INSANITY AND THE 
CRIMINAL LAW THE MACMILLAN COMPANY 
NEW YORK • BOSTON • CHICAGO • DALLAS 
ATLANTA • SAN FRANCISCO 
MACMILLAN & CO., Limited 
LONDON • BOMBAY • CALCUTTA 
MELBOURNE 
THE MACMILLAN CO. OF CANADA, Ltd. 
TORONTO INSANITY AND THE 
CRIMINAL LAW 
BY 
WILLIAM A. WHITE, M.D. 
AUTHOR OF “MECHANISMS OF CHARACTER 
formation” ; “the principles 
OF MENTAL hygiene”; ETC. 
iReto $orft 
THE MACMILLAN COMPANY 
1923 
All Bights Reserved POINTED IN THE UNITED STATES OF AMERICA 
Copyright, 1923, 
By THE MACMILLAN COMPANY 
Set up and printed. Published January, 1923, 
Press of 
J. J. Little & Ives Company 
New York, U. S. A. TO MY WIFE PREFACE 
In presenting this little book to the public it 
is with a full realization that it might have been 
made much larger and embodied long technical 
descriptions of legal practices and voluminous 
citations from the literature. The author, how- 
ever, had in mind a presentation of his views as 
briefly and simply stated as was consistent with 
clearness and with enough case material to 
illustrate the vital points. Thus presented the 
book embodies the opinions and conclusions 
which he has come at in his practical work 
as a psychiatrist extending over a period of 
thirty years, the last nineteen of which have 
been spent as the Superintendent of Saint 
Elizabeth’s Hospital, in Washington, D. C., a 
Government Institution of, at present, some 
four thousand beds, and which has a criminal 
department for the care of Federal prisoners 
and prisoners of the Army and Navy who are 
suffering from mental disease. 
In presenting his opinions the author has 
taken for granted that the average intelligent 
reader is sufficiently acquainted with the usual PREFACE 
methods and practices of criminal procedure 
and trial by jury, so that he has omitted detailed 
descriptions of these processes. He has felt 
that the psychiatrist has the sort of experience 
in dealing with the practical social problems of 
human behavior that entitles him to speak with 
some authority, and that makes the results of 
that experience a valuable contribution to the 
problem in hand. He has seen the gradually 
enlarging concept of mental disease slowly 
closing the poor houses and correspondingly 
covering their defective inmates into State 
institutions for mental disease, where they are 
infinitely better and more intelligently cared 
for, and he has seen the out-patient departments 
of these institutions sending skilled social 
workers into the families of former State Hos- 
pital patients and making social adjustments 
that not only prevented recommitment but con- 
duct that we are accustomed to call criminal. 
In these and innumerable other ways modern 
psychiatry has been dealing with its problems 
of human behavior and adjustment while the 
law, with almost the single exception of the 
juvenile courts, has been proceeding in its old, 
accustomed way. It would seem to him, there- 
fore, that the time has arrived for the law to 
take some cognizance of what has been accom- 
plished and this book sets forth his opinions PREFACE 
on how this can be done. The system of 
trial by jury, which is so firmly established as 
a component part of our system of govern- 
ment, does not need to be done away with nor 
yet radically changed; it needs only to go on 
developing to meet the new needs that are 
arising just as does any other constituent part 
of the government machinery. 
Grateful acknowledgment is hereby made to 
Mr. Arthur Hornblow, Jr., of the New York bar, 
for many valuable suggestions in the course of 
the preparation of the manuscript; to Dr. John 
E. Lind, who has charge of the criminal depart- 
ment of Saint Elizabeth’s Hospital, for search- 
ing the records and briefing many of the cases 
presented; to Professor Edwin R. Keedy, of the 
Law Department of the University of Pennsyl- 
vania, for his careful criticisms which are 
embodied in the Addendum; and to The Journal 
of the American Institute of Criminal Law and 
Criminology for its generous and full permis- 
sion to use two of the author’s contributions to 
that journal, viz.: “The Case of Father Johan- 
nis Schmidt,” and “A Prison Psychosis in the 
Making. ’ ’ 
W. A. W. CONTENTS 
CHAPTER PAGE 
I. Introduction 1 
II. Crime 10 
III. The Criminal 23 
IV. The Growing Tendency to Indi- 
vidualize the Criminal ... 30 
V. Expert Testimony 54 
VI. Prejudice 61 
VII. The Hypothetical Question ... 81 
VIII. Responsibility 80 
IX. The Tests of Insanity .... 102 
X. A Chapter of Blunders .... 107 
XI. Legal Suggestions for Betterment 141 
XII. The Principles of Criminology . . 149 
XIII. Further Suggestions 171 
XIV. The Functions of the Criminal 
Law 175 
XV. The Nature of the Law .... 191 
XVI. The Functions of the Medical Ex- 
pert 207 
XVII. The Argument 212 
XVIII. Punishment 218 
XIX. Concluding Comments .... 252 
Addendum—A Criticism .... 266 INSANITY AND THE 
CRIMINAL LAW INSANITY 
AND THE CRIMINAL LAW 
CHAPTER I 
INTRODUCTION 
The object of this book will be to inquire into 
the relations of psychiatry to the administra- 
tion of the criminal law, more especially into 
the problem of expert testimony as it involves 
the mental state of the defendant in criminal 
proceedings. To do this it will be necessary to 
extend the discussion considerably beyond 
these limits in order properly to surround the 
subject and gain that depth of understanding 
which is necessary before a plan of betterment 
can be suggested with any prospect that it will 
prove practical. The origins, meanings, and 
tendencies of the factors involved must be 
known so that such a plan may be constructed 
which will harmonize with them and follow 
along the lines of development and evolution 
which they point. 
Much has been written on this subject, but 
1 2 
INSANITY AND THE CRIMINAL LAW 
the general upshot of it all has been quite unsat- 
isfactory, for although it is widely appreciated 
that present practices leave much to be desired 
there has been very little progress made toward 
practical suggestions for improvement. The 
poverty of results from such wide discussions 
seems, at least in part, to be due to a failure to 
grasp adequately all of the elements involved 
and to give them their proper values. There 
exists a marked discrepancy between the knowl- 
edge of man and his motives to which science 
has attained in recent years, and the concepts 
which have governed legislative bodies which 
have formulated the law and the judges who 
have interpreted it. Movements in many direc- 
tions, however, indicate that the time is perhaps 
ripe for a general survey of the situation and 
the formulation of certain principles, and prac- 
tical suggestions growing out of such a survey 
which will be of value in effecting a new orien- 
tation toward the problems involved. 
In a few words, the situation as it exists to- 
day is as follows: An individual is indicted for 
a criminal offense and brought to trial; a plea 
of irresponsibility because of insanity is en- 
tered and this plea is supported by introducing 
one or more expert witnesses who testify to the 
insanity of the defendant; the prosecution then 
counters by the introduction of medical expert INTRODUCTION 
3 
testimony to prove the contrary. The general 
result of such a procedure is, unless some one 
of the experts is able to dominate the situation, 
that the two groups of alienists offset each 
other’s testimony and, largely because the ex- 
amination and cross-examination results in a 
confusing mass of technical details which the 
jury are unable to evaluate, the jury disregards 
the whole mass of expert evidence. In addition 
to this result, the medical witness is apt to be 
discredited because it is felt that he is a parti- 
san attempting to make delivery of goods which 
have been purchased and paid for. Such a state 
of affairs brings discredit alike to the medical 
and the legal professions: to the former for the 
reasons given, to the latter because of the per- 
petuation of a practice which makes such re- 
sults inevitable. 
This general discrediting of the expert and 
expert evidence has produced some rather 
strange results when viewed in the light of the 
facts. It has been pretty widely assumed that 
insanity was used very frequently as a plea to 
save the criminal when all other means failed, 
and the “insanity dodge” has come into exist- 
ence by popular consent as a symbol of sharp 
practice by unscrupulous attorneys and none 
too honest medical men. I can best express the 
facts by stating, first, that in my personal ex- 4 
INSANITY AND THE CRIMINAL LAW 
perience I have never known a criminal to 
escape conviction on the plea of “insanity” 
where the evidence did not warrant such a ver- 
dict (except in such cases as are mentioned fur- 
ther on in the book and in which the jury 
brought in a verdict of “unsound mind” for the 
specific purpose of exonerating a defendant who 
was obviously technically guilty. The jury in 
such cases is not fooled but intentionally make 
use of a plea in order to permit a defendant to 
escape the consequences of his act, finding them- 
selves in sympathy either with the act as such or 
with the defendant who committed it because of 
the peculiar circumstances of the situation). 
Second: It is not the experience of those who 
have charge of institutions for the criminal in- 
sane to find that patients are sent to them from 
the courts who have been found “not guilty” 
because of “insanity” but who are in fact not 
suffering from mental disease. I have never 
personally known of such a case in a quite ex- 
tensive experience and my experience has been 
the same as others. Thirdly: Upwards of fifty 
per cent of the criminals who are convicted and 
sent to prison are, upon arrival, suffering from 
some form of mental deficiency or psychosis 1 
1 Of 608 adult prisoners studied by psychiatric methods in 
an uninterrupted series of 683 admissions to Sing Sing prison, 
66.8 per cent, had shown throughout life a tendency to behave 
in a manner at variance with the behavior of the average INTRODUCTION 
5 
which is obvious as a result of any well estab- 
lished and accepted method of examination. In 
other words, the error is in exactly the opposite 
direction from that popularly supposed. Not 
only do no criminals get off by the “ insanity 
dodge” but over fifty per cent of those who are 
convicted are suffering from mental disease or 
deficiency. 
The extent to which a jury will go in disre- 
garding expert evidence and the ease with 
which they may be influenced, under favorable 
circumstances, in rendering a verdict is well 
shown by the following case. 
Case I. A retired sergeant who became 
paranoid and was sent to St. Elizabeth’s Hos- 
pital. A hearing was held to appoint a com- 
mittee; all medical testimony was to the effect 
that he was of unsound mind, but the jury 
normal person, and the deviation from normal behavior had 
repeatedly manifested itself in criminal actions. 
Of this series of 608 cases 59 per cent, were classifiable in 
terms of deviation from average normal mental health; 28.1 
per cent, were intellectually defective, possessing an intelligence 
equivalent to that of the average American child of twelve 
years or under; 18.9 per cent, were constitutionally inferior or 
psychopathic, to so pronounced a degree as to have rendered 
extremely difficult, if not impossible, adaptation to the ordi- 
nary requirements of life in modern society; and 12 per cent, 
were found to be suffering from distinct mental diseases or 
deterioration, in a considerable number of which the mental 
disease was directly or indirectly responsible for the anti- 
social activities. (Glueck, Bernard: “A Study of 608 Ad- 
missions to Sing Sing Prison,” Mental Hygiene, Vol. II, No. 
1, January, 1918, and “Concerning Prisoners,” Mental Hygiene, 
Vol. II, No. 2, April, 1918.) 6 
INSANITY AND THE CRIMINAL LAW 
thought otherwise. Having been informed by 
legal authority that the hospital could not de- 
tain a patient after such an adjudication he was 
discharged and shortly afterwards shot one of 
his imaginary persecutors. 
This patient was a forty-nine year old white 
male, who had had a long and honorable career 
in the army, reaching the grade of Sergeant. 
During the latter years of his military career 
he became more and more eccentric and was 
thought by many of his associates to have 
mental trouble. He began to accuse his wife 
of infidelity and gave the most absurd reasons 
for his suspicions. He was finally placed in 
Walter Reed Hospital where a diagnosis of 
paranoid state was made and he was trans- 
ferred to St. Elizabeth’s. Here he gave expres- 
sion to his paranoid ideas which were mostly 
delusions of infidelity and also included ideas 
that people were against him. He thought they 
put dope in his food and were otherwise con- 
spiring against him. After being in the hos- 
pital for some months it was found necessary 
to do something about his funds as his wife 
needed money and he was incapacitated for 
helping her financially even had he been willing 
to do so. He was therefore brought before a 
jury in the District Supreme Court to have him 
declared of unsound mind so that a lawyer INTRODUCTION 
7 
could be appointed his guardian, who would 
handle his funds for him and see that his wife 
received money for her support. Four physi- 
cians testified that they had examined him and 
found him of unsound mind and stated at length 
the nature of his disease and the course of his 
delusional ideas. The patient himself took the 
stand and was shrewd enough to deny all his 
delusions, saying that he had formerly thought 
these things, but did not do so now. The jury 
then returned a verdict of sound mind. Theo- 
retically this only applied to his competency in 
money matters, but the hospital was advised 
by legal authority that it would be illegal to 
hold a patient when a jury in court had found 
him of sound mind and he was therefore dis- 
charged. After this, while going along a 
crowded city street, the patient identified some 
passerby as one of his enemies and shot him 
through the back. He was arrested and in- 
dicted for assault with a deadly weapon, but 
was not tried as, of course, the District alienist 
sent him back to St. Elizabeth’s Hospital, where 
he still is. 
What is the explanation of this distortion of 
the facts? My interpretation is this. Expert 
evidence has fallen into disrepute, and is sup- 
posed to be dishonest or prejudiced for the rea- 
sons already given. Now inasmuch as the “in- 8 
INSANITY AND THE CRIMINAL LAW 
sanity dodge’’ as a means of escape from the 
legal consequences of crime is such a result as 
would naturally flow from such a dishonest situ- 
ation, because of the original assumption of 
dishonesty, because the public are naturally 
arrayed against the criminal and want to see 
him punished, because the expert evidence is 
largely unintelligible, and because the expert is 
treated as if he were a partisan, without dig- 
nity, and cross-examined as if he were biased 
and for the purpose of discrediting him, it is 
therefore for all of these reasons that the popu- 
lar idea of the “insanity dodge” has been able 
to assert itself and hold the field. The reason 
that the popular idea is so absolutely wrong is 
that expert evidence is, as a matter of fact, 
essentially and fundamentally honest. The 
facts demonstrate this fundamental honesty 
because they are just exactly the opposite of 
what would be expected to flow from a dishonest 
situation and precisely what would be expected 
if the situation were an honest one. 
In order that this situation may be intelli- 
gently comprehended, it is necessary to know 
something of how it came about and the function 
which it is conceived to fulfill. This involves 
certain historical and sociological considera- 
tions. In order that it may be constructively 
criticized with a view to practical suggestions INTRODUCTION 
9 
of betterment, it is necessary to inquire into 
the human motives which lie back of it and 
which furnish the drive that maintains it. This 
latter question will have much light thrown 
upon it if it is considered from the point of view 
of present-day psychology which has so much 
to say respecting motives and which teaches 
that it is necessary to go back of the obvious, to 
search beneath the surface if the real motives 
of conduct are to be disclosed. By studying 
the present situation, not as the terminal stage 
of a series of chronologically related events, 
each one of wdiich was in turn only an end 
result of conflicting motives, but as a manifes- 
tation of certain underlying motives which have 
come to different forms of expression in the 
course of historical development, it may be 
possible to determine the tendencies that are 
operative, for any effort to improve on existing 
conditions will succeed only to the degree in 
which it allies itself with the general direction 
in which development is taking place and so 
makes available the energies of the motives that 
are bringing it about. CHAPTER II 
CRIME 
From the very earliest times there must have 
been conflicts between the interests of the indi- 
vidual and of the group. Man is a social ani- 
mal, hut those very qualities that enable him to 
live in association and cooperation with his fel- 
lows must of necessity come into conflict with 
his individual interests because cooperation 
implies a certain renunciation of independence. 
The natural tendency must have been, originally 
as it is now, to avenge personal injuries directly 
by attacking the offender, be that offender a 
person, a group, an inanimate object, or a spirit. 
Experience finally demonstrated that this direct 
action was contrary to the best interests of the 
group. The individual members of the group, 
if their instincts were not subjected to some 
kind of control and restraint, would, by destroy- 
ing each other, destroy the group. 
The natural tendency of man, quite like other 
animals, has always been to avenge personal 
injuries by direct action, to attack his enemy 
and destroy him. This law of private ven- 
10 CRIME 
11 
geance, an eye for an eye, a tooth for a tooth, 
a life for a life, the so-called lex talionis, ex- 
presses man’s innate primitive way of reacting 
to injury resulting from the acts of others. In 
fact, in his early career, in the animistic period 
of his development when he personified every- 
thing about him, he responded in this way not 
only to injuries inflicted by his fellows but to 
injuries inflicted by animals and even by inani- 
mate objects. The well known trials, condem- 
nations and executions of animals in the Middle 
Ages are illustrative of the former, while in the 
annals of the law can be found many instances 
of the destruction of inanimate objects which 
have been the cause of injuries to persons, for 
example, the trial and condemnation of a cart 
wheel for having run over a man. 
Not to dwell upon these early practices, the 
custom in more primitive social groups was to 
resort to private vengeance for wrongs suf- 
fered. It would naturally occur as a rule that 
such vengeance would be exercised against the 
individual from whom the wrong had been suf- 
fered, but there is some evidence to the effect 
that this was not always a necessary method 
of procedure but that when wrong was inflicted 
punishment often followed which in the absence 
of the actual culprit was inflicted upon some 
other convenient person, as if the necessity for 12 
INSANITY AND THE CRIMINAL LAW 
vengeance had to be satisfied irrespective of 
whether the punishment were inflicted upon the 
guilty person or some one else.1 That this is 
the explanation would seem to be indicated by 
what is known of human psychology which real- 
izes that a feeling of having been wronged 
tends to express itself in retaliation and that 
such a reaction upon a vicarious object would 
afford relief for such feelings, although perhaps 
not so completely as if the actual offender were 
the object. This explanation is still further 
rendered probable by the fact that early forms 
of punishment tended to be extremely harsh 
and cruel, thus giving vent to the pent-up emo- 
tion of vengeance; and also by the fact that in 
feuds between families punishment is not di- 
rected necessarily against the offending indi- 
vidual but against the family, a murder in one 
family being revenged by the murder of a 
member of the other family. 
There is a more profound significance to the 
necessity for emotional expression than just to 
satisfy the spirit of revenge and retaliation. 
Man is always trying to get rid of what makes 
him unhappy, and if this is sin, that is, a wrong 
1 Kaplan refers to an ancient law that bids the hanging of 
the thief first, his trial coming afterward. See Kaplan, Leo: 
“The Tragic Hero and the Criminal,” Imago, Yol. IV, Nos. 
2 and 3, abstracted in the Psychoanalytic Review, Vol. VIII, 
No. 3, July, 1921, CRIME 
13 
in the sense of the mores (the ethical standards 
of the herd), he tries to escape his personal 
responsibility for it. The criminal, because of 
his relatively infantile and primitive antisocial 
conduct tends to stir similar tendencies in the 
herd which are under severe repression in the 
service of civilization and culture. In punish- 
ing the criminal, therefore, he is not only trying 
to get rid of sin in the abstract, that is his 
rationalization for his action, but he is trying 
to get rid of that sin which he feels is resident 
within himself. The criminal thus becomes the 
handy scapegoat upon which he can transfer 
his feeling of his own tendency to sinfulness and 
thus by punishing the criminal he deludes him- 
self into a feeling of righteous indignation, thus 
bolstering up his own self-respect and serving 
in this roundabout way, both to restrain himself 
from like indulgences and to keep himself upon 
the path of cultural progress.2 Kaplan says 
that the legal punishment of the criminal to-day 
is, in its psychology, a dramatic tragic action 
by which society pushes off its criminal im- 
pulses upon a substitute. The principle is the 
same as that by which an emotion such as anger 
2 See my discussion of the criminal as scapegoat in 1 ‘ The 
Principles of Mental Hygiene” (published by The Macmillan 
Company, New York, 1917). See also Frazer, J. G.: ‘‘The 
Scapegoat, ’ ’ which is Part VI of ‘ ‘ The Golden Bough, A 
Study in Magic and Religion” (published by The Macmillan 
Co., London). 14 
INSANITY AND THE CRIMINAL LAW 
is discharged upon an inoffensive lifeless 
object. 
It is from such crude beginnings that the 
present-day concepts of crime, criminals and 
criminal law have emerged. Without going into 
the details of proof, it can be safely stated as a 
fact, attested by numerous writers on criminol- 
ogy, that those acts were considered criminal 
which offended custom, that is, popular usages 
and traditions, or as they have been called, the 
mores or folkways. These customs or mores 
were the result of social growth and evolution. 
So that crime offended not only the individual 
but the group and the course of the development 
of criminal procedure shows a growing recog- 
nition of this fact and the gradual taking over 
by the State of the functions of trial and pun- 
ishment with the corresponding development 
of a specialized group trained in these matters 
and skilled in the practical applications. 
Not only is the development of a highly 
evolved and intricate society rendered impos- 
sible by this persistence of practices of private 
vengeance but it is practically advantageous 
and logically consistent for the herd, group, or 
State, as it is more frequently called, to take 
cognizance of offenses against it and develop a 
machinery for dealing with them. 
Vengeance, therefore, seems to be the original CRIME 
15 
motive for what is now termed justice.3 The 
questions are: How is this original motive 
transformed? How is it sublimated? and What 
are the motives which produce this transforma- 
tion and sublimation? 
Before undertaking to answer these ques- 
tions, it can be safely assumed that the forces 
which energize human conduct, on the whole, 
tend to raise that conduct to ever higher stages 
of cultural development which is, after all, only 
another way of saying that man, like all other 
animals, is on the path of development and 
evolution gradually and progressively, although 
slowly coming to a better adjustment of his 
inner needs with the outer facts of reality. To 
be sure, this general direction is subject here 
and there to deflections and regressions. He 
occasionally loses his way or backslides to lower 
levels but the general direction is nevertheless 
forward and upward. Starting with this as- 
sumption, an answer to the questions may be 
attempted. 
■Vengeance is, of course, the result of a complex emotional 
state. It has perhaps two main roots, the first in sexuality, 
there being a certain erotic form of pleasure in inflicting pain 
(Sadism) ; the second in the ego-instinct, injuring some one 
else giving a feeling of power and so tending to overcome a 
feeling of inferiority. The former factor explains many of 
the severe and cruel forms of punishment and certain types 
of cruel individuals; the second explains the extreme cruelty 
of certain despots or persons who occupy positions of great 
power but who are essentially cowards. 16 
INSANITY AND THE CRIMINAL LAW 
In the first place, vengeance is exercised 
against those who offend custom, who trans- 
gress tradition, who attack the constituted 
order of things and those who tend by their 
conduct to break down the structure of society. 
Inasmuch as the structure of society at any 
particular moment is the result of the growth 
and development which has been attained up to 
that moment, supported and stabilized by be- 
liefs, customs, traditions, any act which tends 
to tear down this structure is not only socially 
destructive but is in opposition to those laws 
of progress which have served to bring it about. 
Vengeance,4 therefore, is directed against all 
such destructive tendencies and, therefore, 
when organized in the criminal laws and courts 
and their various adjuncts, coupled with the 
emotions that bring it into being, is calculated 
to conserve and stabilize the progress that has 
been attained. 
Vengeance, however, is negative in its opera- 
tions. It tends only to prevent disintegration 
by destroying the disintegrating factors. It 
4 Of course it is to be understood that vengeance is ordi- 
narily not consciously present in dealing with criminals, though 
it is the original source of the energy that is used in this way. 
Criminals are not now made to suffer solely to satisfy ven- 
geance but to punish them for their misdeeds so as to dis- 
courage them from repeating them and to serve as an example 
to others. Punishment is both a sublimated form of vengeance 
and a rationalization which permits it. In any case it is a 
higher and more constructive and useful concept. CRIME 
takes no account of the possibility of utilizing 
the forces locked up in these inimical tendencies 
for constructive ends, it makes no effort to 
divert these forces into channels of usefulness 
and creativeness. In the early stages of society 
necessity makes no demand for such utilization 
of destructive forces, the whole process of ven- 
geance is one of almost pure wastefulness. In 
the whole process of the administration of the 
criminal law, human life and property are lav- 
ishly sacrificed to the main purpose. The anal- 
ogy to the waste products of manufacture sug- 
gests itself. In the early stages of manufacture 
there is enormous waste but as competition 
enters more and more largely into the field 
each manufacturer is put to it to look about 
keenly for ways to make his business more 
profitable and one of the ways that suggests 
itself is the utilization of the waste products, 
the making available for commercial purposes 
all of the by-products which up until then had 
been thrown away as useless in the fabrication 
of the particular material for which the plant 
was constructed. In the same way in the ad- 
ministration of the criminal law, when it came 
about that police forces, courts, prisons had td 
be maintained at an enormous cost which was 
coming to be a great financial burden then 
necessity suggested a more economical way of 18 
INSANITY AND THE CRIMINAL LAW 
procedure which would utilize the by-products 
of this great system and turn the forces being 
wasted to socially useful ends.5 The whole 
problem is one of the more efficient utilization 
of energy distribution.6 
Crime, therefore, primarily is something 
which is conceived of as detrimental to society 
and punitive measures are conceived of as cal- 
culated to repress criminal tendencies and thus 
protect society from their destructive influ- 
ences. This concept of crime and punishment, 
however, is a highly evolved one and might be 
said to have come into existence only after the 
fact. The fact is that those acts are considered 
as crimes which are contrary to certain moral 
standards, customs and traditions but these 
standards, customs and traditions have come 
into existence in the evolution of society and 
are just such as are calculated to maintain the 
structure of the social group. Further, inas- 
much as most crimes are specifically injurious 
to some individual or group of individuals there 
is a large element of personal antipathy to such 
acts and then punishment permits the expres- 
8 The motive is, of course, by no means, only an economic one. 
One important motive is the result of sympathy which causes 
suffering at the sight of large numbers of criminals thrust into 
an abnormal and hopeless environment (prison). 
e The discussion of the so-called evolutive crimes has been 
purposely omitted. These are offenses against the established 
order of things but because they work out practically along 
beneficent lines are seen ultimately to be in the line of progress. CRIME 
19 
sion of personal vengeance. And finally this 
element of personal antipathy and desire for 
vengeance is the expression of hate directed 
against just those acts which are conceived as 
criminal but for the doing of which, on the 
other hand, there exists in each individual a 
certain ill-defined, mostly unconscious tendency, 
and therefore the stimulus to the antipathic 
emotions is calculated to keep each individual, 
in his conduct, in line with the interests of the 
herd. 
This suggestion of an innate desire to be 
criminal, as it may be called, will, in most minds, 
raise at once a feeling of protest. It need not, 
however. The only significance of such a sug- 
gestion is that direct action such as the wreak- 
ing of personal vengeance or the taking of 
another’s property are but expressions of those 
simpler methods of adjustment which the whole 
development of society has been calculated to 
repress in favor of actions which are more 
valuable to it as an increasingly complex or- 
ganization and which man has to progressively 
renounce in favor of the organized group, the 
integrity of which is of such great value to him 
as an individual. Man has learned, imperfectly, 
to put off the immediate satisfaction of desire 
in order to compass a great, though a more 
remote, good. It is, however, just those mem- 20 
INSANITY AND THE CRIMINAL LAW 
bers of the group who are of defective develop- 
ment or who through illness or otherwise have 
had their capacity for the more difficult require- 
ments of the complex social group more or less 
impaired who tend to lapse to these more primi- 
tive, simpler, direct ways of reacting which, be- 
cause they are to the disadvantage of society 
and tend to the disruption of the bonds which 
hold it together as a functioning unity, are re- 
garded as criminal and as calling for punitive 
measures. This is only conformity to the gen- 
eral rule that every difficulty in the path of 
progress that is not overcome tends to result 
in forms of conduct that are simpler and make 
use of methods that were successful at some 
time in the past history of cultural develop- 
ment. Just as the thwarted individual solves 
his difficulties in his daydreams by simple 
and childlike means, killing his enemy, res- 
cuing his heroine, acquiring vast sums of money 
by a lucky coup, so the criminal undertakes in 
equally childlike and naive ways to succeed in a 
society which has long since put the ban upon 
such infantile types of conduct. 
From this consideration it is easy to see that 
criminal conduct is such conduct as is calcu- 
lated to be destructive to society and is recog- 
nized as criminal because it goes counter to 
those customs which have come into existence CRIME 
21 
for the express purpose of maintaining it. For 
example, all those customs, backed up and made 
operative by the emotional attitudes which de- 
termine belief in the principle they represent, 
which make for the safety of life and property 
are essential for that orderly existence which 
makes possible the growth and development of 
a highly complex social group. On the other 
hand, such a highly complex social group is 
essential as a milieu in and through which the 
highly evolved, complex individual can gain an 
adequate expression of his many-sided possi- 
bilities. Thus the individual and society are 
mutually complementary, equally necessary 
each to the other and in their parallel evolution 
each contributes to the growth of the other 
while at the same time making certain neces- 
sary concessions. The individual has to re- 
nounce to a certain extent his freedom of indi- 
vidual initiative in order that a society may 
grow up which will make possible for him a 
greater freedom; and society has to guarantee 
to the individual the greatest possible measure 
of individual freedom in order that it may 
attain its highest perfection by developing all 
of its tendencies to the utmost, tendencies again 
which for their fullest expression are dependent 
upon the completest development of its con- 
stituent individuals. 22 
INSANITY AND THE CRIMINAL LAW 
Sociologically, therefore, criminal conduct is 
an abstract term applicable to socially destruc- 
tive tendencies manifested either by individuals 
or by groups of individuals such as organized 
bands of thieves and assassins or by, in this 
day and age, corporations. Criminal law is 
calculated to antagonize these tendencies and to 
express in its operation what in its primitive 
roots was the spirit of retaliation and ven- 
geance. CHAPTER III 
THE CRIMINAL 
If the last chapter contains a fair statement 
of the nature of criminal conduct from the 
sociological point of view, what can be said of 
the criminal? Is the concept criminal definable 
in the sense that the individual who is guilty of 
criminal conduct belongs to a sufficiently defi- 
nite type to permit of reasonably accurate de- 
scription? The answer to this question must 
obviously be a negative one. The whole concept 
of crime has grown up from the point of view of 
the social group and the criminal law under- 
takes only to define those acts which shall be 
considered as criminal. Any one found guilty 
of those acts becomes by definition a criminal. 
Stated in this way, it would seem quite obvious 
from a survey of the multiplicity of criminal 
acts that it would be impossible to reason from 
them to the nature of the person committing 
them. There has, however, been a well defined 
belief in the past which largely dominates the 
thoughts of the present, that the criminal is a 
special type of individual capable of as accurate 
23 24 
INSANITY AND THE CRIMINAL LAW 
description as a species, or a form of mental 
disease. In fact, it has already been intimated 
that criminal conduct is a form of conduct 
which is essentially more primitive in character 
than so-called normal conduct, and it might, 
therefore, be supposed that the criminal would 
necessarily be a more primitive type of man 
and as such definable within reasonable limits. 
Many attempts have actually been made in this 
direction, notably by Lombroso and the Italian 
School of Criminology and more recently by 
the English criminologist Goring. These at- 
tempts have been in the main based upon statis- 
tical researches. A group of convicts con- 
victed of the same offense, say theft, are studied 
and from a statistical survey of their qualities, 
anatomical, physiological, psychological, a hy- 
pothetical abstraction has been formulated as a 
type. Unfortunately, however, all such studies 
have been made from an altogether too narrow, 
formal point of view and their results are of 
little value. Measurements of the individuals 
of any arbitrarily chosen group may be accu- 
mulated but that does not mean that the aver- 
aged result of such measurements has any real 
existence; it is but an intellectual abstraction. 
An average may be struck from the sum of the 
weight of lead and the weight of feathers but 
the result is only so many figures; it has no real THE CRIMINAL 
25 
existence. We get no more information about 
the characteristics we might expect to find in 
an individual criminal from such a procedure 
than we would get about an individual police- 
man from the averages resulting from a similar 
group study. 
While it is in general true that criminal con- 
duct is relatively more primitive in type, that 
statement does not necessarily disclose any- 
thing of the type of individual who may have 
reacted in that particular way at some particu- 
lar time. An unprejudiced survey of a group 
of criminals, all convicted of the same statutory 
offense, will show quite the contrary. The im- 
mediate situation back of the criminal act of 
stealing may in one case be poverty; in another 
a kleptomaniacal obsession (neurosis); in 
another the disintegration of the personality 
wrought by alcohol (alcoholism) or syphilis 
(paresis); in another it may be the expression 
of a maniacal lack of restraint (mania-depres- 
sive psychosis); in another the failure of devel- 
opment of the social instincts (mental defective- 
ness) ; while in another it may be due to lack of 
education and the influence of dominating and 
evilly disposed associates; conditions which are 
as widely different as can easily be imagined 
but which all issue in an act capable of the same 
statutory description. Some of these individuals 26 
INSANITY AND THE CRIMINAL LAW 
may be highly endowed, such as the neurotic, 
others fundamentally defective; in some the act 
may be the expression of a well defined person- 
ality make-up (the moron), while in others it is 
the expression of a well defined mental disease 
(mania); in some the disease may be chronic 
and incurable (paresis), in others essentially 
transient and recoverable (mania); in some, 
treatment may remove the difficulty (the neu- 
roses), in others, treatment may be of no avail 
(paresis). All of these conditions, therefore, 
and not only mental defectiveness, are of a 
nature to make difficult or impossible those re- 
actions demanded by a highly complex society 
and, therefore, tend to unloose simpler ways of 
reacting which may be criminal. The possibili- 
ties are infinite but as they unfold the definite- 
ness of the conventional and formal concept of 
the criminal recedes further and further into 
the background until finally it is no longer in 
the field of vision at all. 
From the psychiatric point of view, there- 
fore, the criminal as such has ceased to exist 
and in his place are the individual offenders of 
the criminal law, each one of whom must be 
studied in order that he may be understood and 
the motives which prompted his conduct dis- 
closed as expressions of the interaction between 
his peculiar personality make-up and the actual THE CRIMINAL 
27 
problems with which, at the time, it was con- 
fronted. Such an approach is no longer content 
with the simplistic formula of crime and pun- 
ishment, it does not blind itself at the start by 
such formulations as sin or degeneracy or crim- 
inal make-up, or antisocial instincts, but at- 
tempts to get at the dynamic factors involved 
and understand how they produced the result. 
It is dominated by a belief in psychological 
determinism, in other words, by the belief that 
in the psychological sphere, as well as in the 
purely physical, whatever takes place can be 
explained by what went before and out of which 
it developed. Individuals do not just arbitrar- 
ily will to act thus and so, but back of such a 
final determination lie certain discoverable 
motives which are expressions of their person- 
ality make-up, which in turn has had its growth 
and development conditioned from the begin- 
ning by innumerable factors, the main ones of 
which can be determined and given their place 
in the scheme. 
This conviction of determinism in the psycho- 
logical sphere has been come at by years of 
patient effort directed to an understanding of 
the symptoms of mental disorder, and has over 
and over again been justified by the results. It 
is but natural that it should create a great deal 
of antagonism, because it robs man of that feel- 28 
INSANITY AND THE CRIMINAL LAW 
ing of self-determination which he has so fondly 
cherished through the ages and which is but one 
aspect of his belief in his unique position and 
supreme importance in the whole scheme of 
nature. It remains as a more subtle manifesta- 
tion of the same feeling that found cruder ex- 
pression in the belief in the Middle Ages that 
the earth was the center of the universe and all 
things revolved about man as the most finished 
and highly developed of God’s creations. It is 
but another aspect of that anthropocentric the- 
ory of the universe which, with each advance in 
knowledge, has to be reckoned with. It was the 
basis of the profound prejudice against the 
demonstration that the sun did not revolve 
about the earth but that the earth revolved 
about the sun; it was the basis of the prejudice 
against the dissection of the human body for 
the purpose of discovering the secrets of its 
structure; and it is the basis of the prejudice 
against the analysis of human conduct for the 
purpose of discovering the motives which lie 
back of it and explain it. Man feels himself to 
be the center of things as he also feels himself 
to be immortal and he does not take kindly to 
having these feelings disturbed. 
While a great deal has been accomplished in 
psychological analysis, it is to be expected that 
the involved problems that have to do with THE CRIMINAL 
29 
man’s more complex social relations would re- 
sist longest the application of these methods 
and that the complicated machinery of the insti- 
tutions that have grown up in this region would 
longest resist any material modification as a 
result of the new knowledge. Nevertheless, 
there are already signs that something is being 
accomplished. The creation of juvenile courts, 
domestic relations courts, night courts, the utili- 
zation of psychiatrists, psychologists, and in 
some cases scientific institutions in connection 
with courts, more particularly juvenile courts, 
to furnish additional information for the 
guidance of the court, all indicate, as do many 
other things also, that there is a growing feel- 
ing of the inadequacy of the legal machinery as 
ordinarily constructed to meet the new demands 
that are being made upon it and a tendency for 
the development of new mechanisms to better 
respond to these demands. CHAPTER IV 
THE GROWING TENDENCY TO INDIVIDUAL- 
IZE THE CRIMINAL 
In the previous chapter it was indicated how 
the concepts of crime and criminal have grown 
out of the necessities of man as a social animal. 
Crime is a term applied to conduct which is 
destructive of the bonds which unite men in 
social groups and the criminal is one who com- 
mits such acts. In other words, the concepts 
have grown out of a consideration of acts rather 
than a consideration of the actors. The short- 
comings of this way of looking at the criminal 
were also indicated in the discussion of psycho- 
logical determinism, and it was further indi- 
cated how such a method of approach was not at 
all calculated to uncover any real explanation 
of specific criminal acts as committed by any 
particular criminal. It is now proposed to dis- 
cuss the growing tendency to a consideration 
of the criminal as an individual, some of the 
reasons why this tendency has come into opera- 
tion, and what may be expected as a result of it. 
The objects of punishment,1 at least its 
1 Punishment is a sublimation of the vengeance motive. 
30 TENDENCY TO INDIVIDUALIZE 
31 
avowed objects, are to eliminate from the social 
group the antisocial units, either by death or 
incarceration, and, by making the results of 
criminal practices intensely disagreeable, so 
discourage those inclined to them that they will 
desist from their commission. In other words, 
the object is to protect society from the destruc- 
tive influences of criminal acts by either de- 
stroying the criminal or rendering him impotent 
for harm. 
Unfortunately experience has shown that 
crime cannot be eliminated in this way. Even 
the most severe forms of punishment fail to 
produce this result. The degree to which crime 
has been eliminated from a community seems 
to be entirely incommensurate with the amount 
of energy expended to this end. Punishment as 
such, as a means of protecting society from 
criminal acts, has been largely a failure. There 
are many reasons for this. One of the most 
frequently advanced is the uncertainty of its 
application, the fact that the criminal has a fair 
chance to escape the legal consequences of his 
act in any particular case. This is well shown 
in the statistics of homicide. Putting the most 
liberal construction on the figures, only one 
murderer out of thirty-five or forty is executed 
for his crime.2 The real reasons, however, go 
2 According to the statistics of Mr. George P. Upton, of the 
Chicago Tribune, 697 persons were legally executed in this 32 
INSANITY AND THE CRIMINAL LAW 
very much deeper, and are only discoverable as 
the result of intensive studies of individual 
criminals which disclose the psychological 
mechanisms which led up to and resulted in the 
criminal act. As soon as this is done, it is ap- 
preciated that criminal acts, quite like any other 
acts, are traceable to underlying tendencies 
which operate as efficient causes from the stand- 
point of determinism and that they grow out of 
and result from such tendencies in accordance 
with definable psychological laws with a rigid, 
logical necessity. From the standpoint of the 
individual, the way to account for criminal con- 
duct is precisely the way to account for any sort 
of conduct, and conduct is the result of the per- 
sonality make-up of the individual acting upon 
the problem with which it is presented. No un- 
derstanding of any kind of conduct, therefore, 
country in the seven-year period 1911-17, an average of 100 
persons annually. Figuring the number of homicides (based 
on the TL S. Mortality statistics) at 7 per 100,000 inhabitants, 
and taking the population in that year as 100,000,000, there 
must have been about 7000 homicides in the United States in 
1917. That means that one man in 80 who commits a homicide 
is executed. Taking the five-year average of 100 executions 
annually, it means that for about every 70 homicides one per- 
son is executed. If Mr. Upton’s homicide statistics are taken 
as a basis, it would appear that there is only one execution 
for every 75 homicides. (In 1904, according to the Tribune 
figures, there were 8482 homicides and 112 executions.) As- 
suming that one half the homicides are deliberate murders 
even then there is only one execution to every 35 or 40 homi- 
cides. (Bye, Raymond T.: “Capital Punishment in the 
United States,” published by the Committee on Philanthropic 
Labor of Philadelphia, 1919.) TENDENCY TO INDIVIDUALIZE 
33 
can be reached except through an understand- 
ing of the individual. To consider an act out 
of its individual setting, the actor, is to consider 
a pure metaphysical abstraction. 
The following case shows that mere consid- 
eration of an act as such led to a conviction 
for a crime which subsequent observation 
showed was in reality symptomatic of mental 
disease. 
Case II. A young soldier boy convicted of 
a sexual perversion was finally sent to Saint 
Elizabeth’s Hospital. A study of his case 
showed him to have been clearly suffering from 
mental disease for years. He lapsed into a 
Mate of chronic deterioration. 
This was a white soldier who, when admitted 
to Saint Elizabeth’s Hospital in 1918, was only 
twenty years of age. He had been sentenced to 
five years in prison for sexual perversion, espe- 
cially sodomy. It appears that he was intimate 
with a much older soldier, who managed to 
throw the whole blame on the patient. In look- 
ing over his past life it was found that he knew 
nothing of his parents and was reared in an 
orphan asylum. At the age of fourteen he was 
taken from the asylum by a farmer, who at the 
end of a year and a half returned him, not 
getting what he considered an adequate amount 
of work out of him. Shortly after this he was 34 
INSANITY AND THE CRIMINAL LAW 
taken out by another farmer, who found him 
practising sexual perversions of uncertain na- 
ture and had him sent to a reformatory. Upon 
release from the reformatory he enlisted in the 
Army, being at that time about eighteen. He 
was in the Army less than a year when he was 
court-martialed. His defense seems to have 
been a perfunctory one and conviction and sen- 
tence followed quickly. At the prison he got 
into numerous difficulties, principally for loafing 
and working inefficiently. After repeated ef- 
forts at discipline he was finally sent to Saint 
Elizabeth’s Hospital. When examined there 
he was found somewhat apathetic, told of the 
offense for which he had been sentenced but 
showed little affect. He admitted that he had 
been guilty all his life of various sexual per- 
versions and seemed to have no ethical concepts 
about them whatever. His attitude was child- 
ish, good-natured for the most part but occa- 
sionally somewhat sullen. His mental age, ac- 
cording to the standard intelligence tests, was 
about nine years. He readily fell into hospital 
routine. With very urgent persuasion he could 
be gotten to clean up his room every morning, 
but would not interest himself in any other 
occupation. He associated by choice with the 
lowest class of patients and indulged freely in 
perversions, showing no shame when detected. TENDENCY TO INDIVIDUALIZE 
35 
After the expiration of his sentence he was 
transferred from the criminal department to 
another department of the hospital. At the 
present writing (1922) it has been five years 
since he was sentenced, four of which have been 
spent in this hospital and one in prison. This 
is the full extent of his sentence, without any 
good time allowance, and as he does not differ 
perceptibly from the average chronic dementia 
precox patient it is probable that he will have 
to spend his life in Saint Elizabeth’s or a simi- 
lar institution. 
When the individual is studied and his mo- 
tives are understood, then only does it become 
possible to understand why the various punitive 
measures which have been put in operation 
against criminal acts have failed to influence 
him. While it is true that society is primarily 
interested in protecting itself from the destruc- 
tive effects of certain classes of acts, still it 
must be clear that such acts are committed by 
individuals and in order to put a stop to these 
acts the appeal must be made to the actors. 
From a purely pragmatic standpoint, therefore, 
it behooves society to study the individuals who 
commit antisocial acts in order to find out why 
they commit them and how they can be appealed 
to to change their form of conduct. These are 
purely practical issues for on them must depend 36 
INSANITY AND THE CRIMINAL LAW 
a rational and effective criminal law and prac- 
tice. The whole science of criminology must 
be founded upon a comprehensive understand- 
ing of the individual criminal. 
Criminologists in the past, and even within 
recent years, have tried to come to an under- 
standing of the criminal by methods essentially 
statistical.3 They have weighed and measured 
him in every conceivable way. They have, how- 
ever, made a fundamental mistake. They take 
a group of men who all have the same ‘‘label,” 
such as “thief” for example, and then proceed 
to determine what are the characteristics of a 
thief. They try to reason from the act to the 
nature of the actor, a very dangerous direction 
from which to expect sound conclusions. The 
psychiatrist knows from his experience in work- 
ing out the problems of individual patients that 
many different types of individuals may per- 
form what is outwardly the same act. In fact, 
it is hardly necessary to have any special scien- 
tific training to appreciate that this must be so. 
All men walk and talk and engage in business 
relations with each other. Yet “ail men” in- 
cludes all types of men and the outward act only 
indicates what they have in common, not where- 
3White, William A.: “Charles Goring’s ‘The English Con- 
vict ’ ’ ’; A Symposium. Method and Motive from a Psychiatric 
Viewpoint, Journal American Institute of Criminal Law and 
Criminology, September, 1914. TENDENCY TO INDIVIDUALIZE 
37 
in they differ. Similarly all sorts of men will 
be found with the same “ label, ” for example, 
“thief.’’ The outward act was, in its general 
aspects, the same in each instance but it was 
motivated by vastly different tendencies in the 
man who stole bread because he and his family 
were hungry and the man who stole money 
which he used for going on a prolonged spree. 
The law has been in the habit of ignoring these 
differences, but they lie at the very heart of the 
whole matter and until they are understood 
there can be no adequate means developed for 
dealing with crime. 
The new psychology has occupied itself very 
largely with an investigation of human motives. 
As a result of its studies, it has been demon- 
strated that a given act of a given individual is 
an end product in this individual’s life and can 
only be understood by knowing that individual’s 
past, at least so much of it as led up to and 
eventuated in the act in question. This, of 
course, is a truism but for the further fact that 
by far the greater portion of that past, out of 
which the act grew, is not only not apparent to 
the observer from a mere disclosure of the 
historical sequence of events which led to the 
act, but is unknown also to the actor himself. 
Some one has very aptly said that the murderer 
who sees his victim lying before him and a 38 
INSANITY AND THE CRIMINAL LAW 
smoking revolver in his hand is probably, of all 
those who may be present, the most surprised. 
The driving force for conduct comes from this 
region which is not illuminated by the light of 
consciousness; it is the region which has been 
called the unconscious, and it is the repository 
of all those traditions, prejudices and desires 
which in their totality serve to give direction to 
the mental operations, to motivate conduct. It 
is only by a study of these unconscious factors 
that conduct in general, criminal conduct in 
particular, can be understood, that any method 
of procedure can be devised that has any rea- 
sonable prospect of influencing it. 
The following case illustrates very well how 
motives that are not clearly conscious can in- 
fluence conduct. 
Case III. This white ex-soldier was being 
treated in a general hospital, conceived para- 
noid ideas about his physician and shot him, 
narrowly escaping the infliction of fatal in- 
juries. He was indicted for assault with intent 
to hill, developed a defense reaction, was found 
of unsound mind by a jury and sent to St. 
Elizabeth’s Hospital. A year later his charge 
was nolle prossed. A year after this applica- 
tion was made for his release and this being de- 
nied a habeas corpus was had and the jury 
found him of sound mind. TENDENCY TO INDIVIDUALIZE 
39 
This patient was a thirty-year-old white sol- 
dier, of doubtful antecedents and practically 
illiterate. He was reared in a mountainous dis- 
trict where the carrying of fire-arms and their 
ready use in arguments was universal. Hence 
he considered that to have a revolver on one’s 
hip and to use it in a quarrel was perfectly 
natural. He enlisted in the Army at the age of 
twenty and after several years’ peaceful serv- 
ice, the United States entered the Great War 
and he was sent across to France. Here for the 
first time he came into contact with war, with 
actual killing, bloody wounds, brutality, etc. 
The real extent and nature of his military serv- 
ice is uncertain; his Army record was lost and 
accounts vary. According to his own state- 
ments he was in five severe drives, showed un- 
exampled courage, fought for three days and 
nights without food or sleep, was buried once 
by a shell explosion and was gassed and 
wounded several times. According to reports 
from military sources he was invalided with 
a self-inflicted wound of the foot. He was re- 
turned to the United States and (as often 
happened) the placard S. I. W. (self-inflicted 
wound) having been lost or removed, he was 
treated as an ordinary wound case. He ap- 
pears, however, to have developed an extraor- 
dinary sensitiveness about this wound and was 40 
INSANITY AND THE CRIMINAL LAW 
always ready to interpret any fancied neglect 
of it as a covert sneer at its causation. Thus, 
while being treated at a military hospital in 
New Jersey he became paranoid about a young 
surgeon there. When this surgeon left the 
service the patient obtained a furlough and 
went to Washington, D. C., ostensibly to make 
some inquiries about his compensation, but 
really to follow up this surgeon, whose home 
was in that city. It is not known whether or not 
his animosity would have taken any active form, 
as the doctor was out of town, but judging 
from subsequent events it might easily have 
done so. He then applied to the War Risk 
Bureau for treatment for his foot and was 
placed in a Washington hospital. Here he 
developed delusional ideas about a doctor 
on the staff, one, Dr. R. He believed that Dr. 
R. neglected his foot at times and at other 
times handled his wound with unnecessary 
roughness. He also thought the doctor had 
him placed on wards where the patients were 
under mental observation and thought this was 
done so that they could make a “nut” out of 
him. About this time the patient went on a 
visit to his home town which lasted several 
months. About two weeks before his return to 
Washington he bought a revolver and brought 
it back with him. When questioned later on TENDENCY TO INDIVIDUALIZE 
41 
about this revolver, he could not or would not 
give any good reason for purchasing it. He 
would only say that it was customary to carry 
revolvers in his home town, that he thought he 
might need it sometime and that he wanted it 
for protection, or that he carried it in his suit 
case and had no intention of using it. On his 
return to the hospital he again developed delu- 
sional ideas about Dr. R. One morning he got 
his revolver out of the suit case and put it in his 
pocket. A little while later he met Dr. R. face 
to face in the hall and fired point blank at him 
three times, from a distance of about eight feet. 
Two of these bullets missed the doctor, although 
very narrowly, but the third struck him in the 
chest, inflicting a wound from which he recov- 
ered a few weeks later. The patient was put 
in jail and when examined shortly after was 
in a state of acute confusion. He made many 
silly grimaces, threw his arms and legs about 
and talked wildly. This bizarre conduct was 
especially evident when he was examined by the 
physician. He gave expression to ideas that 
he had never attacked the doctor, that it was 
all a made-up plan against him. He also 
thought that the doctor came to his cell door 
and told him everything was all right. He 
thought too, for a time, that his cell mate was 
Dr. R. After a period of comparative quiet* 42 
INSANITY AND THE CRIMINAL LAW 
he was brought into court. At the court he 
became wildly excited and attacked several of 
the marshals. He was indicted for murder but 
upon being tried, an inquisition into his mental 
condition was held and he was found of unsound 
mind and transferred to St. Elizabeth’s Hos- 
pital. At the hospital he was quite con- 
fused and excited for a time, then gradually 
improved. As soon as he began talking rele- 
vantly, frequent conversations were held with 
him about his offense. At times he would claim 
that he remembered nothing about the occur- 
rence at all, that he did not remember having 
the gun with him and that the first thing he 
knew was when he found himself in jail some 
weeks after the occurrence. His account varies 
from this claim of total amnesia to an account 
somewhat as follows: He said he remembered 
feeling sore against this doctor, that he got 
the gun out of his suit case, that he remembered 
meeting the doctor in the hall and firing at him. 
He claims, however, that he was in a daze when 
he was doing all these things and did not know 
why he was doing them. As to the nature of 
the crime and its possible consequences, he 
adopted a peculiar attitude. He smiled or 
laughed when talking about it and appeared to 
regard it very much as one would who had 
broken an ornament by accident. He would TENDENCY TO INDIVIDUALIZE 
43 
say, “Oh, Dr. R. is a good fellow, it is all right 
with him” or “Dr. R. said himself it was all 
right, he was not hurt.” Part of the time he 
would claim that the doctor was not hurt at all. 
When asked how he explained this, he said that 
the doctor must have worn a steel jacket under 
his clothes which deflected the bullets. Later 
on he changed this and said that he must have 
deliberately fired in another direction from the 
doctor. He refused absolutely to believe that 
Dr. R. was wounded even when assured by phy- 
sicians who knew Dr. R. personally, that this 
was so. After a period of comparative calm, 
the patient became very much upset. The only 
apparent cause of this excitement was that a 
female vocational trainer had tried to give him 
some education in rudimentary reading and 
writing. He became strongly attached to this 
woman and persisted in trying to write her love 
letters instead of attending to his lessons. His 
conduct finally became such that she was obliged 
to discontinue the lessons and shortly after this 
he passed into a confused state. He developed 
delusional ideas about other patients on the 
ward, accusing them of calling him vile sexual 
names and identifying one of the hospital em- 
ployes as his father. Part of the time he wept 
bitterly and talked of suicide; at other times 
he was excited and struck other patients who 44 
INSANITY AND THE CRIMINAL LAW 
happened to he in the room. He seemed quite 
bewildered when patients talked to him and 
asked such questions as “What is insanity?” 
and “Are we all insane?” etc. He made a 
gradual recovery from this upset condition and 
became very well behaved. About this time, 
pressure was brought to bear on the District 
Attorney’s office to have his indictment nolle 
prossed. The physicians in charge of the pa- 
tient made it clear in their reports that the 
mental disorder, which undoubtedly existed, 
arose for the most part subsequent to the com- 
mission of the crime and that there was little 
actual evidence pointing to the existence of a 
psychosis at the time of the crime itself and 
consequently no opinion was offered to the Dis- 
trict Attorney’s office, bearing on responsibility 
for the offense. Nevertheless, the charge was 
nolle prossed. The patient was then transferred 
from the criminal department to another part 
of the hospital, given some light work to do and 
certain privileges of the hospital. He requested 
discharge, or failing that, permission to visit the 
city unattended and numerous examinations of 
him were made with the idea of seeing whether 
or not he had recovered sufficiently to warrant 
any enlargement of his privileges. It was 
found, however, that beneath his superficial 
good nature and plausibility, there was a dis- TENDENCY TO INDIVIDUALIZE 
45 
tinct lack of understanding of the nature and 
consequences of his act and there was no appre- 
ciation of his mental disorder. He continued 
to refuse to believe that the physician had been 
hurt and treated the whole affair lightly, saying 
that he had seen so many men shot down over 
in Europe that killing people seemed to him to 
be a natural method of retaliation. He was 
very hazy about the crime itself but appeared 
at times to have a recollection of all of its 
essential details. He was totally unable to ex- 
plain his mental upsets and could not be gotten 
to have any realization of their seriousness. 
He became acquainted in the hospital with a 
woman, many years his senior, who acquired 
quite an ascendency over him and who had been 
appointed his guardian, handling his compen- 
sation funds, amounting to a considerable sum. 
He was very anxious to leave the hospital and 
marry this woman and she encouraged him in 
this idea. She and several friends whom she 
had interested in the patient insisted upon his 
release from the hospital. The situation was 
carefully explained to them by the hospital au- 
thorities both verbally and in writing and the 
dangers of releasing an uneducated, emotional, 
irresponsible man with a record of one felonious 
assault and with the residuals of a psychosis, 
were duly pointed out, but made no impression 46 
INSANITY AND THE CRIMINAL LAW 
on them. They persisted in demanding his re- 
lease and after repeated refusals, secured a 
writ of habeas corpus. The hospital made a 
return to the writ outlining the mental condi- 
tion of the patient and the possible dangers 
which would result from his release. At the 
trial the patient took the stand and told a story 
of an unfortunate childhood, a heroic military 
career, shell-shock and recovery; the jury 
promptly returned a verdict of sound mind and 
the patient was turned loose. 
The conduct of this patient can he largely 
understood if it is conceived as an attempt to 
make himself believe that he is in fact a worthy 
veteran and had been a brave soldier rather 
than the contrary fact, namely, that he shot 
himself to get invalided home and is now fraud- 
ulently drawing benefit money. When it is 
realized that he would have to give up not only 
his financial benefits but his honorable standing 
in the community it can be readily appreciated 
how next to impossible it would be for him to 
accept the facts and how desperately, even to 
the point of homicide, he has had to fight to 
keep them from consciousness and maintain his 
self esteem. 
Now, the analysis of conduct by the highly 
intensive study of the individual not only dis- 
closes the motives but also discloses that these TENDENCY TO INDIVIDUALIZE 
47 
motives at bottom are extraordinarily few. In 
fact, they can all be reduced to two fundamental 
instincts which defy, for all practical purposes, 
further subdivision. These are the instinct for 
self-preservation, and the instinct for race- 
preservation. Out of these two tendencies and 
their modifications are constructed all that in- 
finite variety of personality make-ups, no two 
of which are alike. It may seem incredible that 
the basic factors of personality should be so 
few but an illustration will serve to make it 
comprehensible. The human face is composed 
of practically only a very few component parts 
—eyes, ears, a nose, a mouth, a forehead and a 
chin, yet no two faces in all the world are ex- 
actly alike. The comparison may be carried 
further. Not only is it obvious that the earlier 
a cause operates to modify the elements in- 
volved in a growing, developing structure the 
greater and more firmly fixed the modification 
becomes, but that a cause operating to disturb 
the relations of these few factors must be ex- 
pressed as a distortion of the whole structure. 
Let the outlines of a face be drawn inclosed in a 
square divided into smaller squares, a network 
of ordinates as it is called. Now let a force be 
applied to any angle of the square so that the 
square will be distorted, two of the angles being 
made more obtuse and two more acute. The 48 
INSANITY AND THE CRIMINAL LAW 
contained outlines will not only be distorted but 
they will be changed in every part so that no 
smallest portion of the face escapes the distort- 
ing influence. In this way it is easy to picture 
the results of distorting forces operating on the 
personality early in life and understand how 
the whole character may be warped and the de- 
formity later become relatively fixed and inca- 
pable of material modification. 
Lest this illustration should mislead by giving 
a picture which is too static, it should be borne 
in mind that the factors involved are forces 
rather than things and that the illustration is 
only a crude analogy for the purpose of visual- 
izing what takes place. As a matter of fact, 
the personality make-up is the result of the 
reaction between the forces inherent in the in- 
dividual and those of the environment and these 
reactions can only be thought of as exchanges 
of energy. The whole situation is therefore 
dynamic and needs to be so conceived. 
Conceived of from this point of view, not as a 
fixed but as a modifiable product, the individual 
comes to have a new importance from the stand- 
point of the criminal law. Every individual 
represents so much energy which may be used 
for good or ill. The criminal is one who is en- 
gaged in using his energies destructively The 
question is: Can his energies, or any portion of TENDENCY TO INDIVIDUALIZE 
49 
them, be turned into constructive channels? It 
is a purely practical question, a question in the 
economics of energy utilization and not at all a 
moral or a religious question. It has already 
been indicated how moral condemnation and the 
idea of sinfulness got into the situation. The 
only possible way to find an answer to this 
economic question of the better utilization of 
the energies dissipated in crime is through the 
more complete understanding of the criminal. 
He cannot be changed so that he will use his 
energies to better advantage unless the forces 
at work to make him what he is are known. 
Only when their directions, their tendencies, 
their strength is revealed will it be possible to 
develop a program for dealing with them that 
will afford any prospect of producing the results 
sought after. The treatment of the criminal by 
punishment of greater or less severity, that is, 
by methods that are solely repressive, has been 
the rule always. The net result of repression is 
at least questionable. It certainly has not pro- 
duced the prompt and effective results that 
seem to have been expected of it. Whether crime 
has increased or decreased is a mooted question. 
It must be evident, however, that there will 
always be crime because there always must be 
individuals who are inadequate in their capacity 
for the social adjustments and their inadequacy 50 
INSANITY AND THE CRIMINAL LAW 
is necessarily expressed in conduct which is not 
calculated to effect the best interests of society. 
Such asocial or antisocial conduct may be nega- 
tive or positive in character. That is, it may 
be directly aimed at the existence of social insti- 
tions or it may be just definitely or negatively 
non-cooperative or of such a nature as to be of 
no use to the community. Illness, in this sense, 
that it renders the individual incapable of posi- 
tive socially constructive conduct, is asocial. 
This is particularly evident with respect to 
mental disease, while the more definitely anti- 
social criminal conduct is of a positive and 
aggressive nature such as the many types of 
offenses directed against person and property.4 
Crime, therefore, must always exist. The 
only questions are whether it is increasing or 
diminishing, or whether it is materially chang- 
ing its form. The question as to the increase or 
decrease of crime is a mooted one but it seems 
fair to conclude, and many authors so hold, that 
the increasing complexity of society has re- 
sulted necessarily in an increase in quantity of 
crime. Much of this increase, however, is in 
what might be termed statutory crime, that is, 
offenses against statutes which have come into 
existence to meet this increasing complexity. 
* For a discussion of the differences between insane and 
criminal conduct from the point of view of society, see my 
“Principles of Mental Hygiene.” TENDENCY TO INDIVIDUALIZE 
51 
Naturally a great part of the increase will, 
therefore, be credited to misdemeanors and to 
economic factors as statutes governing these 
matters represent the efforts of a highly com- 
plex community to make those fine adjustments 
in conduct which will make for its stability. For 
example, the advent of the automobile has intro- 
duced a new factor into social life which has 
called for new adjustments in all sorts of direc- 
tions. The necessity for these adjustments has 
been recognized by legislatures and they have 
sought to aid in bringing them about by appro- 
priate laws. The result is that a large body of 
laws relating to licenses, operator’s permits, 
ownership certificates, speed regulations, etc., 
have been created, many of which carry penalty 
clauses for failure to observe them. Thus a 
whole group of crimes is brought into existence 
in this way. The same thing happens with 
every radical innovation or new adjustment and 
so crimes in the abstract are constantly being 
increased in number by legislative enactment. 
This matter of statutory crime, however, is of 
relatively little importance from the point of 
view of criminology. The question of whether 
the crimes which are dependent upon the funda- 
mental instincts of man have changed in quan- 
tity or quality is quite a different one. They 
may easily appear to be increasing because a 52 
INSANITY AND THE CRIMINAL LAW 
better organized, more efficient police system 
discovers them and traces the perpetrators. 
But reasoning from fundamental principles, it 
seems probable that there can be but little 
change because, from all that we know of man 
he has undergone no material change in his 
natural and fundamental equipment during any 
period over which such an inquiry might be 
projected. The effects of hate, jealousy, envy, 
and the love of ease, luxury and dissipation are 
probably about the same as they always have 
been, and the crimes against person and prop- 
erty which result from them are probably as 
old as man himself. The only change that could 
be expected in the character and number of 
such crimes would not be brought about by any 
change which has taken place in man, say in the 
last two thousand years, but only the proportion 
in the community of that type of individuals 
who yielded to such impulses in a criminal way. 
Has this type of individual increased or de- 
creased? To this question also there can be no 
definite answer. It is getting to be pretty well 
recognized by the psychiatrist that these indi- 
viduals are, at least for the most part, defective 
to a well recognizable degree. It is easy to 
understand why this should be so. The criminal 
is a person who does not conform to social re- 
quirements and an examination of his conduct TENDENCY TO INDIVIDUALIZE 
reveals that it is motivated by ideals that are 
undeveloped, relatively infantile, that is, of 
lower standard in the developmental scheme 
than that set by the community of which he is 
a member. Now, conduct which is regularly 
motivated by less highly developed standards, 
by standards which prevailed at an earlier time 
in the history of the race, is conduct which has 
not attained to the necessary standard of cul- 
tural development—it is undeveloped or defec- 
tive in character because it cannot adjust the 
individual to his social environment. Having 
been evolved as a response to a simpler social 
organization, it is incapable of effectively serv- 
ing the individual in a more complex one, hence 
is defective. Defective conduct is the expres- 
sion of a defective individual and, as already 
indicated, there must always be individuals who 
are relatively defective in every community. 
The distance between the man at the top and the 
man at the bottom must always be great. 
Whether it can be lessened is doubtful, it is at 
least the business of the humanist to try. 
Whether it has been lessened is open to argu- 
ment. CHAPTER V 
EXPERT TESTIMONY 
Following the discussions in the previous 
chapters of the nature of crime and the criminal 
and the examination of the tendencies which 
now exist towards a greater individualization of 
the criminal, this and succeeding chapters will 
take up a discussion of the prevailing practices 
and concepts, an understanding of which is nec- 
essary in order to come to an outlining of those 
specific recommendations for betterment which 
are to follow. 
In recent years so much and yet so little has 
been said about expert testimony, for prac- 
tically all of the discussions revolve in about the 
same circle and it is rare that any one of them 
throws any new light upon the questions in- 
volved. The most striking thing perhaps about 
the whole discussion is, the vehemence with 
which everybody denounces the present method 
of procedure and the comparative impotence of 
those same persons when presented with the 
necessity of a constructive attitude of mind and 
asked what they are going to do about it. EXPERT TESTIMONY 
55 
The discrepancy between the attitude of the 
majority of persons who believe the system 
wrong and would tear it down, and the results 
of their labors when they have endeavored to 
build anything in its place is significant. This 
is a familiar psychological situation and must 
necessarily mean that the destructive attitude is 
an emotional one, that the reasons for the feel- 
ings that exist against the present method of 
procedure are not clearly perceived, and that 
therefore no adequate constructive program can 
issue. In proof of this proposition, namely that 
the attitude against the system is an emotional 
one, and that the reasons for the emotions are 
not clearly perceived, may be cited the frequent 
efforts of the two professions—law and medi- 
cine—each to lay the blame upon the other, 
while the general public sees in every criminal 
trial, where the defense of insanity is intro- 
duced, a perfectly clear case of a flagrant at- 
tempt to avoid the legal consequences of crime 
by hiring expert witnesses to testify to the 
insanity of the defendant. It is needless to 
attempt to disprove the justification for such 
extreme attitudes of mind. However, such atti- 
tudes exist, such attitudes are facts, and it is 
pertinent to ask why they exist, and to wonder, 
if perhaps this question could be answered, the 
answer might not illuminate the motives that 56 
INSANITY AND THE CRIMINAL LAW 
give rise to these emotional attitudes that have 
already been suggested, and so enable the in- 
telligence to grasp and deal with them more 
effectively. 
The main difficulty about the present method 
of procedure is that it is not in fact what it 
pretends to be. The method of trial of a crimi- 
nal case before a jury is in the nature of a com- 
bat in which two opposing forces are lined up 
against each other and the battle goes to the 
strongest. The judge acts as a sort of referee 
whose business it is to prevent fouls and the 
taking of unfair advantages. Now into the 
arena where this battle is taking place the ex- 
pert witness is introduced. He is hired and 
paid by one of the parties to the issue, his direct 
testimony is given in response to the attorney 
representing that party. The attorney repre- 
senting the opposite side then undertakes to 
tear to pieces the contributions to the evidence 
which he has made in favor of the side for which 
he was employed. This is essentially and funda- 
mentally a partisan conflict, and the expert wit- 
ness is asked to do something that society does 
not ask of a man in any other capacity. It asks 
him to preserve the same judicial attitude of 
mind which is expected of the judge on the 
bench and to answer all questions fairly and 
impartially and free from prejudice. Every- EXPERT TESTIMONY 
57 
where else where the best effort is demanded of 
an individual, it is endeavored to make his per- 
sonal interests run parallel to the effort de- 
manded. A man who owns, for example, a de- 
partment store, has elevators installed for the 
convenience of his customers. He is not trusted, 
however, to take care of those elevators because 
the fear is that he might not go to the expense 
necessary to maintain them free from dangerous 
accident. This would be particularly true if he 
himself were seriously embarrassed financially. 
What is the solution of such a problem? He 
must have his elevators insured, and, what is 
the real insurance hack of such a requirement? 
A perfectly patent one—that the insurance 
company, being responsible for all financial 
losses that may arise, due to accident dependent 
upon bad or worn-out equipment, will see to it, 
because it is to their interest to see to it, that the 
elevators are always safe. The expert witness, 
on the other hand, is supposed to go on the 
witness stand, representing one side of the con- 
troversy, receiving his compensation from that 
side, and then without hesitation, without any at- 
tempt to evade in any way the question at issue, 
he is expected the moment the opportunity pre- 
sents itself in the shape of a question to which 
an answer would be to the disadvantage of the 
side that has employed him, to give that answer. 58 
INSANITY AND THE CRIMINAL LAW 
The astonishing thing is not that medical 
expert testimony is so bad, but that it is so good. 
Medical men have not met the demands abso- 
lutely, but if they have not it is not because they 
have not tried nor is it because they have not 
wanted to—it is because the demand is psycho- 
logically an impossible one to meet. The wit- 
ness generally errs in one of two directions— 
either he is distinctly partisan, or because being 
in fear that he will be partisan, he leans over so 
far backward that he unnecessarily injures the 
cause which he represents. The former of the 
two errors is naturally the more frequent, but 
it is not an error born of dishonesty, for, far 
from having any intent to deceive, the witness 
honestly tries his best, in the great majority of 
cases, to present his views fairly, but it is an 
error bom of a natural weakness of human 
nature as it fails before an impossible task. It 
is this partisanship which does, as a matter of 
fact, exist, no matter how strongly it may be 
denied, which is at the bottom of the feeling 
attitude toward the expert situation, but it is 
not a matter solely to blame the medical man 
for. He does his best; he is only one wheel in 
the great machinery of the law, and that ma- 
chinery is not of his making. Unfortunately for 
him, however, he occupies a position which tem- 
porarily gives him a place vThere all eyes are EXPERT TESTIMONY 
59 
centered upon him. He seems to bear the burden 
for the moment of the entire system, and it is 
because of his prominent place on the stage, 
because the spot-light is upon him, so to speak, 
that he has been supposed by the public to be to 
blame. He is rarely personally to blame at all. 
It is only his work which shows up to disadvan- 
tage in a system which is wrong. 
No matter how much effort the expert may 
make, before he agrees to take the stand, to 
satisfy himself of the actual facts in the case 
and that he can conscientiously testify for the 
side which seeks his services, it must be remem- 
bered that, and especially in those cases where 
he is not permitted to examine the defendant, 
he is limited in his knowledge of the case to the 
facts which the lawyer who seeks to employ him 
is able to give him and which he hopes to estab- 
lish by evidence.1 The lawyer is necessarily 
prejudiced in favor of his client and so must 
present an ex parte statement of the case and 
wholly aside from any willful attempt to mis- 
represent the facts may, on that account alone, 
be convinced of the justice of his side of the 
argument. Many of the facts which the lawyer 
hopes to prove he may fail to establish because 
witnesses often tell a different story or create a 
1 Of course this is doubly true in will cases in which the 
maker of the will is deceased and cannot be examined. 60 
INSANITY AND THE CRIMINAL LAW 
different impression on the witness stand than 
was expected of them from their account as 
given in the office of the attorney or, because 
the evidence they give is broken down and dis- 
credited on the cross-examination or contra- 
dicted by the witnesses on the other side. Thus 
in spite of his best efforts the expert often finds 
himself on the stand in a case that has developed 
in court in a manner quite contrary to what he 
had been led to expect from his conferences with 
the attorney. 
To illustrate the nature of the defects in the 
system and at the same time to suggest the 
places where it can be improved, four of the 
concepts which are controlling in the operation 
will be briefly discussed. CHAPTER VI 
PREJUDICE 
The legal machinery has been created largely 
with the idea of considering the offender in as 
impersonal a way as possible. Judge and jury 
are supposed to have no personal feelings in- 
volved but to be able to consider the evidence 
solely upon its merits and arrive at conclusions 
far from personal bias and from the operation 
of emotional factors. An attempt is made to so 
present the evidence that it may have a coldly 
intellectual consideration, and the punishment 
meted out under such circumstances is appar- 
ently supposed to approximate and at least to 
aim at abstract justice. 
The impracticability of supposing that any- 
thing like abstract justice can be attained, pre- 
suming that any such thing as abstract justice 
really exists, is perfectly evident to any one 
with the least experience in actual trials of con- 
crete issues. Every one with such experience 
must soon come to realize, no matter how ideal- 
istically he may have originally approached the 
61 62 
INSANITY AND THE CRIMINAL LAW 
problem, how essentially human the whole pro- 
ceeding really is. Of course, to make such a 
statement as this is really the tritest of truisms 
yet few realize how the passions, the emotions, 
the prejudices really find an outlet in the course 
of the trial and are expressed in the final judg- 
ment. Aside from this statement, it must be 
evident to all students of present-day psychol- 
ogy and philosophy that such a thing as an un- 
prejudiced individual does not exist. 
The reason why this statement is made so 
definitely is because psychology teaches very 
clearly that mental actions are necessarily con- 
ditioned by all that has gone before into the 
composition of the fabric of the mind whether 
all those elements which for the time being are 
operative are present in consciousness or not. 
In other words, an opinion is the outcome of the 
whole tendency of the individual as it has been 
built up during his lifetime, and whether he 
thinks it or not, he is swayed at every point by 
these ingrained tendencies. 
The following case illustrates these points 
well. Father Schmidt was convicted and exe- 
cuted despite the fact that his whole career 
had been evidently psychotic and at one time he 
had been a patient in a mental hospital. The 
horror of the crime made any real considera- 
tion of the criminal impossible. PREJUDICE 
63 
Case IV. A priest murders a girl with whom 
he had been intimate. He is convicted and exe- 
cuted despite clear evidence of his mental ill- 
ness* 
The general attitude and appearance of 
Father Schmidt was striking. He was rather 
short of stature, well nourished, and round of 
limb. He wore a full beard, and with his some- 
what pale and prominent features and rather 
finely chiseled nose and eyes that were liquid 
and spiritual in expression, he gave the instant 
impression of a certain resemblance to the 
Christ with which one becomes so familiar 
among the mentally diseased. He moved about 
and sat down without apparently paying any 
attention whatever to his body. Throughout 
the examination he sat perfectly quiet, there 
was no agitation of his body or signs of nerv- 
ousness of any kind; his hands lay limp in 
his lap, his shirt was unbuttoned at the neck, 
his trousers were unbuttoned in front and he 
gave me the general impression of not only not 
caring for his body, but as hardly knowing that 
he had one. Upon his left side, under the 
breast, there was a large birth-mark about the 
size of my two hands spread out. It was pale 
pink in color, neither red nor white, the signifi- 
CASE OF FATHER JOHANNIS SCHMIDT 64 
INSANITY AND THE CRIMINAL LAW 
cance of which will appear later. At the ex- 
tremity of the spinal column there was a tri- 
angular area of hairiness of perhaps four 
inches in length with the base of the triangle 
uppermost. 
The mental examination elicited the follow- 
ing facts: He has always been interested in 
blood. He says that blood always excites him, 
meaning sexually. He remembers in the old 
homestead he was always very much interested 
in seeing his mother chop off the heads of 
chickens and geese, and he would often pick up 
one of the heads and carry it about with him 
for days afterwards. On occasions, he, with 
another boy, would take the heads and place 
them between their legs. On one occasion he 
was about to unbutton his pants to put the head 
against his genitals when his father caught him 
and whipped him. He used to visit the slaugh- 
ter house with another boy and while watching 
the operations they would feel each other’s 
genitals. One of his very earliest experiences 
in seeing blood was in seeing the blood in the 
bed where his sister had slept,—undoubtedly 
her menstrual blood. Upon one occasion, when 
his mother was confined and he was about six 
years old, he says he wanted to be with her 
very much when she was in bed, and once when 
in the room he pulled back the bed clothes and PREJUDICE 
65 
saw some blood. Upon another occasion she 
asked him to take the vessel out and empty it. 
She had put a piece of paper over it. He took 
it out and emptied it in the sink. It contained 
blood. He remembers falling upon a broken 
bottle and cutting his thigh and being attended 
by the barber, who put some stitches in it, and 
his sister would generally be present and assist 
the dressings. He says he is the favorite priest 
of God, for God has shown him many times the 
real blood in the chalice. 
He was ordained in the old country by a 
bishop, but the night previous to his ordination 
he was visited by Saint Elizabeth, who ordained 
him and made him her favorite priest. This 
was Saint Elizabeth of Hungary. He knows 
the stories of this saint; he tells how she was 
a very good woman and used to go about among 
the poor and help them. He remembers the 
story when her affianced husband met her on a 
cold, wintry day and wanted to know where she 
was going and chided her for exposing herself 
to the weather. He asked her what she had in 
her apron, and reaching forward pulled it open, 
when the bread that was there turned into 
roses, and the roses all fresh fell out upon the 
ground. He tells how this man afterwards 
married her, drove her out of the house, and 
how finally she died in prison. He also knows 66 
INSANITY AND THE CRIMINAL LAW 
the story of Saint Elizabeth picking up the little 
leprous child, taking it home, putting it in her 
bed, and then looking and finding that it was 
the Christ child. 
He tells about his own life. He tells how his 
father used to abuse his mother. His father 
was an engineer on the railroad and came home 
frequently drunk. He says his mother was a 
very good woman and used to help the poor 
when she could. He says his sister was also a 
very good woman, and she also used to help the 
poor when she could. His sister’s name was 
Elizabeth. 
Here he said also that there was something 
mysterious about his own parentage, that he 
frequently asked his mother about it and that 
she said that she would tell it all in good time. 
The father, I think he said, also knew about it. 
The father wanted his name called Heinrich 
when he was born, but it was finally Johannis, 
and that has great significance with reference 
to his parentage; he says he is named after 
John the Baptist, and this relationship between 
himself and John the Baptist, through his 
mother, has something to do with the relation- 
ship of Christ to Mary also perhaps in the same 
way. John the Baptist was the man who bap- 
tized Christ. He took Christ into the water and 
baptized him. Water is a means of purification, PREJUDICE 
67 
and always in the communion service they mix 
water with the wine and when Christ was on 
the cross and the soldier plunged the spear in 
his side blood and water flowed from his side, 
and the birth-mark on his side is neither red 
nor white, but pale—like blood mixed with 
water. 
In the old homestead in Darmstadt there 
were only three rooms, kitchen, the bed room 
for his father and mother, and the other room 
where the children slept. He slept often in the 
bed with his sister, and his brother Heinrich 
was also often in the same bed. He remembers 
very early having had some kind of sexual rela- 
tion with his sister, and he remembers that his 
sister told him that he must not say anything 
about it. He thinks also that Heinrich had the 
same sort of relations with her. He says also 
that Heinrich is the brother most like him- 
self. 
The father used to misuse the mother very 
much, often striking her. Upon one occasion 
he threw the hatchet at her, and upon another 
occasion, at the table, when she was getting 
supper ready, he struck her with a knife, and 
cut her hand. He remembers the knife very 
well, because it was one his father carried for 
many years. When he saw the blood in the 
bed at the time his mother was confined he 68 
INSANITY AND THE CRIMINAL LAW 
thought the blood was the result of his father 
having wounded his mother wdtli the knife. On 
one occasion, when he and his brother Heinrich, 
were sleeping together, his brother woke him 
up and called his attention to noises coming 
from his parents’ room. He heard his mother 
give a suppressed cry, and while it was not the 
same kind of cry she made when his father cut 
her with the knife, still he thought that his 
father was injuring her. 
He has had numerous sexual relationships 
during his life. In his early days he and a boy 
named Otto Schmidt, who was a cousin of his, 
used to beat each other with a rope. Later on 
there was another boy with whom he had homo- 
sexual relations, a boy who came to visit him 
when he had rheumatism, and finally with Dr. 
Murat. In his relations with Dr. Murat he has 
felt himself become a woman; he put his hands 
to his breasts, and said that he had the breasts 
of Saint Elizabeth. In these relations he was 
often rough, and his companion would com- 
plain. He actually bit, and he said that he felt 
as if he could eat them. 
When he first met Annie Aumuller he fainted, 
—became completely unconscious. He can give 
no explanation for this. Later, after he had 
sexual relations with her for some time, he was 
doubtful whether it was right or not. He knew PREJUDICE 
69 
that he was offending the laws of the priesthood, 
and yet he felt that God had given him these 
feelings and these faculties, and that it might 
be right to use them. He accordingly took her 
into the church, had sexual relations with her 
at the altar, meanwhile watching the chalice to 
see whether God would give him the sign. He 
said there was no sign and he therefore thought 
that God approved. 
I asked him, if when he came to the Tombs 
he had not had a cut on his hand. He said, yes, 
on the right hand at the base of his index 
finger. I asked him how he got it and he said 
that it came from the knife when he (I believe 
he used the term) “divided” Annie. There 
was some considerable discussion as to how 
many parts he had cut her in, and it was not 
altogether clear whether it was seven or nine 
parts. He insisted that it was seven, and no 
matter what was said with regard to the coro- 
ner’s report or any other sort of information, 
he replied stolidly, ‘ ‘ I know better than they, it 
was seven.”1 He finally, upon request, took a 
pencil and paper and indicated by a drawing 
how he had cut up the body. After he cut her 
throat he attempted coitus with the body, but 
failed. He took some of the blood from the 
1 The mystical and religious significance of seven is well 
known. 70 
INSANITY AND THE CRIMINAL LAW 
wound in the throat, mixed it with water, and 
drank it. 
The Lord had said to him before the homi- 
cide upon several occasions that Annie must be 
a sacrifice and an atonement. One of the ob- 
jects of putting her in the water was to mix 
her blood with water and put her where no one 
else could even touch her. He told once about 
visiting a church in the old country, where there 
had been a miracle and where the Lord had 
caused to appear upon the altar twelve bleed- 
ing heads. He saw the cloth upon which these 
heads had rested, and these heads were the 
heads of the twelve apostles. In connection 
with the number 7 as being the number in which 
Annie’s body was divided, he speaks of the 
seven candle sticks, the seven branches of the 
candle sticks used in the Jewish Temple, etc. 
I asked him when I had completed my 
examination whether he was at peace with God 
and he said that he was, that God would keep 
his promise, and he stated that he felt as if he 
had entered into God and formed a part of him, 
was united and identified with him. 
All of the above facts, so far as they were 
objective, were verified by the father and sis- 
ter, who came from Germany to testify at the 
first trial, and also by a close associate of 
Father Schmidt’s in the priesthood. A careful PREJUDICE 
71 
going over of the family record showed mental 
disease upon both sides of the family. His 
heritage of mental disease was therefore du- 
plex. For three or four, I am not sure but five, 
generations back there were numerous in- 
stances of mental disease, particularly suicide. 
This history shows clearly what we would 
call to-day a breaking through of the uncon- 
scious. Undoubtedly from his early boyhood 
Father Schmidt had had a serious internal con- 
flict that expressed itself in sexual symbols. 
He had been fighting this conflict all his life; I 
think as early as seven years of age he was 
known as “the little chaplain,’’ having erected 
an altar in his house and made vestments for 
himself and worshipped before the altar. This 
conflict was most severe, and robbed him of 
anything like consistent efficiency. He was al- 
ways in trouble wherever he was, he had two 
or three distinct fugues, and was rarely able 
to get along at~any church for any period of 
time. He was always being censured by his 
superiors until they found that did little good, 
because instead of correcting his ways he would 
fall into a depression and not eat. There is 
plenty of evidence, as I recall it, that he fre- 
quently made mistakes in raising the host at 
mass with the thumb and middle finger instead 
of the thumb and forefinger. This might seem 72 
INSANITY AND THE CRIMINAL LAW 
a trivial mistake to one not acquainted with 
the rubric of the mass, but when one realizes 
that the thumb and the forefinger are especially 
consecrated by the bishop at ordination and 
anointed with holy oil, and thus prepared for 
their holy office of touching the host, it can be 
understood that to use the middle finger is not a 
trifling matter, but absolutely wrong. He used 
his middle finger, he explains, because that wTas 
the sign of Saint Elizabeth. 
It appears from the above examination that 
he identified himself with John the Baptist. 
There were also evidences, especially in his ap- 
pearance and the birth-mark on his side, that 
he identified himself with Christ. The connec- 
tion between Jesus, the child of Mary, and 
John, the child of her cousin Elizabeth, both 
conceived by the Holy Ghost, is well shown in 
the first chapter of Luke from the 28th to the 
43rd verses. A further identification with 
Saint Elizabeth and therefore a change of sex 
was also noted in his relations with Murat. 
Another important element in the case is that 
he was just at the age of Christ and had he been 
convicted and executed as he appeared to ex- 
pect he would have been executed at exactly 
the same age and practically about the same 
time in his life that Christ was crucified. This 
confusion of identities is the commonest kind PREJUDICE 
73 
of thing to be met with in the psychology of 
the unconscious. A similar type of reasoning 
is shown with reference to a certain alleged 
abortifacient which he is said to have used. He 
gave Miss Aumuller some lentils, either to keep 
her from being pregnant, or to cause her 
menses to come. The prosecution claimed that 
he put these lentils up in packages and sold 
them for criminal purposes. The whole ex- 
planation of the thing shows a typical way of 
unconscious reasoning. He had noticed when 
he ate lentils that they made his bowels move.1 
That is the first point. The second point is that 
Esau sold his birthright for a mess of pottage. 
Now pottage, so Father Schmidt said, is the 
same thing as lentils. Therefore, putting all 
these things together, it can easily be seen why 
lentils should prevent conception, or at least 
bring about a miscarriage. 
Another difficulty which Father Schmidt had 
in the various churches was in his mixing water 
in the wine at communion. The rubric pre- 
scribes, I believe, that only a small portion of 
water shall be mixed with the wine, never more 
than one-third, whereas Father Schmidt was 
constantly being brought to task for using too 
1 Birth phantasy—a recurrence (regression) to the infantile 
theory that accounts for babies by the same processes that 
produce feces. 74 
INSANITY AND THE CRIMINAL LAW 
much water. The hearing upon this of what 
has gone before is easily seen. 
So far as I was able to learn, Father Schmidt 
was a man of gentle nature, who gave not only 
freely to the needy, but to the extent of prac- 
tically impoverishing himself. 
The defense maintained that this man was 
suffering from mental disease, that he had 
finally been unable to handle the conflict that 
had been going on within him all his life, that 
the unconscious broke through and resulted in 
the homicide, that the meaning of the homicide 
can only be read in the light of this man’s whole 
life. They maintained also that in his whole 
career he had shown himself to be inefficient, 
unable to adequately adapt himself to circum- 
stances, in other words, that he had always been 
a failure, just about able to get along. He had 
been once before confined in an institution for 
the insane in Germany, where he had been pro- 
nounced unqualifiedly insane. His whole life 
shows the varying dominion of the two sides of 
his nature, his varying successes and failures in 
the conflict. 
The prosecution claimed that the whole thing 
was malingering, that he was a man of educa- 
tion and unusual attainments, very clever and 
capable, and that the whole delusional system 
which has been outlined above, was manufac- PREJUDICE 
75 
tured. This, despite the fact that while he took 
great pains to deposit the various parts of his 
victim’s body in the river, he left absolutely in- 
criminating evidence right exactly where it 
could not fail to be discovered, left the blood- 
stained knife and saw in his trunk, his picture 
in a coat hanging up on the wall, and other 
things which were entirely at variance with a 
cleverly planned homicide. There were many 
other similarly stupid things, not only in con- 
nection with the act itself, but throughout his 
life, as particularly when he entered into an 
arrangement with Dr. Murat to do counter- 
feiting and expected to be able to prepare him- 
self by buying a book or two on engraving. 
The very horror and atrociousness of the 
thing that he did would seem to preclude the 
possibility of calm judgment being accorded 
him. It would seem that without question the 
more atrocious a crime the greater presump- 
tion there must necessarily be of the abnor- 
mality of the man committing it. The very 
character of the thing that he did would seem 
to be almost sufficient to warrant a diagnosis 
of mental disease. 
Every human being must therefore of neces- 
sity approach every problem with the natural 
bias of his own personality make-up based, as it 
is, upon the totality of his hereditary tenden- 76 
INSANITY AND THE CRIMINAL LAW 
cies, his upbringing and his past experiences. 
The existence of such a background which must 
give form and color to any present experience is 
not only generally recognized but has been spe- 
cifically dealt with in considering the effect 
which it has in determining judicial decisions.2 
2 In New York City the Committee on Criminal Courts of the 
Charity Organization Society examined the records of approxi- 
mately 155,000 cases disposed of in the New York Magistrate’s 
Court in 1914 for the purpose of determining the differences in 
the methods of handling the same class of cases by the various 
magistrates. There were then forty-two judges in the Magis- 
trate’s Court sitting in rotation in two-thirds as many courts, 
and those courts handle about a quarter of a million cases 
annually. Under the plan of rotation each magistrate can be 
assumed to handle practically the same class of cases as those 
handled by his associates. They sit without a jury so the 
conclusions apply directly to the magistrate himself. Never- 
theless the widest differences were found to exist. 
Of 17,075 persons brought before the court for intoxication 
92 per cent were convicted and 8 per cent discharged as not 
guilty. The different magistrates, however, handled this prob- 
lem in widely different ways. Of 566 persons arraigned before 
Judge Naumer he discharged one of that number. Of 673 
persons brought before Judge Corrigan he found 531, or nearly 
79 per cent, were not guilty and discharged them. Between 
these two extremes were all degrees. 
Of 43,096 persons arraigned for disorderly conduct Judge 
Simms discharged only 18 per cent, while Judge Walsh dis- 
charged 54 per cent. 
Judge Simms discharged only 4.5 per cent of those brought 
before him for vagrancy while Judge Fitch discharged 79 per 
cent. 
Of 4835 cases which Judge McQuade disposed of 7 per cent 
were given suspended sentence; 84 per cent were fined; nearly 
7 per cent w’ere sent to the workhouse and a negligible number 
placed on probation or sent to reformatories or other institu- 
tions. Of 4253 cases appearing before Magistrate Folwell 
sentence was suspended in 59 per cent; about 34 per cent were 
fined; a little more than 2 per cent were sent to the work- 
house and the remainder sent to the reformatory or other in- 
stitutions. 
Of 1117 convictions of violation of corporation ordinances PREJUDICE 
77 
Prejudice in this sense is an ineradicable ele- 
ment of the human mind and the best that can 
be done is to attempt to reduce it to a minimum. 
Judge Marsh fined all but six and suspended sentence on these. 
Of 778 convictions of this offense before Judge McGuire he 
suspended sentence in 480 cases, or nearly 61 per cent, and fined 
the rest. 
In cases of disorderly conduct one magistrate suspended sen- 
tence in a little more than one out of eighty-five, while another 
suspended sentence in 50 per cent. 
In 15,683 cases of intoxication Judge Marsh suspended sen- 
tence in less than one out of every hundred, Judge Levy in one 
out of every twenty, Judge Naumer, McGuire, Patten and 
Pitch suspended sentence in about half of the cases; Judge 
Dodd, Geisman, Yoorhees and Folwell let three out of every 
four go and suspended sentence. Judge Steers fined 80 per 
cent of his cases, while Judge Polwell fined only 7 per cent. 
Judge Levy fined all of his cases convicted of peddling 
without a license, while Judge Kochendorfer fined one in ten 
and suspended sentence in the remainder. 
Judge Brough suspended sentence in no cases of vagrancy. 
Judge Conway suspended sentence on every alternate one. 
Judge Brough sent 80 per cent of his cases to the workhouse 
and Judge Conway only about 17 per cent. 
In petty misdemeanor cases Judge Marsh suspended sen- 
tence in only 1.9 per cent of his cases, while Judge McGuire 
suspended sentence in 72.5 per cent of his. (Everson, George: 
“The Human Element in Justice,” Jour. Amer. Institute Crim. 
Law and Criminology, May, 1919.) 
Judicial decisions should be criticized from the viewpoint of 
the status of the judge’s desires and mental processes, rather 
than from the obvious results, and in the light of psychic 
determinism instead of morality. The judge is on trial in 
every case before him. 
“Every judicial opinion necessarily reveals a variety of 
choices. There is a choice of materials from that offered in 
evidence, as well as among possible precedents and arguments. 
A choice is made in that which is approved as well as that 
which is ignored, or expressly disapproved. There is a choice 
of material brought in by the judge and not a matter of 
record. There is a choice in all that is emphasized, slighted or 
distorted. A choice is evinced in the very words by which 
these other choices are expressed. Every such choice is a 
fragment of autobiography.” 
An actual unpublished judicial decision is made the subject 78 
INSANITY AND THE CRIMINAL LAW 
The medical expert who is aware of the true 
state of affairs is a safer witness than one who 
is blind to its possibilities and the same may be 
said of the judge or in fact any one searching 
for the truth in the tangled network of human 
motives. The law should face this fact squarely 
and no longer refuse to see it. The procedure 
in attempting to get at the facts would be made 
simpler by so doing. 
The papers cited in the footnotes indicate 
how judicial opinion can be shown to follow 
logically from the make-up, the previous expe- 
rience and the emotional attitude of the judge. 
And although the grounds for prejudice are not 
ordinarily apparent still trial lawyers learn 
these facts by experience and regularly try to 
bring their cases before judges who they know 
to be favorably disposed toward their position 
in the particular issue involved. A similar un- 
derstanding of the expert is due him rather than 
an instinctive condemnation for prejudices 
which he necessarily harbors. 
Another way in which lawyers regularly rec- 
ognize this principle is by introducing evidence 
of careful analysis. Knowing the objective factors presented 
at the trial, the judge’s reactions as revealed in his decisions, 
it is possible to come to some understanding of the judge’s 
subjective biographical contribution to the final result. 
(Schroeder, Theodore: “The Psychological Study of Judicial 
Opinion,” California Law Review, January, 1918, Vol. VI, No. 
2, pp. 89-113.) PREJUDICE 
79 
which they know will be ruled out. By its intro- 
duction they have put it before and into the 
minds of the jury and no ruling on its admissi- 
bility can eradicate it and make it as naught. 
It is bound to play its part in the final decision. 
I have known the plea of insanity to be made 
solely for the purpose of introducing in evidence 
certain letters written by the defendant to the 
deceased and which could not be introduced on 
any other theory than to show the state of mind 
of the defendant. Once before the jury, the plea 
was not again referred to even in the summing 
up in which no plea was made for a verdict of 
irresponsibility. But the letters had done their 
work and the jury brought in a verdict of “not 
guilty.” 
It would be far better to conduct the trial with 
full and open recognition of its partisan nature 
and expect such witness, the expert included, to 
support the side where his interests lay. Much 
of the discredit which has come upon expert 
testimony is due to its false position. The ex- 
pert has been forced to assume an unprejudiced 
attitude and to act as if he were of a judicial 
state of mind. The discrepancy between his 
real attitude of mind and the attitude he is 
forced to assume is too patent not to have been 
sensed and its appreciation is responsible for 
much of the discredit into which this class of 80 
INSANITY AND THE CRIMINAL LAW 
testimony has fallen. It would dignify the' 
whole procedure enormously if the cross- 
examinations were conducted for the purpose of 
disclosing the degree to which an acknowledged 
prejudice affected the judgment of the witness 
rather than, as now, along the sinister lines of a 
tentative search for a bias which if found dis- 
credits the witness. 
The present method of procedure is hypocrit- 
ical on all sides because it persists in being blind 
to the obvious facts and treating these facts as 
though they did not exist. It may be that this 
stage of hypocrisy, if it may be so called, has 
played a valuable part in the progress to better 
methods of procedure and will make the next 
step forward easier.3 
aFor the possible value of hypocrisy see my ‘ ‘ Foundations 
of Psychiatry. ’ ’ CHAPTEE VII 
THE HYPOTHETICAL QUESTION 
The hypothetical question is, from at least a 
philosophical point of view, an absurdity and 
should be discarded. In the first place, the 
patent criticism against the hypothetical ques- 
tion is that it has absolutely no reason for ex- 
istence, except a reason founded upon what 
seems to be a rather unnecessary effort to con- 
form to a theory, namely, the theory that it is 
the jury’s function and not the expert’s to de- 
cide whether the person whose sanity is in ques- 
tion is or is not of unsound mind. This is cer- 
tainly a quibbling in unessential matters of the 
character which is at present discrediting the 
whole structure of criminal procedure in the 
eyes of the public. What possible reason can 
there be for denying the right of the jury to 
hear the expert express his opinion about the 
defendant in any such way as this at least? If 
it worked, if the expert, as a matter of fact, did 
not express his opinion about the defendant, 
then perhaps there might be some sense in this 
attitude, but when the expert answers the hypo- 
81 82 
INSANITY AND THE CRIMINAL LAW 
thetical question the jury and everybody else 
knows that, as a matter of fact, he is expressing 
his opinion with regard to the defendant, no 
matter whether he says he is or not, and no 
matter whether he attempts to put the defendant 
out of his mind or not, because it is a psycho- 
logical impossibility for the expert to take all 
of the facts that are in evidence and which are 
included in the hypothetical question and which 
relate in their evidential value to the defendant 
and to no one else, and to consider them by 
themselves apart from the knowledge that he 
has that they do so relate to the defendant. He 
may think that he can discard such knowledge 
and consider the matter judicially but it is 
psychologically impossible for him to do so. 
Therefore, the theory of the hypothetical ques- 
tion is based upon a state of affairs which it is 
presumed to bring about, but which in fact is 
not brought about and everybody knows that it 
is not. Why should such illogical requirements 
continue f 
The whole method of examination based upon 
hypothetical inquiries involves the assumption 
that the witness is able to reach conclusions re- 
garding the statements set forth in the hypo- 
thetical question apart from all other considera- 
tions. As if these separate statements could be 
taken out of relation to everything else and be THE HYPOTHETICAL QUESTION 
83 
considered in the abstract! The practical ab- 
surdity of the position is at once apparent if we 
attempt to apply it to an ordinary situation 
such as occurs in every one’s experiences. For 
example, if one were asked to put out of mind, 
for the purpose of the question, all his knowl- 
edge of the character of some one with whom 
he was well acquainted and give his opinion of 
certain acts of that person. This is at once 
seen to be impossible but the request is no more 
impossible than to ask him to put aside all 
knowledge, feeling attitudes and tendencies 
that he may have acquired in his lifetime or, 
more specifically, the knowledge and convic- 
tions he has acquired during his connection with 
the issue on trial. Such an understanding of 
the background upon which all opinions rest 
is due the expert rather than a wholesale con- 
demnation for a state of mind over which he of 
necessity can have only a limited control at 
best. 
The scientific and philosophical objections to 
the hypothetical question might be argued at 
considerable length. It is, for example, philo- 
sophically indefensible thus to separate act and 
actor, the symptom from the patient. Such a 
separation does not exist in nature, it is but 
a feat of the intellect, and it cannot be expected 
that when, by an act of intellectual legerde- 84 
INSANITY AND THE CRIMINAL LAW 
main, they are made to appear as if separated 
any valuable results can issue based upon the 
assumption that they are. The absurdity of 
the situation becomes apparent when the ex- 
pert is asked, about this assumed and hypo- 
thetical individual, what would happen if cer- 
tain other hypothetical symptoms were added 
to or replaced those already assumed to be 
present. Imagine the depths of absurdity to 
which such a method may lead. The expert is 
asked to tell what would happen if an assumed 
symptom were added to or subtracted from a 
group of other assumed symptoms which in turn 
are assumed to be exhibited by a hypothetical 
individual. Often, to add still further complica- 
tions, in the course of a long question including 
a digest of all the evidence and containing thou- 
sands of words and taking perhaps two hours 
to read, many symptoms may be mutually con- 
tradictory and exclusive as a fast pulse and a 
slow pulse. Why not expect the expert to tell 
what would happen if an irresistible force met 
an immovable body? Such a procedure can- 
not very well have and as a matter of fact only 
too frequently does not have results that are 
of any more significance. The cross-examina- 
tion tends to degenerate into a series of dodg- 
ings, avoidances, and hair-splittings which are 
of no possible value in the determination of THE HYPOTHETICAL QUESTION 
85 
the issue and bring discredit upon the whole 
proceeding. 
The hypothetical question is similar to the 
question which for so long vexed the psychi- 
atrists, Was Hamlet mad? Many learned 
treatises have been written discussing this 
question but precisely because there never was 
any such person as Hamlet it can never be de- 
cided whether he was or was not mad. The 
arguments pro and con must ever remain only 
expressions of individual points of view, they 
can never be subjected to the acid test of com- 
paring them with the actual facts, for there are 
no actual facts, Hamlet was but an hypothetical 
individual.1 
The logical and philosophical error of sepa- 
rating the individual from his conduct or from 
the states of body and mind which led up to, 
initiated, and conditioned his conduct is not 
corrected by assuming a hypothetical individual 
to be the bearer of these states of mind and 
body and the doer of the various acts in ques- 
tion. Then again the alleged facts that are 
1 It is, of course, quite another matter to study Hamlet as a 
creation of Shakespeare’s mind and try to reason back from 
the nature of that creation to the qualities of that mind. To 
study Hamlet for the purpose of understanding Shakespeare 
or what he was trying to create in the character of Hamlet, 
whether he was trying to present a picture of madness, is a 
reasonable and logical procedure; to study Hamlet for the 
purpose of understanding Hamlet, except as a creation of 
Shakespeare, is nonsense. 86 
INSANITY AND THE CRIMINAL LAW 
incorporated in the question may not be facts 
at all. It is sufficient that they should have 
been given in evidence to cause their inclusion 
in the hypothetical question. As if testifying 
to something at once created a fact! It would 
be bad enough if the expert were permitted to 
size up the elements of the question and give 
each its evidential value hut the form of the 
question requires that he assume all the state- 
ments included therein to be facts. 
Not to enlarge further upon abstract ob- 
jections I may only add that in a large experi- 
ence I have never known a hypothetical ques- 
tion, in a trial involving the mental condition 
of the defendant, which in my opinion offered 
a fair presentation of the case. It is admittedly 
prepared to contain only those elements which 
favor the side offering it, despite the fact that 
most of them are contradicted by the opposite 
side. It eliminates from consideration every 
human element which every common-sense man 
takes into consideration when he formulates an 
opinion. There are statements of fact in the 
hypothetical question which the expert knows, 
because he has heard the testimony and seen 
the person who gave it to be absolutely worth- 
less, and yet such a statement is given the same 
value in the question as any other. 
Faced with this impossible situation, the ex- THE HYPOTHETICAL QUESTION 
87 
pert does the only thing possible for him to do 
under the circumstances. He formally answers 
the hypothetical question, but his answer has 
little to do with the hypothetical monstrosity 
created by the method of legal procedure; his 
answer refers to the defendant, it is his opin- 
ion of the defendant from all he has been able 
to learn of him; and what is more everybody 
knows that his opinion refers to the defendant 
and so the whole complex, illogical, unreason- 
able, artificial structure that has been so care- 
fully reared through days perhaps of the ex- 
amination and cross-examination of witnesses, 
through the intricacies of innumerable objec- 
tions, arguments, and exceptions; all based 
upon years of traditions built up of decisions; 
this whole complex structure comes tumbling 
down like a house of cards with the utterance 
of a single word. 
The conclusion is unavoidable, either the ex- 
pert must hear all the evidence, as indeed he 
once was obliged to, have his opportunity to 
size up each witness, examine the defendant, 
or otherwise have access to all the facts and 
then pass judgment, or that he should be freely 
accepted as a partisan and his opinion ex- 
amined as such but as it relates to the defend- 
ant and not as it relates to a purely imaginary 
person. His opinion must be based upon the 88 
INSANITY AND THE CRIMINAL LAW 
actual human material and not upon some mon- 
strosity created by the legal imagination, to 
be of value. It is obvious that only in the 
former capacity can his services have any real 
value. A hypothetical question twenty thou- 
sand words long that takes two or three hours 
to read and includes all sorts of evidence by 
all sorts of witnesses, some of the alleged facts 
of which are contradictory and all of which 
are given the same value certainly does not 
minister to this end. CHAPTER VIII 
RESPONSIBILITY 
In the law responsibility is dealt with just 
like crime and insanity, as having some kind 
of a nebulous, separate existence. The criminal 
is either supposed to have it or not to have it, 
much as if he might or might not be pos- 
sessed of certain real estate, or some other 
equally tangible asset. Such ways of dealing 
with human beings show an absolute lack of 
understanding of the principles of conduct, 
and belong to the same stage of development 
as the spirit of revenge. To conceive that an 
individual is either absolutely responsible or 
absolutely irresponsible is to fly in the face 
of perfectly patent facts that are in every- 
body’s individual experience and is only com- 
parable to such beliefs of the Middle Ages that 
a person is possessed of a devil or is not pos- 
sessed of a devil, and therefore is or is not a 
free moral agent. 
The way in which the question of responsi- 
bility is resolved in the average criminal trial 
is something like this: The jury listens to the 
89 90 
INSANITY AND THE CRIMINAL LAW 
evidence that is offered in the case, it hears 
something of the history of the crime, the con- 
ditions which led up to it, its actual perform- 
ance, and the behavior of the defendant there- 
after. It learns, also, more or less of various 
surrounding circumstances, so that from a 
rather superficial standpoint the jury, so to 
speak, has the crime framed in a set of events 
which relate to it and which serve to some ex- 
tent to explain it. Now the jury takes all of 
these things into consideration and in doing 
so represents, or stands for, in miniature, the 
body of society of which it is a part. The jury 
represents the minds of the community, and its 
action is binding upon that community, who, 
through the machinery of the courts, has chosen 
it to represent them. Now, having considered 
all these facts, the jury makes up its mind 
whether they think the man ought to be pun- 
ished or not. If they think he ought to be 
punished they conclude him to be responsible, 
and therefore guilty; if they think the cir- 
cumstances are such that they feel that he ought 
to be let off, they find him irresponsible, and 
therefore not guilty. A plea of insanity was 
entered in the trial of a defendant who had 
shot and killed the man who seduced his daugh- 
ter, and although there was not a particle of 
evidence worthy of the name to back up that RESPONSIBILITY 
91 
plea the verdict was in accordance with the plea. 
In other words, the community, through the 
medium of its selected agents, the jury, in this 
way projects its own feelings upon the accused, 
so that from this point of view responsibility 
stands for something which exists in the minds 
of the jury rather than in that of the defendant. 
The adjudication of a person as criminal or as 
insane, as responsible or irresponsible, is thus 
seen to be a reflection upon the person of the 
defendant of the herd critique through the 
medium of the jury. If the antipathetic emo- 
tions are more stirred than the emotions of 
sympathy the verdict is that the defendant is re- 
sponsible, that is criminal. If the sympathetic 
emotions are more stirred then the verdict is 
that he is irresponsible, that is insane.1 In 
general, the type of antisocial conduct which 
is actively, that is, aggressively, directed 
against society calls forth the verdict of “re- 
sponsible,” while the sort of antisocial act 
which is passive, that is, which is more in a way 
to injure the perpetrator than endanger others, 
such as inebriety, is considered to be the result 
of mental disease. That this is the correct 
explanation receives strong corroboration 
1 Of course the terms * ‘ insane ’ ’ and ‘1 criminal ’ ’ are here 
used purely as legal terms, or perhaps as sociological labels 
that have been applied by the courts to certain classes or indi- 
viduals. For a discussion of these terms see my “Principles of 
Mental Hygiene.” 92 
INSANITY AND THE CRIMINAL LAW 
when an individual who is obviously suffering 
from serious mental illness from the medical 
point of view is nevertheless condemned if his 
crime is of a peculiarly heinous character. A 
priest (Case IV, cited in Chapter VI) who cut 
the throat of a young girl who had been his 
mistress and then dismembered the body was 
executed, although there was ample evidence of 
mental derangement and he had, in fact, at one 
time been a patient in a hospital for the 
insane. 
The most serious difficulty in coming to an 
understanding of the question of responsibility 
emanates from the generally accepted belief 
that responsibility is an individual matter, as 
already indicated, a quality which the defendant 
can be said either to have or not to have. Crim- 
inal conduct is a form of conduct which comes 
into expression only in man’s social relations. 
It is conduct at the social level of organiza- 
tion. Just as the cells which make up the 
human body are united to form tissues and or- 
gans and these in turn constitute the organism 
man, so is society constituted of its several in- 
dividual members united in various ways to 
form smaller groups. But just as in the case 
of the organism man the cells that go to form 
it do so only because of the way in which they 
are related and integrated, functioning in co- RESPONSIBILITY 
93 
operation and comparative harmony. Just as 
man is not the mathematical sum of the cells 
that go to make up his body but something 
more, namely, those cells in their various spe- 
cific relations to one another and to the whole 
organism so society is not just the sum of the 
different individuals but the organized sum of 
all the individuals that compose it functioning 
as a whole. Just as, therefore, the function 
or the disturbance of function of a particular 
cell or group of cells of the organism cannot 
be separated and considered apart from the 
organism as a whole so the function or dis- 
turbance of function of particular men or 
groups of men cannot be dislocated from the 
super-organism society of which they are an 
organic part. Criminal conduct is therefore a 
disorder, not at the level of integration of the 
individual but at the individual-society level 
and as such cannot be fully understood if 
thought of solely in terms of the individual.2 
It has been said that every society has the 
criminals it deserves and in this sense it can 
be seen that such a statement is true. Society 
is responsible equally with the criminal. It is 
only by way of such a larger concept as this 
3See my “Foundations of Psychiatry,” Chap. V, “The 
Region of Psychopathology,” Nervous and Mental Disease 
Monograph No. 32 (published by the Nervous and Mental Dis- 
ease Publishing Co). 94 
INSANITY AND THE CRIMINAL LAW 
that the development along the lines indicated 
in this book will become possible. 
The function of the expert should be to bring 
his specialized knowledge to the service of the 
particular issue being tried, and upon the wit- 
ness stand to explain as much in detail as his 
examination permits the mental state of the 
defendant. To this end it is just as illogical 
that the experts for the prosecution may not 
be permitted to see the defendant as it is that 
he may be permitted not to testify, as it is also 
equally absurd that the court should be called 
upon to instruct the jury and should have to 
do so that the failure to testify by the de- 
fendant shall not be considered against him. 
Such a ruling creates quite as illogical and 
philosophically indefensible a situation as that 
already discussed in relation to the hypothetical 
question. The ruling of the court cannot cause 
the fact, that the defendant did not take the 
stand, to cease to exist nor can it destroy the 
effects of that fact upon the minds of the jury. 
It is impossible to put things out of mind, to 
disregard absolutely past events and act as 
though they never had been. It is, however, 
dangerous or at least very misleading to act 
upon the assumption that such things can be 
done and to further assume that acts which 
follow are free from this influence. The court RESPONSIBILITY 
95 
often acknowledges this principle freely with 
reference to some things, as for instance, a 
judge recently dismissed an issue which had 
been on trial before him for many days and 
ordered a new trial because a prominent at- 
torney of the city who died was eulogized in the 
court and it was then brought to the attention 
of the court that he had been a witness in the 
trial then taking place. It was perfectly ob- 
vious to the court that the impression created by 
the eulogy of the deceased witness could not be 
destroyed by a court ruling. Why is it not equally 
obvious in other matters! and why should not 
the methods of legal procedure be purged of 
such unscientific and illogical necessities and 
such indefensible assumptions and hypotheses? 
Action is not always positive, it may be nega- 
tive; it requires as much energy, as much de- 
termination, and sometimes more, not to do a 
certain thing, for example, not to reply to a 
question, as it does to do that thing, and the 
refusal of an individual to comply with a cer- 
tain request can be made the subject of a de- 
duction as to the reasons of that refusal and 
as to the underlying mental state of the indi- 
vidual as accurately and as properly as a com- 
pliance with the request may be used in like 
manner. 
In the present state of affairs, however, a 96 
INSANITY AND THE CRIMINAL LAW 
refusal of the prisoner to testify may well be 
considered as having a certain justification; 
a justification, however, which would be removed 
if the people did the logical thing and showed 
themselves as keenly alive to the protection of 
an innocent man as they are to the prosecu- 
tion of a guilty one. The question of a public 
defender suggests itself for consideration in 
this connection. 
Partial Responsibility.—The whole question 
of responsibility has been considered too ex- 
clusively from the standpoint of the law rather 
than from that of the delinquent. Looked at 
from the point of view of the administration of 
the criminal law, it is certainly much simpler 
to assume that the defendant is either respon- 
sible or not responsible. Such a clear cut dis- 
tinction obviates the necessity for considering 
vexatious details and complicated problems of 
adjustment. Such a point of view is in every 
way analogous to the military concept that a 
soldier is either capable of full military serv- 
ice in any capacity to which he may be assigned 
or else he is not and therefore must be dis- 
charged or retired—he is either one hundred 
per cent efficient or his efficiency is zero from 
the military standpoint. The mere statement 
of the case in these terms carries with it its 
own refutation and as a matter of fact, during RESPONSIBILITY 
97 
the late war, it was soon found that, to dis- 
charge all men from the military service who 
were not competent to render effective service 
in the first line would result in a great depletion 
of military strength, and so necessity forced 
the recognition of different degrees of qualifi- 
cations for service and men who were so con- 
stituted that they simply could not serve in the’ 
trenches were found to be fully effective when 
assigned to some other perhaps less hazardous 
sort of duty. In fact the principle was fully 
recognized when the conscription law was made 
operative only between certain age limits. It 
was obvious that a man of sixty, for instance, 
would in the overwhelming majority of in- 
stances, be unable to withstand the rigors of 
campaigning and that to conscript men of this 
age class would result in an enormous amount of 
energy expended to no purpose for they would 
soon break down and have to be discharged 
or hospitalized without having rendered any 
or at least only a mimimum of service. The 
lost motion incident to such a course of proce- 
dure would have seriously clogged and handi- 
capped the military forces. The same principle 
is also recognized by the criminal law in its 
failure to consider infants as responsible in 
the same sense as are adults, and in the crea- 
tion of juvenile courts. 98 
INSANITY AND THE CRIMINAL LAW 
Such considerations as these to the student 
of the human animal and human behavior are 
but truisms. Whether an individual can effec- 
tively meet the social demands in a given case 
is a function of the nature of those demands as 
set over against the combination of assets and 
liabilities of personality make-up of the indi- 
vidual in question. He may be fully equal to 
meeting them; he may be absolutely unable to 
meet them; he may be able to meet them in 
part only; he may only be able to avoid facing 
them at all, and so escape the test altogether; 
or he may be able to effect some sort of 
compromise which constitutes a partial solu- 
tion. To illustrate these types : the fully effi- 
cient individual is the successful man and good 
citizen; the wholly inefficient individual may 
be idiot, imbecile, or seriously ill mentally or 
physically; the partially efficient individual is 
one who can measure up to moderate stresses 
but breaks when the stress exceeds a certain 
maximum; the individual who escapes the test 
altogether is well illustrated by the hobo type 
and that not inconsiderable group of constantly 
shifting workers who hold a job only for a short 
time and then move on to something else. The 
individuals who effect some sort of compromise 
are of many types; for example, the ineffective 
type of personality lacking the ability for con- RESPONSIBILITY 
99 
tinuity and consecutiveness of effort who, per- 
haps, steals, but uses the proceeds to support 
his family and educate his children. Many so- 
called insane belong in this compromise group. 
To hold all these various groups up to the same 
standard of accomplishment irrespective of 
their several equipments and capacities is in- 
defensible. The law, and society through the 
mediation of the law, cannot accomplish the 
best results so long as it persistently refuses 
to acknowledge the existence of actual facts, so 
long as it continues to operate as if those facts 
really did not exist at all.3 
While the doctrine of partial responsibility 
is not generally specifically recognized by the 
law,4 it nevertheless finds its way into practice 
*For a discussion, from the point of view of a psychiatrist, 
of the question of partial responsibility see ‘1 The Semi-Insane 
and the Semi-Responsible,” by Joseph Grasset, translated by 
S. E. Jeliffe (published by Eunk and Wagnalls Co., New York 
and London, 1907). 
4 While not overtly recognized by the law it finds its way to 
indirect recognition in those cases, for example, in which the 
defense is intoxication. In such cases intoxication has been 
held, not as an excuse, but as material in determining whether 
the accused shall be convicted of a lesser crime than that 
charged. In a decision of the Supreme Court of the State of 
Connecticut it is stated (Carpenter, J., in State v. Johnson, 40 
Conn. 136, 143 (1873): “Intoxication is admissible in such cases 
[prosecutions for first-degree murder] not as an excuse for 
crime, not in mitigation of punishment, but as tending to show 
that the less and not the greater offense was in fact com- 
mitted. ’ ’ 
In a recent case in Utah (State v. Anselmo, 46 Utah 137, 148 
Pac. 1071 (1915), the same principle was brought into opera- 
tion. The defendant was indicted for first degree murder, which, 100 
INSANITY AND THE CRIMINAL LAW 
which is always the rule when the written law 
offends the public conscience, or the public 
standard of justice. In cases in which the de- 
fendant is clearly guilty, unless insane, the 
jury not infrequently takes the bull by the horns 
and brings in a verdict of “not guilty” abso- 
lutely in contradiction of the evidence. I have 
known testimony to be introduced for the 
avowed purpose of proving the insanity of the 
defendant which had absolutely no evidential 
value whatever but which resulted in a Verdict 
of “unsound mind” with the result that the de- 
fendant was sent to a hospital where he stayed 
a few days, was then returned to the court as 
“not insane” and discharged. The defendant 
had shot and killed the man who had seduced 
his daughter. I have known evidence to be in- 
troduced for the expressed purpose of throwing 
under the statute, required premeditation. The medical evi- 
dence, while conflicting, tended to show that the defendant was 
somewhat unsound mentally, with some symptoms of epilepsy. 
He was convicted of murder in the first degree. The Supreme 
Court reversed the conviction on the ground that the jury should 
have been instructed that the mental condition of the defendant 
might negative the required deliberation. The Court said: 
“While the jury found that his condition in that Tespect was 
not such as to affect his mental capacity to relieve him from 
responsibility yet it may have been such as to affect his mental 
capacity to coolly deliberate and premeditate on his acts. The 
jury, therefore, as hereinafter suggested, should have been 
instructed to consider all the foregoing evidence in determin- 
ing appellant’s mental capacity to deliberate and premeditate 
the homicide. While one’s mental condition may not excuse 
his act, it may nevertheless affect the degree of guilt.” (Cited 
by Keedy, Edwin B., ‘ ‘ Insanity and Criminal Besponsibility, ’ ’ 
The Harvard Law Review, Yol. XXX, Nos. 6 and 7.) RESPONSIBILITY 
101 
light upon the state of mind of the defendant, 
whether sound or unsound, which did not serve 
that purpose in the slightest but served as the 
only way to get certain letters written by the 
defendant to the deceased before the jury and 
which showed, in the best possible way, the de- 
ceased’s unjust treatment of the defendant. 
Contrary to all the evidence in the case the jury 
brought in a verdict of “not guilty,” undoubt- 
edly largely because of the sympathy aroused 
in them for the defendant because of those let- 
ters. The defendant had shot and killed a 
man whose mistress she had been for years and 
who was the father of her children. He was 
married but had repeatedly promised to marry 
her if he should ever be free. During all these 
years she had worked assiduously in his behalf 
and his success in life was in no small measure 
attributable to her efforts. When finally his 
wife died he refused to carry out his promise. 
In both of these cases the defendant was clearly 
guilty under the law but in both cases the jury 
simply disregarded the written law out of its 
collective sense of justice. Such possibilities 
of action constitute one of the safeguards of the 
jury system; they should consciously be recog- 
nized as legitimate and made possible .in con- 
formity with the law instead of having to be 
brought about in spite of it. CHAPTER IX 
THE TESTS OF INSANITY 
The test of insanity as laid down in the law 
centers about three matters; namely, the knowl- 
edge of right and wrong, the existence of de- 
lusion, and the presence of an irresistible im- 
pulse. Of course by insanity is meant the legal 
conception notwithstanding the fact that the 
word has come to be used as if it had medical 
meaning. Insanity is purely a legal concept 
and means irresponsibility, or incapacity for 
making a will, or for entering into a contrac- 
tual relationship, or for executing a conveyance 
or what not as the case may be. These tests are 
essentially medical in character. The test of 
delusion and irresistible impulse are obviously 
so while the right and wrong test, although it 
is often defined as a sufficient knowledge to 
know that an act was prohibited by law, easily 
becomes medical when the question is raised 
of a state of mental defectiveness sufficient to 
preclude such knowledge. But, as Keedy says, 
“ these symptoms represent but a small portion 
of the phenomena of mental disease, and they 
102 THE TESTS OF INSANITY 
103 
have no necessary relation to the ordinary legal 
rules for determining responsibility. They are 
simply obsolete medical theories crystallized 
into rules of law.” 1 Thus have medicine and 
the law become inextricably mixed up until it 
is generally supposed that insanity is a medical 
term, in fact, that insanity is a disease which 
it is the business of the law to define and of 
the expert to determine whether the defendant 
has the disease as thus defined and is therefore 
irresponsible and incompetent or has not and 
is therefore responsible and competent. In 
this confused state of affairs lawyers and doc- 
tors talk at each other in the courtroom, each 
using a different language, each approaching 
the problem with different traditions, different 
objects, and neither one understanding the 
other. Little wonder that expert testimony is 
now calculated to lead to confusion rather than 
to clarification. 
However possible it may have been at one 
time for the medical and the legal professions 
to come together on these tests and find in them 
a basis of common understanding, that day has 
long since passed, at least from the standpoint 
of the specialist in mental medicine. The stand- 
point from which he approaches the problem 
1 Keedy, Edwin R.: ‘ ‘ Insanity and Criminal Responsibility, * ’ 
Harvard Law Review, Yol. XXX, Nos. 6 and 7. 104 
INSANITY AND THE CRIMINAL LAW 
of human behavior no longer makes it possible 
for him to be dogmatic and categorical in his re- 
plies to the questions of the lawyers on these 
points. Impulses, delusions, knowledge of right 
and wrong are no longer conceived as concrete 
entities that either are or are not. Man is not 
a mosaic which may have some portion of the 
pattern dropped out indifferently as it were. 
The language of the law, while it might have 
been all right a hundred or two years ago is 
no longer usable by the present-day psychiatrist 
who finds himself quite unequal to thinking 
in such terms and much less able to use them 
exclusively as he is required to on the witness 
stand, for the expression of his thoughts. The 
law is quite unequal to defining an irresistible 
impulse, a delusion, or what constitutes a 
knowledge of right and wrong except by refer- 
ence to a misty, vague, hypothetical “man in 
the street ’ ’2 type of personality which, must 
more or less inevitably, come to be each par- 
ticular one of the twelve jurymen, for such a 
personality has no tangible objective existence. 
All such stuff as the tests are made of are rela- 
aFor example, the judge often instructs the jury that a 
“reasonable doubt” is such a doubt as a reasonable person 
might entertain. Therefore I take it that the ideas of what 
constitute right and WTong would be such ideas as the average, 
reasonable citizen would entertain. Such definitions are mean- 
ingless on their face but in the light of the nature of the law 
and the functions of the jury discussed later in the book their 
significance will become apparent. THE TESTS OF INSANITY 
tive, exquisitely relative, and their relativity 
and their true meaning can only be arrived at 
and appreciated at its true value when con- 
sidered in their proper settings, never by forci- 
bly dislocating them for consideration in the 
abstract. Father Schmidt, (Case IV, Chapter 
VI) when he murdered Annie Aumuller, may 
have possessed a knowledge of right and wrong 
in the sense that he knew it was against the law 
of the land to commit murder, as indicated by 
the fact that he tried to cover up the evidences 
of his act, but nevertheless at the time he drew 
the knife across her throat he thought he was 
carrying out the command of God, he knew that 
he was doing right.3 It is obvious how far 
short the language of the statute is from en- 
compassing such a situation. This whole mat- 
ter will receive further consideration in the 
following chapters. 
Of course the law is not interested in the 
fact of the existence of mental disease in the 
abstract but only in so far as its existence bears 
upon the question of responsibility of the de- 
fendant. If the mental disease was of such 
a nature as to make it impossible for the de- 
fendant to entertain a criminal intent, or to 
know the nature and quality of his act, or to 
* White, William A.: “Comments on the Case of Father Jo- 
hannis Schmidt,” Jour. Am. Institute Crim. Law and Crim- 
inology, Yol. V, No. 1, May, 1914. 106 
INSANITY AND THE CRIMINAL LAW 
know that it was wrong then he is insane in the 
meaning of the law. If his mental condition 
does not produce these results then he is legally 
of sound mind no matter how mentally ill he 
may be from a medical standpoint. The law 
attempts to say when a man is legally respon- 
sible for his acts and only recognizes mental 
disease when it affects his responsibility as that 
responsibility is defined. CHAPTER X 
A CHAPTER OF BLUNDERS 
Before proceeding with suggestions for im- 
proving existing conditions I will cite briefly 
a few cases to show exactly how dangerous anti- 
social individuals are actually disposed of by 
the courts under existing laws and rules of pro- 
cedure. Such an array of cases might naturally 
be indefinitely prolonged and illustrate many 
more phases of the issues involved, legal, 
medical, and social. Instead, however, of at- 
tempting such a voluminous exposition I will 
only present what I conceive to be sufficient 
evidence to show how completely the law fails 
to meet present day social needs and scientific 
demands in dealing with the criminal classes. 
Such illustrations are within the experience of 
every man who has to do with this group of 
cases. 
Case V. A private in the Army shot and 
hilled his captain in cold blood. He then de- 
veloped a defense reaction (victim not dead) 
and is sent to St. Elizabeth’s Hospital. Several 
years later pressure is brought to bear by his 
107 108 
INSANITY AND THE CRIMINAL LAW 
relatives to have him transferred to a State 
Hospital. Letters are exhibited from the Su- 
perintendent of that hospital expressing will- 
ingness. He starts for the hospital under 
guard; while crossing an intervening county the 
party is met by lawyers who serve habeas cor- 
pus papers and the patient is discharged by 
the County Judge to his relatives. 
This patient was a twenty-nine year old sol- 
dier who started in the army and did very well 
for three months, being promoted to Corporal 
at the end of that time. After this his com- 
panions and officers began to notice a change in 
him. He began to fall short of his previous 
efficiency and was negligent in his duties. 
Finally, he was tried by a summary court- 
martial and was fined $20. He then applied 
several times for transfer to another post, but 
it was refused by Captain R. A few days after 
this he went to his room, took out his revolver 
and five rounds of ammunition and put them 
in his pocket. He went to the basement, loaded 
his gun and put it in his hip pocket. His idea 
was to hunt up a soldier who he thought had 
taken $2 from him. There had been shooting 
in a nearby town a day before which put 
the idea of shooting in his mind. While he was 
looking for this soldier he was told that Cap- 
tain R. wished to see him. WTien he appeared A CHAPTER OF BLUNDERS 
109 
before the Captain, the Captain stated that it 
had been reported to him that he had overstayed 
a pass and also that he had been seen tearing 
off his chevrons. Patient denied both of these 
charges and said he became very angry at them. 
According to subsequent accounts of the affair 
Captain R. then said, “That is all, Corporal.” 
The patient said, “Sir, I would like the Cap- 
tain’s permission to resign as a non-commis- 
sioned officer.” Captain R. said, “Very well, 
that will do, Corporal, that is all. ’ ’ The patient 
stepped back a pace and said, “No, it isn’t all, 
Captain,” drew his gun and shot at Captain 
R., missing him. The first sergeant and com- 
pany clerk started towards the patient and he 
shot and wounded both of them. In the mean- 
time the Captain had grappled with him and 
in the struggle he was shot in the neck and fell 
on the floor paralyzed. He was operated on 
and ten days later died, but the sergeant and 
company clerk recovered. After the shooting 
the patient was placed in solitary confinement 
and was later told that Captain R. had died. 
He soon began to evolve delusions, centering 
on the idea that Captain R. had only “played 
dead ’ ’ and was having the patient held for mur- 
der in order to get even with him. Although 
it so happened that from the window in the 
guard house the patient had been able to get 110 
INSANITY AND THE CRIMINAL LAW 
a glimpse of the Captain’s funeral procession 
on its way to the cemetery, he refused to accept 
this as evidence, but insisted that it was a mock 
funeral. The patient was tried by court- 
martial and evidence was brought out stating 
that the patient had been peculiar several 
months prior to the shooting. An alienist testi- 
fied that he was suffering from paranoid 
dementia precox. It also appeared at this trial 
that there was no reason at all for the crime as 
Captain R. was a kind-hearted, fatherly sort of 
officer, who was well liked by all of his men. 
Also the patient became quite incensed against 
the lawyer who had been employed for his de- 
fense and accused him of being in a conspiracy 
against him. The verdict was imprisonment 
for life, and patient was sent to the peniten- 
tiary, where he continued to maintain delu- 
sional ideas and after about two years was sent 
to St. Elizabeth’s Hospital. At St. Elizabeth’s, 
he continued to maintain that Captain R. was 
alive and there was a great deal of emotion 
when the subject was touched upon. He re- 
mained in St. Elizabeth’s Hospital about three 
years during which time he showed no essential 
change in his mental condition. A great deal 
of pressure was brought to pardon him; it was 
alleged that he was insane and was so at the 
time he had committed the crime and that his A CHAPTER OF BLUNDERS 
continued confinement with criminals prevented 
his recovery. The relatives and friends of the 
patient stated that if he were pardoned it was 
their intention to transfer him to a State Hos- 
pital near his home where he could remain until 
the Superintendent of that Hospital would dis- 
charge him as recovered. They stated that they 
believed the removal of his sentence and his 
transfer to a hospital near his home where he 
could be visited by his relatives would have a 
beneficial effect on him. In reply to inquiries 
from the Adjutant General’s Office about this, 
the hospital replied that he was suffering from 
dementia precox, that he was very dangerous 
and that it was extremely doubtful whether or 
not pardoning him would have any favorable 
effect upon his psychosis. In spite of this re- 
port the pardon was granted and attendants 
were furnished to take him from St. Elizabeth’s 
Hospital to a hospital near his home. To get 
to this hospital the party was obliged to cross 
a county in which the patient lived. At the 
county line the patient was met by a sheriff 
armed with a writ of habeas corpus and was 
taken before the Judge, the latter promptly 
ordering the patient discharged as he had not 
been adjudicated insane in that county. The 
patient was taken directly to his home and his 
subsequent history is unknown. 112 
INSANITY AND THE CRIMINAL LAW 
This is the sort of thing that happens over 
and over again. The really socially important 
elements in the case are entirely lost sight of 
and the case is decided upon some legal techni- 
cality—in this case upon the question of juris- 
diction. Unfortunately it always seems to be 
the anti-social element that benefits by these 
technical decisions. A somewhat similar case 
is the following. 
Case VI. A feeble-minded colored boy was 
taken into the army and placed on sentry duty 
on a post in a wooded suburb. He comes upon 
a white couple in amorous preliminaries, shoots 
and kills the man and makes proposals to the 
woman. When the latter runs away he shoots 
and kills her too. After confessing and denying 
the crime several times, he evolved a stereo- 
typed denial and persisted in it. He was sent 
to Saint Elizabeth’s Hospital for treatment. 
Every reviewing officer up to and through the 
Adjutant General approved the findings of the 
court martial which were guilty of murder in 
the first degree. The President disapproved 
the findings solely on the ground of his mental 
condition. After about two years he was dis- 
charged by habeas corpus and went free into 
the community. 
This patient was a twenty-two year old illit- 
erate negro. As a boy he lived in a rural com- A CHAPTER OF BLUNDERS 
113 
munity down south and only had a few months 
schooling. After leaving school he worked as a 
laborer at various places and was finally in- 
ducted into the military service at the time the 
United States entered the Great War. After 
going through his preliminary training he was 
stationed at Camp Upton, New York. Shortly 
after enlisting he was put on sentry duty. His 
post was in a lonesome suburb of New York, 
which was a favorite trysting place for couples 
from the state. One evening the patient caught 
sight of a man and a woman approaching the 
woods where he was stationed. He was fairly 
sure from what he had heard about the place 
and from the actions of the couple that they 
were there for an immoral purpose. The 
patient became excited sexually, drew his gun 
and fired, killing the man. He said afterwards 
that his idea at the time was that if he got rid 
of her male companion the woman would yield 
to him. He approached her and made an in- 
decent proposal to her. She was naturally ter- 
rified and started to run towards the woods. 
He fired and killed her also. Immediately after 
this several sentries came running up, having 
been attracted by the shots. Later, at the 
court-martial, testimony *was given by two of 
these soldiers to the effect that when they ap- 
proached the spot they saw a man on the 114 
INSANITY AND THE CRIMINAL LAW 
ground and a woman running towards the 
woods. They saw a soldier, who they after- 
wards found was the patient, bring his gun to 
his hip and shoot the woman who fell. The 
soldier then started to run away but turned 
when called by name and begged them to say 
nothing about it. The corporal of the guard 
immediately after the occurrence lined up all 
the soldiers and found that the patient’s gun 
had recently been discharged and that there 
were two empty chambers in his revolver. 
The patient himself was very nervous although 
he denied at first any connection with the crime. 
The patient and two other soldiers were put 
under arrest and grilled separately about the 
crime. A lieutenant to whom the patient was 
very much attached, talked to him about an 
hour or so and tried to get him to admit his 
guilt but the patient refused to do so. The 
Lieutenant, who appeared to understand the 
psychology of this type of man very well, 
picked up his cap and said “All right, if you 
won’t talk, I am through with you and all the 
negroes in the world. Don’t come to me and 
ask me for anything.” At this the patient 
grasped the Lieutenant’s arm and said “Don’t 
go and I will tell you everything.” He then 
confessed the murder and told of its sexual 
motivation. The patient was then held by New A CHAPTER OF BLUNDERS 
115 
York authorities and to the police he repeated 
his confession. He was turned over to the army 
authorities and tried by court-martial. At the 
trial evidence was brought out directly con- 
necting him with the crime. Aside from his 
own confession and the circumstantial evidence 
which pointed to him, there was the direct testi- 
mony of the two soldiers who had witnessed at 
least part of the affair. Before the trial was 
completed, however, it was thought advisable 
to inquire into the patient’s mental condition. 
This was done and it was reported that he was 
an imbecile. The trial was then resumed and 
the patient was found guilty of the crime and 
was sentenced to be hanged. This verdict was 
reviewed and approved by various military 
officials up to and including the Adjutant 
General and Secretary of War. When it was 
referred to the President, however, he disap- 
proved solely on account of the patient’s mental 
condition. The latter was then transferred to 
St. Elizabeth’s Hospital where according to the 
usual military routine, he was shortly dis- 
charged from the Army. At the hospital, when 
the patient found he was not to be hanged, he 
confessed his guilt to the physician, stating that 
he did the act on the impulse of the moment 
and would never do such a thing again. Later 
on, however, he denied his guilt and fabricated 116 
INSANITY AND THE CRIMINAL LAW 
a story of the crime, which he repeated in a 
stereotyped manner whenever asked about it. 
This was to the effect that he and some other 
soldiers found two bodies in a field and he was 
accused of killing them because the other sol- 
diers did not like him. He stated that he had 
confessed because he thought by so doing he 
could get out of jail and back to his company. 
This patient under ruling of the War Risk 
Bureau was granted compensation at the rate 
of $80 a month, which accumulated to his 
credit. After two years in the hospital he be- 
gan to get impatient to be discharged and got 
a lawyer to look into his case. This lawyer was 
duly informed as to the circumstances of the 
case, being told that the patient was an imbecile 
who under the influence of sexual excitation had 
committed one crime already of whose serious- 
ness he had hut a vague appreciation. He was 
told that although his behavior in an institution 
had been good there was no guarantee that he 
would not again commit some sort of a sexual 
crime if given his freedom. In spite of this a 
petition for a write of habeas corpus was issued 
and the case came into court. Ordinarily the 
Judge would have ordered him discharged di- 
rectly in view of the fact that he had not been 
adjudicated insane in the District of Columbia, 
hut in this particular case a guardian had been A CHAPTER OF BLUNDERS 
117 
appointed for his funds about a year after his 
admission which had necessitated the returning 
of a formal verdict of unsound mind. The case 
therefore went to a jury and the patient was put 
on the stand. His lawyer represented him as 
an ignorant country negro who had been sub- 
jected to the “third degree” and had thus been 
browbeaten into confessing a crime he had 
never committed. The patient, of course, wore 
his army uniform on the stand and was found 
of sound mind by the jury. He was then turned 
loose in a Southern community with about 
$1,500 and the intelligence approximately of 
an eight-year-old child. Further comment is 
unnecessary. 
Case VII. This soldier opened fire upon a 
group of soldiers and hilled two. The civil 
authorities turned him over to \the military 
authorities who did not try him hut sent him to 
Saint Elisabeth’s Hospital. After a few years 
(while still extremely paranoid) he was dis- 
charged upon habeas corpus. 
This patient was a thirty-seven-year-old sol- 
dier who served quite a long time in the army 
with a fairly good record. For years he had 
been somewhat addicted to alcohol and in the 
Fall of 1916, not having received an expected 
promotion, he began to develop paranoid ideas 
about his comrades. He thought they were cir- 118 
INSANITY AND THE CRIMINAL LAW 
culating stories about him, accusing him of ab- 
normal sexual habits and so on. He also 
thought that they were responsible for a rumor 
that he was a “nut,” in the hope that this would 
actually drive him crazy. He began to drink 
more heavily and this naturally increased his 
difficulties. Finally, one morning he made up 
his mind that he would “get” some of his perse- 
cutors. He took his gun, loaded it and went into 
the squad room which was full of soldiers. He 
pointed it at these men and said they were a lot 
of low down dogs and he was going to kill them. 
As the assemblage dispersed in haste he fired, 
killing two men. He then started on a search 
for another man who he thought was concerned 
in his persecutions. He was arrested and 
turned over to the civil authorities, who did not 
try him on account of his evident mental condi- 
tion. They turned him over to the military 
authorities who found him insane and sent him 
to St. Elizabeth’s Hospital. He remained at 
that hospital four years during all of which 
time he exhibited delusions of persecution, 
accompanied by auditory hallucinations. He 
thought the attendants and officials of the hos- 
pital were circulating stories about him, accus- 
ing him of these same sexual offences. He be- 
lieved that everyone in the hospital from the 
Superintendent down was enlisted in a con- A CHAPTER OF BLUNDERS 
119 
spiracy against him and that they would stop 
at nothing to retain him in the institution. 
Several months after being admitted to the 
hospital, he was discharged from the Army as a 
matter of routine, and as this discharge oc- 
curred after the declaration of war by the 
United States, he was awarded compensation at 
the rate of $80 per month which accumulated 
during his stay in the hospital. After several 
years he began to realize that the free expres- 
sion of his delusional ideas was unwise from 
his standpoint as it gave the physician material 
to quote when he demanded his discharge. He 
therefore began to deny these things although 
occasionally when a physician asked him about 
his difficulties he would make some complaint 
along the old line. Finally after four years in 
the hospital he succeeded in getting a lawyer 
interested in his case, his funds at that time 
amounting to between three and four thousand 
dollars. This lawyer was informed of the dan- 
gerous nature of his mental trouble; that he 
had already killed two men and might very 
easily kill some one else if turned free. How- 
ever, the application for a writ of habeas 
corpus was duly made and as usual the Judge 
ordered him discharged owing to the fact that 
he had not been declared insane in the District 
of Columbia. In view of the fact that his case 120 
INSANITY AND THE CRIMINAL LAW 
was considered such a dangerous one the Sani- 
tary Officer of the District of Columbia was 
advised of the matter and immediately upon 
the patient’s discharge he was arrested on a 
warrant, charging him with insanity and com- 
mitting him temporarily to the Washington 
Asylum Hospital for observation. His lawyer 
immediately demanded his release. The Cor- 
poration Counsel of the District of Columbia 
was consulted and he ruled that if tho case 
should come before a jury the physicians would 
not be allowed to testify to any of the delusional 
ideas which the patient expressed freely during 
his stay in St. Elizabeth’s Hospital, but would 
be obliged to confine their evidence to data 
which had been accumulated since his discharge 
from the custody of the hospital. As this latter 
occurred only a week previous and as the 
patient had since refused to talk about any of 
his paranoid ideas, it was felt by the Superin- 
tendent of the Washington Asylum Hospital 
that he could not be held. He was therefore 
discharged and went to his home in the South. 
He was, of course, very ill mentally and it was 
thought by physicians who knew him that any 
unusual difficulties with which he might meet 
would be very likely to result in anti-social ac- 
tions. 
Case VIII. This Navy man developed gen~ A CHAPTER OF BLUNDERS 
121 
eral paresis and was sent to Saint Elizabeth’s 
Hospital by the Secretary of the Navy. He 
eloped once, went into a bank in the city where 
he was unknown and tried to borrow money. 
Later he became excited and threatened to kill 
his physician. He was discharged by habeas 
corpus because he had not been legally adjudi- 
cated in this jurisdiction. 
This was a thirty-four-year-old petty officer 
in the Navy. He was admitted to the hospital 
with what was quite obviously general paresis. 
His condition had become evident to his superior 
officers a month or two previous to his admis- 
sion when he had complained of vertigo, head- 
ache and depression. He had been unable to 
perform his work satisfactorily and became 
tired very easily. He was sent to the Naval 
Hospital first where, on account of unmistak- 
able symptoms at neurological, mental and 
laboratory levels, together with a history of a 
chancre eight years before, he was promptly 
transferred to St. Elizabeth’s Hospital. At 
the latter hospital the diagnosis was confirmed, 
practically all of the usual neurological signs 
of organic brain disease being present. Labora- 
tory examinations showed the unmistakable 
presence of general paresis. Mentally he was 
quite depressed, took no interest in anything, 
remained in bed and led a vegetative existence. 122 
INSANITY AND THE CRIMINAL LAW 
After some months the depression passed away 
and he became somewhat elated and somewhat 
excited. He heard imaginary voices telling him 
of future happiness and spoke of being one of 
the best officers in the Navy. He would refer 
to the doctor as his foreman. He became more 
and more excited and finally escaped from the 
hospital and went to visit his wife in town. 
She was quite alarmed at his conduct. With 
her assistance he was returned to the hospital. 
A week later he again ran away. Dressed in 
old hospital clothing, he went into one of the 
leading city hanks and asked to borrow $100.00. 
They got in touch with the hospital and he was 
returned. He next assumed a paranoid atti- 
tude towards his physician, stating that he was 
being kept from his wife and that he would kill 
the physician. He continued to give expression 
to this threat and stated that he knew the 
physician’s residence in town and that he ex- 
pected to escape from the hospital and go to 
the doctor’s home and carry out his threat. He 
was quite irritable and abusive and constantly 
attempted to escape. He finally got in touch 
with a lawyer and instructed the latter to ask 
for a writ of habeas corpus. This the lawyer 
proceeded to do although the condition of the 
patient was explained to him. The hospital 
made a return to the writ outlining the A CHAPTER OF BLUNDERS 
123 
patient’s condition, relating the threats of vio- 
lence made by the patient and stating specifi- 
cally that the disease from which he was suf- 
fering was absolutely incurable, terminating in 
death within a few years. When the case was 
presented in court, no testimony was heard and 
no inquiry was made by the judge into the 
mental condition of the patient, but the matter 
was decided on a purely legal point which was 
as follows: That this patient was sent to St. 
Elizabeth’s Hospital by the Navy Department 
and after a diagnosis of mental disorder was 
discharged from the Navy. As he had not been 
declared insane by a court in the District of 
Columbia, the judge held that there was no 
authority for detaining the man and ordered 
him discharged into his own custody (this is 
the same decision, based on the same legal 
point which has been made in many other cases, 
varying from mild mental disorder to danger- 
ous paranoia). The patient was necessarily 
given charge of his funds, amounting to nearly 
$1000, and set out to visit his wife in another 
city, she, by the way, being in great fear of him. 
The inadequacy of the law to cope with men- 
tal disease and the consequences of this inade- 
quacy as expressed in money and litigation, to 
say nothing of the annoyances and harassments 
of scores of persons, is shown briefly in thp 124 
INSANITY AND THE CRIMINAL LAW 
following case. If this man’s mental condition 
had been understood early in his career and 
he had been adequately dealt with, all these 
results could have been prevented. 
Case IX. This man was a litigious paranoiac, 
referred to in Maryland law hooks as the King 
of Litigants. He obtained many thousand dol- 
lars’ worth of judgments, some fraudulently 
and some by default. Among others he ob- 
tained judgments by default against the Adams 
Express Co. amounting to a million dollars. 
This patient was a sixty-four-year-old physi- 
cian who was admitted to Saint Elizabeth’s 
Hospital in 1907 as the result of a trial for per- 
jury at which he had been found guilty; while 
awaiting sentence he was found insane by the 
Court. This trial was the climax of a long life 
of litigation. In fact, his case was so striking 
that it has since been used in text books on law 
and medical jurisprudence. The evidence at the 
trial showed that for at least thirty-three years 
this man had been engaged in law-suits. 
Among the evidences of his litigious activities 
unearthed by the Court the following may be 
mentioned: he had obtained 1,296 magistrate’s 
judgments amounting in the aggregate to 
$127,836 and $2,348 in costs. In 1877 he had 
obtained 619 judgments against the American 
Express Company amounting to about $50,000; A CHAPTER OF BLUNDERS 
125 
these were later set aside by the higher court. 
Later on he obtained other judgments against 
the same company, amounting to approximately 
one million dollars. It was his habit to settle in 
a county, obtain the names of various residents 
and secure judgments for various sums by de- 
fault against them. Quite often the defendants 
did not even know about the action until judg- 
ment was given. Not content with these activi- 
ties he forged documents and obtained many 
judgments in this way. It was one of these 
forgeries which finally resulted in his trial at 
which his other activities came to light. When 
examined at Saint Elizabeth’s Hospital he 
showed a well organized and very extensive de- 
lusional system, the ramifications of which ex- 
tended back to the Civil War; he said that he 
had caused the capture and execution of a Con- 
federate spy and since that time the friends and 
relatives of this man had been persecuting him. 
Some years later he had some difficulty with 
the American Express Company and sued them 
for $50,000. When this trouble was sifted down 
it was found that the original disagreement was 
over a charge of 40 cents on a prepaid package, 
but the patient has a thousand plausible 
reasons why the damages finally amounted to 
the sum named. In Saint Elizabeth’s Hospital 
he was extremely suspicious, stayed in his room 126 
INSANITY AND THE CRIMINAL LAAY 
with the door closed and would only open it a 
crack to talk to the physician. After about a 
year in the Hospital he was allowed to go on a 
visit to Ohio with his brother; he did not return 
voluntarily but was apprehended and brought 
back. At this point he got into touch with a 
firm of lawyers who filed a petition for writ of 
habeas corpus, claiming various irregularities 
in his commitment and detention. The Court 
denied this writ and the lawyers appealed 
from the decision. However, the Court of 
Appeals sustained the lower Court. At this 
time the patient, who was already showing 
signs of senile deterioration, began to develop 
grandiose ideas of an absurd nature and at- 
tempted to deceive those about him by the most 
childish ruses. He lived several years longer, 
during which his mental condition grew rapidly 
worse and he finally died in the Hospital. In 
Maryland legal circles he is known as the King 
of Litigants. 
And finally I will give two cases very briefly 
but in sufficient fullness to indicate the enor- 
mous mass of material which each really in- 
cludes. The account as here given merely 
touches the salient features. These are given 
just to indicate how utterly hopeless it is to ex- 
pect the present machinery of the law to either 
know adequately the material with which it A CHAPTER OF BLUNDERS 
127 
deals or deal with that material in any effective 
way other than simply by confinement or execu- 
tion neither one of which are calculated to be 
curative of social ills or constructive of indi- 
vidual delinquents. 
Case X. An Austrian serving a sentence of 
ten years for violation of the Mann Act. He 
professed to have royal blood in his veins and 
told long, phantastic stories illustrative of his 
“altruistic monomania” which had so often 
gotten him into trouble. He called himself 
“Count.” 
This patient was a white male aged thirty- 
four, who was admitted to Saint Elizabeth’s 
Hospital in 1914 from a United States peni- 
tentiary where he was serving a ten-year sen- 
tence for violation of the Mann Act. The 
specific offense charged against him was that 
he had carried a young girl from Chicago into 
Iowa and was endeavoring to initiate her into 
a life of prostitution. The patient was an in- 
telligent-appearing Austrian who spoke English 
and German fluently and who also had a fairly 
good acquaintance with French and Italian. He 
was well educated, prepossessing in appearance 
and quite charming in manner. He had trav- 
eled widely and was quite sophisticated. He 
showed the greatest willingness to discuss, not 
only the details of the trifling difficulty with the 128 
INSANITY AND THE CRIMINAL LAW 
authorities which he was then having, but he 
was quite ready to give his entire life’s history, 
which, as he told it, wTas quite mysterious and 
romantic. He confessed that he had gotten in 
trouble several times in the past through mis- 
understanding of his motives by sordid-minded 
persons. It seemed that he had always suffered 
from what he called “ superaltruistic mono- 
mania,” which led him to befriend the destitute 
and oppressed, even at the expense of great 
personal inconvenience and the free expendi- 
ture of his time and money. Occasionally per- 
sons were jealous of his magnanimity and 
made trouble for him, and now and then the 
police interpreted his actions by some base 
standards of their own. At the request of the 
physician he wrote out what he referred to as 
a brief account of his life. It is entirely too 
long to quote in full, but parts of it will be 
sufficiently illustrative: 
“My father, Count Gera Brunswick de 
Corompa, Imperial and Royal Chamberlain to 
his Majesty the Emperor of Austria, did not 
live on very good terms with his wife Josepha 
born, Countess Dym von Streter, at the time I 
was born in Messina. As the Austrian Law 
says that in a case of divorce girls shall remain 
with the mother and boys with the father, my 
mother decided to keep my birth secret. After A CHAPTER OF BLUNDERS 
my birth she gave me in charge of an old friend 
of hers, a lady with the name Layton who was 
an American citizen and lived at that time in 
Messina. Shortly after my birth my mother 
obtained a divorce from my father and I re- 
mained with Mrs. Layton and was brought up 
as her son. My real mother deposited in a 
bank enough money under my name and it 
was from the interest on that sum my educa- 
tion was paid for. My first English I learned 
from Mrs. Layton; French and German from 
a governess; Italian in Messina where it is 
the native language. Mrs. Layton was rich 
and loved me as if I had been her real child. 
The interest on the money deposited for me 
was considerable and so it came that my educa- 
tion was an almost princely one. Mrs. Layton, 
my foster mother, surely meant well but I have 
to sutler now all my life for it. 
“At fourteen years I had a tutor who trav- 
eled with me all over Europe and who instructed 
me privately. My examinations I took every 
year at some public school. At nineteen years I 
took my examination as to fitness for some 
university. And at this time my life story 
started. I meet with the first great grief, I 
learned for the first time that it is not pos- 
sible to buy everything with money. 
“While on vacation after my examination I 130 
INSANITY AND THE CRIMINAL LAW 
met in Portschach and Wortersei which is a 
fashionable summer resort, a girl with the 
name Lena Edle von Daubeck. I had left my 
tutor behind, she was the first girl I meet and 
my romantic character, my easy excitable nerv- 
ous system overpowered me and I fell in love, 
in love as deep as a man can fall. A fewT months 
after that I was engaged to her and we were to 
have been married on the 23rd of April, 1899. 
On the 22nd of April my beautiful beloved bride 
was riding horseback with me in the park, when 
at once her horse became frightened, threw her 
off, dragged her for a distance and then left her 
behind a motionless, bleeding mass. I saw 
right away that she was dead, lost to me, lost 
forever—there was but one way not to lose her, 
that was to follow her soul and that as quickly 
as possible. There, in the Park beside her I 
took my pistol and shot myself. The public 
that had gathered stopped me and then I do not 
know what happened. I only remember that I 
was ill a long time and then I was ill again and 
they told me Lena was alive and then I found 
out she was not alive and then I was ill again. 
And then I was in the nerve Sanitorium in S. 
and when I left my foster mother traveled with 
me to France and England. We went to Egypt 
and Constantinople, to Zanzibar and Ceylon, but 
I could not forget my poor dear dead Lena. A CHAPTER OF BLUNDERS 
131 
And then we went to Transylvania and there I 
met Paula; she was a girl of good but poor 
family; she was so poor and I so rich that I 
pitied her, so I baptized her Lena and married 
her. I went with her to Vienna and Paris and 
London to show her the world. She was like a 
child and happy about everything new she saw 
and I was so glad that I could show and explain 
to her everything. Then we traveled to New 
York and from there to North Carolina where 
I had bought a piece of land. But I did not like 
to stay in the country, nor did my wife, so we 
sold the land. We started traveling and visited 
Atlanta, New Orleans, San Antonio, Galveston 
and finally back to New York again. There we 
met a family of artists who had come over with 
us on the same steamer from Europe. They 
were married people, had children and seemed 
very respectable. My wife went much to their 
apartments and one evening, it was on Novem- 
ber 10,1905, when I went to fetch my wife from 
there they told me they would leave the next 
day for London where they had an engagement. 
They asked me if I would help to pack their 
trunks and I did so. At two in the morning the 
trunks were all packed and the lady invited me 
and my wife for a last tea. In the morning I 
woke up and felt so bad, the room was empty 
and the landlady told me they were all gone and 132 
INSANITY AND THE CRIMINAL LAW 
my wife with them; I did not believe it and 
went home and all my tranks were gone and 
then I saw that also my money and my watch 
and all was gone and I hurried to the docks 
and came just in time to see the steamer leave 
the dock, on board my wife, my beloved Lena. 
I thought I would die but I did not. I started 
to think, as it was evident to me that these 
people had kidnapped my innocent Lena. I 
had no money but I had to follow them some 
way. It was Saturday and I was helpless. 
That night I slept on a bench in Union Square 
and then came Sunday and then Monday. And 
my wife was gone and I alone, left behind, and 
she in the hands of bad people. And I went to 
Battery Park and looked at the water that 
separated me from her. On Monday while 
walking on Broadway I saw near the Custom 
House a small agency where they wanted men 
to work their way to London. I had but a few 
dollars and I was ashamed because I thought 
everybody knew it; it was the first time in 
my life that I was short. But I went to that 
agency and told them my story and wept and 
gave them all I had and they put me on board 
the steamer and I worked my way to London. 
My first work in life, and hard hard work. But 
I knew my Lena was in danger and I had to 
do it. When I reached London through the A CHAPTER OF BLUNDERS 
133 
Express Company I found out that the artists 
with the big trunks had gone to a place near 
Leicester Square so I went there. It was a 
hotel for artists where they had stopped 
and when I reached the place I nearly fainted. 
I knew my sufferings my terrible grief was 
over. I knew I would find there my wife my 
Lena. And so I went there and asked for them 
and the proprietor told me he knew them and 
also my wife and that they had left two days 
ago, on the 25th of November for Cape Town 
in South Africa.” 
In his own narrative the patient goes on to 
state that he went to Cape Town and found 
posters there advertising a cheap burlesque 
show in which his wife was featured. He 
describes his emotions at length and tells how 
he waited for her at the stage door and “my 
wife came out laughing and happy with a couple 
of other girls. I stepped near her and said 
simply ‘Lena.’ She gazed at me—and 
fainted.” He then tells how he took his wife 
with him to various places and how his family 
finally obliged him to divorce her. He then 
states that when his real mother died he was 
acknowledged as a Count and had plenty of 
money to spend. He did not care, however, for 
the usual pleasures of the nobility but spent his 134 
INSANITY AND THE CRIMINAL LAW 
money helping poor girls in distress. For 
example, he picked up a poor little bare-footed 
match girl, christened her Lena, and bought her 
all sorts of luxuries. Then he took her travel- 
ing with him merely to astonish her by showing 
her the world. Unfortunately she had a mother 
who attempted to blackmail the patient and 
when she was unsuccessful at this put the mat- 
ter in the hands of the police, so that he was 
arrested in London and the girl taken away 
from him. The charge against him was not 
pressed but the girl was removed to a convent 
in Austria, from which he later abducted her. 
He then took her traveling in Turkey, Greece, 
Egypt, etc. Finally he was again arrested 
charged with her abduction, but claims that he 
was given a nominal sentence. After his re- 
lease it was found that he was bankrupt (due 
to many circumstances too lengthy to give 
here). He then went to America to make a 
fortune again, leaving his Lena with a private 
family. After a time he met another poor girl 
who was suffering on account of her poverty. 
He adopted her and named her Lena, finally 
marrying her. He was arrested in Iowa with 
this girl, who then lied about him and got him 
convicted. He appealed to the Austrian Con- 
sul but the latter was inefficient and merely 
hired a lawyer who took no interest in the case. A CHAPTER OF BLUNDERS 
135 
This is a very brief account of the patient’s 
own story, which fills nine or ten typewritten 
pages. During his stay in the Hospital he con- 
tinued to maintain that he belonged to the 
nobility and that if the Austrian legation would 
look up the matter they would have him freed 
at once. Finally some members of that Lega- 
tion were notified and came out to see the pa- 
tient. One of them immediately recognized him 
as a prominent Austrian but his eminence was 
as a crook. His record was looked up and it 
was found that he was a well known confidence 
man and among other activities had made a 
specialty of becoming acquainted with poor 
girls and inducing them to run away with him, 
later selling them to houses of prostitution. He 
was not at all abashed when confronted with 
this record, but absolutely denied being the 
person in question, saying that this was an 
effort on the part of the authorities to justify 
the unjust prosecution by which he had been 
put in prison. After lengthy observation it 
was decided that he was not suffering from any 
acute mental disorder but belonged to the class 
of constitutional psychopaths, showing espe- 
cially criminal tendencies and pathological 
lying. He was accordingly transferred back to 
the penitentiary to finish out his sentence. 
The moment such a person as this is let out 136 
INSANITY AND THE CRIMINAL LAW 
of prison his anti-social activities begin. Why 
let him out? 
Case XI. A frontiersman* of tainted heredity 
kills a man in a fit of passion. Under the 
stress of subsequent circumstances he becomes 
psychotic and is sent to St. Elizabeth’s Hospi- 
tal, where he recovers. He is tried, convidted 
of first degree murder, and sentenced for life; 
he is sent to the penitentiary and breaks down 
again. It takes him five years to recover the 
second time, but he finally does so and is re- 
turned to prison. 
A white male, aged forty-eight years, who is 
serving a life sentence for murder. One brother 
and one sister died of tuberculosis. Another 
sister and two maternal aunts were insane. 
Father alcoholic. Patient has always been re- 
garded as rather sickly. Had usual diseases of 
childhood and had been subject all his lifetime 
to frequent headaches. His school career was 
very irregular in character and he did not go 
beyond the elementary subjects. Socially he 
belonged to a very ordinary stock of frontiers- 
men and his chief occupation was farming and 
certain minor speculations. He apparently led 
an honest and more or less industrious life. 
Married in 1886, his conjugal career is un- 
eventful. In March 1921 he moved to Adding- 
ton, Indian Territory. This was a newly estab- A CHAPTER OF BLUNDERS 
137 
lished frontier town and he had bought, some 
time previously, several lots there, intending 
to establish himself in the lumber business. 
Soon after this he got into some financial diffi- 
culty with a town site boomer and finally, in a 
fit of passion, shot and killed the latter and 
wounded a relative of his own. He was ad- 
mitted to the Government Hospital for the In- 
sane (St. Elizabeth’s) December 13, 1901, from 
the Indian Territory. From the medical cer- 
tificate which accompanied him on admission it 
appeared that soon after the commission of the 
crime the patient began to show evidences of 
insanity by incoherent talk, false ideas, nerv- 
ousness and outbursts of vicious excitement. 
Later this was followed by mutism, refusal to 
eat and stupor. On .admission to the hospital 
he was in a deep stupor, absolutely oblivious to 
everything about him. Eyes were wide open 
and staring, pupils dilated, voluntary move- 
ments markedly in abeyance. He was mute, 
except for an occasional incoherent mumbling 
to himself. He evidenced no initiative in feed- 
ing himself, but swallowed food when it was 
placed in his mouth. Habits were very untidy; 
involuntary evacuations of bladder and rectum 
occurred. His mental content could not be de- 
termined at the time, as his replies were indis- 
tinct and monosyllabic, and were obtained only 138 
INSANITY AND THE CRIMINAL LAW 
after much effort. He appeared to comprehend 
what was wanted of him, although this was not 
absolutely certain. His perception was very 
dull, ideation slow and laborious. His attention 
could be gained only with much effort and he 
had to be aroused first from a more or less com- 
plete stupor. Spontaneous speech was almost 
wholly absent, but occasionally he would utter 
a word or two about his wife and children. 
No delusions or hallucinations could be elicited. 
Physical examination showed him to be quite 
thin and emaciated. Gait slow and un- 
steady. Voluntary movements retarded. Knees 
trembled and knocked against each other. No 
paralyses or paresis noted. Marked general 
tremors were occasionally seen. Musculature 
well developed but flaccid. All deep reflexes 
diminished. Cremasteric absent. Other super- 
ficial reflexes noted to be normal. Organic re- 
flexes abolished. Involuntary urination and 
defecation. There was a systolic murmur 
present and a slight impairment of the upper 
lobe of right lung. Breath very offensive. He 
remained in this stuporous condition, leading 
a more or less passive existence, for about a 
month after admission. For two months fol- 
lowing this he was quite agitated, and his out- 
ward reactions indicated that he was quite de- 
pressed. On April 25th, about four and a half 
months after admission, when asked how long A CHAPTER OF BLUNDERS 
139 
he had been in the hospital, he replied three 
days. From that time on he began to improve. 
Consciousness became more and more clear. In 
June he talked and acted quite rationally. He 
had a total amnesia for what had transpired 
during his stuporous and agitated states and a 
retrograde amnesia for several days prior to 
and including the commission of the homicide. 
He continued clear mentally and in a more or 
less normal state until the latter part of 
November 1902, when he again went into a 
stupor. From this time until the latter part of 
April, 1903 he had alternating periods of stupor 
and lucidity, with amnesia for the stuporous 
states. In June, 1903 he was discharged as re- 
covered, was tried and found guilty of murder 
in the first degree, being sentenced to life im- 
prisonment. Shortly after he reached the peni- 
tentiary his mental trouble reappeared and he 
was sent back to Saint Elizabeth’s Hospital. 
On admission he was stuporous and remained 
so for several days, then cleared up gradually. 
He showed a paranoid state, saying that he had 
been poisoned and attempts had been made to 
kill him at the penitentiary. With this he had 
a complete left-sided functional hemiplegia 
with a very complete outfit of hysterical stig- 
mata. He continued to elaborate paranoid 
ideas about his environment, said that attempts 
were being constantly made to affect him with 140 
INSANITY AND THE CRIMINAL LAW 
chemical substances, that these were put in his 
food and rubbed on the walls of his room, 
making him dizzy. He could hear and see 
things which happened in foreign countries as 
plainly as if he were there. He had super- 
human power, so that all attempts to poison 
him were futile. For example, they had tried 
to chloroform him for several days in succes- 
sion without success. The patient remained in 
Saint Elizabeth’s Hospital for several years, 
during which his paralytic symptoms gradually 
cleared up although the hysterical stigmata per- 
sisted. The more bizarre paranoid ideas sub- 
sided but he still showed a paranoid type of 
reaction. He said that his trial was crooked 
and irregular and that he had not been given a 
fair chance. He was egotistical and easily irri- 
tated. His attorneys made numerous efforts to 
have him pardoned so that he might be trans- 
ferred out of the criminal department to some 
other part of the hospital. A full account of his 
case was sent to the Department of Justice and 
it was stated as quite probable that if he were 
pardoned improvement would occur. However, 
the pardon was never granted and when the 
patient recovered from his paranoid ideas, 
which was about six years after he was ad- 
mitted to the hospital, he was transferred back 
to prison. CHAPTER XI 
LEGAL SUGGESTIONS FOR BETTERMENT 
With this brief critical survey of the actual 
state of affairs in mind it is now possible to go 
forward to the consideration of the means 
whereby they may be improved upon. The 
author for some years past has served upon 
a committee of the American Institute of Crim- 
inal Law and Criminology 1 which, among other 
things, has undertaken to draft a statute which 
attempts a partial solution of the difficulties 
which arise where the existence of mental dis- 
ease becomes an issue in the trial of a case. 
1 Two members of the original committee resigned, and one 
vacancy thus created was later filled. Otherwise the committee 
has remained unchanged since its original appointment. It 
now consists of the following members: 
Albert C. Barnes, Judge of the Superior Court, Chicago. 
Orrin N. Carter, Justice of the Illinois Supreme Court. 
Edwin R. Keedy, Chairman, Professor of Law in the Uni- 
versity of Pennsylvania. 
Adolf Meyer, Professor of Psychiatry in Johns Hopkins 
Medical School. 
William E. Mikell, Dean of the Law School, University of 
Pennsylvania. 
Harold N. Moyer, Physician, Chicago. 
Morton Prince, Physician, Boston. 
William A. White, Superintendent Saint Elizabeth’s Hos- 
pital, Washington, D. C. 
141 142 
INSANITY AND THE CRIMINAL LAW 
Most suggestions for improving conditions fail 
to take into account constitutional limitations 
or firmly grounded methods of procedure and 
so never get anywhere. The following sug- 
gested laws aim to incorporate only such 
changes as are practical and the committee felt 
it was better to actually accomplish something, 
be it ever so little, than to put forth an ideal 
scheme that was of necessity doomed to failure. 
The laws suggested are as follows: 
CRIMINAL RESPONSIBILITY BILL 
Sec. 1. When Mental Disease a Defense. 
No person shall hereafter be convicted of any 
criminal charge when at the time of the act or 
omission alleged against him he was suffering 
from mental disease and by reason of such 
mental disease he did not have the particular 
state of mind that must accompany such act or 
omission in order to constitute the crime 
charged. 
Sec. 2. Form of Verdict. When in any in- 
dictment or information any act or omission 
is charged against any person as an offense, 
and it is given in evidence on the trial of such 
person for that offense that he was mentally 
diseased at the time when he did the act or 
made the omission charged, then if the jury be- 
fore whom such person is tried concludes that 
he did the act or made the omission charged, 
but by reason of his mental disease was not LEGAL SUGGESTIONS FOR BETTERMENT 
143 
responsible according to the preceding section, 
then the jury shall return a special verdict that 
the accused did the act or made the omission 
charged against him but was not at the time 
legally responsible by reason of his mental dis- 
ease. 
Sec. 3. Inquisition. When such special ver- 
dict is found, the court shall remand the pris- 
oner to the custody of (the proper officer) 2 and 
shall immediately order an inquisition by (the 
proper persons) 2 to determine whether the 
prisoner is at that time suffering from a men- 
tal disease so as to be a menace to the public 
safety. If the members of the inquisition find 
that such person is mentally diseased as afore- 
said, then the judge shall order that such per- 
son be committed to the state hospital for the 
insane, to be confined there until he shall have 
so far recovered from such mental disease as to 
be no longer a menace to the public safety. If 
they find that the prisoner is not suffering from 
mental disease as aforesaid, then he shall be 
immediately discharged from custody. 
EXPEET TESTIMONY BILL 
Sec. 1. Summoning of Witnesses by Court. 
Whenever in the trial of a criminal case the 
issue of insanity on the part of the defendant 
3 When this bill is introduced in the legislature of any state, 
the titles of the person whose duty it is, according to the 
existing law of the state, to conduct such an inquisition, shall 
be inserted here. It is hot proposed to change the prevailing 
practice in this respect. 144 
INSANITY AND THE CRIMINAL LAW 
is raised, the judge of the trial court may call 
one or more disinterested qualified experts, not 
exceeding three, to testify at the trial, and if 
the judge does so, he shall notify counsel of 
the witnesses so called, giving their names and 
addresses. Upon the trial of the case, the wit- 
nesses called by the court may be examined 
regarding their qualifications and their testi- 
mony by counsel for the prosecution and de- 
fense. Such calling of witnesses by the court 
shall not preclude the prosecution or defense 
from calling other expert witnesses at the trial. 
The witnesses called by the judge shall be al- 
lowed such fees as in the discretion of the judge 
seem just and reasonable, having regard to the 
services performed by the witnesses. The fees 
so allowed shall be paid by the county where 
the indictment was found. 
Sec. 2. Written Report by Witnesses. When 
the issue of insanity has been raised in a crim- 
inal case, each expert witness, who has ex- 
amined or observed the defendant, may pre- 
pare a written report regarding the mental 
condition of the defendant based upon such ex- 
amination or observation, and such report may 
be read by the witness at the trial after being 
duly sworn. The written report prepared by 
the witness shall be submitted by him to coun- 
sel for either party before being read to the 
jury, if request for this is made to the court 
by counsel. If the witness presenting the re- 
port was called by the prosecution or defense, 
he may be cross-examined regarding his report 
by counsel for the other party. If the witness LEGAL SUGGESTIONS FOR BETTERMENT 
145 
was called by the court, he may be examined re- 
garding his report by counsel for the prosecu- 
tion and defense. 
Sec. 3. Commitment to Hospital for Obser- 
vation. Whenever in the trial of a criminal 
case the existence of mental disease on the part 
of the accused, either at the time of the trial or 
at the time of the commission of the alleged 
wrongful act, becomes an issue in the case, the 
judge of the court before whom the accused 
is to be tried or is being tried shall commit 
the accused to the State Hospital for the 
Insane, to be detained there for purposes of 
observation until further order of court. The 
court shall direct the superintendent of the 
hospital to permit all the expert witnesses 
summoned in the case to have free access 
to the accused for purposes of observation. 
The court may also direct the chief physician 
of the hospital to prepare a report regarding 
the mental condition of the accused. This re- 
port may be introduced in evidence at the trial 
under the oath of said chief physician, who may 
be cross-examined regarding the report by 
counsel for both sides. 
The statute as written seems to be so plain as 
to require little explanation: A few comments, 
however, may not be out of place. In the first 
place it offers a correction of the method of 
procedure in so far as it attempts to remove the 
element of partisanship real or implied, that 
now exists in that method. While both parties 146 
INSANITY AND THE CRIMINAL LAW 
to the issue are left absolutely free, as at pres- 
ent, to summon experts of their own choosing, 
still it is felt that the opinion of the experts 
summoned by the court or the hospital physi- 
cians will, other things being equal, prevail 
because of the tactical advantage of their posi- 
tion of disinterestedness, in relation to the 
issue being tried. 
Secondly, it provides that the witnesses sum- 
moned by the court may be cross-examined by 
counsel for both parties in the case. This not 
only gives each side an equal opportunity but 
if the court should because of political influ- 
ence, ignorance or for any other reason sum- 
mon incompetent or disreputable witnesses 
these facts would be pretty apt to be brought 
out under cross-examination by counsel for one 
side or the other. 
Thirdly, existing sources of information and 
authority within the control of the State, the 
State Hospitals, are brought into a service that 
they are especially able and equipped to per- 
form. 
Fourthly, there is special provision for the 
fullest possible information to be placed at the 
disposal of the expert. 
Fifthly, when the defendant is found to be 
mentally ill he is at once committed to a State 
Hospital for the Insane for treatment and to LEGAL SUGGESTIONS FOR BETTERMENT 
147 
be retained there and not discharged until he 
shall have so far recovered as to no longer be 
a menace to the public safety. 
And finally the suggested statute provides 
that each expert witness may prepare a written 
report upon the mental condition of the de- 
fendant, and such report may be read by the 
wfitness at the trial. The advantage of this will 
be at once apparent if a given crime is thought 
of, not as an isolated act, but, in accord with 
the principles already laid down, as an act that 
can only receive its explanation by an investi- 
gation of its historical antecedents. This 
means that the personality make-up of the in- 
dividual must be understood as well as the 
situation to which that make-up has had to ad- 
just, and in particular the specific situation out 
of which the crime issued. This method of pre- 
senting the evidence permits the criminal act 
to be described in its proper setting, to be given 
its proper value in a general behavioristic sur- 
vey of the personality, so that the real nature 
of the problem which confronts the court in 
the person of the defendant can be thus ade- 
quately presented. 
As a matter of practice it is rarely permitted 
the expert to set forth his opinion in a con- 
nected discourse of this sort. He is usually 
subjected to innumerable interruptions in the 148 
INSANITY AND THE CRIMINAL LAW 
efforts of opposing counsel to exclude certain 
matters they conceive to be inimical to their 
interests with the result that the jury gets a 
disconnected, chopped up statement which does 
not begin to present fairly the expert’s real 
opinion. The cross-examination may then very 
properly ask all manner of questions, pulling 
apart the expert’s statement, presenting hy- 
potheses, etc., for the double purpose of test- 
ing the expert’s knowledge and learning more 
in detail just how he comes to his conclusions. CHAPTER XII 
THE PRINCIPLES OF CRIMINOLOGY 
In order that a full understanding of the 
benefits that would accrue from the operation 
of the laws suggested in the last chapter may 
be had, it will be necessary to discuss in this 
and succeeding chapters the principles of 
criminology and the nature and functions of the 
criminal law. 
The principles of criminology dictate that the 
criminal and not the crime should he the mat- 
ter of prime consideration and that the sen- 
tence, or better the decision of the court, should 
be calculated to cure the social illness as it has 
been shown to exist in the conduct of the de- 
fendant. The situation is analogous to the 
relation between physician and patient only 
that here the disease is not individual but so- 
cial and the place of the physician is taken by 
the State. Under the operation of these prin- 
ciples a defendant who was only charged with 
a minor offense might well have to spend the 
rest of his life more or less restricted in his 
liberty if an analysis of his make-up and a 
149 150 
INSANITY AND THE CRIMINAL LAW 
study of his behavior showed that he never 
sufficiently improved or profited by his experi- 
ence to warrant discharge as a free citizen into 
the community. In the same way a person who 
had committed a serious offense might be ulti- 
mately discharged after a comparatively brief 
internment. It is the same here as in the prac- 
tice of medicine. All cases of pneumonia are 
not treated alike just because the disease hap- 
pens to be labeled pneumonia. The patient is 
treated and allowances made for age, previous 
condition of health, concurrent diseases of or- 
gans other than the lungs, power of resistance, 
etc. The patient is treated and not the dis- 
ease and it is as illogical to sentence a person 
who has committed a certain offense to a specific 
term of imprisonment as it would be to decide 
when a patient is admitted to a hospital the day 
upon which he shall be discharged. The hos- 
pital patient is not discharged until it is thought 
that he is well enough to leave and the criminal 
should not be discharged until there is good 
reason for believing that he is able to take his 
place as a responsible member of society. 
To approach the problem of criminology in 
this way would require considerable changes in 
our legal machinery. It would require, among 
other things, that judges should specialize along 
the lines of their individual interests just as THE PRINCIPLES OF CRIMINOLOGY 
151 
physicians specialize in their profession. A 
trend in this direction is already apparent in 
the establishment of special courts, in particu- 
lar, juvenile and domestic relations courts. 
Such courts tend to come to he presided over by 
justices who have special interests and such 
justices tend to develop a constructive attitude 
toward the problems brought before them, much 
as do physicians, rather than to be satisfied at 
fitting the particular case into some definition 
and then passing an arbitrary, predetermined 
sentence. 
Until such day as the criminal courts can be 
conducted after this fashion effort should be 
continued to give the expert as favorable a 
placement in the scheme as the judge and jury 
now hold. He needs to be placed in as near as 
possible an unprejudiced attitude toward the 
issues. The old way of requiring the expert 
to hear all the evidence, rather than pass upon 
a hypothetical question, was psychologically far 
preferable but of course too time consuming 
for our present day. Theoretically the jury 
should be limited to a determination of the 
facts, that is, in a criminal case, it should 
pass only upon whether the accused did or did 
not commit the antisocial act as charged. If 
he is found guilty then it should be the right 
of the State to prescribe the treatment which, 152 
INSANITY AND THE CRIMINAL LAW 
after careful consideration by those skilled in 
such matters, seems calculated to effect the best 
results in the end. In this way many a young- 
ster might well be saved from a career of crime 
by not contaminating him with the influence of 
the prison and definitely antisocial characters 
could be indefinitely confined at useful occupa- 
tion instead of repeatedly being set free to take 
up their criminal practices again with the neces- 
sary expense and lost motion incident to again 
apprehending them, and a repetition of the 
same old process of trial and conviction. This 
end is already partly accomplished by the inde- 
terminate sentence and the supervision of the 
offender by parole officers with the assistance 
of Prisoners Aid and other charitable social aid 
agencies. 
Of course it is fully appreciated that under 
the present rules of practice and controlled by 
the present concepts of crime, responsibility, 
guilt and innocence such results could not be 
effected. But such static concepts are begin- 
ning to break down and their place is gradually 
being taken by a more intelligent and a more 
dynamic appreciation of the nature of human 
conduct.1 Disease was thought of in the Middle 
1See my “Mechanism of Character Formation” (published 
by The Macmillan Co., New York, 1916), and Paton, Stewart: 
“Human Behavior in Relation to the Study of Educational, 
Social and Ethical Problems” (published by Charles Scribner’s 
Sons, New York, 1921). THE PRINCIPLES OF CRIMINOLOGY 
153 
Ages as possession by an evil spirit. Even to- 
day this concrete way of thinking of disease is 
the rule rather than the exception and although 
it is not thought of as a concrete devil it is still 
felt somehow as if it was something that came 
from the outside, invaded the individual, and 
destroyed him. It is known however that the 
diseased individual does not differ from the 
healthy individual in any fundamental way; the 
differences are only those of more or less; in 
other words, they are only differences of em- 
phasis. What appears as disease is only the 
evidence of inefficiency and failure in the ca- 
pacity of the organism to deal with the prob- 
lems of adaptation that present. It is the same 
with abnormal conduct. Conduct which is 
criminal or insane is only the conduct of indi- 
viduals who cannot effectively deal with the 
situation in which they find themselves. Such 
conduct shows no tendencies that are not pres- 
ent in perfectly normal people; the only differ- 
ence between it and normal conduct is the dif- 
ference of emphasis upon certain instinctive 
directions. 
This statement may very likely be received 
with incredulity but with a little thought along 
the lines of the suggestions to follow it will not 
be difficult of comprehension. Criminal con- 
duct is in its nature infantile. It is conduct of 154 
INSANITY AND THE CRIMINAL LAW 
undeveloped, relatively infantile individuals 
placed in a situation where adult responses, 
adult forms of reaction are expected of them. 
The designation infantile is here used to apply 
particularly to the affective, the emotional as- 
pects of the mental life. It is not only possible 
but in fact it is quite frequent to find an indi- 
vidual highly endowed intellectually but of very 
childlike personality make-up on the emotional 
side. Now it is this lack of development on 
the emotional side that is fundamental to the 
understanding of the psychology of the crim- 
inal.2 The difference therefore between the 
criminal and the normal man is only one of de- 
gree not of kind. In one the lack of apprecia- 
tion of Mine and Thine, the lack of control of 
the temper and innumerable other character- 
istics have remained at their infantile stage of 
development and the conduct resulting is not 
assimilable by the body social; in the other the 
tendencies that are represented by those char- 
acteristics have been gotten under control and 
adequately directed and utilized in the course 
of the individual’s further development—they 
have been brought under the direction of the 
personality and utilized to serve socially ac- 
ceptable and constructive ends. 
“For the infantilism of the dependent, defective, and delin- 
quent classes see my “Mental Hygiene of Childhood” (pub- 
lished by Little Brown & Co., Boston, 1920). THE PRINCIPLES OF CRIMINOLOGY 
155 
Now then conduct looked at from this broader 
viewpoint is seen to be made up of expressions 
of more or less effective and efficient reactions 
of adjustment. To label it criminal, insane or 
what not has undoubtedly been of service in 
the past development of an understanding of 
the problems involved but for the next step it 
is necessary to break away from the static re- 
strictions that are implied in such definitions. 
For the next step a broader and a deeper vision 
is necessary, a vision that sees through and 
beyond these definitions. 
The following cases illustrate these points: 
Case XII. A seventeen-year-old boy who had 
never done well at anything and who had be- 
come a gambler and sort of cheap Don Juan, 
becomes engaged to a girl and they require a 
sum of money to start housekeeping. One 
morning he takes her to a friend’s house, gets a 
marriage license, drinks some cheap whiskey 
and then goes to the home of a miserly old 
woman, who is reported to have a large sum 
secreted in her clothing. He beats her about 
the head with an iron bar, killing her, rips her 
clothing, seizes most of the money, goes to 
where his fiancee is and gives the money to her. 
He is sentenced to be hanged. 
This is a seventeen-year-old white boy, who 
had always been rather a ne ’er-do-well. He had 156 
INSANITY AND THE CRIMINAL LAW 
had some education, had helped some with farm 
work and held several positions with fair suc- 
cess. When about sixteen he had begun to run 
around with a crowd of dissolute young fellows, 
as the result of which he drank, gambled and 
was a sort of amateur Don Juan. He became 
acquainted with a girl of doubtful character and 
promised to marry her. One morning they 
started downtown; he left her at a friend’s 
house and went to the Court House and bought 
a marriage license. On the steps of the Court 
House he was approached by a man who offered 
him a drink of whiskey, which he took. He 
then boarded a street car and went to the home 
of an old woman who lived in a lonesome house 
in the suburbs, who was thought by neighbors 
to be a miser and it was generally known that 
she carried large sums of money on her person. 
On his way to her home he picked up an iron 
bar and concealed it in his clothes. When 
he reached the house the old woman, who 
knew him, invited him in and they sat down for 
a chat. It appears that he asked her several 
times to lend him some money, but she refused. 
During the interview, a man who boarded up- 
stairs passed through the room several times 
and was introduced to the defendant. Upon the 
old woman’s refusal to lend the money, the 
defendant attacked her, beat her about the head THE PRINCIPLES OF CRIMINOLOGY 
157 
with the iron bar and began to cut her clothing 
to pieces to get the money. The roomer up- 
stairs heard the noise and ran down. He saw 
the old woman lying dying and the defendant 
taking money out of her clothing. The defend- 
ant started towards him with the iron bar lifted 
and the roomer ran upstairs, calling to his wife 
to hand him his gun. At this the defendant fled 
from the house, taking with him about two 
thousand dollars and leaving several more thou- 
sand behind him. A little distance from the 
house he threw the bar by the side of the road. 
He went directly to the house where his fiancee 
was and handed her the money to keep and he 
then stayed in the house for an hour or two 
during most of which time he played with a 
baby. He was then arrested and charged with 
murder. At the trial it was alleged that the de- 
fendant was insane and that the crime of which 
he was charged was in its very nature the act of 
a defective. Among other things which seemed 
to indicate an abnormal mental condition, the 
following were stressed by the defense: the lack 
of caution shown by the defendant, who knew 
that he had been observed and identified by a re- 
liable witness just before the crime, and his 
indifference to the fact that this witness was 
practically in the next room; the brutal nature 
of the crime itself; the absence of any effective 158 
INSANITY AND THE CRIMINAL LAW 
flight or concealment of the crime. However, 
public opinion favored the prosecution, which 
laid stress on the alleged motive, namely, that 
the hoy wished to get married and did not have 
any money to start housekeeping. Also, pre- 
determination was alleged from the fact that 
he picked up an iron bar on his way to the old 
woman’s house. Naturally, too, there was a 
great deal of sentiment against the defendant 
on account of the age, sex and feebleness of his 
victim. The jury found him guilty of murder 
in the first degree and he was sentenced to be 
hanged. 
The essentially childish nature of this crime 
is apparent to any one accustomed to an un- 
prejudiced evaluation of human conduct. 
Case XIII. The son of a drunken prize 
fighter and his imbecile wife had a stormy 
childhood, being cruelly beaten by his father, 
running away and being the neighborhood “bad 
boy.” At an early age he left home for good 
and became a tramp. He was thrown in with 
criminals and took kindly to their ways. 
Among them he was noted for callousness. He 
held up a small store and when the proprietor 
drew a gun he killed him. Later, in the rail- 
road station, he was approached by a detective 
whom he shot and killed. At no subsequent THE PRINCIPLES OF CRIMINOLOGY 
159 
time did he manifest any emotion other than 
egotism. He was hanged. 
This was a twenty-three-year-old white male 
who was convicted of first degree murder, al- 
though his lawyers offered the defense of in- 
sanity. He entered a small store in Washing- 
ton one evening and held up the proprietor. 
The latter reached for a gun, whereupon the 
defendant shot and killed him. A city wide 
search was instituted for him and he was finally 
seen at the ticket window of the Union Station. 
The detective who saw him rushed towards him; 
the defendant fired and shot the detective, who 
later died. Upon examining the defendant it 
wTas found that he was a confirmed criminal. 
He was the son of a drunken prize-fighter and 
his imbecile wife. In early childhood he had 
been beaten brutally by his father and neglected 
by his mother. He became the neighborhood 
bad boy and took delight in committing offenses 
of such enormity as to excite the indignation 
of the community and the admiration of his 
playmates. He frequently ran away from 
home and obtained temporary board and lodg- 
ing at some farmer’s house by telling him all 
sorts of fantastical stories. Finally he ran 
away from home for good and became a hobo 
and criminal. No account anywhere near com- 
plete is obtainable of his activities from his 160 
INSANITY AND THE CRIMINAL LAW 
fourteenth to his twenty-third year, but it is 
known that he served one or two penitentiary 
sentences and that at one time, when he was 
engaged in burglarizing a house, he shot and 
seriously wounded the householder. Some his- 
tory was obtained from a convict, who was once 
a pal of the prisoner, and this was to the effect 
that the latter had the reputation in the under- 
world of being a “bad man.” He always car- 
ried a gun and never hesitated to use it. In 
fact, he was quite ready to shoot an unoffending 
person for the mere fun of it. On one occa- 
sion, for example, the two of them were rob- 
bing a Chinese restaurant and the prisoner was 
about to shoot the proprietor for no reason at 
all, when his comrade intervened (solely for 
precautionary reasons). Towards his plight, 
when arraigned in the District courts, the de- 
fendant showed the greatest indifference. He 
showed no interest in getting a lawyer and 
when one was assigned to him was very uncom- 
municative, refusing to give him any more than 
a very perfunctory cooperation. He expressed 
no remorse for his crime and said that he 
would do the same thing again under similar 
circumstances. In fact, his attitude was so cal- 
lous that his lawyer had to prevent people from 
seeing him and was obliged to censor all of his 
utterances for fear of increasing the public in- THE PRINCIPLES OF CRIMINOLOGY 
161 
dignation against him, which was already very 
great. After his conviction he expressed no 
fear of his approaching execution and main- 
tained this attitude until the very end. 
This is the typical hero of the dime novel 
type. He would have had a fair chance to have 
escaped execution if he had not carried his 
bravado to such an extent as to alienate all 
sympathy from him. A detailed study of this 
case, as has been made many times by psychiat- 
rists, would show just how the final act of this 
boy’s career grew logically and of necessity out 
of his previous life—his antecedents, his train- 
ing (or lack of training), his associates, etc., etc. 
Who is wise enough to talk of responsibility? 
Case XIV. This patient was a colored woman 
of twenty-four, subject to hysterical seizures. 
In the middle of the night she went to her moth- 
er’s home and reported that she had had a 
quarrel with her husband, who had threatened 
to kill her. On investigation her husband was 
found dead, with his throat cut. Following 
this discovery, she had a number of convulsions. 
She also had them in court and was sent to St. 
Elizabeth’s Hospital for observation. Here a 
diagnosis of hysterical psychosis was made. 
This was a twenty-four-year-old colored fe- 
male who had had a meager education. She 
came of rather bad stock. Her father was of a 162 
INSANITY AND THE CRIMINAL LAW 
nervous temperament and had had spinal trou- 
ble as a child. One paternal aunt died of 
tuberculosis. Mother is extremely nervous and 
timid and refuses to be alone at night. There 
is a brother who is eccentric and is generally 
diagnosed by the relatives as “not right in the 
head.” He has “funny fits” and falls down 
like dead but never bites his tongue. One 
brother died of cardio-renal disease and one 
brother had convulsions. There is consider- 
able alcoholism in the family. The patient her- 
self showed nothing abnormal during child- 
hood. Her menstrual life, however, did not 
begin until after she was married at the age 
of eighteen. Her history, given by her parents, 
some time after the crime for which she was 
arrested, and therefore subject to some doubt 
on account of prejudice, is to the effect that she 
began to have ‘1 spells ’ ’ at about the age of six- 
teen. She would “fall down and be like a dead 
person.” She never frothed at the mouth, how- 
ever, nor bit her tongue. These “spells” were 
precipitated by emotional excitement. They 
never occurred at night and in the two years 
between the first seizure and her marriage she 
only had one of them. After being married 
she had them rather frequently. Her married 
life was unhappy. Her husband was unfaith- 
ful and alcoholic and frequently beat her. She THE PRINCIPLES OF CRIMINOLOGY 
163 
had two miscarriages, both of them brought 
on by “spells.” September 8th, 1910, the pa- 
tient and her husband had a quarrel following 
which the husband went to his lodge and the 
wife to the home of her mother. The two 
women went to the theater and the patient was 
in excellent humor, laughing and talking. At 
about eleven o ’clock the patient left her mother 
and went to her own home. At two in the 
morning the mother was awakened by the pa- 
tient’s return in a state of great excitement. 
She said her husband had come home and had 
driven her out of the house, threatening to kill 
her. The patient and her mother then went to 
the police station and swore out a warrant for 
his arrest, but when they went to his house 
they found him dead with his throat cut. On 
seeing this the patient had a “spell.” Later 
in the day she was arrested, charged with the 
murder of her husband. In all subsequent in- 
vestigations, it does not appear that her guilt 
was established indubitably. However, it ap- 
pears from certain collateral evidence as well 
as from expressions used in unguarded mo- 
ments by the patient herself, that it happened 
about as follows: She returned home that night 
and found her husband in bed. The quarrel 
was resumed and she seized a razor and 
slashed his throat. He jumped out of bed and 164 
INSANITY AND THE CRIMINAL LAW 
she ran down stairs, with him in pursuit. At 
the head of the stairs he lost his balance and 
fell down stairs, striking his head. When the 
patient was arraigned in court she had a num- 
ber of convulsions and these were repeated in 
jail, especially when the subject of the murder 
was brought up. Finally an inquisition into 
her mental condition was held and she was 
found of unsound mind and sent to St. Eliza- 
beth’s Hospital. Exhaustive examination of 
her there showed that she was hysterical and 
that following her crime, with its intense emo- 
tional concomitants, she had developed hyster- 
ical psychosis as a defense reaction. She had 
numerous convulsions at the hospital, usually 
brought on by some unusual incident, for ex- 
ample, her appearance before a clinic, an inter- 
view touching on the matter of her guilt, a 
quarrel with a nurse. After being in the hos- 
pital for several months, her convulsions 
became less frequent. She changed her ac- 
count of the happenings on the night of the 
murder to the following: She said she went 
home and found the door locked so she re- 
turned to her mother’s home and then she and 
her mother went back to her home and found 
her husband lying with his throat cut. She 
expressed considerable doubt of her husband’s 
death saying such things as ‘1 They say my hus- THE PRINCIPLES OF CRIMINOLOGY 
165 
band is dead—I guess I will have to believe it 
as I have not seen him—mama says he is dead. ’ ’ 
Furthermore, in spite of a vast amount of con- 
trary evidence, she stated that her husband 
did not go around with other women and that 
her family life was very happy. It was notice- 
able, however, that when talking of his being 
dead and of the particulars of his murder, she 
showed no more emotion than if she were 
speaking of some event in the paper. She 
stated that she did not remember going to court 
and was not inclined to believe she had been 
there. On one occasion she was accused by 
another patient of having killed her husband 
and said, “If you ever mention that to me again, 
I will kill you.” The patient remained in the 
hospital about a year and then having been 
reported to the District Attorney’s office as re- 
covered, she appeared for trial and was found 
guilty of murder in the second degree. The 
judge gave her the minimum sentence of twenty 
years in a penitentiary. She was taken to the 
penitentiary in 1912. For several years she 
apparently got along fairly well there and 
then she began to get into trouble with her en- 
vironment. She became nervous and irritable 
and would have one of her “spells” whenever 
she was reprimanded or forced to do any hard 
work. Finally she was transferred back to St. 166 
INSANITY AND THE CRIMINAL LAW 
Elizabeth’s, arriving there in March, 1916. 
When interviewed shortly after her second ad- 
mission to the hospital, her condition did not 
differ noticeably from that on first admission. 
To her original amnesia of the murder, how- 
ever, she had added an amnesia for her trial. 
She remembers being taken out of the jail to 
a great room but does not know whether she 
was tried or not, said she never saw a judge 
or jurors or witnesses, was never allowed to 
make any statement to the judge and did not 
hear her sentence. She remembers, however, 
seeing a paper on which was written “twenty 
years.” Observation of her during her second 
admission, did not reveal any ‘ ‘ spells ’ ’ although 
she herself said she had had numerous ones. 
She would frequently go to the nurse and say 
she had just had a “spell” in her room but 
there was never any evidence of it other than 
her own statement. In January, 1919, the pa- 
tient escaped from the hospital and nothing has 
been heard of her since that time. At that time 
she had served over a third of her sentence and 
would have been eligible for parole had she 
applied for it. It is believed that her relatives 
smuggled her out of the country and she is 
living incognito. 
This case again shows an infantile type of 
reaction known technically as hysterical am- THE PRINCIPLES OF CRIMINOLOGY 
167 
nesia or forgetfulness. The patient just simply 
forgets those experiences of .her life which were 
unpleasant and which therefore she not only 
does not want to know about but treats as if 
they really did not exist. She is like the baby 
who thinks if it covers its eyes no one can see it. 
Conduct is the outward evidence of the way 
in which the individual is utilizing his energies. 
Just as disease evidences a poor, in the sense 
of wasteful and inefficient, utilization of en- 
ergy, so defective types of conduct are evi- 
dences of a poor use of energy. The broad 
problem therefore is to make the individual 
capable of handling his energies to better ad- 
vantage and any change in this direction will 
be of benefit to both the individual and to so- 
ciety. 
From this point of view it is of no material 
importance whether an individual is respon- 
sible or not when he commits an antisocial act. 
It is no more pleasant to have one’s throat cut 
by a lunatic than by a criminal. The act is 
just as destructive in its social tendencies in 
the one case as in the other. The large prob- 
lem therefore is to make available the maxi- 
mum of energy for socially useful purposes. 
From this method of approach the individual 
who committed an antisocial act would by that 
fact alone come under the control of the State 168 
INSANITY AND THE CRIMINAL LAW 
and that control would not be relinquished until 
there was evidence that he could live a reason- 
ably useful life as a free citizen. 
Such a scheme as this does not take into ac- 
count that spirit of revenge which animates the 
injured parties and often spreads widely into 
the community especially when the crime has 
been particularly heinous. If the function of 
the trial court were confined to a determination 
of the fact, that is, whether the act charged 
was or was not committed the antipathic emo- 
tions of the herd would have quite as good an 
opportunity to vicariate as now. After the 
prisoner was condemned and the key turned 
upon him, so to speak, the public would 
promptly forget him, as now, and any construc- 
tive scheme of social therapeutics could then 
be worked out in peace and quiet and free from 
the emotional strains that now not infrequently 
greet an effort on the part of the accused to 
effect his acquittal by way of the plea of in- 
sanity. 
This suggestion to do away entirely with any 
attempt at the trial to determine the question 
of responsibility is in harmony with scientific 
psychological principles. Wherever there is 
a conflict between opposing forces its solution 
can only be effected by means of a wider gen- 
eralization that includes them both. In this THE PRINCIPLES OF CRIMINOLOGY 
169 
instance the wider generalization is the broader 
conception of conduct as a manifestation of 
the way in which energy is being used and 
which sees in the designations insane and crimi- 
nal only particular aspects of conduct. The 
problem is to deal with conduct in the large 
and as inclusive of these particular aspects. 
From this point of view acts which tend to the 
disruption of society must receive attention in 
the criminal courts but they can only be effec- 
tively dealt with by effectively dealing with 
the individuals who perform them. The way 
of dealing with the individual is to turn his 
energies to social use and this way is not only 
best for society but for him. 
The very obvious objection to the suggestion 
that the jury pass only upon the fact of com- 
mission and not upon the question of responsi- 
bility and the objection which is controlling at 
the present time is the objection that such a 
provision if introduced into the law would be 
unconstitutional. From the standpoint of 
crime as now conceived, as an offense against 
society which must be punished, the objection 
is incontrovertible. The question of responsi- 
bility goes to the root of the whole matter. If 
the defendant was of such a state of mind as 
not to be able to entertain a criminal intent 
he could not be guilty and therefore could not 170 
INSANITY AND THE CRIMINAL LAW 
be punished. This difficulty in the way of the 
position taken is fully appreciated. Neverthe- 
less, it seems important to set forth the broader 
view, based upon the principles underlying hu- 
man behavior, and hope that slow and unpre- 
dictable modifications, such as have already 
taken place in certain directions, most notably 
in connection with the problem of juvenile de- 
linquency, will move in accordance with them. 
Constitutional amendment might be necessary 
but we know how often such steps are avoided 
by the slow growth of new concepts which com- 
pass the necessary changes by way of new and 
previously unthought of interpretations which 
arise as conditions undergo that subtle change 
we call variously by such terms as “evolution,’* 
“development,” “progress.” The arguments 
previously used disappear because conditions 
cease to exist to which they are applicable. CHAPTER XIII 
FURTHER SUGGESTIONS 
I am aware that the suggestion that the jury 
pass only upon the fact as to whether the ac- 
cused did or did not do the act or make the 
omission charged runs counter to certain con- 
stitutional requirements. The verdict ‘ ‘ guilty ’ ’ 
implies that the accused did in fact possess, at 
the time he committed the crime, that state of 
mind that made his act or omission a crime. 
Had he been “insane” he could not be “guilty” 
because he did not have such a state of mind, 
that is, he was not responsible and therefore not 
guilty. The admission of experts, however, to 
a position of dignity and the bona fide effort 
to use their knowledge to help deal with the 
specific problems for which their advice is 
sought will go far toward effecting these re- 
sults, in fact even if such results are not actu- 
ally provided for by statute. I will refer to this 
later. 
It is not the function of this book to discuss 
the specific ways of treating the criminal. Suf- 
fice it to say that the criminal can be made much 
171 172 
INSANITY AND THE CRIMINAL LAW 
more useful, his efficiency by the proper ap- 
plication of education and industrial methods 
can be materially increased, and especially if 
he were colonized with this idea in view un- 
doubtedly a tremendous deal could be accom- 
plished. To increase the efficiency of the sub- 
normal classes by segregation to stop the opera- 
tion of the negative factors and by education 
to develop their possibilities is a proper func- 
tion of the State and will prove to be an eco- 
nomically advantageous investment. 
To come back to the immediate treatment of 
the criminal. It is desirable, as already indi- 
cated, that judges should specialize as do phy- 
sicians. While this is a change that is coming 
about all too slowly in certain directions there 
are certain things that might be done to facili- 
tate it. Judges who preside in criminal courts, 
district attorneys, and, too, public defenders 
should in no case he political appointees but 
men specially qualified for their work who have 
pursued, preferably as postgraduate students, 
special studies in criminology and allied sub- 
jects. The presiding judge at least should 
have some knowledge of criminology. Judges 
to-day not only as a rule know little of crimi- 
nology but they never even come in personal 
contact with the human material that passes be- 
fore them and unless they have been district FURTHER SUGGESTIONS 
173 
attorneys have no first hand knowledge what- 
ever of the criminal.1 
There is at present almost no inducement for 
the young graduate of a law school to special- 
ize in criminal law. About the only opportunity 
in this line is for appointment as district at- 
torney. This is usually a political job which 
is sought only as a stepping-stone to a private 
practice rather than because of any interest 
in the problems of criminology. If the posi- 
tions in the district attorney’s office and the 
office of the public defender were made perma- 
nent, filled by competition and protected by the 
civil service and the judges of the courts which 
handle the criminal problems were selected 
from these offices so that a real career could be 
looked forward to; and if at the same time the 
law schools would offer instruction in crimin- 
ology and allied subjects there would begin to 
be hope for this branch of the practice of the 
law. The law schools should not only offer 
systematic instruction in criminology, prob- 
ably postgraduate courses, but they should in- 
1 It might be a wise provision that required that he should 
spend from one to two years as resident of a prison. Phy- 
sicians regularly serve that amount of time as hospital internes 
in order to fit themselves for practice. There is certainly quite 
as good a reason why the lawyer who is going to practice 
criminal law should serve as interne in a prison so that he 
may have the best possible opportunity for becoming acquainted 
with that sort of human material with which he is going to 
deal. 174 
INSANITY AND THE CRIMINAL LAW 
variably give a course in the psychology of 
evidence and wherever possible arrange with 
a medical school for attendance at the psychi- 
atric clinics and be given special instruction in 
laboratories attached to juvenile courts and 
state prisons. Such opportunities for the stu- 
dent followed by an interneship in a prison with 
a well equipped psychiatric department would 
create an entirely new species of prosecuting 
attorney and criminal court judge. CHAPTER XIV 
THE FUNCTIONS OF THE CRIMINAL LAW 
The previous chapters have indicated briefly 
the nature of crime as socially destructive and 
the violent reaction of society against its per- 
petrator in order that he may be effectively pre- 
vented, either by being destroyed or rendered 
impotent by imprisonment, from continuing to 
be a further source of socially disintegrating 
activities. They have further implied how the 
criminal law, the courts, and the methods of 
procedure have grown up and gradually de- 
veloped to meet the changing popular need for 
dealing with the problem. It may be worth 
while to sum up at this point and restate the 
case. 
Man is a social animal and as such he must 
come, very early in his career, into situations 
in which his personal motives come into conflict 
with the interests of the group of which he 
forms a part, or the motives of his group come 
into conflict with the larger group or with an- 
other group. 
The conflict of groups is stressed rather than 
175 176 
INSANITY AND THE CRIMINAL LAW 
of individuals or of individuals and groups be- 
cause among the more primitive types of man- 
kind, as we have come to know them through 
the researches of the anthropologist, man as 
an individual is much less clearly defined than 
among us. He is rather thought of as a unit 
belonging to some tribe or clan. For example, 
when a canoe is to be built, it becomes at once 
the business of the group, and a number of men 
go to work at it automatically, as it were, with- 
out having to be tolled off by some one in com- 
mand. So when a canoe is to be launched a 
group of men seize it and carry it into the water, 
then spring to the oars and one of their number 
takes command likewise automatically and with 
the same precision and definiteness of a swarm 
of social insects. The individual simply does 
not exist, it is the group that stands out. Such 
conflicts when they did arise must have tended, 
as they do now, to excite feelings of hostility 
and desire for vengeance in the aggrieved 
party, but because of the nebulous character of 
the individual as such, such feelings would 
tend rather to be directed against the group 
to which the offender belonged. We would 
therefore expect to find the phenomenon of ven- 
geance against a tribe for depredations which 
may have been committed by some individual 
member, a condition of affairs which still sur- FUNCTIONS OF THE CRIMINAL LAW 
177 
vives among the more or less primitive types 
found in certain isolated and mountainous 
regions in our own country, for example, in 
South Carolina and Kentucky. 
The immediate reaction to conduct which 
later comes to be called criminal is retaliation 
based on the desire for vengeance. While we 
can now see that such reaction is, on the whole, 
calculated to preserve the group and to destroy 
disintegrating factors such a motive is prob- 
ably far from the consciousness of primitive 
man and almost as far from the consciousness 
of modem man if perchance he happens to be 
the aggrieved party. Only the impassive on- 
looker and student are, as a rule, able to read 
such an explanation into the situation. 
The desire for vengeance, on the contrary, 
is only too obvious and still exists, I believe, 
as the moving factor back of the enforcement 
of the criminal law. The important part is 
that this desire for vengeance is at first largely, 
if not altogether, impersonal. The feeling of 
vengeance is directed against the group rather 
than the individual and so it would seem that 
the prime motive is not to injure, in retaliation, 
any particular individual but rather to effect 
an adequate discharge of an emotional tension. 
We shall presently see the value of this, so to 
speak, impersonal attitude. 178 
INSANITY AND THE CRIMINAL LAW 
It is a long story which starts with this im- 
personal attitude of hostility and vengeance 1 
to the place reached to-day in the administra- 
tion of the criminal law which requires the rigid 
proof of the personal guilt of the defendant be- 
fore directing his punishment. That is the path 
which has been traveled, however, and this is 
the place which has been reached, but though the 
outward form has changed much in the journey 
the underlying emotions are fundamentally the 
same. The motive forces have not materially 
differed nor the objects to be attained, only the 
means at their disposal which may be utilized 
to effect their ends have changed. 
The obvious and grosser outward changes 
which have taken place may briefly be set forth 
as follows: differentiation of the actual offender 
from the group and the projection upon him 
individually of the group’s condemnation which 
takes the concrete form of punishment: the 
renunciation by the injured party of his right 
to wreak his individual vengeance and the sub- 
stitution of a complex social institution through 
1 This impersonal attitude, in its extreme form, is largely 
hypothetical for it is hardly to be found anywhere to-day so 
far as I know. Such relatively primitive people as exist and 
have been studied can only be said to have a less well differ- 
entiated personal attitude and so by implication we may as- 
sume that in still more primitive people it was still less well 
defined and so on to the vanishing point. We must remember 
that there are no really primitive people left on the earth. All 
the savage cultures which have been studied disclose a really 
very complex social organization. FUNCTIONS OF THE CRIMINAL LAW 
179 
which the injured party, in securing his ven- 
geance, is forced to function vicariously. The 
minor and less obvious changes which have 
been effected are in the main the denial of the 
primitive desire for vengeance as the motive 
force back of the enforcement of the law and the 
erection of a highly abstract and impersonal 
concept of the State as the offended party. 
This denial of vengeance as a motive is re- 
sponsible for many characteristics of the tradi- 
tions and procedure of the criminal law. To 
cite a few. 
The best example of the distorting results of 
a failure to recognize the real motives at work 
in a criminal prosecution, in fact, not only a 
failure to recognize them but an insistence on 
being blind to their existence is seen in the hypo- 
thetical question. No one but the jury must 
express an opinion of the guilt or responsibility 
of the defendant. The expert can only discuss 
the symptoms academically and as if they be- 
longed to some one else, to an imaginary, a hy- 
pothetical individual. As a result the hypo- 
thetical question has become the crowning ab- 
surdity of what is only too frequently the farce 
of expert testimony. Learned experts gravely 
give their opinion as to whether individuals 
who never existed are sane or insane. The 
whole process of making up the question, the 180 
INSANITY AND THE CRIMINAL LAW 
admissions and the strikings out, the modifica- 
tions and exceptions taking sometimes several 
hours, have finally created such a monstrosity 
that it is at last in a way of being recognized 
for what it is. It is, mechanistically speaking, 
a symptom formation, a cover phenomenon, de- 
veloped and elaborated to hide from view the 
real motives of hostility and vengeance and to 
lead to the comfortable assurance that every- 
thing is being conducted on a high plane where 
the evidential value of the testimony is consid- 
ered free from the contaminating influence of 
emotion. 
The psychiatrist is quite familiar with such 
results. Conflicts between opposing tendencies 
when not resolved express themselves very 
often by such compromise formations in which 
both tendencies find expression but without 
being able to join issue. Such compromise for- 
mations are always distortions and never solu- 
tions and tend, as in the case under considera- 
tion, to ever increasing symptom formations, to 
additional distortions rather than to a final solu- 
tion. And so the hypothetical question gets 
worse rather than better. 
The same principle is at work in the matter 
of prejudice. The jurors not only have formed 
no opinion but an ordinarily intelligent act, 
such as reading the newspaper, opens him to FUNCTIONS OF THE CRIMINAL LAW 
181 
the suspicion that he may have some knowledge 
of the case and so any intellectual activity 
comes to be suspicious and the only sure remedy 
is to choose a jury where mental assets are 
as near a minus quantity as possible. Of course 
this is an exaggerated statement and would 
only apply to some specific situation, for on 
the contrary, the effort sometimes is distinctly 
to get an intelligent jury, but the principle holds 
true that in attempting to root out the par- 
ticular prejudice in point one hundred other 
prejudices may exist about which nothing is 
known. Many a man with an honest prejudice 
against the defendant would make a fairer and 
better juror than one who had been through 
this process of selection by elimination but pos- 
sessed some hard and fast character traits that 
no amount of testimony would change in the 
slightest degree. 
The same thing might be said about the 
judge. He must be very careful to have had 
no contact, direct or indirect, with the case. 
But he may, and of course necessarily does, 
come to the trial with all the natural prejudices 
of his make-up. These natural prejudices, 
however, according to the rules of the game, 
remain unchallenged. In other words, a judge 
may have any prejudice on earth and it may 
be absolutely impregnable to change of any 182 
INSANITY AND THE CRIMINAL LAW 
sort, and yet if he has had no actual touch with 
the case at any point he is supposed to be pos- 
sessed of a judicial attitude of mind towards 
all the issues raised at its trial. Of course this, 
too, is an absurdity, but like all such conditions 
the first step to their improvement lies in recog- 
nizing how they have come about and what they 
really stand for instead of continuing to ac- 
cept them at their face value, which is neces- 
sarily a fictitious value. 
From the point of view of these several con- 
siderations let us consider what, as a matter 
of fact, are the functions of the criminal law 
and of the medical expert in its scheme of pro- 
cedure and how these functions are developing 
and being modified by changing concepts and 
in what direction and towards what goal they 
are progressing. 
The criminal law and practice have come into 
being as surrogates for and sublimations of 
those original actions of aggrieved persons 
based upon emotions of hostility and vengeance 
when they found what they conceived to be 
their personal rights invaded or the safety and 
integrity of their group menaced. They have 
been evolved as vicarious ways of functioning 
when, because of the increasing complexity of 
the social group personal ways of retaliation 
ceased to afford practical solutions because FUNCTIONS OF THE CRIMINAL LAW 
183 
open to such abuse and nuisance as to create 
that very instability of social structure which 
it was expedient and necessary to preserve. 
Such necessity arose, in part at least, if not 
wholly, as a result of pressure from the out- 
side. That group would prove strongest in 
battle that was best integrated, best knit to- 
gether by organization and institutions while 
that group would perish which by contrast was 
less well organized, in which the individual 
preserved an autonomy of action which was 
calculated to make for lack of organization, for 
discreetness, where each individual was a law 
unto himself, a separate source of authority 
not correlated nor adequately integrated) to 
the best interests of all. 
In this process of development we see, there- 
fore, a progressing tendency to delegate the 
authority to wreak personal vengeance to a spe- 
cial group, constituted to take over this func- 
tion vicariously, and the growth of a social in- 
stitution which functions as the avenging 
agency of an abstract State which now becomes 
the aggrieved party instead of the individual. 
Obviously such a change makes for a better 
organized, more closely knit, and highly inte- 
grated structure and as such serves the ends of 
social growth and evolution. While contem- 
poraneously with this development vengeance 184 
INSANITY AND THE CRIMINAL LAW 
has receded from the focal point of attention 
it once occupied to a place in the background 
where it is no longer obvious it remains, largely 
at least, if not exclusively, the motive back of 
the whole situation. We shall see a little later 
that other motives are just beginning to make 
themselves felt in addition to the spirit of ven- 
geance and as substitutes for it. It would 
seem that it is only by an appreciation of the 
vicarious function of the State and of the law 
that its function can be fully understood. Let 
us see: 
The jury, from this point of view, becomes 
society, or to use a more modern term, the herd, 
in miniature, reduced in size to the minimum 
number of constituent units that conceivably 
may adequately reflect its opinions and feel- 
ings. It is before such a group that the de- 
fendant is tried, the method of procedure being 
calculated, under the disabilities of the criti- 
cisms already discussed, to secure an adequate 
presentation of the evidence. As this evidence 
is presented by opposing interests a judge, in 
the nature of a referee, presides to see that 
there is fair play throughout and that neither 
side secures an undue or improper advantage. 
The further accepted principle may be added 
that the judge passes upon all issues of law 
while the jury is the sole judge of all the issues FUNCTIONS OF THE CRIMINAL LAW 
185 
of fact. In principle this would seem an ideal 
arrangement, not for the accomplishment of 
what many seem to expect of it, namely, the 
administration of abstract and absolute justice, 
—it is very much to be feared that there is no 
such thing,—but for the practical securing of 
the judgment of the herd upon any specific act 
or omission by one of its members, for after 
all, the individual, by and large, must be sub- 
jected to this judgment whether at the time 
it may seem just or not to some or whether in 
the light of future events and at a future time 
of different standards such a judgment would or 
would not hold. These judgments can only be 
understood as biological forces operating as se- 
lective agents in a practical manner and with the 
instrumentalities available in accordance with 
the standards prevailing at the time. There is 
probably, in the last analysis, just as little and, 
for that matter, just as much justice in them 
as there is in those other laws of nature which 
elect that of a million eggs laid or a million 
seeds hurled to the four winds only one or two 
shall survive and reach maturity. 
To suppose that this whole complex ma- 
chinery can grind out perfect results under con- 
ditions so protected both from without—influ- 
ences of public sentiment and private opinion 
as expressed in the press and otherwise—and 186 
INSANITY AND THE CRIMINAL LAW 
from within—existence of actual or implied 
bias—is to be blind to the nature of man and 
the motives which animate him. Freedom from 
pressure from outside opinion is probably only 
secured in trials to which the public are largely 
indifferent or in jurisdictions removed from 
the scene of the crime and when there is there- 
fore only an academic type of interest. To sup- 
pose that when the whole populace is aroused 
judge and jury remain free from the influ- 
ence of the prevailing public sentiment is 
naive in the extreme, certainly when, as is some- 
times the case, an armed force has to be sta- 
tioned in the court room to maintain order and 
prevent violence. That the ultimate motive in 
such proceedings is vengeance, and too personal 
vengeance, and that the court is only acting vi- 
cariously to that end is regrettably emphasized 
when, owing to the natural delay incident to 
legal procedure or to the stimulus of an un- 
usually heinous offense the mob seizes the pris- 
oner and proceeds at once to his execution, often 
by such cruel methods as burning. We have 
developed a complex machinery to serve sub- 
limated ends but the whole structure comes sud- 
denly to grief wrhen it is stressed beyond a 
certain point and when that occurs the raw 
material of the structure is uncovered to 
our view. This again is a familiar mechanism FUNCTIONS OF THE CRIMINAL LAW 
187 
to the psychiatrist—the mechanism of regres- 
sion. 
We see this same principle illustrated in 
another way. The attitude of the herd is, under 
certain circumstances in which it is especially 
energized, superior to and more powerful than 
the agencies which it ordinarily permits to act 
for it, and under such circumstances it breaks 
down all barriers and succeeds in expressing 
itself. It has just been indicated how this hap- 
pens in the extreme instance of lynching. The 
same thing happens in a less obvious way when 
a jury brings in a verdict of “guilty” or “not 
guilty,” as the case may be, in direct opposition 
to the evidence but in accordance with its 
feeling of what the verdict should be irrespec- 
tive of the law as laid down. This sort of thing 
constantly happens and is in fact one of the 
very important safeguards of the jury system, 
with of course its obvious disadvantages, be- 
cause it works both ways. I have seen defend- 
ants acquitted who were not only obviously and 
admittedly guilty within the meaning of the law 
but who had not a single leg to stand on, so to 
speak, from a legal point of view, and yet for 
whom every one had sympathy and wanted to 
see freed. On the other hand I have seen de- 
fendants convicted and who were afterward 
executed who were obviously suffering from 188 
INSANITY AND THE CRIMINAL LAW 
serious mental disease at the time they com- 
mitted the offense for which they were tried hut 
the offense was of such a character that no 
defense could hold. In two instances I have 
now in mind I feel reasonably sure that the 
verdict of the jury fairly well reflected the state 
of the public mind. It seems obvious that in 
considering verdicts as delivered by juries and 
enforced by the courts we are dealing with re- 
sults which have their origins deep down in the 
springs of human conduct. They are only the 
surface indications of profoundly acting bio- 
logical forces. 
One of the more subtle and, so far as I know, 
unrecognized ways in which the herd critique 
expresses itself irrespective of the legal defi- 
nitions while apparently utilizing them is in 
choosing as between the verdict of “guilty” on 
the one hand or “not guilty because of insan- 
ity” on the other. As I have attempted to show 
more fully elsewhere 2 the concepts “insane” 
and “criminal” are both pure legal and socio- 
logical concepts; they refer solely to social 
groups which have been created by law and by 
the law so labeled purely for practical purposes 
so that to inquire what may be the characteris- 
tics of an insane person or a criminal is as boot- 
less a procedure as to direct a similar inquiry 
* ‘1 The Principles of Mental Hygiene. ’ ’ FUNCTIONS OF THE CRIMINAL LAW 
189 
into the nature of the qualities of a policeman 
or a stenographer. The verdict “insane’’ or 
“criminal’’ is the final conclusion of the herd 
respecting the conduct of one of its members 
and arrived at through the medium of its repre- 
sentative, the jury. It is, in other words, 
a projected herd critique. This conclusion 
will, I think, be apparent if we will see how 
it works in particular instances. In either 
case the conduct under consideration is aso- 
cial in character. Now it is my contention 
that, in general, if this asocial conduct is posi- 
tively destructive in character, antisocial in- 
stead of just asocial and especially if it is par- 
ticularly heinous in character and was calcu- 
lated to or did in fact injure others it is more 
apt to be considered “criminal” by the jury. 
On the other hand, if the conduct in question is 
only passively or negatively asocial, that is if it 
is not aggressively destructive and is not calcu- 
lated to or does not injure others but only 
perhaps brings the defendant himself to grief 
it is more apt to be designated by the jury as 
“insane.” In the first instance “criminal” 
conduct excites the feeling of hostility and a 
desire for vengeance; in the second instance 
“insane” conduct creates a feeling of sympathy 
and a desire to help. From this point of view 
therefore it will be seen that I am contending 190 
INSANITY AND THE CRIMINAL LAW 
that the verdict is a means for enabling society 
to do what it wants to do. If it hates the de- 
fendant and wants to injure him in a spirit of 
vengeance then the verdict is “guilty”; if it 
feels sorry for the defendant, feels sympathy 
for him, perhaps hates the person he injures 
and thinks that the injury inflicted by the de- 
fendant was deserved then the verdict is “in- 
sane” or “not guilty” as the case may be. That 
this is a correct explanation seems to be indi- 
cated by the fact that such verdicts are often 
reached not only in spite of the law and the 
evidence but not infrequently in direct opposi- 
tion to it, and further this contingency is pro- 
vided for, for the jury has a right to bring in a 
verdict of a lesser degree of the crime than that 
charged even though such a verdict be abso- 
lutely in opposition to all the evidence.3 
s It happens, for example, when the trial is on the charge 
of murder in the first degree that the jury will bring in a ver- 
dict of second degree murder or manslaughter when it is per- 
fectly evident from the testimony that the defendant is either 
guilty as charged or not guilty at all. Such a verdict is 
obviously the result of a feeling on the part of the jury that 
the defendant was guilty but that he was entitled to some 
consideration and sympathy. This was the case in a recent 
case with which I was connected when there was no effort to 
deny the homicide but the circumstances were such as to elicit 
a considerable degree of sympathy for the defendant and a 
verdict of a lesser degree than that charged was the result. CHAPTER XV 
THE NATURE OF THE LAW 
At this point it is essential, in order to pro- 
ceed with the argument, to examine briefly the 
nature of the criminal law and what is sought 
by its codification and see how some of the 
difficulties have arisen from the fact that social 
ideals are always in advance of its static, more 
or less archaic, formulations. 
Much of the confusion in thinking about this 
matter has been due to lack of understanding of 
what the law really is plus the tacit identifica- 
tion of law with statutory law and the belief, 
therefore, that law was something that was 
formulated and imposed upon the people by a 
law-making body. Such a concept is quite as 
mistaken as it well can be for it confuses the law 
with its formulation as it appears in the stat- 
utes and thinks of it as imposed from without 
instead of receiving its sanction from within. 
Law is not man-made except in the sense that it 
is formulated. Law is that orderly sequence in 
which events come to pass under given and like 
conditions and which depends upon the natural 
191 192 
INSANITY AND THE CRIMINAL LAW 
qualities of things and their relations. This is 
a natural law. The only thing man can do is to 
observe such orderly sequences and relations 
and express them in formulae. That is statutory 
law. He can only discover law (natural law) 
and formulate it in descriptive terms (statu- 
tory law). He does not and cannot create it. 
Apropos of this conception of the law the words 
of the late Mr. James Coolidge Carter 1 of the 
New York Bar are pertinent and illuminating: 
“In early Rome, and in every other instance 
of which we have authentic information, we find 
that the first step in the administration of jus- 
tice has been to elect a judge. The creation of 
judges everywhere antedates the existence of 
formal law. But though formal law does not at 
first exist, the law itself exists, or there would 
be no occasion to appoint a judge to administer 
it. The social standard of justice exists in the 
habits, customs and thoughts of the people, and 
all that is needed in order to apply it to the 
simple affairs of such a period is the selection 
of a person for a judge who best comprehends 
those habits, customs and thoughts. . . . 
‘ ‘ Moreover, the only means open to us of cer- 
tainly knowing the law, namely, a resort to the 
judge, is available only in the case of an alleged 
violation; and what sort of a command is that 
which must be violated, or alleged to have been 
1 Carter, James C.: “The Ideal and the Actual in the Law,” 
annual address at the 13th annual meeting of the American 
Bar Association, 1890. THE NATURE OF THE LAW 
193 
violated, before it can be known? But, if law 
be not a command, but the mere jural form of 
the habits, usages and thoughts of a people, the 
maxim that all are presumed to know it does 
not express a false assumption, but a manifest 
truth. . . . 
‘ ‘ The office of the judge is not to make it, but 
to find it, and when it is found, to affix to it his 
official mark by which it becomes more certainly 
known and authenticated. The office of the leg- 
islator ... is somewhat, but not fundamentally 
different. . . . 
“Law is not a body of commands imposed 
upon society from without, either by an indi- 
vidual sovereign or superior, or by a sovereign 
body constituted by representatives of society 
itself. It exists at all times as one of the ele- 
ments of society springing directly from habit 
and custom. . . . 
“The statute law is the fruit of the conscious 
exercise of the power of society, while the un- 
written and customary law is the product of its 
unconscious effort. The former is indeed to a 
certain extent a creative work; but, as we have 
already seen, the condition of its efficacy is that 
it must limit itself to the office of aiding and 
supplementing the unconscious development of 
unwritten law. . . . 
“It might be thought that, inasmuch as it is 
the sole office of the judicial tribunals to find 
existing customs and not to make any, they 
could not effect improvements, which is a crea- 
tive function. . . . 
“The judge, the lawyer, the jurist of what- 194 
INSANITY AND THE CRIMINAL LAW 
ever name, continually occupied in the work of 
examining transactions and determining the 
customs to which they belong, and whether to 
those which society cherishes and favors, or to 
those which it condemns, is constantly employed 
in the contemplation of what is fit, useful, 
convenient, right—or, to use the true word, 
just. . . . 
“As custom is the true origin of law, the 
legislature cannot, ex vi termini, absolutely cre- 
ate it. This is the unconscious work of society. 
But the passage of a law commanding things 
which have no foundation in existing custom 
would be only an endeavor to create custom, 
and would necessarily be futile. . . . 
“The function of the legislator is supple- 
mentary to that of the judge. It is to catch the 
new and growing, but imperfect, customs which 
society is forming in its unconscious effort to 
repress evils and improve its condition—cus- 
toms of the existence of which the judges are 
uncertain and at variance, or which are so dif- 
ferent from former precedent that they cannot 
declare them without inconsistency—and to give 
to these formal shape and ratification. . . . 
“A custom begins to grow, and becomes more 
and more general. It is not universal. The 
judge cannot, consistently with his prior decla- 
rations, recognize it; but the unconscious forces 
of society are struggling for it, and the final 
legislative sanction is impatiently awaited. 
“In legislation, therefore, the rule should be 
never to act unless there is an end to be gained 
for which legislative action alone is competent; THE NATURE OF THE LAW 
195 
and when such action is initiated, it should seek 
to recognize and express the customs which 
society is aiming to make uniform.” 
The concept of the law as a body of gradually 
developing customs receiving its sole sanction 
from within rather than a series of commands 
imposed from without is fundamental to the 
positions taken in this book and in particular it 
is fundamental to that definition of the func- 
tions of the criminal law and of the expert un- 
dertaken in this chapter. 
In Chapter XI I have quoted two suggested 
bills covering the questions of Criminal Respon- 
sibility and Expert Testimony and have briefly 
commented upon these bills as offering reme- 
dies for existing defects which are practical and 
in accord with constitutional principles. The 
pith of the whole matter, so far as the discus- 
sion in this chapter is concerned, is contained in 
the Criminal Responsibility Bill wherein is de- 
fined what constitutes criminal responsibility. 
The section in question reads as follows: 
“No person shall hereafter be convicted of 
any criminal charge when at the time of the act 
or omission alleged against him he was suffer- 
ing from mental disease and by reason of such 
mental disease he did not have the particular 
state of mind that must accompany such act 
or omission in order to constitute the crime 
charged. ’’ 196 
INSANITY AND THE CRIMINAL LAW 
The notable feature of this section is what 
has been left out rather than what has been put 
in. Here are seen no references to delusion, 
irresistible impulse, or inability to distinguish 
between right and wrong. These tests repre- 
sent, as Keedy well says,2 “simply obsolete 
medical theories crystallized into rules of law. * ’ 
He further well says,3 “The test of the pro- 
posed section is limited to no particular symp- 
toms and embodies no medical theories. The 
question under the section is whether the symp- 
toms of mental disease, whatever they may be, 
negative the state of mind required for the 
crime charged. The proposed test will remain 
unaffected by divergent views and changing the- 
ories regarding the nature and character of 
mental disease.” 
Such a suggestion as this strikes at the very 
root of the existing evils and by avoiding a 
static formulation makes it possible to consider 
each case on its merits, free from all limitations, 
and in full accord with existing knowledge and 
theories as applicable to the questions at issue. 
It makes possible the consideration, in each 
instance, of whether, in fact, a crime has actu- 
ally been committed rather than wasting effort 
at trying to determine whether the conduct of 
zLoo. cit. 
*Loc. cit. THE NATURE OF THE LAW 
197 
the defendant can be made to fit a previously 
formulated definition. 
To quote from Carter:4 “And in the first 
place, there should be a clear notion of what a 
crime is in the eye of the law. Wrong conduct, 
socially speaking, is simply a departure from 
custom. Custom being the only test of right 
and wrong in the law, there can be nothing 
which in the view of the law is wrong except a 
violation of custom. But all wrong conduct is 
not criminal—that is, it is not properly punish- 
able by law. All crimes are violations of cus- 
tom, but all violations of custom are not neces- 
sarily crimes. There are many departures from 
custom of which the law takes no notice, or 
should take no notice, but which it should leave 
to the jurisdiction of the moral forces of society. 
The line of division between those offenses which 
are properly punishable by law and those the 
repression of which is wisely left to moral force 
is the line of probable violence. The function of 
the criminal law is to preserve society from vio- 
lence, for violence is war, and threatens the 
existence of society. It may be asked why all 
social offenses should not be punished by some 
legal penalty. The answer is that legal penal- 
* Carter, James Coolidge: “Law: Its Origin, Growth and 
Function (published by G. P. Putnam’s Sons, New York and 
London, 1907). 198 
INSANITY AND THE CRIMINAL LAW 
ties should be inflicted only where it is neces- 
sary.” 5 
From this point of view, which seems to me 
incontrovertible, that crime is a departure from 
custom of a certain degree of seriousness, it be- 
comes evident how impossible it must be to lay 
down any fixed tests over against which a given 
act can be measured in order to determine 
whether or not it is criminal inasmuch as cus- 
toms are by no means fixed but are constantly 
changing with the changing social conditions. 
The proposed bill therefore clearly leaves the 
question open to decide in each particular case 
whether custom, as then prevailing, stamps the 
act in question as criminal. 
Lest this point of view seem too intangible it 
may be well to give an illustration of just how 
the law, in its practical operation, seeks out and 
discovers the controlling custom and then ren- 
ders its decision accordingly. I will take for 
illustration the development of the marine in- 
surance law and cite what Carter has to say on 
that point.8 
“An underwriter insures a ship against the 
perils of the sea, and she is lost or damaged by 
such perils. There is no uncertainty here. Con- 
tracts of insurance have long been customary. 
6 Italics not in the original. 
8“Law, Its Origin, Growth and Function.” THE NATUKE OF THE LAW 
199 
The event having occurred against which the 
insurance was made, the insured expects to be 
made good and the underwriter equally expects 
to indemnify him. Another case of such insur- 
ance occurs and a similar loss, but the under- 
writer now learns for the first time that the 
ship was unseaworthy at the beginning of the 
voyage. Let it be supposed that the ship owner 
himself did not know that she was unseaworthy. 
He demands his indemnity and perceives no 
sufficient reason why he should not have it. It 
is the universal custom for men to perform their 
contracts, and in the case of marine insurance, 
in particular, multitudes of instances had oc- 
curred in which losses were promptly paid; in 
other words, his expectation of payment, his 
feeling that he ought to be paid, his sense of 
justice—all different expressions of the same 
thing, are founded upon this custom. If we em- 
ployed the language of logic we should say that 
he assigned the case to the class of binding con- 
tracts. But the underwriter takes a different 
view. He says, ‘No intelligent and honest man 
sends an unseaworthy ship to sea. The univer- 
sal custom is the other way. There may be ex- 
ceptions, but they are very few. All ship own- 
ers have their ships examined and put in com- 
plete condition to meet the perils they are likely 
to encounter, and if any one fails to do this he 
is grossly negligent. I had a right to rely on 
this custom; I did rely upon it and supposed I 
was insuring a seaworthy ship.’ The ship 
owner replies, ‘No rule has ever as yet been laid 
down to the effect that an applicant for insur- 200 
INSANITY AND THE CRIMINAL LAW 
ance warrants that his ship is seaworthy. Yon 
are endeavoring to incorporate into the contract 
a stipulation which is not to be found there. I 
did not deceive you. You could have examined 
the ship as easily as I could, and if you failed to 
do so the fault is your own. I know very well 
that ship owners are in the habit of examining 
their ships before sending them to sea. I exam- 
ined this one, but did not happen to discover the 
defect.’ The case is made the subject of litiga- 
tion, the reasons of the contending parties are 
subjected to close examination, and the final 
decision is that there was in the contract an 
implied warranty that the ship was seaworthy, 
and consequently that the assured was not en- 
titled to recover for his loss. Here was an un- 
certainty arising from a reasonable doubt con- 
cerning the category in which a particular case 
should be placed. It was terminated by the 
decision; but doubts of the like character con- 
tinually arose in the development of the same 
branch of the law, as cases presenting novel 
features disclosed themselves. "When a ship 
owner, having a ship at sea uninsured or not 
fully insured, and having received intelligence 
that she had encountered severe weather which 
might have damaged or destroyed her, effected 
an insurance upon her without disclosing his 
knowledge, and a loss having occurred, made a 
claim for indemnity, it was a matter of uncer- 
tainty whether the law should allow it. The 
decision resolved that and added a new rule to 
the law of insurance, and when a similar claim 
was made upon a policy effected under like cir- THE NATURE OF THE LAW 
201 
cumstances, and with a like failure to disclose, 
but with the new feature that the underwriter 
actually knew, from other sources, all the infor- 
mation which the assured failed to disclose, still 
another uncertainty arose, which was in turn 
removed by judicial decision, and another rule 
was added to the same branch of law. In this 
way, the whole law of insurance has been built 
up, and what is true of insurance is true of 
every other branch of the unwritten law. ’ ’ 
The arguments of Mr. Carter were for the 
purpose of showing the impracticability of at- 
tempting a codification of the unwritten law. 
This illustration, quite apart from the general 
trend of his argument, however, shows very 
clearly how the law gradually develops as a 
mass of tradition growing out of decisions of 
particular cases each one presenting unique 
features and what is peculiarly to the point 
here, how it can best develop in this way rather 
than as a result of premature formulations 
which at a later date prove to have been unwar- 
ranted but against which each particular case 
has still to be measured. The example of the 
law of marine insurance illustrates well but 
meagerly how complex and in the main, at least, 
unpredictable human actions are. How true 
this must also be in the realm of criminal law 
where the whole realm of mental functions 
comes in for review! Under such circumstances 202 
INSANITY AND THE CRIMINAL LAW 
it is plain why the various tests of insanity, 
formulated as they were many years, yes even 
generations ago, must have operated as a handi- 
cap to the development of practice and the evo- 
lution of legal tradition in the realm of the 
criminal law. The proposed statute attempts to 
correct this by leaving out of consideration en- 
tirely concretely specified tests of insanity and 
responsibility and substituting the general 
proposition that the accused can only be found 
guilty if it is determined that, at the time of the 
criminal act, he had “the particular state of 
mind that must accompany such act or omission 
in order to constitute the crime charged. ’ ’ 
Or to take another illustration which tends to 
prove the same things but which shows perhaps 
a little more clearly how the court, with the aid 
of the jury, is engaged in determining what, as 
a matter of fact, are the customs of which soci- 
ety approves. The illustration is also taken 
from the writings of Mr. Carter.7 
“Let me employ here, as I have endeavored 
to do throughout, the true method of scientific 
investigation, and again scrutinize the actual 
process of judicial inquiry as it takes place from 
day to day. I may take the homely instance of 
a milkman suing for milk which he has fur- 
nished. The defendant pleads and proves, as a 
complete, or, at least, a partial defense, that the 
7 ‘1 The Ideal and the Actual in the Law. ’ ’ THE NATURE OP THE LAW 
203 
milk was watered, and the plaintiff seeks to 
avoid the effect of the evidence by proving that 
milkmen generally thus adulterate their milk. 
This is the nature of the transaction, and the 
parties, or their counsel, enter upon the argu- 
ment before the judge. They talk of principles 
and rules. But these are nothing hut customs. 
The plaintiff tacitly relies upon the rule or prin- 
ciple that purchasers must pay for the goods 
they buy. Without this he would have no prima 
facie case even. But why is this a principle? 
Plainly, for no other reason than that it is the 
universal custom. If such were not the custom, 
there would be no such principle. But the de- 
fendant insists that the adulteration of the milk 
is not a custom, and it is upon this that the real 
contest turns. The plaintiff points to his proof 
that milkmen generally are given to this prac- 
tice. The defendant criticizes this evidence. 
He points out that it does not appear that every 
milkman waters his milk, and so that the custom 
is not universal, even among milkmen. He 
shows that those who do it, do it in secret, and 
so the custom is not known. He argues that the 
selling of milk is but an instance of the larger 
custom of selling goods generally, and that the 
sellers of goods generally do not adulterate 
their wares; and finally, he shows that the adul- 
teration of milk, so far as it is a custom at all, 
is the custom of those who are denominated in 
society as rogues, whose practices are wholly 
exceptional, and that the real custom of society 
is to condemn it. 
“We thus perceive that the whole argument 204 
INSANITY AND THE CRIMINAL LAW 
of the parties, although they are constantly 
speaking of rules and principles, really turns 
upon what the customs are, and that rules and 
principles are only other names for custom. 
The judge accepts the argument of the defend- 
ant, and his decision consists simply in affirm- 
ing that the transaction, instead of coming 
under a custom which society approves, falls 
under one which it condemns; in other words, 
that it is contrary to the general practice 
of men.” 
In these illustrations we see very simply set 
forth just how the court, aided by the jury, is 
functioning to find the law, the custom, the 
state of the popular mind with reference to a 
given set of facts. The jury is a group of men 
chosen, more or less indiscriminately, from the 
society in which the alleged crime was commit- 
ted and their reaction to the crime may be con- 
sidered fairly to represent the state of the popu- 
lar mind regarding it. The verdict of the jury, 
therefore, as I have already indicated, can only 
be conceived of as a reflection of the herd 
critique. A verdict of “guilty’’ is a reaction 
from the herd, as represented by the jury, of 
“thumbs down”; while a verdict of “not 
guilty” is a reaction of “thumbs up.” In the 
same way, as I have elsewhere indicated, ver- 
dicts of responsible and irresponsible, or more 
technically of “sound” or of “unsound mind,” THE NATURE OF THE LAW 
205 
represent the affective orientation of the herd 
towards the offender. If the offense seems to 
the jury as peculiarly atrocious no amount of 
scientific expert evidence to the contrary will 
serve to forestall a verdict of “guilty,” while 
if the offense is of such a character as to excite 
their sympathy the herd critique is reflected in a 
verdict of “unsound mind.” 
This point of view is quite different from that 
usually prevailing and serves to put quite 
another interpretation on the concept of “jus- 
tice.” Justice from this standpoint is nothing 
more than the reaction of the herd after a full 
and fair hearing of all the facts involved and is 
quite in keeping with the tenets of a determinis- 
tic psychology. If one puts his finger in a flame 
the finger is inevitably burned; if one offends 
the herd in certain ways the results are as in- 
evitable and the individual must be as prepared 
to accept the consequences in the one instance 
as in the other. It would seem that pratical 
experience, as in the cases previously cited, for 
example, demonstrate the validity of this way 
of looking at the facts. Only in such a way can 
verdicts which are entirely illogical and out of 
accord with the facts as testified to be ade- 
quately explained and understood. If this is 
in reality a correct assumption it affords a still 
further reason for abandoning special tests of 206 
INSANITY AND THE CRIMINAL LAW 
insanity, as provided in the suggested legisla- 
tion, in order that the jury may be left abso- 
lutely free to adequately reflect the feelings of 
the herd which they represent. CHAPTER XVI 
THE FUNCTIONS OF THE MEDICAL EXPERT 
Again, if the point of view as set forth in the 
previous chapters be correct, what is the func- 
tion of the expert in this situation? The answer 
is easy. His function is to take the bald fact of 
the offense and then by an elaborate and de- 
tailed setting forth of the personality make-up 
of the offender, and of the various social factors 
involved, in short, by a description and explana- 
tion of the whole energic situation, both from 
the point of view of the make-up of the offender 
and the environment of the offender, give the 
offense its setting, show how it is related to and 
grew out of all of these factors, in short he has 
the function of adding a multitude of facts for 
the jury to take into consideration in rendering 
the verdict. A man who takes a loaf of bread 
which does not belong to him is technically 
guilty of theft and should, in the absence of any 
other facts bearing on the case, be punished 
accordingly. To say that the trial of the case 
should stop with the proof of the fact of the 
misappropriation might have been a tenable 
207 208 
INSANITY AND THE CRIMINAL LAW 
argument once, but it is no longer and if at- 
tempted would indicate a hopeless lack of infor- 
mation as to the nature and motive forces of 
human behavior. The added fact that the man 
was hungry when he took the bread cannot by 
any chance be considered as unimportant, in 
fact it may well be the most important of all 
the facts bearing on the situation and it will be 
noted that it is important as tending to estab- 
lish in the minds of the jury that feeling of 
sympathy which will find its reflection in their 
final verdict. The further facts of what he did 
with the bread may also be of prime signifi- 
cance. Did he eat it? Did he share it with one 
equally hungry? Did he take it home to a starv- 
ing family? Did he sell it and with the money 
buy whisky? Did he feed it to his pigs? Did 
he throw it away? Or did he do one of a thou- 
sand other possible things with it? The answers 
to these questions are not only pertinent in 
showing the motive for the stealing but also they 
are pertinent in formulating an effective orien- 
tation on the part of the jury of antagonism or 
of sympathy. If it were proven that he stole 
the bread because he was hungry as demon- 
strated by the added fact that he immediately 
ate it and it were further proven that he was so 
constituted because of mental defect that he 
was unable to earn the necessary money to buy FUNCTIONS OF THE MEDICAL EXPERT 
209 
it, social conditions perhaps being such that de- 
fective persons such as he who were only capa- 
ble of the simplest labor could not get employ- 
ment, then these added facts serve to give the 
act its adequate personal and social setting so 
that the jury not only knows that a loaf of 
bread has been taken which did not belong to 
the defendant, but they know the nature of the 
act without which knowledge they are wholly 
incapable of rendering an intelligent verdict 
and it can be fairly assumed that a verdict ren- 
dered under such circumstances will be very 
different from a verdict that is based only upon 
a finding as to whether the loaf was or was not 
taken and nothing more. It may further be 
safely assumed that that verdict will reflect 
such sympathy as the added facts may warrant, 
sympathy being understood to stand for that 
quality which enables one to put himself, in his 
feelings, in the place of the other fellow and so 
to appreciate, at first hand, his position with 
reference to all of the facts, his temptations, his 
weaknesses, his disappointments, desires, ambi- 
tions, wishes, tendencies and all that sort of 
qualities which make him a human being at one 
with others. A jury in such a case, free from 
the impedimenta of artificial and static tests to 
which they are required by law to adjust their 
findings, will find the law and the custom much 210 
INSANITY AND THE CRIMINAL LAW 
more accurately because there are less obstacles 
to the free reflection of the feeling of the popular 
mind. Static formulations in the way of tests 
only serve to cause compromises and evasions 
which are, in their end results, of necessity 
distorting. The jury needs, as far as possible, 
to be left as free agents through which the law 
as it exists in the popular consciousness may 
flow to free expression. It is the function of the 
expert to furnish the facts which make this 
result, as far as can be, possible. 
It is worth while making, in passing, a com- 
ment which, while it may not be pertinent to 
the subject of this book, is still of importance in 
gaining that larger view of the meaning of the 
criminal law and the methods of procedure with 
which the book necessarily deals. The comment 
is this: that the progress of criminal procedure 
has been steadily away from that personal 
wreaking of vengeance by the aggrieved party 
and in the direction of a more and more imper> 
sonal meting out of justice by a tribunal regu- 
larly constituted for that express purpose, and 
that the personnel of that tribunal must have, 
among other qualifications, that of having no 
personal interest in the issue being tried. This 
progress can be seen, for example, in the fact 
that early in the jury system juries were chosen 
who knew the contestants or the defendant, the FUNCTIONS OF THE MEDICAL EXPERT 
211 
idea being that because of that knowledge they 
were better able to pass upon the merits of the 
case, while now they are chosen because they 
know nothing of the contestants or the defend- 
ants on the theory that they will thus bring a 
judicial attitude of mind to bear upon the ques- 
tions at issue. It will be seen how this change 
makes it possible to effect still further changes 
that are calculated to get at the real merits of 
the broader, and more particular social issues, 
unhampered by the distorting effects of preju- 
dice or of powerful emotions. This is a devel- 
opment along lines which make for the possible 
sublimation, as it is called, of the more primi- 
tive instinctive tendencies into motives for con- 
duct of a higher order. The bearing of these 
facts upon the further development of the 
criminal law will be discussed in the following 
chapter. CHAPTER XVII 
THE ARGUMENT 
The attempt has been made in the preceding 
pages to picture the criminal law as an institu- 
tion which has come into existence and devel- 
oped in response to the necessity of protecting 
society from certain forms of disintegrating 
forces which express themselves through the 
personalities of certain individuals—the crimi- 
nals. It has been shown how the reaction 
against such forces was originally blind and in- 
stinctive, apparently only calling for a discharge 
of emotion with little consideration of the effect 
of that discharge or the relation between the 
offense committed and the individual offender. 
The object, being the discharge of an emotion, 
was effected by the direct action of the individ- 
ual or group offended. From such early begin- 
nings there has evolved the vast institution of 
the criminal law with its police forces, courts, 
and prisons which serve to vicariate for the 
offended party which in turn has become the 
highly complex symbol Society. This, in gen- 
eral, is the situation as it exists to-day. 
212 THE ARGUMENT 
213 
The aims, purposes, and ideals of the admin- 
istration of the criminal law have changed from 
generation to generation and are now under- 
going modifications of the utmost significance 
which it has been the purpose of this hook to 
attempt to define. Originally, apparently, ven- 
geance, as a blind instinctive response, was the 
only object. But with the growing complexity 
of the social group this became progressively 
more and more impracticable as it tended to 
perpetuate a degree of individual autonomy 
which was destructive to that high degree of 
integration upon which the structure of society 
necessarily reposes—it was calculated to defeat 
its own ends. The natural result of this state of 
affairs was the creation of a special class, the 
judges, to act as intermediaries, so to speak, in 
the settlement of disputes. In other words 
there began to grow up a special class set aside 
for the administration of justice and who, as 
vicarious agents of the offended, meted out jus- 
tice and punishment but by being once removed 
from the offended party tended to dilute or 
mitigate the disadvantages of instinctive, direct 
action. 
The immediate object of punishment could 
only have been, biologically speaking, the elimi- 
nation by destruction, segregation or otherwise 
of the forces that were destructive of social 214 
INSANITY AND THE CRIMINAL LAW 
integration and as they expressed themselves 
in the person of the criminal. Execution and 
imprisonment were the agencies brought to bear 
to effect this result, to which was added the 
infliction of bodily suffering to deter the crimi- 
nal from further transgression and others by 
fear of the consequences. These tendencies 
necessarily went hand in hand with that change 
away from the infliction of injury solely as an 
outlet for antipathic emotion and required that 
the actual offender should be the object of the 
wrath of the law. 
So long as the concept criminal was limited 
to just those individuals whose conduct was 
counter to the criminal statutes and no consid- 
eration was given to the offender as a person- 
ality these remained the objects of the criminal 
law. Convicted criminals were sentenced to 
arbitrary terms of imprisonment, were turned 
over to their jailers, the doors of the prison 
were closed upon them and they were from that 
moment forgotten and left to the tender mercies 
of the prison officials. Out of such a system 
arose all those abuses of prison management 
about which so much has been written in late 
years. It was but natural that the criminal, 
under such a system, should be considered as an 
antisocial individual, perhaps even as hardly 
human, and that his incarceration should be THE ARGUMENT 
215 
effected along the lines of least resistance, which 
meant, in the minds of the ignorant prison offi- 
cials maximum measures of repression. 
The abuses that grew up under this system 
of repression continued for an unending period 
because society felt that it had no responsibility 
for those less than human creatures who were 
its enemies, and there was nothing in the situ- 
ation itself out of which improvement could 
grow. 
Now comes psychiatry! What is its mes- 
sage ? Based upon a deterministic1 psychology 
it sees any given act of an individual as an end 
result determined and receiving its full expla- 
nation and meaning in the light of his person- 
ality make-up as effected by environmental cir- 
cumstances. As an end result it depends upon 
the balance struck by his assets and liabilities 
brought to bear upon the specific problem of the 
moment and so can only receive its full explana- 
tion in the light of his hereditary endowment, 
the tendencies engrafted by experience and 
education up to that point in his life and the 
1 This term need not disconcert the reader. It is used here 
only in a pragmatic sense. Few would disclaim that psychic 
events have their causes. That is all I intend to convey. 
Whether these causes are as absolutely deterministic as in the 
realm of physics, whether an acceptance of determinism does, 
away with the doctrine of free will and reduces the individual 
to an automaton are questions for philosophical speculation and 
in no way impair the acceptance of the pragmatic doctrine of 
the operation of causes in the psychological realm. 216 
INSANITY AND THE CRIMINAL LAW 
bearing of the peculiar circumstances of the 
situation upon these. Each act therefore, in 
its explanation, becomes an exquisitely individ- 
ualistic problem. Concepts such as criminal, 
insane, feeble-minded have in the past ex- 
pressed this point of view in an extremely crude 
and general way. The new analytic psychology 
goes much deeper in its analysis of motives and 
delves beneath the surface of the obvious into 
the region of the so-called unconscious where 
reside those primitive tendencies of which the 
individual himself may be quite unaware and 
yet which, in their efforts at expression, avail 
themselves of all manner of devious by-ways 
which are calculated to obscure their real mean- 
ings. The example of vengeance as it operates 
vicariously through the agency of the criminal 
law is an instance in point of a primitive in- 
stinct posing as something else—justice. Only 
by an uncovering of the whole history of devel- 
opment of what the criminal law is seeking to 
accomplish is such a submerged tendency 
brought to light. Only when we have run the 
tendency to its lair and know it for what it is 
do such phenomena as lynchings come to be 
adequately understood. The law has to func- 
tion with a reasonable degree of efficiency on 
pain of liberating this primitive monster. 
From this point of view the function of the THE ARGUMENT 
217 
court, and more particularly of the medical ex- 
pert, becomes apparent. The court with the 
aid of the jury has to find the law—the custom; 
the expert has to supply all the multitudinous 
facts about the defendant and the acts or omis- 
sions of which he is accused, in addition to those 
that appear on the surface and which, because 
of his training, only he is able to obtain, for the 
use of the court and the jury in arriving at their 
conclusion. The conclusion—verdict—of the 
jury is the verdict of society, expressed through 
them, passed upon all the facts as testified to 
and whether it may or may not seem just to any 
given individual it is a verdict rendered in ac- 
cordance with the state of enlightenment then 
existing in that society and represents the state 
of the popular mind when confronted by the 
facts in evidence. Justice, therefore, instead 
of being an absolute and perfect dispensation 
of the law is seen to be but such a pragmatic 
social adjustment as meets with popular ap- 
proval. CHAPTER XVIII 
PUNISHMENT 
Now to add a few brief comments on the 
theory of punishment so far as it bears in the 
direction of the development of the law and its 
method of procedure. 
Although the developmental path from imme- 
diate retaliation in an act of personal or tribal 
vengeance for a wrong suffered to the elaborate 
machinery of the law of to-day which, with its 
institution of judicial tribunals functions vica- 
riously for the wronged individual or group, 
has been a long one there remain obvious ves- 
tiges of the old instinctive reaction of vengeance 
as pointed out in the active phenomena of 
lynchings and the passive permission so long 
granted prison authorities to abuse their 
charges. Still the development has been away 
from personal retaliation and in the direction 
of the impersonal as symbolized by the concepts 
of the State and Justice, and has proceeded so 
far as to render further progress in the near 
future at least hopeful. The acceptance of the 
defense of irresponsibility, not only in the de- 
218 PUNISHMENT 
219 
fense of insanity but as applied to juveniles; 
the wide recognition of mental defectiveness in 
its bearings upon antisocial conduct; the defi- 
nite attempts at reform by the organization of 
reformatories, the resort to indeterminate and 
suspended sentences, and the passage of parole 
laws; the introduction of psychiatrists in 
prisons and the utilization of their services in 
connection with courts, particularly juvenile 
courts; the recognition of criminology as a 
branch of the social sciences are all auguries 
that point in the right direction. What is this 
direction! 
In the first place, it has come to be recognized 
that crime is a social phenomenon as much if 
not more than it is an individual question. So 
soon as the individual crime is studied with care 
and in a scientific spirit of inquiry it is found 
that it can be understood, in every instance, as 
the natural outgrowth of the factors involved 
and those factors are individual and social in 
their play back and forth, one upon the other. 
Crime, therefore, can never be eliminated by an 
exclusive attention to only one element involved 
in its causation. The enormous factor of the 
expense of police, prisons, courts and the com- 
plex social machinery that radiates from them 
has finally added the spur of necessity to the 
attempt to find some more effective way of deal- 220 
INSANITY AND THE CRIMINAL LAW 
ing with the phenomena of antisocial conduct 
than that heretofore developed. Criminology, 
taking its cue from medicine, aims at preven- 
tive principles or, in lieu of that, then the 
next best thing, the social rehabilitation of the 
criminal. 
The movement in these directions is not alto- 
gether humanitarian, although largely spon- 
sored by humanitarian arguments. It is also, 
and perhaps more importantly from the stand- 
point of its possible success, what might be 
termed a movement in the direction of economy 
and efficiency. It has come to be pretty thor- 
oughly appreciated that the mere sending a 
man to prison for a fixed term, at the end of 
which he is discharged a more distorted per- 
sonality with even greater antisocial tendencies 
than when he went in, is a decidedly extrava- 
gant and wasteful, not to say unintelligent pro- 
cedure. The courts and the prisons are largely 
occupied with the recidivist. 
To improve this state of affairs it is helpful 
to look upon each individual from the stand- 
point of his social assets and liabilities with a 
view to seeing whether it is not possible to de- 
velop the former and minimize the latter. If 
each criminal could be considered from this 
point of view and his tendencies regulated ac- 
cordingly then, instead of the wasteful and ex- PUNISHMENT 
221 
travagant system now prevailing there would 
be a system calculated to produce the greatest 
possible results of social value from the mate- 
rial in hand. Under such a system a criminal, 
by virtue of his antisocial conduct would be 
taken charge of by the State, not for a definite 
term, but indefinitely until he showed positive 
evidence of being able to live as a member of 
the community, if not definitely as a useful citi- 
zen still not as an actively antisocial unit. He 
would be dealt with precisely as now the com- 
mitted insane and feeble-minded are dealt with. 
He would be continued in an institution until 
he had sufficiently improved to have his liberty 
or until a reasonably protected situation outside 
of the institution could be developed for him. 
It might be well at this point, for the pur- 
poses of clarity of presentation, to discuss 
briefly a criticism that has been made, and was 
to be expected of one, in particular, of the sug- 
gestions made thus far. I refer to the sugges- 
tion of having the jury practically free from 
the necessity of conforming to legal definitions 
of responsibility in arriving at their final ver- 
dict as set forth in Chapter XVI. This situa- 
tion is already fairly well, but not fully, taken 
care of by the statute advocated in Chapter XI. 
This statute provides that if a person is guilty 
he is removed to prison to serve a sentence or 222 
INSANITY AND THE CRIMINAL LAW 
otherwise disposed of but if, by reason of men- 
tal disease he was not responsible ‘i then the 
jury shall return a special verdict that the 
accused did the act or made the omission 
charged against him but was not at the time 
legally responsible by reason of his mental dis- 
ease.” Then Sec. 3 runs as follows: 
“Sec. 3. Inquisition. When such special 
verdict is found, the court shall remand the 
prisoner to the custody of (the proper officer) 
and shall immediately order an inquisition by 
(the proper persons) to determine whether the 
prisoner is at that time suffering from a mental 
disease so as to be a menace to the public safety. 
If the members of the inquisition find that such 
prisoner is mentally diseased as aforesaid, then 
the judge shall order that such person be com- 
mitted to the state hospital for the insane, to 
be confined there until he shall have so far re- 
covered from such mental disease as to be no 
longer a menace to the public safety. If they 
find that the prisoner is not suffering from 
mental disease as aforesaid, then he shall be 
immediately discharged from custody.” 
In other words, if he is guilty he goes to 
prison; if he is insane he goes to the state hos- 
pital. In either case he is confined and society, 
during the period of that confinement, is pro- 
tected. PUNISHMENT 
223 
Under present practices if the defendant is 
found to be of “unsound mind” at the time of 
the commission of the alleged crime he is gen- 
erally discharged upon the return of the verdict 
of “not guilty.” The proposed statute throws 
an additional safeguard about such a situation 
by providing a special form of verdict, in effect, 
“not guilty—because of insanity,” and then in 
addition provides for an inquisition into the 
then existing state of mind of the prisoner with 
the provision that if he is suffering from a 
socially dangerous form of mental disease he 
be confined in the state hospital until he is no 
longer a menace to the public safety. 
Of course such a statute may cause the ap- 
prehension that it will be invoked to declare a 
person “not guilty” because of mental disease 
at the time of the alleged crime and then, be- 
cause at the time of inquisition he is well, to let 
him off completely from the consequences of his 
act. This, however, is not so different from 
the results of present methods. Such results 
though usually occur, and would probably usu- 
ally occur under the operation of the proposed 
statute, only in those cases in which the defense 
invoked is the “unwritten law.” In this class 
of cases the jury usually takes matters into its 
own hands anyway. 
The remedy for abuses, if abuses of the na- 224 
INSANITY AND THE CRIMINAL LAW 
ture suggested occur under this statute would be 
by a more liberal interpretation of what was 
meant by unsoundness of mind and of the limi- 
tations of the evidence of the experts. Psychi- 
atry has long since learned that no adequate 
understanding of a personality can be gained 
by examining a cross-section of it at any par- 
ticular time. It has learned to apply the 
natural history method of studying a longitudi- 
nal section of an individual. In this way, and 
in this way alone, can an adequate appreciation 
be had of the personality make-up and the sig- 
nificance of the various factors that enter into 
it. If the inquisition would study the prisoner 
from this point of view they would be in a 
position to serve best both him and the interests 
of society. 
The further apprehension that the criminal 
would frequently escape the consequences of 
his act by being sent to a hospital rather than 
to a prison is based wholly upon a misconcep- 
tion. The basic object of criminology is to 
cure the fault, or at least do the best that can 
be done and not wreak vengeance upon the 
offender. Society would be as adequately pro- 
tected with the criminal in a hospital for the 
insane as if he were in a prison and there would, 
too, be a better chance that he might come out, 
in part at least, socially rehabilitated. In this PUNISHMENT 
225 
connection it is interesting to note that a review 
of the criminal population of Saint Elizabeth’s 
Hospital shows that the criminal who is sent 
here from prison stays in the hospital on an 
average of two and one-half times longer than 
he would have stayed in prison had he been 
discharged at the expiration of his sentence. 
This ought to help satisfy those who want the 
criminal punished. The principle is that the 
criminal by his own acts, so to speak, commits 
himself to the custody of the state there to stay, 
not for an arbitrarily predetermined time, but 
until he demonstrates by positive evidence, his 
ideas and his conduct, that there is reason to 
believe he might get on outside. Just as soon 
as he merits a trial then he may have it—not 
before. It is precisely this principle that gov- 
erns the custody of the insane and it operates 
with this class without serious difficulties. Why 
should it not operate with criminals? The fear 
that it will not is largely built up of imaginings 
and not actual experience. The problem is of 
the same nature—a problem of behavior. 
Such a scheme of treatment as this would in- 
volve in addition the recognition that the ex- 
tremely abnormal environment which is com- 
monly provided by the prison, with its extreme 
measures of confinement, its cells, its rules of 
silence, its absence of recreation and of all 226 
INSANITY AND THE CRIMINAL LAW 
socializing and humanizing opportunities could 
by no means operate to produce such a result, 
but on the contrary, operating as so many 
means of repression drive the individual further 
and further away from the possibility of devel- 
oping socially desirable qualities and in the 
direction of an ever increasing tendency toward 
those infantile, less developed types of reaction 
which are the material out of which criminal 
conduct is made up. 
The uselessness of punishment as usually con- 
ceived and applied, namely, as wholly repressive 
in nature, is more easily appreciated when it is 
known that the criminal population of our pris- 
ons is at least fifty per cent defective or actively 
psychotic from the standpoint of well recog- 
nized methods of examination and sizing up 
human material. What possible prospect can 
purely repressive measures have with such ma- 
terial? The annals of the criminal courts and 
the prison easily give the answer. This is the 
material from which come the recidivists, those 
persons who have a drive in a certain direction 
(criminal) so strong that they spend their whole 
life in doing the same sort of thing over and 
over again. As soon as they get out of prison 
and get the opportunity they at once resume 
their habitual modes of conduct. I have known 
many criminals who kept this up not only for PUNISHMENT 
227 
many years but until old age. No amount of 
prison experience changed them a particle. 
Such a scheme would recognize still further 
that punishment as such is of no avail. The 
principle here is the same as that involved in 
the rearing of children and the history of pun- 
ishment as administered is similar in the two 
instances. Punishment has been administered 
on the theory that the individual is wicked, and 
its effect is to make him more resentful, more 
full of hate and so more wicked. It has been 
administered on the theory that it would offer a 
wholesome example to others, but the study of 
human behavior has shown how the criminal act 
issues as a logical sequence of the factors of 
personality make-up and the social forces in- 
volved so that the good example is only appre- 
ciated by those who do not need it and for the 
others it has no meaning because they, for the 
most part, are blind to its application to them- 
selves. And finally it has been administered, 
probably in the large majority of instances, not 
because of any good effect it was calculated to 
have upon the offender, except as a reason after 
the fact and so to excuse it, but as a means of 
emotional expression of the persons inflicting it. 
Punishment should, obviously, it would seem, 
be used, if used at all, solely as a means of 
conditioning conduct in a way that would make 228 
INSANITY AND THE CRIMINAL LAW 
the socially desirable the path of least resist- 
ance. As soon as this point of view is assumed 
it can be seen at once that the deprivation of 
liberty incident to the State taking over charge 
of the social offender is in most instances pun- 
ishment enough and as for the rest disciplinary 
procedures could, for the most part, be advan- 
tageously limited to temporary deprivations of 
liberty and privileges, which should only be a 
part of the larger scheme which all the time is 
making for social rehabilitation. 
It is recognized that in every penal institu- 
tion there are a few, perhaps not more than 
four or five in a thousand, who cannot be favor- 
ably influenced by any pleas that we know how 
to make or inducements that we are able to 
offer. These few, however, offer a very special 
problem and it is not right, nor fair, nor desira- 
ble that the other nine hundred and ninety-five 
should be treated by a standard set by them. 
Because, for example, four or five might abuse 
the privilege of freedom of speech the nine hun- 
dred and more should not be deprived of the ex - 
ercise of that human faculty, which, more than 
any other, distinguishes man from the brute. 
These few, because they are special problems, 
undoubtedly need special treatment, perhaps in 
a separate department of the prison, perhaps in 
a separate institution. The problem is a difficult PUNISHMENT 
229 
one about which little is known, hut it needs to 
be intensively studied to the end of finding a 
solution along the same lines of the larger 
problem.1 
The theory of the treatment of crime, there- 
fore, resolves itself into two parts. First, to do 
away, so far as possible, with the conditions 
(mental defectiveness, insanity, and immoral 
social conditions, etc.) out of which crime 
grows; and second, the salvaging of the crimi- 
nal for social usefulness. 
The criminal, considered as an individual, 
may be considered in the majority of instances 
to have a certain percentage of social value. It 
may be only ten or fifteen per cent, it may be 
much higher. The function of the State should 
be to try to make that amount of energy avail- 
able as a social asset rather than let it be uti- 
lized solely in socially destructive activities. 
It will now be seen how the development away 
from the reaction of personal vengeance makes 
the best development in the treatment of the 
criminal possible. It is only at a stage of 
development far removed from the primitive 
types of reaction that such a scheme as that 
outlined begins to become possible. Such rem- 
1 See in this connection Spaulding, Edith R.: * ‘ An Emotional 
Grisis, A Description and Analysis of an Episode that Oc- 
curred Among Psychopathic Women,” Mental Hygiene, Yol. 
V, No. 2, April, 1921. 230 
INSANITY AND THE CRIMINAL LAW 
nants of the vengeance reaction as still exist 
can be satisfied by the arrest, trial and convic- 
tion. Once the prison doors close upon the 
offender he is so far removed from the herd as 
to make the elaboration of such a scheme 
feasible. The suggestions which have been 
offered in the previous pages as to the modifi- 
cations of procedure and as to the part in this 
procedure which the medical expert witness 
should play were made in furtherance of such a 
scheme. The earnest of its successful accom- 
plishment lies in the fact that it is in the interest 
of society. 
I will close this chapter by a report of a case 
which includes a discussion of some vital ques- 
tions regarding capital punishment. 
A PRISON PSYCHOSIS IN THE MAKING 
Case XV. A.colored woman under sentence 
of death develops a psychosis of a compensatory 
nature (prison psychosis) calculated to prove 
to her that she is not guilty because she has seen 
the deceased in her hallucinations. 
The whole subject of the prison psychoses is 
comparatively a new one, especially in this 
country, and very little has appeared in the 
literature regarding them. The present case 
is therefore reported as it shows well the mech- PUNISHMENT 
231 
anisms in this form of mental disorder con- 
ditioned by factors outside the patient, and 
serves very well to illustrate the way in which 
such factors operate. 
The patient, a colored woman, thirty years of 
age, had been convicted of murder in the first 
degree and sentenced to be hanged for killing 
her husband. I made two examinations of the 
prisoner, which examinations were made while 
she was under sentence of death. 
At the first examination the general plan 
was carried out of making as systematic an 
examination of the mind as possible, using 
among other things the prescribed forms of 
intelligence tests. In addition to this a neu- 
rological examination was made covering the 
condition of the nervous system, and also cer- 
tain examinations of the internal organs. The 
result of this examination was negative. The 
prisoner appeared to be an ordinary colored 
woman with about the usual limitations of in- 
telligence of her race. There were no neuro- 
logical defects, and nothing of any account was 
brought out that was abnormal except the con- 
dition of both apices of the lungs. It was un- 
derstood that a diagnosis of pulmonary tuber- 
culosis had been made, and my examination 
was confirmatory of that diagnosis. 
In addition to the negative results of this 232 
INSANITY AND THE CRIMINAL LAW 
examination, it was brought out that the pris- 
oner was irritable and that she got into diffi- 
culties with other prisoners and with the 
matron. It was also discovered that on previ- 
ous occasions, either during or pending her 
trial she had certain convulsive, probably hys- 
teriform attacks. 
The sum total of the first examination is 
therefore a rather simple minded colored 
woman in not very good health, with negative 
findings so far as the neurological examination 
went, and with a history of marked emotional 
instability and irritability. 
At the close of this examination her spiritual 
adviser told me about certain ideas that she 
had expressed to him, namely, of having seen 
her husband since she had been locked up in 
the jail. I immediately went up to the pris- 
oner’s cell and asked her about these ideas 
and she told me that she had seen her husband 
on one occasion since she had been in jail, that 
she thought he might have been dead, but was 
resurrected, and said that her various sisters 
who had died had also been resurrected and 
were in the jail. 
My second examination was more particu- 
larly addressed to the ideas she had expressed 
about seeing her husband, and the like. PUNISHMENT 
233 
She claims to have seen her husband upon 
the occasion of a religious service on a certain 
Sunday about a month previous. She was asked 
whether she really believed that it was her hus- 
band whom she saw, to which she replied in the 
affirmative. She was then asked why, if she 
did believe it to be her husband, she did not call 
out and call attention to him, inasmuch as there 
was the man she had been accused of killing, 
and if she could make other people see him and 
really believe it was he, it would save her life 
and get her out of jail. She gave no adequate 
reason for not taking this course and practically 
replied to this question by saying that they 
were not supposed to make any noise or talk 
during service. Further questioning, how- 
ever, showed a very definite feeling of uncer- 
tainty on her part as to whether she really had 
seen her living husband in the flesh at this 
time. 
It became at once necessary to evaluate these 
statements of the prisoner’s to find whether 
they must be taken as the truth or whether there 
was a definite attempt at malingering. The 
following are the reasons why I believe her 
statements to be absolutely genuine: This 
prisoner from the very first of my examination 
to the conclusion made every possible effort to 
comply with all of my instructions and tried 234 
INSANITY AND THE CRIMINAL LAW 
as hard as she knew how, without any question, 
to measure up to the tests that were given. I 
do not think any one who was present at the 
examination could possibly have any doubt 
upon this point. If the symptom that we are 
discussing, namely, having seen her husband, 
is not genuine, then it is the only feature in 
her entire examination upon which doubt must 
be cast. It is significant that during two hours 
of most detailed examination of the prisoner 
on the first occasion she never offered to say a 
word about ever having had such an experience, 
although I asked her specifically whether she 
heard voices or had heard her husband talking 
to her since she had been in the jail. Had the 
prisoner been a malingerer here was an ad- 
mirable opportunity for inserting a reference to 
this vision. She did not do so. During the first 
examination also, in talking about her crime, 
she never once intimated that her husband was 
not dead. 
Q. What are you here for? A. Murder. 
Q. Have you been tried. A. I have once. 
Q. What was the verdict? A. Guilty. 
Q. Of what? A. Of the crime of murder. 
Q. Whom are you accused of murdering? 
A. My husband. 
Q. What did you do it for? A. Promises— 
deceiving. PUNISHMENT 
235 
Q. You deceived him, didn’t you? A. Not 
until he deceived me. 
Here she acknowledges being convicted of 
the murder of her husband, and, though here 
is another splendid opportunity, she does not 
avail herself of it. Further, I conducted the 
entire first examination without ever telling this 
prisoner who I was, without her ever express- 
ing any desire to know who I was, and so far 
as I know she had no information as to what I 
was there for, nor did she express any desire 
to know. At the second examination I asked 
her who I was, what my name was, etc., and 
she expressed herself as not knowing. Had she 
been a malingerer she would surely have taken 
pains to find out whether I represented the 
people that she might have supposed to be her 
friends or her enemies. She did not do this, 
but simply and without any effort at subterfuge, 
submitted to the examination. So much for the 
outward evidences; now for the inner. 
The patient has all the elements of super- 
stition which makes possible such a belief as 
she has set forth of having seen her husband 
and believing him to be resurrected. This is 
shown by her discussion of the differences be- 
tween soul and spirit, and also by her dis- 
cussion of night doctors. 
Q. What is your idea of a spirit and a soul? 236 
INSANITY AND THE CRIMINAL LAW 
A. I think there’s a difference between a 
soul and a spirit, because a spirit can come in 
many forms and many a shape, but a soul is the 
same as one of us. It is one natural thing all 
the time. 
Q. Well, what do you think this was, a spirit 
or a soul? 
A. It could have been a spirit. 
Q. Does a spirit mean that it is the spirit 
of a dead person? 
A. Well, no; I don’t think that a spirit ever 
dies. 
Q. Must the body be dead in order to have 
this spirit appear? 
A. Well I think that the spirit can appear 
even when the body is alive. 
Q. Where did you get all these ideas? 
A. I don’t know; they just come to me. I 
sometimes think about them, and study them 
out. That’s my belief about it. The spirit’s 
on earth all the time or it’s in the air. 
Q. Do you believe in hoodoos? A. No, sir; 
I don’t. 
Q. Why not? A. Because if I had belief 
in such as that perhaps I would not have been 
here. 
Q. Why so? A. Well, because my life could 
have been happy. 
Q. How could your life have been happy if PUNISHMENT 
237 
you had believed in hoodoos? A. Perhaps 
some one could have fixed my life so I couldn’t 
have such a heavy worry. They could have 
given me luck. 
Q. Do you believe anybody can do that? 
A. I don’t know whether they can or no. 
Q. Do you believe in night doctors? A. 
Well, not specially. 
Q. Why not? A. I don’t because I think 
doctors have enough bodies to practice on. 
Years back there may have been night doctors. 
People didn’t die so much; there wasn’t so 
much diseases. I think doctors have enough 
practice without taking lives. 
Q. So you don’t think they do it? A. I 
don’t know. They may have to do it to have 
some one to practice on if they didn’t have 
enough practice. People live such a “raptus” 
life that the doctors have more than they can 
practice on now. The hospitals and places are 
filled up with them. 
Her attitude, before mentioned, of some un- 
certainty as to whether her husband was a real 
human being in the flesh attracted my attention, 
and I went into the matter somewhat further. 
Her description of her vision has certain 
characteristics about it that remind one of a 
dream: 
Q. Tell me about that idea that you ex- 238 
INSANITY AND THE CRIMINAL LAW 
pressed to me that you had seen your husband 
here in the jail. 
A. Well, I saw him as I told you from the 
’ception hall where we go to church at, across 
over here in the window. 
Q. Was he in the building? 
A. Yes, sir. 
Q. When was this? 
A. About a month ago. I think it was about 
a month ago yesterday past. 
Q. Have you seen him more than once ? 
A. That’s all I know of. 
Q. Did you ever have any other reasons to 
suppose he was here? 
A. Yes, I have often felt that he was here. 
Q. What made you think so? 
A. Well, I don’t know; it seems to reason 
in my mind that way. 
Q. When you did see him, how did you know 
that it was your husband? 
A. Well, he looked the same as he always 
looked. From the throat I could see a stream 
of blood, or something like that. He was all 
white, but that was the onliest thing that I 
could see what was wrong. It looked like him, 
otherwise it was natural as ’fore. 
Q. What did the stream of blood from the 
throat mean to you? 
A. That I don’t exactly know. PUNISHMENT 
239 
Q. Didn’t you shoot him in the throat? 
A. That’s what the coroner said. 
Q. Don’t you know? 
A. No, sir. 
Q. Didn’t you see the wound? 
A. No, I didn’t see the wound at all. 
Q. What clothes did he have on when you 
saw him here? 
A. He appeared to have a uniform on with 
a white coat. When I first looked at him he was 
dressed the same as you were dressed and the 
second time I looked at him he appeared to 
have a white coat on—kind of shadow like— 
shadow on it. 
Q. WTiat do you mean by shadow like was 
on it? 
A. Shadow of some one else. He was be- 
tween the shades. I taken them to be priests. 
Q. Catholic priests? 
A. Yes, sir. 
Q. Are you a Catholic? 
A. No, sir. I am a Methodist. 
Q. Was your husband a Catholic? 
A. No, sir. He was a Baptist. 
Q. WTiat was he doing there? 
A. That I don’t know. 
Q. Did you try to attract his attention? 
A. No, I did not. 
Q. WTiy not? 240 
INSANITY AND THE CRIMINAL LAW 
A. Well, we were having services and we 
are not allowed to do anything like that. 
Q. Did he try to attract your attention? 
A. No, sir. 
Q. Did he see you? 
A. He did. 
Q. Did he recognize you? 
A. I don’t know whether he did or not. 
Q. Do you think he is really alive now? 
A. Why, yes, sir; I do. I don’t know why 
I think so, but I certainly do. 
Q. Well, do you think that you killed him? 
A. Why, I know that I shot him, but whether 
I killed him I don’t know that. 
Q. Well, everybody says you did. 
A. Well, that may be so, too. 
Q. How do you account for the fact that 
everybody says that you killed him, that you 
were tried and convicted of killing him, that 
the coroner and all the doctors, the judge and 
the jury and all the lawyers and every one say 
that he is dead? How do you account for the 
fact that every one says that he is dead and 
yet he is alive so that he can be here in the jail? 
A. That I couldn’t tell you to save my life. 
I have that reasoning in my mind, that I don’t 
believe that he is dead. 
The characteristics that remind one of a 
dream are that she first saw her husband PUNISHMENT 
241 
dressed in an ordinary suit of clothes and then 
suddenly he appeared to have a white coat on. 
This kind of transformation is very character- 
istic of dreams and dream-like hallucinations. 
I therefore went into this matter more fully 
and found that after she had come back from 
services on the Sunday in question she went to 
her cell and lay down. She says that she was 
very sleepy in those days, as she is now, and 
she does not remember, and cannot be made to 
remember, whether she had her lunch that day 
after chapel or not. The whole experience, 
therefore, indicates either that she had a dream- 
like hallucination at the time or that she may 
have dreamt about her husband while in jail. I 
have no doubt that these dreams are perfectly 
genuine because they have the features of 
dream formation and are of a simple character 
in accordance with the mentality of the patient, 
and are rather superficial in general, and easy 
to understand. For example, she makes the 
statement that she never dreams she is with 
her husband in prison. This is a plain wish- 
fulfilling mechanism of a perfectly simple and 
characteristic kind. She always dreams of 
being home with him where she wishes to be. 
So that aside from the external reasons for 
considering her account of her hallucinations 
genuine, the internal reasons also support this 242 
INSANITY AND THE CRIMINAL LAW 
view, namely, that she is a simple-minded, 
superstitions darkey, that her description of the 
vision tallies with the known characteristics of 
such visions, and that she has had numerous 
dreams of the same general character. 
There remains to explain the situation. The 
prisoner is under sentence of death for murder- 
ing her husband. She has got into a difficulty 
which does not permit her to make an efficient 
adjustment. She is unable to square herself 
with reality. The realities are too appalling to 
be accepted. There arises then an unconscious 
effort on the part of the individual to so ar- 
range her world that she can live in it. She 
cannot live in the world of facts when those 
facts include her execution in a few days. She 
therefore has to build up certain defense reac- 
tions, certain contradictions of fact, certain 
delusions, supported by hallucinations, and 
other things, to wit, her constant sleepiness, to 
enable her to get along. The one great single 
thing that confronts her is the crime which she 
has committed and for which she is to be 
hanged. If her husband were not dead, then 
everything would be all right. The suggestion 
that he is not dead comes to her, I am not sure 
just exactly how, either in a dream or trance- 
like state, and she accepts it. "Why should she 
lay aside this vision, why should she measure it PUNISHMENT 
243 
up against reality and discard it, when by dis- 
carding it she is breaking down all her defenses, 
she is throwing away everything that enables 
her to live? As a matter of fact she grabs 
it with a desperation that a drowning man grabs 
at a straw, and if she deceives any one she de- 
ceives herself into believing that it is true. 
And as the days go by this truth character- 
istically becomes more and more elaborated. 
For example, the vision, as she tells it to me, 
is much more complex than it was as she orig- 
inally told it. It has several added elements, 
and under a continuation of the conditions that 
surround her it would very probably continue 
to become more complex. 
We have here, then, a typical beginning 
prison psychosis, a psychosis that has origi- 
nated as a result of her arrest, her imprison- 
ment, and her conviction, and which is de- 
pendent upon these factors—a psychosis which 
is in every sense a defense psychosis and which 
has come into existence as a mode of reaction 
to the difficulties in which she finds herself and 
as an expression of her way of building up de- 
fenses to those difficulties. 
The theory that we have here the early stages 
of a prison psychosis, is supported by the his- 
torical features of the case: the hysteriform 
attacks, convulsive-like, with anesthesia which 244 
INSANITY AND THE CRIMINAL LAW 
occurred just preceding or during her trial, and 
the attacks of irritability and violence which 
she has had while in the jail. These all belong 
in the picture, because it is a certain kind of 
individual that develops this kind of reaction. 
It is the individual who is poorly organized men- 
tally, whose mentality is poorly synthesised, 
the elements of whose personality are not well 
balanced and harmonized, who acts in this sort 
of way. 
The lack of synthesis in this prisoner’s per- 
sonality is well shown by the fact that on the 
first examination she, to all intents and pur- 
poses, acknowledged having killed her husband, 
while on the second examination she said that 
she believed him to be alive, having been resur- 
rected from the dead. We have, in other words, 
two streams of thought diametrically opposed 
to each other, existing side by side, and not 
interfering with each other—a very charac- 
teristic phenomenon of the poorly knit per- 
sonality. 
Such a case as this raises a number of ques- 
tions of medico-legal importance. There is no 
doubt in my mind but that we have here a be- 
ginning psychosis and that in all probability if 
the sentence of hanging were carried out the 
mental symptoms would become progressively 
aggravated as time went on. It is quite certain, PUNISHMENT 
245 
also, that if this patient were relieved from the 
stress under which she is suffering, if, for ex- 
ample, she were pardoned and set free, that 
the mental symptoms would melt away almost 
immediately. Should a person in this state of 
mind be executed? 
Leaving aside entirely, as not being germane 
to the subject, a discussion of whether capital 
punishment is right or wrong, accepting it as 
the present law, this question presents at least 
two aspects. In the first place, there is a 
general feeling of abhorrence against executing 
a person who is insane. Of course it must be 
understood that the word insane has no definite 
meaning, and in connection with a feeling of 
this sort it can only be presumed that it is 
applied to a person who is mentally diseased 
and who is not in an understanding state of 
mind towards the situation. The feeling is 
built up of two components. One is the abhor- 
rence against executing a sentence of death 
upon a person who is really sick and the other 
the feeling that execution is a punishment, and 
that in order to have its dual effect both upon 
the individual executed and upon the public gen- 
erally, it should only be carried out when the 
criminal is in the possession of his senses and 
has a full realization of what is intended. 
On the other hand it may be argued that a 246 
INSANITY AND THE CRIMINAL LAW 
psychosis such as this colored woman suffered 
from is the natural consequence of her act and 
as such should not be given consideration. This 
is a well known principle in criminal law, for 
example, if a man engaged in housebreaking is 
surprised by the owner of the house and kills 
him, even though it be in self-defense, he is 
guilty of murder in the first degree, because he 
has caused the death of a human being while 
committing a felony, and although the homi- 
cide was not originally contemplated, it was the 
natural outgrowth of the act which he was 
engaged in, which act was illegal, and therefore 
the criminal is not entitled to consideration be- 
cause of the element of self-defense. So in the 
case of this colored woman. Her psychosis is 
the natural consequence of her act, a remote 
consequence, perhaps, but nevertheless a con- 
sequence. And then further it will be seen that 
there are other reasons why the psychosis 
should not be considered in the carrying out of 
the sentence. A psychosis such as this, as I 
have already said, is a defense psychosis and 
enables the individual to get along in the face 
of intolerable conditions by building up a delu- 
sional system which asserts that such conditions 
do not exist. Should, therefore, the individual 
be given special consideration because she is 
so mentally constituted that she is enabled to PUNISHMENT 
247 
elaborate a mental state that is of material 
assistance to her in getting through the days 
and enables her to live with less suffering than 
otherwise ? 
And finally—and here we arrive at the crux 
of the whole problem—does not the psychosis 
from which this patient suffers throw some 
light upon her mental state when she committed 
the homicide ? I have all along pointed out that 
such a psychosis as this occurs only in a type of 
personality that easily disintegrates and falls 
to pieces under stress. Is it not because of this 
capacity for easy disintegration that she lacked 
the qualities that enabled her to deal with her 
difficulties efficiently and made recourse to 
homicide a possibility growing out of this weak- 
ness? Here, then, we have the true psycho- 
logical viewpoint of the case as regards the 
question of responsibility. The very type of 
character from which the prisoner suffers and 
which made such a psychosis as here outlined 
possible is also the type of personality which 
made recourse to homicide necessary, and there- 
fore the two things must be considered together 
in deciding upon the course that society should 
pursue with reference to her. It would at least 
seem that to execute her is to mete out death 
because of a certain defect for which surely she 
was not to blame. And in the face of the gener- 248 
INSANITY AND THE CRIMINAL LAW 
ally well accepted fact that punishment has 
only a minimum effect in preventing crime, the 
question may well be asked whether society has 
any right to pursue such a course. 
The psychology of condemned criminals will 
be a very interesting chapter to be written 
—the way in which they react when all hope 
is past, after all of the resources of the law 
have been appealed to and failed. I have not 
as yet had sufficient experience to dogmatize, 
but from the reading of newspaper accounts 
and such other information as I have, I doubt 
very much if any one ever goes to executions in 
what might be termed a normal state of mind. 
The religious conversions of some of the most 
hardened reprobates, their resort to continu- 
ous prayers, and their thorough and complete 
conviction, which occurs towards the end, that 
their soul is saved and their sins forgiven, is 
fully as great a departure from the character- 
istics of their every day life as the hallucinatory 
dream-like delusional state was from the every 
day life of the woman just discribed. It might 
also just as properly be considered a psychosis, 
but just because in its content it fits more 
closely the recognized standards of the average 
human being it is not so considered. Yet every 
psychiatrist knows that the real standard that 
must be taken is the standard of the individual PUNISHMENT 
249 
in question. From this point of view such a re- 
action might properly be considered as a 
psychosis and if so, surely a defense psychosis 
in the same sense as just set forth with regard 
to the case described. 
In concluding I desire to call more emphatic 
attention to certain points that have been only 
touched upon. In the first place I would call 
particular attention to the fact that here a 
pretty complete psychological analysis has 
been able to build up an explanation and under- 
standing of the prisoner, not only in her present 
condition, but with reference to the crime, and 
that it has been possible to evaluate all of her 
various statements without recourse to any- 
thing outside of herself. In other words the 
whole picture has been constructed from in- 
ternal evidence alone, a fact which psychiatrists 
fully appreciate as perfectly possible, but 
which our legal brothers appear never even to 
suspect can be done. Witness the constant and 
repeated questions on cross examination with 
reference to alleged delusional states; constant 
attempts to prove that delusions correspond to 
facts, with the implied assumption that if they 
are found to so correspond, then they are not 
delusions—a wholly inaccurate method of 
attack upon the problem, but one which, of 
course, can be easily understood when we take 250 
INSANITY AND THE CRIMINAL LAW 
into consideration onr present methods of legal 
procedure. 
As an example of the internal evidence, 
take the statements that the delusional forma- 
tions were dream-like in character and that 
the dreams as detailed by the patient were 
consistent with the general theory of the case 
as outlined. Such a statement as that might 
easily mean nothing to the average person and 
probably would mean very little to the lawyer 
or to the presiding judge, but when such a 
statement is based upon a knowledge of the 
present day voluminous literature and incisive 
psychological studies of dreams that have been 
making their appearance in the scientific world 
for the past few years, then immediately it is 
given a positive value—a value which it would 
be of tremendous difficulty to demonstrate in 
court; it would indeed be practically impossible, 
unless the expert witness were much more than 
a scientific man and had an unusual capacity 
for putting abstruse scientific matters into 
easily understood words. Even then it would 
probably be impossible in the limited time 
which would be devoted to his testimony. In 
fact, it is hard to conceive how a condition could 
arise under present methods whereby such a 
statement could amount to anything more than 
a statement that would or would not receive PUNISHMENT 
251 
credence in accordance with general principles 
—the apparent credibility and learning of the 
witness. It is certainly open to question 
whether the ends of justice can best be served 
by methods that are so accidental as the ability 
to present a scientific view in a convincing and 
simple manner to a lay jury, and to be free from 
the embarrassment of the physician on the wit- 
ness stand that the expert is very likely to 
suffer, especially if badgered by a persistent 
cross-examination. 
After a wide experience I am almost con- 
vinced of the practical impossibility of pre- 
senting, at least with any degree of satisfaction 
to myself, a scientific position from the witness 
stand. 
The final outcome of this case is interesting. 
As a result of my report the prisoner’s sentence 
was commuted to fife imprisonment and she 
died about six months later of her pulmonary 
tuberculosis. Surely a much better solution of 
all the problems involved than hanging! CHAPTER XIX 
CONCLUDING COMMENTS 
The examination of the relations of psychi- 
atry and the criminal law led far afield into a 
discussion of the functions of criminal law, the 
nature of law itself, certain social considera- 
tions, the nature of crime, the concept criminal, 
and into an examination of certain fundamental 
psychological motives. All this was necessary 
in order to adequately understand the problems 
involved and in order to come to a sufficient 
understanding of them to suggest remedies. 
The whole discussion has been made as brief as 
was consistent with a sufficiently adequate and 
understandable presentation of the argument. 
In reviewing the presentation up to this point a 
few subjects suggest themselves for discussion 
which are somewhat aside from the main argu- 
ment and therefore are perhaps better left for 
brief comment in the concluding chapter. 
The study of human behavior is a compara- 
tively new branch of biological science to which 
psychiatry has contributed more than any other 
department of learning as it sees the human 
252 CONCLUDING COMMENTS 
253 
machine more clearly because tom down by 
disease and it is because this new study has 
uncovered the fundamental motives that 
prompt to action that we are beginning to see, 
for the first time, the real meanings of human 
activities and can understand the various subli- 
mations and distortions of the fundamental in- 
stinctive tendencies. 
In Chapter XI specific recommendations have 
been made for enactment into law which it is 
believed will go far to remedy existing evils. 
That law was commented on sufficiently to ex- 
plain its intentions and wThat were the imme- 
diate objects of its enactment. 
The two most important features of the law 
are: First, the doing away with all. tests of 
insanity and leaving it to the jury for imme- 
diate determination whether the accused had 
“the particular state of mind that must accom- 
pany such act or omission in order to constitute 
the crime charged.’’ This enables society, 
through the intermediation of the jury, to come 
to a conclusion without resorting to subterfuge 
with its resulting distortions. It would not be 
necessary to try a whole case on the theory of 
insanity in order to put certain letters in evi- 
dence, nor would a jury be forced to bring in a 
verdict that they knew was not in accordance 
with the facts (insanity) in order to absolve a 254 
INSANITY AND THE CRIMINAL LAW 
defendant from guilt for an act with which, 
while technically rendering him guilty, because 
of all the circumstances of the case they found 
themselves quite in sympathy. 
Secondly, the proposed law permits the ap- 
pointment of experts by the court and also per- 
mits the expert to prepare his report in writing 
and read it from the witness stand. 
In my experience it is rare that an expert is 
ever enabled to present his opinion in a way 
that is satisfactory to him. Even if his own 
attorney knows how to question him, which he 
frequently does not, the opposing counsel inter- 
rupt and object with such frequency as to de- 
stroy all effect of continuity. This method is, 
of course, deliberately pursued to destroy the 
value of the evidence, and is a fair example of 
the way the expert is usually treated. The ex- 
pert is not only treated as a partisan, which is 
quite warrantable with the present procedure 
(Chapter VI) but he is distinctly not treated as 
though he were a person who could help the 
court and jury come to a just decision. The 
theory of the expert was that he could do just 
this thing but his partisan placement has de- 
stroyed his ability to do so.1 
The law proposed would not only enable the 
expert to really present his opinion, for it would 
aAnd be it noted his partisan placement is not of his doing. CONCLUDING COMMENTS 
255 
be carefully prepared in writing, but would 
create a body of experts who were not partisan 
(those appointed by the court) and lead to the 
open recognition of the partisan character of 
the others (those employed by each side). Both 
of these changes would be decided steps in ad- 
vance—the former obviously so, the latter no 
less so though less obviously. As already set 
forth experts are necessarily partisan, though I 
think for the most part they do not recognize 
that fact themselves and so are open to all of 
the errors which blindness to the facts makes 
possible. The much safer expert is he who 
recognizing his partisanship can safeguard him- 
self from being unduly swayed by it. 
The creation of the non-partisan expert would 
tend to restore the expert to that position of 
dignity which must be his if he is really to 
function as an advisor and assistant to the court 
and jury in helping them reach the best pos- 
sible conclusion in the form of a verdict. 
Courts are bitterly in need of the help that 
psychiatrists can give them but they cannot get 
that help when they persist in treating the 
psychiatrist who offers it like a pickpocket. 
The change in the system which it is sought to 
effect by the proposed law has for one of its 
purposes the placement of the psychiatrist in 
such a position of dignity as will make it pos- 256 
INSANITY AND THE CRIMINAL LAW 
sible for Mm to help the court and jury and for 
the court and jury to accept that help. The 
present practice has drifted to such a point that 
almost anybody can qualify as an expert and 
give his opinion. I have known a physician to 
qualify as an expert on mental diseases who, in 
a practice of many years, admittedly had had 
only about a half dozen “insane” patients and 
did not profess to specialize in mental medicine. 
Yet the judge ruled that the jury had heard his 
qualifications and could take his evidence for 
what they thought it was worth. Rules of evi- 
dence have been developed to their present 
stage of complexity to control the sort of evi- 
dence which was presented to the jury in order 
to keep out, as far as possible, statements that 
were immaterial and yet in this most important 
particular all the bars are let down and almost 
any one can avail themselves of the special 
privileges of expert testimony and give their 
opinion. 
This state of affairs reduces the situation to 
that degree of ineffectualness that makes the 
time ripe for the application of a remedy. 
Some sort of qualifications should be insisted 
upon before qualifying a witness as an expert. 
If he is a physician he at least should have 
specialized in the field of medicine in which he 
is going to testify. Some European universities CONCLUDING COMMENTS 
257 
have special courses for physicians who are to 
take up the specialty of legal medicine and they 
are the ones qualified as experts when experts 
are needed. In this country we at least should 
make a start in this direction and I think the 
passage of the law suggested would serve to do 
so. The Court naturally would, for the most 
part, appoint well qualified men, which would 
mean that if the two sides chose to call ex- 
perts in addition they would be obliged to 
make the effort at least to match the court’s 
experts in quality. A change in this direc- 
tion would help to restore the dignity of the 
expert. 
In a previous chapter (Chapter VII) I have 
criticized the hypothetical question as the 
crowning monstrosity to which present meth- 
ods of procedure have lead. The law in question 
serving to dignify the expert; to place him much 
more fully than at present in possession of the 
facts by requiring that the written report of 
the expert may be required by the opposing 
counsel before it is read; and by permitting the 
expert to give his testimony in a connected 
discourse by reading his written report from 
the witness stand, I think would help, at least, 
to do away with the use of the hypothetical 
question because it would do away with its use- 
fulness to counsel. 258 
INSANITY AND THE CRIMINAL LAW 
At the present time the hypothetical question 
is used on the theory that the jury and the jury 
only can decide upon the question of responsi- 
bility or soundness or unsoundness of mind of 
the defendant and that the witness, having no 
such right, must confine his opinions to a hypo- 
thetical individual, who may, for purposes of 
relating such opinions to the issue on trial be 
clothed with the symptoms testified to as those 
of the defendant. I have already criticized this 
method of procedure. I may add further, at 
this point, that it would seem to me that such a 
complex, roundabout way of going at the matter 
must be what is known in psychiatry as a 
distortion which has grown out of the strain- 
ing after impartiality in a situation where it 
could not exist and where therefore it was 
desirable to be blind to the true state of 
affairs. 
The hypothetical question is used, in the first 
place, to get a clear-cut answer from the expert 
to the effect that the hypothetical person, that 
is, in reality, the defendant, is or is not of sound 
mind. It is then made the basis of a series of 
bickerings, quarrelings, and hair-splitting argu- 
ments which serve to befog the minds of the 
jury and to discredit the expert and destroy the 
value of his testimony. 
The law in question, because it would enable CONCLUDING COMMENTS 
259 
the expert to testify so much more easily from 
fact and observation, and because he would he 
dignified by reasonable qualifications and often 
by court appointment would reduce the amount 
of this sort of performance. The whole empha- 
sis of the present situation is to discredit the 
expert, to get him confused, to make him con- 
tradict himself, and so make him ridiculous and 
destroy the force of his testimony. There is, as 
a rule, not a vestige left of any attempt to make 
the expert’s knowledge available in the solution 
of the problem before the court. The whole 
performance has become a battle of wits and it 
is thumbs down for the fellow who stumbles and 
yet the expert who is the center of this dis- 
graceful exhibition is often a man of profound 
knowledge, perhaps of international reputation, 
not infrequently of far superior intelligence 
to the attorney who examines him and may 
be the most notable figure in the court room. 
And yet the contribution that such a man could 
make to the case is sacrificed by this method of 
procedure which renders it impossible to make 
his great knowledge available for the purposes 
of the issue on trial. Lawyers go to any length 
in this process of discrediting the witness. 
They will study up some obscure and recondite 
field of learning and cross-examine the expert 
upon it. The expert probably cannot answer 260 
INSANITY AND THE CRIMINAL LAW 
some of the fool questions he is asked about 
medieval philosophy, comparative philology, or 
the theory of relativity, and thus is put at a 
disadvantage and on the defensive in the battle 
of wits, and for the most part such methods are 
permitted by the court. For example, I have 
been asked, Can a thing both be and not be at 
the same time? What possible help could my 
answer to such a question be to the jury in de- 
ciding the questions before them? Its only pos- 
sible object was to confound and so help to 
discredit me. I have even had a lawyer openly 
attempt to deceive me by reading from a book 
under a certain alleged descriptive caption 
where as a matter of fact the matter occurred 
under another caption, and then asking me if I 
agreed with the author. 
I not only am convinced that the courts need 
the services of the expert but I feel sure, from 
my experience, that they would gladly utilize 
those services if the very procedure which is 
supposed to make his experience available did 
not in practice produce exactly the opposite 
result. In a capital case in which I testified for 
the district attorney the defendant was a defec- 
tive with psychotic symptoms. He was badly 
frightened at the situation in which he found 
himself and attempted in a stupid, blundering 
way to deceive me when I examined him. I CONCLUDING COMMENTS 
261 
heard most of the evidence,2 and was enabled to 
present, in a connected story, without interrup- 
tion, lasting about three quarters of an hour, a 
full description of the personality make-up of 
the defendant, the way in which the crime grew 
out of and related itself to this make-up, and an 
explanation of his subsequent conduct. The 
District Attorney had agreed to abide by my 
decision and the attorneys for the defense were 
so well satisfied with my presentation that they 
let me go on. I showed the defendant to be 
a defective who had developed a psychosis. The 
defense asked me what I would do with such a 
person, where he should be sent? I was able 
then to take up the whole question of the de- 
fendant’s danger to the community, the various 
types of institutions that were available and 
concluded that, in my opinion, it would not ade- 
quately protect the community to send him to a 
hospital for the insane from which he might be 
released at an early date by habeas corpus, but 
that he should be given a prison sentence. Then 
when he got to prison his condition would 
shortly be recognized and he could be sent to a 
1 The hearing of the evidence is, I am convinced, of great 
value to the expert in helping him formulate his opinion. If a 
special class of medical experts were ever provided for it 
would be well to consider whether they should not be required 
to stay in court throughout the trial. Perhaps some day the 
expert may sit upon the bench with the judge as he does now 
sometimes in the juvenile court. 262 
INSANITY AND THE CRIMINAL LAW 
State Hospital for treatment while still serving 
his sentence. In this way the interests of a de- 
fective would be taken care of as best they could 
be under all the circumstances of the case and 
the public would be adequately protected, at 
least during the period of the sentence, and 
perhaps for the lifetime of the defendant if his 
psychosis proved a chronic one. The jury and 
the court acted in exact accord with my recom- 
mendations ; the jury brought in a verdict of a 
lesser than first degree murder, and the court 
sentenced the boy to prison where in the course 
of a short time his true condition became mani- 
fest and he was sent to a State Hospital. In 
this case the District Attorney was satisfied, in 
part at least, for he got a conviction; the de- 
fense was satisfied to escape a first degree ver- 
dict in a case in which the actual evidence of 
homicide was conclusive; the court and jury I 
hope felt that I had been of assistance; and the 
family of the boy were not only satisfied but 
deeply grateful. In addition a defective boy 
who had been stressed beyond his capacity and 
had killed a wretched old hag was justly dealt 
with and the public was adequately protected. 
The principal points I wish to make are that the 
expert—myself—was listened to with respect 
and was therefore able to contribute to the solu- 
tion of the problems involved; that the jury— CONCLUDING COMMENTS 
263 
society—was perfectly open to the decent, hu- 
manitarian, and most effective solution and 
acted accordingly; and finally, that the laws 
which have been suggested, and for the rea- 
sons I have already given, will conduce to 
making possible such results much more fre- 
quently. 
For such results as the above, under the pres- 
ent system, one of the most necessary factors is 
a District Attorney who is something more than 
a prosecuting officer. My experience with Dis- 
trict Attorneys has been peculiarly happy. I 
have frequently had them take my opinion and 
have a prisoner committed as “ insane” instead 
of sending him to trial. In one case in which I 
was asked to examine a defendant during the 
course of his trial I came back to the District 
Attorney with my conclusion that he was “ in- 
sane. ’ ’ The District Attorney immediately put 
me on the stand, asked me a few questions, then 
informed the court of my conclusion and handed 
me over to the defense. Such experiences are 
only too few, the facts rather tend to the belief 
in the necessity of a Public Defender. 
The limitations of practice with existing laws 
and rules of procedure are soon reached.. There 
have been sporadic attempts here and there to 
“get together’’ and decide upon a program that 
would produce better results than those ordi- 264 
INSANITY AND THE CRIMINAL LAW 
narily reached. Such attempts fizzle out after 
a while because they depend for their energy 
upon the interest of some individual. It is de- 
sirable that a new principle be injected into the 
law which will go on living after individuals 
shall have passed away and go on growing, 
building up its traditions and rules of procedure 
and working changes for the better. Then 
finally when this new law will have been 
squeezed dry of its possibilities, just as the 
existing law of to-day has been, the next step 
forward will have to be negotiated with the 
help of a new formulation. 
The suggestions put forward in this book, it 
is believed, are practical in the sense that they 
can be effected and that they will work. It is 
also believed that they go as far as it is safe to 
attempt in the effort to correct existing abuses. 
I have explained the suggested law (Chapter 
XI), as to what its enactment would serve to 
immediately effect. I have further set forth in 
this chapter what I believe would be the indi- 
rect and more remote results that would flow 
from its enactment. If all these things could be 
accomplished then, surely, all that could be rea- 
sonably expected of any law in the way of 
improvement would have come to pass, and the 
time would be again ripe for reviewing the 
whole situation as it then existed and mapping CONCLUDING COMMENTS 
265 
out the nature and the direction of the next 
change and studying how to bring it about. 
The contribution which psychiatry can make 
to the criminal law and criminal procedure is 
the emphasis which it places upon turning the 
vision within to search for the motives that will 
explain what is seen to be happening. For a 
long period, for ages, the criminal was the man 
who did a certain proscribed act. That was as 
far as the vision of authority reached. Now it 
is realized that in order to commit a crime a 
certain particular state of mind is necessary— 
the vision has been turned within, there to 
search, for the first time, the great unknown 
field of the personality. Now psychiatry em- 
phasizes the need of broadening out the field in 
which this search is being made to cover the 
whole field of antisocial conduct, so that it can 
be understood and it advocates still further the 
application of this same method to the law itself 
and to those engaged in its administration in 
order to understand just what is really being 
attempted and not resting satisfied with out- 
ward appearances. The turning of the vision 
within, the analysis of motives, is what has been 
attempted in this book, with what success it is 
for the reader to determine. 266 
INSANITY AND THE CRIMINAL LAW 
ADDENDUM—A CRITICISM 
In the course of the preparation of this book 
I asked Prof. Edwin R. Keedy, of the Law 
School of the University of Pennsylvania, to 
read the manuscript and to give me his critical 
opinion of the various propositions therein set 
forth. He very kindly did this, and did it so 
thoroughly that it has occurred to me that it 
would add to the value of the book if I added 
his criticisms at the close of my discussions. 
I have reached this conclusion notwithstanding 
that the criticisms are in many respects adverse 
to the conclusions I have reached because I think 
them highly valuable for many reasons. In the 
first place they give a pretty good idea of the 
reaction of the legally trained mind to the 
proposition of the scientist who is apt to be 
impatient of the formalities of the law. Sec- 
ondly they give some idea of the distance be- 
tween laws and legislation on the one hand and 
science on the other which must be spanned 
by any scheme that attempts to harmonize their 
different points of view. And thirdly, by help- 
ing to make the issues clear and well defined 
they assist in the comprehension of the prob- 
lem as a whole—the actual situation; the lines 
of desirable development, and the obstacles 
such development must overcome. Professor 
Keedy writes: CONCLUDING COMMENTS 
267 
“I read the manuscript of your book with 
much care and interest. I am pleased that you 
have seen fit to set forth with your approval the 
proposals of our committee. This will assist 
in bringing them to the attention of the medical 
profession and the general reading public. 
‘ ‘ In reading the manuscript I always bore in 
mind your request that I give you my ‘critical 
opinion ’ of it. As I considered your funda- 
mental propositions I was sorry to find myself 
in disagreement with some of them. In the 
first place I am unable to agree with your view 
as to the nature of law as set forth on pages 
192 et seq. I realize that you have the support 
of Mr. James C. Carter. His theory, however, 
represents but one side of a controversy and is 
not generally accepted. Mr. Carter was op- 
posed to the codification of the law of New 
York as advocated by David Dudley Field, in 
which opposition Mr. Carter was unsuccessful. 
I do not think it will be possible to find many 
lawyers in accord with the proposition that a 
statute is not law. 
“I am unable to agree with your theory of 
responsibility as set forth in Chapter VIII. 
In an article published in 1910 I stated the fol- 
lowing: ‘Responsibility means accountability 
for one’s actions to some superior power, which 
in this case is the criminal law. The tests of 268 
INSANITY AND THE CRIMINAL LAW 
criminal responsibility are the rules which de- 
termine the guilt (upon which punishment is 
based) of those who cause certain injuries, 
carefully defined by the law, to individuals or 
society in general. According as the law of 
one sovereignty differs from another, so re- 
sponsibility varies; hence criminal responsi- 
bility means one thing in England, another in 
Germany, and it means a different thing in 
Illinois from what it means in New York.’ (1 
Journal Crim. Law and Criminol. 394.) A 
similar statement appears in the report of our 
committee for 1911 (2 Journal 523). It is 
further pointed out in this report that included 
in the definition of every crime is the require- 
ment of a particular state of mind on the part 
of the defendant and the question of responsi- 
bility in a given case is whether the defendant 
had this state of mind at the time of the com- 
mission of the alleged act. The fact that a jury 
has the power to acquit, notwithstanding the 
fact that the requirements of the law are met 
by the evidence, does not change the theory or 
test of responsibility. If they should convict 
in a case where the legal test of responsibility 
is not met, their verdict would be set aside. ’ ’ 
Professor Keedy here admirably and briefly 
sets forth the concept of responsibility as it is 
interpreted by the courts and as held by the CONCLUDING COMMENTS 
269 
average man. I have endeavored to go back of 
the obvious, beneath the surface, and see what 
responsibility meant in terms of tendency, that 
is, in terms of what the individual was trying 
to bring about. This is the method of psy- 
chology, and the conclusions of the two methods 
need not, by any means, be in fundamental dis- 
agreement. In fact, what is disclosed are but 
two aspects of the same thing. The legal atti- 
tude toward responsibility discloses only that 
which appears upon the surface. I have at- 
tempted to indicate what lies beneath in the 
same way as I uncovered the vengeance motive 
in discussing the history of the criminal law 
and practice. 
*11 am also not able to agree with your view, 
as set forth in Chapter VIII, that the law never 
recognizes partial responsibility. As I pointed 
out in an article in the Harvard Law Review, 
a reprint of which I am sending you, the doc- 
trine of partial responsibility is sometimes 
applied by the courts (pp. 552, 553).” 
This point is covered in Chapter VIII. 
I say this: While the doctrine of partial re- 
sponsibility is not specifically recognized by 
the law, it nevertheless finds its way into prac- 
tice. . . . Footnote 4 covers the point raised by 
Professor Keedy. 
“On page 102 you state that insanity is 270 
INSANITY AND THE CRIMINAL LAW 
‘purely a legal concept.’ I have on a number of 
occasions expressed a view contrary to this. In 
the report of our committee for 1911, just after 
the paragraph on criminal responsibility which 
I have already quoted, the following statement 
appears: 
“ ‘As criminal responsibility is a purely legal 
question, so insanity is a medical one which 
must be answered by the physician. He should 
decide whether an individual is suffering from 
a mental disorder and if so determine its char- 
acter and its symptoms, just as he is the only 
one who can properly diagnose a case of physi- 
cal ill-health. This being so, the physician’s 
idea of insanity should be accepted, and accord- 
ing to him the term “insanity” is vague and 
misleading. The popular idea is that insanity 
is a definite, clearly defined state with a sharp 
line of cleavage separating it from a state of 
sanity. To the physician, insanity means noth- 
ing but mental derangement, as general a term 
as physical unsoundness. Just as there is a 
gradual, almost imperceptible shading between 
physical health and sickness, so there is be- 
tween mental health and mental derangement. 
The physician differentiates between many 
kinds of mental diseases, each with its more or 
less characteristic symptoms. 
“ ‘The problem is to connect the physician’s CONCLUDING COMMENTS 
271 
diagnosis of the mental condition of a partic- 
ular individual with the legal tests of criminal 
responsibility.’ 2 Journal 523. 
“On page 151 and 168 you express the view 
that the jury should pass only on the question 
whether the defendant committed an anti-social 
act. A similar proposal was adversely criti- 
cized as follows in the 1911 report of our com- 
mittee : 
“ ‘It has often been urged that the jury is 
not qualified to pass upon the question of the 
defendant’s sanity, and that the function of the 
jury should be limited to finding that the act 
was committed, and that a commission of ex- 
perts should then determine the question of the 
defendant’s responsibility. 
“ ‘The first objection to this proposal is that 
it assumes that the present function of the jury 
is to decide simply whether the defendant is 
sane or insane. This, as explained above, is 
not the question for the jury, the proper ques- 
tion for them being whether the mental element 
required by law was present. This the jury 
has to decide in every criminal case. 
“ ‘The second objection to the proposal is as 
to its constitutionality. The constitution guar- 
antees the right of trial by jury. This guaran- 
tee means more than that twelve men shall sit 
together in the court room during a defendant’s 272 
INSANITY AND THE CRIMINAL LAW 
trial. It means that the defendant has a right 
to have the necessary elements of his guilt 
passed upon by the jury. According to the law, 
criminal intent is a necessary requisite of crime. 
Consequently the jury which decides whether 
the criminal act was committed must determine 
whether the criminal intent was present or 
absent. The proposal under discussion would 
also be invalid under the due-process-of-law 
clause of the constitution. In Oborn v. State, 
143 Wis. 249 (1910), the Supreme Court of Wis- 
consin held that the defendant has a constitu- 
tional right to have all the issues in his case, 
including any special issue of fact, particularly 
as to his sanity, tried before a common law jury. 
In Strasburg v. State, 110 Pac. Rep. 1020 
(1910), the Supreme Court of Washington held 
that a statute abolishing insanity as a defense 
to a charge of crime was unconstitutional, be- 
cause it took away from the jury the question 
of criminal intent, thereby violating the “due 
process of law” and the “trial by jury” 
clauses. 
“ ‘The third objection to the proposal is that 
it loses sight of the fact that criminal responsi- 
bility is a legal question. The commission of 
medical experts is competent to decide whether 
the defendant is sane or insane, but in what 
respect it is fitted to determine whether the CONCLUDING COMMENTS 
273 
defendant is guilty or not of murder or larceny, 
as the case may be ? 
“ ‘The fourth objection arises from the legal 
requirement that criminal responsibility de- 
pends upon the defendant’s state of mind at the 
time of the commission of the act, not at the 
time of the trial. If the commission would limit 
its inquiry to the present condition of the de- 
fendant, it would violate this requirement. If, 
on the other hand, it would decide as to the de- 
fendant’s condition at the time of the commis- 
sion of the act, it would be compelled to examine 
witnesses. As much of the evidence to prove 
the act is material in determining the intent, 
the commission would have to re-examine many 
of the witnesses who testified before the reg- 
ular jury. In the trial before the regular jury 
the witnesses were governed by the legal rules 
of evidence; in the inquiry by the commission 
they would not be, nor would the proceedings 
be under the control of the judge. The exami- 
nation of witnesses by the commission would 
be a complete usurpation of the functions of 
judge and jury.’ 2 Journal 528, 529.” 
I am perfectly aware of the strength of Pro- 
fessor Keedy’s criticisms as to the nature of 
criminal responsibility and the function of the 
jury. He has the law, and the practice all on his 
side. It is quite true that under existing con- 274 
INSANITY AND THE CRIMINAL LAW 
ditions the defendant has the right to have a 
jury pass upon his mental condition, because if 
they find he was of unsound mind at the time of 
the alleged crime then he was, by that same 
token, not guilty. 
I have freely expressed my opinion in the 
preceding pages irrespective of whether my 
opinion coincided with the law or was in accord 
or not with judicial decisions or the constitu- 
tion. I have been trying to set forth, as I see it, 
the nature of criminal conduct and the best way 
in which those who indulge in such conduct can 
be treated by the State for the good of all con- 
cerned, but primarily for the good of and the 
protection of the State. Such a setting forth 
of views, however, is a very different thing from 
the advocacy of a definite program. This latter 
involves primarily practical considerations. 
The question is, What can actually be done un- 
der existing limitations of law, of decisions, 
etc. I It was as a result of such a practical con- 
sideration of the problems that the laws set 
forth in Chapter XI were formulated. To these 
laws, as so formulated, I gave my unqualified 
endorsement because I believed that they repre- 
sented a distinct advance and one that could be 
made effective. Every step forward makes 
possible the next step, and each step involves 
somewhat a revaluation of the concepts in- CONCLUDING COMMENTS 
275 
volved. The discussion I have set forth in- 
volves some very considerable revaluation of 
the concepts in use—the specific suggestions 
involved in the suggested statutes involve very 
slight modifications but I believe modifications 
along the same lines as will ultimately lead to 
the conclusions I have set forth. Naturally, 
therefore, being practically minded, I am 
heartily in favor of them. 
“I am sorry to say your suggestion on page 
168 that there should be no attempt to deter- 
mine responsibility at the trial is opposed to the 
first section of our statute, which lays down a 
test of responsibility. 
1‘ It seems to me that your view that the jury 
should be left absolutely free to reflect the feel- 
ings of the herd means a complete repudiation 
of all law. Under such a practice there would 
be no place for law, nor for a judge. The ques- 
tion of guilt or innocence would depend entirely 
on mob reaction, reflected by or created by 
newspaper comment. Such a view is opposed 
to the theory of our statute which is based upon 
legal tests of crime, while repudiating legal 
tests of insanity.” 
This criticism seems to me to be based upon 
the feeling, from which I am trying to get away 
in this book, that if a man is sent to prison he 
is being punished for a crime of which he is 276 
INSANITY AND THE CRIMINAL LAW 
guilty; but if he is sent to a hospital for the 
insane he is being excused for his conduct and 
being treated. The real question, it seems to 
me, is the practical one of how best society can 
be protected and, too, how this can be done with 
the least damage to the individual who as a 
member of society and as representing, so to 
speak, a certain investment in energy (physical 
and mental) it is to the advantage of society to 
conserve. I have already discussed this matter 
somewhat in Chapter XVIII and shown there, 
in a specific instance, how society is best pro- 
tected by sending the dependent to a hospital 
for mental diseases because he stays there 
longer than he would in prison. There is the 
actual fact. It is my contention that we should 
judge the merits of the two methods by what 
they actually accomplish and not from the 
standpoint of the sentiment attached to such 
words as “guilty” and “acquittal,” “punish- 
ment” and “treatment.” I can testify that the 
criminal would rather take his chances with a 
definite sentence to prison than confinement in 
a hospital for the insane from which he does 
not know when he will get out and from which 
he may never get out. INDEX 
Act an end product, 37 
Act as end result, 215 
Act as individualistic problem, 
216 
Act, a metaphysical abstrac- 
tion, 33 
Action, positive and negative, 
95 
Acts vs. the actors, 30, 36 
Adjustment, simple methods 
of, 19 
Anthropocentric theory of uni- 
verse, 28 
Antipathic emotions, 19, 91, 
168 
Antipathy, personal, 18, 19 
Antisocial conduct, 50 
Asocial conduct, 50 
Avenging personal injuries, 
10 
Behavior, human, 252 
Behavioristic survey, 147 
Capital punishment, 230, 245 
Conduct, 15, 32 
Conduct, criminal and insane, 
153, 154 
Conduct, defective, 53 
Conduct, negatively or posi- 
tively asocial or antisocial, 
50 
Conflict between individual 
and group, 10 
Court, function of, 216, 217 
Crime, 18, 30, 197 
Crime, childish nature of, il- 
lustrated, 155, 156, 157, 158, 
166, 167 
Crime, dynamic factors in- 
volved in, 27 
Crime, increase of, 50, 51 
Crime, not an isolated act, 147 
Crime, a social phenomenon, 
219 
Crime, statutory description 
of, 25 
Crime, theory of treatment of, 
229 
Crimes, 18 
Crime as offense to custom, 
14 
Crimes as simpler adjust- 
ments, 19 
Crimes, statutory, 50, 51 
Criminal, 23, 26, 30, 53 
Criminal, discharge from 
prison, 150 
Criminal, escape of on plea of 
insanity, 4 
Criminals, increase of, 52 
Criminal, innate desire to be, 
19 
Criminal as scapegoat, 13 
Criminal treated like insane, 
221, 225 
Criminal, treatment of, 171, 
172 
Criminal concept, 188, 189, 
190 
Criminal conduct, 20, 22, 25 
Criminal conduct, nature of, 
153, 154 
Criminal law, 22, 182 
Criminal law, functions of, 
175 
277 278 
INDEX 
Criminal, psychology of the, 
154 
Criminal responsibility bill, 
142 
Criminal type, 24 
Criminology, aims of, 220, 
224 
Criminology, principles of, 149 
Criminology, science of, 36 
Criticism of removing defini- 
tions of insanity, 221, 222, 
223 
Cross-examination, 84 
Custom, 14, 194, 202, 203, 204 
Custom as test of right and 
wrong, 197 
Defendant, failure to testify 
of, 94, 95, 96 
Defense psychosis, 243 
Determinism, 215 
Determinism, psychological, 
27 
Direct action, 10, 19 
Disease vs. health, 153 
Disease as possession, 153 
District attorney, 173 
Efficiency, grades of, 98, 99 
Emotion vs. intellect, 154 
Emotions, antipathic, 19, 91 
Energies, utilization of, used 
in crime, 49 
Energy, utilization of, 18 
Evidence, Inadmissible, intro- 
duced, 78, 79 
Evidence, rules of, 256 
Expert, courts and services of, 
260 
Expert, discrediting of, 3, 8 
Expert, the function of, 94 
Expert, functions of medical, 
207, 217 
Expert, non-partisan, 255 
Expert, opinion of, 87 
Expert, placement of, 151 
Expert, way treated, 254, 
259 
Expert testimony, 54 
Expert testimony bill, 143 
Expert testimony, discredit of, 
79, 80 
Expert testimony, discussion 
of, 55 
Expert testimony, way should 
be given, illustration 260, 
261, 262, 263 
Expert witness, 56 
Expert witness, demand of, 
psychologically impossible, 
58 
Expert witness, honesty of, 58 
59 
Expert witness, judicial atti- 
tude expected of, 56 
Expert witness, understanding 
due him, 78, 83 
Expert witness, what expected 
of the, 56 
Eact, created by evidence, 
86 
Father Johannis Schmidt, case 
of, 63 
Feuds, 12 
Folkways, 14 
Goring, 24 
Group, interests of, 10 
Hate, 19 
Hamlet, 85 
Herd critique, projected, 189, 
190 
Homicide, statistics of, 31 
Hypothetical question, 81, 180, 
257, 258 1 
Hypothetical question, objec- 
tions to, 83, 84, 85, 86 
Hypothetical question, theory 
of, 81, 82 
Individual, 48 
Individual vs. society, 21 
Insane, concept, 188, 189, 
190 
Insanity, concept, 270 
“Insanity dodge,” 3, 5, 8 INDEX 
279 
Insanity purely a legal con- 
cept, 102 
Instincts, 47 
Intellect vs. emotion, 154 
Intoxication as a defense, 99, 
100 
Judge, 181, 184 
Judges, functions of, 193, 194 
Judges, a special class, 213 
Judges, to specialize, 150, 151, 
172 
Judicial decisions, analysis of, 
76, 77, 78 
Judicial prejudice, 78 
Judgments, 185 
Juries, 210, 211 
Jury, 180, 181 
Jury, limited to determination 
of facts, 151, 168, 169, 171, 
253, 271 
Jury as miniature society, 184 
Jury system, safeguards of, 
101, 187 
Justice, 205, 217 
Justice, concept, 218 
Law, criminal, nature of the, 
191 
Law, criminal, objects of, 
214 
Law, failure of the, 107 
Law, how it discovers custom, 
illustration, 198, 199, 200, 
201, 202, 203, 204 
Law, inadequacy of, 126 
Law, inadequacy of, to cope 
with mental disease, 123 
Law, language of the, 104 
Law, marine insurance, 198 
Law, not man-made, 191 
Law, natural, 191, 192 
Law, nature of the, 191, 267 
Law schools, courses in, 173 
Law, statutory, 191, 192, 193 
Law, unwritten, 193 
Legal decisions based on tech- 
nicalities, 112, 120, 123 
Legal medicine, university 
courses in, 256, 257 
Legal suggestions for better- 
ment, 141 
Legislative action, 194, 195 
Legislators, functions of, 193, 
194 
Lex talionis, 11 
Lombroso, 24 
Lynchings, 186, 187, 216 
Magistrates Court in New 
York, decisions of, 76, 77, 
78 
Man not a mosaic, 104 
Man a social animal, 10 
Mores, 13, 14 
Motives, 9, 37, 47 
“Not guilty” because of “in- 
sanity,” 4 
Parole officers, 152 
Partisanship removed, 145 
Personality, basic factors of, 
47 
Personality, distorting forces 
acting on, 48 
Personality make-up, 48 
Personality, understanding of, 
224 
Prejudice, 61, 62, 75, 77, 180, 
181 
Present procedure a combat, 
56 
Present situation, 2 
Primitive groups, 11 
Prison, abnormal environment 
of, 225, 226 
Prison psychoses, 230 
Prisoner, refusal to testify of, 
94, 95, 96 
Prisoners, mental condition of, 
4, 5 
Psychiatry and the criminal 
law, 252, 265 
Psychology of condemned 
criminal, 248 
Psychology, present-day, 9 280 
INDEX 
Public defender, 96, 263 
Punishment, 31 
Punishment, early forms of, 
12 
Punishment, inadequacy of, 
31, 32 
Punishment as means of con- 
ditioning conduct, 227, 228 
Punishment, object of, 213 
Punishment, objects of, 30, 
31 
Punishment, theory of, 218, 
227 
Punitive measures, 18 
Race-preservation, instinct of, 
47 
Recidivist, 220 
Regression, 187 
Repression, 215, 226 
Repression, results of, 49 
Responsibility, 89, 168, 169, 
247, 267, 268, 269 
Responsibility in the law, 89 
Responsibility, criminal, 195 
Responsibility, criminal, a le- 
gal question, 272, 273 
Responsibility immaterial, 167 
Responsibility, mental disease 
and, 105, 106 
Responsibility, partial, 96, 97, 
269 
Responsibility, partial, in 
practice, 99, 100 
Responsibility, question of, 
how resolved, 89, 90; exam- 
ple, 91 
Retaliation, vicarious, 12 
Revenge, 168 
Scapegoat, the criminal as, 
13 
Self-determination, 28 
Self-preservation, instinct of, 
47 
Sentence, indeterminate, 152 
Shakespeare, 85 
Sin, 12 
Society a complex symbol, 212 
Society vs. the individual, 21 
Society responsible equally 
with the criminal, 93 
State, concept, 218 
State, function of, toward 
criminal, 229 
State as offended party, 179, 
183 
State as physician, 149 
State, vicarious function of, 
184 
Stealing, 25 
Sympathy, 209 
Tendencies, 9 
Tests of insanity, 102, 196, 
202, 210 
Tests of insanity, obsolete 
medical theories, 103 
Tests of insanity relative, 104, 
105 
Unconscious, the, 38 
Unconscious, 216 
Unconscious motives illus- 
trated, 38, 46 
“Unsound mind,” verdict of, 
4 
“Unwritten law,” 223 
Vengeance, 14, 16, 183, 186, 
218 
Vengeance against the group, 
176 
Vengeance, analogy to manu- 
facture, 17 
Vengeance in early stages of 
society, 17 
Vengeance, effect of necessity 
upon, 17 
Vengeance, impersonal, 177 
Vengeance as a motive denied, 
179 
Vengeance, necessity for, 11, 
12 
Vengeance, negative only, 16 
Vengeance, personal, 19 
Vengeance, private, 10, 11, 14 INDEX 
281 
Vengeance posing as justice, 
216 
Vengeance reaction, 230 
Vengeance, results of denial 
of, 179, 180 
Vengeance, wastefulness of, 
17 
Verdict, 217 
Verdicts, 204, 205 
Verdicts in accord with public 
opinion, 187, 188 
Verdicts contrary to evidence, 
100, 101, 205, 206 
Violence, 197