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REPORT
MEDICAL JURISPRUDENCE OF INSANITY. 
 
REPORT
MEDICAL JURISPRUDENCE OF INSANITY.
C. B. COVENTRY, M. D.,
       DTICA, K. Y.
            EXTRACTED FROM THE
TRANSACTIONS OF THE AMERICAN MEDICAL ASSOCIATION.
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          PHILADELPHIA:
COLLINS, PRINTER, 705 LODGE ALLEY.
               1858. 
 
REPORT ON MEDICAL JURISPRUDENCE OF INSANITY.
         Preliminary Remarks.—The subject of insanity, in all its rela-
       tions, is one of the most interesting that can engage the attention
       of the physician, the philanthropist, or the medical jurist; and one
       of the most brilliant  achievements of the  medical profession  in
       modern times, is the reform which it has effected  in the cure and
       treatment of that unfortunate class of our fellow-beings, who are
       afflicted with insanity; in rescuing them  not merely from the neg-
       lect, but from the  cruelty  and abuse which  they were formerly
       made to suffer.  The name  of Pinel, who was the first to remove
       the chains  and shackles from the insane, should be ranked with
       that of Harvey and Jenner, prominent among the benefactors of
       mankind.
         Thanks to the philanthropic  exertions of Pinel, Esquirol, Has-
       lam, Conolly,  Prichard,  Combe, and others  in  Europe; of Rush,
       Woodward, Brigham, Ray, McDonnel, Earle,  and others in this
       country; insanity is no longer considered by the educated, a mys-
       terious infliction of Divine Providence, but as a symptom of disease,
       demanding all the care, kindness, and  attention of any other form
       of disease.
         Reforms of every kind are slow in their progress; and although
       much has been accomplished as regards our knowledge of the causes,
*       pathology and proper treatment of insanity, much as regards the
       care and well-being of this unfortunate class of patients, it is only
       necessary to examine the  records of our  courts,  the conflicting
       opinions advanced  by judicial  authority, and the verdicts  often
       given, to see that the legal  relations of insanity, and the responsi-
       bility for supposed  crime are as uncertain and unsettled as in the
       time of Blackstone or Lord Coke.   In the general community, the
       idea of insanity has been formed from the few  cases the individual
       may have seen of  raving maniacs, or  from  reading the works  of
       Shakspeare, Scott, and other writers of this class, which, however
              2 
6
REPORT on
correct as to certain forms of insanity, give no idea of the different
phases of this protean malady.  These erroneous views, unfortu-
nately, are not confined to the ignorant and illiterate.  If we look
at the comments and observations often found in newspapers, and,
I am sorry to add, sometimes in our  medical  journals—where a
better knowledge would be expected—or at the testimony sometimes
given by medical men in courts of justice, we must be satisfied that
the general intelligence on the subject of insanity is far from keep-
ing pace with the few who have devoted particular attention to the
subject.  Whilst some of our judges and jurists have manifested a
degree of intelligence and judgment alike creditable to themselves
and the courts over which they preside, it must be admitted, that,
in a large proportion of cases, the verdict is dictated more by popu-
lar influence, or prejudice, or by  the  talent and ingenuity of coun-
sel, than by the stern dictates of justice.  Whilst, on the one hand,
some persons  who were really guilty have  been acquitted, on the
plea of insanity; on the other, popular clamor has condemned to
an ignominious death many an innocent victim of disease, who was
deserving of our pity and commiseration for his  misfortune, and
who should have found in the  courts of justice, protection  from
popular excitement, instead of vindictive punishment.  I have seen
weeks spent in  the  trial of a poor demented  being, who seemed
totally unconscious of what was going on, and who scarcely had the
intelligence of a  dog.  One witness testified that he believed he had
the intelligence of an ordinary child of five  years, but was not in-
sane.  On such  testimony the  prisoner was convicted of murder,
but died in prison.  A post-mortem examination  revealed extensive
disease of the  brain.  In another case, the prisoner, scarcely more
intelligent, was convicted of murder, and hung.  In a third case,
the prisoner was convicted  of murder, but the judge,  instead of
sentencing him, sent him to the asylum, where  he still  remains
hopelessly insane.
  In all civilized countries, from the earliest ages to the present
day, persons laboring under insanity have been  considered irre-
sponsible agents.  They were deprived of the control of their pro-
perty, confined in their person, and if any civil act was  performed
it was invalid, and for criminal acts  they were not held responsible.
The theory of the English and American law is  that punishment
is not inflicted as an act of vengeance or retaliation, but  to prevent
its repetition by the individual, and  to deter  others by the example.
Milder and more humane modes than that of punishment can be 
          medical jurisprudence of  insanity.         7

adopted to prevent a repetition of the crime.  No good could be
produced by the punishment of an unfortunate victim of insanity,
who is not himself a free agent.   The theory is no doubt correct,
and the principle inculcated is the dictate of humanity and justice.
In extreme  cases there can be no difficulty in its application; but
such are not usually the subject of judicial investigation, it is in
doubtful cases, whether the individual is insane or not.
  Many attempts have been made to draw the line of demarcation
between sanity and insanity.  When we can define the  line which
separates  light from darkness, or sickness  from  health,  we may
hope—and  not till then—to point out the line  which separates
sanity and insanity.  Much  of the difficulty arises from  the mis-
application  of the term insanity.   The law says:  "No act done in
a state of insanity can be punished  as an offence."1  If  this was
carried out strictly,  no person who was  at all  insane could be
punished; but no court of justice ever has, or ever should, so carry
out the law.
   Many insane persons are justly held as responsible for their acts
as those who are sane.  This gives rise to an apparent diversity of
opinion*, not only between the medical witnesses and the court, but
between different witnesses.  The question  to the medical witness
is not as to  the responsibility of the prisoner, but as to his  sanity or
insanity.  One answers as he is bound to do according to the strict
meaning of the term.  Another, however, considers the question to
be whether  he is so insane as not to be responsible for his actions.
It is believed that, where a man's judgment is impaired, his feelings
perverted, or his perception  blunted  from disease  or injury of  the
brain, he is insane, and that the  true question is, whether he is so
insane as to be responsible for his acts, and of this each case must
be judged by  itself.  No single principle—as a knowledge of right
or wrong, of the presence or absence of delusion; or of  resistless
uncontrollable impulse—can be adopted as applicable to all  cases.
   Much of  the confusion and difficulty in the jurisprudence of in-
sanity has  arisen  from the attempt to judge  different forms of
insanity by a  single standard.  Thus, in idiocy and imbecility,  the
true question for the jury to decide is the amount of capacity of the
individual;  in other words, does he know right from wrong ?  Take,
on the other hand, a case of acute mania, with delusion;  here every
one can see that the question of a knowledge of right and wrong is
Revised Statutes of New York. 
8
REPORT ON
entirely irrelevant.  The true question for the jury is, whether the
delusion actually exists, and whether it was the cause of the act in
question.   Again, take a case where the prisoner professes to have
been  impelled by an  impulse which  he could not control.  The
prisoner admits  that it was wrong; that he knew it was wrong;
there is no pretence of delusion; the question then for the jury to
determine is, whether the circumstances are  such as to satisfy the
jury that he was not a free agent.
  If we examine the record  of the  jurisprudence of insanity, and
the judicial decisions under them, we shall find much diversity of
opinion as to what amount of insanity should excuse from punish-
ment.   Some, with Justice Story, contend that  there should be a
total deprivation of sense and reason, so that he should  not know
his own name, who  his parents were, or able to count five.   It is
hardly necessary to  say, that no court or jury would try such  a
person at the present day. The generally received doctrine is that
of a knowledge  of right and wrong;  and such  was the  answer of
the fifteen judges of England.  Thfe former Supreme Court of New
York (Justice Beardsley) decided that the true test was a knowledge
of right and wrong as applied to the particular act under consider-
ation.   Lord Erskine, with much apparent plausibility, contended,
in the case of Hatfield, that the presence or absence of delusion
was the true test.   An intelligent jury, however,  usually judges
from the particular circumstances of the case, without much regard
to general  tests; thus, McNaughton was acquitted in England, in
direct violation of the principle laid  down by the fifteen judges. In
a recent trial for homicide, in this country, the court instructed the
jury:  "In order to justify a verdict  of acquittal  on this ground
(insanity), you must find that the defendant, although conscious of
the act he was about to  perpetrate, and  its consequences, yet, gov-
erned by an uncontrollable impulse, his will no longer in subjection
to his reason, owing to  the excited and continued impetuosity of
his thoughts; the confused condition of mind, enfeebled by disease
and goaded by a sense  of grievous wrongs; that he was wrought
up to a frenzy bordering on madness, which rendered him  unable
to control his actions or direct his movements."1  The prisoner was
acquitted.
  .Although the work of Dr. Rush on the Mind, published in 1812,
which was far in advance of the time at which he wrote, contains

        1 Trial of Smith for the killing of Carter.  Philadelphia, 1858. 
          MEDICAL JURISPRUDENCE OF  INSANITY.         9

many valuable suggestions on the jurisprudence of insanity, as also
the tract  of  Haslam, republished in this country by  Cooper in
1819, and the works on insanity by Pinel, Esquirol, Prichard, and
Combe, yet we had no systematic work on the subject, either in
England or this country, until the publication of the valuable work
of Dr.  Ray, on  the Medical Jurisprudence of Insanity, first pub-
lished in  1838.   If this valuable work was in the hands of every
medical witness and medical jurist, it would tend to  dispel much
of the mystery and confusion which surround the subject.
   Since the  publication  of Dr. Ray,  we have had a  new edition,
with  additions, of the same work;  several  valuable contributions
published in the Journal of Insanity, an able article, with copious
notes by  Prof. C. A.  Lee,  M. D., in Guy's  Medical Jurisprudence;
and a very elaborate article on the same subject, in the recent pub-
lication of Wharton and  Stille*, on Medical Jurisprudence.


                    PATHOLOaY OF INSANITY.

   In our investigation  of  this  subject, we are met  at the thres-
hold  by the question of what is Insanity.  Almost all  modern writ-
ers agree that  it is impossible to give  a clear and intelligent de-
scription, in  a concise definition.  Dr. Andrew Combe defines it as
" a prolonged departure from the accustomed mode of thinking or
acting, of the individual, without any adequate cause."  Although
this conveys a clear idea of one of the important evidences of in-
sanity, it only applies to one form, viz.,  mania, and  gives no idea
of the actual pathology.  Dr. Bucknill says:  "Insanity, therefore,
may  be defined  as a condition of the mind in which  a false action
of conception or judgment, or defective  power of the will, or an
uncontrollable violence of  the emotions  and  instincts  have sepa-
rately or  conjointly been  produced by disease."
   We know nothing of the manner  in which moral emotions or
passions affect the physical  organization, or  the connection of mind
and matter;  and it is not probable  that we  ever shall.  We know
just as  little  why the eye alone is impressed with the  rays of light,
o-iving  us vision, and the ear with aerial vibration, giving  us the
sense of sound.   This, however, does not  prevent our studying the
laws  of optics, or those of acoustics.  The  laws which  govern the
functions of  the brain, as the instrument of mental manifestation,
are just as certain as those of vision or hearing. 
10
REPORT ON
  We know that the brain is subject to the same laws of nutrition,
growth, and decay, as other parts of the system ; that it requires a
constant supply of healthy blood for its  nourishment; that every
thought or emotion of the mind, every passion and  feeling, is  at-
tended with disintegration of the cerebral mass.  It is exhausted
by long-continued  exertion, and  refreshed by rest; strengthened
by systematic and continued exercise, and weakened  by want of
exercise.  It is not, then, difficult to see that a great variety of cir-
cumstances may derange  the function  of the  brain.  A deficient
supply of blood; too  much blood, producing congestion; blood of
an impure or poisonous character, may all interfere  with the pro-
per function of the cerebrum.  So a defective organization or de-
velopment of the brain itself may destroy or impair its powers.  As
natural  healthy function of brain is necessary for sanity, a depar-
ture from any of those conditions may produce insanity.  When
we know that a small portion of a poisonous substance introduced
into the circulation, a slight  injury of  the head, a deficient quan-
tity or an excess of blood  sent to the brain, may any of them pro-
duce insanity, it would seem  unnecessary to seek for causes in the
immaterial agent of  which we can know nothing, except as it is
manifested through the material organ,  or instrument, the brain.
  We may investigate the conditions and laws which govern the
function of the brain.  Without attempting to solve the great mys-
tery   which  surrounds the connection of mind  and matter,  Dr.
Brigham says: "We consider  insanity  a chronic  disease of the
brain, producing either derangement of the intellectual faculties, or
a prolonged  change  of the feelings, affections,  and habits, of an
individual.  In all cases, it is a disease of the brain, though the dis-
ease of  this organ  may be secondary, and the consequence of pri-
mary  disease of the stomach, liver, or some other part of the body;
6r it may arise from too great exertion  of the mental  powers or
feelings; but  still  insanity  never results, unless  the  brain itself
becomes affected."1  Webster defines insanity as " derangement of
the intellect."  This  is too limited, as  there may be derangement
of the feelings, passions, and emotions, with little  or no derange-
ment  of intellect;  it  is, however, considered synonymous with de-
rangement.  It would therefore be more appropriate to say that
insanity was a symptom or evidence of  deranged function of  the
brain.
1 American Journal of Insanity, for Oct. 1844. 
          MEDICAL  JURISPRUDENCE OF INSANITY.        11

  Most writers include idiocy and imbecility  under the general
head of insanity, as these  arise from congenital deformity, or im-
perfect development of the brain.  Perhaps they  could not properly
be said to be caused by disease.   We may thus define insanity as
defective or deranged mental  manifestations, arising from defective organ-
ization, imperfect development or diseased action of  the vjhole, or part of
the brain.   Dr. Brigham says : " The brain may be diseased, with-
out causing insanity; for,  although we say, and say truly, that the
brain is the organ  of the  mind, yet  certain portions  of the brain
are not concerned in the manifestations of mental powers, but have
other duties to perform.   Certain parts of the  brain confer on us
the power  of voluntary motion; but  these portions are distinct
from those connected with the mental faculties. Hence, we some-
times  see—though rarely,  I admit—individuals paralytic,  and
unable to move from disease of the brain, whose minds are not at
all, or but very little, disturbed."   " Insanity, in most cases, is the
consequence of very slight disease of a small part of the brain.  If
it were not so, the  disease  would soon terminate in death."1
   The remote causes of insanity are the same as may produce dis-
ease in other organs;  but, in addition, there are some which are
peculiar to this affection, as violent mental shocks,  or emotions.
Dr. Brigham mentions the case of a patient in the asylum who be-
came insane from the loss  of a son.  A similar case is  now under
charge of the writer.  On  one occasion, when attending church, the
subject of this case saw a young man whom she fancied was her
dead son, and insisted on  going to him.   When apprised by him-
self of her mistake, she still insisted it was her  lost son.
   In most cases  of protracted insanity some traces of  disease are
found  on a post-mortem examination.  It is more than probable that
the morbid appearance is the result, and not the cause of deranged
function; and its absence is no argument against the  idea of in-
sanity being caused by deranged action.
   It is evident, from the preceding remarks, that insanity is  often
but an effect of a slight injury or disease of a part of the brain; and
in many cases only a few of the faculties of the mind are  disordered.
From  this, we infer that the brain is not a single organ, but a con-
geries of organs, as maintained by Gall and  his celebrated succes-
sors Spurzheim and Combe.   Thus, each mental faculty may be
disordered by disease of the brain, while others are not affected; a
1 Journal of Insanity for Oct. 1S44, p. 100. 
12
REPORT ON
fact every day observed in  lunatic asylums, but which we know
not how to explain if we believe the brain to  be a single organ.
We very rarely find  the whole  mind destroyed or disordered in
insanity, except in cases of long continuance, or of unusual severity.
A majority of patients in lunatic asylums have considerable mind
left undisturbed, and some of them conduct themselves with pro-
priety and converse rationally most  of the time, and  on all but a
few subjects.   " We wish to repeat that there is  no faculty of the
mind but  may become deranged  by disease of the brain.  Disease
of one part of this organ may cause  the derangement of some of
the intellectual faculties,  while disease in another part  may not dis-
turb the intellect, but derange the moral  powers or propensities.
Thus, we see  blows on  the  head and wounds of the  brain some-
times destroy only one or two of the intellectual faculties, such as
a memory of words, or the memory of places, and at other times to
effect an entire change in the moral character."1
  The analogy of the organs of sense, the result of pathology, and
the phenomena of insanity and dreaming, all go to prove that the
mind is not manifested through the agency of a single organ, but of
many separate  organs intimately connected, to a certain  extent
mutually dependent on each other, closely in contact, drawing their
nourishment from the same  fountain, consequently influenced and
affected by the same causes, but still capable of acting  to a certain
extent, independent of each other, and of being  separately injured
or diseased.
                  CLASSIFICATION OF INSANITY.

  The term insanity, or derangement, has been preferred to that of
unsound mind, used by some writers.  The common law of Eng-
land formerly recognized but two  classes  of insane, viz., Idiots
and Lunatics.   Blackstone says: "An idiot, or natural fool, is one
that has no understanding from  his nativity,  and  therefore is pre-
sumed as never likely to have any."  "A lunatic, or non-compos,
is one who has had understanding, but by disease, grief, or other
accident, has lost the use of his reason."  Cases, however, soon oc-
curred which could not be properly embraced in either of these
divisions;  and the term unsound mind was adopted,  and intended
1 Journal of Insanity, by Doct. Brigham. 
MEDICAL  JURISPRUDENCE OF INSANITY.        13
to embrace all the different forms of insanity.  Medical jurists have
most usually adopted the divisions of Esquirol, viz., Mania, Mono-
mania, Dementia, and Idiocy; a great variety of classifications have
been adopted by different writers.  I have preferred  that adopted
by Dr.  Guy,  in  his work  on Medical Jurisprudence, and which
resembles very nearly that of Ray.   Though open  to objection, it
is believed  to approach as  nearly to the present condition  of our
knowledge as any we could adopt.  It will be seen that the term
unsound mind is such  as embraces  all the different  forms of in-
sanity :—
 From defective
development, or
diminished ac-
tivity  of  the
functions.
From undue ex-
citement.
'  Congenital, or
 occurring    in
 childhood.

  Occurring sub-
 sequent to  the
 development of
.the functions.
  (1. Idiocy, including cre-
tinism.
  2. Imbecility.
Dementia.
Mania.
  1. Consequent on mania,
mental shocks, or injuries
of the brain.
  2. Senile.
 ' 1. General.
  2. Intellec-   i
"> tual.        *
3. Moral.
{
a. General.
6. Partial.
a. General.
6. Partial.
  The principal objection to  the  above arrangement is that we oc-
casionally meet with cases, especially those resulting from onanism
or undue sexual intercourse,  which do not seem properly to come
under any of the above divisions.
  It will be  seen, by referring to the table, that the  different forms
of insanity are divided into two great divisions:—
  First.  Where there is a defect of capacity, or energy, or prostra-
tion of the mental powers.—Amentia: embracing idiocy, imbecility,
and dementia.
  Second. Mania: Intellectual and moral, divided into general and
partial.

  I. Amentia.—Idiocy. An  idiot is defined as one " of non-sane
memory a nativitata" as one  who from his nativity,  by  a  perpetual
infirmity, is non compos mentis ;  or as one who has no understanding
from his nativity.  Dr. Ray says: "Idiocy is that condition of the
mind in  which the reflective,  and a part or all the affective powers,
are either entirely wanting, or are manifested in the slightest pos-
sible extent."  In the worst cases of idiotism, there is usually more 
14
REPORT ON
or less malformation  of the  head, either very small or preterna-
turally large; often deformity in other parts of the body, feebleness
of the muscular system, generally more or less defect of the senses:
Whilst the  intellectual and  moral  faculties  are almost null, not
from any perversions, but from defective organization, or defective
development of the brain.
  The individuals are often  deaf and dumb; sight, and taste, and
smell are imperfect.  In the worst forms, life seems merely vegeta-
tive, and they manifest less of intelligence than the brute creation.
Some idiots, however,  manifest a certain degree of intelligence.
They are able to recognize those who supply them with food; indi-           j
cate their desires by certain cries and gestures ;  manifest a sense of
pleasure and pain.  In  other cases, they have a certain degree  of
mechanical ingenuity.   The fact that an individual has one or two
faculties  does not  remove him from the class of idiots.   On the
other hand, we find individuals of  great and  highly cultivated
talents, and  yet a  single faculty may be idiotic;  but this does not
make them idiots.   Mr. George Combe tells us that this is the case
with himself in regard  to numbers.   We often  find it  true in re-
gard to music, and occasionally in regard to colors.
  In  regard to  the legal relations  of  idiocy, in its more perfect
forms, there can be no question.   An idiot is not competent to per-
form  any civil  contract, and  is  not responsible for  any crime he
may commit.  In  the less perfect forms, it will depend on the de-
gree of intelligence which they manifest; and  this  is a question
which must be  submitted to the jury.
  Imbecility.—Imbecility is used to designate those forms of insanity
or unsound mind which arise, not from an original malformation or
defective organization, as in idiocy, but from some disease occurring
in childhood and preventing  the perfect development of the brain.
Though of not  much practical importance, yet  the  distinction is
of value, inasmuch as in the latter case  there has already been some
manifestation of mind, and consequently the absence of sense and
reason is seldom so perfect as in the former.   Imbecility is defined
by Dr. Ray as " an abnormal deficiency either  in those faculties
that acquaint us with the qualities and ordinary relation of things,
or in those which  furnish us  with the moral  motives that regulate
our relations and conduct towards our fellow-men."  Although im-
becility is most frequently caused by disease occurring in childhood,
many writers give it a  more  extended signification, as follows: — 
          MEDICAL JURISPRUDENCE OF INSANITY.        15

  1. Where original weakness  or imbecility has  lapsed  into un-
soundness of mind.
  2. Imbecility supervening upon some disease of the brain, and
manifesting itself particularly in a loss of memory.
  3. Imbecility with confusion of ideas as of mind, and often attend-
ed  with a loss of memory.  It is either  primary, or  secondary;
and in  the former may be consequent upon severe disease of the
brain, epilepsy, intemperance, sexual excesses, onanism, and senility.
In  the second form, it may arise from previous mania, or other
forms of unsound mind, and always excludes the idea of responsi-
bility.
   4.  Imbecility remaining after the patient has recovered from an
attack  of  insanity, as in other cases, the organ  affected remains
more or less enfeebled after an attack of disease, so that in most, if
not in all cases of recovery from  insanity, a certain degree of im-
becility remains for a time, but does not excuse the responsibility
of  the agent.  In point  of capacity, imbeciles differ as much as
persons in ordinary life.   Whilst some approach in all external
characteristics, the class of idiots, others, without a careful exami-
 nation, would pass for persons of  ordinary or  average capacity.
 Some will even manifest a  high  degree of capacity on some sub-
jects, but total deficiency on others.   Professor Lee, in his Notes to
 Guy's Medical Jurisprudence, says: "We know an individual now
 in the  fiftieth year of his age, who from an attack of disease when
 an infant  has never been  able to read or write, or to make the
 simplest calculation in figures, or to know one letter from another,
 or to have any notions of cleanliness; and yet he possesses an ex-
 cellent memory, and can repeat the  contents of Webster's Spelling
 Book and the New Testament from beginning to end, from having
 heard  them read  in school, and can spell as well as most children of
 ten years old."  There is in the asylum at Utica, a gentleman who
 has been there since its first  organization, who  had an attack of
 acute mania, whilst attending medical lectures in 1828; he now con-
 verses intelligently on most subjects, writes with considerable ability,
 and, being fond  of declamation, speaks with much force and elo-
 quence, and  yet has so little  foresight or precaution—as I was
 informed  by a former superintendent—that he  would wander all
 day  without  taking a thought where he was to sleep or get the
 next meal.
    Every  person  conversant with the  subject will  recognize the
 truthfulness of the following description by Georget: " In hospitals 
16
REPORT ON
for the insane, there is always a certain number of imbeciles who do
the coarser work of the house, or serve as domestics  or  assistants
to the regular officers.  They become sufficiently intelligent to per-
form their duties well, to sweep the courts, carry burdens, move
machines, execute simple commissions, know the use of money, and
procure various enjoyments; but they have no idea, or a very im-
perfect one, of society, laws, morality, courts, and trials; and though
they may have some idea  of property, they have no conception of
the consequence of theft.  They may have been  taught  to refrain
from injuring others, but  are ignorant of what would be done to
them if guilty of incendiarism or murder.  Indeed, it is well known
how common theft is among imbeciles and idiots, and for very ob-
vious reasons. Some of them have no conception of property, nor
of the  distinction of meum and tuum.  Their conduct is actuated
solely by the fear of punishment, when capable of experiencing this
sentiment, and by their own desires.  Others have some notions of
property, but neither a sense of morality nor a fear of punishment
furnishes motives sufficiently powerful to prevent them from steal-
ing.  The sentiment of cunning, too, may be  very much developed
while the other faculties are more or less deficient.  Among the
lower orders of society are many imbeciles a little more intelligent
than these, and not considered as utterly devoid of understanding,
who nevertheless  have but vague and imperfect notions of social
duties and of justice.  They engage in occupations that require no
great extent of intellect, and even in the simplest of the mechanic
arts.  If they do not pass among their acquaintances  as imbeciles,
they are at  least  regarded as  singular beings with feeble under-
standing,  and are teased  and  tormented in  innumerable ways.
Many of them, for want of some powerfully restraining motive, in-
dulge in drinking and become  lazy, drunken, and dissipated, and
finally fall into the  hands  of justice in a greater number than is
generally suspected.  They steal adroitly, and hence are considered
very intelligent; they recommence their offences the moment they
are relieved from confinement,  and are thus believed to be obsti-
nately  perverse; they are violent and passionate, and the slightest
motive is sufficient to plunge them into deeds of incendiarism and
murder.   Those who have strong sexual propensities soon become
guilty  of outrages  on  female chastity.  These beings of limited
capacity furnish to  the courts of justice, to prisons, and scaffolds,
more subjects than is generally supposed."
   We  find in the community many persons who, though  they do 
          MEDICAL JURISPRUDENCE OF INSANITY.        17

not pass for imbeciles, and have a due sense of right  and wrong,
and sufficient moral sense to prevent them from violating the laws,
have  not sufficient capacity to acquire  property or to retain it
if they inherit it.  They are the prey of  sharpers and  swindlers if
they have property, and the hewers of wood and drawers of water
to the more intelligent if they have not.
   In  regard to the legal relations  of imbecility, no fixed rule can
be laid down, if it is simple imbecility, unconnected with derange-
ment.  Whether the question is one of civil capacity or criminal
responsibility, it is a question of capacity which must be submitted
to the jury to decide.  The witness, when called upon  to testify in
a case of imbecility, whether it has reference to his  responsibility
for crime, or the propriety of depriving him of the control of his
property or restraining him of his liberty, must not judge from any
single isolated act, but from the whole history of the individual, the
opportunity he may have had for improvement, the moral influence
exerted over him, and the capacity which he may have manifested
for the transaction of business; and if it is a criminal act, whether
there is any evidence of its being connected with delusion.
   Dementia.—We should distinguish this form of insanity from the
two preceding. We have seen that in idiocy it was congenital, in
imbecility it occurred mostly in early life, and before  the faculties
 were fully developed;  whilst dementia only occurs after  the  full
development  of the  faculties, and mostly in old age.  Dementia
 differs from mania, on the other hand, from the circumstance that
 the latter is attended with excitement, and an exalted condition of
 the faculties, whilst the other is debility produced by exhaustion.
   Dementia manifests itself under three different forms, which differ
 somewhat in  their  characteristics:  1. Dementia, resulting from
 some mental  shock.   2. Dementia, from previous disease of the
 brain, as mania, delirium, inflammation  of the brain or from deli-
 rium tremens.  3.  Senile dementia, resulting from old age.
   1.  Dementia resulting from some mental shock.  Many cases of
 this  kind are related where, from some sudden fright, or unexpected
 noises, the mental process seems  suddenly arrested and  remains
 stationary.  Thus, a case is related of a fisherman, who went in a
 boat to meet his bride; but the boat was upset, and she was lost.
 He became deranged from the shock, and would sit for days in the
 corner moving his arms as if rowing a boat.  Sometimes, they will
 stand for many hours  in the same position without moving, or
 speaking,  with a vacant stare entirely void of intelligence; some- 
18
REPORT ON
times entirely silent, at others muttering to themselves some unin-
telligible jargon.   In such cases, the  insanity comes  on suddenly,
and from some  known cause.
  2. In the second form, the character of the dementia does not
differ materially from the former, but the  manner  of approach  is
different.  The natural termination of mania is either in recovery
or dementia.  Dr. Ray  says that dementia cannot easily be mis-
taken for mania:  this is true; but there is a certain period in the
gradual change of one into the other, when it would be difficult to
say to which class the case belongs.  In a trial which excited much
interest, the  prisoner was clearly demented,  and  several intelli-
gent medical witnesses  so  testified; but  the prisoner, at the time
the homicide was committed, manifested a degree  of intelligence
and  cunning inconsistent with  dementia.  Although the cause of
this was plain enough to the witnesses, it seemed incomprehensible
to the jury.   Before his  death,  which occurred some time after, he
became perfectly demented, and a post-mortem examination revealed
extensive disease of the brain.   When it  results from injury, or
from inflammation, the mind  seems arrested in its  course.  Dr.
Beck mentions the case of a young  clergyman who received an
injury of the head; for  a  time his life was despaired  of; but at
length his health was restored, but his mind  was destroyed.  At
the time of the  injury, he was  on  the point of  being married.
Though he lived  to an advanced age,  he ever  afterwards imagined
himself on the  point of  marriage.
   3. In senile  dementia, the   disease comes on  gradually;  the
memory of  recent  events  is first to  be  affected.   The reasoning
faculties frequently retain their  vigor,  after the memory is impaired.
The moral and affective faculties often maintain  their vigor, even
when the intellect is lost.  The intellectual faculties gradually fail,
and the individual  is reduced  to a state  of utter helplessness and
dependence.
   In cases of  dementia, therefore, there may be  every possible
shade of mental  affection  between the excitement of  mania, the
glimmering of sense and reason, and the perfect extinction of all
the mental faculties.
   Legal Relations of Dementia.—It is seldom that dementia becomes
a subject of judicial investigation, except as regards the validity of
a will.  It is not often that criminal acts are committed by the de-
mented.  In the more  perfect form,  they  are totally incapable of
any civil contract, and irresponsible  for any criminal act.  It is in 
MEDICAL JURISPRUDENCE OF INSANITY.        19
these cases where, from advancing age, the memory begins to fail,
the intellect to become dull, that the question arises as to the capa-
city of the party to make a will.  It is a principle well established
that, where  the instrument itself is  consistent and  reasonable;
where it is in accordance with the previously expressed intention;
and where there is no evidence that undue or improper influence
had been used, and especially if the witnesses to  the will  testify
that at the time of its execution he seemed to comprehend its im-
port, it will usually be sustained, though it may be proved that the
memory was  somewhat impaired.  On the other  hand, if there is
reason  to  suppose improper influences  had been used, the courts
are very apt to set it aside.

   II. Mania.—Under this head are included  all those forms of in-
 sanity which are characterized by undue excitement of the facul-
 ties. It differs, therefore, from the others by the symptoms which
 characterize it,  and the legal tests by which it is known.   Whilst,
 in idiocy, imbecility, and dementia, the former test of a knowledge
 of right and wrong  might for the most part be properly applied,
 it would be entirely  inapplicable when applied to mania, where the
 individual  often  manifests a degree of sagacity  and cunning, of
 which he was hardly considered capable when sane.
    We have seen that, according to the arrangement adopted, mania
 was divided into General, Intellectual, and Moral; and the two lat-
 ter into the subdivisions General and Partial.
    1. General Mania.—In this form of disease, both the intellect and
 the passions and feelings are thrown into a state of excitement and
 confusion.   A  rapid succession of unconnected ideas or emotions,
 acts of  extravagance, a more or less complete forgetfulness of the
 previous condition, diminished sensibility to external impressions,
 loss or abolition of the faculty of judgment, characterize this form
 of insanity.  Under whatever forms it may appear, unless it is the
 immediate effect of injuries, moral shocks, or acute  disease, it  is
 usually presented by what has been termed a period of incubation.
 The period  of  incubation varies from a few hours to months, and
 even years, and it is not a very rare occurrence that an individual,
 after having been for a long time on the very verge of madness,
 gradually recovers  without any outburst.   In most cases, where
 the attack is not sudden, there is a struggle on the part of the pa-
 tient to conceal his  emotions; he is perfectly conscious how they
 would be viewed by others, although they may themselves believe 
20                       REPORT ON
in their reality.   The  patient feels that there is a change in  his
feelings, but tries to  conceal it; he is unable to sleep at night;  his
appetite is impaired; he suffers from constipation; becomes thin
and sallow.  As these changes are gradually taking place, the whole
character of the man is changed; the industrious, orderly, business
man becomes idle, negligent, and careless; the fond husband  and
affectionate  parent becomes cross, morose, and tyrannical.  If he
was  before prudent and economical, he becomes careless and ex-
travagant ; not unfrequently enters into politics or religion with a
zeal  altogether foreign to his former character; but if, on the other
hand, he was before  religious, he often  becomes very negligent of
his religious duties, and sometimes profane.   The great and import-
ant evidence of his insanity is not so much that his thoughts  and
actions differ from those of others, as from his former self.  It is
supposed that the conduct and character of an  individual do  not
undergo a material change, without some adequate cause.  If, then,
such changes  take place without  any  assignable cause,  and are
attended with  the other indications of insanity, or deranged health,
impaired appetite, and inability to sleep, there  can  be but little
doubt the individual is on the brink  of insanity, though there has
been no decided outbreak of the disease.  The period of incubation
is very various;  but, when the insanity  is fully formed, the senses,
the intellect, and the moral feelings and purposes are thrown into
one complete state of chaos and confusion.
   2. Intellectual Mania.—In some cases, insanity seems almost en-
tirely confined to the intellect, without influencing the feelings.  It
more frequently occurs in those distinguished for their ability.  A
gentleman, who was  for a long time an inmate  of the New York
State Asylum, was  a striking illustration  of this form.  When
young, he studied law, and entered upon the practice of his profes-
sion, with the reputation  of talents and great promise.  After he
became insane, in his diary was found his arrangement of time, by
which he  devoted a certain number of hours to  study, a limited
time for meals and exercise, and but a short period to sleep.  The
peculiar feature of his insanity was that he boasted of what he had
done, and what he meant to do; was very polite, and seldom trou-
blesome, unless when he resented what he considered  an insult to
his dignity,  or a want of due respect from inferiors.  Articles writ-
ten by him for the Journal, always carried with them the evidence
of insanity, and yet they  often abounded with the evidence of
general intelligence, great shrewdness, and high  and  lofty senti- 
          MEDICAL JURISPRUDENCE OF INSANITY.        21

ment.  I could never discover that his high sense of honor his love
of virtue, or his attachment to his friends was in the least affected.
I had known  him  before his  insanity, and wherever  I  met him,
however much deranged he might be, he always expressed his plea-
sure and gratification at  the meeting, and  seldom  failed to speak
of incidents and circumstances which occurred before he became
insane.
   2. Partial Intellectual Mania.—This constitutes the form of insanity
described by the older writers under the name of Melancholy, and
for which Esquirol substituted that of Monomania.   It was termed
melancholy, from the supposition that it was attended by despond-
ency and depression of  spirits;  but this is far from being always
the  case.  The  most simple form  of this affection is where  the
patient labors under  a fixed delusion as  to one particular circum-
stance or event.  It is beautifully illustrated in the character of the
astronomer,  in  Dr. Johnson's inimitable  tale of Rasselas.   Sir
George Mackenzie  says: "I knew one who seemed a  discreet per-
son, and could  converse most pertinently, until they spoke of the
 moon;  but, upon hearing  this mentioned, fell instantly a staring,
 and into great extravagancies, believing himself to be secretary to
 the moon."   Lord Erskine, in his defence of Hadfield, mentions
 two memorable instances of this form of insanity, in one of which
 he was  witness, and the other he  received from Lord  Mansfield.
 He says: " I examined for the greater part of a day, in this very
 place, an unfortunate gentleman who had indicted a most affection-
 ate brother, together with the keeper of a madhouse at Hoxton,
 for having imprisoned him as  a lunatic,  whilst, according to his
 evidence, he  was in his perfect senses.   I was unfortunately not
 instructed in what his lunacy consisted.  The day  was wasted, and
 the prosecutor appeared  to the  judge  and jury and  a humane
 English audience  as the victim  of a most barbarous and wanton
 oppression, when Dr. Sims  came into court.  From Dr. S., I learned
 that the very man  whom I had been upwards of an hour examin-
 ing believed himself to be the Lord and Saviour of mankind.  I
 then affected to lament the indecency of my ignorant  examination,
 when he expressed his forgiveness, and said, with the utmost gra-
 vity and emphasis, ' I am the Christ.'  In the other case, a man by
 the name of Wood had indicted Dr. Monroe for keeping him a pri-
 soner.   He underwent a most severe examination, without exposing
 his complaint, when Dr. Battye requested me to ask him what had
 become of the princess, whom he corresponded with in cherry
        3 
22
REPORT ON
juice.  He answered that there was nothing at all in that, because
having been (as every body knew) imprisoned  in a high tower, and
being debarred the  use of ink, he had no other means of corre-
spondence but by writing his letters in cherry juice, and throwing
them into the  river which surrounded the tower, where the prin-
cess received them  in  a  boat.   Of course there was no tower, no
imprisonment, no writing in cherry juice, no river, no boat, but the
whole an  inveterate phantom  of a morbid imagination.   I imme-
diately," continued  Lord Mansfield,  "directed Dr.  Monroe to be
acquitted.  But this man, Wood, on his way to the  madhouse,
indicted Dr. Monroe over again for trespass and imprisonment in
London.   On the second trial,  all the ingenuity of the bar, and all
the authority of the court, could not make him say a single sylla-
ble upon the topic which had put an end to the indictment before."
One of the most frequent cases of this form of insanity is where
the  patients imagine there  is some  living animal within  them.
With females,  they often  imagine and  insist  that they are preg-
nant.  On one occasion, a man insisted  he had mice  in his abdo-
men ; his physician gave him something, as  he said,  to destroy
them; but the patient soon  returned very much alarmed,  and
wanted to know if he had given him ratsbane.
   3. Moral Mania.—As  we have already  seen, previous to the
time of Pinel,  insanity was  considered almost, if not entirely, an
affection of the intellect,  or of the reasoning faculties; but, whilst
connected with the BicStre, he found  many  maniacs who betrayed
no lesion of the understanding, but were under  the dominion of
abstract and instinctive fury, as if the  affective faculties alone had
sustained injury.   This he  designated as "mania  sans delire."
Since his  time, the  great importance  of  this distinction has been
recognized by a large number of writers on insanity; though not
generally recognized by the courts of justice, and apparently ques-
tioned by some recent writers  on the subject.  That the moral feel-
ings, the affections and sentiments, the love of family and friends,
the love of justice,  and the  feelings of veneration  and of consci-
entiousness may be  destroyed or perverted  by the  same  means—
i.  e., disease of the brain—as the intellectual or reasoning faculties,
is established by too much evidence to admit of a question.  It is
however,  true that the same causes which produce moral insanity,
are apt also to  affect the intellect, and that in general mania, the
first indication is a perversion of the moral faculties, and that moral
insanity can hardly continue long without  affecting  the  intellect. 
MEDICAL JURISPRUDENCE  OF INSANITY.        23
        At the same time, if we admit  the  term insanity, as applied to
        these perversions of the feelings, it is a very difficult question to
        determine how far it should excuse the commission of crime.  Al-
        though the feelings, the inclinations,  and propensities  may have
        changed, yet so long as the individual is able to control his actions,
        and possesses  sufficient intelligence to know the consequences of
        his actions, and is not laboring under any delusion, it is difficult to
        say how far he should be excused.  The  following is one  of the
        most striking cases of moral insanity I have ever seen.
          Some years  since, the late Prof. James Webster called upon me,
        saying he had with him a gentleman whom he was requested to
        place in the asylum, but that he was wholly at a loss what to do.
        The  gentleman, who  was a resident of one  of the western villages
        in New York, had left home without  the knowledge of his family
        and  friends.   Some  time after,  they heard of him in one  of the
        Atlantic  cities. Dr. W. was  requested to go for him, and leave him
        at the asylum  at Utica.  It appeared that, for some time before his
        leaving home,  his friends and family had  noticed a marked change
        in his  conduct.  From  being  an industrious and careful business
        man, he had become  idle and careless in his affairs; from a kind
        and  affectionate husband, and  indulgent parent, he had  become
        cross, tyrannical, and  abusive in his family.   These changes had
        given rise to a report that he might be insane—a report which he
        was  particularly anxious to rebut.  Dr. W. found him boarding at
        a fashionable and expensive hotel.  He had introduced himself  to
        the public authorities, had visited the different public institutions,
        and manifested a warm interest in the charitable institutions of the
        city.  When the Dr. mentioned the object of his visit to one of the
        officers of the  city, they begged that  he would say nothing about
        it publicly, as  no one  had suspected him of being insane.  In order
        to get him to leave, he requested the landlord to insist on payment
f        for his board.   Knowing that he had no money, by this means he
        got his consent to leave and travel with him, and, after  visiting
        several other places, they came to Utica.  My advice was  that he
        should not place him  in the  asylum, but take him home, and if it
        became necessary, to  tell him frankly why they placed him in con-
        finement.  At  the same time, I proposed to the Dr. and the patient
        to visit the asylum, and went with them; the patient consulted Dr.
        Brigham, the superintendent, in  regard  to his health; mentioned
        the reports as to his insanity, and showed him several articles which
        he had written for different papers  on a variety of subjects, for tha 
21
REPORT  ON
purpose of proving he could not be insane.   In the course of con-
versation, I suggested that it was very difficult for a patient to judge
in his own case.   He replied that he knew that, and therefore went
among strangers,  where they had not heard the reports to his pre-
judice; and if they did not  discover any insanity, he  thought  it
pretty good evidence that he was not crazy.  He was taken home,
and not long after brought back  to  the asylum.  Unfortunately,
instead of telling  him it was necessary, and, if  he refused, compel-
ling him to  come, they represented that it was  in vain for him to
attempt to satisfy the community on the subject;  but, if he would
consent to go and board at the asylum a few weeks, and get a cer-
tificate from the superintendent and his assistants that he was  not
insane, it would satisfy his friends and the public.  On these con-
ditions he consented to go.   When  the few weeks were  up, he
wanted  the certificates.  Of course they could not be given.  He
then demanded to be released; this could not be granted, at which
he was very indignant.  Dr.  Brigham, the superintendent, said he
was the most troublesome patient he ever had in the asylum.  Too
rational and intelligent to  place  in close confinement, there was
nothing that cunning and sagacity could devise that he did not re-
sort to, to annoy the officers and attendants.  On one occasion, he
wished to see the managers privately.  AVhen brought before them,
and they wished to know what complaints he had to make, he said
it was not his business to  make complaints, but it was their business
—as managers of the institution—to  know  how it was controlled;
that it was a very responsible  office; and  that he doubted very
much whether they knew anything about what was  going on.   It
was a regulation of the asylum that the chairs should not be taken
from the parlors  into the hall;  this had been  done  several times,
and the chairs quietly  returned by the attendant.  On one of his
visits, the superintendent found him, with  several other patients,
on the floor.  On inquiring what it  meant, he said  the attendant
would not let him have a chair, though there were plenty of such
in the hall.  Every opportunity he  could  get he importuned his
wife and family to take him  out.  At length his wife, worn out by
his importunities, came to me to know what she had better do.   I
was aware that they would be very glad  to get rid of him at the
asylum, and my  advice was to take him home, and if it became
necessary to confine him, to take him to some other institution,
to tell him why they did it, and not leave the impression that  he
was confined by the officers of the asylum. 
                   MEDICAL JURISPRUDENCE OF INSANITY.       25

           Partial Moral Mania.—This consists in the exaltation or predo-
         minance of one passion or propensity over every other.   The pro-
         pensity thus affected, propels the individual, as it were, by a kind
         of irresistible impulse.   Sometimes the individual  seems to retain
         a full consciousness of the impropriety of the conduct, and even
         struggles to resist it, and in many instances patients have requested
         to be confined to prevent their committing some outrage.
           Dr. Woodward, in one of his reports, mentions  an interesting
         case of the kind.  He was consulted by a young man, who stated
         that he had been  compelled to quit his work, from fear that he
}         should murder his  own brother, who worked in the same shop. He
         had no  enmity or  dislike to his brother, but a strong impulse to
         kill him.  He had struggled  against it; but, fearful he might not
         be able to restrain himself, had quit the shop and his work.
            Many mothers have  begged to be confined, lest they should kill
         their children, although  in some cases they retain a  full sense of
         the impropriety and horror of the act.  I am satisfied that in many
         it arises from a want of any due appreciation of the criminality of
         the act.
            There are scarcely any of the stronger impulses of our nature
         which may not be  excited into an undue activity.   Writers on this
f         subject  have, however, omitted to notice an important distinction
         between cases resulting from an exalted and diseased condition of
         the brain, and those resulting from a natural defect or  incapacity
         of appreciating the force of moral  obligation;  the one is properly
         a case of moral mania;  the other of  moral idiocy.
            The following are some of the principal forms of moral mania:—
            (1.) Cleptomania, or Propensity to  Theft.—Dr. Rush has noticed
         this particular form of mania, under the title  of derangement in
         the will.  Many cases are on record of persons whose conduct was
         moral and irreproachable in every other respect, but who  had  a
i        strong propensity  to steal—one evidence that in many cases it is
         an attendant on  imbecility.   When  it occurs as a consequence of
         disease, in a person in whom it did not previously exist, or in con-
         nection with other evidence of insanity, it should be considered as
         only one of the attendants of mania.   Dr. Lee, in his Notes to Guy's
         Medical Jurisprudence,  mentions the case  of a  physician who was
         several times arrested for pilfering, though in  every other  respect
         his conduct was  moral  and  correct.  The peculiarity of  these
         cases is that  it  seems  to arise  from an irresistible impulse, and
         not from  any ulterior object, as articles  which can be  of  no use 
26
REPORT ON
to the person are as often stolen as the most useful or valuable.  It
is only in those cases where it is attended with a change in the
habits and  conduct of the  person, that  it  can  properly be consi-
dered Partial Mania;  in  others, it is more properly Partial Imbe-
cility.
  (2.) Lying.—Dr. Rush  says there are many instances of persons
of sound understanding, and some of uncommon talents, who are
afflicted with this lying disease in the will.  It  differs from excul-
pative, fraudulent, and malicious lying, in  not being influenced by
any of the motives of any of them.  " Every person who has much
acquaintance with society, must have known individuals of this         t
kind.  I knew a physician who had  considerable natural shrewd-
ness, and acquired an extended reputation as a practitioner,  who
never  manifested the  least  conception of  any moral obligation  in
what he said. What seemed the most surprising was, that he would
relate,  with  all the gravity of truth, the most preposterous false-
hoods, when  he  knew that his hearers  knew that he was lying."
As in the former case, it is only while this propensity supervenes
from disease, that it should be considered a case of partial moral
mania.
   (3.) Pyromania, or a Morbid Propensity to Incendiarism.—This form
of partial moral mania is not of very uncommon occurrence.  In
many, perhaps most cases, it is only one of the  forms in which in-
sanity manifests itself, and there are persons to be found in almost
every asylum who have been acquitted of incendiarism.  In some
cases, it is almost the sole indication, and seems the result of a  mor-
bid propensity, without any marked lesion of the intellect, or other
moral  faculties.
   There was, for many years, a young man in the asylum at Utica,
who had been acquitted  on the ground  of insanity.  He was well
educated, a fine musician, and in his conversation gave no evidence
of insanity.  As  an evidence  of  thisj he  was for some time em-         '
ployed as teacher of the  school in the asylum; and yet the circum-
stances were such as to  leave little or no doubt it was the work of
an insane person.  When  an  alarm of fire was given, he  quietly
said he guessed it was the church, for he set it on fire, and that he
had  burned  some other buildings which  had  been burned.  The
volunteered  confession,  the acknowledgment of having  set  other
buildings on fire, the absence of  all  motive, and apparently of all
sense of criminality, would tend to show that he was not a respon- 
                   MEDICAL JURISPRUDENCE OF INSANITY.       27

         sible agent, and had no  realizing sense of the crime he had com-
         mitted.
           (1.) Suicidal Mania.—It is certainly a singular circumstance that
         the propensity of self-destruction is  so common an attendant on
         mania.  No  person who has been familiar  with the insane, and
         knows how difficult it often is to prevent them  from committing
         suicide, can doubt that a large proportion of the cases, now become
         so  frequent, of  self-destruction, results  from insanity.  The fre-
         quency with which this is  effected  or  attempted, is  indeed  the
         strongest argument for the early removal of patients to a well con-
•         ducted  asylum, where the patient can be protected from himself.
         This is almost, if not quite  impossible, when the  patient remains
         in his own home.  Whether the  commission of suicide should of
         itself, in all  cases, be considered an evidence of insanity or not, I
         shall not question.  Where an individual deliberately takes his own
         life without there being anything in his situation and circumstances
         to account for it; where it has been preceded by depression of spi-
         rits and despondency;  where,  in  short, there had  been a marked
         change in the conduct  and  character of the individual, we  may
         safely attribute the rash act to insanity, though there may not have
         been any positive  evidence of deranged  intellect previous to  the
         act.  In England, suicide  is  considered as felony, and an attempt,
         if it fail, is punished by the courts, unless there is decided evidence
         of insanity;  but it is said the evidence of insanity must  be stronger
         than in cases  of homicide.  In this  country, the legal bearing is
         principally in  cases of life-insurance. In the policy of all insur-
         ance companies,  there is a provision  that the insurance is forfeited
         in case of self-destruction; but  the courts have repeatedly decided
         that suicide  by a person who is insane, is not self-destruction in the
         view of the  law.
            (5.)  Homicidal Mania.—Of all  the  forms of partial moral mania,
         that of homicidal mania has elicited most discussion, and may be
         considered most  important.  Formerly rejected by the courts  in  a
         plea of insanity, advocated by many of the most distinguished writ-
         ers, it has found its way into the courts, but has again been drawn
         in  question  by Bucknell, Wharton,  Winslow, Mayo, and others.
         That insanity at  times firsts manifests itself in this form cannot be
         doubted; but the writers mentioned contend that it must have pre-
         viously existed, and that there should be some evidence of it in the
         conduct of the individual.  In  short,  that disease of the  brain could
         not take place  so suddenly, as at once to destroy the power of self- 
28
REPORT ON
control, and consequently the responsibility of the individual.   If
we remember the sudden effect produced by some medicinal agents,
as nitrous oxide, chloroform, sulphuric ether, and  the loss of con-
sciousness which they produce, we can well imagine that a sudden
congestion of the brain, from whatever cause, might produce  a tem-
porary insanity.  At the same time, it is no doubt true that, in a
large majority of the cases of what have been considered impulsive
insanity, it is only the sudden outburst of a disease which the pa-
tient had previously been able to conceal; and, if his  conduct  is
carefully examined, it will be found that his character was changed,
and that he gave decided evidence of  insanity, previous to the cri-         >
minal act.

                       TESTS OF INSANITY.

   In cases of unsound mind  from defective development,  or dimi-
nished activity of  the organs, there is not usually much difficulty
in determining  its existence. The only question  likely  to arise
would be the extent of the disqualification for civil contracts, or  of
responsibility for criminal acts.  The  previous history of the indi-
vidual;  the education he had received; whether he had been  in the
habit of transacting business; and the general estimate  of society,
together with the  capacity of receiving instruction, should  all  be
taken into the account.  It is not often that either imbecility or de-
mentia is feigned, as the previous  history of the individual  would
expose them.  The various tests which have at different times been
adopted  to determine the capacity of imbeciles  and persons de-
mented, as the  ability to count, to read or write, or remembering
the past  events  of their lives, are all fallacious; and the medical
witness, as well  as the jury,  is compelled to form his opinion from
the whole history of the case.
   Character  of  Insanity from Undue  Excitement  of the Faculties;         +
Mania.—1. The maniac differs from the  sane, not from a loss or de-
fect of any of the faculties, as in idiocy and  imbecility, but in exces-
sive action in some, and in exercising them differently.  To judo-e
of the existence of mania, it is necessary to know how a man acts
under ordinary circumstances.  Men differ so widely  from each
other, that no particular standard can be adopted.  It is not mere
eccentricity that constitutes  insanity, or that a  man  feels, thinks,
and acts different  from any other man.  It must be remembered 
MEDICAL JURISPRUDENCE OF  INSANITY.        29
         that insanity consists in a change of character produced by disease.
         The standard, then, by which a man is to be judged is his former
         self.  Thus, the same  acts committed by two different individuals,
         might in one case be an evidence of insanity, and in the other not.
         This, it appears to me, was the error of the  distinguished medical
         men who testified in the case of Huntington.  They could not con-
         ceive that a sane man could be guilty of  the  acts of folly and
         crime of which he stood convicted.  If his previous life had been
         distinguished for moral honesty, for care and prudence, his acts
         would indeed have been an evidence of  insanity.  All persons are
»        aware how readily a person who has once entered on a career of
         crime descends from  one step to another, until, crimes from which
         they would formerly have shrunk with  horror, become familiar to
         their minds; but the transition is gradual and not  so sudden as in
         insanity.   In most  cases  it is connected with some delusion, be-
         lieving in the  existence of persons, things, or circumstances which
          have no existence in fact.
            2. The senses are  often changed, sometimes preternaturally ex-
          alted.  The senses of smell, of hearing, or of taste, is preternatu-
          rally  acute, sometimes  perverted, at other times  blunted or de-
          stroyed.   Natural objects often  appear changed, so  as  not to be
*         recognized;  the insane often see  objects which have no  existence;
          hear sounds and conversations, often  delicious  music, which have
          no existence except in their perverted imagination.  Persons with
          whom the insane associate often  become in their diseased imagina-
          tion clothed with supernatural properties.  Real impressions, as in
          dreams, often form the material for imaginary scenes.
            3. The  insane antics of madmen are  usually the result of their
          delusion.  On one  occasion, an insane patient being  told that,
          unless he was quiet, it would be  necessary to confine him, he ridi-
          culed the idea, saying he could break any ropes or  bands we could
*        place on him, but when seized, and finding resistance was in vain,
         he at once said if we would relieve him he would be quiet, as he
         saw the Almighty had given us power to control him.
            4. The acts of the madman which are the results of his delusion
         are often such as no sane man would deem proper to accomplish
         the object in view.
            5. The violence of the insane is often the effect of his delusion
         and not of mere passion.
            6. Insane patients of a  reserved disposition, unless impelled by
         some powerful  motive, have  often the  power  of concealing their 
80
REPORT ON
delusion.  Pinel relates a case where a commission was appointed
to visit  the asylum and return  such  persons as were not insane.
They examined one patient repeatedly, and on successive days,
without being able to  discover  any evidence of insanity; they at
last ordered the papers to be made  out  for his liberation.  It was
necessary, before  being relieved, that  he should himself sign the
certificate.  On the paper being  placed before him he signed him-
self " Jesus Christ."
   7. The acts of  an insane man  often  evince the same forethought
and preparation as those of the sane.
   8. The  insane, notwithstanding  their proverbial  cunning, are         *
easily imposed upon.   A gentleman who was conveying an insane
patient  to the asylum  at Hartford,  was  abruptly addressed by his
patient's saying:  "I suppose I am your prisoner."  He was asked
why he thought so. He answered: "Because  I see you carry a
cane."  " Very well," said he, " you take the cane and then I will
be your prisoner," with this he was perfectly  content.
   9. Insane patients are often  conscious of their condition, and
understand the legal relations in which they are placed.


           THE PLEA OF INSANITY IN  CRIMINAL CASES.

   From what has been said, it will appear evident that no single
test or standard can be adopted  to determine the extent of crimi-
nality and of responsibility in  cases of insanity.   All modern
writers agree that the former test adopted by the courts of a know-
ledge of right and wrong is utterly  fallacious.  We have seen that
Judge Beardsley applied it to the particular act, and directed that
the prisoner should have sufficient intelligence to understand the
object and nature of a trial, and take the  necessary measures for
his defence.   Notwithstanding  a knowledge of right and  wrong          J
was laid down by the fifteen judges as the test, McNaughton was—
about the same time—acquitted on the ground of insanity, in entire
violence of this doctrine.  The rule laid down by Lord Erskine is
only applicable to  a particular class of cases.  It must, therefore,
be evident that  there  is  no particular standard  by which the
criminality of an act is to be judged.   We must take into con-
sideration all the attendant circumstances, the previous history of
the individual, his  character and conduct—the  causes which may
have incited him to the criminal act—the manner of its execution, 
                   MEDICAL JURISPRUDENCE OF INSANITY.        31

         and the subsequent conduct  of the  individual.  It is not mere ec-
         centricities of character and conduct that constitute evidences of
         insanity; it is not that a man differs in opinion from his neighbors
         or from other people.  We often meet with such men;  they are
         said to be eccentric, but no  one considers them insane, and in no
         court of justice would their eccentricities be received as an excuse
         for crime;  but it is that the individual differs from his former self.
         The careful, prudent, and cautious man  of a sudden becomes a
         careless, visionary  speculator;  his  property is  squandered and
         wasted—the fond and affectionate parent  becomes tyrannical and
,         morose—and these changes  are without any known adequate cause.
         If we find that  an individual whose  previous character had been
         without reproach  becomes  suddenly altered  and he commits a
         crime which was foreign  to his previous character, and  if at the
         same time it is certain that  there could be no motive which could
         actuate a sane man, we would almost instinctively say he must be
         insane, and in this opinion  we would probably be right, whatever
         might be the  decision of a jury.  A sane man never acts without
         a motive which in his view is a sufficient  excuse, however unrea-
         sonable and  unsatisfactory it may  seem to others.  The madman
         often acts without motive from an irresistible impulse which he is
♦         unable to restrain; or, if he assigns a reason  or motive, it is so
         absurd and inconsistent as  to show his insanity.   Thus, a mother
         will kill her child, whom she tenderly loves, because she has been
         commanded by the Almighty.   The entire  absence of all rational
         motive, though perhaps not of itself sufficient to prove insanity,
         would be a strong evidence in its favor.
            The manner in which an act is executed may  tend to designate
          its character.   Maniacs  are frequently excited  by the sight of
          murderous weapons.  The  act  is often committed, as  it were, in-
          stantaneously, and on the spur of the moment,  without provoca-
i         tion, or any known cause of excitement.  Dr. Brigham considered
         the rapidity with which an act was committed  as sometimes an
          evidence  of insanity.  Certainly they sometimes act with a celerity
          which would astonish a sane man.
            A murderer  sheds no  more  blood than  is necessary for the ac-
          complishment of his object; a madman often kills indiscriminately
          all who come within his reach.  An insane man rarely has an
          accomplice; a murderer often.
            The murderer  either  premeditates the act, or  commits it under
          the excitement  of strong  provocation, and, if detected, either denies 
32
REPORT ON
or professes his penitence, or sues for pardon, or exults in the act
as one of justifiable vengeance.  The maniac often plots the accom-
plishment of his object, and  conceals his intentions, but rarely
troubles himself about concealment when the act is accomplished.
Sometimes, however, and  where the evidence of insanity is  most
marked, great ingenuity is manifested in concealing the crime.  An
experienced observer, and one familiar with the insane,  is often
able to determine  from the looks of a patient, not only that he is
insane, but the character of the insanity.   I once saw the late Dr.
Brigham, when on the witness's stand—after observing that he
could usually tell  an insane person from his looks—point to an
individual  in  the  back  part  of  a  crowded  court room,  saying,
" There is a crazy man," on which the  individual sprung up say-
ing, " If  he means  me, I can prove by a dozen witnesses that I am
not crazy."  It  must be  confessed that cases occasionally occur
where it  is difficult determining the existence or non-existence of
insanity; but it is  believed that cases are very rare where a person
who, from experience and observation is qualified to judge, cannot
come to  a satisfactory conclusion.  Unfortunately, most medical
men have paid but little attention to the subject.  Patients seldom
remain long under their care, being  usually removed to an asylum;
consequently, little opportunity is afforded of studying  its pecu-
liarities.
CASES IN WHICH THE QUESTION OF INSANITY BECOMES A SUBJECT OF
         INQUIRY IN THE COURTS OF THE UNITED STATES.

  I.  The right and power of confinement, and personal liberty of
the insane.
  II. Capacity to perform particular acts, as the disposal of pro-
perty by will; the  making  and the execution of particular con-          )
tracts, where the question is brought into court by contesting the
validity of  the particular act.
  III. General business capacity, in which case the question arises
by petition to the court or chancellor for a decree pronouncing the
party to be incapable, from lunacy or habitual drunkenness, of
managing his  property and transferring it to the care of a com-
mittee.
  IY. Responsibility for crime.
  In these  several cases, the evidence of insanity, and the amount 
          MEDICAL JURISPRUDENCE OF INSANITY.        33

of evidence required, would be  different.  The evidence might be
sufficient to invalidate a particular contract, where there was  sus-
picion of fraud or improper influence used, though it might not be
proper to deprive the individual of the general management of his
property.  Again, it might  be proper to take measures to prevent
a man from wasting or squandering his property, when it would be
very unjust to  confine him in  an asylum.  Although it might be
proper to deprive a man of the control of his property, and even
to restrain  his personal liberty,  it does not necessarily follow that
his insanity is of such a character as to  destroy his responsibility
for crime.
     I. WHAT KIND AND DEGREE OF INSANITY SHOULD DEPRIVE
                   A PERSON OF HIS LIBERTY.

   In all  civilized  countries, making  any claim to freedom, the
liberty of the subject is  secured  by constitutional provisions, and
the  statute-books  abound with provisions to enforce and  protect
this most sacred of rights.   Neither life  nor property is guarded
with the same care, because personal liberty lies  at the very foun-
dation of every free government.   It is  not a little remarkable
that, both in England and in this  country, the bearing and effect
of insanity on this  important privilege have  not been clearly de-
fined and established  by law.  Strange as  it may seem, in not a
single State, so far as I have been able  to learn, is there any statute
law pointing out the circumstances  under which a person  may be
deprived of his  liberty on the  plea of insanity;  and if we resort
to the common  law, and examine the  decisions under it, we only
find a series of conflicting decisions. Most of our lunatic asylums
have been established  under the  auspices  of the States, and many
of them have some  regulations for the admission of patients; but
there are no statute  laws regulating their admission.  In  the State
of New York, and probably in many of the other States, there are
provisions that,  if complaint is made to a justice of the peace,  or a
judicial officer, that a certain individual is insane, and unsafe to be
permitted to go  at large, he may, on the  certificate  of two physi-
cians, order his confinement. If  a  person who is a pauper, or sup-
ported at the public charge, becomes insane, the overseers of the
poor, or poor-master, may place him in the asylum  on the certifi-
cate of two physicians; but, in a large  proportion of cases, patients 
34
REPORT ON
are taken to an  asylum by their friends or connections, without
any preliminary trial or evidence.  It is true that a person unjustly
confined may sometimes recover his liberty by a writ of habeas cor-
pus, and may seek redress for false imprisonment by a suit at law ;
but surely it would be much better for the patient and his friends,
as well as a protection to those who assisted in  conveying him to
an  asylum, that there should be some fixed legal regulation.  No
one individual should have the absolute control over the liberty of
another, and certainly a person, for a friendly and  benevolent act
to  a neighbor, should not expose himself to be persecuted with
law-suits, and perhaps mulcted in heavy damages. Any regulations
that might be adopted, should be modified by the varying circum-
stances of the case.  In ordinary cases of diseases, where a person
is suddenly  stricken down, he becomes dependent on the care and
attention of his kindred and friends.  To minister to the suffering
and wants of those we love, is considered a pleasure instead of a bur-
den, and at first view it would seem that it could make no material
difference whether it was the brain or some other organ which was
diseased; and, in most cases, all that would be necessary would be a
legal provision sanctioning the seclusion or confinement of an in-
sane person by his friends or next of kin.  A few years since,
Chief Justice Shaw, of  Massachusetts, laid down the broad princi-
ple that the  friends of an insane person are authorized in confining
him in a hospital by "the great law of humanity."1   On the other
hand, the Lord Chief Baron of the English Court of Exchequer
remarked that insane  persons could not be legally held in confine-
ment, unless dangerous to themselves or to others.2
  In an able article on this  subject by Dt. Ray, read at a meeting
of the Association of Medical Superintendents of American Institu-
tions for the Insane, June, 1850, he recommends that a law should
be passed authorizing the friends  to confine a person, in all cases
where  there was  no doubt  of  the insanity, thus securing the im-
portant considerations of dispatch, privacy, and those rights which
naturally flow from the domestic relations, and that, in cases of
doubt, a commission should be appointed similar to that for depriv-
ing a person of the control of his property, and that the individual
should be brought in  person before them.  It is a common obser-
vation that the  chance of recovery is very much increased by an

         1 Law Reporter, Book viii. p. 277.
         2 Nottidge v. Ripley, Law Reporter, N. S., vol. ii. p. 277. 
          MEDICAL JURISPRUDENCE OF  INSANITY.        35

early removal to an asylum;  and it is well known that many of
the cases of suicide, now becoming so frequent, are  owing to the
incipient development of insanity.   As early a removal as possible
to a well-conducted asylum is, therefore, the dictate of humanity
and prudence.   The precise amount of insanity, to justify such re-
moval, must be judged of by the friends and relatives.


 II. WHAT DEGREE OF INSANITY INVALIDATES A CONTRACT OR WILL.

   1. In regard to idiots and lunatics, in the ordinary  acceptation of
the term, there can be no question. Whatever acts they may perform
are by law considered invalid, and all control over their property
is taken from them.  It is in the minor forms of insanity, as in
imbecility, partial insanity, lucid intervals, and intoxication, that
the question arises  as  to the validity of contracts.  The general
principle seems to be  that  of the individual possessing sufficient
capacity to attend to the ordinary duties of life; if the contract
itself is not tainted with the appearance of fraud, and no undue influ-
ence can be shown to have been used, it should be considered valid.
On the other hand, if the persons had not been considered competent
to manage their affairs, had been under the charge of guardians, or
that fraud or improper influences had been used, the contract would
be considered invalid.   In cases of wills, the courts  have been go-
verned  more by the character of the instrument, and the apparent
sanity at the time of making the will, than on any evidence of in-
sanity previous to or subsequent to the making of the will.  In a case
of contested will, where the writer  was called as a witness, it was
clearly  proved that  the individual  had been insane; that  he  had
attempted to  commit suicide  previous to the making of the will,
and succeeded in hanging himself subsequently.  It was admitted
that the will was a judicious  disposition  of  his  property, and the
gentleman who drew the will and witnessed  it  testified that at the
time there was  no evidence of insanity.  The will was sustained.
In the celebrated case of Lord Portsmouth, the judge before whom
the case was tried, not only came to the conclusion that Lord Ports-
mouth was of unsound  mind, and his marriage  consequently inva-
lid, but the broad position was taken by him that weakness alone
when circumvented  by fraud, would be sufficient to invalidate so
solemn  a contract as marriage.  While, on the one hand, the courts
will not lend their aid  to execute or carry into effect a contract, 
36
REPORT ON
entered into by an  incompetent person, unless, perhaps, for neces-
saries, where the fact of incapacity was  known to the creditor;
yet such is not  the  law when the incapacity was unknown, and no
advantage had been taken, and particularly if the contract had been
in part executed.
   2. Partial Insanity.—Without at present entering into a conside-
ration of the question of the possibility of partial  insanity, it  is
sufficient to state that, although there have been some decisions
which may be  considered exceptions, yet  the general  rule seems
established that partial insanity does not invalidate a contract, un-
less it involves the  particular subject of delusion.
   The same principle applies to the making of a will.  The mere
existence of eccentricity, or even the  existence of delusion, if the
individual  at the time of making the will had ordinary business
capacity, does not impair its validity, unless  it appear that such
delusion has influenced the  person in  making the will, as if such
a person have an  unreasonable prejudice against a person  or per-
sons,  who are  the natural and  legal heirs, and for the purpose  of
depriving them of their natural rights, makes a different disposition
of his property.
   3. Lucid Intervals.—A  person who  is proved to be, or to have
been, actually insane at the time of making a contract, or making
a will, of course has no power of making a valid disposition of his
property.  It may,  however, be  contended  that, although a person
may be proved to have been previously insane, or to be insane  at
the present time, yet at the  time of making the contract he had a
lucid interval, in such  case the burden of proof lies with those who
would maintain the validity of the contract.   The  proof  of pre-
vious insanity is considered prima facie evidence of insanity.  If,
however, it can be clearly shown that there was an actual restora-
tion of reason at the  time, it is considered valid.   The older law
writers dwelt at considerable length on the subject of lucid inter-
vals as of frequent occurrence; but writers on insanity who have
had most opportunity of judging, are rather skeptical on the sub-
ject, and whilst they admit that insane patients  are at times more
or less violent,  they contend that they can never be  considered  as
rational and responsible agents, unless there is a complete recovery
and restoration to reason.  It is not then sufficient to prove a mere
subsidence of excitement, but a complete recovery.   A somewhat
different doctrine, however, has been applied to idiots, as it is justly
supposed that the disease does not vary.   If they are  proved  to 
          MEDICAL  JURISPRUDENCE OF INSANITY.        37

have transacted business in a rational manner, it is deemed a proof
of business capacity.   When no extraneous influence is shown to
have been used, the character of the act itself goes far to determine
the capacity of the party at the time.
  4. Intoxication.—It is  generally  admitted that intoxication dis-
qualifies a man from making a valid contract or will.  It is, how-
ever, on the principle that there is fraud, either open or implied,
as it is contended that no person would make a contract with a
drunken man, unless  he had some sinister design.  It has even
been considered a valid defence, as against an innocent party, as in
case of an indorsement of  a note; but, if a man is capable of writ-
ing his name  legibly, it  is doubtful whether a jury would excuse
him on the ground of incapacity.   A man is not, however, permit-
ted to  take advantage of his  own acts under this plea, as where a
man has purchased goods, and appropriated them to his own use,
and then sets up the plea of incompetence as a defence.  In actions
for personal injury to the person or property of another, the exist-
ence of intoxication is no defence;  but, in a case Of accident from
negligence or oversight, the existence of intoxication may be proved.
Thus,  in a suit for damages for running a sleigh against the plain-
tiff, Justice Gibson said the evidence of intoxication ought to have
been received, not because a drunken man's acts are different from
a sober man's acts, but because, where the evidence of negligence
is nearly balanced, the fact of drunkenness might turn the scale,
inasmuch as a man  partially bereft of his faculties would  be less
observant than if he  was  sober, and  less regardful of the safety
of others.  For  this  purpose, but  certainly not to influence the
damages, the evidence ought to have been admitted.
  Drunkenness to such an extent as to render  a man unconscious
of what he  is doing, or even in  a  slight degree, when  it renders
him more subservient to the influence of others, is sufficient to in-
validate a will;  but the proof of habitual drunkenness, unless it
appears that he was  under the influence  of liquor at the  time, or
that it  has impaired his faculties to such an extent as to disqualify
him for  the transaction  of ordinary business, will not destroy its
validity.
4 
38
REPORT  ON
 III. WHAT IS NECESSARY TO BE PROVED TO DEPRIVE A MAN OF HIS
         ESTATE, OR THE MANAGEMENT OF HIS PROPERTY.

  In England, and most if not all of the States in this country, pro-
vision is made by law for the protection of the property of such
persons as, from unsoundness of mind or  from habitual drunken-
ness, are incapable of managing it themselves.   When any person
is suspected  of such disability from either of the above causes, any
person having an interest in the estate may make application to the
proper judicial officer.  On such application  being received, the
judge appoints a commission to examine into the  facts of the
case;  such commission summons a jury,  who, after hearing the
testimony on the respective sides, and the charge of the commis-
sioner  as to  the law, return their verdict whether the respondent
is, from lunacy or habitual drunkenness, incapable of managing
his estate.  If the  verdict is in the affirmative, the judge then ap-
points  a committee to take charge of the estate.  The respondent,
however, has the right 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 manner as any other contested fact.
  In an examination of this character, the witness is not to confine
his examination to the validity of any single act, but  the general
capacity for  managing his affairs.  There are many cases on  record
of persons who have managed their affairs with great shrewdness
and success, and yet on some subjects  have been clearly insane.
On the other hand, no  matter how much shrewdness he may mani-
fest at times, if he is reckless  and  improvident  in  the general
management of his affairs, it may be necessary to take from him
the control and management of his property.   The first question is,
has the respondent sufficient mental capacity ?  If it is decided that
he has, the  next question is: Are  his  capacity and judgment so
perverted by insanity or habitual intemperance, as to deprive him
of the power of control over his actions ?
   In regard to habitual drunkenness, it is evident that occasional
intoxication does not tender a man an habitual  drunkard.  Neither,
on the other hand, does it require that a man should be constantly
drunk. Justice Knox, after stating the difficulties of the case, and
that it was one for the  jury to decide, adds: " The court has no hesi- 
          MEDICAL JURISPRUDENCE OF  INSANITY.        39

tation in saying, that the man who is intoxicated, or drunk the one
half of his time, should be pronounced an habitual drunkard."


 IV. WHAT DEGREE OF INSANITY AVOIDS RESPONSIBILITY FOR CRIME.

   Much of the difficulty and confusion on this subject, it is believed,
has arisen from the attempt on the part of the courts to establish a
general arbitrary rule for all the different forms of insanity.  Thus,
we are told by the courts, both in England  and the United States,
that the true test is a knowledge of right and wrong.   Some state
that it is not a general knowledge of right and wrong, but a know-
ledge as regards the particular act.  Lord  Erskine, having a case
in which this doctrine would not apply, insisted that the existence
of delusion was the true test; whilst some  recent charges have in-
structed the jury that, "if they believed the  prisoner was  impelled
by an irresistible impulse which he could not control, he should be
acquitted."   Let us examine these several tests separately, and see
whether it is not possible to reconcile the different positions taken
by the courts.
   1.  When the defendant is incapable of  distinguishing between
right and wrong in  general terms.  Though this was formerly the
doctrine held by the courts, and is still occasionally propounded to
the jury, it  is so contrary to reason and humanity as to be generally
abandoned.   Certainly nine-tenths of the patients confined in  our
asylum can distinguish  between  right and  wrong in the abstract.
 On one occasion, the late Dr. Brigham questioned one of the crazy -
est patients in the asylum, and  asked him  if it was right for  one
 man to kill another.  The reply was:  " It  would not be  right for
you, or any one else;  but it would be right for me; for I am  God
Almighty, and have a  right to do what I please."
   2.  When the defendant is incapable of  distinguishing between
right and wrong in reference to the particular act.  In  cases of
idiocy, imbecility, and some cases of general mania, the question
 whether the prisoner had sufficient capacity  to appreciate the nature
of the crime and its consequences, is the true question to be put to
the jury.  The rule laid down by Judge Beardsley, in the case of
 Wm. Freeman, is perhaps the just one.  In order to be tried, the
 prisoner should have sufficient capacity to understand his situation,
 and to employ counsel, and direct  as to his defence.   The witness, 
40
REPORT ON
in judging of the capacity of the prisoner, must judge not merely
from his present appearance, but also his antecedents, his previous
history, the injuries he may have received, his  education, and the
question whether his parents or family have been insane.  In the
answer  of  the  fifteen judges  in England, they say:  "The  jury
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 to establish a defence on the  ground of insanity, it must  be
clearly proved  that, at the  time of committing  the act, the party
accused 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
doing, or, if he did know it, that he did not know that he was doing
what was wrong."
   3. When the defendant is laboring under an insane delusion.  In
the trial of Hadfield, in 1800, Lord Erskine took the position and
maintained it with  all the force of his eloquence, that delusion is
the true test of insanity, thus repudiating the test of knowledge of
right and wrong. After showing that the test, as laid down by the
attorney general, only applies to idiots and persons laboring under
delirium, he says:  "Delusion, therefore, where there is no frenzy
or raving madness,  is the true character of insanity; and where it
cannot be predicated of a man standing for life or death for a crime,
he ought not in my  opinion to be acquitted.  I must convince you,
not only that the unhappy prisoner was a lunatic within my defini-
tion of lunacy, but that the act in question  was the immediate un-
qualified offspring of the disease?
   The question propounded to the fifteen judges was:  "If a person
under an insane delusion as  to existing facts, commits an offence in
consequence  thereof,  is he  thereby excused?"   They say: "The
answer must depend upon the nature of the delusion;  but making
the same assumption as we did before, viz., 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 responsi-
bility,  as if the facts which  he supposes to  exist were real.  For
example, if under the influence of his delusion, he supposed another
man to be  in the act of attempting to take away his  life, and he
kills that man as he supposes in self-defence, he would be  exempt
from  punishment.  If the delusion was that the deceased had in-
flicted a serious injury to his character and fortune, and he killed
him in revenge for such supposed injury, he would be  liable to 
MEDICAL  JURISPRUDENCE OF INSANITY.        41
punishment."   The mere existence of  delusion is  not therefore
sufficient to exempt from responsibility.
  There are many persons in  the community laboring under delu-
sion without  impairing their  usefulness.  But a few years since,
there were many persons who firmly believed the world was coming
to an end at a particular time, and many good citizens at the present
time believe they can converse with their departed friends through
the agency of spiritual mediums.   Though these are no doubt de-
lusions, they  would not  properly be termed insane delusion.   In-
sanity we believe to be  caused  by disease  or  disordered functions
of the brain.   To constitute an insane delusion, it  must arise from
such cause, of which there will  be some evidence aside from the
delusion  itself.1   To excuse for the commission of crime, the delu-
sion must not only be insane, but the crime must be the " immediate
unqualified offspring of the disease."2  Thus, a man may believe he
can control the motion of the heavenly bodies, or that he is Gover-
nor of the State, or President of the United States.   And yet, if he
was to commit a homicide from motives of revenge or to appropriate
the property  of  another to his own use, he would be held respon-
 sible.  If, on the contrary, he believed  that the act was necessary
 to  save his own  life, or, as  has frequently been  the case, he firmly
 believes he was  commanded by a higher power to commit the act,
 and that it was  his duty to obey, though fully aware of the conse-
 quences, he must be considered irresponsible.   Some years since, a
 man was tried for the murder of his two children.  He was proved
 to  have  been steady,  industrious, and tenderly attached to his
 family, and the only reason he  could give was that he had  been
 commanded from heaven to destroy them, and thus save them from
 the suffering and misery of this  life.  Several  letters which the
 writer saw written to his wife whilst in prison  breathe  forth the
 most ardent  attachment to her and the  children.   He was tried fo*

   • The term delusion, as used in a medico-legal sense, is somewhat different from
 the general acceptation of the term.  Bucknell thus defines it: "A delusion is a
 belief in the'existence of things which have no  existence in reality, or an errone-
 ous perception of the nature of things, or of their relation to each other occasioned
 by cerebro-mental disease.
   2 Dr. Bucknell dissents from this generally received doctrine, and contends that
 as  an insane delusion proves the existence of diseased action of the brain, and
 consequently the existence of insanity, the person should be exempt from punish-
 ment, though there did not appear any necessary connection between the delusion
 and the particular criminal act. 
42
REPORT ON
murder, convicted, and sentenced to execution.   The letters written
after the sentence breathe no complaints, no fears; he spoke freely in
them of the time appointed for his execution, as the time when he
would  join  his children, who had  gone  before  him  to  heaven.
Through the interference of some kind friends, his punishment was
commuted to imprisonment for life.
  4. Where the defendant is impelled by a morbid and uncontrol-
lable impulse.   Few cases have arisen more difficult of adjudication
than those under consideration.   Whilst no doubt can exist that
cases of this character occur, and that where it really exists, the
individual should not be held responsible, yet the maxim requires
to be guarded  with extreme care, to prevent abuse.  In the trial of
Rogers, for killing the warden in the Massachusetts State Prison,
in 1844, Chief Justice Shaw says: " Are the facts of such a charac-
ter, 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 they in-
dicate  such a  state of diseased 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."  Chief
Justice Gibson,  in a case tried in Pennsylvania, in 1846, in his
charge to the jury, after speaking of the test of right  and wrong,
adds:  " But there is a moral or homicidal  insanity consisting of an
irresistible inclination to kill, or to commit some  other particular
offence.  There may be some insane ligament pressing on the mind,
drawing it  to a consequence which it cannot avoid, and placing it
under  a coercion which, while its results  are clearly perceived, is
incapable of  resistance.   The  doctrine which acknowledges this
mania is dangerous in its relations, and can be recognized only in
the clearest cases."
   Numerous  cases are on record where  mothers under the influ-
ence of such impulse, have killed their children, and of others who
have begged to be confined, or to have their children removed from
their presence.   A case is related  of a gentleman who  had been
suffering from ill health, who on one occasion ordered his whole
family to quit the  room, and subsequently locked himself in  his
own room.  His physician found him in a state  of great excite-
ment,  when he informed him that it was with the  utmost difficulty
that he restrained himself; had his family not quitted  the room  he 
          MEDICAL JURISPRUDENCE OF INSANITY.        43

certainly would have killed them;  and that he had locked himself
in to prevent doing them an injury.  Not  long since, the writer
was consulted by a gentleman, who, as he learned from the friend,
had been melancholy and low spirited, which rendered his friends
somewhat anxious.  When on one occasion  he seized an axe and
split open  the head of a favorite  dog, no provocation  had been
given, and on questioning him, he seemed unable to give any reason
or  explanation whatever.  A very intelligent gentleman, a friend
of the writer, mentioned a few days since a circumstance  which oc-
curred to him some years since, and which  seems to throw some
light on the  subject of impulsive  insanity.  At the time  when it
was fashionable  to exhibit the effects of nitrous oxide, and of sul-
phuric ether by breathing it, among others he breathed the ether;
being of a very excitable temperament, he was very much affected,
and for the time  entirely lost his consciousness.   For some time
afterwards, whenever  much  excited, he felt precisely the  same
symptoms as when he took the ether, until he became alarmed for
the  result.  On  one occasion, he struck his room-mate a severe
blow in the face;  on another, threw a billet of wood at a fellow
student, which might have been attended with serious consequences
—acts which  nothing would  have  induced him to do in his right
mind, and of which he had no knowledge  or recollection when the
paroxysm was over.  Whilst therefore, it  would be unwise to re-
ject the doctrine of impulsive insanity, some  collateral evidence,
such as previous or subsequent ill health, its  contradiction with the
former character and  conduct of the prisoner, the  absence of all
rational motive, or the  hereditary predisposition;  should be re-
quired.
   Pinel was  the first to advance the idea of impulsive insanity.
He says:  "There  are madmen in  whom  there is no perceptible
aberration of the intellectual processes; of the perception, judgment,
or memory, and  yet a perversion in the manifestations of the will
in a blind impulse to the commission of violence and blood-thirsty
rage, without any assignable dominant idea, or any delusion of the
imagination which could cause such a propensity."  Although the
doctrine of impulsive  insanity has been sustained  by many  able
writers, and,  as we have seen, been  sometimes  admitted  by  the
courts, there are not wanting recent writers,  who reject the whole
doctrine  of moral insanity under which  this particular  form is
placed.  Among these, are Heinrich, Lenbuscher, Winslow, Mayo,
Bucknell and Wharton.  Dr. Bucknell says: "The  existence of 
44
REPORT ON
the third class in which the impulse is sudden and unreflected on,
admits of grave doubt."   " The testimony in favor of the existence
of such a variety is very scanty and unsatisfactory; and it is im-
probable that  cerebro-mental disease can develop itself in so sud-
den a  manner.  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 stages of diseased feeling
had been unobserved  by others, and  unacknowledged  by  the
patient."1
  When we come to examine the opinion expressed by Dr. B., it
will not be found so adverse to the  received opinion as we  might
at first suppose.  That such  cases are of frequent occurrence, the
testimony is ample. Dr. B. thinks it one of the forms of develop-
ment of pre-existing disease.  No writers, so far as our knowledge
extends, have ever supposed  that the disease of  which the homi-
cidal paroxysm  was but  the expression, occurred  so suddenly,
but that the patient had the art or power to conceal it, until it sud-
denly burst forth.
    V. HOW INTOXICATION AFFECTS RESPONSIBILITY FOR CRIME.

  1. Insanity, when produced by intemperance, assuming the form
of delirium tremens, affects the responsibility in the same way as
insanity produced by any other cause.   Although a contrary doc-
trine has some time been held, and persons have been punished for
crimes committed whilst  under a paroxysm of delirium tremens,
yet the weight of authority would place them on the same footing
as persons insane from any other cause.  As far as concerns tem-
porary incapacity, delirium tremens acts in  the same way as any
other form  of delirium, and when complete, destroys the moral as-
well as the intellectual responsibility.  The argument that, because
it arose from voluntary intemperance, has no force, as a large pro-
portion of the cases of insanity from other causes arise from vices
or follies voluntarily committed.
  2. Insanity immediately produced by intoxication, does not de-
stroy responsibility, when the patient  made  himself voluntarily
intoxicated.  Drunkenness, unless it be extreme, does not entirely

  1 Dr. B. objects to the term impulsive  insanity, and would substitute the term
insanity, without delusion. 
           MEDICAL JURISPRUDENCE OF INSANITY.        45

 destroy the  moral or intellectual powers, and  although there are
 some persons who seem entirely bereft of reason, and become furi-
 ously mad, yet, knowing as they do the effect which liquor pro-
 duces on them, if they voluntarily place themselves in the condi-
 tion, justice  and  a due protection  of the community require that
 they should  be held responsible. There is one circumstance which
 might  appeal  strongly to the  sympathy of  a jury,  though it is
 doubtful  whether it should qualify  the above rule, viz.,  when a
 person, from previous injury to the brain, or from disease or pecu-
 liarity of the constitution, is rendered deranged  by a quantity of
 liquor which  would not  affect a  person differently constituted.
 When the question of malice prepense is agitated, the intoxication
 of the party may be shown.  Thus, a man committed homicide by
 killing his wife, under circumstances where the act itself might  be
 considered evidence of malice prepense, had  it  not  been  made  to
 appear that  both  husband and wife were drunk at the time.

   Summary.—From the above, the following propositions may  be
 considered as established by various judicial decisions, in this coun-
 try, where the plea of insanity is set up in defence in criminal pro-
 secution.
   1. Was the  prisoner—at the  time  of committing  the act—capa-
 ble  of distinguishing between  right and wrong, in  regard to the
 particular act? i.  e., was he capable of appreciating the criminality
 of the act,  and  the consequences which would result,  and the
 penalty for  its commission?  If so, he  is considered responsible.
 Or,
   2. Was the prisoner, at the time  of committing the act, laboring
 under an  insane  delusion?   The mere fact that the prisoner was
 laboring under a delusion is not considered a justification, unless
 there is a direct connection between the delusion and the criminal
 act.   Or,
   3. Was the prisoner  impelled to the commission of the act by
 an insane impulse which he could not control?  By  an insane im-
 pulse is not meant a mere burst of rage or passion,  or excitement
 which he may not control, but an impulse resulting  from cerebro-
 mental  disease; consequently, it is  necessary to show some other
 evidence of disease than the act itself, as a change  in his charac-
 ter; its  incompatibility with his  former character and conduct; the
absence of all motive, or of motives which could  influence a sane
man; the existence of insanity in his family, or a hereditary pre- 
46
REPORT  ON
disposition; a  previous injury, or  ill-health, showing  evidence  of
disease.  In  the absence  of such  collateral evidence the prisoner
would usually  be held responsible.1
   The question to the jury should be simply, Is he proved to be
insane:  not whether he can distinguish  between right and  wrong,
or  any other particular test.   The divisions into intellectual  and
moral insanity; into general and partial, though appropriate  in a
scientific work on insanity, are not recognized by the courts of jus-
tice.
   The law presumes every person sane until the contrary is proved.
Consequently,  the burden of proof rests  with those claiming an
exemption on  the plea of insanity;  but if the person  has before
been proved to have been insane, the presumption is that he is still
so, and the prosecution must prove his  recovery.   In the  case  of
the People v. William Spear, for arson, in burning the lunatic asy-
lum, tried  at the Oneida Circuit, in March, 1858, it appeared that
some years previous the prisoner had been tried for arson in New
York, and  acquitted on the ground of insanity, and sent to the asy-
lum at Utica.  Judge Allen  charged the jury that the prosecution
must prove his recovery at the time the  act was committed.

  1 It has been contended by some that by long indulgence,  the passions may
acquire such  force and strength that they are no longer under the control of the
will, or, in other words, irresistible, and that such persons should be considered
insane, and consequently irresponsible, though there is no evidence of disease.  It
is very questionable whether, in the absence of  disease, they ever  acquire such
force that they cannot be controlled by sufficiently powerful motives ; but, admit  •
ting its truth, it would be very dangerous to admit that it renders a person irre-
sponsible, and it would be a grave question whether the good of the community
did not demand that it be placed in the same category as a man who voluntarily
rendered himself insane from drunkenness.  Dr.  Bucknell says: " The real ques-
tion is not whether the  emotions occasioning the overt act are beyond the power
of the individual to control, but whether they are the result of disease."
  It may be said that, as we cannot know the disease of the brain, except by the
symptoms, and that insanity is an evidence of diseased brain; that it is only rea-
soning in a circle to say we must prove disease of the brain to prove insanity ; this
is partly, but not strictly true.  There are many evidences of disease of the brain,
that are not  evidences  of insanity, and disease  of the  brain may exist without
insanity.  The act itself may not prove either insanity or disease, but  taken in
connection with other evidence of disease, may prove both disease of the brain
and insanity. 
MEDICAL JURISPRUDENCE OF  INSANITY.        47
                       FEIGNED INSANITY.

  Insanity is most frequently feigned to  escape  punishment for
crime, or by persons already convicted and  imprisoned to avoid the
punishment of labor,  and escape from prison.  Consequently,  it
is  seldom feigned, except  where some particular  object is to  be
gained.
  Idiocy is  seldom feigned, and when it  is, is easy of detection.
The previous history of the  individual would usually expose the
imposition.   In addition, the real idiot has  usually some deformity
of the head, which accounts for his condition.
  Imbecility, though not often feigned, is more so than idiotism, and
is more difficult of detection, as the distinction between this con-
dition of the mind and that of health  is not so marked as that of
idiocy ; still, where the previous history of the individual is known,
it would not be difficult  detecting the feigned disease.  It is only
in those cases where we are compelled to judge without this know-
ledge, that an intelligent physician might be deceived.  A memo-
rable case of this kind occurred in New York, in the case of Mrs.
Cochran, who, for a time, succeeded in baffling Dr. McDonald, and
others, until at last she was detected in listening at the key-hole of
her door to  overhear  the  consultation of  physicians  sent  to exa-
mine her.  In cases where the  previous history is unknown, the
peculiar expression of the countenance will aid in forming an opin-
ion.   The dull, stupid, and wandering look; the want of connec-
tion in  the ideas;  the pusillanimous and submissive manner, with
sudden  and strange gusts of passion, are difficult to assume.  The
history  of the individual, as given by himself, may aid us in form-
ing an opinion.  In the real imbecile, stupidity and shrewdness are
usually equally displayed on all subjects; but, when  feigned,
shrewdness will be manifested on subjects involving his own inte-
rest, or  the success of his scheme, and his stupidity on those which
are indifferent.  All the conversation of the person feigning tends
to criminate others, and exculpate himself, whilst that of the real
imbecile tends to criminate himself.
  Dementia, like the two former, is seldom feigned.  In attempting
it, the impostor generally indulges in pretended hallucinations and
mental  excitement, which is  inconsistent  with this  form of in-
sanity. 
48
REPORT ON
  Mania.—This form of insanity is more easily assumed, and more
difficult of detection than the preceding, and  consequently is more
frequently feigned.  The distinction between the true  and  the
feigned disease, though it may require time and close observation,
is usually not very difficult.  Most persons who  attempt to feign
mania, overact the part they assume,  and thus expose themselves
to detection.   The peculiar haggard look; the striking wildness of
the eye, of the real  maniac cannot be imitated.  The real maniac
will often pass days, and sometimes weeks, without sleep, or if he
sleeps at all, it will be disturbed and agitated; whereas, it is as dif-
ficult for a person feigning mania to avoid sleep, as it is for the real
maniac to obtain it.  Another  character  of true mania  is the in-
sensibility to the operation of  medicines,  particularly opiates;
whereas, the feigned maniac cannot resist their operation.  The
true maniac  is comparatively insensible  to external impressions,
and resists, in a remarkable degree,  the influence of cold, hunger,
and thirst, without complaint.  A peculiar odor or emanation, given
off by the body of the true maniac, is  generally mentioned as  a
means  of detection.  By  carefully  watching a person feigning
mania, it will be found  impossible for him to maintain, for  a long
time, his pretended  excitement; he  will, therefore, become  quiet,
when he supposes he is not  observed, and resume it whenever any
one is present to notice it.   That peculiar perversion of  the moral
feelings, which causes the maniac to  dislike his friends,  not being
generally understood, is not often assumed.
   Partial Intellectual Mania.—Few  persons  who have  not made
insanity a particular study, are sufficiently acquainted  with the
peculiar form under consideration, to attempt  its imitation.  Per-
sons pretending partial  insanity  are constantly recurring  to and
leading to the subject of their particular delusion.  Whereas the
person who is really insane, seldom refers to it unless closely ques-
tioned, as  if seeking to  avoid it, but when  questioned takes no
pains to reconcile his delusions with other facts.   The  ungovern-
able fury which opposition and argument produce in most maniacs
is a striking peculiarity of insanity.   Many of the peculiarities
mentioned as belonging to mania, such  as inability to  sleep, the
irritability of  temper, the violent prejudices  and  insensibility  to
impressions, belong equally to partial mania.
   Moral Insanity.—As this form of insanity has never been recog-
nized by the courts, as rendering the individual irresponsible for
crime, it would not be likely to be feigned. 
MEDICAL JURISPRUDENCE OF INSANITY.
           Concealed Insanity.—Though  many,  and perhaps  most insane
         persons, may for a time conceal the approach of the disease, yet
         when  fully formed, they can no longer so control their thoughts
         and actions as not to betray the disease.  I have, however, no doubt
         there are many in society who indulge in  strange delusions, who
         are on the verge of insanity, and who, could  their thoughts and
         feelings be known, would  be considered as maniacs, and yet suc-
         ceed in controlling their  actions, and eventually recover without
         their condition being ever known to any but themselves.


              TESTIMONY OF  SKILLED WITNESSES IN COURTS OF JUSTICE.

            The principal object of  all government is the protection of life,
         liberty, and property; it  is for this that laws are established and
         penalties attached to their violation, and that government may, per-
         haps, be considered best where  these objects are most  perfectly ac-
         complished.   Penalties are attached to the violations of the law for
         the purpose of preventing  their commission,  and by the force of
         example to prevent others from committing the same act; it is not
         for man to judge  and inflict punishment as punishment for the
4         transgression.  .The efficacy of punishment for  the  prevention of
         crime must depend in a great measure upon the certainty of detec-
         tion and the infliction of the punishment.   The celebrated Jeremy
         Bentham is said to  have expressed the opinion that a mild punish-
         ment, if it was certain to be inflicted, would be  more effectual in
         preventing crime than a  much more severe punishment, that was
         uncertain.  Perhaps, therefore, we would be justified in the asser-
         tion, that the  most  important officer connected with criminal juris-
         prudence, is the one upon whom devolves the  duty of investigation
         and detection of crime.  In this country that duty devolves mainly
♦      .   on the  coroner, an  office the faithful discharge  of the  duties of
         which demands talents of a high order, a knowledge of human na-
         ture, of the motives to criminal action, and the means resorted to
         by criminals to accomplish their object.  It is the particular duty
         of the coroner to examine into and investigate the cause of death
         when it occurs suddenly,  or under suspicious circumstances.  As
         almost every such case of death requires a post-mortem examination
         for its elucidation, there would seem a natural propriety of having
         a medical officer associated with the civil  authorities.  In  almost
         every country on the Continent of Europe, there  are medical offi- 
50
REPORT ON
cers appointed by government to assist and aid the authorities in
the investigation of crime.  In England, the coroner is authorized
to call to his aid any medical practitioner who has been in attend-
ance, or is in actual practice, and  to  pay him as for professional
services one guinea for testifying, and two guineas for a post-mortem
examination.  In the State of New York, the coroner is required
to call to his aid a medical man, but no provision is made for his
compensation; sometimes a slight remuneration is allowed by the
Board of Supervisors.  When a medical man is called to testify to
facts within  his knowledge, he  is in the capacity of an ordinary
witness, and is not expected  to express any opinion, or draw any
conclusions from  the facts.  If, for  instance, he has made a post-
mortem examination in a case of a wound, he should state the situa-
tion and character of the wound;  what parts are injured;  but  not
to express any opinion as to the effect of such an injury, or whether
or not it was the cause of death.   In most cases, however, the phy-
sician is called on to testify both  as an ordinary and as a  skilled
witness, i. e., to testify to the facts, and to express an opinion as to
the deductions to be  drawn from the facts.  It is  customary on
the trial for both parties to call witnesses, simply as  experts or
skilled witnesses; who, after hearing the testimony as to the facts,
are to give an  opinion as to the deductions to be drawn from them,
as in the above case;  after hearing the description  of the wound,
he gives an opinion as to the ordinary effect of such a wound,  but
not whether it was the cause of death in the particular case.  This
is a matter which belongs to the jury.   In  a case of suspected in-
sanity the witness hears the testimony, and  then states to the jury
what in the  testimony goes to prove  or disprove the supposition
of insanity.  It is the custom in this country for both  parties to
summon as many persons as  skilled witnesses as they please,  and
the numbers depend upon the interest  of the case, the  difficulties
involved, or the zeal and energy of the respective counsel. Any
medical man may be summoned as a skilled witness.
  Though the law requires that a  medical man when subpoenaed
should attend  the court for the purpose of giving  his testimony,
there is no provision made for paying him for his time and services,
or even defraying his necessary expenses.  If a medical man has a
knowledge of any facts connected with the  case, it  is his duty—as
that of any other good citizen—to attend court and give  his tes-
timony.  I am, however,  unable to see on what grounds a medical
man is  required to attend the court, and  hear the testimony, in 
          MEDICAL JURISPRUDENCE OF INSANITY.       51

order to qualify himself to form an opinion, and then to testify
before the court.   It would be just  as consistent  to require legal
gentlemen to attend the court, hear the testimony, and then aid the
court with the benefit of their opinion.  If the attendance of medi-
cal men  as  experts is  really necessary, they should be designated
by the court, and  not by the respective parties, and  should  not
only receive a reasonable compensation for their  professional  ser-
vices, but should be protected from insult and abuse from  the
counsel on the respective sides.
   The present system of permitting both parties to summon as
many witnesses, and whom they please, is not only oppressive to the
witnesses, but wastes the time of the court, prolongs the trial,  and
serves no useful purpose whatever.   Of course neither party would
call a witness to the stand without knowing something of  what he
will testify  to, and the  consequence is, that a dozen witnesses on
the respective  sides are  arrayed against each other, and it is  not
unfrequent  that the ingenuity of the counsel on the respective sides,
is more engaged in picking flaws in the testimony of  the adversa-
ry's witnesses, than in elucidating the truth or justice of the case.
The jury,  instead  of being enlightened,  is only  confused by  the
conflicting  testimony of the witnesses.  The only security for  the
medical  witness, when called  as an  expert—if he does not choose
to testify—is not  to acquire  the necessary information, and when
called to the stand, to say he  knows nothing about it, or that he
has formed  no opinion.   If,  however, he concludes to form an
opinion and testify, there are certain rules and regulations which
he should adopt, not only to give force to his testimony but for his
own protection.
   1. He should listen  attentively  to the testimony, as to all  the
facts  in  the case, and avail himself of every authentic means of
forming a correct opinion.
   2. He should studiously guard against being biassed, either by
popular  clamor, or because he is called by one side rather than the
other. He is to form his opinion exclusively from what appears in
evidence, excluding, as far as  possible, any previous prejudices, or
what he may have seen in the papers, or heard from rumor.
   3. The medical  witness is not to take into  consideration the in-
fluence which his  testimony may have on the prisoner at the  bar,
or the case under  consideration, if he is testifying as to facts.  He
states the facts as he understands them.   If it is a matter of opin- 
52
REPORT ON
ion, drawn from the facts, he should state it  honestly; but, if he
has doubts, he should express them.
  4. The expert is called to  testify as to the  bearing of the testi-
mony given, and though he may have his own doubts of the truth
of the testimony, yet, if it stands unimpeached, he must receive it
as true.  It is not proper for  him to  call in question the testimony
of another witness; at the same time, he is not required to say he
believes him, but can say that the testimony of the witness or wit-
nesses prove so and so, leaving the jury to judge of its credibility.
  5. A medical witness should not assume the province  of the
jury;  as, for  instance, to say  a  particular wound was the cause of
death; he should only state what would be the ordinary effect of
such  a wound; or, in  a question of insanity, that  the testimony
given was an evidence, or was not an evidence of insanity.
   6. A medical man, in giving his evidence, may refer to authority
as sustaining his opinion, but is not  permitted to read from books.
Such is the rule in  the English courts, and generally adopted in
this country.  I do not know how Dr. Beck fell into  the error of
expressing a contrary opinion.
   7.  The medical witness should have  his mind  fully  prepared,
before taking the stand, as  to what  he can testify  to, and his
reasons, if they are required.   He should, in his testimony, avoid,
as much  as possible, the use of technical or professional  terms,
which the jury would not be  likely to understand;  but if unavoid-
able,  then their meaning should be explained  to  the jury.   In
giving his testimony, he  should  keep cool and collected, and not
permit  himself  to be irritated or confused by the counsel; and
should  avoid introducing any expression or opinion  not  imme-
diately connected with the cause before the court.
   Much prejudice exists in the community against  the plea of in-
sanity in  criminal cases, and medical witnesses have  been unspar-
ingly denounced, because they dared to testify to  its existence in
opposition to popular  clamor,  because, as was asserted,  persons
who were not insane have sometimes  escaped under this plea.  It
is believed that in almost every case of this description, it  will be
found that it was the force of outside pressure sympathizing with
the prisoner, and  not  the testimony of  medical men,  that secured
his acquittal.  It has been contended by some, that it were better
that innocent men, or those  who were  really  insane, should some-
times suffer, than that punishment  should be rendered uncertain
through the plea of  insanity.  Such persons should remember that 
                     MEDICAL JURISPRUDENCE  OF INSANITY.        53

           it is only when the certainty of punishment is coupled with justice,
           that it is effectual in the prevention of crime.  The instinctive feel-
           ing of humanity revolts at the idea of inflicting the punishment of
           death on  a fellow-being who is not a responsible agent, and who is
           already, by  the  infliction of Divine  Providence,  suffering one of
           the sorest afflictions to which  man is liable, and thus the  very
           object of the severity would be defeated.
             If called  in a case  of supposed  insanity, the witness should
           examine the general appearance of the individual, the shape of his
           head and body, the expression of countenance, the  temperament,
1  i         his movements, gait, &c; ascertain the present and  previous con-
           dition of his general health, the organs of digestion, appetite, &c.;
           whether  he  sleeps well, is quiet or restless;  and  how affected  by
           cold;  ascertain  whether he  has any hereditary predisposition;
           whether  any other members of the  family  have  been insane,  or
           subject to fits or any marked  eccentricities  of character.  If the
           mind appears unsound, inquire how long it  has been so,  whether
           from infancy; if not, did it supervene on  any severe injury, dis-
           ease, or mental shock, or long-continued mental application?  Has
           he been subject to epileptic fits?  Has he indulged  in the use of
  ^        intoxicating liquor, or in any solitary vice?  Has he been subject
           to involuntary seminal discharges?  Does the state of his  mind or
           his feelings, taste, or habits, differ materially from what it was when
           he was reported sane?   If the  object of an examination is to test
           his capacity, get him to give an account of himself and family,
           what year he  was born, the occupation of himself or  friends, the
           use of money, &c.;  inquire where he had lived at different times,
           whom he was  acquainted with.  If the object is to test his sanity,
           and not his  capacity, ascertain,  if possible, if he has  any delusion.
           If the insanity is supposed to affect his moral feeling, inquire par-
           ticularly as to his motive.  When under  examination, the medical
           witness should have clear and distinct  ideas of what he states, and
           should not permit himself to be  driven from his position by sophis-
           try of counsel.  He should never  attempt to explain what he him-
           self does not  understand; it is better to say he does not know, than
           to give the counsel an opportunity of exposing his ignorance.
             It is a question not yet settled, whether it is proper to  put the
           question to a witness, whether he  considered  the  prisoner insane,
           after hearing the  testimony.  It is an  improper question to put to
           a witness, though it is often done.  On one  occasion, an  English
          judge censured a witness very severely for expressing an opinion,
                 5 
54
REPORT  ON
thus assuming the prerogatives of the court and jury.  A witness
should not answer  such a  question without first referring to the
court for  instruction.  The true  duty  of the witness  is to  state
what are, or what  not, the evidences of insanity which he  may
have seen.  When called as an expert, and  compelled to predicate
his opinion on the testimony given, he is called upon to testify as
to what has been proved.   It may happen to differ very widely
from his  own private  belief.  Thus, he may doubt the testimony
of a particular witness, but his testimony stands unimpeached. In
a case of supposed insanity, he may feel satisfied that, could the
facts be reached, the prisoner would be  found to  be insane; but
the defence has failed to show it, and the medical witness can  only
say what  has been  proved, and not what  he thinks may remain
unproved.
  It has been questioned whether  a medical man  who has not  paid
particular attention to the subject  of insanity should be  considered
an expert.  It has been contended  by Judge  Edmons, of New York,
and  the  sentiment  is  advanced by Judge  Hornblower,  of New
Jersey, that a physician who  has not paid  particular attention to
the subject, or  had an  opportunity of becoming acquainted with
the case, is no better qualified to judge  than an observing  person
who is not a physician, but who is familiar with the subject.  Judge
Hornblower says of medical men:  "If they have not been in the
habit of seeing him (i. e. the prisoner), if they were not familiar
with his  habits and symptoms, at or about the  time in question,
their opinions in relation to a particular individual are of no more
weight, and, in  my judgment, of not so  much weight, as those of
unprofessional persons, of good sense, who  have had ample oppor-
tunity for observation."  It is, however, no doubt true, that  pro-
fessional men who have made the subject of insanity a particular
study—who have had the charge of insane  patients, and have had
ample opportunity to study its phenomena—though they may have
never seen the prisoner before the trial, and are compelled to depend
on the testimony of other witnesses, are much more  competent to
judge of the existence  of insanity  than  unprofessional witnesses,
though of equal or superior natural capacity.  The following ex-
tract from the charge of Chief Justice Shaw, in the trial of Abner
Rogers, Jr., indicted for the murder of Charles Lincoln, Jr., January
30th, 1844, presents the generally received  doctrine as to the testi-
mony of  skilled witnesses:—
  "The opinions of professional men on  questions of this descrip- 
          MEDICAL JURISPRUDENCE OF  INSANITY.        55

tion are competent evidence, and in many cases are entitled to great
consideration and respect.  The rule of law in which this proof of
the opinion of witnesses who  know nothing of the actual facts of
the case is founded, is not peculiar to medical testimony, but is a
general rule, applicable to all  cases, when the question is one de-
pending on skill and  science in  any particular department.  In
general, it is the opinion of the jury which is to govern, and this
is to be founded upon the proof of the facts  laid before them.  But
some questions lie beyond the scope of the  observation and expe-
rience of  men in general, but are within the observation and expe-
rience of those whose peculiar pursuits and profession have brought
that class of facts frequently and habitually under their considera-
tion.  Shipmasters and seamen have peculiar means of acquiring
knowledge and  experience in whatever relates to seamanship and
nautical skill.
   " When, therefore, a question arises in a  court of justice on that
subject,  and certain facts are  proved by other witnesses, a ship-
master may be asked his opinion as  to the  character of such acts.
The same is true in regard to any  question of science, because
persons conversant with such science have  peculiar means, from a
larger and more exact  observation and long experience in such
departments of  science, of drawing correct  inferences from certain
facts, either  observed  by themselves, or testified to by other wit-
nesses.  A familiar instance  of  the application of this principle
occurs very often in cases of homicide, when, upon certain facts
being  testified to by other witnesses, medical persons are asked
whether, in their opinion, a particular wound described would be
an adequate cause, or  whether such  wound was in their opinion
the actual  cause  of death in  the  particular  case.  It is upon this
ground that the opinions of witnesses who have long been conver-
sant with insanity in its various forms, and  who have had the care
and superintendence of insane persons, are  received as competent
evidence, even  though they have  not had an opportunity to exa-
mine the particular patient, and  observe the symptoms and indi-
cations of  disease at the time of its supposed existence.   When
such opinions come from persons  of great experience, and in whose
correctness and  sobriety of judgment just confidence can be had,
they are of great weight, and  deserve  the respectful consideration
of the jury.
   " One caution  in regard to this point,  it is proper to add.  The
professional witnesses are not  to  judge of the credit of other wit- 
56  REPORT ON MEDICAL JURISPRUDENCE OF INSANITY.

nesses, or of the truth  of the facts testified  to by them.  It is for
the jury to decide whether such facts are satisfactorily proved.
The question to be put to the professional witnesses is this.   If the
symptoms and indications testified to by other witnesses are proved,
and if the jury are satisfied of the truth of them, whether in their
opinion the party was insane, and what was the nature and charac-
ter  of that insanity; what state  of mind did  they indicate, and
what they would expect would be the conduct of such a person in
any supposed circumstances?"