A TREATISE 
ON 
MENTAL UNSOWNDNESS, 
EMBRACING A 
GENERAL YIEW OF PSYCHOLOGICAL LAW. 
BY 
FRANCIS WHARTON, LL.D., 
AUTHOR OF TREATISES ON CRIMINAL LAW, AND ON THE CONFLICT OF LAWS. 
PHILADELPHIA: 
KAY & BROTHER, 17 AND 19 SOUTH SIXTH STREET. 
1873. Entered according to Act of Congress, in the year 1855, by 
KAY & BROTHER, 
in the Office of the Clerk of the District Court of the United States in and for the 
Eastern District of Pennsylvania. 
Entered according to the Act of Congress, in the year 1860, by 
KAY & BROTHER, 
in the Clerk’s Office of the District Court of the United States in and for the 
Eastern District of Pennsylvania. 
Entered according to Act of Congress, in the year 1872, by 
KAY & BROTHER, 
in the Office of the Librarian of Congress, at Washington. PREFACE. 
Since the publication, in 1860, of the second edition of this 
work, the specialty of psychological law has taken a shape 
which has made necessary the preparation of a treatise which 
is substantially new. The circumstances which have led to 
this change may be thus stated. 
Until the close of the last century, insanity received but 
little attention from physicians, and still less from psycholo- 
gists. “ Lunatics,” to follow the barbarous old English desig- 
nation, were regarded as outcasts mostly incurable; as devoid 
of those sensibilities which call for tender care; as present- 
ing little more claim to philanthropic consideration than do 
brutes. Unless birth or wealth gave special opportunities 
for their custody at home, they were huddled, in England and 
France, in pens, or chained in cells, where they were generally 
subjected to treatment the most brutal. In Hew England 
they were often let out by the town to the lowest bidder, who 
undertook to support them for a pittance scarcely sufficient to 
buy offals for their food, and who permitted them, when they 
were gentle, to roam at large, or chained them, when violent, 
in stables. Asylums, as reformatory and hygienic establish- 
ments, were unknown. Hence arose the tendency both of 
psychologists and courts to narrow the definition of insanity 
so as to reduce as far as possible the numbers of the class who 
were to be subjected to so wretched a doom. 
But on the insanity of George III. a new era came in. In- 
sanity could not be so vulgar a thing when it attacked the 
V PREFACE. 
king. It could scarcely be regarded by loyal Englishmen as 
a merited curse, when it visited a prince of whose virtues they 
were justly proud, and of whose obstinate self-will they were 
blindly ignorant. Philanthropists as well as philosophers 
poured in with abundant advice as to the tenderest treatment 
to be applied to the royal sufferer; and committees of the 
House of Commons vied with medical commissions in specu- 
lating on the characteristics of a malady which had become 
exalted in the exaltation of the victim on whom it had 
pounced. Fortunately for the interests of humanity, almost 
simultaneously took place in Paris the investigations of Pinel. 
This remarkable man, who united in rare excellence great 
administrative power, untiring patience of research, and sin- 
gular attractiveness of style, found the Bicetre, when he took 
medical charge of it in 1791, in a condition at which humanity 
shuddered. It combined, under one general superintendence, 
the functions of almshouse, prison, nursery, foundling’s home, 
and lunatic asylum, with no distinction made in the treatment 
of crime and of disease. Such patients as could do so without 
disturbance mingled with the other inmates of this vast abode 
of wretchedness and of guilt; but those who were in any way 
troublesome were chained in damp and putrid cells, under the 
charge of convicts whose desperateness seemed to constitute 
their title to this distinction. Against this inhumanity Pinel 
protested with such untiring and dauntless eloquence that he 
succeeded in effecting a thorough reformation. A separate 
asylum, based on wise sanitary regulations, was opened for the 
insane, and subsequently the a distinct establish- 
ment for deranged women, was organized under his particular 
care. lie was succeeded at the Salpetri&re by Esquirol, who 
had been his assistant, and by whom his wise hygienic reforms 
were further elaborated and extended. 
Nor did the efforts of these eminent physicians stop at the 
VI PREFACE. 
amelioration of the physical and mental condition of the in- 
sane. Madness having been shown to be capable of cure, and 
to be a condition in itself implying no moral stigma, and in- 
sane asylums having been proved to be the places where the 
insane can most readily be restored to health, many persons 
came to be regarded by their friends and by a rightful public 
feeling as insane, who previously would have been treated as 
sane. The definition of insanity, in the philanthropic mind 
at least, was so enlarged as to include all persons who, while 
not being clearly maniacs, were yet subject to mental or moral 
anomalies which a wise medical treatment could remove. 
But this was not the only circumstance that tended to an 
expansion of the definition. Another influence, still more 
marked, had already prepared the public mind to treat as in- 
sanity much that was really only folly or guilty impulse. 
Between 1760 and 1764, Rousseau published his Contrat Social 
and Emile, works which, in the sentimental humanitarianism 
they inculcated, were the natural extreme reaction from the 
inhumanity of the prior absolutist regime. Rousseau flamed 
with a romantic admiration not merely for the liberty to do 
right, but for the liberty to do wrong. Even the grossest 
natural instincts were of divine origin, and should be nursed 
with delicate respect. Crime was something to which a man 
was impelled by his nature; else why should he indulge in 
crime? Heretofore all insanity was crime. Row all crime 
was to be insanity. Sin was not to be viewed as horrible and 
odious, but as something abnormal, indeed, but provocative of 
curious regard and sympathy. And criminals were an in- 
teresting class of lunatics, who were especially consecrated to 
the restorative care of the State. 
Pinel, like most other French philosophers of his day, was 
not slow, when responding to this reaction, to welcome a plan 
which proposed to extirpate crime and inaugurate liberty, by 
VII PREFACE. 
placing crime distinctively under humane medical care. Un- 
doubtedly there was much in his special experience to 
strengthen him in this view. He had seen many insane per- 
sons treated as criminals. It was natural to him to assume 
the converse, and to hold that there are many criminals who 
are to be treated as insane. In sustaining this view he 
cautiously though distinctly set forth the proposition, to be 
hereafter fully discussed,(a) that there is a distinct form of 
madness in which the reason remains unimpaired. It is true, 
when he came to illustrate this by examples, it was found that 
the “reasoning maniacs,” whom he described, were more or 
less maniacs even in their reason. But nevertheless the pro- 
position fitted symmetrically into the philosophy of the French 
revolution, and was accepted by the apostles of that revolution 
wherever they taught. 
Fifty years afterwards, in times greatly changed, another 
influence arose to give fresh impetus to the same peculiar 
theory. The French revolution was over, and with it had 
vanished those ideas of sentimental humanitarianism which 
had lent it so much fascination. It is true that the evapo- 
rating process was not without a sensible deposit of good. 
Insanity, for instance, was no longer associated with crime; 
and the speculations of Pinel, reproduced in a modified shape 
by his scholar, Esquirol, were, when accepted by French legis- 
lation, interpreted to mean nothing more than that crime is 
often a consequence of insanity, and, when so, is irresponsible. 
In 1798, however, Gall startled the scientific world by his 
alleged discovery of phrenology. His genius, eminently enter- 
prising and constructive, but shut out by the then state of 
Europe from political adventure, betook itself to adventure in 
science. Arrested, as he tells us, by the fact that those of his 
(a) Infra, § 531. 
VIII PREFACE. 
school companions who had good verbal memories had bulging 
eyes, he gradually developed the theory that each function and 
propensity had a separate local habitation in the brain; and 
that the power of the function or propensity varied with the 
size of its cerebral apartment, as measured on the outside. 
As, however, each function and each propensity dwelt alone in 
its particular cell, each was capable of independent action, and 
of course, as each could be independently strong or weak, each 
could be privately insane. This severance of functions and 
propensities was the distinguishing feature of Gall’s system; 
and to establish it psychologically, he devoted the energies of 
a mind which, while disdaining logical restraint, and rash in 
leaping at results, was peculiarly quick, curious, and specious. 
A peripatetic from necessity, for the German reactionary 
governments, doubtful of the uses to which his philosophy 
might be put, forced him into a series of exiles, he collected, 
wherever he went, from newspapers, from sympathetic disci- 
ples, from every quarter, in fact, except the official reports of 
experts and of courts, every anecdote by which his theory 
could be helped. Such was the piquant plausibility of his 
publications that they not only attracted interest, but en- 
listed enthusiasm. Nothing, indeed, could be more racy than 
his details. A distinguished prince, remarkable for his 
sagacity and cool sense, was possessed, it was declared, by an 
irresistible propensity to steal. A young girl, of singular 
amiability and excellent reasoning powers, was in the habit of 
setting fire to houses. A philanthropist, blandly sane in all 
other respects, met with some injury to the cell that restrained 
the function of destructiveness, and forthwith betook him to 
killing his neighbors. FTo doubt there was a basis of reality 
in most of Gall’s cases. The difficulty was, that he did not 
sufficiently investigate the facts. For all he knew, and for all 
he inquired, the prince, and the girl, and the philanthropist 
IX PREFACE. 
might have been the descendants of insane parents; might 
have been epileptics; might have betrayed in their families 
unmistakable symptoms of mental derangement; might sub- 
sequently have died in a madhouse. ETor were his cases cited 
in such a way as to enable subsequent investigators to inquire 
into their accuracy. ETo one could tell whence most of them 
came. Yet so engaging was the style in which they were 
narrated, and so great was the confidence felt in Gfall as a 
narrator, that they were readily accepted by those whose 
theories they subserved. The psychological conclusion was 
inevitable. If criminal instincts have separate apartments in 
the brain, then those criminal instincts can be separately 
insane. Hence, the doctrine of monomania, sustained at 
once by Gall’s facts and by his hypothesis, began, under the 
impulse thus imparted, once more to challenge judicial 
assent. 
On Anglo-American jurisprudence, the causes just mentioned 
would have had little influence had it not been for the indirect 
bearings of another condition. Hothing; could have been more 
barbarous than the old English adjustment of penalty to crime. 
A man who stole a fowl was capitally punished; and, even 
after a century of legal reform, the law in England still is 
that a man who kills another when designing to hurt, but not 
to kill, is amenable to as high a sentence as he who deliberately 
assassinates. But humane observers revolted from this sub- 
jecting crimes so entirely distinct to the same penalty, and 
they cast about for some method of relief. In the United 
States a remedy was seized which was in a large measure effi- 
cacious. Murder was divided into two degrees, and capital 
punishment was reserved exclusively for cases in which there 
was proved a premeditated intention to take life. On this 
has been not uufrequently grafted the humane construction 
that where from mental or nervous excitement the defendant 
X PREFACE. 
is incapable of forming a specific intent, then the capital 
offence is not proven.(b) But in England, these mitigating 
qualifications were not accepted; and though in the United 
States the division of murder into two degrees was at an 
early period established almost universally, the courts were at 
first slow to recognize the fact that a mind disturbed by 
nervous excitement and blurred by insane predispositions may 
be incapable of intellectual premeditation, while at the same 
time capable and responsible for passionate crime. Hence, it 
has been that the jury has been too often narrowed to a 
choice between conviction of a capital offence and acquittal; 
and hence, to justify an acquittal, insanity has sometimes been 
used as a pretext, when insanity in the correct sense of the 
term did not exist. 
This unscientific extension of insanity received a quasi 
scientific sanction under the following circumstances. By 
the Anglo-American practice, a party is entitled to call on 
trial any expert he may select; and he is not likely to select 
any whose views will not promote his cause. It so happens 
that among the present large body of experts, there is little 
trouble in discovering one or more by whom is maintained 
the particular psychological theory of which the party on 
trial stands in need. It is an old truth that there is nothing 
so absurd but that some philosopher may be found by whom 
it is affirmed. “Uihil tarn absurde clici potest quod non 
dicatur ab aliquo philosophorum.”(c) To sustain a particular 
defence, for instance, it is necessary to prove that the “ morals’’ 
may be insane while the mind is sane. The defendant’s coun- 
sel forthwith proceed to search among the multitudes who 
have written on insanity, or have been in any way conversant 
with the insane, for a philosopher by whom this unique hypo- 
thesis is held. When the case is tried, this philosopher is pro- 
(5) See supra, § 200. 
(c) Cicero, de Divinatione, II. 58. 
XI PREFACE. 
chiced and swears promptly and positively to his belief. On the 
strict principles of law, he cannot he cross-examined as to the 
opinions of others, for this would be hearsay. So far, there- 
fore, as the particular case is concerned, he stands before the 
jury as if he was the collected sense of the psychological 
experts of the whole world. It may be that the prosecution 
may be able to cancel his testimony by the production of a 
preponderating weight of on the other side. But to 
do so requires energy, skill, and means; and too often has the 
duty been neglected, and the case left to rest, in criminal 
trials, on the testimony of the exceptional experts selected by 
the defence. Hence it is that juries, if not courts, have occa- 
sionally succumbed to such testimony in respectful amazement, 
feeling, indeed, that it is wrong, but not seeing how it could 
be disregarded. 
As influences disturbing the juridical conception of insanity 
—to recapitulate those which we have just been enumerating 
in detail—we may, therefore, mention, (1) the romanticism of 
the French psychological followers of Rousseau, afterwards 
aided by phrenology, which refined crime into insanity; (2) 
reaction from the old English barbarism which punished in- 
sanity as if it were crime; and (3) the hesitation felt by the 
courts in grappling with the philosophy of a question which 
had been claimed to be purely medical. Under these circum- 
stances arose that confusion of law which was noticed in the 
prior editions of this treatise. 
Since 1860, when the second edition was issued, a great change 
has taken place. Before that period, we may say generally, 
there had been no positive and final repudiation by psycho- 
logical science of the theory of criminal monomanias. Since 
then, medical as well as psychological science has rallied, and 
from all quarters there has risen, as will be hereafter shown 
more fully, almost an unbroken denunciation of a scheme of 
XII PREFACE. 
psychological romanticism which sober-minded men have 
learned to feel is as repugnant to science as it is hostile to 
society.(eT) And this advance of science, towards a common 
reconciliatory stand-point, is now met by a corresponding 
advance of law. It has been just stated that one of the causes 
of early juridical confusion on this topic, was the revulsion 
from the excessive punishments assigned by the old law to 
offences of even lighter grade. Civilization was shocked at 
seeing a man who from nervous or mental or physical disorder, 
was incapable of cool premeditation or exact intent, hurried 
to the gallows for what might be a comparatively venial crime; 
and it was to the desire to save such that the toleration of the 
idea of irresponsibility in such cases is in a large measure 
traceable. But it was soon found that this enlargement of 
irresponsibility worked badly. It exposed many persons, 
virtually sane, to the pains and penalties of insanity. It 
enfranchised a dangerous class of outlaws, too insane to be 
punished for crime, and yet too sane to be restrained. It 
involved, on the part of the State, the abdication of one of its 
chiefest functions—the building up of a right moral sense in 
those of its subjects in whom such moral sense is deficient. 
But is so violent a remedy necessary? Is there no alter- 
native between an unjust conviction of a man of an offence 
to whose grade of guilt he does not quite reach, and his 
equally unjust acquittal in the face of evidence showing his 
guilt of an intermediate grade? It has already been seen 
that in the United States, at an early day, a statutory ap- 
proach was made to this result by the beneficent enactments 
dividing murder into two degrees. But this by itself is not 
enough. A court may say to a jury, “Here is evidence of pre- 
meditation; you must here find either murder in the first 
(d) See infra, §§ 552-643. 
XIII PREFACE. 
degree, or acquit.” Eminent jurists, in order to meet this 
difficulty, have authoritatively advanced positions which have 
just been incidentally noticed, and will now be stated more 
fully. 
The idea of diminished responsibility, in cases of abnormal 
excitement, is already familiar to the law. Homicide in hot 
blood is not murder but manslaughter; yet, what is rage but 
a short frenzy, and how difficult is it to distinguish such 
frenzy from the mania transitoria of the alienists ? A drunken 
man engages in a brawl and shoots an innocent stranger; and 
here, as his mind was so stupefied by drink that he was inca- 
pable of a specific intent to take life, the offence is reduced to 
murder in the second degree. Or, he receives and passes a 
counterfeit note when in the same condition, and here his drun- 
kenness is admissible to show that he did not know the note 
was counterfeit. Or, a series of men, swept away by religious 
or political excitement, fall into such a highly charged and 
abnormal state of mind that they are incapable of accurate 
perception, and here, then, homicide committed when in such 
A 
a state is held to be reduced to murder in the second degree.(e) 
How are these last states distinguishable from other well- 
known exciting influences? What is there that mitigates 
guilt in cases where the patient is advanced one degree in the 
insane scale, but will not mitigate it when he is advanced two 
degrees ? 
By the Austrian and Bavarian codes this question has been 
recently answered by the recognition of degrees in penal res- 
ponsibility. Diminished responsibility (verminderte Zurech- 
nungsfahigkeit.) is distinctively and authoritatively defined as 
a condition in which the mind is incapable of calm and exact 
premeditation or conception, and to this condition a lesser 
grade of punishment is assigned. And the same principle is 
XIV 
(e) See infra, § 181. PREFACE. 
adopted juridically by the North German courts. In England 
there is no statutory adoption, so far as concerns insanity, of 
such diminished responsibility, nor have the courts as yet pro- 
ceeded so far as to look upon nervous or mental disease as 
lowering the grade of guilt, emphatic as they are in recog- 
nizing the entire suspension of responsibility when insanity 
destroys the capacity of distinguishing between right and 
wrong. But the reform which the courts, in their distinc- 
tively judicial capacity, have felt unable to effect, has been 
brought about by the joint action of judiciary and executive. 
Thus in two remarkable cases of homicide, those of Watson 
and Edmunds, to be hereafter fully noticed,(/) the defence 
being insanity, but the proof amounting merely to insane pre- 
disposition, or at the highest to a light and incipient stage of 
insanity, while the jury were directed to convict, yet, after 
conviction of the capital crime, on application to the crown, 
in which the judges joined, capital punishment was commuted 
to imprisonment for life. 
In the United States, in construing the statutes already 
noticed as establishing degrees in homicide, the courts(y) have 
uniformly held, as has been already noticed, that, when through 
drunkenness the defendant was incapable of premeditation or 
of specific intent, then only the second degree of murder is 
reached. The same relaxation has been applied, not only in 
the United States, but in England, to cases of larceny and 
other fraudulent crimes when the party’s mental condition was 
such through drunkenness that he was incapable of guilty 
knowledge or intent. And in Pennsylvania, in a series of 
cases of riotous homicide committed by parties in a high state 
of political and religious excitement, the courts humanely and 
wisely accepted the principle already stated, that there may 
(/) See infra, §§ 166-173. 
(g) See infra, §§ 214-227. 
XV PREFACE. 
be a fury and distraction of mind in which the capacity to 
comprehend, to compare, to weigh, and to premeditate, may 
be tethporarily so far depressed or disturbed as to bring the 
offence within the definition of murder in the second, as dis- 
tinguished from that of murder in the first degree.(A) 
From the scope of the reasoning which has led to such 
results, it is impossible to withdraw cases of mental excitement 
and disturbance, which, though not amounting to such mature 
insanity as to utterly suspend responsibility, yet prevent the 
patient from forming calm, premeditated, and specific criminal 
designs. Slow as have the courts been in reaching this con- 
clusion, we may now regard it as gradually winning judicial 
acceptance ;(£) and if so, we may view the law as having 
received an expansion philosophically consistent with its own 
principles, and bringing it in full accord with the mature and 
humane renditions of science. Heretofore “moral insanity,” 
and “ insane monomania” have owed the little practical favor 
they have wrung from courts and juries to the fact that there 
were cases in which their recognition seemed to be the only 
way of escaping a verdict which would involve the penalty of 
death. The consequence was that the public was outraged, 
sometimes by the acquittal, on the ground of insanity, of men 
who in no other relation would be viewed as insane, and some- 
times by the conviction and execution of men who, though 
not fully insane, would in no other relation be regarded as 
fully and perfectly responsible. The modification of the law 
now introduced avoids both these extremes. It says, on the 
one hand, that men not fully and perfectly insane are not to be 
acquitted of crime. It says, on the other hand, that they are 
not to be convicted of those higher grades of calm and specific 
guilt of which they were not capable. It judges them accord- 
(h) See t'fl/rn, §§ 181, 200. 
(t) See infra, § 200. 
XVI PREFACE. 
ing to their lights, and assigns to them that well-known grade 
of modified guilt which belongs to those who do wrong, 
wilfully, indeed, and intentionally, but whose illegal acts are 
the consequents of such passion as destroys in them the capacity 
of accurate guilty knowledge or complete guilty design. 
Such is the shape into which the law of insanity is now 
gradually settling. That the change is one of natural and 
logical development, will at once be seen; but with regard to 
it, so far as concerns the question of time, and therefore, so far 
as concerns the present edition of this work, two circumstances 
are to be particularly noticed. The first is, that the develop- 
ment here spoken of, has, on the law side, evidenced itself 
distinctively in the last ten years. The second is, that, on the 
psychological and medical side, it has only been within the 
last ten or fifteen years that the opinions of experts and of 
scientists have presented themselves in such a body as to enable 
the full voice of science and experience in this relation to be 
heard. The results on both sides of the inquiry will be ex- 
hibited in the following pages. What has been just said is 
mainly designed for the purpose of explaining why the text of 
the former editions has been in a large measure thrown aside, 
and why, in its place, is presented what is substantially a 
new treatise. 
The author takes this method of expressing his acknowl- 
edgments to T. C. Coogan, Esq., and Nathan Franks, Esq., 
for aid rendered in examination of authorities. 
XVII CORRIGENDA. 
Page 196, at end of first paragraph, add in note: “A partial correction of 
this has been, it is true, attempted in New York, by the statute of May 
17, 1869 (chap. 895), authorizing the county judge, where ‘any person 
in confinement for the crimes of arson or murder or attempt at murder shall 
appear to be insane,’ to examine into the question, and, for this purpose, 
‘call two or more respectable physicians and other credible witnesses,’ 
and if necessary impanel a jury.” 
Page 196, line 19, for “opinions,” read “opinion.” 
Page 256, note (<?), for “ Harrington,” read “Wellington.” 
XVIII TABLE OF CASES. 
[The numbers refer to sections.] 
A. 
Abbey v. Lill 281 
Ackey v. Stevens 61, 256 
Adams v. Ker 242 
Addington v. Wilson 36 
Affleck v. Affleck 4 
Andrews, Com. v. 291, 375, 388, 416, 
708, 712 
Andrews v. Weller 21, 72, 77 
Ashworth v. Kittridge 303 
Atkinson v. Medford 16 
Atty. v. Parnther 257 
Ayrey v. Hill 72 
B. 
Baker v. Lewis 77 
Baker’s Case 578 
Baldwin v. Dunton 2 
Baldwin v. State 272 
Banks v. Goodfellow 46 
Bannatyne v. Bannatyne 33, 63, 64, 
83, 270 
Barry v. Buttin 77 
Barton, R. v. 117, 127, 164 
Bates v. Bates 77 
Baxter v. Abbott 249, 283, 375, 388 
Baxter v. Portsmouth 4, 96 
Beals v. See 4, 8 
Beavan v. McDowell 8, 9 
Belencia, People v. 222 
Beller v. Jones 9 
Bennett v. State 204 
Bennett v. Taylor 242 
Bierce v. Stocking 276 
Birdsong v. Birdsong 66 
Black v. Ellis 72 
Blanchard v. Nestle 21, 77 
Blatchford v. Christian 76 
Bleecker v. Lynch 88 
Boardman v. Woodman 37, 272 
Bogardus v. Clarke 246 
Bond v. Bond 7 
Bonsall v. Chancellor 8 
Borradaile v. Hunter 230 
Boswell v. Com. 214, 257 
Bovard v. State 145 
Bowman v. Woods 303 
Boyd v. Eby 35 
Boylan v. Meeker 84 
Bradley v. State 267 
Bradley v. S. F. M. Co. 274 
Brandon, State v. 174, 257 
Breasted v. Farmer’s Loan Co. 232 
Bringer, State v. 257 
Brooks v. Barrett 241 
Brownfield v. Brownfield 31 
Brown v. Mollison 77 
Brydges v. King 77 
Buckminster v. Perry 246, 273 
Burrows v. Burrows 241 
Butlin v. Berry 21 
C. 
Caleb v. State _ 272, 277 
Calloway v. Witherspoon 66 
Campbell v. Hooper 12 
Campbell v. State 242 
Carey, Com. v. 281 
Carr v. Holliday 9 
Carrol, R. v. 216 
Carter v. State 204, 303 
Cartwright v. Cartwright 256 
Castner v. Sliker 273, 276 
Caulkins v. Fry 69 
Ceaver v. Phelps 8 
Chambers v. Queen’s Proctor 241 
Chapman v. Graves 242 
Chase v. Lincoln 273 
Choice v. State 643 
Christmas v. Mitchell 95 
Christmas, State v. 376 
XIX TABLE OF CASES. 
Clapp v. Fullerton 40, 272 
Clark v. Fisher 246 
Clark v. Sawyer 77, 246 
Clark v. State 272, 283 
Clarke, U. S. v. 205, 210 
Clary v. Clary 272 
Clearwater v. Kimber 3 
Clift v. Schwabe 231 
Cocks v. Purday 303 
Coffman, People v. 117, 174, 266 
Collier v. Simpson 303 
Comstock v. Hadlyme 249 
Conant v. Jackson 66 
Converse v. Converse 19, 21, 77 
Cook v. Clayworth 66, 70 
Cooper v. Mass. Mut. Life Ins. Co. 
237 
Cornwell v. State 204, 210 
Cotton v. Ulmer 35, 40, 246 
Cottrell v. Mason 281 
Couch v. Couch 83 
Cram, Adm., v. Cram 12, 272 
Cross, State v. 210 
Crowninshield v. Crowninshield 249 
Crum v. Thornly 35, 250 
Cruse, R. v. 216 
Cuncliflf v. Sefton 242 
Currie v. Child 242 
Currier v. B. and M. R. R. 274 
Curry v. Com. 223 
D. 
Daniel v. Daniel 29 
Davies, R. v. 200a 
Davis et al. v. Rogers 248 
Davis v. Mason 281 
Dawson v. State 227 
Dean v. Am. Mut. Life Ins. Co. 234 
Delafield v. Parish 28, 247, 283 
Dennett v. Dennett 6 
Den v. Vancleve 20 
Denn v. Johnson 77 
Denton v. Franklin 77 
Dew v. Clark 41 
Dewitt v. Bailey 272 
Dietrick v. Dietrick 77 
Dodge v. Meech 77 
Doe v. Regan 272 
Donald v. Morton 13 
Dornich v. Reichenbach 21, 77 
Dorr v. Munsell 66 
Dorsey v. Warfield 272 
Drew, U. S. v. 204 
Duffield v. Robeson 241 
Dwerryhouse, R. v. 200a 
E. 
Ean v. Snyder 247 
Eastbrook v. Union Mut. Ins. Co. 235 
Eastwood, People v. 273 
Eaton’s Adm. v. Perry 68 
Eckert v. Flowry 78, 272 
Eddy, Com. v. 257, 262, 265 
Edmunds, R. v. 119, 167, 375 
Elliott v. Inee 9, 13, 270 
Emery v. Hoyt 5, 254 
Eriswell, R. v. 242 
F. 
Fairchild v. Bascomb 276, 288, 291, 
292 
Fall v. Penns 214 
Farkin, Com. v. 117 
Farmer, R. v. 399 
Farnam v. Brooks 6 
Farrell v. Brennan 246, 272 
Farrer v. State 174 
Faulder v. Silk 13 
Fennel v. Tait 50, 242, 243 
Fenton v. Hallo way 65 
Fenwick v. Bell 281 
Ferguson v. Barrett 271 
Fetter, State v. 160 
Fisher v. People 159, 264 
Fitzgerald v. Reed 8 
Fitzliugh v. Wilcox 13 
Flanagan v. Fenlayson 35 
Florey v. Florey 40 
Folkes v. Chadd 281 
Ford v. Ford 77 
Ford v. Hitchcock 66 
Fowler v. Mut. Life Ins. Co. 238 
Frances, R. v. 287, 290 
Freeman v. People 117, 119, 174 
French, R. v. 491 
Fullock v. Allison 77 
Furbush, Com. v. 578 
G. 
Gable v. Grant 61, 77 
Gahagan v. R. R. 273 
Gamble v. Gamble 84 
Gamlem, R. v. 215 
Garbutt, People v. 210, 267, 375 
Gardiner v. Gardiner 72, 77 
Gardiner, State v. 117, 174 
Garvey, State v. 224 
Garrow v. Brown 10 
Gass v. Gass 35 
XX TABLE OF CASES. 
Gay v. Mut. Ins. Co. 239, 294 
Gehrke v. State 272, 303 
Gibson v. Gibson 272 
Gibson’s Case 374, 375, 606 
Golliher v. Com. 223 
Goode, R. v. 117, 164, 200a 
Gornbault v. Public Adm. 62 
Gore v. Gibson 65, 66, 70 
Grabil v. Barr 77 
Granger v. State 126 
Grant, State v. 145 
Grant v. Thompson 8, 272 
Graves v. St. Louis Mut. Ins. Co. 
117, 196, 236, 278 
Griffin, People v. 578 
Grindley, R. v. 216 
Gut, State v. 210, 222 
H. 
Hacker v. Newborn 77 
Haden v. Hays 62 
Haggerty, Com. v. 214, 221 
Haile v. The State 221 
Hall v. Hall 40, 77, 79 
Hall v. Unger 40 
Hall v. Warren 62 
Hammill, People v. 214 
Handley v. Stacey 73 
Harlowe, State v. 214 
Harrell v. Harrell 80 
Harrison v. Rowan 20, 61, 77, 272 
Harris v. Ingledees 246 
Harris, People v. 222 
Hart, Com. v. 214 
Hart v. Deamer 13 
Hartman v. Keystone Ins. Co. 233 
Harvey v. Sullens 90 
Haskell, Com. v. 144, 159, 198 
Hathorne v. King 77 
Heath, Com. v. 119, 174, 265 
Hendrix v. Mooney 255 
Henry v. Fine 9 
Hewson, U. S. v. 155 
Higginson v. Weld 15 
Higginson, R. v. 117, 164, 287 
Hill, R. v. 50, 242 
Hinchman v. Ritchie 104 
Hinkle, State v. 276 
Hix v. Whittemore 61, 256 
Hoge v. Fisher 61, 256 
Holland v. Miller 76 
Holmes, U. S. v. 135, 174 
Hopper v. Am. Seaman’s Friend 
Society 39 
Hopps v. People 159, 264 
Horne v. Horne 21, 77 
Horton v. Green 276 
Hovey v. Chase 2, 3 
Hovey v. Hobson 10 
Howard v. Coke 77 
Howe v. Howe 251 
Hubbard v. Hubbard 246 
Hubley v. Vanhorn 281 
Hulings v. Laird 100 
Hundley, State v. 205, 263 
Hunting, State v. 117, 145 
Hutchinson v. Brown 67 
J. 
Jackson v. King 246 
Jackson, R. v. 491 
Jackson v. Vandeusen 61, 246 
Jacob v. Richards 271 
James v. Langdon 35 
Jenckes v. Smithfield 40 
Johnson v. Mellicott 66 
Johnson v. Moore 35 
John, State v. 210 
Jones, Com. v. 214, 221 
Jones, State v. 267 
K. 
Kelly v. Miller 36 
Kelly v. State 210 
Kelly v. Webster 61 
Kendall v. May 9, 242 
King, People v. 222 
Kinne v. Kinne 77, 272 
Kirkbride, Com. v. 104 
Klein’s Case 578 
Klinger, State v. 263, 288, 292 
Knapp, State v. 274 
Kriel v. Com. 267 
L. 
Lackey v. Lackey 101 
Lake, People v. 288 
Lane v. Wilcox 281 
La Rue v. Gilkeson 4, 8 
Lawrence, State v. 117,145,174, 262 
Lawrence, U. S. v. 257 
Law, R. v. 118 
Lawton, R. v. 481 
Layton, R. v. 117, 164, 258 
Leech v. Leech 35, 87 
Lee v. Lee 36 
Leonard v. Leonard 13 
Levy v. Baker 70 
XXI TABLE OF CASES. 
Lewis v. Baird 61, 256 
Lewis, People v. 210, 222 
Lilly v. Waggoner 32, 62 
Lincoln v. Buckmaster 7 
Lindsey v. Lindsey 91 
Livingstone v. Com. 276 
Livingstone v. Kierstadt 242 
Lodge v. Phipher 281 
Loeffner v. State 257, 262 
Long v. Whidden 8 
Lovatt v. Tribe 13 
Lowe v. Williamson 77, 89 
Lucas v. Parsons 40 
Ludwick v. Com. 105 
Lumning v. State 303 
Lyon v. Lyman 281 
M. 
Maconnehey v. State 204 
Mann v. Betterby 6 
Marler, State v. 267 
Marsh v. Tyrel 77 
Martin’s Case 607 
Matton v. Nesbit 281 
Maverick v. Reynolds 88 
McAllister v. State 117, 283, 288 
McCann, People v. 267, 285, 287 
McFarland, People v. 412 
McGlue, U. S. v. 205, 210, 267, 288 
McG-onigal, State v. 206 
McIntyre v. People 210 
McKee v. Nelson 274 
McKenzie v. State 262 
McLeod, People v. 126 
McMahon v. .Ryan 78 
McMaster v. Blair 21 
McNaughton, R. v. 119 
Meakin, R. v. 204, 209, 216 
Means v. Means 83 
Menkins v. Lightner 61, 65, 256 
Miller v. Craig 11 
Milligan, R. v. 490 
Mitchell v. Kingman 8 
Molton v. Camroux 8, 9 
Monroe v. State 126 
Moody v. Rowell 281 
Mooney v. State 225 
Moore v. Moore 95 
Moore, R. v. 215 
Morgan v. Boys 86 
Morley, Rex v. 242 
Morrison v. McLeod 66 
Morse v. Crawford 14, 71, 272 
Mosler, Com. v. 117, 145, 157 
Moss v. Tribe 9 
Myatt v. Walker 252 
Myers, People v. 257 
N. 
Nagle v. Baylor 70 
Nailor v. Nailor 107 
Negro Jerry v. Townsend 288 
Newman v. Ide 273 
Nichols v. Binno 63, 83 
Nichols v. Nichols 18 
Nichols v. State 215, 221 
Noel v. Karper 270 
Nottridge v. Ripley 104 
Nussear v. Arnold 77 
O. 
O’Brien, State v. 303 
Oliver v. Berry 95 
Oxford, R. v 117, 119, 164, 283 
P. 
Parish v. Parish 27 
Parker v. Davis 4 
Patterson v. Patterson 77 
Pearce, R. v. 2005 
Peck v. Carey 72, 74 
Pigman v. State 215, 221 
Pike, State v. 108, 111, 190, 259, 272, 
273, 274 
Pine, People v. 126 
Pirtle v. State 210, 214, 220, 221 
Pitt v. Smith 65 
Polk v. State 267 
Poole v. Richardson 273 
Portsmouth v. Portsmouth 13, 17 
Potts v. House 21, 77, 272 
Pratt, State v. 105 
Pritchard, R. v. 98 
R. 
Rabello’s Case 578 
Rambler v. Tyron 272 
Read v. Legard 13 
Real v. People 272 
Reed v. Harper 71 
Rees v. Stille 246 
Revett v. Braham 281 
Reynolds, Com. v. 242 
Reynolds v. Reynolds 95 
XXII TABLE OP CASES. 
Rhodes v. Bates 10 
Rice v. Peet 8 
Richards, R. v. 115, 287, 292 
Rich, Com. v. 277 
Roberts v. People 200, 211 
Roberts v. Trawick 83 
Robertson v. Stark 274 
Robinson, People v. 214 
Robinson v. Robinson 270 
Rodman v. Lilley 6, 67 
Roe v. Taylor 31 
Rogers, Com. v. 117, 119, 126,134, 
174, 262, 265, 283, 288, 291, 375 
Roudenbu3h, U. S. v. 215 
Rowell v. City of Lowell 284 
Runyan v. Price 246 
Rutherford v. Ruff 10 
S. 
Sacoyer v. Lufkin 13 
Saxon v. Whitaker 246 
Schaller v. State 210, 217 
Schneider, Com. v. 103 
Schultz, U. S. v. 117,174 
Scott, State v. 126 
Scribner v. Crane 77 
Scruby v. Fordham 83 
Searle, R. v. 283 
Seeley v. Price 10 
Sentance v. Poole 65, 70 
Sergeson v. Sealey 13 
Sewall, State v. 205, 256 
Seymour v. Delaney 66 
Shaw v. Dixon 107 
Shaw v. Thackeray 65, 67, 70 
Shailer v. Bumstead 81 
Shater v. People 174 
Shinborn, State v. 274 
Shorter v. People 126 
Sill v. McNight 105 
Sims v. McLure 4 
Skidmore v. Romaine 8 
Sloan v. Maxwell 77 
Smith v. Com. 175, 211, 222, 267 
Smith v. Kramer 373 
Smith, People v. 375 
Smith v. Tebbitt 34, 45, 61, 253 
Snook v. Watts 270 
Snow v. Benton 377 
Somers v. Pumphrey 11 
Southerlin v. McKinney 246 
Spear v. Richardson 274 
Spear’s Case 616 
Spencer, State v. 117, 174, 256, 257, 
261 
Spittle v. Walton 242, 243 
Sprague, People v. 117 
Sprague’s Case 573, 578 
Stanton v. Wetherax 40 
Staples v. Wellington 5, 254 
Starke, State v. 257 
Starkhouse v. Horton 40, 270 
Starret v. Douglas 72 
Stead v. Calley 62 
Stedman v. Hart 13 
Stedham v. Stedham 75 
Stevens v. State 108, 159 
Stevens v. Yancleve 20, 61, 246 
Stewart v. Lispenard 25, 83 
Stokes, R. v. 117, 256, 257 
Stubbs v. Houston 21 
Sutton, R. v. 283 
Swan v. State 214 
T. 
Taylor v. Patrick 10 
Taylor, R. v. 256, 257 
Taylor v. Railroad 274 
Temple v. Temple 246 
Thomas, R. v. 204, 209, 216 
Thompson v. Kyner 30, 246 
Thompson v. Quimby 35, 36 
Thompson v. Thompson 35, 36 
Thom’s Case 678 
Thornley, Com. v. 241 
Thornton v. Royal Co. 281 
Titlow v. Titlow 270, 272 
Touchet, R. v. 374 
Townley, R. v. 127, 165 
Trumbull v. Gibbons 246 
Tuff v. Hosmer 249 
Tullis v. Kidd 277 
Turner v. Charman 246 
Turner v. Hand 38 
Turner, State v. 210 
Turton, R. v. 200a 
Y. 
Yan Alst v. Hunter 87, 89 
Yance, Com. v. 117, 174 
Yaughan, R. v. 117 
Yyse, R. v. 118 
W. 
Waring v. Waring 43, 242 
Washburn v. Cuddiky 303 
Watson v. Donnelly 26 
Watson, R. v. 119, 166 
XXIII TABLE OF CASES. 
Weems v. Weems 272 
Weir v. Fitzgerald 95 
Wellington, State v. 61, 256 
Werstler v. Custer 246 
Wetherbee v. Wetherbee 284, 288 
Wheeler v. Alderson 72, 272 
AVhitenack v. Striker 61, 270 
White, R. v. 606 
White v. Wilson 40 
Whitfield, R. v. 98 
Whitman v. Goodhand 81 
Whittier v. Franklin 274 
Wilkinson v. Mosely 272, 289 
Wilkinson v. Pearson 272 
Willis v. Quimby 274 
Willoughby v. Moulton 65 
Wilson, Com. v. 272, 291, 303 
Windsor, State v. 136, 174, 288 
Wiser v. Lockwood 16 
Woodbury v. Obear 287 
Woodward v. James 77 
Wordsworth v. Sherman 13 
Wright v. Tatham 272 
Wright, It. v. 290 
Wynn v. Allard 71 
Y. 
Yates v. Boen 4 
Yglesias v. Dyke 44 
Yoe v. People 304 
XXIV BOOK I. 
MENTAL UNSOUNDNESS. 
ANALYSIS. 
CHAPTER I. 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
A. What degree of mental unsoundness invalidates a contract or 
WILL, § 1. 
(a1) Imbecility, § 1. 
(a2) Contracts generally, § 2. 
(b2) Contracts of marriage, § 16. 
(c2) Wills, § 19. 
(&1) Delusions, § 34. 
(c1) Lucid intervals, § 61. 
(d1) Intoxication, § 65. 
(e1) Undue influence and fraud, § 76. 
(/') Presumptions. 
(a2) From character of act, § 83. 
(62) From old age, § 87. 
(c2) From party being deaf, dumb, cr blind, § 95. 
(<Z2) As to sanity generally, infra, §§ 246-269. 
B. What is to be proved in order to deprive a party of the 
MANAGEMENT OF HIS ESTATE, § 99. 
C. What avoids responsibility for crime, § 108. 
Preliminary question as to duty of court to lay down the law, § 108. 
(a1) Where the defendant is incapable of distinguishing be- 
tween RIGHT AND WRONG AS TO THE PARTICULAR ACT, § 116. 
(51) Where the defendant is acting under an insane delusion 
AS TO CIRCUMSTANCES, WHICH, IF TRUE, WOULD RELIEVE THE 
ACT FROM RESPONSIBILITY, OR WHERE HIS REASONING POWERS 
ARE SO DEPRAVED AS TO MAKE THE COMMISSION OF THE PAR- 
TICULAR ACT THE NATURAL CONSEQUENCE OF THE DELUSION, 
§ 125. 
VOL. I.—1 
1 MENTAL UNSOUNDNESS. 
[BOOK I. 
(e1) Where the dependant, being insane, is forced by an irre- 
sistible IMPULSE TO DO THE PARTICULAR ACT, § 146. 
(<Z>) “Moral insanity” (i. e. a supposed insanity of the moral 
SYSTEM CLAIMED TO COEXIST WITH MENTAL SANITY) IS NO 
DEFENCE, § 163. 
(e1) While experts may be called to testify as to states of 
MIND AND CONDITIONS OF HEALTH, IT IS FOR THE COURT TO 
DECLARE WHETHER SUCH STATES AND CONDITIONS CONSTITUTE 
IRRESPONSIBILITY, § 190. 
C/1) Predisposition to insanity as lowering grade of guilt, 
§ 200. 
Cgl) Capacity of insane defendants to plead, § 200a. 
D. IlOW FAR INTOXICATION AFFECTS RESPONSIBILITY, § 201. 
(a1) Insanity produced by delirium tremens affects responsi- 
bility IN THE SAME WAY AS INSANITY PRODUCED BY ANY OTnER 
CAUSE, § 201. 
(5') Insanity immediately produced by intoxication, does not 
DESTROY RESPONSIBILITY WHERE THE PATIENT, WHEN-SANE AND 
RESPONSIBLE, MADE HIMSELF VOLUNTARILY INTOXICATED, § 207. 
(c1) While intoxication is, per se, no defence to the fact of 
GUILT, YET WHEN THE QUESTION OF INTENT OR PREMEDITATION 
IS CONCERNED, IT MAY BE PROVED FOR THE PURPOSE ON DETER- 
MINING THE PRECISE DEGREE, § 214. 
E. Insanity as related to life insurance, § 228. 
F. Insanity, when disqualifying a witness, § 242. 
G. Evidence of insanity, § 246. 
(a1) Burden of proof, § 246. 
(a2) Civil issues, § 246. 
(b2) Criminal issues, § 257. 
(51) Effect of commissions of lunacy, § 270. 
(c1) Witnesses, § 272. 
(a2) Non-experts .§ 272. 
(b2) Experts, % 275. 
(a3) Wlio they are, and what are their qualifications, § 275. 
(b3) Questions to be put to them, § 283. 
(a4) When there was personal examination, § 283. 
(b4) As to facts proved on trial, § 287. 
(c4) On a hypothetical case, § 288. 
((Z4) On a conclusion of law, § 292. 
(c3) Weight to be attached to their testimony, § 293. 
(<Z3) Duties of, § 297. 
(a4) Not counsel, but semi-judicial assessors, § 298. 
(&4) Testimony not to be speculative, § 299. 
(c1) All materials of diagnosis should be secured, § 300. 
(<Z>) Scientific treatises, § 303. 
2 BOOK I.] 
MENTAL UNSOUNDNESS. 
(e1) Presumptions prom character op act, §§ 83, 359. 
Presumptions prom old age, § 87. 
Presumptions prom party being deaf, dumb, etc., § 95. 
CHAPTER II. 
MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
A. General theories op mental unsoundness, § 305. 
(a1) Preliminary observations, § 305. 
(ft1) Psychical theory, § 319. 
(c>) Somatic theory, § 320. 
(d1) Intermediate theory, § 329. 
(a2) Its basis, § 329. 
(b2) Its effect on responsibility, § 336. 
B. HOW MENTAL UNSOUNDNESS IS TO BE DETECTED, § 338. 
(a1) By whom, § 338. 
(ft1) At what time, § 341. 
(a2) Time of act, § 342. 
(ft2) At trial, § 343. 
(c2) At and after sentence, § 344. 
(c1) By what tests, § 345. 
(a2) Physiognomy, § 345. 
(ft2) Physical conditions, § 347. 
(a3) Injuries to brain, § 348. 
(b3) Anomalies of sensibility, of pulse, of secretions, of senses, 
§ 352. 
(c2) Hereditary tendency, § 362. 
(a3) Psychologically, § 362. 
(ft8) Legally, § 373, 
(d2) Conversation and deportment, § 378. 
(e2) Writings, § 386. 
(/2) Prior history, § 388. 
(g2) Nature of act, § 389. 
(a3) Its insensibility, § 389. 
(ft3) Its incongruity with antecedents, § 390. 
(c3) Its motivelessness, § 399. 
(a4) Motives rarely simple, § 401. 
(ft4) Passion as a motive, § 403. 
(c4) Lawlessness as a motive, § 404. 
(d3) Neglect to escape, § 406. 
(e3) Forgetfulness, § 410. 
C. From what mental unsoundness is to be distinguished, § 412. 
(a1) Emotions, § 412. 
(a2) Remorse, § 413. 
(ft2) Anger, § 418. 
3 MENTAL UNSOUNDNESS. 
[BOOK I. 
(c2) Shame, § 428. 
(d2) Grief, § 426. 
{e2) Homesickness, § 429. 
(/2) Fear, § 432. 
(51) Simulated insanity, § 443. 
(a2) Reasons for suspecting, § 445. 
{b2) Forms generally simulated, § 446. 
(c2) Not proved by sanity at trial, § 452. 
(cZ2) Tests, § 454. 
D. Mental unsoundness connected with derangement of the 
SENSES AND DISEASE, § 461. 
(a1) Deaf and dumb, § 461. 
(a2) Psychologically, § 461. 
{b2) Legally, § 464. 
(bl) Blind, § 469. 
(c>) Epileptics, § 470. 
E. Mental unsoundness as connected with sleep, § 482. 
(a1) Somnolentia or sleep-drunkenness, § 484. 
(bl) Somnambulism, § 492. 
F. Mental unsoundness as affecting the temperament, § 502. 
(a1) Depression, § 502. 
(Z>>) Hypochondria, § 508. 
(c1) Hysteria, § 517. 
(cZ1) Melancholia, § 523. 
G. Mental unsoundness as affecting the moral sense, § 531. 
(a1) General “moral insanity,” § 531. 
(a2) As to psychological possibility of separate insanity of moral 
function, § 533. 
{b2) As to whether such separate insanity exists, § 541. 
(a3) Authorities in the affirmative, § 541. 
(Z>3) Present weight of authority is negative, § 552. 
(&!) Special “moral monomanias,” § 567. 
(a2) At present repudiated, § 567. 
(br) Absurdity of classification, § 572. 
(c2) “ Homicidal mania," § 578. 
(cZ2) “ Kleptomania;,” (morbid propensity to steal,) § 590. 
{e2) “ Pyromania," {morbid incendiary propensity,) § 604. 
if2) “Erotomania,” {morbid sexual propensity,) § 617. 
(g2) “ Pseudonomania,” {morbid lying propensity,) § 626. 
(7t2) “ Oikeiomania,” {morbid state of domestic affections,) § 630. 
(Z2) “ Suicidal mania," § 636. 
(j2) “ Dipsomania," {morbid passion for drink,) § 639. 
4 BOOK I.] 
MENTAL UNSOUNDNESS. 
(k2) “ Fanatico-mania,'" % 644. 
(a3) Supernatural or pseudo-natural demoniacal possession. 
(a4) A priori improbability of such possession, § 644. 
(51) Solubility of the instances of such possession by natural 
tests. 
(a5) Disease, § 646. 
(ft5) Morbid imitative sympathy, § 647. 
(c5) Legerdemain and fraud, § 651. 
(d5) Mistake of senses, § 654. 
(e5) Guess work, § 656. 
(/5) Natural phenomena at present inexplicable, § 659. 
(c1) Historical evidence of such possession, § 660. 
(53) Religious insanity. 
(a4) Christianity, taken in its practical sense, has no ten- 
dency to produce insanity, § 662. 
(54) What is called religious insanity is produced 
(a5) By a departure from practical Christianity, § 669. 
(a6) Reliance on frames and emotions, § 669. 
(56) Appeal to unscriptural supernaturalism, § 670. 
(c6) Appeal to the selfish element, § 675. 
(55) By constitutional idiosyncrasies, ..§ 677. 
(c3) Fanatico-mania as a defence, § 678. 
(I2) “ Politico-mania,” § 679. 
H. Mental unsoundness as connected with prostration, § 682. 
(a1) Idiocy, § 682. 
(&') Imbecility, § 691. 
(c1) Dementia, § 698. 
I. Mental unsoundness accompanied with delirium, § 702. 
(a1) General delirium, § 702. 
(b') Partial delirium, § 706. 
(a2) Mania or amentia occulta, § 706. 
(62) Mania transitoria, § 710. 
J. Mental unsoundness as connected wiTn delusions and halluci- 
nations, § 723. 
K. Mental unsoundness as connected with lucid intervals, § 744. 
CHAPTER III. 
TREATMENT OF INSANE CRIMINALS. 
A. Retribution, § 754. 
B. Prevention, § 763. 
C. Example, § 765. 
D. Reform, § 766. 
E. Why our present system should be remodelled, § 770. 
5 MENTAL UNSOUNDNESS. 
[book I. 
CHAPTER IV 
A. Prior to crime, § 773. ' 
(«') Preparations, § 773. 
(&’) Intimations, § 775. 
(c1) Overacting, § 781. 
B. At crime. 
(a1) Incoherence, § 782. 
(6]) SELF-OVERREACniNG, § 786. 
C. After crime. 
(a1) Convulsive confession, § 788. 
(b1) Nervous tremor, § 805. 
(c1) Morbid propensity to recur to scene and topic of guilt, 
§812. 
(d1) Permanent mental wretchedness, § 816. 
(e1) Animosity between confederates, § 823. 
PSYCHICAL INDICATIONS OF CRIME. 
APPENDIX. 
MEDICO-JURIDICAL OPINIONS. 
Prom Liman’s Casper’s Gerichtliche Medicin, Berlin, 1871. 
I. Homicidal attempt, “ Fanatico mania ?” § 833. 
II. Fraud, “ Insane delusions,” Simulation, § 834. 
III. Larceny, Simulated imbecility, § 835. 
IV. Larceny, Simulated mania, Tests, § 836. 
Y. Attempted infanticide, Hystero-epilepsy, Melancholia, § 837. 
YI. Larceny, Initial stage of paralysis, § 838. 
VII. Killing of child, Melancholia, § 839. 
VIII. Homicide, “ Mania transitoria ?” Intoxication, § 840. 
IX. Business capacity, Intermission, § 841. 
X. Homicidal attempt, Insane delusion, § 842. 
XI. “ Kleptomania ?” By an educated man, § 843. 
XII. “Kleptomania?” By a cultivated woman, § 844. 
6 BOOK I.] 
CONTRACTS GENERALLY. 
[§2 
CHAPTER I. 
mental UNSOUNDNESS IN ITS LEGAL RELATIONS. 
A. What degree of mental unsoundness invalidates a con- 
TRACT OR WILL. 
(al) Imbecility. 
§ 1. With regard to lunatics or idiots, in the popular sense, 
there can be no question in this connection. Their incapacity 
is patent. No one can deal with them without having notice, 
and without at once seeing that they are irresponsible. In 
most instances, they are accepted by the State as its wards; 
and if not placed in confinement, are pronounced' by a com- 
mission of lunacy incapable of transferring property. Nor 
to invalidate their acts is it necessary that a decree of lunacy 
should have been actually pronounced. The madman, even 
though his madness be a mere temporary delirium, cannot, by 
an executory contract, bind himself either in person or in pro- 
perty ; and consequently in such a class of cases the judgment 
of the law must relieve him from responsibility. In this 
.respect the test is the same in the criminal and the civil courts. 
There are, however, a large class of cases in which, as has been 
noticed, a contract or a will will be declared void, but in which 
there is a sufficient degree of intellect to create a responsibility 
for crime. These will now be discussed. 
(a2) Contracts generally. 
§ 2. A person, to entitle him to make a valid contract, must 
know what the act is to which the contract relates, and must 
intelligently will to do such act. Thus, in an action of eject- 
ment in Maine, the plaintiff alleged that the deed to the 
defendant was invalid, because, at the time of making it, the 
grantor was non compos mentis. On this point the judge 
charged the jury as follows: “The grantor must be of sound 
mind and have legal competency. No degree of physical or 
mental imbecility can avoid his deed if he had legal com- 
7 § 5] 
[BOOK I. 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
petency. Legal competency to act, is the possession of mental 
capacity sufficient to transact business with intelligence and 
an intelligent understanding of what he was doing.” The 
jury found for the defendant, and the case came up before the 
Supreme Court on exceptions to the rulings of the judge. 
The Supreme Court held the above instructions to the jury to 
be correct.(u) So where a sale of property is sought to be set 
aside on the ground of mental incapacity to transact business, 
there must be that degree of derangement or state of imbe- 
cility of mind, that induces the belief that the party is incapable 
of fully comprehending the effect and consequences of his acts, 
or, at least, that he is so weak as to be almost a mere instru- 
ment in the hands of the person seeking to obtain the advan- 
tage. On the contrary, if a person is capable of reasoning 
correctly on the ordinary affairs of life, or is capable of con- 
templating and understanding the consequences which usually 
accompany ordinary acts, he will be held compos mentis and be 
bound by his acts, (b) 
§ 3. Where by collateral facts it appears that a person was 
aware of the nature and consequences of a transaction, it will 
be sufficient to rebut the presumption arising from mental 
weakness, or from general want of business capacity.(c) 
§ 4. Insanity intervening subsequent to the making of a 
contract is no bar to its execution.(<i) So it has been even • 
said that contracts of a person of unsound mind, made before 
an inquisition of lunacy, are valid, where no undue influence 
appears, (e) 
§ 5. Nor do delusions or hallucinations avoid capacity if not 
touching the subject matter of a contract. Thus, in a late 
(1870) trial in Maine, the main question was, whether a certain 
release of an action was valid. The plaintiff in his replication 
alleged that the person making it “was not of sound mind 
(a) Hovey v. Chase, 52 Me. 805. 
(5) Baldwin v. Dunton, 40 111. 188. 
(c) Clearwater v. Kimber et al., 43 111. 272 ; Hovey ®. Chase, 52 Me. 304. 
Cd) La Rue v. Gilkeson, 4 Barr, 375 ; Beals v. See, 10 Barr, 60 ; Parker v. 
Davis, 8 Jones, N. C. 466 ; Yates v. Boen, 2 Str. 1104 ; Baxter v. Portsmouth, 
5 B. & C. 171 ; Affleck®. Affleck, 3 Sm. & G. 394. 
(«) Sims v. McLure, 8 Rich. Eq. 286. 
8 BOOK I.] 
CONTRACTS GENERALLY. 
[§ 8 
nor legally competent to execute the same.” Every man, it 
was admitted, is presumed tb be sane, hut it was also conceded 
that if insanity is once proved, it is presumed to continue. 
But there is no such presumption of law, it was held, as to the 
continuance of a temporary hallucination or delusion arising 
from disease. And Appleton, C. J., said: “Hallucination is 
not per se insanity. It does not necessarily avoid a contract. 
It may exist as to matters in no way affecting the capacity to 
contract.” “ But when it has become permanent, it is deemed 
insanity, general or particular, according to the nature of the 
delusion under which the person labors.” It was further ruled 
that a person claiming to avoid a contract by reason of a 
hallucination, must show its existence at the time of making 
the contract, and that the hallucination was of a character 
affecting his capacity to make the contract sought to be 
avoided.(/) 
§ 6. So again has it been ruled that the evidence must show 
the degree in which the mind is impaired to be inconsistent 
with the rational transaction of business, so that in order to 
made a deed ineffectual, where there is no insane delusion, 
you must show the party did not have possession of his rea- 
son, so as to understand the effect of the act he was about 
to perform ;(g) and, generally, neither illiterateness,(A) nor 
intellectual inferiority alone, is ground for setting aside a con- 
tract. O') 
§ 7. When, however, an obligor is incapable of forming any 
rational judgment as to an act (as in a case where a grantor 
insanely thought that she and her grantees were on the eve 
of perishing), the obligation is void.(J) 
§ 8. An important distinction, however, is to be noticed in 
this respect. While on the one hand the courts will not lend 
their aid to execute or carry into effect a contract entered into 
(/) Staples v. Wellington, 58 Me. 453 ; Emery v. Hoyt, 46 111. 258. 
(g) Dennett v. Dennett, 44 New Hampshire, 531. 
(7j) Rodman v. Lilley, 1 Saxt. Ch. 320. 
(i) Mann v. Betterby, 21 Yerm. 326; Farnam v. Brooks, 9 Pick. 220 ; 
1 Hilliard on Cont. 309. 
(j) Bond v. Bond, 7 Allen, 1; see Lincoln v. Buckmaster, 32 Yerm. 652, 
where the question is ably discussed by Judge Redfield. 
9 §9] 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
[book 1. 
by an incapable person, known to be such, unless, perhaps, for 
necessaries,(/c) where the fact of incapacity was known to the 
creditor; yet such is not the law when the incapacity was un- 
known, and no advantage has been taken, particularly when 
the contract has been in part executed.(7) “ Where a person,” 
says Pollock, C. B.,(m) “apparently of sound mind, and not 
known to be otherwise, enters into a contract for the purchase 
of property, which is fair and bond fide, and which is exe- 
cuted and completed, and the property, the subject matter of 
the contract, has been paid for and fully enjoyed, and cannot 
be destroyed, so as to put the parties in statu quo, such contract 
cannot afterwards be set aside, either by the alleged lunatic, 
or those who represent him.”(n) It is true that the leaning of 
American authority was for some time towards the position 
that the contracts of a lunatic, executed or unexecuted, Avere 
;per se void, unless for necessaries ;(o) but more recently the 
justice of the exceptions already noticed has been recognized.(p) 
Hotliing, however, but a strong case of fairness, innocence, 
and fulness of consideration, can validate a deed Avhen the 
grantor is insane. (<7) 
§ 9. An executed contract made with a lunatic, Avho aagis at 
the time of contract apparently sane, and where there was no 
notice of insanity to the other party, will not be rescinded, un- 
less in so doing the parties can be placed in statu quo.(r) Thus, 
on an action by an attorney for work done for a defendant 
(k) Chitty on Contracts, 112 ; Story on Contracts, § 27; Addison on Con- 
tracts, 873 ; Skidmore®. Bomaine, 2 Bradf. (N. Y.) 122. 
(Z) Molton ®. Camroux, 4 Exch. 17; S. C., 2 Excli. B. 49. See supra, § 2. 
(m) 2 Exch. 503. 
(») See also Beavan v. McDowell, 24 English B. 486 ; 9 Wells, H. and G.309. 
(o) La Bue ®. Gilkeson, 4 Barr, 375 ; Mitchell v. Kingman, 5 Pick. 431 ; 
Bice®. Peet, 13 Johns. 543 ; Grant ®. Thompson, 4 Connect. 103; Long ®. 
Wliidden, 2 N. H. 435; Fitzgerald ®. Beed, 9 Sm. & Mar. ; Ceaver ®. Phelps, 
11 Pick. 304. 
(p) Beals ®. See, 10 Barr, 56. 
(q) Desilver’s Est., 5 Bawle, 11; Bonsall ®. Chancellor, 5 Wharton B. 37. 
(r) Kendall ®. May, 10 Allen, 59; Northington, ex parte, 37 Ala. 496 ; 
Beller ®. Jones, 22 Ark. 92; Henry ®. Fine, 23 Ark. 417 ; Carr ®. Holliday, 
5 Ired. Eq. 167; Beavan ®. McDonnell, 10 Exch. 184; S. C., 24 Eng. Law and 
Eq. 484; Molton ®. Camroux, 12 Jur. 800 ; S. C., 2 Exch. 487; 4 Exch. 17. 
See Elliott ®. Inee, 7 De G. M. & G. 475. 
10 BOOK I.] 
CONTRACTS GENERALLY. 
[§ 11 
who pleaded lunacy, it was held that this was no defence 
unless the plaintiff knew of such lunacy at the time of the 
work; and it appearing that the defendant had been placed 
in an asylum while he suffered under delirium tremens, and 
was mad when under the influence of drink, hut that the 
plaintiff did not do business with him at these times, it was 
held that it was for the jury to determine whether the plain- 
tiff at the times when they did business together, knew of the 
defendant’s incompetency.(s) 
§ 10. Fraud, however, or imposition, when practised upon 
imbecility, forms a sufficient ground for a court of equity to 
set aside a contract thus And in Maine the Su- 
preme Court has gone so far as to rule that the deeds of insane 
persons, not under guardianship, are voidablp, and if they 
have not been ratified or affirmed, their heirs may avoid them; 
and that this right is an absolute and paramount one, superior 
to all equities of other persons, and may be exercised not only 
as against an immediate grantee, but also as against subse- 
quent bond fide purchasers for value and without notice.(if) 
§ 11. In support of the position that it will require strong 
evidence of mental unsoundness to annul an executed contract, 
several additional recent (1872) cases may be adduced. Thus, 
in Illinois, on a bill filed in equity to set aside a deed convey- 
ing certain real estate on the ground of mental incapacity, 
Breese, J., said that mere mental weakness will not authorize 
a court of equity to set aside an executed contract, if such 
weakness does not amount to inability to comprehend the con- 
tract, and is unaccompanied by evidence of imposition or 
undue And in Indiana, in 1865, it was ruled that 
the deed of a person of unsound mind conveys a seizin to the 
grantee, such deed being voidable only, and not void. It may 
be avoided by the grantor himself, or his legal representatives, 
though the estate may have passed into the hands of a bond 
(s) Moss v. Tribe, 3 F. & F. 297. 
(<) Rhodes v. Bate, 1 Law Rep. Cli. (1866) 252 ; Seeley v. Price, 14 Mich. 
541; Garrow v. Brown, 1 Wins. (N. C.) No. 2, Eq. 46; Taylor v. Patrick, 
1 Bibb, 168 ; Rutherford v. Ruff, 4 Dessaus. 350. 
(w) Hovey v. Hobson, 53 Me. 451. 
(«) Miller v. Craig, 36 111. 109. 
11 §13] 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
[BOOK I. 
Me purchaser for a valuable consideration. Mere weakness of 
mind is not, in such case, to be held idiocy- or insanity, nor 
does it amount to unsoundness of mind, within the meaning 
of the law, and such weakness is not enough of itself to 
avoid a deed. Imbecility of mind is not sufficient to set 
aside a contract, where there is not an essential privation of 
the reasoning faculties, or an incapacity of understanding and 
acting with discretion in the ordinary affairs of life. The 
law cannot undertake to measure the validity of contracts by 
the greater or less strength of the understanding; and if the 
party be compos mentis, the mere weakness of his mental 
powers does not incapacitate him.(w) 
§ 12. So, in a case in Vermont, in 1860, where it was at- 
tempted to invalidate a contract by introducing evidence tend- 
ing to prove that one of the contracting parties, since deceased, 
was nearly seventy-seven years old at the time of the making 
of the contract and of her decease; that she had been for 
several years previous in feeble health, that her mind was 
somewhat impaired, and she was in this condition when the 
contract was made. Evidence was introduced to contradict 
this, by the testimony of witnesses who had conversed with 
the old lady about familiar scenes of early life, that she ap- 
peared to converse well and in a connected manner, and in the 
witnesses’ opinion she had sufficient mental capacity to con- 
tract, although the witnesses so testifying had not conversed 
with her on business matters. It was held that the contract 
would not be disturbed, and that evidence of the opinion of 
the witnesses as to her mental condition was rightly ad- 
So, insanity by a mortgagor at the date of a 
mortgage will not annul the mortgagee’s right to a decree of 
foreclosure, unless the latter knew of the mortgagor’s insanity, 
and took advantage of it.(y) 
§ 13. A finding by a competent court of the fact of lunacy, 
and the placing of such lunatic under the charge of a com- 
mittee or guardian, has been ruled in Hew York to be conclu- 
(w) Somers v. Pumphrey, 24 Ind. 231; Elliott, C. J. 
(*) Cram, Adm., v. Cram, 33 Yerm. 15. 
(y) Campbell v. Hooper, 3 Sm. & G. 153; 3 Eq. R. 727. 
12 BOOK I.] 
CONTRACTS OF MARRIAGE. 
[§ 17 
sive proof of lunacy, so as to avoid subsequent contracts ;(z) 
though this, in case of contracts for necessaries and of other 
fair contracts, may be well denied, and the findings treated as 
only presumptive evidence of insanity, of which the jury is 
to judge.(a) 
§ 14. A lunatic is liable in tort for personal injuries.(6) 
§ 15. Where a contract was made with a shipowner, and 
the insanity of the master prevented a complete performance 
of the same: this has been said not to be a sufficient excuse 
for the failure to perform.(c) 
(b2) Contracts of marriage. 
§ 16. The same degree of soundness of mind is as requisite to 
enter into a contract of matrimony as to make any valid con- 
tract, deed, or will.(cT) A marriage, therefore, by a lunatic, is 
void.(e) But where a man married while insane, it was held 
that his wife surviving him was entitled to a distributive 
share of his estate; although the marriage itself was void, it 
remained a marriage in fact.(/) 
§ 17. Yet, in marriage, as in all other contracts, fraud or 
compulsion, when brought to bear on a person of weak mind, 
will work an avoidance which, without such fraud or com- 
pulsion, would not have been decreed. 
Of this an illustration may be found in Lord Ports- 
mouth’s case, which has been too often erroneously supposed 
by medical writers to sustain the position, that mere mental 
(s) Fitzbugb v. Wilcox, 12 Barb. 235 ; Wadsworth v. Sherman, 14 Barb. 
169. See Donald v. Morton, 1 Mass. 543 ; Leonard v. Leonard, 14 Pick. 280. 
Infra, § 270. 
(а) See Gangwere’s Est., 14 Penn. St. 417 ; Sawyer v. Lufkin, 56 Me. 308; 
Sergeson v. Sealey, 2 Atk. 412; Faulder v. Silk, 3 Camp. 120. Hart v. 
Deamer, 6 Wend. 497; Lovatt v. Tribe, 3 F. & F. 9 ; Elliott v. Ince, 7 De G. 
M. & G. 476 ; Portsmouth v. Portsmouth, 7 D. & R. 614; Stedman v. Hart, 
1 Kay, 607 ; Read v. Legard, 9 Exch. 637; Wood, in re, 1 De G. T. & S. 465. 
See infra, § 270. 
(б) Morse v. Crawford, 19 Vt. 499. As to drunkenness as a defence to 
torts, see infra, §§ 65-75. 
(c) Higginson v. Weld et al., 14 Gray, 165. 
(d) Atkinson v. Medford, 46 Me. 510. 
(<?) Wh. Con. of Laws, § 142; Bishop on Mar. and Div., Ch. VIII. 
(/) Wiser v. Lockwood, 42 Vt. 720. 
13 §17] 
[BOOK I. 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
debility is enough, by itself, to avoid even the most solemn 
contract. Lord Portsmouth was married for the second time 
in March, 1813, to a young woman who was the daughter of 
one of his trustees, the solicitor of the family, under whose 
charge he was at the time living. From earliest childhood he 
had displayed great weakness, both moral and mental, being 
cruel, timid, and fickle in his management of his household, 
and exceedingly capricious in his tastes. Upon his arrival at 
twenty-one, however, his incapacity was such, as to induce his 
family to take steps to put him under the charge of a com- 
mittee, and at their instance he joined with his father in 
suffering common recoveries, and making a new settlement of 
the estate. It was not disputed that he mixed in society 
generally, corresponded with his friends, and settled his own 
accounts with his steward. Ilis first marriage was in 1799, 
and took place under a family arrangement, with a lady several 
years older than himself, who it was understood took a general 
supervision of his affairs. In the settlement made at that 
marriage the father of his second wife was one of the trustees. 
The first wife died in November, 1813, and in February, 1814, 
Lord Portsmouth went down to London with his medical 
attendant, and being left in his trustee’s hands, a week after- 
wards contracted a second marriage to the trustee’s daughter. 
In 1823, not until after the birth of a child, which took 
place in 1822, a commission was issued to inquire into his 
lunacy, the result of which, after a long contest, was a finding 
that he was of unsound mind, and had been so since January, 
1809. The committee appointed under this procedure imme- 
diately filed a petition in the Ecclesiastical Court to annul the 
second marriage. Sir John Nicholl, in deciding the case, 
said: “ That considerable weakness of mind, circumvented by 
proportionate fraud, will vitiate the fact of marriage, whether 
the fraud is practised on his ward by a party who stands in 
the relation of a guardian, as in the case of Harford against 
Morris,{g) which was decided principally on the ground of 
fraud; or whether it is effected by a trustee, procuring the 
solemnization of the marriage of his own daughter with a 
(g) 2 Hag. Cons. R. 423. 
14 BOOK I.] 
CONTRACTS OF MARRIAGE. 
[§ 17 
person of very weak mind, over whom he has acquired great 
ascendency. A person incapable from weakness of detecting 
the fraud, and of resisting the ascendency practised in obtain- 
ing his consent to the contract, can hardly he considered as 
binding himself in point of law by such an act. At all events, 
the circumstances preceding and attending the marriage itself 
may materially tend to show that the contracting party was 
of unsound mind, and was so considered and treated by the 
parties engaged in fraudulently effecting the marriage. In 
respect to Lord Portsmouth’s unsoundness of mind, the case 
set up is of a mixed nature, not absolute idiocy, but weakness 
of understanding; not continued insanity, but delusions and 
irrationality on particular subjects. Absolute idiocy, or con- 
stant insanity, would have carried with them their own secu- 
rity ; for in either case, the forms preceding, and the ceremony 
itself, could not have been gone through without exposure and 
detection; but here a mixture of both, by no means uncom- 
mon, is set up—considerable natural weakness, growing at 
length from being left to itself and uncontrolled, into prac- 
tices so irrational and unnatural as in some instances to he 
bordering on idiocy, and in others to be attended with actual 
delusion—a perversion of mind—a deranged imagination—a 
fancy and belief of the existence of things which no rational 
being, no person possessed of his powers of reason and judg- 
ment, could possibly believe to exist. * * * It appeared that 
February, 1814, Lord Portsmouth was brought to London by 
his medical attendant, and delivered up to his trustees, Han- 
son being one, and then in town—that day week he was mar- 
ried to the daughter of Mr. Ilanson. The confidential solicitor 
of the family, one of the trustees, who had a great ascendency 
over him, who owed him every possible protection, married 
him to one of his daughters! It is unnecessary to state the 
jealousy with which the law looks at all transactions between 
parties standing in these relations to each other. The whole 
transaction will bear but one interpretation: every part of it 
is the act of the Hansons! Lord Portsmouth is a mere in- 
strument in their hands, to go through with the necessary 
forms; the settlement is begun in forty-eight hours after 
Lord Portsmouth’s arrival in London! The contents of that 
15 §17] 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
[BOOK I. 
settlement; the mode in which it was prepared; the conceal- 
ment of the whole from the friends and the other trustees 
who were in town, some in the same house with Lord Ports- 
mouth, all these particulars bear the same character. The 
necessary forms are gone through with, but in support of these 
mere forms, not a witness is produced to show that this noble- 
man was conducting himself as a man understanding what 
he was doing, or capable of judging, or acting as a free and 
intelligent agent; nothing tending to show he was a person 
of sound mind; nothing in his conduct inconsistent with 
unsoundness of mind: every circumstance conspires to prove 
that he was the mere puppet of the Hanson family, and that 
the celebration of this marriage was brought about by a con- 
spiracy among them to circumvent Lord Portsmouth, over 
whom they, and particularly the father, had a complete ascen- 
dency, so as to destroy all free agency and rational consent on 
his part to this marriage. A marriage so had wants the 
essential ingredient to make the contract valid—the consent 
of a free and rational agent. The marriage itself, and the 
circumstances immediately connected with it, do not tend to 
establish restored sanity; it was neither‘a rational act’nor 
was it ‘ rationally done’—the whole ‘ sounds to folly’ and nega- 
tives sanity of mind. The Hansons, in the mode of planning 
and conducting the transaction, show that they treated and 
considered Lord Portsmouth as a person of unsound mind, and 
Lord Portsmouth, in submitting and acquiescing, and not 
resisting, confirms his own incompetency. Even if no actual 
unsoundness of mind, strictly so called—if no insane derange- 
ment—existed, if only weakness of mind (and all admit that 
he was weak), yet, considering the passiveness and timidity of 
his character on the one hand, the influence and relation of 
Hanson, his trustee, on the other, and the clandestinity and 
other marks of fraud which accompanied the whole transac- 
tion, I am by no means prepared to say, that, without actual 
derangement in the strict sense, the marriage would not be 
invalid; but in my judgment Lord Portsmouth was of un- 
sound mind, as well as circumvented by fraud.”(A) 
16 
(h) Portsmouth v. Portsmouth, 1 Hag. Ec. R. 355. BOOK I.] 
WILLS, 
! [§ 20 
§ 18. Adultery by an insane person is not a cause for 
divorce. There is wanting the consenting will. If the adul- 
tery were committed by force or fraud it would form no ground 
for divorce, and insanity is even more an excuse.(z) 
(c2) Wills. 
§ 19. “ Less mind,” so it is declared by the Supreme Court 
of “is ordinarily requisite to make a will, than a 
contract of sale, understandingly, for the reason that in con- 
tracts of sale there are usually two parties, and some degree of 
antagonism betwmen their interests and efforts; so that here 
mind is opposed to mind, and consequently it is somewhat 
more difficult to see clearly the just bearing of all the relations 
presented, than under the common circumstances of making a 
will, where one is left free to act upon his own perceptions 
merely.” 
§ 20. “A testator,” said Judge Washington,(A*) in a charge 
which Dr. Ray adopts as marked by “good sense and regard 
for scientific truth,” “ may not have sufficient strength of 
memory and vigor of intellect to make and to digest all the 
parts of a contract, and yet be competent to direct the distri- 
bution of his property by will.” And again :(7) “A man may 
be capable of making a will, and yet incapable of making a con- 
tract.” So the testator, in the language of the same judge,(m) 
“ must have a sound mind and memory. * * * It is not neces- 
sary that he should view his will with the eye of a lawyer, 
and comprehend its provisions in their legal form. It is 
sufficient, if he has such a mind and memory as will enable 
him to understand the elements of which it is composed—the 
disposition of his property in its simplest forms.” So Chief 
Justice Kirkpatrick, of Kew Jersey, in an opinion given in 
1819,(n) when commenting on the same expressions, said: 
“By these terms it has not been understood' that a testator 
(«) Nicliols v. Nichols, 31 Vt. 331. 
(j) Converse v. Converse, 21 Vt. 168. 
(Jc) Stevens v. Vancleve, 4 Wash. C. C. 262 ; infra, § 30. 
(?) Harrison v. Rowan, 3 Wash. C. C. 580. 
(to) Ibid. 585. 
(n) Den v. Vancleve, 2 Southard, 589. 
VOL. I.—2 
17 § 22] 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
[BOOK I. 
must possess these qualities of the mind, in the highest degree, 
otherwise very few could make testaments at all; neither has 
it been understood, that he must possess them in as great a 
degree as he may formerly have done; for even this would 
disable most men in the decline of life; the mind may have 
been, in some degree, debilitated, the memory may have 
become, in some degree, enfeebled, and yet there may be 
enough left clearly to discern and discreetly to judge of all 
those things and all those circumstances which enter into the 
nature of a rational, fair, and just testament; but if they have 
so far failed as that those cannot be discerned and judged of, 
then he cannot be said to be of sound and disposing mind and 
memory.” 
§ 21. Chief Justice Cockburn, in Banks v. Goodfellow,(o) 
already referred to, touches this very distinction, prior to 
quoting the cases just mentioned. “It maybe here not unim- 
portant to advert to the law relating to unsoundness of mind 
arising from another cause—namely, from want of intelligence 
occasioned by defective organization or by supervening physical 
infirmity, or the decay of advancing age, as distinguished from, 
mental derangement, such defect of intelligence being equally 
a cause of incapacity. In those cases it is admitted on all 
hands, that, though the mental power may be reduced below 
the ordinary standard, yet, if there be sufficient intelligence to 
understand and appreciate the testamentary act in its different 
bearings, the power to make a will remains.” 
There must, it has even been ruled, be “ a total want of 
understanding to render one intestable.”(p) 
“Neither peculiarity of character, weakness of understand- 
ing, or want of capacity to transact the ordinary affairs of life, 
will disqualify one to execute a will.”^) 
§ 22. A similar view was taken in Connecticut on (1867) 
(o) Law Rep. 5 Q. B. 567. 
(p) Blanchard v. Nestle, 3 Denio, 37 ; Elliot’s "Will, 2 J. J. Marshall, 340; 
Dornich v. Reichenback, 10 S. & R. 84; McMaster v. Blair, 29 Penn. St. 298 ; 
Andress v. Weller, 2 Green Ch. 604; Butlin ». Berry, 1 Curt. 614; S. C., 2 
Moore P. C. 480 ; Horne v. Horne, 9 Iredell, 99 ; Converse v. Converse, 21 
Vt. 168. 
(q) 1 Redfield on Wills, ch. iv. § 15, citing Potts v. House, 6 Ga. 324; 
Stubbs v. Houston, 33 Ala. 555. 
18 BOOK I.] 
WILLS. 
[§ 24 
an appeal from the Probate Court approving of the will of 
William St. Leger. One of the reasons for the appeal filed by 
the appellants was, “ that St. Leger at the time of making 
the will was not of sound mind, and capable of making a 
valid disposition of his property by will.” 
In the Superior Court, the jury were instructed thus: “If 
the testator had sufficient intelligence and memory to fairly 
and rationally comprehend the effect of what he was doing, 
to appreciate his relations to the natural objects of his bounty, 
and understand the character and effect of the provisions of 
the will; that he should have a reasonable understanding of 
the nature of the property he wished to dispose of, and of the 
persons to whom and the manner in which he wished to dis- 
tribute it,” then he was of sound and disposing mind and 
memory. The Supreme Court held, on motion for a new trial, 
that this charge was unexceptionable.(r) 
§ 23. It should be remembered that in cases of this class, 
the question is not whether the party had a capacity to do the 
particular thing intelligently, but, as will presently be seen 
more fully, whether he had capacity and information enough 
to comprehend and disregard any attempt which may have 
been made to coerce or deceive him. Precedents and authority 
on this branch of law, consequently, must stand by themselves, 
and cannot be considered as applying to those sections of the 
present chapter, in which the subject of responsibility for 
criminal offences is considered. 
§ 24. Mr. Shelford’s views on this point are worthy of grave 
consideration. “ One person,” he says, “ seeing a testator in 
extreme age, or under extreme sickness, thinks that if he 
knows those about him, and can answer an ordinary question 
with respect to the state of his illness, or his wants, such 
and similar matters render him capable of giving effect to a 
disposition by will, however complicated it may be, by the 
mere formal execution of the instrument; while another 
person may be of opinion, that though a testator, in the ordi- 
nary management of his affairs, can hold reasonable conver- 
versation, can fully comprehend all the usual and simple 
(r) St. Leger’s Appeal from Probate, 34 Conn. 435. 
19 §25] 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
[book I. 
transactions of life, yet, if he is unable to take the active 
management of all his concerns, however involved those 
concerns may be, or if he is liable to become confused by 
entering into intricate transactions, he is totally incapable, 
and cannot enter into a testamentary disposition, however 
plain and simple it may be. Yow, when opinions are formed 
by such opposite standards, it is obvious much contrariety 
will occur. Sir John Yicholl observed that experience in the 
Ecclesiastical Court teaches us, that evidence upon questions 
of capacity is almost always contradictory, such evidence being 
commonly that of opinion merely; and this contrariety pro- 
ceeds from the obvious grounds, that, of the witnesses, no two, 
possibly, have seen the party whose estate is deposed to, at 
precisely the same circumstances ; and that each, again, of the 
several witnesses, no matter how numerous, measures, possibly, 
testamentary capacity by his own particular standard. These 
sources of discrepancy, and many more might be enumerated, 
are common to all cases of this description. There is an 
additional source, when the transaction of which they have to 
speak is remote, a circumstance sufficient in itself to account for 
no inconsiderable degree of contrariety of evidence, even where 
the witnesses have to speak of facts merely, and not of opinions 
formed and inferences built upon facts, of which most of the 
evidence furnished upon questions of capacity is commonly 
made up. If the court, therefore, on questions of capacity, is 
accustomed to rely but little upon such evidence, so far as it 
is that of mere opinion, but to form its own judgment from 
the facts and the conduct of the parties at the time, it becomes 
it to do so, more peculiarly when much of the evidence not 
merely consists of opinions delivered long subsequently to the 
transactions which they profess to have suggested them, upon 
loose recollections, too, and after repeated discussions of the 
subject matter with interested parties.”(.?) 
§ 25. The lowest test of capacity was applied in a very much 
contested case in ]Srew York, which is cited at large by Dr. 
Beck, and which excited great interest from the immense 
property at stake, and the respectability of the parties. It 
(s) Slielfordon Lunacy, 277-8. See Ex parte Vanauken, 2 Stockt. (N. J.) 186. 
20 BOOK I.] 
[§ 27 
WILLS 
was there ruled—and for the facts it is not necessary to do 
more than refer to the pages of the report, or to Dr. Beck’s 
excellent summary—that where a female had been always 
under the control of her friends, had never attempted to 
transact business, and manifested intellect and understanding 
only to a very low degree, a will executed by her in favor of a 
relative with whom she had spent the latter portion of her 
life, which was in accordance with intentions previously 
expressed by her, which was reasonable in itself, and the object 
of which she understood, was valid, though it did not appear 
that she had given previous instruction for the draft of the 
will.(0 The authority of the case, it is true, is greatly 
weakened by the fact that it was decided by a vote of 12 to 6 
of the Court of Errors of New York, which, under the con- 
stitution then in force, was the Senate of the State, and being 
chiefly a lay court, never possessed high professional authority, 
and which in the present instance reversed a decision to the 
contrary of the Chancellor. Without regarding this case, 
therefore, as of great weight, so far as the authority of the 
senators who concurred with the majority are concerned, it 
may nevertheless be cited as a powerful illustration of the 
reluctance felt in both the professional and popular mind to 
overturn a will which in itself is in accordance with common 
sense and proper feeling. 
§ 26. In an action of ejectment in New York, the plaintiff 
alleged inter alia that a Mrs. Lynch, under whom the defendant 
claimed by devise, was incompetent to make a will. The Su- 
preme Court in 1859 decided that a testator is competent where 
he has mind and memory to understand the situation and value 
of the property, and the condition of those who on account of 
their relationship to him had claims upon his bounty. “In 
such case her will must stand for the reason of the act, and it 
is not sufficient to impeach her competency that the will is 
not in all respects as we should have expected from one in her 
situation. ”(w) 
§ 27. In the litigation concerning the will of Mr. Parish, 
(t) Stewart v. Lispenard, 26 Wend. 255 ; 2 Beck Med. J. 828. 
(w) Watson v. Donnelly, 28 Barbour, 653. 
21 § 28] 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
[book I. 
which came before the Supreme Court in 1857, on appeal from 
a decree of the Surrogate of the city and county of New 
York, admitting to probate the will and first codicil of the 
deceased, it appeared that the testator made his will in 1842; 
in 1849 he wrns suddenly struck with apoplexy, which was 
followed by permanent paralysis or hemiplegia on the right 
side, and by severe epileptic convulsions which continued till 
his death in 1856. During this period, he could neither speak 
nor write, nor use language in any shape or form for the 
expression of his mind. lie retained his voice, and could utter 
guttural and inarticulate sounds, but no language. He had 
his vision, and the full and vigorous use of his left arm, hand, 
and fingers, but he could not write. He did not use the 
dictionary for pointing to words, and when block-letters 
were placed before him, he brushed them aside. It was ad- 
mitted that these actions and his condition arose from a 
diseased state of the mind. While he was thus afflicted, he 
was claimed to have made three codicils to his will. These 
papers were drawn by the counsel for the family, and sug- 
gested by the wife, who took immense property under them. 
The testator’s hand in signing was guided by counsel. The 
Supreme Court overruled the decree of the Surrogate admit- 
ting the first codicil to probate, and sustained that court in 
rejecting the last two codicils.(V) 
§ 28. This decision was substantially affirmed by the Court 
of Appeals, by whom it was held that in law the only standard 
as to mental capacity in all who are not idiots or lunatics is, 
was the person compos mentis or non compos mentis. The ques- 
tion in all cases is: had the testator, as compos mentis, capacity 
to take unprompted an active view of his property and family, 
and to form a rational disposition of his affairs ?(w) 
(v) Parish v. Parish, 42 Barbour, 274. 
(w) Delafield v. Parish, 25 N. Y. 10. An able review of this case appears 
as an editorial in the Am. Journ. of Insanity for October, 1802 (vol. 19). 
From this review we extract the following :— 
The alleged loss of understanding on the part of Mr. Parish was, as 
usual, dependent upon physical disease. He had threatening of cerebral dis- 
turbance for several years before his attack of apoplexy and paralysis in 1849, 
22 BOOK I.] 
WILLS. 
[§ 29 
§ 29. In a feigned issue in Pennsylvania upon a precept 
from the Register’s Office, to try certain disputed facts relating 
and had hereditary tendency to disorders of that nature. The shock of this 
final attack rendered him insensible and convulsed for several hours. 
It was soon discovered that his right side was paralyzed. His physician 
characterized the seizure as “hemiplegia” leading to “ defect of motion, not 
of sensation,” and implicating “ the right arm and the right leg, and also the 
organs of speech.” He subsequently acquired a slight control over the right 
leg, but the arm, which improved somewhat for the first six months im- 
mediately succeeding the attack, afterwards entirely lost its power. The left 
arm and leg were not permanently affected by paralysis. 
It is stated that Mr. Parish recovered, in a considerable degree, his strength 
after the first shock, and that during the remaining seven years of his life he 
enjoyed good, but not uninterrupted, health. He suffered from a severe and 
painful disease of the bowels in October, 1849 ; subsequently, he had a 
number of attacks, “ distinct from the general disease, but the most frequent 
dependent upon its cause, or, in other words, dependent upon the condition 
of the brain which led to the disease.” 
“He had one or more severe attacks of cholera morbus, one or more of 
inflammation of the lungs, an abscess formed at one time under the jaw, 
which became so large as to threaten suffocation, and there were several 
minor attacks from time to time.” 
In addition to these disorders, ever after his apoplectic attack, Mr. Parish 
was subject, at regular intervals, to spasms or convulsions, the intervals ex- 
tending from one or two weeks to six months, and even a year. Their approach 
was preceded by despondency and irritability on the part of the paralytic, and 
after the convulsion had passed off, he was generally better and brighter than 
he had seemed before. The convulsions are described as commonly coming 
on suddenly with a noise in the throat, resembling a shriek or scream, a 
violent reddening of the face, and a convulsion of the whole body—the muscles 
becoming alternately rigid and relaxed. Some of these paroxysms were so 
violent as seriously to threaten a fatal result. It was the opinion of Mr. 
Parish’s attendant physician that these convulsions were “ connected with 
the condition of the brain left by the apoplectic attack.” The main feature 
of Mr. Parish’s final illness was congestion of the lungs, but it was a com- 
plicated disease depending also, in the opinion of his physicians, upon the 
condition of the brain. 
His power of speech was mainly abrogated on his first attack, and from 
that time to his death he was never able to utter anything except a few im- 
perfectly articulated monosyllables. These were principally “yes” and 
“no,” which he pronounced very imperfectly, and there is even great doubt 
whether he ever uttered them intelligibly. 
He expressed himself most frequently by the use of inarticulate sounds. 
These are described by the witnesses as sounds resembling the syllables, 
“yah, yah, yah,” “nyeh,” “nin, nin,” “yeah, yeah, yeah,” and others of 
a similar character. 
23 § 29] 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
[BOOK I. 
to a paper writing, purporting to be the will of one John 
Daniel, in the charge to the jury, a disposing mind and 
He accompanied these sounds by gestures and motions of the left hand and 
arm, and by nodding or shaking his head. The gestures usually consisted in 
his waving his hand in different directions with his fingers extended, putting 
his fingers in his mouth, or raising his hand and shaking it. The external 
senses, feeling, hearing, and smelling, do not appear to have been seriously 
affected. His eyesight was always more or less imperfect. 
He would occasionally look at books and papers, but the preponderating 
evidence was that he could not read at all. An attempt was made to induce 
him to write with his left hand, but after several trials with paper, slate, and 
blackboard, which, in one or two instances, resulted in his writing after a 
copy the first few letters of his name in very doubtful characters, the attempt 
was abandoned. 
Block-letters were procured, but he would not use them, and pushed them 
away. A dictionary was suggested, but whether the trial was ever made or 
not, he never adopted that method of communicating his ideas. It was the 
constant practice of Mr. Parish’s nurses, in accordance with his wife’s 
directions, to read the newspaper to him, but the proponents failed to prove 
that he ever manifested comprehension of what was thus communicated, or 
exhibited any intelligent interest in the reading. 
Subsequent to the attack he was never intrusted with the management of 
his own affairs, nor allowed to have money in his possession. He could not 
supply his own wants, and was washed, dressed, and attended at table like a 
child, and was even frequently unable to control his evacuations. 
His wishes, as might be expected, were not easily ascertained. He ex- 
pressed, by the inarticulate sounds and motions before referred to, that he 
desired something, and various suggestions would be made by those attending 
him until he expressed assent, though it often happened that it was utterly 
impossible to comprehend him, and the attempt would be abandoned by both 
parties. He would also assent to contradictory suggestions. 
Before his attack Mr. Parish is described by his relatives and acquaintances 
as a “placid and unexcitable man,” of great self-respect and with great com- 
mand of temper ; “his manners were mild, gentle, and unruffled a quiet, 
undemonstrative gentleman, rarely exhibiting any emotion, and deeply ab- 
sorbed in his commercial transactions. 
After his attack he manifested a marked change of disposition ; he occa- 
sionally shed tears ; and, in several instances, exhibited a want of appreci- 
ation of the requirements of decorum and even of decency. He had 
occasional unmeaning freaks and caprices, such as searching for his clothes 
in impossible places, going out to see the moon, and making excursions to 
the garret and the cellar, for no ascertained purpose ; and it sometimes 
became necessary to use physical force to prevent him from undertakings 
which threatened his personal safety. 
He exhibited some recollection of his former daily and familiar places of 
resort, and of his former habits of business, which he would attempt, in 
trifling matters, to resume, as, by pulling out his watch when he passed the 
24 [§29 
BOOK I.] 
WILLS, 
memory were described to be “one in which the testator is 
shown to have had, at the making and execution of his will, 
City Hall clock, or insisting, when driven out, upon being taken to the Bank 
of which he was once a Director, or to his old office, or to various tradesmen 
with whom he had been in the habit of dealing. In addition to these, the 
proponents, who contended that Mr. Parish’s intellect was never materially 
impaired, brought forward many particular instances in which it was claimed 
that he manifested undiminished intelligence. One or two of these may be 
mentioned. 
It was said by one witness : “ Having been riding out of the city, he would 
take his watch out of his pocket, look at it, turn round and look at me, when 
I would ask him if he wished to return, if it was late or about his usual drive ; 
he would say ‘ yes,’ and nod his head.” Elsewhere, the same witness says : 
“ I recollect, on one occasion, the dining-room clock was run down ; when 
he pointed at the clock, I perceived that it had stopped ; remarked to him 
that it had stopped, and I would wind it up, when he nodded his head.” 
An old acquaintance testified that he recalled to Mr. Parish a ridiculous cir- 
cumstance that had happened to them in company, many years before, and 
that Mr. Parish “gave him to understand” that he recollected the circum- 
stance, and laughed at it quite heartily. These instances, however, of which 
the above are specimens, were isolated, and taken together were not deemed 
of sufficient significance to avoid the conclusion derived from the facts before 
stated. 
In regard to the actual execution of the codicils, it seemed that the counsel 
employed to prepare them, read them to Mr. Parish in the presence of the 
subscribing witnesses, put to him the requisite formal questions, and received 
from him by sound and gesture, as usual, what were supposed to be affirm- 
ative replies. The counsel then assisted Mr. Parish by guiding his hand 
while he made his mark. At least this was the case at the execution of the 
first and second codicils ; there was no evidence whether or not he received 
assistance in making his mark at the execution of the third. 
Such were the main points of the case presented to the Court of Appeals. 
The opinion of the Court was delivered by Judge Davies, from which we 
quote the comments upon the facts which we have narrated, and the con- 
clusions in which the majority of the Court concurred. 
After adverting to the change in Mr. Parish’s disposition after his attack, 
Judge Davies says: “How diametrically opposite to the previous conduct of 
his whole life is that now exhibited. And the inquiry forces itself upon the 
mind, what cause has produced such results ? Can such totally inconsistent 
and opposite characters be reconciled with the theory that the faculties, the 
mind, and moral perceptions of Mr. Parish underwent no change, but were 
the same after July 19th, 1849, as they were before that day ? * * * * We 
confess ourselves totally unable to assent to any such theory. The conviction 
on our mind is clear that these facts and circumstances show unerringly 
that the attack of July 19th obliterated the mental powers, the moral per- 
ceptions, the refined and gentle susceptibilities, of Henry Parish ; that after 
25 § 29] 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
[BOOK I. 
a full and intelligent consciousness of the nature and effect of 
the act he was engaged in—a knowledge of the property he 
that period he ceased to be the mild, intelligent, and unruffled man he had 
been theretofore, and that thereafter he was not responsible for the unbecoming 
and ungentlemanly conduct he so frequently exhibited. He then ceased to 
be Henry Parish, and was no longer an accountable being.” Upon the point 
of Mr. Parish’s method of communicating his ideas, Judge Davies says: 
“With these imperfect media for ascertaining the thoughts of Mr. Parish, it 
is doing no injustice to anyone to assume that they have been mistaken M'hen 
they supposed that they correctly understood him. We more naturally and 
readily come to this result, because we find that all who had any intercourse 
with Mr. Parish, on many occasions, found great difficulty in understanding 
his wishes and thoughts, if they even understood them at all; and the 
instances are frequent and clearly established where he often made an affirma- 
tive and negative motion of his head, immediately succeeding each other, to 
the same question, leaving the inquirer in perplexity MThich he really intended. 
“All the testimony shows that he could only indicate with his fingers and 
hand, or by sounds, that he wanted something, or that something was the 
matter, and which motions or sounds were construed by those around him as 
evidences of his wish to put a question, whereupon they began to suggest 
various topics, and when they thought they perceived that they had hit upon 
the subject in his mind they supposed he Mushed to inquire about, they put 
such questions as suggested themselves to them, and to which they supposed 
they had received affirmative or negative answers. If Mr. Parish had no 
power to express a wish to destroy a will, it follows he had none to create 
one, and the manifestation of his M'ishes depended entirely upon the interpreter 
and the integrity of the interpretation. 
“ It is thus seen that great difficulty and uncertainty, to say the least of it, 
attended any expression of the thoughts or wishes of Mr. Parish, and that a 
large number of those having business or intercourse MTith him, utterly failed 
to attach or obtain any meaning to his signs, sounds, motions, or gestures. 
The natural and obvious deductions to he made from all these facts and cir- 
cumstances are, that Mr. Parish had no ideas to communicate, or, if he had 
any, that the means of doing so, with certainty and beyond all cavil and 
doubt, were denied to him.” 
After referring to the testator’s failure to communicate by Mrriting, or by 
the use of any artificial means, Judge Davies states the final conclusions, as 
follows:— 
“To what result does this review of the facts and circumstances in this 
case, adverted to and commented on, lead the mind ? On a careful con- 
sideration of them all, with a most anxious desire to arrive at a just and 
correct conclusion, W'e are clearly of the opinion that the attack of Mr. Parish 
on the 19tli July, 1849, extinguished his intellectual powers, so obliterated 
and blotted out his mental faculties, that after that period he Mras not a man 
of sound mind and memory within the meaning and language of the statute, 
and was therefore incompetent to make a will. ****** 
26 book I.] 
[§ 29 
WILLS 
possessed—an understanding of the disposition he wished to 
make of it by the will, and of the persons and objects he desired 
“It is not the duty of the court to strain after probate, and especially to 
seek to establish a posterior will, made in conceded enfeebled health, unsus- 
tained by previous declaration of intention, over a prior will, made in health, 
and with care and deliberation, when the provisions of the posterior will are 
in direct hostility to and conflict with those of the prior one. 
“It would be in violation of long and well-established principles, and an 
almost uniform and unbroken current of decision in England and in this 
country, to admit to probate testamentary papers, prepared and executed 
under the circumstances these were, by a man who was in apparent full phy- 
sical health, and possessing nearly his natural strength, who could not or 
would not write, who could not or would not speak, who could not or would 
not use the letters of the alphabet or even a dictionary, for the purpose of 
conveying his wishes, upon proof solely that they were supposed to express 
the testator’s wishes, from signs, gestures, and motions made by him, and 
especially when it appeared that such signs, gestures, and motions were often 
contradictory, uncertain, frequently misunderstood, and often not com- 
prehended at all.” 
Judge Davies states at length the three principles of law which he conceived 
to be applicable to the case. 
The first regards testamentary capacity, the second the burden of proof, 
the third the maxim, qui se scripsit liseredem. The chief interest and 
importance attaching to the decision, turn upon the discussion of the first of 
these—the doctrine of testamentary capacity. 
Up to the present time, the well-known case of Stewart v. Lispenard, 
decided in the Court of Errors in 1841 (26 Wend. 255), has been held to be 
of binding authority. The rule of testamentary capacity there adopted, was 
extremely rigorous, and the proposition was sustained that in passing upon 
the validity of a will, courts do not measure the understanding of the testator, 
but, if he have any at all, and be not an absolute idiot, totally deprived of 
reason, he is the lawful disposer of his own property, and his will stands as 
a reason for his actions. This doctrine is repudiated, or at least modified, in 
the Parish Will decision, and the Lispenard case expressly overruled. In the 
language of the opinion, derived from various high authorities, the testator 
must have “sufficient capacity to comprehend perfectly the condition of his 
property, his relations to the persons who were, or should, or might have 
been the objects of his bounty, and the scope and bearing of the provisions 
of his will. 
“He must have sufficient active memory to collect in his mind, without 
‘prompting, the particulars or elements of the business to be transacted, and 
to hold them in his mind a sufficient length of time to perceive at least their 
obvious relations to each other, and to be able to form some rational judgment 
in relation to them.” 
This is receding from an extreme and perhaps a dangerous position, hitherto 
27 §32] 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
[book 1. 
to participate in his bounty. It is not necessary he should 
collect all these in one view. If he understands in detail all 
he is about, and chooses with understanding and reason 
between one disposition and another, it is sufficient.” Judge 
"Woodward, in the Supreme Court of the State, in 1861, held 
this charge to be unexceptionable.^) 
§ 30. In a later case in the Supreme Court of the same 
State, in 1870, Thompson, C. J. said: “ Testamentary capacity 
is always presumed to exist until the contrary is proved. An 
abnormal condition of the mind is never presumed when a 
testator makes a will, unless a previous aberration be shown, 
of such a nature as may admit of a presumption of recurring 
unsoundness at any time.” “ Old age, failure of memory, or 
habitual drunkenness, will not 'per se constitute incapacity to 
make a will.” The test of capacity is, that the testator’s mind 
and memory should be sufficiently sound to enable him to 
know and understand the business in which he was engaged 
at the time he executed the will. As a general proposition, 
less capacity is sufficient to make a will than to transact 
ordinary business.”(y) 
§ 31. An understanding of the business about which the 
testator was engaged, of the kind and value of the property 
devised, and of the persons who were the natural objects of 
his bounty and of the manner in which he wished to dispose 
of his property, are all evidences, it has been ruled in Illinois, 
of the possession of testamentary capacity, unless the testator 
was affected with some morbid or insane delusion as to some 
one of those natural objects of his bounty.(2) 
§ 32. “Few questions,” said Judge Walker, of Illinois, in 
1862,(a) “present greater difficulties in their solution, than 
occupied by the court of last resort; and the establishment of a more rational 
doctrine. To hold, as a settled rule of law, that testamentary capacity exists 
where there is even “a glimmering of reason,” is scarcely in accordance 
with an enlightened system of jurisprudence, or even with the dictates of 
ordinary common sense. 
(x) Daniel v. Daniel, 39 Penn. 191. 
(y) Thompson v. Kyner, 65 Penn. 368 ; see supra, § 20. 
(z) Roe v. Taylor, 45 111. 485; see Brownfield v. Brownfield, 43 111. 147. 
(a) Lilly v. Waggoner, 27 111. 395. 
28 BOOK I.] 
WILLS. 
[§ 33 
this of insanity. But the law only regards it when it renders 
the subject non compos mentis, or that condition of the mental 
faculties exists which renders the subject incapable of acting 
rationally in the ordinary affairs of life. It is that degree of 
mental derangement which renders the person affected inca- 
pable of understanding the effect and consequences of his acts. 
It need'not be of that total derangement, or rather obliteration 
of the faculties which prevents the party from reasoning on 
all subjects. Hor yet the want of power at all times, upon 
correct premises, to arrive at accurate conclusions, but it is 
that want of power which prevents a person from reasoning 
or understanding the relation of cause and effect.” 
§ 33. The existence of idiocy, when that alone is set up, 
can be determined by comparatively simple tests. If the pre- 
tended idiot can be shown to have intelligently performed 
acts of business during the period in which idiocy is claimed 
to exist, the allegation of incompetency falls, unless fraud or 
constraint be shown. Thus in a case determined in Doctors’ 
Commons in March, 1852,(6) Dr. Lushington said, “Before 
entering upon this branch of the case, I must bear in mind 
what the nature of the case set up in opposition to the will is. 
I must repeat that it is not lunacy—it is not monomania—it 
is not any species of mental disorder, the symptoms of which 
it may, at periods, be difficult to detect; but the case presented 
is that of idiocy or imbecility, the characteristic of which is 
permanence, with little or no variation, though often, in case 
of idiots, it does sometimes happen that there will be a greater 
degree of excitement demonstrated than at other periods. 
IIow is such a case to be met? I apprehend, to meet it and 
to show that such a state of things did not exist at any given 
period, proof of acts of business are most important evidence. 
Many acts of business could possibly be done by a lunatic, and 
the lunacy not detected ; but it is scarcely possible to predicate 
the same of an idiot or lunatic, or an imbecile person. I 
shall look, therefore, in the first instance, to the acts of busi- 
ness. It is proved by Mr. Falkner, that the deceased kept an 
account with Messrs. Tuckwell, at Bath, for four years, from 
(6) Banatyne v. Banatyne, 16 Jur. 864, 14 English Law and Eq. R. 581. 
29 §34] 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
[book i. 
1818 to 1821, and during all that period, occasionally drew 
drafts, and all those drafts were paid to himself over the 
counter. According to the evidence, the deceased came him- 
self to the counter, and there is no proof of any one accom- 
panying him on such occasions; he asked for the sum he 
wanted; the clerk filled it in, he signed it, and took the 
money. Surely no idiot could have done this, for he must 
have exercised thought to go to the bank, memory and judg- 
ment as to the thing required; and moreover, his conduct and 
demeanor could not at such times have been as described by 
the witnesses against the will, or, from the glaring colors in 
which his imbecility is depicted, it must have been discovered, 
and the business never could have been transacted at all. * * * 
I consider these transactions, then, of first-rate importance 
towards solving all the difficulties of this case; for here, after 
the lapse of about thirty years, the court has the advantage 
of facts proved, with the dates duly affixed to them. There 
is, I must say, not the least evidence to show that in any one 
of these acts of business the deceased was assisted by any 
person whatever, the presumption is the other way; and to 
put these acts upon the very lowest basis on which they can 
be placed, they do utterly disprove idiocy or imbecility. I 
will simply repeat what I have already indeed said, that those 
who are afflicted with lunacy, sometimes have the manage- 
ment of and can manage their pecuniary affairs—an idiot, 
never.” 
(b1) Delusions. 
§ 34. Delusions, as viewed psychologically, will be considered 
at large in a subsequent chapter.(e) In their legal relations, 
so far as concerns testamentary capacity, they were the sub- 
ject of patient investigation by Sir J. P. Wilde (Lord Pen- 
zance), in the Court of Probate and Divorce, in 1867.(6?) A 
delusion is “ a belief of facts which no rational person would 
have believedso spoke Sir J. Mcoll; “ but who,” asks Sir J. 
P. Wilde, “is a ‘rational’ person? and does not the assumption 
(c) Infra, §§ 723-743. As to delusions as a criminal defence, see infra, § 125. 
(d) Smith v. Tebbitt, Law Rep., 1 Prob. and Div. 401. 
30 BOOK I.] 
DELUSIONS. 
[§ 85 
‘ rational’ beg the question at issue ?” “ The belief of things 
as realities which exist only in the imagination of the patient 
so said Lord Brougham in Waring v. Waring; but do not 
sane people imagine unrealities? “A pertinacious adherence 
to some delusive idea, in opposition to plain evidence of its 
falsity,” said Dr. Willis, as quoted by Sir J. Mcoll; “but are 
not sane people sometimes pertinacious in error? and who is 
to determine what evidence is ‘plain’?” Hence it is that Sir 
J. P. Wilde, arguing from the inadequacy of all definitions, 
concludes that “ delusions,” as insane delusions, are to be proved 
by insanity, not insanity by delusions. 
§ 35. In most of the American States, proof of insane delu- 
sions is insufficient to defeat a will, unless the will be the 
direct offspring of such insane delusions. Where the delusion 
thus operates, then the will is void.(e) “It appears to me,” 
says Mr. Justice Sergeant, in delivering an opinion of the 
Supreme Court of Pennsylvania in 1839,(/) “ that the only 
question in such a case is, whether the person was of sound 
memory and discretion, considering the act done in all its 
bearings, and judging of the soundness of the mind of the 
supposed testator by his conduct and declarations at the time, 
and as connected with his previous insanity, and the degree 
of restoration of mind in the interval; and that if the erro- 
neous and groundless impressions received during the time of 
his delirium shall retain their hold (whether by some phy- 
sical derangement of the brain, or by some indelible stamp on 
the thinking faculties), that person must be considered still 
under a delusion—the effect continues, and it is only by effects 
we can judge of the existences of the exciting cause—and if 
he is under a delusion, though there be but a partial insanity, 
yet if it be in relation to the act in question, it is well settled it will 
(<?) Cotton v. Ulmer, 45 Ala. (1871), 378 ; Johnson v. Moore, 1 Litt. (Ky.) 
371 ; James v. Langdon, 7B. Mon. 193 ; Gass v. Gass, 3 Hump. 278 ; Thomp- 
son v. Quimby, 2 Bradf. Sur. 449 ; S. C., under the name of Thompson v. 
Thompson, 21 Barbour, 107, and cases cited infra; see an interesting essay 
on this topic, by Dr. Ray, on the “Angel Will Case,” in 20 Am. Jour, of 
Insan. 145, and review of Flanagan v. Fenlayson, 18 ibid. 249; see also 
infra, §§ 723-743. 
(/) Boyd v. Eby, 8 Watts, 70. 
31 § 35] 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
[BOOK I. 
invalidate contracts generally, and defeat a will which is the direct 
offspring of this partial insanity.”(g) 
The converse of this result, depending, however, on the same 
principle, is illustrated by a case decided by Judge King, in 
Philadelphia, in 1851. “A monomaniacal delusion,” he said, 
“ inveterately entertained by a testator against one who would 
otherwise have been the natural object of his bounty, and 
shown to be the reason which has excluded him from it, and 
to have had no other existence except the distempered imagi- 
nation of the testator, would invalidate a will made under 
such influence. And for the very plain reason that a will 
made under the suggestion of such an insane delusion, is not 
what the law requires a will to be, the product of a mind 
capable of reasoning rightly. For although the law recognizes 
the difference between general and partial insanity, yet if the 
will has been made under the influence of such partial insanity, 
and as the product of it, it is as invalid as if made under the 
effects of an insanity never so general. Eccentricities of con- 
duct, absurd opinions, or belief in things appearing to us 
extravagant, although they may be and are evidences of tes- 
tamentary incapacity, do not constitute it necessarily and in 
themselves. A man may believe in witches and witchcraft, 
as it seems this testator did, or, like him, he may have believed 
his health to have been permanently affected by slow poisons 
surreptitiously administered to him, and yet be competent to 
make a will, where such will is not shown to have some con- 
nection with such absurd opinions or extravagant belief, and 
where the mind is shown to be in other respects sound and 
vigorous, and the judgment intelligent and clear. This tes- 
tator was upwards of eighty-three years old when he died, 
and consequently received his early impressions when the 
belief in witches and witchcraft still lingered among persons 
of a much higher social position and of much better educa- 
tion than himself. Colonial America either inherited from 
the mother country, or received from the emigration of con- 
tinental Europe, this absurd notion. Pennsylvania did not so 
far escape the general contagion as to make it very surprising 
32 
(g) See also Crum v. Tliornly, 47 111. 192. BOOK I.] 
WILLS: DELUSIONS. 
[§ 37 
tliat a man in the condition of life occupied by the testator, 
born before the American Revolution, should have partici- 
pated in it.”(A) 
§ 36. A belief in witchcraft, it has been ruled in Indiana 
and Mississippi, does not divest testamentary capacity,(z) and 
a will on its face rational has been sustained, although the 
testator believed in mesmerism, clairvoyance, magic, and 
occasional diabolic So, in Connecticut, in 1850, 
after a very careful review of the authorities, including 
Waring v. Waring, it was ruled “that the notion that a single 
delusion is general insanity, and that the jury are to be so 
instructed, irrespective of the degree or intensity of it, is 
nowhere countenanced in this country, and not until lately 
in England.” In this case the court below had refused to 
instruct the jury “that, if the testatrix harbored a delusion, 
she was while harboring such delusion of unsound mind, and 
her will made at such a time would be void.” Judge Ells- 
worth, who delivered the opinion of the Supreme Court, held 
that the judge was right in refusing to instruct the jury as 
requested. He discusses this question at great length, and 
his conclusion is: “That if the testatrix had mind enough to 
know and appreciate her relations to the natural objects of 
her bounty, and the character and effect of the dispositions of 
her will, then she had a sound and disposing mind and 
memory, although her mind may not be entirely unim- 
paired. ”(k) 
§ 37. So, on an appeal in the Hew Hampshire Supreme 
Court from the Probate Court, where the issue was whether a 
certain testator was of sane mind at the time of executing 
her will, and it appeared that the judge in the court below 
held that “mere moral insanity, disorder of the moral affec- 
tions and propensities, will not, unless accompanied by insane 
delusions, be sufficient to invalidate a will or to incapacitate 
(Ti) Leech v. Leech, 4 Am. L. J. 179. 
(t) Addington v. Wilson, 5 Ind. 137; Kelly v. Miller, 39 Miss. 19. See Lee 
v. Lee, 1 McCord, 183. 
(j) Thompson v. Thompson, 21 Barbour, 107; S. C. nom. Thompson v. 
Quimby, 2 Brad. Sur. 449. 
(&) Dunham’s Appeal, 27 Conn. 192. 
YOL. I.—3 
33 § 38] 
[BOOK I. 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
a person to make onealso “ if the will and its provisions 
were not in any way the offspring or the result of the delusion, 
and were not connected with or influenced by it, then she was 
of sane mind to make the willand exceptions were taken 
to these instructions; Sargent, J., in the Supreme Court, said, 
“ The instructions were correct as being in accordance with 
the great weight of authority, ancient and modern, English 
and American, medical and legal.”(l) 
§ 88. In a trial before Judge Grier, in the Circuit Court of 
the United States in Philadelphia, in 1855,(m) it was in evi- 
dence, “that the testator was of strong mind, but very 
eccentric, obstinate, and opinionated; but no witness,” to fol- 
low Judge Grier’s charge to the jury, “has shown facts 
from which a sound and disposing mind and memory could 
be inferred. His mind was greatly excited on a particular 
subject—his park property—he was very stingy, and set a 
high value on his rights of property. But it is no evidence 
of any mental delusion that he thought this seizure of his 
property without his consent a high-handed exercise of power, 
etc. That it became his hobby, made him very troublesome, 
and a bore to all his acquaintances and friends, is of no im- 
portance at all, in the matter trying before you, if he retained 
his memory and his usual shrewdness in the management of 
all his other concerns. Many a man has some hobby, and 
may ride it very much to the annoyance of others, and yet be 
perfectly capable of managing his own affairs, and disposing 
of his property by deed or will. He may believe in spirit- 
ualism, the Book of Mormon, Fourierism, or any other of the 
absurdities of the day, which infest the trains of fanatics. 
He may talk very much like a fool, as you or I may think, 
on these subjects, and unduly magnify their importance. He 
may profess an absurd fondness for music, and play the Pan- 
dean pipes, behave like a fool occasionally ; may tell his dreams 
and call them visions, and may believe in them ; he may be 
addicted to telling lies about his will; yet, gentlemen, we 
(l) Boardman v. Woodman, 47 N. H. 120. 
(m) Turner ®. Hand, 3 Wal. Jr. 120. 
34 BOOK I.] 
WILLS: DELUSIONS. 
[§ 40 
could not on these accounts pronounce him unfit to manage 
his affairs or dispose of his property in his lifetime; and could 
not avoid his deeds, nor condemn him to a lunatic hospital as 
a fit tenant for such an institution.” 
§ 39. On the other hand, a delusion by a testator that his 
nephews, being his heirs-at-law, were conspiring to take his 
life, and that one of them had caused his death by putting 
him in a stove, coupled with other collateral delusions, invali- 
dates a will which was its product.(n) In his opinion, in the 
Court of Errors, Denio, C. J., said: “On questions of testa- 
mentary capacity, courts should be careful not to confound 
perverse opinions and ureasonable prejudices with mental 
alienation. These qualities may exist in any mind, even to a 
high degree, and yet, so far as the view which the law takes 
of the case, the subject may be sane and competent to perform 
a legal act, and to be held responsible for a crime. Setting 
aside cases of dementia, or loss of mind and intellect, the true 
test of insanity is mental delusion.” A person may be mad or 
insane on some subjects, though on others he may reason, act, 
and speak like a sensible man.(o) 
§ 40. So, where a testator, during an attack of insanity, 
conceived a violent and groundless prejudice against his 
oldest son, which prejudice he retained after his apparent con- 
valescence, a will, disinheriting his son, which he executed at 
the latter period, was ruled by the Supreme Court of Georgia 
to be invalid.(p) But, unless the prejudice be proved to be 
insane, in other words in cases where it is the conclusion of a 
reasoning mind, on any evidence, no matter how slight, its 
indulgence will not overturn a will. Thus no such disabling 
effect was assigned to a notion by the testator, on slight hut 
insufficient evidence, that a daughter was illegitimate, this 
(n) Am. Seamen’s Friend Society v. Hopper, 43 Barbour, 625. Affirmed, 
25 N. Y. 619. 
(<-) Seaman’s Friend Society v. Hopper, 33 N. Y. 619. 
(p) Lucas v. Parsons, 24 Ga. 640 ; see White v. Wilson, 13 Vesey, 88 ; 
Florey v. Florey, 24 Ala. 241 ; Jenckes v. Smitlifield, 2 R. I. 255 ; Stanton v. 
Wetherax, 16 Barbour, 259; Cotton v. Ulmer, 45 Ala. (1871) 378 ; see Stark- 
house v. Horton, 15 N. J. 202. 
35 § 41] 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
[BOOK I. 
notion causing her nor will capacity be con- 
sidered as destroyed by any delusion not actually insane.(r) 
§ 41. The English rule was for a long time considered 
settled on the same basis, and was set forth with great fulness 
by the Prerogative Court, during Sir J. Hicholl’s presidency.(s) 
The question there was as to the testamentary capacity of a 
gentleman named Stott, an eminent electrician, who had 
an only child, against whom he had, without cause, imbibed 
an uncontrollable disgust and aversion, which manifested 
itself in acts of great cruelty and oppression, and ultimately 
in a will by which she was cut off in favor of collateral rela- 
tions. Sir J. Hicholl pronounced against the will, in an 
opinion distinguished for its elaborate fulness as well as for 
its judicial strength. “It has been said repeatedly by the 
counsel for the residuary legatees,” so he argues at the outset, 
“that this ‘partial insanity’ is a something unknown to the 
law of England. How, if it be meant by this, that the law of 
England never deems a person both sane and insane at one and 
the same time, upon one and the same subject, the assertion is 
a mere truism (as well, indeed, in reason as in law), and as 
such is incapable of being effectively opposed. At the same 
time, as no such sort of partial insanity is set up by the 
daughter, the case of partial insanity which she has really 
undertaken to sustain, is at no risk from the truth of that 
position, so understood, being conceded. But if, by that po- 
sition, it be meant, and intended, that the law of England 
never deems a party both sane and insane at different times, 
upon the same subject; and both sane and insane at the same 
time upon different subjects—(the most usual sense, this last, 
of the phrase “partial insanity,’ and the one in which I take it 
to have been used throughout, by the counsel for the next of 
kin), there can scarcely be a position more destitute of legal 
foundation; or rather, there can scarcely be one more adverse 
to the streams and current of legal authority.” The learned 
judge sustains himself by the authority of Locke, who says: 
(q) Clapp v. Fullerton, 34 N. Y. 190. 
(r) Hall v. Hall, 38 Ala. 131; Hall v. Unger, 2 Abbott, U. S. 507. 
(s) Dew v. Clark, 3 Addams, 79 ; see 1 Ibid. 279; 2 Ibid. 102. 
36 BOOK I.] 
WILLS: DELUSIONS. 
[§ 41 
“ A man who is very sober, and of a right understanding, in 
all other things, may in one particular be as frantic as any 
man in Bedlamand of Lord Hale, who expressly declares 
“ there is a partial insanity of mind, and a total insanity. 
The former is either in respect to things [quoad hoc, vel quoad 
illud insanire—some persons that have a competent use of 
reason in respect to some subjects, are yet under a particular 
dementia in respect of some particular discourses, subjects, or 
applications], or else it is partial in respect of degrees; and 
this is the condition with very many, especially melancholy 
persons, who, for the most part, discover their defect in exces- 
sive fears and grief,” and yet are not wholly destitute of the 
use of reason. He concludes as follows: “The deceased’s state 
of mind at the time of making his will is intimately, I think, 
connected with his state of mind on the subject matter of his 
will—understanding by this, the disposal, by will, of his pro- 
perty. If the deceased were at all times of unsound mind on 
the subject matter of his will, he must have been of unsound 
mind at the time of making his will. To suppose the contrary 
would be to suppose the deceased both sane and insane at the 
same time and on the same subject; a supposition, I apprehend, 
equally absurd in a legal and moral point of view. And, subject 
to these considerations, the question in the end to be deter- 
mined—the point at final issue—is not whether the deceased’s 
insanity in certain other particulars, as proved by the daughter, 
should have the effect of defeating a will, generally, of the 
deceased, or even this identical will, but it is whether his in- 
sanity, on the subject of his daughter, as also proved by the 
daughter, should have the effect of defeating, not so much any 
will (a will generally), of the deceased, as this identical will; 
and to the decision of that question I am to be understood as 
solely addressing myself in the following observations:— 
“How, the daughter being in this case the sole next of kin, 
the deceased’s only child, it is quite impossible, I think, to 
disconnect the daughter from the subject matter of his will— 
that is, of his property; they are subjects, in effect, identified. 
Hence, the deceased’s insanity on the subject of his daughter, 
generally speaking, being proved at all times in my judgment, 
it follows that his insanity, at the time of making his will, is 
37 §42] 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
[book I. 
also proved, in my judgment, unless the contrary is to be in- 
ferred from the will itself. But the inference furnished by 
the will itself (and it is for this only that I refer to the dis- 
posative part—to the contents of the will at all) is quite the 
other way. For the prominent feature of the deceased’s 
insanity, in respect to the daughter, was aversion or antipathy 
to the daughter, so pleaded and so proved; and the will is a 
will plainly inofficious, so far as regards the daughter, being a 
will by which she is, in effect, disinherited—disinherited, too, 
in favor of parties nearly utter strangers to the deceased (for 
so it appears), though not remotely connected with him by 
blood, being his sister’s children. Therefore, it follows, that, 
in my judgment, the deceased is proved, upon the whole 
matter, to have been insane at the time of his making this 
will: which was the daughter’s case. * * * Had the contents 
of the will furnished a contrary inference—had the will, so 
far as respects the daughter, been in all parts of it an officious 
will, the conclusion on this head, and so upon the whole case, 
might have been different; the very contents of the will would 
in that case have inferred that, however partially insane (insane 
on the subject of his daughter) the deceased might have been, 
generally speaking, still, that such partial insanity was not in 
actual operation at the time of his making the will, in which 
respect the will might have been valid.” 
§ 42. It is true, that, when in the same case a bill of review 
was applied for to Lord Chancellor Lyndhurst, he limited 
with evident caution his approval of the judgment of Sir J. 
Hicholl in such a way as to reserve the question of partial 
insanity, as above stated. “I have read his judgment,” he 
“with great attention; and I collect from it that his 
meaning is this: that there must be unsoundness of mind to 
invalidate a will, but that the unsoundness may be evidenced 
in reference to one or more subjects. All that the learned 
judge meant to convey was, that it was no objection to the 
imputation of unsoundness, that it manifested itself only or 
principally with reference to one particular question, or one 
particular person.” 
(0 5 Russ. Ch. Cases, 163 
38 BOOK I.] 
wills: delusions. 
39 
§ 43. But in 1848, in a very remarkable case before the 
Privy Council, an opinion was delivered, without dissent, by 
Lord Brougham, as the judgment of himself, Lord Langdale, 
Dr. Lushington, and Mr. T. Pemberton Leigh, in which the 
notion of partial insanity on one point, as consistent with tes- 
tamentary capacity, was explicitly repudiated.(¥) It is true 
that the case was one in which the same result could have 
been reached even on Sir J. Hicholl’s reasoning. The testatrix, 
who was advanced in years, was excessively penurious and 
eccentric, was extremely irritable, wrangled with her servants 
to an excess, at times indulged in very obscene conversation, 
believed herself the object of various amorous enterprises, and 
among others from Lord Melbourne, and Lord J. Russel, who 
she believed prowled about the house as fishwomen. All this, 
and more, on Sir J. Hicholl’s hypothesis, might have been 
consistent with a testamentary capacity. But, in addition to 
this, it was shown that the testatrix had an insane delusion 
that her brother, whom she disinherited, had joined the 
Catholics, to whom she had an aversion, and haunted her 
house, also in disguise. Certainly, even on the theory of 
partial insanity, this, coupled as it was with an inquisition of 
lunacy, would have been enough to vacate the will. But 
Lord Brougham, in delivering the judgment of the Privy 
Council, went further. “The question being,” he said, 
“whetherthe will was duly made by a person of sound mind 
or not, our inquiry, of course, is, whether or not the party 
possessed his faculties, and possessed them in a healthful state. 
His mental powers may be still subsisting, no disease may 
have taken them away, and yet they may have been affected 
with disease, and thus may not have entitled their posssessor 
to the appellation of a person whose mind was sound. 
“Again, the disease affecting them may have been more or 
less general; it may have extended over a greater or less 
portion of the understanding, or, rather, we ought to say, that 
it may have affected more or it may have affected fewer of 
the mental faculties. For we must keep always in view that 
which the inaccuracy of ordinary language inclines us to 
(u) Waring v. Waring, 6 Moore P. C. Cases, 349. 
39 § 43] 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
[BOOK I. 
forget, that the mind is one and indivisible; that when we 
speak of its different powers or faculties, as memory, con- 
sciousness, we speak metaphorically, likening the mind to the 
body, as if it had members or compartments, whereas, in all 
accuracy of speech, we mean to speak of the mind acting 
variously, that is, remembering, fancjdng, reflecting, the same 
mind in all these operations being the agent. We therefore 
cannot in any correctness of language speak of general or 
partial insanity; but we may most accurately speak of the 
mind exerting itself in consciousness without cloud or imper- 
fection, but being morbid when it fancies; and so its owner 
may have a diseased imagination, or the imagination may not 
be diseased, and yet the memory may be impaired, and the 
owner be said to have lost his memory. In these cases we do 
not mean that the mind has one faculty, as consciousness, 
sound, while another, as memory or imagination, is diseased ; 
but that the mind is sound when reflecting on its own opera- 
tions, and diseased when exercising the combination termed 
imaginary, or casting the retrospect called recollecting. 
“This view of the subject, though apparently simple, and 
almost too unquestionable to require or even to justify a 
formal statement, is of considerable importance when we come 
to examine cases of what are called, incorrectly, ‘partial 
insanity,’ which would be better described by the phrase 
‘insanity,’ or ‘unsoundness,’ always existing, though only 
occasionally manifest. 
“Nothing is more certain than the existence of mental dis- 
ease of this description. Nay, by far the greater number of 
morbid cases belong to this class. They have acquired a 
name—the disease called familiarly, as well as by physicians, 
‘ Monomania,’ on the supposition of its being confined, which 
it rarely is, to a single faculty or exercise of the mind; a 
person shall be of sound mind, to all appearance, upon all 
subjects save one or two, and on these he shall be subject 
to delusions—mistaking for realities the suggestions of his 
imagination. The disease here is said to be in the imagina- 
tion ; that is, the patient’s mind is morbid or unsound when 
it imagines; healthy and sound when it remembers. Nay, he 
may be of unsound mind when his imagination is employed on 
40 BOOK I.] 
wills: delusions. 
[§ 43 
some subjects, in making some combinations, and sound when 
making others, or making one single kind of combination. 
Thus he may not believe all his fancies to be realities, but 
only some or one. Of such a person we usually predicate 
that he is of unsound mind only upon certain points. I have 
qualified the proposition thus on purpose; because, if the being 
or essence which we term the mind is unsound on one subject, 
provided that unsoundness is at all times existing on that 
subject, it is quite erroneous to suppose such a mind really 
sound on other subjects. It is only sound in appearance; for 
if the subject of the delusion be presented to it, the unsound- 
ness which is manifested by believing in the suggestions of 
fancy, as if they were realities, would break out; consequently, 
it is absurd to speak of this as a really sound mind (a mind 
sound when the subject of the delusion is not presented), as it 
would be to say that a person had not the gout, because, his 
attention being diverted from the pain by some more powerful 
sensation by which the person was affected, he, for the moment, 
was unconscious of his visitation. It follows, from hence, 
that no confidence can be placed in the acts, or in any act, of 
a diseased mind, however apparently rational that act may 
appear to be, or may in reality be. The act in question may 
be exactly such as a person without mental infirmity might 
well do. But there is this difference between the two cases; 
the person uniformly and always of sound mind could not, at 
the moment of the act done, be the prey of morbid delusion, 
whatever subject was presented to his mind ; whereas, the 
person called partially insane—that is to say, sometimes 
appearing to be of sound and sometimes of unsound mind—• 
would inevitably show his subjection to the disease the instant 
the topic was suggested. Therefore, we can, with perfect 
confidence, rely on the act done by the former, because we are 
sure that no lurking insanity—no particular, or partial, or 
occasional delusion—does mingle itself with the person’s act 
and materially affect it. But we never can rely on the act, 
however rational in appearance, done by the latter, because we 
have no security that the lurking delusion, the real unsound- 
ness, does not mingle itself with or occasion the act. We are 
wrong in speaking of partial unsoundness; we are less incor- 
41 § 43] 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
[BOOK I. 
rect in speaking of occasional unsoundness; we should say that 
the unsoundness always exists, but it requires a reference to 
the peculiar topic, else it lurks and appears not. But the 
malady is there, and, as the mind is one and the same, it is 
really diseased, while apparently sound; and really its acts, 
whatever appearance they may put on, are only the acts of a 
morbid or unsound mind. Unless this reasonino- be well 
founded, we cannot account for the unanimity with which men 
have always agreed in regarding as the acts of an insane mind 
those acts, to all appearance rational, which a person does 
who labors under delusions of a plainly extravagant nature, 
though there is nothing in the act done, and nothing in the 
conduct of the party while doing it, at all connected with the 
morbid fancies. If these fancies only affect the party now 
and then, if for some months he is free from them—laboring 
under them at other times, then his acts apparently rational 
would not be regarded as those of a person mentally diseased. 
But if we were convinced that at the time of doing the acts 
the delusion continued, and was only latent by reason of the 
mind not having been pointed to its subject, and would have 
instantly shown itself had that subject been presented, then 
the act is at once regarded as that of a madman. Thus there 
have been many cases of persons laboring under the delusion 
that they were other than themselves; have believed them- 
selves deceased emperors or conquerors ; others, supernatural 
beings. Suppose one, who believed himself the Emperor of 
Germany, and on all other subjects was apparently of sound 
mind, did any act requiring mind, memory, and understanding. 
Suppose he . made his will, and either did not sign it (before 
signing was required), or, if he did, signed it with his own 
name; but suppose we were quite convinced that, had any 
one spoken on the German Diet, or proceeded to abuse the 
German Emperor, the testator’s delusion would at once break 
forth, then we must at once pronounce the will void, but as 
officious and as rational, in every respect, as any disposition of 
property could be. Of course, no one could propound such a 
will with any hopes of probate, if it happened that while 
making it the delusion had broken out, even although the 
instrument bore no marks of its existence at the time of its 
42 BOOK I.] 
WILLS: DELUSIONS. 
[§ 43 
concoction. It must always be a question of evidence, on the 
whole facts and circumstances of the case, whether or not the 
morbid delusion existed at the time of the factum; that is, 
whether, had the subject of it been presented, the cord been 
struck, there would have arisen the insane discord which is 
absent, to all outward appearance, from the cord not having 
been struck. The principles which have been laid down do 
not at all differ from those on which the courts have acted, 
which text writers have construed, and which scientific men, 
both moralists and physicians, have approved. In the well 
known case of Dew v. Clark, reported 3 Addams, 97, but also 
reported, with the great advantage of the learned judge’s cor- 
rections, and published separately by Dr. IIaggard,we find Sir 
John Nicholl stating that mere eccentricity is not enough to 
constitute mental unsoundness, nor great caprice, nor violence 
of temper, but that there must be an aberration of reason; 
and he adopts a definition of delusion given by the learned 
counsel in the cause (now a member of this court), deeming it 
well described by the expression that‘it is a belief of facts 
which no rational person wTould have believed.’ Perhaps, in 
a strictly logical view, this definition is liable to one exception, 
or, at least, exposed to one criticism, namely, that it gives a 
consequence for a definition; and it may be more strictly accu- 
rate to term ‘delusion’ the belief of things as realities which 
exist only in the imagination of the patient. The frame or 
state of mind which indicates his incapacity to struggle 
against such an erroneous belief, constitutes an unsound mind. 
Sir John ISTicholl justly adds that such delusions are generally 
attended with eccentricities, often with violence, very often 
with exaggerated suspicions and jealousies. * * * * The 
existence of delusions being proved, and their continuance 
proved or assumed, at the date of the factum, so that the court 
is satisfied of the testatrix then laboring under their influence, 
it is wholly immaterial that they do not appear in the will 
itself. The party propounding often approached this point in 
argument, and repeatedly adverted to the fact—perhaps we 
should say the assertion or assumption—that this will betrays 
no marks of the alleged delusions, or generally of an unsound 
mind. There was a manifest disposition to lay down a rule 
43 § 45] 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
[book i. 
that no person laboring under monomania, or partial insanity, 
can be deemed intestable, unless the kind of insanity appears 
on the face of the will. But there was wanting the courage 
to lay down a proposition which would at once have been 
rejected, and must have been met with the question, Could 
any court admit to probate the will of the man who said (in 
the case cited by Sir John Eficholl in Dew v. Clark), CI am 
the Christ,’ although that will bore no marks whatever of an 
unsound mind, still less of the dreadful delusion under which 
the party labored ?” 
§ 44. So far, indeed, has this doctrine been pushed that an 
extravagant and absurd passion for pets has been, in England, 
regarded as proof of incapacity. In one case this rule was 
applied to an unmarried woman, who kept, in kennels in her 
drawing-room, fourteen dogs, varied in sex ;(v) and to another, 
who kept in her house a great multitude of cats, which were 
provided with regular meals, and were furnished with plates 
and napkins.(w) But are such extravagances necessarily 
proofs of insanity? May they not be sometimes marks simply 
of the desire to produce a sensation, such as that which led to 
the dog tea-parties which some years ago were got up as new 
excitements, by the leaders of fashion in Rome ? Or, if it 
were possible for a jury to put itself in the place of an un- 
married and solitary woman of advancing years, would such 
capricious indulgence in pets appear any more inconsistent 
with sanity, than would an analogous indulgence, by a young 
man of dash and wealth, in hounds, horses, and foxes? 
§ 45. In 1867, in the Court of Probate and Divorce, the 
position that a collateral insane delusion invalidates a will 
which was not directly the product of such delusion, was 
renewed by Sir J. P. Wilde (Lord Penzance) on the following 
state of facts:— 
Ann Thwaytes, a widow, died in London on April 8, 1866, 
possessed of a fortune, left to her by her husband, of £500,000. 
By a will dated March 6, 1866, she left legacies amounting to 
(v) Yglesias v. Dyke, Prer. Court, May, 1852, Taylor, 658; Redfield on 
Wills, I. chap. iii. § 11. 
(w) Ibid. 
44 [§ 45 
BOOK I.] 
wills: delusions. 
£45,000 to her husband’s family; legacies of the same amount 
to the family of her sister, Mrs. Tebbitt; legacies to a con- 
siderable amount to persons whom she had become acquainted 
with in the latter period of her life, to servants, and to 
charities; and the residue to John Simms Smith and to 
Samuel Smith. The will was contested by Mrs. Tebbitt; and 
on August 6, 1867, judgment was delivered by Sir J. P. 
"Wilde.(F) He’began by stating that “ volition” to give dis- 
posing power “ should be that of a mind of natural capacity, 
not unduly impaired by old age, or tainted by morbid influence. 
The inquiry before the court has relation only to the last of 
these conditions; and the subject is again narrowed by the 
nature of the morbid influence or mental disorder imputed ; 
for it is not of an obvious and general perversion of the mind 
from reason, nor of language or conduct generally irrational, 
that the testatrix is here accused; but only of that peculiar 
form of mental malady which used to he called partial insanity, 
and which, in the more exact language of modern science, 
has obtained the name of monomania. Aperson who is affected 
by monomania, although sensible and prudent on subjects and occa- 
sions other than those upon which his infirmity is commonly dis- 
played, is not in law capable of making a will. This has been 
clearly decided in the several cases quoted at the bar, of which it is 
only necessary to name that of Waring v. Waring. It is needless 
to travel over the paths by which this conclusion has been 
reached. It is properly the starting-point in such an inquiry 
as the present. For I conceive the decided cases to have 
established this proposition: that if disease be once shown to 
exist in the mind of the testator, it matters not that the 
disease be discoverable only when the mind is addressed to a 
certain subject, to the exclusion of all others, the testator 
must be pronounced incapable. Further, that the same result 
follows, though the particular subjects upon which the disease is 
manifested have no connection whatever with the testamentary dis- 
position before the court.” It is true that evidence as to Mrs. 
Thwaytes showed her mind to have been generally diseased. 
(x) Smith v. Tebbitt, Law Rep. 1 Prob. and Div. 398. 
45 §46] 
[book i. 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
She called herself “ the third person in the Trinity. She was 
the Holy Ghost, and Mr. Simms Smith was the Father.” She 
believed she was the victim of attempts to poison. She was 
attended by the spirits of deceased friends. Her husband 
was “the devil,” for whom she would not go into mourning. 
Her heirs-at-law were “doomed to perdition.” She could 
“ never die.” She was “ above God.” She had a tiara of 
jewels made, in which she was to ascend to heaven. Her 
London drawing-room was furnished at an expense of £15,000 
for the “day of judgment.” While her husband was lying 
dead, and before his funeral, she made a draft will by which, 
with the exception of about £50,000, she bequeathed all her 
vast property to Hr. Smith. This was followed by an annuity 
of £2000 a year, and in after years by donations to the amount 
of £50,000. Yet Hr. Smith “was a stranger in blood to her, 
and is not shown,” so speaks Sir J. P. Wilde, “ up to the time 
of the above will, to have rendered her any service beyond 
ordinary medical advice, or filled any other relation to her 
than medical adviser. In after years he added to his medical 
advice the trouble of receiving her dividends, and paying 
them in to her bankers.” Certainly evidence such as this does 
not show simply a “ monomania” on any one special and 
isolated topic, disconnected with the subject matter of testa- 
mentary disposition. If Mrs. Thwavtes was not insane, in the 
general sense of the term, she cherished insane delusions as to 
those who were the subjects on whom her will was to act. 
Hence, on the principle that “partial” insanity defeats a will 
which is its direct offspring, Mrs. Thwaytes’s will, viewing 
her insanity as partial, would have been inoperative. But, as 
has been seen, the decision of Sir J. P. Wilde goes beyond this. 
For he declares that mental disease destroys testamentary 
capacity “though the particular subjects upon which the 
disease is manifested have no connection whatever with the 
testamentary disposition before the court.”(xx) 
§ 46. But in July, 1870, the general legal proposition 
thus stated was expressly repudiated by the Court of Queen’s 
(zz) See a notice of tliis decision in the British and Foreign Medico-Chir. 
Review for October, 1867. 
46 BOOK I.] 
wills: delusions. 
[§ 46 
Bench.(y) The will in dispute was one in favor of the tes- 
tator’s niece. It was made in 1863. lie had been confined as a 
lunatic for some months in 1841. He was subject, down to the 
date of the will, to particular delusions—he was personally 
molested by a person who had been long since dead, and he 
was pursued by visible evil spirits. As to his general capacity 
the evidence was contradictory, but it was admitted that at 
times he was incapable of making a will. The jury were 
directed to consider whether, at the time of making the will, 
the testator was capable of having such a knowledge and 
appreciation of facts, and was so far master of his intentions, 
free from delusions, as would enable him to have a will of his 
own in the disposition of his property, and act upon it; and 
they were further directed that the mere fact of his being 
able to recollect things, or to converse rationally on some 
subjects, or to manage some business, would not be sufficient 
to show he was sane; while,* on the other hand, slowness, 
feebleness, and eccentricities, would not be sufficient to show 
he was insane; and that the whole burden of showing that 
the testator was fit at the time, was on the party claiming 
under the will. It was ruled by the court in banc, that the 
direction was practically right; for that- it was immaterial 
whether the delusions remained latent or not at the time, if 
the testator was otherwise competent to make a will, as 
neither of the delusions—the dead man being in no way 
connected with the testator—had, or could have had, any 
influence upon him in disposing of his property. Lord 
Cockburn, C. J., in delivering judgment, said, that “it was 
necessary to consider how far such a degree of unsoundness of 
mind as is involved in the delusions under which this testator 
labored would be fatal to testamentary capacity ; in other 
words, whether delusions arising from mental disease, but not 
calculated to prevent the exercise of those faculties essential to 
the making of a will, or to interfere with the consideration of 
the matters which should be weighed and taken into account 
on such an occasion, and which delusions had, in point of 
(y) Banks v. Goodfellow, Law Rep. 5 Q. B. 549; Cockburn, C. J., Black- 
burn, Mellor, and Hanner, JJ. 
47 § 46] 
[BOOK I. 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
fact, no influence whatever on the testamentary disposition in 
question, are sufficient to deprive a testator of testamentary 
capacity and to invalidate a will.” 
He then analyzed the proof of the existence of partial 
insanity in the testator, and after an extended review of the 
law, both English and American, he said: “Ho doubt, when 
the fact that the testator had been subject to any insane 
delusion is established, a will should be regarded with great 
distrust, and every presumption should in the first instance 
be made against it. When insane delusion has once been 
shown to have existed, it may be difficult to say whether the 
mental disorder may not possibly have extended beyond the 
particular form or instance, in which it has manifested itself. 
It may be equally difficult to say how far the delusion may 
not have influenced the testator in the particular disposal of 
his property; and the presumption against a will made under 
such circumstances becomes additionally strong where the will 
is, to use the term of the civilians, an inofficious one, that is 
to say, one in which natural affection and the claims of near 
relationship have been disregarded. But "when in the result 
the jury are satisfied that the delusion has not affected the 
general faculties of the mind, and can have had no effect upon 
the will, we see no sufficient reason why the testator should 
be held to have lost his right to make a will, or why a will 
made under such circumstances should not be upheld. Such 
an inquiry may involve, it is true, considerable difficulty, and 
require much nicety of discrimination; but we see no reason 
to think that it is beyond the power of judicial investigation 
and decision, or may not be disposed of by a jury directed or 
guided by a judge. In the case before us, two delusions dis- 
turbed the mind of the testator, the one, that he was pursued 
by spirits, the other, that a man, long since dead, came 
personally to molest him. Neither of these delusions, the 
dead man not having been in any way connected with him, 
had, or could have had, any influence upon him in disposing 
of his property. Under these circumstances, then, we see no 
ground for holding the will to be invalid.” The rule, therefore, 
which was applied for on the ground that the judge mis- 
48 BOOK I.] 
WILLS ; CONTRACTS ; DELUSIONS. 
[§ 48 
directed the jury, and that the verdict was against the weight 
of evidence, was discharged. 
§ 47. We have, therefore, an apparent conflict in the 
English decisions as above recorded. On the one side, in the 
view of Sir J. Nicholl and Chief Justice Cockburn, “ partial 
insanity,” consisting of delusions and hallucinations not con- 
nected with the subject matter of a will, does not invalidate 
such will. On the other hand, in the opinions quoted from 
Lord Brougham, and Lord Penzance, it is held that insanity 
or “mental disease,” when it exists at all, destroys testamentary 
capacity, though it displays itself in delusions which in no way 
touch the subject matter of the will. If we view the question 
psychologically, as will hereafter he more fully done,(>) it will 
be difficult to overthrow the reasoning of Lord Brougham 
and Lord Penzance. We cannot hold one department of the 
mind to be sane, and the others insane, unless we adopt the com- 
partment theory, which, as will hereafter be seen, is absurd. 
§ 48. Or, let us take the modified form in which this theory 
is exhibited by Chief Justice Cockburn.^1) “ It is not given to 
man,” he says, “to fathom the mystery of the human intelli- 
gence, or to ascertain the constitution of our sentient and 
intelligent being. But whatever may be its essence, every one 
must be conscious that the faculties and functions of mind are 
as various and distinct as are the powers and functions of our 
physical organization. The senses, the instincts, the affections, 
the passions, the moral qualities, the will, perception, thought, reason, 
imagination, memory, are so many distinct faculties or functions 
of mind. The pathology of mental disease, and the expe- 
rience of insanity in its various forms, teach us that while, 
on the one hand, all the faculties, moral and intellectual, may 
be involved in one common ruin, as in the case of a raving 
maniac; in other instances, one or more only of these faculties 
or functions may be disordered, while the rest are left unim- 
paired and undisturbed; that, while the mind may be over- 
powered by delusions which utterly demoralize it, and unfit it 
for the perception of the true nature of surrounding things, 
(z) Infra, §§ 533-572. 
(z1) Per Cockburn, C. J., Law Rep., vol. v. p. 549, Q. B. 
YOL. I.—4 
49 § 49] 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
[book i. 
or for the discharge of the common obligations of life, there 
often are delusions which, though the offspring of mental 
disease, and so far constituting insanity, yet leave the indi- 
vidual in all other respects rational, and capable of transacting 
the ordinary affairs and fulfilling the duties and obligations 
incidental to the various relations of life. No doubt, when 
delusions exist which have no foundation in reality, and 
spring only from a diseased and morbid condition of the 
mind, to that extent the mind must necessarily be taken to be un- 
sound, just as the body, if any of its parts or functions is affected 
by local disease, may be said to be unsound, though all its other mem- 
bers maybe healthy and their powers or functions unimpaired.” 
§ 49. If we take the last qualification, which is here placed 
in italics, as conceding the general unsoundness of such a 
mind, then there is no practical difference between the opinion 
of Chief Justice Cockburn, on the one side, and those of Lord 
Brougham, and of all sound modern psychologists, on the 
other side. But, going back to the beginning of the above 
extract, if it be the opinion of its able and eminent author, 
that (1) the senses, (2) the instincts, (3) the affections, (4) the 
passions, (5) the moral qualities, (6) the will, (7) the perception, 
(8) the thought, (9) the reason, (10) the imagination, and (11) 
the memory, are independent and separate portions of the 
mind, so that one of these may be insane, and yet the indi- 
vidual may be in all other respects rational, we must reject 
such a position as not only philosophically incorrect, but as 
fraught with consequences dangerous to public justice. That 
such is the case, will be hereafter fully shown.(a) It is enough 
now to say, that if we suppose a person to have an insane 
delusion of the “senses” (the first of C. J. Cockburn’s “dis- 
tinct faculties or functions of mind”), it is hard to conceive 
how such a delusion can continue to exist, if the other faculties 
remain in vigor. In fact, all men have, sleeping or waking, 
such delusions ; and the question of sanity depends, not on 
the liability of the “senses” to delusion, but on the capacity 
of the other mental faculties to dispel the delusion. Thus,- 
for instance, de Boismont tells us, that, at a soiree given by M. 
(a) Infra, §§ 142, 533-572. 
50 BOOK I.J 
[§ 50 
wills; contracts; delusions. 
Bellart, in Paris, some days before the execution of Marshal 
Hey, Prince of Moskowa, the usher, having the name of M. 
Marechal Aine to announce, pronounced it “ M. le Marechal 
Ney.” “An electric shudder ran through the assembly, and, 
for my own part, I own that the resemblance to the prince 
was for a moment as perfect to my eyes as reality.” The 
delusion was the effect of a highly excited imagination, 
seizing upon an association of sounds. The dispelling of this 
delusion was the result of “perception,” “thought,” “reason,” 
and “ memory,” acting healthily. The delusion could not 
have continued to exist while these latter functions of mind 
continued in a healthy state. If it had continued to exist, 
this would have been a proof that these functions were 
diseased. Or, to state the proposition generally, no insane 
delusion can continue to operate, when proper modes have been 
taken to dispel it, while the reason is unimpaired. The fact 
that such a delusion continues to operate, under such condi- 
tions, proves the unsoundness of the reason. 
§ 50. That such, indeed, is C. J. Cockburn’s own conclusion, 
we gather from the concluding and italicized portions of the 
extract just quoted; and the apparent conflict of opinion to 
which we have adverted, may therefore be reconciled when 
we recollect that as in sanity, so in insanity, there are various 
gradations, and that sanity and insanity, therefore, have a 
region in which they melt into each other imperceptibly. To 
adopt an illustration that Lord Penzance borrows from Mr. 
Burke, we know what night is, and we know what day is, 
but it is hard for us to say when either day or night becomes 
twilight. Hence, just as some sane persons (e.g. in sleep or 
when acting under compulsion), may be irresponsible, so some 
insane persons may be responsible, and be legally viewed as such. 
A person may be of diseased mind, yet may be capable of testi- 
fying, in cases when such evidence is necessary,(b) in a court of 
justice; may make contracts, as has just been seen, which, when 
there is no unfairness, and the party contracted with is without 
‘ notice, will be held binding; and may be responsible, though 
(&) R. v. Hill, 2 Den. C. C. 254 ; Fennel v. Tait, 1 C. M. & R. 584; Spittle 
v. Walton, 40 L. J. Clian. 308. Infra, § 242. 
51 §51] 
[BOOK I. 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
it may be in a diminished grade, for crime.^1) And it is 
clear that a person of a very low degree of intelligence, even 
when the mind is debilitated by old age, may make a will 
which, if not unduly influenced, will be good. Several cases 
to this effect have been already cited; and such cases, in fact, 
are relied on by Chief Justice Cockburn for the maintenance of 
the position that persons of “ unsound mind,” may, under 
certain circumstances, when they have a disposing memory, 
and when they have no delusion as to the testamentary 
subject matter, make a valid will. 
§ 51. If we accept the position just stated—that there may 
be degrees of mental disease which do not destroy testa- 
mentary capacity, provided the testator has at the time a de- 
posing memory, and is not influenced by fraud or imposition— 
then we not only reconcile the cases which have been cited 
above, but we avoid a very embarrassing alternative. For, 
unless we concede that there may be grades in mental disease, 
and that in the lesser and more qualified grades there may be 
testamentary capacity, we must, in cases of collateral mono- 
manias, hold either that the mind is divisible, so that one part 
may be sane and the other insane, or, as maintained by Lord 
Brougham and Lord Penzance, that a single such monomania 
destroys capacity in toto. Let us examine these hypotheses 
singly. 
First, that the mind is divisible, so that one part may be sane 
and the other insane. The psychological error of this hypothe- 
sis is elsewhere displayed.(e) Its practical absurdities may be 
here briefly noticed. If it be true, a testator, instead of being 
one person, is a combination of two, one sane, and another 
insane. Ilis will, like himself, is divisible. That part which 
emanates from his insane delusions is void; the part that 
emanates from his sane judgment is valid. So as to his 
contracts. Supposing we assume this duality, we have, instead 
of one obligor, two—the insane part of the obligor, making 
obligations which are void; the sane part, making obligations 
which are valid. Or, if we hold that the will or the contract 
is avoided when the insane elements in the testator’s or 
(&’) See infra, § 122. 
(c) See infra, §§ 532-572. 
52 book i.] 
wills; contracts; delusions. 
[§ 53 
obligor’s mind affect such contract or will, we must enter on 
the still more difficult task of deciding the extent to which 
such insane elements operate. What tests can we have for 
such an examination ? Who can undertake to limit the ope- 
ration of motives admitted to be insane, and therefore inca- 
pable of rational measurement ? Who can undertake to say 
that these insane influences at a particular moment, by 
yielding to a sound judgment, become virtually sane? 
§ 52. On the other hand, if we hold that insane delusions, 
disconnected with the subject matter of a will, destroy testa- 
mentary capacity in toto, we are embarrassed with difficulties 
at least equally great. Many men, whose testamentary 
capacity it would be monstrous to dispute, have confessed 
delusions whose sanity it would be equally monstrous to 
maintain. Thus, Dr. Johnson was confident that he heard 
his deceased mother’s voice, crying “Samuelnor was this 
hallucination ever corrected ; and yet no one would maintain 
that he was incapable of making a will. 
§ 53. Lord Castlereagh, a short time before his suicide, gave 
a narrative of a supposed apparition, in which he firmly 
believed, and which exercised a material influence on his life. 
When in the Irish Parliament, he went to visit a friend at a 
castle in the north of Ireland. Shown into a dark and vener- 
able chamber, where there existed every material which would 
excite a superstitious imagination, having dismissed his valet, 
he went to bed. Hardly, however, was his candle extinguished, 
when he became aware of a glimmer of light in his room. 
Ho fire had been lighted—the curtains were closed—and no 
explanation affording itself of this phenomenon, he rose from 
the bed, when, to his surprise, on turning to the point whence 
the light proceeded, he perceived the figure of a young and 
beautiful child, with a halo encircling its brow. With perfect 
confidence in the reality of the object, but believing it had 
been got up artificially as a joke, he followed it until it nestled 
in the arch of the great chimney, and at last sunk beneath 
the fireboard. The next morning he sought in vain for a clue 
by which the mystery could be dispelled. It was a subject 
which his host evidently shunned. On putting the question 
pointedly, however, Lord Castlereagh was informed that it 
53 § 53a] 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
[book i. 
was true that such a spectre as that had been reported in 
former times to have appeared under the title of the “ Radiant 
Child.” Once again the phantom appeared to the same noble 
and capable statesman—but no longer, it is said, with a radiant 
crown. This last appearance was not long before his own 
self-destruction, and yet, if the exterior alone was considered, 
when he was at the height of his power and fame. Certainly 
the spectre can now be easily explained, because a man who 
is weak enough to commit suicide is not too strong to he 
haunted in a dream by an apparition of whose traditional 
reputation he had undoubtedly heard, though the recollection 
afterwards escaped him. And yet we have here a case of an 
hallucination so entire as to produce partial insanity on that 
point, and perhaps to have been a motive power in suicide. 
Still, it would hardly have been maintained that Lord Castle- 
reagh, than whom no man of his day exhibited, when in public 
life, greater coolness or business clearness, was incapable, be- 
cause of this single delusion, of making a contract or will. 
§53a. A similar anecdote is related of the late President 
Lincoln: “It was just after my election in 1860,” so he is re- 
ported to have said to his Secretary, Mr. John Hay, “ when 
the news had been coming in thick and fast all day, and there 
had been a great ‘hurrah boys!’ so that I was well tired out, 
and went home to rest, throwing myself on a lounge in my 
chamber. Opposite to where I lay was a bureau, with a swing- 
ing-glass upon it; and, in looking in that glass, I saw myself 
reflected nearly at full length ; but my face, I noticed, had two 
separate and distinct images, the tip of the nose of one being 
about three inches from the tip of the other. I was a little 
bothered, perhaps startled, and got up and looked in the glass; 
but the illusion vanished. On lying down again, I saw it a 
second time,—plainer, if possible, than before; and then I 
noticed that one of the faces was a little paler—say five 
shades—than the other. I got up, and the thing melted 
away, and in the excitement of the hour I forgot all about it,— 
nearly, but not quite, for the thing would once in a while 
come back again: but I never succeeded in bringing the ghost 
back after that, though I once tried very industriously to show 
it to my wife, who was worried about it somewhat. She 
54 BOOK I.] 
wills; contracts; delusions. 
[§ 54 
thought it was a ‘ sign’ that I was to he elected to a second 
term of office, and that the paleness of one of the faces was an 
omen that I should not see life through the last term.’^c1) 
Nor was this a single case of morbid cerebral action in the 
life of this remarkable man. “ lie was,” says his biographer, 
Mr. Lamon, “ readily impressed with the most absurd super- 
stitions.” “ lie lived constantly in the serious conviction that 
he was himself the subject of a special decree, made by some 
unknown and mysterious power, for which he had no name.” 
“ He had great faith in the virtues of the ‘ mad stone,’ although 
he could give no reason for it, and confessed it looked like su- 
perstition.” Twice was his nervous system so disordered, that 
it was necessary, according to the same authority, to withdraw 
him from his business associations, and place him, as had been 
the case with Lord Chatham, in seclusion.(<i) Yet Mr. Lin- 
coln was eminent for shrewd sense, for cool judgment, and for 
wise forethought in business, private as well as public. He 
enjoyed, to an almost unparalleled degree, the confidence not 
merely of those who knew him only by public reputation, but 
of those who thoroughly knew his private history. Ey both 
classes was he trusted with the highest stakes. He possessed 
in singular fulness, if we should judge from this estimate, the 
very qualities which constitute testamentary capacity. Yet 
Mr. Lincoln, on the strictest test above laid down, would have 
been incapable of making a will. 
§ 54. It was the firm belief of Lord Herbert, of Cherbury, 
that a divine vision had indicated to him the correctness of a 
particular course of religious speculation which, on the faith 
of the supposed vision, he published, and which he made the 
basis of his future action. The second Lord Lyttleton was 
equally persuaded that a divine warning had admonished him 
of his approaching death. And no less confident, though less 
serious in its consequences, was the conviction of Philip, 
second Earl of Chesterfield, of the reality of a similar preter- 
natural interference. One night, in the year 1652, he saw 
something white, like a spread sheet, at the head of his bed. 
(c1) The Life of Ahraliam Lincoln, &c., by Ward H. Lamon. Boston: 
J. E. Osgood & Co., 1872, p. 476. 
(d) Ibid., pp. 164, 241, 503. 
55 § 56] 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
[BOOK I. 
He tried to seize it, but it slid away and disappeared. His 
thoughts immediately turning to his wife, who was at Net- 
wortli, with her father, he hurried there, hut was met by a 
servant with a letter from his wife, which informed him that 
precisely the same apparition had appeared to her, and had 
been the cause of the journey of the messenger whom she had 
dispatched to inquire as to his health. 
§ 55. Abercrombie gives an illustration of habitual halluci- 
nation which at the same time was consistent with reason. 
The patient, when he met a person in the street, was uncertain 
whether the latter was a real person or a phantom, though 
with close observation he was able to detect the dissimilarity. 
The features of the real person would be more decided, and 
more complete than those of the phantom ; but the power of 
discrimination by this process was too uncertain to be relied 
on, and the only test of which the patient felt certain was that 
of the voice, footstep, or touch. The phantom had none of these; 
the substance, of course, had all. He had the faculty of re- 
calling his visions at will, by powerfully fixing his attention 
on the conceptions of his mind, but while the hallucination 
could be invoked at will, it could not be arbitrarily dispelled. 
That it was an hallucination, he was perfectly convinced; and 
that it was entirely consistent with general reason was demon- 
strated by his clearness of head and business capacity. 
§ 56. A recent case in this country illustrates the same 
position with remarkable point. A merchant, who had for 
years managed with shrewdness and success an extensive 
business, became thoroughly imbued with the spirit rapping 
and spirit conversing hallucination. Though he conducted 
his business as well as those who were not thus afflicted, his 
family conceived that this and cognate eccentricities made 
him a fit subject for a commission of lunacy. This he soon 
discovered, and laid his plans accordingly. He had theretofore 
done a cash business, and his punctuality and accuracy had 
won him extensive credit. He immediately proceeded to buy 
a large stock of goods from a number of the most sagacious 
business men within his reach, and gave long notes in exchange. 
“ I do not know how it strikes you,” was the way he broached 
the matter to his family, “but whatever may have been your 
56 BOOK I.] 
wills; contracts; delusions. 
[§ 58 
chances once, they are light now. All I have to do is to sub- 
poena my friends to whom I have just given my notes, and 
you may depend upon it, they will not only testify strongly 
as to their opinion of my sanity, but will bring that opinion 
down to this particular hour.” 
§ 57. The cases which have just been noticed comprise 
chiefly those in which, while the hallucination is positive, 
the practical deflection of conduct produced may be slight. 
This, however, cannot be said to be the case with those 
instances in which a supposed supernatural vision or monitor 
is received as a guide on the most momentous actions of life. 
Napoleon declared on many critical occasions that he was 
conscious of the preternatural vision of a star, which some- 
times even appeared in his own cabinet, by which he allowed 
himself to be guided. Bernadotte, beyond doubt, on one 
important movement at least, was swerved from his course by 
the vision of an old woman. Constantine felt or feigned a 
similar impressibility. These cases, it is true, may be suspected ; 
but suspicion cannot be thus cast on the multitudes of brave 
men who were driven in border or highland contests from the 
battle field by a threatening wraith, or who were encouraged 
to the wildest sacrifices by the beckoning of an imaginary 
finger or the invocations of a preternatural voice. 
§ 58. There are, however, other cases in which there is a 
general morbid derangement of all, or of a material portion, 
of the organs. To these, as well as to the great mass of 
instances where hallucination forms the groundwork, the 
observations of De Boismont, on the case of a man who sup- 
posed that he had sunk all his wealth at the bottom of a well, 
apply with great force. “ It may be asked whether, in the 
state of mind in which the patient was, whose history we 
have related, he was capable of making a will. This is a very 
difficult question; but its solution is not an impossibility. 
When the conduct of the individual does not depart from 
received usages, when it is not controlled by one of those false 
ideas that make him hate his relations and friends without 
any motive, and when he regulates his expenses prudently, we 
do not think that whimsical actions, or words, the results of 
an erroneous belief, but having no influence on the prominent 
57 § 60] 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
[book i. 
acts of liis life, should deprive a person of his civil liberties, 
and of the power of making his will.” 
§ 59. Kor should it be forgotten that the effects of such 
incapacitation would be most cruel to the sufferer himself. 
Society is prone enough to make eccentricities and weaknesses 
the subject of contempt, ridicule, or insult. The courts should 
be cautious how, by taking away the power to insure respect, 
they thus increase the misfortune of a class into which no 
man can assure himself he may not fall—which includes 
almost the whole of those whose lot it is to reach extreme 
old age—and which already carries a burden sufficiently heavy. 
If such persons cannot reward by their bounty those by whom 
they are treated with tenderness, and by whose means their 
comfort is guarded, they will lose, in most instances, the only 
means remaining to them of self-preservation. As society at 
present stands, the only remedy seems to be to throw the same 
tender guardianship around the feeble minded and the ec- 
centric as, in a passage elsewhere cited, has been so touchingly 
invoked by Chancellor Kent for the old. 
§ 60. We may therefore hold, in accordance with the tenor 
of the great body of American decisions, as well as with those 
just cited of Sir J. Kicholl and of Chief Justice Cockburn, 
that mental unsoundness, exhibiting itself in insane delusions 
collateral to the subject matter of the will, does not jper se 
destroy testamentary capacity. Such delusions are, indeed, 
incompatible with entire sanity. They would destroy any 
will made under their influence. They cannot be regarded as 
diseases of special organs exclusively, but are the results of 
mental disease as an entirety. But they may nevertheless 
exist in a mind which has sufficient intelligence to be invested 
with testamentary power in respect to all subjects except those 
on which such delusions usually operate, (d1) 
(dl) See infra, §§ 125, 723, 740. Dr. Hammond, in an interesting tract on 
tills particular question, lias reached conclusions which, though we may dis- 
sent from some of his postulates, are in entire coincidence with the present 
state of Anglo-American law. The results, as he states them, are as follows:— 
1. That there is a form of insanity knowm as monomania, which is cha- 
racterized by a perversion of the understanding in regard to a single object, 
or a limited series of objects. 
2. That one of the most prominent features of this species of insanity is a 
58 BOOK I.] 
L§ 61 
LUCID INTERVALS. 
(c1) Lucid intervals.^2) 
§ 61. Unless what in the courts lias been called habitual 
insanity be shown, i.e., such insanity as is, in its nature, con- 
tinuous and chronic, the fact of the existence of a prior period 
of lunacy does not suffice even to throw the burden of proof 
on the party setting up competency.(e) The case, however, is 
otherwise when such habitual insanity is shown to have 
existed; in which case the presumption is that the party was 
insane at the time, and the burden is on those seeking to 
prove the contrary.^1) “If you can establish,” says Sir Vm. 
Wynne, as cited by Mr. Jarman,(/) “that the party afflicted 
habitually by a malady of the mind has intermissions, and if 
there was an intermission of the disorder at the time of the 
act; that, being proved, is sufficient, and the general habitual 
morbid feeling of hatred to friends and relatives, and a disposition to do them 
injury. 
3. That it is especially a symptom of monomania to imbibe delusions which 
exercise a governing influence over the mind of the affected individual, and 
force him to the commission of acts which in a state of sanity he would not 
perpetrate. 
4. That the monomaniac has power to conceal his delusions, and to arrest 
the paroxysms of delirium to which he may be subjected. 
5. That the testator, James C. Johnston, was affected with monomania; 
that he had conceived a dislike to his relatives; that he was subject to delu- 
sions in regard to them ; that he was, in consequence, not free to make a will 
such as he would have made had he been sane; and that he had power to 
conceal his delusions, and to control his paroxysms of delirium. 
6. That there could not possibly have been a lucid interval when the will 
was written, signed, acknowledged, and reaffirmed, because all these acts 
show a continuance of the delusions under which the testator labored.—In- 
sanity in its Medico-legal Relation. Opinion Relative to the Testamentary 
Capacity of the late James C. Johnston, of Chowan County, North Carolina. 
New York, 1866. See also Boardman v. Woodman, 47 N. H. 120. 
(d2) See, for the psychological view of this question, infra, § 744. 
(e) Ackey v. Stephens, 8 Ind. 411 ; Menkins v. Lightner, 18 111. 282 ; State 
v. Wellington, 58 Maine, 658 ; Lewis v. Baird, 3 McLean, 55. 
(e1) Ibid. Hoge v. Fisher, 1 P. C. C. R. 163; Whitenack v. Strikee, 1 
Green, C. R. 8; Harrison v. Rowan, 3 W. C. C. R. 580 ; Gable v. Grant, 2 
Green, C. R. 629; Stevens v. Yancleve, 4 Wash. C. C. R. 262 ; Jackson v. 
Yandusen, 5 Johns. 144; Kelly v. Webster, 8 Shop. 46; 1 Jarm. on Wills 
(2d Am. ed.), 65; Smith v. Tebbitt, Law Rep. 1 Prob. and Div. 434; see, for 
other cases, infra, §§ 246-269. 
(/) 1 Jarm. on Wills (2d Am. ed.), 65. 
59 § 63] 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
[BOOK I. 
insanity will not affect it; but the effect of it is this: it inverts 
the order of proof and presumption; for, until proof of ha- 
bitual insanity, the presumption is, the party agent, like all 
human creatures, was rational; but when an habitual insanity 
in the mind of the person who does the act is established, 
then the party who would take advantage of the fact of an 
interval of reason must prove it.” And in a Massachusetts 
case, Dewey, J., said, “neither observation nor experience 
shows us that persons who are insane from the effect of some 
violent disease, do not usually recover the right use of their 
mental faculties. Such cases are not unusual, and the return 
of a sound mind may be anticipated from the subsiding or 
removal of the disease which has prostrated their minds. It 
is not, therefore, to be stated as an unqualified maxim of the 
law, ‘ once insane, presumed to be always insanebut reference 
must be had to the peculiar circumstances connected with the 
insanity of an individual, in deciding upon its effects upon 
the burthen of proof, or how far it may authorize the jury to 
infer that the same condition or state of mind attaches to the 
individual at a later period. There must be kept in view the 
distinction between the inferences to be drawn from proof of 
an habitual or apparently confirmed insanity, and that which 
may be only temporary.”(y) 
§ 62. When a lucid interval is set up as the period in which 
a will was executed, it being considered that the testator was 
previously habitually insane, it is necessary to show not 
merely a cessation of the more violent symptoms of the 
disease, but a restoration of the faculties, at the very period 
of such execution.(A) But it is sufficient if the restoration be 
merely to a state of mind inferior to that formerly possessed 
by the patient. It is enough if he have a disposing mind.(i) 
§ 63. Where no extraneous influence is shown to have been 
(g) Hix v. Whittemore, 4 Mete. 545. 
(7i) Hall v. Warren, 9 Yes. 611 ; Holyland, ex parte, 11 Yes. 11 ; Stead v. 
Calley, 1 Keen, 620 ; Ilaclen v. Hays, 9 Penn. St. 151 ; Gangwere’s Estate, 
14 Penn. St. 417; Gornbault v. Public Adm., 4 Bradf. Sur. 226 ; see infra, 
§ 246. 
(0 Holyland, ex parte, 11 Vesey, 11; Lilly v. Waggoner, 27 111. 395 ; see 
infra, § 744. 
60 BOOK I.j 
CONTRACTS; INTOXICATION. 
[§ 65 
exerted, the character of the act itself, as will soon he noticed, 
goes far to determine the capacity of the party at the particular 
time. Thus Dr. Lushington said:{J) “In the opinion of a 
very great judge, Sir William Wynne, in the celebrated case 
of Cartwright v. Cartwright, he said where a rational act was 
done in a rational manner, such was the strongest and best 
proof which could arise even as to a lucid interval. How, I 
cannot say that I subscribe altogether to this observation of 
Sir William Wynne, for I do not, but it is entitled to great 
weight; and, to a certain extent, a rational act done in a 
rational manner, though not, I think, the strongest and best 
proof of a lucid interval, does contribute to the establishment 
of a lucid interval.” And, generally, the rational character 
of a will, emanating directly from a testator afflicted with 
insanity, gives in itself a strong presumption of a lucid 
interval, (k) 
§ 64. In case of idiocy, a slightly different rule seems laid 
down. Thus, in a late case, the evidence showed that the 
deceased was, in 1815, placed in confinement as an idiot, and 
there remained till 1817, when he was released. In 1820, 
about which time he was proved to have committed certain 
rational acts of business, he made a rational will. In 1822, 
he was again placed in confinement, and so remained till his 
death, in 1849. In 1838 he was found, on a commission, to 
have been of unsound mind, without lucid intervals, since 
1815. The will was sustained, on the ground, that, though it 
is otherwise with regard to lunacy, yet, when idiocy is set 
up, it is disproved by contemporaneous intelligent acts of 
business.(7) 
(dl) Intoxication. 
§ 65. As has been already incidentally observed, intoxica- 
tion, when at the time complete, renders a party incompetent 
to make a contract or execute a will.(m) It is true that most 
(j) Bannatyne v. Bannatyne, 1G Jur. 864, 14 Eng. Law and Eq. 581. 
(&) Nichols v. Binno, 1 Sw. and Tr. 239. See infra § 83. 
(J,) Bannatyne v. Bannatyne, 16 Jur. 864, 14 Eng. Law and Eq. 581. 
(to) See Menkins v. Lightner, 18 111. 282. 
61 § 65] 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
[BOOK I. 
of the cases go on the ground of express or implied fraud, so 
far as acts inter vivos are concerned; for it is certainly only a 
little less culpable to enforce a bargain made with a drunken 
man than it is to make him drunk on purpose to secure it.(n) 
But the general position is well expressed by Pothier:(o) 
“ Drunkenness,” he says, “ when it goes so far as absolutely to 
destroy the reason, renders a person, so long as it continues, 
incapable of contracting, since it renders him incapable of 
consent. ”(p) So rigorously has this doctrine been applied, 
that it was even held that such drunkenness is a defence by 
an indorser of a note against an innocent and bona fide 
though, when a man is sober enough to write his own name 
correctly, it will require strong evidence of stupefaction or 
delirium to induce a jury to sustain his irresponsibility against 
an innocent third party. But drunkenness, though it is a 
shield, cannot be made an offensive weapon; and the law will 
not permit a man to use his drunkenness as a means of cheat- 
ing others. Thus, a man, who after buying goods when 
drunk retained them when sober, was held responsible for the 
price.(r) The distinction in this respect is thus stated by Vice- 
Chancellor Stuart: “The principles acted upon in Cook v. 
Clay worth were, that a party being in liquor when he entered 
into an agreement was no reason for the court to refuse a de- 
cree for specific performance, and they pointed out the rule to 
be acted on in these cases. In Cory v. Cory, and, subsequently, 
in Hagle v. Baylor, the same rule had been acted upon. The 
course of the court had been, in cases of this kind, that it 
would not assist a person who had obtained or wished to get 
rid of an agreement or deed on the mere ground of intoxica- 
tion ; but only where any contrivance was used to draw him 
in to drink, or any unfair advantage taken of his situation, or 
in that extreme state of intoxication which deprived a man of 
(n) Parke, B., Gore v. Gibson, 13 M. & W. 626; 2 Greenleafon Ev. § 170; 
Pitt v. Smith, 3 Campb. 33; Fenton v. Halloway, 13 Stark, 126. 
(o) Obligations, N. 49. 
(p) See also Cliitty on Contracts, 112 ; Story on Contracts, 27. 
(g) Sentance v. Poole, 3 C. & P. 1. See infra, 69. 
(r) Alderson, B., Gore v. Gibson, ut supra. 
62 BOOK I.] 
CONTRACTS; INTOXICATION. 
[§ 69 
his reason, did the court But, when a party, 
though thus imposed on when drunk, elects when sober to 
ratify, he cannot afterwards repudiate.^1) 
§ 66. Thus we may generally say that where a person, when 
obviously drunk, has been induced by fraud or imposition to 
execute a contract, equity will intervene to relieve him from 
its execution.(7) And the court will presume fraud in one 
who induces a man obviously drunk to make a contract.(w) 
§ 67. But drunkenness, without fraud, will not induce a 
court of equity to intervene, when a fair contract has been 
And this rule, so far as concerns contracts for 
necessaries, is absolute. 
§ 68. So drunkenness does not render a deed void absolutely, 
when made under its influence, but renders it voidable only. 
A deed made by a person when drunk to such an extent as 
would authorize him to repudiate it, may be ratified by the 
maker when sober so as to bind him and his personal repre- 
sentatives ; and even if a man is so much intoxicated as not to 
know what he is doing, he may afterwards confirm such deed 
by his acts.^1) 
The defence of drunkenness, like that of infancy, duress, 
imbecility, &c., is a personal one, and if the party whose in- 
terest is affected by a contract made when drunk chooses to 
abide by it when sober, third persons are not permitted to in- 
terpose.^) 
§ 69. Where the indorsee sues the maker of a promissory 
note, and drunkenness is set up as a defence, it is said in 
Connecticut that the defence must prove excessive or complete 
(s) Sliaw v. Tliackray, 23 Eng. Law and Eq. 18, S. C., 1 Sm. & G. 537; 
17 Jur. 1045. 
(s') Willoughby ». Moulton, 47 N. H. 295. 
(t) Johnson v. Medlicott, 3 P. Wms. 130 ; Cook v. Clayworth, 13 Yes. 12 ; 
Dorr v. Munsell, 13 Johns. 430; Birdsong v. Birdsong, 2 Head, Tenn. 289; 
Seymour ®. Delaney, 3 Cow. 445; Morrison v. McLeod, 2 Dev. & Bat. 221; 
Conant v. Jackson, 16 Yt. 335; Ford v. Hitchcock, 8 Ohio, 224; Calloway v. 
Witherspoon, 5 Ired. Eq. 128. 
(u) Gore v. Gibson, 13 M. & W. 623. 
(v) Ibid.; Shaw v. Thackray, ut supra ; Hutchinson «. Brown, 1 Clarke, 
408 ; Rodman v. Lilley, 1 Saxton, 320. 
(vl) Eaton’s Adm. v. Perry, 29 Mo. 96. (w>) Ibid. 
63 §^1] 
MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
[book i. 
drunkenness; a less degree of intoxication is not sufficient. 
It would be otherwise, however, where the payee sues the 
maker, (z) 
§ 70. “ The doctrine,” says Mr. Browne (1871), in his work 
on the Medical Jurisprudence of Insanity,(y) “ that a person 
who has contracted, even by deed, whilst intoxicated to the 
extent of being no longer under the guidance of reason, and 
of being incapable of judging of the consequences of his act, 
may successfully dispute his liability in respect of such a trans- 
action, is establislied.(z) So, by the law of Scotland, drunken- 
ness will be a ground for setting aside a marriage entered into 
by a party in a state of intoxication.(u) There has been a 
distinction drawn between express and implied contracts in so 
far as the capacity to contract during a period of intoxication 
is concerned. When the right of action, it has been said, is 
founded upon a specific distinct contract requiring the assent 
of both parties, and one is so drunk as not to be able to assent, 
there can be no binding contract, but in many cases the law 
does not require an actual agreement between the parties, but 
implies a contract from the circumstances; in fact, the law 
itself makes the contract for the parties. Thus, in actions for 
money had and received to the plaintiff’s use, or money paid 
by him to the defendant’s use, the action may lie against the 
defendant even though he may have protested against such a 
contract.” 
So a tradesman who supplies a drunken man with necessa- 
ries is entitled to recover the price of them if they are re- 
tained by the party after the intoxication has passed away. 
It is to be remembered that there is a strong presumption of 
fraud in the case where a person has taken an obligation from 
an individual intoxicated, at the time known by the contrac- 
tors to be so.(6) 
(%) Caulkins v. Fry, 35 Conn. 170 ; supra, § 65. (y) P. 257. 
(s) Gore v. Gibson, 13 M. & W. 625; per Sir W. Grant, M. R. Cooke v. 
Clayworth, 18 Yes. 15, 16, followed by Sir E. Sugden in Nagle v. Baylor, 3 
Dr. & W. 64 and 65 ; Shaw v. Tliackray, ut supra. 
(a) Ersliine’s Principles, Smith’s edition, p. 109 ; Johnstone, 2 S. 495. 
(b) Levy v. Baker, Moo. & M. 106 n., per Parke, B., 13 M. & W. 126. See 
Sentance v. Poole, 3 Car. & P. 1. See also Story, §§ 230, 231, 233. 
64 BOOK I.] 
wills; intoxication. 
[§ 72 
§ 71. In actions, however, for torts (i. e., cases where the gist 
is personal injury), drunkenness is no defence to the merits. 
Thus, if a man is sued for injury to my property or person, it 
is no defence that he was drunk at the time, for the policy of 
the law is both to redress such wrongs and to discountenance 
intoxication.(c) And the plaintiff may even introduce the 
fact of drunkenness as an aggravating item, when the question 
is whether proper care was used in avoiding an accident. 
Thus, in a suit for injury to the plaintiff by running a sleigh 
against him, a very eminent American judge, Gibson, C. J., 
said, “The evidence of intoxication ought to have been re- 
ceived, not because the legal consequences of a drunken man’s 
acts are different from those of 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 par- 
tially bereft of his faculties would be less observant than if he 
were sober, and less regardful of the safety of others. For this 
purpose, but certainly not to inflame the damages, the evidence 
ought to have been admitted.”(<i) The fact that the defendant 
in an action of slander was intoxicated at the time of speaking 
the slanderous words, constitutes no defence to the action.^1) 
§ 72. Drunkenness to such an extent as to render a party 
unconscious of what he is engaged in, or drunkenness even to 
a slight degree, when its effect is to render a party subject to 
the influence of others, avoids a will ;(e) though the mere fact 
of the testator being at the time under the influence of liquor 
will not suffice, unless consequent disability be proved.(/) 
Long-continued prior habits of intoxication, also, will not of 
themselves afford a presumption of incapacity, unless the tes- 
tator was proved to have been drunk at the time.(y) The 
(c) Co. Lit. 247(a) ; 4 Rep. 124,(5) ; 4 Bl. Com. 25. As to insanity, see 
Morse v. Crawford, 17 Vt. 499. 
(d) Wynn v. Allard, 5 W. & S. 525. 
(<Z‘) Reed v. Harper, 25 Iowa, 87. 
(e) Shelford on Lunacy, 274, 304. 
(/) Shelford on Lunacy, 276 ; Starret v. Douglass, 2 Yeates, 48 ; Andress 
v. Weller, 2 Green, C. R. 604; Gardner v. Gardner, 21 Wend. 526; Peck v. 
Carey, 29 New York, 9. 
(g) Ibid. ; Black v. Ellis, 3 Hill, S. C. 68; Ayrey v. Hill, 3 Addams, 206 ; 
Shelford on Lunacy, 276. See Ritter’s Appeal, 59 Pa. St. 9. 
vol. i.—5 
65 §73] 
MENTAL UNSOUNDNESS; CONTRACTS; WILLS. [BOOK I. 
reason of this distinction between drunkenness and insanity 
is well pointed out by Sir John Mclioll. Insanity, be argued, 
may often be latent, whereas there can scarcely be such a thing 
as latent ebriety; and, consequently, all that is required to be 
shown, in ordinary cases, is the absence of excitement at the 
time of the act done; at least, the absence of excitement in 
any such degree as would vitiate the act done; “ for,” he said, 
“ I suppose it will be readily conceded that, under a mere 
slight degree of that excitement, the memory and the under- 
standing may be, in substance, as correct as in the total absence 
of any exciting cause. Whether, where the excitement in 
some degree is proved to have actually subsisted at the time 
of the act done, it did or did not subsist in the requisite de- 
gree to vitiate the act done, must depend, in each case, upon a 
due consideration of all the circumstances of that case in par- 
ticular ; it belonging to a description of cases that admits of 
no more definite rule, applicable to the determination of them, 
than the one I have suggested, that I am aware of.”(A) Where 
the will was executed under the influence of drink intention- 
ally and fraudulently administered, of course it falls, by the 
operation of a rule already noticed with regard to contracts; 
but where such is not the case, actual derangement of the rea- 
soning faculties, arising from undue excitement, must be 
shown.(z) Certainly the effect would be most deleterious if 
the mere existence of excitement produced by stimulants was 
held to vitiate any act performed during its continuance. 
§ 73. In a trial before Lord Campbell, at nisi prius, a will(j) 
being impeached on the ground the testator’s mind was im- 
paired by drinking, it appeared that the testator had been 
frequently drunk, had had an attack of delirium tremens a few 
days before the execution of the will, and that the will was 
drawn by a son of the principal devisee, at the latter’s house, 
he being an old friend of the testator. Lord Campbell ruled 
that the question was simply whether the testator was sane 
and sensible at the time of making the will, and able to under- 
(h) Jarman on Wills (2d ed.), 54. 
(i) Wheeler v. Alderson, 3 Hagg. 602. 
(j) Handley v. Stacey, 1 F. & Fin. 574. 
66 BOOK I.] 
UNDUE INFLUENCE AND FRAUD. 
[§ 76 
stand its contents. If so, and if the will was his spontaneous 
act, free from force or fraud, it was valid. 
§ 74. The will of a certain R. L. Peck was admitted to pro- 
bate by the Surrogate of the City and County of Hew York. 
The probate was contested on the ground that the testator was 
intoxicated at the time the will was made. The case came 
before the Court of Appeals in 1863, and on this point C. J. 
Denio said: “ It is not to be understood that a will made by 
one, who is at the time under the influence of intoxicating 
liquor, is, for that reason, void. Intoxication is said to be 
temporary insanity. The brain is at the time incapable of 
performing its proper functions; but that species of derange- 
ment ceases, when the exciting cause is removed, and sobriety 
brings with it a return of reason. In order to avoid a will 
made by an intemperate person, it must be proved that he was 
so excited by liquor, or so conducted himself during the par- 
ticular act, as to be, at the moment, legally disqualified from 
giving effect to it.”(&) 
§ 75. In analogy with the principles stated above, it has 
been held that mental incapacity on the part of the testator, 
when produced by the use of medicines, is sufficient to inva- 
lidate his will.(^) 
(e1) Undue influence and fraud. 
§ 76. While the learned judge who tried Lord Portsmouth’s 
case, which has just been cited, came to the conclusion that 
Lord Portsmouth was of “ unsound mind,” the position was 
broadly taken by him that weakness alone, when circum- 
vented by fraud, would be sufficient to invalidate even so 
solemn a contract as marriage, and on this position his decision 
in part rested. Still more unequivocal was the decree of the 
Privy Council in dismissing an appeal from the Court of Chan- 
cery of the Isle of Man, setting aside two deeds, on the ground 
that the grantor in both of them was of unsound mind at the 
time he executed them, and that they were obtained from him 
by fraud and undue means. The evidence showed that the 
(&) Peck v. Cary, 27 New York, 17. 
(i) Stedkam v. Stedliam, 32 Ala. 525. 
67 § 76] 
MENTAL UNSOUNDNESS; CONTRACTS; WILLS. 
[book i. 
grantor, an old man, feeble both in body and mind, separated 
from all his relations, without a friend to advise him, and sur- 
rounded by those only who were contriving to get his fortune, 
conveyed away nearly all that he was possessed of, even the 
house he lived in, to persons not related to him, either by blood 
or marriage; and all his estate in lease was to become the pro- 
perty of the same strangers after his death. The considera- 
tion of £100 was inserted for conveying away property worth 
£1400; and this was not to be paid to the grantor, but to his 
executor after his death, without any interest being charged 
on it in the mean time. Lord Wynford, in giving the opinion 
of the Privy Council, said, that the law would “not assist a 
man who is capable of taking care of his own interests, except 
in cases where he has been imposed upon by deceit, against 
which ordinary prudence could not protect him. If a person 
of ordinary understanding, on whom no fraud has been prac- 
tised, makes an improvident bargain, no court of justice can 
release him from it. Inadequacy of consideration is not a 
substantial ground for setting aside a conveyance of property. 
But those who, from imbecility of mind, are incapable of 
taking care of themselves, are under the special protection of 
the law. The strongest mind cannot always contend with 
deceit and falsehood; a bargain, therefore, into which a weak 
one is drawn under the influence of either of these, ought not 
to be held valid, for the law requires that good faith should 
be observed in all transactions between man and man. If this 
conveyance could be impeached on the ground of the imbe- 
cility of the grantor only, a sufficient case has not been made 
out to render it invalid; for the imbecility must be such as to 
justify the jury, under a commission of lunacy, in putting his 
property and person under the protection of the Chancellor; 
but a degree of weakness of intellect far below that which would jus- 
tify such a proceeding, coupled with other circumstances to show 
that the weakness, such as it was, had been taken advantage of will 
be sufficient to set aside any important deed.”(m) This same view 
has been uniformly acted on in the English and American 
courts, and it is expressed by Mr. Justice Story with his usual 
(m) Blacliford v. Christian, 1 Knapp’s Rep. 73 ; Shelford on Lunacy, 272. 
68 BOOK I.] 
UNDUE INFLUENCE AND FRAUD. 
[§ 77 
felicity.(n) “ The acts and contracts of persons who are of 
weak understandings, and who are thereby liable to imposi- 
tions, will be held void in courts of equity, if the nature of 
the act or contract justify the conclusion, that the party has 
not exercised a deliberate judgment, but has been imposed 
upon, circumvented, or overcome by cunning or undue influ- 
ences. ”(o) But, when articles furnished are suitable necessaries, 
the estate of a person of weak mind is liable, if there be no 
fraud.(p) 
§ 77. With even greater emphasis has the same doctrine 
been announced by courts of law in respect to wills. Pecu- 
liarly liable as is a dying man, even though his intellect be of 
average strength, to have his comfort destroyed, if not his 
purpose overturned, by those in whose society he is placed, the 
policy of the law has anxiously sought for every safeguard by 
which such intrusions upon the sanctity of dissolution, as well 
as upon the rights of families, can be deprived of motive. 
“ The same memory for the making of a will,” agreed all the 
judges of England at an early date, “ is not at all times when 
the party can answer to anything with sense, but he ought to 
have j udgment to discern and to be of perfect memory, other- 
wise the will is void. ”(q) “ He ought to have a disposing 
memory,” said Lord Coke, “ so that he is able to make a dis- 
position of his lands with understanding and reason; and that 
is such a memory as the law calls sane and perfect.”(r) While, 
(n) 1 Story Eq. Juris. § 238. 
(<?) See also 1 Fonbl. Eq. B. 1, ch. 2, § 3 ; Holland v. Miller, 12 La. An. 624. 
(p) Skidmore v. Romaine, 2 Bradf. (N. Y.) 122. 
(q) Combe’s case, Moore R. 759. 
(r) Marquis of Winchester’s case, 6 Rep. 24; 2 Buis. 211. The same point 
is put with still greater simplicity by Judge Washington: “Had he a dis- 
posing memory—was he capable of recollecting the property he was about to 
bequeath, the manner of distributing it, and the objects of his bounty?” 
(Stevens v. Yancleve, supra, § 20.) Proof, however, of intellect having 
been impaired by disease, or of intellectual feebleness alone, will not avail by 
itself to defeat a will, when adequate capacity remains. Sloan v. Maxwell, 2 
Green. Ch. 562 ; Andrews v. Weller, ibid. 634; Dunick v. Reiclienback, 10 
S. & R. 84. The cases will be found enumerated in 1 Powell on Devises, 
127 ; Shelford on Lunacy, 275-6; 4 Kent’s Com. 566 ; 1 Jarman on Wills, 28. 
See also Converse v. Converse, 21 Vt. 168; Horne v. Horne, 9 Ired. 99; Har- 
rison v. Rowan, 3 W. C. C. R. 580 ; Grabil v. Barr, 5 Barr, 441 ; Denn v. Jolm- 
69 §77] 
MENTAL UNSOUNDNESS; CONTRACTS; WILLS. 
[BOOK I. 
therefore, it is only necessary that there should he the capacity 
of reasonable disposition, great jealousy has been exercised for 
the correction of extraneous influence on the testator. Thus 
wills have been set aside when they were preceded by over- 
importunity of friends standing in confidential relations,(s) 
where the housekeeper and physician were shown to have 
earnestly urged a non-natural scheme of distribution ;(t) where 
the wife in fact dictated the will, the testator being at the 
time unable to speak, she pretending to understand him, and 
making herself the sole devisee for life, and imposing as a de- 
visee in remainder a fictitious niece ;(u) where one relation 
produced the disinheritance of another by false representations 
as to his character ;(v) where the testator was old and feeble, 
and the will was made under the directions and to suit the 
purposes of a colored woman in the family,(w) and where a 
husband exercised In short, whenever the pro- 
visions of a will are inconsistent with natural justice, it will 
require strong proof of capacity and volition to sustain it, and 
slight proof of undue influence or fraud to set aside.(y) "Where 
a presumption of imposition exists, e. g., from the fact of the 
penman of the will taking a pecuniary benefit under it, the 
courts exact “ the most decisive proof of the complete absence 
of influence and excitement at the preparation and making of 
the asserted will, and must require unimpeachable evidence of 
son, 2 South. 454; Kinne ©. Kinne, 9 Conn. 102; Ford v. Ford, 7 Humph. 
92 ; Howard v. Coke, 7 B. Monr. 665 ; Blanchard v. Nestle, 3 Denio, 37 ; 
Modern Probate of Wills, 91. In Scotland an arbitrary test is applied, it 
being there provided that no settlement or gift executed after the commence- 
ment of the disease of which a person dies, except those in the ordinary ad- 
ministration of the estate, shall be valid. If the testator survives sixty days 
afterwards, or has been to market unsupported, the will is validated. Bell’s 
Diet. “Death Bed.” 
(s) Hacker v. Newborn, Style, 427; Bates v. Bates, 27 Iowa, 110. 
(<) Ex parte Fearon, 5 Yes. 633. 
O) Scribner v. Crane, 2 Paige C. C. R. 147. 
(v) Dietrick v. Dietrick, 5 S. & R. 207; Nussear ©. Arnold, 13 S. & R. 323; 
Patterson v. Patterson, 6 S. & R. 55. 
(m) Denton ©. Franklin, 9 B. Monr. 28. 
(x) Marsh v. Tyrel, 2 Hag. Ec. 84, 141. 
(y) Brydges v. King, 1 Hag. Ec. R. 256; Goble v. Grant, 1 Green C. R. 
629 ; Baker v. Lewis, 4 Rawle, 356. 
70 BOOK I.] 
71 
UNDUE INFLUENCE AND FRAUD. 
unbiassed volition and of clear capacity, and must expect it to 
be shown by instructions coming from the deceased him- 
To authorize a will in favor of a wife, however, to 
be set aside, the influence alleged to have been exerted, must 
be shown to have reached coercion, destroying the husband’s 
free agency,(a) or fraud itself must be proved.(6) In ordinary 
cases also, it will not be enough to prove mere influence, with- 
out proof of fraud or contrivance,(61) or such coercion as de- 
stroys free agency.(c) “ Honest intercession and persuasion,” 
“ and fair and flattering speeches,” though abundantly proved 
to have been used, do not affect the instrument’s validity.(<i) 
The fact of the paper being entirely in a party’s handwriting 
gives a strong presumption of independent sanity, which is 
not effaced by proof of generally impaired intellect, nor by 
the fact, that, when the paper is a will, in it omissions of pro- 
perty exist.(e) The same presumption exists when the testa- 
tor has a distinct recollection, at the time of the execution of 
the will, of the terms he directed at the time it was pre- 
pared^/) 
§ 78. In an issue, tried in Pennsylvania in 1862, on the 
validity of a writing purporting to be a will, a party set up 
as a defence great imbecility in the testatrix, and undue in- 
fluence and actual duress. The case came before the Supreme 
Court on a writ of error, and on the point of undue influence 
Judge Strong said: “How, that is undue influence which 
amounts to constraint, which substitutes the will of another 
(2) Dodge v. Meech, 1 Hag. E. R. 620; Barry v. Butlin, 1 Curtis, 637; see 
2 Jarman on Wills (Am. ed.) 421. 
(a) Clarke v. Sawyer, 3 Sanf. Ch. R. 351; Gardiner v. Gardiner, 22 Wend. 
526. 
(b) Scribner v. Crane, 2 Paige C. R. 147. 
(51) Lowe v. Williamson, 1 Green C. R. 82 ; Blanchard v. Nestle, 3 Denio, 
37 ; 1 Jarman on Wills (2d Am. ed.) 36 ; 1 Williamson on Exs. (2d Am. 
ed.) 37. 
(c) Brown v. Mollison, 3 Wh. 129; Potts v. House, 6 Georg. 324; Wood- 
ward v. James, 3 Strob. 552; see 1 Jarman on Wills (2d Am. ed.) 36, though 
see Hall v. Hall, 38 Aleb. 131. 
(d) 1 Jarman on Wills (2d Am. ed.) 37. 
(e) McDaniel’s Will, 2 J. J. Marsh, 331; Fullock v. Allison, 3 Hag. 527. 
(/) Hathorn v. King, 8 Mass. 371. 
71 [BOOK I. 
72 
MENTAL UNSOUNDNESS; CONTRACTS; WILLS. 
for that of the testator.” “ It may be either through threats 
or fraud, but, however exercised, it must, in order to avoid a 
will, destroy the free agency of the testator at the time when 
the instrument is In a prior case,(A) Judge Wood- 
ward said: “ It must be a present constraint, operative on the 
mind of the testator in the very act of making the testa- 
ment.” 
§ 79. So, in Alabama, it has been said, that to set aside a 
will on the ground of undue influence, it must be shown that 
the influence exerted on the mind of the testator was equiva- 
lent to moral coercion, and constrained him, through fear, the 
desire of peace, or some other feeling than affection, to do that 
which was against his will.(A1) 
§ 80. In an appeal in the Kentucky Supreme Court in 1864 
from the Circuit Court, setting aside a certain will which had 
been admitted to probate, the evidence showed that the tes- 
tator’s second wife, to whom he devised the bulk of his pro- 
perty, had continually solicited him to make a will. lie 
always resisted, saying he would never make a will. On one 
occasion the wife said that “ the old devil” would not do as 
she wished. The distributions in the will were very unjust. 
Robertson, J., said: “ For such gross inequality no reason is sug- 
gested in the document itself, or by proof on the trial. The 
testator had an unquestionable powTer to make such a will. 
But its apparent unreasonableness requires satisfactory evi- 
dence that it was the free and deliberate offspring of a rational, 
self-poised, and clearly disposing mind.” The court approved 
of the decision of the Circuit Court setting aside the will.(z) 
§ 81. It was, however, ruled in 1866 in Maryland, that, in 
order to invalidate a will, on the ground of importunity used 
in influencing its execution, the evidence must show that the 
importunity was of such a degree as to take away from the 
testator his free agency.(/) And in a case in 1868 in Massa- 
chusetts, where this point arose, and where it appeared that 
(g) Eckert v. Flowry, 43 Penn. 46. 
(ft) McMalion v. Ryan, 8 Harris, 329. 
(ft1) Hall ®. Hall, 38 Alabama, 131. 
(») Barrel v. Harrel, 1 Duvall (Ky.) 203, 
(j) Whitman v. Gooclliand, 26 Md. 95. 
72 BOOK I.] 
PRESUMPTIONS FROM CHARACTER OF ACT. 
[§ 83 
the testatrix was seventy-eight years old, Colt, J., said that the 
requisite mental qualification to make a will might exist, and 
be entirely consistent with such a degree of weakness, or such 
peculiarity, as would make the party the easy victim of fraud 
and improper influence. He held that it is doubtful whe- 
ther the existence and exercise of undue influence do not 
necessarily presuppose weakness of mind, and whether the 
acts of one who was in all respects sound can be set aside on 
that ground in the absence of proof of fraud or imposition. 
And it is certain that, however ingenious the fraud or coer- 
cive the influence may be, it is of no consequence, if there are 
intelligence enough to detect and strength enough to resist 
them.(/c) 
(f1) Presumptions. 
(a2) From character of act. 
[See, as to sanity generally, this presumption discussed infra, 
§§ 339-410.] 
§ 83. It should be kept in mind, that the question of com- 
petency is intimately aflected by the character of the act or 
instrument which it is sought to annul. A reasonable mar- 
riage, such as that of Lord Portsmouth to his first wife, 
entered upon under the advice of his family, and to a person 
every way competent to secure his position and his character 
from disgrace or injury, may be sustained; while an unsuita- 
ble one, to a woman of light character, will be set aside, when 
it appears that it was influenced by overpowering authority or 
trickery. A will making a just distribution of an estate will 
be held per se strong evidence of disposing capacity, while one 
turning the testator’s property into an unnatural channel 
gives at least some presumption to the contrary.(7) This is 
broadly stated by Sir John Nicoll, in a case(m) where he de- 
(k) Shailer v. Bumstead, 99 Mass. 112. 
(l) Stewart ®. Lispenard, 26 Wend. 255 ; Means v. Means, 5 Strobli. 167 ; 
Roberts v. Trawick, 13 Ala. 68; Couch v. Couch, 7 ibid. 519; Bannatyne v. 
Bannatyne, 16 Jur. 864, 14 English Law and Eq. R. 581. See Nichols v. 
Binns, 1 Sw. & Tr. 239. See supra, § 80. 
(to) Scruby v. Fordham, 1 Addams, 90. 
73 74 
MENTAL UNSOUNDNESS; CONTRACTS; WILLS. [BOOK I. 
dares, that, where a will is traced into the hands of a testator 
whose sanity is fairly impeached, hut of whose sanity or in- 
sanity at the time of doing or performing some act with rela- 
tion to the will, there is no direct evidence, the agent is to be 
inferred rational, or the contrary, from the character of the 
act. (w) 
§ 84. But, while the apparent injustice of a testator to mem- 
bers of his family is a circumstance to be taken into con- 
sideration in examining the question of his soundness of 
mind at the time of making a disposition of his property by 
will, it must not be forgotten that a man has a right by law 
to make whatever disposition of his property he chooses, how- 
ever absurd or unjust.(o) 
Thus, in a case in 1859 in New Jersey, an issue was raised 
as to the sanity of a testator at the time he made his will 
under which the defendants claimed title, and in his opinion 
Judge Whelpley said: “If he had capacity to make a will, 
that capacity was sufficient to enable him to make any will, 
no matter how unjust or unreasonable its provisions may seem 
to others. A testator has a right to make an unreasonable, 
unjust, injudicious will, and his neighbors have no right, sit- 
ting as a jury, to alter the disposition of his property, simply 
because they think he did not do justice to his family con- 
nections. Unless the will on its face carries clear marks of 
being the product of a diseased mind, its injustice, its unrea- 
sonableness, ought not to be the foundation of a verdict against 
it*”(jp) 
§ 85. Erskine, J., in the case of Harwood v. Baker,(q) where 
a will had been executed in favor of a second wife, to the ex- 
clusion of other relatives, the testator being in a state of weak- 
ened capacity, rendering him incapable of exertion unless 
roused, said: “ Their lordships are of the opinion, that, in order 
to constitute a sound disposing mind, a testator must not only 
be able to understand that he has, by his will, given the whole 
of his property to one object of his regard, but he must also 
(n) See generally 1 Jarman on Wills (2d Am. ed.) G9, and supra, § 61. 
(o) Gamble v. Gamble, 39 Barbour, 273. 
(p) Boylan v. Meeker, 4 Dutclier, 274. (q) 3 Moore P. C. 282. 
74 BOOK I.] 
PRESUMPTION FROM CHARACTER OF ACT. 
[§ 86 
have capacity to comprehend the extent of his property, and 
the nature of the claims of others whom, by his will, he is 
excluding from all participation in that property, and that the 
protection of the law is in no cases more needed than it is in 
those where the mind has been too much enfeebled to compre- 
hend more objects than one, and more especially when that 
object may be so forced upon the attention of the invalid as to 
shut out all others that might require consideration. And 
then—for the question which their lordships propose to decide 
in this case is, not whether Mr. Baker knew when he executed 
this will that he was giving all the property to his wife, and 
excluding all his other relations from any share in it, but whe- 
ther he was at that time capable of recollecting who those 
relations were, of understanding their respective claims upon 
his regard and bounty, and deliberately forming an intelligent 
purpose of excluding them from any share of his property—if 
he had not the capacity required, the propriety of the disposi- 
tion made by the will is a matter of no importance. If he had 
it, the injustice of the exclusion would not affect the validity 
of the disposition, though the justice or injustice of the dispo- 
sition might cast down some light upon the question as to his 
capacity.” 
§ 86. Eccentric and even whimsical clauses in a will do not 
operate, per se, to annul it, the testator’s capacity being other- 
wise indisputed. Thus, in England, and by Sir Herbert Jen- 
ner Fust, it was held to be not destructive of the hypothesis 
of sanity, that the testator should have directed that his ex- 
ecutors should “ cause some parts of his bowels to be converted 
into fiddle-strings—that others should be sublimed into smell- 
ing salts, and that the remainder of his body should be vitri- 
fied into lenses for optical purposes.” The court, in admitting 
the will to probate, wTas governed by evidence that the testator 
had been marked by great business shrewdness, and that he 
was regarded by his associates as a man of indisputable capa- 
city. His own explanation of this extraordinary provision, 
given in a letter attached to the will, was that “the world 
may think this to be done in a spirit of singularity or 
whim, but I have a mortal aversion to funeral pomp, and 
75 76 
MENTAL UNSOUNDNESS AS TO WILLS. 
[book i. 
I wish my body to be converted into purposes useful to man- 
kind.”^) 
(b2) From old age. 
§ 87. Testamentary incapacity does not necessarily presup- 
pose the existence of insanity, in its technical sense. Weak- 
ness of intellect from extreme old age, whether arising from 
great bodily infirmity, or from intemperance, when it disqua- 
lifies the testator from knowing or appreciating the nature, 
effect, or consequences of the act he is engaged in, works a 
similar disability.(i) Great caution, indeed, should be used, 
lest the existence of extreme old age should lead the medical 
witness to presume consequent imbecility. Against such a 
sequence the policy of the law and the interests of humanity 
unite in protesting. “ It is one of the painful consequences 
of extreme old age,” very beautifully said Chancellor Kent, in 
one of his earlier judgments, “ that it ceases to excite interest, 
and is apt to be left solitary and neglected. The control which 
the law still gives to a man over the disposal of his property, 
is one of the most efficient means which he has in protracted 
life to command the attention due his infirmities. The will 
of such an aged man ought to be regarded with great tender- 
ness, when it appears not to have been procured by fraudulent 
acts, but contains those very dispositions which the circum- 
stances of his situation and the course of the natural affections 
dictated. ”(J) 
§ 88. “ Great age, alone,” adds a very enlightened and hu- 
mane jurist, Judge Bradford, “ does not constitute testamen- 
tary disqualification; but, on the contrary, it calls for protec- 
tion and aid to further its wishes, when a mind capable of 
acting rationally, and a memory sufficient in essentials, are 
shown to have existed, and the last will is in consonance with 
(h) Morgan v. Boys, Taylor, Med. Jur. 657, cited 1 Redfield on Wills, 
chap. 14, § 11. Judge Redfield thinks that “this must be regarded as a most 
charitable view of the testator’s mental capacity, and which an American 
jury would not readily be induced to adopt.” And see supra, § 44. 
(i) Leech v. Leech, 11 Penn. Law J. 177. See in this connection Dr. Day’s 
‘ ‘ Practical Treatise on the Domestic Management of the Most Important Dis- 
eases of Advanced Life.” T. & W. Boome, London. 1849. 
(j) Yan Alst v. Hunter, 5 Johns. Ch. 148. Seeposi, § 104. 
76 BOOK I.] 
PRESUMPTION FROM OLD AGE. 
[§ 90 
definite and long-settled intentions, is not unreasonable in its 
provisions, and has been executed with fairness.’’(/t) Isor, was 
it ruled by the same learned judge, does loss of memory inca- 
pacitate, unless it be total, or appertains to tilings essential.(7) 
In connection with these passages, the remarks of Lord Cock- 
burn, C. J., in the case of Banks v. Goodfellow,^1) are worthy 
of attention. “ In these cases,” he says, “ it is admitted on all 
hands that though mental power may be reduced below the 
ordinary standard, yet, if there be sufficient intelligence to 
understand and appreciate the testamentary act in its different 
bearings, the power to make a will remains. It is enough if, 
to use the words of Sir Edward Williams, in his work on 
‘ Executors,’ ‘ the mental faculties retain sufficient strength 
fully to comprehend the testamentary act about to be done.’ 
‘ ISlon sani tantum,’ says Yoet, in his ‘Commentary on the 
Pandects,’ founding himself on the language of the code, ‘ sed 
et in agone mortis positi, seminece ac balbutiente linguS vo- 
luntatem promentes, recte testamentas condunt, si modo mente 
adhuc valeant.’” 
§ 89. In harmony with these views, wills have been sus- 
tained when the testator was eighty years of age, very deaf, 
and partially blind ;(m) where he was of the same age, and 
was afflicted with a palsy, so that he could neither write nor 
feed himself ;(n) and when he was between ninety and a hun- 
dred, and greatly debilitated.(o) It is true that when in old 
age the testator is shown to have been imposed upon or coerced, 
the will will be set aside; but this rather tends to strengthen 
than invade the sanctity of the testamentary privilege.(p) 
§ 90. The same view is to be taken of the bodily infirmities 
peculiar to old age. If they produce mental impotence, of 
course they work incapacity.(g') But their mere existence 
(k) Maverick v. Reynolds, 2 Bradf. Sur. 360. 
(l) Bleecker v. Lynch, 1 Bradf. Sur. 360. 
(Z1) Law Rep. 5 Q. B. 549. 
(to) Lowe v. Williamson, 1 Green Cli. 82. 
(ft) iteed’s Will, 2 B. Monr. 79. 
(o) Van Alst v. Hunter, 5 Johns. Ch. 148. 
(p) 1 Jarm. on Wills (2d Am. ed.) 53. 
(q) Harvey v. Sullens, 46 Mo. 147 
77 78 
MENTAL UNSOUNDNESS AS TO WILLS. 
[book i. 
will not be sufficient to produce this result.(r) As long as it 
can be done consistently with public justice, the policy of the 
law requires that the protection to old age, afforded by the 
right of testamentary disposal, should continue unimpaired; 
and it is permitted to cease only when actual wrong would be 
done to third parties by its continuance, or where by exposing 
the possessor to undue solicitation or to imposition, it proves 
an annoyance rather than an advantage. Nor is this rule 
without its foundation in the results of observation. The 
truth that the mind is not necessarily affected by bodily in- 
firmity, is illustrated by numerous cases, one of the most 
striking of which is that of Dugald Stewart, who, when un- 
able from disease to take general exercise, to use his right 
hand, or to articulate distinctly, composed the third and fourth 
volumes of his Philosophy of the Human Mind. 
§ 91. In a case in 1869 in Illinois, where a bill was filed to 
set aside a deed made by a man eighty-seven years old to his 
son, on the ground of mental imbecility, the court held that 
in order to entitle the plaintiffs to the relief sought, they must 
show such a degree of mental weakness as to render the party 
incapable of understanding and protecting his own interests. 
The circumstance that the mental powers have been somewhat 
impaired by age is not sufficient, if the contracting party still 
retains a full comprehension of the meaning, design, and effect 
of his acts.(s) 
§ 92. In a leading case in England, as reported by Mr. 
Browne,(0 the evidence was that Andrew Harrison made a 
will and several codicils; the will and the first four codicils 
were not opposed, the other codicils were contested. The 
contested codicils were set up by Mr. Ivindleside, who was one 
of the executors and the residuary legatee named in the will, 
and they were opposed by Mr. Benjamin Harrison, whose ap- 
pointment as an executor and the benefits he derived under 
the will were revoked by these codicils. All these instruments 
were regularly executed, and the grounds of opposition were, 
(r) Ex parte Vanauken, 2 Stockt. (N. J.) 186. 
(s) Lindsey v. Lindsey, 50 Ills. 79. 
(t) Browne’s Med. Jur., London, 1871, p. 212. See 2 Pliil. R. 449. 
78 BOOK I.] 
PRESUMPTION FROM OLD AGE. 
79 
that the deceased labored under dementia (mental imbecility), 
so as to be incapable of any testamentary act whatever; and 
with regard to two of the codicils, it was asserted that they 
were obtained from the deceased b}T fraud, circumvention, and 
importunity. 
It was proved that the testator was eighty-six or eighty- 
eight when the contested codicils were made. It was also 
proved that the deceased was liable to certain nervous attacks, 
and it was admitted that during these attacks he was incapa- 
ble of any rational act. The deceased was admitted to be 
deaf, to be nervous and low-spirited when anything affected 
him. His eyesight was perfect, his bodily powers were not 
much impaired. It was proved that he could run up stairs. 
These points were not controverted. 
Thirteen witnesses were examined to prove the incapacity 
of the testator. Most of them spoke of a failure of memory, 
of a defective power of recognizing people, of his being re- 
garded by those about him as a person of weak mind, and of 
his appearing to be “lost.” But their evidence brought out 
the fact that he was in many ways vigorous in mind and body, 
and that he was able to transact business without assistance. 
They were all urgent in expressing their opinion that the tes- 
tator was of unsound mind, and incapable at the time the 
contested codicils were made of making a valid testamentary 
instrument. 
The evidence of "William Taylor is very strongly in favor of 
the hypothesis that the deceased was in a state of senile de- 
mentia at the time the contested codicils were executed; but, 
as the learned judge (Sir John Hicoll) shows, his evidence is 
not altogether to be relied upon, and his statements are not 
consistent with many of the accounts of the testator’s condi- 
tion given by witnesses summoned to prove his incapacity. 
The allegations made as to his losing his sense of delicacy, his 
getting up in the night, and undressing himself in the day, 
were in effect disproved. The evidence of Mr. Boodle, the 
solicitor, who had to do with the execution of the codicils, is 
important. It shows that at the time of their execution Mr. 
Boodle, although he thought the deceased’s memory defective, 
did not regard him as permanently incapable; and, when com- 
79 80 
MENTAL UNSOUNDNESS AS TO WILLS. 
[book i. 
pared with the evidence of Mrs. Jukes, the medical man, and 
Mr. Roberts, it appears that any supposition that the testator 
labored under such mental defect as to render him incapable 
of a valid testamentary act is untenable. It was satisfactorily 
proved that he was able to settle bills, to draw his own drafts, 
to write letters, to play cards, to go about by himself, and that 
he comprehended the state of his affairs; and many of the wit- 
nesses summoned in support of the codicils assert that they 
regarded him as a person of sound mind, whose memory and 
understanding were unimpaired. 
With regard to this part of the case the learned judge says: 
“Row, these accounts, with the bills regularly paid and in- 
dorsed, these drafts drawn, these counterchecks registered and 
marked with the date and sum for which they were drawn, 
the corresponding entries in the book of expenditure, prove 
mind and understanding, and thought, judgment, and reflec- 
tion very strongly, and, in a person of his great age, of a most 
extraordinary and unusual degree. * * * It is proved to my 
satisfaction that he possessed his mental faculties in an extra- 
ordinary degree, considering his great age, and that he had a 
testamentary capacity quite equal to a testamentary act of no 
very complicated nature.” 
§ 93. Sir J. Wilde (now Lord Penzance) in pronouncing 
judgment in the case of West v. Sylvester, against a will pro- 
pounded as that of an aged lady, said, “At the time she ex- 
ecuted the will of October, 1863, although for many purposes 
she might be said to be in her right senses, she was, neverthe- 
less, suffering from that failure and decrepitude of memory 
which prevented her having present to her mind the proper 
objects of her bounty, and selecting those she wdshed to par- 
take of it.” 
§ 94. Dr. Taylor gives on this point the following memo- 
randum, which he says he has obtained from a learned judge: 
“ Another condition may be noticed which often occurs in the 
experience of lawyers, and to which medical men in attend- 
ance on aged persons do not sufficiently attend. A person’s 
mind in extreme old age may be quite intelligent, his under- 
standing of business clear, his competency to conyerse upon 
and' transact business undoubted, and his bodily strength good ; 
80 BOOK I.] 
PRESUMPTION FROM DEAF, DUMB, OR BLIND. 
[§ 95 
but there may grow upon him a fear and dread of relatives or 
servants who may have surrounded him, and on whom he may 
have become so perfectly dependent that his nervous system is 
wholly overcome, so that he has no power to exert his mind in 
opposition to their wishes, or to resist their importunities. 
His mind is enslaved by his fear and a feeling of helplessness, 
so that, to that extent, and in matters in which he may be 
moved by them, he really is facile and imbecile. This state 
of things seems to be easily brought on in old age, when the 
faculties are otherwise entire, and the bodily strength con- 
siderable. This state of a party’s mind at a great age was 
exhibited in a remarkable case from Scotland, which went to 
the House of Lords.” 
(c2) From party being deaf, dumb, or blind. 
[See this question viewed psychologically, infra, §§ 461-469.] 
§ 95. In cases of blindness, or of deaf and dumbness, the party 
offering a will has the burden of proving that the testator 
knew the contents of the will, and was not imposed upon.(z<) 
It has been questioned whether a person who was both blind 
and deaf and dumb, is competent to execute any instrument 
requiring though, as will be seen,(w) this can- 
not now be considered to be the law, when to that unfortunate 
class methods of communication have been opened which may 
fit them to sustain and appreciate the relations of society. 
“We regard this class of persons,” says Judge Redfield, 
in his excellent treatise on wills,(x) “as standing precisely 
like all others in that respect (testamentary capacity), with this 
difference, perhaps, that, where it appears that the testator was 
a deaf-mute, it will impose upon those who seek to establish 
the will the burden of showing, in the first instance, that the 
testator made the instrument understandingly.” But even 
this qualification, the same learned author seems so think, 
vanishes, “ in the case of educated mutes, who are capable of 
communicating by writing.” “ The fact that the testator 
(u) 1 Jarman on Wills (2d Am. ed.) 48. (») Ibid. 
(w) Infra, § 96. (*) I. Cli. III. Sect. Y. 
VOL. I.—6 
81 §96] 
MENTAL UNSOUNDNESS AS TO WILLS AND CONTRACTS. 
[BOOK I. 
wrote the will might fairly be regarded as sufficient evidence, 
prima facie at least, that he made it understandingly.” And 
the deaf and dumb testator may communicate his intention to 
execute by signs,{y) or by Whatever may once 
have been thought, it is now clear that even a concurrence of 
blindness with deafness and dumbness, necessarily works no 
incapacity.(a) Yet, as the law presumes a person who is deaf 
and dumb incapable of managing his own affairs, if he has 
been so since his birth, it is prima facie evidence of incompe- 
tency, and hence the Statute of Limitations does not run 
against him unless he is shown to possess sufficient intelligence 
to know and comprehend his legal rights and liabilities.^) 
§ 96. The earlier cases on this point are thus summed up 
by Dr. H. P. Peet, in a very interesting essay published by 
him in the thirteenth volume of the American Journal of 
Insanity:— 
“In Brower v. Fisher,(c) a deed was declared valid that had 
been made by an uneducated deaf-mute, it being shown, on 
inquiry by a commission of lunacy, that the grantor, though 
born deaf and dumb, ‘ had sufficient intelligence for the ma- 
nagement of himself and property, and was capable of com- 
municating by signs and motions with persons with ’whom he 
was intimate, so as to be well understood, and of understand- 
ing them; that the jurors were of opinion that the defendant 
was not a lunatic, unless the fact of his having been born deaf 
and dumb, in judgment of law, made him a lunatic.’ The 
deaf-mute had sold his interest in his father’s estate to the 
plaintiffs for $375, which was proved to be a fair compensation 
under the circumstances, being assisted in making the sale by 
his mother and an intimate friend. Subsequently bringing 
suit on the bond then given, the purchaser was advised that 
the deed from a deaf-mute was not valid, and appealed to the 
(y) Owston in re, 2 Sw. & Tr. 461; Geale in re, 3 Sw. & Tr. 430. 
(s) Moore ®. Moore, 2 Bradf. Sur. 265. See Christmas v. Mitchell, 3 Ired. 
Ch. 535. 
(a) Weir v. Fitzgerald, 2 Brad. Sur. 42. See Oliver v. Berry, 53 Me. 
206 ; Reynolds v. Reynolds, 1 Spear, 756. 
(5) Oliver v. Berry, 53 Me. 206. 
(c) 4 Johnson’s N. Y. Chancery Reports, 441. 
82 BOOK I.] 
PRESUMPTION FROM DEAF, DUMB, OR BLIND. 
[§ 96 
Court of Chancery for his own protection. Chancellor Kent 
decided that the deed was valid under the circumstances; yet 
that ‘ the bill does not appear to have been filed vexatiously, 
but rather to obtain, for greater caution, the opinion of the 
court on a point which had been left quite doubtful in many 
of the books, and which had never received any discussion 
here.’ The Chancellor observes: ‘Upon the finding of the 
jury under the commission, in nature of a writ de lunatico in- 
quirendo, I refused to appoint a committee, and adjudged that 
the defendant was not to be deemed an idiot from the mere 
circumstance of being born deaf and dumb. This is a clear, 
settled rule, and numerous instances have occurred in which 
such afflicted persons have demonstrably shown that they were 
intelligent and capable of intellectual and moral cultivation.’ 
This is quite a safe assertion, even in this country, in 1820, the 
date of this case. After citing conflicting cases and authori- 
ties, for which we refer our readers to the volume of reports, 
the learned and able Chancellor goes on to say: ‘Perhaps, 
after all, the presumption, in the first instance, is, that every 
such person is incompetent. It is reasonable presumption, in 
order to insure protection and prevent fraud, and is founded 
on the notorious fact that the want of hearing and speech ex- 
ceedingly cramps the powers and limits the range of the mind. 
The failure of the organs necessary for general intercourse and 
communion with mankind oppresses the understanding; affigat 
humo divince particulam aurce. A special examination, to repel 
the inference of mental imbecility, seems always to have been 
required; and this presumption was all that was intended by 
the civil law, according to the construction of the ecclesias- 
tical courts; for a person born deaf and dumb was allowed to 
make a will, if it appeared upon sufficient proof that he had 
the requisite understanding and desire. I am satisfied that 
the plaintiff is justly to be exempted from the charge of a 
groundless and vexatious inquiry; and the course is not to 
punish the prosecutor of a charge of lunacy with costs, if the 
prosecution has been conducted in good faith and upon proba- 
ble grounds. I shall, therefore, dismiss the bill without 
costs.’ 
“ The effect of this decision seems to be that a deaf-mute from 
83 §96] 
[book I. 
MENTAL UNSOUNDNESS AS TO WILLS AND CONTRACTS. 
birth is, in all cases, to be presumed incompetent to make a 
will or a contract, till his competency is proved; and that, if 
he sells property, and the buyer afterwards chooses to question 
his competency, he must defend himself at his own costs. We 
submit that it would be more in accordance with reason and 
justice to presume his competency, as in the case of men who 
hear and speak, when he has among his neighbors a reputation 
for intelligence and ability to manage his own affairs, and 
more especially when he has been taught to read and write. 
It is to be presumed that no man would make a contract with 
him, unless he had such a reputation for intelligence and com- 
petency ; and if the purchaser of property from a deaf-mute 
neglected to ascertain this point beforehand, we, with all due 
respect to the high authority we have cited, respectfully sub- 
mit that the laches is his own, and that he ought to bear the 
costs of an inquiry which he ought to have previously made 
himself. 
“It is observable that Chancellor Kent, in the opinion before 
us, makes no distinction between deaf-mutes who have, and 
those who have not, been educated. Probably, at that early 
day, he was hardly aware of the nature of this distinction. 
Indeed, it is a fact that there are some uneducated deaf-mutes 
more intelligent in matters concerning their own affairs than 
are some of those who have spent years in an institution; for 
all the care of the teacher cannot remedy the original want of 
capacity. Such cases are, however, rare. The fact of having 
been educated is one strong presumption of capacity of a deaf- 
mute to manage his own affairs; and, if not educated, still his 
reputation for intelligence among his neighbors ought, a3 we 
have already observed, to be presumptive proof as to his capa- 
city or incapacity. 
“The capacity of making a contract involves the capacity of 
making a will; and we see, in the citation just given from 
Chancellor Kent, he refers to the testamentary capacity con- 
ceded to deaf-mutes by ‘ the ecclesiastical courts,’ where they 
were proved to have ‘ the requisite understanding and desire,’ 
in illustration of the capacity of a deaf-mute to execute a valid 
deed. From this decision, therefore, and from the opinion 
expressed by Surrogate Bradford, before referred to, we are 
84 BOOK I.] 
PRESUMPTION EROM DEAF, DUMB, OR BLIND. 
[§ 96 
warranted in declaring the law to be that an intelligent deaf- 
mute, even if unable to write, and only able to make bis 
wishes known by signs, can make a valid will, or valid deed, 
or bind himself to any other obligation or contract. And we 
have high legal authority for adding that, whatever may be 
the degree of his intelligence, he is hound for, and an action 
can be maintained against him for, necessaries suitable to his 
condition, unless it appear that the person who supplied them 
knew of his want of ordinary intelligence, and imposed upon 
him.(f?) 
“In the same volume of Johnson’s Chancery Reports (iv. p. 
168) we find a case in which a woman, 4 unmarried, of the age 
of sixty years, deaf and dumb from infancy, and of such imbe- 
cility of mind as to be incapable of defending the suit,’ in 
which she was legally a party with her brother and others, 
was admitted to appear and defend by guardian. Ho special 
inquiry was here made; the facts on which the application for 
the appointment of a guardian were founded being merely 
verified by affidavit. Here it will be seen the appointment of 
a guardian was grounded on ‘imbecility of mind,’and not 
merely on the defendant’s being deaf and dumb. She was 
doubtless uneducated, for at that date (1819) there were no 
deaf-mutes in the State of Hew York, sixty years of age, who 
had had the opportunity of receiving an education. Had she 
been educated, however, there can be no question that extreme 
4 imbecility of mind,’ though it would be less likely to super- 
vene, would, if present, be a cause for appointing a guardian.(e) 
(cl) Baxter v. The Earl of Portsmouth, 7D.& Ry. 014; 5 Barn. & Cress. 
170 ; 2 Car. & Pay. 178. 
(e) “Since ■writing this paper we have examined the laws of Georgia, in 
which it is enacted, that ‘ Deaf and dumb persons shall be so far considered 
idiots in law as to authorize the inferior court to appoint guardians, etc. 
‘ Provided it shall be made satisfactorily to appear to said court that such 
deaf and dumb person or persons are incapable of managing his or her estate, 
or him or her or themselves.’ This is the only American legislative provi- 
sion on this point that has come to our notice. Possibly similar provisions 
may exist in the laws of other States; but we believe not in those of the North, 
Eastern, or Middle States. By the principles and practice of the common 
law, courts might, without special enactment, appoint guardians for any per- 
son satisfactorily shown to be incapable of managing his estate, whether deaf 
85 §98] 
[book I. 
MENTAL UNSOUNDNESS AS TO "WILLS AND CONTRACTS. 
We find a French case in point recorded by Piroux, who in- 
forms us that he was called in as an expert, to give advice on 
the question whether Frances Bowry, one of his former pupils 
(at Fancy, in Eastern France), was in a condition to manage 
her own estate, or whether it would be for her benefit to name 
for her a conseil judiciare (a sort of half-guardian). ‘ Know- 
ing,’ he says, ‘that this young woman has no longer father or 
mother, that she is obliged to live with illiterate persons, 
among whom her instruction cannot be continued, and, finally, 
that a sickness of nearly a year, which she had when in our 
establishment, has hindered her progress, we considered that 
it would be useful for her to name for her a conseil jadiciare ; 
and the tribunal has by a judgment confirmed our opinion.’” 
§ 97. If compos mentis, they can contract matrimony.(/) 
§ 98. In an English case, in which a person, deaf and dumb, 
was to be tried for a capital felony, the judge ordered a jury 
to be impanelled, to try whether he was mute by the visita- 
tion of God; the jury found that he was so. The jury was 
then sworn to try whether he was able to plead, which they 
found in the affirmative; and the prisoner by sign pleaded not 
guilty. The judge then ordered the jury to be sworn to try 
whether the prisoner was now sane or not; and on the ques- 
tion, he directed the jury to consider whether the prisoner had 
sufficient intellect to comprehend the course of the proceed- 
ings, so as to make a proper defence, to challenge any juror he 
might wish to object to, and to comprehend the details of the 
evidence; and that if they thought he had not, they should find 
him not of sane mind. The jury did so, and the judge ordered 
the prisoner to he detained under 39 and 40 Geo. 3, c. 94, s. 
2 .(<7) 
In a subsequent trial of a person, deaf and dumb, for a mis- 
demeanor, a jury was impanelled to try whether he was mute 
by the visitation of God, and on their finding that he was so, 
they were sworn to try if he was of sound mind, and on their 
and dumb or not. See 2 Johnson’s N. Y. Chancery Rep. 235. It seems, then, 
the indignation expressed by a Georgia deaf-mute at the law just cited (Am. 
Annals, viii. 124) was rather unnecessary.” 
(/) Swinburne on Spousals, cited 13 Am. Journ. Insan. 127. 
(ff) R. ®. Pritchard, 7 C. & P. 303—Alderson. 
86 BOOK I.] 
COMMISSIONS OF LUNACY. 
[§100 
finding that he was so, his counsel pleaded not guilty for him, 
and the trial proceeded in the usual manner, and the evidence 
was not interpreted to the prisoner.(A) 
Other questions regarding the capacity of the deaf and dumb 
are discussed under a future head.(z) 
B. What is necessary to be proved in order to deprive a 
PARTY OF THE MANAGEMENT OF HIS ESTATE.(A) 
§ 99. In most of the United States, as in England, process 
exists by which, when a party is incapable of the management 
of his estate, whether from mental unsoundness or from habi- 
tual drunkenness, a committee may be appointed, to whom 
the custody of his property is committed. It would be out of 
place to set forth here the statutes by which this process is 
defined and settled; it is enough now to notice the general 
scheme of practice which exists in England, and which has 
been, with the exceptions of only slight alterations of detail, 
adopted in this country. 
§ 100. AVhen there is reason to believe that a party, from 
unsoundness of mind or habitual drunkenness, is incapable of 
managing his affairs, a petition lies, generally from any per- 
son interested in his person or estate, for the issuing of a com- 
mission. Upon the reception of the petition, the court directs 
a commission to issue to one or more persons—generally re- 
quired to be learned in the law—directing the inquiry by 
commissioner and jury, as to the facts of the petition. The 
commissioner, being thus authorized, directs a precept to the 
sheriff", commanding him to summon a jury, who, when they 
meet, hear testimony—on both sides if desired—on the matter 
submitted to them, and, after being charged by the commis- 
sioner as to the law of the case, return a finding as to whether, 
from the lunacy or habitual drunkenness complained of, the 
respondent is incapable of managing his estate. Should the 
finding be in the affirmative, the court will appoint a corn- 
(7i) R. v. Whitfield, 3 C. & K. 121—Williams. (i) Infra, § 461. 
([k) For an interesting case under this head see infra, Appendix IX., § 841. 
87 § 101] 
MENTAL UNSOUNDNESS AS TO WILLS AND CONTRACTS. 
[bOOKI. 
mittee, who will take charge of the respondent’s estate,(l) sub- 
ject, however, to the absolute right(m) of the respondent to 
traverse the finding, i. e., to put in a formal denial of it, in 
which case the question is determined before a court and jury, 
in the same way with any contested fact. Whether the al- 
leged lunatic really is capable of volition as to a traverse, and 
desires that a traverse should be entered, will be determined, 
it seems, by the chancellor himself by personal examination or 
otherwise.(n) 
§ 101. It will be seen that the point at issue under a com- 
mission of lunacy or habitual drunkenness, is the general, and 
not the partial or particular, incompetency of the party who is 
the subject of the inquiry. It is a matter of some moment, 
also, that the fullest opportunity of examination be given. 
When a particular instrument is sought to be vacated, or a 
particular crime to be excused, the testimony of the medical 
witness is necessarily drawn from but casual observation, made 
in some cases at a time when he had no reason to suspect the 
existence of the disease. So, also, in such cases great incen- 
tives to fraud exist; and it is well known how acute must be 
the penetration, and how sharp the tests which are not some- 
times baffled by the simulation of mental unsoundness. On 
the other hand, a commission of lunacy is executed with de- 
liberation, after a calm and full review of the previous life of 
the party under consideration. Nor is he likely, as in criminal 
defences, to obtain a verdict of insanity through undue sympa- 
thy, for his interests and his pride are both enlisted in resist- 
ing his moral and intellectual disfranchisement. It becomes, 
therefore, a simple test, Is the respondent prevented by mental 
unsoundness or habitual drunkenness from managing his own 
estate ? If not, no matter how responsible he may be for crime, 
or capable at particular times of making a bargain, the finding 
must be against him. 
(l) See, as to the practice in regard to the appointment and removal of 
committees," Black’s Est., C Harris, 434 ; Hulings v. Laird, 9 Harris, 268. 
(m) Cumming in re, 11 Eng. Law and Eq. 202. 
(«,) Ibid. 
88 BOOK I.] 
[§ 103 
COMMISSIONS OF LUNACY. 
Upon a recovery of competency, the commission, on due 
cause shown, will be superseded.(o) 
§ 102. “ In commissions of lunacy,” says Dr. Winslow, “ the 
witness must not only be prepared to give an opinion as to the 
then state of mind of the party, and competency to take care 
of his person and manage his affairs, but he must be prepared 
occasionally to pronounce judgment as to a prior questionable 
condition of brain and mind. The alleged lunatic may, under 
the exercise of undue influence, have previously alienated his 
property by will, or been induced to execute other important 
documents. The witness will be called upon to depose as to 
the probable state of the brain at the time, and as to the length 
of the alleged existing attack of insanity. Well-marked 
symptoms of organic cerebral disease may be present, and it 
will in some cases be an important point to decide, whether 
such a condition of physical ill health has not been of some 
years’ duration, impairing the mental vigor, destroying all 
power of rational conduct and healthy continuity of thought, 
and thus interfering with a right exercise of the judgment 
and affections in the legitimate disposal of property. ”(p) 
§ 103. In a trial in 1868, in Pennsylvania, proceedings were 
commenced by the commonwealth to inquire whether Eliza- 
beth Schneider was a lunatic, &c. The inquisition finding the 
respondent a lunatic was confirmed by the court. The respon- 
dent traversed the finding. On the trial the Court of Com- 
mon Pleas charged (inter alia), “Until the mind is entirely 
blotted out, persons must be left to the management of their 
own affairs. As long as there is a spark of intelligence left, the 
law does not permit their liberty to manage themselves or pro- 
perty to be taken from them.” A writ of error was taken out, 
which assigned for error the portion of the charge just quoted. 
In the Supreme Court, the opinion was delivered by C. J. 
Thompson, who said : “ The true and practical test under this 
proceeding is this—Utter and unmitigated madness, or abso- 
lute and hopeless idiocy, resulting from cerebral injury or dis- 
(#) See Lackey v. Lackey, 2 B. Monr. 478; Matter of Russel, 1 Barbour 
C. R. 88; Matter of Barbour, 2 ib. 97; Matter of Mason, 1 ib. 436; John 
Beaumont’s case, 1 Wharton R. 52. 
0>) Winslow on Medico-Legal Evidence in Cases of Insanity, 129, 130. 
89 §104] 
[book i. 
MENTAL UNSOUNDNESS AS TO WILLS AND CONTRACTS. 
ease, or want of intellect from nativity, are by no means the 
only tests. The protection of property is one, if not the main 
object of the statute; it is practical, that the test of liability 
to a commission, should depend greatly on that unsoundness 
of mind which discloses incompetency to its management, 
and the care and protection of it in a rational manner; and 
this is the rule in England.” lie then cited English authori- 
ties to sustain him, and said: “ The learned judge fell into an 
error, by following the lead of Beaumont’s case, 1 Wharton, 
52, which seems mainly to have rested on Barnsley’s case, 3 
Atk. 168, which we have seen Lord Eldon refused to follow in 
Bidgway v. Darwin.”^) 
The judgment was reversed. 
§ 104. A petition for a commission de lunatico inquirendo 
wras presented by the son of Sarah Collins, in 1867, to the 
Chancellor of Hew Jersey, applying for a commission to take 
charge of his mother’s person and estate. She was in the 
hundredth year of her age, her hearing was somewhat im- 
paired, and her sight very much so. The weight of the me- 
dical testimony, however, was in favor of her soundness of 
mind. The court held that there was no presumption against 
her soundness from her extreme age. “ She may,” says the 
Chancellor, “ be so weak and infirm as to be easily influenced, 
or imposed upon, which would be a reason for setting aside 
any instruments or transactions executed under the effect of 
such influence, but this does not amount to unsoundness such 
as to take from her the control of herself and her property. ”(/*) 
§ 104<2. In a case which attracted much popular attention at 
the time,(s) Chief Baron Pollock declared, that “ no person 
ought to be confined in a lunatic asylum unless dangerous to 
himself and others.” This dictum, which certainly is inconsis- 
tent with the necessities of medical practice, has been combated, 
and with great ability, by very eminent psychological author- 
and has not been followed by the current of American 
(?) Commonwealth v. Schneider, 59 Penn. 328. 
(r) Collins in re, 3 Green, N. J. Ch. 253. See ante, § 87. 
(s) Nottridge v. Ripley, before Chief Baron Pollock, sitting at Nisi Prius, 
June, 1849, reported in full in Journ. of Psyc. Med. vol. ii. p. 630. 
(0 See a remonstrance with the Lord Chief Baron, touching the case of 
90 BOOK I.] 
COMMISSIONS OF LUNACY. 
[§ 105 
judicial opinion. There are necessarily cases when the safety 
of property and the health of the patient himself, require con- 
finement in an asylum, though there be no danger of violence 
to himself and others, and it is not likely that the existence of 
such cases will be again judicially questioned. Whether the 
confinement, in any particular case, was proper or not, will be 
for the court and jury, if an action of false imprisonment be 
brought, to determine specially. And the law in such a case 
undoubtedly is, that confinement is justifiable, if either the 
safety of the patient or others require it, or it is necessary for 
his restoration to health.(u) 
But the general practice is, not to direct, even under a find- 
ing of lunacy, the confinement of the lunatic, except such con- 
finement be required by public peace and morals, or the interest 
of the patient.(id) 
§ 105. In respect to drunkenness, the law is, that, while occa- 
sional acts of intoxication will not justify a finding of “ habi- 
tual” drunkenness, yet, on the other hand, it is not necessary 
for such a finding that the party should be constantly in an 
intoxicated state. Thus, in Pennsylvania, Knox, P. J., in put- 
ting the case upon a traverse to the jury, said: “ Keither was it 
necessary to make out the case that a person should be constantly 
in an intoxicated state, that a man might be an habitual drunk- 
ard, and yet be sober at times for days and weeks together. That 
the question was, had the traverser a fixed habit of drunken- 
ness? Was he habituated to intoxication whenever the oppor- 
tunity offered? The question is one of fact for the jury to find, 
but the court has no hesitation in saying, that the man who is 
intoxicated or drunk the one-half of his time, should be pro- 
nounced an habitual drunkard.” And, in the Supreme Court, 
Rogers, J., said: “ To constitute an habitual drunkard, it is 
not necessary that a man should be always drunk. It is im- 
Nottringe v. Ripley, by John Conolly, M.D., 1849. A letter to the Lord 
Chancellor on the defect of the law regulating the custody of lunatics, by 
Charles Curten Cooper, London, 1849. Psychological Review, vol. ii. p. 564; 
ib. vol. iii. p. 14. A letter to the Right Hon. Lord Ashley, M. P., relative to 
the case of Nottridge v. Ripley, Dundee, 1849. 
(m) Hinchman v. Ritchie, Brightly R. 143. 
(w1) Com. v. Kirkbride, 2 Brewster, 400. 
91 §105] 
MENTAL UNSOUNDNESS AS TO WILLS AND CONTRACTS. 
[BOOK I. 
possible to lay down any fixed rule as to when a man shall be 
deemed an habitual drunkard. It must depend upon the de- 
cision of the jury under the direction of the court. It may, 
however, be safely said, that to bring a man within the mean- 
ing of the act, it is not necessary that he should always be 
drunk. Occasional acts of drunkenness, as the judge says, do 
not make one an habitual drunkard. Hor is it necessary he 
should be continually in an intoxicated state. A man may be 
an habitual drunkard, and yet be sober for days and weeks 
together. The only rule is, has he a fixed habit of drunken- 
ness? Was he habituated to intemperance whenever the op- 
portunity offered? We agree that a man who is intoxicated 
or drunk one-half his time is an habitual drunkard, and should 
be pronounced such. We also concur with the court, that, if 
the jury found the traverser to have been at the date of the 
inquisition an habitual drunkard, it was necessary to decide 
whether he was capable or incapable of managing his estate. 
His incapacity in that event is a conclusion of law. It is not 
necessary to say, it is a presumptio juris et dejure; but, at least, 
it throws the burden of proof of capacity on the traversers. 
Indeed, it may be well doubted, whether his management or 
mismanagement of his estate is a matter of inquiry. It is 
very certain, under the act of the 13tli of June, 1836, proceed- 
ings may be instituted against an habitual drunkard who has 
no estate. Hut this cannot be if the mismanagement of it be 
necessary. It is well said, that there must be an evidence of 
squandering property, to support a proceeding to declare an 
individual an habitual drunkard, else the object of the act in 
many cases would be defeated. For it is precautionary in its 
design, and hence a disposition of mind or body which might 
lead to the wasting of an estate, is sufficient to justify the en- 
forcement of its provisions.(v) It is indeed impossible that a 
man can be an habitual drunkard without waste or misma- 
nagement, as the very act of drunkenness is itself waste. In 
this case, even if required, the evidence was full and plenary 
to this point.'”(w) 
So, also, has it been held in Vermont, that an habitual 
O) Sill V. McNight, 7 W. & Ser. 245. 
(w>) Ludwick v. Com. 6 Harris, 173. 
92 BOOK i.] 
COMMISSIONS OF LUNACY. 
[§ 106 
drunkard “ is one who is in the habit of getting drunk, or one 
who commonly or frequently gets drunk,” not that he is con- 
stantly or universally drunk.(x) 
§ 106. An order was made on 23d Nov. 1861, in the English 
Chancery, for a commission in the case of William Frederick 
Windham, of Eelbrigg Hall, Norfolk. The petitioner’s case 
was imbecility and a consequent inability on the part of the 
respondent to manage his own estate. It appeared that he was 
sent in his boyhood to Eton ; but that while in that school his 
conduct was so unique and extravagant as to lead to the belief 
that he was at that time deranged. As he became older, these 
peculiarities became more marked. lie was extravagant and 
absurd in his purchases; he incurred enormous debts; he was 
guilty at public places of gross indecency which the presence 
of ladies did not restrain; his associates were among the un- 
educated and the profligate; and three weeks after he came of 
age he married a woman of disreputable character, knowing 
that up to the night before the marriage she had cohabited 
with one of his associates as the latter’s mistress. Although 
his income at this time was not more than £1580, he presented 
her, shortly after his marriage, with jewelry valued between 
£12,000 and £14,000, and settled on her absolutely £800 per 
annum. Although, after her marriage, she cohabited, to his 
knowledge, with another man, he condoned this act, con- 
tinuing to live with her. His habits were devoid of cleanli- 
ness ; and he sometimes displayed utter callousness. Unfor- 
tunately, when the question came to he tried, there was the 
usual conflict of opinion among the experts. Dr. Forbes Wins- 
low and Dr. Mayo, it is true, whom the court appointed me- 
dical examiners, and Dr. Bright, who was associated with them 
as assessor, united in the emphatic opinion that the respon- 
dent was in a state of mental imbecility, and was incapable of 
managing his own affairs. Dr. Southey, who was appointed 
subsequently by the Lord Justices as an additional examiner, 
came to the same result. On the other hand, Dr. Tuke, Dr. 
Sutherland, Dr. Hood, Dr. Seymour, and Dr. Conolly, testified 
that, in their opinion, Mr. Windham was sane and of sound 
(x) State v. Pratt, 34 Vt. 223. 
93 § 106] 
MENTAL UNSOUNDNESS AS TO WILLS AND CONTRACTS. 
[BOOK I. 
business capacity; and Dr. Tuke, in particular, sustained this 
position on the ground (1) of Mr. Windham’s remarkable 
powers of observation, and (2) of the skill with which he had 
conducted his defence. Mr. Warren, master in chancery, 
charged the jury that “ the question to be decided was not 
whether Mr. Windham was absolutely insane, but whether 
there was such imbecility of mind, not amounting to insanity, 
as to render him liable to be robbed by any one. The broad 
question was whether he was of sufficiently sound mind to be 
intrusted with the management of himself and his affairs. 
Mere weakness of character, mere liability to impulse, good or 
bad, mere imprudence, recklessness, and eccentricity did not 
constitute unsoundness of mind, unless, in looking fairly at 
the whole of the evidence, there was good reason to refer them 
to a morbid condition of intellect. They might furnish evi- 
dence of unsoundness, but they did not constitute it.” The 
jury, by a majority of 15 to 8, returned as a verdict that “Mr. 
Windham is of sound mind and capable of taking care of him- 
self and his affairs.” “After the verdict was returned,” says 
Dr. Taylor,(?/) “ he was guilty of many extravagant acts, ex- 
hausted a splendid fortune and became a bankrupt; showing 
that, whatever legal soundness of mind he might possess in 
the opinion of two-thirds of the jury, he practically did not 
evince that capacity which they declared him to possess in 
taking care of himself or his affairs.” But Dr. Taylor, in 
citing bankruptcy, and even waste, as evidence of want of 
business capacity, mistakes the purport of laws instituting 
commissions of lunacy. They are not designed to place men, 
who are simply extravagant or reckless, in the hands of a 
committee, for, if so, all business would be at a standstill, and 
half the estates of the country would in a few years be placed 
in chancery. The question for such commission simply is, Is 
the respondent incapable from mental unsoundness of managing 
his own affairs? If capable, he must be allowed to contribute 
his own energies and means to that volume of public wealth 
whose ebb and flow are essential to the economical activity of 
(y) Taylor’s Med. Jur., Penrose’s ed. p. 665. A case, corresponding in 
many respects Avitli the above, is that of Winter, reported in 26 Am. Journal 
of Ins. 47. 
94 BOOK I.] 
WIIAT AVOIDS RESPONSIBILITY FOR CRIME. 
[§ 108 
the State. lie must take his chance, and learn, if he can, from 
the discipline of life, that wisdom which, perhaps, he may not 
at first display. “ Mere extravagance or follies,” as declared 
by Lord Chelmsford when commenting on this case in the 
House of Lords, “ are not therefore sufficient, unless the imbe- 
cility amounted to unsoundness of mind.” 
§ 107. Persons of “unsound mind, incompetent to take pru- 
dent care of themselves, are entitled to the protection of courts 
of equity as much as technical idiots and lunatics. ”(z) 
C. ’What avoids responsibility for crime.(<2) 
§ 108. Two preliminary questions meet us as we enter on 
the discussion of criminal responsibility. The first is, whe- 
(s) Nailor v. Nailor, 4 Dana (Ky.), 389 ; Shaw v. Dixon, 6 Bush. (Ky.) 644. 
(«) The consideration to be given to this species of defence was thus justly 
and humanely stated by Parker, C. J., of New Hampshire, in a charge to 
the grand jury: “The public papers, in giving reports of trials, often say, 
‘the defence was, as usual, insanity,’ or make use of some other expression, 
indicating that this species of defence is resorted to, in desperation, for the 
purpose of aiding in the escape of criminals. Such opinions are propagated, 
in many instances, by those whose feelings are too much enlisted, or whose 
ignorance respecting the subject is too great, to permit them to form a dispas- 
sionate and intelligent judgment ; and they have a very pernicious tendency, 
inasmuch as they excite the public mind, and the unfortunate individual who 
is really entitled to the benefit of such defence is thereby sometimes deprived 
of a fair trial. They tend to make the defence of insanity odious, to create 
an impression against its truth in the outset, and thus to bias the mind of the 
jury against the prisoner, and to induce them to give little heed to the evi- 
dence, in the very cases where the greatest care and attention and impar- 
tiality are necessary for the development of truth and the attainment of 
justice. 
“We all concur in the doctrine of the law, that, for acts committed during 
a period of insanity, and induced by it, the party is not responsible ; that, 
when the criminal mind is wanting—when, instead of being guided by the 
reason which God bestowed, the individual is excited and led on by insane 
fury and impulse, or by the aberrations of a wandering intellect, or a morbid 
and diseased imagination, or a false and distorted vision and perception of 
things—punishment should not follow the act as for an offence committed ; that, 
when the faculty of distinguishing between right and wrong is wanting, the 
individual ought not to be held as a moral and accountable agent. As well, 
nay, much better, might we, as was formerly done in France, institute prose- 
cutions against the brute creation for offences committed by them, and hang 
a beast for homicide, than to prosecute and condemn a human being who is 
deprived of his reason ; for in such case there is no hope of restoration to a 
95 96 
MENTAL UNSOUNDNESS AS TO CRIMES. 
[book i. 
ther the definition of “ insanity” is for the court or for the 
jury, and was mooted in 1870 and 1871 in two able judg- 
ments of the Supreme Court of New Hampshire. In the 
first of these cases,(b) the defence was “ dipsomaniaand the 
court trying the case (Perley, C. J. and Doe, J.) instructed the 
jury that, “whether there was such a mental disease as dipso- 
mania, and whether the killing of Drown (the deceased) was 
the product of such disease, were questions of fact for the 
jury.”(c) In a subsequent trial for murder in killing the de- 
fendant’s wife, where the defence was an insane delusion that 
the wife had been guilty of adultery, the court (Doe, J.) 
charged the jury, that, if the defendant killed his wife in a 
right mind, and a reinstating of a fellow-citizen, who has been once lost to 
the community, in the rights and affections of humanity. But if we imbibe 
the idea that instances of insanity are very rare—that derangement exists 
only when it manifests itself by incoherent language and unrestrained fury— 
that the defence, when offered, is probably the last resort of an untiring advo- 
cate, who, convinced that no real defence can avail, will not hesitate to palm 
off a pretended derangement to procure the escape of his client from merited 
punishment—if in this way we steel our hearts against all conviction, it is of 
little avail that we agree to the abstract proposition, that insanity does in fact 
furnish a sufficient defence against an accusation for crime. 
“ There are undoubtedly instances where this defence is attempted from the 
mere conviction that nothing else will avail—cases where the advocate forgets 
the high duty to which he is called, and excites a prejudice against the case 
of others, by attempting to procure the escape of a criminal under this pre- 
tence ; but such are truly rare, and usually unsuccessful.” 
“Lawyers and physicians,” says Mr. Stephen, in his treatise on Criminal 
Law (London, 1863, p. 87), “mean two different things by the word ‘mad- 
ness.’ A lawyer means conduct of a certain character. A physician means 
a certain disease, one of the effects of which is to produce such conduct. If 
the pathological character of madness could be accurately ascertained, the 
difference would be perfectly clear. Suppose, for example, it were shown to 
consist in obscure inflammation of the brain. It would obviously be mon- 
strous to set aside a perfectly reasonable will, made with every circumstance 
of deliberation and reflection, because, after the testator’s death, it was proved, 
by dissection, that, at the time of executing the will, he had obscure inflam- 
mation of the brain; yet this would be demonstrative proof that in the medi- 
cal sense of the word he was mad.” But would it ? Certainly, unless there 
be proof of insane conduct, no amount of cerebral disorder or hereditary in- 
sane antecedents has been held, by intelligent medical experts, to raise even 
the presumption of insanity. 
(6) State v. Pike, 49 N. H. 399. 
(c) See this case examined at large, infra, §§ 190, 191. 
96 BOOK I.] 
WHAT AVOIDS RESPONSIBILITY FOR CRIME. 
[§ 109 
manner that would he criminal and unlawful if the defendant 
were sane, the verdict should be not guilty by reason of 
insanity, if the killing was the offspring or product of mental 
disease in the defendant. Neither delusion nor knowledge of 
right and wrong, nor design or cunning in planning and exe- 
cuting the killing and escaping or avoiding detection, nor 
ability to recognize acquaintances, or to labor, or transact 
business, or manage affairs, is as matter of law a test of mental 
disease; but all symptoms and all tests of mental disease are 
purely matters of fact to be determined by the jury. 
“ Whether the defendant had a mental disease, and whether the 
killing of his wife was the product of such disease, are questions 
of fact for the jury” “ Insanity is mental disease—a disease of 
the mind. An act produced by mental disease is not crime. If 
the defendant had a mental disease which irresistibly impelled 
him to kill his wife—if the killing was the product of mental 
disease in him—he is not guilty. If the defendant had an 
insane impulse to kill his wife, and could have successfully 
resisted it, he was responsible. Whether every insane impulse 
is always irresistible, is a question of fact. 
“Whether in this case the defendant had an insane impulse 
to kill his wife, and whether he could resist it, are questions 
of fact. Whether an act may be produced by partial insanity 
when no connection can he discovered between the act and the 
disease, is a question of fact. The defendant is to be acquitted 
on the ground of insanity, unless the jury are satisfied beyond 
a reasonable doubt that the killing was not produced by mental 
disease.” It was held by the Supreme Court in error that these 
instructions were correct.^1) 
§ 109. If the rule be that “mental disease” is exclusively 
a question of fact for a jury, and if it be also exclusively a 
question of fact for the jury to determine whether the act 
complained of was the product of mental disease, then any 
further examination of the question as a matter of law is 
unnecessary. All that is required is to use the words in ques- 
tion in a charge to the jury, and the matter, so far as concerns 
(c1) MS. Rep.; and see Stevens ®. State, 31 Ind. 485 ; and article in 4 Am. 
Law Review, 530 ; see infra, § 191, note z. 
VOL. I.—7 
97 § HO] 
[book i. 
COURTS TO DETERMINE THE LAW. 
the court, is closed. It is now submitted, however, that, able 
and learned as are the judges who have maintained this view, 
it cannot be sustained on reasons either psychological or judi- 
cial. That it cannot be sustained on authority, these learned 
judges themselves concede. 
§ 110. The proposition before us, then, is that the entire 
question of responsibility is to be left to the jury, with the 
instruction that if the act was the product of “ mental disease” 
they are to acquit. But what is “mental disease?” And here 
we encounter the first obstacle to this method of solving this 
vexed and yet most important question. “Mental disease,” in 
fact, is a term so indeterminate and vague, that to leave the 
question to the jury with the instructions here criticized, is to 
leave it to them without any instructions at all. Mental, like 
physical disease, ranges from slight indisposition or disorder, 
on the one side, to the comatose state immediately preceding 
dissolution, on the other. There is no phase of ennui or of 
misanthropy, no tinge of jealousy or avarice however faint, 
no corrosion of remorse however just, that has not received 
this title. States of mind eminently responsible—those which 
the most latitudinarian ethics would pronounce as peculiarly 
the subjects for the discipline and penalties of the law—have, 
as was the case with Lady Macbeth, been invested with the 
title as readily as those where responsibility is confessedly 
gone.(<i) Webster, in his Dictionary, tells us that “in a 
rative sense we speak of a diseased mind,” and he, as well as 
Worcester and Richardson, defines mental disease as, first, 
want of ease, and, secondly, a morbid or unhealthy condition, 
a definition which would include every mental state which 
(d) It is remarkable liow pointedly the passage from which the term 
“mind diseased” lias crept into common use, brings out the idea of moral 
responsibility as distinguished from irresponsibility; and how thoroughly 
inconsistent is the state it depicts with irresponsible insanity:— 
Macbeth. Canst thou not minister to a mind diseased, 
Pluck from the memory a rooted sorroiv, 
Raze out the written troubles of the brain, 
And with some sweet oblivious antidote, 
Cleanse the stuffed bosom of that perilous stuff 
Which weighs upon the heart ? 
Doctor. Therein the patient must minister to himself. 
98 BOOK I.J 
WHAT AVOIDS RESPONSIBILITY FOR CRIME. 
[§ 111 
makes crime the object of desire. “ In the world ye shall have 
diseaseso runs Wickliffe’s translation of John, xvi. 33; 
and want of rest and disquiet give still the primary meaning 
of the word, however much, in our modern complimentary 
way of toning down by inadequate epithets subjects dis- 
tasteful to us, it may have been metaphorically extended to 
denote active maladies. Yet, even when thus metaphorically 
enlarged, the term includes passion in every phase. Thus, in 
the second epistle of his Essay on Man, Pope says:— 
“Hence different passions more or less inflame, 
As strong or weak, the organs of the frame : 
And hence one master-passion in the breast, 
Like Aaron’s serpent, swallows up the rest. 
As man, perhaps, the moment of his breath, 
Receives the lurking principle of death : 
The young disease, which must subdue at length, 
Grows with his growth, and strengthens with his strength : 
So, cast and mingled with his very frame, 
The mind's disease, its ruling passion came,” etc. 
§ 111. Now, if we substitute for “mental disease” in the for- 
mula given in New Hampshire, any one of the definitions just 
noticed, we will at once see how inadequate is this mode of 
disposing of the question. No one would maintain, for instance, 
that it would not be in violation of all the fundamental 
sanctions of criminal jurisprudence, to tell the jury that they 
must acquit the defendant if they believe the act was produced 
by a “ mind ill at ease,” or by a “ morbid or unhealthy con- 
dition of the mind,” or by the mind’s “ ruling passion.” Yet 
the term “mental disease” legitimately and primarily includes 
all these states, and may be properly used to describe every 
evil passion by which crime may be caused. In fact, if criminal 
desire be, as is argued by Hr. Maudsley and Mr. Bain, always 
a mental disease, then the instructions under controversy are 
equivalent to telling the jury that they must acquit in all 
cases where the crime was the product of criminal desire. 
Under such a system, only the innocent could be convicted of 
crime, for only the innocent could be pronounced free from 
this psychical peculiarity. 
IIow ambiguous the term is, appears, in fact, from one 
of the very rulings to which we here except. It was de- 
99 §112] 
COURTS TO DETERMINE THE LAW. 
[book i. 
dared, in the first of the cases commented on,(e) that dipso- 
mania was one of the defences of which the jury were to be 
thus the supreme judges. The argument may be thus techni- 
cally stated: All forms of mental disease are, both as to their 
existence and their results, for the determination of the jury ; 
dipsomania is a form of mental disease; therefore dipsomania, 
both as to its existence and results, is for the exclusive deter- 
mination of the jury. But those who have introduced the 
term “ dipsomania,” and who are the sole authorities who 
recognize it as a distinct disease, declare that it is not a “men- 
tal” disease at all; that it is exclusively a moral disease; and 
that it may coexist with a mind undiseased and sane. In order, 
therefore, to sustain the conclusions of the court, we are obliged 
to make “ mental” include “moral,” and thus expand the instruc- 
tions to include moral disease, or morbid condition of morals, 
as well as morbid condition of mind. The court, therefore, 
while nominally declining to define insanity, virtually defines it 
summarily, by making mental disease include moral disorder. 
§ 112. But it is ably argued by Judge Doe, in the case just 
referred to, that this is a question to be determined by experts 
who alone can define scientifically what insanity is. This 
position is hereafter fully discussed, when this particular point 
comes up for special examination.(/) It is sufficient at this 
point to state (1) that the question in criminal issues is not 
insanity but irresponsibility, which it is eminently important 
should be limited by positive definition by the highest judicial 
authority the State can constitute; and (2) that experts do not 
form such an authority, (a) because their sense, as a body, 
cannot be obtained by any process known to our courts, (b) 
because there is no independent court of experts, which on 
notice to both sides, and after argument, if necessary, can, 
when the experts called in a particular case conflict, give a 
judicial opinion upon the issue; and (c) because, in many cases 
of criminal defence, only those eccentric and exceptional 
experts are selected who believe in some wild theory which 
may help out the defendant’s case.(y) 
(e) State v. Pike, ut supra. 
(g) See also infra, §§ 194-200. 
(/) Infra, §§ 194-200. 
100 BOOK I.] 
WHAT AVOIDS RESPONSIBILITY FOR CRIME. 
[§ H4 
§ 113. Rejecting, therefore, as impracticable and unphilo- 
sophical,the suggestion to devolve on experts the determination 
of what “ mental disease” is, and what are its results, we fall 
back upon the question in its original, and what, indeed, must 
in this view he its final, state, and ask whether a jury is a body 
fit to lay down settled rules on this momentous subject. And in 
answering this, we must remember what the issue really is. 
It is simply “ responsible” or “ irresponsible,” an issue of all 
others the most vital, both to the party himself, whose civil 
existence depends on the result, and to the community, which 
is thus to be advised whether it is to cage him as a wild ani- 
mal, or to permit him to receive at once the discipline and the 
immunities which belong to a free citizen of a free state. Is 
it fit to intrust this question to the decision of a jury with 
instructions so vague as those which are given above ? Is a 
jury competent, when the matter is so left to it, to establish 
definite rules which will place the doctrine of responsibility on 
grounds which are just and safe ? 
§ 114. We submit they are not, for the following reasons: 
(1) They do not form a continuous body, prepared for their 
office, as are our courts of justice, by prior study. (2) The 
reasons of their decisions are not given, so that these decisions 
can form the basis of future decisions. Each decision stands 
by itself, not controlled by those which preceded it, and not 
controlling those which succeed. (3) There is no “ supreme” 
jury, by whom the decisions of “inferior” juries can be cor- 
rected and symmetrized. Hence, instead of obtaining in this 
way a definite and consistent body of law, which, whatever 
may be its merits, will at least be a rule of action, we will 
have a series of disjointed and conflicting edicts, from which 
no rule of action can be deduced. Yet, after all, it is system, 
uniformity, and consistency that penal law, in this respect, 
eminently needs. We may illustrate this by recurring again 
to the doctrine of moral insanity. If the existence of this 
disease, as conferring irresponsibility, be maintained, then the 
community will protect itself by putting persons “ morally 
insane” under permanent restraint. If the doctrine be denied, 
then such persons will, like all others, be subject to penal dis- 
cipline when they do wrong, and, if they persist in doing 
101 § 115] 
COURTS TO DETERMINE THE LAW. 
[book I. 
wrong, then their lives will be spent in prison. What is 
necessary, therefore, is not so much that this doctrine should 
be decided in any particular way, hut that there should be 
some decision, and that this decision should be expressly and 
positively announced and be made a precedent for future cases. 
But this is what a jury cannot do. In deciding the question 
whether “moral insanity” is a defence, no jury, if unguided 
by instructions of the court, will follow the precedents of for- 
mer cases, or establish a precedent by which future cases can 
be ruled. The whole lawq in this respect, will become a blank; 
and the doctrine of responsibility thrown into a chaos in which 
it will be impossible to determine who is responsible or irre- 
sponsible, sane or insane. 
§ 115. The definition of penal responsibility, therefore, is a 
high prerogative which judges, educated for the office as they 
are, and appointed by the State as the guardians at once of the 
sovereignty of the law and the liberty of the citizen, cannot 
surrender or divide.^1) The State has the right to call on 
them to establish a consistent system which the community 
may take for its guidance. Every man may be exposed to 
danger from others, and therefore every man has a right to 
know whether he must protect himself beforehand by appeal- 
ing for a commission of lunacy against his assailant, or must 
rely for redress on the ordinary common law process of indict- 
ment. Every man is liable to be seized at any moment by 
such commission of lunacy, and so, also, have a right to 
demand that there should be a definite line of responsible 
judicial decisions to determine under what circumstances we 
are to be deprived of liberty and estate. Even persons charged 
with crime have a right to be supplied with definite informa- 
tion of the law by which their defence can be shaped. And, 
above all, society at large has a right to expect that the law 
which regulates the relations of reason to crime(<72) should be 
mapped out with precision by learned jurists, dedicated by 
solemn sanctions to continuous judicial service, whose deci- 
sions on trial can be reviewed on appeal, and who, if incapable 
(g]) R. v. Richards, 1 F. & F. 87; see infra, §§ 190-200, 
(gr) See infra, §§ 183-188. 
102 BOOK I.] 
WIIAT AVOIDS RESPONSIBILITY FOR CRIME. 
[§ 116 
or corrupt, can be removed. Nor is the task one inconsistent 
with the judicial office. The determination of such questions, 
no doubt belongs to the highest philosophical jurisprudence 
but it is one which even the homeliest practical jurisprudence 
cannot avoid without serious injury to the State.(</3) 
§ 116. There is, however, a second preliminary difficulty 
that remains to be noticed before proceeding to an examination 
of the great question of criminal responsibility. The first has 
just been disposed of. The second, which is coeval with the 
existence of this branch of the law, arises from the opposite 
extreme, namely, from the desire to force into an inflexible 
and positive judicial code, special opinions delivered by judges 
when particular facts requiring such opinions were under 
examination. 
Thus, for instance, when a defendant, in whom there is no 
pretence of mania or homicidal insanity, claims to be exempt 
from punishment on the ground of incapacity to distinguish 
right from wrong, the court very properly tells the jury that 
the question for them to determine is, whether or no he labors 
under such particular incapacity. The error has been to seize 
such an expression as this as an arbitrary elementary dogma, 
and to insist on its application to all other cases. Or, take the 
converse, and suppose the defence is merely homicidal insanity. 
In such a case it would be very proper to tell the jury that, 
unless they believe the homicidal impulse to have been uncon- 
trollable, they must convict. And yet nothing would be 
more unjust than to make this proposition, true in itself, a 
general rule to bear on such cases as idiocy. It is proposed to 
avoid this difficulty by treating this question practically, in 
the only way in which it can arise in courts, and to consider 
briefly, not what is the general limit of moral responsibility 
in the abstract, but in what cases such responsibility ceases to 
exist.(A) These will be considered as follows:— 
(g3) See §§ 185-189, and especially Mr. Bain’s remarkable argument in § 
188. 
(h) The difficulty in this respect has been increased by the looseness with 
which legal adjudications are cited by even some of the more eminent text- 
writers. In fact, while the exigencies of counsel and the duty of judges re- 
quire a constant recourse to the text-books on this particular science, in mak- 
103 §116] 
INSANITY AS A CRIMINAL DEFENCE. 
[BOOK I. 
(a1) Where the defendant is incapable of distinguishing right 
FROM WRONG IN REFERENCE TO THE PARTICULAR ACT. 
(bl) Where the defendant is acting under an insane delusion as 
TO CIRCUMSTANCES, WHICH, IF TRUE, WOULD RELIEVE THE ACT 
FROM RESPONSIBILITY, OR WHERE HIS REASONING POWERS ARE SO 
DEPRAVED AS TO MAKE TnE COMMISSION OF THE PARTICULAR ACT 
TnE NATURAL CONSEQUENCE OF THE DELUSION, § 125. 
ing up such text-hooks the authorized law reports have not been sufficiently 
relied upon. 
Of the mistakes arising from looseness of citation in this respect, we may 
take as an illustration Wood’s case, which is invoked by Dr. Winslow, in 
his Lectures on Insanity (p. 102), to show that in America “ a verdict of 
lunacy” will be recorded under circumstances which really show nothing 
more than vehement passion and morbid excitement. In that case, which 
occurred in Philadelphia in 1838, a father shot his daughter in a paroxysm 
of rage, caused by her improvident marriage. The prosecution was aban- 
doned by the attorney-general, under circumstances which were not at all 
connected with the defendant’s sanity or insanity; and a verdict of acquittal 
was rendered, not of lunacy, in the teeth of a charge from the very able and 
humane judge (Judge King) who tried the case, that the defence of insanity 
had not been in any degree substantiated. The verdict is no authority what- 
ever. It was produced by circumstances very derogatory to public justice, it 
was received with unbroken disapprobation by the entire community, and it 
was in direct opposition to the charge of the court, instead of being respon- 
sive to it. Had the official report of the case been resorted to, the last fact, 
at least, would have been discovered. 
Newspaper and other unofficial reports, in fact, however interesting, are of 
no legal authority, and they should be to a peculiar degree received with the 
qualifications which should be attached to cases decided at nisi prius. What 
a judge tells a jury is meant for a particular issue. If the evidence should 
show an old grudge, his duty would undoubtedly be to say to the jury that 
drunkenness must be left entirely out of consideration. If the defendant and 
the deceased were mere strangers, and the defendant in sudden passion, from 
what, to a man in his state of mind, would be adequate provocation, killed 
the deceased, it would be proper to tell the jury that drunkenness in this case 
would lower the offence to manslaughter. It is plain, however, that expressions 
directed to a particular state of facts, cannot properly be severed from the con- 
text, and propounded as absolute independent principles applicable to all 
cases whatever. It is only by carefully marshalling the facts that we learn 
what the opinion of the judge trying the case really was, and even then, the 
position of the court, the opportunities it has possessed for revision and a con- 
sultation of authorities after argument, and the authenticity and accuracy of 
the report, enter largely into the question how far the opinion so expressed is 
of weight. 
104 BOOK I.] 
DISTINGUISHING RIGHT FROM WRONG. 
[§ 117 
(c1) WnERE THE DEFENDANT, BEING INSANE, IS FORCED BY AN IRRESIST- 
IBLE IMPULSE TO DO THE PARTICULAR ACT, § 146. 
(<?) “Moral insanity” (i. e. a supposed insanity of the moral sys- 
tem CLAIMED TO COEXIST WITH MENTAL SANITY) IS NO DEFENCE, 
§ 163. 
(el) While experts may be called to testify as to states of mind 
AND CONDITIONS OF HEALTH, IT IS FOR THE COURT TO DECLARE 
WHETHER SUCH STATES AND CONDITIONS CONSTITUTE IRRESPON- 
SIBILITY, § 190. 
(/') Predisposition to insanity as lowering grade of guilt, § 200. 
(g]) Capacity of insane defendants to plead, § 200a. 
(a1) Where the defendant is incapable op distinguishing 
RIGHT FROM WRONG IN REFERENCE TO THE PARTICULAR ACT. 
§ 117. Under this head maybe enumerated persons afflicted 
with idiocy or with general mania. It is certain that wherever 
such incapacity is shown to exist, the court will direct an 
acquittal; or if a jury should convict in the teeth of such 
instructions, the court will set the verdict aside. The authori- 
ties to this effect are so numerous, that a general reference to 
them is all that is here necessary; it being observed at the 
same time, that while the earlier cases lean to the position 
that such depravation of understanding must be general, it is 
now conceded that it is enough, if it is shown to have existed 
in reference to the particular act.(i) 
The English law in this relation took definite and final 
shape in the answer of the fifteen judges to the question 
(i) See 1 Inst. 247 ; Bac. Abr. Idiot. Co. Litt. 247, (a) ; 1 Russ, on Cr. by 
Greaves, 13 ; 1 Hawk. cl. s. 3 ; 4 Bla. Com. 24; Collinson on Lunacy, 573, 
673, (n) ; R. v. Oxford, 9 C. & P. 533; Burrow’s Case, 1 Lewin, 238 ; R. v. 
Goode, 7 Ad. & El. 536 ; 67 Hans. Par. Deb. 728 ; Bowler’s Case, Hadfield’s 
Case, ibid. 480 ; 1 Russ. 11; 27 How. St. Tr. 1316 ; Com. v. Rogers, 7 Mete. 
500 ; 7 Bost. Law Rep. 449 ; Com. v. Mosler, 4 Barr, 267 ; Freeman v. People, 
4Denio, 10 ; State v. Spencer, 1 Zabriskie, 196 ; State v. Gardiner, Wright’s 
Ohio R. 392 ; Com. v. Farkin, 3 Penn. L. J. 483 ; Vance v. Com., 2 Virg. C. 
132 ; McAllister v. State, 17 Alab. 434; U. S. v. Shults, 6 McLean, 121 ; 
People v. Sprague, 2 Parker C. R. 43; State v. Hunting, 21 Miss. (6 Bennet) 
464; R. v. Barton, 3 Cox C. C. 275; R. v. Offord, 5 C. & P. 168; R. v. Ilig- 
ginson, 1 C. & K. 129; R. v. Stokes, 3 C. & K. 185 ; R. v. Layton, 4 Cox, 
C.C. 149; R. v. Vaughan, 1 Cox, C. C. 80 ; People v. Coffman, 24 Cal. 230; 
Com. v. Heath, 11 Gray, 303; State v. Lawrence, 57 Me. 574. 
105 106 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
propounded to them the House of Lords in June, 1843. 
“The jury,” they said, “ought to be told in all cases that every 
man is presumed to be sane, and to possess a sufficient degree 
of reason to be responsible for his crimes until the contrary 
be proved to their satisfaction ; and that to establish a defence 
on the ground of insanity, it must be clearly proved that at 
the time of committing the act, the party 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 he was doing 
what was wrong.”(i) 
§ 118. Severe, however, as the rule is, viewing it as an 
abstract proposition, the English judges have not been unin- 
dulgent when determining as to the amount of evidence from 
which ignorance as to right and wrong may be inferred. 
Thus, a married woman having killed her husband immediately 
after an apparent recovery from a disease (the result of child- 
birth), which caused a great loss of blood, and exhausted the 
vessels of the brain, and thus so weakened its power, and 
so tended to produce insane delusions of the senses, which, 
while suffering under such disease, she complained of, and 
which, by her own account, had been renewed at the time of 
the act of homicide (although they were not such as would 
lead to it): these facts were held by Erie, J., to be evidence 
from which a jury might properly find that she was not in 
such a state of mind at the time of the act as to know its 
nature or be accountable for it.(/c) 
So, also, where a married woman, fondly attached to her 
children, and apparently most happy in her family, had 
poisoned two of them with some evidence of deliberation and 
design ; but it appeared that there was insanity in her family ; 
and, from her demeanor before and after the act, which, 
although not wholly irrational, yet was strangely erratic and 
excited; and from recent antecedents, and the presence of 
certain exciting causes of insanity, and her own account of 
O') See 1 Car. and K. 134; 8 Scott N. R. 595. 
(k) R. v. Law, 2 F. & F. 836. 
106 BOOK I.] 
DISTINGUISHING RIGHT FROM WRONG. 
[§ 120 
her sensations, the medical men were of opinion that she was 
laboring under actual cerebral disease, and that she was in a 
paroxysm of insanity at the time of the act; thi3 was left by 
Wightman, J., to the jury, as evidence on which they might 
rightly find her not guilty on the ground of insanity.(T) 
§ 119. Is, however, the “right and wrong” test to be that 
by which all cases of penal insanity are to be tested ? The 
negative will be presently argued; and it will be maintained 
that the defence of insanity is also sustained, wdien (1) there 
is an insane delusion from which the crime emanates, and (2) 
when, being insane, the defendant is forced to the act by an 
irresistible impulse; he in each case knowing the act is 
forbidden by the laws of the land. But it is proper here to 
state that by the courts of England,(m) of Massachusetts,(n) 
of Hew York,(o) and perhaps a majority of the American 
States, in decisions to which reference has been already made, 
the two forms of defence which have been just stated are 
rejected, and the “right and wrong” test with greater or less 
emphasis, is declared to be that by which alone insanity, as a 
defence, is to be defined. Did the defendant know enough to 
distinguish right from wrong as to the particular case? If 
so, the defence of insanity is not made out. If not, he is to 
be acquitted. In England this rule continues to be laid down, 
in cases which will be hereafter fully discussed, with inexo- 
rable rigor; and such is the unanimity with which it is 
uttered, that there is no probability of its being changed 
except by act of parliament. And that an act of parliament 
to this effect should be passed, is, as has been judicially 
stated, most unlikely. 
§ 120. In view of the solemn and repeated reannouncement 
of this rule, by authorities so eminent and in face of the 
(l) R. v. Vyse, 3 F. & F. 247. 
(to) See, in addition to cases cited above, R. v. Oxford, An. Reg. 1840, pt. 
ii., p. 262 ; R. v. McNaughten, ibid., 1843, pt. ii., p. 35; R. v. Watson, and R. 
v. Edmunds (1871), cited infra, and cases in § 152, note (n3). 
(n) Com. v. Rogers, 7 Mete. 500 ; Pam. Rep., 149-166 ; Com. v. Heath, 11 
Gray, 303. 
(o) Freeman v. People, 4 Denio, 78. 
107 §122] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
vehement opposition it has met with, it would be folly to 
consider the question as at rest, or now (1872), to reaffirm, 
without anxious re-examination, the expansions of the law of 
legal insanity which were suggested in the former editions of 
this work. Nor can we, when we enter on this re-examination, 
fail to see that there is much in the “ right and wrong” test 
that must commend it to the judicial mind. Penal law is a 
general system, applicable to all moral agents, exacting certain 
duties, and prohibiting that which the law-maker considers to 
be wrong. A moral agent is one who knows right from 
wrong. To all moral agents, therefore, the law directs its 
precepts.^1) It cannot, however, forbid, without punishing 
in case of disobedience; for prohibition without punishment 
ceases to he prohibition. The strain, it is true, in this chain 
of argument, is on the assumption that an insane person who 
knows right from wrong is a “moral agent.” Is he such, even 
in a modified sense, to such an extent as to make him the 
subject of penal discipline? Now, it is conceded by those 
having charge of lunatics, that they are the subjects of moral 
discipline. In fact, the police system which prevails in all 
lunatic asylums assumes this, even should we cast aside the 
abundant general testimony from experts that lunatics are, 
as a rule, open to the influence of fear of punishment. If so, 
do they differ, except in degree, from men who are the slaves 
of passion, or the victims of demoralizing education ? Miti- 
gation of guilt, indeed, and diminished responsibility, may be 
claimed for them on account of their infirmity; but, as penal 
law can control their outbursts, the interests of society 
require that over them penal law should continue to assert 
its control. 
§ 121. Yet, admitting the force of this, there are prepon- 
derating reasons which lead us again (1872), to assert the 
qualifications we expressed in former editions of this work. 
That the “ right and wrong” test does not cover all the cases 
of legitimate insane irresponsibility, will now be shown. 
§ 122. Medical and psychological observation, based on an 
induction which each year makes at once more extended in 
(o') See infra, §§ 183-188. 
108 BOOK i.] 
DISTINGUISHING RIGHT FROM WRONG. 
[§ 122 
its materials and more absolute in its results, tells us that there 
are persons unquestionably insane who are capable of being 
instructed in the “ law of the land,” of knowing what this 
law is, both in its general character and its results, and of 
being deterred by proper sanction, from breaking such law.(o2) 
What is to be done with sucli lunatics, on the test which is 
above given ? Are they to be punished, as if they were sane, 
if they happen to violate a law of which they are aware? 
This undoubtedly is one of the most profound and delicate 
questions which penal jurisprudence can approach. The 
recent North German Code has endeavored to solve the diffi- 
culty by establishing in such cases what is called diminished 
responsibility, followed, in cases of conviction, by penalties 
graduated on a milder scale than those which are visited on 
the entirely sane. And, assuming, as is really the case, that 
there are grades of insanity just as there are grades of sanity, 
and that the two melt together at their juncture almost imper- 
ceptibly as do day and night in twilight,(p) it is philosophically 
just, that in the lower grades of sanity, and in the more 
“ rational” and responsible grades of insanity, such a rule 
should be imposed. If it be not, either will society be exposed 
to the unnecessary peril of having its order disturbed by the 
inroads of a class of men who are not insane enough to be 
constantly confined, but are too insane to be punished, or the 
great cruelty would be inflicted on this very class, whom a just 
and humane penal system could restrain, of shutting them 
up for life in asylums. The Anglo-American common law 
reaches somewhat the same remedy by declaring, as will here- 
after be seen, that there are certain abnormal states of mind, 
e.g., drunkenness, and by the same process of reasoning, exal- 
tation and excitement produced by cerebral disease, which, 
while they do not destroy responsibility, or justify a jury in 
rendering a verdict of not guilty as to the fact of guilt, neu- 
tralize the presumption of malice and of premeditated intent, 
and lead, therefore, to a conviction of the offence charged in 
its minor and less aggravated stages. Particularly is this the 
case in prosecutions for homicide, where, in cases of mental 
(o2) See infra, §§ 378, 389, 410. 
(p) See supra, § 50. 
109 § 125] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
turmoil, excitement, or debility, the specific and deliberate 
and cool intent to take life, essential, in most American States, 
to murder in the first degree, is not capable of proof, and in 
which, therefore, the verdict is properly murder in the second 
degree, or manslaughter.^?1) 
§ 123. But there are phases of insanity to which even this 
attribute of “diminished” responsibility cannot with any 
justice be applied. That the so-called “moral” insanity (i.e. a 
supposed condition in which the moral system is insane but 
the mental sane), is not one of these phases, will be hereafter 
abundantly shown.^) 
§ 124. But it is otherwise with insanity accompanied with 
delusions of such a character that the patient believes he is 
authorized by superior authority to dispense with the law of 
the land, and with insanity one of wdiose elements is an 
impulse to commit crime which the reason is unable to resist. 
If there be such phases of insanity as these, it is clear that 
their subjects are not responsible to the ordinary processes of 
penal justice. Yet such patients the “right and wrong” test 
might pronounce sane. In such cases, therefore, this test 
cannot be exclusively applied. 
(bl) When the defendant is acting under an insane delusion 
AS TO CIRCUMSTANCES, WHICH, IF TRUE, WOULD RELIEVE THE 
ACT FROM RESPONSIBILITY, OR WHERE HIS REASONING POWERS 
ARE SO DEPRAVED AS TO MAKE THE COMMISSION OF THE 
PARTICULAR ACT THE NATURAL CONSEQUENCE OF THE DELUSION. 
\_For several valuable medico-juridical opinions in cases of alleged 
delusions, see infra, Appendix, §§ 833, 834, 837, 843.] 
§ 125. The answer of the English judges on this point 
requires special comment. The question propounded to them 
in this respect was, “ If a person, under an insane delusion as 
to existing facts, commits an offence in consequence thereof, 
is he thereby excused?” “To which question,” they replied, 
“the answer must of course depend on the nature of the 
delusion ; but, makiug the same assumption as we did before, 
ip1) See infra, §§ 181, 200. (q) See infra, §§ 163, 189, 533, 567. 
110 BOOK I.] 
[§ 126 
INSANE DELUSION. 
namely, that he labors under such partial delusion only, and 
is not in other respects insane, we think he must be con- 
sidered in the same situation as to responsibility, as if the 
facts with respect to which the delusion exists, were real. 
For example: if, under the influence of his delusion, he sup- 
poses 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 his delusion was, 
that the deceased had inflicted a serious injury to his cha- 
racter and fortune, and he killed him in revenge for such sup- 
posed injury, he would be liable to punishment.” 
§ 126. So far as the law thus stated goes—and it is stated 
with extreme caution—it has been always recognized as 
binding in this country. Even where there is no pretence of 
insanity, it has been held in one State, that, if a man, though 
in no danger of serious bodily harm, through fear, alarm, or 
cowardice, kill another under the impression that great bodily 
injury is about to be inflicted on him, it is neither manslaughter 
nor murder, but self-defence ;(r) and though this proposition 
is too broadly stated, as is remarked by Bronson, J., when 
commenting on it afterwards in Hew York, and should be 
so qualified as to make it necessary that there should be facts 
and circumstances existing which would lead the jury to 
believe that the defendant had reasonable (in proportion to 
his own lights) grounds for his belief, yet with this qualifica- 
tion it is now generally received.(s) And, indeed, as shown 
by Mr. Justice Bronson, in the case just noticed, after the 
general though tardy acquiescence in Selfridge’s case, where 
the same view was taken as early as 1805, by Chief Justice 
Parker, of Massachusetts, and after the almost literal incor- 
(r) Granger v. State, 5 Yerger, 459. 
(s) Shorter v. People, 2 Comstock, 197-202, S. C., 4 Barb. 460 ; Monroe v. 
State, 5 Geo. 85; State ». Scott, 4 Iredell, 409 ; People v. McLeod, 1 Hill, 
420 ; People v. Pine, 2 Barbour, 168 ; Roberts v. State, 2 Georg. 310 ; Com. v. 
Rogers, supra. See generally Wharton on Homicide, 216, 7, 8, 9,etc., and 
Whart. C. L. §§ 1024-8, and a very interesting series of notes in 7 Bost. Law 
Rep. (N. S.) 575, 689, etc. See also Sloo’s case, reported in 15 Am. Journ. 
Ins. 33 ; McFarland’s case, 8 Abbott, N. Y. Prac. C. N.S. 69 ; and 1 Bennett’s 
Leading Cases, 100. 
111 112 
[book i. 
INSANITY AS A CRIMINAL DEFENCE. 
poration of the leading distinctions of the latter case in the 
Revised Statutes of New York, as well as into the judicial 
system of most of the States, the point must be considered as 
finally at rest. Perhaps the doctrine, as laid down originally 
in Selfridge’s case, would have met with a much earlier 
acquiescence had not the supposed political bias of the court 
in that extraordinary trial, and the remarkable laxity shown 
in the framing the bill and in the adjustment of bail, led to a 
deep-seated professional prejudice which struck at even such 
parts of the charge as were indisputably sound.(0 
§ 127. As understood in present English practice, the 
delusions which indicate a defect of sanity such as will relieve 
a person from criminal responsibility, are delusions of the 
senses, or such as relate to facts or objects—not mere wrong 
notions or impressions, or of a moral nature; and the aberration 
must be mental, not moral, to affect the intellect of the indi- 
vidual. It is not enough that they show a diseased or a 
depraved state of mind, or an aberration of the moral feelings, 
the sense of right and wrong being still, although it may be 
perverted, yet not destroyed; and the theory of a moral 
insanity or insanity of the moral feelings, while the sense of 
(t) In another work (Wharton’s C. L. 2d ed. 390), the present writer 
went into a critical examination of Selfridge’s case, and advanced the opinion 
that the verdict, as well as the preliminary proceedings, were inconsistent 
with a just appreciation of human life, and with the dignity of public justice. 
This view is by no means retracted; and the gradual development of the 
political correspondence of those days shows that an approval of Selfridge’s 
course—the shooting down by a man of thirty of a lad of eighteen, then an 
undergraduate in Harvard College, because the latter thought proper to sup- 
pose that the former, whose father he had just posted, might be ready to 
avenge the insult—was made a party test. Indeed, John Adams (Cunning. 
Cor. 70) tells us that “the great political parties in the State were arranged 
under their respective standards on the simple question of the guilt or inno- 
cence of an individual under a criminal accusation.” But it is due to the 
excellent jurist who presided at the trial to say that, however, in the reception 
and adjustment of bail—two thousand dollars—he may have been influenced 
by those political heats to which even the bench in those times was subject, 
his charge is a fair statement of the English common law, as adapted to our 
social condition. And, however great may have been the zeal with which the 
case has been assailed, it is now impossible to refuse to recognize it as having 
been largely and definitely influential in settling this branch of American 
jurisprudence. 
112 BOOK I.] 
INSANE DELUSION. 
[§ 129 
right and wrong remains, is not to he reconciled with the 
legal doctrine on the subject.(w) 
It is further held that where, upon a trial for murder, the 
plea of insanity is set up, the question for the jury is: Did 
the prisoner do the act under a delusion, believing it to be 
other than it was ? If he knew what he was doing, and that 
it was likely to cause death, and was contrary to the law of 
God and man, and that the law directed that persons who did 
such acts should be punished, he is guilty of murder.(y) 
§ 128. In Levett’s case, which has never been questioned, 
and which has been sanctioned by the most rigid of the 
common law jurists, it was held a sufficient defence to an 
indictment for murder, that the mortal blow was struck by 
the defendant under the delusion that the deceased was a 
robber, who had entered the liouse.(w) 
§ 129. In none of the cases which have just been noticed, 
is the actual existence of danger an essential ingredient, and 
certainly, as the intentions of an assailant are incapable of 
positive ascertainment, such a danger can never be absolutely 
shown to exist. It is true, that, when the point has not been 
directly before the judicial mind, dicta have been thrown out 
to the effect that the danger must be such as to alarm a 
reasonable man; but, whenever the requisite state of facts has 
been presented, courts have not hesitated to say that the 
danger must he estimated, not by the jury’s standard, but by 
that of the defendant himself. Thus, a very enlightened and 
learned judge in Pennsylvania, one who would be among the 
last to weaken any of the sanctions of human life, in a late 
case directed the jury to take into consideration “the relative 
characters, as individuals,” of the deceased and the defendant, 
and, in determining whether the danger really was imminent 
or not, to inquire “ whether the deceased was bold, strong, and 
of a violent and vindictive character, and the defendant much 
weaker, and of a timid disposition.” And to the same effect 
O) R. v. Burton, 3F.&F. 772. 
(») R. v. Townley, 3 F. &F. 839 ; see also infra, §§ 165, 170. 
(w) Levett’s case, Cro. Car. 438, 1 Hale, 42, 474, Wharton’s C. L. §§ 18, 
1027. 
VOL. I.—8 
113 114 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
will be found the cases in other American courts elsewhere 
more particularly noticed.(:r) 
§ 130. If, therefore, a delusion that a party is in danger, 
whether such delusion be the result of insanity or of physical 
causes, is a justification of violence adequate to remove the 
supposed danger—and the answer of the English judges on 
this point corresponds with our own—it is difficult to avoid 
the conclusion, that a delusion as to the amount of force 
necessary to obviate the imagined attack should be equally 
potent. Thus, for instance, it is stated by the English judges, 
that if the party is under an insane delusion that the deceased 
is about to take his life, and he kills him to prevent it, he is 
to be exempt from punishment. The gist of this position con- 
sists in the delusion. If, therefore, by an insane delusion, or 
depravation of the reasoning faculty, the defendant insanely 
believes, either that the imagined evil is so intolerable as to 
make life-taking necessary or justifiable in order to avert it, 
or that, while the evil is of a lesser grade, life-taking is an ap- 
propriate and just way of getting rid of it, the same reasoning 
applies. The principle may logically be stated thus:— 
1. Any species of insane delusion exempts from punishment 
the perpetrator of an act committed under its influence. 
2. The belief, unfounded in fact, that a party is in immedi- 
ate danger of his life from another, is such a delusion. 
Or the belief that taking the life of another is the appropri- 
ate remedy for a minor though imagined evil, is also such a 
delusion. 
3. Therefore, homicide, under either of these beliefs, is not 
liable to punishment.^/) 
§ 131. The minor premise, it will at once be seen, may be 
varied, without weakening the conclusion, by inserting in its 
(a) See Wh. C. L. §§ 641, etc., 1026-7. 
(y) It is important that by “punishment,” as here used, should be under- 
stood such punishment as is inflicted on persons of sound mind. It is essen- 
tial, however, to the policy of the present more humane mode of treatment 
for the insane, that, in all cases where a party is acquitted on ground of 
insanity, strict confinement should be directed, in such a way as will exempt 
the community from any probable recurrence of such delirious outrages. 
This will hereafter be more fully considered : infra, § 775. 
114 BOOK I.] 
115 
INSANE DELUSION. 
place any insane delusion, the existence of which would 
deprive the act of guilty consciousness. That an insane delu- 
sion, as to the value or meaning of human life, will have this 
effect, even though the party himself knows when committing 
the act that he is doing wrong, and is violating the laws of 
the land, is illustrated by Lord Erskine, in a well-known 
case: “Let me suppose,” he said, “the character of an insane 
delusion consisted in the belief that some given person was 
any brute animal, or an inanimate being (and such cases have 
existed), and that, upon the trial of such a lunatic for murder, 
you, being on your oaths, were convinced, upon the uncontra- 
dicted evidence of one hundred persons, that he believed the 
man he had destroyed to have been a potter’s vessel; that it 
was quite impossible to doubt that fact, although to other 
intents and purposes he was sane—answering, reasoning, act- 
ing as men not in any manner tainted with insanity converse 
and reason and conduct themselves. Suppose, further, that he 
believed the man whom he destroyed, but whom he destroyed 
as a potter’s vessel, to be the property of another, and that he 
had malice against such supposed person, and that he meant 
to injure him, knowing the act he was doing to be malicious 
and injurious; and that, in short, he had full knowledge of all 
principles of good and evil; yet would it be possible to convict 
such a person of murder, if, from the influence of the disease, 
he was ignorant of the relation in which he stood to the man 
he had destroyed, and was utterly unconscious that he had 
struck at the life of a human being ?”(y1) 
§ 132. An instance of an hallucination, founded on an 
intended auricular deception, is given in Charles Brockden 
Brown’s novel of Wieland, and is well known to be founded 
on facts. A man of excessively morbid temperament is so 
wrought up by ventriloquism, as to believe himself under 
supernatural command to kill his wife. He does so under the 
stress of what he conceives to be a pure legal necessity. A 
similar case may be supposed in a sincere believer in spirit- 
rapping, who is ordered by the medium to commit a violation 
of the law. In this case the medium is the principal in the 
(y]) Winslow on Plea of Insanity, 6. 
115 §133] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
first degree, but the actual perpetrator of the act, under the 
present condition of the law, is entitled to a judicial affirma- 
tion of insanity. Similar delusions in cases of sleep-drunken- 
ness have been held to confer irresponsibility. At the same 
time it is very important that in all such cases future restraint 
should be applied, until a sound condition of the reason be 
restored.^) 
§ 133. A man fancies himself to be the Grand Lama or 
Alexander the Great, and supposes that his neighbor is 
brought before him for an invasion of his sovereignty, and he 
cuts off his head or throttles him. He knows he is doing 
wrong ; perhaps, from a sense of guilt, he conceals the body; 
he may have a clear perception of the legal consequences of 
the act. According to Mr. Wigan, such an association of a 
consciousness of the objective guilt and consequences of an act 
with an insane delusion, as to its subjective relation, is readily 
explained on the principle of the duality of the human mind ; 
but, however this may be, it is a matter in which all observers 
agree that the lunatic is, in most instances, conscious of the 
moral relations of his conduct.(a) Hor, even under the severe 
tests of the older English text writers (who have, by their 
failure to reach this point, demonstrated how dangerous it is, 
with our imperfect experience, to attempt to codify or dogma- 
tize the laws in a few absolute propositions), has this truth 
evaded the practical recognition of the courts. Thus, in a case 
where it was proved that the defendant had taken the life of 
another under the notion that he was set about with a con- 
spiracy to subject him to imprisonment and death, Lord Lynd- 
liurst, while quoting, with apparent entire acquiescence, Hale’s 
doctrine, as affirmed by Sir James Mansfield in Bellingham’s 
case, thought it not too liberal a sweep for him to tell the jury 
that they might “acquit the prisoner on the ground of 
insanity, if he did not know, when he committed the act, what 
(2) Infra, §§ 482-492. 
(a) Wigan on Insanity, etc., London, 1844, 65 ; Winslow, Plea of Insanity, 
16 ; Ray. Med. Jur. of Ins. § 17; Siebold Gericht Med. § 219 ; Pinel, Trait6 
sur alienation mentale, 2d ed., Par. 1809, 156 ; Riel, Fieberlelire, 4 Bd. 896 ; 
Groos, Die Lelire yon der Mania sine Delirio, Heidelberg, 1830; De Bois- 
mont on Halluc., Phil. 1853, 506. 
116 BOOK I.] 
INSANE DELUSION. 
[§ 135 
the effect of it was with reference to the crime of murder.” 
Now, an acquittal would he easy enough if it be necessary, in 
order to create responsibility, that the party should know the 
effect of the act with reference to a question whose meaning, 
even to the court itself, appears to have been enveloped in so 
much mist. But there can be no doubt, after careful examin- 
ation of the whole case, that the point Lord Lyndhurst 
decided was, that a man who, under an insane delusion, shoots 
another, is irresponsible when the act is the product of the 
delusion. Such, indeed, on general reasoning, must be held to 
be the law in this country, and such will it be held to be when 
any particular case arises which requires its application. The 
fact that against this view militate certain expressions—obiter 
dicta—in recorded opinions, as well as in the answers of the Eng- 
lish judges, will not prevent its practical recognition, any more 
than Lord Lyndhurst was prevented, by the first class of au- 
thorities, from advising the acquittal of Offord, and afterwards 
maintaining that the acquittal was consistent with the very 
precedents now cited against it. 
§ 134. In America, the principle is too well settled to ad- 
mit of dispute. “Monomania,” said Chief Justice Shaw, in 
1844,(6) in an opinion hereafter to be more fully quoted, “ may 
operate as an excuse for a criminal act,” when “ the delusion 
is such that the person under its influence has a real and firm 
belief of some fact, not true in itself, but which, if it were true, 
would excuse his act; as where the belief is that the party 
killed had an immediate design upon his life, and under that 
belief the insane man kills in supposed self-defence. A com- 
mon instance is where he fully believes that the act he is doing is 
done by the immediate command of God, and he acts under the 
delusive but sincere belief that what he is doing is by the command, 
of a superior power, which supersedes all human laws and the laws 
of nature.” 
§ 135. In an. indictment for murder on the high seas, in the 
United States Circuit Court, sitting at Boston, in 1858, the de- 
fence being insanity, Judge Clifford charged the jury that the 
“test is the capacity to distinguish between right and wrong 
(b) Com. v. Rogers, 7 Mete. 500. 
117 §187] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
as to tlie particular act with which the accused is charged. 
If he understands the nature of his act, if he knows his act is 
criminal, and that if he does'it he will do wrong and deserve 
punishment, then, in the judgment of the law,' he has a 
criminal intent, and is not so far insane as to be exempt from 
criminal responsibility. On the other hand, if he is under such 
delusion as not to understand the nature of his act, or if he has 
not sufficient memory and reason and judgment to know 
that he is doing wrong, or not sufficient conscience to discern 
that his act is criminal and deserving punishment, then he is 
not responsible.”^) 
§ 186. If, however, there be reason enough to dispel the 
delusion; if the defendant obstinately refuses, under such 
circumstances, to listen to arguments by which the delusion 
could be dispelled; if, on the contrary, he cherishes such delu- 
sion, and makes it the pretext of wrongs to others, then he is 
responsible for such wrongs. Thus, in a case of homicide in 
Delaware, in 1851, the deceased being the defendant’s wife, 
and where the defence was delusion consisting in a belief that 
his wife was untrue to him, that his children were begotten 
by his wife’s intercourse with another, and that sundry con- 
jurations were being practised upon him, and the evidence 
showed that he was a shrewd and wealthy business man, the 
court charged the jury that if a person, otherwise rational, 
commit a homicide, though affected by delusions on subjects 
with which the act is connected, he is criminally responsible, 
if he were capable of the perception or consciousness of right 
and wrong as applied to the act, and had the ability through 
that consciousness to choose by an effort of the will whether 
he would do the deed.(<7) 
§ 137. The test, therefore, to which we are led is, is the 
delusion pleaded as a defence the delusion of an insane person ? 
If not, he has reason enough to dispel or correct it; and his 
(c) United States v. Holmes, 1 Clifford, 98. 
(d) State v. Windsor, 5 Harr. 512. The charge in this case cannot be 
complained of. .The verdict of the jury, however, on the facts hereafter 
exhibited, cannot be sustained ; as the defendant’s mind seems to have been 
so far shattered as to be without the power of dispelling the delusions in 
question. 
118 BOOK I.] 
INSANE DELUSION. 
[§ 139 
refusal to do so does not invest him with irresponsibility. 
Thus the Mormon prophets claim, it is said, a direct revela- 
tion permitting them to practise polygamy. Would they be 
permitted to plead their delusion in this respect as a bar to an 
indictment? Certainly not. And the reason is that they are 
shrewd, sane men, and must therefore be held responsible for 
their delusions. 
On the other hand, cases have not been infrequent in which 
parents, charged with the homicide of their children, have 
been permitted to show that they act under the stress of what 
they held to be a divine command; and, when it has been 
satisfactorily proved that such was their belief, they have been 
acquitted on the ground of irresponsibility. 
§ 138. What is the reason of this difference? It is simply 
in this: that in the first case there is no proof offered of 
insanity, and the defendants, in fact, are men whose shrewd- 
ness and business abilities show them to be eminently sane. 
In the other class of cases, there are no acquittals unless there 
is evidence of insanity aliunde. A sane man who kills his 
child under the stress of a supposed revelation, is as much 
responsible to penal justice as is the Mormon who, under a 
similar plea, commits bigamy. The question in each case is, 
was the defendant sane? Had he reason enough to know 
what the law of the land was, and to know he must not dis- 
obey it? If he had, he must bear the penalty of his disobe- 
dience. It is true that such insanity may be presumed to 
some extent from the nature of the act. Where an affectionate 
father kills his child, the presumption is strong, and requires 
little additional proof. In other cases, where the act is simply 
the gratification of passion, the presumption amounts to 
nothing. But in either case, to entitle the delusion to be a 
defence, insanity must, by some mode of proof, be made out. 
§ 139. If, rejecting this view that general sanity is the test, 
we say that the existence of a delusion by a sane person makes 
that person irresponsible, we expand the definition of irre- 
sponsibility, not only dangerously but unphilosophically. 
Multitudes of men whom it would be both absurd and mis- 
chievous to treat as irresponsible have apparent delusions or 
119 § 140] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
“fixed ideas.” Several illustrations of this have been already 
introduced.(e) One or two others may now be added. 
§ 140. Morel (1869) tells us of a French judge, whose 
official character was marked by the most exemplary efficiency, 
who separated from his family, took a room in a hotel, in 
which he permitted no visitors, and, when he went into the 
street, took great pains, in crossing the lines of the trottoir, lest 
he should, with such lines, make the form of a cross, which 
he held to he bad luck. Indeed we would find abundant 
illustrations of the proposition before us, even if we should 
confine ourselves to the history of judges—men whose time 
is spent in weighing evidence and declaring law, and men 
who apply to others, as they render for themselves, responsi- 
bility for all moral acts. Lord Kenyon could never overcome 
his fear of poverty, and his nervous dread of spending even a 
farthing except for necessities. Of Lord Stowell, even after 
he had accumulated an enormous fortune, Sir Henry Holland, 
who attended him as physician, writes: “Lord Alvanley’s 
description of him as a conceited Muscovy duck had an 
amusing personal reality about it, felt even by those who 
knew his high merits as a judge and master of international 
law. His house curiously illustrated the habits of the man, 
in its utter destitution of all the appliances of luxury and 
of comfort. The furniture was never either changed or cleaned. 
Year after year I wrote prescriptions there with the same soli- 
tary pen—the single one, I believe, in his possession, and rarely 
used by himself after his retirement from public business.” 
Of Lord Erskine, Sir Henry Holland tells us that “his mind, 
too, when I knew him, was clouded by little foibles and 
superstitions. I can recollect a dinner at Sir S. Romilly’s, 
where his agitation was curiously shown in his reluctance to 
sit down as one of thirteen at table, and by the relief he 
expressed when the fourteenth guest came in.” Lord Eldon 
labored under the delusion, that, even after he had really made 
up his mind, and had so expressed himself lucidly and con- 
clusively, there was still ground for him to doubt; and this 
habit was the cause of great delay to suitors, and of great 
(e) See supra, §§ 34-52 ; also infra, §§ 723-743. 
120 BOOK I.] 
INSANE DELUSION. 
[§ 141 
distress to himself. Lord Campbell tells us that Lord Lynd- 
hurst was governed by the delusions of physical, and Lord 
Brougham by those of intellectual vanity; and more than once 
in Lord Brougham’s life was “his mind clearly off its balance,” 
and so wild and violent were at one time its perturbations, 
that it was considered necessary to place him in seclusion.^1) 
Among American judges, analogous illustrations may be 
found. Judge Brackenridge, of Pennsylvania, is reported to 
have, on a very hot day, when holding court at Sunbury, 
gradually taken off his clothes, till at last he was naked. 
Judge Baldwin, of the Supreme Court of the United States, 
was a hypochondriac. A distinguished New England judge, 
it is said, imagined that a dropsical affection under which 
he labored was a sort of pregnancy. Yet in none of these 
cases was insanity ever charged. And the reason is this, that, 
whatever may have been the del usions or “ fixed ideas” of these 
eminent men, they had reason enough to conquer these delu- 
sions whenever this was necessary to avoid public censure. 
When they felt that they were beyond law, they would 
indulge their caprices. When they felt the pressure of law, 
then these delusions would be restrained. Thus Lord Chan- 
cellor Clare had, or feigned to have, so unconquerable an 
animosity to Curran, that he could not listen to that illus- 
trious advocate. But when Curran met this by one of the 
most powerful invectives that the records of forensic eloquence 
preserve, the “ irresistible impulse” was resisted. Lord Clare 
was not insane. He was simply a man of strong prejudices as 
well as of strong reason. When necessary—though only when 
necessary—reason would prevail. 
§ 141. With the sane, therefore, so far from delusion creating 
insanity, it is irresponsibility that creates delusion. Of this 
we might find many additional illustrations. A monk has 
an ecstatic vision. He tells the vision, and, instead of being 
rebuked, is admired; and visions speedily fill every monastic 
cell. Or a romantic poet, as wTas the case with so many in 
Germany when Hapoleon left to German thought no other 
province than that of imagination, imagines some heroic epoch 
(el) Edinb. Rev. Ap. 18G9. Camp. Brougham, p. 476. 
121 §142] 
[book i. 
INSANITY AS A CRIMINAL DEFENCE. 
of the past to which, like a troubadour knight, he consecrates 
his song. He is admired, and his ecstacies are imitated, until 
there springs up a whole school of Romanticists as wild as 
Don Quixote. Or, at a period of high religious enthusiasm, 
a woman breaks into hysteria. Instead of being put under 
medical care, she is injudiciously spoken of as exhibiting 
special religious feeling ; and hysterical symptoms burst out 
on every side. The delusion of an individual becomes, if 
unrebuked by public opinion, the epidemic of an epoch. 
§ 142. It being then accepted law that a delusion, by a sane 
person, does not make him irresponsible, let us inquire what, 
in cases of delusion, is the test of sanity. And here two dis- 
tinct psychical conditions are to be scrutinized. 
First, when the delusion is, as Dr. Liman happily describes 
it, the residuum of a prior insane state. Delirium has passed 
away, but the old disease still shows itself in the havoc it cre- 
ated, sometimes in mental debility, sometimes in the derange- 
ment of the mechanism of association and perception, leading 
to chimeras, to absurd prejudices, if not to hallucinations. 
This state, however, as Griesinger, a very capable medical psy- 
chologist of this date (1871), argues, is not the restoration of 
the equilibrium of sanity. The patients are not what they 
were in a sane state, plus some errors or delusions. They are 
thoroughly changed. There has been such a shock to the 
structure of the mind that, although it is apparently calm, it 
does not act with uniformity. The defect is internal; some- 
thing like that of a clock whose works have been deranged, 
and which, after being repaired, will sometimes strike a series 
of hours accurately, and then go wrong. The mere presence of 
a delusion, it is true, might not by itself prove the imperfect- 
ness of the recovery. But it is otherwise when the delusion 
is harbored, and when the patient has not power to throw 
it off. Thus it is that in such cases, the fact often is, not 
that the patient retains but a single insane delusion, but that 
an unsettled mind has taken the particular channel of this 
one delusion to pour itself out. A dam across one of our 
mountain streams is swept away, the stream first running 
over what is the lowest point in the dam’s crest. The diffi- 
culty is, not the lowness of this point, but the height of the 
122 BOOK I.] 
INSANE DELUSION. 
[§ 143 
stream, which, if it had not rushed over this point, would 
soon have rushed over another. Kraft-Ebing,(/) speaking 
from an experience of almost unequalled extent, tells us that 
the idea that a person may he sane generally, hut insane as to 
some particular delusions, is as inconsistent with practical 
observations as it is with sound psychology. And Dr. 
Liman (1871) quotes a speaker in the Paris Academy, as say- 
ing that a diligent search in all the Paris Hospitals would fail 
to bring to light a single case of “pure monomania” of this 
class.(y) 
§ 148. Secondly, however, there is a class to which Liman 
calls attention, in whom insanity has not yet been established, 
and yet as to whom, when delusions exist, the existence of 
such delusions may present a strong presumption of coming 
disease. This, he tells us, is peculiarly the case with those 
with hereditary disposition to sanity, with hypochondriacs, 
with “ candidates” for paralysis. It is found that with such 
persons, “fixed ideas,” as they are called, may exist, without 
developing into insanity, during a whole lifetime, because the 
patient can control them, because he is capable of recognizing 
them as prejudices, and because they have not become a part 
of himself. He cannot, it is true, dismiss the delusion, but he 
is conscious of its falsity, and hence, if necessary, can nerve 
himself against its influence. But, when this power over the 
delusion passes away; when the delusion not only cleaves to 
but controls the mind; when it is not simply a ray of eccen- 
tricity, but a radiating centre itself from which a series of 
subordinate false lights emanate; when the delusion, e. g. 
jealousy or fear, becomes a passion, growing on the mind on 
which it feeds, cancerously absorbing into itself the mind’s 
true life, and sending forth over the system its own streams of 
disease; when there are, in particular, sympathetic physical 
affections which either induce or respond to the mental dis- 
turbance, then we may infer that the patient is mastered by 
the delusion instead of being its master. In this class of cases 
(/) Vierteljahrsclirift f. Gericlit. Med. xiii. 1. 
(g) See fully infra, §§ 531-567, and supra, § 49. 
123 § 145] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
the delusion is the commencement, in the former the sequence, 
of settled insanity^/1) 
§ 144. As a natural result of the view above expressed, it is 
allowable for the prosecution when an insane “ delusion” is set 
up for a defence, to offer evidence to show that the “ delusion” 
was sane, in other words, was an opinion which ordinary pro- 
cesses of reasoning might have produced. Thus, in an inter- 
esting case already referred to^y1) which was tried in hTew 
Hampshire in 1871, the defendant being held for the murder 
of his wife, evidence was introduced tending to show that 
he believed his wife guilty of adultery with one F., and that 
he killed her for that reason; also that, during the trial, de- 
fendant had said his belief in his wife’s infidelity was founded 
not only on public rumor, hut, also, on his own observation; 
and it was claimed for him that this belief was an insane delu- 
sion. It was held that evidence tending to show the existence 
of such a common rumor in the village where defendant and 
his wife lived was properly received. And it was further ruled 
that, as bearing upon the question of sanity, the State was 
properly allowed to prove to a large extent the history of de- 
fendant, including his treatment of his wife and children, his 
health, intemperance, impulsive temperament, excitable nature, 
quarrels, wrangling, making preparations and threats to shoot 
a neighbor, and violent conduct at various times during a 
period of many years before the death of his wife.(A) 
§ 145. In accordance with the analogies already laid down(/d) 
and in obedience to the general line of American authority, 
we must also hold that a delusion, even by a person whose 
mind is so unsound that the delusion becomes involuntary and 
incorrigible, is no defence to an indictment for a crime not its 
immediate product.(z) Of this Dr. Caspar gives us a striking 
(/*) See the subject of delusions discussed at large, infra, §§ 723-743. 
(<7') Supra, § 108. 
(7i) Com. v. Haskell, 2 Brewster, 491. See this viewed psychologically, 
infra, §§ 393, 723-743. 
(A1) Supra, §§ 34-60. 
(i) State «. Hunting, 21 Missis. (6 Bennett) 464; Bovard v. State, 30 
Missis. (1 George) 600 ; Com. v. Mosler, 4 Barr, 266; State v. Grant, 13 
Minnes. 341; State v. Lawrence, 57 Maine 574. In New York, in Free- 
124 BOOK I.] 
insane’ delusion. 
[§ 145 
illustration. A merchant, named Schraber, was convicted of 
cheating by false pretences and false information, and was sen- 
man’s case, Beardsley, C. J., said, that “ A state of general insanity, the 
mental powers being wholly perverted or obliterated, would necessarily pre- 
clude a trial; for a being in that deplorable condition can make no defence 
whatever. Not so, however, where the disease is partial, and confined to one 
subject, other than the imputed crime and contemplated trial. A person in 
this condition may be fully competent to understand his situation in respect 
to the alleged offence, and to conduct his defence with discretion and reason. 
Of this the jury must judge, and they should be instructed, that, if such is 
found to be his condition, it will be their duty to pronounce him sane. In 
the case at the bar, the court professed to furnish a single criterion of sanity, 
that is, a capacity to distinguish between right and wrong. This, as a test of 
insanity, is by no means invariably correct; for, while a person has a very 
just perception of the moral qualities of most actions, he may, at the same 
time, as to some one in particular, be absolutely insane, and consequently as 
to this be incapable of judging accurately between right and wrong. If the 
delusion extends to the alleged crime, or the contemplated trial, the party man- 
ifestly is not in a fit condition to make his defence, however sound his mind 
may be in other respects; still, the insanity of such a person being only 
partial, not general, a jury, under a charge like that given by the court below 
on this case, might find the prisoner sane, for in some respects he would be 
capable of distinguishing between right and wrong. Had the instruction 
been, that the prisoner was to be deemed sane, if he had a knowledge of right 
and wrong in respect to the crime with which he stood charged, there would 
have been but little fear that the jury could be misled, for a person who justly 
apprehends the nature of a charge made against him, can hardly be supposed 
to be incapable of defending himself in regard to it in. a rational way. At the 
same time it would be wTell to impress distinctly on the minds of jurors, that 
they are to gauge the mental capacity of the prisoner, in order to determine 
whether he is so far sane as to be competent in mind to make his defence, if 
he has one ; for, unless his faculties are equal to that task, he is not in a fit 
condition to be put on his trial. For the purpose of such a question, the law 
regards a person thus disabled by disease as non compos mentis, and he should 
be pronounced unhesitatingly insane within the true extent and meaning of 
this statute. 
“ Where insanity is interposed as a defence to an indictment for an alleged 
crime, the inquiry is always brought down to the single question of a capacity 
to distinguish between right and wrong at the time wrhen the act was done. 
In such case, the jury should be instructed, that ‘ it must be clearly shown 
that, at the time of committing the act, the party accused was 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 he was doing what was wrong. The mode of putting the latter part of 
the question to the jury, on these occasions, has generally been whether the 
accused, at the time of doing the act, knew the difference between right and 
125 §145] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
tenced to imprisonment for six years. On an application to the 
court to reconsider the sentence, insanity was set up, and it 
appeared that the prisoner either felt or feigned a belief that 
he was a legitimate son of the late Duke Charles of Mecklen- 
burg Strelitz; which certainly, if not a mere fiction, was an 
insane delusion. Much reason existed to believe that the 
wrong ; wliicli mode, though rarely, if ever, leading to any mistake with the 
jury, is not deemed so accurate, when put generally and in the abstract, as 
when put with reference to the party’s knowledge of right and wrong in re- 
spect to the very act with which he is charged.’ This is the rule laid down 
by all the English judges but one, in the late case of McNagliton, while pend- 
ing in the House of Lords. (10 C. & F. 210.) In the case of Oxford, Lord 
Denman, C. J., charged the jury in this manner : ‘The question is, whether 
the prisoner was laboring under that species of insanity which satisfies you 
that he was quite unaware of the nature or character and consequences of the 
act he was committing ; or, in other words, whether he was under the influ- 
ence of a diseased mind, and was really unconscious, at the time he was com- 
mitting the act, that it was a crime. ’ The insanity must be such as to deprive 
the party charged with crime, of the use of reason in regard to the act done. 
He may be deranged on other subjects, but, if capable of distinguishing 
between right and wTrong in the particular act done by him, he is justly liable 
to be punished as a criminal. Such is the undoubted rule of the common law 
on this subject. Partial insanity is not, by that law, necessarily an excuse 
for crime, and can only be so where it deprives the party of his reason in 
regard to the act charged to be criminal. Nor, in my judgment, was the 
statute on this subject intended to abrogate or qualify the common law rule. 
The words of the statute are : ‘ No act done by a person in a state of insanity 
can be punished as an offence.’ The clause is very comprehensive in its 
terms, and at first blush might seem to exempt from punishment every act 
done by a person who is insane upon any subject whatever. This would, 
indeed, be a mighty change in the law, as it would afford absolute impunity 
to every person in an insane state, although his disease might be confined to 
a single and isolated subject. If this is the meaning of the statute, jurors are 
no longer to inquire whether the party was insane ‘ in respect to the very act 
with which he is charged,’ but whether he was insane in regard to any act 
or subject whatever; and, if they find such to have been his condition, render 
a verdict of not guilty. But this statute is not so understood by me. I inter- 
pret it as I should have done if the wTords had been, ‘no act, done by a person 
in a state of insanity in respect to such act, can be punished as an offence.’ 
The act, in my judgment, must be an insane act, and not merely the act of 
an insane person. This was plainly the rule before the statute wras passed, 
and, although that took place more than sixteen years since, I am not aware 
that it has, at any time, been held or intimated by any judicial tribunal, that 
the statute had abrogated, or in any respect modified, this principle of the 
common law.” (Freeman v. People, 4 Denio, p. 27.) 
126 BOOK I.j 
IRRESISTIBLE IMPULSE. 
[§ 147 
whole thing was simulated; but, independently of this, the 
court was clear that, as the mania, if real, had no connection 
with his crime, it formed no ground for a revision of the sen- 
tence. Dr. Caspar’s report and opinion will hereafter be given 
at large.O’1) 
(c1) Where the defendant, being insane, is forced by a morbid 
AND IRRESISTIBLE IMPULSE TO DO THE PARTICULAR ACT. 
[vis to the alleged “monomaniac” impulses, see infra, §§ 567-679. 
vis to the question of motive, infra, §§ 401-404. cases oj 
alleged irresistible impulse, Appendix, §§ 833, 837, 839, 840, 
842, 843.] 
§ 146. Here, at the outset, we are arrested by a difficulty of 
nomenclature. What is “irresistible impulse” that is here 
declared to be a defence ? And, in order to clear the question 
at the outset from ambiguities, it is proper to remark— 
(a) “ Irresistible impulse” is not “ moral insanity,” defining 
“moral insanity” to consist of insanity of the moral system, 
coexisting with mental sanity. “Moral insanity,” as thus de- 
fined, has no support, as will hereafter he seen,(j) either in 
psychology or law. 
(b) Nor is “irresistible impulse” convertible with passionate 
propensity, no matter how strong, in persons not insane.^/1) 
In other words, the “irresistible impulse” of the lunatic, which 
confers irresponsibility, is essentially distinct from the passion, 
however violent, of the sane, which does not confer irresponsi- 
bility. As this distinction is of great importance, we will 
now notice the reasons on which it rests. 
§ 147. (1) Supposing the mind to be sound, and that there 
is a capacity of judging between right and wrong, there is 
psychologically no inclination the law can treat as irresistible. 
The will is either free, which settles the question at once; or 
it is directed by the strongest motives, as the necessitarian 
holds. Now, taking the latter hypothesis, the question arises, 
supposing the will to follow by necessity the strongest motive, 
O'1) Infra, Appendix, § 834. (j) Infra, §§ 163-189, 531-567. 
( jl) See infra, §§ 403-478. 
127 §148] 
INSANITY AS A CRIMINAL DEFENCE. 
[book r. 
whether it is just to punish the wrongdoer for such necessary 
act. That it is, is affirmed by the leading representatives of 
the necessitarian school, on reasoning which it seems im- 
possible to dispute. “ It is said,” says Mr. Bain,(A') “that it 
would not be right to punish a man unless he were a free 
agent; a truism, if by freedom is meant only the absence of 
outward compulsion; if in any other sense, a piece of absurdity. 
If it is expedient to place restrictions upon the conduct of sentient 
beings, and if the threatening of pain operates to arrest such conduct, 
the case for punishment is made out. We must justfy the insti- 
tution of Law, to begin with, and the tendency of pain to 
prevent the actions that bring it on, in the next place. * * * 
Granting these two postulates, Punishability (carrying with 
it, in a well constituted society, Responsibility), is amply vin- 
dicated. * * * Withdraw the power of punishing, and there 
is left no conceivable instrument of moral education. It is 
true that a good moral discipline is not wholly made up of 
punishment; the wise and benevolent parent does something, 
by the methods of allurement and kindness, to form the 
virtuous dispositions of his child. Still, we may ask, was ever 
any human being educated to the sense of right and wrong without 
the dread of pain accompanying forbidden actions ? It may be 
affirmed, with safety, that punishment or retribution, in some 
form, is one-half of the motive power to virtue in the very 
best of human beings, while it is more than three-fourths in 
the mass of mankind.” 
§ 148. Mr. J. S. Mill, in his examination of Sir W. Hamil- 
ton’s philosophy, supposes the case of a race of men whose 
hereditary tendencies to mischief are as great and uncon- 
trollable as those of lions and tigers; than which no case 
brought up by the advocates of the unpunishability of those 
subject to irresistible propensities, could be more strong. 
Having supposed such men, he asks whether we would not 
treat them precisely as we would a wild beast, even though 
we supposed them to act necessarily. The highest theory of 
fatalism, he infers from this, is not inconsistent with the 
infliction of penalties on the offender. The question that 
128 
(k) Mental and Moral Science, London, 1868, p. 404. BOOK I.] 
IRRESISTIBLE IMPULSE. 
[§ 149 
arises, then, is, is such punishment just? Can we justly 
punish a man for that which he cannot help ? And he argues 
that we certainly can, if announcing beforehand that such 
offenders are to be punished, and supporting the announcement 
by inflexible and uniform execution, is the way to keep them 
from committing the obnoxious act. If the end—the pre- 
vention of crime—is justifiable, then the necessary means for 
the prevention of crime are also justifiable. 
§ 149. In cases of low mental and moral culture, such as 
those just supposed, the will, when on the brink of some for- 
bidden act, is swayed by two conflicting motives, passion and 
fear. Fear, in such cases, is the only check on passion. If it 
is removed, passion has no remaining barrier in its way. We 
may notice this in the case of young children, who are often 
deterred from wrong acts in proportion as the fear of punish- 
ment is impressed on their minds. ISTor does this characteristic 
belong only to children or to persons of low grade of intelli- 
gence. It was frequently said of Napoleon I., and of General 
Jackson, that each knew when he could with impunity give 
way to bursts of apparently irresistible rage; but that each knew 
when this rage was to be controlled. The cases are not infre- 
quent in which men, presuming on the cowardice or feebleness 
of their intended victim, rush into violence which they would 
readily have restrained had they known that they would have 
received blow for blow. Wer sich zum Schaf macht, is a German 
proverb, den frisst der Wolf; or, as we may paraphrase it, 
government, by becoming a sheep, creates the social wolf. 
The state which declares that no irrepressible passion shall be 
punished evokes the irrepressible passion it exempts. The 
necessary check on passion is fear; and punishment must be 
applied by government with such even hand that fear will be 
real and reasonable. Of course, as Mr. Mill well remarks, 
this does not apply to cases where the offender has not reason 
to understand that the guilty act is punished by the state, 
nor does it apply when he is laboring under an insane delusion 
which sets up what he holds to be a higher law.(Z) 
(l) “Irresistible impulses” are recognized by all philosophers, profane and 
;acred. Ovid, in a well-known passage, thus speaks :— 
vol. i.—9 
129 § 150] 
[book i. 
INSANITY AS A CRIMINAL DEFENCE. 
§ 150. (2) There is no means of determining what consti- 
tutes “irresistibility.” In a case mentioned by Sir Henry 
Holland, of a patient who deplored to him an irresistible im- 
pulse to kill Mr. Canning, the catastrophe was avoided, so Sir 
H. Holland seems to think, by advising Mr. Canning to keep 
out of the way. If, however, the patient, instead of availing 
himself of his physician’s aid in this way, had sought it in 
another, and said, “I have this morbid desire; I cannot resist 
it; have me shut up;” this would have been at least equally 
effective in causing the impulse to miscarry. If a man has 
reason enough to deplore a criminal desire, and power enough 
to take steps to prevent its gratification, the law holds him 
responsible if he does not take such steps. This is recognized 
in those familiar cases in which it is held, that, where a man 
Sed trahit invitam nova vis, aliudque cupido, 
Mens aliud suadet: video meliorn proboque, 
Deteriora sequor. 
And so St. Paul: “The good that I would I do not; but the evil which I 
would not, that I do. * * I see another law in my members, warring against the 
law of my mind, and bringing me into captivity to the law of sin which is 
in my members.” No doubt the impulse, viewed thus as an insulated force, 
is irresistible in producing the sin. But, on the other hand, reason, in its 
right sense, is irresistible in suppressing the impulse. This reason may ope- 
rate either through love or fear ; and hence these motives it is incumbent on 
all systems of ethics to cherish. No doubt it is a law of our nature that the 
will follows the strongest motive. But the irresistibility of the inferior motive, 
when unrestrained, is the crowning reason for promulgating and enforcing 
superior motives, as modes of restraining. 
Griesenger doubts whether impulses are irresistible even among the insane. 
“Whether, and to what extent, certain directions of the will and impulses 
in the insane, particularly such as lead to criminal acts, are irresistible, is a 
question which can scarcely ever be answered with certainty. Few of the 
acts of the insane have the character of forced, purely automatic movements ; 
in mania also, according to the testimony of individuals who have recovered, 
many of the wild desires could often be restrained : the criminal deeds of the 
insane are not generally instinctive. The loss of freewill (or, if we choose, 
irresponsibility), therefore, seldom depends on the fact of inability to have 
Abstained from the act committed, or that the normal conditions of volition 
have been completely suspended. The causes of this loss of freewill chiefly 
depend on quite a different cause, they depend on violent excitation of the 
emotions, or on incoherence, oh false reasoning proceeding from delirious 
conceptions, hallucinations, etc., and on the circumstances mentioned in 
§ 27.”—Griesenger's Mental Pathology, Sydenham Ed. (1867), § 47. 
130 BOOK I.] 
IRRESISTIBLE IMPULSE. 
[§ 150 
whose passions are aroused kills an assailant, the act is not 
excusable unless it appears that the accused had no means of 
retreat. If the “ monomaniac” can retreat from his “mono- 
mania,” it ceases to supply him with a defence.(m) 
(m) The following observations are made by a correspondent of the London 
Spectator of Feb. 31, 1872 : ‘‘It is said that there are certain manias which 
irresistibly impel to crime, and that though the threat of the law is under- 
stood, there is no wilful disobedience of it. Now, what are these manias ? 
The two most frequently heard of in connection with crime are the homicidal 
mania and the stealing or kleptomania. A man troubled with these has a 
strong desire to kill and to steal. These manias, as they are called, do not 
consist in disease, unsoundness or a non-sane state of the mind, but of the 
passions or appetites. The homicidal maniac has a morbid craving for taking 
life. The not doing so is painful to him, the doing so pleasurable. We may 
wonder that it should be so, but so it is. It is not a natural appetite, or 
source of pain or pleasure, but it is so in this man. So of the kleptomaniac. 
He likes to take from others the property that belongs to them, and have it in 
his own possession. Why, one cannot tell, but so it is. There are other 
cases of mania, supposing that to be the right word. There was a man who, 
about ten or twelve years ago, was tried and sentenced at Monmouth under 
the following circumstances: He was a collier in the employ of the Ebbw 
Yale Company. Their manager gave him the very best character. He was 
their best workman, sober, honest, and a deacon at his chapel. But he had 
this mania. He used to lie in wait on a mountain where a footpath crossed 
from one valley to another, and then outrage women with circumstances of 
atrocious cruelty. There were nineteen indictments against him, and many 
other cases where the sufferers would not come forward. He was convicted 
on four, and sentenced to penal servitude for life. Why was not this a case 
of mania ? We read in the papers a few dajrs ago of a boy in London, of 
about fifteen years of age, whose delight was to fracture the skulls of small 
children. He had done it on several occasions. That was his mania. Now 
the mad-doctors call these cases cases of moral insanity. But would it not be 
more correct to call them cases of insane morality, i. e., are they not cases 
where the desire to do mischief is not counteracted by a morality sound 
enough to prevent their commission of the offences they lead to? Why 
should the persons who commit offences under the influence of their vicious 
desires or appetites—or manias, if that is the right word—not be punished, 
i. e., not be threatened with punishment ? It is said by the mad-doctors and 
their followers that they, the persons breaking the law under such influ- 
ences, do not break it wilfully—that they can’t help it. ‘ See,’ it is said, 
‘ what is the use of your threat of punishment on this man ? he has disre- 
garded it under an irresistible impulse.’ He has disregarded it, no doubt, and 
the impulse or temptation was too great for the countervailing considerations. 
But the same argument might be used in the case of all offenders, however 
sane; the temptation has been too great for them. But the justification of 
punishment, the reason for the threat of punishment, is not to be found in its 
131 § 150a] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
§ 150a. (3) On the materialistic hypothesis, from whose 
advocates the theory of the non-responsibility for irresistible 
impulses springs, all volitions are the result of material influ- 
ences ; and hence there is no volition that may not be viewed 
as irresistible, and no crime that is not a physical disease. The 
effect on those whom it does not deter, but on those whom it does. Watson 
was not deterred from killing his wife in a most barbarous way by the law’s 
threat that he would be hanged if he did ; but are .there not many who are ? 
Is there no husband who would like to knock his wife’s brains out, but is 
deterred by knowing what the law says shall happen if he is convicted of 
doing so ? Another way the argument is put is this : ‘ Poor fellow ! his case 
is a hard one ; he did not have an equal chance with his fellow-creatures. 
He knew he was doing wrong, but then his intelligence was small, his power 
of self-control was small, his propensities maniacally vicious, so he is not re- 
sponsible.’ Well, if the question were whether such a person is as hateful as 
a person of strong mind and no morbid appetite who deliberately did wrong 
for his own profit or gain, the answer would readily be—no. But that is not 
the question. The question is, Should the law not direct its threat against 
one who stands so much in need of it, who, unless fortified by it, is so likely 
to do wrong ? What would be thought of the law if it should say in so many 
words, ‘ You have a strong propensity to kill, therefore if you do you shall 
not be punished ; you have a strong propensity to steal, therefore if you do 
you shall not be punished ; and further, if you, the homicidal maniac, steal, 
you shall not be punished, because your mind must be feeble ; and so of you, 
the kleptomaniac, you may commit murder with impunity; in short, both of 
you, having evil propensities, may commit any offence without punishment ?’ 
What would be said of a father who should say to his sons, ‘ You, John, are 
a good boy, but if you rob an orchard in my absence, I will flog you ; you, 
Thomas, are a badly disposed boy, who, when my back is turned, will cer- 
tainly steal my neighbors’ apples if you can ; therefore I will not punish you.’ 
And where is this argument to stop ? I have a homicidal mania, therefore 
do not punish me for homicide or other offences. I have a kleptomania, 
therefore do not punish me. I, says the Monmouth offender, have a peculiar 
physical or mental development, therefore do not punish me. I, says a fourth, 
am really not a bad man, but have lived all my life among thieves, and am as 
much inclined to steal as a kleptomaniac. I, says a fifth, am really a good 
and well-conducted person, but I was in great want, there was no witness 
near, the owner was rich, so the temptation to steal the watch was irresist- 
ible. Irresistible ! All we know is that the deterring considerations were 
not enough. But had a policeman been present when Watson slew his wife, 
would his temptation have been irresistible? Would Edmunds have given 
the poisoned sweets to be taken to the confectioner if a policeman had been 
within hearing ? The argument comes to this : Wherever a person is likely 
from feeble intelligence or morbid appetite to commit a crime, wherever the 
threat of the law is most needed, there the person is to be pitied, and the 
threat withheld. Why not in every case where the offender is to be pitied ?” 
132 [§ 152 
BOOK I.] 
IRRESISTIBLE IMPULSE. 
same reasoning that applies to prevent punishment for one 
phase of this “disease,” would therefore apply to prevent pun- 
ishment for any crime whatsoever. 
§ 151. It should be remembered, however, that while “irre- 
sistible impulse,” the mind being sane, is no defence to crime, 
yet violent passion is to be taken into account as a mitigating 
element, and that the peculiar temperament of the offender is 
to be gauged for the purpose of estimating whether the provo- 
cation was such as to create hot blood, and whether there was 
adequate cooling time. A sane person may, from epilepsy, or 
from prior insanity, or from nervous or physical derangements, 
or from hereditary taint, be peculiarly susceptible to excite- 
ment ; and, as the law treats assaults committed in hot blood 
as of a lower grade than those committed deliberately, this 
excitability may properly be considered in determining 
whether the blood at the time was hot. That psychologically 
this varies with temperament, is well known. The ordinary 
signs of passion (acceleration of arterial pulse, congestive 
flushings, increased activity of secretions and excretions) are 
different with different patients. Hence epileptic, nervous 
and cerebral diseases, and hereditary tendency, may be put in 
evidence to lower the grade of the offence, though they do not 
amount to insanity. In so doing, we but follow the authori- 
ties which declare that drunkenness, though no defence to 
crime, may be used to show that an assault was not delib- 
erate. (n) 
§ 152. It being therefore settled that “ irresistible impulse,” 
to constitute a defence, must be that of a person otherwise 
insane, we proceed to consider the authorities that establish 
such impulse as a defence. In doing so, it must be at the 
outset conceded that by the English courts, this defence, as 
here stated, is rejected. Ho person, however insane, can, by 
the law as now (1872) expounded by those courts, be acquitted 
of a crime, if it appear to the satisfaction of the jury that he 
knew the nature and quality of the act he was doing, or, if 
(n) Infra, § 200; Wh. Cr. Law, § 41; see, as to alleged “monomaniac” 
impulses, infra, §§ 567-679. 
133 § 153] 
INSANITY AS A CRIMINAL DEFENCE. 
[book t. 
lie did not know it, if lie knew that the act was wrong.(ft*) 
But, if, as hereafter will be shown, it is demonstrable that there 
sometimes is, among insane persons, an “ irresistible impulse” 
to an act coexisting with a knowledge that it was wrong, 
then comes the question whether lunatics of this stamp are 
legally punishable for such acts. That they are not, the ten- 
dency of American authority is to maintain. And even in 
England we find Mr. Stephen, in his work on English Crimi- 
nal Law,(?i2)—a work as remarkable for philosophical sym- 
metry as for legal accuracy—stating (1863) the questions to 
be, “in popular language, Was it his act? Could he help it? 
Did he know it was wrong?” He goes on further to say: “It 
would be absurd to deny the possibility that such (irresistible) 
impulses may occur, or the fact that they have occurred, 
and have been acted on. Instances are also given in which the 
impulse was felt and was resisted. The only question which 
the existence of such impulses can raise in the administration 
of criminal justice is, whether the particular impulse in 
question was irresistible as well as unresisted. If it were irre- 
sistible, the person accused is entitled to be acquitted, because the act 
was not voluntary and was not properly his act. If the impulse 
was resistible, the fact that it proceeded from disease is no 
excuse at all.”(ft3) 
§ 153. To the illustrations adduced by others of the co- 
existence of a knowledge that an act was wrong1 with its 
commission under circumstances which confer entire irre- 
(n1) A mere uncontrollable impulse of the mind, coexisting with the full 
possession of the reasoning powers, will not warrant an acquittal on the 
ground of insanity; the question for the jury being, whether the prisoner, at 
the time he committed the act, knew the character and nature of the act, 
and that it was a wrongful one. R. v. Barton, 3 Cox, C. C. 275—Parke. 
Where a person is in a state of mind in which she is liable to fits of madness, 
it is for the jury to consider whether the act done was during such a fit, though 
there is nothing before or after the act to indicate it, and though there is some 
evidence of design and malice. R. v. Richards, 1 F. & F. 87. 
The circumstances of a person having acted under an irresistible influence 
to the commission of homicide, is no defence, if at the time he committed the 
act he knew he was doing what was wrong. R. v. Haynes, 1 F. & F. 666— 
Bramwell. See also Edmunds’ case, infra, §§ 165-167. 
(»2) London, 1863, p. 91. (?i3) See 1 Bennett’s Leading Cases, 100. 
134 [§ 153 
BOOK I.] 
IRRESISTIBLE IMPULSE. 
sponsibility, the present writer may be permitted to add one 
within the range of his own experience. A man named John 
Billman, who had been sent to the Eastern Penitentiary of 
Pennsylvania for horse stealing, murdered his keeper under 
circumstances of great brutality, and yet with so much 
ingenuity as to elude suspicions of his intentions and almost 
conceal his flight. He hung a noose on the outside of the 
small window which is placed in the door of the cells to enable 
persons outside to look in. lie then induced the keeper, in 
order to look at something on the floor directly at the foot of 
the door, to put his head entirely through. The noose was 
then drawn, and but for an accident the man would have been 
suffocated. Notwithstanding this attempt, the same keeper 
was inveigled into the cell alone, a few days afterwards, on 
the pretence of Billman being sick, and was there killed by 
a blow on the head with a piece of washboard. Billman 
undressed him, changed clothes with him, placed him on the 
bed in such a position as to induce the general appearance of 
his being there himself, traversed in his assumed garb the 
corridor with an unconcerned air, addressed an apparently 
careless question to the gate-keeper, and sauntered listlessly 
down the street on which the gate opened. He was, however, 
soon caught; but his insanity was so indisputable, that the 
prosecuting authorities, after having instituted a careful and 
skilful medical examination, became convinced of his irre- 
sponsibility, and united upon the trial in asking a verdict of 
acquittal on the ground of insanity. He was then remanded 
to confinement, under the Pennsylvania practice; and some 
time afterwards, when in a communicative mood, disclosed the 
fact of his having several years back murdered his father 
under circumstances which he detailed with great minuteness 
and zest. Inquiries were instituted, and it was found that he 
had told the truth. The father had been found strangled in 
his bed; the son had been arrested for the crime; but so art- 
fully had he contrived the homicide, that he was acquitted 
through an alibi, got up by means of a rapid ride at midnight 
and a feigned sleep in a chamber into which he had clambered 
by a window. Here, then, was not only a sense of guilt, but 
135 §156] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
a keen appreciation of tlie consequences of exposure, long 
harbored intention and intelligent design. 
§ 154. A well-known illustration of the same sense of ac- 
countability among lunatics, as a class, is to he found in an 
anecdote related by Dr. Winslow. When Martin set York 
Minster on tire, a conversation took place among the inmates 
of a neighboring lunatic asylum, having reference to this gene- 
ral topic. The question was whether Martin would he hanged, 
when, in the course of the discourse, one madman announced 
to the others the opinion, in which they all acquiesced, that 
Martin would not be hanged, because he was “ one of them- 
selves.” It certainly will not be maintained that a conscious- 
ness of the legal relations of crime, such as this remark 
exhibited, confers responsibility where it does not otherwise 
exist. 
§ 155. With these may be cited a leading case before Judge 
Story, in which that eminent jurist directed the acquittal of a 
young woman, who during puerperal insanity drowned her 
child, though there was no proof that she was not entirely 
conscious of the nature of the act.(o) 
In the same class fall those cases in which a parent, insane 
with melancholy, kills his children, either in execution of 
some supposed divine command, or to save them from supposed 
future misery, knowing at the same time the human illegality 
of the act^o1) 
§ 156. The first case in'which this question was gravely con- 
considered is that of Commonwealth v. Rodgers, before the 
Supreme Court of Massachusetts, in the spring of 1844.(2?) 
Chief Justice Shaw—whose conservative tendencies on the 
great sanctions of human life cannot be suspected—found 
himself, in preparing his charge, embarrassed by the conflict 
between the dogmas of the older judges and the necessities of 
the particular case; and there is an evident struggle on his 
part to preserve as much as he could of the letter of the former 
and at the same time to establish a principle by which the 
(o) TJ. S. v. Hewson, 7 Bost. Law Rep. 361. 
(o') Supra, §§ 132, 137; infra, §§ 529, 582, 036, 837, 839. 
(p) Pampli. Rep. 1844, S. C., 7 Mete. 500. 
136 BOOK I.] 
IRRESISTIBLE IMPULSE. 
[§ 156 
latter could be properly respected. He begins—we cite from 
the authorized report—by laying down two propositions of 
great breadth. “ In order to constitute a crime,” he says, “ a per- 
son must have intelligence and capacity enough to have a crimi- 
nal intent and purpose; and, if his reason and mental powers are 
either so deficient that he has no will, no conscience, or control- 
ling mental power, or if, through the overwhelming violence 
of mental disease, his intellectual power is for the time oblite- 
rated, he is not a responsible moral agent, and is not punishable 
for criminal acts. These extremes,” he then proceeds to state, 
“are easily distinguished, and not to be mistaken. The diffi- 
culty lies between these extremes, in the cases of partial insanity, 
where the mind may be clouded and weakened, but not inca- 
pable of remembering, reasoning, and j udging; or so perverted 
by insane delusion, as to act under false impressions and in- 
fluences.” To such cases—to those where the mind is not 
“incapable of judging,” etc., and to those where it acts “ under 
false impressions and influences”—and to such alone, he applies 
the “ right and wrong” test; reserving it to a very small sphere 
of action, since the defence of insanity would scarcely be 
ventured where there was both a capacity to j udge, reason, and 
remember, and a freedom from false “ impressions and in- 
fluences.” Taking up the particular defence of monomania, 
which was that advanced in the case before him, he proceeds 
to state the law, with a liberality in entire accordance with the 
weight of medical authority. “This” (monomania) “may 
operate as an excuse for a criminal act in one of two modes. 
1. Either the delusion is such that the person under its influence 
has a real and firm belief of some fact, not true in itself, but 
which, if it were true, would excuse his act: as where the 
belief is that the party killed had an immediate design upon 
his life, and under that belief the insane man kills in supposed 
self-defence. A common instance is where he fully believes 
that the act he is doing is done by the immediate command of 
God, and he acts under the delusive but sincere belief that 
what he is doing is by the command of a superior power which 
supersedes all human laws and the laws of nature. 2. Or this 
state of delusion indicates to an experienced person that the 
mind is in a diseased state; that the known tendency of that 
137 §157] 
[book i. 
INSANITY AS A CRIMINAL DEFENCE. 
diseased state of the mind is to break out into sudden parox- 
ysms of violence, venting itself in homicide, or other violent 
acts toward friend and foe indiscriminately; so that, although 
there were no previous indications of violence, yet the subse- 
quent act, connecting itself with the previous symptoms and 
indications, will enable an experienced person to say, that the 
outbreak was of such a character that, for the time being, it 
must have overborne memory and reason ; that the act was the 
result of the disease and not of a mind capable of choosing; 
in short, that it was the result of uncontrollable impulse, and 
not of a person acted on by motives, and governed by will.” 
* * * u Are the facts of such a character, taken in connection 
with the opinion of professional witnesses, as to induce the 
jury to believe that the accused was laboring for days under 
monomania, attended with delusion, and did thus indicate 
such a diseased state of the mind, that the act of killing the 
warden was to be considered as an outbreak or paroxysm of 
disease, which for the time being overwhelmed and superseded 
reason and judgment, so that the diseased was not an account- 
able agent ? If such was the case, the accused is entitled to 
an acquittal.” 
§ 157. In the fall of 1846, a similar defence was started 
before three of the judges of the Supreme Court of Pennsyl- 
vania, then holding an Oyer and Terminer in Philadelphia. 
In his charge to the jury, Chief Justice Gibson—a most able 
judge, thoroughly disciplined in and wedded to the common 
law, but at the same time endowed with a remarkable zest for 
and a mastery over collateral sciences—after, in the first, place, 
vehemently repudiating the doctrine that partial insanity 
excuses anything but its direct results, and sliding, in refer- 
ence to such cases, into the “ right and wrong” tests, proceeds: 
“ But there is a moral or homicidal insanity, consisting of an 
irresistible inclination to kill or to commit some particular 
There may be an unseen ligament pressing on the 
mind, drawing it to consequences which it sees but cannot avoid, 
(?) The charge was oral, having been reported by the present writer, and 
but hastily revised by the judge himself, which may account for the want of 
literal exactness in this and other expressions. 
138 BOOK I.] 
[§ 158 
IRRESISTIBLE IMPULSE. 
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. It ought to 
he shown to have been habitual, or at least to have evinced 
itself in more than a single instance. It is seldom directed 
against a particular individual; but that it may be so, is 
proved by the case of the young woman who was deluded by 
an irresistible impulse to destroy her child, though aware of the 
heinous nature of the act. The frequency of this constitutional 
malady is fortunately small, and it is better to confine it 
within the strictest limits. If juries were to allow it as a 
general motive, operating in cases of this character, its recog- 
nition would destroy social order as well as personal safety. 
To establish it as a justification in any particular case, it is 
necessary either to show, by clear proofs, its contemporaneous 
existence evinced by present circumstances, or the existence of 
an habitual tendency developed in previous cases, becoming in 
itself a second nature. ”(r) 
§ 158. In a still earlier case in Pennsylvania, Judge Lewis, 
then presiding in Lycoming County, and afterwards Chief 
Justice of Pennsylvania, thus spoke: “ Moral insanity” (not 
however, the moral insanity of Pinel, but that which consists 
of “ irresistible impulse”) u arises from the existence of some of 
the natural propensities in such violence, that it is impossible 
not to yield to them. It bears a striking resemblance to vice, 
which is said to consist in an undue excitement of the pas- 
sions and will, and in their irregular or crooked actions lead- 
ing to crime. It is therefore to be received with the utmost 
scrutiny. It is not generally admitted in legal tribunals as a 
species of insanity which relieves from responsibility for crime, 
and it ought never to be admitted as a defence, until it is shown 
that these propensities exist in such violence as to subjugate the 
intellect, control the will, and render it impossible for the 
party to do otherwise than yield. Where its existence is fully 
established, this species of insanity relieves from accountability 
to human laws. Put this state of mind is not to be presumed 
(r) Com. v. Mosler, 4 Barr, 266; see infra, § 174. 
139 §158] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
without evidence, nor does it usually occur without some pre- 
monitory symptoms indicating its approach.”(s) 
(s) Tlie same view was, some years after, repeated by the same enlightened 
and able judge ; Lewis Cr. Law, 404; by Judge Edmonds (2 Am. Jour, of 
Ins.) and Judge Whiting (Freeman’s Trial—Pamph.). In 1858, in John 
Freetli’s case, tried before the Philadelphia Oyer and Terminer, Judge Lud- 
low charged the jury partly as follows :— 
“ Besides the kinds of insanity to which I have already referred, and which 
strictly speaking affect the mind only, we have moral or homicidal insanity, 
which seems to be an irresistible inclination to kill, or to commit some other 
'particular offence. We are obliged by the force of authority to say to you, 
that there is such a disease known to the law as homicidal insanity; what 
it is, or in what it consists, no lawyer or judge has ever yet been able to 
explain with precision; physicians, especially those having charge of the 
insane, gradually, it would seem, come to the conclusion, that all wicked men 
are mad, and many of the judges have so far fallen into the same error as to 
render it possible for any man to escape the penalty which the law affixes to 
crime. 
“ We do not intend to be understood as expressing the opinion that in some 
instances human beings are not afflicted with a homicidal mania, but we do 
intend to say that a defence consisting exclusively of this species of insanity 
has frequently been made the means by which a notorious offender has 
escaped punishment. Wliat, then, is that form of disease, denominated hom- 
icidal mania, which will excuse one for having committed a murder ? 
“ Chief Justice Gibson calls it, ‘ that unseen ligament pressing on the mind, 
and drawing it to consequences which it sees but cannot avoid, and placing 
it under a coercion which, while its results are clearly perceived, is incapable 
of resistance’—4 an irresistible inclination to kill.’ 
“ If by moral insanity it is to be understood only a disordered or perverted 
state of the affections or moral powers of the mind, it cannot be too soon dis- 
carded as affording any shield from punishment for crime ; if it can be truly 
said that one who indulges in violent emotions, such as remorse, anger, 
shame, grief, and the like, is afflicted with homicidal insanity, it will be dif- 
ficult, yes, impossible, to say where sanity ends and insanity begins ; for, by 
way of illustration, the man who is lashed into fury by a fit of anger is in 
one sense insane. 
“Asa general rule it will be found that instances are rare of cases of homi- 
cidal insanity occurring wherein the mania is not of a general nature, and 
results in a desire to kill any and every person who may chance to fall within 
the range of the maniac’s malevolence ; as it is general, so also is it based 
upon imaginary and not real wrongs ; if it is directed against a particular 
person (as is sometimes the case), then also the cause of the act will gener- 
ally be imaginary ; when, therefore, the jury find from the evidence that the 
act has not been the result of an imaginary but real wrong, they will take 
care to examine with great caution into the circumstances of the case, so that 
with the real wrong, they may not also discover revenge, anger, and kindred 
140 BOOK I.] 
IRRESISTIBLE IMPULSE. 
[§ 159 
§ 159. In Illinois, in 1863, it was declared by the Supreme 
Court that a safe and reasonable test would be, that, whenever 
emotions of the mind to be the real motive which has occasioned the homici- 
dal act. 
“ Orfila has said, ‘that the mind is always greatly troubled when it is agi- 
tated by anger, tormented by an unfortunate love, bewildered by jealousy, 
overcome by despair, haunted by terror, or corrupted by an unconquerable 
desire for vengeance. Then, as is commonly said, a man is no longer master 
of himself, his reason is affected, his ideas are in disorder, he is like a mad- 
man. But in all these cases a man does not lose his knowledge of the real 
relations of things ; he may exaggerate his misfortune, but this misfortune is 
real, and if it carry him to commit a criminal act, this act is perfectly well- 
motived. ’ 
“ The man who has a clear conception of the various relations of life, and 
the real relation of things, is not often afflicted with insanity of any descrip- 
tion. He may become angry, and in a fit of temper kill his enemy, or even 
his friend, but this is not, and I hope never will be, called in courts of justice 
insanity. Again, one who is really driven on by an uncontrollable impulse 
to the commission of a crime, will be able to show its ‘ contemporaneous 
existence evinced by present circumstances, or the existence of an habitual 
tendency developed in particular cases, and becoming in itself a second 
nature,’ and ought further to show that the mania ‘was habitual, or that it 
had evinced itself in more than one instance.’ 
“ Chief Justice Lewis has said that moral insanity ‘bears a striking resem- 
blance to vice and further, ‘ it ought never to be admitted as a defence until 
it is shown that these propensities exist in such violence as to subjugate the 
intellect, control the will, and render it impossible for the party to do other- 
wise than yield.’ And again, ‘ this state of mind is not to be presumed with- 
out evidence, nor does it usually occur without some premonitory symptoms 
indicating its approach.’ 
“Gentlemen of the jury, we say to you, as the result of our reflections on 
this branch of the subject, that if the prisoner was actuated by an irresistible 
inclination to kill, and was utterly unable to control his will, or subjugate 
his intellect, and was not actuated by anger, jealousy, revenge, and kindred 
evil passions, he is entitled to an acquittal, provided the jury believe that the 
state of mind now referred to has been proven to have existed, without doubt, 
and to their satisfaction.”—Am. Journ. of Insan., vol. xv. p. 303. 
In Huntington’s case, the defendant was tried in New York, in 1858, for 
forgery. Judge Capron said:— 
“The law, as at present administered, regards insanity, whether general 
or partial, as a derangement of the mind, the intellect, the reasoning and ap- 
preciating principle, the spring of motives and passions. To constitute a 
complete defence, insanity, if partial, must be such in degree as wholly to 
deprive the accused of the guide of reason in regard to the act with which he 
is charged, and of the knowledge that he is doing wrong in committing it. 
If, though somewhat deranged, he is yet able to distinguish right from wrong 
141 142 
[book i. 
INSANITY AS A CRIMINAL DEFENCE. 
it should appear from the evidence that, at the time of doing 
the act charged, the prisoner was not of sound mind, but 
in tlie particular case in which crime is imputed to him, and to know that he 
is doing wrong, the act is criminal in law, and he is liable to punishment. 
But it is insisted for the prisoner that insanity, either general or partial, may 
exist, and the subject be totally unable to control his actions, while his intel- 
lect, or knowing and reasoning powers, suffer no notable lesion ; it is claimed 
that persons thus afflicted may be capable of reasoning or supporting an argu- 
ment on any subject within their sphere of knowledge. * * * * This 
affliction lias received the name of Moral Insanity, because the natural feel- 
ings, affections, inclinations, temper, or moral dispositions only are perverted, 
while the mind, the seat of volition and motive, remains unimpaired. I 
will not positively assert that this theory is not sound: it may be reconcil- 
able with moral responsibility for human conduct; but I am not reluctant to 
confess my own mental inability to appreciate the harmony between the two 
propositions, if it exist.” 
Under this charge the prisoner was found guilty, and sentenced to the 
State prison. 
So in Spear’s case (Am. Journ. for Insan., p. 218) Judge Allen told the 
jury that there must be evidence, in order to acquit, of “ a lesion of the intel- 
lect and reasoning powers, or of some derangement or disease affecting the 
mind and judgment.” 
Daniel E. Sickles was tried in the U. S. Circuit Court for the District of 
Columbia, in 1859, for the murder of Philip B. Key. The defence was 
mania, produced by the defendant discovering an adulterous connection 
between his wife and the deceased. The following statement of the legal 
points adjudicated is taken from Elwell’s Malpractice, p. 391 :— 
“Mr. Brady claimed that the immediate circumstances attending the 
seduction of Mr. Sickles’s wife, and the death of Key, were of so atrocious a 
nature as to overwhelm the mind of Sickles instantaneously, and thus render 
him irresponsible for the crime of murder. He therefore drew up the follow- 
ing propositions, and requested the court to embody them it its charge to the 
jury 
“‘1. If, from the whole evidence, the jury believe that Mr. Sickles com- 
mitted the act, but at the time of doing so was under the influence of a dis- 
eased mind, and was really unconscious that he was committing a crime, he 
is not in law guilty of murder. 
“‘2. If the jury believe that from any predisposing cause the prisoner’s 
mind was impaired, and at the time of killing Mr. Key he became or was 
mentally incapable of governing himself in reference to Mr. Key, as the 
debaucher of his wife, and at the time of committing said act was, by reason 
of such cause, unconscious that he was committing a crime as to said Mr. 
Key, he is not guilty of any otfence whatever. 
“ ‘3. It is for the jury to say what was the state of the prisoner’s mind as 
to the capacity to decide upon the criminality of the particular act in question 
—the homicide—at the moment it occurred, and what was the condition of 
142 BOOK I.] 
[§ 159 
IRRESISTIBLE IMPULSE. 
affected with insanity, and such affection was the efficient 
cause of the act, and that he would not have done the act but 
the parties respectively as to being armed or not at the same moment. These 
are open questions for the jury, as are any other questions which may arise 
upon the consideration of the evidence, the whole of which is to be taken into 
view by the jury. 
“ ‘ 4. The law does not require that the insanity which absolves from crime 
should exist for any definite period, but only that it exists at the moment 
when the act occurred with wdiich the accused stands charged. 
“ ‘5. If the jury have any doubt as to the case, either in reference to the 
homicide or the question of sanity, Mr. Sickles should be acquitted.’ 
“These propositions were argued at great length by counsel, especially by 
Mr. Brady, who contended that the great sorrow that had fallen upon Mr. 
Sickles had, in fact, dethroned his intellect, and, for the moment, he was not 
accountable for what he did. Crawford, J., charged as follows on these 
propositions:— 
“4 The court is asked to give to the jury certain instructions, whether on the 
part of the United States or on the defence. The first instruction asked for 
by the United States embodies the law of this case on the particular branch 
of it to which it relates, and is granted with some explanatory remarks as to 
insanity, with a reference to which the prayer closes. A great English judge 
has said, on the trial of Oxford, who shot at the Queen of England, “That 
if the prisoner was laboring under some controlling disease which was, in 
truth, the acting power within him which he could not resist, then he will 
not be responsible.” And again: “The question is, whether he was laboring 
under that species of insanity which satisfies you that he was quite unaware 
of the nature, character, and consequences of the act he was committing, or, 
in other words, whether he was under the influence of a diseased mind, and 
was really unconscious at the time he was committing the act that that was 
a crime. A man is not to be excused from responsibility if he has capacity 
and reason sufficient to enable him to distinguish between right and wrong 
as to the particular act he is doing ; a knowledge and consciousness that the 
act he is doing is wrong and criminal, and will subject him to punishment. 
In order to be responsible, he must have sufficient power of memory to 
recollect the relation in w’hicli he stands to others, and in which others stand 
to him ; that the act he is doing is contrary to the plain dictates of justice and 
right, injurious to others, and a violation of the dictates of duty. On the 
contrary, although he may be laboring under a partial insanity, if he still 
understands the nature and character of his act and its consequences, if he 
has a knowledge that it is wrong and criminal, and a mental power sufficient 
to apply that knowledge to his owTn case, and to know that if he does the act, 
he will do wrong and receive punishment, such partial insanity is not sufficient 
to exempt him from responsibility for criminal acts.” Now we come to those 
asked on the part of the defence, the first of which is in these words :— 
“ ‘In reply to the ninth instruction, the court responds thus : “It is for the 
jury to say what w7as the state of Mr. Sickles’s mind as to the capacity to 
143 § 159] 
[book i. 
INSANITY AS A CRIMINAL DEFENCE. 
for that affection, he should he acquitted. But this unsound- 
ness of mind, or affection of insanity, must be of such a degree 
decide upon the criminality of the homicide, receiving the law as given to 
them in relation to the degree of insanity, whether it will or will not excuse, 
they (the jury) finding the fact of the existence or non-existence of such 
degree of insanity.” 
‘“The tenth prayer reads thus: “The law does not require that the 
insanity which absolves from crime should exist for any definite period, but 
only that it exist at the moment when the act occurred with which the 
accused stands charged. ” That instruction is granted. The time when the 
insanity is to operate is the moment when the crime charged upon the party 
was committed, if committed at all. The eleventh and last instruction asked 
reads this way : “ If the jury have any doubt as to the case, either in reference 
to the homicide or question of insanity, Mr. Sickles should be acquitted.” 
“‘This instruction, as I mentioned in referring to prayer four of the 
United States, will be answered in conjunction with it. 
“ ‘ It does not appear to be questioned that if a doubt is entertained by the 
jury, the prisoner is to have the benefit of it. As to the sanity or insanity of 
the prisoner at the moment of committing the act charged, it is argued by 
the United States, that, every man being presumed to be sane, the presumption 
must be overcome by evidence satisfactory to the jury that he was insane 
when the deed was done. 
“ ‘ This is not the first time this inquiry has engaged my attention. The 
point was made and decided at the June Term, 1858, in case of the United 
States v. Devlins, when the court gave the following opinion, which I read 
from my notes of the trial: “ This prayer is based on the idea that the jury 
must be satisfied, beyond all reasonable doubt, of the insanity of the party 
for whom the defence is set up ; precisely as the United States are bound to 
prove the guilt of a defendant to wTarrant a conviction. I am well aware, 
and it lias appeared on this argument, that it has been held by a court of 
high rank and reputation that there must be a preponderance of evidence in 
favor of the defence of insanity to overcome the presumption of lawr that 
every killing is a murder ; and that the same court has said that if there is an 
equilibrium, including, I suppose, the presumption mentioned of evidence, 
the presumption of the defendant’s innocence makes the preponderance in 
his favor.” 
‘“Whether a man is insane or not is a matter of fact; what degree of 
insanity will relieve him from responsibility is a matter of law, the jury 
finding the fact of the degree too. Under the instruction of the court, 
murder can be committed only by a sane man. Every body is presumed to 
be sane who is charged with a crime, but, when evidence is adduced that a 
prisoner is insane, and conflicting testimony makes a question for the jury, 
they are to decide it like every other matter of fact, and, if they should say 
or conclude that there is uncertainty, that they cannot determine whether the 
defendant wTas or is not so insane as to protect him, how can they render a 
verdict that a sane man perpetrated this crime, and that no other can ? 
“‘Nor is this plain view of the question unsupported by authority. In 
144 BOOK I.] 
IRRESISTIBLE IMPULSE. 
[§ 161 
as to create an uncontrollable impulse to do the act charged 
by overriding the reason and judgment, and obliterating the 
sense of right and wrong as to the particular act done, and 
depriving the accused of the power of choosing between them. 
If it be shown the act was the consequence of an insane delu- 
sion and caused by it and nothing else, justice and humanity 
alike demand an acquittal. Sound mind is presumed if the ac- 
cused is neither an idiot, lunatic, nor “ affected with insanity.” 
If he be insane, sound mind is wanting and the crime is not 
established, therefore the burden is on the State to establish 
sanity, and not upon the prisoner to show So, also, 
Judge Brewster, speaking for the judges of the Philadelphia 
Common Pleas, said, in 1868, “ The true test in all these cases 
lies in the word ‘ power.’ Has the defendant in a criminal case 
the power to distinguish right from wrong, and the power to 
adhere to the right and avoid the wrong ?”(P) 
In Indiana a similar view was accepted in 1869.(*!2) 
§ 160. In Iowa, in 1868, similar views were expressed by 
the Supreme Court, Chief Justice Dillon delivering the opinion. 
The capacity to distinguish right and wrong, it was held, is 
not in all cases a safe test of criminal responsibility. If a 
person commit a homicide, knowing it to be wrong, but 
driven to it by an uncontrollable and irresistible impulse, 
arising not from natural passion, but from an insane condition 
of the mind, he is not criminally responsible.(u) 
§ 161. In North Carolina, on the other hand, it has been 
the case of The Queen v. Ley, in 1840, Lewin’s C. C., p. 239, on a preliminary 
trial to ascertain whether a defendant was sufficiently sane to go before a 
petit jury on an indictment, Htjllock, B., said to the jury : “If there he a 
doubt as to the prisoner’s sanity, and the surgeon says it is doubtful, you 
cannot say he is in a fit state to be put on trial.” This opinion was approved 
in The People v. Freeman, vol. iv. Denio’s Report, p. 9. This is a strong 
case, for the witness did not say the prisoner was insane, but only that it 
was doubtful whether it was so or not. The humane, and, I will add, just 
doctrine, that a reasonable doubt should avail a prisoner, belongs to a defence 
of insanity, as much, in my opinion, as to any other matter of fact.’ ” See 
infra,§ 174. 
(t) See Fisher v. People, 23 111. 283 ; Hopps v. People, 31 111. 385. 
(<’) Com. v. Haskell, 2 Brewster, 491. (t2) Stevens ®. State, 31 Ind. 485. 
(u) State v. Felter, 25 Iowa, 67; see also McFarland’s Case, 8 Abbott (N. Y.) 
Pr. N. S. 69 ; and Mary Harris’s Case, 22 Am. Jour, of Insanity, 334. 
vol. i.—10 
145 §162] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
ruled that no impulse, however irresistible, is a defence, when 
there is a knowledge of the difference, as to the particular act, 
between right and wrong, (v) 
§ 162. Mania transitoria, or Furor transitorius, so far as it 
may be set up as a legal defence, may be properly noticed in 
this connection ; its psychological relations being reserved for 
subsequent discussion.(w) Mania transitoria, which is alleged 
to be a sudden attack of mania, exhibiting itself in a person 
whose life prior and subsequent to the attack was generally 
sane, was set up as a defence in the trial, before the Supreme 
Court of Massachusetts, in 1868, of Andrews for the murder of 
Holmes. The psychological points raised at this trial will be 
subsequently noticed. It is sufficient now to give the legal 
results introduced by Chief Justice Chapman in his charge 
to the jury. 
“ Insanity is to be distinguished from passion. One may 
become so far infuriated by passion, excited by words or 
blows or by a struggle, as to yield himself up blindly to its 
impulse, and not know what he does. But such passion is not 
insanity. One who does not control his passions is to blame, 
but an insane man is not to blame. He is prostrated by 
disease of body which has so far affected his mind that he is 
innocent in being unable to distinguish right from wrong. 
“ If the prisoner killed Holmes under the mere influence of 
evil passions, and without provocation, he is guilty. On the 
other hand, if there was no evil passion or motive, and he was 
insane, he is an innocent man, and is entitled to go at large as 
much as any of us. If he is acquitted on that ground, you 
must say so in your verdict. I will read to you the statute on 
that subject. [Reads Gen. Stat., c. 172, sec. 17.] 
“ But, as it is not pretended that he is now insane, if you 
acquit him on the ground of insanity he will be entitled to go 
at large. You will need to consider with the utmost care the 
evidence on this subject. And here there are certain presump- 
tions of fact which are founded on experience. 
“ If when a man does an act he has always been sane, this 
(t>) State v. Brandon, 8 Jones, 463. See also infra, § 170. 
(w) See infra, § 710. 
146 BOOK I.] 
IRRESISTIBLE IMPULSE. 
[§ 162 
tends to prove that he was sane when he did it. On the con- 
trary, if he had been insane a short time before the act, this 
tends to prove that he was insane when he did it. This pre- 
sumption is often applied to the making of wills and deeds. 
It applies with equal force to the taking of another’s life. 
Another similar rule is, that, if a man is sane just after having 
done an act, it tends to prove that he was sane when he did it; 
but, if he was insane just after, it tends to prove that he was 
insane when he did it. You can judge practically how strong 
these presumptions of evidence are. You are to apply them to 
the present case. 
“ Up to within a few moments of Holmes’s death, had the 
prisoner been insane ? Had he ever been insane ? or had he 
been insane within a short period ? If he had never been 
insane, or if he had not been insane for some time previous, 
that would have a tendency to show that he was not insane 
when he committed the act. From a few moments after the 
act has he been insane? If he has been sane from a few 
moments after the act, it tends to show that he was sane when 
he did it. If he has been insane since, it tends to show that 
he might have been insane when he did it. 
“ There is evidence on this subject as to his appearance some 
two years ago, when Frank Robbins, his relative, died; also 
as to his appearance at Hew Market. And some other facts 
are alluded to by his counsel. You heard them in evidence. 
I do not propose to recapitulate the evidence on this sub- 
ject. Both the experts say that these various circumstances 
fprnished no proof of insanity. There is also evidence that 
the prisoner had frequent headaches; but it hardly needs an 
expert to testify as to them. So many of us suffer intense 
pain from them during the best years of our lives, that no one 
will infer insanity from them alone. The jury will judge of 
the strength of the proof as to the prisoner’s sanity when he 
killed Holmes, arising from the testimony as to his being sane 
before and afterwards, the proof coming so near to the time of 
killing. If he was calm as well as rational immediately 
before and immediately after, it will tend to show how far he 
was calm and rational then. And in this connection the 
question, whether the prisoner had any motive to do the act 
147 § 162] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
which could possibly influence a sane man, is a question to be 
taken into consideration. You will also consider the instru- 
ment which he used, and all the circumstances of the act of 
killing. The prisoner is himself a witness, and testifies as to 
his state of mind when he did the act. We learn from him all 
the facts we know in regard to his insanity at the time. The 
description of it comes from him alone. 
“ There are two things to be inquired into on this point. In 
the first place, assuming his statement to be true, does it prove 
that bodily disease had suddenly attacked him, and that he 
acted under that influence, or that he acted under the influ- 
ence of passion, and thus became blind and furious? If it was 
the latter it was not insanity, and he must seek for an excuse 
on other grounds, which I shall speak of hereafter. On this 
point the opinion of the two experts is given. Dr. Jarvis 
says the facts indicated a maniacal paroxysm. Again, he 
says, not regarding the prisoner’s statement as true, the facts 
tend to raise a suspicion of insanity. He says the act of kill- 
ing, of itself, is no evidence of insanity. Few men would pre- 
tend that the mere act of killing another is, of itself, evidence 
of insanity. It would give to crime perfect impunity if the 
commission of crime were to be regarded as an evidence of 
insanity. I believe there are some philosophers who pretend 
to think it is so; but they lay aside common sense, and would 
deprive the community of all protection against criminals. It 
is proper also to say, that, if a homicide is committed with cir- 
cumstances of cruelty and atrocity, that cruelty and atrocity, 
of itself, does not tend to prove insanity. The statute treats 
such circumstances as aggravations of the crime, and not as 
proof of insanity. If they were of themselves regarded as evi- 
dence of insanity, it would furnish an inducement to every 
murderer to act with as much cruelty as possible, in order to 
furnish proof that he was insane, and excuse himself on that 
ground. But if the act is done without any assignable motive, 
you look more readily to insanity as the cause, than if a strong 
motive were proved. 
“I have spoken of the opinion of Dr. Jarvis that there might 
have been a sudden attack of insanity that came on without 
any premonition, led to the murder, and departed as soon as 
148 BOOK I.] 
[§ 164 
MORAL INSANITY. 
the murder was committed, leaving no trace behind. The 
opinion of Dr. Choate is the contrary. He regards such a kind 
of insanity as unheard of and impossible. As insanity arises 
from bodily disease, he thinks it could not come on so sud- 
denly, rage so violently, and then totally disappear. You are 
to judge of these opinions. The opinions of experts are mere 
evidence for the j ury to consider in connection with other evi- 
dence. The responsibility is, after all, on you to say whether 
the prisoner is, or is not, guilty by reason of insanity. I think 
the opinions of experts are not so highly regarded now as they 
formerly were, for, while they often afford great aid in deter- 
mining facts, it often happens that experts can be found to 
testify to any theory, however absurd. The experts before 
you are gentlemen of learning, and you must judge between 
them.”^1) 
An interesting case of alleged mania-transitoria, with the 
opinion of Dr. Caspar, will be hereafter reported at large.(i«2) 
§ 163. (d1) “Moral Insanity” {i.e. a supposed insanity of the 
MORAL SYSTEM CLAIMED TO COEXIST WITH MENTAL SANITY) IS NO 
DEFENCE. 
[For several important medico-juridical opinions in cases of alleged 
“moral insanity,” see Appendix, §§ 834, 838, 843, 848.] 
At the outset it must he remembered that “moral insanity,” 
as above defined, is to be distinguished (1) from insane irre- 
sistible impulse, (2) from transitory mania, and (3) from occult 
insanity, with each of which it is sometimes confounded. 
Hereafter it will be shown(x) that moral insanity, viewed 
in this sense, has, psychologically, no existence.^1) It will 
also be shown that “ motivelessness” is no necessary proof of 
insanity. At present it will be proved that moral insanity 
is not, by the Anglo-American law, recognized as a defence to 
an indictment for crime. 
§ 164. Moral insanity, viewing the term in the sense which 
(w1) See Review of this case by Dr. Jarvis, in 26 Am. J. Ins. 369 ; and 
infra, §§ 710-722. 
(w2) Infra, Appendix, § 840. 
(®) Infra, §§ 531-678. (x') Infra, §§ 401-404. 
149 § 165J 
[book i. 
INSANITY AS A CRIMINAL DEFENCE. 
is given above, has been, whenever it has been suggested as 
a defence, repudiated by the English courts.(y) Recently 
(1868-1872) it has been the subject of renewed discussion, in 
three remarkable trials. 
§ 165. The first in order of time is that of Townley in 1868. 
He was shown, on the trial before Baron Martin, to have 
belonged to a family in which positive insanity existed; it 
was proved by medical witnesses that he stated to them that 
he did not think he had committed any crime, though it must 
be remembered that this is what was said by Burr after the 
death of Hamilton, and what would be said by any one acting 
on the “law of honor,” or any other pretended higher law; 
and it was shown that the reason on which he relied for this 
notion was, that, the lady whom he killed having been en- 
gaged to him, she was his property, and that, for what he 
called virtual adultery, he was, by the law of honor, entitled 
to punish her by death. It was also testified by Hr. Forbes 
Winslow, that he found it impossible to impress the defendant 
with a sense of the seriousness of the issue. But Baron 
Martin charged the jury, that, in point of law, these facts did 
did not constitute a defence. “ If,” said he, “ his (the defend- 
ant’s) real motive was, that he conceived himself to have been ill 
used, and, either from jealousy of the man who was'preferred to him, 
or from a desire of revenge upon him, committed the act, that 
would be murder. These were the very passions which the 
law required men to control; and, if the deed was done under 
the influence of these passions, there was no doubt that it was 
murder.” The cautiousness with which this is stated cannot 
escape observation. The judge does not say that the defendant 
was to be convicted though he did the act under an insane 
delusion that to do so was, by some supposed higher law, 
right. It is simply declared that to kill under influence of 
jealousy or revenge is murder. It is proper to add that the 
defendant was convicted, and sentenced for life to penal servi- 
tude ; during which he committed suicide.(^) 
(y) R. v. Oxford, 9 C. & P. 533 ; R. v. Goode, 7 Ad. & El. 536 ; R. «. Barton, 3 
Cox, C.C. 275 ; R. v. Higginson, 1 C. & Iv. 129 ; R. v. Layton, 4 Cox, C.C. 149. 
(2) See R. v. Townley, 3 F. & F. 839 ; supra, § 127. Shortly after Town- 
ley’s case, on a trial for murder, before Erie, J., the defence relied on evi- 
150 BOOK I.] 
MORAL INSANITY. 
[§ 167 
§ 166. The Rev. J. Selby "Watson, a clergyman of over 
seventy years, was tried in London, in January, 1872, for the 
murder of his wife. It appeared in evidence that for years 
he had been suffering under her petulance and violence ; and 
it was made probable that the act was done in a condition of 
frenzied rage. The defence was insanity, lashed into fury by 
provocations which had become unendurable. Mr. Justice 
Byles, in his charge to the jury, said, according to the report 
in the Times of January 13th, 1872, “that the real and only 
question * * was this, Was the prisoner at the time he com- 
mitted the act legally responsible for it, and was he a respon- 
sible agent ? That depended upon a question on which the 
counsel also agreed, Did he at the time he committed this act 
know what he was doing? If not, of course he was not crimi- 
nally responsible. Did he also know that what he was doing 
was wrong? He was perfectly aware that doubts on the uni- 
versal applicability of this rule had been expressed by many 
eminent persons for whose opinion he had the greatest respect. 
But if it was to be altered at all, it must be altered by act of 
parliament.” The defendant was convicted and sentenced to 
be hung, with a recommendation to mercy; and the sentence 
was commuted to imprisonment for life. 
§ 167. Christiana Edmunds was tried in January, 1872, at 
London, before Baron Martin, for the murder of a little boy, 
named Barker, on the 12th of the preceding June. The uncle 
of the boy had on that day bought some chocolate cream 
drops from a respectable confectioner named Maynard. Of 
these the boy ate several, and died a few hours afterwards. 
At a post-mortem, strychnine enough was found in his stomach 
to have killed an adult. Shortly afterwards evidence trans- 
pired which connected the prisoner with the poisoning. It 
dence showing a great amount of senseless extravagance and absurd eccen- 
tricity of conduct, coupled with liabits of excessive intemperance, causing 
fits of delirium tremens, the prisoner, however, not having been laboring- 
under the effects of such a fit at the time of the act, and the circumstances 
showing sense and deliberation, and a perfect understanding of the nature 
of the act: it was held, that the evidence was not sufficient to support the 
defence, as it rather tended to show wilful excesses and extreme folly than 
mental incapacity. R. v. Leigh, 4 F. & F. 915. See also R. v. Southey, 4 F. 
& F. 864; and also an interesting review in 23 Am. Jour, of Insanity, 387. 
151 § 168] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
appeared that between March and June she obtained from a 
chemist at Brighton, on various pleas, and once on a false 
name, a considerable quantity of strychnine. Towards the 
end of May, she sent a boy whom she met in the street to buy 
some chocolate-drops for her, at Mr. Maynard’s. When he 
returned with them, she said they were too large, and she sent 
him back to exchange them for others which were smaller. 
This was done ; and the case of the prosecution was, that in 
this way she introduced into the shop the poisoned sweets by 
which young Barker had been killed. It further appeared 
that she had frequently sent little boys on a similar errand; 
that she had left parcels of sweets in other shops; and that 
children who had eaten out of these parcels had been taken 
sick with symptoms not unlike those produced by strychnine. 
It was shown, also, by way of motive, that she had become 
attached to a Dr. Beard; that she had given Mrs. Beard a 
chocolate-cream which had caused the latter much sickness; 
that, to divert suspicion from herself of intentional poisoning, 
she had sought to throw the charge on Mr. Maynard ; that, to 
do so, she had, in the way specified, introduced poisoned candy 
into his store; and that, to clinch the matter, she gave evi- 
dence, on the inquest that followed the death of young Barker, 
that she had herself bought poisonous candy at Mr. Maynard’s 
shop. She was also shown to have written anonymous letters 
to the father of Barker, urging him to prosecute Mr. Maynard; 
and she took an active part in that prosecution herself. 
§ 168. Insanity was the defence, and it was proved that the 
prisoner’s father was, at the age she had reached on the trial, 
a maniac, and that he died in an asylum ; that her brother was 
from childhood an epileptic idiot; that her sister labored 
under chronic hysteria, and had attempted suicide; that her 
mother’s father died at 43 in an imbecile state from paralysis; 
and that she herself, eighteen years before, had suffered from 
partial paralysis and hysteria. Dr. Wood, physician to St. 
Luke’s Hospital, stated that he visited the prisoner about ten 
days before the trial, in connection with Hr. Maudsley and 
others. He was struck with her indifference to her position ; 
he thought her quite incapable of estimating it; and he 
believed her “incapable of judging between right and wrong 
152 BOOK I.] 
MORAL INSANITY. 
[§ 169 
in the same sense that other people would.” Dr. Robertson 
testified that he thought “her intellect quite clear and free 
from any delusion, but that her moral sense was deficient, as 
in the descendants of insane parents.” Dr. Maudsley con- 
curred generally with Dr. Robertson, but he went on to say, 
in his cross-examination, that “every body who committed 
crime exhibited some want of moral feeling.” 
§ 169. Baron Martin, in his charge,(a) said, in respect to 
insanity, the question “ was a difficult one. A poor person, he 
remarked by the way, was seldom inflicted with insanity, and 
it was common to raise a defence of that kind when people of 
means were charged with the commission of crime. He had 
heard a doctor say that all mankind were mad more or less, 
but that had little to do with the case under consideration. 
The state of mind which excused crime was well fixed in our 
law. There were many diseases to which the mind was liable 
as well as the body. There was the idiot, who was born 
without any mind whatever. Again, there was the man who 
was raging mad, and, if he had what was called a homicidal 
tendency, he would have no more criminal responsibility than 
a tiger. But the most numerous cases of that kind were 
of persons said to be subject to delusions. They were persons 
who believed in a state of things which did not exist, and 
acted on that state of things.” After giving the answers 
of the judges in McNaughten’s case, he said, “If the jury 
in this case should think that the prisoner did not know 
right from wrong at the time she committed the crime with which 
she is charged, if she did commit it, they must acquit her.” The 
scope of the charge is, that, if the defendant was under a delu- 
sion which made the poisoning seem right to her, she was 
entitled to an acquittal on the ground of insanity. If not, she 
should be convicted. It is difficult to see what sound objections 
can be made to this view of the law. If the fact that a person 
has descended from insane ancestors, or has years back shown 
symptoms of insanity, is a bar to an indictment for crime, 
then persons who have been so affected will become a class 
who can murder, or burn, or rob with impunity, and whom 
(a) See report in the Times, of January 17, 1872. 
153 §170] 
[book i. 
INSANITY AS A CRIMINAL DEFENCE. 
society, as it cannot punish, will be obliged to sequestrate by 
a process which will bear far more harshly on them than 
would the penal amenability which would be otherwise im- 
posed. The act for which the prisoner was tried was marked 
by much premeditation, and was executed with great intelli- 
gence ; and there was no proof at the trial either of any insane 
delusion on her part, or of such a condition of mind and will 
as deprived her of ability to resist the impulse to the fatal 
deed. Dr. Robertson came nearest to a positive statement; 
but he limited himself to saying, that, while the prisoner’s 
intellect was good, her moral sense was deficient, and that her 
act was “on the border-land between crime and insanity.” 
Even, therefore, supposing that the law recognized such a de- 
fence as irresistible homicidal impulse, it is difficult to see how 
this defence could have been sustained on such feeble asseve- 
rations as these, in the face of direct proof that the prisoner 
was fully capable of so moulding her “impulse,” not only as 
to make it subservient to a very important purpose of her own, 
but to let it out when it was likely to be undetected, and to 
restrain it when to indulge in it would bring exposure. She 
was under the dominion, so far as the testimony went, of no 
such unrestrainable rage for poisoning as would force her to 
lay her poison in the public streets, whenever the poison was 
in her hands, and persons to be poisoned before her face. She 
poisoned when she could do so with impunity ; she controlled 
herself when she could not. 
§ 170. Such is the case as it appeared on the trial. But, so 
slight were the opportunities of examination which had been 
secured by the experts who testified for the defence, and so 
consequently imperfect was their testimony, and so earnest 
were the appeals made for a reconsideration of the question on 
the grounds of additional testimony as to insanity having been 
secured, that Baron Martin united in recommending a recon- 
sideration of the question by the Home Secretary.(6) Addi- 
(&) The Lancet took strong ground against the verdict. It went so far as 
to make the following extraordinary statement:— 
“ If there be one thing certainly proved in mental medicine, it is this, that 
for any woman belonging to a family which (like that of the Edmunds’s) 
was a prey to insanity and other nervous diseases, and living an involuntarily 
154 BOOK I.] 
MORAL INSANITY. 
[§ 170 
tional medical testimony was then taken, and it was under- 
stood that Sir W. Gull, and Dr. Orange, superintendent at 
single life while struggling with hysteria and suppressed sexual feeling, it 
would be almost impossible to go on to the critical age of forty-three without 
actual derangement of mind. That her crime had a motive, and that her 
conduct was directed writh an infernal cunning towards her end, is not in the 
least inconsistent with the worst forms of madness. We do not hesitate to 
say that had Christiana Edmunds been hanged, a judicial murder would 
have been committed.” 
Dr. Forbes Winslow added his high authority to the opinion of Dr. Eobertson. 
See also Eeview of these communications in London Spectator of Feb. 8,1872. 
The following are part of the comments of the Saturday Revieio :— 
“ It must be admitted that public opinion influences the administration of 
criminal justice in this country, and public opinion is liable to fluctuations. 
Some years ago corporeal punishment was in extreme disfavor, whereas now 
people apparently like their newspaper to inform them how a garroter looked 
during his flogging, and it is frequently suggested that other offences besides 
robbery with violence might be usefully visited with the lash. Garroting 
indeed went on until nobody was safe in the streets after dark, and it was 
felt that the civilization and humanity of the age must submit to the unpleas- 
ant necessity of reviving a punishment which had been regarded as only suit- 
able to a period of ignorance and barbarism. * * Suppose that Townley 
had been acquitted on the ground of insanity, and that, as is only too prob- 
able, that form of insanity had become common, there would soon have been 
a general concurrence of opinion that hanging was the only effectual cure for 
it. * * Mr. Baron Martin, in that case, told the jury that, if Townley 
knew that tbe act which he committed was contrary to the law of God and 
punishable by the law of the land, he was guilty of murder. This, indeed, is 
all that an English judge can say of such a case, and perhaps it is all that he 
ought to say. The doctrine of vitiated moral sense excusing crime cannot 
be admitted without endangering the foundations of morality and criminal 
justice. Take, for example, the character which wrould have been described 
in the words of a well known play of the last century, as that of ‘ bold in- 
triguer and a gay companion.’ The heroes of many comedies of that time 
were men of vitiated moral sense, but it would never have occurred to any 
psychologist to suggest that seduction or adultery was pardonable because it 
was committed without compunction. Another medical witness, Dr. William 
Wood, ‘was very much struck with prisoner’s absolute indifference to her 
position, and he failed altogether to impress her with its seriousness. ’ These, 
again, are almost the exact words which were used by Dr. Forbes Winslow 
in Townley’s case. This witness discussed with the prisoner the subject of 
what was said to have passed between her and Dr. Beard. He asked whether 
she thought it wrong for a person to destroy the life of another person because 
she believed that the husband of that person wished to get rid of her. 
‘ After some hesitation she said she thought it would be wrong, but she did 
not say it in such a manner as to lead him to believe she really thought so. ’ 
155 § 171] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
Broadmoor, both high authorities in psychological medicine, 
united, after a careful examination, in the opinion that the 
defendant was insane. Her sentence was consequently com- 
muted to imprisonment at Broadmoor as a criminal lunatic. 
§ 171. In reviewing this case, we are first compelled to 
notice the very scanty preparation which had been made to 
enable the medical experts at the trial to speak intelligently 
on the issue. The defence, indeed, was singularly defective in 
the scope of the testimony it adduced. Dr. Beard, the defend- 
The witness here admits, while attempting to qualify the admission, that the 
prisoner had that capacity of distinguishing right from wrong which the law 
holds to be sufficient to render her responsible for her actions. It seems to 
follow that until the law is changed there is nothing more to be said about 
the case. Dr. Maudsley gave evidence to the same effect. ‘ He found an 
extreme deficiency of moral feeling as to the crime with which the prisoner 
was charged, and she did not appear thoroughly to realize her position.’ 
Such evidence ought to be disregarded in this as it has been in many other 
cases, but it happens that the medical witnesses are supported by the fact 
that near relations of the prisoner have been committed to lunatic asylums on 
the usual certificates, and have remained in them until death. Mr. Baron 
Martin, commenting upon similar evidence which was given in Townley’s 
case, said the object of that evidence was to show that it was possible, and 
not unlikely, that the hereditary taint might exist in the prisoner. ‘ All the 
evidence, however, failed to show the existence of any delusion in the 
prisoner’s mind which could explain his act.’ These words fit accurately to 
the present case, but it must be acknowledged that the evidence of insanity 
in the prisoner’s family went much beyond that which was given in Town- 
ley’s case. It is of course possible that the doctors may be right although 
they give wrong reasons for their conclusions. We may observe that Dr. 
Maudsley has given the same reason for the same conclusion in the case of 
Watson, where we cannot help saying that both reason and conclusion ap- 
pear to us preposterous. It lias of course been remarked that, if the prisoner 
Edmunds had committed suicide, and the evidence of insanity existing in the 
family had been given at an inquest, the jury would have arrived without 
hesitation at a verdict which would have been generally approved. It is, 
however, unnecessary to add that in all such cases we ought not to be unduly 
influenced in our estimate of facts by the indisposition which we feel to give 
apparent sanction to a theory of irresponsibility for crime which we regard as 
mistaken and pernicious.” 
In commenting on these cases, a writer in the Times said : “ Oxford’s con- 
finement as a lunatic had no effect whatever in preventing persons of weak 
or perverse minds from firing or attempting to fire at Her Majesty ; but the 
moment flogging was assigned as the penalty for the offence, the weak and 
the perverse restrained themselves at once, and the offence was never heard 
of again.” 
156 BOOK I.] 
MORAL INSANITY. 
[§ 172 
ant’s family physician, for whom it was afterwards suggested 
by Dr. Winslow that the prisoner had an “ insane passion,” 
was not called ; though no one was so competent as he to 
speak as to the state of her mind. But, waiving this, the 
experts who were examined had had no personal acquaintance 
with her, and formed their opinion on a brief prison interview. 
How little comparative weight opinions given on such slight 
examinations are entitled to, will be hereafter already seen.^1) 
The medical gentlemen referred to were not to blame. They 
were asked by the prisoner’s friends to attend her at the 
periods in question, and they did so. The difficulty arose 
from the practice of making such examination, not judicial, as 
in Germany, under a commission from the government, but 
partisan, conducted by the defence, according to its capacity 
or policy. A poor defendant, under this system, has no chance. 
A rich defendant can indeed, at such periods as he may desire, 
obtain the attendance of distinguished experts, but their testi- 
mony is necessarily imperfect and ex parte. 
§ 172. Then, again, the peculiar mode by which convictions 
are in England reviewed tends, in proceedings such as the 
present, still further to unsettle the public mind, and to in- 
crease the uncertainty of the law. That the Home Secretary 
should have issued a requisition to Dr. Orange and Sir W. 
Gull, to semi-judicially examine the question of Christiana 
Edmunds’s sanity, was eminently proper. But the examina- 
tion should have been conducted in open court, or, at least, as 
is the practice in Germany, the return of those eminent phy- 
sicians should have been under oath, and should, reasons and 
conclusions, have been published. As it is, we have, on the 
one side, a published trial, leading to the conclusion of her 
sanity, on which conclusion she was found guilty by the jury 
and sentenced by the court, and, on the other hand, a secret 
subsequent investigation, showing her insanity, leading to the 
virtual setting aside of verdict and sentence. We have no 
right to assume otherwise than that each decision, on its own 
particular evidence, was right. But, to understand the deci- 
sion of the Home Secretary, the testimony on which it was 
based should be supplied. 
(b1) See infra, §§ 328-345. 
157 § 174J 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
§ 173. But, thirdly, it must he recollected, that, whatever 
may have been the erroneousness of the verdict of the jury, 
and no matter how strongly such error may have been ground 
for a revision of the sentence by the home office, there was at 
no time any question as to the propriety of the rulings of the 
court. These rulings were the subject of careful consultation 
among the several judges. It was stated, by Baron Martin, 
that this was their deliberate view, and that it was not likely 
to be changed except by act of parliament. The challenge 
thus thrown out has not been accepted. In the House of 
Lords, which, as the supreme appellate court of the empire, is 
peculiarly charged with cognizance of such issues, the only 
expression on the subject has been one of assent. We may 
therefore hold it to he established in England, that the doctrine 
of “ moral insanity,” so far as it involves the idea of irresponsi- 
bility based exclusively on moral as distinguished from mental 
derangement, is rejected by the courts. 
§ 174. In the United States, there is almost equal judicial 
unanimity in refusing recognition to this theory, and in 
declaring that no amount of derangement of morals is a defence 
unless accompanied with mental insanity. To this effect are 
decisions in in Maine,(d) in Hew York,(e) in 
Hew Jersey,(/) in Delaware,(g) in Virginia,(i) in Horth Caro- 
in Ohio,(/i:) in California,(1) and in almost every remain- 
ing jurisdiction where the question has been mooted.(m) In 
(c) Com. v. Rogers, 7 Mete. 500; Com. v. Heath, 11 Gray, 303 ; see U. S. 
v. Holmes, 1 Clifford, 198. 
(d) State v. Lawrence, 57 Me. 574. 
(e) Freeman v. People, 4 Denio, 10 ; supra, § 145, note i. Shater v. Peo- 
ple, 2 Comst. 199 ; McFarland’s Case, 8 Abbott, Prac. Cas. N. S. 69. 
(/) State v. Spencer, 1 Zabriskie, 196. 
(g) State v. Windsor, 5 Harr. 512. 
(*) Yance ». Com., 2 Va. Cases, 132. 
(j) State v. Brandon, 8 Jones, 403. 
(&) State v. Gardiner, Wright, 392; see U. S. v. Schultz, 6 McLean, 121; 
Farrer v. State, 2 Ohio St. R. 54 ; see Warden’s Forensic View, 498. 
(Z) People v. Coffman, 24 Cal. 230. 
(m) The courts, in varied terms, unite substantially in declaring, as the 
proposition is stated by a very able jurist, Judge Thurman, (Farrer v. State, 
2 Ohio St. R. 54) “that there is no authority for holding that mere moral 
insanity, as it is sometimes called, exonerates from responsibility.” 
158 BOOK I.] 
MORAL INSANITY. 
[§ 175 
Pennsylvania, it is true, there is an apparent departure from 
this current of authority by the acceptance, in a case already 
cited,(w) of “ moral insanity” as a doctrine that could be under 
certain circumstances sanctioned by the courts. But a scru- 
tiny of this case will show, that C. J. Lewis, by “moral 
insanity,” means, not the mania sine deliria of Pinel, or, as 
here defined, moral without mental lunacy, but insanity in its 
general sense, manifesting itself in irresistible impulse. His 
views, therefore, are in accordance with those here expressed. 
§ 175. The nearest advance to the recognition of moral 
insanity was made in 1864, by the Court of Appeals of Ken- 
This result was in part due to a reaction from the 
extreme to which the courts and executive had, in one or two 
noted prior cases, gone in rejecting the defence of insanity 
almost in toto ; but, be this as it may, we find Robertson, J., who, 
when at the bar, had taken bold ground, in one of the cases 
last referred to, in maintenance of moral insanity, now main- 
taining the same position on the bench. “ Moral insanity,” 
he tells us, “is now as well understood by medico-jurists, and 
almost as well established by judicial recognition, as the intel- 
lectual form^o1) Mentally, man is a dualism consisting of an 
(n) See supra, § 158. 
(o) Smith v. Com., 1 Duvall, 224. 
(o1) To this assertion, Dr. Chipley, medical superintendent of the Eastern 
Kentucky Lunatic Asylum, makes, in the American Journal of Insanity, 
for July, 1866, the following just reply:— 
“It has seemed to me that it is not an unusual thing for those who enter- 
tain the opinions expressed by the court, to claim a greater weight of 
authority in their favor than is warranted by the facts. Judge R. says: 
‘ Moral insanity is now as well understood by medico-jurists, and almost as 
well established by judicial recognition, as the intellectual form.’ 
“ It is to be feared that this assertion has been derived, not from an examin- 
ation of the decisions of the courts, but from the declarations of active parti- 
sans whose wishes are father to the thought. 
“ So far as I have been able to ascertain, the doctrine of moral insanity has 
not been recognized in the courts of England, whence we have drawn our 
principles of law ; nor in the courts of this country, except in a few isolated 
instances. Certainly its recognition has not been generally acceded to in the 
higher courts of either country. Nor is there any greater accord among 
those medical men whose positions have made them most conversant with 
all forms of mental maladies. 
“The doctrine is not recognized, for any medico-legal purposes, by a 
159 §175] 
INSANITY AS A CRIMINAL DEFENCE. 
BOOK I. 
intellectual and a moral nature. * * No enlightened jurist 
now doubts the existence of such a type of moral, contradis- 
majority of the members of this association, to whom is confided the care of 
almost all the insane in our country. 
“While, therefore, it remains unrecognized in the courts of England, and 
has been admitted by only very few judicial authorities in our own land ; and 
while it is repudiated, as a false doctrine, fraught with great evil to society, 
by a majority of the practical psychologists, known to us to be gentlemen of 
fidelity, integrity, and experience, are we not warranted in entering a claim 
to the weight of authority in the negative ? Certainly there is something 
more than a ‘ dissentient voice occasionally heard from the bench, the bar, 
the medical profession at large, and from those who claim some special 
knowledge of insanity and the insane.’ 
“That the doctrine is advocated by many honest, capable and faithful ob- 
servers, no one can gainsay. It is impossible to avoid this division of senti- 
ment on any scientific or professional question not absolutely demonstrative 
in its character, and it is the division of sentiment among gentlemen who are 
ardently seeking truth, and the importance of the subject, which bring it so 
frequently to the surface for renewed examination. There is here no partisan 
spirit, but a sincere desire to harmonize on a truthful and solid basis. 
“I do not propose to discuss the abstract question of the possibility of a 
perversion of what are called the moral powers, or, as Professor Upham terms 
them, the sensibilities. 
“ This may occur from ill-directed education, from habit, evil associations, 
and the absence of that salutary control that should be exercised over persons 
in early life, which make men desperately wicked. But the practical question 
for us is this : Shall such perversions free one from legal penalties while the 
intellectual powers are unimpaired ? In the school of morals and the forum 
of conscience, I will readily admit that all crimes are species of insanity, but 
I am not prepared to admit the plea of insanity as an excuse for violations of 
law, unless it can be shown that there is a congenital or accidental defect of 
those powers with which the Creator has endowed man for the purpose of 
enabling him to discriminate between right and wrong and to choose the one 
and avoid the other. 
“ In this discussion it is important also to understand what is meant by 
moral insanity. If we accept the definition of some of its advocates, as that 
of the learned Dr. Copland, the controversy is at an end, and the adjective 
‘ moral’ may be very properly dropped from medico-legal science. He defines 
it to be ‘a perversion of the inclination, temper, etc., the intellectual facul- 
ties being more or less weakened or impaired.’ This yields all for which the 
opponents of the doctrine contend. They make no claim to any special 
amount of intellectual impairment, but simply insist that some degree of 
mental unsoundness is required to free one from accountability for his acts. 
But the term is not generally applied, simply because the mental aberration 
is manifested chiefly in the state of the feelings, affections, temper, habits, and 
conduct of the individual; but, in the language of Dr. Pritchard, who is said 
by Dr. Bucknill to have been ‘ the able and learned inventor of moral 
160 BOOK I.] 
MORAL INSANITY. 
[§ 175 
tinguished from intellectual insanity as homicidal mania, or 
morbid and uncontrollable appetite for man-killing; and 
insanity,’ it denotes ‘a disorder which affects only the feelings and affections, 
or what are termed the moral powers of the mind, in contradistinction to the 
powers of the understanding or intellect.’ It is in this sense that I propose 
to consider the doctrine. 
“ Whenever, therefore, it can be shown that any one or more of the intellect- 
ual faculties become unsound from disease, the case is at once removed from 
the category of moral insanity. It will be important to bear this in mind, 
especially, in any consideration that may be given to the cases that have 
been so repeatedly alleged as instances of pure moral insanity—cases which 
have been cited and reproduced so frequently that they have become suf- 
ficiently worn to expose the fallacy of the very doctrine they are intended to 
support. 
“ In order to determine the limits of man’s responsibility, it is important to 
ascertain the foundation of his accountability. Why is he held responsible 
for his acts ? 
“ On this topic, I do not intend to enter upon any metaphysical disquisition. 
Metaphysicians are not agreed among themselves, in the views they enter- 
tain. They are all prone to analyze the mind into great departments, assign- 
ing to each certain functions or powers. Professor Upham says: ‘The 
human mind exists in the three great departments of the intellect or under- 
standing, the sensibilities, and the will,’ and he declares ‘ the office of the will 
is mandatory and executive.’ 
“Others, with more reason I think, consider the will as a mere resulting 
power—the mere power of obeying the dictates of the understanding. 
“ For all our purposes, the mind is an entity with multiple powers of mani- 
festation. 
“We admit that, in a certain sense, the propensities and sentiments are 
integral portions of our mental constitution, and that they are liable to irreg- 
ular and deranged action ; but it does not follow that one may become irre- 
sponsible for his acts while intellect remains sound. 
“Man is not made accountable because he is endowed with propensities 
and instincts; these he has in common with the beasts that perish, and for 
whom no criminal laws are enacted. 
“Man’s propensities and passions, and their liability to irregular and de- 
ranged action, make penal statutes necessary to the protection of society ; but 
he is held accountable only because he is also endowed with intellectual fac- 
ulties and a free rational will or power capable of regulating and controlling 
the sensibilities. 
“ If one is born with all the emotional endowments of our nature, but des- 
titute of understanding, his irresponsibility is unquestionable. The same is 
true when the faculties of the understanding are perverted, impaired, or 
destroyed by disease. 
“In every aspect in which man’s accountability is viewed, we arrive at 
the same point, that its sole basis is the existence and soundness of the intel- 
VOL. I.—11 
161 §177] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
pyromania, or the like passion for house-burning; kleptomania, 
or an irresistible inclination to kill.” * * But, if his 
insanity extend no further than a morbid perversion and pre- 
ternatural power of insane passion, or emotion, he not only 
“knows right from wrong,” but knows, also, that the act he 
is impelled to do is forbidden by both moral and human law. 
§ 176. We have to regret, in the opinion just quoted, an 
ambiguity in the use of terms which makes it doubtful 
whether the “moral insanity” of which the writer speaks, is 
simply the “ irresistible impulse” of a person mentally insane, 
or is that supposed state of moral unsoundness coexisting with 
mental soundness which the technical term conveys. If the 
former was intended, the decision goes no further than those 
sustained in previous sections, which declare that an irresist- 
ible impulse, in an insane person, coercing crime, is a defence 
to an indictment for such crime. If, however, Judge Robert- 
son meant more than this—if his purpose was to say that 
there could be moral insanity coexisting with mental sanity— 
then we must remember that he states this as a supposed ren- 
dition of medical science, and that his opinion is simply a 
statement of fact as to which it will be seen he is entirely 
mistaken. So far from moral insanity in this sense being ac- 
cepted, it is repudiated by the just weight of modern psycho- 
logical opinion.(o2) 
§ 177. In 1869, the same judge, in an insurance case, where 
the question was whether an insane suicide avoided the policy, 
took occasion further to enforce these views: “ According to 
lectual powers—those wonderful endowments which so eminently distinguish 
man from other animals, which enable him to discriminate between good and 
evil, right and wrong, and to choose the one and avoid the other ; or, in the 
language of Judge R., he is accountable because he has ‘the light of reason 
to guide him in the pathway of duty, and a free and rational presiding will 
to enable him to keep that way in defiance of all passion and temptation.’ 
“If, then, accountability is a structure erected solely on the intellectual 
power, must it not remain unshaken so long as its foundation is sound and 
unbroken ? Is it not illogical to set out with the fundamental proposition, 
that man is made responsible for his acts only because he is gifted with an 
understanding, and then arrive at the conclusion that he may become irre- 
sponsible without the impairment or disease of any one of its powers ?” 
(<?2) See infra, §§ 531-678. 
162 BOOK I.] 
MORAL INSANITY. 
[§ 178 
matured philosophy, and the corroborating authority of ele- 
mentary writers such as Prichard and Esquirol and Ray and 
Taylor, and of many modern adjudications both British and 
American, there may be moral as well as intellectual insanity, 
and essentially distinguished from it. When, as often happens 
from congenital malorganization or supervenient disturbance 
of the normal condition of a ‘ sound mind in a sound body,’ the 
senses present false images which are accredited necessarily by the 
deluded victim as intuitive certainties, no reasoning or proof can 
rectify the illusion of a mind in such abnormal condition, and, 
consequently, as no punitory sanction can prevent the effect 
of such insane delusion, there is no legal responsibility. But, 
while the senses are apparently sound and true, the affections 
may be perverted or the moral sentiments unhinged in such a 
degree as to subjugate the will to some morbid appetite or 
ungovernable passion, and thus precipitate against the will in- 
sane but conscious wrong. This is contra-distinctively called 
moral insanity. Such are the forms of monomania entitled 
kleptomania, pyromania, nymphomania, homicidal mania, etc., now 
well defined and recognized as irresponsible insanity. Whether 
and how far these two distinctive forms of insanity run into 
and sympathize with each other is unknown. But generally 
the one is apparently untinged by the other, and in moral 
dethronement by insane passion there may be no delusion, but 
the will is overwhelmed by delirious passion, which it can 
neither stifle nor successfully resist.” It was held, therefore,, 
that self-destruction under moral insanity was such death as 
made the insurers liable, though the policy contained the usual 
clause of avoidance in case of suicide.(p) 
§ 178. But the authority of this opinion is more than neutral- 
ized by the fact that it was delivered in adivided court, assented 
to by two judges, but, in respect to the question of moral 
insanity, dissented from by Chief Justice Williams and Judge 
Harding. “ In all the vague, uncertain, intangible,, and unde- 
fined theories of the most impracticable metaphysician in psy- 
chology or moral insanity,” said Williams, C. J., “no court of 
(p) St. Louis Mutual Insurance Co. v. Graves, 6 Bush, 644; 1 Bigelow’s 
Insurance Cas. 736. 
163 § 179] 
[book i. 
INSANITY AS A CRIMINAL DEFENCE. 
last resort, in England or America, so far as has been brought 
to our knowledge, ever before announced such startling, irre- 
sponsible, and dangerous proposition of law, as that laid down 
in the inferior court. For, if this be law, then no longer is 
there any responsibility for homicide, unless it be perpetrated 
in calm, cool, considerate condition of mind. What is this 
proposition when compressed into a single sentence? That, 
if his ‘ intellect was unimpaired, and he knew it was fordid- 
den both by moral and human laws,’ yet, if at 4 the instant 
of the act his will was subordinated by any uncontrollable 
passion or emotion causing him to do the act, it was moral 
insanity, and they ought to find for the plaintiff.’ Concede 
that it was through either passion or mortification or fear of 
disgrace because of this rumor, and instead of killing himself 
he had killed his brother, or some one else whom he suspected 
of being connected with the rumor, should this transaction of 
passion or mortification or fear of disgrace have exempted him 
from criminal responsibility? If so, then indeed the more 
violent the passion and desperate the deed the more secure 
from punishment will be the perpetrator of homicide or other 
crimes. * * The doctrine of moral insanity, ever dangerous 
as it is to the security of the citizen’s life, and pregnant as it 
is with evils to society, has but little or no application to this 
case. Too uncertain and intangible for the practical conside- 
ration of juries, and unsafe in the hands of even the most 
learned and astute jurist, it should never be resorted to for 
exemption from responsibility save on the most irrefragable 
evidence, developing unquestionable testimony of that morbid 
or diseased condition of the affections or passions so as to 
control and overpower or subordinate the will before the act 
complained of; for, if the act is to be evidence of moral insanity 
for the suicide, so it will be for the homicide, the parricide, 
and the seducer and the ravisher.” 
§ 179. In a remarkable case tried in April, 1872, before the 
criminal court of St. Louis, Missouri, the defence of insanity was 
treated in a way to show that the bar as well as the court were in 
practical accordance with the distinctions which we have above 
set forth. David II. Fore was put on trial for the murder of 
Munson Beach. It was conceded that the deceased was shot 
164 BOOK I.] 
MORAL INSANITY. 
[§ 180 
by the defendant in a public street, there being no immediate 
prior personal altercation. The defence was that the defend- 
ant was insane, having been rendered so by the interference 
of the deceased in his, the defendant’s, domestic affairs, which 
ended in a separation between the latter and his wife. Evi- 
dence was given to show that the father, the uncle, and several 
cousins of the defendant, had been deranged; and that the de- 
fendant some years previous to the homicide had exhibited 
unquestionable proof of insanity, which his domestic troubles 
had subsequently tended to recall in increased force. 
§ 180. The court,{q) in charging the jury, said, that “the 
opinions of medical experts was testimony before them, but 
subject to the same rules as to credit or disbelief as the testi- 
mony of other witnesses. Their opinions as experts, based 
upon the statements of the witnesses as to facts, did not estab- 
lish the truth of those facts. It was their province alone 
to judge of the credibility of their statements respectively, 
whether they be experts or not, on questions of science, or 
witnesses in regard to facts. And it was within their pro- 
vince to accept and believe as true, or to reject and disbelieve 
as untrue, the testimony of any of the witnesses in this case.” 
The judge also charged them that there were no facts or 
circumstances in the case tending to show any less grade of 
homicide than that charged in the indictment, and their ver- 
dict must either be guilty of murder in the first degree or not 
guilty. The defence admitted the killing, and set up the plea 
of insanity. 
At the request of the counsel for the defence, the judge gave 
the following instructions as a part of the law applicable to 
the case:— 
“If the defendant was deprived of his reason at the time 
the act alleged against him was committed, resulting either 
from an inherited taint or from the pressure and overpower- 
ing weight of the dangerous circumstances which he believed 
to be surrounding his wife, he is legally irresponsible for what 
he did. 
“If the jury believe from the evidence, that, at the time the 
(q) See report in Missouri Republican of April 14, 1872. 
165 § 181] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
defendant shot deceased, the defendant was laboring under the 
belief that Munson Beach and his wife, or either of them, were 
endeavoring to separate him, the defendant, from his wife, and 
that this belief had so wrought upon his mind as to render 
him insane and incapable of knowing that his act of killing 
was criminal, then he is not responsible for such act, and the 
jury should acquit him on the ground of insanity. 
“If the jury believe from the evidence that at the time of the 
shooting defendant was so insane as not to be capable of know- 
ing that the act was criminal, the jury should acquit him on 
the ground of insanity. It is not necessary that the defence 
of insanity be established beyond a reasonable doubt. It is 
sufficient if the jury is reasonably satisfied, by the weight or 
preponderance of the evidence, that the defendant was insane 
at the time of the commission of the act. 
“ In determining the question of the defendant’s guilt or inno- 
cence, the jury should consider all the facts and circumstances 
as proved in evidence, and, unless they are satisfied of the de- 
fendant’s guilt beyond a reasonable doubt, they are bound to 
acquit him. 
“To establish insanity, positive evidence is not necessary, but 
it may be proved by circumstances, like other facts in the case.” 
§ 181. On one point the above charge is open to exception. 
A murder committed during the continuance of a violent ex- 
citement is not necessarily, as has been argued elsewhere,(r) 
murder in the first degree, no matter how long may have been 
the premeditation. The question is one of “cooling time.” 
Cooling time varies with circumstances—with the extent and 
depth of the provocation, but, above all, with the character of 
the actor himself; or, even if there be cooling time, it may be 
that the actor’s mind may be in such a state as to preclude him 
from forming a specific intent to take life. This view was 
maintained by a very able jurist, Judge King, in trying the 
Philadelphia rioters of 1846 ;(s) it being maintained by him 
that ignorant persons of weak mind, laboring under great 
political and nervous excitement, or overcome by nervous 
(r) See supra, § 122 ; infra, § 200. 
(s) See Wk. on Horni., Appendix, Daley’s case ; 2 Wli. Cr. L. § 1107. 
166 BOOK I.] 
MORAL INSANITY. 
[§ 182 
terror, might well be viewed by the jury as remaining under 
the influences of those passions for a much longer period than 
cool business men, over whom such passions maintain at the 
best only a transient momentary sway. By Judge Rogers, of 
the Supreme Court of Pennsylvania, in trying others of 
these cases, the same view was taken, though on reasoning 
slightly varied.(t) This line of argument applies a fortiori to 
persons of insane predisposition, and who, without being 
actually deranged, are liable, when under great excitement, to 
fall into abnormal states of long duration, in which states the 
mind, though conscious of the difference between right and 
wrong, is incapable of measuring the immediateness and the 
intensity of a danger to which it is exposed, or the proper 
means to be taken to avert or counteract such danger. In 
such cases, where homicide results from such a state of mind, 
murder in the second degree or manslaughter is the proper 
verdict; and, if this view be taken, far more satisfactory and 
consistent results, in the trials of such issues, will be reached. 
If a jury, in such cases, is narrowed to a choice between con- 
viction of murder in the first degree and acquittal, the public 
sense of justice is, whatever may be the issue, shocked. 
§ 182. But these objections apply solely to that portion of 
the charge which we have just noticed. So far as concerns 
the points just made by the defendant’s counsel in respect to 
insanity, and then accepted by the court, we find the law 
stated with a moderation which shows that the bar, in a case 
wisely tried, is as averse as is the bench to the introduction of 
terms by which the range of insanity would be indefinitely 
enlarged. In one passage “ insanity,” and “ deprived of his 
reason,” are made convertible; in another, the test given is 
that the defendant should be “ incapable of knowing that his 
act of killing was criminal.” The defendant was acquitted; 
and as to the rightfulness of the verdict we have nothing to 
say. It is enough for the present purpose to cite the charge 
of the court, on the particular point of insane irresponsibility, 
as sustaining the views which have been vindicated in the 
text. 
(0 Wh. Cr. L. § 1108. 
167 §184] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
§ 183. Irresponsibility from a supposed moral derangement, 
unaccompanied with mental insanity, is a defence on which, 
at the risk of repetition, it is important to dwell with some 
minuteness. It is to he met with in three ways: first, psycho- 
logically, by showing, as will hereafter be done,(w) that by 
sound psychological analysis such a position is untenable; 
secondly, practically, by proving that a careful induction 
gives us no basis of fact on which such a theory can be sup- 
ported ;(V) and, thirdly, juridically,^1) by showing that the 
position is repudiated by the courts, and that, on the prin- 
ciples of philosophic jurisprudence, it cannot safely be main- 
tained. 
§ 184. On the last point, as above stated, a few observations 
may now be made. 
First, as to the consistency of this doctrine with the safety 
of the community, which is one of the prime objects of all 
penal law. 
In the mediaeval jurisprudence, the clergy were exempted 
from the operation of the secular law. Great evils resulted 
from this; the authority of the civil arm was weakened, and 
the clergy themselves were demoralized. But for this posi- 
tion, monstrous as it was, there was some faint excuse at 
the time it was introduced. The clergy, it was said, were 
good men, and they were subject to ecclesiastical discipline 
which was prompt, exhaustive, and severe. But the propo- 
sition now is to exempt from the operation of penal law a 
class of men whose plea for this distinction is that they are 
eminently bad, and that there is no other discipline to which 
they can be subjected. If they are mentally insane—if they 
are destitute of reason—then there is good ground for penal 
irresponsibility. But if they are not mentally insane—if they 
are possessed of reason—if their only plea is their excessive 
badness—then this badness will be intensified, and rendered 
all the more turbulent and desperate by the very intellectual 
sanity which it is conceded that the actors possess, and 
which will readily instruct them that they are privileged by 
(U) Infra, §§ 533-539. (*>) Infra, §§ 552-572. 
O') See supra, § 163, for a particular enumeration of tlie adjudicated cases. 
168 BOOK I.] 
[§ 185 
MORAL INSANITY. 
the state to plunge irresponsibly into any excesses they may 
desire. If they were destitute of reason, their irresponsibility 
would be a less grievance. They would be like the savage to 
whom powder is given, but who does not know how to con- 
trive means for using it to destroy others. But, being pos- 
sessed of reason, they are able to use their irresponsibility as 
an immunity for every crime. And what is to be done with 
them ? Confinement in a lunatic asylum, is the answer. But 
such confinement is difficult, (1) from the skill with which 
reason can create counter-proof, and can, when there is an 
object for it, suppress or conceal passion, and (2) from the 
enormous expense and trouble which would attend the incar- 
ceration of so large a number of patients as is here supposed. 
But can such persons be justly, on this hypothesis, incarce- 
rated? How does incarceration differ from imprisonment? 
And what is imprisonment but punishment ? And what 
would such punishment be but a penal discipline imposed 
compulsorily by the law ? The difference between such penal 
discipline, and that which the law now applies on conviction 
of a crime, is simply, that in the first case the offender is tried 
for being generally bad; in the second, he is tried for a spe- 
cific bad act. But he cannot be tried for being generally bad, 
unless he is responsible. We are therefore reduced to the 
dilemma either of allowing such persons to roam at large, or 
of confining them, which assumes their responsibility. 
§ 185. Again, it is the duty of the state to require, on the 
part of all persons endowed with reason, the exercise, under 
penal discipline, of such reason, in all matters which concern 
the safety and health of the body politic. The state, in this 
respect, is a delicate machine, over whose mechanism every 
rational man has more or less control. It may seem hard, to 
adopt the analogy of a railroad, to make it an indictable 
offence for a brakeman simply to fall asleep at his post, or for 
the acting superintendent of a great corporation not to con- 
struct a time-table sufficiently lucid and accurate to prevent 
possible collisions. It may seem a hard thing to shoot an 
admiral of acknowledged bravery for indecision in action, or 
to cashier and imprison an engineer for a slight miscalculation 
169 §185] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
as to the thickness of an iron plate. Yet we all feel the 
necessity of such hardness for the purpose of educating men 
at large in the exercise of all their faculties when in the dis- 
charge of public trusts. It is such discipline alone that makes 
railway travel practicable, and that prevents a nation’s life 
from being carelessly sacrificed in war. Reason, in such cases, 
is called forth, nerved, and pointed, by the penalty the law im- 
poses on its action. Law, in fact, can only thus educate reason 
and give it supremacy, by penalty. Law cannot, except in 
certain very rare cases, command a thing to be done. It can 
only punish when the thing is not done, or when a positive 
wrong is committed. Yor can it thus punish by precept, or 
by mere expression of disapprobation. It must punish, if it 
do so at all, by penal discipline; and this discipline, to have a 
moral effect, must be executed as announced. In other words, 
supremacy of reason over passion, on the part of all persons 
possessing such reason, is essential to the safety of the state; 
and the state is bound to educate its subjects to the exercise 
of their reason to this extent. It needs careful engineers, 
careful sailors, careful superintendents, and careful workmen; 
and, to create this carefulness, it must impose penalties on 
carelessness. A fortiori, therefore, if it needs, among those con- 
cerned with its machinery, the capacity to control passion by 
reason, must it impose penalties on the yielding of reason to 
passion. This subordination, among its subjects, it is one of 
the highest offices of the state to create; but its only direct 
process for this purpose, is by penal discipline. This may, in 
some cases, work hardly, as it may do in the cases of railway 
carelessness we have just noticed. But, in the one case as in 
the other, it is the idea of responsibility that must be implanted 
in each breast; and this can only be done by exacting responsi- 
bility among persons possessed with reason, as a general and 
absolute rule. And, in cases of hardship, it is well to keep in 
mind the following striking observations of Lord Brougham, 
when this topic was under examination in the House of Lords. 
“With respect to the point, of a person being an accountable 
being, that was, an accountable being to the law of the land, 
a great confusion had pervaded the minds of some persons 
whom he was indisposed to call reasoners, who considered ac- 
170 BOOK I.] 
MORAL INSANITY. 
[§ 186 
countability, in its moral sense, as mixing itself up with the 
only kind of accountableness with which they, as human legis- 
lators, had to do, or of which they could take cognizance. He 
could conceive of the case of a human being of a weakly con- 
stituted mind, who might, by long brooding over real or fancied 
wrongs, work up so perverted a feeling of hatred against an 
individual that danger might occur. He might not be deluded 
as to the actual existence of injuries he had received, but he 
might grievously and grossly exaggerate them, and they might 
so operate upon a weakly framed mind and intellect as to pro- 
duce crime. He could conceive that the Maker of that man, 
in His infinite mercy, having regard to the object of His 
creation, might deem him not an object for punishment. But 
that man was accountable to human tribunals in a totally 
different sense. Man punished crime for the purpose of prac- 
tically deterring others from offending by committing a re- 
petition of the like act. It was in that sense only that he 
had anything to do with the doctrine of accountable and not 
accountable. He could conceive a person whom the Deity 
might not deem accountable, but who might be perfectly 
accountable to human laws.”(w?) 
§ 186. Then, as to the effect of these views on the individual 
himself. If scrutinized carefully, the doctrine of the indisso- 
lubility of the connection between reason and responsibility, 
can give no ground of personal complaint. Even among “ moral 
lunatics,” there is no one of whom we can say that, in the earlier 
stages of his life, he might not have been taught self-control. 
It would be a most cruel thing for a parent to say to a young 
child, “ you are so bad that I will not try to reform you.” And 
it would be an equally cruel and destructive thing to say, “ for 
the wrong you do I will not correct you.’’(It?1) This would be 
the sure course to bring up an irreclaimable class of bad men. 
But, while it is one of the chief peculiarities of Christianity to 
teach that no sinners are irreclaimable, so it is one of the most 
merciful offices of government to say to all men that they can 
be reclaimed. To rational beings who are supposed to have 
(w) Hansard’s Pari. yol. lxvii. 728 ; see also supra, § 115. 
(w') See supra, §§ 115-118 ; infra, §§ 403, 539. 
171 §187] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
subordinated their reason to their passions, we can imagine 
no more humane counsel to be spoken than this: “There 
is no such thing as irresponsibility among those possessed of 
reason; you will certainly be punished if you break the law.” 
The doctrine, on the other hand, that irreclaimable guilt is 
irresponsible, is the sure way to make irreclaimable guilt. 
§ 187. And again, even assuming their responsibility, which 
on this hypothesis cannot be assumed, to imprison “ moral luna- 
tics” on the charge of being “ bad,” instead of making impri- 
sonment dependent on conviction for a specific crime, would be 
subversive of one of the primary features of Anglo-American 
jurisprudence. As an illustration of this we may mention the 
means proposed by Dr. Thomson, Surgeon to the General Prison 
for Scotland, whose argument in favor of distinctive moral 
insanity is elsewhere noticed. Feeling the embarrassment of 
holding that a class of “ moral lunatics,” such as he describes, 
should be emancipated from criminal discipline in its ordinary 
sense, he seeks to relieve himself by a proposal not unlike that 
adopted in Turkey when it is thought desirable to crush out 
a rival family. “Moral insanity,”he holds, is transmitted by 
sexual propagation; and hence “ moral lunatics,” or the incu- 
rably wicked, are to be kept from having children. But how ? 
By the Turkish method ? For this more summary and inex- 
pensive process, Dr. Thompson is not quite prepared. Another 
remedy, however, is preferable, imprisonment during puberty. 
“ Why,” he asks, “ should they go to prison for short periods 
only, to be sent out again in renovated health, to propagate a 
race so low in physical organization?” He afterwards proposes, 
for such cases, imprisonment for life. The latter, no doubt, is 
the only safe alternative, if we accept the doctrine of moral 
insanity. The dilemma, therefore, may be thus stated : if we 
accept the doctriue of moral insanity, we must imprison the 
“moral lunatics” for life, on charge of being generally bad ; if 
we reject this doctrine, we submit such persons to ordinary 
penal discipline. But the first alternative is both cruel and in- 
compatible with Anglo-American jurisprudence. We must 
therefore take the second.(A2) 
172 
(w>2) See infra, § 566a. BOOK I.] 
MORAL INSANITY. 
[§ 188 
§ 188. Nor, finally, can it be said that there are some men, 
who, while possessed of reason, are incapable of moral sense, 
and who are consequently to he withdrawn from the ordinary 
operations of penal discipline. We have already noticed the 
cruelty of this position to the persons thus described, and the 
repugnance of the mode of imprisonment it proposes to the 
principles of Anglo-American Jurisprudence. It is enough 
now to say that, where the state does not find a moral sense, it 
is its duty to create one. That there is, among rational beings, 
a moral sense always coexisting with reason, it is not neces- 
sary here to maintain ; and it may be enough, for this purpose, 
to refer to the impressive exposition of this view published by 
a great English thinker lately (1872) deceased.(rr) But, if we 
assume that there is no such moral sense, then comes in the 
position just noticed, that the moral sense which the state 
does not find it must createfx1) And that it is to be created, 
where it does not exist, by penal discipline, Mr. Bain, who 
holds the latter view, has demonstrated by a process so lucid 
and logical that it deserves the most careful judicial thought. 
“ I have given it as my deliberate opinion that authority or 
punishment is the commencement of that state of mind recog- 
nized under the various names of conscience, the moral sense, 
the sentiment of obligation. The major part of every community 
adopt certain rules of conduct necessary for the common preserva- 
tion or ministering to the common well-being. They find it not 
merely their interest, but the very condition of their existence, to 
observe a number of maxims of individual restraint, and of respect 
to one another's feelings on such points as person, property, and 
good name. Obedience must be spontaneous on the part of the 
larger number, or on those whose influence preponderates in 
the society; as regards the rest, compulsion must be brought to 
bear. Every one not of himself disposed to follow the rides pre- 
scribed by the community is subjected to some infliction of pain to 
supply the absence of other motives; the infliction increasing in 
severity until obedience is obtained. It is the familiarity with the 
(x) “The ConscienceLectures on Casuistry, Delivered in the University 
of Cambridge, by F. D. Maurice. 2d Edition, 1872. 
(a1) See also infra, § 486. 
173 §188] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
regime of compulsion and of suffering, constantly increasing until 
resistance is overborne, that plants in the infant and youthful mind 
the first germs of the sense of obligation. I know of no fact that 
would prove the existence of any such sentiment in the primi- 
tive cast of our mental constitution. An artificial system of 
controlling the actions is contrived, adapted to our volitional 
nature, the system of using pain to deter from particular sorts 
of conduct. A strong line of distinction is drawn in every 
human mind between actions that bring no pain except what 
arise out of themselves, as when we encounter a hitter taste or 
a scalding touch, and those actions that are accompanied with 
pains imposed by persons about us. These actions, and the 
circumstances attending them, make a deep and characteristic 
impression; we have a peculiar notion attaching to them, and 
to the individual persons the authors of the attendant pains. 
A strong ideal avoidance, not unmixed perhaps with the per- 
turbation of fear, is generated towards what is thus forbidden 
by penalties rising with transgression. The feeling drawn out 
towards those who administer the pain is also of the nature of dread, 
we term it usually the feeling of authority. From first to last this 
is the essential and defining quality of the conscience, although 
mixed up with other ingredients. As duty is circumscribed 
by punishment, so the sense of obligation has no other universal 
property, except the ideal and actual avoidance of conduct 
prohibited by penalties. This discipline indoctrinates the newly- 
introduced member of society with the sentiment of the forbidden, 
which by and by takes root and expands into the sentiment of moral 
disapprobation ; he thus joins with the other members of the com- 
munity in imposing and enforcing the prohibitions that have been 
stamped and branded in the course of his own education. Duty, 
then, may be said to have two prime supports in the more self- 
regarding parts of our nature—the sense of the common pres- 
ervation and well-being operating upon a preponderating 
majority, and the sense of punishment brought to bear upon 
individuals (who must he the smaller number) not sufficiently 
prompted by the other sentiment. Order being once estab- 
lished in a society, that is to say, the practice of obedience 
being habitual to the mass of the community, it is only neces- 
sary to apply a disciplinary process to the young to prepare 
174 BOOK I.] 
MORAL INSANITY. 
[§ 189 
them for the same acquiescence in the public morality. The 
imposition of penalties begets at once the sense and avoidance 
of the forbidden and the awe of authority, and this, as a general 
rule, is retained through life as the basis of the individual con- 
science, the foremost motive to abstain from actions designated 
as wrong. 
“ It is not implied that conscience is never anything else than 
the actual and ideal avoidance and dread of punishment. Other 
elements concur sometimes so largely as to obliterate in the 
view the primary germ and characteristic type of the faculty. 
There are motives that supersede the operation of punishment 
in a variety of instances; as when we contract a positive sen- 
timent of goodwill towards those whom the law forbids us to 
injure. Even then we do not lose the strong feeling implanted 
in us respecting the forbidden and the authoritative; we 
simply are no longer in the position of being moved by that 
alone. Our tender feelings, our sentiments of the fair, the 
equal, impel us as it were of our own accord to respect those 
interests of our fellow-beings that are protected by the enact- 
ments of society. Moreover, as already said, there is a certain 
maturity of the well-disposed mind at which we enter the 
company of the majority, spontaneous in its own obedience 
from a recognition of the common safety, and compelling the 
dissentient minorities by force or punishment. At this stage the 
conscience, which was at first derived or implanted, is now inde- 
pendent or self-sustaining. The judgment of the individual 
approves of the common prohibitions against falsehood, injustice, 
breach of bargains, and other injuries, as prohibitions essential to 
its own security, in company with the rest of the society, and con- 
science therefore passes into a higher grade of the prudential motive.” 
§ 189. ¥e may therefore afford to meet the advocates of 
“ moral insanity” on their own ground, and assume with them 
that there are cases in which there is no moral sense or con- 
science, and in which the individual so constituted is left to 
the control of his appetites and passions alone. And, if so, 
these are cases where a moral sense or conscience is to be 
created by the state. This can only be done by a system of 
general penal discipline, applicable to all persons endowed with 
reason. To except those whose moral sense is perverted or 
175 §191] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
extinct, is to except the very class for whose benefit, as wTell as 
for the safety of the community, the law is required.^2) 
(e1) While experts may be called to testify as to states 
OF MIND AND CONDITIONS OF HEALTH, IT IS FOR THE COURTS 
TO DECLARE WHETHER SUCH STATES AND CONDITIONS CONSTI- 
TUTE IRRESPONSIBILITY. 
§ 190. Such, as the preceding pages have indicated, has been 
the general Anglo-American practice. In 1870, however, in 
the Supreme Court of Hew Hampshire, a case(y) was decided 
by which this position was in some measure assailed. The de- 
fendant, Pike, was tried before Perley, C. J., and Doe, J., for 
murder in perpetrating robbery. One of the defences appears 
to have been “dipsomania,” and on the trial the court in- 
structed the jury that “whether there is such a mental disease 
as dipsomania, and whether defendant had that disease, and 
whether the killing of Brown was the product of such disease, 
were questions of fact for the jury.” 
§ 191. In the Supreme Court, this was affirmed, Smith, J., 
saying: “ This was correct. If there are any diseases whose 
existence is so much a matter of history and general knowledge 
that the court may properly assume it in charging a jury, dip- 
somania certainly does not fall within that class. The court 
do not profess to have the qualifications of medical experts. 
"Whether there is such a disease as dipsomania is a question of 
science and fact, not of law.” 
In an opinion, delivered in the same case, and supporting 
the same view, Doe, J., went still further: “Whether the old 
or the new medical theories are correct,” he says in the course 
of his argument, “ is a question of fact for the jury ; it is not 
the business of the court to know whether any of them are 
correct.” “It is often difficult to ascertain whether an indi- 
vidual had a mental disease, and whether an act was a product 
of that disease; hut these difficulties arise from the nature of 
the facts to he investigated, and not from the case; they are 
practical difficulties to be solved by the jury, and not legal 
(*2) See also supra, § 115 ; and infra, §§ 403, 566a. 
(y) State v. Pike, 49 N. H. 399. 
176 BOOK I.] 
AUTHORITY OF EXPERTS. 
[§ 191 
difficulties for the court.” “To say that the expert testifies 
to the tests of mental disease as a fact, and the judge declares 
the test of criminal responsibility as a rule of law, is only to 
state the dilemma in another form. For, if the alleged act of 
a defendant was the act of his mental disease, it was not in 
law his act, and he is no more responsible for it than he would 
be if it had been the act of his involuntary intoxication, or 
of another person using the defendant’s hand against his 
utmost resistance ; if the defendant’s knowledge is the test of 
responsibility in one of these cases, it is the test in all of them. 
If he does know the act to be wrong, he is equally irre- 
sponsible whether his will is overcome, and his hand used, by 
the irresistible power of his own mental disease, or by the 
irresistible power of another person. When disease is the 
propelling, uncontrollable power, the man is as innocent as the 
weapon—the mental and moral elements are as guiltless as the 
material. If his mental, moral, and bodily strength is sub- 
jugated and pressed to an involuntary service, it is immaterial 
whether it is done by his disease, or by another man, or a 
brute, or any physical force of art or nature set in operation 
without any fault on his part. If a man knowing the dif- 
ference between right and wrong, but deprived, by either of 
those agencies, of the power to choose between them, is 
punished, he is punished for his inability to make the choice 
—he is punished for incapacity ; and that is the very thing for 
which the law says he shall not be punished. He might as 
well be punished for an incapacity to distinguish right from 
wrong, as for an incapacity to resist a mental disease which 
forces upon him its choice of the wrong. Whether it is a 
possible condition in nature for a man knowing the wrong- 
fulness of an act to be rendered by mental disease incapable 
of choosing not to do it and of not doing it, and whether a 
defendant in a particular instance has been thus incapacitated, 
are obviously questions of fact. But, whether they are ques- 
tions of fact or of law, when an expert testifies that there may 
be such a condition, and that, upon personal examination, he 
thinks the defendant is, or was, in such a condition—that his 
disease has overcome, or suspended, or temporarily or perma- 
nently obliterated, liis capacity of choosing between a known 
VOL. i.—12 
177 178 
INSANITY AS A CRIMINAL DEFENCE. 
[book 1. 
right and a known wrong—and the judge says that knowledge 
is the test of capacity, the judge flatly contradicts the expert. 
Either the expert testifies to law, or the judge testifies to fact. 
From this dilemma, the authorities afford no escape. 
“ The whole difficulty is, that courts have undertaken to de- 
clare that to be law which is a matter of fact. The principles 
of the law were maintained at the trial of the present case, 
when, experts having testified as usual that neither knowledge 
nor delusion is the test, the court instructed the jury that all 
tests of mental disease are purely matters of fact, and that, 
if the homicide was the offspring or product of mental disease 
in the defendant, he was not guilty by reason of insanity.”^) 
(z) In justice to the learned judge by whom the above opinion was given, 
the whole of his argument on this point is appended. It will well repay study, 
as much for its learning and argumentative power as for the novelty of the 
positions it advances. That these positions are erroneous, it is attempted in 
the text to demonstrate. It is but fair, however, that they should be here 
expanded in the language in which they are expressed in the court by which 
they were pronounced. 
“ The defendant’s exception to the instructions given to the jury in relation 
to his responsibility as affected by dipsomania, raises the general question of 
the legal tests of insanity ; for, if the instructions given upon dipsomania are 
correct, they would be correct when given upon any other alleged form of 
insanity. 
“ If knowledge of right and wrong, or delusion, is the test in other alleged 
forms of insanity, knowledge and delusion must be the test in alleged dipso- 
mania. The correctness of all the instructions given on the tests of mental 
disease, is involved in the exception taken by the defendant. 
“This was the first instance in which such instructions were ever given; 
but they are an application of ancient and fundamental principles of the com- 
mon law. A product of mental disease is not a contract, a will, or a crime; 
and the tests of mental disease are matters of fact. Boardman v. Woodman, 
47 N. H. 147-150. Tried by the standard of legal precedent, the instructions 
are wrong; tried by the standard of legal principle, they are right. We 
have come to a point where we can plainly see that the paths of precedent 
and principle diverge, and where we must choose between them. In making 
our choice there are various considerations which weaken the attraction of 
precedent. 
“A striking and conspicuous want of success has attended the efforts made 
to adjust the legal relations of mental disease. In regard to the validity of a 
contract as affected by insanity, the authorities have been conflicting and 
vacillating. Littleton says, ‘ No man of full age shall be received in any 
plea by the law to disable his own person.’ Co. Lit. 246, b. Coke says, 
‘ There have been four several opinions concerning the alienation or other 
act of a man that is nail compos mentis, etc. For, first, some are of opinion, 
178 BOOK I.] 
[§ 192 
AUTHORITY OF EXPERTS. 
§ 192. Is, then, responsibility a question of fact, to be de- 
termined by the jury on the testimony of experts? Is the 
that he may avoid his own act by entry or plea. Secondly, others are of 
opinion, that he may avoid it by writ, and not by plea. Thirdly, others, that 
he may avoid it either by plea or by writ; and of this opinion is Fitzherbert 
in his Natura Brevium. * * * And Littleton here is of opinion, that 
neither by plea, nor by writ, nor otherwise, he himself shall avoid it, but his 
heir * * * shall avoid it by entry, plea, or writ. And herewith the 
greatest authorities of our books agree ; and so it was resolved with Littleton 
in Beverly’s case, where it is said, that it is a maxim of the common law, 
that the party shall not disable himself.’ Co. Lit. 247, b. ‘By the law of 
England no man shall avoid his own act by reason of these defects. ’ 1 Hale 
P. C. 29. Blackstone says, ‘The king indeed, on behalf of an idiot, may 
avoid his grants or other acts. But it hath been said that a non compos him- 
self * * * shall not be permitted to allege his own insanity in order to 
avoid such grant: for that no man shall be allowed to stultify himself, or 
plead his own disability. The progress of this notion is somewhat curious.’ 
Blackstone gives its history, showing that it did not prevail in the time of 
Edward I. ; that ‘ under Edward III. a scruple began to arise whether a man 
should be permitted to blemish himself by pleading his own insanity; and 
afterwards’ it was doubted whether a plaintiff who had executed a release 
since the commencement of his suit, and who was taken to be sane at its 
commencement and at the time of pleading, should be permitted to plead an 
intermediate deprivation of reason existing at the execution of the release, 
‘ and the question was asked how he came to remember the release if out of 
his senses when he gave it. Under Henry YI. this way of reasoning * * * 
was seriously adopted by the judges, * * * and from these loose authorities, 
which Fitzherbert does not scruple to reject as being contrary to reason, the 
maxim that a man shall not stultify himself hath been handed down as 
settled law.’ 2 Bl. Com. 291, 292. 
“In 1767, Lord Mansfield stated the law thus: ‘It hath been said to be “a 
maxim that no man can plead his being a lunatic to avoid a deed executed, 
or excuse an act done at that time, because” it is said “if he was a lunatic he 
could not remember any action he did during the period of his insanity.” 
And this was doctrine formerly laid down by some judges ; but I am glad to 
find that of late it hath been generally exploded ; for the reason assigned for 
it is, in my opinion, wholly insufficient to support it; because, though he 
could not remember what passed during his insanity, yet he might justly say, 
if he ever executed such a deed, or did such an action, it must have been 
during his confinement or lunacy ; for he did not do it either before or since 
that time. As to the case in which a man’s plea of insanity was actually set 
aside, it was nothing more than this : It was when they pleaded ore tenus; 
the man pleaded that he was at the time out of his senses. It was replied, 
How do you know that you were out of your senses ? No man that is so, 
knows himself to be so. And accordingly his plea was, upon this quibble, set 
aside; not because it was not a valid one if he was out of his senses, but 
179 § 192] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
judge, on issues of insanity, to leave the whole question, in- 
cluding that of responsibility, to experts to decide, telling the 
because they concluded he was not out of his senses.’ Chamberlain of 
London v. Evans, 5 Bl. Com. App. 149 (Am. ed. 1773). ‘ The party him- 
self may set up as a defence, and in avoidance of the contract, that he was 
non compoa month when it was alleged to have been made. The principle 
advanced by Littleton and Coke, that a man shall not be heard to stultify 
himself, has been properly exploded as being manifestly absurd and against 
natural justice.’ 2 Kent Com. 451. ‘Yet, clear as this doctrine appears in 
common sense and common justice, it lias met with a sturdy opposition from 
the common lawyers, who have insisted (as has been justly remarked, in 
defiance of natural justice and the universal practice of all the civilized 
nations in the world) that, according to a known maxim of the common law, 
no man of full age should be admitted to disable or stultify himself. * * * 
How so absurd and mischievous a maxim could have found its -way into any 
system of jurisprudence professing to act upon civilized beings, is a matter of 
wonder and humiliation. There have been many struggles against it by emi- 
nent lawyers in all ages of the common law ; but it is, perhaps, somewhat 
difficult to resist the authorities, which assert its establishment in the funda- 
mentals of the common law ; a circumstance which may well abate the boast 
so often and so rashly made that the common law is the perfection of human 
reason.’ Story Eq. § 225. 
“It seems to have been finally considered, in this and other jurisdictions, 
that a man might avoid a contract on the ground of his insanity, in all cases, 
excepting perhaps a contract for necessaries. Lang v. Wliidden, 2 N. H. 
435, 438; Burke ®. Allen, 29 N. H. 106 ; Seaver v. Phelps, 11 Pick. 304; 
Gibson v. Soper, 6 Gray, 279. But it is now held that he is estopped to avoid 
a contract made in good faith, unless he restores the other party to his pre- 
vious position, or makes compensation. Molton v. Camroux, 2 W. H. & G. 
487; S. C., 4 W. H. & G. 17; Young v. Stevens, 48 N. H. 133 ; 1 Parsons 
Con. 383-386 (5th ed.). This result places the contracts of insane persons 
and minors, to a considerable extent, on the same ground. Carr v. Clough, 
26 N. II. 280 ; Heath v. West, 28 N. H. 101; Lincoln v. Buckmaster, 32 Vt, 
652; 2 Gr. Ev. § 369, 370. 
“ The English law, in proceedings for guardianship, has been confused and 
unsettled. 13 Law Magazine and L. Review, 122. 
“In relation to the burden of proof on the question of insanity in criminal 
cases, the English and nearly all the American authorities have been mani- 
festly wrong. The uniform rule in England and the general rule in this 
country, has been that the burden was on the defendant to prove sanity 
either beyond reasonable doubt, or by a preponderance of evidence. In 
King v. Arnold, 16 St. Tr. 695, 764, Mr. Justice Tracy said to the jury, 
‘ the shooting my lord Onslow, which is the fact for which the prisoner is 
indicted, is proved beyond all manner of contradiction; but W'hether this 
shooting was malicious, that depends upon the sanity of the man. ’ One of 
the most important judicial encroachments upon the province of the jury, in 
180 BOOK I.] 
AUTHORIITY OF EXPERTS. 
181 
jury that they are to accept the experts’ rendering? Is, in 
other words, the “ test of criminal responsibility” a matter of 
England, has always been the inference of malice declared by the court as a 
legal presumption. The legal idea of malice includes the idea of sanity ; and 
the legal presumption of malice threw the burden of proving insanity on the 
defendant. This has always been understood, in England, as distinctly as 
it was by Erskine, when he said in King v. Hadfield, 27 St. Tr. 1314, 1318, 
‘ I must convince you that the unhappy prisoner was a lunatic. * * * * 
.The whole proof therefore is undoubtedly cast upon me and by Mr. Baron 
Martin, when he charged the jury, in Queen v. Townley, Ann. Reg. 1863, 
part 2, p. 308, ‘ unless they were satisfied—and it was for the prisoner to 
make it out—that he did not know the consequences of his act, or that it was 
against the law of God and man, and would subject him to punishment, he 
was guilty of murder.’ This great error was corrected in State v. Bartlett, 
43 N. H. 224—a case most revolutionary in precedent, but most conservative 
in principle. 
“In testamentary cases, tried by a probate court without a jury, the court 
necessarily decides the fact as well as the law. In Stewart v. Lispenard, 26 
Wend. 255, Blanchard v. Nestle, 3 Denio, 37, and Clarke v. Sawyer, 2 Comst. 
498, it was held that mental imbecility is not testamentary incapacity unless 
it amounts to a total absence of reason ; but this test was abandoned in Dela- 
field v. Parish, 25 N. Y. 11. In 1826, an English judge of probate decided 
in Dew v. Clark, 3 Addams, 79, that, as a matter of fact proved by the medi- 
cal authorities of his day, delusion wms the test of insanity. Boardman v. 
Woodman, 47 N. H. 148, 149. The courts of this country inadvertently 
adopted in testamentary cases, as a rule of law, the. test of delusion which the 
English judge of probate had found as a matter of fact. And this mistake 
greatly increased the difficulty of extricating the subject from the embarrass- 
ments and obscurities which beset it. In 1867, it was supposed that the 
American doctrine of testamentary capacity was firmly established on the 
English probate foundation of fact mistaken here for a basis of law, when 
suddenly even that foundation was destroyed by the English probate court. 
“In Smith & a. v. Tebbitt & a., Law Rep. 1 P. & D. 398, Sir J. P. Wilde 
said, ‘ What is to be the proof of disease ? What is to be the test, if there be 
a test, of morbid mental action ? “The existence of mental delusions,” it 
would perhaps be answered. But this only postpones the question, in place 
of answering it. For what is a mental delusion ? How is it to be defined so 
as to constitute a test universally applicable of mental disorder or disease ? 
The word is not a very fortunate one. In common parlance a man may 
be said to be under a delusion when he only labors under a mistake. The 
delusion intended is, of course, something very different. To say that a 
morbid or an insane delusion is meant, is to beg the question. For the 
delusion to be sought is to be the test of insanity ; and to say that an insane 
or morbid delusion is the test of insanity or disease, does not advance the 
inquiry. “A belief of facts which no rational person would have believed,” 
says Sir John Niclioll. “ No rational person.” This too appears open to a 
181 §192] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
fact, to be deposed to by experts, and found by the jury on 
their testimony ? Such are the questions that are involved in 
the positions just stated, and which are now to be discussed. 
like objection, for what are the limits of a rational man’s belief? And to say 
that a belief exceeds them, is only to say that it is irrational or insane. “ The 
belief of things as realities which exist only in the imagination of the patient,” 
says Lord Broughman in Waring v. Waring, 6 Moo. P. C. 354. But surely 
sane people often imagine things to exist which have no existence in reality 
both in the physical and moral world. What else gives rise to unfounded 
fears, unjust suspicions, baseless hopes, or romantic dreams ? I turn to 
another definition. It is by Dr. Willis, a man of great eminence, and is 
quoted by Sir John Nicholl in Dew v. Clark. “A pertinacious adherence to 
some delusive idea in opposition to plain evidence of its falsity.” This seems 
to offer a surer ground : but then the “evidence” of the falsity is to be “plain,” 
and who shall say if it be so or not ? In many or most cases it would be easy 
enough. Those who have entertained the delusive idea that their bodies 
were made of glass or their legs of butter (as it may be found in medical 
works that some have done), certainly have plain evidence at hand—the 
evidence of their senses—of its falsity. But what if the delusive idea concern 
a subject in which the senses play no part, and the plain evidence by which 
it is to be discharged is matter of reasoning and addressed to the intellectual 
faculty ? Will all sane men agree whether the evidence is plain or not ? And, 
if not, shall one man in all cases pronounce another a monomaniac when the 
evidence is plain, to his reason, of the falsity of the other’s ideas ? 
“ ‘ I find no fault with the language of these definitions as fairly and properly 
describing the mental phenomena they are used to depict. I only assert that 
the existence of mental delusion thus defined, is not capable of being erected 
into an universal test of mental disease. It is no doubt true that mental 
disease is always accompanied by the exhibition of thoughts and ideas that 
are false and unfounded, and may therefore be properly called delusive. 
But what I mean to convey on this head is this, that the question of insanity 
and the question of “delusions” is really one and the same—that the only delu- 
sions which prove insanity are insane delusions—and that the broad inquiry 
into mental health or disease cannot in all cases be either narrowed or 
determined by any previous or substituted inquiry into the existence of what 
are called delusions. I say in all cases, for in some such as those to which 
I have already alluded, where the delusive idea ought to receive its condem- 
nation and expulsion at once from the simple action of the senses, the contrary 
is the case; and the same may be said of delusions obviously opposed to the 
simple, ordinary, and universal action of reason in healthy minds. These are 
the simple cases about which no one would doubt, and in them the proof of 
the delusions is also the proof of insanity without more. But what is to be 
said of the more complicated cases ? What if the diseased action of the mind 
does not exhibit itself on the surface, as it were, opposing its hallucinations to 
the common senses or reasons of all mankind, but can be tracked only in the 
recesses of abstract thought or religious speculation—regions in which the 
182 BOOK I.] 
AUTHORITY OF EXPERTS. 
[§ 193 
§ 193. It is conceded by the learned judge who delivered 
the opinion which has last been quoted, and which maintains 
mental action of the sane produces no common result—and all is question and 
conflict ? In what form of words could a delusion be defined which would 
be a positive test of insanity in such cases as these ? In none, I conceive, but 
“ insane delusions,” or words of the like import, which carry with them the 
whole breadth of the general inquiry. How, then, is this question of insanity 
to be approached by a legal tribunal ? What tests are to be applied for disease ? 
What limits assigned within which extravagance of thought is to be pro- 
nounced compatible with mental health ? The decided cases offer no light on 
these heads. I nowffiere find any attempt to devise such tests, or assign such 
limits. Nor do I conceive that any tests, however elaborate, beyond the 
common and ordinary method of judging in such matters, would be compe- 
tent to bear the strain of individual cases in the course of experience.’ 
“ The judge held it to be the duty of the court 4 to inform itself, as far as 
opportunity permits, of the general results of medical observation,’ and he 
quoted Dr. Ray, Dr. Prichard, and Dr. Esquirol. If the American law of 
insanity is to be that which the English probate court holds, from time to 
time, to be a matter of fact depending upon 4 the general results of medical 
observation,’ and the progress of medical science, we have no assurance that 
this branch of our law will be more stable hereafter than it has been hereto- 
fore. 
44 The attempt to establish a legal test of mental disease lias been as unsuc- 
cessful in criminal as in testamentary cases. In England, from 1826 to 1867 
delusion was applied as the test in the latter ; but it was not adopted in the 
former ; and it was not shown how it happened that what was an infallible 
test of mental disease in a man when he disinherited his child, was no test of 
mental disease in him when he deprived his child of life. 
44 It has been held wdtliin one hundred and fifty years that the test in crimi- 
nal cases is whether the defendant was totally deprived of his understanding 
and memory and did not know what he was doing any more than a wild 
beast. King v. Arnold, 16 St. Tr. 695, 765. This was the original form of 
the knowledge test. In 1800 the attorney-general of England declared that 
this test had never been contradicted, but had always been adopted. King v. 
Hadfield, 27 St. Tr. 1288. Erskine, in the same case, said : 41 will employ 
no artifices of speech. * * * The attorney-general, standing undoubtedly 
upon the most revered authorities of the law, has laid it dowm, that to protect 
a man from criminal responsibility, there must be a total deprivation of 
memory and understanding. I admit, that this is the very expression used 
both by Lord Coke and Lord Hale ; but the true interpretation of it deserves 
the utmost attention and consideration of the court. * * * Delusion, 
therefore, where there is no frenzy or raving madness, is the true character 
of insanity. * * * I really think, however, that the attorney-general and 
myself do not, in substance, very materially differ. * * * In contemplat- 
ing the law of the country and the precedents of its justice to which they 
must be applied, I find nothing to challenge or question. I approve of them 
183 184 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
the affirmative of the points just stated, that the views he 
advances are in conflict with the great body of Anglo-Ameri- 
thoroughout; I subscribe to all that is written by Lord Hale ; I agree with 
all the authorities cited by the attorney-general from Lord Coke.’ Id. 1309, 
1312, 1314, 1318, 1324. The effort of Erskine was made with such ‘artifices 
of speech,’ that the court seem to have been mystified. When Lord Kenyon, 
satisfied that the defendant was insane, stopped the trial, and ordered a ver- 
dict of acquittal, his remark, that, ‘ with regard to the law as it has been laid 
down, there can be no doubt upon earth,’ apparently meant as it had been 
laid down by the attorney-general and by Erskine. He seems not to have 
understood that the ancient test was questioned ; and yet, tried by that test, 
Hadfield must have been convicted. Hadfield’s acquittal was not a judicial 
adoption of delusion as the test in the place of knowledge of right and wrong 
(9 C. & P. 546) ; it was probably an instance of the bewildering effect of 
Erskine’s adroitness, rhetoric, and eloquence. 
“The common instincts of humanity have abandoned the original ‘wild- 
beast’ form of the knowledge test, only to adopt others equally arbitrary, 
though less shocking to the intelligence and sensibility of the age. Knowl- 
edge of right and wrong, in some degree, with more or less of explanation 
and variation, has always been, in theory, the test of criminal capacity in 
England, and generally in this country: the English courts have never 
recognized delusion as the test. They have noticed delusion only so far as it 
destroyed the knowledge of right and wrong; which is the same as an 
explicit rejection of it as a test. If knowledge of right and wrong is the test, 
it is immaterial whether that knowledge be destroyed by disease assuming 
the form of delusion, or any other form. 
“It is matter of history that insanity has been, for the most part, a growth 
of the modern state of society. Like many other diseases, it is caused, in a 
great degree, by the habits and incidents of civilized life. In the earlier and 
ruder ages, it was comparatively rare. Its present extent has been chiefly 
attained within a few hundred years. Until recently, there were no asylums 
for the insane, and no experts devoting their lives exclusively to the practical 
study and treatment of the disease. The necessary opportunities for obtain- 
ing a thorough understanding of it did not exist until they were furnished by 
the positions of superintendents of asylums and their assistants. Conse- 
quently, until recently, there was very little knowledge of the subject. 
“ In old books it is often found under the head of lunacy. Lord Hale was 
the first writer who undertook to introduce into a law book any considerable 
statement of the facts of mental disease. 1 Hale P. C. 29-32. Not only 
was he guided by the best medical authorities of his day, but he carefully 
used the language of medical men. Among other current medical ideas 
which he recorded, was this: the insanity ‘ which is interpolated, and by 
certain periods and vicissitudes,’ ‘is that which is usually called lunacy, 
for the moon hath a great influence in all diseases of the brain, especially 
in this kind of dementia ; such persons commonly, in the full and change of 
the moon, especially about the equinoxes and summer solstice, are usually in 
184 BOOK I.] 
AUTHORITY OF EXPERTS. 
[§ 193 
can decisions on the same topic. This, in fact, will be abun- 
dantly verified by an inspection of the preceding pages, where 
the height of their distemper;’ and ‘such persons as have their lucid inter- 
vals (which ordinarily happen between the full and change of the moon) 
in such intervals have usually at least a competent use of reason. ’ He did 
not imagine that this medical lunar theory was a principle of the common 
law. Lord Erskine, in delivering judgment in Cranmer's case (12 Yes. 445, 
451), said ‘the moon has no influence;’ and the reporter inserted this mar- 
ginal note, 4 In cases of lunacy, the notion, that the moon has an influence, 
erroneous.’ The reporter may not have distinguished between law and fact; 
but Erskine did not suppose that he was announcing his disagreement with 
Hale on the point of law. 
“ The other causes, symptoms, and tests of mental disease recorded by Hale, 
were as clear matters of fact as the lunar theory. When he put them in his 
History of the Pleas of the Crown, he merely followed the line of the custom, 
that had been pursued by him and all other English judges, of giving to the 
jury their opinions of the facts of the cases tried before them. Ante, 416, 417. 
In his History of the Common Law, he says of trial by jury, 4 Another ex- 
cellency of this trial is this, that the judge is always present at the time of 
the evidence given in it. Herein he is able, in matters of law emerging upon 
the evidence, to direct them; and also, in matters of fact, to give them a 
great light and assistance, by his weighing the evidence before them, and ob- 
serving where the question and knot of the business lie ; and by showing them 
his opinion even in matters of fact, which is a great advantage and light to 
laymen.’ 2 Hale’s Hist. Com. L. 147. 
44 In King v. Cullender and Duny, 6 St. Tr. 700, there is an instance of the 
positive manner in which judges were accustomed to give their opinions to 
the jury on matters of fact. In that case, the defendants were tried before 
Hale for witchcraft; and he instructed the jury as follows : ‘That there were 
such creatures as witches he made no doubt at all; for, first, the Scriptures 
had affirmed so much. Secondly, the wisdom of all nations had provided 
laws against such persons, which is an argument of their confidence of such 
a crime.’ The jury found a verdict of guilty ; the judge was fully satisfied 
with the verdict, and upon his sentence the defendants were executed. The 
doctrines of insanity and witchcraft stated by Lord Hale were held by him 
in common with the most enlightened classes of the most civilized nations. 
He was not their author, nor was he responsible for them. They were equally 
doctrines of fact; one was no more a matter of law than the other ; and they 
are equally entitled to oblivion, although the ancient doctrine of insanity 
outlived the ancient doctrine of witchcraft. 
44 When we remember that the universal belief in witchcraft has been over- 
come within two hundred years, it is easy to understand how the phenomena 
of insanity were long regarded as supernatural. Witchcraft and demoniacal 
possession were accepted as truths taught by miraculous inspiration. Cases 
of insanity were found answering the biblical description of cases of demo- 
niacal possession ; but the suggestion that any of the latter might be cases of 
185 [book i. 
186 
INSANITY AS A CRIMINAL DEFENCE. 
the course of English and American judicial precedent in this 
relation is exhibited. It is proposed now to pass the question 
mental or physical disease was received as an attack upon the infallibility of 
the Scriptures. This state of things discouraged investigation, and encouraged 
the belief that insanity, at least in some of its forms, was demoniacal posses- 
sion. The natural causes and operations of cerebral disease were mysterious ; 
the theological clouds that encompassed it were appalling. 
“In a period of ignorance, credulity, superstition, and religious terrorism, 
before there was a science of medicine, we should not expect to find any 
scientific or accurate understanding of such a malady. Well might the 
boldest shrink from the exploration of a condition believed to be, in its 
origin, beyond the bounds of nature, and curable only by the power of 
exorcism. 
“As the ancient theory of diabolism gradually passed away, insanity was 
still attributed to special providences, and not to the operation of the general 
laws of health. The sufferers were treated for wickedness rather than sick- 
ness. Among men of science, the investigation of the subject is now disen- 
cumbered of all theological complications. But this is a modern emancipation 
not yet realized by the mass of even the most enlightened communities. Very 
few persons have an adequate conception of the fact that insanity is a disease. 
The common notion of it is of something not merely marvellous, but also 
peculiarly, vaguely, and indescribably connected with a higher or lower 
world. The insane are generally considered as more than sick; and, if they 
are not spoken of as possessed, their condition, to the popular apprehension, 
is still enveloped in a supernatual shadow. The Lord Chancellor of England 
declared, in the House of Lords, on the 11th day of March, 1862, that ‘the 
introduction of medical opinions and medical theories into this subject has 
proceeded upon the vicious principle of considering insanity as a disease.’ 
Hansard, clxv, 1297. This remark indicates how slowly legal superstitions 
are worn out, and how dogmatically the highest legal authorities of this age 
maintain, as law, tests of insanity, which are medical theories differing from 
those rejected by the same authorities only in being the obsolete theories of 
a progressive science. 
“ It was for a long time supposed that men, however insane, if they knew 
an act to be wrong, could refrain from doing it. But whether that suppo- 
sition is correct or not, is a pure question of fact. The supposition is a suppo- 
sition of fact—in other words, a medical supposition—in other words, a 
medical theory. Whether it originated in the medical or any other profession, 
or in the general notions of mankind, is immaterial. It is as medical in its 
nature, as the opposite theory. The knowledge test in all its forms, and the 
delusion test, are medical theories introduced in immature stages of science, 
in the dim light of earlier times, and subsequently, upon more extensive ob- 
servations and more critical examinations, repudiated by the medical profes- 
sion. But legal tribunals have claimed those tests as immutable principles of 
law, and have fancied they were abundantly vindicated by a sweeping denun- 
186 BOOK I.] 
AUTHORITY OF EXPERTS. 
[§ 193 
of authority, therefore, as one that does not admit of dispute, 
and to adduce some general reasons to show why, so far from 
ciation of medical theories—unconscious that this aggressive defence was an 
irresistible assault upon their own position. 
“ When the authorities of the common law began to deal with insanity, they 
adopted the prevailing medical theories. The distinction between the duty 
of the court to decide questions of law, and the duty of the jury to decide 
questions of fact, was not appreciated and observed as it now is in this state. 
In criminal cases, the jury might decide the law as well as the fact (Pierce v. 
The State, 13 N. H. 536 ; Quincy Mass. Reports, 558-572) ; in civil and crimi- 
nal cases, the court gave to the jury their opinion of the facts as well as of 
the law (ante, 416, 417), and the difference between a question of fact and a 
question of law was generally of little or no practical importance. When 
new trials had not come into use (3 Bl. Com. 405 ; Witham v. Lewis, 1 Wills. 
55 ; Quincy Mass. Reports, 558 ; Hilliard on New Trials, ch. 1, §§ 2, 3) ; when 
prisoners were not allowed the assistance of counsel in relation to matters of 
fact (4 Bl. Com. 355; 11 St. Tr. 476; 19 St. Tr. 944) ; and juries were pun- 
ished at the discretion of the court, for finding their verdict contrary to the 
direction of the judge (4 Bl. Com. 361) ; the sphere of the court was latitu- 
dinarian. The judicial practice of directing or advising juries in matters of 
fact has never been discontinued in England. And this practice has carried 
into reports and treatises, on various branches of the law, many opinions of 
mere matters of fact. Without any conspicuous or material partition between 
law and fact, without a plain demarcation between a circumscribed province 
of the court and an independent province of the jury, the judges gave to 
juries, on questions of insanity, the best opinions which the times afforded. 
In this manner, opinions purely medical and pathological in their character, 
relating entirely to questions of fact, and full of error as medical experts 
now testify, passed into books of law, and acquired the force of judicial deci- 
sions. Defective medical theories usurped the position of common law 
principles. 
“ The usurpation, when detected, should cease. The manifest imposture of 
an extinct medical theory pretending to be legal authority, cannot appeal for 
support to our reason or even to our sympathy. The proverbial reverence 
for precedent does not readily yield; but, when it comes to be understood 
that a precedent is medicine and not law, the reverence in which it is held 
will, in the course of time, subside. 
“The legal profession, in profound ignorance of mental disease, have assailed 
the superintendents of asylums, who knew all that was known on the subject, 
and to whom the world owes an incalculable debt, as visionary theorists and 
sentimental philosophers attempting to overturn settled principles of law; 
whereas, in fact, the legal profession were invading the province of medicine, 
and attempting to install old exploded medical theories in the place of facts 
established in the progress of scientific knowledge. The invading party will 
escape from a false position when it withdraws into its own territory; and 
the administration of justice will avoid discredit when the controversy is thus 
187 § 193] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
accepting the positions which have been so ably maintained 
by the New Hampshire judges, we must reaffirm the view 
brought to an end. Whether the old or the new medical theories are correct, 
is a question of fact for the jury ; it is not the business of the court to know 
whether any of them are correct. The law does not change with every ad- 
vance of science nor does it maintain a fantastic consistency by adhering to 
medical mistakes which science has corrected. The legal principle, however 
much it may formerly have been obscured by pathological darkness and con- 
fusion of law and fact, is, that a product of mental disease is not a contract, a 
will, or a crime. It is often difficult to ascertain whether an individual had a 
mental disease, and whether an act was the product of that disease ; but these 
difficulties arise from the nature of the facts to be investigated, and not from 
the law ; they are practical difficulties to be solved by the jury, and not legal 
difficulties for the court. 
“ If our precedents practically established old medical theories which science 
has rejected, and absolutely rejected those which science has established, 
they might at least claim the merit of formal consistency. But the precedents 
require the jury to be instructed in the new medical theories by experts, and 
in the old medical theories by the judge. 
“ In Queen v. Oxford, tried in 1840, Dr. Chowne testified that he considered 
doing an act without a motive a proof, to some extent, of an unsound mind ; 
that one kind of insanity has been well described by the term ‘lesion of the 
willthat it is sometimes called moral insanity ; that patients are often im- 
pelled to commit suicide without any motive ; that this state of mind is not 
incompatible with an acuteness of mind and an ability to attend to the ordi- 
nary affairs of life. Ann. Reg. 1840, part 2, p. 262. Lord Denman instructed 
the jury, that, if some controlling disease was, in truth, the acting power 
within the defendant, which he could not resist, he was not responsible, and 
that knowledge was the test. 9 C. & P. 545, 546. 
“ In Queen v. M’Naughten, tried in 1848, Dr. Monro testified that an insane 
person may commit murder and yet be aware of the consequences; that 
lunatics often manifest a high degree of cleverness and ingenuity, and exhibit 
occasionally great cunning in escaping from the consequences of such acts ; 
that he considered a person laboring under a morbid delusion to be of 
unsound mind ; that insanity may exist without any morbid delusion ; that 
a person may be of unsound mind, and yet be able to manage the usual affairs 
of life ; that insanity may exist with a moral perception of right and wrong, 
and that this is very common. Eight experts gave their opinions going to 
show that the defendant had committed the act in question under the influence 
of a morbid delusion which deprived him of the power of self-control. Their 
testimony, in substance, was, that the defendant was insane, and that knowl- 
edge of right and wrong was not the test. The medical testimony was so 
strong that the court stopped the trial, and substantially directed the jury to 
acquit the defendant, but Ch. J. Tindal instructed the jury that knowledge 
was the test. It does not appear how the defendant could be acquitted by 
that test. Ann. Reg. 1843, part 2, pp. 35, 359. 
“In Queen v. Pate, tried in 1850, Dr. Conolly testified, ‘I have conversed 
188 BOOK I.] 
AUTHORITY OF EXPERTS. 
[§ 193 
already announced—that, while experts may be called to testify 
as to states of mind and conditions of health, it is for the 
with the prisoner since this transaction, and in my opinion he is a person of 
unsound mind. I am not aware that he suffers from any particular delusion. 
He is well aware that he has done wrong, and regrets it.’ Dr. Monro testified, 
‘ I have had five interviews with Mr. Pate since this transaction, and, from 
my own observation, I believe him to be of unsound mind. I agree with Dr. 
Conolly that he is not laboring under any specific delusion. I think he may 
have known very well what he was doing, and have known that it was very 
wrong; hut it frequently happens with persons of diseased mind that they 
will perversely do what they know to be wrong.’ Mr. Baron Alderson 
instructed the jury that knowledge was the test. 
“In Queen v. Townley, tried in 1863, Dr. Winslow testified, ‘I think that 
at this present moment he is a man of deranged intellect. He was deranged 
on the 18th of November, and I thought still more so last night when I saw 
him the second time.’ The witness was asked, ‘If the present state of 
mental derangement existed on the 21st of August, would it be likely to lead 
to the commission of the act then committed ?’ His answer was, ‘ Most un- 
doubtedly. Assuming him to have been on the 21st of August as he was on 
the 18tli of November and yesterday, I do not believe that he was in a con- 
dition of mind to estimate, like a sane man, the nature of his act and his 
legal liability.’ The witness further testified, ‘He does not appear to have 
a sane opinion on a moral point. I have no doubt he knows that these 
opinions of his are contrary to those generally entertained, and that if acted 
upon they would subject him to punishment. I should think he would know 
that killing a person was contrary to law, and wrong in that sense. I should 
think that, from his saying he should be hanged, he knew he had done wrong.’ 
Dr. Gisborne testified, that ‘the prisoner’s language implied that he knew 
that what he had done was punishable, but that he (the witness) believed he 
would repeat the offence to-morrow.’ Mr. Baron Martin instructed the jury 
that knowledge was the test. 
“ In these cases, the testimony of the experts negatived the idea that knowl- 
edge of right and wrong is the test. And the admission of this evidence, 
coupled with the rule given by the court to the jury that knowledge is the 
test, brought the law into conflict with itself. Either the experts testified on 
a question of law, or the court testified on a question of fact. The conflict 
was only rendered a little more palpable in People v. Huntington, tried in New 
York in 1856. Experts testified, as they have long testified in England and 
elsewhere, that a man without delusion may be irresponsible by reason of 
insanity, for an act which he knows to be a crime, the consequences of which 
he understands. One expert testified that he defined insanity as a disease of 
the brain by which the freedom of the will is impaired, and that almost all 
insane people know right from wrong. The knowledge test of insanity, as 
laid down by the English judges in their opinions given to the House of Lords 
in what is called M’Naughten’s case, 1 C. & K. 131, was read by counsel to 
the experts; the experts were directly asked their opinion of that test, and 
they testified that they did not agree with the English judges on that subject. 
189 190 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
court to declare whether such states and conditions constitute 
irresponsibility. 
The same knowledge test, as laid down by the Supreme Court of New York 
(Freeman v. People, 4 Denio, 28), was read to one of the experts, and the 
same kind of testimony was repeated. The court instructed the jury that 
knowledge was the test. Report of the Trial of People v. Huntington, 257, 
260, 261, 263, 268, 269, 270, 271, 447. 
“ In Com. v. Rogers, one expert testified that insane persons generally know 
the distinction between right and wrong. The opinion of three experts was, 
that the defendant was insane; that his reason had been overborne by delusion, 
and an insane and irresistible impulse or paroxysm. In coming to the last 
conclusion, it does not appear that they were guided by the knowledge test; 
and, upon their testimony, it would seem, that, in their opinion, knowledge 
was not the test. The court instructed the jury that knowledge was the test. 
In the application of that test to the evidence, the court adopted the language 
of the experts in relation to delusion and impulse, intending apparently to use 
delusion and impulse not as a substitute for the knowledge test, or as a modi- 
fication of it, but as an illustration of a process by which the knowledge of 
the wrongfulness of the act might be suddenly removed. The jury were 
unable to understand the law in the form in which it was stated in the instruc- 
tions, and, after considering the question of sanity some time, they came into 
court, and asked what degree of insanity would amount to a justification ; but 
the court added nothing to the instructions previously given. Report of the 
Trial of Com. v. Rogers, 149-166, 276-278, 281 ; S. C., 7 Met. 500. 
“ It is the common practice for experts, under the oath of a witness, to inform 
the jury, in substance, that knowledge is not the test, and for the judge, not 
under the oath of a witness, to inform the jury that knowledge is the test. 
And the situation is still more impressive when the judge is forced by an im- 
pulse of humanity, as he often is, to substantially advise the jury to acquit the 
accused on the testimony of the experts, in violation of the test asserted by 
himself. The predicament is one which cannot be prolonged after it is 
realized. If the tests of insanity are matters of law, the practice of allowing 
experts to testify what they are, should be discontinued ; if they are matters 
of fact, the judge should no longer testify without being sworn as a witness 
and showing himself qualified to testify as an expert. 
“ To say that the expert testifies to the tests of mental disease as a fact, and 
the judge declares the test of criminal responsibility as a rule of law, is only 
to state the dilemma in another form. For, if the alleged act of a defendant 
was the act of his mental disease, it was not in law his act, and he is no 
more responsible for it than he would be if it had been the act of his involun- 
tary intoxication, or of another person using the defendant’s hand against his 
utmost resistance ; if the defendant’s knowledge is the test of responsibility 
in one of these cases, it is the test in all of them. If he does know the act 
to be wrong, he is equally irresponsible whether his will is overcome, and his 
hand used, by the irresistible power of his own mental disease, or by the irre- 
sistible power of another person. When disease is the propelling, uncon- 
trollable power, the man is as innocent as the weapon—the mental and moral 
190 BOOK I.] 
AUTHORITY OF EXPERTS. 
[§ 194 
§ 194. First, let it be remembered that American common 
law courts have no process for the collection of the opinions of 
elements are as guiltless as the material. If his mental, moral, and bodily 
strength is subjugated and pressed to an involuntary service, it is immaterial 
whether it is done by his disease, or by another man, or a brute, or any phy- 
sical force of art or nature set in operation without any fault on his part. If 
a man, knowing the difference between right and wrong, but deprived, by 
either of those agencies, of the power to choose between them, is punished, 
he is punished for his inability to make the choice—he is punished for incapa- 
city ; and that is the very thing for which the law says he shall not be punished. 
He might as well be punished for an incapacity to distinguish right from wrong, 
as for an incapacity to resist a mental disease which forces upon him its choice 
of the wrong. Whether it is a possible condition in nature for a man, know- 
ing the wrongfulness of an act, to be rendered by mental disease incapable of 
choosing not to do it and of not doing it, and whether a defendant in a par- 
ticular instance has been thus incapacitated, are obviously questions of fact. 
But, whether they are questions of fact or of law, when an expert testifies 
that there may be such a condition, and that, upon personal examination, he 
thinks the defendant is, or was, in such a condition—that his disease has 
overcome, or suspended, or temporarily or permanently obliterated, his capacity 
of choosing between a known right and a known wrong—and the judge says 
that knowledge is the test of capacity, the judge flatly contradicts the expert. 
Either the expert testifies to law, or the judge testifies to fact. From this 
dilemma, the authorities afford no escape. 
“The whole difficulty is, that courts have undertaken to declare that to be 
law which is a matter of fact. The principles of the law were maintained at 
the trial of the present case, when, experts having testified as usual that 
neither knowledge nor delusion is the test, the court instructed the jury that 
all tests of mental disease are purely matters of fact, and that, if the homicide 
was the offspring or product of mental disease in the defendant, he was not 
guilty by reason of insanity.” 
In State v. Jones, decided in the same court in 1871, we have these views 
thus in part affirmed by Judge Ladd :— 
“These instructions have now been twice given to the jury in capital cases 
in this State; first by the very learned ex-Cliief Justice Perley in State v. Pike, 
and now again by Mr. Justice Doe in the case before us. 
“In State v. Pike no exceptions were taken to this part of the charge, and 
the questions here raised were not before the whole court for judicial determi- 
nation, although they were printed in the case as transferred, and no objection 
to their form is understood to have been made. 
“ But a question was passed upon in that case, which, carried to its logical 
results, goes far towards settling most of the questions raised upon the instruc- 
tions here. It was claimed that the defendant was irresponsible by reason 
of a species of insanity called dipsomania. The court instructed the jury, 
that ‘ Whether there is such a mental disease as dipsomania, and whether 
the defendant had that disease, and whether the killing of Brown was the 
191 192 
[book i. 
INSANITY AS A CRIMINAL DEFENCE. 
experts on litigated questions of criminal responsibility. A 
case comes on to be tried in one of our criminal courts. In 
product of sucli disease, were questions of fact for the jury.’ These instruc- 
tions were specially excepted to by the defendant, and were held correct. 
This would seem to be entirely inconsistent with the idea that either delusion 
or knowledge of right and wrong is, as matter of law, a test of criminal 
capacity ; and would also seem to be about equivalent to holding in general 
terms that it was for the jury to say whether the killing was the product of 
mental disease, and return their verdict of ‘ guilty’ or * not guilty by reason 
of insanity,’ as they found the facts to be. 
“We should be slow to establish any doctrine, on this important subject, 
which we could see would be likely to result in the escape of malefactors 
from punishment, or afford encouragement to a fictitious defence of insanity; 
and no considerations of convenience or ease in the administration of the law, 
as before observed, should be allowed to weigh at all against adhering to any 
doctrine, or any course of practice, that rests upon sound reason, or that 
appears to be necessary for the attainment of right results, whether such doc- 
trine or practice is supported by uniform authority or not. 
“ Still, it is no objection to the course of the judges who tried this case, and 
who tried Pike’s case, that it relieves the subject of some of its most formi- 
dable difficulties, so far as the court is concerned, and at the same time fur- 
nishes at least one clear and explicit direction which the jury can understand. 
“ No untried or doubtful theory is adopted ; the instruction given was always 
law, and always must be law, while justice is administered upon principles 
at all consonant with the calls of civilization and humanity. 
“ The only objection is, that the court did not go further, and undertake to 
explore a region where all is doubt, uncertainty, and confusion upon the 
authorities, and where upon principle they had no right to go at all; that 
they did not undertake to lay down a rule where, if we could allow ourselves 
to investigate the fact, we should probably find there is and can be no rule, 
nor to enunciate as law a pure matter of fact which can only be absolutely 
known to the Almighty. 
“I may add, that it confirms me in the belief that we are right, or at least 
have taken a step in the right direction, to know that the view embodied in 
this charge meets the approval of men who, from great experience in the 
treatment of the insane, as well as careful and long study of the phenomena 
of mental disease, are infinitely better qualified to judge in the matter than 
any court or lawyer can be. See Pay’s Med. Jurisprudence, 5th ed. § 44. 
“The satisfaction with which the charge in State v. Pike is understood to 
have been received by the most enlightened members of the medical pro- 
fession, proves to my mind not that we have thrown down old landmarks 
to adopt any theory based on a partial, imperfect, or visionary view of the 
subject, but that, in a matter where we must inevitably rely to a great extent 
upon the facts of science, we have consented to receive those facts, as de- 
veloped and ascertained by the researches and observations of our own day, 
instead of adhering blindty to dogmas which were accepted as facts of science 
192 BOOK I.] 
AUTHORITY OF EXPERTS. 
[§ 194 
tlie great majority of our jurisdictions, there is no law by 
which a commission can issue to take the deposition of wit- 
nesses out of the reach of local process. Even in those juris- 
dictions where such a law exists, there is no reported case of 
a witness, residing at a distance, being examined by deposi- 
tion. Indeed, even where this is technically legal, the step is 
one which parties would be very unlikely to take. An expert, 
in order to give an opinion to which the jury will attach 
weight, must visit the patient personally. Hence it is that 
practically, in seeking for experts, the parties are limited to 
those whom they can produce on trial. Of course, when 
there is wealth, or when the State makes, as it very rarely 
does, suitable provision, experts may he brought from a dis- 
tance. But, whether brought from a distance or taken from 
the immediate neighborhood, they are open to the very serious 
objection that they are unofficial persons selected by the party 
calling them, because their preascertained views will serve 
that party’s necessities.^1) For we have in none of our States 
governmental hoards of experts, chosen as independent arbi- 
ters, on the same basis as our courts of law. Hence it is, that 
the experts, whose testimony the jury are to take, are simply 
voluntary theorists. So far as concerns the defendant, they 
are called by him because, from their opinions already ad- 
vanced, their views favor his defence. It is by the defence, 
indeed, that testimony of experts, in issues of insanity, is 
mainly produced. It is natural that it should be so, for not 
and erroneously promulgated as principles of law fifty or a hundred years 
ago. 
“ The last instruction, that the defendant was to be acquitted on the ground 
of insanity, unless the jury were satisfied beyond a reasonable doubt that the 
killing was not produced by mental disease, was in accordance with State v. 
Bartlett, 43 N. H. 224, and was correct.” 
This is stated with much lucid ability, and relieves the question of the em- 
barrassing issue as to experts with which it was complicated in State v. Pike. 
In this, its simpler and later aspect, the topic has been already discussed. 
Supra, § 109, etc. It is unnecessary here to do more than repeat the conclu- 
sions there reached, that to give the whole subject to the jury, with instruc- 
tions “to acquit if the act was the product of mental disease,” is, ably and 
fairly as the argument is here presented, as repugnant to philosophical juris- 
prudence as it is to judicial precedent. 
(s1) See infra, § 295. 
yol. i.—13 
193 § 195] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
only is the burden of proof on the defence, but the interest 
the defendant has at stake is so enormous, that his whole 
energies, and his entire estate, as well as the full professional 
nerve and pride of his counsel, will be exhausted in bringing 
his case fully before the court. Just so far as the prosecution 
takes an interest in the case—just so far as it believes in the 
baselessness of the defence—is it liable to be influenced by the 
same zeal. But there is here a difference between the position 
of the defence and that of the prosecution. The defence springs 
its witnesses, if not its particular point of reliance, on the pro- 
secution. The prosecution has generally to reply, as best it can, 
with any testimony which, at the moment and spot, it can 
catch up. 
§ 195. But, be this as it may, each party has certain theories 
to be proved, and each party looks around for experts to prove 
such theories. Now, it so happens, that there is scarcely a 
single hypothesis as to responsibility, no matter how wild, 
which, among the large number of experts who have con- 
cerned themselves with this branch of study, has not its advo- 
cates. Some particular hypothesis is a convenient one for the 
emergencies of the case, and consequently the expert who 
believes it, is sought out and summoned. But he, and the 
few, as it may be, who agree with him, are summoned alone. 
The great mass of experts, embracing ninety-nine hundredths 
of the entire body, are left uncalled. There is undoubtedly 
one good physical reason for this. No court-room, though as 
large as the Roman amphitheatre, could hold all those who 
on this topic have fair claims to be considered experts. No 
state treasury would attempt the expense of their mainte- 
nance and remuneration during the very protracted investiga- 
tions that would ensue. No court would ha.ve time for such 
trials; and, indeed, it would be impossible to tell how long 
such a suit would continue. No humane government would 
permit a course which, by thus confining all the experts of 
the land (even if we stopped here) in one spot, for an indefi- 
nite period, would leave their innumerable patients and wards 
for so long a time without guidance. But, independently of 
this objection, reason enough for a narrow selection is found 
194 BOOK I.] 
AUTHORITY OF EXPERTS. 
[§ 196 
in the fact that each party calls only the experts that will 
prove his case, and no more.(a) 
§ 196. How, how has this practically resulted ? We believe 
that the reports of our criminal trials show that there is not 
a case in which it was necessary to rely on some extravagant 
and unique psychological theory to make out a defence, in 
which such theory was not sustained by experts. Thus, in a re- 
markable Kentucky case, hereafter to be more fully noticed,(a1) 
it was testified by experts, and apparently without contradic- 
tion, that all persons committing suicide are insane, and that 
consequently (a conclusion in which fortunately the court did 
not coincide), the exception of suicide in life-insurance policies 
is a nullity. So in the case of Arthur O’Connor, who was 
tried in London, in April, 1872, for an assault on the Queen, 
Dr. Tuke testified to the prisoner’s insanity, because he had 
no sense of his situation, and because he “argued in a circle,” 
which facts were declared by an opposite medical expert to 
prove just the contrary, while Dr. Sheppard, Professor of 
Psychological Medicine in King’s College, and head of the 
Colney Hatch Asylum, announced, in an article in the Lancet, 
that Dr. Tuke’s position was “monstrous.” So also in An- 
drews’ case,(b) where the defence was mania travisitoria, one 
physician (a gentleman highly respectable, but standing almost 
alone in this respect) was brought to testify to the psycho- 
logical soundness of the defence; while the prosecution limited 
itself to but one expert in reply, though it could have found 
a thousand to indorse what that expert said. So in the case 
now immediately before us, “dipsomania” is spoken of as 
proved by medical experts; and it is said to be the law that 
if these experts declare that there is such a disease as “ dipso- 
mania,” and that “ dipsomania” confers irresponsibility, then 
the defendant is irresponsible.(b1) But what experts? Who 
(a) That this fact is admitted and deplored by high medical authority, as 
fully as by legal, will be abundantly hereafter illustrated. See infra, §§ 275, 
283, 293. 
(o') St. Louis Mutual Insurance Co. v. Graves, 6 Bush, 644; infra, § 236. 
(5) Supra, § 162. 
(&1) The unsoundnesg of the hypothesis of “dipsomania” will be here- 
after shown, infra, § 639. 
195 §197] 
INSANITY AS A CRIMINAL DEFENCE. 
[book r. 
are to declare this? Those selected by the defendant out of 
that small knot of psychological physicians who hold to this 
theory ? And is the court to be bound by the views of those 
experts, supposing the prosecution declines to reply, or replies 
imperfectly ? Is the judge to shut his eye to the fact, that by 
almost all modern psychologists—by all the governmental for- 
ensico-legal experts of Germany, by whom such great breadth 
and ability of diagnosis is exhibited, and by whom such 
unparalleled patience and compass of induction exercised—by 
at least a preponderating weight of opinion among English 
and American alienists—the theory of distinct moral mono- 
mania, the mind remaining sane, is not only repudiated but 
denounced ? But how is this fact to he shown ? The prosecu- 
tion has not means or time, even if it has the desire, to bring 
these eminent men to the witness-stand. There is no process 
in other words, in which the true sense of experts, taking 
them as a body, can be obtained. The test, therefore, is one 
which, from the inadequacy of our judicial machinery, we can- 
not apply, (/j2) 
§ 197. But, again, even supposing experts of conflicting 
views could be fairly and liberally summoned, so as to give 
the jury the full renditions of science on the questions in liti- 
gation, there is no court of experts, who can harmonize antag- 
onistic views, and give to the jury in a concrete shape a posi- 
tive and final judgment. In legal practice, from the fact that 
in each State there is a final court of appeal, this difficulty is 
obviated. We all know what the law is; or, if we do not, we 
have the means, in each litigated case, of ascertaining such 
law. And in this certainty, at least as much as in the wisdom 
of the opinions promulgated, lies our safety. Take, for instance, 
to repeat a prior illustration, the question of moral insanity. 
If moral insanity be established by the courts, then the legis- 
lature can take measures to have all persons “ morally insane” 
placed in insane asylums, so that no injury to the community 
can ensue from their running at large. Or, if the courts hold 
that “ moral insanity” is not a defence, then persons of this 
class will be held responsible penally for their misdoings, or 
(52) See infra, § 295. 
196 BOOK I.] 
[§ 198 
AUTHORITY OF EXPERTS. 
placed under bonds to keep the peace. But if the rule is to be 
laid down by experts called freshly in each particular case, 
with no court of appeal, it will be impossible to have any 
settled law. The experts selected in one case will prove 
entirely a different law from the experts selected in another 
case. For instance, in those cases in which the state takes the 
prosecution in its own hands, and calls, as is the practice in 
some jurisdictions, men of high station as psychologists, the 
testimony will be that there is no such thing as either mono- 
mania or “moral insanity” as a distinct insane affection. On 
the other hand, in a case in which the defendant’s mental 
sanity is indisputable, and his life may depend on his proving 
that “ moral insanity” is a good defence, experts who hold to 
“ moral insanity” are called to prove it exists; and “ moral in- 
sanity” is so far established. From neither of these decisions 
is there any appeal. There is no mode of harmonizing them. 
Nor is it possible to tell what the future may bring forth, 
except that each party will call such experts as are most favor- 
able to his views. Now, to speak of the opinions of such 
special experts as the opinions of experts in general, and 
declare it to constitute the rule of insanity, is about as reason- 
able as it would be to speak of the arguments of counsel 
employed to argue on a series of isolated cases, as constituting 
the law of the land. The fact is there is no settled and final 
opinion of experts, to supply the test which is here invoked, 
because there is no final court by whom conflicts among experts 
can be reconciled, and a settled law pronounced. 
§ 198. But, after all, we must next observe that the proposed 
submission of the test to experts for decision is an illusion, for 
the court will have to explain what it is that the experts say. 
No court can abdicate its functions of weighing testimony 
and of declaring what testimony means. It is, indeed, a funda- 
mental maxim of the law that witnesses are not to be counted, 
but weighed. Let us take, as illustrating this necessity, the 
celebrated 'Windham case, elsewhere more fully noticed.(c) A 
petition of lunacy was taken out against Mr. Windham, his 
nearest relatives being the petitioners. His course was shown to 
(c) See supra, § 106. 
197 §199] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
have been since his boyhood—at the time of the inquisition he 
was not much older than twenty-one—one of reckless and imbe- 
cile profligacy; and some of the most eminent experts, called 
for the petitioners, declared that he was wanting in capacity to 
manage his own affairs. But the testimony thus produced 
was overborne, as to numbers, by a mass of other experts, 
who, on examination far more superficial, and on tests far 
less thorough, pronounced for the respondent’s competency.^1) 
Of course in such cases there was but one course open to the 
master in lunacy by whom the inquisition was held. His duty 
was to say where the weight of the testimony was, and by 
what tests it was to be proved. So it must always be in cases 
of conflict of evidence. Yet to declare, supposing the testi- 
mony of experts to be “law,” where the weight of this 
testimony lies, is really to declare what the law itself is.(c2) 
§ 199. Yor can harmony be by any other course adjusted 
between civil and criminal law. In many classes of probate 
cases, the question of a testator’s sanity is taken from the jury 
and determined exclusively by the court. In all civil issues, 
this is forced by demurrers either to the pleading or to the 
evidence. Even on jury trials, the legal relations of the testi- 
mony of experts can be removed, by bills of exceptions, or by 
appeal, to the superior court. To declare that in criminal cases 
such questions are solely for the jury, guided by experts, would 
be to introduce not merely clashing of courts, but failure of 
justice. A man would be sane by one class of proceedings, and 
be insane by another. After being declared responsible by an 
inquisition of lunacy, he might be declared irresponsible by a 
jury on an indictment for crime; and thus would he be too 
irresponsible to be punished as a criminal, and yet not irrespon- 
sible enough to be placed in an insane asylum. Or, under the 
direction of experts of opposite views, a man who, in a civil 
(c1) Similar cases have occurred in the United States. See Winter’s Case, 
reported in 27 Am. Journ. of Ins. 47, and Com. v. Haskell, 2 Brewster, 505, 
in which J udge Brewster said: “If we look at the medical testimony, we find 
an even balance of numbers. Doctors Jones, Butler, Harbeson, and Berkey, 
on the one side, and Doctors Morton, Groves, Seltzer, and Childs, on the 
other, present a diversity of professional opinions. This is not unusual.” 
(c2) See more fully, as to weight to be attached to testimony of experts, 
infra, § 293. 
198 BOOK I.] 
AUTHORITY OF EXPERTS. 
199 
court would be held insane, might be convicted by a jury as 
sane, without any right, on the hypothesis here combated, of 
appealing to the court for redress. 
§ 199a. But, finally, we must fall back on the position already 
fully argued, that the question of irresponsibility is one that 
cannot, consistently with public justice, be surrendered by the 
courts. Responsibility is a judicial question. It is of the high- 
est grade. It touches the most cherished prerogatives of citizen 
and state.(cZ) It involves in its criminal relations two topics, 
both of which are in the range of j uridical philosophy, and both 
of which should be decided, in each case that arises, by officers 
of the state, appointed by the state, bound by fixed rules, and 
advised, before they decide, by counsel who will present both 
sides of the question at large. One of these topics is the rela- 
tion of responsibility to reason, and here arises the principle, 
heretofore discussed on grounds purely j uridical,(e) that where- 
ever there is reason there is responsibility. The other topic is 
that of the divisibility of the Ego into distinct factors, one of 
which can become insane while the other is sane; and in this 
is involved the position, hereafter to be vindicated,(/) that 
there is no such thing as moral insanity coexistent with men- 
tal sanity. These points are not to be finally adjudicated by 
experts, who are neither appointed by the state so as to be inde- 
pendent of party choice, nor are selected from their general 
judicial fitness, nor are bound by precedent, nor are advised, 
before they come to a decision, by counsel presenting fully both 
sides. Experts are no doubt to give facts, though their explora- 
tions of facts should not be made without notice to the oppo- 
site side. But questions of high philosophical jurisprudence 
such as these, bearing as they do most closely on the liberty of 
the citizen and the safety of the state, should be decided by 
judges, who, appointed by the state, independent of the parties, 
and advised by counsel, remember that their decision is to be 
part of a harmonious and equal system of public law, and that 
for their rendering of it they are responsible to the state from 
which their appointment proceeds. 
(.d) See on this point Mr. Bain’s striking argument, supra, § 188, and 
infra, § 299. 
(e) See supra, §§ 110,185-188. (/) Infra, §§ 533-572. 
199 §200] 
INSANITY AS A CRIMINAL DEFENCE. 
[rook i. 
(Z1) Predisposition to insanity as lowering the grade op 
guilt. 
§ 200. It has already been abundantly shown that there are 
conditions of mind in which actual insanity cannot be said to 
have set in, but in which there are insane predispositions 
tending to either undue mental exaltation, or undue mental 
depression.(y) A psychical condition, inherited, it may he, or 
the result of some physical cause, makes the patient inca- 
pable, when excited, of due deliberation, renders it difficult 
for him to cool, or disturbs his mind when it comes to act on 
the question of intent. Such a man, for instance, in an ex- 
citement which this psychical state makes far more intense and 
protracted than it would be among persons of ordinary mental 
health, kills another. Is he to be acquitted ? Certainly not, 
for he cannot, on any sound principles psychological or legal 
be declared insane. Is he to be convicted of murder in the 
first degree, and hung ? This, were the defendant a person of 
healthy and normal temperament, would be perhaps the nat- 
ural sequence of the trial, should it appear that the homicide 
was deliberately executed. But, suppose the case of a man 
who, from insane predisposition, instead of cooling down after 
the first flush of hot blood, falls into a state of morbid excite- 
ment continuing and perhaps growing for weeks. Is such a 
man to be judged, as to a homicide committed during such 
excitement, by the same rules as apply to a person whose pas- 
sions have had time to subside ? In other words, are “ cooling 
time,” and “ intent” and “ premeditation,” to be gauged by 
the capacity of the ideal rational man, or that of the person 
under trial ? That the latter view should be taken,—that we 
should determine these questions according to the capacity of 
the defendant himself, has been already incidentally argued, and 
may be confirmed by many analogies of penal jurisprudence. 
In this way do we judge those conceptions of danger which 
justify a party in resorting to violent means of self-defence ;(A) 
so do we determine responsibility in cases of sleep-drunken- 
(SO Supra, § 181. 
(7i) Supra, §§ 125-145. 
200 BOOK I.] 
[§ 200a 
CAPACITY OF INSANE DEFENDANTS TO PLEAD. 
ness and somnambulism; so do we estimate the conduct of 
persons when roused by any great political or religious excite- 
ment ;(z) and so wTe hold in cases of intoxication, when called 
upon to measure deliberation and intent.(y) If, in cases where 
homicide has been committed during an excitement which the 
defendant’s peculiar psychical state has abnormally protracted 
and intensified, a verdict of murder in the second degree, or 
of manslaughter, is given in accordance with these views, a 
result is reached which is not only in accord with sound 
principle, but is far more consistent with the public idea of 
justice that would be a verdict either of not guilty, or of mur- 
der in the first degree.(T) This, in fact, is, under the North 
German code, the established law in Germany. That it is 
recommended by high medical authority, will be hereafter 
seen.(U) Mr. Stephens lends his valuable authority to the 
same view.(/c2) “ Partial insanity,” he says, “ may be evidence 
to disprove the presence of the kind of malice required hy the law 
to constitute the particular crime of which the prisoner is accused. 
A man is tried for wounding with intent to murder. It is 
proved that he inflicted the wound under a delusion that he 
was breaking a jar. The intent to murder is disproved, and 
the prisoner must be acquitted; but if he would have had no 
right to break the supposed jar, he might be convicted of an 
unlawful and malicious wounding.” 
(g1) Capacity op insane defendants to plead. 
§ 200a. By statutes existing in England, and in several of 
the United States, it is competent for the defendant’s counsel 
to formally plead insanity, as a special preliminary defence, 
in which case an inquest is taken to determine the issue, “ sane 
or insane.”(7) Where a jury is impanelled to try whether a 
(*) Supra, § 181; Wharton’s C. L. § 1107. 
(j) See infra, §§ 211-214, and see particularly Roberts v. People, 19 
Mich. 401, infra, §211. 
(k) See, in illustration of this, McGregor’s case, reported and commented 
on in 23 Am. Jour. Ins. 549. 
(A:1) Infra, § 770, note (*), for some excellent remarks of Dr. Winslow to 
this point. 
(k2) Criminal Law of England. London, 1863, p. 92. 
(Z) See R. v. Good, 7 A. & E. 536 ; R. v. Dwerryhouse, 2 Cox, C. C. 446. 
201 § 2006] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
prisoner is insane or not at the time when he is brought up to 
plead to an indictment, the counsel for the prosecution is to 
begin and call his witnesses to prove the sanity of the pri- 
But, where a jury is impanelled, at the instance of 
the counsel for a prisoner, to try whether he was insane or not 
at the time of the commission of the offence, the proof of the 
insanity is incumbent on his counsel.[n) 
§ 2006. Where the defendant from insanity is incapable of 
pleading, the court will disregard his plea of guilty, or any 
confessions of guilt he may offer. And even his protestations 
of “ sanity” will be disregarded, if there be adequate proof that 
he is insane.(o) The defence of insanity may be taken by his 
counsel against his will, though he may be personally allowed 
to call witnesses to disprove it.(p) 
Confessions, by persons whose mental soundness there is 
reason to doubt, should be jealously scrutinized by the court. 
Cases are not unknown when such confessions have been the 
product of insane delusions; and, at all events, an insane per- 
son is incompetent to make a confession, which, true or false, 
will subject him to penal responsibility.^) 
(m) R. v. Davies, 6 Cox, C. C. 326; 8 C. & K. 328. 
(to) K. v. Turton, 6 Cox, C. C. 385. 
(o) R. v. Pearce, 9 C. & P. 667. (p) Ibid. 
(q) See, as to the unreliability of such confessions, infra, §§ 782-799. 
The value of confessions, in their medico-legal relations, has been treated 
with much ability in a lecture read by Dr. Hammond in New York, in 
February, 1871 (Jour. Psyc. Med., 1871, 357) from which the following is 
taken. 
“ On the morning of the 30th June, 1860, Francis Saville Kent, four years 
old, was found murdered in an out-house on his father’s premises, Roadhill 
House, Wiltshire. The throat was cut to the bone, and there was a wound 
in the chest which penetrated to the heart. The corpse was wrapped in a 
blanket which belonged to the bed in which the child had slept the night 
before ; a piece of flannel, such as women sometimes wear over the chest, 
was found under the body, and a portion of a newspaper, which had evidently 
been used for wiping a bloody knife, lay upon the floor. Nothing else was 
discovered calculated to indicate the perpetrator of the deed, and even the 
ownership of the piece of flannel could not be traced. Mr. Kent’s family, 
including servants, consisted of twelve members. The murdered child, a 
younger one, and the nurse, Elizabeth Gough, slept in the nursery, each oc- 
cupying a separate bed. Early in the morning the nurse awoke, and found 
202 BOOK I.] 
CAPACITY OP INSANE DEFENDANTS TO PLEAD. 
[§ 2006 
the little boy’s bed empty; but, supposing that Mrs. Kent had come into the 
room and removed him, she gave herself no uneasiness on the subject, but 
went to sleep again. About half past six she again awoke, and, arising, went 
to Mrs. Kent’s bedroom and knocked at the door. Receiving no answer, she 
waited till her master and mistress had also risen, and then the discovery was 
made that the child was not in the house. Sometime afterwards the body was 
found as I have described. 
“ Before going to bed the night before, Mr. Kent had seen that all the doors 
and windows of the house were securely closed. The housemaid, in coming 
down stairs that morning, had found the drawing-room door and one of the 
windows open. Supposing that they had been forgotten, or opened by some 
member of the family for the purpose of cooling the room, she had considered 
the matter of no importance, and had, therefore raised no alarm. There was 
no evidence of any one having forced an entrance into the house. On the 
contrary, it was very certain that the murder had been committed by one or 
more of the inmates, or by some one who must have entered the building and 
remained secreted in it till the deed was perpetrated. There were no blood 
stains in the house or garden, no marks of any struggle, and no noise had 
been heard by any member of the family. 
“ Suspicions fell, by turns, upon Mr. Kent, the nurse, and upon a daughter 
of the former by his first wife ; but nothing was discovered sufficient to justify 
the committal of either for trial, though there were one or two unexplained 
circumstances which, in the minds of some, connected the young lady with 
the murder. 
“She had been heard to utter expressions of dislike against the murdered 
child, and had, on several occasions, manifested some slight degree of 
jealousy in regard to him. A night-dress of hers was missing, and no satis- 
factory account was given of its whereabouts. But there was nothing more. 
As was very natural, she had shed tears when informed of the cause of her 
arrest, but had borne herself throughout the examination with wonderful for- 
titude, and apparently with the utmost consciousness of innocence. 
“ For two years subsequently she went to school, and then, entering a semi- 
conventual order connected with the Church of England, remained in seclu- 
sion till the spring of 1865, when she voluntarily came forward, confessed 
herself guilty of her brother’s murder, and was committed to take her trial 
for the crime. The trial took place. She pleaded guilty to the indictment, 
and, on her plea alone, without any further inquiry, and without the case 
being sent to the jury, she was sentenced to death. 
“ From the report of the trial I make the following extract:— 
“ ‘At nine o’clock the learned judge took his seat on the bench, and the 
prisoner was placed at the bar. She stood firmly, but meekly, with her eyes 
cast down, and her hands clasped before her. 
“ ‘ Silence having been proclaimed, the deputy clerk of arraigns said :— 
‘““Constance Emilie Kent, you are charged with the wilful murder of 
Francis Saville Kent, on the 29th of June, 1860. Are you guilty or not 
guilty?” 
“ '■Prisoner (in a low tone). “ Guilty.” 
“ '•Judge. “Are you aware that you are charged with having wilfully, inten- 
203 § 2006] 
INSANITY AS A CRIMINAL DEFENCE. 
[BOOK I. 
tionally, and with malice, murdered your brother ? are you guilty or not 
guilty ?” The prisoner made some answer, but in so low a tone that it could 
not be heard. 
“ 1 Judge. “ I must repeat the question ; you are charged with having wil- 
fully, intentionally, and with malice, killed and murdered your brother. Are 
you guilty or not guilty ?” 
“ ‘ Prisoner (in a low tone). “ Guilty.” 
‘‘ ‘ Judge. “The plea must be recorded. ’ ’ The plea was accordingly recorded. 
“ ‘Mr. Coleridge (one of the counsel). “Before your lordship passes sen- 
tence, I desire to say two things : First, solemnly, in the presence of Almighty 
God, as a person who values her own soul, she wishes me to say, that the 
guilt is hers alone, and that her father and others, who have so long suffered 
most unjust and cruel suspicion, are wholly and absolutely innocent; and, 
secondly, that she was not driven to this act by unkind treatment at home, 
as she met with nothing there but tender and forbearing love ; and I hope I 
may add, that it gives me a melancholy pleasure to be the organ of these 
statements for her, because on my honor I believe them to be true.” ’ 
“The learned judge—evidently a kind and generous-minded man—then 
assumed the black cap, and, with great feeling, in which the prisoner joined 
with hysterical sobs, sentenced her, as his duty and the law required. And 
thus, without any inquiry into the character of the influences wThich had been 
brought to bear upon her, the tendencies of her disposition while in the 
religious institution, the sanity or insanity of her mind, her antecedents, or 
any other point which might have served to throw light upon the case, to 
lessen her criminality if really guilty, or to weaken the force of her plea if 
innocent, Constance Kent left the court convicted of the highest crime known 
to the laws of man. 
“If innocent, her case is one more added to the long list of others—mono- 
maniacs, ecstatics, enthusiasts, hysterical persons, and liars—who have con- 
fessed to the commission of offences wThich they did not perpetrate ; if guilty, 
she is, so far as I know, the solitary instance of an individual confessing to a 
crime, and being sentenced to death upon no other evidence than that of ad- 
mission. Men and women before this have, in the face of overwhelming 
testimony against them, or while in a drunken debauch, or on their death-beds, 
or standing on the scaffold, with no hope of escape, or unintentionally, like 
the robbers and the cranes of Ibycus, confessed their crimes; but, if any 
criminal of sane mind has ever yet voluntarily supplied all the evidence 
which could consign him or her to an ignominious grave, that case has 
escaped my observation. 
‘ ‘ Such are the main facts immediately connected with this most extraordinary 
case, and which is rendered still more extraordinary from the real or supposed 
discovery of the criminal. That she may have committed the murder is 
beyond question ; that she did commit it, is, in my opinion, a matter of grave 
doubt. At the time of the murder, Constance Kent was in her sixteenth 
year. Her mother had died a lunatic several years previously ; and she her- 
self, though described as a girl of warm and generous disposition, was con- 
sidered to possess a rather dull and sluggish intellect. At the time of the 
trial it was stated that she was an exceedingly plain-looking young woman, 
204 BOOK I.] 
CAPACITY OF INSANE DEFENDANTS TO PLEAD. 
[§ 2005 
with a broad, full, uninteresting face, which wore more an expression of 
stupid dulness than one of intelligence. She had full, large eyes, glanced 
uneasily around her, as if expecting some danger, and had, apparently, none 
of that cunning and shrewdness which it would he supposed she must neces- 
sarily have possessed. 
“ When arrested soon after the murder, her behavior was, as I have said, in 
the highest degree admirable. She evinced a proper amount of feeling, 
denied all knowledge of the crime, and, when questioned in regard to the 
dead child, said, ‘ The last time I saw him was in the evening when he went 
to bed. He was a very merry, good-tempered lad, and fond of romping. I 
was accustomed to play with him often—I had done so on that day. He was 
fond of me, and I was fond of him. ’ 
“Did she commit the murder ? What evidence was there of the fact beyond 
her own voluntary confession ? It may safely be assumed that there was 
none. None was brought against her at the trial, and it is not to be supposed 
that, in a country like England, where the law is rigidly enforced against 
peer and pauper alike, and in which the regard for human life is at its maxi- 
mum, she would have been allowed to live quietly for five years undisturbed 
by those who had never lost sight of the murder. The great mass of the 
people who read about the affair said, ‘What more is required ? She has 
confessed herself to be guilty, and therefore she must be guilty.’ Let us see 
what warrant there is for such an assumption. 
“After two years passed at a boarding-school, during which it was a common 
subject of remark that she was very eccentric in her demeanor, Constance 
Kent entered St. Mary’s College, Brighton, a sort of hybrid convent with a 
rector and a lady superior. Here she was undoubtedly subjected to the action 
of influences calculated to exalt her cerebral sensibility, already abnormally 
heightened by hereditary predisposition and the action of the causes to which 
I have already alluded. 
“ Let us suppose, for the sake of illustration, that she entered the quasi con- 
vent thoroughly conscious of her innocence. She knew that she was sus- 
pected. She had been arrested as the murderess, but discharged for want 
of evidence. During the two years or more subsequently, she had heard 
numerous disputes among her school-fellows in regard to her guilt. 
“The nurse had been arrested, and, though also discharged, labored under 
the suspicion of being the criminal, and was, in consequence, unable to pro- 
cure employment. Whisperings, too, which had reached her ears, had been 
going on against her father. It was said that he had an intrigue with the 
nurse, and had killed the child, who had awoke while he was in the room, 
to save his own reputation. 
“Crushed to the earth by these reports, he had buried himself in obscurity, 
a broken-hearted and a ruined man. Brooding over these thoughts and many 
others that must have forced themselves upon her, taught that self-mortifica- 
tion was one of the highest privileges of mankind, and thinking for years 
about the horrible events of that dreadful night, would it be a subject for 
astonishment if Constance Kent had come in time to think herself the mur- 
deress, and been brought to believe it her duty to relieve her friends from 
suspicion, and to save her own soul by taking the guilt upon herself? Had 
205 § 2006] 
INSANITY AS A CRIMINAL DEFENCE. 
[BOOK I. 
she not before her the example of her Lord and Saviour, who came down from 
heaven and assumed the sins of a wicked world in order that man might be 
saved ? Do we not know, by our daily experience in observations of our fellow- 
men, that the mind, by constantly entertaining the most preposterous ideas, 
finally accepts them as true ? It is said, and doubtless with truth, that the most 
false and improbable story, if frequently told, is eventually so deeply impressed 
upon the mind of the relator that he religiously believes in its genuineness. 
“ A mere dream is, in certain states of the system, undistinguishable from 
realities. A patient, a lady with deranged menstrual function, informed me 
that she had risen in the night and gone to visit a gentleman of her acquaint- 
ance, who lived in a distant part of the city, and had stayed in his house all 
night. Thorough inquiry showTed, beyond the probability of doubt, that there 
was not a word of truth in her story; that she had not left the house at all, 
and that the gentleman in question was not at the time in the city. Doubt- 
less the whole series of events had no other foundation than a vivid dream. 
In the middle ages spontaneous orgasm made many a woman consider herself 
subjected to the influence of the devil. We know, too, that most children are 
incapable of discriminating between the phantoms of dreams and actual events, 
and they are frequently punished for lying when they firmly believe they 
have spoken the truth. I have often had children give the most circumstan- 
tial and serious accounts of their interviews with fairies and ogres, which 
accounts were clearly attributed to dreams. 
“ A desire for notoriety will sometimes be the predominant force in causing 
a false confession. A few months ago I was requested by Colonel Whitely, 
the chief detective officer of the Government, to visit, in the Tombs prison, a 
man who had confessed himself to be a member of a gang of counterfeiters. 
“This individual had written a letter to the Secretary of the Treasury, in 
which he detailed in the most consistent and minute manner the organization 
of the band, and as members of which he gave the names of the most eminent 
and respectable citizens of the United States, of both political parties. His 
statements were believed, and Colonel Whitely was directed to investigate 
the whole affair with the utmost secrecy and completeness. Colonel Whitely, 
with the perspicuity for which he is noted, soon had his suspicions excited 
that the man’s story was a fabrication. 
“ Nevertheless, the evidence the fellow had sent to Washington was so far 
credited that it was under consideration whether or not the alleged members 
of the band, embracing governors of states, senators, representatives, high 
officials of the army, and others, should be arrested. 
“At this juncture, Colonel Whitely requested me to examine the man. I 
found him perfectly coherent, but wavering and contradictory in his statements. 
Examination of the skull showed that he had received a wound from a 
musket-ball, and this, with the facts that he did not sleep, that he had a cere- 
bral congestion, and w'as evidently laboring under a delusion, convinced me 
that he wTas a fitter subject for the lunatic asylum on Blackwell’s Island than 
for a prison, and I accordingly had him sent there. 
‘4 In this case a desire for notoriety and the self-inflation resulting from the 
association of his name with others of exalted station had been the primary 
force of his action, and had eventually rendered him insane.” 
206 BOOK I.] 
INSANITY PRODUCED BY DELIRIUM TREMENS. 
[§ 202 
D. HOW FAR INTOXICATION AFFECTS RESPONSIBILITY FOR CRIME. 
§ 201. The law in this connection may be summed up as 
follows:— 
(a1) Insanity produced by delirium tremens affects responsibility 
IN THE SAME WAY AS INSANITY PRODUCED BY ANY OTHER CAUSE. 
(51) Insanity immediately produced by intoxication does not 
DESTROY RESPONSIBILITY IF THE PATIENT, WHEN SANE AND RESPON- 
SIBLE, MAKES HIMSELF INTOXICATED. 
(c1) While drunkenness per se is no defence to the fact of guilt, 
YET, WHEN THE QUESTION OF INTENT OR PREMEDITATION IS CON- 
CERNED, IT BECOMES A MATERIAL ITEM OF CONSIDERATION. 
(a1) Insanity produced by delirium tremens affects responsi- 
bility IN THE SAME WAY AS INSANITY PRODUCED BY ANY OTHER 
CAUSE. 
§ 202. If a man who, laboring under delirium tremens, kill 
another, is made responsible, there is scarcely any species of 
insanity which, on like principles, wmuld not be subjected to 
the severest penalties of criminal law. “ It may be the imme- 
diate effect,” says Dr. Ray,(<7) “of an excess, or series of ex- 
cesses, in those who are not habitually intemperate, as well as 
in those who are; but it most commonly occurs in habitual 
drinkers, after a few days’ total abstinence from spirituous 
liquors. It is also very liable to occur in this latter class when 
laboring under other diseases, or severe external injuries, that 
give rise to any degree of constitutional disturbance. The 
approach of the disease is generally indicated by a slight 
tremor and faltering of the hands and lower extremities, a 
tremulousness of the voice, a certain restlessness and sense of 
anxiety which the patient knows not how to describe or 
account for, disturbed sleep, and impaired appetite. These 
symptoms having continued two or three days, at the end of 
which time they have obviously increased in severity, the 
patient ceases to sleep altogether, and soon becomes delirious. 
At first the delirium is not constant, the mind wandering 
during the night, but, during the day, when its attention is 
fixed, capable of rational discourse. It is not long, however, 
(g) Med. Jur. 438, 
207 §202] 
[book i. 
INSANITY AS A CRIMINAL DEFENCE. 
before it becomes constant, and constitutes the most prominent 
feature of the disease. Occasionally the delirium occurs at an 
earlier period of the disease, and may even be the first symptom 
of any disorder. This state of watchfulness and delirium con- 
tinues three or four days, when, if the patient recover, it is 
succeeded by sleep, which at first appears in uneasy and irreg- 
ular naps, and lastly in long, sound, and refreshing slumbers. 
When sleep does not supervene about this period, the disease 
is fatal; and whether subjected to medical treatment or left to 
itself, neither its symptoms nor its duration are materially 
modified. The character of the delirium in this disease is 
peculiar, bearing a stronger resemblance than any other form 
of mental derangement to dreaming. It would seem as if the 
dreams which disturb and harass the mind during the imper- 
fect sleep that precedes the explosion of the disease continue 
to occupy it when awake, being then viewed as realities, 
instead of dreams. The patient imagines himself, for instance, 
to be in some peculiar situation, or engaged in certain occupa- 
tions, according to each individual’s habits and profession; and 
his discourse and conduct are conformed to this delusion, with 
striking peculiarity, however, that he is thwarted at every 
step, and is constantly meeting with obstacles that defy his 
utmost efforts to remove. Almost invariably the patient 
manifests, more or less, feelings of suspicion or fear, laboring 
under continual apprehension of being made the victim of sin- 
ister designs and practices. He imagines that certain people 
have conspired to rob or murder him, and insists that he can 
hear them in an adjoining apartment arranging their plans 
and preparing to rush into his room; or that he is in a strange 
place, where he is forcibly detained, and prevented from going 
to his own home. One of the most common hallucinations is 
to be constantly seeing devils, snakes, vermin, and all manner 
of unclean things around him and about him, and filling every 
nook and corner of his apartment. The extreme terror which 
these delusions often inspire produces in the countenance an 
unutterable expression of anguish, and, in the hope of escaping 
from his fancied tormentors, the wretched patient endeavors 
to cut his throat or jump from the window. Under the influ- 
ence of these terrible apprehensions he sometimes murders his 
208 BOOK I.] 
INSANITY PRODUCED BY DELIRIUM TREMENS. 
[§ 
wife or attendant, whom his disordered imagination identifies 
with his enemies, though he is generally tractable, and not 
inclined to he mischievous. After perpetrating an act of this 
kind, he generally gives some illusive reason for his conduct, 
rejoices in his success, and expresses his regret at not having 
done it before.”^1) 
§ 203. As far as concerns temporary incapacity, therefore, 
delirium tremens acts in the same way as any other delirium, 
and, when complete, destroys the moral as well as the intel- 
lectual responsibility. The only question, therefore, is, whether 
there is anything in the source from which it is derived which 
requires that it should be exempted from the general rule by 
which delirium forms a good defence to an indictment for a 
criminal offence. In the dicta of one or two of the older law 
writers, this exception is sought to be sustained, on the ground 
that a drunkard, in every stage, is a voluntary demon, and 
that he can no more use his consequent mania as a defence, 
than can the man who kills another by a sword allege that it 
was the sword, and not himself, that was the guilty agent. 
But to this the answer is threefold: (1) that delirium tremens 
is not the intended result of drink in the same way that drunk- 
enness is; (2) that there is no possibility that delirium tremens 
can be voluntarily generated in order to afford a cloak for a 
particular crime; (3) that, so far as original cause is concerned, 
it is not peculiar in being the offspring of indiscretion or 
guilt, for such is the case with almost every other species of 
insanity. These points scarcely need to be expanded. The 
fact is, delirium tremens runs the same course with most 
of the other classes of insanity known in the criminal courts. 
It is the result, like most other manias, of prior vicious indul- 
gence ; but it differs from intoxication in being shunned rather 
than courted by the patient, and in being incapable of volun- 
tary assumption for the purpose of covering guilt. 
§ 204. Reason, therefore, undoubtedly teaches us that a 
person who is incapacitated from moral and intellectual 
agency, by reason of delirium tremens, is irresponsible; and 
(gl) See an interesting case of Oinomania in 8 Amer. Journ. of Insan. 3; 
and see infra, “Dipsomania,” § 639. 
VOL. I.—14 
209 §205] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
such is the law, as decided in repeated instances.(A) Thus, in 
the leading American case, Story, J., declared criminal re- 
sponsibility not to attach where the delirium is the “ remote 
consequence” of voluntary intoxication, “ superinduced by the 
antecedent exhaustion of the party, arising from gross and 
habitual drunkenness. However criminal,” he proceeded to 
say, “ in a moral point of view, such an indulgence is, and 
however justly a party may be responsible, for his acts arising 
from it, to Almighty God, human tribunals are generally re- 
stricted from punishing them, since they are not the acts of a 
reasonable being. Had the crime been committed when Drew 
(the defendant) was in a fit of intoxication, he would have been 
liable to be convicted of murder. As he was not then intoxi- 
cated, but merely insane from an abstinence from liquor, he 
cannot be pronounced guilty of the offence. The law looks 
to the immediate, and not to the remote cause; to the actual 
state of the party, and not to the causes which remotely pro- 
duced it. Many species of insanity arise, remotely, from 
what, in a moral view, is a criminal neglect or fault of. the 
party; as from religious melancholy, undue exposure, extrava- 
gant pride, ambition, etc. Yet such insanity has always 
been deemed a sufficient excuse for any crime done under its 
influence.” 
§ 205. In a still earlier case of at least equal authority, the 
court told the jury that if they “should be satisfied by the 
evidence, that the prisoner, at the time of committing the act 
charged in the indictment, was in such a state of mental in- 
sanity, not produced by the immediate effects of intoxicating 
drinks, as not to have been conscious of the moral turpitude 
of the act, they should find him not guilty.”(f) And expressly 
to this very point is a more recent case, where a federal judge 
of high authority told the jury, that, if the defendant was “so 
(h) U. S. v. Drew, 5 Mason, U. S. Rep. 28; Bennett v. State, Mart. & Yerg. 
188 ; Cornwell v. State, ibid. 14; Maconneliey v. State, 5 Ohio (N. S.), 77; 
Carter v. State, 12 Texas, 500 ; R. v. Thomas, 8 C. & P. 820 ; R. v. Meakin, 
7 C. & P. 299 ; Rennie’s Case, 1 Lew. C. C. 76 ; 1 Hale, 32 ; 1 Russ on Cr. 7; 
4 Black. Com. 26. 
(0 u- s- v• Clarke, 2 Cranch, C. C. R. 158 ; S. P. State v. Hundley, 46 
Mo. 414. 
210 BOOK I.J 
INSANITY PRODUCED BY DELIRIUM TREMENS. 
[§ 205 
far insane as not to know the nature of the act, nor whether 
it was wrong or not, he is not punishable, although such 
delirium tremens is produced by the voluntary use of intoxi- 
cating liquors.”(j) 
(j) U. S. v. McGlue, 1 Curtis, C. C. R. 1. This case we give in full:— 
The prisoner, who was second officer on board the barque Lewis, was in- 
dicted for the murder of the first officer of that vessel while on board. The 
defence was insanity. The other facts appear in the charge of the court. 
Curtis, J. The prisoner is indicted for the murder of Charles A. Johnson. 
It is incumbent on the government to prove the truth of every fact in the in- 
dictment necessary in point of law to constitute the offence. These facts are 
in part controverted, and in part, as I understand the course of the trial, not 
controverted ; and it will be useful to separate the one from the other. That 
there was an unlawful killing of Mr. Johnson ; that the mortal wound was 
inflicted by the prisoner at the bar ; that this wound was given and the death 
took place on board the barque Lewis ; that Johnson was the first, and the 
prisoner the second officer of that vessel at the time of the occurrence ; that 
the vessel at that time was either on the high seas, as is charged in one count, 
or upon waters within the dominion of the Sultan of Muscat, as is charged 
in another count; and that the prisoner was first brought into this district 
after the commission of the alleged offence—do not appear to be denied ; and 
the evidence is certainly sufficient to warrant you in finding all these facts. 
It is not upon a denial of either of these facts that the defence is rested, but 
upon the allegation by the defendant, that at the time the act was done he 
was so far insane as to be criminally irresponsible for his act. And this 
brings you to consider the remaining allegation in the indictment which in- 
volves this defence. It is essential to the crime of murder that the killing 
should be from what the law denominates malice aforethought, and the 
government must prove this allegation. 
Now, if you believe the evidence, there can be no question, that the killing 
was malicious, provided the prisoner was at the time in such a condition as 
to be capable, in law, of malice. If he was then so insane that the law holds 
him irresponsible, it deems him incapable of entertaining legal malice ; and 
one main inquiry in this case is, whether the prisoner, when he struck the 
blow, was so far insane as to be held by the law irresponsible for intentionally 
killing Mr. Johnson. 
Some observations have been made by the counsel of each side respecting 
the character of this defence. On the one side it is urged that the defence of 
insanity has become of alarming frequency, and that there is reason to 
believe that it is resorted to by great criminals to shield them from the just 
consequences of their crimes; that there exist in the community certain 
theories concerning what is called moral insanity, brought forward on trials 
of this kind, tending to subvert the criminal law, and render crimes likely 
not to be punished. On the other hand, the inhumanity and injustice of hold- 
ing him guilty of murder who was not at the time of the act a reasonable 
being, have been brought before you in the most striking forms. 
211 212 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
When delirium tremens is set up as a defence, the prisoner 
These observations of the counsel on both sides are worthy of your atten- 
tion, and their effect should be to cause you to follow steadily, carefully, and 
exactly, the rules of law upon this subject. The general question, whether 
the prisoner’s state of mind when he struck the blow was such as to exempt 
him from legal responsibility, is a question of fact for your decision. But 
there are certain rules of law which jmu are bound to apply, and the court, 
upon its responsibility, is to lay down ; and these rules, when applied, will 
conduct you to the only safe decision. 
You will observe, then, that this defence of insanity is to be tested and 
governed by principles of law, and not by any loose general notions which 
may be afloat in the community, or even the speculations of men of science; 
and I now proceed to state to you such of them as arc applicable to this case. 
The first is, that the defendant must be presumed to be sane till his insanity 
is proved. Men, in general, are sufficiently sane to be responsible for their 
acts. To be irresponsible because of insanity is an exception to that general 
rule. And, before any man can claim the benefit of such an exception, he 
must prove that he is within it. 
You will, therefore, take it to be the law, that the prisoner is not to be ac- 
quitted upon the ground of insanity, unless upon the whole evidence you are 
satisfied that he was insane when he struck the blow. 
The next inquiry is, Wliat is meant by insanity ? What is it which exempts 
from punishment, because its existence is inconsistent with a criminal intent ? 
Clearly, it is not every kind and degree of insanity which is sufficient. 
There are, undoubtedly, persons of great general ability, filling important 
stations in life, who, upon some one subject, are insane. And there are others 
whose minds are such that the conclusions of their reasons and the results of 
their judgments are very far from right. And others whose passions are so 
strong, or whose conscience, reason, and judgment are so weak, so perverted, 
that they may, in some sense, be denominated insane. But it is not the busi- 
ness of the law to inquire into these peculiarities, but solely whether the 
person accused was capable of having, and did have, a criminal intent. If he 
had, it punishes him; if not, it holds him dispunishable. And it supplies a 
test, by which the jury is to ascertain whether the accused be so far insane as 
to be irresponsible. That test is the capacity to distinguish between right 
and wrong as to the particular act with which he is charged. If he under- 
stands the nature of the act, if he knows that it is criminal, and that if he does 
it he deserves punishment, then he is not so far insane as to be exempt from 
responsibility. But, if he is under such delusion as not to understand the 
nature of the act, and has not reason and judgment to know that he is de- 
serving of punishment, then he is not responsible. This is the test which the 
law prescribes, and which you are to apply in the present case. 
It is asserted by the prisoner that when he struck the blow he was suffering 
under a disease known as delirium tremens, lie has introduced evidence 
tending to prove his intemperate drinking of ardent spirits during several 
days before the time in question, and also certain effects of this intemperance. 
Physicians of great eminence, and particularly experienced in the observation 
212 BOOK I.] 
INSANITY PRODUCED BY DELIRIUM TREMENS. 
213 
must, show that he was under a delirium at the time the act 
of this disease, have been examined on both sides. They were not allowed 
to give their opinions upon the ease; because the ease, in point of fact, on 
which any one might give his opinion, might not be the case which you, upon 
the evidence, would find ; and there would be no certain means of knowing 
whether it was so or not. It is not the province of an expert to draw infe- 
rences of fact from evidence, but simply to declare his opinion upon a known 
or hypothetical state of facts; and therefore the counsel on each side have 
put to the physicians such states of facts as they deem warranted by the evi- 
dence, and have taken their opinions thereon. If you consider that any of 
these states of fact put to the physicians are proved, then the opinions thereon 
are admissible evidence, otherwise they are not applicable to this case. And 
here I may remark, that although in general witnesses are held to state only 
facts, and are not allowed to give their opinions in a court of law, yet this 
rule does not exclude the opinions of those whose professions and studies, or 
occupations, have rendered them peculiarly skilful concerning particular 
questions. Wc take the opinion of physicians in this case for the same reason 
that we resort to them in our own cases out of court, because they are believed 
to be better able to form a correct opinion upon a subject within the scope of 
their studies than men in general. But these opinions, though proper for 
your consideration, are, nevertheless, not binding on you against your own 
judgment, but should be weighed, and, especially where they differ, compared 
by you, and such effect allowed to them as you think right. Besides these 
opinions, the physicians have also described to you the symptoms of the 
disease delirium tremens. They all agree that it is a disease of a very stx-ongly 
marked character, and as little liable to be mistaken as any known in medi- 
cine. Dr. Bell says the symptoms are— 
“1. Delirium, taking the form of apprehensiveness on the part of the 
patient. He is fearful of something ; imagines demons and snakes around him. 
In attempting to escape, he will attack others as well as injure himself. But 
he is more apprehensive of receiving injury than desirous of inflicting it, 
except to escape. He is generally timid and irresolute, and easily pacified 
and controlled. 
“2. Sleeplessness. I believe delirium tremens cannot exist without this. 
“ 3. Tremulousness, especialty of the hands, but showing itself in the limbs 
and the tongue. 
“4. After a time sleep occurs, and reason thus returns; usually the sleep 
comes on in not less than three days, dating from the last sleep. At first it is 
broken ; then this is followed by a profound sleep, lasting six or eight hours, 
from which the patient awakes sane.” 
Dr. Steadman, after describing its symptoms substantially as Dr. Bell did, 
says its access may be very sudden, and he has often known it first to mani- 
fest itself by the patients attacking those about them, regarding them as 
enemies ; that a case may terminate in two days, and rarely lasts more than 
four days. 
Regarding these accounts of the symptoms of this disease, you will inquire 
whether the evidence proves that they existed in this case ; and whether the 
213 § 205] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
was perpetrated, there being no presumption of its existence 
from the antecedent tits from which he has recovered.(&) 
previous habits and the intemperate use of ardent spirits, from which this 
disease springs, are shown ; and whether the recovery of the prisoner corre- 
sponded with the course and termination of the disease of delirium tremens as 
described by the physicians. 
It is not denied, on the part of the government, that the prisoner had drank 
intemperately of ardent spirits during some days before the occurrence. But 
it is insisted, that he had continued to drink, down to a short time before 
the homicide ; and that when he struck the blow it was in a fit of drunken 
madness. And this renders it necessary to instruct you concerning the law 
upon the state of facts which the prosecutor asserts existed. 
Although delirium tremens is the result of intemperance, and therefore 
in some sense is voluntarily brought on, yet it is distinguishable, and by 
the law is distinguished, from that madness which sometimes accompanies 
drunkenness. 
If a person suffering under delirium tremens is so far insane as to render 
him irresponsible, the law does not punish him for any crime he may commit. 
But, if a person commits a crime while intoxicated, under the immediate 
influence of liquor, the law does punish him, however mad he may have been. 
It is no excuse, but rather an aggravation of his offence, that he first deprived 
himself of reason before he did the act. There would be no security for life 
or property if men could commit crimes with impunity, provided they would 
first make themselves drunk enough to cease to be reasonable beings. And, 
therefore, it is a very important inquiry in this case whether this homicide 
was committed while the prisoner was suffering under that marked disease 
of delirium tremens, or in a fit of drunken madness. If the prisoner while 
sane made himself intoxicated, and while intoxicated committed a murder 
by reason of insanity which was one of the consequences of that intoxica- 
tion, then he is responsible in point of law, and must be punished. This 
is as clearly the law of the land as the other rule, which exempts from pun- 
ishment acts done under delirium tremens. It may sometimes be difficult 
to determine under which rule the accused comes. But it is the duty of the 
jury to ascertain from the evidence on which side this case falls, and to decide 
accordingly. 
It may he material for you to know on which party is the burden of proof 
in this part of the case. It is incumbent on the prisoner to satisfy you that 
he was insane when he struck the blow, for the law presumes every man to 
be sane till the contrary is proved. But, if the contrary has been proved, the 
law does not presume that the insanity of the prisoner arose from any par- 
ticular cause ; and it is incumbent on the party which asserts that it did arise 
from a particular cause, and that the prisoner is guilty by law because it arose 
from that cause, to make out this necessary element in the charge to the same 
(Jc) State ®. Sewell, 3 Jones, Law (N. C.)245. As to general presumption 
arising from prior insanity, see §§ 246, 269. 
214 BOOK I.] 
INSANITY PRODUCED BY DELIRIUM TREMENS. 
[§ 206 
§ 206. To an indictment in Delaware, for larceny, the de- 
fence was that the prisoner was so drunk as to render him 
irresponsible. Judge Wotten charged the j ury that drunken- 
ness was no excuse or palliation for a crime, but drunkenness 
long continued produces the disease of mania a potu, which 
deprives the party of reason, and incapacitates him from dis- 
tinguishing between right and wrong. In this stage it be- 
comes a kind of insanity. The jury would have to distinguish 
between the mere frenzy of drunkenness, and the fixed 
insanity produced by continued dissipation. If the prisoner 
extent as every other element in it. For the charge then assumes this form— 
that the prisoner committed a murder, for which, though insane, he is respon- 
sible, because his insanity was produced by and accompanied a state of in- 
toxication. The government must satisfy you of these facts, which are 
necessary to the guilt of the prisoner in point of law. If you are convinced 
that the prisoner was insane to such an extent as to render him irresponsible, 
you will acquit him, unless you are also convinced that his insanity was pro- 
duced by intoxication, and accompanied that state; in which case you will 
find him guilty. 
The prisoner was acquitted. 
A note in the American Journal of Insanity for July, 1856, says :— 
“This distinction, between delirium tremens and temporary madness in- 
duced by intoxication, is laid down in The United States v. Drew, 5 Mason, 
28; and (in England) in John Burroughs’ case, 1 Lewin, C. 0. 75. In the 
latter case, Holroyd, J., said: ‘Drunkenness is not insanity, nor does it 
answer to what is termed an unsound mind, unless the derangement which it 
causes becomes fixed and continued by the drunkenness being habitual, and 
thereby rendering the party incapable of distinguishing between right and 
wrong. ’ That mere drunkenness is no excuse for crime is very clearly settled 
by many decisions both in this country and in England. Cornwell v. The 
State, Mart. & Y. 147, 149; Burnet v. The State, ib. 133; The State v. 
Turner, 1 Wright’s Ohio, 30 ; The State v. Thompson, ib. 617; Schaller v. 
The State, 14 Missouri, 502; The State v. John, 8 Ired. 330; Pirtle v. The 
State, 9 Humph. 663 ; Kelley v. The State, 3 Smedes & M. 518; The United 
States v. Clarke, 2 Cranch, C. C. R. 158. But, though drunkenness is not of 
itself a complete defence to crime, as insanity is, yet it may be admissible to 
the jury as evidence of the intent, in certain cases, with which the act was 
done. Thus, in Pigman v. The State, 14 Ohio, 555, it was held, on an indict- 
ment for passing counterfeit money knowing it to be counterfeit, that the 
drunkenness of the prisoner at the time of passing was proper for the con- 
sideration of the jury in determining whether he knew the bill to be coun- 
terfeit. See, also, The State v. McCante, 1 Spears, 389 ; Pennsylvania v. Fall, 
Addison, 257; Swan v. The State, 4 Humph. 136; Pirtle v. The State, 9 ib. 
570 ; Haile v. The State, 11 ib. 154.” 
215 216 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
was in the latter condition he could not be held responsible, 
otherwise he ought to be convicted.(7) 
(bl) Insanity immediately produced by intoxication does not 
DESTROY RESPONSIBILITY WHERE THE PATIENT, WHEN SANE AND 
RESPONSIBLE, MADE HIMSELF VOLUNTARILY INTOXICATED. 
§ 207. Drunkenness, so long as it does not prostrate the 
faculties, cannot be distinguished from any other kind of 
passion. If the man who is maddened by an unprovoked 
attack upon his person, his reputation, or his honor, be never- 
theless criminally responsible—if hot blood form no defence 
to the fact of guilt—it would be a most extraordinary anomaly 
if drunkenness voluntarily assumed should have that effect, 
independently of all extraneous provocation whatever. If, as 
is pretended—or else there is no ground for the exception— 
drunkenness so incapacitates the reason as to make it at 
least partially incapable of distinguishing between right and 
wrong, or else so inflames the passions as to make restraint 
insupportable, then comes in the familiar principle that the 
man who voluntarily assumes an attitude or does an act which 
is likely to produce death in others, is responsible for the con- 
sequences, even though he had at the time no specific inten- 
tions to take the life of any one. Thus, if a man breaking an 
unruly horse wilfully ride him among a crowd of persons, 
the probable danger being great and apparent, or if a work- 
man out of sport or mischief slide a plank from the top of a 
roof into a crowded street, or if a manufacturer deliberately 
and knowingly leave in the cellar of an uninhabited house a 
keg of powder, and death ensue, it is murder at common 
law.(m) And so it must also be held that the steamboat 
captain who deliberately dashes his boat into a crowd of smaller 
craft, so that life is taken, is in like manner responsible. There 
can be no question as to this. The man v’ho voluntarily arms 
himself with weapons of destruction, and then throws them 
hap-hazard among the innocent or unoffending, without even 
(l) State v. McGonigal, 5 Harrington, 510. 
(m) See Wharton on Homicide, 45, where these points are fully established. 
216 BOOK I.] 
INTOXICATION. 
[§ 209 
the excuse of specific malice or provocation, is at least as dan- 
gerous as the assassin who picks out his victim in advance. 
Against the last there may be some checks; against the first, 
none. Caution may ward off the one, or innocence escape it; 
but to the other the most innocent and benevolent would be 
as likely to fall victims as the most malevolent. 
§ 208. The safety of the community, in fact, requires that 
this rule should be observed. Every murderer would drink 
to shelter his intended guilt. There never could be a con- 
viction for homicide if drunkenness avoid responsibility.(n) 
As it is, some of the most premeditated homicides are com- 
mitted under the stimulus of liquor. The guilty purpose is 
at first sedately conceived, but there are few men whose tem- 
peraments are so firmly knit as to enable them to enter a scene 
of blood, without first fortifying themselves for the task to be 
performed. The head dreads the heart’s cowardice, and seeks 
to insure against it by drink. And, if the assassin does not 
take liquor to strengthen his nerves, he will take it to avoid 
conviction. There would be no species of deliberate homicide, 
under such a dispensation, that would not avoid punishment. 
It would be the undeliberate only that would be made 
responsible. 
§ 209. The tenor of Anglo-American and European authority 
to this effect is clear. Even the German text writers, some 
of whom attenuate to so wide and thin a texture the doctrine 
of moral responsibility, do not undertake to treat drunkenness 
as a defence. Sir E. Coke does not go beyond the tenor of 
Roman as well as of English writers, when he says, “ As for 
a drunkard who is voluntarius daemon, he hath, as has been 
said, no privilege thereby, but, what hurt or ill soever he doth, 
his drunkenness doth aggravate it. Omne crimen ebrietas et 
incendit et detegit.”(o) And, although drunkenness cannot now 
be said to aggravate a crime in a judicial sense, yet it is well 
settled that it forms no defence to the fact of guilt. Thus 
Judge Story, in a case already cited, after noticing that 
insanity, as a general rule, produces irresponsibility, went on 
to say: “An exception is, when the crime is committed by a 
(n) See post, % 92. 
(<?) Co. Litt. 247, a. 
217 §210] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
party wliile in a fit of intoxication, the law allowing not a 
man to avail himself of the excuse of his own gross vice and 
misconduct, to shelter himself from the legal consequences of 
such crime.” Lord Hale says: “The third sort of madness is 
that which is dementia affectata, namely drunkenness. This 
vice doth deprive a man of his reason, and puts many men 
into a perfect or temporary frenzy; hut by the laws of Eng- 
land, such a person shall have no privileges by his voluntarily 
contracted madness, but shall have the same judgment as if 
he were in his right senses.”(£>) And so Parke, B., a very au- 
thoritative English crown judge, said to a jury in 1837: “I 
must also tell you, that, if a man makes himself voluntarily 
drunk, it is no excuse for any crime he may commit whilst he 
is so; he takes the consequences of his own voluntary act, or 
most crimes would go And Alderson, B., 
said in 1836: “If a man chooses to get drunk, it is his own 
voluntary act; it is very different from madness which is not 
caused by any act of the person. That voluntary species of 
madness which it is in a party’s power to abstain from, he 
must answer for.”(r) In harmony with this is the whole 
current of English authority.(s) 
§ 210. The law in this country is that drunkenness is no 
defence to the factum of guilt; the only point about which 
there has been any fluctuation, being the extent to which evi- 
dence of drunkenness is receivable to determine the exactness 
of the intent or the extent of deliberation.^) 
(p) 1 Hale, 7; 4 Black. Com. 26 ; Wharton’s C. L. (in loco) ; 1 Gabbett, 
C. L. 9 ; and see a very learned article in 6 Law Rep. (N. S.) 554. 
(q) R. v. Thomas, 7 C. &P. 817. (r) R. ». Meakin, 6 C. & P. 297. 
(s) Burrow’s Case, 1 Lewin C.C. 65 ; Rennie’s Case, 1 Lewin C.C. 76 ; 1 
Russel on Cr. 8. 
(0 People «. Lewis, 36 Cal. 531; People v. Gut, 13 Min. 341; State v. 
Cross, 27 Mo. 332 ; see McIntyre v. People, 38 111. 514 ; People v. Garbutt, 
17 Mich. 9 ; U. S. v. Clarke, 2 Crancli C. C. R. 158 ; U. S. v. McGlue, 1 Curtis 
C.C.R. 1; Kelley v. State, 3 Smedes &Mar. 518; Cornwall v. State, Mar. & 
Yer. 147 ; v. State, 9 Humph. 663 ; State v. John, 8 Ired. 330 ; State v. 
Turner, 1 Wright, 30 ; Sclialler v. State, 14 Missouri, 502; Wh. Cr. Law, 
§ 40; Wh. on Homicide, 369. In Rogers’ case, which came up in 1858, 
before the New York Court of Appeals, the law was thus stated by 
Denio, J.: “Where a principle of law is found to he well established by a 
series of authentic precedents, and especially where, as in this case, there is 
218 BOOK I.] 
INTOXICATION. 
[§ 211 
§ 211. A humane qualification of the old law has been lately 
(1870) recognized by the Supreme Court of Michigan, in an 
no conflict of authority, it is unnecessary for the judges to vindicate its 
wisdom or policy. It will moreover occur to every mind that the principle 
mentioned is absolutely essential to the protection of life and property. In 
the forum of conscience there is no doubt considerable difference between 
murder deliberately planned and executed by a person of unclouded intellect, 
and the reckless taking of life by one infuriated by intoxication: but human 
laws are based upon considerations of policy, and look rather to the main- 
tenance of personal security and social order, than to accurate discrimination 
as to the moral qualities of individual conduct. But there is in truth no in- 
justice in holding a person responsible for his acts committed in a state of 
voluntary intoxication. It is a duty which every one owes to his fellow men, 
to say nothing of more solemn obligations, to preserve, so far as it is in his 
power, the inestimable gift of reason. If it be perverted or destroyed by fixed 
disease, though brought on by his own vices, the law holds him not account- 
able. But, if by a voluntary act he temporarily casts off the restraints of 
reason and conscience, no wrong is done him if he is considered answerable 
for any injury which in that state he may do to others, or to society. 
“Before proceeding to examine the judge’s charge, it is necessary to state 
one other principle connected with the subject of intoxication. I am of 
opinion that, in cases of homicide, the fact that the accused was under the 
influence of intoxication may be given in evidence in his behalf. The effect 
which the evidence ought to have upon the verdict will depend upon the other 
circumstances of the case. Thus, in Rex v. Carroll, which was a case of 
murder by stabbing, there was not, as the court considered, any provocation 
on the part of the deceased, and it was held that the circumstance that the 
prisoner was intoxicated was not at all material to be considered. Rex v. 
Meakin, was an indictment for stabbing with a fork with intent to murder ; 
and it was shown that the prisoner was the worse for liquor. Alderson, 
Baron, instructed the jury that, with regard to the intention, drunkenness 
might be adverted to according to the nature of the instrument used. 4 If,’ 
he said, 4 he uses a stick, you could not infer a malicious intent so strongly 
against him if drunk, if he made an intemperate use of it, as you would if he 
had used a different kind of weapon; but, where a dangerous instrument is 
used, which, if used, must produce a grievous bodily harm, drunkenness can 
have no effect upon the consideration of the malicious intent of the party.’ 
In Rex v. Thomas, for malicious stabbing, the person stabbed had struck the 
prisoner twice with his fist, when the latter, being drunk, stabbed him, and 
the jury were charged that drunkenness might be taken into consideration 
where what the law deems sufficient provocation has been given, because the 
question in such cases is, whether the fatal act is to be attributed to the 
passion of anger excited by the previous provocation; and that passion, it 
was said, is more easily excitable in a person when in a state of intoxication 
than when he is sober ; so, it was added, where the question is, whether 
words have been uttered with a deliberate purpose, or are merely low and idle 
219 § 211] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
opinion of much force. If a person (so it has been there held) 
is subject to a hereditary or other of insanity liable to be 
expressions, the drunkenness of the person uttering them is proper to be con- 
sidered. But, if there is really a previous determination to resent a slight 
affront in a barbarous manner, the state of drunkenness in which the prisoner 
was ought not to be regarded, for it would furnish no excuse. 
“ It most generally happens, in homicides committed by drunken men, that 
the condition of the prisoner would explain or give character to some of his 
language, or some part of his conduct, and, therefore, I am of opinion that it 
would never be correct to exclude the proof altogether. That it would some- 
times be right to advise the jury that it ought to have no influence upon the 
case, is, I think, clear from the foregoing authorities. In a case of lengthened 
premeditation, of lying in wait, or where the death was by poisoning, or in 
the case of wanton killing without any provocation, such an instruction would 
plainly be proper. 
“Assuming the foregoing positions to be established, I proceed to examine 
the exception to the charge of the judge. It is difficult to know precisely 
what was meant by the request to charge ; but I think its sense may be ex- 
pressed thus : that drunkenness might exist to such a degree, that neither an 
intention to commit murder, nor a motive for such an act, could be imputed 
to the prisoner. It was therefore asked that it should be left to the jury to 
determine whether such a degree of intoxication had been shown ; and that 
they should be instructed that if it had, the prisoner should be found guilty o 
manslaughter only. We must lay out of view as inapplicable, the case of a per- 
son who had become insensible from intoxication, and who was performing an 
act unaccompanied by volition. There was nothing in the evidence to show 
that the prisoner’s conduct was not entirely under the control of his will, or 
which would render it possible for the jury to find that he did not intend to stab 
the deceased with his knife. The mind and will were no doubt more or less 
perverted by intoxication, but there was no evidence tending to show that 
they were annihilated or suspended. Assuming, therefore, that the request did 
not refer to such a hypothesis, the only other possible meaning is that it sup- 
poses the jury legally might find that the prisoner was so much intoxicated 
that he could not be guilty of murder for the want of the requisite intention 
and motive, and the request was that they might be so instructed. This would 
be precisely the same thing as advising them that they might acquit of murder 
on account of the prisoner’s intoxication, if they thought it sufficient in 
degree. It has been shown that this would be opposed to a well-established 
principle of law. The judge was not at liberty so to charge, and the excep- 
tion to his refusal cannot he sustained. What he did charge on the subject of 
intoxication, was more favorable to the prisoner than he had a right to claim. 
It implies that if he was so far intoxicated as to be deprived of his reasoning 
faculties, it was an excuse for the crime of murder, or, as perhaps it was in- 
tended to state, that he could not be guilty of murder. The rule which I have 
endeavored to explain assumes that one may be convicted of murder, or of 
other crime, though his mind be reduced by drunkenness to a condition which 
220 BOOK I.] 
[§ 211 
INTOXICATION. 
excited by slight amounts of alcoholic drinks,—if, in conse- 
quence of indulging in such drinks his mental faculties become 
excited to diseased action to such extent that he loses self- 
control, if he was ignorant of this effect when so indulging,— 
then he will be regarded as rather insane than intoxicated, and 
subject to the immunities of insanity.(w) This is undoubtedly 
in accordance with those analogies which gauge insane delu- 
sions by the intellectual abilities of patient and not of critic, 
and which declare that we are to measure a man’s fears and 
passions by his character and temperament, and not by our 
own.(p) Dr. Krafft-Ebing, in an essay published in 1871, has 
vindicated this position psychologically with great power 
as well as delicacy of discrimination. He establishes by 
copious proof the fact that there are some temperaments 
which slight quantities of spirituous liquor make insane, and 
he argues that such persons, if drinking ignorantly, or en- 
trapped into drink, should be covered, pro tanto, with the im- 
munities of insanity. 
But, to constitute such mitigation of guilt, drunkenness 
must be involuntary in the sense above stated. A contrary 
doctrine was indeed intimated by Judge Robertson, of Ken- 
tucky, in an eccentric opinion already adverted to ;(V) but to 
view voluntary and an intentional drunkenness as an excuse 
is without authority either legal or psychological.(w) 
would have called for an acquittal if the obliquity of mind had arisen from 
any other cause. The judge ought to have charged, that, if a man makes 
himself voluntarily drunk, that is no excuse for any crime he may commit 
while he is so, and that he must take the. consequence of his own voluntary 
act. (Ilex v. Thomas, supra.) The charge, therefore, gave the prisoner the 
chance of an acquittal to which he was not entitled ; but this was not an error 
of which lie could take advantage.” See also Friery v. People, 54 Barbour, 
319 ; 2 Keyes, 424. 
In Com. ». Smith, 1 Duvall, 224, Judge Robertson startled the community 
by stating that drunkenness maybe an excuse for crime as a “transient 
insanity. ’ ’ When drunkenness is voluntary, this position is without warrant. 
For review see 23 Am. Jour, of Insan. 1. 
(u) Roberts v. People, 19 Mich. 401. 
(v) See §§ 34-60, 200. See essay by Dr. George Cook, 18 Am. Journ. of 
Ins. 321. See also 19 ibid. 448. 
(»‘) Smith v. Com., 1 Duvall, Ivy. 434. 
(w) See an able review in 23 Am. Journ. of Ins. 1; and see supra, § 200. 
221 §213] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
§ 212. The connection between drunkenness and insanity is 
thus stated by Griesinger: “That intoxication, when carried 
to a certain degree, as a dreamy condition with numerous 
hallucinations and illusions, really resembles insanity, is easily 
understood. Sometimes we see individuals who, after par- 
taking of a relatively small quantity of spirits, and without 
being in a state of deep intoxication, but retaining fully their 
consciousness, present a great tendency to commit very extra- 
vagant, noisy, and foolish acts; a circumstance which may be 
truly considered as a symptom of predisposition to mental 
disease. 
“Moreover, there occur in drunkards sudden convulsive 
states which resemble epileptic attacks, and which are some- 
times followed by a condition of forgetfulness and tranquil 
delirium, at other times by outbreaks of furious delirium, 
which has been termed the convulsive form of intoxication. 
“ The habitual drunkard, in whom the habit is already far 
advanced, presents also, even when he is not in a state of in- 
toxication, many signs which indicate the existence of an 
advancing chronic disease of the brain, and which make him 
closely resemble the mentally diseased. Indeed this condition 
may gradually pass into insanity, and particularly into de- 
mentia; and there are constantly found in the brains of 
habitual drunkards, as in many of the insane, the results of 
passive congestion—chronic opacities and thickenings of the 
cerebral membranes. The appetite acquired by habit is so 
powerful in the drunkard, the ideas which might oppose it are 
so weak, and the will has become so paralyzed, that he, even 
though he is aware that he renders himself despised and con- 
temptible, undermines his constitution, disturbs his domestic 
happiness, ruins his business, and every day postpones the 
good resolution which he perhaps has made. 
“ The craving, the dizziness, the dulness of the senses, the 
muscular feebleness, the stomach complaints from which he 
sutlers, are, each time he partakes, alleviated for the moment, 
and it may, perhaps, be partly owing to the fact that these 
disorders require each day to be remedied that drunkenness is 
often so inveterate.” 
§ 213. “Of all the various forms of chronic insanity, 
222 BOOK I.] 
INTOXICATION AS A DEFENCE. 
[§ 214 
drunkenness especially appears to possess much in common 
with general paralysis. Besides, incompletely developed forms, 
which in a medico-legal point of view are often very difficult 
to judge of, are very common. 
“These slight chronic mental anomalies observed in the 
drunkard are manifested by very apparent mental dulness, 
loss of the sense of duty, and in general of all the higher sen- 
timents: conscience and the sense of truth are blunted, the in- 
tellect is generally enfeebled, especially the memory, frequently 
slight or well-marked hallucinations also exist. Numerous 
other anomalies of the nervous system also present them- 
selves ; tremors of the hands and of the tongue, deadening of 
the sense of sight and of touch, debility of the genital organs; 
the patient has formications and cramps in the limbs, giddiness, 
sometimes epileptic attacks of greater or less severity; sooner 
or later marasmus and dropsy may set in, with the usual local 
affections (gastric disease, emphysema, cirrhosis of the liver, 
Bright’s disease, etc.). The children of drunkards very fre- 
quently die early from convulsions; many of them are idiots, 
imbeciles, or microcephalic; or in later life they present the 
same disposition to drunkenness, insanity, and crime.”^1) 
(c1) While intoxication per se is no defence to the fact of 
GUILT, YET, WHEN THE QUESTION OF INTENT OR PREMEDITATION 
IS CONCERNED, IT MAY BE PROVED FOR THE PURPOSE OF DETER- 
MINING THE PRECISE DEGREE. 
§ 214. This position should be very jealously guarded, since, 
as has already been remarked, there are few cases of premedi- 
tated violent homicide, in which the defendant does not pre- 
viously nerve himself for the encounter by liquor, and there 
would in future he none at all, if the fact of being in liquor at 
the time is enough to disprove the existence of premeditation. 
The true view, therefore, would seem to be, not that the fact 
of liquor having been taken is of any value at all on the 
question of intent or premeditation, but that when there is no 
evidence of premeditation aliunde, and where the defendant 
is proved at the time of the occurrence to be in a state of 
(w1) Greisinger’s Mental Path., Syden ed. (1867) § 100. 
223 224 
[book i. 
INSANITY AS A CRIMINAL DEFENCE. 
mental confusion of which drink was the cause, the fact of 
such mental confusion may be received to show either that 
there was no specific intent to take life, or that there w~as no 
positive premeditation. In the cases arising out of the sta- 
tutes resolving murder into two degrees, in which the distin- 
guishing test is a specific intent to take life, this position 
receives several pregnant illustrations. Thus, in the Phila- 
delphia riot cases of 1844, where it was shown that bodies of 
men were inflamed by sectarian and local prejudices, and 
blinded by a wild apprehension of danger to such an extent as 
to make them incapable of discrimination, or of precise or spe- 
cific purpose, it was held that they could not be considered as 
guilty of that species of “wilful and deliberate” murder which 
constitutes murder in the first degree.(rr) Precisely analo- 
gous to this is the case of the drunkard, who in a fight slays 
an antagonist without any sober reflection. In his intoxica- 
tion he is incapable of such mental action as the term “pre- 
meditate” describes. His mental condition may be such as to 
deprive him of the capacity to form a “ specific intent” either 
to take life, or to do anything else. And yet at the same time, 
at common law, the offence would, strictly speaking, fall under 
the head of murder, for it would possess the incident of malice, 
and would be without due provocation. Under such circum- 
stances the offence properly is to be ranked as murder in the 
second degree, and so has it repeatedly been decided by the 
courts.(y) 
(x) Wharton on Homicide, 371, 2. 
(y) Com. v. Jones, 1 Leigli, 612; Boswell v. Com., 20 Grattan, 860 ; Com. 
v. Hart, 2 Brewster, 546; Com. v. Haggerty, Lewis’ C. L. 403 ; Pirtle 0. 
State, 9 Hump. 434; Swan v. State, 4 Hump. 131; Penns, v. Fall, Addison, 
257; People v. Hammill, 2 Parker, C. C. (N. Y.) 223; People 0. Kobinson, 
ibid. 235; State 0. Harlowe, 2 Mis. (6 Bennett), 446. In a case in Tennes- 
see, the court thus speak: “Upon the trial, there was evidence that the 
prisoner was intoxicated at the time he committed the homicide. Upon the 
subject of the defendant’s intoxication he told the jury that ‘ voluntary intoxi- 
cation is no excuse for the commission of crime ; on the contrary it is consid- 
ered by our law as rather an aggravation ; yet, if the defendant was so deeply 
intoxicated by spirituous liquors at the time of the killing as to be incapable 
of forming in his mind a design deliberately and premeditately to do the act, 
the killing under such a state of intoxication would only be murder in the 
second degree.’ It is insisted that his honor did not state the principle upon 
224 BOOK I.] 
INTOXICATION AS A DEFENCE. 
[§ 215 
§ 215. The same general view is taken as to the question of 
intent. Thus it is now the settled rule in England, that, though 
this subject, as it has been ruled by this court. In the case of Swan v. The 
State, Judge Reese, who delivered the opinion of the court, says: ‘But, 
although drunkenness in point of law constitutes no excuse or justification for 
crime, still, when the nature and essence of a crime are made to depend by law 
upon the peculiar state and condition of the criminal’s mind at the time, and 
with reference to the act done, drunkenness, as a matter of fact, affecting 
such state and condition of the mind, is a proper subject for consideration and 
inquiry by the jury. The question in such case is, what is the mental status ? 
Is it one of self-possession, favorable to a fixed purpose, by deliberation and 
premeditation ; or did the act spring from existing passion, excited by inade- 
quate provocation, acting, it may be, on a peculiar temperament, or upon one 
already excited by ardent spirits ? In such a case it matters not that the 
pi’ovocation wTas inadequate, ar the spirits voluntarily drank ; the question is, 
did the act proceed from sudden passion, or from deliberation or premedita- 
tion ? What was the mental status at the time of the act, and with reference 
to the act ? To regard the fact of intoxication as meriting consideration in 
such a case, it is not to hold that drunkenness will excuse crime, but to 
inquire wThetlier the very crime which the law defines and punishes has been 
in point of fact committed. In these remarks the court intend to be under- 
stood as distinctly indicating, that a degree of drunkenness by which the 
party wTas greatly excited, and which produced a state of mind unfavorable 
to deliberation and premeditation, although not so excessive as to render the 
party absolutely incapable of forming a deliberate purpose, might be taken 
into consideration by a jury, in determining whether the killing was done 
with premeditation and deliberation.’ The whole subject was ably reviewed 
by Judge Turley, in the case of Pirtle v. The State. In delivering the opinion 
of the court in that case, the judge says, at page 671: ‘It will frequently 
happen necessarily, when the killing is of such a character as the common 
law designates as murder, and it has not been perpetrated by means of poison, 
or by lying in wait, that it will be a vexed question, whether the killing has 
been the result of sudden passion produced by a cause inadequate to mitigate 
it to manslaughter, but still sufficient to mitigate it to murder in the second 
degree, if it be really the true cause of the excitement, or whether it has been 
the result of premeditation and deliberation ; and in all such cases, whatever 
view is able to cast light upon the mental status of the offenders is legitimate 
proof: and among others, the fact that he was at the timfi drunk; not that 
this will excuse and mitigate the offence, if it were done wilfully, deliberately, 
maliciously, and premeditately (which it might well be, though the perpe- 
trator was drunk at the time); but to show that the killing did not spring 
from a premeditated purpose, but sudden passion, excited by inadequate prov- 
ocation, such as might reasonably be expected to arouse sudden passion and 
heat, to the point of taking life, without premeditation and deliberation.’ 
Here the court explicitly lays down the rule to be, that in all cases where the 
question is between murder in the first and murder in the second degree, the 
vol. i.—15 
225 §215] 
INSANITY. 
[book i. 
drunkenness is no excuse for crime, it may be taken into ac- 
count by the jury when considering the motive or intent of a 
fact of drunkenness may be proved, to shed light upon the mental status of 
the offender, and thereby to enable the jury to determine whether the killing 
sprung from a premeditated purpose, or from passion excited by inadequate 
provocation. And the degree of drunkenness which may then shed light 
upon the mental state of the offender, is not alone that excessive state of in- 
toxication, which deprives a party of the capacity to frame in his mind a 
design deliberately and premeditately to do an act; for the court says that, in 
the state of drunkenness referred to, a party well may be guilty of killing 
wilfully, deliberately, maliciously, and premeditately ; and, if he so kill, he is 
guilty as though he were sober. The principle laid down by the court is, 
that, when the question is, can drunkenness be taken into consideration in de- 
termining whether the party be guilty of murder in the second degree, the 
answer must be, that it cannot; but, when the question is, what were the 
actual mental state of the perpetrator, at the time the act was done, was it 
one of deliberation and perpetration, then it is competent to show any degree 
of intoxication that may exist, in order that the jury may judge, in view of 
such intoxication, in connection with all the other facts and circumstances, 
whether the act was premeditately and deliberately done. The law often 
implies malice from the manner in which the killing was done, or the weapon 
with which the blow was stricken. In such case it is murder, though the 
perpetrator were drunk. And no degree of drunkenness will excuse in such 
case, unless by means of drunkenness an habitual or fixed madness be 
caused. The law in such cases does not seek to ascertain the actual state of 
the perpetrator’s mind, for, the fact from which itis implied having been proved, 
the law presumes its existence, and proof in opposition to this presumption 
is irrelevant and inadmissible. Hence a party cannot show he was so drunk 
as not to be capable of entertaining a malicious feeling. The conclusion of 
law is against him. But, when the question is, whether a party is guilty of 
murder in the first degree, it becomes indispensable that the jury should form 
an opinion as to the actual state of mind with which this act was done. All 
murder in the first degree (except that committed by poison, and by lying in 
wait), must be perpetrated wilfully, deliberately, maliciously, and premedi- 
tately. The jury must ascertain, as a matter of fact, that the accused was in 
this state of mind when the act was done. Now, according to the cases of 
Swan v. The State, and Pirtle ®. The State, any fact that will shed light upon 
this subject may be looked to by them, and may constitute legitimate proof 
for their consideration. And among other facts, any state of drunkenness 
being proved, it is a legitimate subject of inquiry, as to what influence such 
intoxication might have had upon the mind of the offender, in the perpetra- 
tion of the deed. We know that an intoxicated man will often, upon a 
slight provocation, have his passions excited and rashly perpetrate a criminal 
act. Now, it is unphilosophical for us to assume that such a man would, in 
the given case, be chargeable with the same degree of premeditation and 
deliberation that we would ascribe to a sober man, perpetrating the same act 
226 BOOK I.] 
INTOXICATION AS A DEFENCE. 
[§ 216 
person acting under its So where, on the trial of 
an indictment for an attempt to commit suicide, it appeared 
that the prisoner was at the time of the alleged offence so 
drunk that she did not know what she did: it was held that 
this negatived the attempt to commit suicide.(a) So, also, in 
an Ohio case, it was very properly held, that, when the charge 
was knowingly passing counterfeit money with intent to cheat, 
the drunkenness of the defendant at the time of the offence 
was a fit subject for the consideration of the jury, there being 
no ground to suppose that the defendant knew the money to 
be counterfeited before he was drunk.(6) And when in England 
the defendant was indicted for an attempt to commit suicide 
by drowning, and it was alleged that she was at the time un- 
conscious of the nature of her act from drunkenness, Jervis, 
C. J., said to the jury: “ If the prisoner was so drunk as not 
to know what she was about, how can you find that she 
intended to destroy herself V\c) So again, when the charge 
was assault with intent to murder, Patterson, J.,said: “A 
person may be so drunk as to be utterly unable to form any 
intention at all, and yet he may be guilty of very great 
violence. If you are not satisfied that the prisoners, or either 
of them, had formed a positive intention of murdering the 
child, you may find them guilty of an assault.(<i) 
§ 216. Beyond this the advance has been fluctuating. The 
upon a like provocation. It is in this view of the question, that this court 
held, in Swan’s case and in Pirtle’s case, that the drunkenness of a party- 
might be looked to by the jury, with the other facts in the case, to enable 
them to decide whether the killing were done deliberately and premeditately. 
But his honor, the Circuit Judge, told the jury, that drunkenness was an 
aggravation of the offence, unless the defendant was so deeply intoxicated as 
to be incapable of forming in his mind a design deliberately and premeditately 
to do the act. In this charge there is error, for which the judgment must be 
reversed. Reverse the judgment, and remand the cause for another trial.” 
Hale 0. State, 11 Humph. 154. 
(z) R. 0. Gamlen, 1 P. & F. 90. 
(a) R. «. Moore, 3 C. & K. 319 ; 16 Jur. 750. 
(5) Pigman 0. State, 14 Ohio, 555 ; affirmed, but limited, in Nichols 0. 
State, 8 Ohio S. R. (N. S.) See also U. S. v. Roudenbush, 1 Bald. 514. 
(c) R. 0. Moore, reported 6 Law Rep. (N. S.) 581. 
(cZ) R. 0. Cruse, 8 C. & P. 541. 
227 228 
INSANITY. 
[book i. 
furthest step taken was in an English case, decided in 1819,(e) 
where Holroyd, J., is reported by Sir W. Russell, who adopts 
his opinion as text law, to have said, that the fact of drunk- 
enness might be taken into consideration to determine the 
question whether an act was premeditated or done only with 
sudden heat and impulse. This would make drunkenness an 
item in every question of provocation or hot blood, and would 
of course open the way to the same difficulties as to general 
policy, which we have already pointed out in another con- 
nection. In 1835, however, this case was expressly repudiated 
by Parks, J., who said, in referring to Holroyd, J.’s, language, 
as just given, “Highly as I respect that late excellent judge, 
I differ from him, and my brother Littledale agrees with me. 
He once acted upon that case, but afterwards retracted his 
opinion.' There is no doubt that that case is not law. I think 
there would be no safety in human life, if it were to be con- 
sidered as law.”(/) But the very next year, Alderson, B., in a 
case of stabbing, retraced at least a part of the retreat which 
had been thus so emphatically sounded. “ It is my duty to 
tell you,” he said, “ that the prisoner being intoxicated does 
not alter the nature of the offence. If a man chooses to get 
drunk, it is his own voluntary act; it is very different from a 
madness which is not caused by any act of the person. That 
voluntary species of madness which it is in a party’s power to 
abstain from, he must answer for. However, with regard to the 
intention, drunkenness may perhaps be adverted to according to the 
nature of the instrument used. If a man uses a stick, you would 
not infer a malicious intent so strongly against him, if drunk, when 
he made an intemperate use of it, as you would if he had used a 
different kind of weapon ; but, where a dangerous instrument is 
used, which, if used, must produce grievous bodily harm, drunk- 
enness can have no effect on the consideration of the malicious 
intent of the party.”(g) Perhaps this is doing no more than 
reiterating the principle we have already announced, that, when 
there is evidence of sober premeditation, intermediate drunk- 
enness cannot be received to affect the question of intent; 
(e) R. v. Grindley, 1 Rus. on Cr. 8, note n. 
(/) R. v. Carrol, 7 C. & P. 145. (y) R. e. Meakin, 7 C. & P. 297. 
228 BOOK I.] 
[§ 217 
INTOXICATION ,AS A DEFENCE. 
but that, when there is no such evidence, it can. And it 
would not be right to strain farther than this the following 
charge, in 1837, by Parke, B. (to be distinguished from Park, 
J., whose opinion, two years before, has been just noticed): 
“ I must tell you, that, if a man makes himself voluntarily 
drunk, that is no excuse for any crime he may commit while 
he is so ; he must take the consequence of his own voluntary 
act; or most crimes would otherwise be unpunished. But 
drunkenness may be taken into consideration in cases where 
what the law deems sufficient provocation has been given ; 
because the question is, in such cases, whether the fatal act is 
to be attributed to the passion of anger, excited by the pre- 
vious provocation, and that passion is more easily excitable in 
a person when in a state of intoxication, than when he is sober. 
So, where the question is, whether words have been uttered 
with a deliberate purpose, or are merely low and idle ex- 
pressions, the drunkenness of the person uttering them is 
proper to be considered. But, if there is really a previous 
determination to resent a slight affront in a barbarous manner, 
the state of drunkenness in which the prisoner was ought not 
to be regarded, for it would furnish no excuse. You will 
decide whether the subsequent act does not furnish the best 
means of judging what the nature of the previous expression 
really was ”(h) 
§ 217. The American cases present the same general result, 
depending in principle, if not in terms, on the position that, 
where the encounter was sudden, and the defendant, prior to 
such encounter, had no malice or old grudge, intoxication at 
the time of the encounter can be taken into consideration, to 
ascertain whether the defendant when under a legal provoca- 
tion, acted from malice or from sudden passion.(z) These cases 
have been arranged as follows, by a learned writer.(j) 
“ In 1848 the question of intoxication was before the Su- 
preme Court of Alabama, on an indictment for an assault with 
intent to kill. The court was asked in that case to charge the 
(A) R. v. Thomas, 7 C. & P. 817. 
(i) See Schaller v. State, 14 Mis. 502. 
(j) 6 Law Rep. (1ST. S.) 55G, etc. 
229 § 217] 
INSANITY. 
[book i. 
jury, that, ‘although drunkenness does not incapacitate a man 
from forming a premeditated design of murder, yet, as it clouds 
the understanding and excites passion, it might be evidence of 
passion only, and of a want of malice and design.’ This the 
court refused, but told the jury that ‘ drunkenness could have 
no effect in their consideration.’ The prisoner excepted, and, 
on the hearing in full court, Chilton, J., declared that it was 
a general rule, that, although drunkenness reduces a man to 
a state of temporary insanity, it does not excuse him, or 
palliate an offence committed in a fit of intoxication, and 
which is the immediate result of it; and that, if the prisoner 
had killed the deceased with the deadly weapon (a knife) with 
which he stabbed -him, in a state of intoxication, the crime 
would not have been reduced from murder to manslaughter by 
his intoxication, which must he presumed, in absence of con- 
trary evidence, to be voluntary; and the court remark, upon 
the cases of Penna v. Hutall,(&) and Swan v. The State,(l) 
that there it was important to ascertain whether the homicide 
was that ‘ wilful, deliberate, malicious, and premeditated killing,’ 
which, by statute, constituted murder in the first degree. The 
mental state required from that crime, being one of delibe- 
ration and premeditation, the fact of the prisoner’s drunken- 
ness was material, not as an excuse for the crime, but to show 
it had not been committed. The State v. Bullock.(?u) Possibly 
this case may have gone too far in refusing to allow drunken- 
ness to be given in evidence upon the question of intention. 
The Supreme Court of fSTorth Carolina has declared the same 
law. In 1848 a prisoner was indicted for murder. One de- 
fence was drunkenness. The judge told the jury that drunk- 
enness would not lessen the prisoner’s guilt, if they believed 
him sane before he became drunk. A new trial being moved 
for, on the ground of misdirection, Battle, J., said: ‘All the 
writers on the criminal law, from the most ancient to the most 
recent, so far as we are aware, declare that voluntary drunk- 
enness will not excuse a crime committed by a man other- 
wise sane, while acting under its influence. Even the cases 
(&) Add. 257. (0 4 Humpli. 136. 
(to) 13 Alabama, 413, A.D. 1848. 
230 BOOK I.] 
INTOXICATION AS A DEFENCE. 
[§ 218 
relied on by the counsel for the prisoner, Rex v. Meaki 11,(92) 
Rex v. Thomas,(o) all acknowledge the general rule ; hut they 
say that, when a legal provocation is proved, intoxication may 
be taken into consideration, to ascertain whether the slayer 
acted from malice or from sudden passion excited by the provo- 
cation. Whether the distinction is a proper one or not, we do 
not pretend to say. It has been doubted in England (Rex v. 
Carroll),(p) and it is a dangerous one, and ought to be received 
with great caution. But, whether admitted or not, it has no 
bearing upon the present case. There is not a particle of tes- 
timony to show that the prisoner was acting, or can be supposed 
to have been acting, under a legal provocation ; and there was 
therefore no cause for the application of the principle for which 
the counsel contends. The State v. The case of Preble 
v. State (r) is an important case on this point. The defendant 
was indicted for murder. At the time of the commission of 
the offence he was intoxicated from the use of ardent spirits. 
And in relation thereto the judges charged the jury, that the 
fact of such drunkenness could not be taken into consideration 
by them, unless the defendant was so far gone as not to be 
conscious of what he was doing, and did not know right from 
wrong. “ Out of this charge,” said Turley, J., “ arises the 
point to be considered by the court in this case, and that is, 
how far drunkenness in law is a mitigation or excuse for the 
commission of offences. This is no new question, presented 
for the first time for consideration, but one of the earliest con- 
siderations in the law of offences; one which has been again 
and again adjudicated by the courts of Great Britain and the 
United States, and, as we apprehend, with a consistent uni- 
formity rarely to be met with in questions of a like interest 
and importance. Upon the subject we have nothing to dis- 
cover ; no new principle to lay down; no philosophical inves- 
tigation to enter into, in relation to mental sanity or insanity; 
but only to ascertain how the law upon this subject has been 
heretofore adjudged, and so to adjudge it ourselves.” ’ 
§ 218. “ In the case of Cornwall v. The State of Tennessee,(s) 
<7i) 7 C. & P. 297. (o) Ibid. 817 ; 1 Eussell on Crimes, 8. 
(p) 7 C. & P. 145. (7) 8 Jud. 330. 
(r) 9 Hump. 663, A.D. 1849. (s) Mar. & Yer. 147, 149. 
231 § 218] 
INSANITY. 
[book i. 
the able judge who delivered the opinion of the court, in 
speaking upon this subject, uses the following very emphatic 
language:— 
“ ‘ A contrary doctrine ought to be forced out of circulation, 
if it has obtained it, by every friend to virtue, peace, quietness, 
and good government. All civilized government s must pun- 
ish the culprit who relies on so untenable a defence ; and, in 
doing so, they preach a louder lesson of morality to all those 
who are addicted to intoxication, and to parents and guard- 
ians, and to youth and to society, than comes in the cold 
abstract from pulpits. To the justness and correctness of these 
remarks, all who have had experience in the annals of crime 
can bear testimony. It is only at the present term of the court 
that we have seen it proven that an offender, a short time 
before the perpetration of a horrid murder, inquired of a 
grocery-keeper what kind of liquor would make him drunk 
soonest, and swallowed thereon a bumper of brandy. We have 
had three cases of murder, and one of an assault with intent 
to murder, before us at this term of court, in every one of 
which these are convictions in the Circuit Court and affirm- 
ances in this, every one of which is of aggravated character, 
and in every one of which the perpetrator, at the time of the 
commission of the offence, was laboring under dementia affectata, 
drunkenness; an awful illustration of the necessity of holding 
to the law as it has been adjudged upon this subject. There is 
in our judgment, no conflict of authority upon this point of 
law; every case which may have such appearance being a case 
of exception on the application of the rule, or a case of no 
authority upon the subject. Lord Hale, in his work before 
referred to^s1) says: “ If, by means of drunkenness, an habitual 
or fixed madness be caused, that will be excuse, though it be 
contracted by the vice and will of the party; for this habitual 
or fixed frenzy puts a man in the same condition as if it were 
contracted at first involuntarily.” And it was to this principle 
the circuit judge was alluding, when he charged the jury, in 
the present case, that the drunkenness of the prisoner could 
not be taken by them into consideration, unless he were so far 
(s') P. C. pt. 1, cli. 4. See ante, § 67. 
232 BOOK I.J 
INTOXICATION AS A DEFENCE. 
[§ 219 
gone as to be unconscious of what he was doing, and did not 
know right from wrong, in saying which he put the case most 
favorable for the prisoner; for a man may be so intoxicated as 
to be unconscious of what he is doing, and not to know right 
from wrong; and yet not have contracted an habitual and 
fixed frenzy, the result of intemperance, of which Lord Hale 
is speaking above.’ ” 
§ 219. In Kelly v. State,(t) the same question came before 
the High Court of Error and Appeals of Mississippi. The 
court below declined to charge the jury that intoxication was 
evidence of intention in determining whether the killing was 
murder. The prisoner was convicted of manslaughter only, 
but the court above, in remarking upon this question, lays 
down the law as well established, that drunkenness is no 
excuse for crime, although sometimes held proper for consid- 
eration, where the sole question is whether the act done was 
premeditated or done only with sudden heat or impulse, which 
might be as truly said of anger or any other excitement arising 
from sudden provocation or peculiar circumstances; that not 
much importance was to be attached to it, as might be con- 
ceived from the presumption, which was equally great, that 
the design might have previously existed, and intoxication 
have been employed to nerve the criminal to the commission 
of the crime; that the law discriminates between the delusion 
of intoxication and the insanity which it may ultimately pro- 
duce. If drunkenness, they said, were to be considered an 
excuse for crime there would be established a complete eman- 
cipation from criminal justice. 
The same principle was recognized in Horth Carolina in 
State v. M’Cante,(w) being somewhat differently applied. The 
court here held, “ that, if a crime was committed upon a prov- 
ocation, which, if acted upon instantly by a sober man, would 
mitigate his offence, evidence of intoxication was admissible 
upon the question whether such provocation was, in fact, acted 
upon when the act was done. If a man uses a stick upon you, 
you would not infer a malicious intent so strongly against him 
if drunk when he made an intemperate use of it as you would 
(0 3 Smedes & Marshall, 518, 1844. 
(u) Spear, 384. 
233 § 220] 
[book I. 
INSANITY. 
if lie had used a different kind of weapon. But where a dan- 
gerous instrument is used, which if used must produce griev- 
ous bodily harm, drunkenness ean have no effect on the consid- 
eration of the malicious intent of the party.” 
§ 220. In a case in Tennessee, already cited,(v) it was said 
by Turley, J.: “The case of R. v. Grindley, decided at Wor- 
cester Sum. Ass., 1819, by Holroyd, J., not reported but 
referred to by Russell in his work upon Crimes, page 8, and 
now insisted upon by the prisoner as putting the circuit judge 
in the wrong in liis charge to the jury, and holding different 
principles upon this subject, is expressly overruled by Park 
and Littledale, judges, in the case of R. v. Carroll ;(w) and, if 
it were not, it is an anomalous case, and perhaps was not in- 
tended or considered by Ilolroyd to be in conflict with princi- 
ples so well and so long settled. The case, as stated by Russell, 
holds, that, ‘ though voluntary drunkenness cannot excuse from 
the commission of crime, yet, when upon a charge of murder 
the material question is whether an act was premeditated or 
done only with sudden heat and impulse, the fact of the party 
being intoxicated is a circumstance proper to be taken into 
consideration.’ Row, in relation to this principle, as thus laid 
down, it may be observed that cases may arise, even of murder 
at common law, in which it would be proper to receive such 
proof as explanatory of intention. To constitute murder at 
common law, the killing must have been done with malice 
aforethought; the existence of this malice necessarily implies 
the absence of all circumstances of justification, excuse, or 
mitigation arising from adequate provocation; and this malice 
is either express or implied: express, when it has been perpe- 
trated by poison, lying in wait, or other deliberate and pre- 
meditated manner; implied, from the nature of the weapon, 
the violence of the assault, and the inadequacy of the provoca- 
tion. It may become important in a case to know whether 
poison which has been imbibed was administered knowingly 
and designedly or accidentally. And, if it be wilful (which it 
is in the case of a medicine, there being two on the table, one 
a poison and the other not, and the poison be administered), is 
(®) Pirtle v. State, 9 Harap. 603. 
(w) 7 C. & P. 145. 
234 BOOK I.] 
[§ 221 
INTOXICATION AS A DEFENCE. 
not the fact that the person who administered it was drunk at 
the time legitimate proof for the purpose of showing that it 
was a mistake which a drunken man might make, though a 
sober one would not ? This would be, not to protect him from 
the punishment for his crime, hut to show that he had not 
given the poison premeditately, and therefore was guilty of no 
crime. So, if the question he whether the killing is murder or 
manslaughter, the defence being adequate provocation, and it 
be doubtful whether the blow be struck upon the provocation 
or upon an old grudge, it seems to us, proof that the prisoner 
was drunk when he struck the blow is legitimate, not to miti- 
gate the offence, but in explanation of the intent—that is, 
whether the blow was struck upon the provocation or upon 
the old grudge; for the law only mitigates the offence to man- 
slaughter, upon adequate provocation, out of compassion to 
human frailty; and therefore, though there be adequate cause 
for such mitigation, yet if, in point of fact, one avail himself 
of it to appease an old grudge, it is murder and not man- 
slaughter; and in all such cases the question necessarily is 
whether the blow was stricken premeditately, or upon sudden 
heat and impulse produced by the provocation, and the fact of 
the self-possession of the perpetrator of the crime is very 
material in a conflict of proof upon the subject. If this be the 
extent of the opinion of Ilolroyd, in the case of Rex v. Grind- 
ley, we are not prepared to hold that it is not law. But, if it 
be understood to hold that a killing may be mitigated from 
murder to manslaughter in consequence of the drunkenness of 
the perpetrator, thereby making that adequate provocation in 
the case of a drunken man which could not be so in the case 
of a sober one, we are prepared to hold, with Park and Little- 
dale, that it is not law.” 
§ 221. In 1858, on an indictment for maliciously stabbing 
with an intent to kill, the Supreme Court of Ohio said:— 
“ Bid the court below err in holding, as it did substantially, 
that, in a case of this kind, the intoxication of the accused had 
nothing to do with the question of malice ? 
“ This is a question much more difficult and serious than 
the preceding, and in respect to which our minds have not 
been free from doubt; but, after a long and somewhat anxious 
235 §221] 
INSANITY. 
[book i. 
deliberation, we have unanimously come to the conclusion 
that there was no error in the charge of the court below on 
this point. 
“All authorities agree that drunkenness is no excuse for 
crime. Crime, when all the acts of hand and mind which con- 
stitute it actually exist, is not the less criminal when committed 
by a person intoxicated. A drunken malice is as dangerous, 
and may be quite as wicked, as a sober malice; and it is a 
sorry consolation to a sufferer from a murderous stab, and to a 
community which is responsible for his protection, to be told 
that the act was done by a man who was bound in morals to 
keep sober, and who had the power to keep sober, but who had 
become voluntarily drunk. Nevertheless, it has been held, in 
this State, that, where a peculiar knowledge was an element of 
the guilty act, requiring nice discrimination and judgment, as 
in passing a counterfeited bank-bill knowing it to be counter- 
feited, and where deliberation and premeditation are necessary 
ingredients of the crime, as in murder in the first degree, evi- 
dence of intoxication is admissible, and proper to be taken into 
consideration by the jury, in determining the question as to 
the guilty knowledge in the one case, and as to the delibera- 
tion and premeditation in the other. So, if the accused was so 
drunk as not to know what he was doing, the fact of intoxica- 
tion may doubtless be given in evidence for what it is worth 
for the purpose of showing that he did not intend at the time 
to do what in fact he did do.(:r) So far as we are advised, 
there is no reported case in Ohio requiring us to go beyond 
this; and to this extent, on a fair construction of the language 
of the court below in charging the jury, the prisoner, in the 
case before us, had the benefit of the evidence in regard to his 
state of intoxication. And this, too, seems to be the full extent 
to which we are led by the general current of authorities in 
other States. 
“We will not say but that, admitting the correctness of 
these decisions, a refined and rigid logical theory might not 
require us to go further. But here the authorities authorize 
us to stop; and here we think a proper regard to the public 
(x) Pigman v. The State, 14 Ohio Rep. 555 
236 book 1.] 
INTOXICATION AS A DEFENCE. 
[§ 223 
safety in the practical administration of criminal justice re- 
quires that we should stop. This kind of evidence is at best, 
and in any case, of dangerous tendency in its practical appli- 
cation. Intoxication is easily simulated. It is often volun- 
tarily induced for the sole purpose of nerving a wicked heart 
to the firmness requisite for the commission of a crime soberly 
premeditated, or as an excuse for such a crime. Yet these 
pre-existing dispositions may be difficult or impossible to 
prove. And when we admit evidence of intoxication to rebut 
a guilty knowledge requiring nice deliberation and judgment, 
to rebut a charge of deliberation and premeditation, and to 
show that the accused did not at the time intend to do the 
act which he did do, we think we have gone far enough; and 
that, looking to the practical administration of the criminal 
law, a due regard to the public safety requires that the mere 
question of malice should be determined by the circumstances 
of the case, aside from the fact of intoxication, as in other 
cases.’’(y) 
§ 222. These views have been subsequently repeatedly af- 
Thus it has been ruled in California, that a person 
charged with the commission of a crime may introduce evi- 
dence to show that he was intoxicated at the time he com- 
mitted the act, not as an excuse for the crime, but to enable 
the jury to determine whether his mental condition was such 
that he knew he was committing an offence.(a) 
§ 223. So, in Kentucky, where, on an indictment for mur- 
der, the court below charged the jury, inter alia, that “drunk- 
enness can never be received as a ground to excuse or palliate 
a crime.” Judge Robertson, in the Supreme Court, held this 
charge to be delusive and erroneous. “ Intoxication may stul- 
tify and partially demonize its victim, dethroning reason, 
rousing volcanic passions, and either paralyzing or perverting 
(y) Nicliols v. State, 8 Ohio St. 435, citing Com. v. Jones, 1 Leigh, G12; 
Com. v. Haggerty, Lewis C. L. 403 ; Pirtle v. The State, 9 Humph. 664; 
Haile v. The State, 11 Humph. 154. 
(2) See supra, § 200; Smith v. Com., 1 Duvall (Ivy.), 224; People v. 
Lewis, 36 Cal. 531 ; State v. Gut, 13 Minnis. 341, and cases cited infra. 
(a) People v. Harris, 29 Cal. 678. See also People v. Belencia, 21 Cal. 544; 
People v. King, 27 Cal. 307. 
237 238 
INTOXICATION AS A CRIMINAL DEFENCE. 
[book i. 
the will, and therefore, unless brought on for a malicious pur- 
pose, it may he, when disabling, entitled to some influence on 
the question of malice and free volition. When and how far 
it should have any such influence, must depend on its motive, 
its degree, and its effect on the mind and the passions. This 
qualified doctrine seems to us to be dictated by policy and 
humanity, and sanctioned by reason and modern authority. ”(6) 
In the same State it is held that on a prosecution for murder, 
it satisfactorily appearing that the prisoner was drunk, the 
court ought to so instruct the jury that, in determining the 
question of malice and mitigation, they should consider the 
defendant’s condition at the time of the homicide.(c) 
§ 224. So, in Minnesota, on an indictment for an assault 
with intent to do great bodily harm, being armed with a dan- 
gerous weapon, the counsel for the defendant in the court 
below asked the court to charge the jury that “ if they believed, 
from the evidence, that the prisoner was in such a state of 
mind, from any cause, that he did not know what he was 
doing, they could not rightfully convict of the charge in the 
indictment.” This instruction was given with the qualifica- 
tion that, if “ the defendant did not know what he was doing 
from being in a state of insensibility, the jury could not con- 
vict ; otherwise, if from excitement or madness the immediate 
consequence of strong drink.” The Supreme Court held this 
to be erroneous, and Wilson, Ch. J., said, “It is not pretended 
that intoxication is in any case an excuse for crime, but, when 
the intention of the party is an element of the crime, insanity 
of any kind, from any cause, which renders the party inca- 
pable of forming any intention, and which is not voluntarily 
induced with a view to the commission of a crime while in 
that state, may be given in evidence to show that he is not 
guilty of the specific crime with which he is charged.” It 
was a question for the jury whether he had the intent or not.(<i) 
§ 225. So, in Alabama, Walker, J., said: “Drunkenness 
certainly does not excuse or palliate any offence. But it may 
(5) Golliker v. Com., 2 Duvall (Ky.), 163. 
(c) Curry v. Com., 2 Busli (Ky.), 67. 
(cZ) State v. Garvey, 11 Minn. 154. 
238 BOOK I.] 
INSANITY AS RELATED TO LIFE INSURANCE. 
[§ 228 
produce a state of mind in which the accused would be totally 
incapable of entertaining or forming the positive or particular 
intent requisite to make out the offence. In such a case, the 
accused is entitled to an acquittal of the felony, not because of 
his drunkenness, but because he was in a state of mind, result- 
ing from drunkenness, which affords a negation of one of the 
facts necessary to his conviction. ”(e) 
§ 226. Savigny, with his usual acuteness, has touched upon 
an interesting distinction in this respect. The idea, he argues, 
that a man may make himself voluntarily drunk in order to 
commit a crime, and then, when fully unconscious, may com- 
mit such crime, involves a contradiction. If fully unconscious, 
he is incapable of executing any prior design, and is so far irre- 
sponsible. But if, having made himself drunk in order to 
break the law, he retains his consciousness, however much ex- 
cited, drunkenness does not even palliate.(/) 
§ 227. It has been ruled, that, in cases of larceny, evi- 
dence of voluntary intoxication just before and at the time of 
the commission of the alleged offence is not admissible. In 
ruling this point in Indiana, Perkins, J., said: “In cases both 
civil and criminal, where malice is an ingredient of the charge, 
it seems that simple intoxication may be given in evidence to 
rebut it; but this principle does not seem to be extended to 
the ingredient of intention. ”(^) 
E. Insanity as related to life insurance. 
§ 228. As an exception, in the usual policies of life insur- 
ance, is made of those cases in which the insured dies “by his 
own hand,” or by “ suicide,” two inquiries of much interest in 
forensic medicine are likely to thence arise. The first, which 
will hereafter be discussed under another head, is, “ was the 
death suicidal, or natural, or homicidal V\a) 
(e) Mooney ®. State, 33 Ala. 419. 
(/) The canon law thus speaks :— 
Nesciunt, quid loquantur, qui nimio vino indulgent: iacent sepulti: ideoque, 
si qua per vinum deliquerint, apud sapientes indices venia quidem facta donan- 
tur, sed levitatis damnantur auctores. 
(g) Dawson v. State, 16 Indiana, 428. 
(a) Dr. Taylor (Taylor’s Med. Jur., Penrose’s ed., 755) gives at large a 
case tried before Lord Tenterden, in 1832, in which the question was simply 
239 240 
INSANITY AS RELATED TO LIFE INSURANCE. 
[BOOK I. 
§ 229. Tlie second, which now is to be considered, is, in 
cases of suicides, “ was the self-killing the result of insanity ?” 
and, if so, “ is the case within the exception of the policy ?” 
§ 230. The question, whether self-killing alleged to he insane 
is within the exception above stated, was first made before the 
English Common Pleas, in 1842.(6) It appeared that the Rev. 
William Borradaile, vicar of Wandsworth, effected in 1828, in 
the defendant’s office, an insurance on his life for £1000, the 
policy containing an exception in case the insured “ should die 
by his own hands.” In 1838, the insured, being, it was 
claimed at the time, of unsound mind, cast himself from Yaux 
Hall bridge into the Thames, and was drowned. In an action 
on the policy, the jury found that the insured “ voluntarily 
threw himself into the river, knowing at the time that he 
should thereby destroy his life, and intending thereby to do so, 
but that at the time of committing the act he was not capable 
of judging between right and wrong.” It was held by Maule, 
Erskine, and Coltman, JJ., that on this verdict judgment 
should be entered for the defendant. Two of the judges laid 
much stress on the fact that the words “die by his own hands,” 
and not “suicide,” were used in the exception. “When I 
find,” says Erskine, J., “the terms ‘shall commit suicide,’ 
that have been popularly understood and judicially considered 
as importing an act of criminal self-destruction, exchanged for 
words not hitherto so construed, it may, I think, be fairly 
inferred that the terms adopted were intended to embrace all 
cases of intentional self-destruction, unless it can be collected 
from the immediate context that the parties used them in a 
more limited sense.” 
§ 231. In 1846,(c) the question came before the Exchequer 
Chamber on the following facts. Louis Schwabe, in 1836, 
insured his life for £999 in the defendant’s office, the excep- 
tion in this case being that “ every policy effected by a person 
between suicide and apoplexy, and in which the presumption, where the evi- 
dence is doubtful, seems to have been held to be in favor of a natural mode 
of death. 
(5) Borradaile v. Hunter, 5 Scott N. R. 418; S. C., 1 Man. & G. G39. 
See 2 Bigelow Life Ins. Rep. 280. 
(c) Clift v. Schwabe, 3 C. B. 437; 2 Bigelow Life Ins. Rep. 312. 
240 BOOK I.] 
INSANITY AS RELATED TO LIFE INSURANCE. 
241 
on liis own life shall be void, if such person shall commit suicide, 
or die by duelling, or the hands of justice.” Schwabe died in 
1845, and, on a suit on the policy, it was shown that he vol- 
untarily poisoned himself with sulphuric acid, under circum- 
stances tending to show that he was of unsound mind. On 
the trial, Creswell, J., charged the jury, “that, in order to find 
the said issue for the defendants, it was necessary that the jury 
should be satisfied that Schwabe died by his own voluntary 
act, being then able to distinguish between right and wrong, 
and to appreciate the nature and quality of the act that he was 
doing, so as to be a responsible moral agent; that the burden 
of proof as to his dying by his own voluntary act was on the 
defendants, but, that being established, the jury must assume 
that he was of sane mind, and a responsible moral agent, un- 
less the contrary should appear in evidence.” It was held, on 
a bill of exception, by Bolfe, Patteson, Alderson, and Parke, 
JJ., (Wightman, J., and Pollock, C. B., dissenting) that this 
direction wTas erroneous, and that the law, as stated by 
Rolfe, B., was, “ that every act of self-destruction is, in com- 
mon language, suicide, provided it be the intentional act of a 
party knowing the probable consequence of what he is about.” 
§ 232. The Court of Errors of Hew York, in 1853, affirm- 
ing a decision of the Supreme Court,(d) on a policy whose 
exception was in the words “by his own hands,” rejected, by 
a vote of 5 to 3, the construction given to the exception by 
the English courts, and held that “ dying by his own hands” 
meant felonious and criminal suicide, and that, where the self- 
killing was insane, the policy was not avoided. 
§ 233. In the same year, in the Supreme Court of Pennsyl- 
it was ruled that the wTords, “ should die by his own 
hand,” were to be severed from the other exceptions, which in- 
volve criminality, and were to be construed by themselves, and 
hence that “ standing alone they mean any sort of suicide.” 
It was further said, by Chief Justice Black, that suicide avoids 
a policy, even without exceptions. 
(d) Breasted v. Farmers’ Loan Co., 4 Hill, 73 ; 8 N. Y. 299. 
(e) Hartman v. Keystone Ins. Co., 21 Penn. St. 466. 
vol. i.—16 
241 § 236] 
INSANITY AS RELATED TO LIFE INSURANCE. 
[BOOK I. 
§ 234. In Massachusetts, in 1862,(d1) in a case where the as- 
sured “came to his death by cutting his throat,” it being claimed 
that he was at the time insane, and, where the exception in 
the policy was death “ by his own hand,” the Supreme Court 
held that the policy was avoided by an intentional self-killing, 
when knowingly done, even though the party was at the time 
insane. Chief Justice Bigelow closes a forcible argument to this 
effect as follows: “ The facts agreed by the parties, concerning 
the mode in which the plaintiff’s intestate took his own life, 
leave no room for doubt that self-destruction was intended by 
him, he having sufficient capacity at the time to understand 
the nature of the act which he was about to commit, and the 
consequences which would result from it. Such being the 
fact, it is wholly immaterial to the present case that he was 
impelled thereto by insanity, which impaired his sense of 
moral responsibility, and rendered him to a certain extent 
irresponsible for his actions.” 
§ 235. In Maine, in 1866, under a policy with the exception 
couched in the same terms, the question was presented on evi- 
dence that the plaintiff’s intestate “ in a fit of insanity com- 
mitted suicide.”^1) The Supreme Court (Kent, J., dissenting) 
held that the plaintiff' was entitled to recover. That the 
court, however, did not regard itself as materially diverging 
from the decision in the Massachusetts case of Dean v. Am. 
Mutual Ins. Company, just given, appears from the closing 
remarks of Chief Justice Appleton: “But, whether these 
views are correct or not, the defendants had the benefit of in- 
structions in entire conformity with the law, as stated by the 
Supreme Court of Massachusetts, in Dean v. Am. Mutual Ins. 
Company, and the jury have, on the evidence, found the facts 
such as, in accordance with the law of that cause, would 
justify their verdict.” 
§ 236. In 1869, the words, “if he shall die by his own hands 
this policy shall be void,” came up for construction before the 
Supreme Court of Kentucky,(/) in a case where it was averred 
(dl) Dean v. Am. Mut. Life Ins. Co., 4 Allen, 96. 
(e') Eastabrook v. Union Mut. Ins. Co., 54 Me. 224. 
(/) St. Louis Mut. Ins. Co. v. Graves, 6 Bush (Ky.), 644. 
242 BOOK I.] 
INSANITY AS RELATED TO LIFE INSURANCE. 
[§ 236 
“ that the fatal shot was the involuntary offspring of a momen- 
tary paroxysm of moral insanity which subjected his will and 
impelled the homicide beyond the power of self-control or 
successful resistance.” The court was equally divided on the 
question whether this state of facts avoided the policy, though 
the judges seem to have concurred in the opinion that there 
would be no avoidance where the suicide was in “ the mad- 
ness of delirium.” The case, however, is chiefly remarkable 
for the bold statement of opinion by Robertson, J., concurred 
in by Peters, J., that “ there may be moral as well as intellect- 
ual insanity, and essentially contradistinguished from it.”(y) 
But this view was emphatically repudiated by Williams, C. J., 
with whom concurred Hardin, J., forming, therefore, two out 
of the four judges by whom the case was heard. “The doc- 
trine of moral insanity,” said Williams, C. J., “ever dangerous 
as it is to the security of the citizen’s life, and pregnant as it 
is with evils to society, has but little or no application to this 
case. Too uncertain and intangible for the practical conside- 
ration of juries, and unsafe in the hands of even the most 
learned and astute jurist, it should never be resorted to for 
exemption from responsibility save on the most irrefragable 
evidence, developing unquestionable testimony of that morbid 
or diseased condition of the affections or passions so as to con- 
trol and overpower or subordinate the will before the act com- 
plained of; for if the act is to be evidence of moral insanity 
for the suicide, so it will be for the homicide, the parricide, 
the seducer, and the ravisher.” And, in respect to the position 
of the court below, that, if “ at the instant of the commission 
of the act his (the deceased’s) will was subordinated by any 
uncontrollable passion or emotion causing him to do the act, it 
was an act of moral insanity, and they ought, if they so be- 
lieve, to find for the plaintiff,” he declared, that, “ in all the 
vague, uncertain, intangible, and indefined theories of the 
most impracticable metaphysicians on psychology and moral 
insanity, no court of last resort in England and America, so 
far as has been brought to our knowledge, ever before an- 
(g) See for a fuller abstract of this opinion, supra, § 178. 
243 § 238] 
INSANITY AS RELATED TO LIFE INSURANCE. 
[BOOK I. 
frounced such a startling, irresponsible, and dangerous propo- 
sition of law. ”(70 
§ 287. In 1869, on a policy where the exception contained the 
words “die by suicide,” the plaintiff, in order to take the death 
out of the proviso, offered to prove that the assured, at the time 
of committing the act of self-destruction, was insane, that he 
acted under the influence and impulse of insanity, and that 
his act of self-destruction was the direct result of his insanity.” 
It was held, by the Supreme Court of Massachusetts, that such 
proof would not avoid the policy within the terms of the pro- 
viso. There was no offer to prove madness of delirium, or that 
the act of self-destruction was not the result of the will and 
the intention of the party, adapting the means to the end, and 
contemplating the physical nature and effects of the act. The 
court held the case was ruled by their former decision in 
Dean v. American Mutual Insurance Company.(?) 
§ 238. In December, 1870, in the Supreme Court of Yew York, 
in an action against the Mutual Life Insurance Company,(J) 
on a life-insurance policy on behalf of Lyman II. Fowler, the 
exception being, if the assured “ should die by his own hand,” 
&c.; the evidence was “that the intestate caused his own 
death by the use of a pistol, and that there were indica- 
tions in the room which he occupied that he had also taken 
poison for the same purpose. There was also found at the 
time a letter in his handwriting, addressed to his brother, 
informing him that he had suffered for a long time with the 
thought of becoming insane, etc., and that he endeavored to 
put an end to his sufferings, that night, by poison which he 
had carried for several days. There was evidence to show 
that the tendency of the disease with which he was afflicted 
was to produce a morbid mental state, one of the precursors 
of insanity; that the deceased was a spiritualist; that for 
some days, and immediately preceding his death, he appeared 
to be a little excited, was absent minded, and one witness 
testified that he did not appear as cheerful or talk as much; 
(h) See this case commented on in another relation, supra, §§ 177, 178. 
(0 Cooper v. Mass. Mutual Life Ins. Co., 102 Mass. 227. 
(j) Fowler v. Mutual Life Insurance Co., 4 Lansing, 202. 
244 BOOK I.] 
INSANITY AS RELATED TO LIFE INSURANCE. 
[§ 239 
that he seemed to stand in a sort of melancholy state, and 
appeared to have a little lit of the blues. With the exception 
of the foregoing facts, there was no direct evidence of mental 
aberration or insanity.” The court below ruled that there 
was not sufficient evidence of insanity to make the deceased 
irresponsible for taking his life, and, upon being requested, 
refused to submit that question to the jury. This was sus- 
tained by the Supreme Court. “Hone of the cases,” said Miller, 
J., “hold that insanity alone excuses the taking of life by 
the assured. Something more is required; and the courts hold 
that, if the party he insane, it must be to such an extent as to 
render him wholly unconscious of the act, to entitle his repre- 
sentatives to recover on the policy. * * * In view of the 
cases cited, the real question to be determined is, whether 
there was anything for the jury to decide as to the death of 
the deceased being voluntary, intentional, and designed. I 
think there was no evidence for the consideration of the jury 
on this subject, and that the evidence would not have been 
sufficient to have warranted a verdict in favor of the plaintiff, 
even if the case had been left to the jury.” 
§ 239. In 1871, in the United States Circuit Court for Con- 
necticut, before Woodruff and Shipman, JJ.,(/i;) a trial was 
had on a policy of insurance on the life of Sheridan Gay, for 
$5000. The words of the exception were “in case he die by 
suicide, * * * this policy shall be null and void.” The de- 
ceased shot himself on a railway train. The plaintiff, Gay’s 
widow, for whom the policy was taken, contended that when 
he shot himself “he was insane, unconscious of the nature 
and consequences of the act, and that he was driven to it by a 
mere blind and irresistible impulse during a paroxysm of 
insanity which overwhelmed his reason and will. The defend- 
ants, on the contrary, insisted that the facts clearly proved 
that Gay, though he might have been under some delusions 
originating in a painful and guilty secret which he carried in 
his breast, and which impaired his health, and, to some extent, 
unsettled his mind, understood the nature and at least the 
(Jc) Gay v. Mut. Ins. Co., 2 Bigelow’s Life Ins. Cas. 4. 
245 § 240] 
INSANITY AS RELATED TO LIFE INSURANCE. 
[BOOK I. 
physical consequences of his act, and intended to take his own 
life. Judge Woodruff, in charging the jury, said, “We do 
instruct you, * * * that, if Sheridan Gay, at the time he fired 
the pistol, was conscious of the act he was committing, in- 
tended to take his own life, and was capable of understanding 
the nature and consequences of the act, the defendants are not 
liable. And if the act was thus committed, it is immaterial 
whether he was capable of understanding its moral aspects, or 
of distinguishing between right and wrong. And to give you 
the alternative, gentlemen, if, on the other hand, he was not 
thus conscious, or had no such capacity, but acted under an 
insane delusion and will, or was impelled by an irresistible 
delusion, which neither his understanding nor will could resist, 
then the defendants are liable.” The verdict was for the 
plaintiff. 
§ 240. The conclusions to which we are led, in -accordance 
with the doctrine of insanity as heretofore given, and after a 
review of the cases just reported, are as follows:— 
Insanity alone does not neutralize the exception, when the 
assured died by his own hand; hut it must be proved that the 
suicide was unintentional, or was produced by an insane im- 
pulse which it was out of the deceased’s power to resist, or 
was the fruit of an insane delusion leading him to consider 
the act as requisite. It is not necessary for the defendant to 
show that there was a capacity on the part of the deceased to 
distinguish right from wrong. This is aside from the issue. 
That issue is, did the assured intend, freely and intelligently, to 
destroy himself? What his views of right and wrong were 
on the subject is immaterial. If he intended to do the act freely 
—i. e., without constraint of an irresistible force, mechanical or 
moral; and if he intended to do it intelligently—i. e., if his mind, 
when acting on the particular topic, was unswayed by insane 
delusion, then the exception covers the case, and the policy is 
avoided. And this brings the law on this point in harmony 
with the general doctrine of insane delusions already de- 
clared.^) 
246 
(to) Supra, §§ 125-145. BOOK I.] 
INSANITY AS RELATED TO LIFE INSURANCE. 
[§ 241 
§ 241. The pathological character of suicide is hereafter 
distinctively discussed.^1) It is enough now to say that 
suicide is not conclusive evidence of insanity in respect to a 
will executed even immediately previous.(n) 
(m1) Infra, §§ 523, 636. See also an interesting paper by Dr. Ordronaux, 
in 20 Am. Journ. of Ins. 369. 
O) Brooks v. Barrett, 7 Pick. 94; Dnffield v. Robeson, 2 Harring. 375; 
Chambers v. Queen’s Proctor, 2 Curteis, 415 ; Burrows v. Burrows, 1 Hagg. 
109 ; Com. v. Tliornley, 47 Illinois, 192. 
As illustrating this we have (1872) the following:— 
“ At an early period of his life, Lord Bathurst inquired of an old Bishop 
of Ely what was his secret for insuring longevity. ‘ Your question is too 
general, my lord,’ replied the prelate, ‘but if you will ask me any particular 
question, I will give you a specific answer.’ ‘ Then, as to eating, my lord,’ 
said Lord B. ‘ Why, my lord, I eat what I like, and as much as I like.’ 
‘ Next, as to drinking ?’ ‘ Why, with regard to drinking, my lord, I observe 
precisely the same rule ; I drink what I like and as much as I like.’ ‘ Ex- 
cellent rules !’ replied Lord B., ‘which I am determined punctually to fol- 
low.’ Lord B. did follow these rules to hilarity, but rarely to intemperance. 
He lived to the advanced age of ninety-one. Another rule which his lord- 
ship invariably pursued contributed, doubtless, much more to the prolonga- 
tion of his life than the Epicurean code of the Bishop of Ely. This was 
bodily exercise in riding and walking, with which he suffered neither plea- 
sure nor business to interfere, and which he habitually practised till within a 
short time of his death. For this practice, after his retirement from public 
life, he had great facilities in the extensive and various walks on his ample 
domain at Cirencester. In the autumn of the year 1775, a slight disease 
occurred in one of his knees, for which he was occasionally visited by Sir 
Caesar Hawkins. The malady, though somewhat aggravated by a fall on a 
polished floor in his own house, was apparently of no further consequence 
than as it interfered with his accustomed rides and walks in his park. On 
Thursday, September 9, 1775, Mr. Parry and his eldest son, afterwards Dr. 
Caleb Hillier Parry, dined with him. He ate and drank in his accustomed 
way, was all urbanity and mirth, quoted with fluency and exactness many 
appropriate lines from the Latin and English poets, and related many anec- 
dotes of the wits who were the contemporaries of his earlier years. Among 
the rest he told the following story of Pope, who, in the former part of his 
life, had been desperately in love with Lady Mary Wortley Montague, 
though there now existed between these persons the most rancorous hatred, 
covered with the flimsy veil of polite civility. 
“ ‘ Lady Mary went one day to Lord Burlington’s, in Piccadilly, and in- 
quired if his lordship was at home. The servant replied that he was not, but 
that Mr. Pope was above in one of the drawing-rooms. “ Oh,” said Lady 
Mary, “I should wish to see him; show me the room.” The servant accord- 
ingly showed her up stairs, opened the drawing-room door, and, having an- 
nounced her name, retired. After a short time, however, hearing the draw- 
247 248 
INSANITY t 
[book i. 
F. When disqualifying a witness. 
§ 242. A lunatic, even though in confinement in a lunatic 
asylum, is admissible as a witness if the judge considers him 
competent in point of understanding, and aware of the nature 
of an oath.(a) In the case of R. v. Ilill, the accused, accord- 
ing-room bell ring, he reascended the stairs and met Lady Mary, who had 
just left the apartment. “ You told me,” said she, “that Mr. Pope was in 
the drawing-room; I saw nothing there but a great baboon asleep in an arm- 
chair.” 
“ ‘ This story was told by the servant to Lord Burlington, and, in the 
usual course of such reports, was whispered by some good-natured friend to 
Mr. Pope himself. The indignant poet shortly afterwards called in his car- 
riage upon Lady Mary, whom he entreated to accompany him, in order, as he 
said, to show her the excellent effect produced by the substitution of rails for 
the dead brick wall which had intercepted, from the road, the view of Ken- 
sington Gardens. She accepted the invitation, and, notwithstanding the great 
imperfection of her sight, which she was extremely averse to acknowledge, 
but which prevented her distinguishing objects at the distance of twenty feet, 
most politely acquiesced in all the extravagant praises which, during an entire 
hour, Mr. Pope lavished on the beautiful scenery which everywhere struck 
the view through the pretended iron rails. The exhibition being ended, Mr. 
Pope took the earliest opportunity of communicating to all his friends the 
success with which he had thus retorted on Lady Mary her illiberal satire on 
his personal defects.’ 
“When the company rose, Lord Bathurst walked with little apparent diffi- 
culty into an adjoining room. 
“ This meal was the last that Lord Bathurst ever ate. Unable on account 
of his knee to take his accustomed exercise in the open air, and tired of an 
existence which was to be protracted on such terms, he determined, like 
Atticus, to cease to live. Inflexible to his purpose, from this moment he 
refused all sustenance, and thus, gradually sinking, expired on the Thursday 
following (Sept. 1G), at the precise interval of one week from that day on 
which the narrator bad witnessed his almost unrivalled blaze of literary and 
social talents. This fact respecting Lord Bathurst was more than once re- 
lated by Mr. Parry, and was many years afterwards confirmed to his son by 
the succeeding earl, who accompanied the latter round the park in order to 
exhibit those spots which had been so often the scenes of his boyish felicity.” 
—From A Memoir of the Rev. Joshua Parry, Nonconformist Minister of 
Cirencester, with some original Essays and Correspondence, by the late Charles 
Ilenry Parry, F.R.S., edited by Sir John E. Eardley Wilmot, Bart., Recorder 
of Warwick. London: Hamilton, Adams §' Co. 1872. 
(a) R. v. Hill, 2 Den. C. C. 254 ; T. & M. 582; Fennel v. Tait, 1 C. M. & 
R. 584; 5 Tyr. 218 ; 3 D. P. C. 161 ; Spittle v. Walton, 40 L. J. Clianc. 368 ; 
Com. v. Reynolds, cited 10 Allen, 64; Kendall v. May, 10 Allen, 59; Campbell 
v. State, 23 Alab. 44. See Livingston v. Kierstadt, 10 Johns. 362. 
248 BOOK I.] 
WHEN DISQUALIFYING A WITNESS. 
[§ 242 
ing to the abstract of the case given by Mr. Browne,(b) was 
an attendant in charge of a ward in a lunatic asylum. lie was 
indicted for the manslaughter of Moses James Barnes, one of 
the patients under his care. The prisoner was tried before 
Coleridge, J., assisted by Creswell, J., at the Central Criminal 
Court. He was convicted, but a question was reserved for the 
opinion of the court as to the propriety of having admitted a 
witness of the name of Richard Donelly, who was a patient 
in Mr. Armstrong’s lunatic asylum, at Camberwell, on the 
part of the prosecution. Some evidence was gone into as to 
the competency of Donelly’s testimony, and one witness stated 
that “ Donelly labors under the delusion that he has a number 
of spirits about him which are continually talking to him. 
That is his only delusion; he has never been free from it, to 
my knowledge, since I have known him.” Two medical wit- 
nesses deposed that, in their belief, Donelly was quite capable 
of giving an “ account of any transaction that happened before 
his eyes.” When Donelly was called, he was examined by 
the prisoner’s counsel before he was sworn. In the course of 
this preliminary examination he said, “ I am fully aware that 
I have a spirit, and twenty thousand of them; they are not all 
mine. I must inquire—I can where I am—I know which are 
mine. Those ascend from my stomach to my head, and also 
those in my ears ; I don’t know how many they are. The flesh 
creates spirits by the palpitation of the nerves and the ‘ rheu- 
matics ;’ all are now in my body and round my head; they 
speak to me incessantly, particularly at night. That spirits 
are immortal I am taught by my religion from my childhood. 
Ho matter how faith goes; all live after my death, those which 
belong to me and those which do not. Satan lives after my 
death, so does the living God.” lie also said: “ They speak 
to me constantly; they are now speaking to me; they are not 
separate from me; they are round me, speaking to me now; 
but I can’t be a spirit, for I am flesh and blood. They can go 
in and out through walls and places, which I cannot. I go to 
the grave; they live hereafter, unless, indeed, I’ve a gift differ- 
ent from my father and mother, that I don’t know. After 
(5) Med. Jur. of Insan., Lond., 1871. 
249 § 242] 
insanity: 
[book i. 
death my spirit will ascend to heaven or remain in purgatory. 
I can prove purgatory; I am a Roman Catholic; I attend 
Moorfields’, Chelsea Chapel, and many other chapels round 
London; I believe purgatory; I was taught that in my child- 
hood and infancy; I know what it is to take an oath ; my cate- 
chism taught me from my infancy when it is lawful to swear; 
it is when God’s honor, our own or our neighbor’s good re- 
quire it; when man swears,he does it in justifying his neigh- 
bor on a prayer-book or obligation. My ability evades while 
I am speaking, for the spirit ascends to my head; when I 
swear I appeal to the Almighty; it is perjury the breaking of 
a lawful oath, or taking an unlawful one; he that does it will 
go to hell for eternity.” He was then sworn, and gave a per- 
fectly connected and rational account of the transaction which 
he reported himself to have witnessed. He was not certain as 
to the day of the week on which the circumstances he spoke 
of took place, and on cross-examination said: “ These creatures 
insist upon it it was Tuesday night, and I think it was Mon- 
day.” Whereupon he was asked, “ Is what you have told us 
what the spirits told you, or what you recollect without the 
spirits ?” And he said, “ Ho, the spirits assist me in speaking 
of the date. I thought it was Monday, and they told me it 
was Christmas-eve—Tuesday; but I was an eye-witness, an 
ocular witness, to the fall to the ground.” The question for 
the Court of Criminal Appeal was—Richard Donelly’s com- 
petency as a witness. The accused having been convicted, 
the case was argued before Lord Campbell, C. J., Coleridge 
and Talfourd, JJ., and Alderson and Platt, BB. The con- 
viction was upheld. Lord Campbell, in delivering his judg- 
ment, said: “ The question is important, and has not yet been 
solemnly decided after argument; but I have no doubt that 
the rule was properly laid down by Parke, B., in the case which 
was tried before him, and that it is for the judge to say 
whether the insane person has the sense of religion in his 
mind, and whether he understands the nature and sanction of 
an oath, and then the jury are to decide on the credibility and 
weight of his evidence. * * * A man may, in one sense, be 
non compos, and yet be aware of the nature and sanction of an 
oath. In the particular case before the court, I think the 
250 BOOK I.] 
WHEN DISQUALIFYING A WITNESS. 
[§ 244 
judge was right in admitting the witness; I should certainly 
have done so myself. * * * It has been argued that any par- 
ticular delusion, commonly called monomania, makes a man 
inadmissible. This would be extremely inconvenient in many 
cases in the proof either of guilt or innocence; it might also 
cause serious difficulties in the management of lunatic asylums. 
I am, therefore, of opinion, that the jlidge must in all cases 
determine the competency, and the jury the credibility. Be- 
fore he is sworn, the insane person may be cross-examined, and 
witnesses called to prove circumstances which might show him 
to be inadmissible; but in the absence of such proof he is 
prima facie admissible, and the jury must attach what weight 
they think fit to his testimony.” Talfourd, J., said: “It 
would be very disastrous if mere delusions were held to ex- 
clude a witness. Some of the greatest and wisest of mankind 
have had particular delusions. ”(c) 
§ 243. A habeas corpus ad testificandum will issue to bring 
into court a witness from an insane asylum.(<i) 
§ 244. “It is well,” remarks Mr. Browne, in the work 
already cited, “ in all cases in which the evidence of persons 
of unsound mind is had recourse to, to endeavor to corrobo- 
rate the testimony in some particulars, at least, by means of 
the depositions of sane witnesses. The importance of this 
rule will be made manifest by the statement of the evidence 
of James Sumner, an inmate in the Birmingham Borough 
Lunatic Asylum, by means of which William Braley, a 
(c) See Waring v. Waring, 6 Moore’s P. C. C. p. 841. In tliis connec- 
tion, adds Mr. Browne, tlie following cases may he consulted : R. v. Eriswell, 
3 J. R. 707; Currie v. Child, 3 Campb. 282. See also Chapman v. Graves, 
2 Campb. 333 n.; Adams v. Ker, 1 Bos. & P. 360 ; Cuncliff v. Sefton, 2 East, 
183; and Bennet v. Taylor, 9 Yes. 381; Rex v. Morley, quoted in Reg. v. 
Hill. 
The Journal of Mental Science, for January, 1870, mentions an interesting 
case of the admission of the testimony of an insane witness. A confined lunatic 
was beaten by his keeper, and the results were pleuritis and death. The 
only witness was a fellow-lunatic. The latter, who had been for two months 
convalescent, had suffered from melancholy with hallucination of the senses. 
His testimony was exact, and betrayed no traces of insanity. Though the 
issue rested on his credibility, the defendant was convicted. 
(d) Spittle v. Walton, 40 L. J. Chanc. 368. See Fennell v. Tait, ut supra. 
251 § 245] 
INSANITY AS A CRIMINAL DEFENCE. 
[book i. 
warden in said asylum, was a few weeks ago proved, to the 
satisfaction of the stipendiary, to have caused the death of a 
man named John Hinton. The prisoner Braley was commit- 
ted for trial at the next assizes.”(e) 
§ 244a. A remarkable prosecution was instituted in Mary- 
land in 1866, against the officers of the Mount Hope Institu- 
tion for the Insane, in that State, the prosecutors being lunatic 
patients. The complaint turned out to be unfounded, and the 
defendants were acquitted, but there was no question as to the 
admissibility of the prosecutors as witnesses, incredible as some 
of their statements were afterwards regarded.^1) 
§ 245. The credibility that is to be attached to witnesses 
testifying to facts which transpired while they were under the 
influence of chloroform or ether, is exclusively for a jury. In 
cases of rape, to be hereafter reported under that particular 
head, testimony of this kind has been received as sufficient to 
sustain convictions; and, unless such testimony is held admis- 
sible (its credibility being for the jury), there would be no 
redress for injuries inflicted on persons under the influence of 
anaesthetics. At the same time it is proper to call attention to 
the following points stated in a remarkably able essay, touch- 
ing the value of testimony of this class, communicated in 1860 
to the Ohio Medical Society by Dr. T. L. "Wright, of Belle- 
fontaine, and printed among the transactions of that society:— 
“ 1st. That will is always active when there is mental con- 
sciousness. 
“ 2d. That will cannot be directly impressed by another will, 
but that the judgment may be misled, and the will, though 
free, may act upon false conceptions in a manner different from 
what it would do if the mind and senses were perfectly active. 
“ 3d. There may be venereal connection with a female while 
she is conscious and unwilling; but there may be no venereal 
connection with a female, while she may honestly believe she 
(e) The prisoner Braley has, since the above was written, been tried and 
acquitted. The jury seemed to place no reliance upon the evidence of Sum- 
ner, although he was evidently quite sane at the time it was given. Sumner 
admitted that, previous to his asylum experience, he had known something 
of prisons, which may to some extent account for the verdict. 
(e1) See report in 23 Am. Journ. of Insan. 311. 
252 BOOK I.] 
EVIDENCE OF INSANITY. 
253 
has been under the delusion of organic sensibilities, occasioned 
by the peculiar action of chloroform upon her nervous system. 
“ 4th. It is impossible for a woman very often to decide 
whether actual connection has been had or not. 
“ 5th. The evidence of a person, respecting transactions that 
occur to the mind while partly conscious, is always liable to 
the most monstrous fallacies, and it should not be received as 
sufficient proof of any fact. 
“ 6th. Evidence of females, respecting rape upon themselves 
while unconscious from chloroform, is particularly liable to 
suspicion. 
“ 7th. Evidence of females respecting rape under such cir- 
cumstances should be subjected to all the rules and exceptions 
of circumstantial evidence, and should be fully corroborated 
by other circumstances.” 
G. Evidence of insanity. 
(a1) Burden of proof. 
(a2) Civil issues. 
§ 246. As a general rule, each person making a contract or 
will is supposed to be sane. The burden of proving insanity, 
therefore, is on the party by whom it is set up.(/) 
§ 247. In New York, however, the Court of Appeals, in the 
Parish will case, ruled:— 
“ 1. That in all cases the party propounding the will is 
bound to prove, to the satisfaction of the court, that the paper 
in question does declare the will of the deceased, and that the 
supposed testator was, at the time of making and publishing 
(/) Harris v. Ingledees, 3 P. Wins. 91 ; Jackson v. Yan Dusen, 5 Johns. 
144, 158; Temple v. Temple, 1 Hen. & Munf. 476: Stevens v. Vancleve, 1 
Wasli. C. C. 262; Saxon v. Whitaker, 30 Alab. 234; Trumbull v. Gibbons, 
2 Zab. 117; Jackson v. King, 4 Cow. 207; Buckminster v. Perry, 4 Mass. 
593 ; Hubbard v. Hubbard, 6 Mass. 397; Turner v. Cliarman, 15 N. Jer. Ch. 
213; Cotton v. Ulmer, 45 Ala. 378; Southerlin v. McKinney, Rice, 35; Clark 
v. Fisher, 1 Paige, 171 ; Bogardus v. Clark, 1 Edw. 266 ; S. C., 4 Paige, 623; 
Clark v. Sawyer, 3 Sandf. 351, 2 Comst. 498; Rees v. Stille, 38 Pa. St. 188; 
Werstler v. Custer, 46 Pa. St. 502 ; Runyan v. Price, 15 Ohio St. (N. S.) 1; 
Thompson v. Kyner, 68 Penn. 368 ; Farrell v. Brennan, 32 Mo. 328. 
253 § 249] 
EVIDENCE OF INSANITY. 
[book i. 
the document propounded as his will, of sound and disposing 
mind and memory. 
“ 2. That this burden is not shifted during the progress of 
the trial, and is not removed by proof of the factum of the 
will, and the testamentary competency, by the attesting wit- 
nesses, but remains with the party setting up the will. 
“ 3. That if, upon a careful and accurate consideration of all 
the evidence on both sides, the court is not judicially satisfied 
that the paper in question does contain the last will of the 
deceased, the court is bound to pronounce its opinion that the 
instrument is not entitled to probate. ”(y) 
§ 248. In Delaware, the rule has been stated to be that the 
party setting up the will must prove that it was made as a 
will and voith a will, by a party capable of making it, and that 
he knew its contents. A blind man may make a will, and a 
valid will may be drawn by a person taking a beneficial inte- 
rest under it, but the blindness of the testator and the interest 
of the person drawing and attending to the execution of it 
are circumstances which should admonish the jury to scruti- 
nize the evidence offered to prove the testator’s knowledge of 
its contents. The law presumes, in general, that the will was 
read by, or to, the testator. The strict meaning of the term 
onus probandi is this, that if no evidence is given by the party 
on whom the burden is cast, the issue must be found against 
him. In all cases this onus is imposed on the party propound- 
ing the will, but it is in general discharged by proof of capa- 
city and the fact of execution; from which the law assumes 
or infers knowledge of and assent to the contents of the will 
on the part of the testator.(A) 
§ 249. Where, also, sanity is made by statute a condition 
precedent of testamentary capacity, it would seem that it must 
be proved, or a prima facie case of it exhibited, by the party 
setting up the will.(z) It has been ruled in Massachusetts that 
(g) Dclafield v. Parish, 25 N. Y. Ct. of App. 10, S. P.; Ean v. Snyder, 4G 
Barb. 280. 
(7t) Davis et al. v. Rogers, 1 Houston (Del.), 44. 
(i) Comstock v. Hadlyme, 8 Conn. 261; Tuff v. Hosmer, 14 Mich. 309 ; 
Crowninshield v. Crowninsliield, 2 Gray, 524. 
254 BOOK I.] 
BURDEN OF PROOF. 
255 
on an appeal from a court of probate allowing a will, sanity, 
in the absence of contrary proof, will be presumed.^') 
§ 250. Homicide followed by suicide and a disposition of 
property entirely at variance with long declared intentions, and 
the exhibition of unnatural malice towards a child, are not of 
themselves sufficient to raise a presumption of insanity, or the 
want of a disposing A fortiori is this the case as to 
suicide.(T) 
§ 251. With regard to contracts, the burden is, by general 
consent, on the party by whom the contract is assailed. Thus, 
on the issue, whether a deed is invalid by being executed while 
the grantor was of unsound mind, or under undue influence, 
the burden of proving insanity or undue influence, it was 
ruled in Massachusetts in 1868, is upon the party alleging it.(m) 
§ 252. So it was ruled in Illinois, in 1869, that, when un- 
soundness of mind is alleged as a ground for setting aside a 
deed, the fact must be established with reasonable certainty. 
If there is only a balance of evidence, or a mere doubt of the 
sanity of the maker of the deed, the presumption in favor of 
the sanity of the maker of the deed must turn the scale in favor 
of its validity. To destroy its binding effect, the evidence 
must decidedly preponderate.(n) 
§ 253. Habitual insanity once shown is presumed to con- 
Thus in the remarkable litigation based on the will 
of Mrs. Thwaytes, insanity having been shown down to Novem- 
ber, 1864, while the will was dated in March, 1866, it was 
argued by the legatees that the evidence failed in reaching its 
mark. But it was ruled by Sir J. P. Wilde,(p) “ if unsound- 
ness extending over years be once proved by those who oppose 
a will, there is no doubt, as a proposition of law, that they are 
not bound to carry the evidence of insane actions or delusions 
up to the very moment of the testament. A diseased state of 
(j) Baxter v. Abbott, 7 Gray, 71. 
(&) Crum v. Tbornley, 47 111. 192. 
(Z) Supra, § 213. 
(to) Howe v. Howe et al., 99 Mass. 88. 
(n) Myatt v. Walker, 44 111. 485. 
(o) See supra, § 61. 
(p) Smith v. Tebbitt, Law Rep. 1 Prob. and Dis. 434. 
255 256 
EVIDENCE OP INSANITY. 
[book i. 
mind, once proved to have established itself, would be presumed 
to continue, and the burden of showing that health had been 
restored falls upon those who assert it.” 
§ 254. So, in a suit upon a note decided in Illinois, in 1867, 
the defence was the insanity of the maker of the note. The 
court laid down the rule that when insanity is shown in a 
person making a contract, and as a defence to its performance, 
he who claims the performance must prove it was entered into 
while the party had a lucid interval. It was also held, in 
conformity with the views heretofore stated, that, it is not 
every kind of insanity that will relieve a party from the effect 
or consequences of his acts, but the insanity must be either 
general, or, if special, have relation to the act from which the 
party seeks to be relieved, (q) 
§ 255. The mental condition of a person, from the making 
of the instrument sought to be avoided until his death, may be 
given in evidence to show his apparent, if not true, condition.(r) 
Lucid Interval. 
§ 256. It should always be kept in mind, that, when contin- 
uous insanity is proved, the burden of proving a lucid interval, 
during which the instrument is alleged to have been executed, 
is on the party setting up such instrument.(s) 
It is otherwise, however, when the prior insanity alleged 
was spasmodic and parenthetical ,(t) or consisted of delirium, 
tr emeus, (f) 
(b2) Criminal issues. 
§ 257. At common law, the weight of authority is, that, 
when the defence in a criminal issue is insanity, such insanity 
(g) Emery ®. Hoyt, 46 111. 258; Staples v. Harrington, 58 Maine, 453. 
See supra, § 34. 
(r) Hendrix v. Mooney, 1 Busli (Ky.), 306. 
O) See cases cited § 61, and also § 744 ; and see State v. Spencer, 1 Za- 
briskie, 196; R. v. Stokes, 3 C. & K. 188; R. v. Taylor, 4 Cox C. C. 155 ; 
Cartwright v. Cartwright, 1 Pliill. 100; Hoge ®. Fisher, 1 P. C. C. R. 163 ; 
Hix v. Whittemore, 4 Mete. 545; 1 Jarman on Wills, 65. 
(t) Supra, § 61. Lewis v. Baird, 3 McLean, 55 ; Menkins ®. Liglitner, 18 
111. 282 ; Ackey v. Stephens, 8 Ind. 411 ; State v. Wellington, 58 Maine, 658. 
(£') State ®. Seeyall, 3 Jones N. C. (Law) 245. 
256 BOOK I.] 
BURDEN OF PROOF. 
[§ 259 
must be proved as a substantive fact by the party alleging it, 
on whom lies the burden of proof.(tt) 
§ 258. Where a prisoner sets up insanity as a ground of de- 
fence, one cardinal rule, as lately stated in England by Eolfe, B., 
is, that the burden of proving his innocence on that ground 
rests on the party accused. The question in such a case for 
the jury is not whether the prisoner was of sound mind, but 
whether he has made out to their satisfaction that he was not 
of sound mind. The jury may come to a conclusion on this 
point from the conduct and acts of the accused shortly before 
and down to the commission of the alleged crime. Although 
insanity on one point—for instance, a delusion as to property— 
will not exempt a party from responsibility, the fact is not 
immaterial in considering his responsibility at another time 
and on another subject. The want of motive for the commis- 
sion of crime, and its being committed under circumstances 
which render detection inevitable, are important points for the 
consideration of the jury, when coupled with evidence of 
insanity on any particular point, (v) 
§ 259. “ Whether the presumption of sanity,” said Smith, J., 
in 1870, giving the opinion of the Supreme Court of Hew 
Hampshire,(w) “ is one of law or fact (a point on which contra- 
dictory views have been expressed in recent cases in this State; 
see Bell, C. J., in Perkins v. Perkins, 39 1ST. II. 163, p. 170,171; 
Bellows, J., in State v. Bartlett, 43 H. H. 224, p. 230; instruc- 
tions to jury by Bartlett, J., in Boardman v. Woodman, 47 1ST. 
H. 120, p. 123), or a mixed presumption of law and fact (see 
Sutton v. Sadler, 3 Com. Bench, 1ST. S. 87), is in many cases 
‘a question merely verbal: a question of the propriety of 
certain forms of expression.’ 
“ If it be merely a presumption of fact, it is, nevertheless, a 
(w) Wh. C. L. §§ 55, 711. R. ®. Stokes, 3 C. & K. 138; R. v. Taylor, 4 
Cox C. C. 155; U. S. v. Lawrence, 4 Cranch C. C. 514; Atty. v. Parntker, 
3 Brown C. C. 441; U. S. v. McGlue, 1 Curtis, 1; State v. Spencer, 1 Za- 
briskie, 202 ; State v. Brandon, 8 Jones, N. C. 463; State v. Starke, 1 Strob- 
liart, 479; State v. Bringer, 5 Ala. 244; People v. Myers, 20 Cal. 518 ; Bos- 
well ©. Com., 20 Grattan, 860 ; Com. v. Eddy, 7 Gray, 583 ; Loeffner ©. State, 
10 Ohio, 599. 
(») R. v. Layton, 4 Cox C. C. 149. 
(w) State v. Pike, 49 N. H. 399. 
VOL. I.—17 
257 § 259] 
EVIDENCE OF INSANITY. 
[book i. 
presumption drawn from the common experience of mankind, 
which the court were well warranted in calling the attention 
of the jury to; and it is a presumption which the jury would 
inevitably have made whether the court had referred to it or 
not. For these reasons we think the refusal to charge, ‘that 
there is no legal presumption which can have any weight with 
the jury as matter of law,’ could not have materially pre- 
judiced the respondent. 
“The court also declined to instruct the jury ‘that there is 
no legal presumption of sanity which is a substitute for 
evidence.’ 
“We think that the presumption of sanity, whether it he a 
presumption of law or of fact, is, in one sense, ‘ a substitute 
for evidence.’ ‘ The general presumption of sanity is suffi- 
cient prima facie evidence of that fact’ to warrant a finding 
of sanity where no evidence is introduced tending to show 
insanity. ”(x) 
(*) To this we have the following dissenting opinion from Judge Doe :— 
“Shifting the burden of proof upon the defendant, and allowing him to 
throw it back upon the State by a scintilla of testimony, would naturally be 
followed by allowing the State to throw it back again upon the defendant by 
another scintilla, and so on through an interminable subdivision of the evi- 
dence. 
“ There s no legal guilt in a homicide solely caused by a mental disease. 
Mental capacity to commit an offence includes sanity. And, if there is a legal 
presumption of innocence, as the books say, how is it overpowered, in the 
absence of all evidence, by a legal presumption of sanity ? When the two 
presumptions come in conflict without assistance, how does the law ascertain 
which prevails? Greensborough v. Underhill, 12 Vt. 604; 1 Gr. Ev., § 35. 
If it is necessary to abolish one of the presumptions to avoid their conflict, 
the presumption of innocence can well be spared, for it is entirely useless. 
The State, alleging guilt, must prove it. The burden of proof is attached to 
the affirmative. The accused does not need a presumption of innocence, and 
it is of no advantage to him. There is no legal presumption of guilt, and the 
defendant is as well protected by the rule which puts the burden of proof on the 
party alleging an affirmative, as he would be by a presumption of innocence. 
Greenleaf, indeed, says that the legal presumption of innocence is to be re- 
garded by the jury as matter of evidence. 1 Gr. Ev., § 34. But this is an 
incorrect view. A legal presumption is not evidence; it establishes a point 
when there is no testimony and no inference of fact from the absence of tes- 
timony, and also when all the testimony is so balanced that the point is not 
decided by the testimony. Putting upon the State the burden of proving 
258 BOOK I.] 
BURDEN OF PROOF. 
[§ 261 
§ 260. But, passing the question of presumption, there are 
three distinct theories as to the degree of evidence requisite to 
justify a conviction when the defence is insanity. 
§ 261. The first is, that insanity, as a defence of confession 
and avoidance, must he proved beyond reasonable doubt; and 
that, unless this be done, the jury, the case of the prosecution 
being otherwise proved, are to convict. This is expressed by 
Ilornblower, C. J., as follows : “The proof of insanity at the 
guilt, and giving to tlie defendant a presumption of innocence as evidence 
tending to disprove tlie guilt which the State must prove, would be like 
doubling the weight of any testimony the defendant might introduce, and 
weighing it once against the State and again in favor of the defendant. The 
burden of proof affixed to the affirmative, generally renders a presumption 
of law unnecessary ; but it seems sometimes to he supposed that there is a 
necessity for such a presumption for or against every fact alleged and denied 
in pleading; and more so-called legal presumptions have been constructed 
than can be conveniently used. 
“ There are certain natural or usual causes, effects, conditions, and customs, 
generally within the reach of the experience or the observation or the reason 
of men, which a jury are justified in finding by an inference or presumption 
of fact when there is no testimony showing an exceptional instance in the 
case on trial. Rex v. Burdett, 4 B. & Aid. 121; Rex v. Rosser, 7 C. & P. 
648 ; Ottawa v. Graham, 28 111. 78. When it is proved that one man has 
killed another with a deadly weapon, under some circumstances there may 
be, as a matter of fact, a fair inference of malice and intent to kill; but, in 
England, and generally in this country, such inferences have been impro- 
perly changed into legal presumptions, and used to change the burden of 
proof throughout the trial. (Ante, p. 481.) It is not necessary, in this climate, 
to offer testimony to show that the ground was frozen the last January, or 
that it was not frozen the last August. Seedling fruit-trees do not generally 
bear fruit of the best quality ; and without any testimony of witnesses as to 
the product of a particular seedling, a jury would be authorized to presume 
the fact. In such cases, the absence of testimony tending to show an excep- 
tion, may be satisfactory evidence tending to show the operation of the known 
general rule. The inference drawn by the jury from the absence of particular 
testimony, is a presumption of fact. But many such presumptions have been 
unnecessarily promulgated by the court, and improperly called presumptions 
of law—the court having a great advantage of position in encroaching upon 
the province of the jury. 
“ The presumption of sanity is not an artificial or legal presumption, but a 
natural inference of fact to be made by a jury from the absence of evidence 
to show that a party did not enjoy that soundness which experience proves 
to be the general condition of the hitman mind. Sutton v. Sadler, 3 Com. 
B. (N. S.) 87, 96. The State has no more need of a legal presumption of 
sanity, than the defendant has of a presumption of innocence.” 
259 § 263] 
EVIDENCE OF INSANITY. 
[book i. 
time of committing the act ought to be as clear and satisfactory, 
in order to acquit him on the ground of insanity, as the proof of 
committing the act ought to be to find a sane man guilty. ”(y) 
Such is the English rule.(,z) 
§ 262. The second is, that the jury are to be governed by 
the preponderance of evidence; and are not to require insanity 
to be made out beyond reasonable doubt.(a) Thus, in Maine, 
in 1870, on an indictment for murder, the defence being in- 
sanity, the court below refused to instruct the jury “that if 
they had reasonable doubt of the prisoner’s insanity they were 
bound to acquitbut charged as follows, viz.: “ That the 
onus is on the defendant to prove by a preponderance of 
evidence, that at the time of committing the act he 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, that he did not know it was wrong.” The 
Supreme Court held this instruction to be correct, and in strict 
conformity to the most approved judicial authorities.^) 
§ 263. So in Missouri, in 1868, it was held that the question 
of insanity is always one of fact; that every man is presumed 
to be sane, and to possess a sufficient degree of reason to be 
responsible for his crime, until the contrary is shown; and 
that, to establish insanity as a defence, it must be proved that at 
the time of committing the offence the defendant 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, such as not to know that he was doing wrong. 
The burden of establishing the insanity of the accused affirma- 
tively to the satisfaction of the jury rests upon the defence.(c) 
This was subsequently (1870) so modified as to declare it to 
be the law that in criminal cases the burden of establishing 
the insanity of the accused to the satisfaction of the jury rests 
upon the defence; but it is unnecessary that his insanity 
(t/) State v. Spencer, 1 Zabriskie, 202. See Wli. Cr. L. § 711. 
(s) Supra, §§ 225, 226. 
(«) Com. v. Eddy, 7 Gray, 583; Com. v. Rogers, 7 Mete. 500; Loeffner v. 
State, 10 Ohio, 599; McKenzie v. State, 26 Ark. 234. 
(5) State v. Lawrence, 57 Maine, 574. 
(c) State v. Klingler, 43 Mo. 127. 
260 BOOK I.] 
BURDEN OF PROOF. 
[§ 267 
should be established beyond a reasonable doubt. All symp- 
toms and tests of mental disease are purely matters of fact 
for the jury, and to be determined like other facts, and it is 
sufficient if the jury are reasonably satisfied from the weight 
or preponderance of evidence that the accused was insane at 
the time of the commission of the act. “ Preponderance,” but 
not “ clear preponderance,” was required.(d) 
§ 264. So, also, in Illinois, it was declared, in 1860, that the 
jury, in all cases where insanity is interposed as a defence, 
should be distinctly told that, while every man is presumed 
to be sane until the contrary is shown, it must be shown by 
sufficient proof that from some cause it has ceased to be the 
condition of the accused.(e) 
§ 265. So, again, in Massachusetts, in 1868, it was decided 
that, in order to convict a person accused of crime [homicide 
in this case] where the defence is idiocy, an original defect 
and want of capacity, the jury must be satisfied not only that 
he did the act charged, but that he was a responsible agent. 
Whether, however, the rule should be modified where the de- 
fence relied upon is insanity or delusion, it was said to be then 
not necessary to inquire//) It had been previously declared 
by the same court, that in all cases of insanity a preponderance 
of evidence was enough to prove the defendant’s case.(y) 
§ 266. So, in California, in 1864, it was held that in a criminal 
case, if the defendant relies upon insanity as a defence, proof 
beyond a reasonable doubt is not required, but the burden of 
proof is cast upon him, and his insanity must be established 
by such a preponderance of evidence that, if the single issue of 
the sanity or- insanity of the defendant was submitted to the 
jury in a civil case, they would find that he was insane.(A) 
§ 267. A third view is, that in such an issue the prosecution 
must prove sanity beyond reasonable doubt. Thus in a case in 
Michigan, in 1869, while it was admitted that sanity was the 
normal condition of the mind, and that the prosecution might 
(d) State v. Hundley, 46 Mo. 414. 
(e) Fislier v. People, 23 111. 283; S. P., Hopps v. People, 31 111. 385. 
(/) Commonwealth v. Heath et al., 11 Gray, 330. 
(g) Com. v. Eddy, 7 Gray, 583; Com. v. Rogers, 7 Mete. 500. 
(4) People ®. Coffman, 24 Cal. 230. 
261 § 268] 
EVIDENCE OF INSANITY. 
[book i. 
rest upon the presumption that the accused was sane when he 
committed the act, until it is overcome by the opposite case, 
it was nevertheless determined, that, when any evidence which 
tends to overthrow that presumption is given, the jury are to 
examine, weigh, and pass upon it, with the understanding 
that, although the initiative in presenting the evidence is 
taken by the defence, the burden of proof upon this part of 
the case, as well as upon the other, is upon the prosecution to 
establish the conditions of the guilt.(z') 
Similar views have been maintained by other American 
courts; and it has been not infrequently ruled, that, where 
there is reasonable doubt as to sanity, the jury must acquit.(J) 
Thus, in Indiana, in 1869, it was declared, that the defend- 
ant is not required to prove insanity affirmatively, but merely 
to raise a reasonable doubt, the burden of overcoming which 
then falls on the State.(&) 
So, in Hew Hampshire, in 1871, the jury were told, in a 
capital case, that the defendant was to be acquitted on the 
ground of insanity, unless the jury should be satisfied beyond 
a reasonable doubt that the killing was not produced by 
mental disease.(^) 
§ 268. The conflict which has been just noticed has arisen 
from the habit of viewing the plea of insanity as an ordinary 
defence of the nature of confession and avoidance, or as in 
some way entering into the merits of the question of inno- 
cence or guilt. Such, however, is not the case. It is rather in 
the nature of a plea to the jurisdiction, or a motion to change 
the venue. The defendant, through his counsel and friends, 
comes in and says that he is not amenable to penal jurisdiction. 
He is not a moral agent; he is insane ; he cannot be tried by 
the principles of penal law; he is not the subject of penal ad- 
judication. To apply to such an issue the maxims of criminal 
( i) People v. Garbutt, 17 Midi. 9. 
(j) Smith v. Com., 1 Duvall (Ky.), 224, though in a subsequent case this 
was qualified by saying that a mere doubt was not enough; the doubt must 
be truly reasonable. Kriel v. Com., 3 Bush, 362. See also Polk v. State, 14 
Ind. 170; State v. Marler, 2 Aid. 43; People v. McCann, 16 N. Y. 58. 
(7<0 Bradley v. State, 31 Ind. 492. See Stevens v. State, 31 Ind. 485. 
(7) State v. Jones, MSS. See infra, § 108. 
262 BOOK I.] 
BURDEN OF PROOF. 
[§ 269 
jurisprudence, constructed to guide in determining the ques- 
tion of guilt or innocence, is a petitio principU. These maxims, 
e. g. the presumptions of innocence and of intent, assume that 
the defendant is either innocent or guilty; but the defendant, if 
the plea of insanity is good, can he neither. It is petitio prin- 
cipii, therefore, to speak of his being presumed to be innocent; 
for, not being a moral agent, he cannot be innocent. It is 
also a petitio principU to speak of presumption of intent arising 
from guilt, for, not being a moral agent, he cannot he guilty. 
The defence being that he is not amenable to penal adjudica- 
tion—that he is a being outside of the law—the maxims as 
to guilt or innocence belong entirely to another issue, and 
have no relevancy. If a plea to the jurisdiction is entered to 
the effect, for instance, that the offence alleged was committed 
in a foreign country, against a foreign prince, or if there be a 
motion for a transfer of venue, the court, in ruling the question, 
has nothing to do with presumptions of innocence or guilt. 
It is governed by a preponderance of testimony. A fortiori 
must this be the case on the issue of insanity, when the defence 
is, not partial or exceptional, but universal and thorough un- 
amenability to criminal process. 
§ 269. The impracticability of any other fixed standard can 
be readily demonstrated. A man, for instance, is tried for 
assault, in a jurisdiction where, on a verdict of insanity being 
rendered, the law is that the defendant shall he committed 
to permanent close confinement in the “ criminal” wards of a 
public insane asylum. If he be convicted of the assault, his 
punishment is a fine and a few days’ imprisonment. If he be 
acquitted on the ground of insanity, he is incarcerated per- 
manently in an asylum. The judge, in conformity with the 
decisions last mentioned, charges the jury that if there is 
“ any doubt as to the defendant’s sanity,” he must he found 
insane. Hence we have a man, simply because a doubt is 
raised as to his sanity, declared insane, and condemned to 
unlimited imprisonment in an asylum. The defence may 
not have been taken by himself. It may have been the pre- 
text of relatives or rivals, who, finding him troublesome, 
desire to get him out of the way. This would make no 
difference, for the very first principle of the defence of insanity 
263 § 269a] 
EVIDENCE OF INSANITY. 
[book i. 
is that it should, not be taken by the defendant himself, who, 
it is supposed, is not competent to take it. But, whether 
taken by his friends, or by those secretly hostile to his remain- 
ing free, we must accept, if we adopt the view just stated, the 
monstrous proposition that a man is to be decreed a lunatic, 
and stripped of liberty and civil rights, not upon proof that 
he is insane, but simply because as to his sanity there has been 
raised a doubt. 
§ 269a. Or let us take the alternative and suppose the trial 
to occur in a jurisdiction in which a verdict of insanity is not 
followed by incarceration in an asylum, but where, to produce 
this result, there must be an inquisition of lunacy. Suppose 
that the defendant, on a plea of lunacy to an indictment for 
crime, is acquitted, not because there is not a preponderance 
of evidence to prove him sane, but because this sanity is not 
proved beyond reasonable doubt. Suppose, then, he being 
thus acquitted on the ground of insanity, and being a danger- 
ous person to go at large, an inquisition of lunacy is taken 
out, and the case goes to trial on the same evidence. Of course, 
on such an issue, mere doubt as to his sanity will not support a 
finding of insanity, and so the judge is bound to tell the jury, 
and a verdict of sanity is found. Hence, it may be, by the 
same court and the same judges (as is the case in our ordinary 
county court practice), juries are directed to find the same 
man, and it may be in one and the same term, both sane and 
insane. Hor is this a merely speculative mischief. It in- 
volves a great failure of justice, for it not only disturbs the 
community by setting forth an uncertain and fluctuating 
standard on the great question of penal responsibility, but it 
declares that there is a class of men too insane to be im- 
prisoned for crime, and yet not insane enough to be imprisoned 
as lunatics, and who, without any power to restrain them, 
must be allowed to run at large. But this cannot be. Of all 
questions this is the one that most demands uniformity of de- 
cision. And this uniformity can only be reached by declaring 
that in all cases sanity or insanity is to be determined by 
preponderance of proof. 
264 BOOK I.] 
BURDEN OF PROOF. 
[§ 272 
(51) Effect of commissions of lunacy. 
§ 270. The fact that there has been a commission of lunacy 
duly taken out against the testator, creates a prima facie case 
against a will executed by the testator during the continuance 
of the commission. Eut it is not a conclusive bar.(m) And 
it may be shown that the inquisition was ex parte and partial.(?i) 
The finding is not binding on third parties, and operates 
merely to destroy the presumption of sanity, and to throw the 
burden of proving it on the party alleging it.(o) 
The effect of such commissions on the party himself, so far 
as involves his right to contract, has been already discussed.(p) 
Where an inquisition finds that a man is a lunatic or habit- 
ual drunkard, it is prima facie evidence of incompetency at 
any time covered by the finding, and a party setting up a 
contract made by the lunatic or habitual drunkard during 
this time must show he was sane at its execution, for the pre- 
sumption in favor of sanity is thereby changed.^) 
§ 271. Fits of insanity for twenty years prior to the execu- 
tion of certain deeds by a man found some years afterwards, 
by a commission, to have been all along insane, have been 
ruled in England to be no answer to a prima facie case, on an 
issue as to his sanity at the execution of the deeds.(r) 
(c1) Witnesses. 
(a2) Non-experts. 
§ 272. Witnesses, who are not medical experts, who have 
been familiar with the person whose sanity is under investiga- 
tion, may, after stating facts under their own observation, be, 
as a general rule, asked whether, from such person’s general 
(m) Titlo-w v. Titlow, 54 Penn. St. 216; Stackhouse v. Horton, 15 1ST. J. 
Cb. 202; Robinson v. Robinson, 39 Yt. 207 ; Wliiteneck v. Stryker, 1 Green 
Cb. 8. 
(n) Bannatyne ®, Bannatyne, 14 Eng. Law and Eq. 581. 
(o) Snook v. Watts, 11 Beav. 105 ; Elliott v. Inee, 7 De G. M. & G. 476. 
(p) Supra, § 13. 
(q) Noel v. Karper, 53 Penn. 97. 
(r) Ferguson v. Barrett, 1 F. & F. 613. See Jacob v. Richards, 18 Beav. 
300. 
265 § 272] 
EVIDENCE OF INSANITY. 
[book t. 
appearance and conversation they consider him capable of 
making a contract or of transacting important business.(s) 
But a non-professional witness will not be compelled to answer 
hypothetical questions as to a party’s sanity.(t) Nor will such 
witnesses, unless testamentary, be permitted to give mere 
opinions, disconnected from the facts on which such opinions 
are based.^1) And in New York,(w) Texas,(w) 
and as well as in England, in the courts of com- 
mon law, the tendency is to confine such non-experts to a mere 
statement of facts. 
Thus in New York persons not experts cannot be asked such 
questions as these: “ From what you saw of the prisoner that 
night, what impression did his words and acts make upon your 
mind ?” “ What impression as to his condition of mind did 
his conduct and acts and words make upon you at the time ?” 
They are not competent to give an opinion upon this subject, 
nor as to whether the facts testified to by them indicated mental 
unsoundness.(y) And it is generally declared in this State that 
the opinions of witnesses, not medical men or experts, and not 
the subscribing witnesses to a will, cannot be given on the 
question of the sanity of the It was said, however, 
by a learned dissenting judge, that the opinion of a witness, 
acquainted with the person whose capacity is in question, and 
(s) Rambler v. Tryon, 7 S. & R. 90; Wilkinson v. Pearson, 23 Penn. St. 
147 ; Titlow v. Titlow, 54 Penn. St. 216 ; Grant v. Thompson, 4 Conn. 403 ; 
Kinne v. Kinne, 9 Conn. 102; Clark v. State, 12 Ohio, 483; Clary v. Clary, 
2 Ired. Law, 78; Doe v. Regan, 5 Blackf. 217; Cram v. Cram, 33 Yt. 15; 
Wilkinson v. Moseley, 30 Ala. 562 ; Wheeler v. Alderson, 3 Hagg. 574 ; 
Wright v. Tatham, 5 Cl. & F. 692 ; Harrison v. Rowan, 3 Wash. C. C. 580 ; 
Morse v. Crawford, 17 Yt. 499 ; Baldwin v. State, 12 Mo. 223. 
(t) Dunhem’s Appeal, 27 Conn. 192. 
(£') Vanauken’s Case, 2 Stock. Ch. 186 ; Gibson v. Gibson, 9 Yerger, 328; 
Farrell v. Brennan, 32 Mo. 328; Potts v. House, 6 Ga. 324. See Dorsey v. 
Warfield, 7 Md. 37; Weems v. Weems, 19 Md. 334; Eckert v. Flowry, 43 
Penn. St. 46. 
(m) Dewitt v. Bailey, *5 Selden, 371; Clapp v. Fullerton, 34 N. Y. 190. 
(®) Com. v. AYilson, 1 Gray, 339. 
O) Gelirke v. State, 13 Tex. 568. 
(x) Caleb v. State, 39 Miss. 722. 
(y) Real v. People, 42 New York, 270. 
(2) Denio, Willard, and Moore, JJ., dissenting. Dewitt v. Barley, 5 Sel- 
den (N. Y.), 371. 
266 BOOK I.] 
NON-EXPERTS. 
[§ 274 
founded on his own observation, is admissible, if the facts on 
which his opinion rests are also stated.(ft) 
In Hew Hampshire, the opinion of a witness, who is not an 
expert, as to the sanity of a respondent, is incompetent, although 
formed from observation of the respondent’s appearance and 
conduct.(6) So, in Missouri, it is ruled that such witnesses 
should not be asked “ if they thought his mind sound enough 
to make a will,” as that would involve a question of law for 
the court to determine, and not the witness.(c) 
§ 273. It is conceded, however, even by the courts most 
rigorous in limiting such testimony, that any witness, layman 
or expert, unskilled or skilled, may testify as to the fact of 
intoxication.(J) And subscribing witnesses to wills may, even 
on the strictest rule, be always permitted to answer as to the 
testator’s sanity.(e) 
§ 274. The following summary of the general law as to non- 
experts is taken from the opinion of Judge Doe, in a late (1870) 
important case in Hew Hampshire. “A non-expert may testify 
that, in his opinion, the plaintiff was sincerely attached to the 
defendant;^1) that the plaintiff' ‘seemed satisfied’ with a 
business arrangement proposed to him by the witness ;(e2) that 
the witness thought a horse ‘ was not then sound, * * * his 
feet appeared to have a disease of long standing ;’(e3) that a 
horse ‘appeared to be well, and free from disease, that he 
travelled well, ate well, breathed freely;’ that, ‘running him 
round the yard, he showed distress in his breathing;’ that he 
thought he ‘ never saw any indication of the horse being dis- 
(a) Per Denio, J. Dewitt v. Barley, 5 Selden (N. Y.), 371. 
(5) Doe, J., dissenting. State v. Pike, 39 N. H. 399; S. P., Boardman v. 
Woodman, 47 N. H. 120. 
(c) Farrell v. Brennan, 32 Mo. 328. 
(d) People v. Eastwood, 14 N. Y. 562 ; Galiagan v. Bost. and Low. R. R., 
1 Allen, 187; State v. Pike, 49 N. H. 399. 
(e) Chase v. Lincoln, 3 Mass. 237; Poole v. Richardson, ib. 330 ; Buck- 
minster v. Perry, 4 Mass. 593; Newman v. Ide, 5 Pick. 510. Castner v. Sli- 
ker, 33 N. J. L. (4 Vroom) 95, 507. 
(e1) McKee v. Nelson, 4 Cow. 355, cited as law in Robertson v. Stark, 
15 N. H. 114. 
(e2) Bradley v. S. F. M. Co., 30 N. H. 487, 491. 
(.e3) Willis v. Quimby, 31 N. H. 485, 487. 
267 §274] 
EVIDENCE OF INSANITY. 
[book i. 
eased ;’(e4) that there were, at a certain place, ‘ some hard exca- 
vations, but nothing approaching the nature of hard-pan ;’(e5) 
that a lady’s health, in the opinion of the witness, ‘ had not 
been near so good since’ a certain time ‘ as before,’ ‘ that she 
had a very severe fit of sickness in the fall of 1861, and that 
she recovered very slowly after she began to mend,’ that the 
witness ‘considered her very sick;’ that the defendant, in 
carrying a barrel of flour at one time, and a barrel of sugar at 
another, ‘ seemed to carry them easily;’ ‘ that he should call 
the defendant a very active man;’ ‘ that he had a scuffle with’ 
the defendant, in which the defendant ‘ was too much for 
him ;’(e6) that the witness ‘ did not see any appearance of 
fright’ in a horse at the time of an accident, that the horse 
‘ did not appear to be frightened in the least, before he went 
off the bank or afterwards,’ that ‘ he appeared to be rather a 
sulky-dispositioned horse to use ;’(e7) that a carriage not seen by 
the witness appeared, from the sound, to start from a certain 
point ;(e8) that the plaintiff ‘ seemed to suffer, and seemed 
weak and debilitated,’ that ‘ she did not seem to be excited, 
frightened,’ that ‘ she was lamer in the morning’ than the day 
before ;(e9) and, since the restoration of the common law, 
opinions of the value of property are admitted here as well as 
everywhere else.”(e10) (/) 
(e4) Spear v. Richardson, 34 N. H. 428, 429, 480, 431. 
(e5) Currier v. B. &M. R. R., 34 N. H. 498, 501, 508. 
(e6) State v. Knapp, 45 N. H. 148, 149, 154. 
(e7) Whittier v. Franklin, 46 N. H. 23. 
(es) State v. Sliinborn, 46 N. H. 497, 501. 
(e9) Taylor v. Railroad, 48 N. H. 304, 306, 309. 
(em) Pike ». State, 49 N. H. 426. 
(/) The competency of witnesses, not experts, to state their opinion, based 
on personal observation, as to a party’s sanity, is thus elaborately discussed 
by Doe, J., in the foregoing case:— 
“In England no express decision of the point can be found for the reason 
that such evidence has always been admitted without objection. It has been 
universally regarded as so clearly competent that it seems no English lawyer 
has ever presented to any court, any objection, question, or doubt in regard to 
it. But in Wright v. Tatham, 5 Cl. & Fin. 670, S. C., 4 Bing. N. C. 489, the 
question was involved in such a manner, and the number and strength of the 
judicial opinions were such, as to make that case an authority of the greatest 
weight in favor of the competency of the evidence. 
“ In addition to that case and the other English authorities cited in Board- 
268 BOOK I.] 
WHO ARE EXPERTS. 
[§ 275 
(a3) Who they are, and what are their qualifications, 
(<b2) Experts. 
§ 275. Here emerges the first difficulty in this vexed ques- 
tion. “Experts” are to have a certain decree of credit at- 
man v. Woodman, 47 N. H. 144, are Lowe v. Jolliffe, 1 W. Bl. 365 ; Attor- 
ney-General v. Parntlier, 3 Br. C. C. 441, 442; King v. Arnold, 16 St. Tr. 
695, 706, 707, 708, 710, 711, 712, 713, 715, 717, 719, 723, 724, 725, 726, 727, 
728, 730, 732, 735, 736, 737, 738, 739, 742, 746, 747, 748, 750, 751, 753, 754, 
755, 756, 757, 758, 759, 760, 761, 762, 763 ; King «. Ferrers, 19 St. Tr. 885, 
923, 924, 925, 926, 927, 928, 929, 930, 931, 932, 933, 937, 938, 939, 940, 941, 
952, 953 ; King v. Frith, 22 St. Tr. 307, 313, 314, 315, 317 ; King v. Hadfield, 
27 St. Tr. 1281, 1299, 1301, 1304, 1305, 1330, 1331, 1332, 1337, 1347, 1350, 
1453; King ©. Bellingham, Annual Register 1812, part 2, pp. 304, 307; 
King v. Bowler, Ann. Reg. 1812, part 2, pp. 309, 310 ; King v. Offord, Ann. 
Reg. 1831, part 2, pp. 107, 108; Queen v. Oxford, 9 C. & P. 525, 317, 318; 
S. C. in Ann. Reg. 1840, part 2, pp. 249, 257, 259; S. C. in 1 Townsend 
Modern State Trials, 102, 125, 132, 133, 134, 135 ; Queen v. Higginson, 1 C. 
& K. 129, 130; Queen v. M’Naughten, Ann. Reg. 1843, part 2, pp. 345, 353, 
354, 355, 356, 357; S. C. in 1 Townsend Mod. St. Tr. 344, 347, 348, 349, 
384, 385, 387, 388, 389, 390, 391, 392 ; Queen v. Dove, J. F. Stephen Cr. Law, 
391, 394, 395, 396 ; Queen v. Mitchell, Ann. Reg. 1863, part 2, pp. 157, 159 ; 
Queen v. Townley, Ann. Reg. 1863, part 2, pp. 296, 302, 304 ; Queen ©. 
Baker, Ann. Reg. 1867, part 2, pp. 217, 224. 
“ The number of English authorities is limited only by the number of fully 
reported cases in which the question of sanity has been raised. 
“ The uniform rule in England, from the earliest times to the present, may 
be wrong ; but, on a common-law subject like this, it is entitled to considera- 
tion. It should be set aside, and a new rule should be established if it can be 
clearly shown that all the authorities of the native land of the common law 
have been erroneous from the beginning, and in conflict with the principles 
of the common law, or that they are not applicable to our institutions or the 
circumstances of this country. But w’hoever asserts that such a condition 
exists has the task of maintaining the assertion ; and that task on this ques- 
tion has never been performed. 
“ In this country the authorities are almost equally unanimous in favor of 
the competency of the evidence. Lester v. Pittsford, 7 Yt. 158; Morse v. 
Crawford, 17 Yt. 499 ; Clifford v. Richardson, 18 Yt. 620, 627 ; Cram v. Cram, 
33 Yt. 15; Crane v. Northfield, 33 Yt. 124; Cavendish v. Troy, 41 Vt. 99, 
108 ; Grant v. Thompson, 4 Conn. 203 ; Ivinne v. Kinne, 9 Conn. 102 ; Dun- 
ham’s Appeal, 27 Conn. 192; Swift’s Ev. Ill; Stewart v. Lispenard, 26 
Wend. 291, 308, 309; Culver v. Haslem, 7 Barb. 314; DeWitt v. Barley, 13 
Barb. 550; S. C., 9 N. Y. 371; S. C., 17 N. Y. 340 ; Delafield v. Parish, 25 
N. Y. 37, 38; Clapp v. Fullerton, 34 N. Y. 190 ; Clark v. Sawyer, 3 Sandf. 
Ch. 357; Den ©. Gibbons, 2 Zab. 117, 135, 136; Whiteneck v. Stryker, 1 
Green Ch. 8 ; Sloan v. Maxwell, 2 Green Ch. 563, 583, 584, 586, 588, 592, 
269 §275] 
EVIDENCE OF INSANITY. 
[book i. 
tached to their testimony, and indeed, according to views 
expressed in 1871, in Hew Hampshire,(y) are to declare 
594, 599, 602 ; In the matter of Vanauken, 2 Stock. Cli. 192; Turner ®, Cliees- 
man, 15 N. J. Ch. 243 ; Garrison ®. Garrison, id. 266 ; Rambler ®. Tyron, 7 
S. & R. 90, 92; Irish ®. Smith, 8 S. & R. 573, 576 ; Wogan ®. Small, 11 S. & 
R. 141, 144; Grahill ®. Barr, 5 Penn. St. 441, 443 ; Wilkinson ®. Pearson, 23 
Penn. St. 117, 120 ; Bricker ®. Lightner, 40 Penn. St. 199 ; Duffield ®. Mor- 
ris, 2 Harring. (Del.) 375, 377, 385 ; Brooke ®. Townsend, 7 Gill, 1028; 
Stewart ®. Redditt, 3 Md. 67, 78; Stewart ®. Spedden, 5 Md. 433, 446 ; Dor- 
sey ®. Warfield, 7 Md. 65, 73 ; Weems ®. Weems, 19 Md. 334, 345 ; Temple ®. 
Taylor, 1 Hen. & Munf. 476, 478 ; Burton ®. Scott, 3 Rand. 399, 403, 404, 
405; Mercer ®. Kelso, 4 Grat. 106, 118; Clary®. Clary, 2 Ired. 78; Hey- 
ward ®. Hazard, 1 Bay, 335, 340, 341, 342, 343, 344; Griffin ®. Griffin, R. M. 
Cliarlt. 217, 218, 220, 221, 223 ; Potts ®. House, 6 Ga. 324 ; Berry ®. State, 
10 Ga. 510, 529 ; Walker ®. Walker, 14 Ga. 242, 251; Roberts ®. Trawick, 13 
Ala. 68, 84; Norris ®. State, 16 Ala. 776; Florey ®. Florey, 24 Ala. 241, 247; 
Powell v. State, 25 Ala. 21 ; Stubbs ®. Houston, 33 Ala. 355, 564; In re Car- 
michael, 36 Ala. 514, 522 ; Gibson ®. Gibson, 9 Yerg. 329 ; Baldwin ®. State, 
12 Mo. 223 ; Farrell ®. Brannan, 32 Mo. 328 ; Kelly ®. McGuire, 15 Ark. 555, 
601 ; Abraham ®. Wilkins, 17 Ark. 292, 322 ; State ®. Gardner, Wright, 392, 
398 ; Clark ®. State, 12 Ohio, 483, 490 ; Doe ®. Reagan, 5 Blackf. 217 ; Roe ®. 
Taylor, 45 111. 485; Pelamourges ®. Clark, 9 Iowa, 1, 11-19, 29; State®. 
Felter, 25 Iowa, 67; White ®. Bailey, 10 Mich. 155,161 ; Beaubien ®. Cicotte, 
12 Mich. 459, 495-508; Case of Lawrence, tried in the Dist. of Columbia, 
before Judge Cranch and two other judges, for shooting at President Jackson, 
48 Niles Reg. 119 ; Hoge ®. Fisher, Pet. C. C. 163, 165 ; Harrison ®. Rowan, 
3 Wash. C. C. 580, 582, 586. 
“ On the other side there are authorities in Maine, Massachusetts, and 
Texas, which hold a contrary doctrine ; but, on examination, they are found 
to occupy very feeble positions. 
“ So far as the history of the law, on this subject, has been brought to the 
notice of this court, the first time the competency of this evidence was doubted, 
was in the jury trial of a probate case at Cambridge, Mass., in 1807. The 
only account we have of that affair is the report of Mr. Tyng, who says that 
the court permitted the subscribing witnesses to the will to give their opin- 
ions of the sanity of the testator, and that ‘ other witnesses were allowed to 
testify to the appearance of the testator, and to any particular facts from which 
the state of his mind might be inferred, but not to testify merely their opinion 
or judgment.’ Poole ®. Richardson, 3 Mass. 330. From the conspicuous 
and emphatic use of the word ‘merely,’ and from what occurred in subse- 
quent Massachusetts cases, there is reason to suspect that the only point ruled 
in this case was, that the witnesses were allowed to give their opinions when 
they stated the particular facts from which the state of the testator’s mind 
was inferred by them, ‘but not to testify merely their opinion or judgment.’ 
270 
(y) See supra, §§ 190-199. BOOK I.] 
wno ARE EXPERTS. 
[§ 275 
what irresponsibility is; but who are “ experts ?” Forensic- 
psychological medicine is the specialty; and an expert in this 
They ‘ were allowed to testify to the appearance of the testatorand they 
could not do that without giving their opinions. It was a ruling made hastily 
and probably instantaneously, without argument, during a trial before a jury, 
at a time when the hurry of clearing the crowded dockets of Massachusetts 
gave no opportunity for deliberation. 
“ If the court had been aware that this ruling overturned all the authorities 
and the uniform practice of England and America from the beginning of the 
common law to that day, it is not to be presumed that the ruling would have 
been made without a formal opinion reduced to writing by some member of 
the court, formally delivered, and formally reported, giving some reason for 
the innovation. If they had been conscious of the novel and revolutionary 
character of the precedent, they would not have introduced it so summarily 
and inconsiderately. 
“ This was not the only mistake made at nisi prius. In the previous month, 
in the trial of another probate case, when the only issue was upon the sanity 
of a testator, and the formal execution of the will was therefore not in ques- 
tion, the court refused to allow two of the subscribing witnesses of the will 
to testify because the third witness was not produced. Chase ®. Lincoln, 3 
Mass. 236. Nor are these the only peculiarities in the precedents of that State. 
At the trial of another probate case, the physicians who attended the testatrix 
in her last sickness were asked whether in their opinion she was sane. Ob- 
jection was made to the competency of any opinion. The court ruled that 
the attending physicians might give their opinions, but must state the par- 
ticular circumstances or symptoms from which they drew their conclusions. 
Hathorn v. King, 8 Mass. 371. And in Dickinson ®. Barber, 9 Mass. 225, it 
was held on that ground that certain depositions of physicians had been 
rightly excluded. In Com. ®. Rich, 14 Gray, 335, 337, it was held, as matter 
of law, that a physician of thirty years’ practice, who testified that he had 
made the subject of mental disease a study, but not a special study, and had 
had the usual experience of practising physicians on the subject, could not be 
questioned upon a hypothetical case stated in the usual manner. These cases 
show a peculiar and exceptional system of practice on these subjects which 
has never prevailed in this State. 
“In Buckminster®. Perry, 4 Mass. 593, ‘two or three witnesses were of 
opinion that the testator was much broken and very forgetful about the time 
the will was made.’ Instead of rejecting this evidence, the court charged 
the jury ‘ that the evidence given by the appellants to invalidate the will de- 
served but little consideration.’ In Needham ®. Ide, 5 Pick. 510, the jury 
were instructed that the ‘ mere opinions of other witnesses’ than those wdio 
subscribed the will ‘ were not competent evidence, and were not entitled to 
any weight, further than they were supported by the facts and circumstances 
proved on the trial.’ These witnesses gave their opinions ‘without being 
asked;’ objection was not made to their opinions; their opinions were not 
rejected at the time they were given, nor absolutely excluded from the con- 
sideration of the jury by the charge of the court. But in Com. ®. Wilson, 1 
271 § 275] 
WHO ARE EXPERTS. 
[book i. 
specialty must be skilled in three departments of science: 
(1) law, sufficient to determine what is the “ responsibility” 
Gray, 337, 339, at nisi prius, in Hubbell v. Bissell, 2 Allen, 196, 200, by a 
dictum, and in Com. v. Fairbanks, 2 Allen, 511, in a per curiam decision, it 
was held that the incompetency of the opinions of non-experts was not an 
open question in Massachusetts. The court merely refused to investigate the 
question. In this abrupt and unsatisfactory manner, without any considera- 
tion from first to last, has this exception become established in that State. Of 
the four judges reported as present at the October term, 1807, at Cambridge, 
we do not know who were present at the trial of Poole v. Richardson. The 
next year, at Cambridge, when Chief Justice Parsons charged the jury in 
Buckminster v. Perry, witnesses were allowed to testify that in their opinion 
‘ the testator was much broken and very forgetfuland this evidence was 
not excluded from the consideration of the jury. In Needham v. Ide no 
opinion of the court is reported; but the reporter says that the court over- 
ruled an objection taken to the instruction given to the jury that the mere 
opinions ‘ were not entitled to any weight further than they were supported 
by the facts and circumstances proved on the trial.’ After that, at nisi prius, 
and in a dictum, and in a per curiam decision, the court held themselves con- 
cluded by their own precedents. 
“ The only judge in Massachusetts who appears to have deliberated on the 
subject gave his judgment against the peculiar practice of that State. In 
Baxter r. Abbott, 7 Gray, 71, 79, Judge Thomas says: ‘All lawyers know 
how difficult it is to try issues of sanity with the restrictions as to matters of 
opinion already existing; how hard it is to make witnesses distinguish be- 
tween matters of fact and opinion on this subject; between the conduct and 
traits of character they observe, and the impression which that conduct and 
those traits create, or the mental conclusion to which they lead the mind of 
the observer. If it were a new question, I should be disposed to allow every 
witness to give his opinion, subject to cross-examination, upon the reasons 
upon which it is based, his degree of intelligence, and his means of obser- 
vation.’ 
“The counties of Massachusetts which became the State of Maine, thirteen 
years after the exception was introduced in Poole v. Richardson, did not 
abandon their practice on that point, as they did not abandon the general 
system of practice which had grown up with them while they were a part of 
Massachusetts. For thirteen years the exception had the same authority, and 
was administered by the same court, in Essex and in York. As it was never 
examined in Massachusetts on the south, so it has never been examined in 
Massachusetts on the east. Ware v. Ware, 8 Greenl. 42, 54, 55, 56 ; Wyman 
®. Gould, 47 Me. 159. It is equally regarded in both as an inherited pecu- 
liarity for which no one is responsible. Its position as an authority was not 
materially strengthened by the division of the State. 
“ In Gelirke v. State, 13 Texas, 568, it was summarily held, without any 
citation of authority or consideration of principle, that it would have been 
improper to receive as evidence the vague, indefinite expression of a witness, 
that the prisoner looked like or acted as an insane person. 
272 BOOK I.] 
WHO ARE EXPERTS. 
[§ 275 
which is to be the object of the contested capacity; (2) psy- 
chology, so as to be able to speak analytically as to the pro- 
“ Thus stand the precedents of other jurisdictions at present, so far as they 
have been brought to the notice of this court; Massachusetts, Maine, and 
Texas on one side; the rest on the other; and no attempt in either of the 
three States to justify their peculiar exception. If this amounts to a conflict 
among the authorities, it must be regarded as inconsiderable. 
“In many of the cases in which the opinions of ordinary witnesses have 
been received, the question has been fully considered, and their competency 
established on solid ground. Testimony of opinion may be given where, 
from the general and indefinite nature of the inquiry, it is not sus- 
ceptible of direct proof. Thus upon a question of insanity witnesses not 
professional men may be permitted to give their opinion in connection with 
the facts observed by them. But this evidence is always confined to those 
who have observed the facts, and is never permitted where the opinion of the 
witness is derived from the representation of others. Upon a question of 
insanity, for instance, witnesses who have observed the conduct of the 
patient, and been acquainted with his conversation, may testify to his acts 
and sayings, and give the result of their observation ; but where mere opinion 
is required upon a given state of facts, that opinion is to be derived from pro- 
fessional men.’ Lester v. Pittsford, 7 Vt. 158,101. ‘ The law is well settled, 
and especially in this State, that a witness may give his opinion in evidence, 
in connection with the facts upon which it is founded, and as derived from 
them, though he could not be allowed to give his opinion founded upon facts 
proved by other witnesses.’ Morse v. Crawford, 17 Vt. 499, 502. ‘Where 
mere opinion is required upon a given state of facts not connected with the 
personal observation of the witness, that opinion is to be received from pro- 
fessional men alone.’ Cram v. Cram, 33 Vt. 15, 18. These extracts are a 
sufficient answer to the objection made against some of the authorities that 
they require the witness to state facts as well as opinion. The objection is 
as invalid as it would be if made against the admission of opinions as to phy- 
sical health. A witness cannot testify that in his opinion the defendant was 
sick, or well, without first showing that he had an opportunity of forming 
an opinion from facts observed by himself. If a witness, not an expert, is 
first asked whether, in his opinion, A. was sane or insane at a certain time, 
the witness would not be allowed to answer the question. It must first appear 
that his opinion is formed upon his own observations and not upon the testi- 
mony of other witnesses, or upon hearsay, or upon a hypothetical case. If 
his opinion is formed upon the testimony of other witnesses, the jury have 
as good an opportunity as the witness to form an opinion ; if it is formed upon 
hearsay, it is mere indirect proof of hearsay ; of a hypothetical case, the jury 
can form an opinion as well as a non-expert witness. But, if the opinion of the 
witness is formed upon his own observations, he had a better opportunity to 
form an opinion than the jury can have from a description of the acts and words 
of the person whose sanity is in question; because such a description cannot 
generally convey any adequate idea of the signs of sanity or insanity as they 
appear to an observer. It is necessary as far as possible that the impression 
vol. i.—18 
273 §275] 
EVIDENCE OF INSANITY. 
[book i. 
perties of the human mind; (3) medicine, so far as concerns 
the treatment of the insane, so as to speak inductively on the 
produced by the acts and words should be conveyed to the jury, and it cannot 
generally be conveyed by a mere description or recital of them ; therefore the 
opinions of observers constitute one of the classes of testimony known in law as 
the best evidence ; not the best because it happens to be the only available evi- 
dence in a particular case, but the best because it belongs to one of the best 
species of evidence usually available—the best in the nature of things—the 
best by reason of ‘ the general and indefinite nature of the inquiry, and the diffi- 
culty of producing direct proof of a mere mental condition.’ Crane v. North- 
field, 33 Vt. 124, 125. ‘ The best testimony the nature of the case admits of 
ought to be adduced ; and on the subject of insanity, in my judgment, it 
consists in the representation of facts and of the impressions which they 
made.’ Grant v. Thompson, 4 Com. 203. 
“ ‘The judgment which we form as to the mental condition of an acquaint- 
ance depends as much upon his looks and gestures connected with his con- 
versation and conduct as upon the words and actions themselves, and yet it 
would be a hopeless task for the most gifted person to clothe in language all 
the minute particulars with their necessary accompaniments and qualifica- 
tions which have led to the conclusion which he has formed.’ Denio, J., in 
DeWitt v. Barley, 9 N. Y. 371, 389, 390. ‘ No mere description of the wrin- 
kles of the face, of the tones of the voice, or the color of the hair, would be 
likely to convey any very accurate impression as to the precise age of the 
person described. The case of McKee v. Nelson, 4 Cow. 355, is an example 
belonging to the same class. That was an action for breach of promise of 
marriage, and a witness who knew the plaintiff, and had observed her con- 
duct and deportment toward the defendant, was permitted to testify whether 
in her opinion the plaintiff was sincerely attached to him : a fact which it is 
plain could be proved in no other way. Trelawney v. Coleman, 2 Stark, 191, 
is another case of the same kind. There, in an action for criminal conversa- 
tion, a witness, who was acquainted with the parties, was permitted to give her 
opinion as to the degree of affection entertained by the wife for her husband. 
* * * To me it seems a plain proposition, that, upon inquiries as to mental 
imbecility arising from age, it will be found impracticable in many cases to 
come to a satisfactory conclusion without receiving to some extent the opinions 
of witnesses. How is it possible to describe in words that combination of 
minute appearances upon which a judgment in such cases is formed ? The 
attempt to try such a question, excluding all matter of opinion, would, in 
most cases, I am persuaded, prove entirely futile. * * * A witness can 
scarcely convey any intelligible idea upon such a question, without infusing 
into his testimony more or less of opinion. Mental imbecility is exhibited, 
in part, by attitude, by gesture, by the tones of the voice and the expression 
of the eye and the face. Can these be described in language so as to convey 
to one not an eye-witness an adequate conception of their force ? * * * 
It certainly strikes me that few questions can be suggested about which it is 
possible to raise a doubt, which are more conclusively settled by authority 
than that under consideration. * * * This court itself, since the former 
274 BOOK I.] 
AVHO ARE EXPERTS. 
[§ 275 
same subject. If either of these factors is ivanting, a witness 
cannot be technically an expert. Thus, in view of the fact 
decision in this case, has, upon a question strictly analogous, unanimously 
established a different rule. I refer to the case of The People v. Eastwood, 
14 N. Y. 562. Upon the trial of that case, a witness was asked whether, at 
the time of the homicide, the prisoner was intoxicated. This question was 
objected to and excluded upon the ground that it called for the opinion of the 
witness. Exception was taken to this ruling, and upon that exception the 
case was brought to this court, where it was unanimously held that the evi- 
dence ought to have been received, and a newT trial was granted for that 
among other reasons. The admissibility of the evidence was there placed 
upon the precise ground which has been assumed here, viz., that the appear- 
ances which indicate intoxication cannot be so perfectly described in words 
as to enable persons not eye-witnesses to judge with accuracy on the subject. 
The questions in that case and in this are, in principle, identical, and 
opinions cannot be held inadmissible in the present case, without virtually 
overruling that of Eastwood.’ DeWitt v. Barley, 17 N. Y. 340, 344, 348, 
350, 352. 
“ ‘ A witness may state facts, may give the look of the eye, and the action 
of the man, but, unless he is permitted to express an opinion, he cannot 
convey to the mind distinctly the condition of the man that such acts and 
looks portray.’ In the matter of Vanauken, 2 Stock. Ch. 186,192. How can 
a witness ‘ give the look of the eye,’ without giving an opinion ? ‘ The opinion 
of a witness as to the sanity of a person depends for its weight on the capacity 
of the witness to judge, and his opportunity.’ Burton v. Scott, 3 Rand. 399, 
403. ‘ And so it is in regard to questions respecting the temper in which 
wrords have been spoken or acts done. AVere they said or done kindly or 
rudely—in good humor or in anger; in jest or in earnest ? AVhat answer 
can be given to these inquiries if the observer is not permitted to state his 
impression or belief? Must a facsimile be attempted, so as to bring before the 
jury the very tone, look, gestures, and manner, and let them collect thereupon 
the disposition of the speaker or agent ? * * * Unquestionably, before a 
witness can be received to testify as to the fact of capacity, it must appear 
that he had an adequate opportunity of observing and judging of capacity. But 
so different are the powers and the habits of observation in different persons, 
that no general rule can be laid down as to what shall be deemed a sufficient 
opportunity of observation, other than it has in fact enabled the observer to 
form a belief or judgment thereupon. So it is in the analogous case of hand- 
writing. If a witness declares that he has seen the party write, whether it 
has been once only or a thousand times, this is enough to introduce the 
inquiry, whether he believes the paper produced to be the party’s hand- 
writing. His belief is evidence, the weight of which must depend upon a 
consideration of all the circumstances under which it was formed.’ Clary v. 
Clary, 2 Ired. 78. Judge Redfield says of the decision in Clary v. Clary, 
‘ The learned judge shows with great ability and abundant success, in our 
judgment, that the rule here adopted is the only one consistent with 
principle.’ 1 Redfield on Wills, 143, p. 16. 
275 276 
EVIDENCE OF INSANITY. 
[book i. 
that insanity and sanity are each of various grades, and that 
in one sense (e. g. collateral delusion) a person may be “ insane” 
“‘A careful daily observer of a person feigning madness would witness 
innumerable acts, motions, and expressions of countenance, which, with the 
attending incidents and circumstances, would conclusively satisfy him of the 
fictitious character of the pretended malady, but which he could never com- 
municate to a jury or scientific man, so as to give them a fair conception of 
their real importance. From poverty of language, these facts, should a 
witness attempt to detail them, would necessarily be mixed up with opinions 
general or partial, in spite of his best efforts to avoid it. There are things 
well known to all persons, which our language only enables us to express by 
words of comparison—such are the peculiar features of the face indicating an 
excitement of the passions, affections, and emotions of the mind, as hope, 
fear, love, hatred, pleasure, pain, etc. Testimony affirming the existence or 
absence of either of these, is but a matter of opinion. So the statement of the 
fact, that a man’s whole conduct is natural, is but the opinion of the witness, 
formed by comparing the particular conduct spoken of with the acts of the 
past life of the individual. It would hardly be claimed that such evidence 
should be excluded, yet it is equivalent to an opinion that the person is sane.’ 
Clark v. State, 12 Ohio, 483, 490. It must appear that ‘ the facts upon which 
it is based have come under his own observation.’ Doe v. Reagan, 5 Blackf. 
217. The subject is fully considered in Beaubien v. Cicotte, 12 Mich. 459, 
495-508, and other cases. 
“ Objection lias been made to some of the cases in which it has been said 
that mere opinions were slight evidence. This has been said in some chancery 
cases, in which the judge, passing upon fact as well as law, has expressed 
his opinion of the weight of certain testimony as a matter of fact within his 
power to decide. In other cases tried by jury, judges have expressed their 
opinions of the weight of this evidence as they were accustomed to express 
their opinions of the weight of other evidence. The practice, having been 
firmly fixed and universal, has often been as visible in the decisions of the 
court as in summing up the evidence to the jury. It embraces all evidence 
alike, and has no bearing upon the competency of particular testimony, which 
is the point now before us. The practice is obsolete in this State, but it is 
settled by authority, that, at common law, the judge may give the jury his 
opinion of the weight of any part or of the whole of the evidence—with this 
limitation, that he is not to give such opinions as imperative upon the jury— 
they are to understand that they are the judges of the facts. 2 Hale’s Hist. 
Com. L. 147; King v. Fisher, 1 St. Tr. 395, 402; King v. Cullender & a., 6 
St. Tr. 687, 700; King v. Keacli, 6 St. Tr. 701, 706, 709; King v. Green & a., 
7 St. Tr. 159, 214, 215, 216, 217, 218, 219; King v. Colledge, 8 St. Tr. 550, 
713, 726 ; King v. Hardy, 24 St. Tr. 1362,1363, 1383; Brembridge v. Osborne, 
1 Stark. 374; Petty v. Anderson, 3 Bing. 170, 171, 172, 173; Solarte v. Mel- 
ville, 7 B. & C. 430, 435; Davidson v. Stanley, 2 M. & G. 221; Calmady v. 
Rowe, 6 M. G. & S. 861, 893; Doe v. Strickland, 8 M. G. & S. 743; Pennell 
v. Dawson, 18 Com. B. 355, 370 ; S. C., 36 Eng. L. and Eq. 431, 440; Attorney- 
General v. Good, McClel. & Y. 286; Sutton v. Saddler, 3 Com. B. (N. S.) 
276 BOOK I.] 
WHO ARB EXPERTS. 
[§ 276 
and yet competent to execute certain kinds of contract, it 
would be as absurd for a witness ignorant of law to speak of 
insanity as incapacitating, as it would be for him to speak of 
physical debility as disqualifying for physical effort, before be 
is informed what the particular effort is. So, also, without 
psychological knowledge, the most experienced superintendent 
of the insane is incompetent; for the question whether one 
function of the mind can become insane while the rest remain 
sane is to be decided mainly on psychological grounds. Nor, 
thirdly, could those possessed of the first two qualifications be 
justly regarded as competent unless they have practical expe- 
rience in the management of the insane.(A) 
§ 276. But, while such, on pure rules of law, is strictly the 
case, the courts have modified first one and then another of 
these requisites, until it is difficult to see what special qualifi- 
cations are still to be viewed as constituting experts. Thus in 
87, 98, 101, 103; Queen v. Townley, Ann. Reg. 18G3, part 2, pp. 306-309; 
Duberly v. Gunning, 4 T. R. 651, 652 ; Tyrwliitt v. Wynne, 3 B. & Aid. 556, 
560, 561; Rex v. Burdett, 4 B. & Aid. 131, 167; 1 Am. L. Rev. 59; Carver 
v. Jackson, 4 Pet. 1, 80 ; Garrard v. Reynolds, 4 How. (U. S.) 123; Harrison 
v. Rowan, 3 Wash. C. C. 580; Phillips v. Kingfield, 19 Me. 375 ; Cunningham 
v. Batchelder, 32 Me. 316; Nutting v. Herbert, 37 N. H. 346, 355; Buck- 
minster v. Perry, 4 Mass. 593, 594; Com. v. Child, 10 Pick. 252, 256; Curl v. 
Lowell, 19 Pick. 25; Davis v. Jenney, 1 Met. 221; Whiton v. O. C. I. Co., 2 
Met. 1; Eddy v. Gray, 4 Allen, 435; States. Lynott, 5 R. I. 295; F. B. Church 
v. Rouse, 21 Conn. 160, 167; N. Y. F. I. Co. v. Walden, 12 Johns. 513 ; 
Gardner v. Picket, 19 Wend. 186 ; Lansing v. Russell, 13 Barb. 521; Hunt v. 
Bennett, 4 E. D. Smith, 647; Buckeley v. Ketellas, 4 Sandf. 450; Grove v. 
Donaldson, 15 Pa. 128; Oyster v. Longnecker, 16 Pa. 269; Stoddard v. Mc- 
Ilwain, 7 Rich. 525; Still v. Glass, 1 Ga. 475.” 
The learned judge next proceeds to an elaborate examination of prior New 
Hampshire rulings, admitting, however, that by Boardman v. Woodman, 47 
N. II. 120, the opinions of non-expert witnesses as to sanity, though formed 
upon observation, were held incompetent. Notwithstanding the argument 
above given, the majority of the court reaffirmed Boardman v. Woodman. 
([h) The principle has been well expressed in New Hampshire, in a case 
where it was held, that, upon questions of skill or science with which a jury 
may not be supposed to be familiar, men who have made the subject-matter of 
inquiry the object of their particular attention or study are competent to give 
their opinion. It must, however, be first shown that they have superior skill 
or scientific knowledge in relation to the question before their opinions can 
be competent. Mere opportunity for observation is not sufficient. Page v- 
Parker, 40 N. H. 59. 
277 278 
[BOOK I. 
EVIDENCE OF INSANITY. 
Vermont it has been said that physicians, and even nurses 
accustomed to attend the sick, are experts in respect to the 
mental capacity of sick persons.(z) So a physician not an 
expert in analytical chemistry was declared in Iowa competent 
to form an analysis of the stomach in a case of poisoning.(J) 
So it has been decided in Hew Jersey that a physician who 
prescribed for a party can be examined as to injuries done to 
the eyes of such party by violence, although he may not be a 
surgeon or an oculist.(A-) So, in Massachusetts, a college gra- 
duate, who testifies that at college he studied chemistry with 
a distinguished chemist, that he had taught chemistry five 
years, is acquainted with gases, has experimented with them 
and used apparatus, and knows how camphene is made, but 
has never experimented with lamps or made or used camphene, 
or paid particular attention to fluid or camphene lamps, is 
held competent to testify as an expert on the safety of a cam- 
phene lamp which he had never before seen.(7) 
§ 277. It has been declared in the latter State, however, that 
a physician cannot be allowed to testify as an expert concern- 
ing the state of the defendant’s mind upon a hypothetical 
case where he has not made the subject of mental disease a 
special study.(m) And so a person who has watched a few 
cases, but is not a surgeon, is held in Mississippi not to be an 
expert in surgery, (n) 
§ 277m “After a witness has been admitted to testify as an 
expert, evidence cannot be given to the jury of the opinions 
of other experts in the same science, as to whether the witness 
was qualified to draw correct conclusions in the science on 
which he had been examined, though such testimony might 
have been properly offered to the court to show the competency 
of the witness before he was admitted to testify.(ttx) The 
rule imposing limitations upon such opinions is now well 
(i) Fairchild ®. Blascomb, 35 Vt. 390. See also Livingston v. Com., 14 
Gi'att. 592. 
O') State v. Hinkle, 6 Iowa, 380. 
(k) Castner v. Sliker, 33 New Jersey Law R. (4 Yroom) 95, 507. 
(0 Bierce v. Stocking, 11 Gray, 174. See Horton v. Green, 64 N. C. 64. 
(m) Commonwealth v. Rich, 14 Gray, 335. 
{n) Caleb v. State, 39 Miss. 722. (»') Tullis v. Kidd, 12 Ala. 648. 
278 BOOK I.] 
WHO ARE EXPERTS. 
279 
established, and the expert’s own character is best protected by 
it, under the maxim of exjoerto crede, since whatever might be 
said by one expert in derogation of another’s opinion might 
in turn be said of his own: mutato nomine de te fabula nar- 
ratur.”(n2) 
§ 278. It has been frequently said, as will hereafter be seen, 
that neither “ quacks” nor mere speculative theorists are ad- 
missible as experts. But who are “quacks?” Are practi- 
tioners of new, and what may at the time be professionally 
viewed as heretical, schools, “ quacks ?” This would have dis- 
qualified both Willis and Esquirol, each of whom was for a 
time viewed as a quack by the body of conservative practi- 
tioners. Is the adherer of a system which, though venerable 
and supported by high past authority, is now regarded as ex- 
ploded? Would a homoeopathic physician be an expert in 
materia medica 9 Would one of Bishop Berkeley’s numerous 
disciples be an expert as to the value of tar-water ? Is even a 
psychological physician of eminence an expert as to matters 
exclusively speculative or ethical? The latter question was 
negatived in 1869, in the Court of Appeals of Kentucky, by 
Chief Justice Williams, who said that “ the opinions of experts, 
not founded on science, but on a mere theory of morals or ethics, 
whether given by professional or unprofessional men, are wholly 
inadmissible as evidence. Hence the opinion of even physi- 
cians, that no sane man in a Christian country would commit 
suicide, not being founded on the science or phenomena of the 
mind, but rather a theory of morals, religion, and future 
responsibility, is not evidence.”(o) 
§ 279. Such are some of the embarrassing points that arise 
when the question “Who are experts?” is examined. So 
far as concerns the first class of questions, it is obvious they 
present the following dilemma: either the court must distin- 
guish between rival schools, in which case it determines in 
advance the renditions of science as to which the experts are 
to testify; or it must decline so to decide, in which case there 
is no ground of discrimination of any kind between professed 
(n2) Ordronaux, Juris, of Med., § 117. 
(<?) St. Louis Mut. Ins. Co. v. Graves, 6 Bush (Ky.), 290. 
279 § 281] 
EVIDENCE OF INSANITY. 
[book i. 
experts. This virtually breaks down the distinction between 
experts and non-experts. 
§ 280. Still more pregnant is the criterion invoked by Chief 
Justice Williams, in a case just cited. To declare that experts 
are admissible to state what is “ scientific,” but not what is 
“speculative” or “ethical,” is to define what “science” is and 
what are its bounds, and to assume the right of rejecting from 
the domain of science anything that the law assumes as be- 
longing to its own specific control. We then have either to 
abdicate such a right, on the part of the court, and to give 
unrestrained license and supreme authoritativeness to experts, 
a position which lias been already shown to be incompatible 
with Anglo-American jurisprudence,(p) or we must revert to 
the old doctrine, that experts, no matter on what they testify, 
simply supply data as to whose competency, relevancy, and 
weight the court is to judge, and as to which the court is 
finally to declare the law. And it is to this result that sound 
reason, as well as recent (1872) adjudications, tend.(g') 
§ 281. Viewing the office of experts in this light, all the 
analogies of law go to declare not merely their admissibility, 
but the high value to be attached to their testimony when 
they agree in testifying as to the positive renditions of a par- 
ticular science or art. Thus mechanics and engineers and 
navigators have been admitted, when speaking thus advisedly, 
in cases of collision or wreck,(r) and persons employed in scan- 
ning handwriting, as to whether a paper was forged.(s) Such, 
also, is the position of seal-engravers, as to the genuineness of 
an impression;^1) of artists, as to whether a picture is an ori- 
ginal or a copy;(0 of postmasters, as to the genuineness of a 
post-mark ;(w) of scientific engineers, as to the effect of an 
embankment on a harbor;(?;) of practical surveyors, as to 
(p) See supra, §§ 190-199. (q) See supra, § 108. 
(r) Malton v. Nesbit, 1 C. & P. 70; Fenwick v. Bell, 1 C. & K. 312; Thorn- 
ton v. Royal Co., Peak, 25. See Lane"®. Wilcox, 55 Barb. 52. 
(s) Revett v. Braliara, 4 T. R. 497; Hammond’s case, 2 Greenl. 33; Moody 
v. Rowell, 17 Pick. 490; Com. v. Carey, 2 Pick. 47; Lyon v. Lyman, 9 Conn. 
55; Hubley v. Vanhorn, 7 S. & R. 185 ; Lodge v. Pliipher, 11 S. & R. 333. 
(s') Folkes v. Chadd, 3 Dougl. 157. (<) Ibid. 
(w) Abbey v. Lill, 5 Bing. 299. (v) Folkes v. Chadd, 3 Dougl. 157. 
280 BOOK I.] 
EXPERTS. 
[§ 282 
whether certain marks were intended as boundaries or ter- 
riors;(w;) and of naturalists, as to whether the habits of certain 
fish were such as to enable them to overcome certain obstruc- 
tions in a river.(:r) And so nothing is more common than to 
examine a surgeon as to whether death resulted from natural 
causes, or from certain artificial agencies which may be the 
subject of inquiry, (y) 
§ 282. When the facts testified to by such experts are undis- 
puted, and when they are the results of a particular science 
or art with which such experts are familiar, then the court 
accepts such facts, and declares the law that therefrom springs. 
When the facts are disputed, then the jury is to determine 
where the preponderance of proof lies. But, when the testi- 
mony of the expert touches either law or speculative psycho- 
logy or ethics, then such testimony is to be viewed as mere 
argument, which, if admissible at all, is to be treated simply 
as if addressed to the judgment of the courtly1) 
(w) Davis v. Mason, 4 Pick. 156. (a:) Cottrill v. Mason, 3 Fairf. 222. 
(y) See Cases quoted in Wharton on Homicide, 241-4; and see also 1 Stark. 
Ev. 154 ; Phil, and Am. on Ev. 899 ; 1 Greenl. on Ev. § 440. 
(yl) The following are extracts from Professor Ordronaux’s excellent work 
on “The Jurisprudence of Medicine,” Phil., 1869 :— 
“In the absence of special statutes,” according to Judge Daly, “the law 
does not exclusively recognize any particular system of medicine or class of 
medical practitioners. The statutory regulations formerly in force in the 
State of New York, requiring, as a condition to the right of recovery for medi- 
cal services, an attendance upon lectures, an examination before a medical 
hoard, and a certificate from an organized association, are repealed. 
“ The repealing act (Session Laws, 1844, cap. 275, p. 406) expressly permits 
any person to practise physic, subject to "punishment as for a misdemeanor if 
convicted of gross ignorance, malpractice, or immoral conduct. 
“Medicine is a progressive rather than an exact science, and, in determin- 
ing the legal significance of the word ‘physician’ or ‘doctor,’ when used in 
a contract, the term must be held to mean any person who makes it his regu- 
lar business to practise physic. Accordingly, where an agreement of em- 
ployment between an opera director and a vocalist provided for a forfeiture 
of a month’s salary in case the latter should fail to attend at any stated per- 
formance, except in the event of sickness, certified to by a doctor, to be ap- 
pointed by the director, held, that the provision was binding upon the artist, 
although the director appointed a person in the practice of what is known as 
the homoeopathic system of medicine. 
“ In adverting to the conflicting views and differences of opinion that exist 
and have ever existed in the practice of the healing art, it is not to call in 
281 § 283] 
[book i. 
EVIDENCE OF INSANITY. 
(ib3) Questions to be put to experts. 
(a*) When there has been personal examination 
§ 283. It is conceded, even in those States where the restric- 
tions on this form of testimony are most severe, that a medical 
question the value of learned, skilful, and experienced physicians, hut merely 
to show the error of attempting, in the present state of medical science, to 
recognize, as matter of law, any one system of practice, or of declaring that 
the practitioner who follows a particular system is a doctor, and that one who 
pursues a different method is not. 
“ But, whatever may be the school or system of medicine to which a phy- 
sician belongs, the law presumes consistency between his profession and his 
practice. For, where there are different schools of practice, all that any phy- 
sician undertakes is, that he understands and will faithfully treat the case, 
according to the recognized law and rules of his own particular school. This 
doctrine is essential to the protection of his rights, as it is of those of his em- 
ployer. Hence, if one employ a homoeopathic or botanic physician, or any 
other reformer in medicine, knowing him to be such, he cannot traverse his 
claim for services rendered with the plea that such services were rendered in 
a different way from what was expected of him or is adopted by orthodox 
practitioners. He is bound by his own choice. And, contrariwise, if a prac- 
titioner of one school of medicine, being employed through predilection for 
that system by any person, treat him according to a different and opposite 
system, either with or without his consent first had and obtained, he inferen- 
tially admits his want of that ordinary skill belonging to his calling, and thus 
perpetrates a fraud upon the public. Should he fail to benefit the patient, the 
evidence of this duplicity and ignorance would certainly destroy all right to 
recover for his services. §§ 7, 8. 
“In the examination of experts, it often happens that neither counsel nor 
witness understand one another, each using terms of various significations 
according to the import most naturally given them by either profession. 
“ This necessarily produces ambiguity and confusion—a condition not 
undesired by him who seeks to make the worse appear the better reason, but 
always to be reprobated in a court of justice, where truth rather than victory 
should be sought after. 
“For these reasons the testimony of experts, constituting a most respon- 
sible branch of the law of evidence, since it is something higher than a mere 
oral recitation of facts, being an opinion ex cathedra upon the value of such 
facts, and thus quasi judicial, is jealously criticized to see that it is tainted by 
no bias towards either party. Under a distorted phraseology, the Avitness 
might easily be made to appear prejudiced, or an undue emphasis placed 
upon a statement of subordinate consequence might elevate it into the sphere 
of a dogmatic assertion. Interpreting an idea as expressed through language, 
or construing that language technically and etymologically instead of in its 
usual and customary sense, may occasion wide differences of mutual compre- 
hension, so that in fact, throughout the whole examination of an expert, more 
282 BOOK I.] 
EXAMINATION OF EXPERTS. 
[§ 283 
■witness may express his opinion as to a party’s sanity, when 
such opinion is drawn from personal This is 
even than in the case of an ordinary 'witness, the doctrines of liberal rather 
than close construction should be applied. 
“And, since human language may be shown always to leave something to 
be interpreted outside of the words themselves, however construed, it follows 
that no precision, however great, can be absolutely perfect, and our only 
safeguard against interminable ambiguity and confusion rests in a liberal in- 
terpretation and construction.” § 103. * * * “ It is extremely difficult 
at times, therefore, to determine who are, in point of competency, experts. 
As a general rule it may be said that any practising physician is competent 
to express an opinion as an expert, on a medical question. Livingston’s case, 
14 Gratt. 592. Nor is it even necessary that he should be a graduate of a 
medical college, or have a license from any medical board, in order to be a 
competent skilled witness (N. Orleans, etc., Co. v. Allbritton, 38 Miss. 242), 
except always where special statutes, as in Wisconsin (Laws of 1807, cli. 25, 
vid. supra), forbid such persons to be received as experts before courts. This 
is in fact admitting any one to testify as a medical expert, who chooses to say 
that he is one, an enlargement of the character of such testimony which 
leaves it practically without any limits. 
“We can hardly believe that any future court would reaffirm so unwise a 
decision. The universal, and as must be admitted the better, doctrine is, that, 
in order to render the opinion of a witness competent evidence, he must, in 
general, be in some way peculiarly qualified to speak on the subject, and 
have knowledge not possessed by the mass of persons of ordinary experience 
and intelligence. Harris ». Panama R. R. Co., 3 Bosw. (N. Y.) 7. 
“For, in matters of science, a person cannot be considered as an expert 
unless he has a particular knowledge of the science involved, and the opin- 
ions of professional men are evidence as to matters which relate to their 
profession, and on such subjects only. Allen v. Hunter, 6 McLean, 303 ; 
Fairchild v. Bascom, 35 Verm. 398 ; Brooks v. Jenkins, 3 McLean, 432. 
Still there neither is nor can there ever be any definite rule as to the special 
artistic or professional or scientific experience required in order to constitute 
an expert. Powers v. Dukes, 8 Minn. 23. 
“And, assuming experience to form an essential and indispensable element 
of qualification in an expert, men equally intelligent may yet differ so widely 
in the single measure of their experience, as to impart undue weight to the 
testimony of an old practitioner simply because he is old. 
“ It does not follow, always, that age increases experience, however much 
it may multiply the opportunities for adding to it, and courts have felt it in- 
cumbent upon them to recognize this principle in the law of mental acqui- 
sition, and to discriminate in the case of experts between general and special 
(2) McAllister v. State, 17 Ala. 434; Delafield v. Parish, 25 1ST. Y. 9; 
Baxter v. Abbett, 7 Gray, 71; Com. v. Rogers, 7 Met. 500 ; Clark v. State, 12 
Ohio, 483. 
283 § 288] 
[book i. 
EVIDENCE OF INSANITY. 
the uniform present practice in England.(a) It lias been said 
in Illinois, that, as a physician must necessarily in forming his 
experience. Upon questions of skill or science, men who have made tlie sub- 
ject-matter of inquiry the object of their particular attention or study may 
give their opinions in evidence ; it being first shown that they are skilful or 
scientific, or at least that they have superior actual skill or scientific know- 
ledge. Mere opportunity for observation is not sufficient. Page v. Parker, 
40 N. H. 47. 
“Hence a physician, although confessedly possessing the ordinary expe- 
rience of his profession, may, quoad some particular problems in medical 
science, not be an expert in the best and most critical sense of the term. 
And it is wrong to assume, in relation to any of the physical sciences, that, 
because a man has been a practitioner in it, he is equally competent and 
skilful in all its departments. Non omnes omnia possumus must ever be borne 
in mind, and most generally, to attain eminence in any science, is to limit 
one’s self to some one particular branch of it. Medicine is no exception to this 
rule ; and it has been held, in recognition of this great principle of limited 
attainments on the part of its practitioners, that a physician •who has been in 
practice for several years, but who has had no experience as to the effects 
of illuminating gas upon the health when breathed, cannot be allowed to 
testify in relation thereto as an expert. And experience in attending upon 
other persons, who, it is alleged, were made sick by breathing gas from the 
same leak, is insufficient for this purpose. Emerson v. Lowell Gas Light Co., 
6 Allen, 146. 
“In any event, the law may be considered as simply requiring that the 
party offered as an expert shall, in the whole view of the case, present evi- 
dence of having had the best opportunities for perfecting his knowledge in 
that particular subject on which his opinion is desired. Beyond this, and as 
between varying degrees of competency among experts, no other test of 
qualification can be applied, for no other is, in fact, possible ; and, since errors 
in judgment may occur here, as well as in any other department of human 
investigation, there are no means of knowing absolutely whether the witness 
is qualified to deal, or not, with all the problems which the complexities of 
any given case may present to him. Once received as an expert, the maxim 
cuilibet in sua arte perito credendum est must be applied, nor can the conclu- 
sion of such a witness be contradicted by any unskilled person. What consti- 
tutes an expert, therefore, is a matter depending exclusively upon special and 
not upon general experience. 
“Yet in correlated departments of science, as in medicine, for example, 
the special skill of the expert may so overlap a co-ordinate branch, as to 
authorize him to speak ex cathedra upon it.” § 109. 
“These conflicting opinions by the same court show plainly enough how 
indefinite has been the standard adopted in discriminating between physicians 
(a) R. v. Searle, 1 Mood. & Rob. 75; R. v. Offord, 5 C. & P. 1G8. See 7 
Bost. Law Rep. 692. 
284 BOOK I.] 
EXAMINATION OF EXPERTS. 
[§ 284 
opinion be to some extent guided by what the sick person 
may have told him in detailing his pains and sufferings, not 
only the opinion of the expert, founded in part upon such data, 
is receivable in evidence, but that he may state what the 
patient said, in describing his bodily condition, if said under 
circumstances which free it from all suspicion of being spoken 
with reference to future litigation, and give it the character of 
res gestce.{b) 
§ 284. On the other hand, in Massachusetts, on an action 
as ordinary and physicians as skilled witnesses. Some judges have adopted 
the fallacy, at the start, of considering all physicians as competent to express 
an opinion in issues of insanity, from the assumption of its recognized asso- 
ciation with medical topics. This is undoubtedly true in the abstract, and 
yet it is hut partially true in relation to its forming a necessary part of the 
professional experience of all physicians, since the majority, as a class, have 
no practical acquaintance with it. 
“Again, had courts always adhered strictly to the universally accepted 
definition of the term expert, as limiting it to one instructed in any science by 
experience, there would have been no opportunity to misinterpret the char- 
acter of any witness. 
“ Each court appears to have confounded the witness’s ordinary professional 
experience with his special skill as an expert, at times enlarging and then 
again restricting the sphere of his testimony. Ramadge v. Ryan, 9 Bingh. 
333. 
“Thus, in a trial involving the question of insanity of a person, it was held 
that a medical witness who has heard the testimony may give his opinion as 
to such person’s sanity or insanity as indicated by any given state of facts, so 
long as such facts are warranted by the evidence, and are not conflicting. 
Fairchild v. Bascom, 35 Yt. 398. But, in a similar case in New York, the 
court ruled that, even where the medical witness has heard all the testimony, 
his opinion founded thereon upon the general question of sanity or insanity 
is not competent evidence. People v. Lake, 2 Kernan (N. Y.) 358. 
“This latter ruling would commend itself to our reason for denying to the 
expert the right of deciding the issue, were it not practically negatived by 
allowing him that right in another part of the judgment, in the course of 
which it was said, that, where a physician conversant with the disease of 
insanity has had sufficient previous opportunity by his own observation to 
become acquainted with the personal habits, conduct, and appearance of the 
person, he may be asked the general question, and give his opinion as to 
the sanity or insanity of the prisoner. Under this concession of a judicial 
character to the expert, we may truly say with Baldus that his testimony 
-would be magis judicium quam testimonium.” Ordronaux, Jurisprudence of 
Med. § 132. 
(5) 111. Cent. R. R. v. Sutton, 42 111. 438. 
285 § 286] 
EVIDENCE OF INSANITY. 
[book i. 
for personal injuries, a surgeon who had attended and pre- 
scribed for the plaintiff once three months after the accident, 
and again before the suit was brought, was held competent to 
testify as to the plaintiff’s condition, and the permanency of 
the injuries, from what he saw, but not from anything the patient 
told him. lie may on cross-examination be asked, if it is not 
a fact in his experience, that injuries may and do exist where 
there are no outward manifestations of them.(c) So in Ver- 
mont, on an issue as to the testamentary capacity of Josh. 
Wetherbee when he executed the will in question, April 8th, 
1861, it appeared that in February, 1861, Dr. Thayer, a phy- 
sician and expert, visited the deceased professionally (in 
company with Dr. Cram, since deceased, and who was the 
regular attending physician), and found him at that time 
diseased in body and mind, and mentally incapable of trans- 
acting business understandingly. This opinion was based partly 
on his own examination upon that occasion, but mainly upon 
what Dr. Cram, the testator’s regular physician, told the wit- 
ness of the testator’s previous symptoms and condition. It 
was held that Dr. Thayer’s testimony of his opinion was inad- 
missible, as it did not appear that Dr. T. could or did form 
any opinion of the disease upon his examination alone.(tf) 
§ 285. On a trial for murder a medical witness testified that 
he saw defendant on the evening of the day after the kill- 
ing, conversed with him, and then thought him deranged ; 
that he thought the insanity was delirium tremens; that he 
knew defendant’s habits of drinking, and supposed drink- 
ing to be the cause of his insanity; that he had been present 
and heard all the evidence. The witness then stated, under 
objection, how long he thought defendant had been in this 
state of delirium, but was not allowed to state whether, in his 
opinion, he was in this state on the night of the alleged kill- 
ing. It was held that this was no error.(e) 
§ 286. “It has been said,” remarks Mr. Starkie, “that a wit- 
(c) Rowell v. City of Lowell, 11 Gray, 420. 
(d) Wetherbee v. Wetherbee, 38 Vermont, 454. 
(e) People v. McCaun, 3 Parker C. R. (N. Y.) 272 
286 BOOK I.] 
EXAMINATION OF EXPERTS. 
[§ 287 
ness must not be examined in chief as to his belief or persua- 
sion, but only as to his knowledge of the fact, since judgment 
must be given secundum allegata et probata ; and a man cannot 
be indicted for perjury who falsely swears as to his persuasion 
or belief. As far as regards mere belief or persuasion which 
does not rest upon a sufficient and legal foundation, this posi- 
tion is correct, as where a man believes a fact to be true merely 
because he has heard it said to be so ; hut, with respect to persua- 
sion or belief as founded on facts within the actual knowledge 
of the witness, the position is not true. On questions of iden- 
tity of persons and of handwriting, it is every day’s practice 
for witnesses to swear that they believe the person to be the 
same, or the handwriting to he that of a particular individual, 
although they will not swear positively; and the degree of 
credit to be attached to the evidence is a question for the jury. 
With regard to the second objection, it has been decided that 
a man who falsely swears that he thinks or believes may be 
indicted for perjury.”(/) 
(64) As to particular facts as proved on a Mai. 
§ 287. In England, experts cannot be asked, after being 
present at the whole trial, whether the defendant was insane; 
because this puts the witness in the place of the jury.(y) On 
a recent English trial for murder before Alderson, J., evidence 
was called on the prisoner’s behalf to prove his insanity. A 
physician who had been in court during the whole trial was 
then called on the part of the prosecution, and asked whether, 
having heard the whole evidence, he was of opinion that the 
prisoner, at the time he committed the alleged act, was of un- 
sound mind. It was held, notwithstanding the opinion of the 
judges in Reg. v. Macnaghten, that such a question ought not 
to be put, but that the proper mode of examination was to 
take particular facts, and, assuming them to be true, to ask 
the witness whether, in his judgment, they were indicative of 
(/) 1 Stark. Ey. 153. 
(g) R. v. Higginson, 1 Car. & K. 129. See Woodbury v. Obear, 7 Gray, 
467; People v. McCaun, 3 Parker C. R. 272. 
287 § 290] 
EVIDENCE OF INSANITY. 
.[book i. 
insanity on the part of the prisoner at the time the alleged act 
was committed.(A) 
(C) On a hypothetical case. 
§ 288. As has been just seen, it is admissible to interrogate 
experts as to their opinion of a party’s sanity on a hypotheti- 
cal case ;(i‘) or as to certain designated facts existing in the case, 
supposing them to he true.(J) 
§ 289. Where facts are disputed, then they do not form the 
proper basis for the opinion of experts. Thus in Missouri, 
while it is conceded that medical experts may give their opin- 
ions in all cases where the facts are not disputed, it is held 
that, the facts being disputed, they can only testify on hypo- 
thetical facts.(k) So in Alabama, it has been ruled that a 
physician may be asked to give his opinion on a hypothetical 
state of facts, as to the condition of a person whom he had 
never seen; but he cannot be asked his opinion, “ whether, from 
the condition of ‘ a slave,’ as described by the witnesses ‘ M. and 
L.’ whose testimony is conflicting,” the attention of a physician 
was necessary. (7) 
§ 290. In England, in answer to an inquiry of the House of 
Lords, whether “ a medical man, conversant with the disease 
of insanity, who never saw the prisoner previously to the trial, 
but who was present during the whole trial and the examina- 
tion of all the witnesses, can be asked his opinion as to the 
state of the prisoner’s mind at the time of the commission of 
the alleged crime, or his opinion whether the prisoner was 
conscious at the time of doing the act that he was acting con- 
trary to law, or whether he was laboring under any and what 
delusion at the time,” the English judges replied: “ We think 
(7i) R. v. Frances, 4 Cox C. C. 57. See also R. v. Richards, 1 F. & F. 87. 
(0 Negro Jerry v. Townsliend, 9 Md. 145; State v. Windsor, 5 Harring. 
512; Fairchild v. Bascomh, 35 Yt. 398; U. S. v. McGlue, 1 Curtis, 1. 
O’) McAllister v. State, 17 Ala. 434 ; Com. v. Rogers, 7 Met. 500 ; U. S. v. 
McGlue, 1 Curtis C. C. 1 ; Wetherbee v. Wetlierbee, 38 Vt. 454. See Fair- 
child v. Bascomh, 35 Yt. 398 ; People v. Lake, 2 Kernan, 358 ; State v. Wind- 
sor, 5 Harrington, 512 ; State v. Klingler, 46 Mo. 224. 
(k) State v. Klingler, 46 Mo. 224. 
(0 Wilkinson v. Mosely, 30 Ala. 562. 
288 BOOK I.] 
TESTIMONY OF EXPERTS. 
[§ 291 
the medical man, under the circumstances supposed, cannot in 
strictness be asked his opinion in the terms above stated, be- 
cause each- of those questions involves the determination of 
the truth of the facts deposed to, which it is for the jury to 
decide, and the questions are not mere questions upon a matter 
of science, in which case such evidence is admissible. But, 
when the facts are admitted, or not disputed, and the question 
becomes substantially one of science only, it may be convenient 
to allow the question to be put in that general form, though 
the same cannot be insisted on as a matter of right.”(?7i) 
§ 291. In Massachusetts, the law is thus stated in a well- 
known opinion of Chief Justice Shaw: “The opinions of pro- 
fessional men on a question of this description are competent 
evidence, and in many cases are entitled to great consideration 
and respect. The rule of law, on which this proof of the 
opinion of witnesses, who know nothing of the actual facts of 
the case, is founded, is not peculiar to medical testimony, but 
is, as a general rule, applicable to all cases, where the question 
is one depending on skill and science in any particular depart- 
ment. In general, it is the opinion of the jury which is to 
govern, and this is to be formed upon the proof of facts laid 
before them. But some questions lie beyond the scope of the 
observation and experience of men in general, but are quite 
within the observation and experience of those whose peculiar 
pursuits and profession have brought that class of facts fre- 
quently 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 facts. 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 them- 
selves or testified to by other witnesses. A familiar instance 
(to) See R. v. Wright, R. & R. 451; R. v. Frances, 4 Cox C. C. 51. 
YOL. I.—19 
289 290 
INSANITY. 
[book i. 
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. Such question is com- 
monly asked without objection; and the judicial proof of the 
fact of killing often depends wholly or mainly upon such test- 
ing of opinion. It is upon this ground that the opinion 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 particu- 
lar patient, and observe the symptoms and indications of dis- 
ease at the time of its supposed existence. It is designed to 
aid the judgment of the jury in regard to the influence and 
effect of certain facts which lie out of the observation and ex- 
perience of persons in general. And such opinions, when they 
come from persons of great experience, and in whose correct- 
ness and sobriety of judgment just confidence can be had, are 
of great weight, and deserve the respectful consideration of a 
jury. But the opinion of a medical man of small experience, 
or of one who has crude and visionary notions, or who has 
some favorite theory to support, is entitled to very little con- 
sideration. The value of such testimony will depend mainly 
upon the experience, fidelity, and impartiality of the witness 
who gives it. 
“ One caution in regard to this point it is proper to give. 
Even where the medical or other professional witnesses have 
attended the whole trial, and heard the testimony of the other 
witnesses as to the facts and circumstances of the case, they 
are not to judge of the credit of the witnesses, or of the truth 
of the facts testified to by others. It is for the jury to decide 
whether such facts are satisfactorily proved. And the proper 
question to be put to the professional witnesses is this: If the 
symptoms and indications testified to by the 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 character of that insanity ; what state of mind 
290 BOOK I.] 
[§ 292 
TESTIMONY OF EXPERTS. 
did they indicate; and what they would expect would be the 
conduct of such a person in any supposed circumstances.”(n) 
“You may,” said Chief Justice Chapman, in Andrews’s 
case (1868), “put a hypothetical case, and ask whether it 
shows insanity, or, if the witness has heard all the testimony, 
whether the facts in his opinion indicate insanity. The wit- 
ness, however, must not discriminate upon the facts, but 
assuming all the testimony to be true, he may state whether 
or no they indicate insanity.”(o) 
(J4) Conclusions of laiu. 
§ 292. As to these, experts are not to be questioned, as they 
belong solely to the court. Thus it has been expressly ruled 
in England, that a medical witness should give his opinion as 
to the state of mind, not as to the responsibility of the prisoner; 
the latter is for the jury under the direction of the judge.(p) 
So* in Vermont, it is not proper to inquire of a medical 
expert, whether the person in question possessed sufficient 
mental capacity to transact business or to make a will, because 
what is sufficient capacity to transact business or to make a 
will, is a matter of law depending somewhat on the nature of 
the business. And a witness may not correctly apprehend the 
rule of law, and if he uses such expressions may be misled 
himself, or may mislead the jury.(g) 
So where, in Missouri, in a murder trial, the counsel for the 
defendant put to a medical expert the following question:— 
“When the defendant has been undeniably subject to fits of 
epilepsy, should he not have the benefit of every reasonable 
doubt that might arise as to his sanity ?” It was ruled that 
the question was properly ruled out.(r) 
(n) Com. v. Rodgers, 7 Mete. 5. See Elwell’s Malpractice and Medical 
Evidence, p. 310. 
(o) Com. v. Andrews, Pamph. 182; Com. v. Wilson, 1 Gray, 338; Fair- 
cliild v. Blascomb, 33 Vt. 398. 
(p) R. v. Richards, 1 F. & F. 87. 
(<?) Fairfield v. Blascomb, 35 Yt. 398 ; infra, § 299. 
O) State v. Klinger, 46 Mo. 224. See infra, % 299. 
The following summary, from a medical stand-point, is taken from an 
article by Dr. J. J. O’Dea, in the Journal of Psychological Medicine for July, 
291 292 
INSANITY. 
[book i. 
(e3) Weight to he attached to their testimony. 
§ 293. It has been already frequently stated that the opinion 
of experts, supposing that such opinion can he accurately and 
1871: * * * “ The fact, then, that medical testimony chiefly consists of 
reasoned opinions on statements made in evidence, and the necessity of 
limiting the expression of opinion within definite bounds, have led to the 
institution of certain rules by which it is to be guided. The majority of these 
rules are scattered throughout an almost endless succession of law reports, 
and are nearly inaccessible to all but students at law. I will just mention 
a few, at the same time directing those, who wish to see references to some 
of the latest, to the appendix of Dr. Elwell’s ork on malpractice and 
medical evidence. 
“A medical witness is not allowed to express an opinion on facts requiring 
no special knowledge for their comprehension. 
“ He is not allowed to base an opinion on the opinion of another expert. 
“His opinion should be formed on a personal examination, not on the report 
of another physician. At first sight it may seem inconsistent that he should 
be asked an opinion on facts reported by common witnesses, but debarred 
from giving one if based on the statements of qualified men. But the 
discrimination is due, no doubt, to the statement of the common witness 
being rendered under oath. 
“ It has been ruled—and this corroborates what I have lately said regarding 
the importance of putting in practice a certain classification of medical testi- 
mony—that a medical witness is not competent to deliver an opinion on 
insanity unless he has had experience in the treatment of this disease. The 
wisdom of this decision will be obvious to all who appreciate the many and 
great difficulties which beset the diagnosis of some forms of insanity. 
‘“A medical witness may, when the issue is sanity or insanity, be asked 
whether such and such appearances, proved by other witnesses, are, in his 
judgment, symptoms of insanity; but he cannot be asked if the act with 
which the defendant is charged is an insane act; for this is a fact to be 
decided by the jury.’ 
“ The expert must be confined in the expression of opinion to the subject on 
which he has special knowledge. 
“ ‘ But a far wider field for ceaseless, may we not also say for causeless, dif- 
ference,’ says Professor Ordronaux, ‘ specious cavilling, and useless wrangling, 
presents itself to us in the loose, illogical, and ambiguous form in which ques- 
tions are often put to experts. ’ 
“Just in proportion as the direct examination is lucid and forcible, and the 
expert seems establishing the case for the party calling him, will the cross- 
examination be likely to be confusing and vexatious to him. By a negative 
application of any universal law, particular instances under it may frequently 
be made to contradict each other according to the dialectical method of the 
sophists, so that any expert, if otf his guard, or less skilful in intellectual 
fencing than counsel, may be made to contradict himself by a method ‘ of 
asking questions adroitly, chosen for their logical relations to the doctrines in 
292 BOOK I.] 
TESTIMONY OP EXPERTS. 
[§ 293 
fully secured, is accepted by the law as a part of the settled 
facts from which its conclusions are drawn. Eminently is this 
the case with the opinions of experts in psychological science. 
The high value assigned by Chief Justice Shaw to such tes- 
timony, when viewed in the abstract, has been just noticed. 
Another illustration may be cited from the language of a very 
able and comprehensive jurist, Chief Justice Gibson, who 
speaks with just emphasis of the deference due, in their own 
department, to “the knowledge obtained by men of a subject 
with which they have grappled all-their lives.”(s) 
dispute, and making the answers obtained tlie premises from which 
sions are deduced at variance with the doctrines of your antagonist, and yet 
consonant with his admissions in the answers to your questions.’ \ 
“And, although cross-examination be one of the greatest accomplishments in 
a lawyer, and all essay to practise it with fervor, few men, without systematic 
logical training, perceive that they as often stultify themselves in the form 
of propounding questions, as the expert may in his answers to them. 
“The instance taken from the Freeman case, above cited, forcibly illustrates 
this. 
“It does not follow, because a man is authorized to ask questions, that lie is 
necessarily wiser than the one who is required to answer them. An exami- 
nation may be as much for the personal information of the questioner, as to 
test the knowledge of the party questioned. 
“Indeed, the logical inference would be as much against such a presumption 
as in favor of it. And following it to its natural sequence, a case involving 
expert testimony is certainly one in which the former inference would obtain. 
“Hence, by protracting the cross-examination of an expert, and reducing it 
to a simple exhibition of logomachy, there is .as-much danger, and even 
more, that the lawyer, however skilful a trial-engineer he may be, will be 
‘hoist by his own petard,’ as that the expert will contradict or stultify 
himself, provided he avoid the temptations to branch off, so sedulously 
offered him, and instead confine himself strictly to the subject-matter which 
forms the thread of his examination.”—Ordronaux, Jur. of Med., Pliilada., 
1869, § 138. 
(s) The following are extracts from an article already cited by Dr. J. J. 
O’Dea, in the Journal of Psychological Medicine for July, 1871. 
“ The expert testimony of medical men is the most important of all, for it 
requires a most minute, varied, and extended knowledge ; it frequently relates 
to subjects of an intricate and recondite character; it is applied to the settle- 
ment of questions affecting the three great interests which men most love, 
namely, life, reputation, and property. 
“ Two examples will illustrate its great value. The first is an instance of 
a crime discovered, and of the criminals punished, by the instrumentality of 
medical science, after all ordinary means had completely failed. 
“ In the year 1821, a woman disappeared mysteriously from the city of 
293 § 294] 
INSANITY. 
[book i. 
§ 294. Yet, when we come to subject, in cases of insanity, 
the testimony of experts to the tests of a jury trial, we find 
this opinion either greatly abated, or changed into doubt or 
distrust. Thus Chief Justice Chapman, of Massachusetts, on 
the trial of Andrews, in 1868,(t) said, “ I think the opinions 
of experts are not so highly regarded now as they formerly 
were, for, while they often afford great aid in determining facts, 
it often happens that experts can be found to testify to any 
theory, however absurd.” And Judge Davis, of the Supreme 
Court of Maine,(u) went so far as to say, “ If there is any kind 
of testimony that is not only of no value, but even worse than 
that, it is, in my judgment, that of medical experts. They may 
be able to state the diagnosis of a disease more learnedly; but 
upon the question, whether it had, at a given time, reached such 
a stage that the subject of it was incapable of making a con- 
tract, or irresponsible for his acts, the opinion of his neighbors, 
if men of good common sense, would be worth more than that 
of all the experts in the country.” And Judge Redfield, on 
commenting on this case, says, that there seems to be “ but one 
Paris. A suspicion tliat she was murdered led to the arrest of several sus- 
pected persons, who, however, were soon liberated, owing to want of proof 
of their guilt. After eleven years the remains of an unknown corpse were 
exhumed in one of the city gardens. They were examined by Orfila, Che- 
vallier, and other famous experts, with the result of identifying them with 
the published description of the murdered woman, and the re-arrest and con- 
viction of the previously discharged criminals. 
“ The second illustrates how an innocent man was, perhaps, saved from an 
ignominious death, at least freed from a crushing imputation, by the inter- 
vention of the same species of testimony. 
“ Thomas Bowman was accused of murdering an illegitimate child by pierc- 
ing its head with an awl. The skull was produced in the coroner’s court, the 
hole was plainly visible by all the jury. There was no doubt about the case, 
and the accused was held to stand his trial for wilful murder. 
“ The grand jury sitting in Exeter, England, examined the facts, and were 
about to bring in a true bill, when Mr. Seldon, a noted surgeon of the neigh- 
borhood, heard what was going on. Suspecting some great mistake, he ap- 
peared before the jury and asked to see the skull. Perceiving at a glance 
that the hole was only a natural opening for the transit of a vein, he lost no 
time in so demonstrating it to the satisfaction of the jury, who, thereupon, 
procured the honorable discharge of the accused.” 
(<) Pamph. R. p. 356. 
(u) Neal’s case, cited 1 Redfield on Wills, ch. III. § 13. 
294 BOOK I.] 
TESTIMONY OF EXPERTS. 
[§ 295 
opinion as to the fact that this kind of testimony is extremely 
unsatisfactory. * * * We are more and more confirmed in an 
opinion that the difficulty comes largely from the manner in 
which the witnesses are selected. * * * If the State, or the 
courts, do not esteem the matter of sufficient importance to 
justify the appointment of public officers, * * * it is certain 
the parties must employ their own agents to do it; and it is 
perhaps almost equally certain, that if it be done in this mode 
it will produce two trained bands of witnesses, in battle array 
against each other, since neither party is bound to produce, or 
will be likely to produce, those of their witnesses who will not 
confirm their views.” 
So also an eminent federal judge, Judge Woodruff, said 
to a jury in 1871, that, “ where the opinion (of experts) is 
speculative, theoretical, and states only the belief of the witness, 
while yet some other opinion is consistent with the facts 
stated, it is entitled to. but little weight in the minds of the 
jury. Testimony of experts of this latter description, and 
especially where the speculative and theoretical character of 
the testimony is illustrated by opinions of experts on both 
sides of the question, is justly the subject of remark, and has 
been often condemned by judges as of slight value. And like 
observations apply to a greater or less degree to the opinion of 
witnesses who are employed for a purpose and paid for their 
services; who are brought to testify as witnesses for their em- 
ployers. * * * This condemnation is not always applicable; 
often it would be unjust. Where an expert of integrity and 
skill states conclusions which are the necessary or even the 
usual results of the facts upon which his opinion is based, 
the evidence should not be lightly esteemed or hastily dis- 
credited.”^) 
§ 295. Or, to put the point in other language: There is no 
theory so absurd but that it has found some philosopher by 
whom it is maintained. “ISTihil tarn absurde dici potest, quod 
non dicatur ab aliquo philosophorum.”^1) Hence there is no 
theory so absurd but that, on a trial, some unique philosopher 
(») Woodruff, J., Gay v. Mut. Ins. Co., 2 Bigelow’s Life Ins. Cas. 14. 
(a1) Cicero, De Divinatione, ii. 58. 
295 § 296] 
INSANITY. 
[book i. 
may not be secured to testify that he believes it. Of this we 
have had a number of illustrations in the preceding pages.(w;) 
Experts have been found to testify that no sane person com- 
mits suicide, and that all suicides are insane ; that all men are 
more or less insane; that certain propensities or faculties can 
become insane by themselves, and when insane are irresistible; 
that very bad people, and especially old convicts, are, as a rule, 
insane; and that certain signs, which signs the great body of 
the profession regarded as indifferent, are sure marks that 
insanity has set in. There is, in fact, no psychological defence, 
no matter how whimsical, that has not been based on the specu- 
lations of isolated experts, and that has not found some isolated 
experts to swear to it on trial. 
§ 296. That the sober practical thought of the great body of 
alienists rejects these extravagancies cannot be questioned; but 
how are the views of this great body to be ascertained? Of 
course it is easy for a party to summon the single expert who 
may happen to have propounded the bizarre theory which is 
necessary to sustain such party’s case. But how is such expert 
to be contradicted? How is it to be shown that the whole 
sense of his profession is against him, and that he is himself 
laboring under one of those delusions to which, as has been seen, 
men of science are as liable as are men of other professions or 
modes of training? It is impossible to summon the whole 
profession to prove this. It is inadmissible for one to testify 
as to the opinions of others. There is no Supreme Court 
among experts by which conflicting views can be reconciled 
and an authoritative judgment pronounced. There is no 
power by which the testifying expert, who assumes a semi- 
judicial post, can be made to accept judicial responsibilities ; 
can be made to hear counsel to instruct him on both sides of 
each contested point of psychology ; can be made to feel that 
he is bound to testify to the views of his whole profession. 
Hence, when the trial comes on, the expert who is selected 
because he holds views which the great body of his profession 
rejects, testifies often alone, or with but slight and inadequate 
correction.^1) From this have arisen those outrages on public 
(w) See supra, §§ 190-195. 
(wl) See supra, §§ 190-195. 
296 BOOK I.] 
TESTIMONY OF EXPERTS. 
[§ 296 
justice which eminent medical authorities have been among 
the first to Hence it is that high medical authority 
has called for the abandonment of the present system of “ vol- 
untary” experts, and the establishment of a government hoard, 
as is the case in Germany.(y) Hence, also, after one eon- 
(x) See Lettsomian Lectures on Insanity, by Forbes Winslow, M.D., D.C.L., 
late President of the Medical Society of London, etc. London: John Churchill, 
New Burlington Street. Medical Testimony and Evidence in Cases of Lunacy, 
being the Croonian Lectures delivered before the Royal College of Physicians 
in 1853, with an essay on the conditions of mental soundness, by Thomas 
Mayo, M.D.,F.R.S. London: John W. Parker & Son, West Strand, 1854. 
Marc, Die Geisteskranklieiten, in Beziehung auf die Reclitspflege, i. p. 8. 
And see also particularly Mittermaier’s very interesting essay, “ Die Stellung 
und Wirksamkeit der Sachverstandigen in Strafverfahren” in “Archiv fur 
Preussisches Strafrecht,” Berlin, 1853. See also Regnault’s elaborate disqui- 
sition, “ Du degre de competence des Medecins dans les questions judicaires 
relatives aux alienations mentales,” etc., Paris, 1828. 
(.y) Dr. Reese, Professor of Medical Jurisprudence and Toxicology in the 
University of Pennsylvania, in an article in the American Journal of the 
Medical Sciences for April, 1872, animadverts with great justice “on the im- 
propriety of conducting a post-mortem examination, when there is a suspicion 
of death by poison, and where the reputation and even the life of a fellow 
being is involved, without the presence and oversight of the legally consti- 
tuted authority—the coroner. It must be evident,” he continues, “ to every 
observer, that the whole examination, in the present case (that of Mrs. E. G. 
Wharton) was in the hands of those Avho were not entirely devoid of preju- 
dice. The first autopsy is made by Drs. Williams, Miles, and Chew, within 
twenty hours after death—the strong suspicion of poison influencing the 
minds of these gentlemen. Two weeks later, the body is exhumed and 
again examined, exclusively by these same persons. There is no represen- 
tative or friend of the accused party invited to be present. Surely, this was 
not in accordance with justice or propriety. Were it not that the professional 
and social character of the parties concerned places them above suspicion, 
there might certainly be very grave reason for taking exception to such ex 
parte proceedings; for there might be just cause for doubt in regard to the 
absolute identity of the material operated upon. But still more glaring was 
the departure from propriety, when the body was the second time disinterred, 
and that, too, during the actual progress of the trial. * * * Certainly, 
none of the counsel for the defence was aware of it, until Dr. Williams one 
morning (during the trial) gave the unexpected detail to the court, and in- 
formed them that the new chemist, to whom the analysis of the viscera had 
been committed, was now ready to give a partial exhibition of his results. 
“ Now it seems to us that this procedure on the part of the State was unfair 
to the accused, to her counsel, and to the cause of justice. We deem it con- 
trary to all precedents in criminal jurisprudence, to take such an unfair ad- 
vantage of the accused. Why was not her counsel informed of this intention 
297 § 296a] 
EVIDENCE OF INSANITY. 
[book i. 
spicuous instance of failure of justice from this cause—that in 
the case of Mr. Windham, in 1866—the feeling was so strong 
of the mischief done by crowding cases with incompetent or 
extravagant experts to the exclusion of the sober and authori- 
tative, that the Lord Chancellor proposed in the House of Lords, 
though without pressing the proposition to a vote, to exclude 
such testimony altogether in commissions of lunacy, except so 
far as it is based on facts within the personal knowledge of the 
witness. 
§ 296a. Three remarkable trials, -which took place in the 
United States in 1872, exhibit in striking climax the capri- 
ciousness and unauthoritativeness of expert testimony as thus 
collected. Mrs. E. G. Wharton was tried in Maryland for the 
poisoning of General Ketchum; and the experts called by the 
State to prove poison were flatly contradicted by experts, of at 
least equal authority, called by the defence, who swore that 
neither in symptom nor in autopsy was poison shown. A 
few months later occurred the trial of Stokes for the murder 
of Fisk, in which experts, equal, at least in respect to number, 
contradicted each other directly on the question whether Fisk 
was killed by Stokes, or by the surgeons who endeavored to 
extract Stokes’s balls. And in September, 1872, as if to exhibit 
this capriciousness in the strongest possible relief, followed in 
Pennsylvania the second trial of Dr. Schceppe. He was con- 
victed, on the former trial, on the testimony of a single expert, 
of murder by poison; and it was not till after a delay of more 
than two years, and then only by legislative action, that a 
new trial was obtained. Then was it discovered that there 
was nothing in the prosecution’s case. The expert on which 
it relied, though respectable and conscientious, had been guided 
by tests which recent science has shown to be worthless. The 
court ordered an acquittal, on the ground that there was not 
even a prima facie case of the corpus delicti. Put a cruel wrong 
of the prosecution, so that at least one of the experts for the defence might have 
been present at the exhumation of the body and the subsequent analysis, and 
thus give at least the appearance of fairness to the procedure ? We venture to 
assert, without fear of contradiction, that such an ex parte proceeding would 
never permitted in any country in Europe ; and will never again 
be allowed, it is hoped, in our own country.” 
298 BOOK I.] 
DUTIES OF EXPERTS. 
r§ 298 
had been done to the accused by the first trial, as well as a great 
scandal to public justice. It is said that Dr. Aiken, the expert 
who was called for the prosecution, is responsible for this. 
But his responsibility is largely shared by the jurisprudence 
which assigns semi-judicial authority to mere fanciful volun- 
teers, and by the legislature which declines to establish a 
governmental board. 
(d3) Duties of experts. 
[The psychological relations of experts are hereafter distinctively 
considered. Infra, § 328.] 
§ 297. Such being the legal position of experts, there are 
certain points which they should carefully consider before giv- 
ing testimony. 
{p}) They are not counsel, but semi-judicial assessors. 
§ 298. In many parts of Germany the practice obtains of 
requiring the medical faculty of each judicial district to ap- 
point a special committee to whom questions of this character 
are referred. This committee is examined directly by the 
court, and gives testimony somewhat in the same way, and 
with the same- effect, as would a common law court when 
reporting its judgment in a feigned issue from chancery, or as 
would assessors called upon under the canon law to-state, in pro- 
ceedings under that law, what is the secular law of the land on 
the pending question. In the United States, as in England, 
the practice has grown up, as has been seen, of permitting 
each party to call such experts as he may think most likely to 
further his views. This practice necessarily produces collision 
of opinion, which greatly embarrasses court and jury, and has, 
as has been stated, more than any other cause, tended to 
weaken what should be in such cases the due influence of medi- 
cal science. Take, as an illustration, the question of the exist- 
ence of “ moral insanity” as a distinct and substantive defence, 
supposed to exist independently of any lesion of the mind. 
The existence of such a phase of insanity is affirmed, as is 
seen, by one school of experts, and is denied by another school. 
The defendant calls, in a case where the defence of moral 
insanity is set up, experts of the first school. The prosecutor, 
299 § 299] 
EVIDENCE OF INSANITY. 
[book i. 
in reply, calls experts of the second school. The two classes of 
experts flatly contradict each other as to the very possibility 
of the existence of such a defence. The judge, under such cir- 
cumstances, puts the whole testimony aside, as relating to a 
question as to which medical science has no distinct rendition. 
The jury either follow the court, or are governed by some side 
issue. Of course, under our existing system, the conflict, as 
such, cannot be avoided. But it would be greatly lessened if 
the prosecution, when its proceedings are penal and conducted 
by the State, should, when the plea of insanity is interposed, 
call eminent and experienced psychological physicians, not as 
representatives of particular schools, but as assessors, to state 
what, in the pending issue, is the general view of medical sci- 
ence as applied to the defendant’s case. In those States where 
the plea of insanity has to be determined as a distinct prelimi- 
nary issue, this can be readily done at the outset. When, how- 
ever, the practice is to permit the defendant to introduce 
insanity under the general plea of not guilty, then the prose- 
cution may take this course in rebuttal. And in all cases, ex- 
perts, by whomsoever called, should recollect that they are re- 
quired, when asked as to the existence of any particular disease 
or symptom, to state not simply their own personal view, but 
the general sense of the profession to which they belong. 
(//) Their testimony should be not speculative. 
§ 299. It has already been stated that the opinions of ex- 
perts, on conclusions of law, are inadmissible ;(yx) and it has 
been further noticed that such opinions, when merely specula- 
tive, are regarded as of little judicial weight.(y2) In this view, 
high medical authority concurs. Thus, Dr. Liman, in his 
edition of Casper (Berlin, 1871), thus speaks: “The history 
of art(,z) is rich in individual eccentricities; and the heroes 
of art exhibit in the chronology of their works transitions in 
which it is hard to determine the point where the luxurious 
liberty of genius passed into fantastic eccentricity.” lie men- 
tions the case of Beethoven, whose latest works it puzzles the 
most enthusiastic disciple to reconcile with sane art; and the 
(y1) Supra, § 292. 
(y2) Supra, § 293. 
(g) P. 394. 
300 BOOK I.] 
DUTIES OF EXPERTS. 
[§ 300 
same observation applies to Turner, some of whose last paint- 
ings may be assigned, according to the stand-point of the critic, 
either to great gifts demoralized by insane self-will, or to the 
same great gifts supermoralized by genius in its last stage of 
transfiguration. To similar mental tendencies may be traced, 
according to Dr. Liman, a large part of the speculative aberra- 
tions of those who have theorized on the operations of the 
mind. jSTo theorist, for instance, was more pure or honest 
than Bishop Berkeley, yet Bishop Berkeley declared it to be 
indisputably proved that all object life is a dream. So we 
may rank the hypothesis of one class of psychological physi- 
cians that every body is more or less insane, and that of 
another, that all insane persons are responsible; and so, also, 
the various extravagant theories of monomania to be hereafter 
noticed. After all, it should never be forgotten that an ab- 
stract opinion as to insanity is of little value. Insanity, it is 
admitted on all sides, is incapable of definition; and to declare 
a person insane, therefore, is to attach to him a predicate which 
cannot be defined. So, also, it must be remembered that there 
are some admitted cases of insanity (e. g. “ partial” insanity, 
or collateral monomania) which destroy neither testamentary 
capacity nor criminal responsibility, when the act is not the 
product of the particular insane delusion. Hence the real 
issue is, not was the party insane, but what was his condition 
of mind as to a particular act. 
(c4) All the materials for diagnosis should he carefully secured. 
[See, as to this point, infra, §§ 343-399.] 
§ 300. Special and ex -parte interviews, it must be remem- 
bered, are very unsatisfactory and inadequate tests. Few 
persons with capacity enough to commit crime are wanting 
in capacity to feign insanity for short periods upon due notice 
given. Hence it is that experimental visits by experts to 
prisoners are so unsatisfactory; and hence, also, we may 
understand the slight influence on court and jury exercised in 
the trials of Watson and Edmunds, in January, 1872, by the 
testimony of eminent medical gentlemen that they had had 
one or two hours’ interviews with the prisoners, and that 
the latter did not seem to have been fully conscious of the 
301 § 302] 
[book i. 
INSANITY. 
nature and moral character of their offence.(a) It would be 
strange if intelligent prisoners, such as these were, advised by 
able counsel, should have been ignorant, that, if they should 
establish an unconsciousness on their part as to the moral 
nature of their offence, they would make out a legal defence; 
and it would be still stranger if a man whose life is at stake 
should not at once seize upon so simple a mode of escape. 
Prison interviews, in fact, are peculiarly imperfect tests; first, 
because there is there little possibility of observing the prisoner 
in unrestrained intercourse with others; and, secondly, because 
the observer cannot, as he could in an asylum or in places 
where his authority is supreme, exercise any such control over 
the attendants as will enable him to apply adequate tests. 
Hence it is that an expert should hesitate long before he 
expresses on oath an opinion based on such interviews.^1) 
§ 301. Kor is the danger of deception solely on one side. 
Sane men may skilfully feign lunacy, but sometimes lunatics 
have been equally skilful in feigning themselves to be sane. 
Cases have not been rare in which lunatics, while hugging 
as they would an idol their insane delusions to their secret 
heart, have baffled the most experienced examiners for hours. 
The lunatic who, in a well-known case, succeeded, by sane 
answers, in defying even Erskine’s consummate ability, would 
no doubt, had the humor seized him, been equally successful in 
preventing examining physicians from discovering his true 
state in a prison interview. 
§ 302. But eminently are caution and thorough acquaintance 
with the patient’s antecedents necessary when the question of 
motive is involved. Motivelessness, as will hereafter be seen,(a2) 
is often a prime characteristic of an insane act; and psycho- 
logical physicians have been accustomed, with great propriety, 
to give the ?notivelessness of an act as one of the chief reasons 
for the insanity of an actor. But -who, without thorough 
knowledge of the human heart, and without a specific and accu- 
rate acquaintance with the patient’s character and antecedents, 
(a) See supra, §§ 117-120. 
(a1) See, as to feigned insanity, infra, §§ 443-460. 
(a2) Infra, § 399. 
302 BOOK I.] 
TESTIMONY OF EXPERTS. 
[§ 302 
can declare any one of his acts motiveless? What may be a 
powerful motive to one person, may be no motive at all to 
another. Jealousy, for instance, is a motive of tremendous 
force, yet to detect jealousy on the one side, or to negative it 
on the other, requires a thorough knowledge of the party’s 
temper and antecedents. The same remark applies to acts 
done to ward off from self the consequences of some secret 
wrong. In the case of Christiana Edmunds, for instance, in 
which one of the chief points of the defence was the motiveless- 
ness of the act, there was reason to assume that she had 
indulged in an illicit attachment to her family physician; that 
she had been suspected of poisoning his wife with chocolate ; 
that to divert this suspicion she caused poison to be introduced 
into the chocolate-drops of a confectioner in the same town, 
which drops caused the death of a child; and that she endea- 
vored, by anonymous letters and other means, to produce the 
impression that the confectioner in question sold poisoned 
sweets. Here was a powerful, but at the same time subtle, 
motive; a motive the same in character as that which impelled 
Dr. Webster to throw suspicion by anonymous letters on inno- 
cent parties of agency in Dr. Parkman’s death; but a motive 
which, in Edmunds’s case, was so secret in its origin and so 
tortuous in its working, and which was so intensified on her 
part by jealousy and infatuated love, that it required a full 
knowledge of her life and history to lay it bare. Ho psycho- 
logical examiner, therefore, can justly pronounce on the motive- 
lessness of an act without such explanation. Yet it is here 
that is the very gist of the defence. If a homicide is delibe- 
rately committed under the influence of jealousy, or revenge, 
or a desire to screen self, it is in the eye of the law murder. 
Supposing that there are at the time no insane delusions; 
supposing that there is a knowledge that the act is wrong; 
then neither weakness of mind, nor infatuation of passion, 
constitutes a defence. 
The relation of experts to the law of the case has been 
already fully discussed.(a3) 
(a3) Supra, § 190-199. 
303 § 304] 
evidence; books of science. 
[book I. 
Hereafter will be distinctively considered the tests which 
experts are to apply.(a4) 
(d1) Scientific treatises. 
§ 303. According to Judge Redfield,(<z5) the reading before 
the jury of “general treatises upon scientific and professional 
subjects lias been allowed by many courts, either as part of 
the testimony, or of the argument of counsel. But when 
objected to, they have not generally been allowed to be read, 
either to court or jury.”(6) 
In England, medical witnesses may be asked how far their 
opinion is founded on books, and may refer to such books.(c) 
§ 304. Where this rule obtains, and where counsel, in their 
argument to the jury, read from medical books not in evidence, 
or proved to be authority upon the subject, it is the duty of 
the court to instruct the jury that such books were not evi- 
dence, but theories simply of medical men.(J) 
There is no question that, under all circumstances, books of 
science relating to the law of the issue may be read in argu- 
ment to the court. Such study by the court is in fact of great 
value to public justice. “I believe that those judges,” well 
said Chief Justice Ilornblower, when speaking judicially on 
this point, “ who carefully study the medical writers, and pay 
the most respectful attention to their scientific researches on 
the subject, will seldom if ever submit a case to a jury in such 
a way as to hazard the conviction of a wronged man.”(e) 
(a4) Infra, §§ 345-399. 
(a5) 1 Redfield on Wills, p. 145. 
(b) For this he cites Com. v. Wilson, 1 Gray, 337; Washburn ®. Cuddihy, 
8 Gray, 430; Ashworth v. Kittridge, 12 Cush. 193. Such books have been 
allowed to be read in Iowa and Wisconsin : Bowman v. Woods, 1 Iowa, 441; 
and Lunning v. State, 1 Chandler, Wis. 264. Contra, Carter v. State, 2 
Carter, G17; Gehrkes v. State, 13 Texas, 568 ; State v. O’Brien, 7 R. I. 336. 
(c) Cocks v. Purday, 2 Car. & K. 270; Collier ®. Simpson, 5 C. & P. 74. 
See McNagliten’s case, 10 Cl. & F. 200. 
(<d) Yoe v. People, State of Illinois, 49 111. 410. 
(e) 1 Zabriskie (N. J.), 196. 
304 BOOK I.] 
PSYCHOLOGICAL THEORIES. 
[§ 306 
CHAPTER II. 
MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
A. General theories. 
(a1) Preliminary observations. 
§ 305. The difficulties that have attended the classification 
of insanity have proceeded from two causes. The first is, the 
confusion of nomenclature, the same terms being used to de- 
scribe, according to the stand-point of the observer, very dis- 
tinct phenomena. The second is, the treatment of a symptom 
as if it were a distinct, substantive disease ; and the conse- 
quent resolution of the mind into a series of distinct, indepen- 
dent factors, one of which may be assumed to be insane, while 
the others remain sane. It is the latter tendency, in fact, that 
has, more than all other causes, tended to lower the authority 
of psychology with the courts. 
But the weight of present psychological opinion is to dis- 
card this process of disintegration, and to treat the mind as a 
unit, which, when diseased, however distinctively the disease 
may minifest itself, is diseased as a whole. This, in fact, 
is a necessary sequence of the view of the mind as an en- 
tirety which modern psychologists of all schools unite in 
maintaining. Assuming “ mind” and “ soul” to have in this 
view the same sense, and to represent the individual <?yo, we 
must view the various functions or factors—e. g. memory, 
perception, moral sense, will—not as so many distinct minds, 
but as parts or manifestations of one mind. 
§ 306. Sir William Ilamilton(a) thus reviews the literature 
of the topic as it existed at the time of the preparation of his 
lectures. “ The division of the phenomena of the mind into the 
three great classes of the cognitive faculties, the feelings or 
capacities of pleasure and pain, and the exertive or conative 
(a) Lectures on Metaphysics, Gould & Lincoln, p. 129. 
yol. i.—20 
305 306 
MENTAL UNSOUNDNESS. 
[book i. 
powers—I do not propose as original. It was first promul- 
gated by Kant; and the felicity of the distribution was so 
apparent, that it has been long all but universally adopted in 
Germany by the philosophers of every school; and, what is 
curious, the only philosopher of any eminence by whom it has 
been assailed—indeed, the only philosopher of any reputation 
by whom it has been, in that country rejected (Krug), is not an 
opponent of Kantian philosophy, but one of its most zealous 
champions. To the psychologists of this country it is apparently 
wholly unknown. They still adhere to the old scholastic divi- 
sion into powers of the understanding and powers of the will; 
or, as it is otherwise expressed, into intellectual and active 
powers.” It should be observed, however, that between the 
old English and Scotch psychologists and Kant, there is no 
difference, so far as concerns the question before us—the unity 
and entirety of the mind. They differ in the enumeration of 
the functions; they agree as to the unity of the substance. 
According to the older psychologists, the mind acts in two 
main ways. According to Kant and Hamilton, in three. But 
by neither are these functions severable from the mind. If 
either is diseased, the mind itself is diseased. If the mind is 
not diseased, its phenomena, either jointly or singly, are not 
diseased.(6) 
§ 307. Mr. Bain(c) adopts substantially the classification of 
Sir W. Hamilton and Kant. “ The only account of mind,” he 
says, “ strictly admissible in scientific psychology consists in 
specifying three 'properties or functions—feeling, will or voli- 
tion, and thought or intellect—through which all our experi- 
ence, as well objective as subjective, is built up. This positive 
enumeration is what must stand for a definition. ”(d) * * * 
“ Thought, intellect, intelligence, or cognition includes the 
powers known as perception, memory, conception, abstrac- 
tion, reason, judgment, and imagination. It is analyzed, as 
(&) Reid, indeed, makes four apparent groups, but lie is clear in stating 
tliat these are but the modes of action of the one mind. “ By the mind of a 
man,” he says, “we understand that in him which thinks, remembers, rea- 
sons, wills.” 
(c) Mental and Moral Science, London, 1868. 
(d) For this passage in full, see infra, § 533. 
306 BOOK I.] 
PSYCHOLOGICAL THEORIES. 
[§ 808 
will be seen, into three functions, called discrimination, or 
consciousness of difference, similarity or consciousness of 
agreement, and retentiveness or memory. The mind can 
seldom operate exclusively in any one of these three modes. 
A feeling is apt to he accompanied more or less hy will or 
thought. When we are pleased, our will is moved for con- 
tinuance or increase of the pleasure (will); we at the same 
time discriminate and identify the pleasure, and have it im- 
pressed on the memory (thought).” In this view of the inter- 
dependence of these functions Sir W. Hamilton emphatically 
concurs. 
§ 308. If, it may in addition he remarked, we can conceive 
of distinct insanities (the mind as such remaining sane) of 
either of the three main functions above stated; so we must 
conceive of distinct insanities of such subordinate functions (the 
mind as such still continuing sane) as these functions in chief 
may comprise. Thus we will hear of insane perception, insane 
memory, insane discrimination, etc., the mind still being sup- 
posed to be unimpaired. In fact there would be as many 
insanities as there are modes of mental thinking, feeling, and 
willing.(e) 
That, however, such derangements are not distinct, inde- 
pendent diseases, is shown by the fact, hereafter abundantly 
noticed,.that they occur sometimes alternately, sometimes suc- 
cessively, when there is true mental disease. The disease may 
flit, as does neuralgia, capriciously from function to function. 
Or, as is more usually the case, it may begin with a derange- 
ment of the perceptive powers, producing illusions and hallu- 
cinations, and end with a torpid prostration of these powers, 
producing senile dementia. It may, and frequently does, run 
through the stages of epilepsy, of illusion, of perverted domes- 
tic affections, of mania for killing, stealing, or burning, of 
general frenzy, and at last of exhausted dementia and fatuity. 
The difficulty that exists has arisen from the occasional treat- 
ment by experts of these floating symptoms of one disease as 
if they were independent diseases. There is but one mind to 
each of us, thought his mind has many functions. There can 
(e) See infra, § 533 et seq. 
307 § 310] 
MENTAL UNSOUNDNESS. 
[book i. 
be but one disease to which psychologically the term insanity 
may be applied, though this disease manifests itself, even in 
one and the same patient, in various ways.(/) 
§ 809. It is scarcely necessary to pause now to show how 
generally this view has been accepted by recent medical psy- 
What Morel(A) says, “ il n’y a pas qu’une folie, 
mais diverses variety de cette affection,” is of primary im- 
portance when analysis begins. There is not a series of inde- 
pendent insanities; there is but one insanity exhibiting itself 
in various phases. jSTor can we refuse to recognize the good 
sense with which Dr. Heumann(z) declares that all classifica- 
tion of insanity has proved to be artificial and therefore un- 
satisfactory ; and that no true progress in this science can be 
credited, until all classification is thrown overboard, and there 
is recognized but one generic type of mental disturbance; and 
further, that “true medical diagnosis does not need these arti- 
ficial divisions, and for forensic psychology they have been 
pernicious. The tendency of physicians to confuse or confound 
the judge by technical nomenclature (monomania, pyromania, 
etc.) instead of by psychological analysis elucidating the con- 
crete case, springs from a merely artificial systematization, and 
judicial psychology will for the first time assume its proper place 
at the forum when it is emancipated from the fetters of the 
schools.” These views Dr. Liman entirely “Mental 
health,” he tells us, “ is the antithesis of mental disease; and the 
sole duty imposed upon us is the exposition and development 
of the concrete individual case as such, which is now so easily 
lost sight of in the division of mental disease into numberless 
species and varieties.”(A) 
§ 310. Remembering, therefore, that the different forms of 
insanity described by psychologists are but phases of one 
disease, it may be of value to notice some of the modes in 
which these forms have been classified. 
(/) See fully infra, § 533 et seq. 
(g) See more fully infra, §§ 567-572. 
(A) Traite de la Med. Leg., Paris, 1866, § iv. 
(?) Lelirbucli der Psycliiadrie, Erlangen, 1859, p. 167-237. 
(j) Liman’s Casper, 1871, p. 550. 
(A) See more fully infra, § 567, and also supra, §§ 163-189. 
308 BOOK I.] 
PSYCHOLOGICAL THEORIES. 
[§ 311 
One of the most authoritative of these classifications is that 
reported by an international congress of psychological experts 
assembled in Paris in 1867.(7) It is as follows:— 
I. Simple insanity, embracing mania, melancholia, and monomania (thus negativing 
the claims of monomania to be considered a distinct disease), floating insanity, 
moral insanity (whose independent existence is also thus negatived), and de- 
mentia consequent on the above types. 
II. Epileptic insanity. 
III. Paralytic insanity, which is treated as a distinct disease. 
IV. Senile dementia. 
V. Organic dementia, which is that supposed to arise from some cerebral lesion. 
VI. Idiocy. 
VII. Cretinism. 
This analysis, however it may serve as a convenient enumera- 
tion, is destitute of logical value. It applies exclusively neither 
the test of causation, nor of symptom, nor order of development, 
but is purely arbitrary, in making, in the first head, symptom 
the test, and then grouping together symptoms the most in- 
congruous; resting the second, third, fourth, and fifth heads 
on superinduced physical causes, and the sixth and seventh on 
causes which are congenital. 
§ 311. Dr. Maudsley(m) adopts the following :— 
I. Affective or pathetic insanity. 
1. Maniacal perversion of the effective life. Mania sine delirio. 
2. Melancholic depression without delusion. Simple melancholia. 
3. Moral alienation proper. Approaching this, but not reaching the degree of 
positive insanity, is the insane temperament. 
II. Ideational insanity. 
1. General. 
a. Mania. 
C acute, 
b. Melancholia, chronic> 
2. Partial. 
a. Monomania. 
b. Melancholia. 
( primary, 
3. Dementia, -j , 
’ ( secondary. 
4. General paralysis. 
5. Imbecility. 
As to this analysis, it is to be observed simply, that, if it 
makes the “ effective life” independent of the mind, capable 
of beiiis diseased when the mind is undiseased, it runs counter 
(?) Hammond, Diseases of Nervous System, N. Y., 1871, p. 387. 
(to) Physiology and Pathology of the Mind, London, 1887. 
309 § 314] 
MENTAL UNSOUNDNESS. 
[book i. 
both to psychological and to juridicial science. If it does not 
make this assumption, it is, as an analysis, insensible and 
illogical. 
§ 312. Dr. Hammond gives the following, which, as a clas- 
sification of symptoms, is of much value:— 
I. Perceptional insanity, “ characterized by the tendenoy to the formation of erroneous 
perception either from false impressions of real objects (illusions) or from no 
external excitation whatever (hallucinations).” 
II. Intellectual insanity, “characterized by the existence of delusions.” Subsequently 
it is said, as explanatory of this distinction, that “ illusions and hallucinations 
may exist, and the individual be perfectly sensible that they are not realities. In 
such cases the intellect is not involved. But, if he accepts his false perceptions 
as facts, his intellect participates, and he has delusions. A delusion is, therefore, 
a false belief." The objection to this is that the terms illusion and delusion are 
used convertibly by most psychologists ; and that hallucination is not a symptom 
of insanity unless the unreal image is not merely the creation of a diseased brain, 
but is believed to be real. 
III. Emotional insanity. 
IV. Volitional insanity. 
V. Mania. 
VI. General paralysis. 
VII. Idiocy and dementia. 
§ 313. The analysis of Casper and Liman is both philoso- 
phical and simple. It is as follows:— 
I. Insanity in its progress, including despondency, melancholy, excitation, mania, as 
among the various forms in which this progress exhibits itself. 
II. Insanity in its results, including imbecility, dementia, and fatuity. 
§ 314. “ The various diseases included in the general term 
insanity, or mental derangement,” says Dr. Lay, “ may be con- 
veniently arranged under two divisions, founded on two very 
different conditions of the brain; the first being a want of its 
ordinary development, and the second, some lesion of its struc- 
ture subsequent to its development. In the former of these 
divisions, we have idiocy and imbecility, differing from each 
other only in degree. The various affections embraced in the 
latter general division may be arranged under two subdivi- 
sions, mania and dementia, distinguished by the contrast they 
present in the energy and tone of the mental manifestations. 
Mania is characterized by unnatural exaltation or depression 
of the faculties, and may be confined to the intellectual or to 
the effective powers, or it may involve them both, and these 
powers may be generally or partially deranged. Dementia 
310 BOOK I.J 
PSYCHOLOGICAL THEORIES. 
r§ bis 
depends on a more or less complete enfeeblement of the facul- 
ties, and may be consecutive to injury of the brain, to mania, 
or to some other disease; or it may be connected with the 
decay of old age. These divisions will be more conveniently 
exhibited in the following tabular view:— 
' Idiocy. 1. Resulting from congenital defect. 
2. Resulting from an obstacle to the de- 
velopment of the faculties, superven- 
ing in infancy. 
Imbecility. 1. Resulting from congenital defect. 
2. Resulting from an obstacle to the de- 
velopment of the faculties, superven- 
„ ing in infancy. 
Defective 
development 
of the 
faculties. 
INSANITY. 
1. General. 
2. Partial. 
Mania. 
Intellectual, 
Lesion of the 
faculties 
subsequent 
to their 
development. 
Affective, 
1. General. 
2. Partial. 
Dementia. 
1. Consecutive to mania, or injuries of the 
brain. 
2. Senile, peculiar to old age. (n) 
§ 815. The following classification of Flemming,(o) while 
less simple, is very valuable both for the delicate precision of 
its analysis, and for the important aid it aftords to the nomen- 
clature of forensic psychology:— 
I. INFIRMITAS. (Geistesschwliche.) Imbecility, the characteristic being the dimi- 
nution in psychical power. 
1st. As to origin. 
(1) Primaria seit congenita. (Syn. Idiotismus.) A defective de- 
velopment perceptible either at birth or infancy. 
(2) E morbo, arising from wounds on the head, brain or nervous 
fevers, or epilepsy. 
(3) Senilis, arising from decrease in vitality in the extreme stages of 
old age. 
2d. As to extent. 
(1) Infirmitas adstricta. Limited imbecility, the characteristic being 
diminution of particular organic powers. 
(a) Dysmenia. Weakness of memory, the characteristic 
being the feebleness of the reproductive power of the 
perceptive faculty, and the symptoms, an inability to 
remember things either recent or remote, distinctly or 
at all. 
(«) Ray on Insanity, 71. 
(o) Psydriatrisches Journal, Bd. I. lift. 1, p. 112. 
311 § 315] 
MENTAL UNSOUNDNESS. 
[BOOK I. 
(b) Infirmitas adstricta surdo-mutorum. Imbecility of the 
deaf and dumb. 
(c) Infirmitas adstricta cacorum. Imbecility of the blind. 
(2) Infirmitas sparsa. General weakness of mind, the characteris- 
tic being the absolute or relative weakness of all the mental 
and moral functions, and the symptoms, obtuseness and feeble- 
ness of the perceptive and attentive powers; feebleness of com- 
prehension, of ratiocination, of imagination, of memory, in a 
variety of gradations. 
II. VESANIA (Geistes verwirrung). Mental confusion, the characteristic being a 
depravity (depravation) of the psychical powers arising from excess or perversion. 
1st. Vesania dysthymodes, or dysthymia, disorder of temperament, the cha- 
racteristic being the depravity (depravation) of the psychical powers 
connected with an overpowering disturbance of the temperament. 
Symptoms ; an anomalous condition of the sensibility, the mental tone, 
the inclinations, and the impulses. The consequent deliria are the in- 
variable effect of the dysthymia, and depend upon the prevailing feel- 
ing or sentiment. 
(1) Dysthymia transitoria sen subita. Sudden dysthymia, the cha- 
racteristic being the suddenness and rapidity of its approach. 
Symptoms ; irritability, proneness to agitation, irascibility, 
excessive disgust, fear of death, extreme timidity, despair of 
happiness. It occurs frequently in the Stadium prodromormn 
of cerebral affections and nervous fevers, or of epilepsy and 
the cognate complaints ; and is sometimes, though more rarely, 
accompanied by the sudden suicidal impulse. It should be 
observed that dysthymia remittens sinks in the remission into 
the mere dysaethesis. 
(2) Dysthymia adstricta, or partial dysthymia, the characteristic 
being an anomalous condition of particular states of feeling, 
inclinations, and impulses. 
(a) Atra (the Melancholia Lypemonia of Esquirol), or 
gloomy Dysthymia, the characteristic being sadness, 
fear, dread, suspicion, malevolence, homesickness (nos- 
talgia), and the wildness and ferocity of the intoxicated. 
(Ferocitas et morositas ebriosorum.) 
(b) Dysthymia Candida, cheerful Dysthymia (Melancholia 
hilaris, Chceromanie Chambeyron), the characteristics 
being hilarity, recklessness of manner, raillery, prone- 
ness to see all things in the most vivacious light. 
(c) Dysthymia mutabilis, variable Dysthymia, the charac- 
teristic being vacillation between the two foregoing forms. 
(3) Dysthymia sparsa (apathica), general Dysthymia (Melancholia 
Attonita). The characteristics being apparent obtuseness, dull, 
heavy reveries and abstractions, prevalence of an indistinct 
sensation of discomfort, apathy to all extraneous impressions. 
2d. Vesania Annoetos, or Anoesia. Disturbance of the understanding. The 
characteristics being the depravity (depravation) of the psychical 
powers, with a controlling anomalousness of the intellectual faculties. 
Symptoms, deliria of various kinds, with manifestations of Dysthymia, 
which, however, are merely subordinate. 
312 BOOK I. 
PSYCHOLOGICAL THEORIES. 
[§ 315 
(1) Anoesia Transitoria, or Suhita. Sudden Anoesia. The charac- 
teristics being unexpected appearance and rapid subsidence. 
(a) Anoesia e febre. Febrile delirium. 
(5) Anoesia e potu nimio {ebrietas). Drunkenness. 
(c) Anoesia ex affectu, madness caused by agitation of mind. 
(d) Anoesia semisomnis. Confusion of mind in sleep. Sleep- 
drunkenness. 
(e) Anoesia Somnambula, or Spastica; Somnambulism. 
(2) Anoesia continua, chronic Anoesia. 
(3) Anoesia remittens. Remittent Anoesia. 
(4) Anoesia adstricta, partial Anoesia or Lunacy. The characteris- 
tics being delirium in particular intellectual departments. 
(a) Anoesia ad sensationes. Hallucinations (deliria of the 
senses). (Var. a fallacia sensuumet halludnatio ebrio- 
sorum), derangement of the senses consequent on excess 
of drinking. 
(b) Anoesia ad cogitationes, eccentricity, fixed insane ideas. 
(5) Anoesia sparsa. General Anoesia or lunacy, the characteristics 
being Deliria in every department of the intellectual faculties. 
Var. a Anoesia potatorum {Delirium tremens). 
3d. Vesania maniaca seu Mania. The characteristic being a depravity (de- 
pravation) of the psychical functions, with a concurrent anomalousness 
of the emotional and intellectual faculties. The symptoms arfe a violent 
and perverse temper, inclinations and impulses, with violent deliria, 
which mutually sustain and aggravate each other. 
(1) Mania transitoria subita, sudden mania, the characteristic being 
a sudden breaking out of mania without perceptible premoni- 
tory stages, and without previous Dysthymia or Anoesia ; gene- 
rally a crisis in sleep, or transition to the second class. 
{a) Mania subita a febre {Delirium encephaliticum), sudden 
delirium, with feverish symptoms of the brain and 
nerves. 
{h) Mania subita a potu nimio, arising from and during in- 
toxication. 
(c) Mania subita ex affectu, mania caused by excessive agita- 
tion of the affections. 
{d) Mania subita e partu, mania connected with parturition. 
(e) Mania subito e morbo occulto (vulgo), Amentia occulta, 
which also includes the previous species. 
(2) Mania continua, permanent mania. 
(3) Mania remittens, Remittent mania. (Remark—Remittent mania 
in remission turns into Anoesia, in some cases immediately 
into Dysthymia.) 
(4) Mania adstricta seu instinctiva. Moral Insanity. {Mania sine 
delirio of Pinel; Monomanie instinctive of Marc; Mania 
affectiva; Folie raisonante) ; the characteristics being in- 
sanity, apparently confined to specific morbid impulses. This 
class is almost always connected with the symptoms of Mania 
transitoria seu subita. 
(5) Mania sparsa, general mania is the characteristic, being a de- 
pravity (depravation) of both the moral and intellectual 
powers. 
313 § 317] 
MENTAL UNSOUNDNESS. 
[book i. 
§ 316. To Ellinger(p) we are indebted for the following :— 
I. Diseases of the affections, when the affections, sentiments, and desires are prepon- 
deratingly alienated, while the in tellectual faculties are affected inan inferior 
or at least a secondary degree. 
(a) Melancholy, the prevalent type being sadness, depression, fear, dread, 
and despair. 
(b) Frenzy, the prevalent type being mirth, mischievousness, anger. 
(c) Volatility (Launenhaftigkeit). Alternation between the two last- 
mentioned phases. 
II. Delirium, the sentiments and intellectual faculties being equally affected, and both 
the subjective and objective relations alike distorted. 
(a) (&) (c) Characterized by melancholy, frenzy, and the alternation of 
the two. 
III. Diseases of the intellect, where the affections take a subordinate part and the in- 
tellect is mainly disordered. 
(a) Partial. 
(b) General. 
(c) Debility, including idiocy and imbecility. 
§ 317. Without attempting a formal or scientific analysis, 
it is now proposed to consider the several points in which 
psychology comes in contact with the law of the land, in the 
following order:— 
A. General theories, § 305. 
(a') Preliminary observations, § 305. 
(51) Psychical theory, § 319. 
(c1) Somatic theory, § 320. 
(d1) Intermediate theory, § 329. 
B. How TO BE DETECTED, § 338. 
(a1) By whom, § 338. 
(51) At what time, § 341. 
(c1) By what tests, § 345. 
(a2) Physiognomy, § 345. 
(&2) Physical conditions, § 347. 
(e2) Hereditary tendency, § 362. 
(d2) Conversation and deportment, § 378. 
(e2) Writings, § 386. 
C/2) Prior history, § 388. 
(.g2) Nature of act, § 389. 
(p) Ueber die antropologischen Momente der Zurechnungs fahigkeit. 
Ludwigsburg, 1846. 
MENTAL UNSOUNDNESS. 
314 BOOK I.] 
PSYCHOLOGICAL THEORIES. 
[§317 
C. From what to be distinguished. 
(a1) Emotions, § 412. 
(a2) Remorse, § 413. 
(52) Anger, § 418. 
(c2) Shame, § 423. 
(d2) Grief, § 426. 
(e2) Homesickness, § 429. 
(/*) Fear, § 432. 
(61) Simulated insanity, § 443. 
(a2) Reasons for suspecting, § 445. 
(52) Forms generally simulated, § 446. 
(c2) Not proved by sanity at trial, § 452. 
(d2) Tests, § 454. 
D. As CONNECTED WITH DERANGEMENT OF SENSES AND DISEASE, § 461. 
(a1) Deaf and dumb, § 461. 
(b]) Blind, § 469. 
(c1) Epileptics, § 470. 
E. AS CONNECTED WITH SLEEP, § 482. 
(a1) Somnolentia or sleep-drunkenness, § 484. 
(b*) Somnambulism, § 492. 
F. As AFFECTING THE TEMPERAMENT, § 502. 
(a1) Depression, § 502. 
(bl) Hypochondria, § 508. 
(o') Hysteria, § 517. 
(d1) Melancholia, § 523. 
G. As AFFECTING THE MORAL SENSE, § 531. 
(a1) General “moral insanity,” § 531. 
(b1) Special “moral monomanias,” § 567. 
(a2) At present repudiated, § 567. 
(52) Absurdity of classification, § 572. 
(c2) “ Homicidal mania,” § 578. 
(d2) “ Kleptomania,” § 590. 
(e2) “ Pyromania,” § 604. 
(/2) “ Erotomania,” § 617. 
(g2) “ Pseudonomania,” § 626. 
(7i2) “ Oikeiomania,” § 630. 
(«2) “ Suicidal mania,” § 636. 
(j2) “Dipsomania,” § 639. 
(k2) “ Fanatico-mania,” § 644. 
(Z2) “Politico-mania,” § 679. 
H. As CONNECTED WITH PROSTRATION, § 682. 
(a1) Idiocy, § 682. 
(bl) Imbecility, § 691. 
(<?') Dementia, § 698. 
315 § 320] 
MENTAL UNSOUNDNESS. 
[book I. 
I. AS ACCOMPANIED WITII DELIRIUM, § 702. 
(a1) General delirium, § 702. 
(b1) Partial delirium, § 706. 
(a2) 3Iania, or Amentia occulta, § 706. 
(b2) Mania transitoria, § 710. 
J. As CONNECTED WITII DELUSIONS AND HALLUCINATIONS, § 723. 
K. AS CONNECTED WITH LUCID INTERVALS, § 744. 
A. Retribution, § 754. 
B. Prevention, § 763. 
C. Example, § 765. 
D. Reform, § 766. 
§ 318. To those who have examined that portion of the pre- 
ceding pages which treats of the legal relations of mental 
unsoundness, it will be obvious that no hypothesis can be con- 
structed which will meet with exactness every possible future 
case. !No general definition has therefore been attempted, and 
it is sufficient at present to notice the three prominent hypo- 
theses by which the cause, rather than the nature, of mental 
unsoundnes#s has been explained. This examination is here 
made the more thorough, from the fact that it is upon the 
result of this inquiry that the philosophy of the common law 
doctrine of insanity must depend. 
TREATMENT OF INSANE CRIMINALS. 
(61) Psychical theory. 
§ 319. This is based on the assumption that the primitive 
source of these diseases is in the soul itself, and that the soul 
is that which originally suffers, and imparts, when there is 
spmpathetic insanity, its malady to the body.^) 
(c1) Somatic theory. 
§ 320. The somatic theory takes for granted that the soul 
itself, as such, is incapable of originating a disease, but that 
(q) See an exposition of this in Dr. Henry Monro’s “ Remarks on Insanity, 
its Nature and Treatment,” London, 1850. I also call particular attention 
to President Noah Porter’s admirable work on the Human Intellect, of 
recent (1872) psychological treatises the most judicious as well as the most 
exact. 
316 BOOK I.] 
PSYCHOLOGICAL THEORIES. 
[§ 320 
the occasion of every affection of the mind is to be found in 
some abnormity of bodily development, and that aberrations 
of mind are nothing more than disturbances of some functions 
of the soul produced by bodily abnormities. This theory 
resolves itself into various subdivisions. One party assumes, 
that, while every mental disease is to be deduced from bodily 
causes, it is still to be treated as a self-existent disease; while 
others maintain that there can be no such thing as a diseased 
state of the mind, and that what we usually designate as such 
is nothing more than a symptom of some bodily disorder.(r) 
The somatic theory, so far as it involves phrenology, is exam- 
ined with singular accuracy and thoroughness by Sir William 
Hamilton, in the appendix to the first volume of his Lectures 
on Metaphysics.(s) He first discusses the phrenological doctrine 
of the cerebellum, and by a series of experiments explodes 
the phrenological hypothesis. After having weighed, with 
peculiar care, and under precautions which exclude all the 
known possibilities of mistake, over one thousand brains of 
fifty different species of animals, he shows 
(1) The cerebella of animals generally are not, during a 
certain period subsequent to birth, less in proportion to the 
brain proper than in adults. 
(2) In no species of animal has the female a proportionally 
smaller cerebellum than the male; while in most species, 
“ and this according to a certain law, she has a considerably 
larger.” 
(3) So far from being the case, as is alleged by phrenologists, 
that in impuberal animals the cerebellum, in proportion to the 
(r) A very ingenious though unsound defence of the somatic will 
be found in Mr. M. B. Sampson’s “ Criminal Jurisprudence considered in rela- 
tion to Cerebral Organization,” London, 1843. Hobbes’ famous theory 
drifts in the same direction. The result of this would be to make all re- 
straint an injustice. So far as concerns phrenology, the reader is particularly 
referred to Sir William Hamilton’s Lectures on Metaphysics, pp. 650-658, 
where the phrenological theory is thoroughly demolished. For a copious and 
eleborate recent history of materialism, coupled with some ingenious specu- 
lations on its recent developments, see Geschichte des Materialmus, und 
Kritik seiner Bedeutung in der Gegenwart, von Friedrich Albert Lange, 
Iserlohn, 1866. 
(s) Gould & Lincoln, 1859. 
317 § 320] 
MENTAL UNSOUNDNESS. 
[book i. 
brain proper, is greatly less than in adults, the contradictory 
is shown. 
(4) The phrenological assertion, that “ the proportion of the 
cerebellum to the brain proper in different species is in pro- 
portion to the energy of the phrenological function attributed 
to it,” is equally groundless. 
We add one or two distinct points made by this most emi- 
nent and most reliable of modern psychologists: “I shall, 
however, give you the sample of another general fact. The 
organ of veneration rises in the middle on the coronal surface 
of the head. Women, it is universally admitted, manifest 
religious feeling more strongly and generally than men, and 
the phrenologists accordingly assert that the female cranium 
is higher in proportion in that region than the male. This I 
found to be the very reverse of truth, by a comparative average 
of nearly two hundred skulls of either sex. In man, the 
female encephalos is considerably smaller than that of the 
male, and in shape the crania of the sexes are different. By 
what dimension is the female skull less than the male ? The 
female skull is longer, it is nearly as broad, but it is much 
lower than the male. This is only one of several curious 
sexual differences of the head. 
“ I do not know whether it be worth while mentioning, that, 
by a comparison of all the crania of murderers preserved in 
the Anatomical Museum of this University, with about nearly 
two hundred ordinary skulls indifferently taken, I found that 
these criminals exhibited a development of the phrenological 
organs of destructiveness and other evil propensities smaller, 
and a development of the higher moral and intellectual qua- 
lities larger, than the average. Hay, more, the same results 
were obtained when the murderers’ skulls were compared, not 
merely with common average, but with the individual crania 
of Robert Bruce, George Buchanan, and Dr. David Gregory.” 
Then, as to the frontal sinuses:— 
“ I omit all notice of many other decisive facts subversive 
of the hypothesis in question; but I cannot leave the subject 
without alluding to one, which disproves at one blow a multi- 
tude of organs, affords a significant example of the accuracy 
of statement, and shows how easily manifestation can, by the 
318 BOOK I.] 
PSYCHOLOGICAL THEORIES. 
[§ 320 
phrenologists, be accommodated to any development, real or 
supposed. I refer to the frontal sinuses. These are civities 
between the tables of the frontal bone, in consequence of a 
divergence from each other. They are found in all puberal 
crania; and are of variable and (from without) wholly inap- 
preciable extent and depth. * * * Now the phrenologists 
have, fortunately or unfortunately, concentrated the whole of 
their very smallest organs over the region of the sinus. How 
is it possible, he asks, that eye or finger can detect minute de- 
grees of cerebral development beyond these invisible, unknown 
cavities, of various extent ? The phrenologists were not ac- 
quainted with the anatomy of the part. Gall asserted that 
the sinus was often absent in men ; seldom or never found in 
women. Spurzheim declares that the frontal sinuses are found 
only in old persons, or after chronic insanity.” 
In reply to this, Sir W. Hamilton shows, after an inspection 
of several hundred crania, that no skull is without a sinus. 
Behind the spacious caverns, he then goes on to show, in 
utter ignorance of the extent, frequency, and even of the ex- 
istence of this impediment, the phrenologists have placed not 
one large, but seventeen of their smallest organs. 
By concentrating all their organs of the smallest size within 
the limits of the sinus, they have, in the first place, put the 
organs whose range of development is least, behind an obstacle 
whose range of development is greatest. 
In the second place, they have at once thrown one-half of 
their whole organology beyond the range of possible discovery 
and possible proof. 
In the third place, by thus evincing that their observations 
on that one-half had been only illusive fancies, they have fur- 
nished a criterion of the credit that may be accorded to their 
observations in relation to the other; they have shown, in this 
as in other portions of their doctrine, that manifestation and 
development are quantities, which (be they what they may) 
can, on their doctrine, always be brought to an equation. 
Fourthly, as if determined to transcend themselves, and find 
“ a lower deep beneath the lowest,” they have placed the least 
of their least organs at the very point where this great obstacle 
319 § 321] 
MENTAL UNSOUNDNESS. 
[book i. 
is most potent. The sinus is almost always deepest towards 
the inner angle of the eyebrows, and it is just there that the 
minute organs of size, configuration, weight, resistance, etc., 
are said to be. 
In the fifth place they have been quite as unfortunate in the 
location of the other minute organs. These they arranged in 
a series along the upper edge of the orbit, where, independently 
of the sinus, the bone varies more in thickness than in any 
other part of the skull. Here have they packed those organs 
more closely than peas in a pod, which they scarcely exceed in 
size. If these pretended organs actually and severally pro- 
truded from the brain (which they do not), if there were no 
sinus intervening (as there is), if they were under the thinnest 
part of the cranium (instead of the thickest), still these petty 
organs could not reveal themselves by showing any elevation, 
and especially any sudden elevation of superincumbent bone. 
They might possibly indent the inner surface, and cause a slight 
attenuation of the bone—and this is all they could do. The 
glands of Pacchioni, as they are improperly called, which rise 
on the coronal surface of the encephalos, and are often even 
larger than the bodies in question, though they attenuate to 
the thinnest, never elevate in the slightest the external body 
plate. 
The thoroughness of the material on which Sir W. Hamil- 
ton acted is shown by the fact that all the crania in the public 
Anatomical Museum at Edinburgh were inspected by him. 
He subsequently obtained access to fifty crania, with their 
supposed developments marked by SpurzheinTs own hand, 
which had passed to the Royal Museum of Natural History at 
Edinburgh. By a tabular view he shows that a large propor- 
tion of the supposed “ organs” were covered or crowded by the 
frontal sinus. 
§ 321. According to the late Hr. Bell, of the McLean Asy- 
lum, Somerville, Massachusetts, antopsies of the insane gener- 
ally present no material lesion of the brain; “changes, indeed, 
there are to be seen, but only those that may have occurred in 
articulo-mortis ;”(t) and it was stated by Hr. Bell, in support of 
(it) Am. Journ. of Insan. x. p. 73. Cited in Stover, ut infra, p. 47. 
320 BOOK I.] 
PSYCHOLOGICAL THEORIES. 
[§ 323 
this opinion, that “ the late Dr. Waldo J. Burnett, of Boston, 
one of the most accomplished microscopists in the country, had 
made examinations of persons who had died in a state of 
chronic insanity, but had been unable to discover any change 
of structure whatever, or any sign to indicate that it did not 
belong to an individual whose mind was unaffected. ”(w) 
§ 322. Bearing on this point are some interesting observa- 
tions of Dr. Storer, in his late work on “ The Causation, Course, 
and Treatment of Beflex Insanity in This very 
experienced observer, in vindicating the position that “ many 
cases of mental disturbance in women are of reflex character, 
arising from pelvic irritation, and that local treatment would 
prove of advantage in very many more cases than those for 
which as yet it had ever been employed,” shows that in a great 
majority of cases insanity is not accompanied with organic 
cerebral change. That in woman insanity is generally periphe- 
ral and reflex, dependent upon functional or organic disturb- 
ance of the reproductive system he shows by the admissions 
of psychologists, that there can be cerebral diseases without 
insanity and insanity without cerebral disease; by the result 
of autopsies; by analogies from other sympathetic results; 
by cases on record both psychical and obstetrical; by the 
analogies of the time of development; by the effect of treat- 
ment ; by the theory of ultimate causation: by the indica- 
tions of prevention; and by the indications of rational treat- 
ment. 
§ 323. So far as concerns autopsies, it is stated by Dr. 
Storer, that the results show that “ insanity may exist with- 
out structural changes of the brain, and that structural changes 
in the brain may exist without insanity.” He cites the late 
Dr. Bell, of the Somerville Asylum, whose statement has been 
just given, that the autopsies of the insane generally present 
no lesion of the brain ; and that the changes noticeable may 
be traceable solely to death; and he quotes Dr. Bucknill(z<;) 
as maintaining that “the brains of the insane appear to be 
certainly not more liable than those of others to various 
(u) Am. Journ. of Insan. x. p. 73. Cited in Stover, ut infra, p. 47. 
(») Boston: Lee & Sliepard, 1871. (w) P. 430. 
YOL. I.—21 
321 § 324] 
MENTAL UNSOUNDNESS. 
[book i. 
incidental affections. * * * It seemed reasonable to ex- 
pect that by the aid of the microscope one would be able to 
ascertain whether any exudation or addition to the stroma of 
the brain, or any change in size, shape, or proportional number 
of its cells, takes place ; and in the indurated brain of chronic 
insanity, whether that finely fibrillated exudate, which has 
been described by some writers, actually exists; also, whether 
in extreme atrophy of the brain, any proportion exists in the 
diminution or degeneration in the form of the cells or tubes. 
In none of these 'points of inquiry have we been able to attain the 
slightest success.” After further citations, Dr. Storer proceeds 
to say that “ it is thus seen not merely that there is no direct 
correspondence between the exterior of the skull and mental 
integrity, any more than between the exterior of the skull and 
the shape and consistence of its contents.” And in cases of 
insanity among women, it is shown by this eminent practi- 
tioner that the causes of such insanity are largely to be found 
in derangement of the reproductive organs, to be met by spe- 
cific local treatment. Yet, at the same time, it is stated that 
the indulgences allowed to the mind when in a healthy state 
have a large share in determining the character of its passions 
when diseased. 
§ 324. The conflict on this subject may be exhibited by a sin- 
gle illustration. Aphasia, or the loss of speech, is a well known 
disease, sometimes caused by defect of memory, sometimes by 
apparent incapacity of the motor powers. As belonging to 
the former of these classes may be mentioned the case of 
the wife of the Rev. William Jay, hereafter to be noticed;^1) 
and that of a person reported in 1871, by Dr. J. G-. Glover to 
the Clinical Society of London. In the latter case, the patient 
was without any trace of cerebral disease, with no hemi- 
plegia, “ with no difference in the sensation of the two sides, 
with ability to walk, write, and to protrude the tongue straight; 
was yet unable, when shown a familiar object, to recall the 
proper name for it, but would designate a book before him as 
‘good,’ ‘house,’ ‘butter;’ called a watch ‘tempus fugit,’ though 
able to write the word ‘watch’ correctly.” A similar perver- 
(w1) Infra, § 692. 
322 ROOK I.] 
PSYCHOLOGICAL THEORIES. 
[§ 325 
sion of words pervaded his whole range of vocal expression. 
Dr. Rush, in his chapter on “ Derangement of the Memory,” 
speaks (1) of “ oblivion of names and vocables of all kinds(2) 
of “ substitution” of words, as in the case of a gentleman “ who, 
in calling for a knife, asked for a bushel of wheat(3) of “ an 
oblivion of the names of substances in a vernacular language, 
and a facility of calling them by their proper names in a dead 
or foreign language,” of which, in addition to the cases given 
by Dr. Rush, may be mentioned that of the servant girl referred 
to by Sir W. Hamilton, who repeated, when in a fever, a Latin 
address she had heard her master recite when sweeping his room; 
(4) an “oblivion of all foreign and acquired languages, and a re- 
collection only of vernacular languages;” (5) “an oblivion of the 
sound of words, but not of the letters which compose them.” 
§ 325. Aphasia, consists of a confusion of the idea of lan- 
guage as such, and is to be distinguished from aphonia, which 
is simply loss of voice; and from paralysis which affects the 
tongue or muscles of articulation. The question as to the 
physical origin of aphasia was first agitated by Gall, who an- 
nounced that the faculty of language was seated in those por- 
tions of the brain which rest on the hinder part of the super- 
orbital plate; and he associated a protusion of the eyes with this 
faculty, giving great facility in learning and retaining words. 
By Bouillard, aphasia was declared to be in many cases asso- 
ciated with a diseased or mutilated state of the anterior lobes 
of the brain ; but Dr. after a careful survey of 
the reported cases, says “ that there can be no doubt that Bouil- 
lard is wrong in claiming that injury of the material lobes 
is necessarily followed by some derangement in the faculty of 
speech.” Dr. Hammond, after reviewing the theories of Dax 
and Broca, declares,^1) (1) “that the organ of language is 
situated in both hemispheres, and in that part which is nour- 
ished by the middle cerebral artery:” (2) that while the more 
frequent occurrence of right hemiplegia, in connection with 
aphasia, is in great part the result of the anatomical arrange- 
ment of the arteries which favors embolism on that side, there 
(x) Diseases of the Nervous System, New York, 1871, p. 183. 
(«') Ibid. p. 202. 
323 § 327] 
MENTAL UNSOUNDNESS. 
[book i. 
is strong; evidence to show that the left side of the brain is 
more intimately connected with the faculty of speech than the 
right.” But even among those advocating a material site for 
the organ of speech, these conclusions are not accepted as ab- 
solute. Thus Schroeder van der Kalk, after a series of experi- 
ments, tells us that language unquestionably takes its origin 
from the “ corpora olivaria.” 
§ 326. On the other hand, we have from a distinguished prac- 
tical physician an elaborate treatise, published in 1870, to show 
that speech has no material centre ; that all attempts, to give 
it anything hut a psychical origin have failed; that aphasia may 
and does exist without either right hemiplegia, or lesion of 
the third left anterior convolution, or any of the other symp- 
toms suggested by materialistic psychologists ; and that these 
lesions may exist without having any effect on speech.(y) 
Another objection to the exclusively materialistic view 
lies in the impossibility of reconciling the indelibility of the 
records of memory with the acknowledged fact of the con- 
stant efflux and change of the material substance of the human 
frame. Old persons, as is well known, recall with peculiar 
vividness the impressions of infancy. Between infancy and 
old age, however, the matter of the brain, like that of the rest 
of the body, has not merely grown and increased, but has been 
subjected to a series of evolutions by which its substance has 
been constantly changed. If memory is the simple inspection 
of the inscriptions on a cerebral tablet, then, as the tablet 
changes, memory must fade. But the fact is that memory is 
often intensified in proportion to the extent and number of cere- 
bral changes and evolutions. Memory must be therefore some- 
thing else than an attribute of matter, and, if so with memory, 
so, a fortiori, with the other functions of the intellect.^) 
§ 327. Dr. Maudsley, the most eminent English representative 
of this school, admits that the evidence on which the mate- 
rialistic hypothesis rests is not sufficient to sustain it. In his 
work on the Physiology and Pathology of the Mind,(a) he ex- 
(y) On Aspliasia or Loss of Speech and the Localization of Language, lr 
Frederick Bateman, M.D., Physician to the Norfolk and Norwich Hospital 
London: Churchill, 1870. 
(s) See also infra, § 329. («) London, 1867, p. 367. 
324 BOOK I.] 
PSYCHOLOGICAL theories. 
[§ 328 
plains this by saying, that, “ where the subtlety of nature so far 
exceeds the subtlety of human investigation, to conclude from 
the non-appearance of change to the non-existence thereof 
would be just as if the blind man were to maintain that there 
were no colors, or the deaf man to assert that there was no 
sound. Matter and force are necessary coexistents, and mutually 
suppose one another in human thought; and to speak of change 
in one is of necessity to imply change in the other. * * * 
And there are numerous facts available to prove that the most 
serious modifications in the constitution of nerve element may 
take place without any knowledge of them otherwise than by 
the correlative change of energy.” But such reasoning as 
this cannot be accepted in law. A plaintiff brings an action 
of ejectment, and, without producing evidence to support his 
claim, declares (1) that it is insusceptible of proof, (2) that to 
dispute it is as just as it would “ be for the blind man to 
maintain that there were no colors, or the deaf man to assert 
that there was no sound.” But if the claim is one as to which 
there is no “ knowledge,” and to test which the human mind is 
impotent, then it is one which ought not to be brought. For 
materialism is the plaintiff in a great suit on which great 
results, religious and judicial, depend. If it be true, all our 
ordinary notions of penal responsibility will be upset. Thus 
Dr. Maudsley adopts at the head of his seventh chapter, which 
discusses volition, Spinoza’s statement that “ it is a delusion 
on the part of mankind to fancy themselves free agents. * * * 
The idea that men are in possession of their liberty arises from 
the fact that they are ignorant of the cause for their actions.” 
This Dr. Maudsley expands so as to make it appear that all 
acts are the result of material necessity. The law, on the 
other hand, holds that all acts, so far as concerns the sane, are 
free. When Dr. Maudsley assails this settled position, we 
cannot allow ourselves to be convinced, when we call for proof, 
by being told that we are like blind and deaf men who un- 
dertake. to judge of color and sound. 
§ 328. Dr. Maudsley, however, is careful to disclaim any 
necessary relation between materialism and the doctrines of 
the immortality and future responsibility of the soul. “ Who- 
325 § 329] 
MENTAL UNSOUNDNESS. 
[book i. 
soever,” he writes,(b) “ believes sincerely in the doctrine of 
the resurrection of the body, as taught by the Apostle Paul, 
which all Christians profess to do, must surely have some dif- 
ficulty in conceiving the immortality of the soul apart from 
that of the body; for if the apostle’s preaching and the Chris- 
tian’s faith be not in vain, and the body do rise again, then it 
may be presumed that the soul and it will share a common 
immortality, as they have shared a common mortality. So 
far, then, from materialism being the negation of immortality, 
the greatest of the apostles earnestly preached materialism as 
essential to the life which is to come. There is little or less 
justification for saying that materialism involves of necessity 
the denial of free will. The facts on which the doctrine of 
free will are based are the same facts of observation, whether 
spiritualism or materialism be the accepted faith, and the 
question of their interpretation is not essentially connected 
with the one or the other faith; the spiritualist may con- 
sistently deny, and the materialist consistently advocate, free 
will. In like manner, the belief in the existence of God 
is nowise inconsistent with the most extreme materialism. 
* * * 'j'pg spiritualist may deny God the power to make 
matter think, but the materialist need not deny the existence 
of God because he holds that matter may be capable of 
thought. ”(c) 
(dl) Intermediate theory. 
(a2) Its basis. 
§ 329. This view attributes to the body and the soul alike 
originative influence, in the growth of mental diseases.(of) The 
l 
(5) Body and Mind, London, 1870, p. 123. 
(c) See also a curious essay on this topic, by Mr. I. B. Dalgairns, in the 
Cotemporary Review for December, 1870 ; and see infra, §§ 332-335. 
(d) See a very capable sketch of these theories in Schurmayer, Gerichtliclie 
Medicin, § 521, from which this analysis is taken; and see also particularly 
Dr. Rush’s examination of the same points in his treatise on the Mind, pp. 
12, 13, 14, and where that eminent authority (p. 16) localizes madness in the 
bloodvessels of the brain. 
Feuchtersleben, in his celebrated work (Principles of Medical Psychology, 
translated by Evans Lloyd, printed by the Sydenham Society, London, 1847), 
may be considered as adopting the intermediate theory. Insanity, he tell us, 
326 BOOK I.] 
PSYCHOLOGICAL THEORIES. 
[§ 329 
theory is the one best sustained by modern induction, and is 
that which is most consistent, as will presently be seen, with 
the Christian standard. 
is not either a bodily or a mental disease, being a disturbed reciprocal rela- 
tion of mind and body. #Dr. Jamieson (Lectures on the Med. Jur. of Insanity, 
by Robert Jamieson, M.D.) takes this same view. 
The religious aspects of the question are well discussed in the London 
Christian Observer, vol. 29, p. 265, and by the Rev. Dr. Jones, in “Man, 
Moral and Physical,” Phil. I860. . 
Sir Benjamin Brodie, in a late very interesting essay (Psychological In- 
quiries, etc., London, 1854), gives the following conclusive objections to the 
phrenological phase of the somatic theory : “Now there are two simple 
anatomical facts which the founders of this system have overlooked, or with 
which they are probably unacquainted, and which of themselves afford a 
sufficient contradiction of it. 
“ 1st. They refer the mere animal propensities chiefly to the posterior lobes, 
and the intellectual faculties to the anterior lobes of the cerebrum. But the 
truth is, that the posterior lobes exist only in the human brain, and in that of 
some of the tribes of monkeys, and are absolutely wanting in quadrupeds. 
Of this there is no more doubt than there is of any other of the best estab- 
lished facts in anatomy ; so that, if phrenology be true, the marked distinction 
between man on the one hand, and a cat, or a horse, or a sheep on the other, 
ought to be, that the former has the animal propensities developed to their 
fullest extent, and that these are deficient in the latter. 
“2dly. Birds have various propensities and faculties in common with us, 
and in the writings of phrenologists many of their illustrations are derived 
from this clase of vertebral animals. But the structure of the bird’s brain is 
essentially different, not only from that of the human brain, but from that of 
the brain of all mammalia. In order that I may make this plain, you must 
excuse me if I repeat what I said on the subject formerly. In the mammalia 
the name of the corpus striatum has been given to each of two organs of a 
small size compared with that of the entire brain, distinguished by a peculiar 
disposition of the gray and the fibrous or medullary substance of which they 
are composed, and placed under the entire mass of the hemispheres of the 
cerebrum. In the bird’s brain what appears to a superficial observer to 
correspond to these hemispheres is found, on a more minute examination, to 
be apparently the corpora striata developed to an enormous size ; that which 
really corresponds to the cerebral hemispheres being merely a thin layer ex- 
panded over their upper surface, and presenting no appearance of convolu- 
tions. It is plan then, that there can be no phrenological organs in the bird’s 
brain, corresponding to those which are said to exist in the human brain, or 
in that of other mammalia. Yet birds are as pugnacious and destructive, as 
much attached to the localities in which they reside, as any individual 
among us.” 
In his interesting work on Criminal Jurisprudence, Mr. Sampson adopts the 
views of the author of “Vestiges of the Natural History of Creation,” and 
327 § 330] 
MENTAL UNSOUNDNESS. 
[book i. 
Independently of the pathological difficulties in the way 
of the somatic theory, psychological research testifies most 
strongly against it.(e) The mental and moral functions are 
the immediate products of an independent sphere of organ- 
ism, and not to be explained by anything lying outside of that 
sphere. The brain and the nerves have only the physical part 
of perception and motion, and to some extent the regulation of 
the functions, to perform; but the soul cannot but be con- 
sidered as distinct from this activity of the nerves. The 
somatic theory, which confounds the two, will never be able 
to make a satisfactory distinction between palsy and imbecility, 
between convulsions and ravings, between sensuous hallucina- 
tions and insanity.(/) This theory, therefore, fails in affording 
support to any practical system of therapeutics. 
§ 330. The psychological theory, at its first inception, split 
upon the opposite rock, in denying the influence of the physical 
processes upon mental diseases, in the face of experience. 
In opposition to the somatists, it was thought necessary to 
exclude all natural causes from the explanation of the origin 
of mental affections, and to ascribe them to an act of volun- 
ascribes every criminal action to some abnormal or morbid condition of the cere- 
bral organization. This fundamental proposition is, that “ every manifestation 
of the mind depends upon the confirmation and health of its material instru- 
ment, the brain ; and, as it is not the function of a sound and healthy brain 
to give rise to any other than healthy manifestations, so no error of judgment 
can ever arise but as the result of a defective condition of that organ.” He 
proceeds to say :— 
“Mr. Hurlbut, an eminent counsellor, and one of the Supreme Judges in 
the State of Hew York, in his ‘ Essays on Human Rights and Political Gua- 
rantees,’ a work which is well worthy of perusal, promulgates the same doc- 
trine, which, on the other hand, is very ably controverted by Dr. Hood.— 
‘ Suggestions for the further provision of Criminal Lunatics, by Charles Hood, 
M.D. London, 1854. pp. 126, 127.’” 
(e) Supj'a, §§ 320-327. Siebold, Lehrbuch der Gericlit. Med., Berlin, 1847, 
§ 194 ; L. Krahmer, Handbuch der Gericht. Med., Halle, C. A. Scliwetschke, 
1851, § 126 ; Heinrotli, Syst. der psychischgericlit. Med. Leipsic, 1825 ; Ivant, 
Antliropologie Konigsb. 1798; Metzger’s Ger. Med. Abhandl., Konigsb. 1803. 
(/) Lemons Cliniques sur 1’Alienation Mentale, par Falret, le<jon 1, p. 8, 
Paris, 1854. The most thorough of the German advocates of the somatic 
theory is Friedreich, particularly in his “ Historiscli-kritische Darstellung 
der Theorien fiber das Wesen und den Sitz der psychisclien Krankheiten,” 
Leipsic, 1836. 
328 BOOK I.] 
PSYCHOLOGICAL THEORIES. 
[§ 331 
tary self-inthralment, which, in all cases, was to he attributed 
to some prior moral excess or delinquency incurred with a 
knowledge of the consequences. But a derangement of mind 
is not identical with sin. For, though every vice, every sin, 
is an abnormity of the soul, yet every abnormity of the soul 
is not sin. A lunatic may be, in a human sense, innocent of 
positive guilt; and, on the other hand, the worst of criminals 
may retain his sanity. It is impossible to adhere to this doc- 
trine in practice, without reducing the entire treatment of the 
disease to a system of rewards and punishments; and the 
vagueness of the idea of freedom and constraint, the impossi- 
bility of distinguishing between the moral thraldom of the 
criminal and that of the sick man, will throw into confusion 
the entire system of forensic psychology, (y) It is equally 
wrong to derive all diseases of the mind from the passions, 
although the latter may be important causes, and, in the more 
advanced stages, symptoms of insanity.(A) At the same time, 
as will hereafter be more fully shown,(i) there is in the mass 
of cases of insane convicts such an amount of responsibility 
as to require the infliction of a degree of punishment which, 
though different from that imposed on the sane, will yet be 
accompanied with a corrective as well as a jjreventive dis- 
cipline. 
§ 331. The intermediate theory is that to which the soundest 
psychologists now tend. “ In the first place,” says Sir William 
Hamilton, “there is no good ground to suppose that the mind 
is situated solely in the brain, or exclusively in any one part 
of the body. On the contrary, the supposition that it is really 
(gO Etudes Medico-psychologiques, parM. Renaudin, p. 166, art. 30, Sur la 
responsabilite morale, Paris, 1854; Leqons Cliniques de M. Falret, p. 11, 
discours d’ouverture, Paris, 1854 ; Manuel Complet de Medecine Legale, par 
J. Briand, sect.troisieme, art. iii. p. 560, Paris, 1852. 
(7i) See infra, § 347. Heinroth is the leading representative of the psycho- 
logical theory. See his “ Lehrbuclx der Seelenkrankheiten,” Leipsic, 1818, 
and his “System der psychischgerichtlichen Medicin,” Leipsic, 1825. Dr. 
Mayo, in his “Medical Testimony on Lunacy,” goes some distance in the 
same direction ; and, as has been seen, very justly argues in favor of a dis- 
crimination of punishment between the malicious and the unconscious insane 
criminal. Mayo, etc., 50, 51. 
(i) See infra, §§ 753-770. See to this effect, Holtzendorff’s Enc. 1870. Tit. 
Wahnsinn. 
329 § 332] 
MENTAL UNSOUNDNESS. 
[book i. 
present wherever we are conscious that it acts—in a word, the 
Peripatetic aphorism, the soul is all in the whole and all in 
every part—is more philosophical, and consequently more pro- 
bable, than any other opinion. It has not been always noticed, 
even by those who deem themselves the chosen champions of 
the immortality of the soul, that we materialize mind when 
we attribute to it the relations of matter. Thus, we cannot 
attribute a local seat to the soul without clothing it with the 
properties of extension and place, and those who suppose this 
seat to be but a point only aggravate the difficulty. Admitting 
the spirituality of mind, all that wTe know of the relation of 
soul and body is that the former is connected with the latter 
in a way of which we are wholly ignorant; and that it holds 
relations, different both in degree and kind, with different 
parts of the organism. We have no right, however, to say that 
it is limited to any one part of the organism; for even if we 
admit that the nervous system is the one to which it is proxi- 
mately united, still the nervous system is itself universally 
ramified throughout the body; and we have no more right to 
deny that the mind feels at the finger-points, as consciousness 
assures us, than to assert that it thinks exclusively in the brain. 
The sum of our knowledge of the connection of mind and 
body is, therefore, this: that the mental modifications are de- 
pendent on certain corporal conditions; but of the nature of 
these conditions we know nothing. For example, we know, 
by experience, that the mind perceives only through certain 
organs of sense, and that through these different organs it 
perceives in a different manner. But whether the senses be 
instruments, whether they be media, or whether they be only 
partial outlets to the mind incarcerated in the body, on all this 
we can only theorize and conjecture.”^') 
§ 332. The intermediate theory has at least not been re- 
jected by standard Christian theologians. “ The resurrection,” 
says Bishop Pearson, “ is not only in itself possible, so that no 
man with any reason can absolutely deny it, but it is also upon 
many considerations highly probable, so that all men may very 
rationally expect it. If we consider the principles of humanity, 
O') Sir William Hamilton’s Lectures on Metaphysics, p. 350. See infra, 347. 
330 BOOK I.J 
PSYCHOLOGICAL THEORIES. 
[§ 333 
tlie parts of which we all consist, we cannot conceive this 
present life to be proportionable to our composition. The souls 
of men, as they are immaterial, so they are immortal; and 
being once created by the Father of spirits, they receive a sub- 
sistence for eternity ; the body is framed by the same God to 
be a companion for his spirit, and a man born into the world 
consisteth of these two. Now, the life of the most aged 
person is but short, and many far ignobler creatures have a 
longer duration. Some of the fowls of the air, several of the 
fishes of the sea, many of the beasts of the field, divers of the 
plants of the earth, ai*e of a more durable constitution, and 
outlive the sons of men. And can we think that such material 
and mortal, that such inunderstanding souls, should by God and 
nature be furnished with bodies of so long permansion, and 
that our spirits should be joined unto flesh so subject to cor- 
ruption, so suddenly dissolvable, were it not that they lived 
but once, and so enjoyed that life for a longer season, and then 
went soul and body to the same destruction, never to be re- 
stored to the same subsistence ? But when the soul of man, 
which is immortal, is forced from its body in a shorter time, 
nor can by any means continue with it half the years which 
many other creatures live, it is because this is not the only life 
belonging to the sons of men, and so the soul may at a shorter 
warning leave the body which it shall resume again.”(k) 
§ 333. To this may be added the authority of Isaac Taylor, 
who, in his “ Physical Theory of another Life,” after point- 
ing out how completely the question whether the human soul 
is ever actually or entirely separated from matter is passed 
over by St. Paul, as an inquiry altogether irrelevant to religion, 
continues: “ Let it be then distinctly kept in view that, al- 
though the essential independence of mind and matter, or the 
abstract possibility of the former existing apart from corporeal 
life, may well be considered as tacitly implied in the Chris- 
tian’s scheme, yet that an actual incorporeal state of the human 
soul, at any period of its course, is not involved in the princi- 
ples of our faith any more than is explicitly asserted. 
(k) Pearson on the Creed, ed. 1853, p. 558. See also Dr. Maudsley’s 
remarks, supra, § 328. 
331 332 
MENTAL UNSOUNDNESS. 
[book i. 
§ 334. “We are unable,” says Pascal, “to conceive what is 
mind; we are unable to perceive what is matter; still less are 
we able to conceive how these are united; yet this is our 
proper nature.” 
§ 335. “ Such,” says President Edwards, the first metaphy- 
sician of his country, and perhaps the first of his age, “ seems 
to be our nature, and such the laws of the union of soul and 
body, that there never is, in any case whatsoever, any lively 
and vigorous exercise of the will or inclination of the soul 
without some effect upon the body in some alteration of the 
motion of its fluids, and especially of the animal spirits. And, 
on the other hand, from the same laws of the union of the soul 
and body, the constitution of the body and the motion of its 
fluids may promote the exercise of the affections, but yet it is 
not the body, but the mind only that is the proper seat of the 
affections. The body of man is no more capable of being 
really the subject of love or hatred, joy or sorrow, fear or 
hope, than the body of a tree, or than the same body of man 
is capable of thinking and understanding. As it is the soul 
only that has ideas, so it is the soul only that is pleased or 
displeased with its ideas. As it is the soul only that thinks, 
so it is the soul only that loves or hates, rejoices or is grieved 
at what it thinks of. Nor are these motions of the animal 
spirits and fluids of the body anything properly belonging to 
the nature of the affections, though they always accompany 
them in the present state, but are only effects or concomitants 
of the affections that are entirely distinct from the affections 
themselves, and no way essential to them; so that an unbodied 
spirit may be as capable of love and hatred, joy or sorrow, hope 
or fear, or other affections, as one is that is united to a body.”(7) 
(b2) Effect of intermediate theory on responsibility. 
§ 336. The intermediate theory, as above stated, relieves the 
doctrine of criminal responsibility of some of its chief difficul- 
ties. If the somatic theory be correct, then a criminal propensity 
is a physical malformation, for which the defendant is no more 
responsible than he is for a malformation of the limbs. A squint 
(0 Edwards on Religious Affections, p. 15. 
332 BOOK I.] 
PSYCHOLOGICAL THEORIES. 
[§ 337 
in morals, to carry out a.metaphor of Chief Justice Gibson, 
would in this view be no more a fault than a squint of the eyes. 
Such a criminal may be prevented from future misconduct; 
but, logically, neither punitive nor reformatory discipline can 
be applied to him; the first because it is unjust, the second be- 
cause it is hopeless.(m) Here, indeed, the representatives of 
the somatic theory practically divide. By some, permanent in- 
carceration—and this solely on preventive grounds—is the only 
penalty to which criminals can be properly subject. By others, 
among whom Mr. Bain is a modified representative, punish- 
ment is vindicated as having a necessary moral effect in re- 
forming the criminal.(n) 
On the other hand, if the psychological theory be correct, 
insanity, by becoming an organic intellectual lesion, is as much 
withdrawn, it may be argued, from the casual power of the 
will as it is on the somatic basis. It cannot be reached by 
penal discipline, for by the very hypothesis on which it is 
framed it rises above the action of the nervous and corporeal 
system. It cannot be reformed by bodily correction; and to 
attempt, therefore, by such correction to reach it would be 
both unjust and nugatory. 
§ 337. The intermediate theory, however, teaches us that 
insanity (with the exception of idiocy and certain hereditary 
and organic types) is (1) in a large measure the result of nerv- 
ous and physical causes, often voluntarily induced, partly by 
the negligence and partly by the misconduct of the patient 
himself; and (2) that in such cases, by being made the subject 
of penal discipline, it may often be prevented or restrained. The 
remaining difficulty is to determine what are the cases to which 
such penal discipline is applicable. And here the analogies of 
the English common law give us a safe test. Where mania- 
a-potu results from drink, the party becomes irresponsible. 
Where, however, he commits a crime in a voluntary drunken 
fit, this drunkenness avails him nothing, unless to relieve him 
from the implication of premeditated malice or complex fraud. 
Thus, when the fatal assault is conceived by a party when 
intoxicated, he is not presumed to act with that premeditation 
(m) See infra, § 348. 
(w) See supra, §§ 146-160. 
333 § 338] 
MENTAL UNSOUNDNESS. 
[book i. 
or that specific intention to take life which is necessary to 
subject him to capital punishment. So it is in insanity. 
Mania, when a permanent disorder of the intellect, by incapa- 
citating the party from reasoning on the particular issue, 
relieves him from criminal responsibility. But a mere “mo- 
nomania,” unaccompanied by intellectual lesion, cannot, for 
penal purposes, be considered else than voluntary passion. It 
may be invoked to lower the grade from murder in the first 
to murder in the second degree, by depriving the intent of 
that coolness and specialty necessary to make up the former 
offence,(n2) but it can never be the basis of an acquittal on the 
ground of irresponsibility. 
B. HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. 
(a1) By whom. 
§ 338. The law with regard to the admissibility both of 
experts and of non-experts, and to the weight to be attached 
to their testimony, has been already stated.(o) It is well to 
keep in mind the suggestions of Hoffbauer in regard to the 
importance of an adaptation, by the inspecting physician, of 
his own method of examination to the character of the subject. 
The uneducated and the refined, the bashful, timid, and retir- 
ing, and the cunning, insolent, and hardened, the eccentric, 
the victim of fixed ideas, and the lunatic, each requires a dif- 
ferent style of treatment. The physician must work into the 
heart of the ignorant man by reference to objects palpable to 
the sense, and must address the man of education in the spirit 
which animates him. He must approach the bashful, the 
timid, and the morose with cordiality and affability, and exer- 
cise practical tact, circumspection, and adroitness in convers- 
ing with the cunning, the hardened, and the insolent, impress- 
ing them with respect for his personal and mental qualifications. 
On the whole, the tone of the subject must regulate the tone 
of the examiner. But, where one style of treatment is found 
of no avail, recourse must be had to the opposite one. Where 
the patient sits immovable as a statue, without answering any 
question addressed him, which often occurs in cases of deeply- 
(n2) See supra, § 200. 
(<?) Supra, §§ 272-300. 
334 BOOK I.] 
PSYCHOLOGICAL THEORIES. 
[§ 340 
seated melancholy, further questions should not be asked, but 
observation alone resorted to.(^) 
§ 339. That a man is of sound mind, will generally be suffi- 
ciently manifest to a prosecuting officer of discretion; but 
whether a man is really or only apparently deranged, is a 
question which cannot be decided with the certainty belonging 
to science except by a physician; nor is it possible, without a 
knowledge of psychological medicine, to pronounce upon the 
influence exercised by specific forms of disease upon given 
actions. 
The legal relation of courts to experts has been already fully 
discussed.^) 
It should not be forgotten, however, that it is of much im- 
portance in the diagnosis of insanity, that the proper legal and 
medical functionaries should act in common. Written explana- 
tions are here of much less value than oral intercourse, where 
a few words will often suffice to remove a difficulty, to correct 
an error, or to supply an omission. In visiting a deranged 
culprit for this purpose, the prosecuting officer should invite 
the physician to accompany him. They then may alternately 
converse with the accused, whereby both the morbid and 
criminal peculiarities of the subject will be clearly unfolded 
to them both. It is well established that a man of unsound 
mind will act very differently, according as he views the 
persons before whom he stands with fear, respect, or confi- 
dence. It is sometimes advisable to invite the physician’s 
attendance at an official hearing, where, under the semblance 
of a mere occasional and unofficial companion, he may make 
a diagnosis the more accurate because unsuspected. 
§ 340. It is not to be denied that a lay observer, or an un- 
assisted judge or jury, may be able to distinguish a case of 
fully developed and clearly manifested insanity; but, aside from 
the necessity of a knowledge of all the particular relations 
existing between a given state of disease and a given act, there 
can be no proper foundation for the infliction of punishment 
(p) J. H. Hoffbauer, Die Psychiscken Krankheiten in Bezug auf die 
Reclitspflege, Berlin, 81. 
(q) Supra, §§ 190-199. 
335 § 342] 
MENTAL UNSOUNDNESS. 
[BOOK I. 
in any case, where the judgment of which it is the execution 
is not based on the greatest attainable amount of certainty- 
But this certainty can be no other than that which bears the 
seal of technical science. In some cases the difference, it is 
true, between a scientific, or technical, opinion, and that of a 
layman, is not so much in the results attained, as in the 
guarantee afforded by the superior attainments and more 
minute expertness of the man of science. Pro foro the latter 
degree of certainty is sufficient, because it is the highest 
attainable; but the same cannot be said of any other.(r) 
The admissibility of non-experts, as a matter of law, is ex- 
amined under a previous head.(s) 
(bl) At what time examinations should be made. 
§ 341. There are three different times in which the conduct 
of the accused may become the subject of a forensico-psycho- 
logical investigation: 1, at the commission of the deed; 2, 
during the trial: and 3, after sentence pronounced. At each 
of these periods, the court has a separate point of view from 
which to regard the state of mind of the defendant, in each 
the purpose of the inquiry is different, and in each the interro- 
gations to be directed to the physician must be modified 
accordingly.^) 
(a2) § 342. In regard to the first point, the issues to be 
met by the physician should be, in general, whether a diseased 
mental state attended the commission of the act, wherein 
the disease consisted, and whether the mental and moral 
functions exercised and implicated in the perpetration were 
of such a nature that either, a, there was no consciousness of 
criminality and no freedom of volition, or, b, the possibility of 
such consciousness and spontaneity was excluded, or, c, both 
the one and the other were incapable of ascertainment and 
must be left in doubt. The practice which has lately grown 
up, of interrogating as to a conclusion of law (e.g., was the 
defendant capable of distinguishing right from wrong, or was 
he a free agent), instead of as to a state of facts (e.g., was he 
(r) Scliiirmayer, § 512. ($) Supra, §§ 272-275. 
(0 See Scliiirmayer, § 516, whose views are here adopted. 
336 BOOK I.] 
EXAMINATION OF PATIENT. 
[§ 344 
laboring under mental disease, and, if so, what), is not only 
false in theory, but pernicious in result. No expert can be 
viewed as satisfactorily performing his office in this respect, 
who neglects to familiarize himself with the patient’s prior 
history.(w) 
(b2) § 343. The second period of time becomes of particular 
interest in our American jurisprudence, from the fact that 
when a party alleged to be insane is put on his trial, if insanity 
be pleaded, the jury are specially sworn to determine the pre- 
liminary issue whether the defendant be insane at the time of 
trial. If the fact be found in his favor, he is confined under 
special sanctions. If otherwise, the trial proceeds on the main 
issue. 
(c2) § 344. The third period of time, at which the state of a 
culprit’s mind is open to medical investigation, is after the 
close of the trial, and before the execution of the sentence. 
A man of unsound mind is incapable of understanding the 
justice of his sentence, or of recognizing a punishment in the 
evil inflicted upon him. In many cases also the evil will 
aggravate his disease. For all these reasons it is necessary to 
be certain that a convict is so far in the possession of all his 
faculties, that the object of the law in subjecting him to 
punishment will be answered. The interrogations to be sub- 
mitted to the physician are to be framed upon this simple 
principle; and it is self-evident that only such derangements 
will here come in question as are clearly manifest, and as 
clearly exclude the possibility of the prisoner’s understanding 
the reason of his punishment. 
It would be a proper regulation to cause every convict, 
before undergoing his punishment, to be examined in body 
and mind by the physician, tor the purpose of ascertaining 
his capacity for the ordeal. Even where the general fitness 
of the subject is undoubted, there are frequently personal 
defects which require attention in the treatment of the prisoner 
during; confinement. In several of the German States this 
precaution is observed, and where a convict is found to be 
insane, he must be subjected to the proper treatment. If 
(u) See infra, § 391. 
vol. i.—22 
337 § 345] 
MENTAL UNSOUNDNESS. 
[book i. 
a cure is effected, the question whether he is now able to 
sustain the punishment without danger of relapse or other 
injury, is to be decided by the forensic physician, upon a 
careful investigation of all the symptoms and attendant cir- 
cumstances. 
(c1) By what tests. 
(a2) Physiognomy, (v) 
§ 345. The general questions in relation to feigned insanity 
are noticed under a subsequent head.(w) 
“Close attention,” says Schiirmayer,(:c) “should he first di- 
rected to the entire exterior of the subject, his posture, his 
motions, his gestures, his eye, his words, his intonation, and, 
above all, the first impression produced upon his mind by 
the appearance of the physician. What most distinctly cha- 
racterizes a mental disease, and is never misunderstood by a 
skilful physician, is the physiognomy of such a patient. The 
eye of a madman is the mirror of his soul. He lacks the 
calm unobstructed gaze peculiar to the sane, untouched by 
passion or excitement.” “ Look,” says Ideinroth,(y) “upon the 
cunning leer of a lunatic, the savage glare of a maniac, the 
lack-lustre eyes of a splenetic, or the meaningless stare of an 
imbecile; such things cannot be counterfeited.”^) 
The form of the skull is often peculiar in every description 
of mental disease, but is particularly noticeable in the case of 
cretins and natural fools. 
(®) See infra, § 450. The features of the face, says Falret, change 
at each instant or constantly preserve the same expression; the lips, the 
cheeks, the nostrils, the eyebrows, the eyelids, frequently show convulsive 
movement; it is the same with regard to the muscles of the eye, and, under 
the influence of these convulsions, the look is troubled, bewildered, and 
unsteady. Lemons Cliniques sur 1’Alienation Mentale, M. Falret, liuitieme 
le$on, p. 219. Paris, 1854 ; see also Orfila, Med. Leg. i. p. 379. Paris, 1848. 
(w) Infra, §§ 443-460. (x) Gerichtliche Medicin, § 529. 
(y) System der gericlitlich psychisclien Medizin, p. 343. See article by 
Dr. Laurent, translated in 20 Am. Journ. of Ins. 216. 
(2) Drawings, very well executed, are to be found in Morrison’s Outlines 
of Mental Diseases, London, 1829, and in Esquirol, Des Maladies Mentales, 
Paris, 1838. 
338 BOOK I.] 
PHYSICAL TESTS. 
339 
§ 346. The expressions of the eye(z1) and of the nose(a) have 
been very capably exhibited by two eminent physiognomists. 
The latter feature has been examined with peculiar ability by 
Hoefling.(6) “ In the apparently joyous countenance of a laugh- 
ing madman,” he tells us, “ the upward traction of the sides 
of the nose, nevertheless, indicate unmistakably the presence 
of pain, and this expresses much of the physiognomic peculi- 
arity of such unfortunates.(c) In like manner the simple un- 
meaning smile of imbecility is marked by the form and shape 
of the nose, which, with its downward, circular openings, and 
the tension of the skin on the peak, expresses a torpor, while 
in the laugh of a sane man the nostrils contract, and become 
elongated, without a departure of the septum from its hori- 
zontal position.” The mouth of the simpleton twitches with 
a constant unmeaning smile, accompanied with a low, inar- 
ticulate and thoughtless mumble, and the imbecile is almost 
always found, sitting or standing, with parted lips.(df) “ With 
many,” says Schurmayer, “ the mouth is constantly in motion, 
as if they were talking to themselves. In the paroxysms of 
mania there is a convulsive distortion or contraction of the 
mouth. Receptivity for certain external impression is gene- 
rally low, particularly in the case of impressions accompanied 
with pain,(e) of cold, heat, and certain medicines.” 
(s1) Loebels, Grundriss der Semiologie des Auges. Jena, 1817, p. 27. 
(a) Hoefling, in Casper’s Wochensclirift, 1834. (5) Ibid. 
(c) “ To represent tbe prevailing character and physiognomy of a madman, 
the body should be strong and the muscles rigid and distinct, the skin bound, 
the features sharp, the eye sunk; the color of a dark brownish-yellow tinc- 
tured with sallowness, without one spot of enlivening carnation; the hair 
sooty black, stiff, and bushy, or of a pale, sickly yellow, with wiry hair.”— 
Anatomy of Expression. Sir Charles Bell, London, 1844. 
“His burning eye, whom bloody strokes did stain, 
Stared full wide and threw forth sparks of fire ; 
And more for rank despight than for great pain, 
Shaked his long looks, colored like copper wire, 
And bit his tawny beard to show his raging ire.” 
Faery Queen, Book ii., canto 4, v. 15. 
(d) Danz, Allgemeine Medizinische Zeichenlehre. Heinroth’s edition. 
Leipsic, 1812, p. 353. 
(e) Compare Friedreich, Handbuch der Allgemeine’s Pathologie der psy- 
chischen Krankheiten. Erlangen, 1839, p. 121. 
339 340 
MENTAL UNSOUNDNESS. 
[book I. 
§ 346a. “ The condition and color of the skin,” says Dr. 
Laurent, “have great value in the eyes of the alienist physi- 
cian. I think it right expressly to insist on the symptoms 
furnished by this organ. I have noticed some very curious 
morbid phenomena. Professor Trousseau has specified in his 
clinical lectures some very important peculiarities in the func- 
tions of the skin manifesting themselves during head affec- 
tions. After the example of this learned man, I must insist 
on this point. Color furnishes signs well worthy atten- 
tion. The skin of the face—and it is of this part alone I 
speak—may be dry and arid, the seat of herpetic scurvy and 
scaly eruptions, or may be moist with perspiration, or a liquid 
secretion of a more or less oily nature and of variable odor. 
Its color is susceptible of numerous general or partial modifi- 
cations. It may be pale. This pallor has divers shades, from 
pure white to the slightly yellow tinge (compared to that of 
straw or wax), or earthy brown, and bronzed. It may be of 
every shade of red, from rosy to vermilion, violet, and purple. 
But season and exposure to the sun’s rays should always be 
taken into consideration. The skin may have a greater or less 
tonicity, and the subcutaneous, subcellular tissue be more or 
less elastic. It also is marked by lines and furrows, which are 
of importance as indicating the amount of activity of the sub- 
jacent muscles. At first, during infancy and adolescence, few 
in number, their formation becomes fecund in proportion as 
age advances, which must be attributed to the thinning of the 
face or the loss of the mobile parts by age, sickness, passion, 
and deep emotion of the soul. I think it unnecessary to de- 
scribe these furrows, which may assume different forms—hori- 
zontal, vertical, oblique, sinuous, and more or less close or 
parallel. 
“ The organ of sight offers for consideration its form, move- 
ments, and expression. The eyes may be more or less promi- 
nent or depressed in the orbit; the aperture between the lids 
smaller or greater; the sclerotic, very apparent around the 
pupil, exhibits a variable bluish, yellowish, or red tinge; 
the dilatation of the vessels very evident. Little livid or 
black veins may be perceived on it. The conjunctival surface 
may be dry, humid, or moistened with tears; the pupils may 
340 BOOK i.] 
PHYSICAL TESTS. 
341 
be deformed by being equally or unequally dilated or con- 
tracted. Strabismus may be observed; a distortion of the 
eyes by which they look crosswise, either above, below, or to 
the side, twisting even during sleep. In the no'rmal state the 
ocular globe is susceptible, under the influence of the will, of 
numberless motions in every sense, and these motions may 
have a longer or shorter duration; but in the morbid state, 
and without their owner’s control, a sort of trembling, oscilla- 
tion, or vacillation of the globe may be manifested, a kind of 
continual or permanent convulsion, in consequence of which, 
most frequently, little lateral, sometimes, though rarely, up 
and down, movements are given to the globe of the eye. 
“ The expression of the eye calls for special attention. The 
eyes are sometimes lively and brilliant, sometimes sad and 
glazed. Often they have a soft, dreaming look, expressive of 
vacuity, uncertainty, or nonchalant calmness; at other times 
they become animated from the slightest cause, have a light- 
ning glance, are haggard, insolent, full of audacity, fixed, and 
inquisitive. Each of these expressions has a different inten- 
sity and duration, and responds to very different situations. 
“ In accordance with the protrusion or sinking of the globe 
of the eye, the eyelids take shape—they are swollen or cede- 
matous; have at times a very pallid color, at others become 
red or blue; and exhibit wrinkles of diverse shape and in va- 
riable number. They may likewise be agitated by convulsion, 
or show a very significant immobility. Each lid may differ 
in the length and abundance of its lashes; the ciliary margin 
may be the seat of inflammation due to nervous excitation. 
Occasionally the eyebrows are of fantastic shape. Sometimes 
little noticeable, sometimes strongly marked, they stand up on 
the forehead, or fall back on the eyes, curling after the style 
of moustaches. The shape of the nose has a pathological sig- 
nification which should not be passed over in silence. Besides 
the color and swelling or thinness of the fleshy parts of the 
proboscis, a careful examination should be made of the more 
or less easy dilatation of the nostrils, their mobility or fixed- 
ness, the tension or the retraction of their walls. Dr. Hoefling 
attaches much more importance to the signs furnished by the 
nose than to those given by the eye. The mouth presents for 
341 § 347] 
[book 
MENTAL UNSOUNDNESS. 
examination the state of the lips, with their relative situation 
during repose, their volume, color, dryness, or humidity. The 
motion of the mouth has a very important signification, and 
leads to a notable modification of the commissure of the lips. 
Permanent contractions, alternations of tension or relaxation, 
partial or general tremor, the diverse forms of spasm, deserve 
much attention. These manifestations have a very decided 
meaning. 
“ What we have just said relative to the motion of the 
mouth and lips is applicable to all the locomotive system of 
the face. Tension or relaxation, continual or alternate move- 
ments, immobility, may appear in various grades in each of the 
facial muscles. To facial symptomatology must be added also 
an examination of the parotid and auricular regions. We 
should carefully note the pallor, redness, and swelling of the 
cheeks, the color, swelling, mobility, or immobility of the ears, 
as well as the appearance of sanguineous tumors of the auricle. 
“Dr. Morel attaches much importance to the way in which 
the ears are fixed, and makes this one of the characteristic 
signs of his types of degeneracy. 
“ It is of some importance to let this physiognomical survey 
embrace the carriage of the head, which is often noticed to be 
variable, according as the individual has a more or less favor- 
able opinion of his personality, and from numerous other 
causes.”^1) 
(b2) Physical conditions. 
§ 347. Somatic conditions, as has been seen,(/) though not 
necessary to prove insanity, as insanity may exist when the 
bodily functions are in undisturbed health, are often important 
tests of an insane state, and the more so because they cannot 
be readily feigned. Among these conditions may be again 
enumerated disturbances of the motor spheres, of the vegeta- 
tive organs, of sleep, of the pulse, and the peculiar condition 
of the evacuations, e. g. increased phosphate in the urine. 
Sleeplessness is a condition which it is peculiarly difficult to 
simulate. 
(e1) Am. Jouru. of Ins., October, 1863. (/) Supra, § 329. 
342 BOOK I.] 
PHYSICAL TESTS. 
343 
(a3) Injuries to brain. 
§ 348. Science, says Dr. Liman,(g) whose judicious observa- 
tions have already been frequently cited, teaches that mental 
disease is not an abstract entity, but is conditioned by brainu- 
lar and nervous disease, by which psychical functional dis- 
turbances are generated which are subordinated to the laws of 
the physical disorder. The brain may be idiopathically dis- 
eased, or the affection may be sympathetic. Under favoring 
circumstances, this sympathetic brainular action may be pro- 
duced by every form of disease (e. y., typhus, cholera, exanthe- 
matic fever, pneumonia, erysipelas, acute rheumatism, abdomi- 
nal and genital diseases, heart disease, tubercular affections) as 
well as by those physiological causes which are generally spe- 
cified in the books, viz., puberty, the menses, pregnancy, de- 
livery, lactation, involution, old age, and by psychical causes, 
such as passion, mental shocks, etc. Experience, however, 
teaches that nervous diseases, superinduced on a favoring psy- 
chopathical disposition, not only are of peculiar moment in 
inducing mental disorder, but form a basis of experience on 
which rests the classification of psychical disease. 
But it is nevertheless important to recollect that while these 
physical and nervous disorders serve to explain the nature and 
strengthen the proof of insanity otherwise substantively proved, 
they do not as a necessary sequence prove insanity, and fre- 
quently exist without it. To this it may be added that this 
doctrine of necessary sequence in such cases is fraught with 
several deleterious results. First, its acceptance would be 
cruel to the persons laboring with the physical and nervous 
complaints in question, for, if not leading to their sequestration 
from society as persons non compos mentis, it would deprive 
them of the power of business self-support. Uo one could 
enter into contracts with them: no one could take business 
paper executed by them: no one could treat them as vested 
even with that testamentary power which, as has already been 
seen, forms one of the few means of insuring respect retained 
by the aged and forlorn. And, secondly, such persons would 
(fir) Liman’s Casper, Berlin, 1871, p. 434. 
343 § 350] 
MENTAL UNSOUNDNESS. 
[book i. 
form a dangerous aristocracy, exempt from the operation of 
penal laws. Insanity being a material and necessary result of 
disease, if diseased, they would not be penally responsible for 
crime.(A) 
§ 349. Brain disease often displays itself in moral and mental 
transitions which are not only conspicuous and startling but 
comparatively rapid and complete. Sometimes, however, the 
causes work more slowly. There is no immediate and complete 
revolution of character; but there is a gradual protrusion of 
some specific peculiarities and depression of others. The first 
change may be .likened to a great terrestrial catastrophe, a 
cataclysm by which the whole face of nature is changed: the 
second to the process of transformation produced by the 
gradual rising of the sea, by which valleys are filled up and 
mountains depressed. Sometimes the process of transforma- 
tion, in the second case, is very slow, and yet nevertheless is 
distinctly traceable to physical causes. “The patient,” says 
Ivrafft-Ebing (1872),(i) a very high authority in psychological 
medicine, “ becomes (after injuries or shocks to the brain) ex- 
citable, violent, brutal, quarrelsome, prone to excesses in Baceho 
et venere, and approaches to the ideal of a maniacal moral 
insanity. By many, particularly in those in whom delirium 
subsequently breaks out, a qualified maniacal exaltation shows 
itself in the form of unsteadiness, of passion for travel, of in- 
clination to a vagabond life. These are generally the antece- 
dents of mania, which begin the process of psychical anomalies; 
more rarely, but especially in those cases which terminate in 
paralysis, the prodromal symptoms consist in brainular ex- 
haustion, and express themselves progressively in weakness of 
memory, dulness, apathy, decrease of self-determining power.” 
§ 350. The psychical effects, however, as has been just noticed, 
may be very slow. Years may elapse from the time of the 
injury before the shock displays its psychical consequences. 
Griesinger throws out several very interesting hypotheses as 
to the slow processes by which a little apoplectic cyst, or an 
ulcer, may work into the soft substances of the brain, until 
(A) See supra, § 336. 
(0 Uber die Geliirn-Erschutterung, etc., Erlangen, 1868. 
344 BOOK I.] 
PHYSICAL TESTS. 
[§ 351 
suddenly occurs insanity or death. Yet there is great rea- 
son for caution when adducing such prior stages as confirma- 
tory of insanity. Often, when insanity is sought to be proved, 
a scar on the head is put in evidence. Yet the cases are num- 
berless in which, particularly in infancy, injuries to the skull 
have been sustained, and even severe wounds inflicted, without 
the mind being subsequently disabled. 
§ 351. “The element of time,” says Dr. Laycock (1871), 
“ is a very important point in the diagnosis and prognosis of 
this class of cases. The progressive degeneration may extend 
over several years. 
“In July, 1868,1 saw a captain in the Royal Navy, who, 
fifteen years before, when a midshipman, fell about eight feet 
as he was descending Table Mountain, Cape of Good Hope. 
He received a scalp wound, which bled freely, and he thought 
he must have been made unconscious. The surgeon of his 
ship examined, but found no fracture, and dressed the wound, 
which healed well. I found an extensive scar on the scalp, 
over the curve of the left parietal region, and the surface 
slightly depressed. This had led some to propose trephining. 
Twelve years after the injury he married, and shortly after 
had habitual headaches, with mental depression, increasing 
until he became melancholic. Rest from active duty restored 
him to comparative health of both body and mind, but his 
manner continued peculiar. He, however, resumed charge of 
a ship, and so got involved in harassing and anxious night- 
duties off the Irish coast, watching the Fenians. This exhaust- 
ing work induced a series of neuroses of the encephalon, 
which were progressively intensified into structural disease, 
until (when I saw him) he was weak of mind, incapable of 
movement, passed urine and feces involuntarily, and had great 
difficulty of articulation, as well as an incapacity to express 
his ideas by appropriate words, although he easily smiled and 
laughed. Early in November of the following year he had 
successive fits of convulsions, became unconscious, and so died, 
sixteen years after the injury to the scalp.” 
345 346 
[book i. 
MENTAL UNSOUNDNESS. 
(63) Anomalies of sensibility, of pulse, of secretions, and of senses. 
§ 352. Under the present head, it is proper to notice the im- 
portance of the attention of the medical examiner being turned 
to temperament, disposition, and age; in the case of females, 
to the development of the functions of menstruation, preg- 
nancy, delivery, suckling ;(k) to mental characteristics, powers, 
and habits; to the condition in life and profession; to the 
questions of rest and exercise, sleep and watching; to excessive 
evacuations, particularly if connected with sexual gratifica- 
tions; to sexual abstinence; to bodily injuries, beside those of 
the head, such as diseases of the heart, haemorrhoids, obstruc- 
tions of the abdomen, and to cutaneous diseases. 
§ 353. “ Symptoms of bodily disease ascertained by the state 
of the pulse, the digestion, the secretions, etc., cannot natu- 
rally, in any case, be taken as proofs of mental disease; the 
diagnosis depends essentially and exclusively on the mental 
symptoms. Nevertheless, those symptoms of diseases in other 
parts may be of great value. From them we are enabled to 
answer the question, Is the individual in a state of general 
ill-health ? If, from these symptoms, this can be said with cer- 
tainty—if, on the one hand, a striking mental change is ob- 
served, or very suspicious behavior, and, on the other, a general 
morbid state of the organism be present—it becomes highly 
probable that both series of phenomena are related to each 
other, that is, that the mental change is itself morbid. As, 
however, insanity depends essentially on an affection of the 
brain, there are none of all the psychical symptoms, not in the 
narrow sense, of greater significance than certain phenomena 
of disturbed (irritated, depressed, etc.) cerebral function. 
“Therefore anomalies of the central sensorial function, hal- 
lucinations, etc., are of such extraordinary value, and violent 
headaches, sleeplessness, fainting, anaesthesia, changes in the 
pupils, all concomitant convulsions, and paratyses, are also of 
such great importance, in the diagnosis of insanity. 
“If these symptoms can be traced to an affection of the 
(k) On this point Dr. Storer’s treatise on “Insanity in Women” will be 
found of much value. 
346 BOOK I.] 
PHYSICAL TESTS. 
[§ 354 
brain, and if we can, by these, prove that at all events a cere- 
bral affection is present, it is clear that in few cases we can 
doubt that the suspected psychical symptoms depend also upon 
the cerebral affection; at least the opposite can seldom or never 
be shown. On the other hand, the non-appearance of such 
further symptoms, and the absence of all physical disorder (of 
the pulse, digestion, etc.), can never be taken as proof of the 
absence of a mental disease (that is, a cerebral affection of 
which the actual symptoms are exclusively psychical); we fre- 
quently meet with cases of undoubted mental disease, especially 
chronic cases, in which the bodily functions remain unim- 
paired.”^) 
§ 354. IIow far insanity is sometimes accompanied with physi- 
cal disorganization, is illustrated by a case mentioned by Wigan 
in his remarkable work on the quality of the mind.(m) “ The 
gentleman held a situation in which he had many younger 
persons under him. I purposely leave the designation obscure. 
He had risen to the head of the office by long and exemplary 
services. He was a widower, and had a considerable family, 
all of whom, however, died in their youth. He exercised a 
parental control over his subordinates, and was extremely res- 
pected by every one who knew him. His salary was ample, 
his excessive benevolence had, however, always kept him poor, 
but, as his style of living did not imply the expenditure of 
more than half his income, he had the reputation of wealth. 
Gradually, towards the age of sixty, this gentleman became 
garrulous and light in his conversation, and the others in the 
office suspected him to have been drinking. He had many 
rebuffs from the persons under his command, but this in no 
degree changed the indecorous levity of his conversation, which 
had formerly been remarkably dignified, and as reserved as 
was compatible with his excessive benevolence of disposition. 
Months and months passed on, his language became gradually 
worse, and at last was of the most depraved obscenity. This 
shocked and disgusted his juniors, and he was seriously 
threatened with exposure by them. The propensity was 
ft) Greisinger’s Mental Pathol., Syden. ed. (1867) § 73. 
(m) A New View of Insanity, etc., by A. L. Wigan. London, 1844, p. 81. 
347 § 355] 
MENTAL UNSOUNDNESS. 
[book i. 
checked for a while, but, after repeated offences and repeated 
forgiveness .by the young men, they made a formal complaint 
to his superiors. The offender was taken to task very seriously, 
but, as the young men had given rather a lenient representa- 
tion of his conduct, he was permitted one more trial, with the 
assurance that his next offence would be followed by dismissal. 
There was soon an opportunity of putting the threat in force, 
for his conduct and conversation became more and more gross 
and disgusting. He was dismissed. Having made no pro- 
vision, he suddenly found himself utterly destitute, but did 
not make known his position. He packed a bundle of neces- 
sary clothes, put in his pocket whatever money and trinkets he 
possessed, and wandered about the country without aim or 
object. Every one lost sight of him for two or three months, 
when he was found in a remote part of the kingdom literally 
dead on a dunghill, where it is supposed he had laid himself 
down for warmth; his money was gone, and, from the state of 
the stomach and intestines, it is probable that he had died of 
want of food as the immediate cause, but, on examining the 
interior of the skull, there was found extensive softening and 
disorganization of the left cerebrum, and the other was not 
free from disease. He could not have lived long; though, 
under proper care, the disease would not have been immediately 
fatal. ”(n) 
§ 355. A diminution of sensibility, says M. Falret,(o) is not 
of common occurrence in mental diseases, its exaltation being 
much more frequent. It is proper, however, to state that de- 
ranged persons are generally as sensible of temperature and 
impressions as persons ordinarily are. Lesions of the sensi- 
bility, however, are observable in all kinds of insanity, and 
especially in those cases in which mystical ideas are predomi- 
nant, in demonomania and paralytic insanity. General insen- 
(to) Generally, of all tlie causes of mental alienation, the most frequent, 
without doubt, are cerebral affections or some alteration of the encephalic 
organ, and perhaps we should agree with Haslam in saying, that the primitive 
cause of mental derangement is always to be found in these alterations.—J. 
Briand, Med. Leg., p. 544. Paris, 1852. 
(o) Leqons Cliniques de l’Alienation Mentale, par M. Falret. Septiftne 
e<jon, p. 185, Paris, 1854. 
348 BOOK I.] 
PHYSICAL TESTS. 
[§ 357 
sibility has been known to take away from some madmen the 
sense of their own existence. M. de Foville cites the example 
of a man who thought he had died at the battle of Austerlitz, 
at which he received a severe wound. His insanity consisted 
in his inability to recognize and feel his own body. When any 
one inquired after his health, it was customary for him to 
reply, “You ask me how father Lambert is, but father Lam- 
bert is no more; he was killed by a bullet at Austerlitz. That 
which you see here is not him, but a machine which they have 
made to resemble him, and which is very badly made, so try 
and make another.” Never, in speaking of himself, did he say 
“ me” (moi), but “ that” (cela). This man fell several times 
into a complete state of immobility and insensibility, which 
lasted several days. Sinapisms and blisters applied to guard 
against these accidents never produced the least symptom of 
pain. He often refused to eat, saying, “ 9a n’avait point de 
ventre.” 
Esquirol was unable to discover any sign of pain in passing 
a pin through the skin of the arm of a demonomaniac, who 
asserted that he no longer felt anything, and who imagined 
that his body had been carried away by the devil. 
§ 356. “ Diminution or complete suppression of the sensi- 
bility of the skin to impressions of temperature and of pain is 
by no means frequent, still less is it general in insanity. We 
find, on the contrary, in some instances an excess of sensibility 
to pain (Esquirol relates such a case), and it is remarked that 
in asylums in winter the patients, with very few exceptions, 
constantly seek the warmth. Nevertheless, cases of transient 
and persistent cutaneous anaesthesia (as already shown in the 
foregoing), and of analgesia, are sometimes seen, particularly 
in states of melancholia and dementia, and, confined to 
more local limits, it is also frequent in hysteria. A careful 
investigation of the cutaneous sensibility in the various parts 
of the body should always be made.”Q?) 
§ 357. “ Rochoux (sitting of the Academie de Mddecine, 22d 
December, 1840), communicated a case of accident which oc- 
curred through want of sensation in the patient. A patient 
(p) Greisinger’s Mental Pathol., Syden. ed. (1867), § 50. 
349 § 358] 
MENTAL UNSOUNDNESS. 
[book r. 
in Bicetre, while no one was in the room, laid his head on the 
red-hot iron of the stove, and put his arm into the midst of the 
fire. The strong smell first drew the people near; the patient 
was quite unconcerned, and throughout gave no sign of pain, 
though the arm was burned to the bone. 
“ In the ‘ Zeitschrift fur there is an example 
of voluntary self-burning by a melancholic patient. He was 
quite happy, although legs, thigh, and nates were burned, so 
that even the bones were charred. 
“ A patient in Bedlam, mentioned by Morison, laid the back 
of his head upon the fire till the quarter part of the cerebral 
coverings were burned ; he, however, recovered. 
“ Michea (r) cites a number of cases in which melancholics 
suffered mutilation without pain (analgesia), and it is interesting 
that this state often exists also in delirium traumaticum 
(nervosum), so that the patients tear off the bandages, and use 
most regardlessly the broken limbs (Dupuytren, Klose). 
“Snell,(s) in 180 patients, found the skin quite anaesthetic in 
18 (?), and in 6 there was analgesia; the anaesthesia in states 
of excitation and depression was present always in cases pre- 
senting little hope of recovery. A very remarkable case is 
communicated by Renaudin,(i) of a boy who had hitherto con- 
ducted himself perfectly well, and all at once exhibited the 
worst desires and most reprehensible behavior. He was not 
entirely insane, but the whole cutaneous surface became sensa- 
tionless. This state was intermittent and when it went oft" the 
patient became again quite orderly and obedient. Simulta- 
neously with the anaesthesia the worst desires, even desire to 
murder, returned. In general paralysis, too, there is some- 
times present an evident diminution of the cutaneous sensi- 
bility. Diminution of the sense of smell may be assumed in 
those patients who would amuse themselves with their excre- 
ments. All these anaesthesia must have a central basis.”(w) 
§ 358. In regard to anomalies of general sensibility asso- 
ciated with no illusion, there are madmen who appear insen- 
(<?) 11, 1854, p. 717. (r) Gaz. Hebdom., 1856. 
(s) Zeitschrift fur Psycliiatrie, 10, 1853, p. 213. 
(<) Moreau, Psyckologie Morb. p. 312. («) Griesinger, ut supra. 
350 BOOK I.] 
PHYSICAL TESTS. 
[§ 358a 
sible to the ordinary causes of pain. Esquirol speaks of an 
idiot girl who was in the habit scratching a lump she had upon 
her cheek, and did not stop until she had perforated it, and, 
after having performed this perforation, she enlarged the wound 
by continually pulling at it with her finger. Deranged per- 
sons often cut themselves in different parts of the body without 
appearing to suffer. But the greatest phenomenon of insensi- 
bility is the indifference with which persons afflicted with 
insanity support cold. They have been known to expose them- 
selves in the open air, to sleep upon the ground, flagstones, and 
the floor, when the ice and snow caused persons warmly clad 
to shiver. And imprudences like these appear to have a less 
dangerous influence upon the insane than upon others. This 
fact, however, has been much exaggerated, and in many 
instances the ordinary effects produced by cold are observable 
in the deranged. These unfortunates are so exposed to freezing, 
that in many establishments there is an express law to visit, 
morning and evening, and wrap in flannel the feet of those 
whose condition causes these dangerous consequences to be 
dreaded.^) 
§ 358a. Hunger and thirst are usually intense, digestion 
varies, while the bowels are almost invariably obstructed. 
The skin is usually dry, rough, and inactive. The presence of 
almost all persons of unsound mind is distinguished by a pecu- 
liar specific smell.(w;) Some show themselves equally indiffer- 
ent to heat. There are those who walk and sleep entirely naked 
in the sun upon the hottest days, and who can look fixedly 
for a long time upon this planet without being dazzled by it. 
The genital functions are ordinarily preserved by the insane; 
sometimes, indeed, their activity is increased, although the 
mental disease may not be of erotic origin. This super-exci- 
(®) “ Dans le plus liaut degre de la manie les malades oublient leurs besoins, 
et sentent a peine, ou pas du tout, la douleur, lefroid et le chaud.” Manuel 
de Med. Leg. M. Orfila, tome i. p. 377. Dr. Rush makes insensibility to the 
weather, particularly cold, a marked test. 
O) Compare Hill’s Essay on the Prevention and Cure of Insanity. Lon- 
don, 1814, p. 401. Erhard in Wagner’s “Beitragen zur Philosophischen 
Anthropologie,” vol. i. Vienna, 1794, p. 111. Milling’s Mentis Alienationum 
Semiologica Somatica, Bonn, 1828, § 15. Burrow’s Commentaries, p. 297. 
351 § 359] 
MENTAL UNSOUNDNESS. 
[book i. 
tation of the genital organs, independent of physical or moral 
erotomania, is particularly observable in agitated delirium; 
whilst in despondent delirium they are inactive, at least if it 
have not love for a cause or object. The cases are rare, how- 
ever, where the sexual organs are attacked with insensibility 
or impotence, except in general paralysis. The aptitude of 
man and woman for the venereal act and for fecundation is 
not lost; only in insanity as in sound mind, the rapid succes- 
sion of ideas, the violence or tenacity of pre-occupations for- 
eign to amorous desires are capable of bringing on an inactivity 
of the genital functions. 
§ 359. The 'pulse forms no test.(:r) M. Jacobi has instituted 
experiments, in a large number of cases of the different forms 
of mental unsoundness, indicating at the same time the rela- 
tive pulsations of the several arteries, auscultating the heart, 
and counting the uumber of inspirations and expirations. The 
attempt to deduce a fixed rule, however, was in vain. “ I had 
the vexation,” he tells us, “ to see that my researches, so con- 
scientiously made, did not fulfil the end I had proposed; 
and I saw that it was impossible to establish the necessary 
connection between the different pathological states of the 
intellect and feelings, and the observations I had collected on 
the state of the circulation, the respiration, and the tempera- 
ture of the skin, in the insane.’’(y) 
The secretions, and particularly the perspiration, are imper- 
fectly performed in the majority of insane cases. In these 
cases there is a dry skin of an unhealthy color, and the exha- 
lation of a disagreeable smell. They do not grow thin, but 
even become fat, although eating little, because they perspire 
badly. They urinate a great deal, and the passage of urine is 
frequent, as is common in all nervous disorders. Constipation 
is an almost habitual attendant of the disease. 
Without being oppressed, the respiration in the insane is 
sometimes unequal, hurried, diminished, interrupted, and sob- 
bing. Their breath is often fetid, and this accidental fetidity, 
an ordinary symptom of all nervous diseases, frequently an- 
(*) See article 26 Am. Journ. of Ins. 324. 
(y) Jacobi, Annales Medico-Psychologiques. 
352 BOOK I.] 
PHYSICAL TESTS. 
[§ 360 
nounees the approach of an attack of melancholy, mania, or 
hysteria.(z) 
§ 360. The most interesting symptoms are found in the 
various abnormities of the sensorial system, as manifested in 
the excitement, depression, or delirium of one or the other of 
the senses. An excitement or depression of the sensorial sys- 
tem generally keeps even pace with the mental malady. Be- 
fore the mental disease breaks out, and while its advent is 
indicated by mental and moral excitements, an enhanced ex- 
citability in the sensorial system becomes perceptible, which, 
however, where psychical energies are gradually exhausted by 
the recurrence and violence of the paroxysms, frequently turns 
to an opposite condition, so that the failing, obtuseness, or loss 
of one of the senses attends the subsequent progress of the evil. 
According to Spurzheim,(u) the ear is the sense, which, of all 
others, sutlers most among the insane, and there are more deaf 
than blind among them. The deliria of the senses, which are 
either illusions, or hallucinations, are found in every form of 
the disease; they sometimes attack one sense only, sometimes 
several, and sometimes, though rarely, all the senses at onee.(b) 
Esquirol gives it as the result of his experience(c) that when 
the alienation of the mind begins, and sometimes a little earlier, 
smell and taste have changed, but the deceptions of the ear 
and the eye generally characterize the fancies of most madmen. 
The deliria of smell are less frequent than those of the other 
senses, those of taste are of the most various kind, and those 
of touch impress the patients with the existence of attributes 
in bodies other than those which they possess. These deliria 
(2) Leqons Cliniques de l’Alienation Mentale, par M. Falret. Septieme 
p. 185. Paris, 1854. 
(a) Beobacbtungen ueber den Wahnsinn. Nach dem Engliscben und 
Franzoesisclien bearbeitet von Embden, p. 81. See Med.. Leg., M. Orfila, 
tome i. p. 358. Paris, 1841. Med. Leg., Briand, p. 540. Paris, 1852. 
(5) For a full account of the illusions and hallucinations of the senses we 
would refer the reader to the Lemons Cliniques sur 1’Alienation Mentale de 
M. Falret. 3d, 4th, 5tli, 16tli lessons. Paris, 1854. Also to the Etudes 
Medico-Psycliologiques sur l’Alienation Mentale, par F. E. Renaudin. Chap. 
8tli, p. 388. Paris, 1854. 
(c) Compare Hagan Die Sinnetauscliungen in Bezugauf Psycliologie 
Heilkunde, und Rechtspflege. Leipsic, 1837. 
YOL. I.—23 
353 354 
MENTAL UNSOUNDNESS. 
[book i. 
frequently give rise to fixed ideas; particular postures, various 
attitudes and motions, are observed in almost all madmen. 
§ 361. A change of moral disposition, as will presently be 
seen,(rf) is one of the first symptoms, other than physical, with 
which the disease usually makes its appearance. Extreme irri- 
tability, proneness to anger, suspicion, concealment, obstinacy, 
and perverseness, are common. In regard to the affections, 
various abnormal impulses and inclinations are observed: such 
as fondness or aversion to particular persons, without any 
special reason ; disposition to exercise cruelty, murderous de- 
sires, a wish to commit arson, or to steal.(e) Memory is gene- 
rally good in reference to things occurring during the disease, 
or to persons with whom the patient was then connected, but 
defective or mistaken as to things which occurred previously.(/) 
Of the intellectual faculties not all are uniformly in an abnor- 
mal state; on the contrary, some functions occasionally im- 
prove, thus producing a complex state of madness on the one 
hand, and of wit, reflection, and shrewdness, on the other.(y) 
(c2) Hereditary tendency. 
§ 362. By Morel, in his Traite des Maladies Mentales, pub- 
lished in Paris in 1866, the line of descent in cases of heredi- 
tary insanity (Jolie hereditaire) has been traced with peculiar 
delicacy and fulness. The stream is shown sometimes to 
change its channel, sometimes to swell as it descends—viresque 
acquiret eundo. In the parent it exhibits itself in the form of 
(a3) Psychologically. 
(d) Infra, §§ 390-398. 
(e) See infra, §§ 391-398. “A deranged person,” says Orfila, “regards 
with indifference tlie dearest objects of bis affections, he thinks no more of 
them or holds them in such aversion as to repel, injure, and maltreat them. 
Hatred, jealousy, anger, wickedness, fear, terror, a disgust for life, a desire 
to destroy and kill, replace the most equal, calm, and softest nature. ”—Manuel 
de Med. Leg. M. Orfila. Tome i. p. 382. Paris, 1848. 
(/) A great many remember things which occur ; and after their recovery 
they often astonish by remarks which they had made at a time when they 
seemed most completely deprived of their reason.—Med. Leg. J. Briand, p. 
540. Paris, 1852. See infra, § 410. 
(g) See cases collected by Friedreich, Handbuch der allgemeinen Patholo- 
gic, p. 189. See infra, §§ 378-385 ; 406-409. 
354 BOOK I.J 
HEREDITARY TENDENCY. 
[§ 363 
extreme nervous sensibility and excitability. The child is the 
victim of hallucinations, if not of mania. In remoter de- 
scendants are exhibited imbecility, cretinism, united with 
physical degeneracy. No doubt cases are found where a law 
of deterioration such as this is seen progressing with apparent 
certainty in its downward path. But, like all other cases of 
assumed psychical law, the theory breaks down when we attempt 
to establish it as a universal rule. Lord Chatham was at cer- 
tain periods of his life hypochondriac if not insane; yet his 
son William Pitt was remarkable for his intellectual equipoise 
and exactness. Of the prolific family of George III. no one in- 
herited his insanity. Innumerable cases of nervous excita- 
bility and eccentricity present themselves to us when we take 
up such works as Walpole’s Correspondence, or when we look 
back“even at those who were the parents of our own contem- 
poraries ; yet rarely indeed do we find instances of the develop- 
ment of such excitability and eccentricity, from generation to 
generation, into lunacy and idiocy. Yet, at the same time, 
of a large proportion of lunatics, as is elsewhere stated, the 
immediate ancestors were affected with some phase of mental 
disease. 
§ 363. Of the hereditary insanity—-folie hereditaire—which 
is thus assumed, Morel gives the following symptoms: Early 
or disproportionate intellectual activity accompanied by de- 
ficiency in higher moral power—the early development of 
instinctive impulses,—tendency to cruelties—irritability, bi- 
zarre wdiims, fanciful caprices, and business heedlessness, as 
among the accompaniments of the approach of puberty. So 
also are to be reckoned, as general symptoms, extravagancies 
of expression; periods of ennui, in which labor is odious, inter- 
changed with those of intense and feverish activity. It is 
remarkable, however, that these symptoms are rarely to be 
observed among the children of the poor. They are rather 
the incidents of the spoilt children of fortune, the results of 
want of hard home-discipline. And perhaps to make them 
comparatively ungovernable—to intensify them, in fact, into 
practical insanity—is only needed the withdrawal of the dis- 
cipline the State exercises through its penal laws. Declare 
that such persons form a hereditary class who are not to be 
355 § 364] 
[BOOK I. 
MENTAL UNSOUNDNESS. 
restrained by fear of punishment because to punishment they 
are not amenable—and we do much to establish in them, in the 
shape of uncontrolled passions, the very mental disorder which 
the speculative theorist declares to be their predestined lot.(A) 
§ 364. “ A considerable portion,” to quote from an intelli- 
gent note to the pamphlet report of the trial of Andrews, in 
Massachusetts, in 1868, “of those who have suddenly appeared 
to be insane, were of unsound cerebral constitution by inheri- 
tance, their parents or ancestors having been insane. Tuke, 
referring to this class of transient cases, says: “An inquiry into 
the patient’s history will generally detect a change in cha- 
racter ; this, however, obviously cannot be looked for in cases 
where mental disorder can be traced back into infancy, or where 
the intellectual and moral defects are congenital. ”(£) Again 
he adds: “In some persons there is rather a congenital pro- 
clivity to disease than the actual disease itself, and in these, a 
circumstance which, in persons without that proclivity, would 
produce no result, will call into action abnormal, that is to say, 
truly diseased, mental manifestations, although they may be 
only functional and subside when the exciting cause is re- 
moved. ”(/) 
Devergie says: “ If we examine the ancestral history of the 
families, on the paternal or the maternal side, of these transitory 
maniacs, it is not rare that one or even many members of the 
family have been insane for longer or shorter periods.” lie 
quotes the case of one of these patients who had committed 
homicide in a transitory paroxysm, “ in whose family one ma- 
ternal great uncle died insane; one paternal aunt killed herself, 
and another relative on the mother’s side was known to have 
been troubled with eccentricities (bizarres idees) all her life.”(A) 
Castelnau, describing one, who, in a momentary paroxysm of 
mania, had killed another, said, “that her mother suffered from 
grave disease of the cerebro-spinal system, and had hemiplegia 
previous to this daughter’s birth. Her grandfather was insane, 
and her brothers were strongly impressed with the character 
(A) See supra, §§ 146-160 ; 195-199. 
O’) Bucknill and Take, Insanity, 201. (j) Ibid. 186. 
(A) Ann. Hyg. et Leg. Med. xi. 2d Ser. 412. 
356 BOOK I.] 
HEREDITARY TENDENCY. 
357 
of her ancestors.”(7) Of another he says the grandmother and 
great-grandmother were insane, and the father considered by 
the neighbors as not sane.(m) 
§ 365. “ In a great majority of cases,” says Dr. Wood, “ in- 
sanity is produced by exciting causes acting upon a predispo- 
sition to the disease. Inheritance is the most frequent source 
of this predisposition—perhaps more frequent than all others 
put together. Even a particular form of insanity is often in- 
herited ; and it has been noticed that the attack is apt to come 
on at the same period of life in the parent and his offspring. 
The tendency to suicide not unfrequently descends from parent 
to child. It is thought that children born before the occurrence 
of insanity in the parent are less liable to be affected than those 
born subsequently.’’(m1) 
§ 366. “ Although at the first glance,” says Renaudin, “ man 
appears to possess an independent existence, isolated from his 
birth from those who begot him, although there is but little 
apparent relation between his ripe age and first infancy; it is 
not the less true, that, behind the characters peculiar to his 
individuality, wrn can discover certain typical signs, some of 
which betray his nationality and others relate to his family. 
These typical signs are to be encountered not only in his phy- 
sical organization, but are also found in his moral idiosyncrasies, 
and, if tradition is of any force as regards manners and customs, 
inheritance is certainly of great value as relates to the tastes 
and habits. It is, in fact, manifested in the transmission from 
generation to generation of the most inveterate maladies, be- 
fore which art is obliged to confess its weakness; and it is with 
difficulty prophylactic measures ward off the sad result. In 
mental alienation, also, experience furnishes us daily proofs of 
this transmission, of which it is essential to study the mode. 
“The question whether this transmission is direct, or results 
from a predisposition whose development is due to the influence 
of an occasional cause, or, in other words, whether by itself it 
is an essential condition of causality, is no longer doubtful, 
(l) Ann. Hyg. xiv. 442. (m) Ibid. 443. 
(7nx) Practice of Medicine, by Prof. G. B. Wood, M.D., vol. ii. p. 672. 
Pliila. 1849. 
357 358 
MENTAL UNSOUNDNESS. 
[book t. 
and we now possess numerous examples not only of hereditary 
transmission, but also of an hereditary accumulation of the 
morbid predispositions. This is particularly the case in families 
where wedlock is limited to a small circle of fortune and social 
fitness. The royal families of many countries have not es- 
caped this law. We see generations of insane succeed each 
other with an unyielding regularity, and there are families 
which in this relation seem pursued by a desolating fatality. 
“Aside from idiocy and imbecility, which show themselves 
a short time after birth, the predisposition does not ordinarily 
show itself until the individual has reached a certain develop- 
ment—that is to say, when all the conditions of causality are 
reunited. This native predisposition does not suppose that 
those that preceded were insane; it depends, above all, upon 
the conditions in which they are placed and which react upon 
the phases of their existence. This predisposition is also pro- 
gressive from one generation to another; and it is in this 
manner that great social commotions and certain epidemics 
contribute to the production of insanity, in leaving after them 
deep distress or in producing a disordered exaltation. 
“All causes capable of altering the public health have a 
marked influence upon the immediate production of insanity 
or upon the hereditary transmission of its predisposition. The 
unhealthiness of dwellings and insufficiency or bad quality of 
food are so many circumstances influencing its production, and 
to which municipal governments should pay serious attention. 
It is on account of these and other analogous causes that cre- 
tinism and idiocy are endemic in certain localities, and that 
this influence is exercised not only on natives, but also upon 
those establishing themselves there. 
“The mode of life of the parents, and the diseases they have 
had are no less efficacious in producing a predisposition to 
mental unsoundness. If insanity has existed in those that 
preceded, the chances of a direct transmission are much more 
probable. This predisposition is sometimes so marked as to 
be in some measure the only cause. Among the circum- 
stances most likely to produce an hereditary predisposition, we 
should mention drunken habits in the parents. Many, indeed, 
are the cases of idiocy and imbecility which owe their situa- 
358 BOOK I.] 
HEREDITARY TENDENCY. 
[§ 368 
tion to this cause. Many generations thus suffer the punish- 
ment inflicted for the faults of one alone. 
“The hereditary predisposition presents numerous varieties 
in its evolution. Many members of the same family are free 
from mental unsoundness; and one only becomes insane. In 
another the inheritance shows itself from mother to daughter 
as a consequence of parturition. This predisposition sometimes 
consists only in the peculiarity of character, which drags a 
man towards a precipice which conducts irresistibly to in- 
sanity.”^) 
§ 367. Dr. Thomson, surgeon to the General Prison of Scot- 
land, as cited by Dr. Maudsley,(o) gives in this connection the 
result of his extensive experience in a very striking shape. 
He declares that crime is in a large degree hereditary in 
families; though this, it ought to be observed, is to be in many 
cases accounted for by the parents’ bad example, and the evil 
associations of home. But independently of this, there are 
certain nervous and physical disorders, traced by this expe- 
rienced observer, which cannot be so explained. Thus epilepsy, 
dipsomania, spinal deformities, stammering, imperfect organs 
of speech, club-feet, cleft palates, harelip, deafness, paralysis, 
and similar marks of physical degeneration, are specified as 
accompanying this hereditary line of abnormal guilt. 
§ 368. Dr. Maudsley, to this and similar statements, adds: 
“ I could not, if I would, in the present state of knowledge, 
describe accurately all the characteristics of the insane neurosis, 
and group according to their affinities the cases testifying to 
its influence. The chief concern now with its morbid pecu- 
liarities is to point out, first, that they mark some inherited 
fault of brain-organization; and, secondly, that the cause of 
such fault is not insanity alone in the parent, but may be 
other nervous disease, such as hysteria, epilepsy, alcoholism, 
paralysis, and neuralgia of all kinds. Except in the case of 
suicidal insanity, it is not usual for the parent to transmit to 
the child the particular form of mental derangement from 
(n) Etudes Medico-Psycliologiques, par L. F. E. Renaudin. Chap. ii. p. 
33. Paris, 1854. 
(o) Body and Mind, London, 1870, p. 66. 
359 §369] 
MENTAL UNSOUNDNESS. 
[book r. 
which he has suffered: insanity in the parent may he epilepsy 
in the child, and epilepsy in the parent, insanity in the child ; 
and in families where a strong tendency to insanity exists, one 
member may be insane, another epileptic, a third may suffer 
from severe neuralgia, and a fourth may commit suicide.” 
Nervous disease, declares this eminent physician, is a veritable 
Proteus, sometimes skipping generations, and sometimes dis- 
playing itself in several contemporaneous members of one family 
in the most capricious and dissimilar forms.(2?) 
§ 369. In regard to idiocy, the facts are very striking. “ Suf- 
fice it to say,” we are told by Dr. S. Gr. Howe, chairman of the 
Massachusetts State Idiocy Commission, in a very luminous 
report, submitted in 1848, “that, out of 420 cases of congenital 
idiocy examined, some information was obtained respecting the 
condition of the progenitors of 359. Now, in all these 359 
cases, save only four, it was found that one or the other or 
both of the progenitors of the unfortunate sufferers had, in 
some way, widely departed from the normal condition of 
health, and violated the natural laws.” 
“We have no doubt,” says a late eminent physician, “that 
various immoral and vicious practices ought to be ascribed to 
insanity. When periodic insanity has shown itself in a large 
family, it is probable that some members of the family will 
evince a propensity to thieving or swindling. And, when more 
children than one of the same parents, bursting through all 
(p) See also on this point essays by Dr. Stephen Rogers, in 3 Hammond’s 
Journal Psy. Med. 625, and by Dr. O’Dea, in 4 ibid. 28. It was stated in 
a Boston daily paper of April, 1872, that a gentleman is occasionally seen in 
New York, the pupils of whose eyes instead of being round are of the form 
of a keyhole. He has a son with precisely the same anomaly. In conse- 
quence of the aperture being very large, and without a muscular apparatus 
for contracting according to the quantity of light the organ can bear with 
impunity, as in ordinary eyes, they are obliged to knit their brows and par- 
tially curtain their eyes by closing the lids, otherwise the retina would be 
overpowered and perhaps paralyzed by impinging rays. Albinos transmit 
the congenital defect of their own optics to their children in the proportion 
of one to about five. That is, in a family of six children one will generall}' 
have red pupils. They see best in an obscure light, because the pigment 
which absorbs all the rays not required for distinct vision is wanting in them. 
Rabbits, especially white ones, are albinos, and so are many varieties of 
parrots. 
360 BOOK I.] 
HEREDITARY TENDENCY. 
[§ 370 
the restraints imposed by carefully-instilled principles and 
established habits, engage in swindling transactions, it will 
often appear, upon inquiry, that insanity has generally broken 
out in that family.”(q) And the same high authority tells us 
that in families where insanity prevails with the progenitors, 
he has known two, three, or four children of the same parents 
become deranged. One instance in particular he dwells upon, 
in which, among a family of twenty persons, the children of a 
brother and of two sisters, ten were afflicted with insanity. 
§ 370. An interesting table, originally published in the Lon- 
don Quarterly Review,(r) and indorsed by Dr. "Winslow,(s) 
shows at once the importance of this inquiry:—(t) 
(?) Essays on Partial Derangement in Supposed Connection witli Religion. 
By tbe late John Cheyne, M.D. Dublin, 1843. 
(r) No. 163. 
(s) Lectures, etc., 150. See Rush on the Mind. 46, where this point is 
examined. 
(t) On the general subject of the heredity of special moral and intellectual 
traits, see “ Hereditary Genius, an inquiry into its laws and consequences, by 
Francis Galton, F.R.S., etc., 8vo., London, 1869.” The following observa- 
tions of Mr. Darwin are directly in point:— 
“ When we reflect that certain extraordinary peculiarities have thus ap- 
peared in a single individual out of many millions, all exposed in the same 
country to the same general conditions of life, and, again that the same ex- 
traordinary pecpliarity has sometimes appeared in individuals living under 
widely different conditions of life, we are driven to conclude that such pecu- 
liarities are not directly due to the action of the surrounding conditions, but 
to unknown laws acting on the organization or constitution of the individual; 
that their production stands in scarcely closer relation to the condition, than 
does life itself. If this be so, and the occurrence of the same unusual cha- 
racter in the parent and child cannot be attributed to both having been ex- 
posed to the same unusual conditions, then the following problem is worth 
consideration, as showing that the result cannot be due, as some authors have 
supposed, to mere coincidence, but must be consequent on the members of the 
same family inheriting something in common to their constitution. Let it be 
assumed that in a large population a particular affection occurs on an average 
in one out of a million, so that the a priori chance that an individual taken 
at random will be so affected is only one in a million. Let the population 
consist of sixty milions, composed, we will assume, of ten million families, 
each containing six members. On these data, Professor Stokes has calculated 
for me that the odds will be no less than 8,333,000,000 to one that in the ten 
million families there will not be even a single family in which one parent 
and two children will be affected by the peculiarity in question. But 
numerous cases could be given, in which several children have been affected 
361 § 370] 
MENTAL UNSOUNDNESS. 
[book I. 
Initials of 
Criminals. 
Verbatim extracts 
from 
Letter of Referee. 
Observations on degree of 
intellect, etc., by the 
Chaplain when first seen. 
School-master’s Report 
on 
Leaving Prison. 
State on leaving the Prison 
as noted by Chaplin. 
J. C. 
Mother touched with symptoms of 
insanity. 
Improved in reading and writing. 
Improved generally. 
R. L. 
Grandmother insane. 
Read imperfectly. 
Read well, wrote imperfectly; four 
rules of arithmetic. 
J. H. 
Sister rather weak in mind. 
Only knew the alphabet. 
Read and wrote well; Rule of 
Three. 
Very cheerful; improved in gene- 
ral knowledge. 
H. N. 
He and most of the family evinced 
symptoms of insanity. 
Of the lowest kind. 
Read very imperfectly; write a 
little ; learned a little arithmetic. 
Sent away incorrigible. 
J. C. 
Two sisters insane. 
Of the lowest intellect, 
did not know A, B, C. 
Read well, wrote tolerably, four 
rules. 
Somewhat improved in general. 
D. M. 
His mother subject to nervous fits. 
Read and wrote well; Rule of 
Three. 
Mentally, not morally, improved. 
J. D. 
One of his family (his mother, I 
have every reason to believe) 
laboring with insanity. 
Read and wrote well; four rules. 
Improved in religious knowledge ; 
very cheerful. 
R. 
Of a simple turn of mind. Uncle 
in asylum. 
Improved considerably. 
In Scriptural knowledge also. 
W. J. 
alias 
W. C. B. 
Skull fractured three years ago. 
Improved in reading and writing ; 
Rule of three. 
Improved in Scriptural knowledge. 
\v. a. 
Sister considered rather silly. 
Of the lowest intellect, did 
not know the alphabet. 
Read and wrote imperfectly ; four 
rules. 
Cheerful. 
A. H. L. 
Had become dejected and absent 
after failure in business, and 
showed symptoms of insanity. 
Very low spirits. 
Read and wrote well; Rule of 
Three. 
Much improved in spirits; found 
comfort in religion. 
J. N. 
Considered rather as an idiot. 
Very low degree of intel- 
lect. 
Read and wrote well; Rule of 
Three. 
Improved in general knowledge. 
W. N. 
Almost irresponsible. 
Of very weak intellect. 
Well educated previously. 
Rather improved mentally. 
A. A. 
Weakness of mind, made sport of 
by fellow-servants. 
Low in spirits and intel- 
lect. 
Read and wrote well; Rule of 
Three. 
Mentally improved. 
362 BOOK I.] 
HEREDITARY TENDENCY. 
[§ 370 
F. W K. 
alias 
A. K. 
Uncle died in an asylum ; another 
committed suicide. Father and 
sisters considered weak. 
Low in spirits. Over-ac- 
tive mind; disliked his 
trade. 
Very well educated. 
Morally improved. 
J. M. F. 
Mother’s brother reported to be 
imbecile : harmless if let alone. 
Of a low degree of intel- 
lect. 
Read and wrote well. Rule of 
Three. 
Improved in general: was recom- 
mended to be master tailor on 
board ship. 
R. B. 
alias 
F.F.S. a Jew. 
Not considered quite correct in his 
mind. Aunt mad for along time. 
Peculiar turn of mind. 
Greatly improved, especially in 
Scriptural knowledge. 
D. M. 
Considered a simpleton. 
Low intellect. 
Read well, wrote imperfectly ; four 
rules. 
Improved generally. 
J. M. 
a Has 
.1 T 
Uncle killed himself in a fit of in- 
sanity. 
Low in spirits and intel- 
lect. 
Read well, wrote tolerably. Rule 
of Three. 
Much improved. 
C. J. C. 
Eldest brother exhibited symptoms 
of insanity. 
Good intellect. 
Well educated. 
Improved generally. 
T. N. 
Whole family eccentric, and very 
weak in intellect. 
Weak intellect. 
Read and wrote well. Rule of 
Three. 
Improved generally. 
R. R. 
Uncle’s intellect affected at times. 
only knew 
the alphabet. 
Read well, wrote imperfectly ; four 
rules. 
Improved generally. 
J. T. 
Father died a lunatic. 
Ordinary intellect. 
Read and wrote well. Rule of 
Three. 
Read tolerably; wrote imperfectly; 
improvement very little. 
Very much improved in general. 
J. S. 
I have thought, and more I am 
sure, that at times he was not 
altogether right in his head. 
More than ordinarily re- 
served and very dull. 
On the whole rather improved. 
H. C. 
The prisoner’s conduct, more es- 
A good intellect; appar- 
Could read and write well; con- 
Improved very much. Found peace 
alias 
L. 
pecially his wandering propensi- 
ties, are irreconcilable with per- 
fect sanity. 
ently much compunction 
for sin. 
siderably advanced in the higher 
rules of arithmetic ; improvement 
tolerably fair. 
and comfort in the Gospel. 
G. R. 
He was not quite sound in mind, 
and sometimes not conscious of 
what he was about. His own 
sister destroyed herself. 
A very low spirited man. 
Could read and write very well; 
considerably advanced in the 
higher rules of arithmetic ; intel- 
ligent ; made fair improvement. 
Improved in spirits. Found com- 
fort in religion also, I think. 
VV. H. 
His mother has evinced symptoms 
of insanity within the last three 
years. 
Nothing at all peculiar. 
Read well, wrote tolerably, higher 
rules of arithmetic. Improve- 
ment tolerable. 
Improved very much, especially in 
the memory. Gave himself to 
learning hymns, chapters, etc. 
363 § 370] 
MENTAL UNSOUNDNESS. 
[BOOK I. 
Initials of 
Criminals. 
Verbatim extracts 
from 
Letter of Referee. 
Observations on degree of 
intellect, etc., by the 
Chaplain when first seen. 
School-master’s Report 
on 
Leaving Prison. 
State on leaving the Prison, 
as noted by Chaplain. 
H. L. 
His father was subject to fits. 
Very low-spirited. 
Could read and write well; mensu- 
ration. Improvement tolerable. 
Very down hearted, would have 
sunk here, I think, but for some 
religious hope. 
J .15. 
One member of the family has ex- 
hibited symptoms of insanity. 
Ordinary. 
Read well; wrote tolerably ; knew 
common rules of arithmetic. Im- 
provement tolerable. 
Improved. 
H. B. 
I have known the person to have 
fits when over-fatigued. 
Ordinary. 
Read well; wrote tolerably ; com- 
mon rules of arithmetic. Im- 
provement tolerable. 
Very cheerful. 
J. K. 
He received an injury in his head ; 
from this time he became flighty 
and unsteady. His father was 
in some measure imbecile in both 
body and mind. 
A very active mind, but 
most perverse. 
Could read and write well; higher 
rules of arithmetic. Improve- 
ment tolerable. 
Cultivated his mind assiduously, 
but was very perverse to the last. 
W. S. 
alias . 
R. 
Have found him a little insane at 
times ; he was kicked by a horse 
in the head. 
Ordinary. 
Could read well, write tolerably, 
knew the first four rules in arith- 
metic. Improvement little. 
Rather improved. 
W. F. 
I knew him to labor under severe 
nervous fever for several months, 
which I always observed after- 
wards to cause a lowness of 
spirits. It was about eight years 
since. 
Good, but his constitution 
apparently weakened by 
intemperance. 
Read and wrote well; advanced in 
higher rules of arithmetic. Tole- 
rably improved. 
Very cheerful. Much improvement 
in every way. Gave great atten- 
tion to religion. 
J. A. 
alias 
E. W. 
Has not his senses perfect. 
Half-witted. 
Could read well ; made scarcely 
any improvement. 
Rather worse. 
W. D. 
alias 
J. B. 
I fully believe him to be at times 
insane. His maternal grand- 
father died insane. 
Clever, good, but pervert- 
ed and abused. 
Was well educated on admission ; 
was excused from school. Im- 
proved himself tolerably by read- 
ing and private study. 
Not improved. 
W. B. 
Very soft in many things. 
Low intellect. 
Could scarcely read any. Very 
little improved. 
Rather worse. 
J. D. 
His grandmother is in a Lunatic 
Asylum. 
Ordinary, but very dull. 
Read well ; wrote tolerably ; four 
rules of arithmetic. Improved a 
little. 
Improved rather in spirits. 
364 BOOK I.J 
HEREDITARY TENDENCY. 
365 
§ 371. Dr. Steinau, in his Essay on Hereditary Disease, men- 
tions a very interesting incident bearing on this point.(u) “ When 
by the same rare peculiarity with one of their parents; and in this case, more 
especially if the grandchildren be induced in the calculation, the odds against 
mere coincidence become something prodigious, almost beyond calculation.” 
A writer in the Edinburgh Review for July, 1870, thus speaks:— 
“Now assuming the theory of heredity to be well founded, it becomes a 
question of some nicety which of these two great qualities, ability or talent, 
comes most frequently within its law ? A question not very easily answered, 
for both are frequently, so to speak, sporadic ; manifesting themselves when 
sudden occasion calls for their development, and retreating, as it were, into 
obscurity as soon as the occasion for that development has passed by. 
“We believe it will be found, on the whole, that ability is more frequently 
hereditary than talent. Numerous cases of what commonly passes for heredi- 
tary talent are not really so. They arise from other causes than the influence 
of blood. They are especially subject to those influences which M. Lordat 
calls ‘ didactic.’ If we find a father and a son possessed of the same special 
gift—that of playing the fiddle, for instance, or portrait painting—the first 
and most obvious conclusion, as we have seen, would be, not that the son has 
‘ followed his profession because he is instinctively drawn to it,’ as M. Galton 
would have it, but that the son, possessing fair aptitude, has been carefully 
instructed in his particular line by the father, or has followed him by natural 
imitation. But no teaching by the father, no industrious imitation by the 
son, can convey ability, in the sense in which we have used the word. And, 
therefore, when we find not only father and son, but whole families, as is 
often the case, distinguished for general ability, we have probably the most 
striking corroboration of the theory of heredity which can be found; far more 
cogent than those instances of mere special gifts, supposed hereditary, which 
most writers on the subject, including Mr. Galton as well as M. Lucas, are 
apt to employ as affording the readiest means of demonstration. 
“ Our English society, so eminently aristocratic, furnishes a great repertory 
of facts of this description. No one who has read our histories—no one who 
has even studied the peerage—no one, indeed, who has mixed much in society 
—will be likely to question the fact that whole families are often so gifted in 
this way that it is an uncommon circumstance to find an absolutely common- 
place personage among them. And another remarkable proposition we would 
venture to advance on the evidence of public notoriety only, without antici- 
pating contradiction—no man of ability was ever the son of a couple of fools. 
But it is noteworthy also, in how very many cases this general high average 
of ability in a family seems to be accompanied with a powerlessness to rise 
still higher than that average. Every one of us—we appeal again to general 
observation — must be conversant with cases of families in which almost 
every member is clever, but not one very clever. None rises much above the 
(zi) See Pathological and Philosophical Essay on Hereditary Disease, p. 
19, No. 21. 
365 §371] 
MENTAL UNSOUNDNESS. 
[book i. 
I was a boy, there lived in my native town an old man, named 
P , who was such an inveterate thief, that he went in the 
average, though few or none seem to fall below it. And one remarkable 
instance of the kind we will cite from history as an explanation of our meaning 
rather than a proof, as single instances prove nothing. The Grenville family 
were for two or three generations a great power in our state. They had 
every opportunity of success in the line of politics which could be given to 
mortals. Several of them were ‘distinguished,’ almost all of them were 
‘able,’ men. And a curious similarity of turn and temperament seemed to 
unite them all. But not one was very able. No Grenville ever said or did a 
thing particularly worth remembering, if we except the unlucky author of 
the ‘American Stamp Act. ’ But when Grenville ability became crossed with 
the loftier qualifications inherited through the blood of Pitt, the result was of 
a very different order.” 
“Now, as we have already observed, we conceive talent—special aptitude 
of the mind for special purposes—to be undoubtedly heritable, though less 
frequently inherited than general ability. We will not dwell on the classes 
of families of painters, musicians, mathematicians, and the like, to which we 
have already referred as somewhat questionable, because they may really be 
due to a combination of other causes; still, these are too numerous and well 
authenticated to be disregarded as writers like Mr. Buckle would disregard 
them. Every one’s knowledge of his neighbor’s family history will more or 
less corroborate them. And so will popular tradition respecting great houses 
everywhere. The ‘ esprit des Mortemars’ was proverbial in France. ‘ There 
is an old saying in our county of Cornwall,’ observed the poet, Lord Lans- 
downe, ‘that a Trelawney never wanted courage, nor a Godolplnn wit, nor 
a Granville loyalty.’ There is among us at this day a ducal family of which 
the members in one generation, while in other respects persons of ability, are 
specially distinguished by one not very common faculty—aptitude for numer- 
ical calculation ; developing itself, according to their several temperaments, in 
lavish statistical argument on public affairs, in the mastery of complicated 
accounts, and at the whist-table. Another very distinguished house might be 
named, in which a predominant spirit of contrivance has displayed itself, 
through successive generations, in large speculations, in the ‘ management’ 
of the Cabinets of the last century, and in the government of a railroad in 
this. In cases like these, hereditary idiosyncrasy furnishes the only expla- 
nation, unless we are determined to regard them as accidental. A musician’s 
son may take to music from education or imitation. But when a family talent 
for calculation or for construction takes W'holly different directions in different 
members, this persistence of special qualities can only be accounted for, if at 
all, by physical causes : ‘ non lisec sine numine divum eveniunt.’ ” 
“Omitting, however, the case of sheer genius as exceptional, some may 
think the evidence in favor of the hereditary transmission of intellectual 
peculiarities so overwhelming as to dispose them to agree with Sir Henry 
Holland that the real subject of surprise is, ‘not that a character should be 
inherited, but that any should fail to be inherited.’ They might almost be 
366 BOOK I.] 
HEREDITARY TENDENCY. 
367 
whole place by that name; people speaking of him used no 
other appellation but that of The Thief, and every body then 
knew who was meant. Children and common people were 
accustomed to call him by that name, even in his presence, as 
if they knew not his other name; and he bore it to a certain 
degree with much good-natured forbearance. It was even 
inclined to adopt Voltaire’s lively suggestion, that, if as much care were taken 
in managing the breeds of men as those of animals, ‘ les genealogies seraient 
ecrites sur les visages et se manifesterient dans les moeurs.’ But there is 
assuredly no danger, or no hope, of the creation anywhere of such a race of 
intellectual patricians. In the first place, ‘ mirus Amour’ would very certainly 
render any efforts towards it fruitless by introducing his own capricious ex- 
ceptions. And, in the next place, if our very elementary knowledge of this 
branch of physiology has established anything, it is this : that from some un- 
known causes, hereditary peculiarities are certain to die out in time, and most 
likely to die out early. Such was the judgment of the ancients according to 
the experience of old times. The most brilliant families, says Aristotle, pass 
off into insanity; those of steadier ability, into idiocy. Or, as the same notion 
was polished into a proverb, ‘ heroum filii noxae : amentes, Hippocratis filii.’ 
‘The upward movement (le mouvement ascendant) of the high faculties 
which distinguishes so many founders of families almost always stops short 
at the third generation, rarely continues to the fourth, and scarcely ever 
beyond the fifth,’ is the judgment of Prosper Lucas. How far this apparent 
brevity of duration, in families, of the hereditary transmission of ability, may 
be reconciled with Mr. Darwin’s general views of the durability of inheritance, 
inquiries starting from more advanced knowledge may possibly determine. 
But it is consistent, at all events, with one fundamental law of human nature, 
which limits the progress of the individual, if not of the species. Each gene- 
ration inherits the accumulated knowledge of its predecessors. But the indi- 
viduals of each generation inherit no increase of intellectual power. It is no 
more possible to add a cubit to the mental than to the bodily stature. Physi- 
cal training gives health and vigor to the physical faculties ; but only up to a 
certain point, and that a point which has assuredly been reached before. Mr. 
Galton’s 4 oarsmen’ and 4 wrestlers’ may maintain inherited supremacy as a 
body ; but the individual best oarsman of this generation is not, except acci- 
dentally, a better man than he of the last. Well-trained men may be stronger, 
swifter, more enduring, than those who are not so ; but you cannot train a 
man to be strong, or swift, or enduring beyond a certain limit, and that a limit 
which we may be sure some other man has already reached. And, in the like 
manner, mental cultivation reaches inevitably its appointed maximum. No 
combination which we are entitled to conceive as possible of hereditary influ- 
ences will produce an individual fitted with mental powers beyond a standard, 
not so definable, indeed, as that of bodily powers, but quite as certain. 4 Es ist 
dafiir gesorgt,’ says the German proverb, 4 das die Biiume nicht in den Him- 
mel wachsen.’ ” 
367 368 
MENTAL UNSOUNDNESS. 
[book i. 
customary for the tradesmen and dealers, who frequented the 
annual fair in the place, to enter into formal treaty with him; 
that is, they gave him a trifling sum of money, for which he 
engaged not only not to touch their property himself, but even 
to guard it against other thieves. A son of this P , named 
Charles, afterwards lived in B during my residence there. 
He was respectably married, and carried on a profitable trade 
which supported him handsomely. Still, he could not help 
committing many robberies quite without necessity, and merely 
from an irresistible inclination. lie was several times arrested 
and punished; the consequence was, that he lost his credit and 
reputation, by which he was at last actually ruined. He died 
while still a young man, in the house of correction at Sp , 
where he had been confined for his last robbery. A son of 
this Charles, and grandson of the above-mentioned and noto- 
rious P , in my native town, lived in the house where I 
resided. In his earliest youth, before he was able to distin- 
guish between good and evil, the disposition to stealing, and 
the ingenuity of an expert thief, began already to develop 
themselves in him. When about three years old, he stole all 
kinds of eatables within his reach, although he always had 
plenty to eat, and only needed to ask for whatever he wanted. 
He therefore was unable to eat all that he had taken; never- 
theless he took it, and distributed it among his play-fellows. 
When playing with them, some of their playthings frequently 
disappeared in a moment, and he contrived to conceal them for 
days, and often for weeks, with a slyness and sagacity remark- 
able for his age. When about five years old, he began to steal 
copper coins; and at the age of six years he began to know 
something of the value of money, and he looked out for silver 
pieces ; and in his eighth year, he only contented himself with 
larger coins, and proved to be, on public promenades, an expert 
pickpocket. lie was early apprenticed to learn a trade, but 
his master, being continually robbed by him, soon dismissed 
him. This was the case with several other tradesmen, till at 
last, in his fourteenth year, he was committed to the house of 
correction.” 
§ 372. “Nothing,” says Mr. Hill, in his work on crime, “has 
been more clearly proved than that crime is, to a considerable 
368 BOOK i.] 
HEREDITARY TENDENCY. 
[§ 373 
extent, hereditary—crime appearing, in this respect, greatly to 
resemble pauperism, which, according to the evidence of the 
Poor-law Commissioners, often proceeds from father to son in 
a long line of succession.”(r) He adduces numerous cases in 
confirmation of the fact. One of the most striking applies to 
the families of three brothers, containing together fifteen 
members. Of these, no fewer than fourteen were utterers of 
base coin, while the fifteenth, who appeared to be an exception 
to his kindred, was, at length, detected in setting fire to his 
own house, which he had insured for four times its value. 
“Supposing each of those employed in uttering base coin to 
have passed only one piece a day, and to have had a career of 
five years’ duration (which there is reason to believe is about 
the average), no fewer than twenty thousand offences might 
have been prevented by removing the three brothers perma- 
nently from society, before they became fathers of families.” 
The disposition to commit crime is often unquestionably an in- 
curable form of insanity ; hence, we read of persons who are all 
their lives criminals, and only terminate one period of impri- 
sonment to recommence another. The case of a woman is cited 
by Mr. Hill, who continued in a career of crime for twenty-five 
years; and that also of another woman, fifty years of age, who 
had already been in prison sixty-seven times. Furthermore, 
he refers to another example, of a woman who had been in the 
police cells, in Edinburgh, at least one thousand times, chiefly 
for acts of But it should not be forgotten that, 
unless there be hereditary insanity, mere hereditary tendency 
to crime is no more a defence to crime than is the doctrine of 
the hereditability of sin. 
(1?) Legally. 
§ 373. In a legal as well as a psychological view, the relevancy 
of evidence of hereditary taint has been very ably shown by 
a late eminent judge,(a:) whose capacity as a mental observer 
was not less than his ability as a judge. On the trial of the 
(«) Crime ; its Amount, Causes, and Remedies. By Frederick Hill, Bar- 
rister-in-law, late Inspector of Prisons, 1833, p. 55. 
(w) Ibid. (x) Gibson, C. J. 
vol. i.—24 
369 § 373] 
MENTAL UNSOUNDNESS. 
[book i. 
issue, the object of which was to determine the validity of the 
will of Captain Arrowsmith, the evidence was that the de- 
ceased was a retired mariner who had attained a competence; 
the plaintiff was his sister, his heir by descent, as the last of 
her father’s issue; and the defendant, his housekeeper, was his 
devisee. The fact in contest was his sanity. There was no 
evidence of fraud or imbecility; but the plaintiff’s witnesses 
testified as to acts of sudden and unprovoked passion, violence, 
wildness, extravagance, and eccentricity; and, in order to cor- 
roborate the inference from them, her counsel offered the depo- 
sition of Susan Arrowsmith, the widow of one of the testator’s 
brothers, that the testator’s father was insane towards the close 
of his life; that one of the testator’s two uncles, on the father’s 
side, was insane, and the other imbecile; that his two aunts, 
on the same side, and their children, were insane; that a son 
of one of them is in a madhouse; and that her own husband 
was mentally disqualified before his death. The admission of 
the deposition was opposed, on the ground that the legitimate 
inquiry was into the state of the testator’s mind, not that of 
another; and that it did not follow, that, because the testa- 
tor’s father and his collateral relations were insane, he must 
have been so too. The point was elaborately argued on prin- 
ciple and authority, but the Chief Justice said: “I admit the 
deposition without hesitation, notwithstanding the dicta of 
Mr. Shelford^1) and Mr. Cliitty,(:r2) that it is an established 
rule of law not to admit proof of insanity in other members of 
the family in civil or criminal cases. Established ! When, 
where, and by whom? Certainly not by the House of Lords, 
in Me Adam v. the only case cited for it, for the 
question there was avowedly dodged. That high court would 
not shock common sense by affirming the order of the Scotch 
Court of Session; nor would it gratuitously reverse it, when 
the decision could be safely put on another ground. The 
authority of a judgment appealed from, and left in dubio, can- 
not be very great. Sir Samuel Romilly’s argument against the 
evidence was rested on the fecundity and interminableness of 
(«*) Treat, on Lunacy, 59. (x2) Med. Jurisp. 355. 
(z3) 1 Dows. Par. Ca. 148. 
370 BOOK I.] 
HEREDITARY TENDENCY. 
[§ 373 
collateral issues; and Mr. Chitty seems to have had a glimpse 
of the same idea, when he said the course is to confine the 
evidence to the mental state of the party. But every new 
fact, though it open a new field of inquiry, is not collateral. 
It may bear directly on the fact in contest; and, where it does 
so, it is not in the power of the court to shut it out. A col- 
lateral issue is such as would be raised by allowing a party to 
put a question to a witness, on cross-examination, in regard to 
a fact palpably unconnected with the cause, in order to afford 
an opportunity to discredit him by contradicting him; but 
does not proof of hereditary madness bear directly on the con- 
dition of the mind, which is the subject of investigation? 
What if the point had been ruled by the chancellor and law 
judges in the House of Lords? Profoundly learned in the 
maxims of law, they were profoundly ignorant of the lights of 
physiology; yet, free from the presumptuousness of which igno- 
rance is the foster-father, they refused to rush on the decision 
of a question to which they felt themselves incompetent. Mr. 
Chitty fancifully puts the solution of questions of insanity on 
the doctrine of legal presumptions. ‘As the imputation,’ he 
says, ‘ is contrary to the natural presumption of adequate intel- 
lect, the deficit should be established by direct and positive 
evidence, and not merely by conjectural or probable proof.’ 
If that be law, a question of insanity is the only one in which 
positive evidence is required, and circumstantial evidence to 
corroborate is rejected. Why is evidence of an old grudge 
admitted against a prisoner as a remote proof of malice, if the 
remote proof of hereditary insanity may not be given by him 
to rebut it; and why should the presumption of sanity be 
allowed to overbear the presumption of innocence, the strongest 
of them all? I admit that hereditary insanity will not itself 
make out a case for or against a member of the family; but to 
say that it may not corroborate what Mr. Chitty calls direct 
and positive proof, without defining it, staggers all belief. In 
a measuring cast it ought to prevail. He says harsh conduct, 
bursts of passion, or displays of unnatural feeling will not, of 
themselves, establish insanity. Be it so. But, because the 
springs of such actions are concealed, are they never to be laid 
bare, and shown to be seated in the blood ? When it is admit- 
371 § 373] 
MENTAL UNSOUNDNESS. 
[book r. 
ted by Mr. Chitty and Mr. Shelford themselves, that insanity 
is a descendable quality, they give up the argument. There 
can be nothing unreasonable in referring wild, furious, and 
unnatural actions, not otherwise accounted for, to the aberra- 
tions of a mind, the reflux of that of a crazy father. Mr. 
Taylor, a distinguished lecturer on Medical Jurisprudence in 
Guy’s Hospital, London, says that ‘in making a diagnosis of a 
case of insanity, the first question put is commonly in refer- 
ence to the present or past existence of the disorder in other 
members of the family. There can be no doubt, from the cur- 
rent testimony of many writers on insanity, that a disposition 
to the disease is frequently transmitted from parent to child 
through many generations. M. Esquirol has remarked, that 
this hereditary taint is most common of all cases to which in- 
sanity can be referred.’(y) M. Esquirol was, in 1838, and per- 
haps is still, the principal physician to the hospital for the 
insane at Cbarenton, in France, and a member of the Royal 
Academy of Medicine at Paris. Ilis tables of insanity are 
held in high repute by not only the physicians of France but 
of Europe. Well might Mr. Taylor say that these things 
ought to be borne in mind by medical jurists. The knowledge 
attained by men, of a subject which they have grappled all 
their lives, ought surely to prevail against knowledge gleaned 
from the hornbooks of a profession to which the gleaners did 
not belong. Strange that a source of information open to 
every one else should be closed to those who are to pass on the 
fact. Every man has observed that there are families through 
which insanity has been handed down for generations; and 
why should the probability of hereditary madness be excluded, 
when probabilities in other cases are weighed, especially when 
it is known that a proclivity to theft, intemperance, lying, 
cheating, and almost all other moral vices, are as transmissible 
as gout, consumption, deafness, blindness, and almost all other 
constitutional diseases? It is supposed by the million that 
insanity is a disease of the mind, not of the body. Ridiculous! 
If it were, it could never be cured; for the mind cannot take 
physic, or be separately treated; yet the statistics of the insane 
(,y) Taylor on Med. Jurisp. 502. 
372 BOOK I.] 
HEREDITARY TENDENCY. 
[§ 374 
exhibit a great number of cures, and the time is fast coming 
when insanity will be considered the most manageable disease 
that flesh is heir to. An objection to an inquisition which 
does not disclose the specific nature of the ancestor’s infirmity 
might stand in a different light; but testimony which brings 
the fact of madness home to him ought to he received like 
evidence of family likeness, which, though less reliable, was 
allowed to he corroborative proof of paternity in the Douglas 
Peerage case, in 1767, and again in the Townsend Peerage 
case, in 1843. Lord Mansfield said, in the former, that he had 
always considered likeness as an argument of a child being the 
son of a parent; that a man may survey ten thousand people 
before he sees two faces exactly alike, and that in an army of 
a hundred thousand men, every man may be known from an- 
other ; that if there should be a likeness in feature, there may 
be a difference in the voice, gesture, or other characters: 
whereas family likenesses run generally through all of these; 
for that in everything there is a resemblance, as of feature, 
voice, attitude, and action. Might he not have added the 
diathesis of the brain? He doubtless might, if the point had 
been mooted. In prosecutions for bastardy, the practice in the 
Quarter Sessions was, in my day, not exactly to give the child 
in evidence, but to put it before the jury, sometimes by the 
prosecutor, and sometimes by the putative father. But ances- 
tral irregularity in the action of the brain is more frequently 
transmitted than any resemblance in form or feature; and it is 
difficult to imagine an objection to evidence of it for purposes 
of corroboration. ”(y) 
§ 374. Taylor thus sums up the recent English cases on this 
point: “In the case of Reg. v. Ross Touchet, 1844, tried and 
acquitted on the ground of insanity, for shooting a man, Maule, 
J., held that evidence that the grandfather had been insane 
may be adduced, after it had been proved by medical testimony 
that such disease is often hereditary in a family. It was also 
admitted in Oxford’s case, the prisoner having been here tried 
for shooting at the Queen.(a) This kind of evidence has, 
(z) Smith v. Kramer, 1 Am. Law Reg. 353. 
(a) Law Times, Oct. 26, 1844. 
373 § 376] 
MENTAL UNSOUNDNESS. 
[book i. 
however, been frequently rejected, and it is not admitted in 
the law of Scotland.(i) There can be no doubt, from the con- 
current testimony of all writers on insanity, that a predispo- 
sition to the disease is frequently transmitted from parent to 
child through many generations. The malady may not always 
show itself in • such cases, because the offspring may pass 
through life without being exposed to any exciting cause; but 
in general it readily supervenes from very slight causes.”(c) 
§ 375. Evidence of this class is not to be limited to the 
immediate relatives of the patient. Thus in Andrews’ case, 
before the Supreme Court of Massachusetts, in 1868, the court 
admitted evidence of the insanity of the collateral issue of 
a common ancestor of the defendant three generations back.(<i) 
It is clear that evidence of mental unsoundness on the part of 
a brother or sister of the person whose competency is in ques- 
tion is admissible.(e) 
§ 376. It has been ruled, indeed, in North Carolina, that 
where hereditary insanity is offered as an excuse for crime 
(the case before the court was murder), there must be proof 
(5) Gibson’s case, Edinburgh, Dec. 1844. 
(c) Taylor’s Med. Jur., p. 555. 
((?) Andrews’ trial, pamphlet, p. 135. See also Baxter v. Abbott, 7 Gray, 
81, where the insanity of uncles was allowed to be shown, and Com. v. 
Rogers, 7 Metcalf, 500. So in Christiana Edmunds’s case, in London, Jan. 
1872, the defendant appears to have been permitted to give proof of this kind 
without limit as to degree of relationship. The law is thus stated by Judge 
Thomas in Baxter v. Abbott, 7 Gray, 81. 
“ We think the practice has been to admit evidence of insanity in the 
family. We think the practice is right in principle. It rests upon the 
ground of the hereditary character of insanity; that a predisposition to the 
disease is frequently transmitted from parent to child. With such predispo- 
sition the malady may not show itself in the child, for the child may not be 
exposed to any exciting cause. But, with such hereditary taint, insanity 
supervenes from, slight causes—causes apparently wholly inadequate to affect 
the mind without the predisposition. In making a diagnosis of such a case, 
we suppose that, among the first questions which would be put, would be the 
question whether the parents of the patient were or had been insane. With 
the fact that father or mother or either of them had been insane, that the 
insanity had appeared in them at about the same age, and in the same form, its 
existence in the child is more probable, and is believed on less perfect evidence.” 
S. P. People v. Smith, 31 Cal. 466. 
(e) People v. Garbutt, 17 Mich. 9. 
374 BOOK I.] 
CONVERSATION AND DEPORTMENT. 
[§ 378 
that the insanity was notorious, and of the same species, as that 
with which other members of the family have been afflicted.(/) 
But this decision cannot be sustained. Insanity, it has been 
well said, is protean. Sometimes it may be so concealed that 
it may escape the knowledge of all but the closest observers. 
Often, as has been seen, it changes its form from time to time 
in the same individual; and when passing from parent to 
child it almost always varies its type. 
§ 377. It cannot be presumed against proof that a person 
is insane, merely because his mother had been so.(g) 
(d2) Conversation and deportment. 
§ 378. The general questions relating to feigned insanity are 
distinctively hereafter noticed.(A) One or two cases will be 
sufficient to show the importance of accurate observation in 
this respect. 
“ A parish officer, from the neighborhood of Middleton, Eng- 
land, took a lunatic to the asylum, pursuant to an order signed 
by two magistrates. As the man was respectably connected, 
a gig was hired for the purpose, and he was persuaded that it 
was merely an excursion of pleasure on which he was going. 
In the course of the journey, however, something occurred to 
arouse the suspicions of the lunatic with respect to his real 
destination; but he said nothing on the subject, made no 
resistance, and seemed to enjoy his jaunt. When they arrived 
at Lancaster, it was too late in the evening to proceed to the 
asylum, and they took up their quarters for the night at an inn. 
Very early in the morning the lunatic got up and searched the 
pockets of the officer, where he found the magistrate’s order 
for his own detention, which, of course, let him completely 
into the secret. With that cunning which madmen not un- 
frequently display, he made the best of his way to the asylum, 
saw one of the keepers, and told him that he had got a sad 
mad fellow down at Lancaster, whom he should bring up in 
(/) State v. Christmas, 6 Jones (N. C.), 471. 
(g) Snow v. Benton, 28 111. 806. 
(h) See infra, §§ 443-460; and as to change of character and disposition, 
see infra, § 390. 
375 § 378] 
MENTAL UNSOUNDNESS. 
[BOOK I. 
the course of the day, adding: ‘He’s a very queer fellow, and 
he has got very odd ways. For instance, I should not wonder 
if he was to say I was the madman, and that he was bringing 
me; but you must take good care of him, and not believe a 
word that he says.’ The keeper of course promised compli- 
ance, and the lunatic walked back to the inn, where he found 
the officer still fast asleep. lie awoke him, and they sat down 
to breakfast together. ‘ You’re a lazy fellow to be sleeping all 
day; I have had a long walk this morning,’ says the lunatic. 
‘Indeed,’ says the officer, ‘I should like to have a walk myself 
after breakfast; perhaps you will go with me?’ The lunatic 
assented, and after breakfast they sat out, the officer leading 
the way toward the lunatic asylum, intending to deliver his 
charge; but it never occurred to him to examine whether his 
order was safe. When they got within sight of the asylum 
the lunatic exclaimed, ‘What a tine house that is 1’ ‘Yes,’ 
said the officer, ‘ I should like to see the inside of it.’ ‘ So 
should I,’ observed the lunatic. ‘Well, I dare say they will 
let us through—I will ask,’ was the response. They went to 
the door; the officer rang the bell, and the keeper whom the 
lunatic had previously seen made his appearance, with two or 
three assistants. The officer then began to fumble in his 
pockets for the order, when the lunatic produced it, and gave 
it to the keeper, saying, ‘This is the man whom I spoke 
to you about. You will take care of him; shave his head, 
and put a strait waistcoat on him.’ The men immediately 
laid hands on the poor officer, who vociferated loudly that the 
other was the madman, and he the officer; but, as this only 
confirmed the story previously told by the lunatic, it did not 
at all tend to procure his liberation. He was taken away, and 
became so indignantly furious that the strait waistcoat was 
speedily put upon him, and his head was shaved, secundum 
artem. Meanwhile, the lunatic walked deliberately back to 
the inn, paid the reckoning, and set out on his journey 
homeward. The good people in the country were, of course, 
surprised on seeing the wrong man return; they were afraid 
that the lunatic, in a fit of frenzy, had murdered the officer, 
and they asked him with much trepidation what he had 
done with Mr. Stevenson. ‘Done with him?’ said the mad- 
376 BOOK I.] 
CONVERSATION AND DEPORTMENT. 
.[§379 
man, ‘ why, I left him at the Lancaster Asylum, as mad as a 
fury!’ which, indeed, was not very far from the truth; for the 
wits of the officer were well nigh upset by his unexpected 
detention and subsequent treatment. 
“ Further inquiry was forthwith made by his neighbors, and 
it was ascertained that the man was actually in the asylum. 
A magistrate’s order was produced for his liberation; and he 
returned home with a handkerchief tied round his head in 
lieu of the covering which nature had bestowed upon it.”(i‘) 
§ 379. “ I was requested,” says Dr. Winslow, “ to see a gen- 
tleman who was said to be suicidally insane. Upon inquiry, I 
ascertained from good authority that under the influence of the 
most distressing hallucinations he had attempted to hang him- 
self. The patient firmly, earnestly, and apparently with great 
truthfulness, resolutely and repeatedly denied the fact. He 
declared it was an invention—a pure creation of the imagina- 
tion, originating with the family ; that he was happy, subject 
to no depression, had a strong wish to live, and great fear of 
death. I examined him, in conjunction with another physi- 
cian, and neither of us could seize hold of the salient point, 
or satisfy himself that the man was actually insane. But, we 
asked ourselves, what motive could his family have for thus 
misrepresenting the facts of the case? We felt quite assured, 
from the character of the evidence presented, that an attempt 
at suicide had been made ; but the patient, with an ingenuity 
which would have reflected credit upon a nisi prills lawyer, 
parried with great skill all the questions, and gave such prompt 
and happy replies to our anxious interrogatories, that we were 
compelled to admit ourselves, for a time, perfectly defeated. By 
a course of conversation I drew the gentleman’s thoughts into a 
different channel; and, whilst my attention was directed appa- 
rently elsewhere, I kept a close watch upon his movements. I 
perceived, as I imagined, some kind of instrument projecting 
from his pocket. He perceived that my eyes were directed to 
this, and he immediately expressed a wish to leave the apart- 
ment. I at once said, ‘ I cannot permit you to do so until I 
know what you have concealed in your trowsers pocket.’ He 
(*) Mancliester (England) Guardian. 
377 § 379] 
MENTAL UNSOUNDNESS. 
[book i. 
at once manifested signs of embarrassment and excitement, 
and, rising rapidly from his seat, endeavored to rush out of the 
door. He was immediately prevented from doing so, and his 
pockets emptied, and a razor discovered. In his pocket-book 
a letter was found, addressed to the coroner, intimating to him 
that he was pursued by an evil spirit, and this impression had 
driven him to commit an act of self-destruction. Fortunately 
for our own reputation and the patient’s life, this providential 
discovery was made.(J) It may be necessary to see and ex- 
amine the patient on more than one occasion before the physi- 
cian is satisfied as to the actual state of his mind. In cases of 
doubtful character, I would suggest that this course should 
invariably be adopted, taking the necessary precaution to re- 
commend close vigilance during the interregnum. I suggest 
this course, in consequence of my being acquainted with the 
case of a lady, whose removal from home was for a few days 
temporarily postponed, in compliance with the cautious and 
judicious advice of the medical man, who admitted that he 
could not detect, according to his apprehension, sufficient evi- 
dence of insanity to justify him in signing the certificate. 
During the interim she succeeded in destroying herself. In a 
few instances we are justified in partially acting upon the rep- 
resentations of the family and friends of the alleged lunatic. 
If a delusion be detected, it must be referred to; and, if the 
patient has committed any overt acts of violence, or manifested 
a suicidal disposition, it is our duty to refer to these facts, 
guarding ourselves by stating that we derive such information 
O') “ It is only in having,” says Orflla, “an acquaintance with the whole 
life of an individual, in weighing and comparing every fact, that in some 
cases, we can pronounce with certainty upon his actual moral state. It is in 
interrogating the past that we acquire a knowledge of the present.” The 
same author also states, that, when an opinion is asked from physicians upon 
the actual state of an accused person, they ought, in the examination of his 
previous conduct, to understand what act is imputed to him, if that should be 
necessary to influence their opinion. In a report, they should not confine 
themselves to a simple opinion upon the state of the person who is the subject 
of it, but, of necessity, should go into details upon the facts observed, in order 
that the same piece may be submitted to the examination of new experts. 
The employment of all the means indicated does not always lead to a positive 
result, and sometimes we are to remain in doubt.—Med. Leg.,Orflla, tome i. 
p. 400. Paris, 1848. 
378 BOOK I.] 
CONVERSATION AND DEPORTMENT. 
[§ 380 
from parties immediately around the patient. It is important 
in all cases to specify the character of the existing delusion. 
The expression of a belief in the fact of delusive ideas, and of 
the presence of abstract insanity without a specification of facts, 
renders a medical certificate invalid. I have often seen certi- 
ficates worded to this effect: ‘ I have formed my opinions from 
the fact of the party being insane’—‘ being under delusions’— 
‘ being excited’—‘ being violent.’ These generalizations should 
be carefully avoided; the more concise the account of the 
patient’s condition, the closer will it be in unison with the 
expressed wish of the Commissioners in Lunacy. The record 
of one clear and unmistakable delusion is quite sufficient for 
all legal purposes. But cases do occur where no delusion can 
be detected, and yet confinement may be absolutely necessary. 
Under such circumstances it is the duty of the medical man 
to enter more into detail as to the facts of the case. Perhaps 
I may be excused for suggesting, that, in every instance of this 
kind, the parties should keep copies of their certificates.”^) 
§ 880. A man mentioned by Pinel, who had been for some 
time confined in the was, on the visitation of a com- 
missary, ordered to be discharged as perfectly sane, after a long 
conversation in which he had conducted himself with the 
greatest propriety. The officer prepared the proems verbal for 
his discharge, and gave it to him to put his name to it, when 
he subscribed himself Jesus Christ, and then indulged in all 
the reveries arising from that delusion. Lord Erskine gives a 
very remarkable history of a man who indicted Dr. Munro for 
confining him without cause in a madhouse. He underwent 
the most rigid examination, by the counsel of the defendant, 
without discovering any appearance of insanity, until a gentle- 
man came into court who desired a question to be put to him 
respecting a princess with whom he had corresponded in cherry- 
juice. He immediately talked about the princess in the most 
insane manner, and the cause was at an end. But, this having 
taken place in Westminster, he commenced another action in 
the city of London, and on this occasion no effort could induce 
him to expose his insanity; so that the cause was dismissed only 
(ft) Winslow on Medico-Legal Ev. 153. 
379 § 382] 
MENTAL UNSOUNDNESS. 
[book i. 
by bringing against him the evidence taken at 'Westminster. On 
another occasion, Lord Erskine examined a gentleman who had 
indicted his brother for confining him as a maniac, and the 
examination had gone on for great part of a day without dis- 
covering any traces of insanity. Dr. Sims then came into 
court, and informed the counsel that the gentleman considered 
himself as the Saviour of the world. A single observation, 
addressed to him in this character, showed his insanity, and 
put an end to the cause. Many similar cases, says Abercrom- 
bie, are on record. Several years ago, a gentleman in Edin- 
burgh, who was brought before a jury to be cognosced, defeated 
every attempt of the opposite counsel to discover any traces of 
insanity, until a gentleman came into court, who ought to 
have been present at the beginning of the case, but had been 
accidentally detained. He immediately addressed the patient 
by asking him what were the latest accounts from the planet 
Saturn, and speedily elicited ample proof of insanity.(£) 
§ 381. M. Orfila states, that deranged persons who are con- 
scious of their condition, and who yet preserve some control 
over themselves, will answer correctly all questions that are 
addressed to them, and will not betray their condition if they 
have an interest in concealing it.(?n) 
§ 382. Mr. David Paul Brown gives us the following illus- 
tration of this same craftiness: M., having written a letter from 
the asylum, made up of patches of Latin, Greek, French, and 
German, and manifesting most clearly a disordered mind, upon 
escaping from his confinement desired counsel to institute an 
action for false imprisonment, against the managers. “ I shall 
do no such thing,” said the lawyer (handing him the letter); 
“ look at that, and tell me whether a sane man ever wrote such 
a letter.” Upon which, bursting into a laugh, the madman 
said, “ That indeed does look as if I were insane; but I wrote 
it purposely in that way, because I knew if it had been reason- 
able, and the managers had opened it, as they always do, they 
never would have allowed it to reach its address.”(?i) 
(l) Abercrombie on the Intellectual Powers, pp. 253, 254; see also §§ 
86-92. 
(m) Med. L6g. M. Orfila, tome i. p. 396. Paris, 1848. 
(n) 2 Brown’s Forum, p. 478. 
380 BOOK I.] 
CONVERSATION AND DEPORTMENT. 
[§ 383a 
§ 383. Lord Chancellor Loughborough once ordered a man 
to be brought before him, against whom his heirs wished to 
take out a commission of lunacy. lie examined him and put 
various questions to him, to which he made the most pertinent 
answers. “This man mad!” thought he, “verily he is one of 
the ablest men I ever met with.” Toward the end of the ex- 
amination, however, a little scrap of paper was put into his 
hands on which was written “Ezekiel.” This was enough for 
such a shrewd and able man as his Lordship. He took his 
cue. “ What fine poetry,” said the Chancellor, “ is in Isaiah!” 
“Very fine,” replied the man, “especially when we read in 
the original Hebrew.” “ And how well Jeremiah wrote.” 
“Surely,” said the man. “What a genius, too, was Ezekiel!” 
“Do you like him?” said the man; “I’ll tell you a secret, I am 
Ezekiel!” 
§ 383a. “Another patient of mine,” says Dr. Bucknill, “a 
barrister, so completely concealed and denied his delusions in 
conversation, that he succeeded in persuading his relatives, and 
especially his mother, a woman of rare intelligence and dis- 
crimination, into the belief of his perfect recovery from an 
attack of mania, and of his capacity to resume his professional 
labors. During the whole of this time he was writing letters 
to relatives living at a distance, full of delusion relating to his 
supposed marriage with a servant, to the distribution of a 
large fortune which he did not possess, and a yacht voyage to 
every part of the globe. 
“ The conduct of the patient should be observed by night 
as well as by day. I have for several years had under my care 
a respectable tradesman, whose conduct and conversation 
during the day exhibit scarcely a trace of mental disease. He 
is industrious, sensible, and kind-hearted; and it is strange 
that his nights of suffering have left no painful impression on 
his pleasing features. At night he sees spectres of demons 
and spirits, at which he raves aloud and prays with energetic 
fervor. 
“ That it is important to test the memory and the capacity 
by examinations, repeated at various times, is shown by the 
case recorded by Sir H. Halford in his Essays. A gentleman 
sent for a solicitor, gave instructions for his will, and told the 
381 § 384] 
MENTAL UNSOUNDNESS. 
[book i. 
solicitor that he would make him his heir; soon after this he 
became deranged. After a month’s violence he was composed 
and comfortable, and manifested great anxiety to make his 
will. This request was evaded as long as possible, but at last 
consented to. The solicitor received the same instructions, 
drew it, and it was signed by the physicians (Sir Henry 
Halford and Sir George Tuthill). After leaving the room and 
conversing on the delicacy of their situation, the physicians 
returned to his room and questioned him how he had left his 
property. He mentioned the legacies correctly, hut, when 
asked to whom the real estate was to go, he said, ‘ To the heir- 
at-law, to be sure.’ This case, although instructive, is not very 
intelligible; probably the solicitor was better acquainted with 
the peculiar weakness of the patient’s mind than either of the 
eminent and titled physicians.” 
§ 884. Cunning may run coincidently with insanity for a 
long series of years, and may, in a certain stealthy furtiveness, 
be one of the forerunners of insanity. “ This brings us to 
another phase,” says the writer of an intelligent survey of 
the reign of George III., in the London Sp>ectator of April 27, 
1872, “in the character of George III. We have seen that 
Lord Waldegrave speaks of his want of frankness. It is 'pro- 
bable that the brooding temperament and indirectness of conduct 
which are among the least pleasing of George’s characteristics were 
closely connected with the mental disease to which he had a constant 
tendency. Secretiveness and cunning are usually marked features 
in an organization so affected, and the suspiciousness of others and 
the strong and irrational likes and dislikes which are main ope- 
rating causes in such a nature produce, as a necessary result, dis- 
simulation and crafty under-hand intrigue. When George, then, 
found that his violent declarations and overbearing wilfulness 
produced no effect, he restrained his morbid impatience (al- 
though his reason on several occasions tottered and even tem- 
porarily succumbed under the effort), and endeavored to attain 
his ends by cunning watchfulness of opportunities. He acqui- 
esced outwardly in the change of advisers and abandonment 
of cherished policy, and then set to work to undermine the 
position of the intrusive counsellors, and to thwart, as much 
as he could venture to do, the development of their plans. 
382 BOOK I.] 
CONVERSATION AND DEPORTMENT. 
[§ 384 
lie intrigued, in fact, against the ministers he could not meet 
openly, and waited for the moment when he could safely dis- 
miss them again with ignominy. Hence arose the political 
phenomenon which went under the name of ‘The King’s 
Friends’—a set of men who formed a backstairs anti-cabinet, 
the object of which was to employ the king’s name and the 
influence of his personal sentiments in organizing an opposition 
to his ostensible cabinet advisers, both in Parliament and in 
the country at large. It must not be supposed by this that 
there was any regularly constituted ‘ cabal,’ or any precisely 
defined plans of operation for its guidance; but there were 
nearly always throughout the reign of George III. two or three 
men—generally not men of high ability, but busy, gossiping 
intriguers, who were irresponsible, and both unavowed and 
often disavowed agents in making known what the king’s 
real wishes were. "With the assistance of such men, and by a 
careful observation of the variations in the public sentiment, 
George achieved a success in his plans of personal government 
which, if we remember the relative position of the Crown and 
Parliament at the commencement of his reign, seems at first 
marvellous. In the course of this protracted struggle, the 
king had to undergo many mortifications and not a few seem- 
ingly fatal checks, but he always bent to the storm in time, 
and generally knew when and how long to maintain an in- 
flexible position. Nothing but this superior cunning and 
adroitness could have saved him from a great civil convulsion 
such as that which destroyed his predecessors in this path of 
royal aggrandizement, Charles I. and James II. George III., 
however, had concentrativeness of action as well as persistence 
of purpose, and, however tortuous his paths were at times, the 
tone and direction of his policy were always consistent, and no 
one had ever cause to suspect him for a moment of having 
become a convert to Whig constitutional notions, although he 
might tolerate for a time Whig ministers, and even (as in the 
case of his concessions to the revolted American colonies and 
his ultimate acknowledgment of their independence) adopt 
Whig measures and Whig policy. This persistent uniformity 
of sentiment, suspended in action from time to time by the 
necessities of his position, but always reappearing again to the 
383 § 384a] 
MENTAL UNSOUNDNESS. 
[book i. 
public eye, produced by degrees a great and lasting effect on 
the public mind.” 
§ 384a. Mr. A. amassed a large fortune in Philadelphia, in 
a few years, as a carriage builder. He had an extraordinary 
degree of skill, among other things, in poising and adjusting 
the springs and weights of a carriage, and in uniting, in re- 
markable perfection, beauty and lightness with strength. As 
his business increased, he would be occupied during large por- 
tions of the night, as he lay sleepless in his bed, by calculations 
as to how these adjustments could be best secured. In the 
spring of 1855, he engaged in real estate speculations, in which 
he speedily showed that his mind was becoming unbalanced. 
He negotiated, or pretended to negotiate, for a large and im- 
mensely valuable lot of ground, intimating that he expected 
it to be occupied by Queen Victoria in a visit that she was 
projecting, Then he turned his attention to live stock, taking 
measures to purchase a vast number of cows, on the plea, 
he said, of an expected rise in the price of milk. Ilis family 
petitioned for a commission of lunacy, which was granted, and 
the present writer was appointed commissioner. While the 
case was on hearing, it was agreed on both sides that to give 
every opportunity for recovery, as well as to secure greater 
certainty in the result, Mr. A. should be permitted to travel 
for a few months, under the charge of two parties in whom 
he personally had confidence. The experiment was made, and 
two remarkable facts were established. The first was, that he 
was possessed by certain insane delusions, which destroyed his 
capacity for managing his estate. The second was, that he was 
conscious that he was under watch, and. that these delusions, 
if shown to exist, would lead to the pending trial being de- 
cided adversely to his sanity. Nothing could exceed the 
adroitness and tact with which, on the one hand, he pursued 
these delusions, and, on the other hand, sought to conceal or 
mask them from his attendants. It seems that besides want- 
ing to purchase all the live stock he met, he had a fancy that 
these creatures were rational. lie accordingly addressed notes 
to “ a gray mare,” or “ a black horse, which I met in such a 
place,” and, in seeking to get these notes to their intended des- 
tination, he used the adroitness and finesse of a subtle diplo- 
384 BOOK I.] 
CONVERSATION AND DEPORTMENT. 
[§ 385 
matist. Then, when the fact was discovered, he would laugh 
it off, with the utmost coolness, as a practical joke attempted 
by him on his guardians. When the case was brought up for 
a final hearing, he not merely went successfully through the 
test of a protracted and thorough examination, but cross-ex- 
•amined the witnesses himself, and made a long, able, and artful 
speech, in which he endeavored to explain away all the facts 
that admitted of a doubtful construction. As to those which 
, were unequivocally irrational, he took a ground something like 
the following: “ You know, gentlemen of the jury, being busi- 
ness men yourselves, how acutely one who has been immersed 
all his life in a business in which he delights, and of which he 
may be justly proud, must feel when suddenly dragged from 
that business, forced to compulsory idleness, and dogged by 
men who he knows are seeking to entrap him into something 
which* will prove him a lunatic. You can easily see how, under 
such circumstances, a man might resort to imaginary business, 
such as the world resorts to in its fashionable sports and games, 
to fill the void of real. You can understand, also, how he 
might attempt practical jokes to see how far the gullibility of 
his keepers may go, and, since they wish to stare, lay traps to 
give them something to stare at.” 
Notwithstanding this defence, which for coolness, coherence, 
and appropriateness the sanest advocate could with difficulty 
have excelled, Mr. A. was found by the jury to be a lunatic, 
and was remanded by the court to the Pennsylvania Hospital 
for the Insane. There his insanity became unrestrained and 
unmistakable; and a few weeks after, during the momentary 
absence of an attendant, he killed himself by cutting his 
throat.(o) 
§ 385. Yet, notwithstanding this capacity for occasional 
concealment, the abnormal condition of lunatics will, if they 
are sufficiently watched, sooner or later break out.(p) “ To the 
manifestation,” says Greisinger, “of such (abnormal) desires, 
to the free disclosure of tendencies which are generally con- 
cealed, to certain morbid impulses, may be referred much of 
the peculiarity which distinguishes the conduct of the in- 
(o) See infra, §§ 457, 458. 
(p) See infra, § 459. 
VOL. I.—25 
385 § 386] 
MENTAL UNSOUNDNESS. 
[book i. 
sane. Each has its analogy in healthy life, partly in those 
peculiar habits and caprices which are occasionally observed 
as curious appendages to great and energetic intellects (which 
form the materials of many anecdotes relating to learned men), 
partly in the directions of the will and modes of action of the 
passions and emotions. These in detail afford materials for' 
numerous comparisons, and we find in the poets who dwell 
much on the emotional states numerous analogies by way of 
example. 
“ Thus, when the melancholic has the impulse to leave his 
home, and roam in the open air because it appears too confined 
for him, and because he expects alleviation from his state of 
internal pain by outward disquiet and change, so the same 
appears in cases of real mental pain, where the sufferer spends 
his life in the open air, or even in distant lands, in the world, 
in order to recover internal calm by outward disquiet and rest- 
lessness. Eichendorff has well expressed this disposition in 
one of his well-known songs.”^) 
The presumptions belonging to change of character and 
disposition, are subsequently discussed.^1) 
(e2) Writings. 
§ 386. The method of testing conversation and conduct 
when a question of insanity arises is discussed at large under 
other heads. It is proper here to notice of what peculiar value 
writings, emanating from the supposed insane person, are as a 
criterion. 
“ Delusions are sometimes cunningly concealed for a length 
of time,” says Dr. Winslow, “ and, notwithstanding we are 
certain that they exist, no amount of ingenuity will induce 
the patient to disclose them, particularly if made aware of the 
object of our visit. I had been, recently, to see a lady whose 
insanity was manifested in a remarkable degree m her every 
action; but after paying her several visits I found it impossi- 
ble to induce her to exhibit any one delusive impression or 
insane idea; but no sooner had I left the room, than her con- 
(q) Greisinger’s Mental Pathol., Syden. ed. (1867) § 47. 
(?') Infra, § 390 
386 BOOK I.] 
[§ 387 
PRESUMPTION FROM WRITINGS. 
versation and conduct became outrageously insane. Many 
insane persons are able to talk with apparent rationality, but 
cannot write without exhibiting their insanity. I have ex- 
amined, recently, one very remarkable case of this kind, in a 
clever, well-read, and intellectual woman, whom I had occa- 
sionally to visit. I never could detect the slightest aberration 
of mind in her conversation, and yet almost invariably, upon 
my leaving, she placed in my hands a letter (which had been 
written previous to my calling) full of the most absurd extra- 
vagances and fancies; accusing strangers, myself, and members 
of her family of being engaged in deeply concocted conspiracy 
against her property and life. Several of these peculiar and 
interesting cases are recorded, and the medical man has been 
advised, with a view of obtaining an insight into the true 
condition of the mind, to open a correspondence with the sup- 
posed lunatic, upon the principle that few persons positively 
insane can, for any length of time, write without exhibiting 
their delusions, whatever amount of self-control they are able 
to exercise over their thoughts and morbid ideas during pro- 
tracted conversation.”(r) 
§ 387. The value of letters or other writings, as tests of in- 
sanity, has been shown by abundant illustrations by Marce, in 
a monogram on this particular topic.(s) To these might be 
added a series of cases, English and American, in which the 
insanity of testators and of obligors has been in a large degree 
determined by the characters of written documents emanating 
from them. Hor is such evidence without its worth in cri- 
minal prosecutions, especially where the question is whether 
insanity is genuine or simulated. It is not merely the con- 
tents of writings that contribute to the decision of the question. 
The style and handwriting often supply important tests. 
“What experienced forensic physician,” asks Liman, (t) “ is not 
familiar with the writings of certain cases of lunatics, namely, 
the so-called querulants, writings teeming with flourishes— 
(r) Winslow on Med. Leg. Ev. 108. 
(s) De la valeur des ecrits des alienes au point de vne de la semilogie et de 
la Med. legale, 1864. 
(t) Liman’s Casper, 1871. 
387 § 388] 
MENTAL UNSOUNDNESS. 
[book i. 
words and sentences italicized singly, doubly, or trebly—with 
parentheses, interlineations, notes of quotation—writings often 
very voluminous, swollen with citations of alleged laws?” In 
other cases of lunacy are noticed peculiar modes of construc- 
tion, words and expressions both original and incomprehen- 
sible, such as are familiar to every psychological physician. 
The first stages of paralysis are characterized by flightiness 
of writing, omission of w'ords and sentences, blots, etc. But 
here, again, cautions are to be interposed. There have been 
some literary men of eminence who have been unable to 
copy a page exactly, and others who constantly leave out 
words and misspell. Proof-readers, in fact, could supply on 
this topic an interesting chapter to the curiosities of litera- 
ture, showing what eccentricities of style and penmanship 
mark .even some of the soberest thinkers. On the other hand, 
lunatics have been known sometimes to write a sequence 
of letters in which no mark of eccentricity appears. But this 
can only be for a time. Familiar letters, written at periods 
when the patient conceives himself unwatched, will in the long 
run necessarily give marks by which the experienced observer 
will detect insanity where it exists. 
(f2) Prior history. 
§ 388. This topic has already been referred to incidentally, 
and will be again noticed in another relation.(w) It is enough 
now to say that after some fluctuations, it is now the settled 
rule, that all events in the patient’s prior history, and all 
traits in his character, past or present, tending to show an in- 
sane taint in his constitution, are admissible in evidence. Ilis 
own declarations may be adduced for this purpose in his own 
defence, though when such declarations are recent, and are 
open to the suspicion of being manufactured for the purpose, 
they are to be severely scrutinized.^) 
(u) See infra, § 391. 
(«) See Baxter v. Abbott, 7 Gray, 80; Andrews1 trial (Sup. Ct. Mass, 
1868), Pamph. Rep. 124. 
388 BOOK I.] 
INSENSIBILITY OF ACT. 
[§ 389a 
(y2) Nature of the act. 
(a3) Its insensibility. 
§ 389. “In foro medico,” as is well remarked by Schiir- 
mayer,(w) “ a derangement of the mental faculties is generally 
to be presumed where the consciousness, imagination, or sen- 
sual apperception or impulse, when subjected to common and 
usual provocations, internal or external, respond in a manner 
different from what they would in a normal state. But whether 
a certain action, undergoing a criminal investigation, was the 
effect of a diseased mental activity of the subject, and com- 
mitted when he was not master of himself, is a question to be 
answered primarily from the indicia presented by the action 
itself, and then from the results of an examination of the 
accused, in reference to his physical, moral, and mental con- 
dition before, at, and after the deed in question. Illustrations 
of acts whose insensibility can be received to show their irre- 
sponsibility or incompetency of the actor, may be found in the 
old law cases of a legacy to the King of Siam, and of an ex- 
ecutory devise to all the children in a particular parish who 
should, in a specific year, be born with moles on their faces. 
The presumption of irresponsibility would, of course, attach 
with great force under similar circumstances, to criminal acts 
equally insensible, as in the case of the idiot who was found 
putting an infant brother into the pot to boil for dinner.” 
§ 389a. Liman, in his (1871) edition of Casper,(x) gives the 
case of a peasant woman, who for years had been suffering from 
mental disorders, and who had determined to kill her three 
children with her husband’s razor. For this purpose she took 
the razor a week before the time she had selected, and hid it. 
But the razor was the only one her husband possessed; and 
that he would call for it the next morning after its abstraction 
was what his wife, if sane, could have expected. This actually 
took place. It turned out she had hid the razor in an old 
press, that was always open, and which for years had had no 
key. The husband naturally found the razor, and placed it 
(W) § 522. See infra, § 396. 
(«) Berlin, 1871, p. 427. 
389 § 390] 
MENTAL UNSOUNDNESS. 
[book i. 
on the shelf where it generally lay, and from which the un- 
happy woman took it the moment before the assault. 
§ 3896. But two cautions are to he observed in regard to the 
weight of this kind of testimony. Maniacs (as distinguished 
from imbeciles) frequently construct, in furtherance of their 
insane schemes, plans of consistent ingenuity. As an illus- 
tration of this may he mentioned the case of Billman, an 
undoubted maniac, who contrived a noose, on the inside of the 
usual aperture at the top of the door of his cell through which 
the attendants were in the habit of looking or handing in 
food;—very ingeniously succeeded in inducing an attendant to 
put his head through, and then caught him in the noose; and 
then, finding this device unsuccessful, subsequently enticed the 
same attendant, on plea of sickness, into the cell, killed him, 
and then changed clothes with him ;—and after this so skil- 
fully adopted the manner proper for the purpose, that he walked 
away unsuspected, and was not arrested until he was out in 
the street. And cases are numberless in which persons laboring 
under insane delusions have executed plans based on these 
illusions with the most consummate adroitness and persistency. 
So the converse holds good, that sane persons, when working 
out even the coolest plans of mischief, almost invariably drop 
a stitch or expose a blot, by which discovery is afterwards 
caused.^1) Boynton, for instance, in a case hereafter men- 
tioned, prepared his plans of assassination with singular 
caution, but wadded his gun with a piece of paper, whose 
fragments were discovered at the place of the murder, and 
which led to his identification. If this is the case with de- 
liberate crimes, eminently is it so with crimes committed in 
passion. Such crimes are often as insensible in their mode of 
execution as any that the most raving maniac could perpetrate. 
(63) Its incongruity with antecedents. 
§ 390. "When a man of uniformly mild character boldly and 
openly commits a deed of blood; when a woman of previous 
purity gives way to lasciviousness; when a long course of irre- 
proachable honesty and exactness is suddenly broken in by 
390 
(xl) See fully, infra, § 782. BOOK I.] 
INCONGRUITY OF ACT. 
[§ 392 
profligacy; or domestic peace, by unprovoked ebullitions of 
violence, or by expressions of distrust to those formerly most 
loved or most trusted,(y) it is proper to consider how far un- 
soundness of mind may not be considered as the cause. 
§ 391. It has already been that the examiner, 
in order to give a conscientious and correct report, must ac- 
quaint himself with the plaintiff’s history, so far as this is prac- 
ticable. In Prussia this is required by statute ;(a) and, however 
much a witness, in stating the sources of information, may be 
restricted by the Anglo-American rules of evidence, his testi- 
mony, by the same rules, will be shorn of much of its force 
if it does not rest on an adequate foundation of fact. Relations, 
friends, servants, above all, family medical advisers, may well 
be expected to render much information, upon which a forensic 
physician, charged with the solemn duty of giving an opinion 
as to sanity, may base just conclusions. Put at the same time 
much caution is necessary in securing such renditions. The 
family of a patient may have very strong reasons for either 
believing or disbelieving his sanity. And in particular is the 
evidence of mere occasional visitors to be jealously scrutinized. 
To hundreds of such the patient may have appeared sane; and 
yet the negative testimony derived from such is more than 
counterbalanced by proof of some positive insane act committed 
by the party in the privacy of his family, or in secret, when he 
believed himself to be unsuspected by human eye. Public or 
pre-notified examinations are entitled to little comparative 
weight. They always throw the patient on his guard. They 
produce in him at the best a non-natural psychological state, 
and they give both stimulus and opportunity to the sane to 
pretend to be insane, and to the insane to pretend to be sane. 
§ 392. Eminently, therefore, is it necessary to have a know- 
ledge of a patient’s past history. That which is sanity in one 
man, and which is the state of mind which his antecedent 
necessitate, would be insanity in another. A man, for in- 
stance, is conscious of some secret guilt, and he shelters himself, 
(y) See Medecine Legale, par M. Orfila, tome i. p. 389. 
(s) Supra, § 388. 
(a) Liman’s Casper, ed. 1871, p. 411. 
391 § 394] 
MENTAL UNSOUNDNESS. 
[book I. 
in contrition and self-loathing from the public eye in morbid 
seclusion; or he flies from shadows; or he resorts to violent 
action to cover up the traces of his crime. Or he is placed in 
a position in which eccentricity if not incoherence may seem 
essential to the maintenance of his rights. To penetrate the 
mask of Hamlet’s madness, for instance, it is necessary to un- 
derstand Hamlet’s history. To explain Cain’s wild flight it is 
necessary to understand Cain’s guilt. 
§ 393. Was, then, the alleged insane act one that stood out 
in isolated insularity in the patient’s history, or was it one of a 
sequence of morbid though sane and therefore criminal trans- 
actions ? Here, indeed, if the question be one relating to the 
mere proof of guilt, insanity being disentangled from the issue, 
the Anglo-American practice differs essentially from that 
which obtains on the continent of Europe. By the former in 
criminal trials, it is not permitted for the prosecution to bring 
in evidence of the defendant’s prior character; and character 
only comes in when invoked by the defendant itself. By the 
latter, the defendant’s whole history, so far as it is supposed 
to throw light on the case, is introduced at the outset by the 
prosecution.(6) But when the issue is insanity, the rule, ac- 
cording to the Anglo-American practice, changes. The reasons 
are, first, because insanity is usually set up by the party himself, 
or his representatives, and from its nature drags into the issue 
the party’s whole life. Secondly, insanity is chiefly to be 
proved or disproved by facts collected from the party’s history. 
His counsel may put in evidence prior alleged acts of insanity, 
or may rely on the insulated or sporadic character of the par- 
ticular act to show its insane type. The contesting party 
may reply by showing that the alleged insane acts were not 
exceptional and abnormal, but were the consequences of vol- 
untary and intelligently indulged passions, or of sane design.(c) 
§ 394. That there are such things as isolated and abnormal 
acts, which are even vehemently foreign and antagonistic to 
the perpetrator’s history and character, it needs but a slight 
acquaintance with the literature of this topic to show. Of 
such may be mentioned as an illustration, the case of an af- 
(b) Wharton’s Conf. of Laws, § 892. 
392 
(c) See supra, § 144. BOOK I.] 
INCONGRUITY OF ACT. 
[§ 396 
fectionate and most exemplary father, hereafter to he more 
fully noticed, who suddenly, under the influence of a sharp 
but crushing attack of melancholia, accompanied by a delusion 
that there was impending on the household a ruin only to be 
escaped by death, killed one of his children and attempted the 
life of another. Two similar cases are reported by Dr. Liman.(d) 
Even when an alleged insane act is a part of a sequence of 
alleged acts of intelligent guilt, it is proper to inquire whether 
the whole sequence may not be attributed to a diseased brain. 
Here, however, come in the questions of motive, and of conse- 
quentially, which are elsewhere specially discussed.(e) 
§ 395. It has been already observed that physical diseases, 
especially those of a nervous type, are particularly worthy of 
consideration in this repect; but it is at the same time 
always to be remembered that there are no physical conditions 
which necessitate a specific moral act. Valuable indeed are 
the contributions to this branch of psychology which have 
been made by Morel,(/) Maudesley, and Ray. But we must, 
nevertheless, accept as at present conclusive the assertion 
of Liman, in his late authoritative exposition of Casper,{g) 
that the weight of authority both psychological and psycho- 
pathical is that we have no grounds to assume that in insanity 
disease stereotypes itself in act. Diagnosis of physical disease 
may establish a •probability, but nothing more. It is always a 
matter of admissible evidence; but without positive proof of 
mental disturbance it is entitled to no controlling effect.(A) 
§ 396. It should be noticed, also, that a man of unsound 
mind generally chooses the most injudicious time and place for 
the perpetration of the act, although the cunning and address 
with which an offence was committed do not exclude the sup- 
position of derangement,(i) and repels with indignation every 
intimation of his insanity; in many cases asserting that he 
committed the crime with perfect consciousness, and when en- 
(d) Liman’s Casper, ed. 1871, cases 287, 289. 
(e) See §§ 399-406. 
(/) Traits de la M6d. L6g. Paris, 1866. 
(g) Berlin, 1871, p. 420. (h) See supra, §§ 146-150. 
(t) See M6d. Leg. J. Briand, p. 553. Paris, ; and see supra, §§ 361, 
389,390. 
393 § 398] 
MENTAL UNSOUNDNESS. 
[book i. 
tirely in his senses, and disregarding all that is said to ex- 
tenuate it.(j) 
§ 397. M. Falret thus speaks of the change of character, 
which is a prominent symptom of commencing insanity: 
Sometimes, instead of a simple exaggeration, it is a veritable 
transformation that the character undergoes. Avarice gives 
place to prodigality, piety to irreligion, modesty to obscenity, 
temperance to drunkenness, the love of truth to deceit, the 
most tender and tried affections to indifference and even hate.(s) 
§ 398. A frequent result is the neglect of the duties due to 
family and society, disorder of conduct and derangement of 
affairs, and those ebullitions of irritation and violence which 
momentarily and sometimes forever destroy the harmony’ex- 
isting between relations and friends. The changes of conduct 
observable in the incubation of mental diseases are infinite; 
the deranged show a neglect or an unaccustomed zeal for their 
customary occupations, and for the cares and attentions or 
family, and for social customs and duties. Patients who were 
before sedentary in their habits, indulge in long absences from 
their dwellings. Some show an indifference and neglect for 
the persons and things they loved the most, and seek after 
objects which they did not like. Others overwhelm you with 
demonstrations of obligingness and devotedness. Generally 
those thus affected are absent and forgetful; they do not re- 
member what they have done or what they were about to do 
an instant before, and then seem much surprised when these 
frequent absences of mind are pointed out to them. Their 
conduct abounds in contrasts. Those who were orderly become 
dissipated ; those who were careful in business now enter upon 
the most dangerous speculations, and they addict themselves 
to play, drinking, and sexual excesses, and in fact to all the 
vices which were before unknown to them.(sx) 
(j) Compare Friedreich, Handbuclx der gerichtsaertztlichen Praxis. Yol. i. 
p. 370. 
(s) See supra, § 361. 
(«*) Lecjons Cliniques sur l’Alienation Mentale, M. Falret. 8th Leqon, p. 
215. Paris, 1854. Supra, § 378. 
394 BOOK I.] 
MOTIVELESSNESS OF ACT. 
[§ 399 
(c3) Its motivelessness.(t) 
§ 399. “ It is assumed or implied,” says Dr. Taylor with great 
justice, “that sane men never commit a crime without an ap- 
parent motive, or one of delusive nature only in the perpetra- 
tion of a criminal act. If these positions were true, it would 
be very easy to distinguish a sane from an insane criminal, but 
the rule wholly fails in practice. In the first place, non-dis- 
covery is here taken as a proof of the non-existence of a motive; 
while it is undoubted that motives may exist for many atro- 
cious criminal acts without our being able to discover them— 
a fact proved by the numerous recorded confessions of criminals 
before execution, in cases of which, until these confessions were 
made, no motive for the perpetration of the crime had ap- 
peared to the acutest minds. In the case of Courvoisier, who 
was convicted of the murder of Lord William Russell, in June, 
1840, it was the reliance upon this alleged criterion before the 
secret proofs of guilt accidentally came out, and led many to 
believe he could not have committed the crime; and the ab- 
sence ‘of motive’ was urged by his counsel as the strongest 
proof of the man’s innocence. It was ingeniously contended, 
‘ that the most trifling action of human life had its spring 
from some motive or other.’ This is undoubtedly true, but it 
is not always in the power of man untainted with crime to 
detect and unravel the motives which influence criminals to 
the perpetration of murder. Ho reasonable motive was ever 
discovered for the atrocious murders and mutilations perpe- 
trated by Greenack and Good; yet these persons were very 
properly made responsible for their crimes. On the trial of 
Francis for shooting at the Queen, the main ground of the 
defence was, that the prisoner had no motive for the act, and 
therefore he was irresponsible ; but he was convicted. It is 
difficult to comprehend under what circumstances any motive 
for such an act as this could exist; and therefore the admission 
(t) See supi'a,% 302. Medecine Legale, J. Briand, p. 548-49. Paris, 1852. 
Pinel, Alienation Mentale, p. 157. Etudes Medico-Psychologiques sur ’1 Alie- 
nation Mentale, par L. F. E. Renaudin. Paris, 1854, chap. 18th, p. 779. 
See also Lemons Cliniques de Medecine Legale, M. Falret, 2d, pp. 55- 
67. Paris, 1854. Also Medecine Legale, par Orfila, tome i. p. 304. Paris, 1840. 
395 § 400] 
MENTAL UNSOUNDNESS. 
[book I. 
of such a defence would have been like laying down the rule, 
that the evidence of the perpetration of so henious a crime 
should, in all cases, be taken as a proof of the existence of an 
irresponsible state of mind. Crimes have been sometimes 
committed without any apparent motive, by sane individuals 
who were at the time perfectly aware of the criminality of 
their conduct. No mark of insanity or delusion could be dis- 
covered about them, and they had nothing to say in their 
defence. They have, however, been very properly held respon- 
sible. On the other hand, lunatics confined in a lunatic asylum 
have been known to be influenced by motives in the perpetra- 
tion of crimes. Thus they have often murdered their keepers 
in revenge for ill-treatment which they have experienced at 
their hands.(w) Thus Farmer was acquitted as insane, while 
the clear motive for homicide was revenge and ill-feeling. In 
another case the act of murder was perpetrated from jealousy.(v) 
On the whole, the conclusion with respect to this assumed cri- 
terion is, that an absence of motive may, when there are other 
strong evidences of insanity, favor the view of irresponsibility 
for crime; but the non-discovery of a motive for a criminal 
act cannot of itself be taken as any proof of the existence of 
homicidal monomania in the perpetrator. It is right to state, 
however, that the law invariably acts on the humane principle, 
that the absence of a sufficient motive forms a strong pre- 
sumption of innocence—the presence of one is no proof of 
guilt.’’(w) 
That apparent motivelessness is sometimes an accompaniment 
of sanity, will be noticed hereafter.^1) 
§ 400. It has been already said,(i«2) that it is the duty of the 
psychological expert, before testifyingon the question of sanity, 
to explore the motives which led to the perpetration of the act 
or acts under examination. No act is committed without 
motive. This motive may be sane or insane. But so complex 
is human nature—so subtle are the influences which lead to 
(u) See tlie case of Queen v. Farmer. York Spring Assizes, 1837. 
(v) Reg. v. Goule. Durham Summer Assizes, 1845. 
(w) Taylor’s Med. Jurisprudence, pp. 578, 679. 
(w1) Infra, § 782. (ws) See supra, § 302, 
396 BOOK I.] 
MOTIVELESSNESS OF ACT. 
[§ 401 
human actions—that for the assignment of true motive it is 
requisite not only to have an experimental knowledge of the 
human heart in general in its manifold phases and possibilities, 
but to have a special acquaintance with the history of the 
person whose sanity is under investigation. In making such 
a study, the following suggestions will he of use. 
(a4) § 401. It is rare that the motive to an act is simple. There 
is generally a confluence of motives, for and against a parti- 
cular step; and the will may remain in equipoise until some 
trifle, such as a prejudice scarcely acknowledged even by self, 
or an omen, or a lot, turns the scale. So far, also, from parti- 
cular motives acting on men with uniform force, they vary in 
their effects as materially as do the characters of those on 
whom they operate. What on one man has an overwhelming 
force influences other men but slightly. What is rational to 
one man is highly irrational to another. Sir Robert Walpole, 
for instance, was a statesman of peace, and the war with Spain, 
which he was goaded to undertake, was revolting to his whole 
system of policy; it could not be fitted into that system of 
policy; and was to him irrational. Lord Chatham, on the 
other hand, was a statesman of war; a patient peace policy 
was to him so unnatural and incongruous that when he at- 
tempted it he was capricious, if not imbecile; while he carried 
on war with an adventurous and bold hand, and displayed in 
its conduct the highest gifts of genius. To him, therefore, it 
was as rational to flash forth immediate war on a supposed 
national affront, as to Walpole it would have been gravely to 
consider the issue, and, if it could be done honorably, to cause 
the removal of the offence by arts of peace. Yet, for unjust 
war, when it occurred, Walpole and Chatham would have been 
equally responsible to public opinion, though the first em- 
barked in such war from a weak concession to rivals, the 
second from personal passion and fire. So. to take a case that 
occurred in Philadelphia some years since, a young man named 
Alexander, from one of the southwestern States, educated in 
the most fantastic school of chivalry, received a supposed in- 
sult in a broker’s shop, and instantly shot the assailant dead. 
To him, the act, on his code, was rational; it was the natural 
result of his principles, which he had intelligently accepted; 
397 § 402] 
MENTAL UNSOUNDNESS. 
[book i. 
he was as morally responsible to the law of the land, though 
it may be in a different shade of guilt, as would be the assassin 
who, on the principle that he will get what he can, kills the 
victim whom he plunders, or the duellist who from cowardice 
shivers into a duel. Insanity in neither case is to be presumed ; 
there is intelligent motive, though motive deriving its force 
from the character on which it acts. So also in a parallel 
drawn by Liman.(;r) A wretch named Markmann saw in the 
street an old woman carrying a basket, in which was a clean 
linen shirt. He wanted to have it; he followed the woman to 
rob her; he struck her; and from the blow she died. H., an 
educated and refined young officer, was struck on the face 
suddenly, in a public garden, in presence of his intended wife 
and a large crowd of spectators; and immediately shot the 
assailant to the heart. Yet Id. would not have been impelled 
to homicide by desire to rob, nor Markmann by a desire to 
avenge wounded honor. 
§ 402. In each case, however, the motive that operated was 
one that was adequate according to the defendant’s own lights. 
It is necessary, therefore, in order to determine upon the mo- 
tivelessness of an act, for the expert to place himself at the point 
of vision occupied by the person whose act is under investiga- 
tion. We have no right to establish for the causa facinoris an 
arbitrary motive such as would in reference to dispassionate 
men be rational. There are no dispassionate men. Each man 
has his own idiosyncrasies which, though more or less oper&- 
tive on his judgment, are consistent with sanity. Eminently 
is this the case with wills. A man of high honor may be pe- 
peculiarly sensitive as to a child’s unworthiness, and from this 
disinheritance may spring. Another may disinherit a relation 
for an offence, trivial in grade, and perhaps imaginary; yet, 
if there be no fraud or insanity proved aliunde, the will is 
good.(y) So also as to the causa facinoris in criminal cases. 
There is no minimum below which a motive, in the eye of the 
law, ceases to exist. Murders have been committed by the 
abject and avaricious for coppers; while men almost stifled 
with wealth have been known to seek to augment such wealth 
(x) Liman’s Casper, ed. 1871, p. 422. 
(y) See supra, §§ 83-86. 
398 BOOK I.] 
MOTIVELESSNESS OF ACT. 
[§ 404 
by perjuries and frauds. Irivial motives, as they are some- 
times called, are, considered by themselves, proof rather of a 
mind familiar with crime than of lunacy. 
(64) § 403. Nor can ice dare, as is sometimes done, to withdraw 
instinctive passion from the range of responsible motives. As has 
been strikingly stated, in an argument elsewhere noticed,(2) the 
question is, is the motive, in respect to the individual under 
investigation, one that can be overbalanced by fear of punish- 
ment ? Is, for instance, a man who flies into transports of 
rage or lust capable of moderating these transports when the 
fear of punishment or disgrace is held steadily and conspicu- 
ously before his eye? If so, the law must threaten such 
punishment and disgrace as the necessary consequence of the 
indulgence of such passion; and, where it threatens, it must 
execute. 
(c4) § 404. Nor can we, with any safety to the community, or any 
judicial consistency, declare as motiveless those offences which are 
stimulated by no other apparent purpose than that of outraging law, 
or that of inflicting upon others pain or disgrace.{a) It is true 
we may connect such offences in their lighter phases with the 
desire to attract attention, or to excite surprise, or to gratify 
curiosity as to how others will behave in certain absurd rela- 
tions in which they may be placed. Under this head may be 
mentioned the police adventures which Cruikshank has re- 
corded as fashionable among men of the town in the days of 
the regency, and the practical jokes, sometimes very cruel, 
designed by Theodore Hook. But there is another class of 
offences, based simply on the love of malevolent action, and 
which, without having even the excuse of vanity or curiosity 
advanced for the last, are prompted by such malevolence pure 
and simple, and yet which the law regards as in the highest 
degree criminal, and the objects of its most signal penalties. 
In January, 1872, we hear of a prosecution instituted against 
some laborers in a Pennsylvania mining town who poured 
petroleum on a negro boy and then set fire to him; and with 
this may be grouped the case of a miscreant mentioned by 
Bottex, who threw a boy, a stranger to him, in the water, 
(2) See supra, §§ 146-153, 188, 189. 
(a) See supra, §§ 163-189. 
399 400 
MENTAL UNSOUNDNESS. 
[book i. 
simply to watch his drowning struggles; of Earl Ferrars, who, 
in cool malignity and with no imaginable other motive, killed 
his steward; of the Count of Charleroi (a Bourbon) who, 
among other atrocities, out of “ sport” shot one of his servants, 
from the roof of a house, as he would have shot a wild beast; 
of the widow Zwanziger who poisoned speculatively; of the 
fiendish mother told of by Pohlman, who, after a series of 
cruelties, shut up her child in a room with a nest of wasps. 
These cases, if we limit motives to lust, to avarice, to revenge, 
to passion, to desire to secure safety, are motiveless. They 
may, as has been well remarked, pass over a wide range, from 
the boy who malevolently tortures a kitten, to Tiberius who 
malevolently tortures a slave. They may spring simply from 
the desire, more or less powerful, to inflict pain. Yet they are 
peculiarly amenable to penal justice for two reasons. First, 
being what is commonly called “ motiveless,” they cannot be 
warded off by any amount of personal, voluntary precaution. 
We can defend ourselves by bolts from the burglar; we can, 
by prudence, keep out of the range of the predatory and 
deliberate assassin; we may cause the arrest of one by whom 
our life is threatened. No precaution, however, is a defence 
against the purely malevolent criminal, who fires a house, or 
shoots a stranger, simply to watch the pain he inflicts. The 
only hand that can intervene is that of the law. Secondly, 
such offenders are peculiarly open to the influences of fear. 
They are either thoughtless or cowardly. To check them, it 
is essential for the law to announce to them in terms unmis- 
takable, “ this thing will be signally punished.” This, in fact, 
is the only motive by which they can be restrained; and by 
this, when the motive is presented to them, and they believe 
in it, they are restrained. But what the law thus announces, 
it must execute. Nor can it speak, to such characters, except 
by the example of punishment inflicted upon others, and 
therefore by punishment imminent to self.(6) 
(5) Cases of homicide, where the motive was mere malevolence, and desire 
to inflict pain, and yet where this motive was one which fear was able to 
control and subdue, are given by Feuerbach, Aktenmiissige Darstellung Mer- 
kewiirdiger Verbreclien, Giessen, 1828, and by Liman, in his edition to 
Casper, Berlin, 1871, p. 425. 
400 BOOK I.} 
NEGLECT TO ESCAPE. 
[§ 406 
§ 405. Yet, making all these deductions, there is such a 
thing as a legally motiveless act. When, without malevolence, 
and without any benefit or gratification to self, an act is done, 
the perpetrator cannot be regarded as intentionally and speci- 
fically criminal. 
(d3) Neglect to escape.{c) 
§ 406. Exculpatory subterfuges, and attempts to escape, if 
designed before the commission of the offence, go a great way 
to show that the offender was conscious that the intended act 
was wrong. When, indeed, such preparations are intelligently 
and consistently made, very strong proof of insanity must 
exist to overthrow the presumption of sanity they supply.(eT) 
In the case of Christiana Edmunds, which is elsewhere fully 
noticed, this was the chief difficulty with which the counsel 
for the defence had to struggle. The charge was poisoning; 
and it was shown that she had taken peculiarly skilful means, 
both before and after the guilty act, to throw its burden upon 
others. Yet it must be remembered, that, when a mind other- 
wise intelligent is controlled by an insane delusion, prepara- 
tions the most rational may be made to gratify this delusion, 
and subsequently to defend its gratification. Several cases 
have just been cited to illustrate this; and the discipline of 
lunatic asylums is based upon the existence of such capacity, 
and upon the moral sensibility displayed by such devices to 
avoid detection. But, after all, it is rare that some insane 
freak does not ultimately, in cases of true insanity, exhibit 
itself after the consummation of the act. In a melancholy 
instance elsewhere noticed, a gentleman who had planned and 
executed, under an insane delusion, the killing of one of his 
children, made his escape, it is true, successfully, but dressed 
himself simply in his night-clothes, and was hence at once 
arrested. To this effect, also, is a case reported by Dr. Liman. 
An upholsterer named Schulze, who, under a similar delusion, 
killed his children whom he most tenderly loved, took the 
pains, before the act, to send out of the house, on an errand, a 
(c) See Wills on Circumst. Ev. 70; Best on Presump. 322; Wharton’s 
C. L. § 826. 
(d) §§ 168-170. 
vol. i.—26 
401 402 
MENTAL UNSOUNDNESS. 
[book i. 
woman who otherwise would have been a witness of the act. 
But the pretext on which he sent her was the delivery of a 
letter to a clergyman whom he did not even personally know. 
When the letter was opened, it was found to contain simply the 
words: “Eu. Wohlgeboren Schulze”—your honorable Schulze. 
§ 407. In cases where the sanity of a testator or obligor is 
contested, and where the point is the existence of an insane 
delusion, little can be inferred from the skill and caution with 
which such delusion is indulged. A testator, for instance, 
under the delusion of infidelity or persecution from his nearest 
and most devoted relatives, has been known most artfully to 
conceal this delusion until, as in one or two reported cases, it 
is drawn from him by his legal adviser when he makes his 
will. So in the case of a gentleman against whom a com- 
mission of lunacy was taken out in Philadelphia some years 
since, and in which the evidence of insanity was incontestable, 
one of the delusions was that animals were intelligent, and 
capable of correspondence. He wrote letters to cows, for in- 
stance, which letters he showed the utmost adroitness in con- 
cealing, and which he afterwards attempted to excuse as a 
joke. Yet the precautions he displayed in mailing the letters, 
while they showed his sense of the risks to which such wild 
acts exposed him, showed also the reality of the delusion by 
which he was beset. 
§ 408. Yet here also the converse, especially in criminal 
cases, fails. Prearranged subterfuges infer, no doubt, a con- 
sciousness that the act in question is reprehensible; but the 
absence of such subterfuges does not prove a consciousness 
that such act was innocent.^1) For the sane culprit is often 
not in a position in which such preparations can be made. 
Crimes committed in sudden passion, in particular, are from 
their very nature incapable of being thus antecedently shielded. 
§ 409. Equally complex, though essentially dissimilar, are 
the questions that arise when the effort is to draw the pre- 
sumption of sanity from attempts at subterfuge or escape after 
the consummated offence. Men, sane and insane, innocent and 
guilty, instinctively seek to escape danger. Innocent men, 
(tf‘) Infra, § 782. 
402 BOOK I.] 
FORGETFULNESS. 
[§ 410 
charged with crime, have sometimes in quasi insanity fled their 
country, and resorted to frantic, but tortuous and even guilty 
efforts to turn upon others the impending shock. This, in 
several well-known cases in the United States, has been the 
result of the attempt to black-mail men who, as it transpired 
ultimately, were entirely innocent, but who were driven almost 
to delirium by the attack. On the other hand, persons who, 
either from revenge, or jealousy, or political enthusiasm, com- 
mit crimes whose consequences they know they cannot evade, 
and in whose character they glory, may resist this instinct, 
and boldly surrender themselves after the successful commission 
of the act. Numerous cases of this kind are found in trials 
for homicide through jealousy; and among those where the 
impulse was political fanaticism may be mentioned that of 
Ravaillac, who, after assassinating Henry IV., exultingly de- 
clared his guilt. Yet it must not be forgotten that in cases of 
imbeciles, and those acting under certain phases of insane de- 
lusion, indifference to personal safety would, in such cases, be 
a necessary incident of freedom of consciousness of wrong-doing. 
(e3) Forgetfulness as to act. 
§ 410. Here we may notice another feature which accom- 
panies insane action, viz., subsequent obliviousness as to the entire 
occurrence.(e) Several curious instances are given in the books 
in which, after acts of marked and even atrocious lawlessness 
committed by the insane, there was an utter forgetfulness of 
the event, or a remembrance of it only as something dreadful 
that occurred in a dream. The sane man sometimes trembles 
on waking, lest something he had dreamed of doing, he had 
really done. The insane, after committing the act when awake, 
afterwards shivers at it as if it was only a dream, yet a dream 
which he shudders to recall. Such was the state of Mary 
Lamb, after killing her mother, of which she had only a 
blurred consciousness as of something she had dreamed of; 
and not rare are the cases in which maniacs, in lucid intervals, 
have asked with cries of terror, as their first inquiry, for one 
whom in their paroxysm they may have destroyed. This, we 
(e) See infra, § 449. 
403 § 412] 
MENTAL UNSOUNDNESS. 
[book i. 
are told by Dr. Liman, is peculiarly the case after injuries of 
the brain, and after the transitory mania of persons affected 
with epilepsy, hysteria, uterine disease, acute intoxication, 
sleep-drunkenness, and unconsciousness produced by anemia of 
the brain. Of cases of such dreamy confusion and of misty 
terror at a vague but appalling recollection, we have illustra- 
tions in trials, of which several are reported in the United 
States, of mothers who, when in puerperal fever, killed their 
children. Several cases where this defence was psychologically 
investigated are given in Liman’s Casper.(/) 
§ 411. Yet, even here, when such oblivion is set up, there 
are cautions to be interposed. It is always a matter of grave 
suspicion when the party under examination professes to have 
no recollection of the event.(f1) Psychologically, such a sup- 
position of two utterly distinct consciousnesses is only probable 
when there is a loss of memory as to the whole section of time 
in which the event in question is contained. There are there- 
fore grave reasons to believe the defence is feigned, when, 
before the examination is instituted, and when the patient 
thinks himself unobserved, he betrays a recollection of col- 
lateral incidents embraced in the same scope of time. 
C. From what mental unsoundness is to be distinguished. 
(a1) Emotions, (y) 
§ 412. Briand says, that from the height of passion to mad- 
ness is but one step, but it is precisely this step which decides 
the quality of the act. It is important then to know exactly 
the precise characteristics of the passions and of insanity. But 
here science fails, for it must be admitted that we are unable 
to point out the place where passion ends or where madness 
commences.(/i) M. Orfila draws the following distinction 
between a man acting under the impulse of the passions and 
(/) Vol. ii. Cases 824, 325, 329. (/>) Infra, § 449. 
\g) See particularly Aristotle’s delineation of the Passions in the Second 
Book of his “Rhetoric;” and see also L. Krahmer, Handbuch der gericht. 
Med. Halle, C. A. Scliwetschke, 1851, § 126. Observe, also, an essay by 
Leigh Hunt, in his Miscellanies, p. 51. 
(7i) M<$d. Leg. p. 551. Paris, 1852. See also infra, § 816, on the psychical 
indications of crime. 
404 BOOK I.] 
REMORSE. 
[§ 413 
one urged on by insanity. The mind is always greatly troubled 
when it is agitated by anger, tormented by an unfortunate 
love, bewildered by jealousy, overcome by despair, humbled 
by terror, or corrupted by an unconquerable desire for ven- 
geance, etc. Then, as it is commonly said, a man is no longer 
master of himself, his reason is affected, his ideas are in dis- 
order, he is like a madman. But, in all these cases, a man 
does not lose his knowledge of the real relation of things; he 
may exaggerate his misfortune, but this misfortune is real, 
and, if it carries him to commit a criminal act, this act is 
perfectly well motived. Insanity is more or less independent 
of the cause that produced it, it exists of itself; the passions 
cease with their cause, jealousy disappears with the object that 
provoked it, anger lasts but a few moments in the absence of 
the one who by a grievous injury gave it birth, etc. Violent 
passions cloud the judgment, but they do not produce those 
illusions which are observable in insanity. They excite for a 
moment sentiments of cruelty, but they do not produce that 
deep moral perversion which influences the madman to sacrifice, 
without motive, the being he most cherishes, (i) 
(a2) Bemorse. 
§ 413. “"When remorse,” says Cogan, “is blended with the 
fear of punishment, and rises to despair, it constitutes the su- 
preme wretchedness of the mind.”(y) And of all stages of 
passion, remorse is the one most liable, when the conscience is 
acute, to be mistaken for insanity itself. Of this we have a 
very melancholy case in our own local experience. A young 
gentleman of peculiarly nice sense of honor and keen sensi- 
bility, killed an intimate and beloved friend in a duel, hastily 
forced on by his own undue susceptibility. For twenty years 
he h.as never ceased to stride to and fro the chamber in which 
he has been confined, firing an imaginary pistol at intervals, 
and then throwing himself back with the acutest expression of 
misery. In this instance remorse has run into madness. In 
others it has made but a slight progress in that direction; in 
(t) Med. Leg. tome i. p. 407. Paris, 1848. This passage adopted in 
McFarland’s Case, 8 Abbott (N. Y.) Prac. C., N. S. 69. 
O') Cogan on the Passions, yol. i. chap. 2, sec. 3. 
405 §414] 
MENTAL UNSOUNDNESS. 
[BOOK I. 
others entire sanity and responsibility remain. And yet in all 
instances it presents symptoms which it is well for the forensic 
physician to examine in relation to their moral as well as their 
psychical origin. 
§ 414. Ilarpsfield, in his Ecclesiastical History, gives ns the 
following graphic report of the dying words of Cardinal Beau- 
fort, which is a powerful illustration of the effect of this passion: 
“ And must I then die! Will not all my riches save me ! I 
could purchase the kingdom, if it would save my life. What! 
is there no bribing of death ? When my nephew, the Duke of 
Bedford, died, I thought my happiness and my authority 
greatly increased: but the Duke of Gloucester’s death raised 
me in fancy to a level with kings, and I thought of nothing 
but accumulating still greater wealth, to purchase at last the 
triple crown. Alas! how are all my hopes disappointed! 
Wherefore, 0 my friends, let me earnestly beseech you to pray 
for me, and recommend my departing soul to God!” A few 
minutes before his death his mind appeared to be undergoing 
the tortures of the damned. He held up his two hands, and 
cried—“Away! away! why thus do you look at me ?” This 
same scene in the Cardinal’s chamber is thus still more vividly 
depicted by Shakspeare:— 
Enter King Henry, Salisbury, and Warwick. 
King lien. How fares my lord ? speak, Beaufort, to tliy sovereign. 
Cardinal. If thou be’st death, I’ll give thee England’s treasure, 
Enough to purchase such another island, 
So thou wilt let me live, and feel no pain. 
King Hen. Ah, what a sign it is of evil life. 
When death’s approach is seen so terrible ! 
Warwick. Beaufort, it is thy sovereign speaks to thee. 
Cardinal. Bring me unto my trial when you will; 
Died he(&) not in his bed ? where should he die ? 
Can I make men live, wlie’r they will or no ?— 
Oh ! torture me no more, I will confess.— 
Alive again ? then show me where he is; 
I’ll give a thousand pounds to look upon him. 
He hath no eyes, the dust hath blinded them. 
SCENE—The Cardinal's bed-chamber. 
(k) Meaning the Duke of Gloucester. 
406 BOOK I.] 
REMORSE. 
[§ 415 
Comb down liis hair; look ! look ! it stands upright, 
Like lime-twigs set to catch my winged soul!— 
Give me some drink ; and bid the apothecary 
Bring the strong poison I bought of him. 
King Hen. O thou eternal Moyer of the heavens, 
Look with a gentle eye upon this wretch ! 
Oh, beat away the busy meddling fiend 
That lays strong siege unto this wretch’s soul!— 
And from his bosom purge this black despair ! 
Warwick. See, how the pangs of death do make him grin. 
§ 415. Schiirmayer’s (l) views on this point are of peculiar 
interest, as indicating the conservative jealousy which guards 
against that involuntary dissimulation on the patient’s part 
which makes real and yet at the same time responsible emotions 
so difficult to distinguish from irresponsible disease. “ Remorse,” 
he says, “ often affects the mind so powerfully as to assume the 
appearance of insanity. The smothered self-reproach of the 
criminal sometimes expresses itself in the shape of deep dejec- 
tion, and sometimes in that of petulance and irritability. 
Almost every defendant who is guilty will be seen to lapse at 
least periodically into a deep reverie, with the eyes staring 
into vacancy. The most consummate villains alone are exempt 
from such feelings. Criminals generally endeavor to suppress 
the voice of conscience, because they fear to be betrayed by it. 
But this very reaction is perfectly legible in their faces, gestures, 
and general bodily condition. Under these circumstances the 
qualms of conscience frequently assume the appearance of 
disease. The accused, particularly if in confinement, does not 
sleep at night for weeks, and consequently looks pale and hag- 
gard, loses his appetite, and speaks with hesitation, and some- 
times with trembling. "When this condition reaches a point 
of great intensity, the guilty is visited by visions and halluci- 
nations ; avenging angels appear to him, or evil spirits, phan- 
toms, or the shades of the dead and injured. Add to this a 
little superstition, and the victim is firmly convinced of the 
reality of these apparitions, and regards them as punishments 
sent from heaven. In the course of the trial itself, these 
symptoms are less perceptible; and generally the culprit 
(i) See Gericlit. Med., § 519. 
407 §415] 
MENTAL UNSOUNDNESS. 
[book i. 
hesitates to tell an official person what he suffers in seclusion, 
but the struggle within frequently breaks out in spite of 
his efforts, or at least interferes with the coherence of his 
speech. In such cases a man, perfectly hale in mind and 
body, will frequently talk at random, or at least express 
himself in so confused and stupid a manner as to induce doubts 
of his sanity. It is remarkable, that those who confess their 
guilt are subject to these attacks equally with those who deny 
it. It might be supposed that the criminals who have made a 
public confession would experience a regenerating sense of re- 
lief in consequence of having removed a load from their minds; 
but the confession often precedes the first sensations of remorse, 
by directing the attention to the moral and religious aspects 
of the deed. 
“ This proves that even a confessed criminal should be 
treated with great circumspection. Instead of overwhelming 
him with reproaches, the victory gained by his integrity over 
his fears should be held up to himself as a restorer of self- 
respect. 
“ The more depraved order of culprits do not allow their 
consciences to drive them to despair, but only to 'petulance ; but 
even this frame of mind sometimes goes so far as to lead the 
subject to do the most incomprehensible things, such as 
asserting things against reason, refusing to answer, or causing 
constant trouble and vexation in the prison. Such persons 
are often greatly misunderstood, sometimes by ascribing their 
offensive conduct solely to malice and spite, and sometimes 
by regarding them as demented when, driven by their chagrin, 
they lose all reflection, and say or do things to their own 
injury. The consciousness of crime, coupled with the despair 
of expiation consequent upon having denied it, produce an 
internal schism which may result in the most singular and 
distracting phenomena. 
“ A tolerably sure criterion of an awakened conscience is 
often to be found in the desire of the culprits for some conso- 
latory assurance. Even those who deny their guilt are gene- 
rally anxious to know how they would be able to bear the 
condition of a criminal sentenced according to law. In many 
cases there is an exaggerated idea of the impending punish- 
408 BOOK I.] 
REMORSE. 
[§ 417 
ment, still further increased by the imaginings which haunt the 
prisoner’s solitude. When such erroneous notions come to the 
knowledge of the examining physician, it is perfectly right in 
him to correct them, and the information thus imparted will 
generally produce a change of feeling which at once dispels 
every idea of mental derangement. ”(m) 
§ 416. Rem.orse as implying sanity.(m1)—Remorse, though 
sometimes adduced as a test of sanity, is an emotion which is 
often most keenly felt by those who, in a shock of transitory 
madness, have committed an illegal act. Nothing, for instance, 
could have been more acute than the anguish of Mary Lamb, 
as has been already noticed, when she awoke to the conscious- 
ness that her mother had died by her hand; and similar were 
Cowper’s expressions of misery when his reason was tempo- 
rarily restored and he had gleamings of the fact that he had 
attempted self-destruction when in a state of lunacy. An 
idiot or imbecile, it is true, does not experience remorse; and, 
in point of fact, remorse or any other intelligent emotion 
would be conclusive refutation of the allegation of idiocy or 
imbecility. And so, also, as to maniacs while their mania 
continues.(ft) But, in cases of transitory mania, remorse, or a 
feeling of distress very difficult to distinguish from it, is not 
prevented, after recovery, by a conviction that the act, being 
insane, was innocent. Persons of perfect reason often suffer 
acute pain and distress from injuries inflicted on others through 
their own mere misadventure, though there was on their part 
no moral blame. And such is peculiarly likely to be the case 
with those whose very susceptibility to mania rises from tem- 
peraments that are highly strung. It has been noticed that 
by such the intensity of their regret at insane misconduct is 
often in proportion to the intensity of their prior mania. 
§ 417. On the other hand, absence of remorse is no proof of 
insanity. “Indifferent to the moral turpitude of the act,” is 
sometimes unfortunately brought forward by psychological 
experts as indicating insanity; but there are few hardened 
(m) Schurmayer, Gericht. Med., § 519. See infra, § 816. 
(?«,’) See infra, §§ 788-823. 
(ti) See on this point citations in pamp. Trial of Andrews, Boston, 1868, 
pp. 276-7. 
409 § 419] 
MENTAL UNSOUNDNESS. 
[book i. 
criminals by whom this indifference is not displayed. Un- 
doubtedly our prison reports give instances of penitent and 
reformed prisoners; but, among those suffering second convic- 
tions, such instances are very rare. Repentance is frequently 
feigned in such cases, but is rarely proved by subsequent vol- 
untary reform. A chaplain in an English prison illustrates 
this by referring to a criminal who, having expressed great 
religious contrition, spending much time in poring over the 
Bible, was pardoned, and after his pardon returned the Bible 
to the chaplain, “ because I have no more use for it.” 
Dr. Liman tells us that he has observed a great number of 
murderers, whom he had watched during their period of pre- 
liminary arrest, and whom he had seen mount the scaffold or 
enter the penitentiary for life, whose remorseless apathy, in- 
difference, and even levity, produced on him the most painful 
impressions. Such torpor, though proving a depraved moral 
sense, is no distinctive evidence of lunacy. 
(If) Anger. 
§ 418. Anger, as related to “ homicidal insanity” will be 
hereafter distinctively considered.(o) 
“Anger,” says Archbishop Tillotson,(p) an authority not 
distinguished for undue poignancy of description, “ is a short 
Jit of madness, and he that is passionate and furious de- 
prives himself of his reason, spoils his understanding, and 
helps to make himself a fool.” And Dr. Cogan, while more 
exact, is not much less emphatic: “ Anger is the strong passion 
or emotion, impressed or excited by a sense of injury received 
or in contemplation; that is, by the idea of something of a 
pernicious nature and tendency, being done or intended, in 
violation of some supposed obligation to a contrary conduct.”(<?) 
§ 419. “ A morbid paroxysm of anger,” Dr. Rush tells us, 
“ appears in a preternatural determination of the blood to the 
brain, a turgescence of the bloodvessels of the face, a redness 
of the eyes, an increased secretion of saliva, which is discharged 
by foaming at the mouth, great volubility or a total suppression 
(o) Infra, § 586. (p) Works, vol. i. ser. 4. 
(q) Cogan on the Passions, vol. i. p. 113. 
410 BOOK I.] 
ANGER. 
[§ 420 
of speech, agitations of the fists, stamping of the feet, uncom- 
mon bodily strength, convulsions, hysteria, bleeding at the 
nose, apoplexy, and death. Sometimes this disease appears 
with paleness, tremors, sickness at the stomach, quick respi- 
ration, puking, syncope, and asphyxia. It is in this case 
generally combined with fear, and hence arises the abstraction 
of blood from the brain, and its determination to other parts 
of the body.”(r) 
§ 420. “ Anger,” says Dr. Millingen, “ will vary in its symp- 
toms according to our temperament. Thus we may observe 
what is called red anger and 'pale anger. The first is of a vio- 
lent and explosive nature; it generally affects the sanguinous ; 
the circulation of the blood is accelerated—the breathing is 
difficult and panting—the features flushed—the swollen veins 
are visibly enlarged under the integuments—the eyes flash 
fire, and become injected with blood—the lips contracted ex- 
pose the teeth—the voice becomes hoarse—the hearing diffi- 
cult—foam will occasionally issue from the mouth; in short, 
the features assume the character of mania, arising evidently 
from a congestion of blood on the brain; and under the vio- 
lence of the paroxysm the angry man will know no restraint, 
and is indeed, for the time being, a maniac, indiscriminate in 
his fury and perfectly uncontrollable. Such was the case of 
Charles VI. of France, who, being violently incensed against 
the Duke of Bretagne, and burning with a spirit of malice 
and revenge, could neither eat, drink, nor sleep for many days 
and nights, and at length became furiously mad; as he was 
riding on horseback, drawing his sword and striking promis- 
cuously every one who approached him. During his paroxysm 
of anger the violence of an infuriated man is such that he will 
break and destroy everything about him. On this subject 
Dugald Stewart has entertained a singular notion, and fancied 
that, in these outrageous acts, the angry man thinks that the 
inanimate objects that he attacks are alive. The following are 
his words: 4 The disposition which we sometimes feel, when 
under the influence of instinctive resentment, to wreak our ven- 
geance upon inanimate objects, has suggested to Dr. Reid a 
(r) Rush on the Mind, p. 332. 
411 §421] 
MENTAL UNSOUNDNESS. 
[book i. 
very curious query—whether, upon such an occasion, we may 
have a momentary belief that the object is alive? For my own 
part I confess my inclination to answer this question in the 
affirmative/ Now, with all due respect to the opinion of 
these psychologists, daily experience proves the fallacy of this 
doctrine; for, although such furious persons may break and 
demolish pots and pans, bottles and glasses, chairs and tables, 
they rarely expend their fury on bystanders, who would not 
remain as quiet as crockery or furniture, but have recourse to 
retaliation, with capital and interest. True, such men may 
beat their wives and their children, but they are more cautious 
with strangers; and their outrageous conduct I consider as an 
indication of a cowardly desire to seek revenge, rather than a 
resentful spirit to avenge wrongs or insults; and these out- 
breaks are nothing more than a manifestation of power that 
mankind is ever proud of possessing and displaying. And I 
truly must again differ in opinion with the philanthropic 
Dugald Stewart, when he maintains that a man wishes to 
punish an offender with his own hands, owing to ‘ a secret wish 
of convincing our enemy, by the magnanimity of our conduct, 
how much he had mistaken the object of his hatred.’ I must 
confess that I should feel much hesitation in exposing myself 
to this chance of a benevolent display of malignity on the part 
of an infuriated person.”(s) 
§ 421. And a still higher metaphysical authority, Dr. Reid, 
likens it to “ a storm at sea, or a tempest in the air.’^s1) “ It 
(s) Mind and Matter, by J. G. Millingen, M.D., M.A., pp. 326-7-8. 
(s') “Saape, mihi cum amarae meditanti incommoda vitae, 
Spesque leves, trepidosque, metus vanosque labores, 
Gaudia que instabili semper fucata sereno, 
Non secus ac navis lato jactata profundo, 
Quam venti violensque aestus canusque magister 
In diversa trahunt,” etc.—Buchanamis. 
Montaigne (says Sir William Hamilton) alludes to these verses in the tenth 
chapter of his third book, but 'without naming his master. He has thus 
puzzled his commentators. 
“ Nubibus Atris 
Condita Nullum 
Fundere possunt 
Sidera lumen 
Si mare volvens 
Turbidus Auster 
412 BOOK I.] 
ANGER. 
[§ 421 
does not, therefore, signify anything in the mind that is con- 
stant and permanent, but something that is occasional and has 
a limited duration, like a storm or tempest. Passion com- 
monly produces sensible effects, even upon the body. It 
changes the voice, the feature, and the gesture. The ex- 
ternal signs of passion have in some cases a great resem- 
blance to those of madness; in others to those of melancholy. 
It gives often a degree of muscular force and agility to the 
body far beyond what it possesses in calm moments. The 
effects of passion on the mind are not less remarkable. It 
turns the thoughts involuntarily to the objects related to it, so 
that a man can hardly think of anything else. It gives often 
a strange bias to the judgment, making a man quick-sighted 
in everything that tends to inflame his passion and to justify 
it, but blind to everything that tends to moderate or allay it. 
Like a magic lantern, it raises up spectres and apparitions that 
have no reality, and throws false colors upon every object. It 
can turn deformity into beauty, vice into virtue, and virtue 
into vice. The sentiments of a man under its influence will 
appear absurd and ridiculous, not only to other men but even 
to himself when the storm is spent and succeeded by a calm. 
Passion often gives a violent impulse to the will, and makes a 
man do what he knows he shall repent as long as he lives. 
That such are the effects of passion I think all men will agree. 
Misceat asstum, 
Vitrea dudum, 
Parque serenis 
Unda diebus, 
Mox resoluto 
Sordida coeno 
Visibus obstat. 
Tu quoque, si vis 
Lumine claro 
Cernere verum, 
Tramite recto 
Carpere callem : 
Gaudia pelle, 
Pelle timorem, 
Spemque fugato, 
Nec dolor adsit, 
Nubila mens est, 
Vinctaque frenis 
Haec ubi regnant.”—Boetheus. 
413 414 
MENTAL UNSOUNDNESS. 
[book i. 
They have been described in lively colors by poets, orators and 
moralists in all ages.(7) But men have given more attention 
to the effects of passion than to its nature; and while they 
have copiously and elegantly described the former they have 
not precisely described the latter.” 
§ 422. Schiirmayer very justly remarks that in practice, anger 
and revenge afford much less difficulty, because much more 
readily distinguishable from insanity than is remorse. With 
the more depraved, experience tells us that that malignant 
hatred which led to crime is often increased after the crime 
is committed, and is further aggravated by displeasure at the 
unfavorable testimony of witnesses. The fury of such mis- 
creants is often directed against the judge, the keepers, and 
all who contribute to the execution of their sentence. In the 
case of Carrigan, who was convicted in North Carolina, some 
years since, of murder, so high did his temper run, that the 
defendant, immediately after the verdict of conviction was 
rendered, drew forth a pistol, with which he aimed a shot at 
the prosecuting attorney, and then shot himself. 
In the fierce outburst of passion, it is quite possible to mis- 
take a man under such circumstances for a madman, parti- 
cularly where there is a sentimental predisposition to the 
extension of this plea, and where science and skill are not at 
hand to correct such erroneous impressions. But these views 
will vanish if the examiner abstains from doing anything 
which may still further stimulate the passions, and preserves 
an imperturbable composure. If, after this, a severe reprimand 
is found, either at once or after one or two repetitions, to make 
a wholesome impression and quell the excitement, there is 
certainly no derangement of the faculties; for a man with 
mania, or under the ravings of disease, will never be restored 
(t) Milton tlius describes what Dr. Millingen calls pale anger :— 
“ Thus, while he spake, each passion dimm’d his face, 
Thrice charg’d with pale ire, envy, and despair, 
Which marr’d his borrow’d visage, and betray’d 
Him counterfeit.” 
Thomson has also depicted the same state :— 
“ Senseless and deformed, 
Convulsive anger storms at large, or pale 
And silent settles into fell revenge.” 
414 BOOK I.] 
SHAME. 
415 
to self-control by the voice of reason. Where the man is very 
wild and debased, reproaches will not always answer the pur- 
pose, and it becomes necessary to menace him with coercion. 
The manner in which such announcements are received will 
also suffice to remove all doubts of his sanity. 
(c2) Shame. 
§ 423. The feeling of shame may also exert a very consider- 
able influence on the demeanor of an accused man, not entirely 
lost to this sensation by a long course of vice. Shame rises 
and sinks with the feeling of honor: “ shame is the disagree- 
able perception of the unfavorable opinions entertained of us 
by others.” Men of ordinary stamp, who value external honor 
far above the dignity of self-respect, can imagine no more 
dreadful fate than degradation in the eyes of the public. By 
injudicious treatment such individuals may be reduced to a 
state closely resembling insanity, particularly in the form of 
melancholy, which will disappear the moment a more judicious 
course is resorted to. 
It is not necessary for us, in order to make out the similarity 
of symptoms between insanity and excessive shame, to find 
many parallels to the story told by Dr. Benton, and cited 
without protest by Dr. Bush, of a schoolmaster who was acci- 
dentally discovered upon a close-stool by one of his scholars, 
and who in consequence became deranged.(V) 
§ 424. Dr. Rush also tells us of an American Indian, who 
became deranged and destroyed himself, in consequence of 
seeing his face in a looking-glass soon after his recovery from 
a violent attack of smallpox. The loss of one eye by an affray 
in a country tavern, which materially affected the beauty of 
the face, produced derangement in a young man who was 
afterwards a patient in the Pennsylvania Hospital. There are 
other facts which show the depth of this attachment to beauty, 
in the human mind, and the poignancy of the distress occa- 
sioned by its loss or decay. The once beautiful Lady Wortley 
Montague tells a friend, in one of her letters, that she had 
never seen herself in a looking-glass for eleven years, solely 
(u) Rush on the Mind, p. 38. 
415 416 
MENTAL UNSOUNDNESS. 
[book i. 
from her inability to bear the mortifying contrast between her 
appearance in the two extremes of her life. A clergyman in 
Maryland became insane in consequence of having permitted 
some typographical errors to escape, in a sermon which he had 
published on the death of General Washington.^) 
§ 425. A young gentleman of considerable promise, of high 
natural and acquired attainments, had been solicited to make 
a speech at a public meeting, which was to take place in the 
town in which he resided. As he had never attempted to ad- 
dress extemporaneously a public body, he expressed himself 
extremely nervous as to the result, and asked permission to 
withdraw his name from the published list of speakers. This 
wish was not, however, complied with, as it was thought that 
when the critical moment arrived he would not be found want- 
ing even in the art of public speaking. He had prepared 
himself with considerable care for the attempt. His name 
was announced from the chair, when he rose for the purpose 
of delivering his sentiments. The exordium was spoken with- 
out any hesitation; and his friends felt assured that he would 
acquit himself with great credit. He had not, however, ad- 
vanced much in his prefatory observations when he hesitated, 
and found himself incapable of proceeding. He then sat down, 
evidently excessively mortified. In this state he retired to a 
room where the members of the committee had previously 
met, and cut his throat with his penknife. He wounded the 
carotid artery, and died in a few minutes.(w) 
(id2) Grief. 
§ 426. Shakspeare touchingly as well as naturally describes 
the symptoms of that species of morbid grief which becomes 
monomaniac by self-confinement and self-involution:— 
“ Grief fills up the room of my absent child ; 
Lies in his bed, walks up and down with me ; 
Puts on his pretty looks, repeats his words ; 
Remembers me of all his gracious parts ; 
Stuffs out his vacant garments with his form ; 
Then I have reason to he fond of grief.'" 
(®) Rush on the Mind, p. 40. 
(w) Winslow’s Anatomy of Suicide, p. 64. 
416 BOOK I.] 
GRIEF. 
[§ 427 
“ Physicians,” says Dr. Rush, “ in their unsuccessful efforts 
to save life, are often obliged to witness this passion. It is 
of consequence for them, therefore, to be well acquainted with 
its symptoms and cure. Its symptoms are acute and chronic. 
The former are, insensibility, syncope, asphyxia, and apoplexy; 
the latter are fever, wakefulness, sighing, with and without 
tears, dyspepsia, hypochondriasis, loss of memory, gray hairs, 
marks of premature old age in the countenance, catalepsy, and 
madness. It sometimes brings on sudden death, without any 
signs of previous disease, either acute or chronic. Dissections 
of persons who have died of grief show congestion in and 
inflammation of the heart, with a rupture of its auricles and 
ventricles.(a?) But there are instances in which the sympathy 
of the heart with the whole system is so completely dissevered 
with grief, that the subject of it discovers not one mark of it 
in his countenance or behavior. On the contrary, he some- 
times exhibits signs of unbecoming levity in his intercourse 
with the world. This state of mind soon passes away, and is 
generally followed by all the obvious and natural signs of the 
most poignant and durable grief. There is another symptom 
of grief which is not often noticed, and that is profound sleep. 
I have often witnessed it, even in mothers, immediately after 
the death of a child. Criminals, we are told by Mr. Akerman, 
the keeper of the Newgate, in London, often sleep soundly the 
night before their execution. The son of General Custine 
slept nine hours the night before he was led to the guillotine, 
in Paris. These facts, and many similar ones that might be 
mentioned, will serve to vindicate the disciples of our Saviour 
for a want of sympathy with him in his suffering. They 
slept during his agony n the garden, because their “flesh was 
weak,” and in consequence of “ sorrow having filled their 
hearts.”(y) 
§ 427. Tears, or the capacity to weep, form no test in this 
respect. “ How often,” beautifully says Dr. Cheyne,(z) “have 
we, in passing through this vale of tears, heard the follow- 
(*) Late researches, however, indicate such cases to he very exceptional. 
(y) Rush, on the Mind, pp. 346, 347. 
(2) Cheyne, on Derangement in Connection with Religion, p. 107. 
vol. i.—27 
417 418 
MENTAL UNSOUNDNESS. 
[book i. 
ing lament: ‘Oh, that I could cry! I feel as if it would so 
relieve me! There seems nothing natural in my grief. I, 
•who wept so bitterly for my father, have not a single tear to 
shed for my child.’ This tearless state sometimes remains to 
the very end of life; and we may hear individuals, who were 
originally possessed of the liveliest affections, declare : ‘ Ever 
since my husband, son, or daughter died, my affections have 
been frozen, and my eyes dried up.’ It is very generally ob- 
served, when the first bitterness of grief is overpast—when 
the more violent, selfish, or ecstatic stage of the passion 
had time to subside—that tears will again begin to flow.” 
§ 428. One distinction, however, may be relied on with 
almost certainty. Grief may be, in most cases, relieved by 
the counter-irritation of some affection other than that 
wounded; but insanity never. Bishop Jebb, in his one 
hundred and thirty-ninth letter to Mr. Knox, very touchingly 
illustrates this: “ Mr. "Wilberforce one day proposed to take 
me out to pass next Tuesday with our valuable friend, Mrs. II. 
Thornton, at Clapham. I most gladly embraced the offer. 
She was much affected, and spoke freely to me about her feel- 
ings. • At first she had been reduced to a state of inert grief, 
which would have made her willingly lie down in the same 
bed with him that was just gone, and die with him. A sense 
of affection and duty to her children soon roused her from 
this torpor, and she then felt, and continued many days to 
feel, as if she were in heaven. This high-wrought feeling, 
however, could not long remain, and nature since has had its 
griefs and tears.” “ On this passage,” says Dr. Cheyne, “ we 
would offer the following short observation. By the ‘ inert’ 
state of her grief, we understand that, though it was profound, 
so that she willingly would have died with her husband, yet 
that it was without its natural expression; there was no wail- 
ing. Then another affection was roused, and that assurance 
of Divine protection, which is the inheritance of the servants 
of God, filled her mind with gratitude and joy. Lastly, as 
the ecastasy subsided, and when her anguish was exhausted, 
nature had its ‘ griefs and tears.’ It is always desirable that 
tears should come to the relief of the deeply afflicted: and it 
418 BOOK I.] 
HOME-SICKNESS. 
[§ 431 
is easier to allow the first gush of grief to be over, before we 
attempt, by religious consideration, to moderate its poignancy.” 
§ 429. This often assumes a shape hardly distinguishable 
from hysteria. Thus Goldsmith writes:— 
(e2) Home-sickness {Nostalgia).{a) 
“ Tlie intrepid Swiss that guards a foreign shore, 
Condemn’d to climb his mountain-cliffs no more, 
If chance he hear the song, so sweetly wild, 
Which, on these cliffs, his infant hours beguil’d, 
Melts at the long-lost scenes, that round him rise, 
And sinks, a martyr to repentant sighs.” 
“ It is remarkable,” says Dr. Rush, “ that this disease is most 
common among the natives of countries that are the least 
desirable for beauty, fertility, climate, or the luxuries of life. 
They resemble, in this respect, in their influence upon the 
human heart, the artificial objects of taste which are at first 
disagreeable, but which from habit take a stronger hold upon 
the appetite than such as are natural and agreeable.(6) 
§ 430. Nostalgia, as Siebold(c) tells us, develops itself prin- 
cipally in that period of childhood approaching puberty. 
When the malady is of long continuance, it runs into vol- 
untary starvation, sleeplessness, delirium, derangement of the 
senses, together with the usual melancholy consequences of 
unsatisfied desire. Sometimes symptoms of pyromania are 
discoverable. Thus we are told of a girl of ten years who 
exposed two children, committed to her care, to the flames,, 
under the stress of liome-sickness. id) 
§ 431. “ Another variety of melancholia,” says Greisinger, 
“ is that form which is characterized by a longing for one’s 
(a) Orfila gives the following symptoms by which nostalgia may be recog- 
nized : Profound sadness to which succeeds a gloomy melancholy, silence and 
a great desire to be alone, a great indifference for everything which does not 
recall the objects regretted. Spasmodic contraction of the stomach, prostra- 
tion of mind and body, marasmus, etc.—Med. Leg.,\ol. i. p. 331. Paris, 1848. 
(b') Rush, on the Mind, pp. 38, 39. 
(c) Gericht. Med. § 213. 
(d) See Jahrb. des Osterreich. Staates, 15 Bd. 1834. §597. See also the 
article under the head of Heimweh, by Jesse, in the Encyclop. Worterb. der 
Med. Wissensch. Band 25. Berl. 1841. § 292. 
419 § 431a] 
MENTAL UNSOUNDNESS. 
[book i. 
native land, and by the predominance of those ideas which 
refer to a return to one’s home—home-sickness. 
“ An analogous affection is sometimes developed in prisoners 
by want of employment, and frequently also by the co-operating 
influence of bad nourishment, damp cells, and onanism. Nos- 
talgic melancholia is sometimes accompanied by symptoms of 
congestion of the head, and even of cerebral inflammation 
(Larrey): in this form, too, the same kind of hallucinations 
appear (visions of home scenes, etc.). Not unfrequently, we 
see individuals affected with a greater or less degree of nos- 
talgia commit acts of violence (for example, the murder of 
young children, incendiarism, etc., by servants). Those acts 
proceed more frequently from evidently selfish motives, as 
from the desire to escape from a forced and painful position, 
than from the impulse, which also comes involuntarily in the 
melancholic, to procure a certain degree of solace through the 
perpetration of some frightful deed. Naturally, home-sickness 
is not always a mental disease: this is of importance in a 
medico-legal point of view. In itself it is a mournful dispo- 
sition of spirit suggested by external circumstances. It be- 
comes insanity when this disposition so strongly impregnates 
all the faculties of the mind as utterly to exclude the entrance 
of any other sentiment and when it is accompanied by delirious 
conceptions and hallucinations; a state in which physical de- 
rangements—e. g., loss of appetite, emaciation, etc.—are seldom 
absent. In short, home-sickness ought in foro to be regarded 
as a mental affection only when it presents the usual signs of 
insanity. The want of reflection, which is the most important 
point in concrete cases, ought not to be admitted when the 
individual is perfectly competent to engage in his usual avo- 
cations and perform his duties, as is the case with many of 
those young incendiaries afflicted with home-sickness.”(e) 
§ 431a. “A recent number of the Medical and Surgical Re- 
porter has a valuable paper from Dr. Calhoun, Surgeon-in-chief, 
2d division, 3d corps, on nostalgia as a disease of field service. 
After alluding to the peculiar causes operating to produce the 
disease, he mentions a case of simple nostalgia, with loss of 
(e) Greisinger’s Mental Pathol., Syden. ed. 1867, § 122. 
420 BOOK I.] 
FEAR. 
[§ 433 
appetite and general impairment of functions, occurring in an 
officer, and remarks:— 
14 Hut I fancy that pure uncomplicated cases of nostalgia, 
requiring treatment, are seldom met with in the field. It is 
more frequently a complication or a cause of other disease. 
The very existence of nostalgia presupposes a state of mental 
depression extremely favorable to the contraction of disease. 
The typho-malaria fever and camp diarrhoea are diseases 
asthenic in their character, and always characterized by marked 
depression of all the vital functions. The state of mental 
depression, that is coexistent with nostalgia, acts as a predis- 
posing cause of these diseases, or, as I have frequently found, is 
coexistent with them. Sometimes the nostalgia is, on the 
contrary, produced by other diseases. 
44 The patient becomes disgusted with his condition, and 
sighs for the comforts of home, until his yearning for home 
scenes becomes morbid. But, be the nostalgia the cause or the 
result of diarrhoea, dysentery, or typhoid fever, it is in either 
event a complication to be dreaded as one of the most serious 
that could befall the patient. ”(e}) 
(/2) Fear. 
§ 432. The distinction between sane and insane fear is one 
which is of much importance in several branches of forensic 
medicine. A will is made, for instance, under the influence of 
fear; and the question to be determined is, was the yielding 
to this emotion the consequence of sane or insane volition. 
Or a contract is made under threats; and here again the same 
inquiry emerges. It is true that in both these cases the ques- 
tion is mixed with that of dolus or fraud. A party cannot 
take advantage of his own wrong. He who, by acting on the 
fears even of a sane person, obtains an obligation from such 
person, cannot, as a general rule, enforce such obligation; and, 
when a will is obtained by fear, it requires but slight evidence 
of mental debility in the testator to set the will aside. 
§ 433. In criminal cases, the question presents itself more 
squarely. A man, under the influence of fear, kills another. 
(e1) Amer. Jour, of Ins., April, 1834. 
421 § 435] 
MENTAL UNSOUNDNESS. 
[book i. 
He may kill a supposed enemy, in what is claimed to be self- 
defence. Or he may kill his own children, to avoid, he may 
claim, some greater evil by which they are threatened. How 
is the party, under such circumstances, sane or insane? Is he 
responsible, so far as penal discipline is concerned ? 
§ 434. First, in answering this question, let us remember 
what fear is. Locke accurately defines it to be “ an uneasiness 
of the mind upon the thought of some future evil likely to 
befall us.” It is thq futurity of the evil that forms the essence 
of the emotion. Shakspeare well says that 
“ Present fears 
(#. e. fears that are realized) 
Are less than horrible imaginings." 
It may be of a certain calamity; and here its operations are 
twofold. In some cases, it destroys hope in the sphere which it 
touches, and is apt to inaugurate a blank despondency. Thus, 
if we could foresee the conflagration by which our home is to 
be destroyed, or the death-stroke by which one of our children 
is in a short time to be snatched from us, this foreknowledge 
would envelope us in gloom, and paralyze proportionally our 
energies. On the other hand, such certainty in a coming dis- 
aster may produce a calm and adequate courage which uncer- 
tainty might distract. Or the fear may be of a contingent 
evil; in which case the “ horrible imaginings” of which Shaks- 
peare speaks find play. So far as concerns the intellect, the 
first effect of terror of this kind is in the highest degree stimu- 
lating. The crowds that collect around a telegraph office after 
a great battle; the frenzied anxiety with which newspapers 
are clutched; the preternatural rapidity with which their 
contents are mastered; the intense acuteness of the hearing 
when the postman’s step is awaited ; the vividness with which 
calculations are made as to the time when the news will arrive; 
the exhaustion which, when the result is known, measures the 
intensity of the prior tension; the haggard countenance; the 
hair which a single night’s agony has turned gray: these are 
illustrations of the effect of fear. 
§ 435. On the physical side, the immediate effects of terror 
vary with particular constitutions. There are some whom its 
first shock completely paralyzes. There are others whom it 
422 BOOK I.J 
FEAK. 
[§ 437 
prompts to rapid instinctive flight. There are others—and 
each of these specifications applies to the lower animals as 
well as to men—who are stung by it to wild and destructive 
resistance. 
§ 436. “The appearances,” says Mr. Bain, speaking of the 
physical results of fear,(/) “ may be distributed between effects 
of relaxation and effects of tension. The relaxation is seen, as 
regards the muscles, in the dropping of the jaw, in the col- 
lapse overtaking all organs not specially excited, in tremblings 
of the lips and other parts, and in the loosening of the sphinc- 
ters. ISText as to the organic processes and viscera. The 
digestion is everywhere weakened; the flow of saliva is 
checked ; the gastric sensation arrested (appetite failing); the 
bowels deranged. The expiration is enfeebled. The heart 
and circulation are disturbed; there is either a flushing of the 
face, or a deadly pallor. The skin shows symptoms of derange- 
ment—the cold sweat, the altered odor of the perspiration, 
the creeping action that lifts the hair. The kidneys are 
directly or indirectly affected. The sexual organs feel the 
depressing influence. The secretion of milk in the mother’s 
breasts is vitiated. The increased tension is shown in the 
stare of the eye and the raising of the scalp (by the occipito- 
frontalis muscle), in the inflation of the nostril, the shrill cry, 
the violent movements of protection or flight. The stare of the eye 
is to be taken as an exaggerated fixing of the attention on the 
dreaded object; and there concurs with it an equally intense 
occupation of the thoughts in the same exclusive direction.” 
§ 437. In order to measure, in the next place, the legal re- 
lations of fear, it is necessary to consider from what functions 
of the mind it springs. Describing these functions according 
to the definition already given, as (1) feeling, (2) will or voli- 
tion, and (3) thought, we may readily conceive that fear, in its 
most simple and rudimental shape, may flow directly and ex- 
clusively from feeling. A sleeping infant, or an idiot, or an 
animal of the lowest grade, feels a puncture, and starts convul- 
sively back to prevent an extension of the wound. But in 
almost every other conceivable case, fear is the result of feeling 
(/) Mental and Moral Science, London, 1868, p. 283. 
423 424 
MENTAL UNSOUNDNESS. 
[book i. 
and thought combined. In fact, in most cases, fear involves 
the several powers which intellect includes—memory, percep- 
tion, conception, abstraction, judgment, and imagination. If 
the mind be diseased, then it communicates its disease to the 
fear which flows from it, and this fear becomes an abnormal 
propensity. 
§ 438. Let us apply this to the case of a man killing another 
under the influence of fear. This killing may have been in 
order to avert the threatened danger from the person killed, or 
to avert it from self. 
§ 439. Of the first class the principal instances are those of 
homicides by parents of children to preserve the children from 
starvation or some other impending disaster. In such cases, 
it is hardly possible to view the mind as sane. However it. 
may be in barbarous lands, the systems of charity existing in 
Christian countries are such as to make the killing of children 
by parents to avoid starvation explicable only on one of two 
grounds—diseased imagination amounting to actual insanity, 
or diseased pride by which such insanity is closely approached. 
§ 440. But much more complex questions arise when insane 
fear is set up to excuse the killing of another in supposed self- 
defence. To consider these questions we must inquire what 
is the effect of fear on persons of imbecile or disordered 
intellects. 
§ 441. First, as to the imbecile. On this point some inter- 
esting observations are made by Professor Lazarus, in the 
Zeitschrift fur Volkerpsychologie for 1868. 
“We often find in our lunatic asylums a general,and it may 
be even said absolute, fear (Schreckhaftigkeit, Pantophobia)— 
which with us is a symptom of deep disease, but which is men- 
tioned by travellers as a not unusual occurrence among nations 
of a low order of development. * * * Does it not seem when 
we enter a ward containing nymphomaniac or similarly affected 
patients, as if we had entered into a company made up of par- 
ties of Laps, or Jakutes, whom Castren and Erman describe: ‘A 
woman, alarmed by a sudden clapping of the hand, tore about 
as if frantic, biting and scratching all who were by. Another, 
when alarmed, threw her child in the sea. A blow having 
been struck by a hammer on the outer wall of a hut in which 
424 BOOK I.] 
FEAR. 
[§ 442 
some Laps were sitting in careless conversation, they all fell 
instantaneously on the ground, twitched for a moment with 
their hands and feet, and then lay as motionless as corpses. 
After awhile they began to move again, and then behaved as 
if nothing unusual had happened.’ This last peculiarity is 
highly characteristic. ‘ The East-Jaken, like the Laps,’ re- 
marks Bastran, ‘ are very timid, and are frightened (as in Pan- 
tophobia) by the merest trifles. * * * Every unexpected 
movement, every call or whistle, and every surprise makes him 
beside himself, and throws him in a sort of rage. By the Samo- 
jedens this rage is so great that, xoithout knowing what they do, 
they seize the first axe, knife, or other weapon, and seek to wound 
the bystanders.” 
Cases of a similar character are not unknown to our 
criminal reports. Men of weak minds have been so aftected 
by fear as in their frenzy to strike down innocent strangers, 
and especially is this the case with epidemic fears. Now, in 
such cases, the inquiry is, was the defendant imbecile, or, at 
the best, of a low grade of intelligence bordering on imbe- 
cility ? If he was, his action, in a paroxysm of fear, was 
insane. But this mental imbecility must be substantively 
proved. Fear itself is no defence; for otherwise there is no 
act of violence that could not be thus defended. 
§ 442. The same distinction applies when the defence is an 
insane delusion as to the person by whom the defendant be- 
lieves himself to be endangered. A man conceives that another 
is about to kill him, or to inflict on him other injury approach- 
ing to deprivation of life; and in supposed defence the as- 
sailant is killed. The plea of insanity, as is elsewhere shown,(y) 
may be rightfully interposed where the defendant is acting 
under an insane delusion which, if true, would relieve the act 
from responsibility, or where his reasoning powers are so de- 
praved as to make the commission of the particular act the 
natural consequence of the delusion. Even where there is 
no pretence of insanity, it has been held, that, where a man, 
according to his own lights, has reasonable ground to believe 
himself in danger of death, this would be a good defence.(yx) 
(g) Supra, § 125. 
W) Ibid. 
425 § 443] 
MENTAL UNSOUNDNESS. 
[book i. 
Such, indeed, was the ground of the ruling in Levet’s case ; a 
case which has stood the test of two centuries, and which may 
be viewed as at the basis of the English common law. The 
defendant, in that celebrated case,(A) was abed and asleep in 
his house, when he was told that thieves were breaking in; 
and, in his fright, with his mind still torpid with sleep, dashed 
down stairs, and ran his sword through a visitor who was 
aiding one of the servants of the family. This was held 
homicide by misadventure; nor has this ruling ever been 
questioned. Hor, though there is some conflict of decision 
when the defence set up is simply weakness of intellect not 
amounting to imbecility, can it be questioned that a similar 
result will follow in all cases where the offence was the pro- 
duct of fear so shaped by an insane delusion as to make the 
killing of the supposed assailant appear to the offender to be 
the only means by which his own life could be preserved. 
(61) Simulated insanity.^') 
[For cases of simulation, see infra, Appendix, §§ 834, 835, 836, 
843.] 
§ 443. In every case, the examining physician will be led 
at once to inquire, whether the apparent abnormal state of 
(70 Cro. Car. 438; 1 Hale, 42, 474. 
(t) In. relation to simulated insanity, M. Orfila says, that, as there exists in 
the world a very false idea of madmen, the one who simulates insanity, after 
this idea, will perform, at every instant, contradictory and false acts; thus, 
he will pretend not to remember his past actions, he will not recognize those 
whom he knows very well, he will not make a single correct reply to questions 
that are addressed to him. His features will not have the expression of such 
a violent condition ; he cannot for so long a time prevent himself from sleep- 
ing ; he will play the fool particularly whilst he thinks himself observed ; 
finally, his pretended malady will not li ave developed itself until he feared 
the pursuit of justice ; it will not have been preceded by that originality of 
character, by those marked symptoms of moral disorder which are observable 
in the majority of cases of insanity.—Med. Leg., tome i. p. 400. Paris, 1848. 
See also Med. Leg. J. Briand, p. 396. Paris, 1852. See on this point, Prin- 
ciples of Medical Psychology, being the outlines of a course of Lectures by 
Baron Ernest von Feuchtersleben, M.D. Vienna, 1845. Translated from 
the German by the late H. Evans Lloyd, Esq. Revised and edited by B. G. 
Babington, M.D., F.R.S., etc. London, printed for the Sydenham Society, 
1847, p. 376. See, also, an article by Dr. Bucknill, 13 Am. Journ. of Ins. 
354 ; and essay by Dr. W. S. Chipley, in 22 Am. Journ. of Ins. 5. 
426 BOOK I.] 
SIMULATED INSANITY. 
r§ 444 
mind be real or feigned. One thing, however, must not be 
overlooked, and this is that impostors of this kind are very 
rarely able to keep up the character of the disease assumed 
with consistency, and without involving themselves in contra- 
dictions. “ How hard it is on the stage,” remarks Dr. Buck- 
nill,(j) “and for a few minutes only, for a man to represent 
the manners of a sailor, a peasant, an old man, or any other 
characteristic manners, so that the deception shall be acknow- 
ledged complete! But the histrionic powers of a feigning 
maniac or melancholic must be kept for days and weeks on 
the stretch in the representation of manners and modes of 
thought far more difficult to imitate than those which are 
usually the subject of theatrical art. Dr. Rush is reported to 
have discriminated feigned from real insanity by the relative 
rapidity of the pulse; Dr. Knight and other writers have 
claimed the same power for the sense of smell. At the present 
day the deposits in the urine would, we suppose, be appealed 
to. Much reliance, however, is not to be placed upon any one, 
or even upon several, of the physical signs of nervous dis- 
turbance. They have a scientific but scarcely a diagnostic 
value. They may serve to direct the inquiries of the physician, 
or even to confirm his opinion founded upon other data; but 
standing by themselves they are of little importance in the 
diagnosis of insanity.” 
§ 444. It is important to adopt here the precautions pre- 
scribed by Schurmayer,(&) to watch the subject most closely 
when he supposes himself least observed, as at such times he 
generally drops his mask, which is irksome to him. In all 
such investigations the physician must never show the most 
trifling sign of doubt or hesitation; he must, on the contrary, 
appear to know everything, in order to discover everything, 
and must present a firm and imposing front in all his inter- 
course with the accused. "Where the disease in question is of 
such a nature, as, if genuine, to interfere with or suspend sleep, 
is becomes necessary to watch the patient unobserved at night. 
To subject him purposely to mental irritation or excitement is 
(j) Bucknill on the Diagnosis of Insanity. 
(k) Gericht. Med. § 392. See §§ 341-344. 
427 § 445] 
MENTAL UNSOUNDNESS. 
[BOOK I. 
improper, reprehensible, and liable to cause harm. Threats of 
painful medicines or operations are admissible where the pro- 
cesses threatened are really indicated by therapeutics, but the 
execution of such threats must depend upon the principles laid 
down in another part of this work, in reference to the tests 
applicable to feigned bodily diseases. 
(a2) Reasons for suspecting. 
§ 445. Schiirmayer gives us the following reasons for sus- 
pecting dissimulation or deception:— 
1. When the party has committed some act, the punishment 
of which he would escape by inducing a belief in his aberration 
of mind, in this case the comparison of the offence committed, 
with the form of mental disease assumed, will often suffice to 
confirm the suspicion.(^) 
2. When the individual has frequently expressed an aversion 
to a particular occupation or profession he is expected to assume, 
as, for instance, that of a soldier. 
3. When the general character of the party is open to im- 
putations of malice and deceit, (m) 
4. When it is impossible to discover any previous indications, 
physical or mental, of the pretended derangement of the mental 
faculties, (n) 
A late German trial brings before us a state of facts well 
worthy of being considered by those concerned in religious 
and moral education. The parents of two young girls, one 
eleven and the other fifteen, claimed public relief on the ground 
that the latter were subject to epileptic fits. The patients 
were for months subject to medical scrutiny, and were received 
into an hospital, where, during intermission, as well as of 
paroxysm, they were under constant observation. The elder, 
in particular, wTas affected by the disease in its worst shape; 
being prostrated by convulsive attacks of extraordinary vio- 
(?) Compare Heinrotli, System der psychisch gericlitliclien Medizin. Leip- 
sic, 1825, p. 453. 
(m) Heinrotli, Medizinisclie Zeichenlelire. Ausgabe von Danz. Leipsic, 
1812, p. 380. 
(n) Friedreich, Handbuch der gericlitliclien Psychologie, p. 155. 
428 BOOK I.] 
SIMULATED INSANITY. 
[§ 445 
lence, which afterwards left her in a state of entire exhaustion. 
Suspicion, however, was aroused as to the entire sincerity of 
the patients, and one of the hospital officers, against the vehe- 
ment protestations of the medical attendants, threatened the 
eldest of the two with severe discipline in case she should have 
another fit. The attempt was successful. No fit was repeated; 
and the children confessed that, partly to excite sympathy, 
partly to obtain money, the disease had been simulated. 
Now, in connection with this, observe the following remarks 
of Dr. Carter, in his work on the Influence of Education on 
Diseases of the Nervous System:— 
“ When once a young woman has discovered her power to 
produce a hysteric paroxysm at will, and has exercised it for 
her own gratification without regard to the anxiety or annoy- 
ance it may entail on her friends, a very remarkable effect is 
speedily produced upon her whole mental and moral nature. 
The pleasure of receiving unwonted sympathy, once tasted, 
excites a desire for it that knows no bounds; and, when the 
fits have become familiar occurrences and cease to excite 
attention, their effect is often heightened by the designed imi- 
tation of some other disease.” Then, in the words of Dr. 
Carter, “pleasure is morbidly associated with many ideas 
which ordinarily excite pain. The girl, though originally 
amiable and disinterested, derives a strange satisfaction from 
the sight of the anxiety, and even the distress of her friends; 
and thus proverbially enjoys the idea of deceiving them.” 
So says another writer: “ A person in the shattered state of 
mind that follows some sudden affliction, finds the sympathy 
of friends excited by very demonstrative grief. This in itself 
to many minds is a natural outlet, and then with that strange 
selfish cunning which never tempts the heart so fiercely as in 
such moments of desolation, the paroxysms of grief are so 
timed as best to attract the attention and secure the sympathy 
of those around. When coarse ordinary grief ceases to do 
this, new forms of broken-heartedness are partly felt, partly 
feigned. Food is often refused. Sleep is rejected. Very often 
these conditions, from being partly affected, become wholly 
real. And yet, strangely enough, the sufferer, when he thinks 
himself unobserved, will desist from them. He will put on 
429 § 446] 
MENTAL UNSOUNDNESS. 
[book i. 
his mourner’s air when he knows he is looked at; but, when 
he thinks himself unobserved, will permit himself to be 
diverted. The only cure in such a case is for those about not 
to pamper the hysteria, if such it be, by petting and soothing 
it, otherwise it may become irradicable.” 
(62) Forms generally simulated. 
§ 446. The species of mental unsoundness most frequently 
imitated by the vulgar is delirium—which, at the same time, 
is that which it is the most difficult to sustain. Sheridan, 
with his usual tact, hit upon this when he made the mock- 
author in the Critic throw his heroine into precisely this 
stage:— 
Enter Tilburina and confidant, mad, according to custom. 
Sneer. But, wliat the deuce, is the confidant to be mad, too ? 
Puff. To be sure she is ; the confidant is always to do what her mistress 
does ; weep when she weeps, smile when she smiles, go mad when she goes 
mad. Now, madam confidant—but keep your madness in the background, 
if you please. 
Tili. . . . The wind whistles—the moon rises—see, 
They have kill’d my squirrel in his cage ! 
Is this a grasshopper ?—Ha ! no; it is my 
Whiskerandos; you shall not keep him— * 
I know you have him in your pocket. 
An oyster may be crossed in love !—who says 
A whale’s a bird ?—Ha ! did you call, my love ?— 
He’s here ! he’s there ! He’s everywhere ! 
Ah me ! he’s nowhere ! [Exit. 
Puff. There, do you ever desire to see any body madder than that ? 
Sneer. Never while I live ! 
Puff. You observed how she mangled the metre ? 
Dang. Yes—egad, it was the first thing made me suspect she was out of 
her senses 1 
Sneer. And pray, what becomes of her ? 
Puff. She is gone to throw herself in the sea, to be sure ; and that brings 
us at once to the scene of action, and so to my catastrophe—my sea-fight, 
I mean. 
§ 447. Yet it is much more easy to counterfeit imbecility in 
its lower stages, as faction rather than action is then required. 
‘‘ The feigning madman in all ages has been apt to fall 
into the error of believing that conduct utterly outrageous 
and absurd is the peculiar characteristic of insanity. The 
430 BOOK I.] 
SIMULATED INSANITY. 
[§ 447 
absurd conduct of the real madman does not indicate a total 
subversion of the intelligence; it is not utterly at variance 
with the reasoning processes ; but it is consistent either with 
certain delusive ideas, or with a certain perverted state of the 
emotions. In the great majority of cases, feigned insanity is 
detected by the part being overacted in outrageousness and 
absurdity of conduct, and by the neglect of those changes in 
the emotions and propensities which form the more important 
part of real insanity. Sometimes mania is simulated—the 
man howls, raves, distorts his features and his postures, grovels 
on the ground, or rushes about his room and commits num- 
berless acts of violence and destructiveness. If he has had the 
opportunity of observing a few cases of real insanity, and if 
he is a good mimic, he may succeed in inducing a person who 
only watches him for a few minutes to believe that he is in 
the presence of a case of acute mania; but if the case is 
watched for a few hours or days, the deception becomes appa- 
rent. iso muscular endurance and no tenacity of purpose will 
enable the sane man to keep up the resemblance of acute 
mania; nature soon becomes exhausted, and the would-be 
patient rests, and at length sleeps. The constant agitation, 
accompanied by symptoms of febrile disturbance, by rapid 
pulse, foul tongue, dry and harsh or pallid, clammy skin, and 
the long-continued sleeplessness of acute mania, cannot be suc- 
cessfully imitated. The state of the skin alone will frequently 
be enough to unmask the pretender. If this is found to be 
healthy in feeling, and sweating from the exertion of voluntary 
excitement and effort, it will afford good ground for suspicion. 
If after this the patient is found to sleep soundly and com- 
posedly, there will be little doubt that the suspicion is correct. 
“ Chronic mania may be imitated; and if this should be done 
by an accurate observer of its phenomena, who also happens to 
be an excellent mimic, it cannot be denied that the imitation 
may deceive the most skilful alienist. It is remarkable, that 
two of the most perfect pictures of insanity presented to us in 
the plays of Shakspeare are instances of feigned madness— 
namely the madness of Hamlet, assumed, to escape the machi- 
nations of his uncle, and that of Edgar, in Lear, assumed to 
escape the persecutions of his brother. These inimitable rep- 
431 432 
MENTAL UNSOUNDNESS. 
[book i. 
resentations of the phenomena of insanity are so perfect that 
in their perusal we are insensibly led to forget that they are 
feigned. In both instances, however, the deception was prac- 
tised by educated gentlemen; and on the authority of the 
great dramatic psychologist it may, perhaps, be accepted, that 
the phenomena of insanity may be feigned by a skilful actor 
like Hamlet so perfectly, that no flaw can be detected in the 
representation. Fortunately for the credit of psychologists, 
insanity is rarely feigned except by ignorant and vulgar persons, 
who are quite unable to construct and to act out a consistent 
system of disordered mind. It must be remembered that all 
the features of every case of insanity form a consistent whole, 
which it requires as much intelligence to conceive and to imi- 
tate, as it does to conceive and to imitate any dramatic cha- 
racter. The idea which the vulgar have of madness is of quite 
a different kind. They represent it as a monster, half man, 
half beast; the emotions they represent unchanged and human, 
the intellectual functions they represent entirely perverted, 
grovelling, and bestial. They think that madness entirely alters 
the character of a man’s perceptions and utterly destroys his 
judgment, so that he not only ploughs the shore and sows salt 
for seed, but that he cannot recognize his own son or avoid the 
destruction of his life. In more homely cases it will be found 
that men feigning insanity pretend that they cannot read or 
write, or count ten correctly, or tell the day of the week, or 
how many children they have; they answer every question 
wrongly, which a real lunatic, who could be made to under- 
stand the question and to answer it at will, would certainly 
answer right. ”(o) 
§ 448. The simulation of mania is beset with peculiar diffi- 
culties, arising from the fact just mentioned, that most simu- 
lants assume that maniacs reason illogically from logical pre- 
mises, instead of logically from illogical premises. But, as a 
general rule, the maniac follows, in mental processes, the neces- 
sary laws of association.(p) 
(o) Bucknill on Diagnosis of Insanity. 
(p) See on this Dr. Kraft-Ebing’s essay on Simulation, in Friedrich’s 
Blatter for 1871, p. 163, and Combes’ Annal. Med.-Psy., 1866, p. 349, and see a 
learned essay by Dr. Nicholson in the Journal of Mental Science for Jan. 1870. 
432 BOOK I.J 
SIMULATION. 
[§ 450 
§ 449. The simulation of entire oblivion, as to the res gestce 
of guilt, is a common but at the same time a suspicious device 
of experienced offenders.^1) The risk of this arises from the 
fact that the conditions in which actual amnesia intervenes are 
well known in medical science, and their absence betrays the 
simulation. Thus the simulant is ready enough to betray a 
remembrance of exculpatory facts coincident in time with the 
condemnatory facts which he sedulously forgets; and he is apt 
to fluctuate in the limits which he assigns to his oblivion even 
of inculpatory incidents. It is, as Dr. Kraft-Ebing,(g) perti- 
nently remarks, peculiarly suspicious, when oblivion suddenly 
protrudes itself after arrest. On the other hand, cases are not 
rare where persons of weak mind,shocked by a sudden accusa- 
tion of guilt of which they are innocent, have broken down 
mentally and nervously under the charge, and have become 
actually deranged. An unreported case may be mentioned as 
illustrative of this position. An American clergyman of 
respectability was charged, and on evidence of much strength, 
with a serious sexual crime. He was thrown into a state of 
the highest nervous and mental excitement by the charge, 
made an incoherent confession, and then fled the country. It 
subsequently transpired that the charge was fabricated from 
beginning to end, that the whole process was one of black- 
mailing, and that the fugitive, whose mind was actually upset 
by the charge, was entirely innocent. And, independently of 
the moral shock produced by an accusation of guilt, imprison- 
ment, by itself, may produce insanity. 
§ 450. The physiognomy of mature madness does not admit 
of imitation—though the case is otherwise with imbecility. 
The demeanor of the individual under threats, or even under 
the application of painful remedies, is a criterion of inferior 
value, because skilful impostors withstand the test, and 
because many who are really affected, particularly before the 
disease has assumed a settled character, manifest fear and 
dread of such remedies, and retain, in a considerable degree, 
sensibility to pain. The torpor of the stomach and bowels 
under the use of emetics and purgatives is equally unreliable, 
(p1) See supra, § 410. 
(g) Friedreich’s Blatter for 1871, p. 168. 
vol. i.—28 
433 § 451] 
MENTAL UNSOUNDNESS. 
[book i. 
because the same condition is found unconnected with unsound- 
ness of mind; of greater value is sleeplessness, which a 
deceiver will not long sustain after the fashion of lunatics.(r) 
§ 451. The shortest road to certainty(s) is by comparing the 
case in hand with those recorded or experienced, and by a strict 
application of the inductive tests. Experience teaches that the 
various abnormal conditions of the mind have certain symp- 
toms in common, by means of which they admit of being ar- 
ranged in greater or smaller subdivisions, and finally of being 
reduced to certain clearly defined forms and combinations of 
forms. Although every case, to a certain extent, furnishes its 
own rule, yet this logical process will be of great avail in 
detecting dissimulation, on the one hand, or groundless impu- 
tation of insanity, on the other. The more the phenomena of 
a case of alleged insanity subject to examination differ from 
recorded observations, or the more a person of dubious insanity 
presents an array of symptoms at variance with the form of 
the disease to which they ought to belong, the more reason is 
there to guard against At the same time, it must 
be admitted that the science of psychical medicine has not at- 
tained such a degree of perfection, as to exclude entirely the 
possibility of cases arising which would not admit of being 
classed with any of those already observed and noted. At 
times they incline to mere moral perversity, and are often 
treated as such for years; or the disease itself is not yet clearly 
developed; or, finally, it has apparently ceased, or arrived at a 
stage in which the patient is able to control and direct his con- 
dition, as a drunkard his intoxication.(w) 
(r) Scburmayer, Gericlit. Med. § 533. See supra, § 345. 
(s) Ellinger, Ueber die anthropologisclien Momente der Zurecbnungsfae- 
bigkeit, p. 97. 
(i) Marc, Die Geisteskrankbeiten, etc., vol. i. p. 104. 
(«) Scliiirmayer, Gericlit. Med., § 533. 
“ Whether the following case was or was not one of simulation cannot yet 
be known; the recapture of the convict may, perhaps, hereafter determine 
the question. John Jakes was convicted at the Devon Easter sessions, 1855, 
of pocket-picking. Previous convictions having been proved, he was sen- 
tenced to four years’ penal servitude. On hearing the sentence, he fell down 
in the dock as if in a fit of apoplexy. When removed to the jail, he was 
found to be hemiplegic and apparently mindless. He, however, did some 
434 BOOK I.] 
SIMULATION. 
[§ 452 
(e2) Not proved by sanity at trial. 
§ 452. For the following reasons, simulation is not always 
to be inferred from the absence of a trace of insanity at the 
time of the investigation:—(v) 
things which did not belong to dementia following apoplexy ; for instance, 
he was designedly filthy, and even ate his own excrements. His insanity 
was certified by the surgeon of the jail, and by a second medical man, and 
he was removed to the asylum. Notwithstanding the medical certificates of 
his insanity, the convicting magistrates, wTho knew his character as a burglar 
and a criminal of great ability, thought that he wTas feigning. Warned by 
their caution, I examined the man carefully. He had all the symptoms of 
hemiplegia : the toe dragged in walking, the uncertain grasp of the hand, a 
slight drawing of the features, the tongue thrust to the paralyzed side—all 
these symptoms were present in a manner so true to nature, that, if they were 
feigned, the representation was a consummate piece of acting founded upon 
accurate observation. In the asylum the patient was not dirty ; he was tran- 
quil and apparently demented ; he had to be fed, to be dressed, and to be 
undressed, to be led from place to place ; he could not be made to speak ; he 
slept well. On the night of the 17th of August, 1856, he effected his escape 
from the asylum, in a manner which convinced the magistrates that their 
opinion of his simulation was just, and that he had succeeded in deceiving 
some four or five medical men. He converted the handle of a tin cup into a 
false key, wherewith he unlocked a window guard ; through the window he 
escaped by night into the garden; from thence he clambered over a door 
eight feet high, and afterwTards over a Avail of the same height. He got clear 
away, probably joined his old associates, and has never been heard of since. 
“It is hard to say wrhich is the least improbable, a representation of hemi- 
plegia and dementia so perfect as to deceive several men forewarned against 
deception, or the escape of a really paralytic patient by the means described. 
It must be remembered that the patient was an accomplished housebreaker, 
and that things impossible to other lunatics might have been accomplished 
by him. 
“The fifth report of the inspectors in Ireland states that several cases of 
feigned insanity, to defeat the ends or justice, have come under the official 
cognizance of the inspectors during the year. One young woman, who had 
murdered her husband, displayed the most extraordinary determination; 
although secretly watched day and night for weeks, she never deviated from 
the line of deception; she was, however, tried, convicted, and executed. The 
cases of other murderers who feigned insanity—namely, William Quinlan 
and John Grady—are also recorded. Unfortunately, the carefully prepared 
report is an official document, and not a scientific record ; and, therefore, the 
manner in which the inspectors detected these impositions, and secured the 
administration of justice, is not made known to us.”—Bucknill on the 
Diagnosis of Insanity. 
(t>) Compare Friedreich, p. 165. 
435 § 453] 
MENTAL UNSOUNDNESS. 
[book i. 
a. Patients, whose minds are unsound on one subject only, 
have the power of burying their madness in their own hearts, 
to such an extent as to betray no sign of derangement in the 
course of the examination ; because it is not necessary that the 
disturbance of one function should impair the apparent action 
of the others. There are many cases, which have been in part 
noticed, and some of which will appear in the course of the 
following pages, in which the sufferer is insane on one subject 
alone, while all the other operations of his mind proceed 
as if unimpaired, so that any one unacquainted with the 
fixed idea which controls him would pronounce him perfectly 
rational, (w) 
b. It is established by experience, that lunatics, even when 
their disease is not that of monomania, enjoy intervals in 
which their understanding has not only its normal vigor, but 
even displays uncommon powers.(:r) 
c. A genuine mental disease may be suspended or removed 
by the very circumstance which gives rise to the investigation, 
in analogy to the cases of madmen restored to health by great 
mental and moral shocks, as well as of persons attempting 
suicide from melancholy or despair, who are cured of their 
folly by the impressions received while making the attempt.(y) 
§ 458. Another consideration which must never be lost 
sight of in investigations of the kind is this, that a pretended 
mental disease may turn into a real one.(£) A man who 
makes every effort to appear deranged may be so much af- 
fected by his efforts, that what he pretends may assume a 
reality in his mind, and he become in fact insane.(a) In con- 
clusion, there is also a class of cases in which genuine par- 
O) Compare Wagner, *Beitrage sur Philosopliisclien Antliropologie. 
Vienna, 1794. Vol. i. p. 114. Perfect, Annalen einer Anstalt fur Waliusin- 
nige. Hanover, 1804, p. 341. Esquirol, Note sur la monomanie homicide. 
Paris, 1837, p. 3. 
(«) Muratori, Ueber die Einbildungs Kraft. Leipsic, 1785. Vol. ii. p. 8. 
Reil’s Rapsodien, p. 76. 
(y) Etudes Medico-Psychologiques sur l’Alienation Mentale, par L. F. E. 
Renaudin. Chap. ix. p. 522. Paris, 1854. 
(s) For an interesting essay on Monomania induced by Imitation, see 1 
Am. Journ. of Insan. 116. 
(a) Ibid. 172. 
436 BOOK I.] 
SIMULATION. 
[§ 454 
oxysms of madness alternate with pretended ones, which calls 
for especial caution in pronouncing upon them.(6) 
(cl2) Tests. 
[See cases, infra, §§ 834, 835, and 'particularly § 836.] 
§ 454. There are persons of unsound mind, who, in the in- 
cipient stages of the disease, retain sufficient consciousness to 
endeavor, for various reasons, to conceal their malady. A 
continued attentive observation of such individuals will, how- 
ever, suffice, in general, to furnish the data for a correct view 
of the case. But even in cases of confirmed insanity, an occult 
condition, so called, may occur, in which the madman tries and 
manages to conceal his ailment, or rather his impulses, fancies, 
and feelings. This is particularly frequent in lucid intervals 
and in partial insanity.(c) To interrogate the patient directly 
to the point is of very little avail, for, if he is anxious to con- 
ceal his madness, any questions will inspire him with a sus- 
picion of the questioner which must frustrate all such efforts. 
Under such circumstances, the following suggestions will be 
found useful. 
a. By bringing the patient into a succession of different 
relations of life, and regarding closely the effect produced 
upon him, some indications of his fixed ideas may be made to 
escape him. If the subject of his lunacy is thus brought into 
question, by contradicting his views in connection with it, the 
perversion of his intellect will be doubly apparent. 
b. It is, as has been heretofore shown,(d) important to fur- 
nish the party with pen, ink, and paper, and induce him, under 
some pretext or other, to write; he will not be able to refrain 
from setting down something which will throw more or less 
light on the nature of his derangement. 
(5) Compare Neumann, Die Krankheiten des Vorstellungsvermoegens. 
Leipsic, 1852, p. 397. And Pye, Aufsaetze, etc., aus der gericbtlichen Arz- 
neiwissenscliaft. Third series, p. 219. And see particularly Schiirmayer, 
§ 535, whence the above observations are drawn. 
(c) Friedreich, Diagnostik, p. 38; and his Handbuch der gerichtlichen 
Psychologie, p. 175. 
(d) Supra, § 386. 
437 438 
MENTAL UNSOUNDNESS. 
[book i. 
c. Heindorf proposes that the physician should narrate the 
patient’s own history, or so much of it as he had learned or 
could surmise, to the patient, as the history of the physician ; 
this is to enlist the confidence of the patient and make him sup- 
pose a parallel between his own case and that of the examiner, 
so that the dulce habere socium malorum may elicit circumstances 
which he would otherwise have concealed. 
d. A similar proposal is to associate the individual with 
another, of equal rank, degree of education, social position, 
etc., with himself, as a confidant, as persons of this description 
generally display more frankness towards people of their own 
order, than towards those whom they regard as above them. 
This idea, however, it will be easily seen, is very difficult of 
practical application. 
The tests which may he applied at a medico-legal examina- 
tion have been noticed under a previous head.(e) 
Though patients of this kind may conceal, they can never 
deny their fixed ideas. Many persons, says Ileinroth, who, in 
a healthy state, had no scruples in telling a large series of 
falsehoods, whenever their interest required it or a confession 
of the truth would subject them to a disagreeable exposure, 
forget all this the moment they have a fixed idea to maintain. 
Then they overlook every advantage, and stand at no absurdity 
and no disgrace. To hold fast the fancy which enchains them, 
Js their only aim. If the physician can discover this fancy, 
he has hut to ply the party with questions in reference to it, 
to make him betray himself, and in many cases disclose more 
than the inquirer had ever thought of investigating. 
§ 455. Artificial instrumentalities, though sometimes of doubt- 
ful propriety, have been not infrequently used to test simula- 
tion. The consequence may he at least to relieve the question 
of doubt. Thus Dr. Stoltz, in an essay in the Wiener Med. 
Wochenschrift for 1870, mentions an instance where chloroform 
was employed in such a way as to show that the plea of irre- 
sponsibility was well-founded. The patient purported to be 
deaf and dumb, and he was narcotized, with the expectation 
that, if he was really capable of speech, this capacity would 
(e) Supra, §§ 345-382. 
438 BOOK I.] 
SIMULATION. 
439 
exhibit itself, either when he was in the condition of trance, 
or in the process of recovery of consciousness. He was placed 
under the influence not only of alcohol, hut of chloroform, 
without an articulate sound being produced. The conclusion 
was that his disease was not feigned. In cases of simulated 
insanity, Dr. Stoltz is strongly of opinion that chloroform and 
ether may he successfully used as detectives. Dr. Hicholson, 
in the Journal of Mental Science for January, 1870, expresses 
the same opinion as to the use of electricity; though as a 
general rule, he considers the use of artificial agencies in such 
cases as objectionable on moral and humane grounds. 
In the Appendix Ho. IV. will be narrated a case where 
chloroform was used as a test. 
§ 456. Periodicity is a necessary condition, as has been seen, 
of certain phases of insanity, and when this periodicity fails; 
when, in other words, the symptoms which should be periodical 
and intermittent are exhibited in unintermitting constancy, 
then there is serious ground for suspicion. 
§ 457. By counsel who are charged with examining alleged 
lunatics, the following points may be kept in mind:— 
a. Silence or evasion of questions, on the plea of weakness 
of memory, or confusion of thought, is always suspicious. It 
is, as is well known, and as was conspicuously illustrated in 
the case of the Italian witnesses produced to criminate Queen 
Caroline, the usual resort of a witness who fabricates a case, 
and who has skill enough to know that full and free replies 
will involve him in contradictions. To the idiot, it is true, or 
the maniac whose phase is silence, silence is natural; but cases 
such as these are capable of abundant proof aliunde. The im- 
becile, however, and the person laboring under the ordinary 
phases of amentia, is talkative enough, and answers where he 
can, whether coherently or incoherently. Suspicion should be 
peculiarly aroused when the examinant, on the plea of weak- 
ness of mind, avoids answering, not merely those questions 
concerning which such weakness might naturally be pleaded, 
but those which concern facts which must be indelibly im- 
posed on the memory, such as parents, place of education, pro- 
minent places of abode. The tendency of true imbeciles to 
vague and rambling conversation is unmistakable. Their 
439 § 459] 
MENTAL UNSOUNDNESS. 
[book i. 
attention is not to be fixed on the examiner; their eyes wander 
around the room, and, if they see a relative or friend, they look 
to such dependently to help them to a reply; they often 
repeat feebly to themselves the question, as if to lead them in 
their reply. 
b. § 458. The allegation of “delusion,” or “ hallucination” is 
one which the real lunatic rarely advances. Just because he be- 
lieves in these fancies, he is loath to speak of them when under 
examination, because he is loath to have them the subjects of 
criticism. The difficulty, indeed, of extracting from the 
real lunatic a confession of such beliefs, is well known ; some- 
times the most experienced examiner is baffled for hours, and 
the secret is at last only elicited by a On the other 
hand, simulants are apt to push such alleged delusion, especially 
that of “ persecution,” prominently forward, forgetting that 
for a person to declare that he suffers under a delusion that 
he is persecuted, is to admit that he knows that he is not 
persecuted at all.(^) 
c. § 459. Most difficult is it for the simulant to play con- 
sistently for any length of time his feigned part. He has, in the 
first place, to select intelligently some one particular phase of 
insanity, for such phases are several, with very distinct cha- 
racteristics. He must then, when he writes, or when he speaks, in 
the court room, and in his chamber when he believes himself 
unobserved, in periods of lassitude as well as in periods of excite- 
ment, preserve these characteristics. In this even the most 
consummate actors would fail; and simulants of insanity are 
not often consummate actors. They generally seize upon de- 
lirium, and in this, if they are long watched, they are betrayed 
by their over-acting when they think themselves watched, and 
their repose when watching appears to them to have ceased. 
The real maniac, also, is laboring under a nervous excitement 
which makes him sleepless, and invests him with singular and 
persistent muscular vehemence. The simulant has no such 
abnormal frenzies; he must sleep and rest, as a recruiting 
process for his very simulation. This, however, is but a single 
type. The simulant may select some other; often some of which 
(/) See supra, § 378. 
Cg) See supra, § 385. 
440 BOOK I.] 
DEAF AND DUMB. 
[§ 461 
he may have had opportunity of personal observation. But 
in the long run similar discrepancies will be betrayed. And 
again, there are some signs which it is very difficult to imitate. 
Muscular twitching; vague simpering and self-talking both 
when alone and in company; the eye, whether lack-lustre or 
wild; these no mimic can persistently feign. 
d. § 460. Yet it must not be forgotten that simulation does 
not exclude insanity. Epileptics, and persons subject to 
hysteria, are apt to exaggerate some symptoms, and simulate 
others. But this kind of simulation confines itself to those 
symptoms which are likely to attract sympathy, such as delu- 
sions and nervous or physical disease. Simulated mania or 
idiocy rarely is attempted except by the responsible or sane. 
D. Mental unsoundness as connected with derangement of 
THE SENSES, AND DISEASE. 
(a1) Deaf and dumb.(A) 
(a2) Psychologically. 
§ 461. The deaf and dumb, where their infirmity is con- 
genital, or contracted in early infancy, are always in an ab- 
normal mental and moral condition, owing to the absence of 
hearing and speech, the two main faculties for the culture of 
the mental and moral man.(i) For this reason, only this de- 
scription of the deaf and dumb comes now under consideration, 
and in every case the point of inquiry will be the degree of 
development of the mental and moral powers; that is to say, 
of the power of understanding the consequences and the 
wrongfulness of the act committed. What will always exert 
great influence, is the question whether the deaf and dumb 
person has received any, and what instruction; where no in- 
struction has been efficient, there is always great reason to 
conclude that the psychological conditions are wanting upon 
(A) See an interesting treatise on this point, 8 Am. Journ. of Ins. 17. 
L. Krahmer, Handbuch der Gericht. Med. Halle, C. A. Schwetschke, 1851, 
§122. 
(£) Friedreich Handbuch der Gerichtlichen Psycliologie, p. 659. 
441 § 462] 
MENTAL UNSOUNDNESS. 
[book i. 
which moral responsibility depends.(J) The most difficult 
part of the task is always the examination of the individual, 
which, to lead to a reliable result, requires the assistance of an 
adept—that is to say, a teacher of the deaf and dumb. In 
pronouncing upon such cases, it must not be forgotten that 
the deaf and dumb have a peculiarly irascible disposition, and 
that many of them, especially those whose features are marked 
by fro ward, morose, gloomy, and sinister expression, and more 
or less resemble those of the cretins, are born with a tendency 
to deceit, malice, cunning, duplicity, and cruelty.(Z:) 
§ 462. In regard to the form and manner in which the in- 
tellectual condition of the deaf and dumb should be examined 
and probed, Iloff bauer and, after him, Freidreich, have given 
a series of directions, substantially as follows: "Where the 
deaf and dumb person is able to understand spoken words by 
following the motions of the lips, the inquirer must speak dis- 
tinctly and with marked articulation, so as to enable the 
patient to see what he says. Where oral examinations are 
impracticable or unsatisfactory, the scrutiny, if possible, must 
be made in writing, when it becomes especially important to 
propound simple questions, intelligible to every one. But they 
must not be such merely as the patient is likely to expect be- 
forehand, for these might be answered promptly and correctly; 
not, however, because he has properly examined into and un- 
derstood their meaning, and properly concentrated in his own 
thoughts the answer he returns, but because he considers the 
question as written down, without thinking further about it, 
as a request to commit to paper that which may be a mere 
mechanical form. And yet so long as these answers are correct 
or, if not correct, at least congruous, there is room to believe 
that the questions were understood by the patient, and that he 
is able, to a certain extent, to make himself intelligible to 
others by means of writing. But the contrary does not 
appear if his answers are incongruous. But if several answers 
(j) See J. Briand, Med. L6g., article sur la surdi-mutit<$, p. 569, Paris, 
1852. See also M. Orfila, Med. Leg. sur la surdi-mutite, tome. i. p. 460. 
Paris. 1848. Also, Traite des maladies de l’oreille et de l’audition, par Itard, 
yol. xi. 
(k) Sckiirmayer, Gericht. Med., § 562. 
442 BOOK I.] 
DEAF AND DUMB. 
[§ 463 
are incongruous, and particularly if it is found that a certain 
number of answers are constantly repeated, no doubt remains 
that the individual, however capable of tracing written cha- 
racters, is not able, in the proper sense of the word, either to 
read or write. Where it is necessary to converse with the 
deaf and dumb person by means of signs, and for this purpose 
to call in the assistance of an expert, the capacity of the latter 
must be so far taken into account as to obtain the assurance 
that he will speak and interpret according to the intention of 
the judicial purpose had in view; for which reason, it will be 
important to instruct the interpreter fully on this subject. It 
may also be necessary, and is declared indispensable by some,(?) 
to employ two interpreters at the hearing. Itard is of opinion 
that the intellectual capacity of a deaf and dumb person 
should be tested by a written colloquy, and that, if incapable 
of taking part in such communications, he is to be looked 
upon as lacking the necessary instruction, and idiotic. The 
same high authority further remarks, that, if a deaf and dumb 
man denies having received any instruction, in the hope of 
escaping punishment on the score of ignorance, the proper 
course is to accuse him of a graver crime, and one of another 
character from that imputed to him,(m) and that, on the 
whole, a deaf and dumb man who understands the questions 
asked of him in writing is much the same as a man entirely 
compos mentis. Marc says, that, when the responsibility of a 
deaf and dumb person who has been taught to converse is in 
question, a hearing should be had, without any judicial pre- 
paration, under the form of a conversation on general subjects 
entirely foreign to the offence committed, from which, by an 
association of ideas, a transition should be effected to general 
questions of morals and social order. 
§ 463. “ There is but little difference,” says Orfila, “between 
the uninstructed deaf and dumb and the idiot, and such is the 
affinity existing between these two conditions of the intelli- 
(!) Kleinsclirod. 
(m) If he knows how to write, he will have immediate recourse to this 
method, in order to justify himself, and will thus show the whole range ot 
his intelligence. 
443 § 464] 
MENTAL UNSOUNDNESS. 
[BOOK I. 
gence, that more than the fortieth part of the deaf and dumb 
are afflicted with idiocy. It may be that this mental inca- 
pacity is the result of inaudition, or it may depend upon the 
same cause that paralyzed the auditive sense. It should be 
observed, however, that the idiot is incapable of learning, 
whilst the deaf and dumb, on the contrary, can receive an 
almost complete education. Even if the uninstructed deaf and 
dumb do not know all the consequences of certain criminal 
actions, still they are not slow in learning that these actions 
are censurable, and even that they are the subject of punish- 
Legally, however, though a party seeking to charge 
an uneducated deaf-mute has the burden on him of proving 
some degree of intelligence on the part of the defendant, yet, 
when this is shown, the defendant can no longer plead his disa- 
bility as a bar. 
(b2) Legally. 
§ 464. In addition to the former remarks on this point,(w1) 
it may now he stated:— 
a. The deaf and dumb can exercise control over property. 
In 1754, a woman born deaf and dumb, upon arriving at the age 
of twenty-one years, applied to the English Court of Chancery 
for the possession of her real estate, and for the enjoyment of 
her personal estate (it is presumed that she had been pre- 
viously under the control of a guardian). Upon her appear- 
ing before the Chancellor, Lord Hardwicke, he put questions 
to her in writing, and, receiving suitable written answers, her 
application was granted. 
b. They can take by descent, a point which we believe has 
never been disputed. 
c. When otherwise of disposing capacity, they can make a 
valid will. 
d. Even though uneducated, if capable of intelligently 
bargaining (though it seems the burden of proving this is on 
the party seeking to charge them), they may make a valid con- 
tract, or convey real and personal estate.(o) 
(ft) Med L6g., tome i. p. 4C0. Paris, 1848. 
(ft1) § 95. (o) See supra, §§ 95-98. 
444 BOOK I.] 
DEAF AND DUMB. 
[§ 464a 
e. If compos mentis they can contract matrimony.(p) 
/. They can be examined as witnesses in courts of justice; 
and for this purpose it is proper that their testimony should 
be interpreted through media which they best understand.(g) 
g. They are legally responsible for crimes in the same way 
as other persons, though, in determining the question of sanity, 
their disability, when not removed by education, should throw 
on the prosecution the burden of proving them to have some 
degree of intelligence.(r) 
§ 464a. “The favor of courts and jurists may also be justly 
invoked for a deaf person in cases where he has acted under 
erroneous impressions natural to one in his circumstances. 
Deaf-mutes, and deaf persons who are not quite dumb, are often 
suspicious and irritable, from their inability to hear and take 
part in what is going on around them. They sometimes take 
as intentional annoyance and insult gestures of practical jests, 
unskilfully made, which were merely intended as friendly 
pleasantry. Piroux records the case of Jean-Baptist Villemin, 
a deaf-mute of twenty-nine years, very imperfectly educated, 
and of feeble capacity. Placed by the wealth of his family 
above the necessity of manual labor, and incapable of intellect- 
ual labor, he fell into dissolute habits, wandering idly about 
the fields and frequenting public houses. One night, in a 
tavern, he met a man named Marchand, who attempted to 
amuse himself and the company by making signs to the deaf- 
mute which the latter did not understand. Villemin indicated 
by a gesture that he desired to be let alone; but Marchand 
continued to annoy him, seizing his head, making a bite at his 
nose, and brandishing round his head a cane, which he then 
held in the attitude of firing a gun, saying to the company 
that he wished to invite Villemin to go a hunting. Villemin 
naturally lost his patience; unable to understand what was 
meant by Marchand, or to express his own sentiments, except 
by actions, he seized the aggressor, flung him on the floor, and 
gave him a kick on the head. Marchand was only slightly 
(p) Swinburne on Sponsals, cited 13 Am. Journ. Ins. 127. 
(q) Wh. Cr. Law, § 754; 13 Am. Journ. Ins. 155. 
(r) See supra, §§ 95-98. 
445 § 465] 
MENTAL UNSOUNDNESS. 
[BOOK I. 
hurt. The company declared, and he admitted, that he was 
himself to blame; and he said he harbored no ill-will to Vil- 
lemin for what had passed. Returning home, a distance of 
several leagues, on foot, he fell sick and died of a disease of the 
chest, which his family chose to ascribe to the blows which he 
had received fromVillemin—which, however, was disproved 
by the medical witnesses. The deaf-mute was, in the first in- 
stance, sentenced to two months’ imprisonment; but, on an 
appeal to the Cour lloyale of Nancy, in consideration of the un- 
fortunate condition of Villemin, and of the brutal and incon- 
siderate conduct of Marchand, the term was reduced to six 
days.(s) 
§ 465. “Other cases may easily be supposed in which a deaf 
person may be led to violent conduct by his inability to hear, 
and to understand what is meant by others. An impatient 
man, for instance, requests a deaf-mute to get out of his way, 
and, not knowing that the latter could not hear' his request, 
attempts to shove him aside, thus provoking a manual retort. 
A deaf-mute may also erroneously conceive himself wronged 
in making change, or in price, weight, or measure, and break 
out into violence. In such cases, we are confident, there are 
very few who would undertake a prosecution for violence by a 
deaf-mute, after becoming aware of his peculiar circumstances. 
“ The disposition of courts and juries to mitigate the punish- 
ment of an uneducated deaf-mute criminal has been shown in 
France and Germany in several cases of murder, some of them 
of an aggravated character; for it is notorious that deaf-mutes 
who have grown to maturity without instruction are too often 
passionate and vindictive. Bebian relates the case of Pierre 
Sauron, an uneducated deaf-mute of the department of Cantal, 
who had formed an illicit connection with the daughter of a 
neighbor. The father, scandalized by such a connection with 
a dumb man, undertook to put a stop to it by sending his 
daughter out of the country. For this Sauron manifested the 
most implacable resentment, and finally waylaid and murdered 
him. The sentence was hard labor for life: for the like crime 
one not deaf and dumb would have been sent to the guillotine. 
446 
(s) Piroux’s Journal, i. 46, 59. BOOK I.] 
DEAF AND DUMB. 
[§ 466 
When the sentence was explained to the deaf-mute, he declared 
he would rather be put to death. 
“ Another case we find thus related in the Ninth Report of 
the Deaf and Dumb Institution of Hamburg, Germany. 
“ At Cologne, on the 14th and 15th of August, 1829, the 
royal Court of Assizes was occupied by an accusation against 
a deaf and dumb journeyman shoemaker, Johann Schmit, of 
Kreuznach, wTho, enraged at being upbraided for the defects 
of his work, had stabbed his master with a knife. The prin- 
cipal question discussed was whether the early instruction and 
moral and intellectual state of the deaf-mute made for or 
against his accountability. The jury found that the unfortu- 
nate murderer was not accountable; and he was therefore 
acquitted of the charge, and dismissed free into the street. 
This (adds the editor of the Hamburg Report), it is to be 
hoped, was not without that solicitude that might secure a 
better education to the unfortuate man, then twenty-three 
years old, and sufficient precautions lest he should become 
possessed with the idea that he could do such acts with 
impunity.” 
§ 466. “A much more aggravated case than either of the 
foregoing was that of Michael Boyer, an uneducated and 
vagabond deaf-mute, of about twenty-seven or twenty-eight 
years, who was brought before the Court of Assizes of Cantal 
(France), under the triple charge of rape, murder, and robbery, 
committed on a girl of 11 years, whom he met in a lonely 
place on Christmas-day, 1843, on her way to the residence of 
of an aunt in a distant village, with whom she was to spend 
the winter in order to attend school. Boyer was proved to 
have pursued other females with evident intentions of violence, 
and had been, some years before, condemned to three years’ 
imprisonment for theft. The evidence, though circumstantial, 
was conclusive. It is not to our purpose to detail it. We 
observe, however, that the prisoner, being interrogated through 
M. Riviere, director of the school for the deaf and dumb at 
Rodey, denied, energetically, the principal facts imputed to 
him, and succeeded in making it understood that he main, 
tained that the blood observed on his garments came from a 
wound in the head, occasioned by a fall while in liquor. 
447 § 467] 
MENTAL UNSOUNDNESS. 
[book i. 
"What plea was by liis counsel set up in defence we are not in- 
formed. The jury found him guilty of the triple charge, but 
admitted extenuating circumstances—a verdict the effect of 
which was to save the prisoner’s life. He was condemned to 
hard labor for life, and to the exposition publique (pillory, or 
stocks).(0 It should be observed that the only extenuating 
circumstances that appear in the narrative of this fearful crime 
were the total deprivation of instruction, and neglected, vaga- 
bond state of the criminal. 
“ A similar verdict and sentence were given in the case of 
the deaf-mute Emmanueli, of Corsica, who had waylaid and 
murdered the two sisters Ristori, provoked to frenzy by the 
obstinate refusal of one of them to listen to his prolonged suit. 
He had, some years before, killed her brother in a quarrel on 
the same account; and, it being considered that he had acted 
with great provocation, was only condemned to five years’ im- 
prisonment—a lenity which the commission of the second and 
far more aggravated murder showed to have been misplaced.(w) 
' “ The details of another French case of murder by an 
uneducated mute, Louis Chavanon, may be read in Beck’s 
Medical Jurisprudence. This deaf-mute was of such a covetous 
and grasping disposition that he harbored the most violent 
enmity against any one who purchased property of his father. 
The deceased, Treille, having become possessed, by purchase, 
of the half of the house in which Chavanon lived, the latter, 
after repeated menaces in gestures, meeting him on the common 
stairs, an affray ensued which ended in the death of the un- 
fortunate Treille. The sentence was ten years’ imprisonment 
and a fine of one thousand francs to the widow and children 
of Treille. 
§ 467. “Another deplorable instance of the ungovernable 
passions of too many uneducated mutes is furnished by the 
case of Pierre Lafond, who, having been repeatedly detected 
in thefts of the property of his uncle and aunt, by whom he 
had been adopted and brought up, his aunt was at length pro- 
voked to the degree of following and reproaching him in the 
presence of a young neighbor, of whom Lafond was enamored. 
(<) Morel’s Annales, ii. 166-170. (u) Piroux’s Journal, iv. 144. 
448 BOOK I.] 
DEAF AND DUMB. 
[§ 468 
Watching an opportunity to execute the vengeance that 
rankled in his heart, he availed himself of the absence of his 
uncle to attack his aunt at night, in her bed, with several of 
the shoes-knives used by him in his trade. Her daughters, 
coming to her assistance, were also grievously wounded, but, 
providentially, none of the victims were mortally touched. 
Taken, a day or two afterwards, wandering in the fields, La- 
fond alleged, by the aid of an interpreter conversant with his 
signs, that he committed the act under the influence of a 
sudden fright and hallucination. However, neither this adroit 
defence nor his unfortunate position could make the jury 
forget the aggravating circumstances of the case. He was 
found guilty, and condemned to ten years at hard labor.(V) 
“ In the several French cases that have been cited (and we 
might have cited other similar cases from Bebian’s, Piroux’s, 
and Morel’s Journals), no difficulty appears to have been ex- 
perienced in relation to the formalities of a trial; the questions 
that were raised related to the degree of moral accountability 
of the deaf and dumb. But the few English and Scotch cases 
we have are mostly of a different character. In these cases 
the defence set up for deaf-mutes accused of crime has generally 
turned on legal forms and technicalities. As this paper has 
already extended to an unexpected length, and as the cases to 
which we refer can be consulted at large in standard works, 
we shall restrict ourselves to brief outlines. 
§ 468. “In July, 1817,(w) Jean Campbell, an uneducated 
deaf and dumb woman, the mother of three children by three 
different fathers, was charged before the Court of Justiciary, in 
Edinburgh, with murdering her child by throwing it over the 
old bridge at Glasgow. Mr. Robert Kinniburgh, an eminent 
teacher of the deaf and dumb, was called in as an expert. He 
understood, from her signs, that she maintained that, having 
the child at her back, held up by her cloak, which she held 
across her breast with her hands, and being partially intoxi- 
cated, she had loosened her hold to see to the safety of some 
(®) Ibid. i. 56. 
(w) Beck gives this date 1807, which is a manifest error, as Mr. Kinni- 
burgh, of the Edinburgh Institution for the Deaf and Dumb, which was first 
open in 1810, was called in the case, and referred to it in his report for 1815. 
vol. i.—29 
449 § 468] 
MENTAL UNSOUNDNESS. 
[book I. 
money in her bosom, thus allowing the child to fall over the 
parapet of the bridge, against which she was resting. She 
indignantly denied having intended to throw it in the river. 
“ Mr. Kinniburgh, being asked whether he thought she could 
understand the question, whether she was guilty or not guilty 
of the crime of which she was accused, answered, that in the 
way in which he put the question, asking her by signs whether 
she threw the child over the bridge or not, he thought she 
could plead not guilty by signs, and this is the only way in 
which he could put the question to her; but that he had no 
idea, abstractly speaking, that she knew what a trial was, but 
she knew she was brought into court about her child. 
“ John Wood, Esq., auditor of excise (who is deaf and par- 
tially dumb), gave in a written statement upon oath, mention- 
ing that he had visited the prisoner in prison, and was of 
opinion that she was altogether incapable of pleading guilty or 
not guilty; that she stated the circumstances by signs, in the 
same manner she had done to the court when questioned be- 
fore the court by Mr. Kinniburgh, and seemed to be sensible 
that punishment would follow the commission of a crime. 
“ The court were unanimously of opinion that this novel 
and important question, of which no precedent appeared in the 
law of this country [Scotland], deserves great consideration, 
and every information that the counsel on each side could pro- 
cure and furnish. 
“ At a subsequent period the judges delivered their opinion 
as follows:— 
“ Lord Hennand was of opinion that the panel (prisoner) 
was not a fit object of trial. She was deaf and dumb from 
her infancy; had had no instruction whatever; was unable to 
give information to her counsel, to communicate the names of 
her exculpatory witnesses, if she had any, and was unable to 
plead to the indictment in any way whatever, except by cer- 
tain signs which he considered no pleading whatever. 
“The four other judges, however, overruled this opinion, re- 
ferring especially to a case (already mentioned in a former part 
of this paper) that had occurred in England, in 1773, in which 
one Jones, who had stolen five guineas, appearing to be deaf and 
dumb, and being found by the jury impanelled on that point 
450 BOOK i.] 
DEAF, DUMB, AND BLIND. 
[§ 469 
to be mute ‘ from the visitation of God,’ tvas arraigned by the 
means of a woman accustomed to converse with him by signs, 
found guilty, and transported. And it was also observed that 
it might be for the prisoner’s own good to have a trial; for, if 
the jury found that her declaration, that she did not intend to 
throw her child in the river, was true, she would be acquitted 
and set free ; whereas, if not found capable of being tried for 
a crime, she must be confined for life. The woman Campbell 
was accordingly placed at the bar, and, when the question was 
put, Guilty or not ? 4 her counsel, Mr. McNeil, rose, and stated 
that he could not allow his client to plead to the indictment, 
until it was explained to her that she was at liberty to plead 
guilty or not. Upon it being found that this could not be 
done, the case was dropped, and she was dismissed from the 
bar simpliciter. Thus, though it is" established that a deaf- 
mute is doll capax, no means have yet been discovered of 
bringing him to trial.’ 
“ Certainly the system of laws of Scotland must be defective, 
under which important leading cases are decided, not on broad, 
general principles, but on mere formalities and technicali- 
ties.”^1) 
The manner in which deaf and dumb persons are to be ar- 
raigned has been noticed in another work.(;r) 
(61) Blind. 
§ 469. Blindness {y) can only come in question here when it 
is congenital or has originated in early infancy, for then only 
can it exercise decisive influence on the mental and moral 
development. In general, however, blindness is no reason 
to suspend the personal responsibility of an agent; the defects 
of the mental and moral nature consequent upon it are not 
diseases; and the bearing which they have upon the degree of 
culpability ascribable to an act committed in violation of law 
must be referred to the discretion of the court, as guided by 
the circumstances of each case, (z) 
(w1) Essay by Dr. Peet; see supra, § 96. (x) Wli. C. L. § 532. 
(;y) Sckiirmayer, Gerickt. Med. 563 ; and see L. Krakmer, Handbuck de 
Gerickt. Med. Halle, C. A. Sckwetsckke, 1851, § 122; supra, § 95. 
(s) Compare Friedreick, 676, where tke learning on tkis subject is collected. 
451 § 472] 
MENTAL UNSOUNDNESS. 
[book i. 
§ 470. Epileptics, from their nervous susceptibility and tlieir 
tendency to mental alienation, should be regarded with pecu- 
liar tenderness by those to whom is committed the adminis- 
tration of public justice. Nor should the idea of a recent 
recovery ever exclude one who has been so afflicted from that 
protection which would secure at least a patient investigation 
of the question of moral responsibility. Recent investigations, 
conducted by men of eminent sagacity and great opportunities 
of observation, have led to the conclusion that epilepsy pro- 
duces not only general mental prostration, but anomalies in 
the entire moral and intellectual system. And although the 
malady sometimes coexists with great intelligence, yet the 
patient retains, not only during the attack, but for an indefi- 
nite period afterwards, but an imperfect use of his faculties.(^) 
§ 471. Epilepsy proper consists in periodical attacks of in- 
sensibility, accompanied with involuntary, convulsive, and 
more or less violent motions of the limbs. That persons com- 
mitting a violation of law, while in this condition, are entitled 
to the full benefit of all the considerations which affect the 
responsibility of the agent, needs no argument after what has 
been already said on the subject of unsoundness of mind. The 
case, however, admits of more difficulty when the question is 
whether, in the interval between the attacks, a state of mind 
does or does not exist calculated to destroy or diminish respon- 
sibility.^) 
§ 472. It will be peculiarly necessary, here, to make a 
division between the several classes of epileptic diseases. The 
infirmity is well known to appear in very different degrees of 
intensity, under different circumstances, and as it arises from 
(c1) EPILEPTICS.(a) 
(a) See L. Krahmer, Handbuch Gericht. Med. Halle. C. A. Scliwetsckke, 
1851, § 122; see J. Briand, Med. Leg. p. 568, Paris, 1852; Mr. Orfila, Med. 
Leg. tome i. p. 332, Paris, 1848; M. Falret, Cliniques de Medecine Mentale, 
p. 521, Paris, 1854. 
(5) Boileau de Castlenau: De l’epilepsie dans ses rapports avec l’alienation 
mentale, consideres au point de vue medico-judiciare. Annales d’Hygeine 
publ. et de Medecine Leg., Avril, 1842, No. 94. Erliardt-Ueber Zurech- 
nungsfiihigkeit der Epileptiscben. 
(c) Scbiirmayer, Gericlit. Med. § 565. 
452 BOOK I.] 
EPILEPSY. 
[§ 474 
different physical causes, it may be considered as exerting dif- 
ferent retroactive influences on the mind and the body. It 
may affect the intellectual faculties in a very subordinate 
degree, as the cases of men like Ctesar, Napoleon, and Moham- 
med sufficiently prove. The doctrine therefore results, that, in 
general epilepsy, the usual presumption of responsibility applies to 
acts committed in the intervals between one attack and another.{d) 
§ 473. Obscure epilepsy, as to the existence of which there can 
be no doubt, since the explorations of Morel,(e) may be confined 
in its symptoms to dimly periodic epileptoid conditions, to 
twitching of particular muscles, to occasional fixity of the eye, 
temporary stiffening or stoppage of the organs of speech, and 
to parenthetical loss of memory, vertigo epileptica. It is main- 
tained still further by this acute observer—and this with the 
concurrence of Liman, an author whose conservative tendencies 
in this respect we have already noticed—that these periodic 
attacks may exhibit themselves exclusively in mental dis- 
turbance, in extraordinary excitability, in impulses to homi- 
cide and suicide, in sudden losses of memory, ultimately, 
though perhaps not till a long progress, culminating in epi- 
lepsy proper. These cases, however, are rare, and credence 
should be suspended until the full development of the disease 
is reached. 
§ 474- In particular cases the responsibility of the agent may 
be destroyed, where real symptoms of derangement present 
themselves, and where it is possible or probable that the offence 
was brought on by such abnormal state of the faculties. The 
higher grades of the disease, where it is of long standing, and 
where the attacks recur at brief intervals, cast a doubt upon 
the psychical requirements of responsibility, even where nothing 
is observed which expressly characterizes an aberration of the 
mental faculties. The stage which immediately precedes an 
attack, the premonitory symptoms of heaviness in the head, 
dizziness, loss of consciousness, etc., as well as that which im- 
(d) According to Briand, moral liberty is entirely suspended during the 
attacks. An epileptic, be argues, who commits a homicide during the height 
of his disease, has had no criminal intention, and therefore cannot incur 
responsibility. 
(e) Traite des malades mentales, Paris, 1866, p. 480. 
453 § 477] 
[BOOK I. 
MENTAL UNSOUNDNESS. 
mediately succeeds an attack, and consists in a manifest dis- 
order of tlie bodily and mental functions of the subject, is to 
be treated as connected with the immediate attack.(/) 
§ 475. The moral requirements of responsibility are satisfied 
when the disease is not of great intensity, and where the 
intervals show no trace of an alteration of the intellectual 
functions produced by it, and the excitement to the act com- 
plained of is found not in the obtuseness or ebullition generally 
peculiar to such patient, but in a selfish motive, and where the 
execution of the act betrays forethought, reflection, and wil- 
fulness. 
§ 476. Persons truly epileptic are easily excited to anger and 
revenge on the slightest provocation, in the intervals between 
their attacks. Although these attacks do not always attain 
to such a degree as to deserve the name of mental derangement, 
yet it should never be forgotten that there is always a morbid 
predisposition to insane ebullitions, and in general a morbid 
irritability, which must impair, if not destroy, the moral 
responsibility of actions growing out of them. And, even 
where a sentence of punishment is pronounced, it must not be 
overlooked that its execution may possibly exercise a most 
deleterious influence on the health of the individual, by ag- 
gravating the disease, and perhaps in forcing it into real in- 
sanity. It is not advisable, therefore, to execute a sentence of pun- 
ishment upon an epileptic, without having submitted the case to the 
examination of a duly authorized forensic physician.(g) 
§ 477. Different views, however, have existed on this point. 
Platner(A) denies the responsibility of any epileptic whatever. 
Clarus If) takes a view more in harmony with those we have 
just advanced, maintaining the following propositions :— 
1. All actions and omissions which take place during the 
paroxysm of epilepsy are neither valid nor the subjects of 
responsibility. 
2. When the attack of habitual epilepsy is succeeded by, or 
(/) Scliurmayer, Gericlit. Med. § 567. (g) Ibid. § 568. 
(7t) Quaest. Med. For. p. vi. 
(0 Beitrage zur Erkenntniss und Beurtlieilung zweifelliaften Seelenzusta- 
endu, Leipsic, 1828, p. 96. 
454 BOOK I.] 
EPILEPSY. 
L§ 477 
alternates with, a state of mania or imbecility, all responsi- 
bility is at an end, even where this latter state is but transitory, 
because no human insight or experience can decide with cer- 
tainty whether the patient, at that particular instant, was in 
an entirely sane condition. On the other hand, there are no 
reasons against the validity of civil acts done under such 
circumstances. 
3. Swooning, heaviness of the head, weakness of memory, 
fever, enhanced irritability, etc., which precede or follow the 
attack, destroy as well the responsibility as the validity of 
acts committed during their continuance. 
4. Where it is capable of proof, that the epileptics, in the 
intervals of their attacks, betray symptoms of malice and ob- 
tuseness, justice demands that their faults should be regarded 
as effects of the disease, and that they should he held irre- 
sponsible for acts committed in an ebullition of rage or other 
passion, while such condition should operate in mitigation 
where the crime presupposes forecast and reflection. 
5. Where the signs of an altered state of mind are wanting 
both before and after the attacks, the possibility still remains 
that these signs continue undetected because of their minute- 
ness, and that patients of this description are less able to resist 
sudden impulses than persons in good health; which would 
suggest a mitigation of punishment for actions of violent 
passion, but not for those involving reflection. 
6. All these propositions apply only to idiopathic and ha- 
bitual epilepsy ; not to isolated attacks which ensue upon other 
diseases, and where no trace remains after their cessation. 
7. The diseases connected with epileptic symptoms, par- 
ticularly hysterical spasms, accompanied with insensibility, 
and diseases of the generic character of St. Vitus’s dance, are 
subject to the rules above laid down, under the restrictions 
mentioned in the last head, because the presumption of a latent 
propensity to ebullitions of passion is not, in such cases, vouched 
by experience.^') 
(j) Compare, on the responsibility of epileptics, Friedreich, Handbucli der 
gerichtlichen Psycliologie, p. G37, and Henke, Abhandlungen aus deni Gebiete 
der gerichtlichen Medizin, yol. iy. p. 1. The Am. Journal of Insanity, vol. 
455 § 478] 
MENTAL UNSOUNDNESS. 
[book I. 
§ 478. The difficulties, in cases of pronounced epilepsy, con- 
fine themselves to the question of moral agency during the 
xii. p. 122, gives us a translation from Delasiaure on Epilepsy. From this 
translation we extract the following passages :— 
“Independently of a full appreciation of the disease in itself, and its mental 
consequences, the expert cannot examine too carefully the circumstances 
which attend the crime, the form under which it is accomplished, the motives 
which may have governed the epileptic, his subsequent conduct, his own plan 
of defence, etc. We notice, in almost all the cases reported in the public 
papers and judiciary debates, singularities of expression, and strange details, 
which make us doubt, from the first, if they emanate from a sane intelligence. 
“ With regard to the execution of the deed, ordinary criminals use all due 
precautions against discovery. It may be the same with some individuals 
who have acted under the impulse of an epileptic attack. More frequently, 
however, regardless of the effects and the morality of their actions, they make 
but feeble efforts at concealment. There are those who abandon themselves 
openly to their fury, multiplying their victims without hesitation, gloating 
over their bodies, and, far from being intimidated by the presence of witnesses, 
seem often to find in them a new cause for excitement. 
“ This disregard of every feeling of self-preservation, this contempt of dan- 
ger, are, when found united, the best proofs of the absence of moral liberty. 
‘All epilepsy,’ says Marc, ‘warrants, upon the event of a criminal act, the 
suspicion of mental disorderand he adds, ‘ this suspicion is increased in 
absence of any strong personal motive. ’ With this view other authors, and 
in the number Orfila, with more apparent sagacity, perhaps, than actual ob- 
servation, considered, on the other hand, as an evidence of culpability the 
intentional secrecy by which the acts were characterized. 
“ However, some reflections suggested by the case of the patient H , to 
whom a feeling of jealousy could not have been foreign, make it obvious that 
it is necessary to modify this doctrine ; since, in developing a peculiar irrita- 
bility, ungovernable and fatal propensities, the mortal influence does not ab- 
solutely prevent the association and arrangement of ideas. Such an indi- 
vidual, who, in his intervals of reason and calm, would be able to control his 
impulses, runs the chance of yielding to them during intellectual excitement; 
as a man who would accomplish, under the influence of intoxication, a deed 
from which in cooler blood he might have recoiled. Epilepsy, judiciously 
remarks M. Boileau de Castelnau, destroys the power of justly estimating 
these prejudices, of duly appreciating their foundation, or resisting the ex- 
travagances to which they tend. 
“ This epileptic susceptibility does not serve as a medium only for evil pro- 
pensities : it can of itself call them directly into play, excite and foster the 
idea of misdeed, and lead to its fatal realization. 
“ A meningeal congestion, the result of numerous paroxysms, has recently 
carried off one of our most interesting patients. With a quick intelligence, 
a mild and benevolent disposition, none was more ready than he to recognize 
the least mark of solicitude of which he might be the object; but in the way 
456 BOOK I.] 
EPILEPSY. 
[§ 478 
intervals between tlie attacks. "While the attack lasts, the 
epileptic cannot be viewed as a free agent; and the inquiries 
of retaliation he was utterly ungovernable towards those who opposed his 
wishes. Nothing could induce him to renounce such prejudices ; and, even 
with a disposition less yielding, the burning threats to which he abandoned 
himself could have been easily carried into culpable execution. 
“ Scenes of vindictiveness and brutality, otherwise inexplicable, arise from 
'this cause in our asylums. We had, during the past year, in our department, 
a poor Italian, the victim of the blind malevolence of some of his companions 
in misfortune, who combined to entrap him and overcome him with blows. 
None of the accomplices betrayed the plot. Such wanton cruelty could evi- 
dently be attributed only to morbid perversion, and a lethargic condition of 
moral liberty. 
“ The situation and conduct of epileptics after the perpetration of a crime 
has been justly insisted upon as a matter of importance. They generally ex- 
hibit evident indications of moral agitation. A dull expression, and a sinister 
lighting up of the countenance, reveal in them a vague and gloomy inqui- 
etude. The co-ordination of ideas is usually slow and difficult. They con- 
fess, moreover, the crime with the less reserve, as they see in it only the effect 
of a justifiable defence, or of an involuntary impulse, and feel grief rather 
than remorse, regret rather than fear. If ignorant of the fatal consequences 
of their madness, they receive intelligence of it with strange impassibility, 
and, indifferent to the perils which threaten either their existence or their 
liberty, they neglect either to destroy the traces of their guilt, or to elude pur- 
suit. When they fly, it is less to escape justice than the imaginary danger 
with which their persistent hallucinations surround them ; and, finally, they 
make no resistance to the confinement to which they are subjected. 
“ Nevertheless, here, as in all opinions relative to epileptics, we must admit 
certain exceptions. Of those who, among others, appear to have been governed 
by a voluntary tendency, many appreciating the extent of the crime, not con- 
sidering the influence exercised by the disease, and believing in an evil inten- 
tion and in the existence of moral liberty, feel themselves under a serious 
responsibility. In this situation, and as epilepsy tends to exaggerate the 
instinct of cunning and of self-preservation, they have recourse, generally, 
to the artifices and subterfuges usually practised by ordinary criminals. 
Should the crime be evident, they appeal to their malady as an excuse. In 
the other case, they endeavor to obscure the truth, contradict the testimony, 
establish an alibi, and willingly conform to the plea of their counsel. 
“ These circumstances do not necessarily imply to the criminal action an 
origin absolutely independent of a morbid impulse. It does not follow that, 
from the apparent consciousness which the criminal may have of his fault, 
and the manner in which he may repel the charges of the accusation, the 
magistrates should infer the freedom of will, and responsibility in the com- 
mission of the act. 
“There are, at times, certain accessory considerations, in reference to epi- 
lepsy, which may arise during the progress of a judicial trial. Dr. Jahn has 
457 § 478] 
[book i. 
MENTAL UNSOUNDNESS. 
which the forensic psychologist has to answer concern, there- 
fore, the intermediate conditions of the patient. Is he, in such 
periods, responsible for obligations entered into, or offences 
committed? Of course, in replying to this, we must put aside 
those cases where mental disease, as it frequently does in the 
type of dementia, positively exhibits itself in the patient in 
very wisely observed, that certain sensorial impressions are of a nature, 
owing to the bias which they impart to the mind, to suggest pernicious 
fancies. For example, the sight of bloodshed is sufficient to create in a 
patient, either the apprehension of criminal designs upon himself, or the 
imagined necessity of killing others. A young man, under the influence of 
his epileptic fears, saw a hatchet in an unaccustomed place, and supposed it 
designed for his destruction ; thus showing that this instrument, to which is 
attached a sinister impression, had been capable of awakening a series of 
analogous conceptions. Who is ignorant of the strange effects of the imagi- 
nation—the singularities of the imitative faculty ? Who has not seen that 
the simple reading of a notorious criminal affair—the recital of a murder, of 
an incendiarism, or of a suicide—leads, in a predisposed organization, to the 
perpetration of the identical deed ? 
“ Certain atmospherical conditions have also an influence. We know, espe- 
cially, that intense heat, in creating a flow of blood to the brain, often pro- 
duces mental disturbance. Admissions to our insane hospitals are never more 
frequent than during the dog-days. It would, therefore, be advisable to take 
into consideration such an influence, if, by its coincidence with the period of 
the crime, it would seem to have acted upon the moral disposition of the 
accused. 
“ There would be, above all, strong reasons for believing in the absence of 
moral liberty, if it were proven that the epileptic had lately abandoned him- 
self to the use of alcoholic drinks; nothing, we repeat with M. Renaudin, 
being more capable, not only of aggravating the attacks, but, still more, of 
giving rise to sinister hallucinations. 
“We have now examined the principal elements of epileptic responsibility 
which are calculated to enlighten the judgment of magistrates. The necessity 
of more extended information on this subject becomes more pressing when 
we reflect that instances are not wanting where justice has visited with un- 
merited punishment those who have unhappily yielded only to a pathological 
instigation. In some cases the proofs are sufficiently evident to admit of an 
easy demonstration ; in others, on the contrary, the known quantities of the 
problem are much more uncertain. It is here that wisdom in the judge should 
be united with a lively solicitude. Therefore, with the purpose of promoting 
the success of his examinations, upon a subject comparatively new, and which 
has excited but little attention, we think we are responding to an absolute ne- 
cessity when we support the preceding rules hy a brief exposition of several 
judicial causes, capable of serving as a guide in cases under analogous 
circumstances.” 
458 BOOK I.] 
EPILEPSY. 
[§ 840 
such intervals. This condition as such destroys his responsi- 
bility. We have to meet what may be called an intermediate 
condition—a condition, it may be, of abnormal excitability, 
of melancholy in its less settled phases, of intellectual debility 
more or less marked. Or we are presented with cases in which 
the epileptic convulsions are but rare, slight, and tremulous ; 
and in which the preponderating and far more conspicuous 
symptoms are hypochondria, irritability, dislike and even 
animosity to associates and relatives, suspiciousness, or sense 
of injury from others resulting in overt acts of defence or 
retaliation. Or a still more advanced phase of disease may 
exhibit itself in a sort of temporary dreaminess, producing inco- 
herent and insensible acts, of which there is subsequently but 
a confused In itself this loss of memory is, as 
has been seen, an important proof of suspension of responsi- 
bility. But the difficulty of proving such loss of memory is 
much complicated by the well-known tendency of epileptics to 
simulate symptoms, or to exaggerate those which really exist. 
§ 479. Liman (l) suggests, as to this point, that the patient 
should be examined as to loss of memory on other topics than 
that which is the subject of judicial investigation. He also 
argues that such intermediate loss of consciousness is not to 
be assumed when the litigated transaction required for its con- 
summation complicated intellectual activity, and was elabo- 
rated through weeks or months, and when for collateral points 
the patient’s memory is shown to have been good. Certainly 
any less stringent test would work great injury, both to epi- 
leptics, by their business disfranchisement, and to the com- 
munity, which would be obliged to thus recognize them as a 
privileged class of outlaws emancipated from the restraints of 
the penal law. 
§ 480. The moral effects of epilepsy have been nowhere 
more emphatically recorded than by Hr. Maudsley, in his re- 
markable lectures,published in 1870, under the title of “Body 
and Mind.” He reminds us that a single epileptic fit has been 
(ft) These states are delineated by Morel, in bis work already referred to, 
and also by Griesinger, Archiv i. 319. 
(?) Liman’s Casper, 1871, p. 443. 
459 § 481] 
MENTAL UNSOUNDNESS. 
[book I. 
known to result in an entire transformation of character in 
the patient, causing one who had formerly been gentle, ami- 
able, and tractable, to appear rude, vicious, and perverse. 
Among confirmed epileptics, the periods preceding convulsions 
are marked by moodiness, irritability, and sometimes by a 
sullen fierceness; while in the intervals the patient may be 
amiable and tractable. Sometimes epileptic neurosis may exist 
for a long period in a masked and suppressed state, exhibited, 
not by convulsions, but by moral or mental perversion. 
§ 481. “We have had opportunities,” says Mr. Browne 
(1871), in his work on the Medical Jurisprudence of Insanity,(m) 
“ of inquiring into the case of George Lawton, who was an 
inmate of the West Riding Lunatic Asylum up to the 24th of 
March last, when he was committed by the coroner to take his 
trial for the wilful murder of attendant Lomas, at the assizes 
then being held at Leeds. Upon Monday, the 27th instant, 
George Lawton was placed at the dock to take his trial. 
Mr. Baron Cleasby was the presiding judge. Upon the evi- 
dence of Dr. Crichton Browne, Medical Director of the West 
Riding Asylum, being taken, the jury were asked to return a 
verdict as to the capability of the prisoner to plead, and re- 
turned a verdict that he was incapable. The circumstances of 
this case, as gathered from the depositions, are these. Lawton 
was admitted into the asylum in 1863, and suffered from epi- 
leptic fits of a severe character. During his residence in the 
institution he several times attempted to commit suicide, and, 
shortly before the murder of the attendant, he had struck a 
fellow-patient in the face with a dinner-knife. The deceased 
(Lomas) was principal attendant in Ho. 14 ward, in which 
Lawton had been placed. Upon the afternoon of Friday, the 
24th instant, Lomas remained in the ward in charge of Lawton 
and three other patients, while the other attendants and their 
charges went out for a walk. About three o’clock an attend- 
ant in the airing court heard a cry, and, looking up at the 
second story, saw Lawton striking violently at something on 
the ground, with what appeared to be a stick. He hastened 
to the ward, and met a patient on the step, who said, ‘ He’s 
(m) p. 229. 
460 BOOK I.] 
EPILEPSY. 
[§ 481 
killed, and he’s killed,’ and, upon entering the padded-room, 
he found Lomas lying in a corner, with his skull fractured in 
many places. The room was spattered with brains and blood. 
Lawton was in the day-room of the ward when he was first 
seen. He had a poker in his hand, and he said to the attend- 
ant, as he was about to enter, ‘I’ll serve you the same if you 
come in here.’ That is the whole story. The attendant died 
ten minutes after the medical assistant was in attendance. 
The notes of the post-mortem examination upon the body of 
Lomas indicate that he must have been struck repeatedly with 
the utmost violence. The condition of the walls and roof of 
the room in which the murder was committed points to the 
same conclusion. During the whole of the Friday night suc- 
ceeding the murder, Lawton was restless and maniacal. He 
sprang out of bed whenever the attendants, who were in 
charge of him, turned their heads. The same excitement and 
restlessness continued during the forenoon of Saturday. To- 
wards evening he became calmer, and could talk rationally 
concerning the crime he had committed. We had a long con- 
versation with the patient upon the afternoon of Sunday, and 
came to the conclusion that at the time we observed him he 
was to all intents and purposes a sane man. He certainly was 
weak-minded. But he described the whole circumstances of 
the murder with intelligent accuracy. He maintained that 
he had no ill-will to the deceased, that he did not know why 
he had done it, and that the deceased had always been very 
kind to him. When pressed, he said that he had seen ships 
and railways on the ceiling of his room before going to sleep; 
but we did not come to the conclusion that these were insane 
illusions. He confessed to having done many things to get 
rid of his fits; to have held his head under the cold-water tap, 
to have gone without butter or beer for months past, to have 
drunk his urine, and all with a view to cure himself of epi- 
leptic seizures. He described his condition during the day 
previous to the murder. He had known that a fit was com- 
ing on, and had deposited his money and tobacco with the 
store-keeper, lest they should be taken from him by some other 
patient during the unconsciousness which was incident to the 
attack. He had felt a stiffening of the muscles of his limbs, 
461 § 481] 
MENTAL UNSOUNDNESS. 
[book I. 
and had, according to his own account, had a severe seizure in 
the day-room upon that day. 
“ Ilis memory with regard to the occurrences of the 
morning of the Friday was not perfect. lie sometimes said 
he remembered being spoken to while at dinner by the medical 
superintendent, and at other times he did not remember it. 
He said that he had refrained from taking meat that day, be- 
cause he thought it would do his soul good. He said that he 
himself was a Methodist, but that he did feel better upon 
the Saturday morning for the abstinence. "With regard to the 
crime itself he knew it was wrong. He knew that persons 
who were in their right mind, and who committed murder, 
were hanged, but he seemed to regard himself as exempted 
from punishment because he had fits, and because he some- 
times did not know what he was doing. He said he knew 
swearing was wrong; he thought it more heinous than murder. 
He imagined that if Lomas was good, he must have gone to 
Heaven, and he said he hoped he had not done him any harm. 
He repeatedly asserted that he liked Lomas, the murdered 
man, and that he did not know why he had done what he had 
done. lie spoke of having on a former occasion tried to jump 
through a glass door, and having, before he was admitted to 
the asylum, laid himself down on the rails that he might be 
run over. He seemed to connect these acts, or the conditions 
existing when they were done, with the murder of his attend- 
ant, or the conditions which were present at the time of the 
commission of the crime. From the whole interview—from 
what he said, from his manner of saying it, from the muscular 
tremors which every now and then were observable in his 
limbs—we came to the conclusion that the crime for which he 
was to be tried was due to a simple suggestion, arising during 
the stupid condition which succeeds an attack of epilepsy, and 
that the temporary imbecility was succeeded by epileptic 
mania, which was in its turn followed by a gradual restoration 
to the normal condition of health. In our presence the patient 
showed that he was able to read, that he understood the simple 
rules of arithmetic, and that he was cognizant of the ordinary 
doctrines of religion in much the same way as other people of 
the same class and with the same amount of education are. 
462 BOOK I.] 
SLEEP. 
[§ 483 
There was considerable mental weakness, but it seemed to us 
to be of such a kind as would not have incapacitated the pa- 
tient in any way, civil or criminal, had he been free from 
epilepsy.” 
E. Mental unsoundness as connected with sleep.(w) 
§ 482. Under this general head may be grouped Somnolentia, 
or Sleep-drunkenness (Schlaftrunkenheit), Somnambulism, and 
Nightmare, the two last of which may be considered together. 
In the forensic treatment of such maladies, it is important for 
the court to consider whether the person subject to such a dis- 
order was properly aware of it, and of the possible conse- 
quences, and able to take the precautions by which those 
consequences might have been averted. 
§ 483. Sleep would seem to be only a peculiar form of cerebral 
life, and not a negation of the life of the brain producing 
consequent fatigue, exhaustion, or weakness; it is not to be 
supposed that the state of sleep issues out of the intellect 
itself, but the intellect is diverted by the peculiar change of 
the action of the brain into that state of existence which we 
call sleep. But the intellect does not sleep; nor can it ever be 
said that its activity diminishes during sleep; we merely cease 
to perceive its activity. On the other hand we cannot doubt 
that the activity which involves sleep may also be morbid— 
abnormal—and connected with cramps or convulsive symptoms. 
Sleep is interrupted by whatever terminates the peculiar con- 
dition of the brain upon which sleep depends; by the natural 
expiration of this peculiar state of the brain; by vivid and 
sudden impressions on the senses, and by disagreeable sensa- 
tions. Uow, in a certain morbid condition of the brain this 
awaking is not complete, and does not restore the waking 
state with a full and correct perception of surrounding things; 
but an intermediate state between sleeping and waking is 
produced, which resembles intoxication, and is called the in- 
(n) See Med. Leg. M. Orfila, tome i. p. 456. Paris, 1848; Med. Leg. M. 
Briand, p. 563. Paris, 1852; Kenaudin sur 1’ Alienation Mentale, Cliap. 
6tli, p. 255. Paris, 1854; Leqon’s Cliniques de M. Falret. Leqon 4th, p. 
117. Paris, 1854. 
463 § 484] 
MENTAL UNSOUNDNESS. 
[book i. 
toxication of sleep (schlaftrunkenheit). This state admits of 
action which is directed by the phantoms of the dream; talking 
in sleep being very nearly allied to waking, and dreams them- 
selves being midway between sleep and waking, for in the 
depths of sleep we no longer become conscious of dreams. 
Nightmare and somnambulism, on the other hand, are, as 
will be seen, distinct abnormal conditions of continuous sleep, 
and, under certain external circumstances, may lead to acts of 
violence. In examining such cases it is important to inquire 
into the existence of abnormal physical conditions, such as 
plethora, predisposition to congestions in the head or breast, 
actual congestions, diseases of the heart, abnormal plethora, 
suppressed haemorrhoids, eruptions of the skin, or other habitual 
secretions which have been driven in, nervous affections of 
various kinds, impure air in the bedroom, a hearty meal, or 
indulgence in ardent spirits immediately or shortly before 
going to sleep. Somnambulism is not a mere intensified dream, 
but in foro medico must be treated as a morbid independent 
state, and, in a legal point of view, every act shown to have 
been committed under its influence is to be disconnected with 
voluntary moral agency.(o) 
(a1) Somnolentia, or sleep-drunkenness. 
§ 484. Sleep-drunkenness may be defined to be the lapping 
over of a profound sleep on the domains of apparent wakeful- 
ness, producing an involuntary intoxication on the part of the 
patient, which destroys at the time his moral agency. Under 
the name of Somnolentia, which was given to it by Ploucquet 
and the consequent French writers, and of Schlaftrunkenheit, 
which it was styled by the German school, it became the 
subject of general discussion at the beginning of the present 
century. The first case in which the symptoms were unmis- 
takably reported was that of Euchner.(p) A sentry, who 
had fallen asleep during his watch, being suddenly aroused by 
the officer in command, fell upon the latter with his drawn 
sword, with an attack so furious that the most serious conse- 
(o) Schiirmayer, Gericlit. Med. § 561. 
(p) See Henke’s Zeitsclir. 10 B. p. 39. 
464 BOOK I.] 
SLEEP-DRUNKENNESS. 
[§ 485 
quences were only averted by the interposition of bystanders. 
The result of the medical examination was, that the act was 
involuntary and irresponsible, being the result of a violent 
confusion of mind consequent upon the sudden involuntary 
waking from a profound sleep. 
§ 485. Shortly afterwards occurred the case of a day-laborer, 
who killed his wife with a wagon-tire, the blow being struck 
immediately upon his starting up from a deep sleep, from which 
he was forcibly awakened. In this case, there was evidence 
aliunde that the defendant was seized when waking with a 
delusion that a “ woman in white” had snatched his wife from 
his side and was carrying her away, and that his agony of mind 
was so great that his whole body was wet with perspiration. 
There was no doubt of the defendant’s In 
this country, the case properly would fall under the head of 
excusable homicide by misadventure.(r) In practical result, 
these cases vary little from an early English case, already 
noticed, in which, though there was no psychological defence 
made, there was proof of the same delusions as to danger 
heightened by the same disturbances of mind as are produced 
by a sudden waking up from a deep sleep. The defendant, 
being in bed and asleep in his house, his maid-servant, who 
had hired the deceased to help her to do her work, as she was 
going to let her out about midnight, thought she heard thieves 
breaking open the door, upon which she ran up stairs to the 
defendant, her master, and informed him thereof. Suddenly 
aroused, he sprang from his bed, and, running down stairs with 
his sword drawn, the deceased hid herself in the butlery, lest 
she should be discovered. The defendant’s wife, observing some 
person there, and not knowing her, but conceiving she was a 
thief, cried out, “ Here are they who would undo usand the 
defendant, in the paroxysm of the moment, dashing into the 
butlery, thrust his sword at the deceased and killed herds) 
The defendant was acquitted under the express instructions of 
the court, and the case has stood the test of the common law 
courts for over two hundred years, during which it has never 
(?) Wildberg’s Jalirbuch, 2 Bd. p. 32. (r) See Wharton on Horn. 210. 
(s) Levet’s case, Cro. Car. 438; 1 Hale, 42, 474. 
465 
vol. i.—30 § 486] 
MENTAL UNSOUNDNESS. 
[book i. 
been questioned. It is important to observe, however, that, if 
it differs from the two cases already noticed under this head, 
in the increased naturalness of the delusion under which the 
defendant was laboring, it differs from them in the compara- 
tively longer interval in which his perceptive faculties had the 
opportunity to arrange themselves. Let it be supposed that 
it was the wife, and not the husband, who had slain the de- 
ceased. Under the circumstances, the result would hardly 
have been different, and yet in this case the distinction between 
her responsibility and that of the laborer who killed his wife 
on the waking spasm is simply in the degree of probability 
of delusions which in both cases were unfounded. If in the 
one case this improbability was more glaring, let it be recol- 
lected that there was much less time afforded to the patient to 
compose himself to a reasoning state of mind. 
§ 486. Much more recently, a case occurred which has led 
to the whole question being re-examined and discussed. A 
young man, named A.. F., about twenty years of age, was living 
with his parents in great apparent harmony, his father and 
himself being alike distinguished for their extravagant devo- 
tion to hunting. In consequence of the danger of nocturnal 
attacks, they were in the habit of taking their arms with them 
into their chamber. On the afternoon of September 1st, 1839, 
the father and son having just returned from hunting, their 
danger became the subject of particular conversation. The 
next day the hunting was repeated, and on their return, after 
taking supper with the usual appearance of harmony, the 
family retired at about ten o’clock, the father and mother 
occupying one apartment, and the son the next, both father 
and son taking their loaded arms with them to bed. At one 
o’clock, the father got up to go into the entry, and on his 
return jarred against the door opening into the entry, upon 
which the son instantly sprang up, and, discharging his gun at 
the father, gave the latter a fatal wound in the breast, crying 
at the same time, “ Dog, what do you want here?” The father 
fell immediately to the ground, and the son, then first recog- 
nizing him, sank oh the floor crying, “0! Jesus, it is my 
father.” The evidence was, that the whole family were sub- 
iect to great restlessness in their sleep, and that the defendant 
466 BOOK I.] 
SLEEP-DRUNKENNESS. 
[§ 487 
in particular was affected by a tendency to be easily distressed 
by dreams, which lasted for about five minutes on waking, 
before their effect was entirely dissipated. His own version 
of the affair was, “I must have fired the gun in my sleep; it 
was moonshine, and we were accustomed to talk and walk in 
our sleep. I recollect hearing something jar; I jumped up, 
seized my gun, and shot where I heard the noise. I recollect 
seeing nothing, nor am I conscious of having spoken. The 
night was so bright that everything could have been seen. I 
must have been under the delusion that thieves had broken 
in.” The concurrent opinions of the medical experts examined 
on the trial were, that the act was committed in a state of 
Somnolentia or sleep-drunkenness, and that it was not that of a 
free and responsible agent.(f) 
§ 487. It is important to distinguish somnolentia, or sleep- 
drunkenness, which is a state that to a greater or less extent 
is incidental to every individual, from somnambulism, which 
is an abnormal condition incident to a very few. The expe- 
rience of every-day life demonstrates how much the former 
enters into almost every relation. Children, particularly, 
sometimes struggle convulsively in the effort to wake up, 
which often is continued for several minutes. The very ex- 
clamations, “Wake up”—“Come to”—which are so common 
in addressing persons in the waking condition, are scarcely 
necessary to bring to the mind many recollections of cases 
where the waking struggle has been peculiarly protracted. Of 
course there are constitutions where this struggle is peculiarly 
distressing, just as there are constitutions in which the ten- 
dency to sleeplessness is equally marked. Dr. Krugelstein 
tells us of a merchant of distinction who had an irrepressible 
tendency to sleep in the afternoons, and yet who, whenever he 
was wakened up, was for a few moments overcome with a 
paroxysm, over which he had no control. Dr. Meister himself (u) 
relates the following phenomenon: “ I was obliged to take a 
(t) Henke’s Zeitschrift, 1853, vol. lxv. pp. 190-1; and see also a case of 
inucli greater doubt in Klein’s Annalen der Gesetzgebung, etc., viii. B. 
Berlin, 1798 ; and Hollers gericktliche Arzneiwissen-schaft, vol. i. 302. 
(u) Henke’s Zeitscbrift, vol. lxv. 456. See Krafft-Ebing, Transitoriscke 
Irresein, 1868. 
467 468 
MENTAL UNSOUNDNESS. 
[BOOK I. 
journey of eight miles on a very hot summer’s day, my seat 
being with my back to the horses, and the sun directly in my 
face. On reaching the place of destination, and being very 
weary and with a slight headache, I laid myself down, with 
my clothes on, on a couch. I fell at once asleep, my head 
having slipped under the back of the settee. My sleep was 
deep, and, as far as I can recollect, without dreams. When it 
became dark, the lady of the house came with a light into the 
room. I suddenly awoke, but, for the first time in my life, 
without collecting myself. I was seized with a sudden agony 
of mind, and, picturing the object which was entering the 
room as a spectre, I sprang up and seized a stool, which, in 
my terror, I would have thrown at the supposed shade. For- 
tunately, I was recalled to consciousness by the firmness and 
tact of the lady herself, who, with the greatest presence of 
mind, succeeded in composing my attention until I wTas 
entirely awakened.” 
§ 488. The existence of this intermediate state between sleep- 
ing and waking, and of the “ drunkenness” by which it is 
sometimes accompanied, is recognized by even the older ele- 
mentary writers. Thus ‘Wendler(v) says: “Discerni autem 
possit expergefactio naturalis a praeternaturali. Etenim somno 
sensim reficitur sensibilitas animi, quae, cum in eum evehitur 
gradum, ut solemnibus pistoque non fortioribus excitamentis 
ad cogitandum excitetur, naturalis expergefactio est; contra 
ubi facultate ilia parum aucta, insolita incitamentorum vis 
animum cogit ad statum vigiliae, praeternaturalem lianc dici- 
mus expergefactionem.” 
The following tests it is important to apply in order to de- 
termine the question of responsibility:— 
a. A general tendency to deep and heavy sleep must be 
shown, out of which the patient could only be awakened by 
violent and convulsive effort. 
L Before falling asleep, circumstances must be shown pro- 
ducing disquiet which sleep itself does not entirely compose. 
c. The act under examination must have occurred at the 
(») Dissertatio de Somno. Lipsise, 1805, p. 23. Krafft-Ebing gives a 
similar case in his Trans. Irresein, 1868, p. 8. 
468 BOOK I.] 
SLEEP-DRUNKENNESS. 
[§ 490 
time when the defendant was usually accustomed to have 
been asleep. 
d. The cause of the sudden awakening: must be shown. It 
© 
it true that this cannot always happen, as sometimes the start 
may have come from a violent dream. 
e. The act must bear throughout the character of uncon- 
sciousness. 
/. The actor himself, when he awakes, is generally amazed 
at his own deed, and it seems to him almost incredible. Gene- 
rally speaking, he does not seek to evade responsibility, though 
there are some unfortunate cases in which the wretchedness of 
the sudden discovery overcomes the party himself, who seeks 
to shelter himself from the consequences of a crime of which 
he was technically, though not morally, guilty. 
§ 489. A very intelligent observer, Dr. Kriigelstein, has 
given us a critical and extended observation of those cases in 
which crimes have been committed in the supposed somnolen- 
tial state, in which he draws the inferences that this species 
of mania occurs chiefly, if not entirely, with persons who are 
sound sleepers, and are suddenly startled, by some violent 
exterior cause, from a sleep which, from indigestion or other 
causes, has been already disturbed and excited by dreams of 
peculiar vivacity. Such cases are universally marked with a 
want of consciousness in the actor, and followed when he 
awakes by entire astonishment and then violent remorse.(w?) 
§ 490. Dr. Taylor, in his admirable treatise,(a?) gives us the 
following cases on the same point:— 
A peddler, who was in the habit of walking about the 
country armed with a sword-stick, was awakened one evening, 
while lying asleep on the high-road, by a man who was acci- 
dentally passing seizing him and shaking him by the shoul- 
ders. The peddler suddenly awoke, drew his sword and stabbed 
the man, who afterwards died. lie was tried for manslaughter. 
Ills irresponsibility was strongly urged by his counsel, on the 
ground that he could not have been conscious of an act perpe- 
(w) Kriigelstein, Ueber die in Zustande der Sclilaftrunkenheit veriibten 
Gewaltthatigkeiten in gericbtsarztlicher Bezieliung. 
(*) Med. Jur. 599, COO. 
469 § 491] 
MENTAL UNSOUNDNESS. 
[book i. 
trated in a half-waking state. This was strengthened by the 
opinion of the medical witness. The prisoner was, however, 
found guilty. Under such circumstances it was not unlikely 
that an idea had arisen in the prisoner’s mind that he had 
been attacked by robbers, and therefore stabbed the man in 
self-defence.(y) 
Dr. Ilartshorne, in a note, tells us that a somewhat similar 
case occurred in Philadelphia, a few years back, in which a 
man was shot with a pistol by an acquaintance whom he had 
suddenly aroused from sleep, late at night, in an open market- 
house. The plea was, that the deceased was mistaken for a 
robber when the pistol was fired; but the jury found a verdict 
of manslaughter. 
§ 491. Two persons, in a case cited by Mr. Best, who had 
been hunting during the day, slept together at night. One of 
them was renewing the chase in a dream, and, imagining him- 
self present at the death of the stag, cried out “ I’ll kill him! 
I’ll kill him!” The other, awakened by the noise, got out of 
bed, and by the light of the moon beheld the sleeper give 
several deadly stabs with a knife, in that part of the bed 
which his companion had just quitted. Suppose a blow, given 
in this way, had proved fatal, and the two men had been 
shown to have quarrelled previously to retiring to rest! But 
a defence of this kind, as is well remarked by Dr. Taylor, may 
be unduly strained. Thus, where there is an enmity, with a 
motive for the act of homicide, the murderer while sleeping 
in the same room may select the night for an assault, and per- 
petrate the act in darkness in order the more effectually to 
screen himself. In the case of Reg. v. Jackson,(2) it was urged 
in defence that the prisoner, who slept in the same room with 
the prosecutor, had stabbed him in the throat, owing to some 
sudden impulse during sleep; and the case of Milligan, above 
given, was quoted by the learned counsel, in support of the 
view that the prisoner was irresponsible for the act. It was 
proved, however, that the prisoner had shown malicious feel- 
ing against the prosecutor, and that she wished him dead. 
(y) The Queen v. Milligan. Lincoln Aut. Assizes, 1830. 
(z) Liverpool Autumn Ass. 1847. 
470 BOOK I.] 
SOMNAMBULISM. 
[§ 492 
The knife with which the wound had been inflicted bore the 
appearance of having been recently sharpened, and the pris- 
oner must have reached over her daughter (the prosecutor’s 
wife), who was sleeping in the same bed with him, in order to 
produce the wound. These facts are quite adverse to the sup- 
position of the crime having been perpetrated under an im- 
pulse from sleep, and the prisoner was convicted. In another 
case, Reg. v. French,(a) it was proved that the prisoner while 
sleeping in the same room had killed the deceased, who was a 
stranger to him, under some delusion. There was, however, 
clear evidence that the prisoner was insane, and on this ground 
he was acquitted under the direction of the judge.(6) In a 
subsequent case in Ireland, where the same defence could with 
much justice have been presented, the defendant, though under 
circumstances throwing much doubt on the verdict, was con- 
victed.^) 
(bl) Somnambulism. 
§ 492. Somnambulism, according to the usual acceptation, 
involves, (1) continuousness, not being merely a transition 
momentary state between sleeping and waking ; (2) a sort of 
supersensual or ecstatic consciousness, which enables the 
patient to find his way with his eyes closed, or with his vision 
so abnormally excited as to fail to present to him anything 
more than a certain path, or certain objects on which his at- 
tention is absorbed. Perhaps the latter condition may be 
more correctly defined as that of a state of dreamy abstraction, 
in which the objects of a dream are exclusively observed and 
pursued. In a limited degree this is frequently observable in 
children, who at night, especially when the room is lighted by 
the moon, will rise from their bed and wander into their 
mother’s room, apparently in a dreamy state, incapable of 
giving clear answers, and without subsequent waking recollec- 
tion of having made such a move. But as to adults, it is to 
be observed that the condition is easily simulated, and that as 
the cases of adult somnambulism reported in recent years are 
(a) Dorset Autumn Ass. 1846. 
(5) Taylor’s Med. Jurisprudence, pp. 599, GOO. 
(c) See 22 Am. Journ. of Ins. 25. 
471 § 494] 
MENTAL UNSOUNDNESS. 
[book i. 
very rare and are sustained by meagre proof, we may indulge 
in a reasonable doubt whether most of the earlier cases are not 
to be solved by the hypothesis of simulation, or of mythical 
exaggeration. Certainly, when an act is intelligently done by 
an adult, and for an intelligible purpose, the defence of som- 
nambulism is one of the wildest that can be offered. 
§ 493. “Dreaming,” says Dr. Rush, “is a transient paroxysm 
of delirium. Somnambulism is nothing but a higher grade of 
the same disease. It is a transient paroxysm of madness. 
Like madness, it is accompanied with muscular action, with 
incoherent or coherent conduct, and with that complete obli- 
vion of both which takes place in the worst grade of madness. 
Coherence of conduct discovers itself in persons who are af- 
fected with it undertaking or resuming certain habitual ex- 
ercises or employments. Thus we read of the scholar resuming 
his studies, the poet his pen, and the artisan his labors, while 
under its influence, with their usual industry, taste, and cor- 
rectness. It extended still further in the late Dr. Blacklock, 
of Edinburgh, who rose from his bed, to which he had retired 
at an early hour, came into the room where his family were 
assembled, conversed with them, and afterwards entertained 
them with a pleasant song, without any of them suspecting 
he was asleep, and without his retaining after he awoke the 
least recollection of what he had done.”(rf) 
§ 494. A German psychologist(e) gives us, in great minute- 
ness, a narrative of a young woman, a somnambulist, who, 
when twenty-three years old, having been previously in good 
health and regular in her menstruation, was seized with epi- 
lepsy in consequence of a fright produced by an attack of 
robbers. She soon became the victim of somnambulism, which 
manifested itself in all its ordinary incidents, such as deep 
sleep, want of memory and firmness in her movements when 
under its influence. While in the somnambulic condition she 
(d) Rush, on the Mind, pp. 302, 303. See E. L. Heim, vermischte med. 
Schriften, herausg. von A. Paetsch. Leipsic, 183G, § 336. L. Kralimer, 
Handbuch der Gericht. Med. Halle, C. A. Schwetsclike, 1851, § 115. Siebold, 
Lehrbucli der Gericht. Med. Berlin, 1847, § 196. 
(e) Dornbllith, Geschichte einer Nachtwandlerin, Henke’s Zeitsclirift, 
xxxii. 2. 
472 BOOK I.] 
SOMNAMBULISM. 
[§ 495 
had the habit of concealing articles of various kinds, the result 
of which was that she was charged with theft. Under the 
advice of Dr. Dornbliith she was finally acquitted, and under 
his care was gradually restored to health. 
§ 495. Dr. Upham gives us the following American illus- 
tration : “ A farmer in one of the counties of Massachusetts, 
according to the account of the matter which was published 
at the time, had employed himself for some weeks in the 
winter thrashing his grain. One night, as he was about clos- 
ing his labors, he ascended a ladder to the top of the great 
beams in the barn, where the rye which he was thrashing was 
deposited, to ascertain what number of bundles remained un- 
thrashed, which he determined to finish the next day. The 
ensuing night, about two o’clock, he was heard by one of the 
family to arise and go out. He repaired to his barn, being 
sound asleep and unconscious of what he was doing, set open 
his barn doors, ascended the great beams of the barn where 
his rye was deposited, threw down a flooring, and commenced 
thrashing it. When he had completed it, he raked off the 
straw and shoved the rye to one side of the floor, and again 
ascended the ladder with the straw, and deposited it on some 
rails that lay across the great beams. He then threw down 
another flooring of rye, which he thrashed and finished as 
before. Thus he continued his labors until he thrashed five 
floorings, and on returning from throwing down the sixth and 
last, and in passing over part of the haymow, he fell off, where 
the hay had been cut down about six feet, to the lower part of 
it, which awoke him. He at first imagined himself in his 
neighbor’s barn, but, after groping about in the dark for a long 
time, ascertained that he wras in his own, and at length found 
the ladder, on which he descended to the floor, closed his barn- 
doors, which he found open, and returned to his house. On 
coming to the light he found himself in such a profuse perspi- 
ration that his clothes were literally wet through. The next 
morning, on going to his barn, he found that he had thrashed 
during the night five bushels of rye, had raked the straw off 
in good order and deposited it on the great beams, and care- 
fully shoved the grain to one side of the floor, without the 
473 § 496] 
MENTAL UNSOUNDNESS. 
[book i. 
least consciousness of what he was doing, until he fell from 
the hay.”(/) 
“ A man in this state,” says Falret, “ has no longer the same 
relations with the exterior world. He enters into movements 
which seem the result of the will, since he avoids blows and 
falls with the greatest nicety; and yet he does not seem to see, 
or at least his sight appears very confused. The mind is evi- 
dently in action, since somnambulists often write things which 
they were unable to do when awake, maintain conversation, 
and perform actions implying regular ideas. And yet after 
the attack they preserve no remembrance of their thoughts, 
feelings, or actions, as if consciousness had been entirely obli- 
terated whilst it lasted.”(y) 
§ 496. The views of Abercrombie have been so long ap- 
pealed to on this point that we cannot refrain from giving them 
here in full: “Somnambulism,” he says, “appears to differ 
from dreaming chiefly in the degree in which the bodily func- 
tions are affected. The mind is fixed, in the same manner as 
in dreaming, upon its own impressions as possessing a real and 
present existence in external things; but the bodily organs 
are more under the control of the will, so that the individual 
acts under the influence of erroneous conceptions, and holds 
conversation in regard to them. He is also, to a certain degree, 
susceptible of impressions from without, through his organs 
of sense; not, however, so as to correct his erroneous im- 
pressions, but rather to be mixed up with them. A variety of 
remarkable phenomena arise out of these peculiarities, which 
will be illustrated by a slight outline of this singular affection. 
The first degree of somnambulism generally shows itself by a 
propensity to talk during sleep—the person giving a full and 
connected account of what passes before him in dreams, and 
often revealing his own secrets or those of his friends. Walking 
during sleep is the next degree, and that from which the 
affection derives its name. The phenomena connected with 
this form are familiar to every one. The Individual gets out 
(/) Upliam on Mental Action, pp. 182,183. See also article by M. Alfred 
de Maury, 18 Am. Journ. of Ins. 236. 
(y) Leqons Cliniques de 1’ Alienation Mentale, par. M. Falret, Leqon 4, p. 
121. Paris, 1854. 
474 BOOK I.] 
SOMNAMBULISM. 
[§ 496 
of bed; dresses himself; if not prevented, goes out of doors; 
walks frequently over dangerous places in safety; sometimes 
escapes by a window and gets to the roof of a house ; after a 
considerable interval, returns and goes to bed; and all that has 
passed conveys to his mind merely the impression of a dream. 
A young nobleman mentioned by Hortensius, living in the 
citadel of Breslau, was observed by his brother, who occupied 
the same room, to rise in his sleep, wrap himself in a cloak, 
and escape by a window to the roof of the building. He there 
tore in pieces a magpie’s nest, wrapped the young birds in his 
cloak, returned to his apartment, and went to bed. In the 
morning he mentioned the circumstance as having occurred in 
a dream, and could not be persuaded that there had been any- 
thing more than a dream, till he was shown the magpies in 
his cloak. Dr. Prichard mentions a man who rose in his sleep, 
dressed himself, saddled his horse, and rode to the place of a 
market which he was in the habit of attending once every 
week; and Martinet mentions a man who was accustomed to 
rise in his sleep and pursue his business as a saddler. There 
are many instances on record of persons composing, during the 
state of somnambulism: as of boys rising in their sleep and 
finishing their tasks which they had left incomplete. A gen- 
tleman at one of the English universities had been very intent 
during the day in composition of some verses, which he had 
not been able to complete: during the following night he arose 
in his sleep and finished his composition, then expressed great 
exultation, and returned to bed. In these common cases, the 
affection occurs during ordinary sleep; but a condition very 
analogous is met with, coming on in the daytime, in paroxysms, 
during which the person is affected in the same manner as in 
the state of somnambulism, particularly with an insensibility 
to external impressions: this presents some singular phenomena. 
These attacks in some cases come on without any warning; in 
others, they arc preceded by a noise or sense of confusion in 
the head. The individuals then become more or less abstracted, 
and are either unconscious of any external impressions, or very 
confused in their notions of external things. They are fre- 
quently able to talk in an intelligible and consistent manner, 
but always in reference to the impression which is present in 
475 476 
MENTAL UNSOUNDNESS. 
[book i. 
their own minds. They in some cases repeat long pieces of 
poetry, often more correctly than they can do in their waking 
state, and not nnfreqnently things which they could not repeat 
in their state of health, or of which they were supposed to be 
entirely ignorant. In other cases they hold conversations with 
imaginary beings, or relate circumstances or conversations 
which occurred at remote periods, and which they were sup- 
posed to have forgotten. Some have been known to sing in a 
style far superior to anything they could do in their waking 
state; and there are some well-authenticated instances of per- 
sons in this condition expressing themselves correctly in lan- 
guages with which they were imperfectly acquainted. I had 
lately under my care a young lady who is liable to an affection 
of this kind, which comes on repeatedly during the day, and 
continues from ten minutes to an hour at a time. "Without 
any warning, her body became motionless, her eyes open, fixed, 
and entirely insensible, and she became totally unconscious of 
any external impression. She has been frequently seized wdiile 
playing on the piano, and has continued to play, over and over, 
part of a tune with perfect correctness, but without advancing 
beyond a certain point. On one occasion she was seized after 
she had begun to play from the book a piece of music which 
was new to her. During the paroxysm she continued the part 
which she had played, and repeated it five or six times with 
perfect correctness; but on coming out of the attack she could 
not play it without the book. During the paroxysms the indi- 
viduals are, in some instances, totally insensible to anything 
that is said to them; but in others they are capable of holding 
conversation with another person with a tolerable degree of 
consistency, though they are influenced to a certain degree by 
these mental visions, and are very confused in their notions of 
external things. In many cases, again, they are capable of 
going on with the manual occupations in which they had been 
engaged before the attack. This occurred remarkably in a 
watchmaker’s apprentice mentioned by Martinet. The pa- 
roxysms on him appeared once in fourteen days, and com- 
menced with a feeling of heat extending from the epigastrium 
to the head. This was followed by confusion of thought, and 
this by complete insensibility; his eyes were open, but fixed 
476 BOOK I.j 
SOMNAMBULISM. 
477 
and vacant, and he was totally insensible to anything that was 
said to him, or to any external impression. But he continued 
his usual employment, and was always much astonished, on 
his recovery, to find the change that had taken place in his 
work since the commencement of his paroxysm. This case 
afterwards passed into epilepsy. Some remarkable phenomena 
are presented by this singular affection, especially in regard to 
exercises of memory and the manner in which old associa- 
tions are recalled into the mind: also, in the distinct manner 
in which the individuals sometimes express themselves on 
subjects with which they had formerly shown but an imperfect 
acquaintance. In some of the French cases of epidemic 
‘extase,’ this had been magnified into speaking unknown 
languages, predicting future events, and describing occurrences 
of which the persons could not have possessed any knowledge. 
These stories seem, in some cases, to resolve themselves merely 
into embellishment of what really occurred, but in others 
there can be no doubt of connivance and imposture. Some 
facts, however, appear to be authentic, and are sufficiently 
remarkable. Two females, mentioned by Bertrand, expressed 
themselves during the paroxysm very distinctly in Latin. 
They afterward admitted that they had some acquaintance 
with the language, though it was imperfect. An ignorant 
servant-girl, mentioned by Dr. Dewar, during paroxysms of 
this kind showed an astonishing knowledge of geography and 
astronomy; and expressed herself in her own language in a 
manner which, though often ludicrous, showed an under- 
standing of the subject. The alternations of the seasons, for 
example, she explained by saying that the world was set a-gee. 
It was afterwards discovered that her notions on this subject 
had been derived from hearing a tutor giving instructions to 
the young people of the family. A woman who was some 
time ago in the Infirmary of Edinburgh on account of an 
affection of this kind, during her paroxysms mimicked the 
manner of the physicians, and repeated correctly some of their 
prescriptions in the Latin language. Another very singular 
phenomenon presented by some instances of this affection is 
what has been called, rather incorrectly, a state of double con- 
sciousness. It consists in the individual recollecting, durino- 
477 478 
MENTAL UNSOUNDNESS. 
[book i. 
a paroxysm, circumstances which occurred in a former attack, 
though there was no remembrance of them during the interval. 
This, as well as various other phenomena connected with the 
affection, is strikingly illustrated in a case described by Dr. 
Dyce, of Aberdeen, in the Edinburgh Philosophic Transactions. 
The patient was a servant-girl, and the affection began with 
fits of somnolency, which came upon her suddenly during the 
day, and from which she could, at first, be aroused by shaking, 
or by being taken out in the open air. She soon began to 
talk a great deal during the attacks, regarding things which 
seemed to be passing before her, as a dream; and she was not, 
at this time, sensible of anything that was said to her. On 
one occasion she repeated distinctly the baptismal service of 
the Church of England, and concluded with an extemporary 
prayer. In her subsequent paroxysm she began to understand 
what was said to her, and to answer with a considerable degree 
of consistency, though the answers were generally, to a certain 
degree, influenced by her hallucinations. She also became 
capable of following her usual employments during the pa- 
roxysm ; and at one time she laid out the table correctly for 
breakfast, and repeatedly dressed herself and the children of 
the family, her eyes remaining shut the whole time. The 
remarkable circumstance was now discovered, that during the 
paroxysm she had a distinct recollection of what took place 
in her former paroxysms, though she had no remembrance of 
it during the intervals. At one time she was taken to church 
while under the attack, and there behaved with propriety, 
evidently attending to the preacher; and she was at one time 
so much affected as to shed tears. In the interval she had no 
recollection of having been at church; but in the next pa- 
roxysm she gave a most distinct account of the sermon, and 
mentioned particularly the part of it by which she had been 
so affected. This woman described the paroxysm as coming 
on with a cloudiness before her eyes, and a noise in the head. 
During the attack her eyelids were generally half-shut; her 
eyes sometimes resembled those of a person afflicted with 
amaurosis—that is, with a dilated and insensible state of the 
pupil, but sometimes they were quite natural. She had a dull, 
478 BOOK I.] 
SOMNAMBULISM. 
[§ 497 
vacant look; but, when excited, knew what was said to lier, 
though she often mistook the person who was speaking; and 
it was observed that she seemed to discern objects best which 
were faintly illuminated. The paroxysms generally continued 
about an hour, but she could often be roused out of them; 
she then yawned and stretched herself, like a person awaking 
out of a sleep, and instantly knew those about her. At one 
time, during the attack, she read distinctly a portion of a book 
which was presented to her; and she often sung, both sacred 
and common pieces, incomparably better, Dr. Dyce affirms, than 
she could do in a waking state. The affection continued to 
recur for about six months, and ceased when a particular 
change took place in her constitution.” 
§ 497. “We have another very remarkable modification of 
this affection, referred to by Mr. Combe, as described by Major 
Elliot, Professor of Mathematics in the United States Military 
Academy at West Point. The patient was a young lady of 
cultivated mind, and the affection began with an attack of 
somnolency, which was protracted several hours beyond the 
usual time. When she came out of it, she was found to have 
lost every kind of acquired knowledge. She immediately 
began to apply herself to the first elements of education, and 
was making considerable progress, when, after several months, 
she was seized with a second fit of somnolency. She was now 
at once restored to all the knowledge which she had possessed 
before the first attack, but without the least recollection of 
anything that had taken place during the interval. After 
another interval she had a third attack of somnolency, which 
left her in the same state as after the first. In this manner 
she suffered these alternate conditions for a period of four 
years, with the very remarkable circumstance that during one 
state she retained all her original knowledge, but during the 
other, that only which she had acquired since the first attack. 
During the healthy interval, for example, she was remarkable 
for the beauty of her penmanship; but during the paroxysm, 
wrote a poor, awkward hand. Persons introduced to her 
during the paroxysm, she recognized only in a subsequent 
paroxysm, but not in the interval; and persons whom she had 
479 480 
MENTAL UNSOUNDNESS. 
[book i. 
seen for the first time during the healthy interval, she did not 
recognize under the attack. ”(A) 
§ 498. Carus tells us in his lectures (Leipsic, 1881) of a 
clergyman who was a somnambulist, who would get up in his 
sleep, take paper, and write out a sermon. If a passage did 
not please him, he would strike it out, and correct it with 
great accuracy. We are told by Steltzer of a somnambulist who 
clambered out of a garret window, descended into the next 
house, and killed a young girl who was asleep there.(z) As a 
set-off to these, we have the case of a preassumed somnam- 
bulism for the purpose of cloaking an intended crime.(j ) 
§ 499. A curious example of somnambulism, observed in a 
monk, is mentioned by M. de Savarin, as related to him by the 
Prior of the convent where it happened, who was an eye-wit- 
ness of the occurrence. “Very late one evening the patient 
somnambulist entered the chamber of the Prior, his eyes were 
open but fixed, the light of two lamps made no impression 
upon him, his features were contracted, and he carried in his 
hand a large knife. Going straight to the bed, he had first 
the appearance of examining if the Prior was there. He then 
struck three blows, which pierced the coverings, and even a 
mat which served the purpose of a mattress. In returning, his 
countenance was unbent, and was marked by an air of satisfac- 
tion. The next day the Prior asked the somnambulist what he 
had dreamed of the preceding night, and the latter answered 
that he had dreamed that his mother had been killed by the 
Prior, and that her ghost had appeared to him demanding 
vengeance, that at this sight he was so transported by rage, 
that he had immediately run to stab the assassin of his mother; 
that, a little while after, he awoke bathed in perspiration, and 
very content to find he had only dreamed.” M. de Savarin 
adds, that, if under these circumstances the Prior had been 
killed, the monk somnambulist could not have been punished, 
because it would have been upon his part an involuntary 
murder. (A:) 
(7i) Abercrombie on the Intellectual Powers, p. 238, etc. 
(t) Steltzer, uber den Willen, Leips., 1817-8, p. 273. 
(j) Fahner, System der Ger. Arznei. 1 Bd. p. 43. 
(k) Pbysiologie du gout, tome ii. p. 3. Paris, 1834. 
480 BOOK I.] 
SOMNAMBULISM. 
481 
§ 500. “Yon have all heard,” said Sir William Hamilton, 
in one of his lectures on metaphysics, “ of the phenomenon of 
somnambulism. In this remarkable state the various mental 
faculties are usually in a higher degree of power than in the 
natural. The patient has recollections of what he has wholly 
forgotten. lie speaks languages of which, when awake, he 
remembers not a word. If he uses a vulgar dialect when out 
of this state, in it he employs only a correct and elegant 
phraseology. The imagination, the sense of propriety, and the 
faculty of reasoning, are all in general exalted. The bodily 
powers are in high activity, and under the complete control of 
the will; and, it is well known, persons in this state have fre- 
quently performed feats, of which, when out of it, they would 
not even have imagined the possibility. And, what is even 
more remarkable, the difference of the faculties in the two 
states seems not confined merely to a difference in degree. For 
it happens, for example, that a person who has no ear for music 
when awake shall, in his somnambulic crisis, sing with the 
utmost correctness and with full enjoyment of his performance. 
Under this affection persons sometimes lie half their lifetime, 
alternating between the normal and abnormal states, and per- 
forming the ordinary functions of life indifferently in both, 
with this distinction, that if the patient be dull and doltish 
when he is said to be awake, he is comparatively alert and in- 
telligent when nominally asleep. I am in possession of three 
works, written during the crisis by three different somnambu- 
lists. Yow it is evident that consciousness, and an exalted con- 
sciousness, must be allowed in somnambulism. This cannot 
possibly be denied; but mark what follows. It is the peculiarity 
of somnambulism—it is the differential quality by which that 
state is contradistinguished from the state of dreaming—that 
we have no recollection, when we awake, of what has occurred, 
during its continuance. Consciousness is thus cut in two; 
memory does not connect the train of consciousness in one state 
with the train of consciousness in the other. When the patient 
again relapses into the state of somnambulism, he again remem- 
bers all that had occurred during every former alternation of 
that state; but he not only remembers this, he recalls also the 
events of his normal existence; so that, whereas the patient 
VOL. I.—31 
481 482 
MENTAL UNSOUNDNESS. 
[book i. 
in his somnambulic crisis has a memory of his whole life, in 
his waking interval he has a memory only of half his life. At 
the time of Locke, the phenomena of somnambulism had been 
very little studied; nay, so great is the ignorance that prevails 
in this country in regard to its nature even now, that you will 
find this, its distinctive character, wholly unnoticed in the best 
works upon the subject. But this distinction you observe is 
incompetent always to discriminate the state of dreaming and 
somnambulism. It may be true that if we recollect our visions 
during sleep, this recollection excludes somnambulism, but the 
want of memory by no means proves that the visions we are 
known by others to have had were not common dreams. The 
phenomena, indeed, do not always enable us to discriminate 
the two states. Somnambulism may exist in many different 
degrees; the sleep-walking from which it takes its name is 
only one of its higher phenomena, and one comparatively rare. 
In general, the subject of this affection does not leave his bed, 
and it is then frequently impossible to say whether the mani- 
festations exhibited are the phenomena of somnambulism or of 
dreaming. Talking during sleep, for example, may be a symp- 
tom of either, and it is often only from our general knowledge 
of the habits and predispositions of the sleeper, that we are 
warranted in referring this effect to the one and not the other 
class of phenomena. We have, however, abundant evidence 
to prove that forgetfulness is not a decisive criterion of somnam- 
bulism. Persons whom there is no reason to suspect of this 
affection, often manifest during sleep the strongest indications 
of dreaming, and yet, when they awaken in the morning, re- 
tain no memory of what they may have done or said during 
the night. Locke’s argument, that, because we do not always 
remember our consciousness during sleep, we have not, there- 
fore, been always conscious, is thus on the ground of fact and 
analogy disproved. ”(7) 
§ 501. Prof. Jessen, of Ilomheim, near Kiel, a distinguished 
practical alienist, gives the following:— 
“ On a wintry morning, between five and six o’clock, I was 
aroused, as I thought, by the head nurse, who reported to me 
482 
(l) Lectures on Metaphysics, p. 282. BOOK I.] 
DEPRESSION. 
483 
that some people had come for one of the male patients, and 
who at the same time asked me whether I had any particular 
orders to give. I replied that the patient might depart, and 
after he had left the room I turned around to go to sleep again. 
All at once i t struck me that I had previously not heard any- 
thing regarding the intended departure of this patient, but 
that only the prospective departure of a woman of the same 
name had been reported to me. This compelled me to inquire 
more particularly after the circumstances, and accordingly I 
lighted a candle, rose, dressed myself, and went to the room 
of the head nurse. To my surprise I found him only half 
dressed, and, in reply to my inquiry after the people who had 
called for the patient, he said, with an expression of astonish- 
ment, that he did not know anything of it, as he had but just 
left his bed, and no one had called on him. This answer did not 
arouse my consciousness, but I rejoined that then the steward 
must have been in my room, and that I should accordingly 
go to see and ask him regarding the matter. When descend- 
ing a few steps in the middle of the corridor which led to the 
room of the steward, I suddenly became conscious of having 
dreamed only what until that moment I had believed to be an 
experience whose reality I had not doubted in the least.” 
F. Mental unsoundness as affecting the temperament.(wi) 
(a1) DEPRESSION.(n) 
§ 502. By this term may be designated a condition of des- 
pondency which continues for a long time, even for years, 
without assuming the form of real aberration of mind, but 
which derives peculiar importance and significance in matters 
of penal jurisprudence, from the fact that in such cases a 
criminal act often introduces the transition to patent insanity, 
inasmuch as it makes its appearance as the first decisive symp- 
tom, which is rapidly followed by others. 
§ 503. To Morel we are indebted for the following sketch of 
(m) See Etudes Medico-Psycliologiques sur P Alienation Mentale, par L. 
F. E. Renaudin, Chapter II. p. 36. Paris, 1854. 
(n) See Kralimer, Handbuch der Gericht. Med. Halle, C. A. Schwetschke, 
1851, § 109 ; Siebold Lehrbuch der Gericht. Med. Berlin, 1847, § 200. 
483 484 
MENTAL UNSOUNDNESS. 
[book i. 
primitive or simple depression.^1) As there exists a mania 
which shows itself rather in insanity of action than of mind 
(manie instinctive), so likewise there exists a state of melan- 
choly without delirium. Without our often being able to 
instance other causes than those phenomena which accom- 
pany the change from adolescence to puberty, from puberty 
to age, and from mature age to the critical period; at the 
happiest periods of life, we feel a vague weariness, a motive- 
less fear, an indefinable sadness, which sometimes is only 
transitory, and at others is the starting point of the most 
serious disturbances. It is, says Guislain, a state of sadness, 
of dejection accompanied with or without the shedding of 
tears, without any notable aberration of imagination, intel- 
ligence, or feeling. It is the heart which exclusively suffers, 
but soon this suffering of the heart shows itself in a prostra- 
tion of all the intellectual powers, a state which absorbs all 
individual energy, and appears only to leave the capacity of 
suffering. Where is the man who has not experienced these 
painful feelings ? and if by an effort of reasoning we are able to 
affix the form of continuity to these sensations, which are only 
sometimes fugitive, we will have a perfect idea of this intolera- 
ble state. Madame de Stael vividly touches on this in Corinne. 
“ She (Corinne) had taken such a horror for all the common 
pursuits of life that to take the least resolution, to give the 
least order, caused her an increase of pain. She was unable 
to live except in perfect inactivity. She arose, laid down, 
arose again, opened a book without being able to understand 
a line; often she remained for hours at her window, and then 
would walk with rapidity in her garden. At another time 
she would take a bouquet of flowers and try to make herself 
dizzy with their perfume. Time, a never ceasing pain, the 
feeling of existence pursued her, and she sought relief in a 
thousand ways from that devouring faculty of thought which 
did not now yield, as formerly, a variety of reflections, but 
one single idea, one single image, armed with cruel points that 
tore her heart. Every word was formed wfith difficulty, and 
(ji1) Trait6 theorique et pratique des Maladies Mentales, par M. Morel, 
tome i. p. 386. Paris, 1852. 
484 BOOK I.] 
DEPRESSION. 
[§ 504 
often she traced words conveying no sense, words that even 
frightened her, when she attempted to re-read them, as if the 
pain of the fever was there written. Feeling herself then inca- 
pable of turning her thoughts from her own condition, she 
painted all that she had suffered, but it was no longer in those 
general ideas, those universal feelings that find a response in 
every heart; hut it was the cry of anguish, a long monotonous 
cry, it was misfortune, but it was no longer genius.” 
§ 504. When a like condition,says Guislain, is accompanied 
with anxieties, groaning, sobs, a desire to commit suicide, 
or any other determination, it is no longer in its simplest 
state. * * I, on the contrary, think that a like condition 
can continue in connection with the above-mentioned ten- 
dencies. How else could we explain those suicides without 
name, those irregular actions of which we see so many ex- 
amples in instinctive mania, the affection which, above all 
others, has the closest relation to melancholy ? In the greater 
number of cases, these forms are distinguishable less perhaps 
by the diversity of the acts than by the nature of the depres- 
sive principles. We may readily admit that instinctive maniacs 
generally betray themselves by more froward deeds, and by 
more sudden and more cruelly energetic and destructive de- 
terminations, than the simple hypomaniacs, who rather turn 
against themselves their fatal homicidal impulses. In the first 
case also the depravity of the instincts is more often connected 
with the organic affections, a vicious education, or a prior state 
of immorality, whilst in the latter class the impulse which 
they themselves deplore is the harder to be understood, 
because (1) the individual is generally placed in the most 
favorable social condition ; (2) his education has left nothing 
to be wished for, and (3) his delicate sensibility would never 
cause the actions to which he is irresistibly forced in this un- 
fortunate unhealthy state to be suspected. 
This mental condition, which I have often had opportunity 
of observing, was strikingly illustrated in the general state of 
a deranged female, who, in 1842, was placed under the care of 
M. Falret, at la Salpetri5re hospital. The patient showed no 
insanity in her language. Gifted with high intelligence and 
great tenderness of heart, belonging to a family that had 
485 § 504] 
MENTAL UNSOUNDNESS. 
[book i. 
suffered misfortune, but who in the time of their prosperity 
had neglected nothing for her education, Virginia Mac 
A e, who had courageously suffered the reverses of fortune, 
and created for herself a new position, was unable to explain 
the loss of her moral sensibility and the causes of an inex- 
pressible sadness which left her no other resource but tears. 
“ The future,” she writes, “ which presents hope to every 
reasonable being, offers to my mind an abyss of evils which it 
is impossible for me to bear. I want nothing; the beings that 
I most cherish, I wish their death, because I have always seen 
that that which forms the happiness of others is my affliction. 
I, the eldest, who should have been the consolation of the 
mother whom I so much loved, have caused her nothing but 
miseiy. When I experienced the incomprehensible disgust for 
life, then, lying beside her, I dared propose to her to set fire to 
the bed, in order that we might die together; she whom I 
have seen lose her consciousness at the idea only of seeing one 
of her children die, she who would still sacrifice herself if she 
could return to me the force and energy that are wanting, I 
have only the more discouraged, by constantly telling her that 
we were entirely without hope. The child, also, who was for- 
merly my delight, has become an object of indifference. The 
night is for me more sad than for a criminal whom the laws 
have condemned to die, because he knows that his life will 
soon end; whilst, in spite of the despair of my soul, in spite 
of my disturbed sleep, I find myself every day in sound health, 
and yet without force and without courage. The beautiful 
sky, that God created to delight his children, serves only to 
sadden still more my thoughts. I would wish to again become 
a child, to recover the innocence of childhood; why cannot I 
feel that calm which is sometimes felt in the spring imme- 
diately after the winter. I compare myself to a poor woman 
who has for a long time had nothing but the produce of her 
hands whereby to raise up her children, and who, in spite of 
fatigue and watching, does not abandon them as I abandoned 
my Marie—I, who am only thirty-four, who am in full posses- 
sion of strength and health, and who have not power of direct- 
ing to any useful end the faculties imparted me by Heaven.” 
Such was the position of a patient who now presents us the 
486 BOOK I.] 
DEPRESSION. 
[§ 505 
example of simple melancholy without delirium. In such 
cases we will observe that this state, so full of agony, is often 
nothing but a period of transition to systematic delirium; and 
we will also remark the differences existing between this pri- 
mitive depression and the incubation of mania, which may, it 
is true, commence with depression and finish with exaltation, 
but which, in the greater number of cases, betrays itself in an 
abnormal activity, and in the development of intellectual apti- 
tudes, which have not been before remarked in the patient. 
Here, on the contrary, all the faculties appear overwhelmed by 
the depressive principle. The occupations they most cherished 
are insupportable to them, and the intellectual labors in which 
they most excelled, they are unable to perform. The poet 
loses his art, and the author his skill, the mathematician notes 
down false numbers, and the artist and the workman no longer 
possess their aptness for the performance of the mechanical 
parts or'manual of their profession. Nor can it be otherwise. 
Without doubt, to write and think wrell we must be under 
the influence of some emotion, but this emotion should be true 
and not morbid. Contentment is necessary to everything, and 
the most gloomy poetry must be inspired by a kind of spirit, 
which presupposes both energy and intellectual possessions. 
True grief has no natural fecundity, that which it produces is 
nothing but a gloomy agitation which constantly brings back 
the same thoughts.(o) 
§ 505. “Depression of mind,” says Reid, “may be owing to 
melancholy, a distemper of the mind which proceeds from the 
state of the body, which throws a dismal gloom upon every 
object of thought, cuts all the sinews of action, and often 
gives rise to strange and absurd opinions in religion, or in 
other interesting matters. Yet, where there is real worth at 
the bottom, some rays of it will break forth even in this de- 
pressed state of mind. A remarkable instance of this was 
exhibited in Mr. Simon Brown, a dissenting clergyman in 
England, who, by melancholy, was led into the belief that his 
rational soul had gradually decayed within him, and at last 
(o) See Traite theorique et pratique des Maladies Ment. de M. Morel, 
tome i. p. 336. Paris, 1852. 
487 488 
MENTAL UNSOUNDNESS. 
[book i. 
was totally extinct. From this belief he gave np his minis- 
terial function, and would not join with others in any act of 
worship, conceiving it to be a profanation to worship God 
without a soul. In this dismal state of mind he wrote an 
excellent defence of the Christian religion against Tindal’s 
‘ Christianity as Old as the Creation.’ To the book he pre- 
fixed an epistle, dedicatory to Queen Caroline, wherein he 
mentions, ‘ that he was once a man, but, by the immediate 
hand of God for his sins, his very thinking substance has, for 
more than seven years, been continually wasting away, till it 
is wholly perished out of him, if it be not utterly come to 
nothingand, having heard of her Majesty’s eminent piety, 
he begs the aid of her prayers. The book was published after 
his death without the dedication, which, however, having been 
preserved in manuscript, was afterwards printed in the 4 Ad- 
venturer.’ Thus this good man, when he believed that he 
had no soul, showed a most generous and disinterested concern 
for those who had souls. As depression of mind may produce 
strange opinions, especially in the case of melancholy, so our 
opinions may have a very considerable influence either to 
elevate or depress the mind, even where there is no melan- 
choly. Suppose, on one hand, a man who believes that he is 
destined to an eternal existence; that lie who made and who 
governs the -world maketh an account of him, and hath fur- 
nished him with the means of attaining a high degree of per- 
fection and glory. With this man compare, on the other 
hand, the man who believes nothing at all, or who believes 
that his existence is only the play of atoms, and that after he 
has been tossed about by blind fortune for a few years, he shall 
again return to nothing. Can it be doubted that the former 
opinion leads to elevation and greatness of mind, and the latter 
to meanness and depression !”(p) 
§ 506. “ A pleasant season,” says Dr. Rush, “ a fine day, or 
even the morning sun, often suspends the disease. Mr. Cowper, 
who knew all its symptoms by sad experience, bears witness 
to the truth of this remark, in one of his letters to Mr. Ilaly. 
‘I rise,’ says he, ‘cheerless and distressed, and brighten as the 
(p) Reid on the Active Powers of Opinion, p. 576. 
488 BOOK I.] 
HYPOCHONDRIA. 
[§ 508 
sun goes on.’ Its paroxysms are sometimes denoted ‘ low spirits.’ 
They continue from a day, a week, a month, a season, to a 
year, and sometimes longer. The intervals differ—1, in being 
accompanied with preternatural high spirits; 2, in being 
attended with remissions only; and 3, with intermissions, or, 
in other words, in correctness and equanimity of mind. The 
extremes of high and low spirits, which occur in the same 
person at different times, are happily illustrated by the follow- 
ing case: A physician in one of the cities of Italy was once 
consulted by a gentleman who was much distressed with a 
paroxysm of this intermitting state of hypochondriacism. He 
advised him to seek relief in a convivial manner, and recom- 
mended him in particular to find out a gentleman of the name 
of Cardini, who kept all the tables in the city, to which he 
was occasionally invited, in a roar of laughter. ‘Alas! sir,’ 
said the patient, with a heavy sigh, ‘ I am that Cardini.’ 
Many such characters, alternately marked by high and low 
spirits, are to be found in all the cities in the world.”(g) 
§ 507. In cases of settled depression, the patient on the one 
hand is fully convinced that his notions and wishes ought to 
be realized; but on the other he feels the impossibility of 
effecting their realization. He therefore makes no effort to 
render possible the impossible; yet he cannot resign the ideal, 
which he bears in his bosom; he loves his fictions, or the 
objects of his wishes so much, that he cannot part with them. 
Thus he consumes his existence in a monotonous grief; he can- 
not take interest in anything except the object of his sadness.(r) 
(b1) Hypochondria.(s) 
§ 508. When the morbid despondency noticed under the 
last head extends to the general tone of bodily sensations, a 
(q) Rush, on the Mind, pp. 82, 83. (r) Rauch’s Psychology, 151. 
(s) See Krahmer, Handbuch der Gericht. Med. Halle, C. A. Schwetschke, 
1851, § 109 ; Siebold, Lehrbuch der Gericht. Med. Berlin, 1747, § 208. See 
De l’Hypochondrie et du Suicide. Par J. P. Palfret. Paris, 1822 ; Renau- 
din sur l’Alienation Mentale, p. 99. Paris, 1854. See also on this point the 
following w'orks: Confessions of a Hypochondriac, or the Adventures of a 
Hypochondriac in search of Health. Saunders & Otley, London, 1849 ; Re- 
view of same, Journ. of Psychol. Med. vol. iii. p. 1. 
489 MENTAL UNSOUNDNESS. 
[book i. 
condition is produced which we commonly call hypochondria. 
In the inferior stages the patient retains sufficient self-control 
to conceal if not forget his condition, and proceed unhindered 
in his occupations; but in the higher degrees he becomes so 
absorbed in his bodily sensations as to exhibit it in his appear- 
ance and conduct, disregarding every effort made to raise his 
spirits, and reducing all his reflections to the common machi- 
nery of personal questions and answers.(i) As this sort of 
selfishness increases, the mind is often filled with envy, hatred, 
bitterness, suspicion, and revenge towards others, and parti- 
cularly towards those in whom the patient believes himself 
to detect a want of sympathy, or even of respect, or whom 
he regards as the authors of his distress. The result of this 
is too apt to he a series of unjust surmises and accusations, 
personal ill-treatment of others, and even murderous threats 
and assaults against the supposed wrong-doers, as well as the 
commission of suicide. In the judicial scrutiny and consider- 
ation of such a case, it is essential to inquire how far and for 
what length of time the attention of the patient can be 
directed from his bodily feelings to other objects; what is his 
personal opinion of his own condition ; whether any, and if 
any what, insane ideas possess his mind, and what is his gene- 
ral demeanor. Where the perceptive faculty was not so far 
involved in the progress of the disease as to falsify the im- 
pressions of the senses, and deprive the consciousness of the 
power of correcting them, the reasons are wanting for deciding 
against the responsibility of the agent; but the judge in pass- 
ing sentence will nevertheless take into account the morbid 
impulse which was a subsidiary cause in the commission of 
the crime.(w) 
§ 509. The following description of the hypochondriacal 
character is to be found in the Medecine Legale de M. 
Orfila.(y) 
Hypochondriacs are above all remarkable for their exagge- 
rated fears upon the state of their health—and the foolish 
(0 Ellinger, p. 105. 
(«) See the above views in Schiirmayer, Gericlit. Med., § 542. 
(v) Tome i. p. 41G. Paris, 1848. 
490 BOOK I.] 
HYPOCHONDRIA. 
[§ 510 
ideas they give utterance to in expressing their sufferings. 
Their temper is very unequal, they pass almost without motive 
from hope to despair, from grief to gayety—from bursts of 
passion to gentleness, from laughter to tears; many are timid, 
pusillanimous, fearful, morose, irascible, restless, hard to please, 
a torment and fatigue to every body. They are easily moved, 
a trifle vexes and agitates them, producing fears, torments, 
and attacks of despair. The greater number show a marked 
change in their affections, they are egotistical, the slightest 
motives cause them to pass from attachment to indifference or 
to hate. They are often susceptible of an exaltation or depres- 
sion of spirits, of a rapid succession of the most opposite ideas 
and emotions, without the will being able to control the thought. 
But those thus affected have a very good judgment in what- 
ever relates to their own interests, and generally in everything 
which is foreign to their health, unless the disease should 
finish in a total loss of reason, a thing which is of very rare 
occurrence. It is only the character above described which 
renders hypochondriacs more likely to yield to fear, and more 
easily moved to contract engagements; suggestive and inveig- 
ling measures exercise considerable influence upon their mind. 
Finally, the jealous, suspicious, irritable, headstrong character 
of hypochondriacs would be an extenuating circumstance, if, 
under a first impulse, they should commit a reprehensible act. 
§ 510. “The hypochondriac, constantly preoccupied with 
his afflictions, seeks by every possible means to penetrate them. 
He often feels his pulse, examines his.tongue and his excretions, 
and frequently discovers in these investigations causes for fear 
or hope, which he sometimes, though the details may be very 
disgusting, takes a sort of pleasure in communicating to 
every body. The great desire to be cured induces him fre- 
quently to change his physician and his treatment. He seeks 
for instruction by reading medical books, and often changes 
his opinion regarding the nature of his malady, inasmuch as 
he applies to his own case all which he reads or hears of. The 
mere mention of a disease is sufficient to start the notion that 
he himself labors under it; and, influenced by this idea, he 
now discovers in the corresponding organs phenomena which 
he had never before experienced. 
491 §511] 
MENTAL UNSOUNDNESS. 
[book I. 
“ But not always is it the fear simply of ordinary bodily 
diseases -which occupies the attention of the hypochondriac 
and is the object of his anxiety. Frequently the mental ele- 
ment in his malady does not escape his notice, and the com- 
plete change of his personality, the possession by morbid 
sensations and ideas, especially, however, a certain anomaly 
particularly in the mental sphere, in the sensorial sensations, 
whereby these, although perceived as formerly, no longer pro- 
duce the same impressions, frequently form the great subject 
of his complaint. This last and very remarkable state, which 
the patients themselves have much difficulty in describing, 
which we also have ourselves observed in several cases as the 
predominant and most lasting symptom, is as well as possible 
described in the following letter of one of Esquirol’s patients. 
“ I still continue to suffer constantly; I have not a moment 
of comfort, and no human sensations. Surrounded by all that 
can render life happy and agreeable, still to me the faculty of 
enjoyment and of sensation is wanting—both have become phy- 
sical impossibilities. In everything, even in the most tender 
caresses of my children, I find only bitterness. I cover them 
with kisses, but there is something between their lips and 
mine; and this horrid something is between me and all the en- 
joyment of life. My existence is incomplete. The functions and 
acts of ordinary life, it is true, still remain to me; but in every 
one of them there is something wanting—to wit, the sensation 
which is proper to them, and the pleasure which follows them. 
* * * Each of my senses, each part of my proper self is as 
it were separated from me and can no longer afford me any sensa- 
tion ; this impossibility seems to depend upon a void which I 
feel in the front of my head, and to be due to the diminution of the 
sensibility over the whole surface of my body, for it seems to me that 
1 never actually reach the objects which I touch. I feel well enough 
the changes of temperature on my skin, but I no longer experience 
the internal feeling of the air when I breathe * * * my eyes 
see and my spirit perceives, but the sensation of that which I see is 
completely wanting,” etc.(w) 
§ 511. That hypochondria, in its simple and primary forms, 
(w) Griesinger’s Mental Pathol. Syden. ed. (1867), § 114. 
492 BOOK I.] 
HYPOCHONDRIA. 
[§ 512 
does not juridically divest the sufferer of responsibility, will 
be admitted when we recall the long number of patients, some 
of them among the most active and useful members of society, 
whom, if this position be accepted, it would be necessary to 
sequestrate at once in a lunatic asylum. But there are cases 
of aggravated and complex hypochondria when the patient can 
be no longer considered a moral agent, and when hence it is 
necessary to strip him of his business capacity, and to place 
him under restraint. Leurot mentions, for instance, a hypo- 
chondriac who sold his farm, placing the produce in the funds, 
so as to be relieved from care—whose incessant attention was 
bestowed on his health—whose sole occupations were “ennui” 
and sleep—who at last would not make the effort of undressing 
himself, sat constantly in a half-darkened room, and who, in 
his absorbing sense of misery seemed to lose taste, smell, and 
motion. A still more acute case is given by Morel, where the 
patient’s intrusive misery was such that his demands for sym- 
pathy from his mother and sisters, and the nervous vehemence 
with which he forced his griefs upon them, operated to 
destroy their health. Of course, when hypochondria reaches 
such a pitch as this, sequestration is necessary to the welfare 
both of the patient and of his friends. 
§ 512. Nor should it be forgotten that hypochondria often 
is complicated with other forms of psychical disease by which 
responsibility is suspended. Thus with hypochondriacs illu- 
sions of personal danger often intervene; and these illusions 
are complex and occasionally overwhelming. Sometimes the 
sufferer is watched by an evil eye. Sometimes he is the victim 
of witchery, magnetism, or poison. Sometimes honor, reputa- 
tion, liberty, are imperilled by a hostile conspiracy. An 
Orange Irishman, for instance, some years back, in Philadel- 
phia, conceived himself to be in danger of his life from a 
conspiracy of Roman Catholics. He in consequence killed one 
of his supposed assailants; and, though there was too strong 
evidence of design on his part, and too clear proof of his con- 
sciousness of the illegality of the act, to permit his acquittal, 
yet the penal sentence imposed by the court wTas commuted 
by the governor to banishment. And it is possible to conceive 
cases of hypochondriacal delusions of such a nature that a 
493 494 
MENTAL UNSOUNDNESS. 
[book i. 
person committing an offence under their influence may think 
he is doing not wrong but right. In such case responsibility 
for the particular act does not juridically exist.(x) 
§ 513. Sometimes, as we are told by Dr. Rush, the pain of 
a bodily disease suspends, for a short time, the mental distress. 
Mr. Boswell, in his life of Dr. Johnson, relates a story of a 
London tradesman who, after making a large fortune, retired 
into the country to enjoy it. Here he became deranged with 
hypochondriasis, from the want of employment. His existence 
became finally a burden to him. At length he was afflicted 
with the stone. In a severe paroxysm of this disease a friend 
sympathized with him. “Ho, no,” said he, “don’t pity me, 
for what I now feel is ease compared with the torture of mind 
from which it relieves me.” A woman in this city bore a child 
while she was afflicted with this disease. She declared imme- 
diately afterwards that she felt no more pain from parturition 
than from a trifling fit of the colic. Where counteracting pains 
of the body are not induced by nature or accident to relieve 
anguish of mind, patients often inflict them upon themselves. 
Walking barefooted over ground covered with frost and snow 
was resorted to by a clergyman of great worth in England for 
this purpose. Carden, an eminent physician of the fifteenth 
century, made it a practice to bite his lip and one of his arms, 
in order to ease the distress of his mind. Ivempfer tells us 
that prisoners in Japan, who often became partially deranged 
from distress, used to divert their mental anguish by burning 
their bodies with moxa; the same degree of pain, and for the 
same purpose, is often inflicted upon the body, by cutting and 
mangling it in parts not intimately connected with life. But 
bodily pain, whether from an accidental disease, or inflicted 
by patients upon themselves, is sometimes insufficient to pre- 
dominate over the distress of their minds. Dr. Herberden 
mentions an instance of a man, who was naturally so afraid of 
pain that he dreaded even being bled, who in a fit of low spirits 
cut off his penis and scrotum with a razor, and declared, after 
he recovered the natural and healthy state of mind, that he 
felt not the least pain from that severe operation. A similar 
494 
(x) Supra, § 125. book I.] 
HYPOCHONDRIA. 
[§ 515 
instance of insensibility to bodily pain is related by Dr Rug- 
gieri, an Italian physician, of a hypochondriac madman, of the 
name of Louvel, who fixed himself on a cross and inflicted 
the same wounds upon himself, as far as he was able, that 
had been inflicted on our Saviour. lie was discovered in 
this situation and taken down alive. During the paroxysms 
of his madness he felt no pain from dressing his wounds, but 
complained as soon as they were touched in the intervals of 
his disease. 
§ 514. Dr. Haindorft, in his German translation of Dr. 
Reid’s “ Essay on Hypochondriasis,” in alluding to the possi- 
bility of a patient laboring under hypochondriasis being able, 
by an exercise of the power of volition, to control his morbid 
sensations, justly observes, “We should have fewer disorders 
of the mind if we could acquire more power of volition, and 
endeavored by our own energy to disperse the clouds which 
occasionally arise within our own horizon; if we resolutely tore 
the first threads of the net which gloom and ill-humor may cast 
around us, and made an effort to drive away the melancholy 
images of a morbid imagination by incessant occupation. 
How beneficial would it be to mankind if this truth were 
universally acknowledged and acted upon, viz., that our state 
of health, mental as well as bodily, principally depends upon 
ourselves!” 
“By seeming gay we grow to what we seem.” 
It was the remark of a man of great observation and knowledge 
of the world, “ Only wear a mask for a fortnight, and you will 
not know it from your own face.”(y) 
§ 515. A French writer mentions the case of a rich peasant 
who was possessed with the idea that he was bewitched, and 
who complained to his medical attendant that seven devils had 
taken up their abode in his body. “Seven, not more? ” was 
the physician’s inquiry. “ Only seven,” was the reply. The 
physician promised him to rid him of the visitors, one each 
day, upon condition that for the first six he was paid twenty 
francs, but for the seventh, who was the chief of the band, 
forty. The patient agreed, and was subjected by the physician, 
(y) Winslow on Suicide, pp. 169, 170. 
495 §516] 
MENTAL UNSOUNDNESS. 
[book i. 
who set apart the fee for charity, to a series of daily shocks 
from the Leyden jars, the seventh and last of which was so 
powerful as to produce a fainting fit in the supposed demoniac, 
who, however, awoke from it entirely freed from his 
§ 516. Burns suffered much from indigestion, producing 
hypochondria. Writing to his friend, Mr. Cunningham, he 
says: “Canst thou not minister to a mind diseased? Canst 
thou speak peace and rest to a soul tossed on a sea troubles, 
without one friendly star to guide her course, and dreading 
that the next surge may overwhelm her? Canst thou give to 
a frame, tremblingly alive to the tortures of suspense, the sta- 
bility and hardihood of a rock that braves the blast ? If thou 
canst not do the least of these, why wouldst thou disturb me 
in my miseries with thy inquiries after me?” From early 
life, the poet was subject to a disorded stomach, a disposition 
to headache, and an irregular action of the heart. He describes, 
in one of his letters, the horrors of his complaint: “ I have 
been for some time pining under secret wretchedness. The 
pang of disappointment, the sting of pride, and some wander- 
ing stabs of remorse, settle on my life like vultures, when 
my attention is not called away by the claims of society, or 
the vagaries of the music. Even in the hour of social mirth, 
my gayety is the madness of an intoxicated criminal under the 
hands of an executioner. My constitution was blasted, ab 
origine, with a deep, incurable taint of melancholy that poisoned 
my existence.”(a) 
(s) Annales Med. Psyc., 1847. 
(<z) Winslow on Suicide, 147. Burton, in liis Anatomy of Melancholy, has 
described this state: “They are soon tired with all things; they will now 
tarry, now begone ; now in bed they will rise, now up, then they go to bed ; 
now pleased, and then again displeased ; now they like, by-and-by they dis- 
like all, weary of all. ‘ Sequitur nunc vivendi, nunc moriendi, cupido,’ 
saith Aurelianus. Discontented, disquieted upon every light occasion or no 
occasion, often tempted to make away with themselves; they cannot die, 
they will not live ; they complain, weep, lament, and think they live a most 
miserable life ; never was any man so bad. Every poor man they see is most 
fortunate in respect of them. Every beggar that comes to the door is happier 
than they are. Jealousy and suspicion are common symptoms of this misan- 
thropic variety. They are testy, pettish, peevish, distrustful, apt to mistake, 
and ready to snarl, upon every occasion and without any cause, with their 
dearest friends. If they speak in jest, the hypochondriac takes it in good 
496 BOOK I.J 
HYSTERIA. 
[§ 517 
§ 517. Hysteria, which only attacks individuals of the female 
sex, or males having a feminine organization, resembles hypo- 
(c1) Hysteria.(b) 
earnest; if tlie smallest ceremony be accidentally omitted, he is wounded to 
the quick. Every tale, discourse, whisper, or gesture, he applies to himself; 
or, if the conversation be openly addressed to him, he is ready to misconstrue 
every word, and cannot endure that any man should look steadily at him, 
laugh, point the finger,' cough, or sneeze. Every question or movement 
works upon him and is misrepresented, and makes him alternately turn pale 
or red, and even sweat with distrust, fear, or anger.” 
And thus says Charles Lamb:— 
“By myself walking, 
To myself talking; 
When, as I ruminate 
On my untoward fate, 
Scarcely seem I 
Alone sufficiently: 
Black thoughts continually 
Crossing my privacy; 
They come unbidden, 
Like foes at a wedding, 
Thrusting their faces 
In better guests’ places ; 
Peevish and malcontent, 
Clownish, impertinent, 
Dashing the merriment. 
So, like the fashions, 
Dim cognitions 
Follow and haunt me, 
Striving to daunt me ; 
In my heart festering, 
In my ears whispering, 
‘ Thy friends are treacherous, 
Thy foes are dangerous, 
Thy dreams are ominous.’ 
Fierce Anthropophagi, 
Spectra Diaboli, 
What scared St. Anthony; 
Hobgoblins, Lemures, 
Dreams of Antipodes, 
Night-riding incubi, 
Troubling the fantasy, 
All dire illusions 
Causing confusions; 
(5) Siebold, Lelirbucli aer Gericht. Med., Berlin, 1847, § 208; Kralimer, 
Handbuch der Gericht. Med. Halle, C. A. Schwetschke, 1851, § 110. 
vol. i.—32 
497 §518] 
MENTAL UNSOUNDNESS. 
[book i. 
chondria in its mental and moral symptoms; but the nauseous 
and painful feelings manifest themselves in convulsions, and 
the alternation between the different states of feeling is far more 
abrupt.(c) 
Hysteria presents the same difficult complications as epilepsy. 
Psychical disease may either be intermingled with, or entirely 
absorb, physical. Sometimes the mental type may be that of 
ecstasy; sometimes that of profound terror-stricken anguish, 
influencing the patient to abnormal if not illegal acts. 
§ 518. Liman(eJ) mentions as psychical symptoms of hysteria, 
irritability; impressionability; want of psychical energy and 
positiveness; thraldom to physical and psychical impressions; 
capriciousness; rapid change of mood on little or no cause; 
inclination to deceit, falsehood, exaggeration, and simulation ; 
propensity to the odd, the eccentric, the evil, and the unworthy, 
coupled with sharp intelligence. These psychical traits, he 
mentions, are to be found, more or less pronounced, in connec- 
tion both with the intermittent and the remittent corporeal 
symptoms of those suffering with hysteria; and these symp- 
toms often, either in their own course, or in concurrence with 
other causes, mature into an insanity whose actions are pro- 
gressively more and more wild, and in which self-control is 
ultimately lost. The erotic element, according to Liman, ex- 
hibits itself in this disease with much less frequency than is 
generally supposed. On the other hand, Morel calls attention 
to the well-substantiated fact that patients of these classes some- 
times tenaciously cherish delusions and hallucinations that 
they have been the subject of sexual wrongs from others (e. g. 
Pigments heretical, 
Scruples fantastical, 
Doubts diabolical. 
Abaddon vexeth me, 
Mahro perplexes me, 
Lucifer teareth me, 
Jesu! Maria! liberate nos ab his dires tentationibus inimici.”—Miscellaneous 
Poems, p. 6. Ed. Moxon : 1841. Mind and Matter, by J. Gr. Millingen, M.D., M.A., 
pp. 76, 77, 78. 
(c) Sckiirmayer, Gericlit. Med. § 543; Kralimer, Handbuch der Gericht. 
Med. Halle, C. A. Sckwetsckke, 1851, § 109. 
(<Z) Liman’s Casper, 1871, p. 443. 
498 BOOK I.] 
HYSTERIA. 
[§ 520 
rapes, abortions, impregnation); and detail the circumstances 
of such wrongs with a consistency and exactness which, in 
those unacquainted with the patient’s condition, secure belief. 
§ 519. With this may be mentioned cases of intense domestic 
irritability, resulting in quarrels at home, and sometimes, as 
Liman mentions, in disputes with and rapid changes of medical 
attendants. The excitement is more intense at the catamenial 
period, and subsides during the intervals. So, also, with regard 
to admissions into and dismissal from asylums, which may 
rapidly alternate. These patients are the peculiar annoyances, 
so speaks this experienced observer, of such institutions. 
Nothing is acceptable to them but the past and the impos- 
sible ; the present and the attainable are the causes of petulant 
disgust. Yet they are peculiarly subject to discipline. If this 
discipline can be firmly maintained, they may be controlled, if 
not cured. 
§ 520. The foro-psychical question in such cases is, are the 
sense of right, and the power to do what is right, destroyed ? 
No doubt is there that in hysteria there sometimes exist such 
psychical illusions as make it necessary to answer this question 
in the affirmative. Patients afflicted with this disease, we are 
told by the experienced and accurate observers who have been 
just cited, sometimes believe, not merely that they have lost 
hand, eye, or ear, but that they are poisoned, or subjected to 
great indignities, which, if the delusion be sincere, they would 
naturally endeavor to resent. Yet the difficulty here arises 
from the tendency, sometimes epidemic, sometimes sporadic, 
in this class of patients to simulate. Any symptom which 
would increase personal importance, or draw attention, or 
excite sympathy, if not felt, will be feigned. No one who 
attends such patients but will be struck, indeed, with the 
fecundity with which new symptoms will be created when old 
ones have lost their effect. Hence it is that in hysteria there 
should be close scrutiny applied to all cases dependent on the 
sincerity of such delusions. No doubt, wherever it appears 
that a delusion is sincere, the patient is not responsible for an 
act committed under its stress. But in view of the fact that 
hysteria is fomented by indulgence—in view of the danger to 
the community which would result from the emancipation 
499 § 522] 
MENTAL UNSOUNDNESS. 
[book i. 
of such patients from penal control—in view of the injury to 
which they would themselves he subjected if they were as a 
class to be removed from the sphere of liberty tempered by law 
to that of confinement in lunatic asylums, under whose re- 
straints it would he necessary to place persons so emancipated— 
hysteria itself cannot he juridically regarded as suspending 
moral agency unless mental unsoundness as an independent 
state be substantively proved. 
§ 521. Attacks of hysteria, although in appearance bearing 
considerable analogy to those of epilepsy, rarely produce a state 
of complete insensibility, and, although they may last longer, 
they never leave behind them final bewilderment of mind. 
However frequently they may occur, they hardly ever produce 
mania or dementia, and therefore they rarely exclude re- 
sponsibility.^) 
§ 522. Hysteria is described by Hr. Maudsley, in his lectures 
(London, 1870), as sometimes exhibiting itself in acute mani- 
acal excitement, with great restlessness, rapid and disconnected 
and yet not entirely incoherent conversation, sometimes tend- 
ing to the obscene, and perversity of conduct more or less 
incoherent and seemingly wilful. “With the perverted sen- 
sations and disordered movements there is always some degree 
of moral perversion. This increases until it swallows up the 
other symptoms; the patient loses more and more of her 
energy and self-control, becoming capriciously fanciful about 
her health, imagining or feigning strange diseases, and keeping 
up the delusion or the imposture with a pertinacity that might 
seem incredible, getting more and more impatient of the advice 
and interference of others, and indifferent to the interests and 
duties of her position. Outbursts of temper become almost 
outbursts of mania, particularly at the menstrual periods. An 
erotic tinge may be observable in her manner of behavior; and 
occasionally there are quasi ecstatic and cataleptic states. It 
is an easily curable form of derangement if the patient be 
removed in time from the anxious but hurtful sympathies and 
attentions of her family, and placed under good moral control; 
but, if it be allowed to go unchecked, it will end in dementia, 
500 
(e) Briand, Med. Leg., p. 569. BOOK I.] 
MELANCHOLIA. 
[§ 523 
and it is especially apt to do so when there is a marked 
hereditary disposition.’^/) 
Hysteria, as an element in what is called religious insanity, 
is hereafter discussed^/1) 
{d}) Melancholia.^) 
§ 523. Melancholia may be defined as settled and continuous 
depression. In its higher degrees, the various gloomy and 
morbid feelings are accompanied by distinct imaginings, which 
take their character from the sort of agitation in which the 
disease commenced, the general opinions and character of the 
individual, the pursuits which last occupied him, and the 
trials to which he may have been subject.(A) For all these 
feelings the patient seeks explanations, and finds them either 
in himself (:melancholia concentrica), or in surrounding things 
and circumstances (:melancholia peripherica). In the former case 
he takes himself severely to task for small or inconsiderable 
errors, or declares, with an air of sincere conviction, that he 
has committed great crimes, as murder, etc., and has incurred, 
by his inexpiable fault, the displeasure of God and of the 
world, and eternal damnation. In melancholia religiosa such 
sufferers ask to be tried and punished ; they complain of the 
loss of what is most dear to them, apprehend poverty for 
themselves and their families in the future, or even imagine 
themselves possessed by demons. In melancholia dcemonica, 
they accuse other persons of malevolence and persecution, to 
which they ascribe their ailments. It is characteristic of this 
phase of disease, that the patient never sees surrounding things 
(/) Body and Mind, London, 1870, p. 79. (fl) Infra, § 676. 
(,g) Siebold, Lelirbucli der Gerickt. Med., Berlin, 1847, §208. Dr. Ckeyne, 
ratker jocularly than otherwise, applied the term, “ Tke English Malady,” 
to tliat species of melanckoly which is most affected by the weather and by 
other depressing circumstances. This term has been seriously adopted by 
Siebold, Gerickt. Med. § 212. Melancholia Anglica, sive Autocliira. Fr. B. 
Osiander, in his interesting volume on Suicide, discusses tke same topic. 
Hannov. 1813, 8, § 207. 
(h) Scliiirmayer, Gericht. Med. § 544 ; compare Ellinger, p. 108 ; Lemons 
Cliniques sur P Alienation Mentale ; Falret, Le<jon 7th, p. 185. Paris, 1854. 
Etudes Medico-Psychologiques sur 1'Alienation Mentale. L. F. E. Benaudin, 
chap. iv. p. 178. Paris, 1854. 
501 § 524] 
MENTAL UNSOUNDNESS. 
[book i. 
as they are, but always in a light corresponding to his gloomy 
frame of mind; frequently, also, this false coloring turns into 
a real illusion of the senses, particularly in the peripheric 
form, which is the reason that it so frequently ends in lunacy. 
The external conduct of the patients, the manner in which 
they execute the dictates of their wills, is very various. In 
melancholia attonita they sit motionless and speechless ; in other 
cases, they can hardly find words enough to depict their dis- 
tress ; sometimes they are perpetually in motion—melancholia 
activa et errabunda. In peripheric melancholy they scold and 
swear about their grievances, become noisy and excited, and 
resort to violent means of resistance or revenge. In this 
manner, melancholy often becomes the occasion of murderous 
assaults, and sometimes murders of the most cruel kind, as 
well as of suicide.(i) 
§ 524. Melancholia, or “Alienation partielle depressive,” as 
it has been called by Falret, has, as its name indicates, for its 
principal characteristic, a depression, slowness and prostration 
of all the faculties united with general anxiety. This funda- 
mental disposition of the sensibility and intelligence produces, 
in the greater number of those thus affected, a crowd of ana- 
logous consequences. Everything is viewed by them in a dis- 
torted light; all their relations with the external world are 
changed; they look upon everything with repulsion and 
antipathy: they bear with difficulty the kindest remarks of 
their relations and friends, and consolation itself irritates 
them. In entire contradiction to nature, the patient cannot 
retire within himself. He finds nothing within but anxiety, 
doubt, and mistrust, both of himself and others. Everything 
seems changed around him. lie is often afflicted, and some- 
times irritated by it, and thinks the alteration due to those 
that surround him, rather than to any personal change. 
Thence come irritation, anger, and violence, against himself 
and others. He then abandons the world that injures him, 
and sinks into complete inactivity. 
Frequently it is not only against the world in general, but 
against his best friends, that the patient directs his suspicions, 
(i) The above summary is taken from Schurmayer, Gericlit. Med. § 544. 
502 BOOK I.] 
MELANCHOLIA. 
[§ 524 
his mistrusts, and his hatred. To this general state of de- 
pression, anxiety and gloominess succeed. After this comes 
both a physical and moral prostration, in which there is more 
or less complete suspension of sensibility and intelligence. 
Whilst the sensibility is thus oppressed and affected, the 
will is equally enfeebled, inactive, and powerless. Indecision 
and slowness of resolution are frequently to be met with, to 
such a degree as to produce a total want of volition and inca- 
pacity of movement. We should note, however, under this 
head, two principal modes of reaction. In certain cases, the 
reaction is of no effect; the patient resembles a statue, being 
insensible and without will. At other times, on the contrary, 
he is shocked by everything that surrounds him, and reacts 
strongly, it may be directly, through the violence of a desire 
which betrays itself in action, or it may be indirectly, by an 
incessant instability. A constant desire to complain follows, 
with groans and laments, which, when it arrives at its maxi- 
mum, constitutes a grade of exaltation, intermediate between 
melancholy and mania. Intelligence is enfeebled, and de- 
pressed like the sensibility and the will; the capacity for the 
generation of ideas is enfeebled, their course is diminished, 
their circle narrowed. The patient talks only of himself and 
his misfortune; he utters monotonous complaints, and sighs, 
or pronounces broken words. Sometimes, the need of express- 
ing ideas not being felt, he speaks only with difficulty, and 
sometimes even, instead of answering, he contents himself 
with a rude and silent movement. Sometimes, also, he speaks 
a great deal and to every body, but it is only to speak of 
himself, to give utterance to the same complaints and the 
same lamentations: he is morally what the hypochondriac is 
physically. 
The physiognomy is concentrated and anxious, expressing 
dulness and stupidity, followed by habitual and sometimes 
entire silence, and slowness of movement carried sometimes 
to immobility. These external signs correspond with the in- 
ternal condition we have just described, and form an exact 
picture of this kind of mental disease. 
Among the melancholics, in fact, some, feeling a general 
anxiety, think they have done a bad action, have committed 
503 § 525] 
MENTAL UNSOUNDNESS. 
[book i. 
a crime, suppose themselves reserved for severe punishments, 
both in this world and the other, and, overwhelmed with 
scruples, they criminate themselves for the most innocent 
actions of their lives, or imagine themselves possessed by the 
devil and abandoned of God. Others, in consequence of the 
sentiment of mistrust which controls them, imagine themselves 
to be surrounded by spies or invisible enemies, and, according 
to their previous ideas, their education, or the age in which 
they live, think themselves under the power of sorcery, magic, 
magnetism, the police, etc. Others, entirely wrapped in their 
sadness, think themselves ruined, accused, dishonored, or even 
betrayed by their relations and friends. In a word, the deliri- 
ous ideas which become the centre of the greater part of the 
preoccupations of the intelligence and of the feelings, and 
which appear, at first sight, to constitute all the delirium, are 
in reality only the relief to the general condition which gives 
birth to them. In spite of their infinite variety, they all par- 
take of the general character of the disease. 
There is not, then, in melancholy, as has often been asserted, 
a concentration of the attention, or even of all the moral and 
intellectual powers, upon one sad idea, but a general state of 
sadness and depression which shapes itself in one predomi- 
nant idea, and manifests itself by a crowd of other morbid 
phenomena.^') 
§ 525. Melancholia is apt to arise in men from excessive 
sexual indulgence or of self-abuse; in women from derange- 
ment of the menstrual functions. This is peculiarly the case 
with that revolution of the system which accompanies a cessa- 
tion of menstruation. There are in this state “ all sorts of 
anomalous sensations of bodily distress, attesting the disturb- 
ance of circulation and of nerve functions ; and it is now that 
an insane jealousy and a propensity to stimulants are apt to 
appear, especially when there have been no children. When 
positive insanity breaks out, it usually has the form of profound 
melancholia, with vague delusions of an extreme character, as 
that the world is in flames, that it is turned upside down, that 
O') See Leqons Clinique sur V Alienation Mentale, de M. Falret. Leqon 
9. Paris, 1854. 
504 BOOK I.] 
MELANCHOLIA. 
[§ 527 
everything is changed, or that some very dreadful hut unde- 
fined calamity has happened or is about to happen. The coun- 
tenance has the expression of a vague terror and apprehension. 
In some cases, short and transient paroxysms of excitement 
break the melancholy gloom. These usually occur at the 
menstrual periods, and may continue to do so for some time 
after the function has ceased.”(&) 
§ 526. In some phases of this disease, the motives are not 
present to the consciousness, and the act is committed in a 
state of mental confusion, preceded sometimes by the almost 
imperceptible symptoms of silent depression, sometimes by the 
traces broad and deep of havoc in the affective faculties, 
and accompanied often by a sudden loss of self-control, visible 
paroxysms of terror, and a fancied pursuit by fiends.(?) The 
transition from melancholy to mania is open to the simple 
explanation, that melancholia is the first stage of psychical 
disease in general, and contains within itself the germs of all 
other phases.(m) 
§ 527. In other cases there is also an absence of conscious 
motives, but in their place an uncontrollable restlessness, an 
indistinct but overawing feeling of dread, and an incessant 
morbid approach of those abnormal moral propensities which 
will be considered under the next head. Ellinger correctly 
observes,(n) that “ impulses of this kind often excite the most 
desperate struggles in the mind; evoke the most various ex- 
ternal means to overcome them; place the murderous instru- 
ment into the hands of the individual, from which reason wrests 
it again; drive him again into solitude and far from the sub- 
ject of the mad desire, and induce him to give warning to the 
threatened victim; to plan and to attempt suicide ; and, when 
at last the fatal deed is nevertheless accomplished, there is a 
calmness and a clearness in the manner in which he anticipates 
the impending punishment, which to an unpractised observer 
(.k) Body and Mind, by Dr. Maudsley, London, 1870. See also Dr. Luke’s 
Insanity of Pregnancy, Puerperal Insanity, and Insanity of Lactation ; and 
Dr. Storer’s Insanity in Women. 
(Z) Ellinger, p. 112. (m) Sckurmayer, Gericbt. Med. § 545. 
(n) Ellinger, p. 114. 
505 § 529] 
MENTAL UNSOUNDNESS. 
[book i. 
must exclude every idea of an underlying mental derangement. 
Such subjects either betray the ordinary symptoms of depres- 
sion, or only those incident to the specific propensity, which 
throws the consciousness into a state of distraction, and fills 
the mind with fear and dread. In either case, the impulse, 
whether preceded or not by a brief relaxation, comes suddenly, 
in which case it will be found in connection with disturbances 
of the bodily functions, among which may be enumerated 
cessation of the natural period or of other natural or ordinary 
evacuations, rush of blood to the head, exhaustion by loss of 
blood, protracted nursing, excesses, epilepsy, approach of severe 
attacks of sickness. The immediate occasion of the act maybe 
the view of a naked figure, the sight of an execution, of blood, 
of a murderous instrument or other means of committing 
crimes, or the recital of such an occurrence ; the ultimate cause 
is found, according to Ideler, in the associations of feelings 
and desires according to their contrast, and the struggle and 
contradiction thus arising.” 
§ 528. In still another order of cases, as we are told by Schiir- 
mayer, the consciousness is not only in full possession of the 
motives, but the act is conceived on the ground of a chain of 
reasoning and executed with a degree of arrangement and cir- 
cumspection apparently inseparable from a clear state of the 
understanding. Here, as will be seen more fully hereafter, the 
motives are sometimes hallucinations, particularly of the ear 
(voices heard), which give commands to the madman, some- 
times a wish to die without the courage to commit suicide 
directly, but with the design of incurring capital punishment 
by the murder of others (persons the subject of an old grudge, 
or such as are entirely innocent, as children); sometimes the 
notion that the destruction of the world is at hand, or that a 
terrible misfortune impends, against which it was necessary to 
protect the object of particular affection, which is best effected 
by death. In the latter case, as will presently be more fully 
seen, suicide, or self-inculpation, is common, and sometimes a 
vindictive feeling against the supposed authors of the person’s 
suffering, which the mind often debates with itself for a length 
of time, until all doubt is removed by some new hallucination. 
§ 529. This brings us to the cases, to which reference has 
506 BOOK I.] 
MELANCHOLIA. 
[§ 530 
been elsewhere made^n1) of suicide, or of the homicide of 
children, under the influence of deep mental depression. The 
patient’s condition becomes one of hopeless melancholy. The 
most terrible calamities he believes to be gathering over him- 
self and those whom he loves. Life, if it continues, will be to 
them misery unutterable, incomparable. Death, under such 
circumstances, is a blessing. To invite it he considers a duty, 
and to kill his children, and then himself, the highest office of 
self-sacrificing love. This state has been well termed Prtecor- 
dial Anguish. It has been so abundantly and unequivocally 
illustrated that as to its existence there can be no doubt. In 
addition to the cases already given, may be mentioned that 
of the father, referred to by Casper, who, before killing his 
children under the influence of this feeling, shook hands with 
them and caressed them, as if on the eve of a solemn and 
tender sacrifice which was to release them from all their cares. 
§ 530. One peculiar phenomenon sometimes connected with 
this state has been noticed by psychologists. Between the reso- 
lution and the performance of the terrible act the mind of the 
patient becomes preternaturally calm. The tumult and terror 
which preceded the purpose have subsided. There may be even 
a sort of ecstasy in the relief from the agitation which had 
attended the prior conflict between affection in its lower and 
what is believed to be affection in its higher stage. This 
peculiarity, indeed, is common to sanity as well as insanity. 
When we have been torn by conflicting motives as to the duty 
of any particular step, and at last have come to a determina- 
tion, even though this determination has been caused by the 
preponderance of a mere straw, then unrest is succeeded by rest, 
and our sole care is that the purpose be duly executed. Such 
periods of lull, and of quiet and calm preparation, have been 
sometimes observed in those who, under the influence of mel- 
ancholy, have been parties to the fearful acts which have just 
been noticed. It has been hence superficially inferred that they 
were at the time sane. But the lull is no proof that there has 
not been a prior unloosening of the stays of sanity. All the 
fastenings of the mental mechanism may have been previously 
(ti1) See §§ 155, 529, 636, 837, 839, 842. 
507 § 532] 
MENTAL UNSOUNDNESS. 
[book i. 
removed. The machine may run for a while longer with ap- 
parent ease, but the crash will eventually come, as in an engine 
whose rivets have been withdrawn. Yet this unsoundness is 
not to be presumed. The mind’s prior perturbations, the 
shocks to which it may have been previously subjected, its 
congenital or hereditary weaknesses—these must be proved. 
But, when these are shown in such a way as to establish mel- 
ancholia as a disease, the calmness which immediately preceded 
the act must not be treated as proof of sane design. From 
insanity this state of lull issued, and to insanity it will 
revert, (o) 
G. Mental unsoundness as affecting the moral sense. 
(a1) General “ moral insanity.” 
§ 531. The doctrine of “ Moral Insanity”—i. e. supposed 
insanity of the moral system coexisting with sanity of the 
mental—has been already examined in its legal relations, 
and has been shown to be incompatible not only with the 
reported decisions of the courts, but with the principles of 
philosophic penal It remains now to demon- 
strate that this doctrine is equally repugnant to sound psy- 
chology. 
§ 532. The coexistence of mental sanity with this alleged 
moral insanity is, as will at once be seen, essential to the 
independent existence of this supposed phase of diseased irre- 
sponsibilty. We must therefore exclude, from the category of 
distinctive “ moral insanity,” all those cases in which the mind 
is insane. To establish this hypothesis, therefore, the following 
points must be proved:— 
First, that the moral and mental functions are so separable 
that one can be insane without involving the other. 
(o) See, as illustrating this intermediate intelligence, two cases mentioned 
by Brierre de Boismont, in the Annales d’Hygiene,, pub. 1863. Dr. Liman 
speaks of “hundreds” of suicides in melancholia, in whom, prior to the 
act, the same calmness was noticed. See, for this point viewed legally, supra, 
§§ 146-162. 
(p) See supra, §§ 163-189. 
508 BOOK I.] 
“MORAL INSANITY:” PSYCHOLOGICALLY. 
[§ 533 
Secondly, that this severance actually exists in the cases 
which are vouched as establishing moral insanity. 
Thirdly, that, even supposing such severance, the peculiar 
condition of morals that thus is assumed confers irresponsibility. 
The third of these points has been already discussed, it being 
peculiarly a proposition of law.(p!) The first and second we will 
now examine. 
(a2) § 533. Are the moral and mental functions so separable that 
the former can be insane without involving the other ? Sir William 
Hamilton, to repeat a citation already made, in defining the 
mind, says: “ If we take the mental to the exclusion of ma- 
terial phenomena, that is, the phenomena manifested through 
the medium of self-consciousness or reflection, they naturally 
divide themselves into three categories or primary genera: 
the phenomena of knowledge or cognition—the phenomena of 
feeling or of pleasure and pain, and the phenomena of co- 
nation or of will and desire.” Mr. Bain, belonging to a very 
different school, arrives, as we have previously seen, substan- 
tially at the same “The only account of mind 
strictly admissible in scientific psychology consists in specifying 
three properties or functions—feeling, will or volition, and thought 
or intellect, through which all our experience, as well objective 
as subjective, is built up. This positive enumeration is what 
must stand for a definition.” He proceeds to say that “ feeling 
includes all our pleasures and pains, and certain modes of ex- 
citement, or of consciousness simply, that are neutral or indif- 
ferent as regards pleasure and pain. The pleasures of warmth, 
food, music; the pains of fatigue, poverty, remorse ; the excite- 
ment of hurry and surprise, the supporting of a light weight, 
the touch of a table, the sound of a dog barking in the distance, are 
feelings. The two leading divisions of the feelings are com- 
monly given as sensations or emotions.” “Will or volition 
comprises all the actions of human beings in so far as impelled or 
guided by feelings. Eating, walking, building, sowing, speaking 
are actions performed with some end in view; and ends are 
comprised in the gaining of pleasure or the avoiding of pain. 
(pl) See supra, §§ 163-189. 
(q) Mental and Moral Science (2d Ed.), London, 1868, p. 2. 
509 § 535] 
mental unsoundness. 
[book i. 
Actions not prompted by feeling are not voluntary. Such are the 
powers of nature—wind, gravity, electricity, etc.; so also the 
organic functions of breathing, circulation, and the movements 
of the intestines.” “ Thought, intellect, intelligence, or cog- 
nition includes the powers known as perception, memory, con- 
ception, abstraction, reason, judgment, and imagination. It 
is analyzed, as will be seen, into three functions, called dis- 
crimination or consciousness of difference, similarity or con- 
sciousness of agreement, and retentiveness or memory. The 
mind can seldom operate exclusively in any one of these three modes. 
A feeling is apt to be accompanied more or less by will and by 
thought. When we are pleased, our will is moved for con- 
tinuance or increase of the pleasure (will); we at the same 
time discriminate and identify the pleasure, and have it im- 
pressed on the memory (thought).” 
§ 534. Let us apply this analysis to some of the cases which 
are adduced as illustrations of moral insanity by the writers 
on this specialty. A man, for instance, is assaulted by another, 
or conceives himself so to be, so as to be in danger of losing 
either life, or that which is more precious to him than life. 
Feeling is the first function of the mind which is here ad- 
dressed ; but this necessarily involves thought. “ Is the assault 
intentional?” “Was it designed?” “Can I infer, judging 
from former assaults, or from what I have observed or heard, 
that it is aimed at life ?” “ Can it be repelled in no other way 
than by killing the assailant?” Pursuing inquiries such as 
these, feeling, guided by thought, directs the will to the 
particular object. Without thought, feeling would strike 
blindly into mere space. Even in the lowest point of view, 
discrimination is needed to distinguish the victim from others, 
and judgment to determine that killing him is a proper act of 
self-defence. Thought, therefore, is necessarily involved in the 
act of killing, and the killing takes place because the assailant 
thinks it best. To constitute a valid plea of derangement in 
such a case it is necessary to show that the perceptive and 
reasoning powers were deranged. Otherwise, the case would 
not differ from that of homicide in a sudden fit of rage. 
§ 535. Or take the case of “ kleptomania.” The feeling 
which lies at its base is longing for some particular thing. 
510 BOOK I.] 
“MORAL INSANITY-.” PSYCHOLOGICALLY. 
[§ 539 
But to shape as well as to effectuate this longing, thought 
must be invoked. Thought is needed to identify the object 
with that which previously gave gratification; to distinguish 
it from other objects; to secrete it; to carry it successfully 
away. In true kleptomania, so far from the derangement being 
distinctively in the feeling, such derangement is to be pecu- 
liarly traced to thought or intellect. It is no mark of derange- 
ment on entering a jewelry store to desire a brilliant that may 
lie on the counter. But to think either that it is right to take 
it, or that it can be taken without disgrace, assumes an abnor- 
mal and insane condition of intellect. 
§ 537. The same reasoning applies to all cases of alleged 
monomania. A child sets fire to a house (pyromania). Here 
the child selects the particular house by thought; applies the 
match with thought; is determined to the act by a mental process 
on whose sanity or insanity the question of responsibility 
depends. Or sexual propensity is yielded to without restraint 
(erotomania); and here, also, thought, in its lowest phases of 
memory, distinction, and identification, is necessary to procure 
gratification, while in its higher phase of reason and sense of 
right, it must exist in a normal state to create responsibility. 
The insanity, in other words, cannot be psychologically shown, 
unless it affects thought. 
§ 538. The difficulty is that “moral insanity,” in the popular 
acceptation of the term, includes two distinct diseases. The 
first, following the phraseology of Bain and Hamilton, as just 
stated, is that of enfeebled or paralyzed thought, approaching 
dementia. Here, feeling, held in but slight check by the 
reasoning powers, acts on the will, involving thought only 
so far as is necessary to identify and secure the object of 
desire. The other case is that of delirious or deluded thought, 
where unreal objects are set up for feeling to desire. But in 
both cases, the primary seat of the disease is in thought and 
INTELLECT. 
§ 539. How unsatisfactory are the analogies which are in- 
voked to explain this alleged separateness of the moral sense, 
will readily be seen. The reason, the memory, the moral sense, 
it is declared, are each packed away in a series of hermetical 
compartments; and, so far from their mutually commingling, 
511 §539] 
MENTAL UNSOUNDNESS. 
[book I. 
one may be actually insane without the others being in any 
sense affected. Man is thus like an iron steamboat, whose hull 
is divided into a series of water-tight chambers, so arranged 
that if the rivets of one chamber loosen, or its plates decay, 
the injury sustained is to itself alone. But it would be far 
more correct to compare the ego to the steamer’s machinery, 
in which the derangement of one particular part is the de- 
rangement of the whole. Taking reason in its large sense, we 
must all admit that reason and the moral sense are in the 
highest degree interdependent. Thus, if an act is repugnant 
to our moral sense, the closest logical process will fail to con- 
vince us of its propriety. On the other hand, waiving the 
question whether there is such a thing as an innate moral sense, 
there is no doubt that this function is one which, supposing it 
to be actually wanting, or naturally weak, may be built up by 
education.(r) Dr. Arnold, whose cheerful temper and whose 
speculative theology alike remove from him the suspicion of 
pessimism in this relation, and whose experience was wide and 
close, tells us that in the boy nature the moral sense is weak 
and capricious, and that “ conscience” as a power results from 
the instructive influence of time and thought. lie quotes 
with emphatic approbation the well-known lines:— 
“ The old man clogs our early years 
And simple childhood comes the last.”(r') 
(r) See particularly supra, §§ 115, 188-403. 
(r1) On this point we have the following corroborating remarks of Dr. 
McFarland : “ Another explanation of the phenomena termed moral insanity 
should not be lost sight of. We are apt to forget the vast conservative power 
of reason in saving man from the depraved appetites and instincts common to 
him with the brute creation. Swift has well shown the humiliation of our 
species when man’s reason was given to the brute and himself left without it. 
We all remember, in the entertaining narrative of Captain Gulliver, what a 
sorry brute man becomes when thus transformed. A human being, born 
without reason, or possessing it only to a low degree, becomes an instance 
such as we often see, illustrating this point. The instincts of the idiot are low, 
and are prevented from becoming depraved only by the amount of reason 
which he has. The small degree of reason that he possesses may educate the 
faculties of fear, of censure and punishment, and love of approbation, and 
may cause him to imitate his superiors by a propriety of conduct that may 
set him above criminal acts. The same power exerted over the moral pro • 
pensities by the processes of pure reasoning is also shown in the cases of 
512 BOOK I.] 
“moral insanity:” psychologically. 
[§ 539 
Few acts are so cruel, few so immoral, lie tells us, as to shock 
the moral sense of boys steeped in the atmosphere of a public 
school. He applies to morals, though not in the same words, 
Fichte’s aphorism as to faith: man’s attitude in infancy is yes ; 
in youth, no; in maturity,yes. The moral sense in infancy is 
obedience; in youth, chaos; in maturity, obedience. As we 
grow older and wiser and more thoughtful, a thousand things, 
at which our moral sense in youth would not pause, become to 
us abhorrent. And, if moral sense, in its higher relations, be 
not thus imparted, a consciousness that there is a law imposed 
on us which will punish us if we do wrong, acts as a substitute 
which rises in value precisely as the law is known to be exe- 
cuted evenly and surely. We may take, as illustrating this, 
those very criminals who are declared to be “ destitute” of 
moral sense; men who present every test of what is called 
moral insanity; men who show no shame or remorse for 
wrongs done by them, and with whom the recollection of their 
crimes is as evanescent as their recollection of their daily meals. 
Yet even such men are arrested, when concocting crime, by the 
fear of punishment, if that fear is made sufficiently reasonable 
to them. They will, indeed, seek to gratify their passions, but 
they will do so in channels which punishment does not block 
children. Childhood, notwithstanding the praises bestowed on it as the un- 
sullied spring-time of existence, does not compare with mature age in the 
rightfulness of its acts. The burglary and murder of birds-nesting peculiarly 
gratify the juvenile heart, and how often must the ghost of the family cat, 
done to death by truant hands, haunt the little murderer’s pillow. Whoever 
has looked, too, upon a quarrel in petticoats, waged for a bit of cake, sees a 
ferocity as great almost as the death-struggle of mortal foes. Yet what but 
the power of pure reason, working through years, changes these robbers, 
murderers, falsifiers, and belligerents into discriminating judges and revered 
dispensers of the gospel of mercy and peace ? And how easily and naturally 
wfill an inclination to those same acts return when that essence which has 
rescued from them is withdrawn. 
“ Hence the position taken, that moral insanity, if by that term is meant a 
disease of the effective faculties, in which the intellect has no share, has no 
proved existence ; and that what has received that appellation is nothing more 
than either the result of a latent, undetected delusion, whose modus operandi 
we are unable to demonstrate, or the passive effect of a weakened influence 
of the reasoning powers over man’s base instincts.”—Am. Journ. of Ins.. 
July, 1863. 
vol. i.—33 
513 § 539] 
“moral insanity;” psychologically: 
[book I. 
up. They are like blockade runners who carefully scruti- 
nize the coast—who avoid the roads on which the blockading 
squadron stands guard—who lie outside until they discover 
some unguarded passage; and who then, under cover of night, 
with muffled wheels, and stealthy motion, slink in through 
the gap. If the venture cannot be made with good hope of 
success, then the adventurer creeps sulkily back. If it is known 
that the port is thoroughly guarded, then the attempt is not 
even made. All this shows reason, and reason sometimes of a 
high order, operating in such a way as to create obedience to 
law. Even the outlaw avoids the act which he knows the law 
will certainly detect and punish. Supposing, then, the com- 
partment containing the moral sense to be actually empty— 
supposing, in other words, there be a man destitute of moral 
sense—then reason, saying, “ if you do this you will be pun- 
ished,” comes in and fills the compartment with a principle, 
which, though inferior to disinterested virtue, yet is sufficient 
to preserve peace in the community, and to keep its most des- 
perate classes in check.(.s) These, it is true, may be said to be 
(s) Garroters are as a class tlie most desperate and brutish of English 
criminals ; and as long as the worst which the chances of conviction offered 
was transportation, or imprisonment under the present humane mitigations of 
prison life, the passion for garroting was irresistible. It is otherwise, however, 
since flogging has been revived as a punishment for violent robberies. The 
following is from a late (1872) English paper : “ Two years ago the House of 
Commons introduced and passed a measure providing for corporeal punish- 
ment by the common hangman in cases of garroting and robberies, with vio- 
lence, from the person. An account of the prisoners flogged has just been 
issued. Only the initials of the convicts are given, with the nature, reasons, 
and amount of the punishment, the persons by whom it was ordered, and 
those by whom it was witnessed. In the seven years covered by the return, 
5614 floggings were administered in England and Wales. The great instru- 
ment is still the birch, and boys are its chief subjects. Most of the boys thus 
birched were over ten years of age ; the majority seem to be between eleven 
and fourteen. There are, however, a considerable number at eight and nine ; 
about a couple of dozen at seven years of age, and one small incorrigible who 
stands in the catalogue as only four—which we are inclined to hope is a mis- 
print of fourteen. He is down as having been sentenced at the Marylebone 
police court in April last, and as having received ten stripes with the birch. The 
more formidable instrument of punishment is, of course, only used for older 
criminals. The ‘ cat’ appears to be used in about one case in fifty. In 178 
cases it had been administered under the powers of the act of 1864. It is a 
514 BOOK I.] 
AUTHORITIES MAINTAINING. 
[§ 541 
extreme cases. It may well be argued that there is no man 
entirely destitute of moral sense; that there is always some 
flickering of conscience, and that there is always a moral 
capacity which education develops or perverts. But this 
makes the case the stronger. Education is reason acting on 
certain supplied data; and it is the duty of government to 
make these data plain and right—to declare that crime will be 
followed by punishment—so that the right conclusions maybe 
drawn. On either view we find reason either modifying the 
moral sense, or creating something in its place. So far, there- 
fore, from reason and moral sense being separate and inde- 
pendent functions, they are so intimately allied that the one 
cannot be deranged without disturbing the action of the other. 
There can be no insanity of the moral sense, which does not 
imply insanity of reason. There can be no insanity of reason 
which does not produce insanity of the moral sense.(i) 
(lr) As to whether such separate insanity exists. 
§ 541. Tlie second necessary factor to the reception of the 
doctrine is, as above stated, that this alleged severance of the 
moral and mental factors should appear to be not merely possi- 
ble but actual, i. e. that it should be proved by recorded cases of 
persons who are at the same time moralty insane and mentally 
sane. If, as has just been seen, there can be no moral without 
mental insanity, it follows that in all cases where moral insanity 
exists, there must be mental disease, however occult. That 
such is the case will be hereafter shown, when the various 
forms in which alleged moral insanity exhibits itself will be 
specifically examined. 
As introductory to this inquiry, however, come properly 
the opinions of experts. Does the weight of authority among 
experts substantiate the existence of this supposed distinctive dis- 
ease ? 
noteworthy fact that since garroters have been sentenced to floggings the 
offence has almost disappeared from the criminal records of England.” 
(t) See on this point Mr. Bain’s interesting argument, supra, § 188. 
515 § 542] 
“moral insanity;” psychologically: 
[book i. 
(a3) Authorities in the affirmative. 
For the idea of “moral insanity” we must go back to 
Ellinger, who speaks of it, though only speculatively, under 
the name of melancholia sine delirio sive perturbatio mentis, 
mania sine delirio. Pinel (1745-1826) made at one time the 
general statement “that there are madmen in whom there is 
no perceptible alteration of the intellectual process, of the per- 
ceptions, judging faculty, imagination, or memory, and yet a 
perversion of the manifestations of the will, in a blind im- 
pulse to the commission of violence, or even of bloodthirsty 
rage, without any assignable dominant idea, any delusion of 
the imagination, which could cause such a propensity.” Pinel 
is no doubt entitled to the highest respect, both for his skill 
and his humanity. Under his administration, the Bicetre and 
the SalpetrRre were in time rescued from barbarous neglect, 
and placed in a condition of comparative health, moral as well 
as physical. A rightful reaction from the cruelty of the old 
French conception of insanity, acting, it is true, in his case 
on a mind not free from romanticism, naturally led him to 
accept Rousseau’s- idea that crime is itself an insanity. Yet, 
when we scrutinize his writings, we will be surprised at find- 
ing how cautious his speculations really were. 3Ianie sans 
delire he no doubt spoke of as a specific form of insanity; but 
the illustrations he used to establish this are all cases of me- 
lancholia or of suppressed mania, whose distinctive feature 
was not the absence of mental disturbance, but simply the 
absence of delirium and incoherence. He positively tells us 
that he has rarely seen cases of this class in which the mind 
was not “changed or perverted.” 
§ 542. Esquirol (1772-1840) was Pinel’s assistant at the Salpe- 
triere, and imbibed, though under more strictly scientific condi- 
tions, his master’s humanitarian views. But he concedes that 
psychologically there can be neither “ moral insanity,” nor 
“ reasoning mania,” nor insanity of any kind, in which the 
understanding is not “ more or less affected.” In fact his 
argument on this point is precisely that used in the following 
pages to show the psychological absurdity of an exclusively 
moral insanity. “ Were it not thus” (that the understanding 
516 BOOK I.] 
AUTHORITIES MAINTAINING. 
[§ 544 
is affected), “ the insane would 'permit themselves to he controlled by 
their understanding, and would discover that their views are false., 
and their actions unusual and strange. Their understanding is 
more or less at fault; it has lost its influence over the will, and, is 
no longer in harmony with the other facidties. Among the insane 
who, without motive, are drawn away instinctively to the com- 
mission of reprehensible acts, which would be criminal if they en- 
joyed the use of their reason, intellectual action is suspended.” (f) 
§ 543. To Gall (1758-1828) we are indebted for most of the 
well-known and well-used anecdotes which form the chief proof 
cases of moral insanity. Like Pinel, of whom he was the 
contemporary, he was tinged in his philosophy by the senti- 
mental humanitarianism of Rousseau; but, unlike Pinel, he 
was as devoid of any practical experience as an attendant on 
the insane, as he was deficient in scientific accuracy as a psy- 
chologist. Of the truth of his phrenological surmises it is 
unnecessary here to speak; it is sufficient to say that he based 
these surmises on statistics the most careless. Reports of ex- 
perts, testimony which had been rendered on judicial examina- 
tions, judgments of courts, seem to possess no interest to him ; 
and most of the proof-cases already alluded to, and which 
hereafter will frequently recur to our attention, are cited by him 
from “ personal observation,” or from “ German newspapers,” 
without any references which will enable the citations to be 
verified. IsTor does he pretend to give a full report even of 
those cases which without a full report would be worthless. 
Thus he tells us of persons who had “ irresistible impulses” to 
commit certain crimes; but he gives us no evidence from which 
we can infer that the case, having been duly explored, was 
not one where general insanity could be proved. It was this 
looseness which, notwithstanding the ingenuity of the Be- 
cherches sur le Syst&me Nerveaux, etc., presented by him to the 
Academy, left him with but a single vote when his name was 
proposed for membership to that body. 
§ 544. To Dr. Prichard (1786-1848), however, the term “ moral 
(tl) For the translation and citations of this and the prior quotation I am 
indebted to an article by Dr. Chipley, in Am. Journ. of Ins. for 1866 (vol. 
23), p. 30. 
517 § 545] 
“moral insanity;” psychologically: 
[book i. 
insanity” owes its origin, and the idea, if it be one, its con- 
ception. His scientific researches were mainly in ethnology. 
Psychology received from him little notice, nor does it ap- 
pear that until 1841 he paid much attention to the condition 
of the insane. His practice, down to that period, was in 
Bristol, England, but his reputation was rather literary than 
medical; and no one can glance at the medical controversies of 
the day without seeing that his rank in his own profession 
was not high. Hence it was that the term “ moral insanity,” 
when introduced by him, was often treated with ridicule, and 
was invested with an extreme meaning which he never in- 
tended to convey. For he is far from saying that the “ morals” 
could be exclusively and irresponsibly insane. He tells us that 
in “ moral insanity” there is “ in many cases” “ hereditary ten- 
dency to madness;” in others, prior “ madness;” in others, “ a 
slight attack of epilepsy, or some fever or inflammatory dis- 
order.” 
§ 545. Prominent among more recent exponents of this view 
is Hr. Ray. “ In fact, it has always been observed,” says this 
eminent and experienced physician, “that insanity as often 
affects the moral as it does the intellectual perceptions. In 
many cases there is evinced some moral obliquity quite un- 
natural to the individual, a loss of his ordinary interests in 
the relations of father, son, husband, or brother, long before a 
single word escapes from his lips ‘sounding to folly.’ Through 
the course of the disease the moral and intellectual impairments 
proceed pari passu, while the return of the affections to their 
natural channels is one of the strongest indications of approach- 
ing recovery. Such being the fact, it ought not to be a matter 
of surprise that in some cases the aberration should be confined 
to the moral impairment, the intellectual, if there be any, 
being too slight to be easily discerned.” 
“The reality and importance of this distinction,” says the 
same author subsequently, “ which thus establishes two classes 
of mania, is now generally acknowledged by practical observers, 
among whom it is sufficient to mention Esquirol, Georget, Gall, 
Marc, Rush, Reil, Iloffbauer, Andrew Combe, Conolly, and 
Prichard, though some of them are inclined to doubt whether 
the integrity of the understanding is as fully preserved in 
518 BOOK I.] 
AUTHORITIES MAINTAINING. 
.[§ 546 
moral mania as Pinel affirmed. Still, its apparent soundness, 
and the difficulty, at least, of establishing the existence of any 
intellectual derangement, while the moral powers are unequi- 
vocally and deeply deranged, render it no less important in its 
legal relation than if the understanding were unequivocally 
affected. It is defined by Prichard, who has strongly insisted 
on the necessity of assigning it a more distinct and conspicuous 
place than it has hitherto received, as ‘ consisting in a morbid 
perversion of the natural feelings, affections, inclinations, tem- 
per, habits, and moral dispositions, without any notable lesion 
of the intellect or knowing and reasoning faculties, and par- 
ticularly without any maniacal hallucination.’ It will be 
convenient, even if not scientifically precise, to consider it 
under two divisions, according as it is general or partial.”(w) 
§ 546. Bearing on the question on its physiological side, we 
have the following observations of Dr. Carpenter:— 
“ The more active forms of delirium pass by almost imper- 
ceptible gradations into the state of mania, which is usually 
characterized by the combination of complete derangement 
of the intellectual powers with passionate excitement upon 
every point which in the least degree afiects the feelings. 
There is, however, a considerable amount of variety in the 
phases of mania, depending upon differences in the relative 
degree of intellectual and of emotional disturbance. For there 
may be such a derangement of the former as gives rise to 
complete incoherence in the succession of ideas, so that the 
reasoning power is altogether suspended; and yet there may 
be at the same time an entire absence of emotional excitement, 
so that the condition of the mind is closely allied to that of 
dreaming or of rambling delirium. On the other hand, the 
intellectual powers may be themselves but little disturbed, the 
trains of thought being coherent, and the reasoning processes 
correctly performed; but there may be such a state of general 
emotional excitability, that nothing is felt as it should be, and 
the most violent passion may be aroused and sustained by the 
most trivial incidents, or by the wrong ideas which are formed 
(u) Ray on Insanity, p. 16G. See a full vindication by Dr. Ray of bis 
views in 18 Am. Journ. Ins. 112. 
519 § 546] 
“MORAL INSANITY;” PSYCHOLOGICALLY: 
[BOOK I. 
by the mind as a consequence of their misinterpretation. 
Between these two opposite states, and that in which the 
disturbance affects at the same time the intellectual and emo- 
tional parts of the mental nature, there is a complete succession 
of transitional links; but under all the phases of this condition 
(these often passing, into each other in the same individual) 
there is one constant element, namely, the deficiency of voli- 
tional control over the succession of thought. This deficiency 
appears to be a primary element in those forms which essentially 
consist in intellectual disturbance; whilst in those of which 
emotional excitement is the prominent feature it seems rather 
to result from the overpowering mastery that is exercised over 
the will by the states of uncontrollable passion which succeed 
each other with little or no interval. It seems probable, how- 
ever, from the phenomena of intoxication, that the very same 
agency which is the cause of the undue emotional excitability 
also tends to produce an absolute diminution in the power of 
volitional control.” 
“ There may, however, be no primary disorder of the intel- 
lectual faculties, and the insanity may essentially consist in a 
tendency to disorded emotional excitement, which affects the 
course of thought, and consequently of action, without dis- 
turbing the reasoning processes in any other way than by 
supplying wrong materials to them. hTow, the emotional 
disturbance may be either general or special; that is, there 
may be a derangement of feeling upon almost every subject— 
matters previously indifferent becoming invested with strong 
pleasurable or painful interest, things which were previously 
repulsive being greedily sought, and those which were pre- 
viously the most attractive being in like manner repelled ; or, 
on the other hand, there may be a peculiar intensification of 
some one class of feelings or impulses, which thus acquire a 
settled domination over the whole character, and cause every 
idea with which they connect themselves to be presented to 
the mind under an erroneous aspect. The first of these forms, 
now generally termed moral insanity, may, and frequently does, 
exist without any disorder of the intellectual powers, or any 
delusion whatever; it being (as we shall presently see) a result 
of the generality of the affection of the emotional tendencies, 
520 BOOK I.] 
AUTHORITIES MAINTAINING. 
[§ 547 
that no one of them maintains any constant hold upon the 
mind, one excitement being, as it were, driven out by another. 
Such patients are among those whose treatment requires the 
nicest care, but who may be most benefited by judicious in- 
fluences. Nothing else is requisite than that they should 
exercise a moderate amount of self-control; but the best di- 
rected moral treatment cannot enforce this if the patient do 
not himself (or herself) co-operate. Much may be effected, 
however, as in the education of children, by presenting adequate 
motives to self-control; and the more frequently this is exerted, 
the more easy does the exertion become.”(?;) 
§ 547. As inclining to accept the doctrine of mania sine 
delirio, though with great cautiousness of expression, we may 
cite Morel, a recent distinguished French writer on insanity, 
from whom we translate the following:— 
“Instinctive mania (manie raisonnante of Pinel) includes 
homicidal and incendiary monomaniacs, etc. Those thus af- 
fected seldom complain of being tormented with hallucina 
tions of the senses, but are subject to indefinable pains which 
betray themselves externally in headaches, roaring in the ears, 
dazzlings, and indescribable sensations. If we sometimes see 
in them perfect digestive powers or an exaggerated appetite, 
the opposite phenomena of want of appetite, depraved tastes, 
etc., are much more frequent symptoms. They feel an inces- 
sant need of movement, an activity out of all proportion with 
their physical forces, alternating with an insurmountable 
apathy. If, under certain circumstances, the absence of sleep 
astonishes us, we, on the contrary, often observe them in a 
torpid and almost death-like state. Sometimes their sensi- 
bility is so exalted that the whole exterior world becomes for 
them nothing but a source of pain, anguish, and irritability. 
Sometimes the most unhappy sensations and the most painful 
emotions do not seem to affect either their physical or moral 
nature. 
“When these patients are brought into a court of justice, 
they are unanimous in attributing the same motives to their 
actions. They accuse themselves of irresistible impulses; they 
(«) Carpenter’s Physiology, Phil. 1856, §§ 704, 707. 
521 § 547] 
“moral insanity;” psychologically: 
[book i. 
are ignorant why they so acted, and in this respect are very 
different from those suffering from hallucinations or systematic 
madness, who astonish and frighten us hy the inexorable logic 
of their actions, who express only imperfectly shaped regrets, 
who are indifferent as to the condition of their victims, as 
much as to their own interests, and who are not able to say 
but that they will perform the same act again if the oppor- 
tunity should occur. In scrutinizing the former life of such 
patients we must remain convinced that the lesions of their 
intelligence, the disorganization of their instincts and tenden- 
cies must be due to deep organic disturbances. Hereditary 
influences, malformation of the great organ of the intelligence, cer- 
tain diseases which may have changed the general health, idiopathic 
affections, arrests of development; troubles at the period of 
puberty, or in the normal phenomena of gestation, are so many 
involuntary causes. These causes are the more striking and 
palpable as the patients cannot always be excused on account 
of a vicious education. The malady with which they are 
afflicted has sometimes attacked them in the midst of the best 
social conditions, and when a relatively feebler intelligence and 
the manifestation of depraved instincts have early been re- 
marked in them; conditions of system which have not always 
found their corrective in an appropriate hygienic treatment 
and education. And this is why we have called this form of 
mania instinctive mania, because we see in it something so 
essentially connected with the organic conditions, that it is 
impossible for us to consider such patients as other than 
what they really are, viz., as deprived of their free will and 
reason. There do exist voluntary causes which produce iden- 
tical consequences as regards the derangement of the tenden- 
cies. The subversive and selfish passions, debauchery, lewd- 
ness, drunkenness, and solitary habits, are of this class. This 
form of mania will he best shown in the following case, of an 
educated maniacal woman who was irresistibly urged on to 
attempt the lives of her companions and relations:— 
“The previous mode of living of Mari5 C. by no means 
explains the aberration of her sentiments and the disorganiza- 
tion of her feelings. Born of honest parents, who spared 
nothing for her education, she embraced, early in life, the pro- 
522 BOOK I.] 
AUTHORITIES MAINTAINING. 
[§ 547 
fession of teacher in a small village. She quitted this position, 
which was too laborious for her, and entered as domestic into 
a family, where she was treated rather as one of the household 
than as a servant. She remained there eight years, as happy 
as it was possible for one so afflicted to be. 
‘“I do not know,’ she says, ‘ how to explain my mode of 
life. I never amused myself like the other children of the 
village ; I possessed a ridiculous, fantastical, capricious temper, 
and I generally preferred seeing evil done than good. I was 
sometimes extravagantly gay, hut more generally I was sad.’ 
“ Question.—‘Had you any cause for being so?’ Answer.— 
‘ Hone. My parents loved me, if possible, more than my other 
brothers and sisters; hut I really took pleasure in nothing. I 
have been a teacher, but that became very wearisome to me. 
I have been for eight years in the household of M. P., but it 
was always the same thing; however, I never said anything, I 
kept everything to myself.’ Q.—‘Have you ever thought of 
marrying?’ A.—‘Hever; and when any one made such pro- 
posals to me, I thought that they wished to insult me.’ Q.— 
‘ Have you suffered from violent grief?’ A.—‘ I cannot truly 
say that I have suffered more pain than pleasure; it was only 
when my brother was accidentally drowned that I experienced 
a great blow; hut, what is singular, I was not grieved at the 
idea of having lost him, but at the thought of his dying un- 
confessed.’ Q.—‘ Have you ever been dangerously sick ?’ A.— 
‘ Six months after the death of my brother, I was attacked 
with a severe illness (typhoid fever). Since that time I have 
been very restless; I get up during the night; I cannot sleep. 
The blood rushes to my head, and the desire of doing evil 
then takes possession of me.’ Q.—‘Explain clearly all that 
you have done up to this period.’ A.—‘ I used to arise at night 
and go torment my sister; I used to awake her and draw her 
to the foot of her bed. Once I bit her very badly in the hand.’ 
Q.—‘ On these occasions were you conscious of any pain ? had 
you no longer any appetite?’ A.—‘I suffered pain nowhere, 
except that my courses had stopped, and the physicians bled 
and put leeches on me to rectify that; but the more I was bled 
the more wicked I became ; I only thought of evil, and I only 
wished for evil; so much so, that I once told my sister to bring 
523 § 547] 
“MORAL INSANITY;” PSYCHOLOGICALLY: 
[book i. 
me an axe to cut some wood with, and when she brought it I 
tried to split her head. I ran after her, and if our parents had 
not interfered, I should certainly have killed her. As to appe- 
tite, I have always had too good a one; I eat like an animal. 
I was in the habit of taking pieces of bread and carrots from 
the troughs in our cow-stable. I am never able to satisfy 
myself.’ Q.—‘ If you had killed your sister, would you have 
been much grieved V A.—4 I think not; it would not have 
worried me at all. In the same manner, when I was at the 
hospital of Remiremont, I was always trying to kill somebody. 
Once I grasped a woman so hard by the throat, that I should 
have strangled her, if she had not cried out, and put out her 
tongue so far as to frighten me. I did nothing but dream of 
shedding blood; I could have drank it. Once I enticed six 
old women into the dormitory, wishing to strangle them; I 
commenced with one, but the others crying out obtained assist- 
ance. I was confined alone, and, as I could injure no one, I 
commenced biting my own hands (the signs of the cicatrices 
are still visible).’ Q.—4 Do you hear voices commanding you 
to do these frightful acts? Explain how it is possible for a 
girl well brought up to behave in such a manner.’ A.—4 I 
hear no voices, but I am pushed on to such a degree as to be 
unable to stop myself from performing them. When I am at 
church, instead of saying prayers, I blaspheme. They tried 
to place rosaries and images of the Holy Virgin in my hands, 
but I destroyed them. I always am desirous of overturning 
whatever is on the altar, and, when I see any girl by my side 
saying her prayers, I worry and pinch her.’ 
“ With regard to the two months that MarR C. has been at 
the asylum, she did not exaggerate the bad instincts that con- 
trol her. She has become the terror of her ward. We have 
been obliged to isolate her, because she arises during the night, 
drags the other patients out of bed, and tries to strangle them. 
She however works and occupies herself; but, suffer her to 
escape out of sight for a moment, and she leaves her work in 
order to tear up that of her companions. Approaching them 
with a sympathizing manner, and under pretence of seeing 
what they are doing, she twists their hands in her attempts 
to break their fingers. 
524 BOOK I.] 
AUTHORITIES MAINTAINING. 
[§ 549 
“ If the strait-waistcoat is put upon her, she finds means of 
placing herself in the way of every body, and tries to trip up 
her companions and to bite, all the while deploring her situa- 
tion and wishing to be delivered from it. But, even in ex- 
pressing her regrets, her face betrays no emotion, she remains 
impassible, and it is difficult to read upon her features any 
expression of the perverted sentiments which force this unfor- 
tunate to the performance of such deplorable acts, etc.”(w;) 
When, however, we analyze both the description and illus- 
tration thus given, we find in both signs of mental disease. 
“Cerebral malformation,” “feeble intelligence,” hereditary 
depravation, incapacity to control the thoughts—these form 
the very material on which the induction of mental insanity 
rests. 
§ 548. Campagne(:c) may he also ranked as a modified ad- 
herent of the same school, though, with the usual French 
passion for novel discrimination, he expurgates from his “ moral 
insanity” all the supposed “ moral monomanias,” and ends by 
rejecting Pinel’s descriptive title, ufolie raisonnante.” 
§ 549. M. Brierre de Boismont(?/) has been cited as a vindica- 
tor of the same doctrine, though not very accurately. In the 
first place, it may be observed that he disowns the French pa- 
rentage of the disease, calling it the “moral insanity of the Eng- 
lish;” closing his eyes to the fact that it is repudiated in toto by 
English jurists. In the second place, when he comes to define 
this “moral insanity of the English,” he gives symptoms very 
different from that phase of moral insanity which is described 
by exponents of this view among ourselves. Thus he declares 
that the disease in question is but a symptom or manifestation 
of general insanity. Intellectual derangement exists and will 
be displayed by the patient when off his guard. A cautious 
and protracted examination will even discover marks of mania 
in his letters. He does not trouble himself, we are further in- 
formed, about his acts of guilt, and generally does not regard 
(w) See Traite Theorique des Maladies Mentales, par M. Morel, tome i. p. 
310. Paris, 1852. 
(x) Traite de la Manie Raisonnante, par le Docteur Campagne. Paris, 
1869. 
(y) See liis essay in Annales d’Hygiene Publique, Nos. 53, 54. 1867. 
525 §551] 
“moral insanity;” psychologically: 
[book i. 
them as wrong. Certainly this “ moral insanity of the English” 
would not be regarded by English writers of this school as 
convertible with moral insanity as defined by themselves. 
§ 550. So as to Mittermaier, a jurist of great ability who has 
paid great attention to this question; but, when his writings 
on this topic are scrutinized, it will be found that this assump- 
tion is erroneous. In his edition of Feuerbach’s Lehrbuch des 
Peinliches Rechtsfz) he is careful to declare, (1) that the so- 
called latent insanity [amentia occulta) is not a substantive, in- 
dependent disease, and (2) that the assumption of monomania is 
gratuitous, because all alleged cases of insane monomania are 
resolvable into other forms of disease, and in sane monomania, 
responsibility is not extinguished. This brings him to the 
question of “ irresistible” impulse. He admits this condition, 
but he speaks of it as the incident of disease; and he links 
the symptom with melancholia, maintaining that when thus 
constituted there exists a powerful inpulse, an irresistible 
force [ein gewalthatiger Trieb, eine unwiderstehliche Kraft). This 
is very strong language; but he adds that to constitute this 
state, there must be at the time a suspension of self-conscious- 
ness. When this is conceded, and when we remember that he 
rejects the hypothesis both of amentia occulta and of monomania, 
we find that all that he admits is that in certain states of 
mental disease, there are, in connection with melancholia, irre- 
sistible impulses. 
§ 551. But the most consistent and philosophical vindication 
of these views is to be found in the Psychologie Naturelle, or 
Etude sur le Traitement des Alienes et des Criminels, by Dr. Prosper 
Despine, published in Paris in 1868. Capital punishment this 
learned theorist emphatically denounces as an invasion of in- 
alienable human rights. Retributive punishment of any kind 
is to be discarded, and only such punishment as is reformatory 
applied. Moral sense, he declares, is not the result of know- 
ledge, and cannot be acquired. Some men are destitute of it, 
and these men are not to be taught. Such a deficiency is moral 
insanity or moral idiocy. There may be intellectual clearness, 
and the capacity to reason accurately, coexistent with this de- 
(z) Giessen, 1847, p. 169, § 90a. 
526 EOOK I.] 
AUTHORITIES MAINTAINING. 
[§ 551 
rangement of the moral sense. To sustain this position, Des- 
pine is obliged to start a new difinition of free will (libre 
arbitre), which he informs us can only exist when there is 
capacity to act from a sense of duty. He who acts from other 
motives than a sense of duty is not a free agent. Hence from the 
category of free agents are to he removed, (1) he who does acts 
which appear to him indifferent, i. e. neither good nor had, and 
(2) he who does an act which appears pleasant to him, because 
it is pleasant. Duty he declares to be the great moral motive 
of life, compared with which all other moral motives are coarse 
and egoistic. He alone who acts in obedience to duty is free 
from selfishness and egoism. He, for instance, who obeys his 
parents from love is egoistic and selfish. He obeys from the 
pleasure he receives in obeying. He who obeys from duty, on 
the oftier hand, acts irrespective of his own pleasure and ad- 
vantage. He alone is unselfish. Yet duty is the high pre- 
rogative and the exclusive test of a moral agent. Except by 
those who are governed by a sense of duty, there can he no 
moral agency. He who is governed, not by duty, but by 
affection, or by any other form of feeling (the author forgets 
that sense of duty is also a feeling) simply follows the lower 
animals in the points in which they differ from man. Hence 
it is, according to Despine, that he alone who acts under a sense 
of duty is responsible. Those who are destitute of a sense of 
duty are not responsible. These propositions are supported 
by a very copious list of criminals whom Despine announces to 
have been destitute of moral sense ; which, with a boldness of 
assumption like that which characterizes his other psycholo- 
gical assertions, he declares to be proved by an absence in such 
cases of remorse or repentance for their evil deeds. In other 
words, where there is no remorse there is no moral sense, and 
where there is no moral sense, there is no responsibility, and 
where there is no responsibility there is no proper punishability. 
And this is then carried a stage further by the declaration that 
absence of moral sense is to be inferred from the commission 
of all gross and cruel crimes, and hence that such crimes imply 
irresponsibility. In other words, every great criminal is, in 
the moment of his crime, morally insane; and it is as unjust 
to punish such as it is unjust to punish lunatics. The fallacy 
527 § 553] 
“moral insanity;” psychologically: 
[book i. 
of this reasoning rests, it need scarcely be said, in the assump- 
tion that “ sense of duty,” like the various other faculties and 
properties of the mind, is contained in a separate and her- 
metical compartment; and that, when this compartment is 
empty, it cannot be filled by reason. But there is no such 
separation, as has been already fully shown, of the mind’s 
several faculties and functions; and it is notorious that in 
persons most destitute of natural sense of duty, this faculty 
may be supplied by reason. A man may naturally, for in- 
stance, be destitute of a sense of duty to government; but let 
government show that it means to be respected, and this sense 
of duty will soon spring up. So a child who, under a lax and 
indulgent mother, shows no sense of duty to parents, will soon, 
on the intervention of a firm and wise father, learn that there 
is such a duty, and act accordingly. Enlightened duty, in 
fact, is often the creature of positive law. Of course as to the 
insane there is no capacity to determine this law, and no ma- 
terial, therefore, from which duty can be deduced. But in 
the sane, it is the business of the law to create and guide this 
sense of duty, and this must be done by precept and penalty. 
(53) Present weight of authority is in the negative. 
§ 552. Among those by whom the theory was contested 
immediately after its promulgation may be mentioned Hein- 
rich,(a) and Leubuscher,(5) two very experienced German psy- 
chological physicians. With these may be classed, though 
later in date, Dr. Gray, of New York, whose great practical 
experience is given in a series of articles in the American 
Journal of Insanity. 
§ 553. Explicit in rejecting this hypothesis is Sch'drmayer. 
He insists that it is not to be supposed that a single impulse is 
diseased, while all the other functions of the mind retain their 
healthy action. While the entire intellect enjoys sound health, 
there is nothing in which a morbid desire of theft, murder, etc., 
(a) Ivritische Abliancllung iiber die von Prichard als Moral Insanity ges- 
childerte Krankheitsform. Allgemein. Zeitschr. fiir Psychiatrie, Y. Bd. 4 
Hft. 
G) Bemerkungen iiber Moral Insanity und iihnliche Krankheitszustande. 
Casper’s Wochenschr., Nr. 59 u. 51. 
528 BOOK I.] 
AUTHORITIES REPUDIATING. 
[§ 553 
could originate, and such a phenomenon is a psychological 
impossibility, and the assumption of such requires a psycholo- 
gical contradiction. A mania sine delirio, a mania without a 
morbid participation or disturbance of the perceptive faculties, 
is therefore out of the question, as a desire to injure or destroy 
is impossible without an act of the mind by which this pur- 
pose is entertained, and as reason and understanding are alike 
disordered whether they insinuate a wrong motive for the 
morbidly conceived purpose of the act, or whether they entirely 
omit the suggestion of any reason whatever.(c) 
So, also, Dr. Winslow: “Is there not,” he says, “a myste- 
rious, inscrutable, and inexplicable oneness in the constitution 
of the human mind, defying all attempts at an accurate and 
minute classification and separation of its powers? If such a 
state of mutual dependence, action, and union obtains between 
various states of mind (I will not use the arbitrary term 
‘ faculty’ or ‘ power’) in a condition of health, & fortiori, how im- 
possible it is to disjoin, separate, and individualize the mental 
faculties when under the influence of disease. Can we draw 
the line of demarcation between a diseased and healthy con- 
dition of the delicate structure of the vesicular neurine of the 
brain ? Is it not obviously impossible for the most experienced 
anatomist to say, This is the territory which separates the 
morbid from the healthy portion of the brain? or for the 
physician to assert, Such an extent of disorder of the mind is 
consistent with safety and Responsibility, but beyond the 
boundary danger and irresponsibility commence ? 
“But, apart altogether from the metaphysical objection to 
the theory, let us for a moment consider whether such a form 
of disease as partial insanity or monomania comes under the 
observation of the practical physician. There are, undoubtedly, 
forms of insanity in which there is an unhealthy predominanee 
and exaltation given to particular mental impressions or delu- 
sions; where certain states of morbid thought and feeling stand 
out in bold and prominent relief, giving, as it were, a character 
or type to the mental disease; but I never yet saw a case of 
alienation of mind in which the delusion of hallucination was in 
(c) Schurmayer, Gericht. Med. § 549; ante, § 58, etc. 
vol. i.—34 
529 530 
“MORAL INSANITY;” PSYCHOLOGICALLY: 
[book i. 
reality confined to one or two ideas, those ideas exercising no influ- 
ence over the conduct of the person, and not implicating, to a certain 
degree, the other faculties of the mind. It is impossible to circum- 
scribe the operation of morbid conditions of thought, or to 
draw a line of demarcation between those states of mind that 
are clearly under the influence of disease, and those operations 
or faculties of the intellect that remain apparently unaffected. 
A man believes himself to be our Saviour, or Mahomet the 
prophet. Apparently the man’s mind is sound upon all other 
points; but within what limits can we confine and restrain the 
influence of so serious a delusion? 
“ A slight accession of bodily disease, a severe attack of in- 
digestion, congestion of the liver, or a torpid state of the 
bowels, may make all the difference between security and 
safety in such a case. A person laboring under the dominion 
of one palpable insane delusion or hallucination (I am now 
using the term delusion in its strictly medical acceptation), 
ought not to be treated quoad the question of criminality as a 
sane and rational man. But let me for a minute revert to the 
question as to the existence of partial insanity, or monomania. 
Foville, a French physician of great celebrity, who had for 
many years the medical charge of the Charenton Lunatic Asy- 
lum near Paris, when speaking of monomania, observes: ‘ Mo- 
nomania consists in a delirium, partial and circumscribed to a 
small number of objects. Monomania, in its most simple 
condition, is excessively rare; the number of patients who only 
rave on one subject is infinitely small compared to the number 
of those who are called monomaniacs. Under this head are 
often confounded all those who have some habitual dominant 
idea. I have only seen two cases which rigorously merit the 
name, and these two even were affected from time to time with 
more extended delirium.’ 
“lie again remarks: ‘Let any one examine the hospitals of 
Paris, of Bicetre, of Charenton, and he will see that amongst 
the thousands of insane, there is scarcely one true monomaniac, 
perhaps not one. Insanity attacks principally, at one time the 
intellectual, at another the moral or affective faculties ; and, 
again, the sensations and movements. Each of these may be 
more or less affected than the others; and so, when the intel- 
530 BOOK I.J 
AUTHORITIES REPUDIATING. 
531 
lect, without being unaffected, is less deeply involved than the 
other faculties, we fall into the error of considering it sound, 
and call these monomaniacs. Indeed, it seems to me as though 
the descriptions of monomania had been written upon the word, 
and not from nature; that is to say, that writers have described 
what might merit the title of monomania, but of which they 
can find no instance in practice.’ 
“Moreau, also a great authority in France, says: ‘It is im- 
possible to admit that the intellectual faculties can be modified 
in a partial manner. In the slightest as well as the most 
severe forms of insanity, there is necessarily a complete meta- 
morphosis—a radical and absolute transformation of all the 
mental powers of the one. In other words, we are insane or 
we are not insane; we cannot be half deranged or three- 
quarters, full face or profile.’ 
“Baillarger, an eminent French psychological physician, 
adopts the same view of the question, and maintains that the 
alleged monomaniacal idea is more frequently predominant 
than exclusive. If we look to Germany, we find the first psy- 
chological authority of that country, Damerow, declaring that 
‘he never knew a case of the disease of the mind called mono- 
mania, in which there was not a fundamental, general psychical 
disorder.’ ”(d) 
§ 554. Dr. Mayo thus speaks on the same point: “I may 
observe that the theory of either moral or impulsive insanity 
is too liable, for anything that Dr. Pritchard has suggested, 
to occasion the sudden outbreaks of the brutal character—a 
character under rapid development, at present, in the lower 
orders of the country—to find refuge under this plea. Such 
was the application of it which, some years ago, protected the 
Honorable Mr. Touchet from the penal consequences of a great 
crime. That gentleman put to death, by a pistol-shot, the 
marker of a shooting-gallery. The act was sudden, and there 
was no apparent motive; but it was not performed under any 
semblance of delirium. Mr. Touchet was eccentric, and he 
was blase. He fancied that he desired to be hanged—at the 
(d) Dr. Forbes Winslow’s Essay on the Legal Doctrine of Responsibility, 
reprinted in Am. Journal of Insanity, vol. xv. p. 178. 
531 532 
“moral insanity;” psychologically: 
[book i. 
gallows he would probably have thought differently—and he 
was reckless and brutal enough to give himself a chance of 
this fate, at the expense of the life of a fellow creature. I 
have noticed him since, in the criminal department of Bedlam, 
insouciant and indifferent enough, but certainly not insane in 
any sense of the word that would not entirely disintegrate its 
meaning; neither when we proceed to consider the sense which 
the law intends to give to the expression of the certificate 
‘ unsoundness’—shall we find this epithet at all more appro- 
priate to Mr. Touchet’s case, which was simply one of brutal 
recklessness. With respect to the misapplication of the plea 
of insanity to hysteria, we have the case of a nursery-maid, 
placed in Bethlehem Hospital in 1846. A trifling disappoint- 
ment, relative to an article of dress, had produced in her a 
wayward state of mind. She labored, at the time, under 
diminished catamenia. An object to which she was generally 
much attached came in her way, namely, the infant whom she 
had nursed, and she destroyed it, as a fanciful child breaks, 
in its moodiness, a favorite doll. Ho fact more nearly ap- 
proaching to delirium than the above was stated in exculpa- 
tion or excuse at the trial. But Dr. Pritchard’s work on the 
different forms of Insanity, in relation to Jurisprudence, was 
published in 1842; and, by 1846, juries had learned to convert 
the uncontrolled influences of temper into what he terms 
Instinctive Insanity.” 
“As an instance of this class of cases in which the judicial 
authorities came rightly to a very different conclusion, I will 
quote to you the following one, from Sir Woodbine Parrish’s 
last work on Buenos Ayres. Having spoken of a certain 
wind occasional in that climate, which in some persons pro- 
duces peculiar irritability and ill-humor almost amounting to 
a disorder of their moral faculties, he proceeds as follows: 
‘ Some years ago, Juan Antonio Garcia, aged between thirty- 
five and forty, was executed for murder at Buenos Ayres. He 
was a person of some education, and rather remarkable for the 
civility and amenity of his manners; his countenance open, 
his disposition generous. When this vento-norte—this peculiar 
north wind—set in, he appeared to lose all command over him- 
self; and such became his irritability, that during its continu- 
532 BOOK I.] 
AUTHORITIES REPUDIATING. 
[§ 555 
ance he was engaged in continual quarrels and acts of violence. 
Before his execution, he admitted that it was the third man 
he had killed, besides being engaged in various fights with 
knives. When he arose from his bed in the morning, he told 
Sir Woodbine’s informant, he was always aware at once of its 
accursed influence upon him; a dull headache first, and then a 
feeling of impatience at everything about him. If he went 
abroad his headache generally became worse; a heavy weight 
seemed to hang over his temples. He saw objects as it were 
through a cloud, and was hardly conscious where he went, 
lie was fond of play, and if, in such a mood, a gambling house 
was in his way, he seldom resisted the temptation. Once there, 
a turn of ill luck would so irritate him, that he would pro- 
bably insult some one of the bystanders; if he met with any 
one disposed to resent his abuse, they seldom parted without 
bloodshed. The relations of Garcia corroborated this account, 
and added that no sooner had the cause of excitement passed 
away, than he would deplore and endeavor to repair the effects 
of his infirmity. ‘The medical man,’ says Sir Woodbine, ‘who 
gave me this account, attended him in his last moments, and 
expressed great anxiety to save his life, under the impression 
that he was hardly to be accounted a reasonable being.’ ‘But,’ 
he adds, ‘to have admitted that plea, would have led to the 
necessity of confining half the population of the city when the 
wind sets in.’ I quite agree with the conclusion which this 
remark implies, as to the fate of Garcia. He was himself 
aware of the murderous instinct to which he was liable, and 
of its exciting causes. Surely, when such knowledge is in the 
possession of the delinquent, he must be made responsible for 
the non-avoidance of exciting causes.”(e) 
§ 555. It is further insisted, as a question of fact, that in 
the so-called cases of moral insanity, mental unsoundness can 
almost in every instance be shown to exist by positive proof. 
This is illustrated by an “ analysis of fifty-two cases of insanity 
marked by a disposition to homicide,” furnished to the Ameri- 
can Journal of Insanity for October, 1857, by Dr. J. P. Gray. 
From this the following summary is extracted:— 
(e) Mayo on Medical Testimony in Lunacy, 58, 59, 60, 61, 62. 
533 534 
“moral insanity;” psychologically: 
[book I.. 
“Sex.—Of those who committed the act, nineteen were 
males and five females; of those who made unsuccessful at- 
tempts, twenty were males and five females. 
“Habits.—Of the entire number (fifty-two) twenty-three 
were intemperate, or vicious, bad men, and twenty-nine were 
of unexceptionable character and habits. 
“ Hereditary Predisposition.—In twenty-one of the fifty-two 
cases there existed a marked hereditary predisposition, in nine 
no such predisposition existed, and in twenty-two no facts 
touching this point were ascertained. 
“ Mental Disease.—The form of mental disease was acute 
mania in fourteen cases, subacute mania in three, paroxysmal 
mania in two, chronic mania in four, dementia in twenty-four, 
melancholia in four, mania-a-potu in one. Four of the cases 
of mania and one of dementia were accompanied by epilepsy. 
“ Time.—Twenty-two of the twenty-four homicides were 
committed in the daytime, the remaining two in the early 
part of the evening. Of the twenty-five attempts, twenty-one 
were made in the daytime, two in the night, and two both in 
the day and night. 
“ Object of Attack.—A father was the victim in one case, a 
brother-in-law in one, a husband in one, wives in four, children 
in ten, a cousin in one, neighbors in four, neighbors’ children 
in three, and entire strangers in seven cases. In nearly the 
same proportion the immediate relations of the patients were 
the objects of attack in those cases in which the attempt was 
unsuccessful. 
“ Suicidal Disposition.—In ten of the fifty-two cases a sui- 
cidal tendency accompanied the disposition to homicide. 
“ Commitment to Asylum.—Of the twenty-four homicides, 
eleven were acquitted by the courts before which they were 
arraigned, on ground of insanity, and ordered to the asylum ; 
one was found guilty, but sentence was suspended; four were 
sent here on preliminary trial, six without any criminal pro- 
ceedings ; and two were placed in the asylum by their friends. 
“ Results.—Of the twenty-four patients who committed 
homicide, seven recovered, eleven are unimproved, two eloped, 
and four have died. Of the twenty-five patients who were 
534 BOOK I.] 
AUTHORITIES REPUDIATING. 
[§ 556 
prevented from carrying their homicidal purpose into execution, 
eight recovered, thirteen are unimproved, and four have died. 
“Arranging these cases under Dr. Bucknill’s very convenient 
modified classification of Esquirol, we have the following 
result:— 
“ 1. ‘Those wherein the crime has been occasioned by delu- 
sion, and no reasonable person can doubt or object to the irre- 
sponsibility of the offender.’ In this class we have thirty-four 
of the fifty-two cases. 
“ 2. ‘ Wherein the offender, though suffering from cerebro- 
mental disease, has committed the crime under the influence 
of some motive not of a delusive character.’ In this class we 
have seven of the fifty-two cases. 
“ 3. ‘ Where with general symptoms of cerebro-mental disease 
neither delusion nor motive for the crime is discernible.’ In 
this class we have eleven of the fifty-two cases.” 
§ 556. Greisinger’s eminence as an expert in this branch of 
science, no one can question. We may not fully accept the 
statement of Dr. Robertson and Dr. Rutherford, his English 
that “he is essentially the representative and the 
acknowledged leader of the modern German medical thought,’’ 
for this, so far as the question of primacy goes, may be contested; 
but we cannot contest the position, that, as a careful and phi- 
losophic observer of mental phenomena, no living authority 
can surpass him, either as to philosophic conception or sober 
accuracy of induction. On the subject before us he thus speaks: 
“ Before concluding the consideration of this subject it may be 
well to say a few words regarding the so-called mania sine 
delirio, a pathological variety established by Pinel, we may say, 
to the detriment of science; for so true and so serviceable was 
the remark which Pinel deduced from his observations, that 
the violent actions in mania are not always founded upon per- 
version of the ideas—we are of opinion now-a-days that origi- 
nally this is altogether not the case—so confusing was it to 
give the same designation to two different morbid mental 
states; namely, on the one hand, to actual periodic attacks of 
fury with very little delirium, and, on the other hand, and 
(/) Sydenham ed. 1867. 
535 § 556] 
“MORAL INSANITY;” PSYCHOLOGICALLY: 
[book I. 
principally, to those moderate states of mental exaltation re- 
ferred to in the former paragraph, in which the patients per- 
form foolish actions and show perversity of demeanor, but 
are also in a position to justify and to explain their conduct 
by a course of coherent reasoning which still lies within the 
bounds of possibility, i. e., folie raisonnante. The disciples of 
Pinel have even ranged other states under the same title; for 
example, that condition which we have described as a moderate 
degree of melancholia with violence, and, more than this, even 
outbreaks of violence in consequence of hitherto concealed 
fixed ideas: for the latter there is not even the appearance of 
reason. 
“ If we consider more closely to which maniacal states the 
designation mania sine delirio can be applied, we recognize the 
fundamental fact that in no single case of mania is the con- 
scious thought, the intelligence, perfectly free from any disorder. 
“ Even in the very slightest degrees of mania the intelligence 
participates in the general exaltation, though it be only to the 
extent of increased liveliness and rapidity of thought; generally, 
however, there is incoherence. 
“ In all attacks of fury, clear, calm, hearty thought is quite 
impossible. It is true that maniacs can occasionally, by means 
of exhortation, be brought for a short time to their senses, and 
be enabled to give correct answers; but this only shows, as 
Jessen remarked, the possibility of temporary remissions and 
intermissions; ‘the patient is not delirious when he speaks 
sensibly, and he does not speak sensibly in those moments in 
which he is delirious.’ Neither can we speak of the absence 
of delirium in those cases, which we have described, where 
there is a morbid impulse to commit acts of violence. Then 
those murderous ideas which are not at all in accordance with 
external moral causes, but awakened by a morbid disposition, 
are already in themselves delirious ideas, just as in furious 
mania and in all violent emotion—for example, rage—there 
arise new ideas, opinions, and conclusions, corresponding to 
the morbid disposition. 
“ Those states in which there is least confusion of ideas and 
delirious perceptions, in which there is the greatest amount of 
logical coherence in thought, are the slight states of exaltation 
536 BOOK I.] 
AUTHORITIES REPUDIATING. 
[§ 557 
which we have described in the foregoing paragraph, which, 
however, are generally merely the forerunners of the com- 
mencement of violent mania. For these, for folie raisonnante, 
we might, as Pinel in part did, use the name mania sine de- 
lirio ; but, as in concrete cases it is of little practical advantage 
to range cases under consideration under certain names, but of 
far more to obtain a psychological appreciation of the funda- 
mental morbid psychical state, the circumstances which have 
caused its development and its consequences, it is, at all events, 
more advisable to allow those obscure names which provoke 
the curiosity of lawyers and other laymen to fall completely 
into disuse.”(y) 
§ 557. “Truly unfortunate has it been for our professional 
speciality,” remarks an experienced American psychological 
physician, Dr. McFarland, “ that the term ‘ moral insanity’ 
has ever had mention. The phrase itself is a luckless inven- 
tion, not only liable to an infinitude of misconception, but 
conveying ideas calculated wholly to mislead. It is as if there 
was some separate kind of insanity, located in some ‘ terra in- 
cognita’ which no man has yet discovered, wholly independent 
of the brain or any of its functions or operations. What is 
its seat or what are the organs of its abode or production, are 
questions which those who employ the term are themselves 
puzzled to answer. 
“ It does not seem to be considered by those who give cur- 
rency to the expression that its whole idea implies another 
centre of sensations, emotions, or passions, than their great 
legitimate one, the brain. In the first place, it may seriously* 
be questioned whether such a case as is usually described to 
set forth the idea, is ever actually seen. Experience brings 
before the mind a multitude of cases, not actually realizing 
the full idea, but which are close approximations to it. How 
it is this close resemblance between cases which do exist and a 
certain ideal of disease borne in the imagination which leads 
us astray. The small difference which does exist between the 
case which every one has in hand and the ideal one, is always 
enough to destroy the value of the instance. It has always 
(g) Griesinger on Mental Diseases. Syden. ed. (1867), § 140. 
537 § 558] 
“moral insanity;” psychologically: 
[book i. 
seemed as if all that is included in the idea of moral insanity 
might be better disposed of by a closer reference to phenomena 
of insanity which are of every-day occurrence. Every one 
realizes how few of the delusions of the insane mind are ever 
revealed, and how readily they are revealed under one set of 
circumstances and concealed under others. All insane asylums 
abound in cases of unquestionable mental disease, where its 
palpable manifestations are so slight that the unskilled observer 
would doubt its existence. A certain suspicious reserve, a 
mysterious shyness of manner, some haughtiness of bearing, 
or something marked and singular in gait, or tone of voice, 
some strange attachment to a particular seat, or special stress 
applied to the doing of some trivial act, may be all that dis- 
tinguishes the individual from other men. Yet one guided by 
experience has no hesitation in declaring such cases to be in- 
stances of latent delusion; and is prepared for the sudden ex- 
hibition of extreme or violent acts of which any of these 
almost unobserved antecedent peculiarities furnishes the ex- 
planatory key. In such cases, the extent of the disease is not 
at all measured by what appears on the surface. 
“ The delusion which has possession of the mind may even 
have no outward form of manifestation whatever, that can be 
detected, and yet may give rise to all those singular, inexpli- 
cable, and perhaps violent acts, which a failure to explain by 
any anterior indications of delusion has styled moral insanity. 
It is very easy, especially with those much conversant with 
the insane, to conceive a case possessing all the attributes 
assigned to the form of disease here called in question; but 
before admitting any such case as an existing fact, the possi- 
bility of a latent delusion underlying its characteristic perver- 
sities of conduct should be deeply considered.”^1) 
§ 558. Dr. Jules Falret, in a very able paper read by him at 
a meeting of the Socidtd Medico-Psychologique, in January, 
1866, argued with great fulness and power to the same efiect.(A) 
From this paper we make the following extracts:— 
“ I shall only say that, for my part, I firmly believe, theo- 
Cg') American Journal of Insanity, April, 1863. 
(7t) See translation in 23 Amer. Journ. of Insanity, 406. 
538 BOOK I.] 
AUTHORITIES REPUDIATING. 
[§ 559 
retically and practically, in the perfect unity of action of the 
various mental faculties, both in the sane and the insane. In 
reasoning or moral insanity clinical observation proves, in my 
opinion, that there may he a great excess of disorder in the 
moral or instinctive faculties, hut that it is never entirely 
absent from the intelligence. Psychologists do not admit, in 
the healthy mind, the distinct existence of the several faculties, 
except as a convenience of study. These faculties are then, in 
reality, only different modes of action of one indivisible mind. 
They can no more act separately in a state of health than they 
can be affected separately by disease. Several faculties always 
co-operate for the production of each one of our mental acts; 
and thus every one of these is a product of the simultaneous 
action of more than one of the primitive powers of the mind. 
So in disease, there may and often does exist a predominant 
lesion of a single faculty, hut there is never an affection of one 
alone, the others being left entirely untouched. 
“ In Germany, the medical alienists of the first part of the 
century, such as Reil, Ileinroth, Hoff bauer, etc., also sustained 
the reality of an insanity without delirium; but in 1822, 
Henke, the celebrated founder of the Journal of Legal Medicine, 
which is continued to the present time, began to question this 
prevalent doctrine. Since that period the contest among Ger- 
man physicians upon this capital question has been very 
animated; hut, little by little, the opinion first maintained by 
Henke has finally triumphed, and it is to-day the dominant 
one in Germany. 
“ Professor Griesinger, in his Treatise on Mental Diseases, 
asserts, in effect, very distinctly, that there is no such thing as 
insanity without lesion of the understanding. He even goes 
so far as to say (p. 355), that the creation of manie sans delire, 
by Pinel, was a misfortune for science. 
§ 559. “In Prance, in 1810, my father, in his thesis, com- 
menced the reaction against the opinion of Pinel, by denying, 
absolutely, the existence of manie sans delire. Since then, Marc, 
Georget, and most of the disciples of Pinel, have sustained the 
doctrine of their masters, and the possibility of the separate 
lesion of the intellectual and instinctive faculties in insanity is 
yet generally admitted among us. Nevertheless, many medical 
539 540 
“MORAL INSANITY;” PSYCHOLOGICALLY: 
[book i. 
alienists have begun to abandon this extreme position, and, 
for my part, I am convinced that the more rigorous and com- 
plete study of the facts now brought arbitrarily together under 
the name of folie sans delire will lead all conscientious observers 
to admit the correctness of that doctrine which is to me a de- 
monstrated truth, namely, that there does not exist in mental 
disease an isolated lesion of the feeling, or of the instincts ; in 
other words, that there is no such thing as folie sans delire. 
“ To judge of the mental state of an individual under ex- 
amination ; to ascertain whether he remains yet within the 
limits of health (with all the infinite varieties of character 
and capability which cause men to differ so profoundly), or 
belongs to that large class of those laboring under cerebral 
disorders, with loss of reason and freewill; let us not be con- 
tent with studying a single aspect of his understanding or 
feelings, in the predominant idea of sentiment'which first 
strikes us, or the criminal act to which the magistrate has 
called our attention. Let us not say of him, here is a mono- 
maniac who manifests jealousy, love, religion, or ambition, in 
a manner that is not that of a reasonable man. Let us not 
say, here is a wicked creature, violent and passionate, or else 
a person dominated by an idea which is fixed, eccentric, un- 
usual, strange; and then ask ourselves whether this passion or 
fixed idea is held within the limits of health, or had charac- 
teristics which permit it to be viewed as the product of 
disease. 
“ If we have to do with an act before the tribunals, let us 
not say, this person has committed an extraordinary act, a 
robbery, an incendiarism, a murder under exceptional circum- 
stances, or a deed of monstrous lust, and, therefore, has been 
moved by a propensity to murder, robbery, incendiarism, or 
lust amounting to disease. We ought not to declare that the 
act which has been committed is so strange in itself, in its 
motives, and in the circumstances which accompanied and 
followed it, that it can be attributed to nothing less than a 
derangement of the reason, or to disease. Let us not say this, 
for it is possible to show us in the sane man an uninterrupted 
series of facts analogous to these, which will lead us, by in- 
sensible transitions, from reason to insanity, from passion to 
540 BOOK I.] 
AUTHORITIES REPUDIATING. 
[§ 559 
disease, without it being possible to make the precise line of 
division, and thus render our diagnosis very embarrassing. 
“ But let us examine the individual in another manner. 
Let us completely change the terms of the problem to be 
solved, and then we shall discover a new light upon our un- 
certain path. Instead of taking into especial consideration 
the most striking fact presented to us, the dominant passion 
or idea, which seems to be the only point of departure for other 
ideas, or for the conduct of the person under examination; 
instead of fixing our principal attention upon the act with 
which he is charged, and which is submitted to our investiga- 
tion, let us abandon this narrow and exclusive point of view 
to consider the individual as a whole, in his entire physical 
and moral constitution, in his past, his present, and his future. 
“Let us make, in a word, a medical examination, as we 
would in the case of a patient laboring under any other form 
of disease. Let us, then, cease to waste words in discussing 
the fluctuating and arbitrary limits which theoretically divide 
sin, passion, and natural mental errors, from the morbid ideas 
and feelings of insanity. Let us study, clinically, the whole 
body of physical and moral phenomena which the history and 
present condition of our patient afford. Let us bring together 
all who have any knowledge of him, and trace back as far as 
possible into his past, even to his birth and ancestry. Let us 
inform ourselves of all that he has said and done, for a long 
time previous to the period at which his mental condition is 
to be determined. Let us question him personally, and through 
others, and by the help of all this data, gathered from the past 
and the present, let us build up the history of his entire life. 
In a word, let us make our observation complete, instead of 
confining our attention to the point which is most prominent, 
or has first attracted our notice. 
“ Again, let us compare the individual with himself at dif- 
ferent periods of his life; with the modes of thinking, the 
conduct, ideas, feelings, and acts common to men in the same 
condition of life as his own. Let us judge him by the crite- 
rion of common sense, and in the light of the prevailing ideas, 
the manners and social customs of his age. Let us see if his 
conduct has conformed to general good sense, or if he has not 
541 § 559] 
“moral insanity;” psychologically: 
[book i. 
set himself too violently against all those common ideas, re- 
ceived notions, and minor customs, which are the basis of the 
general reason of mankind. 
“ For in this standard of common sense, with the numerous 
variations possible to it in individual cases, lies the primary 
point of comparison for us, by which, in the last analysis, we 
may decide between reason and insanity. But above all, let 
us be certain, that, if insanity is present, it does not consist 
alone in an idea, a feeling, or an act emerging unexpectedly 
from a mind otherwise free from disease, or in connection with 
a physical organism the functions of which are perfectly nor- 
mal. We may be sure that the person in whom we have dis- 
covered something unusual, which suggests the possibility of 
insanity, has at the same time, or has previously had, other 
and more complex symptoms of moral and physical disorder. 
“ If, then, we seek carefully in all the bodily organs, and in 
all the intellectual and moral manifestations, we shall discover 
numerous morbid phenomena, forming a complete body of 
facts, and succeeding each other in a definite order; that is, 
there will be a progress, with its periods of intermission, and, 
in a word, all that really belongs to a pathological condition. 
To sum up what I have said: If we would be able to demon- 
strate the existence of mental disease in a case brought before 
us, we must find, besides physical symptoms, many psychical 
ones in the spheres of the intellect, the feelings, and the in- 
stincts, and also a certain progress, or pathological evolution, 
with periods of incubation, invasion, remission, and exacerba- 
tion : that is, phenomena variable in their nature or intensity, 
according to the moment at which the patient is observed. 
Here is the true criterion, by the aid of which the physician 
may form a diagnosis of insanity, with a certainty far greater 
than he could attain through the means furnished him bv 
philosophers and magistrates: A mental disease is a pathological 
state, denoted by physical symptoms, by many [mutiples] psychical 
symptoms, and by a definite progress in the order of their succes- 
sion. 
“ These are the three indispensable means for recognizing 
insanity in general, and for distinguishing it from passion and 
542 BOOK T.] 
AUTHORITIES REPUDIATING. 
543 
those eccentricities of character which are compatible with a 
physiological condition.” 
§ 560. “ It is very questionable,” says one of the most emi- 
nent and experienced of American alienists, Dr. Joseph Work- 
“whether more injury than benefit has not been ren- 
dered to the interests of justice and humanity by the earnest- 
ness with which the moral insanity section have urged their 
views; or, perhaps, more correctly speaking, by the confusion 
which they have introduced into a subject requiring to be in- 
vestigated with rigid philosophic exactitude.”^') 
§ 561. It is also proper to mention that the theory of moral 
insanity, as such, was emphatically repudiated by the great 
body of the members of the association of medical superin- 
tendents for the insane, at the meeting in Washington on 
April 20th, 1866, reported in the American Journal of Insanity 
of that year.(A:) 
§ 562. Dr. Liman’s edition (1871) of Casper’s Medical Juris- 
prudence is the highest contemporaneous medico-juridical 
authority in Prussia, if not throughout all Germany. In this 
work he repeatedly denounces the theory of an insanity exclu- 
sively moral as absurd, as repugnant to all sane psychology, 
as utterly without any inductive basis of fact, and as de- 
structive of sound penal jurisprudence. To the same effect, he 
reports a series of decisions of governmental experts, being 
the most eminent men in their profession in the German 
States. 
§ 563. Dr. A. F. Berner, Professor of Jurisprudence in the 
University of Berlin, may be viewed (1872) as one of the most 
accurate and authoritative of German jurists in this depart- 
ment. In the fifth edition of his Lehrbuch des Deutschen Straf- 
redits, published in Leipzig in 1871, he states the German law 
on this subject with great positiveness. “To constitute re- 
sponsibility,” he says,(/) “ that is to say, penal accountability, 
it is necessary that there should exist, (1) consciousness of self; 
(2) consciousness of the exterior world; and (3) a developed 
(*') 19 Am. Journ. of Ins. 406. 
(j) S. P. Review, by Dr. And. McFarland, ibid. 462. 
(&) See also remarks of Dr. Chipley, supra, § 175, note (o’). 
(0 § 77. 
543 544 
“moral insanity;” psychologically: 
[book i. 
consciousness of duty. In these incidents of intelligence inner 
freedom is involved; this freedom is not, therefore, to be 
proved independently as a substantive essential of responsi- 
bility. A lunacy of the will (and thus a derangement of 
freedom) as coexisting with underanged intellect {mania sine 
delirio) is impossible.” 
§ 564. Dr. Krafft-Ebing is (1872) a German psychological 
physician of high eminence both for psychological acuteness 
and for great practical experience, having been for years physi- 
cian to the asylum at Illenau, in Baden, one of the largest and 
most admirable in Europe. In an essay in Friedreich’s Blatter 
for September, 1871, this eminent writer distinguishes “moral 
insanity” from sane criminality, by the fact that the illegal 
act in the former is involuntary, springing from cerebral dis- 
ease, while in the latter it is voluntary, the reason remaining 
unimpaired. “We have learned from experience,” so he de- 
clares, “that immorality, ethical depravation, and criminal 
proclivities, may spring from physical as well as from moral 
grounds.” “If we can perceive general signs of cerebral dis- 
ease, and trace to this disease the distinguishing psychical 
symptoms, then we make out the distinction between a volun- 
tary surrender to immoral inclinations, and an immoral cri- 
minal life, on the one side, and, on the other side, a state that 
is only apparently voluntary, but is really conditioned on 
organic causes.” As tests of this cerebral disease, he gives 
the following:— 
1. Either a diseased cerebral organization is congenital, or 
a serious cerebral disease is shown to have subsequently attacked 
the patient and produced change of character. In the former 
case the condition is one of moral idiocy. The latter is tech- 
nically that of “ moral insanity.” The former is traceable to 
hereditary causes, to epilepsy, derangement, drunkenness in 
the parent. When the “ moral” symptoms result from cerebral 
injury, they are apt to betray their progressive character in 
the prodromal stages of derangement—melancholy, incipient 
paralysis, hysterical and epileptical attacks. The close con- 
nection between the physical and the moral in this respect is 
shown by the fact that a diseased perversion of the moral feel- 
ings often follows attacks of mania, of epilepsy, of apoplexy, 
544 BOOK I.] 
AUTHORITIES REPUDIATING. 
[§ 564 
of meningitis, and of cerebral disease induced by mechanical 
injuries and by alcoholic excesses. In women, obstetrical 
causes operate in the same way. 
2. In most cases there exists in the sphere of the nervous 
system other functional disturbances as well as physical de- 
formities. Among the latter may be noticed malformations 
of the skull, imperfections of the senses, deformities in the 
extremities (e. g. club-feet), strabismus, obstructions of the 
sexual organs. 
3. Cerebral diseases, resulting from the peculiar cerebral 
organization above stated, are more common than with indi- 
viduals normally constituted. 
4. There is a peculiar tendency to congestion of the brain, 
and with this are coupled capricious and motiveless changes 
of disposition, morbid fixed prejudices, excessive irritability, 
and vehement transient passions. 
5. There is a perceptible contraction of the scope of the in- 
tellectual renditions, approaching to actual imbecility, though 
this is less prominent from the conspicuousness of the moral 
deficiency in such patients, and their instinctive cunning and 
viciousness. 
6. With these symptoms coexist anomalies of the natural 
passions, especially of the sexual instinct, which is developed 
in morbid precocity, and strikes out in directions which are 
perverse and foreign to natural life. 
7. The organic basis of the disease (which is only superficially 
of an exclusively ethical character) exhibits itself in features 
which are progressive and entirely independent of outward 
circumstances; and in this form, certain immoral instincts, 
such as those for drink, stealing, and vagabondage, start to 
light sometimes with marked periodicity. 
Hence, to constitute “ moral insanity,” it is necessary, ac- 
cording to this accomplished observer, that it should be the 
result of ascertainable cerebral disease. So far from the mind 
being sane, in this state, he emphatically argues that the con- 
trary is the case. Insane ideas and delusions of the senses, 
it is true, may not exist; but he declares that it is impossible 
in the face of an exact clinical analysis, to maintain that the 
intellectual processes run an undisturbed course. In spite of 
yol. i.—35 
545 § 565] 
“MORAL INSANITY:” 
[BOOK I. 
the cunning and energy, he declares, with which such patients 
seek to carry out their abnormal instincts, they “are intel- 
lectually weak, unproductive, incapable of practical business 
or orderly activity, are marked by defective capacity for edu- 
cation, are one-sided and twisted in their mental action, and 
of very contracted judgment. In no case marked by this ob- 
trusive moral debility, is there wanting some intellectual 
defect; and most patients of this class are intellectual imbe- 
ciles.” “It is worthy of notice,” he continues, that in this 
disease “ there is a peculiar disorder of the perceptive faculties, 
namely, in the process of reproduction, so that the reproduced 
representation is never identical with the original perception, 
though the patient holds it to he such. Hence, he appears 
ethically a liar, and exhibits his supposed experiences in an 
entirely distorted shape. * * Hence it is that an abstract, 
a formal, intellectual knowledge of right and wrong, without 
ethical capacity for the same, intervenes. * * In persons 
of this class occur further formal disturbances of the percep- 
tions—divergent processes of ideas, unique associations of 
ideas, peculiar fixed fancies, conceptions emanating from ab- 
normal passions. That which in such persons stands out in 
marked peculiarity, and which can be traced only to intel- 
lectual defect, is their incapacity to distinguish not merely 
what is immoral, but that which is positively and unnaturally 
perverted, and the injury wrought by their own acts to them- 
selves, coupled with their neglect, in their crimes, of the ordi- 
nary rules of prudence, and a want (notwithstanding many 
marks of mental subtlety) of every quality of self-control and 
self-guidance.” 
§ 565. It has been said that the rejection of “ moral in- 
sanity,” mania sine delirio, instinctive mania, etc., has led to 
the conviction of a number of persons who are really insane 
and irresponsible, but who, on the narrow tests adopted by the 
courts, are pronounced sane. This assertion, however, is un- 
supported by fact. In Prussia, “ moral insanity,” mania sine 
delirioy and instinctive mania, are repudiated not only by the 
courts, but by the eminent physicians who act as authorized 
medical experts. An examination of the reported cases down 
to 1872 will show that the tests applied emphatically exclude 
546 BOOK I.] 
UNSUSTAINED IN FACT. 
[§ 566 
“ insanity exclusively moral,” and “ irresistible impulse,” from 
the category of legitimate defence. Now how is it with the 
persons so convicted ? Have they, in any number, proved to 
be insane? The Berlin Criminal-Gefangniss records,between 
1841 and 1870 (30 years), 189,167 prisoners. Among these 
only 148 are reported as insane. “In a great criminal prison,” 
says Hr. Liman, commenting on this return, “which serves 
as the sewer of the Proletariat of a great city, and which re- 
ceives very many old and previously convicted criminals, there 
is, therefore, on an average, only from three to five lunatics to 
ten thousand prisoners; and among all the reported sicknesses, 
from the slightest rheumatism upwards, were only three- 
tenths out of a hundred insane. This, so far from being an 
unfavorable proportion, is surprisingly favorable. We have 
here a proportion of lunatics to our population of criminals 
that does not materially differ from the proportion to the entire 
population. It is true the Stadtvoigtei (the prison referred 
to) is a prison of ordinary detention, and for convicts is not often 
permanently assigned. But even in the prisons with solitary 
confinement, so far as, in and out of Germany, I have obtained 
information of these institutions, I have found no marked in- 
crease of this proportion; and so far as concerns our great 
prison of this class, I can say distinctly that from its opening 
to the present day, a disproportionate number of lunatics 
has never been observed there, though it is a prison assigned 
only to those guilty of the more atrocious crimes.” 
§ 566. It is true that we have, as disputing these conclu- 
sions, two recent publications (1870), by Dr. J. Thomson, phy- 
sician to the Scotch Central Penitentiary.(m) It is maintained 
by Dr. Thomson that the statistics of prisons show that crime 
is sometimes hereditary; that it descends coincidently with 
physical defects; that there is such a thing as an irreclaimable 
criminal class, and that in this class crime is largely mixed 
with insanity. He argues that in this class the moral sense is 
absolutely wanting; and as proof he cites, (1) the frequent 
relapses of professional law-breakers; (2) the tendency of such 
persons to commit crimes when in prison ; (3) their apparent 
(m) Journal of Mental Science, Jan. and Oct. 1870. 
547 § 566] 
“moral insanity:” 
[book i. 
incapacity for remorse, exhibited by their quiet sleep, and their 
moral apathy, and (4) their inaccessibility to educational and 
reformatory influences. Their proclivity to insanity he seeks 
to show by their disposition to cerebral disorders; and he 
asserts that in the Scotch prisons the percentage of insanity is 
three times greater than obtains in the population at large. 
But the replies to this are obvious. As to percentage of in- 
sanity, the results are in conflict with those of the German 
statistics, which cover a far wider sphere, and are based on 
observations much more exact; and even if Ave take Dr. Thom- 
son’s returns as exhaustive, we must remember that unbridled 
passions have of themselves a tendency to produce insanity, 
and that this is an additional reason why passion, by educa- 
tion and penal discipline, should he placed under restraint.(n) 
[Nor should.it be forgotten that among moral agents the power 
to do right implies the power to do wrong; that each succes- 
sive indulgence of guilty passion makes the temptation to 
future indulgences stronger, and the restraints less; that the 
knowledge that character is lost by public conviction and dis- 
grace removes one of the most important of such restraints. 
These considerations, therefore, instead of prompting to senti- 
mentalize crime by treating it as a mere disease, should lead us 
to take even more stringent measures to prevent its commission. 
In other words, the very circumstance that crime generates 
crime, if not insanity, is an additional argument for penal laws 
which, while humane, shall be widely published and firmly 
executed. 
To the charge of cruelty, it may be well replied, (1) that a 
lax view of crime, at a period when the character is forming, 
is apt to lead to those first and incipient offences, which, if the 
view here contested be correct, generate a sequence of other 
offences each surpassing its predecessor in facility and obduracy; 
(2) that the alternative proposed by Dr. Thomson, of the in- 
definite incarceration of such offenders “during puberty,”(o) 
is at least as inhuman as the corrective and limited imprison- 
ments that the law in ordinary cases awards ; and (3) that if 
(a) See supra, §§ 115, 188, 403. 
(o) See supra, § 187. 
548 BOOK I.] 
OBJECTIONS. 
[§ 566a 
there be any cruelty in penal jurisprudence that is peculiarly 
reprehensible, it is that which treats any class of offenders as 
absolutely irreclaimable. Nor is this latter assumption founded 
on fact. Of course it is a,well-known moral law, as has j ust 
been stated, that each repetition of crime makes reform more 
difficult. But the reports of the American prison discipline 
societies show that in proper conditions, where the convict, on 
discharge, is aided in his efforts to move into a new sphere where 
the disgrace of his convictions will not drag him down, re- 
forms have been frequent. 
§ 566a. Humanity, no doubt, has been one of the chief 
causes which has led to the utterance of this doctrine by 
amiable but speculative theorists. They saw or conceived of 
a particular offender, whose sanity they could doubt, exposed 
to capital punishment; and the plea, under the impulses of 
humanity, was offered for his rescue. But humanity, in such 
a guise, is often the greatest inhumanity even to those whom 
it was especially intended to shelter. We have shown,(p) 
(1) that in this way the educational and disciplinary influence 
of the State would be withdrawn from such classes, and they 
would be treated as an irreclaimable criminal class; and (2) 
that the punishment invoked by the advocates of this view, 
i. e., permanent incarceration, or, to adopt Dr. Thomson’s ex- 
traordinary alternative, imprisonment during puberty, is far 
severer than the average punishments inflicted on sane crimi- 
nals. In consequence we would have the following result: 
“moral insanity” would only be pleaded in capital cases. 
Hence, in most cases less than capital, the “ morally insane” 
would, to avoid a greater penalty than that the law assigns to 
the sane, keep their “ insanity” in the background. But this 
a consistent application of the theory would not permit. The 
plea would have to be offered, no matter how light the offence, 
and permanent incarceration decreed. We would either, there- 
fore, have a gross inconsistency in our criminal practice—one 
law for capital cases, and another law for cases less than capi- 
tal—or we would have to shut up for life all the “morally 
(p) Supra, §§ 115-118, 186, 403, 539. 
549 § 566a] 
“moral insanity.” 
[book i. 
insane,” no matter how venial might be the eccentricities into 
which their “insanity” exudes. 
Of another evil consequence, Dr. Ranney, of the New York 
City Lunatic Asylum, in his Annual Report of 1864, speaks, 
when animadverting on “the modern error in elevating vice 
and crime to the same level with mental disease, or in con- 
founding them with it. The most vicious and criminal acts 
are regarded as the result of a blind necessity, a kind of mad- 
ness which renders the party irresponsible, thus affording to 
the swindler, the thief, the assassin, a ready means of escape 
from punishment.” The effect of the plea of irresponibility 
in such cases is not only to do a great injury to the insane, 
but to create “a prejudice against its adoption when demanded 
by strict justice and common humanity.” 
“ A good illustration of the effects of public prejudice is given 
by two trials for murder in an adjoining State, in which .the 
separate verdicts seem to hold to each other the relation of 
cause and effect. In 1851, Margaret Gerraty was tried in New 
Jersey for the assassination of her seducer. The seduction 
was accomplished under a promise of marriage, and the subse- 
quent treatment was of a most aggravating character. Public 
sympathy was strongly aroused in her favor, and, much to the 
surprise of all, the verdict of the jury declared her ‘not guilty, 
on the ground of insanity.’ Six physicians were immediately 
appointed by the court to examine the alleged lunatic, who 
reported they could find no evidence of ‘ unsound mind,’ and in 
accordance with this opinion she was discharged from custody. 
“In 1859, Patrick Maude was executed for the murder of 
his sister. Two years previous he attempted to kill his wife, 
and although tried and convicted, was found to be of unsound 
mind, and sent to the asylum at Trenton. lie effected his 
escape, and two days after committed the murder. On his 
trial it was shown, that before and after the homicide he mani- 
fested insane delusions, and his whole course of conduct while 
in the asylum and in prison, as well as his noted speech on the 
gallows, proved conclusively that he was insane. But there 
had been a reaction in the mind of the community. The plea 
of insanity had been used in a former case to defraud justice 
of its due, and now a victim must be offered, though in the 
550 BOOK I.] 
SPECIAL “MORAL MONOMANIAS.” 
[§ 567 
person of one who on every ground, not only of justice but 
of common humanity, ought to he spared. The issue of the 
former trial seems, then, as intimated, to hold to that of the 
latter, the relations of cause to effect; and I think the experi- 
ence of medical gentlemen who have often been called as 
witnesses will corroborate .the statement, that even the attempt 
to prove a party irresponsible in an improper case increases 
the chance of conviction in a subsequent trial where the indi- 
vidual is truly insane. Thus are they who suffer under the 
most afflictive dispensation of Providence injured by the in- 
discriminate reception of this plea.” 
“ Madmen,’’ says Mr. Stephen, in his authoritative work on 
English Criminal Law^p1) “in the present day are treated with 
a degree of humanity and intrusted with an amount of freedom 
which were formerly quite unknown. * * Suppose they all 
know that any one of them might murder, ravish, or mutilate 
any other without the fear of punishment, the result would 
be that their liberty would have to be greatly restrained, and 
that they would have to be treated on the footing, not of moral 
agents to be governed by law, but of animals to be governed by force” 
(b1) Special “moral monomanias.” 
(a2) At present repudiated. 
§ 567. “Moral insanity,” as has just been seen, rests on the 
general assumption that the moral and the mental functions 
occupy separate and detached compartments, so that one can be 
insane without in any way affecting the other. The doctrine of 
special “ moral monomanias” assumes a still further subdivision. 
Each particular moral instinct has its own subchamber, in 
which it dwells in like seclusion, so that insanity on its part 
not only does not affect the mental properties, but is not neces- 
sarily communicated to its own fellow instincts and affections. 
A man may thus have an insane and irresistible propensity 
to kill or to steal, and for which he is irresponsible, though 
not merely his mind as a whole, but his remaining moral 
functions, are sane. 
(p1) London, 1863, p. 96. 
551 §570] 
SPECIAL “MORAL MONOMANIAS:” 
[book i. 
§ 568. We have already noticed the conclusive psychological 
objections which apply to the “ compartment” theory, so far 
as it assumes that the moral system can become insane while 
the mental is sane, and we have shown that the great weight 
of present medico-psychological authority is against this as- 
sumption. Of course, all reasoning against the general sepa- 
ration of “ moral and mental” insanity, applies a fortiori to 
the assumption that each particular “ moral mania” dwells in 
non-contagious isolation in its own particular cell. One or 
two authorities, however, bearing on this particular point may 
now be added:— 
§ 569. Ideler, a very eminent and experienced psychological 
thus emphatically speaks: “ How can we pretend 
to separate the orbit of particular fixed ideas (or monomanias) 
from the entire sphere of mental action, in such a way as to 
decide whether the origin of an unlawful purpose is within or 
without such orbit? Practically it is impossible for us to 
separate the diseased from the healthy portions of the mind, 
so that the diseased should be punished, and the healthy 
declared irresponsible.” 
§ 570. Dr. Krafft-Ebing, whose eminence as an observer has 
been noticed, in HoltzendorfPs Encyclopedia (1871), a work of 
the highest juridical authority, under the title Wahnsinn(r) 
speaks as follows: “ As part symptoms of general psychical 
disease, we may undoubtedly class morbid impulses to kill, 
steal, etc. These have been erroneously called monomanias, 
and the general condition of disease has been by this process 
ignored. The doctrine of monomania is to-day rightly abandoned. 
It is based on the erroneous assumption that the psychical faculties 
are separate from each other, and cay able of isolated action.(s) 
(q) Lelirbuck, p. 254. 
(?•) See infra, § 608. 
(s) It is true that this distinguished observer afterwards speaks of the ex- 
istence of a state which he thinks proper to call the “ English moral insanity 
but it will be seen at once that the “ moral insanity he thus recognizes is very 
far from being the mania sine delirio of Pinel, or the insanity of irresistible 
impulse of later writers. For he gives, as its German rendering, “Sittlicher 
Blodsinn,” or moral idiocy ; and he enumerates, as its positive features, 
‘•comparative imbecility, with an entire absence of all moral and iudicial 
552 BOOK I.] 
ABSURDITY OF CLASSIFICATION. 
[§ 572 
§ 571. To the same conclusions Casper, Griesinger, and 
Liman, in the works already quoted, add their high authority. 
Indeed, as has been incidentally shown, and will presently be 
seen more fully, the doctrine of “ moral monomania” is now 
left with scarcely a single authoritative adherent either in 
Germany, England, or France. 
(Jj1) Psychological absurdity of classification. 
§ 572. In addition to the general objections already adduced 
to the doctrine of exclusively moral insanity, we may here 
naturally notice, when we are asked to enter on a still more 
minute division, how extraordinarily vague and fluctuating is 
the analysis which this new process involves. In the first 
place it takes, as the basis of analysis, not the subject, which is 
the individual man, but the objects, e. g. houses to be burned, 
goods to be stolen, other men to be killed, to which the indi- 
vidual man, in this relation, may address himself. It is as if, 
when we were analyzing steam, we should speak of it under 
one name, and as possessing distinct properties, when it propels 
a boat, and under another name, and possessing other pro- 
perties, when it propels a locomotive. If such a course should 
be taken, we would no doubt have a hundred different kinds 
of steam to talk about, and the dissimilarity of these various 
distinct powers might be the subjects of much subtle discri- 
mination. But such a discussion would mislead us from the 
true issue. It would divert us from analyzing the properties 
of steam itself, which are invariable, no matter what may be 
the objects to which it may be turned, to investigating what 
are its special accidents, and to investing these accidents with 
a false autonomy. So it has been with the doctrine of moral 
monomania. The subject of the monomania is the monomaniac 
himself. “ Is he insane?” This is a question for psychological 
and medical investigation. The object, the end to which this 
alleged insanity directs itself, is a matter for exclusively legal 
feelings, a complete depravation of character with criminal immoral impulses 
and activities, which can easily be confounded with immorality, from which, 
however, they are distinguished by their causes, their mode of growth, their 
progressive course, and the periodicity of certain symptoms 
553 § 573] 
SPECIAL “MORAL MONOMANIAS:” 
[book i. 
examination. “ Did lie do this tiling ?” “ If so, supposing 
him to be sane, what is the punishment ?” To decide this is 
the exclusive function of the courts of law. 
§ 573. We have a right, also, to ask, when the “ compart- 
ment” theory of monomanias is proposed to us, that the com- 
partments in which these distinct functions dwell in such 
isolation that one may be insane without in any way affecting 
the others—that these compartments should be proved to be 
stable, fixed, and permanent. Instead of this, we find that 
they vary according to the views of each theorist. Pinel 
began by having a single insane chamber, and in this chamber, 
so well guarded that the inmates could not escape to disturb 
the “ mind,” dwelt what he called “ mania sine delirio.” Es- 
quirol, improving on his master, declared that there existed, in 
like isolation, a umanie instinctive,” which, issuing from its 
own separate apartment, could go forth, commit depredations 
on the outside world, and then furtively return, without in 
the least degree disturbing the equanimity, awakening the re- 
pugnance, or even exciting the attention of the mind’s other 
inmates, which went on in their normal work with clearness 
and logical cohesion, not even taking notice of the extraordi- 
nary neighbor who was dwelling under their common roof. 
But French passion for classification could not be content with 
this. It was soon argued that every wrong that can be per- 
petrated must have its own particular wrong-doer, and that 
this wrong-doer should have his particular exclusive and de- 
tached abode. It was at first thought that it be enough if 
there were separate apartments of this kind for certain general 
criminal propensities; and these were introduced to us under 
the titles of Kleptomania, Homicidal mania, Aidoiomania, 
Pyromania, etc. But it was soon found that this classifica- 
tion was not enough. If each criminal act requires a distinct 
particular propensity, or “ manie instinctive,” and if each of 
these propensities is to be a separate factor, capable of exe- 
cuting its work without either implicating the mind as a 
whole, or even disturbing its fellow propensities, then the old 
theory of cerebral architecture must be declared imperfect, and 
we must be informed of a new plan, containing a largely in- 
creased number of separate chambers in which these insane 
554 BOOK I.] 
ABSURDITY OF CLASSIFICATION. 
[§573 
factors (instincts maladifs) may abide in the requisite isolation. 
This was accordingly done, and as new crimes started up new 
“ monomanias” were recognized and duly assigned to separate 
abodes. Thus the Marquise de Brinvilliers, feeling an irre- 
sistible instinct to poison, and yet being admitted to be en- 
tirely sane, gave rise to a new “manie instinctive,” called 
Toxicomanie, and which was announced not only to coexist 
with mental sanity, but with morality and amiability in every- 
thing except poisoning. 
So, also, about the time when among French alienists the 
fashion of setting apart new varieties of monomanias was 
at the highest, arose the Piqueurs, who ranged the streets 
of Paris, cutting the clothes of women and inflicting other 
injuries; and forthwith this epidemic mischief was declared 
a “monomania.” The “Piqueurs” were imitated by the 
“ Maedchenschanders” of Augsburg, who, in 1820 and after- 
wards, infested the streets of that town, and would rush out 
from their lurking places, inflict a slight stab on young 
girls with some sharp instrument, and then There 
is reason to believe that the chief offender in the latter per- 
formances was really insane; and such certainly was the case 
with the perpetrator of analogous outrages which some years 
since were committed in Yew York.(w) This can hardly,how- 
(t) See infra, § 621. 
(«) The case referred to is that of a young man, named Charles H. Sprague, 
■who was tried in King’s County, New York, in October, 1849. He was 
shown to have left his house immediately after breakfast to go to his business, 
which was that of a printer ; to have overtaken a young lady, to have thrown 
her down, to have snatched a shoe from one of her feet, and to have run 
away. She wore a chain and locket and other jewelry in sight; hut he did 
not attempt to take anything except the shoe, nor to do violence to her per- 
son in any wajr. He then proceeded round a square, and on his way called 
at his wife’s father’s, and asked if his father was in town, a matter as to 
which he was perfectly well informed. He then left the house, came directly 
back to the very spot where he had just taken the shoe, and continued on, 
without stopping, to his place of business. He was tried for highway rob- 
bery, and on trial the defence of insanity was set up. “ The principal wit- 
ness was the defendant’s father, a clergyman of the highest respectability, 
whose testimony was corroborated in every particular by several other wit- 
nesses ; indeed, by all the court thought it worth while to have brought for- 
ward. Charles Sprague's paternal great-grandfather, grandmother, great- 
uncle, and three great-aunts—being four out of a family of six—and a cousin, 
555 556 
SPECIAL “MORAL MONOMANIAS’.” 
[book I. 
ever, be said of the “ Zopfabschneiders” of 1858, who, in some 
of the towns of South Germany, amused themselves by darting 
out in the dark on women who wore the long tresses of hair then 
in fashion, and cutting off and pocketing these tresses. These 
propensities were epidemic, and were declared by the perpe- 
trators to be beyond repression when the fancy came on. It 
was soon, it is true, found that a little cudgelling caused the 
“ propensity” to subside. It did not subside, however, until it 
had for a while been enfranchised as a “ monomania,” to the 
great disturbance of public decency and public peace. 
§ 574. So, also, the disinclination felt by intelligent but de- 
praved Frenchwomen to rear children—the “ instinct” which 
leads them to destroy such children, has, even by so acute a 
are or hare been insane. lie had himself in youth received several severe blows 
and falls upon the head, and within a year from the last fall he began to suffer 
headache, and his friends observed an unnatural prominence of the eyes, with 
varying dulness and glassiness of these organs. Simultaneously with this, 
Sprague began to exhibit a propensity to abstract and conceal the shoes of 
the female members of his family. In the majority of instances one shoe 
only was missed, and it was usually found about the house, having been 
thoroughly soaked with water, twisted up like a rope, and then hid away be- 
tween a feather and straw bed, or in the depths of a trunk, or hung up in a 
closet with garments concealing it. 
“ Suspicion at first rested upon the servants, but the real agent, being de- 
tected and questioned, remained silent, and on subsequent explanations gene- 
rally denied the possibility of his agency until within the last six years. 
During this period, when remonstrated with on his singular habit, he would 
admit that he must have taken the shoe, though he had no recollection of it, 
and did not know for what he wanted it. The intermissions in this practice 
have at no time exceeded three or four months at one time. 
“ After the practice became established, Sprague’s mother and sisters, and 
the female servants, habitually locked up their shoes ; yet occasionally one 
was missed, and discovered twisted and crumpled after being wet. It was 
rumored at one time in the family that Sprague had attempted to remove the 
shoe from the foot of a domestic, and his sister once alarmed her father at 
night on finding him abstracting her shoes from a locked drawer. In the 
early part of the year of the trial, two females, one residing in Brooktyn, 
had a shoe or shoes taken from their feet while walking in the street in the 
evening, but the offender has never been certainly known.”—(1 Beck. Med. 
Journ., ed. of 1860, p. 732.) There was no monomania about this case. It 
was general insanity manifesting itself, among other ways, in this particular 
caprice. And the only proper discipline for such case, if general insanity 
existed, was that compulsory seclusion from society which general insanity 
requires. 
556 BOOK I.] 
ABSURDITY OF CLASSIFICATION. 
[§574 
physician as Boileau cle Castelnau,(V) been set apart, under 
the title of Misojpedie, as a distinct mania, capable, like other 
manias, of doing its work without implicating or embarrassing 
the mother herself, who is only an innocent victim of this 
mania, being in all other respects “ amiable” and “ sane.” Nor 
does the process stop here. If the theory be right, there must 
be a constant readjustment cf the cerebral system, so as to let 
in new duly authenticated and verified “ monomanias.” But 
if such readjustment be absurd, then the theory falls. 
So the same destructive argument may be drawn from the 
inexhaustive capriciousness of the classifications which have 
been given by philosophers of this school. If we are to have a 
classification at all, we have a right to demand that it should 
be complete. Nor, we may well add, if each passion is to have 
an exclusive compartment to itself, in which it may become 
insane without affecting its neighbors, can we conceive why 
such an accommodation is refused to gluttony. Gluttony is 
as wide spread and eager a passion as are any of those which 
have been elevated to the rank of monomanias. The history 
of all nations, the rudest as well as the most cultivated, records 
its prowess. The African kings, described to us by Speke, 
who gorged to such an extent that they finally became too 
gross to move, are not more conspicuous illustrations of the 
powers of gluttony than was Cambac5r6s, who spent half his 
life at the dinner table, and made the dinner table the supreme 
end of the state. Domitian, when Rome was needing the full 
wisdom and energy of her sons, convoked the Senate to deter- 
mine how a turbot was to be cooked:— 
“ But when was joy unmixed ? no pot is found 
Capacious of the turbot’s ample round : 
In this distress he calls the chiefs of state, 
At once the objects of his scorn and hate”— 
“ The Emperor now the important question put, 
How say ye, Fathers, shall the fish be cut ?” 
Charles V. was in most respects a great contrast to Domitian. 
He was wise, tolerant, laborious, and inured to hardships when 
great public ends were to be achieved. Yet Charles V., in his 
(v) Annales medico-psyehologiques, 1861, rii. p. 553. 
557 § 575] 
SPECIAL “MORAL MONOMANIAS:” 
[BOOK I. 
retirement, would push aside the couriers who came to him 
from his son entreating advice, in order to consult with those 
who were to bring delicacies to the table; and shortened his 
life because, in defiance of his physician’s advice, he would not 
shorten his meals. “ A very considerable percentage of the 
miseries of mankind,” says a late (1871) ingenious writer,(w) 
“ may be said to spring from this source alone. Peevishness, 
ill-humor, domestic breezes, hypochondria, ghost-seeing, me- 
lancholy, suicide itself, with many other evils, may often be 
traced to the poor digestive sac, when wearied and insulted by 
the hard work to which it is condemned.” Perhaps the 
reason why gluttony has not been spoken of as irresistible, and 
assigned to a place among the monomanias, is the varieties it 
assumes, and the consequent necessity of further subdivision. 
“Dipsomania” may be called a kind of gluttony, and if so 
would have to be deposed from its place as a monomania in 
chief. "With it, but with separate compartments, would have 
to be ranked the passion for opium, and, if recent statements 
are to be relied on, the passion for chloroform. Nor could we 
admit these without assigning distinct phases to passions for 
distinct articles of food. 
§ 575. A still more striking illustration of the inadequate- 
ness of this classification is to be found in its omission, among 
the alleged irresistible impulses, of that for gaming. Certainly 
if “ pyromania,” an impulse which at the best is occasional and 
rare, is to be recognized as a distinct insanity, requiring a dis- 
tinct mental compartment, at least equal distinction should be 
assigned to the passion for gaming, a passion far more widely 
spread, and at least equally irresistible. Very lately (1872) 
Ave have had brought before us the case of an eminent French 
statesman, who has sacrificed everything to this passion, and 
now is the wrecked and apparently irreclaimable attendant on 
the worst German hells. Mr. Fox, as remarkable for strong 
sense as he was for argumentative vigor, squandered, early in 
life, £154,000 left him by his father, on the gaming table, 
which he did not desert until his life was nearly spent; and 
such was his infatuation, that he gave up whist, in which 
558 
(w) Hargreaves, Blunders of Vice and Folly, p. 24. BOOK I.] 
ABSURDITY OF CLASSIFICATION. 
[§ 575 
his skill made him a winner in the long run, for hazard, in 
which he knew that in the long run he must lose. Sir John 
Bland and Lord Mountford, as Horace Walpole tells us, dis- 
sipated in gaming their entire estates, and then committed 
suicide. The Marquis of Drogheda “ ruined himself over and 
over again, till he was obliged to live on a small annuity paid 
quarterly. As soon as he received his money he lost it at the 
gaming table, and afterwards had to live in the greatest pri- 
vation till quarter-day came again, when the allowance was 
dissipated in the same way.” “ A certain Captain H , after 
losing a considerable sum, would walk up to a mirror, and 
begin a stormy colloquy with his image. The substance re- 
minded the shadow of the resolutions he had made; he showered 
down abusive epithets upon himself, and became so excited 
that he would assume a menacing attitude and appear as if he 
were about to inflict chastisement upon the unfortunate reflec- 
tion. This was done in a public saloon, and in the presence of 
a large company.” “ Sometimes the foolery of the gamester 
rises to a height which seems to be positively preternatural. 
There was once a person of the name of Shelton, of some note 
as a pugilist in his day, who indulged in betting at pitch and 
toss to such an extent, that one day, having lost all his earthly 
goods, he went on to stake his very life. He lost: will it be 
believed that the man cheerfully proceeded to a lamp post and 
hung himself to the projecting bar?”(;c) Cases of this cha- 
racter are not rare. Among civilized nations—putting aside, 
for the present, barbarous lands in which gaming often exer- 
cises an influence equally potent—we may assume that there 
are a thousand gambling houses, each with its body of fre- 
quenters, numbering from fifty to a hundred. We may take 
as favorable illustrations those at Ems and Homburg, where 
strict police regulations, and social restraint generated by 
the comparatively high position of the participants, maintain 
a superficial decorum. Yet, even under this mask, no one 
can visit these tables, without seeing that the habitual game- 
sters who frequent them form a distinct as well as a numerous 
class of men, far more numerous than “ kleptomaniacs” or 
(x) Hargreaves, Blunders of Vice and Folly, London, 1871, p. 47. 
559 § 576] 
SPECIAL “MORAL MONOMANIAS.” 
[book i. 
“ pyromaniacs,” and that they are driven from risk to risk by a 
frenzy which has at least as high claims to he considered irre- 
sistible as any which modern psychology has brought to light. 
They know that gaming in the long run will ruin them. They 
feel that the very process is consuming them by its fires, yet 
they persevere till ruin comes, and then give themselves up to 
the pauper’s misery, or the suicide’s grave—why then is not 
the morbid passion for gaming announced as a “monomania?” 
What is there in it less vehement, less general, less marked, 
than the other “ monomanias” which have hereafter to be 
noticed? 
§ 576. If this classification is minute enough to give us 
“ Toxicomanie” and “ Misopedie,” and to embrace “ Piquers” 
and “ Msedchenschanders,” why does it find no place for glut- 
tony and gaming? If it has no place for gluttony and gaming, 
what right has it to demand the recognition, as “monomanias,” 
of other passions, certainly not more normal, or more pregnant 
with what are called “ monomaniac” characteristics ? And if the 
classification this theory presents be thus fluctuating and de- 
fective, what claims has the theory to judicial recognition? 
It may, indeed, scarcely need so copious a recapitulation as 
the above to show that the theory of special “moral mono- 
manias” is not only unphilosophical but impracticable. But 
in view of the persistency with which this view is still pressed 
on the courts, it is important to show that, even if the position 
is true as theory, it is false in practice. And then, if it appear 
that even in the most comprehensive classifications, there 
remain a number of passions and impulses without their ne- 
cessary exclusive abodes; if it also appear that these abodes, 
even when designated, instead of having permanent inmates, 
are occupied capriciously by a series of visitors, appearing from 
time to time with new names and new attributes—this throws 
just discredit on the theory as a theory. If we can establish 
the entire isolation of the instincts in question, then we can 
conceive of one being insane without affecting the other. But 
when we find, that, so far from such isolation being established, 
these instincts cannot even be separately numbered, then their 
separate existence, and consequently their capacity for separate 
insanity, must be regarded as unproved. 
560 BOOK I.] 
“ HOMICIDAL MONOMANIA.” 
[§ 578 
§ 577. It remains to notice the more prominent forms of 
supposed monomania. They will be grouped under the follow- 
ing heads, not because they have any psychological basis as 
distinct manias, but simply because, as incidents of general 
insanity, it is convenient to view them in this order. 
(c2) “ Homicidal mania" (morbid propensity to kill). 
(d2) “ Kleptomania" (morbid propensity to steal). 
(e2) “ Pyromania" (morbid incendiary propensity). 
(/2) “ Erotomania" (morbid sexual propensity). 
(<72) ‘‘ Pseudonomania'’ (morbid lying propensity). 
(7i2) “ Oikeiomania" (morbid state of domestic affections). 
( i*) “ Suicidal mania" (morbid propensity to self-destruction). 
(j2) “ Dipsomania" (morbid propensity for drink). 
(A;2) “ Fanatico-mania" (morbid state of the religious feelings). 
( l2) “ Politico-mania" (morbid state of political feeling). 
(c2) § 578. u Homicidal monomania”(y) is not to be confounded, 
according to Marc, with the sudden murderous impulse with 
which madmen are occasionally seized under the influence of 
revenge, or of some other passion which controls them; and it 
is, in like manner, important to distinguish it from delirium. 
Esquirol understands the term to mean a partial insanity, dis- 
tinguished by more or less violent cravings of a murderous 
nature ; and subdivides it into— 
a. Cases in which the murder is caused by a firm but insane 
conviction—the monomaniac being carried away by an avowed 
but irrational motive, and always manifesting conclusive signs 
of a partial insanity of the understanding or the feelings. 
b. Cases in which the monomaniac displays no perceptible 
disturbance of the understanding or the feelings, but is carried 
away by a blind instinct, by an inexplicable something, which 
impels him to the commission of murder. As, however, is 
very pertinently remarked by Sehiirmayer, the distinctions 
and definitions of Marc and Esquirol do not advance us in the 
field of forensic psychology a single step beyond what we had 
already reached by means of the physiology of insanity in 
Siebold’s Gericlit. Med. § 219; Iloffbaur’s Psycliologie, § 122; Con- 
radi’s Commentatio der mania sine delirio, Gott. 1827, 4; Conradi’s Beitrag 
zur Gescbicbte der Manie sine delirio, Gott. 1885 ; Artikel Mania sine delirio, 
in Jesse’s Encyclop. Worterb. der Med. Wissench. Bd. 22. Berlin, 1840, p, 
410. 
vol. i.—36 
561 § 579] 
MENTAL UNSOUNDNESS. 
[book i. 
general; while their assumed homicidal monomania falls, on 
the one hand, into the well-known rank of mania, and is easily 
recognized and considered as one of its accidental manifesta- 
tions, or, on the other hand, drawTs into the circle of its defini- 
tion every murder of which the author is in a condition to 
assert, that he was compelled to commit it by an impulse 
which he found to actuate him.(z) 
§ 579. Dr. Ray, among all Anglo-American authorities, 
gives this species of mania the widest sweep. “ It was first 
distinctly described by Pinel,” he says, “ and, though its exist- 
ence as a distinct form of monomania was for a long time after 
doubted, it has subsequently been admitted by the principal 
writers on insanity—by Gall and Spurzheim, Esquirol, Georget, 
Marc, Andral, Orfila, and Broussais, in France; by Connelly, 
Combe, and Prichard, in England; by Hoffbauer, Platner, 
Ettmuller, Henke, and Friedreich, in Germany; by Otto, of 
Copenhagen; and by Rush, in this country. It has received 
the various appellations of monomanie homicide, rnonomanie 
meurtrilre, melancholie homicide, homicidal insanity, instinctive 
monomania. Esquirol, in his valuable memoir, first published 
in the shape of a note in the French translation of Hoffbauer’s 
work, observes, that homicidal insanity, or monomanie homicide, 
as he terms it, presents two distinct forms, in one of which the 
monomaniac is always influenced by avowed motives more or 
less irrational, and is generally regarded as mad; in the other, 
there are no motives acknowledged, nor to be discerned, the 
individual being impelled by a blind, irresistible impulse. It 
is with the latter only we are concerned, for the other is clearly 
a form of partial intellectual mania; but as this division lias 
not been strictly made by nature, cases often occurring that do 
not clearly come under either category, the subject will be 
(z) See supra, §§ 146-162, 163-189. See an interesting treatise by Dr. 
Woodward, 1 Am. Journ. of Ins. 322. See also People v. Kleim, reported 2 
Am. Journ. of Insan. 245 ; Abner Baker’s Case Reviewed, 3 ibid. 26 ; Trial 
of Rabello, reported, ibid. 41 ; an Essay, by Dr. Aubanel, on the same point, 
ibid. 107 ; Report of Trial of People v. Griffin, ibid. 227; People v. Sprague, 
6 ibid. 254 ; Com. v. Furbush, 9 ibid. 151. For an interesting though desul- 
tory sketch of the law, see Mr. Warren’s Remarks on Oxford’s and McNaugli- 
ten’s cases, 7 Am. Journ. of Ins. 318 ; Black. Mag. for Nov. 1850. 
562 BOOK I.] 
“homicidal monomania.” 
[§ 580 
better elucidated by noticing all the forms of this affection, 
and seeing how intimately they are connected together.” 
§ 580. The same distinguished authority suggests the fol- 
lowing tests:— 
I. In nearly all, the criminal act has been preceded, either 
by some well-marked disturbance of the health, originating in 
the head, digestive system, or uterus, or by an irritable, gloomy, 
dejected, or melancholy state; in short, by many of the symp- 
toms of the incubation of mania. The absence of particulars 
in some of the cases we find recorded, leaves us in doubt how 
general this change really is; but a careful examination would, 
no doubt, often, if not always, show its existence where, appa- 
rently, it has never taken place. 
II. The impulse to destroy is powerfully excited by the 
sight of murderous weapons, by favorable opportunities of ac- 
complishing the act, by contradiction, disgust, or some other 
equally trivial and even imaginary circumstance. 
III. The victims of the homicidal monomaniac are mostly 
either entirely unknown or indifferent to him, or they are 
among his most loved and cherished objects; and it is remark- 
able how often they are children, and, especially so, his own 
offspring. 
IY. While the greater number deplore the terrible propen- 
sity by which they are controlled, and beg to be subjected to 
restraint, a few diligently conceal it, or, if they avow it, declare 
their murderous designs, and form divers schemes for putting 
them in execution, testifying no sentiment of remorse or grief. 
Y. The most of them, having gratified their propensity to 
kill, voluntarily confess the act, and quietly give themselves 
up to the proper authorities; a very few only—and these, to 
an intelligent observer, show the strongest indications of in- 
sanity—fly, and persist in denying the act. 
YI. While the criminal act itself is, in some instances, the 
only indication of insanity—the individual appearing rational, 
as far as can be learned, both before and after the act—in 
others, it is followed or preceded, or both, by strange behavior, 
if not open and decided insanity. 
YII. Some plead insanity in defence of their conduct, or an 
entire ignorance of what they did ; others deny that they labor 
563 § 581] 
MENTAL UNSOUNDNESS. 
[book i. 
under any such condition, and, at most, acknowledge only a 
perturbation of mind. 
The following are the indicia given by Taylor:— 
1. The acts of homicide have generally been preceded by 
other striking 'peculiarities of conduct in the individual, often by 
a total change of character. 
2. They have in many instances, previously or subsequently, 
attempted suicide—they have expressed a wish to die or to be 
executed as criminals. 
§ 581. As an illustration of the erroneous induction on 
which the doctrine of monomania rests, may be mentioned 
the case of a man lately (1869) tried for a murder in Alton, 
England. He had enticed a little girl into a garden, where 
he at once killed her, cut her in pieces, scattering the frag- 
ments in different places, washed his hands publicly by the 
roadside; went quietly home, when he wrote in his journal, 
“ killed a little girl; it was fine and hotand then confessed 
to the officers who apprehended him what he had done, giving 
no reason, and speaking of it as an indifferent event .(a) How 
the very essence of homicidal mania, as insanity exclusively 
moral, is that the reason is supposed to be intact. But how 
was it in this case ? (1) The defendant exposed himself, un- 
necessarily, without motive, without precaution as to conceal- 
ment, to the most terrible punishment the law can inflict. (2) 
He viewed an act which to the eye of reason would be the 
most tragic and revolting, with as much indifference as he 
would pulling up a plant or killing a fly. (3) It was in evi- 
dence that his father had labored under acute mania; that one 
of his near relatives was at the time confined as a lunatic; and 
that he himself had been so peculiar and liable to depression 
that he had been from time to time watched to keep him from 
suicide. Under such circumstances it is scarcely accurate for 
Hr. Maudsley to say that “he was not insane in the legal or 
the ordinary sense of the term,” and to treat the case as sup- 
porting the theory of homicidal mania, as distinguished from 
legal insanity. On the facts above stated, if there were no 
countervailing evidence, neither judge nor psychologist would 
(a) See Maudsley’s Body and Mind, p. 71. 
564 BOOK I.] 
“ HOMICIDAL MONOMANIA.” 
[§583 
pronounce the patient to have been possessed, at the time of 
the act, of right reason. 
§ 582. To the same effect is a case which occurred in New 
England, in 1868, which has also been claimed to prove dis- 
tinctive moral insanity. A gentleman of the greatest amia- 
bility and the tenderest family affections, after having labored 
for several days under depression, arose from his bed about mid- 
night, killed one of his children with a razor, and was attacking 
another, when he was arrested by his wife. He fled trembling 
and almost naked into the road ; and was discovered early the 
next morning, conscious of the terrible nature of his act; con- 
scious that it was a crime against the law as well as a terrible 
grief to himself; but believing it was necessary to rescue from 
great undefined calamity the very children whom he had 
attacked. Certainly there was here a turmoil and frenzy of 
the reasoning powers more signal as well as more awful than 
that of the fatuous idiocy which is incapable of determining 
right from wrong. Nor was the moral sense destroyed or per- 
ceptibly deranged, for there was the acutest anguish exhibited, 
and the keenest perception of the enormity of the act. But 
there was such a wreck of the reasoning powers that the act, 
fearful and hateful as it was, appeared to the perpetrator 
necessary. It was a case of acute hypochondria involving 
derangement of the mind.(b) 
§ 583. Dr. Maudsley, while maintaining the distinctiveness 
of this phase of insanity, attributes it, not to insulated moral 
derangement, but to neuropathic disease. “ Those who have 
practical experience of insanity,(c) know well that there is a 
most distressing form of the disease, in which a desperate im- 
pulse to commit suicide or homicide overpowers and takes 
prisoner the reason. The terrible impulse is deplored some- 
times by him who suffers from it as deeply as by any one who 
witnesses it; it causes him unspeakable distress ; he is fully 
conscious of its nature, and struggles in vain against it; his 
(5) See supra, §§ 155, 529 ; infra, § 636 ; and cases in Appendix, §§ 837, 
839, 842. 
(c) Body and Mind, an Inquiry into tlieir Mutual Connection, etc., being 
the Gulstonian Lectures for 1870, by Henry Maudsley, M.D. London, 1870, 
p. 73. 
565 § 584] 
MENTAL UNSOUNDNESS. 
[book i. 
reason is no further affected than in having lost power to con- 
trol, or having become the slave of the morbid and convulsive 
impulse. It may he that this form of derangement does some- 
times occur when there is no hereditary predisposition to 
insanity, but there is no doubt that in the great majority of cases 
there is such a neuropathic state. The impulse is truly a con- 
vulsive idea, springing from a morbid condition of nerve element, 
and it is strictly comparable with an epileptic convulsion. How 
grossly unjust, then, the judicial criterion of responsibility 
which dooms an insane person of this class to death if he knew 
what he was doing when he committed a murder! It were 
as reasonable to hang a man for not stopping by an act of will 
a convulsion of which he was conscious. An interesting cir- 
cumstance in connection with this morbid impulse is that its 
convulsive activity is sometimes preceded by a feeling very like the 
aura epileptica, a strange morbid sensation, beginning in some part 
of the body, and rising gradually to the brain. The patient may 
accordingly give warning of the impending attack in some 
instances, and in one case was calmed by having his thumbs 
loosely tied together by a ribbon when the forewarning oc- 
curred. Dr. Skae records an instructive example in one of 
his annual reports. The feeling began at the toes, rose gra- 
dually to the chest, producing a sense of faintness and con- 
striction, and then to the head, producing a momentary loss of 
consciousness. This aura was accompanied by an involuntary 
jerking, first of the legs and then of the arms. It was when these 
attacks came on that the patient felt impelled to commit some act of 
violence against himself or others. On one occasion he attempted 
to commit suicide by throwing himself into the water; more 
often the impulse was to attack others. He deplored his con- 
dition, of which he spoke with great intelligence, giving all 
the details of his past history and feelings. In other cases, a 
feeling of vertigo, a trembling, and a vague dread of something 
fearful about to happen, resembling the vertigo and momentary 
vague despair of one variety of the epileptic aura, precede the 
attack.” 
§ 584. When the cases sketched by Dr. Maudsley, however, 
are examined, it will be seen that they present certain positive 
features which distinguish them from insanity which is de- 
566 BOOK I.] 
“ HOMICIDAL MONOMANIA.” 
[§ 585 
scribed as exclusively “moral,” and which the courts have 
declined to recognize. Dr. Maudsley tells us (1) that the 
patient in such cases, is in a “ neuropathic state,” which is a 
state of positive physical disease; (2) that this state “ is strictly 
comparable with an epileptic convulsion;” (3) that it is some- 
times preceded by a feeling “ very like the aura epileptica ; and 
(4) that it is often the result of hereditary insanity.” jSTow 
the act, alleged to be criminal, may be viewed as without a 
cause, or as being caused by an intelligent volition; or as 
being caused by material and physical If the 
latter be proved to exist, whether the compulsion was internal 
or external, the actor is not morally responsible. Disease, 
especially convulsive disease, may be such compulsion; but, if 
so, it must be affirmatively proved. The tests propounded by 
Dr. Maudsley go far to constitute such proof. Of course, when 
a man is put on trial for a criminal act, the presumption is 
that he committed such act voluntarily. But this presumption 
may be overcome, and physical coercion shown, by proof such 
as that which Dr. Maudsley suggests, coupled, when it can be, 
by evidence of the unnaturalness and motivelessness of the act. 
§ 585. In Sir Henry Holland’s“ Recollections,”(e) the follow- 
ing anecdote is given : “ In 1825, as I think, when he (Canning) 
was Foreign Secretary and living at Gloucester Lodge, I was 
one morning called in haste to see a patient at Brompton. 
Scarcely had I entered the room of this gentleman (for such 
he was, and had filled a diplomatic office of some consideration) 
when he eagerly besought me to protect him against himself. 
He told me that a propensity to kill Mr. Canning had come 
upon him suddenly, and so strongly, that he had taken these 
rooms at Brompton to be in the way of satisfying the impulse. 
But against this insane will (induced by some supposed official 
injustice) a sounder feeling was struggling within him, and for 
the moment gained mastery enough to lead him to seek for instant 
restraint. I, of course, lost no time in providing it; warning 
(d) See supra, §§ 146-162. 
(<?) Recollections of Past Life. By Sir Henry Holland, Bart., M.D., 
F.R.S., D.C.L., etc. etc., President of tlie Royal Institution of Great Britain, 
Physician in Ordinary to the Queen. London : Longmans and Co., 1872. 
567 568 
MENTAL UNSOUNDNESS. 
[book I. 
Mr. Canning meanwhile to return to Gloucester Lodge by a 
different road. These strange cases of what may he called 
duplicity of the will are not rare in the long catalogue of mental 
infirmities. In lighter and less critical form such incongruities 
enter into the most familiar moods of character and acts of life ; 
hut even here they need, to he self-recognized and resisted, to prevent 
their gaining mastery over the mind. The consistent and firm 
command over the will ranks amongst the higher attainments of man.” 
In this case we have two distinct factors which are among 
the most constant incidents of criminal responsibility: (1) the 
motive of malice, i. e., revenge for “some supposed official in- 
justice;” (2) the capacity of mastering this feeling, so as to 
prevent it from taking effect in an overt act. Of course, if in 
such a case the mind becomes insane and reason is dethroned, 
and if when in such a state the homicidal impulse becomes 
irresistible, then, according to the rules laid down in prior 
sections//) a legal defence is made out. But all this is in 
subordination to the principle stated by Sir II. Holland, that 
these “ propensities” must be “ self-recognized and resisted to 
prevent their gaining mastery over the mind.” To declare 
that.they constitute irresponsibility, and that they are in the 
eye of the law irresistible, is for the law to abdicate one of its 
highest offices, that of educating men to resist such passions 
before they reach such a height as to be really irresistible//) 
§ 586. To recur to the classification foreshadowed by Sir W. 
Hamilton, and expressed by Mr. Bain/A) the mind may be 
viewed as combining three distinct but mutually dependent 
factors—feeling, will or volition, and thought or intellect. 
Disease either of feeling or thought is a disease of the mind 
as an entirety. Thus if feeling be in such a diseased state as 
to generate delusions or hallucinations, the conclusions which 
thought draws from such data are insane. So if thought is so 
diseased that the patient, from want of memory or want of 
power of comparison, is incapable of determining the actual 
relation to himself of the instrument by which his feeling is 
(/) Supra, §§ 146-162. (g) See supra, §§ 115, 188, 403. 
(A) See supra, § 307a. 
568 BOOK I.] 
“ HOMICIDAL MONOMANIA.” 
[§ 588 
excited, then the consequent volition is insane. These points 
may be illustrated as follows:— 
§ 587. Anger,(?) as Aristotle points out, is an impulse, arising 
from pain to ourselves, to put somebody else to pain. It is 
universal in the human breast; to invest it with irresponsibility 
would be to confer irresponsibility on all crime. As analyzed by 
Mr. Bain,(/) it contains these ingredients: (1) In a state of 
frenzied excitement, some effect is sought to give vent to the 
activity; (2) The sight of bodily infliction and suffering seems to 
be a mode of sensuous and sensual pleasure ; (3) The pleasure 
of power is pandered to ; (4) There is a satisfaction in prevent- 
ing further pain to ourselves by inducing fear of us, or of 
consequences, in any one manifesting harmful purposes. Of 
these, (1) and (2) may be regarded as the instinctive working 
of anger; the latter as the result of feeling mingled with 
thought. 
Assuming, then, the universality of anger as a human 
emotion, its action, in insanity, is as follows: A blow is received, 
and the sufferer tries to hurt the thing producing the hurt. 
An infant, for instance, strikes in anger the floor on which he 
falls. The imbecile dashes his medicine to the ground. The 
maniac strikes about him in blind frenzy. Here there is no 
criminal responsibility, in the common sense, for the outburst 
of anger; though it is proper that one whose feelings are under 
such slight restraint should be kept under tutelage. 
§ 588. On the other hand, illusions or hallucinations may 
exist, which may, to a patient capable of reasoning correctly, 
make the indulgence in anger seem just. Such a patient, for 
instance, may believe himself in danger of his own life, or 
may conceive that he is a soldier in the heat of battle, or may 
think that the person whom he strikes is a tree or an image. 
In this case, also, there is no criminal responsibility, though 
abundant ground for disciplinary confinement. 
But anger can never be viewed as insanity in such a way 
as to constitute it a defence, unless the intellect be proved to 
be disturbed in the modes above specified. Or, to state the 
(t) See supra, § 418. 
(j) Mental and Moral Science, London, 1868, p. 262. 
569 § 590] 
MENTAL UNSOUNDNESS. 
[book i. 
proposition in other words, anger—or destructive impulse of 
any phase—-cannot, psychologically or ethically, be an excuse 
for crime, as long as reason exists by which it can be con- 
trolled.^) 
§ 589. Viewing the question of “ homicidal insanity,” there- 
fore, on its psychological side, we come then to the conclusion 
that unless the mind be insane, there can be no separate in- 
sanity of the moral system having this distinct type. View- 
ing the question ethically, we must conclude that no such 
alleged impulse should be an excuse for crime while there is 
reason in the offender adapted to the control of the impulse. 
This brings psychological and ethical science in this respect 
in accord with juridical.(Z) At the same time it must never 
be forgotten that there are forms of insanity—e. g. melan- 
cholia—of which the homicidal propensity, especially in the 
killing of children and objects of particular love, is a natu- 
ral outgrowth. How far such substratum of insanity may 
be occult, and how far it may burst out exceptionally as mania 
transitoria, will be considered under other heads.(m) 
(d2) “ Kleptomania”{n) {morbid propensity to steal). 
[For important medico-juridical opinions on cases of alleged “Klep- 
tomania” see Appendices, §§ 843, 844.] 
§ 590. A propensity to steal occurs not unfrequently as a 
symptom in mania, and the mental confusion incidental to it, 
and in depression and delirium. In such cases, the disease is 
readily detected. But where it occurs in cases of concealed 
insanity, its discovery is not easy. From Ellinger(o) we adapt 
the following:— 
1. In the earlier developments of mania, this is an important 
symptom; it will, however, he found accompanied, more or 
less, by other symptoms of incipient derangement, such as 
(k) See supra, §§ 146-162, 188, 403. 
(l) See supra, §§ 146-162, 163-189, 403. 
(to) See infra, §§ 706-710. 
(?i) See Med. Leg. M. Orfila, tome i. p. 364, Paris, 1848 ; Etudes Cliniques 
des Maladies Mentales, M. Morel, tome i. p. 319, Paris, 1854. 
(o) I. a. W. P. 159. 
570 BOOK I.] 
“ KLEPTOMANIA.” 
[§ 591 
a general alteration in the accustomed mode of feeling, think- 
ing, occupation, and life of the individual, a disposition to 
scold, dispute, and quarrel, to drink, and to wander about 
busily doing nothing, and the bodily signs of excitement 
(restlessness, want of sleep, rapid pulse, etc.) 
2. The abnormal tendency continues after the disease, to all 
external appearance, has ceased. This continuance, however, 
shows that mental disease, though latent, still exists. (This 
calls for a continued course of observation by the examining 
physician.) 
3. There are distinct but occult hallucinations at work. 
These are to he assumed the more readily, the more bizarre 
and exclusive is the desire to steal, and the more the objects 
to which it is confined are out of proportion to the property 
of the thief; and particular attention should be paid to the 
existence, present or past, of other symptoms of insanity. 
4. Automatic impulses, such as the cravings of pregnant 
women, may actuate the perpetrators; and the degree of 
mental lesion may be inferred from the extent to which the 
moral nature revolts at and abhors the deed. The same in- 
ference is deducible from the slightness and grotesqueness of 
the peculations, and the degree in which other morbid symp- 
toms are apparent in the body and the mind when the deed is 
committed. 
§ 591. Dr. Rush, whose speculative mind seized readily on the 
then novel distinctions which the French alienists of his day 
were propounding, was the first American authority to claim 
insularity for this propensity. “ There are persons,” he said, 
“ who are moral to the highest degree as to certain duties, but 
who, nevertheless, live under the influence of some one vice. 
In one instance, a woman was exemplary in her obedience to 
every command of the moral law except one—she could not 
refrain from stealing. What made this vice more remarkable 
was, that she was in easy circumstances, and not addicted to 
extravagance in anything. Such was the propensity to this 
vice, that when she could lay her hands on nothing more valu- 
able, she would often at the table of a friend fill her pockets 
secretly with bread. She both confessed and lamented her 
crime.” “ Cases like this,” so argues Dr. Ray, “ are so com- 
571 §592] 
MENTAL UNSOUNDNESS. 
[book I. 
mon, that they must have come within the personal knowledge 
of every reader who has seen much of the world, so that it 
will be unnecessary to mention them more particularly. It 
would be difficult to prove directly that this propensity, con- 
tinuing as it does throughout a whole life, and in a state of 
apparently perfect health, is, notwithstanding, a consequence 
of diseased or abnormal action in the brain, but the presump- 
tive evidence in favor of this explanation is certainly strong. 
First, it is very often observed in abnormal conformations of 
the head, and accompanied by an imbecile condition of the 
understanding. Gall and Spurzheim saw in the prison of 
Berne a boy twelve years old, who could never refrain from 
stealing. lie is described as 4 ill-organized and rickety.’ At 
Hainau they were shown an obstinate robber, whom no cor- 
poral punishment could correct. He appeared about sixteen 
years of age, though he was in fact twenty-six; his head was 
round, and about the size of a child’s one year old. He was 
also deaf and dumb, a common accompaniment of mental im- 
becility. An instructive case has been lately recorded, in 
which this propensity seemed to be the result of a rickety and 
scrofulous constitution. Secondly, this propensity to steal is 
not unfrequently observed in undoubted mania. Pinel says it 
is a matter of common observation that some maniacs, who, 
in their lucid intervals, are justly considered models of probity, 
cannot refrain from stealing and cheating during the paroxysm. 
Gall mentions the case of two citizens of Vienna, who, on 
becoming insane, were distinguished in the hospital for an ex- 
traordinary propensity to steal, though previously they had 
lived irreproachable lives. They wandered over the house 
from morning to night, picking up whatever they could lay 
their bauds upon—straw, rags,clothes, wood, etc.—which they 
carefully concealed in their room.”(p) 
§ 592. How frequently the illustrations just mentioned have 
done service to establish this mania, will be presently no- 
ticed.^1) It is sufficient at present to invoke for their dis- 
posal the principle heretofore abundantly vindicated, that in 
ip) Ray on Insanity, 189, 190, 191 ; see ante, § 106. 
ip1) Infra, note (t). 
572 BOOK I.] 
“ KLEPTOMANIA.” 
[§ 593 
all cases where the mind is sane it is the duty of the State, by 
education and penal discipline, to establish sane morality.^) 
§ 593. Yet, when we analyze the cases adduced of this 
alleged “mania,” we cannot fail to see how many of them are 
attributable to ascertained mental disease. This is eminently 
the case with epileptics. Dr. Erhardt(r) enumerates many 
cases where these unhappy sufferers have been possessed with 
irrepressible desires to appropriate to themselves whatever 
they could secretly lay their hands on, valuable or not. And 
generally with regard to the moral responsibility of epileptics, 
it is important to observe, says the same judicious author, that 
even after attacks have been for months suspended, the mind 
is in a condition of disorganization which should properly 
divert from it the application of those severe rules which apply 
to minds perfectly sound.(s) The same criticism may be ap- 
plied to other cases cited by Gall, of women who, when preg- 
nant, were violently impelled to steal, though perfectly upright 
at other times. Friederich gives the case of a pregnant woman 
who, otherwise perfectly honest and respectable, suddenly con- 
ceived a violent longing for some apples from a particular 
orchard, two or three miles distant. Notwithstanding the 
entreaties of her parents and husband not to risk her character 
and health, and their promises to procure the apples for her in 
the morning, she started off in company with her husband, at 
nine o’clock of a cold September night, and was detected by the 
owner in the' act of stealing the apples. She was tried and 
convicted of theft, but subsequently a medical commission was 
appointed by the Supreme Court to examine and report upon 
her case. Their inquiries resulted in the opinion that she was 
not morally free, and consequently not legally responsible 
while under the influence of those desires peculiar to preg- 
If, however, the full report of this case could be se- 
(q) See supra, §§ 115-188, 403 ; infra, § 495. 
(r) Ueber Zurecbungsfahigkeit der Epileptischen. 
(s) See also Boileau de Castelnau De l’epilepsie dans ses rapports avec 
l’alienation mentale, consideres au point de vue medico-judicaire. Annales 
d’Hygiene publ. et de Medecine Leg., Avril, 1852, No. 94. 
(t) Ray on Insanity, pp. 192-3. Dr. Chipley, in an interesting article in 
the American Journal of Insanity for July, 1866, remarks with much justice 
573 § 595] 
MENTAL UNSOUNDNESS. 
[book i. 
cured, we must conclude, judging from subsequent German 
decisions, that it would exhibit some proof of mental disease. 
§ 594. The same remark applies more strongly to a well- 
known case cited by Fodera.(w) “I had a female servant,” he 
adds, “ who was a very good Christian, very wise, and very modest, 
but who could not prevent herself from stealing in secret, from 
myself and others, even the most trifling things, though aware 
of the turpitude of the action. I sent her to the hospital as 
mad. After a long time, appearing to be reclaimed, she was 
restored to her place among the other servants; by little and 
little, in spite of herself, the instinct returned ; and being dis- 
tracted on the one hand by the evil propensity, and on the 
other by the horror which she felt of it, she fell into an access 
of mania, and suddenly died in the violence of a paroxysm." The 
“ access” was no doubt the manifestation of mania previously 
occult. 
§ 595. A trial, involving the defence of kleptomania, was, 
in 1855, the cause of much discussion by the London press. 
Mrs. R., the wife of a physician of rank and affluence, was 
detected in secreting some French cambric handkerchiefs in 
the shop of a respectable haberdasher. The jury were unable 
to agree, and the Times, in discussing the case, made the fol- 
lowing statement:— 
on the hard use to which several ancient cases of “ monomania” are put, and 
this peculiarly applies to the cases in the text, and others cited from Gall and 
Spurzlieim. “ It must strike one as curious,” he says, “ how often these same 
old cases are made to do duty. They pass down from one author to another 
as sacred heirlooms pass from one generation to another ; and in them seem 
to be garnered all the affections of those who consider them as the most 
perfect specimens of the class they are made to represent. This is the more 
remarkable, since within the past few years the whole theory of moral in- 
sanity has been ably contested by such writers as Heinrich, Leubuscher, 
Mayo, and others, and it no longer receives that uniform approbation in the 
land where it was first recognized as was once accorded to it. Curiously 
enough, as it is losing ground and becoming effete in the land of its birth, it 
meets ‘with an increased support in our own country.’ Is its destiny to be 
like that of the current fashions, which, as they fade away in America, enjoy 
a short reign, and then give place to other discoveries?” 
(w) For other cases, vide Miinclimeyer, in Henke’s Zeitschrift, vol. xlix. p. 
350; Diet, des Sciences Medicales, tome xiv. art. Femme, p. 624, and art. 
Grossesse; Prager Yierteljahrschrift, v. 30, Bd. 2, p. 121. 
574 BOOK I.] 
“ KLEPTOMANIA.” 
575 
“ It is an instance of that not very uncommon monomania 
which leads persons otherwise estimable and well conducted 
to pilfer articles of a trifling value, in obedience to the im- 
pulses of a diseased imagination. The fact is notorious that 
many persons of high rank and ample means have been affected 
with this strange disorder. Every one who is acquainted with 
London society could at once furnish a dozen names of ladies 
who have been notorious for abstracting articles of trifling 
value from the shops where they habitually dealt. Their 
modus operandi was so well known, that on their return from 
their drives their relatives took care to ascertain the nature of 
their paltry peculations, inquired from the coachman the 
houses at which he had been ordered to stop, and, as a matter 
of course, reimbursed the tradesmen to the full value of the 
pilfered goods. In other cases a hint was given to the various 
shopkeepers at whose houses these monomaniacs made their 
purchases, and they were simply forewarned to notice what 
was taken away, and to furnish the bill, which was paid as 
soon as furnished, and, as a matter of course, by the pilferer 
herself, without any feeling of shame, or emotion of any 
kind.” 
§ 595a. The remarks of the Times, just quoted, were used, 
in 1861, to justify the defence of “kleptomania,” offered in 
London by the counsel of two “ lady thieves,” as they were 
called. The defence, however, was summarily rejected by the 
court. On this we have the following judicious remarks by 
Dr. J. C. Bucknill, published in the Journal of Mental Science 
for July, 1862. 
“ The marks of crime, and not of insanity, were so strongly 
impressed upon the instance above referred to, that it is no 
■wonder the defence of the criminals upon the plea of insanity 
converted this question of scientific interest into a public jest. 
Two young women belonging to that class of society which is 
supposed to entitle them to the designation of ladies, wealthy 
and high-born ladies as the paragraph writers say, were de- 
tected thieving in a remarkably systematic manner. They go 
to a shop, examine goods, some of which they pretend to pur- 
chase, and order to be sent to a false address, and in the mean- 
while they take the opportunity of secreting and stealing other 
575 § 595a] 
MENTAL UNSOUNDNESS. 
[book i. 
goods. Thefts due to insanity are not perpetrated in this sys- 
tematic manner, neither do insane thieves usually act in com- 
bination; and besides the want of combination, which is a 
characteristic of the acts of the insane, the chances would be 
a million to one against two insane thieves finding themselves 
in sufficient proximity to act thus, even if they were capable 
of so doing. Such a defence, therefore, in this particular 
instance, was simply absurd. 
“ Moreover, if this defence had succeeded, it might in course 
of law have resulted in sending the lady thieves to abide re- 
lease at her majesty’s pleasure in the criminal ward at Beth- 
lehem, or at the new State Asylum at Broadmoor when it is 
opened, an alternative to which a temporary seclusion at Cold 
Bath Fields might be infinitely preferable. We remember a 
distinguished judge once advising an injudicious counsel to 
withdraw the plea of insanity for an offence of no great mag- 
nitude, on the ground that it was helping his client out of the 
frying-pan into the fire. 
“ The counsel took the hint, and, if we remember rightly, the 
accused man escaped both doctors and jailers from want of 
sufficient evidence. May we not inquire who were the legal 
advisers of the shop-lifting ladies, whose offence has pointed 
so many jests, and suggested so much nonsense? 
“ It must be admitted that writers on insanity, and even writers on 
the jurisprudence of insanity, have not been very successful in de- 
scribing and defining the characteristics of thieving madness ; for 
they have mixed up in a sad jumble descriptions of the thieving 
propensities of persons who are undoubtedly insane, with those of 
the monomania of theft in which the propensity is the principal in- 
dication of an unsound mind, and, again, with certain rare but 
most curious and interesting cases, the nature of which they have 
not taken the pains to investigate, and which we believe to be neither 
allied to insanity nor to crime, but to be a kind of mental and phy- 
sical characteristic quite unconnected with any idea of appropriat- 
ing the property of others, which is the very essence of theft. 
“ We are inclined to believe that insane thieves are not quite 
so common as one would at first be led to suppose from the 
perusal of works on insanity, for, although we find writer 
after writer asserting that thieving is one of the most common 
576 BOOK I.] 
“kleptomania.” 
[§ 595a 
symptoms of mental disease, there is a most suspicious resem- 
blance in the examples which they give to illustrate the 
doctrine. Dr. Daniel Tuke gives the most complete resume of 
the instances on record, at p. 207 of the “ Manual of Psycholo- 
gical Medicinemany, however, of his instances are taken from 
Marc, and Marc we find took most of his instances from Gall. 
“ We shall append to these observations a translation of Gall’s 
cases, which will perhaps amuse some of those who are best acquainted 
with works of insanity, and know how to appreciate the amount of 
original information which they contain. Lavater’s thieving phy- 
sician has certainly done duty everywhere. In this country 
he is generally thought to have been a Bristol practitioner, 
from the way in which he has been appropriated by an able 
writer from that city. Then there was that funny thief of 
Vienna, who only stole pots and pans; he is as ubiquitous as 
the doctor. 
“ It must indeed be admitted, that, if kleptomania be a com- 
mon form of insanity, we are sadly in want of new instances 
to illustrate its phenomena. 
“ The opinion of alienist physicians in these dubious cases 
is wTorth—well, we will not say what we think it worth. It is 
at least sometimes heavily paid for. But are we able to pro- 
duce any definite and reliable information on these cases, the 
result of unbiassed observation, which is worthy to be accepted 
by judges of the land as real and true knowledge? Is notour 
opinion rather the result of most vague and general impressions, 
founded upon no data which we can produce? If we attempt 
to form something like a classification of insane theft, it will 
be found convenient, and, on the whole, consistent with fact, 
to distinguish between—1st, theft arising from perverted in- 
telligence, i. e. delusion; 2d, theft arising from defective intel- 
ligence, i. e. from idiocy, imbecility, and dementia; and, 3d, 
theft arising from perverted emotion, as, for example, the 
caprice of pregnant women, and those cases of supposed irre- 
sistible propensity which have been assumed to deserve refuge 
within the sanctuary limits of mental disease. 
“ About the nature of theft committed under the insti- 
gation of insane delusion there can be no doubt. If the law 
held a man guilty of crime for taking possession of property 
yol. i.—37 
577 § 595a] 
[book i. 
MENTAL UNSOUNDNESS. 
which be believed to be his owrn, that belief being the result 
of insanity, the law itself would be mad. 
“The nature of thefts of the second category is not always 
so intelligible. Abstractly, the nature of a theft committed 
by a perfect idiot, and by a person of merely weak intelligence, 
is the same. The theft is committed from want of a due ap- 
preciation of the character and consequence of the act. Cole- 
ridge said that all rogues were fools with a circumbendibus. 
The question in this case will be the amount of folly. If it 
is so great as to prevent the thief from recognizing the nature 
and consequences of the act, he must be held innocent of crime; 
but in this class of cases the question of intelligence, and of 
consequent responsibility, is one of degree. There must ever be 
a border-land between sense and folly, in which it will be most 
difficult to arrive at a right and just judgment. In the cate- 
gory of insane theft from perverted emotion, our knowledge 
is all at sea. Whatever we may think of the irresistible na- 
ture of thefts by pregnant women, those committed by men 
and women who are in no exceptional condition of body, and 
who manifest no other symptoms of insanity than that they 
steal because they cannot help it, may well be questioned with 
judicial and scientific severity.” 
With regard to the motiveless nature of some thefts and 
the singularly incorrigible character of some thieves, Casper 
makes some remarks which appear both new and true: “ The 
rare cases which Marc refers to, in which the thief throws 
away the object stolen, or spontaneously proposes to pay for it, 
admit of physiological explanation. We do not mean that 
very common state of perversity and malignity which may be 
the cause of some thefts of this kind ; what we mean is, that 
so much tact, address, and courage are often needful to com- 
mit a theft without being discovered, that it is so needful to 
watch and to seize the right moment, to plan with care and to 
execute with promptitude, that one can comprehend the great 
pleasure which is experienced in overcoming such difficulties, 
and how much so perilous an enterprise, crowned with success, 
is flattering to the self-approbation of the thief. 
“ I am convinced, also, that in some individuals a real 
578 BOOK I.j 
“ KLEPTOMANIA.” 
579 
attraction is felt in this chase after the property of another. 
I say chase, for I can compare it to nothing better than the 
passionate desire to follow a hare or a fox at the hazard of life, 
or to watch for the prey like fishermen in England, who remain 
whole days on the water, patiently watching the least move- 
ment of their game. I am thoroughly convinced that this 
emotion is of much force in holding thieves to their mode of 
life, and it is in this manner only that we can explain how it 
is that some of them, after a long imprisonment, immediately 
recommence to steal, although they well know that a second 
punishment more severe than the first awaits them.” 
§ 596. The value of the thing stolen, as has been already 
noticed, and as is well illustrated by Dr. Kieser, does not 
always enter into the motive. Old bits of iron, wood, or 
thread are stuck furtively into the pocket.(v) But it must 
not be forgotten, that, while a market value may amount to 
zero, a conventional value may be higher. Thus, when Dr. 
Buchland was Dean of Westminster, he received anonymous 
letters, containing a chip of black oak cut from the coronation 
chair, and a fragment of the tomb of Henry VIII., which the 
writers stated they had purloined in their youths and now 
desired to return. Here were cases, it might be said, of “ klep- 
tomania,” and the reason given would be that the things were 
of no value. But a scrutiny of the case will show that in 
this, as in all cases of the purloining of “ relics,” the reverse 
is the truth. The chips were taken because they were be- 
lieved to have value. They were curiosities ; they would give 
a sort of eclat to the collections of their possessors. But it was 
soon found that this would not answer. To exhibit these chips 
would be to confess the larceny. They could not, therefore, 
be placed in the collection. They were stolen because they 
were of some value. They were returned when it was found 
their value was lost by their theft. If in such cases “ klepto- 
mania” be established as conferring irresponsibility, there 
would be few memorials of past distinction that would not 
be in a short time chipped away.(w) 
(v) Elemente der Psychiatrik, p. 195. 
(w) See infra, § 598. 
579 § 599] 
MENTAL UNSOUNDNESS. 
[book 
§ 597. Dr. Krafft-Ebing, whose high position as a psycholo- 
gical physician has already been noticed, and who for sagacity 
and experience has no superior, thus (1871) speaks, under the 
title “Wahnsinn,” in Holtzendorff’s Encyclopaedia, a work, as 
has been said, of very high juridical authority: “In the pro- 
cess of maniacal excitement there is sometimes a marked pro- 
pensity for stealing. But this impulsive, vehement compulsion 
(Drang) to stealing is never an isolated pathological symptom. 
1 Kleptomania’ in this sense, like the other ‘ monomanias,’ is im- 
possible. As part-symptoms of general psychical disease, we 
may undoubtedly class morbid impulses to kill, to steal, etc. 
These have been erroneously called monomanias, and the gene- 
ral condition of disease has been, by this process, ignored. 
The doctrine of monomania is to-day rightly abandoned.” (x) 
§ 598. What, then, are the tests by which “kleptomania” 
is determined ? Matthey tells us that it exists whenever there 
is a stealing without necessity, without being compelled by 
the cravings of misery. But is it a requisite of criminal 
stealing that it should be impelled by necessity, and by the 
cravings of misery ? Are thieves exclusively those who are 
impelled by “ le besoin pressant de la mis&re ?” Certainly the 
records of our criminal courts do not show this. Most of those 
who are indicted for larceny, indeed the whole class of shop- 
lifters, and of pickpockets, are persons of good appearance, 
well-dressed, with intellects which would atford them adequate 
support in trade, and sometimes even luxurious lives. Thieves 
of this class steal, not for necessaries, but to supply luxurious 
superfluities. The number of those who steal to appease 
hunger, or to buy clothing that is simply decent, is small. 
§ 599. Another mark of “kleptomania,” according to Marc, 
is the stealing of articles of value, small in comparison with 
the extent of the offender’s estate. But is it an incident of 
criminal larceny that the article stolen should be large in com- 
parison with the offender’s estate? Have we not already 
seen(y) that collections of coins and curiosities have to be 
jealously guarded to preserve them from the depredations of 
(2) See supra, § 570. 
(y) Supra, § 596. 
580 BOOK I.] 
“ KLEPTOMANIA.” 
[§ 603 
avaricious collectors? Have we not had cases of great depre- 
dators, who, with immense spoils already secured, have gone 
on embezzling? Are there not in the criminal reports fre- 
quent instances of rich but persistent thieves? 
§ 600. It is said, again, by Marc, that this supposed pro- 
pensity is marked by indifference to the stolen article when 
obtained; it is soon discarded or thrown away. But is not 
the man who is “rapax alienii,” veryoftenvto use Tacitus’s 
fine antithesis, “ profusus sui ?” Is not that which is lightly 
got, often lightly parted with? Are there not numerous cases 
in the books in which articles of jewelry are stolen for the 
purpose of being given away ? 
§ 601. Then, again, we have assigned as a test of “klepto- 
mania” the return by the offender of the thing stolen to the 
party from whom it was taken. But have we not numerous 
instances of “ conscience money” returned to government; 
money of which it is the distinguishing mark that it was un- 
conscientiously taken and is conscientiously returned ? And 
may there not be sometimes a passion for pilfering, like a 
passion for fishing or hunting, which, without being “irre- 
sistible,” may yet spend itself in the pursuit, and, when the 
object is obtained, be followed by sober reflection and by 
amends ? 
§ 602. Undoubtedly insane persons do pilfer, and pilfer some- 
times with much ingenious surreptitiousness ; and undoubtedly, 
as Sander illustrates,(k) this is often a symptom of incipient 
mental paralysis. The instinct for acquisition is congenital; 
when the mind fails, and the idea of property becomes con- 
fused, this instinct often appears in appropriating and even 
secreting the property of others. But this is a symptom of a 
decaying or disordered intellect, not a proof of monomania co- 
existent with sanity. 
§ 603. In other words, “ kleptomania” cannot coexist with 
sanity, nor can a sane person be a “ kleptomaniac.”(a) 
(z) Vierteljahrschrift f. gericht. Med. 1863; see also cases, infra, §§ 843, 
844. 
(a) See supra, §§ 146-162. 
581 § 605] 
MENTAL UNSOUNDNESS. 
[book i. 
(e2) u Pyromania” (morbid incendiary propensity). 
§ 604. Although this abnormal propensity has no substantive 
existence as a monomania, it will remain, nevertheless, worthy 
of much study as a symptom of insanity. In investigating 
such cases, the following inquiries should be made:— 
a. In persons who have passed the age of puberty, whether 
there is not depression or partial insanity as a basis; whether 
the individual was not overcome and impelled to the deed by 
a nameless dread which he could not dispel, or by some crazy 
notion before concealed. 
b. In persons ywstf arrived at the age of puberty. Here the state 
of development in general, and in particular that of the mind, 
of the whole body, and of the sexual organs, must be accu- 
rately weighed and estimated, with special reference to age 
and sex, education and mode of life, as experience teaches that 
the irregularities of every kind which here occur (such as ac- 
celerated and impeded growth, unusual prostration and fatigue 
of the limbs, with painful sensations not produced by adequate 
visible causes, swellings of the glands, anomalies in menstrua- 
tion, cramps and other nervous attacks, and particularly irri- 
tations of mind), exert the most important influence on the 
growth and increase of certain desires and inclinations, and 
easily impair the power of self-control. These transition states 
acquire a particular significance when accompanied by home- 
sickness, which, without necessarily attaining the height of 
complete melancholy, becomes a powerful element in morbid 
derangement. 
c. Where the individual is yet in infancy. Here, in the absence 
of reason, reflection, and religious and moral culture, a childish 
curiosity generally furnishes the motive, more rarely a grudge, 
anger, or revenge; but physical and mental or moral causes 
may also be at work independently or as auxiliaries. Tender 
years are sufficient, in such cases, to exclude the idea of cri- 
minal responsibility. 
§ 605. “ A morbid propensity to incendiarism, or pyromania, 
as it has been termed, where- the person, though otherwise 
rational,” it is stated by Hr. Ray, “ is borne on by an irresistible 
power to the commission of this crime, has received the at- 
582 BOOK I.] 
“PYROMANIA.” 
[§ 606 
tention of medical jurists in Europe, by most of whom it has 
been regarded as a distinct form of insanity, annulling re- 
sponsibility for the acts to which it leads. Numerous cases 
have been related, and their medico-legal relations amply dis- 
cussed by Platner, Vogel, Masius, Henke, Gall, Marc, Fried- 
reich, and others. In a few of these cases the morbid propensity 
is excited by the ordinary causes of insanity ; in a larger class 
it is excited by that constitutional disturbance which often 
accompanies the menstrual periods; but in the larger class of 
all, it occurs at the age of puberty, and seems to be connected 
with retarded evolution of the sexual organs. The case of 
Maria Franc, quoted by Gall from a German journal, who was 
executed for house-burning, may be referred to the first class. 
She was a peasant of little education, and, in consequence of 
an unhappy marriage, had abandoned herself to habits of in- 
temperate drinking. In this state a fire occurred in which 
she had no share. From the moment she witnessed this fearful 
sight, she felt a desire to fire houses, which, whenever she had 
drunk a few coppers’ worth of spirits, was converted into an 
irresistible impulse. She could give no other reason nor show 
any other motive for firing so many houses, than this impulse 
which drove her to it. Notwithstanding the fear, the terror, 
and the repentance she felt in every instance, she went and did 
it afresh. In other respects her mind was sound. Within 
five years she fired twelve houses, and was arrested on the 
thirteenth attempt.” But as to this statement, two qualifica- 
tions must now be kept in mind. First, whatever may have 
been the temporary reception of this doctrine by alienists 
thirty years ago, it is now, as is shown by Dr. Liman in his 
(1871) edition of Casper, almost entirely without high psycho- 
logico-medical support. Second, a close examination of the 
case of Maria Franc exhibits, as subsequent observers agree, 
mental disturbance, which, when she was inflamed by the 
“ few coppers’ worth of spirits” above noticed, readily took the 
incendiary type.(b) 
§ 606. “ This plea,” we are told by Taylor, “ has been already 
(5) As to this and other of Gall’s cases, see supra, § 594, note (t) ; and 
§ 595a. 
583 584 
MENTAL UNSOUNDNESS. 
[book t. 
admitted in English law,(<?) but chiefly”—it should have been 
said only—“ in those instances in which there was strong reason 
to suspect intellectual aberration. In one recent ease,(d) the 
prisoner was convicted on the principle that, although of weak 
intellect, she knew right from wrong.”(e) Among several 
important trials in which this plea has been urged in defence, 
the one most interesting to the medical jurist is that of James 
Gibson, tried before the High Court of Justiciary, Edin- 
of which a very full report will be found in Cor- 
mack’s Edinburgh Journal, February, 1845, p. 141. The 
prisoner was charged with setting fire to certain premises, and 
the defence chiefly rested upon the allegation that he was in a 
state of mind which rendered him irresponsible for the act. 
The medical evidence was generally in favor of the insanity. 
The Lord Justice Clerk (Hope), in a very elaborate charge to 
the jury, laid down for their guidance most of the legal propo- 
sitions which have been already discussed under homicidal 
mania. lie remarked that they were “ not to consider insanity 
according to the definitions of medical men, especially such 
fantastic and showy definitions as are found in Ray, whose 
work was quoted by the counsel for the panel, and in many 
other medical works on the subject. He adopted Mr. Alison’s 
view that the consciousness of right and wrong must be applied 
to the particular act, and not to crime in the abstract. The 
duty of deciding on this question is with the jury; it is not to 
be delegated to medical men, and by relying upon their own 
judgment, their decisions would he nearer the truth than that 
of any body of medical witnesses.” The jury negatived the 
plea, and the prisoner was sentenced to transportation for four- 
teen years.(y) 
An instance of insane pyromania may be found in the 
case of Jonathan Martin, who fancied himself to be deputed 
from God to burn down the Cathedral of York, in order to do 
away with the heresies which he supposed to exist in the 
church.(A) 
(c) See cases, Med. Gaz. xii. p. 80. 
(d) Reg. v. White, Wilts Summer Ass. 1846. 
(0 See Ann. d’Hyg. 1833, ii. 357; 1834. ii. 94. (/) Dec. 23,1844. 
(<7) Taylor’s Med. Jur. 595. (h) Ibid. p. 595. 
584 BOOK I.] 
“ PYROMANIA.” 
[§ 606 
As exhibiting the checks proposed by those who maintain 
the independent existence of “ pyromania” as a “ monomania,” 
we call attention to the following, laid down by Hencke, 
adopted by Marc, and recommended by Dr. Ray:— 
1. “To prove the existence of pyromania, produced by the 
sexual evolution, the age should correspond with that of pu- 
berty, which is between twelve and fifteen. Sometimes, how- 
ever, it may occur, especially in females, as early as the seventh 
or tenth year, and, therefore, if the symptoms are well marked, 
we have a right to attribute them to this cause. 
2. “ There should be present symptoms of irregular develop- 
ment ; of marked critical movements, by means of which nature 
seeks to complete the evolution. These general signs are, 
either a rapid increase of stature, or a less growth and sexual 
development than is common for the age of the individual; an 
unusual lassitude and sense of weight and pain in the limbs, 
glandular swellings, cutaneous eruptions, etc. 
3. “ If, within a short time of the incendiary act, there are 
symptoms of development in the sexual organs, such as efforts 
of menstruation in girls, they deserve the greatest attention. 
They will strongly confirm the conclusions that might be 
drawn from the other symptoms, that the work of evolution 
disturbed the functions of the brain. Any irregularity what- 
ever of the menstrual discharge is a fact of the greatest im- 
portance in determining the mental condition of incendiary 
girls. 
4. “Symptomsof disturbance in the circulating system, such 
as irregularity of the pulse, determination of blood to the 
head, pains in the head, vertigo, stupor, a sense of oppression 
and distress in the chest, are indicative in young subjects of 
an arrest or disturbance of the development of the sexual func- 
tions, and therefore require attention. 
5. “ For the same reason symptoms of disturbance in the 
nervous system, such as trembling, involuntary motion of the 
muscles, spasms and convulsions of every kind, even to epi- 
lepsy, are no less worthy of attention. 
6. “ Even in the absence of all other symptoms, derangement 
of the intellectual or moral powers would be strong proof, in 
these cases, of the existence of pyromania. Of the two, the 
585 586 
MENTAL UNSOUNDNESS. 
[book i. 
latter is far the more common, and is indicated by a change in 
the moral character. The patient is sometimes irascible, quar- 
relsome, at others, sad, silent, and weeping, without the 
slightest motive. He seems to be buried in a profound revery, 
and suddenly starts up in a fright, cries out in his sleep, etc. 
These symptoms may have disappeared and reappeared, or 
degenerated at last into intellectual mania. 
7. “ The absence of positive symptoms of mental disorder, as 
well as the presence of those which appear to show that the 
reason is sound (so it is argued), is not incompatible with the 
loss of moral liberty.” As giving the old but now exploded 
theory on this point, the following may be cited from Marc: 
“ Even when, previously to the incendiary act, they have shown 
no evident trace of mental alienation, and been capable of 
attending to their customary duties; when, on their examina- 
tions, they have answered pertinently to questions addressed 
to them; when they have avowed that they were influenced 
by a desire of revenge; we cannot conclude with certainty 
that they were in possession of all their moral liberty, and 
that, consequently, they should incur the full penalty of the 
crime. These unfortunates may be governed by a single fixed 
idea, not discovered till after the execution of the criminal 
act. Pyromania, resulting from a pathological cause, may 
increase in severity, as this cause itself is aggravated, and sud- 
denly be converted into an irresistible propensity, immediately 
followed by its gratification.”^) 
§ 607. Griesinger views the question with his usual philo- 
sophical breadth: “If, from the observations which have been 
published upon this subject, we exclude all those cases where 
egotistical motives have evidently guided the hand of the in- 
cendiary, there still remains a certain number in which this 
crime of arson has been committed by patients laboring under 
a well-marked melancholia (particularly of nostalgia passing 
into mania), a state which is often accompanied by important 
derangements in the general health, and frequently in the 
sexual organs. The morbid impulse develops itself precisely 
in the same manner as does the homicidal impulse which we 
586 
(*) Ray on Insanity, 201. BOOK I.] 
“ PYROMANIA.” 
[§ 607 
have just been studying. The feeling of mental anxiety and 
the general disturbance which arises from the morbid condi- 
tion of the faculties do not, as has been said (Masius), impel 
the individual to seek to stifle this anxiety by the sight of a 
great flame, but merely to relieve by an outward act, however 
negative and destructive in character, the profound discord 
and uneasiness which rule within, and thereby to obtain peace 
and tranquillity. The particular direction which this morbid 
impulse takes, viz., incendiarism, may arise from the fact that 
to those persons in whom this tendency has been most accu- 
rately observed—namely, young people, particularly young 
maid-servants—fire, with which they in the performance of 
their duties have much to do, is always ready at hand, and 
presents itself as the readiest means by which they can satisfy 
the morbid craving which torments them—a means which is 
easily employed, and which requires neither great energy of 
action nor violent determination to make use of. 
“Away, then, with the term pyromania, and let there he a careful 
investigation in every case into the individual pyschological pecu- 
liarities which lie at the bottom and give rise to this impulse. 
“ The grand question in foro, in all such cases, must ever be 
to ascertain whether there existed a state of disease which 
limited, or could have limited, the liberty of the individual. 
Sometimes the symptoms of undoubted mental disease can be clearly 
distinguished—a dominant feeling of anxiety, hallucinations, states 
of hysterical exaltation; in other cases, the actual existence of a 
nervous disease {epilepsy or chorea) renders probable the assumption 
that the accused has been subjeet to some passing mental aberration. 
We should not forget that usually very little is wanted to in- 
terfere with the liberty of action: they are, for the most part, 
young, childish or half childish, often morally and intellectually 
weak, silly, and capricious individuals. The incendiary act 
often appears to be utterly without any motive, the feeble ego 
having opposed no resistance to the thought of the deed which 
suddenly sprang up. 
“ Of course there are also cases where the insane set fire to 
buildings under the impulse of motives very different. Jona- 
than Martin, who burned the Cathedral of York, was not a 
melancholic, but was evidently laboring under chronic partial 
587 588 
MENTAL UNSOUNDNESS. 
[book i. 
dementia, and it was in consequence of his hallucinations 
that he sought ‘ to purge the house of the Lord of the unwor- 
thy priests’ who dwelt in it. 
“ To include this case under the title of 1pyromania’ (e. g., Pinel, 
‘Path, p. 328) is the necessary but evil result of a superfi- 
cial classification.”(/) 
§ 608. Dr. Krafft-Ebing, in the article on “monomanias” 
already quoted, says: “ Incendiarism through psychical disease 
is always a symptom of such disease, though variously induced. 
With persons suffering from nostalgia and melancholia, it is 
prompted by terror and sensual delusions; with maniacs, by 
insane conceptions; with idiots, by childish pleasure in fire, or 
diseased passion (revenge). With youthful culprits the crime 
is more frequent, because it requires no courage, and is easily 
committed.” This eminent and experienced observer holds, 
as has been seen, that the theory of “ monomania” is in itself 
psychologically absurd.(&) 
§ 609. The statistics that have recently (1871) been collected 
on this topic go a great way to refute the theory that there is 
a special function which, when deranged, exhibits itself as a 
morbid incendiary propensity, and that there is a particular 
age when this derangement is apt to occur. Notwithstanding 
the assertion that this is a well-known and constant disease, 
there are some sections of the country in which all the cases 
of arson that have been tried for years are those in which 
adults were the defendants, and this without a single of the 
“pyromaniac” symptoms which have been heretofore detailed. 
The table of Prussian criminal statistics for twelve years shows 
that out of a thousand trials of children, of the ages which 
“pyromania” is said to affect, but a single case of incendiary 
crime is to be found. 
§ 610. The doctrine, in fact, has arisen from the difficulty 
felt by learned and philosophical experts in placing themselves 
in the position of a young servant charged with arson. A boy 
of ten years(Z) set fire, without apparent motive, to his father’s 
O') Griesinger, Ment. Path., Syden. ed. § 129. 
(&) See supra, § 570. 
(0 See case given by Dr. Faber, in the Deutsche Zeitschrift fur Staatsarz- 
neikunde for 1870. 
588 BOOK I.] 
“PYROMANIA.” 
[§ 611 
house. Mental unsoundness either at the time of or after the 
act was not provable; and there were no anomalies of physical 
development or of physical disease. He was aware of the 
penal nature of the act. He went about it cautiously, removing 
beforehand a child that was placed under his care. The only 
assignable cause was childish caprice. A philosophical expert 
would with difficulty understand this, not being able to put 
himself in the boy’s place. But the court and jury are forced 
to do this, and hence in this case the judgment was that the 
boy was responsible, though in a degree lessened by his youth. 
Or a girl of the same age, employed as a servant in a farm- 
house, gets up too late in the morning, and is scolded or de- 
prived of her breakfast. This is a grievance the expert may 
think but little, but to the girl, who has slight intercourse with 
any one out of the farm, and to whom the farm is everything, 
the inshlt is as mortifying as would be the withdrawal of a 
German savan’s decoration, or the turning, by an English min- 
ister, of a petitioner out of doors. The girl goes out and sets 
fire to a haystack, previously seeing that there is little danger 
to any one’s life by the fire. This is a serious thing to the 
expert, who looks at fires in their probable consequences; but 
it is a light thing for the girl, who views the burning hay- 
stack as she would a large-sized country hearth-fire. The ex- 
pert, therefore, hearing the facts, declares that it is impossible 
that a sane person could commit arson on so slight a provoca- 
tion, and that the girl must be a “ pyromaniac.” Yet the 
provocation, mutatis mutandis, is the same as that which led to 
the “ Captain Bock” arsons in Ireland. A peasant is aggrieved. 
He determines to avenge himself by burning a haystack or 
perhaps a house. The burning is partly from revenge, partly 
from a wish to drive off an incongenial neighbor. The pro- 
pensity is indulged in as long as it can be done so with impu- 
nity. It is suppressed as soon as men know that it will be 
punished. 
§ 611. Ye must not, however, forget that insane persons 
sometimes have a propensity to play with fire,(?7i) as they have 
(to) Cases of pyromania, as an incident of insanity, are given in Friedreich's 
Blatter for 1870, p. 33, and for 1871, p. 262. 
589 §613] 
MENTAL UNSOUNDNESS. 
[book i. 
for other kinds of mischief; nor are cases unknown in which 
lunatics have been possessed with the delusion that they were 
divinely commissioned to use tire to destroy churches, palaces, 
or even cities, For is it denied that an idiot, watching a 
woman kindling a fire, may, in exercise of those imitative 
faculties which in him are so strangely divorced from reason, 
go out and set fire to a house. These are cases of insanity, in 
which insanity is substantively and independently shown. All 
that is here asserted is that there is no such thing as “ pyro- 
mania,” as a moral disease, coexistent with mental sanity.(w) 
§ 612. We must therefore conclude that to give legal validity 
to pyromania as a defence, substantive derangement should be 
shown. This results from the position (1) that special pro- 
pensities are not regarded as in the legal sense constituting in- 
sanity, unless reason is disordered by disease ;(o) and, (2) that 
aside from the psychological question, law is ordained for the 
very purpose of checking such propensities, and preserving 
the community from devastation.(p) In these conclusions the 
highest medical authorities unite. We have a remarkable 
illustration of this in a series of cases reported in 1858, as de- 
cided by the Medical Faculty of Prague. In Bohemia the 
practice is to refer all questions of alleged criminal lunacy to 
that faculty, charging it with judicial responsibilities in the 
rendering of its judgments. One of the cases thus referred 
was as follows:— 
§ 613. In the village of F. four fires broke out in quick 
succession, the first on May 24, the last on June 8,18—. A. B., 
a child’s nurse in the family of M., in whose house two of the 
fires had begun, was suspected of the offence; and on her 
second hearing (she having on the first denied all knowledge 
of the offence) admitted that the two fires in her master’s house 
had been caused by her carelessness. She left butter, she said, 
in both instances, accidentally in the kitchen, and this caught 
fire, and caused the conflagration. Of the two other fires she 
claimed to know nothing. When, however, it was proved 
that there was no butter in the house at the time of which 
(ft) See supra, §§ 146-161. 
(p) Supra, §§ 188, 403. 
(o) Supra, §§ 146-161. 
590 BOOK I.] 
“ PYROMANIA.” 
591 
she spoke, she confessed to having in all the four cases inten- 
tionally caused the fire. She declared that she had been seized 
with an impulse, which she could not get rid of, to set fire to 
some hayricks by the shed. She placed some lighted matches 
in the hay, and, when she saw that the fire caught, went into 
the house, seized the child, and looked with pleasure on the 
fire. When this was extinguished, it seemed to her as if some 
one said to her that there had not been burning enough; and, 
two hours after the first fire, she placed a lighted match among 
some combustibles under the roof. When she saw that this 
had caught, she hurried with the child into the street, and 
called out for help. Some days afterwards she was sent to 
take care of the children of a relative of her master. When 
there, something seemed to tell her to set fire to the house, 
which she at once did, lighting some rubbish under the roof 
by matches which she then carried constantly about her person. 
When she saw that the fire had caught, she ran out and gave 
alarm, but returned to look at the fire. A fortnight afterwards 
she was again alone in the same house, and again the thought 
of firing it possessed her. Again it caught, and again she ran 
into the street where she remained until her cries had brought 
help. She stated on her examinations that she set fire to the 
houses because it seemed to her that some one. told her to do so ; 
that she had a sort of pleasure in it; to which she afterwards 
added that a strange man had advised her to do it, promising 
to pay her, and saying that much could not be done to her on 
account of her youth. This allegation of a stranger, however, 
was proved to be false, and was afterwards recalled by her. 
The evidence of her employers was that she had shown nothing 
unusual in her conduct as a servant; and that she had been 
generally composed when the fires had been talked about in 
the family. 
It appeared that she was in her fifteenth year when the fires 
took place. She had attended school for some time, but had 
been very careless, and had learned little. Her intellect as a 
child was weak, so that she could neither read, write, nor count; 
and her religious education had been greatly neglected. Her 
disposition was lively and open, though her teacher had noticed 
in her a tendency to pilfer. When nine years old, she went 
591 592 
MENTAL UNSOUNDNESS. 
[book i. 
into service as an attendant on little children. She changed 
her service frequently, sometimes on account of supposed 
bodily weakness, though she was twice dismissed on suspicion 
of stealing. Her employers testified that they had noticed in 
her no traits of insanity, nor any particular pleasure in fire; 
she was always healthy and cheerful; and, though somewhat 
idle and sometimes rough, never malicious. Ho insanity was 
traced in her family. Menstruation had not begun at the time 
of the fires, though it took place soon after her imprisonment, 
and had no unusual symptoms. According to the official phy- 
sician, she was corporeally well developed: her brain formation 
was normal, and her various functions in a natural state. She 
gave correct and coherent answers to questions put to her, and 
during nine months’ imprisonment showed no trace of insanity. 
Dr. S. and surgeon M. gave as their opinion that A. B. had 
committed the specified offences in a state of psychical de- 
rangement, pyromania ; and was to be regarded as irrespon- 
sible. The cause they traced to delay in sexual evolution, by 
which her normal brainular activity had been temporarily 
checked, and free self-determination impeded. Dr. 0., on the 
other hand, declared that she was, at the time of the offence 
and subsequently, sane and responsible. In consequence of this 
divergence of opinion, the official view of the faculty was 
sought, and was given subsequently as follows:— 
“ If we consider the bearing and conduct of A. B., no proof 
arises, after a most careful weighing of the circumstances, 
which indicates in her insanity with the symptom of irre- 
sistible incendiary mania. Her history shows her health, 
bodily and mentally, with the exception of an early fever, and 
subsequent supposed headaches, to have been sound. The 
fever, however, left no results; and her headaches were not 
serious enough to require her to take to her bed or consult a 
physician. In her sexual development nothing abnormal is 
perceived. * * The time of menstruation is that of our 
climate. * * As A. B. during the whole period gave no 
sign of unusual condition, was cheerful, aud exhibited no 
variation in her usual demeanor, there is no doubt that down 
to the time of the act she was sane. 
“ As to what concerns the act, in its mode and execution, 
592 BOOK I.] 
“ PYROMANIA.” 
[§ 614 
there is nothing to indicate psychical disease. She selected 
periods when all the family, except the children, were absent, 
and the children she removed, so as to be out of her way; and 
the circumstance that she was in almost all cases the first to 
call attention to the fire shows a capacity for correct judgment, 
as she could in this way best expect to remove suspicion. No 
doubt exists that she was fully conscious of the nature and 
wrongfulness of her act. * * * As to motive, she relates 
that she heard a voice leading to the act, and that she always 
had pleasure in fire. But, independently of the lack of evi- 
dence on this point, the circumstance that she always carried 
matches about her does not point to action that is purely in- 
stinctive and momentary. To the same effect are her conversa- 
tion and other circumstances. * * If A. B. was, therefore, 
not only before but during the act in full possession of her 
faculties; so her subsequent conduct, her distinct, clear, cohe- 
rent answers, her various subterfuges, the absence of all marks 
of positive insanity, go to show her present soundness of mind. 
When it is considered that the tendency to incendiary action 
is indeed a symptom of insanity, but that the so-called pyromania, 
so far as it is regarded as an irresistible propensity disconnected 
with any f urther disturbance of mind or body, is an absurdity, 
we are justified in declaring that A. B. at the time of the 
offences in question was mentally sound, and was therefore in 
a state to understand the wrongfulness of her conduct, and to 
perceive its consequences.” 
§ 614. In a second case of arson by a girl of 16 under cir- 
cumstances not dissimilar from the last, the faculty stated that 
it was acknowledged by the majority of experienced psycho- 
logical and forensic physicians that pyromania, under which 
name is understood a distinctive impulse to arson, is not a 
separate form of insanity, but that it appears frequently as a 
mere symptom of mental disease, and therefore is to be viewed 
as a part of a whole, only as a trait exhibiting the general 
malady. In cases where pyromania is a defence, it is therefore 
necessary to show a state of mental disease of winch this im- 
pulse to arson is a symptom. To assume that a person without 
any further disorganization of reason or feeling, simply through 
a blind instinct, should be driven to the illegal act, is, at least 
YOL. I.—38 
593 § 615] 
MENTAL UNSOUNDNESS. 
[book i. 
in foro, unjustifiable; since every crime which the perpetrator 
declares he was driven to by an irresistible impulse, would 
thus go unpunished. (<7) 
§ 615. “At the meeting of the Vienna Society for Psychiatre, 
in January, 1871, Dr. Flechner indorsed the opinion of Ideler, 
who considers pyromania an abstraction, of which the judicial 
physician has no need, and the views of Casper, Griesinger, 
Jessen, and Lien, who are of opinion that arson, when com- 
mitted by insane persons, may be explained as we explain any 
of their other acts. Dr. Flechner has come to this conclusion, 
not only from an unbiassed reading of the believers in pyro- 
mania, but also from studying the cases that have come under 
his observation during his thirteen years’ experience as judicial 
physician. He insists that there has never come a case under 
his notice that seemed to justify the recognition of a form of 
insanity that could consistently be characterized as pyromania. 
“ Of the eleven cases Dr. Flechner had observed, seven were 
males and four females; eight were between fifteen and twenty- 
five, and three were more than thirty years of age; eight were 
peasants, one was a "wagon-maker, one a baker, and one a clerk. 
“ Case I.—A young man who was pursued by the idea that 
he would induce his father to comply with an absurd demand 
by burning the house down. 
“ Case II.—Hallucinations were present which led to arson 
as a means of getting money. 
“ Case III.—An act of revenge for an imagined wrong. 
“ Case IV.—Originally weak-minded; in consequence of in- 
temperance in drinking, insane. 
“ Case V.—An act of revenge and maliciousness; the perpe- 
trator weak-minded, and not conscious that the deed was 
punishable. 
“ Case VI.—An idiot was hired to set fire to a house for a 
few kreutzers. 
“ Case VII.—An idiot was persuaded, by a malicious woman, 
to fire a house. 
(?) See Neue Sammlung Gericlitsartlicher Gutacliten aus den Verliand- 
lungen der Prager Medicinischen Facultat. 1858. 
See also translation of Jessen’s work on Brandstiftung in 19 Am. Jour, of 
Ins. 163, 286, 434. 
594 BOOK I.] 
“ PYROMANIA.” 
[§ 616 
“ Case YIII.—Arson as a consequence of hatred and revenge. 
Perpetrator was idiotic and insane. 
“Case IX.—A sane but demoralized person. Committed 
arson five times from malice. 
“ Case X.—Melancholy, with a feeling of anxiety, tired of 
life and increase of these conditions at the period of menstru- 
ation ; attempt at suicide and arson in consequence of an im- 
pulse to do something to get rid of the feeling of anxiety, and 
to change her place of service. 
“Case XI.—That of an idiot, wholly incapable of distin- 
guishing between right and wrong.’’(g1) 
The theory that this impulse (Brandstiftungstrieb) is often 
a concomitant of the first development of puberty, has led to 
a series of very interesting disquisitions by Landsberg.(r) 
§ 616. In the case of William Spear, who was tried for arson, 
in 1858, at Utica, before Judge Allen, of the Supreme Court, 
pyromania was interposed as a defence. The weight of medi- 
cal testimony, however, was against the defence, and the jury 
were so charged by the court. In the course of the charge, 
Judge Allen said : “ The existence of the impulsive mania 
could only be proved by the commission of the acts which it 
was sought to excuse, which would be no evidence at all; and 
the jury could never know, even should it be conceded that 
such a ‘ moral mania’ might and did exist, whether, in a par- 
ticular case, the acts were the result of this impulse or the 
fruits of a wicked and depraved mind. Courts and juries, in 
the attempt to determine the existence of moral mania, or irre- 
sistible impulse, apart from mental disturbance and derange- 
ment, as evidenced by the well-known symptoms of mental 
diseases, as an excuse for crime, would become bewildered and 
lost in the labyrinth of scientific niceties and fanciful theories. 
But when called upon to consider the subject of insanity, re- 
(ql) 5 Journ. Psyc. Med. 605. 
(r) Ueber die Feuerschausucht, Hermann, Yezin (Aerztliches Obergu- 
taclien iiber den Gemuthszustand der sich wegen Brandstiftung in Unter- 
suchung befindenen); Hofling (Die Lehre vom krankhaften Brandstiftung - 
striebe); and Meding (Ein Naclitrag zu dem Gespenst des Brandstiftung- 
striebes). See an interesting case of alleged pyromania in State v. Green- 
wood, reported in 5 Am. Journ. of Insan. 237. 
595 §616] 
MENTAL UNSOUNDNESS. 
[book i. 
garded as a derangement of the intellect, a mental disease, or 
the manifestations of disease affecting the mind, whether the 
moral powers were or were not impaired or perverted, they 
were not entirely without the means of arriving at a satisfac- 
tory conclusion, with the aid of intelligent and experienced 
medical men, and in the exercise of their good judgment.” 
The judge then commented upon the evidence bearing 
upon the question of the insanity of the prisoner in detail, 
and suggested that “ the medical witnesses, who favored the 
idea of the insanity and consequent irresponsibility of the 
accused, appeared to think that the particular form of the 
disease resembled that called Pyromania, which was evinced 
by a morbid propensity to incendiarism, and which it was 
claimed existed when a person otherwise rational was im- 
pelled irresistibly to the commission of this crime; that 
this case was open to remark in this particular, that in every 
instance in which the prisoner had fired a building, the act 
was traceable to motives of hatred, and a desire for revenge 
upon some individual for an act, really committed by that indi- 
vidual, offensive to the prisoner. When every act of incen- 
diarism could be traced directly to a motive which would be 
influential with a bad man, and such as not unfrequently, if 
not ordinarily, influenced men in the commission of like 
crimes, and when in no instance the torch had been applied 
from mere love of burning, it would not be safe to excuse the 
party, simply because the motive might, to the jury, seem 
inadequate. So long as there was no delusion, no loss of 
memory and judgment, and the party bought the very usual 
method of wicked men to gratify revenge, and resorted to the 
same means to conceal the evidences of his crime, he should 
not be excused upon any theory of moral insanity, or by 
reason of any sympathy, which would be entirely misplaced.” 
The judge then submitted the case to the jury, with the re- 
mark that it was their peculiar province to determine whether 
or not the “ prisoner was, within the rules thus imperfectly 
laid down, responsible for the act, and therefore guilty of 
arson. ”(s) 
596 
(*) See supra, §§ 146-161 BOOK I.] 
“ EROTOMANIA.” 
[§ 619 
Hot merely juridically, therefore, but psychologically, must 
we conclude that “ pyromania” has no existence as a specific 
and independent form of insane irresponsibility. 
(/2) “ Erotomania,” “ aidoiomania” {morbid sexual propensity). 
§ 617. There are certain marked features which distinguish 
the sexual passion from other natural instincts:— 
First, it diminishes, while most other appetites, e. y., hunger, 
intensify, on repression. It is, therefore, capable, which they 
are not, of restraint by the avoidance of stimulating causes. 
Second, it is, with sane persons, accompanied by an instinc- 
tive sense of shame. The coarsest peasant, who would answer 
other natural calls in the market place without a blush, seeks 
for darkness and concealment in order to satisfy the sexual 
instinct. Where this sense of shame exists, so that the passion 
is subjected to it, we can scarcely speak of the passion as irre- 
sistible. On the other hand, where there is no sense of shame, 
we can scarcely speak of the condition as one of sanity. 
§ 618. Ho doubt there are several forms of insanity in which 
the sexual feeling is disproportionately excited, and no doubt 
undue sexual indulgence is provocative of insanity. But there 
is no sound authority, either psychological or judicial, to main- 
tain the position that there can be irresponsible insanity of 
the sexual feelings in a person otherwise sane.(7) 
§ 619. Marc, to whose unphilosophical enthusiasm for clas- 
sification we owe the existence of so many “ monomanias,” 
gives the name of aidoiomania to the excess of the sexual 
impulse, which is called satyriasis when it occurs in the male, 
and nymphomania, or uteromania, in the female. This abnormal 
propensity occurs as a symptom of mania, lunacy, and depres- 
sion, as well as of imbecility with maniacal excitements, but 
is also, he declares, found coupled with freedom of reason and 
(0 See on this topic an interesting article by Dr. R. L. Parsons, in 5 
Journ. Pliysc. Med. 456. See also Siebold’s Gericht. Med. § 210. An in- 
teresting case of Uterine Furor will be found in El. v. Siebold’s Journ. vol. 
vi. p. 943. See also a case in Henke’s Zeitsclir. 41, p. 393. A very able 
essay on Nymphomania will be found in Diet, des Sciences Med. von Louyer, 
Villermay, tome xxxvi. p. 561. 
597 § 619] 
MENTAL UNSOUNDNESS. 
[book i. 
of self-control; in which case, on the reasoning already given, 
the responsibility of the agent is not suspended. How far the 
court, in admeasuring the punishment, is to allow for the 
circumstance that the individual was carried away in an ex- 
traordinary manner by the physical impulse and the external 
incitement, is a matter for independent consideration. 
“Morbid activity of the sexual propensity,” says Dr. Ray, 
“ is unfortunately of such common occurrence, that it has been 
generally noticed by medical writers, though its medico-legal 
importance has never been so strongly felt as it deserves. This 
affection, in a state of the most unbridled excitement, filling 
the mind with a crowd of voluptuous images, and ever hurry- 
ing its victims to acts of the grossest licentiousness, though 
without any lesion of the intellectual powers, is now known 
and described by the name of aidoiomania. We cannot convey 
a better notion of the phenomena of this disorder, than by 
quoting a few examples from Gall, by whom it was first ex- 
tensively observed and its true nature discovered. Its milder 
forms and early stages, when not beyond the control of medical 
and moral treatment, are illustrated in the following cases:— 
“ A robust and plethoric young man came to reside in Vienna. 
Having no liaisons, he was unusually continent, and was soon 
attacked with erotic mania. Gall, pursuing the treatment 
indicated by his peculiar views of the origin of the disease, 
succeeded in restoring him in a few days to perfect health.” 
“ A well educated, clever young man, who, from his infancy 
almost, had felt strong erotic impulses, succeeded in controlling 
them to a certain extent by means of equally strong devotional 
feelings. After his situation permitted him to indulge without 
constraint in the pleasures of love, he soon made the fearful 
discover, that it was often difficult for him to withdraw his 
mind from the voluptuous images that haunted it, and fix it 
on the important and even urgent concerns of his business. 
His whole being was absorbed in sensuality. He obtained 
relief by an assiduous pursuit of scientific objects, and by 
finding out new occupations.” But, if he could obtain “ relief” 
by study, it is hard to see why the “ mania” was viewed as 
“ irresistible;” and the case, therefore, is open to the same 
criticism as others from the same source which are invoked so 
598 BOOK I.] 
“ EROTOMANIA.” 
599 
constantly as proof-cases of “ monomania.” Gall, with all his 
charms of style, was rather a gossippy and inconclusive anec- 
dotist, than an accurate and exhaustive narrator of facts.(w) 
Pinel gives the following: “A man had creditably tilled 
his place in society till his fiftieth year. He was then smitten 
with an immoderate passion for venereal pleasures; he fre- 
quented places of debauchery, where he gave himself up to the 
utmost excesses, and then returned to the society of his friends, 
to paint the charms of pure and spotless love. Ilis disorder 
gradually increased; his seclusion became necessary; and he 
soon became a victim of furious mania.” This, however, is a 
clear case of mental derangement. 
§ 620. Uterine causes, in women, are largely concerned in 
producing this disease, as a phase of derangement. Women 
whose character has heretofore been of unsuspected purity and 
of fastidious refinement, indulge in loose conversation, if they 
do not give way to loose desires. Sometimes this connects 
itself with abnormal appetites; sometimes with unnatural 
sexual abhorrences, as well as with sexual desires. These 
disorders may be periodical with menstruation; or they may 
accompany the change of life coincident with stoppage of 
menstruation; or they may flow from distinct uterine disease. 
Hut however this may be, just so far as the act under investiga- 
tion is the result of physical causes, so far does the patient 
cease to he morally responsible.^;) 
§ 621. Under this head may be considered those cases of 
morbid erotic impulses which spend themselves on unnatural 
objects. The more common of these are those which the 
domestic history of classic antiquity makes familiar to us, and 
which St. Paul adverts to so forcibly in the first chapter of 
the Epistle to the Romans. To what extent these unnatural 
passions were carried is illustrated by the paintings in at least 
one of the exhumed chambers of Pompeii. And recent trials 
have shown, that if the same morbid developments are less nu- 
merous at the present day, they are at least equally eccentric. 
(u) See supra, § 594 note (<), and § 595a, as to Dr. Bucknill’s comments. 
(®) See on this subject Dr. Storer’s very valuable treatise on “Insanity in 
■Women,” Boston, 1871, and authorities cited supra, note (t). 
599 600 
MENTAL UNSOUNDNESS. 
[book i. 
Some years since the town of Leipsic was startled by the 
fact that a number of young girls had been assaulted in the 
streets, by a man wrapped in a cloak, who struck a lancet in 
their arms, just above the elbow, and then vanished. It was 
a long time before the perpetrator was discovered. When he 
was at last detected and put on trial, is turned out that he had 
been impelled to these outrages by a morbid sexual impulse— 
that the incision of the lancet had been accompanied with 
seminal emission—and that his whole existence had become 
absorbed in the alternate excitement and depression which 
preceded and succeeded the act.(w) 
The same state of facts was developed in the trial, in 
London, of a man named Williams, for a similar species of 
assault.(;c) 
Similar is the case of Sprague, already cited.(y) 
§ 622. Still more startling were the exposures attending the 
trial of a sergeant in the French army, in 1848. For some 
time previous, dead bodies had been exhumed and had been 
torn to pieces at or near the graves. On closer inspection the 
horrible fact was disclosed that sexual connection had been 
attempted with the female corpses. The guilty party turned 
out to have been a young man scarcely twenty-five, of prepos- 
sessing manner and appearance, and otherwise respectable 
.character. The psychological features were the same as in the 
preceding cases. The act was preceded by uncontrollable 
excitement, and followed by great exhaustion.^) 
§ 623. Fodere tells us of a young monk who, in travelling, 
happened to lodge in a house where a young girl, who was 
thought dead, had just been laid out, and offered to pass the 
night in the chamber where the coffin was, and to watch the 
dead. During the night, having uncovered it for the purpose 
of examination, and still finding in her countenance some 
traces of beauty, he determined to satisfy his lust, although 
the object was not in a condition for exciting desire. Never- 
(w) Wharton’s Cr. Law, § 824. Supra, § 573. 
(«) Lawyer’s Magazine, London, 1792, vol. ii. p. 351. 
(?/) Supra, § 573, note (u). 
(z) Journal of Psychological Med., yol. ii. p. 577. 
600 BOOK I.] 
“ EROTOMANIA.” 
601 
theless he satisfied himself, and departed early in the morning. 
The dead person came to life, however, the next day, and nine 
months afterwards had a child, to the great astonishment of 
herself and parents. The monk about this time arrived in the 
same place, and avowed himself the parent of the child, and 
married the mother after throwing off the vows, which he 
proved he had been forced to pronounce. 
§ 624. The following fact, taken from Bri&rre de Boismont, 
shows a more permanent perversion, and reveals a settled 
pathologic condition. A man was arrested in a small town 
for a crime which no one believed, but which, however, was 
proved at the trial. A young girl, sixteen years old, belonging 
to one of the first families of the town, had just died. A part 
of the night had passed, when the noise of a piece of furniture 
falling in the room where the dead person lay was heard. 
The mother, whose chamber was next to it, immediately ran 
there, and, in entering, saw a man escaping in his shirt from 
the bed of her daughter. Her fright caused her to utter loud 
cries, which brought around her all the persons of the house- 
hold. They seized the intruder, who appeared almost insen- 
sible to everything passing around him, and who answered 
but confusedly to the questions addressed him. The first idea 
w’as that it was a robber; but his dress and certain signs 
directed suspicion in another direction, and it was soon per- 
ceived that the young girl had been deflowered and polluted 
several times. It was proved that the guard had been bribed; 
and soon other revelations showed that this was not the first 
time the prisoner, who had received a good education, was in 
easy circumstances, and belonged to a good family, had per- 
formed the act. The trial proved that he had frequently 
before gained access to the bed of young dead women, and 
there given himself up to his detestable passion.(a) 
§ 625. Psychologically, it is scarcely necessary here to repeat 
what has been demonstrated as to other pretended “ mono- 
manias,” that there is no such form of insanity as “ Eroto- 
mania,” consisting of insanity of the sexual impulses, all the 
rest of the individual so affected remaining sane. Ho doubt 
(a) See Renaudin sur les Maladies Mentales, p. 764, Paris, 1854. 
601 602 
MENTAL UNSOUNDNESS. 
[book i. 
sexual anomalies are constant incidents of insanity, and for 
them an insane person is not penally responsible. But, in all 
cases where the mind is sane, the offender against laws pro- 
hibiting sexual offences is, on ethical as well as psychological 
and juridical grounds, to be held penally responsible. And 
this results from the position, heretofore fully sustained,{b) 
that where, among reasoning beings, there is no controlling 
moral sense, it is the duty of the state, by education and 
general penal laws, to see that such moral sense be created. 
{(f) “ Pseudonomania” {morbid lying propensity). 
§ 626. By what process that which in its elementary stage 
is a mere negation, i. e. the incapacity so generally noticeable 
in very young children of accurate narration, is concluded to 
be a mania, it would be difficult to say. But so it is, and so 
is this tendency defined by Dr. Ray.(c) “ An inordinate pro- 
pensity to lying,” “is also of no uncommon occurrence in 
society; and most of the readers of this work have probably 
met with instances of it in people whose morals in other re- 
spects were irreproachable, and whose education had not been 
neglected. The maxim of Jeremy Bentham, that it is easier 
for men to speak the truth, and therefore they are more in- 
clined to do so than to utter falsehood, seems, in them, to be 
completely reversed, for they find nothing more difficult than 
to tell the truth. In repeating a story which they have heard 
from others, they are sure to embellish it with exaggerations 
and additions, till it can scarcely be recognized, and are never 
known to tell the same story twice alike. Hot even is the 
slightest groundwork of truth necessary, in order to call forth 
the inventions of perverted minds; for they as often flow spon- 
taneously, in the greatest profusion, as when based on some 
little foundation in fact. This propensity seems to result from 
an inability to tell the truth, rather than from any other cause; 
as it can be traced to no adequate motive, and is often indulged 
when truth would serve the interest of the individual better. 
Like that last mentioned, it is liable to degenerate into unequi- 
vocal mania, of which it is sometimes a preliminary symptom, 
(6) Supra, §§ 115, 188, 403. 
602 
(c) Ray on Insanity, p. 193. BOOK I.] 
“ PSEUDONOMANIA.” 
603 
and is also quite a common feature in this disease—a circum- 
stance which Rush considers as proof of its physical origin.” 
§ 627. Dr. Rush more philosophically traces this habit, for 
such it should be more properly called, to voluntary adoption. 
“ There are many instances of persons of sound understandings, 
and some of uncommon talents, who are affected with this 
lying disease in the will. It differs from exculpative, fraudu- 
lent, and malicious lying, in being influenced by none of the 
motives of any of them. Persons thus diseased cannot speak 
the truth upon any subject, nor tell the same story twice in 
the same way, nor describe anything as it has happened to 
other people. Their falsehoods are seldom calculated to injure 
any body but themselves, being for the most part of a hyper- 
bolical or boasting nature; but now and then they are of a 
mischievous nature, and injurious to the characters and pro- 
perty of others. That it is a corporal disease I infer from its 
sometimes appearing in mad people who are remarkable for 
veracity in the healthy states of their minds, several instances 
of which I have known in the Pennsylvania Hospital. Per- 
sons affected with this disease are often amiable in their tem- 
pers and manners, and sometimes benevolent and charitable 
in their dispositions. Lying as a vice is said to be incurable. 
The same thing may be said of it as a disease, when it appears 
in adult life. It is generally the result of defective education. 
It is voluntary in childhood, and becomes involuntary, like certain 
muscular actions, from habit. Its only remedy is bodily 'pain in- 
flicted by the rod, or confinement, or abstinence from food,; for 
children are incapable of being permanently influenced by 
appeals to reason, natural affection, gratitude, or even a sense 
of shame.”(<7) 
§ 628. fSTo doubt the insane are irresponsible for the untruths 
they state, when such untruths are involuntary, e. g. the result 
of delusion; but that they can be rightly made responsible for 
voluntary untruths, and by correction may be checked in the 
utterance of such untruths, the ordinary discipline of lunatic 
asylums shows. 
§ 629. But with the sane, while it is unquestionable that 
(d) Rush on the Mind, p. 262. 
603 604 
MENTAL UNSOUNDNESS. 
[book i. 
falsehood may become a habit, yet, like all other bad habits, 
no matter how inveterate, it brings with it no irresponsibility. 
Were it otherwise, a chief motive in preventing the habit 
from becoming fixed would be removed ; and, in fact, a power- 
ful stimulus given in the other direction. The law would 
then virtually say, “learn to lie—let the habit become incura- 
ble—and then you can get goods by false pretences without 
any danger of punishment; and even to an action for restitu- 
tion or for damages, you can plead that you are irresponsible, 
and therefore protected against suit.” But the law says no 
such thing. It sternly but wisely declares that every sane 
man is responsible, criminally and civilly, for his statements; 
and, if he is habitually false, this “habit,” in a criminal suit, 
is only viewed as aggravating his guilt. Truthfulness among 
sane persons, when not actually existing, must be created by 
the force of general penal laws.(e) 
(A2) “ Oikeiomania” {morbid state of domestic affections). 
§ 630. At the outset it is proper to state that while this 
state is often a sign of general insanity, it has no existence, 
either in sound psychology or law, as an independent “ mono- 
mania.” Of this, in its general shape, Prichard thus speaks: 
“ There are many individuals living at large, and not entirely 
separated from society, who are affected in a certain degree by 
this modification of insanity. They are reputed persons of 
singular, wayward, and eccentric character. An attentive 
observer may often recognize something which leads him to 
entertain doubts of their entire sanity ; and circumstances are 
sometimes discovered, on inquiry, which assist in determining 
his opinion. In many instances it is found that there is an 
hereditary tendency to madness in the family, or that several 
relatives of the person affected have labored under disease of 
the brain. The individual himself is discovered, in a former 
period of life, to have sustained an attack of madness of a 
decided character. His temper and disposition are found, on 
inquiry, to have undergone a change, to be not what they 
were previously to a certain time; he has become an altered 
604 
(e) See supra, §§ 115, 188, 403. BOOK I.] 
“ OIKEIOMANIA. ” 
605 
man; and this difference has perhaps been noted from the 
period when he sustained some reverse of fortune which 
deeply affected him, or since the loss of some beloved relative. 
In other instances, the alteration in his character has ensued 
immediately on some severe shock which his bodily constitu- 
tion has undergone. This has either been a disorder affecting 
the head, a slight attack of paralysis, a fit of epilepsy, or 
some fever or inflammatory disorder, which has produced a 
perceptible change in the habitual state of the constitution. 
In some cases the alteration in temper and habits has been 
gradual and imperceptible, and it seems only to have consisted 
in an exaltation or increase of peculiarities which were always 
more or less natural and habitual.”(y) 
§ 631. Very often this domestic perversity is associated with 
the most complacent benignity out of doors. Zimmerman, 
whilst he was inculcating and professing the most serene be- 
nevolence, was, by his tyranny, driving his son into madness, 
and making his daughter an outcast from home. Goethe—no 
inapt observer of human nature—says, “ Zimmerman’s harsh- 
ness towards his children was the effect of hypochondria—a 
sort of madness or moral assassination to which he himself fell 
a victim after sacrificing his offspring.”(A) 
(#) Cited, Ray on Insanity, pp. 168-9. 
See Feuclitersleben’s views on this point. Pinciples of Medical Psycho- 
logy, being the outlines of a Course of Lectures by Baron von Feuclitersleben, 
M.D., Vienna, 1845. Translated from the German by the late H. Evans 
Lloyd, Esq. Revised and edited by G. B. Babington, M.D., F.R.S., etc. 
London : printed for the Sydenham Society, 1847, p. 204. 
(7i) Dean Swift’s life furnishes a striking illustration of this species of de- 
rangement of the domestic affections. By the indulgence of this morbid 
tendency to torture the object of his most cherished love, he first succeeded 
in crushing under the weight of despair a woman whom he really loved, and 
then, by the recoil, in subjecting himself to that most miserable of all fates, 
that of an insane old age. Take, as a scene in the first awful drama, the fol- 
lowing narrative by Mr. Sheridan : “A short time before Stella died,” says 
he, “ a scene passed between the Dean and her, an account of which I had 
from my father, and which I shall relate with reluctance, as it seems to bear 
more hard on Swift’s humanity than any other point of his conduct in life. 
As she found her final dissolution approaching, a few days before it happened, 
in the presence of Dr. Sheridan, she addressed Swift in the most earnest and 
pathetic terms to grant her dying request, ‘ that, as the ceremony of marriage 
had passed between them, in order to put it out of the power of slander to be 
605 606 
MENTAL UNSOUNDNESS. 
[book I. 
§ 632. Illustrations of this phase will be found in the follow- 
ing sections. At present it is sufficient to call attention to one 
busy with her fame after death, she adjured him, by their friendship, to let 
her have the satisfaction of dying, at least—though she had not lived—his 
acknowledged wife.’ Swift made no reply, but, turning on his heel, walked 
silently out of the room, nor ever saw her afterwards during the few days 
she lived. This behavior threw her into unspeakable agonies, and for a time 
she sunk under the weight of so cruel a disappointment.” 
No wonder was it that, when under the influence of the remorse which was 
too late awakened, his powerful sensibilities were aroused to the full con- 
sciousness of his guilt, he would beat his forehead for night after night, and 
stride to and fro in his deserted apartment, until at last the only change be- 
came that from delirium to melancholy, and from melancholy to delirium. 
Dr. Winslow gives us the following glimpses of the closing scenes :— 
“The most minute account of this melancholy period is given by Dr. 
Delaney:— 
“ ‘In the beginning of the year 1741 his understanding was so much im- 
paired, and his passion so greatly increased, that he was utterly incapable of 
conversation. Strangers were not permitted to approach him, and his friends 
found it necessary to have guardians appointed of his person and estate. 
Early in the year 1742 his reason was wholly subverted, and his rage became 
absolute madness. The last person wliow he knew was Mrs. Wliiteaway, 
and the sight of her, when he knew her no longer, threw him into fits of 
rage so violent and dreadful, that she was forced to leave him ; and the only 
act of kindness that remained in her powrer was to call once or twice at the 
deanery to inquire after his health, and see that proper care was taken of him. 
Sometimes she would steal a look at him when his back was towards her, but 
did not venture into his sight. He would neither eat nor drink when the 
servants were in the room. Ilis meat, which was served up ready cut, he 
would sometimes suffer to stand an hour upon the table before he would touch 
it, and at last he would eat it walking ; for during this miserable state of mind 
it was his constant custom to walk ten hours a day. 
“ ‘In October, 1742, after his frenzy had continued several months, his left 
eye swelled to the size of an egg, and the lid appeared to be so much inflamed 
and discolored, that the surgeon expected it would mortify ; several large 
boils also broke out on his arms and body. The extreme pain of this tumor 
kept him waking near a month ; and during one week it was with difficulty 
that five persons could prevent him from tearing out his eyes. Just before 
the tumor perfectly subsided and the pain left him, he knew Mrs. Wliiteaway, 
took her by the hand, and spoke to her with his former kindness ; that day 
and the following he knew his and surgeon and all his family, and 
appeared to have so far recovered his understanding and temper, that the 
surgeon was not without hopes that he might once more enjoy society and be 
amused with the company of his old friends. This hope, however, was but 
of short duration ; for a few days afterwards he sank into a state of total in- 
sensibility, slept much, and could not, without great difficulty, he prevailed 
606 BOOK I.] 
“OIKEIOMANIA.” 
[§ 633 
feature, which is thus admirably sketched by Dr. Mayo: “ Mari- 
tal unkindness is subversive of soundness of mind in the person 
on whom it is exercised; and exercised it is in a thousand ways in 
this country, without violence being had recourse to. The state 
of the law, as Mr. Dickens well observes, and terrifically proves, 
is unprotective of wives. But the mischief is not unavenged; 
and here the case of the husband retributively commences. 
Many men are living in a state of continuous and exhausting 
remorse, under the consciousness that this system of torture 
is being carried on by them. For, when once the habit is 
formed, they can neither shake it otf, nor bear their self-con- 
sciousness under it. 
‘ Culpam poena premit comes.’ 
I need not speak of their retrospects, if they should outlive 
the object of their tyranny. ”(z) 
§ 633. “ A very common feature of moral mania,” says Dr. 
Winslow, “ is a deep perversion of the social affections, whereby 
the feelings of kindness and attachment that flow from the 
relations of father, husband, and child, are replaced by a per- 
petual inclination to tease, worry, and embitter the existence 
of others. The ordinary scene of its manifestations is the 
patient’s own domestic circle, the peace and happiness of which 
are effectually destroyed by the outbreakings of his ungoverna- 
ble temper, and even by acts of brutal ferocity. Frederick 
William of Prussia, father of Frederick the Great, undoubt- 
edly labored under this form of moral mania; and it furnishes 
a satisfactory explanation of his brutal treatment of his son, 
and his utter disregard for the feelings or comfort of any other 
member of his family. About a dozen years before his death, 
his health gave way under his constant debauches in drunken- 
ness ; he became hypochondriacal, and redoubled his usual 
religious austerities. He forbade his family to talk of any 
subject but religion, read them daily sermons, and compelled 
on to walk across the room. In this state of hopeless imbecility he is said to 
have remained silent a whole year. In 1774 he spoke once or twice to his 
servant, after which he remained perfectly silent until the latter end of 
October, 1775, when he expired, in the 78th year of his age.’ ” 
(«) Mayo on Medical Testimony in Lunacy, pp. 137, 138. 
607 608 
MENTAL UNSOUNDNESS. 
[book I. 
them to sing, punishing with the utmost severity any inatten- 
tion to these exercises. The prince and his elder sister soon 
began to attract a proportionate share of his hostility. lie 
obliged them to eat and drink unwholesome or nauseous arti- 
cles, and even spit in their dishes, addressing them only in the 
language of invective, and at times endeavoring to strike them 
with his crutch. About this time he attempted to strangle 
himself, and would have accomplished his design had not the 
queen come to his rescue. His brutality towards the prince 
arrived to such a pitch, that he one morning seized him by the 
collar as he entered his bed-chamber, and began to beat him 
with a cane in the most cruel manner, till obliged to desist 
from pure exhaustion. On another occasion shortly after, he 
seized his son by the hair, and threw him on the ground, beat- 
ing him till he was tired, when he dragged him to a window, 
apparently for the purpose of throwing him out. A servant, 
hearing the cries of the prince, came to his assistance, and de- 
livered him from his hands. Hot satisfied with treating him 
in the most barbarous manner, he connived at the prince’s 
attempts to escape from his tyranny, in order that he might 
procure from a court-martial a sentence of death; and this even 
he was anxious to anticipate by endeavoring to run him 
through the body with a sword. Hot succeeding in procuring 
his death by judicial proceedings, he kept him in confinement, 
and turned all his thoughts towards converting him to Chris- 
tianity. At this time, we first find mention of any delusion 
connected with his son, though it probably existed before. 
In his correspondence with the chaplain to whom he had in- 
trusted the charge of converting the prince, he speaks of him 
as one who had committed the most heinous sins against God 
and the king, as having a hardened heart, and being in the 
fangs of Satan. Even after he became satisfied with the re- 
pentance of the prince, he showed no disposition to relax the 
severities of his confinement. He was kept in a miserable 
room, deprived of all the comforts and many of the necessa- 
ries of life, denied the use of pens, ink, and paper, and allowed 
scarcely food enough to prevent starvation. His treatment of 
the princess was no less barbarous. She was also confined, 
and every efiort used to make her situation thoroughly 
608 BOOK I.] 
“OIKEIOMANIA.” 
609 
wretched; and though, after a few years, he relaxed his perse- 
cution of his children, the general tenor of his conduct towards 
his family and others evinced little improvement in his dis- 
order till the day of his death.”(j) 
§ 634. The wife of John Wesley was affected with this 
“ monomaniaor, to speak more properly, was in the habit 
of giving way to a vicious and perverse temper, which brought 
its retribution at last in the misery it inflicted on herself. 
“The worst part of Mrs. Wesley’s conduct,” says Watson, in 
his life of Wesley, “ and which only the supposition of a degree 
of insanity, excited by jealousy, can palliate, was that she in- 
terpolated several letters, which she had intercepted, so as to 
make them bear a bad construction; and, as Mr. Wesley had 
always maintained a large correspondence with all classes of 
persons, and among others, with pious females, in some of 
whose letters there were strong expressions of Christian affec- 
tion, she availed herself of this means of defaming him. Some 
of these she read to different persons in private, and especially 
to Mr. Wesley’s opponents and enemies, adding extempore 
passages in the same tone of voice, hut taking care not to allow 
the letters themselves to be read by the auditors; and in one 
or two instances she published interpolated or forged letters in 
the public prints. How he conducted himself amidst these 
vexations, the following passage in a letter from Miss Wesley 
to a friend, written a little before her death, will show. They 
are at once important, and explanatory of the kind of annoy- 
ance to which this unhappy marriage subjected her uncle, and 
as containing an anecdote strongly illustrative of his charac- 
ter :— 
“ I think it was in the year 1775 my uncle promised to take 
me with him to Canterbury and Hover. About this time Mrs. 
Wesley had obtained some letters which she used to the most 
injurious purposes, misinterpreting spiritual expressions, and 
interpolating words. These she read to some Calvinists, and 
they were to be sent to the Morning Post. A Calvinist gen- 
tleman, who esteemed my father and uncle, came to the former, 
(j) Vide Lord Dover’s Life of Frederick ; Winslow’s Anatomy of Suicide ; 
pp. 233, 234, 235. 
vol. i.—39 
609 610 
MENTAL UNSOUNDNESS. 
[book i. 
and told him that, for the sake of religion, the publication 
should be stopped, and Mr. Wesley be allowed to answer for 
himself. As Mrs. Wesley had read but did not show the let- 
ters to him, he had some doubts of their authenticity; and 
though they were addressed to Mr. John Wesley, they might 
be forgeries; at any rate he ought not to leave town at such a 
juncture, but clear the matter satisfactorily. 
“ My dear father, to whom the reputation of my uncle was 
far dearer than his own, immediately saw the importance of 
refutation, and set off to the Foundery to induce him to post- 
pone his journey, while I, in my own mind, was lamenting 
such a disappointment, having anticipated it with all the im- 
patience natural to my years. Hever shall I forget the man- 
ner in which my father accosted my mother on his return 
home. ‘ My brother,’ says he, ‘ is indeed an extraordinary 
man. I placed before him the importance of the character of 
a minister; the evil consequences which might result from his 
indifference to it; the cause of religion ; stumbling-blocks cast 
in the way of the weak; and urged him by every relative and 
public motive to answer for himself, and stop the publication. 
His reply was, Brother, when I devoted to God my ease, my 
time, my life, did I except my reputation ? Ho. Tell Sally 
I will take her to Canterbury to-morrow.’” 
“I ought to add, that the letters in question were satisfac- 
torily proven to be mutilated, and no scandal resulted from 
his trust in God. 
“ Some of these letters, mutilated, interpolated, or forged by 
this unhappy woman, have got into different hands and are 
still preserved. In the papers of the Wesley family, recently 
collected, there are, however, sufficient materials for full ex- 
planation of the whole case in detail; but as Mr. Wesley him- 
self spared it, no one will, I presume, ever further disturb this 
unpleasant affair, unless some publication on the part of an 
enemy, for the sake of gain, or to gratify a party feeling, 
should render it necessary to defend the character of this holy 
and unsuspecting man.”(£) 
(k) The following is the inscription on a monument erected in Ilorsley 
Down church, in Cumberland, England :— 
610 BOOK I.] 
“ OIKEIOMONIA.” 
[§ 634 
This species of insanity, supposing mental derangement to 
Here lies the bodies of 
Thomas Bond and Mary his wife. 
She was temperate, chaste, and charitable. 
But 
She was proud, peevish, and passionate. 
She was an affectionate wife, and a tender mother. 
But 
Her husband and child whom she loved, seldom saw her countenance without a dis- 
' gusting frown, 
Whilst she received visitors whom she despised, with an endearing smile. 
Her behavior was discreet towards strangers, 
But 
Imprudent in her family. 
Abroad her conduct was influenced by good breeding, 
But 
At home by ill temper. 
She was a professed enemy to flattery, and was seldom known to praise or commend ; 
But 
The talents in which she principally exoelled 
Were difference of opinion, and discovering flaws and 
Imperfections. 
She was an admirable economist, 
And without prodigality. 
Dispensed plenty to every person in her family, 
But 
Would sacrifice their eyes to a farthing candle. 
She sometimes made her husband 
Happy with her good qualities, 
But 
Much more frequently miserable with her 
Many failings. 
Insomuch that in thirty years’ cohabitation, 
He often lamented that 
Maugre all her virtues, 
He had not on the whole enjoyed two years 
Of matrimonial comfort. 
At length 
Finding she had lost the affection of her husband, as well as the regard of her neigh- 
bors, family disputes having been divulged by servants, 
She died of vexation, July 20, 1768, 
Aged 48 years. 
Her wornout husband survived her four months and two days, and departed this life 
November 28, 1768, 
In the 54 year of his age. 
William Bond, brother to the deceased, 
Erected this stone as a 
Weekly monitor to the wives of this parish, 
That they may avoid the infamy of having 
Their memories handed down to posterity 
With a patchwork character. 
611 § 637] 
[BOOK I. 
MENTAL UNSOUNDNESS. 
be substantively proved, will invalidate a will made under its 
immediate influence.^) 
§ 635. It is hardly necessary to repeat that “morbid do- 
mestic feeling” is not to be viewed as a distinct “monomania,” 
capable of psychological proof as such. Frequently it is a 
mark of insanity. But with sane persons its existence is the 
just subject of moral and social as well as of penal reproba- 
tion. It is true that the law may be unable to reach the par- 
ticular offences into which this form of evil temper runs. It 
carries with it, however, as has been said, its own accuser and 
condemner in the misery to self to which it leads. And, so 
far as it exhibits itself in overt acts, the tendency is one which 
it is the duty and within the jurisdiction of the State, by 
general penal laws, to repress.(m) 
O’2) “Suicidal mania” {morbid 'propensity to self-destruction). 
§ 636. That this propensity may, in the eye of the law, co- 
exist with sanity, has been already shown^m1) To what ex- 
tent suicide avoids a policy of life insurance, has been also the 
subject of prior discussion.(n) 
§ 637. “ The pathological and etiological history of suicide,” 
says Griesinger, “ does not appertain entirely to the province 
of mental medicine; in fact, whatever certain scientific 
authorities may assert, we are not warranted in coming to the 
conclusion that suicide is always a symptom or a result of in- 
sanity. There is no insanity present where the feeling of dis- 
gust with life is in exact relation to the actual circumstances; 
where evident moral causes exist which sufficiently account 
for the act; when the resolution has been deliberately made, 
and might have been abandoned had the circumstances 
changed; and in which we discover no other symptom of 
mental derangement. 
“When a man of very delicate feelings puts an end to his 
existence, that he may not survive the loss of his honor, or of 
some other highly valued possession which forms an intimate 
part of his intellectual being—when a man prefers death to 
(?) See supra, §§ 34-60. (to) See supra, §§ 115, 188, 403. 
(to1) Supra, § 241. (n) Supra, §§ 228-241. 
612 BOOK I.] 
“SUICIDAL mania.” 
[§ 687 
a miserable, contemptible life, full of mental and physical ills 
—morality, indeed, may call him to account for the deed, but 
there exists no ground on which we can consider him insane; 
the abhorrence of life and the idea of self-annihilation cor- 
respond to the intensity of the painful impressions which bear 
upon the individual, and it is after deliberate reflection that 
the act is resolved upon and perpetrated. 
“ But the cases which come under this category are the rarest; 
more frequently the tendency to commit suicide depends either 
upon fully developed melancholia, with all its usual symptoms, 
or (and this is more frequent) on a state closely bordering upon 
melancholia—of moderate but at the same time general pain- 
ful perversion of the feelings. 
“ The apparently deliberate and cold-blooded act of suicide 
can, when considered jper se, no more prove the non-existence 
of insanity than any other deliberate act committed in mental 
disease. 
“ The disposition to originate those states of mental suffering 
which most generally coincide with exhaustion, coldness, and 
deadening of the reaction of the feelings, is precisely the same 
as the disposition to mental diseases. When these have once 
appeared, they become fixed, and rule the individual the more 
easily according as a feeble ego offers only slight resistance to 
them (p. 51); they therefore frequently appear as essential re- 
sult of a previously weak character. They are, however, essen- 
tially distinguished from the abhorrence of life which is the 
result of certain explicable moral causes, by their internal 
origin, by the want of sufficient moral causes to account for 
the act; frequently by their evident appearance in consequence 
of some physical disease, by presenting periodic exacerbations 
without any moral cause; and, finally, by being sometimes 
undoubtedly hereditary. When the whole psychical life is 
governed by this perversion of the feelings, there arise no 
limiting or restricting ideas and impulses to resist the thought 
be it spontaneous or suggested, of self-destruction; or these 
ideas and impulses soon become worn out and exhausted, 
owing to the existence of those which constantly, and with 
the persevering obstinacy of all other melancholic dispositions 
of this kind, urge themselves upon the ego. 
613 § 637] 
MENTAL UNSOUNDNESS. 
[book i. 
“Indeed, the more insignificant the outward motives to the 
deed, the more likely are we to find, in the antecedent history 
of the individual, causes, or even certain symptoms, of inci- 
pient insanity; and the more barbarous and the more extraor- 
dinary the means employed for the perpetration of the deed, 
the more are we warranted in considering it to be a result 
of some morbid perversion of the faculties. ”(o) 
(o) Griesinger’s Mental Patliol., Syden. ed. (1867) § 125. 
Sudden appearance of attempts at suicide with obscuring of the conscious- 
ness and loss of all recollection, as added to the above.—“A lady still alive, and 
now (1821) forty-three years of age, had hitherto lived in comfortable cir- 
cumstances, and, excepting occasional hysteric headaches and dysmenorrhcea, 
in the constant enjoyment of good health. Up to the year 1804 she had never 
met with a misfortune. Her husband loved her tenderly, her children, whom 
she herself had partly nursed, were strong and healthy, and her circumstances 
easy. On the 24tli July of this year, however, after she had suffered for 
several days before from her ordinary headache, but which by this time had 
disappeared, she was sitting, at half-past three o’clock, afternoon, in her own 
house, apparently well pleased, and engaged in knitting. Suddenly, and 
without the least provocation, she sprang up and called out, ‘ I must drown 
myself! I must drown myself!’ Whereupon she ran straight to the moat 
which surrounded the town, and threw herself into it. She was immediately 
taken out of the water and carried, apparently dead, to her home. A doctor 
was rapidly summoned, and he speedily restored animation. She, however, 
remained mute, and stared with widely opened eyes fixedly on one spot, pay- 
ing no attention to the events which passed around her. 
“ I saw her for the first time on the evening of the 27th of July. She had, 
it is true, during the time which had intervened since the attack, calmly sub- 
mitted to all that was done to her, and even swallowed some medicine ; but 
she had not spoken, nor partaken of food or drink—she had not slept, nor 
shown interest in anything. When I saw her late at night, she was lying in 
bed, and sighed continually. When I spoke to her, she started and pro- 
nounced my name. A candle was brought, and when she saw me she 
exclaimed, ‘ My God! where am I, and what has happened to me ?’ and 
commenced to weep violently. I soon calmed her. After she had recognized 
and spoken to her husband, and inquired about her children, she fell asleep 
and rested undisturbed till morning. 
“ On awaking, she at once cheerfully inquired about all that had happened, 
and was astonished to hear of her attempt to drown herself, and of the 
danger into which she had thereby fallen. On my appearance next morning 
she larfghingly asked what I actually thought and had said of her, and was 
anxious to know how she could have come to the foolish idea of drowning 
herself without being conscious of the occurrence or knowing any cause 
for it. 
“ Since then she has had several children, and many things have occurred 
614 BOOK I.] 
“SUICIDAL MANIA.” 
[§ 638 
§ 638. “ The most striking peculiarity of melancholia,” says 
Abercrombie, “ is the prevailing propensity to suicide ; and 
to disturb her equanimity, but she lias never had any such extravagant ideas. 
With the exception of occasional attacks and dysmenorrhea, 
she has always continued healthy, cheerful, and gay.” (Mende, in Henke, 
Zeitschrift fur Staatsarrneikionde, 1821.) 
Tendency to suicide caused by concealed hallucinations.—“A young man of 
large fortune had been addicted to onanism, but, nevertheless, continued to 
enjoy pretty good health. He had no other cause of annoyance than the re- 
membrance of the Revolution, the principles of which he disapproved of, and 
had even on several occasions attempted to commit suicide by shooting him- 
self with a pistol, and would use no other means. He remained for two years 
under my care, during which time he did not speak one word of nonsense ; 
he was cheerful, amiable, well informed, and sometimes said to me, ‘ Give 
me a pistol!’ ‘ Why would you kill yourself?’ ‘Because all seems tiresome.’ 
It was not till after the lapse of two years that he informed me that for a long 
time he had been subject to hallucinations of hearing and of sight. He 
believed that he was followed by policemen, whom he constantly heard and 
saw, even between the walls of his apartment, which he believed were double, 
and consisted of two movable partitions, so that one could hear and see all 
which he said or did.” (Esquirol, Maladies Mentales, i. p. 555.) 
Vague impulse to commit suicide caused by a violent f right during a state of 
bodily iceakness.—“N , a tailor, eet. thirty-one, had fallen into a state of 
great exhaustion in consequence of onanism, and had afterwards to submit to 
repeated courses of treatment by mercury. On the outbreak of cholera in the 
year 1881* he was so terrified by the report that the patients were drawn from 
their dwellings with tongs, and otherwise roughly handled, that he fell into a 
swoon and believed that he was seized with cholera. At first he could not 
work during the day nor sleep at night, and the idea that he also must sub- 
ject himself to treatment so frightful set him quite beside himself. He even 
spent the night with friends for fear of being carried off to a cholera hospital. 
When at work, his limbs trembled from anxiety ; this he considered to be a 
premonition of cholera, having heard that fright predisposed to it. His appetite 
left him, and besides he was afraid to eat too much, as too much food and many 
kinds of it seemed hurtful to him; indeed, he weakened his digestion through 
abstinence. Being perpetually tormented by fears, he slept little, and dreamed 
a great deal of deaths and funerals. During the day he could not venture 
out, for fear of the disease and of the police. This torment threw him into 
a state of mind so irritable, that the sight of cattle going to the slaughter- 
house disturbed him very much, because he represented to himself how the 
knife would be plunged into their throats. At last, when he had somewhat 
recovered from this anxiety, he one day heard a shot go off; whereupon he 
became very much afraid, because he thought some one had committed 
suicide. On the same evening, he learned that a person in the neighborhood 
had cut his throat. His terror was now so great that he could not sleep at 
night, because he kept constantly considering how the suicide had committed 
615 § 638] 
MENTAL UNSOUNDNESS. 
[book i. 
there are facts connected with this subject which remarkably 
illustrate what may be called the philosophy of insanity. 
When the melancholic hallucination has fully taken posses- 
sion of the mind, it becomes the sole object of attention, 
without the power of varying the impression, or of directing 
the thoughts to any facts or considerations calculated to remove 
or palliate it. The evil seems overwhelming and irremediable; 
admitting neither of palliation, consolation, or hope. For the 
process of mind calculated to diminish such an impression, or 
even to produce the hope of a palliation of the evil, is precisely 
that exercise of mind which, in this singular condition, is 
lost or suspended, namely, a power of changing the subject of 
thought, of transferring the attention to other facts and con- 
siderations, and of comparing the mental impression with these, 
and with the actual state of external things. Under such a 
conviction of overwhelming and hopeless misery, the feeling 
naturally rises, of life being a burden, and this is succeeded 
by a determination to quit it. When such an association has 
once been formed, it also fixes itself upon the mind, and fails 
to be corrected by those considerations which ought to remove 
it. That it is in this manner the impression arises, and not 
from any process analogous to the determination of a sound 
mind, appears, among other circumstances, from the singular 
manner in which it is often dissipated; namely, by the acci- 
dental production of some new impression, not calculated in 
any degree to influence the subject of thought, but simply 
to give a momentary direction of the mind to some other 
feeling. Thus a man, mentioned by Pinel, had left his house 
in the night, with the determined resolution of drowning 
himself, when he was attacked by robbers. He did his best 
to escape from them, and, having done so, returned home, the 
the deed—what part of his body had he wounded ? In rain he attempted 
to banish these thoughts, which were continually arising anew on the slightest 
occasion ; for example, by a headless figure in the Royal Museum, which 
represented in his eyes a beheaded individual. 
“ If a knife lay before him it seemed to him as if he must cut his throat, in 
spite of his horror of it and his love of life. When a knife was put into his 
hand, he trembled and threw it from him, or laid it under his plate that he 
might not see it. ’1 
616 BOOK I.] 
“SUICIDAL MANIA.” 
617 
resolution of suicide being entirely dissipated. A woman, 
mentioned, I believe, by Dr. Burrows, had her resolution 
changed in the same manner, by something falling on her head 
after she had gone out for a similar purpose.” 
“ A very singular modification occurs in some of these cases. 
With the earnest desire of death, there is combined an impres- 
sion of the criminality of suicide; but this, instead of correct- 
ing the hallucination, only leads to another and most extraor- 
dinary mode of effecting the purpose; namely, by committing 
murder, and so dying by the hand of justice. Several instances 
are on record in which this remarkable mental process was 
distinctly traced and avowed, and in which there was no 
mixture of malice against the individuals who were murdered. 
On the contrary, they were generally children; and in one of 
the cases the maniac distinctly avowed his resolution to commit 
murder, with the view of dying by a sentence of the law, and, 
at the same time, his determination that his victim should be 
a child, as he should thus avoid the additional guilt of sending 
a person out of the world in a state of unrepented sin. The 
mental process in such a case presents a most interesting subject 
of reflection. It appears to be purely a process of association, 
without the power of reasoning. I should suppose that there 
had been at a former period, during a comparatively healthy 
state of the mental faculties, a repeated contemplation of 
suicide, which had always been checked by an immediate 
conviction of its dreadful criminality. In this manner, a 
strong connection had been formed, which, when the idea of 
suicide afterward came into the mind during a state of insanity, 
led to the impression of its heinousness, not by a process of 
reasoning, but by simple association. The subsequent steps 
are the distorted reasonings of insanity, mixed with some 
previous impression of the safe condition of children dying in 
infancy. This explanation, I think, is strongly countenanced 
by the consideration, that, had the idea of the criminality of 
suicide been in any degree a process of reasoning, a corre- 
sponding conviction of the guilt of murder must have followed 
it. I find, however, one case which is at variance with this 
hypothesis. The reasoning of that unfortunate individual 
was, that, if he committed murder and died by the hand of 
617 618 
MENTAL UNSOUNDNESS. 
[book i. 
justice, there would be time for making his peace with the 
Almighty, between the crime and his execution, which would 
not be the case if he should die by suicide. This was a species 
of reasoning—but it was purely the reasoning of insanity. ”(p) 
(p) Dr. Winslow, in liis interesting work on Suicide, gives us tlie follow- 
ing remarkable cases: “The case now about to be recorded presents some 
peculiarly interesting features. An English lady, moving in the first circles 
of society, went in company with her friends to the opera at Paris. In the 
next box sat a gentleman who appeared, from the notice he took of the lady, 
to be enamored of her. The lady expressed herself annoyed at the observa- 
tion which she had attracted, and moved to anpther part of the box. The 
gentleman followed the carriage home, and insisted upon addressing the lady, 
declaring that he had had the pleasure of meeting her elsewhere, and that 
one minute’s conversation would convince her of the fact, and do away with 
the unfavorable impression which his apparent rudeness might have made 
upon her mind. As his request did not appear at the moment unreasonable, 
she consented to see him a minute by himself. In that short space of time he 
made a fervent declaration of his affection; acknowledged that desperation 
had compelled him to have recourse to a ruse to obtain an interview, and 
that, unless she looked favorably on his pretensions, he would kill her, and 
then himself. The lady expressed her indignation at the deceit he had prac- 
tised, and said, with considerable firmness, that he must quit the house. He 
did so, retired to his home, and with a lancet opened a vein in his arm. He 
collected a portion of blood in a cup, and with it wrote a note to the lady, 
telling her that his blood was flowing fast from his body, and it should con- 
tinue to flow until she consented to listen to his proposals. The lady, on 
receipt of the note, sent her servant to see the gentleman, and found him, as 
he represented, actually bleeding to death. On the entreaty of the lady, the arm 
was bound up and his life saved. On writing to the .lady, under the impres- 
sion that she would now accept his addresses, he was amazed on receiving a 
cool refusal, and a request that he would not trouble her with any more letters. 
Again driven to desperation, he resolved effectually to kill himself. He ac- 
cordingly loaded a pistol, and directed his steps towards the residence of his 
fair amorosa, when, knocking at the door, he gained admission, and immedi- 
ately blew out his brains. The intelligence was communicated to the lady ; 
she became dreadfully excited, and a severe attack of nervous fever followed. 
When the acute symptoms subsided, her mind was completely deranged. 
Her insanity took a peculiar turn. She fancied she heard a voice command- 
ing her to commit suicide, and yet she appeared to be possessed of sufficient 
reason to know that she was desirous of doing what she ought to be restrained 
from accomplishing. Every now and then she would exclaim ‘ Take away 
the pistol! I won’t hang myself! I won’t take poison!’ Under the im- 
pression that she would kill herself, she was carefully watched ; but, notwith- 
standing the vigilance which was exercised, she had sufficient cunning to con- 
ceal a knife, with which, during the temporary absence of the attendant, she 
618 BOOK I. 
“ DIPSOMANIA.” 
[§ 639 
O'2) “Dipsomania” (morbid propensity for drink). (Trunksucht 
or Saufsucht). 
§ 639. One of the occasional consequences of an indulgence 
in alcoholic drinks is the periodic occurrence of a violent thirst 
for intoxicating liquor; a thirst which is not satisfied until the 
patient has drunk continuously for one, two, or sometimes 
stabbed herself in the abdomen, and died in a few hours. It appears that the 
idea that she had caused the death of another, and that she had it in her power 
to save his life by complying with his wishes, produced the derangement of 
mind under which she was laboring at the time of her death : and yet she 
did not manifest, and it was evident to every body that she had not, the 
slightest affection for the gentleman who professed so much to admire her. 
Possessing, naturally, a sensitive mind, it was easily excited. The peculiar 
circumstances connected with her mental derangement were sufficient to 
account for the delusion under which she labored.” ( Winslow's Anatomy 
of Suicide, pp. 59, 60, 61.) 
“A young lady of considerable beauty was accosted in the street by a strange 
gentleman. She took no notice at first of the unwarrantable liberty; but, on 
finding that he persisted in following her, she attempted, by quickening her 
pace, to escape. Being extremely timid, and having naturally a nervous 
temperament, she was much excited. The person in the garb of a gentleman 
followed her for nearly a mile, and, when he saw that she was home, he 
suddenly turned down a street and disappeared. The young lady expressed 
herself extremely ill soon after she entered the house. A physician was sent 
for, who declared his astonishment at her severe illness from a cause so 
trifling. During the following night she manifested indications of mental 
derangement, with a deposition to commit suicide. A strait-waistcoat was 
procured, and all apprehension of her succeeding in gratifying the propensity 
of self-destruction was removed. Some weeks elapsed before she recovered. 
To all appearance she was perfectly well. She had no recollection of what 
had transpired, and expressed herself amazed when she was told that she 
wished to kill herself. Two months after she left her bed, she was missed. 
Search was made in every direction, but in vain. After a lapse of two days 
she was discovered floating in a pond of water several miles from her home. 
In her pocket was discovered a piece of paper, on which were written the 
following lines: ‘ Oh ! the misery and wretchedness I have experienced for 
the last month, no one but myself can tell. A demon haunts me—life is in- 
supportable. A voice tells me that I am destined to fall by my own hands. I 
leave this world for another, where I hope to enjoy more happiness. Adieu.’ ” 
( Winslow's Anatomy of Suicide, pp. 75, 76. See a very interesting essay 
on the last sentiments of suicides, by Dr. A. Brierre de Boismont, translated 
in the Journal of Psychological Medicine, vol. iv. p. 243. And see also 
Lecture by Dr. Ordronaux, in 20 Am. Journ. of Ins. 369, and see also 3 
Journ. Psyc. Med. 19.) 
619 § 640] 
MENTAL UNSOUNDNESS. 
[book i. 
three days. The passion then subsides, and he remains sober 
for weeks, until another attack of the disease comes on. 
tells us, for instance, of an educated young man who 
was employed by a princely family, who had great confidence 
in him, as a general manager of their household. lie had 
charge, among other things, of the wine-cellar, and this led 
to his indulgence in wine, which gradually matured into a 
passion for strongly alcoholized drinks. About once every 
three months this seized him as a sort of rage. He would 
have baskets of wine, white beer, and rum, brought to his 
chamber, in which he would at such times permit visits only 
from his servant and his physician, and he would drink for 
days, under the influence of intoxication, until disgust and 
nausea intervened, and drinking lost its zest. He would then 
reappear, having been supposed to have been absent on a short 
journey, or to have been kept at home by sickness; and would 
then, until a new attack came on him, act with perfect sobriety 
and self-control. Thus at the table of the prince by whom he 
was employed he never was suspected of love for drink, and 
died without the secret being known. “ I never can forget,” 
says Hr. Liman, who attended him, “ his earnest supplications 
to me to relieve him from his misery; and I can say that he 
was at least not wanting in good intentions, as well as in 
moral disgust at himself.” Multitudes of analogous cases are 
familiar to those who have watched social life in America. 
§ 640. But is “dipsomania,” or periodical paroxysm for 
drink, a distinct form of insanity ? In other words, are the 
mind’s relations to alcohol such, that a person otherwise sane, 
may be insane as to drink, and consequently irresponsible for 
drunkenness and its results? Of course these questions are 
naturally answered in the affirmative by those alienists who 
treat the mind as a bundle of independent qualities, the de- 
rangement of either of which does not involve the derange- 
ment of the others. On the other hand, Ideler, a German 
psychological physician of great distinction, treats “ dipso- 
mania” as simply a bad habit of self-indulgence; and he adds, 
if a man is to be irresponsible for the evil consequences of one 
(q) Liman’s Casper, 1871, p. 647. 
620 BOOK I.J 
“dipsomania.” 
[§ 641 
bad habit, there is no reason why he should not be irrespon- 
sible for another. He declares that love for drink, whether 
this love be constant, or occurring in periodical paroxysms, is 
conquered by force of will; and he brings in to show this the 
statistics of temperance societies, showing how frequently 
drunkards have been reformed. He points to numerous 
individual cases in which such reforms have been known. 
And, indeed, as the disease has been in so many cases overcome, 
the duty of government, instead of establishing a privileged 
class of drunkards, who, by their emancipation from penal 
law would be entitled to indulge in their passion and its con- 
sequences without stint, is, as it may well be argued, to make 
drunkenness in any shape a criminal offence, and at the same 
time provide asylums where habitual drunkards can be re- 
formed. 
§ 641. But in addition to this objection to the recognition 
of “ dipsomania” as a distinct moral mania, conferring irre- 
sponsibility on those subject to it, it may be noticed that if 
we allow such a privilege to thirst for alcohol, we must allow 
it to an almost endless series of other appetites. The passion 
for opium, taking the world through, is as extensive as that 
for drink; it is certainly as powerful and as pernicious. That 
it is capable of being reduced by moral influences (e. g. fear of 
disgrace or punishment) does not distinguish it from dipso- 
mania proper, for in the latter moral means have often a 
marked effect. Graving for chloroform, we have recently been 
told, has also become a powerful mania; and we have had detailed 
to us cases in which this passion is declared to have become 
“ irresistible.” Among less cultivated countries passions for 
particular forms of food become in like manner despotic; and 
among the Esquimaux this is said to exist in reference to train 
oil. Even so clear-headed and energetic a prince as Charles V. 
had so strong a passion for fish, that he persisted in indulg- 
ing in this appetite, though in so doing, as he was assured by 
his physicians, he shortened his life, and subjected himself to 
much bodily pain. If, as is maintained by the classifiers of 
“monomanias,” “dipsomania” has its own cell, then we must 
have a separate cell for the separate passion for every particular 
article of food or drink. 
621 § 643] 
MENTAL UNSOUNDNESS. 
[book i. 
§ 642. But the truth is that “ dipsomania,” so far as it dis- 
tinctively exists, is a physical rather than a moral disease. 
There is a craving in these patients for alcoholic drinks, as 
there is in other cases a craving for opium or for particular 
articles of food, or for tobacco, or for chloroform ; or as there 
is in another class of cases a craving for restless action, or for 
self-indulgent repose. But in all these cases, supposing the 
mind to be sane, the patient’s will follows the dictates of his 
reason. He balances the gratification on the one side, against 
the evil consequences on the other. If the latter appear to 
him remote—if he thinks he may indulge just this once with- 
out being discovered or punished, and then make this indul- 
gence the crisis from which to date a new era of self-restraint 
—he is apt to seize the gratification. The great point before 
him, at least in the incipient stages, is, whether the pleasure 
may be enjoyed with impunity. If it can, it will be enjoyed. 
Of course, then, in view of the evils to the community of 
“ dipsomania” as a general disease, the law is bound to step 
in and attach certain penalties to such a dangerous habit. It 
says, “ Drunkenness we make a police offence,” and “ for crimes 
committed under the excitement of drunkenness, we hold 
drunkenness to be no defence.” It cannot say this, however, 
with effect, unless it makes good what it says. A law which 
is not executed ceases to deter. It must be executed if it is 
to have any effect on the will. The man who is strongly 
tempted to indulge a passion must feel, “ I will he punished 
if I do this;” but, in order that he should feel this, the law 
must be known to perform what it threatens.(r) 
§ 643. “ Dipsomania” is here viewed not only singly, but as a 
type of other appetites for excessive food, drink, and stimulus. 
These appetites spring from the animal nature, and, if they are 
yielded to in excess, brutalize him who yields to them, making 
them the sources of great domestic and sometimes cruel wrong. 
From the very nature of such indulgences, they are to be con- 
trolled chiefly, if not exclusively, by the fear of results. Hence 
it is that to such men the greatest mercy is that the law should 
be firmly expressed. To declare them emancipated from the 
(r) See supra, §§ 115, 146, 162, 188, 403. 
622 BOOK I.] 
“dipsomania.” 
[§ 643 
law on the ground that “ dipsomania” is a moral insanity, is 
cruel to them, as taking away what may he the only barrier be- 
tween them and ruin. And it is unphilosopliical on the grounds 
already stated. The mind is not divided into a series of com- 
partments, one of which can be insane and the others sane. 
When there is an insanity of the part, there is insanity of the 
whole. When there is no insanity of the whole, there is no 
insanity of a part.(s) 
(s) As to “dipsomania” as a legal defence, see swpra, §§190-199; and see, 
as negativing theory, Choice v. State, 31 Georg. 424. 
The following is extracted from an article by Dr. T. H. Tanner, in the 
Dublin Medical Press of August 27, 1862, as reprinted in the American Jour- 
nal of Insanity for October, 1862 :— 
“ Within the last few years the word dipsomania has been coined to express 
that craving for intoxicating liquors which, according to some physicians, 
partakes of the character of insanity. 
“ Now, although a fit of intoxication is undoubtedly an attack of temporary 
mania, yet it seems to me a highly unphilosopliical view (and one, too, which 
is fraught with the greatest danger to society) to regard a dipsomaniac as an 
irresponsible being; to look upon him, in fact, as an individual affected by 
some recognized form of lunacy. Hard drinking is a degrading vice, and, 
like many other vices, the more freely it is indulged in, the more difficult is 
its discontinuance. It seems absurd to say that the desire for alcoholic stimu- 
lants is a disease—that it is symptomatic of some cerebral condition, unless, 
indeed, we say the same of every act of wickedness or folly. Not only is the 
experience of the dead-house against such a view, but, if we set aside this 
evidence as being of little value, we yet know that there is no difficulty in 
curing the most inveterate sot, provided that we are but able to deprive him 
of his poison. The fact is indisputable, that many who drink to excess can 
be persuaded to abstain temporarily, if only a limit to their abstinence be 
fixed, so that they may enjoy the anticipation of a debauch ; while a few can 
be so influenced that they renounce this habit entirely. 
‘ ‘ The drunkard is a nuisance to himself and all who are brought into con- 
tact with him ; and it is to be regretted that there are no legal means of con- 
trolling him until he is cured of his folly. 
“ The man who attempts suicide by some summary process is liable to im- 
prisonment ; while he who slowly poisons himself may proceed to certain 
destruction with impunity. He may ruin himself and his family, but so that 
he breaks only moral laws and obligations he cannot be stopped in his down- 
ward career. The welfare of society demands some place of detention for 
such men: and, even if an act of parliament cannot be obtained to sanction 
the necessary interference with the liberty of these misguided people, yet I 
believe that there are many who would voluntarily enter and submit to the 
rules of an institution for the cure of drunkenness. 
“ Mr. Dickens in his ‘ American Notes’ mentions the case of a man who got 
623 § 644] 
MENTAL UNSOUNDNESS. 
[book i. 
(/c2) Fanatico-mania. 
(a3) Supernatural or pseudo-supernatural demoniacal possession. 
(a4) A •priori improbability of such possession, § 644. 
(54) Solvability of the instances of such possession by natural tests. 
(a5) Disease, § 646. 
(55) Morbid imitative sympathy, § 647. 
(c5) Legerdemain and fraud, § 651. 
(d5) Mistake of senses, § 654. 
(e5) Guesswork, § 656. 
(/5) Natural phenomena at present inexplicable, § 659. 
(c4) Historical evidence of such possession, § 660. 
(b3) Religious insanity. 
(a4) Christianity, taken in its practical sense, has no tendency to 
produce insanity, § 662. 
(bl) What is called religious insanity is produced— 
(a5) By a departure from practical Christianity, § 669. 
(a6) Reliance on frames and emotions, § 669. 
(b6) Appeal to unscriptural supernaturalism, § 670. 
(c6) Appeal to the selfish element, 675. 
(bs) By constitutional idiosyncrasies, § 677. 
(c3) Fanatico-mania as a defence, § 678. 
(a3) Supernatural or pseudo-supernatural demoniacal possession. 
(a4) § 644. A priori improbability of such possession.—There 
are periods in the development of society when we may natu- 
rally expect supernatural and miraculous communications. 
When a new economy is to be announced, it is by miracles 
that we may look to see it authenticated. When that economy 
is inaugurated, wTe may look for a government by law. This 
position may he illustrated as follows:— 
There stands in the hall of an old-fashioned country-seat an 
eight-day clock. When the proper day has come, the master 
of the house opens the clock-door, and the creaking of the re- 
luctant wheels is heard as the machinery takes a new start. 
The children of the family collect around him, and, careless of 
its intermediate movements, connect each future tick with the 
himself locked up in the Philadelphia prison, so that he might rid himself of 
his propensity to drink, where he remained in solitary confinement for two 
years, though he had the power of obtaining his liberty at any moment that 
he chose to ask for it. Patients have more than once told me that they would 
gladly submit to any treatment or surveillance ; but they have also said that 
without restraint all else would be useless, for they could not trust them- 
selves.” 
624 BOOK I.] 
“ FANATICO-MANIA.” 
[§ 645 
impulse received from their father’s hand. On the other hand, 
innumerable ephemeral insects crowd the mahogany case. 
Their life runs not over sunset, and the memory of none with 
whom they converse goes back further than a day. “ You say 
that this motion had a beginning,” we may imagine a skeptic 
among them to say: “ why, the clock is self-moving, and 
governed by fixed, immutable laws.” On the other hand, 
those whose observation goes only to the epochs when the 
master-hand intervened, see in each heat only the original im- 
pulse. Both are in the right. The clock moves intermediately 
under second causes, but the machinery of which these causes 
consist is, from time to time, put in motion by an extrinsic 
power. And so it is in the world. The rocks unite with the 
scriptural record in bearing witness to certain grand windings 
up of the cosmical machinery. Human observation, however, 
is confined to a mere parenthesis between two of these inter- 
positions. And in this parenthesis we have, to the outer eye, 
in things objective, nothing before us but the regular march 
of second causes. 
§ 645. How, there is, a jiriori, a reason for all this. "Were 
the world to be governed by direct miraculous interpositions 
alone, there would be no room for probation. Were it to be 
governed by second causes alone—in other words, were we to 
lose now the proof we have from geology and Scriptures of 
prior miraculous interventions—there would be no authentica- 
tion of a revelation. For miracles are the sign-manual of the 
Omnipotent himself, by which, in the sight of creation, He 
attests His presence. What we object to in the naturalists, 
therefore, is, that by rejecting miracles they destroy the authen- 
tication of revelation. What we object to in the superna- 
turalists is, that by treating modern supernaturalism as mira- 
culous they destroy faith in any revelation at all^s1) 
(s1) “ It is to be expected that an event unique in the world’s history should 
be marked by accompaniments partaking of its own character. The miracles 
are not every-day events, because the redemption of mankind is not an every- 
day event; they belong to no cycle in the recurring phenomena of nature, 
because Christ has not often suffered since the foundation of the world. 
Round this great fact of man’s redemption the accessory features of that won- 
drous narrative are grouped and clustered as around their proper centre ; no 
yol. i.—40 
625 § 645] 
[BOOK I. 
MENTAL UNSOUNDNESS. 
With the institution of Christianity authoritative miracu- 
lous communications ceased. Holy Scriptures were given as 
longer the uncouth prodigies of the kingdom of Nature, but the fitting splen- 
dors of the kingdom of Grace. It was meet that He who came as the con- 
queror of sin and death, who had power to lay down His life and power to 
take it again, should come also as the Lord of Body and the Lord of Spirit, 
having power over the elements of matter and over the thoughts of men’s 
minds ; foretold by predictions which no human wisdom could have suggested, 
testified to by works which no human power could have accomplished. 
Viewed as part of the scheme of Redemption, the marvels of the Scripture 
narrative are ncjilonger isolated and unmeaning anomalies, but a foreordained 
and orderly system of powers, working above the ordinary course of nature. 
The incongruity, the anomaly, would be if they were not there—if the salva- 
tion of the souls of men was to be brought about by no higher means than 
those which minister to their bodily appetites and material comforts. The 
daily wants of the individual, or the progressive culture of the race, may be 
provided for or advanced by laws which work unceasingly from day to day, 
and from generation to generation; but we seek no recurring law of the 
Scripture miracles, because we expect no recurrence of that fact to which all 
Scripture bears witness.” 
* * * * “This operation of a series of eternally impressed consequences 
could hardly be described more graphically or forcibly than in the following 
words of a great German philosopher: ‘ Let us imagine, for instance, this 
grain of sand lying some few feet further inland than it actually does. Then 
must the stormwind that drove it in from the seashore have been stronger 
than it actually was. Then must the preceding state of the atmosphere, by 
which this wind was occasioned and its degree of strength determined, have 
been different from what it actually was ; and the previous changes which 
gave rise to this particular weather ; and so on. We must suppose a different 
temperature from that which really existed, and a different constitution of the 
bodies which influenced this temperature. The fertility or barrenness of 
countries, the duration of the life of man, depend, unquestionably, in a great 
degree, on temperature. How can you know—since it is not given us to 
penetrate the arcana of nature, and it is therefore allowable to speak of possi- 
bilities—how can you know that in such a state of the weather as we have 
been supposing, in order to carry this grain of sand a few yards further, some 
ancestor of yours might not have perished from hunger, or cold, or heat, long 
before the birth of that son from whom you are descended; that thus you 
might never have been at all; and all that you have ever done, and all that 
you ever hope to do in this world, must have been hindered, in order that a 
grain of sand might lie in a different place ?’ 
“ Without attempting to criticize the argument as thus eloquently stated, 
let us make one alteration In the circumstances supposed—an alteration ne- 
cessary to make it relevant to the present question. Let us suppose that the 
grain of sand, instead of being carried to its present position by the wind, has 
been placed there by a man. Is the student of physical science prepared to 
626 BOOK I.] 
“ FANATICO- MANIA.” 
[§ 645 
containing all tilings necessary to salvation, and a woe was 
denounced on any one who should add to the volume of the 
enumerate a similar chain of material antecedents, which must have been 
other than they were, before the man could have chosen to deposit the grain 
of sand on any other spot than that on which it is now lying ? Such a con- 
clusion has indeed been maintained in general terms, w'ithout any specifica- 
tion of antecedents, by the advocates of Fatalism ; and it is maintained in the 
continuation of the passage from which the above extract is taken. But the 
question is, not whether such a conclusion has been asserted, as many other 
absurdities have been asserted, by the advocates of a theory ; but whether it 
has been established on such scientific grounds as to be entitled to the assent 
of all duly cultivated minds, whatever their own consciousness may say to 
the contrary. The most rigid prevalence of law and necessary sequence 
among purely material phenomena may be admitted without apprehension 
by the firmest believer in miracles, so long as that sequence is so interpreted 
as to leave room for a power indispensable to all moral obligations and to all 
religious belief—the power of free will in man. Deny the existence of a free 
will in man ; and neither the possibility of miracles, nor any other question 
of religion or morality, is worth contending about. 
“Admit the existence of a free will in man ; and we have the experience of 
a power analogous, however inferior, to that which is supposed to operate in 
the production of a miracle, and forming the basis of a legitimate argument 
from the less to the greater. In the will of man we have the solitary instance 
of an efficient cause in the highest sense of the term, acting among and along 
with the physical causes of the material world, and producing results which 
would not have been brought about by any invariable sequence of physical 
causes left to their own action. We have evidence, also, of an elasticity, so 
to speak, in the constitution of nature, which permits the influence of human 
power on the phenomena of the world to be exercised or suspended at will, 
without affecting the stability of the whole. 
“We have thus a precedent for allowing the possibility of a similar inter- 
ference of a higher will on a grander scale, provided for by a similar elasticity 
of the matter subjected to its influence. Such interferences, whether pro- 
duced by hurpan or by superhuman will, are not contrary to the laws of 
matter ; but neither are they the result of those law's. 
“ They are the work of an agent who is independent of the laws, and who, 
therefore, neither obeys them nor disobeys them. If a man of his own free 
will throws a stone into the air, the motion of the stone, as soon as it has left 
his hand, is determined by a combination of purely material laws ; partly by 
the attraction of the earth ; partly by the resistance of the air ; partly by the 
magnitude and direction of the force by which it was thrown. But by what 
law came it to be thrown at all? What law brought about the circumstances 
through which the aforesaid combination of material laws came into opera- 
tion on this particular occasion and in this particular manner ? The law of 
gravitation, no doubt, remains constant and unbroken, wTliether the stone is 
lying on the ground or moving through the air ; but neither the law of gravi- 
627 § 645J 
[BOOK I. 
MENTAL UNSOUNDNESS. 
book. The existence of a constant economy of progressive 
miraculous revelation, developing itself from moment to mo- 
ment by new formulas and doctrines, is inconsistent not only 
with the analogy of God’s dealing in other respects, but is in 
opposition to the written word. 
Then as to the alleged supernatural powers of Satan.(t) Now 
the existence of Satan as a tempter is not denied; all that we 
deny is his absolute power as a coercer. The law of the land 
unites with Scripture in affirming the existence of such a 
tempter. “Moved and seduced by the instigation of the 
devil” is the allegation which the prosecution makes in every 
indictment for a heinous crime. “ I was coerced to do so by 
supernatural agency” is a defence, which, unless there be proof 
of insanity aliunde, is never tolerated. This is one of the 
points in which the common law has adopted the divine word 
as part of itself. Scripture tells us of a spiritual enemy who 
goes about seeking whom he may devour, but it appeals to us 
as moral agents, capable of repelling him—it tells us that if we 
resist him, he will flee—and it points us as a model to One 
from whom the tempter shrank away. “ The Creator has 
endowed him (the evil spirit) with no active power over us; 
he cannot operate upon us except through the medium of our 
own will; but persons are often better pleased to throw the 
blame of that which is evil in their hearts upon the influence 
of Satan, than upon their own indulgence of sinful passion 
and corrupt propensity; as if the facility with which they fell 
into the snare of the devil, and were taken captive by him, did 
not equally prove that permanent tendency to wrong which 
showed that the heart was deceitful and desperately wicked. 
What is commonly called (and very frequently is) temptation, 
is often ascribed to this especial agency, when it really con- 
tation, nor all the laws of matter put together, could have brought about this 
particular result, without the interposition of the free will of the man who 
throws the stone. 
“ Substitute the will of God for the will of man ; and the argument, which 
in the above instance is limited to the narrow sphere within which man’s 
power can be exercised, becomes applicable to the whole extent of 
and to all the phenomena which it embraces.”—Mansell on Miracles, 1870. 
(t) On this point, see Whately’s Good and Evil Angels, Lecture IV. 
628 BOOK I.] 
“ FANATICO-MANIA.” 
[§ 646 
sisted in the aptitude of the mind for certain evil modes of 
action, which are embraced when presented to it, because there 
exists a corresponding feeling, a principle from within, har- 
moniously continuing with every outward action of a similar 
character. '\u) 
(//) Solvability of this evidence by natural tests. 
(a5) § 646. Disease.—The brain, independently of its positive 
functions, is the centre of nervous sympathy, and “ is inti- 
mately connected with many other viscera, whose functions 
cannot be carried on without the assistance derived from this 
organ, and whose infinitely varied disturbances are all propa- 
gated by a reflex action to this common centre.” Among the 
organs by which the brain is thus influenced, the stomach may 
be particularly mentioned. Observe, as an illustration of this, 
the way in which tea, coffee, alcohol, and opium act on the 
brain. Headaches, hypochondriasis, melancholy, here find 
their origin. Take the ordinary case of hallucination, in 
which a ghost is seen, or a prophecy heard. Here a morbid 
state of the stomach, induced, perhaps, by stimulants, perhaps 
by indigestion, is the direct cause of the phantasm of cases 
such as these. Hr. Ferrier thus speaks: “ It is well known 
that in certain diseases of the brain, such as delirium and 
insanity, spectral illusions take place even during the space of 
many days. But it has not been generally observed that a 
partial affection of the brain may exist, which renders the 
patient liable to such imaginary impressions, either of sight 
or sound, without disordering his judgment or memory. From 
this peculiar condition of the sensorium, I conceive that the 
best-supported stories of apparitions may be completely ac- 
counted for.” 
“ When the brain is partially irritated, the patient fancies 
that he sees spiders crawling over his bedclothes or person, or 
beholds them covering the walls of his room. If the disease 
increases, he imagines that persons who are dead or absent flit 
around his bed, that animals crowd into his apartment, and 
(«) See a series of very interesting and judicious articles on Superstition in 
vol. 29 of London Christian Observer. 
629 §648; 
MENTAL UNSOUNDNESS. 
[BOOK I. 
that all these apparitions speak to him. These impressions 
take place even while he is convinced of their fallacy. All 
this occurs sometimes without any degree of delirium.” 
This topic, in its psychological relations, is more fully con- 
sidered under other heads.(v) 
(b5) § 647. Morbid imitative sympathy.—Emotions which would 
not affect us when alone become overpowering when striking 
us in connection with others. Hysterical symptoms, when not 
promptly repressed in times of general religious excitement, 
may in this way become epidemic. Hr. Davidson, in his 
history of the Presbyterian Church in Kentucky, gives us 
instances of this. Speaking of a period in East Tennessee, in 
which these manifestations were very injudiciously encouraged, 
he tells us that “ the subject was instantaneously seized with 
spasms or convulsions in every muscle, nerve, and tendon. His 
head was jerked or thrown from side to side with such rapidity 
that it wTas impossible to distinguish his visage, and the most 
lively fears were entertained lest he should dislocate his neck, 
or dash out his brains. His body partook of the same im- 
pulse, and was hurried on by like jerks over every obstacle— 
fallen trunks of trees, or, in a church, over pews and benches, 
apparently to the most imminent danger of being bruised and 
mangled. It was useless to attempt to hold or restrain him, 
and the paroxysm was permitted gradually to exhaust itself. 
An additional motive for leaving him to himself was the 
superstitious notion that all attempt at restraint was resisting 
the Spirit of God.” 
§ 648. Most of the supposed cases of supernatural possession 
fall under this head. Take, in addition to the above, the fol- 
lowing, which occurred in Kentucky in the movements of 1810- 
15. A man who was undoubtedly deranged, and who had in 
early life been a bold and enthusiastic hunter in the wilderness 
of which Western Kentucky was composed, became deeply 
impressed with a religious enthusiasm which exhibited itself 
in the same way that all his other impulses exhibited them- 
selves—through the mechanism of the hunting mania. He 
became a sort of fanatical Der Freyschutz. In order to resist 
(v) Supra, § 829, infra, §§ 723-743. 
630 BOOK I.] 
“ FANATICO-MANIA.” 
[§ 649 
the devil and make him flee, he contended that it was neces- 
sary to tree him, and to give him chase, just as we would a 
wolf whom we found prowling among our sheep. As the 
meetings he convoked were held in a grove, one of the congre- 
gation would suddenly start in pursuit of the devil, an ex- 
ercise in which a number of others equally excitable would 
immediately join. This was called the “running exercise” 
and became the first stage in the series of movements by which 
the meetings were afterwards made memorable. Climbing a 
tree after the devil was the next movement, which was called 
the “climbing exercise” In the ecstasy of the moment, one 
individual was seized with a propensity to bark, a movement 
to which the rest were irresistibly impelled, though they used 
every effort to check the propensity. This exercise, which was 
called “treeing the devil” was accompanied with such a scene 
of barking and jumping as to destroy any remaining appear- 
ance of reason. The epidemic spread to other fields than that 
of demon-hunting. On one occasion one individual was seized 
with an insane propensity to play marbles during divine ser- 
vice, when others involuntarily joined him. And so far did 
the mania extend, that a series of other j uvenile games were 
introduced and followed with the same irresistible vehemence 
by the congregation. Absurd as this may appear, the epidemic 
lasted for some months, and its history has now passed into 
the records of our Western States as part of the materials 
on which the annals of Western immigration will rest. 
§ 649. In connection with this, may be noticed the recog- 
nized effect of a mania of the imitative powers, as exhibited in 
the tarantula of Apulia, and the exercises of the Jumpers of 
Cornwall and the convulsionnaires of the Parisian miracles. 
“ In 1556,” says Dr. Kellogg, “ a number of children, brought 
up in the city of Amsterdam—girls as well as boys—to the 
number of sixty or seventy, were attacked with an extraordi- 
nary disease. They climbed like cats on the walls and roofs. 
Their aspect was alarming, they spoke foreign languages, said 
wonderful things, and even gave an account of all that was 
passing in the municipal council. They ran in groups of ten 
or twelve through the public squares, went to the rector, and 
reproached him with his most secret actions. It is also asserted 
631 § 649] 
MENTAL UNSOUNDNESS. 
[book i. 
that they discovered several plots against the Protestants; and 
the faculty of prophesying, foretelling the future, and speaking 
in foreign languages, appeared really to exist in this epidemic.” 
“ With our present amount of knowledge,” says Dr. Wins- 
low, speaking of imitative or epidemic suicide, “ of the subtle 
principle of contagion, it is difficult to say whether an efflu- 
vium may not be generated in such cases, which, under certain 
conditions of the system, may communicate disease. We 
cannot possibly say that such is not the case,” he adds, “ though 
we are by no means willing to admit that the disposition to 
suicide may be propagated by contagion—using the term in 
its usual acceptation.” 
“ A man once hung himself, on one of the doors of the 
corridor at the Hotel des Invalides. For two years previous no 
suicide had occurred, but in the succeeding fortnight Jive in- 
valids hung themselves on the same cross-bar, and the passage 
had to be closed. In one of the Berlin hospitals, some fifty 
years since, a young woman of robust frame visited one of 
the patients. On entering the ward, she fell down in strong 
convulsions. Six female patients who saw her became at once 
convulsed in the same way, and, by degrees, eight others passed 
into the same condition for four months, during which time 
four nurses followed their example. They were all between 
sixteen and twenty-five years of age. Some years since, in one 
of our popular boarding-schools for young ladies, a pupil be- 
came affected by chorea. Her contortions being perceived by 
the school, this case was soon followed by another, and still 
another, until the disease became regularly epidemic. A ju- 
dicious physician being called in proposed that cauterization 
by a red-hot iron should be applied to the next case which 
occurred; this prescription became generally known through 
the school; no more cases occurred. In the olden time, the 
ladies of Miletus, in a fit of melancholy for the absence of 
their husbands and lovers, resolved to hang themselves, and, 
as in all fashionable amusements, vied with each other in the 
alacrity with which they carried on their work of self-de- 
struction. Sydenham informs us that at Mansfield, in the 
month of June, suicide prevailed to an alarming degree, from 
causes wholly unknown. The same thing happened at Rouen 
632 BOOK I.] 
“ FANATICO-MANIA.” 
[§ 651 
in 1806, at Stuttgart in 1811, and at a village of St. Pierre 
Montjean in the year 1813. One of the most marked suicidal 
epidemics was that which prevailed at Versailles in the year 
1793: in one year the number of suicides was thirteen hun- 
dred—a number entirely out of proportion to the population.” 
§ 650. A suicidal epidemic prevailed at the New York State 
Lunatic Asylum in July, 1851, and is alluded to by Dr. Bene- 
dict in his report for that year. “Out of four hundred and 
sixteen patients, at that time in the institution, the suicidal 
propensity existed in sixty-six. The first successful attempt 
was made on the 12th of July, by a female of the most intel- 
ligent class. Her melancholy end became known to her com- 
panions, with whom she was a favorite, and on the following 
day two others in the same hall were overheard devising a 
plan for their own death. The large number of forty-four 
patients were admitted during the month of July, nineteen of 
whom were suicidal. Two patients, who had long been in the 
house, and never manifested suicidal propensities, attempted 
it during this month, though they had no knowledge of what had 
occurred in another part of the building.”(w) 
(c5) § 651. Legerdemain and fraud.—Dr. Monsey, who was 
the medical adviser of Garrick, was called upon to pay a pro- 
fessional visit to that great actor. “ Garrick,” as his bio- 
grapher, Taylor, tells us, “ was announced for King Lear on that 
night, and when Monsey saw him in bed he expressed his sur- 
prise, and asked him if the play was to be changed. Garrick 
was dressed, but had his nightcap on, and the quilt was drawn 
over him to give him the appearance of being too ill to rise. 
Dr. M. expressed his surprise, as it was time for Garrick to be 
at the theatre to dress for King Lear. Garrick, in a languid 
and whining tone, told him that he was too much indisposed 
to perform himself, but that there was an actor named Marr, 
so like him in figure, face, and voice, and so admirable a 
mimic, that he had ventured to trust the part to him, and was 
sure that the audience would not perceive the difference. Pre- 
tending that he began to feel worse, he requested Monsey to 
leave the room in order that he might get a little sleep, but 
(w) Kellogg on Reciprocal Influence of Mind and Body. 
633 § 652] 
MENTAL UNSOUNDNESS. 
[book t. 
desired him to attend the theatre and let him know the result. 
As soon as the doctor quitted the room, Garrick jumped out 
of bed and hastened to the theatre. Monsey attended the 
performance. Having left Garrick in bed, he was bewildered 
by the scene before him, sometimes doubting, and sometimes 
being astonished at the resemblance between Garrick and 
Marr. At length, finding that the audience were convinced of 
Garrick’s identity, Monsey began to suspect a trick had been 
practised upon him, and instantly hurried to Garrick’s house 
at the end of the play; but Garrick was too quick for him, 
and was found by Monsey in the same state of illness.” 
§ 652. A writer in the London Christian Observer, for 1812, 
tells us that in the middle of the last century, a small club of 
convivial personages was assembled at supper in Manchester. 
A chair at the bottom of the table was left empty by the 
absence of a member who was known to be at the time con- 
fined upon a dying bed. The waiters had quitted the room, 
and the members were speaking of their dying friend, when 
on a sudden the door opened, and his apparition, as was sup- 
posed, entered, shrouded in white, and pale and ghastly as an 
inhabitant of the tomb. It stalked to the unoccupied chair, 
sat down, looked around upon the company, rose again, and 
with slow and solemn step quitted the room. Overcome with 
awe, ill-prepared by their habits of life to resist the terrors of 
superstition, no one followed him. When all was over, how- 
ever, they sent to the house of the sick man, and learned from 
the nurse that he had died a few minutes before they had seen 
his apparition. Could a ghost-story be more strongly authen- 
ticated ? and could it be wondered at that the club should be 
dissolved, and that each member should thenceforward remain 
a firm believer in spectral appearances? Thus matters con- 
tinued for nearly ten years; when the nurse, on her dying-bed, 
confessed to the clergyman of the parish, that her fear of dis- 
credit for an act of negligence had led to this misapprehension 
of the facts of the case. She confessed, that, while the dying 
man was in a paroxysm of fever, she had quitted his chamber; 
that on her return, a few minutes after, she found that, with 
the strength not unusually attendant upon the last moments 
of life, he had fled; but that after a few minutes he returned 
634 BOOK I.] 
“FANATICO-MANIA.” 
[§ 652 
with his sheet wrapped around him, lay down in his bed and 
died. The fact seems to have been, that, by force of custom, 
he had thought of his club at the appointed day and hour, 
had crossed the street to the club-door, which joined the street, 
and thus terrified the society. 
So also the following, given in the same journal. It was 
the object, some fifty odd years ago, of a certain party in the 
kingdom of Prussia to separate the successor of Frederick the 
Great of Prussia from the interests of that wary and ambitious 
prince. Weary of the wars in which he engaged the country, 
these persons were desirous of robbing him not merely of his 
throne, but of his life. It chanced, however, that the young 
prince was not to be seduced, except by a peculiar process, to 
any such nefarious attempt. He was neither ambitious nor 
sanguinary; and, unless when stimulated by peculiar feelings, 
was of a cold and phlegmatic temperament. When once, how- 
ever, those feelings were roused, his ardor became very great. 
He was superstitious, credulous, and sensual. On these yield- 
ing points of his nature, then, the conspirators resolved to 
practise. Accordingly, jugglers of all sorts were set to work, 
and among others an infamous fellow of the name of Gust- 
fragog. The “ Ghost Seer” of Schiller gives an accurate picture 
of one of the scenes exhibited to the prince, and by which 
even a firmer mind than his might have been deeply affected. 
It is unnecessary to state the political result of the plan. It is 
more to our present purpose to add, that its partial social suc- 
cess assisted to diffuse a taste for necromancy over the nation. 
“ Tricks,” is the summary of this by the writer in the Chris- 
tian Observer, “were devised and executed, which serve to 
illustrate and confirm the opinion, that in all ages much of 
what has been referred to spectral appearances has far more 
connection with the living than the dead. Gustfragog, in the 
presence of the narrator above mentioned, produced the shades 
of the dead, invisible music, called out voices from the dead 
walls, in short, made matter loquacious, music philosophical, 
at his pleasure.” 
So also of a well-known and painful anecdote told by the 
late Washington Allston. A student at Cambridge dressed 
himself up in white as a ghost to frighten his companion, 
635 § 654] 
MENTAL UNSOUNDNESS. 
[book i. 
having first drawn the bullets from pistols which he kept at 
the head of his bed. As the apparition glided by his bed, the 
youth laughed and cried out, “Vanish, I fear you not.” The 
ghost did not obey him, and at length he reached a pistol and 
fired it, when, seeing the ghost immovable, and invulnerable 
as he supposed, a belief in a spirit instantly came over his mind, 
and, convulsions succeeding, his extreme terror was soon fol- 
lowed by death. 
§ 653. Predictions, accompanied by ghostly horrors such as 
this, often bring about their own fulfilment. Dr. Rush told 
a story of a farmer, near Philadelphia, who took the yellow 
fever upon hearing from a party of medical students, who 
wanted to play a practical joke upon him, that he displayed 
the premonitory symptoms of that disease. Suppose the com- 
munication had been made to him under the mask of a simu- 
lated apparition, and suppose the imposition had remained 
undetected, would we not have had a ghost story equal in 
authentication to the strongest which modern supernaturalism 
can present ? 
(d5) § 654. Mistake of senses.—Mr. Dendy, in his Philosophy 
of Mystery, tells us that a few days after the death of Marshal 
Hey, a servant, ushering the Mareschal Aine into a Parisian 
soiree, announced by mistake Mons. Le Mareschal Key. In- 
stantaneously, says the narrator, the form of the Prince of 
Moskeva was before his eye. 
How here was an apparition produced by mental association. 
Ho one accustomed to the examination of testimony in courts 
of justice, but will recollect many similar cases. 
Visual mistakes find their place here. Thus Lord Helson’s 
sailors conjured up the bloated corpse of the murdered Prince 
Caraccioli, as it floated erect towards their ship, as a ghost 
fraught with supernatural warning. 
A lady was some years back attending a sick husband in a 
little town on the Hudson River. The windows of the room 
they occupied looked directly down on the graveyard. To- 
wards midnight, on Saturday, the disease of the sick man 
approached a crisis, and his wife was earnestly praying for his 
recovery. Suddenly she saw in the graveyard a spectral figure 
in white robes, apparently waving its arms to her as if with a 
636 BOOK I.] 
“ FANATICO-MANIA.” 
gesture of assent. She called to it the attention of the nurse, 
who fainted. It seemed as if the sick man at once began to 
recover, but the wife was too much overawed to be willing to 
remain in a neighborhood open to such apparitions. She was 
about to remove, when the difficulty was solved by the fol- 
lowing account given to her by her washerwoman: “ I am 
obliged to move also, for I have no place to dry my clothes. 
Last week we were forced to hang them in the churchyard, 
and then I forgot them, and had to run in towards midnight 
to catch them up in my arms, so as to keep them from being 
seen on Sunday morning.” 
Mr. Dendy tells us of a farmer of Teviotdale, who in the 
gloom of evening saw on the wall of a cemetery a pale form 
throwing about her arms and moving and chattering to the 
moon. With not a little terror, he spurred his horse, but as 
he passed the phantom it dropped from its perch, and, fixing 
itself on the croup, clasped him tightly round the waist. He 
arrived at home, with a thrill of horror exclaimed, “Tak aff 
the ghaist!” and was carried shivering to bed. And what was 
the phantom ? A maniac widow on her distracted pilgrimage 
to the grave of her husband, for whom she had mistaken the 
ill-fated farmer. 
The supernatural scenery which once surrounded Lake Su- 
perior may fall under this head. Spectre ships, propelled by 
giant sailors, were seen on its shores. Bluffs, almost moun- 
tain high, lifted their brows covered with trees of mammoth 
height. But the ships were Indian canoes, and the bluffs low 
ridges of sand covered with scrubby pines. The exaggerated 
size was produced by a peculiar refractive power of the 
atmosphere. 
§ 655. Observe, also, the solution of the Giant of the Brocken, 
as given by M. Haue. 
“ After having been here for the thirtieth time, and, besides 
other objects of my attention, having procured information 
respecting the above-mentioned atmospheric phenomenon, I 
was at length so fortunate as to have the pleasure of seeing it; 
and perhaps my description may afford satisfaction to others 
who visit Brocken through curiosity. The sun rose about four 
o’clock, and, the atmosphere being quite serene towards the 
637 § 655] 
MENTAL UNSOUNDNESS. 
[book i. 
east, his rays could pass without any obstruction over the 
Heinrichshohe. In the southwest, however, towards the 
Achtermannshohe, a brisk west wind carried before it their 
transparent vapors, which were not yet condensed into thick, 
heavy clouds. About a quarter past four I went towards the 
inn, and looked around to see if the atmosphere would permit 
me to have a free prospect to the southwest; when I observed, 
at a very great distance towards the Achtermannshohe, a 
human figure of a monstrous size. A violent gust of wind 
having almost carried away my hat, I clapped my hand to it 
by moving my arm towards my head, and the colossal figure 
did the same. The pleasure I felt on this discovery can hardly 
be described ; for I had already walked many a weary step in 
the hope of seeing this shadowy image, without being able to 
satisfy my curiosity. I immediately made another movement 
by bending my body, and the colossal figure before me repeated 
it. I was desirous of doing the same thing once more, but my 
colossus had vanished. I remained in the same position, 
waiting to see whether it would return, and in a few minutes 
it again made its appearance in the Achtermannshohe. I paid 
my respects to it a second time, and it did the same to me. I 
then called the landlord of the Brocken; and, having both taken 
the same position which I had taken alone, we looked towards 
the Achtermannshohe, but saw nothing. We had not, however, 
stood long when two such colossal figures were formed over 
the above eminence, which repeated our compliments by bend- 
ing their bodies as we did; after which they vanished. We 
retained our position, kept our eyes fixed upon the same spot, 
and in a little while the two figures again stood before us. 
Every movement that we made by bending our bodies these 
figures imitated, but with this difference, that the phenome- 
non was sometimes weak and faint,sometimes strong and well 
defined. Having thus had an opportunity of discovering the 
whole secret of this phenomenon, I can give the following in- 
formation to such of my readers as may be desirous of seeing 
it themselves. When the rising sun throws his rays over the 
Brocken upon the body of a man standing opposite to fine 
light clouds floating around or hovering past him, he needs 
only fix his eye steadfastly upon them, and in all probability 
638 BOOK I.] 
“FANATICO-MANIA.” 
[§ 656 
he will see the singular spectacle of his own shadow extending 
to the length of five or six hundred feet, at the distance of 
about two miles from him. This is one of the most agreeable 
phenomena I ever had an opportunity of remarking on the 
great uplands of Germany.” 
A throng of persons collecting at a given spot, and gazing 
intently at any specific object, will readily be affected by a 
delusion concerning it. Mr. Dendy tells us that some time 
since a very large assemblage was watching with intense 
interest the stone lion of the Percies at Northumberland 
House. They were unanimous in the conviction that he was 
swinging his tail to and fro ; a false impression, of course, 
which had gradually accumulated from this solitary exclama- 
tion of a passenger: “By heaven, he wags his tail!” Of this 
sort of illusion we are given the following additional instance. 
Beneath the western portico of St. Paul’s a crowd of gazers 
were some time since bending their eyes on the image of a 
saint, who was nodding at them with a very gracious affability. 
Curiosity had risen to the pitch of wonder at a miracle, when 
suddenly a sparrow-hawk flew from the ringlets of the saint, 
and the illusion vanished. 
(e5) § 656. Guessivork.—First, as to dreams. Now, in the 
millions of dreams that each night brings to pass, it is much 
more likely that some should come true, than none should. But 
there are independent circumstances tending to verify such 
predictions. 
“ If you do so and so, you will rue it.” So speaks superior 
sagacity or superior caution; but does the fulfilment prove the 
foreknowledge? Columbus predicted to the Indians an eclipse. 
In this case the prediction was the result of a higher degree 
of knowledge on his part. An Earl of Caithness, we are told, 
was desirous of ascertaining the distance of a vessel laden with 
wine for his cellars. He went to a seer, and received the 
answer, “At the distance of four hours’ sail.” The prophet, to 
prove the truth of his statement, laid before the earl the cap 
of a seaman in the ship. Soon the ship turned the point, and 
a seaman claimed the cap, saying that shortly before it had 
been blown from his head in a gale. 
Sometimes, however, the prediction is one of a series of mere 
639 § 657] 
MENTAL UNSOUNDNESS. 
[book i. 
fishing adventures. It is a conjecture, more or less sagacious, 
of one of a number of probabilities. So it was when [Napoleon, 
when marching to Acre, had a Rile boat named Ultalie de- 
stroyed. “ Italy is lost to France,” he declared; and the re- 
mark, when the result was found to have taken place, was 
treasured up, though it turned out to be only parenthetically 
true. So it was with the warning given by Lord Falkland 
and Archbishop Williams of the fate of Charles I. So it was 
with the famous prophecies of Cazotte, of the decapitation of 
himself and his friends. In each case the prophecy was a con- 
jecture, and the event at the time probable. 
Then come the mere dodging oracles, which are framed so 
as to read both ways. 
“The power is here which Caesar will overcome;” leaving 
the question, whether it is Caesar or the power which is to be 
triumphant, to be determined by the result. 
Then take the following, given Pyrrhus on his way to attack 
Rome:— 
“ Aio te JEacida Romanos te vincere posse;” meaning either 
that Rome was to conquer him, or he conquer Rome. 
Alexander the Great, in the first gush of his youthful vigor, 
visited the Delphic pythoness in order to obtain a favorable 
omen for his eastern campaign. The priestess shrank from an 
interview with a prince at once so capricious and so powerful. 
Alexander, however, would take no refusal, and, seizing her, 
forced her down upon the tripod from which her prophetic strains 
usually emanated. An operation like this, when we keep in 
mind the age of the prophetess, and the sharp, jutting points 
of the tripod on which she was thus trussed, could not have 
been agreeable to her; nor can we be surprised that she cried 
out testily, “0 son! who can withstand thee ?” Alexander in- 
quired no further, for this pettish cry was seized by him as a 
divine announcement of his future invincibility. 
§ 657. To this may be added those instances in which an 
apparently supernatural presentiment is produced by the re- 
suscitation of a dead recollection. Let us take the following, 
from Moreton’s Essay on Apparitions: “ The Reverend Dr. 
Scott, of Broad Street, was sitting alone in his study. On a 
sudden, the phantom of an old gentleman, dressed in a black 
640 BOOK I.J 
“ FANATICO-MANIA.” 
[§ 657 
velvet gown, and full-bottom wig, entered and sat himself 
down in a chair opposite to the doctor. The visitor informed 
him of a dilemma in which his grandson, who lived in the 
west country, was placed by the suit of his nephew for the 
recovery of an estate. This suit would be successful, unless a 
deed of conveyance was found, which had been hidden in an 
old chest in the loft of the house. On his arrival at this house, 
he learned that his grandson had dreamed of this visit, and 
that his grandfather was coming to aid him in the search. 
The deed was found in the false bottom of the old chest, as the 
vision had promised.” 
Now, the solution no doubt is, that the dreamer heard of 
the place of deposit when a boy, and had the circumstances 
recalled to him by the fact of the pending trial. 
The same explanation applies to the following cases:— 
After the death of Dante, as we are told by the same author, 
it was discovered that the thirteenth canto of the Paradise was 
missing. Great search was made for it, but in vain; and to 
the regret of every body concerned, it was at length concluded 
that it had either never been written, or had been destroyed. 
The quest was therefore given up, and some months had 
elapsed, when Pietro Allighierif, his son, dreamed that his 
father had appeared to him and told him, that, if he removed a 
certain panel near the window of the room in which he had 
been accustomed to write, the thirteenth canto would be found. 
Pietro told his dream, and was laughed at, of course. How- 
ever, as the canto did not turn up, it was thought as well to 
examine the spot indicated in the dream. The panel was re- 
moved, and there lay the missing canto behind it, much mil- 
dewed, but fortunately still legible. 
A gentleman in this country received a promissory note to a 
large amount, which he placed in a book. After the note 
became due, he was unable to recollect where he had placed.it, 
and the debt was in danger of being lost, and his character 
seriously injured, as one who was ready to press a claim for 
which he had no evidence. The fact caused him great anxiety, 
but his efforts to recollect the place of deposit were fruitless. 
Some time afterwards he was almost drowned, and became ap- 
parently insensible. 'When in this state, all the circumstances 
vol. i.—41 
641 § 659] 
MENTAL LNSOUNDNESS. 
[BOOK I. 
of the deposit flashed upon his mind, and the spot where he 
had placed the note was recalled. When he was able to speak, 
he sent for the book, and there the note was found. 
§ 658. Sir Evan Nepean, being at the time Secretary of the 
Admiralty, found himself one night unable to sleep, and was 
urged by an indefinable feeling that he must rise, though it 
was then only two o’clock. He accordingly did so, and went 
into the park, and from that to the Home Office, which he 
entered by a private door, of which he had the key. He had 
no object in doing this; and to pass the time, he took up a 
newspaper that was lying on the table, and there read a para- 
graph to the effect that a reprieve had been dispatched to York, 
for certain men condemned for coining. The question occurred 
to him, was it indeed dispatched ? He examined the books and 
found it was not; and it was only by the most energetic pro- 
ceedings that the order was forwarded and reached York in 
time to save the men. 
Mrs. Crowe, in her “ Night Side of Nature,” tells us of a 
case that occurred not many years since, where, a murder 
having been committed, a man came forward, saying that he 
had dreamed that the pack of the murdered peddler was hid- 
den in a certain spot; where, on a search being made, it was 
actually found. The police at first concluded that he was him- 
self the assassin, but the real criminal was afterwards dis- 
covered ; and, it being asserted that the two men had passed 
some time together since the murder, in a state of intoxication, 
the conclusion was generally reached that the crime and the 
place of concealment had been communicated to the pretended 
dreamer in such a way, in consequence of his then drunken- 
ness, as to leave a vague impression on his mind, without 
enabling him to understand how that impression came. 
Now here we have in each case a solution perfectly in ac- 
cordance with well-known psychological laws. The soul, of 
which memory is an attribute, is independent of corporeal con- 
ditions, and is unshackled by those bonds which confine even 
the will. It is this, we may remark incidentally, which in- 
vests the memory with such tremendous future retributive 
powers. 
(/5) § 659. Natural phenomena at present inexplicable.—Under 
642 BOOK I.] 
“ FANATICO-MANIA.” 
[§ 659 
this head we may place such remarkable occurrences as the 
“ ecstasies” of Louise Lateau and of Alexandrine Lanoix, as 
reported by Dr. Meredith Clymer in his valuable “ Notes on 
Ecstasy and other Dramatic Disorders of the Nervous Sys- 
tem.”^) 
With this may be classed the so-called “ Odyllic Force of 
Magnetism.” It is true that some of these phenomena may 
be explained in accordance with well-known natural analogies. 
They differ in no respect from a series of other phenomena 
equally inexplicable, but for which it has never been thought 
necessary to suppose direct Satanic or spiritual coercion. The 
strongest way of stating the magnetic theory is, that one 
human being is able, under certain circumstances, to so im- 
press his idiosyncrasies upon another as to produce in that 
other their counterparts. Suppose, instead of this, it should 
be stated that a dog is able to so act upon a human being as 
after a certain period of time to impress his idiosyncrasies upon 
the man, to cause him to bark like a dog, to believe himself a 
dog, in fact, to respond to the dog’s nature. Nothing in ani- 
mal magnetism is stranger than this, and yet this horrible and 
mysterious transformation we wdtness in the phenomenon 
(x) 4 Jour. Psyc. Med. 659. 
“ The perusal of Dr. Meredith Clymer’s very interesting paper, ‘ On the 
Dramatic Diseases of the Nervous System,’ ” Avrites Dr. George E. Day in the 
same Journal for 1871, p. 288, led “me to Avrite to Dr. Lefebvre, Professor of 
General Pathology and Therapeutics in the Catholic University of Louvain, 
to ask for further and later details regarding the case of Louise Lateau. 
“ In reply to my letter, he forAvarded me a complete Avork, Avhich he has 
recently published, entitled ‘ Louise Lateau de Bois d’Hiane: sa vie—ses 
extases—ses stigmates. Etude Medicale, par le Dr. F. Lefebvre, pp. 360: 
Louvain, 1870.’ The mode of arrangement of the volume is as folloAvs : In 
the first part he gives a short biography of the young Avoman; in the second, 
he enters into the details of her case ; in the third, he discusses the hypothesis 
of there being any fraud or imposition practised ; Avliile the fourth and con- 
cluding part, Avhich occupies more than three-quarters of the Avhole book, is 
devoted to the medical study of the facts. 
“ He devotes eighty pages to the subject of stigmatization, and a hundred to 
that of ecstasy. The author of this curious volume is deserving of the highest 
praise for the conscientious care Avith Avhich he has investigated this almost 
incredible case. I may conclude by stating that he informs me that he last 
saAv his patient on the 13tli of January, 1871, and that she continued in pre- 
cisely the same state {toujours le meme).” 
643 § 659] 
MENTAL UNSOUNDNESS. 
[BOOK I. 
of hydrophobia, and what is more, we rest satisfied with the 
fact without attempting to explain it supernatnrally, though 
the process by which this extraordinary infusion of one nature 
into another is effected is utterly inexplicable. And again, 
we see that the sun, itself an unintelligent agent, is able so to 
act upon a silver plate as to stamp in a flash the portrait of an 
intermediate object—say a human face—upon the inanimate 
metal. Is this more strange than that the passionate and 
flexible spirit of man, impregnated as it is with so many won- 
derful energies which we have never been able to test, should 
project on the soul of its fellow at least some sort of portrait 
of itself? Do we not see this constantly in social life, at least 
to some modified extent ? Have we been able as yet to sys- 
tematize and define the transforming influences of human 
affection or fear ? 
The most cautious psychologists maintain that phenomena 
such as these, or similar to these, are explicable on natural 
grounds. Thus, in Sir William Hamilton’s edition of Reid, 
we find the following passage:— 
“Ho man can show it to be impossible to the Supreme Being 
to have given us the power of perceiving external objects with- 
out any such organs;” that is, our organs of sense. “We have 
reason to believe that when we put off these bodies, and all the 
organs belonging to them, our perceptive powers shall rather 
be improved than destroyed or impaired. We have reason to 
believe that the Supreme Being perceives every thing in a more 
perfect manner than we do, without bodily organs. We have 
reason to believe that there are other created beings endowed 
with powers of perception more perfect and more extensive 
than ours, without any such organs as we find necessary.” 
To this Sir William Hamilton adds the following note: 
“ However astonishing, it is now proved beyond all rational 
doubt, that, in certain abnormal states of the nervous organism, 
perceptions are possible through other than the ordinary chan- 
nels of the sense.”(y) 
(y) See Physics and Physiology of Spiritualism, by W. A. Hammond, 
M. D. : New York, D. Appleton & Co., 1871. 
Spiritualism and Animal Magnetism, by G. G. Zerffi, London, 1871. 
644 BOOK I.] 
“ FANATICO-MANIA.” 
[§ 660 
(e4) § 660. Historical evidence of such possession.—We come 
next to tlie question whether we have evidence from history 
Article in Journ. Psyc. Med. Ass., 1872, p. 279, and in same Journal for 
1871, p. 145. 
“ For, as Sir W. Hamilton lias justly remarked, the infinitely greater part 
of our spiritual treasures lies always beyond the sphere of our consciousness, 
hid in the obscure recesses of the mind; so that, if we have ever known a 
thing, the question whether we can be said to know it at any particular time 
is simply whether we can readily reproduce it from the storehouse of our 
memory. There are some ideas which, if we may use so material an illus- 
tration, are systematically arranged in cupboards to which we have imme- 
diate access, so that we generally know exactly where to find what we want; 
this is the case with the knowledge that we have in constant daily use. And 
yet to whom has it not occurred to be unable to recollect, on the spur of the 
moment, a name or a phrase that is generally most familiar to him, just as he 
often fails to remember where he laid his spectacles, or his pencil-case, only 
five minutes before ? There are other ideas, again, which we know we have 
got put away somewhere, but cannot find without looking for them ; as, when 
we meet an acquaintance whom we have not seen for a long time, and recog- 
nize his face without being able to recall his name ; or when we go to a foreign 
country, the language of which we have once thoroughly mastered, and find 
ourselves in the first instance unable either to speak or to understand it. In 
all these cases, the lost ideas are pretty certain either to be found, if we look 
for them, by putting in action that associative train of thought which we 
term Kecollection, or to turn up, spontaneously and unexpectedly, when the 
effort to recollect has proved a failure and we have abandoned the search as 
hopeless. There is other knowledge, again, which we are not conscious 
either of possessing or of ever having possessed, as in the conjugal expe- 
rience familiar to most of us, in which a husband assures the wife of his bosom 
(the converse case being perhaps hardly less frequent) that she never did tell 
him of some occurrence which he should most certainly have remembered if 
she had ; and yet he may be brought to recollect, days or weeks afterwards, 
by the accidental shining in of a light upon some dark corner of his ‘ chamber 
of imagery,’ that the communication was really made, but was put away 
without any account being taken of it at the time. It is, we believe, the 
general creed of metaphysicians that no idea once fully apprehended by the 
mind ever permanently drops out of it; while physiologists are no less strong 
in the conviction that every mental act records itself in some change in the 
brain, which may lead to its reproduction before the consciousness at any 
distance of time, though it has shown no sign whatever of its existence during 
the interval. Thus an old man, who had left Wales in early boyhood, who 
had passed his whole life as servant to different members of the same English 
family, and who had so completely forgotten his native tongue that he was 
unable either to speak or to understand it when he received the visits of his 
compatriots, began to talk Welsh fluently in the delirium of fever, after he 
was seventy, losing all recollection of the language on his recovery. And 
645 § 661] 
MENTAL UNSOUNDNESS. 
[book 1. 
that there has ever been such a systematic deviation from the 
Divine policy as is implied by the entrance of specific evil 
spirits into specific human bodies, followed by a supernatural 
subjection of the will if not by a merging of the individuality 
of the latter in the former. There is little doubt that this 
was taught by the ancient philosophers. Plato unites in ex- 
pressly asserting the existence of demons, who, on his theory, 
are the sole supernatural agencies by which the Divine will 
operates on the human heart. iiaV 16 baiyoviov yttaZv sen Osov a 
scat Orytov. And again Epjitrjvevov scat 8ta7top0/£svov Osoi; td rtap dvOparCuv, 
scat arflptorfots rd rtapd Otav, lav y'sv rots 15 scat Ovata$, tuv Si Vaj irttraiftj 
scat dfunfias rZv 6voiav.(z) He tells us that demoniacs do not 
use their own dialect or tongue, but that of the demons who 
have entered into them.(a) Lucian declares “ the patient is 
silent: the demon returns the answer to the question asked.” 
And yet at the same time it would seem that the possibility 
of the cure of the demoniacs by medicine was recognized, 
which would scarcely be the case if the malady was regarded 
as exclusively supernatural. Thus we are told, “ Helleboro 
quoque purgatur lymphaticus error. ”(b) And Josephus and the 
Jewish physicians speak of medicines composed of stones, 
roots, and herbs, being useful to demoniacs.(c) 
§ 661. With regard to the Hew Testament history, two 
views have been taken, each of which has the sanction of 
authorities distinguished both for learning and for loyalty to 
the Christian cause. On the one hand, it is urged that the 
language of the Gospel writers is express to the very point; 
on the other, it is maintained that the accounts given by them 
may all be understood as exhibiting no more than the pheno- 
mena of certain diseases, particularly hypochondria, mania, 
there are well-authenticated cases in which, under the momentary apprehen- 
sion of drowning or of some other form of sudden death, incidents of early 
which had long been blotted out of the conscious memory, have been 
reproduced, as in a picture, with extraordinary vividness.”—London Quar- 
terly Review for October, 1871. 
(2) Plato, Syrnpos., pp. 202, 203. Lipsise, 1829, p. 252. See also Plutarch, 
De Defect. Orac. Farmer’s Essay on the Demoniacs. 
(«) Plato, apud Clem. Alex. Strom. I. 405, Oxon. 
(b) Seren. Sammon, c. 27, v. 507. (c) Gittei, f. 67. 
646 BOOK I.] 
“ FANATICO-MANIA.” 
[§ 661 
and epilepsy; that the 'popular terms were used to describe 
these diseases, just in the same way that “Possession” (Beses- 
senlieit) is now used by some of the most technical German 
psychologists to describe the same thing; and that the sacred 
penmen meant to convey no more than that the patients were 
affected with the complaints which those phrases 
It may not be considered out of place, however, to observe 
that the excessive theological liberality which, in order to 
accommodate the sacred text to the supposed requirements of 
science, resolves statements of facts into metaphors and narra- 
tives into parables, is in this, as in most other respects, insuf- 
ficient to reconcile the captious, and is unnecessary for the 
purpose of relieving the sincere inquirer. Those who have 
gone such great lengths in thus adapting the statements of 
our Lord’s treatment of the demoniacs to the supposed stand- 
ard of modern medical experience, would do well to observe 
how unnecessary their labors appear to one of the most emi- 
nent and experienced of modern physicians. “ Those who 
admit the authority of Scriptures,” says Dr. Cheyne, “ are not 
permitted to doubt that, when our Lord cured tlie demoniacs, 
he actually dispossessed them. It could not have been, as 
some have alleged, that he merely removed epilepsy or insanity. 
Without entering into all the particulars of the discussion, 
any Christian, who will read with attention the fourth and 
eighth chapters of St. Matthew’s Gospel, must reject the hy- 
pothesis of Mede, that the demoniacs mentioned in the gospels 
labored under natural diseases. In the fourth chapter it is 
expressly specified that our Lord ‘ healed all sick people that 
(fZ) The student is referred to a very comprehensive article on this point, 
by the Rev. J. F. Denham, of St. John’s College, Cambridge, in Kitto’s Bib. 
Cyc., tit. Demoniacs, in which the arguments on both sides are very fairly 
exhibited; to Farmer’s Essay on the Demoniacs; to Jahn’s Biblisches 
Archaologie ; to Archbishop Wliateley’s Lectures on Good and Evil Angels ; 
to Winer’s Biblisches Real Wortenbuch, art. “Besessene;” to Moses Stuart’s 
sketches of Angelogy, in Bibliotheca Sacra, 1843 ; to Bishop Burgess’ sermon 
on Demonology, in the Phil, course of Lectures on Evidences, Phil. 1854; 
to President Appleton’s discourse on the same ; and to a very brilliant though 
eccentric treatise, published under the title of “The Apocatastasis, on Pro- 
gress Backwards,” Burlington, 1854. See also “Physiology of Soul and In- 
stinct,” by Dr. Martyn Paine, New York, 1872. 
647 § 661] 
[book i. 
MENTAL UNSOUNDNESS. 
were taken with divers diseases and torments,’ including epi- 
lepsy, we may fairly infer, 4 and those which were possessed 
with devils,’ a separate class,4 and those which were lunatic,’ 
or of unsound mind. In the eighth chapter, the same dis- 
tinction is observable between casting out devils and curing 
diseases: sixteenth verse, 4 and he cast out the spirits with his 
word, and healed all that were sick.’ But the relation which 
decides the question is that of the miracle performed in the 
country of the Gergesenes.(e) Before we can believe that the 
two men who came out of the tombs were maniacs or epileptics, 
it must be proved that disease is not merely a mode of animal 
life, but something substantive and transferable from one class 
of beings to another—from man to the lower animals.(/) 
Without, therefore, any further attempt to determine the 
question whether demoniac possession is taught as a fact by 
history, either sacred or profane, we revert to the inquiry as to 
whether it exists at the present day. And the analysis we 
have just given of the phenomena on which such possession 
now rests, justifies us in saying, that in a lego-psychological 
view, we have no evidence of any such present existence. All 
modern phenomena can be satisfied by the recognition of the 
independent existence of that species of mania which causes 
an insane belief in the patient that he is possessed with a 
demon.(y) 
(e) Matt. viii. 28. 
(/) Essays on Derangement in connection with Religion, by John Cheyne, 
M.D., F.R.S.E., M.R.I.A., Phj'sician-General to His Majesty’s Forces in 
Ireland : Dublin, 1848, p. 68, etc. On the subject of demoniacs generally, 
Whateley’s Good and Evil Angels, Lecture VI. 
(y) Schurmayer, Gericlit. Med. § 550. For a case of supposed Demoniacal 
Possession, see Journal of Psychological Medicine, vol. iii. p. 262 ; Metzger’s 
verm. Schrift. Bd. 3, s. 217; Ces. Riiggieri’s history of the self-crucifixion 
of M. Lovati, at Venice, translated by Schlegel, Rudolst, 1807. (In the 
latter case, the patient first cut off his own private members, and then cru- 
cified himself.) Henke’s Zeitsch. E-H., 11 s. 291. (Two Swiss girls, who 
immolated themselves.) Henke’s Zeitschr. Bd. 47, p. 447. (Pyl’s essay, 6 
Samml. p. 214. (Infanticide by a demoniac.) Henke’s Zeitschr. 27 Bd. p. 
330 (Periodical Demonio-mania). Demoniacal possession, as Siebold (Ge- 
richt. Med. § 210) very justly remarks, was much more Common in former 
days than the present, and of this, to say nothing of the New Testament 
period, illustrations may be found in the many cases of witches, seers, and 
648 BOOK I.] 
[§ 662 
RELIGIOUS INSANITY. 
Where insanity is substantively proved, then supposed super- 
natural direction to commit an offence is a defence to an in- 
dictment. It is otherwise, however, where the defendant is 
sane; for the sane are responsible for the rightfulness of their 
conclusions, so far as these conclusions exhibit themselves in 
overt acts.(A) 
3) Religious insanity. 
(a4) § 662. Christianity, taken in its practical sense, has no tend- 
ency to produce insanity.—“ To tell a man be cannot save him- 
self, but that, if he trust in God, God will save him”—we 
paraphrase a passage from Coleridge—“is the lamb in wolfs 
clothing; to tell him that he can save himself without help, 
is the wolf in lamb’s clothing.” The first is mercy in a dress 
of severity; the second cruelty in a dress of mercy. “ Only 
try,” says the philosopher, “ trust in yourself, and you will 
conquer this evil habit.” “ But I have tried—I have trusted 
in myself—I have failed,and I know that if I am to be judged 
by my works, I will be condemned.” “ Only try,” says Chris- 
tianity, “ throw yourself for mercy on Christ—He will supply 
all your wants, will make up all your deficiencies, and will 
save you in the end, if you but give a childlike faith to Him.” 
JSTow, which of these two doctrines is the least likely to agi- 
tate the mind—that which thus others immediate pardon and 
future peace on the sole condition of present repentance, and 
trust, or that which makes salvation dependent on a calcula- 
tion of the sins and the good deeds of the past—which makes 
it necessary, before a sure conclusion be reached, that the 
most secret recesses of memory be searched—and which after 
all leaves the inquirer with a crushing consciousness of an 
evil nature which infuses sin into his very thoughts, and for 
which there is neither atonement nor cure ? 
The moral bearing of this question is thus admirably stated 
soothsayers, of the middle ages.—The Convulsions, etc., of St. Medard fall 
under this head. See Hecker on the Dancing Mania, Berl. 1882. Published 
also by the Sydenham Society. And also a series of very curious and valu- 
able articles on Pythonic and Demoniac Possession, in Dublin Univ. Mag. 
for Sept, and Oct. 1848, for March and Dec. 1849, and for January, 1850. 
(7i) Supra, §§ 146-162. 
649 § 662] 
[BOOK I. 
MENTAL UNSOUNDNESS. 
by Sir James Macintosh: “The enormities of Tetzel found 
Luther busied in the contemplation of the principle which is 
the basis of all ethical judgment, and by the power of which 
he struck a mortal blow at superstition. Men are not made 
righteous by performing certain actions which are externally 
good; but men must have righteous principles in the first 
place, and then they will not fail to perform virtuous actions.” 
“ The general terms he used, enunciate a proposition equally 
certain and sublime, the basis of all pure ethics; the cement 
of the eternal alliance between morality and religion, and the 
badge of the independence of both of the low notions and dim 
insight of human laws.”(i) 
(£) I particularly call attention to the following remarks of Dr. Chalmers, 
as sustaining the position in the text:— 
“And perhaps the most plain and direct vindication of the evangelical 
system, as being altogether on the side of morality, is that morality forms the 
very atmosphere both of the happiness which it offers here, and of the heaven 
to which it points hereafter. In the service of an earthly superior, the re- 
ward is distinct from the work that is done for it. In the service of God, the 
main reward lies in the very pleasure of the service itself. The work and 
the wages are the same. It is not after the keeping of the commandments, 
but in the keeping of the commandments, that there is great reward. Even 
from the little that is made known to us of the upper paradise, it is evident 
that its essential blessedness lies not in its splendor, and not its melody, and 
not in the ravishment of any sensible delights or glories, but simply in the 
possession and pay of a moral nature in unison with all that is right, and in 
the rejoicing contemplation of that Being from whose countenance there 
beams and is impressed upon all the individuals of His surrounding family 
the moral excellence which belongs to Him. The gate of reconciliation 
through the blood of Christ is not merely the gate of escape from a region of 
wrath, it is the gate of introduction to a field of progressive and aspiring 
virtue ; and it is the growth of this virtue upon earth that constitutes its full 
and its finished beatitude. The land to which every honest believer is bend- 
ing his footsteps is a land of uprightness, where the happiness simply con- 
sists in a well-attempered soul rescued from the tyranny of evil, and restored 
to the proper balance of principles and affections which had gone into de- 
rangement. It is the happiness of a living being doing as he ought, and liv- 
ing as he ought. It were a contradiction of terms to aver of such a system 
that it is unfavorable to the interests of virtue. The doctrine of justification 
by faith is not the absorbent of all human activity, but the primary stimulant 
of that busy and prosperous career in which the soul, emancipated alike from 
fear and earthly affection, rejoices in the acquirement of a kindred character 
to God, and finds the work of obedience to be its congenial and best-loved 
employment. This is the real process of effort and mental discipline that is 
650 BOOK I.J 
[§ 663 
RELIGIOUS INSANITY. 
§ 663. “But Predestination?” There is no doubt, that, if 
the doctrine of predestination he unduly dwelt upon, it may 
undergone by every honest believer, though hidden from the general eye 
under the guise of a phraseology that is derided and unknown by the world. 
He is diligent, that he may be found without spot and blameless on the great 
day of examination. It is the business of his whole life to perfect holiness 
in the fear of God. 
“ And for effecting this moral transformation on the character of its dis- 
ciples does this system of truth provide the most abundant guarantees. It 
holds forth the most express announcement that without such a transforma- 
tion there will be no admittance into the kingdom of God. And it reveals 
an influence for achieving it which is ever in readiness to descend on the 
prayers of those who aspire after the affections and the habits of righteous- 
ness. And, along with the call of faith, does it lift the contemporaneous call 
of repentance. And it marks out a path of obedience, by the urgency and 
guidance of precepts innumerable. And, so far from lulling into inaction by 
its free offer of forgiveness, does it only thereby release its disciples from 
the inactivity of paralyzing terror, and furnish them with the most generous 
excitements to the service of God, in the love, and the gratitude, and the joy 
of their confident reconciliation. And, finally, as if to shut out all possi- 
bility of escape from the toils and the employments of virtue, does it make 
known a day of judgment, wherein man shall be reckoned with, not for his 
dogmata, but for his doings ; and when there will be no other estimate of his 
principles than the impulse which they gave to his practical history in the 
world—they who have done good being called forth to the resurrection of 
the just, and they who have done evil to the resurrection of damnation. 
“ Now, all this truth has full recognition and occupancy among the articles 
of the evangelical creed ; and the doctrine of justification by faith alone, so 
far from laying any arrest on the practical influence of it, is felt by every 
genuine believer to give all its spirit and all its scope to the new obedience of 
the Gospel. Without this doctrine, in fact, there can be no agreement be- 
tween God and man, but by a degrading compromise between the purity of 
the one and the imperfection of the other ; and the point at which this com- 
promise should be struck is left undetermined, and at the discretion of each 
individual, who will, of course, accommodate the matter to the standard of 
his own performances : and thus, under all the varieties of moral turpitude, 
as well as moral accomplishment, will there be a fatal tranquillity of con- 
science, in a world where each may live as he lists ; and Heaven’s law, once 
brought down to suit - the convenience of our fallen nature, may at length 
offer no disturbance to any degree either of ungodliness or unrighteousness 
in our species. But with the doctrine-of justification by faith there is no such 
compromise. 
“The rewards of the divine government are still granted in consideration 
of a righteousness that is altogether worthy of them. The claims of the God- 
head to the perfect reverence, as well as the perfect love, of His creatures are 
kept unbroken ; and when He proclaims His will to be our sanctification, the 
651 § 664] 
MENTAL UNSOUNDNESS. 
[book I. 
injuriously affect the brain; but this is not a religious difficulty. 
Predestination operates as effectively on things temporal as on 
things spiritual. The loss of a friend, the purchase of a house, 
my going on a journey to-morrow, my taking a book this next 
moment from the library by my side, are as much the matters 
of foreordination as are the great conditions of the future. If 
religion be abandoned because it involves such speculations, so 
must all human thought whatever.^'1) 
§ 664. Reducing the controversy within its proper limits, the 
contending views may be thus stated: Philosophical necessity 
consists of the divine sovereignty, incorporating within itself, 
and recognizing as an independent power, free agency ; liber- 
tarianism, of free agency, capable, within its own range of 
action, of voluntary choice, but dependent for self-renovation 
on divine grace. In other words, each system consists of the 
same two great truths, apparently hostile, yet ever consistent 
in human consciousness. God is sovereign ; the will is free. 
disciple, as lie feels himself released from the vengeance of an unbending 
law, also finds himself to be placed in a career of exertion that is quite in- 
definite ; where he will stop short at no degree of moral excellence—where 
he can be satisfied with no assignable fulfilment whatever—where his whole 
desire and delight, in fact, will be in progress ; and he will never cease 
aspiring and pressing forward till he has reached his prize, and stands upon 
the summit of perfection. It is only under tire impulse of such principles as 
these that the mighty host of a country’s population can be trained either to 
the virtues of society or to the virtues of the sanctuary. The former may, 
to a certain extent, flourish in themselves among the children of this world’s 
prosperity. But, saving in conjunction with and as emanating from the 
latter, they never can be upheld amid the workshops and the habitations of 
industry. It is a frequent delusion that the evangelical system bears no re- 
gard to the social virtues, because in the mind of an evangelical Christian 
they are of no religious estimation whatever, but as they stand connected 
with the authority of God. But he cannot miss to observe that the sanctions 
of this authority are brought, in every page of the Bible, most directly and 
abundantly to bear upon them; and thus, in his eyes, do they instantly re- 
appear, strengthened by all the obligations, and invested with a full character 
of deepest sacredness. The integrity of such a creed as he professes is the 
best guarantee for the integrity of his relative and social conduct. And it is 
only in proportion to the presence of this derided orthodoxy that the honesties 
and sobrieties of life will spread in healthful diffusion over the face of the 
country.”—Chalmers's Christian and Economic Polity, vol. i. p. 204. 
(£') See supra, § 147. 
652 BOOK I.] 
RELIGIOUS INSANITY. 
[§ 665 
If, in respect to tlie question of the primacy of these truths, 
there should be great diversity of opinion—if by one class of 
thinkers the one is placed first, and gazed at with peculiar 
reverence, if by another the other—this is no more than we 
find in civil society, where the two parallel elements of indi- 
vidual liberty and governmental authority are subject to the 
same treatment. The question is one of temperament. In 
sociology we find, on the one side, those who look up with 
peculiar reverence to the conservative powTer of government, 
who distrust the capacity of bodies of men for self-government, 
who turn fondly to the past and sadly to the future; on the 
other side, those who, holding that true conservatism requires 
constant change in order to withstand the dilapidations of 
time, have an d priori tendency to reforms, and look upon the 
past mainly as a platform on which to raise the achievements 
of the future. To the struggles of these two classes of opinion— 
the conservative and the reforming—we owe a great part of 
the healthy action of society. hTo man would now affirm that 
either class possesses the right solely, or that the apparently 
hostile truths of human independence and of human subordi- 
nation are not concurrently recognized in political economy. 
Among those engaged in marshalling the two cardinal propo- 
sitions of metaphysical theology we may call for the same 
charity.O') 
§ 665. As is remarked by Dr. Rush, in Christian countries de- 
partures from the Christian faith (e. g. infidelity and atheism) 
are “frequent causes” of insanity.(k) And the same is equally 
(j) Wharton on Tlieism, § 128. See also supra, § 147. 
(k) Dr. Winslow, in his interesting work on suicide, gives us the following 
instances of this : “It may be mentioned, as a fact corroborating the opinion, 
that productions of an infidel character have a tendency to originate a dispo- 
sition to suicide, by weakening the moral principles ; that when the celebrated 
and notorious Tom Paine’s Age of Reason was first published, the papers 
of the day recorded many cases of self-murder, committed by persons who 
avowed that the idea never entered their heads until they had become familiar 
with the above-mentioned writer. An individual, zealous in the diffusion of 
Paine’s principles, purchased several hundred copies of his work, which he 
most industriously circulated, gratuitously, in quarters where he knew the 
doctrines of Christianity had already obtained a footing. A copy of the Age 
of Reason, elegantly bound, was received by a young lady who was acting 
653 § 665] 
MENTAL UNSOUNDNESS. 
[book i. 
true of departures in the direction of ignorant and fanatical 
superstition. The former position is readily explained. The 
in the capacity of governess in the family of a gentleman of great respecta- 
bility. The lady had no conception from whom the present came, and having 
heard of the hook she felt a curiosity to become acquainted with the doctrines 
which he inculcated. The circumstance of her having received the book 
was not mentioned to any member of the family with whom she resided, and 
in the evening when she retired to her own room she read it with great 
attention. The family noticed, in a few weeks, a perceptible alteration in the 
appearance of the young lady. She became exceedingly thoughtful and con- 
templative. Her health also appeared sensibly affected. The mother of the 
children whom she was instructing took advantage of the first opportunity 
of speaking to her on the subject. She expressed herself very unhappy in 
her mind, but refused to disclose the cause of her mental uneasiness. It was 
thought she had formed an attachment, and was suffering from the effects of 
disappointed affection. She was questioned on these points, but persisted in 
concealing the circumstances which had been operating so injuriously on her 
mind. The mental dejection increased, and the result was an alarming 
attack of nervous fever, of which she was cured by an able physician with 
much difficulty. When convalescent she was noticed one day busily em- 
ployed in writing, and when interrupted showed great anxiety to secrete the 
piece of paper on which she had been transcribing her thoughts. In the 
course of the evening of the same day, a deep groan was heard to issue from 
her room. The servant immediately entered, when, to her great horror, she 
saw the governess on the floor with a terrible gash in her throat. Assistance 
was directly obtained ; but, alas ! not in time to save the life of the poor un- 
fortunate girl. On searching her desk, a sheet of paper was discovered, on 
which she had disclosed her reasons for the rash act. She said, that, from the 
moment she read the Age of Reason, her mind became unsettled. Her pre- 
vious religious impressions were undermined; in proportion as she was 
induced to imbibe the doctrines of Tom Paine, so she became miserable and 
wretched. From one error she fell into another, until she actually believed 
that death was annihilation ; and, although she appeared firmly rooted in this 
belief, she expressed herself horrified beyond all expression at the bare idea 
of dissolution. For some time prior to her illness, she had felt an impulse 
to sacrifice her life, but had not the courage to perform the act. After 
her recovery, she felt the impulse renewed with increased strength, until, 
with a hope of escaping from an accumulation of misery which was weighing 
her to the earth, she determined to commit suicide. She also, in the docu- 
ment referred to, asked her friends to forgive her, and to take warning from 
her fate.”—Winslow's Anatomy of Suicide, pp. 87-89. It has been asserted, 
and remains uncontradicted, that Mr. Hume lent his Essay on Suicide to a 
friend, who, on returning it, told him it was a most excellent performance, 
and pleased him better than anything he had read for a long time. In order 
to give Hume a practical exhibition of the effect of his defence of suicide, his 
friend shot himself the day after returning him the essay.— Winslow's Ana- 
tomy of Suicide, pp. 31, 32. 
654 BOOK I.] 
RELIGIOUS INSANITY. 
[§ 666 
soul, as well as the body, to enable it to stand steadily, requires 
that the eye shall be fixed upon some distant and external 
point. Ho man, for instance, can stand for any time on one 
foot if he fixes his eye on his own person ; and he succeeds in 
maintaining his upright position precisely to the extent he is 
able to fix his eye firmly on a point in the distance. And in a 
psychological view this is readily explicable. It is only by the 
recognition of a future state that the soul can be effectually 
steadied in this. And it is precisely such a system as the 
Christian religion describes—one wThich affords a positive 
assurance of immortal peace to those who seize upon it for 
their portion—which, while it recognizes that innate depra- 
vity, which the heart is hut too ready to testify to from its 
own experience, promises divine aid in the struggle—which 
announces the pardon of past sin, while it affords the aid and 
succor of divine grace. 
“ I envy no qualities of the mind or intellect in others, nor 
genius, nor power, nor fancy,” says Sir H. Davy: “but if I 
could choose what would be most delightful, and, I believe, 
most useful to me, I should prefer a firm religious belief to every 
other blessing: for it makes life a discipline of goodness; creates 
new hopes when all earthly hopes vanish ; and throws over the 
decay, the destruction of existence, the most gorgeous of all 
lights ; awakens life in death, and calls out, from corruption 
and decay, beauty and everlasting glory.” 
The habitual practical recognition and adoption of such a 
system as this must necessarily generate a sobriety of temper, 
which will of all others be the most distant from derangement. 
That the reception of Christianity, whether real or nominal, 
should cure insanity, is no more to be expected than that it 
should cure the smallpox. If it did—if a special miracle was 
wrought for the purpose of destroying the original character- 
istics of each individual—it would not only destroy moral 
agency and hence break up probation, hut would produce an 
almost entire derangement of human affairs by obliterating 
the marks of individuality, to say nothing of identity. 
§ 666. To the same effect are the following just observations 
of Dr. Copland: “ It must not be supposed, from what I have 
advanced, that the Christian religion is truly chargeable with 
655 § 607] 
MENTAL UNSOUNDNESS. 
[book I. 
causing insanity ; it actually lias an opposite tendency. Mis- 
taken views, excessive fervor, unfounded fears, and various 
feelings arising from these sources, are the only causes of 
insanity in connection with religion. Among those who 
entertain just and sober opinions on religious topics—who 
make Christian doctrines the basis of their morals, the gover- 
nors of their passions, the soothers of their cares and their 
hopes of futurity—insanity rarely occurs. The moral causes 
of derangement which would not fail of producing injurious 
effects on others prove innocuous in them, for these causes 
would be met by controlling and calming considerations and 
sentiments, such as would deprive them of intensity or neutral- 
ize their effects. Truly religious sentiments and obligations 
soothe the more turbulent emotions, furnish consolations in 
affliction, heal the wounded feelings, administer hopes to the 
desponding, and arrest the hands of violence and despair.”(7) 
§ 667. And the testimony of Dr. Cheyne, who stood for 
many years at the head of the medical profession in Ireland, 
occupying the responsible post in that kingdom of physician- 
general to the forces, is equally emphatic: “ Our experience of, 
and inquiries into the nature of insanity, during a period of 
forty years,” he says “ enable us to say that such cases as that 
which we have just related” (those of insanity from morbidity 
of the religious affections), “ are not in the proportion of one 
in a thousand to the instances of insanity which arise from 
wounded pride or disappointed ambition.”(m) “ True religion,” 
he tells us in another place,(n) “ is a preservative, although 
not a complete preservative, against derangement of the mind. 
We have no intention of concealing that we have known 
instances of insanity among believers, but it was not caused 
by their creed. We have also known instances in which all 
sense of religion has been permanently destroyed by insanity. 
Of such cases we would remark, that the believer lias no right 
to expect for his believing friend exemption from evils arising 
from the state of the body on which insanity always depends. 
(?) Copland, Med Die., art. “Insanity.” 
(to) Clicyne on Derangement in Connection ■with Religion, pp. 178, 179. 
(n) Ibid., p. 146. 
656 BOOK I.] 
RELIGIOUS INSANITY. 
li 668 
Let him moreover recollect, that, as total insanity puts an end 
to moral accountability, nothing which may take place during 
a paroxysm of the disorder can affect the future happiness of 
his friend.” 
“ "When fairly examined,” says Dr. Combe, “ the danger is 
seen to arise solely from an abuse of religion, and the best safe- 
guard is found to consist in a right understanding of its prin- 
ciples and submission to its precepts. For, if the best Christian 
be he who, in meekness, humility, and sincerity, places his 
trust in God, and seeks to fulfil all his commandments, then he 
who exhausts his soul in devotion, and at the same time finds 
no leisure or no inclination for attending to the common 
duties of his station, and who, so far from arriving at happiness 
or peace of mind, becomes every day the more estranged from 
them, and finds himself at last involved in disease and despair, 
cannot be held as a follower of Christ, but must rather be 
held as a follower of a phantom assuming the aspect of reli- 
gion. When insanity attacks the latter, it is obviously not 
religion that is its cause ; it is only the absence of certain 
feelings, the regulated activity of which is necessary to the 
right exercise of religion; and against such abuse a sense of 
religion would, in fact, have been the most powerful protection. 
And the great benefit of knowing this is, that, whenever we 
shall meet with such a blind and misdirected excess of our 
best feelings in a constitutionally nervous or hereditarily 
predisposed subject, instead of encouraging its exuberance, we 
should use every effort to temper the excess, to inculcate 
sounder views, and to point out the inseparable connection 
which the Creator has established between the true dictates of 
religion and practical duties of life, which is a part of his pur- 
pose in sending us here to fulfil.” 
§ 668. These views are not uncorroborated by practical ob- 
servation. It is not necessary to record the cases where mania, 
particularly that of the suicidal cast, has been generated by an 
undue estimate of the importance of this life’s incidents as 
compared with those of the next.(o) On the other hand, we 
(e>) Dr. Rush, after noticing tlie fact that 150 suicides took place in Paris 
in the year 1782, and but 32 in London, says, “It is probable the greater 
vol. i.—42 
657 § 668] 
MENTAL UNSOUNDNESS. 
[book i. 
may find a pregnant illustration of the converse process in the 
fact mentioned in the thirteenth report of the Hartford Re- 
treat, that two hundred and eight farmers, fifty-eight mer- 
chants, and thirty-four day-laborers have been admitted into 
that institution to four clergymen.(p) So a report of the Hew 
portion of infidels in the former than in the latter city, at that time, may 
have occasioned a difference in the number of deaths in the two places, for 
suicide will naturally follow small degrees of insanity, where there are no 
habits of moral order from religion, and no belief in a future state.”—Bush 
on the Mind, p. 69. 
(p) The chaplain in the same report states: “ The usual week-day services 
in the chapel of the institution, singing, reading the Scriptures, and prayer, 
have been performed during the year. On the afternoon of the Sabbath, 
there have been religious exercises similar to those in other Christian con- 
gregations. The singing is still conducted by a choir composed of the at- 
tendants and patients, and adds much to the interest and value of the services. 
In these various exercises the patients have engaged with gratifying decorum 
and solemnity. Strangers who for the first time are present at our worship 
in the chapel often express surprise at their apparent devotion, and the still - 
ness and steady attention with which they listen to divine truth. Indeed, it 
is believed that few congregations of the sane, in an ordinary state of feeling, 
exceed them in these respects. 
“A sense of need opens away for the gospel to the hearts of these sufferers. 
The service checks, for a few moments at least, the dark current of sorrow, 
calls the wandering mind away from its delusions, and aids in forming a 
healthful self-control. A sense of propriety, the strong associations connected 
with such scenes in happier days, and the quiet of fellow-worshippers, com- 
bine to restrain outbursts of feeling which they are often unable to resist in 
their own rooms. And aside from these influences of religious worship, who 
shall set limits to the great Physician of both soul and body, in making the 
gospel a means of moral renovation to the deranged mind. 
“Increasing experience strengthens my conviction that the distinguishing 
principles of the gospel are no less adapted to the mind when disordered, than 
when in its normal state. In the former case, indeed, more care and a different 
mode of exhibition are demanded ; but these principles, unfolded calmly and 
clearly, in the sober manner of the Bible, will find as ready and intelligent 
and cordial a response in a congregation of the insane as in most others. 
“ The full value of the gospel in relation to mental derangement, both as a 
preventive and a remedy, is not, it is believed, fully appreciated. Official re- 
ports show that cases of insanity, in great numbers, result from causes against 
which the controlling daily influence of religious principle would guard the 
mind. By checking vices which prey on the body and mental feelings, such 
as envy, jealousy, inordinate grief, which waste its energies, the gospel pre- 
vents diseases that result in insanity.” 
The fact, that sound religious discipline exercises a salutary influence in as- 
suaging the malady, does not, of course, go to refute the position that unsound 
658 BOOK I.] 
RELIGIOUS INSANITY. 
[§ 669 
York State Lunatic Asylum, transmitted to the legislature on 
February 7, 1860, and which therefore covers a period of un- 
common religious interest, out of 812 cases gives only six 
which are attributed to “religious excitement.” The cases 
attributable to causes religion could have corrected are ten 
times that number. Dr. Ray, in a report of the Butler Hos- 
pital for the Insane, says: “ I believe—and it is in some mea- 
sure the result of considerable observation of various psycho- 
logical states—that in this age of fast living nothing can be 
relied upon more surely for preserving the healthy balance of 
the mental faculties than an earnest practical conviction of the 
great truths of Christianity.” 
(64) § 669. What is called religious insanity is produced: (a5) 
By a departure from practical Christianity; (a6) Reliance on 
frames and emotions.—Mr. Brownlow Horth, who may be 
fairly taken as the representative of the most active phase of 
religious activity, thus speaks on this point: “Many imagine, 
religious excitement may not have produced it; but it does show that a judi- 
cious presentation of the sanctions of religion—even involving the most 
solemn features—is a conservative and not a distracting influence. The re- 
ports of Dr. Kirkbride and Dr. Woodward are strong to this point; and we 
cannot refrain from adding to them the following testimony from Miss Dix:— 
“ That among the hundreds of crazy people with whom her sacred missions 
have brought her into companionship, she has not found one individual, how- 
ever fierce and turbulent, that could not be calmed by Scripture and prayer 
uttered in low and gentle tones. The power of religious sentiments over those 
shattered souls seems miraculous. The worship of a quiet, loving heart 
affects them like a voice from heaven. Tearing and rending, yelling and 
stamping, singing and groaning, gradually subside into silence, and they fall 
on their knees, or gaze upwards with clasped hands, as if they saw through 
the opening darkness a golden gleam from their Father’s throne of love.” 
Armed with this gentle influence, we are told by an observer, she does not 
fear the violence of the madman. Well do we remember an instance that we 
heard from her own lips, in which she entered the cell of a maniac, against 
the remonstrances of the terrified keeper. As she persisted in entering, the 
door wTas instantly closed behind her to prevent escape. Alone she stood face 
to face with that wild man. He raised himself in a threatening attitude, and 
glared upon her with his fierce eye. She opened the Bible and read the words 
of a Psalm. After a few lines, he bent his head to listen. The look of rage 
and terror passed from his countenance. His eye grew less wild, and sent 
forth sweet, blessed tears, until the madman sank down at that helpless 
woman’s feet. And, as she finished, he said, “Will you read those words 
again ?” 
659 § 670] 
MENTAL UNSOUNDNESS. 
[BOOK I. 
unless they are at all times in a glow of fervor, an ecstatic 
frame of feeling, all must he wrong with them. But there is 
nothing more dangerous or deceptive than a life of mere feel- 
ing ; and its most dangerous phase is a life of religious emo- 
tional excitement. It is, in the last degree, erroneous to con- 
sider all this glowing ecstasy of frame a necessary condition of 
healthful spiritual life.” 
John Newton was the religious adviser of Cowper, and has 
been charged by Hayley, if not by Southey, with having ag- 
gravated, by his emotional theology, Cowper’s insanity. Yet 
how unjust this is, Newton’s earnest and repeated appeals 
show. “ lie who wants to tell experiences,” said he at one 
time, “will soon be creating experiences to tell.” “ A humble, 
dependent frame of spirit, perseverance in the appointed means, 
care to avoid all occasions of sin, a sincere endeavor to glorify 
God, an eye to Jesus Christ as our all in all, are sure indica- 
tions that the soul is thriving, whether sensible consolation 
abound or not. Neither high nor low frames will do for a stan- 
dard of faith; be strong in Could there be 
wiser advice than this for the purpose of steadying the mind? 
And is not the certain faith on an extrinsic Providence far 
more likely to conduce to mental peace and rest, than that 
flurried and fluctuating introspection which makes salvation 
depend upon one’s present impression of self? 
iff) § 670. Appeal to unscriptural supernaturalism.{qx)—Two 
cases of alleged fanatico-mania occurred in 1858, one in Ger- 
many and one in New Haven, which, from their striking 
similarity, as well as from the peculiar religious psychologi- 
cal phenomena by which they were attended, should receive 
(g) Cited in “ Man, Moral and Physical,” by Rev. J. H. Jones, a work of 
great interest in reference to religious insanity and melancholy. 
(ql) Shakspeare thus speaks :— 
“ Because you lack the faith that others have, 
You judge it straight a thing impossible 
To compass wonders save with help of devils.” 
Of alleged homicidal insanity produced by “ fanatico-atheism,” a case of 
much interest, that of Bieland, who, in 1869, shot a Berlin clergyman while 
engaged in performing divine service, will hereafter be reported in full. Infra, 
Appendix, 8 833. 
660 BOOK I.] 
RELIGIOUS INSANITY. 
[§ 670 
the thoughtful attention of all in any wise concerned in the 
care of the mind. In both instances, the scene was the bosom 
of a religious society, whose leaders pretended to have received 
special internal revelations from God. In each case, the “ pro- 
phets,” as those who claimed such revelations called them- 
selves, asserted the right to suspend human laws and even 
divine precepts in obedience to the mandates which they 
maintained were revealed in the chambers of their own souls. 
It is difficult to deny that they were in one sense sincere. 
However much the delirium in which these visions were heard 
was originally of their own creation, it had become, as de- 
lirium tremens is to the man who at first made himself volun- 
tarily drunk, so wrought into the system as to be convulsive, 
if not irresistible. In the Hew Haven case, though the investi- 
gation was not conducted by men of the highest skill or most 
mature experience, this opinion was sanctioned by the verdict 
of a jury. In the German case the most experienced psycho- 
logical physicians united in the position that the delusion, 
whatever might have been its origin, had finally become in- 
voluntary. In the latter case, the parties had joined a sect 
called the “Apostolic Baptismal Community,” which is a sort 
of composition between the German Anabaptists (Wieder- 
taufen) and the Irvingites. Their ministry is divided into 
apostles, prophets, evangelists, shepherds (Hirten), and deacons; 
all distinguished by a special costume. They pretend to spe- 
cial and miraculous communications of the divine will, which 
communications are attended on the part of the recipient by 
convulsions, which, however they may have been originally 
feigned, have in many cases assumed the indisputable type of 
cataleptic ecstasies. In these the patients speak with what 
are called unknown tongues and prophesy. It so happened 
that at one of their meetings two of the ministers received, 
as they declared, a direct supernatural command to kill one of 
their associates and then to bring him to life again. The first 
injunction they executed, but failed in the second. The ques- 
tion of their responsibility being submitted to medical exami- 
nation, Dr. Franz, a very distinguished psychologist, came to 
the conclusion that their moral sense had become so utterly 
661 §671] 
MENTAL UNSOUNDNESS. 
[book I. 
corroded, as to make perpetual confinement in a madhouse 
the only discipline to which they could properly he subjected. 
§ 671. Now, to what are these phenomena to he traced ? To 
Christianity, as one class of thinkers is but too ready to say ? 
We apprehend not, for Christianity is emphatically a religion 
with a written and positive, as distinguished from an emotional 
and mystic, creed. Is it not rather in the departure from the 
Scriptural rule that we may find the origin of these melan- 
choly excesses? Let us trace them, for instance, to their 
source by those stepping-stones which so often enable us to 
follow the progress of an error from its inception to its close. 
Take, for instance, such a case as that of the Rev. David 
Austen, whose sad history is so touchingly told by Dr. Sprague 
in his history of the American pulpit. Mr. Austen began as 
a Presbyterian clergyman, and was marked, not only by his 
purity of life and his talents, but by his great efficiency as a 
pastor and influence as a preacher. Gradually, however, the 
objective side of revelation began to sink in his estimation, 
and the subjective to become exaggerated. lie had visions 
which overrode the written word. The Lord had been pleased, 
he said, to deposit in his breast the secret of His coming. 
This and other revelations Mr. Austen began soon to proclaim 
with serene confidence and with startling effect. He fixed an 
actual day, in which he said the event was to take place. Crowds 
attended, and an excitement followed, which, if it did not cost 
others their reason, at least cost him his. The fact that the 
sun set calmly on the predicted day did not shake his con- 
fidence. “The hour on the dial-plate,” he said, “may have 
been mistakenbut it was none the less true that the sun of 
the Divine Omniscience poured infallible light on the disk of 
his soul, opening to it those mysteries which the sublime 
imagery of the Apocalypse conceals. The Jews were to form 
an important element in the approaching catastrophe. They 
were to collect, he was assured, at New Haven preparatory to 
their migration to the Holy Land. He proceeded there to buy 
wharves as a depot for their embarkation. Being a man of 
considerable property, he obtained credit and bought four times 
as much land as he could pay for. Then came a crash, which 
ended with his arrest and imprisonment. When he at last 
662 BOOK I.] 
RELIGIOUS INSANITY. 
[§ 671 
emerged, it was only as a broken-hearted as well as a deranged 
man, whose melancholy office it was to hover, during the re- 
mainder of his sad and long life, as a ghost over the grave of 
his dead usefulness. 
Now, is it saying too much for us to attribute these and 
similar cases of supposed supernatural inspiration to that in- 
troversion of the spiritual and intellectual powers which makes 
personal emotions and experience the subject first of tender 
nursing and then of fatuous idolatry ? “ Come, let us look at 
this sensibility of mine!” cries the enthusiast, as he lifts it up 
in the air and ponders over it admiringly. The consequence 
is, that his perception of his emotions, as all introverted per- 
ceptions are, becomes exaggerated and confused. We all have 
familiar illustrations of this in the way in which when we 
turn the perceptive powers inward on a lost memory, e. g., the 
spelling of a forgotten word—the more we think about it, the 
further off we get. The very act of introversion seems to 
paralyze our powers. So, also, if the public speaker, while in 
the flow of earnest thought, finds his consciousness suddenly 
turned in upon himself, the moment he thinks of himself, he loses 
his balance. This is thus forcibly illustrated by the Rev. C. 
H. Townsend, late of Trinity Hall, Cambridge, in his very 
curious work on Mesmerism :—(r) 
“ Any admixture of the introspective consciousness detracts 
from the perfection of one’s acquired and habitual motions as 
much as it spoils the freedom and bold expansion of our 
thoughts. Of this we may soon convince ourselves. Though 
generally insensible of the act of breathing, we may, by atten- 
tion, become aware of the process. What follows ? An im- 
mediate sense of uneasiness and interruption of that regular 
motion which seems to go on so well of itself. Again, that 
winking of the eye, whereby the organ is healthily preserved, 
becomes a torment if we think about it. Again, too, every 
musician must have felt that when he has learned to play a 
piece of music by heart, if he thinks upon the direction of his 
fingers, he plays false. Let him trust to the simple memorial 
consciousness of his physical being, and he does not err.” 
(r) London, 1844, p. 20. 
663 § 673] 
MENTAL UNSOUNDNESS. 
[BOOK I. 
§ 672. The true test, we apprehend, is to be found in the 
nature of the consciousness on which the claim to a Divine 
influence rests. If this consciousness be of the action of God’s 
spirit in producing specific graces, it is in harmony with God’s 
word. If, on the other hand, it amount merely to a vague 
but arbitrary idea of the presence of God’s Spirit without such 
signs, it is open to grave question. Coleridge strikes at this 
when he tells us that one of the phenomena attending the 
possessors of fanatical delusions is, “ that it is not enough that 
you grant them a consciousness of the gifts and graces infused, 
or an assurance of the spiritual origin of the same, grounded 
on their correspondence with the Scripture promises, and their 
conformity with the idea of the Divine Giver. Yo! they all 
alike, it will be found, lay claim, or at least look forward to, 
an inward perception of the Spirit itself and of its operating.” 
§ 673. Let us reduce this test to practice. Take, for in- 
stance, the inspiration of Brigham Young. “ It is the Spirit 
working within me” to do, not this or that specific work of 
grace, but whatever work, no matter what may be its nature, 
in which I may happen to be engaged. So it was with the 
Anabaptist fanatics at Munster. The human will is not sub- 
jected to the Divine Spirit, but the Divine Spirit to the human 
will. The man is not judged by his conformity to the Spirit, 
but the Spirit by its utterance through the man. What Brig- 
ham Young claims is not to act in the Spirit, for, if so, his 
claims could be tested by the written Word, and by the natural 
law of conscience. But he claims to be the Spirit’s organ, and 
thus to clothe with divine power his human utterances. So 
it is with the maniac who murders his wife and children under 
an alleged religious impulse. He bases his claims to the in- 
spiration of the Spirit, not on the gracious affections wrought 
in his soul, but in the arbitrary pretence of a divine presence 
incorporating itself in, and manifesting itself through, his own 
will.(s) 
(s) See on this topic the remarkable volume, which has been already no- 
ticed, under the title, “ The Apocatastasis, or Progress Backwards, a new 
tract for the times, Burlington, Chauncey Goodrich, 1854,” to which the 
reader is referred for a very effective exhibition of the absurdity of the whole 
spirit-rapping system. 
664 BOOK I.] 
RELIGIOUS INSANITY. 
[§ 674 
• § 674. The history of religious insanity in this country goes 
a great way to fortify the position that it is to a departure 
from the gospel system that most cases of what may be called 
dsemonio-mania may be traced. On this point a thoughtful 
writer, whose attention has been particularly given to this 
topic, thus speaks :—(t) 
“ Passing over the many instances of such erratic and fana- 
tical extravagances which history records, and to some of 
which the review before us alludes, we will glance at two 
recent and notable ones occurring among ourselves, that we 
may the better judge whether religion makes men insane, or 
whether it merely fails, in many cases, to bring them to their 
right mind ; so that it may he said that they continue insane 
in spite of all that religion can do for them. 
“Aclergyman, in infirm health,sought to amuse his listless 
hours by framing a puerile romance, after the manner of east- 
ern fabulists, with names, dates, and localities bearing no re- 
lation to sober history. These writings, in some way, without 
the author’s privity, came into the hands of strangers. In 
1826, one Joseph Smith professed to have found, in the town 
of Palmyra, £7. Y., some brass plates inclosed in a box, such 
as is used for packing window-glass. Of these plates he 
pretended to be the interpreter. With a stone in his hat, and 
his hat over his eyes, he dictated what a man, named Harris, 
wrote. In consequence of some dispute, Harris departed before 
the interpretation was ended, and one Cowdrey took his place, 
and completed the ‘Book of Mormon.’ Smith then avowed 
himself a prophet, and the founder of a new dispensation, and 
gathered many disciples, who accompanied him to the State 
of Missouri, where they established a city and built a temple. 
We need not pursue their adventures. 
“ The contents of the Book of Mormon, or the Mormon 
Bible, were neither more nor less than the selfsame tales of 
romance which the invalid clergyman amused himself with 
writing. A large number of persons, however, embraced the 
delusion; many abandoned a profitable business, some sacri- 
(£) Relations of Religion to Diseases of the Mind. Phila. : J. W. Moore, 
1850. / 
665 § 674] 
MENTAL UNSOUNDNESS. 
[BOOK I. 
ficed large property, and not a few were ruined in soul, body, 
and estate, by putting trust in this barefaced imposture. 
“ It is perfectly obvious, we think, that a mind well in- 
formed and established in the received doctrines of the 
Christian faith, and endued with but very ordinary discern- 
ment, would be proof against so bold an imposture. If any 
intelligent and respectable persons joined the Mormon ranks, 
that, of itself, shows either a predisposition to insanity, which 
this fanciful revelation was fitted to develop, but with which 
religion has no connection whatever; or that there is a defi- 
ciency of discernment, or a neglect or abuse of the reasoning 
powers, or a morbid love of distinction and notoriety, to 
gratify which they are willing to sacrifice all other interests. 
If a judicious, faithful parent or Sunday-school teacher had 
given direction to their inquiries, and furnished their minds 
with just and systematic, though exceedingly simple, views of 
the doctrines of revelation, they would have had balances 
wherewith to weigh the pretensions of the new prophet, and 
by means of these vanity and falsehood would have been made 
manifest. 
“At a somewhat later period, a man named Miller (a Baptist 
minister, as it is said) professed to have had a revelation of 
the precise day on which the second advent of Christ would 
occur, and when his people would be called to rise and meet 
him in the air! He and his deluded apostles, or agents, went 
from town to town and from house to house, ‘ leading captive 
silly women,’ and imposing upon the credulity of the ignorant. 
So settled was the conviction of many minds of the truth of 
his predictions, that they arranged their worldly affairs in 
reference to it, as an ascertained event, and made no contracts 
extending beyond the designated day. Prosperous citizens 
sold their estates, and declined the ordinary avocations of life, 
that they might give themselves wholly to the business of 
preparation; and, as the eventful period drew nigh, many 
evinced the sincerity of their convictions by providing what 
they regarded as suitable apparel for an aerial flight, and some 
actually assembled in groups upon summits which might be 
supposed most favorable to an early and easy ascension ! The 
dupes of the false prophet were counted by thousands. Scores 
666 BOOK I.] 
RELIGIOUS INSANITY. 
[§ 675 
were committed to insane asylums, who were crazed with ex- 
citement, or with disappointment; and many within and with- 
out the charmed circle were doubtless left to believe that all 
revelations are as idle and delusive as Millerism.(w) 
“We need not say how the plainest Scriptures must have 
been wrested from their true intent and meaning, nor how 
deaf an ear must have been turned to the voice of reason and 
common sense, before the mind could have surrendered itself 
to such a fancy. There is not a trace of insanity, however, in 
any stage of the process. It is a simple, voluntary subjection 
of reason to the influence of imagination or superstition, in- 
stead of a childlike submission of all the powers and faculties 
of body and mind to the revealed will of God. And although 
we may admit that such delusions have in many instances been 
the ostensible cause of insanity, as our hospital returns allege, 
‘revealed religion’ is no more responsible for them than for 
paroxysms of mania-a-potu. It is because the plain truths of 
revealed religion were misapprehended, perverted, or rejected, 
that the imposture succeeded, and the mind was led captive by 
Satan at his will. It is not strange that a vessel left to itself 
on a stormy sea should, sooner or later, go to the bottom, or 
fall into the hands of wreckers.”(v) 
(e6) § 675. Appeal to the selfish element.—This topic, which 
has already been collaterally noticed,^1) opens a very sad view 
of the human character. In all periods of mental excitement, 
there is a tendency to claim sympathy from outside. Let us 
take an illustration of this. A person is struck down by 
real grief. When in this state the sympathy of friends is 
attracted by peculiar demonstrations of broken-heartedness. 
These demonstrations are at first real, but, in consequence of 
the commiseration they receive, are permitted to continue 
without restraint, and then become at least partially affected. 
“ The pleasure of receiving unwonted sympathy,” to recur to 
a passage from Dr. Carter, already cited, “ once tasted, excites 
a desire for it which knows no bounds; and, when the fits 
(u) See an essay on this point, in 1 Am. Journ. of Insanity, 249. 
(«) Relations of Religion to what are called Diseases of the Mind. Phila- 
delphia : J. W. Moore, 1850. 
(«') See supra, § 517. 
667 § 676] 
MENTAL UNSOUNDNESS. 
[book i. 
have become familiar occurrences, and cease to excite atten- 
tion, their effect is heightened by the designed imitation of 
some other disease.” There is a strange union in such cases 
of the voluntary with the involuntary, which partly subjects 
craft to convulsion, and partly convulsion to craft. But after 
a while, particularly if the 'petting system on the part of friends 
continues, the disease becomes chronic, and degenerates into 
hysteria. Even then there is cunning employed in the resort 
to new devices by which fresh sympathy can be collected when 
the old stock is exhausted. 
§ 676. So also in periods of popular excitement, either on 
religion or any other prominent topic. Let the love of atten- 
tion be appealed to—let public interest be drawn to persons 
exhibiting certain symptoms—and these symptoms will be 
assumed, until at last hypochondriasis or hysteria follows. In- 
tense self-consciousness, the power of imitation, and the desire 
to excite interest, generate this form of disease, which, in its 
turn, generates a refined and elegant but misanthropic selfish- 
ness. 
“ There is one perversion of moral feeling,” says Archdeacon 
Stopford, in a pamphlet published at the time of a revival in 
Ulster in 1858-9, “ which always exists in hysteria, and more 
than anything else may make us doubt whether hysteria be 
chosen of God as a means of conversion, and that is selfishness. 
How, I protest against being thought to imply that all persons 
who are hysterical are constitutionally selfish. I have known 
the contrary in several instances, and I know the effect in 
such cases of appealing to unselfish feeling; but it will be 
easily understood from the foregoing account, that the predo- 
minance of the idea of ‘ self’ as the object of the mind is of 
the very essence of the disease, and it is the necessary conse- 
quence of this, if allowed to proceed, to engender selfishness ; 
the woman who habitually indulges hysterical feeling, becomes 
the most selfish and unsympathetic being in the world, except 
one—the man who indulges and cherishes hypochondriacal 
feeling. 
“ I must suggest caution in coming to an opposite conclusion 
on apparent evidence to the contrary in mild forms of hysteria 
in its incipient stages. I struggled long against admitting that 
668 BOOK I.] 
RELIGIOUS INSANITY. 
[§676 
the predominance of the idea of ‘ self ’ in hysteria always con- 
tains the germ of selfishness; but I had to admit the conviction, 
that this is true. As hysteria grows by habit or indulgence, all 
its evils become apparent; but a trained observer detects the 
germs in its origin.’’(ty) 
(w)' In connection with the above, it is well to call attention to the follow- 
ing remarks of a very sagacious and experienced physician, Dr. Francis : 
“In at least three cases out of four, I have found hysteria associated with 
uterine derangement, and the restoration of the menstrual function to its 
healthy state has proved the precursor of the removal of the hysterical an- 
noyance.” Hysteria, again, may manifest itself chiefly by disorder of the 
mental faculties, and the moral feelings and emotions. “ The mental affec- 
tions,” observes Dr. Copeland, “connected with hysteria maybe referred, 
1st, to certain states of monomania, among which excited desire, amounting 
in some cases to nymphomania, may be enumerated ; 2d, to ecstasies and 
mental excitement, in some cases of a religious nature, in others of different 
descriptions; 3d, to a state of somnambulism ; 4tli, to a form of delirium, 
generally of a lively character, with which various hysterical symptoms are 
often conjoined. “ Hysterical females are not merely capricious or whimsical, 
but they often become enthusiastic for a time in the pursuit of an object, or 
in cherishing an emotion by which they have been excited. In many such 
cases the nervous excitement and vascular turgescence of the uterine organs 
determine the character of the mental disorder ; elevating certain of the moral 
sentiments, or of the intellectual manifestations, to a state of extravagance, 
passing in some instances into delusion or monomania. Many cases of puer- 
peral mania are merely extremes of the hysterical disorder of the moral and 
intellectual powers or states of the mind. All these more extreme forms of 
mental affection are observed only where, in connection with much local or 
uterine irritation, there is a great deficiency of nervous energy generally, and 
of mental power in particular ; or where, with such deficiency, there has 
been much injudicious culture, or perversion, or improper excitement of the 
imagination. Females sometimes become passionately attached to an object, 
and this passion may advance even to nymphomonia or monomania.” A 
diseased state of feeling (viewing feeling as constituting with thought the 
two factors of the mind) is the main ingredient of religious insanity in which 
the sexual sympathies are involved. “ No physiologist,” says Dr. Maudsley, 
in his lectures published in 1870 (Body and Mind, London, 1870, p. 85), 
“can well doubt that the mystical union of the sexes lies very close to a 
union that is in nowise mystical, when it does not lead to madness.” He 
cites to this effect the trances of St. Theresa and St. Catharine de Sienne; 
and he mentions as more extreme examples the cases of those insane women 
who believe themselves to be visited by lovers or ravished by persecutors 
during the night. And he adds that “ sexual hallucinations, betraying an 
ovarian or uterine excitement, might almost be described as the characteristic 
feature of the insanity of old maids.” See supra, §§ 322, 517. 
669 § 679] 
MENTAL UNSOUNDNESS. 
[BOOK I. 
(b5) § 677. By constitutional idiosyncrasies.—This topic has 
been previously noticed.(:r) 
(c3) Fanatico-mania as a defence. 
§ 678. Crimes committed under the influence of fanatical 
impulses, such as those which have been just mentioned, may 
be considered in the same light as crimes committed in 
of drunkenness. In the latter case, an individual who know- 
ingly takes intoxicating liquor, cannot defend himself on the 
fact of guilt by proof of his intoxication. It is otherwise, 
however, when the guilty act is the immediate result of rnania- 
ci-jjotu, in which case the malady has assumed the shape of a 
substantive and permanent type, and, like any other delirium, 
is to be treated as destroying responsibility.(y) In like man- 
ner, the voluntary adoption of a belief which includes among 
its incidents a known violation of law, does not relieve the 
party, who commits such violation of law under such influ- 
ences, from responsibility.(2:) If, however, he sink into con- 
sequential delirium, and then commit the crime, he is irrespon- 
sible. 
Fanatical enthusiasm, whether religious or irreligious, does 
not, therefore, by itself confer irresponsibility, however much it 
may mitigate the sentence imposed.^1) 
(l2) Politico-mania.(a) 
§ 679. “ Psychical infection,” to use the expressive term of 
Ellinger, is peculiarly operative in political relations. Attempts 
at insurrections, acts of lawlessness against government, mur- 
derous assaults upon public officers, become at times epidemic. 
Marc illustrates this by the cases in which public conspicuous 
crimes have become contagious; e. y., arson and murder. The 
tendency to seditious violence is generated by an oppressive 
(x) Supra, §§ 345-378. 
(y) See supra, §§ 146-162. 
(2) Ibid. See 3 Am. Jour. Ins. 166 ; and for report of Thom’s case, ibid. 
170. See also 4 Hammond’s Journal Psyc. 657. 
(s') Ibid. See for a curious case of infidel fanaticism, Appendix, § 833. 
(a) See on this point Influence des Evtinemens et des Commotions Politiques 
sur le Developpement de la Folie, par le Docteur Belhomme, Paris, 1849 ; and 
a review of the same in Journ. Psych. Med. vol. iii. p. 31. 
670 BOOK I.] 
“ POLITICO-MANIA.” 
[§ 681 
government bearing on temperaments tainted with just such 
an infection. 
§ 680. “Certain forms of government,” says Dr. Rush, “pre- 
dispose to madness. They are those in which the people 
possess a just and exquisite sense of liberty, and of the evils 
of arbitrary power against which complaints are stifled by a 
military force. The conflicting tides of the public passions, 
by their operations upon the understanding, become in these 
cases a cause of derangement. The assassination of tyrants 
and their instruments of oppression is generally the effect of 
this disease. That madness is thus induced, I infer from its 
occurring so rarely from a political cause in the United States. 
I have known but one instance of it, and that was of a gen- 
tleman who had been deranged some years before, from debt 
contracted by extravagant living. (In a government where.all 
the power of a country is representative and elective, days of 
general suffrage and free presses serve, like chimneys in a 
house, to conduct from the individual and public mind all the 
discontent, vexation, and resentment which have been gene- 
rated in the passions by real or supposed evils, and thus to 
prevent the understanding being injured by them.) In des- 
potic countries, where the public passions are torpid, and where 
life and property are secured only by the extinction of the 
domestic affections, madness is a rare disease. Of the truth 
of this remark, I have been satisfied by Mr. Stewart, the 
pedestrian traveller, who spent some time in Turkey, also by 
Dr. Scott, who accompanied Lord M’Cartney in his embassy 
to China, and by Mr. Joseph Rexas, a native of Mexico, who 
passed nearly forty years of his life among the civilized but 
depressed natives of that country. Dr. Scott informed me 
that he heard of but a single instance of madness in China, 
and that was in a merchant who had suddenly lost £100,000 
sterling by an unsuccessful speculation in gold dust.(6)” With 
regard to Mexico and China, however, recent observations 
show that these remarks should be greatly qualified. 
§ 681. “Politico-mania,” as a specific defence, is unknown 
in the courts. No doubt persons unquestionably insane have 
(5) Rush ou the Mind, p. 66. 
671 § 682] 
MENTAL UNSOUNDNESS. 
[book i. 
been tried for political offences; and in some such cases the 
defence of insanity has been successfully interposed. But at 
no time has the defence been offered that the defendant, sane 
in all other respects, was insane on the subject of government, 
and therefore irresponsible for any attacks on government 
which he might institute. Logically and psychologically this 
defence is as good as that of any other “ monomania.” But 
practically the position is so absurd that no defence has here- 
tofore been bold enough to offer it. For no state could, with- 
out felo de se, recognize the irresponsibility of such a “ mania.” 
To» do so would be to give liberty to political fanaticism to 
execute without restraint any crimes by which its purposes 
could be subserved. 
II. Mental unsoundness as accompanied by prostration. 
(a1) Idiocy.(c) 
§ 682. Idiocy is that state in which the intellectual and 
moral faculties are almost null, the disease being in most in- 
stances congenital, and arising in all cases from want of de- 
velopment, not from perversion of the functions. And, in the 
great majority of reported cases, the development of the senses 
is almost equally defective.(d) The power of speech does no1 
exist, or exists only so far as to enable the patient to articulate 
a few unintelligible monosyllables. This incapacity depends 
sometimes on the imperfect conformation of the organs ol 
speaking, sometimes upon those of hearing, but more frequently 
(<0 Krafft-Ebing, in HoltzendorfFs Reclits-Lexicon, 1871—title, “ Wakn- 
sinn.” Krahmer, Handbucli der Gericbt. Med. Halle, C. A. Sckwetsclike, 
1851, §§ 110, 125. Siebold, Lebrbuch der Gericbt. Med., Berlin, 1847, § 200. 
See on tliis point tbe following works : The Principles of Medical Psycho- 
logy, being the outlines of a course of lectures by Baron von Feuchtersleben, 
M.D., Vienna, 1845; translated from the German by the late H. Evans Lloyd, 
Esq.; revised and edited by G. B. Babington, M.D., F.R.S., etc., London; 
printed for the Sydenham Society, 1847, p. 354. Morel, sur les Maladies 
Mentales, vol. i. p. 52, Paris, 1822. 
And see a very remarkable report by Samuel Kneeland, Jr., M.D., read 
before the Boston Soc. for Med. Improvement, Jan. 13, 1851 ; Am. Journ. of 
Med. Science, 1851; and a review of the same, Journal of Psychological 
Med., vol. iv. p. 366. 
(d) Esquirol, 466. 
672 BOOK I.] 
IDIOCY. 
[§ 683 
on a deficiency in or want of the powers of imitation, so that 
even when the hearing and speech are both entirely mature, 
the patient remains unable to do more than in the one case 
to show his knowledge of the existence of sound, and in 
the other to give utterance to noises not above, if equal to, 
those of the brute creation. Taste and smell are equally im- 
perfect. In many cases there is an inability to perceive odors, 
and in most nothing but the coarsest discrimination in the 
selection of articles of food. Wallowing in personal filth, 
devouring even excrement with apparent avidity, indisposition 
to eat at all unless food be placed directly before the eye, 
drinking urine with as little appearance of distaste as water, 
are incidents one or more of which are to be found in almost 
every case of idiocy. And the same low grade of sensibility 
and of flexibility is found in the purely physical system. The 
nerves are almost torpid. Limbs sometimes have been ampu- 
tated without apparent pain, and Esquirol even tells us of labor 
having been undergone without the patient being conscious of 
the fact or of its meaning. The arms are frequently of unequal 
length, and misshapen; and the limbs generally are crooked and 
feeble. A careless and broken gait distinguishes them in most 
cases. Even the eyes are defectively hung, and seem incapable 
of poising themselves at a right level. And in the lower class of 
cases there is sometimes so great a defectivenesss of vision as 
to prevent the patient from perceiving the most obvious ob- 
jects. And, even when the powers of vision and of motion 
exist, the intellectual powers are sometimes so attenuated as to 
make attempts to reach a desired point entirely abortive, 
though there be entire muscular power for such a purpose. 
§ 683. While, however, the reasoning powers are almost 
entirely defective, there is sometimes a preceptible, though 
unequal, development of the moral sentiments. Self-esteem, 
love of approbation, religious awe, sometimes assume a supre- 
macy over the system, which is the more marked because it is 
checked by no countervailing qualities. Dr. Lush tells us of 
an idiot who spent his life in little acts of benevolence to 
others, though, in the dispensation of them, as well as all 
other points in his life, he showed no reasoning powers what- 
ever. Religious veneration is sometimes developed to an 
vol. i.—43 
673 674 
MENTAL UNSOUNDNESS. 
[book i. 
exaggerated degree, and expended upon the most unnatural 
objects. Vanity — such as that which distinguishes some 
branches of the brute creation—finds in idiots a pregnant 
place. And Esquirol gives us numerous instances in which 
the talent for thieving, and that to a very remarkable extent, 
was found associated with entire vacuity of mind in all other 
relations. The same observation applies, though in a much 
less marked extent, to the sexual propensities. 
§ 684. “ Idiocy,” says Dr. Maudsley,(e) “ is indeed a manu- 
factured article; and, although we are not always able to tell 
how it is manufactured, still its important causes are known 
and are within control. Many cases are distinctly traceable to 
parental intemperance and excess. Out of 800 idiots in Mas- 
sachusetts, Dr. Ilowe found as many as 145 to be the offspring 
of intemperate parents; and there are numerous scattered ob- 
servations which prove that chronic alcoholism in the parent 
may directly occasion idiocy in the child. 1 think, too, there is 
no reasonable question of the ill effects of marriages of consan- 
guinity ; that their tendency is to produce degeneracy of the race, 
and idiocy is the extremest form of such degeneracy.” 
§ 685. The following classification is from Dr. Howe:— 
“ Idiots of the lowest class are mere organisms, masses of 
flesh and bone in human shape, in which the brain and nervous 
system have no command over the system of voluntary mus- 
cles ; and which, consequently, are without power of locomo- 
tion, without sjieech, without any manifestation of intellectual 
or affective faculties. 
“ Fools are a higher class of idiots, in whom the brain and 
nervous system are so far developed as to give partial command 
of the voluntary muscles ; who have, consequently, consider- 
able power of locomotion and animal action, partial develop- 
ment of the intellectual and affective faculties, but only the 
faintest glimmer of reason, and very imperfect speech. 
“ Simpletons are the highest class of idiots, in whom the 
harmony between the nervous and muscular systems is nearly 
perfect; who, consequently, have normal powers of locomotion 
and animal action, considerable activity of the perceptive and 
674 
(e) Body and Mind, London, 1870, p. 44. BOOK I.] 
IDIOCY. 
675 
affective faculties, and reason enough for their simple indivi- 
dual guidance, but not enough for their social relations.”(/) 
“ It does not take the case out of the definition of idiocy 
that some particular faculty has been saved from the gene- 
ral wreck. This is often the case, particularly with music. 
Thus there is at present in the Salpetri&re a girl idiotic to an 
extreme degree, who does not speak, and cannot even dress 
herself. However, her keeper has recently discovered in her a 
decided taste for music. She often can repeat faithfully a whole 
passage of music played or sung to her only once; even if the 
passage is left incomplete, in repeating it she will terminate it 
in the right key and tone. A first-rate performer on the piano 
was brought to play to her, and her transports amounted 
almost to frenzy. At certain passages of rapid transition from 
flats to sharps, she uttered cries of transport, and commenced 
biting her fingers to calm her emotions. She is an immense 
eater, and greedily snatches at fruit; but the moment she 
hears the instrument she stops until the music has ceased.” 
Hr. Howe mentions an idiot who had an astonishing power 
of reckoning. “ Tell him your age, and he will in a very short 
time give you the number of minutes.” 
§ 686. The following statement by Esquirol will throw much 
light on this phase of mental unsoundness: “With each case 
of idiocy which I have published in this chapter I have also 
given the admeasurements of the head taken during life. By 
bringing them together, we may compare the means with the 
results obtained by my young confreres; time will not permit 
me to do it. For those who are fond of this kind of investi- 
gation, I subjoin a table of the mean results of admeasure- 
ment of the head taken from a woman in the enjoyment of 
good health, and from plaster casts, taken after their death, 
in the case of thirty-six insane women, seventeen imbeciles, 
and seventeen idiots. In the case of three idiots, whose heads 
were very small, the admeasurements were taken from the 
crania. 
(/) Second Report of the Legislature of Massachusetts, by the Commis- 
sioners appointed to inquire into the condition of Idiots within the Conmon- 
wealth, by S. G. Howe, pp. 147. Boston, 1848. Senate Doc. 
675 § 687] 
MENTAL UNSOUNDNESS, 
[book I. 
TABLE OF CRANIAL ADMEASUREMENTS. 
Circum- 
ference. 
Antero- 
posterior 
curvature. 
Antero- 
posterior 
diameter. 
Trans- 
verse 
diameter. 
Totals. 
Women in a state of health 
21.87 in. 
13.80 in. 
6.98 in. 
5.29 in. 
47.44 in. 
Insane 
20.82 
11.50 
6.96 
5.67 
44.95 
Imbeciles . 
20.19 
11.49 
6.69 
5.63 
44. 
Idiots .... 
19.92 
11.26 
6.85 
5.39 
43.42 
Idiots—Microcephalous 
15.07 
7.51 
4.88 
4.17 
31.63 
“ From this table we learn : 1st. That the circumference of 
the head, according to admeasurements taken among women 
enjoying the use of their reason, from insane women, imbeciles, 
and idiots, diminishes in an almost equal proportion from the 
women in the enjoyment of usual health to the idiot, deprived 
even of instinct. 2d. That the fronto - occipital curvature 
diminishes in a remarkable degree from the women in sound 
mind to the insane female, whilst no variation is noticed in 
the insane person to the imbecile, and a difference of but six 
millimetres between the latter and idiocy. 3d. That the 
fronto-occipital diameter is the same in the case of the women 
enjoying the use of their reason and the insane women, and 
that there is a diminution of but six millimetres between the 
insane person and the idiot; while the difference is enormous 
on passing to the lowest degree of idiocy. 4th. That the bi- 
temporal diameter is more considerable in the case of the insane 
women, and even the imbecile and idiot, than in that of a 
woman possessing the ordinary degree of intelligence. 5tli. 
That, if we suppose that the sum of those four admeasurements 
express the volume of the brain, it follows, that, the volume of 
this organ diminishing in the same proportion with the intel- 
lectual capacity, that of the cranium would be the expression 
of this capacity. ”(y) 
§ 687. “In that remarkable obliteration of the mental 
faculties,” says Abercrombie, “ which we call idiocy, fatuity, 
or dementia, there is none of the distortion of insanity. It 
is a simple torpor of the faculties in the higher degrees, 
amounting to total insensibility to every impression; and some 
(g) Esquirol on Insanity. Lea & Blanchard, Philadelphia, 1845, p. 473. 
676 BOOK I.] 
IDIOCY. 
[§ 688 
remarkable facts are connected with the manner in which it 
arises without bodily disease. A man mentioned by Dr. Rush 
was so violently atfected by some losses in trade, that he was 
deprived almost instantly of all his mental faculties. He did 
not take notice of anything, not even expressing a desire for 
food, but merely taking it when it was put into his mouth. 
A servant dressed him in the morning, and conducted him to 
a seat in the parlor, where he remained the whole day, with 
his body bent forward and his eyes fixed on the floor. In this 
state he continued nearly five years, and then recovered com- 
pletely and rather suddenly. The account which he after- 
wards gave of his condition during that period was, that his 
mind was entirely lost, and that it was only about two months 
before his final recovery that he began to have sensations and 
thoughts of any kind. These at first served only to convey 
fears and apprehensions, especially in the night-time. Of per- 
fect idiocy produced in the same manner by a moral cause, 
an affecting example is given by Pinel. Two young men, 
brothers, were carried off by the conscription, and in the first 
action in which they were engaged one of them was shot dead 
by the side of the other. The survivor was instantly struck 
with perfect idiocy. He was taken home, where another 
brother was so affected by the sight of him, that he was seized 
in the same manner; and in this state of perfect idiocy they 
were both received into the BicStre. I have formerly referred 
to various examples of this condition supervening on bodily 
disease. In some of them the affection was permanent, in 
others it was entirely recovered from.”(A) 
§ 688. “ Of these half-witted persons,” remarks Dr. Mayo, 
“ the former indulges a love of grapes, the latter a love of 
bloodshed: the process of thought in each case is that of a 
deficient understanding, which could neither prevent the one 
from stealing grapes, nor the other from committing violence 
under the influence of opportunity, but rather forwarded the 
crime by suggesting excuses.” “An idiot,” says Dr. Hains- 
droff, “ in the Hospital of Salzburg, appearing to be singularly 
insusceptible of fear, an experiment of an appalling character, 
(h) Abercrombie on the Intellectual Powers, pp. 273, 274. § 689] 
MENTAL UNSOUNDNESS. 
[BOOK I. 
and of appalling consequences, was made upon him, as a means 
of putting his susceptibility to the test. It was proposed to 
make the impression upon him that he saw a dead man come to 
life. A person accordingly laid himself out as a corpse, envel- 
oped in a shroud; and the idiot was ordered to watch over the 
dead body. The idiot, perceiving some motion in the corpse, 
desired it to lie still; but, the pretended corpse raising itself 
in spite of this admonition, the idiot seized a hatchet, which 
unluckily was within his reach, and cut off first one of the 
feet of the unfortunate counterfeit, and then, unmoved by his 
cries, cut off his head. lie then calmly resumed his station 
by the real corpse; a strong illustration of the dangerous 
hypothesis of harmlessness, as connected with this state of 
mind.”(Y) 
§ 689. As the different races of men, says M. Renaudin, 
have a characteristic physiognomy, and as individuals reflect 
in their features the most salient points of their moral idio- 
syncrasy, so the idiot in this respect presents a peculiar stamp 
which the least discerning can recognize. It is a type which 
can be distinguished in all its varieties, even when the external 
conformation of the head does not differ much from the nor- 
mal proportions. But that which strikes us most in this class 
is the want of symmetry, not only in the encephalic organ, 
hut also in the other parts of the body; and if sometimes the 
physiognomy is deceitful in this respect, the other parts of the 
organism soon reveal to us the want of co-operation indis- 
pensable to the complete development of man. It is rather 
by an observation of the whole constitution than of its sepa- 
rate parts that the essential characters of this infirmity are 
to be detected. Idiots generally deceive in their age, which 
always offers at the different periods of their existence a ridi- 
culous admixture of decrepitude and puerility. The hyper- 
trophy of certain glands, the flaccidity of the tissues, malfor- 
mation of external essential organs, absence of all proportion 
in the length of their limbs, difficulty and uncertainty in their 
movements, which are almost convulsive, the retraction of 
certain tendons, an arrest of development in the figure and in 
(*) Mayo on Med. Test, in Lunacy, pp. 93, 94. 
678 BOOK I.] 
IDIOCY. 
[§ 689 
muscular contractility—sucli are the general appearances that 
characterize the idiot in his external conformation. Ilis mode 
of living is in keeping with this degradation of form, and fur- 
nishes us with the means of perceiving some of the relations 
existing between the physical and the moral. His language 
is scarcely rudimentary. He does not think, has nothing to 
say, and nothing in him calls for the vocal motion. When, 
however, this mutism is not idiopathic, he can be made to ar- 
ticulate certain words, and his movements can be placed under 
some moral control: but in undergoing this external influence 
he still rests faithful to that automatism which is his principal 
characteristic. It is always a material and instinctive im- 
pulse that controls. The idiot shows, in the satisfying of his 
wants, a brutality in close connection with the irregularity of 
all his actions, and the want of balance of his functions, which 
all coincide with personal instinct. He yields himself to onan- 
ism with a revolting cynicism; he eats with a voracity that 
defies everything, and which proves how obtuse his sensibility 
is, although he in fact suffers more than any other the unhappy 
effects of climacteric changes. Finally, in spite of the violence 
of certain appetites, the functions are so incompletely per- 
formed, that we must not be surprised to see these unfortunates 
very short-lived. If, on the one hand, nothing has wasted 
life, nothing, on the other hand, has vivified it, and one can 
easily conceive that it is extinguished, since it is without es- 
sential nourishment and without object. 
The psychical element plays no part in such an organization. 
External influence is unable to develop it, since the somatic 
element is not in a condition to receive it; and as to spontane- 
ousness, one can with but difficulty perceive the germ. So, 
when these degraded beings, impelled by a brutal instinct, or 
obeying another’s will whose instrument they are, commit a 
curable act, all the world agree in not imputing to them any 
moral responsibility.(_/) 
Idiocy, says M. Falret, cannot, strictly speaking, figure 
amongst the forms of insanity. In this degraded state man 
(j) See Etudes Psychologiques sur 1’Alienation Mentale, par L. F. E. Re- 
naudin, p. 170, Paris, 1854. 
679 § 690] 
MENTAL UNSOUNDNESS, 
[book i. 
is fallen below the brute; he does not even possess the instinct 
of self-preservation. It is necessary for charity not only to 
bring him the food required for his nourishment, but to place 
it in his mouth, and to protect him against the mischievous 
influences which surround him, and against all destructive 
causes. Instead of language, the exclusive appendage of man, 
since it is the expression of thought in all its development, 
the complete idiot only utters certain harsh, savage inarticulate 
sounds. Instead of that firm, assured step which executes the 
exact command of the will, the rough, disorderly movements 
of idiots seem only phenomena of irritability. Besides, they 
are often immovable, bent down towards the ground, and 
only execute a kind of rocking movement, balancing forward 
and backward, to the right and to the left. Without doubt 
this is the extreme degree of idiocy, for there are idiots less 
degraded in their organization, and consequently in their 
manifestations; but, unfortunately, to this feeble development 
of the intelligence is too often joined either an absolute want 
of character, or low tastes, incitations to a brutal lasciviousness, 
to robbery, pyromania, and ferocity, which they turn against 
themselves and against inanimate objects.(&) 
§ 690. Cretinism finds no place in the United States, and 
cannot, therefore, claim here extended consideration.(^) 
(Jc) See Leqons Cliniques, de M. Falret, p. 243, Paris, 1854. 
(Z) The student, however, who seeks for particular information as to its 
character, is referred to the following treatises : Etudes des Maladies Mentales, 
de M. Morel, tome i. p. 64, Paris, 1854. Gedanken uber Kropf und Cretinis- 
mus als Beitrag zur Homatologie und Homonymie. Yon Job. Mich. Huber, 
Gerichtswundarzt zu Ried in Tyrol. Mit einer Abbildung. (Medecin. Jahr. 
des k. k. osterr. Staats, Mai.) Ueber den Cretinismus in Canton Waadt. in 
der Schweiz, von Dr. H. Lebert, prakt. Arzt zu Paris. (Archiv fur physio- 
logische Heilkunde VII. B. 6 Heft.) Notice of a very remarkable disease 
analogous to Cretinism. By Hugh Norris ; Med. Times, Jan. 1848. Les 
goiteux et les cretins de la Savoie ; Annales de Therapeutique, 1848. Mais, 
Ueber den Cretinismus in grossen Stadten und dessen Aenlichkeit mit demin 
den Alpen. Yon Dr. Behrend. (Gaz. des Hopitaux, 1848. Nos. 6 and 7.) 
Cretinismus als genetiscli—contagiose Endemie in Neudenau, etc. Bad. An- 
nalen d. Staats-Arzneikunde, 1846. Esquirol, Mental Maladies, etc., 481-2. 
Sonsburg, uber den Cretinismus. Wurzb., 1825. Hauflser, uber die Be- 
ziehung des Sexualsystems zur Psyche ueberhaupt und zum Cretinismus ins 
besondere. Wurzb., 1826. See also a very valuable report on this point, by 
680 BOOK I.] 
IMBECILITY. 
[§ 692 
(bl) Imbecility. 
§ 691. Imbecility having almost as many degrees as it has 
victims, it becomes the task of psycho-forensic medicine to 
assign a line of demarcation within which the judge is to de- 
clare the responsibility of the agent to cease to exist. But 
this problem is only so far capable of solution as we are 
enabled to detect and recognize the existence of imbecility in 
general, and to estimate its relation to a given action; the per- 
sonal discretion of the tribunal must always have considerable 
scope in all cases near the boundary line. In order to obtain 
as firm a common ground as possible, it becomes advisable to 
subdivide and classify imbecility, particularly where it de- 
pends upon particular diseased conditions capable of ascertain- 
ment and distinction. In this respect we distinguish, in the first 
place, imbecility with and imbecility without concomitant insanity. 
The subject of aphasia has been already distinctively dis- 
cussed, (m) 
§ 692. Imbecility with concomitant insanity presents the follow- 
ing subdivisions:— 
1. The original imbecility which has lapsed into unsound- 
ness of mind. The nature of the latter will determine in the 
first instance, in how far the patient is amenable to the penal 
laws in a given case; but the fact of imbecility will always 
favor the psychological arguments in favor of irresponsibility. 
2. Imbecility supervenes upon the course of a mental dis- 
order, and manifests itself particularly in the form of a failure 
of memory. The question of responsibility will depend, in 
this case, upon the same principles as stated in the last pre- 
ceding head. 
3. Specious imbecility, as in the case of melancholia attonita, 
and as such, will receive but little attention at the hands of 
the forensic physician. 
Samuel Kneeland, Jun., M.D.,read before the Boston Soc. for Med. Improve- 
ment, Jan. 13, 1851. Am. Journ. of Science, 1851; and a review of the 
same in Journal of Psychological Med., vol. iv. p. 366. See also “A Physi- 
cian’s Holiday, or a Month in Switzerland in the Summer of 1848, by John 
Forbes, M.D., F.R.S,” London, 1848, in which the management of the 
Cretins is fully described. 
(m) Supra, §§ 324-327. 
681 § 694] 
MENTAL UNSOUNDNESS. 
[BOOK I. 
4. Imbecility with confusion of mind. This is found side by 
side with a failure of memory, and a more or less conspicuous 
incoherence and inconsistency of the perceptions, and a certain 
agility and activity of the super-physical life. It is either a 
primary or secondary form, and in the former case it may be 
consequent upon severe diseases of the brain, epilepsy, intem- 
perance, sexual excesses, and senility \{ri) in the latter case it 
may arise from the various forms of mental unsoundness, and 
may be considered as always excluding the idea of moral 
responsibility. 
§ 693. 5. Imbecility remaining after the patient has re- 
covered from an attack of insanity. This, when sanity is 
restored, is not a sufficient reason for suspending the respon- 
sibility of the agent, but may often deserve the attentive con- 
sideration of the judge in the moulding of the sentence. It 
should be remembered, however, that insanity, once proved, 
is presumed to continue, so far as concerns responsibility, 
until restoration to reason is positively shown. 
§ 694. Imbecility without insanity has several gradations, all 
being separate denominations; the highest degree is called 
idiocy. Next to this is imbecility proper; dulness, feebleness, 
stupidity, are inferior grades of a stunted growth of mind. The 
causes which, in the higher stages, exclude understanding 
and self-control are the more potent, as no education has been 
imparted here, or, if imparted, lias produced no effect. The 
lower stages do not justify the physician in casting a doubt 
upon the existence of legal responsibility. They are for the 
(?i) In senility its effects are touchingly illustrated in the follow ing pas- 
sage, from the life of the late Wm. Jay:— 
At length, however, this prop fails him. After thirty years of uninter- 
rupted domestic happiness, this excellent and amiable woman wras stricken 
with an extraordinary malady, resulting in such a prostration of mental and 
physical powers, as rendered her, from that time forward, no longer the sup- 
port of her husband in his trials, hut the object of his deep solicitude and 
tender care. It had become her almost invariable habit to call things by 
names the reverse of what wTas right, and of wThat she herself intended :— 
“She spoke of a drop of bread, and a thin bit of water ; she called the 
black wThite, and the white black ; the cold heat, and the heat cold ; preach- 
ing wras hearing, and hearing was preaching ; in the morning she wished you 
good evening, and in the evening good morning.” See supra, § 324. 
682 BOOK I.] 
IMBECILITY. 
[§ 695 
consideration of the judge alone, and are interesting in this 
point of view, because simpletons and fools often have a touch 
of malice, brutality, ill-will, and mischief in their dispositions, 
and may be led, by teasing and ill-treatment, to vindictive 
hatred, revenge, and violent outbursts of anger. 
§ 695. “In some circumstances,” says M. Renaudin, “the 
idiotic germ is less prominent, nothing tends to reveal it in 
infancy, and the early years lead us to expect a normal ulterior 
development. But it may happen that a severe disease, deeply 
affecting the organism, supervenes, or the subject may have 
been submitted to an intellectual labor above his powers, and 
at a given moment an arrest of development, as much in the 
physical as in the moral system, shows itself. This condition 
sometimes supervenes even without the action of any apparent 
cause, and then we can only attribute it to the influence of this 
idiotic principle. Instead of pursuing the course marked out 
by the laws of nature, it is arrested at a point of development, 
rarely transitory but most generally permanent, which is known 
everywhere under the name of imbecility. The physical organ- 
ization in imbeciles offers less abnormities than that of idiots; 
the body is straighter, and, if the physiognomy is less repulsive 
and shows a little more regularity in its features, it exhibits 
but little animation. The feelings are seen in their rudiment- 
ary state in this class of beings; they are susceptible of a more 
advanced education, and, when they belong to a family of easy 
circumstances, they can be made to submit themselves to the 
habits of a regular life. The impressions they receive are suf- 
ficiently durable, providing they do not overstep a sufficiently 
restricted limit. They are susceptible of a certain amount of 
memory, which in some cases reaches a very remarkable height. 
Sometimes the ideas they acquire are very limited, and their 
intellectual spontaneousness is on a footing with the small 
development of their physical spontaneousness. Although 
less stupid than the idiot, automatism is the characteristic trait 
of the imbecile. He never gives the impulse, he receives it; 
and it is amongst the imbeciles that an asylum especially finds 
valuable aids in its internal service. If the effective senti- 
ments are but feeble, the instinct of the feeling of personality 
shows itself perhaps in an absurd vanity, or in a savage egot- 
683 § 697] 
MENTAL UNSOUNDNESS. 
[book i. 
ism in the satisfaction of wants whose stimulus is ordinarily 
very energetic. Hence an excessive irritability that readily 
degenerates into mania, or a malicious cunning, in order to 
obtain the thing coveted. The imbecile has but few ideas; 
and as he knows but little abandons himself to his impulses 
when fear does not control him. But little capable of distin- 
guishing between good and evil, he may be a dangerous instru- 
ment in criminal hands. The imbecile commits a murder with 
coolness, shows often a great depravity of tastes, and it is only 
an exception if you can perceive in him any rudimentary 
traces of the moral sense. It is at this point that his intel- 
lectual aptitude ceases, and we can easily understand how a 
like condition necessarily excludes all responsibility.”^) 
§ 696. The Emperor Napoleon hits upon a very happy illus- 
tration of the distinction between two of the above-mentioned 
phases. In one of his conversations with Las Casas, he said 
that there was such a thing as “folie innocente” and “folie ter- 
rible”—a fatuous state which is safe, and one which is danger- 
ous. A fatuous person, Uun fou” of the first kind, the Em- 
peror describes as reasoning, with the proprietor of a vineyard 
in which he was trespassing, thus: “Why, here are we two: 
the sun sees us both; therefore, I have a right to eat grapes.” 
The 11 fou terrible,” he proceeds, “ is he who cuts off the head of 
a man whom he found sleeping under a hedge; then hides him- 
self behind it, in order to witness the surprise—embarras—of 
the body when waking.” 
§ 697. “ Hr. Rush says,” we quote from Hr. Ray, “ that in 
the course of his life he has been consulted in three cases of 
moral imbecility; and nothing can better express the true 
character of their physiology, than his remark respecting 
them. ‘ In all these cases,’ he observes, ‘ there is probably an 
original defective organization in those parts of the body which 
are occupied by the moral faculties of the mind’—an explana- 
tion which will receive but little countenance in any age that 
derives its ideas of the mental phenomena from the exclusive 
observation of mind in a state of acknowledged health and 
vigor. To understand these cases properly, requires a knowl- 
(0) Renaudin sur 1’Alienation Mentale, p. 173. Paris, 1854. 
684 BOOK I.] 
DEMENTIA. 
685 
edge of our moral and intellectual constitution, to be obtained 
only by a practical acquaintance with the innumerable phases 
of the mind, as presented in its various degrees of strength 
and weakness, of health and disease, amid all its transitions 
from brutish idiocy to the most commanding intellect.’ ”(p) 
§ 698. Dementia is to be distinguished from general mania 
in the fact that the former originates from depression, the other 
from exaltation of the natural powers. 
§ 699. In the course of clinical lessons delivered at Bicetre, 
M. Ferrus gives an account of the different intellectual debili- 
ties in a way that throws a strong light upon these difficult 
questions. 
Between idiocy and dementia, he says, there is a most strik- 
ing analogy. In both cases, human intelligence is abolished; 
it no longer possesses the means of perfectibility. But the 
analogy ceases in examining the producing causes. With the 
idiot, deprivation of reason is congenital; the demented, on 
the contrary, arrives progressively at the total loss of his facul- 
ties. Dementia is the abolition of the intellectual faculties, 
both moral and instinctive, supervening after the period of 
puberty: it is a kind of debility which appears either in an 
insensible manner or with the rapidity of lightning—breaking, 
more or less, all the connections which unite the man with the 
rest of the world. 
The characters of dementia are sufficiently decided, so as 
not to be confounded with those of other mental affections. 
In idiocy, the faculties of the mind have never existed, or have 
been destroyed before their complete development. In demen- 
tia, you may still possibly see some traces of an intelligent 
past; but it betrays in vain its past perfection: it is stamped 
forever with the seal of feebleness and nullity, and destined to 
be extinguished by a kind of exhaustion of nervous influence. 
Stupidity consists in an accidental, sudden, complete aboli- 
tion of the intellectual, moral, and instinctive faculties, as 
well as of the movements. It has for its cause a sudden and 
(c1) Dementia. 
(p) Ray on Insanity, p. 90. 
685 686 
MENTAL UNSOUNDNESS. 
[book I. 
violent physical or moral shock: it is distinguished from de- 
mentia by the rapidity of its appearance, the intensity of its 
symptoms, their frequent remission and exacerbation, and 
especially by the possibility of a complete cure.^) 
Dementia, says Esquirol, is characterized by the enfeeblement 
of the sensibility, intelligence, and will. Incoherence of ideas, 
want of intellectual and moral spontaneousness, are the signs 
of this affection. The man suffering from dementia has not 
the faculty of properly receiving objects, of noticing their 
relations and comparing them, of preserving a complete re- 
membrance of them; whence results an impossibility of reason- 
ing correctly. In dementia, he adds, the impressions are too 
feeble; it may be because the sensibility of the organs, or of 
the sensations, is weakened; or it may be because the brain 
itself has not sufficient power to perceive and retain the im- 
pression that is transmitted to it. From this it necessarily 
results that the sensations are languid, obscure, and incomplete. 
Individuals in dementia are not susceptible of a sufficiently 
strong attention—objects only strike them in an obscure and 
false manner: they can neither compare nor associate ideas, 
nor abstract them; the organ of thought has not sufficient 
energy—it is deprived of the tonic force necessary to the in- 
tegrity of its functions. Then the most incongruous ideas 
succeed each other, following each other without connection 
and without motive: the matter is incoherent: the patient re- 
peats -words and entire phrases without attaching to them 
distinct sense; he speak, as he reasons, without any conscious- 
ness of what he is saying.^1) The demented, in spite of the 
general decrepitude of his organic functions, is not freed from 
the laws of action and reaction. There are periods in his 
existence when the old phenomena of possession appear to be 
renewed. When he is agitated, he cries and tears his clothes, 
and may, perhaps, perform some dangerous actions. The hal- 
lucinations are often sufficiently intense to provoke veritable 
attacks of fury; but this rage lasts but a little while; it is ap- 
peased like the anger of a child. 
(g) Ferrus, lemons cliniques faites a Bicetre. 
(gl) Esquirol de la demence, p. 221. 
686 BOOK I.] 
DEMENTIA. 
687 
The demented from this excited state falls back into his 
ordinary automatonism. He has no more any wishes, hate, or 
tenderness; he holds the objects formerly so dear to him in 
the greatest indifference; he sees his relations and friends 
without pleasure, and leaves them without regret. He is not 
disquieted by any privations imposed on him; and pleasures 
obtained for him gratify him but little. What goes on around 
him does not affect him. The events of life are as nothing to 
him, since he is unable to attach any remembrance, any hope 
to them: indifferent to everything, nothing gratifies him. He 
laughs and plays whilst other men are afflicted, and weeps when 
all the world is satisfied. If his position discontents him, he 
does nothing to change it. His determinations are vague and 
uncertain: he is a perfect automaton, that has not sufficient 
energy to be ungovernable: his isolation is the more necessary, 
as he yields himself to acts which are the result of the aboli- 
tion of conscience, and as he becomes but too often the sport 
and the victim of those who wish to take advantage of his 
conditioner) 
§ 700. Dementia, according to Falret, is a period, and not a 
true form of mental unsoundness. Amongst the demented, 
who are only the chronic insane arrived at an advanced stage 
of the disease, there are some who are almost like maniacs, and 
some who remain motionless, like hypomaniacs. There are 
others in whom are seen some predominant ideas—resembling, 
in this respect, monomaniacs ; but it is difficult to classify them. 
If they speak, their unconnected words have no relation, and con- 
vey no sense; often even this is not due to incoherence alone, but 
to the absence of ideas: it is a flow of words without thoughts. 
If they remain quiet and silent, their countenances express 
neither concentration nor passion, but dulness and stupidity: 
they seem, at least in extreme cases, to be ciphers both in un- 
derstanding and character. The observer, in fact, sees in them 
only ruins: he sees before him all the moral and intellectual 
elements in an almost complete state of isolation from one 
another. This separation is a kind of dissolution which be- 
trays the radical blow that has been inflicted upon the psychi- 
(r) See Morel sur les Maladies Mentale, tome i. p. 402. Paris, 1852. 
687 § 701] 
[book 1. 
MENTAL UNSOUNDNESS. 
cal forces, and destroys all hope of ever seeing these elements 
united and co-ordinate. If sometimes a gleam of intelligence 
sparkles in this chaos, and in the midst of these ruins—far 
from consoling, it adds to the gloom, so manifest is it that the 
patient himself is neither its author not its witness. Every- 
thing, in fact, in dementia, betrays an inability to form ideas, 
to experience sentiments, to possess a will. It is the tomb of 
reason, with the exception of some flashes that mark it, and 
which are, as it were, the reflections of the ancient brilliancy 
of the mind.(5) 
§ 701. “Dementia,” says Dr. Ray, “is distinguished from 
general mania, the only other affection with which it is liable 
to be confounded, by characters that cannot mislead the least 
practised observer. The latter arises from an exaltation of 
vital power, from a morbid excess of activity, by which the 
cerebral functions are not only changed from their healthy 
condition, but are performed with unusual force and rapidity. 
The maniac is irrational from an inability to discern the ordi- 
nary characters and relations of things, amid the mass of ideas 
that crowd upon his mind in mingled confusion; while in de- 
mentia the reasoning faculty is impaired by a loss of its ordi- 
nary strength, whereby it not only mistakes the nature of 
things, but is unable, from want of power, to rise to the con- 
templation of general truths. The reasoning of the maniac 
does not so much fail in the force and logic of its arguments, 
as in the incorrectness of its assumptions; but in dementia the 
attempt to reason is prevented by the paucity of ideas, and 
that feebleness of the perceptive powers, in consequence of 
which they do not faithfully represent the impressions received 
from without. 
“ In mania, when the memory fails, it is because new ideas 
have crowded into the mind, and are mingled up and con- 
founded with the past; in dementia the same effect is pro- 
duced by an obliteration of past impressions as soon as they 
are made, from a want of sufficient power to retain them. In 
the former the mental operations are characterized by hurry 
(s) See Etudes cliniques sur 1’Alienation Mentale, par M. Falret, p. 541 
Paris, 1854. 
688 BOOK I.] 
GENERAL DELIRIUM. 
689 
and confusion; in the latter by extreme slowness and frequent 
apparent suspension of the thinking process. In the former, the 
habits and affections undergo a great change, becoming strange 
and inconsistent from the beginning, and the persons and 
things that once pleased and interested, viewed with indiffer- 
ence or aversion. In the latter, the moral habits and natural 
feelings, so far as they are manifested at all, lose none of their 
ordinary character. The temper may be more irritable, but 
the moral disposition evinces none of that perversity which 
characterizes mania. 
“ In dementia, the mind is susceptible of only feeble and 
transitory impressions, and manifests little reflection even upon 
these. They come and go without leaving any trace of their 
presence behind them. The intention is incapable of more 
than a momentary effort, one idea succeeding another with but 
little connection or coherence.”^) 
I. Mental unsoundness accompanied by delirium. 
(a1) General delirium. 
§ 702. What distinguishes delirium from the delusions of 
the senses, is that in the latter the sensational faculties are 
really acted upon, subjectively, though in an eccentric manner, 
while in t,he former the interior reproductive activity of the 
brain predominates in the generation of phantoms.(w) Con- 
sciousness is disturbed at the same time, and there is incoherent 
speaking and action, as if it were a waking dream. External 
objects are perceived indistinctly, or not at all, and on the 
whole there is the less delirium, the more activity there is in 
the peripheric nerves, for which reason hydrocephalic children 
generally relapse into delirium when they cease vomiting. 
The external senses may, however, be at the same time open 
to perceptions, and may convey them; but the patient is so 
controlled by his internal dreams as to act as if they did not 
exist. Hence there is, accordingly, a predominance of dreams, 
which deprives the individual of the possibility of the power of 
maintaining a corresponding relation with the external world. 
(0 Ray on Insanity, pp. 292, 293. 
(•u) Hay gen, vol. ii. p. 707; Scliurmayer, etc., § 555. 
vol. i.—44 
689 690 
MENTAL UNSOUNDNESS. 
[book i. 
Delirium may, therefore, be defined as a state of dreams brought 
on, not by sleep, but by disease. Like a dream, a delirium 
may become active, the beginning of which is the speaking 
delirium. Where a crime or misdemeanor proceeds from a 
delirium, there is no freedom of agency, i. e. the action is to 
be regarded as the product of insanity. 
§ 703. The most remarkable phenomenon of mental un- 
soundness (we translate from Morel) is unquestionably delirium, 
whether it shows itself in words or deeds. Delirium, con- 
sidered as an essential symptom of insanity, should possess a 
type of continuity, should connect itself with lesions of a 
special nature, and should present altogether the elements of 
a certain systemization of the frenzied conceptions. This 
systemization alone gives to the delirium which produced it 
a particular stamp. It shows what has been called the fix- 
ing of ideas, and that logic peculiar to the insane, that leads 
them to the justification of the falsest conceptions, and the 
most deplorable acts. If it were otherwise, who could have 
flattered himself that he had escaped insanity ; for wTe have all 
suffered in a more or less degree the phenomena of delirium. 
We are delirious during fever, under the influence of spirituous 
liquors, as also of some narcotics. Febrile delirium is a generic 
term comprising the universality of abnormal phenomena that 
can in a more or less permanent manner, in a given disease, 
hinder the association of our ideas, or that directs the associa- 
tion in the way of producing illusions and hallucinations of 
all kinds. 
The word insanity is likewise a generic expression for 
pointing out the universality of the abnormal phenomena 
which, under the united influence of physical and psychical 
causes, can, in a more or less permanent manner, pervert our 
manner of feeling and seeing, or, in other words, bewilder our 
understanding. 
In this point of view, febrile delirium and the delirium of 
madness are the same, inasmuch as deliriums are identical; 
but it is excessively important not to confound the symptoms 
with the diseases that produced them. 
An individual suflering from an acute disease approaches 
the period of convalescence. At the approach of night, or 
690 BOOK I.] 
GENERAL DELIRIUM. 
691 
whenever he shuts his eyes, fantastical apparitions besiege him. 
He himself recognizes that these painful impressions are the 
results of his fever ; or, if he does not recognize it at the first 
glance, he receives the explanations of those surrounding him. 
He raves before sleeping, and it is not strange if he still raves 
under the influence of the depression as well as of exaltations 
of the organs of the senses. Upon awaking, he makes known 
to his relations and friends the fatiguing sensations that his 
dreams have produced, and seems to search with eagerness for 
explanations to reassure him. As he returns to consciousness, 
the motives of his judgment become more certain, the tumult 
of his bewildered senses is appeased, the nights are quieter, 
and, when convalescence follows an ascending course, there 
only remains a vague and confused remembrance of the stormy 
scene through which he has passed. 
Things, unfortunately, do not pass so when the delirium has 
a tendency to the permanent or chronic form; and it is this 
wdiich makes the essential difference between properly called 
febrile delirium and maniacal delirium. There may be a 
period when these two deliriums possess the same external 
characteristics on account of the similitude of the perverted 
sensorial phenomena; but, when the phenomenon of delirium 
is produced by a maniacal state, it is then a situation which 
often passes unnoticed in the beginning, but which, as a 
diagnostic element, it is of the highest importance to describe. 
This situation, so painful for the friends, first betrays itself 
in a perversion of the feelings, and in a complete change in 
the character and habits of the patient. He becomes impatient 
and fretful; speaks passionately, and in an unaccustomed tone. 
He often loses the feeling of modesty, whatever may be his 
age or education. His friends and relations attribute these 
distressing phenomena to the effect of the primitive disease 
which shows itself with all the characteristics of an ordinary 
febrile delirium. Hut soon another more trying pheno- 
menon shows itself, and often without enlightening them. 
The care bestowed upon the sick person, the marks of the 
liveliest affection which are shown to him, are repulsed, some- 
times with irony and disdain, and sometimes with passion and 
fury. In ordinary diseases the sick person attaches himself 
691 692 
MENTAL UNSOUNDNESS. 
[book i. 
with happiness to everything that tends to recall him to ex- 
istence. He hears with emotion of the different stages of his 
disease, and of the delirium which was its consequence; he 
speaks often of its causes, deplores its effects, and makes in- 
numerable excuses for any malignant or obscene words which 
may have escaped him during the delirium. The patient, on 
the contrary, in whom the insanity is confirmed, will not admit 
that he was delirious. He sustains the errors of his imagina- 
tion, and takes them for realities. The hallucinations and 
delusions of all sorts which he has felt, and which still beset 
him, fortify him in his madness. Still more, in this he sys- 
tematizes his delirium,* and whatever intellectual energy is 
left is employed by him in establishing, upon the basis of a 
desperate logic, motives for the new existence which he is just 
commencing. Several authors, basing themselves on the fact 
that the delirium of insanity is often found unaccompanied 
by fever (delirium sine febre), have thought that the train of 
psychological phenomena that accompanies the delirium of 
acute diseases is sufficient to mark out the difference between 
these primitive conditions. This appreciation, though very 
true on one side, may nevertheless lead us into error. We 
willingly admit that the delirium of acute diseases is accom- 
panied with redness of the cheeks and turgidity of the face. 
The expression is troubled, and there are marked changes in 
the circulation. The eyes are brilliant, respiration often pain- 
ful, and the excretions involuntary; the language takes an 
unaccustomed accentuation. The sick person expresses him- 
self sometimes with vivacity, sometimes with great slowness; 
his sentences and his words are badly articulated; he speaks 
sometimes to himself, and at other times deep drawn sighs are 
the only manifestations of his soul. But these phenomena are 
also to be met with in the delirium of insanity, and especially 
in the first stages of this disease.(V) 
Privation of stimulants, says Morel, and the employment 
of opiates, generally suffice to restore reason to those persons 
who are generally not considered as insane unless afflicted with 
(») See Etudes Cliniques des Maladies Mentales, etc. M. Morel, tome i. p. 
124. Paris, 1852. 
692 BOOK I.] 
GENERAL DELIRIUM. 
[§ 704 
a special affection known by the name of dipsomania; even 
when the fatal consequences resulting from the abuse of spirits 
impress upon the delirium, which is its consequence, a form of 
continuity which has by some authors been pointed out under 
the name of drunken madness. Errors made in this respect 
may be productive of grave consequences for those who are the 
victims of them. The following is an example:— 
In the month of May, 1850, there was brought to the asy- 
lum of Moreville a sick person, whom a physician’s certificate 
represented as a dangerous madman. We observed at first in 
him a very great disorder of ideas, and a peculiar difficulty of 
expressing himself. The face was pale, and the lips agitated 
with convulsive movements, and there was a general trembling 
of the limbs. The employment of opiates and a bath soon 
removed these appearances, and the next day we had a man in 
the perfect possession of his faculties before us. The error in 
this case had arisen from the fact, that the physician’s certifi- 
cate had been given without a proper examination of all the 
causes necessary to a correct judgment. If he had, indeed, 
gone back to the appreciation of the causes, he would have 
found out that very grave dissensions existed between two 
brothers, of whom one was this supposed madman, who, en- 
dowed with a violent but feeble character, after having yielded 
in the strife of discussion, ordinarily sought to console himself 
in alcoholic libations. It was after having swallowed a too 
abundant ration that a family quarrel brought its contingent 
of trouble to the natural excitement that controlled him, and 
resulted in delirium tremens, which, if it had been better ap- 
preciated in its origin and effects, would not have brought 
this person to an insane asylum, and compromised in a certain 
degree his social position.(w) 
§ 704. Puerperal mania deserves a distinct notice, not merely 
from its distinctive physical origin, but from its distinctive 
features, which sometimes are erotic ravings, sometimes even 
homicidal violence.^1) A “ homicidal propensity,” as we are 
told by Dr. Taylor, “ towards their offspring, sometimes mani- 
(w) Morel, sur les Maladies Mentales, tome i. p. 146. Paris, 1852. 
(id1) See supra, § 155. 
693 § 704] 
MENTAL UNSOUNDNESS. 
[book i. 
fests itself in women soon after parturition. It seldom appears 
before the third day, often not for a fortnight, and in some 
instances not until several weeks after delivery. The most 
frequent period is at or about the commencement of lactation, 
and between that and the cessation of the lochia.” According 
to Esquirol, it is generally attended by a suppression of the 
lochia and milk. The symptoms do not differ from those of 
mania generally, but it may assume any of the other forms of 
insanity; and in one-half the cases it may be traced to heredi- 
tary tendency. According to Dr. Burroughs, there is delirium, 
with a childish disposition for harmless mischief. The woman 
is gay and joyous, laughing, singing, loquacious, inclined to 
talk obscenely, and careless of everything around. She ima- 
gines that her food is poisoned. She may conceal the suspicion, 
and merely avoid taking what is offered to her. She can re- 
cognize persons and things, and can, though perhaps will not, 
answer direct questions. Occasionally there is great depression 
of spirits, with melancholy. These facts are of some import- 
ance in cases of alleged child-murder. This state may last a 
few hours, or for some days or weeks, and we are told by 
Dr. Hartshorne, the accomplished American editor, sometimes 
for months and years; but it generally goes off within a few 
months, if not earlier. “ The murder of the child is generally 
either the result of a sudden fit of delirium, or of an uncon- 
trollable impulse, with a full knowledge of the wickedness 
and illegality of the act—so that the legal test of responsi- 
bility from a knowledge of right and wrong cannot be applied 
to such cases. Mothers have been known, before the perpe- 
tration of the murder, to request their attendants to remove 
the child. Such cases are commonly distinguished from de- 
liberate infanticide by there being no attempt at conceal- 
ment, nor any denial of the crime on detection. Several 
trials involving a question of puerperal mania have been 
decided generally in favor of the plea within the last few 
years. Dr. Ash well has remarked, that undue lactation may 
give rise to an attack of mania, under which the murder of the 
offspring may also be Females in the preg- 
694 
(*) Diseases of Women, 732. BOOK I.] 
GENERAL DELIRIUM. 
[§ 705 
nant state have been known to perpetrate the crime apparently 
from some sudden perversion of their moral feelings. I am not 
aware that a plea of exculpation on the ground of insanity has 
been admitted in this country under these circumstances. ”(y) 
§ 705. “The fundamental affection in the maniacal states,” 
writes Gfriesinger, “ consists chiefly in a derangement of the 
motory side of the soul-life, the effort, and of such a nature, 
that the latter having become free, unrestrained, and consider- 
ably increased, the individual consequently feels impelled to 
give some outward manifestation of his powers. 
“ From this tendency to an exaggerated psychical movement 
from within outwards, from this augmented energy and more 
extended rauge of the efforts, from this extravagance of the 
will, which constitute the centre-point of maniacal derange- 
ment, spring, as from a common source, those two forms which 
in their nature and mode of manifestation are sometimes so 
essentially distinct. On the one hand, this necessity for the 
manifestation of the increased mental activity may manifest 
itself directly, being propagated by a continuous impulse to 
the organs of motion, and there exploding, as it were; whence 
there ensues a state of great physical restlessness, the patient 
keeping his muscles in constant play (speech, gestures, move- 
ments of the body generally), and perpetually speaking, shout- 
ing, weeping, dancing, leaping, storming, etc.; and thus is 
constituted the form generally called mania. 
“ Or, on the other hand, the direct result of this more free 
development of volition may be the development of inordinate 
vanity, increased self-sensation, and consequently a constant 
over-estimation of self; and, as attempts at explanations of 
this disposition, delirious conceptions arise, which now become 
dominant over the mind, and take the increased activity of 
the will into their service. 
“ The patient has now no longer to do with mere general 
(y) See case Ann. d’Hyg., 1831, i. 374. For an able analysis of the pre- 
sent state of our knowledge on the subject of puerperal insanity, by Dr. Reid, 
see Journ. Psychol. Med., 1834, pp. 128, 284. Taylor’s Med. Jurisprudence, 
pp. 594, 595. See as to the legal responsibility in such cases, supra, §§ 146 
-162. See slso Dr. Storer’s excellent treatise on Insanity in Women, 
Boston, 1871. 
695 § 706] 
MENTAL UNSOUNDNESS. 
[book i. 
manifestation of energy; but this excitation of the motory 
side of the soul-life is transformed into extravagant volition in 
the form of particular delirious conceptions, for the most part 
with much greater outward calm. As soon as such a condi- 
tion, accompanied by delirious conceptions arising from inor- 
dinate self-conceit, has in any degree become fixed, there is 
founded a state of mental derangement infinitely more 
serious than that of simple mania. In short, while in the 
latter form the patient is freed from his exaggerated impulses 
by their outward manifestation, and again, as we shall soon 
show, in the pure form of mania, the whole disease is confined 
to a relatively external sphere of the mental life without pro- 
foundly involving the individuality, it is the essential charac- 
teristic of this second form of mania, which we designate 
monomania, that delirious conceptions, false ideas, which arise 
from over-estimation of self, and therefore relate only to the 
special self of the patient, appear, which immediately involve 
the ego itself, and, therefore, the innermost part of the indi- 
viduality becomes alienated and falsified. ”(a) 
(b1) Partial delirium. 
(a2) Mania or amentia occulta. 
§ 706. This leads to the discussion of the so-called amentia 
occulta, or concealed insanity; a phase of disease which has been 
the cause of much perplexity to the courts, as well as of much 
animated controversy among psychologists. Is there such a 
thing as latent insanity, which is undistinguishable by any of 
the usual psychological tests until the period of the commis- 
sion of the controverted act? This was affirmed by Platner, 
by whom the term was first used. “ Est igitur amentia occulta 
nisus et conatus animi oppressi ad actionem violentam, hanc 
actionem secreto appetentis et molientis, tanquam suse oppres- 
sions levamen et liberationem.” Two cases are cited by him 
as illustrations. The first is that of a man who was good 
natured, but superstitious, hypochondriac, and of weak intel- 
lectual powers. He conceived the idea that he was the object 
(a) Griesinger’s Mental Patliol., Syden. ed. (1871), § 130. 
696 BOOK I.] 
PARTIAL DELIRIUM. 
[§ 708 
of persecution, and of various attempts to bewitch and to 
poison by deadly perfumes; and he killed the supposed 
offender; declaring that he would rather be executed than to 
live as the victim of such enmity. Here, as Liman well 
remarks, there was no amentia occulta, but a case of insanity, 
exhibiting itself antecedently with great plainness in the com- 
mon phase of insane delusion as to persecution. The other 
proof-case given by Platner is that of an alleged pyromaniac 
girl of seven years, whose irresponsibility on other grounds 
was abundantly shown. 
§ 707. Undoubtedly some countenance is given to this theory 
by Dr. Maudsley,(6) by Dr. Castelnau,(c) and by Dr. Jarvis,(d) 
in their assumption that there is such a thing as mania which 
is “ instantaneous, temporary, fleeting, a mental disorder, 
which breaks out suddenly, like the sudden loss of sense in 
some physical diseases, and the subject is urged in a moment 
to automatic acts, which could not have been foreseen.” This 
phase, however, belongs distinctively to the next head.(e) 
§ 708. We certainly can conceive of insanity that is latent 
except at some parenthetical period when it bursts out into 
mania and then retires again from observation; but as to this 
two remarks are to be made. 
First. Human law, whether moral or positive, can only draw 
its conclusions from overt acts. We can conceive of an emi- 
grant, for instance, who in intention is a citizen; but until he 
declares his intention, and is naturalized, he is not legally to 
be treated as a citizen. We can conceive of a person intending 
to give money to a charitable object, but until he evidences 
his intention by will or deed, the act is not the subject of legal 
cognition. We can conceive of a person signing a paper under 
duress; but to make the defence good, duress must be proved. 
So we can conceive of a person irresponsible through insanity, 
but, if so, the insanity must be proved. It is true that it 
may be inferred from an act that in itself is motiveless and 
passionless, especially when there is evidence of superinducing 
(b) Jour. Ment. Sc. ix. 335. 
(c) Annales d’Hygiene Publique, etc., xlv. p. 210, cited by Dr. Jarvis, in a 
learned appendix to Andrews’s Trial, p. 26G. 
(c?) Andrews’s Trial, p. 266. (<?) Infra, § 710. 
697 § 709] 
MENTAL UNSOUNDNESS. 
[book i. 
causes of insanity. But, when the act has motive, whether 
that motive be passion or interest, and when the act is intelli- 
gent, then there can be no defence of mania or dementia occulta. 
Insanity must be proved aliunde as a prior state, involving de- 
rangement of mind. 
Secondly. To admit such a disease as a defence would be to 
make criminal justice powerless. Hot only is the disease (if 
the title he correct) incapable of diagnosis, but there is no case 
of crime to which the defence, if good, may not be applied. 
The insensibility of the act by itself cannot prove the disease, 
for there is no crime, no matter how astute the perpetrator, but 
betrays, as will hereafter be seen, some incoherence in its pre- 
paration ; and no maxim is more trite than that crime is in itself 
folly. Folly, incoherence of some kind, if not barbarous 
ferocity, are incident to all crimes; and if to these it is per- 
mitted to tack amentia occulta—an insanity of which the only 
proof is the nature of the act—then there is no prosecution of 
crime to which such insanity cannot be successfully pleaded. 
Thirdly. The assumption rests, in practice, on a petitio prin- 
cipii. There is no case of occult insanity mentioned in the 
books in which patent proof of prior insanity is not offered to 
show occult disease. The illustrations of this in the cases cited 
by Platner have already been given. A scrutiny of other cases 
cited by the advocates of this theory will produce a similar 
result. In one case the “ occult” disease burst out in the state 
of sleep-drunkenness, a condition in which, as has been shown, 
the mind is substantively disordered. In another, hereditary 
insanity was proved; in another, epilepsy; in another, a 
chronic lesion of the brain ; in another hypochondria. The 
fallacy of the position may be seen by the following statement: 
occult insanity is shown by inductive proof of a prior insane 
state, but, when there is inductive proof of a prior insane 
state, insanity ceases to be occult. 
§ 709. Amentia occulta has sometimes, as has been noticed, 
been blended with mania transitoria, or acute transitory mania. 
This special mania, however, does not necessarily imply, and 
indeed by its definition excludes, a prior state of occult insanity. 
Mania transitoria will be, therefore, independently considered. 
698 BOOK I.] 
MANIA TRANSITORIA. 
[§ 711 
(b2) Mania transitoria. 
§ 710. Mania transitoria, or furor transitorius, assumes a sud- 
den, parenthetical, transient, motiveless outburst of insane 
fury in a person previously and subsequently sane. It is, there- 
fore, to be distinguished from occult insanity {amentia occulta), 
which has just been noticed, in which there is prior insanity 
which is latent and concealed; from “ moral” insanity, as it is 
called, which assumes a permanent derangement of the moral 
as distinguished from the intellectual faculties; and from the 
so-called special manias, such as homicidal mania, klepto- 
mania, and pyromania, which involve permanent constitutional 
impulses to particular abnormal acts. Mania transitoria not 
only does not involve, but from its term excludes all chronic 
insane frames, or states, or impulses. It is from its very nature 
sudden, causeless, exceptional, parenthetic, and vehemently 
antagonistic to the patient’s usual line of character and type of 
mind. 
§ 711. Upon the question in its general relations we have 
some excellent observations read by M. Devergie before the 
Imperial Academy in 1859. 
“ No incentives to the deed, either in passions not sufficiently 
repressed, or in an acquired fixed idea; antecedents and man- 
ners irreproachable; absence of hallucinations; outbreak of 
insanity manifested by a criminal act, and instantaneous re- 
turn to reason as soon as the deed was accomplished—these 
are, according to us, the characters of transitory insanity. 
Nevertheless, the word transitory, perfectly just for the world 
in general, in the sense that the madness is but transient, 
though the deed done be of the most criminal description, does 
not appear to me sufficiently exact for the physician. Indi- 
viduals of the character described ought not to be considered 
of sound mind when an idea of crime has suddenly risen within 
them, when this idea has constituted with them a dominant 
and irresistible thought, stronger than the Me, stronger than 
the will. 
“ Antecedents of family, divers acts of social life, propensi- 
ties, tastes more or less perverted, tendencies to taciturnity, 
ideas of suicide, are often manifested many years before the 
699 §711] 
MENTAL UNSOUNDNESS. 
[book i. 
explosion of the irresistible criminal idea. So that to say 
that the passage from reason to insanity can be hasty or instan- 
taneous, in the opinion of the physician is to commit an error. 
This state has prodromata, as every malady has; and, accord- 
ing to us, if these prodromata do not exist, it would be impossi- 
ble to see in the reported criminal act an act of insanity. 
“ Moreover, M. Lelut(y) has said, with much truth, in re- 
gard to this species of insanity, that, at its commencement, 
and in the mental tendencies which are the predisposing or 
constitutional cause of it, insanity is still reason, as reason is 
already insanity (la folie est encore de la raison, comme la 
raison est ddp de la folie). This constitutes, for the physician, 
one of the first elements towards the solution of the question. 
“A second datum of great interest, in a medical and moral 
point of view, is the disproportion which exists between the 
enormity of the offence and the motive or interest which has 
led to its committal. 
“ If we examine all the criminal processes which have been 
instituted on the occasion of similar offences, and which have, 
moreover, been diversely adjudicated upon, but which, for the 
physician, have been acts of madness, it will be seen that the 
motive which led to the committal of the deed was not, so far 
as its consequences were concerned, in relation with the action 
itself. In other words, the accused, in committing the crime, 
had in prospect the scaffold; and, even in the case of impunity 
from it, he derived frequently no advantage, material or moral, 
from the act which he had committed. 
“ How, every important act of a man of sound mind has 
one end. That end is the attainment of an advantage propor- 
tionate to the consequences of the act. When an individual 
stakes his life upon it, he hopes to obtain in exchange mate- 
rial or moral advantages, more or less considerable, and by 
which lie expects to profit largely. 
“ If it be asked what are the conditions under which the 
reputed criminal act is performed, we are at once struck with 
the want of foresight which has preceded and accompanied 
(g) Reclierclies des Analogies de la Folie et de la Raison, a la suite de son 
ouvrage Le Demon de Socrate, p. 318. 
700 BOOK I.] 
MANIA TRANSITORIA. 
[§ 712 
its fulfilment. Keither the moment of the deed nor the mode 
by which it has been effected, have been the object of any pre- 
meditation. Moreover, the deed has probably been committed 
at the most unfavorable moment, although the accused had 
had a thousand opportunities of effecting it in secret. 
“ Far from avoiding justice, the insane individual, in other 
respects an upright man, comprehending quickly the enormity 
of the crime that he has involuntarily committed, occasionally, 
nay, most commonly, gives himself up to justice. In effect, 
the dominant notion has hastily ceased to exist; moral free- 
dom has resumed its empire, and the so-called criminal has 
ceased to he mad. 
“ If investigation is extended to the mental state of the pa- 
ternal or maternal ancestors of the accused, it is common to 
find that one or more members of the family have committed 
suicide, or have had a more or less prolonged attack of in- 
sanity. 
“ Lastly (and this is a criterion of great value), if we inves- 
tigate the offence from two different points of view, the hypo- 
thesis of a criminal act, and the hypothesis of an act of folly, 
in order that either view should he established, it is necessary 
that it should expose all the facts without effort, while the 
opposite view should present a series of improbabilities which 
at once strike the judgment and are inconsistent with expe- 
rience. The last method leads the physician with the greatest 
certainty to a right apprehension of the facts; by it doubt is dis- 
sipated, conviction arrived at, and the conscience relieved.”(A) 
§ 712. Mania transitoria (furor transitorius) was advanced as 
a defence in the trial of Andrews, before the Supreme Court 
of Massachusetts, in December, 1868.(i) The deceased, Holmes, 
was found dead in a wood, a short distance from Andrews’s 
house, and from a street in the village of Kingston; his head 
mangled and his skull crushed. A considerable sum of money 
was found in his pocket. Suspicions were attracted to An- 
drews, who had been an intimate friend of the deceased, and 
(h) Extract from a paper read before the Imperial Academy of Medicine, 
Paris, and translated for Winslow’s Journal of Psychological Medicine. 
(i) See supra, § 162, and also, for similar case, § 166. 
701 702 
MENTAL UNSOUNDNESS. 
[book I. 
who had in his possession a will of the deceased leaving him 
a considerable sum of money. Andrews denied all knowledge 
of the homicide; hut, when it was shown that he had pre- 
viously written to Holmes inviting him to come over about 
the time in question, that he was the last person in Holmes’s 
company, that his accounts of his conduct were contradictory 
and prevaricating, that his own clothes, worn by him at the 
time of the homicide, had been cast by him, in a bloody state, 
in a neighboring well—then he confessed his guilt. This con- 
fession, in the shape that it took when he was examined on 
his trial, was, that Holmes, whom he had met at the wood by 
the appointment just mentioned, had attempted to commit on 
him an unnatural crime, and that he had killed Holmes, partly 
in self-defence, and partly in an ungovernable transport of 
fury. 
§ 713. Hr. Edward Jarvis, a physician of Dorchester, Massa- 
chusetts, called for the defence, opened his testimony by stating, 
that “ it is thirty-three years since I commenced attending to 
mental diseases more particularlyand that “ since 1835 I 
have had private patients under my charge, but am now mostly 
employed as consulting physician.” He strongly maintained 
the existence of furor transitorius, or sudden mania, as an in- 
dependent form of insanity. His views, as subsequently ex- 
panded in an article in the Medical as given in 
Mr. Davis’s report of the trial, are as follows:— 
“ This is not exclusively a new or an old doctrine, but it has 
been taught in France and Germany for many years, by the 
managers of the insane, and by writers on these topics. It is 
recognized by psychological authorities in Great Britain. It is 
admitted and established by jurists and courts in Europe, in 
their management of persons who have committed acts which 
would otherwise have been considered as crimes, and for which 
they would have otherwise been doomed to death on the scaffold. 
“ The case of Andrews, who was tried at Plymouth in De- 
cember last, for homicide, has brought this subject prominently 
before the public here. As there is a difference of opinion in 
regard to this doctrine, especially in its application to the case 
O') See also 26 Am. Jour. Ius. 369. 
702 BOOK I.] 
MANIA TRANSITORIA. 
[§ 713 
of Andrews, it may be well to present tlie views of those who 
have written upon it, in connection with an account of An- 
drews’s agency in the homicide, and of his trial. 
“ Dr. Henry Maudsley, manager of a lunatic asylum at 
Hanwell, near London, and one of the editors of the Journal 
of Mental Science, says, ‘ Cases of insanity are occasionally 
observed in which an attack of mania suddenly comes on, and 
soon passes away, so that although there is no epileptic fit, one 
can scarce avoid looking upon the attack as a sort of epilepsy. 
How this mania transitoria may take on the homicidal form.’(7) 
“1. He quotes from the Journal de Med. et Chir. Pratiq., 
1833, the case of a shoemaker, who was of industrious, sober 
habits. He arose early one morning to go to work. In a 
short time his wife was struck with his wild look and incohe- 
rent talk. He suddenly {tout d coup) seized a knife and rushed 
upon his wife to kill her. She had hardly time to escape with 
her child. Dr. Lowenthal was called. He bled and gave 
other remedies to the maniac. In the afternoon he was quiet. 
In the evening he regained the use of his faculties, but he had 
no recollection afterwards of the events of that morning. 
“ Castelnau calls this La Folie Instantanee, temporaire pas- 
saglre, ‘ mania instantaneous, transitory, temporary, fleeting, a 
mental disorder, which breaks out suddenly, like the sudden 
loss of sense in some physical diseases, and the subject is urged 
in a moment to automatic acts, which could not have been 
foreseen.’(m) 
“4 The first act of the mania may be homicide, and the dis- 
ease may pursue its course under the continued or intermittent 
form, but, when the act of violence or homicide is the only 
maniacal manifestation, it is instantaneous, temporary, fleeting, 
transitory insanity, according to Henke, Marc, Cazauvielh, etc.’ 
“ 2. He quotes in illustration from Iliem of Berlin, the case of 
a councillor of state, who had ever enjoyed good health. He 
suddenly awoke one night, breathing stertorously. His wife 
endeavored to aid him. He assailed her with the most violent 
(Z) Journ. Mental Science, ix. 335. 
(•m) Dr. Pli. Boileau de Castelnau in Annales d’Hygiene Publique et de 
Medecine Legale, xiv. 217. 
703 § 713] 
MENTAL UNSOUNDNESS. 
[book 1. 
fury, and tried to throw her out of the window. After a 
struggle for half an hour, he was exhausted. An emetic put 
an end to the paroxysm, and for fourteen years he had had no 
other attack, (n) 
“ 3. A laboring man of Garde, returning from his work, met 
his wife, and asked her if supper was ready. She immediately 
seized a knife and struck him a fatal blow. She had not been 
insane, though excitable, and belonged to an insane family.(o) 
“ Castelnau, referring to this form of mental disorder, says, ‘ I 
could show by facts, already so numerous, recorded in the 
works of physicians devoted to the study of insanity, and the 
observation of the insane, the existence of a mental malady 
which society has the greatest interest to know, in order to 
prevent consequences dangerous to the community and to the 
person affected.’(.p) 
“Again Castelnau says, ‘We could cite a great number of 
facts, but these are sufficient to show that the various kinds of 
insanity, as of all the diseases of the organism, can establish 
themselves in a manner either progresssive or sudden, and 
have a progress slow or rapid, continued, intermittent, or 
temporary.’^) 
“ After a great variety of facts and arguments, Castelnau, at 
the end of his essay, says in conclusion: ‘ There exist these in- 
stantaneous changes in the mental faculties, that is, instanta- 
neous insanity. 
“ ‘ These changes have their first and only manifestation in 
a single act of qualified crime.’(r) 
“ Castelnau’s essay was published in 1851; seven years later, 
December 14, 1858, M. Le Dr. A. Devergie read, before the 
Imperial Academy of France, an essay on the questions, ‘ Where 
does reason endf Where does insanity begin? This was printed 
in the Annales d’Hygiene, Publique et de Medicine Legale, in 
1859, vol. xi., second series. lie confirms the opinions of Cas- 
telnau, in regard to instantaneous and transient insanity, ex- 
cept that he qualifies them with the certainty or probability, that 
all or nearly all these cases had been preceded by hereditary 
(?i) Castelnau, Ann. Hyg. et Med. Leg., xlv. (o) Ibid., 993. 
(p) Ibid., 216. (q) Ibid., 438. (r) Ibid., 998. 
704 BOOK I.] 
MANIA TRANS1T0RIA. 
[§ 713 
taint or some mental disease or irregularity in greater or less 
degree. 
“ ‘ Beside those cases of insanity produced under all these 
causes, is another mode of alienation, to which they gave the 
name of Transitory Insanity (folie transitoire), that is to say, 
without preceding apparent symptoms, without cause, near or 
remote, appreciable to the world, bursting out as suddenly 
(brusquement) as a clap of thunder, and ceasing completely 
with a criminal act.’(s) 
“ ‘ No motive for the act, either in ungoverned passions, or in 
acquired ideas; previous character and manner without re- 
proach ; absence of hallucinations ; the explosion of the mama 
manifesting itself in one act of violence or crime, and the im- 
mediate return of reason after this act is accomplished; these, 
in my opinion, are the characters of transitory insanity.\t) 
“ Devergie qualifies this description as above indicated: 
‘ Nevertheless the word transitory, perfectly just for the world, 
in the sense that the mania was fleeting (yassag&e), although 
the act was of the most criminal nature, does not seem suffi- 
ciently exact for the physician. The persons of this descrip- 
tion should not be considered as sound in mind when the idea 
of crime suddenly rises within them, and becomes the ruling 
thought, irresistible, stronger than themselves, stronger than 
their own will. The antecedents of their families, hereditary 
taint, divers acts of social life, propensities and tastes per- 
verted, tendencies to silence and abstraction, thoughts of sui- 
cide, for years existing in many, have been the forerunners of 
the sudden outburst of irresistible criminal mania.’(d) 
“ 4. Devergie quotes the case of a young man of nineteen, son 
of a merchant of Bordeaux. lie had been most regular and 
exemplary in all his previous life, an affectionate brother, 
dutiful son, faithful to his employer, a banker, and the heir of 
an immense fortune, but he was the child of insane parentage, 
and had a mother-in-law for whom he had a deep aversion. 
There was a dinner party at his father’s house, which passed 
without unusual incident. ‘At the time of the dessert, Julius, 
(s) Ann. Hyg. et Med. Leg. xi. 2d ser. 407. 
(<) Ibid., 408. (O Ibid., 408. 
YOL. I.—45 
705 §713] 
MENTAL UNSOUNDNESS. 
[book i. 
the youth, left the table, and went to the hall to warm himself; 
the fire was not burning ; he then went to his chamber, took 
his gun and straw hat to walk in the fields as he was ac- 
customed to do. Then the thought of suicide, which had 
troubled him for a month, suddenly presented itself, and as 
suddenly changed to the thought of killing his mother-in-law. 
ITe threw down the gun, went to his brother’s chamber, took 
two pistols, which had been loaded three months, leaving his 
own pistols that he had loaded the evening before. He went 
to the dining-room, where his mother-in-law was sitting at the 
table with his father, and discharged one of the pistols into 
her temple.’(w) He was rational immediately afterward, and, 
so far as is known, remained sane. 
“Upon this case Devergie remarks: ‘If the act which young 
Julius committed was one of mania, it was in him a passage 
sudden and rapid from reason to insanity, and a return as 
sudden from insanity to reason. This then is a very exact 
example of that species of mania which is called transitory.’ 
This case was submitted to MM. G-intrac and Delafosse of 
Bordeaux, Calmiel, Tardieu, and Devergie, who gave their 
opinion, ‘ that Julius, at the moment of this action, had not 
the possession of his freedom of will,’ and the court and jury 
acquitted him fully of the charge of crime.(v) 
“ These doctrines are sustained by French lawyers, and put in 
practice by French courts and juries, in the trials of cases of 
this nature. ‘ Billard, a jurist (jurisconsulte) of high character, 
whom no one suspects of being indulgent, recognizes the re- 
ality of instantaneous insanity.’ He says: ‘ There are some 
madmen whom nature condemns to eternal loss of reason, and 
others who only lose it for a moment (instantanement) by the 
effect of some great grief, surprise, or other cause of this kind. 
There is no other difference between these two forms of mania 
than that of duration, and one whose head is turned for some 
hours or for some days is as completely insane, during this 
ephemeral action, as the one who is mad for many years.’ 
Les alienes devant les corn's d’Assizes.(w) 
(«) Ibid., 398. 
(v) Ann. Hyg. et Med. L6g. xi. 2d ser. 499. 
(w) Casteluau in Ann. Hyg. et M6d. L6g. xlv. 217. 
706 BOOK I.] 
[§ 713 
MANIA TRANSIT0R1A. 
“ To this Hevergie acids: ‘ So in the short period of thirty 
years or more, we have passed from incredulity, I may say, 
from ignorance the most profound of the nice distinctions of 
insanity, with such immense advance, that now our judges and 
juries accept as founded on evidence not only delusions on a 
single point, monomania, but even those transitory aberrations 
of reason which, in the judgment of the world, transform a 
man of previously honorable character into a criminal, and one 
so much the more wicked because he has covered his perver- 
sion of heart so completely as to conceal, through a long period 
of years, the baseness of his act under the garb of the most 
irreproachable life.’(^) 
“ Esquirol says: ‘ These deplorable homicidal impulses are 
spontaneous and fleeting, and without habitual delusion.’(y) 
Referring to murder by one in this condition, he says: ‘ This 
presupposes the suppression of all intelligence, all sensibility, 
and all volition. The following fact will best explain my 
meaning. 
“5. ‘A man, thirty-two years old, tall, thin in flesh, of a 
nervous temperament, amiable disposition, was educated with 
great care, and accomplished in the fine arts. He had had a 
cerebral affection from which he had recovered many months 
previous to his arrival in Paris, two months ago. There he 
conducted himself with great propriety, until one day, when 
he entered the Palace of Justice, and there threw himself upon 
a lawyer and seized him by the throat. He was arrested and 
taken to prison, and put under my care on the same day. At 
my first visit, on the next day, he vras calm, without anger or 
resentment, and had slept all night, and had sketched a land- 
scape. He spoke of his going to the court-room the evening 
previous, coolly, but had no recollection of his conduct there or 
of his motives. Hor did he manifest any regret. He answered 
my questions courteously, and with an air of sincerity. “I 
went to the Palace of Justice, as I would to any other placei 
without any special purpose, merely as a sight seer. I not only 
had no ill will against the advocate, but did not even know 
(%) Ann. Hyg. et Med. Leg. si. 2d ser. 402. 
(y) Malad. Mentales, sous les Rapports Medico-Legal, ii. 104. 
707 § 714] 
[book 1. 
MENTAL UNSOUNDNESS. 
him. I cannot understand how I could have committed such 
an outrage.” When I said, that it could be explained only by 
the sudden attack of some disease, he said, “You may explain 
it as you please; I am not conscious of having been ill, and I 
cannot tell how this could have happened.” During the three 
months that he remained under my observation, he manifested 
not for an instant any disorder of the mind.’(a:) 
“ Castelnau says: ‘There is no want of authorities to estab- 
lish the doctrine of instantaneous insanity.’ The observations 
made by writers on medical jurisprudence (medicins legists) of 
the present day leave no doubt of the existence of this mania 
of a few instants, during which men who have never mani- 
fested insanity all at once {tout d coup) are completely deprived 
of their reason and give themselves up to the most deplorable 
excesses. The learned chief editor of the Journal du 
et de Chirurgie Pratique offers five examples of this kind of 
mania. In four of these, accidental circumstances only pre- 
vented persons, whose previous life had been irreproachable, 
from committing crimes. The fifth case was that of a woman 
who killed her mother and three others, and wounded a fourth 
person. ”(a) 
§ 714. With this may be classed the argument of Dr. Ham- 
mond, in his review of McFarland’s case:—(b) 
“ I have stated, incidentally, that there is a form of insanity 
which, in its culminating act, is extremely temporary in its 
character, and which, in all its manifestations, from beginning 
to end, is of short duration : 1st. This species of mental aber- 
ration is well known to all physicians and medical jurists who 
have studied the subject of insanity, (a) By authors it has 
been variously designated as transitory mania, ephemeral 
mania, temporary insanity, and morbid impulse. (b) It may 
be exhibited in the perceptional, intellectual, emotional, or 
volitional form or as general mania. 
“ 2d. The exciting causes of temporary insanity are numer- 
ous. (a) It may be induced by bad hygienic influences, such 
(2) Malad. Mentales sous les Rapports Medical et M6dico-Legal, ii. 102. 
(а) Ann. Hyg. et Med. Leg. xlv. 221. 
(б) Jour. Psyc. Med. 459. 
708 BOOK I.] 
[§ 715 
MANIA TRANSITORIA. 
as improper food, exposure to intense heat, cold, or dampness, 
or to a noxious atmosphere; by excessive physical exercise, by 
disease of the heart, by blows upon the head or other parts of 
the body, by certain general and local diseases, by the abuse of 
alcoholic liquors, by the ingestion of certain drugs, such as 
opium, belladonna, and hashish, by excessive intellectual occu- 
pation, by loss of sleep, and, above all, by great emotional 
disturbances. (b) Among these latter are religious excitement, 
grief, disappointed affection, and especially anxiety, by which 
the mind is kept continually on the stretch, tortured by appre- 
hensions, doubts, and uncertainties, and by which it is worn 
away more surely than by the most terrible realities. 
“ 3d. The predisposing causes are to be found in the indi- 
vidual, as an inherent part of his organization. (a) They consist 
in an hereditary tendency to insanity, or to some other profound 
affection of the nervous system; (6) or the possession of an ex- 
citable, nervous temperament, which is incapable of resisting 
those morbid influences which persons of phlegmatic disposi- 
tion would easily withstand. (c) Thus, all men are not affected 
alike by disturbing causes, because all men are not cast in the 
same physical or mental mould; a circumstance which will 
produce insanity in one person, will scarcely ruffle the equa- 
nimity of another. 
“4th. The immediate cause of temporary insanity is the 
disease itself, of which the mental aberration is simply the 
manifestation. It may consist of—(a) A condition of cerebral 
exhaustion in which, owing to excessive wear and tear of the 
brain, new substance is not formed with sufficient rapidity to 
take the place of that used; (6) The circulation through the 
brain of blood which is not normal in quality; (c) Cerebral 
congestion.” 
§ 715. A qualified assent to the same hypothesis may be 
found in a late (1871) publication of Dr. Krafft-Ebing. (Die 
Lehre von der mania transitoria.) This experienced and subtle 
observer records 18 cases which he declares exhibit the symp- 
toms of this disease. Of these, 15 were men and 3 women. 
The attack in 14 out of 18 of these cases was sudden, without 
the premonitory signs of ordinary mania. In most of the 
709 § 716] 
MENTAL UNSOUNDNESS. 
[BOOK I. 
reported cases, terror was strongly marked. The patient sud- 
denly was overcome with anguish ; with fear of approaching 
death ; with belief that he was assailed by a vindictive and 
desperate enemy. In some instances the “ mania” took the 
form of violent rage. But it is an essential requisite of mania 
transitoria, according to Dr. Krafft-Ebing, that the patient’s 
power of memory should be lost during the prevalency of the 
attack. He is unconscious afterwards of anything that he did 
while the attack continued. This, it is maintained, is an in- 
fallible test, and one which is readily applied. Dr. Krafft- 
Ebing on this point, however, advances positions which open 
his whole exposition to unfavorable criticism. He declares that 
a simulant, who feigns this disease, will not know where his 
oblivion is to commence, and where it is to end. But a simu- 
lant who is intelligent enough to select this peculiar type of 
disease as that which he is to feign would be intelligent 
enough to follow Dr. Krafft-Ebing’s prescription how to do so 
successfully. And the prescription is simple enough : “ forget 
everything that you did when you lapsed into this transitory 
rage—remember everything else.” Dr. Krafft-Ebing declares 
that the simulant would betray himself by his consciousness. 
But an intelligent simulant would do no such thing; whereas, 
an innocent person, hurried unconsciously into crime by such 
a mania, would, on being subsequently informed of it, be 
overcome, when the subject was afterwards referred to, with 
emotions which it would be difficult to distinguish from re- 
morse.^) 
§ 716. On the other hand, Dr. Choate, superintendent of the 
Taunton Lunatic Asylum, who has held that “ position for the 
last fifteen years,” and has had “ about three thousand six 
hundred patients” under his charge, in addition to extensive 
collateral observation, testified in Andrews’s case that “ there 
are no cases of instantaneous insanity, instantaneously ma- 
niacal,” declared that he had never known such a case, and 
testified that “ the fact that a man was under constant obser- 
vation and appeared sane down to an hour at least before the 
(c) Observations somewhat similar to those of Dr. Krafft-Ebing are re- 
corded in the Edinburgh Medical Journal for November, 1865. 
710 BOOK I.] 
MANIA TRANSITORIA. 
[§ 719 
homicide, and then half an hour afterwards, is to my mind 
conclusive that the homicidal act was not in consequence of 
disease, and did not spring from insanity.” To the same 
effect is the testimony of Dr. Bell, on the trial of Rogers,(d) 
who stated that he had had a thousand patients under his 
care. 
§ 717. With regard to the argument of Dr. Jarvis, which 
has been given above, the following observations are to be 
made:— 
§ 718. First. However it may have been at the time Dr. 
Jarvis wrote, it cannot now be affirmed that Furor Transi- 
torius, or Mania Transitoria, as a distinctive disease, is recog- 
nized generally by the German and French writers on psycho- 
logical medicine. Friedreich^1) and Schiirmayer, as will pre- 
sently be seen,(J2) positively decline to award it such a status. 
Dr. Liman, who may be regarded of high authority, not 
merely as the editor of Casper, but as a high government 
officer charged with the judicial examination of questions of 
insanity, says, with much emphasis, that there may undoubt- 
edly be transient attacks of insanity, but “ there is no distinc- 
tive species of mania of this class, no so-called mania transi- 
toria;.” “ This unscientific and perilous designation,” he con- 
tinues, “ cannot be applied to practice; and is entirely super- 
fluous in the elucidation of each individual case by the general 
diagnostic tests.” And Dr. Bucknill(e) says that “ the existence 
of this class admits of grave doubt,” and adds, very justly, 
that “ it is probable that the cases of insanity which have been 
placed under this head, were less recent and sudden than they 
were supposed to be. The earlier stage of diseased feeling had, 
been unobserved by others, and unacknowledged by the patient.” 
§ 719. Secondly. The alleged cases are either imperfectly 
reported, or exhibit proofs of permanent mental lesion. Of im- 
perfect reporting may be mentioned Ho. 1 in Dr. Jarvis’s state- 
ment as given above. To prove a negative we must set out by 
showing that there has been a due application of the requisite 
tests. But as to the history of the patient whose case is here 
(d) Pamp., p. 149. ((Z1) Handbuch, etc., p. 591. 
(d2) Infra, § 722. (e) Essay on Criminal Lunacy, p. 38. 
711 § 719] 
MENTAL UNSOUNDNESS. 
[book i. 
noticed, we have no information, and no evidence given that 
any attempt was made to search for it. Whether he had had 
prior attacks—whether there was insanity in his family— 
whether he was epileptic—we are not informed. 
Case No. 2, that of Stadsrath Lemke, was reported as far 
hack as 1817, and has since been repeatedly canvassed. It was 
clearly a case of sleep-drunkenness,(/) to which, it appeared 
that Lemke was subject, and during which, at a prior period, 
he had made a homicidal attack on his secretary. In the case 
cited above, it appears he had been previously on a hunting 
party, and his sleep was probably deepened by his exposure, if 
not by conviviality. No doubt he was startled by some noise, 
and thereupon attacked his wife in words that showed that 
he thought her a thief. It was under a similar delusion, when 
suddenly startled in his sleep, that he had previously attacked 
his secretary. The case was not mania transitoria. It was 
simply the momentary terror and violence of sleep-drunken- 
ness; a state capable of easy ascertainment, and of positive 
judicial recognition. 
Case No. 3 is that of a person who is spoken of as “ ex- 
citable,” and as belonging “to an insane family.” Nothing is 
said which excludes the supposition of subsequent insanity, of 
which the outburst referred to was the first open sign; and there 
is no statement as to the symptoms of “excitability” which 
in this woman of insane family preceded the outburst. But, 
unless these symptoms indicated insanity, and unless subse- 
quent insanity occurred, it is hard to make out of the facts 
above stated a case on which a court of law could rest a 
verdict of irresponsibility. The “ excitable” wife of a labor- 
ing man, when he asks her, it may be in some way to 
irritate her, if supper is ready, strikes at him with a knife, 
and the blow proves fatal. Such cases are frequent in crimi- 
nal courts; but in no case would an acquittal on ground of 
insanity ensue, unless insanity was proved aliunde. If mania 
transitoria is supposed to be sufficiently shown by such a vio- 
lent act, taken by itself, then there is no violence yielded to 
sudden rage that is not mania transitoria. The case, therefore, 
712 
(/) See supra, § 484. BOOK I.] 
[§ 722 
MANIA TRANSITORIA. 
rests as follows: If there was no proof of insanity aliunde, then 
there was no mania—nothing but a burst of ill-temper and 
irritation, common to all acts of sudden violence. If there 
was proof of insanity aliunde, then the case was not mania 
transitoria, for the very idea of the transitory and parenthetical 
character of this mania excludes the idea of its being the 
manifestation of a continuous state. 
The same observation applies to Ho. 4, though in this case 
the question is embarrassed by the fact that the defendant is 
admitted to have had a “ deep aversion” to the mother-in-law 
whom he killed. 
Ho. 5 would exhibit the same features as “ homicide from 
general malice,” well known in the law books, were it not that 
the defendant is stated to have had a prior “ cerebral affection,” 
and subsequent to the deed to have lost all recollection of the 
event. Here then, again, mania transitoria can only he sus- 
tained by evidence of cerebral disease before and after the act. 
If, however, there he such prior and subsequent cerebral dis- 
ease, the case is not mania transitoria. 
§ 720. Thirdly. To admit that such an hypothesis of irre- 
sponsibility is applicable to acts of sudden abnormal violence, 
without proof of insanity before or after the act, is to eman- 
cipate violence and barbarism from penal restraint. The more 
atrocious the act—the more complete the proof of the de- 
fendant’s prior and subsequent sanity—the more distinctively 
is the defence of mania transitoria made out. 
§ 721. Fourthly. The principle of the law, that a person sane 
before and after a particular act, is to be presumed to be sane 
during such act, is a principle of common Without 
it, none of the business and social intercourse of life could be 
sustained. 
§ 722. Hot differing widely from these results are the views 
of Friedreich(T) and Schiirmayer.(m) The latter defines this 
phase of mania to involve an attack of frenzy, fury, and rav- 
ing madness, accompanied with more or less confusion of the 
(g) See supra, §§ 246, 269. 
(l) Friedreich, Handbucli der gericktlichen Psyckologie, p. 591. 
(m) Gerickt. Med. § 522. 
713 § 722] 
MENTAL UNSOUNDNESS. 
[book i. 
senses, and of the thinking faculties, and peripheric conscious- 
ness which arises without any perceptible or from a very slight 
external provocation, generally lasts but a short time, hardly a 
few hours, and, after sometimes leading to the most serious 
consequences, leaves but an indistinct trace in the memory. It 
is either the opening symptom of a disturbance of the super- 
physical faculties which has hitherto remained occult, and now 
first manifests itself, or it appears in persons hitherto entirely 
sane, or in individuals who have already suffered from pro- 
nounced insanity, particularly from melancholy, depressed de- 
lirium, lunacy, and imbecility. In the latter class of cases, 
the question of responsibility presents no difficulties; far more 
in the former, in view of the possibility that the guilty act 
may have been the result of the outbreak of violent passion. 
It will then be often impossible to do more than to set forth 
the possibility or probability of a furor transitorius, which is 
effected by establishing the existence of facts which may have 
caused it. Such are epilepsy, irregular development, gastric 
irritations, disturbances of the menstrual or hosmorrhoidal 
courses, or the secretion of milk, the sudden dispersion of 
eruptions of the skin, sunstroke, drunkenness, poison, violent 
agitation, anger, dread, fright, deep shame, over-exertion of 
the mind. But where no such probable causes are to be dis- 
covered, the examination is necessarily confined to the state- 
ments of the party, and the immediate investigation of his 
intellectual and moral condition, the principal point of atten- 
tion being the search and scrutiny of the motives of the acts, 
and the inquiry whether or not they were mingled with hallu- 
cinations or illusions, and whether the act was not preceded 
immediately, or for some length of time, by bodily disturb- 
ances, sleeplessness, restlessness, sadness, etc. Yery great diffi- 
culties are involved in those cases in which an additional doubt 
arises whether the ravings were not occasioned by the criminal 
act itself, the probability of which, with a certain class of 
temperaments, has been already noticed. 
The non-recognition by the courts of this form of defence 
has been already stated, (n) 
714 
(n) Supra, §§ 162, 166. BOOK I.J 
delusions and hallucinations. 
[§ 724 
J. Mental undsoundness as connected with delusions and 
HALLUCINATIONS. 
§ 723. Under this head will be treated that species of men- 
tal unsoundness which is marked by the continued and con- 
trolling existence of insane ideas, without being either 
accompanied with delirium or with moral maniacal propensi- 
ties to specific crimes. It may be considered as covering the 
same phrase as the partial lunacy (partielle verriicktheit) of 
Schurmayer, who declares it to consist in crazy notions, with 
only a secondary participation of the affective faculties, with- 
out damage to the peripheric consciousness, and without a 
decided weakness of the intellectual powers. The subjects of 
it have resolved their individuality into their madness, it is 
in their eyes an absolute truth, and all demonstration and 
argument in opposition to it are idle. Persons of this kind 
often suffer no external mark to betray their inward disorder, 
frequently speak and act quite rationally about and in matters 
outside of the circle of their hallucinations, and only suffer 
the point of derangement to transpire when it is adverted to 
in conversation or when they have occasion to write. The 
malady may easily lead to the gravest violations of law, for 
which reason it is of the greatest judicial interest. Where 
the act is clearly the result of this morbid condition of the 
mind, no legal responsibility can attach to it.(nx) 
This species of mental unsoundness appears less frequently 
as a primary disease, than as a secondary result, developed out 
of prior disease, in the form of melancholy or otherwise. 
When the general expansive and depressive affection of the 
sentiments recedes, the confusion of the peripheric consious- 
ness is dispelled, the bodily health regains its equilibrium, the 
patient finds himself endowed with a system of affections and 
perceptions to which he was before a stranger, but which re- 
volve round one or more manifestly insane stand-points. 
§ 724. These various fancies are reducible to certain groups, 
which take their point of departure (1) in the relations of the 
individual to the external world, to the supernatural, and to 
(w1) Scliurmayer, Gericht. Med. § 556 ; supra, §§ 125-145. 
715 §724] 
MENTAL UNSOUNDNESS. 
[BOOK I. 
Lis own personality, or (2) in perceptive anomalies of depression 
and mania. 
Tliqformer view admits the following classification: crack- 
brainedness,(o) where the erroneous notions relate to the objects 
and relations of the external world, and of the body of the 
individual; frenzy, where they concern things beyond the 
reach of the senses, religious mysteries and divine inspirations; 
folly (Narrheit), where the identity of the person has undergone 
a change. In the latter view, the subject-matter of the delu- 
sion generally depends upon the kind of erroneous notion 
which accompanied the preceding stages of depression and 
mania. The delusion itself is of a depressing or elevating de- 
scription. The depressive form subdivides as follows:— 
a. Hypochondriacal delusions, where anomalous bodily sensa- 
tions—delusions of the sense of touch—suggest the idea, that 
particular parts of the body have been transformed, that there 
are parasitic animals in them, or injurious substances, which 
must be removed, etc. 
b. Demoniacal delusions. The patients declare and maintain, 
with perfect self-possession and entire calmness, that demoniac 
beings or other persons, living or dead, have their seat in their 
bodies, (p) 
c. Such called by Eilinger “Concentric,” as 
consist in the delusion that the personal reputation of the 
sufferer has been injured by a real or imaginary misfortune, 
that the infamy incurred has reached the ears of the highest 
circles—impressions still further confirmed by delusions of the 
sense of hearing—and that no resource is left but either seclu- 
sion from all intercourse with mankind, or restitution of good 
fame by some bold exploit. 
d. Peripheric delusions, in which the patients regard them- 
selves as the objects of a plot on the part of the authorities or 
of their relatives, or of some secret society, surrounded by spies 
and functionaries of the secret police, watched and dogged at 
every step, injured bodily and mentally in action and repose; 
(o) “ A little cracked,” to use Dr. Rush’s popular synonyme, for what he 
at the same time tells us is expressed by the Scotch by the phrase “having a 
bee in his bonnet.” 
(p) See ante, §§ 644-GoO. (q) Eilinger, p. 132. 
716 BOOK I.] 
[§ 726 
DELUSIONS AND HALLUCINATIONS. 
persecuted and endangered in life and property, or that they 
are beleaguered by thieves, robbers, and murderers, or that 
spirits hover in the air to torment and disquiet them, etc. 
§ 725. The elevating or ecstatic phase of this species of 
mental unsoundness, subdivides itself, according to Schur- 
mayer:—(r) 
a. Religious delusions, which may be considered in connec- 
tion with dsemonio-mania, already noticed,(5) in which the 
patient pretends to stand in a particular position, as regards 
degree and distinction, in the eye of God, to have been ap- 
pointed censor, prophet, reformer, and Messiah, etc.; these are 
generally accompanied with hallucinations of sight and sound, 
and often lead to the most dreadful crimes. 
b. Delusions of pride. The patients suppose themselves called, 
by their qualifications of person and mind, to the most im- 
portant missions. 
c. Delusions of vanity. The delusion here is a supposed 
descent from a princely lineage, elevation to a higher social 
position, etc., the enjoyment of which, however, is destroyed 
by the machinations of the envious and malevolent. 
d. Sexual delusion, which is sometimes of a more intellectual, 
sometimes of a more carnal nature, is a state of mind in which 
the patients suppose that, in consequence of their personal 
charms or other advantages, either all people of the opposite 
sex, or even persons occupying a higher rank, such as princes, are 
in love with or betrothed to them in spirit. This is attended 
with many hallucinations, particularly of the sexual kind.(^) 
§ 726. It is not to be denied that the proper consideration 
of this species of mental unsoundness presents great difficulties, 
and the practical suggestions of Ellinger(w) are indeed worthy 
of peculiar attention. He notices the following phases:— 
“ 1. An impression of having sustained wrongs at the hands 
of certain persons, against whom revenge is meditated and 
executed. Here the diseased individual often acts on mature 
reflection, and in the full knowledge that he has no right to 
take revenge, and of the consequences which ordinarily ensue; 
(r) Med. Jour. § 556. (*) Supra, §§ 644-677. 
(«) fltfjpra, § 617. O) P. 137. 
717 § 726] 
MENTAL UNSOUNDNESS. 
[BOOK T. 
and then it may occur either that he prefers undergoing the 
extremity of the law, and perishing together with the supposed 
wrongdoer, to remaining longer exposed to his assaults, or that 
he proceeds on the ground of his known and established in- 
sanity, calculating to escape responsibility and punishment on 
the strength of the indulgence accorded to his case. Here 
there appears in general some ground to assume a moral re- 
sponsibility.^) 
“ 2. An impression that the patient is acting at the instiga- 
tion or under the constraint of demons. In this case it might 
become necessary to inquire whether, and in how far, the pa- 
tient understood that the demands of the demons were wrong- 
ful, and that he was at liberty to withstand them, and whether, 
and in how far, it was actually in his power to withstand 
them. 
“ 3. The patient imagines himself beset by thieves, etc., and 
neither sure of his property nor of his life. This may perhaps 
be treated as a case of self-defence, and all responsibility 
excluded.(w) 
“ 4. The self-consciousness of the patient is perverted, and 
he acts with that plenitude of power with which he is in- 
vested in view of his position and his destiny, in religion, 
politics, etc. In this case, as under the third position, respon- 
sibility is out of the question. 
“ But as a fixed idea never occurs in such isolation as is 
erroneously supposed, there being always a series of phantoms 
connected into a system, the outlines of which it may be per- 
haps impossible to define with accuracy. And as the entire 
affective life has become altered and irregular, the general 
views of men and things having become distorted, and illu- 
sions of the senses being often brought to light by a rigid 
scrutiny, which entirely escaped the eye of the superficial ob- 
server—as the action, reaction, and intro-action of the psychical 
faculties is no longer measurable by the ordinary standard— 
opinions must be given ivith the greatest circumspection, and every 
possible reservation, whenever the connection or want of connection 
between the illusion and the deed is not perfectly evident.” 
(v) See supra, §§ 125-145. (w) Supra, §§ 125-145,442. 
718 BOOK I.] 
DELUSIONS AND HALLUCINATIONS. 
[§ 728 
§ 727. It is not easy to mistake the error of a lunatic for the 
error of a sane man. The decisive point of difference between 
them is, that in the latter case the action of the thinking 
faculties, from whatever cause it he, only terminates too soon, 
and before the entire subject has been thoroughly sifted, and 
that such an error, after having been properly refuted, can 
only be maintained by dint of obstinacy or indolence. In 
insanity, on the contrary, the error of the understanding is 
occasioned by the abnormal function of the perceptive faculty. 
One or two prevailing schemes of are applied to 
almost all other perceptions to which they can be adjusted in 
any way, and thus one and the same tout ensemble of percep- 
tions is continually reproducing itself on the slightest provo- 
cation. Hence the chain of association loses, in the eye of the 
individual, its accidental, personal, and contingent character, 
and, by its constant recurrence, deludes the understanding 
with the idea that the same connection subsists between the 
objects in reality as in the imagination of the individual, until 
at last reason herself is misled into seeing a necessary relation 
of cause and effect in the perceptions with which it finds itself 
invariably associated. The individual is therefore compelled 
to think accordingly; and even if he is sometimes brought by 
instruction, to acknowledge his error, it is only to relapse into 
it, not so much from obstinacy, as because of this compulsory 
synthesis of the perceptive faculties. A sane man in error re- 
tains the power of doubting, not the madman. This condition of 
the perceptive faculties is also the cause of the great indiffer- 
ence manifested towards surrounding things, of the dreamy 
manner and the illusions growing out of it. It is also a matter 
of course that the perceptions, by their constant recurrence, 
cease to be mere perceptions, but ultimately take rank as 
thoughts and ideas, in consequence of their constant action 
upon the understanding, and their assumption of the form of 
propositions, (y) 
§ 728. A distinction is very properly drawn by Schiirmayer, 
following in this respect the general current of modern opinion, 
(x) Compare Hagen, vol. ii. p. 707. 
(;y) Ellinger, p. 818. 
719 §729] 
MENTAL UNSOUNDNESS. 
[book 1. 
between illusions and hallucinations, the former comprising 
mistakes in the conception and interpretation of the perception 
of objects actually present,-while in the latter, the perception 
which originates in a diseased action of the senses appears to 
the patient as if the sensation were produced by a real ex- 
ternal object acting upon the senses.^1) 
The same distinction is thus stated by Dr. Taylor: “Hallu- 
cinations are those sensations which are supposed by the patient 
to be produced by external impressions, although no material 
objects may act upon the senses at the time.(2) Illusions are 
the sensations produced by the false perception of objects.”(a) 
“ When a hallucination,” he proceeds to say, “ or an illusion is 
believed to have a real and positive existence, and this belief is 
not removed either by reflection or an appeal to the other 
senses, the individual is said to labor under a delusion; but 
when the false sensation is immediately detected and is not 
acted upon as if it were real, then the person is sane.” 
§ 729. “ As a morbid condition of the brain,” says Sir Ben- 
jamin Brodie, “ may produce the impression of visible objects, 
or of voices, which have no real existence, so it may also pro- 
duce notions of a more complex and abstract character, and 
these may be constantly obtruded on the mind, so that the 
individual is unable to withdraw his attention from them, 
being, as it would seem, as much beyond the influence of voli- 
tion as the muscles of a paralytic limb. Thus, one person 
believes himself to be ruined as to his worldly affairs, and that 
he and his family, though really in affluence, are reduced to 
extreme poverty; while another is persuaded that he is in 
possession of unbounded wealth, the consequence being that he 
is in danger of being ruined by extravagance; and a third is 
under the apprehension of his being accused of some dreadful 
crime, and perhaps seeks refuge from his fears in self-destruc- 
tion. It is more difficult to escape from the latter than from 
the former class of illusions, as the appeal lies not from one 
(«/’) Schurmayer, Gericlit. Mod. § 554. 
(2) See, on this subject, remarks by Dr. Sigmond, Jour, of Psychol. Med. 
p. 585, 1848. 
(a) Taylor’s Medical Jurisprudence, p. 552. 
720 BOOK I.] 
DELUSIONS AND HALLUCINATIONS. 
[§ 732 
sense to another, but to a more refined process of thought and 
reflection, and the examination of evidence.”(6) 
§ 730. A writer of much acuteness and philosophical breadth, 
Dr. Hammond, of New York, has, as has already been noticed,(c) 
distinguished illusions and hallucinations on the one side, from 
delusions on the other, by declaring that of the falsity of the 
first (illusions and hallucinations), the patient may or may 
not be conscious, but that of the falsity of the latter he is un- 
conscious. The difficulty as to this distinction is that illu- 
sions and delusions are often used convertibly; and that, in 
addition, the distinction amounts to no more than saying that 
as to illusions and hallucinations the patient is open to reason, 
and is therefore sane; but that as to delusions he is not open 
to reason, and therefore is insane. But this is in conflict with 
the almost universal practice of medical psychologists, which 
is to speak of illusions and hallucinations as among the symp- 
toms of insanity. 
§ 731. A question of much medico-legal importance has 
arisen in this connection as to whether insane illusions or hal- 
lucinations (“ delusions” as they would be called if the nomen- 
clature above mentioned be adopted) can coexist with general 
mental soundness. If the observations above mentioned be 
correct, the question is to be answered promptly in the nega- 
tive. He who conceives a tree to be a man, or a friendly 
neighbor to be a robber, and who cannot be reasoned out of 
such conceptions, is insane. The degree of his insanity, how- 
ever, and the extent to which it divests him of responsibility, 
is a question for distinct consideration. He may be insane, and 
yet, as to acts not the product of insanity, he may, as has been 
shown, be responsible.^) 
§ 732. The difficulty here, so far as it does not rest on a 
confusion of terms, arises from the erroneous assumption that 
perception is an independent factor, capable of independent 
disease, somewhat in the same way that a mirror in a chamber 
may be broken, without the chamber being in any other way 
disturbed. But the perceptive powers are not a mere mirror. 
(&) Psychological Inquiries, etc., p. 79. London, 1854. 
(c) See supra, § 312. ((Z) Supra, §§ 34-60; 145. 
yol. i.—46 
721 § 733] 
MENTAL UNSOUNDNESS. 
[book i. 
“All perception or knowledge,” says Mr. Bain(e), very accu- 
rately, “ implies mind. To perceive is an act of mind; what- 
ever we may suppose the thing to be, we cannot divorce it 
from the percipient mind.” In sight, for instance, we have 
the action of light on the retina, accompanied by a series of 
nerve currents and other influences; but the “ mental pheno- 
menon is the feeling, or subject state accompanying these,” 
and “ the word (sight) is properly applicable, and should be 
confined in its application, to the strictly mental act.” A 
child, for instance, sees the moon, and conceives it to be within 
its reach. Here the hallucination rests exclusively on defect 
of reason; in other words, there is no memory to recall the 
fact of failures to grasp the moon in particular or objects in 
general which present themselves to the eye as distant. The 
same illusion might occur in the fatuous imbecility of old age. 
How where this illusion cannot be reasoned away—when it 
would be in vain for us to say, “try to seize the moon, and you 
will find it escapes your grasp,” or “objects having the ap- 
pearance of distance, as you will learn through memory and 
association, are proportionally removed from your reach”—if 
the person whom we address is incapable of thus reasoning, then 
he is mentally unsound. But it is absurd to speak of this un- 
soundness being confined to this particular illusion. It is a 
general mental unsoundness—i. e., it springs from the weakness 
of the functions of memory and of association, which are 
among the prime factors of reason.(/) And yet, at the same 
time, this unsoundness may not reach so far as to require the 
sequestration of the party, and the declaration of his irre- 
sponsibility.^) 
§ 733. So, also, with regard to the sense of sound. A per- 
son of weak nervous system is wounded by a gunshot, and 
ever afterwards associates a noise like that of the report of a 
gun with severe personal pain. If you cannot reason this 
away by experiment or explanation, then the patient’s mind 
(e) Bain’s Mental ancl Moral Science, p. 196. London, 1868. 
(/) See swpra, § 49-60. Tliis argument may be supported by the high 
authority of Griesinger, Ment. Path. § 47. 
Cg) Supra, §§ 46-60, 145. 
722 BOOK I.] 
DELUSIONS AND HALLUCINATIONS. 
[§ 735 
is unsound. He is not, it is true, “ insane” in the sense of 
being subject to a single insane illusion. His mind is unsound 
because his powers of memory and association are so perverted 
and disordered that he treats a single instance of association 
as a general law. The derangement arises from the debility 
of an organ essential to all complete mental judgments. On 
the same reasoning may be explained the cases of sleep-drunk- 
enness which have been already noticed. A hunter in his 
sleep hears a noise like a shot; he springs up and shoots the 
supposed assailant. He is judged irresponsible, not because he 
is the victim of a particular insane illusion, but because, in 
the condition of trance-like dream in which he was at the 
time of the event, his reason was suspended, and his mind, as 
such, not only in this, but as to all other processes involving 
memory, association, and discrimination, was deranged. 
§ 734. So, also, with the common monomaniac delusion of 
persecution. A man believes himself .to be persecuted by all 
mankind; that he is the victim of a conspiracy to poison; 
that he is beset by evil spirits in the shape of men. There is, 
however, no distinctive, collateral, independent mania about 
this, capable of existing when the mind itself is sound. The 
mind, in such a case, is unsound. The unsoundness, it is true, 
may only exhibit itself in this particular method in the same 
way that an irritable temper discharges itself on some par- 
ticular object. The cause, in the first case, is in the mental 
derangement which, when one illusion is dispelled, seizes on 
another, just as the irritable temper pounces on object after 
object on which it may successively vent itself while the ill- 
humor lasts. 
Here, then, arises the interesting question, when do the 
powers of memory, of association, of discrimination, become 
so enfeebled or perverted as to constitute incompetency and, 
irresponsibility ? 
§ 735. Psychologists have failed in supplying any such 
uniform test. The question must be determined concretely 
to each case by the history, conduct, examination of the patient 
himself. It may, however, be generally said that when a de- 
lusion is transient; when it is capable of being repressed; when 
the patient takes steps which show that he is conscious of its 
723 § 737] 
MENTAL UNSOUNDNESS. 
[book i. 
unreality; when it can be dispelled by the force of counter 
vailing considerations; then mental unsoundness is not to be 
assumed. It is otherwise when the delusion, however it may 
be concealed, is, on the one side, in itself palpably absurd, and 
yet, on the other side, is cherished by the patient as a radical 
belief.(A) 
§ 736. If such be the case, then, as to acts which are the 
products of such delusion, the patient is to be regarded as in- 
competent and irresponsible.(z) And as to acts not the result 
of such delusions, his mind may be regarded as so enfeebled 
or confused as to subject him only to a diminished criminal 
responsibility.^/) 
§ 737. “ The most general and most important sensitive ano- 
malies in states of mental disease,” says Griesinger, “ are the 
hallucinations and illusions. By hallucinations we understand 
(h) An Esop, to adopt an. illustration of Dr. Liman, fancies himself an 
Adonis, or a Xantippe thinks proper to regard herself as a woman of soft and 
tender beauty. Now such assumptions flatly contradict the truth, as it is re- 
garded by the great body of mankind. People such as these are called 
“fools,” though no one thinks of locking them up in a mad-house. For 
“ Esop” is not a real believer in the delusion. If he is, why does he dye 
his hair ? And why does Xantippe paint her cheeks, and resort to so many 
devices to cover the reality of old age? Yet at the same time, as is further 
illustrated by this acute observer, it is not always easj'- to mark in them the 
point at which sane folly passes into insane folly. Thus a wise parsimony, 
by scarcely perceptible steps, may become avarice ; and avarice may over- 
step the limits of sanity, and, under the influence of insane illusions, refuse 
to eat, for fear of starvation. The only question in each case is, is there with 
the patient a delusion really insane, and if so, did the delusion produce the 
litigated act ? And this is to be determined according to general psycholo- 
gical and psychopatliical tests. And it has been well said by an eminent 
writer on this topic, Dr. Sander (cited, Liman’s Casper, p. 554), that in con- 
ducting the inquiry we are not to be so much governed by the specific fancy 
in question, or by this or that illusion, as by the patient’s original psycholo- 
gical state, by the cause and course of the disease, in short, by its development 
as a whole. “ For in such cases we must fall back on the development 
history of the concrete case.” 
See Les Lemons Cliniques de M. Falret, Leqons 3, 4, 5, 6, pp. 95, 185, Paris, 
1854; also Etudes Psychologiques, par L. F. G. Renaudin, chap. viii. p. 
388, Paris, 1854; and also Dr. Hammond’s Essay on McFarland’s Case, 4 
Hammond’s Journ. Psyc. Med. 449. 
(0 Supra, §§ 40-60, 145. ( j ) Supra, § 200. 
724 BOOK I.] 
DELUSIONS AND HALLUCINATIONS. 
[§ 737 
subjective sensorial images, which, however, are projected out- 
wards, and thereby become apparently objects and realities. 
By an illusion is meant the false interpretation of an external 
object. It is an hallucination when I see human forms while 
in reality no man is near, or hear a voice which has not spoken. 
It is an illusion when I take a bright cloud in the heavens for 
a fiery chariot, or when I believe that I see an old friend when 
a stranger walks into the room. In hallucination there is no 
external object, it is a false sensation; an illusion is a false 
construction, a transformation of a peripheral sensation. 
“ The motive to this sensation does not necessarily require 
to exist in the external world; it may also be within the 
special organism; therefore the false interpretations to which 
peripheral pains (neuralgic, rheumatic) are subject, are con- 
sidered illusions, as the idea of being pregnant, which pro- 
ceeds from unusual abdominal sensations, or that case men- 
tioned by Esquirol, in which a patient had pain in the knee, 
and kept striking it with the fist, calling out,‘Wait, you 
rascal, you shall not escape me!’ ”(k) 
“ The distinction between hallucinations and illusions was 
made by Esquirol. It ought to be maintained, although it 
cannot be adhered to with perfect exactness. 
“ In the senses of taste and cutaneous sensation especially 
the distinction is often impossible. In the other senses, too, 
the view of illusions as false judgments is, in many cases, too 
limited. They are, in the majority of cases, actual transfor- 
mations of impressions transmitted by the organs of sense, 
when, for example, a portrait on the wall appears to roll its 
eyes and walk out of the frame, or when the visage of an old 
woman appears to be young and beautiful. 
“ Here internal images are substituted for real perceptions; 
it is a mixture of hallucination and real sensorial perception; 
the latter becomes thereby transformed in the sense of the 
dominant ideas and frames of mind. We can also express the 
relation between them so; the hallucinations are either quite 
complete when they provide the entire object, or they are in- 
(&) Griesinger’s Mental Pathol., Syden. ed. (1867), § 52. 
725 § 737] 
MENTAL UNSOUNDNESS. 
[book i. 
complete (illusions) when to a real external object other quali- 
ties which it does not possess are attributed.”^) 
“Hallucinations,” continues Griesinger, “may occur in all 
the senses—in the senses of sight, hearing, smell, taste, and 
cutaneous sensibility. In individuals sometimes this, some- 
times that, frequently several, occasionally all, these various 
sensorial functions are atfected at the same time; the hallu- 
cinations are real sensations, not mere fancy. The patient 
really, and not merely,thinks that he hears, sees, and smells; 
and should we meet the sensorial delirium with arguments of 
reason, we generally receive answers as Leuret did from one 
of his patients:(m) ‘I hear voices because I hear them— 
how they originate I know not, but to me they are as distinct 
as your own voice; if I admit the reality of your words, you 
must also allow me to believe in the reality of those voices, as 
to me both are equally appreciable.’ 
“ Thus, in the opinion of the subject of the hallucination, his 
subjective sensitive perceptions have commonly the same reality 
as the objective perceptions presented by the external world, 
and to this very circumstance is in a great measure due the 
importance and danger of the phenomena. We are accus- 
tomed to trust our senses, to consider that as most true which 
(l) Gratiolet. 
Tlie following is given by Griesinger as the literature of sensorial delirium : 
Esquirol, several articles in Dictionnaire des Sciences Medicales, and Traite 
de 1’Alienation. Bayle, Mem. sur lesHallucinations, Revue M6dic., January, 
1825. Muller, Ueber pbantastiscbe Gesichtserscheinungen, Coblenz, 1826. 
Lelut, De la Folie Sensoriale, Gazette Med., 1888. Boid, Tkatsaclilicke 
Bemerkungen iiber Sinnestanscliungen, Friedrich’s Magazin, Sept. 17, 1831. 
Dietz, Ueber die Quelle der Sinnestansckungen, ibid., Heft 111, 1832. Leuret, 
Fragmens psychologiques, Paris, 1834. Bottex sur les Hallucinations, Lyon, 
1836. Marc, Geisteskrankkeiten, translated by Ideler, i. 1843. Hagen, die 
Sinnestanscliungen, Liepzig, 1837. Baillarger, in Arcliiv Gener. 1842-3. 
Patterson, Annal. Med. Psycholog., Mars, 1844. Likewise the writings of 
Arnold, Reil, Haslam, Hoffbauer, Neumann, Friedrich, Jessen, Archam- 
bault in Ellis’s Traite, p. 180, segg., etc. Sinogowitz, Die Geistesstorungen, 
Berlin, 1843. Micliea, Du Delire des Sensations, Paris, 1846. Baillarger, 
Des Hallucinations, Mem. de l’Acad. de Med., tome 12e, Paris, 1846. Brierre, 
Des Hallucinations, Paris, 1847 (2d edition, 1853). Leubuscher, Ueber die 
Ensteliung der Sinnestansckungen, Berlin, 1852. 
(m) Fragments, p. 203. 
726 BOOK I.] 
DELUSIONS AND HALLUCINATIONS. 
[§ 737 
we ourselves see or toucli; he in whom false sensorial percep- 
tions are substituted for those which are true, and the material 
of his ideas and their combination thereby falsified, enters a 
new sphere of appearances and of falsehood. 
“ He cannot distinguish them from the objective reality, ac- 
cording to which he regulates his thoughts and acts, and in 
general it cannot be forced on him by the opinion of a stranger; 
he is compelled to follow the deception, because to him it has 
the force of sensorial conviction, and not only are the most 
crazy and stupid ideas awakened and maintained in him, but 
very often the most dangerous misdeeds result from the hallu- 
cinations. 
“ The subject of hallucinations may, at any moment, be in- 
cited by voices or visions to inflict violence on himself or 
others; for example, to murder in consequence of having had 
a command from God to deeds of vengeance, for abusive lan- 
guage which he has heard, etc. 
“ The majority also of the crimes committed by the insane 
depend on hallucinations, a circumstance which, from the great 
frequency of hallucinations, is not to be wondered at. Ac- 
cording to Esquirol, 80 in every 100 patients have hallucina- 
tions ; Falret(n) gives, of course, a much lower proportion— 
about a third of the number of patients. 
“ Hallucinations are not entirely confined to states of mental 
disease. It is well known that in dreams—to which we shall 
again refer—inebriation, vertigo, and analogous states, phan- 
tasms of sight are produced. But, even exclusive of these 
states, hallucinations are not uncommon in persons not insane. 
The well-known case of Hicolai, the fact before quoted from 
Bonnet, several of the cases mentioned by Patterson, all reli- 
gious visions, etc., are examples of this. 
“ Hothing would be more erroneous than to consider a man 
to be mentally diseased because he had hallucinations. The 
most extended experience shows rather that such phenomena 
occur in the lives of very distinguished and highly intellectual 
men, of the most different dispositions and various casts of 
(ra) Lee. Clin, de Med. Ment., p. 151. Paris, 1854. 
727 § 737] 
MENTAL UNSOUNDNESS. 
[BOOK I. 
mind, but, especially, in those of warm and powerful imagina- 
tion. 
“ Tasso, who, in presence of Manco, carried on a long con- 
versation with his protecting spirit; Goethe’s well-known 
(blue-gray) vision, and his ideal flowers with buds ; Sir Walter 
Scott’s apparition, in which his dead friend Byron stood be- 
fore him in the folds of a curtain; Jean Paul, who saw the 
head of a little girl looking down from the window; Benre- 
nuto Cellini’s vision of the sun, may serve as an example from 
the life of artists. Spinoza, Pascal, had hallucinations; Van 
Helmont saw his own soul in the form of a light with a human 
countenance; Andral tells that he himself had an hallucina- 
tion of sight, and Leuret that he has experienced a phantasm 
of hearing. 
“Indeed, judging from what we have heard and observed 
on this subject, hallucinations doubtless occur also in men of 
very average minds, not as rare, but as frequently overlooked, 
phenomena. 
“ The man who is mentally healthy either views such hallu- 
cinations with calmness and consideration, because he recog- 
nizes them as originating subjectively (Nicolai and others), or 
he believes in their reality, either because his reflection does 
not possess the premises necessary to judge of these phenomena, 
because superstition, sluggishness of thought, love of the mar- 
vellous, obscure and restrict their correct interpretation; or 
because certain dispositions, passions, and emotions (fear, anger, 
joy, etc.), suspend reflection and calm consideration; or even 
because they are borne out by hallucinations of several senses, 
of sight, of hearing, of cutaneous sensibility, and thus the 
means of rectifying one of the errors is itself falsified.”(o) 
“We shall here mention a few examples of hallucinations 
occurring in individuals not insane. 
“ Mr. II , one day, was reading Commine’s ‘ History of 
Burgundy.’ Looking towards the window, he saw a skull 
lying on the chair; he thought of calling out to inquire who 
had put it there, but he first went towards it in order to ex- 
amine it. As he put out his hand to grasp it, it disappeared. 
(o) Griesinger’s Mental Patliol., § 55. Syden. ed. (1867). 
728 BOOK I.] • 
DELUSIONS AND HALLUCINATIONS. 
729 
lie was terrified almost to fainting. Fourteen days afterwards 
lie again saw, in a lecture-room in the college at Edinburgh, a 
skull lying on the desk, and said to his neighbor,4 What will 
the professor do with a skull to-day ?’ Another time Mr. 
II was present at the post-mortem examination of a friend. 
Three months after, when going to bed, he found an invitation 
to the funeral of the mother of his friend lying on the table. 
Scarcely had he put out the light when he felt himself seized 
by the arm below the shoulder, and it pressed strongly against 
his side. He sought to free himself, and cried,4 Let go my 
armhe then heard distinctly a voice, 4 Be not afraid.’ He 
immediately answered, 4 Allow me to strike a light.’ The 
arm was then set free. II rose, but felt violent vertigo 
and great weakness. When he had lighted a lamp he saw the 
countenance of his friend at the door, but it was indistinct, as 
if a veil were over it. As Mr. II approached, the figure 
withdrew; he followed it down the steps to the outer door, 
where he fell in a fainting fit. He was afterwards seized with 
violent pain over the eyebrows, fever, and sleeplessness. 
44 A Southerner, in the prime of life and in perfect health, 
paid a visit one day to a neighbor. As he was entering the 
door, there passed before him the figure of a woman clothed 
in white, and immediately a second, then a third. He stretched 
out his hand to seize the last, and it disappeared. Shortly 
after, the man was walking through a park in which he saw 
several asses grazing; he wished to pat one of them on the 
back, and was much surprised when he found that he could 
feel nothing ; they still remained before his eyes, and he several 
times in vain repeated the attempt to touch them. 
44 The following case affords a striking example of numerous 
hallucinations and illusions in a lunatic, and shows how false 
ideas originate from them:—(o1) 
44 Once there was a storm, but such a storm as I have never 
seen before nor since. The clouds appeared to me to be waves 
of the sea elevated into the air, where they fought with each 
other, while an enemy’s fleet commenced a mortal combat with 
(o1) Bergmann, “Remarks of a Person, who had been Insane, on his 
Morbid Mental State,” Friedreich’s Archiv fiir Psychologie, 1834, i. p. 15. 
729 § 737] 
MENTAL UNSOUNDNESS. 
• [book i. 
the inhabitants; this was the decisive moment for the salva- 
tion of Holland, which appeared to me to be already com- 
pletely lost. I heard no thunder, saw no lightning, but saw 
the flashes of cannon and heard their loud reports rapidly 
succeeding each other. Afterwards, on emptying my linen 
and clothes out of my box, I saw an extraordinary quantity, 
and also a tablecover which had been left behind at C . 
As, on another day, many things were wanting which I be- 
lieved I had in my hands, I thought they must have been 
stolen. One evening I lay in bed following with my eyes the 
maid-servant, whom I supposed to be a ghost; then the tallow 
of the candle began to run very fast; I saw the tallow, how- 
ever, run not from the candle, but from a hole in the wall, 
and, indeed, in such a quantity as to resemble a constant 
stream. I then declared, with a scream, that I would be suf- 
focated. Hereupon I fell into the delusion that the air was 
poisoned, and from that moment I constantly felt a sweetish 
disagreeable odor, which I tasted in all food, and formed 
the opinion that the beef brought to me was human flesh. 
The buildings which I could see from my room appeared to 
be a small clay pipe, which evidently projected above out of 
the chimney, and therefore engendered in me the frightful 
idea that this pipe was the only place by wdiich air could enter. 
Therefore, all who entered were supposed by me to be doomed 
to suffocation. ”(o2) 
(o2) Hallucinations of sight.—“According to Gratiolet, there may be dis- 
tinguished the following leading varieties in hallucinations of sight: (1) Such 
as appear in darkness by night, on shutting the eyes, or in the blind. They 
are generally bright, even fiery, but somewhat pale ; the forms are very fre- 
quently those of birds, hideous faces, etc., and they have a tendency to move 
to and fro; (2) Those seen in dim light or in the twilight are frequently 
white figures which appear to take a position in the room at an appreciable 
distance, and do not move to and fro; (3) Those seen by daylight; they 
appear generally as perfect realities. This, however, I cannot corroborate. 
From many descriptions of hallucinations, I assume that they are also fre- 
quently indistinct and shadow-like.”—Griesinger’s Mental Pathol., Syden. ed. 
(1867) § 58. 
Hallucinations of hearing.—Hallucinations of hearing are not quite so 
common as those of sight. They are most general in melancholia and 
chronic mania, in which they are occasionally the cause of an attack of mania. 
730 BOOK I.] 
DELUSIONS AND HALLUCINATIONS. 
[§ 738 
§ 738. Delusion may spread in such a way as to cover the 
whole surface of the mind, leaving no sound perception un- 
touched. Dr. Rush, in the following report given by him of 
the conversation of a patient laboring under this phase, very 
happily illustrates this incoherence, and at the same time the 
occasional point by which its intellectual operations are dis- 
tinguished: “No man can serve two masters. I am Philip, 
King of Macedonia, lawful son of Mary Queen of Scots, born 
in Philadelphia. I have been happy enough ever since I have 
seen General "Washington with a silk handkerchief in High 
Street. Money commands sublunary things, and makes the 
mare go; it will buy salt mackerel made of ten-penny nails. 
Enjoyment is the happiness of virtue. Yesterday cannot be 
recalled. I can only walk in the night-time when I can eat 
pudding enough. I shall be eight years old to-morrow. They 
say R. W. is in partnership with J. W. I believe they are 
about as good as people in common—not better, only on certain 
occasions, when, for instance, a man wants to buy chincopins, 
and to import salt to feed pigs. Tanned leather was imported 
first by lawyers. Morality with virtue is like vice not corrected. 
L. B. came to your house and stole a coffee-pot, in the twenty- 
fourth year of his majesty’s reign. Plum-pudding and Irish 
potatoes make a very good dinner. Nothing in man is com- 
prehensible in it. Born in Philadelphia. Our forefathers 
They are generally indications of a more serious, less curable, affection of 
the brain, and are often latent until certain false ideas have become fully 
fixed. They have been with special frequency observed in connection with 
diseases of the abdomen and genital organs. The anatomical signification of 
this fact would, if it were known, perhaps advance our knowledge on this 
point (connection with the cerebellum). The voices appear to come some- 
times from a distance ; sometimes from the neighborhood ; sometimes from 
the earth, the walls, the furniture, or even from the patient’s own body. 
Sometimes they continue so persistently that the patients fall into a state of 
desperation. 
“Thosewho have hallucinations of hearing have also more nonsensical 
ideas than generally result from the other phantasms, and they often exhibit the 
most peculiar and grotesque demeanor. They reply to the voices by friendly 
or threatening gestures or words. They often become suddenly quiet and 
attentive, in order to listen, and then commit the oddest and most dangerous 
acts which the voices have recommended.”—Griesinger’s Mental Pathol., 
Syden. ed. (1867)§ 59. 
731 [book I. 
§ 739] 
MENTAL UNSOUNDNESS. 
were better to us than our children, because they were chosen 
for their honesty, truth, virtue, and innocence. The Queen’s 
broad R originated from a British forty-tAvo pounder, which 
makes too loud a report for me. I have no more to say. I 
am thankful I am no Avorse this season, and that I am sound 
in mind and memory, and could steer a ship at sea, but am 
afraid of the tiller. * * * * Son of Mary Queen of Scots. 
Born in Philadelphia. Born in Philadelphia. King of Mace- 
donia.”^) 
And Shakspeare gives, with equal truth, the folioAving 
soliloquy of a madman, in whohi the depressing rather than, 
the elating phrase is exhibited:— 
“ Who gives anything to poor Tom, 
Whom the foul fiend has led through fire, 
And through flame, through ford and whirlpool, 
Over bog and quagmire, that hath laid 
Knives under his pillow, and halters in his pew, 
Set rats-bane by his porridge, and made him to 
Ride upon a bay trotting horse over four-inch 
Bridges, and to course his own shadow for a traitor.” 
And Lear, in language still more expressive of misery, thus 
complains:— 
“ I am bound 
Upon a wheel of fire that mine own tears 
Do scald like molten lead.” 
§ 739. Hallucinations involving a belief that the patient has 
been transformed into various species of animals have been at 
times almost epidemic. Analogous to these is the belief that 
worms, frogs, or snakes have taken up their abode in the head 
or stomach, which consume the brain or entrails. Men have 
fancied themselves pregnant, and imagined themselves shadoAvs 
or corpses, or to be constructed of glass, butter, or wax. At 
one time the belief in a transformation into wolves or other 
wild animals became so prevalent as to acquire a title to itself 
(Lycanthropia). In cases of this last phase the disease became 
so uncontrollable as to impel its victim to a close imitation of 
the Avild animal itself, falling upon other men and animals, and 
snapping at and biting them. Andral relates a case of a child 
(p) Rusli on tlie Mind, pp. 242, 243. 
732 BOOK I.] 
DELUSIONS AND HALLUCINATIONS. 
[§ 740 
of fourteen years, who tore wildly about the fields, biting 
other children that came in its way, and producing the greatest 
consternation in the neighborhood.^) 
§ 740. Griesinger thus speaks of hallucinations of loss of 
identity: “ The patients renounce their former personality, and 
consider themselves sometimes animals (wolves, oxen, etc.), 
sometimes historic individuals (Napoleon). Sometimes the 
whole body is considered dead, or as not really theirs, or as 
composed entirely of inanimate substances, as wood, glass, 
wax, butter, etc. At other times the body is merely felt to be 
extraordinarily heavy, or to have acquired a very great circum- 
ference, etc. 
“ On the other hand, these anomalies of the general sensation 
are sometimes local, confined to certain parts of the organism. 
The patient supposes that certain of his members are wanting, 
or that they are not connected to his body in the way they 
used to be. For example, he thinks that he no longer has a 
head, that one of his arms or legs is petrified or made of glass, 
or he feels as if a certain part were uncommonly large, and the 
nose in particular is, in many cases, the object of this illu- 
sion. 
“There are, besides, observed in the insane, as more transient 
states, sensations familiar to many healthy persons in dreaming, 
of flying high in the air, of being precipitated from a height, 
or of general giddiness. Sometimes a veritable aura is felt 
before an attack, as it is before an epileptic seizure. 
“ The seat and the more immediate causes of these anomalies 
of the general sensation are difficult to understand. In several 
cases, indeed, they depend—for example, the feeling of absence 
of a part of the body—on evident anaesthesia, or more fre- 
quently an analgesia of the organ. At other times, however, 
the peripheral sensibility of the cutaneous surface, and ‘per- 
haps even the sensibility to pain, is fully maintained, and 
obscure modifications of the muscular sensibility, which like- 
wise appear to play an important part in ordinary dreaming, 
(2) Cours de Patholog. Interne, tomeiii., Paris, 1836, p. 186. The curious 
will find a very interesting disquisition on this point in Wierus’s work, De 
Praestigiis Daemonum, lib. iv. c. 23. 
733 § 740] 
MENTAL UNSOUNDNESS. 
[book i. 
may be the original disorder which the explanatory reflection 
lays hold of to form delirious conceptions. The transformation 
into animals appears to be much more related to the mind in 
its origin, and the basis of this false idea may depend on the 
appearance and influence of certain instincts peculiar to certain 
species of animals, as the cruelty and ferocity of the wolf. But 
here also a marked deviation from the normal general sensation 
is always necessary to the full development of the ideal meta- 
morphosis.^) 
“ Examples of insane persons considering themselves dead, 
and not recognizing their body as their own, are numerous. 
Esquirol mentions that, in a woman who believed that the 
devil had carried away her body, the surface of the skin was 
completely insensible. 
“ This was also the case in the following example from 
Foville. A soldier considered that he had been dead since the 
battle of Austerlitz, in which he was severely wounded. When 
any one asked how he was he answered,4 You ask how father 
Lambert is, but father Lambert is no more, he was carried off 
by a cannon ball at Austerlitz. That which you now see is 
not him, but merely a clumsy machine made to resemble him ; 
pray make another.’ When he spoke of himself he never 
said I, but always it. The skin is insensible, and, several times, 
attacks of various kinds of immobility and insensibility have 
occurred. A young epileptic, who had also numerous hallu- 
cinations of smell and of taste, sometimes felt his whole body of 
such an extraordinary weight that he could scarcely stand 
upright, at other times of such lightness that it seemed as if 
he rose from the floor and flew; besides his body and his limbs 
(r) Griesinger’s Mental Pathol. Syden. ed. (1867) § 49. 
Leuret (Fragm. Psychol, sur la Folie, Paris, 1834, p. 101) has made an 
interesting collection of several old examples of the so-called Lycanthropia, 
and several cases of more recent date of insane persons wandering in the 
woods and carrying off and even killing children, from a fierce instinct to 
murder. Wier narrates an example of a man from Padua who, in the year 
1541, believed himself transformed into a wolf, and, on the open plain, attacked 
and slaughtered those whom he met. “ I am really a wolf,” said he, “ and 
the reason why my skin is not hairy like that of a wolf is that it is reversed 
and the hairs are inside.” To convince himself of this he made incisions in 
his body and cut his legs and arms, so that he died of the wounds. 
734 BOOK I.] 
DELUSIONS AND HALLUCINATIONS. 
[§ 741 
seemed to him so enormously enlarged that it was impossible 
for him to pass through a door.” 
“ To such states there are also analogues in acute diseases. A 
medical friend has frequently told me that he, in even slight 
febrile affections, has always the sensation of remarkable en- 
largement of the limbs. 
“ A convalescent from fever believed that he was really two 
persons, one of whom lay in bed while the other walked about. 
Although he had little or no appetite, yet he ate a great deal, 
because he had to nourish two bodies.(ra) 
“Patients with paralysis of sensation of one-half of the 
body have sometimes the idea that another person, or even a 
corpse, lies beside them in bed.(r2) Such false opinions belong 
to the so-called illusions, soon to be considered. 
“ The sensation of flying in dreams appears to be due to 
acceleration of the inspiratory movements, and that of being 
drawn from a height to their becoming slower (Gratiolet); 
corresponding images are associated with these. 
“ All considerable alterations of the common sensation are 
always amongst the most important elements of mental disease. 
"When this general basis of the bodily sensations is falsified, 
corresponding false ideas are formed with extreme facility. 
These anomalies are always to be specially investigated, as 
they occasionally furnish indications for therapeutical treat- 
ment.”^) 
§ 741. According to Hagen,(t) the cause of the delusions of 
the senses is either a mere physical stimulus, which, acting 
upon the fountain-heads of the sensational nerves in the brain, 
produces eccentric sensations, and induces the individual to 
incorporate his sensations into an image, in which case it will 
depend upon the particular circumstances of the case, especially 
on the mental and moral condition of the individual, whether 
or not such apparitions are believed to be genuine. And upon 
another hypothesis, suggested by the same author, the disease 
(?’>) Leuret, loc. cit., p. 95. 
(r2) Bouilland, Traite de l’Enceplialite, Paris, 1825, p. 64. 
(s) Ibid. 
(t) Compare "Wagner’s Ilandworterbucli der Physiologie, yol. ii. p. 811. 
735 § 742] 
MENTAL UNSOUNDNESS. 
[BOOK I. 
is only a strong morbid susceptibility of the brain to eccentric 
sensations, with which some fancy or other comes into such a 
collision as to act as the stimulating cause of a paroxysm, bring- 
ing, at the same time, a complete phantom before the external 
sense, just as, in cases of convulsive diseases, St. Vitus’s dance, 
etc., an intended slight motion may bring a convulsion into 
that particular system of muscles. Great care must be taken, 
however, not to include under this head what is not really a 
delusion of the senses. If, for instance, a madman takes a 
person or a black cat for the devil, there is no delusion of the 
senses. On the contrary, in supposing the devil to have 
assumed such a shape, the maniac only directs his madness to 
an object of which, in itself, he has a correct perception. De- 
lusions also, we are admonished by Schiirmayer, must not be 
mistaken for confusion of the senses, which consists in an entire 
obstruction of the conceptions, an incapacity to obtain adequate 
apperceptions, and sometimes in an entire want of objective 
consciousness and recollection. 
§ 742. The following interesting illustration of partial de- 
lusion is given by Dr. Mayo: “ In a case to which I was called 
in by Dr. Monro, a few years ago, it was our painful duty to 
resist the liberation of a patient, an old lady, whose confine- 
ment under certificates had continued for sixteen years. For 
six years she was described as having been in a state, first of 
acute, and then chronic mania. For many years, we learned, 
that she had regained the power of conversing consecutively 
and sensibly, indeed without the smallest evidence of inco- 
herent or irrational remark, and such appeared to us her 
present state. The objections which existed to her being then 
considered sane, if she had been insane up to the time we saw 
her, on the ground of her advanced age, weighed on our 
minds, but seemed insufficient. The evidence of her attend- 
ants, who considered her still insane, on the ground of occa- 
sional outbreaks of temper, was that of interested witnesses. 
She was a patient in chancery, and the visiting physicians had 
become favorably disposed to her enlargement, as a sound- 
minded person. Now, the question was in this instance de- 
termined in our minds by a discovery of a very remarkable 
notional delusion which held its ground in her mind. In a 
736 BOOK I.] 
DELUSIONS AND HALLUCINATIONS. 
737 
set of drawers in this lady’s bedroom, and in certain trunks 
there, to which we were conducted without her knowledge, we 
witnessed a large and very heterogeneous and dirty collection 
(dirtiness had been a symptom of her insane state), consisting 
of old bottles, broken cups and saucers, brass knobs, bits of 
old string, shreds of linen and cloth, small bundles of wood, 
such as light fires, pieces having been apparently picked up 
and tied together, a cup containing dirty food of the most 
disgusting appearance, which had evidently been long there, 
bits of valueless stones, coals, nails, etc. This accumulation, 
which could not have been extemporized by the attendants to 
make out a case, and of which accordingly the patient must 
have been long aware, would have occasioned strong doubts 
as to her sanity, even if no prior grounds of suspicion had 
existed ; but carefully preserved by one who up to a recent 
date had been so far suspected of insanity that she had not 
been set free by the visiting commissioners, who was in her 
seventy-first year, and therefore the less likely to have obtained 
a cure, it became, in the opinion of Dr. Monro and myself, a 
conclusive ground for resisting this lady’s immediate enlarge- 
ment.”^) 
§ 743. Particular hallucinations are classified by Abercrombie 
under the following heads:— 
“ 1. Propensities of character, which had been kept under 
restraint by reason or by external circumstances ; or old habits, 
which had been subdued or restrained, developing themselves 
without control, and leading the mind into trains of fancies 
arising out of them. Thus, a man of an aspiring, ambitious 
character may imagine himself a king or great personage; 
while in a man of a timid, suspicious disposition the mind 
may fix upon some supposed injury, or loss either of property 
or reputation. 
“ 2. Old associations recalled into the mind, and mixed up 
perhaps with more recent occurrences, in the same manner as 
we often see in dreaming. A lady, mentioned by Dr. Gooch, 
who became insane in consequence of an alarm from a house 
(u) Mayo on Medical Testimony in Lunacy, pp. 33, 34. See, however, Dr. 
Storer’s remarks in his “Insanity in Women,” p. 120. 
737 
YOL. I.—47 § 743] 
MENTAL UNSOUNDNESS. 
[book i. 
on fire in her neighborhood, imagined that she was the Virgin 
Mary, and had a luminous halo around her head. 
“ 8. Visions of the imagination which have formerly been 
indulged in, of that kind which we call waking dreams, or 
castle-building, recurring to the mind in this condition, and 
now believed to have a real existence, I have been able to 
trace to this source of the hallucination. In one case, for ex- 
ample, it turned upon an office to which the individual im- 
agined he had been appointed; and it was impossible to 
persuade him to the contrary, or even that the office was not 
vacant. He afterwards acknowledged that his fancy had, 
at various times, been fixed upon that appointment, though 
there were no circumstances that warranted him in entertain- 
ing any expectation of it. In a man, mentioned by Hr. 
Morison, the hallucination turned upon circumstances which 
had been mentioned when his fortune was told by a gypsy. 
“ 4. Bodily feelings giving rise to trains of associations, in 
the same extravagant manner as in dreaming. A man, men- 
tioned by Dr. Rush, imagined that he had a Caff re in his 
stomach, who had got in at the Cape of Good Hope, and had 
occasioned him a constant uneasiness ever since. In such a 
case, it is probable, that there had been some fixed or frequent 
uneasy feeling at the stomach, and that, about the commence- 
ment of his complaint, he had been strongly impressed by 
some transaction in which a Caffre was concerned. 
“ 5. There seems reason to believe that the hallucinations of 
the insane are often influenced by a certain sense of the new 
and singular state in which their mental powers really are, and 
a certain feeling, though confused and ill-defined, of the loss 
of that power over their mental processes which they possessed 
when in health.’’(v) 
The law with regard to delusions and hallucinations has 
been discussed in prior sections.(w) 
(v) Intellect. Pow. 255, 256. 
738 
(w) Supra, §§ 34-60 ; 125-146. BOOK I.] 
LUCID INTERVALS. 
[§ 745 
K. Mental unsoundness as connected with lucid intervals. 
§ 744. So far as concerns the legal relations of this topic, it 
has been shown(x) that the law recognizes the possibility of 
lucid intervals in insanity (always, however, to be positively 
and affirmatively shown) during which the patient is to be 
viewed as capable, when acting independently, of certain 
business and testamentary acts, and of assuming at least a 
modified penal responsibility. It must be kept in mind, how- 
ever, that by many eminent psychological physicians, the pos- 
sibility of truly lucid intervals is denied. 
§ 745. As a leading authority of this school may be men- 
tioned Renaudin, from whose argument the following is 
condensed:— 
Lucid intervals is the name ordinarily given to the condition 
in which the insane person is placed at the end of a strong 
delirious excitement, or when he awakes from a profound 
stupor. 
We are generally led to believe the existence of a lucid in- 
terval when delirious ideas no longer manifest themselves, and 
when the insane person shows himself accessible to other pre- 
occupations, and thus appears to enjoy the full amount of 
moral liberty allowed to him. 
It has been already said that the approach of insanity is 
rarely sudden, and that, being based in some respect upon a 
natural or acquired predisposition, it is preceded by a period 
of incubation, that paves the way for a manifestation of the 
disorder often long before its actual appearance. When a re- 
trospective examination of the antecedents of the disease is 
made, a proof is found of the latent advances which insanity 
makes. 
But under this apparent reason is concealed a disorder 
which makes a sensible progression every day. Irritability is 
developed; the regimen is irregular; the affective sentiments 
are changed or perverted; everything has become an object of 
contrariety ; delirious convictions are organized upon the per- 
ceptive errors every day more numerous; and finally insanity 
{ x) Supra, §§ 61-64. 
739 § 745] 
MENTAL UNSOUNDNESS. 
[book I. 
shows itself in a critical excitement, the more decided as the 
lesion of sensibility has become more complete, and as the 
incubation is marked by a more or less concentrated struggle. 
The patient is then isolated; irritating causes are removed, and 
immediately the over-excitement diminishes ; a calmness suc- 
ceeds. This transient remission, however, ceases as soon as the 
unhealthy influence regains its# empire, and we then see that 
that which was called a lucid interval was, in fact, but a tran- 
sient remission. 
Continuity is essentially the characteristic of monomania 
and lypomania. Either the insane person, by a convalescence, 
advances to a complete cure, or he still remains affected with 
the original type. Every intermediate situation is inadmis- 
sible, except when an accidental affection, causing a kind of 
metastasis, for the moment suspends or masks the madness. 
"Whenever it is not a true crisis, it only causes a fleeting 
remission of the symptoms rather than of the pathological 
condition; and the physician assumes a serious responsibility 
when, simply on the face of this apparent calm, he conceives 
the possibility of the patient’s return to his family, where but 
too soon the causes will be found reunited that restore to 
insanity all its intensity. It is in not sufficiently resisting the 
desires of friends, that the physician paves the way for these 
returns, which are less relapses than the recrudescence of an 
uncured pathological state. 
But though, in an absolute diagnostic point of view, we 
reject the lucid interval—though, when the existence of men- 
tal unsoundness has been once shown, we do not admit that 
the remissions diminish irresponsibility—we still think that 
the deranged can perform certain acts with a perfect knowl- 
edge of cause, and can even exercise his intelligence, provided 
that he is placed under the influence of certain protecting con- 
ditions. The regulating discipline of an asylum tends greatly 
to this result, and therefore it is not astonishing if our insane 
can perform certain civil acts of a simple character, and may 
consent to a division of property, or even authorize a marriage. 
The legality of the act is essentially subordinate to a previous 
appreciation of the extent of the delirium at the time, and the 
relations existing between the action and the delirious concep- 
740 BOOK I.] 
LUCID INTERVALS. 
[§ 745 
tion. So, though not admitting the existence of a lucid 
interval, we still believe that the madman may be placed in a 
situation that permits him to appreciate the action demanded 
of him. In a criminal point of view, this distinction cannot 
be established, since the action is a logical consequence of the 
madness; and daily observation teaches us that it is during 
these moments of apparent sanity that the maniac meditates 
and prepares the most dangerous projects, as much against 
himself as against others. The ingenious combination of 
means that the lypomaniac uses in order to obtain his object is 
urged in vain as proof of lucidity, since the delirious concep- 
tions, whilst rendering the premises false, are far from always 
deranging the logical chain of the other intellectual operations. 
We should then consider the lypomaniac as an oppressed per- 
son who conspires against his enemies, and as he is the most 
feeble, he calls cunning to the aid of his legitimate means of 
defence. 
In the maniac, especially in the paroxysm, we observe a dis- 
ordered agitation, accompanied with such an amount of inco- 
herence that the affected person appears to be rather the sport 
of some strange motive power than the originator of this 
treme mobility. There are times when even this storm is 
dissipated as if by enchantment. Dissimulation becomes pos- 
sible for a certain time; the delirium is in some degree sus- 
pended, and we may be led to suppose a spontaneous return to 
reason. How often have we seen maniacs cease to rave during 
the questioning of the judge, and immediately afterwards re- 
commence their course of wanderings. 
The more vivid the excitement is, the more considerable is 
the expenditure of the vital forces; so that when it has lasted 
a certain time, a period of prostration arrives; but, allowing a 
remission of some somatic symptoms, still the incoherence of 
ideas is persistent with other symptoms. Sometimes the tran- 
sition is rapid; and then, above all, is it necessary to attribute 
the situation to its true causes, in order not to expose the ex- 
aminer to an error of diagnosis. 
Periodicity is generally observed in mania; and it is then 
that insanity of actions must be distinguished from insanity 
of ideas. Though often united, still they are sometimes iso- 
741 § 745] 
MENTAL UNSOUNDNESS. 
[BOOK i. 
lated from each other, or follow one another. It is on this 
account that the most extravagant acts sometimes correspond 
with a certain intellectual lucidity, which at the first glance 
may impose upon us; and it is then that we observe persons 
thus insane justify their actions by the most specious reason- 
ings. We must not, however, take this intellectual waking 
for a lucid interval; for, although masked, the delirium still 
continues. 
In other cases, the madness is less intense. All excitement 
has disappeared, and the insane person answers all our questions 
so reasonably as to lead us to infer the existence of a lucid 
interval; but the illusion is soon destroyed when, in pushing 
our examination, we weary him with questions: he becomes 
agitated; loses the thread of his ideas; becomes more and 
more incoherent, and so proves to us that he has had what 
scarcely might he called a transitory remission. 
There are cases where the periodicity appears more deter- 
mined, and where the conduct of the patient betrays no sign 
of the insanity which he formerly manifested. The lucid in- 
terval can perhaps he sometimes admitted under these circum- 
stances ; but it is still necessary to exercise some caution in 
regard to the value of these appearances. If the patient 
denies his situation ; if he refuses to acknowledge the principal 
acts which have characterized his paroxysm; if he seeks to 
attribute them to some foreign cause, it is a proof that the 
reason is not sound, and that a paroxysm is always imminent; 
and lucidity cannot be admitted, since errors of perception and 
judgment still exist. This observation especially applies to 
that kind of mania in which excessive irritability plays the 
principal part; where the remissions are irregular, and the 
paroxysms are shown under the influence of the slightest cause. 
We cannot, then, consider this momentary repdse of a perma- 
nent effect which is always ready to break out, as a lucid in- 
terval. We might say as much of the period of prostration 
following a period of strong excitement. 
When periodicity is complete, it is recognized at first by the 
appearance of the paroxysm, which has, in some measure, a 
critical termination. The lucid interval can then be admitted, 
if there is a complete contrast between the two situations, if 
742 BOOK I.] 
LUCID INTERVALS. 
[§ 745 
the patient appreciates them, and if the manifestation of each 
fit is shown by an approach which is always regular, and which 
is always produced under the influence of the same causes. It 
is, if we can thus express ourselves, a momentary cure, which 
is prolonged for a longer or shorter period of time, and which 
often finishes by becoming a complete one. 
Finally, when the affection passes to the chronic state, the 
patient raves less, because excitement fails him, and also be- 
cause his will is in want of a regulating force. We cannot 
consider this as a lucid interval where the patient is unable to 
act except when directed by another’s mind. When mania 
passes into dementia, the transition is sometimes shown by an 
apparent reawakening of reason, which is, as it were, its last 
glimmer. Generally it is the mobility of maniacs which is 
most favorable to the action of the derivations whose results 
sufficiently impose upon the superficial observer so as to cause 
him to admit the existence of a lucid interval. 
The stimulated attention of these patients fixes, for a mo- 
ment, this mobility, directs cunning towards the accomplish- 
ment of a project, where a personality is in play, and we are 
often surprised with the address shown in organizing a plan 
of escape. But, in spite of this incidental derivation, the 
maniacal temperament still remains the same, unless, indeed, 
this transitory action of the mind should become a crisis. 
Dementia, where the psychico-somatic existence is gradually 
extinguished, is a ruin in which a trace of a better time is 
sometimes found. If, occasionally, remembrances of the past 
show themselves, this apparent lucid interval is no more than 
a retrospective reasoning without actual application. When, 
instead of being the termination of the other forms, dementia 
is primitive or idiopathic, the lucid intervals can be sufficiently 
clearly drawn, and the diagnosis does not present as many 
difficulties as in the other forms. In fact, the demented can- 
not dissimulate; since, to do this, a reactive power would be 
necessary, which in him is entirely wanting. He cannot con- 
ceal his incapacity under the mask of an energy whose absence 
is the principal feature of his disease. More submissive than 
the others to somatic influences, he is sometimes a prey to an 
almost maniacal excitement; but if this is not critical, it forms 
743 § 746] 
MENTAL UNSOUNDNESS. 
[BOOK I. 
an expenditure of power resulting in pure loss, and making 
one more step in this period of prostration. In a word, if the 
man lives for a moment in the past, he is as nothing in the 
present; and it is under privilege of this restriction that a 
lucid interval, provoked by some foreign stimulant, but with- 
out root in an exhausted moral system, can be admitted. 
Hence we see that the lucid interval is of much rarer occur- 
rence in mental unsoundness than is generally thought. It is 
in mania that the periodicity of regular paroxysms permits us 
to admit it; but then, also, it is still necessary to guard against 
being imposed upon by a remission of excitement which is 
not that of the frenzied condition.(y) 
§ 746. The following suggestions are given by Ellinger, and 
repeated by Schiirmayer. As a general thing, there is no 
recovery from mental unsoundness which has been attended 
with permanent and general delusion: in the other forms such 
recovery sometimes, though very rarely, takes place suddenly, 
the consequence of strong excitement, as a sudden outburst of 
rage, or even in sleep, without any preceding physical or moral 
change. Its general development, however, is slow, being 
marked with a gradual lessening of the affective irritations, 
with an increased coherency and consequentiality of thought, 
with the return of the natural inclinations and appetites, of 
sleep and nourishment, and with a disappearance of the physi- 
cal anomalies. Sometimes, however, it advances with a more 
fluctuating step, agitated as it were with mental tides, the 
flood of each of which, however, falls below the high water- 
mark of its predecessor, while each ebb more and more near- 
ly approaches the line of sanity. To constitute a recovery, the 
patient must at least have regained the reason which he en- 
joyed before the appearance of the disease: he must have 
reacquired a taste for his former occupation, must again display 
his former inclinations and points of interest, must understand 
what he remembers of his disease when assisted by explana- 
tions, must speak of it as of something to which he is now supe- 
rior, must clearly see the erroneous nature of the delusions 
(,y) See Etudes Physio-Somatiques sur F Alienation Mentale, par L. E. F. 
Renaudin, cliap. ix. p. 522. Paris, 1854. 
744 BOOK I.] 
[§ 747 
LUCID INTERVALS. 
under which he labored, and must he really contented and 
internally at peace. But if, on the other hand, the former 
character of the disease has only disappeared in part; if the 
old insane grudge against one person or another is manifested; 
if there is a smothered rage, or aversion to persons or things 
formerly cherished; if the alleged convalescent refuses to 
acknowledge his disease in general or in regard to particular 
points; if his conduct is marked by unnatural irritability, 
suspicion, or boisterous and immoderate joy, or by other anoma- 
lous features, a perfect recovery has not taken place, although, 
in point of intelligence, formal and substantial, not the slight- 
est anomaly is perceptible.(^) 
§ 747. Where the patient’s recovery from a mental disorder 
is not clearly established, it may he doubted whether an 
alleged criminal act was committed under circumstances 
involving the full responsibility of the agent. Whether the 
malady was of long or short duration, whether it was more or 
less intense, is here of no decisive import, and of equally little 
moment is the apparent reflection and preparation with which 
the act may have been committed. 
The different kinds of improvement or interruption in cases 
of unsoundness of mind, present various features, which vary 
in accordance with the duration and degree of abatement. 
1. Intervallum lucidum, with a restoration of consciousness 
in general and of insight into the past and present, but with- 
out entire clearness, and with the continuance of a more, though 
not entirely subdued temperament. The patient is not yet the 
same as he was before the disease overtook him. If he was, 
he would have to be regarded as restored to health, and there 
would, in its strict meaning, be no question as to a lucid interval. 
2. Remission differs from a lucid interval only in degree, 
being generally attended with a subsidence of the external 
manifestations of the disease, not sufficient, however, to be 
mistaken for recovery. 
3. Alternation is the term given to the change from one form 
of mental unsoundness to another, particularly from depression 
to mania and the converse, not however from psychical to 
(s') Compare Ellinger, p. 169. Scliurmayer, § 573. 
745 § 749] 
MENTAL UNSOUNDNESS. 
[book I. 
bodily, or from bodily to psychical manifestations. Where 
for instance the individual has long suffered from morbid de- 
pression or elation of spirits, this may gradually decrease and 
give place to an apparent return of health, which, however, 
does not last long, but sooner or later lapses into the opposite 
condition, so that depression turns into mania, and mania into 
depression. 
4. Intermission, when the disease recurs at more or less 
regular periods, and the disease presents no anomalous symp- 
toms. 
§ 748. The restoration of moral responsibility progresses in 
correspondence with the progress of recovery. In passing, 
therefore, upon a given case, regard should be had, not only 
to the individual circumstances, but also to the time inter- 
vening between the cessation of patent insanity and the com- 
mission of the offence.(a) 
§ 749. On this topic Dr. Rush thus speaks: “The longer the 
intervals between the paroxysms of madness, the more com- 
plete is the restoration to reason. Remissions rather than 
intermissions take place when the intervals are of short dura- 
tion, and these distinguish it from febrile delirium in which 
intermissions more generally occur. In many cases everything 
is remembered that passes under the notice of the patient 
during a paroxysm of general madness, but in those cases 
where the memory is diseased as well as the understanding, 
nothing is recollected. I attended a lady in the month of 
October, 1802, who had crossed the Atlantic Ocean during a 
paroxysm of derangement, without recollecting a single cir- 
cumstance of her voyage any more than if she had passed the 
whole time in sleep. Sometimes everything is forgotten in 
the interval of a paroxysm, but recollected in a succeeding 
paroxysm. I once attended the daughter of a British officer, 
who had been educated in the habits of gay life, who was 
married to a Methodist minister. In her paroxysms of mad- 
ness, she resumed her gay habits, spoke French and ridiculed 
the tenets and practices of the sect to which she belonged. In 
the intervals of her fits, she renounced her gay habits, became 
746 
(a) Schurmayer, Gericht. Med. § 574. BOOK I.] 
LUCID INTERVALS. 
747 
zealously devoted to the religious principles and ceremonies of 
the Methodists, and forgot everything she did and said during 
her fits of insanity. A deranged sailor, some years ago, in 
the Pennsylvania Hospital, fancied himself to be an admiral, 
and walked and commanded with all the dignity and au- 
thority that are connected with that high rank in the navy. 
He was cured and discharged; his disease some time after- 
wards returned, and with all the actions of an admiral which 
he assumed and imitated in his former paroxysm. It is re- 
markable that some persons when deranged talk rationally, but 
act irrationally, while others act rationally and talk irrationally. 
We had a sailor some years ago in our hospital, who spent a 
whole year in building and rigging a small ship in his cell. 
Every part of it was formed by a mind apparently in a sound 
state. During the whole of the year in which he was em- 
ployed in this work, he spoke not a word. In bringing his 
ship out of his cell, a part of it was broken. He immediately 
spoke and became violently deranged soon afterwards. Again, 
some madmen talk rationally and write irrationally ; but it is 
more common for them to utter a few connected sentences in 
conversation, but not be able to connect two correct sentences 
together in a letter. Of this, I have known many instances 
in our hospital. ”(6) 
§ 750. Mania frequently assumes a type in which the periods 
of return and of cessation are marked with the greatest ex- 
actness and regularity.(c) Medicus, in his history of periodical 
diseases,(d) tells us of a girl who was subject to a delirium 
which came on every evening at exactly the same hour, and 
lasted three hours and a half. Of two women attacked with 
periodical madness, one was deranged nine days in each month, 
and the other two days.(e) 
§ 751. Morel (1866)(/) tells us of a lady who for a number 
of years was afflicted as follows: When enjoying the full 
possession of her faculties, and with no other premonition 
(6) Rusli on tlie Mind, pp. 162, 163, 164. 
(c) Siebold, Gericht. Med. § 217. 
(id) Kailsr. 1764. 
(e) See also Henke’s Zeitschr. 13 Bd. sec. 159. 
(/) Traite de la Med. Leg., etc., p. 479. 
747 748 
MENTAL UNSOUNDNESS. 
[book i. 
than that of peculiar health, and of augmented desire to leave 
the asylum in which she was confined, she would fall into a 
sleep marked hy terror (cauchemar) and excitement. She 
would soon lift herself up, and with cries of horror, spring out 
of bed. The fit thus began, and then ran through its course. 
Her face would be distorted, she would refuse nourishment, 
beat against the wall, and bite and tear, in her agony, what- 
ever came in her way. This would last from twenty-five to 
twenty-six days. About the twenty-first day relief would 
begin; and she would fall into a stupor, and then gradually 
return to sound reason. This lucid interval would last about 
three weeks, during which she would be in all respects refined 
and intelligent. This condition has lasted thirteen years, with 
no other permanent change than that of perhaps a slight 
general weakening of intelligence. 
§ 752. Hr. Liman, whose great experience, as well as emi- 
nence, as a psychological physician, has been already frequently 
noticed, states,(y) that practically, so far as concerns the Ger- 
man criminal courts, the question of “lucid intervals” comes 
up very rarely for adjudication. “ At least,” he says, “among 
the hundreds of cases as to which I have given opinions, there 
was not one in which the existence of a ‘ lucid interval’ was 
the subject of contest. In penal cases the defence goes beyond 
this, maintaining the existence of actual derangement at'the 
time of the act, or assuming, from some prior mental malady, 
that the defendant at the time of the act was of unsound 
mind.” 
(g) Liman’s Casper, 1871, p. 618. 
748 BOOK I.] 
TREATMENT OF INSANE CRIMINALS. 
[§ 753 
CHAPTER III. 
TREATMENT OF INSANE CRIMINALS. 
§ 753. The enlargement of the range of insane irresponsi- 
bility which the preceding sections recognize, makes the sub- 
ject of the subsequent treatment of the insane offender of 
momentous importance. Even if we adopt the severest legal 
tests, yet when a case occurs -of an acquittal on ground of in- 
sanity, as it sometimes must on the most stringent principles, the 
offender, who in this case, on the law’s own assumption, is a mere 
“ animal,” should be no more permitted to range the streets than 
should a mad dog or a mad bull. But in point of fact, there are 
a myriad of phases of mental unsoundness, none of which are 
consistent with entire responsibility, and yet each of which 
has its distinct degree of moral culpability attached to it. 
Bare, indeed, are the instances, where there is not a conscious- 
ness of guilt, which, though distorted or faint, is, nevertheless, 
appreciable. Still rarer are the cases of acquittal in which the 
insanity of the perpetrator is so abhorrent as to exclude it from 
the range of imitation by those who may desire to commit 
crime with impunity. And if these considerations be thrown 
aside, there remains the fact that insane crime becomes epi- 
demic when it becomes heroic; and that the only way to 
divest it of this quality, is to subject it to that wholesome but 
homely discipline which strips it of its sentimentality, and, at 
the same time, destroys its capacity for mischief. In this view 
it is recommended that wherever such provision does not al- 
ready exist, there should be a separate penitentiary establish- 
ment for insane offenders, where they may continue to be con- 
fined, under the severest discipline consistent with health, 
until it appear on evidence taken upon due notice to the 
prosecuting authorities, that the patient is entirely sane. The 
749 § 755] 
TREATMENT OF INSANE CRIMINALS. 
[BOOK I. 
propriety of such a course will appear by an examination of 
the subject under the following heads :— 
A. Retribution, § 754. 
B. Prevention, § 763. 
C. Example, § 765. 
D. Reform, § 766. 
A. Retribution. 
§ 754. The question here depends on that of guilt. Was the 
offender in any sense a moral agent in the act complained of? 
The answer presupposed by the present inquiry, viz., that of 
the relations of a person judged irresponsible on account of 
insanity, is, that he was not. And in a strict technical sense, 
this is undoubtedly true. The inquiry, however, may be 
pushed farther back, and here the case of delirium tremens may 
be taken as an illustration.(A) Delirium tremens, even on the 
most stringent principles, exonerates its subject from the penal 
consequences of a crime committed under its direct influence. 
And yet it is clear, first that delirium tremens is the result of a 
prior vicious indulgence; second, that if the patient be per- 
mitted to wander about when the delirium continues, he will 
do further mischief, and, third, that if he escape with entire 
impunity, the example will be likely to be followed as a pretext, 
if not caught as a contagion. And under these circumstances 
what is to be done ? It is plain that some species of confine- 
ment must be resorted to; and that if such a method of 
discipline be applied, it will be, in a moral point of view, 
thoroughly justified by the delinquency which was the volun- 
tary cause of the diseased mental condition under which the 
crime was committed. 
§ 755. What has just been said of delirium tremens applies 
with greater or less exactness to all other cases of mental un- 
soundness. Insanity, which is not congenital, or the result of 
accident or old age, is, in most cases, the result of causes which 
{h) This question has already been touched upon, and the authorities bear- 
ing upon it have been noticed. See ante, § 201. In opposition to the 
views expressed in the text -will be found Mr. M. B. Sampson’s “ Criminal 
Jurisprudence considered in relation to cerebral organization.” London, 
1843. 
750 BOOK I.] 
RETRIBUTION. 
[§ 756 
the patient himself might have averted if he had chosen.(z) 
And particularly is this the case with that very species of mental 
unsoundness—that of monomania, or moral insanity—which 
is the cause of the greatest difficulty in the present connection. 
This is very admirably stated by Dr. Barlow, in his powerful 
essay on this very point:— 
§ 756. “I have said that mental derangement and madness 
are different things ; thus, a person may fancy he sees others 
around him who have no existence, as in the well-known cases 
of Kicholai, of Berlin, and Dr. Bostock. This is a certain 
degree of mental derangement while it lasts; but as both soon 
satisfied themselves that these personages were merely the 
creation of a morbid physical state, they were not mad. A 
man of less resolution would have shrunk from the labor of 
convincing himself that he was fooled by his senses, and would 
have insisted that the figures were real, and then he would 
have been mad. Of these cases Dr. Connolly very justly 
remarks, ‘ Let any one reflect how Nicholai preserved his 
reason under such visionary and auditory delusions for so 
many months; and why the English physiologist, though 
visited with the images which are so well known to he familiar 
with mad people, never lost the use of his excellent understand- 
ing. The ready answer will he, they never believed in their 
real existence. But why did they not ? And why does the 
madman believe in their real existence? The evidence of both 
is the same, the plain evidence of sense. The explanation 
must be this. The printer of Berlin and the physician in 
London retained the power of comparison: they compared the 
visual objects of delusion with the impressions of other 
senses’ and the perceptions of other persons, and became con- 
vinced of their unreality. ‘ This is exactly what madmen 
cannot do. One form of madness consists in this very illusion 
of sense, hut it is conjoined with the loss or defect of the com- 
paring power, and the madman concludes that what is only an 
illusion is a reality. But the illusion is not the madness.’ 
Thus, according to the opinion of this very able judge, the 
affection of the brain which causes these delusions is not 
(0 See supra, §§ 115, 118, 403, where this subject is discussed. 
751 § 757] 
TREATMENT OF INSANE CRIMINALS. 
[book i. 
madness, but the want of 'power or resolution to examine them is. 
Nothing, then, but an extent of disease which destroys at 
once all possibility of reasoning, by annihilating or entirely 
changing the structure of the organ, can make a man neces- 
sarily mad.” 
§ 757. “A man may labor under a mental delusion, and yet 
he a responsible agent; and, if sanity or insanity be in a great 
many instances the consequences of a greater or less resolution 
in exerting the power of reasoning still possessed, the same 
kind of motives which influence a man in common life are 
still available, though they may require to be somewhat 
heightened. It is on this principle that the treatment of 
lunatics has been generally conducted. Fear, one of the 
lowest, but also one of the most general of instinctive emotions, 
has been called in to balance the delusions of sense, and, ex- 
cepting in cases where the structural disease is so extensive as 
to deprive the man of all power of connecting cause and 
effect, it has been found sufficient to curb violence, and enforce 
a certain degree of peaceable demeanor towards the attendants. 
And in this the insane person differs not from the cultivated 
man who is left at liberty, whose self-control rarely amounts 
to more than the avoiding actions which would have un- 
pleasant consequences to himself. Suppose an irascible man, 
incensed by a false report, which, however, he believes to be 
true ; he seeks his supposed enemy, and horsewhips or knocks 
him down; he does not assassinate, because he fears for his 
own life if he does ; for it is clear that no feeling of duty has 
held his hand, or he would not have transgressed the laws both 
of God and man by thus revenging himself. The madman 
has the false report from his own senses ; wherein do the two 
differ ? Neither has employed means within his power to as- 
certain the truth, and both are aware that such vengeance is 
forbidden. I can see no distinction between them, save that 
the delusion of sense has, as a chemist would say, decomposed 
the character, and shown how much of the individual’s previ- 
ous conduct was rational, and how much the result of mere 
animal instinct. It would be well for the world if the soi- 
disant sane were sometimes to ask themselves how far their 
sanity would bear this test, and endeavor to acquire that 
752 BOOK I.] 
RETRIBUTION. 
[§ 758 
rational self-command which nothing but the last extremity 
of cerebral disease could unseat. We do not descend from our 
high rank with impunity: and, as, when the matter has become 
organized, if the process of change occasioned by the vital 
force be impeded or arrested, the plant pines away and per- 
ishes ; as, after the organs of locomotion have been superadded, 
the animal debarred from the use of them languishes and 
becomes diseased; so man, if he give not full scope to the 
intellectual force, becomes subject to evils greater than animals 
ever know, because his nature is of a higher order.” 
§ 758. “ Neither do severe injuries from external causes, 
though, like paralysis, they might cause a loss of those faculties 
which connect man with the world about him, necessarily dis- 
connect him with the world within, so as to place him beyond 
his own command. 
“A case has been communicated to me illustrative of this. 
A young lad, who had been carefully instructed in the prin- 
ciples of religion and virtue by the clergyman of his parish, 
afterwards went to sea. When he was about twenty-two, he 
unfortunately fell from the mast upon his head on the deck, 
and the injury to the brain was such that he was discharged 
from the service in a state of imbecility, and sent home to his 
parish. He was then in possession of the use of his limbs and 
hearing; but articulation was apparently difficult to him,and 
collected thought, which should enable him to speak con- 
nectedly, still more so; his sight, too, was subject to a delusion 
which made him imagine he saw gold and silver coin strewed 
about on the ground; which, as was natural, he eagerly en- 
deavored to pick up. He was now visited by the clergyman 
who had been the instructor of his youth, who in kind terms 
assured him he was under a false impression, and advised him 
to give no heed to what he imagined he saw. The poor young 
man thanked him, and promised to do as desired, and for a 
time abstained from attempting to pick up the coin, but gra- 
dually the delusion became too strong for his resolution, and 
he recommenced. Yet, after every visit from his former in- 
structor, he again controlled himself for a time; and,if he did 
not come, anxiously sought him at his own house. He died 
in a few months, but during the whole time was mild and 
vol. i.—48 
753 § 761] 
TREATMENT OF INSANE CRIMINALS. 
[book I. 
submissive, seeming perfectly aware that his mind was dis- 
ordered ; and, like a child who distrusts his' own power, seek- 
ing to throw himself on the guidance of one whose kindness 
he remembered, and whose character he respected. This man 
was suffering mental derangement from injury of the parts, 
hut was not insane ; for the faculties left him were rationally • 
exercised. 
§ 759. “Cases of this kind have been considered by some as 
a peculiar type of insanity. By French authors it is entitled 
mania sans delire. Dr. Pritchard styles it instinctive madness. 
I am inclined, nevertheless, to refer such deranged propensities 
in some instances to a peculiar morbid state of sensation, and 
these will come under the head we are now considering, conse- 
quently the desire is not irresistible, though strong, for we see 
that it has been successfully resisted; in others I should refer 
it to the second class, under the head of 4 Inefficiency of intel- 
lectual force,’ and then it depends on the resolution of the 
person so affected whether the morbid sensation shall be medi- 
tated on and indulged, and thus acquire fresh force, or whether, 
by exciting other sensations, it shall he weakened and by 
degrees vanquished. 
§ 760. “There is no greater error than to suppose that 
thinking about a propensity which ought not to be gratified 
will conquer it; on the contrary, every hour of lonely thought 
gives it fresh force; hut let the man plunge into business that 
must he attended to, or even a lighter occupation, so it he an 
engrossing one; and do this resolutely, however irksome it 
may at first appear, and the very repose thus given to the dis- 
eased part, if there he disease, by throwing the whole stress on 
other portions of the brain, will assist in effecting a cure. 
§ 761. “ When a man lias reached mature age without making 
any effort to render the brain subservient to the rational will, 
the fatigue and even pain consequent on the endeavor to 
obtain the mastery over it is such that few have resolution to 
undergo it voluntarily. Thus the man subsides more and more 
into the animal, and is at last guided only by those instinctive 
emotions which belong to the vital force merely. His passions 
assume a delirious violence, and he is only distinguished from 
the brute from the greater skill with which he pursues their 
754 BOOK I.] 
RETRIBUTION. 
[§ 761 
gratification. There is no disease of brain, but it has been left 
unexercised and ungoverned till it is as unmanageable as a 
limb that has been treated in the same way. 
“Toes have been used for writing and other arts which are 
usually performed by fingers; they are capable, therefore, of 
such use, but those who have constantly worn shoes cannot 
direct one toe separately from the rest, as they can the fingers. 
Yet with much trouble this power of directing might be 
acquired. It is thus that the brain, unaccustomed to direction 
from the intellectual force, rebels against it, and, if this latter 
fails to assert its sway, it may justly be termed inefficient. In 
a man thus animalized, the actions differ from those of his 
more spiritualized fellow men, who happily are more numerous; 
and, when they find no such motive as they would consider a 
sufficient one for his conduct, they call him mad, by way of 
accounting for it. He commits a crime, and a plea of insanity 
is set up as a shelter from punishment. I will give an instance. 
It is recorded by the elder Pinel: 4 An only son, educated by a 
silly and indulgent mother, was accustomed to give way to all 
his passions without restraint. As he grew up, the violence 
of his temper became quite uncontrollable, and he was con- 
stantly involved in quarrels and lawsuits. If an animal 
offended him, he instantly killed it; yet, when calm, he was 
quite reasonable, managed his large estate with propriety, and 
was even known to be beneficent to the poor; but one day, 
provoked to rage by a woman who abused him, he threw her 
into a well. On his trial, so many witnesses deposed to the 
violence of his actions, that he was condemned to imprison- 
ment in a mad-house.’ Yet any choleric man who does in his 
rage what he is sorry for afterwards is as much insane as this 
man was; both are under the influence of the vital force. A 
shock to some nerve of sensation stimulates the sympathetic 
system; the circulation is hurried, and the blood, flowing more 
rapidly through the brain, gives an unusual activity to the 
motor nerves, the movements are sudden and violent, the 
speech hurried, loud, and perhaps incoherent; but the intel- 
lectual force knows the source of these symptoms, and can 
curb them by resolute silence and inaction till the blood again 
flows at its usual pace ; if it does not, the man, for a time, is 
755 §761] 
[book I. 
TREATMENT OF INSANE CRIMINALS. 
in a state of mania, but is not tbe less responsible for having 
allowed himself to be so. 
“Let us suppose another case; the thing is so constantly 
seen that every one could quote examples of it. A man un- 
accustomed to self-control becomes occupied by one thought; 
his ambition has been disappointed, perhaps, or a lawsuit has • 
plagued him, or he has been much employed in some engross- 
ing pursuit. Unable to regulate his thoughts at will, he finds 
the one which circumstances have made habitual recur un- 
called for. An effort would dismiss it, for every one who has 
studied knows that he has had to dismiss many an intruding 
thought, and with some effort, too, if he wished to make pro- 
gress in what he has undertaken; but this individual has never 
been accustomed to make any such effort, and he knows not 
how to free himself from the subject which thus haunts him. 
If it be an unpleasant one, he is wearied and worn by it; but 
every day that it is not driven off, it assumes a greater power, 
for the part of the brain thus brought into action is now by 
habit rendered more fit for use than any other: he has not 
resolution enough to free himself from his tormentor by a de- 
termined application to something else which would require 
all his attention; he sits brooding over it, and, when life has 
thus become irksome, he strives to terminate his discomfort by 
suicide; yet here is no structural disease, and, if the man could 
be persuaded to exert himself, he might be sane. I will give 
an instance. The master of a parish workhouse, about thirty 
years of age, was subjected frequently to groundless suspicions 
of peculation. Being naturally a taciturn, low-spirited man, 
these false accusations, which involved his character, and con- 
sequently the maintenance of his family, preyed upon his 
mind, and a profound melancholy was the result, attended by 
the usual symptomatic derangement of the digestive functions, 
and a constant apprehension that he had done something 
wrong, he did not know what. Uo assurance on the part of 
those who knew and esteemed him had any effect, and finally, 
after some months of melancholy, he attempted to destroy 
himself. He was then removed to St. Luke’s Hospital, whence,. 
after a year had elapsed, he was discharged incurable. He 
was now placed in a private receptacle of the insane, and here 
756 BOOK I.] 
[§ 762 
RETRIBUTION. 
suffered all tlie misery which at that time pauper lunatics were 
subjected to. He was visited at this place by a benevolent 
man, who, seeing his state, immediately ordered him to be re- 
moved into the gentlemen’s apartments, and paid for his main- 
tenance there. In a few months afterwards he was visited by 
the clergyman of his parish, who, on conversing with him, 
considered him sane. The man begged to be allowed to rejoin 
his wife and family, and the rector, after many difficulties and 
some threats to the parish authorities, succeeded in setting him 
free. The man from that time was able to maintain his family 
by his trade of shoemaking, for, if ever a tit of melancholy 
came over him, a threat from his wife that he should be sent 
back to the madhouse was sufficient to engage him to make an 
effort to resume his cheerfulness; and he remained to old age 
a sane man. Here the insanity had been merely inefficiency of 
the intellectual force. Placed in a situation of comparative ease, 
his mind had become calm; the wish to return to his wife and 
family, and the hope of it, kept up by the visits of benevolent 
friends, did the rest; for, be it observed, during the whole 
time he never felt himself abandoned. The poor and the unedu- 
cated are the classes which most usually suffer from the in- 
efficiency of the intellectual force; it is among the higher ranks 
usually that its misdirection is a source of insanity. Among 
these, more distant objects of pursuit keep the thoughts longer 
upon the stretch towards one point; the organs of mechanical 
memory are strengthened, nay, even strained by the habit of 
learning much by rote, while the constant supply of learning 
ready-made leaves no necessity for the more laborious pro- 
cesses of reasoning and comparison. Hence we not unfre- 
quently find an elegant scholar, who can readily quote the 
words and opinions of others, unable himself to carry on a 
course of close argument, or to 'prove the truth of what he ad- 
vances. Whoever has moved in society knows that it is rare 
to meet with any one who can command his thoughts in con- 
versation frequently to reject all that is not relevant to the 
subject, so as to keep on the chain of reasoning unbroken.^') 
§ 762. “When the mind is thus exercised in remembering 
(j) Ibid. 
757 § 762] 
TREATMENT OF INSANE CRIMINALS. 
[eook i. 
the opinions of others, thus unaccustomed accurately to ex- 
amine its own, what wonder is it if it should become pre- 
possessed with some irrational notion which cannot be removed 
by reasoning, because the individual man in his healthiest 
state had never chosen so to exercise his mind; or if,when a de- 
lusion of sense occurs, he should choose rather to act upon it 
as truth, than to examine into the grounds he has for believing 
it to be such. It is a melancholy fact that a great number of 
mankind are in this state as regards the faculties most requisite 
to self-control, and depend far more on the accident of good 
health, than the exertion of their own intellectual power, for. 
their sanity. I have heard of more than one instance of hard 
livers, as they were termed, who probably, in consequence of a 
slight affection of the brain from the unnatural stimulus of 
wine long kept up, became possessed with an opinion that they 
were slighted by one or more of their friends; and, resisting 
all reasoning on the subject, ended by destroying themselves. 
Yet they were rational on other matters of importance, and 
therefore it is to be concluded, that, even on this point, they 
were capable of being rational also, had they chosen to make 
the exertion. It is recorded of Henri of Bourbon, son of the 
great Cond6, that at times he imagined himself transformed 
into a dog, and would then bark violently. Once this notion 
seized him while in the king’s presence; he then felt it needful 
for him to control himself, and he did so; for, though he turned 
to the window, and made grimaces as if barking, he made no 
noise. Had the king’s eye been upon him, it is probable that 
he would have avoided the grimaces also.”(A;) 
“The indulgence of violent emotions,” observes Dr. Con- 
nolly, “ is singularly detrimental to the human understanding, 
and it is to be presumed, that the unmeasured emotions of 
insanity are sometimes perpetuated in consequence of the dis- 
order of brain originally induced by their violence. A man 
is at first only irritable, but gives way to his irritability. 
Whatever temporarily interferes with any bodily or mental 
function reproduces the disposition to be irritated, and cir- 
cumstances are never wanting to act upon this disposition till 
(k) Ibid. See supra, §§ 115, 188, 403. 
758 BOOK I.] 
PREVENTION. 
[§ 764 
it becomes a disease. The state of the brain, or part of the 
brain, which is produced whenever the feeling of irritation is 
renewed, is more easily induced at each renewal, and concurs 
with the moral habit to bring on the paroxysm on every slight 
occasion—other vehement emotions and passions effect the 
same disorders of the mind.”(7) 
B. Prevention. 
§ 763. An eminent American physician tell us, that “ no 
argument should weigh, for a moment, with a court of justice, 
in favor of liberating such an individual (one subject to homi- 
cidal mania). The fact that life has been taken should over- 
balance all motives to send such person into society again, 
while the delusions and estrangements of insanity continue; 
and, we add, not until months, if not years, of peace and 
freedom from excitement should have confirmed their entire 
release from this dangerous form of disease.” “We recently 
attended,” says the same authority, “ an interesting trial on a 
subject of this nature in a neighboring county in this State. 
An habitually peaceful and worthy man was indicted for the 
most shocking murder of his wife with an axe, and a horrible 
attempt upon the lives of his children with the same weapon. 
The facts were not denied, and his only defence was that of 
insanity. He was acquitted, principally upon our testimony 
as to the fact of his being insane at the time the murder was 
committed, of which we have not the slightest doubt; but 
our astonishment was only exceeded by our alarm, when sub- 
sequently informed that bail had been admitted, and this 
afflicted but truly dangerous man was permitted to go at large. 
This ought not to be so. Science and humanity may interpose 
for the life of the homicide, but society should ever be pro- 
tected from the effects of his dreadful disease. The lunatic 
asylum is his proper place; and it should be duly prepared 
for his reception and detention.”(m) 
§ 764. The man who, in an insane impulse, kills one man, 
is more than likely, under the same impulse, to kill another. 
(Z) Ibid. 
(m) Dr. Woodward, cited in 4 Journal of Psychological Medicine, p. 469. 
759 § 764] 
TREATMENT OF INSANE CRIMINALS. 
[book i. 
And, indeed, the several facts of moral mania imply a chronic 
tendency to the particular crime. This was agreed on all sides 
in Hadfield’s case, where the point was first mooted. “ For 
his own sake,” said Lord Kenyon, “ and for the sake of society 
at large, he must not be discharged, for this is a case which 
concerns every man of every station, from the king upon the 
throne to the beggar at the gate; people of both sexes and all 
ages may, in an unfortunate frantic hour, fall a sacrifice to 
this man, who is not under the guidance of sound reason; and 
therefore it is absolutely necessary, for the safety of society, 
that he should be properly disposed of, all mercy and humanity 
being shown to the unfortunate creature; but, for the sake of 
the community, he must somehow or other be taken care of, 
with all the attention and all the relief that can be afforded 
him.” Hereupon the counsel for the crown and the counsel 
for the defendant agreed that the safety of the community 
required that he should be taken care of. “ It is laid down in 
some books,” said the former (Sir John Mitford, afterwards 
Lord Redesdale), “that, by the common law ,the judges of 
every court are competent to direct the confinement of a person 
under such circumstances.” “ That may be, Mr. Attorney- 
G-eneral,” interposed Lord Kenyon, “but at present we can 
only remand him to the confinement he came from ; but means 
will be used to confine him otherwise in a manner much better 
adapted to his situation.” It was then suggested by Mr. 
Garrow (afterwards a baron of the exchequer) that “ it would 
be for the benefit of if the jury would state in their 
verdict the grounds upon which they gave it, viz., that they 
acquit the prisoner of this charge, he appearing to them to 
have been under the influence of insanity at the time the act 
was committed. There would then,” he added, “ be a legal 
and sufficient reason for his This recom- 
mendation was adopted by the jury, who returned a verdict in 
these terms. Thus originated the form of verdict now com- 
monly returned in cases of this description. 
(n) Howell’s State Trials, vol. xxvii. p. 1354 et seq. Suggestions for the 
future Provision of Criminal Lunatics, by W. Charles Hood, M.D., London, 
1854, pp. 16, 17. 
760 BOOK I.] 
[§ 765 
EXAMPLE. 
C. Example. 
§ 765. The recorded cases are numerous in which the sup- 
posed irresponsibility of lunatics has led to the perpetration of 
crime by the insane. “ They cannot hang him,” was whispered 
about in the York Lunatic Asylum, when the tiring of York 
Minster by a supposed lunatic was under consideration; “he 
is one of ourselves.” And one of the most dangerous convicts 
in the Eastern Penitentiary—one laboring under homicidal 
mania in its most inveterate shape—was constantly expressing 
his disappointment at finding that, notwithstanding his ac- 
quittal on the ground of insanity, he was to be continued in 
prison. He had, in fact, supposed himself privileged by his 
disease to commit this particular crime.(o) And even taking 
the strongest case—that of the man who is possessed by a 
homicidal mania which equals in intensity the passion of par- 
ticular classes of dogs for sheep’s blood—we will have strong 
ground to believe that such an instinct can be tutored. Mo- 
nomanias, in fact, are epidemics, and spread precisely to the 
degree in which they are invested with sentimental celebrity. 
The Leipsic “ Madchen-Schander,” who, when charged with 
gratifying a morbid sexual impulse by striking lancets in the 
arms of such young girls as he might meet in a crowded street, 
never exercised this propensity except when it was likely it 
would be undetected. Shame and the fear of punishment 
(o) In reference to this case I have the following note from Mr. David 
Paul Brown, who was counsel for the person mentioned :— 
“You refer, as I suppose, to the case of Wiley Williams, who shot Dr. 
Kirkbride. I have some knowledge of that case, tending clearly to show, in 
your language, that ‘the recorded cases are numerous in which the supposed 
irresponsibility of lunatics has led to the perpetration of crime by the 
insane. ’ 
“ Shortly before Williams shot Dr. Kirkbride, I received a letter from the 
lunatic, in which he complained of his sufferings during several months of 
confinement at the asylum, expressed his delight at his escape, and desired to 
know what redress he could obtain for the injuries he had unjustly sustained. 
In conclusion he stated that if the law did not furnish redress, he would be 
his own avenger. * If, ’ says he, ‘ I was not insane when I was placed in the 
asylum, those who put or those who kept me there deserve death for their 
cruelty; and if I was insane, then, if I kill them, my insanity will exempt 
me from the consequences of crime !’ ” 
761 § 767] 
TREATMENT OF INSANE CRIMINALS. 
[book i. 
restrained him thus far; but it was quite otherwise when he 
became the object of a sentimental curiosity, which made him 
during his trial and imprisonment the object of conspicuous 
attention. The monomania became an epidemic, and would 
have continued so had not an ignominious punishment been 
affixed. 
D. Reform. 
§ 766. To permit a monomaniac to go at large will be to 
give fuel to his disease, as well as to supply it with victims— 
“ Mobilitate yiget, 
Viresque acquiret eundo.” 
And to nothing does this apply with greater force than that 
exaggerated state of the moral system which has just been dis- 
cussed. If the indulgence in passion, even in a healthy mind, 
tends, as has been just shown, to derangement, it will readily 
be seen that no recovery can he effected while the patient 
is permitted to run at large, exposed to all the irritating influ- 
ences of unguarded society, and encouraged by his very irre- 
sponsibility in a career of lawless vice. 
§ 767. Dr. Mayo thus well illustrates the awkward position 
of insane criminals under the present administration of the 
law: “ It must be confessed that the conditional responsi- 
bility which the law, and, as I think, the reason, of the case 
attributes to the insane is not easily applicable in practice, 
either under lucid intervals, or under such other phases of the 
insane state as might seem to justify it. The law will remain 
a dead letter, or will be continually ignored by the sympathies 
of judges, juries, and, I may add, of medical witnesses, unless 
some practical distinction can be arranged which may enable 
the responsible insane to undergo some lower degree of pun- 
ishment than that inflicted on similar delinquents being of 
sound mind. The position of many such persons under capital 
charges is at present anomalous. They are acquitted in defi- 
ance of the law, as laid down by the judges respecting 
M’Haughten’s case, because the punishment at present apper- 
taining to the offence would be too severe; and then, instead 
of being consigned to confinement in a jail, as a secondary 
punishment, they are consigned to it in an asylum, as a place 
762 BOOK I.] 
[§ 768 
REF011M. 
simply of detention. This becomes a scene of severe virtual 
punishment to some of them, of gratification to vanity and 
idleness to others; those, meanwhile, to whom it is a grievance, 
as they do not regard it in the light of a punishment, derive 
from it none of the preventive effects of punishment on future 
conduct, while the public, for the same reason, find it equally 
unproductive of good, as an example to persons of actually 
diseased mind, or to that large class of other persons who are 
drifting into disease under uncontrolled eccentricity. ”(p) 
§ 768. It is impossible to carry out the proper disciplinary 
and remedial measures in a penitentiary common to the sane 
and insane. “I am satisfied of the fact,” says Dr. Hood, 
“ that criminal lunatics are more difficult to manage than 
other lunatics; there is more irritability of temper and general 
restlessness about them; they are cognizant of the offences 
they have committed, and, being under the impression that 
they will never recover their liberty, they are less disposed to 
be contented or happy. They are also conscious that they are 
separated into and form a distinct class of patients, and this 
very circumstance establishes a species of fraternity among 
them; for they are in constant communication with each other, 
and their curiosity is naturally excited to ascertain the cir- 
cumstances connected with every new arrival. They thus soon 
become acquainted with each other’s history, which is often 
the cause of much quarrelling and mutual recrimination; the 
better class of patients are unhappy at being associated with 
the inferior order—criminals whose manners and language are 
habitually of the most revolting description. Hence I con- 
clude that the fundamental principle upon which we should 
proceed, in providing for the safe custody, maintenance, and 
medical care of our criminal lunatics, should be that of estab- 
lishing a certain classification among them, founded upon the 
degrees or nature of the crimes which they may have com- 
mitted. This principle conceded, we have then to consider the 
expediency or inexpediency of organizing a State lunatic asy- 
lum for their common reception; the possibility or impossi- 
bility of each county providing adequate accommodation in 
(p) Mayo on Medical Testimony in Lunacy, pp. 50-52. 
763 §770] 
TREATMENT OF INSANE CRIMINALS. 
[BOOK I. 
existing asylums for its own criminal lunatics; and whether 
arrangements might not be made in prisons, and houses of 
correction, for the medical treatment of such prisoners as may, 
while undergoing imprisonment or penal servitude, become 
insane.”^) 
§ 769. On the other hand, the confinement of an insane 
criminal in an ordinary lunatic asylum is beset with still 
greater difficulties. “ It is,” says Dr. Hood, “ not only annoy- 
ing to other patients, but greatly disturbs the ordinary dis- 
cipline of the establishment; for, be it observed, lunatics, 
whether criminal or non-criminal, are capable of some degree 
of reasoning; and their conscious incapacity of enjoying this 
faculty to its full extent often recoils painfully upon their 
feelings, and becomes, in itself, a source of irritation. In pro- 
viding, indeed, for the safe custody and the management of 
the insane of all classes, we should proceed upon the same 
principles as if we were legislating for professedly sane per- 
sons ; because the mind is never totally eclipsed, there is 
always some lingering ray of light which the intact reflection 
may seize upon with instinctive trutlifulness.”(r) 
E. Way our present system should be remodelled. 
§ 770. If the views taken in the preceding sections be sound ; 
if, in the first place, there are inherent difficulties in the way 
of making insanity a ground of defence on the trial of a man, 
who, on this hypothesis, is psychologically incapable of either 
tendering or preparing any such issue ;(s) if, in the second place, 
(?) Suggestions for the future provision of Criminal Lunatics, by W. 
Charles Hood, M.D. London, 1854. pp. 28, 29. 
(r) Ibid. pp. 27, 28. 
(s) The absurdity of our present practice, in making insanity a personal 
defence, to be taken or rejected by the alleged lunatic in the exercise of a 
volition which the very nature of the defence supposes him incapable of ex- 
ercising, is fully exhibited by the following case :— 
SUPREME COURT OF THE STATE OF LOUISIANA. 
The Court met on Monday, April 9 th, 1855. 
Present, tlieir Honors Thomas Slidell, Chief Justice ; Cornelius Voorhies, 
A. M. Buchanan, A. N. Ogden, H. M. Spafford, Associate Justices. 
764 BOOK I.] 
WHY OUR SYSTEM SHOULD BE REMODELLED. 
[§ '770 
we must recognize sanity and insanity as pressing into each 
other gradually at a line that cannot be judicially defined, 
The State of Louisiana, appellee, 
3838 v. 
James Patton, appellant. 
Appeal from 1st District Court, 
New Oileans. 
Upon the trial of James Patton for the murder of Walter Turnbull, the 
following bill of exceptions was taken by the prisoner’s counsel:— 
Be it remembered, that on the trial of this case, on the 20th day of March, 
1854, after the evidence on the part of the State was closed, and when the 
counsel of the prisoner were proceeding to prove by the evidence of witnesses 
the insanity of the said prisoner, at the time of the killing set forth on the 
indictment, and a long time before, and ever since the said killing, the said 
prisoner arose and objected to and repudiated the said defence, and insisted 
upon discharging his counsel, and submitted his case to the jury without any 
further evidence or action of his counsel in his defence ; his counsel opposed 
and remonstrated against the prisoner’s being permitted to do so, alleging 
that they were prepared to prove the defence by clear and irresistible testi- 
mony ; but the court overruled the objection of the said counsel, and per- 
mitted the prisoner to discharge his counsel, and refused to hear them further 
on his defence, and gave the case to the jury without any further evidence or 
pleading on his behalf; to all which opinion and ruling of said court the de- 
fendant’s said counsel excepts, and prays his exceptions may be signed, etc. 
(Signed) John B. Robertson, Judge. 
Spafford, Justice, delivered the opinion of the Court. 
There was a verdict of “guilty, without capital punishment ;”and, after 
the former counsel had in the quality of amici curia attempted to obtain a 
new trial and arrest of judgment without success, the prisoner was sentenced 
to hard labor for life in the penitentiary. 
From this judgment the present appeal has been taken. 
The sanity or insanity of the prisoner is a matter of fact; the admissibility 
of evidence to establish his insanity, under the circumstances detailed in the 
bill of exceptions, is a matter of law, and the only matter which the consti- 
tution authorizes this tribunal to decide. 
The case is so extraordinary in its circumstances that we are left without 
the aid of precedents. 
In support of the ruling of the district judge, it has been urged that every 
man is presumed to be sane until the contrary appears, and that a person on 
trial for an alleged offence has a constitutional right to discharge his counsel 
at any moment, to repudiate their action on the spot, and to be heard by 
himself; hence the inference is deduced that the judge could not have ad- 
mitted the evidence, against the protest of the prisoner, without reversing the 
ordinary presumption, and presuming insanity. 
In criminal trials, it is important to keep ever in mind the distinction be- 
tween law and fact, between the functions of a judge and those of a jury. 
It was for the jury, and the jury alone, to determine whether there was 
765 766 
TREATMENT OF INSANE CRIMINALS. 
[book i. 
each being capable of various degrees ;(t) if, in the third place, 
it be right that the present system of confinement of insane 
insanity or not, after hearing the evidence and the instructions of the court 
as to the principles of law applicable to the case. 
By receiving the proffered evidence for what it might he worth, the judge 
would have decided no question of fact; he would merely have told the jury, 
“the law permits you to hear and weigh this evidence; whether it proves 
anything it is for you to say.” 
By rejecting it, he deprived the jury of some of the means of arriving at 
an enlightened conclusion upon a vital point peculiarly within their province, 
and in effect decided himself, and without the aid of all the evidence within 
his reach, that the prisoner was sane. 
It is idle to say that the legal presumption, and the prisoner’s own declara- 
tions, appearance, and conduct on the trial, established his sanity to the satis- 
faction of both judge and jury ; for presumption may be overthrown, decla- 
rations may be unfounded, and conduct and appearances may be deceitful; 
and the prisoner’s counsel, sworn officers of the court, with their professional 
character at stake upon the loyalty of their conduct, alleged that they stood 
there prepared to prove, by what they deemed clear and irresistible testimony, 
that the accused was insane at the time of the homicide, long before, and 
ever since ; so that the sole inquiry now is, not whether they or the court 
were right as to the fact of sanity, upon which we can have no opinion, but 
whether they should have been allowed to put the testimony they had at 
hand before the jury, to be weighed with the counter evidence. 
If the prisoner was insane at the time of the trial, as counsel offered to 
prove, he was incompetent to conduct his own defence unaided, to discharge 
his counsel, or to waive a right. 
Upon the supposition that the counsel were mistaken in regard to the weight 
of the evidence they wished to offer, as they may have been, still its intro- 
duction could do the prisoner no harm, nor could it estop him from any other 
defence he might choose to make on his own account; neither could it pre- 
judice the State, for it is to be presumed that the jury would have given the 
testimony its proper weight; if, on the other hand, the counsel were not mis- 
aken as to the legal effect of this evidence, the consequences of its rejection 
would be deplorable indeed. 
The overruling necessity of the case seems to demand that, whenever a 
previous soundness of mind and consequent accountability for his acts are in 
question, the rule that he may control or discharge his counsel, at pleasure, 
should be so far relaxed as to permit them to offer evidence on those points, 
even against his will. Considering, therefore, that it would be more in ac- 
cordance with sound legal principles, and with the humane spirit which per- 
vades even the criminal law, to allow the rejected testimony to go before the 
jury, the cause must be remanded for that purpose. 
It was said in argument, on behalf of the State, that the alleged insanity 
(<) See supra, §§ 46-60. 
766 BOOK I.] 
WHY OUR SYSTEM SHOULD BE REMODELLED. 
[§ 770 
criminals be remodelled—then it will become necessary for 
those to whom the work of legislation is committed to amend 
the law so as to require the question of insanity to be deter- 
mined by a competent tribunal after a conviction of the fact of 
guilt. For the following undeniable evils result from the 
present system:— 
a. A tribunal of at least but secondary competency is 
charged with the determination of the most difficult and yet 
most momentous question to which human observation can be 
applied.(w) 
b. A subject is introduced into the question of guilt or 
innocence, as to which no fixed judicial rules can be laid 
down, and which really concerns only the character and the 
extent of punishment. 
was, at most, but a monomania upon another topic, which could not exempt 
the prisoner from responsibility for the homicide. 
The judge will instruct the jury in regard to the principles of law which 
govern this subject, when all the facts shall have been heard. At present, 
the discussion is premature. 
It is therefore ordered, adjudged, and decreed that the judgment of the court 
below be reversed, the verdict of the jury set aside, and the cause remanded 
for a new trial according to law. 
(«) Dr. Hood very justly remarks : “All human tribunals are fallible, and 
how, when this plea of insanity is raised, can we unveil the mind of the ac- 
cused, and determine where responsibility ends and irresponsibility begins? 
We may appreciate outward and visible signs, but we have no mentometer (if 
I may be allowed to coin a word) which will indicate the thoughts that may 
be passing through the mind. In medical jurisprudence the diagnosis between 
sanity and insanity is, in many cases, infinitely difficult; and it is upon this 
account that specialists in this branch of our profession so often come into 
collision with members of the bar, and draw down upon themselves occa- 
sionally animadversions from the judges on the bench. There would be no 
difference of opinion between the two learned professions if we could arrive 
at any fixed principles by which we could explain the silent operations of the 
mind ; but this, so far as insanity is concerned, is as impossible in law as it is 
in medicine. We may adjudicate upon the overt act, but the motive which 
dictated it will very often elude the most searching examination. But this 
happens continually in sane as well as in insane life.”—Suggestions for the 
future Provision of Criminal Lunatics, by W. C. Hood, M.D. London, 1854. 
And we may add to this the testimony of a great poet on a kindred point:— 
“ May it please your Excellency, your thief looks 
Exactly like the rest, or rather better ; 
’Tis only at the bar or in the dimgeon 
That wise men know your fellon by his features.” 
767 768 
TREATMENT OF INSANE CRIMINALS. 
[book i. 
c. We confound by this process tlie sane convict; the malig- 
nant insane convict, who requires discipline and is in some 
degree morally responsible; the innocent insane convict ;(v) and 
the lunatic, who is in confinement hut is not charged with 
crime: for all of whom there is in some jurisdictions hut one 
common method of discipline provided, viz., that of the peni- 
tentiary ; in others, but two, that of the penitentiary and of 
the ordinary lunatic asylum. The result of this is acquittals 
in some cases, where there should he convictions; convictions 
in other cases where there should be acquittals, and in almost 
all cases an erroneous system of punishment. 
The remedy for these difficulties is one to which we must 
come sooner or later, and for which the common law has been 
from the beginning always striving, and yet losing from almost 
its very grasp. It is to confine the inquiry before the court 
and jury to the mere factum of the commission of the offence; 
reserving the question of treatment to be determined by a 
special commission of experts, to be appointed for the purpose 
of examining convicts alleged to be insane. The proposition 
to be put by the court to the jury, under such circumstances, 
is not, “Was the defendant capable of judging between right 
and wrong?” a proposition which no jury can determine, but, 
“ Did he,” as a matter of fact, “ commit the specific act 
charged ?” For whether he committed it as sane or insane, 
the result is, if the offence in point of law is indictable, that 
the safety of society requires that he should be placed in seclu- 
sion for such a period as will promote the joint ends of per- 
sonal reformation and the preservation of the well-being of the 
community at large. If he be guilty without the palliation of 
mental infirmity, certainly the severest penal code—with the 
single qualification of cases of murder in the first degree—can 
ask nothing more than this. If, on the other hand, he was at 
the time laboring under mental derangement, in no other way 
can the extent of his responsibility be accurately 
and the proper degree of discipline adjusted. For this great 
question of sanity or insanity can really be only determined 
by those to whose daily and hourly care the convict is com- 
(®) See as to distinction between these, ante, §§ 232-251. 
768 BOOK I.] 
WHY OUR SYSTEM SHOULD BE REMODELLED. 
[§ 770 
mitted, and who have thus full opportunity of inquiring into 
his antecedent as well as his present condition. “ Thus,” to 
adopt the language of an intelligent “ except 
as regards the curative course to be adopted, on our view of 
the case, the subtle line of distinction which there have been 
so many abortive attempts to draw, between criminal and non- 
criminal lunatics, is of no practical importance, and the una- 
vailing search, unless as a matter of metaphysical speculation, 
may be abandoned as unnecessary. In either case, the person 
concerned, whether called a lunatic, a criminal lunatic, or an 
ordinary criminal, should be so placed as to put it out of his 
power to inflict further injury, and to afiord the most likely 
means for his cure.” And thus, also, not only will the sanc- 
tions of human life and property be protected from the recur- 
rence of those monstrous acquittals, by which, under the plea 
of insanity, the most dangerous criminals are suffered to run 
at large, but the interests of humanity will be subserved by a 
proper discipline, as well as a just classification, of those whose 
accountability is diminished or destroyed.^) 
(w) XXI. London Law Review, 364. 
(x) See supra, § 200. “ I may be asked wliat principle I would propound 
for the guidance of courts of law in these cases. I cannot but repeat what I 
have already declared to be my conviction, that, in every criminal case ichere 
the question of responsibility arises in the course of judicial inquiry, if it 
BE POSSIBLE TO ESTABLISH ANY DEGREE OF POSITIVE INSANITY, IT SHOULD 
ALWAYS BE VIEWED AS A VALID PLEA FOR A CONSIDERABLE MITIGATION OF 
PUNISHMENT, AND AS PRIMA FACIE EVIDENCE IN FAVOR OF THE PRISONER ; 
AND IN NO CASE WHERE INSANITY CLEARLY EXISTS (WITHOUT REGARD TO 
ITS NATURE AND AMOUNT) OUGHT THE EXTREME PENALTY OF THE LAW TO 
BE INFLICTED. 
“ Wliat, I may be asked, is my test of insanity ? I have none. I know of 
no unerring, infallible, and safe rule or standard, application to all cases. 
The onljr logical and philosophic mode of procedure in doubtful cases of 
mental alienation, is to compare the mind of the lunatic at the period of his 
suspected insanity with its prior natural and healthy condition: in other 
words, to consider the intellect in relation to itself, and to no artificial a priori 
test. Each individual case must be viewed in its own relations. It is clear 
that such is the opinion of the judges, notwithstanding they maintained as a 
test of responsibility a knowledge of right and wrong. Can any other con- 
clusion be drawn from the language used by the judges when propounding in 
the House of Lords their view of insanity in connection with crime ? ‘ The 
facts,’ they say, ‘ of each particular case must of necessity present themselves 
vol. i.—49 
769 § 770] 
TREATMENT OF INSANE CRIMINALS. 
[BOOK I. 
with endless variety and with every shade of difference in each case ; and, as it 
is their duty to declare the law upon each particular case, upon facts proved 
before them, and after hearing arguments of counsel thereon, they deem it at 
once impracticable, and at the same time dangerous to the administration of 
justice if it were practicable, to attempt to make minute applications of the 
principles involved in the answers given by them to the questions proposed.’ 
This is a safe, judicious, and philosophic mode of investigating these painful 
cases ; and, if strictly adhered to, the ends of justice would be secured, and 
the requirements of science satisfied. 
“In considering the question of modified responsibility in connection with 
these cases of alleged insanity, we should never lose sight of the fact, that, 
even if a lunatic be fully exonerated and acquitted in consequence of his state 
of mind, he is doomed to linger out the remainder of his miserable existence 
in the criminal wards of a public lunatic asylum. 
“ To talk of a person escaping the extreme penalty of the law on the plea 
of insanity, as one being subjected to no kind or degree of punishment, is a 
perfect mockery of truth and perversion of language. Suffer no punishment! 
He is exposed to the severest pain and torture of body and mind that can be 
inflicted upon a human creature short of being publicly strangled upon the 
gallows. If the fact be doubted, let a visit be paid to that dreadful den at 
Bethlehem Hospital— 
‘Regions of sorrow, doleful shades, where peace 
And rest can never dwell, hope never come, 
That comes to all’— 
where the criminal portion of the establishment are confined like wild beasts 
in an iron cage ! 
“Much has been said of the deterring effects of capital punishment. I do 
not doubt its haying some effect in preventing crime ; but I incline to the 
opinion that if the real condition of those confined as criminal lunatics was 
well understood (assuming the insane to be amenable to the fear of punish- 
ment), it would act more potently as a deterring agent than any apprehension 
they might feel at the prospect of a public execution. 
“ It was the opinion of Beccaria that the impresssion made by any punish- 
ment was in proportion to its duration, and not to its intensity. ‘ Our sensi- 
bility,’ he observes, ‘is more readily and permanently affected by slight but 
reiterated attacks than by a violent but transient affection. For this reason, 
the putting of an offender to death forms a less effectual check to the com- 
mission of crimes than the spectacle of a man kept in a state of confinement, 
and employed in hard labor, to make some reparation, by his exertions, for the 
injuries he has inflicted on society.’ 
“ In judicially estimating cases of crime connected with alleged conditions 
of insanity, it is our duty always to bear in mind, that, if an error be com- 
mitted on the side of undue severity, it never can be remedied. 
“No reparation can be made for so great an injury—for so serious an act of 
injustice. If a criminal should be unjustly acquitted on the plea of insanity 
(and I admit such cases have occurred), a degree of injury is undoubtedly 
done to society, and the confidence in the equitable administration of justice 
770 BOOK I.] 
WHY OUR SYSTEM SHOULD BE REMODELLED. 
[§ 770 
is, to an extent, shaken. But can a judicial mistake like this for one moment 
be compared with the serious and fatal error of consigning an irresponsible 
creature to a cruel and ignominious death ? 
“It is well observed by Bentham that ‘the minimum of punishment is 
more clearly marked than its maximum. What is too little is more clearly 
observed than what is too much. What is not sufficient is easily seen ; but it 
is not possible so exactly to distinguish an excess. An approximation only can 
be obtained. The irregularities in the force of temptation compel the legis- 
lator to increase his punishments until they are not merely sufficient to restrain 
the ordinary desires of men, but also the violence of their desires when 
unusually excited. The greatest danger lies in an error on the minimum side, 
because in this case the punishment is inefficacious ; but this error is least likely 
to occur, a slight degree of attention sufficing for its escape ; and, when it does 
exist, it is, at the same time, clear and manifest, and easy to be remedied. 
An error on the maximum side, on the contrary, is that to which legislators 
and men in general are naturally inclined ; antipathy, or a want of compas- 
sion for individuals who are represented as dangerous and vile, pushes them 
onward to an undue severity. It is on this side, therefore, that we should 
take the most precautions, as on this side there has been shown the greatest 
disposition to err.”—Winslow's Essay on Legal Responsibility, 15 Am. Journ. 
of Insanity, p. 191. 
See also an interesting essay on Criminal Insane, Insane Transgressors, and 
Insane Convicts, by Edward Jarvis, M.D., of Dorchester, Mass., in the 13th 
volume of the Am. Journ. of Insanity, p. 195. 
771 §772] 
PSYCHICAL INDICATIONS OF CRIME. 
[book I. 
CHAPTER IY. 
PSYCHICAL INDICATIONS OF CRIME. 
§ 771. Mr. Rawlinson, as his motto to the Bampton Lectures 
of 1859, takes the following from Aristotle:— 
T9 psv yag a’KtjOsi rtavta avvdSsi ■td vTtagxovta, 19 Se Siafavei 
‘tdhrjOes. 
(foe with the tkue all things that exist aee in harmony ; BUT 
WITH THE FALSE THE TKUE AT ONCE DISAGREES.) 
This conflict between the true and false arises in all cases 
where guilt is attempted to be screened by human contrivance. 
The mind involuntarily becomes its own prosecutor. It drops 
at each point evidence to prove its guilt. Each statement that 
it makes—each subterfuge to which it resorts—each pretext 
it suggests—is a witness that it prepares and qualifies for ad- 
mission on trial. In this, and in the universality of the psy- 
chological truth that guilt cannot keep its counsel, we may 
find an attribute of divine justice by which crime is made 
involuntarily its own avenger. Man cannot conceal the topic 
of a great crime, either anticipated or committed. It some- 
times leaps out of him convulsively in dreams; sometimes a 
false cunning leads him to talk about it to know what suspi- 
cions may be afloat; sometimes that sort of madness which 
impels people to dash themselves from a high tower forces 
him to the disclosure. Even his silence tells against him; and, 
when it does not, the tremor of the body supplies the place of 
the tremor of the mind. Nor can he keep peace with his 
associates. There is a disruptive power in a consciousness of 
common guilt, which produces a hatred so demonstrative, that, 
if it does not supply the proof, it attracts the suspicion of a 
great wrong having been done. 
§ 772. It is proposed to discuss these psychical proofs of 
guilt as follows:— 
772 BOOK I.] 
PRIOR TO CRIME. 
[§ 774 
A. Prior to crime. 
(a1) Preparations, § 773. 
(S') Intimations, § 775. 
(c1) Overacting, § 781. 
B. At crime. 
(a1) Incoherence, § 782. 
(b') Self-overreaching, § 786. 
C. After crime. 
(g1) Convulsive confession, § 788. 
C) Nervous tremor, § 805. 
(c1) Morbid propensity to recur to scene and topic of guilt, 
§812. 
(d1) Permanent mental wretchedness, § 816. 
(e1) Animosity between confederates, § 823. 
A. Prior to crime. 
§ 773. The most astute here fail. Poison has to be obtained 
somewhere. For domestic purposes it might be boldly pur- 
chased ; but the poisoner, in a vast majority of cases, is impelled 
to a more circuitous course. He buys it to kill vermin, and 
then gives a false excuse—as in a case where the prisoner 
pointed to a mouse which he said was killed by the poison, 
when in fact, it turned out that the mouse was not so killed. 
He places a loaded pistol on his person on a pretext which he 
takes care to announce, but which turns out in like manner to 
be false. There is, in almost every kind of crime, a swelling 
of the upper soil which shows the subterranean road which 
the criminal travelled. It would seem as if it were a germinal 
element of guilt that it cannot work without such memorials. 
The most adroit hand may get witnesses away from the in- 
tended spot—the greatest caution may be shown in the pur- 
chasing, the collecting, or the fashioning of instruments—but 
still the traces remain, ready to increase the presumption, if 
not the positive material for conviction. 
§ 774. At the Shrewsbury races, in November, 1856, appeared 
two young men, each of whom had large stakes involved—in 
each case those of life and death. Polestar, one of the horses 
entered, belonged to John Parsons Cook; a sporting character 
and spendthrift, and not much besides. He had inherited a 
(a1) Preparations. 
773 § 774] 
PSYCHICAL INDICATIONS OF CRIME. 
[book i. 
considerable estate, but a large portion of this bad gone in 
dissipation, and now, the result of the race was to decide 
whether the remnant was to be doubled or destroyed. Watching 
him pretty closely, though with an off-hand familiarity which 
required an experienced eye to penetrate, was William Palmer, 
a man several years his senior, whose fortune, which had also 
been considerable, was now entirely gone. The “ Chicken” 
was Palmer’s horse, and on this he had ventured enormous 
bets. But he had a double game. Ruin, it is true, was immi- 
nent, but there was a method of escape. He was a medical 
man, and he had discovered the fatal properties of strychnine 
—how that it produced a disease scarcely to be distinguished 
from lock-jaw—how it could be administered without exciting 
the victim’s attention—what was the minimum dose necessary 
to take life, and how, when this dose alone was administered, 
the poison was dispersed, leaving no traces behind. He had a 
book in which these points were stated, and to make himself 
certain, he not only turned down the book at the place, but 
made a memorandum giving the substance in his note-book. 
He was a man of the world, and he made himself, without 
appearing to do so, thoroughly master not only of Cook’s con- 
fidence, but of his secrets. He knew that Cook had a disease 
which produced sores on the tongue which might be considered, 
if talked about in the right light, as the cause of lock-jaw, so 
he proceeded to tell about them in this light. He knew how 
to imitate hand-writing. So he wrote a paper by which Cook 
acknowledged himself his debtor in a sum sufficient to absorb 
all Cook’s effects. “ Polestar” won and “ Chicken” was beaten. 
Palmer, in his careless, sporting way, borrowed Cook’s win- 
nings to pay his losses. Then everything was ready to poison 
Cook, and the work was done with complete coolness and 
success. A little preliminary sickness was induced, during 
which nothing could be more kind and yet less officious than 
Palmer’s attentions. It is true the strychnine had to be bought, 
but this was done in a circuitous way, and under a false color. 
Then it had to be administered, but two medical men, of un- 
doubted probity, were called in, and, as they recommended pills, 
it was very easy to substitute pills of strychnine for pills of 
rhubarb. So Cook was killed, and this so subtly, that the 
774 BOOK I.] 
PRIOR TO CRIME. 
H 775 
attending physician gave a certificate of apoplexy. As to the 
post-mortem, Palmer knew it would not amount to much, nor 
did it. No strychnine was discovered, but here the nerves of 
Palmer gave way. He showed an undue fidgetiness while the 
examinations were going on. He tried to tamper with the 
vessels in which the parts to be examined were placed. Then, 
also, the note he produced to show Cook’s indebtedness to him 
was suspected; and then Cook’s betting book could not be 
found. This led to Palmer’s arrest. The first medical author- 
ities in England proved that Cook’s death came from strych- 
nine and nothing else. The apothecaries from whom the 
strychnine was bought, attracted by the discoveries, identified 
Palmer. In a dark passage he had been seen to drop some- 
thing into a glass for the sick man, but the passage was not so 
dark but what he was observed. Then his note-book turned 
up, showing how acquainted he was with the poison. And 
upon these facts, skilful as he was, and completely as he had 
covered up his guilt from the superficial eye, he was convicted 
and executed. 
(61) Intimations. 
§ 775. Intimations are to be tested by the character of the 
party from whom they emanate. In the present connection, 
they may be divided into three classes. 
Direct intimations are the least frequent. The coarse old 
feudal baron, over whom there was no law which would in- 
terfere to make a threat defeat itself—whose importance de- 
pended upon the emphasis with which he pursued his enemies 
—to whose temper deceit was intolerable—threatened dash- 
ingly, and performed implacably. So the Scotch clansman 
followed his hereditary vengeance until the last of the tribe 
he hated was extinguished. 
How in these cases there was neither parsimony nor insin- 
cerity in the threat, and no reserve in the execution. What 
was said was meant. It is only, however, in the rudest and 
most lawless states of society that we now find this phase. In 
a community where there is a justice of the peace, to threaten 
life is followed by a binding over to keep the peace; and such 
a threat, therefore, is rarely heard except as a bluster. Civili- 
775 §777] 
PSYCHICAL INDICATIONS OF CRIME. 
[book I. 
zation, it is true, has not extracted the venom from homicide, 
but it has muffled its rattle. 
There are cases, however, where the rattle is still heard. A 
purpose of vengeance may be whispered in a friend’s ear. 
Among men over whom there is no law, in the mountain 
slopes or prairie sweeps to which no jurisdiction except that 
of the vigilance committee has reached—among the hunters 
of the wilderness who have preceded law, or the wreckers of 
the coast who have defied it, or the outcasts of the city who 
have been rejected by it—in those cases of domestic outrage 
where social usage seems to permit vengeance being taken into 
private hands—here threats may be the precursors of deeds. 
Desperation, also, gives out the same warning; and in such 
cases the warning uttered is of real consequence. 
§ 776. Then, again, a threat which may be meant merely as 
bravado may afterwards become a real and desperate purpose. 
Provocation—opportunity—the desire to save the character 
from the imputation of mere bullying—may stiffen the attempt 
to frighten into an attempt to destroy. Or, again, a settled 
animosity may be produced, which may lead, though circuit- 
ously, to secret mischief. 
Taking out these exceptions, however, and assuming the 
case to be that of a man of ordinary prudence, where there is 
no proved settled purpose of revenge, and in a community 
where the usual restraints of the law are applied, it becomes 
very unsafe to connect threats previously uttered by such a 
party with a recent homicide. “ The tendency of such a pre- 
diction,” says Mr. Bentliam, “is to obstruct its own accomplish- 
ment. By threatening a man, you put him upon his guard, and 
force him to have recourse to such means of protection as the 
force of the law, or any extrajudicial powers which he may 
have at command, may be capable of affording him.” In the 
case last put, it is not likely that the one who really accom- 
plished a deed which would lead to condign punishment was 
the one who publicly threatened it. 
§ 777. Then, however, comes the ambuscade intimation. The 
more refined society becomes, the more likely is this kind of 
preparation to precede crime. It may be adopted to lull the 
victim. When the massacres of St. Bartholomew were planned, 
776 BOOK I.] 
[§ 778 
PRIOR TO CRIME. 
the Huguenot chiefs were invited to Paris on the pretence of 
the wedding between Henry of Xavarre and Margaret of 
Valois. “This politeness of the Italian Queen is very sus- 
picious,” said the more wary of them ; “ she kisses whom she 
would betray.” But they went, were caressed, and were 
massacred. 
The Admiral Coligny had been wounded by an assassin under 
the pay of the Duke of Guise. He lay helpless on his sick- 
bed, when Charles IX., then a boy of only nineteen, but 
thoroughly schooled by his malign mother, was announced. 
The Huguenots were thoroughly aroused by the attack on the 
admiral. The preparations for crushing them, however, were 
not then complete. It was necessary that they should be 
quieted and kept together. So Charles entered into the ad- 
miral’s chamber, and, throwing his arms around the aged war- 
rior, said, “ Father, you received the wounds, but I the sorrow.” 
Two or three nights afterwards, Coligny, hacked and helpless 
as he was, was torn from his bed and cut to pieces. Then his 
body was dragged through the streets, and at last his trunk 
was kicked about like a foot-ball in the presence and for the 
diversion of the young king, who had shortly before embraced 
it. “ Had it been the mother,” said the survivors, “ we would 
have had suspicion; but it was only the boy.” Here was the Me- 
dicean mask—the very luxury of artifice in which Catharine of 
Medicis enveloped herself when about to commit a crime ; and 
yet, from its very excess, it was a premonition. So it is that 
subtle guilt, in the very degree to which its subtlety is refined, 
gives its own warning, and at all events invokes its own retri- 
bution. For the recoil of St. Bartholomew’s night destroyed 
the House of Valois far more effectually than did the massacre 
the Huguenots. Charles IX. died only a few years after, of a 
disease in which nervous horror, if not remorse, was the prime 
agent, and so did men turn from him, even in Catholic Paris, 
that his body was deserted when on its way to the grave, and 
was followed to St. Denis by only three private gentlemen. 
His brother, Henry III., who succeeded him, was the last of 
his race. 
§ 778. Cowardice may work in the same way, from the fear 
777 § 779] 
PSYCHICAL INDICATIONS OF CRIME. 
[book i. 
of being struck back, if a face-to-face blow be attempted. So 
it was with James I.:— 
“ Willing to wound, and yet afraid to strike.” 
When he was rolling the execution of the Earl of Somerset as 
a sweet morsel in his mouth, he hung about the neck and 
slabbered over the face of that unfortunate favorite. It is not 
that he wanted to entrap—Somerset was caught already. ISTor 
did he want to prevent detection, for he afterwards never 
shrank from the moral consequence of the deed. It was merely 
because he was physically afraid to face a collision. 
Then come 'precautionary intimations. Of these the follow- 
ing may be taken as illustrations. Captain Donellan was tried 
in Warwick, in 1781, for poisoning Sir Theodosius Boughton, 
on whose estates his wife had a reversionary interest. The 
defendant had no doubt long formed a plan by which the de- 
ceased was to be removed. To exclude suspicion, the idea was 
thrown out long in advance that the latter’s health was des- 
perate—that speedy death was certain—that his imprudence 
was constantly heaping up causes upon causes to produce it. 
When Sir Thomas Overbury was in the Tower, and when 
the arrangements for his poisoning, under the direction of the 
Countess of Somerset, were made, the doctors, whom the 
countess had in pay, were careful, long before the poison took 
effect, to announce that the patient was very sick, and, indeed, 
“ past all recovery.” It was a trick to prevent surprise. 
§ 779. Then come prophetic intimations. Those who ap- 
proach a crime under the stress, either felt or assumed, of a 
supernatural decree, often move with the pomp worthy of so 
grand a mission. The muttered forebodings of the fanatic 
precede the fanatic’s blow. The assassinations of John of 
Leyden, and the assassinations of Joe Smith, were always 
ushered in by intimations, more or less obscure, that the in- 
tended victim had failed under the divine ban. Nor can we 
dismiss this as mere hypocrisy. The consciousness, though 
only partially sincere, of a supernatural impulse, cannot be 
completely repressed. The Greek tragedians felt this when 
they made those who meditated, under such an impulse, a deed 
of blood, bear witness to their awful mission by their dark 
778 BOOK I.] 
[§ 780 
PRIOR TO CRIME. 
forebodings of misery to him they would destroy. So it was 
that Clytemnestra stalked over the stage, relating to the sym- 
pathetic chorus the terrors before her eyes and the fate by 
which she was driven, and so it was that they ejaculated back 
their admiring horrors. So it was with the first Napoleon, 
with whom this sense of the supernatural was sometimes 
master, sometimes creature. He knew how to use it to over- 
reach others ; but he knew not how to use it without its some- 
times overreaching himself. In the very face of policy he 
could not always conceal within himself the decrees of destiny 
with which he supposed himself charged. Thus the death of 
the Duke d’Enghien was muttered forth by him long before 
the fatal arrest; and so before sovereign houses ceased to reign 
came the intimations of this vice-regent of destiny that the 
decree was about to issue. It was not mere threats—it was 
not ambuscade—it was the involuntary witness borne against 
itself by crime acting under the guise of fate. 
§ 780. Among the vulgar these intimations are not unfre- 
quent. Murderers, especially in the lower walks of life, are 
frequently found busy for some time previous to the act in 
throwing out dark hints, spreading rumors, or uttering pro- 
phecies relative to the impending fate of their intended vic- 
tims. Susannah Holroyd was convicted, at the Lancaster 
assizes of 1816, for the murder of her husband, her son, and 
the child of another person. About a month before commit- 
ting the crime, the prisoner told the mother of the child that 
she had had her fortune read, and that, within six weeks, 
three funerals would go from her door, namely, that of her 
husband, her son, and of the child of the person whom she was 
then addressing. And so, on the trial of Zephon, in Phila- 
delphia, in 1845, it was shown that the prisoner, who was a 
negro, had got an old fortune-teller in the neighborhood, of 
great authority among the blacks, to prophesy the death of 
the deceased.(a) 
When there is a family or local superstition, it may be in- 
voked for the same purpose. Thus Miss Blandy, when her 
preparations for poisoning her father were in progress, threw 
(a) Wh. Crim. Law, § 726. 
779 § 782] 
PSYCHICAL INDICATIONS OF CRIME. 
[book i. 
out references to the supernatural music with which the house 
was pretended to be pervaded; music which, according to tra- 
dition, betokened a death in twelve months. 
It is in these several classes of intimations, most of them 
involuntary, that we find another instance of the self-detective 
power of guilt. 
(c1) Overacting. 
§ 781. Extraordinary affection is often simulated before a 
near relative is removed by poisoning. Thus, a husband is 
reconciled to and lives with his wife whom he intends to dis- 
patch ; and a wife, as in Mrs. Chapman’s case, becomes singu- 
larly demonstrative in her public attentions to her husband. 
Mary Blandy, at the time her father was writhing under 
poisons she had herself administered, garlanded him over with 
caresses so inappropriate to his condition as to become the sub- 
ject of suspicion then, and the items of proof afterwards. So 
industrious declarations of friendliness and fairness not unfre- 
quently are thrown out prior to an assassination. 
B. At crime. 
(a1) Incoherence. 
§ 782. “Providence,” said Mr. Webster, in his speech in 
Knapp’s case, “ hath so ordained, and doth so govern things, 
that those who break the great law of Heaven by shedding 
man’s blood seldom succeed in avoiding discovery. Discovery 
must come sooner or later. A thousand eyes turn at once to 
explore every man, every thing, every circumstance, connected 
with the time and place; a thousand ears catch every whisper; 
a thousand excited minds intensely dwell on the scene, shed- 
ding all their light, and ready to kindle the slightest circum- 
stance into a blaze of discovery. ”(6) 
(b) “The detection of a forgery by the paying-teller of the Bank of the 
Republic (in 1872), was a remarkable instance of the unconscious dexterity 
which habit gives. The check appeared to be drawn by a well-known house, 
and was upon the peculiar form of blank used by that house. A teller’s eye 
learns to connect the usual writing of every dealer with the blank commonly 
used by him—its shape, color, and even texture—so that the thing becomes 
a unity in his mind, or rather to his perception. The smallest variation, 
780 BOOK I.] 
[§ 782 
AT CRIME. 
While there is on the one hand this concentration of obser- 
vation, there is an almost unlimited multiplication of points 
to be observed. The criminal stands in the position of a coun- 
try which has a coast line of indefinite extent, compelled to 
meet an adversary whose powerful and vigilant fieet com- 
mands the seas. There is this distinction, however, between 
the cases. The coast line may be broken without ruin, but 
not so the line of a criminal’s defence. A single false position 
in his plans—such, for instance, as the omission to wash off a 
blood-stain—the leaving a letter or a paper disclosing identity, 
in the room—the forgetting that snow was on the ground, by 
which footprints could be tracked—over-industry in setting 
up a sham defence—sudden forgetfulness in answering to a 
real and not a feigned name—is destruction. And yet this is 
the necessity of all who seek to cover up guilt. They are act- 
ing a part which, to be perfectly acted, requires perfect skill, 
perfect composure, perfect foresight, perfect powers of self- 
transposition. blow we all know how impossible it is for even 
the most consummate actor to be true to an assumed character 
therefore, makes a discord, and induces scrutiny. In this case, they cannot 
tell what it was that led him to examine the signature, which, although it 
proved a forgery, was so closely imitated, that a careful comparison with the 
genuine hardly justified suspicion. But he remembered that, as he took the 
check in hand, the paper seemed a little stiffer than that commonly used by 
the firm! So slight are the clues, sometimes, that lead to the discovery of 
crimes. 
“ Rogues are rarely philosophers, or they would not be rogues. The equili- 
brium of things, so nicely adjusted to universal fair-dealing, is disturbed by 
the slightest deviation from right. As, on strings stretched in every direction, 
a thrill passes to the social limit of the central offending blow, the culprit feels, 
although he may be unconscious of the feeling, that all unseen powers and 
intelligences are in league against him. By dint of self-control he may bear 
an unmoved face ; but his soul is alert and suspicious, and a whisper, a look, 
or a rustle frightens him. No cunning can effectually evade this law; the 
more artful go a little further, that is all. It is a curious fact, that in its ope- 
ration the expertest thief-taker in the world is habit—not in great things 
necessarily, but just as much in little things ; not a wise, observing, or thought- 
ful man’s habit, but even more commonly a simple man’s habit, often a child’s. 
Something is displaced without ordinary or adequate cause, and the person 
whose unconscious habit is thus violated looks twice, and the second look 
proves too much for the secrecy of the crime that broke the slight but charmed 
thread.” 
781 § 784] 
PSYCHICAL INDICATIONS OF CRIME. 
[book i. 
for an hour, and this under the tension of the stage. Yet this 
is required of a criminal constantly, in the lassitude of home, 
as well as in the excitement of public observation, in his cham- 
ber as well as in the court-house. 
§ 783. Of all the great poisoners, the most stealthy and 
feline, we have been told, was the widow Zwanziger, known 
in history by the name of her last husband, the Privy-Coun- 
cillor Ursinus, of Berlin. Madame de Brinvilliers was an 
enthusiast, who poisoned with a spread and dignity of circum- 
stances which necessarily invited detection. The widow Zwan- 
ziger, on the other hand, slid softly about from house to house 
poisoning unobtrusively. So quiet and home-like were her 
attentions to the deceased—so deep and yet so well controlled 
her grief—so completely her whole deportment that of a ten- 
der, sober, and yet undemonstrative friend, that when her 
lover, who began to be tired of her—her husband, of whom 
she began to be tired—her aunt, whose heir she was—success- 
ively sickened and died; she was the last who would have 
been suspected of having dispatched them. Yet this most 
experienced, self-disciplined, and wary of poisoners—this ac- 
tress so consummate that to the end she played the parts of the 
lady of fashion, and the sentimental and pietistic poetess, with 
a perfection that showed no flaw—was careless enough, when 
engaged in such common game as the poisoning, as if merely 
to keep her hand in, of an ordinary man-servant—to leave the 
arsenic open in a room where her intended victim, made 
curious by one or two abortive operations she had attempted 
on him, scented it out, carried it to a chemist, and established 
the fact that it was of the same character with the poison by 
which she had seasoned some prunes she had been giving to 
him for dessert. 
§ 784. Equally wary and artistic, though in a different line 
of guilt, was Fauntleroy, perhaps the most complete forger of 
modern times. He was subtle, reticent, accomplished, and 
imperturbable. In a long course of years, he perfected a sys- 
tem of forgery, by means of which he obtained the transfer of 
stocks entered in the Bank of England, in the names of various 
persons, to the amount of £100,000. Such was the thorough- 
ness of the fictitious accounts and false entries by which his 
782 BOOK I.] 
[§ 784 
AT CRIME. 
forgeries were covered up, that his partners and clerks, as well 
as the bank, were deceived,, and yet, at the very time he was 
weaving a veil otherwise impenetrable, he took the extra- 
ordinary step—a step unaccountable except on the hypothesis 
of the innate inability of the mind to act out with perfection 
any fabricated part—of keeping a private diary of his guilt, 
and executing a paper, signed with his name, and carefully 
put away among his vouchers, in which he expressly declared 
that guilt. 
Richard Crowninshield, of Salem, Massachusetts, was, in 
1830, a young man of family and education. Of dark and 
reserved deportment, quiet and self-possessed, he united a de- 
pravity and malignity of heart, which made crime natural and 
normal to him, with a courage of purpose, a temperance in 
sensual indulgence, and a sagacity and adroitness in the choice 
and in the use of means, which made crime easy. His tastes 
and temperament were such as to cover his tracks with almost 
impenetrable darkness. “Although he was often spoken of as 
a dangerous man, his person was known to few, for he never 
walked the streets by daylight. Among his few associates he 
was a leader and a despot.” 
Joseph White, a wealthy merchant, eighty-two years of age, 
was found murdered in his bed, in his mansion house, on the 
morning of the 7th of April, 1830. His servant man rose 
that morning at six o’clock, and on goirjg down into the 
kitchen and opening the shutters of the window, saw that the 
back window of the east parlor was open, and that a plank 
was raised to the window from the back yard; he then went 
into the parlor, but saw no trace of any person having been 
there. He went to the apartment of the maid-servant, and 
told her, and then went into Mr. White’s chamber by its back 
door, and saw that the door of his chamber leading into the 
front entry was open. On approaching the bed he found the 
bedclothes turned down, and Mr. White dead; his countenance 
pallid, and his night-clothes and bed drenched in blood. He 
hastened to the neighboring houses to make known the event. 
He and the maid-servant were the only persons who slept in 
the house that night, except Mr. White himself, whose niece 
783 § 784] 
PSYCHICAL INDICATIONS OF CRIME. 
[book i. 
Mrs. Beckford, his housekeeper, was then absent on a visit to 
her daughter, at Wenham. 
The physicians and the coroner’s jury, who were called to 
examine the body, found on it thirteen deep stabs, made as if 
by a sharp dirk or poniard, and the appearance of a heavy blow 
on the left temple, which had fractured the skull, but not 
broken the skin. The body was cold, and appeared to have 
been lifeless many hours. On examining the apartments of 
the house, it did not appear that any valuable articles had been 
taken, or the house ransacked for them; there was a package 
of doubloons in an iron chest in his chamber, and costly plate 
in other apartments, none of which was missing. The first 
clue obtained to the murder was by the arrest, at Hew Bed- 
ford, of a man named Hatch, who stated, when under exami- 
nation for another offence, that he had heard Crowninshield 
mutter intimations of violence towards Mr. White. Soon 
another thread was found. Mr. White was childless, and left 
as his legal representatives Mrs. Beckford his housekeeper, the 
only child of a deceased sister, and four nephews and nieces, 
the children of a deceased brother. He had executed, as was 
known in the family, a will by which he left by far the larger 
portion of his estate to Stephen White, one of the few children 
of the testator’s brother, reserving but a small legacy to Mrs. 
Beckford. A daughter of Mrs. Beckford married Joseph J. 
Knapp, Jr., who, with his brother, John Francis Knapp, were 
young shipmasters of Salem, of respectable family, the sons 
of Joseph J. Knapp, also a shipmaster. Shortly after the 
murder, the father received a letter obscurely intimating that 
the party writing the letter was possessed of a secret connected 
with the murder, for the preservation of which he demanded 
a “ loan” of three hundred and fifty dollars. This letter Mr. 
Knapp was unable to comprehend, and handed it to his son, 
Joseph J. Knapp, who returned it to him, saying he might 
hand it to a vigilance committee which had been appointed by 
the citizens on the subject. This the father did, and it led to 
the arrest of Charles Grant, the person writing the letter, who, 
after some delay, disclosed the following facts: He (Grant) had 
been an associate of R. Crowninshield, Jr., and George Crown- 
inshield; he had spent part of the winter at Danvers and 
784 BOOK I.] 
AT CRIME. 
[§ 785 
Salem, under the name of Carr, part of which time he had 
been their guest, concealed in their father’s house in Danvers; 
on the 2d of April he saw from the windows of the house 
Frank Knapp and a young man named Allen ride up to the 
house; George walked away with Frank, and Richard with 
Allen, and on their return, George told Richard that Frank 
wished them to undertake to kill Mr. White, and that J. J. 
Knapp, Jr., would pay one thousand dollars for the job. They 
proposed various modes of doing it, and asked Grant to be 
concerned, which he declined. George said the housekeeper 
would be away all the time; that the object of Joseph J. 
Knapp, Jr., was first to destroy the will, and that he could get 
from the housekeeper the keys of the iron chest in which it 
was kept. Frank called again in the same day in a chaise, 
and rode away with Richard, and, on the night of the murder, 
Grant stayed at the Halfway House, in Lynn. In the mean 
time suspicion was greatly strengthened by Joseph J. Knapp, 
Jr., writing a pseudonymous letter to the vigilance committee, 
trying to throw the suspicion on Stephen White. Richard 
Cowninshield, George Crowninshield, Joseph J. Knapp, Jr., 
and John F. Knapp, were arrested and committed for murder. 
Richard Crowninshield made an ineffectual attempt, when in 
prison, to influence Grant, who was in the cell below, not to 
testify, and, when this failed, committed suicide. John F. 
Knapp was then convicted as principal, and Joseph J. Knapp, 
Jr., as accessory before the fact. George Crowninshield proved 
an alibi, and was discharged. 
§ 785. We have here a murder cooly planned and executed 
by persons of consummate skill, and yet we find the whole 
scheme disclosed by the following incoherences:— 
a. Joseph J. Knapp, Jr., instead of retaining or destroying 
Grant’s letter, as he could readily have done, losing his presence 
of mind so far as to hand it to his father with directions to 
give it to the vigilance committee. 
b. Crowninshield, ordinarily so astute and reserved, letting 
Grant, who was not even an accomplice, and who therefore was 
not pledged by fear to silence, into the secret. 
c. All the parties basing the assassination on a mistake of 
law, they supposing that Mr. White’s representatives, in case 
vol. i.—50 
785 § 786] 
PSYCHICAL INDICATIONS OF CRIME. 
[book i. 
of his death intestate, would take per stirpes, whereas in fact 
they would take per capita ; so that actually Mrs. Beckford, to 
increase whose estate the murder was committed, received no 
more by an intestacy than she would have by the will. 
(b1) Self-overreaching. 
§ 786. The earl of .Northampton, the second son of Henry 
Howard, Earl of Surrey, was the uncle of Lady Frances 
Sussex, the wife first of the Earl of Essex, and afterwards of 
Robert Carr, the famous Earl of Somerset. Private revenge 
and state policy led this beautiful and brilliant though bad 
woman to desire the murder of Sir Thomas Overbury, who 
opposed her marriage with her second husband, and held secrets 
which might, if disclosed, thwart her political ambition. She 
procured or promoted the committal of Overbury to the Tower, 
where poison was administered to him under her direction. In 
the attempt, at least, she had as accomplices, her husband, and 
her uncle, Lord Northampton. The work was successful. The 
next effort was to conceal it. Ilelwysse, the Lieutenant of 
the Tower, was instantly to advise Lord Northampton of the 
result. This he did, and then came a letter, evidently meant 
to be confidential, from the Earl in reply:— 
“Noble Lieutenant—If the knave’s body be foul, bury it 
presently. I’ll stand between you and harm: but if it will 
abide the view, send for Lidcote, and let him see it, to satisfy 
the damned crew. When you come to me, bring me this 
letter again yourself with you, or else burn it. Northampton.” 
This was written early in the morning. So great, however, 
was the turmoil in Northampton’s mind, lest the body should 
not be got out of sight, that at noon on the same day he 
hurries off the following :— 
“Worthy Mr. Lieutenant—Let me entreat you to call 
Lidcote and three or four friends, if so many come to view the 
bod}7, if they have not already done it; and so soon as it is 
viewed, without staying the coming of a messenger from the 
court, in any case see him interred in the body of the chapel 
within the Tower instantly. 
“If they have viewed, then bury it by and by; for it is time, 
786 BOOK I.] 
AT CRIME. 
[§ 787 
considering the humors of the damned crew, that only desire 
means to move pity and raise scandal. Let no man’s instance 
cause you to make stay in any case, and bring me these letters 
when I next see you. 
“Fail not a jot herein, as you love yr friends: nor after 
Lidcote and his friends have viewed, stay one minute, but let 
the priest be ready; and if Lidcote be not there, send for him 
speedily, pretending that the body will not tarry.” 
§ 787. This had no signature, and was evidently meant for 
the eye of Helwysse alone. But what would the world say if 
the proud and great Earl of [Northampton, the “wisest among 
the noble, and the noblest among the wise,” should seem to be 
silent when officially informed of the death of one with whom 
he and Lord Rochester (the first title of Somerset) had been 
on such intimate terms? So he writes to the Lieutenant the 
following artful letter, meant for the public eye:— 
“Worthy Mr. Lieutenant—My Lord of Rochester, desiring 
to do the last honor to his dec’d friend, requires me to desire 
you to deliver the body of Sir T. Overbury to any friend of 
his that desires it, to do him honor at his funeral. Herein my 
Lord declares the constancy of his affection to the dead, and 
the meaning that he had in my knowledge to have given his 
strongest straine at this time of the Ring’s being at Tibbald’s, 
for his delivery. I fear no impediment to this honorable desire 
of my Lord’s but the unsweetness of the body, because it was 
reputed that he had some issues, and, in that case, the keeping 
of him above must needs give more offence than it can do 
honor. My fear is, also, that the body is already buried upon 
that cause whereof I write; which being so, it is too late to 
set out solemnity. 
“ This, with my kindest commendations, I ende, and reste 
“Your affectionate and assured friend, 
“II. [Northampton. 
“ P. S. Yon see my Lord’s earnest desire, with my concurring 
care, that all respect he had to him that may be for the credit 
of his memory. Put yet I wish, withal, that you do very 
discreetly inform yourself whether this grace hath been 
afforded formerly to close prisoners, or whether you may grant 
787 § 788] 
PSYCHICAL INDICATIONS OF CRIME. 
[BOOK I 
my request in this case, who speak out of the sense of my 
Lord’s affection, though I be a counsellor, without offence or 
prejudice. For I would be loth to draw either you or myself 
into censure, now I have well thought of the matter, though 
it be a work of charity.”(c) 
Unfortunately for the success of the plot, both sets of letters 
were preserved; and their inconsistency formed one of the 
chief presumptions in the remarkable trials that ensued. 
C. After crime. 
(a1) Convulsive confession. 
§ 788. “The guilty soul,” said Mr. Webster, in a speech 
already quoted, “ cannot keep its own secret. It is false to 
itself; or rather it feels an irresistible impulse of conscience to 
be true to itself. It labors under its guilty possession, and 
knows not what to do with it. The human heart was not 
made for the residence of such an inhabitant. It finds itself 
preyed on by a torment, which it dares not acknowledge to 
God or man. A vulture is devouring it, and it can ask no 
sympathy or assistance, either from heaven or earth. The 
secret which the murderer possesses soon comes to possess him; 
and, like the evil spirits of which we read, it overcomes him, 
and leads him whithersoever it will. He feels it beating at 
his heart, rising to his throat, and demanding disclosure. He 
thinks the whole world sees it in his face, reads it in his eyes, 
and almost hears its workings in the very silence of his 
thoughts. It has become his master. It betrays his discre- 
tion, it breaks down his courage, it conquers his prudence. 
When suspicions from without begin to embarrass him, and 
the net of circumstance to entangle him, the fatal secret 
struggles with still greater violence to burst forth. It must 
be confessed, it will be confessed; there is no refuge from con- 
fession but suicide, and suicide is confession.” 
Confessions that are voluntary are out of the range of the 
present discussion. Of those that are involuntary or convul- 
sive we may take the following illustrations:— 
(c) Amos’s Great Oyer, 173, etc. 
788 BOOK I.] 
AFTER CRIME. 
[§ 789 
§ 789. John Whitney, a wealthy farmer of Loudonville, 
Ohio, was robbed and murdered in November, 1856. Great 
hut unsuccessful efforts were made to ferret out the murderer. 
A man named Stringfellow, who was living at Loudonville at 
the time, was strongly suspected of the crime, but nothing 
could be fastened upon him. Stringfellow soon afterwards 
left the neighborhood, and, after an absence of two years, 
settled in the village of Johnstown, Hardin County. Here he 
was taken sick, and in his illness became delirious. It would 
seem that conscience was constantly at work within him, for 
during his delirium he mentioned Whitney’s name frequently, 
and divulged a number of secrets which had been long hidden 
in his bosom, and which left not the shadow of a doubt but 
that he was a blood-guilty man. After Stringfellow became 
convalescent, he was told of the guilty secrets he had laid 
bare: the murder was charged upon him, and he was placed 
under surveillance. 
Here is murder confessed in delirium. Cases of confes- 
sion in dreams are more numerous. A person who worked 
in a brewery at Basle, in Switzerland, quarrelled with a fellow- 
workman, and struck him in such a manner as to produce in- 
stant death. He then took the dead body and threw it into a 
large fire under the boiling vat, where it was in a short time 
so completely consumed that no traces of its existence re- 
mained. On the following day, when the man was missed, the 
murderer observed that he had seen his fellow-servant intoxi- 
cated, and that he had probably been drowned in crossing a 
bridge which lay on his way home. For seven years after no 
one entertained any suspicion as to the real state of the case. 
At the end of this time, the murderer, being again employed 
in the same brewery, was constantly reflecting on the singu- 
larity of the circumstance that his crime had been so long 
concealed. One night one of his fellow-workmen, who slept 
with him, hearing him say in his sleep, “ It is now fully seven 
years ago,” asked him, “ What was it you did seven years 
ago?” “I put him,” he replied, still speaking in his sleep, 
“under the boiling vat.” As the affair was not entirely for- 
gotten, the man, suspecting that his bed-fellow might allude 
to the person who was missed about that time, informed a 
789 §791] 
PSYCHICAL INDICATIONS OF CRIME. 
[book i. 
magistrate of what he had heard. The murderer was appre- 
hended, and, though at first denying all knowledge of the 
matter, afterwards confessed and was executed. 
§ 790. That guilt takes the dreaming state as a peculiar site 
for the exercise of its retributive retrospections, is a familiar 
psychological fact. “If,” said Pascal, “we dreamt every 
night of the same thing, it would perhaps afiect us as power- 
fully as the objects which we perceive every day.” “ Dreams,” 
was the comment of Sir W. Hamilton, “ have frequently a de- 
gree of vivacity which enables them to compete with the 
reality.” And a keen observer of the human mind—one whose 
keenness is not made the less remarkable by the fact that he was 
both the tenderest and most humorous poet of his day—has given 
us a vivid picture of the misery which marks this form of 
remorse:— 
“ Her sleep was restless and broken still; 
For turning often and oft 
From side to side, she muttered and moaned, 
And tossed her arms aloft. 
“At last she started up, 
And gazed on the vacant air, 
With a look of awe, as if she saw 
Some dreadful phantom there ; 
And then in the pillow she buried her face 
From visions ill to bear.”(<Z) 
ISTow, on confessions emitted when in this troubled state, not 
a few criminal processes have been made to depend. One well- 
known case is referred to, in another relation, elsewhere. A 
peddler was murdered. All attempts to discover the assassin 
failed. At last a wayfaring man, who had been strolling about 
the neighborhood, dreamed that the body would be found in 
a particular spot, and that certain persons with whom he had 
lately been sleeping in a barn were the guilty parties. It 
turned out that this was true. But it also turned out that the 
dreamer had, in his own dreams, heard the convulsive confes- 
sions of one of the assassins, the latter also dreaming. 
§ 791. Before, however, a confession should be taken as real, 
it should be subjected to certain psychological tests. Delusion; 
((?) See Hood’s Lady’s Dream. 
790 BOOK I.] 
AFTER CRIME. 
[§ 793 
a morbid desire to attract attention; a sort of epidemic which 
sometimes strikes down whole classes with a passionate im- 
pulse to insist upon some blood-stain on the conscience, some- 
thing like the hypochondriac epidemic impulse which insists 
upon some personal abnormity ;(e) weariness of life; a propen- 
sity to self-destruction through a channel which from its very 
tortuousness possesses its own fascination; a Lara-like desire 
to appear mysterious and dark, though in this case the pro- 
pensity exudes in vague intimations of participation in 
“Nameless deeds of guilt” 
rather than in confessions of specific offences;—the existence 
of such elements as these should be inquired into before a 
confession is received as absolute. 
§ 792. Delusions, either sane or insane, have produced many 
false confessions.(/) A very singular illustration of the first 
has lately been revived before the American public, and has 
already been more than once cited. Two brothers, named 
Boorn, living in Vermont, had an altercation with their 
brother-in-law, a man named Colvin, a partial lunatic. They 
left him, as they may well have supposed, in a dying state. 
He crawled off, however, and fled to the middle States. Several 
years afterwards, suspicion was excited by a dream of an uncle 
of the supposed murderers. In this dream he was told that 
Colvin had been murdered, and that his remains would be 
found in a spot that was pointed out. The dream was repeated 
three times until at last the place was searched, and some 
articles of clothing were found which were identified as Col- 
vin’s. Then a spaniel, connected in some way with the Colvin 
family, was seen snuffing uneasily about the spot close by, 
calling attention to it by his importunities. It, too, was ex- 
amined, and a cluster of bones were drawn up by the dog’s 
paw. That these were Colvin’s, and that these almost mira- 
culous interpositions were designed to bring the murder out, 
there were none in the community who doubted. 
§ 793. Other circumstances led to the arrest of the Booms. 
(<?) We liave an illustration of the latter in a convent of nuns, near Cha- 
lons, who were stricken down with the belief that they were cats. 
(/) See supra, § 200 b. 
791 § 794] 
PSYCHICAL INDICATIONS OF CRIME. 
[book i. 
They were conscious of guilt, and it is no wonder that these 
strange prosecutors, who after so long an interval had united 
by means so extraordinary to ferret out their guilt, should have 
impressed them with a belief that it was vain to fight against 
what seemed to be Divine vengeance. So one of them con- 
fessed the murderous assault, and went on further to state how, 
in order to evade detection, the body had been partially burned, 
and the clothes destroyed. The first part of the story was 
true. The last was a fabrication, the result either of delusion 
or of desperation, or of that impulse to complete a story with 
which the imagination is sometimes seized. That the actual 
death was indeed false, was shown by the subsequent appear- 
ance of Colvin himself, in time to intercept the execution of 
at least one of his supposed murderers. 
But a still more singular confession followed. The first was 
in 1819. In 1860, a very old man named Boorn was arrested 
in Cleveland for counterfeiting. When in custody, he con- 
fessed that forty years before he had been concerned in a 
murder, and escaped by a false personation of the deceased. 
The confession led to a re-investigation of the former trial. 
That the second confession, as well as the first, was a delusion, 
was established finally. But the retention of this delusion 
for forty years in the criminal’s breast shows the enduring 
effect on the nervous system of the guilt of blood, even though 
that guilt was not consummated. 
§ 794. Perhaps the same hypothesis will explain a class of 
cases which have recently been revived in the public atten- 
tion.(y) Prominent among these is what was long called the 
(y) See Blackwood’s Magazine, July, 1860, p. 54 ; Journ. Psyc. Med. 1871, 
p. 357 ; supra, § 2005, note q. 
Lamon’s Life of Lincoln (1872), p. 318, gives the following letter from Mr. 
Lincoln:— 
“Springfield, June 19, 1841. 
“Dear Speed: We have liad the highest state of excitement here for a 
week past that our community has ever witnessed ; and although the public 
feeling is somewhat allayed, the curious affair which aroused it is very far 
from being over yet, cleared of mystery. It would take a quire of paper to 
give you anything like a full account of it, and I, therefore, only propose a 
brief outline. 
“ The chief personages in the drama are Archibald Fisher, supposed to be 
792 BOOK I. 
AFTER CRIME. 
[§ 794 
Campden Wonder. An old man, named William Harrison, 
steward to Lady Campden, went out on foot on the 16th of 
murdered, and Archibald Trailor, Henry Trailor, and William Trailor, sup- 
posed to have murdered him. The three Traitors are brothers. The first, 
Archibald, as you know, lives in town ; the second, Henry, in Clary’s Grove ; 
and the third, William, in Warren County ; and Fisher, the supposed mur- 
dered, being without a family, had made his home with William. On Satur- 
day evening, being the 29th of May, Fisher and William came to Henry’s in 
a one-horse dearborn, and there staid over Sunday ; and on Monday all three 
came to Springfield (Henry on horseback), and joined Archibald at Myers’s, 
the Dutch carpenter. That evening at supper Fisher was missing, and so next 
morning some ineffectual search was made for him; and on Tuesday, at 1 
o’clock P. M., William and Henry started home without him. In a day or 
two Henry and one or two of his Clary Grove neighbors came back for him 
again, and advertised his disappearance in the papers. 
“The knowledge of the matter thus far had not been general, and here it 
dropped entirely till about the 10th inst., when Keys received a letter from 
the postmaster in Warren County, that William had arrived at home, and was 
telling a very mysterious and improbable story about the disappearance of 
Fisher, which induced the community there to suppose he had been disposed 
of unfairly. Keys made this letter public, which immediately set the whole 
town and adjoining county agog. And so it has continued until yesterday. 
“The mass of the people commenced a systematic search for the dead body, 
while Wickersham was dispatched to arrest Henry Trailor at the Grove, 
and Jim Maxcy to Warren to arrest William. On Monday last Henry 
was brought in, and showed an evident inclination to insinuate that he knew 
Fisher to be dead, and that Archibald and William had killed him. He 
said he guessed the body could be found in Spring Creek, between the 
Beardstown Road and Hickox’s mill. Away the people swept like a herd 
of buffalo, and cut down Hickox’s mill-dam nolens volens, to draw the water 
out of the pond, and then went up and down, and down and up the creek, 
fishing and raking, and raking and ducking, and diving for two days ; and, 
after all, no dead body found. In the mean time a sort of a scuffling-ground 
had been found in the brush in the angle or point where the road leading into 
the woods past the brewery and the one leading in past the brick grove meet. 
From the scuffle-ground was the sign of something about the size of a man 
having been dragged to the edge of the thicket, where joined the track of 
some small wheeled carriage drawn by one horse, as shown by the road-track. 
The carriage track led off towards Spring Creek. Near this drag-trail, Dr. 
Merryman found two hairs, which, after a long scientific examination, he 
pronounced to be triangular human hair, which term, he says, includes within 
it the whiskers, the hair growing under the arms, and on other parts of the 
body ; and he judged that these two were of the whiskers, because the ends 
were cut, showing that they had flourished in the neighborhood of the razor’s 
operations. 
“ On Thursday last Jim Maxcy brought in William Trailor from Warren. 
On the same day Archibald was arrested, and put in jail. Yesterday (Fri- 
793 794 
PSYCHICAL INDICATIONS OF CRIME. 
[book i. 
August, 1660, to collect rents. He did not return at his usual 
hour, and his wife sent his servant, John Perry, to inquire after 
day) William was put upon Ms examining trial before May and Lavely; 
Archibald and Henry were both present. Lamborn prosecuted, and Logan, 
Baker, and your humble servant defended. A great many witnesses were in- 
troduced and examined, but I shall only mention those whose testimony seemed 
most important. The first of these was Capt. Ransdell. He swore that, 
when William and Henry left Springfield for home on Tuesday before men- 
tioned, they did not take the direct route, which, you know, leads by the 
butcher-shop ; but that they followed the street north until they got opposite, 
or nearly opposite, May’s new house, after which he could not see them 
from where he stood; and it was afterwards proved, that, in about an hour 
after they started, they came into the street by the butcher’s shop from to- 
wards the brick-yard. Dr. Merryman and others swore to what is stated 
about the scuffle-ground, drag-trail, whiskers, and carriage tracks. 
“ Henry was then introduced by the prosecution. He swore that when they 
started for home, they went out north, as Ransdell stated, and turned down 
west by the brick-yard into the woods, and there met Archibald ; that they 
proceeded a small distance further, when he was placed as a sentinel to watch 
for and announce the approach of any one that might happen that way ; that 
William and Archibald took the dearborn out of the road a small distance to 
the edge of the thicket, where they stopped, and he saw them lift the body of 
a man into it; that they moved off with the carriage in the direction of Hick- 
ox’s mill, and he loitered about for something like an hour, when William 
returned with the carriage, but without Archibald, and said that they had 
put him in a safe place ; that they went somehow, he did not know exactly 
how, into the road close to the brewery, and proceeded on to Clary’s Grove. 
He also stated that some time during the day William told him that he and 
Archibald had killed Fisher the evening before; that the way they did it was 
by him (William) knocking him down with a club, and Archibald then chok- 
ing him to death. 
“An old man from Warren, called Dr. Gilmore, was then introduced on the 
part of the defence. He swore that he had known Fisher for several years, that 
Fisher had resided at his house a long time at each of two different spells ; once 
while he built a barn for him, and once while he was doctored for some chronic 
disease ; that two or three years ago Fisher had a serious hurt in his head by 
the bursting of a gun, since which he had been subject to continued bad health, 
and occasional aberration of mind. He also stated that on last Tuesday, being 
the same day that Maxcy arrested William Trailor, he (the doctor) was from 
home in the early part of the day, and on his return, about 11 o’clock, found 
Fisher at his house in bed, and apparently very unwell; that he asked him 
how he had come from Springfield ; that Fisher said he had come by Peoria, 
and also told of several other places he had been at, more in the direction of 
Peoria, which showed that he at the time of speaking did not know where he 
had been wandering about in a state of derangement. He further stated, that 
in about two hours he received a note from one of the Trailor’s friends, ad- 
vising him of his arrest, and requesting him to go on to Springfield as a wit- 
794 BOOK I.] 
AFTER CRIME. 
[§ 794 
him. Perry, according to liis own account, wandered about 
during the night without finding his master. The next 
morning, however, a hat and comb much hacked and cut, and 
a band stained with blood, which had been worn by Harrison 
the evening before, were found in a wild spot, near a large 
furze brake, where he would have been likely to have been 
met by Perry. The neighborhood naturally enough jumped 
at the conclusion that Harrison was murdered, and that Perry 
was the murderer. Perry soon came to this conclusion too, 
and made a confession to this effect, implicating his brother 
and mother. The trial took place, and, though there was no 
proof of the corpus delicti, the mother and the two sons were 
convicted and executed. Some years afterwards Harrison 
reappeared at Campden, stating that he had been robbed by 
ness, to testify as to the state of Fisher’s health in former times; that he im- 
mediately set off, calling upon two of his neighbors as company, and riding 
all evening and all night, overtook Maxcy and William at Lewistown in Fulton 
County. That Maxcy refusing so discharge Trailor upon his statement, his 
two neighbors returned, and he came on to Springfield. Some question being 
made as to whether the doctor’s story was not a fabrication, several acquaint- 
ances of his (among whom was the same postmaster who wrote to Keys as 
before mentioned) were introduced as a sort of compurgators, who swore that 
they knew the doctor to be of good character for truth and veracity, and 
generally of good character in every way. 
“ Here the testimony ended, and the Trailors were discharged, Archibald 
and William expressing, both in word and manner, their entire confidence 
that Fisher would be found alive at the doctor’s by Galloway, Mallory, and 
Myers, who a day before had been dispatched for that purpose; while Henry 
still protested that no power on earth could ever show Fisher alive. Thus 
stands this curious affair. 
“ When the doctor’s story was first made public, it was amusing to scan and 
contemplate the countenances, and hear the remarks of those who had been 
actively engaged in the search for the dead body; some looked quizzical, 
some melancholy, and some furiously angry. Porter, who had been very 
active, swore he always knew the man was not dead, and that he had not 
stirred an inch to hunt for him. Langford, who had taken the lead in 
cutting down Hickox’s mill-dam, and wanted to hang Hickox for objecting, 
looked most awfully woebegone; he seemed the ‘ wictim of Tiunrequited 
affection,’ as represented in the comic almanacs we used to laugh over. And 
Hart, the little drayman that hauled Molly home once, said it was too damned 
bad to have so much trouble, and no hanging after all. I commenced this 
letter yesterday, since which I received yours of the 13th. I stick to my pro- 
mise to come to Louisville. Nothing new here, except what I have written.” 
See also 4 West. Law Journ. 25 ; Wh. Cr. Law, 683. 
795 § 795] 
PSYCHICAL INDICATIONS OF CRIME. 
[book i. 
two horsemen on the night in question, and then kidnapped 
beyond seas. 
§ 795. So much for sane delusions. Somewhere between 
sane and insane delusions, may be classed those of witches. 
So far as concerns the spiritual sin, they had no doubt a foun- 
dation of fact. The loosest deist will admit that there are 
exterior agencies, in the shape of temptations, which assault 
the human heart, and with which it is a sin to tamper. The 
Christian ascribes these temptations to the direct agency of 
Satan. Now let us suppose the temptation of jealousy. A 
rival is hated, and his death vehemently agonized for. Here 
is a positive sin of the heart. Let the law ascribe this—as the 
common law did and does—to the instigation of the devil; 
and let a tampering with this temptation, as a sort of com- 
merce with the evil one, be made a specific offence, as it once 
was. And add to this the spites arising from the petulance 
of old age. Here you have a series of subjective crimes which 
may be confessed with truth. 
But the witches did not stop here. They confessed to all 
sorts of consequential overt acts. Their machinations had 
taken effect. Infants had melted atvay before their evil eye, 
as wax before the fire. The old had withered and wrinkled 
as the same glance fell on them. Hearts which loved were 
alienated; hearts that believed were made to curdle in unbelief. 
Mothers dropped their untimely fruit. The warrior’s courage 
forsook him in battle. Cattle took sick, and pains, through 
the witches’ magic, tore and wrung the frames of those who 
crossed the witches’ path. 
Now many of these confessions were the result of mere 
insanity. But it would be wrong, however, not to recognize 
in others of them incidents of that divine economy which 
makes a superstitious foreboding, and sometimes a mono- 
maniac realization of the consequences of crime, one of the 
results of the criminal conception. The mind that revels in 
intended guilt is apt, in the delirium of remorse, if it be not 
in the development of the imagination under the fever of a 
wounded conscience, to see the consequences which that guilt 
would have produced. There is never an entire orphanage of 
the deed from the intent. There are few who cannot recall 
796 BOOK I.] 
AFTER CRIME. 
[§ 796 
waking in an agony of terror at the picture brought before 
them in a dream, of the consummation of some unlawful pur- 
pose. They dreamed they did the thing over which they were 
brooding, but from which they were held back by want of 
opportunity or fear of consequences. 
§ 796. Hawthorne thus vividly portrays this phenomenon:— 
“ In the depths of every heart, there is a tomb and a dun- 
geon, though the lights, the music, and revelry above may cause 
us to forget their existence, and the buried ones or prisoners 
whom they hide. But sometimes, and oftenest at midnight, 
those dark receptacles are flung wide open. In an hour like 
this, when the mind has a passive sensibility, but no active 
strength ; when the imagination is a mirror, imparting vivid- 
ness to all ideas, without the power of selecting or controlling 
them; then pray that your griefs may slumber, and the brother- 
hood of remorse not break their chain. It is too late! A 
funeral train comes gliding by your bed, in which Passion and 
Feeling assume bodily shape, and things of the mind become 
dim spectres to the eye. There is your earliest sorrow, a pale 
young mourner, wearing a sister’s likeness to first love, sadly 
beautiful, with a hallowed sweetness in her melancholy features, 
and grace in the flow of her sable robe. Hext appears a shade 
of ruined loveliness, with dust among her golden hair, and her 
bright garments all faded and defaced, stealing from your 
glance with drooping head, as fearful of reproach; she was 
your fondest Hope, but a delusive one; so call her Disappoint- 
ment now. A sterner form succeeds, with a brow of wrinkles, 
a look and gesture of iron authority; there is no name for him 
unless it be Fatality, an emblem of the evil influence that rules 
your fortune; a demon to whom jmu subjected yourself by 
some error at the outset of life, and were bound his slave for- 
ever, by once obeying him. See! those fiendish lineaments 
graven on the darkness, the writhed lip of scorn, the mockery 
of that living eye, the pointed finger touching the sore place 
in your heart! Do you remember any act of enormous folly, 
at which you blush, even in the remotest cavern of the earth ? 
Then recognize your Shame. 
“ Pass, wretched band ! "Well for the wakeful one, if, riot- 
ously miserable, a fiercer tribe do not surround him, the devils 
797 § 798] 
PSYCHICAL INDICATIONS OF CRIME. 
[book i. 
of a guilty heart, that holds its hell within itself. What if 
remorse should assume the features of an injured friend ? 
What if the fiend should come in woman’s garments, with a 
pale beauty amid sin and desolation, and lie down by your 
side? What if he should stand at your bed’s foot, in the 
likeness of a corpse, with a bloody stain upon the shroud ? 
Sufficient without such guilt is this nightmare of the soul; 
this heavy, heavy sinking of the spirits; this wintry gloom 
about the heart; this indistinct horror of the mind, blending 
itself with the darkness of the chamber.” 
§ 797. Poets, who have observed human nature the most 
closely, and this not from its religious side, have recognized, in 
mere unexecuted guilt, this retributive energy. Shakspeare 
makes Cardinal Beaufort, when dying, collect these phantoms 
of undeveloped purposes. Hood, in one of the most exquisite 
of his poems, a poem which has been already noticed, describes 
to us a lad}’- of refinement and elegance, whose sins had been 
those of mere omission—who had dressed in silk and satin, and 
fed on the dainties of the land, and whose hardness consisted 
merely in a neglect to look after the poor—as writhing in a 
dream at the sight of the crowd of miserable outcasts whom 
she might have relieved but did not. It may have been that 
many of these vivid and awful confessions of the witches were 
produced, though with a greater self-deceiving power, by the 
same influence. A fevered conscience in both cases was at 
work. The witch, however, threw the phantom outward, on 
the canvas, as it were, of a magic lantern, until it became a 
reality ; with others, who were more enlightened, or who have 
less deliberately and persistently indulged in the conception of 
the crime, the phantom was thrown inwards, and was detected 
as a phantom, though perhaps at the same time as a rebuke. 
But the witch believed in thefact, and confessed it. 
§ 798. How the policy which permitted the execution of 
these poor wretches, without proof of a corpus delicti, was no 
doubt barbarous and wrong. But this should not lead us to 
refuse to recognize as a part of the divine economy of rewards 
and punishments, this very self-punishing incident of that 
criminal purpose on which the mind lias consciously and de- 
terminedly revelled. The intent brings its phantom conse- 
798 BOOK I.] 
AFTER CRIME. 
[§ 798 
quences with it. Sometimes they continue phantoms, but 
they do not the less torture or degrade the mind they haunt. 
They may torture it by the presence of a tribe of avenging 
shades, or they may degrade it by introducing into it a pro- 
geny of foul and polluted consciousnesses. The monastic 
system has brought many witnesses to this. So it was with 
the phantoms of sensuality of Jerome, and the phantoms of 
pride of Simon Stylites. Wilkie, in one of his drawings, 
brings before us—and no one who has studied it can forget it 
—a copy of a Spanish picture, where a young monk, feverish 
and macerated with the internal gnawings of a brood which 
had been hatched in his heart in the heat of mere permitted 
conceptions—appeals for pity and solace to an aged confessor; 
and the agonized expression of the suppliant, and the sad, wise 
sympathy of the confessor, tell the story but too plainly. But 
the story is not one of the confessional alone, but of every 
heart which, before whatever throne, pours forth the burden 
of the sin of pampered desire. And every lunatic asylum 
bears witness to the same fact in the cases of imbecility in 
which unexecuted purposes of sin—purposes which had only 
been thought over, but at the same time nursed—are babbled 
out, and with all their coarse consequences told by the tongue 
of age. The muscular hand of youth kept the curtain down, 
and the secret though nourished sin was thus concealed. But 
when the power of self-restraint weakened—when the cords 
and rings of the curtain decayed—then the secluded con- 
tents of the heart—these unexecuted sins, now exhaling 
phantoms by their very exposure—rise and spread themselves 
in their deformity before the public gaze. Sometimes overt 
acts follow, and we hear of sudden falls in old and heretofore 
correct men—falls, however, which were not sudden, for there 
were back-stairs in the heart down which the culprit had been 
for years descending. Sometimes the act is one of imagination 
only, but is talked out in the gross familiarity of senility. 
But, however this phenomenon may exhibit itself, it is a part 
of that grand system of Providence, by which guilt is lodged 
in the intent, and by which, as a compensation for human law, 
which judges of the overt acts alone, the intent incloses in 
itself its own retribution. The thing is patent in the history 
799 § 799] 
PSYCHICAL INDICATIONS OF CRIME. 
[BOOK I. 
of society, and is meant to be so, as a mark of the divine pur- 
pose—as a deterrer—as an avenger—as an element to be re- 
ceived into consideration in adjusting the balance of human 
jurisprudence. 
§ 799. But there are cases in which these delusive con- 
fessions may be the offspring of pure mania, though in such 
the delusion must be proved by the mania, not the mania by 
the delusion. Bunyan speaks of such a case, half pityingly, 
half doubtingly:— 
“ Since you are entered upon stories, I also will tell you one, 
the which, though I heard it not with my own ears, yet my 
author I dare believe. It is concerning one old Tod, that was 
hanged about twenty years ago or more, at Hartford, for being 
a thief. The story is this: At a summer assize holden at 
Hai'tford, while the judge was sitting upon the bench, comes 
this old Tod into the court, clothed in a green suit, with his 
leathern girdle in his hand, his bosom open, and all in a dung 
sweat as if he had run for his life; and being come in, he spake 
aloud as follows: lMy lord,’ said he, ‘here is the veryest rogue 
that breathes upon the face of the earth ; I have been a thief from a 
child; when I was but a little one I gave myself to rob orchards, 
and to do other such like wicked things, and I have continued a 
thief ever since. My lord, there has not been a robbery committed 
this many years, within so many miles of this place, but I have 
either been at it or privy to it.’ The judge thought the fellow 
was mad ; but after some conference with some of the justices 
they agreed to indict him, and so they did, of several felonious 
actions; to all of which he heartily confessed guilty, and so 
was hanged with his wife at the same.” 
“ I murdered my wife, some years ago,” says the inmate of 
an insane asylum to a visitor. “ It is necessary that I should 
be placed here in confinement.” And then the supposed 
murderer goes on to relate with great equanimity and circum- 
stantiality the details of the murder. But the wife was not 
murdered at all, and is still alive. 
So the publication of a conspicuous homicide is apt to gene- 
rate a series of pretenders to the honor of being the perpetrator. 
Why should there not be several Charlotte Cordays among 
a thousand patients, as well as several Robespierres ? 
800 BOOK I.] 
AFTER CRIME. 
[§ 801 
§ 800. Then comes the epidemic confession—the strangest 
of all. We have several instances of this in the German 
monkish chronicles of the twelfth and thirteenth centuries. 
True purposes, as well as feigned facts, are often thus con- 
fessed. Whole communities, acting under that singular 
fascination which mind in the aggregate often acquires over 
mind in the individual, have thus come forward in sackcloth 
and ashes and accused themselves sometimes falsely of the act, 
sometimes perhaps truly of the intent. Nor are these epi- 
demics peculiar to a superstitious age. Dr. Southwood Smith, 
in his lectures on Forensic Medicine, brings an instance in 
the present century. Captain Pigot, during the naval strug- 
gles between France and England under the empire, com- 
manded the Hermione frigate. A mutiny took place, and he 
and a portion of his officers were murdered very barbarously. 
“ One midshipman escaped, by whom many of the criminals, 
who were afterwards taken and delivered over to justice, one 
by one, were identified. Mr. Finlaison, the government 
actuary, who at that time held an official situation at the 
admiralty, states: ‘ In my own experience I have known, on 
separate occasions, more than six sailors who voluntarily con- 
fessed to having struck the first blow at Captain Pigot. These 
men detailed all the horrid circumstances of the mutiny with 
extreme minuteness and perfect accuracy; nevertheless not one 
of them had ever been in the ship, nor had so much as seen 
Captain Pigot in their lives. They had obtained by tradition 
from their mess-mates the particulars of the story. When 
long on a foreign station, hungering and thirsting for home, 
their minds became enfeebled ; at length they actually believed 
themselves guilty of the crime over which they so long brooded, 
and submitted with a gloomy pleasure to being sent to England 
in irons for judgment.’ ” 
§ 801. Then comes that morbid vanity which takes self- 
crimination as a way of obtaining notoriety. Hypochondria 
sometimes mixes with this. Persons whose temperament has 
become thus touched will resort to the most desperate methods 
to attract attention. The most innocent type that we have is 
that of the sentimentalist, who feigns certain mental expe- 
riences of a peculiarly poignant character; which experiences 
vol. I.—51 
801 § 802] 
PSYCHICAL INDICATIONS OF CRIME. 
[book i. 
are hung out something in the way pictures are in a gallery, 
to excite the interest of the amateur. Of course the more lurid 
the coloring, and the more sad the sorrow it depicts, the more 
real the sympathy to be secured from an honest and kind- 
hearted observer, and the more profuse the ejaculations of the 
mere co-sentimentalist. 
Next facts are fabricated as well as experiences. Thus Che- 
rubina believes that she was changed in the cradle, and that 
an earl and countess are her parents, instead of the old farmer 
and his wife who brought her up. This big lie, of course, 
necessitates a myriad of minor ones, to enable it to be carried 
about with a proper retinue, until Cherubina’s whole life 
becomes a fabrication. If guilt has to be confessed, to make 
up a consistent story, confessed guilt is. 
Persecutions with such are favorite myths. Margaret Ful- 
ler, whose attitudes and surroundings, in spite of her apparent 
earnestness, were all pictorial and artificial, made the neglect 
she suffered from her father one of the favorite topics in her 
letters, though even her editor, laudatory as he is, is forced to 
tell us that all this neglect was imaginary—that a kinder or 
truer father did not exist. It is still doubtful whether Caspar 
Hauser’s wounds were not self-inflicted and his dumbness self- 
assumed. And it is certain that the more tender the care be- 
stowed on such cases is, and the more confiding the sympathies, 
the more frequent and subtle the simulation. 
§ 802. But if the flag by which this attention is to be 
roused is inscribed among the more refined with a sentiment, 
among the coarser it is likely to be blazoned with a crime. 
Lord Cockburn, in his memoirs, gives us the following instance 
of this:— 
“On the 18th of November, 1806, a murder was committed 
in Edinburgh, which made a greater impression than any com- 
mitted in our day, except the systematic murders of Burke. 
James Begbie, porter to the English Linen Company’s Bank, 
was going down the close in which the bank then was, on the 
south side of the Canongate, carrying a parcel of bank-notes 
of the value of four or five thousand pounds, when he was 
struck dead by a single stab, given by a single person who had 
gone into the close after him, and who carried off the parcel. 
802 BOOK I.] 
AFTER CRIME. 
[§ 802 
This was done in the heart of the city, about five in the eve- 
ning, and within a few yards of a military sentinel, who was 
always on guard there, though not exactly at this spot, and at 
the moment possibly not in view of it. Yet the murderer was 
never heard of. The soldier saw and heard nothing. All that 
was observed was by some boys who were playing at hand 
ball in the close; and all that they saw was that two men 
entered the close as if together, the one behind the other, and 
that the front man fell, and lay still; and they, ascribing this 
to his being drunk, let him lie, and played on. It was only 
on the entrance of another person that he was found to be 
dead, with a knife in his heart, and a piece of paper, through 
which it had been thrust, interposed between the murderer’s 
hand and the blood. The skill, boldness, and success of the 
deed produced deep and universal horror. People trembled at 
the possibility of such a murderer being in the midst of them, 
and taking any life that he chose. But the wretch’s own 
terror may be inferred from the fact that in a few months the 
large notes, of which most of the booty was composed, were 
found hidden in the grounds of Bellevue. Some persons were 
suspected, but none on any satisfactory ground; and, accord- 
ing to a strange craze or ambition not unusual in such cases, 
several charged themselves with the crime, who, to#n absolute 
certainty, had nothing to do with it.” 
Then come confessions from very weariness of life— 
“I am foot-sore, and very weary, 
And I travel to meet a friend.” 
That friend is death, and the frame of mind which thus seeks 
it is very apt to engender phantoms of blood-guiltiness which 
soon appear as realities. Thus, cases have not been unfrequent 
where women, deserted by those in whom they trusted, and 
sick of living, have accused themselves, and this perhaps sin- 
cerely though falsely, of the murder of infants whom they 
never bore, or who died naturally. By one, who was thus 
life-weary, was the whole scene described with the most touch- 
ing minuteness—the wailing of the young child—its piteous 
look—its burial in a little grave under the matted and crisp 
803 § 804] 
PSYCHICAL INDICATIONS OF CRIME. 
[book I. 
spires at the foot of a pine. Yet no one had been buried there, 
nor had the mother aught to do with the child’s death. 
§ 803. Then sometimes the same weariness of life seizes 
upon a false confession as a congenial method of suicide. 
Death is sought in a way which may best correspond to the 
then morbid condition of the brain; in a way which involves 
others, though innocently on their part, in the self-murder, and 
makes them strike the blow. “ I fling myself, not into the 
river, nor into the abyss, but upon the scaffold.” Thus Lord 
Clarendon tells us of a Frenchman, named Hubert, who was 
convicted and executed on his confession of having occasioned 
the great fire in London, “ although,” says that sagacious 
jurist and historian, “neither the judges nor anyone pre- 
sent believed him guilty, but that he was a poor, distracted 
wretch, weary of life, and who chose to part with it in this 
way.”(A) 
§ 804. Before a confession be acted upon, therefore, let these 
tests be applied. Let it be remembered, to sum up in the words 
of a great civilian, that “there sometimes lurks, under the 
shadow of an apparent tranquillity, an insanity, which impels 
men readily to accuse themselves of all kinds of iniquity. 
Some, deluded by their imagination, suspect themselves of 
crimes which they have never committed. A melancholy 
temperament, the tcedium vitce, and an unaccountable propensity 
to their own destruction, urge some to the most false confes- 
sions ; whilst they were extracted from others by the d read of 
torture, or the tedious misery of the dungeon.”(i) 
The last motive rarely exists among ourselves, but the first 
may be not infrequent. The first precaution is to have absolute 
proof of the corpus delicti. This, however, is not enough. 
There may be abundant proof that a crime was committed, 
and yet the confession may be false. We must exact proof 
that connects the supposed criminal with the actual crime. 
We must examine into his condition of mind, and see how far 
insanity, or remorse, or bravado, or weariness of life, or delu- 
sion may have influenced him. When these tests are applied, 
(7i) Continuation of Lord Clarendon’s Memoirs, written by liimself, p. 852. 
(?) Hein. Ex. 18, § 6. 
804 BOOK I.] 
AFTER CRIME. 
[§ 805 
we are ready to take the confession as impressed with its true 
significance. It thus becomes a positive form of proof.(j) 
(bl) Nervous tremor. 
§ 805. The Countess of Somerset, when arrested on the 
charge of the murder of Sir Thomas Overbury, laughed off 
the possibility of guilt with that fascination which so emi- 
nently belonged to her. It was hard to believe that under- 
O') “To guard against false confessions,” says Jeremy Bentliam, “the 
two following rules ought to he observed:— 
“1. One is, that, to operate in the character of direct evidence, confession 
cannot be too particular. In respect of all material circumstances, it should 
be as particular, as, by dint of interrogation, it can be made to be. Why so ? 
Because (supposing it false) the more particular it is, the more distinguish- 
able facts it will exhibit, the truth of which (supposing them false) will be 
liable to be disproved by their incompatibility with any facts, the truth of 
which may have come to be established by other evidence. The greater the 
particularity required on the part of the confession, the greater is the care 
taken of the confessionalist—the greater the care taken to guard him against 
undue conviction, brought upon him by his own imbecility and imprudence. 
“2. The other rule is, that, in respect of all material facts (especially the 
act which constitutes the physical part of the otfence), it ought to comprehend 
a particular designation in respect of the circumstances of time and place. 
For what reason ? For the reason already mentioned : to the end that, in the 
event of its proving false (a case not impossible, though in a high degree rare 
and improbable), facts may be found by which it may be proved to be so. ‘ I 
killed such a man’ (saysthe confessionalist, mentioning him) ‘on such a day, 
at such a place.’ ‘ Impossible’ (says the judge, speaking from other evidence), 
‘ on that day neither you nor the deceased were at that place. ’ 
“But time and place are both indefinitely divisible. To what degree of 
minuteness shall the division be endeavored to be carried for this purpose ? A 
particular answer that shall suit all cases cannot be given. The end in view, 
as above stated, must be considered, and compared with the particular cir- 
cumstances of the case, in regard to either species of extension, ere the degree 
of particularity proper to be aimed at by the interrogatories can be marked 
out. Under the head of time, the English law, in the instrument of accusa- 
tion, admits of no other latitude than what is included in the compass of a 
day. The nature of things did not, in this instance, render uniformity im- 
possible ; the parts into which time is divided are uniform and determinate. 
Place—relative space—is not equally obsequious ; the house ? yes; if the 
supposed scene of the supposed transaction be a house ; the street ? yes ; if 
the scene were in a street; but a field, a road, a common, a forest, a lake, a 
sea, the ocean ; any of these may have been the scene.” (Bentliam, Ration- 
ale of Jud. Ev., Book v. chap. vi. § 8.) 
805 § 805] 
PSYCHICAL INDICATIONS OF CRIME. 
[book i. 
neath that young and beautiful brow, so cruel and artful an 
assassination could have been planned. IsTo alarm was shown, 
no cloud of manner by which the slightest trouble of con- 
science was betrayed. So she bore herself until she found she 
was to be taken to the Tower. There Sir Thomas Overbury, 
himself but a young man, and one whom she had frequently 
and kindly met, had just died in unspeakable torments. There 
she had sent, under the guise of kindness, the poisoned tarts 
which caused his death. One great terror grew over her— 
that she should be taken to his room—that she should have to 
pass lonely nights there, and in that bed. At last her nerves, 
wrought up to their highest dissimulation, snapped asunder. 
She sank prostrate and wretched to the ground, and then 
followed her confession. 
From this nervous tremor arose the old habit of requiring 
supposed criminals to touch the corpse of the murdered man. 
With this was no doubt joined a superstition that the corpse 
would bleed when it felt the murderer’s hand. But this was 
but collateral to the belief that in this way the conscience of 
the guilty party would be exposed to a test which might, in 
some cases at least, prove efficacious. It is true that when the 
criminal has time to nerve himself for the purpose, he is able, 
if he has much courage of manner, to bear himself calmly and 
impassively. This was the case with Major Strangways, in 
1657, who, on being required to take the deceased by the hand 
and touch his wounds, did so with a demeanor undisturbed. 
It is true, also, that others, by a powerful effort of nervous im- 
agination, may fling themselves into the character of an inno- 
cent person, in the same way that Mrs. Siddons could fling 
herself into the character of Queen Catharine, or Talma into 
that of Hamlet. “ You looked as if you were really meta- 
morphosed, and not merely trying to appear so.” “ I made 
myself believe that the audience was divested of all flesh— 
mere spirits, and I a spirit speaking to them,” was Talma’s 
reply. But this leap requires some little breadth of base from 
which to start. The mind cannot rise up to it suddenly. The 
murderer who might, if a due interval be given, nerve himself 
to the work, often collapses if suddenly brought in contact 
with the deceased. The old result is reversed; for in former 
806 BOOK I.] 
AFTER CRIME. 
[§ 806 
times it was the dead man that gave sign; now it is the living. 
We have an instance of this in the latest American case where 
the process was tried. A man named Johnson, under trial for 
murder in Hew York, in 1824, was taken out of his cell to 
the hospital by the high constable, and required to touch the 
murdered body. He did so, but the touch broke the texture 
of the murderer’s dissimulation. He fell into a nervous 
tremor, which resulted in a confession. This confession, when 
he recovered, he sought to retract; and his counsel endeavored 
to exclude it in court, on the ground that it had been impro- 
perly obtained. But the judges overruled the objection, with- 
out in any way objecting to the process.(A') 
§ 806. William Peterson, a young man of only about 
nineteen, but of the most extraordinary self-control, was 
charged, in the Memphis District, Tennessee, in 1852, with 
the highway robbery and murder of Thomas Merriweather. 
Ho feature, in this very remarkable case, is more remarkable 
than the mastery over his nervous system which had been 
obtained by this young but desperate criminal. An almost 
girlish delicacy and fairness of skin and features covered an 
iron energy of muscle and nerve that was able to brace itself 
against any expected attack. Yet even this power gave way. 
Closely resembling the murdered man—so closely as to produce 
mistakes between the two—was his brother, William Merri- 
weather. The prisoner, not knowing he was suspected, was 
lying asleep in his bed near midnight. His chamber was sud- 
denly entered by the officers charged with his arrest. He 
betrayed no sign, though the slight trembling of the eyelids 
showed that his sleep was feigned. “I will go with you 
readily,” and he got up quietly to meet the charge. But sud- 
denly his eyes fell on a figure which may well have recalled 
to him the dead man, for there, darkened in the background, 
stood William Merriweather, pale and corpse-like, in the ex- 
haustion and excitement of his long search for, and final dis- 
covery of, his brother’s murderer. It was as if the dead and 
living were confronted. Then, as in former cases, the living 
broke down. Peterson’s composure could not stand the trial. 
(k) People v. Johnson, 2 Wheeler’s C. C. 378. 
807 § 807] 
PSYCHICAL INDICATIONS OF CRIME. 
[book i. 
The policy of his intended defence was that he did not know 
the deceased; but as he looked at the brother his “head drop- 
ped upon his breast, and he sighed deeply.” A partial con- 
fession and a conviction followed.(^) 
§ 807. The following incident is given in Parton’s Life of 
Burr. On a trial for murder, the prisoner was defended jointly 
by Colonel Burr and General Hamilton. “ At first, the evi- 
dence against the prisoner seemed conclusive, and I think Burr 
himself thought him guilty. But as the trial proceeded, sus- 
picions arose against the principal witness. Colonel Burr 
subjected him to a relentless cross-examination, and he became 
convinced that the guilt lay between the witness and the 
prisoner, with the balance of probability against the witness. 
“The man’s appearance and bearing were most unprepos- 
sessing. Besides being remarkably ugly, he had the mean 
down look, which is associated with the timidity of guilt. 
Hamilton had addressed the jury with his usual fluent elo- 
quence, confining his remarks to the vindication of the prisoner, 
without alluding to the probable guilt of the witness. The 
prosecuting attorney replied, and it was now Burr’s province 
to say the last word for the prisoner. But the day had worn 
away, and the court took a recess till candlelight. This was 
extremely annoying to Colonel Burr, as he meditated enacting 
a little scene, to the success of which a strong light was indis- 
pensable. He was not to be balked, however. Through one 
of his satellites, of whom he always had several revolving 
around him, he caused an extra number of candles to be 
brought into the court-room, and to be so arranged as to throw 
a strong light upon a certain pillar, in full view of the jury, 
against which the suspected witness had leaned throughout 
the trial. The court reassembled, the man resumed his ac- 
customed place, and Colonel Burr rose. With the clear con- 
ciseness of which he was master, he set forth the facts which 
bore against the man, and then, seizing two candelabras from 
the table, he held them up towards him, throwing a glare of 
light upon his face, and exclaimed:— 
“ 1 Behold the murderer, gentlemen!’ 
808 
(Z) See this case reported, vol. ii. BOOK I.] 
AFTER CRIME. 
r§ 809 
“ Every eye was turned upon the wretch’s ghastly counte- 
nance, which, to the excited multitude, seemed to wear the very 
expression of a convicted murderer. The man reeled, as though 
he had been struck; then shrunk away behind the crowd, and 
rushed from the room. The effect of this incident was de- 
cisive. Colonel Burr concluded his speech, the judge charged, 
the jury gave a verdict of acquittal, and the prisoner was free.” 
§ 808. The longer the prior tension the more sudden and 
complete the crash. "When Dr. Webster was brought by the 
police to the medical college, where for so many days he had 
with great external composure been covering up the proofs of 
his guilt, his whole system, at the recurrence of the scene under 
these new auspices, gave way. “He seemed,” said one of the 
witnesses, “ like a mad creature. When the water was put 
toward him, he would snap at it with his teeth, and push it 
away with great violence, without drinking, as if it were 
offensive to him.”(m) “ Dr. Webster appeared to be very much 
agitated,” says another; “sweat very much, and the tears and 
sweat ran down his cheeks as fast as they could drop.”(w) 
“ The perspiration was so excessive as to wet through his 
clothing. ”(o) 
§ 809. Bichard Weston was sub-keeper of the tower at the 
time of the poisoning of Sir Thomas Overbury. He was the 
first person tried for that crime. When the bill of indictment 
was returned, as we learn from Mr. Amos’s “ Great Oyer,” all 
eyes were turned to the bar, where the wretched prisoner was 
brought up. He was a man of about sixty years of age. His 
forehead was wrinkled with age, his hair sprinkled with gray. 
His countenance, though not wanting in a certain degree of 
comeliness, had a stern and grim expression, and was now dis- 
torted with terror. His face was deadly pale, his lips quivered, 
and his knees tottered as he stood at the bar while the indict- 
ment was read. It charged him with having murdered Sir 
Thomas Overbury in the Tower of London by administering 
various poisons—rosalgar, white arsenic, and mercury subli- 
mate—on four different occasions. The prisoner was then 
(to) Bemis’s Report of the Webster Case, p. 60. 
(71) Ibid. pp. 120, 121. (0) Ibid. p. 193, 
809 §810] 
PSYCHICAL INDICATIONS OF CRIME. 
[book i. 
asked, in the usual form, whether he was guilty of the murder, 
yea, or no. The poor wretch, instead of answering, became 
agitated, and in his distress screamed several times, “Lord 
have mercy on me ; Lord have mercy on me.” At length he 
stammered out, “Not guilty.” But, when asked how he would 
be tried, instead of answering in the usual form, “By God and 
my country,” he exclaimed he referred himself to God—he 
would be tried by God alone. And though the Chief Justice 
spent an hour in persuading him to put himself upon his 
country, he could get no other answer out of him than that 
he referred himself to God. 
§ 810. The Earl of Essex was the last favorite of Queen 
Elizabeth. Young, brilliant, of remarkable fascination both 
in person and mind, he held, on the queen’s affections, heredi- 
tary claims of which his personal graces may well have re- 
minded her. For—except the two Careys—he was her only 
male relative on her mother’s side; and, as she looked on his 
handsome person, and studied his ardent though inconsistent 
character—bold, rather than courageous—dashing, but incon- 
sequent—chivalric in bearing, yet not always generous in heart 
—she could not but recognize the defects as well as the graces 
of her kinsmen of the Boleyn blood. Then, besides, his father 
had served her at the time when her faithful servants were 
few, and it was one of her principles ever to be true not only 
to those who had been true to her, but to their children. But 
even Elizabeth’s constancy might be overstrained. To almost 
more than womanly weakness in domestic life, she added more 
than masculine severity in matters of state. She became 
piqued with Essex’s waywardness to her personally, and per- 
mitted herself, upon his failure in his Irish campaigns, not 
only to rebuke but to degrade him. The favorite was stung 
to the quick, and rushed into a desperate scheme to forcibly 
change the administration. He was tried and sentenced to be 
executed. Then came with her the struggle. Whatever may 
have been her relations to him, she loved him still too affec- 
tionately, and had, by her indulgence, given too large a margin 
to his excesses, to permit her to consent to his death. That he 
should die she never intended. But with that singular and 
cruel waywardness by which her Tudor blood and her woman’s 
810 BOOK I.] 
AFTER CRIME. 
[§ 811 
caprice were alike shown, her plan seemed to have been to 
have humbled her favorite until she brought him to her feet 
as a devoted suppliant, once more to be fastened to her person, 
as one who first could give life and then renew prosperity. 
To this plan one thing was needed on Essex’s part. Eliza- 
beth had given him a ring which he was to send to her when- 
ever he was in straits, and which, she had given him her 
word, should bring back from her a free pardon. The death- 
warrant had issued, and she passionately waited for the ring. 
She recalled the warrant to give more time, but no sign was 
made by Essex. The sentence of his peers hung over him—• 
he asked not to have it remitted—and at last the queen let the 
axe fall. 
§ 811. Two years passed of eminent prosperity. The Span- 
iards were finally repulsed, the Irish subdued, a firm alliance 
was secured with France, and England was placed at the head 
of the Protestant powers. Elizabeth had apparently deadened 
all recollection of Essex. But on the death-bed of the Countess 
of Nottingham, a scene took place which brought back the 
old love with all the additional power of remorse. It ap- 
peared that Essex had reserved the ring for his last extremity, 
and then had given it—to follow Hume’s incomparable nar- 
rative—“to the Countess of Nottingham, whom he desired 
to hand it to the queen. The countess was prevailed on 
by her husband, the mortal enemy of Essex, not to execute 
the commission ; and Elizabeth, who still expected that her 
favorite would make this last appeal to her tenderness, and 
who ascribed the neglect of it to his invincible obstinacy, was, 
after much delay and many internal combats, pushed by resent- 
ment and policy to sign the warrant for his execution. The 
Countess of Nottingham, falling into sickness, and affected 
with the near approach of death, was seized with remorse for 
her conduct; and, having obtained a visit from the queen, she 
craved her pardon, and revealed to her the fatal secret. The 
queen, astonished with this incident, burst into a furious pas- 
sion. She shook the dying countess in her bed; and, crying to 
her that God might pardon her, but she never could, she broke from 
her, and thenceforth resigned herself over to the deepest and 
most incurable melancholy. She rejected all consolation. She 
811 §813] 
PSYCHICAL INDICATIONS OF CRIME. 
[book i. 
even refused food and sustenance; and, throwing herself on the 
floor, she remained sullen and immovable, feeding her thoughts 
on her afflictions, and declaring life and existence an insuffer- 
able burden to her. Few words she uttered, and they were 
all expressive of some inward grief which she cared not to 
reveal. But sighs and groans were the chief vent which she 
gave to her despondency, and which, though they discovered 
her sorrows, were never able to ease or assuage them. Ten 
days and nights she lay upon the carpet, leaning on cushions 
which her maids brought her; and her physicians could not 
persuade her to allow herself to be put to bed, much less to 
make trial of any remedies which they prescribed to her.” 
And then came death. 
(c1) Morbid propensity to recur to scene and topic of guilt. 
§ 812. There are certain abnormal states of the nervous 
organism in which the propensity to commit a desperate act is 
almost irresistible. There are few who have not felt this when 
standing on a tower or on the brink of a precipice. A strange 
curdling runs and quivers through the veins, an impulse to 
break this mystery of life, and desperately to face what stands 
beyond. There are few great criminals who have not borne 
witness to the same propensity. They are ever on the preci- 
pice-brink of discovery, and often comes this convulsive im- 
pulse, to throw themselves, blood-stained and confessing, into 
the chasm below. And even when this is not consummated, 
there is a strange fascination which makes them flit over the 
scene and topics. The impulse is to get as near to the edge as 
they can without toppling over. 
§ 813. This impulse, working in a mind of peculiar delicacy 
and culture, betrayed itself in Eugene Aram’s case in a series 
of refined and oblique allusions to acts of guilt, such as that 
of which he had been the perpetrator. Ilis mind hovered and 
quivered over the topic, assuming and expressing itself in 
varied fantastic shapes, often flitting apparently away, but 
floating again from the same spot, as would an exhalation from 
some hidden pernicious mine. So showed the evidence on the 
trial, which is paraphrased, with extraordinary psychological 
accuracy, by Hood:— 
812 BOOK I.] 
AFTER CRIME. 
[§ 814 
The usher took six hasty strides, 
As smit with sudden pain— 
Six hasty strides beyond the place, 
Then slowly back again; 
And down he sat beside the lad, 
And talked with him of Cain. 
And long since then of bloody men 
Whose deeds tradition saves ; 
Of lonely folk, cut off unseen, 
And hid in sudden graves ; 
Of horrid stabs in groves forlorn, 
And murders done in caves ! 
And how the sprites of injured men 
Shrieked upward from the sod— 
And how the ghostly hand will point 
To show the burial clod ; 
And unknown facts of guilty acts 
Are seen in dreams from God! 
He told how murderers walked the earth 
Beneath the curse of Cain— 
With crimson clouds before their eyes, 
And flames about their brain ; 
For blood had left upon their souls 
Its everlasting stain! 
“And well,” quoth he, “I know, for truth, 
Their pangs must be extreme— 
Wo, wo, unutterable wo— 
Who spill life’s sacred stream ! 
For why ? Methought last night, I wrough 
A murder in my dream ! 
“One that had never done me wrong, 
A feeble man and old ; 
I led him to a lonely field, 
The moon shone clear and cold ; 
Now here, said I, this man shall die, 
And I shall have his gold!” 
That very night, while gentle sleep 
The urchin’s eyelids kissed, 
Two stern-face men set out from Lynn 
Through the cold and heavy mist; 
And Eugene Aram walked between, 
With gyves upon his wrists. 
§ 814. Among coarser minds the same propensity exhibits 
itself in the affectation of jocularity or rude jest. Thus Robin- 
son, who was tried for the murder of Suydam, whose body was 
813 § 815] 
PSYCHICAL INDICATIONS OF CRIME. 
[book i. 
found under the front basement floor of Robinson’s house, re- 
marked, two days before the discovery, to a carpenter who 
found him, with a hoe, dragging the earth in the back base- 
ment, as if he had been getting out sand for the masons, “ Here’s 
where I was going to poke Suydam underadding that “ he 
had not time to do it.” This was tossed off as a joke, and 
may perhaps be regarded as an artifice to divert attention. 
But it arose more probably from a morbid propensity impelling 
the murderer to dwell in language on the topic which was to 
him at once so perilous and so engrossing. 
§ 815. The same peculiarity was observable in Haney Farrer’s 
case. Whether or no that remarkable woman was technically 
responsible it is not proposed now to consider. Conceding, 
however, that she was insane (and to this effect went the last 
verdict taken in her case), she had a vein of shrewd cunning 
running through her which enabled.her to shelter herself from 
suspicion during two successive groups of poisonings. There 
were the same precautions as taken by other criminals to 
deaden surprise by intimations of the ill health of her intended 
victims—the same assertions of constitutional tendency to 
these particular symptoms. And with this there was the 
same subsequent hovering of the mind over the scene of guilt. 
Thus, after the death of “Johnny,” one of the children whom 
she was employed to nurse, and whom she had poisoned, she 
was found “excited and anxious if any two were talking, to 
get close to them, and to wish to know what they were 
saying.” And then came one of those strange convulsive 
confessions such as that in Robinson’s case—confessions in 
which the truth is thrown out as if it were too hot for the 
heart to hold, and yet at the same time put forth as if it were 
a joke, so as to relieve the mind of him that speaks from the 
solitude of this awful secret, and yet not too boldly proclaim 
guilt. Haney told a witness, after the death of one of the 
children, “how lucky she was with sick folks; they all died 
in her hands.” The witness saying, “ May be you killed them 
she said, “ May be I did.” “She seemed to be joking—seemed 
to be smiling—seemed to be very careless about it.”(p) 
814 
(p) Farrer v. State, 2 Ohio St. R. (N. S.) 64. BOOK I.] 
REMORSE. 
815 
(d1) Permanent mental wretchedness.^) 
§ 816. We may pass the case of a tender conscience, which 
commits a heinous act inconsiderately, or under force of strong 
temptation, and then is stung by bitter and enduring remorse. 
These cases may be said to be exceptional. We may be told, 
and perhaps truly, that the majority of great crimes are com- 
mitted by men whose hearts are so rigid and callous as to give 
no sign of a troubled conscience. The sun, on the day after 
the crime, shines upon a face just as hard as that on which he 
shone the day before. Blood cannot stain a skin already black 
with guilt. No man is suddenly a great criminal. He becomes 
so, it is argued, by long and slow processes, during which 
all the impressible elements of the heart are hardened and 
solidified. 
Now this maybe all true, and yet common observation tells 
us that there are certain types of character among which d 
priori we are accustomed to look for the perpetrator of some 
great crime. And this rigidity of heart is one of these. 
This, in itself, may give a faint though definite psychological 
presumption. But it is questionable whether there are any 
characters in which this type is permanent:— 
“ The deepest ice that ever froze 
Can only over the surface close ; 
The living stream lies quick below, 
And flows, and cannot cease to flow.’ 
§ 817. “ To my mind,” says Dr. Maudsley, an eminent 
London physician whose prejudices are far from being in favor 
of supernaturalism,(r) “there are incontrovertible reasons to 
conclude that the organic conditions of memory are the same in 
the supreme centres of thought as they are in the lower centres 
of sensation and of reflex action. Accordingly, in a brain 
that is not disorganized by injury or disease, the organic 
registrations are never actually forgotten, but endure while 
life lasts; no wave of oblivion can efface their characters. 
Consciousness, it is true, may be impotent to recall them; 
but a fever, a blow on the head, a poison in the blood, a dream, 
(q) See supra, § 406. 
(r) Body and Mind, London, 1870, p. 21. 
815 816 
PSYSICAL INDICATIONS OF CRIME. 
[book i. 
the agony of drowning, the hour of death, rending the veil 
between our present consciousness and these inscriptions, will 
sometimes call vividly back, in a momentary flash, and call 
back, too, with all the feelings of the original experience, much 
that seemed to have vanished from the mind forever. In the 
deepest and most secret recesses of mind, there is nothing 
hidden from the individual self, or from others, which may 
not be thus some time accidentally revealed; so that it might 
well be that, as De Quincey surmised, the opening of the book 
at the day of judgment shall be the unfolding of the ever- 
lasting scroll of memory.” 
§ 818. “ Something was wrong with him. My suspicion was 
aroused by his troubled sleep.” This is the frequent answer 
to the question as to what put the witness first on the watch. 
Shakspeare makes Lady Macbeth’s great secret vent itself in 
this way, and to attract very much the same observation from 
by-standers. And this, in fact, is but in obedience to one of 
those divine sanctions by which crime is made in part its own 
avenger. “ There are violent and convulsive movements of 
self-reproach,” says Dr. McCosh, “ which will at times break 
in upon the self-satisfaction of the most complacent. Man’s 
peace is in this respect like the sultry heat of a summer’s day; 
it is close and disagreeable at the time, and ever liable to be 
broken in upon by the thunders and tempests of divine indig- 
nation. Even in the case of those who are anxious to keep their 
attention turned away as much as possible from themselves, 
and as little as possible upon the state of their hearts, there 
will occur intervals unfilled up between the scenes that express 
them, and on these occasions there will be recollections called 
up which occasion the keenest misery. It may be after a day 
of selfish business, or an evening of sinful excitement, that 
such unwelcomed visitations are paid to them to disturb their 
rest, while others have buried their cares in the forgetfulness 
of sleep. Or it may be in the time of disease, or in the pros- 
pect of death, that the ghosts of deeds committed long ago 
spring up as from the grave. These gloomy fears, proceeding 
from conscious guilt, always rise up like a ghostly apparition, 
never in the sunshine of prosperity, but always in the gloom 
of adversity, to render the darkness more horrific.” 
816 BOOK I.] 
REMORSE. 
[§ 819 
“In other cases, the troubling of the conscience is produced, 
we can scarcely tell how, by the state of the nervous system, 
or by an accidental event, recalling the deed committed to 
oblivion, or by a sudden flashing of some willingly forgotten 
scene upon the mind, revealing, like the lightning’s glare at 
night, dreadful depths of darkness. In regard to such phe- 
nomena we may know what are the general laws; though it 
may be as difficult to explain the specific causes as it is to tell 
the immediate cause of the raising this gust of wind, or of 
this cloudy atmosphere, of both of which we may know per- 
fectly what are the general means of their production.” 
“O coward conscience ! how dost thou afflict me ! 
The lights bum blue. Is it not dead midnight ? 
Cold fearful drops stand on my trembling flesh. 
What! do I fear myself? There’s none else by.” 
Bich. III. Act v. Scene 3. 
§ 819. M. Guillem relates the following remarkable case: 
“ The Chevalier de S had been engaged in seventeen ‘affairs 
of honor,’ in each of which his adversary fell. But the 
images of his murdered rivals began to haunt him night 
and day: and at length he fancied he heard nothing but the 
wailings and upbraidings of seventeen families—one demand- 
ing a father, another a son, another a brother, another a 
husband, etc. Harassed by these imaginary followers, he incar- 
cerated himself in the monastery of La Trappe; but the French 
revolution threw open this asylum, and turned the Chevalier 
once more into the world. He was now no longer able to bear 
the remorse of his own conscience, or, as he imagined, the sight 
of seventeen murdered men, and therefore put himself to death. 
It is evident that insanity was the consequence of the remorse, 
and the cause of the suicide.” 
Mr. de Quincey, in one of the volumes of his literary remi- 
niscences, thus speaks of a duel between Colonel Montgomery 
and Captain Macnamara:— 
“ The colonel, as is well known, a very elegant and generous 
young man, fell; and Captain Macnamara had thenceforward 
a worm at his heart, whose gnawings never died. He was a 
post-captain; and my brother afterwards sailed with him in 
quality of midshipman. From him I have often heard affect- 
YOL. I.—52 
817 818 
PSYCHICAL INDICATIONS OF CRIME. 
[book t. 
ing instances of the degree in which, the pangs of remorse had 
availed to make one of the bravest men in the service a mere 
panic-haunted, and, in a moral sense, almost paralytic wreck. 
He that, whilst his hand was unstained with blood, would have 
faced an army of fiends in discharge of his duty, now fancied 
danger in every common rocking of a boat; he made himself, at 
times, the subject of laughter at the messes of the junior and 
more thoughtless officers ; and his hand, whenever he had 
occasion to handle the spy-glass, shook (to use the common 
image), or rather shivered, like an aspen tree!” 
§ 820. Extraneous circumstances may evoke this involun- 
tary remorse. The culprit may form around him his own 
atmosphere, which will impart for a while its tinge to his con- 
duct. He may, by a powerful effort of imagination, create 
for himself fictitious wrongs and fictitious justification. Sud- 
denly, however, comes a rude touch and dissolves the whole 
fabric. Heretofore he believed himself a hero, or an instru- 
ment of inexorable fate. How he sees himself a murderer, 
cruel and loathsome, and a spasmodic cry of agony escapes his 
lips, or insanity, or suicide, or, what may be worse than either, 
a dull and incurable despair, closes his life. 
The independent existence of this latent consciousness of 
guilt is shown by the fact that it is called into action by events 
over which the will has no control. It is not the creation of 
a diseased brain. It is not the result of a morbid self-intro- 
spection. Were it either of these, the will could recall it, or 
perhaps again banish it. But it is produced arbitrarily and 
convulsively by circumstances with which the will has nothing 
to do. The sudden sight of a ring belonging to one whom 
Queen Elizabeth had loved but sacrificed, threw, as we have 
seen, that most proud and self-poised of women into an agony 
of demonstrative remorse. The countess of Somerset, who had 
borne herself with such consummate self-possession and tact 
during the prior periods of the prosecution, screamed with 
terror at the prospect of being taken to sleep in the room of 
Sir Thomas Overbury, whom she had poisoned. Hor are these 
cases unfamiliar to our every-day observation. A little locket, 
a lock of hair, a faded rose, a ribbon, taken from the person of 
one who has been loved and lost, will recall a passionate torrent 
818 BOOK I.] 
REMORSE. 
819 
of long-buried grief. We may have been, a moment before, 
calm or buoyant. If we had been able to exercise our own will, 
we would have banished these memories finally. But now, 
without our agency, they burst upon us and overwhelm us. 
§ 821. How corrosive is remorse, even when crime is unde- 
tected, is illustrated by the case of John Sadleir, whose forge- 
ries startled London a few years ago. “ A highly respectable 
solicitor, who was himself engaged in London, received one 
night from a correspondent in Dublin a telegraphic dispatch 
which merely said, ‘All wrong about ’s mortgage; I will 
write by post.’ Sadleir, who saw the dispatch, immediately 
conceived that it alluded to one of his forgeries, and that he 
was on the point of being discovered. Without saying a word, 
he went home, and on his road purchased a quantity of essen- 
tial oil of almonds; and the same night committed suicide. 
How great must have been the mental torture this wretched 
man had endured for some time previous to his committing 
this rash act may be judged from the fact that the coats of his 
stomach were impregnated with opium ; and it was afterwards 
discovered that, from the constant use of the drug, the quan- 
tity he was obliged to take in order to procure a few hours’ 
sleep was enough to have killed an ordinary person. For some 
time before his decease he seemed scarcely capable of fixing 
his mind for five minutes upon one continuous subject—his eye 
was incessantly turning with a haggard expression, and he was 
totally unconscious of the matter under discussion.”(s) 
§ 822. There is a feature, however, in respect to a conscious- 
ness of guilt thus produced, that distinguishes it from a sud- 
denly recalled grief. The latter reproduces merely a past 
memory, the former a present reality. The recollection of the 
latter is, I was in time past so and so. The discovery with 
the former is: I am now a criminal ; I did that deed op guilt. 
Of this discovery there are but two or three consequences. 
One is confession, and the consequent relief from a compara- 
tively unburdened conscience. Another is a continued condi- 
tion of misery. A third is the stupor or hardness which is so 
common an attribute of old criminals. Either of these is a 
(s) Good Words, 1866, p. 467. 
819 820 
PSYCHICAL INDICATIONS OF CRIME. 
[book i. 
positive psychical condition, as much the subject of ascertain- 
ment as are the types or phases of the physical condition. 
(e1) Animosity among confederates. 
§ 823. “ He knows my secret, and I must dispatch him.” 
“ Because he fears my betraying him, he will try to get rid of 
me.” One of these feelings, and perhaps both, lurk in the 
breast of the confederates in almost every joint secret crime. 
How dangerous is the possession of a political secret in a 
despotic government, is evidenced to us in the many assassina- 
tions by which fell the favorites of the French and English 
monarchs of the seventeenth century. 
But another and more subtle impulse sometimes intervenes 
to work out the same result. It seems almost an invariable 
psychological rule that passionate love, producing crime, is 
followed by passionate hatred. Take, for instance, the reign 
of James I., and go to Lord Coke’s great Oyer, which has been 
already more than once referred to. Whether or no the Earl 
of Somerset was really guilty of the consummated poisoning 
of Sir Thomas Overbury, may perhaps be doubted. It is clear, 
however, that his countess caused poison to be sent to the de- 
ceased to remove or punish his opposition to her marriage, and 
that her husband was at least privy to her designs. It is clear, 
also, that he must have known, if not participated in the ne- 
farious plot by which his wife, as a preliminary to her mar- 
riage with himself, was divorced from the Earl of Essex. For 
by fraud, if not by bloodshed, as all England knew, was the 
first marriage dissolved and the second secured. To make this 
second marriage happy many outward circumstances conspired. 
The earl and his countess were each remarkable for their beauty 
and grace. They had wealth and station; they loved each 
other with a love which had torn asunder the most sacred bar- 
riers, and had conquered almost unsurmountable difficulties; 
but when they at last met, they found an invisible obstacle 
between them which they could not overcome. This was the 
consciousness of a common crime. Their love was followed by 
hatred so intense, and by quarrels so bitter, that quiet was only 
secured by separation. For years they lived in the same house 
820 BOOK I.J 
ANIMOSITY AMONG CONFEDERATES. 
[§ 824 
with hearts so hostile that they instinctively shrank from 
each other when they met. Aversion became divorce. 
§ 824. The following striking remarks are from Mr. Har- 
greaves’s late (1871) curious work on “ The Blunders of Vice 
and Folly.” “On the other hand, what is the position of the 
confederate? He, too, lives in constant apprehension, for he 
knows that his employer has the strongest possible inducement 
to remove him in order that he may extinguish the evidence 
of his guilt. He knows, also, that a man who has instigated 
one misdeed will not hesitate at another; and still more, he 
perceives that his own destruction is a condition which is essen- 
tial to the secure enjoyment of the advantages arising from the 
original offence. And thus they stand, eyeing each other with 
alarm, like stags whose antlers have sometimes been found 
interlocked in some furious struggle, and for whom there is 
no release till death arrives; for each remembers (and this is a 
most galling element in the transaction), that, by the very 
terms of the case, both are to be destitute of principle, and 
therefore neither can be trusted for a single instant.” Among 
illustrations of this may be mentioned the assassination of 
Count Konigsmark by some Italian desperadoes, whose em- 
ployer, it is alleged, gave them a slow poison before they started 
on their errand, so as to make sure that they should not betray 
their secret. 
“ There is an old saying,” continues the same author, “ which 
assumes that honor exists among thieves. Doubtless, some 
measure of fellowship and freemasonry is to be found among 
the chevaliers ddIndustrie, whether their operations are conducted 
on a large or a small scale. But it is only so long as a common 
interest binds them together, and constrains them to unite for 
the avoidance of a common danger, that the slightest depend- 
ence can be placed on their good faith. The man who proves 
himself a traitor to the community will rarely scruple to betray 
his comrade whenever a fitting opportunity occurs, provided 
he can turn a few pounds by the transaction. From Vidocq’s 
Memoirs we learn that the regular thieves of Paris showed no 
reluctance to assist the police in detecting and exposing their 
professional brethren; for some of them were frequently em- 
ployed by the officials in unearthing culprits, and accepted the 
821 § 827] 
PSYCHICAL INDICATIONS OF CRIME. 
[book i. 
commission with pleasure, either in consideration of the reward, 
or in the hope of securing a little indulgence for themselves. 
He himself, whilst in prison, volunteered to act as a spy upon 
his fellow convicts, and afterwards, when set at liberty, entered 
into a compact with the police, at a fixed salary, to feed justice 
with a stated number of rogues each year, in default of which 
he was liable to be sent back to Brest.” 
§ 825. Poets have often dwelt upon this property of crime, 
hut by no one has this been done with greater energy than by 
Robert Browning. Ottima, an Italian woman, pursues with 
the utmost passion an adulterous intercourse with a German, 
Sebald. Together they murder her husband. Then comes for 
a moment the passionate voluptuousness of guilty love in its 
full. But while they are still in the flush of delight at the 
removal of the obstacle to their undisturbed enjoyment, a 
country girl passes under the window singing a home song 
which brings them hack to the reality of the crime they have 
committed. It is the ordinary reaction produced on a morbid 
state of the brain by a single healthy thought. Then fierce 
love is followed by fierce hatred, and death by death.(t) 
§ 826. “ The mutineers of the Bounty, after turning Bligh 
and his eighteen companions adrift in a small boat in the midst 
of the Southern Ocean, at the distance of 3600 miles from the 
nearest European colony, found it necessary to forego their 
plan of settling down in luxurious sloth in some insular para- 
dise, and betook themselves to a lonely rock rising perpen- 
dicularly from the deep, and accessible at one landing-place 
only. There they immured themselves to escape observation, 
turning the key of their dungeon, as it were, by burning the 
ship that brought them, lest it should reveal their presence; 
and there they wore out life, the party quarrelling amongst 
themselves and perishing by each other’s hands, for only two 
were permitted to die a natural death.”(w) 
§ 827. Catharine de Medicis, on the death of Francis II., 
had still three surviving sons, Charles IX., who succeeded to 
(<) “ Pippa Passes,” by Robert Browning. Mr. Hawthorne’s last work, 
the “Marble Faun,” hinges on the same topic. 
(u) Hargrayes’s Blunders of Vice and Folly. London, 1871, p. 253. 
822 BOOK I.] 
ANIMOSITY AMONG CONFEDERATES. 
[§ 829 
the crown; Henry, Duke of Anjou, afterwards Henry III.; 
and Francis, Duke of Alengon. Over each she had acquired 
an ascendency which would give her supreme power could she 
make the crown autocratic. There was in the way of this, 
however, an insurmountable difficulty. The Huguenots were 
a co-ordinate power in the state, and their religion and their 
political principles alike made them intractable. Coligny was 
their leader, and besides this possessed military skill, popular 
influence, and inflexible integrity. Assassination was to 
Catharine the natural remedy, and in this she obtained the 
ready support of the chief of the Catholic party, the Duke of 
Guise, and then the reluctant assent of Charles IX. The blow 
was struck; Coligny murdered; and forty thousand Huguenots 
in one night destroyed. 
§ 828. Then came the reaction, and prominent in this was 
the disruption between the queen, her sons, and her accomplices. 
To exclude Henry of Xavarre from the succession was one of 
the chief points in the confederacy, yet eight days after the 
massacre, Charles IX., according to Ranke, was obliged to 
summon Henry to him in the night to quiet the agonies by 
which he was tortured. The young king was filled with dread 
at a wild tumult of confused voices, among which were distant 
shrieks and howlings, mingled with the indistinguishable 
raging of a furious multitude, and with groans and curses, as 
on the day of the massacre. So vivid was his conviction of 
the reality of these sounds, that he sent messengers into the 
city to know if a fresh tumult had broken out. But the 
sounds were mere delusions, which continued to torment 
Charles during the short remainder of his life. Thus he died 
alternately cursing his mother, as the cause of his misery, and 
turning to her submissively, in awe of her overweening power. 
§ 829. So it was with her two remaining sons. Francis, 
Duke of Alengon, flew into open rebellion, making the mas- 
sacres of which he was one of the joint agents the plea. 
Henry III., it is true, when he succeeded to the crown, bowing 
before the queen’s superior genius, conceded to her for a while 
the supremacy. But this same restlessness under the joint 
load of a common guilt, this almost anguish to throw it off on 
her who produced it, soon severed the son from the mother. 
823 § 830] 
PSYCHICAL INDICATIONS OF CRIME. 
[BOOK I. 
The final act was in the castle of Blois, where the Duke of 
Guise, almost at the foot of the throne, was obliged to defend 
himself by teeth and nails like a wild beast, for he had not 
time to draw his sword. He had been invited there by the 
king, as one of the counsel of state, and when there was thus 
massacred by his old co-conspirator. And underneath, on her 
dying bed, lay Catharine of Medicis, the wild tumult above 
giving her proof of this final dissolution of the strange part- 
nership she had formed for the Huguenot massacre. The com- 
munity of guilt had to them been indeed fatal. It had been 
followed by the bitterest recriminations and imprecations. It 
had been followed by massacres and cross massacres. Charles 
IX. did not hesitate to ascribe to poison administered by his 
mother’s hand, the disease which tore his vitals; and, though 
this may be discredited, she permitted his death-bed to be 
neglected, and his funeral deserted, to increase the welcome to 
her more favored son Henry. The Duke of Guise was mas- 
sacred by Henry ; Henry a short time after by an avenger of 
the Duke of Guise. Catharine, after having successively 
deserted those for whom she had risked so much, died at last 
deserted by each in turn. 
§ 830. Such are some of the ways in which psychology may be 
used in the detection of guilt. It shows how a crime betrays 
itself before its commission, in preparations, in intimations, in 
over-acting; at the time of its commission, in incoherence; after 
its commission, in convulsive confessions, in remorse, in invo- 
luntary haunting the guilty topic, and in disruption between 
confederates. The inquiry is an important one in legal psy- 
chology, for it not only aids in the enforcement'of the law, but 
it leads us to those supreme sanctions on which all law rests. 
When we visit a city, and see a series of police officers engaged 
in ferreting out crime; when we see, in connection with this, 
courts in wffiich the criminal is tried, and the penalties to 
which crime is subjected, we draw from these facts the in- 
ference of a government whose office it is to prevent wrong. 
In proportion to the perfection in which this police system is 
carried out, do our conceptions of the wisdom, the power, and 
the earnestness of the supreme authority increase. So it is 
with the agencies we have been examining. Wherever guilt 
824 BOOK I.] 
RETRIBUTION. 
[§ 832 
goes, they-go. They dog it in all its stages. Its most secret 
haunts are not closed to them. Its weakness as well as its 
wisdom—its triumphs and its remorse—they notice and record. 
hTor is their function that of detection alone. They have a 
strange power of compelling guilt to disclose itself. They 
show us that whatever doubts there may be as to the origin 
of evil, there is no doubt as to its close. For they show it to be 
pursued by a most subtle and powerful penal machinery, which 
leaves it not until in one sense or another it is judicially punished. 
§ 831. There is one difference, however, between the police 
of the courts and that of the conscience. The former, in order 
to scent out the crime, often assumes the garb of the criminal. 
Vidocq goes into the thieves’ den to discover the thieves’ 
secrets. lie recalls memories of past crime, so as to induce 
a similar communicativeness in his associates; he gloats en- 
ticingly over the pleasures of guilt; he incites to fresh adven- 
tures by which the criminal may be entrapped. But it is not 
so with the angels of the conscience. They warn, they 
appeal, they implore, and this in tones the tenderest and 
holiest. Their garb is that of light, telling from whence they 
come. "While they announce beforehand who they are, and 
use the most touching entreaties to prevent wrong, they de- 
clare it will be theirs afterwards to avenge that wrong if done; 
—while they leave no secret as to their awful mission, they 
gently plead by all the powers that persuasion can give, that 
vengeance may not be theirs to inflict. The memories they 
recall are not of early guilt, but of early innocence—of periods 
when no mad or polluted comrade stood by, inciting to ruin, 
but some tender friend or relative, uttering counsels of love. 
They paint not the pleasures of guilt, but its misery, and 
they point to scenes of peace to which guilt cannot reach. 
It is not theirs to avenge until their final entreaties are ex- 
hausted; and, when at last they hurry away to give their last 
report, he whose guilt is disclosed cannot but say: “ This, your 
office of exposure as well as of restraint, I knew beforehand. 
You told me this—you told me that my sin, if unchecked, 
would find itself out.” 
§ 832. It is here that the presumptions from this agency rise 
a step higher than those from an earthly police. The latter 
825 § 832] 
PSYCHICAL INDICATIONS OF CRIME. 
[book r. 
tells of a government, comprehensive, sagacious, and just, so 
far as its general object of punishing crime is concerned, but 
of a government which at the same time deals in punishment 
alone, and that by instruments which are often as polluted as 
the evils they are to correct. The former tells of a govern- 
ment, austere it is true, yet very tender; moving to holiness 
through holiness; permeating not merely the outer life, but 
the secrets of the heart; everywhere warning and entreating, 
while everywhere judging; making punishment certain and 
terrible, and yet so working it up into the consequences of the 
criminal’s voluntary act as to render it his own choice. So it 
is that while a police of mere detection and exposure argues 
an executive of mere power, a police of love argues an ex- 
ecutive of mercy; a police that is omnipresent, an executive 
that is omnipresent; a police that for a time entreats, warns, 
and dissuades, an executive that recognizes a temporary pro- 
bation; a police that ultimately and irrevocably avenges, an 
executive that after a free probation judges definitely and 
finally. It is here we have brought before us the elements of 
that Christian Providence which the courts invoke as the 
foundation of public justice. In crime itself, therefore, we 
find the proof of that chief magistrate who avenges crime. 
So it is that while the court-house derives its sanctions from 
this Supreme Power, it contributes to the proof of the ex- 
istence of this Power an independent share of evidence. Ho 
witness can be sworn until he declares his belief in a future 
state of rewards and punishments; no trial can take place 
without strengthening the evidence on which this state rests. 
Human justice falls back on divine for its support; divine 
justice appeals to human as its witness. The penal precepts 
of the common law professedly find their basis in the dictates 
of an enlightened Christian conscience; the divine sanction of 
this conscience is nowhere so fully shown as in the course of a 
trial at common law. The present discussion will not be with- 
out its value, if, by illustrating these truths, it shows how 
close is the connection between the divine law and the human ; 
and how the science of jurisprudence, while it draws down its 
strength from heaven to earth, may still, if rightly studied, 
lead its votaries from earth to heaven. 
826 BOOK I.] 
MEDICO-JURIDICAL opinions. 
[§ 833 
APPENDIX. 
MEDICO-JURIDICAL OPINIONS. 
From Liman’s Casper’s Gerichtliche Medicin, Berlin, 1871. 
I. Homicidal attempt, “ Fanatico-mania ?” § 833. 
II. Fraud, “Insane delusions,” Simulation, § 834. 
III. Larceny, Simulated imbecility, § 835. 
IY. Larceny, Simulated mania, Tests, § 836. 
V. Attempted infanticide, Hystero-epilepsy, Melancholia, § 837. 
VI. Larceny, Initial stage of paralysis, § 838. 
VII. Killing of child, Melancholia, § 839. 
VIII. Homicide, “ Mania transitoria ?” Intoxication, § 840. 
IX. Business capacity, Intermission, § 841. 
X. Homicidal attempt, Insane delusion, § 842. 
XI. Larceny, by an educated man,“ Kleptomania ?” § 843. 
XII. Larceny, by a woman of cultivation, “Kleptomania ?” § 844. 
I. Homicidal attempt, “Fanatico-mania?” 
(Liman’s Casper, No. 270.) 
§ 833. On the 8th of August, 1869, Dr. Heinrici was conducting 
religious services in the Dom-kirche in Berlin. As he was standing 
in front of the altar and reading the Creed with his face towards 
the congregation, Bieland, who stood about ten paces from the altar, 
suddenly advanced a few steps and discharged a loaded pistol at 
Dr. Heinrici. The ball missed the mark, and, glancing back from 
the chancel-rail, grazed the cheek of a child in the audience, without 
doing any serious harm. Some person near Bieland thought they 
heard him exclaim as he fired, “ Yengeance!” Bieland was imme- 
diately arrested, and on examination gave no other reason for his 
conduct than that he was a materialist and hated religion of all 
kinds as well as all clergymen. 
When brought to trial on the 9th of August, he declared that Dr. 
Heinrici was an entire stranger to him, and steadily maintained the 
conviction that his conduct was based on pure motives, that he was 
aware of the consequences of the act, and had prepared himself to 
meet death in the event he had killed the clergyman. 
Otto Bieland was born in Lauke. His father, who is still living, 
827 § 833] 
MEDICO-JURIDICAL OPINIONS. 
[BOOK I. 
is the village blacksmith; his mother died recently of lung disease. 
As a boy, he was good-natured, but often lively and excitable; he 
was possessed of considerable natural ability. From his fifth to 
his tenth year he was sent to the village school, and as he displayed 
an unusual desire for knowledge, was sent to a private school, and 
in his twelfth year entered the Real-school in Berlin, -where he was 
rapidly advanced to the higher classes. Already when at the village 
school he began to feel for his own talents a high esteem, which was 
increased as he left his native village for Berlin. He was fond of 
reading novels and plays when quite young, and afterwards made 
attempts at writing poetry and dramas. At school his industry 
was irregular. He was chiefly interested in German literature and 
religion. In his bearing he evinced a fiery ambition, which rendered 
him sensitive and given occasionally to violent outbursts of passion. 
In his German compositions he displayed an elaborately luxuriant 
imagination. Contrary to his own inclinations and plans, his father 
sent him to a normal school to fit him for the position of school- 
master. At home he had received a very strict religious training; 
but while at the high school he read much on such religious sub- 
jects as tended to lead him to the furthest remove from all religion. 
The life he led at the normal school, and his distaste for his 
destined profession, first aroused the spirit of opposition in him. 
Then came the influences of philosophical studies, especially the 
writings of Spinoza and Kant. At length he was induced to throw 
all religion overboard, and became a decided materialist. He was 
fond of conversing, with such few intimate companions as he pos- 
sessed, of his own views and of his conviction as to the truth of his 
position. He attributed the stupidity of the masses to the teaching 
of the clergy, for whom he constantly expressed the most bitter 
hatred. 
A previously conceived plan of adopting the profession of actor 
gradually ripened into full determination. He purposely allowed 
himself to fail at the normal school examination in hopes of securing 
his father’s consent to become an actor. This consent was reluctantly 
given by his father, wTho was deceived by a letter from the son, 
painting in extravagant terms his own despair over his failure at the 
examination, and also the flattering praises bestowed on his histri- 
onic abilities by the director of the Urania. He received the neces- 
sary funds for securing an engagement at the same theatre. From 
this time he began a life of great irregularity and dissipation. His 
father prevailed on him, after a few months, to return home to revive 
828 BOOK I.] 
BIELAND. 
FANATICO-MANIA ? 
[§ 833 
his shattered health, and at the same time endeavored to persuade 
him to take up his former studies, refusing to advance him any- 
more money. Bieland pretended an assent to his father’s wishes, 
and agreed to undergo another examination. On the 6tli of August, 
two days before the affair at the Dom-kirche, on a pretence of 
visiting the scene of his future labors as teacher, he went instead 
to Berlin. He left behind a note written in pencil to his father, 
upbraiding him severely for not keeping his promise to furnish him 
the means of acquiring the actor’s profession. He closed with these 
works : “ Do not search for me, I shall go in a few days to Wolters- 
dorf to visit my grandmother, and then . You know not what 
despair is , therefore now you have no longer a son; oh, your 
blindness!” The same day he wrote to his father from Berlin in a 
similar strain, closing as follows: “I have but a short time to live, 
until then leave me in peace, else you will only hasten my death; 
then you would be my murderer.” 
He took with him from home a pocket pistol loaded with a ball 
made from a Schiller medal, with the purpose, as he afterwards 
avowed, of killing a clergyman, and thus with the greatest possible 
eclat giving a public expression to his belief. On the 6th he 
looked up an acquaintance of his, L. H. by name, took a stroll with 
him, visited several dance-houses at night, and did not sleep at all. 
On Saturday the 7th he went back to his friend L. H., made 
several family calls, and spent the night with him. He remained 
with L. H. until Sunday at eight o’clock, and then took his leave, 
without mentioning where he was going. 
While L. H. had always looked on him as excitable and eccentric, 
he expressed the opinion that Bieland during the last few months 
had seemed more sedate, and on this very Sunday morning had ap- 
peared perfectly in his senses, and exhibited nothing excited or 
peculiar in his demeanor. 
Bieland betook himself, as soon as he had left his friend, at once 
to the church where the attempt above described -was made. 
Otto Bieland is a person of middle size, regularly built, with broad 
shoulders, dark hair and eyes, a pale face, and on the upper lip a 
thin moustache. His demeanor is quiet without being apathetic. 
There is nothing fanatical in his nature. He is rather curt in his 
manner of speaking, confines himself strictly to the questions put to 
him, and seldom goes beyond the answers. His views on religion 
and philosophy, although clumsily expressed, display considerable 
clearness and logical connection, and show distinct traces of the 
829 § 833] 
MEDICO-JURIDICAL OPINIONS. 
[BOOK I. 
influence of Spinoza’s ideas. With youthful fearlessness he accepts 
the full consequences of his cosmical speculations, and makes his 
own conviction the rule of conduct in practical life. According to 
his view, religion has always been the means of keeping the people 
in childish ignorance, and, though at certain times it may have been 
of practical utility to them, is now but a shackle which must be 
broken. His hatred for the clergy was the predominant sentiment 
that led him to attempt the outrage at the church. It was very 
easily ascertained, however, that this was not his sole motive. Life 
had become no longer a source of satisfaction but of disgust to 
him. That his stay at the normal school, and the prospect of enter- 
ing on the hated profession, must have proved intolerable is evident. 
He hoped to lead a more satisfactory mode of life as actor. While 
he despaired of resisting in any other way the ruinous influence of 
the clergy, he hoped to attain this object, partially at least, on the 
stage. But when, after entering upon this career, he met a serious 
obstacle in the opposition of his father, who endeavored to induce 
him to return to the teacher’s profession, and refused him the re- 
quisite pecuniary assistance, then was developed in him the deter- 
mination of putting an end to his life. This, however, should take 
place in no ordinary way. His characteristic vanity prompted the 
wish that it should occur with eclat, and that he should become a 
martyr to his ideas. At the same time with this project he adopted 
the resolution of satisfying his hatred of the clerg}r. He resolved 
on killing a clergyman in public discharge of his office, and, if pos- 
sible, to commit suicide on the spot; but, if he failed of this, to die 
by the hands of the hangman. 
The whole affair appears as a kind of “ modified suicide.” He 
wanted to end his life, and at the same time to deal the world and 
his imaginary enemies a slap in the face. The manner of executing 
his plan indicates his own high-strung, vain, and dramatic nature. 
It is also in keeping with his character that he experiences no 
regrets. He owns that the execution of the plan was awkward, and 
perhaps the whole project was imperfectly devised ; but persisted in 
maintaining that he was justified in carrying it out. He holds that 
every act and every resolution are the product of man’s bodily con- 
dition and the outward influences acting on him. Under the in- 
fluence of the particular mood he was in, he had to do the act neces- 
sarily. There is no free-will, generally speaking, and also no 
accountability. On the other hand, he does not deny the right of 
society to guard against such persons, or not to let them go un- 
830 BOOK T.] 
BIELAKD. FANATICO-MANIA ? 
[883 
punished; and he calmly accepts the punishment that awaits him 
as the consequence of his conduct. After duly considering the 
course which Bieland’s mental development took, I have arrived at 
the opinion that the act has the appearance of being inexplicable 
and without motive. The question, however, remains to be answered, 
whether it was mental disease that made his development so pecu- 
liar. 
In answering this question it is important to bear in mind that 
no period in time can be given in which the disease may be said to 
have commenced. From his boyhood, the development proceeded 
uniformly in the same direction. Nowhere do we find a sudden 
change in his previously normal state. Even his present physical 
condition cannot be considered morbid. His views of life and re- 
ligion, etc., bear the marks of unripe, youthful eccentricity and in- 
completeness of culture, but are not such as would denote insanity 
His memory is good, his understanding in keeping with his age and 
grade of culture. There are no symptoms of any brain disease. 
As long as he can remember he has had good health. During the 
teething period in infancy he had convulsions once, and afterwards, 
as his father declares, he was at various times attacked with croup, 
w'hich was accompanied with inflammation of the brain. But as to 
the,latter disease he seems to have been rid of it very early, and 
the fact that his understanding developed afterwards so normally 
makes it quite unimportant. He himself recalls the last attack of 
croup, which was unattended with symptoms of brain disease. 
During the last summer he had a hacking cough, and his physician 
discovered slight disorders of the heart. The organ was somewhat 
enlarged, and in the right side a rattling was heard, the pulsations 
were loud and prolonged. Although these conditions still exist, 
he has suffered no inconvenience from them, except in walking 
rapidly or running up stairs, which cause considerable palpitation, 
but no congestive affections whatever. This seems to be the only 
abnormal circumstance in his physical system ; the digestive func- 
tions are perfectly normal. Swoons, vertigo, or paralysis have 
never appeared. His utterance is distinct; his gait and form nor- 
mal ; the pupils of the ejms are uniform, and react normally against 
the light. 
Two letters from Bieland to his teacher, of all that he has written, 
alone contain any words that bear on the act committed by him. 
Both give a vivid picture of his exalted, highstrung condition, his 
831 832 
MEDICO-JURIDICAL OPINIONS. 
[BOOK I. 
extremely tender and exquisite sense of honor, as well as an ambi- 
tion morbid for a boy scarcely sixteen years old. 
The second letter contains a few expressions that may lead one 
to suspect the existence of a really morbid state. He speaks of a 
fearful anxiety “ which overpowers me, when alone in the evening 
in my chamber. I fall on my knees; I wrestle and plead for self- 
control and mercy, for amelioration of my sufferings.” Such kinds 
of anxiety possess considerable importance in psychic affections, 
and I have taken the pains to investigate the indications of the let- 
ter. Although I suggested sufficient answers, he knew not what to 
sa}r to the fact that he was subject to these moments of 
He remembers writing the above letter and the trifling circumstances 
at school that called it forth. He described his physical condition 
at that time, the struggle between his early inculcated religious 
ideas and the new views that possessed him; the violent feelings 
excited by any insult and by what he deemed undeserved blame 
received at school, his already matured opposition to the profession 
of teacher; he related how often he was in the most unhappy and 
miserable frame of mind. But anything that might denote prsecor- 
clial anxiety could not be elicited from him. Nor could his father, 
his friend, or his landlady explain the cause of these attacks. But 
we must not fail to notice that the exaggerated style of the letter to 
his teacher is the same as that which we find in the letter to his 
father written with the aim of being permitted to go on the stage. 
In each we recognize something affected and theatrical. That these 
attacks of melancholy were wanting at the time of the attempt, is 
evident from the account already given of his condition just before. 
According to the statement of his friend, he seemed perfectly calm 
not only the evening previous, but on the very morning of the act, 
the plan of which he had carried about with him for a long time. 
His teacher, to whom he addressed several letters, informs us 
that Bieland in his compositions often speaks of visions that he 
had seen. These were regarded b}T the teacher more as poetical 
fancies than as realities, an opinion which Bieland himself corro- 
borated. 
His family were not subject to mental diseases, nor did they have 
any hereditary predisposition to them; which facts furnish no ex- 
planation of his eccentric nature. His father is a sober, stern man; 
his mother was of a violent and excitable nature, had suffered much 
from headache, but without the slightest symptoms of mental dis- 
orders. His grandparents were also healthy in this respect. 
832 BOOK I.] 
SIMULATION. “MECKLENBURG PRINCE.” 
833 
I have been unable therefore to conclude that Bieland had any 
mental disease at all; but that the act committed by him must be 
explained psychologically by means of the peculiar kind of mental 
development given above. 
I therefore accord with the opinion that Otto Bieland is not in- 
sane, and ought to suffer the consequences of his acts; and that there 
is no ground for the assertion that he was in any other condition at 
the time of the act. 
[Since the above was written, Bieland was sentenced to impri- 
sonment, and died shortly after of phthisis.] 
II. Fraud, “ Insane delusions,” Simulation. 
(Liman’s Casper, No. 275.) 
§ 834. Carl Schraber,(a) “the Mecklenburg Prince,” was arraigned 
on the charge of fraud. He pretended to his victims that he had 
a legacy of 10,000 thalers, and showed them the legal documents, 
which were skilfully counterfeited by means of false seals, etc. At 
the first hearing of the case on the 1th of September, he made a 
public confession, and maintained that he was the son of a draper 
in G , and had an insane brother (which was true), and a 
sister. To the end of the hearing he abode by these statements, 
and, according to the report of the coroner, exhibited no signs of 
insanity or of mental weakness, but rather those of a consummate 
deceiver. His wife, who at the first hearing had not testified that 
there was anything strange in her husband’s demeanor, afterwards 
(Nov. 11) made the deposition that her husband often appeared 
absent-minded, spoke frequently in an incoherent and disconnected 
manner. This, however, carried no weight with it, and Schraber 
was sentenced to two years’ imprisonment and fined 6200 thalers. 
This sentence was communicated to him on the 20th of November; 
whereupon he declared that he would resort to legal remedy, em- 
ployed a counsel, and requested permission, during the prior con- 
finement in prison, to finish some writing he was engaged on, and 
to see his wife in regard to procuring the needed money. He was 
supplied with writing material. He drew up two letters, one ad- 
dressed to the king, the other to the Grand Duke of Mecklenburg- 
Strelitz, both dated November 30 ; he also wrote a so-called defence. 
To the king he represented himself as a prince nearly related to 
his majesty, and besought him to transport him to a royal castle, 
(a) See supra, § 145. 
vol. i.—53 
833 834 
MEDICO-JURIDICAL OPINIONS. 
[BOOK I. 
where in the house of his royal cousin he could settle the fact of 
his princely birth, and speedily end his other troubles. In the letter 
to the grand duke, he declared himself to be a legitimate son of the 
late Duke N. of Mecklenburg. That it would be all the easier to 
carry on the necessary investigation through his ambassador (the 
person he had chosen as counsel) as the domestics of his late father 
were now in the household of the grand duke. But in order that 
the appanage of the house might not be an expense to the country, 
he wished to offer his services to the King of Prussia, and to leave 
to Prince Z. his entire estate. In the so-called defence, he speaks of 
his bodily weakness and the severity with which events had dealt 
with him, counselled his majesty to increase the army and navy 
(the latter task he himself would undertake), and to watch Russia 
with a jealous eye, etc. etc. He mentions that he had taken up with 
business, at the instance of his pseudo father: and gave a minute 
account of his insane brother’s unfortunate condition. Then he 
abruptly turns from his experience at Gottingen to saying that to- 
morrow the weather would be favorable for parade, and he would 
be present in uniform, and requested his counsel to mention to the 
king to provide horses, uniform, and arms for his personal retinue. 
Prom Hanover he said he went to Bremen on business, remained 
there two years, then returned to his home; from that time he dates 
the beginning of his troubles. He closed by expressing wonder at 
his own blindness and negligence in not claiming his rights sooner. 
An investigation into his mental condition was instituted at 
once, and many witnesses examined. His wife deposed that he had 
risen often in the night to write, and talked at the same time about 
his great fortune; also took her for another woman at such times, 
and spoke to her concerning his wife ; on the following morning he 
would have no recollection of what had taken place. He has related 
often how he was the illegitimate son of the Grand Duke of Meck- 
lenburg-Strelitz. 
Dr. S. who had treated the accused some two years previous be- 
came convinced that he was an eccentric man, apparently lacking 
in judgment, for he revealed the minutest details of his family affairs 
(no mention was made of his being prince); but no traces of in- 
sanity noted by witness. 
Mr. S. the clothier, and advocate K., who knew the accused well, 
testified that he was frivolous, odd, and excitable, but that they dis- 
covered not the slightest signs of insanity. They testified, however, 
that there was a morbid tendency of the mind peculiar to his family; 
834 BOOK I.] 
SIMULATION. “MECKLENBURG PRINCE.” 
835 
besides the insane brother, his sister had shown at times symptoms 
of insanity. 
Mr. Y., who was one of the victims of his deception, testified that 
he had appeared to him as perfectly sane. 
The testimony of his father is important. He mentions the fre- 
quent violent conduct of his son towards strangers, towards his 
family, and towards himself. This he attributed to his excessive 
pride; but that it ever reached the pitch of insanity he could not say. 
“ He knew well enough what he was doing, and could be pleasant 
when he wished. I know nothing about the story of his princely 
descent.” 
The authorities of his native towrn stated that S. had frequently 
deceived, robbed, and quarrelled with his father, and there was 
strong suspicion of his having attempted to take his father’s life 
for the sake of getting the property. 
S. is now 38 years of age, of middle size and dark hair; his 
forehead is protruding, his complexion sallow; his look is piercing 
and his physiognomy ugly; his features express frankness, decision, 
and assurance. His speech is fluent, now and then affected, indi- 
cating a half-educated but clever person. Physically he is not 
healthy. Not merely the sallow countenance, but also bilious 
marks on his breast and abdomen indicate anomalous functions in 
the abdominal regions, which may account, if it does not justify, 
the violence of his nature mentioned above. A double hernia in- 
creases the constipation with which he is often troubled. From 
these abdominal disorders arises a symptom which appeared a 
month ago, namely, excessive hunger and thirst, which he tries to 
pacify with the richest food and a great quantity of cold water, and 
which produces a correspondingly immoderate secretion of urine. 
On the occasion of my first visit I caused the conversation to turn 
from the subject of his physical complaints to those of his descent, 
in the course of which he inadvertently remarked that he resembled 
his insane brother very much; also while dilating on the violent 
disposition that characterized his father and himself he dropped 
the remark, “ it was a trait peculiar to our whole family.” 
On the 18th I found him suffering from a bilious attack. He 
soon touched upon the topics of his majesty and the grand duke. 
I mentioned that I was from the same country as he, and inquired 
if he knew any other countrymen here. He mentioned, as I anti- 
cipated, advocate K. to whom he is related, saying in the same con- 
nection that K.’s father had married his sister. His two fellow- 
835 § 834] 
MEDICO-JURIDICAL OPINIONS. 
[BOOK I. 
prisoners complained that S. was noisy during the night, spoke of 
the king, etc. On the 23d I visited him again; he had been bois- 
terous during the night, and had beaten one of his companions. In 
my last visit I took up the ideas of the accused, and bade him 
reflect on the improbable nature of his pretences. I told him he 
did not resemble the grand duke at all, to which he only replied, 
“ Do I not ? That is strange ; I don’t see why he has always loved 
me so.” To the question why he had not advanced his claims sooner, 
he replied, “ Because I was living happily, and had no inducement 
to change my condition ; now, however, I must set forth these 
claims.” He seemed more restless and ill at ease; complained of a 
bitter taste; his tongue was slightly coated. It was on the 2Itli 
that he complained of the excessive hunger and thirst and frequent 
inclination to urinate, already mentioned above. There were no 
other objective signs of disease. I asked him if he was not now 
convinced of the falsity of his representations ? He replied coolly, 
“ I have thought of the whole matter a great deal, and can see it 
in no other light. From the first I had no confidence in you, be- 
cause I believed you were sent here Ity the opposing party,” by 
which he signified the grand duke’s family. I returned once more 
to the subject of his physical condition, and said his frequent desire 
to urinate indicated a very rare disease, and asked if his father did 
not also suffer from it; after a moment's hesitation, he said; “ But 
he is not living,” etc. 
On the 31st I found the accused in chains for violent treatment 
of his fellow-prisoners. To-day he seemed quite changed; he made 
use of obscene and coarse expressions, and was rude in his manner, 
such as, “ that is none of your affair,” “just give me more to eat 
and drink,” etc. He soon, however, began to harp on the expected 
“ heir” and “ prince” of his family (his wife was then pregnant), 
etc. This change in his conduct towards me afforded the oppor- 
tunity of giving my researches a new direction. Of his own accord 
he began on the duke. Then I addressed him in a stern manner, 
reproached him for his unbecoming conduct, and told him that I 
had heard enough of his nonsense, and had been lenient with him 
on account of his bodily illness. Now, that he was better, I would 
listen no longer to his silly tales, though I had seen through them 
long ago, etc. This made a marked impression upon him. He was 
evidently puzzled, and answered in a low tone, “ I am fully con- 
vinced ; I regret that you don’t believe it.” 
The above are the main results of my investigations into this 
836 BOOK I.] 
SIMULATION. “ MECKLENBURG PRINCE.” 
837 
case, upon which I founded the opinion relative to his present mental 
condition, and to the state he was in at the time of the act. It is 
this, that Schraber was only feigning insanity. We are not to 
overlook the fact that there is a combination of circumstances 
upon which a disposition and even a further development to insanity 
may be based. A man who, as S. has been described, is suffering 
from abdominal affections, is proud (a character than 
which but few are more disposed to insanity), who is generally 
eccentric, high-strung, and nervous, and who, in fine, is given to 
excessive drinking, such a man, I say, can more readily become in- 
sane than thousands of others. When, too, the hopeless insanity 
of his brother, and the occasional wanderings of his sister, are con- 
sidered, the possibility is greatly enhanced. In establishing any 
circumstance of legal justice, however, or in proving the mental 
condition of a man, the question is not about mere possibilities, 
but, as far as it is practical, we are concerned only about sure proofs. 
Now, it is obvious, that from the circumstance mentioned above, 
it could not be concluded that S. was really insane. However 
much the character of a man like S. may tend to insanity, yet daily 
experience proves how frequently no such insanity follows. Very 
little importance can be attached to the insanity of his brother, for 
no one can tell what somatic and psychic causes of a purely indi- 
vidual character may underlie that disease, etc. As to the al- 
leged insanity of his sister, it rests on the solitary testimony of 
advocate Iv., who had it from hearsay. It were more precarious 
to draw any conclusion about S., from the state of his brother’s 
and sister’s health, than if this had been more positively ascei*- 
tained; but, even if it had been proved that both brother and sister 
had gradually become insane from and by means of the same cast 
of character, even then it would not follow from this alone that the 
apparent insanity of S. can be traced to any real family and here- 
ditary insanity. Nor can much weight be attached to his conduct, 
since expressions and acts of a subsequent period have given such 
strong ground for suspecting that his actions were feigned. 
On the other hand, the testimony of his wife on the first exami- 
nation, the substance of which is given above, cannot be passed 
unnoticed. According to it S. would be proved to have been pre- 
viously and to be still suffering from mental disorders, if we accept 
said testimony, as well as her subsequent affidavit, as unanswerable. 
We cannot attach so much weight to this testimony when we re- 
call the fact that her written affidavit was dated November 11, 
837 838 
MEDICO-JURIDICAL OPINIONS. 
[BOOK I. 
while her husband’s sentence was published on the 20th. Still 
greater doubt is thrown on her testimony, if we ask the question, 
what could have induced Mrs. S., three months after her husband’s 
arrest, to bring forward an information so important for him, but 
to which there is not the slightest allusion in her first affidavit, and 
which she has voluntarily made. This doubt becomes more con- 
siderable if we weigh well the fact that in Mrs. S.’s petition of 
October 29, she states that her husband was every day expecting to 
hear of his sentence and to be removed. 
It does not fall within the province of medical jurisprudence to 
inquire how she came by this knowledge, and whether an under- 
standing could not have been had between them about a certain 
conduct to be assumed by him. It is, however, a matter of psy- 
chological interest, that while momentarily expecting the sentence 
(October 29) of her husband, she should omit in her petition the 
important information on the sanity of her husband, which she 
only gave a fortnight afterwards. Under such circumstances the 
few representations of Mrs. S. must fail to affect the judgment of 
the case; and I have dwelt so long on them because they are the 
main arguments on which the alleged insanity of the accused rests. 
I, therefore, deem it necessary to bring forward another internal 
reason for rejecting Mrs. S.’s statements that her husband had for 
a year past held the notion of his princely descent; and that reason 
is this, that, in closing the contract with Gf., whom he swindled, 
Schraber acknowledged to him that his father was a very wealthy 
merchant of Mecklenburg. 
It is evident that it must have better answered his purpose in a 
pecuniary transaction, to make that assertion than to claim an ille- 
gitimate descent from a dead prince; and it is contrary to all medi- 
cal experience for persons possessed “of fixed ideas,” not only to 
forget or ignore them, but even to entertain or assert the very 
opposite. Suppose that from the above it be granted that S., before 
and at the time he committed the frauds charged to him, was laboring 
under some delusion, it would not be difficult to prove that even then 
he might be accountable for that crime. 
It would be extending the province of unaccountability beyond 
all reason, beyond all the limits of unprejudiced psychological in- 
vestigation, to allow a single delusion to establish it. Delusion is 
the fettering the mind, of itself, as generally free, to some fixed 
idea; and experience has taught us, in numberless cases, how per- 
sons have been seized with such a monomania, beyond the special 
838 BOOK I.] 
SIMULATION. “MECKLENBURG PRINCE.” 
839 
sphere of which they have not shown any signs of insanity in their 
words and actions, so long as the mind controlled this fixed notion 
by retaining its objectivity, and recognizing it as an illusion, from 
which, however, it was unable to free itself. Only when the fixed 
idea gains greater power and dominion over the understanding, 
when the latter can no longer recognize it as a delusion, when, in 
that case, a man is driven from the false standpoint of this delusion 
to commit a wrong act, then only is an act no longer measurable 
by the usual standard. In such a case the individual, as experience 
shows, will advance from the state of special to that of general in- 
sanity. Accordingly, if S. in the previous summer had annoyed 
the sovereign with the fixed notion of his being Prince of Mecklen- 
burg, then would he have proceeded to act from the standpoint of 
this fixed delusion; whereas the counterfeiting of papers—not, in- 
deed, such as relate to his becoming prince, but to his procuring 
money—has not the slightest connection with his (alleged) insanity. 
On the other hand, everything goes to prove that S. had the perfect 
use of his mental faculties before and at the time of the act. Neither 
his father nor any of the witnesses had discovered any trace of in- 
sanity in him. The manner in which he executed his frauds evinces 
the most systematic, cunning, and skilful planning; while the act 
itself stands in close psychic relation to the reputed frivolity of S., 
a man who would leave no means untried (not even parricide, it 
would seem) to gain for a desired object a substantial and lawful 
existence. Therefore, I do not hesitate to give my judgment on 
one of the questions put to me: that Schraber at the time of the act 
was accountable. If I have succeeded in proving that he was ac- 
countable at that time, it may also be fairly accepted that his present 
insanity does not exist, and that he is feigning the same, in his own 
interest, so far at least as he maintains that the present is a con- 
tinuation of a former insanity. To sustain these opinions more 
direct proofs can be advanced. I am not disinclined to bring up the 
external appearance of S., which I have carefully studied. How- 
ever much of his behavior is due to his condition as prisoner, never- 
theless his frivolous conduct is certainly very striking in one who 
claims to be a prince. Compare the pretended kings and princes of 
our insane hospitals; contrast their haughty, dignified demeanor 
with the conduct of S., etc. An inner psychologic falsehood lies 
in the assertion that he had not claimed his rights as prince sooner 
because he was happy in his present condition. If he felt himself 
to be really Prince of Mecklenburg, lie could not feel happy in that 
839 § 835] 
MEDICO-JURIDICAL OPINIONS. 
[BOOK I. 
straitened, limited condition, from which, by his swindling opera- 
tion, he hoped to rise. His conduct in prison towards his fellow- 
prisoner, his rudeness to myself, and his boisterousness at night, 
involve plain contradictions. Here, as is always the case with de- 
ceivers, he confounds the symptoms of lunacy, madness, etc. etc. 
Of greater importance in judging of this case are the instances of 
unintentional betrayal on his part of his character as simulant. 
When he asserts that he resembled his insane brother, that fierce- 
ness was a peculiarity of his family, that advocate K.’s father had 
married his (S.’s) father’s sister, he concedes that he is Schraber, 
and forgets that he is of a princely famity. Is ever, however, does 
an insane person, unless convalescent, forget his role as S. did, for 
the reason that he is not feigning. Finally, to substantiate his ac- 
countability, we would mention the eagerness with which S., both 
verbally and in writing,, endeavored to exculpate himself from his 
crime. All these contradictions can be explained only in the 
opinion already given. 
In consequence of this decision S. was ordered to several years’ 
service at the house of correction. When conducted thither, he 
declared that nothing could serve his cause any longer, and con- 
fessed that he wished to deceive us all, and was satisfied with my 
judgment. 
III. Larceny, Simulated imbecility. 
(Liman’s Casper, No. 278.) 
§ 835. On the 1st of July, Mr. F., a shoemaker, brought Samuel 
Walter, a young Jew, to the police station, and complained that he 
had been swindled by him. Six weeks before, Walter came to F.’s 
shop and requested to buy old gold and silver. On laying the same 
on the counter, Walter offered to take it in order to go and get it 
tested. When this was refused, he ordered a pair of boots, and 
told F. if he would come to his father’s house, whose name he gave 
as Abramson, he would receive orders for six pairs. Thereupon, 
in consideration of one thaler earnest money, paid by Walter, S. 
delivered to him the gold and silver. The accused did not reappear, 
and S. complained that he had been swindled; for, on inquiry, he 
found that no such family as Abramson lived in the alleged house. 
On the 1st of July F. accidentally met Walter in the street, seized 
him, and brought him to the office, as above. The accused denied 
having bought the gold; but this was sworn to by eye-witnesses. 
The accused said that, after ordering his boots, F. and his wife 
840 BOOK I.] 
WALTER. SIMULATED IMBECILITY. 
[§ 835 
showed him the gold and silver, which he bought for a thaler. As 
soon as he paid the money he noticed that the metal was brass, and 
on his charging the couple with this, they fell upon and beat him 
out of his senses. The other allegations of F., Walter denied per- 
sistently, especially at the hearing of November 11. I will detail 
below how differently Walter conducted himself at the medical ex- 
amination. His father had given out that his son’s mind was affected, 
and that he suffered frequently from cramps, and referred to an 
affidavit of Dr. D., dated July 2, and the records of the local com- 
mission which nominally discharged the accused on the ground of 
imbecility. Dr. D. certifies only that “ for some time past the pa- 
tient suffered from rheumatic affections, and is of a weak mind 
nothing said of cramps and real disease of the mind, 
f. An investigation being ordered, I went to W.’s house, found only 
the father at home, who was suspected of inducing his son to feign 
imbecility. This suspicion was confirmed by the long conversation 
I had with him. He described the condition of his son in evidently 
exaggerated terms, answered my questions with cunning and eva- 
sive replies, manifestly to prevent my gaining a clear insight into 
the case. He alleged that his son could rarely be found at home, 
as he ran the streets the whole day. On my asking at what hour he 
dined, he replied, “ when dinner was readjq sometimes at one, two, 
three o’clock,” etc. By insisting on seeing him, the father after- 
wards brought him to my office. 
Walter is twenty years old, apparently healthy. I dismissed the 
father, but could elicit no connected conversation from the accused. 
He shuffled into the room where I was in a half-limping gait, with 
his arms hanging listlessly by his side and his head leaning upon 
his breast, and to all my questions he only replied “I know nothing,” 
and retained a dogged sullen attitude to the last. 
I have, however, not the slightest doubt that young Walter was 
practising the most barefaced deception. In the account given of 
his demeanor we cannot fail to recognize in it the deceiver, but cer- 
tainly no traces of the imbecile. If his lameness and his awkward 
manner were not feigned, he would not be in condition to roam 
about the streets or be allowed away from home alone. The father 
said W. went out every day, and yet thought it necessary to accom- 
pany him when sent for by me; probably because he hoped his 
influence and his communications might be of service in the 
examination. 
The accused it seems conducted himself, as we have already seen, 
841 842 
MEDICO-JURIDICAL OPINIONS. 
[book I. 
quite differently at the legal hearing. Such a radical change in his 
mental condition during the short space of two months is inexpli- 
cable. In contrast also with his present conduct is his behavior at 
the time of the act eight months ago. He who is not a real Cretin, 
who can only stammer out “ I don’t know,” when questioned, was 
then not only able to carry out his swindling operation success- 
fully, but showed that he was an expert in the business. It is con- 
trary to medical experience, that any such change in a man’s 
mental state should occur except from the most extraordinary 
causes; but the father declared that his son had contracted the 
disease in question, by a fall during childhood. This is probably a 
rank falsehood, as is shown by medical experience in the past, that, 
when imbecility has resulted from a fall sustained in childhood, it 
does not in its progress, as the elder Walter would have us believe, 
suddenly rise to a strikingly high degree only after the lapse of a 
long series of years. It is our opinion, therefore, that the accused 
was feigning his imbecility both now and at the time of the act, 
and is accountable for the same. 
IY. Larceny, Simulated mania. 
§ 836. Goin, a tall, powerfully built man, was arrested on suspicion 
of having committed repeated thefts of a grave character. I was 
informed that during the first day of his confinement, the prisoner 
seemed quiet and in his senses, but already towards evening mani- 
fested symptoms of insanity which continued through the following 
day, and in the course of a subsequent hearing became so striking 
as to call for an inquiry. 
I had already begun to suppose a real case of insanity in the case 
of G., after merely having watched him through the window of his 
cell. With restless step he paced up and down the room with a 
rag in his hand. My entrance, which I allowed to appear as unin- 
tentional, made no impression upon him. To my questions he gave 
no answer, but as during the hearing, talked continually about his 
sword and his crown, especially also about devils and creatures 
crawling on the walls. He showed me that he had caught a “ Beel- 
zebub” in an inverted dish. These devils and animals returned 
constantly; and at such times he had an excited expression of the 
face that seemed peculiar to him, casting wild glances from one 
portion of the cell to another. His pulse was rapid, and his agita- 
tion betrayed itself in the fact that he wept easily. The keeper 
(Liman’s Casper, No. 281.) 
842 BOOK I.] 
GOIN. SIMULATED MANIA. 
[§ 836 
affirmed that G. was delirious and restless at night. All these facts 
indicated the character of an attack of delirium tremens. I there- 
fore ordered him to be taken to the asylum Chariffi, which ended 
my task for that time. At the asylum during a treatment of several 
months, he presented a picture of the deepest mental depression. 
He would stand during a whole day leaning against a door-post, 
without saying a word, but staring vacantly. The application of 
the most powerful stimulants could not rouse him from this apathy. 
When finally his conduct was put to the extreme test, of subjecting 
him to the influence of chloroform, and when the same apathy 
returned as soon as he awoke, then all suspicions of dissembling 
were removed. One morning, however, as the patients were going 
to the bath, G. improved the chance to escape. He betook himself 
at once to his accomplices, who now aver that he seemed then in 
possession of his senses. He took part in their renewed thefts, but 
was again caught and arrested the following week. To the officer 
who arrested him he appeared perfectly in his senses. He sud- 
denly threw snuff in the officer’s eyes, with the evident intention of 
trying to escaipe. 
Immediately after he was locked up he exhibited signs of mental 
disturbance. Without interruption for a whole week he kept up 
consistently the role of an insane person; with folded arms he 
walked up and down, stared vacantly about, and in conversation 
muttered, “ Yes, I have taken all of minein fine he presented 
the picture of a thoroughly insane man. His fellow prisoners 
assured me he had not appeared otherwise a single moment. At 
night, however, he was quiet, and his bodily functions were regular. 
His escape from the asylum had the effect of arousing the suspicion 
that he was feigning insanity, however cleverly he had done so; and 
the suspicion was enhanced by the fact that while at large he had 
seemed perfectly sane and only began his previous role again the 
moment he was recaptured. He was ordered therefore to be put 
in solitary confinement, after the surgeon of the prison had applied 
a most painful cataplasm to the back of his head ; and was allowed 
only a quarter portion of the so-called infirmary diet, which is less 
than a strong healthy man needs. G. stood these severe tests for 
a whole week with the most extraordinary fortitude, and continued 
unchanged through it all, as I had ample opportunity of verify- 
ing by personal observation. He also stood another still severer 
test. I had him suddenly awakened out of a deep sleep in the 
middle of the night; not a word did he say to the watchman, but 
843 § 837] 
MEDICO-JURIDICAL OPINIONS. 
[BOOK I. 
quietly turned over, and lay down on the other side. But that 
which neither setons, chloroform, nor cataplasms were able to ef- 
fect, was brought about at last by hunger. After the special diet 
had been tried about ten days, during which he kept up his insane 
actions incessantly, after he had endured hunger for that length of 
time, he told his keeper one morning “to bring something decent 
to eat”—was cured of his insanity, nor did any relapse take place, 
as I had assured him that in that case I should repeat the cure that 
had proved so successful. 
My opinion of the case is clear. I have only to add that his 
residence at the asylum was very useful to him in affording him 
opportunity to observe real cases of insanity, one of which, as I 
found out, he had so faithfully imitated. Gr. was condemned to a 
number of years at the house of correction. 
V. Attempted Infanticide, Hystero-epilepsy, Melancholia. 
(Liman’s Casper, No. 284.) 
§ 837. On the 21st of July, S. attempted to commit suicide by 
hanging, but was cut down and her life saved. On the 2d of July, 
she had been confined at the H. hospital, and, on account of an ulce- 
rated breast, was sent with her child to the Charite. Shortly after, 
the child was found in bed, with a nurse bottle thrust so far into 
its mouth as to nearly strangle it. As V., one of the witnesses, re- 
moved the bottle, S , who was standing on a chair with a cord about 
her neck, exclaimed, “ Let the child lie, she is not dead yet.” Mrs. 
Petrosini, with whom S. had stayed about nine days, testified that 
she had never observed any particular dislike in S. for her child. 
P. had taken her in because she was in search of shelter for her 
child and employment for herself. P. testified that on the last 
evening before the act, S. began talking in an incoherent manner, 
to appear indifferent to and to neglect her child. Dr. P., who looked 
after the child, discovered no traces of violent treatment. While 
at the Charit6 S. was placed in the ward devoted to internal dis- 
eases of women, but in the course of a few days was removed to 
one for insane patients because she showed marked symptoms of 
mental disorders. She would sit apparently indifferent to her child 
and all her surroundings. Suddenly with an anxious face she 
would start up, walk up and down the floor, would weep and mutter 
complaints to herself about crimes that pressed heavily upon her. 
To questions put to her, she replied in words foreign to the subject. 
She refused to take food, and was unwilling to be put to bed; by 
844 BOOK I.] 
S. HYSTERO-EPILEPSY. 
[§ 837 
her distress and agitation she greatly disturbed the other patients. 
She remained in the ward for delirious patients until the 12th of 
March, when on recommendation of the surgeon, who pronounced 
her incurable, she was sent to the insane hospital. We cannot go 
into a detailed discussion here of the fact that she was nevertheless 
sent to prison after having been pronounced cured. The surgeon’s 
affidavit dated December 20, 1868, describes her condition at the 
hospital. 
She continued here in a state of nervous anxiety and wandering, 
and exhibited undeniable symptoms of mental debility. She re- 
fused to work on the most childish pretences ; she tore her clothing, 
ignored her surroundings, and took the physician and her fellow 
prisoners for near relatives. She frequently heard voices, but 
could tell nothing of what was said, because her head was so weak ; 
for the same reason she was unable to give an intelligible account 
of her condition. Even as late as January, she was one day thrown 
into great mental excitement, ran about the halls, upbraiding some 
imaginary person, and finally fell into spasms, foaming at the mouth 
and screaming in a shrill voice. About the middle of February she 
seemed much improved, became more quiet and showed some in- 
dustry in her work. 
In addition to the spasms just described, which before her preg- 
nancy were accompanied with unconsciousness and followed by 
languor and prostration, it was observed during such attacks that 
the left pupil of the eye was considerably enlarged. I will add my 
own observations to those made at the Charite. 
With the exception of a light form of mental debility, which is 
recognizable in the silly and shy nature of the patient, she is so far 
cured as to be considered sane. She is, however, unable to give any 
explanation of her criminal conduct, knows nothing of the child’s 
condition on that morning, and the words she used at the time. 
She relates 'that she felt greatly depressed on account of her desti- 
tute condition; while in reality her lover seems to have done some- 
thing towards her support during her confinement. She also said 
that, tormented with the pain in her heart, she had wanted to take 
her life. Her details of this act were confused and unintelligible. 
She represents herself to have been interrupted in the preparation 
for the act; while Mrs. Petrosini testified to having come upon her 
in the very act. She knew very little about the condition of her 
child. 
The whole course of the patient’s sickness, but especially the 
845 § 838] 
MEDICO-JURIDICAL OPINIONS. 
[book I. 
circumstance that she was sent to the Charite merely to be con- 
fined, and only exhibited the symptoms of mental disorder after 
she came there, precludes the suspicion of any deception on her 
part. On the contrary, she is a person who is subject to hystero- 
epileptic attacks which are followed by more or less prostration. 
These attacks were brought on by the psychic exaltation, at the 
time of her confinement, in which she attempted suicide, and which 
must probably be closely connected with the attempt on her child’s 
life. Both acts were induced by the morbid state of her under- 
standing, by which she was unable consciously to choose between 
conynitting and refraining from the alleged crimes; for which, 
therefore, she is not to be held responsible. 
She has not entirely recovered, but is so far improved as to labor 
for her own support. I recommend her to be retained at the hos- 
pital for some time longer. 
YI. Larceny, Initial stage of paralysis. 
(Liman’s Casper, No. 285.) 
§ 838. Strenz was accused of stealing at a restaurant, and also, 
on the same day, of pilfering various small articles in a shop. 
After he was arrested and imprisoned, Dr. Arnd, the prison sur- 
geon, announced that S.’s mind was affected. After this, Strenz 
declared his intention to abandon his business, because his em- 
ployer had discovered that he was destined for something better. 
At one time he wants to be an officer of the hussars, at another an 
opera singer, at another he calls for wine and mock-turtle soup at 
meal-times, etc. etc. 
These few facts suffice to give rise to the opinion that he is suf- 
fering from general paralysis—an opinion which was afterwards 
confirmed by observation made at the Gharite, whither S. was 
sent. We noticed in S. an unequivocal disorder in his speech, 
trembling of the tongue and the muscles of the face, and uneven- 
ness of the pupils; his gait, however, was natural. With these 
symptoms of paralysis were connected the most absurd mental 
delusions. He is to marry a wealthy woman, an actress, found a 
harem, build railways, etc. etc. 
Amid ravings and agitations, I found him clamoring that he was 
in health, and insisted on being released, in order to marry, and to 
carry out some of his other wonderful projects. After quieting 
him for a moment it was impossible to engage him in conversation, 
for he soon rattled a tiresome string of nonsense about future 
846 BOOK I.] 
D. MELANCHOLIA. 
847 
plans, marriages, etc. A letter written to his “ dearly beloved 
Alwine,” in which numerous words are omitted, etc., is character- 
ized by the same extravagant expressions. He calls himself “Don 
Juan,” “Baron Richard the Lion-hearted Strenz,” “Mormon Chief,” 
“King of the Desert,” etc. It would be impossible to give the 
variegated notions which he pours out with the most extraordinary 
volubilitj'. Enough, however, has been cited to prove the assertion 
that Strenz’s mind is seriously diseased. 
I do not hesitate to affirm that, at the time he committed the 
deed he is charged with, his mind was affected, and to such a 
degree that he had no longer any control over his acts. Even had 
there been at the time no such external signs as the above, still 
they are often preceded by moments of unconsciousness. The acts 
were committed in so public a manner, and so recklessly, as to 
confirm the opinion just given. S.’s disease is general paralysis. 
VII. Killing of child, Melancholia. 
(Liman’s Casper, No. 288.) 
§ 839. D., a small and feeble-looking man, 53 years of age, rose 
one morning and, with a hatchet, clove the skull of his youngest 
bo}r, who was lying in bed. He calmly related to his family, who 
were in the next room, and were almost witnesses of the act, what 
he had done, and as calmly allowed himself to be arrested. The 
case was at once submitted to inquiry. 
Besides the other symptoms of disease to be mentioned, we ob- 
served considerable enlargement of the liver. The very first night 
he was attacked in prison with hemorrhage of the stomach. His 
digestion was very incomplete, so that he was placed on the in- 
firmary diet at once. So far from his complaining of his sufferings, 
everything had to be ascertained by questioning him—his replies 
being characterized by the same equanimity and calmness that were 
observed from the very first. The change in his condition he 
ascribed not to his abdominal disorders, but to the sting of a fly, 
which, about a year ago, had produced severe sores on his hand, 
the scars of which were still visible. 
From this time dates, as he assured us, a period of melancholy 
which was painful in the extreme. He began to be depressed about 
six weeks before the homicide, and continued thus up to the present 
time. He had no peace of mind, but felt continually that his 
family through poverty were to perish of hunger, and his rent 
that was due very soon could not be paid. I could not reassure 
847 § 839] 
[BOOK I. 
MEDICO-JURIDICAL OPINIONS. 
him by telling him that his poverty was exaggerated, and his family 
had food enough. He relates that on the day before the act, he 
was to deliver a piece of cloth, which he discovered had been soiled, 
besides measuring two ells less than the required length. This had 
convinced him of his incapacity to work and to calculate. It be- 
came clear to him that it were better for himself and family to be 
out of the world. He was tormented with this thought all through 
a sleepless night. Therefore, according to his own confession, he 
very calmly proceeded to commit the act on the 23d of July. He 
seems to have had no thoughts of the consequences of this act, and, 
when I represented the nature of the punishment inflicted for such 
crimes, he replied with the greatest unconcern, “ I have deserved a 
doubly, yes, threefold more punishment,” and that the act was 
“incomprehensible” to him, and “horrible.” It was evident that 
his was not the equanimity of a cold hard-hearted criminal, as every 
one who noted such cases will assent to, but rather the equanimity 
of apathy, of one who had definitely settled his account with the 
world; it was the morbid calm of despair. At the recognition of 
his child’s corpse he displayed the same calmness. 
Notwithstanding these data, I hesitated to give an opinion in the 
case, being entirely unacquainted with the previous life of the pa- 
tient. I afterwards ascertained that D. had always been a quiet, 
peaceable, and industrious man, prompt to pay his rent, and affec- 
tionate toward his family, especially to his youngest son. A witness 
also testified that D. had led a very sedentary life. Still more im- 
portant is the testimony of the man to whom the cloth spoken of 
above was delivered. Not only was it perfectly free from soil, but 
the measure was correct, of which facts witness had labored in vain 
to convince him. 
We have considered in our inquiry the occupation of the patient, 
his sedentary habits, the severe abdominal affections arising there- 
from, his disposition, the inexplicable contradiction between his 
affection for his child and the murder of it, his behavior at the 
time of and after the act, the manifest symptoms of mental dis- 
turbance before the same, and everything else of importance; and we 
are of the opinion that D. at the time of the act was suffering from 
mental disorder, that he is still suffering from the same, and that 
he committed the act through mental unsoundness, in the legal sense 
of the term, and consequently is not accountable. (D. was sent 
to the insane hospital, and died in a year from paralysis.) 
848 BOOK I.] 
SCHUMANN. MANIA TRANSITORIA ? 
849 
VIII. Homicide, “ Mania Transitoria ?” Intoxication. 
(Liman's Casper, No. 295.) 
§ 840. Schumann, tavern keeper, was accused of actual and 
attempted homicide. 
On the evening of January 5,18Y1, a dance was held at the Fried- 
richstadt Halle, in Berlin. The doors of the entrance room, the 
bar-room, the front hall, and the dancing hall were open. In the 
front hall the accused had been sitting and drinking with a certain 
Mr. Mau for several hours, from ten o’clock on. They had consumed 
nearly the entire contents of four bottles of Madeira and two bottles 
of Erlangen beer. About midnight, Mau ordered Klasse, a waiter, 
to hand the cashier a glass of grog in his name. In preparing it 
the waiter by mistake used vinegar instead of arrac. When the 
accused was informed of this, he rose in great anger, rushed with 
the glass of grog in his hand into the kitchen, threw it out and 
hurled the glass at the cook, scolded and drove her from the 
kitchen. Seizing a riding whip he rushed up stairs and on the 
slightest provocation struck the porter Neuman on the back and 
face with it. He then turned on one Fischer, a waiter, who 
attempted to shield N., and drove him out of the room. Returning 
to the kitchen, he found his wife there endeavoring to calm the 
cook, who was greatly frightened; whereupon Sch. struck Mrs. S. 
a severe blow on the head with a book, and ordered her to leave, 
with the threat of hurling her into the fire. After commanding the 
cook to proceed with her cooking, he returned once more up stairs. 
In the course of an hour and a half he saw Fischer, the waiter, 
standing near the door of the dancing hall. He ordered F. to ac- 
company him to some corner where he wished to communicate 
something in private to him. As F., who was alarmed, refused, he 
was seized by Sch. Then began a struggle in which both rolled 
down the gallery stairs, Sch. falling on the waiter, and the latter 
scratching the landlord’s face with his nails. The parties were sepa- 
rated by one Preusse, an acquaintance of Sch. As the latter dis- 
covered that his face was bleeding, he rushed forward crying “ my 
revolver.” In the mean time the waiter was ordered to go home by 
the landlord’s brother, hoping thereby to put an end to Sch.’s rav- 
ing. The latter seized his revolver, and chased the waiter through 
the court and into the street, firing several shots at him, none of 
which, however, took effect. He then went back to the house. Mrs. 
VOL. I.—54 
849 § 840] 
MEDICO-JURIDICAL OPINIONS. 
[BOOK I. 
D., a constant visitor at the hall, then took him by the arm and tried 
to quiet him. Sch. complained that the waiter had assaulted him, 
and that too in public. As he came into the bar-room, Mau suc- 
ceeded in taking the pistol away from him. Sch. at once seized a 
breech-loading gun that stood near by, and, putting a handful of 
cartridges in his pocket, proceeded to load both barrels. Preusse 
removed the cartridges twice from the barrels, but Sch. l'eloaded 
them at once; finally, Preusse took the gun away, but soon gave it 
back in hopes of quieting him. After walking up and down the 
bar-room with the gun in his hand, Sch. went into the kitchen and 
inquired for Fischer, the waiter. On being informed that F. had 
already gone home, he retraced his steps to the hall in order to 
find his wife, whom he threatened to shoot. While Sch. was seeking 
his wife, she succeeded in leaving the house without being observed. 
The gun was once more taken away and placed beyond his reach. 
Several of the guests present now led Sch. to the front room in 
order to quiet him. The latter tried to shut the door between the 
rooms, but was thwarted by W., his brother-in-law, and owner of 
the place, who said “ I am landlord, and have nothing to 
say here.” The struggle at the door lasted a few minutes, when the 
accused suddenly rushed into the bar-room and returned to pelt W. 
with bottles, the latter provoking him with derisive expressions. 
Sch. then seized another gun (a percussion lock) and went into the 
kitchen to load and cap both barrels. Some one who saw what Sch. 
was doing hastened to inform W. of it. The latter expressed no 
fears that Sch. would harm anjr one. In a moment the accused 
himself re-entered the bar-room, gun in hand. The dispute between 
him and W. began again, and, while bandying abuse with Sch., W. 
dared him to shoot, which he had no sooner done than Sch. fired 
both barrels at him, one taking effect in the breast, the other in 
the side. W. dropped dead on the spot. The accused at once 
hastened into the kitchen and reloaded both barrels of the gun. In 
the mean time a crowd had collected in front of the house, and, 
when it was told that Sch. had shot his brother-in-law, officer Kohl- 
me3mr of the Garde-Fusilier-Regiment and several other persons 
went into the court out of which opened the kitchen where Sch. 
was. As Kohlme3'er boldly entered, Sch. discharged one of the 
barrels, wounding K. severely in the thigh. The latter, in spite of 
his injury, rushed upon the accused and held him down until help 
came. During the struggle the other barrel went off without doing 
harm. Sch. was then secured and taken to the police station. K. 
850 BOOK I.] 
SCHUMANN. MANIA TRANSITORIA ? 
[§ 840 
died of his wound on the 22d of January, 1871. On examining 
the accused there were found on his person nine cartridges for the 
breech-loader and four rounds for the percussion piece and fifty 
percussion caps. 
The counsel for the defendant raised the question of accounta- 
bility. Schumann, with the exception of having been imprisoned 
for four weeks on account of drunkennesss, has hitherto sustained 
a good reputation. He is a man of powerful frame and apparently 
robust. He gave sustantially the following account of himself: He 
used to enjoy good health, but for quite a while had not felt as well 
as formerly. At the present time he is suffering from some diffi- 
culty in the bladder. While he was in the army he had typhus 
fever, which lasted six weeks ; since that time he had been troubled 
with violent headaches. A loss he sustained in selling an estab- 
lishment at Charlottenburg had weighed heavily upon him, and, 
in order to forget it, he had often taken one more glass than 
was necessary to quench thirst; but as soon as he had done this, 
he would grow dizzy and everything would turn black before his 
eyes, and he would be obliged to go at once into the open air or to 
bed. Of the occurrences just related, Sell, pretends to recollect 
nothing. When informed of the mistake in regard to the grog, he 
thought his wife and the cook had been to blame, and that is why 
he had hastened into the kitchen. But he could recollect nothing of 
what had happened there; he knew nothing of whipping his porter. 
The first distinct recollection he had had was when he saw Fischer 
standing by the door of the dancing-hall, drinking beer, instead of 
waiting on the guests. Becoming angry over this, he called F. to 
him, but the latter refused to come, whereupon he had seized F. by 
the arm and begun to wrestle with him, during which both fell to 
the ground. He had felt his face bleeding; after that he recalled 
nothing. To all other questionings the accused only answered “I 
know not.” He stated that he had been publicly insulted by 
Fischer. The anger he experienced, together with the great quantity 
of liquor taken, had affected him so that when he was separated 
from Fischer, everything turned black, and from that moment he had 
known nothing of what he was doing. His consciousness only re- 
turned as he was being conducted to the police station, and as he 
was hooted at by a number of persons on the way. At the first 
hearing, Sch. stated that, after he had reached the station, he began 
to wonder that his drunken fit was so quickly over; and, when 
it was told him what a fearful act he had committed, he began to 
851 § 840] 
MEDICO-JURIDICAL OPINIONS. 
[BOOK I. 
have a faint recollection of having a gun in his hand and firing, and 
afterwards loading one in the kitchen, and of struggling with some 
one, and hearing the two reports of the gun. At the audience- 
hearing he professed to know nothing of the kind, not even that 
he had loaded or discharged a gun. At the police station two large 
W'ounds were found on the head of the accused; how they were pro- 
duced could not be ascertained. 
The prison-surgeon saw the accused for the first time on the 
morning of the 6th of January, between ten and eleven o’clock. 
He noticed particularly a wound three inches long on the head, 
which reached through the scalp to the skull. Mentally he appeared 
perfectly normal; neither at this time nor during his temporary 
imprisonment had the surgeon observed any traces of insanity or 
drunkenness. The policeman who arrested Sch. testified that the 
accused was very calm and collected in assuring them that he knew 
nothing of the crimes charged against him. He pretended not to 
understand the possibility of his having shot his brother-in-law, 
whom he declared to have seen but a few hours ago. Up to the 
time the surgeon of the prison saw him, S. had not slept at all. 
Several witnesses testified that they had considered Sch. intoxicated, 
but could not explain his unconscious ravings. The testimony of 
Fischer, the waiter, is also interesting; namely, that the accused 
was a kind-hearted but quick-tempered person. Only a few days 
ago he had begged his pardon for being angry. Lately he seemed 
to have had less control over his temper. On the night of the homi- 
cide, F. says that Sch.’s eyes stared wildty, that he foamed at the 
mouth, and looked frightful. The family phj'sician testified that 
Sch. went last year on a hunting excursion of several days’ duration, 
on which he endured great fatigue. On his return, he was attended 
by the physician, who found him with high fever, headache, and pain 
in his members. He ordered cold bandages and went away ; that 
same night he was sent for, because Sch. was so delirious that he 
could not be kept in bed. He found him in a dangerous delirium, 
and thought he discovered symptoms of cerebral inflammation. 
He gave orders that he should be watched by strong men, and the 
windows barricaded to prevent Sch. from jumping through them. 
Sch. remained in this state for three days, when milder delirium 
supervened. The course of the typhus, which now developed itself, 
lasted three weeks. Convalescence was slow ; so that it was eight 
or ten weeks before he went out again. 
To the expert-opinions at the trial, I add the following:— 
852 BOOK I.] 
SCHUMANN. MANIA TRANSITORIA ? 
853 
1. That the amount of liquor consumed was enough to produce, 
and did produce, intoxication. 
2. That the progress of the intoxication was not a common one. 
3. That there were no constitutional predisposing causes to 
render this progress anomalous. (The above alleged effects which 
followed moderate drinking were doubtless exaggerated. In the 
present case no evil effects resulted at all from moderate drinking, 
else Sch. would have felt them sooner. Sch. recovered completely 
from the typhus reported by his physician. The delirium that 
preceded the typhus indicates, at the most, that the activity of the 
brain had been enhanced by a change in the condition of the blood.) 
4. That an important circumstance to be considered was the rage 
into which the accused had fallen, and that in such a case it is as 
proper to speak of intoxication heightened by rage as of rage 
heightened by intoxication. It is clear that in intoxication he was 
subject to immoderate rage. 
5. That the alleged loss of memory, viewed in connection with 
his apparently coherent conduct and talk, must not be taken as a 
substantially subjective That, however, medical experi- 
ence proves the same to be possible in numerous cases which do 
not come in the sphere of criminal justice. 
6. That there were no circumstances in the case which indicated 
that the accused had falsified in alleging his failure to remember. 
On the contrary, there were many which support the truth of this. 
Herein I include the circumstance that the accused had become sud- 
denly unconscious; not so continuously, however, but that he could 
recall some particular events at the beginning of the affair. Then 
came a failure of memory; and it was not until he got on the street 
that he came to himself suddenly. He then felt his arm pinioned, 
and heard voices. Of the jeers and hootings of the crowd he has 
no recollection. In this account is contained truth. The truth of 
his statements is also supported by his appearance at the time of 
the act — his staring and protruding eyes, his foaming at the 
mouth, etc., the unconcern manifested by him at the sight of the 
corpse of a brother-in-law whom he had killed, and against whom 
he had no grudge, his cool and deliberate intention to reload the 
gun, etc. On the other hand, there are other circumstances that 
throw some doubt on his veracity. He had openly exaggerated 
the usual effect of alcohol upon him. He had lied in saying that 
he had often been quieted during these paroxysms, sometimes by 
force, and sometimes by kind words. But it must be borne in mind 
853 854 
MEDICO-JURIDICAL OPINIONS. 
[BOOK I. 
that the ravings of the insane in our asylums are often temporarily 
pacified, even in the middle of an attack. The mode of his recovery 
was remarkable. In ordinary cases the consequence of such an 
attack would be sleep; or, if the patient remained awake, bewilder- 
ment, and a gradual return to consciousness. In this case con- 
sciousness returned very suddenly. I can recall nothing analogous 
to this fact. On the whole, however, I must conclude that, in the 
case of the accused, there was a disturbance of mental activity, 
produced by alcoholic intoxication, which excluded the free choice 
of the will. My friend and colleague, Westphal, concurs in this. 
He says the circumstances furnish a possibility of unconsciousness, 
but there is no proof of it, since the failure to remember, which is 
sometimes a criterion, cannot in the present case be established. 
Dr. Westphal did not criticize the facts which render the state- 
ments made more or less probable. The jury found Sell, guilty, 
ignored the question of unconsciousness, but recognized the ex- 
tenuating circumstances; and, accordingly, Sell, was condemned to 
but three years’ imprisonment. 
IX. Business capacity, Intermission. 
(Liman’s Casper, No. 298.) 
§ 841. Mrs. Ackermann, on account of certain actions on her 
part indicating insanity, was sent to the asylum in November, 
1865. She had endangered her neighborhood, went about the house 
carelessly with fire, exposed her person at the window, etc. etc. 
Her physician testified that even while a child she had been 
insane, had resided in several insane hospitals—one month in 1835, 
three months in 1848, three months in 1854, and four months in 
1860. Since then her occasional residences at Klinmann’s establish- 
ment lasted until August, 1868. The paroxysms of the disease 
all manifested themselves in the same manner. She became sleep- 
less, excited, and talkative, ran about, and began her improper 
actions. On the first of May she was pronounced better, as the 
Protocol contained nothing for which she could be declared insane, 
and the fact of the frequent return of the disease was not deemed 
important enough to that opinion. 
Since that time the patient has seemed perfectly sane. The 
attest of Dr. E., as well as information given by the person with 
whom patient lived, have all been favorable in regard to her con- 
dition and behavior. In my own investigations I have been unable 
to trace any indications of psychic abnormity. 
854 BOOK I.J 
DR. S. INSANE DELUSIONS. 
855 
She is physically well, and robust for a person sixty-six years old. 
Her demeanor is perfectly in accordance with her education. She 
gives with great calmness all information concerning herself, and 
recognizes her misfortune, and says when it comes upon her it can 
be recognized by sleeplessness and restlessness. 
It is also important to notice that she is contented to remain 
where she is; that she gives as a reason to be relieved from 
guardianship, not to obtain the control of her property, but to 
save the costs of guardianship—saying she desired to deposit her 
money in the bank, and to give the charge of it to two relatives. 
She was well informed in regard to the amount of her income, and 
understood perfectly how to reckon the interest on her capital, etc. 
According to the above facts and statements, it cannot be said 
that she will never again be insane; but, as a wide interval has 
elapsed since her last attack, as she can observe what are to her 
the well-known symptoms of approaching psjrchic disturbances, as 
at present she is healthy in body and mind, and shows not the 
least impairment of intellect, there is no reason why she should 
not attend to her own affairs and have charge of her own person 
and liberty. I am, therefore, of the opinion that Mrs. Ackermann 
is, under the statute, in free use of her faculties. 
X. Homicidal attempt, Insane delusions. 
§ 842. The subject of the present case was Dr. S., a teacher of 
political economy. He had fired a loaded pistol at a stranger in 
open day on a public street. The ball missed the man, whereupon 
the accused bade him accompany him to court at once. He was 
arrested the same moment. 
The accused is 43 years old, middle sized, thin, with dark com- 
plexion, sharply-marked Jewish features, eyes deep-set, and with 
long black lashes. His physical condition is satisfactory. He said 
to me “ My mind is also perfectly sound.” According to his own 
statements, he has led a rather unusual mode of life. From being 
a rabbi he suddenly changed his religion to that of the Christian, 
studied law and political sciences, and occupied himself in pre- 
paring at Berlin young jurists for their highest examinations, having 
annually a class of seventy hearers, and an income of 5000 thalers. 
He also professed high literary attainments, and with ridiculous 
conceit boasted of his writings, the reputation they had won 
for him, and the expectations they had raised concerning him in 
(Liman’s Casper, No. 300.) 
855 § 842] 
MEDICO-JURIDICAL OPINIONS. 
[book I. 
the literary world. In the mean time he became dissatisfied with 
the sphere of his labors and went to Zurich, where he said he would 
become professor in the university. “ Of course,” he said, “ I 
could not be satisfied with five pupils, when I used to count at least 
seventy.” He was very ill at ease in Zurich. His former friends, 
the Jews, had constantly persecuted him since he left their religion; 
but, owing to his poor success in Zurich, had there left him unmo- 
lested. He then went to America, to practise law; but finding some 
difficulty in getting naturalized, he returned in a year to Europe, 
first going to Switzerland, afterwards to Berlin. Here he was 
received with consideration and respect at first. “ I went about with 
ministers and presidents, was received with distinction on account 
of my*writings,” etc. But they all, as he assumed, at once and for 
some unaccountable reason, turned from him ; and now began a 
series of imaginary persecutions about which he made the most 
absurd statements. In a conversation with me he said his tormen- 
tors had bored holes in the ceiling of his room and watched him, 
and disturbed him at his work, had stolen even his ideas, so as to 
render his own manuscripts worthless, his plagiarizing enemies 
having anticipated his best thoughts. During another conversation 
he denied the story of his being watched in the manner just related, 
but said that a throng of persons, some of them of rank, had hired 
carriages and passed on the opposite side of the street, and this was 
done by spies and persecutors. To protect himself from them he. 
wanted to go to the ministers and presidents,but concluded to protect 
himself. Therefore, he carried pistols when he went out, and fired 
at a young man, who, as he averred, came towards him with a sus- 
picious look, and was one of his thousand spies. He missed the 
man, he would say, smiling, and was now in prison as an accused, 
when he ought to be the accuser. He is not disquieted in the least 
over his fate, but is talkative and jovial. 
It is not difficult to prove that Dr. S.’s reason is impaired, that 
his excessive vanity is at the root of the trouble, and that he com- 
mitted the act in that state of mind. Dr. S. is undoubtedly a man 
of more than ordinary culture, as is evinced by the account of his 
career given above. But he has overestimated his own attainments 
and has too high an opinion of himself. He once associated with 
“ ministers and presidents,” and it is perfectly natural and common 
for such a person to be soon dissatisfied with any position. His 
lucrative profession as private tutor in Berlin was soon given up 
in the exceedingly doubtful prospect of gaining an appointment in 
856 BOOK I.] 
DR. S. INSANE DELUSIONS. 
857 
a university; which, in fact, he never obtained. He then went to 
America, etc. etc. These changes, so far from conducing to his 
material prosperity, tended, judging from his dirty and impover- 
ished condition, to gradually lower him in the social scale; and then 
he came to that point at which persons so commonly arrive, when 
they behold the world indifferent to their exaggerated claims, 
namely, he began to attribute this indifference to the envy and per- 
secution of enemies, while his vanity forbade his finding the true 
cause in himself. This delusion progressed until it become a fixed 
idea. While there is internal evidence of the truth of his state- 
ments in this respect, on the other hand, his mode of life and the 
circumstances attending the act preclude the possibility of decep- 
tion, for which not the slightest motive can be discovered. To be 
sure, his maintaining that his mind is sound does not prove the 
contrary, as is amply proved by experience; but deceivers almost 
always lack the courage to make such a statement. 
Accordingly, we hold that Dr. S.’s mind has been affected for 
some time, and that he is laboring under the fixed delusion that he 
is persecuted and watched by enemies and spies. His act bears the 
marks of this delusion. A jurist, would certainly be aware of the 
consequences of the act; and S. had looked them all in the face 
with the greatest coolness and unconcern; he had not lurked in the 
dark for one of his many spies, but in open day and in the most 
public manner had attacked a man perfectly unknown to himself, 
and with the atmost coolness had bidden him accompany him to a 
court of justice. 
What a preposterous step was this ! Could he, a jurist, have sup- 
posed the judge would acquit him, that an act of this kind could be 
justifiable? Could he really have thought to free himself from 
molestation by getting rid of one of his “thousand” persecutors? 
This act then is without any reasonable motive, and was executed 
from the standpoint of an impaired reason, in which the doer of the 
act could not realize the consequences of the same. The fact that 
Dr. S. had an avowed intention of committing the act (which was 
proved by his carrying a pistol with him) cannot affect the above 
conclusion, for it is a well-known thing that insane persons often 
lay plans, meditate upon them days beforehand, and display a great 
deal of cunning and skill in carrying them out. Dr. S. was sent 
to the insane hospital. 
857 § 843] 
MEDICO-JURIDICAL OPINIONS. 
[book i. 
XI. Larceny by an Educated Man, “Kleptomania?” 
(Liman’s Casper, Case No. 321.) 
§ 843. In the spring of the year 18— the student Z. met a man 
in the street who was wearing a coat that he, Z., had lost at a res- 
taurant. On inquiry, it was ascertained that the coat had been 
stolen by a medical student, Eduard by name, who had sold it to a 
Mr. Isaac with whom he had been carrying on such business for 
some time. The accused stated that he had taken the coat while 
intoxicated, and had sold it a few days after for four thalers, be- 
cause he could not recall the place from which he had taken it. Z., 
on the other hand, states that E., as soon as the matter was found 
out, had come to him and begged him to hush it up. There was other 
evidence more favorable to the accused. His brother, who is a 
pli3’sician, testified that E. for some time past had suffered from 
excessive absent-mindedness and a disordered state of his reason. 
Another physician, who had served in the army with E., testified to 
certain eccentric acts committed by E. while in the service; for ex- 
ample, wearing a civilian’s hat once while in uniform. This was 
confirmed by the surgeon of his regiment, Dr. R., who added that 
E. was often very absent-minded; he once replied to his commander, 
who inquired after the condition of a sick soldier, by quoting a 
passage from Schiller to him. 
The discharge, written by his commander, neutralizes somewhat 
this favorable evidence; certainly the officers over E. would have 
known of any striking peculiarities in his mental condition, or any 
eccentricities in his conduct. The above-named surgeon R., also 
deposed that he had spent that very evening in the coffee-house 
with the accused, that his speech had betrayed something wrong 
in his mind, and that he had left him there. So much the more 
strange it must seem, that Eduard on the following day did not 
mention some of the things that occurred that night, for instance 
the matter of the coat, etc.; but, without, it seems, saying a word to 
any one, he went and sold it. 
But we are told the parents of E. are well off, and the son has 
never wanted for anything. A waiter girl testified to the ridiculous 
actions of E., who once came into the ale-house with a boot on one 
foot and a slipper on the other (!). I found E., a robust young man 
of about 25 years of age, with no signs of impaired reason. He 
maintained to me that on the night of the act he had been in- 
toxicated, but was unable to explain the fact that his ignorance the 
858 BOOK I.] 
EDUARD. KLEPTOMANIA ? 
859 
next morning of his -whereabouts only the night before was con- 
trary to what is generally observed in drunkenness. 
Finally, we observe that several of the witnesses only testified that 
E. was absent-minded and was fond of being eccentric. Such idio- 
syncrasies are not uncommon, and form no ground from which to 
infer mental aberration. For a conscious distinction between good 
and evil is deeply rooted in the mind, and is not affected by any 
ordinary degrees of mental disturbance, and the case before us 
does not present even these. But that this conscious distinction 
was not impaired in the case of E. is proved by his conduct after 
the act. It is highly probable that the alleged immoderate in- 
toxication of the accused would have been observed by the other 
guests, W'hereas Z. sa}rs he was not aware of having seen the accused 
at all that night. We have already noticed his forgetting the 
place where this carousal took place. It does not savor of mental 
aberration and unconscious action, for the accused a few days after 
to dispose of the coat for a few thalers, and when discovered to 
beseech the owner not to expose him, and also to state in court 
that he had refunded the value of the coat. 
The apparant want of motive for the act is at least worthy of 
consideration, and it is certainly not beyond the province of psy- 
chologic opinion to notice this point. It wTas stated that the 
parents of E. were in good circumstances and that he never wanted 
for anything, and the sum to redeem the coat only amounted to four 
thalers. The pettiness of the motive cannot of itself determine the 
irresponsibleness of the doer, which truth certainly needs no further 
explication in the present case. It should also be remembered (1) 
that, when a young man lives apart from his relatives, in a great city, 
the question of pecuniary means is relative; and (2) that the state- 
ment of the clothes-dealer, that he often had had dealings with the 
accused, is not to be left out of account. I must therefore assume 
the responsibility of the accused. 
XII. Larceny by a Lady op Education, “Kleptomania?” 
(Liman’s Casper, No. 322.) 
§ 844. Malvina Torstrom is 21 jrears of age, the daughter of a 
widely-respected clergyman. From her childhood up, she had re- 
ceived the most careful religious training, and a thorough education. 
She speaks French and English fluently, and plays finely on the 
piano. Her moral character is of the purest and most estimable kind. 
A Danish physician, in whose house she had resided several months, 
859 860 
MEDICO-JURIDICAL OPINIONS. 
[BOOK I. 
affirmed that she was worthy of all praise for moral and intellectual 
qualities, but was vain and fond of flatter}". The Mayor of her native 
city also testified to her unexceptionable moral character and her 
fine accomplishments. In the family of Count v. W.she was respected 
and beloved by all. She had resided there a }rear and a half in the 
capacity of governess, during which she had given complete satis- 
faction until her dismissal in consequence of the above-named 
charges. Here she was paid at the rate of 140 thalers, besides re- 
ceiving many handsome presents from the countess, so that she 
never wanted for money. 
I will remark here that the accused, whose veracity I will notice 
below, assured me, in confirming the statements already given, that 
money had no worth for her, that she had actually squandered 
it on the poor. As witness she mentioned a servant Meyer, “ who 
knowrs that when the rest gave a few pence I gave a thaler.” While 
at home she had formed a strong attachment for a relative of hers, 
an artillery officer, to whom she was soon afterwards betrothed. 
While living at the house of the countess she was deprived of her 
lover by sudden death. This proved a hard blow to her; as her 
father writes, it was a “ heart fever” to her. She convinced me how 
keenly she deplored her loss by her grief and weeping. 
The acts which led to the present inquest were begun in August, 
1857. The countess was then staying with a relative at K., and 
one day one of the daughters lost from an unlocked drawer three 
thalers, then one thaler, and her sister also lost two thalers about 
the same time. In the beginning of September the famity of the 
count returned to their home in G., and soon several acts of lar- 
cenjr followed in quick succession, and under remarkable circum- 
stances. 
0 
According to the presentment one of the young ladies of the 
count’s family lost a portemonnaie on the 2d of September, con- 
taining two gold pieces. She missed it from a writing case that 
was locked, and on the same day Miss Thekla lost several gold 
pieces. On the 9th of October, Miss II. missed from the same 
writing desk a purse containing six thalers, and another purse with 
coppers. Miss T. again missed a purse containing four or five 
thalers about the same time. Frau v. T. lost a portemonnaie with 
ten thalers in it. On the 4th of November the countess discovered 
that she had lost from her writing desk eight gold pieces, and 
twenty-three silver thalers. These extraordinary acts became more 
inexplicable after it was discovered that some embroidery work was 
860 BOOK I.] 
MALVINA TORSTROM. KLEPTOMANIA ? 
861 
daubed with soap, undersleeves spattered with ink and oil, also a bust 
of Christ, belonging to Malvina, was soiled in the same manner. 
Suspicion was aroused against the servant Meyer. Malvina testified 
she knew not what had become of the money, and, when subse- 
quently she was found to have been the thief, the charge of perjury 
was also preferred against her. Up to this time the conduct of 
Malvina exhibited no alteration. But the subsequent fact that she 
talked excitedly about the guilty party, and, just before the dis- 
covery, said to Miss v. W., that the thief would finally set fire to the 
house, about which she appeared much disturbed; and the fact also 
that she had induced the youngest daughter to show her how the 
secretary of the countess was opened, together with the discovery 
of a half-burnt purse in the countess’s chamber, led to the suspicion 
that the governess was the guilty one. On the 11th of November, 
after at first denying the acts, she confessed herself guilty of them 
all. She was obliged to leave the place, in spite of her many en- 
treaties. “ Without showing any signs of shame or penitence” she 
went off, nodding to the count from the carriage, and on the very 
next day wrote him a letter praying to be reinstated ; a letter which 
struck him in the same wray as did “ her icy coldness, her unchanged 
expression, and her want of shame and penitence.” 
On the 11th of November she was arrested at the Convent R., 
whither she had gone, and brought to trial for the first time. She 
made a full confession of the thefts. She alleged that those which 
followed the first were committed by her to divert suspicion from 
a servant maid who could not have been guilty of the latter thefts; 
and other thefts she accounted for by saying they were meant to 
exculpate Meyer. Her false statements, she said, were meant to turn 
suspicion from herself. But she said in addition : “ I committed 
the first thefts just for the pleasure of the money. I was not in 
want; for all my wants I had sufficient money. For some time 
before the first act, I used to tremble at the sight of money. I strove 
with all my might against the desire to take it. It was only in K. 
and to begin with at Gf., that the inclination to take money could 
no longer be resisted. My conscience protested when Meyer was 
suspected, and I wished to avert all suspicion from him. But pride 
and shame prevented my doing this by an open confession of my own 
guilt.” The soiling of certain articles mentioned above, she said, 
was committed also to turn away suspicion from Meyer, and she 
had perjured herself because she was then in the power of covet- 
ousness and she thought thereby to stifle her conscience. 
861 862 
MEDICO-JURIDICAL OPINIONS. 
[BOOK I. 
Notwithstanding a peculiarly staring expression of the eyes, 
which the justice of the court had noted, there was nothing more 
reported, concerning her mental state in prison, than that in Jan- 
uary she had seemed greatly troubled for several days, and declared 
she had seen ghosts; her speech and looks also betokened mental 
disorders. The justice was convinced, after well observing the case, 
that she was not feigning, as her condition kept constantly changing. 
These changes had already appeared a few weeks after her arrest. 
Concerning her acts of theft, she told the prison inspector that she 
had been possessed by an irresistible inclination, that she trembled 
at the sound of money, to quiet herself she had to seize all ringing 
money she could find, and when she could not find money she col- 
lected iron nails and jingled them in a bag. She also told him 
about her magnetic powers (which is confirmed by a letter from her 
father); and to which I shall revert. Up to this time she had 
dressed herself properly, and occupied herself with reading, etc. 
In December, she fell ill with cough and spitting of blood. She 
was confined to her bed several days, and went about in a long 
white wrapper and with flowing hair; she carried her head bent 
backwards, and constantly complained of pain in it. In January, 
veritable signs of insanity made their appearance. She wept almost 
incessantly over supposed death of her mother; at night she imagined 
that ghosts were about her, and that she carried in herself a rapping 
spirit; that she could converse with ghosts and corpses, etc. The 
prison wratchman and his wife corroborated these statements, and 
related this striking incident, that one morning on entering M.’s 
apartment they found a heap of paper which she had just lighted 
into a blazing fire that had to be extinguished quickly. Dr. Gr. 
confirmed the great change in her general health, which he dates 
back to December 2t. He said she slept scarcely at all, stared con- 
tinually, ate but little, and did no work of any kind, which led 
him to the opinion that her mind was really affected, and that she 
was not feigning. He had her taken to the Royal Charitd Asylum 
on the 2tth of Januar}% After a careful and continued study of 
the case, Drs. Ideler and Meyer agreed that the patient was suffer- 
ing from pain in the head and face, which seemed of a nervous 
character, also a generally phthisical habit, the occasional super- 
vention of tightness in the throat and palpitation, anxiety and 
difficulty of breathing, occasional paroxysms of real delirium, 
during one of which she threw some of her effects into the stove, 
another time at night sprang out of her bed with the cry that she 
862 BOOK I.] 
MALVINA TORSTROM. KLEPTOMANIA ? 
863 
was in flames. Her nights were very frequently much disturbed ; 
there were hallucinations, ghost-seeing, etc. These phenomena 
decidedly confirmed the fact of her insanity. 
My own observations have fully confirmed the statements of 
these physicians. The lank form of the young woman, that pecu- 
liar blue of the so-called white of the eye, the fine and light-colored 
hair, the hectic flush of the cheek, the previously-mentioned attacks 
of anagoge were almost sure symptoms of lung consumption. This 
fact, however, has comparatively little weight in the case. Of far 
greater importance is another physical anomaly of the patient, I 
mean the high grade of nervous excitability. Everything stated by 
the patient was confirmed in the letters received from her father 
(which trace her condition from her childhood), and removes every 
reason for suspecting deception on her part, because not only does 
her whole condition seem the furthest removed from deception, but 
numerous facts can be cited in her case which never occur in 
deception, such as insensibility to cold, sleeplessness, frequent 
weeping, the changes in her state, etc. A very important proof of 
her extreme nervous sensibility is to be found in the fact that from 
her childhood she had displayed remarkable magnetic powers, so 
that she used to be called the magnetic girl. 
An old physician used to take advantage of this, to put her into 
a magnetic sleep, a practice which she described as exceedingly 
painful and injurious. This sensitiveness bespoke the existence of 
a very prominent grade of hysteria; and such symptoms as the 
following : sensation of strangling, oppressiveness, palpitation, etc., 
undoubtedly point to the presence of a disease which, more than 
any other, paves the way to a transition from the physical to a 
mental affection. I do not mean to affirm, that, because Miss M. is 
extremely hysterical, she is or must necessarily become insane: but 
that hysteria may, and frequently does, lead to insanity. The same 
may be said of other influences. How deeply the death of her lover 
agitated her, how keenly she felt his loss, has already been noticed. 
She assured us, and, as we believe, with truth, that it affected her 
health seriously; she slept but little; her digestion became slug- 
gish, so that from six to ten days there would be no movement of 
the bowels. The catamenia, which were never regular, did not ap- 
pear at all for the last four months of the year 1851 (about the 
time of the occurrence related above). Consequently we may affirm 
that the above-named acts were committed by a person of the most 
nervous excitability, one who was mentally very deeply agitated, 
863 864 
MEDICO-JURIDICAL OPINIONS. 
[book I. 
and whose physical system was diseased. These are influences, any 
one of which may lead to mental disorders. It will not be difficult, 
therefore, to show that such an effect was actually produced in the 
present case. 
It has been a matter of general surprise that a person like M. 
could be induced to commit such crimes, as she stood so com- 
pletely isolated in her mental life, and never manifested any pro- 
pensity of this kind. To what has been said of her peculiarities 
we will add the testimony of the Countess v. W.: “From the day 
she came into our family until she left, she had won the affection 
of all by her fidelity to duty, her affectionate treatment of the 
children, and by her modest and unassuming manners. She had 
most zealously fulfilled my wishes, she was gentle and forbearing, 
accomplished, industrious, persevering, and deeply religious.” 
Now, such a pei’son appropriates suddenly, and after that con- 
tinually, the property of her benefactor and friends. A person so 
“deeply religious” profanes the name of her God and Saviour by 
perjuring herself. In this is severed the psychologico-natural con- 
nection between the functions of feeling and thought. Here appears 
a chasm which can only be filled up by the assumption of influences 
destroying self-determination. This is confirmed by the considera- 
tion of another important point in questions of this kind—I mean 
the inducements to the act. 
That the lady in question was not driven to commit the acts 
through avarice, or through any pleasure or advantage to be derived 
from the stolen money, need no longer be argued after what has 
been remarked concerning her salary, her plentiful supply of money, 
and the little value placed on money by her. Nor will any one 
apply the parallel of really responsible thieves—who steal with- 
out being in need, but through sinful inclinations—to such a moral 
and religious person as M. She herself, however, has given a 
motive, causa facinoris, for the acts—namely, the pleasure she 
took in the white and brilliant pieces of silver coin, and in the ring 
of the same—a motive which she was unable to control. Even now, 
during her convalescence—which has been fully assured by her 
undergoing the test of having coin placed before her, without ex- 
citing any morbid desire to clutch the same, while formerly she 
had bitten her fingers to the quick in the struggle to resist the 
mania for money—even now, I say, she speaks with animation and 
glistening eye, and a joyful smile, interrupted with sobs, of the 
pleasure she took, when alone, in the jingling of the coins, or iron 
864 BOOK I.] 
MALVINA TORSTROM. KLEPTOMANIA ? 
865 
nails, or pieces of glass, which she had collected, and was herself 
puzzled to understand such a phenomenon. The motive for the 
soiling of certain articles, she also declared, now seemed equally 
inexplicable. To consider the soiling of her bust of Christ to arise 
from motives of cunning would be attributing to her a disposition 
the very opposite of hers. By the expression of wonder she meant 
doubtless to express her ignorance how she came to do such 
things, and whether shame or some other motive impelled her to 
perjure herself. 
So, also, in regard to the kindling the fire in the prison. She 
spoke of it as “ terrible; I could have lost my life so easily by it, 
for it was by a mere accident that the keepers discovered it.” For 
this act she could discover no other motive save an inexpressible 
anxiety and restlessness. To my reminding her that she had also 
once taken some paper money, she replied, quietly, that this was 
contained in the portemonnaie, together with the coins she desired 
to have; that in the countess’s secretary she had seen a red pocket- 
book filled with bank-notes, which did not tempt her in the least. 
Among the innumerable fancies and “crazinesses” of hysterical 
women such perversions are noticeable. Science gives no material 
by which they can be practically explained; but I am very far (con- 
tinues Casper) from resorting to the “ morbid impulses ” of a few 
theoretical authors—namely, Kleptomania, Pyromania, etc.—hypo- 
theses which elucidate nothing, and are mere verbiage, which are 
deceptive and practically pernicious, and which are to be repro- 
bated, as they mislead to a baseless exposition of particular cases 
which can only be reached by juridico-medical examination. The 
fact that persons mentally deranged have not the power to bridle 
their passions and impulses, and steal, commit arson, etc., does not 
justify such a hypothesis; and, not to be too diffuse, I must view 
it as settled, that Malvina was not led to the acts in question by a 
motive well known as immoral and illegal, and yet consistent with 
the actor’s character. 
As corroborating these inferences, we may regard the conduct of 
the defendant before and after the act. When the Countess of W. 
says that the great theft of one hundred thalers, in November, 
could have been committed by no one but Malvina, as the latter 
had the key of the closet, and alone knew that the money was in it, 
and had learned from the youngest daughter how the secretary was 
opened; when she, within eight weeks, in quick succession, executed 
ten thefts, which necessarily pointed to a house thief; when she 
yol. i.—55 
865 866 
MEDICO-JURIDICAL OPINIONS. 
[book I. 
burned a stolen purse in a stove that could only be heated from 
inside—it is plain how much suspicion she must have drawn on 
herself by these acts, which would necessarily lead to discovery. 
Certainly a person of her remarkable intellectual gifts, if respon- 
sible, could not have acted so foolishly. That she was irresponsible, 
her conduct after the act shows still more conclusively. 
Ignominiously expelled from the house in which for so long she 
had enjoyed respect and affection, she nods a farewell to its in- 
mates as if nothing had transpired, asks soon after, in a letter, to 
be restored to her place, exhibits subsequently, to the family, not 
only entire want of shame and penitence, but even an “icy cold- 
ness”—features entirely repugnant to her character, and which\ 
necessitate the assumption that she was not any longer her self, but 
another. Her initiatory momentary falsehood cannot be used to 
impugn this view. Daily experience shows that notorious lunatics 
(Wahnsinnige) have dark perceptions of right and wrong, and well 
understand how to clear themselves, in cases of necessity, by lies 
and other expedients. 
If further proof were necessary of Malvina’s irresponsibility, and, 
in addition, of her being at the time of the act in a state of in- 
cipient insanity, her subsequent history supplies such proof; for 
insanity, matured and fudy developed, exhibited itself in a few 
weeks after the last theft. In weighing this circumstance, the con- 
clusion is undoubtedly justified that this disease was only a con- 
tinuation and intensification of a prior malady, and that the latter 
had made her already “incompetent to judge of the consequences 
of her acts.” Under suitable medical treatment she is now, as has 
been remarked, already in the way of recovery. Her present de- 
meanor, as her former was described to be, in the evidence, is quiet, 
composed, graceful—even elegant—her dress and arrangement of 
her hair neat. Her address corresponds to her high culture. Her 
bodily condition is much improved. She deplores her errors, and 
desires nothing more ardently than to obtain the humblest post as 
teacher, so as again to be restored to subordinate usefulness. 
Her hallucinations have not entirely left her, and only a few days 
since she saw at night an acquaintance, Frau v. S., sitting on her bed. 
She is convalescent, but not yet restored. By the usual progress, 
however, a full recovery is to be expected. Her physical and mental 
constitution and characteristics will even then naturally remain 
unchanged, and there could be no medical assurances that future 
nervous shocks or functional disturbances might not lead to a new 
866 BOOK I.] 
MALVINA TORSTROM. KLEPTOMANIA? 
[§ 844 
outbreak of mental disorder. I answer to the proposed questions 
as follows:— 
1. That Malvina Torstrom is still mentally unsound. 
2. That, at the time of the act of which she is accused, she was 
in an irresponsible condition. 
3. That, if a recovery ensues, we cannot assume that, by a con- 
tinuance of the examination, she would not again become mentally 
unsound. 
867 INDEX TO YOL. I. 
[The figures refer to sections.] 
A. 
AIDOIOMANIA, 617. 
ALCOHOLISM, 639. 
AMENTIA, 698. 
ANGER, 
distinguishable from insanity, 418. 
APHASIA, 324. 
AUTOPSIES OF INSANE, 321. 
B. 
BLINDNESS, 95, 469. 
BOOKS ON INSANITY, 
authority of, 303. 
BRAIN, 
injuries to, 348. 
BURDEN OF PROOF IN INSANITY, 246. 
(See Presumptions.) 
C. 
CAPACITY TO PLEAD, 200a. 
COMMISSIONS OF LUNACY, 99. 
CONFESSIONS, 
insane, 200a, 788-805. 
CONTRACTS, 
capacity to execute, 1-79. 
imbecility, 1. 
contracts generally, 2. 
contracts of marriage, 16. 
wills, 19. 
delusions, 34. 
lucid intervals, 61. 
intoxication, 65. 
undue influence and fraud, 76. 
CONVERSATION, 
as test of insanity, 378. 870 
INDEX. 
CRIME, 
psychical indications of— 
prior to crime, 773. 
preparations, 773. 
intimations, 775. 
overacting, 781. 
at crime. 
incoherence, 782. 
self-overreaching, 786. 
after crime. 
convulsive confession, 788. 
nervous tremor, 805. 
morbid propensity to recur to scene and topic of guilt, 812. 
permanent mental wretchedness, 816. 
animosity between confederates, 823. 
responsibility for. (See Responsibility.) 
capacity for, 116-201. 
CRIMINAL LUNATICS, 
treatment of, 754. 
CUNNING, 
consistent with insanity, 381-385. 
D. 
DEAFNESS, 95, 461. 
DELIRIUM, 702. 
general delirium, 702. 
partial delirium, 706. 
mania or amentia occulta, 706. 
mania transitoria, 710. 
DELIRIUM TREMENS, 
as affecting responsibility, 201. 
as constituting a monomania, 639. 
DELUSIONS, 
as affecting wills, etc., 34. 
crimes, 125. 
psychological character of, 723. 
DEMENTIA, 698. 
DEMONIACAL POSSESSION, 644. 
DEPORTMENT, 
as test of insanity, 378. 
DEPRESSION, 502. 
DERANGEMENT OF SENSES, 461. 
deaf and dumb, 461. 
psychologically, 461. 
legally, 464. 
blind, 469. 
epileptics, 470. INDEX. 
871 
DETECTION OF INSANITY, 305. 
DIPSOMANIA, 639. 
DRUNKENNESS.’ (See Intoxication.) 
DUMBNESS, 95, 461. 
E. 
EPILEPSY, 470. 
EROTOMANIA, 617. 
ESCAPE, 
neglect to, presumption, 406. 
EXPERTS, 190, 275-300. (See Witnesses.) 
F. 
FANATICO-MANIA, 614. 
supernatural or pseudo-natural demoniacal possession. 
cl priori improbability of such possession, 644. 
solubility of the instances of such possession by natural tests, 
disease, 646. 
morbid imitative sympathy, 647. 
legerdemain and fraud, 651. 
mistake of senses, 654. 
guesswork, 656. 
natural phenomena at present inexplicable, 659. 
historical evidence of such possession, 660. 
religious insanity. 
Christianity, taken in its practical sense, has no tendency to pro- 
duce insanity, 662. 
what is called religious insanity is produced 
by a departure from practical Christianity, 669. 
reliance on frames and emotions, 669. 
appeal to unscriptural supernaturalism, 670. 
appeal to the selfish element, 675. 
by constitutional idiosyncrasies, 677. 
fanatico-mania as a defence, 678. 
FEAR, 
not insanity, 432. 
FEIGNED INSANITY, 443. (See Simulated insanity.) 
FORGETFULNESS, 
as a test of insanity, 410. 
FRAUD, 
as affecting contracts and wills, 76. 
G. 
GRIEF, 
not insanity, 426. 
GUARDIANS, 
in lunacy, 99. 872 
INDEX. 
H. 
HALLUCINATIONS. (See Delusions.) 
HEREDITARY TENDENCIES, 
influence of, 363. 
HISTORY, 
as test of insanity, 388. 
HOME-SICKNESS, 429. 
HOMICIDAL MANIA, 578. 
HYPOCHONDRIA, 508. 
HYSTERIA, 517. 
I. 
IDIOCY, 
as to contracts, 2. 
marriage, 16. 
wills, 19. 
psychologically, 682. 
IMBECILITY, 
as to contracts, 2, 76. 
marriage, 16. 
wills, 19, 76. 
psychological view of, 691. 
IMPULSE, 
irresistible, 146, 567. 
INCENDIARY PROPENSITY, 604. 
INQUISITION OF LUNACY, 99. 
INSANE CRIMINALS, 
treatment of, 
retribution, 754. 
prevention, 763. 
example, 765. 
reform, 766. 
why our present system should be remodelled, 770. 
INS AN I A OCCULTA, 706. 
INS A NIA TEA NS IT OK I A, 710. 
INSURANCE, LIFE, 
when avoided by insanity, 228. 
INTERMEDIATE THEORY, 329. 
INTOXICATION, 
as affecting capacity to contract, 65. 
insanity produced by delirium tremens affects responsibility in the same 
way as insanity produced by any other cause, 201. 
insanity immediately produced by intoxication does not destroy respon- 
sibility where the patient, when sane and responsible, made himself 
voluntarily intoxicated, 207. INDEX. 
873 
INTOXICATION, continued. 
while intoxication is, per se, no defence to the fact of guilt, yet when 
the question of intent or premeditation is concerned, it may be proved 
for the purpose of determining the precise degree, 214. 
as affecting responsibility, 639. 
IRRESISTIBLE IMPULSE, 146, 567. 
K. 
KLEPTOMANIA, 590. 
L. 
LETTERS, 
as test of insanity, 378. 
LIFE INSURANCE, 
as affected by insanity, 228. 
LUCID INTERVALS, 
in relation to capacity to contract, 61. 
presumptions as to, 246, 257. 
psychological view of, 744. 
LUNACY, 
commission of, 99. 
LUNATICS, CRIMINAL, 
treatment of, 754r-770. 
LYING PROPENSITY, 626. 
M. 
MANIA A POTU, 
as affecting responsibility, 201. 
as constituting a monomania, 639. 
MANIA OCCULTA, 706. 
MANIA TRANSITORIA, 162, 700. 
MARRIAGE, 
capacity to execute, 16, 76. 
MATERIALISTIC 
theory of insanity, 320. 
MELANCHOLIA, 523. 
MIND, 
not divisible, 533. 
MONOMANIAS, 
as affecting wills, 34. 
psychologically, 567, 670. (See Moral insanity.) 
MORAL INSANITY, 
general, 531. 
as to psychological possibility of separate insanity of moral func- 
tion, 533. 874 
INDEX. 
MORAL INSANITY, continued. 
as to whether such separate insanity exists, 541. 
authorities in the affirmative, 541. 
present weight of authority is negative, 552. 
not recognized by the courts, 163. 
MORAL MONOMANIAS, 
special, 567. 
at present repudiated, 567. 
absurdity of classification, 572. 
homicidal mania, 578. 
kleptomania (morbid propensity to steal), 590. 
pyromania (morbid incendiary propensity), 604. 
erotomania (morbid sexual propensity), 617. 
pseudomania (morbid lying propensity), 626. 
oikeiomania (morbid state of domestic affections), 630. 
suicidal mania, 636. 
dipsomania (morbid passion for drink), 639. 
fanatico-mania, 614. 
politico-mania, 679. 
MOTIVE, 
as test of insanity, 399. 
N. 
NEGLECT TO ESCAPE, 
presumption from, 406. 
NOSTALGIA, 429. 
O. 
OBLIVION, 
as a test of insanity, 410. 
OCCULT MANIA, 706. 
OIKEIOMANIA, 630. 
OINOMANIA, 639. 
OLD AGE, 
as affecting capacity, 83, 691, 698. 
OPINIONS, 
medico-juridical. 
homicidal attempt, fanatico-mania, 833. 
fraud, insane delusions, simulation, 834. 
larceny, simulated imbecility, 835. 
larceny, simulated mania, tests, 836. 
attempted infanticide, hystero-epilepsy, melancholia, 837, 
larceny, initial stage of paralysis, 838. 
killing of child, melancholia, 839. 
homicide, mania transitoria ? intoxication, 840. 
business capacity, intermission, 841. INDEX. 
875 
OPINIONS, continued. 
homicidal attempt, insane delusion, 842. 
kleptomania ? by an educated man, 843. 
kleptomania ? by a cultivated woman, 844. 
P. 
PASSIONS, 
as distinguishable from insanity, 
remorse, 413. 
anger, 418. 
shame, 423. 
grief, 426. 
homesickness, 429. 
fear, 432. 
PHRENOLOGY, 
psychological value of, 320. 
PHYSICAL 
tests of insanity, 345. 
PHYSIOGNOMY 
as a test of insanity, 345. 
PLEAD, 
capacity to, 200a. 
POLITICO-MANIA, 679. 
PRESUMPTIONS, 
from character of act, 83, 389, 773, 782. 
from old age, 87. 
from party being deaf, dumb, or blind, 95. 
as to sanity generally, 246-269. 
as to lucid interval, 61, 744. 
from deafness, dumbness, or blindness, 95, 461. 
from hereditary tendency, 362. 
burden of proof, 246. 
PROSTRATION, 682. 
PSEUDONOMANIA, 626. 
PSYCHICAL 
theory of insanity, 320. 
evidences of crime, 773-823. 
PULSE, 
as test of sanity, 352. 
PYROMANIA, 604. 
R. 
RAGE, 
distinguishable from insanity, 418. 
RELIGIOUS INSANITY. (See Fanatico-mania.) 876 
INDEX. 
REMORSE, 
distinguishable from insanity, 412, 788. 
RESPONSIBILITY FOR CRIME, 
where the defendant is incapable of distinguishing between right and 
wrong as to the particular act, 116. 
where the defendant is acting under an insane delusion as to circum- 
stances, which, if true, would relieve the act from responsibility, or 
where his reasoning powers are so depraved as to make the commis- 
sion of the particular act the natural consequence of the delusion, 125. 
where the defendant, being insane, is forced by an irresistible impulse 
to do the particular act, 146. 
moral insanity (i. e. a supposed insanity of the moral system claimed to 
coexist with mental sanity) is no defence, 163. 
while experts may be called to testify as to states of mind and con- 
ditions of health, it is for the court to declare whether such states and 
conditions constitute irresponsibility, 190. 
predisposition to insanity as lowering grade of guilt, 200. 
capacity of insane defendants to plead, 200<x. 
how far intoxication affects responsibility, 201. 
moral insanity viewed psychologically, 531. 
moral monomanias, 567. 
homicidal mania, 578. 
kleptomania, 590. 
pyromania, 604. 
erotomania, 
pseudonomania, 626. 
oikeiomania, 630. 
suicidal mania, 636. 
dipsomania, 639. 
fanatico-mania, 614. 
RIGHT AND WRONG TEST, 116. 
S. 
SCIENTIFIC TREATISES, 
authority of, 303. 
SECRETIONS, 
as test of insanity, 352. 
SEXUAL MORBID INSTINCT, 617. 
SHAME, 
distinguishable from insanity, 423. 
SIMULATED INSANITY, 
reasons for suspecting, 445. 
forms generally simulated, 446. 
not proved by sanity at trial, 452. 
tests, 345, 454. 877 
INDEX. 
SIMULATED INSANITY, continued. 
physical conditions, 347. 
injuries to brain, 348. 
anomalies of sensibility, of pulse, of secretions, of sense, 352. 
hereditary tendency, 362. 
psychologically, 362. 
legally, 373. 
conversation and deportment, 378. 
writings, 386. 
prior history, 388. 
nature of act, 389. 
its insensibility, 389. 
its incongruity with antecedents, 390. 
its motivelessness, 399. 
motives rarely simple, 401. 
passion as a motive, 403. 
lawlessness as a motive, 404. 
neglect to escape, 406. 
forgetfulness, 410. 
cases of simulation, 834-843. 
SLEEP, 
its relations to insanity, 482. 
SLEEP-DRUNKENNESS, 484. 
SOMATIC THEORY 
of insanity, 320. 
SOMNAMBULISM, 492. 
SOMNOLENTIA, 484. 
STEALING MANIA, 590. 
SUICIDAL MANIA, 636. 
T. 
TEMPERAMENT, 
affections of. 
depression, 502. 
hypochondria, 508. 
hysteria, 517. 
melancholia, 523. 
THEORIES 
of mental unsoundness, 
psychical theory, 319. 
somatic theory, 320. 
intermediate theory, 329. 
its basis, 329. 
it effect on responsibility, 336. 
TRANSITORY MANIA, 162, 710. 
TREATISES, SCIENTIFIC, 
when evidence, 303. 878 
INDEX. 
U. 
UNDUE INFLUENCE, 
as affecting contracts and wills, 76. 
W. 
WILLS, 
capacity for, as affected by insanity, 19-83. 
WITNESSES, 
non-experts, 272. 
experts, 275. 
who they are, and what are their qualifications, 275. 
questions to be put to them, 283. 
when there was personal examination, 283. 
as to facts proved on trial, 287 
on a hypothetical case, 288. 
on a conclusion of law, 292. 
weight to be attached to their testimony, 190, 293. 
duties of, 297. 
not counsel, but semi-judicial assessors, 298. 
testimony not to be speculative, 299. 
all materials of diagnosis should be secured, 300. 
when disqualified by insanity, 242. 
WRITINGS, 
as evidence of sanity, 386. 
END OF YOL. I.