HISTORY „\N[> IJI11IA )S( )IM I A' 
OF 
MEDICAL JURISPRUDENCE. 
BY JOHN ORDRONAUX, 
PROFESSOR OF MEDICAL JURISPRUDENCE IN COLUMBIA COLLEGE, 
NEW YORK. HISTORY AND PHILOSOPHY OF 
MEDICAL JURISPRUDENCE * 
BY JOHN ORDRONAUX, 
PROFESSOR OF MEDICAL JURISPRUDENCE IN COLUMBIA COLLEGE, 
NEW YORK. 
In approaching the philosophy of any science, the 
mind is at first bewildered by the multitudinous re- 
lations under which it presents itself. Aside from 
abstract principles, which are few and easily recognized, 
the variety of their application, the subtle forms under 
which they exhibit themselves, and the gradual blend- 
ing of their operations into each other, render their 
practical investigation always a difficult subject to mas- 
ter. Hence it is that we are driven to the common 
ground of accepted definition for the ttov otu whence to 
originate all study and successful investigation. This 
is particularly the case in the physical sciences, where a 
natural correlation knits them together in a chain of 
mutual dependencies. But when, overpowering all 
these correlations, the law undertakes to apply her 
canons to the admeasurement of civil wrongs growing 
out of the operation of physical agencies, then it is that 
the subject, by additional complication, becomes difficult 
of solution. We need at such a time a knowledge not 
simply of positive, instituted law, but of natural law; 
a knowledge not of the language of human enactments 
alone, but of the language of physical agents as they 
express themselves through pathological signs. With- 
out descending into metaphysical speculations, or losing 
*From the Am. Journal of Insanity for October, 1868. 2 
ourselves in the mazes of dogmatic conjecture, it is still 
necessary that we should begin our inquiry with first 
principles—the germinal points—of every science. Hav- 
ing done this we can afterwards trace with ease and 
increasing success, the relations which flow out of them; 
for no science can be difficult to him who has thoroughly 
mastered its elements. 
It is not proposed, however, to enter into any large or 
critical discussion of the entire field before us, since 
that would indeed necessitate a volume of indefinite 
proportions. Medical jurisprudence as a science, is too 
comprehensive a department of philosophy to be dis- 
posed of in a magazine article. Its boundary lines 
exceed those even of natural history, since, as a syncre- 
tism between natural and human laws, it covers the entire 
field of both territories. Those who look at it only as 
the caudal fin to chairs of obstetrics or chemistry in 
medical colleges, know little of it besides its name. To 
them it is simply a myth, imported into the curriculum 
of medical study by way of ornament alone. Yet if 
we may trust one whose life was chiefly spent in its cul- 
tivation, and who may be supposed to have known all 
that proficiency in it cost him, as it will any one, desiring 
to follow its myriad avenues of necessitated investiga- 
tion,—if we may quote the language of the distinguished 
Fodere, we shall need advance no better argument, nor 
could we adduce a stronger one, in behalf of its ma- 
jestic proportions. Let us listen to the great master, as 
he utters in liis introduction, these striking words: 
“ Si V on porte an reste a ce sujet toute V attention pul il 
merite, Von ne pourra pul etre effraye de V immensite des 
connaissances qV exige V exercise legitime de la Medecine 
Legale /”—and if we pause but to reflect upon the fact 
that this neglected science, only tolerated by sufferance, 
and hardly adopted into the sisterhood of studies in 
medical schools, nor often granted a separate altar and 3 
an ordained priesthood—that this humble department 
includes anatomy, physiology, pathology, therapeutics, 
surgery, chemistry, botany and hygiene as its medical 
phasis; while with a still wider range, and regarding 
man as living a life of relation and responsibility towards 
his fellow-beings in society, it enters into the vast cham- 
bers of law, there to consider and weigh the testamentary 
capacity of parties; their mental ability to form con- 
tracts of whatever name or nature; the rules regulating 
survivorship and life assurance; the physical compe- 
tency underlying the domestic relations, and determining 
not only the rights of the actually living, but of their 
posterity; and lastly, criminal responsibility as affected 
by insanity or intoxication;—if we go no further than 
these facts, we shall be convinced, at the threshold of 
any inquiry into its philosophy, that no one can over- 
estimate or over-state the comprehensiveness of this 
field of multifarious investigation. 
But law and medicine, although uniting in the pro- 
duction of this third science, cannot be said to hold a 
divided empire over its practice; for law alone is, and 
must ever be, the supreme arbiter of human actions in 
society, nor can she surrender her authority over the 
temporal accountability of mankind without at the 
same time surrendering her life and her essential pre- 
rogatives. The application of medical jurisprudence to 
the admeasurement of physical facts affecting the civil 
or criminal responsibility of parties, amounts practically 
only to this—that medicine furnishes the lights of her 
experience, and law applies them according to the es- 
tablished rules of her tribunals, and as modified by the 
equities of each particular case. Thus the aid of medi- 
cine is often invoked; she is even at times intrusted 
with the scales; but law always retains the sword, 
always retains the right of reviewing the judgement 
and prescribing the penalty. And this is but just, 4 
since it leaves either science to perform its destined part 
in the economy of human government: law, as the 
heavenly appointed governor of man in society; defining 
what is right and prohibiting what is wrong; protecting 
the weak and compelling the powerful; scrutinizing the 
state of the mind, together with the intention, as the 
foundation of all human responsibility; deliberate and 
merciful in her judgments, swift and terrible in her 
punishment: and, on the other hand, medicine, walking- 
like a Good Samaritan with the oil and balsam of phi- 
lanthropy in her hand; guiding hood-winked justice 
whenever she explores the dark valleys of bodily or 
mental infirmity, and striving to mitigate the too rigor- 
ous application of legal canons, whenever weakness is 
mistaken for error, and disease is mistaken for crime. 
HISTORY OF MEDICAL JURISPRUDENCE. 
Before proceeding to investigate tlie philosophy of a 
science of such vast proportions, it may not be amiss to 
indulge in a brief retrospect of its history. That any- 
thing like a perfected system of forensic medicine, 
whose principles are founded upon the laws of our 
physical being, should have been completely formed be- 
fore those fundamental laws were themselves discovered, 
is not to be believed. To speak of it, therefore, as an 
established science before the labors of Harvey, Vesa- 
lius, or Fallopius had broken the seals of rational anat- 
omy, is to confound the narrow results of ancient 
observation with the grander explorations of modern 
times. The human mind, powerful and penetrating as 
it may be in research; reflective and logical as it may 
show itself in tracing analogies and elucidating princi- 
ples, cannot erect systems by its solitary fiat. These 
are the offspring only of centuries, the accumulated 
labor of generations, each receiving, transporting, and 
in its turn transmitting the torch of learning to its sue* cessor, and thus, little by little, building islands and 
continents in the great sea of human thought. 
Nevertheless, one very important branch of medical 
jurisprudence was unquestionably recognized and pro- 
vided for in the legislation of antiquity; and this 
branch which was founded in that first of governing 
principles, the law of self-preservation, formed a true 
system of medical police even among the Israelites and 
the Hindoos. The frequent lustrations and isolations 
of the person, enjoined as part of the ceremonial law 
among those nations, converted a physiological safe- 
guard against contagion into an act of worship, in this 
wise insuring its daily practice by all classes in the com- 
munity. And so urgent was the necessity of personal 
purification deemed among a population proverbially 
unclean, and in a climate disposing to pestilence, that 
the Mohammedan was ordered to cleanse himself with 
sand wherever water was not to be had. From this 
incorporation of sanitary observances into the religion 
of the country, it followed that priests became the ear- 
liest custodians of public health, and it may be truly 
said, the earliest medical jurists on record. Their edu- 
cation, which was of the most extensive character pos- 
sible at that day, included a thorough knowledge of 
medicine as then understood; and they were well qual- 
ified, therefore, to act as a sanitary police. They defined 
the civil status of the citizen by first defining his relig- 
ious and ceremonial condition. If pure in body—then 
might he go at large into the streets of the market 
places—the temple or the synagogue; and contrariwise 
if impure, he was at once put under civil disability and 
isolation. Even at this day, in India, caste, rank, is 
forfeited by touching articles forbidden in the religious 
code, and the priest among the Hindoos is still in many 
senses the acknowledged lawgiver, as in ages past. 
These were certainly wise enactments for those days 6 
of little knowledge, and well suited to tliat population 
among whom the source of filth has been at all times 
inbred and irrevocable. They show too that hygiene is 
the earliest study, as it is the earliest necessity of man- 
kind in society; and in appointing the priesthood to 
the guardianship of public health, they gave them con- 
trol over one of the chief sources of public misery— 
destitution, vice and crime. When we peruse the laws 
of those nations living, as it were, in the gray dawn of 
time, and without the elevating advantages of inter- 
communication with other peoples: working out, with 
no inherited models of legislation, and no established 
codes of scientific truth, the great problem of national 
prosperity—when we see them promulgating laws whose 
wisdom seems far in advance of the civilization which 
gave them birth—laws whose outlines we cannot ex- 
pand, all our multiform and wonderful discoveries only 
serving to contribute details and formulae for their 
better and more economic administration—we cannot 
doubt that the scholarship of that day, as represented 
in its legislation, was something more than history has 
found materials with which to describe it. If the 
Israelites or the Egyptians could have laws enforced 
among them regulating marriage and the relations of 
the sexes—distinguishing between mortal and danger- 
ous wounds in order to affix penalties—and prescribing 
modes of embalming and interring the dead—thus in- 
volving some of the most important questions in the 
sanitary police of communities, we must surely believe 
that they fully comprehended the necessities of such 
regulations to be founded in the laws of our physical 
being—in a word, that their legislators must have been 
physicians. And, we need not ask, after reading the 
ordinances of Lycurgus, or the physical rubrics laid down 
by Pythagoras and Plato, whether they too had studied 
the laws of our bodily life. 7 
There is no evidence, however, that any union of the 
professions of law and medicine in any one science and 
as a branch of jurisprudence was contemplated by the 
more cultivated Greeks. Except in questions of medical 
police, medical men were not often consulted by the 
tribunals of Greece. In that country the chief concern 
of legislation was to secure a robust people, capable of 
bearing arms, and in their prevalent ideas as to the best 
mode of perfecting the human species, they were led to 
the barbarous and unscientific practice of destroying 
delicate, and rearing only strong infants. To perfect 
this dogma of their political economy, and to provide 
for the health of cities and camps by assuaging the 
virulence of epidemic diseases, formed about the whole 
scope of Greek state medicine. For, aside from the 
admirable treatise on Air, Water and Locality, left us 
by the father of medicine—a treatise which still in- 
fluences the civilized world—no other contribution to 
the literature of that subject has come down to us. 
Whatever may have been the limited achievements of 
those days in forensic medicine, the opinions of Hippoc- 
rates and Aristotle upon certain physiological problems 
relating to the perpetuation of the species, have always 
carried with them an authoritative influence, not only 
in the schools, but with legislators, which succeeding 
ages have hardly extirpated. Many of the principles 
of the Canon Law, as formerly recognized in the Ec- 
clesiastical Courts of Europe, were undoubtedly founded 
upon the crude speculations of these authors, and in par- 
ticular of the Stagirite, whose Organon was the Bible 
of the schools of philosophy down to the time of Bacon. 
But when we pass to Borne, we meet at once the 
spirit of her truest grandeur in the superior character of 
her legislation. As early as the reign of good king 
Numa, a law was enacted which was intended to pro- 8 
tect the life of the heir, by requiring medical assistance 
in critical cases.* And even before that auspicious day 
which saw the mighty lawyers of Justinian remodeling 
the jurisprudence of their country, the law of the Twelve 
Tables had made provisions of the wisest and most 
humane character in relation to the civil rights of pos- 
terity. The Romans who had imported their laws, as 
they had their arts from Greece, were almost exclusively 
guided in their legislation by the dictum of ancient 
philosophers; hence they very naturally incorporated 
into their jurisprudence the best models of morality and 
polity which their age afforded. Masters of the world, 
they readily subsidized its treasures, whether of art or 
philosophy, to the aggrandizement of their own glory, 
and the perpetuation of their own empire. Yet such 
was the petrified adherence of the age to the canons of 
the old masters; so much was it the rule to swear by 
established and mouldy authority—a custom whose 
practice even in the middle ages and among the school- 
men silenced every objection with the simple sic magister 
dixit—that in the Pandects of Justinian, where various 
titlesf are created referring to crimes, physical de- 
formities and questions of legitimacy, the courts were 
instructed not to be governed by the evidence of living 
physicians, (who might be most competent to explain 
particular points then at issue,) but to form their 
opinions exclusively propter auctoritatem doctissimi 
Hippocratis. Yet the creation of an archiater,% or state 
* This was the Lex Regia “ De Inferendo Mortuo,” forbidding 
the burial of a pregnant woman until the foetus should first have 
been extracted.—Digest: Lib. II., Tit. 8. 
f These titles are uDe Statu Ilominum, De Sicariis et Veneficis; 
De Inspiciendo Ventre, &e.; De Hermaphroditism De Impotentia, 
&c., &c. Instit.: Lib. 4, Tit. 18. 
X Code Theodos.: 12, 13. 9 
physician, whose public functions corresponded to those 
of a modern health officer, who was himself court phy- 
sician, and the acknowledged head of the medical pro- 
fession, must have imparted to his opinions great weight 
with the judges, notwithstanding the institutional rev- 
erence for Hippocrates. And possibly his influence 
was not unwisely exercised over some of his royal 
patients, since we find an occasional relaxation in the 
rigorous construction of statutes, sanctioned by imperial 
edicts. If we may credit Tacitus, the bodies of German- 
icus and Agricola were medically examined, and in the 
former slight traces of poison were noticed; but whether 
the autopsy was undertaken at the command of some 
tribunal and as forming a part of a judicial inquisition, 
does not appear.* 
In the confusion which followed the irruption of the 
barbarians and the downfall of the Koman Empire, we 
lose sight for a while of the workings of municipal 
regulations. The larger operations of war, conquest, and 
the foundation of new governments, overshadow all other 
considerations, and it is not until order once more 
reigns, and the thoughts of men can be concentrated 
upon the necessities of a system of jurisprudence, that 
we may expect to find the tamer studies of philosophy 
and legislation fixing their attention. In the whirlwind 
of savage customs which ruled society throughout west- 
ern Europe during the dark ages, legal medicine could 
hope for no positive recognition. Its very sources were 
ignored, and its principles derided as a sacrilegious at- 
tempt to invade the secret haunts of nature; and in its 
stead ordeals by fire, water, or the judicial combat were 
introduced, as so many direct interrogations of the Deity. 
But the law's of a country, like its language, are not 
easily extirpated even by conquest; and it seldom hap- 
*Tac. Annal. Lib. 2, 13, and Suetonius in vita Caliguloe, § 1. 10 
pens tliat tlie civil legislation of a conqueror escapes the 
infection of local customs and language. For it is always 
easier to adopt a system of laws than to frame one, and 
the proud jurisprudence of Rome was of too practical 
as well as philosophical a character to permit of its easy 
overthrow by barbarian codes. Hence, the wiser con- 
querors were not slow in availing themselves of this 
fountain of justice. They drew largely from it, nor did 
they ever cease paying that homage to the laws of Rome 
which they had so emphatically denied to her Empire. 
It would not be difficult to show that the Roman law 
had authorized the calling and consultation of physicians 
before courts in difficult cases, and finding the same 
rule prevailing in the jurisprudence of the Ostrogoths, 
in Italy,* and of Charlemagne,f in France, it is easy to 
conjecture the source whence the rule was derived. 
This brief sketch may be said to include the whole 
aspect of legal medicine as presented to us in the laws 
and legislation of antiquity. That it made but little 
progress—that it should have been extremely desultory 
in its application, and should have continued a weak 
and inferior adjuvant to courts—will be readily under- 
stood when we reflect that most of the physical sciences 
upon which rests its foundations, and whence its true 
life is drawn, had scarcely risen upon the horizon of 
human thought. No Harvey had yet shown that blood 
circulated through the arteries, instead of air. No 
Vesalius had yet established a rational system of anat- 
omy based upon positive demonstration. No Boerliaave 
or Van Helmont had yet explored the mine of chemistry, 
* Tlieodoric, their King, delegated the care of justice to consular s, 
correctors, and presidents, who, says Gibbon, “ governed the fifteen 
regions of Italy according to the principles, and even the forms of 
Roman jurisprudence.” Roman Empire, vol. 4, p. 21. 
•[Capitularies, 116, lib. 7. 11 
through which Priestly and Lavoisier were destined to 
descend into the very penetralia of matter. Man’s 
nature was still a sealed book, before which flcimen and 
augur and oracle stood dumb, and over which law herself 
ministered with scarcely any knowledge of its contents. 
Whatever, therefore, may have been her errors, they 
were, at most, only the reflected errors of her day and 
generation; nor should those things be imputed to her as 
crimes which were done under sanction of the highest 
authority she could summon, and the fullest measure of 
light she could obtain. 
It is generally admitted that the application of medical 
knowledge to jurisprudence, and the practical recog- 
nition of a science of forensic medicine, only commenced 
about the middle of the sixteenth century. The criminal 
code of the Germanic Empire, originating with Charles 
V., and enacted by the Diet held at Eatisbon, in 
1532, (Constitiitio Criminalis Carolina) is the first 
public recognition and the first legal application of the 
science which we meet with in modern history. This 
celebrated code, which still rules the proceedings of 
German Courts, enacts that physicians shall be con- 
sulted in all cases where death has been occasioned by 
violent means, whether criminal or accidental, <fcc., <fcc. 
And one of the first fruits of this new authority to 
medicine, was her successful encounter with, and over- 
throw of, many dominant superstitions, which had not 
only fettered the public mind in those days, but cost, 
as in the accusations for witchcraft, the lives of thou- 
sands of innocent people.* The ordinances of the kings 
of France, subsequent to the days of Charles V., com- 
*“Wierus, a physician of the Netherlands, in a treatise uDe 
Prcestigiis Dcemonum et Jncantationibus, Basle, 1564, combats 
the horrible prejudice by which those accused of witchcraft were 
thrown into the flames.”—Hallam, Lit. of Europe, vol. 1, p. 289. 12 
bined in the form of codes, what had formerly been 
only customs, a tribute to the wisdom of the German 
emperor, and an acknowledgment of the wants of their 
own jurisprudence. In 1606, Henry IV. gave letters 
patent to his chief surgeon by which he was authorized 
to appoint two physicians in each town, who in the 
nature of coroners should investigate and report upon 
all cases of accidental death. And in 1667, Louis XIV. 
decreed that in all criminal matters requiring reports, 
courts should be assisted by at least one of the phy- 
sicians named by his chief surgeon. Of such binding 
obligation were all these ordinances upon courts, that 
a decree of the Parliament of Paris, in 1662, and of 
the Parliament of Dijon, in 1650, set aside judgments 
rendered without the intervention of medical experts. 
The foundations of medical jurisprudence being fully 
established as part of the municipal code of most Con- 
tinental nations, commentators and compilers of its 
canons, and the decisions under them, now began to 
appear in great number. With scarcely an exception, 
these early writers were physicians; the Italian and 
German schools equally dividing the honors of author- 
ship. It would be out of place here to attempt to 
enumerate by name the multifarious treatises upon this 
science, in its various departments, which have appeared 
from time to time, and would render a mastery of its 
bibliography alone a burthensome undertaking. With 
this department, every medical jurist will of course see 
the propriety of at least a limited acquaintance, at some 
time; though it will be sufficient to say in this connec- 
tion, that the number of its volumes is computed at 
12,000,* in order to make every one feel the necessity 
of a judicious selection from this great lumber-house, if 
* Hoffman’s Course of Legal Study: vol. 2, p. 701. 13 
he would wish to learn nothing for the mere purpose of 
unlearning it. 
As a branch of instruction, medical jurisprudence is 
but a new comer in the schools; and as its first teachers 
were physicians, so its first altars were erected in medi- 
cal colleges. Inasmuch, also, as its first seed was cherished 
in the bosom of the old Civil Law, so those countries 
first received it which had themselves derived the 
foundations of their jurisprudence from the same source. 
Haller’s lectures on juridical medicine, which were pub- 
lished in 1782, indicate already the establishment of a 
chair of instruction in Germany, probably the first in 
Europe. In 1792, the first professorships of the science 
were created in the colleges of France, and in 1803, in 
the University of Edinburgh. And while no special 
instruction on this subject appears to have been given 
in the schools of England before the year 1820, it had 
already been made the subject of lectures in the United 
States as early as 1804. So far as can now be ascer- 
tained, the first lectures on Medical Jurisprudence in 
this country were delivered in the city of New York, 
and to the students of Columbia College, in the fall of 
1804, by Dr. James S. Stringham, then Professor of 
Chemistry. This chair he filled until his death in 1817, 
when he was succeeded by the late distinguished Dr. 
John W. Francis, who occupied it until the year 1826. 
And although Dr. Francis’ name does not appear as 
author of any treatise on medical jurisprudence, I be- 
lieve I may truly say that he has been the most 
voluminous contributor of personal observations in this 
country, to that science, and has received less credit at 
the hands of those whose authorship he has assisted, 
than is generally known. It is a pleasure to be able to 
pay this deserved tribute to the memory of one who 
was himself not only the best of friends and patrons to 14 
the humanities in our midst—the true Maecenas ot 
science and art in her metropolis, hut did so much also 
to rescue the memory of every deserving brother from 
the effacing hand of time. 
While Dr. Stringham was delivering his lectures on 
medical jurisprudence in Columbia College, Dr. Charles 
Caldwell delivered a course on the same subject in 
Philadelphia, during the winter of 1812-13; and in 
1815, Dr. Beck was called to fill a similar chair in the 
Western Medical College. Since that time, and, ad- 
vanced into prominence by Dr. Beck’s encyclopaedic 
work upon the subject, forensic medicine has been con- 
sidered as part of a regular course of medical study, 
and most schools have accordingly introduced it into 
their scheme of lectures, though generally as a subor- 
dinate branch, and appendant to some other chair. At 
last, also, the law schools have recognized it in many 
instances, and adopted it as an adjunct science, collateral 
to, and not in the main line of required studies. Slowly 
and surely, however, it is workiug its way to that emi- 
nent position which belongs to it in the internal economy 
of government, for it is truly a part of the Jus Gen- 
tium—of the necessary law of every State, whether in 
its capacity of medical police, or of forensic medicine. 
PHILOSOPHY OF MEDICAL JURISPRUDENCE. 
The foregoing sketch of the history of this science 
prepares us to see that its rootlets are implanted in the 
foundations of civilization. Wherever civil society ex- 
ists there is a necessity for this syncretism of law and 
medicine, which illuminates justice, and gives to legis- 
lation itself a higher character of scientific accuracy. 
The internal government of France, Prussia, or England, 
as compared with that of Turkey, Morocco, or Persia, 
in all those relations of life which require protection 15 
for the weak—preservation of the public health—the 
equitable administration of justice—and the officious 
distribution of estates—in a word, the expression of a 
moral power in the State, competent, by scientific illu- 
mination, to administer justice according to principles, 
and not according to forms, so that the spirit rather 
than the letter shall govern in weighing human rights 
and human responsibilities—this moral atmosphere can 
be found only where civilization, aided by revelation, 
has developed its most consummate fruits. 
The philosophy of medical jurisprudence is founded 
in the necessity of applying the laws of nature in the 
administration of justice, no less than in the preserva- 
tion of the public health. In a large range of subjects 
it is occupied with the consideration of topics that 
are, strictly speaking, exclusively medical in character.* 
Upon these the opinion of experts is final and conclu- 
sive. With the exception of insanity, physiological or 
pathological conditions of the human body do not 
generally occasion irreconcilable differences of opinion 
between experts. There is always some middle ground 
upon which they can meet; some acknowledged princi- 
ple they recognize as fundamental, and about whose 
application alone they differ. But for the field of psych- 
ology, forensic medicine would be simplified into an 
investigation of physical laws having definite com- 
plexions, exhibiting few exceptional or contradictor 
signs, and amenable to something akin to positive de- 
monstration of correlation between first causes and 
* In an article of this kind, designed especially for the columns 
of a journal of Psychological Medicine, I have felt myself author- 
ized to omit all consideration of such subjects as rape, abortion, 
infanticide, poisons, &c., in order to be able to dwell somewhat 
largely upon the topic of insanity, as one more germain to the 
character of the publication in which this sketch appears. 16 
ultimate consequences. No link in sucli a chain of proof 
is even necessarily absent, because the efficient causes of 
material changes must in their very nature be material, 
and it is a question dependent very much upon experience 
in observation, whether or not we are able to trace the 
series of catenated influences which produce any ultimate 
effect. Some will see it, others will not, and because 
science imparts pre-vision, those who possess her ex- 
perience can prognosticate. Without her light added 
to that of experience, we should hardly be able to push 
our investigation beyond the differentiation of effects, 
while causes would remain unobserved. 
As we pass, however, from the world of matter to that 
of mind, we find ourselves very soon in the presence of 
manifestations for which there are no analogies in the 
former sphere. The law of proportion seems entirely 
dethroned. Trivial causes produce gigantic effects, and 
contrariwise, powerful causes produce wholly inadequate 
consequences. Is this a reality, or is it only phenomenal 
to us % Is it a fact without an appreciable manifestation 
on the one hand, or is it a manifestation subjectively 
exaggerated and without any postulate and objectively 
adequate cause ? These perplexingly intricate problems 
in the realm of pliysio-psychology, have imparted to 
the science which undertakes to resolve them, a pro- 
portionally commanding character. And inasmuch as, 
in the administration of justice, such problems are fre- 
quently arising, to afford texts upon which legal logo- 
machy can exercise itself illimitably, the opportunity for 
confusion of ideas and illogical conclusions is perhaps 
greater here than in any other field of human investiga- 
tion. It is this fact more than any other which has 
given to questions of insanity such a portentous charac- 
ter before courts. For, if the entire sphere of man’s civil 
or criminal responsibility may be modified by the mental 17 
character revealed through his actions, it follows that 
as many interpretations as can be put upon those actions, 
just so many phases of responsibility will there be made 
out. All human responsibility turning, therefore, upon 
mind in the concrete, and as related to particular actions, 
the value of a science auxiliary to the administration of 
justice should be estimated according to the measure of 
good it can supply in this direction. The law looks to, 
and in fact employs, forensic medicine as in every sense 
amicus curice—a counsellor retained not in the interest 
of one party, but in that of truth generally; and the 
philosophy of this science as it has gradually been un- 
folded, has shown the essentially legal necessities upon 
which it rests. It is from its association with juris- 
prudence that it exercises so commanding a sway in the 
field of contested rights, remedies and responsibilities; 
and it is in that portion of it where mental unsoundness 
enters into the question of civil obligation, that we must 
seek for the reason of those principles which it furnishes 
to law as an illuminator of its pathway. 
Law as a rule of conduct in human society pre- 
supposes the existence of rational beings, among whom 
the consciousness of civil relation exists.* Law there- 
fore pre-supposes reason, and reason implies a mind or 
intellect in which that function can be performed. In 
distinguishing man from all other animals by this 
heavenly gift, God has created within us a system of 
natural jurisprudence, of which conscience is ruler, and 
intellect the external minister and instrument. The 
first offspring of conscience is justice, “ that gods and 
* Aristot. Polit.: Lib. 1, c. 2. In Ilomine optimum quid est? 
Ratio. Ilac antecedit Animalia, Deos sequitur. Ratio ergo per- 
fecta propriwm Ilominis bonum est. Caetera illi cum animalibus 
satisque communia sunt. Seneca, Epist. 76; Vid. Cicero dc Offic.: 
lib. 1, c. 4. 18 
men do equally adore,” and the idea of justice implies 
obligation (suum cuique tribuens)—obligation in its 
turn involves responsibility. Therefore law, which is a 
rule of conduct measuring the responsibility of man to- 
wards his fellow-being in society, must, before defining 
the extent of his obligation, ascertain whether or not 
any foundation for that obligation or responsibility 
exists—whether or not the source or fountain of that 
obligation, the recta ratio, continues in its integrity. 
For it is clear that where there is no mind, there is 
legally no man; and where there is no man, rational and 
reflective, there can no law of responsibility apply. 
Such a being becomes simply an animal endowed with 
the vis natures, not the jus naturae.* Whence it follows, 
that the most important application of medical juris- 
prudence to the concerns of daily life, is that of ad- 
measuring the intellectuality of man with reference to 
a determination of his civil or criminal responsibility 
before the law. This must be considered its most im- 
portant application, because it involves the largest 
number of interests, whether monetary, personal, or 
reputational. And since property, personal security, 
and reputation are the foundations upon which all civil 
government is built, that science cannot be of slight im- 
portance, whose practical application looks to a protec- 
tion of these pillars of social progress and social prosperity. 
Now as the law considers the assent of the mind and the 
freedom of the will to be the indispensable prerequisites 
of every action entailing a perfect or an imperfect obliga- 
tion, so it requires in every case of doubt, arising from 
exceptional circumstances, that the will should be proved 
free from duress? and the mind from disqualifying dis- 
order. To prove the presence and the extent of disorder 
of the mind in any alleged case of insanity, is the contri- 
* Taylor’s El. of Civil Law, p. 120. 19 
bution which medicine presents, in the form of skilled 
testimony, to law; and, upon this testimony, law ad- 
measures the civil or criminal status of the party in 
whose behalf this interlocutory plea is made. As this 
is the most intricate, so it is the most debatable problem 
in the whole science of forensic medicine; for it is in 
this department in particular that the medical jurist 
will find his talents most tasked, and his authorities 
most conflicting. Wherever extremes of mental depri- 
vation, like idiocy or general mania, occur, 
“ Demoniac phrenzy, moping melancholy 
And moon-struck madness,” 
there can he no question of the legal irresponsibility of 
its victim?. Mens peccat, non corpus, et unde consilium 
abfuit, culpa abest. Such forms of disease are so patent 
in their outward manifestations that they silence, at the 
outset, all doubt and all discussion. It is far otherwise, 
however, with that numerous train of mental disorders, 
which, while existing obscurely excite no alarm, until 
some accidental crisis determines their explosion and 
their mastery over the entire intellect and the emotions. 
It is here that courts, losing themselves in the inextri- 
cable mazes of conjecture, require the assistance of 
experts, whose familiar acquaintance with the Protean 
shades of insanity enables them to weigh and gauge 
each particular case by a standard of its own. Had 
mankind been originally grouped into specific classes, 
each having its own peculiar mental disorders, and no 
other, we might indeed presume to frame a code of in- 
flexible formula), graduated to the necessities of each 
class. 
But nature has created no such arbitrary distinc- 
tions as these. She dislikes in fact all intrusive restric- 
tions, all angularity of motion, of thought, and of feel- 20 
ing; and even as in the physical world she delights 
to move in circles, and parabolas, and hyperbolas, so in 
the world of mind she gives each individual control over 
his own intellectual orbit, and allows him to extend or 
diminish its axes at will. 
Were it possible to define insanity, which it is not, 
so as to bring it within the limits of an uniform symp- 
tomatology, we might easily dispense with the lights of 
medicine and of metaphysics in establishing its exist- 
ence ; but inasmuch as no two minds are alike, either in 
health or in disease, we are consequently driven to the 
necessity of inquiring, at the outset, into some of the 
general and most unvarying phenomena of intellection, 
in order the better to analyze and classify deviations 
from the average standard of health, in the operations 
of the mind. 
The science of mental philosophy is so vast and com- 
prehensive, its domain is so boundless, and our charts 
are so meagre and insufficient, that we may well hesitate 
as we enter upon the confines of that 
“ Dark, 
Illimitable ocean, without bound, 
Without dimension, where length, breadth and height, 
And time and place are lost.” 
Through all the ages man has "been grappling with the 
unknown and the infinite, and striving in a thousand 
ways to transcend the inexorable limits of finite intelli- 
gence. What is that inscrutable principle which we 
•call mind ; which is akin to life, being never found with- 
out it, and yet is not life—which comprehends the 
universe in its grasp, and yet is not the universe— 
which makes destiny, and yet is not destiny—such is 
the great problem of our intellectual Cosmos which man- 
kind have vainly sought to solve with their feeble 21 
faculties. At this portal of the realm of mystery, specu- 
lative philosophy has been wearily knocking through 
all time for admission. There she has remained, sum- 
moning to her aid legions of followers from the wise and 
good of earth, they toiling, struggling, ever-hoping, all 
unconscious of having reached the Calpe and Abyla 
of mental exploration. And so the army of besiegers 
has steadily increased with the centuries—Aristotelians 
from the Lyceum, Platonists from the Academy, Cynics 
from the Cynosarges, Stoics from the Porch, and Epi- 
cureans from the Garden—all these meeting with Spinoza, 
and Hobbes, and Berkeley, and Locke, and Kant, and 
Comte, in one great army of embattling sages. But still 
the gate stands firm, unmoved, unshaken, as on that 
morn when light first sprung from chaos and ancient 
night. And the self-eluding ego which bafiled antiquity 
has not surrendered its mystic ens to the more enlight- 
ened Positivism of modern times. Beal progress in 
mental philosophy dates only from that time when 
mysticism and ontology gave way to an inquiry into 
the laws regulating the sensible operations of the mind. 
Passing by the noumena of intellection, and confining 
themselves exclusively to the phai-noumena, mankind 
have now learned to read lessons in psychology where 
formerly they knew not so much as its alphabet. They 
have attained unto wisdom by ceasing to inquire what 
the mind is, or where it is located, and by turning in- 
stead to study how it acts, and how it is acted upon. 
In fact they have learned wisdom by learning to confine 
their efforts and to limit their explorations within the 
realities and not the probabilities of mental operation. 
And it is with the realities and not the probabilities 
of mental operation that the law is concerned. It is of 
man as naturally a rational being, and only exceptionally 
insane, that the law takes cognizance. Because also of 22 
tlie difficulties which surround the application of prin- 
ciples of law to the regulation of the civil or criminal 
status of the insane, there has arisen a professional 
syncretism between law and medicine in the creation of 
this science of medical jurisprudence, whose most trying 
and tedious explorations are in the misty realm of mental 
alienation. There, law alone could scarce support her- 
self by rubrics of logical deduction. And there, medi- 
cine alone could do no more than apply her gauge of 
health to manifestations of human conduct. Therefore 
is their union needed to say what the legal effects of 
certain physical facts shall be to the individual mani- 
festing them and to the community at large. The 
cognation of the two sciences is in these essentials per- 
fect ; and their united application in cases of alleged 
insanity gives to jurisprudence the highest measure of 
moral certainty and justice which it is possible to secure. 
With the mind in a normal state medical jurispru- 
dence does not necessarily concern itself. The law needs 
no assistance there, nor are the resources of medicine 
invoked. But when disorder and discordance occur in 
its operations; when the equilibrium of a just balance 
between its faculties is so greatly and permanently dis- 
turbed as to announce an entire change in the habits of 
thought, feeling, conversation and conduct of the in- 
dividual—when, comparing his present condition with 
that of previous months or years, we find him entirely 
unlike his former self, then it is that law interposes her 
equitable arm to protect him against the consequences 
of his own acts, or to shield society from the dangers 
of his unrestrained impulses. Such parties are con- 
sidered as under civil disability, for where there is 
either absence or suspension or perversion of the reason- 
ing faculty, there can be no legal assent of the mind to 
the obligation of a contract, or to the terms of a will, 23 
nor does any criminal responsibility attacli for offences 
committed. The insane are, as before the law, civilly 
dead. 
Here, then, we come upon an exceptional class of 
citizens who, without being criminal, are yet, and of 
necessity, in custody and under some form of guardian- 
ship. They are said to be of unsound mind, or as the 
law more aptly describes them, non compos mentis; still 
it is not the mind, so much as its manifestations, which 
are disordered. It is a want of proportion and harmony 
between its faculties which occasions mental discord. 
A broken or exaggerated relation lying somewhere be- 
tween the noumena and phainoumena, and giving rise 
to an epiphainoumena, in other words, an idea repre- 
sented to the mind by a distorted or delusional symbol 
or image. Yet the mind itself must always be consid- 
ered unitary in principle, one and indivisible, and 
although stripped of every faculty, capable of manifest- 
ing itself to our senses, cannot on that account be 
conceived as extinguished. Its avenues of communica- 
tion with other minds may be closed by death or disorder, 
but that of itself does not prove its extinction. It may 
leave the body in which it has sojourned, when death 
assails the latter, and may and does in fact escape from 
the fetters of earthly union; but who believes that it 
dies, or suspends its activity from these causes? Who 
believes that it does not continue an individual and dis- 
tinguishable mind throughout all eternity ? 
But aside from these dogmas of Christian belief, we 
must consider the mind in its relation to an organ, the 
brain, without which in a finite state we never find it 
existing. The brain, physically speaking, is the organ 
of the mind—the instrument through which, in human 
beings, the mind expresses its existence. And the chief 
glory of this organ is its endowment with a faculty 24 
{animal-sentient) which no other created organ shares. 
Receiving a material impression, it returns a sentient 
impression, thus developing from a physical stimulus 
entering through the senses, an intellectual perception 
and apprehension. From this indissoluble connection 
of mind with matter, we perceive that there is a bond 
of sympathy between them, which more particularly 
reveals its presence in times of bodily suffering. When- 
ever the body is racked with pain, the mind concentrates 
its sympathy upon this condition, and refuses to be di- 
verted from it. And when the degree of pain or of 
febrile excitement is exalted to its highest stretch, the 
mind often becomes so exquisitely sympathetic as to act 
irrationally—in other words, delirium sets in, for, in the 
language of Lear, 
“We are not ourselves 
When Nature being oppressed, commands the mind 
To suffer loith the body” 
or, as Lucretius also expresses it: 
“ Quin etiam raorbeis in corporis avius errat 
Soepe animus; dementit enim, deliraque fatur.” 
—Lib. 3, 464. 
From these premises we deduce two necessary conclu- 
sions, viz.: First, that the dualism of mind and matter 
renders them mutually influential/ and Second, that dis- 
order of either organism cannot long continue without 
affecting the equilibrium and health of the other. From 
these data we must conclude that mental unsoundness 
is not so much a disease of principle as it is a disease of 
relation—of relation between the functions of the mind 
themselves, and of relation between the functions of 
the mind and those of the body. Its seat is therefore in 25 
the collective personality of our duplex nature.* Grant- 
ing this to be true, we are at liberty to take sides 
neither with the somatists, nor the extreme psycholo- 
gists, but avoiding both in the search for a golden mean, 
we can safely rest our conclusions only upon the doc- 
trines of an intermediate theory, (in medio tutissimus 
ibis.) This appears to be the only true and orthodox 
rationale which the calm, deliberate judgment of the 
present day adopts in explanation of mental unsound- 
ness. 
It would not be difficult to show that insanity, as a 
form of disease, was recognized in the earliest days of 
the medical art; nor that it excited, as it does now, the 
attention of philosophers, poets and legislators. Were 
I to yield to the temptation which here presents itself, 
of making an excursus into the fields of psychological 
literature, I could easily consume the space allotted me 
in selections and illustrations drawn from one of the 
richest and most captivating store-houses of history. It 
must suffice in an article like this, and when only the 
philosophy of a science is to be discussed, to mention a 
few names, in order to recall to the minds of classical 
scholars the characters of insanity which they repre- 
sent. The feigned madness of Ulysses, which Palamedes 
discovered ; that of Ajax, who mistook a flock of sheep 
for the sons of Atreus; that of Orestes, pursued by 
Furies; or that of the heaven-inspired Cassandra, all 
show that the old poets well understood the physi- 
ognomy of insanity. In the field of hallucinations, in 
particular, the student will find everything that the 
most ardent imagination could desire, all in fact that 
novelists, poets and metaphysicians seek for in the mys- 
* Feuehsterleben, Med. Psych.: §123; Brodie, Psych. Inq.: 
London, 1854; Falret, Le9ons Clin, sur 1’Alien: Ment. Lee. 1, 
p. 8, Paris, 1854. tical and inscrutable essence of our emotions.* And 
he will there learn lioW the epidemic religious lunacies 
which swept over Europe during the middle ages—the 
Pastoureaux,f the Flagellants, the Bianchi, the ecstatics 
of the Cevennes, or more lately the Vampyrism of 
Hungary, Moravia, or Lorrain, and the Mommiers of 
Switzerland—all arose out of an expansion of those 
mystic ideas, which, among the ignorant and uneducated, 
are ever struggling to crystallize themselves into forms 
of religious ceremonial. And, among the aberrations 
of great intellects, ever treading on the confines of in- 
sanity, if we may credit the philosopher of Stagira— 
that, nullum magnum ingenium sine mixtuva dtmentioe, 
or, as Dryden lias gracefully paraphrased it, 
“ Great wit to madness nearly is allied, 
And thin partitions do their bounds divide.” 
Among tliese infirmities of genius, the inquirer will find 
himself well rewarded by studying the Demon of Soc- 
rates,J the Amulet of Pascal, the imaginary chorus 
of Paracelsus, the contests of Luther witli Satan, the 
visions of Mahomet, Swedenborg and Benvenuto Cel- 
lini ; all exemplifying true manifestations of that 
hallucinatio studiosa which is born of an over active 
*Brierro de Boismont Des Hallucination?, &c. Paris: 1852; 
Eusiba Salverto “Dos Sciences Occultes,” &c. Paris: 1856. 
f Ilallam’s Middle Ages, p. 404; Du Cange, Pastorielli et Ver- 
beratio. 
Yid. Horat. Epist.: Lib 2, 2, 128, for a most beautiful descrip 
tion of a hallucination. 
JOn this very interesting question, which has exercised the 
educated mind of the world for centuries, vid. Xenophon’s Mem- 
orabilia, Plato’s Apology, Banquet,&c., Plutarch on the Demon of 
Socrates, and a review of these in a recent work entitled, “ Du 
Demon de Socrate,” par L. F. Lelut: Paris, 1856. and heat-oppressed brain. But, for the most life-like 
delineations of insanity in any language, we must turn 
to Shakspeare, whose psychology is as perfect in all re- 
spects, as though it had been written by one who had 
made insanity the study of his life-time. Surely, no 
master of the human passions has soared nearer the 
sun than he, and none so deftly limned, in all the 
variety of their manifold aspects, the sad aberrations of 
the distempered intellect. Whoever has thoroughly 
possessed himself of those master-pieces of dramatic ex- 
cellence that form the characters of Hamlet, Ophelia, 
Lear, Macbeth, Tirnon of Athens, or the melancholy 
Jaques, has taken a deeper lesson in the mysterious 
features of mental disorder, than all text books, or re- 
ports of insane asylums can impart to him. 
As a disorder overpowering the will and deranging 
the manifestations of the mind in its postulate percep- 
tions, insanity has been well known and equally well 
described in all ages. And its disqualifying effects 
upon its victims, in all acts involving a civil or criminal 
responsibility, has ever been recognized in the juris- 
prudence of civilized nations. The laws of the twelve 
tables made provision for the guardianship of lunatics 
and prodigals, and the enactment was repeated in the 
Institutes of Justinian.* The law of England and of 
our country has always regarded with peculiar and 
tender solicitude, persons laboring under mental un- 
soundness. Hence, their contracts and wills are always 
deemed voidable, according to the degree of incapacity 
of their understanding, and their actions entail no crim- 
inal responsibility, whenever it can be shown that the 
mind was not capable of judging of the true nature of 
the act committed. This question of the degree of in- 
* Table V. Si Furiosus est, &c ; Inst. lib. 1, Tit. 13, 26; Ilorat. 
Sat.: lib. 2, 3, 214. 28 
capacity of the understanding, lias given rise to much 
discussion in courts. It lias divided opinions upon the 
subject of mental unsoundness into two classes, and 
driven either side to extreme views. There are those 
who, planting themselves upon the unitary and indivisi- 
ble character of the mind, assert that there are no degrees 
in insanity, consequently no monomanias, and no par- 
tial insanity. With them it is total insanity or none at 
all. Others again believe that monomanias can exist 
as accompaniments to minds otherwise healthy, so far 
as human art can detect; and except one particular 
illusion, producing aberration of the judgement with 
reference to itself, competent to reason correctly upon 
all other subjects. If this be admitted, then we hazard 
nothing in asserting that in many instances mono- 
mania cannot be distinguished from exaggerated eccen- 
tricity, and may therefore be mistaken for a disease, 
when it is in fact only the natural habit of mind; as 
we say of one man that he has a poetical mind, and 
of another a mathematical mind, both being eccentric 
and diametrically opposite, yet neither state arguing 
insanity a priori. It is this extreme difficulty of de- 
termining what amount of individual dissimilarity any 
person shall be allowed to exhibit in his opinions and 
conduct, as against a certain arbitrary and conventional 
standard, having only a local or temporary character; 
it is this difficulty of determining how far a man has a 
right to be himself, without incurring the imputation of 
being insane; which renders the doctrine of monomania 
so illogical. For, in its strictest application, it is suffi- 
cient for any one to be unfashionable in garb, demeanor 
or opinions, to be at once decreed insane; and the only 
standard of mental health recognized therefore would 
be one never originally created, viz.: entire uniformity 
in all things between all men. 29 
This doctrine of partial insanity it lias been the prov- 
ince of medical jurisprudence to interpret to courts in 
such a way as to convince them of its fallacious charac- 
ter. And while American courts are still said to admit 
its existence eo nomine, they certainly have not in their 
rulings treated it as a form of true mental unsoundness. 
All their decisions, whenever this point has been mooted, 
have glazed over the significant principle that the law 
cannot concern itself with degrees of insanity, to say in- 
stead, that, wherever the subject matter of the transac- 
tion, be it contract or will, is not infected with insanity, 
the act, even of one alleged to be partially insane is only 
voidable, and not db initio void.* In England this was 
also the rule repeated and reaffirmed in all those de- 
cisions which have immortalized the name of Sir John 
Nicoll, nor was it ever questioned until the year 1848, 
when Lord Brougham, in a case before the Privy Coun* 
cil, ruled that it was erroneous to suppose that a mind 
established to be partially insane, could be really sound 
upon any subject, and therefore competent to make a 
will. This decision was the first introduction of a 
purely medical and psychological dogma into the ele- 
ments of a legal judgement, and while abstractly 
correct, has not yet secured general recognition in our 
courts. Nor is this surprising, since under this ruling 
great hardships might occur, and great wrong be done in 
the sacred name of Justice. For, were Lord Brougham’s 
* “ Courts in passing upon the validity of a will do not measure 
the extent of the understanding of the testator, if he be not totally 
deprived of reason; whether he be wise or unwise, he is the lawful 
disposer of his property, and, his will stands as a reason for his 
actions. A man’s capacity may be perfect to dispose of property 
by will, yet inadequate for the management of other business, as 
for instance to make contracts for the purchase and sale of pro- 
perty.”—Stewart's Exrs. vs. Lispenarcl, 26 Wend. 255, and reaf- 
firmed in Blanchard vs. Nestle, 3 Denio, 37. 30 
dictum* strictly applied, and assuming delusion and 
insanity to be convertible terms, any individual oc- 
casionally visited by a hallucination, which Donne 
describes as “ eclipses, sudden offuscations and darken- 
ings of the senses”—such in fact as visited Luther, 
Swedenborg, Pascal, Dr. Jolmson, Ac.,—would be deemed 
incompetent to perform any valid testamentary, or other 
legal acts. According to this view, hundreds of minds 
competent to transact business would be denied the 
right of finally disposing of tT,eir estates. 
It must be evident to all Mat if we could extricate 
ourselves from the confusion of terms, and rightly 
understand the true import of the term insanity as 
necessary to be recognized at law, we should not dis- 
agree practically, upon that to which, theoretically, we 
can all subscribe. We must know at the outset whether 
we use the term abstractly and absolutely, or relatively 
to some particular transaction. Speaking abstractly of 
any two opposite qualities, like health and disease, it is 
unquestionably true that both these conditions cannot 
coexist with reference to time and subject. They mu- 
tually exclude each other in one of these particulars. 
Thus, and as an abstract moral proposition, we are 
either good or not good, and if not good, then bad. 
And, speaking psychologically, we are either sane or 
insane, if not the one we must be the other. And yet 
it is also true that apparently we may be both sane and 
insane at the same time in relation to different subjects, 
* “We are wrong in speaking of partial unsoundness, we are less 
incorrect in speaking of occasional unsoundness; we should say 
that 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.” 
— Waring vs. Waring, 6 Moore, P. C. Cases, 349. 31 
as we may be truly sane, and again insane at different 
times on the same subject. According to Sir John 
Nicoll,* this principle was long ago recognized by tlie 
law of England, and formed tlie foundation of all ad* 
judications in cases of partial insanity. Nor can its 
correctness be doubted. The history of religious lunacy 
abundantly proves that the followers of fanatics and 
enthusiasts, during their continuance in the bonds of 
delusion are, none other than insane, while in other re- 
spects apparently sane; and when recovered from their 
delusion will it be pretended that they can never after- 
wards entertain sound religious views? Will it be 
asserted that a Thug or a Parsee when he casts off the 
slough of his old creed can never become a Christian? 
Or shall every Millerite and Mormon be deemed incom- 
petent to make a will or a contract, though in other 
matters sane enough ? These are the ends to which ab- 
stract and absolute constructions of principles would 
lead us. But neither law nor medicine deal in abstract 
propositions. The science of numbers can avail them 
nothing in determining the laws of our physical or 
moral nature. For Justice in her inquests upon human 
conduct considers the individual relatively, and under 
the light of moral evidence. In weighing his civil or 
criminal responsibility, it weighs all his surroundings, 
his age, his infirmities of body and of mind, the influ- 
ences to which he has been subjected, together with the 
motives for acts. In none of these things does it pre- 
judge him, but on the contrary exacts evidence in 
support of them all. Therefore, and regarding the 
majority of men as sane it presumes them to be so until 
the contrary appears. And whenever alleged insanity 
occurs, its effect is require 1 to be shown before the in- 
dividual shall be deprived of his civil rights; since no 
*Dew vs. Clark, 1 Addaras, 279. 32 
presumption of insanity follows from proof only of 
great eccentricity, and even in what is called partial in- 
sanity, before courts, an individual has rights of which 
the law will not wantonly deprive him;* and contrari- 
wise, incurs responsibilities both civil and criminal, from 
which he cannot escape, f 
But the greatest difficulty encountered by medical 
jurists in the field of their labors before courts, has been 
in the department of criminal law. As the philosophy 
of forensic medicine rests upon the necessitated aid of 
Medicine to Law in questions of human responsibility, 
so it has had, as a dual science, to contend, in a measure 
with both of its parents; at times taking sides against 
one, and subsequently against the other. The French 
school of psychologists founded by Pinel, has the merit 
of advancing the knowledge of insanity to a degree not 
previously possessed ; and of ameliorating the treat- 
ment of its victims so as to secure the greatest possible 
benefit from rational medicine, if an increased number 
of recoveries be any test of successful therapeutics. 
But that school also introduced an apple of discord into 
the forum of juridical medicine, which, while it has im- 
mortalized its name, will yet be looked upon in each 
passing year as the most dangerous error and specious 
stumbling block ever placed in the pathway of justice. 
In fact it is the most remarkable illustration of how far 
the reverence for a name can silence criticism, and how 
easily even the logistics of jurisprudence may be made 
to contradict themselves, by courts too readily accepting 
dogmatic assertions for positive conclusions. It is hardly 
necessary to say that we allude to the doctrine of moral 
insanity. If we examine the physiognomy of this 
* Stewart’s Exrs. vs. Lispenard, 2G Wend. R., 255. 
f Commonwealth vs. Rogers, 7 Mete., 500. 33 
psychological sphinx and read its character in the 
words of one of high authority, we shall only wonder 
the more that any court should ever have allowed it to 
be discussed as a possible entity within its walls. In 
these cases, says Dr. Winslow, “ the person manifests no 
mental delusion; is not monomaniacal; has no hallu- 
cination ; does not confound fancies with realities; but 
simply labors under a morbid state of the feelings and 
affections, or, in other words, a diseased volition.”* 
But this last sentence is hardly finished: it should have 
terminated with the proper inference to be drawn from 
this*critical description, in the only words applicable to 
the case, viz.: and is not insane. Of course not. Why 
should any man who so nearly resembles the majority 
of mankind as to be practically undistinguishable from 
them—why should this man in particular be called 
morally insane ? Are not all Adam’s offspring more or 
less morally insane? Where’s the perfectly healthy 
moral nature among us ? Judged by so elastic a system 
as this, why bring the plea up in behalf of the prisoner, 
when it is just as easy to accuse the Court itself of in- 
sanity, and demur at once to its jurisdiction? The 
description of a moral lunatic given above might suit 
the judge, the jury, the district attorney, the witnesses; 
any one in fact whom we may please to consider as hav- 
ing acted from irresistible impulse, and without rational 
motives. The door being once opened to such a plea 
as this, all human responsibility ceases—Satan himself 
becomes converted into a simple moral lunatic, and 
vice, like its father, appeals to our tenderest pity. Vice 
in fact ceases, or by substitution of names and perversion 
of principles passes into a disease and a misfortune. 
But why use the term moral at all, in speaking of 
insanity ? Insanity by itself is a sufficiently expressive 
* Plea of Insanity, p. 43. 34 
term, and if any one be insane, be is none tbe more so 
for being morally insane. If tbe adjective were simply 
superfluous in this connection, no barm would ensue 
from its use; but it is precisely because tbe term is 
meant to express a state of mind of wbicb there is no 
collateral nor even direct symptomatic evidence, that its 
introduction into criminal jurisprudence has been so 
strongly opposed. Nor can this be matter of surprise 
to those who recognize tbe binding obligation upon 
courts of the principle underlying tbe well-known 
maxim, De non appcurentibus et non existentibus eadem 
est ratio. In pure consistency with this key-stone in 
tbe arch of all legal evidence, no tribunal can otherwise 
rule than that tbe plea of moral insanity, as based upon 
tbe description of a state of mind in wbicb all tbe 
ordinary symptoms of insanity are absent, is an illogical 
and fallacious one, self-contradictory, and containing its 
own best refutation. Tbe first part of tbe plea admits 
that tbe person exhibits no evidence of intellectual 
derangement—no insanity in fact—while tbe second 
part raises a special traverse to this, by denying that 
tbe ordinary conclusion of such a premise should follow, 
and asserting instead, that, granting all the foregoing 
disproof of insanity, tbe person should still be consid- 
ered insane, not in tbe common, ordinary way, belonging 
to vulgar, organic causes, but through some metaphysi- 
cal disturbing force wbicb acts alone upon tbe will and 
the affections. We admit that the doctrine is exceed- 
ingly erudite, so recondite in fact as to find no legiti- 
mate place within tbe pale of so pragmatic a science as 
Jurisprudence. Like the doctrines of con and trans- 
substantiation,, tbe dogmas of homoiousian or hypostatic 
believers, or problems relating to tbe future state of 
disembodied spirits, it is a doctrine more suitable for a 
senate of theologians than a jury of laymen. It belongs 35 
to the middle age—the metaphysical period, as M. 
Comte would style it—of Forensic Medicine, but is fast 
giving way to that inevitable positivism, which, in the 
history of mental progress, always marks the attainment 
of a broad table-land of truth, and the building of the 
last, permanent foundations of any science. 
It would be well, therefore, if the term moral insanity, 
which at law is only an ignis fatuus leading us into bye- 
paths and labyrinths of confusion, could be interdicted in 
our courts. And yet it is probable that we shall not im- 
mediately be able to shake off the bonds of this cap- 
tivating designation, inasmuch as there are rulings upon 
it which turn precisely on the distinction between moral 
and intellectual operations in the mind. “Shadowy, 
fluctuating and indefinable” as is the boundary between 
these two mysterious realms, Law has still been com- 
pelled to search it out; and although she has walked 
onwards, groping her way through the dark, like Virgil’s 
hero exploring the way through Hades, 
“ Quale per incertam Lunam sub luce maligna 
Est iter in sylvis,” 
in vain endeavors to find the coveted line, she lias only 
returned disheartened to plant herself upon the dogma 
that “ moral insanity is always preceded by an efficient 
cause of mental disease,” and that, where no organic 
changes or delusions of the intellect are present, it is 
impossible to distinguish it from vicious propensities/* 
In its slighter manifestations, therefore, it is em- 
phatically an enigma, a sphinx, which even the most 
expert medical (Edipus cannot always unravel; and 
until radically established in the moral system, it hovers 
long on the confines of disease and depravity. Hence, 
*Bucknill and Take Psychological Med., p. 328. 36 
the law heretofore, without absolutely rejecting this 
doctrine of disease, has received it with caution and 
hesitation, because its boundaries are so indefinite, and 
its application in practice is open to such irregularities 
and contradictions of construction, that no rule of action 
can be framed upon it. It is in fact the true legal 
chaos; 
“Non bene junctarum discordia semina rerum.” 
The part which must thus be taken by forensic medi- 
cine against moral insanity will prove in its consequences 
of lasting benefit to the administration of criminal justice. 
This is a duty it owes to both sciences of law and 
medicine, for in its bosom alone can an union occur 
between them, and that union will always remain im- 
possible, so long as a purely metaphysical dogma, 
espoused by medicine as a canonical principle in its in- 
terpretation of insanity to courts—is attempted to be 
forcibly and illogically introduced into the adminstra- 
tion of justice. The reasons for this antagonism to the 
doctrines of Pinel we have already shown, nor do we 
think its warmest advocates can fail to admit that it is 
daily losing ground in the scientific world. There must 
be some good cause for this. Prejudice alone was never 
sufficient to dethrone a principle of truth once crowned 
in the temple of science. For the recoil of a truth 
momentarily oppressed, invariably carries it beyond the 
reach of future cavil. Such has not been the case with 
moral insanity. Slowly receding before the increasing 
lights and logic of medicine, it is fast surrendering the 
field usurped by it, nor can that day be far distant 
wdiich shall see it entombed among the errors of the 
past. 
One great duty yet remains to the medical jurist in 
questions of insanity before courts; the greatest and most difficult perhaps of any undertaken by him, and 
one too, whose proportional advantages to the adminis- 
tration of justice, can be measured only by the multitude 
of human relations in which it presents itself. We mean 
the duty of expounding to courts the utter fallacy of 
making the knowledge of right and wrong a test either 
of sanity, or the foundation of human responsibility. 
It is Pascal who wisely says that morality is often but 
a question of latitude, so that what is right on one side 
of the Pyrenees is wrong on the other. And every age 
and country will bear witness to the fact that right and 
wrong are questions of feeling as well as of reason, and 
regarded by men variously, in the abstract, no less than 
in the concrete. Individually, too, the innate sense of 
justice which moralists assert dwells in every one, is 
always subordinated to laws of temperament, disease, 
or influences of education. The knowledge or convic- 
tion of right and wrong is separate from other pure 
mental states, with which it may or may not sympathize 
and suffer. Hence, it is not necessarily, nor wholly de- 
stroyed in insanity. And its presence should not be 
taken as evidence against the existence of such a state; 
for it may coexist with the most perfect delusion. The 
bridge which unites the abstract to the concrete may be 
broken in some part, and the mind which knows right 
from wrong in the universal sense, may not be able to 
trace or follow its application out, in a particular in- 
stance. This is the quicksand in which courts are too 
apt to bury themselves, concluding that if a man knows 
right at all, he knows and feels its binding obligation 
in every particular instance, and the same may be said 
of wrong. Whereas, in fact a case of insanity seldom 
exists in which there is not such knowledge, and where 
too, (as always appears most incongruous to a layman,) 
reason is not found in juxtaposition with unreason; 38 
precisely as a man with a broken leg has some power 
of motion still, although the fulcrum upon which the 
muscles exert themselves is wholly impaired; in other 
words the muscles may act independently of the bone, 
but in such case they act at random. The knowledge of 
right and wrong as either a direct or a collateral standard 
of mental health, and consequent responsibility before 
the law, must be abandoned. It is of no more value in 
fact, than the knowledge of one’s own personality, and 
few indeed among the thousands of lunatics who till 
our asylums, do not possess that. It is a sign of little 
value in any case, and has, unfortunately for the cause of 
justice, always been unduly magnified in importance. 
Let us learn wisdom with the passing years. The prov- 
ince of a true philosophy is to point out the errors 
which, descending to us under the majestic cloak of 
precedent, still fetter our judgments, by first blinding 
our eyes. We must criticise, then, whatever commands 
our obedience, in order to ascertain whether it be justly 
authorized to do so. If its title to prerogative authority 
be good, it will court, rather than shun a rigid scrutiny; 
but if on the other hand its title be usurped, the sooner 
the fact is exposed, and the fallacy exploded, the better. 
This is the grand and solemn duty which is assigned to 
medical jurisprudence, a duty only to be discharged 
successfully by the concurrent action of law and medicine. 
From this imperfect panorama, it will be seen, that 
there are grave responsibilities resting upon botli pro- 
fessions in their disposition of the divided empire of 
insanity. There are mutual obligations to assist—not 
to resist—each other’s progress here; nor, because their 
paths are not always parallel, need they greatly diverge. 
There are mutual concessions to be made, which dero- 
gate in nothing from the dignity or the merits of pro- 
fessional legends. There are concessions to be made to 39 
medicine—that Divine art than which, says Tully, none 
brings men unto a nearer resemblance to the gods, be- 
cause she holds the vantage-ground of physical explora- 
tion—because she bears the only torch that can light 
us in our way through the misty realms of disease, and 
thus lends the opulence of her experience to the task of 
nicely adjusting the measure of our mental capacity. 
Bravely and sincerely have her ministers labored in 
this field of mystery; zealously and disinterestedly have 
they sought to bring a higher measure of light, and a 
truer interpretation of the results of mental infirmity, 
into the deliberations of the Forum. 
“ And for the testimony of truth, have borne 
Universal reproach, far worse to bear 
Than violence ; for this was all their care, 
To stand approved in sight of God, though worlds 
Judged them perverse.” 
And there are concessions to be made to the majesty of 
law, to whom “all things in heaven and earth do homage 
and to whom also by right of primogeniture, belongs the 
government of man in society. It is to her, the only 
bulwark against “ the desolating flood of wild misrule,” 
that we owe our liberties, our social security, peace, 
progress and prosperity. It is to her, the calm impas- 
sive goddess whose shrine is reason, and whose temple, 
“ orbed in a rainbow” of truth and justice, is closed against 
no suppliant, however weak, that we look for the secure 
enjoyment of all those temporal blessings which spring 
from industry and thrift. ’Tis wise, then, that her 
jealous conservatism sanctions no sudden or wide de- 
parture from well-tried experience, but while drawing 
to herself the lights of kindred learning determines the 
extent to which she will employ them. For the safety 
of all jurisprudence depends upon an enlightened and 
moral judiciary; one 40 
“ Whose "blood and judgment are so well commingled, 
That they are not a pipe for fortune’s finger, 
To sound what stop she please.” 
But fortunately there is a middle ground, equidistant 
from all ultraisms and citraisms, where both professions 
can meet and join hands in their final judgment upon 
this branch of municipal law. This ground is already 
well marked out in the recorded decisions of our courts 
and those of England; there is no reason why, for the 
present at least, it should be altered. There may indeed 
be occasional differences of opinion as to whether some 
enlargement of this ground should, or not, be made so 
as to include an extraordinary and exceptional case. 
Instances may occasionally happen where a mistaken 
zeal or humanity, seeks to force established opinion be- 
yond the limits of rational, moral evidences; and not 
succeeding in this, professional pride is wounded and 
writhes under defeat. But these are only differences of 
individual opinion, and should carry no weight as 
against the sodality of law and medicine. Instead of 
leaving rankling memories behind them, they should be 
like Hooker’s anger, only “ the momentary bead upon 
a phial of pure water, instantly subsiding without sedi- 
ment or soil.”