it was only the boy." Here was
the Medicean mask — the very luxury of artifice in which Catharine
of Medicis enveloped herself when about to commit a crime ; and
yet, from its very excess, it was a premonition. So it is that subtle
guilt, in the very degree to which its subtlety is refined, gives its
own warning, and at all events invokes its own retribution. For
the recoil of St. Bartholomew's night destroyed the House of Valois
far more effectually than did the massacre of the Huguenots.
Charles IX. died only a few years after, of a disease in which
nervous horror, if not remorse, was the prime agent, and so did
men turn from him, that his body was deserted when on its way to
the grave, and was followed to St. Denis by only three private
gentlemen. His brother, Henry III., who succeeded him, was the
last of his race.

Cowardice may work in the same way, from the fear of being
struck back, if a face-to-face blow be attempted. So it Avas with
James I. : —

""Willing to wouud, and yet afraid to strike."

"When he was rolling the execution of the Earl of Somerset as a
sweet morsel in his mouth, he hung about the neck and slabbered
over the face of that unfortunate favorite. It is not that he wanted
to entrap — Somerset was caught already. Nor did he want to
prevent detection, for he afterwards never shrank from the moral
consequence of the deed. It was merely because he was physically
afraid to face a collision.

683

§ 778.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

§ 777. Precautionary intimations are entitled to peculiar weight.^
So of pre- ^f these the following may be taken as illustrations :
cautions. Captain Donellan was tried in Warwick, in 1781, for poi-
soning Sir Theodosius Boughton, on whose estates his wife had a
reversionary interest. The defendant had no doubt long formed a
plan by which the deceased was to be removed. To exclude sus-
picion, the idea was thrown out long in advance that the latter's
health w^as desperate — that speedy death was certain — that his
imprudence was constantly heaping up causes upon causes to pro-
duce it.

When Sir Thomas Overbury was in the tower, and when the
arrangements for his poisoning, under the direction of the Countess
of Somerset, were made, the doctors, whom the countess had in
pay, were careful, long before the poison took effect, to announce
that the patient was very sick, and, indeed, " past all recovery."
It Avas a trick to prevent surprise.

§ 778. Prophetic intimations, though less rare, may indicate the
parties who have been brooding over some projected
canceof crime. Those who approach a crime under the stress,
intima^-^^ either felt or assumed, of a supernatural decree, often
tions. move with the pomp worthy of so grand a mission. The

muttered forebodings of the fanatic precede the fanatic's blow.
The assassinations of John of Leyden, and the assassinations of
Joe Smith, were always ushered in by intimations, more or less
obscure, that the intended victim had fallen under the divine ban.
Nor can we dismiss this as mere hypocrisy. The consciousness,
though only partially sincere, of a supernatural impulse, cannot be
completely repressed. The Greek tragedians felt this when they
made those who meditated, under such an impulse, a deed of blood,
bear witness to their awful mission by their dark forebodings of
misery to him they Avould destroy. So it was that Clytemnestra
stalked over the stage, relating to the sympathetic chorus the
terrors before her eyes and the fate by which she was driven, and
so it was that they ejaculated back their admiring horrors. So it
was with the first Napoleon, with whom this sense of the super-
natural was sometimes master, sometimes creature. He knew how
to use it to overreach others ; but he knew not how to use it with-

I See Wh. Cr. Ev. 8tli ed. §§ 734 et seq.

684

PSYCHICAL INDICATIONS PRIOR TO CRIME. [§ 779.

out its sometimes overreaching himself. In the very face of policy
he could not always conceal within himself the decrees of destiny
with which he supposed himself charged. Thus the death of the
Duke d'Enghien was muttered forth by him long before the fatal
arrest ; and so before sovereign houses ceased to reign came the
intimations of this vice-regent of destiny that the decree was about
to issue. It was not mere threats — it was not ambuscade — it was
the involuntary witness borne against itself by crime acting under
the guise of fate.

§ 779. Among the vulgar these intimations are not infrequent.
Murderers, especially in the lower walks of life, are
frequently found busy for some time previous to the act tiousTen-
in throwing out dark hints, spreading rumors, or utterinor ^'^^^y to

o 5 r o 5 o forewarn.

prophesies relative to the impending fate of their in-
tended victims. It would seem as if the criminal intention could
not be kept secret; that it must in some way be let out. Susannah
Holroyd was convicted, at the Lancaster assizes of 1816, for the
murder of her husband, her son, and the child of another person.
About a month before committing the crime, the prisoner told the
mother of the child that she had had her fortune read, and that,
within six weeks, three funerals would go from her door, namely,
that of her husband, her son, and of the child of the person whom
she was then addressing. And so, on the trial of Zephon, in
Philadelphia, in 1845, it was shown that the prisoner, who was
a negro, had got an old fortune-teller in the neighborhood, of
great authority among the blacks, to prophesy the death of the
deceased.

When there is a family or local superstition, it may be invoked
for the same purpose. Thus Miss Blandy, when her preparations
for poisoning her father were in progress, threw out references to
the supernatural music with which the house was pretended to be
pervaded — music which, according to tradition, betokened a death
in twelve months.

It is in these several classes of intimations, most of them in-
voluntary, that we find another instance of the self-detective power

of guilt.

685

§ 781.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOarCALLY.

3. Overacting.

§ 780. Extraordinary affection is often simulated before a near
relative is removed by poisoning. Thus, a husband is
ness of reconciled to and lives with his wife whom he intends to

accessions dispatch ; and a wife, as in Mrs. Chapman's case, be-
ef friend- comes singularlv demonstrative in her public attentions
ship. o ./ r ^

to her husband. Mary Blandy, at the time her father
was writhing under poisons she had herself administered, heaped on
him attentions so inappropriate to his condition as to become the sub-
ject of suspicion then, and the ingredients of proof afterwards. So
industrious declarations of friendliness and fairness not unfrequently
are thrown out prior to an assassination. The alleged sudden ac-
cess of attention by Mary Queen of Scots to Darnley shortly before
his murder is one of the points, it will be remembered, urged most
strongly against her by Mr. Froude.

II. AT CRIME.

1. Incoherence.

§ 781. " Providence," said Mr. Webster, in his speech in Knapp's
r, . case, " hath so ordained, and doth so govern things, that

Conspicu- ' ' & & 5

ousness of those who break the great law of Heaven by shedding

crime %/ <~j

man's blood seldom succeed in avoiding discovery. Dis-
covery must come sooner or later. A thousand eyes turn at once
to explore every man, every thing, every circumstance, connected
with the time and place ; a thousand ears catch every whisper ; a
thousand excited minds intensely dwell on the scene, shedding all
their light, and ready to kindle the slightest circumstance into a
blaze of discovery."^

1 " The detection of a forgery by the color, and even texture — so that the

paying-teller of the Bank of the Re- thing becomes a unity in his mind, or

public (in 1872) was a remarkable rather to his perception. The smallest

instance of the unconscioixs dexterity variation, therefore, makes a discord,

which habit gives. Tlie check ap- and induces scrutiny. In this case,

peared to be drawn by a well-known they cannot tell what it was that led

house, and was upon the peculiar form him to examine the signature, which,

of blank used by that house. A tel- although it proved a forgery, was

ler's eye learns to connect the usual so closely imitated, that a careful

writing of every dealer with the blank comparison with the genuine hardly

commonly used by him — its shape, justified suspicion. But lie remem-

686

PSYCHICAL INDICATIONS AT CRIME.

[§ 783.

§ 782. While there is on the one hand this concentration of

observation, there is an almost unlimited multiplication

of points to be observed. The criminal stands in the {,j'iitv^of

position of a country which has a coast line of indefinite perfect

execution,
extent, compelled to meet an adversary whose powerful

and vigilant fleet commands the seas. There is this distinction,
however, between the cases. The coast line may be broken with-
out ruin, but not so the line of a criminal's defence. A single false
position in his plans — such, for instance, as the omission to wash
off a blood-stain — the leaving a letter or a. paper disclosing identity,
in the room — the forgetting that snow was on the ground, by which
footprints could be tracked — over-industry in setting up a sham
defence — sudden forgetfulness in answering to a real and not a
feigned name — is destruction. And yet this is the necessity of all
who seek to cover up guilt. They are acting a part which, to be
perfectly acted, requires perfect skill, perfect composure, perfect
foresight, perfect powers of self-transposition. Now we all know
how impossible it is for even the most consummate actor to be true
to an assumed character for an hour, and this under the tension of
the stage. Yet this is required of a criminal constantly, in the
lassitude of home, as well as in the excitement of public observa-
tion, in his chamber as well as in the court-house.

§ 783. Of all the great poisoners, the most stealthy and feline,

bared that, as he took the check in
hand, the paper seemed a little stiffer
than that commonly used by the firm !
So slight are the clues, sometimes, that
lead to the discovery of crimes.

"Rogues are rarely philosophers, or
they would not be rogues. The equi-
librium of things, so nicely adjusted to
universal fair-dealing, is disturbed by
the slightest deviation from right. As,
on strings stretched in every direction,
a thrill passes to the social limit of the
central offending blow, the culprit feels,
although he may be unconscious of the
feeling, that all unseen powers and in-
telligences are in league against him.
By dint of self-control he may bear an
unmoved face ; but his soul is alert

and suspicious, and a whisper, a look,
or a rustle frightens him. No cunning
can effectually evade this law ; the
more artful go a little further, that is
all. It is a curious fact, that in its
operation the expertest thief-taker in
the world is habit — not in great things
necessarily, but just as much in little
things ; not a wise, observing, or
thoughtful man's habit, but even more
commonly a simple man's habit, often
a child's. Something is displaced with-
out ordinary or adequate cause, and
the person whose unconscious habit is
tbus violated looks twice, and the
second look proves too much for the
secrecy of the crime that broke the
slight but charmed thread."

687

§ 784."! MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

Zwanzi- we have been, told, was the widow Zwanziger, known in
gerscabe. }jjg{;Qj.y j^y ^]^q name of her last husband, the Privj-
Councillor Ursinus, of Berlin. Madame' de Brinvilliers was an
enthusiast, who poisoned with a spread and dignity of circumstances
which necessarily invited detection. The widow Zwanziger, on the
other hand, slid softly about from house to house poisoning unob-
trusively. So quiet and hom3-like were her attentions to the
deceased — so deep and yet so well controlled her grief — so com-
pletely her whole deportmemt that of a tender, sober, and yet
undemonstrative friend, that when her lover, who began to be
tired of her — her husband, of whom she began to be tired — her
aunt, whose heir she was — successively sickened and died, she was
the last who would have been suspected of having dispatched them.
Yet this most experienced, self-disciplined, and wary of poisoners —
this actress so consummate that to the end she played the parts of
the lady of fashion, and the sentimental and pietistic poetess, Avith
a perfection that showed no flaw — was careless enough, when en-
gaged in such common game as the poisoning, as if merely to keep
her hand in, of an ordinary man-servant — to leave the arsenic open
in a room where her intended victim, made curious by one or two
abortive operations she had attempted on him, scented it out, car-
ried it to a chemist, and established the fact that it was of the
same character with the poison by which she had seasoned some
prunes she had been giving to him for dessert.

In the same line may be mentioned the case of Mrs. Sherman,
hereafter noticed.^

§ 784. Equally wary and artistic, though in a different line of
Fauntie- g^^^^^? ^as Fauntleroy, perhaps the most complete forger
roy's ease, of modern times. He was subtle, reticent, accomplished,
and imperturbable. In a long course of years, he perfected a sys-
tem of forgery, by means of which he obtained the transfer of
stocks entered in the bank of England, in the names of various per-
sons, to the amount of .£100,000. Such was the thoroughness of the
fictitious accounts and false entries by which his forgeries were
covered up, that his partners and clerks, as well as the bank, were
deceived, and yet, at the very time he was weaving a veil otherwise
impenetrable, he took the extraordinary step — a step unaccounta-

' Infra, § 790.

688

PSYCHICAL INDICATIONS AT CRIME. [§ 785.

ble except on the hypothesis of the innate inability of the mind to
act out with perfection any fabricated part — of keeping a private
diary of his guilt, and executing a paper, signed with his name, and
carefully put away among his vouchers, in which he expressly de-
clared that guilt.

§ 785. Richard Crowninshield, of Salem, Massachusetts, was,
in 1830, a young man of good family and education. Of ciownin-
dark and reserved deportment, quiet and self-possessed, ^^i^id's.
he united a malignity of heart, which made crime natural and
normal to him, with a courage of purpose, a temperance in sensual
indulgence, and a sagacity and adroitness in the choice and in the
use of means, which made crime easy. His tastes and temperance
were such as to cover his tracks with almost impenetrable darkness.
"Although he was often spoken of as a dangerous man, his person
was known to few, for he never walked the streets by daylight.
Among his few associates he was a leader and a despot."

Joseph White, a wealthy merchant, eighty-two years of age, was
found murdered in his bed, in his mansion house, on the mornino- of
the 7th of April, 1830. His servant man rose that morning at six
o'clock, and on going down into the kitchen and opening the shut-
ters of the window, saw that the back window of the east parlor
was open, and that a plank was raised to the window from the back
yard ; he then went into the parlor, but saw no trace of any person
having been there. He went to the apartment of the maid-servant,
and told her, and then went into Mr. White's chamber by its back
door and saw that the door of his chamber leading into the front
entry was open. On approaching the bed he found the bedclothes
turned down, and Mr. White dead ; his countenance pallid, and his
night-clothes and bed drenched in blood. He hastened to the
neighboring houses to make known the event. He and the maid-
servant were the only persons who slept in the house that night,
except Mr. White himself, whose niece Mrs. Beckford, his house-
keeper, was then absent on a visit to her daughter, at Wenham.

The physician and the coroner's jury, who were called to examine
the body, found on it thirteen deep stabs, made as if by a sharp dirk
or poniard, and the appearance of a heavy blow on the left temple,
which had fractured the skull, but not broken the skin. The body
was cold, and appeared to have been lifeless many hours. On
examining the apartments of the house, it did not appear that any
VOL. I.— 44 689

§ 785.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

valuable articles had been taken, or the house ransacked for them ;
there was a package of doubloons in an iron chest in his chamber,
and costly plate in other apartments, none of which was missing.
The first clue obtained to the murder was by the arrest, at New
Bedford, of a man named Hatch, who stated, when under examina-
tion for another offence, that he had heard Crowninshield mutter
intimations of violence towards Mr. White. Soon another thread
was found. Mr. White was childless, and left as his legal repre-
sentative Mrs. Beckford his housekeeper, the only child of a de-
ceased sister, and four nephews and nieces, the children of a de-
ceased brother. He had executed, as was known in the family, a
will by which he left by far the larger portion of his estate to
Stephen White, one of the few children of the testator's brother,
reserving but a small legacy to Mrs. Beckford. A daughter of Mrs.
Beckford married Joseph J. Knapp, Jr., who with his brother,
John Francis Knapp, were young shipmasters of Salem, of respect-
able family, the sons of Joseph J. Knapp, also a shipmaster.
Shortly after the murder, the father received a letter obscurely
intimating that the party writing the letter was possessed of a
secret connected with the murder, for the preservation of which he
demanded a "loan" of three hundred and fifty dollars. This letter
Mr. Knapp was unable to comprehend, and handed it to his son,
Joseph J. Knapp, who returned it to him, saying he might hand it
to a vigilance committee which had been appointed by the citizens
on the subject. This the father did, and it led to the arrest of
Charles Grant, the person writing the letter, who, after some delay,
disclosed the following facts : He (Grant) had been an associate
of R. Crowninshield, Jr., and George Crowninshield ; he had spent
part of the winter at Danvers and Salem, under the name of Carr,
part of which time he had been their guest, concealed in their
father's house in Danvers ; on the 2d of April he saw from the
windows of the house Frank Knapp and a young man named Allen
ride up to the house ; George walked away with Frank, and Richard
with Allen, and on their return, George told Richard that Frank
wished them to undertake to kill Mr. White, and that J. J. Knapp,
Jr., would pay one thousand dollars for the job. They proposed
various modes of doing it, and asked Grant to be concerned, which
he declined. George said the housekeeper would be away all the
time ; that the object of Joseph J. Knapp, Jr., was first to destroy
690

PSYCHICAL INDICATIONS AT CRIME. [§ 786.

the will, and that he could get from the housekeeper the keys of
the iron chest in which it was kept. Frank called again in the
same day in a chaise, and rode away with Richard, and, on the
night of the murder, Grant stayed at the Halfway House in Lynn.
In the mean time suspicion was greatly strengthened by Joseph J.
Knapp, Jr., writing a pseudonymous letter to the vigilance com-
mittee, trying to throw the suspicion on Stephen White. Richard
Crowninshield, George Crowninshield, Joseph J. Knapp, Jr., and
John F. Knapp were arrested and committed for murder. Richard
Crowninshield made an ineifectual attempt, when in prison, to influ-
ence Grant, who was in the cell below, not to testify, and, when
this failed, committed suicide. John F. Knapp was then convicted
as principal, and Joseph J. Knapp, Jr., as accessory before the
fact. George Crowninshield proved an alibi, and was discharged.

We have here a murder coolly planned and executed by persons
of consummate skill, and yet we find the whole scheme disclosed
by the following incoherences : —

(1) Joseph J. Knapp, Jr., instead of retaining or destroying
Grant's letter, as he could readily have done, losing his presence
of mind so far as to hand it to his father, with directions to give it
to the vigilance committee.

(2) Crowninshield, ordinarily so astute and reserved, letting
Grant, who was not even an accomplice, and who therefore was not
pledged by fear to silence, into the secret.

(3) All the parties basing the assassination on a mistake of law,
they supposing that Mr. White's representatives, in case of his
death intestate, would take per stirpes, whereas in fact they would
take per capita; so that actually Mrs. Beckford, to increase whose
estate the murder was committed, received no more by an intestacy
than she would have by the will.

§ 786. Shrewd as was the claimant in the Tichborne case, there
were defects in the case which he presented which rpj^j^u
made its breaking down inevitable. These defects may case.
be thus enumerated: —

(1) The marks on his person, which were alleged to be similar
to those on the person of the genuine Roger, were evidently of
recent creation ; and so of marks of alleged bleeding in the feet,
which, it was shown, must have been made in imitation of old ia-

691

§ 786 a.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

cisions, but which could not have been produced in childhood, as
was contended.

(2) The claimant paraded French such as a cockney would be
likely to get up on short notice, while the genuine Roger had spent
all his early years in a French school.

(3) The claimant's efforts to obtain information, in Australia, of
the history and habits of the genuine heir, were in themselves
marks of imposture.

(4) The resort, at the trial, to the charge of illicit intercourse,
in order to break down Lady Radcliffe's testimony, had the effect
of breaking down the testimony of the claimant himself in one of
its material points.^

(5) The claimant's feigning sickness, when visited by Lady
Tichborne, and refusing to be seen, except in a dark room, showed
an unwillingness on his part to submit to inspection.

(6) By a blunder of the advertisements which were published
for the purpose of discovering the lost heir, he was described as
having " light brown hair." This was one of the marks of identity
relied on by the claimant, who also had " light brown hair." It
turned out, however, that the advertisement was wrong, and that
the hair of the genuine heir was dark.

(7) The theory of shipwreck set up by the claimant, in order
to explain his arrival at Australia, was so absurd that it had to be
abandoned by him.

(8) So as to blunders made by the claimant in assuming certain
peculiarities which he was erroneously informed belonged to the
lost heir.

(9) And so as to his shirking of all interviews which would bring
him into close proximity with parties with whom he had been
acquainted prior to the time of his assuming the Tichborne name.

§ 786 a. The exposure of Lefroy, as the assassin of Mr. Gold, in
Lefroy's ^^ English railway carriage in 1881, was due to one
case. Qjp those slips which have been spoken of as among the

incidents of crime. Lefroy's object was to rob a railway passen-
ger, and to then cover his tracks by throwing his victim out of
the carriage. In the English railway system this could be done
by a strong man, the victim being comparatively weak, with the

' See Morse's Famous Trials, 59 et seq.

692

PSYCHICAL INDICATIONS AT CRIME. [§ 786 CI.

probability that the criminal could escape detection, supposing he
was unknown at the time to the railway guards and to the ticket-
sellers, and that they took no notice of his entrance into the par-
ticular carriage. Had Lefroy attempted a robbery on a line where
he was entirely unknown, he might have evaded pursuit. But he
did not. His blunder and his consequent detection are thus noticed
in the London Spectator of November 12, 1881 : — " The Lefroy
case was commonplace throughout. The explanation which the
prisoner gave of the facts passed the limit which divides the impro-
bable from the impossible. The most ingenious invention could not
possibly have shielded him, and the invention to which he actually
resorted was not even ingenious. . . . It is true that the pro-
secution were not able to show the steps by which the intention of
murdering Mr. Gold was built up in Lefroy' s mind. But it is not
in the least necessary to assume that he had any knowledge of Mr.
Gold or his movements before he saw him in the railway carriage
at London bridge, or that in the first instance he had even formed
the idea of murdering him. It seems more likely that he came to
the station with the idea of committing a simple robbery on a
passenger, and that it was for this purpose that he got into the
carriage with Mr. Gold. To make this probable, it is only neces-
sary to prove that he was poor enough to make the temptation to
robbery very great, and on this point the evidence is complete.
He was at his wit's end for money ; he had pawned nearly every-
thing he had to pawn ; he had got the means of buying his rail-
way ticket by passing off two Hanoverian medals as sovereigns in
the neighborhood where he lived. . . . These facts supply all
the connection with Mr. Gold that is needed to explain Lefroy's
acts. He sees an elderly man disposing himself to sleep in a first-
class carriage. There is no other passenger in the compartment,
and he thinks that he may rob him, and then make his escape before
reaching his journey's end. Very possibly he may have read of
some such incident, either as a fact or a fiction, and, perhaps, have
painted to himself how he would set about doing the same thing.
At all events, he must have made up his mind, on seeing Mr. Gold,
to murder and rob him. But the shot designed to destroy life did not
even completely disable him, and the resistance which Lefroy encoun-
tered deranged his plans, and possibly disturbed his self-control.
The notion of escaping from the carriage himself, and leaving his

693

§ 787.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY,

victim in it, was abandoned — if it had ever been entertained — possi-
bly because he no longer had the nerve to achieve the dangerous feat
of jumping from a train in rapid motion ; possibly because it was
easier to complete the murder by throwing Mr. Gold out of the
carriage than in any other way. The only remarkable feature in
the case is the rapidity with which he formed the plan — which for
a few hours he carried out successfully — of attributing the murder
to a third person who had afterwards left the carriage, unless, in-
deed, this notion was from the first included in his scheme, and he
intended all along to inflict some slight wound on himself, and then
inform the police of the murder, in the hope of throwing them off
the scent. There is an air of sensational romance about this plan,
which may very probably have had its attractions for an excitable
and half-educated man, such as Lefroy evidently was.

" It is singular what a fatal' obstacle to the success of his plan the
fact of his being known to be ticket-collector at London bridge
would have constituted, even if he had succeeded in killing Mr.
Gold at the first shot. Had there been no resistance on Mr.
Gold's part, Lefroy probably meant to throw out the body while
the train was in a tunnel, and then, if the carriage had shown no
very obvious traces of the crime which had been committed in it,
he might have walked away from the station without hindrance, or
even notice. Even then, however, the case against him would have
been a strong one. He would still have been knoAvn as the only
man in the carriage with Mr. Gold, so that, with the omission of
the incident of the watch in his boot, the evidence would have been
pretty much the same in kind, though less in amount. If Lefroy
had not chosen a line on which he happened to be known, it is
quite possible that the notice taken of his appearance would not
have been sufficient to insure his identification, and in that case he
would almost certainly have escaped."

2. Self -overreaching .

§ 787. The Earl of Northampton, the second son of Henry

Howard, Earl of Surrey, was the uncle of Lady Frances

fromlx?es- Sussex, the wife first of the Earl of Essex, and after-

sivepre- wards of Robert Carr, the famous Earl of Somerset.

cautions.

Private revenge and state policy led this beautiful and
brilliant though bad woman to desire the murder of Sir Thomas
694

PSYCHICAL INDICATIONS AT CRIME. [§ 787.

Overbury, who opposed her marriage with her second husband,
and held secrets which might, if disclosed, thwart her political
ambition. She procured or promoted the committal of Overbury
to the Tower, where poison was administered to him under her
direction. In the attempt, at least, she had as accomplices, her
husband, and her uncle, Lord Northampton. The work was suc-
cessful. The next effort was to conceal it, Helwysse, the lieuten-
ant of the Tower, was instantly to advise Lord Northampton of the
result. This he did, and then came a letter, evidently meant to be
confidential, from the earl in reply: —

" Noble Lieutenant — If the knave's body be foul, bury it
presently. I'll stand between you and harm : but if it will abide
the view, send for Lidcote, and let him see it, to satisfy the damned
crew. When you come to me, bring me this letter again yourself
with you, or else burn it. Northampton."

This was written early in the morning. So great, however, was
the turmoil in Northampton's mind, lest the body should not be got
out of sight, that; at noon on the same day he hurries off the fol-
lowing : —

" Worthy Mr. Lieutenant — Let me entreat you to call Lidcote
and three or four friends, if so many come to view the body, if
they have not already done it ; and so soon as it is viewed, without
staying the coming of a messenger from the court, in any case see
him interred in the body of the chapel within the Tower instantly.

" If they have viewed, then bury it by and by ; for it is time,
considering the humors of the damned crew, that only desire means
to move pity and raise scandal. Let no man's instance cause you
to make stay in any case, and bring me these letters when I next
see you.

" Fail not a jot herein, as you love y' friends : nor after Lidcote
and his friends have viewed, stay one minute, but let the priest be
ready ; and if Lidcote be not there, send for him speedily, pre-
tending that the body will not tarry."

This had no signature, and was evidently meant for the eye of
Helwysse alone. But what would the world say if the proud and
great Earl of Northampton, the " wisest among the noble, and the
noblest among the wise," should seem to be silent when officially
informed of the death of one with Avhom he and Lord Rochester
(the first title of Somerset) had been on such intimate terms ? So

695

§ 787 rt.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

he writes to the lieutenant the following artful letter, meant for the
public eye : —

" Worthy Mr. Lieutenant — ^ly Lord of Rochester, desiring to
do the last honor to his dec'd friend, requires me to desire you to
deliver the body of Sir T. Overbury to any friend of his that
desires it, to do him honor at his funeral. Herein my Lord de-
clares the constancy of his affection to the dead, and the meaning
that he had in my knowledge to have given his strongest straine at
this time of the King's being at Tibbald's, for his delivery. I fear
no impediment to this honorable desire of my Lord's but the un-
sweetness of the body, because it was reputed that he had some
issues, and, in that case, the keeping of him above must needs give
more offence than it can do honor. My fear is, also, that the body
is already buried upon that cause whereof I write ; which being so,
it is too late to set out solemnity.

" This, with my kindest commendations, I ende, and reste
" Your affectionate and assured friend,

" H. Northampton.

'- P. S. You see my Lord's earnest desire, with my concurring
care, that all respect be had to him that may be for the credit of
his memory. But yet I wish, withal, that you do very discreetly
inform yourself whether this grace hath been afforded formerly to
close prisoners, or whether you may grant my request in this case,
who speak out of the sense of my Lord's affection, though I be a
counsellor, without offence or prejudice. For I would be loth to
draw either you or myself into censure, now I have well thought of
the matter, though it be a work of charity."^

Unfortunately for the success of the plot, both sets of letters
were preserved ; and their inconsistency formed one of the chief
presumptions in the remarkable trials that ensued.

§ 787 a. Insurance of the life of a person with whom the party

insuring has no tie of blood or of common interest is an

aticVonvic- ^^^ which, coupled with a subsequent homicide, naturally

tiiii as a attracts suspicion. It is true that there are cases in
coQiession. -^ ,

which one man may insure another's life merely for

speculative purposes ; and it is true, also, that men often insure

the lives of those to whom they ai'e much attached, and whose

• Amos's Great Oyer, 173, etc.

696

PSYCHICAL INDICATIONS AT CRIME. [§ 787 ft.

health they cherish as they woukl their own. Is is impossible,
however, in view of many recent trials, to overlook two important
facts. One is, that the prevalence of life insurance opens the way
to a new line of crimes. The second is, that in opening the way,
it points to the probable criminal. Two of the most extraordinary
cases of this class are those of Goss, Avho was murdered near
West Chester, Pennsylvania, in 1873, and of Armstrong, who was
murdered in Camden, New Jersey, in 1878, the murderer in
each case having an insurance on the life of the victim. A re-
markable illustration of the same principle is to be found in the
trial of Paine, in London, 1880, for the killing of Miss Maclean.
"To understand," said the London Times, of February 27, 1880,
" the motives at work and the exact position of Paine and Miss
Maclean before her death, it was essential that the jury should have
present to them the whole history of their relations, and this obliged
the crown to call many witnesses. We have, at all events, the
satisfaction of knowing that the verdict of guilty has been arrived
at after an exhaustive inquiry. It is not an insignificant fact that
Miss Maclean was of very small stature, that she suffered from
spinal deformity, and that she Avas lame. Her father, Lieutenant-
Colonel Maclean, died several years ago ; and for some time after
his death she lived with her mother in London. Just as the mother
and daughter were about to take up their residence in a house
called the Shrubbery, at the village of Broadway, in Worcester-
shire, the former died. The daughter then became entitled to some
property, including gas shares and an interest in a house at East-
bourne-terrace. Miss Maclean went after a short time to live at the
Shrubbery, and she was joined there by Paine. Their acquaint-
ance dated from before the mother's death. He had visited occa-
sionally at the house in the mother's lifetime, and had, it is to be
feared, led the daughter into bad habits. After the death of the
former, he renewed his acquaintance ; he managed to gain her
affections ; and in the month of July they were living together and
passing as husband and wife at the Shrubbery. With the exception

» Udderzookw. Com., App. to Whar. Hunter v. State, 40 N. J. L. § 495 ;
on Horn. ; 76 Penn. St. 348, discussed in discussed in Wli. Cr. Ev. §§ 262-3.
Wh. Cr. Ev. §§ 340, 353, 544, 778, 788,
805, 819.

697

§ 787 a.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

of a visit to London for ten days, they resided in Worcestershire
until the journey which was to be Miss Maclean's last. There can
be litttle doubt that she drank far too much, and that her weakness
had revealed itself even before she went to live with Paine. He
was dissipated and often intoxicated, and in his company her habits
of intemperance grew to a degree which enfeebled her health.
Whether he at first tempted her to indulge this passion is unknown;
but it is clear that he took no pains to prevent her drinking to ex-
cess, and the amount of alcohol consumed during their first visit to
London sounds incredible. Her brother, who supposed that Paine
was going to marry her, and who did not know that he had a wife
living, naturally wished her to make a settlement of her property
which would protect her against Paine ; but this did not recommend
itself to him and Miss Maclean. They preferred to make wills in
favor of each other, she leaving him all her property, and he leaving
her all his property, which was nothing. Still more significant was
the fact that Miss Maclean executed, in October, a deed of gift
transferring all her property to Paine. The result of this trans-
action was to strip her of all that she possessed. It is also not
unimportant, in an inquiry as to what was in Paine's contemplation,
to note that about the time that this deed of gift was being prepared
Paine tried, though unsuccessfully to effect an insurance for <£250
on the life of Miss Maclean. The chief witness as to their life at
Worcester, in September and October, was Fanny Matthews — a
suspected witness, no doubt — and her testimony, if true, showed
that at a time when Miss Maclean was ill Pain had pressed neat
spirits upon her and poured them down her throat. It is fortified,
too, by the evidence of Mrs. Porter who lived next door to the
Shrubbery. According to her account. Miss Maclean, while ad-
mitting that she had drunk a bottle of brandy in a day, said, ' He
forced me to drink it ; he makes me drink it.' Why, it was asked
by Mr. Serjeant Ballantine, with reference to this part of the case,
did not the prisoner, if his intentions were criminal, make away
with her as soon as a will was made in his favor ? This is a perti-
nent and plausible question. The objection is, however, partly
explained away by the wayward, vacillating temper of Paine, who
was too often tipsy and bemuddled to be capable of deep, consecu-
tive designs. The question might be further answered if the exact
date of the attempt to insure Miss Maclean's life Avere known ; and
698

PSYCHICAL INDICATIONS AT CRIME. [§ 787a.

it is partially answered by the fact, that during September, Paine
was arranging about the deed of gift, which would vest at once in
him what he desired. All this early history was relevant only so
far as it threw light on the journey to London, on the 3d of
November, and what took place while Miss Maclean, the prisoner,
and Fanny Matthews lived at the coifee-shop kept by the'Powells, in
Seymour place. Indeed, the guilt of the prisoner was mainly, if
not exclusively, to be determined by what Paine did during a few
days before Miss Maclean's death. She was brought to London
very ill or intoxicated, or both. The description of her miserable
state as she was carried up stairs at Seymour place recalls the
story, as told in a somewhat similar inquiry, of the death of Mrs.
Staunton at Penge. According to the prisoner's story, he took her
to London in order to obtain medical advice. But, whatever were
his motives, he acted, to say the least, with cruelty and culpable
negligence. Mrs. Powell and Fanny Matthews, the two chief
witnesses who spoke as to what took place after the 3d of Novem-
ber, did not agree as to all points ; and it was open to Serjeant
Ballantine to argue that as the Powells had quarrelled with Paine,
their evidence against him was unworthy of credit. But enough
remained, after making all due allowance for discrepancies and
exaggerations, to convict him of gross guilt. Unless Fanny Mat-
thews, Mrs. Powell, and the nurse were in a league of perjury
against him, he had failed in every duty towards one with respect
to whom he had contracted obligations recognized by the criminal
law as well as morality. Liquor was forced upon her while she
was feeble and ill. She was ' dosed' or ' crammed' with alcohol.
At a time when Paine was well aware that abstinence from stimu-
lants was imperative, he plied her, contrary to the doctor's orders,
with raw spirits. He took no steps to inform her relatives of her
dangerous state. His sole desire appeared to be that few people
should see her ; that she should sign nothing ; and that brandy and
gin should be constantly within her reach. The motive for the
crime lay on the surface. In November, Paine had secured all the
property ; and his marriage, to say nothing of his intrigue with
Fanny Matthews, sufficiently accounted for a desire to get rid of
Miss Maclean. The difficulty under which the prosecution labored
was in showing that Paine's misconduct, though morally heinous,
fell within the purview of the criminal law. It is not a crime to

699

§ 787 «.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

stand by unconcerned while a person injures himself by drinking
too much alcohol. Xor is it a crime for a stranger to be callous
and indifferent towards a person who needs care and solicitude.
Fanny Matthews had not engaged to provide food for Miss Maclean ;
her conduct was no crime; and the attorney-general had no choice
but to withdraw the case against her. The same difficulty applied
in some degree to the charcje against Paine. It w"as difficult to
prove that excessive stimulants had been administered by him with
the deliberate intention of accelerating death : and nothing less
would warrant a verdict of murder. He could not be found guilty
of manslaughter without showing that he had grossly failed in some
legal duty towards one who was not his wife, and who was of
mature age and average intelligence. What was that duty ? It
did not arise out of any contract ; it was not exactly the same as
the duty of a father to a child. It was a duty which the law im-
poses whenever any one assumes the control of one who is depend-
ent and helpless — an obligation of an ill-defined character created
for the protection of the weak who are at the mercy of the strong.
No one will deny that Miss Maclean had fallen wholly under the
control of Paine, whom she seems to have at once loved and feared;
and a jury have found, on good grounds, that he grossly abused his
position and cruelly failed in the duty which he had undertaken."

In the address of Hawkins, J., to the prisoner, after conviction,
the motives prompting to the homicide are thus pointedly exposed: —

"You knew well enough at the time that you could do no such
thing, as you were already married, and you were in friendly com-
munication with your wife. I do not believe, as you say, that
there was any ill-feeling between Mrs. "Wilson and the deceased ;
but what I do believe is that the mother being dead and the brother
having gone abroad, you, knowing that this poor girl had property,
kept her from her aunt and every other soul who was interested in
her. No sooner had you gone to Broadway after you had isolated
this poor creature from her friends than you made your w^ay over
to Worcester, where you had made for her a will bequeathing to
you every farthing she possessed. You then tried to get her life
insured in the Gresham Office for ,£250, and if that proposal had
been accepted, it would have been j£250 more in your favor in the
event of her death. Then you tell me that all this was done for
the purpose of satisfying her. You really must think people very
700

PSYCHICAL INDICATIONS AT CRIME. [§ 787a.

credulous indeed. I confess, for my own part, I believe not one
word you have said in that respect. I cannot search your mind. I
can only infer what you thought from what you did. Something
occurred to you which led you to write to Mr. Goldingham, asking
him to prepare the deed of gift, which you no doubt thought would
be more secure for you, as a will is not always secure — it might be
impeached on the ground of undue influence. You got this deed of
gift prepared, and got her to execute it. At that time she seems
to have been in perfect health, as there is not a single witness who
speaks to her health having been failing before that time, although
it was said that she was fond of drinking and given to taking more
than was good for her. She, however, suffered little from that,
and was always cheerful and happy, and appeared to be attached
to you. You appeared to be attached to her, and you made use of
expressions when at the insurance agent's which led him to believe
that you were a little too affectionate. Possibly you thought that
a great deal of affection shown at that time would the more readily
induce her to sign more documents to put her property into your
hands at a time when she had no friends and no advisers — her
mother dead and her brother gone."

" You have spoken of your kindness and attachment to her.
How did you show it on the first night? You left her alone. How
did you show it the next night ? Why, by taking from the house
her only attendant, and from that time you and Fanny Matthews
lived together as man and wife. Then you wanted to make believe
that this poor creature had gone to Brighton with you. I cannot
dwell with moderation upon your inhuman conduct. I can conceive
nothing more atrocious than the exclamation you made on the last
morning on which that poor creature saw the light of day — to her
you said it was a sin to preserve such a life. Under these circum-
stances what ought I do with you, who have, in my judgment, been
guilty of a crime next in enormity to the crime of murder. Had
you been guilty of murder, most unquestionably you would have
been hanged, as you richly deserve to be. As it is, I have the
power to pass upon you the next sentence in severity to that of
death, and that sentence I think it my duty to pronounce. For
the atrocious crime of which you have been convicted, I condemn
you to be kept in penal servitude for the term of your natural life."

701

§ 789.] MENTAL UNSOUNDNESS CONSIDERED PSTCHOLOGIGALLY.
III. AFTER CRIME.^

1, Convulsive confessions.

§ 788. " The guilty soul," said Mr. Webster, in a speech already
quoted, " cannot keep its own secret. It is false to itself;
sions may or rather it feels an irresistible impulse of conscience to
be instruc- -^^ ^^.^^ ^^ itself. It labors under its guilty possession,
and knows not what to do with it. The human heart
was not made for the residence of such an inhabitant. It finds itself
preyed on by a torment, which it dares not acknowledge to God or
man. A vulture is devouring it, and it can ask no sympathy or
assistance, either from heaven or earth. The secret which the
murderer possesses soon comes to possess him ; and, like the evil
spirits of which we read, it overcomes him, and leads him whither-
soever it will. He feels it beating at his heart, rising to his
throat, and demanding disclosure. He thinks the whole world sees
it in his face, reads it in his eyes, and almost hears its workings in
the very silence of his thoughts. It has become his master. It
betrays his discretion, it breaks down his courage, it conquers his
prudence. When suspicions from without begin to embarrass him,
and the net of circumstance to entangle him, the fatal secret strug-
gles with still greater violence to burst forth. It must be confessed,
it will be confessed ; there is no refuge from confession but suicide,
and suicide is confession."

Confessions that are voluntary are out of the range of the present
discussion. Of those that are involuntary or convulsive we may
take the following illustrations : —

§ 789. A confession by an insane person is entitled to no weight.^
. It may happen, however, that a reliable confession may
delirium or be made during a lucid interval, or that true statements
made during delirium may be corroborated aliunde.
John Whitney, a wealthy farmer of Loudonville, Ohio, was robbed
and murdered in November, 1856. Great but unsuccessful eft'orts
were made to ferret out the murderer. A man named Stringfeilow,
who was living at Loudonville at the time, was strongly suspected

' This topic is discussed in its tech.- * See Wh. on Cr. Ev. Sth ed. §§
nical relations in Wh. Cr. Ev. Sth ed. 632 et seq.
§§ 628 et seq.

702

PSYCHICAL INDICATIONS AFTER CRIME. [§ 789.

of the crime, but nothing could be fastened upon him. Stringfellow
soon afterwards left the neighborhood, and, after an absence of two
years, settled in the village of Johnstown, Hardin County. Here
he was taken sick, and in his illness became delirious. It would
seem that conscience was constantly at work within him, 'for during
his delirium he mentioned Whitney's name frequently, and divulged
a number of secrets which had been long hidden in his bosom, and
which left but little doubt that he was the guilty man. The clue
having been obtained, facts were elicited which established his
guilt.

The fact that a confession was made during sleep excludes it ;^
but it may nevertheless be the means of drawing out facts on which
a conviction may rest. A person who worked in a brewery at
Basle, in Switzerland, quarrelled with a fellow-workman, and struck
him in such a manner as to produce instant death. He then took
the dead body and threw it into a large fire under the boiling vat,
where it was in a short time so completely consumed that no traces
of its existence remained. On the following day, when the man was
missed, the murderer observed that he had seen his fellow-servant
intoxicated, and that he had probably been drowned in crossing a
bridge which lay on his way home. For seven years after no one
entertained any suspicion as to the real state of the case. At the
end of this time, the murderer, being again employed in the same
brewery, was constantly reflecting on the singularity of the circum-
stance that his crime had been so long concealed. One night one
of his fellow-workmen, who slept with him, hearing him say in his
sleep, " It is now fully seven years ago," asked him, " What was it
you did seven years ago ?" " I put him," he replied, still speak-
ing in his sleep, " under the boiling vat." As the affair was not
entirely forgotten, the man, suspecting tliat his bed-fellow might
allude to the person who was missed about that time, informed a
magistrate of what he had heard. The murderer was apprehended,
and, though at first denying all knowledge of the matter, afterwards
confessed and was executed. An analogous case is reported by
Abercrombie as having occurred in Scotland early in the present
century. A peddler had disappeared under circumstances which
made it probable that he had been murdered. All attempts to dis-

' Wh. Cr. Ev. 8th ed. § 676.

703

§ 789.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

cover the assassin failed. At last a wayfaring man, -who had been
strolling about the neighborhood, dreamed that the body would be
found in a particular spot, and that certain persons with whom he
had lately been sleeping in a barn were the guilty parties. It
turned out that this was true. But it also turned out that the
dreamer had, in his own dreams, heard the convulsive confessions
of ODe of the assassins, the latter also dreaming.^

1 In Mr. Noak's speech, in Lowen-
stein's case (Albany, 1874) we have the
following : —

" The truth is the conscience of the
murderer is never silent. On one oc-
casion lie may be compelled, in order
to restrain and stifle the stings of con-
science, to resort to apparent ease and
forced gayety, and in another he may
not be able to throw off that spectre
that haunts him ever after committing
such a crime. To refer to a well-
authenticated case that occurred in
this city within the last thirty years.
It is the case of the celebrated Euglish
forger, Cliarles Webb. I refer to it to
show how certain the criminal is, to
himself furnish the proof which leads
to his detection, and which points to
him as the criminal. On the 28th of
November, 1847, a man presented at a
bank in this city, of which Mr. A. P.
Palmer was cashier, a check purport-
ing to have been drawn by Tweddle &
Darlington for $805, and received the
money upon it. It was paid to him in
$10 bills of a new issue. Within a
short time after he left the bank it was
discovered that the check was a for-
gery. Immediately on this discovery
the bank cancelled all the bills of that
issue and destroyed the plates, believ-
ing that if they were out the forger
would be unable to pass them, or that
they would lead to his detection. A
few of them came in — one came from
Ballston and one from Saratoga — but
in each case the number had been
burned out, showing that the person

704

who committed the forgery was aware
that the bank had destroyed all simi-
lar bills, and that if the numbers re-
mained they might lead to his identi-
fication. About a year from that time
a man presented himself at Dixon's hat
store in this city and purchased a hat.
After he had purchased it he said to
Mr. Dixon, ' I don't know as you will
take my money.' This remark caused
Mr. Dixon to think there was some-
thing wrong about the money. It was
a bill on a bank in his own city, and
it appeared to be genuine, but the
simple remark made by his customer
made him think there was something
wrong ; so he sent a boy to George E.
Payne, a broker, to see if the bill was
genuine. Mr. Payne at once saw it
was one of the bills that had been ob-
tained upon the forged check, and
walked over to Mr. Dixon's store to see
the man who presented the bill. Webb,
who went by a fictitious name, suspect-
ing something was wrong, went out of
the store and walked up State Street.
He was speedily overtaken and ar-
rested, and was soon afterwards in-
dicted. While in the jail he gave the
sheriff the key of a trunk which he
said he had at Troy, and asked the
sheriff to get it for him, not for a mo-
ment supposing that he would open
the trunk to see what it contained.
But the sheriff having the key did so,
and in it were seven hundred dollars
of the stolen bills, with the dates
burned out. He was convicted, and it
turned out our police had captured the

PSYCHICAL INDICATIONS AFTER CRIME.

[§ 790.

§ 790. Confessions may also, with hardened criminals, become

in a deo-ree involuntary from the fact that crimes which ^

o "^ _ _ _ From eal-

have been frequently committed become so familiar to lousness.

celebrated forger, Charles Webb, of
England. It was a simple remark,
and one would have thought he would
never have made it.

" I remember the case of Gordon, and
so do many of yon, who was tried for
the murder of a man named Owen
Thompson, at West Albany, a short
distance only from where this murder
was committed. A drover in that case
was murdered for a few hundred dol-
lars. No one saw it done. In the
morning the poor man was found hang-
ing on to a fence with his skull crushed
in by a blow with a piece of wood used
for binding bales of hay. The day
previous, at West Albany, the sup-
posed murderer had had a conversation
with a man named Grenter. During
the conversation he said to Genter,
* Haven't I seen you somewhere behind
a bar ?' It was a simple remark, and
of no consequence or significance then
to Genter. The murderer went on to
Rochester. Chief Maloy went to Ro-
chester, where a state fair was being
held, with a man who claimed he
could identify the man who was last
seen with Thompson. Gordon passed
within a few feet of them. Strange to
say, Maloy's companion never said a
word about it, in consequence of tlie
superstition some people have against
being considered informers. Time went
on. Gordon went to Saratoga and pur-
chased a span of horses, and the vaga-
bond of a short time previous was now
driving a spirited team. The same
Providence which prompted the remark
by Gordon to Genter the day previous
to the murder, set him down in the
same car with him, one seat in front of
Genter. The same train of ideas were
in his mind on this occasion as on the

VOL. I. — 45

day previous to the cruel murder.
Looking at Genter and scrutinizing
him, again he said : ' Haven't I seen
you somewhere behind a bar ?' Genter
at once remembered hearing the re-
mark before, and that he was the man
who was suspected of having murdered
Thompson. At the next station he
telegraphed to the chief of police in
this city, and detained Gordon at
Schenectady until the chief came there.
He was placed under arrest, and, when
it was found that it was Gordon, Maloy
was laughed at for the blunder. But
the train of circumstances pointed to
him with certainty, and he was in-
dicted, tried, and convicted, and but
for the action of a single juror he
would have been hanged. As it was,
he was committed to state prison for.
life, and that juror, who lived in
Schoharie County, has never got over
the public odium which attached to
his course upon the trial. It was a
simple remark, ' Haven't I seen you
somewhere behind a bar ?' but it
pointed to Gordon, who talked with
Genter the afternoon before Thompson
was murdered, as certainly as the fact
that you and I are here now trying
this case."

In Burrill's Cir. Ev., pp. 673-76, is
the following : —

" In crimes of a comparatively petty
character, the same singular disregard
of relations and consequences is some-
times found to take place. Thieves
and receivers of stolen goods have been
known to keep the stolen articles in
their possession with the owner's
marks still apparent upon them, thus
furnishing a means of immediate iden-
tification and detection.

" The causes of this singular and

705

§ 790.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

the criminal himself as to seem every-day occurrences, which he
recurs to as naturally as a farmer to his ploughing and sowing,

sometimes sudden blindness to tlie
criminal's immediate and obvious in-
terest in the case, and this disregard
of what may be called the necessary
policy of his conduct, may now be
more particularly examined. The
circumstance of creating evidence
against himself, in the way of omission
(that is, by omitting to destroy the
impressions and vestiges of his own
action), sometimes arises from the self-
imposed necessity of the case. In enter-
ing upon the actual perpetration of a
great crime, the criminal commits him-
self to the issues of events which he
can neither foresee nor perfectly con-
trol. With the best contrived plan of
proceeding, and the best adapted means
of action, he often encounters, and
sometimes at almost every step, difS.-
culties and obstacles, against which no
provision (or no effectual one) could be
made. A trifling -accident may serve
to endanger the whole enterprise. The
premises sought to be invaded are
found to be secured with unusual care :
the intended victim takes the alarm,
and makes a long and desperate resist-
ance, with cries of distress which vio-
lence cannot wholly stifle. To deal the
mortal blow and escape for his life is
sometimes all the murderer can do.
He has no time for acts of concealment
which often take whole days and nights
to perform adequately. Again, this
omission or neglect to conceal the traces
and evidences of criminal action, even
when present to the actor's view and
within his reach and control, may be
attributed to that cnnfusion of mind and
memory, which, particularly in cases
of inexperienced ofi'enders, is often
found to attend the commission of great
crimes, and occasionally wholly frus-
trates their accomplishment. The mur-

706

derer forgets that his feet are making
the impressions which are to lead to
his discovery. The thief forgets to
erase from the article which he has
stolen the owner's marks ; or he trusts
to superficial appearances without
making thorough examination. He
keeps the stolen l)ox in his possession,
till it is there found, without thinking
of looking on the bottom, where the
evidences of ownership are distinctly
written. Lastly, supposing greater
coolness and circumspection to be ob-
served in the ciiminal act, the same
circumstance of omission may be
ascribed to an excess of confidence on
the part of the ofi'ender, in his own in-
tended after-conduct, and in his pur-
pose and plan of subsequent destruction
or concealment of the evidence of guilt,
or of the concealment of his own per-
son, or final escajDe from danger by
flight. All such explanations, how-
ever, fail to take fi'om these acts of
omission their character of intrinsic
and manifest folly. But it is in those
cases where the criminal, having effect-
ually perpetrated the crime and escaped
discovery, deliberately creates with his
own hand the strongest evidence of it,
and puts it, as it were, upon record,
that this feature of folly is found to
reach the height of absolute infatua-
tion, having almost the quality of
mental imbecility, though without any
of its exculpatory claims or conse-
quences.

"The folly, therefore (even to a
glaring degree), of particular acts on
the part of a person accused of crime
is by no means ah unanswerable proof
of their not having been committed by
him, or, if committed, of having been
the result of irresponsible agency.
They are parts of a condition of human

PSYCHICAL INDICATIONS AFTER CRIME.

[§ 790.

or a merchant to his sales. As illustrating this principle may be
considered the case of Mrs. Lydia Sherman, of New Haven, Con-
necticut, as reported in the New York Herald for January 13th,
1878. The technical questions arising in this extraordinary case
are noticed by me in another work.^ Mrs. Sherman, after her con-
viction, confessed, according to a subsequent summary in the Lon-
don Spectator, in full to eight murders by arsenical poisoning ; the
victims being her first husband, Mr. Struck, a carriage blacksmith,
and afterwards a policeman ; four of her own children ; her third
husband, Mr. Sherman, and two of his children. Her second hus-
band., Mr. Hurlburt, died with similar symptoms of arsenical poison-
ing, but she maintained that it was not with her knowledge at all

action, which seems to have been di-
vinely appointed, as a most eflFectual
instrument in a system of self-retribu-
tion ; and without which crimes of the
most aggravated enormity would con-
stantly and forever escape and defy
discovery.

"But in a wider range of observa-
tion, looking at crime in general, as a
course of conduct prompted by certain
motives, and persisted in, in the hope
of attaining certain ends, its intrinsic
folly, under any circumstances, be-
comes apparent. In yielding to the
force of temptation (the real essence of
most forms of guilt), and voluntarily
encountering the hazard of conse-
quences far outweighing the pain pro-
posed ; in entering on a path pur-
posely obscured, and most literally
crooked and tortuous, where the end
can never be seen from the beginning,
and trusting himself and all his inter-
ests to the issues of events which he
can never wholly control, the criminal
constantly manifests the most egregious
folly. And such is often his own de-
clared' estimate of himself, the moment
after the criminal impulse is satisfied,
and he has time to reflect on what has
been done, and what is to he done. And,
perhaps, the bitterest and most intoler-

able ingredient of remorse, when, after
all his arts have been exhausted in
attempts to conceal his guilt, he finds
himself detected and condemned, is the
same abiding consciousness of his own
folly.

"The criminal practice of the old
Roman law furnishes an illustration
which may be used as a fitting conclu-
sion to the present course of remark.
In capital cases, when the jury con-
demned the accused, instead of using
the direct language of our time and
system, and pronouncing him ' guilty'
of the crime charged, they adopted an
indirect form of expression, and dis-
guised the dreadful announcement
under one of those euphemisms in
which their language abounded :
' Parum cavisse videtur,^ said they : ' He
seems to have been incautious,' 'We
think he has not been sufficiently upon
his guard !' Want of due caution most
comprehensively and forcibly expresses
the sum of the whole conduct of a con-
demned criminal, from its earliest in-
stigating impulse to its fatal result.
Caution might, i:)erhaps, have led him
to escape detection and its penalty ;
but truer andwiser caution would have
enabled him to escape the crime."

' Wh. Cr. Ev. 8th ed. § 50.

707

§ 790.] MEIS'TAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLT.

events, that he got the poison ; it is possible, that in this instance
she may have been only the occasion of the death, and not its cause
— Mr. Hurlburt having possibly confounded some of his wife's
arsenic "with powders of his own with which he was accustomed, as
she says, to guard against the acidity of his beer. "What is re-
markable, as is noticed by the iSpeetatoi-, is that Mrs. Sherman
always uses the same phrase, " discouraged," to describe the state
of mind which induced her to commit murder. " Time after time
she repeats that she was greatly ' discouraged' at the thought of
her husband or her children being a burden to her, and that under
this sense of discouragement she quietly put them out of the way.
Only on the first occasion does she attribute the crime to external
suggestions. She asserts that a police officer suggested to her to
put her first husband, who had taken to his bed, and was apparently
suffering from softening of the brain, out of the way, and recom-
mended her to try arsenic. But as there does not appear to have
been the slightest motive for his suggesting such a crime, as there
is no hint even of an intrigue, or of any further relation between
him and the woman he is said to have advised, we cannot believe
this part of the story ; a bad man would not have given very dan-
gerous advice by which he was to take no profit, and, of course, a
decent man would not have given such advice at all ; so that the
falsehood, if it be one, throws grave doubt on her assertion of being
innocent of the murder of her second husband, and makes it seem
not unlikely that this apparently arbitrary disavowal of guilt was
due to some inexplicable association which made it more painful to
her to confess this than any another crime. It seems that to this
husband she was indebted for a substantial bequest in the way of
property, and this, while it adds to the probability of the murder,
may have rendered her less willing to avow it. It clearly was not in
this case ' discouragement' — the motive uniformly pleaded in every
other — which led to the murder, if murder it was. There was no
pretence for fearing that Mr. Hurlburt would be a great burden to
her, either pecuniarily or otherwise. He had enriched her, and
left her better off than she had ever been before in life. One of
the worst parts of the story of Mrs. Sherman's confession is that,
after making it, and talking a good deal of horrid rant about her
conversion and reconciliation to Christ, she declared herself very
happy indeed, which she had, she said, never been before in life,
708

PSYCHICAL INDICATIONS AFTER CRIME. [§ 790.

and accompanied her declaration with what the Neiv York Herald'' s
reporter calls a kind of ' festive titter,' which went through her
whole frame and gave her an appearance of real enjoyment. The
chronic ' discouragement' which had led to her eight or nine mur-
ders had now apparently for the first time ceased. It is another
curious feature of the case that the woman seems to have lived a
regular and quiet domestic life till she was nearly forty, and only
to have begun her course of murders at that age, when her first
husband's brain began to soften and she first became ' discouraged.'
After that every little discouragement led to new murders. She
put two of her children, a daughter and son, out of the way — the
son, ' a beautiful boy, who did not complain during his illness' —
from ' discouragement' at the prospect of having to support them ;
then a third son, nearly grown up, was murdered from discourage-
ment at the prospect of a long illness in which she might have had
to support him ; then a second daughter, somewhat of an invalid,
the care of whom kept her occasionally at home, was murdered,
out of discouragement at the prospect of ' a hard winter ;' her third
husband she dosed with arsenic in his drink, she says out of the
wish to sicken him of drink — a very unlikely story for a woman so
experienced in the fatal eifects of arsenic ; and his two children —
the baby, and a daughter who had shown great attachment to her
murderous step-mother — she apparently poisoned solely to get rid
of small domestic annoyances. She seems to have had a calm,
kindly manner popular with men, and not exciting any suspicion
among the doctors, who, like our English country surgeons in the
recent case in the north, uniformly ascribed the arsenical sickness,
to the woman's own great surprise, to gastric fever, except in one
case, that of her eldest son, a painter, in which it was ascribed to
' painter's colic' Under this calm, easy manner she seems to have
concealed one of those cold and callous hearts to which the pros-
pect of inconveniences or annoyances of any kind immediately sug-
gested that they were most likely to be radically removed by
removing the persons who caused them. The interest of the per-
petually recurring phrase she uses to describe her motive — 'dis-
couragement'— is not so much that it appears to have been really
her chief motive, as that it was almost certainly the state of feeling
by which she excused to herself her wonderfully cruel and reiterated
murders. In confessing her state of mind when about to murder

709

§ 790.] MEXTAL UXSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

her eldest son, she remarks that she now knows that her deep feel-
ing of discouragement was ' not much of an excuse, but I felt so
much troubled that I did not think about that.' To her own mind
it evidently palliated the enormity of her guilt to reflect that she
had no heart to encounter the troubles and annoyances before her
if she had allowed her husbands and children to go on fretting her
by their demands for attendance and help, What could she do in
that dejected state but just slip them quietly out of the way, by
mixins; ' half a thimbleful of arsenic' in their tea or gruel ? If she
had had more energy, more hope, more life, she thinks there would
have been less excuse for her. As it was, the temptation was too
severe ; she subsided into murder, as it were, through sheer fatigue
of mind at the thought of the many troubles before her if she hesi-
tated about it. The grim peculiarity of the case is this curious
assumption that murder, instead of needing positive passion or other
powerful incentives of some vulgar kind to account for it, is, as it
were, the natural resource of feebleness and languor of tempera-
ment. If you don't feel up to fighting your way through difficulties,
the natural man suggests to you, as Mrs. Sherman evidently thinks,
not to droop and die, or at worst to put an end to yourself, but to
put an end to your sources of human anxiety, as you would to
gnats or hornets, by extinguishing their life, not your own. You
see your eldest son, who had contributed a good deal to your sup-
port, sickening, and becoming not only a pecuniary burden, but
a probable cause of fatigue and fret for weeks to come, and the
natural recourse of the imagination is to the most convenient mode
of finally silencing all these importunate demands. The woman, by
her own account at least, never seems to have thought of murder
till some inconvenience arose to her from the person whom she
proposed to murder. She had no insane or morbid delight in the
process. It was not till it occurred to her that but for little Ann
Eliza's claims on her time she and the elder daughter Lydia would
make a good income together, that she gave little Ann Eliza arsenic
to clear her out of the way. It was not till she found that her little
step-son, Franky Sherman, very inconveniently for her, would nei-
ther get quite well nor die, that she found it advisable to put an
end to the hesitation of nature by giving him a very decided impulse
towards the grave. There does not seem to have been any murder-
ous eagerness in the woman. It was simply that she felt it the
710

PSYCHICAL INDICATIONS AFTER CRIME. [§ 790.

most natural resource when she wanted to remove a cause of fric-
tion. A husband or child caused her low spirits, and the only way
to remove the weight on her spirits was to make the inconvenient
husband or child disappear. No account of the psychology of
murder more ghastly can well be suggested, and yet it does put
very strongly before us one element in moral evil to which atten-
tion is too little drawn. The common conception of the most hideous
forms of moral evil is a conception of something due to the excess
of passion, or self-Avill, or love of wealth or ambition, or some other
not necessarily ignoble motive — only ignoble when it comes into
collision with and overpowers other far nobler impulses. But we
forget too much that in all these cases what looks like the super-
fluous energy and excess of some quality which, in moderation, we
do not despise but perhaps even admire, almost always implies also
an immense deficiency in the power of sympathy, in the capacity
for entering into the life of others. And it is less the apparently
active motive, than the deficiency of some other much nobler motive,
which really causes the temptation. Ambition, however high and
overweening, would seldom lead to crimes of this kind, unless there
was such a slowness and poverty of sympathy with the victims of
our evil deeds that the weight in the other scale were wanting.
After all, it is far oftener want of sympathetic life than excess of
egoistic life which tempts to these crimes. And in this wretched
Avoman's case we have the most perfect illustration that the most
dwindled nature, the nature not of most passion, but of least, is the
one of purest evil. A creature whose languor is the destructive
element in her, who murders to save herself from a little worry,
who gets rid of her daughters and sons as she would of troublesome
midges, and first finds out when she is convicted that low spirits
are not sufficient excuse for a habit of murder, is the most terrible
warning that human imagination can conceive of the wholesale
destructiveness of pure, unadulterated self-occupation — of the fierce
scourge which moral nothingness — refined, as it were, to a sharp
invisible sword-edge for the slaying of others — may become for the
more positive life Avith Avhich it comes in contact. Cease to care
for any one but yourself, and, though you have not life enough to
want for yourself anything postitive, though your only real desire
may be to rid yourself of inconvenience, you Avill become, by virtue
of the very grinding away of your nature, at once more destructive

§ 791a.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOaiCALLY.

and far more dangerous than creatures of larger passions with some-
thing left in them on which the sense of guilt and fear may act.
Mrs. Sherman, with her titter of recovered happiness and her mur-
derous ' discouragement,' seems to us a sort of parable of the truly
negative and yet sweepingly destructive character of pure evil — of
that climax of calm deceit and deadly purpose to which dwindling
sympathies and torpid desires may rise, when they have shrunk
into the keen, intangible, invisible knife-edge of purely passive self-
love." So far as concerns the topic immediately before us, the
retributive element in guilt of this particular type is, that when the
criminal loses his abhorrence of crime he loses the reticence by
which crime is concealed. When he becomes callous he ceases to
become secretive. The wickedness that perpetrates a long series
of crimes is the wickedness that discloses their perpetration.

§ 791. It must be remembered, however, that confessions may

emanate from delusion, or from a morbid desire to at-

to^confes-^ tract attention, a sort of epidemic which sometimes

sion under gtHkes down whole classes with a passionate impulse to
delusion. _ ^ _ -^

insist upon some blood-stain on the conscience, some-
thing like the hypochondriac epidemic impulse which insists upon
some personal abnormity ;^ from weariness of life, or from a pro-
pensity to self-destruction through a channel which from its very
tortuousness possesses its own fascination.^

§T91rt. x\s illustrating delusions the following case maybe

cited : Two brothers, named Boorn, livins; in Vermont,
Delusions. , ^ , . .,.,,., °

Case of the nad an altercation with their brother-in-law, a man named

corns. Colvin, a partial lunatic. They left him, as they may

well have supposed, in a dying state. He crawled off, however, and

fled to the Middle States. Several years afterwards, suspicion was

excited by a dream of an uncle of the supposed murderers. la

this dream he was told that Colvin had been murdered, and that

his remains would be found in a spot that was pointed out. The

dream was repeated three times until at last the place was searched,

and some articles of clothing were found which were identified as

Colvin's. Then a spaniel, connected in some way with the Colvin

' We have an illustration of the ^ These points will be found ex-
latter in a convent of nuns, near Cha- panded and illnstrated in Wli. Cr.
Ions, who were stricken down with the Ev. 8th ed. §§ 626 et seq.
belief that they were cats.

712

PSYCHICAL INDICATIONS AFTER CRIME. [§ 791a.

family, was seen snuffing uneasily about the spot close by, calling
attention to it by his importunities. It, too, was examined, and a
cluster of bones were drawn up by the dog's paw. That these
were Colvin's, and that these almost miraculous interpositions were
desicfned to bring the murder out, there were none in the commu-
nity who doubted. Other circumstances led to the arrest of the
Booms. They were conscious of guilt, and it is no wonder that
these strange prosecutors, Avho after so long an interval had united
by means so extraordinary to ferret out their guilt, should have
impressed them with a belief that it was vain to fight against what
seemed to be divine vengeance. So one of them confessed the
murderous assault, and went on further to state how, in order to
evade detection, the body had been partially burned, and the
clothes destroyed. The first part of the story was true ; the last
was a fabrication, the result either of delusion or of desperation,
or of that impulse to complete a story with which the imagination
is sometimes seized. That the actual death was indeed false,
was shown by the subsequent appearance of Colvin himself, in
time to intercept the execution of at least one of his supposed
murderers.

But a still more singular confession followed. The first was in
1819. In 1860 a very old man named Boom was arrested in
Cleveland for counterfeiting. When in custody, he confessed that
forty years before he had been concerned in a murder, and escaped
by a false personation of the deceased. The confession led to a
re-investigation of the former trial. That the second confession, as
well as the first, was a delusion, was established finally. But the
retention of this delusion for forty years in the criminal's breast
shows the enduring effect on the nervous system of a sense of
guilt, even though that guilt was not consummated.^

• See Wh. Cr. Ev. 8th ed. § 634; "Springfield, June 19, 1841.

Blackwood's Magazine, July, 1860, p. "Dear Speed: We have had the

54; Journ. Psyc. Med. 1871, p. 357; highest state of excitement here for a

supra, § 200 6. See also the case of week past that our community has

Soren Qvist, in Mr. Phillips's Famous ever witnessed ; and although the

Cases of Circumstantial Evidence. public feeling is somewhat allayed,

Lamon's Life of Lincoln (1872), p. the curious affair which aroused it is

318, gives the following letter from Mr. very far from being over yet, cleared

Lincoln : — of mystery. It would take a quire of

713

§ 191a.'] MEXTAL UNSOUNDNESS CONSIDERED PSYOHOLOaiCALLY.

In the same connection may be examined a well-known English
case called the Campden Wonder. An old man, named William

paper to give you anytliiiig like a full
account of it, and I, tlierefore, only
propose a brief outline.

" The cMef personages in the drama
are Archibald Fisher, supposed to be
murdered, and Archibald Trailor,
Henry Trailor, and William Trailor,
supposed to have murdered him. The
three Trailors are brothers. The first,
Archibald, as you know, lives in town ;
the second, Henry, in Clary's Grove ;
and the third, William, in Warren
county ; and Fisher, the supposed
murdered, being without a family, had
made his home with William. On
Saturday evening, being the 29th of
May, Fisher and William came to
Henry's in a one-horse dearborn, and
there staid over Sunday ; and on Mon-
day all three came to Springfield
(Henry on horseback), and joined
Archibald at Myers's, the Dutch car-
penter. That evening at supper Fisher
was missing, and so next morning
some ineffectual search was made for
Mm; and on Tuesday, at one o'clock
P. M., William and Henry started
home without him. In a day or two
Henry and one or two of his Clary
Grove neighbors came back for him
again, and advertised his disappear-
ance in the papers.

" The knowledge of the matter thus
far had not been general, and here it
dropped entirely till about the 10th
inst., wlien Keys received a letter from
the postmaster in Warren county, that
William had arrived at home, and was
telling a very mysterious and improba-
ble story about the disappearance of
Fisher, which induced the community-
there to suppose he had been disposed
of unfairly. Keys made this letter
public, which immediately set the
whole t6wn and adjoining county agog.

714

And so it has continued until yester-
day.

' ' The mass of the people commenced
a systematic search for the dead body,
while Wickersham was dispatched to
arrest Henry Trailor at the Grove,
and Jim Maxcy to Warren to arrest
William. On Monday last Henry was
brought in, and showed an evident
inclination to insinuate that he knew
Fisher to be dead, and that Archibald
and William had killed him. He said
he guessed the body could be found in
Spring Creek, between the Beardstown
Road and Hickox's mill. Away the
people swept like a herd of buffalo, and
cut down Hickox's mill-dam nolens
volens, to draw the water out of the
pond, and then went up and down, and
down and up the creek, fishing and
raking, and raking and ducking, and
diving for two days ; and, after all, no
dead body found. In the mean time a
sort of a scufiiing-ground had been
found in the brush in the angle or
point where the road leading into the
woods past the brewery and the one
leading in past the brick grove meet.
From the scuflie-ground was the sign
of something about the size of a man
having been dragged to the edge of the
thicket, where joined the track of some
small wheeled carriage drawn by one
horse, as shown by the road-track.
The carriage track led off towards
Spring Creek. Near this drag-trail,
Dr. Merryman found two hairs, which,
after a long scientific examination, he
pronounced to be triangular human
hair, which term, he says, includes
within it the whiskers, the hair grow-
ing under the arms, and on other parts
of the body ; and he judged that these
two were of the whiskers, because the
ends were cut, showing that they had

PSYCHICAL INDICATIONS AFTER CRIME. [§ 791 a.

Harrison, steward to Lady Campden, went out on foot on the 16th
of August, 1660, to collect rents. He did not return at his usual

flourished in the neighborhood of the
razor's operations.

" On ThVirsday last Jim Maxoy
brought in William Trailer from War-
ren. On the same day Archibald was
arrested, and put in jail. Yesterday
(Friday) William was put upon his
examining trial before May and Lavely;
Archibald and Henry were both pres-
ent. Lamborn prosecuted, and Logan,
Baker, and your humble servant de-
fended. A great many witnesses were
introduced and examined, but I shall
only mention those whose testimony
seemed most important. The first of
these was Capt. Ransdell. He swore
that, when William and Henry left
Springfield for home on Tuesday be-
fore mentioned, they did not take the
direct route, which, you know, leads
by the butcher-shop ; but that they
followed the street north until they got
opposite, or nearly opposite, May's new
house, after which he could not see
them from where he stood ; and it was
afterwards proved, that, in about an
hour after they started, they came into
the street by the butcher's shop from
towards the brick-yard. Dr. Merry-
man and others swore to what is stated
about the scufile-ground, drag-trail,
whiskers, and carriage tracks.

" Henry was then introduced by the
prosecution. He swore that when they
started for home, they went out north,
as Ransdell stated, and turned down
west by the brick -yard into the woods,
and there met Archibald ; that they
proceeded a small distance further,
when he was placed as a sentinel to
watch for aiid announce the approach
of any one that might hajjpen that
way ; that William and Archibald took
the dearborn out of the road a small
distance to the edge of the thicket,

where they stopped, and he saw them
lift the body of a man into it ; that
they moved oflf with the carriage in the
direction of Hickox's mill, and he
loitered about for something like an
hour, when William returned with the
carriage, but without Archibald, and
said that they had put him in a safe
place ; that they went somehow, he did
not know exactly how, into the road
close to the brewery, and proceeded on
to Clary's Grove. He also stated that
some time during the day William told
him that he and Archibald had killed
Fisher the evening before ; that the
way they did it was by him (William)
knocking him down with a club, and
Archibald then choking him to death.
"An old man from Warren, called
Dr. Gilmore, was then introduced on
the part of the defence. He swore that
he had known Fisher for several years,
that Fisher had resided at his house a
long time at each of two difi"erent spells ;
once while he built a barn for him, and
once while he was doctored for some
chronic disease ; that two or three years
ago Fisher had a serious hurt in his
head by the bursting of a gun, since
which he had been subject to continued
bad health, and occasional aberration
of mind. He also stated that on last
Tuesday, being the same day that
Maxcy arrested William Trailer, he
(the doctor) was from home in the early
part of the day, and on his return,
about 11 o'clock, found Fisher at his
house in bed, and apparently very un-
well ; that he asked him how he had
come from Springfield ; that Fisher said
he had come by Peoria, and also told of
several other places he had been at,
more in the direction of Peoria, which
showed that he at the time of speaking
did not know where he had been wan-

715

§791<l.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

hour, and his wife sent his servant, John Perry, to inquire after
him. Perry, according to his own account, wandered about during
the night without finding his master. The next morning, however,
a hat and comb much hacked and cut, and a band stained with blood,
which had been worn by Harrison the evening before, were found
in a wild spot, near a large furze brake, where he would have been
likely to have been met by Perry. The neighborhood naturally
enough jumped at the conclusion that Harrison was murdered, and
that Perry was the murderer. Perry soon came to this conclusion
too, and made a confession to this effect, implicating his brother and
mother. The trial took place, and, though there was no proof of

dering about in a state of derangement.
He further stated, that in about two
hours he received a note from one of the
Trailor's friends, advising him of his
arrest, and requesting him to go on to
Springfield as a witness, to testify as
to the state of Fisher's health in former
times ; that he immediately set off,
calling iipon two of his neighbors as
company, and riding all evening and
all night, overtook Maxcy and William
at Lewistown in Fulton County. That
Maxcy refusing to discharge Trailer
upon his statement, his two neighbors
returned, and he came on to Spring-
field. Some question being made as to
whether the doctor's story was not a
fabrication, several acquaintances of
his (among whom was the same post-
master who wrote to Keys as before
mentioned) were introduced as a sort
of compurgators, who swore that they
knew the doctor to be of good character
for truth and veracity, and generally
of good character in every way.

" Here the testimony ended, and the
Trailers were discharged, Archibald
and William expressing, both in word
and manner, their entire confidence
that Fisher would be found alive at the
doctor's by Galloway, Mallory, and
Myers, who a day before had been dis-
patched for that purpose ; while Henry

71d

still protested that no power on earth
could ever show Fisher alive. Thus
stands this curious afl'air.

"When the doctor's story was first
made public, it was amusing to scan
and contemplate the countenances, and
hear the remarks of those who had
been actively engaged in the search for
the dead body ; some looked quizzical,
some melancholy, and some furiously
angry. Porter, who had been very
active, swore he always knew the man
was not dead, and that he had not
stirred an inch to hunt for him. Lang-
ford, who had taken the lead in cut-
ting down Hickox's mill-dam, and
wanted to hang Hickox for objecting,
looked most awfully woebegone ; he
seemed the ' victim of hunrequited affec-
tion,' as represented in the comic al-
manacs we used to laugh over. And
Hart, the little drayman that hauled
Molly home once, said it was too
damned bad to have so much trouble,
and no hanging after all. I commenced
this letter yesterday, since which I re-
ceived yours of the 13th. I stick to
my promise to come to Louisville.
Nothing new here, except what I have
written."

See 4 West. Law Journ, 25, for addi-
tional details.

PSYCHICAL INDICATIONS AFTER CRIME. [§ 792.

the corpus delicti, the mother and the two sons were convicted and
executed. Some years afterwards Harrison reappeared at Campden,
stating that he had been robbed by ten horsemen on the night in
question, and then kidnapped and carried beyond seas. It is possi-
ble, supposing this to be true, to explain Perry's conclusion on the
ground either of delusion or of desire for notoriety.

§ 792. Of confessions from desire for notoriety we have nume-
rous illustrations. A mulatto named Qhastine Cox was Desire for
tried in New York in 1879 for the murder of a lady notoriety.
under circumstances which made it for some time difficult to find
the track of the assassin. Public attention was directed to the
question for several weeks ; numerous communications appeared in
the papers implicating more or less directly various parties ; and
the police were advised of a confession by a tramp, who took this
way of attracting attention to himself as the supposed murderer,
but who turned out ultimately not to have had the slightest connec-
tion with the offence.

Mr. McCarthy, when discussing in his history the Jamaica in-
vestigation of 1865, says: " Many wild exaggerations had found
their way into some newspapers. These came from private letters.
It sometimes happened that men who had been engaged in putting
down the insurrection represented themselves as having done deeds
of savage vengeance of which they were really not guilty. . . .
Such seems to have been the fervor of repression in Jamaica that
persons were found eager to claim an undue share of its honors by
ascribing to themselves detestable excesses which, in point of fact,
they had not committed."

Of confessions of this class hypochondria gives many illus-
trations. Persons whose temperament has become thus touched
will resort to the most desperate methods to attract attention.
The most innocent type that we have is that of the sentimentalist,
who feigns certain mental experiences of a peculiarly poignant
character, which experiences are hung out something in the way
pictures are in a gallery, to excite the interest of the amateur.
Of course the more lurid the coloring, and the more sad the sorrow
it depicts, the more real the sympathy to be secured from an honest
and kind-hearted observer, and the more profuse the ejaculations
of the mere co-sentimentalist.

Next/ac^s are fabricated as well as experiences. Thus Cheru-

717

§ 792,] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

bina believes that she was changed in the cradle, and that an earl
and a countess are her parents, instead of the old farmer and his
wife who brought her up. This big lie, of course, necessitates a
myriad of minor ones to enable it to be carried about with a
proper retinue, until Cherubina's whole life becomes a fabrication.
If guilt has to be confessed to make up a consistent story, a con-
fession of guilt is fabricated.

Persecutions with such -are 'favorite myths. Margaret Fuller,
whose attitudes and surroundings, in spite of her apparent earnest-
ness, were all pictorial and artificial, made the neglect she suffered
from her father one of the favorite topics in her letters, though
even her editor, laudatory as he is, is forced to tell us that all this
neglect was imaginary — that a kinder or truer father did not exist.
It is still doubtful whether Casper Hauser's wounds were not self-
inflicted and his dumbness self-assumed. And it is certain that the
more tender the care bestowed on such cases is, and the more con-
fiding the sympathies, the more frequent and subtle the simulation.

But if the flag by which this attention is to be roused is inscribed
among the more refined with a sentiment, among the coarser it is
likely to be blazoned with a crime. Lord Cockburn, in his memoirs,
gives us the following; instance of this : —

" On the 13th of November, 1806, a murder was committed in
Edinburgh which made a greater impression than any committed
in our day, except the systematic murders of Burke. James
Begbie, porter to the English Linen Company's Bank, was going
down the close in which the bank then was, on the south side of
the Canongate, carrying a parcel of bank-notes of the value of
four or five thousand pounds, when he was struck dead by a single
stab, given by a single person who had gone into the close after
him, and who carried off" the parcel. This was done in the heart
of the city, about five in the evening, and within a few yards of a
military sentinel, who was always on guard there, though not
exactly at this spot, and at the moment possibly not in view of it.
Yet the murderer was never heard of. The soldier saw and heard
nothing. All that was observed was by some boys who were play-
ing at hand-ball in the close ; and all that they saw was that two
men entered the close as if together, the one behind the other, and
that the front man fell, and lay still ; and they, ascribing this to
his being drunk, let him lie, and played on. It was only on the
718

PSYCHICAL INDICATIONS AFTER CRIME. [§ 794.

entrance of another person that he was found to be dead, with a
knife in his heart, and a piece of paper, through which it had been
thrust, interposed between the murderer's hand and the blood. The
skill, boldness, and success of the deed produced deep and univer-
sal horror. People trembled at the possibility of such a murderer
being in the midst of them, and taking any life that he chose.
But the wretch's own terror may be inferred from the fact that in
a few months the large notes, of which most of the booty was
composed, were found hidden in the grounds of Bellevue. Some
persons were suspected, but none on any satisfactory ground ; and,
according to a strange craze or ambition not unusual in such cases,
several charged themselves with the crime, who, to an absolute
certainty, had nothing to do with it."

§ 793. Confessions, also, may be self-serving, and if so, they are
valueless. When they would promote an end, they lose From in-
all evidential value. ^ Under this head fall the confes- t'^'^est-
sions of the alleged paramours of Anne Hyde, Duchess of York,
who, under the belief that in this way they would please Charles
II., falsely confessed to adulterous intercourse with the duchess.^

§ 79-1. The English common law wisely refuses to admit in evi-
dence confessions made under the influences of promises -p^.^^^ ^^^_
or threats. It has not been so careful, however, in guard- ^^^ excite-

... o • ment.

ing against morbid influences which may elicit confessions
in themselves untrue. In the life of Sir Christopher Wren, pub-
lished in 1881, Ave have the following: —

" In the parish of Haseley is the manor of Ryecote (or Ricot),
which by marriage had become the property of Sir Henry Norris,
Queen Elizabeth's ambassador to France, whom she created Baron
Norris (or Norreys) of Ryecot, and whose descendants, now the
Earls of Abingdon, possess the manor to this day. During Dr.
Wren's incumbency a strange event took place. Among the re-
tainers of Lord Norris was an old man who had charge of the fish-
ponds ; he had one nephew, who was the heir of all his uncle's
possessions and savings. The nephew enticed the old man out one
night, waited till he fell asleep under an oak tree, murdered him
by a blow on the head, dragged the body to one of the ponds, tied
a great stone to the neck, and threw the corpse in. There it lay

I Wh. Ci\ Ev. 8th ed. § 627. 2 See, also, Shillito's case, Alb. L.

J. Oct. 28, 1880.

719

§ 794.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

jive weeks, during which time Lord Norris and all the neighbors
wondered what had become of the old man. At length the body-
was found by the men who were about to clean the pond, and were
attracted to the spot by the swarms of flies ; they raised the corpse
with great difficulty and recognized it. The stone tied to the neck
was evidence of foul play, though no one could guess at the mur-
derer. Lord Norris, in order to detect the criminal after the usual
manner, commanded that the corpse, preserved by the water from
the last extremity of decay, should on the next Sunday be exposed
in the church-yard, close to the church door, so that every one
entering the church could see and touch it. Tlie wicked nephew
shrunk from the ordeal, feigning to be so overwhelmed with grief
as to be unable to bear the sight of his dearest uncle. Lord Norris,
suspecting that the old man had been murdered by the one person
whom his death would profit, compelled him to come, and to touch
with his finger, as so many had willingly done, the hand of the
dead. At his touch, however, ' as if opened by the finger of God,
the eyes of the corpse were seen by all to move, and blood to flow
from his nostrils.' At this awful witness the murderer fell on the
ground and avowed the crime, which he had secretly committed and
the most just judgment of God had brought to light. He was de-
livered to the judge, sentenced and hung."

Now, as a matter of fact, the accidental bleeding of a dead body
when touched might throw an innocent party into such a convulsive
tremor as to produce an untrue confession. A true confession,
however, may be elicited by terror under a sense of supernatural
imposition. Mr. Saville in his work on Apparitions^ gives us the
following : —

" In the year 1730, when Mr. Harris was in London, he received
a letter from his confidential servant, informing him that the house
had been broken into at night, and that a lad who had lately been
taken into service had mysteriously disappeared. Mr. Harris im-
mediately left London for his seat in Devonshire, and on his arrival
was told that no alarm had been given on the night of the robbery
until the morning, when a Avindow opening on the lawn was dis-
covered to have been broken through, and footstep marks discovered
outside. Morris, the butler, was found in the plate-room, half-

' London, 1874.

720

PSYCHICAL INDICATIONS AFTER CRIME. [§ 794.

dressed, tied to a table, and with a gag in his mouth. His own
account of the robbery was that, having been roused by some noise
in the middle of the night, he had got up and gone down to the
plate-room, the door of which had been previously forced ; that he
was there seized, gagged, and bound before he could escape, or
even call for help ; and that there were five or six men altogether,
none of whom he recognized, except the lad lately taken into ser-
vice, who had disappeared since that night.

" In those days there were no telegraph wires, no means by
which a criminal fleeing from the scene of his crime could be out-
stripped by that wondrous machinery which elicited the remark of
the silent traveller, ' Them's the cords that hung John Tawell,' and
no detective or rural police. A week had elapsed before Mr.
Harris could reach his home. In the mean while the village con-
stables had attempted to trace out the robbers, but without success.
No clue to the missing plate or the thieves could be discovered.
After making a careful and strict search of the premises, Mr.
Harris returned to his court duties in town, giving up all hope of
finding either his lost property or the criminals.

" Some six months passed away before Mr. Harris again visited
his country seat, where he was received by Morris, and found
everything in its usual state, nothing more having been ascertained
about the robbery. Tired with his long journey from town, Mr.
Harris retired early to bed, and soon fell into a sound sleep.

" In the middle of the night he suddenly awoke — as he himself
was always wont to declare on relating the incident, he was in an
instant thoroughly wide awake, how or why he never could ex-
plain— and he saw by the light of a small lamp burning in his room
the lad who had disappeared on the night when the plate was
stolen standing at the foot of the bed. Mr. Harris asked what he
wanted at that time of night. The boy beckoned to him, but made
no reply. Again he asked him for what purpose he had come, and
again the boy beckoned to him, and pointed to the door.

" Mr. Harris was as devoid of fear as most men ; so he rose
from his bed, partly dressed himself, took his sword under his arm,
and then followed the lad, still beckoning and pointing with his arm
out of the room. His own statement subsequently of his feelings
was that he was in doubt as to whether the lad was alive or an ap-
parition ; that he felt no fear, but only a strong desire and deter-
VOL. I.— 46 721

§ 794.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

mination to see the matter to an end. The two went down the
staircase, and through a side door, which Mr. Harris remembers
to have been, to his astonishment, unlocked and open; they passed
into the park.

" The lad led the way for about a hundred yards towards a very
large oak, the trunk of which was surrounded and almost hidden
by low shrubs and bushes, which had been allowed to grow wild
from time immemorial. Here the lad stopped, pointed to the ground
with his forefinger, and then seemed to pass towards the other side
of the tree. It was not a dark night, and when Mr. Harris fol-
lowed, as he immediately did, the lad had vanished from his sight.
It seemed useless to search for him ; and after a little while Mr.
Harris returned to the house, fastened the door as he let himself
in-, and went to his room for the remainder of the night.

" Before the dawn he had resolved on his course of action, and
having made his arrangements, he first had the butler, Richard Mor-
ris, taken into custody. He then set workmen to dig round the oak
tree, who, after a short search, came upon the body of the lad,
buried in his clothes, scarcely a foot below the surface. It was
evident that his death was occasioned by strangulation, as the cord
was still fastened tightly round his neck.

" The butler, after attempting at first to deny having had any
hand in the business, soon made a confession of the whole aifair.
He had two accomplices to help him in the robbery, who had
carried off the stolen plate to Plymouth, but being interrupted by
the lad whilst removing it, they had murdered him, and buried his
body under the tree, where it was subsequently discovered in the
way related above. They then proceeded to tie and gag the butler,
as he was found in the pantry. The murderers were never traced,
and so escaped the penalty of their crime ; but Morris, the butler,
was tried at the ensuing Exeter assizes, and, having pleaded guilty,
was condemned and executed."

The dream of Mr. Harris, supposing it to be accurately given
above, may be explained on the ground of long brooding on his
part over the robbery and the disappearance of the lad. That
among the myriads of dreams on that particular night one should
have hit upon the truth with regard to a current conspicuous trans-
action, is not strange. And it is much less strange that the butler,
under the shock of this apparently supernatural interposition,
722

PSYCHICAL INDICATIONS AFTER CRIME.

[^ 795.

should have divulged the secret Avith which his conscience was
oppressed.^

§ 795. Peculiar scrutiny should be applied to confessions of
adultery made by women when under peculiar nervous j,^^^ ^^^_
or physical excitement. The circumstances that led to vous de-

^ '' . . rangement.

Mrs. Tilton's confession, as brought out m the suit
against Mr. Beecher, and the weight to be attached to that con-
fession, have been the subjects of the copious criticism of eminent
counsel on both sides of that remarkable trial. But whatever may
be said as to that particular case, there can be little doubt that the
confessions of Mrs. Burch, as put in evidence in the Burch divorce
case, were the result of certain insane delusions on her part, pro-
duced by morbid excitement, into which she was thrown by her
husband's treatment.^ And the same criticism may be applied to

' The Pall Mall Gazette, in an article
published in 1875, gives the follow-
ing : —

"A murder committed three years
ago at Adrianople has lately been
brought to light under singular cir-
cumstances. The victim was a Cretan
trader, who came to seek his fortunes
at Adrianople, bringing with him a
capital of £800. Instead, however, of
gaining a fortune with this amount, it
cost him his life, for it tempted the
keeper of a khan where he lodged,
named Yovantcho, to plan his assassi-
nation. Yovantcho, who was of a con-
fiding nature, imparted this scheme to
two intimate friends and to his ser-
vant, who readily entered into the
spirit of the affair. The Cretan trader
was therefore invited to a supper,
which was served in the Bulgarian
school, where, having been hospitably
plied with wine till he became drunk,
he was garroted and strangled. His
body was then pitched into a well, and
thus closed the evening's entertain-
ment. The murdered man had a son,
who, strange to say, observing the
mysterious disappearance of his father,
gave notice of the fact to the police ;

but, as is not uncommon in murder
cases even in this country, even ' the
most active and intelligent' officers of
the force failed to discover the culprits.
The matter was soon forgotten, and
probably would have remained forever
buried in oblivion, but that Yovant-
cho's servant the other day killed a
man in a tavern, and was arrested.
For some time his master sent him
daily a supi^ly of luxuries not to be
found in the prison bill of fare, but at
last imprudently discontinued this de-
licate attention. The imprisoned ser-
vant, grieved at his master's ingrati-
tude, told to the vali the story of tlie
murder in which he had borne an
humble part. The well of the Bul-
garian cemetery was immediately
emptied and searched ; the bones and
some of the clothing of the missing
Cretan trader were discovered. Yo-
vantcho and his two friends were
arrested ; they are now on their trial,
and some interesting revelations are ex-
pected toucliing the fate of other per-
sons besides the trader who liave at va-
rious times mysteriously disappeared."
2 Donavan's Modern Jury Trials, N.
Y., 1881, p. 523.

723

§ 797.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

Mrs. Dalton's confession, as put in evidence in the famous divorce
case in which she was defendant, and which was the occasion of one
of the most brilliant speeches of Mr. Choate.^

§ 79G. Somewhere between sane and insane delusions may be

classed those of witches. So far as concerns the spirit-

ie2:ed su- ^^^^ sin, they had no doubt a foundation of fact. The

pernaturai loosest dcist will admit that there are exterior agencies,

possession. _ _ _ o 7

in the shape of temptations, which assault the human

heart, and with which it is a sin to tamper. The Christian ascribes
these temptations to the direct agency of Satan. Now let us sup-
pose the temptation of jealousy. A rival is hated, and his death
vehemently agonized for. Here is a positive sin of the heart. Let
the law ascribe this — as the common law did and does — to the in-
stigation of the devil ; and let a tampering with this temptation, as
a sort of commerce with the evil one, be made a specific offence, as
it once was. And add to this the spites arising from the petulance
of old age. Here you have a series of subjective crimes which may
be confessed with truth.

But the witches did not stop here. They confessed to all sorts
of consequential overt acts. Their machinations had taken effect.
Infants had melted away before their evil eye, as wax before the
fire. The old had withered and wrinkled as the same glance fell
on them. Hearts which loved were alienated — hearts that believed
were made to curdle in unbelief. Mothers dropped their untimely
fruit. The warrior's courage forsook him in battle. Cattle took
sick, and pains, through the witches' magic, tore and WTung the
frames of those who crossed the witches' path.

§ 797. Now many of these confessions were the result of mere

insanity. But it would be wrong, however, not to re-
Notneces- . -^ . , „ , . . -, ^ ' ,. .

sariiy in- cognize m Others ot them mcidents 01 that divine eco-

^^^^^' noray which permits a superstitious foreboding and

sometimes monomaniac realization of the consequences of crime,

among the results of the criminal conception. The mind that revels

in intended guilt is apt, in the delirium of remorse, if it be not in

the development of the imagination under the fever of a wounded

conscience, to see the consequences which that guilt would have

• Great Speeches by Great Lawyers, New York, 1881.

724

PSYCHICAL INDICATIONS AFTER CRIME. [§ 798.

produced. There is never an entire orphanage of the deed from
the intent. There are few who cannot recall waking in an agony
of terror at the picture brought before them in a dream, of
the consummation of some unlawful purpose. They dreamed
they did the thing over which they were brooding, but from
which they were held back by want of opportunity or fear of con-
sequences.

§ 798. Now the policy which permitted the execution of these
poor wretches, without proof of a corpus delicti, was.

Retributive

no doubt, barbarous and wrong, isut this should not element in
lead us to refuse to recognize, as a part of the divine ^'^^'■''* ^™-
economy of rewards and punishments, this very self-punishing in-
cident of that criminal purpose on which the mind has consciously
and determinedly revelled. The intent brings its phantom conse-
quences with it. Sometimes they continue phantoms, but they do
not the less torture or degrade the mind they haunt. They may
torture it by the presence of a tribe of avenging shades, or they
may degrade it by introducing into it a progeny of foul and pol-
luted consciousnesses. The monastic system has brought many
witnesses to this. So it was with the phantoms of sensuality of
Jerome, and the phantoms of pride of Simon Stylites. Wilkie, in
one of his drawings, brings before us — and no one who has studied
it can forget it — a copy of a Spanish picture, where a young monk,
feverish and macerated with the internal gnawings of a brood which
had been hatched in his heart in the heat of mere permitted con-
ceptions, appeals for pity and solace to an aged confessor ; and
the agonized expression of the suppliant, and the sad, wise sym-
pathy of the confessor, tell the story but too plainly. But the
story is not one of the confessional alone, but of every heart which,
before whatever throne, pours forth the burden of the sin of pam-
pered desire. And every lunatic asylum bears witness to the same
fact that in the cases of imbecility in which unexecuted purposes
of sin — purposes which had only been thought over, but at the
time nursed — are babbled out, and with all their coarse conse-
quences told by the tongue of old age. The muscular hand of youth
kept the curtain down, and the secret though nourished sin was
thus concealed. But when the power of self-restraint weakened —
when the cords and rings of the curtain decayed — then the secluded
contents of the heart — these unexecuted sins, now exhaling phan-

725

§ 799.] MENTAL UNSOUNDNESS CONSIDERED PSTCHOLOaiCALLT.

toms by their very exposure — rise and spread themselves in their
deformity before the public gaze. Sometimes overt acts follow,
and we hear of sudden falls in old and heretofore unblamed men —
falls, however, which were not sudden, for there were back-stairs
in the heart down which the culprit had been for years descending.
Sometimes the act is one of imagination only, but is talked out in
the gross familiarity of senility. But, however this phenomenon
may exhibit itself, it is a part of that grand system of Providence,
by which guilt is lodged in the intent, and by which, as a compen-
sation for human law, wdiich judges of the overt acts alone, the
intent incloses in itself its own retribution. The thing is patent
in the history of society, and is meant to be so, as a mark of the
divine purpose — as a deterrer — as an avenger — as an element to
be received into consideration in adjusting the balance of human
jurisprudence.

§ 799. But there are cases in which these delusive confessions
PJ.QJQ may be the offspring of pure mania, though in such the

mania. delusion must be proved by the mania, not the mania by

the delusion. Bunyan speaks of such a case, half pityingly, half
doubtingly : —

" Since you are entered upon stories, I also will tell you one,
the which, though I heard it not w^ith my own ears, yet my author
I dare believe. It is concerning one old Tod, that was hanged
about twenty years ago or more, at Hartford, for being a thief.
The story is this : At a summer assize holden at Hartford, while
the judge was sitting upon the bench, comes this old Tod into the
court, clothed in a green suit, with his leathern girdle in his hand,
his bosom open, and all in a dung SAveat as if he had run for his
life ; and being come in, he spake aloud as follows : '■My lord^
said he, '-liere is the veriest rogue that breathes iqjon the face of the
earth; I have been a thief from a child ; ivhen I was but a little
one I gave myself to rob orchards, and to do other such like ivicked
things, and I have continued a thief ever since. My lord, there
has not been a robbery committed this many years, tvithin so many
miles of this place, but I have either been at it or privy to it.'' The
judge thought the fellow was mad ; but after some conference with
some of the justices, they agreed to indict him, and so they did, of
several felonious actions, to all of which he heartily confessed guilty,
and so was hanged with his wife at the same."
726

PSYCHICAL INDICATIONS AFTER CRIME. [§ 800.

" I murdered ray wife, some years ago," says the imnate of an
insane asylum to a visitor. " It is necessary that I should be
placed here in confinement." And then the supposed murderer
goes on to relate with great equanimity and circumstantiality the
details of the murder. But the wife was not murdered at all, and
is still alive.

So the publication of a conspicuous homicide is apt, as we have
seen, to generate a series of pretenders to the honor of being the
perpetrator. Why should there not be several Charlotte Cordays
among a thousand patients, as well as several Robespierres ?

§ 800. Then comes the epidemic confession — the strangest of all.

We have several instances of this in the German monkish

Fro 01 e pi-
chronicles of the twelfth and thirteenth centuries. True demic in-

purposes, as well as feigned facts, are often thus con- ^^°^®-
fessed. Whole communities, acting under that singular fascination
which mind in the aggregate often acquires over mind in the indi-
vidual, have thus come forward in sackcloth and ashes and accused
themselves sometimes falsely of the act, sometimes perhaps truly
of the intent. Nor are these epidemics peculiar to a superstitious
age. Dr. Southwood Smith, in his lectures on Forensic Medicine,
brings an instance in the present century. Captain Pigot, during
the naval struggles between France and England under the empire,
commanded the Hermione frigate. A mutiny took place, and he
and a portion of his officers were murdered very barbarously. " One
midshipman escaped, by whom many of the criminals, who were
afterwards taken and delivered over to justice, one by one, were
identified. Mr. Finlaison, the government actuary, who at that
time held an official situation at the admiralty, states : ' In my
own experience I have known, on separate occasions, more than six
sailors who voluntarily confessed to having struck the first blow at
Captain Pigot. These men detailed all the horrid circumstances of
the mutiny with extreme minuteness and perfect accuracy ; never-
theless not one of them had ever been in the ship, nor had so much
as seen Captain Pigot in their lives. They had obtained by tradi-
tion from their mess-mates the particulars of the story. When long
on a foreign station, hungering and thirsting for home, their minds
became enfeebled ; at length they actually believed themselves
guilty of the crime over which they so long brooded, and submitted

727

§ 803.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY,

with a gloomy pleasure to being sent to England in irons for
judgment.' "

§ 801. Finally we may notice confessions from weariness of life —

" I am foot-sore, and very weary,
And I travel to meet a friend."

That friend is death, and the frame of mind which thus
weariness seeks it IS very apt to engender phantoms of blood-
of life. guiltiness which soon appear as realities. Thus, cases

have not been unfrequent where women, deserted by those in whom
they trusted, and sick of living, have accused themselves, and this
perhaps sincerely though falsely, of the murder of infants whom
they never bore, or who died naturally. By one, who was thus
life-weary, was the whole scene described with the most touching
minuteness — the wailing of the young child — its piteous look — its
burial in a little grave under the matted and crisp spires at the foot
of a pine. Yet no one had been buried there, nor had the mother
aught to do with the child's death.

§ 802. In this line may also be noticed a false confession as a
As a mode Congenial method of suicide. Death is sought in a way
of suicide. y^\^{Q,\^ niay best correspond to the then morbid condition
of the brain ; in a way which involves others, though innocently on
their part, in the self-murder, and makes them strike the blow. " I
fling myself, not into the river, nor into the abyss, but upon the
scaflFold," Thus Lord Clarendon tells us of a Frenchman, named
Hubert, who was convicted and executed on his confession of hav-
ing occasioned the great fire in London, " although," says that
sagacious jurist and historian, " neither the judges nor any one
present believed him guilty, but that he was a poor, distracted
wretch, weary of life, and who chose to part with it in this way."^

§ 803. Before a confession be acted upon, therefore, it should be
exposed to the tests which have been above mentioned.
condition Let it be remembered, to sum up in the words of a great
biiitv^^" civilian, that " there sometimes lurks, under the shadow
of an apparent tranquillity, an insanity, which impels men
readily to accuse themselves of all kinds of iniquity. Some, de-
luded by their imagination, suspect themselves of crimes which they
have never committed. A melancholy temperament, the tcedium

' Continuation of Lord Clarendon's Memoirs, written by himself, p. 352.

728

PSYCHICAL INDICATIONS AFTER CRIME.

[§ 80^.

vitce, and an unaccountable propensity to their own destruction,
urge some of the most false confessions ; whilst they w^ere extracted
from others by the dread of torture, or the tedious misery of the
dungeon."^

§ 804. The last motive rarely exists among ourselves, but the
first may be not infrequent. The first precaution is to „

'' i- r Corpus

have absolute proof of the corpus delicti. This, however, delicti to be
is not enough. There may be abundant proof that a
crime was committed, and yet the confession may be false. We
must exact proof that connects the supposed criminal with the actual
crime. We must examine into his condition of mind, and see how
far insanity, or remorse, or bravado, or weariness of life, or delu-
sion may have influenced him. When these tests are applied, we
are ready to take the confession as impressed with its true signifi-
cance. It thus becomes a definite form of proof. ^

' Hein. Ex. 18, § 6. The subject,
in its technical relation, is examined
at large in Wh. Cr. Ev. 8th ed. §§ 753
et seq.

2 "To guard against false confes-
sions," says Jeremy Bentham, "the
two following rules ought to be ob-
served : —

" 1. One is, that, to operate in the
character of direct evidence, confession
cannot be too particular. In respect
of all material circumstances, it should
be as particular, as, by dint of interro-
gation, it can be made to be. Why so ?
Because (supposing it false) the more
particular it is, the more distinguish-
able facts it will exhibit, the truth of
which (supposing them false) will be
liable to be disproved by their incom-
patibility with any facts, the truth of
which may have come to be established
by other evidence. The greater the
particularity required on the part of
the confession, the greater is the care
taken of the confessionalist — the great-
er the care taken to guard him against
undue conviction, brought upon him
by his own imbecility and imprudence.

"2. The other rule is, that, in re-

spect of all material facts (especially
the act which constitutes the physical
part of the offence), it ought to compre-
hend a particular designation in respect
of the circumstances of time and place.
For what reason ? For the reason al-
ready mentioned : to the end that, in
the event of its proving false (a case
not impossible, though in a high degree
rare and improbable), facts may be
found by which it may be proved to be
so. ' I killed such a man' (says the
confessionalist, mentioning him) ' on
such a day, at such a place.' ' Impos-
sible' (says the judge sjDeaking from
other evidence), 'on that day neither
you nor the deceased were at that
jjlace.'

" But time and place are both indefi-
nitely divisible. To what degree of
minuteness shall the division be en-
deavored to be carried for this jjurpose?
A particular answer that shall suit all
cases cannot be given. The end in
view, as above stated, must be con-
sidered, and compared with the par-
ticular circumstances of the case, in
regard to either species of extension,
ere the degree of particularity proper

729

§ 805.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

2. Nervous tremor.

§ 805. The Countess of Somerset, when arrested on the charge

of the murder of Sir Thomas Overbury, laughed off
"Nervous
tremor the possibility of guilt with that fascination which so

sequent on ©i^inently belonged to her. It was hard to believe that
sense of underneath that young and beautiful brow, so cruel and

guilt. / .

artful an assassination could have been planned. No
alarm was shown, no cloud of manner by which the slightest trouble
of conscience was betrayed. So she bore herself until she found
she was to be taken to the Tower. There Sir Thomas Overbury,
himself but a young man, and one whom she had frequently and
kindly met, had just died in unspeakable torments. There she had
sent, under the guise of kindness, the poisoned tarts which caused
his death. One great terror grew over her — that she should be
taken to his room — that she should have to pass lonely nights there,
and in that bed. At last her nerves, wrought up to their highest
dissimulation, snapped asunder. She sank prostrate and wretched
to the ground, and then followed her confession.

From this nervous tremor arose the habit we have already
noticed, of requiring supposed criminals to touch the corpse of the
murdered man. With this was no doubt joined a superstition that
the corpse would bleed when it felt the murderer's hand. But this
was but collateral to the belief that in this way the conscience of
the guilty party would be exposed to a test which might prove
efficacious. It is true that when the criminal has time to nerve
himself for the purpose, he is able, if he has much courage of
manner, to bear himself calmly and impassively. This was the
case witli Major Strangways, in 1657, who, on being required to
take the deceased by the hand and touch his wounds, did so with a

to be aimed at by the interrogatories is not equally obsequious ; the house ?
can be marked out. Under the head of yes ; if the supposed scene of the sup-
time, the English law, in the instru- posed transaction be a house ; the
ment of accusation, admits of no other street ? yes ; if the scene were in a
latitude than what is included in the street ; but a field, a road, a common,
compass of a day. The nature of things a forest, a lake, a sea, the ocean ; any
did not, in this instance, render uni- of these may have been the scene."
formity impossible; the parts into (Bentham, Rationale of Jud. Ev., Book
which time is divided are uniform and v. chap. vi. § 3.)
determinate. Place — relative space —

730

PSYCHICAL INDICATIONS AFTER CRIME. [§ 80fi.

demeanor undisturbed. It is true, also, that others, by a powerful
effort of nervous imagination, may fling themselves into the char-
acter of an innocent person, in the same way that Mrs. Siddons
could fling herself into the character of Queen Catharine, or Talma
into that of Hamlet. " You looked as if you were really metamor-
phosed, and not merely trying to appear so." " I made myself
believe that the audience was divested of all flesh — mere spirits, and
I a spirit speaking to them," was Talma's reply. But this leap
requires some little breadth of base from which to start. The mind
cannot rise up to it suddenly. The murderer who might, if a due
interval be given, nerve himself to the work, often collapses if sud-
denly brought in contact with the deceased. The old result is
reversed ; for in former times it was the dead man that gave sign ;
now it is the living. An English case to this effect has been already
noticed. Another is reported in this country. A man named John-
son, under trial for murder in New York, in 1824, Avas taken out of
his cell to the hospital by the high constable, and required to touch
the murdered body. He did so, but the touch broke the texture of
the murderer's dissimulation. He fell into a nervous tremor, which
resulted in a confession. This confession, when he recovered, he
sought to retract ; and his counsel endeavored to exclude it in court,
on the ground that it had been improperly obtained. But the
judges overruled the objection, without in any way objecting to the
process.^

§ 806. William Peterson, a young man of only about nineteen,
but of the most extraordinary self-control, was charged, Peterson's
in the Memphis District, Tennessee, in 1852, with the ^^'^^^■
highway robbery and murder of Thomas Merriweather. No feature,
in this very remarkable case, is more remarkable than the mastery
over his nervous system which had been obtained by this young
but desperate criminal. An almost girlish delicacy and fairness of
skin and features covered an iron energy of muscle and nerve that
was able to brace itself against any expected attack. Yet even
this power gave way. Closely resembling the murdered man — so
closely as to produce mistakes between the two — was his brother,
William Merriweather. The prisoner, not knowing he was sus-
pected, was lying asleep in his bed near midnight. His chamber

I People V. Jolinson, 2 Wheeler's C. C. 378.

731

§ 807.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

was suddenly entered by the officers charged with his arrest. He
betrayed no sign, though the slight trembling of the eyelids showed
that his sleep was feigned. " I will go with you readily," and he
got up quietly to meet the charge. But suddenly his eyes fell on
a figure which may well have recalled to him the dead man, for
there, darkened in the background, stood William Merriweather,
pale and corpse-like, in the exhaustion and excitement of his long
search for, and final discovery of, his brother's murderer. It was
as if the dead and living were confronted. Then, as in former
cases, the living broke down. Peterson's composure could not
stand the trial. The policy of his intended defence was that he
did not know the deceased ; but as he looked at the brother his
" head dropped upon his breast, and he sighed deeply." A par-
tial confession and a conviction followed.^

§ 807. The following incident is given in Parton's Life of Burr.
On a trial for murder, the prisoner was defended jointly by Colonel
Burr and General Hamilton. " At first, the evidence against the
prisoner seemed conclusive, and I think Burr himself thought him
guilty. But as the trial proceeded, suspicions arose against the
principal witness. Colonel Burr subjected him to a relentless
cross-examination, and he became convinced that the guilt lay
between the witness and the prisoner, with the balance of proba-
bility against the witness.

" The man's appearance and bearing were most unprepossessing.
Besides being remarkably ugly, he had the mean down look, which
is associated with the timidity of guilt. Hamilton had addressed
the jury with his usual fluent eloquence, confining his remarks to
the vindication of the prisoner, without alluding to the probable
guilt of the witness. The prosecuting attorney replied, and it was
now Burr's province to say the last word for the prisoner. But
the day had worn away, and the court took a recess till candlelight.
This was extremely annoying • to Colonel Burr, as he meditated
enacting a little scene, to the success of which a strong light was
indispensable. He was not to be balked, however. Through one
of his satellites, of whom he always had several revolving around
him, he caused an extra number, of candles to be brought into the
court-room, and to be so arranged as to throw a strong light upon

1 See this case reported, voL ii.

732

PSYCHICAL INDICATIONS AFTER CKIME. [§ 809.

a certain pillar, in full view of the jury, against which the sus-
pected witness had leaned throughout the trial. The court reas-
sembled, the man resumed his accustomed place, and Colonel Burr
rose. With the clear conciseness of which he was master, he set
forth the facts which bore against the man, and then, seizing two
candelabras from the table, he held them up towards him, throwing
a glare of light upon his face, and exclaimed : —

" ' Behold the murderer, gentlemen !'

" Every eye was turned upon the wretch's ghastly countenance,
which, to the excited multitude, seemed to wear the very expression
of a convicted murderer. The man reeled, as though he had been
struck ; then shrunk away behind the crowd, and rushed from the
room. The effect of this incident was decisive. Colonel Burr con-
cluded his speech, the judge charged, the jury gave a verdict of
acquittal, and the prisoner was free."

§ 808. The longer the prior tension the more sudden and com-
plete the crash. When Dr. Webster was brought by the -Webster's
police to the medical college, where for so many days he c'^'^^-
had with great external composure been covering up the proofs of
his guilt, his whole system, at the recurrence of the scene under
these new auspices, gave way. " He seemed," said one of the
witnesses, " like a mad creature. When the water was put toward
him, he would snap at it with his teeth, and push it away with great
violence, without drinking, as if it were offensive to him."^ " Dr.
Webster appeared to be very much agitated," says another ; " sweat
very much, and the tears and sweat ran down his cheeks as fast as
they could drop."^ " The perspiration was so excessive as to wet
through his clothing. "^

§ 809. Richard Weston was sub-keeper of the tower at the time
of the poisoning of Sir Thomas Overbury. He was the westoii's
first person tried for that crime. When the bill of in- '^'^®®-
dictment was returned, as we learn from Mr. Amos's " Great
Oyer," all eyes were turned to the bar, where the wretched
prisoner was brought up. He was a man of about sixty years of
age. His forehead was wrinkled with age, his hair sprinkled with
gray. His countenance, though not wanting in a certain degree of

' Bemis's Report of the Webster 2 Ibid. pp. 120, 121.
Case, p. 60. 3 ibjd. p. 193.

733

§ 810.] MENTAL UNSOUNDNESS CONSIDEEED PSYCHOLOaiCALLT.

comeliness, had a stern and grim expression, and was now distorted
with terror. His face was deadly pale, his lips quivei'ed, and his
knees tottered as he stood at the bar while the indictment was read.
It charged him with having murdered Sir Thomas Overbury in the
Tower of London by administering various poisons — rosalgar, white
arsenic, and mercury sublimate — on four diflFerent occasions. The
prisoner was then asked, in the usual form, whether he was guilty
of the murder, yea, or no. The poor wretch, instead of answering,
became agitated, and in his distress screamed several times, " Lord
have mercy on me ; Lord have mercy on me." At length he
stammered out, " Not guilty." But, when asked how he would be
tried, instead of answering in the usual form, " By God and my
country," he exclaimed he referred himself to God — he would be
tried by God alone. And though the chief justice spent an hour
in persuading him to put himself upon his country, he could get no
other answer out of him than that he referred himself to God.

§ 810. The Earl of Essex was the last favorite of Queen Eliza-
Queen beth. Young, brilliant, of remarkable fascination both
Elizabeth. ^^^ person and mind, he held, on the queen's affections,
hereditary claims of which his personal graces may well have re-
minded her. For — except the two Careys — he was her only male
relative on her mother's side ; and, as she looked on his handsome
person, and studied his ardent though inconsistent character — bold,
rather than courageous — dashing, but inconsequent — chivalric in
bearing, yet not always generous in heart — she could not but
recognize the defects as well as the graces of her kinsmen of the
Boleyn blood. Then, besides, his father had served her at the time
when her faithful servants were few, and it was one of her prin-
ciples ever to be true not only to those who had been true to her,
but to their children. But even Elizabeth's constancy might be
overstrained. To almost more than womanly weakness in domestic
life, she added more than masculine severity in matters of state.
She became piqued with Essex's waywardness to her personally, and
permitted herself, upon his failure in his Irish campaigns, not only
to rebuke but to degrade him. The favorite was stung to the quick,
and rushed into a desperate scheme to forcibly change the adminis-
tration. He was tried and sentenced to be executed. Then came
with her the struggle. ^Yhatever may have been her relations to
him, she loved him still too affectionately, and had, by her indul-
734

PSYCHICAL INDICATIONS AFTER CRIME. [§ 811.

gence, given too large a margin to his excesses, to permit her to
consent to his death. That he should die she never intended. But
"with that singular and cruel waywardness by which her Tudor
blood and her woman's caprice were alike shown, her plan seemed
to have been to have humbled her favorite until she brought him to
her feet as a devoted suppliant, once more to be fastened to her
person, as one who first could give life and then renew prosperity.
To this plan one thing was needed on Essex's part. Elizabeth had
given him a ring which he was to send to her whenever he was in
straits, and which, she had given him her word, should bring back
from her a free pardon. The death-warrant had issued, and she
passionately waited for the ring. She recalled the warrant to give
more time, but no sign Avas made by Essex. The sentence of his
peers hung over him — he asked not to have it remitted — and at last
the queen let the axe fall.

Two years passed of eminent prosperity. The Spaniards were
finally repulsed, the Irish subdued, a firm alliance was secured with
France, and England was placed at the head of the Protestant
poAvers. Elizabeth had apparently deadened all recollection of
Essex. But on the death-bed of the Countess of Nottingham, a
scene took place which brought back the old love with all the addi-
tional poAvers of remorse. It appeared that Essex had reserved the
ring for his last extremity, and then had given it — to folloAV Hume's
incomparable narrative — " to the Countess of Nottingham, Avhom he
desired to hand it to the queen. The countess was prevailed on by
her husband, the mortal enemy of Essex, not to execute the commis-
sion ; and Elizabeth, who still expected that her favorite Avould
make this last appeal to her tenderness, and who ascribed the
neglect of it to his invincible obstinacy, was, after much delay and
many internal combats, pushed by resentment and policy to sign the
warrant for his execution. The Countess of Nottingham, falling
into sickness, and aftected with the near approach of death, Avas
seized Avith remorse for her conduct ; and, having obtained a visit
from the queen, she craved her pardon, and revealed to her the
fatal secret. The queen, astonished Avith this incident, burst into a
furious passion. She shook the dying countess in her bed ; and,
crying to her that God miglit pardon her, hut she never could, she
broke from her, and thenceforth resigned herself over to the deepest
and most incurable melancholy. She rejected all consolation. She

735

§ 811.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

even refused food and sustenance ; and, throwing herself on the
floor, she remained sullen and immovable, feeding her thoughts on
her afflictions, and declaring life and existence an insufferable burden
to her. Few words she uttered, and they were all expressive of
some inw^ard grief which she cared not to reveal. But sighs and
groans were the chief vent which she gave to her despondency, and
which, though they discovered her sorrows, were never able to ease
or assuage them. Ten days and nights she lay upon the carpet,
leaning on cushions which her maids brought her ; and her physi-
cians could not persuade her to allow herself to be put to bed, much
less to make trial of any remedies which they prescribed to her."
And then came death.

§ 811. Wounds or mutilations self-inflicted for the purpose of

turning on others an alleged crime, are peculiarly open

fr^mln^^ to the same criticism. They are inflicted usually with a

stiDctive falterine hand: and, even when this is not the case, they
faltering or ,^ ' .' . . ■,-,.■.

seif-in- can Only operate within a certain range, and under limi-

wounds. tations which point to the cause by which they are pro-
duced.^ We have an illustration to this effect in the nar-
rative given by Mr. Curtis in his Life of Mr. Webster : " Goodridge
was a person of previous good character and respectable standing,
who professed to have been robbed of a large sum of money at
about nine o'clock in the night of December 19, 1816, on the road
between Exeter and Newburyport, soon after passing the Essex
Merrimac Bridge on his Avay from New Hampshire into Massa-
chusetts. Among the proofs of the robbery was a pistol-shot
through his left hand, received, as he said, before the robbers
pulled him from his horse, he and one of his assailants discharging
their pistols at each other on the same instant. He was then,
according to his account, dragged from his horse and across a fence
into a field, robbed and beaten until he was senseless. On his re-
covery he went back to the toll-house on the bridge, where he
appeared to be for a time in a state of delirium. But he had suffi-
cient self-possession to return to the place of the robbery with
some persons who accompanied him with a lantern, where his
watch, papers, and other articles Avere found scattered on the
ground. On the following day he went to Newburyport, and re-

• Wh. Crim. Ev. 9tli ed. § 781.

736

PSYCHICAL INDICATIONS AFTER CRIME. [§ 811.

mained there ill, at intervals in a state of real or simulated frenzy,
for several weeks. Having regained his health, he set about the
discovery of the robbers ; and so general was the sympathy for
him in a very orderly community that his plans were aided by the
innocent zeal of nearly the whole countryside. His first charge
was against the Kennistons, two poor men who dwelt in the town
of New Market, N. H., on the other side of the river. In their
cellar he found a piece of gold, which he identified by a mark
which he said he placed on all his money, and a $10 note which he
also identified as his own. The Kennistons were arrested, examined,
and held for trial. He next charged the toll-gatherer, one Pearson,
as an accomplice ; and on his premises, with the aid of a witch-
hazel conjuror, he also found some of his gold and papers in which
it had been wrapped. Pearson was arrested, examined before two
magistrates, and discharged. Goodridge then complained against
one Taber, a person who lived in Boston. Finally he followed a
man named Jackson to the city of New York, in whose house he
swore that he also discovered some of his marked wrappers. The
machinery of an executive requisition was put into motion, and
Jackman was brought into Massachusetts, and lodged in jail. He
and Taber and the Kennistons were then indicted for robbery in
the county of Essex. So cunningly had this man contrived his
story that the popular belief was entirely with him. The witch-
hazel of his evidence probably did not disincline the populace to
believe him. But it is even said that there were few members of
the county bar who did not regard the case of the Kennistons as
desperate. There were some, however, who believed Goodridge's
story to be false, and these persons sent for Mr. Webster to under-
take the defence of the accused. The indictment against Taber
was nol. pressed. That against the Kennistons came on for trial
at Ipswich in April,»1817. They had nothing on which to rely but
their previous good character and the negative fact that since the
supposed robbery they had not passed any money, nor were seen
to have any, and the improbabilities which their advocate could
develop in the story of Goodridge. The theory of the defence
was that Goodridge was his own robber, and had fired the pistol
shot though his hand. — In the power of cross-examining wit-
nesses Mr. Webster had no superior of the day, and his reputation
in this respect doubtless aided the impression which he produced
VOL. I.— 47 737

§ 811.] MENTAL UNSOUNDNESS CONSIDEBED PSYCHOLOGICALLY.

upon the juvy. — There were traditions which had come over the
border from New Hampshire of his terrible skill in baffling the
deepest plans of perjury and fraud, which excited the jury to the
closest attention to his method of dealing with Goodridge. They
?aw his well-concocted story laid bare in all its improbable features,
while every aid was given to him by Mr. Webster to develop sug-
gestions which could be set off against the theory that the latter
meant to maintain. But when all the evidence for and against
Goodridge's narrative had been drawn out, and it came to the
summing up, there remained two obvious difficulties in the way of
that hypothesis. One of them was that no motive had been shown
for so strange an act as a man's falsely pretending to have been
robbed, and charging the robbery upon innocent people ; the other
that the theory of Goodridge being himself a robber apparently
made it necessary to believe that he had proceeded in this fraudu-
lent manufacture of proofs to the extremity of shooting a pistol
bullet through his own hand. These were very formidable difficulties,
for the law of evidence, as administered in our criminal jurispru-
dence, very properly regards the absence of motive for an act, the
commission of which depends on circumstantial proof, as one of the
important things to be weighed in favor of innocence ; and as to
the shooting, it was certainly in a high degree improbable that a
man Avould maim himself in order to maintain a false statement
that he had been robbed and maimed by some one else. But in
grappling with these difficulties, Mr. Webster told the jury that
the range of human motives is almost infinite ; that a desire to
avoid payment of his debts, if he owed debts, or a whimsical ambi-
tion for distinction might have been at the bottom of Goodridge's
conduct, and that having once announced himself to a community
as a man who had been robbed of a large sum and beaten nearly
to death, he had to go on and charge somebody with the act. This
was correct reasoning, but still no motive had been shown for the
original pretence ; and if there had not been some decisive circum-
stances developed on the evidence, it is not easy to say how this
case ought to have been decided. These circumstances make it
necessary to believe that, although Goodridge had himself dis-
charged the pistol which wounded him, he intended that result.
His story was that the pistol of the robber went off at the moment
when he grasped it with his left hand. Yet according to the testi-
738

» PSYCHICAL INDICATIONS AFTER GRIME. [§ 812.

mony of the physicians who attended him, there were no marks
qfpoivder on his hand; and the appearance of the wound led to the
conclusion that the muzzle of the pistol must have been three or
four feet from, his hand, while there were marks of powder on the
sleeve of his coat, and the ball passed through the coat as well as
the hand. This state of evidence justified Mr. Webster's remark
that ' all exhibitions are subject to accidents ; whether serious or
farcical, they do not always proceed exactly as they ought to do.'
Goodridge, he argued, intended to shoot the ball through his coat
sleeve, and it accidentally perforated his hand also. Goodridge,
however, returned to the charge. Jackman was put on trial at the
next term of the court, and the jury disagreed. At the second
trial Mr. Webster defended him, and he was acquitted. These
criminal proceedings were followed by an action for malicious
prosecution, instituted by Pearson against Goodridge. Mr. Web-
ster was a counsel for the plaintiff in this case. The evidence was
now still more clear against Goodridge ; a verdict for a large sum
was recovered against him, and the public at last saw the fact judi-
cially established that he had robbed himself. He left New Eng-
land a disgraced man ; but no clue to his motive was ever dis-
covered. Twenty years afterwards Mr. Webster was travelling in
the western part of the State of New York ; he stopped at a
tavern, and went in to ask for a glass of water. The man behind
the counter exhibited great agitation as the traveller approached
him, and when he placed the glass of w^ater before Mr. Webster,
his hand trembled violently, but he did not speak. Mr. Webster
drank the water, turned without saying another word, and reentered
his carriage. The man was Goodridge." — In the same line maybe
mentioned the alleged self-mutilation of Whitaker, claimed to have
taken place at West Point in 1880.^

3. Mo7-bid propensity to recur to scene and topic of guilt.

§ 812. There are certain abnormal states of the nervous organism
in which the propensity to commit a desperate act is T^■ ,

, "^ ^ Disclosures

almost irresistible. There are few who have not felt thus pro-
this when standing on a tower or on the brink of a preci-

' See Wh. Cr. Ev. 8tli ed. §§ 754, 849, where this remarkable case is more par-
ticularly examined.

739

§ 815.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

pice. A strange curdling runs and quivers through the veins, an
impulse to break this mystery of life, and desperately to face what
stands beyond. There are few great criminals who have not borne
witness to the same propensity. They are ever on the precipice-
brink of discovery, and often comes this convulsive impulse, to
throw themselves, blood-stained and confessing, into the chasm be-
low. And even when this is not consummated, there is a strange
fascination which makes them flit over the scene and topics. The
impulse is to get as near to the edge as they can without toppling
over.

§ 813. This impulse, working in a mind of peculiar delicacy and
Eug-ene Culture, betrayed itself in Eugene Aram's case in a series
Aram'scase ^f refined and oblique allusions to acts of guilt, such as
that of which he had been the perpetrator. His mind hovered and
quivered over the topic, assuming and expressing itself in varied fan-
tastic shapes, often flitting apparently away, but floating again from
the same spot, as would an exhalation from some hidden pernicious
mine. So showed the evidence on the trial, which is paraphrased,
with extraordinary psychological accuracy, in Hood's famous poem.

§ 814. Among coarser minds the same propensity exhibits itself
Robinson's '^^ the affectation of jocularity and rude jest. Thus
case. Robinson, who was tried for the murder of Suydam,

whose body was found under the front basement floor of Robinson's
house, remarked, two days before the discovery, to a carpenter who
found him, with a hoe, dragging the earth in the back basement, as
if he had been getting out sand for the masons, " Here's where I
was going to poke Suydam under ;" adding that " he had not time
to do it." This was tossed off" as a joke, and may perhaps be re-
garded as an artifice to divert attention. But it arose more probably
from a morbid propensity impelling the murderer to dwell in
language on the topic which was to him at once so perilous and so
engrossing.

§ 815. The same peculiarity was observable in Nancy Farrer's
Farrer's case. Whether or no that remarkable woman was tech-
*^^^- nically responsible it is not proposed now to consider.

Conceding, however, that she was insane (and to this effect went the
last verdict taken in her case), she had a vein of shrewd cunning
running through her which enabled her to shelter herself from sus-
picion during two successive groups of poisonings. There were the
740

PSYCHICAL INDICATIONS AFTER CRIME. [§ 816.

same precautions as taken bj other criminals to deaden surprise by
intimations of the ill health of her intended victims — the same asser-
tions of constitutional tendency to these particular symptoms. And
with this there was the same subsequent hovering of the mind over
the scene of guilt. Thus, after the death of " Johnny," one of the
children whom she was employed to nurse, and whom she had poi-
soned, she was found " excited and anxious if any two were talking,
to get close to them, and to wish to know what they were saying."
And then came one of those strange convulsive confessions such as
that in Robinson's case — confessions in which the truth is thrown
out as if it were too hot for the heart to hold, and yet at the same
time put forth as if it Avere a joke, so as to relieve the mind of him
that speaks from the solitude of this awful secret, and yet not too
boldly proclaim guilt. Nancy told a witness, after the death of one
of the children, " how lucky she was with sick folks ; they all died
in her hands." The witness saying, " May be you killed them ;"
she said, " May be I did." " She seemed to be joking — seemed to
be smiling — seemed to be very careless about it."^

4. Permanent mental wretchedness.^

§ 816. We may pass the case of a tender conscience, which com-
mits a heinous act inconsiderately, or under force of

, , • ^ ^ • , , 1 1 Extinction

Strong temptation, and then is stung by bitter and endur- of con-
ing remorse. These cases may be said to be exceptional. rarT*^^
We may be told, and perhaps truly, that the majority of
great crimes are committed by men whose hearts are so rigid and
callous as to give no sign of a troubled conscience. The sun, on
the day after the crime, shines upon a face just as hard as that on
which he shone the day before. Blood cannot stain a skin already
black with guilt. No man is suddenly a great criminal. He be-
comes so, it is argued, by long and slow processes, during which all
the impressible elements of the heart are hardened and solidified.

Now this may be all true, and yet common observation tells us
that there are certain types of character among which ci priori we
are accustomed to look for the perpetrator of some great crime.
And this rigidity of heart is one of these. This, in itself, may give

> Farrer v. State, 2 Ohio St. R. (N. « See supra, § 406.
S.) 64.

741

§ 818.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

a faint though definite psychological presumption. But it is
questionable whether there are any characters in which this type
is permanent.

§ 817. " To my mind," says Dr. Maudsley, an eminent London
Memory physician whose prejudices are far from being in favor
permanent. Qf gupernaturalism,^ " there are incontrovertible reasons
to conclude that the organic conditions of memory are the same in
the supreme centres of thought as they are in the lower centres of
sensation and of reflex action. Accordingly, in a brain that is not
disorganized by injury or disease, the organic registrations are
never actually forgotten, but endure while life lasts ; no wave of
oblivion can efface their characters. Consciousness, it is true, may
be impotent to recall them ; but a fever, a blow on the head, a
poison in the blood, a dream, the agony of drowning, the hour of
death, rending the veil between our present consciousness and these
inscriptions, will sometimes call vividly back, in a momentary flash,
and call back, too, with all the feelings of the original experience,
much that seemed to have vanished from the mind forever. In the
deepest and most secret recesses of mind, there is nothing hidden
from the individual self, or from others, which may not. be thus
some time accidentally revealed ; so that it might well be that, as
De Quincey surmised, the opening of the book at the day of judg-
ment shall be the unfolding of the everlasting scroll of memory."

§ 818. " Something was wrong with him. My suspicion Avas
Conscience aroused by his troubled sleep." This is the frequent
autocratic, answer to the question as to what put the witness first on
the watch. Shakspeare makes Lady Macbeth's great secret vent
itself in this way, and to attract very much the same observation
from by-standers. And this, in fact, is but in obedience to one of
those divine sanctions by which crime is made in part its own
avenger. " There are violent and convulsive movements of self-
reproach," says Dr. McCosh, " which will at times break in upon
the self-satisfaction of the most complacent. Man's peace is in this
respect like the sultry heat of a summer's day ; it is close and dis-
agreeable at the time, and ever liable to be broken in upon by the
thunders and tempests of divine indignation. Even in the case of
those who are anxious to keep their attention turned away as much

• Body and Mind, London, 1870, p. 21.

742

PSYCHICAL INDICATIONS AFTER CRIME. [§ 819.

as possible from themselves, and as little as possible upon the state
of their hearts, there will occur intervals unfilled up between the
scenes that express them, and on these occasions there will be
recollections called up which occasion the keenest misery. It may-
be after a day of selfish business, or an evening of sinful excite-
ment, that such unwelcomed visitations are paid to them to disturb
their rest, while others have buried their cares in the forgetfulness
of sleep. Or it may be in the time of disease, or in the prospect of
death, that the ghosts of deeds committed long ago spring up as
from the grave. These gloomy fears, proceeding from conscious
guilt, always rise up like a ghostly apparition, never in the sun-
shine of prosperity, but always in the gloom of adversity, to render
the darkness more horrific."

" In other cases, the troubling of the conscience is produced, we
can scarcely tell how, by the state of the nervous system, or by an
accidental event, recalling the deed committed to oblivion, or by a
sudden flashing of some willingly forgotten scene upon the mind,
revealing, like the lightning's glare at night, dreadful depths of
darkness. In regard to such phenomena we may know what are
the general laws ; though it may be as difficult to explain the
specific causes as it is to tell the immediate cause of the raising this
gust of wind, or of this cloudy atmosphere, of both of which we may
know perfectly what are the general means of their production."

' ' 0 coward conscience ! how dost thou afflict me !
The lights burn blue. Is it not dead midnight ?
Cold fearful drops stand on my trembling flesh.
What ! do I fear myself? There 's none else by."

Pdch. III. Act. V. Scene 3.

§ 819. M. Guillon relates the following remarkable case : " The

Chevalier de S had been engaged in seventeen mustra-

' affairs of honor,' in each of which his adversary fell. *^°"^-
But the images of his murdered rivals began to haunt him night
and day : and at length he fancied he heard nothing but the wail-
ings and upbraidings of seventeen families — one demanding a father,
another a son, another a brother, another a husband, etc. Har-
assed by these imaginary followers, he incarcerated himself in the
monastery of La Trappe ; but the French revolution threw open
this asylum, and turned the Chevalier once more into the world.
He was now no longer able to bear the remorse of his own con-

743

§ 820.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

science, or, as he imagined, the sight of seventeen murdered men,
and therefore put himself to death. It is evident that insanity was
the consequence of the remorse, and the cause of the suicide."

Mr. de Quincey, in one of the volumes of his literary reminis-
cences, thus speaks of a duel between Colonel Montgomery and
Captain Macnamara : —

" The colonel, as is well known, a very elegant and generous
young man, fell ; and Captain Macnamara had thenceforward a
worm at his heart, whose gnaAvings never died. He was a post-
captain ; and my brother afterwards sailed with him in quality of
midshipman. From him I have often heard affecting instances of
the degree in which the pangs of remorse had availed to make one
of the bravest men in the service a mere panic-haunted, and, in a
moral sense, almost paralytic wreck. He that, whilst his hand was
unstained with blood, would have faced an army of fiends in dis-
charge of his duty, now fancied danger in every common rock-
ing of a boat ; he made himself, at times, the subject of laughter
at the messes of the junior and more thoughtless officers ; and his
hand, whenever he had occasion to handle the spy-glass, shook (to
use the common image), or rather shivered, like an aspen tree !"

§ 820. Extraneous circumstances may evoke this involuntary
Latent con- remorse. The culprit may form around him his own
^?°uiit\^n atmosphere, which will impart for a while its tinge to
voluntarily his conduct. He mav, by a powerful effort of imagina-

awakened . „ , . ' 7. . . 1 n • ■

byextrane- tion, create lor himseli fictitious wrongs and fictitious
cumstan- justification. Suddenly, however, comes a rude touch
^^^- and dissolves the whole fabric. Heretofore he believed

himself a hero, or an instrument of inexorable fate. Now he sees
himself a murderer, cruel and loathsome, and a spasmodic cry of
agony escapes his lips, or insanity, or suicide, or, what may be
worse than either, a dull and incurable despair, closes his life.

The independent existence of this latent consciousness of guilt is
shown by the fact that it is called into action by events over which
the will has no control. It is not the creation of a diseased brain.
It is not the result of a morbid self-introspection. Were it either
of these, the will could recall it, or perhaps again banish it. But
it is produced arbitrarily and convulsively by circumstances with
which the will has nothing to do. The sudden sight of a ring
belonging to one whom Queen Elizabeth had loved but sacrificed,
744

PSYCHICAL INDICATIONS AFTER CRIME. [§ 822.

threw, as we have seen, that proud and self-poised Avoman into
an agony of demonstrative remorse. The countess of Somerset,
who had borne herself with such consummate self-possession and
tact during the prior periods of the prosecution, screamed with
terror at the prospect of being taken to sleep in the room of Sir
Thomas Overbury, whom she had poisoned. Nor are these cases
unfamiliar to our every-day observation. A little locket, a lock of
hair, a faded rose, a ribbon, taken from the person of one who has
been loved and lost, will recall a passionate torrent of long-buried
grief. We may have been, a moment before, calm or buoyant. If
we had been able to exercise our own will, we would have banished
these memories finally. But now, without our agency, they burst
upon us and overwhelm us.

§ 821. How corrosive is remorse, even when crime is undetected,
is illustrated by the case of John Sadleir, whose forge- s^dieir's
ries startled London a few years ago. " A highly re- case.
spectable solicitor, who was himself engaged in London, received
one night from a correspondent in Dublin a telegraphic dispatch

which merely said, ' All wrong about • 's mortgage ; I will

write by post.' Sadleir, who saw the dispatch, immediately con-
ceived that it alluded to one of his forgeries, and that he was on
the point of being discovered. Without saying a word, he went
home, and on his road purchased a quantity of essential oil of
almonds ; and the same night committed suicide. How great must
have been the mental torture this wretched man had endured for
some time previous to his committing this rash act may be judged
from the fact that the coats of his stomach were impregnated with
opium ; and it was afterwards discovered that, from the constant
use of the drug, the quantity he was obliged to take in order to
procure a few hours' sleep was enough to have killed an ordinary
person. For some time before his decease he seemed scarcely
capable of fixing his mind for five minutes upon one continuous sub-
ject— his eye was incessantly turning with a haggard expression,
and he was totally unconscious of the matter under discussion."^

§ 822. There is a feature, however, in respect to a consciousness
of guilt thus produced, that distinguishes it from a suddenly re-
called grief. The latter reproduces merely a past memory, the

J Good Words, 1866, p. 467.

745

§ 823.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

former a present reality. The recollection of the latter is, I was
Distinction ^^ TIME PAST SO and SO. The discoverj with the former

between ^g . J ^^ jjqW A CRIMINAL: I DID THAT DEED OF GUILT,

conscious-
ness of. syuilt Of this discovery there are but two or three consequences.

deniy re- One is confession, and the consequent relief from a com-
caiied grief paratively unburdenedconscience. Another is a continued
condition of misery. A third is the stupor or hardness which is so
common an attribute of old criminals. Either of these is a posi-
tive psychical condition, as much the subject of ascertainment as
are the types or phases of the physical condition.

§ 823. When death is voluntarily encountered, by an intelligent
Diso-uised ^^^1^5 i"^ Order to avoid the disgrace and penalties of dis-
suicide is covered crime, it is an impressive illustration of the great
nitionljf ethical truth we have now under consideration. This is
standard of peculiarly the case when the death sought for this pur-
rigiit. pQgg jg ^ death skilfully disguised in advance by the

criminal himself, in order to preserve his reputation. The con-
fession here is twofold ; there is a confession that a wrong has
been done whose discovery the wrong-doer is unable to endure, and
a confession that the suicide itself is a wrong which must on its own
account be covered up. The stratagems resorted to for this pur-
pose are of peculiar importance in our present inquiry, for they are
not contrived for the purpose of shielding self, since they can only,
if effective, operate when the person designing them is out of the
range of human censure or human discipline. They are the pro-
duction, therefore, not of fear, nor of interest, but of a desire, in
part, to retain a reputation heretofore untarnished, in part to save
the feelings of surviving friends. In proportion to the ingenuity
and complication of such contrivances, they illustrate a conscious-
ness of the disgrace attending not merely the discovery of wrong,
but the exposure of suicidal attempts to evade such discovery. The
suicides which are undisguised efforts at the evasion of punishment
are undoubtedly impressive confessions of guilt; but they are far
less impressive than the disguised suicide, which involves the con-
fession of the wrongfulness of the confession itself. The undis-
guised suicide, also, may be the work of sudden impulse, or of brutal
indifference to life and reputation ; not so the disguised suicide,
brooded over with often protracted suspense, and in solitary agoniz-
ing deliberation and circumspection. Such a suicide is not, indeed,
746

PSYCHICAL INDICATIONS AFTER CRIME. [§ 823.

a testimony to the power of conscience in the breast of the wrong-
doer himself, unless we suppose him dead to the sense of justice in
the world to come, and having a conscience only for this life ; but
it is a testimony, and that the strongest that individual recognition
can give, to the existence of a public conscience which makes dis-
covered crime a curse to the criminal himself. — In this light we
notice, in detail, a remarkable case of alleged suicide which took
place in the village of Dexter, Maine, in February, 1879 ; the facts
being condensed from an elaborate report in the Boston Daily
Advertiser of February 1, 1879 : —

On the morning of the 22d of February, 1878, Mr. James Wilson
Barron, cashier of the Dexter Savings Bank, left home, saying to
his wife that he had business which would probably detain him until
three o'clock in the afternoon ; that he should not be home until
then, and that he had his town report to make out, he being at the
time town treasurer. He had promised to meet ]Mrs. A., a depositor,
at the bank that morning for the purpose of settling her accounts, for-
getting at the time the promise was made that the day was a holi-
day. Mrs. A. went to the bank at the time specified ; but not
finding Mr. Barron there, called upon him at his home. After
some conversation, he started with her for the bank, making the
remark above quoted to his wife upon leaving the house. Mrs. A.'s
account amounted to $100, and upon arriving at the banking rooms,
Mr. Barron informed her that there was not money enough in the
bank at that time to pay her ; but, that if she would accept a check
for $200 he would pay the remainder in money. To this proposi-
tion she agreed ; and Mr. Barron immediately left the bank, went out
upon the street, and borrowed of the town tax collector the sum of
$250. Of this sum $200 was given Mrs. A. in settlement of her
account, the remainder being charged on the books of the bank as
having been paid out on town orders. The transaction of this
business occupied his time until twelve o'clock. During the after-
noon Mr. H. C. Parsons, an insurance agent, who hired desk-room
in the bank, was at his desk writing letters. He had occasion to
leave the banking room twice during the afternoon, but at twenty
minutes of five, having finished his business, he left the room
finally, leaving Mr. Barron, who had been in the bank all the after-
noon, sitting upon a stool, apparently engaged in figuring. At the
time Mr. Parsons left, the doors of the safe were unlocked. Upon

747

§ 823.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

leaving, he locked the door leading from the bank into the corridor
and started for home. As subsequent developments proved, he was
the last person who saw Mr. Barron before he was found in a dying
condition within the vault two hours subsequently. Between six
and seven o'clock, her husband not having made his appearance,
Mrs. Barron became anxious, and a search was instituted.

" A. F. Bradbury, Esq., was first visited. The efforts to secure
an entrance through the door leading to the savings bank were un-
successful. It was then suggested by Mr. Curtis, cashier of the
Dexter National Bank (which is in the same building and on the
same floor with the savings bank), that, as the safes of both banks
were in the same vault, with only ten inches of space between them,
by entering the last-named bank and opening the doors of the vault
they might' be able to ascertain whether or not Mr. Barron was in
the adjoining room. The suggestion was acted upon. On opening
the outer doors of the vault, the visitors heard heavy breathing,
which evidently came from the other side of the vault.

" One of the visitors, named Crowell, forced his way into the vault
of the savings bank, and reported that Mr. Barron was lying upon the
floor of the vault, with his head resting upon the edge of a small
trunk, with a gag in his mouth, and his hands fastened behind him
with a pair of Tower's patent ratchet handcuffs. Crowell cut the
string with which the gag was fastened, and with the dying man
was forced through the space between the safes and into the vault
of the national bank, from which he was removed to the banking-
room and medical assistance summoned, which was soon obtained,
the patient remaining insensible. His breathing was very heavy,
and, after several fainting fits, he died at a little before five o'clock
the next morning. After being removed from the vault, a slight
scratch was found on the forehead, another under the left eye, and
a slight purple mark under the right ear and another on the back
of the neck. There was also a swelling on one side of the head,
over the temple. One singular fact was that, with all the marks,
there was no abrasion of the skin discovered, and not a drop of
blood anywhere to be seen. There were no marks of choking upon
his throat, and no evidence of any violence having been used in
putting the gag in his mouth. Soon after his removal from the
vault, the door leading to the savings bank was forced open, and
an examination made of the outer door of the vault, which fastened
748

PSYCHICAL INDICATIONS AFTER CRIME. [§ 823.

Avith a combination lock. This was opened by Mr. Curtis, who
knew the combination, and the inner doors of the safe Avere also
found securely locked. The questions next to be decided were,
how did Mr. Barron come to his death ? and how did he get into
the vault ?"

In solving this question the following facts are to be noted : In
the room leading from the place in which the banking business was
transacted, the key to the handcuffs was found ; and in a pile of
rubbish in one corner of this room his bunch of keys. Among
them was a key to the inside door of the vault, one to the outside,
or door leading into the street, a key to the door opening into the
banking-rooms, keys to three doors in Masonic hall, located in the
top of the building, besides several other keys belonging to differ-
ent parts of the building. A door at the head of the stairs leading
to Masonic hall was found open, as were also three other doors
leading through the hall. A window in the rear room was found
open, and the iron shutters were swung open. On the floor of this
room, which was used for the storage of coal, a coal-hod was found
tipped over' on its side. Four feet from the coal-hod Mr. Barron's
false teeth were discovered, and exactly four feet from the teeth his
pen and holder were found lying on the floor. The first view of
these articles seems to indicate that he was coming from the coal-bin,
with the coal-hod in his hand, at the time an attack was made upon
him. "' In the drawers in the counter were found $15 and a few
cents. On the counter Avas found a dividend statement Avhich was
made out on the 1st of January, settled up and carried to the
accounts of different depositors. In addition to this statement the
general deposit book was also found upon the counter. Besides
the $15 in the money drawer, there were $100 worth of revenue
stamps in one pigeon-hole in the inside safe, $15 in money in
another, and $35 in still another. It was also a noticeable fact
that there was no trace of thieves having been in the bank ; not
even a tool had been left behind by the supposed murderer or mur-
derers."

An examination of the cash-book, as it was balanced up to that
day, showed the cash account to be correct, and that on the day
the supposed murder was committed there ought to have been
$1600 on hand. It was supposed that amount had been taken by
the robbers, as there was only $15 in the money-drawer at the

749

§ 823.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

time Barron was found. Included in the $1600 was a $500 bond,
which was entered on the cash-book as having been received the
day previous, February 21. Detectives were employed, and on
their report, proceedings were instituted against a man named Hope
as concerned in the burglary. This, however, resulted in an ac-
quittal, there being no evidence of guilt.

So strong, however, was the public feeling that Barron had died
a martyr to duty that a subscription was made, mainly by the New
England bankers, and four thousand dollars collected as a tribute
to his family. Several important developments, however, operated
to stop this movement, and dispel the theory of burglary. On the
first of November, 1878, Mr. George Hamilton, the new cashier,
made up his statement to send to the bank examiner, W. W.
Bolster, Esq., and, never before having performed such a duty,
took, as a sample, the copy of the one made by Mr. Barron on the
previous year. In that copy the liabilities of the bank at that
time appeared to be $218,319.11. In looking over the deposit
book of that date, he discovered that on that day the actual liabili-
ties of the bank were $220,319.11, making an apparent deficit of
$2000 between the sworn statement and the actual liabilities, as
shown by the general deposit book and trial balance. On making
this discovery, they examined all the entries on the books from that
date back to October of the same year. On the 27th of October
it appeared by the trial balance, as made up by Mr. Barron, that
the liabilities were $219,663.51, which showed that the deficit
existed at that time. They also examined the cash books from
November 1, 1877, up to February 22, 1878, the tim.e of the sup-
posed murder, and ascertained that, if the entries on that book
were correct, there ought to have been about $1600 in the bank at
that time. Among the regular entries on the book, between the
two last-named dates, were found items of various amounts, aggre-
gating the sum of $1600, which, it will be perceived, just equals
the amount of money which should have been on hand at that time.
A sino-ular coincidence in connection with these entries was that

they were not entered on the general deposit book, and no record
of them appeared on the trial balance sheet. One of these items
was under date of February 21, and recorded the purchase of a
$500 United States bond ; but the margin, where the number of
the bond should appear, was blank. Neither did the number of
750

PSYCHICAL INDICATIONS AFTER CRIME. [§ 823.

the series appear in any portion of the book. A further examina-
tion showed that loans on collateral had been made to the amount
of $10,788.50, while from the general deposit book it would appear
that the true amount loaned on such security was $12,789.50,
showing, as before, a deficit of $2000.

Barron's last statement to the bank examiner was audited by
two of the trustees, Messrs. Dastin and Abbott, and, the books
agreeing with it, said statement was approved. By a more minute
examination the discovery was made that the figures 1 and 8 in
Barron's original statement had been erased, and the figures 2 and
0 substituted. It was further discovered that, in the sum charged
to loans on collateral securities, the figure 2 had been substituted
for the 0, making the sum loaned appear $12,789.50, instead of
$10,789.50. These erasures and alterations had evidently been
made after the statement had been audited.

Other alterations were subsequently discovered, and a Boston
detective named Dearborn called in. " The first suspicious circum-
stance appeared to be that the trays in which the cash was kept
still contained the sum of $16 when found lying upon the counter
the morning after the tragedy. In the safe, inside the vault, were
a number of pigeon-holes, in several of which various sums of money
and other valuables were found. One contained $100 worth of
revenue stamps, another $35 in bills, another $15, and still another
$20. Strange as it may seem, not a single dollar was missing, and
none of the papers had been disturbed. The safe doors were open,
but the steel chest inside the safe, containing the bank's securities,
and upon which there was a time-lock, was unmolested. These and
other developments convinced the detective that the work had not
been performed by thieves, and in confirmation of this belief, he
failed to learn that, on the day in question, any strangers had been
seen in or about Dexter, or that any strange teams had either
entered or left the town. An inspection of the gag found in Mr.
Barron's mouth still further served to dispel the theory of murder
and robbery. The gag was not at all such a one as a professional
thief would think for a moment of using, as it did not at all hinder
respiration, or prevent the victim from making an outcry. The
cord around Barron's neck was very clumsily contrived, and hung
loosely about his shoulders, while the cord by which the gag — the
wooden handle from the bail of a water-pail — was secured, proved

751

§ 823.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

to be nothing but a piece of common cotton twine in three strands.
Twine of this kind, it was shown, was in common use in the bank.
The cord found round Barron's neck, and with which he was sup-
posed to have been choked, could have been picked up in th.e bank.
It should be here stated that after the discovery of Mr. Barron in
the vault a window in the rear room, leading from the bank, was
found open. It was subsequently shown that this window had been
open all day."

Facts were developed from which it was inferred that it was im-
possible that the bank could in that afternoon have been entered by
burglars ; and the conclusion, not only of the detectives, but of the
bank officers, was that the late treasurer was not only a defaulter and
a perjurer, but that, with the aid of an accomplice, he had deliber-
ately planned and executed the whole scheme in order to save him-
self from inevitable exposure and the disgrace Avhich would follow. On
this theory they set to work with renewed energy, Barron's accounts
being $3600 short seeming to provide a substantial basis upon which
to establish the theory of suicide. It also appeared that Barron's
watch, chain, and pocket-book had not been disturbed. " There was
in the back room a coating of dust and ashes over the whole floor quite
thick. This coating was disturbed only in a direct line from the
door to the coal-bin, and had there been a scuffle there (where the
teeth, hod, and pen were found), there must, it is agreed, have been
evidence of it. There was no dirt of any kind upon his clothes,
and if he had been thrown down, with a dark suit on, there would
have been plenty of it." Eminent physicians who attended the
dying man united in holding that the death was caused by poison,
and not by the wounds found on the body. They testified further
that Barron must have entered the vault about five o'clock, and that
the effects noticeable were just such as would have been caused had
he taken eight or ten grains of morphia into his system. Had he
taken such a dose, death would naturally have ensued in about
twelve hours. They also said that if he had not taken any poison,
and had been in the vault with the gag in his mouth for two and
one-half hours, there Avould be no good reason why he should not
soon revive after being taken into the air.

No post-mortem examination was had, the family refusing to
permit it.

It has been ascertained that Mr. Barron had a quantity of drugs
752

PSYCHICAL INDICATIONS AFTER CRIME. [§ 823.

in his possession at the time of this aifair, and that at the top of the
bank building a little room was fitted up in which he was in the
habit of compounding medicines for one Dr. Fitzgerald, a clairvoy-
ant physician, residing in Dexter. The detectives could not recon-
cile themselves to the idea of his having had an accomplice, who
would naturally have been an interested party. The most difficult
question to decide, on the hypothesis of suicide, was how Barron
could have locked himself in the vault, leaving the keys where they
were found : on the floor of the room outside. " In making an ex-
amination of the inside of the vault. Detective Dearborn discovered
on the top of the safe a screw-driver and an old kerosene lamp,
which were (so said the present cashier) found in the vault on top of
the safe, after the discovery of Mr. Barron. Cashier Hamilton
said further that Mr. Barron had been in the habit of using the
screw-driver in removing locks, preparatory to oiling them. The
finding of the lamp and screw- driver proved the key to the mystery.
Upon learning this it occurred to the officers that Barron might
have locked himself in the vault, and, acting upon this idea, they
proceeded to experiment, with the assistance of Cashier Hamilton.
After one day's experimenting the officers demonstrated that Bar-
ron could have locked himself in. On the outer door of the vault
was a combination lock. This was held to the door on the inside
by a cap fastened by one, screw. The cap being removed, it was
easy to pull the door to, shove the bolts into place with the hand
from the inside, and then secure them by a finger manipulating the
bolt of the lock into its proper place. This done it was easy to re-
place the cap. Then the door was locked, and could not be opened
except from the outside, and then only by one who knew the com-
bination. Barron had that cap off frequently, in order to change
the combination, and knew all about the lock. It was claimed that
this could be done by working by the light of the kerosene lamp
above referred to. The second or inside door of the vault was
double, opening to right and left. It had a Yale lock upon the in-
side of one half. When the bolt of this was thrown out it held in
place upright bolts (which from the outside operated by a handle),
and prevented the one from being dropped and the other from being
raised. It was possible to remove this lock without a screw-driver,
and then throw the bolt in the lock by means of the key. If Bar-
ron did this, there is no reason why he coall not have put his keys
VOL. I.— 48 753

§ 823.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

where they were subsequently found, and leave them there, as he
could have locked this door from the inside without their further
use. Having done this, he could have closed the doors, put the
lock back in place, and thus fastened the door the same as if it had
been done with the key from the outside. This the officers did over
and over again, and this, they claim, Barron did. It was then a
very easy matter to extinguish the light, and place the lamp and
screw-driver where they were found — on the top of a small inner
safe. Next in order, probably, came the swallowing of the poison,
and the adjustment of rope and gag. To place the manacles upon
his wrists was a comparatively easy task. Everything being then
ready, all that remained was to lie down upon the floor and await
his now inevitable doom.

"After making this, to them, important discovery, the president,
cashier, and board of directors assembled at the bank, where -Mr.
Dearborn went through the entire operation, as described, in just
four and one-half minutes. An attempt was made to trace the hand-
cuffs, and it was learned that some six weeks or two months prior
to the 22d of February last, the date of the alleged tragedy, an
intimate friend of Mr. Barron, a police officer, was in the Dexter
savings bank consulting Mr. Barron on a matter of private business.
Incidentally the conversation turned upon the subject of bank bur-
glaries, and the method in which they were performed. These
interrogatories were propounded by Mr. Barron to his friend, whom
he knew to be an officer. The opinion requested was given by the
officer, so far as he possessed it, although it was a subject concern-
ing which he had no great amount of personal information. Finally
Mr. Barron spoke of handcuffs, and was shown a pair which the
officer had in his possession. These he examined with great minute-
ness, asking a variety of questions, receiving all the explanation
which the officer could give. He then tried the handcuffs upon his
own wrists. He finally asked where such could be procured, and
the officer told him that he knew of one place where they could be
purchased, and that was at the corner of Brattle and Washington
streets in Boston. The pair of manacles which the officer showed
to Barron were a sample of Tower's ratchet handcuffs, and the pair
found upon Barron's hands when he was discovered in his helpless
condition were identical with those that the officer had shown him."
It was also shown that, to have effected such a robbery by profes-
754

PSYCHICAL INDICATIONS AFTER CRIME. [§ 824.

sional burglars, four men would have been requisite ; while there
was no proof of the presence of any strangers in the village that
afternoon.

Abundant evidence was given that Mr. Barron was virtually
insolvent at his death, but that his life was largely insured for the
benefit of his family. The bank officials ascertained that on the
1st day of January, 1877, Mr. Barron discharged a mortgage on
his house of $2000. They also found that he began covering up
his tracks as far back as October, 1876 or 1877, by "doctoring"
his books.

In the drawer, in Barron's desk, was found a copy of the trial of
Scott and Dunlap, the Northampton bank robbers. It will be re-
membered that when that bank was robbed the cashier was taken
from his house, gagged, handcuffed, and partially choked by a rope
around his neck in order to compel him to open the doors of the bank.
The supposition is that Barron imitated as closely as he could the
modus ojyerandi of those ruffians. By his cash book it appears
that there ought to have been $520 in cash on hand, when in reality,
there was much less money in the bank, as has already been stated.
The theory thus presented is, that the impending disclosure of the
falsity of his statement to the bank examiner in November, 1877,
together with the suspension of the Newport Savings Bank the week
previous, and the knowledge in his possession that the Dexter Bank
could not stand a run, impelled. him to the commission of the fatal
deed. If the bank suspended, the examiner would be compelled to
investigate its affairs. The cashier would then be exposed as a
perjurer and defaulter. He stood so high in the community, having
occupied nearly every position of honor and trust in the town, that
the idea of being regarded as a criminal by his associates was, to a
man of his sensitive temperament, unbearable. To prevent such a
discovery, to secure the life insurance, and to enlist the sympathy
of the public, the scheme of robbery, it was alleged, was concocted.

5. Animosity among confederates.

§ 824. "He knows my secret, and I must dispatch him." " Be-
cause he fears my betraying him, he will try to get rid Tendency
of me." One of these feelings, and perhaps both, lurk rate'rto'^''^'
in the breast of the confederates in almost every joint disagree.

755

§ 824 a.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

secret crime. How dangerous is the possession of a political secret
in a despotic government, is evidenced to us in the many assassina-
tions by which fell the favorites of the French and English monarchs
of the seventeenth century.

But another and more subtle impulse sometimes intervenes to
work out the same result. It seems almost an invariable psycho-
logical rule that passionate love, producing crime, is followed by
passionate hatred. Take, for instance, the reign of James I., and
go to Lord Coke's great Oyer, which has been already more than
once referred to. Whether or no the Earl of Somerset was really
guilty of the consummated poisoning of Sir Thomas Overbury, may
perhaps be doubted. It is clear, however, that his countess caused
poison to be sent to the deceased to remove or punish his opposition
to her marriage, and that her husband was at least privy to her
designs. It is clear, also, that he must have known, if not partici-
pated in the nefarious plot by which his wife, as a preliminary to
her marriage with himself, was divorced from the Earl of Essex.
For by fraud, if not by bloodshed, as all England knew, was the
first marriage dissolved and the second secured. To make this
second marriage happy many outward circumstances conspired.
The earl and his countess were each remarkable for their beauty
and grace. They had wealth and station ; they loved each other
with a love which had torn asunder the most sacred barriers, and
had conquered almost unsurmountable difficulties ; but when they
at last met, they found an invisible obstacle between them which
they could not overcome. This was the consciousness of a common
crime. Their love was followed by hatred so intense, and by quar-
rels so bitter, that quiet was only secured by separation. For years
they lived in the same house with hearts so hostile that they in-
stinctively shrank from each other when they met. Aversion was
followed by divorce.

§ 824 a. The case of Udderzook,^ a case remarkable in many
other respects, furnished us with a striking instance of the inability
of confederates in crime to carry out their plans harmoniously.
William E. Udderzook and Winfield Scott Goss entered into a con-
spiracy to defraud certain insurance companies, and, having pro-
cured insurance on the life of the latter to a large amount, they

' Wh. on Horn. Appendix to 2d ed.

756

PSYCHICAL INDICATIONS AFTER, CRIME. [§ 824(2.

set fire to a frame shop in the city of Baltimore, in which shop Goss
was known to have been working, having first placed in the shop the
body of a man which bore a general resemblance to Goss. Upon
the discovery of this body, they relied for a case against the in-
surance company, and they were not mistaken, Goss's wife, his
stepfather, and his stepmother, all professing to recognize the body
as that of Goss, who, in the mean time, disappeared. The fire took
place in February, 18T2. Mrs. Goss sued the insurance companies
and obtained a verdict ; in the meantime Goss, who had been living
at Newark, N. J., under the name of A. C. Wilson, was induced to
hide himself at Jennerville, in Chester County, Pennsylvania, in
June, 1873. On the 11th of July, 1873, Gainer P. Moore discovered
in "Blair's Woods," near Penningtonville, in Chester County, the
body of a man " mysteriously hidden" under leaves, a thin covering
of earth and the dead limbs of trees. After being viewed by the
coroner, buried, and twice disinterred for examination by physicians,
it was decided that this was the body of Goss, alias Wilson ; and
at the August sessions of the Chester County Oyer and Terminer
of the same year, Udderzook was indicted by the grand jury for
his murder. At the trial, the Commonwealth proved the dissimilar-
ity between the characteristics of the body found in the burned
building in Baltimore, in 1872, and those of Goss, the identity of
Goss and Wilson, and the strong likeness of the body found by
Moore to the appearance of Goss ; several witnesses swore to
certain strong points of personal resemblance, and several inanimate
witnesses — a ring, bits of clothing, and the like — testified to similar
effect. It was shown that, on the 1st of July previous to the mur-
der, the prisoner left Jennerville in company with a man who bore
a strong resemblance to Goss or Wilson, and reached Pennington-
ville alone ; much other circumstantial evidence pointed to the
prisoner's guilt; and he was convicted and executed. Here, then,
was a case in which a conspiracy to obtain a very large sum of
money — Goss's life had been insured for $25,000 — was carefully
planned, ably executed, and nearly carried out to a successful
termination. There could be, apparently, no reason why the con-
federates, if the result of the suits they had procured to be brought
remained unchanged, should not have divided their plunder unde-
tected and in peace ; but the rapacity of Udderzook, or his inability
to come to a satisfactory agreement as to a division with Goss, led

757

§ 825.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

to the murder of Goss, and the subsequent discovery of the whole
dark transaction. So thoroughly imbued "was Uddei'zook with the
desire to get rid of Goss and pocket the money himself, that he
went to the length of proposing to his brother-in-law, Rhoades, to
induce Goss to make a journey to West Chester, and steal from
him money which he pretended Goss had, offering to guarantee
Rhoades SIOOO ; and not only this, but in defiance of the most
ordinary rules of caution, he wrote to Rhoades, making an appoint-
ment, and desiring him, in the most suspicious terms, to let no one
know of their meeting, but to join him without fail in an enterprise
in which there was, he said, " a cool $1000, and nothing to prevent
us from getting in." But Rhoades having failed him, "on the
evening of the same day," said Judge Butler in his charge to the
jury, " after the interview with Rhoades, as night was coming on,
the prisoner started, with the man by his side, in the direction of
Penningtonville. Baer's woods is about nine miles from the place
of starting, and in this direction the parties were going when last
seen. John Hurley, who lives within a short distance of the woods,
testifies that his wife in the night aroused him to hear a noise in
that direction, that he distinctly heard hallooing and distinguished
the voices of two individuals, but could not distinguish any expres-
sion except the exclamation, ' oh 1' " Udderzook arrived in Pen-
ningtonville at twelve that night. The carriage in which he returned
there was damaged and bloody. The homicide was detected by
the necessary incidents of its execution ; the fraud on the insurance
company was detected by the exposure of the homicide.

§ 825. The following striking remarks are from Mr. Hargraves's
"Honor (1871) curious work on "The Blunders of Vice and

among Follv." " On the other hand, what is the position of

thieves'"'

only when the confederate ? He, too, lives in constant apprehen-

ofTnTe:-es7 sion, for he knows that his employer has the strongest
remains. possible inducement to remove him in order that he may
extinguish the evidence of his guilt. He knows, also, that a man
who has instigated one misdeed will not hesitate at another ; and
still more, he perceives that his own destruction is a condition which
is essential to the secure enjoyment of the advantages arising from
the original offence. And thus they stand, eyeing each other with
alarm, like stags whose antlers have sometimes been found inter-
locked in some furious struggle, and for whom there is no release
758

PSYCHICAL INDICATIONS AFTER CRIME. [§ 826.

till death arrives ; for each remembers (and this is a most galling
element in the transaction), that, bj the very terms of the case,
both are to be destitute, of principle, and therefore neither can be
trusted for a single instant." Among illustrations of this may be
mentioned the assassination of Count Konigsmark by some Italian
desperadoes, whose employer, it is alleged, gave them a slow poison
before they started on their errand, so as to make sure that they
should not betray their secret.

" There is an old saying," continues the same author, " which
assumes that honor exists among thieves. Doubtless, some measure
of fellowship and freemasonry is to be found among the chevaliers
d' Industrie, whether their operations are conducted on a large or a
small scale. But it is only so long as a common interest binds them
together, and constrains them to unite for the avoidance of a com-
mon danger, that the slightest dependence can be placed on their
good faith. The man who proves himself a traitor to the com-
munity will rarely scruple to betray his comrade whenever a fitting
opportunity occurs, provided he can turn a few pounds by the
transaction. From Vidocq's Memoirs we learn that the regular
thieves of Paris showed no reluctance to assist the police in detect-
ing and exposing their professional brethren ; for some of them
were frequently employed by the officials in unearthing culprits,
and accepted the commission with pleasure, either in consideration
of the reward, or in the hope of securing a little indulgence for
themselves. He himself, whilst in prison, volunteered to act as a
spy upon his fellow convicts, and afterwards, when set at liberty,
entered into a compact with the police, at a fixed salary, to feed
justice with a stated number of rogues each year, in default of
which he was liable to be sent back to Brest."

§ 826. Poets have often dwelt upon this property of crime, but
by no jone has this been done with greater energy or fidelity to
truth than by Robert Browning. Ottima, an Italian woman, pur-
sues with the utmost passion an adulterous intercourse with a Ger-
man, Sebald. Together they murder her husband. Then comes
for a moment the passionate voluptuousness of guilty love in its full.
But while they are still in the flash of delight at the removal of the
obstacle to their undisturbed enjoyment, a country girl passes under
the window singino; a home song which brings them back to the
reality of the crime they have committed. It is the ordinary reac-

759

§ 828.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

tion produced on a morbid state of the brain by a single healthy
thought. Then fierce love is followed by fierce hatred, and death
by death. ^

§ 827. " The mutineers of the Bounty, after turning Bligh and
his eighteen companions adrift in a small boat in the midst of the
Southern Ocean, at the distance of 3600 miles from the nearest
European colony, found it necessary to forego their plan of settling
down in luxurious sloth in some insular paradise, and betook them-
selves to a lonely rock rising perpendicularly from the deep, and
accessible at one landing-place only. There they immured them-
selves to escape observation, turning the key of their dungeon, as
it were, by burning the ship that brought them, lest it should
reveal their presence ; and there they wore out life, the party
quarrelling among themselves and perishing by each other's hands,
for only two were permitted to die a natural death. "^

§ 828. Catharine de Medicis, on the death of Francis II., had
still three surviving sons, Charles IX., who succeeded to the crown ;
Henry, Duke of Anjou, afterwards Henry III. ; and Francis, Duke
of Alengon. ■ Over each she had acquired an ascendency which
would give her supreme power could she make the crown autocratic.
There was in the way of this, however, an insurmountable difiiculty.
The Huguenots were a co-ordinate power in the state, and their
religion and their political principles alike made them intractable.
Coligny was their leader, and besides this possessed military skill,
popular influence, and inflexible integrity. Assassination was to
Catharine the natural remedy, and in this she obtained the ready
support of the chief of the Catholic party, the Duke of Guise, and
then the reluctant assent of Charles IX. The blow was struck ;
Coligny murdered ; and forty thousand Huguenots in one night
destroyed.

Then came the reaction, and prominent in this was the disruption
between the queen, her sons, and her accomplices. To exclude
Henry of Navarre from the succession was one of the chief points
in the confederacy, yet eight days after the massacre, Charles IX.,
according to Ranke, was obliged to summon Henry to him in the

1 " Pippa Passes," by Robert Brown- 2 Hargraves's Blunders of Vice and
ing. Mr. Hawthorne's novel, "The Folly. London, 1871, p. 253.
Marble Faun," deals with the same
tendency.

760

PSYCHICAL INDICATIONS AFTER CRIME. [§ 828.

night to quiet the agonies by which he was tortured. The young
king was filled with dread at a wild tumult of confused voices,
among which were distant shrieks and howlings, mingled with the
indistinguishable raging of a furious multitude, and Avith groans
and curses, as on the day of the massacre. So vivid was his con-
viction of the reality of these sounds, that he sent messengers into
the city to know if a fresh tumult had broken out. But the sounds
were mere delusions, which continued to torment Charles during
the short remainder of his life. Thus he died alternately cursing
his mother, as the cause of his misery, and turning to her submis-
sively, in awe of her overweening power.

So it was with her two remaining sons. Francis, Duke of Alen-
gon, flew into open rebellion, making the massacres of which he
was one of the joint agents the plea. Henry III., it is true, when
he succeeded to the crown, bowing before the queen's superior
genius, conceded to her for a while the supremacy. But this same
restlessness under the joint load of a common guilt, this almost
anguish to throw it ofi" on her who produced it, soon severed the
son from the mother. The final act was in the castle of Blois,
where the Duke of Guise, almost at the foot of the throne, was ob-
liged to defend himself by teeth and nails like a wild beast, for he
had not time to draw his sword. He had been invited there by the
king, as one of the counsel of state, and when there was thus mas-
sacred by his old co -conspirator. And underneath, on her dying
bed, lay Catharine of Medicis, the wild tumult above giving her
proof of this final dissolution of the strange partnership she had
formed for the Huguenot massacre. The community of guilt had
to them been indeed fatal. It had been followed by the bitterest
recriminations and imprecations. It had been followed by massa-
cres and cross massacres. Charles IX, did not hesitate to ascribe
to poison administered by his mother's hand, the disease which tore
his vitals ; and, though this may be discredited, she permitted his
death-bed to be neglected, and his funeral deserted, to increase the
welcome to her more favored son, Henry. The Duke of Guise was
massacred by Henry ; Henry a short time after by an avenger of
the Duke of Guise. Catharine, after having successively deserted
those for whom she had risked so much, died at last deserted by
each in turn.

761

§ 829.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

§ 829. The National Bank of Northampton, Massachusetts, had,
in 1875, a capital of four hundred thousand dollars and a surplus
three-fourths as large. Its stock was selling in the market at one
hundred and sixty dollars a share. The bank edifice was con-
structed with peculiar care. " Inside of the massive bank building
was a solid vault. To unlock the outer door of the vault several
keys were required, and these keys were distributed among as
many bank officers. Inside of the vault . . . were two inner
doors, each with its combination of four sets of figures ; there was
a new and solid safe with double doors, each also with its combina-
tion of four figures ; finally, a watchman stationed within the bank
kept guard until four o'clock each morning." Large special de-
posits, in addition to the moneys of the bank, were placed in these
vaults. It was discovered on the morning of the 26th of January,
1876, that the bank had been robbed, and securities worth almost
a million and a quarter of dollars and all the cash of the bank had
been taken away. The parties, as it ultimately appeared, by whom
the robbery was planned, were Robert C. Scott, James Dunlap, and
William Conners who, in 1872, had robbed the Falls City Bank in
Louisville, Kentucky, of $200,000, and two years later had stolen
from a bank vault at Quincy, Illinois, several hundred thousand
dollars. Preparatory to attempting the Northampton bank, they
obtained the aid of William D. Edson, a skilled workman of
Herring and Company, the safemakers. Edson, being in North-
ampton in 1875, was sent for by the officers of the bank to make
some repairs in the locks. " Entrusted with the keys used to open
the outer door of the vault, he took wax impressions, from which,
on his return to New York, duplicate keys were made. There still
remained the four-fold combinations of the inner doors and the safe
to be overcome. Edson was aware that a clerk of the bank knew
some of these combinations, and he suggested to John Whittlesey,
the cashier, that there was danger in thus trusting a subordinate.
By his advice all the combinations were finally given to Cashier
Whittlesey. With the keys of the outer vault held by the robbers
the whole question of a successful robbery depended upon eliciting
the combinations from the cashier — a matter of no small audacity
and peril, for he lived two-thirds of a mile from the bank in a house
where beside himself there dwelt six persons." — The aid of several
confederates being obtained, the leaders of the attack, about one
762

PSYCHICAL INDICATIONS AFTER CRIME. [§ 829.

o'clock on the morning of the 26th of January, 1876, " gathered,
masked, in front of Cashier Whittlesey's house. The front door
was opened by turning the key with nippers, and the masked men
entered. All of the seven inmates, consisting of Cashier Whit-
tlesey, his wife, another married pair, two ladies, and a servant,
were awakened, bound, and placed under guard. Scott and Dunlap
then took Whittlesey in charge. He was ordered at the point of
the pistol to surrender the combinations of the vault and safe. He
tried to temporize, and gave the robbers a false set of combinations.
Here was an emergency that the cunning of Scott was equal to.
It would have wasted precious time to have gone after four o'clock
to the distant bank to test the figures, and to take Whittlesey there
through the open streets would be to risk the success of the whole
scheme. So Scott, who had taken down the numbers on paper,
suddenly asked Whittlesey to repeat them. The cashier could not
recall the fictitious figures, and his deceit was evident. The rob-
bers then resorted to more heroic means. The cashier was
pounded, kicked, and choked until at last in pain and terror he
gave the real numbers." The whole family, Whittlesey included,
were kept gagged and imprisoned until four o'clock, at which time
the watchman was expected to leave the bank. '" Then while one
part of the gang remained on guard over Whittlesey and the other
captives, another part went to the bank. The weak doors were
quickly entered, the outer door of the massive vault swung open at
the touch of Edson's duplicate keys, and one after another the four
sets of combinations of the vault and safe yielded, and all the
securities in the large safe were exposed to view. The bonds, stock,
and money were tumbled hastily into bags, and taken to a hiding
place to be described hereafter in a schoolhouse about a mile from
the bank. All the doors were then closed and the dials wrenched
off so as to delay the opening of the vaults and safe. The robbers
stole altogether about $1,200,000, of which $888,000 was in cou-
pon and registered bonds, $300,000 in stocks, and $12,000 in
bank bills. Of the bonds some $35,000 were in government cou-
pon bonds, and easily negotiable. There was a second safe in this
vault containing with other securities about $100,000 in bonds
belongins to Smith Collese for Women ; but the combination of
this safe the gang had forgotten to get from Whittlesey, and no
attempt to open it was made. Having hidden their booty, part of

763

§ 829.] MEXTAL UXSOUNDXESS CONSIDERED PSYCHOLOGICALLY.

the burglars took a -n-agon in waiting, and rode to Springfield,
twenty miles away, where they were joined by their associates,
who had come down by rail on an early train. The whole party
then escaped to New Tork by different routes." The only trace
found of the burglars was in a small schoolhouse where, as it ulti-
mately transpired, they had been accustomed to meet when concoct-
ing their plans. " With obvious lack of caution they had left in
the upper part of the schoolhouse bits of food, a lantern, and other
marks of their profession. These discoveries led to a most rigid
search of the building. Partitions were knocked apart, and every
part of the structure, save one, that could possibly be used as a
hiding-place, was explored. In that single spot left unsearched
the bonds were actually concealed. At one end of the lower
rooms was a small platform on which the younger scholars used to
stand to reach a blackboard. The robbers had taken up a board,
placed the stolen booty inside, and fastened back the timber with
screws. The heads of the screws, however, they covered with
putty, which had been painted the exact color of the paint on the
platform. The searchers examined the board, but the unbroken
line of paint threw them off the scent, and they overlooked the
plunder when actually standing within a few inches of it. After
the first alarm and general search were over, one of the robbers
returned to Northampton by night, entered the schoolhouse, secured
the bonds, and took them to New York." The exposure of the
crime is due, not to this negligence on the part of the confederates,
which illustrates the incoherency of crime noticed in a prior section,
but to the inherent animosity between confederates now immediately
under discussion. "After the robbery Edsou fell out with his con-
federates. They had refused him his share of the booty, accused
him of treachery, and feeling sure that he would not disclose a
crime in which he had been so important an actor, they despised
his threats. . . Whatever the motive he was induced to dis-
close the secret. Scott and Dunlap were arrested on the cars at
Philadelphia by Pinkerton's detectives, and Scott incautiously ad-
mitted the ownership of a hand-bag found under his seat, and con-
taining burglars' tools. The two criminals were hurried secretly
through New York and to Northampton without giving opportunity
for legal delays at the metropolis. In due season their trial came
on. They were indicted for entering the bank and also Whittle-
764

GENERAL CONCLUSIONS. [§ 830.

sey's house, and on both indictments were found guilty, and sen-
tenced to twenty years in the Massachusetts State Prison."
The testimony of Edson was sustained by strong corroborative
proof,^ " Marks of tools found in their possession were traced at
Whittlesey's house and at the bank. Both robbers were also iden-
tified by Mrs. Whittlesey and others. The handwriting of Dunlap
was traced in the addresses of letters proposing a compromise with
the bank, although the body of the letters were in characters printed
with a pen."

Another instance of the disintegrating power of crime is to be
found in further proceedings in this remarkable case. Four years
after the conviction of Scott and Dunlap, two professional burglars,
Draper and Leary, were arrested as implicated in the same offence.
The stolen securities had not been returned ; and it was now made
known that Scott and Dunlap, thinking that in this way they
might obtain a pardon, had determined, unless the spoil was given
up, to appear as witnesses against not only Draper and Leary, but
the whole gang. The intimation took effect. All the stolen docu-
ments (excepting $150,000 which had been disposed of, but which
had not got into the hands of the principals in the crime) were
returned to the bank. The second prosecution, however, broke
down, nor, in fact, after the recovery of the stolen bonds, was it
pushed by the bank with the zeal which the public service re-
quired. The failure of the second trial, however, was technically
due to the refusal of Edson to testify to the participation of the
accused.^

IV. GENERAL CONCLUSIONS.

§ 830. Such are some of the ways in which psychology may be
used in the detection of guilt. It shows how a crime conscience
betrays itself, before its commission, in preparations, in p^''?' °^
intimations, in over-acting ; at the time of its commission, economy.

• See Com. v. Scott, 123 Mass. 222, lars, by the voice. To show that tliere

reported in "VVh. on Cr. Ev. 8th eel. §§ was no peculiarity in his voice, Scott

l.i, 312, 430, 433, 441, 803. was asked to repeat something, which

2 The paragraphs iu inverted com- he did. But the court held, that,

mas in the above narrative are taken though identification could be by

from a detailed account in the New voice, experiments in court with the

York Evening Post of .June 29, 1881. voice were inadmissible. Com. v.

On the trial the cashier stated that he Scott, 123 Mass. 222.
could identify Scott, one of the burg-

765

§ 831.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

in incoherence ; after its commission, in convulsive confessions, in
remorse, in involuntary recurrence to the guilty topic, and in dis-
ruption between confederates. The inquiry is an important one
in legal psychology, for it not only aids in the enforcement of the
law, but it leads us to those supreme sanctions on which all law
rests. When we visit a city, and see a series of police officers en-
gaged in ferreting out crime ; when we see, in connection with this,
courts in which the criminal is tried, and the penalties to which
crime is subjected, we draw from these facts the inference of a
government whose office it is to prevent wrong. In proportion to
the perfection in which this police system is carried out, do our
conceptions of the wisdom, the power, and the earnestness of the
supreme authority increase. So it is with the agencies we have
been examining. Wherever guilt goes, they go. They dog it in
all its stages. Its most secret haunts are not closed to them. Its
weakness as well as its wisdom — its slips as well as its successes —
they notice and record. Nor is their function that of detection alone.
They have a strange power of compelling guilt to disclose itself.
They show us that whatever doubts there may be as to the origin
of evil, there is no doubt as to its close. For they show it to be
pursued by a subtle and powerful avenger, which leaves it not until
in one sense or another it is judicially punished.

§ S31. There is one difference, however, between the police of
the courts and that of the conscience. The former, in order to
scent out the crime, often assumes the garb of the criminal. Yidocq
goes into the thieves' den to discover the thieves' secrets. He re-
calls memories of past crime, so as to induce a similar communica-
tiveness in his associates ; he gloats enticingly over the pleasures of
guilt ; he incites to fresh adventures by which the criminal may be
entrapped. But it is not so with the angels of the conscience.
They warn, they appeal, they implore, and this in tones the tender-
est and holiest. Their garb is that of light, telling from whence
they come. While they announce beforehand who they are, and
use the most touching entreaties to prevent wrong, they declare it
will be theirs afterwards to avenge that wrong if done ; — while they
leave no secret as to their awful mission, they gently plead by all
the powers that persuasion can give, that vengeance may not be
theirs to inflict. The memories they recall are not of early guilt,
but of early innocence — of periods when no mad or polluted com-
766

GENERAL CONCLUSIONS. [§ 832.

rade stood by, inciting to ruin, but some tender friend or relative,
uttering counsels of love. They paint not the pleasures of guilt,
but its misery, and they point to scenes of peace to which guilt
cannot reach. It is not theirs to avenge until their final entreaties
are exhausted ; and, when at last they hurry away to give their
last report, he whose guilt is disclosed cannot but say : " This, your
office of exposure as well as of restraint, I knew beforehand. You
told me this — you told me that my sin, if unchecked, would find
me out."

§ 832. It is here that the presumptions from this agency rise a
step higher than those from an earthly police. The latter tells of
a government, comprehensive, sagacious, and just, so far as its
general object of punishing crime is concerned, but of a government
which at the same time deals in punishment alone, and that by in-
struments which are often as polluted as the evils they are to cor-
rect. The former tells of a government, austere it is true, yet very
tender ; moving to holiness through holiness ; permeating not merely
the outer life, but the secrets of the heart ; everywhere warning
and entreating, while everywhere judging ; making punishment
certain and terrible, and yet so working it up into the consequences
of the criminal's voluntary act as to render it his own choice. So
it is that while a police of mere detection and exposure argues an
executive of mere power, a police of love argues an executive of
mercy ; a police that is omnipresent, an executive that is omni-
present ; a police that for a time entreats, warns, and dissuades, an
executive that recognizes a temporary probation ; a police that
ultimately and irrevocably avenges, an executive that after a free
probation judges definitely and finally. It is here we have brought
before us the elements of that Christian Providence which the courts
invoke as the foundation of public justice. In crime itself, there-
fore, we find the proof of that Chief Magistrate who avenges crime.

So it is that while the court-house derives its sanctions from this
Supreme Power, it contributes to the proof of the existence of this
Power an independent share of evidence. No witness can be sworn
until he declares his belief in a future state of rewards and punish-
ments ; no trial can take place without strengthening the evidence
on which this state rests. Human justice falls back on divine for its
support ; divine justice appeals to human as its witness. The penal
precepts of the common law professedly find their basis in the dic-

767

§ 833.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

tates of an enlightened Christian conscience ; the divine sanction of
this conscience is nowhere so fully shown as in the course of a trial
at common law. The present discussion will not be without its
value if, by illustrating these truths, it shows how close is the con-
nection between the divine law and the human ; and how the science
of jurisprudence, while it draws down its strength from heaven to
earth, may still, if rightly studied, lead its votaries from earth to
heaven.

§ 833. The conclusion which has just been reached is not with-
p . , out its value in determining the vexed question of the

mentis objcct of punishment. It is argued by an influential
school of thinkers that the object of punishment is the
prevention of crime ; that whenever we can thereby prevent crime
we are justified in inflicting punishment ; and that we are not justi-
fied in inflicting punishment unless by so doing we can prevent
crime. By another school of thinkers it is held that the object
of punishment is the reformation of the off'ender ; that we are justi-
fied in inflicting punishment whenever it may reform the party
punished, though it follows from this that he is not to be punished
when he cannot be reformed. The true view, as has been elsewhere
urged, is that punishment is to be imposed as a matter of retribu-
tive justice ; and that when so imposed crime is more likely to be
prevented and reformation induced than would be the case were
punishment inflicted for the mere purpose of prevention or reform
irrespective of justice. And what has been said in the preceding
sections tends to strengthen this view. The punishment which, as
we have seen, is self-inflicted by crime is not primarily either pre-
ventive or reformatory. In a secondary sense it has undoubtedly
both these eflfects ; but this is not because the punishment is im-
posed, but because it is felt to be deserved. We are deterred
from Avrong, for instance, when we witness the remorse of great
wrong-doers, not because we see them suff"ering this remorse, but
because we know they are suff'ering in consequence of their wrong-
doing. Our own remorse at wrong done by oui'selves is reformatory
just in proportion as we feel the remorse is the consequence of the
wrong. The system, then, that governs the world is that sin is to
be punished because it is sin : punitur quia peccatum est. And
it is worthy of notice that by this view are best preserved the sanc-
tions at once of liberty and of law. It is not strange that absolutist
768

GENERAL CONCLUSIONS. [§ 833.

economists should claim the right to inflict punishment whenever
prevention or reformation would he worked, because, if either
prevention or reformation he the primary ohject of punishment,
then the right of the state to punish is unlimited. I am entitled,
however, to know beforehand what acts are unlawful, and, as a
member of a civilized state, I am entitled to demand that when
an act is made punishable the punishment assigned should be in
proportion to the heinousness of the act. Unless this be the case
I have no liberty worth having. Turgenieff, in his Punin and
Babwin, has depicted with great vividness the stagnation produced
by a system of government under which a transportation to Siberia
is decreed whenever it is thought by the chief of the police that the
person transported would be improved by the transportation, or
other persons prevented from wrong-doing by seeing him driven
into exile. Far more vivid would be the contrasts could we suppose
such a system introduced among ourselves. In Russia it works
badly enough, but in Eussia free institutions never existed, and jus-
tice was never impartially administered. Our traditions are differ-
ent. The establishing of such a system would be a demolition as
well as a revolution. Our country, great and active as it is, would, if
we submitted to the introduction among us of such a system of penal
discipline, be paralyzed. There would be no business enterprise in
which we could engage which might not to-morrow be pronounced
criminal ; there is no one, no matter how meritorious, who might
not look forward to a moment in Avhich, from some transient unpopu-
larity, it might be, or from some other equally irrelevant conspicu-
ousness, he might not be seized upon and punished in order to
prevent others from wrong. If prevention alone be the standard,
it is immaterial who is punished, or how severe the punishment is,
if the desired terror is produced. Equally despotic is the plea of
reformation not based on retributive justice. If reformation is the
sole standard, then, as has been incidentally noticed, the utterly
incorrigible could not be punished at all, and the punishment of
others would have to be proportioned to their capacity for receiving
and retaining impressions, just as the efforts of the sculptor are pro-
portioned to the capacity of the material on which he works to
receive and retain the finishing strokes of the chisel. Prevention
and reformation are undoubtedly secondary objects of punishment;
VOL. I.— 49 769

§ 833.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

in other words, retributive justice should be so shaped as best to
effect these important ends. But unless a punishment is just, it
will neither prevent crime in others, nor reform the person unjustly
punished. Unjust punishment if inflicted in order to prevent law-
lessness would stimulate lawlessness ; if inflicted in order to reform
an alleged offender, it would drive him into implacable resistance to
the government which perpetrates so atrocious a wrong. To the pre-
servation of law as well as to the preservation of liberty it is essen-
tial that punishment should be inflicted only in just retribution of a
convicted crime which the law has previously made punishable.^

1 See Wh.. Cr. L. 8tli ed. §§ 1 e seq., wliere the topic is discussed at large ;
and see supra, § 754, note 2.

770

INDEX TO YOL. I.

[the figures refer to sections.]

AIDOIOMANIA, 617.

ALCOHOLISM, 639.

AMENTIA, 698.

ANGER, distinguishable from insanity, 422

APPARITIONS due to mistake of senses, 654.

APHASIA, 324.

AUTOPSIES of insane, 321.

BLINDNESS, 95, 469.

BOOKS on insanity, authority of, 279.

BRAIN, lesions of, not due to insanity, 321.

injuries to, 348.

influenced by stomach, 646.
BURDEN OF PROOF (see Presumptions), 246.

conflict as to, in cases of wills, 30.

in criminal issues, 251.

CAPACITY, contractual, 1.

testamentary, 19.

to plead, 200 a.

of deaf-mutes, 95.
CHOREA, 647.

CHRISTIANITY has no tendency to produce Insanity, 662.
CLASSIFICATIONS of insanity, 305-318.
COMMISSIONS OF LUNACY, 99.
CONFESSIONS, insane, 200 a, 788, 804.

CONSANGUINEOUS MARRIAGES, as affecting idiocy, 269, 684.
CONSCIENCE, extinction of, rare, 816.

part of divine economy, 830.
CONTRACTS, capacity to execute, 1-18.

lunacy as affecting, 1.

lucid intervals as affecting, 2.

monomania as affecting, 3.

fraud as affecting, 6.

771

INDEX TO VOL. I.

COliiTR ACTS— (continued').

deeds, how affected by Insanity, 9.
partnership, how affected by insanity, 11.
torts, how affected by insanity, 15.
intoxication, effect of, on, 16.
man-iage, capacity for, 1 7.
undue influence, 76.
CONVERSATION as a test of insanity, 378.

CORPUS DELICTI, necessity of proving in case of confessions, 804.
CRBIE, hereditary, 367, 371.
psychical indications of, 771.
prior to crime.

preparations, 773.
intimations, 775.
over-acting, 780.
at crime.

incoherence, 781.
self-over-reaching, 787.
after crime.

con"vnilsive confessions, 788.
nervous tremor, 805.

morbid propensity to return to scene of guilt, 812.
permanent mental wretchedness, 814.
animosity between confederates, 815.
responsibility for (see Responsibility), capacity for, 116-201.
CRIMINAL LUNATICS, treatment of, 753.
CUNNING consistent with insanity, 381-385.

DEAF-MUTES, 95, 461.

DEFINITION OF INSANITY, to come from court, not experts, 112, 190.

DEEDS (see Contracts).

DELIRIUM, difficulty of feigning, 447.

general delirium, 702.

partial delirium, 706.

mania or amentia occulta, 706.
mania transitoria, 710.
DELIRIUM TREMENS, as affecting responsibility, 202.

as constituting a monomania, 639.
DELUSIONS, as affecting contracts, 3.

as affecting wills, 34.

as affecting crime, 125.

objective and subjective, distinction between, 135.

due to sexual causes, 525.

psychological character of, 723.
DEMENTIA, 698.
DEMONIACAL POSSESSION, 644.

772

INDEX TO VOL. I.

DEPORTMENT, as a test of insanity, § 378.
DEPRESSION, 502.

DERANGEMENT OF SENSES, deaf and dumb, 461.
psychologically, 461.
legally, 464.

blind, 469.

epileptics, 470.
DETECTION OF INSANITY, 338.
DIPSOMANIA, 639.

DRUNKENNESS (see Intoxication and Commissions of Lunacy).
DUMBNESS, 95, 461.

ECCENTRICITY, does not per se incapacitate, 29, 86.
is not equivalent to delusion, 38.
cruelty of refusing capacity on account of, 60.
ECSTAsIeS, 659.
EPIDEMICS, hysterical, 647.

of confession, 800.
EPILEPSY, 470.
EROTOMANIA, 617.

ESCAPE, neglect to, presumption from, 406.
EVIDENCE, mode of proof of insanity, 246.
testimony of experts and non-experts, 257.
scientific books inadmissible, 270.
EXAMINATIONS OF INSANE, by whom conducted, 338.
at what time made, 341.
by what tests, 345.
EXPERTS, who they are, 262.

difficulty in determining their qualifications, 268.
question to be put to them, 262.

as to matter of common knowledge, 264.
court to decide whether matter belongs to them, 265.
as to scientific authorities, 286.
as to hypothetical case, 32, 267.
as to disputed facts, 267.
as to conclusion of law, 112, 190.
■weight to be attached to their testimony, 33, 195, 270, 275.
duties of, 278.

should be assessors, 274.
testimony not to be speculative, 275.
examinations should be thorough, 276.'
all materials for diagnosis should be secured, 278.
entitled to special fees, 263.
non-experts, 257.

may give opinions as to sanity, 31, 102, 257, 261.
not competent as to occult conditions, 258.

773

INDEX TO VOL. I.

'EXPERTS— (continued).

cannot be asked as to hypothetical case, 259.

subscribing witnesses admissible as to sanity, 260.
EXPERT APPELLATE COURT, difficulties caused by absence of, 273.

FANATICO-MANIA, 614.

supernatural or pseudo-natural demoniacal possession.
d, priori improbability of such possession, 644.
solubilitjr of the instances of such possession by natural tests.
disease, 646.

morbid imitative sympathy, 647.
legerdemain and fraud, 651.
mistake of senses, 654,
guesswork, 656.

natural phenomena at present inexplicable, 659.
historical evidence of such possession, 660.
religious insanity.

Christianity, taken in its practical sense, has no tendency to produce

insanity, 662.
what is called religious insanity is produced —

by a departure from practical Christianity, 669.

appeal to the selfish element, 675.
by constitutional idiosyncrasies, 677.
fanatico-mania as a defence, 678.
FEAR, as a check oft passion, 149.

sane and insane, distinction between, 432.
not insanity, 432. '

delusion as to danger as affecting responsibility, 130.
FEIGNED insanity (see Simulated Insanity).
FORGETFULNESS, as a test of insanity, 410.
FRAUD (see Undue Influence').

GRIEF, not insanity, 426.

GUARDIANS, may avoid contracts of ward, 13.
in lunacy, 99.

HALLUCINATIONS (see Delusions).^

HANDWRITING, as a test of insanity, 386.

HEREDITARY TENDENCIES, as a test of insanity, 143, 254, 362.

psychologically considered, 362.
HISTORY, as a test of insanity, 388.
HOME-SICKNESS, 429.
HOMICIDAL MANIA, 578.
HYPOCHONDRIA, 508.
HYPOTHETICAL CASE, examination of experts as to, 32, 267.

non-experts cannot give opinions as to, 257.

774

INDEX TO VOL. I.

HYSTERIA not insanity, 517.

selfishness a form of, 676.
HYSTERICAL epidemics, 647.

IDIOCY as to contracts, 1.

marriage, 17.

wills, 20.

crime, 117.

produced by excesses of parents, 369.

viewed psychologically, 682.
ILLUSIONS (see Delusions).
IMBECILITY as to contracts, 1, 76.

marriage, 17,

wills, 19, 76.

crime, 117.

murder, in the case of, 441.

psychologically, 691.
IMPULSE (see Irresistible Impulse).
INCENDIARY PROPENSITY, 604.
INQUISITION OF LUNACY, generally, 99.

is only prima facie proof to third parties, 6 a, 255.
INSANE CRIMINALS, treatment of, 753.

retribution, 754.

prevention, 763.

example, 765.

reform, 766.

why our present system should be remodelled, 770.
INSANITY, when occult, 706.

when transitory, 162, 710.
INSENSIBILITY of act, test of insanity, 389.

to extremes of temperature, in the insane, 358.
INSURANCE, LIFE, when avoided by insanity, 228.
INTERMEDIATE THEORY, 329.
INTOXICATION, as aifecting capacity to contract, 16.

as affecting testamentary capacity, 65.

as a defence to charge of crime, 202.

insanity produced by delirium tremens affects responsibility in the same
way as insanity produced by any other cause, 202.

insanity immediately produced by intoxication does not destroy respon-
sibility where the patient, when sane and responsible, made himself
voluntarily intoxicated, 207.

while intoxication is, per se, no defence to the fact of guilt, yet when the
question of intent or premeditation is concerned, it may be proved for
the purpose of determining the precise degree, 214.

as affecting responsibility, 639 (see Commissions of Lunacy).
IRRESISTIBLE IMPULSE, 146, 567.

775

INDEX TO VOL. I.
KLEPTOMANIA, 590

LETTERS as a test of insanity, 386.
LIBERTARIAJSriSM not inconsistent with reason, 664.
LIFE INSURANCE as affected by insanity, 228.

IjUCID intervals in relation to contractual and testamentary. capacity
2, 61.

presumptions as to, 247-249.

psychologically considered, 744.
LUNACY, commission of, 99.
LUNATICS, CRIMINAL, treatment of, 753-770.
LYING PROPENSITY, 626.

MAGNETIC PHENOMENA at present inexplicable, 659.
MANIA A POTU as affecting responsibility, 202.

as constituting a monomania, 639.
MANIA OCCULTA, 706.
MANIA TRANSITORIA, 162, 710.
MARRIAGE, capacity to contract, 17.

MATERIALISM, its theory of insanity and volition, 150 a, 327.
MEDICINES may produce incapacity, 75.

witnesses under influence of, 245.
MEDICAL BOOKS, 279.
MEMORY, loss of, inferring insanity, 410.

often cause of supernatural presentiments, 657.
independent of corporeal conditions, 658.
MIND not divisible, 305, 533.
and matter, union of, 334.
MONOMANIAS as affecting contracts, 3.
as affecting wills, 34.

psychologically, 567, 670 (see Moral Insanity).
MORAL INSANITY does not affect testamentary capacity, 37.
as a defence to charge of crime, 123, 163.
general, 531.

as to psychological possibility of separate insanity of moral function,

633.
as to whether such sepai-ate insanity exists, 541.
authorities in the alffrmative, 541.
present weight of authority is negative, 552.
not recognized by the courts, 163.
MORAL MONOMANIAS, special, 567.
at present repudiated, 567.
absurdity of classification, 572.
homicidal mania, 578.

kleptomania (morbid propensity to steal), 590.
pyromania (morbid incendiary propensity), 604.

776

INDEX TO VOL. I.

MORAL MOXOMANIA S— (continued).

erotomania (morbid sexual propensity), 617.

pseudomania (morbid lying propensity), 626.

oikeiomania (morbid state of domestic affections), 630.

suicidal mania, 636.

dipsomania (morbid passion for drink), 639.

fanatico-mania, 644.

politico-mania, 679.
MORBID IMITATIVE SYMPATHY, 647.
MOTIVE as a test of insanity, 399.

there may be a legally motiveless act, 405.

NARCOTICS (see Medicines).
NECESSARIES, liability of lunatics for, 1.

of drunkards, 16 c.
NEGLECT, to escape presumption from, 406.
NERVOUS DISEASES, as transmitting mental derangement, 368.

causing confessions, 795.
NOSTALGIA, 429.
NOTORIETY, desire for, causing untrue confessions, 792.

OBLIVION as a test of insanity, 410.

OCCULT MANIA, 706.

OIKEIOMANIA, 630.

OINOMANIA, 639.

OLD AGE as affecting capacity, 87, 104, 691.

OPTICAL DELUSIONS, 655.

PARTNERSHIP CONTRACTS (see Contracts).
PASSIONS as distinguishable from insanity.

remorse, 413.

anger, 422.

shame, 423.

grief, 426.

homesickness, 429.

fear, 432.
PHRENOLOGY, psychological value of, 320.
PHYSICAL PECULIARITIES explaining mental conditions, 253.

tests of insanity, 347.

theory of insanity, 330.
PLEAD, capacity of lunatic to, 200 a.
POLITICO-MANIA, 679.

PREMEDITATION (sec Delusions and Intoxication).
PRESUMPTIONS from character of act, 63, 83, 389, 773, 782.

from old age, 87.

from relation of beneficiaries to testator, 82.

777

INDEX TO VOL. I.

VR'ESVM'PT10:^S— {continued).

from party being deaf, dumb, or blind, 95, 461.

from suicide, 241.

as to sanity generally, 246-256.

as to lucid intervals, 2, 61, 744.

from hereditary tendency, 362.

burden of proof, 246.
PROSTRATIOX, 682.
PROVOCATION, delusion as to, 130.

passion consequent on, a mitigating element, 151.

incase of intoxication, 216.
PSYCHICAL theory of insanity, 319.

indications of crime, 7 71 (see Crime).
PULSE as a test of insanity, 352.
PUNISHMENT necessary to prevent crime, 148, 833.

efficiency of penal discipline, 189, 337.

in relation to insane criminals, 753-770.
PYROMANIA, 604.

QUESTIONS OF LAW must be decided by judge, not by jury, 113.

RAGE distinguishable from insanity, 418.
RELIGIOUS INSANITY (see Fanatico-mania) .
REMORSE distinguishable from insanity, 413, 788.

and giief, distinction between, 822.
RESPONSIBILITY FOR CRIME, where the defendant is incapable of dis-
tinguishing between right and wrong as to the particular" act, 116.
■where the defendant is acting under an insane delusion as to circum-
stances which, if true, would relieve the act from responsibility, or
where his reasoning powers are so depraved as to make the commission
of the particular act the natural consequence of the delusion, 125.
where the defendant, being insane, is forced by an iiTesistible impulse to

do the particular act, 146.
moral insanity (i. e., a supposed insanity of the moral system claimed to

coexist with mental sanity) is no defence, 163.
while experts may be called to testify as to states of mind and conditions
of health, it is for the court to declare whether such states and condi-
tions constitute irresponsibility, 190.
predisposition to insanity as lowering gi'ade of guilt, 200.
capacity of insane defendants to plead, 200 a.
how far intoxication affects responsibility, 202.
moral insanity viewed psychologically, 531.
moral monomanias, 567.
homicidal mania, 578.
kleptomania, 590.

778

INDEX TO VOL. I.

EESPOXSIBILITY FOR CRIME— [contimted).

pyromania, 604.

erotomania, 617.

pseudomania, 626.

oikeiomania, 630.

suicidal mania, 636.

dipsomania, 639.

fanatico-mania, 644.
RIGHT AXD WRONG TEST in criminal cases, 119.

not applicable to cases of life insurance, 240.

SCIENTIFIC TREATISES, authority of, 279.

SECRETIONS as a test of insanity, 352.

SELF-DEFENCE, murder under delusions as to necessity of, 440.

SENSORIAL SYSTEM, as affected by insanity, 360.

SEXUAL MORBID INSTINCT, 617.

SHAjNIE, distinguishable from insanity, 423.

causing suicide, 425.
SIMULATED INSANITY, reasons for suspecting, 445.
forms generally simulated, 446.
not proved by sanity at trial, 452.
tests, 354, 454.
physical conditions, 347.
injuries to brain, 348.

anomalies of sensibility, of pulse, of secretions, of sense, 352.
hereditary tendency, 362.
psychologically, 362.
legally, 373.
conversation and deportment, 378.
■writings, 386.
prior history, 388.
nature of act, 389.

its insensibility, 389.

its incongruity with antecedents, 390.

its motivelessness, 399.

motives rarely simple, 401.
passion as a motive, 403.
lawlessness as a motive, 404.
neglect to escape, 406.
forgetfulness, 410.
SLEEP, its relations to insanity, 482.
SLEEP-DRUNKENNESS, 484.
SOMATIC THEORY of insanity, 320.
SOMNAMBULISM, 492.
SOMNOLENTIA, 484.

779

INDEX TO VOL. I.

SOUL, incorporeality of, 333.
SPIRITUALISM as affecting capacity, 59.
STEALIiS'G MANIA, 590.
SUICIDE not conclusive evidence of insanity, 241.

under influence of melancholia, 529.

from shame, 425.

as a recognition of public sense of right, 823.
SUICIDAL MANIA, 636.
SUPERNATURALISM, effect of spiritualism on capacity, 59

manifestation of, due to fraud, 652.

supernatural presentiments often due to memory, 657.
SUPERNATURAL POSSESSION (see Demonolvgy).
SYMPATHY (see Morbid Sympathy).

TEMPERAMENT, affections of, 502.

depression, 502.

hypochondria, 508.

hysteria, 517.

melancholia, 523.
THEOLOGY^, attitude of, towards intermediate theory of insanity, 332,
TORTS, how insanity affects responsibility for, 15.
TRANSITORY MANIA, 162, 710.
TREATISES, SCIENTIFIC, when evidence, 279.

UNDUE INFLUENCE, as affecting contracts, 2.
as affecting wiUs, 76.

VOIDABILITY OP CONTRACTS, law as to, 7.
VOLITION, conflicting views as to, 150, 327.

WILLS, capacity for, as affected by insanity, 19-98 (see Burden of Pronj).
WITNESSES, when disqualified by insanity, 242.
non-experts, 257.

may give opinions as to sanity, 31, 162, 257, 261.

not competent as to occult conditions, 258.

cannot be asked as to hypothetical case, 259.

subscribing witnesses admissible as to sanity, 260.
experts, 262.
questions to be put to them, 262.

as to matter of common knowledge, 264.

court to decide whether matter belongs to them, 265.

as to scientific authorities, 266.

as to hypothetical case, 32, 267.

as to disputed acts, 267.

as to conclusion of law, 112, 190.

780

INDEX TO VOL. I.

WITNESSES— (con^mwefZ).

weight to be attached to their testimony, 33, 195, 270, 275.
duties of, 274.

should be assessors, 274.
testimony not to be speculative, 275.
examinations to be thorough, 276.
all materials for diagnosis should be secured, 278.
entitled to special fees, 263.
WRITINGS, as evidence of sanity, 386.

781

END OF VOL. I.

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Wharton

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