THE RESPONSIBILITY OF THE INSANE 
OUTSIBE OF ASYLUMS. 
By JOSEPH DRAPER, M. 13., 
Superintendent of the Vermont Asylum for the Insane. 
[From the American Journal of Insanity for October, 1883.] Tiie Responsibility of the Insane 
Outside of Asylums.* 
JOSEPH DRAPER, M. D., 
Superintendent of the Vermont Asylum for the Insane 
This paper is supplementary to one by the writer, 
read before this Association in 1879, entitled, “The 
Responsibility of the Insane in Asylums.” In that I 
aimed only at the civil responsibility of the insane, and 
declared my conviction that there was more responsi- 
bility exisiting in the insane than the public supposes, 
or the common law recognizes, and that 1 believed it to 
be our duty to support that responsibility in individual 
cases, and in the legal sense, to the utmost extent. This 
assertion was made, having in view the interests of the 
individual, sustaining him in the exercise of his civil 
rights, so far as we are ourselves convinced he may be 
able to comprehend his own responsibility, and to act 
upon it. I likewise ventured the assertion, that 
practically I had learned to regard all persons as 
largely accountable, who had so clear an idea of their 
situations as to presume upon their immunity in 
respect to criminal acts, from the simple fact of being 
declared insane, and theoretically I believed the 
insanity of a person might always be questioned when 
*Read at the Annual Meeting of the Association of Superintendents of 
American Institutions for the Insane, held at Newport, R. I., June 26, 1883. 2 
its subject sought shelter underneath its protecting 
shadow. These assertions then made applied to those 
within asylums. The principle has since been vindi- 
cated outside of asylums in the notable trial of 
Guiteau. 
In the discussion of this paper its application to 
criminal jurisprudence was touched upon, and some- 
what varying opinions expressed, but in the main, 
a modified responsibility was recognized. The extreme 
difficulty, if not impossibility, of determining the 
amount of actual responsibility was urged as a reason 
in criminal cases for clinging to the safe maxim in the 
jurisprudence of insanity, that a morbid condition 
beiug shown to exist in any respect in the brain of an 
individual, and evidenced by some abnormal mental 
manifestation, the responsibility should not be assumed 
in the legal sense in any respect. However humane 
and liberal such a conclusion may be, are we quite 
willing to rest upon it finally? Does it even in a 
philanthropic view satisfy fully our ideas of right, and 
comport altogether with the ends of justice and 
wisdom? 
The title of the present paper will doubtless suggest 
these interrogatories. Is the question or fact of re- 
sponsibility affected by the surroundings of the subject, 
wdiether within or outside the limits of an institution ? 
Is not a man insane wherever he may be, if insane at 
all, and is he less or more responsible in reality whether 
he be declared so and restrained, or be suffered to go at 
large ? 
In the general outlook we are accustomed to presume 
all persons unrestrained of their liberty as responsible 
to the laws, and all those restrained in asylums as 
irresponsible. In point of fact, we find both premises 
subject to so many exceptions, that we can hardly 
accept the foregoing general proposition, as the rule. 3 
At the outset I declare my own disbelief in tbe 
dogma of total irresponsibility in connection with a 
morbid manifestation only in some particular direction. 
It is to my mind a crude summary, having nothing in 
it satisfactory save that it tends to the side of mercy 
upon the bare semblance of a doubt. But even in this 
view, is it not open to criticism? Is it not a narrow 
view that looks only to the escape of the individual 
from a criminal act, and does not take into account also 
the interest of society, and in its largest scope that of 
the race? In point of practice, I am not sure I would 
go a step farther than the most decided advocate of the 
principle quoted. I certainly would not go a point 
farther than ray own convictions would carry me, but 
that it is possible for an individual to be responsible in 
some things, and irresponsible in others at the same 
time, I do believe. For the purpose of discriminating 
more clearly between responsibility and irresponsibility, 
I would recognize a difference practically between 
insane persons and persons of unsound mind. To the 
former belong those laboring under actual cerebral 
disease—pathological cases. To the latter, those of 
abnormal development, in whom constitutional de- 
partures from the normal and average balance exist— 
congenital cases. To the former belong the maniacal, 
the deluded—the irresponsible; and to the latter the 
erratic, the fanatical and the criminal largely—the 
responsible. In a careful survey of men, I apprehend 
that those most conversant with criminals recognize in 
them a peculiar and characteristic psychology. As a 
class they constitute a departure from the great average 
of the race. They have a notable lack of what we call 
moral sense. They are less susceptible to uplifting 
influences than the average of mankind, and more or 
less incorrigible, but not lacking in intellectual power. 4 
We can not call them at their best level-headed, but 
we do not think of regarding them as irresponsible to 
the laws, unless w*e find superimposed upon them a 
pathological condition. This class mingle with man- 
kind at large everywhere, except while undergoing 
penal servitude. Another class is also mingled with 
the great mass, about which the question of responsi- 
bility is more puzzling. I mean those who have been 
thrown out of balance by actual insanity, but in whom 
the actual pathological condition has subsided, leaving 
mental cicatrices which permanently impair in some 
ways the normal healthful action. The result of the 
morbid state may be such, we will admit, that the 
individual may never after be able to see some existing 
relation in the same light as formerly. An abnormal 
state has permanently supplanted the normal in this 
respect, but in all other respects no apparent departure 
has resulted. We will assume that in some one respect 
he is unsound, and that in any criminal act, upon which 
this abnormity bears, he should be held irresponsible, 
but how should his responsibility be viewed in respect 
to criminal acts having no conceivable connection with 
the recognized permanent crook? Is responsibility 
in the legal sense to be surrendered in everything 
because of a single weak point, always assuming that 
actual pathological action has long since ceased? If a 
modified responsibility is recognized, why should not a 
modified accountability be insisted upon? I am well 
aware that these are hard questions, nevertheless they 
obtrude themselves, and will out, upon a close follow- 
ing of the subject. 
In meeting the question of criminal responsibility in 
the line of personal practical experience, my effort has 
been chiefly to determine in my own mind two points: 
First, is the capacity of the individual equal to the 5 
average of men ? Second, is there evidence of existing 
mental disease ? The social advantages and education 
enjoyed by the individual also come into account in 
their bearing upon the first inquiry, and the existence 
of insanity previously in the individual or his im- 
mediate ancestors, modifies or affects the latter. While 
it is true that an irresponsible state may exist in an 
individual and not be recognized until some act 
indicates it, or a trial clearly develops it, it is also 
doubtless true that the plea of insanity has sometimes 
been urged on slender grounds. Insanity rests on 
uncertain foundation when the family history affords 
the chief basis for its existence, important as the latter 
may be as a factor in the case. To be a defense, 
proper and valid, there should be clearly shown a 
departure from the normal state amounting to a 
delusion bearing upon the act, or such a change of 
character that the power of self-control is lost to that 
degree that ordinary temptations or provocations can 
not be resisted. 
That even in the population of an asylum, sanity 
so far predominates over insanity that such institutions 
are in the main governable by the same regulations as 
apply to the sane, regulations that to be operative 
need to be comprehended and heeded, will, I presume 
not be questioned. What then shall be asserted in 
regard to the insane outside of asylums? Besides the 
regulations governing society, the pains and penalties 
of the law stand out as an additional restraining 
power. As an offset to the latter the multiplied 
temptations to their infraction are to be contended 
with or against. Does the fear of the law super- 
imposed upon social regulations, and applying to all 
who enjoy unrestricted freedom counterbalance those 
temptations and opportunities incident to liberty? 6 
Theory aside, is it not a fact of every-day recognition 
by us, that dangerous states are often modified by mere 
change of associations? Do we not constantly receive 
into our households those who in their home circles 
have become the prey of morbid and dangerous 
impulses, but who in their new relations manifest no 
such tendencies, and indeed by virtue of such change 
become convalescent from the hour of their entry into 
asylums. And again, have we not as often been dis- 
appointed in our anticipations of the effect of a 
removal of patients from asylums, sometimes those of 
most irritable and morbid condition, by friends to 
their homes, when to our surprise steady improvement 
and convalescence have followed? And what are the 
lessons taught us by these facts? Do they or do they 
not help us to answer the query propounded in tbe 
beginning of this paper, whether or not one may be 
insane under some circumstances, and not under others, 
or under all alike? 
In my former paper I referred to the power of 
motives as applied to the government of the insane. I 
would here ask, is not susceptibility to those influences 
that sway mankind in general, one of the proper tests 
of sanity? Certainly we would regard an utter 
absence of such susceptibility as an evidence of 
insanity, and if this proposition be sustained, then may 
we logically inquire whether there are more or less 
aids to responsibility or to responsible conduct, in or 
out of asylums? One of our number (Dr. Godding) 
in discussing the Rights of the Insane, very truly says, 
“It is idle to contend for the rights of a dangerous 
lunatic at large in the community; he has no right 
there.” So it is also useless to discuss the responsi- 
bility of those of positive homicidal or otherwise 
dangerous tendencies. 7 
If impelled by irresistible violent impulses, or active 
delusions, no one conversant with the insane would 
regard them responsible either within or without 
asylums. Society is the responsible party in such 
cases, instead of the individual. I do not argue for 
even a modified responsibility in those laboring under 
active mental disorders whether acute or chronic, but 
that there may, and often does result a permanent 
impairment of mind, and a fixed condition, consistent 
wdth a modified responsibility, I think we may every 
day see if we do not voluntarily shut our eyes against it. 
An individual may pass through a mental storm, 
and come out a survivor, though shorn of some of his 
previous characteristics; he resumes his place in 
society, and is restored to all his civil rights and 
obligations. Nobody questions his word, nor doubts 
his ability to make valid contracts, or to hold positions 
of trust and confidence. 
In his walk as a man and a citizen, no distinction is 
made between him and his neighbors. Why then should 
his responsibility be doubted in the matter of making 
final disposition of his property, for instance? Why 
should the plea of insanity or incompetency be raised 
if some one’s expectations happen to be disappointed? 
or why should he be shielded from legal responsibility 
if he be guilty of some act under the law pronounced 
criminal, if no fresh morbid mental disturbance can 
be shown to have prompted it? 
A case illustrative of modified responsibility, and 
so adjudicated, was published in the Journal of 
Mental Science, January, 1876, and subsequently circu- 
lated as a monograph by Dr. Yellowlees of the Gart- 
navel Asylum, Glasgow, under the caption of “The 
Plea of Insanity in Cases of Murder.” “The Case of 
Tierney ” was that of a laborer in the coal mines, 8 
who killed his fellow-workman, Campbell, in the pit. 
The victim was found dead beneath some stoues. They 
had worked together for months, and were known 
to have sometimes quarreled about the number of 
hutches each filled. After the murder Tierney left the 
pit, and gave to different men who inquired of him why 
he was leaving his work at an unusual hour, different 
answers, some evasive and some contradictory. Arrived 
at the top of the shaft, he left somewhat hurriedly, 
although nothing noticeably peculiar was observed in 
his manner. He did not go directly home, but to the 
home of a neighbor and asked for his wife. Finding 
she was out at work, he then said to the woman of the 
house, “Where shall I hide?” The woman was afraid 
of him as she said “He looked excited, and had the name 
of not being right in his mind.” She asked, “ What is 
wrong,” and understood him to say “I have put the pick 
in Campbell.” Again she inquires, “Was he meddling 
with you?” to which he replies, “Of course.” She 
assisted him to w7hat he desired from his own house, 
and saw him leave. He was apprehended the same 
night, and when charged with the murder, asked, 
“Who saw me do it?” While in prison T)r. Robertson 
of the Glasgow City Parochial Asylum, and Dr. 
Yellowlees, were appointed a commission to examine 
him. They reported that “his manner was peculiar, 
reserved and suspicious, and his replies to questions 
were slow and evasive. He was fully aware that 
he was charged with murder, but denied all knowledge 
of the crime, and appeared quite easy and indifferent 
as to his serious position. His mental peculiarities 
were quite consistent with the occurrence of a 
previous prolonged attack of insanity, with occasional 
subsequent relapses, and were even suggestive of 
it, but they were unable to discover any such 9 
mental aberration or defect as would justify them in 
certifying that the prisoner was insane at the time of 
their examinations.” The prison physician concurred 
with Drs. Robertson and Yellowlees. At the trial it 
was shown that Tierney had been insane sixteen years 
previously, for a lengthened period, after the death of a 
child. His brother-in-law testified that “his insanity 
had been of a dangerous character, that he was in the 
habit of taking his razor to bed with him, and that on one 
occasion he burned all the clothes he could lay his hands 
on.” The same witness also testified that “ for the last 
fourteen years he noticed nothing in the prisoner’s 
conduct except that he was a dull, stupid and unsociable 
man, whereas before this illness, he had been cheerful 
and sociable.” There was no distinct proof of an actual 
mental illness either before or after the attack men- 
tioned sixteen years before the murder. Dr. Yellowlees 
testified that “the peculiarities of temper and disposi- 
tion noted in the prisoner, were the resultants of his 
former insanity.” Dr. Robertson declared the same in 
substance but believed these “consistent with sanity.” I 
infer by this that he meant it in his view not indicative 
of an actual morbid action at this time. The judge in- 
structed the jury that “liability to sudden irritation, 
susceptibility to provocation, sullenness, ill-temper, 
silence, gloom—none of these would establish insanity. 
All these might exist without the deprivation of 
reason—that shattering of the powers of the mind which 
constituted insanity. But if there was a recurrence of 
the disease, depriving the man of the power of controll- 
ing his actions, impelling him irresistibly to commit 
certain actions, that excluded responsibility.” The jury 
promptly found the prisoner “guilty of murder, but 
recommended him to mercy on account of his previous 
insanity.” The final result was commutation to penal 10 
servitude for life. The comments of Dr. Yellowlees 
upon this case seem to me particularly worthy of note. 
He regards the recognition by the jury and by the judge 
of the existence of partial insanity, as a great advance, 
and believes that by this recognition, more exact justice 
may be reached, accepting as the logical result a modi- 
fied responsibility: so that the evil deeds of such a man 
must entail a modified punishment. 
He justly asserts that “the acquittal of every 
criminal in whom any degree of mental defect could 
be discovered, would be both unjust and dangerous, 
and that the common excuse that confinement in an 
asylum would be the same as perpetual imprisonment, 
is not at all sound,” and admits in concluding that “it 
may of course be objected, that no man can accurately 
guage the accountability or self-control of his fellow-men, 
and that to adopt this course would give only an approx- 
imation to justice.” “This,” he adds, “is not perfectly 
true but it is the nearest approximation we can make. 
It recognizes at once what is needful for society, and what 
is just to the individual, by awarding punishment to his 
crime, and extending mercy to his weakness.” The point 
I particularly note in this case is that it hinged wholly 
upon the non-existence of an active morbid state at 
the time of the murder, and of the trial. The judge ruled 
that the prisoner would not have been held responsible, 
had a recurrence of his insanity been shown. 
The principle evolved in this case in its application to 
jurisprudence in general, I infer to be that all persons 
are held responsible to the laws who are not actually 
laboring under mental disease, unless such a degree of 
dementia may have resulted from previous insanity, as 
to render the individual incapable of comprehending his 
relations to society, and the necessity of obedience to 
human laws. Peculiarities of temper, moodiness, in- 11 
creased susceptibility to irritations or stupidity, do not 
stand as evidences of irresponsibility, apart from the 
co-existence of hallucinations or delusions, or morbid 
states of exaltation or depression. 
That very many of the type indicated by the case 
cited are to be found mingled with the sane, in the 
population of our own country as well as in Scotland, 
will hardly be questioned. How then shall we regard 
them? If irresponsible for crime why are they not in 
safe places of confinement? 
A case of somewhat similar features was tried in the 
county court of Worcester, Mass., in 1868. The 
prisoner, one James E. Shepard, was indicted for the 
murder of his wife, which was done in cold blood, 
although they had not lived happily together, and she 
had separated from him and resisted his efforts at 
reconciliation. The defense was insanity, based upon 
the existence of epilepsy in the prisoner, up to the 
time he was sixteen years of age, although in the 
supervening period of some ten years he had been 
free from the malady. The family history showed 
insanity in his maternal grandfather and uncle, 
epilepsy in his mother, and habitual drunkenness in 
his father. The writer, at this time in temporary 
charge of the Worcester Hospital, was asked by the 
prisoner’s counsel to visit the prisoner in the jail, and 
give an opinion as to his mental state and responsibility. 
The opinion given was to the effect that from the fact 
that the prisoner suffered through all the growing 
period of his life from a malady known to impair the 
mind, this was reason to question his sanity, although 
in his present condition there was no evidence of a 
morbid state. 
This view at the trial was concurred in by Dr. Ray, 
but wholly dissented from by Dr. Earle, both of whom 12 
with the writer examined the prisoner in the jail, and 
afterward conferred together upon the case. Dr. Earle 
emphatically declared his belief that the prisoner was 
fully responsible for the murder, his reasons being sub- 
stantially those which were held by Drs. Robertson and 
Yellowlees in the case of Tierney. I thought at the time 
Dr. Earle’s view the wrong one. In the light of the 
present I agree with it. The prisoner’s mind may have 
been in a sense wanting in soundness, but he was not 
insane in that he was laboring under mental disease, as 
we here accept that state to imply. 
At the opening of the defense, the State’s Attorney 
announced his willingness to allow the prisoner to 
retract his plea of “ not guilty” and substitute that 
of “guilty of murder in the second degree.” This prop- 
osition was accepted, and the prisoner was sentenced 
to “imprisonment at hard labor in the State Prison for 
life, with oue day of solitary confinement.” lie was 
not unmoved by the sentence, and quite broke down 
before leaving the court room. 
Fifteen years have elapsed, and the warden of the 
prison writes me, under date of the 18th inst. 
(June, 1883), that “James E. Shepard is still here, and 
in apparently good health, having had so far as I can 
learn, no return of epilepsy during his imprisonment.” 
Clearly there has been nothing yet to show that Dr. 
Earle’s judgment was at fault. If the prisoner had 
been held to strict accountability, it could hardly be 
affirmed that an insane man was executed. Under all 
the circumstances no fault can be reasonably found 
with the result. Penal servitude in this case is more 
just than the confinement of the prisoner in an asylum 
as an irresponsible person for life, or confinement for a 
probationary period, and then restoration to liberty, 
which course has been too often pursued in American 
practice. 13 
In concluding this paper let us once more revert to 
the primary question. What is the responsibility of 
the insane outside of asylums? What do we gather 
from this brief inquiry into the matter? Excluding 
from consideration those whose mental operations are 
undeniably morbid, pathologically so, and confining 
ourselves to those in whom a certain unsoundness, 
either congenital or acquired, is found to exist—the 
outcome of antecedent causes, but permanent and 
fixed—do we assume too much if such are classed 
with the responsible as a rule, and held respons- 
ible to a degree corresponding to their capacity for 
ordinary understanding and self-control ? Ought the 
fact of a somewhat defective mental foundation, and 
the possibility of the development of a morbid state 
upon it, to be allowed as presumptive of irrespons- 
ibility ? 
The defective mental constitution may claim con- 
sideration unquestionably, but is it fair to forecast the 
possible ultimate morbid irruption, and urge it in 
advance as a defense? To my mind the doctrine of 
insane irresponsibility has been carried too far, and has 
led to an increase of crime, and an inconsiderate reckless- 
ness in criminal acts. Had the infamous assassin of 
President Garfield been held irresponsible, and been 
consigned to an asylum instead of expiating his crime, 
I believe the precedent would have been pregnant 
with murderous acts. 
The criminal classes fear the law which condemns to 
death, but laugh at or brave imprisonment. Even 
though the sentence be for life, it is accepted always 
with more or less sanguine expectation of deliver- 
ance. 
In the words of Whittier, the criminal trusts 14 
“ * * That somehow good 
Will be the final goal of ill, 
To pangs of nature, sins of will, 
Defects of doubt, and taints of blood,” 
and be sees not over the prison door which opens to 
receive him, the oft quoted inscription from Dante, and 
abandons not hope as it closes with its ominous 
clang behind him. 
I recognize in all mankind the love of life as ever 
present, ever active. The love of personal liberty is 
hardly second as a boon and blessing, and in the final 
summing up of the queries propounded in this paper, and 
particularly in respect to the influence of circumstances 
and conditions as affecting the responsibility of a 
given individual, I incline to the belief that account- 
ability is greater outside than inside of asylums in 
proportion as the motives acting upon the individual 
are more numerous, more healthful, more sustaining, 
and more inhibitory. 
Recognizing that it is the province of another 
profession than ours to determine responsibility to 
human laws, let us not forget that it belongs to us, as 
conservators of human life, to see to it that no one 
actually laboring under disqualifying mental disease 
suffers unjustly, and on the other hand let us not 
timidly shelter our convictions behind shadows, which 
obscure like the mists of the morning the landmarks 
that constitute our sure and safe guides. THE 
AMERICAN JOURNAL OF INSANITY. 
The American Journal of Insanity is published quarterly, at the 
State Lunatic Asylum, Utica, N. Y. The first number of each volume 
is issued in July. 
Editor, 
JOHN P. GRAY, M. I)., LL. D., Medical Superintendent. 
EDWARD N. BRUSH, M. D., 
G. ALDER BLUMER, M. D., 
ELI E. JOSSELYN, M. D., 
CHARLES W. PILGRIM, M. D., 
Associate Editors, 
Assistan t Physic ian s. 
THEODORE DEECKE, Special Pathologist. 
TERMS OF SUBSCRIPTION, 
Five Dollars per Annum, in Advance. 
Exchanges Books eoe Review, and Business Communications 
may be sent to the Editor, directed as follows: “Journal of 
Insanity, State Lunatic Asylum, Utica, N. Y.” 
The Journal is now in its fortieth volume. It was estab- 
lished by the late Dr. Brigham, the first Supei'intendent of the 
New York State Lunatic Asylum, and after his death edited by Dr. T. 
Romeyn Beck, author of “Beck’s Medical Jurisprudence;” and since 
1854, by Dr. John P. Gray, and the Medical Staff of the Asylum. It is 
the oldest journal devoted especially to Insanity, its Treatment, Juris- 
prudence, &c., and is particularly valuable to the medical and legal 
professions, and to all interested in the subject of Insanity and Phy- 
chological Science.