TRUE AND FALSE EXPERTS. 
BY EUGENE GRISSOM, M. D., LL. D., 
Superintendent Insane Asylum for North Carolina, Raleigh. 
[From the American Journal of Insanity, for July, 1878. True and False Experts.* 
BY EUGENE GRISSOM, M. D., LL. D., 
Superintendent Insane Asylum for North Carolina, Raleigh. 
The full recognition of* the harmony that should 
'exist between the claims of medical science and the 
demands of criminal law, is a social problem of the 
first magnitude. 
Notwithstanding the rich and varied literature, the 
manifold discussions, the numerous trials with their 
-accompanying forensic display, that enter into the his- 
tory of the struggle to secure substantial justice for 
the insane, or to defeat the pretences of the wicked, 
the subject is yet of no less interest than importance. 
It is of interest as are all the questions that involve the 
study of mankind by man ; it is of importance as upon 
the conclusions hang the lives of so many fellow-beings. 
Although it has been so ably treated by members of 
.this body, that their conclusions have modified the 
medical jurisprudence of more than one nation of the 
earth, the subject has yet a timely interest from the 
persistent efforts that have been made to turn back the 
hands upon the clock of time, and to return to ancient 
legal by-ways, long since abandoned for the open roads 
of scientific investigation established since the days of 
Coke and Blackstone. . 
* Read before the Association of American Superintendents, Wasbi 
D. C., May, 1878. In modern times, insanity has been the subject of 
legal investigation, when questions of capacity for the 
management of affairs, or the validity of wills, or of 
confinement to prevent injury to self or others were in- 
volved, but most frequently probably when offered as a 
bar to punishment by criminal prosecution. 
It is the mutual relations of law and medicine in 
regard to the plea of irresponsibility in criminal offenses,, 
and the connection of expert testimony therewith, that 
we venture to examine at this time, under the convic- 
tion that whatever remains unsettled and doubtful in 
the law itself, whatever is injurious and misleading in 
the administration of justice, demands a speedy correc- 
tion as soon as recognized by the enlightened sense of 
mankind. 
It should be remembered that the physician must be 
the friend of the insane, and humanity demands that 
we consider and reconsider the fearful trust of the lives 
and reputations of the afflicted, until we shall be able 
in the fullness of time, to reach conclusions whose in- 
fluence for practical good will sooner or later be 
acknowledged, and the jurisprudence of a coming gen- 
eration adjust itself by an equity that shall have more 
of the divine element of Knowledge than the rude jus- 
tice of the Past. 
Chief Justice Shaw, in the case of Rogers,* defined the 
principles of expert testimony with clearness in the 
following language: 
The rule of Law, on which this proof of the opinion of witnesses, 
who know nothing of the actual facts of the case is founded, is not 
peculiar to medical testimony, but is a general rule, applicable to 
all cases, where the question is one depending on skill and science, 
in any peculiar department. In general, it is the opinion of the 
* Journal, of Insanity, Vol. T, p. 270. Trial of Rogers for the murdehof 
Lincoln. Worden (Mass.) Prison, 1844. 3 
jury which is to govern, and this is to he found upon the proof of 
the facts laid before them. 
But some questions lie beyond the scope of the observation and 
experience of men in general, but are quite within the observation 
and experience of those whose peculiar pursuits and profession,, 
have brought that class of facts frequently and habitually under 
their consideration. 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 upon that subject, and certain facts are proved 
by other witnesses, a shipmaster 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 department of science, of drawing 
correct inferences from certain facts, either observed by themselves, 
or testified to by other witnesses. 
It is upon this ground that the opinions of witnesses who have 
long been conversant with insanity in its various forms, and who 
have had the care and superintendence of insane persons, are 
received as competent evidence, even though they have not had 
opportunity to examine the particular patient, and observe the 
symptoms and indications 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 con- 
sideration of a 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 witnesses, or of the truth of the facts testified to 
by them. 
The attempt to follow the motives of a frightful deed 
of violence into the recesses of the mental structure of 
the man who has committed the act, and is arraigned 
at peril of life to answer for the outrage, is one of the 
most solemn of human inquiries. It is, indeed, a momen- 
tary search, as it were, for the gift of the Omniscient 
One, who alone reads the whole heart of man. It is a 
type of that day of judgment that Christian belief 4 
assigns as the most tragic scene in all tlie history 
of man. 
No living man can entirely project himself into the 
consciousness of another. Whatsoever deals with hu- 
man conduct must walk among mysteries. Some 
anomalies in human experience will forever wear the 
shroud of uncertainty. Whoso would track the laby- 
rinth of the insane mind should have the light of ex- 
perience for his feet, and the courage of a pure and 
honest heart. 
There was a period in history, not so very remote, 
when the recognition of insanity as the result of physi- 
cal disease had not dawned upon awakening humanity 
and civilization. What has been called the “modern 
refinement” of expert testimony was unknown, and 
the arbiters of science as well as law sat upon benches 
red with innocent blood. 
There are those as we shall see, who would fain 
restore the good old days. It was but a hundred and 
twenty years ago, when Christendom witnessed the 
tortures of Robert Francois Damiens, who in a mani- 
acal paroxysm, wounded Louis XV.* The merciful law 
burned his hand, tore his fiesh with red-hot pincers, 
poured melted lead and sulphur into the wounds, and 
tore him apart with four horses, after many efforts, 
amid the jokes of the pitiful insane wretch.f 
We should not unduly censure the cruelty of an age 
in which the ignorance of the dependence of human 
conduct upon the physical condition of the brain was 
so dense and profound. Tribunals, after all, are with- 
out inspiration; they can only pronounce a judgment 
* Journal of Insanity, Vol. 111, p. 185. 
\ Fitzroy Helly, a counsellor of the English bar, lias publicly declared in 
London, that the records of the Assizes show the execution of sixty persona 
during the present century, who are conceded to have been lunatics in the 
eye of the medical science of to-day. 5 
based upon tbe general assent of tlie most intelligent 
members of society; nothing more—and when that intel- 
ligence is vivified and immensely enlarged by the 
wonderful scientific advance which the world has wit- 
nessed, falsehoods hoary with time fall away, and truth 
after truth will assert its dominion at last. 
Sir Yicary Gibbs,* Attorney General of England, 
declared, “I say this upon the authority of the first 
sages in this country, and of the established law in 
all times, which law has never been questioned, that 
although a man be incapable of conducting his own 
affairs, he may still be answerable for his criminal acts, 
if he possess a mind capable of distinguishing right 
from wrong.” 
Dr. Bell, in speaking of the case of Bellingham, 
reminds us that under this very rule, “ A man whom 
nobody now doubts to have been insane, committed his 
homicidal act on the 11th May, 1811, was tried, con- 
victed, sentenced, executed, and his body placed on the 
dissecting table on the 18th; all within one week!” 
Has America no addition to the sombre record? 
What of the condemnation of Cornell, whose sentence 
was commuted, that his insanity might convince the 
world, at Auburn; or Wilcox, also condemned and 
afterwards insane in Clinton Prison? What of the 
deaths upon the gallows, of Cook, at Schenectady; of 
Prescott, in New Hampshire; of Baker, in Kentucky; or 
of Maude, in New Jersey, a man Avho had actually been 
confined as a patient in an asylum, and escaped there- 
from ? 
It is no wonder that as medical science convinced 
mankind that insanity was the result of disease, the 
nobler minds in the legal profession should demand the 
light of medical information in the midst of issues of 
such vast importance, in the effort to define suck 
* Journal op Insanity, Vol. IV, p. 33. 6 
insanity as the law could admit, and to recognize its 
victims with the keen and trained faculties sharpened 
by constant scientific use. 
The successive dogmas adopted to limit and bound 
so intangible an effect as insanity are a twice told tale 
to the profession, but it is noticeable that until within 
a recent period, there has been an earnest and continual 
endeavor to reconcile the claims of offended justice with 
those of an enlightened humanity, step by step, as the 
light of science leads the way, approximating justice 
and equity. 
As early as thirty-three years ago, some manly and 
almost prophetic declarations were made by the presid- 
ing judge, in the case of Klein,* for murder, New York 
Court of Oyer and Terminer. His Honor said: 
That it was hy no means an easy matter to discover or define 
the line of demarkation where sanity ended and insanity began, 
and it very frequently occurred that a condition of mental aberra- 
tion shaded otf from a sound state ot mind, so gradually and imper- 
ceptibly, that it was difficult for those most “expert” in the 
disease to detect or explain its beginning, extent or duration. 
And in this, as in other diseases of the human system, there was 
an infinite variety, so great indeed, as almost to justify the remark 
that no two cases were ever precisely alike. * * * * 
The discoveries in the nature of the disease, and the improve- 
ments in the mode of its treatment, had been so great in modern 
times, that it had become almost a distinct department of medical 
science, to which some practitioners devoted themselves almost 
exclusively. The opinions of such persons, especially when to 
their knowledge they added the experience of personal care 
■of the insane, could never be safely disregarded by courts and 
juries. ******* 
What is meant by “an insane person,” is now, and long has 
been a matter of great difficulty. At one time it was held by the 
courts to be only such an overthrow of the intellect, that the 
affiicted person must “ know no more than the brutes,”f to be ex- 
* Journal of Insanity, Vol. 11, p. 263, Judge Edmonds, 
f Judge Tracy, 1733. 7 
empt from responsibility. As science progressed, the rule has 
been extended in modern times, until it begins to comprehend 
within its saving influences, most of those, who by the visitation 
of disease are deprived of the power of self-government. Yet the 
law in its slow and cautious progress still lags far behind the ad- 
vance of true knowledge. * * * * * 
If some controlling disease was in truth the acting power within 
him, which he could not resist, or if he had not a sufficient 
use of his reason to control the passions which prompted the 
act complained of, he is not responsible, but we must be sure 
not to be misled by a mere impulse of passion, an idle, frantic 
humor, or unaccountable mode of action, but inquire whether it is 
an absolute dispossession of the free and natural agency of the 
human mind. * * * * * * * 
In order then to constitute a crime, a man must have memory 
and intelligence to know that the act he is about to commit is 
wrong, to remember and understand that if he commits the act 
he will be subject to punishment, and reason and will to enable 
him to compare and choose between the supposed advantage or 
gratification to be obtained by the criminal act, and the immunity 
from punishment, which he will secure by abstaining from it. 
If, on the other hand, he have not intelligence and capacity 
enough to have a criminal intent and purpose, and if his moral or 
intellectual powers are either so deficient that he has not sufficient 
will, conscience, or controlling mental power, or if through the 
overwhelming violence of mental disease, his intellectual power is 
for the time obliterated, he is not a responsible moral agent, and is 
not punishable for criminal acts. 
In proportion as tlie public sense accepted the fact 
that insanity was to be attributed to disease, and not 
to a psychical possession aldn to the notion of witch- 
craft, that, alike from the general mind, was reflected 
also in the language of the law, in annals that are pain- 
ful to dwell upon; so did the conviction the more fully 
fasten upon the legal mind that the technical facts of 
insanity must be developed for the jury a skilled 
understanding, and it became absolutely essential to 
call in the aid of medical experts. This process is still 
going on. 8 
The following is from a review,* in the American 
Journal of Insanity, on a valuable “Report on the 
Medical Jurisprudence of Insanity,” by Prof. Coventry: 
Reforms of every kind are indeed slow in progress, not in being 
assented to in theory, bnt in being accepted and carried out. * * 
The legal relations of insanity, and the responsibility for supposed 
crime are as uncertain and unsettled as in the time of Blackstone 
or Lord Coke. This is because so comparatively little of the great 
light shed upon the subject of mental disease, and its relations to 
human responsibility during the past century, has yet penetrated 
the popular understanding, and the dogmas and precedents of the 
courts. But though slow in their progress “reforms never go 
backwards.” 
While it will be acknowledged that some progress 
has been made since that period, and in a few States of 
the Union admirable changes effected in the modes of 
administration of the criminal law, the great truth yet 
remains of the lamentable need, over the country at 
large, for yet farther revision and readjustment of modes 
of proceeding with persons pleading insanity in bar of 
punishment for offenses. In a free and intelligent land, 
statutes will be enacted as an expression of deliberate 
public opinion. How important, therefore, that public 
opinion should be impressed by those whose lives are 
given to the practical study of insanity. Unpleasant 
as some aspects of the struggle may be, the physicians 
of the insane can not do their whole duty if they per- 
mit the noisy charlatan to fill the public ear with sensa- 
tional falsehoods to please a mob athirst for something 
strange to feed upon; or even if they surrender this 
field to the theories of legal gentlemen, who, with ad- 
mirable motives, have, by their very education and 
mental habits, become unfitted for the reception of 
truths discoverable in so experimental a science as 
medicine. 
* Journal of Insanity, Vol. XV, p. 430. 9 
What the status of the expert in insanity in courts 
of law, and before that court of last resort, public 
opinion, has been, is now, and should be, though often 
discussed, may still claim our careful consideration, in- 
asmuch as its final settlement involves so much to the 
profession directly, and more to humanity at large. 
We may fairly assume, that in cases of criminal accu- 
sation, what men desire is substantial justice. The 
legal effect of an act, should, in absolute equity, depend 
upon its moral quality. But the moral quality can 
only be approximately judged, and that by our knowl- 
edge of the natural history, so to speak, of the act. 
Knowledge must necessarily be supplemented in part 
opinion. And the least possible room is left for a 
doubtful quantity, when every avenue of knowledge 
has been explored with a competent guide. 
The medical expert is in part a guide, as Dr. Rey- 
nolds has happily said, “he is one who knows what to 
look for, and why to search for it, as well as what 
to see.” 
1 need not remind you that the most enlightened 
nations of the Continent have given large powers to 
medical experts. Thus, to avoid detail, we know that 
in France a preliminary step in the trial of the alleged 
insane is to submit him to the examination of a board 
of experts; and in Germany, medical experts are called 
upon to conduct an examination, in the presence of a 
judge, and their opinion must be rendered with a 
written statement of the whole investigation. 
It is a familiar fact that the usual course of intro- 
duction of expert testimony in the courts, so far as 
insanity is concerned, is for the purpose of sustaining 
the position of counsel for the prosecution or the de- 
fense, as the case may be, with the strange anomaly of 
a witness announcing the conclusions of a most recon- 10 
dite science, and straightway being cross-examined 
concerning the same, as though to demonstrate his ig- 
norance or untruth, by a layman, presumed to be a 
stranger to the very science, of wdiich the expert is 
supposed to have special knowledge. Nor is it alto- 
gether unknown, for the judge himself, after questions 
tending to intimate the unreality of medical knowledge 
to conclude with a charge to the jury, to stand by de- 
cisions whatever the consequences. And yet there was 
a period when the scientific world was as thoroughly 
convinced as to-day, that witchcraft was a monstrous 
delusion and still stare decisis from the lips of the great 
and good Sir Matthew Hale was the death knell of at 
least two poor women for sorcery. 
We can not censure the upright judge who knew not 
his own wrong, but what can we say of a school of lat- 
ter day philosophers who look back reverently to his 
dicta upon insanity of which he was equally ignorant, 
and who would persuade civilization and humanity 
to retrace their footsteps to the darkness of the past, 
amid the spectres of the innocent condemned ? 
And yet such men live not only among the mistaken 
devotees of legal precedent, but as we shall see, men 
wTho hide the Mephistopheles behind the cloak of the 
philosopher, and diffusing a subtle moral poison even 
through the fountains of the great daily press, would 
drug a Christian people into moral insensibility and 
practical atheism. 
The early history of the services of experts in insan- 
ity before American courts, is an honorable page in the 
literature of our profession. I need ndt remind you 
of the estimate humanity must accord to the labors of 
such men as Drs. Woodward, Bell,* Brigham, and others, 
who did so much to modify the expression of judicial 
* Memoir of Dr. Bell, Journal of Insanity, Vol. XI, p. 114. 11 
opinion in regard to the proofs demanded to demon- 
strate the existence of insanity. I need not point yon 
to the subsequent history of persons accused, especially 
in the trials as fully reported, occurring in the Eastern 
States, who were remanded to Insane Hospitals for care 
and treatment upon the evidence of these experts. 
And yet with so mucli of human experience recorded 
in the annals of the law, in regard to the value of 
medical testimony, Lord Campbell, from his lofty judi- 
cial seat, could say to three learned and respected phy- 
sicians, “You may go home to your patients and be 
more usefully employed there than youhave been here.” 
This, it will be remembered, was in the Bainbridge 
Will Case. 
And it is another of the legal anomalies remaining that 
in a number of States of this Union, to the present 
day, the testimony of non-expertsf as to the mental 
condition of a prisoner is duly taken, if based upon 
personal observation. It is not matter of surprise that 
extraordinary results sometimes follow. The United 
States Courts permit the same. 
Let us note, that here at least, the rule should be 
modified, by which only the declaration of such ackowl- 
edged and notorious phenomena of insanity as are 
accepted without question, with duly corroborating cir- 
cumstances, should be received from such witnesses. 
Should not the force of such testimony be greatly 
restricted where there is appearance of doubt in the 
case, and should not its recognition by experts be de- 
manded in such instances ? 
In the comments on the case of Davenport,J for the 
murder of Wilson, Bennington, Yt., 1863, it is stated that 
f Dewitt vs. Daily and Sclioonmaker (3 Smith, 340). 
t Journal of Insanity, Vol. XX, p. 413. 12 
the Court ruled “that medical witnesses can only be 
asked what certain facts, admitted or supposed, tend to 
prove in respect to the mental condition of an accused 
party.” But as the writer well says: 
Neither substantial facts nor logical* definitions can always 
describe a case of mental disease. As the opinion of an artist 
upon the genuineness of a picture, and that of a ship-builder upon 
the sea-worthiness of a ship are lawfully taken because no scientific 
test is possible, so the judgment of an expert in mental diseases 
should be freely admitted. 
It was by slow degrees that the position of the med- 
ical expert came to be accurately apprehended, and 
development in this direction as we shall observe, is 
yet demanded by the justice that shall approach nearest 
the sublime equity of our Maker. 
The London Medical Gazette (November 28, 1851) 
relates that: 
An application was made to the Lord Chancellor, last week, for 
the payment out of a lunatic’s estate of a fee of fifty guineas to Dr. 
F. Winslow, for his examination and report on the condition of a 
lunatic. In refusing the application, the Lord Chancellor re- 
marked—that in the present instance, as was likewise almost the 
invariable practice, the medical man had reported in favor of the 
views of those parties which had employed him. 
In regard to the basis of evidence properly receiva- 
ble as such from the expert, we find in Beck’s Medical 
Jurisprudence, that the medical witness is cautioned: 
First. That his opinion must be based on the medical facts of 
the case. “It is not the province of the expert to draw inferences 
of fact from the evidence, but to give his opinion on a known or 
hypothetical state of facts.” 
Second. Physicians are not allowed to give their opinions on 
the case as submitted to the jury. 
Third. Medical men are not usually allowed to quote the 
books of authority in their profession to fortify the opinions they 
have given in the case. 13 
The principle assigned by the bar to explain this ex- 
clusion of medical literature is, that nothing is evidence 
which is not sworn to. But it has been well remarked 
that much enters into a case that is not sworn to. 
Lawyers do not scruple to refer to medical works, and 
seek to entangle the expert amid seeming contradictions 
by questions intended to develop antagonistic views on 
the part of the expert, to one or other leading au- 
thority upon insanity in regard to the nomenclature and 
the scientific appointment of language to define tire 
various grades of mental alienation. Judges themselves 
not infrequently quote medical writers from the bench 
in the charge to the jury, in opposition it may be to 
the views of the expert, while denying him the advan- 
tage of the precision of language employed by authors, 
to represent fairly his own views, to say nothing of the 
charm of the printed word and the ponderous volume 
upon the mind of the average juryman. 
In the case of the Queen vs. Frances, in London, 1849, 
Baron Alderson refused to allow a medical gentleman 
present in court, who had heard all the evidence, to 
testify to his opinion of the soundness of mind of the 
accused. He said: “The proper mode is to ask what 
are the symptoms of insanity, or to take particular facts 
and assuming them to be true, to ask whether they 
indicate insanity on the part of the prisoner.” Other- 
wise, it is really, he said, to substitute the witness for 
the jury. 
Sixteen years later we find the following opinion 
from the bench, in the charge of Judge Mellor,f in the 
-case of Regina vs. Southey for the killing of his wife 
and child, 1865. The defense being insanity, and many 
facts having been sworn to, the Judge charged: 
f Journal of Insanity, Vol. XXIII, p. 894. 14 
That every man was presumed to be sane until the 
contrary was shown, that the jury must not give them- 
selves up to the medical testimony, but must exercise 
their common sense and judgment upon it. Some medi- 
cal men had theories upon insanity, which if applied 
generally, would be fatal to society. The opinion of 
persons who had observed a man for months, was worth 
far more than that of those who went to see him once, 
for the very purpose of giving evidence that he was 
insane. It was not enough that some amount of in- 
sanity was shown. It must appear that the prisoner 
did not know that he was doing wrong. 
The natural conclusion perhaps followed this charge. 
The Judge succeeded as an advocate, and the accused 
was sentenced to death. 
So also, as the writer to whom we have just referred 
reports, in Regina vs. Leigh, before Chief Justice Erie 
for the murder of Harriet Harton, February, 1866, the 
Judge charged: 
The question was, whether he was or was not responsible when 
he committed the act—not whether he was not guilty, on the 
ground of insanity, that was an issue far too vague. * * 
The law, however, did not say that when any degree of insanity 
existed, the party was not responsible, but that when he was in a 
state of mind to know the distinction between right and wrong, 
and the nature of the act he committed, he was responsible. 
lii striking contrast to these expressions, hear the 
voice of the lamented Griesinger, speaking of what some 
call partial insanity, “At what limits must it be said 
that a man is blind ? Is it only when he can no longer 
perceive a ray of light ? ” 
The unfortunate disposition to regard medical men 
as governed by false sentiment, or imaginative fancies,, 
at war with the best interests of society, may often be 
observed. So far has this feeling been manifested as to 15 
lead to the most fallacious reasoning, to the discredit of 
the bench. Thus, before the Judicial Society, we find 
Baron Bramwell declaring (December, 1857) that: 
The question to he discussed was not the relative amount of 
pity which we should feel for the sane or the insane, but how is 
the law to deal with the commission of an act which it prohibits ? 
To solve this question, it is necessary to go back to the true theory 
of punishment, which is, that pain being in itself an evil, society 
has no right to inflict it upon an individual, except for the purpose 
of preventing crime, by thq fear of it on the individual punished, 
and by the spectacle of it on the rest of the community. The cer- 
tainty, therefore, with which punishment follows crime is of the 
last importance in teaching men to respect the law, and to abstain 
from breaking it ; for since the law threatens all mankind, it would 
be a mere hrutum fidmen, if it did not also punish those who vio- 
late it. The madman, amongst others, is threatened by the law; 
why then should he escape if he infringes the law; and why de- 
stroy that certainty of punishment following crime which is the 
very essence of its preventive power? For his part, he could con- 
ceive an argument being maintained to show that even idiots 
should be punished when they break the law; but in such an opin- 
ion, if held by any one, he did not share. If you do not punish 
the madman, you hold out a premium to the commission of crime; 
for every man would calculate that he would be fortunate enough 
to escape by some one proving that he was mad, on the same 
principle as that on which people lead a forlorn hope, or put into a 
lottery, not calculating the chances against them, but trusting that 
they will be the fortunate ones to survive, or to win the prize. 
Of such tenets held by the learned Judge, it was 
well remarked: 
That the legal profession generally, and especially the judges, 
have so little practical acquaintance with insanity, that their minds 
are absolutely unable to comprehend vast truths which are familiar 
enough to medical men. Examinations in courts of justice are 
peculiarly unfavorable to the diffusion of just ideas on these mat- 
ters, and the medical witness consequently gives his testimony 
amidst an amount of prejudice, arising from ignorance, which is 
too often fatal to the best interests of humanity and justice. 
The natural responsibility of the position of a medi- 
cal expert, is heightened by the imperfect systems ex- 16 
isting, whereby the physician is often hurriedly called to 
give an opinion based upon miscellaneous facts, gath- 
ered by laymen, with slight opportunity for observa- 
tion of the accused, with the forlorn hope that he may 
confirm or refute a plea, offered at the last moment, or 
during the very progress of the trial, for the first time. 
Surely this procedure is unworthy of that degree of 
civilization which our country has reached. If, as we 
know, one or two States have sought out a better way, 
it is time that the efforts of physicians, who have the 
especial charge of the insane, should arouse public 
sentiment to the urgent need of progress throughout our 
entire country. 
It has been well said by Dr. Chipley,* in speaking of 
the medical witness: 
It is an embarrassing position, not willingly assumed by intelli- 
gent medical men. In fact, it is a matter of notoriety that phy- 
sicians avoid a summons in such cases by every means in their 
power; when they would not shrink from the discharge of their 
duty, if allowed an opportunity to analyze the case as they are 
daily doing in regard to other diseases. 
They are required to pronounce an opinion which may involve 
the life of the prisoner on the one hand, or interfere with the just 
administration of the law on the other, on data, which in ordinary 
practice, would not authorize a diagnosis in any case of disease, or 
justify the administration of the simplest remedies. 
But whatever may be the difficulties that surround 
us, it is unhesitatingly our duty to apply such powers 
as we possess to the solution of the question presented. 
We dare not turn our backs to this appeal, because the 
dearest interests of the insane are involved on the one 
hand, and the sacred bulwarks that encircle society lie 
exposed to outrage on the other. How shall we gird 
our loins for the task? 
*Journal of Insanity, Vol. XVII, p. 303. 17 
First, since, when the true mental attitude of the ex- 
pert is understood, he will he really recognized as upon 
the one issue, a virtual judge, we should cultivate a 
calm and impartial frame of mind, in addressing our- 
selves to the inquiry before us. This is a duty, the im- 
portance and solemnity of which it is impossible to 
exaggerate. The expert should follow neither in the 
train of the prosecution or the defense. Too long has 
science, bearing the rich fruits of experience and skill, 
been dragged as a slavish trophy behind the con- 
queror’s chariot in the legal struggle. 
We should demand the enactment of statutes remand- 
ing to a commission of experts the examination of the 
accused, that the plea of lunacy may be disposed of, 
when presented, before issue is joined or trial begun. 
Compensation for this service should be made by the 
State only. And it may well be claimed that the obser- 
vation of the commission should extend through such a 
period of residence in an insane hospital, as will supply 
ample data for exact conclusions. To this might be 
wisely added, the visits and observations of a physi- 
cian especially sent by the defense to co-operate with 
the commission. 
But while we are waiting to secure the passage of 
laws retaining the valuable features of the statutes of 
New York or of Maine, the medical expert can at least 
frankly assure the counsel, in the case of hurried con- 
sultations, that he must testify from a knowledge of all 
the facts attainable, and that if important facts are 
developed, previously withheld from him, that his 
views must be readjusted to the whole truth. Indeed, 
we should labor to place the expert in the position of 
amicus cur ice. 
I need not remind you with what care we should 
seek the history of the accused, what has been his 18 
parentage, education, and physical habits, whether 
there has been recognized any great physical or moral 
change in the man; and if so, whether sudden or 
gradual, what is his organic condition, and whether 
trophic degeneration of any character is discoverable, 
whether hereditary influences indicate hysteria, chorea, 
epilepsy, syphilitic diathesis, or other profound disturb- 
ance of the nerve centers; what inconsistencies of 
opinion are in sharp contrast with his usual course of 
belief, whether there is inordinate grandeur attributed 
to his personal abilities or interests, whether the bodily 
functions are performed with regularity, and he en- 
joys natural sleep, and whether there is that due accord 
of mental and physical manifestations which long 
experience has shown to be in appropriate relation to 
each other in the several forms by which insanity has 
been recognized, and by which there have been efforts 
at its classification. We are to avoid the substitution 
of names for realities. “Test every case by its symp- 
toms,” is the very axiom to be dwelt upon by the medi- 
cal mind. This is abhorrent to the legal profession who 
can not understand the belief of the physician, that 
within certain limits every case is a law unto itself. 
One of the primary demands, therefore, on the wit- 
ness-stand, is a classification from the expert, of the 
forms of insanity, and nosological distinctions once 
obtained, the forensic struggle is made to show that 
the expert has failed when drawing his lines, “ to divide 
a hair twixt south and south-west side,” or to triumph- 
antly show that the accused may not belong to the 
special division, in which with some reservations, the 
expert may have unwarily assigned him. 
It would not be profitable here to enter into the 
long standing questions concerning the forms of insanity, 
nor can it be conceived that it is the special province 19 
of the expert to enter into such dissertations before a 
jury, any more, than if a surgeon were asked concern- 
ing the existence of disease of the heart of a certain 
character or of locomotor ataxy, it would be proper to 
enter into obscure theories of causation. It is enough, 
that he can affirm the existence of a prolonged depart- 
ure from ordinary human conduct, whether it appear 
to his mind to be primarily due to intellectual aberra- 
tion, or to the deprivation of natural affections and 
emotions, or to inability to use the will in accordance 
with the dictates of the intellect and the control of the 
moral sentiments, or to impairment of the mutual coun- 
ter-play of all these powers of the mind. 
Is it not true that we are to fix our minds upon 
results, to look narrowly for physical symptoms of 
physical changes, whether those changes proceed from 
what may be commonly termed moral causes, or other- 
wise? The existence of the insane condition is the fact 
in question, and not what authors, or physicians, or 
lawyers, may have fancied to constitute ideal insanity, 
but the insanity of the individual under investigation 
—that exceptional condition which marks him as an 
unfit person upon whom to inflict the penalties designed 
for actions involving the conscious and willful violation 
of the rights of others. 
Whether, indeed, we may believe with Dr. Gray and 
many other distinguished alienists, that no case of 
moral imbecility exists without some deprivation of 
intellect and reason, whether immediately observable 
or not; whether we are ready to accept the conclu- 
sion of our honored President, Dr. Nichols, whose 
eminent services to the insane were rendered for a 
quarter of a century in this Capital of our country, 
when he says: “It is evident to my mind that cases of 
insanity have run on for years, under the observation 20 
of competent men, without the discovery of any intel- 
lectual lesion whatever;” whether we may agree with 
the late lamented Dr. Landor, in more extensive views, 
when he says: 
Daily experience shows abundantly that a man or woman may 
be imbecile morally, from cerebral disorder or disease, and yet 
have great intellectual or even high logical powers. There are 
many who being thus diseased mentally, drink to drunkenness, are 
lascivious, lie, steal, are obscene, homicidal and malicious, in spite 
of a knowledge of right and wrong, and even with reasoning 
powers little or at all affected, and whatever the law may decide, 
the inexorable logic of facts will hold its own: ” 
Or whether again we accept the views of Dr. Walker, 
who declares that, “when the will is overborne, the 
intellect is disturbed. You may call it ‘impairment,’ 
‘ disturbance,’ ‘ excitement,’ or what not, when the 
will is gone, the individual is gonewe say, that 
whether our belief coincides with any of these, is, after 
all, not of such transcendent importance in a practical 
point of view, not at least to the extent that such 
divergences of belief are pictured in the psychology of 
the gentlemen of the bar. 
It will surely be conceded that the typical examples 
alleged, of emotional insanity, leave at least a strong 
suspicion of latent weakness in primary or purely in- 
tellectual cerebration, often confirmed by the later 
history of absolute delusion with mania and resultant 
dementia. On the contrary, it will hardly be disputed, 
that in general paresis there may be a prolonged early 
stage, in which, while the emotions and feelings that 
elevate man above the brute, seem palsied and de- 
stroyed; yet bodily vigor is great and the reason 
apparently acute. And still again, it may not be easy 
to show, a priori, that the mental dynamic force which 
we denominate the will, may not be irresistibly set in 21 
action by the consentaneous work of passions, with or 
without tbe cognition of the dictates of reason. 
So that to wander at all into psychology is, for the 
expert, an abandonment of the safe middle-ground, 
from which he pronounces an individual sane or insane, 
from the judgment derived by his experience, from 
physical indications, and well ascertained history, and 
yet again from a recognition, which long familiarity 
with the insane may give, but which can no more be 
formulated in identifying dicta, for cross-examination, 
than we can explain the recognition of an animal or 
any article of daily use among many similar thereto, 
without a possibility of defining that which makes it 
different to us, by accurate description. 
Prof. Meyer,* of Gottingen, has well said, in connec- 
tion with the identification of insanity, that: 
To judge this affection, the physician is satisfied with a series of 
symptoms, which his experience has taught him to consider char- 
acteristic of insanity, in their mutual relation, in their connection, 
without his being able to give a sharp definition of the number 
and meaning of symptoms. 
The law takes insanity, or the irresponsibility dependent upon it, 
as being proved only when the result or the manner of thinking is 
entirely abnormal; when lively illusions are indicated, and the 
condition is one of complete confusion. The accused therefore 
will suffer the penalty of the law, if his thoughts do not differ 
from the common run, if he talks with tolerable coherence, if he 
knows his way of action to be criminal and deserving of punish- 
ment. Yet it is a fact to be proved, even by laymen, that many 
of the inmates of our asylums, when subjected to the same ordeal,, 
would be perfectly responsible persons within the meaning of the 
law. 
He points out with clearness, that often in tbe first 
onset of mania, the intellect still powerful, struggles 
with the morbid influence, and thus the mental conflict 
ensues, which to the wrorld seems the height of madness, 
* Journal of Insanity, Yol. XXVII, p. 419. 22 
but in its onward progress, and with the intellect 
breaking down in anticipation of approaching dementia, 
and under such remedies as may serve to calm physical 
agitation, an appearance of coherence is again restored, 
and there is a simulation of action of a truly intellect- 
ual character. But this, he affirms is unreal the fact 
is that these actions are more or less automatic of pre- 
vious manifestations, and are not the outgrowth of 
original thought or of determination guided by a will 
influenced normally by the intellect. There is no 
power of originating. He says: 
The whole doctrine of morals and ethics, the tenets of the 
Christian catechism may be found with the insane in their accus- 
tomed connection, like the stamp of an ancient coinage, but theii 
ideas are not the product of thinking; their actions not the effect 
of free will; they are mixed at times with delusions, but repro- 
ductions from their former mental lives. 
Whether we assent entirely to these propositions, 
they contain matter of reflection. 
If we may be pardoned for digression to a subject 
too vast for consideration in a paper like this, may we 
not fairly suggest in leaving this topic, that less stress 
upon names and divisions, less warmth of adherence to 
favorite authorities, and a more thoroughly catholic 
disposition of mind, and courteous acceptance of non- 
essentials, by medical experts, who may equally recog- 
nize the presence of insanity, but by different lines of 
belief, may tend to good, by its impression upon the 
bar, the bench and public opinion; that, after all, the 
facts are too solemn, and demand too much sincerity 
and earnestness of mind, to allow room for speculations 
upon the particular channel by which they occur. 
Yet the medical expert can not be guiltless if he fail 
to acquaint himself with the revelations of the most ad- 
vanced thinkers and laborers of the profession. Would 23 
any toxicologist of tlie present day be justified in ap- 
pealing to the rude tests of a hundred, nay, of fifty 
years ago, in regard to the detection of poisons ? Have 
we not seen what will come of such mistakes? Chemi- 
cal science grows and its growth is formally accepted 
and acted upon by the courts. Why not medical 
science too, and that most exquisite branch which 
weighs in imponderable scales the capacity of a fellow 
creature to fulfill the demands ot society. 
One of the singular anomalies of criminal procedure, 
is the denial of the right of the expert to express an 
opinion in the hearing of the jury upon the facts as 
proved before the court. But the counsel upon either 
side may frame hypothetical questions, containing as 
many half-truths as possible, only with phases reversed, 
omitting what they please, and perhaps, joining infer- 
ence and implication to actual evidence, and may 
demand a categorical answer, which may require Yes 
and No to be said of the same individual, with a cross- 
examination to follow, the whole to be concluded by 
an appeal to the jury to perform the mental acrobatic 
feat with safety, of resting their conclusions upon 
whatever tfiey may gather from each side that bears 
the semblance of certainty. 
It is to be regarded as fortunate that there is now a 
disposition on the part of some judges to permit the 
expert to declare his opinion, from the entire burden ot 
the testimony. It is at least an advance, when facts 
and not fiction form the basis of opinion. 
It must be remembered that the opinion of an expert 
who is truly such, is more than a dictum—it approaches 
the dignity of a judgment, so far as the particular plea 
of insanity is concerned. True, there should be great 
caution that the witness is truly qualified. That he be 
a physician is not enough, for not all physicians are experts in every branch of medicine. That be has bad 
opportunities for observing insanity is not sufficient, for 
sucb opportunities may not bave been improved. In 
Page vs. Parler, N. H. Reports, 59,* tbe Court well said 
that it must be shown “ at least that they bave superior 
actual skill or scientific knowledge, in relation to tbe 
question, before their opinions can be competent.” 
But when fairly acknowledged and respected as an 
expert in insanity, what, after all, is tbe opinion of the 
alienist, so objected to? It is a declaration of what be 
esteems a central fact, appealing to bis consciousness for 
an existence, because of tbe union of analogies from 
many minor facts. These can be taken as a whole, and 
weighed at once by tbe educated mental grasp of the 
expert, but can not be apprehended by a mind unfitted 
to gather and associate tbe many elements of one truth. 
What is tbe universally accepted fact of tbe law of 
gravity but an expression of acquiescence in tbe scien- 
tific opinion of Newton, that only in that manner could 
tbe many motions of natural objects be susceptible of 
explanation ? 
A shipbuilder may declare that a bolt of a certain 
size is weak, that a beam of a certain character is 
unsound, that construction upon sucb and sucb lines is 
faulty, but it is from bis knowledge intimate and accu- 
rate of tbe bearing of all sucb facts, taken together to 
constitute another and tbe central one, that be boldly 
affirms tbe uuseawortbiness of a vessel. 
If it be asserted that another builder is of a different 
opinion, it becomes a question of tbe weight of their 
several testimonies, and preponderating experience must 
govern; but surely, not the crude views of a jury, 
composed perhaps of men, who may have no knowledge 
whatever concerning tbe architecture of a ship. 
* Quoted in Journal of Nervous and Mental Diseases, July, 1877, p. 478. 25 
But if we have justly portrayed the strength and the 
profound moral dignity accompanying the careful 
declaration of an expert, after cautious investigation, 
where human life and high honorable repute hang 
in the balance, what language can characterize the 
rash intruder who plays with such fearful issues with- 
out knowledge, or the trafficker in human misery who 
sells his opinions for gold? 
In olden time only the vestals robed in perpetual 
purity could keep alive the sacred fires, and profanation 
of their vows was punished by burial alive. What 
burial of public contempt could be too deep for the 
man who should prostitute science in the market, and 
smother her pure light under his greed for pelf. Such 
a man would be the Benedict Arnold of his profession 
—such a man, we say it reverently, would be a Judas 
Iscariot to humanity, selling the blood of her children 
for thirty pieces of silver. 
Is it true that the former honorable record of testi- 
mony has been recently darkened by the conduct of men 
more wicked than the victims whom they judged, bring- 
ing unmerited disgrace upon real alienists, and hold- 
ing up the just claims of medical skill to the scorn of 
mankind? Difficult as it is to credit such depth of 
ignominy, we are told by the Managers of the New 
York State Lunatic Asylum, in a report not many 
years ago: 
It may not be amiss to observe that this matter of the testimony 
of experts, especially in cases of alleged insanity, has gone to such 
an extravagance that it has really become of late years a profitable 
profession to be an expert witness, at the command of any party, 
and ready for any party, for a sufiicient and often an exorbitant 
fee; thus destroying the real value of the testimony of unbiased 
experts. Vaunted and venal expertness is usually worthless 
evidence; and yet such testimony is getting to be in great 
demand. 26 
We denominate liim a criminal who counterfeits the 
coin of his country, or who adulterates the food of the 
people. What shall be said of the poisoner of the 
fountains of justice ? The world hangs upon eloquent 
lips like those of a Curran or a Grattan that denounce 
the baseness of an informer who testifies against the 
guilty comrade to save his own unworthy life. But 
what language can fitly fasten that man in the pillory 
of universal execration, who has bartered innocent 
blood over which the law gave him fearful power, at 
the bidding of jealous envies, and the lust of gold? 
Such a man, if he exist, must have denied his God in 
impious atheism, else there were no refuge from remorse 
save in madness, that dread sanctuary which he has 
denied his wretched victims! 
The case of David Montgomery* who killed his wife, 
while suffering from epileptic mania, is alas, yet fresh 
in your minds, and the admirable review of the expert 
testimony by Dr. Echeverria, than whom no man stands 
higher as an authority upon epilepsy in this country. 
On that trial a physician called to enlighten and 
instruct as an expert, asserted that, “it by no means 
follows that an individual suffering from epilepsy is not 
as fully responsible for his actions as healthy persons.” 
And again on being questioned he declared “that not 
many cases of epilepsy are accompanied with insanity 
or obvious mental deterioration.” Yet again he an- 
swers that, “ according to his experience, fifty per 
cent develop mental deterioration.” Little importance, 
he said, should be attached to the views of asylum 
physicians, on the subject of the responsibility of epilep- 
tics, because the epileptics in lunatic asylums are at 
the same time insane. 
He makes the surprising assertion that insanity with 
epilepsy, is a very different thing from the insanity 
* Journal of Insanity, VoI. XXIX, p. 347. which results from epilepsy. Whereas every one 
knows that epilepsy precedes the insanity, it being 
rarely noted, if ever, that epilepsy is devel- 
oped after or from the insanity. 
This very person gave the evidence upon which Rey- 
nolds was executed, although the poor wretch had an 
epileptic paroxysm on the day of the homicide. Too 
late was the world horrified at the direct physical evi- 
dence of brain degeneration in this cruel case. Yet the 
supposed expert has handed the helpless accused over 
to the hangman, at the demand of the populace thirst- 
ing for blood. 
To stamp with additional infamy, the whole transac- 
tion, there was another so-called expert,* who agreed 
and consented unto the death of Reynolds upon the 
gallows as a guilty man, yet who, on being asked when 
McFarland was tried for the killing of Richardson, to 
describe a case in which insanity could exist without 
delusion, replied to the district attorney: “ Take the 
ease of Reynolds.-)* There was no delusion there; the 
man acted as a mere machine having no consciousness 
of his act, and when he comes to himself he has no 
recollection of what he may have done.” Why did not 
the recollection that he had declared the insane epilep- 
tic a free agent and delivered him to the hangman, rise 
within his soul, and drive him from the court-room 
with shame? But no, alike with his partner in such 
science, they are now there at the command of the 
opposite side, and have changed their views of insanity. 
But to return to the man who has done so much to 
debauch the course of justice, the records of the court 
in the case of Montgomery show contradictions most 
violent in answering the prosecution, and again the 
cross-examination by the defense—separated by a sin- 
* Dr. Vance. f Journal of Insanity, VoI. XXIV, p. 374. 28 
gle night and an interview with the interested counsel. 
He delivered the following dicta, as expressions of 
scientific truth, the falsity of which has been shown by 
Echeverria, beyond possibility of contradiction. 
That patients committing acts of violence during epileptic 
mania, have apparently no motive unless it is a false one. 
That he has never known a case of an epileptic fit or seizure, 
where during the continuation of it, the party will be spoken to, 
will answer, and then relapse into the same condition, and being 
spoken to again, will answer and relapse again. 
That deliberation takes away the idea of an insane act. 
In temporary insanity from cerebral disturbance there is no dis- 
position to resist the impulse, the person yields to it and strikes. 
When an epileptic has suffered from an attack, the mental dis- 
turbance continues frequently several days. 
This medley of contradictions prevailed to convict 
Montgomery. Although evidence was abundantly ex- 
hibited that Montgomery had paroxysms of epilepsy 
throughout the week before the homicide, and accord- 
ing to this expert himself, his delusions were the result 
of epilepsy, yet the opinion declared was, “ the circum- 
stances of the affair are irreconcilable with the theory 
that the homicide was perpetrated during a paroxysm 
or an accession of epileptic mania,” 
“Deliberation takes away the idea of an insane act.” 
This silly and ignorant pomposity, which any alienist 
would receive with a quiet smile of contempt, was a 
declaration sealing Montgomery’s conviction—for had 
he not confessed that he stood five minutes over his 
sleeping wife before he struck her, and,then stooped to 
kiss her. 
What then shall be said, when this very expert, with 
heart of iron and forehead of brass, affirmed when 
testifying for the defense in the McFarland trial, and 
on the cross-examination, by the district attorney, 
that “the insane are very persistent in their revenge. 29 
I have known insane men occupied with the idea of 
killing their keeper for years, and finally do it.” It 
will he remembered that the point of the application 
of this view, was that two witnesses had testified that 
McFarland had waited ten minutes in the Tribune 
office, behind the partition, looking for Richardson to 
appear, upon which he fired. 
The distinguished author from whom we have quoted, 
well says; 
If such assertions are to prevail, if insanity, whether it he of an 
epileptic, or any other nature, must preclude every attempt at de- 
sign or premeditation, we may as well reject every other principle 
equally confirmed by every day’s observation of the insane, and 
by the numerous examples cited in the annals of insanity and 
medical jurisprudence in this country and abroad. 
Again, in order to couvict Montgomery, this false ex- 
pert declares, “ when an epileptic has suffered from an 
attack, the mental disturbance continues, frequently 
several days.” 
But that Reynolds might not escape, he had affirmed 
on that trial the opposite opinion. “The disease (epi- 
leptic mania) is of remarkably short duration. There 
is not a case on record where it has lasted fifteen min- 
utes.” So that on the strength of one opinion the 
latter was actually executed, and upon its opposite, the 
former was condemned, but by the merciful interposition 
of the governor his life was spared. I need not remind 
you that he was placed in an asylum for the insane, and 
his life has demonstrated the correctness of such com- 
petent alienists as Drs. Gray, Cleveland, Ordronaux 
and others, when they pronounced him insane. 
It must be that a man so lost to conscience and honor, 
as to inflict almost irreparable damage upon the science 
of medical observation, must have speedily fallen into 
obscurity—powerless for farther evil. On the contrary, 30 
he publishes hooks, which are accepted in the medical 
world by a large and admiring clientage; books in 
which he walks among cases of rare affections as numer- 
ous as the soldiery of an army, and yet diagnoses with 
unerring certainty as with the magical wand of a 
Heller or a Wyman. He is the honored member of 
numerous medical societies, the Magnus Appollo of 
such as the Neurological Society of the metropolis of 
this country, and a Professor of Diseases of the Mind, 
in a most respectable university. He has the great 
dailies of the country under his command, and has 
waxed great, until he now appears as the philosopher 
who is to inaugurate social improvements, the medico- 
legal jurist, who will readjust criminal law, and relegate 
insanity from the list of misfortunes to appear in the 
catalogue of crimes. The alienists who are superin- 
tendents of the insane standing in the way of this 
giant, to whom Christianity itself, with all the pestilent 
theories of humanity is but a myth, are to be reformed 
out of existence, and the institutions administered 
under the new lights of such modern philosophy. 
What indeed are the restraints upon moral action, 
which to other men are sacred, to him who declares 
that, “ whenever there is grey nervous tissue in action, 
there is mind also,” and that, “ of the mental faculties, 
perception and volition are seated in the spinal cord as 
as in the cerebral ganglia;”* who asserts that 
there are two forces resulting from vitality—mind and 
animal electricity—who affirms that the brain secretes 
mind as the liver does bile.f 
Dr. Parsons has happily replied that the whole ques- 
tion turns upon what is mind. True, indeed, if the 
*“ The Brain not the Sole Organ of the Mind.” Hammond in Journal of 
Mental, Diseases, January, ’7G, p. 10. 
f Spiritualism and Allied Cases, &c., of Nervous Derangement, Hammond. 31 
motions of a decapitated frog prove the existence of 
mind in his backbone, why not allow its possession to 
all animated nature, to the amoeba that feeds itself, to 
the endosmotic action in the life of plants? Why stop 
with the grey matter only, in man? Why draw lines 
between mind and matter at all? 
How shallow is such latter day philosophy after all, 
when confronted with the facts of consciousness and 
the great phenomena of the world’s history. 
Strange that a man who contemptuously rejects the 
fact of any miraculous occurrence in the history of 
religion, and to whom, therefore, the Scriptures are a 
fable; who says that “science is truth,” “religion” but 
faith in the truth, and, therefore, beneath the eternal 
verity of science, and who arrogantly denominates the 
belief which would give to the mind an existence inde- 
pendent of the nervous system, a “ mere metaphysical 
and theological dogma;” strange, we say, that of all 
men, he has the presumption to teach reforms in the 
reconstruction of the criminal law, to secure safety 
to the morals of society, which his own doctrines 
would reduce to theological dreams. For if mind and 
bile are congeners, and man’s spirituality is a fiction, 
what is morality after all ? 
Yet this man has a code, so rigid, that scarcely 
may it be said that he would suffer a maniac to live. 
In his “ Insanity in its Relation to Crime,” he com- 
pares the insane man who has committed homicide to 
the wild beast, and the mad dog. The idea of justice 
in human law, is utterly ignored. He says: “What 
society requires is protection, and it has no more busi- 
ness as such with abstract justice, than it has with any 
other bit of philosophy.” 
The safety of society is the only thing, he argues, to 
be considered in the formation of the law, or in the 32 
punishment of the offender. He demands the punish- 
ment of the insane homicide, and cites as parallel cases 
the operation of the law of attainder, and the penalties 
inflicted for ignorant violation of law, seemingly un- 
aware that the first is regarded as a hateful relic of the 
dark ages now obsolete, and the ignorant man might 
have informed himself, but that the insane is bound in 
pathological fetters, and is the helpless prisoner of 
misfortune. Such is his language: 
Looking at the matter therefore, from a similar point of view, 
no valid argument can he adduced against the punishment of the 
insane, even though they he morally irresponsible for their acts, 
hy reason of delirium, dementia, morbid impulse, emotional in- 
sanity, or any other form of mental aberration.” 
To such wild assumptions, may we answer in the 
clear, cold, but just and logical expression of Balfour 
Browne, of the English bar: 
The doctrine of all true educational or reformatory punishment 
is to punish as long as the individual and class to which he belongs, 
and on whom the example will operate most powerfully as a 
deterrant, have capacity sufficient directly to concatenate the 
suffering with the offense, and to understand how they may avoid 
the commission of a like crime. Any infliction of punishment 
under circumstances other than those just alluded to, is not only 
inefficacious, but tends to diminish the aggregate happiness of 
mankind, and is to that extent a breach of the trust reposed in the 
government of the country. 
But the pretended expert and philosopher says: 
The individual who has sufficient intelligence to know that 
pointing a loaded pistol at a human being, cocking it and pulling 
the trigger, are acts which will cause the death of the person, 
against whom they are directed, should be subjected to the same 
punishment for a homicide as would be awarded for a like offense 
committed by a sane person. 
Indeed! Does be think so as a philosopher pure 
and simple, so that like justice it is too abstract to be 33 
applied to the law, or does he think so, practically as 
an expert ? Then what motive could have annihilated 
such opinion and even stimulated his zeal to bring 
opthalmoscopes and dynamographs like Chinese artil- 
lery to bear upon the jury that McFarland might be set 
free, even though he could “cock a pistol,” and what 
inducement could have made him alike forswear his 
cherished opinion, to break the bonds of Grenl. Cole, 
although he too, “ could pull a trigger,” both “ with a 
full knowledge of the consequences of the act.” 
It may be that an apology is due to my brethren for 
asking their consideration of a Bombastes Furioso of 
false experts. But in truth, he is the type of a reckless 
class of men who are attempting to control the medical 
and even the secular press of the country, and to poison 
the public mind until they shall have worked upon pop- 
ular ignorance and passion, as they hope, to the destruc- 
tion of the present system of providing for the insane in 
the United States. As individuals they are insignifi- 
cant, but wild and unreasoning waves of feeling some- 
times arise in this country, and sweep with the velocity 
of our own prairie fires. How have we seen juries first 
acquitting, then convicting all supposed criminals under 
such daily goadings from the press. In fact, the nat- 
ural conservatism of widely differing and separated 
masses of men throughout a great territory like ours, as 
an important factor in the social problem, has almost 
disappeared under the rapid spread of consentaneous 
sentiment, by modern modes of publication, aided by 
the telegraph. 
These modern Spartans who would sacrifice the 
weaker members of society, and consign the insane to 
the fate of the wild beasts, just as the deformed child 
was flung from Laconian cliffs, are not without the cun- 
ning so admired as a virtue by their ancient prototypes. 34 
First would they destroy, in order to rebuild. If such 
delusions can be made to possess medical men, in the 
center of intelligence and refinement, what may not a 
Titus Oates accomplish as he fills the credulous ear of 
the mob with his imaginations and inventions ? 
Has he not entered the Capital, whence he was once 
driven with the brand of ignominy after having occu- 
pied the highest medical seat of honor in the gift of the 
country, but occupied, as his superior declared, only to 
listen to base music rather than the groans and dying 
plaints of his thousands of countrymen in the agonies of 
mortal strife ? Has he not cajoled even Congress to strive 
to wipe away that stain, when a new generation has for- 
gotten the wrongs of the old? Does not this great 
moral reformer, without a belief in a Divine Master 
and a system of Christian morals, this judge of men’s 
actions, to whom their conduct after all has no more of 
guiding spiritual motive, than the contortions of a frog, 
hold a magic ring, whereby the great magician of the 
New York Herald becomes his obedient henchman? 
Not the least extraordinary indeed of the powers of 
this Cardiff Giant is his ability to hoax a great metro- 
politan educative power like the Herald. What sub- 
limity of audacity to dictate an editorial like that of 
the 23d March last: 
Thus within a short period a measure of personal restraint has 
been introduced which equals in horror anything used in asylums 
before Pinel and Conolly undertook their reformation, and in 
which a wild beast could not be humanely confined. This is a crib, 
made after the pattern of a child’s crib, but with a barred lid to it. 
We have farther a harrowing description of this newly 
invented engine of torture, with a declaration that re- 
straint is not allowed in Great Britain at all, and that 
there the asylum superintendent who should put one of 
his patients into a crib would his position in twenty- 35 
four hours, if he did not incur more severe punishment, 
and closing with the exclamation: 
Let the asylums be investigated. If they are in good condition 
and well managed, so much the better for those who control them. 
If they are as bad as they are said to be, the sooner the public 
knowsjthe fact, the sooner the proper remedy can be applied. 
Will it be believed that so complete has been this 
hoax upon the Herald, that it is seemingly unaware 
that the crib-bed or protection-bed was really intro- 
duced thirty-three years ago by the humane Aubanel of 
Marseilles, and that at this day its great value in cer- 
tain cases is recognized by its use, even in the most 
extreme non-restraint asylums in Scotland ! How does 
it happen that the Cagliostro of to-day, even with 
his wondrous armory of drugs and stage properties, 
has so lulled the hundred eyes of the metropolitan 
Argus to unconscious slumber? 
But there is a side of this question of the existence of 
false experts, who impose upon the courts and the 
public mind, their presumption for learning, and their 
ignorance for discovery, which is too solemn for ridicule, 
too momentous for trifling or jest. It is not that as we 
remember the victims already buried, that we see 
Draco reappear, with swift condemnation upon his lips, 
it is not that the scales of justice drip with blood from 
hands already dyed in gore, but that behind the black 
robe of the semi-judicial expert, may be heard a sound, 
more fearful than the groans of suffering humanity, 
more ominous than the click of loaded arms, a sound 
that chills the marrow as with the breathing of a 
fabled vampire, it is the clink of money under the gir- 
dle. Now at last we shudder as we recognize that the 
false expert is no man at all, but a moral monster, 
whose baleful eyes glare with delusive light; whose 
bowels are but bags of gold, to feed which, spider-like, 
he casts his loathsome arms about a helpless prey. 36 
It can scarcely be needful to say, that the more in- 
vestigation, and the more information for the people, 
the better will be the final result to the institutions for 
the insane. Let there be light freely radiated. Dr. 
Kirkbride has well urged that the study of insanity by 
physicians be encouraged, and its more thorough expo- 
sition in our medical colleges. But it is at least absurd 
that a captain who has sailed his vessel over many 
stormy seas, should know less of navigation than the 
junk-dealer who cuts up the hulk in port. It is not 
outside the ranks of those who have given their lives 
to the practical care and cure of insane men, that 
science will find her guides, and the law, that does not 
exclude equity from justice, her most honest and faith- 
ful co-laborer. 
The declaration of the committee of able men,* ap- 
pointed by the legislature of Massachusetts to examine 
into the condition of the insane, in 1863, is only veri- 
fied by length of experience: 
The interior management of hospitals, and the treatment of the 
insane can not be regulated by law. It would be as absurd and 
futile to attempt by statute, to regulate and control the minute 
and subtle details of mental hygiene and therapeutics in our hos- 
pitals, as it would be to legislate how physicians should treat 
fever, or how or when a surgeon should amputate in a case of 
gangrene; or even to place on the statute book laws, with penalties, 
for guiding the practice of a shipmaster when in peril of shipwreck, 
with hundreds of alarmed passengers dependent for safety on his 
free will, cool head, and skillful hand. The entire management 
and treatment of the insane must be confided to the humanity and 
skill of the superintendent. 
The profession of medicine can not prostrate itself to 
the procrustean bed of ancient legal prejudice, and as 
fast as truth is developed and acknowledged, so should 
the people be taught, until the statutes shall reflect the 
humanity and justice alike of a Christian nation. 
* Journal of Insanity, Vol. XXI, p. 368. THE 
AMERICAN JOURNAL OF INSANITY. 
The American Journal of Insanity is published quarterly, at the 
State Lunatic Asylum, Utica, N, Y. The first number of each volume 
is issued in July. 
Editor, 
JOHN P. GRAY, M. H., LL. D., Medical Superintendent. 
Associate Editors, 
JUDSON B. ANDREWS, M. D., 
WILLIS E. FORD, M. I)., , _ . . 
> Assistant Physicians. 
ALFRED T. LIVINGSTON, M. D., y 
T. F. KENRICK, M. D., 
THEODORE DEECKE, Special Pathologist. 
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Exchanges, Books for Review, and Business Communications 
may be sent to the Editor, directed as follows: “ Journal of 
Insanity, State Lunatic Asylum, Utica, N. Y.” 
The Journal now begins its thirty-fifth year. It was established 
by the late Dr. Brigham, the first Superintendent of the New York 
State Lunatic Asylum, and after his death edited by Dr. T. Romeyn 
Beck, author of “Beck’s Medical Jurisprudence;” and since 1854, by 
Dr. John P. Gray, and the Medical Staff of the Asylum, It is the 
oldest journal devoted especially to Insanity, its Treatment, Juris- 
prudence, &c., and is particularly valuable to the medical and legal 
professions, and to all interested in the subject of Insanity and Psy- 
chological Science,