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Ie WAT WRIA AS ; . aa ar © . i E <~ 2) oe i . =" ‘ - me 4 > ha a ’ Dia ae Ey ae) a en Se ee 4 OE) 62 rl ae a . i h| ee) ae } aa y . 4 se ie J ‘ a | i ee? a : 4 rar} q ! a s ' % * 4 Z : Tas. ae a a Stes < ~ EB = h | ae i : f ; St rs eo) eM ALLiTe HOTaROM | ey | wolhIO0bBA AIBGIGGAIING SUT ET AVIS TO MOMTOARS Sud SRITTYATAY WHY 4O saauTbae 9 = yes Pee alias KONOUATEMT GAOTEM AOR Saale. ibs ; ry a d : uy | Ps in ae tol " = : aT SiH AOD CHA Czal7 za TAS JAOLGRM fk Bi - i oe a : -» aROATTAGA evodenen ADL Bey ei.) ee Oe Bae ger ae Yo otter axervad Gua anooda 9) a ; & 5 i ag Wart! erat aiwt Jaq aaind ude tas | sn atte eeae HEUOR ei pe! Pap cha Ne pastes Ghs emadaLssua Pa Be ae P Ja) ie ORBEA TREATISE ON Dn a ee MEDICAL JURISPRUDENCE BY FRANCIS “WHARTON, Caahisisetivion AUTHOR OF ‘'A TREATISE ON AMERICAN CRIMINAL LAW,”’ ‘‘ PRECEDENTS OF INDICTMENTS,” ‘AMERICAN LAW OF HOMICIDE,”’ ETC, AND MORETON STILLE, M.D., LECTURER ON THE PRINCIPLES AND PRACTICE OF MEDICINE IN THE PHILADELPHIA ASSOCIATION FOR MEDICAL INSTRUCTION. THE MEDICAL PART REVISED AND CORRECTED, WITH NUMEROUS ADDITIONS, BY ALFRED STILLE, M.D. SECOND AND REVISED EDITION. PHIDADEDPHIAs KAY & BROTHER, 19 SOUTH SIXTH STREBRXT, LAW BOOKSELLERS, PUBLISHERS, AND IMPORTERS. 1860. aca all UN a 6 hore : roy bree | Entered disihordtak: to the Act of Congress, in nilte year 1860, ty 109 L99C KAY & BROTHER, 219I0 605 in the Clerk's Office of the Distot Court of the United States in and: for the Easter ern mm nn District of ‘Pennsylvania. a, ~“% i SG - “ avy SF | ‘ : 2 , 4 Re < 2 pie : ¢ I oe J Jul kao oaa et ft t2) aoe af t . 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A TREATISE ON THE PRACTICE OF THE DISTRICT AND SUPREME COURTS OF THE STATE OF TEXAS; with references to the Decisions of the Supreme Court of the State. By Joun Say es, Counsellor at Law. 1 vol. 8vo., 656 pages. Price $6 50. ie a ta ae ed o WH3X ee 1960 PREFACE 10 THE SECOND EDITION. CA In the present edition nearly three hundred pages have been added to the legal and psychological department. The chapters on Insanity | have been rearranged, expanded, and in some material points corrected, so as to bring them in harmony with the current decisions of the English and American courts. Several distinct topics have been in- troduced and examined at length; among which may be mentioned Survivorship; Medical Malpractice; the Legal Relations of Identity ; the presumptions to be drawn from wounds and the Instrument of Death, and the Psychical Indications of Guilt. On the other hand, the chapters on circumstantial evidence have been condensed by abridging cases which in the first edition were new to the professional eye, but which have since become generally accessible. Without making any alteration in the general arrangement of the medical portion of the work, the editor has added to it about eighty pages of new matter, consisting of a chapter on the Signs of Death, besides many illustrative cases, and recent methods of investigation. Very little space has been devoted to the discussion of general principles, for in criminal legal proceedings particular persons and 56 © + acts are concerned, whose reciprocal relations constitute the sole sub- 2 ject of inquiry. All rules, therefore, which are liable to frequent ex- _'\sceptions, should be very cautiously admitted as tests in practice, when “S their weight may incline the scales of justice, and affect the life, ’ liberty, or character of the accused. WY The original text has been carefully revised, and pains everywhere taken to render the language clear, and the statements accurate; in a < w ord, to make this portion of the work, as nearly as possible, wee its Perera author would have done, had he survived to perform a Naa duty. % F. W. > “ yea SS V | 166629 SAL ATIOL ELUNE AEE AY S1ow Soul vp eiatog, ows mat. 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FOEL (288 21h B) pedrall «6 —— 728 Sal ba QU ; ey) fa Bor foe (ORE E al 1b) whadeld ce | BY CRM wee wh bits ett 4 Neila oy, Stet (12h enw) &) sgl .9 = Jolt eacund Py aepthabest'? t oididvs ye Shr (SLY weed e¥ ry. tinted ee BE (ey ) PeBSi6s Ob COS pre D5 tole ay = — 1 eG ane Sb Bie) allie, ot rh ee Ob2E stil “eet ee eens . ode 8) afhea® Jn his taee in CUES e (8 OS ,orpld uy | soma ds acretel isin a Pot « Feth) ania § Raines Sale BS GORE GS (O08 otoM FH atagud .¢ a> | A: Tene Pi Wileraee > fieae Por eke 8° (BeS .aalft 6) onan jl eg ee TR (Vi pt) B08. ft jivte Gk Aa Tye Jamie a —— | GLOr 2h) nate ote che ., tay vale revor eit ell y ey ij Laon? dv---oee4 BOS (Whi yt th) ne A aid ingh ib shale i | Soe ae: be inf A ese ey te io RD) Pe 7 hag Net aut reuwlif ait 18h tit! ne (Ney ei ep iae: on hime SD » Ay! ae sae V7) nae ~ $i) ; SABI td ei Ms hao W lee | en pee evtod, 4) pte ) Winslow on Medico-Legal Evidence in cases of Insanity, 129, 130. (c) Nottridge v. Ripley, before Chief Baron Pollock, sitting at Nisi Prius, June, 1849, reported in full in Journ. of Psyc. Med. vol. 2, p. 630. 3 39 § 44] COMMISSIONS OF DRUNKENNESS. [BOOK I. exploded with great ability by very eminent psychological authority,(d) and has not been followed by the current of American judicial opinion. There are necessarily cases when the safety of property and the health of the patient himself, require confinement in an asylum, though there be no danger of vio- lence to himself and others, and it is not likely that the existence of such cases will be again judicially questioned. Whether the confinement, in any parti- cular case, was proper or not, will be for the court and jury, if an action of false imprisonment be brought, to determine specially. And the law in such a case undoubtedly is, that confinement is justifiable, if either the safety of the patient or others require it, or it is necessary for his restoration to health. (e) § 44. In respect to drunkenness, the law is, that while occasional acts of intoxication will not justify a finding of “habitual” drunkenness, yet on the other hand, it is not necessary for such a finding that the party should be constantly in an intoxicated state. Thus, in Pennsylvania, Knox, P. J., in putting the case upon a traverse to the jury, said: ‘‘ Neither was it necessary to make out the case that a person should be constantly in an intoxicated state, that a man might be an habitual drunkard, and yet be sober at times for days and weeks together. That the question was; had the traverser a fixed habit of drunkenness? Was he habituated to intoxication whenever the opportunity offered? The question is one of fact for the jury to find, but the court has no hesitation in saying, that the man who is intoxicated or drunk the one-half of his time, should be pronounced an habitual drunkard.’”? And in the Supreme Court, Rogers, J., said: ‘To constitute an habitual drunkard, it is not necessary that a man should be always drunk. It is impossible to lay down any fixed rule as to when a man shall be deemed an habitual drunk- ard. It must depend upon the decision of the jury under the direction of the court. It may, however, be safely said, that to bring a man within the meaning of the act, it is not necessary that he should always be drunk. Occa- sional acts of drunkenness, as the judge says, do not make one an habitual drunkard. Nor is it necessary he should be continually in an intoxicated state. A man may be an habitual drunkard, and yet be sober for days and weeks together. The only rule is, has he a fixed habit of drunkenness? Was he habituated to intemperance whenever the opportunity offered? We agree that a man who is intoxicated or drunk one-half his time is an habitual drunk- ard, and should be pronounced such. We also concur with the court, that if the jury found the traverser to have been at the date of the inquisition an habitual drunkard, it was necessary to decide whether he was capable or inca- pable of managing his estate. His incapacity in that event is a conclusion of law. It is not necessary to say, it is a presumptio juris et de jure; but, at least, it throws the burden of proof of capacity on the traversers. Indeed, it may be well doubted, whether his management or mismanagement of his estate is a matter of inquiry. It is very certain, under the act of the 13th of June, (d) See a remonstrance with the Lord Chief Baron, touching the case of Nottridge v. Ripley, by John Conolly, M. D., 1849. A letter to the Lord Chancellor on the defect of the law regulating the custody of lunatics, by Charles Curten Cooper, London, 1849. Psychological Review, vol. 2, p. 564; ib. vol. 3, p. 14. A letter to the Right Hon. Lord Ashley, M. P., relative to the case of Nottridge v. Ripley, Dundee, 1849. (e) Hinchman »v. Ritchie, Brightley R. 143. 34 BOOK I.] UNSOUNDNESS— RESPONSIBILITY FOR CRIME. [$ 45 1836, proceedings may be instituted against an habitual drunkard who has no estate. But this cannot be if the mismanagement of it be necessary. It is well said, that there must be an evidence of squandering property, to support a proceeding to declare an individual an habitual drunkard, else the object of the act in many cases would be defeated. For it is precautionary in its design, and hence a disposition of mind or body which might lead to the wasting of an estate, is sufficient to justify the enforcement of its provisions. (/) It is indeed impossible that a man can be an habitual drunkard without waste or mismanagement, as the very act of drunkenness is itself waste. In this case, even if required, the evidence was full and plenary to this point.’’(g) Ill. WHAT DEGREE OF UNSOUNDNESS AVOIDS RESPONSIBILITY FOR CRIME. § 45. The consideration to be given to this species of defence is thus justly and humanely stated by Parker, C. J., of New Hampshire, in a charge to the grand jury: ‘The public papers, in giving reports of trials, often say, ‘the defence was, as usual, insanity,’ or make use of some other expression, indicat- ing that this species of defence is resorted to, in desperation, for the purpose of aiding in the escape of criminals. Such opinions are propagated, in many in- stances, by those whose feelings are too much enlisted, or whose ignorance re- specting the subject is too great, to permit them to form a dispassionate and intelligent judgment; and they have a very pernicious tendency, inasmuch as they excite the public mind, and the unfortunate individual who is really entitled to the benefit of such defence is thereby sometimes deprived of a fair trial. They tend to make the defence of insanity odious, to create an impres- sion against its truth in the outset, and thus to bias the mind of the jury against the prisoner, and to induce them to give little heed to the evidence, in the very cases where the greatest care and attention and impartiality are necessary for the development of truth and the attainment of justice. ‘“‘We all concur in the doctrine of the law, that for acts committed during a period of insanity, and induced by it, the party is not responsible; that’ when the criminal mind is wanting—when, instead of being guided by the reason which God bestowed, the individual is excited and led on by insane fury and impulse, or by the aberrations of a wandering intellect, or a morbid and dis- eased imagination, or a false and distorted vision and perception of things— punishment should not follow the act as for an offence committed ; that when the faculty of distinguishing between right and wrong is wanting, the indi- vidual ought not to be held as a moral and accountable agent. As well, nay, much better, might we, as was formerly done in France, institute prosecutions against the brute creation for offences committed by them, and hang a beast for homicide, than to prosecute and condemn a human being who is deprived of his reason; for in such case there is no hope of restoration to a right mind, and a reinstating of a fellow-citizen, who has been once lost to the community, (f) Sill v. M’Night, 7 W. & Ser. 245. (g) Ludwick v. Com. 6 Harris, 173. 35 § 45] RESPONSIBILITY FOR CRIME. [BOOK I. in the rights and affections of humanity. But if we imbibe the idea that instances of insanity are very rare—that derangement exists only when it manifests itself by incoherent language and unrestrained fury—that the de- fence, when offered, is probably the last resort of an untiring advocate, who, convinced that no real defence can avail, will not hesitate to palm off a pre- tended derangement to procure the escape of his client from merited punish- ment—if in this way we steel our hearts against all conviction, it is of little avail that we agree to the abstract proposition, that insanity does in fact furnish a sufficient defence against an accusation for crime. “There are undoubtedly instances where this defence is attempted from the mere conviction that nothing else will avail—cases where the advocate forgets the high duty to which he is called, and excites a prejudice against the case of others, by attempting to procure the escape of a criminal under this pretence; but such are truly rare, and usually unsuccessful.” (gq) The difficulties that have attended the discussion of this branch of the law of lunacy have arisen from an attempt to reduce into an inflexible code opinions which, while relatively true in their particular connection, were not meant for general application. Thus, for instance, when a defendant, in whom there is no pretence for mania or homicidal insanity, claims to be exempt from punish- ment on the ground of incapacity to distinguish right from wrong, the court very properly tells the jury that the question for them to determine is, whether he labors under such incapacity or not. The error has been to seize such an expression as this as an arbitrary elementary dogma, and to insist on its appli- cation to all other cases. Or, take the converse, and suppose the defence is merely homicidal insanity. In such a case it would be very proper to tell the jury that, unless they believe the homicidal impulse to have been uncontrollable, they must convict. And yet nothing would be more unjust than to make this proposition, true in itself, a general rule to bear on such cases as idiocy. It is proposed to avoid this difficulty by treating this question practically, in the only way in which it can arise in courts, and to consider briefly, not what is the general limit of moral responsibility in the abstract, but in what cases such responsibility ceases to exist.(h) These will be considered as follows :— (99) Cited Elwell’s Malpractice, p. 364. (h) The difficulty in this respect has been increased by the looseness with which legal adjudications are cited by even some of the more eminent text-writers. In fact, while the exigencies of counsel and the duty of judges require a constant recourse to the text-books on this particular science, in making up such text-books the authorized law reports have not been sufficiently relied upon. Dr. Beck, it is true, in his valuable treatise, has spread on his pages reports of several of the older cases, and the same line of authorities has been more cursorily reviewed by others. And even in the very recent edition of Dr. Ray’s work on this particular subject—“The Medical Jurispru- dence of Insanity”—a work as remarkable for precision of expression and elegance of style as for general judiciousness and accuracy, it is declared that, “judging from the few cases that have been reported, the course of practice in the English criminal courts has been in strict conformity with the principles laid down by Hale.” The “principles laid down by Hale”’ are those which that humane judge and laborious text-writer— who prided himself in having never, on speculations of his own, advanced an opinion or pronounced a judgment—had drawn from the medical authorities of that day. These principles have since then been greatly modified both by legal and medical writers ; and it is to be regretted that either class, in reviewing the matter, should confine themselves to the earlier authorities, and then declare that the old law con- tinues unaltered, “judging from the few cases that have been reported.” The fact is that both in this country and in England the cases “‘reported’’ on the subject are not 36 BOOK I.] § UNSOUNDNESS—RESPONSIBILITY FOR CRIME, [$ 45 1. Where the defendant is incapable of distinguishing right from wrong in reference to the particular case. “few,” but numerous; and if they had been examined in detail, it would have been found that they kept pace with almost equal step with the advance of medical science. How far the latter has kept pace with them may be estimated from the fact that Dr. Ray, the author of the fullest and most recent work on this vexed subject, has, even in his edition of 1853, cited scarcely a single volume of the thousands in which the authorized reports of the American Courts are published. It is true that several American cases are noticed, and delicate shades of opinion declared to have been settled by them, but they are cited from the “notes of counsel,” from “ Niles’ Regis- ter,’’ from the “ Dollar Newspaper,” and from “ Zion’s Herald.” Were no authorized reports to be had, these references might be received, though even then with great allowances ; but in two, at least, of the four cases mentioned, authorized reports, both in pamphlet and in aggregate form, have been for some years before the public. Of course not even substantial exactness can be secured by the use of evidence not only so entirely secondary, but which, at the time it was issued, was meant only for popu- lar use. Of the mistakes arising from looseness of citation in this respect, we may take as an illustration Wood’s case, which is relied upon with much complacency by Dr. Winslow, in his late Lectures on Insanity (p. 102), to show that in America “a verdict of lunacy”’ will be recorded under circumstances which really show nothing more than vehement passion and morbid excitement. In that case, which occurred in Philadelphia in 1838, a father shot his daughter in a paroxysm of rage, caused by her improvident marriage. The prosecution was abandoned by the attorney-general, under circumstances which were not at all connected with the defendant’s sanity or insanity; and a verdict of acquittal was rendered, not of lunacy, in the teeth of a charge from the very able and humane judge (Judge King) who tried the case, that the defence of insanity had not been in any degree substantiated. The verdict is no authority whatever. It was produced by circumstances very derogatory to public justice, it was received with unbroken disapprobation by the entire community, and it was in direct opposition to the charge of the court, instead of being responsive to it. Had the official report of the case been resorted to, the last fact, at least, would have been discovered. Some degree of the severity of the censure with which the common law has been visited in this connection will be abated by the accomplished gentlemen who have pronounced it, when they consider these facts. In fact, when the nature of the Com- mon LAw—words oftener used than understood—is considered, a much modified view will be taken. The common law has been defined to be statutes worn out by time; it may more properly be treated as the precipitate of the wisdom of all ages, all pro- fessions, all countries. If a question is to be tried involving the most delicate point of mechanics, the testimony of experts is taken, and what they declare to be the law of philosophy, the judge declares to be the law of the land. If a question of marine right is to be determined, the mysterious laws of the sea are invoked—the “sweet influences of the Pleiades and the bands of Orion’”—and as taught by science, they become part of the common law. And so on a trial where the question at issue was whether a certain species of fish was able to surmount obstructions by which a river in Maine had been dammed up by parties interested in the soil, it was held that the observations of scientific men, versed in this particular topic, were part of the common law of the land for the specific case; and that therefore naturalists, who had given attention to the habits of this fish under such circumstances, could be called to give their opinion on the merits. (Cottrill v. Mason, 3 Fairf. 222. See more fully as to cases in which the opinions of experts are evidence, post, § 94.) And the great works of the masters in all professions have become also part of the common law. Even by a judge of remarkable rigidity as a literal commentator of the old writers, this is freely admitted. “I consider the administrators of criminal law greatly indebted to them (writers on medical jurisprudence, &c.) for the results of their valuable experience, and professional discussions on the subject of insanity ; and I believe that those judges who carefully study the medical writers, and pay the most respectful but discriminating attention to their scientific researches on the subject, will seldom if ever submit a case to a jury in such a way as to hazard the conviction of a deranged man.’’ (Hornblower, C. J., 1 Zabriskie, 196.) So that when in any particular instance ignorance may be exhibited or injustice done, it must be attributed, not to a want of flexibility in the system, but to an imperfect dissemination of truth by those who have assumed its guardianship. Newspaper and other unofficial reports, in fact, however interesting, are of no legal authority, and they should be to a peculiar degree received with the same qualifications which have been noticed as required by all nisi prius charges. What a judge tells a 37 § 46] RESPONSIBILITY FOR CRIME. [BOOK I. 9. Where he is acting under an insane delusion as to facts which, if true, would have relieved the act from responsibility, or when, in connection with _ such: insane delusion, his reasoning powers are so depraved as to make the commission of the particular act a natural result of the delusion. 3. When he is impelled by a morbid and uncontrollable impulse to commit the particular act. After which will be considered, 4, The relations of drunkenness to responsibility for crime. When other cases arise in which a sober and enlightened medical observa- tion declares that there is no real moral responsibility in the patient, the same opinion will be adopted by the courts upon trial. At present the reported cases may be classed under the preceding heads, to which attention is now invited. Ist. When the defendant is incapable of distinguishing right from wrong © in reference to the particular act. § 46. Under this head may be enumerated persons afflicted with idiocy or amentia, or with general mania. It is certain that wherever such incapacity is shown to exist, the court will direct an acquittal; or if a jury should con- vict in the teeth of such instructions, the court will set the verdict aside. The authorities to this effect are so numerous, that a general reference to them is all that is here necessary, it being observed at the same time, that while the earlier cases lean to the position that such depravation of understanding must be general, it is now conceded that it is enough, if it is shown to have existed jn reference to the particular act. (7) To precisely this effect is the answer of the fifteen judges to the question propounded to them by the House of Lords in June, 1843—answers which were extra-judicially delivered, and which, therefore, though of weight as opin- jury is meant for a particular issue. If the evidence should show an old grudge, his duty would undoubtedly be to say to the jury that drunkenness must be left entirely out of consideration. If the defendant and the deceased were mere strangers, and the defendant in sudden passion, from what, to a man in his state of mind, would be ade- quate provocation, killed the deceased, it would be proper,to tell the jury that drunk- enness in this case would lower the case to manslaughter. It is plain, however, that expressions directed to a particular state of facts, cannot properly be severed from the context, and propounded as absolute independent principles applicable to all cases whatever. It is only by carefully marshalling the facts that we learn what the opin- ion of the judge trying the case really was, and even then the position of the court, the opportunities it has possessed for revision and a consultation of authorities after argument, and the authenticity and accuracy of the report, enter largely into the question how far the opinion so expressed is of weight. (7) 1 Inst. 247; Bac. Abr. Idiot. Co. Litt. 247, (a); 1 Russ. on Cr. by Greaves, 13 ; 1 Hawk. cl. s. 3; 4 Bla. Com. 24; Collinson on Lunacy, 573, 673, (n.); R. v. Oxford, 9C. & P. 533; Burrow’s Case, 1 Lewin, 238; R. v. Goode, 7 Ad. & El. 536; 67 Hans. Par. Deb. 728 ; Bowler’s Case, Hadfield’s Case, Ibid. 480; 1 Russ. 11; 27 How. St. Tr. 1316 ; Com. v. Rogers, 7 Mete. 500; 7 Bost. Law Rep. 449; Com. v. Mosler, 4 Barr, 267 ; Freeman v. People, 4 Denio, 10; State v. Spencer, 1 Zabriskie, 196 ; State v. Gardiner, Wright’s Ohio R. 392; Com. v. Farkin, 3 Penn. L. J. 482; Vance v. Com. 2 Virg. C. 132; M‘Allister v. State, 17 Alab. 434; U. S. v. Shults, 6 McLean, 121; People v. Sprague, 2 Parker C. R. 43; State v. Hunting, 21 Mis. (6 Bennet) 464; R. v. Barton, 3 Cox C. C. 275; R. v. Offord, 5 C.& P. 168; R. v. Higginson, 1 C. & K. 129; R. v. Stokes, 3 C. & K. 185; R. v. Layton, 4 Cox, C. C. 149; R. v. Vaughan, 1 Cox, C. C. 80. 38 BOOK I.] INSANE DELUSIONS. [§ 48 ions, are not binding as authority. ‘The jury,” they said, “ ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes until the contrary be proved to their satisfaction ; and that to establish a defence on the ground of insanity, it must be clearly proved that at the time of committing the act, the party ac- cused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong.’’(/) 2d. When the defendant is acting under an insane delusion as to circum- stances, which, tf true, would relieve the act from responsibility, or where his reasoning powers are so depraved as to make the commission of the particular act the natural consequence of the delusion. § 47. The answer of the English judges on this point is worthy of notice. The question propounded to them in this respect, was, ‘“‘If a person, under an insane delusion as to existing facts, commits an offence in consequence thereof, is he thereby excused??? ‘To which question,’’ they replied, ‘“‘the answer must of course depend on the nature of the delusion: but, making the same assumption as we did before, namely, that he labors under such partial delusion only, and is not in other respects insane, we think he must be considered in the Same situation as to responsibility, as if the facts with respect to which the delusion exists, were real. For example; if under the influence of his delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self defence, he would be exempt from punishment. If his delusion was, that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.” | § 48. So far as the law thus stated goes—and it is stated with extreme caution—it has been always recognized as binding in this country. Even where there is no pretence of insanity, it has been held in one State, that if a man, though in no danger of serious bodily harm, through fear, alarm, or cowardice, kill another under the impression that great bodily injury is about to be inflicted on him, it is neither manslaughter nor murder, but self defence ;(/) and though this proposition is too broadly stated, as is remarked by Bron- son, J.. when commenting on it in a recent case in New York, and should be qualified as to make it necessary that there should be facts and circumstances existing which would lead the jury to believe that the defendant had reasonable (in proportion to his own lights) grounds for his belief, yet with this qualifica- tion it is now generally received.(?) And, indeed, as shown by Mr. Justice Bronson, in the case just noticed, after the general though tardy acquiescence (j) 1 Car. & Kir. 134; 8 Scott, N. R. 595. (k) Granger v. State, 5 Yerger, 459. (/) Shorter v. People, 2 Comstock, 197-202, 8. C. 4 Barb. 460; Monroe v. State, 5 Geo. 85; State v. Scott, 4 Iredell, 409; People v. M’Leod, | Hill, 420; People v. Pine, 2 Barbour, 168; Roberts v. Slate, 3 Georg. 310; Com. v. Rogers, supra. See generally Wharton on Homicide, 216, 7, 8, 9, &c., and Whart. C. L. 1024-8, and a very interest- ing series of notes in 7 Bost. Law. Rep. (N. 8.) 575, 689, &. See, also, Sloo’s case, reported in 15 Am, Journ. Ins. 33. 39 § 49] RESPONSIBILITY FOR CRIME. [BOOK I. in Selfridge’s case, where the same view was takan as early as 1805, by Chief Justice Parker, of Massachusetts, and after the almost literal incorporation of the leading distinctions of the latter case in the revised Statutes of New York, as well as into the judicial system of most of the States, the point must be considered as finally at rest. Perhaps the doctrine, as laid down originally in Selfridge’s case, would have met with a much earlier acquiescence had not the supposed political bias of the court in that extraordinary trial, and the remark- able laxity shown in the framing of the bill and in the adjustment of bail, led to a deep-seated professional prejudice which struck at even such parts of the charge as were indisputably sound.(m) In Levett’s case, which has never been questioned, and which has been sanc- tioned by the most rigid of the common law jurists, it was held a sufficient defence to an indictment for murder, that the mortal blow was struck by the defendant under the delusion that the deceased was a robber, who had entered the house.(mm) § 49. In none of the cases which have just been noticed, is the actual exist- ence of danger an essential ingredient, and certainly, as the intentions of an assailant are incapable of positive ascertainment, such a danger can never be absolutely shown to exist. It is true that when the point has not been directly before the judicial mind, dicta have been thrown out to the effect, that the danger must be such as to alarm a reasonable man, but whenever the requisite state of facts has been presented, courts have not hesitated to say that the danger must be estimated, not by the jury’s standard, but by that of the defend- ant himself. Thus, a very enlightened and learned judge in Pennsylvania, one who would be among the last to weaken any of the sanctions of human life, in a late case directed the jury to take into consideration ‘‘the relative characters, as individuals,’’ of the deceased and the defendant, and, in deter- mining whether the danger really was imminent or not, to inquire ‘‘ whether the deceased was bold, strong, and of a violent and vindictive character, and the defendant much weaker, and of a timid disposition.”?” And to the same effect will be found the cases in other American Courts elsewhere more parti- cularly noticed.(mmm) (m) In a former work (Wharton’s C. L. 2d ed. 390), the present writer went into a critical examination of Selfridge’s case, and advanced the opinion that the verdict, as well as the preliminary proceedings, were inconsistent with a just appreciation of human life, and with the dignity of public justice. This view is by no means re- tracted; and the gradual development of the political correspondence of those days shows that an approval of Selfridge’s course—the shooting down by a man of thirty of a lad of eighteen, then an undergraduate in Harvard College, because the latter thought proper to suppose that the former, whose father he had just posted, might be ready to avenge the insult—was made a party test. Indeed, John Adams (Cunning. Cor. 70) tells us that “the great political parties in the State were arranged under their respective standards on the simple question of the guilt or innocence of an indi- vidual under a criminal accusation.” But it is due to the excellent jurist who pre- sided at the trial to say that, however, in the reception and adjustment of bail—two thousand dollars—he may have been influenced by those political heats to which even the bench in those times was subject, his charge is a fair statement of the English com- mon law, as adapted to our social condition. And however great may have been the zeal with which the case has been assailed, it is now impossible to refuse to recognize it as having been largely and definitely influential in settling this branch of American Jurisprudence. (mm) Levett’s case, Cro. Car. 438, 1 Hale, 42, 474, Wharton’s C. L. § 18, 1027. (mmm) See Wh. C. L. § 641, &c., 1026-7. 40 BOOK I.] INSANE DELUSIONS, [§ 51 § 50. If, therefore, a delusion that a party is in danger, whether such delu- sion be the result of insanity or of physical causes, is a justification of violence adequate to remove the supposed danger—and the answer of the English judges on this point corresponds with our own— it is difficult to avoid the con- clusion, that a delusion as to the amount of force necessary to obviate the imagined attack should be equally potent. Thus, for instance, it is stated by the English judges, that if the party is under an insane delusion that the de- ceased is about to take his life, and he kills him to prevent it, he is to be exempt from punishment. The gist of this position consists in the delusion. If, therefore, by an insane delusion, or depravation of the reasoning faculty, the defendant insanely believes, either that the imagined evil is so intolerable as to make life-taking necessary or justifiable in order to avert it, or that while the evil is of a lesser grade, life-taking is an appropriate and just way of getting rid of it, the same reasoning applies. The principle may logically be stated thus :— 1. Any species of insane delusion exempts from punishment the perpetrator of an act committed under its influence. 2. The belief, unfounded in fact, that a party is in immediate danger of his life from another, is such a delusion. Or the belief that taking the life of another is the appropriate remedy for a minor though imagined evil, is also such a delusion. 3. Therefore, homicide, under either of these beliefs, is not liable to punish- ment. (7) § 51. The minor premise, it will at once be seen, may be varied, without weakening the conclusion, by inserting in its place any insane delusion, the existence of which would deprive the act of guilty consciousness. That an insane delusion, as to the value or meaning of human life, will have this effect, even though the party himself knows when committing the act that he is doing wrong, and is violating the laws of the land, is illustrated by Lord Erskine, in a well-known case: ‘Let me suppose,’”’ he said, “the character of an insane delusion consisted in the belief that some given person was any brute animal, or an inanimate being (and such cases have existed), and that upon the trial of such a lunatic for murder, you, being on your oaths, were convinced, upon the uncontradicted evidence of one hundred persons, that he believed the man he had destroyed to have been a potter’s vessel; that it was quite impossible to doubt that fact, although to other intents and purposes he was sane—answering, reasoning, acting as men not in any manner tainted with insanity converse and reason and conduct themselves. Suppose, further, that he believed the man whom he destroyed, but whom he destroyed as a potter’s vessel, to be the property of another, and that he had malice against such supposed person, and that he meant to injure him, knowing the act he was doing to be malicious and injurious; and that, in short, he had full know- (n) It is important that by “punishment,” as here used, should be understood such punishment as is inflicted on persons of sound mind. It is essential, however, to the policy of the present more humane mode of treatment for the insane, that, in all cases where a party is acquitted on ground of insanity, strict confinement should be directed, in such a way as will exempt the community from any probable recurrence of such delirious outrages. This will hereafter be more fully considered: post, §§ 259-276. 4] § 51] RESPONSIBILITY FOR CRIME. [BOOK I. ledge of all principles of good and evil; yet would it be possible to convict such a person of murder, if, from the influence of the disease, he was ignorant _ of the relation in which he stood to the man he had destroyed, and was utterly unconscious that he had struck at the life of a human being ?’’(0) An instance of an hallucination, founded on an intended auricular decep- tion, is given in Charles Brockden Brown’s novel of Wieland, and is well known to be founded on facts. A man of excessively morbid temperament is so wrought upon by ventriloquism, as to believe himself under supernatural command to kill his wife. He does so under the stress of what he conceives to be a pure legal necessity. A similar case may be supposed in a sincere be- liever in spirit-rapping, who is ordered by the medium to commit a violation of the law. In this case the medium is the principal in the first degree, but the actual perpetrator of the act, under the present condition of the law, is entitled to an acquittal on the ground of insanity. At the same time it is very important that in all such cases future restraint should be applied, until a sound condition of the reason be restored. Similar delusions in case of sleep-drunkenness have been held to confer irresponsibility.(00) A man fancies himself to be the Grand Lama or Alexander the Great, and supposes that his neighbor is brought before him for an invasion of his sove- reignty, and he cuts off his head or throttles him. He knows he is doing wrong; perhaps, from a sense of guilt, he conceals the body: he may have a clear perception of the legal consequences of the act. According to Mr. Wigan, such an association of a consciousness of the objective guilt and consequences of an act with an insane delusion, as to its subjective relation, is readily ex- plained on the principle of the duality of the human mind; but however this ~ may be, it is a matter in which all observers agree that the lunatic is, in most instances, conscious of the moral relations of his conduct.(p) Nor, even under the severe sanction of the older English text writers (who have, by their failure to reach this point, demonstrated how dangerous it is, with our im- perfect experience, to attempt to codify or dogmatize the laws into a few absolute propositions), has this truth evaded the practical recognition of the courts. ‘Thus, in a case where it was proved that the defendant had taken the life of another under the notion that he was set about with a conspiracy to subject him to imprisonment and death, Lord Lyndhurst, while quoting with apparent entire acquiescence, Hale’s doctrine, as affirmed by Sir James Mans- field in Bellingham’s case, thought it not too liberal a sweep for him to tell the jury that they might “acquit the prisoner on the ground of insanity, if he did not know, when he committed the act, what the effect of it was with refer- ence to the crime of murder.’”’ Now an acquittal would be easy enough if it be necessary, in order to create responsibility, that the party should know the effect of the act with reference to a question whose meaning, even to the court itself, appears to have been enveloped in so much mist. But there can be no (0) Winslow on Plea of Insanity, 6. (00) Post, § 151, &e. (p) Wigan on Insanity, &c., London, 1844, 65 ; Winslow, Plea of Insanity, 16; Ray. Med. Jur. of Ins. § 17 ; Siebold Gericht, Med. § 219; Pinel, Traité sur alienation men- tale, 2d ed., Par. 1809, 156; Riel, Fieberlehre, 4 Bd. 396; Groos, Die Lehre von der Mania sine Delirio, Heidelberg, 1830; De Boismont on Halluc., Phil. 1853, 506. 42 BOOK I.] HOMICIDAL MANIA. [§$ 58 doubt, after careful examination of the whole case, that the point Lord Lynd- hurst decided was, that a man who, under an insane delusion, shoots another, is irresponsible when the act is the product of the delusion. Such, indeed, on general reasoning, must be held to be the law in this country, and such will it be held to be when any particular case arises which requires its application. The fact that against this view militate certain expressions—obiter dicta—in recorded opinions, as well as in the answers of the English judges, will not prevent its practical recognition, any more than Lord Lyndhurst was pre- vented, by the first class of authorities, from advising the acquittal of Offord, and afterwards maintaining that that acquittal was consistent with the very precedents now cited against it. § 52. The delusion, however, must go to the root of the crime; or, in other words, the crime must have been the result of the delusion. Dr. Caspar(q) has given us a pregnant illustration of this: A merchant, named Schraber, was convicted of cheating by false pretences and false information, and was sentenced to imprisonment for six years. On an application to the court to reconsider the sentence, insanity was set up, and it appeared that the prisoner either felt or feigned a belief that he was a legitimate son of the late Duke Charles of Mecklenberg Strelitz; which certainly, if not a mere fiction, was an insane delusion. Much reason existed to believe that the whole thing was simulated; but independently of this, the court was clear that as the mania, if real, had no connection with his crime, it formed no ground for a revision of the sen- tence. Partial insanity, it is clear, does not exonerate when the reason is not affected as to the particular act. (qq) 3d. Where the defendant is impelled by a morbid and uncontrollable impulse to commit the particular act.(7r) § 53. The questions propounded to the English judges related solely to the doctrine of insane delusions; and the replies, though containing general ex- pressions, can hardly, even in England, be considered as authoritative in a case where the defence is monomaniac impulse. In this country, the effect of such a defence, as distinguished from that of insane delusion, has been the subject of special consideration. The first case in which it was gravely considered is that of Commonwealth v. Rodgers, before the Supreme Court of Massachusetts, in the spring of 1844.(rr) Chief Justice Shaw—whose conservative tenden- cies on the great sanctions of human life cannot be suspected—found himself, in preparing his charge, embarrassed by the conflict between the dogmas of the older judges and the necessities of the particular case, and there is an evident struggle on his part to preserve as much as he could of the letter of the former (q) Wochenschrift, Gr. 31-32. (qq) State v. Hunting, 21 Miss. (6 Bennett), 464; Bovard v. State, 30 Miss. (1 George), 600; Com. v. Mosler, 4 Barr, 266. (r) The editors of the 11th edition of Beck’s Medical Jurisprudence (vol. 1, p. 741) give some valuable remarks as to the difficulties attending the nomenclature of this species of derangement. (rr) This case is reported with great fulness, in pamphlet shape, by Messrs. Bemes & Bigelow, and is incorporated, in a condensed form, in the 7th volume of Metcalf’s Re- ports, p. 500. 43 § 53] RESPONSIBILITY FOR CRIME. [BOOK I. and at the same time to establish a principle by which the latter could be properly respected. He begins—we cite from the authorized report—by laying down two propositions of great breadth. ‘In order to constitute a crime,” he says, ‘‘a person must have intelligence and capacity enough to have a criminal intent and purpose; and if his reason and mental powers are either so deficient that he has no will, no conscience, ov controlling mental power, or if, through the overwhelming violence of mental disease, his intel- lectual power is for the time obliterated, he is not a responsible moral agent, and is not punishable for criminal acts. These extremes,’ he then proceeds to state, “are easily distinguished, and not to be mistaken. The difficulty lies between these extremes, in the cases of partial insanity, where the mind may be clouded and weakened, but not incapable of remembering, reasoning, and judging; or so perverted by insane delusion, as to act under false impres- sions and influences.’’? ‘To such cases—to those where the mind is not ‘‘inca- pable of judging,” &c., and to those where it acts “under false impressions and influences,’’—and to such alone, he applies the “right and wrong” test ; reserving it toa very small sphere of action, since the defence of insanity would scarcely be ventured where there was both a capacity to judge, reason, and remember, and a freedom from false ‘‘ impressions and influences.” Taking up the particular defence of monomania, which was that advanced in the case before him, he proceeds to state the law, with a liberality in entire accordance with the weight of medical authority. ‘This’? (monomania) “may operate as an excuse for a criminal act in one of two modes. 1. Hither the delusion is such that the person under its influence has a real and firm belief of some fact, not true in itself, but which, if it were true, would excuse his act : as where the belief is that the party killed had an immediate design upon his life, and under that belief the insane man kills in supposed self-defence. A common instance is where he fully believes that the act he is doing is done by the immediate command of God, and he acts under the delusive but sincere belief that what he is doing, is by the command of a superior power, which supersedes all human laws, and the laws of nature. 2. Or this state of delusion indicates, to an experienced person, that the mind is in a diseased state; that the known tendency of that diseased state of the mind is to break out into sudden parox- ysms of violence, venting itself in homicide, or other violent acts towards friend and foe indiscriminately ; so that, although there were no previous indications of violence, yet the subsequent act connecting itself with the previous symp- toms and indications, will enable an experienced person to say, that the outbreak was of such a character that, for the time being, it must have overborne memory and reason; that the act was the result of the disease and not of a mind capable of choosing; in short, that it was the result of uncon- trollable impulse, and not of a person acted on by motives, and governed by will.” * * * “ Are the facts of such a character, taken in connection with the opinion of professional witnesses, as to induce the jury to believe that the accused was laboring for days under monomonia, attended with delusion, and did thus indicate such a diseased state of the mind, that the act of killing the warden was to be considered as an outbreak or paroxysm of disease, which 44 BOOK I.] HOMICIDAL MANIA. [$ 55 for the time being overwhelmed and superseded reason and judgment so that the diseased was not an accountable agent? If such was the case, the accused is entitled to an acquittal.” § 54. In the fall of 1846, a similar defence was started before three of the judges of the Supreme Court of Pennsylvania, then holding an Oyer and Ter- miner in Philadelphia. In his charge to the jury, Chief Justice Gibson—a most able judge, thoroughly disciplined in and wedded to the common law, but at the same time endowed with a remarkable zest for and a mastery over collateral sciences—after, in the first place, vehemently repudiating the doctrine that partial insanity excuses anything but its direct results, and sliding, in reference to such cases, into the “right and wrong” test, proceeds: ‘‘But there is a moral or homicidal insanity, consisting of an irresistible inclination to kill or to commit some other particular offence.(s) There may be an unseen ligament pressing on the mind, drawing it to consequences which vt sees but cannot avoid, and placing it under a coercion which, while its results are clearly perceived, is incapable of resistance. ‘The doctrine which acknowledges this mania is dangerous in its relations, and can be recognized only in the clearest cases. It ought to be shown to have been habitual, or at least to have evinced itself in more than a single instance. It is seldom directed against a particular individual; but that it may be so, is proved by the case of the young woman who was deluded by an irresistible impulse to destroy her child, though aware of the heinous nature of the act. The frequency of this constitutional malady is fortunately small, and it is better to confine it within the strictest limits. If juries were to allow it as a general motive, operating in cases of this character, its recognition would destroy social order as well as personal safety. ‘To establish it as a justification in any particular case, it is necessary either to show, by clear proofs, its contemporaneous existence evinced by present circumstances, or the existence of an habitual tendency developed in previous cases, becoming in itself a second nature.’ (ss) § 55. In a still earlier case in Pennsylvania, Judge Lewis, then presiding in Lycoming County, and now Chief Justice of Pennsylvania, a judge by whom the subject of medical jurisprudence has received peculiar and careful attention —recognized the same doctrine, though with even greater reluctance. ‘‘ Moral insanity arises from the existence of some of the natural propensities in such violence, that it is impossible not to yield to them. It bears a striking re- semblance to vice, which is said to consist in an undue excitement of the pas- sions and will, and in their irregular or crooked actions leading to crime. It is therefore to be received with the utmost scrutiny. It is not generally ad- mitted in legal tribunals as a species of insanity which relieves from responsi- bility for crime, and it ought never to be admitted as a defence, until it is shown that these propensities exist in such violence, as to subjugate the intellect, control the will, and render it impossible for the party to do otherwise than yield. Where its existence is fully established, this species of insanity relieves (s) The charge was oral, having been reported by the present writer, and but hastily revised by the judge himself, which may account for the want of literal exact- ness in this and other expressions. (ss) Com. v. Mosler, 4 Barr, 266. . 4 § 55] RESPONSIBILITY FOR CRIME. [BOOK I. from accountability to human laws. But this state of mind is not to be pre- sumed without evidence, nor does it usually occur without some premonitory Symptoms indicating its approach.’’(¢) In Ohio, it has been laid down, though with much hesitation, “that there (t) The same view was, some years after, repeated by the same enlightened and able judge; Lewis Cr. Law, 404; and by Judge Edmonds (2 Am. Jour. of Ins.): Judge Whiting (Freeman’s Trial—Pamph.). In 1858,in John Freeth’s case, tried before the Philadelphia Oyer and Terminer, Judge Ludlow charged the jury partly as follows :— “ Besides the kinds of insanity to which I have already referred, and which strictly speaking affect the mind only, we have moral or homicidal insanity, which seems to be an irresistible inclination to kill, or to commit some other particular offence. We are obliged by the force of authority to say to you, that there is such a disease known to the law as homicidal insanity ; what it is, or in what it consists, no lawyer or judge has ever yet been able to explain with precision; physicians, especially those having charge of the insane, gradually, it would seem, come to the conclusion, that all wicked men are mad, and many of the judges have so far fallen into the same error as to render it possible for any man to escape the penalty which the law affixes to crime. “We do not intend to be understood as expressing the opinion that in some instances human beings are not afflicted with a homicidal mania, but we do intend to say that a defence consisting exclusively of this species of insanity, has frequently been made the means by which a notorious offender has escaped punishment. What, then, is that form of disease, denominated homicidal mania, which will excuse one for having committed a murder ? “Chief Justice Gibson calls it, ‘that unseen ligament pressing on the mind, and drawing it to consequences which it sees but cannot avoid, and placing it under a coer- cion which, while its results are clearly perceived, is incapable of resistance’— an irresistible inclination to kill.’ “Tf by moral insanity is to be understood only a disordered or perverted state of the affections or moral powers of the mind, it cannot be too soon discarded as affording any shield from punishment for crime; if it can be truly said that one who indulges in violent emotions, such as remorse, anger, Shame, grief, and the like, is afflicted with homicidal insanity, it will be difficult, yes, impossible, to say where sanity ends and insanity begins; for, by way of illustration, the man who is lashed into fury by a fit of anger is in one sense insane. ; ‘As a general rule it will be found that instances are rare of cases of homicidal insanity occurring wherein the mania is not of a general nature, and results in a desire to kill any and every person who may chance to fall within the range of the maniac’s malevolence; as it is general, so also is it based upon ¢maginary and not real wrongs ; if it is directed against a particular person (as is sometimes the case), then also the cause of the act will generally be imaginary; when, therefore, the jury find from the evidence that the act has been the result of an imaginary but real wrong, they will take care to examine with great caution into the circumstances of the case, so that with the real. wrong, they may not also discover revenge, anger, and kindred emotions of the mind to be the real motive which has occasioned the homicidal act. ‘* Orfila has said, ‘that the mind is always greatly troubled when it is agitated by anger, tormented by an unfortunate love, bewildered by jealousy, overcome by despair, haunted by terror, or corrupted by an unconquerable desire for vengeance. Then, as is commonly said, a man is no longer master of himself, his reason is affected, his ideas are in disorder, he is like a madman. But in all these cases a man does not lose his knowledge of the real relations of things; he may exaggerate his misfortune, but this misfortune is real, and if it carry him to commit a criminal act, this act is perfectly well-motived.’ ‘The man who has a clear conception of the various relations of life, and the real relation of things, is not often afflicted with insanity of any description. He may become angry, and in a fit of temper kill his enemy, or even his friend, but this is not, and I hope never will be, called in courts of justice insanity. Again, one who is really driven on by an uncontrollable impulse to the commission of a crime, will be able to show its ‘contemporaneous existence evinced by present circumstances, or the exist- ence of an habitual tendency developed in particular cases, and becoming in itself a second nature,’ and ought further to show that the mania ‘was habitual, or that it had evinced itself in more than one instance.’ “Chief Justice Lewis has said that moral insanity ‘ bears a striking resemblance to . vice;’ and further, ‘it ought never to be admitted as a defence until it is shown that these propensities exist in such violence as to subjugate the intellect, control the will, and render it impossible for the party to do otherwise than yield.’ And again, ‘this 46 BOOK I.] HOMICIDAL MANIA. [$ 55 is no authority for holding that mere moral insanity, as it is sometimes called, exonerates from responsibility. Chief Justice Shaw’s charge in Abner state of mind is not to be presumed without evidence, nor does it usually occur without some premonitory symptoms indicating its approach.’ ‘Gentlemen of the jury, we say to you, as the result of our reflections on this branch of the subject, that if the prisoner was actuated by an irresistible inclination to kill, and was utterly unable to control his will, or subjugate his intellect, and was not actuated by anger, jealousy, revenge, and kindred evil passions, he is entitled to an acquittal, provided the jury believe that the state of mind now referred to has been proven to have existed, without doubt, and to their satisfaction.” —Am. Journ. of Insan., vol. xv. p. 303. In Huntington’s case, the defendant was tried in New York, in 1858, for forgery. Judge Capron charged the jury partly as follows :— “The law, as at present administered, regards insanity, whether general or partial, as a derangement of the mind, the intellect, the reasoning and appreciating principle, the spring of motives and passions. To constitute a complete defence, insanity, if partial, must be such in degree as wholly to deprive the accused of the guide of reason in regard to the act with which he is charged, and of the knowledge that he is doing wrong in committing it. If, though somewhat deranged, he is yet able to distinguish right from wrong in the particular case in which crime is imputed to him, and to know that he is doing wrong, the act is criminal in law, and he is liable to punishment. But it is insisted for the prisoner that insanity, either general or partial, may exist, and the subject be totally unable to control his actions, while his intellect, or knowing and reasoning powers, suffer no notable lesion; it is claimed that persons thus afflicted may be capable of reasoning or supporting an argument on any subject within their sphere of knowledge. * * * * This afiliction has received the name of Moral Insanity, because the natural feelings, affections, inclinations, temper, or moral dispo- sitions, only are perverted, while the mind, the seat of volition and motive, remains unimpaired. I will not positively assert that this theory is not sound: it may be reconcilable with moral responsibility for human conduct; but Iam not reluctant to confess my own mental inability to appreciate the harmony between the two proposi- tions, if it exist.’’ Under this charge the prisoner was found guilty, and sentenced to the State prison. So in Spear’s case (Am. Journ. for Insan., p. 218), Judge Allen told the jury that there must be evidence, in order to acquit, of “a lesion of the intellect and reasoning powers, or of some derangement or disease affecting the mind and judgment.” (Post, § 198.) Daniel E. Sickles was tried in the U. 8. Circuit Court for the District of Columbia, in 1859, for the murder of Philip B. Key. The defence was mania, produced by the defendant discovering an adulterous connection between his wife and the deceased. The following statement of the legal points adjudicated is taken from Elwell’s Mal- practice, p. 391 :— } “Mr. Brady claimed that the immediate circumstances attending the seduction of Mr. Sickles’ wife, and the death of Key, were of so atrocious a nature as to overwhelm the mind of Sickles instantaneously, and thus render him irresponsible for the crime of murder. He therefore drew up the following propositions, and requested the court to embody them in its charge to the jury :— “¢], If, from the whole evidence, the jury believe that Mr. Sickles committed the act, but at the time of doing so was under the influence of a diseased mind, and was really unconscious that he was committing a crime, he is not in law guilty of murder. “<¢2. If the jury believe that from any predisposing cause the prisoner’s mind was impaired, and at the time of killing Mr. Key he became, or was mentally incapable of governing himself in reference to Mr. Key, as the debaucher of his wife, and at the time of committing said act was, by reason of such cause, unconscious that he was committing a crime as to said Mr. Key, he is not guilty of any offence whatever. “¢3, It is for the jury to say what was the state of the prisoner’s mind as to the capacity to decide upon the criminality of the particular act in question—the homi- cide—at the moment it occurred, and what was the condition of the parties respectively as to being armed or not at the same moment. These are open questions for the jury, as are any other questions which may arise upon the consideration of the evidence, the whole of which is to be taken into view by the jury. “¢4, The law does not require that the insanity which absolves from crime should exist for any definite period, but only that it exists at the moment when the act oc- curred with which the accused stands charged. _ “¢5. If the jury have any doubt as to the case, either in reference to the homicide or the question of sanity, Mr. Sickles should be acquitted.’ : 4 § 55] RESPONSIBILITY FOR CRIME. [BOOK I. Rodger’s case, and Judge Birchard’s charge in Clark’s case, 12 Ohio, 424, are quite as favorable to the defence of insanity as the authorities warrant. I “These propositions were argued at great length by counsel, especially by Mr. Brady, who contended that the great sorrow that had fallen upon Mr. Sickles, had, in fact, dethroned his intellect, and, for the moment, he was not accountable for what he did. CrawrorD, J., charged as follows on these propositions :— ‘¢<¢The court is asked to give to the jury certain instructions, whether on the part of the United States or on the defence. The first instruction asked for by the United States, embodies the law of this case on the particular branch of it to which it relates, and is granted with some explanatory remarks as to insanity, with a reference to which the prayer closes. A great English judge has said, on the trial of Oxford, who shot at the Queen of England, “ That if the prisoner was laboring under some control- ling disease which was, in truth, the acting power within him which he could not resist, then he will not be responsible.”” And again: “The question is, whether he was laboring under that species of insanity which satisfies you that he was quite un- aware of the nature, character, and consequences of the act he was committing, or, in other words, whether he was under the influence of a diseased mind, and was really unconscious at the time he was committing the act that that was acrime. A man is not to be excused from responsibility if he has capacity and reason sufficient to enable him to distinguish between right and wrong as to the particular act he is doing; a knowledge and consciousness that the act he is doing is wrong and criminal, and will subject him to punishment. In order to be responsible, he must have sufficient power of memory to recollect the relation in which he stands to others, and in which others stand to him; that the act he is doing is contrary to the plain dictates of justice and right, injurious to others, and a violation of the dictates of duty. On the contrary, although he may be laboring under a partial insanity, if he still understands the nature and character of his act and its consequences, if he has a knowledge that it is wrong and criminal, and a mental power sufficient to apply that knowledge to his own case, and to know that if he does the act, he will do wrong and receive punishment, such partial insanity is not sufficient to exempt him from responsibility for criminal acts.”” Now we come to those asked on the part of the defence, the first of which is in these words :— . “¢TIn reply to the ninth instruction, the court responds thus: “It is for the jury to say what was the state of Mr. Sickles’ mind as to the capacity to decide upon the criminality of the homicide, receiving the law as given to them in relation to the degree of insanity, whether it will or will not excuse, they (the jury) finding the fact of the existence or non-existence of such degree of insanity.” “¢The tenth prayer reads thus: ‘‘The law does not require that the insanity which absolves from crime should exist for any definite period, but only that it exist at the moment when the act occurred with which the accused stands charged.” That in- struction is granted. The time when the insanity is to operate is the moment when the crime charged upon the party was committed, if committed at all. The eleventh and last instruction asked reads this way: ‘“‘If the jury have any doubt as to the case, either in reference to the homicide or question of insanity, Mr. Sickles should be acquitted.” “¢This instruction, as I mentioned in referring to prayer four of the United States, will be answered in conjunction with it. “ “Tt does not appear to be questioned that if a doubt is entertained by the jury, the prisoner is to have the benefit of it. As to the sanity or insanity of the prisoner at the moment of committing the act charged, it is argued by the United States that every man being presumed to be sane, the presumption must be overcome by evidence satis- factory to the jury that he was insane when the deed was done. ‘““«This is not the first time this inquiry has engaged my attention. The point was made and decided at the June Term, 1858, in case of the United States v. Devlins, when the court gave the following opinion, which I read from my notes of the trial: “This prayer is based on the idea that the jury must be satisfied, beyond all reason- able doubt, of the insanity of the party for whom the defence is set up; precisely as the United States are bound to prove the guilt of a defendant to warrant a conviction. I am well aware, and it has appeared on this argument, that it has been held by a court of high rank and reputation that there must be a preponderance of evidence in favor of the defence of insanity to overcome the presumption of law that every killing is a murder; and that the same court has said that if there is an equilibrium, includ- ing, I suppose, the presumption mentioned of evidence, the presumption of the de- fendant’s innocence makes the preponderance in his favor.” ‘““¢ Whether a man is insane or not, is a matter of fact; what degree of insanity will relieve him from responsibility is a matter of law, the jury finding the fact of the 48 BOOK I.] HOMICIDAL MANIA. [$ 57 will not say that they are more so; for, rightly understood, they do not convey the idea that mere moral insanity constitutes a defence.’’ (¢¢) § 56. In all cases where clear proof is not presented of the existence of such a malady—difficult though such proof be to secure—it is important to keep in mind the striking observations of Lord Brougham, when the question was in discussion in the House of Lords. ‘‘With respect to the point, of a person being an accountable being, that was, an accountable being to the law of the land, a great confusion had pervaded the minds of some persons whom he was indisposed to call reasoners, who considered accountability in its moral sense, as mixing itself up with the only kind of accountableness with which they, as human legislators, had to do, or of which they could take cognizance. He could conceive of the case of a human being of a weakly constituted mind, who might by long brooding over real or fancied wrongs, work up so perverted a feeling of hatred against an individual that danger might occur. He might not be deluded as to the actual existence of injuries he had received, but he might grievously and grossly exaggerate them, and they might so operate upon a weakly framed mind and intellect as to produce crime. He could conceive that the Maker of that man, in his infinite mercy, having regard to the object of his creation, might deem him not an object for punishment. But that man was accountable to human tribunals in a totally different sense. Man punished crime for the purpose of practically deterring others from offending, by committing a repetition of the like act. It was in that sense only that he had anything to do with the doctrine of accountable and not accountable. He could conceive a person whom the Deity might not deem accountable, but who might be perfectly accountable to human laws.’’(w) § 57. Chief Justice Hornblower, it is true, in a charge, which bears the impress of his single authority, not having been reviewed by the court in bane, took still more decided ground, involving an emphatic disclaimer of moral insanity 7n foto. At the same time he rejects in a manner quite unex- ampled for its summariness, all the old tests, and reduces the inquiry to a point which, after all, leaves the widest margin. ‘In my judgment, the true question to be put to the jury is, whether the prisoner was insane at the time of committing the act; and in answer to that question there is little danger degree too. Under the instruction of the court, murder can be committed only by a sane man. Everybody is presumed to be sane who is charged with a crime, but when evidence is adduced that a prisoner is insane, and conflicting testimony makes a ques- tion for the jury, they are to decide it like every other matter of fact, and if they should say or conclude that there is uncertainty, that they cannot determine whether the defendant was or is not so insane as to protect him, how can they render a verdict that a sane man perpetrated this crime, and that no other can? “ ¢ Nor is this plain view of the question unsupported by authority. In the case of the Queen v. Ley, in 1840, Lewin’s C. C., p. 239, on a preliminary trial to ascertain whether a defendant was sufficiently sane to go before a petit jury on an indictment, Hutwock, B., said to the jury: “If there be a doubt as to the prisoner’s sanity, and the surgeon says it is doubtful, you cannot say he is in a fit state to be put on trial. This opinion was approved in the People v. Freeman, vol. 4, Denio’s Report, p. 9. This is a strong case, for the witness did not say the prisoner was insane, but only that it was doubtful whether it was so or not. The humane, and, I will add, just doctrine, that a reasonable doubt should avail a prisoner, belongs to a defence of in- sanity, as much, in my opinion, as to any other matter of fact.’” (tt) Thurman, J., Farrar v. State, 2, Ohio St. R. 54; see Warden’s Forensic View, p- 498. (uw) Hans. Par. Deb. saa 728. 9 § 59] RESPONSIBILITY FOR CRIME. [BOOK I. of a jury’s giving a negative answer, and convicting a prisoner who is proved to be insane on the subject matter relating to or connected with the criminal act, or proved to be so far and so generally deranged as to render it difficult, or almost impossible, to discriminate between his sane and insane acts.’’(v) Had the most liberal doctrine of the psychologists been given instead of this, the jury could hardly have been allowed greater latitude. § 58. It is important not to confound the moral or impulsive insanity re- cognized by the courts with the mania sine delirio of Pinel. An analysis of the cases will show, it is submitted, that in all the instances where this species of insanity is admitted as a defence, there was mental unsoundness either proved or presumed. The strongest instance is where Judge Story once refused to allow the conviction of a young woman who in a fit of puerperal mania threw her infant overboard, though she was perfectly conscious of the enormity of the act.(w) But here there was delirium as well as homicidal impulse. § 59. The consideration of the psychological soundness of the doctrine of manta sine delirio, is reserved to a future section.(7) It will be there shown that among psychologists, as well as those who have had the most enlightened experience in the management of the insane, there is such a conflict of opinion as to the existence of this mania as to deprive the rendition of experts in this respect of any authoritative weight in courts of justice. On one point, how- ever, all persons versed in the treatment of the insane agree, and this is a pro- test against the right and wrong test. But the difference in this respect between medical and legal authority is not so great as at first appears. If the courts should be supposed to hold that a perception that the act is wrong makes a lunatic responsible, then it is admitted that the conflict is irrecon- cilable. But if the language of the more recent decisions be closely scanned, it will be seen that the test applied may be resolved into this: is the party so free from delusion or perversion as to be able to take a sane view of the right and wrong of the particular act? He may know that it is what society calls wrong, and vet he may believe himself impelled to the act by sufficient counter considerations. In all this, on his own false premises, he may reason soundly. He may give every proof (e. g. by concealment or subterfuge) of what would be popularly called a knowledge of right and wrong. All this, however, will not in itself confer responsibility. He may nevertheless be insane. (xx) (v) State v. Spencer, 1 Zabriskie, 196. (w) U.S. v. Hewson, 7 Bost. Law Rep. 361. (x) Post, § 177, &c. (xx) In New York, in Freeman’s case, Beardsley, C. J., said, “ That a state of gen- eral insanity, the mental powers being wholly perverted or obliterated, would neces- sarily preclude a trial; for a being in that deplorable condition can make no defence whatever. Not so, however, where the disease is partial, and confined to one subject, other than the imputed crime, and contemplated trial. A person in this condition may be fully competent to understand his situation in respect to the alleged offence, and to conduct his defence with discretion and reason. Of this the jury must judge, and they should be instructed, that if such is found to be his condition, it will be their duty to pronounce him sane. In the case at bar, the court professed to furnish a single criterion of sanity, that is, a capacity to distinguish between right and wrong. This, as a test of insanity, is by no means invariably correct ; for, while a person has avery just perception of the moral qualities of most actions, he may, at the same time, as to some one in particular, be absolutely insane, and consequently as to this be incapable. of judging accurately between right and wrong. If the delusion extends to the alleged crime, or the contemplated trial, the party manifestly is not in a fit con- 50 BOOK I.] HOMICIDAL MANIA, [$ 60 § 60. To the illustrations adduced by others of the coexistence of a know- ledge that an act was wrong with its commission under circumstances which confer entire irresponsibility, the present writer may be permitted to add one within the range of his own experience. A man named John Billman, who had been sent to the Eastern Penitentiary of Pennsylvania for horse stealing, dition to make his defence, however sound his mind may be in other respects ; still the insanity of such a person being only partial, not general, a jury, under a charge like that given by the court below on this case, might find the prisoner sane, for in some respects he would be capable of distinguishing between right and wrong. Had the instruction been, that the prisoner was to be deemed sane, if he had a knowledge of right and wrong in respect to the crime with which he stood charged, there would have been but little fear that the jury could be misled, for a person who justly appre- hends the nature of a charge made against him, can hardly be supposed to be inca- pable of defending himself in regard to it inarational way. At the same time it would be well to impress distinctly on the minds of jurors, that they are to gauge the mental capacity of the prisoner, in order to determine whether he is so far sane as to be competent in mind to make his defence, if he has one; for, unless his faculties are equal to that task, he is not in a fit condition to be put on histrial. For the purpose of such a question, the law regards a person thus disabled by disease, as non compos mentis, and he should be pronounced unhesitatingly insane, within the true extent and meaning of this statute. ‘* Where insanity is interposed as a defence to an indictment for an alleged crime, the inquiry is always brought down to the single question of a capacity to distinguish between right and wrong at the time when the act was done. In such case, the jury should be instructed that, ‘it must be clearly shown that at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong. The mode of put- ting the latter part of the question to the jury, on these occasions, has generally been whether the accused at the time of doing the act, knew the difference between right and wrong; which mode, though rarely, if ever, leading to any mistake with the jury, is not deemed so accurate, when put generally and in the abstract, as when put with reference to the party’s knowledge of right and wrong in respect to the very act with which he is charged.’ This is the rule laid down by all the English judges but one, in the late case of McNaghton, while pending in the House of Lords. (10 C. & F. 210.) In the case of Oxford, Lord Denman, C. J., charged the jury in this manner: ‘The question is, whether the prisoner was laboring under that species of insanity which satisfies you that he was quite unaware of the nature or character and consequences of the act he was committing ; or, in other words, whether he was under the influence of a diseased mind, and was really unconscious, at the time he was committing the act, that it was a crime.’ The insanity must be such as to deprive the party charged with crime, of the use of reason in regard to the act done. He may be deranged on other subjects, but if capable of distinguishing between right and wrong in the par- ticular act done by him, he is justly liable to be punished as acriminal. Such is the undoubted rule of the common law on this subject. Partial insanity is not, by that law, necessarily an excuse for crime, and can only be so where it deprives the party of his reason in regard to the act charged to be criminal. Nor, in my judgment, was the statute on this subject intended to abrogate or qualify the common lawrule. The words of the statute are: ‘No act done by a person in a state of insanity can be pun- ished as an offence.’ The clause is very comprehensive in its terms, and at first blush, might seem to exempt from punishment every act done by a person who is insane upon any subject whatever. This would, indeed, be a mighty change in the law, as it would afford absolute impunity to every person in aninsane state, although his disease might be confined to a single and isolated subject. Ifthis is the meaning of the statute, jurors are no longer to inquire whether the party was insane ‘in respect to the very act with which he is charged,’ but whether he was insane in regard to any act or subject whatever; and if they find such to have been his condition, render a verdict of not guilty. But the statute is not so understood by me. I interpret it as I should have done if the words had been ‘no act done by a person in a state of insanity in respect to such act, can be punished as anoffence.’ The act, in my judgment, must be an insane act, and not merely the act of aninsane person. This was plainly the rule before the statute was passed, and although that took place more than sixteen years since, I am not aware that it has, at any time, been held or intimated by. any judicial tribunal, that the statute had abrogated, or in any respect modified, this principle of the common law.”” (Freeman v. People, 4 Denio, p. 27.) a § 61] RESPONSIBILITY FOR CRIME. [BOOK I. murdered his keeper under circumstances of great brutality, and yet with so much ingenuity as to elude suspicions of his intentions, and almost conceal his flight. He hung a noose on the outside of the small window which is placed in the door of the cells to enable persons outside to look in. He then induced the keeper, in order to look at something on the floor directly at the foot of the door, to put his head entirely through. The noose was then drawn, and but for an accident, the man would have been suffocated. Notwithstanding this attempt, the same keeper was inveigled into the cell alone, a few days after- wards, on the pretence of Billman being sick, and was there killed by a blow on the head with a piece of washboard. Billman undressed him; changed clothes with him; placed him on the bed in such a position as to induce the general appearance of his being there himself; traversed in his assumed garb, the corridor with an unconcerned air; addressed an apparently careless question to the gate-keeper, and sauntered listlessly down the street on which the gate opened. He was, however, soon caught; but his insanity was so indisputable, that the prosecuting authorities, after having instituted a careful and skilful medical examination, became convinced of his irresponsibility, and united upon the trial in asking a verdict of acquittal on the ground of insanity. He was then remanded to confinement, under the Pennsylvania practice; and some time afterwards, when in a communicative mood, disclosed the fact of his having several years back murdered his father under circumstances which he detailed with great minuteness and zest. Inquiries were instituted, and it was found that he had told the truth. The father had been found strangled in his bed; the son had been arrested for the crime; but so artfully had he contrived the homicide, that he was acquitted through an alibi, got up by means of a rapid ride at midnight, and a feigned sleep in a chamber, into which he had clambered by a window. Here, then, was not only a sense of guilt, but a keen appreciation of the consequences of exposure, and an abundance of evi- dence of long harbored intention and intelligent design. A still more emphatic illustration of the same sense of accountability among lunatics, as a class, is to be found in an anecdote related by Dr. Winslow.(a) When Martin set York Minster on fire, a conversation took place among the inmates of a neighboring lunatic asylum, having reference to this general topic. The question was whether Martin would be hanged, when, in the course of the discourse, one madman announced to the others a position, in which they all acquiesced, that Martin would not be hanged, because he was ‘‘one of them- selves.” It certainly will not be maintained that a consciousness of the legal relations of crime, such as this remark exhibited, confers responsibility where it does not otherwise exist. § 61. Perhaps the conflicting authorities which have been noticed above may be thus reconciled :— Moral insanity is a defence to an indictment, when 1. It is connected with and depends on a cognate mental derangement, which may be either substantively proved, or implied from the intensity of the moral disorder.(b) i (a) Lectures, &c. 108. (b) See post, § 178, &c. BOOK I.] CRIMINAL RESPONSIBILITY OF DRUNKARDS. [$ 62 2. It is accompanied by such an exaggerated and morbid view of the par- ticular act as to make the party incapable of a healthy judgment of right and wrong in reference to that act. It is not necessary that the party should be ignorant that the particular act was wrong. He may know this, and yet his judgment may be so perverted by morbid counter-considerations as to pre- vent him from forming an accurate moral judgment on the premises. 3. It involves an impulse which for the time destroys free agency. When, however, the alleged insanity consists in nothing more than a strong inclination to commit a wrong act, which the party understands to be wrong, and when there is no mental derangement by which the relations of this act are confused, then this is mere badness or malice, which, when connected with an overt act, makes the party criminally responsible. IV. How INTOXICATION AFFECTS RESPONSIBILITY FOR CRIME. The law in this connection may be summed up as follows :— Ist. Insanity produced by delirium tremens affects responsibility in the same way as insanity produced by any other cause. 2d. Insanity immediately produced by intoxication does not destroy respon- sibility if the patient, when sane and responsible, makes himself intoxicated. 3d. While drunkenness per se is no defence to the fact of guilt, yet when the question of intent or premeditation is concerned, it becomes a material item of consideration. Ist. Insanity produced by delirium tremens affects the responsibility in the same way as insanity produced by any other cause. § 62. If a man who, laboring under delirium tremens, kill another, is made responsible, there is scarcely any species of insanity which, on like principles, would not be subjected to the severest penalties of criminal law. ‘It may be the immediate effect,’ says Dr. Ray,(c) ‘‘of an excess, or series of excesses, in those who are not habitually intemperate, as well as in those who are; but it most commonly occurs in habitual drinkers, after a few days’ total abstinence from spirituous liquors. It is also very liable to occur in this latter class when laboring under other diseases, or severe external injuries, that give rise to any degree of constitutional disturbance. The approach of the disease is generally indicated by a slight tremor and faltering of the hands and lower extremities, a tremulousness of the voice, a certain restlessness and sense of anxiety which the patient knows not how to describe or account for, disturbed sleep, and impaired appetite. These symptoms having continued two or three days, at the end of which time they have obviously increased in severity, the patient ceases to sleep altogether, and soon becomes delirious. At first the delirium is not constant, the mind wandering during the night, but, during the day, when its attention is fixed, capable of rational discourse. It is not long, (c) Med. Jur. 438. 53 § 63] CRIMINAL RESPONSIBILITY OF DRUNKARDS. [BOOK I. however, before it becomes constant, and constitutes the most prominent feature of the disease. Occasionally the delirium occurs at an earlier period of the disease, and may even be the first symptom of any disorder. This state of ‘watchfulness and delirium continues three or four days, when, if the patient recover, it is succeeded by sleep, which at first appears in uneasy and irregular naps, and lastly in long, sound, and refreshing slumbers. When sleep does not supervene about this period, the disease is fatal; and whether subjected to medical treatment or left to itself, neither its symptoms nor its duration are materially modified. The character of the delirium in this disease is peculiar, bearing a stronger resemblance than any other form of mental derangement to dreaming. It would seem as if the dreams which disturb and harass the mind during the imperfect sleep that precedes the explosion of the disease continue to occupy it when awake, being then viewed as realities, instead of dreams. The patient imagines himself, for instance, to be in some peculiar situation, or engaged in certain occupations, according to each individual’s habits and profession; and his discourse and conduct are conformed to this de- lusion, with this striking peculiarity, however, that he is thwarted at every step, and is constantly meeting with obstacles that defy his utmost efforts to remove. Almost invariably the patient manifests, more or less, feelings of suspicion or fear, laboring under continual apprehension of being made the victim of sinister designs and practices. He imagines that certain people have conspired to rob or murder him, and insists that he can hear them in an adjoining apartment arranging their plans and preparing to rush into his room; or that he is in a strange place, where he is forcibly detained, and prevented from going to his own home. One of the most common hallucinations is to be constantly seeing devils, snakes, vermin, and all manner of unclean things around him and about him, and filling every nook and corner of his apartment. The extreme terror which these delusions often inspire produces in the countenance an unutterable expression of anguish, and, in the hope of escaping from his fancied tor- mentors, the wretched patient endeavors to cut his throat or jump from the window. Under the influence of these terrible apprehensions he sometimes murders his wife or attendant, whom his disordered imagination identifies with his enemies, though he is generally tractable, and not inclined to be mis- chievous. After perpetrating an act of this kind, he generally gives some illusive reason for his conduct, rejoices in his success, and expresses his regret at not having done it before.”’(cc) § 63. As far as concerns temporary incapacity, therefore, deliriwm tremens acts in the same way as any other delirium, and when complete, destroys the moral as well as the intellectual responsibility. The only question, therefore, is whether there is anything in the sowrce from which it is derived which re- quires that it should be exempted from the general rule by which delirium forms a good defence to an indictment for a criminal offence. In the dicta of one or two of the older law writers, this exception is sought to be sustained on the ground that a drunkard, in every stage, is a voluntary demon, and that he can no more use his consequent mania as a defence, than can the man who (cc) See an interesting case of Oinomania in 8 Amer. Journ. of Insan. 3. 54 BOOK I.] DELIRIUM TREMENS. WHEN A DEFENCE, [S$ 65 kills another by a sword allege that it was the sword, and not himself, that was the guilty agent. But to this the answer is threefold: (1) that delirium tremens is not the intended result of drink in the same way that drunken- ness is; (2) that there is no possibility that deliriwm tremens can be volun- tarily generated in order to afford a cloak for a particular crime; (3) that, so far as original cause is concerned, it is not peculiar in being the offspring of indiscretion or guilt, for such is the case with almost every other species of insanity. These points scarcely need to be expanded. The fact is, delirium tremens runs the same course with most of the other classes of insanity known in the criminal courts. It is the result, like most other manias, of prior vicious indulgence; but it differs from intoxication in being shunned rather than courted by the patient, and in being incapable of voluntary assumption for the purpose of covering guilt. § 64. Reason, therefore, undoubtedly teaches us that a person who is inca- pacitated from moral and intellectual agency, by reason of delirium tremens; is irresponsible; and such is the law, as decided in repeated instances. (d) Thus, in the leading American case, Story, J., declared criminal responsibility not to attach where the delirium is the “remote consequence” of voluntary intoxication, “ superinduced by the antecedent exhaustion of the party, arising from gross and habitual drunkenness. However criminal,’’ he proceeded to say, ‘in a moral point of view, such an indulgence is, and however justly a party may be responsible for his acts arising from it, to Almighty God, human tribunals are generally restricted from punishing them, since they are not the acts of a reasonable being. Had the crime been committed when Drew (the defendant) was in a fit of intoxication, he would have been liable to be con- victed of murder. As he was not then intoxicated, but merely insane from an abstinence from liquor, he cannot be pronounced guilty of the offence. The law looks to the immediate, and not to the remote cause; to the actual state of the party, and not to the causes which remotely produced it. Many species of insanity arise, remotely, from what, in a moral view, is a criminal neglect or fault of the party ; as from religious melancholy, undue exposure, extrava- gant pride, ambition, &e. Yet such insanity has always been deemed a suf- ficient excuse for any crime done under its influence.” § 65. In a still earlier case of at least equal authority, the court told the jury that if they “should be satisfied by the evidence, that the prisoner, at the time of committing the act charged in the indictment, was in such a state of mental insanity not produced by the immediate effects of intoxicating drinks, as not to have been conscious of the moral turpitude of the act, they should find him not guilty.”(e) And expressly to this very point is a more recent case, where a federal judge of high authority told the jury that if the defendant was ‘so far insane as not to know the nature of the act, nor whether it was wrong or not, he is not punishable, although such delirium tremens is pro- (d) U. §. v. Drew, 5 Mason, U. 8. Rep. 28; Bennett v. State, Mart. & Yerg. 133; Cornwell v. State, ibid. 14; Maconnehey v. State, 5 Ohio (N. 8.) 77, Carter v. State, 12 Texas, 500; R. v. Thomas, 8 C. & P. 820; R. v. Meakin, 7 C. & P. 299; Rennie’s case, 1 Lew. C. C. 76; 1 Hale, 32; 1 Rus. on Cr. 7; 4 Black. Com. 26. (e) U.S. v. Clarke, 2 Cranch, C. C. R. 158. 59 § 65] CRIMINAL RESPONSIBILITY OF DRUNKARDS. [BOOK I. duced by the voluntary use of intoxicating liquors.”(/) When delirium tre- (f) U.S. v. McGlue, 1 Curtis,C.C.R.1. This case we give in full :— ’ The prisoner, who was second officer on board the barque Lewis, was indicted for the murder of the first officer of that vessel while on board. The defence was insanity. The other facts appear in the charge of the court. Curtis, J. The prisoner is indicted for the murder of Charles A. Johnson. It is incumbent on the government to prove the truth of every fact in the indictment necessary in point of law to constitute the offence. These facts are in part contro- verted, and in part, as I understand the course of the trial, not controverted ; and it will be useful to separate the one from the other.. That there was an unlawful killing of Mr. Johnson ; that the mortal wound was inflicted by the prisoner at the bar; that this wound was given and the death took place on board of the barque Lewis ; that Johnson was the first, and the prisoner the second officer of that vessel at the time of the occurrence ; that the vessel at that time was either on the high seas, as is charged in one count, or upon waters within the dominion of the Sultan of Muscat, as is charged in another count; and that the prisoner was first brought into this district after the commission of the alleged offence—do not appear to be denied; and the evidence is certainly sufficient to warrant you in finding all these facts. It is not upon a denial of either of these facts that the defence is rested, but upon the allegation by the defendant, that at the time the act was done he was so far insane as to be criminally irresponsible for his act. And this brings you to consider the remaining allegation in the indictment which involves this defence. It is essential to the crime of murder that the killing should be from what the law denominates malice aforethought, and the government must prove this allegation. ‘Now, if you believe the evidence, there can be no question, that the killing was malicious, provided the prisoner was at the time in such a condition as to be capable, in law, of malice. If he was then so insane that the law holds him irresponsible, it deems him incapable of entertaining legal malice; and one main inquiry in this case is, whether the prisoner, when he struck the blow, was so far insane as to be held by the law irresponsible for intentionally killing Mr. Johnson. Some observations have been made by the counsel of each side respecting the cha- racter of this defence. On the one side it is urged that the defence of insanity has become of alarming frequency, and that there is reason to believe that it is resorted to by great criminals to shield them from the just consequences of their crimes ; that there exist in the community certain theories concerning what is called moral insanity, brought forward on trials of this kind, tending to subvert the criminal law, and render crimes likely not to be punished. On the other hand, the inhumanity and injustice of holding him guilty of murder who was not at the time of the act a reasonable being, have been brought before you in the most striking forms. These observations of the counsel on both sides are worthy of your attention, and their effect should be to cause you to follow steadily, carefully, and exactly, the rules of law upon this subject. The general question, whether the prisoner’s state of mind when he struck the blow was such as to exempt him from legal responsibility, is a question of fact for your decision. But there are certain rules of law which you are bound to apply, and the court, upon its responsibility, is to lay down; and these rules, when applied, will conduct you to the only safe decision. You will observe, then, that this defence of insanity is to be tested and governed by principles of law, and not by any loose general notions which may be afloat in the community, or even the speculations of men of science ; and I now proceed to state to you such of them as are applicable to this case. The first is, that the defendant must be presumed to be sane till his insanity is proved. Men, in general, are sufficiently sane to be responsible for their acts. To be irresponsible because of insanity is an exception to that general rule. And before any man can claim the benefit of such an exception, he must prove that he is within it. You will, therefore, take it to be the law, that the prisoner is not to be acquitted upon the ground of insanity, unless upon the whole evidence you are satisfied that he was insane when he struck the blow. The next inquiry is, What is meant by insanity? What is it which exempts from punishment, because its existence is inconsistent with a criminal intent? Clearly, it is not every kind and degree of insanity which is sufficient. There are, undoubtedly, persons of great general ability, filling important stations in life, who, upon some one subject, are insane. And there are others whose minds are such that the conclusions of their reason and the results of their judgment are very far from right. And others whose passions are so strong, or whose conscience, reason, and judgment are so weak, so perverted, that they may, in some sense, be denominated insane. But it is not the business of the law to inquire into these peculiarities, but solely whether the person accused was capable of having, and did havea criminal intent. If he had, it punishes 06 BOOK I.] DELIRIUM TREMENS. WHEN A DEFENCE. [$ 65 mens is set up as a defence, the prisoner must show that he was under a delirium him ; if not, it holds him dispunishable. And it supplies a test, by which the jury is to ascertain whether the accused be so far insane as to be irresponsible. That test is the capacity to distinguish between right and wrong as to the particular act with which he is charged. If he understands the nature of the act, if he knows that it is criminal, and that if he does it he deserves punishment, then he is not so far insane as to be exempt from responsibility. But if he is under such delusion as not to under- stand the nature of the act, and has not reason and judgment to know that he is deserving of punishment, then he is not responsible. This is the test which the law prescribes, and which you are to apply in the present case. It is asserted by the prisoner that when he struck the blow he was suffering under a disease known as delirium tremens. He has introduced evidence tending to prove his intemperate drinking of ardent spirits during several days before the time in question, and also certain effects of this intemperance. Physicians of great eminence, and particularly experienced in the observation of this disease, have been examined on both sides. They were not allowed to give their opinions upon the case; because the case, in point of fact, on which any one might give his opinion, might not be the case which you, upon the evidence, would find; and there would be no certain means of knowing whether it was so or not. It is not the province of an expert to draw infe- rences of fact from evidence, but simply to declare his opinion upon a known or hypo- thetical state of facts; and therefore the counsel on each side have put to the physi- cians such states of facts as they deem warranted by the evidence, and have taken their opinions thereon. If you consider that any of these states of fact put to the physicians are proved, then the opinions thereon are admissible evidence, otherwise they are not applicable to this case. And here I may remark, that although in general witnesses are held to state only facts, and are not allowed to give their opinions in a court of law, yet this rule does not exclude the opinions of those whose professions and studies, or occupations, have rendered them peculiarly skilful concerning parti- cular questions. We take the opinion of physicians in this case for the same reason that we resort to them in our own cases out of court, because they are believed to be better able to form a correct opinion upon a subject within the scope of their studies than men in general. But these opinions, though proper for your consideration, are, nevertheless, not binding on you against your own judgment, but should be weighed, and especially where they differ, compared by you, and such effect allowed to them as you think right. Besides these opinions, the physicians have also described to you the symptoms of the disease delirium tremens. They all agree that it is a disease of a very strongly marked character, and as little liable to be mistaken as any known in medicine. Dr. Bell says the symptoms are— “1. Delirium, taking the form of apprehensiveness on the part of the patient. He is fearful of something ; imagines demons and snakes around him. In attempting to escape, he will attack others as well as injure himself. But he is more apprehensive of receiving injury than desirous of inflicting it, except to escape. He is generally timid and irresolute, and easily pacified and controlled. “2. Sleeplessness. I believe delirium tremens cannot exist without this. “<3. Tremulousness, especially of the hands, but showing itself in the limbs and the tongue. “4, After a time sleep occurs, and reason thus returns; usually the sleep comes on in not less than three days, dating from the last sleep. At first it is broken; then this is followed by a profound sleep, lasting six or eight hours, from which the patient awakes sane.” Dr. Stedman, after describing its symptoms substantially as Dr. Bell did, says its access may be very sudden, and he has often known it first to manifest itself by the patients attacking those about them, regarding them as enemies; that a case may terminate in two days, and rarely lasts more than four days. Regarding these accounts of the symptoms of this disease, you will inquire whether the evidence proves that they existed in this case; and whether the previous habits and the intemperate use of ardent spirits, from which this disease springs, are shown; and whether the recovery of the prisoner corresponded with the course and termina- tion of the disease of delirium tremens as described by the physicians. It is not denied, on the part of the government, that the prisoner had drank intem- perately of ardent spirits during some days before the occurrence. But it is insisted, that he had continued to drink, down to a short time before the homicide; and that when he struck the blow it was in a fit of drunken madness. And this renders it necessary to instruct you concerning the law upon the state of facts which the prose- cutor asserts existed. Although delirium tremens is the result of intemperance, and therefore in some sense oT § 65] INTOXICATION NO DEFENCE, [BOOK I. at the time the act was perpetrated, there being no presumption of its exist- ence from the antecedent fits from which he has recovered.(//) is voluntarily brought on, yet it is distinguishable, and by the law is distinguished, from that madness which sometimes accompanies drunkenness. If a person suffering under delirium tremens is so far insane as to render him irre- sponsible, the law does not punish him for any crime he may commit. But if a person commits a crime while intoxicated, under the immediate influence of liquor, the law does punish him, however mad he may have been. It is no excuse, but rather an aggravation of his offence, that he first deprived himself of reason before he did the act. There would be no security for life or property if men could commit crimes with impunity, provided they would first make themselves drunk enough to cease to be reasonable beings. And, therefore, it is a very important inquiry in this case whether this homicide was committed while the prisoner was suffering under that marked disease of delirium tremens, or in a fit of drunken madness. If the prisoner while sane made himself intoxicated, and while intoxicated committed a murder by reason of insanity, which was one of the consequences of that intoxication, then he is responsible in point of law, and must be punished. This is as clearly the law of the land as the other rule, which exempts from punishment acts done under delirium tremens. It may sometimes be difficult to determine under which rule the accused comes. But it is the duty of the jury to ascertain from the evidence on which side this case falls, and to decide accordingly. It may be material for you to know on which party is the burden of proof in this part of the case. It is incumbent on the prisoner to satisfy you that he was insane when he struck the blow, for the law presumes every man to be sane till the contrary is proved. But if the contrary has been proved, the law does not presume that the insanity of the prisoner arose from any particular cause; and it is incumbent on the party which asserts that it did arise from a particular cause, and that the prisoner is guilty by law, because it arose from that cause, to make out this necessary element in the charge to the same extent as every other element in it. For the charge then assumes this form—that the prisoner committed a murder, for which, though insane, he is responsible, because his insanity was produced by and accompanied a state of intoxication. The government must satisfy you of these facts, which are necessary - to the guilt of the prisoner in point of law. If you are convinced that the prisoner was insane to such an extent as to render him irresponsible, you will acquit him, unless you are also convinced that his insanity was produced by intoxication, and accompanied that state; in which case you will find him guilty. The prisoner was acquitted. A note in the American Journal of Insanity, for July, 1856, says— “This distinction between delirium tremens and temporary madness, induced by intoxication, is laid down in The United States v. Drew, 5 Mason, 28 ; and (in England) in John Burroughs’ case, 1 Lewin, C. C. 75. In the latter case, Holroyd, J., said: ‘Drunkenness is not insanity, nor does it answer to what is termed an unsound mind, unless the derangement which it causes becomes fixed and continued by the drunkenness being habitual, and thereby rendering the party incapable of distinguishing between right and wrong.’ That mere drunkenness is no excuse for crime is very clearly settled by many decisions both in this country and in England. Cornwell v. The State, Mart. & Y., 147, 149; Burnet v. The State, 133, ib. ; The State v. Turner, 1 Wright’s Ohio, 30; The State v. Thompson, ib. 617; Schaller v. The State, 14 Missouri, 502; The State v. John, 8 Ired. 330; Pirtle v. The State, 9 Humph. 663; Kelly v. The State, 3 Smedes and M. 518; The United States v. Clarke, 2 Cranch, C. C. R.158. But though drunken- ness is not of itself a complete defence to crime, as insanity is, yet it may be admissible to the jury as evidence of the intent, in certain cases, with which the act was done. Thus in Pigman v. The State, 14 Ohio, 555, it was held, on an indictment for passing counterfeit money, knowing it to be counterfeit, that the drunkenness of the prisoner at the time of passing was proper for the consideration of the jury in determining whether he knew the bill to be counterfeit. See also, The State v. McCante, 1 Spears, 389 ; Pennsylvania v. Fall, Addison, 257; Swan v. The State, 4 Humph. 136; Pirtle v. The State, 9 ib. 570; Haile v. The State, 11 ib. 154.—Law Magazine.” (7) State v. Sewell, 3 Jones, Law (N. C.) 245. As to general presumption arising from prior insanity, see ante, § 33. 58 BOOK I.] INTOXICATION NO DEFENCE, [$ 67 2d. Insanity immediately produced by intoxication does not destroy re- sponsibility, where the patient when sane and responsible, made himself voluntarily intoxicated. § 66. Drunkenness, so long as it does not prostrate the faculties, cannot be distinguished from any other kind of passion. If the man who is maddened by an unprovoked attack upon his person, his reputation or his honor, be nevertheless criminally responsible—if hot blood form no defence to the fact of guilt—it would be a most extraordinary anomaly if drunkenness voluntarily assumed should have that effect, independently of all extraneous provocation whatever. If, as is pretended—or else there is no ground for the exception— drunkenness so incapacitates the reason as to make it at least partially incapable of distinguishing between right and wrong, or else so inflames the passions as to make restraint insupportable, then comes in the familiar principle that the man who voluntarily assumes an attitude or does an act which is likely to produce death in others, is responsible for the consequences, even though he had at the time no specific intentions to take the life of any one. Thus, if a man breaking an unruly horse wilfully ride him among a crowd of persons, the probable danger being great and apparent, or if a workman out of sport or mischief, slide a plank from the top of a roof into a crowded street, or if a manufacturer deliberately and knowingly leave in the cellar of an uninhabited house a keg of powder, and death ensue, it is murder at common law.(g) And so it must also be held that the steamboat captain who deliberately dashes his boat into a crowd of smaller craft, so that life is taken, is in like manner re- sponsible. 'There can be no question as to this. The man who voluntarily arms himself with weapons of destruction, and then throws them hap-hazard among the innocent or unoffending, without even the excuse of specific malice or provocation, is at least as dangerous as the assassin who picks out his vic- tim in advance. Against the last there may be some checks—against the first none. Caution may ward off the one, or innocence escape it, but to the other the most innocent and benevolent would be as likely to fall victim as the most malevolent. The mind in the last case may be inflamed with revenge—that ‘“‘Wild Justice,’ as Bacon calls it—which, though no defence, is yet capable of being reached by reason and averted by care. But in the former, the mo- tive is mere gross and sensual indulgence, and the blow cannot be restrained by strength, or avoided by unoffensiveness. § 67. The safety of the community, in fact, requires that this rule should be observed. Every murderer would drink to shelter his intended guilt. There never could be a conviction for homicide if drunkenness avoid responsi- bility.(gg) As it is, most of the premeditated homicides are committed under the stimulus of liquor. The guilty purpose is at first sedately conceived, but there are few men whose temperaments are so firmly knit as to enable them to enter a scene of blood, without first fortifying themselves for the task to be (g) See Wharton on Homicide, 45, where these points are fully established. (99) See post, § 92. 59 § 69] EFFECT OF INTOXICATION ON CRIME. [BOOK I. performed. ‘The head dreads the heart’s cowardice, and seeks to insure against it by drink. It will be found in fact that there is scarcely a case of violent homicide, in which it does not appear that the defendant thus strengthened his nerves for the execution of his guilty plan. If, therefore, drunkenness im- parts irresponsibility, there are not only but few convictions which have here- tofore taken place which are good, but there will be no convictions at all for the future. If the assassin will not take liquor to strengthen his nerves, he will to avoid conviction. There would be no species of deliberate homicide, under such a dispensation, that would not avoid punishment. It would be the indeliberate only that would be made responsible. § 68. The tenor of common and civil law authority to this effect is clear. Even the German text writers, who generally attenuate to so wide and thin a texture the doctrine of moral responsibility, do not undertake to treat drunken- ness as a defence. Sir E. Coke scarcely goes beyond the tenor of civil as well as of common law writers, when he says, ‘‘ As for a drunkard who is volun- tarvus demon, he hath, as has been said, no privilege thereby, but what hurt or ill soever he doth, his drunkenness doth aggravate it. Omne crimen ebrietas et incendit et detegit.”’(h) And although now drunkenness cannot be said to aggravate a crime in a judicial sense, yet it is well settled that it forms no defence to the fact of guilt. Thus Judge Story, in a case already cited, after noticing that insanity, as a general rule, produces irresponsibility, went on to say: ‘‘ An exception is, when the crime is committed by a party while in a fit of intoxication, the law allowing not a man to avail himself of the excuse of his own gross vice and misconduct, to shelter himself from the legal consequences of such crime.” Lord Hale says: ‘The third sort of mad- ness is that which is dementia affectata, namely drunkenness. This vice doth deprive a man of his reason, and puts many men into a perfect but temporary phrensy ; but by the laws of England, such a person shall have no privileges by his voluntarily contracted madness, but shall have the same judgment as if he were in his right senses.”’(7) And so Parke, B., a very authoritative English crown judge, said to a jury in 1837: ‘I must also tell you, that if a man makes himself voluntarily drunk, it is no excuse for any crime he may commit whilst he is so; he takes the consequences of his own voluntary act, or most crimes would go unpunished.’’(j) And Alderson, B., said in 1836: “Tf a man chooses to get drunk, it is his own voluntary act ; it is very different from madness which is not caused by any act of the person. That voluntary species of madness which it is in a party’s power to abstain from, he must answer for.”’(/) In harmony with this is the whole current of English authority. (Z) § 69. The law in this country is that drunkenness is no defence to the fac- tum of guilt; the only point about which there has been any fluctuation, being (Ah) Co. Litt. 247, a. (7) 1 Hale, 7; 4 Black. Com. 26; Wharton’s C. L. (3d edition) 92; 1 Gabbett, C. L. 9; and see a very learned article in 6 Law Rep. (N. 8.) 554. (j) R. v. Thomas, 7 C. & P. 817. (k) R. v. Meakin, 7 C. & P. 297, @ Burrow’s Case, 1 Lewin C. C. 75; Rennie’s case, 1 Lewin C. C. 76; 1 Russel on hits 60 BOOK I.] INTOXICATION AS A DEFENCE. [$ 69 the extent to which evidence of drunkenness is receivable to determine the ex- actness of the intent or the extent of deliberation. (m) (m) U. 8. v. Clarke, 2 Cranch C. C. R. 158; U. 8. v. M’Glue, 1 Curtis C. C. R.1; Kelley v. State, 3 Smedes & Mar. 518; Cornwall v. State, Mar. & Yer. 147; Pirtle v. State, 9 Humph. 663; State v. John, 8 Ired. 330; State v. Turner, 1 Wright, 30; Schaller v. State, 14 Missouri, 502; Wh. Cr. Law, § 40; Wh. on Homicide, 369. In Rogers’ case, which came up in 1858, before the New York Court of Appeals, the law was thus stated by Denio, J.: ‘ Wherea principle of law is found to be well established by a series of authentic precedents, and especially where, as in this case, there is no conflict of authority, it is unnecessary for the judges to vindicate its wisdom or policy. It will moreover occur to every mind that the principle mentioned is absolutely essen- tial to the protection of life and property. In the forum of conscience there is no doubt considerable difference between murder deliberately planned and executed by a person of unclouded intellect, and the reckless taking of life by one infuriated by intoxication: but human laws are based upon considerations of policy, and look rather to the maintenance of personal security and social order, than to accurate discrimina- tion as to the moral qualities of individual conduct. But there is in truth no injustice in holding a person responsible for his acts committed in a state of voluntary intoxi- cation. It is a duty which every one owes to his fellow men, to say nothing of more solemn obligations, to preserve, so far as it is in his own power, the inestimable gift of reason. If it be perverted or destroyed by fixed disease, though brought on by his own Vices, the law holds him not accountable. But if by a voluntary act he tempo- rarily casts off the restraints of reason and conscience, no wrong is done him if he is considered answerable for any injury which in that state he may do to others, or tu society. “Before proceeding to examine the judge’s charge, it is necessary to state one other principle connected with the subject of intoxication. I am of opinion that in cases of homicide, the fact that the accused was under the influence of intoxication may be given in evidence in his behalf. The effect which the evidence ought to have upon the verdict will depend upon the other circumstances of the case. Thus, in Rex v. Carroll, which was a case of murder by stabbing, there was not, as the court consi- dered, any provocation on the part of the deceased, and it was held that the circum- stance that the prisoner was intoxicated, was not at all material to be considered. Rex v. Meakin, was an indictment for stabbing with a fork with intent to murder; and it was shown that the prisoner was the worse for liquor. Alderson, Baron, instructed the jury that, with regard to the intention, drunkenness might be adverted to accord- ing to the nature of the instrument used. ‘If,’ he said, ‘he uses a stick, you could not infer a malicious intent so strongly against him if drunk, if he made an intem- perate use of it, as you would if he had used a different kind of weapon; but where a dangerous instrument is used, which, if used, must produce a grievous bodily harm, drunkenness can have no effect upon the consideration of the malicious intent of the party.’ In Rex v. Thomas, for malicious stabbing, the person stabbed had struck the prisoner twice with his fist, when the latter, being drunk, stabbed him, and the jury were charged that drunkenness might be taken into consideration in cases where whatthe law deems sufficient provocation has been given, because the question in such cases is, whether the fatal act is to be attributed to the passion of anger excited by the previous provocation; and that passion, it was said, is more easily excitable in a person when in a state of intoxication than when he is sober; so, it was added, where the question is, whether words have been uttered with a deliberate purpose, or are merely low and idle expressions, the drunkenness of the person uttering them is pro- per to be considered. But if there is really a previous determination to resent a slight affront in a barbarous manner, the state of drunkenness in which the prisoner was, ought not to be regarded, for it would furnish no excuse. “It most generally happens in homicides committed by drunken men, that the con- dition of the prisoner would explain or give character to some of his language, or some part of his conduct, and, therefore, I am of opinion that it would never be correct to exclude the proof altogether. That it would sometimes be right to advise the jury that it ought to have no influence upon the case, is, I think, clear from the foregoing authori- ties. In a case of lengthened premeditation, of lying in wait, or where the death was by poisoning, or in the case of wanton killing without any provocation, such an in- struction would plainly be proper. “‘ Assuming the foregoing positions to be established, I proceed to examine the excep- tion to the charge of the judge. It is difficult to know precisely what was meant by the request to charge; but I think its sense may be expressed thus: that drunken- ness might exist to such a degree, that neither an intention to commit murder, nor a 61 § 70] INTOXICATION AS A DEFENCE. [BOOK I. 3d. While Intoxication per se ts no defence to the fact of guilt, yet when the question of intent or premeditation is concerned, it may be proved for the purpose of determining the precise degree. § 70. This position should be very jealously guarded, since, as has already been remarked, there are few cases of premeditated violent homicide, in which the defendant does not previously nerve himself for the encounter by liquor, and there would in future be none at all, if the fact of being in liquor at the time is enough to disprove the existence of premeditation. The true view, there- fore, would seem to be, not that the fact of liquor having been taken is of any ‘value at all on the question of intent or premeditation, but that when there is no evidence of premeditation aliuwnde, and where the defendant is proved at the time of the occurrence to be in a state of mental confusion of which drink was the cause, the fact of such mental confusion may be received to show either that there was no specific intent to take life, or that there was no positive pre- meditation. In the cases arising out of the statutes resolving murder into two degrees, in which the distinguishing test is a specific intent to take life, this position receives several pregnant illustrations. Thus, in the Philadelphia riot cases of 1844, where it was shown that bodies of men were inflamed by sec- tarian and local prejudices, and blinded by a wild apprehension of danger to such an extent as to make them incapable of discrimination, or of precise or specific purpose, it was held that they could not be considered as guilty of that species of ‘‘ wilful and deliberate’? murder which constitutes murder in the first degree.(n) Precisely analogous to this is the case of the drunkard, motive for such an act, could be imputed to the prisoner. It was therefore asked that it should be left to the jury to determine whether such a degree of intoxication had been shown; and that they should be instructed that if it had, the prisoner should be found guilty of manslaughter only. We must lay out of view as inapplicable, the case of a person who had become insensible from intoxication, and who was perform- ing an act unaccompanied by volition. There was nothing in the evidence to show that the prisoner’s conduct was not entirely under the control of his will, or which would render it possible for the jury to find that he did not intend to stab the deceased with his knife. The mind and will were no doubt more or less perverted by intoxication, but there was no evidence tending to show that they were annihilated or suspended. | Assuming, therefore, that the request did not refer to such a hypothesis, the only other possible meaning is that it supposes the jury legally might find that the prisoner was so much intoxicated that he could not be guilty of murder for the want of the requisite intention and motive, and the request was that they might be so instructed. This would be precisely the same thing as advising them that they might acquit of murder on account of the prisoner’s intoxication, if they thought it sufficient in degree. It has been shown that this would be opposed to a well-established principle of law. The judge was not at liberty so to charge, and the exception to his refusal cannot be sustained. What he did charge on the subject of intoxication, was more favorable to the prisoner than he had a right to claim. It implies that if he was so far intoxicated as to be deprived of his reasoning faculties, it was an excuse for the crime of murder, or, aS perhaps it was intended to state, that he could not be guilty of murder. The rule which I have endeavored to explain assumes that one may be convicted of mur- der, or of other crime, though his mind be reduced by drunkenness to a condition which would have called for an acquittal if the obliquity of mind had arisen from any other cause. The judge ought to have charged, that if a man makes himself volun- tarily drunk, that is no excuse for any crime he may commit while he is so, and that he must take the consequence of his own voluntary act. (Rex v. Thomas, supra.) The charge, therefore, gave the prisoner the chance of an acquittal to which he was not entitled: but this was not an error of which he could take advantage.” (n) Wharton on Homicide, 371, 2. 62 BOOK I.]| HOW IT AFFECTS THE DEGREE, [$ 70 who in a fight slays an antagonist without any prior sober premeditation. In his intoxication he is incapable of such mental action as the term “ premedi- tates’? describes. His mental condition may be such as to deprive him of the capacity to form a “specific intent” to take life, or to do anything else. And yet at the same time, at common law, the offence would, strictly speaking, fall under the head of murder, for it would possess the incident of malice, and would be independent of that of provocation. Under such circumstances the offence properly is to be ranked as murder in the second degree, and such has repeatedly been decided by the courts. (0) (0) Com. v. Jones, 1 Leigh, 612; Com. v. Haggerty, Lewis’ C. L. 403; Pirtle v. State, 9 Hump. 434; Swan v. State, 4 Hump. 131; Penns. v. Fall, Addison, 257; People v. Hammill, 2 Parker, C. C. (N. Y.), 223; People v. Robinson, Ibid. 235 ; State v. Har- lowe, 2 Mis. (6 Bennett), 446. In a case in Tennessee, the court thus speak: “ Upon the trial, there was evidence that the prisoner was intoxicated at the time he com- mitted the homicide. Upon the subject of the defendant’s intoxication told the jury that ‘voluntary intoxication is no excuse for the commission of crime; on the con- trary it is considered by our law as rather an aggravation; yet if the defendant was so deeply intoxicated by spirituous liquors at the time of the killing, as to be incapable of forming in his mind a design deliberately and premeditately to do the act, the killing under such a state of intoxication, would only be murder in the second degree.’ It is insisted that his honor did not state the principle upon this subject, as it has been ruled by this court. In the case of Swan wv. the State, Judge Reese, who delivered the opinion of the court, says: ‘But although drunkenness in point of law constitutes no excuse or justification for crime, still, when the nature and essence of a crime is made to depend by law, upon the peculiar state and condition of the criminal’s mind at the time, and with reference to the act done, drunkenness, as a matter of fact, affecting such state and condition of the mind, is a proper subject for consideration and inquiry by the jury. The question in such case is, what is the mental status? Is it one of self-possession, favorable to a fixed purpose, by deliberation and premedi- tation, or did the act spring from existing passion, excited by inadequate provocation, acting, it may be, on a peculiar temperament, or upon one already excited by ardent spirits? In such a case it matters not that the provocation was inadequate, or the spirits voluntarily drank ; the question is, did the act proceed from sudden passion, or from deliberation or premeditation? What was the mental status at the time of the act, and with reference to the act? To regard the fact of intoxication as meriting consideration in such a case, it is not to hold that drunkenness will excuse crime, but to inquire whether the very crime which the law refines and punishes, has been in point of fact committed. In these remarks the court intend to be understood as dis- tinctly indicating, that a degree of drunkenness by which the party was greatly excited, and which produced a state of mind unfavorable to deliberation and premeditation, although not so excessive as to render the party absolutely incapable of forming a deliberate purpose, might be taken into consideration by a jury, in determining whether the killing was done with premeditation and deliberation.’ The whole subject was ably reviewed by Judge Turley, in the case of Pirtle v. the State. In delivering the opinion of the court, in that case, the judge says, at page 671: ‘It will frequently happen necessarily, when the killing is of such a character as the common law desig- nates as murder, and it has not been perpetrated by means of poison, or by lying in wait, that it will be a vexed question, whether the killing has been the result of sud- den passion produced by a cause inadequate to mitigate it to manslaughter, but still sufficient to mitigate it to murder in the second degree, if it be really the true cause of the excitement, or whether it has been the result of premeditation and deliberation ; and in all such cases, whatever view is able to cast light upon the mental status of the offenders is legitimate proof: and among others, the fact that he was at the time drunk; not that this will excuse and mitigate the offence, if it were done wilfully, deliberately, maliciously, and premeditately (which it might well be, though the perpetrator was drunk at the time) ; but to show that the killing did not spring from a premeditated purpose, but sudden passion, excited by inadequate provocation, such as might reasonably be expected to arouse sudden passion and heat, to the point of taking life, without premeditation and deliberation.’ Here the court explicitly lays down the rule to be, that in all cases where the question is between murder in the first and murder in the second degree, the fact of drunkenness may be proved, to shed light upon the mental status of the offender, and thereby to enable the jury to deter- mine whether the killing sprung from a premeditated purpose, or from passion excited by § 71] INTOXICATION AS A DEFENCE, [BOOK I. § 71. The same general view is taken as to the question of ¢ntent. Thus in. an Ohio case, it was very properly held, that when the charge was know- ingly passing counterfeit money, with intent to cheat, the drunkenness of the defendant at the time of the offence was a fit subject for the consideration of the jury, there being no ground to suppose that the defendant knew the money to be counterfeited before he was drunk.(y) And when the defendant was indicted for an attempt to commit suicide by drowning, and it was alleged that she was at the time unconscious of the nature of her act from drunken- ness, Jervis, C. J., said to the jury: “If the prisoner was so drunk as not to know what she was about, how can you find that she intended to destroy herself ?”’(q) So again, when the charge was assault with intent to murder, Patterson, J., said: ‘‘A person may be so drunk as to be utterly unable to inadequate provocation. And the degree of drunkenness which may then shed light upon the mental state of the offender, is not alone that excessive state of intoxication, which deprives a party of the capacity to frame in his mind a design deliberately and premeditately to do an act; for the court says that in the state of drunkenness referred to, a party well may be guilty of killing wilfully, deliberately, maliciously, and premeditately ; and if he so kill, he is guilty as though he were sober. The principle laid down by the court is, that when the question is, can drunkenness be taken into consideration, determining whether the party be guilty of murder in the second degree, the answer must be, that it cannot; but when the question is, what were the actual mental state of the perpetrator, at the time the act was done, was it one of deliberation and preparation, then it is competent to show any degree of intoxi- cation that may exist, in order that the jury may judge, in view of such intoxication, in connection with all the other facts and circumstances, whether the act was pre- meditately and deliberately done. The law often implies malice from the manner in which the killing was done, or the weapon with which the blow was stricken. In such case it is murder, though the perpetrator were drunk. And no degree of drunk- enness will excuse in such case, unless by means of drunkenness an habitual or fixed madness be caused. The law in such cases does not seek to ascertain the actual state of the perpetrator’s mind, for the fact from which is implied having been proved, the law presumes its existence, and proof in opposition to this presumption, is irrelevant and inadmissible. Hence a party cannot show he was so drunk as not to be capable of entertaining a malicious feeling. The conclusion of lawis against him. But when the question is, whether a party is guilty of murder in the first degree, it becomes indispensable that the jury should form an opinion as to the actual state of mind with which this act was done. All murder in the first degree (except that committed by poison, and by lying in wait), must be perpetrated wilfully, deliberately, mali- ciously, and premeditately. The jury must ascertain as a matter of fact, that the accused was in this state of mind when the act was done. Now according to the cases of Swan v. The State, and Pirtle v. The State, any fact that will shed light upon this subject, may be looked to by them, and may constitute legitimate proof for their consideration. And among other facts, any state of drunkenness being proved, it is a legitimate subject of inquiry, as to what influence such intoxication might have had upon the mind of the offender, in the perpetration of the deed. We know that an intoxicated man will often, upon a slight provocation, have his passions excited and rashly perpetrate a criminal act. Now, it is unphilosophical for us to assume that such a man would, in the given case, be chargeable with the same degree of premedi- tation and deliberation that we would ascribe to a sober man, perpetrating the same act upon a like provocation. It is in this view of the question, that this court held, in Swan’s case, and in Pirtle’s case, that the drunkenness of a party might be looked to by the jury, with the other facts in the case, to enable them to decide whether the killing were done deliberately and premeditately. But his honor, the Circuit Judge, told the jury, that drunkenness was an aggravation of the offence, unless the defendant was so deeply intoxicated as to be incapable of forming in his mind a design delibe- rately and premeditately to do the act. In this charge there is error, for which the judgment must be reversed. Reverse the judgment, and remand the cause for another trial.” Hale v. State, 11 Humph. 154. (p) Pigman v. State, 14 Ohio, 555; affirmed, but limited, in Nichols v. State, 8 Ohio 8. R. (N. 8.) See also U. 8. v. Roudenbush, 1 Bald. 514. (q) R. v. Moore, reported 6 Law Rep. (N. 8.), 581. 64 BOOK I.] EFFECT ON THE QUESTION OF INTENT. ($71 _ form any intention at all, and yet he may be guilty of very great violence. If you are not satisfied that the prisoners, or either of them, had formed a positive intention of murdering the child, you may find them guilty of an assault.’’ (7) Beyond this the advance has been fluctuating. The furthest step taken was in an English case, decided in 1819,(s) where Holroyd, J., is reported by Sir W. Russell, who adopts his opinion as text law, to have said, that the fact of drunkenness might be taken into consideration to determine the question whether an act was premeditated or done only with sudden heat and impulse. This would make drunkenness an item in every question of provocation or hot blood, and would of course open the way to the same difficulties as to general policy, which we have already pointed out in another connection. In 1835, however, this case was expressly repudiated by Parks, J., who said, in refer- ring to Holroyd, J.’s language, as just given, ‘Highly as I respect that late excellent judge, I differ from him, and my brother Littledale agrees with me. He once acted upon that case, but afterwards retracted his opinion. There is no doubt that that case is not law. I think there would be no safety in human life, if it were to be considered as law.(¢) But the very next year, Alderson, B., in a case of stabbing, retraced at least a part of the retreat which had been thus so emphatically sounded. ‘It is my duty to tell you,” he said, “that the prisoner being intoxicated, does not alter the nature of the offence. Ifa man chooses to get drunk, it is his‘own voluntary act; it is very different from a madness which is not caused by any act of the person. That voluntary species of madness which it is in a party’s power to abstain from, he must answer for. However, with regard to the intention, drunkenness may perhaps be adverted to according to the nature of the instrument used. If a man uses a stick, you would not infer a malicious intent so strongly against him, tf drunk, when he made an intemperate use of ut, as you would if he had used a different kind of weapon ; but where a dangerous instrument 7s used, which, if used, must produce grievous bodily harm, drunkenness can have no effect on the consideration of the malicious intent of the party.” (w) Perhaps this is doing no more than reiterating the principle we have already announced, that when there is evidence of sober premeditation, intermediate drunkenness cannot.be received to affect the question of intent; but that, when there is no such evidence, it can. And it would hardly be possible to strain farther than this the following charge, in 1837, by Parke, B. (to be dis- tinguished from Park, J., whose opinion, two years before, has been just noticed) —“TI must tell you, that if a man makes himself voluntarily drunk, that is no excuse for any crime he may commit while he is so; he must take the consequence of his own voluntary act; or most-crimes would otherwise be unpunished. But drunkenness may be taken into consideration in cases where what the law deems sufficient provocation has been given ; because the question is, in such cases, whether the fatal act is to be attributed to the passion of anger, excited by the previous provocation, and that passion is more easily (r) R. v. Cruse, 8 C. & P..541. (s) R. v. Grindley, 1 Rus. on Cr. 8, note n. (4) R.-v.-Carrol,.7 C..&:P. 145. (u) R..v. Meakin, 7 C. & P. 297. 9) 65 § 72] INTOXICATION AS A DEFENCE. [BOOK I. excitable in a person when in a state of intoxication, than when he is sober. So, where the question is, whether words have been uttered with a deliberate _ purpose, or are merely low and idle expressions, the drunkenness of the person uttering them is proper to be considered. But if there is really a previous determination to resent a slight affront in a barbarous manner, the state of drunkenness in which the prisoner was, ought not to be regarded, for it would furnish no excuse. You will decide whether the subsequent act does not fur- nish the best means of judging what the nature of the previous expression really was.’’(v) § 72. The American cases present the same general result, depending in principle, if not in terms, on the position that where the encounter was sudden, and the defendant, prior to such encounter, had no malice or old grudge, intoxication at the time of the encounter, can be taken into consideration, to ascertain whether the defendant when under a legal provocation, acted from malice or from sudden passion.(w) These cases have been arranged as follows, by a late learned writer.(~) “In 1848 the question of intoxication was before the Supreme Court of Alabama, on an indictment for an assault with intent to kill. The court was asked in that case to charge the jury, that, ‘although drunkenness does not incapacitate a man from forming a premeditated design of murder, yet as it clouds the understanding and excites passion, it might be evidence of passion only, and of a want of malice and design.’ ‘This the court refused, but told the jury that ‘drunkenness could have no effect in their consideration.’ The prisoner excepted, and on the hearing in full court, Chilton, J., declared that it was a general rule, that although drunkenness reduces a man to a state of temporary insanity, it does not excuse him, or palliate an offence committed in a fit of intoxication, and which is the immediate result of it; and that if the prisoner had killed the deceased with the deadly weapon (a knife) with which he stabbed him, in a state of intoxication, the crime would not have been reduced from murder to manslaughter by his intoxication, which must be presumed, in absence of contrary evidence, to be voluntary; and the court remark, upon the cases of Penna v. Nutall,(y) and Swan v. The State,(z) that there it was important to ascertain whether the homicide was that ‘wilful, deliberate, malicious and premeditated killing,’ which, by statute, constituted murder in the first degree. The mental state required for that crime, being one of deliberation and premeditation, the fact of the prisoner’s drunkenness was material, not as an excuse for the crime, but to show it had not been committed. The State v. Bullock.(a) Possibly this case may have gone too far in refusing to allow drunkenness to be given in evidence upon question of the intention. The Supreme Court of North Carolina has declared the same law. In 1848 a prisoner was indicted for murder. One defence was drunk- enness. ‘The judge told the jury that drunkenness would not lessen the prisoner’s guilt, if they believed him sane before he became drunk. A new trial being moved for, on the ground of misdirection, Battle, J., said: ‘All the (v) R. v. Thomas, 7 C. & P. 817. (w) See Schaller v. State, 14 Missouri, 502. (x) 6 Law Rep. (N. 8.) 556, &c. (y) Add. 257. (z) 4 Humph. 136. (a) 13 Alabama, 413, A. D. 1848. 66 BOOK I.] EFFECT ON THE QUESTION OF INTENT. [§ 72 writers on the criminal law, from the most ancient to the most recent, so far as we are aware, declare that voluntary drunkenness will not excuse a crime committed by a man otherwise sane, while actlug under its influence. Even the cases relied on by the counsel for the prisoner, Rex v. Meakin,(b) Rex v. Thomas, (c) all acknowledge the general rule; but they say that when a legal provocation is proved, intoxication may be taken into consideration, to ascer- tain whether the slayer acted from malice or from sudden passion, excited by the provocation. Whether the distinction is a proper one or not we do not pretend to say. It has been doubted in England, Rex v. Carroll,(d) and it is a dangerous one, and ought to be received with great caution. But whether ad- mitted or not, it has no bearing upon the present case. There is not a particle of testimony to show that the prisoner was acting, or can be supposed to have been acting under a legal provocation ; and there was therefore no cause for the application of the principle for which the counsel contends. The State v. John.(e) The case of Preble v. State(/) is an important case on this point. The defendant was indicted for murder. At the time of the commission of the offence he was intoxicated from the use of ardent spirits. ‘And in relation thereto the judges charged the jury, that the fact of such drunkenness could not be taken into consideration by them, unless the defendant was so far gone as not to be conscious of what he was doing, and did not know right from wrong.” ‘Out of this charge,” said Turley, J., ‘‘arises the point to be con- sidered by the court in this case, and that is, how far drunkenness in law is a mitigation or excuse for the commission of offences. This is no new question, presented for the first time for consideration, but one of the earliest considera- tions in the law of offences; one which has been again and again adjudicated by the courts of Great Britain and the United States, and, as we apprehend, with a consistent uniformity rarely to be met with in questions of a like interest and importance. Upon the subject we have nothing to discover; no new principle to lay down; no philosophical investigation to enter into, in relation to mental sanity or insanity; but only to ascertain how the law upon this subject has been heretofore adjudged, and so to adjudge it ourselves.” ’ ‘“‘In the case of Cornwall v. The State of Tennessee, (7) the able judge who delivered the opinion of the court, in speaking upon this subject, uses the following very emphatic language :— “*A contrary doctrine ought to be forced nts of circulation, if it has ob- tained it, by every friend to virtue, peace, quietness and good government. All civilized governments must punish the culprit who relies on so untenable a de- fence; and in doing so, they preach a louder lesson of morality to all those who are addicted to intoxication, and to parents and guardians, and to youth and to society, than comes in the cold abstract from pulpits. To the justice and correctness of these remarks, all who have had experience in the annals of crime can bear testimony. It is only at the present term of the court that we have seen it proven that an offender, a short time before the perpetration - of a horrid murder, inquired of a grocery-keeper what kind of liquor would (b) 7C. & P. 297. (c) Ibid. 817. 1 Russell on Crimes, 8. (d) 7C. & P. 145. (e) 8 Jud. 330. (f) 9 Hump. 663, A.D. 1849. (g) Mar. & Yer. 147, 149. 67 § 73] INTOXICATION AS A DEFENCE. [BOOK I, make him drunk soonest, and swallowed thereon a bumper of brandy. We have had three cases of murder, and one of an assault with an intent to murder, before us at this term of court, in every one of which these are con- victions in the Circuit Court and affirmances in this; every one of which is of aggravated character, and in every one of which the perpetrator, at the time of the commission of the offence, was laboring under dementia affectata, drunkenness; an awful illustration of the necessity of holding to the law as it has been adjudged upon this subject. There is, in our judgment, no conflict of authority upon this point of law; every case which may have such appear- ance, being a case of exception, on the application of the rule, or a case of no authority upon the subject. Lord Hale, in his work before referred to,(h) says: ‘If, by means of drunkenness, an habitual or fixed madness be caused, that will be excuse, though it be contracted by the vice and will of the party; for this habitual or fixed phrensy puts a man in the same condition as if it were contracted at first involuntarily. And it was to this principle the Circuit Judge was alluding, when he charged the jury in the present case, that the drunkenness of the prisoner could not be taken by them into consideration, unless he were so far gone as to be unconscious of what he was doing, and did not know right from wrong, in saying which he put the case most favorable for the prisoner; for a man may be so intoxicated as to be unconscious of what he is doing, and not to know right from wrong; and yet not have con- tracted an habitual and fixed phrensy, the result of intemperance, of which Lord Hale is speaking above.’ ”’ § 73. In Kelly v. State,(z) the same question came before the High Court of Error and Appeals of Mississippi. The court below declined to charge the jury that intoxication was evidence of intention in determining whether the killing was murder. The prisoner was convicted of manslaughter only, but the court above, in remarking upon this question, lays down the law as well established, that drunkenness is no excuse for crime, although sometimes held proper for consideration, where the sole question is whether the act done was premeditated or done only with sudden heat or impulse, which might be as truly said of anger or any other excitement arising from sudden provocation or peculiar circumstances; that not much importance was to be attached to it, as might be conceived from the presumption, which was equally great, that the design might have previously existed, and intoxication have been employed to nerve the criminal to the commission of the crime; that the law discriminates between the delusion of intoxication and the insanity which it may ultimately produce. If drunkenness, they said, were to be considered an excuse for crime, ‘there would be established a complete emancipation from criminal justice. The same principle was recognized in North Carolina in State v. M’Cante,(/) being somewhat differently applied. The court here held ‘that if a crime was ‘committed upon a provocation, which, if acted upon instantly by a sober man, would mitigate his offence, evidence of intoxication was admissible upon the question whether such provocation was, in fact, acted upon when the act was (h) P.C.pt.1,ch. 4. See ante, § 67. (i) 3 Smedes & Marshall, 518, A. D. 1844. (j) 1 Spear, 384. 68 BOOK Ts) EFFECT ON THE QUESTION OF INTENT. [§ 18 done. If a man uses a stick upon you, you would not infer a malicious intent so strongly against him if drunk when he mado an intemperate use of it as you would if he had used a different kind of weapon. But where a dangerous instrument is used, which if used must produce grievous bodily harm, drunk- enness can have no effect on the consideration of the malicious intent of the party.” In a case in Tennessee, already cited,(/) it was said by Turley, J.: “The case of R. v. Grindley, decided at Worcester Sum. Ass., 1819, by Holroyd, J., not reported but referred to by Russell in his work upon Crimes, page 8, and now insisted upon by the prisoner as putting the Circuit Judge in the wrong in his charge to the jury, and holding different principles upon this subject, is expressly overruled by Park and Littledale, judges, in the case of R. v. Car- roll;(/) and if it were not, it is an anomalous case, and perhaps was not intended or considered by Holroyd to be in conflict with principles so well and so long settled. The case, as stated by Russell, holds that ‘though voluntary drunkenness cannot excuse from the commission of crime, yet when upon a charge of murder the material question is whether an act was premeditated or done only with sudden heat and impulse, the fact of the party being intoxicated is a circumstance proper to be taken into consideration.’ Now, in relation to this principle, as thus laid down, it may be observed that cases may arise, even of murder at common law, in which it would be proper to receive such proof as explanatory of intention. To constitute murder at common law, the killing must have been done with malice aforethought} the existence of this malice necessarily implies the absence of all circumstances of justification, excuse, or mitigation arising from adequate provocation; and this malice is either express or implied: express, when it has been perpetrated by poison, lying in wait, or other deliberate and premeditated manner; implied, from the nature of the weapon, the violence of the assault, and the inadequacy of the provocation. It may become important in a case to know whether poison which has been imbibed was administered knowingly and designedly or accidentally. And if it be wilful, which it is in the case of a medicine, there being two on the table, one a poison and the other not, and the poison be administered, is not the fact that the person who administered it was drunk at the time legitimate proof for the purpose of showing that it was a mistake which a drunken man might make, though a sober one would not? This would be, not to protect him from the punishment for his crime, but to show that he had not given the poison premeditately, and therefore was guilty of no crime. So if the ques- tion be whether the killing is murder or manslaughter, the defence being adequate provocation, and it be doubtful whether the blow be struck upon the provocation or upon an old grudge, it seems to us, proof that the prisoner was drunk when he struck the blow is legitimate, not to mitigate the offence, but in explanation of the intent—that is, whether the blow was struck upon the provocation or upon the old grudge; for the law only mitigates the offence to manslaughter, upon adequate provocation, out of compassion to human frailty; and therefore, though there be adequate cause for such mitigation, (k) Pirtle v. State, 9 Hamp. 663. (1) 7C. & P. 145. 69 § 73] INTOXICATION AS A DEFENCE. [BOOK I. yet if, in point of fact, one avail himself of it to appease an old grudge, it is murder, and not manslaughter; and in all such cases the question necessarily is. whether the blow was stricken premeditately, or upon sudden heat and impulse produced by the provocation, and the fact of the self-possession of the perpetrator of the crime is very material in a conflict of proof upon the subject. If this be the extent of the opinion of Holroyd, in the case of Rex v. Grindley, we are not prepared to hold that it is not law. But if it be un- derstood to hold that a killing may be mitigated from murder to manslaughter in consequence of the drunkenness of the perpetrator, thereby making that adequate provocation in the case of a drunken man which could not be so in the case of a sober one, we are prepared to hold, with Park and Littledale, that it is not law.” In 1858, on an indictment for maliciously stabbing with an intent to kill, the Supreme Court of Ohio said :— ‘‘Did the court below err in holding, as it did substantially, that, in a case of this kind, the intoxication of the accused had nothing to do with the ques- tion of malice ? “This is a question much more difficult and serious than the preceding, and in respect to which our minds have not been free from doubt; but, after a long and somewhat anxious deliberation, we have unanimously come to the conclusion that there was no error in the charge of the court below on this point. ‘‘ All authorities agree that@runkenness is no excuse forcrime. Crime, when all the acts of hand and mind which constitute it actually exist, is not the less criminal when committed by a person intoxicated. A drunken malice is as dan- gerous, and may be quite as wicked, as a sober malice; and it is a sorry con- solation to a sufferer from a murderous stab, and to a community which is responsible for his protection, to be told that the act was done by a man who was bound in morals to keep sober, and who had the power to keep sober, but who had become voluntarily drunk. Nevertheless, it has been held, in this State, that where a peculiar knowledge was an element of the guilty act, re-_ quiring nice discrimination and judgment, as in passing a counterfeited bank- bill, knowing it to be counterfeited, and where deliberation and premeditation are necessary ingredients of the crime, as in murder in the first degree, evi- dence of intoxication is admissible, and proper to be taken into consideration by the jury, in determining the question as to the guilty knowledge in the one case, and as to the deliberation and premeditation in the other. So, if the accused was so drunk as not to know what he was doing, the fact of intoxica- tion may doubtless be given in evidence for what it is worth for the purpose of showing that he did not intend at the time to do what in fact he did do.(m) So far as we are advised, there is no reported case in Ohio requiring us to go beyond this; and to this extent, on a fair construction of the language of the court below in charging the jury, the prisoner, in the case before us, had the benefit of the evidence in regard to his state of intoxication. And this, too, ; (m) Pigman v. The State, 14 Ohio Rep. 555. 70 | BOOK I.] MENTAL UNSOUNDNESS PSYCHOLOGICALLY. [$ 74 seems to be the full extent to which we are led by the general current of au- thorities in other States. (7) “We will not say but that, admitting the correctness of these decisions, a re- fined and rigid logical theory might not require us to go further. But here the authorities authorize us to stop; and here we think a proper regard to the public safety in the practical administration of criminal justice requires that we should stop. This kind of evidence is at best, and in any case, of danger- ous tendency in its practical application. Intoxication is easily simulated. It is often voluntarily induced for the sole purpose of nerving a wicked heart to the firmness requisite for the commission of a crime soberly premeditated, or as an excuse for such a crime. Yet these pre-existing dispositions may be difficult or impossible to prove. And when we admit evidence of intoxication to rebut a guilty knowledge requiring nice deliberation and judgment, to rebut a charge of deliberation and premeditation, and to show that the accused did not at the time intend to do the act which he did do, we think we have gone far enough; and that, looking to the practical administration of the criminal law, a due regard to the public safety requires that the mere question of malice should be determined by the circumstances of the case, aside from the fact of intoxication, as in other cases.’’(0) § 73 (a). 4th. Burden of proof in insanity.—Where the burden of proof lies in a criminal trial where insanity is set up, is considered in another work.(p) The rule in civil cases has already been noticed. (q) CHAPTER II. MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. § 74. “THE various diseases included in the general term insanity, or men- tal derangement,” says Dr. Ray, “may be conveniently arranged under two divisions, founded on two very different conditions of the brain ; the first being a want of its ordinary development, and the second, some lesion of its structure subsequent to its development. In the former of these divisions, we have Idiocy and Imbecility, differing from each other only in degree. The various affections embraced in the latter general division may be arranged under two subdivisions, Mania and Dementia, distinguished by the contrast they present in the energy and tone of the mental manifestations. Mania is characterized by unnatural exaltation or depression of the faculties, and may be confined to the intellectual or to the affective powers, or it may involve them both, and these powers may be generally or partially deranged. Dementia depends on a more or less complete enfeeblement of the faculties, and may be consecutive to injury of the brain, to mania, or to some other disease; or it may be con- (n) Com. v. Jones, 1 Leigh, 612; Com. v. Haggerty, Lewis C. L. 403; Pirtle v. The State, 9 Humph. 664; Swan v. The State, 4 Humph. 136; Haile v. The ata 11 Humph. 154; 2 Parker’s (N. Y.) C. Rep. 223-235. (0) Nichols v. The State, 8 Ohio State R. (N. 8.) 438-9. (p) Wharton’s Criminal ‘Law, § 55, 711. (q) Ante, § 33-35. Tl § 75] FLEMMING’S CLASSIFICATION. [BOOK I. nected with the decay of old age. These divisions will be more conveniently exhibited in the following tabular view :— Ipiocy. 1. Resulting from congenital defect. Defective 2. Resulting from an obstacle to the development development of the faculties, supervening in infancy. of the Impeciuity. 1. Resulting from congenital defect. faculties. | 2. Resulting from an obstacle to the development of the faculties, supervening in infancy. INSANITY. ( Tiriuireeeuly 1. General. ? (2. Partial. Lesion of the MANIA. faculties subsequent to their development. DEMENTIA. 1. Consecutive to mania, or injuries of the brain. L 2. Senile peculiar to old age. (a) AFFECTIVE, u soir § 75. The following classification of Flemming, (b) while less simple, is very valuable both for the delicate precision of its analysis, and for the important aid it affords to the nomenclature of forensic psychology :— I. INFIRMITAS. (Geistesschwiche.) Imbecility, the characteristic being the diminution in psychical power. Ist. As to origin. (1.) Primaria sew congenita. (Syn. Idiotismus.) A defective development perceptible either at birth or infancy. (2.) e morbo, arising from wounds on the head, brain or nervous fevers, or epilepsy. (3.) Sends, arising from decrease in vitality in the extreme stages of old age. 2d. As to extent. (1.) Infirmitas adstricta. Limited imbecility, the characteristic being dimi- nution of particular organic powers. (2) Dysmenia. Weakness of memory, the characteristic being the feebleness of the reproductive power of the perceptive faculty, and the symptoms, an inability to remember things either re- cent or remote, distinctly or at all. (6) Infirmitasadstricta surdo-mutorum. Imbecility of the deaf and dumb. (c) Infirmitas adstricta excorum. Imbecility of the blind. (2.) Infirmitas sparsa. General weakness of mind, the characteristic being the absolute or relative weakness of all the mental and moral func- tions, and the symptoms, obtuseness and feebleness of the perceptive and attentive powers ; feebleness of comprehension, of ratiocination, of imagination, of memory, in a variety of gradations. II. VESANTA, (Geistes verwirrung.) Mental confusion, the characteristic being a depravity (depravation) of the psychical powers arising from excess or perversion. Ist. Vesanta dysthymodes, or dysthyma, disorder of temperament, the characteristic being the depravity (depravation) of the psychical powers connected with an overpowering disturbance of the temperament. Symptoms; an anomalous condition of the sensibility, the mental tone, the inclinations, and the impulses. The consequent deliria are the invariable effect of the dysthymia, and depend upon the prevailing feeling or sentiment. (1.) Dysthymia transitoria seu subita. Sudden dysthymia, the characteristic being the suddenness and rapidity of its approach. Symptoms; irri- tability, proneness to agitation, irascibility, excessive disgust, fear of death, extreme timidity, despair of happiness. It occurs frequently in the Stadiwm predromorum of cerebral affections and nervous fevers, or of epilepsy and the cognate complaints; and is sometimes, though more rarely, accompanied by the sudden suicidal impulse. It should be observed that dysthymia remittens sinks in the remission into the mere dysaethesis. (2.) Dysthymia adstricta, or partial dysthymia, the characteristic being an anomalous condition of particular states of feeling, inclinations, and impulses. (a) Ray on Insanity, 71. (>) Psychiatrisches Journal, Bd. I. Hft. 1, p. 112. 12 BOOK. I.] FLEMMING’S CLASSIFICATION. [$ 76 (2) Atra (the Melancholia Lypemonia, of Esquirol), or gloomy Dysthymia, the characteristic being sadness, fear, dread, sus- picion, malevolence, homesickness (xostalgia), and the wild- ness and ferocity of the intoxicated. (Ferocitas et morositas ebriosorum. (4) Dysthymia candida, cheerful Dysthymia (Melancholia hilaris, Cheromanie Chambeyron), the characteristics being hilarity, recklessness of manner, raillery, proneness to see all things in the most vivacious light. (c) Dysthymia mutabilis, variable Dysthymia, the characteristic being vacillation between the two foregoing forms. (3.) Dysthymia sparsa (apathica), general Dysthymia (Melancholia Atto- nita). The characteristics being, apparent obtuseness, dull, heavy reveries and abstractions, prevalence of an indistinct sensation of dis- comfort, apathy to all extraneous impressions. 2d. Vesanta Annoetos, or Anoesia. Disturbance of the understanding. The cha- racteristics being the depravity (depravation) of the psychical powers, with a controlling anomalousness of the intellectual faculties. Symptoms, deliria of various kinds, with manifestations of Dysthymia, which, however, are merely subordinate. (1.) Anoesia Transitoria, or Subita. Sudden Anoesia. The characteristics being unexpected appearance and rapid subsidence. - (a) Anoesta e febre. Febrile delirium. (4) Anoesia e potu nimto (ebrietas). Drunkenness. (c) Anoesta ex affectu, madness caused by agitation of mind. (d) Anoesta semisomnis. Confusion of mind in sleep. Sleep-drunk- enness. (e) Anoesta Somnambula, or Spastica ; Somnambulism. (2.) Anoesta continua, chronic Anoesia. (3.) Anoesta remittens. Remittent Anoesia. (4.) Anoesta adstricta, partial Anoesia or Lunacy. The characteristics being delirium in particular intellectual departments. (a) Anoesta ad sensationes. Hallucinations (deliria of the senses). (Var. a fallacia sensuum et hallucinatio ebriosorum), derange- ment of the senses consequent on excess of drinking. (4) Anoesia ad cogitationes, eccentricity, fixed insane ideas. (5.) Azoesia sparsa. General Anoesia or lunacy, the characteristics being Deliria in every department of the intellectual faculties. Var. a Anoesta potatorum (Delirium tremens). 3d. Vesania mantaca seu Mania. The characteristic being a depravity (deprava- tion) of the psychical functions, with a concurrent anomalousness of the emotional and intellectual faculties. The symptoms are a violent and perverse temper, inclinations and impulses, with violent deliria, which mutually sustain and aggravate each other. (1.) Manta transitoria subtta, sudden mania, the characteristic being a sud- den breaking out of mania without perceptible premonitory stages, and without previous Dysthymia or Anoesia ; generally a crisis in sleep, or transition to the second class. (2) Mania subita a febre (Deliriwm encephaliticum), sudden deli- rium, with feverish symptoms of the brain and nerves. (2) Mania subita a potu nimvo, arising from and during intoxication. (c) Manta subita ex effectu, mania caused by excessive agitation of the affections. (2) Manta subita e partu, mania connected with parturition. (e) Vania subtto e morbo occulto (vulgo), Amentia occulta, which also includes the previous species. (2.) Mania continua, permanent mania. (3.) Manta remittens, Remittent mania. (Remark—Remittent mania in re- mission turns into Anoesia, in some cases immediately into Dysthymia.) (4.) Manta adstricta seu instinctiva. Moral Insanity. (Mania sine delirio of Pinel; Monomanie instinctive of Mare; Mania affectiva; Folie raisonante); the characteristics being insanity, apparently confined to specific morbid impulses. This class is almost always connected with the symptoms of Manta transitoria seu subita. (5.) Mania Sparsa, general mania is the characteristic, being a depravity (depravation) of both the moral and intellectual powers. § 76. To Ellinger(c) we are indebted for the following :— I. Diseases of the affections, when the affections, sentiments and desires are preponderatingly alienated, while the intellectual faculties are affected in an inferior or at least a secon- dary degree. (c) Ueber die antropologischen Momente der Zurechnungs fahigkeit. Ludwigsburg, 1846. 13 § 77] PRESENT CLASSIFICATION. [BOOK I. (2) Melancholy, the prevalent type being sadness, depression, fear, dread, and despair. (6) Phrensy, the prevalent type being mirth, mischievousness, anger. (c) Volatility (Launenhaftigkeit). Alternation between the two last mentioned hases. If. Delirium, ehavasatinents and intellectual faculties being equally affected, and both the subjective and objective relations alike distorted. (a) (6) (c) Characterized by melancholy, phrensy, and the alternation of the two. III. Diseases of the intellect, where the affections take a subordinate part and the intellect is mainly disordered. (a) Partial. (4) General. (c) Debility, including idiocy and imbecility. § 77. Without attempting a formal analysis, it is now proposed to consider the several points in which Psychology comes in contact with the law of the land, in the following order :— I. GENERAL THEORIES OF MENTAL UNSOUNDNESS, § 78. 1st. PsycHoLogicAL THEORY, § 79. 2d. SoMATIC THEORY, § 80. 3d. INTERMEDIATE THEORY, § 81. Difficulties attending each of the first two, § 82. Question as to moral responsibility of lunatics, § 83. II. HOW MENTAL UNSOUNDNESS IS TO BE DETECTED, § 86. 1st. By wuom, § 86. Medical expert necessary for this purpose, § 86. Great skill and experience needed, § 87. Dangers of an inexperienced examiner being bafiled, § 88. Responsibility in law of medical examiner, § 89. Importance of examiner adapting his manner to patient’s condition, § 90. Important thatJegal and medical officers should, in such cases, act in common, § 92. Manner in which medical witness is to be examined on trial, § 94. 2d. AT WHAT TIME, § 95. (1.) Time of act, § 95. (2.) At trial, § 97. (3.) On and after sentence, § 98. 3d. By wHat TEsts, § 100. (1.) Physiognomy, § 100. ; Relations of the different features, § 101. (2.) Bodily health and temperament, § 102. State of bowels, § 102. Physical disorganization, § 103. Insensibility to pain and cold, § 104. Irregularities in action of senses, § 105. Change in disposition, § 106. (3.) Hereditary tendency, § 107. Importance of this test, § 108. Admissible in point of law, § 108. Opinion of Gibson, C. J., 2 108. (4.) Conversation and deportment, § 110. Necessity of great cireumspection in this respect, § 110. Cases illustrating this, § 111. (5.) Nature of act, § 112. (a) Its insensibility, 3 112. (bd) Its incongruity with antecedents, § 113. (c) Its motivelessness, § 114. (d) Its inconsequentiality, § 115. III. FROM WHAT MENTAL UNSOUNDNESS IS TO BE DISTINGUISHED. 1st. Emotions, § 116. (1.) Remorse, § 116. (2.) Anger, § 118. (3.) Shame, § 122, (4.) Grief, § 124. (5.) Homesickness (Nostalgia), § 125. T4 BOOK I.] ANALYSIS OF MENTAL UNSOUNDNESS. [$ 77 2d. SrmuLATED insanity, § 127. Necessity for close examination, § 127. Tests to be applied, § 128. Delirium most usually counterfeited, but the most difficult, § 129. Physiognomy and health to be examined, § 130. Case to be compared with other recorded cases, § 131. Simulation not to be inferred from absence of a trace of insanity at the examination, § 132. Causes why such signs may be suppressed, § 132. Pretended insanity frequently turns into real, § 133. How examination is to be conducted, § 134. Patient to be brought into a succession of relations, § 135-8. To be furnished with pen, ink, and paper, and other methods of exa- mination, §§ 135-8. Insania Occulta, features of, § 139. Necessity of guarding against, § 139. . IV. MENTAL UNSOUNDNESS, AS CONNECTED WITH DERANGEMENT OF THE SENSES, AND DISEASE, § 140. 1st. DEAF AnD Dump, § 140. 2d. Brinn, § 141, 3d. Eprmeptics, § 142. Peculiar tendency of epilepsy to insanity, § 142. Nature of epilepsy, § 143. Distinction between the several classes, § 144. Different stages of the disease, § 145. Actions committed during attack, not valid, § 146. Rule as to intermediate stages, § 147. Tests laid down by Clarus, § 148. V. MENTAL UNSOUNDNESS, AS CONNECTED WITH SLEEP, § 149. General effect of sleep on the senses, § 149. Ist. SoMNOLENTIA, OR SLEEP-DRUNKENNESS, § 151. 2d. SomNAMBULISM, § 159. VI. MENTAL UNSOUNDNESS, AS AFFECTING THE TEMPERAMENT, § 163. 1st. Depression, § 163. 2d. HypocnonprtiA, § 166. dd. Hysreria, § 169. 4th. MeLancuoty, § 170. VII. MENTAL UNSOUNDNESS, AS AFFECTING THE MORAL SYSTEM, § 174. Ist. GENERAL MORAL MANIA, § 174. Effect of, § 174. General symptoms, § 175. Illustrations, § 176. 2d. Monomanta, § 177. Doctrine of Mania sine Delirio, § 178. Difference of opinion as to its existence, § 179. Tests to be applied to it, § 180. Tendency in this country to recognize its existence, § 183. (1.) Homicidal mania, § 186. Cases where Esquirol supposes it to exist, § 186. Precautions necessary in its recognition, § 190. Tests suggested by Dr. Ray, § 190. ee i ‘¢ Dr... Taylor,. 9 190; Dr. Mayo’s objections to the entire theory, § 191. (2.) Kleptomania (morbid propensity to steal), § 192. (3.) Pyromania (morbid incendiary propensity), § 195. How far recognized in England, § 197. Necessary tests, § 198. (4.) Aidoiomania (morbid sexual propensity), § 199. (5.) Pseudonomania (morbid lying propensity), § 202. (6.) Oikeiomania (morbid state of domestic affections), § 204. (7.) Suicidal mania (morbid propensity to self-destruction), § 206. Tendency to this in cases of melancholy, &c., § 207. Legal consequences in actions against life insurers, § 208. MENTAL UNSOUNDNESS PSYCHOLOGICALLY. [BOOK is (ZA) “J ~I ee} (8.) Fanatico-mania, 3 209. (a) Supernatural or pseudo-supernatural demoniacal posses- sion, § 210. Testimony of ancient writers to this, § 210. rs of the New Testament, § 211. (b) Mental alienation on religious subjects, § 214. Tendency of infidelity to insanity, § 214. Conservative influence of Christianity, § 215. Insane delusion the result of a departure from Christianity, § 216. Illustrations of this, § 217. Legal bearings of religious insanity, § 219. (9.) Politico-mania, § 220. How far an epidemic, § 221. Causes likely to generate it, § 221. VIII. MENTAL UNSOUNDNESS, AS CONNECTED WITH INTELLECTUAL PROS- TRATION, § 222. Ist. Iptocy, § 222. Nature of, § 222. Physical incidents of, §§ 523-5-6. Cretenism, § 228. 2d. ImBeciuity, § 229. With concomitant insanity, § 230. Original, § 230. Supervening, § 230. Specious, § 230. With confusion of mind, § 230. Without insanity, § 231. Distinction between innocent and malignant imbecility, § 232. 3d. DementiA, § 234. IX. MENTAL UNSOUNDNESS ACCOMPANIED WITH DELIRIUM, § 235. Ist. GENERAL Deinium, § 235 (a) Depressed delirium, § 236. (b) Maniacal delirium, § 237. (c) Delirium tremens, § 238. (d) Puerperal mania, § 239. 2d. Partian DeEtirivm, ¢? 240. X. MENTAL UNSOUNDNESS, AS CONNECTED EMME: DELUSIONS AND HALLU- CINATIONS, § 241. lst. GENERAL, § DA1, Marked by general derangement of the perceptive faculties, § 241. Various phases it assumes, § 242. Tests of Ellinger, § 243. Effect of general delusion, § 244. 2d. Partiat, § 245. Delusions and hallucinations, § 245. When there is no other sign of mental unsoundness, § 246. When mental unsoundness has made some progress, § 247. In cases of drunkenness, &c., § 248. In cases of developed insanity, § 249. Causes of delusions, § 250. Abercrombie’s classification, § 252. Hallucination in regard to a change into, or a possession by, wild animals, § 253. XI. MENTAL UNSOUNDNESS, AS CONNECTED WITH LUCID INTERVALS, § 254. XII. TREATMENT OF INSANE CRIMINALS, § 259. Necessity of separate places of confinement in which insane criminals can be placed, § 259. (1.) For Rerrisution, § 260. In most if not all, cases of crime resulting from insane impulse, there is original responsibility, § 260. Insanity, in most cases, the result of moral excess, § 261-9. Qualified responsibility of lunatics, § 261-9. 76 BOOK I.] BODY AND SOUL: THEIR RECIPROCAL INFLUENCE, [$ 80 (2.) For Prevention, § 270. Mischief to society if monomaniacs are suffered to go at large, § 270. Necessity of restraint, § 271. (3.) For Exampte, § 272. Contagiousness of unchecked crime, § 272. (4.) For Rerorm, § 273. Impossibility of patient recovering when permitted to run at large, § 273. Injury to the community from the want of secondary punishments, the result being acquittals of dangerous parties, from an unwill- ingness to see the severer penalties inflicted, § 274. Ordinary penitentiaries inadequate, § 275. And so of ordinary lunatic asylums, § 276. I. GENERAL THEORIES OF MENTAL UNSOUNDNESS. § 78. To those who have examined that portion of the preceding pages which treats of the legal relations of mental unsoundness, it will be obvious that no hypothesis can be constructed which will meet with exactness every possible future case. No general definition has therefore been attempted, and it is sufficient at present to notice the three prominent hypotheses by which the cause, rather than the nature, of mental unsoundness has been explained. This examination is here made the more thorough, from the fact that it is upon the result of this inquiry that the philosophy of the common law doc- trine of insanity must depend. § 79. Ist. The psychological theory. This is based on the assumption that the primitive source of these diseases is in the soul itself, and that the soul is that which originally suffers, and imparts, when there is sympathetic insanity, its malady to the body.(d) § 80. 2d. The somatic theory takes for granted that the soul itself, as such, is incapable of originating a disease, but that the occasion of every affection of the mind is to be found in some abnormity of bodily development, and that aberrations of mind are nothing more than disturbances of some functions of the soul produced by bodily abnormities. This theory resolves itself into various subdivisions. One party assumes, that while every mental disease is to be deduced from bodily causes, it is still to be treated as a self-existent dis- ease; while others maintain that there can be no such thing as a diseased state of the mind, and that what we usually designate as such, is nothing more than a symptom of some bodily disorder.(e) The somatic theory, so far as it involves phrenology, is examined with singular accuracy and thorough- ness by Sir William Hamilton, in the appendix to the first volume of his Lectures on Metaphysics.(ee) He first discusses the phrenological doctrine of (d) See an exposition of this in Dr. Henry Monro’s “ Remarks on Insanity, its Nature and Treatment.” London, 1850. (e) A very ingenious though unsound defence of the Somatic Theory will be found in Mr. M. B. Sampson’s “Criminal Jurisprudence considered in relation to Cerebral Organization.”” London, 1843. Hobbes’ famous theory drifts in the same direction. The result of this would be to make all restraint an injustice. So far as concerns phrenology, the reader is particularly referred to Sir William Hamilton’s Lectures on Metaphysics, pp. 650-658, where the phrenological theory is thoroughly demolished. (ee) Edition by Mansel and Veitel, Gould and Lincoln, 1859. : T § 80] BODY AND SOUL: [BOOK I. the cerebellum, and by a series of experiments, explodes the phrenological hy- pothesis. After having weighed, with peculiar care, and under precautions which exclude all the known possibilities of mistake, over one thousand brains of fifty different species of animals, he shows :— (1.) The cerebella of animals generally are not, during a certain period subsequent to birth, less in proportion to the brain proper than in adults. (2.) In no species of animal has the female a proportionally smaller cere- bellum than the male; while in most species, ‘‘and this, according to a cer- . tain law, she has a considerably larger.” (3.) So far from being the case, as is alleged by phrenologists, that in im- puberal animals the cerebellum, in proportion to the brain proper, is greatly less than in adults, the contradictory is shown. (4.) The phrenological assertion, that “the proportion of the cerebellum to _ the brain proper in different species, is in proportion to the energy of the phrenological function attributed to it,” is equally groundless. : We add one or two distinct points.made by this most eminent and most reliable of modern psychologists: ‘‘I shall, however, give you the sample of another general fact. The organ of veneration rises in the middle on the coronal surface of the head. Women, it is universally admitted, manifest reli- gious feeling more strongly and generally than men, and the phrenologists accordingly assert that the female cranium is higher in proportion in that region than the male. This I found to be the very reverse of truth, by a com- parative average of nearly two hundred skulls of either sex. In man, the | female encephalus is considerably smaller than that of the male, and in shape the crania of the sexes are different. By what dimension is the female skull less than the male? The female skull is longer, it is nearly as broad, but it is much lower than the male. This is only one of several curious sexual dif- ferences of the head. “T do not know whether it be worth while mentioning, that, by a comparison of all the crania of murderers preserved in the Anatomical Museum of this University, with about nearly two hundred ordinary skulls indifferently taken, I found that these criminals exhibited a development of the phrenological organs of destructiveness and other evil propensities smaller, and a develop- ment of the higher moral and intellectual qualities larger, than the average. Nay more, the same results were obtained when the murderers’ skulls were compared, not merely with common average, but with the individual crania of Robert Bruce, George Buchanan, and Dr. David Gregory.” Then, as to the frontal sinuses :— “JT omit all notice of many other decisive facts subversive of the hypothesis in question; but I cannot leave the subject without alluding to one, which dis- proves at a blow a multitude of organs, affords a significant example of the accuracy of phrenological statement, and shows how easily manifestation can, by the phrenologists, be accommodated to any development, real or sup- posed. I refer to the frontal sinuses. These are cavities between the tables of the frontal bone, in consequence of a divergence from each other. They | are found in all puberal crania; their extent and depth are variable, and wholly inappreciable from without. Fortunately, or unfortunately, the phre- 78 BOOK I. | THEIR RECIPROCAL INFLUENCE. [$ 80 nologists have placed seventeen of their smallest organs over the region of the sinus, that is behind it. How is it possible that eye or finger can detect minute degrees of cerebral development beyond these invisible, unknown cavi- ties, of various extent? ‘The phrenologists were not acquainted with the anatomy of the part. Gall asserted that the sinus was often absent in men ; seldom or never found in women. Spurzheim declares that the frontal sinuses are found only in old persons, or after chronic insanity.”’ In reply to this, Sir W. Hamilton shows, after an inspection of several hundred crania, that no skull is without a sinus. “Behind the spacious caverns,” he then goes on to show, “‘in utter igno- rance of the extent, frequency, and even of the existence of this impediment, the phrenologists have placed not one large, but seventeen of their smallest organs.”’ ‘By concentrating all their organs of the smallest size within the limits of the sinus, they have, in the first place, put the organs whose range of develop- ment is least, behind an obstacle whose range of development is greatest. ‘In the second place, they have at once thrown one-half of their whole or- ganology beyond the range of possible discovery and possible proof. “Tn the third place, by thus evincing that their observations on that one- half had been only illusive fancies, they have furnished a criterion of the credit that may be accorded to their observations on the other half. In this, as in other portions of their doctrine, they have shown that manifestation and development are quantities, which (be they what they may), can always he brought to an equation. “Fourthly, as if determined to transcend themselves, and find ‘a lower deep beneath the lowest,’ they have placed the least of their least organs at the very point where this great obstacle is most potent. The sinus is almost always deepest towards the inner angle of the eyebrows, and it is just there that the minute organs of size, configuration, weight, resistance, &c., are said to be. “Tn the fifth place they have been quite as unfortunate in the location of the other minute organs. These they arranged in a series along the upper edge of the orbit, where, independently of the sinus, the bone varies more in thickness than in any other part of the skull. Here have they packed those organs more closely than peas in a pod, which they scarcely exceed in size. If these pretended organs actually and severally protruded from the brain (which they do not), if there were no sinus intervening (as there is), if they were under the thinnest part of the cranium (instead of the thickest), still these petty organs could not reveal themselves by showing any elevation, and espe- cially any sudden elevation of superincumbent bone. They might possibly indent the inner surface, and cause a slight attenuation of the bone—and this is all they could do. The glands of Pacchioni, as they are improperly called, which rise on the coronal surface of the encephalos, and are often even larger than the bodies in question, though they attenuate to the thinnest, never ele- vate in the slightest the external bony plate.”’ The thoroughness of the material on which Sir W. Hamilton acted, is shown by the fact that all the crania in the public Anatomical Museum at Edinburgh were inspected by him. He subsequently obtained access to fifty 79 § 81] | BODY AND SOUL: [BOOK I. crania, with their supposed developments marked by Spurzheim’s own hand, which had passed to the Royal Museum of Natural History at Edinburgh. By a tabular view he shows that a large proportion of the supposed ‘‘organs”’ were covered or crowded by the frontal sinus. § 81. 38d. The intermediate theory attributes to the body and the soul alike originative influence, in the growth of mental diseases.(/) This theory is (f) See a very capable sketch of these theories in Schtirmayer, Gerichtliche, Medi- cin, § 521, from which this analysis is taken, and see also particularly Dr. Rush’s examination of the same points in his treatise on the Mind, pp. 12, 13, 14, and where that eminent authority (p. 16) localizes madness in the bloodvessels of the brain. Feuchtersleben, in his celebrated work (Principles of Medical Psychology, translated by Evans Lloyd, printed by the Sydenham Society, London, 1847), may be considered as adopting the intermediate theory. Insanity, he tells us, is not either a bodily or a mental disease, being a disturbed reciprocal relation of mind and body. Dr. Jamieson (Lectures on the Med. Jur. of Insanity, by Robert Jamieson, M. D.) takes this same view. The religious aspects of the question are well discussed in the London Christian Ob- server, vol. 29, p. 265, and by the Rev. Dr. Jones, in ‘Man, Moral and Physical,” Phil. 1860. Sir Benjamin Brodie, in a late very interesting essay (Psychological Inquiries, &c. London, 1854), gives the following conclusive objections to the phrenological phase of the somatic theory: ‘Now there are two simple anatomical facts which the founders of this system have overlooked, or with which they are probably unacquainted, and which of themselves afford a sufficient contradiction of it. ‘1st. They refer the mere animal propensities, chiefly to the posterior lobes, and the intellectual faculties to the anterior lobes of the cerebrum. But the truth is, that the posterior lobes exist only in the human brain, and in that of some of the tribes of monkeys, and are absolutely wanting in quadrupeds. Of this there is no more doubt than there is of any other of the best established facts in anatomy; so that, if phrenology be true, the marked distinction between man on one hand, and a cat, or a horse, or a sheep on the other, ought to be, that the former has the animal propensities developed to their fullest extent, and that these are deficient in the latter. “Odly. Birds have various propensities and faculties in common with us, and in the writings of phrenologists many of their illustrations are derived from this class of ver- tebral animals. But the structure of the bird’s brain is essentially different, not only from that of the human brain, but from that of the brain of all mammalia. In order that I may make this plain, you must excuse me if I repeat what I said on the subject formerly. In the mammalia the name of the corpus striatum has been given to each of two organs of a small size compared with that of the entire brain, distinguished by a peculiar disposition of the gray and the fibrous or medullary substance of which they are composed, and placed under the entire mass of the hemispheres of the cerebrum. In the bird’s brain what appears to be a superficial observer to correspond to these hemispheres is found on a more minute examination, to be apparently the corpora striata developed to an enormous size; that which really corresponds to the cerebral hemispheres being merely a thin layer expanded over their upper surface, and pre- senting no appearance of convolutions. It is plain then, that there can be no phreno- logical organs in the bird’s brain, corresponding to those which are said to exist in the human brain, or in that of other mammalia. Yet birds are as pugnacious and de- structive, as much attached to the localities in which they reside, as any individual among us.”’ In his interesting work on Criminal Jurisprudence, Mr. Sampson adopts the views of the author of the “ Vestiges of the Natural History of Creation,” and ascribes every criminal action to some abnormal or morbid condition of the cerebral organization. This fundamental proposition is, that “every manifestation of the mind depends upon the confirmation and health of its material instrument, the brain; and as it is not the function of a sound and healthy brain to give rise to any other than healthy mani- festations, so no error of judgment can ever arise, but as the result of a defective condition of that organ.” He proceeds to say :— “‘Mr. Hurlbut, an eminent counsellor, and one of the Supreme Judges in the State of New York, in his ‘ Essays on Human Rights and Political Guarantees,’ a work which is well worthy of perusal, promulgates the same doctrine, which on the other hand is very ably controverted by Dr. Hoods. —‘ Suggestions for the further provision of Crimi- nal Lunatics, by Charles Hood, M.D. London, 1854. pp. 126, 127.’” 80 BOOK I.] SOMATIC THEORY. [$ 82 the one best sustained by modern induction, and is that which is most con- sistent, as will presently be seen, with the Christian standard. § 82. Independently of the pathological difficulties in the way of the somatic theory, psychological research testifies most strongly against it.(g) The men- tal and moral functions are the immediate products of an independent sphere of organism, and not to be explained by anything lying outside of that sphere. The brain and the nerves have only the physical part of perception and motion, and to some extent the regulation of the functions, to perform; but the soul cannot but be considered as distinct from this activity of the nerves. The somatic theory, which confounds the two, will never be able to make a satisfac- tory distinction between palsy and imbecility, between convulsions and ravings, between sensuous hallucinations and insanity.(h) This theory, therefore, fails in affording support to any practical system of therapeutics. The general experience of modern times confirms the fact that medicines are of very little avail against mental derangements, and that the most essential results are attained by a strictly moral treatment, and corresponding regulation of diet and habits. (2) 4 The psychological theory, at its first inception, split upon the opposite rock, in denying the influence of the physical processes upon mental diseases, in the face of experience. In opposition to the somatists, it was thought necessary to exclude all natural causes from the explanation of the origin of mental affections, and to ascribe them to an act of voluntary self-enthralment, which, in all cases, was to be attributed to some prior moral excess or delin- quency incurred with a knowledge of the consequences. But a derangement of mind is not identical with sin. For though every vice, every sin, is an abnormity of the soul, yet every abnormity of the soul is not sin. A lunatic may be, in a human sense, innocent of positive guilt; and, on the other hand, the worst of criminals may retain his sanity. It is impossible to adhere to this doctrine in practice, without reducing the entire treatment of the disease to a system of rewards and punishments; and the vagueness of the idea of freedom and constraint, the impossibility of distinguishing between the moral thraldom of the criminal and that of the sick man, will throw into confusion the entire system of forensic psychology.(j) It is equally wrong to derive all diseases of the mind from the passions, although the latter may be important causes, and, in the more advanced stages, symptoms of insanity.(%) At the (g) Siebeld, Lehrbuch der Gericht. Med., Berlin, 1847, § 194; L. Krahmer, Handbuch der Gericht. Med., Halle, C. A. Schwetschke, 1851, § 126; Heinroth, Syst. der psychisch- gericht. Med. Leipsic, 1825; Kant, Anthropologie, Kénigsb. 1798; Metzger’s Ger. Med. Abhandl., Konigsb. 1803. (h) Lecons Cliniques sur ]’Aliénation Mentale, par Falret, lecon 1, p. 8, Paris, 1854. (4) The most thorough of the German advocates of the somatic theory is Friedreich, particularly in his: ‘ Historisch-kritische Darstellung der Theorien iiber das Wesen und den Sitz der psychischen Krankheiten,” Leipsic, 1836. (j) Etudes Medico-Psychologiques, M. Renaudin, p. 166, art. 30, Sur la responsa- bilité morale, Paris, 1854; Legons Cliniques de M. Falret, p. 11, discours d’ouverture, Paris, 1854; Manuel Complet de Médecine Légale, par J. Briand, sect. troisiéme, art. iii. p- 560, Paris, 1852. (k) Heinroth is the leading representative of the psychological theory. See his ‘Lehrbuch der Seelenkrankheiten,” Leipsic, 1818, and his “System der psychisch- gerichtlichen Medicin,” Leipsic, 1825. Dr. Mayo, in his ‘‘ Medical Testimony on Lu- nacy,” goes some distance in the same direction; and, as has been seen, very justly 6 81 § 84] PSYCHOLOGICAL THEORY. [BOOK I. same time, as will hereafter be more fully shown,(/%) there is in the mass of cases of insane convicts such an amount of responsibility as to require the infliction of a degree of punishment which, though different from that imposed on the sane, will yet be accompanied with a corrective as well as a preventive discipline. § 83. The intermediate theory is that to which the soundest psychologists now tend. “In the first place,” says Sir William Hamilton, ‘there is no good eround to suppose that the mind is situated solely in the brain, or exclusively in any one part of the body. On the contrary, the supposition that it is really present wherever we are conscious that it acts—in a word, the Peripatetic aphorism, the soul is all in the whole and all in every part—is more philo- sophical, and consequently more probable, than any other opinion. It has not been always noticed, even by those who deem themselves the chosen champions of the immortality of the soul, that we materialize mind when we attribute to it the relations of matter. Thus, we cannot attribute a local seat to the soul without clothing it with the properties of extension and place, and those who suppose this seat to be but a point only aggravate the difficulty. Admitting the spirituality of mind, all that we know of the relation of soul and body is that the former is connected with the latter in a way of which we are wholly ignorant; and that it holds relations, different both in degree and kind, with different parts of the organism. We have no right, however, to say that it is limited to any one part of the organism; for even if we admit that the nervous system is the one to which it is proximately united, still the nervous system is . itself universally ramified throughout the body; and we have no more right to deny that the mind feels at the finger-points, as consciousness assures us, than to assert that it thinks exclusively in the brain. The sum of our know- ledge of the connection of mind and body is, therefore, this: that the mental modifications are dependent on certain corporeal conditions; but of the nature of these conditions we know nothing. For example, we know, by experience, that the mind perceives only through certain organs of sense, and that through these different organs it perceives in a different manner. But whether the senses be instruments, whether they be media, or whether they be only partial outlets to the mind incarcerated in the body, on all this we can only theorize and conjecture.’’ (7) § 84. ‘The intermediate theory has at least not been rejected by standard Christian theologians. ‘‘The resurrection,” says Bishop PEARSON, “is not only in itself possible, so that no man with any reason can absolutely deny it, but it.is also upon many considerations highly probable, so that all men may very rationally expect it. If we consider the principles of humanity, the parts of which. we all consist, we cannot conceive this present life to be proportion- able to our composition. The souls of men, as they are immaterial, so they are immortal ; and being once created by the Father of spirits, they receive a subsistence for eternity; the body is framed by the same God to be a com- argues in favor of a discrimination of punishment between the malicious and the ~ unconscious insane criminal. Mayo, &c., 50, 51. (kk) Post, §§ 259-276. (/) Sir William Hamilton’s Lectures on Metaphysics, p. 356. 82 BOOK I, | CONNECTION BETWEEN BODY AND SOUL. [§ 84 panion for his spirit, and a man born into the world consisteth of these two. Now, the life of the most aged person is but short, and many far ignobler creatures of a longer duration. Some of the fowls of the air, several of the fishes of the sea, many of the beasts of the field, divers of the plants of the earth, are of a more durable constitution and outlive the sons of men. And can we think that such material and mortal, that such inunderstanding souls, should by God and nature be furnished with bodies of so long permansion, and that our spirits should be joined unto flesh so subject to corruption, so suddenly dissolvable, were it not that they lived but once, and so enjoyed that life for a longer season, and then went soul and body to the same destruction, never to be restored to the same subsistence? But when the soul of man, which is immortal, is forced from its body in a shorter time, nor can by any means continue with it half the years which many other creatures live, it is because this is not the only life belonging to the sons of men, and so the soul may at a shorter warning leave the body which it shall resume again.’’(m) To this may be added the authority of Isaac Taylor, who, in his “‘ Physical Theory of another Life,’’ after pointing out how completely the question whether the human soul is ever actually or entirely separated from matter is passed over by St. Paul, as an inquiry altogether irrelevant to religion, continues: ‘Let it be then distinctly kept in view that although the essential independence of mind and matter, or the abstract possibility of the former existing apart from corporeal life, may well be considered as tacitly implied in the Christian’s scheme, yet that an actual incorporeal state of the human soul, at any period of its course, is not involved in the principles of our faith any more than is explicitly asserted. This doctrine concerning what is called the immortality of the soul should ever be treated simply as a philosophical specu- lation, and as unimportant to our Christian profession.’’(7) “We are unable,” says Pascal, “to conceive what is mind; we are unable to perceive what is matter; still less are we able to conceive how these are united; yet this is our proper nature.”’ “Such,” says President Edwards, the first metaphysician of his country, and perhaps the first of his age, ‘‘seems to be our nature, and such the laws of the union of soul and body, that there never is, in any case whatsoever, any lively and vigorous exercise of the will or inclination of the soul without some effect upon the body in some alteration of the motion of its fluids, and especially of the animal spirits. And, on the other hand, from the same laws of the union of the soul and body, the constitution of the body and the motion of its fluids may promote the exercise of the affections, but yet it is not the body but the mind only that is the proper seat of the affections. The body of man is no more capable of being really the subject of love or hatred, joy or sorrow, fear or hope, than the body of a tree, or than the same body of man is capable of thinking and understanding. As it is the soul only that has ideas, so it is the soul only that is pleased or displeased with its ideas. As it is the soul only that thinks, so it is the soul only that loves or hates, rejoices (m) Pearson on the Creed, ed. 1853, p. 558. (n) Carpenter, Mind and Matter, by J. G. Millingen, M. D., M. A., pp. 128, 129, 130. 83 § 85] WHEN INSANITY IS RESPONSIBLE, [BOOK I. or is grieved at what it thinks of. Nor are these motions of the animal spirits and fluids of the body anything properly belonging to the nature of the affec- tions, though they always accompany them in the present state, but are only effects or concomitants of the affections that are entirely distinct from the affec- tions themselves, and no way essential to them; so that an unbodied spirit may be as capable of love and hatred, joy or sorrow, hope or fear, or other affections, as one is that is united to a body.’’(0) § 85. Effect of intermediate theory on insane responsibility.—The inter- mediate theory, as above stated, relieves the doctrine of criminal responsibility of some of its chief difficulties. If the somatic theory be correct, then a criminal propensity is a physical malformation, for which the defendant is no more responsible than he is for a malformation of the limbs. A squint in morals, to carry out a metaphor of Chief Justice Greson, is no more a fault than a squint of the eyes. Such a criminal may be prevented from future misconduct. But neither punitive nor reformatory discipline can be applied to him; the first because it is unjust, the second because it is hopeless. | On the other hand, if the psychological theory be correct, insanity, by be- coming an organic intellectual lesion, is as much withdrawn from the causal power of the will as it is on the somatic basis. It cannot be reached by penal discipline, for by the very hypothesis on which it is framed it rises above the action of the nervous and corporeal system. It cannot be reformed by bodily correction; and to attempt, therefore, by such correction to reach it, would be both unjust and nugatory. The intermediate theory, however, teaches us that insanity (with the excep- tion of idiocy and certain hereditary and organic types) is (1) in a large mea- sure the result of nervous and physical causes, often voluntarily induced, partly by the negligence and partly by the misconduct of the patient himself; and (2) that in such cases, by being made the subject of penal discipline, it may often be prevented or restrained. The remaining difficulty is to determine what are the cases to which such penal discipline is applicable. And here the analogies of the common law give us a safe test. Where mania-d-potu results from drink, the party becomes irresponsible. Where, however, he commits a crime in a drunken fit, this drunkenness avails him nothing, unless to relieve him from the implication of premeditated malice or complex fraud. Thus, when the fatal assault is conceived by a party when intoxicated, he is not presumed to act with that premeditation or that specific intention to take life which is necessary to subject him to capital punishment. So it is in insanity. Mania, when a permanent disorder of the intellect, by incapacitating the party from reasoning on the particular issue, relieves him from criminal responsibility. But a mere monomania, unaccompanied by intellectual lesion, cannot, for penal purposes, be considered else than voluntary passion. It may be in- voked to lower the grade from murder in the first to murder in the second degree, by depriving the intent of that coolness and speciality necessary to make up the former offence. But it can never be the basis of an acquittal on the ground of irresponsibility. (0) Edwards on Religious Affections, p. 15. 84 BOOK I.] BY WHOM ALLEGED LUNATICS ARE TO BE EXAMINED. [§ 87 Il. How MENTAL UNSOUNDNESS IS TO BE DETECTED. Ist. By whom. § 86. 2d. At what Time. § 96. (1.) Time of act.- § 95. (2.) At trial. § 97. (3.) At and after sentence. § 98. 3d. By what Tests. § 100. (1.) Physiognomy. § 100. (2.) Bodily health and temperament. § 102. (3.) Hereditary tendency. § 107. (4.) Conversation and deportment. § 110. (5.) Nature of act. § 112. (a.) Its insensibility. § 112. (b.) Its incongruity with antecedents. § 113. (c.) Its motivelessness. § 114. (d.) Its inconsequentiality. § 115. Ist. By whom. § 86. It has already been stated that the experience of medical experts, like that of experts in all other branches of science,(r) is part of the common law of the land. The illustrations of this principle are very numerous. Thus, if a question involving shipbuilding is the subject of judicial investigations, the testimony of a shipwright as to the meaning of terms of art, as well as to the general laws of the craft, enters into the basis upon which the case is tried. And if there has been any difficulty in the reception of the result of medical experience, when insanity is at issue, it has arisen from that occasional conflict of opinion among medical witnesses which the highest professional authorities have so frequently united in deploring.(s) § 87. “Certain recent actions at law in this country,’ says Dr. Hartshorne, ‘“‘in which heavy damages have been incurred by parties charged with arrest- ing and detaining an alleged lunatic against the will and interests of the latter, have led to greater circumspection, not only among the friends of lunatics, in the procurement of proper medical certificates and other forms required for the admission of insane patients into hospitals, but among the (r) “C’est aux lumiéres et & la probité des médécins que doit étre exclusivement réservé le droit de juger chaque espéce de aliénation mentale, et de donner aux tribu- naux les seuls élémens sur lesquels puissent étre raisonnablement fondés des jugemens équitables.”—Méd. Léq., M. Orfila, tome i. p. 360. Paris, 1848. (s) Lettsomian Lectures on Insanity, by Forbes Winslow, M. D., D.C. L., late Presi- dent of the Medical Society of London, &c.; London, John Churchill, New Burlington Street. Medical Testimony and Evidence in Cases of Lunacy, being the Croonian Lec- tures delivered before the Royal College of Physicians in 1853, with an essay on the conditions of mental soundness, by Thomas Mayo, M. D., F.R.8.; London, John W. Parker & Son, West Strand, 1854. Marc, Die Geisteskrankheiten, in Beziehung auf die Rechtspflege, i.p. 8. And see also particularly Mittermaier’s late very interesting essay, ‘Die Stellung und Wirksamkeit der Sachverstiindigen in Strafverfahren,” in “Archiv fiir Preussisches Strafrecht,” Berlin, 1853. 85 $ 88] EXAMINATION OF ALLEGED LUNATICS. [BOOK I. medical advisers in the preliminary examinations of the patients, and the fill- ing up of their certificates. The principal hospitals for the insane of the ’ United States, have printed forms and obligations, which are furnished to the friends of patients to be filled up and signed according to the law of the State and the rules of the hospital. The form of the medical certificate generally requires the patient to have been seen and examined by the physician signing, on the day on which the certificate is dated. In all cases the certificate is expected to apply only to the actual condition of the patient at the time of signing, and to be used without delay in order to be available. -The medical certificate must always be accompanied by a formal application for admission of the patient, signed by a responsible guardian, near relative, or friend. These papers have also annexed to them a series of questions relating to the past history and existing condition of the patient, the peculiar symptoms of the case, and the probable cause of the attack; which questions are to be answered by the friends and relatives, and the attending physician. Some hospitals require the signature of two physicians to the medical certificate, neither of them, of course, being connected with the hospitals applied to. The State Lunatic Hospital of New Jersey requires the medical certificate to be formally deposed to by two physicians before a magistrate. Patients sometimes obtain their discharge on a writ of habeas corpus, by proving their apparent fitness to be at large, but are generally removed by friends or dis- charged when sufficiently recovered, at the discretion of the superintendent. We are not aware of any legal restriction in this country on the liberation of insane patients, except in cases of homicidal or otherwise dangerous luna- tics, who have been confined by order of a magistrate, or by a court of law. Such patients can only be released by an authority similar to that which first committed them. There are patients of this class now in durance at the Eastern State Penitentiary of Pennsylvania, and in different State Asy- lums.’’(7/) § 88. It is well to keep in mind the suggestions of Hoffbauer in regard to the importance of an adaptation, by the inspecting physicians, of his own method of examination to the character of the subject. The uneducated and the réfined, the bashful, timid, and retiring, and the cunning, insolent, and hardened, the eccentric, the victim of fixed ideas, and the lunatic, each requires a different style of treatment. The physician must work into the heart of the ignorant man by reference to objects palpable to the sense, and must address the man of education in the spirit which animates him. He must approach the bashful, the timid, and the morose with cordiality and affability, and exer- cise practical tact, cireumspection, and adroitness, in conversing with the cun- ning, the hardened, and the insolent, impressing them with respect for his personal and mental qualifications. On the whole, the tone of the subject must regulate the tone of the examiner. But where one style of treatment is found of no avail, recourse may be had to the opposite one. Where the patient sits immovable as a statue, without answering any question addressed him, (y) Taylor’s Med. Jurisprudence, by Hartshorne, Phil. 1853, 556, 562. 86 BOOK I.] BY WHOM TO BE CONDUCTED. [$ 91 which often occurs in cases of deeply-seated melancholy, further questions should not be asked, but observation alone resorted to.(z) § 89. That a man is of sound mind, will generally be sufficiently manifest to a prosecuting officer of discretion; but whether a man is really, or only apparently deranged, is a question which cannot be decided with the certainty belonging to science except by a physician; nor is it possible, without a thorough knowledge of psychological medicine, to pronounce upon the influ- ence exercised by specific forms of disease upon given actions. (a) § 90. It should not be forgotten, however, that it is of much importance in the diagnosis of insanity, that the proper legal and medical functionaries should act <2 common. Written explanations are here of much less value than oral intercourse, where a few words will often suffice to remove a difficulty, to correct an error, or to supply an omission. In visiting a deranged culprit for this purpose, the prosecuting officer should always invite the physician to accompany him. ‘They may then alternately converse with the accused, whereby both the morbid and criminal peculiarities of the subject will be clearly unfolded to them both. It is well established that a man of unsound mind will act very differently, according as he views the persons before whom he stands with fear, respect, or confidence. It is sometimes advisable to invite the physician’s attendance at an official hearing, where, under the semblance of a mere occasional and unofficial companion, he may make a diagnosis the more accurate because unsuspected. § 91. It is not to be denied that a lay observer, or an unassisted judge or jury, may be able to distinguish a case of fully developed and clearly manifested insanity ; but, aside from the necessity of a knowledge of all the particular re- lations existing between a given state of disease and a given act, there can be no proper foundation for the infliction of punishment in any case, where the judgment of which it is the execution is not based on the greatest attainable amount of certainty. But this certainty can be no other than that which bears the seal of technical science. Nor will a juryman, if properly tender of his conscience and of public opinion, base his verdict upon other evidence than that of those best able from long training and close attention, to understand the features of the case. In some cases the difference between a scientific, or technical, opinion, and that of a layman, is not so much in the results attained, as in the guarantee afforded by the superior attainments and more minute ex- pertness of the man of science. The declaration of such a man is insured against the possibility of error to the full extent of the protection of science in its present stage of development. Pro foro this degree of certainty is suffi- cient, because it is the highest attainable; but the same cannot be said of any other.(b) (z) J. H. Hoffbauer, Die psychischen Krankheiten in Bezug auf die Rechtspflege, Berlin, 31. (a) Notwithstanding Regnault’s elaborate disquisition, ‘‘ Du degré de competence des Médécins dans les questions judicaires relatives aux alienations mentales,” Xc., Paris, 1828, and notwithstanding the occasional contemptuous remarks of Nisi Prius judges in the hurry and irritation of trial, this position is recognized, as has already ’ been seen, by the uniform practice as well as the recognized theory of the law. See ante, § 45, n. See also Marc, die Geisteskrankheiten in Beziehung auf die Rechtspflege, vol. i. 98. (6) Schtirmayer, § 512. 87 § 94] MEDICAL WITNESSES. [BOOK I. § 92. The American authorities falling under this head may be considered as establishing the following points :— § 93. (a.) Professional men, experts in psychological medicine, who have personally examined the party, may be asked whether he was insane or not.(c) Such, in fact, has been the uniform and undisputed course in practice in all cases where medical testimony is taken on this point. The English rule is equally definite. (d) § 94. (b.) Even though the witness has not had the opportunity of personal inspection, he may be asked for his opinion on an assumed state of facts, or, in several of the States, upon the evidence given on trial, if he heard all of it, viewing it as a case stated.(e) In Massachusetts and New York, however, this position is limited, and there, as well as in England, the settled opinion now seems to be that medical witnesses can only be asked their opinion on the whole case when the facts are admitted, or not disputed; but that when there is a conflict as to testimony, such a question cannot be put; these courts holding, at the same time, the right to ask their opinion on a supposed state of facts.(/) But, however ascertained, medical opinion enters into the merits of the case. It has been already shown that the common law consists of the wisdom of the particular age applied to the exigencies of the particular case; and in this sense it includes not only the decisions of the courts, but the opinions of ex- perts on the particular branches to which their attention has been devoted. (q) Thus the evidence of persons acquainted with navigation is admissible upon the facts as developed in evidence in cases of collision,(h) or loss from alleged unseaworthiness ;(7) of persons conversant with handwriting, as to whether a (c) Com. v. Rogers, 7 Metc. 500; M’Allister v. State, 17 Alab. 434; Clark v. State, 12 Ohio, 483. (d) R. v. Searle, 1 Mood. & Rob. 75; R. v. Offord, 5 C. & P. 168. See a learned note on this point in 7 Bost. Law Rep. 692. M. Briand (Méd. Lég. 552, Paris, 1852) says: “Appelés a faire un rapport sur l’état moral d’un prevenu ou d’un accusé, les médecins ne s’immiscent point alors dans les fonctions des juges ou des jurées, mais ils eclairent la conscience des uns et des autres.”? See also Manuel de Méd. Leg. de M. Orfila, t. i. 399, Paris, 1848. In Elwell’s Malpractice and Medical Evidence, chapters 18 and 19, this topic is ably treated. (e) See Com. v. Rogers, 7 Metc. 500; People v. Lake, 2 Kernan (N. Y.), 358; People v. Thurston, 2 Parker, C. R. 49; Negro Jerry v. Townshend, 9 Md. 145; M’Allister v. State, 17 Alab. 434; Clark v. State, 12 Ohio, 483; Com. ». Wood, MSS. Phil. 1836 ; Com. v. Mosler, MSS. Phil. 1845. (/) In New York, a medical witness who had been present during a trial for murder was asked by the defendant what, in his opinion, on the facts stated, was the state of the defendant’s mind on the night of the killing. The court excluded the evidence. But the defendant was allowed to ask what the opinion of the witness was on a sup- posed case corresponding to the testimony; and held, further, that the testimony might be read to him, and his opinion asked, supposing that state of affairs to exist. Held, that here was no ground for exception. People v. McCann, 3 Parker, C. R. (N. Y.) 272. This seems now to be the opinion of the Supreme Court of Massachusetts, Wood- bury v. Goodyear, 7 Gray, 467; and of the U. S. Circuit Court in that State, U. S. v. McGlue, 1 Curtis, 1. See the restriction of medical witnesses to hypothetical cases attacked in the Boston Law Reporter for July, 1859, and defended in Elwell’s Malprac- tice and Medical Evidence, p. 310. The English cases to the point in the text are R. v. Wright, R. & R. 451; R. v. Frances, 4 Cox, C. C. 57; Opinion of Judges, post, n. (r); though see contra, R. v. Searle, 1 Mood. & Rob. 75; R. v. Offord, 5 C. & P. 168. (g) See on this point ante, § 45, n. (h) Malton v. Nesbit, 1 C. & P. 70; Fenwick v. Bell, 1 C. & K. 312; Thornton »v. Royal Exch. Co., Peak, 25. (2) Beckwith v. Sydebotham, 1 Camp. 116. # 88 BOOK I.] ADMISSIBILITY OF MEDICAL TESTIMONY. [$ 94 paper was forged ;(j) of seal engravers, as to the genuineness of an impres- sion ;(/) of artists, as to whether a picture is an original or a copy ;(l) of postmasters, as to the genuineness of a post mark ;(m) of scientific engineers, as to the effect of an embankment on a harbor ;(n) of practical surveyors, as to whether certain marks were intended as boundaries or terriors ;(0) and of naturalists, as to whether the habits of certain fish were such as to enable them to overcome certain obstructions in a river.(p) And so nothing is more com- mon than to examine a surgeon as to whether death resulted from natural causes, or from certain artificial agencies which may be the subject of in- quiry.(q) On this principle the opinion of medical men as to whether par- ticular symptoms, supposing them to exist, constitute insanity, is part of the law of the case. It should be observed, however, as the cases in the note show, that the witness is not to be asked whether the evidence shows that the patient was insane—for that, indeed, would be taking the jury’s place—but whether, if a certain state of facts be true, the inference of insanity would result there- from. (7) (j) Revett v. Braham, 4 T. R. 497; Hammond’s Case, 2 Greenl. 33; Moody v. Rowell, 17 Pick. 490; Com. v. Carey, 2 Pick. 47; Lyon v. Lyman, 9 Conn. 55; Hubley v. Van- horne, 78. & R. 185; Lodge v. Phipher, 11 8. & R. 333. (k) Folkes v. Chadd, 3 Dougl. 157. (1) Ibid. (m) Abbey v. Lill, 5 Bing. 299. (n) Folkes v. Chadd, 3 Dougl. 157. (0) Davis v. Mason, 4 Pick. 156. (p) Cottrill v. Mason, 3 Fairf. 222. (q) See cases quoted in Wharton on Homicide, 241-4; and see also 1 Stark. Ev. 154; Phil. and Am. on Ey. 899; 1 Green. on Ev. § 440. (r) See 3 Greenlf. on Ev. § 5. In answer to an inquiry of the House of Lords, whe- ther ‘‘a medical man, conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial and the examination of all the witnesses, can be asked his opinion as to the state of the pri- soner’s mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act that he was acting contrary to law, or whether he was laboring under any and what delusion at the time,” the English judges replied: ‘‘We think the medical man, under the circumstances supposed, can-: not in strictness be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide, and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But when the facts are admitted, or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right.” In this country, as has been seen, the stricter practice, when medical men are exa- mined as experts, is to ask their opinion as to a hypothetical state of facts. Ante, note (e). If they happen to have been present during the whole trial, they may be asked their opinion as to the particular facts, supposing them to be true; but the deter- mination of the truth or falsity of the evidence itself should be reserved exclusively for the jury. “The opinions of professional men on a question of this description,” says Chief Justice Shaw, “‘are competent evidence, and in many cases are entitled to great con- sideration and respect. The rule of law, on which this proof of the opinion of witnesses, who know nothing of the actual facts of the case, is founded, is not peculiar to medical testimony, but is a general rule, applicable to all cases, where the question is one de- pending on skill and science in any particular department. In general, it is the opinion of the jury which is to govern, and this is to be formed upon the proof of facts laid before them. But some questions lie beyond the scope of the observation and experience of men in general, but are quite within the observation and experience of those whose peculiar pursuits and profession have brought that class of facts fre- quently and habitually under their consideration. Shipmasters and seamen have peculiar means of acquiring knowledge and experience in whatever relates to seaman- ship and nautical skill. When, therefore, a question arises in a court of justice upon that subject, and certain facts are proved by other witnesses, a shipmaster may be 89 § 94] EXAMINATIONS OF ALLEGED LUNATICS. [BOOK I, (c.) The better opinion has been that witnesses, who are not experts, who have for a given time had the opportunity of observing the patient, may be asked their opinion as to his sanity.(s) Such witnesses cannot, of course, be asked his cpinion as to the character of such facts. The same is true in regard to any question of science, because persons conversant with such science have peculiar means, from a larger and more exact observation, and long experience in such department of science, of drawing correct inferences from certain facts, either observed by themselves or testified to by other witnesses. A familiar instance of the application of this prin- ciple occurs very often in cases of homicide, when, upon certain facts being testified to by other witnesses, medical persons are asked whether in their opinion a particular wound described would be an adequate cause, or whether such wound was, in their opinion, the actual cause of death, in the particular case. Such question is commonly asked without objection; and the judicial proof of the fact of killing often depends wholly or mainly upon such testing of opinion. It is upon this ground that the opinion of witnesses who have long been conversant with insanity in its various forms, and who have had the care and superintendence of insane persons, are received as compe- tent evidence, even though they have not had opportunity to examine the particular patient, and observe the symptoms and indications of disease at the time of its sup- posed existence. It is designed to aid the judgment of the jury in regard to the influence and effect of certain facts which lie out of the observation and experience of persons in general. And such opinions, when they come from persons of great experience, and in whose correctness and sobriety of judgment just confidence can be had, are of great weight, and deserve the respectful consideration of a jury. But the opinion of a medical man of small experience, or of one who has crude and visionary notions, or who has some favorite theory to support, is entitled to very little consider- ation. The value of such testimony will depend mainly upon the experience, fidelity, and impartiality of the witness who gives it. “One caution in regard to this point it is proper to give. Even where the medical or other professional witnesses have attended the whole trial, and heard the testimony of the other witnesses as to the facts and circumstances of the case, they are not to judge of the credit of the witnesses, or of the truth of the facts testified to by others. It is: for the jury to decide whether such facts are satisfactorily proved. And the proper question to be put to the professional witnesses is this: If the symptoms and indica- tions testified to by the other witnesses are proved, and if the jury are satisfied of the truth of them, whether in their opinion the party was insane, and what was the nature and character of that insanity; what state of mind did they indicate; and what they would expect would be the conduct of such a person in any supposed circumstances.” See 1 M. & Rob. 75; Com. v. Rodgers, 7 Metc. 5; Elwell’s Malpractice and Medical Evidence, p. 310. On atrial for murder a medical witness testified that he saw defendant on the evening of the day after the killing, conversed with him, and then thought him deranged ; that he thought the insanity was delirium tremens; that he knew defendant’s habits of drinking, and supposed drinking to be the cause of his insanity; that he had been present and heard all the evidence. The witness then stated, under objection, how long he thought defendant had been in this state of delirium, but was not allowed to state whether, in his opinion, he was in this state on the night of the alleged killing. It was held that this was no error. People v. McCaun, 3 Parker, C. R. (N. Y.) 272. (s) Clary v. Clary, 2 Iredell, 78; Clark v. State, 13 Ohio, 483; Grant v. Thompson, - 4 Connec. 203; Harrison v. Rowan, 3 Wash. C. R. 580; Rambler v. Tryon, 75. & R. 90; Wogan v. Small, 11 8. & R. 141; Morse v. Crawford, 17 Vt. 499; Lester v. Pitts- ford, 7 Vt. 158; Gibson v. Gibson, 9 Yerger, 329; Potts v. House, 6 Georg. 324; Colver v. Haslam, 7 Barbour, 374, which case, however, was recorded in Dewitt v. Barley, 5 Selden, 371; Baldwin v. State, 12 Missouri, 223; De Whitt v. Barley, 13 Barbour, 550; Kinne v. Kinne, 9 Conn. 102; Norris v. State, 16 Alab. 776; Wheeler v. Wheeler, 3 Hagg. 574; and see 7 Bost. Law Rep. (N. 8.) 696, where these cases are cited. The opinions of witnesses, not medical men, or experts, and not the subscribing wit- nesses to a will, cannot be given on the question of the sanity of the testator. [Dewio, WILLARD, and Moors, JJ., dissenting.] Dewitt v. Barley, 5 Selden (N. Y.), 371. It is said, however, that the opinion of a witness, acquainted with the person whose capa- city is in question, and founded on his own observation, is admissible on the question of sanity or insanity ; certainly if the facts on which his opinion rests are also stated. [Per Denio, J.] Dewitt v. Barley, 5 Selden (N. Y.) 371. In Maryland, a witness familiar with the grantor in a deed for a long time, both” before and after its execution, may, after testifying to the grantor’s state of mind before its execution, be further examined as to acts of insanity subsequent to that period. Negro Jerry v. Townshend, 9 Md. 145. 90 BOOK 1.] MEDICAL EXAMINATIONS. [$ 96 examined as to their opinions on a case stated, or on the facts developed in the case on trial, but only as to the results of their personal observation, just in the same way that a man ploughing on the shore can be examined as to the fact of a ship striking a shoal before him, when he could not be admitted to prove the cause of the disaster. And, on this principle, it was long held admissible to ask subscribing witnesses as to their opinion of the testator’s sanity at the time of the execution of the will.(¢) Lately, however, there has been a disposition to restrict this rule to subscribing witnesses. (a) (d.) Books on insanity, and, in fact, scientific books or papers generally, are inadmissible as evidence to the jury.(b) Nor can they be read by counsel in their speeches to the jury, unless by consent.(c) It has been said in Iowa, however, that a physician can read in his testimony “the views and opinions of distinguished writers,’’(d) and in England it would seem that a physician may be asked as to the grounds of his judgment, “which may be, in some > degree, founded on books as a part of his general knowledge.’’(e) In those States where the jury are, by the Constitution, judges of the law as well as of the fact, such books may, perhaps, be read in addressing the jury as part of the law of the case. 9d. At what time examinations should be made. § 95. There are three different times in which the conduct of the accused may become the subject of a forensico-psychological investigation: 1, at the commission of the deed; 2, during the trial; and 3, after sentence pronounced. At each of these periods, the judge has a separate point of view from which to regard the state of mind of the defendant, in each the purpose of the inquiry is different, and in each the interrogations to be directed to the physician must be modified accordingly. (w) § 96. In regard to the first point, the questions to be asked the physician _ should be, in general, whether a diseased mental state attended the commission of the act, wherein the disease consisted, and whether the mental and moral functions exercised and implicated in the perpetration, were of such a nature that either a, there was no consciousness of criminality and no freedom of volition, or b, the possibility of such consciousness and spontaneity was ex- cluded, or c, both the one and the other were incapable of ascertainment, and must be left in doubt. The practice which has lately grown up, of interrogating as to a conclusion of law (e. g. was the defendant capable of distinguishing right from wrong, or was hea free agent), instead of as to a state of facts (e. g. — (t) Chase v. Lincoln, 3 Mass. 237; Poole v. Richardson, ib. 330; Rambler v. Tryon, 78. & R. 90; Buckminster v. Perry, 4 Mass. 593; Grant v. Thompson, 4 Conn. 203; Sheafe v. Rowe, 2 Lees R. 415; Wogan v. Small, 118. & R. 141. (a) Com. v. Wilson, 1 Gray, 337; Cocks ». Purdy, 2C. & K. 270; Dewitt v. Barley, 5 Selden, 371. °(b) Com. v. Wilson, 1 Gray, 338 ; Collier v. Simpson, 5 C. & P. 73; Cocks v. Purdy, 2C. & K. 270; Gehrke v. State, 13 Texas, 568 ; Carter v. State, 2 Carter, 617, (c) Boston Law Reporter, May, 1854, p. 9. (d) Bowman v. Woods, 1 Iowa R. 441. (e) Collier v. Simpson, 5 C. & P. 73. (u) See Schiirmayer, § 516, from whence this head is generally drawn. 91 §$ 100] WHEN AND HOW TO BE MADE. [BOOK I. was he laboring under mental disease, and if so, what), is not only false in theory, but pernicious in result. -§ 97. The second period of time becomes of particular interest in our Ameri- can Jurisprudence, from the fact that when a party alleged to be insane is put on his trial, if insanity be pleaded, the jury are specially sworn to determine the preliminary issue whether the defendant be insane ai the time of trial. If the fact be found in his favor, he is confined under special sanctions. If other- wise, the trial proceeds on the main issue. § 98. The third period of time, at which the state of a culprit’s mind is open to medical investigation, is after the close of the trial, and before the execution of the sentence. A man of unsound mind is incapable of under- standing the justice of his sentence, or of recognizing a punishment in the ~ evil inflicted upon him. In many cases also the evil will aggravate his dis- ease. For all these reasons it is necessary to be certain that a convict is so far in the possession of all his faculties, that the object of the law in subjecting him to punishment will be answered. ‘The interrogations to be submitted to the physician are to be framed upon this simple principle ; and it is self-evident that only such derangements will here come in question as are clearly mani- fest, and as clearly exclude the possibility of the prisoner’s understanding the reason of his punishment. § 99. It would be a proper regulation to cause every convict, before under- going his punishment, to be examined in body and mind by the physician, for the purpose of ascertaining his capacity for the ordeal. Even where the - general fitness of the subject is undoubted, there are frequently personal defects which require attention in the treatment of the prisoner during confinement. In several of the German States this precaution is observed—where a convict is found to be insane, he must be subjected to the proper treatment. If a cure is effected, the question whether he is now able to sustain the punishment without danger of relapse or other injury, is to be decided by the forensic physician, upon a careful investigation of all the symptoms and attendant circumstances. 3d. By what Tests. (1.) Phystognomy.(v) § 100. The general questions in relation to feigned insanity are noticed under a subsequent head. (vv) “Close attention,” says Schiirmayer,(w) “should be first directed to the entire exterior of the subject, his posture, his motions, his gestures, his eye, (v) The features of the face, says Falret, change at each instant or constantly pre- serve the same expression ; the lips, the cheeks, the nostrils, the eyebrows, the eyelids, frequently show convulsive movement; it is the same with regard to the muscles of the eye, and under the influence of these convulsions, the look is troubled, bewildered and unsteady. Legons Cliniques sur ]’Alienation Mentale, M. Falret, huitiéme lecon, p. 219. Paris, 1854; see also Orfila, Med. Leg. i. p. 379. Paris, 1848. (vv) Post, § 127. (w) Gerichtliche Medicin, § 529. 92 BOOK I.] TESTS OF INSANITY—PAYSIOGNOMY. [$ 101 his words, his intonation, and above all the first impression produced upon his mind by the appearance of the physician. What most distinctly characterizes a mental disease, and is never misunderstood by a skilful physician, is the physiognomy of such a patient. The eye of a madman is the mirror of his soul. He lacks the calm unobstructed gaze peculiar to the sane, untouched by passion or excitement.”? ‘‘Look,’’ says Heinroth,(#) “upon the cunning leer of a lunatic, the savage glare of a maniac, the lack-lustre eyes of a splenetic, or the meaningless stare of an imbecile; such things cannot be counterfeited.” (y) The form of the skull is often peculiar in every description of mental disease, but is particularly noticeable in the case of Cretins and natural fools. § 101. The expressions of the eye(z) and of the nose(a) have been very capably exhibited by two eminent physiognomists. The latter feature has been examined with peculiar ability by Hoefling.(b) “In the apparently joyous countenance of a laughing madman,”’ he tells us, “the upward traction of the sides of the nose, nevertheless, indicate unmistakably the presence of pain, and this expresses much of the physiognomic peculiarity of such unfor- tunates.(¢) In like manner the simple unmeaning smile of imbecility is marked by the form and shape of the nose, which, with its downward, circular open- ings, and the tension of the skin on the peak, expresses a torpor, while in the laugh of a sane man the nostrils contract, and become elongated, without a departure of the septum from its horizontal position.’’? The mouth of the simpleton twitches with a constant unmeaning smile, accompanied with a low, inarticulate and thoughtless mumble, and the imbecile is almost always found, sitting or standing, with parted lips.(d) ‘With many,’ says Schiirmayer, “the mouth is constantly in motion, as if they were talking to themselves. In the paroxysms of mania there is a convulsive distortion or contraction of the mouth. Receptivity for certain external impression is generally low, particu- larly in the case of impressions accompanied with pain,(e) of cold, heat, and certain medicines.” (x) System der gerichtlich psychischen Medizin. Leipsic, 1825, p. 343. (y) Drawings, very well executed, are to be found in Morrison’s Outlines of Mental Diseases. London, 1829, and in Esquirol, Des Maladies Mentales, Paris, 1838. (z) Loebels, Grundriss der Semiologie des auges. Jena, 1817, p. 27. (a) Hoefling, in Caspar’s Wochenschrift, 1834. (b) Ibid. (c) “To represent the prevailing character and physiognomy of a madman, the body should be strong and the muscles rigid and distinct, the skin bound, the features sharp, the eye sunk; the color of a dark brownish yellow.tinctured with sallowness, without one spot of enlivening carnation; the hair sooty black, stiff and bushy, or of a pale, sickly yellow with wiry hair.”—Anatomy of Expression. Sir Charles Bell, London, 1844. ‘‘His burning eye whom bloody strokes did stain, Stared full wide and threw forth sparks of fire ; And more for rank despight than for great pain, Shak’d his long locks, colored like copper wire, And bit his tawny beard to show his raging ire.’’ [Faery Queen, Book ii. canto 4, v. 15.] (d) Danz, Allgemeine Medizinische Zeichenlehre. Heinroth’s edition. Leipsic, 1812, p. 353. (e) Compare Friedreich, Handbuch der Allgemeine’s Pathologie der psychischen Krankheiten. Erlangen, 1839, p. 121. 93 § 103] BODILY HEALTH AND TEMPERAMENT. [BOOK I. (2.) Bodily Health and Temperament. § 102. Hereditary tendency to insanity will in a moment be considered. Under the present head, it is proper to notice the importance of the attention of the medical examiner being turned to temperament, disposition, and age; in the case of females, to the development of the functions of menstruation, preg- nancy, delivery, suckling, to mental characteristics, powers, and habits; to the condition in life and profession ; to the questions of rest and exercise, sleep, and watching; to excessive evacuations, particularly, if connected with sexual eratifications; to sexual abstinence; to bodily injuries, particularly in the head, inflammatory affections of the brain or its membranes, diseases of the heart, hemorrhoids, obstructions of the abdomen,(f) and to cutaneous diseases. § 103. To what extent insanity is accompanied with physical disorganiza- tion,-is illustrated by a case mentioned by Wigan in his remarkable work on the duality of the mind.(g) ‘‘The gentleman held a situation in which he had many younger persons under him. I purposely leave the designation obscure. He had risen to the head of the office by long and exemplary services. He was a widower, and had a considerable family, all of whom, however, died in their youth. He exercised a parental control over his subordinates, and was extremely respected by every one who knew him. His salary was ample, his excessive benevolence had, however, always kept him poor, but as his style of living did not imply the expenditure of more than half his income, he had the reputation of wealth. Gradually, towards the age of sixty, this gentleman became garrulous and light in his conversation, and the others in the office suspected him to have been drinking. He had many rebuffs from the persons under his command, but this in no degree changed the indecorous levity of his conversation, which had formerly been remarkably dignified, and as reserved as was compatible with his excessive benevolence of disposition. Months and months passed on, his language became gradually worse, and at last was of the most depraved obscenity. This shocked and disgusted his juniors, and he was seriously threatened with exposure by them. The propensity was checked for a while, but after repeated offences and repeated forgiveness by the young men, they made a formal complaint to his superiors. The offender was taken to task very seriously, but, as the young men had given rather a lenient repre- sentation of his conduct, he was permitted one more trial, with the assurance that his next offence would be followed by dismissal. There was soon an opportunity of putting the threat in force, for his conduct and conversation became more and more gross and disgusting. He was dismissed. Having made no provision, he suddenly found himself utterly destitute, but did not make known his position. He packed a bundle of necessary clothes, put in his pocket whatever money and trinkets he possessed, and wandered about the country without aim or object. Every one lost sight of him for two or three months, when he was found in a remote part of the kingdom literally dead (f) “Unterleibstockungen,” Schtirmayer. Ons A new view of Insanity, &c., by A. L. Wigan. London, 1844, p. 81. 4 BOOK I.] PATHOLOGICAL TESTS. [$ 108 on a dunghill, where it is supposed he had laid himself down for warmth ; his money was gone, and from the state of the stomach and intestines, it is pro- bable that he had died of want of food as the immediate cause, but on examining the interior of the skull, there was found extensive softening and disorganiza- tion of the left cerebrum, and the other was not free from disease. He could not have lived long; though, under proper care, the disease would not have been immediately fatal.’’(h) A diminution of sensibility, says M. Falret, in his late work,(7) is not of common occurrence in mental diseases, its exaltation being much more fre- quent. It is proper, however, to state that deranged persons are generally as sensible of temperature and impressions as persons ordinarily are. Lesions of the sensibility, however, are observable in all kinds of insanity, and especially in those cases in which mystical ideas are predominant, in demonomania and paralytic insanity. General insensibility has been known to take away from some madmen the sense of their own existence. M. de Foville cites the exam- ple of a man who thought he had died at the battle of Austerlitz, at which he received a severe wound. His insanity consisted in his inability to recognize and feel his own body. When any one inquired after his health, it was cus- tomary for him to reply, ‘“You ask me how father Lambert is? but father Lambert is no more, he was killed by a bullet at Austerlitz. That which you see here is not him, but a machine which they have made to resemble him, and which is very badly made, so try and make another.” Never, in speaking of himself, did he say “‘me” (moi), but ‘that?’ (cela). This man fell several times into a complete state of immobility and insensibility, which lasted several days. Sinapisms and blisters applied to guard against these accidents, never produced the least symptom of pain. He often refused to eat, saying, “ca mavait point de ventre.’’ Esquirol was unable to discover any sign of pain in passing a pin through the skin of the arm of a demonomaniac, who asserted that he no longer felt anything, and who imagined that his body had been carried away by the devil. In regard to anomalies of general sensibility associated with no illusion, there are madmen who appear insensible to the ordinary causes of pain. Esquirol speaks of an idiot girl who was in the habit of scratching a lump she had upon her cheek, and did not stop until she had perforated it, and, after having performed this perforation, she enlarged the wound by con- tinually pulling at it with her finger. Deranged persons often cut them- selves in different parts of the body without appearing to suffer. But the ereatest phenomenon of insensibility is the indifference with which persons afflicted with insanity support cold. They have been known to expose them- selves in the open air, to sleep upon the ground, flagstones, and the floor, when the ice and snow caused persons warmly clad to shiver. And impru- (h) Generally of all the causes of mental alienation, the most frequent, without doubt, are cerebral affections or some alteration of the encephalic organ, and perhaps we should agree with Haslam in saying, that the primitive cause of mental derange- ment is always to be found in these alterations.x—J. Briand, Méd. Lég., p. 544. Paris, 1852. (7) Lecons Cliniques de l’Alienation Mentale, par M. Falret. Septiéme lecon, p. 185, Paris, 1854. 99 §$ 104] SENSIBILITY—HUNGER—PULSE. [BOOK I. dences like these appear to have a less dangerous influence upon the insane than upon others. This fact, however, has been much exaggerated, and in many instances the ordinary effects produced by cold, are observable in the deranged. These unfortunates are so exposed to freezing, that in many estab- lishments there is an express law to visit, morning and evening, and wrap in flannel the feet of those whose condition causes these dangerous consequences to be dreaded. (7) § 104. Hunger and thirst are usually quite vivid, digestion varies, while the bowels are almost invariably obstructed. The skin is usually dry, rough, and inactive. The presence of almost all persons of unsound mind is distin- guished by a peculiar specific smell.(%) Others show themselves equally indifferent to heat. There are some who walk and sleep entirely naked, in the sun upon the hottest days, and who can look fixedly, for a long time upon this planet, without being dazzled by it. The genital functions are ordinarily preserved by the insane; sometimes, indeed, their activity is increased, although the mental disease may not be of erotic origin. This super-excitation of the genital organs, independent of physical or moral erotomania, is particularly observable in agitated delirium ; whilst in despondent delirium they are inactive, at least if it have not love for a cause or object. The cases are rare, however, where the sexual organs are attacked with insensibility or impotence, except in general paralysis. The aptitude of man and woman for the venereal act and for fecundation is not lost; only in insanity as in sound mind, the rapid succession of ideas, the violence or tenacity of pre-occupations foreign to amorous desires are capable of bringing on an inactivity of the genital functions. The pulse forms no test. M. Jacobi has instituted experiments in a large number of cases of the different forms of mental unsoundness, indicating at the same time the relative pulsations of the several arteries, auscultating the heart, and counting the number of inspirations and expirations. The attempt to deduce a fixed rule, however, was in vain. ‘I had the vexation,”’ he tells us, “‘to see that my researches, so conscientiously made, did not fulfil the end I had proposed; and I saw that it was impossible to establish the necessary connection between the different pathological states of the intellect and feelings, and the observations I had collected on the state of the circulation, the respi- ration, and the temperature of the skin, in the insane.’’(/) The secretions, and particularly the perspiration, are imperfectly performed in the majority of insane cases. In these cases there is a dry skin of an un- healthy color, and the exhalation of a disagreeable smell. They do not grow thin, but even become fat, although eating little, because they perspire badly. They urinate a great deal, and the passage of urine is frequent as is common (j) “Dans le plus haut degré de la manie les malades oublient leurs besoins, et sentent 4 peine, ou pas du tout, la douleur, le froid et le chaud.”—Manuel de Méd. Léa. M. Orfila, tome i. p. 377. Dr. Rush makes insensibility to the weather, particularly cold, a marked test. (&) Compare Hill’s Essay on the Prevention and Cure of Insanity. London. 1814. p. 401. Erhard in Wagner’s “ Beitriigen zur Philosophischen Anthropologie,” vol. i. Vienna, 1794, p. 111. Milling’s Mentis Alienationum Semiologica Somatica. Bonn. 1828. § 15. Burrow’s Commentaries, p. 297. (/) Jacobi, Annales Medico-Psychologiques. 96 BOOK I.] PATHOLOGICAL TESTS—RESPIRATION, [$ 106 in all nervous disorders. Constipation is an almost habitual attendant of the disease. Without being oppressed, the respiration in the insane is very often un- equal, hurried, diminished, interrupted, and sobbing. Their breath is often fetid, and this accidental fetidity, an ordinary symptom of all nervous diseases, frequently announces the approach of an attack of melancholy, mania, or hysteria.(m) § 105. The most interesting symptoms are found in the various abnormi- ties of the sensorial system, as manifested in the excitement, depression, or delirium of one or the other of the senses. An excitement or depression of the sensorial system generally keeps even pace with the mental malady. Be- fore the mental disease breaks out, and while its advent is indicated by mental and moral excitements, an enhanced excitability in the sensorial system becomes perceptible, which, however, where psychical energies are gradually exhausted by the recurrence and violence of the paroxysms, frequently turns to an oppo- site condition, so that the failing, obtuseness, or loss of one of the senses attends the subsequent progress of the evil. According to Spurzheim,(n) the ear is the sense, which, of all others, suffers most among the insane, and there are more deaf than blind among them. ‘The deliria of the senses, which are either illusions, or hallucinations, are found in every form of the disease; they sometimes attack one sense only, sometimes several, and sometimes though rarely, all the senses at once. (0) Esquirol gives it as the result of his experience(p) that when the alienation of the mind begins, and sometimes a little earlier, smell and taste have changed, but the deceptions of the ear and the eye generally characterize the fancies of most madmen. The deliria of smell are less frequent than those of the other senses, those of taste are of the most various kind, and those of touch impress the patients with the existence of attributes in bodies other than those which they possess. These deliria frequently give rise to fixed ideas; particular postures, various attitudes and motions, are observed in almost all madmen. § 106. A change of moral disposition is one of the first symptoms, other than physical, with which the disease usually makes its appearance. Extreme irritability, proneness to anger, suspicion, concealment, obstinacy and_per- verseness, are common. In regard to the affections, various abnormal impulses and inclinations are observed. Fondness or aversion to particular persons, without any special reason; disposition to exercise cruelty, murderous desires, a wish to commit arson, or to steal.(r) Memory is generally good in refer- (m) Lecons Cliniques de l’Alienation Mentale, par M. Falret. Septiéme Lecon. p. 185. Paris, 1854. (n) Beobachtungen ueber den Wahnsinn. Nach dem Englischen und Franzoesischen bearbeitet von Embden, p. 81. See Méd. Lég., M. Orfila, tome i. p. 358. Paris, 1841, Or, Méd. Lég., Briand, p. 540. Paris, 1852. (o) For a full account of the illusions and hallucinations of the senses we would refer the reader to the Lecons Cliniques sur l’Alienation Mentale de M. Falret. 34d, 4th, 5th, 16th lessons. Paris, 1854. Also to the Etudes Medico-Psychologiques sur l’Alienation Mentale, par F. HE. Renaudin. Chap. 8th, p. 388. Paris, 1854. - (p) Compare Hagan Die Sinnetaunschungen in Bezugauf Psychologie Heilkunde, und Rechtspflege. Leipsic, 1837. (r) See § 192. A deranged person, says Orfila, regards with indifference the dearest objects of his affections, he thinks no more of:them or holds them in such aversion as 97 § 107] SENSIBILITY —MORAL DISPOSITION. [BOOK I. ence to things occurring during the disease, or to persons with whom the patient was then connected, but defective or mistaken as to things which oc- curred previously.(s) Of the intellectual faculties not all are uniformly in an abnormal state; on the contrary, some functions occasionally improve, thus producing a complex state of madness, on the one hand, and of wit, reflection, and shrewdness, on the other.(¢) Monomania is also included under this head. There is often a disposition to soliloquize aloud; and to laugh, without a visible reason. (3.) Hereditary Tendency.(u) § 107. The teaching of observation on this point is, that not only does the existence of insanity in the offspring afford a violent presumption of its ex- to repel, injure, and maltreat them. Hatred, jealousy, anger, wickedness, fear, terror, a disgust for life, a desire to destroy and kill, replace the most equal, calm, and soft- est nature.—Manuel de Méd. Lég. M. Orfila. Tomei. p. 382. Paris, 1848. (s) A great many remember things which occur ; and after their recovery, they often astonish by remarks which they had made ata time when they seemed most com- pletely deprived of their reason.—Méd. Lég. J. Briand, p. 540. Paris, 1852. (t) See cases collected by Friedreich, Handbuch der allgemeinen Pathologie, p. 189. See post, § 113. (u) “ Although at the first glance,” says Renaudin, ‘man appears to possess an in- dependent existence, isolated from his birth from those who begot him, although there is but little apparent relation between his ripe age and first infancy ; it is not the less true that behind the characters peculiar to his individuality, we can discover certain typical signs, some of which betray his nationality and others relate to his family. These typical signs are to be encountered not only in his physical organization, but are also found in his moral idiosyncrasies, and if tradition is of any force as regards man- ners and customs, inheritance is certainly of great value as relates to the tastes and habits. It is, in fact, manifested in the transmission from generation to generation of the most inveterate maladies, before which art is obliged to confess its weakness ; and it is with difficulty prophylactic measures ward off the sad result. In mental aliena- tion, also, experience furnishes us daily proofs of this transmission, of which it is es- sential to study the mode. “The question whether this transmission is Girect: or results from a predisposition whose development is due to the influence of an occasional cause, or, in other words, whether by itself it is an essential condition of causality, is no longer doubtful, and we now possess numerous examples not only of hereditary transmission, but also of an heredity accumulation of the mordid predispositions. This is particularly the case in families where wedlock is limited to a small circle of fortune and social fitness. The royal families of many countries have not escaped this law. We see generations of insane succeed each other with an unyielding regularity, and there are families which in this relation seem pursued by a desolating fatality. “ Aside from idiocy and imbecility, which show themselves a short time after birth, the predisposition does not ordinarily show itself until the individual has reached a certain development—that is to say, when all the conditions of causality are reunited. This native predisposition does not suppose that those that preceded were insane, it depends, above all, upon the conditions in which they are placed and which react upon the phases of their existence. This predisposition is also progressive from one generation to another; and it is in this manner that great social commotions and cer- tain epidemics contribute to the production of insanity, in leaving after them deep distress or in producing a disordered exaltation. ‘“‘ All causes capable of altering the public health have a marked influence upon the immediate production of insanity or upon the hereditary transmission of its predis- positions. The unhealthiness of dwellings, and insufficiency or bad quality of food are so many circumstances influencing its production, and to which municipal govern- | ments should pay serious attention. It is on account of these and other analogous causes that cretinism and idiocy are endemic in certain localities, and that this influ- ence is exercised not only on natives, but also upon those establishing thembelves there. “The mode of life of the parents, and the diseases they have had are no less ae 98 BOOK I.] TESTS OF INSANITY. [$ 107 istence in the parent, but that its existence in the parent affords the same pre- sumption as to its existence in the offspring. In regard to idiocy, the facts are very striking. ‘Suffice it to say,” we are told by Mr. 8. G. Howe, chairman of the Massachusetts State Idiocy Com- mission, in a very luminous report, submitted in 1848, “that out of 420 cases of congenital idiocy examined, some information was obtained respecting the condition of the progenitors of 359. Now in all these 359 cases, save only four, it was found that one or the other or both of the progenitors of the un- fortunate sufferers had, in some way, widely departed from the normal condition of health, and violated the natural laws.” The hereditary transmission of moral insanity is equally well authenticated. “We have no doubt,” says a very eminent physician, “that various immoral and vicious practices ought to be ascribed to insanity. When periodic insanity has shown itself in a large family, it is probable that some members of the family will evince a propensity to thieving or swindling.(v) And when more children than one of the same parents, bursting through all the restraints im- posed by carefully-instilled principles and established habits, engage in swin- dling transactions, it will often appear, upon inquiry, that insanity has generally broken out in that family.’’(w) And the same high authority tells us that in families where insanity prevails with the progenitors, he has known two, three, or four children of the same parents become deranged. One instance in par- ticular he dwells upon, in which, among a family of twenty persons, the children of a brother and of two sisters, fen were afflicted with insanity. A late very interesting table, originally published in the London Quarterly Review,(«) and indorsed by Dr. Winslow,(y) shows at once the importance of this inquiry :— cious in producing a predisposition to mental unsoundness. If insanity has existed in those that preceded, the chances of a direct transmission are much more probable. This predisposition is sometimes so marked as to be in some measure the only cause. Among the circumstances most likely to produce an hereditary predisposition, we should mention drunken habits in the parents. Many, indeed, are the cases of idi- ocy and imbecility which owe their situation to this cause. Many generations thus suffer the punishment inflicted for the faults of one alone. “The hereditary predisposition presents numerous varieties in its evolution. Many members of the same family are free from mental unsoundness ; and one only becomes insane. In another the inheritance shows itself from mother to daughter as a conse- quence of parturition. This predisposition sometimes consists only in the peculiarity of character, which drags a man towards a precipice which conducts irresistibly to insanity.”—Ktudes Medico-Psychologiques, par L. F. E. Renaudin. Chap. I. p. 33. Paris, 1854. (v) See post, § 192. (w) Essays on Partial Derangement in Supposed Connection with Religion. By the late John Cheyne, M. D. Dublin, 1843. (x) No. 163. (y) Lectures, &c. 150. See Rush on the Mind, 46, where this point is examined. 99 [BOOK I. TESTS OF INSANITY. 8 107] *posorduit Ayequeyy “A[[BMeU poaoidu1 19yyVy ‘aspo|MOUY [VI9UES UT poaordmy “WOLSITOI UL 4YLOJULOD punoy ‘sqyuids ur peaoidmt yon *[nj1eeqyO ‘gSpo[MOUY [Vingdiiog ut posoidwy ‘OS[V OSpe[MOUy [Binjdiog uy ‘Tnj1oayo LI0A fespe]MoUy SNOstpet ult poaoiduy ‘peaoiduir Ay[VLour you ‘AT[By UEP *[Bloued UT posoIdu yeyMoog ‘eT QIst1100ut ABMB YUEG 0.5 pol MOUy [vteued ul pasoidut ‘[nyisoyo £10 A. “A[[V1eues posaordury ‘ureldeyg £q pojou sv ‘UOstIg 94} SULAVIT JO 04R4g ‘IdIY J, JO O[NgT { [[osd OFOIM pUB pLory “£[snoracid poywonpe [[e 4 ‘201 T, JO epuy { [Toad oJO1M puUB pLory “9oIYZ, JO ory { [eM ejOIM pu poy “so[nd moj ‘Apjoop1eduit 001M pues poy ‘oeIYT, JO o[ny ‘SUIIIM pUuB SuIpver url posoiduy ‘A[qvrepisuoo poaoadwy "se[NA INoj f [TOM OFOIM PUB PRay ‘O2IUT, JO epny { [TOM eJOLM PUB Poy "Sarna anoj ‘ATGVIOTO} 9701 “TOM PREY ‘OIPOUYILAV VIII] B peuULvey SOIIIT B ota fApooysedut A10A pvoy ‘OOIUT, JO O[NY f [TOM OFOIM PUB PRoYy “OIPIOTUYYLIIV JO Ssepnd Inoy !Apjpoajxedtr ojo1m ‘[JoM poy ‘SUIJIIM PUB SUIPVet ul poAoId wy *UOSIIg SUIAVOT uo Wlodey s,1e}sBuMi-[OoyoS "909 -[OJUL puB sztaids UL MOT *qOoT[OJUL YVoM LIOA JO “9997 -[9}UI JO eelsep MOT AIO A ‘sqtards MoT A190 A “qoqeyd[e ay} Mouy you PIP *700]]07 UT 4soMo] O49 JO ‘O ‘d ‘V Mouy qou DED ‘9091107 UT ysoMO] O49 JO *purly JSoMOT OY} JO ‘yoquydls oy} Mmouy A[UGQ “AQOoJIOd UL pvey "W908 JSI USM UL] -duyy ogy Aq “os “yo0T[0q UT | JO selsep UO SUOTIVAIOSYO *SJUBAIOS-MO][OJ kq jo y10ds opvut ‘pur jo ssouyve jy ‘oT qisuodse.It ySOWLy "J01Pl UD SY LOYAVI PoLepIsuoy "AhjVULYSUL JO SULO4 -duids pomoys pus ‘ssouisng Ul oIn[rey 1oyJe quasgov pus pajsalap ewm0d00eq pPRI]T “AT[IS LOYJVI PoLopIsuod 10481g ‘088 sIved 9914} poinzoRdj [NYAS ‘wnpAsy- UL OTOUA ‘put JO UANy efduIs BIG -£JLUBSUT YM Suroqvy (eatyeq 0} uosver AraAe eAvy [ ‘teyjzou sty) Apurey sty JO 9ug ‘Sag SHOALOU 03 yoolqns LeYJOU STPT “OQUVSUL S104SIS OMT, ‘) At the same time, it must be admitted that the science of psychical medicine has not attained such a degree of perfection, as to exclude entirely the possibility of cases arising which would not admit of being classed with any of those already observed and noted. At times they incline to mere moral perversity, and are often treated as such for years; or the disease itself is not yet clearly developed; or, finally, it has apparently ceased, or arrived at a stage in which the patient is able to control and direct his condition, as a drunkard his intoxication.(c) § 132. For various reasons, simulation is not always to be inferred from the absence of a trace of insanity at the time of the investigation. (d) 1. Patients, whose minds are unsound on one subject only, have the power of burying their madness in their own hearts, to such an extent as to betray no sign of derangement in the course of the examination ; because it is not necessary that the disturbance of one mental function should impair the action (b) Mare, Die Geisteskrankheiten, &c., vol. i. p. 104. (c) Schiirmayer, Gericht. Med. § 533. “Whether the following case was or was not one of simulation cannot yet be known; the recapture of the convict may, perhaps, hereafter determine the question. John Jakes was convicted at the Devon Easter sessions, 1855, of pocket-picking. Previous convictions having been proved, he was sentenced to four years’ penal servitude. On hearing the sentence, he fell down in the dock as if in a fit of apoplexy. When removed to the gaol, he was found to be hemiplegic and apparently mindless. He, however, did some things which did not belong to dementia following apoplexy; for instance, he was designedly filthy, and even ate his own excrements. His insanity was certified by the surgeon of the gaol, and by a second medical man, and he was removed to the asylum. Notwithstanding the medical certificates of his insanity, the convicting magistrates, who knew his character as a burglar and a criminal of great ability, thought that he was feigning. Warned by their caution, I examined the man carefully. He had all the symptoms of hemiplegia: the toe dragged in walking, the uncertain grasp of the hand, a slight drawing of the features, the tongue thrust to the paralyzed side—all these symptoms were present in a manner so true to nature, that, if they were feigned, the representation was a consummate piece of acting founded upon accurate observation. In the asylum the patient was not dirty; he was tranquil and apparently demented ; he had to be fed, to be dressed, and to be undressed, to be led from place to place; he could not be made to speak ; he slept well. On the night of the 17th of August, 1856, he effected his escape from the asylum, in a manner which convinced the magistrates that their opinion of his simulation was just, and that he had succeeded in deceiving some four or five medical men. He converted the handle of a tin cup into a false key, wherewith he unlocked a window guard; through the window he escaped by night into the garden; from thence he clambered over a door, eight feet high, and afterwards over a wall of the same height. He got clear away, probably joined his old associates, and has never been heard of since. “Tt is hard to say which is the least improbable, a representation of hemiplegia and dementia, so perfect as to deceive several men, forewarned against deception; or the escape of a really paralytic patient by the means described. It must be remembered that the patient was an accomplished housebreaker, and that things impossible to other lunatics might have been accomplished by him. “The fifth report of the inspectors in Ireland states that several cases of feigned insanity, to defeat the ends of justice, have come under the official cognizance of the inspectors during the year. One young woman, who had murdered her husband, dis- played the most extraordinary determination; although secretly watched day and night for weeks, she never deviated from the line of deception; she was, however, tried, convicted, and executed. The cases of other murderers who feigned insanity— namely, William Quinlan and John Grady—are also recorded. Unfortunately, the carefully prepared report is an official document, and not a scientific record; and, therefore, the manner in which the inspectors detected these impositions, and secured the administration of justice, is not made known to us.”—Bucknill on the Diagnosis of Insanity. (d) Compare Friedreich, p. 165. 132 BOOK I.] FEIGNED INSANITY. [$ 184 of the others. There are many cases, which have been in part noticed, and some of which will appear in the course of the following pages, in which the sufferer is insane on one subject alone, while all the other operations of his mind proceed in their normal manner, so that any one unacquainted with the fixed idea which controls him, would pronounce him perfectly rational. (e) 2. It is established by experience, that lunatics, even when their disease is not that of monomania, enjoy intervals in which their understanding has not only its normal vigor, but even displays uncommon powers. (/) 3. A genuine mental disease may be suspended or removed by the very circumstance which gives rise to the investigation, by analogy to the cases of madmen restored to health by great mental and moral shocks, as well as of persons attempting suicide from melancholy or despair, who are cured of their folly by the impressions received while making the attempt. (q) § 133. Another consideration which must never be lost sight of in investi- gations of the kind is this, that a pretended mental disease may turn into a real one.(h) A» man who makes every effort to appear deranged, may be so much affected by his efforts, that what he pretends may assume a reality in his mind, and he become in fact insane.(z) In conclusion, there is also a class of cases in which genuine paroxysms of madness alternate with pretended ones, which calls for especial caution in pronouncing upon them.(7) § 134. There are persons of unsound mind, who, in the incipient stages of the disease, retain sufficient consciousness to endeavor, for various reasons, to conceal their malady. A continued attentive observation of such individuals will, however, suffice, in general, to furnish the data for a correct view of the case. But even in cases of confirmed insanity, an occult condition, so-called, may occur, in which the madman tries and manages to conceal his ailment, or rather his impulses, fancies, and feelings. This is particularly frequent in lucid intervals and in partial insanity.(&) Under such circumstances, in addition to the maxims adduced under the head of dubious cases, the following sugges- tions will be found useful. To interrogate the patient directly to the point is of very little avail, for if he is anxious to conceal his madness, any questions will inspire him with a suspicion of the questioner which must frustrate all such efforts. More circuitous means are preferable. 1. By bringing the patient into a succession of different relations of life, and regarding closely the effect produced upon him, some indications of his fixed (e) Compare Wagner, Beitrage sur Philosophischen Anthropologie. Vienna, 1794. Vol. i. p. 114. Perfect, Annalen einer Anstalt fiir Wahusinnige. Hanover, 1804. p- 341. Esquirol, Note sur la monomanie homicide. Paris, 1837, p. 3. (f) Muratori, Ueber die Hinbildungs Kraft. Leipsic, 1785. Vol. ii. p. 8. Reil’s Rapsodien, p. 76. (g) Etudes Medico-Psychologiques sur l’Alienation Mentale, par L. F, E. Renaudin. Chap. ix. p. 522. Paris, 1854. (h) For an interesting essay on Monomania induced by Imitation, see 1 Am. Journ. of Insan. 116. See ante, § 128. (2) Ibid. p. 172. (j) Compare Neumann, Die Krankheiten des Vorstellungsvermoegens. Leipsic, 1852, p. 397. And Pye, Aufsaetze, &c., aus der gerichtlichen Arzneiwissenschaft. Third series, p. 219. And see particularly Schiirmayer, § 535, whence the above observations are drawn. . (k) Friedreich, Diagnostik, p. 38 ; and his Handbuch der gerichtlichen Psychologie, p. 175. 133 “§ 139] FROM WHAT INSANITY IS TO BE DISTINGUISHED. [BOOK I. ideas may be made to escape him. If the subject of his lunacy is thus brought into question, by contradicting his views in connection with it, the perversion of ‘his intellect will be doubly apparent. (4k) § 135. 2. Amelung’s advice is to furnish the party with pen, ink, and paper, and induce him, under some pretext or other, to write; he will not be able to refrain from setting down something which will throw more or less light on the nature of his derangement. § 136. 8. Heindorf proposes that the physician should narrate the patient’s own history, or so much of it as he had learned or could surmise, to the patient, as the history of the physician; this is to enlist the confidence of the patient and make him suppose a parallel between his own case and that of the examiner, so that the dulce habere soctum malorum may elicit circumstances which he would otherwise have concealed. § 137. 4. A similar proposal is to associate the individual with another, of equal rank, degree of education, social position, &c., with himself, as a con- fidant, as persons of this description generally display more frankness towards people of their own order, than towards those whom they regard as above them. This idea, however, it will be easily seen, is very difficult of practical application. The tests which may be applied at a medico-legal examination have been noticed under a previous head.(a) § 138. Though patients of this kind may conceal, they can never deny their fixed ideas. Many persons, says Heinroth, who, in a healthy state, had no scruples in telling a large series of falsehoods, whenever their interest required it, or a confession of the truth would subject them to a disagreeable exposure, forget all this the moment they have a fixed idea to maintain. Then they overlook every advantage, and stand at no absurdity and no disgrace. To hold fast the fancy which enchains them, is their only aim. If the physician can discover this fancy, he has but to ply the party with questions in reference to it, to make him betray himself, and in many cases, disclose more than the inquirer had ever thought of investigating. (/) § 189. In this view it is peculiarly important not to lose sight of latent insanity, or insania occulta,(m) illustrations of which have been given under a previous head(mm). This term is used to designate an unsoundness of mind — which becomes perceptible externally, and consequently to others, only by the commission of a crime, the motive of which is derived exclusively from the mental disorder. The forms it assumes may vary, as even furor transitorius may issue from insania occulta. Whatever difference of opinion exists as to the possibility and the explanation of occult insanity, the facts of experience compel us to consider such a condition as possible. But to detect and sub- stantiate it in any given case will be attended with more or less difficulty, ac- cording to the circumstances, and must be undertaken with reference to the same criteria as were pointed out in regard to the furor transitorius.(n) | (kk) See ante, §§ 89-92. (a) Ante, § 100. (/) See particularly Schiirmayer, Gericht. Med. § 536; and also L. Krahmer, face buch der Gericht. Med. Halle, C. A. Schwetschke, 1851, § 122. (m) Friedreich, 580. (mm) § 110. (n) Schiirmayer, Gericht. Med. § 553. 134 BOOK I.] DISEASES OF THE SENSES. [$ 140 In its special relations to medico-legal examination, tnsania occulta has been already discussed. (77) IV. MENTAL UNSOUNDNESS AS CONNECTED WITH DERANGEMENT OF THE SENSES, AND DISEASE. Ist. Deaf and Dumb.(0) § 140. The deaf and dumb, where their infirmity is congenital, or contracted in early infancy, are always in an abnormal mental and moral condition, owing to the absence of hearing and speech, the two main faculties for the culture of the mental and moral man.(p) For the same reason, only this description of the deaf and dumb comes under consideration, and in every case the point of inquiry will be the degree of development of the mental and moral powers; that is to say, of the power of understanding the consequences and the wrong- fulness of the act committed. What will always exert great influence, is the question whether the deaf and dumb person has received any, and what in- struction ; where no instruction has been efficient, there is always great reason to conclude that the psychological conditions are wanting upon which moral responsibility depends.(q) The most difficult part of the task is always the examination of the individual, which, to lead to a reliable result, requires the assistance of an adept—that is to say, a teacher of the deafand dumb. In pronouncing upon such cases, it must not be forgotten that the deaf and dumb have a peculiarly irascible disposition, and that many of them, especially those whose features are marked by froward, morose, gloomy and sinister expression, and more or less resemble those of the Cretins, are born with a tendency to deceit, malice, cunning, duplicity, and cruelty.(7) In regard to the form and manner in which the intellectual condition of the deaf and dumb should be examined and probed, Hoffbauer and, after him, © Friedreich have given a series of directions, substantially as follows: Where the deaf and dumb person is able to understand spoken words by following the motions of the lips, the inquirer must speak distinctly and with marked articu- lation, so as to enable the patient to see what he says. Where oral examina- tions are impracticable or unsatisfactory, the scrutiny, if possible, must be made in writing, when it becomes especially important to propound simple questions, intelligible to every one. But they must not be such merely as the patient is likely to expect beforehand, for these might be answered promptly and correctly ; not, however, because he has properly examined into and un- derstood their meaning, and properly concentrated in his own thoughts the answer he returns, but because he considers the question as written down, with- out thinking further about it, as a request to commit to paper that which per- (nn) Ante, § 87. (o) See an interesting treatise on this point, 8 Am. Journ. of Ins. 17. L. Krahmer, Handbuch der Gericht. Med. Halle, C. A. Schwetschke, 1851, § 122. (p) Friedreich Handbuch der Geritchtlichen Psychologie, p. 659. (q) See J. Briand, Méd. Lég., article sur la surdi-mutité, p. 569, Paris, 1852. See also M. Orfila, Méd. Lég. sur la surdi-mutité, tome. i. p. 460. Paris, 1848. Also, Traité des maladies de l’oreille et de audition, par Itard, vol. xi. (r) Schiirmayer, Gericht. Med. § 562. . 135 § 140] DEAF AND DUMB. [BOOK I. haps would be his answer if he thought at all about it. So long as these answers are correct or, if not correct, at least congruous, there is room to be- - lieve that the questions were understood by the patient, and that he is able, to a certain extent, to make himself intelligible to others by means of writing. But the contrary does not appear if his answers are incongruous. But if several answers are incongruous, and particularly if it is found that a certain number of answers are constantly repeated, no doubt remains that the indi- vidual, however capable of tracing written characters, is not able, in the pro- per sense of the word, either to read or write. Where it is necessary to converse with the deaf and dumb person by means of signs, and for this pur- pose to call in the assistance of an expert, the capacity of the latter must be so far taken into account as to obtain the assurance that he will speak and interpret according to the intention of the judicial purpose had in view; for which reason, it will be important to instruct the interpreter fully on this sub- ject. It may also be necessary, and is declared indispensable by some,(s) to employ two interpreters at the hearing. It may be said, in passing, that such examinations are almost always unsatisfactory in their results. Itard is of opinion that the intellectual capacity of a deaf and dumb person should be tested by a written colloquy, and that if incapable of taking part in such communications, he is to be looked upon as lacking the necessary instruction, and idiotic. The same high authority further remarks, that if a deaf and dumb man denies having received any instruction, in the hope of escaping punish- ment on the score of ignorance, the proper course is to accuse him of a graver crime, and one of another character from that imputed to him,(¢) and that, on the whole, a deaf and dumb man who understands the questions asked of him in writing, is much the same as a man entirely compos mentis. Marc says that when the responsibility of a deaf and dumb person who has been taught to converse, is in question, a hearing should be had, without any judicial pre- paration, under the form of a conversation on general subjects entirely foreign to the offence committed, from which, by an association of ideas, a transition should be effected to general questions of morals and social order. ‘There is but little difference,’’ says Orfila, ‘between the uninstructed deaf and dumb and the idiot, and such is the affinity existing between these two conditions of the intelligence, that more than the fortieth part of the deaf and dumb are afflicted with idiocy. It may be that this mental incapacity is the result of inaudition, or it may depend upon the same cause that paralyzed the auditive sense. It should be observed, however, that the idiot is incapable of learning, whilst the deaf and dumb, on the contrary, can receive an almost complete education. Even if the uninstructed deaf and dumb do not know all the consequences of certain criminal actions, still they are not slow in learning that these actions are censurable, and even that they are the subject of punish- ment.’’(w) Legally, however, though a party seeking to charge an unedn- cated deaf mute, has the burden on him of proving some degree of intelligence (s) Kleinschrod. (¢) If he knows how to write, he will have immediate recourse to this method, in order to justify himself, and will thus show the whole range of his intelligence. (u) Méd. Lég. tome i. p. 460. Paris, 1848. 156 BOOK I.] DISEASES OF THE SENSES. [$ 140 on part of the defendant, yet when this is shown, the defendant can no longer plead his disability as a bar. The legal position of deaf and dumb persons is as follows :— (a) They can personally exercise control over property. In 1754, a woman born deaf and dumb, upon arriving at the age of twenty-one years, applied to the Court of Chancery for the possession of her real estate, and for the enjoyment of her personal estate (it is presumed that she had been pre- viously under the control of a guardian). Upon her appearing before the Chancellor, Lord Hardwicke, he put questions to her in writing, and receiving suitable written answers, her application was granted. (a) (b) They can take by descent, a point which we believe has never been disputed. (c) When otherwise of disposing capacity, they can make a valid will.(0) (d) Even though uneducated, if capable of intelligently bargaining (though it seems the burden of proving this is on the party seeking to charge them), they may make.a valid contract, or convey real and personal estate. The cases on this point are thus summed up by Dr. H. P. Peet, in a very interesting essay published by him in the thirteenth volume of the American Journal of Insanity :— In Brower v. Fisher,(¢) a deed was declared valid that had been made by an uneducated deaf-mute, it being shown, on inquiry by a commission of lunacy, that the grantor, though born deaf and dumb, “‘had sufficient intelligence for the management of himself and property, and was capable of communicating by signs and motions with persons with whom he was intimate, so as to be well understood, and of understanding them; that the jurors were of opinion that the defendant was not a lunatic, unless the fact of his having been born deaf and dumb, in judgment of law, made him a lunatic.”” The deaf-mute had sold his interest in his father’s estate to the plaintiffs for $375, which was proved to be a fair compensation under the circumstances, being assisted in making the sale by his mother and an intimate friend. Subsequently bringing suit on the bond then given, the purchaser was advised that the deed from a deaf- mute was not valid, and appealed to the Court of Chancery for his own pro- tection. Chancellor Kent decided that the deed was valid under the circum- stances; yet that ‘the bill does not appear to have been filed vexatiously, but rather to obtain, for greater caution, the opinion of the court on a point which had been left quite doubtful in many of the books, and which had never received any discussion here.’’ The Chancellor observes: “Upon the finding of the jury under the commission, in nature of a writ de lunatico inquirendo, I re- fused to appoint a committee, and adjudged that the defendant was not to be deemed an idiot from the mere circumstance of being born deaf and dumb. This is a clear, settled rule, and numerous instances have occurred in which such afflicted persons have demonstrably shown that they were intelligent and capable of intellectual and moral cultivation.” This is quite a safe assertion, even in this country, in 1820, the date of this case. After citing conflicting (a) Dickinson v, Blisset, 1 Dickens, 168. (b) See 2 Bradford’s Reports, 42, 265. (c) 4 Johnson’s N. Y. Chancery Reports, 441. 137 § 140] DEAF AND DUMB. [BOOK I. eases and authorities, for which we refer our readers to the volume of reports, the learned and able Chancellor goes on to say: ‘Perhaps, after all, the pre- sumption, in the first instance, is, that every such person is incompetent. It is reasonable presumption, in order to insure protection and prevent fraud, and is founded on the notorious fact that the want of hearing and speech exceed- ingly cramps the powers and limits the range of the mind. ‘The failure of the organs necessary for general intercourse and communion with mankind op- presses the understanding; affigat humo divine particulam aure. A special examination, to repel the inference of mental imbecility, seems always to have been required ; and this presumption was all that was intended by the civil law, according to the construction of the ecclesiastical courts; for a person born deaf and dumb was allowed to make a will, if it appeared upon sufficient proof, that he had the requisite understanding and desire. I am satisfied that the plaintiff is justly to be exempted from the charge of a groundless and vexatious inquiry; and the course is not to punish the prosecutor of a charge of lunacy with costs, if the prosecution has been conducted in good faith, and upon probable grounds. I shall, therefore, dismiss the bill without costs.” The effect of this decision seems to be that a deaf-mute from birth is, in all cases, to be presumed incompetent to make a will or a contract, till his com- petency is proved; and that, if he sells property, and the buyer afterwards chooses to question his competency, he must defend himself at his own costs. We submit that it would be more in accordance with reason and justice to presume his competency, as in the case of men who hear and speak, when he has among his neighbors a reputation for intelligence and ability to manage his own affairs, and more especially when he has been taught to read and write. It is to be presumed that no man would make a contract with him, unless he had such a reputation for intelligence and competency; and if the purchaser of property from a deaf-mute neglected to ascertain this point before- hand, we, with all due respect to the high authority we have cited, respectfully submit that the laches is his own, and that he ought to bear the costs of an inquiry which he ought to have previously made himself. It is observable that Chancellor Kent, in the opinion before us, makes no distinction between deaf-mutes who have, and those who have not been edu- cated. Probably, at that early day, he was hardly aware of the nature of this distinction. Indeed, it is a fact that there are some uneducated deaf-mutes more intelligent in matters concerning their own affairs than are some of those who have spent years in an institution ; for all the care of the teacher cannot remedy the original want of capacity. Such cases are, however, rare. The fact of having been educated is one strong presumption of capacity of a deaf- mute to manage his own affairs; and if not educated, still his reputation for intelligence among his neighbors ought, as we have already observed, to be presumptive proof as to his capacity or incapacity. The capacity of making a contract involves the capacity of making a will; and we see, in the citation just given from Chancellor Kent, he refers to the testamentary capacity conceded to deaf-mutes by ‘‘the ecclesiastical courts,” where they were proved to have “the requisite understanding and desire,” in illustration of the capacity of a deaf-mute to execute a valid deed. From this 138 BOOK I.] DISEASES OF THE SENSES. [$ 140 decision, therefore, and from the opinion expressed by Surrogate Bradford, before referred to, we are warranted in declaring the law to be that an intelli- gent deaf-mute, even if unable to write, and only able to make his wishes known by signs, can make a valid will, or valid deed, or bind himself to any other obligation or contract. And we have high legal authority for adding that, whatever may be the degree of his intelligence, he is bound for, and an action can be maintained against him for, necessaries suitable to his condition, unless it appear that the person who supplied them knew of his want of ordinary intelligence, and imposed upon him.(d) In the same volume of Johnson’s Chancery Reports (iv. p. 168) we find a case in which a woman, “unmarried, of the age of sixty years, deaf and dumb from infancy, and of such imbecility of mind as to be incapable of defending the suit,”’ in which she was legally a party with her brother and others, was admitted to appear and defend by guardian. No special inquiry was here made; the facts on which the application for the appointment of a guardian were founded being merely verified by affidavit. Here it will be seen the appointment of a guardian was grounded on “imbecility of mind,” and not merely on the defendant’s being deaf and dumb. She was doubtless unedu- cated, for at that date (1819) there were no deaf-mutes in the State of New York, sixty years of age, who had had the opportunity of receiving an educa- tion. Had she been educated, however, there can be no question that extreme ‘“‘imbecility of mind,” though it would be less likely to supervene, would, if present, be a cause for appointing a guardian.(e) We find a French case in point recorded by Piroux, who informs us that he was called in as an expert, to give advice on the question whether Frances Bowry, one of his former pupils (at Nancy, in Eastern France), was in a condition to manage her own estate, or whether it would be for her benefit to name for her a conseil judi- ciare (a sort of half-guardian). ‘ Knowing,” he says, “that this young woman has no longer father or mother, that she is obliged to live with illite- rate persons, among whom her instruction cannot be continued, and, finally, that a sickness of nearly a year, which she had when in our establishment, has hindered her progress, we considered that it would be useful for her to name for her a consetl judiciare; and the tribunal has by a judgment confirmed our opinion.”’ (e) If compos menits they can contract matrimony.(/ ) (d) Baxter v. The Earl of Portsmouth, 7 D. and Ry. 614; 5 Barn. and Cress. 170; 2 Car. and Pay. 178. (e) Since writing this paper we have examined the laws of Georgia, in which it is enacted that, “ Deaf and dumb persons shall be so far considered idiots in law as to authorize the inferior court to appoint guardians, etc.”—“ Provided it shall be made satisfactorily to appear to said court that such deaf and dumb person or persons are incapable of managing his or her estate, or him or her or themselves.” This is the only American legislative provision on this point that has come to our notice. Pos- sibly similar provisions may exist in the laws of other States; but we believe not in those of the North, Eastern, or Middle States. By the principles and practice of the common law, courts might, without special enactment, appoint guardians for any person satisfactorily shown to be incapable of managing his estate, whether deaf and dumb or not. See 2 Johnson’s N. Y. Chancery Rep. 235. It seems, then, the indig- nation expressed by a Georgia deaf-mute at the law just cited (Am. Annals, viii. 124) was rather unnecessary. (f) Swinburne on Spousals, cited 13 Am. Journ. Insan. 127. 139 § 140] DEAF AND DUMB. [BOOK I. (f) They can be examined as witnesses in courts of justice; and for this purpose it is proper that their testimony should be interpreted through the ~medium which they best understand. (q) | (g) They are legally responsible for crimes in the same way as other per- sons, though in determining the question of sanity, their disability, when not removed by education, should throw on the prosecution the burden of proving them to have some degree of intelligence. (h) “The favor of courts and jurists may also be justly invoked for a deaf person in cases where he has acted under erroneous impressions natural to one in his circumstances. Deaf-mutes, and deaf persons who are not quite dumb, are often suspicious and irritable, from their inability to hear and take part in what is going on around them. They sometimes take as intentional annoy- ance and insult gestures or practical jests, unskilfully made, which were merely intended as friendly pleasantry. Piroux records the case of Jean-Baptist Vil- lemin, a deaf-mute of twenty-nine years, very imperfectly educated, and of feeble capacity. Placed by the wealth of his family above the necessity of manual labor, and incapable of intellectual labor, he fell into dissolute habits, wander- ing idle about the fields and frequenting public-houses. One night, in a tavern, he met a man named Marchand, who attempted to amuse himself and the company by making signs to the deaf-mute which the latter did not understand. Villemin indicated by a gesture that he desired to be let alone; but Marchand continued to annoy him, seizing his head, making a bite at his nose, and brand- ishing round his head a cane, which he then held in the attitude of firing a gun, saying to the company that he wished to invite Villemin to go a hunting. Villemin naturally lost his patience ; unable to understand what was meant by Marchand, or to express his own sentiments, except by actions, he seized the aggressor, flung him on the floor, and gave him a kick on the head. Mar- chand was only slightly hurt. The company declared, and he admitted, that he was himself to blame; and he said he harbored no ill-will to Villemin for what had passed. Returning home, a distance of several leagues on foot, he fell sick and died of a disease of the chest, which his family chose to ascribe to the blows which he had received from Villemin—which, however, was disproved by the medical witnesses. The deaf-mute was, in the first instance, sentenced to two months’ imprisonment; but, on an appeal to the Cour Royale of Nancy, in consideration of the unfortunate condition of Villemin, and of the brutal and inconsiderate conduct of Marchand, the term was reduced to six days. (2) “Other cases may easily be supposed in which a deaf person may be led to violent conduct by his inability to hear, and to understand what is meant by others. An impatient man, for instance, requests a deaf-mute to get out of his way, and, not knowing that the latter could not hear his request, attempts to shove him aside, thus provoking a manual retort. A deaf-mute may also erroneously conceive himself wronged in making change, or in price, weight, (g) Wh. Cr. Law, § 754; 13 Am. Journ. Ins. 155. (h) The cases under this head are stated by Dr. Peet, in the article already refer- red to. (7) Piroux’s Journal, i. 46, 59. 140 BOOK I.] DISEASES OF THE SENSES. [$ 140 or measure, and break out into violence. In such cases, we are confident, there are very few who would undertake a prosecution for violence by a deaf-mute, after becoming aware of his peculiar circumstances. ‘“‘The disposition of courts and juries to mitigate the punishment of an un- educated deaf-mute criminal has been shown in France and Germany in several cases of murder, some of them of an aggravated character; for it is notorious that deaf-mutes who have grown to maturity without instruction are too often passionate and vindictive. Bebian relates the case of Pierre Sauron, an un- educated deaf-mute of the department of Cantal, who had formed an illicit connection with the daughter of a neighbor. The father, scandalized by such a connection with a dumb man, undertook to put a stop to it by sending his daughter out of the country. For this Sauron manifested the most implacable resentment, and finally waylaid and murdered him. The sentence was hard labor for life: for the like crime one not deaf and dumb would have been sent to the guillotine. When the sentence was explained to the deaf-mute, he declared he would rather be put to death. ‘¢ Another case we find thus related in the Ninth Report of the Deaf and Dumb Institution of Hamburgh, Germany. “ At Cologne, on the 14th and 15th of August, 1829, the royal Court of Assizes was occupied by an accusation against a deaf and dumb journeyman shoemaker, Johann Schmit, of Kreuznach, who, enraged at being upbraided for the defects of his work, had stabbed his master with a knife. The princi- pal question discussed was whether the early instruction and moral and in- tellectual state of the deaf-mute made for or against his accountability. The jury found that the unfortunate murderer was not accountable; and he was therefore acquitted of the charge, and dismissed free into the street. This (adds the editor of the Hamburgh Report), it is to be hoped, was not without that solicitude that might secure a better education to the unfortunate man, then twenty-three years old, and sufficient precautions lest he should become possessed with the idea that he could do such acts with impunity.” “ A much more aggravated case than either of the foregoing, was that of Michael Boyer, an uneducated and vagabond deaf-mute, of about twenty-seven or twenty-eight years, who was brought before the Court of Assizes of Cantal (France), under the triple charge of rape, murder, and robbery, committed on a girl of 11 years, whom he met in a lonely place, on Christmas-day, 1843, on her way to the residence of an aunt in a distant village, with whom she was to spend the winter in order to attend school. Boyer was proved to have pursued other females with evident intentions of violence, and had been, some years before, condemned to three years’ imprisonment for theft. The evidence, though circumstantial, was conclusive. It is not to our purpose to detail it. We observe, however, that the prisoner, being interrogated through M. Riviere, director of the school for the deaf and dumb at Rodey, denied, energetically, the principal facts imputed to him, and succeeded in making it understood that he maintained that the blood observed on his garments came from a wound in the head, occasioned by a fall while in liquor. What plea was by his counsel set up in defence we are not informed. The jury found him guilty of the triple charge, but admitted extenuating circumstances—a verdict the effect of 141 § 140] DEAF AND DUMB. [BOOK I. which was to save the prisoner’s life. He was condemned to hard labor for life, and to the exposition publique (pillory, or stocks).(7) It should be ob- ‘served that the only extenuating circumstances that appear in the narrative of this fearful crime were the total deprivation of instruction, and neglected, vagabond state of the criminal. ‘A similar verdict and sentence were given in the case of the deaf-mute Em- “ manueli, of Corsica, who had waylaid and murdered the two sisters Ristori, provoked to frenzy by the obstinate refusal of one of them to listen to his prolonged suit. He had, some years before, killed her brother in a quarrel on the same account; and it being considered that he had acted with great pro- vocation, was only condemned to five years’ imprisonment—a lenity which the commission of the second, and far more aggravated murder showed to have been misplaced. (4) ‘«« The details of another French case of murder by an uneducated mute, Louis Chavanon, may be read in Beck’s Medical Jurisprudence. This deaf-mute was of such a covetous and grasping disposition that he harbored the most violent enmity against any one who purchased property of his father. The deceased, Treille, having become possessed, by purchase, of the half of the house in which Chavanon lived, the latter, after repeated menaces in gestures, meeting him on the common stairs, an affray ensued which ended in the death of the unfortunate Treille. The sentence was ten years’ imprisonment and a fine of one thousand francs to the widow and children of Treille. ‘‘ Another deplorable instance of the ungovernable passions of too many un- educated mutes is furnished by the case of Pierre Lafond, who, having been repeatedly detected in thefts of the property of his uncle and aunt, by whom he had been adopted and brought up, his aunt was at length provoked to the degree of following and reproaching him in the presence of a young neighbor, of whom Lafond was enamored. Watching an opportunity to execute the vengeance that rankled in his heart, he availed himself of the absence of his uncle to attack his aunt at night, in her bed, with several of the shoe-knives used by him in his trade. Her daughters, coming to her assistance, were also grievously wounded, but, providentially, none of the victims were mortally touched. ‘Taken, a day or two afterwards, wandering in the fields, Lafond alleged, by the aid of an interpreter conversant with his signs, that he com- mitted the act under the influence of a sudden fright and hallucination. How- ever, neither this adroit defence nor his unfortunate position could make the jury forget the aggravating circumstances of the case. He was found guilty, and condemned to ten years at hard labor. (/) ‘In the several French cases that have been cited (and we might have cited other similar cases from Bebian’s, Piroux’s, and Morel’s Journals), no difficulty appears to have been experienced in relation to the formalities of a trial; the questions that were raised related to the degree of moral accountability of the deaf and dumb. But the few English and Scotch cases we have are mostly of a different character. In these cases the defence set up for deaf-mutes accused (j) Morel’s Annales, ii. 166-170. (k) Piroux’s Journal, iv. 144. (1) Ibid. i. 56. 142 BOOK I.] DISEASES OF THE SENSES. [$ 140 of crime has generally turned on legal forms and technicalities. As this paper has already extended to an unexpected length, and as the cases to which we refer can be consulted at large in standard works, we shall restrict ourselves to brief outlines. “In July, 1817,(m) Jean Campbell, an uneducated deaf and dumb woman, the mother of three children by three different fathers, was charged before the Court of Justiciary, in Edinburgh, with murdering her child by throwing it over the old bridge at Glasgow. Mr. Robert Kinniburgh, an eminent teacher of the deaf and dumb, was called in as an expert. He understood, from her signs, that she maintained that, having the child at her back, held up by her cloak, which she held across her breast with her hands, and being partially intoxicated, she had loosened her hold to see to the safety of some money in her bosom, thus allowing the child to fall over the parapet of the bridge, against which she was resting. She indignantly denied having intended to throw it in the river. “Mr. Kinniburgh being asked whether he thought she could understand the question, whether she was guilty or not guilty of the crime of which she was accused, answered, that in the way in which he put the question, asking her by signs whether she threw the child over the bridge or not, he thought she could plead not guilty by signs, and this is the only way in which he could so put the question to her; but that he had no idea, abstractly speak- ing, that she knew what a trial was, but that she knew she was brought into court about her child. “John Wood, Esq., auditor of excise (who is deaf and partially dumb), gave in a written statement upon oath, mentioning that he had visited the prisoner in prison, and was of opinion that she was altogether incapable of pleading guilty or not guilty; that she stated the circumstances by signs, in the same manner she had done to the court, when questioned before the court by Mr. Kinniburgh, and seemed to be sensible that punishment would follow the commission of a crime. “The court were unanimously of opinion that this novel and important question, of which no precedent appeared in the law of this country [Scot- land], deserves great consideration, and every information that the counsel on each side could could procure and furnish.”’ “‘ At a subsequent period the judges delivered their opinion as follows :— “Tord Hermand was of opinion that the panel (prisoner) was not a fit object of trial. She was deaf and dumb from her infancy; had had no in- struction whatever ; was unable to give information to her counsel, to com- municate the names of her exculpatory witnesses, if she had any, and was unable to plead to the indictment in any way whatever, except by certain signs which he considered no pleading whatever.’’ “The four other judges, however, overruled this opinion, referring especially to a case (already mentioned in a former part of this paper) that had occurred in England, in 17738, in which one Jones, who had stolen five guineas, appear- (m) Beck gives this date 1807, which is a manifest error, as Mr. Kinniburgh, of the Edinburgh Institution for the Deaf and Dumb, which was first opened in 1810, was called in the case, and referred to it in his report for 1815. 143 § 141] DEAF AND DUMB. [BOOK I. ing to be deaf and dumb, and being found by the jury impanelled on that point to be mute ‘from the visitation of God,’ was arraigned by the means of a woman accustomed to converse with him by signs, found guilty, and transported. And it was also observed that it might be for the prisoner’s own good to have a trial; for if the jury found that her declaration, that she did not intend to throw her child in the river, was true, she would be acquitted and set free; whereas, if not found capable of being tried for a crime, she must be confined for life. The woman Campbell was accordingly placed at the bar, and when the question was put, Guilty or not? ‘her counsel, Mr. McNeil, rose, and stated that he could not allow his client to plead to the indictment, until it was explained to her that she was at liberty to plead guilty or not. Upon it being found that this could not be done, the case was dropped, and she was dismissed from the bar simpliciter. Thus, though it is esta- blished that a deaf-mute is dolt capax, no means have yet been discovered of bringing him to trial.’ _ “Certainly the system of laws of Scotland must be defective, under which important leading cases are decided, not on broad, general principles, but on mere formalities and technicalities. ‘‘ Beck cites two similar English cases, in each of which a deaf and dumb woman was arraigned for the murder of her illegitimate child; and both being found, on matters of form, not capable of taking a trial, were ordered to be confined in prison during the king’s pleasure. ‘The difficulty, in the first of these cases (that of Esther Dyson, at York Assizes, 1831) was, that her in- terpreter could not make her understand what was meant, when asked if she desired to challenge any of the jurors. We should suppose her counsel could have done that far better than she, even if more intelligent than she was, could have done it for herself. She was pronounced not of sound mind—that is, with regard to the ability to conduct her own defence with discretion. Pro- bably compassion had as much to do with this decision as reason.”?(mm) The manner in which deaf and dumb persons are to be arraigned has been noticed in another work.(n) | 2d. Blind. § 141. Blindness(v) can only come in question here when it is congenital or has originated in early infancy, for then only can it exercise decisive influ- ence on the mental and moral development. In general, however, blindness is no reason to suspend the personal responsibility of an agent; the defects of the mental and moral nature consequent upon it are not diseases; and the bearing which they have upon the degree of culpability ascribable to an act committed in violation of law, must be referred to the discretion of the court, as guided by the circumstances of each case.(w) (mm) Essay by Dr. Peet, already cited. (n) Wh. C. L. § 532. (v) Schiirmayer, Gericht. Med. 563; and see L. Krahmer, Handbuch de Gericht. Med. Halle, C. A. Schwetschke, 1851, § 122. (w) Compare Friedreich, 676, where the learning on this subject is collected. 144 BOOK I.] EPILEPTICS. [$ 145 3d. Lpileptics.(x) § 142. Epileptics, from their nervous susceptibility, and their tendency to mental alienation, should be regarded with peculiar tenderness by those to whom is committed the administration of public justice. Nor should the idea of a recent recovery ever exclude one who has been so afflicted, from that pro- tection which would secure at least a patient investigation of the question of moral responsibility. Recent investigations, conducted by men of eminent sagacity and great opportunities of observation, have led to the conclusion that epilepsy produces not only general mental prostration, but anomalies in the entire moral and intellectual system. And although the malady some- times coexists with great intelligence, yet the patient retains, not only during the attack, but for an indefinite period afterwards, but an imperfect use of his faculties. (y) § 143. Epilepsy consists in periodical attacks of insensibility, accompanied with involuntary, convulsive, and more or less violent motions of the limbs. That persons committing a violation of law while in this condition, are entitled to the full benefit of all the considerations which affect the responsibility of the agent, needs no argument after what has been already said on the subject of unsoundness of mind. The case, however, admits of more difficulty when the question is whether, in the interval between the attacks, a state of mind does or does not exist calculated to destroy or diminish responsibility. (z) § 144. It will be peculiarly necessary, here, to make a division between the several classes of epileptic diseases. The infirmity is well known to appear in very different degrees of intensity, under different circumstances, and as it arises from different physical causes, it may be considered as exerting different retroactive influences on the mind and the body. It may effect the intellectual faculties in a very subordinate degree, as the cases of men like Cesar, Napo- leon and Mohammed sufficiently prove. The doctrine therefore results, that in general epilepsy, the usual presumption of responsibility applies to acts committed in the intervals between one attack and another. In epilepsy, ac- cording to Briand, moral liberty is entirely suspended during the attacks. An epileptic who commits a homicide during the height of his disease, has had no criminal intention, and therefore cannot incur responsibility. It is also unjust to throw upon persons, thus affected, all the responsibility of actions which they may commit immediately before or after an attack, for authors are agreed in thinking, that whether these attacks occur frequently or rarely, the mind never fully recovers all its power. § 145. In particular cases the responsibility of the agent may be destroyed, where real symptoms of derangement present themselves, and where it is pos- sible or probable that the offence was brought on by such abnormal state of (x) See L. Krahmer, Handbuch del Gericht. Med. Halle, C. A. Schwetschke, 1851, § 122; see J. Briand, Méd. Lég. p. 568, Paris, 1852; M. Orfila, Méd. Lég. tome i. p. 332, Paris, 1848; M. Fairet, Cliniques de Médecine Mentale, p. 521, Paris, 1854. (y) Boileau de Castlenau: De l’épilepsie dans ses rapports avec l’aliénation mentale, considérés au point de vue médico-judiciare. Annales d’Hygiéne publ. et de Médecine Lég., Avril, 1842, No. 94. Erhardt-Ueber Zurechnungsfaihigkeit der Epileptischen. (z) Schiirmayer, Gericht. Med. § 565. 10 145 x § 148] RELATIONS OF EPILEPSY TO INSANITY. [BOOK I. the faculties. The higher grades of the disease, where it is of long standing, and where the attacks recur at brief intervals, cast a doubt upon the psychical ‘requirements of responsibility, even where nothing is observed which expressly characterizes an aberration of the mental faculties. The stage which imme- diately precedes an attack, the premonitory symptoms of heaviness in the head, dizziness, loss of consciousness, &c., as well as that which immediately suc- ceeds an attack, and consists in a manifest disorder of the bodily and mental functions of the subject, is to be treated as connected with the immediate attack. (a) § 146. The moral requirements of responsibility are satisfied when the dis- ease is not of great intensity, and where the intervals show no trace of an alteration of the intellectual functions produced by it, and the incitement to the act complained of is found not in the obtuseness or ebullition generally peculiar to such patient, but in a selfish motive, and where the execution of the act betrays forethought, reflection, and wilfulness. § 147. Persons truly epileptic are easily excited to anger and revenge on the slightest provocation, in the intervals between their attacks. Although these attacks do not always attain to such a degree as to deserve the name of mental derangement, yet it should never be forgotten that there is always a morbid predisposition to insane ebullitions, and in general a morbid irritability, which must impair, if not destroy, the moral responsibility of actions growing out of them. And even where a sentence of punishment is pronounced, it must not be overlooked that its execution may possibly exercise a most deleterious influence on the health of the individual, by aggravating the disease, and per- haps in forcing it into real insanity. Jt is not advisable, therefore, to exe- cute a sentence of punishment upon an epileptic, without having submitted the case to the examination of a duly authorized forensic physician. (b) § 148. Different views, however, have existed on this point. Platner(c) denies the responsibility of any epileptic whatever. Clarus(d) takes a view more in harmony with those we have just advanced, maintaining the following propositions ;— 1. All actions and omissions which take place during the paroxysm of epi- lepsy, are neither valid nor the subjects of responsibility. 2. When the attack of habitual epilepsy is succeeded by, or alternates with, a state of mania or imbecility, all responsibility is at an end, even where this latter state is but transitory, because no human insight or experience can decide with certainty, whether the patient, at that particular instant, was in an en- tirely sane condition. On the other hand, there are no reasons against the validity of civil acts done under such cireumstances. 3. Swooning, heaviness of the head, weakness of memory, restlessness, en- hanced irritability, &c., which precede or follow the attack, destroy as well the responsibility as the validity of acts committed during their continuance. 4, Where it is capable of proof, that the epileptics, in the intervals of their (a) Sehiirmayer, Gericht. Med. § 567. (6) Ibid. § 568. (c) Quaest. Med. For. p. vi. (d) Beitrage zur Erkenntniss und Beurtheilung zweifelhaften Seelenzustaendu, Leipsic, 1828, p. 96. 146 BOOK I.] EPILEPTICS. [$ 148 attacks, betray symptoms of malice and obtuseness, justice demands that their faults should be regarded as effects of the disease, and that they should be held irresponsible for acts committed in an ebullition of rage or other passion, while such condition should operate in mitigation where the crime presupposes forecast and reflection. 5. Where the signs of an altered state of mind are wanting both before and after the attacks, the possibility still remains that these signs continue undetected because of their minuteness, and that patients of this description are less able to resist sudden impulses than persons in good health; which would suggest a mitigation of punishment for actions of violent passion, but not for those involving reflection. 6. All these propositions only apply to idiopathic and habitual epilepsy ; not to isolated attacks, which ensue upon other diseases, and where no trace remains, after their cessation. T. The diseases connected with epileptic symptoms, particularly hysterical spasms, accompanied with insensibility, and diseases of the generic character of St. Vitus’s Dance, are subject to the rules above laid down, under the re- strictions mentioned in the last head, because the presumption of a latent pro- pensity to ebullitions of passion is not, in such cases, vouched by experienced. (e) (e) Compare, on the responsibility of epileptics, Friedreich, Handbuch der gericht- lichen Psychologie, p. 637, and Henke, Abhandlungen aus dem Gebiete der gericht- lichen Medizin, vol. iv. p.1. The Am. Journal of Insanity, vol. xii. p. 122, gives us a translation from portions of Delasiaure on Epilepsy. From this translation we extract the following passages :— “ Independently of a full appreciation of the disease in itself, and its mental conse- quences, the expert cannot examine too carefully the circumstances which attend the crime, the form under which it is accomplished, the motives which may have governed the epileptic, his subsequent conduct, his own plan of defence, &. We notice, in almost all the cases reported in the public papers and judiciary debates, singularities of expression, and strange details, which make us doubt, from the first, if they ema- nated from a sane intelligence. “With regard to the execution of the deed, ordinary criminals use all due precau- tions against discovery. It may be the same with some individuals who have acted under the impulse of an epileptic attack. More frequently, however, regardless of the effects and the morality of their actions, they make but feeble efforts at concealment. There are those who abandon themselves openly to their fury, multiplying their vic- tims without hesitation, gloating over their bodies, and, far from being intimidated by the presence of witnesses, seem often to find in them a new cause for excitement. “This disregard of every feeling of self-preservation, this contempt of danger, are, when found united, the best proofs of the absence of moral liberty. ‘ All epilepsy,’ says Mare, ‘warrants, upon the event of a criminal act, the suspicion of mental dis- order ;’ and he adds, ‘this suspicion is increased in absence of any strong personal motive.’ With this view other authors, and in the number Orfila, with more apparent sagacity, perhaps, than actual observation, considered, on the other hand, as an evi- dence of culpability the intentional secrecy by which the acts were characterized. “ However, some reflections suggested by the case of the patient H , to whom a feeling of jealousy could not have been foreign, make it obvious that it is necessary to modify this doctrine; since, in developing a peculiar irritability, ungovernable and fatal propensities, the mortal influence does not absolutely prevent the association and arrangement of ideas. Such an individual, who, in his intervals of reason and calm, would be able to control his impulses, runs the chance of yielding to them during intellectual excitement; as a man who would accomplish, under the influence of intoxication, a deed from which in cooler blood he might have recoiled. Epilepsy, judiciously remarks M. Boileau de Castelnau, destroys the power of justly estimating these prejudices, of duly appreciating their foundation, or resisting the extravagances to which they tend. “This epileptic susceptibility does not serve as a medium only for evil propensities : 147 § 149] RELATIONS OF EPILEPSY TO INSANITY. [BOOK I. V. MENTAL UNSOUNDNESS AS CONNECTED WITH SLEEP.(/) § 149. Under this general head may be grouped Somnoleniia, or Sleep drunkenness (Schlaftrunkenheit), Somnambulism, and Nightmare, the two (f) See Méd. Lég. M. Orfila, tome i. p. 456. Paris, 1848; Méd. Lég. M. Briand, p. 563. Paris, 1852; Renaudin sur L’Alienation Mentale, Chap. 6th, p. 255. Paris, 1854; Lecon’s Cliniques de M. Falret. Legon 4th, p. 117. Paris, 1854. it can of itself call them directly into play, excite and foster the idea of misdeed, and lead to its fatal realization. “A meningeal congestion, the result of numerous paroxysms, has recently carried off one of our most interesting patients. With a quick intelligence, a mild and be- nevolent disposition, none was more ready than he to recognize the least mark of solicitude of which he might be the object; but in the way of retaliation he was utterly ungovernable towards those who opposed his wishes. Nothing could induce him to renounce such prejudices ; and even with a disposition less yielding, the burn- ing threats to which he abandoned himself could have been easily carried into culpa- ble execution. “Scenes of vindictiveness and brutality, otherwise inexplicable, arise from this cause in our asylums. We had, during the past year, in our department, a poor Italian, the victim of the blind malevolence of some of his companions in misfortune, who combined to entrap him and overcome him with blows. None of the accomplices betrayed the plot. Such wanton cruelty could evidently be attributed only to morbid perversion, and a lethargic condition of moral liberty. “The situation and conduct of epileptics after the perpetration of a crime has been justly insisted upon as a matter of importance. They generally exhibit evident indi- cations of moral agitation. A dull expression, and a sinister lighting up of the coun- tenance, reveal in them a vague and gloomy inquietude. The co-ordination of ideas is usually slow and difficult. They confess, moreover, the crime with the less reserve, as they see in it only the effect of a justifiable defence, or of an involuntary impulse, and feel grief rather than remorse, regret rather than fear. If ignorant of the fatal consequences of their madness, they receive intelligence of it with strange impassa- bility, and, indifferent to the perils which threaten either their existence or their liberty, they neglect either to destroy the traces of their guilt, or to elude pursuit. When they fly, it is less to escape justice than the imaginary danger with which their persistent hallucinations surround them; and, finally, they make no resistance to the confinement to which they are subjected. “‘ Nevertheless, here, as in all opinions relative to epileptics, we must admit certain exceptions. Of those who, among others, appear to have been governed by a voluntary tendency, many appreciating the extent of the crime, not considering the influence exercised by the disease, and believing in an evil intention and in the existence of moral liberty, feel themselves under a serious responsibility. In this situation, and as epilepsy tends to exaggerate the instinct of cunning and of self-preservation, they have recourse, generally, to the artifices and subterfuges usually practised by ordi- nary criminals. Should the crime be evident, they appeal to their malady as an ex- cuse. In the other case, they endeavor to obscure the truth, contradict the testimony, establish an alzbi, and willingly conform to the plea of their counsel. “These circumstances do not necessarily imply to the criminal action an origin ab- solutely independent of a morbid impulse. It does not follow that, from the apparent consciousness which the criminal may have of his fault, and the manner in which he may repel the charges of the accusation, the magistrates should infer the freedom of will, and responsibility in the commission of the act. “There are, at times, certain accessory considerations, in reference to epilepsy, which may arise during the progress of a judicial trial. Dr. Jahn has very wisely observed, that certain sensorial impressions are of a nature, owing to the bias which they im- parted to the mind, to suggest pernicious fancies. For example, the sight of blood- shed is sufficient to create in a patient, either the apprehension of criminal designs upon himself, or the imagined necessity of killing others. A young man, under the influence of his epileptic fears, saw a hatchet in an unaccustomed place, and supposed it designed for his destruction; thus showing that this instrument, to which is at- tached a sinister impression, had been capable of awakening a series of analogous conceptions. Who is ignorant of the strange effects of the imagination—the singu- larities of the imitative faculty? Who has not seen that the simple reading of a noto- rious criminal affair—the recital of a murder, of an incendiarism, or of a suicide— lead, in predisposed organization, to the perpetration of the identical deed ? 148 BOOK I.] MENTAL UNSOUNDNESS AS CONNECTED WITH SLEEP. [§ 150 last of which may be joined.(g) In the forensic treatment of such maladies, each case must depend upon its own circumstances, when it will also be im- portant for the judge to consider whether*the person subject to such a dis- order was properly aware of it, and of the possible consequences, and able to take the precautions by which those consequences might have been averted. § 150. Sleep would seem to be only a peculiar form of cerebral life, and not a negation of the life of the brain, producing consequent fatigue, exhaustion ° or weakness; it is not to be supposed that the state of sleep issues out of the intellect itself, but the intellect is diverted by the peculiar change of the action of the brain into that state of existence which we call sleep. But the intellect does not sleep; nor can it ever be said that its activity diminishes during sleep; we merely cease to perceive its activity. But that the activity which involves sleep may also be morbid—abnormal—and connected with cramps or convulsive symptoms, is not to be doubted. The centripetal action of the senses is extinct during sleep, in dreams it is half active, and produces isolated, dim, and hazy sensations, forming the usual substratum of dreams. Sleep is interrupted by whatever terminates the peculiar condition of the brain upon which sleep depends; by the natural expiration of the state of the brain, by vivid and sudden impressions on the senses, and by disagreeable sensations. Now, in a certain morbid condition of the brain this awaking is not complete, and does not restore the waking state with a full and correct perception of surrounding things—but an intermediate state between sleeping and waking is produced, which resembles intoxication, and is called the intoxication of sleep (schlaftrunkenheit). This state admits of action, which is directed by the phantoms of the dream; talking in sleep being very nearly allied to wak- ing, and dreams themselves being midway between sleeping and waking, for in the depths of sleep we no longer become conscious of dreams.(h) The neght- “Certain atmospherical conditions have also an influence. We know, especially,. that intense heat, in creating a flow of blood to the brain, often produces mental dis- turbance. Admissions to our insane hospitals are never more frequent than during the dog-days. It would, therefore, be advisable to take into consideration such an influence, if, by its coincidence with the period of the crime, it would seem to have acted upon the moral disposition of the accused. ‘‘There would be, above all, strong reasons for believing in the absence of moral liberty, if it were proven that the epileptic had lately abandoned himself to the use of alcoholic drinks ; nothing, we repeat with M. Renaudin, being more capable, not only of aggravating the attacks, but, still more, of giving rise to sinister hallucinations. = “We have now examined the principal elements of epileptic responsibility which are calculated to enlighten the judgment of magistrates. The necessity of more ex- tended information on this subject becomes more pressing when we reflect that instances are not wanting where justice has visited with unmerited punishment those who have unhappily yielded only to a pathological instigation. In some cases the proofs are sufliciently evident to admit of an easy demonstration; in others, on the contrary, the known quantities of the problem are much more uncertain. It is here that wisdom in the judge should be united with a lively solicitude. Therefore, with the purpose of promoting the success of his examinations, upon a subject compara- tively new, and which has excited but little attention, we think we are responding to an absolute necessity when we support the preceding rules by a brief exposition of several judicial causes, capable of serving as a guide in cases under analogous circum- stances.” (g) Siebold—Lehrbuch der Gericht. Med. Berlin, 1847, § 196; L. Krahmer, Hand- buch der Gericht. Med. Halle, C. A. Schwetschke, 1851, § 115. (h) The following extract from the Médecine Légale, &c. J. Briand, is very pertinent to this point :— “De méme que, lorsque nous nous endormons, nous conservons encore plus ou moins 149 § 152] SOMNOLENTIA, OR SLEEP-DRUNKENNESS. [BOOK I. mare is grounded upon a morbid aggravation of abnormal sensations in sleep as colored by dreams; under certain external circumstances, and certain forms of transition into the state of semi-consciousness, it may lead to acts of vio- lence. In examining such cases it is important to inquire into the existence of abnormal physical conditions, such as plethora, predisposition to conges- tions in the head or breast, actual congestions, diseases of the heart, abnormal plethora, suppressed hemorrhoids, eruptions of the skin, or other habitual secretions which have been driven in, nervous affections of various kinds, im- pure air in the bed-room, a hearty meal, or indulgence in ardent spirits immediately or shortly before going to sleep. Somnambulism is not a mere intensified dream, but in foro medico, must be treated as a morbid inde- pendent state, and in a legal point of view, every act shown to have been committed under its influence is to be disconnected with voluntary moral agency.(7) 1st. Somnolentia, or Sleep-drunkenness. § 151. Sleep-drunkenness may be defined to be the lapping over of a pro- found sleep on the domains of apparent wakefulness, producing an involuntary intoxication on the part of the patient, which destroys at the time his moral agency. Under the name of Somnolentia, which was given to it by Ploucquet and the consequent French writers, and of Schlaftrunkenhett, which it was styled by the German school, it became the subject of general discussion at the beginning of the present century. The first case in which the symptoms were unmistakably observable, was that of Buchner.(j7) A sentry, who had fallen asleep during his watch, being suddenly aroused by the officer in com- mand, fell upon the latter with his drawn sword, with an attack so furious that the most serious consequences were only averted by the interposition of bystanders. The result of the medical examination was, that’ the act was involuntary and irresponsible, being the result of a violent confusion of mind consequent upon the sudden involuntary waking from a profound sleep. § 152. Shortly afterwards occurred the case of a day-laborer, who killed his wife with a wagon-tire, the blow being struck immediately upon his starting up from a deep sleep, from which he was forcibly awakened. In this case, there was evidence aliunde that the defendant was seized when waking with a delusion that a “‘woman in white” had snatched his wife from his side and was carrying her away, and that his agony of mind was so great that his whole body was wet with perspiration. There was no doubt of the defendant’s irre- longtemps Vidée des objets dont nous venons de nous occuper, et que notre imagina- tion nous les retrace souvent dons nos réves ; de méme aussi, lorsque des idées plus ou moins bizarres, plus ou moins extravagantes, se sont emparées de notre esprit pendant le sommeil, elles ne nous quittent pas tout d’un coup, quand nous nous réveillons. Pour peu que le réveil soit brusque, les premiers objets qui frappent nos sens sont mo- difiés por ces idées antécédentes, comme 4 la faible lumére de la nuit les objets qu’ nous voyons sont alterés par les fantémes de notre imagination. Nous sommes deja en état d’éxecuter des mouvements avec une certaine précision que nos sens ne sont pas encore completément éveillés: et souvent ces mouvements se rapportent, non pas a notre état réel, mais 4 celui dans lequel nous croyons étre, en melant aux idées qui nous ont occupés les sensations obscures des objets qui nous environnet reellement.” —WMéd. Lég. p. 563. Paris, 1852. (i) Schiirmayer, Gericht. Med. § 561. (7) See Henke’s Zeitschr. 10 B. p. 39. 150 BOOK I.] MENTAL UNSOUNDNESS CONNECTED WITH SLEEP. [$ 158 sponsibility.(4) In this country, the case properly would fall under the head of excusable homicide by misadventure.(/) In point of result, these cases vary little from an early English case, in which, though there was no psychological question opened, there were the same delusions as to danger heightened by the same disturbance of mind as is produced by a sudden waking up from a deep sleep. The defendant, being in bed and asleep in his house, his maid-servant, who had hired the deceased to help her to do her work, as she was going to let her out about midnight, thought she heard thieves breaking open the door, upon which she ran up stairs to the defendant, her master, and informed him thereof. Suddenly aroused, he sprang from his bed, and running down stairs with his sword drawn, the deceased hid herself in the butlery, lest she should be discovered. The defendant’s wife, observing some person there, and not knowing her, but conceiving she was a thief, cried out, ‘“ Here are they who would undo us ;’’ and the defendant, in the paroxysm of the moment, dashing into the butlery, thrust his sword at the deceased and killed her.(m) The defendant was acquitted under the express instructions of the court, and the case has stood the test of the common law courts for over two hundred years, during which it has never been questioned. It is important to observe, how- ever, that if it differs from the two cases already noticed under this head, in the increased naturalness of the delusion under which the defendant was labor- ing, it differs from them in the comparatively longer interval in which his perceptive faculties had the opportunity to arrange themselves. Let it be supposed that it was the wife, and not the husband, who had slain the deceased. Under the circumstances, the result would hardly have been differ- ent, and yet in this case the distinction between her responsibility and that of the laborer who killed his wife on the waking spasm, is simply in the degree of probability of delusions, which in both cases were unfounded: If in the one case, this improbability was more glaring, let it be recollected that there was much less time afforded to the patient to compose himself to a reasoning state of mind. § 153. Much more recently, a case has occurred which has led to the whole question being re-examined and discussed. A young man, named A. F., about twenty years of age, was living with his parents in great apparent harmony, his father and himself being alike distinguished for their extravagant devotion to hunting. In consequence of the danger of nocturnal attacks, they were in the habit of taking their arms with them into their chamber. On the after- noon of September Ist, 1839, the father and son having just returned from hunting, their danger became the subject of particular conversation. The next day the hunting was repeated, and on their return, after taking supper with the usual appearance of harmony, the family retired at about ten o’clock, the father and mother occupying one apartment, and the son the next, both father and son taking their loaded arms with them to bed. At one o’clock, the father got up to go into the entry, and on his return, jarred against the door opening into the entry, upon which the son instantly sprang up and discharging his (k) Wildberg’s Jahrbuch, 2 Bd. p. 32. (1) See Wharton on Hom. 210. (m) Levet’s case, Cro. Car. 438; 1 Hale, 42, 474. igs § 153] SOMNOLENTIA, OR SLEEP-DRUNKENNESS, [BOOK I. gun at the father, gave the latter a fatal wound in the breast, crying at the same time, ‘‘Dog, what do you want here?’ The father fell immediately to the ground, and the son, then first recognizing him, sank on the floor crying, —“O! Jesus, it is my father.”” The evidence was, that the whole family were subject to great restlessness in their sleep, and that the defendant in particular was affected by a tendency to be easily distressed by dreams, which lasted for about five minutes on waking, before their effect was entirely dissipated. His own version of the affair was, ‘‘I must have fired the gun in my sleep; it was moonshine, and we were accustomed to talk and walk in our sleep. I recol- lect hearing something jar; I jumped up, seized my gun and shot where I heard the noise. I recollect seeing nothing, nor am I conscious of having spoken. The night was so bright that everything could have been seen. I must have been under the delusion that thieves had broken in.”? The concur- rent opinions of the medical experts examined on the trial were, that the act was committed in a state of Somnolentia or Sleep-drunkenness, and that it was not that of a free and responsible agent. (7) It is important to distinguish Somnolentia, or Sleep-drunkenness, which is a state which to a greater or less extent is incidental to every individual, from Somnambulism, which is an abnormal condition incident to a very few. The experience of every-day life demonstrates how much the former enters into almost every relation. Children, particularly, sometimes struggle convulsively in the effort to wake up, which often is continued for several minutes. The very exclamations, “Wake up,’’—“ Come to’’—which are so common in ad- dressing persons in the waking condition, are scarcely necessary to bring to the mind many recollections of cases where the waking struggle has been pecu- liarly protracted. Of course there are constitutions where this struggle is peculiarly distressing, just as there are constitutions in which the tendency to sleeplessness is equally marked. Dr. Kriigelstein tells us of a merchant of distinction who had an irrepressible tendency to sleep in the afternoons, and yet who, whenever he was wakened up, was for a few moments overcome with a paroxysm, over which he had no control. Dr. Meister himself(o) relates the following phenomenon: ‘I was obliged to take a journey of eight miles on a very hot summer’s day, my seat being with my back to the horses, and the sun directly in my face. On reaching the place of destination, and being very weary and with a slight headache, I laid myself down, with my clothes on, gn a couch. I fell at once asleep, my head having slipped under the back of the settee. My sleep was deep, and, as far as I can recollect, without dreams. When it became dark, the lady of the house came with a light into | the room. I suddenly awoke, but for the first time in my life, without collect- ing myself. I was seized with a sudden agony of mind, and picturing the object which was entering the house as a spectre, I sprang up and seized a stool, which, in my terror, I would have thrown at the supposed shade. For- tunately, I was recalled to consciousness by the firmness and tact of the lady (n) Henke’s Zeitschrift, 1853, vol. Ixv. pp. 190-1; and see also a case of much greater doubt in Klein’s Annalen der Gesetzgebung, Sc. viii. B. Berlin, 1798; and Mollers gerichtliche Arzneiwissen-schaft, vol. i. 302. (0) Henke’s Zeitschrift, vol. Ixv. 456. 152 BOOK I.] MENTAL UNSOUNDNESS CONNECTED WITH SLEEP. [8 157 herself, who, with the greatest presence of mind, succeeded in composing my attention until I was entirely awakened.’ § 154. The existence of this intermediate state between sleeping and wak- ing, and of the “drunkenness” by which it is sometimes accompanied, is recog- nized by even the older elementary writers. Thus Wendler(p) says: ‘ Dis- cerni autem possit expergefactio naturalis a preternaturali. Etenim somno sensim reficitur sensibilitas animi, que, cum in eum evehitur gradum, ut solemnibus pistoque non fortioribus excitamentis ad cogitandum excitetur, naturalis expergefactio est; contra ubi facultate illa parum aucta, insolita incitamentorum vis animum cogit ad statum vigilis, preternaturalem hance dicimus expergefactionem.”’ § 155. The following tests it is important to apply in order to determine the question of responsibility :— (a.) A general tendency to deep and heavy sleep must be shown, out of which the patient could only be awakened by violent and convulsive effort. (b.) Before falling asleep, circumstances must be shown producing disquiet which sleep itself does not entirely compose. (c.) The act under examination must have occurred at the time when the defendant was usually accustomed to have been asleep. | (d.) The cause of the sudden awakening must be shown. It is true that this cannot always happen, as sometimes the start may have come from a vio- lent dream. (e.) The act must bear throughout the character of unconsciousness. (f) The actor himself, when he awakes, is generally amazed at his own deed, and it seems to him almost incredible. Generally speaking, he does not seek to evade responsibility, though there are some unfortunate cases in which the wretchedness of the sudden discovery overcomes the party himself, who seeks to shelter himself from the consequences of a crime of which he was technically, though not morally, guilty. § 156. A late very intelligent observer, Dr. Kriigelstein, has given us a critical and extended observation of those cases in which crimes have been committed in the supposed somnambulic state, in which he draws the infer- ences that this species of mania occurs chiefly, if not entirely, with persons who are sound sleepers and are suddenly startled by some violent exterior cause, from a sleep which, from indigestion or other causes, has been already disturbed and excited by dreams of peculiar vivacity. Such cases are univer- sally marked with a want of consciousness in the actor, and followed, when he awakes, with entire astonishment and then violent remorse. (q) § 157. Dr. Taylor, in his admirable treatise,(7) gives us the following cases on the same point :— A peddler who was in the habit of walking about the country armed with a sword-stick, was awakened one evening, while lying asleep on the high road, by a man who was accidentally passing, seizing him and shaking him by the (p) Dissertatio de Somno. Lipsiz, 1805, p. 23. (q) Kriigelstein, Ueber die in Zustande der Schlaftrunkenheit veriibten Gewalttha- tigkeiten in gerichtsarztlicher Beziehung. (r) Med. Jur. 599, 600. 153 § 153] SOMNOLENTIA, OR SLEEP-DRUNKENNESS. [BOOK I. shoulders. The peddler suddenly awoke, drew his sword and stabbed the man, who afterwards died. He was tried for manslaughter. His irresponsibility ’was strongly urged by his counsel on the ground that he could not have been conscious of an act perpetrated in a half-waking state. This was strengthened by the opinion of the medical witness. The prisoner was, however, found guilty. Under such circumstances it was not unlikely that an idea had arisen on the prisoner’s mind that he had been attacked by robbers, and therefore stabbed the man in self-defence.(s) Dr. Hartshorne, in a note, tells us that a somewhat similar case occurred in Philadelphia, a few years back, in which a man was shot with a pistol by an acquaintance, whom he had suddenly aroused from sleep, late at night, in an open market house. The plea was, that the deceased was mistaken for a robber when the pistol was fired; but the jury found a verdict of man- slaughter. § 158. Two persons, in a case cited by Mr. Best, who had been hunting during the day, slept together at night. One of them was renewing the chase in a dream, and imagining himself present at the death of the stag, cried out “Vl kill kim! Pll kill him!” The other, awakened by the noise, got out of bed, and by the light of the moon beheld the sleeper give several deadly stabs with a knife, in that part of the bed which his companion had just quitted. Suppose a blow, given in this way, had proved fatal, and the two men had been shown to have quarrelled previously to retiring to rest! But a defence of this kind, as is well remarked by Dr. Taylor, may be unduly strained. Thus, where there is an enmity, with a motive for the act of homicide, the murderer while sleeping in the same room may select the night for an assault, and perpetrate the act in darkness in order the more effectually to screen him- self. In the case of Reg. v. Jackson,(¢) it was urged in defence that the prisoner, who slept in the same room with the prosecutor, had stabbed him in the throat, owing to some sudden impulse during sleep; and the case of Mil- ligan, above given, was quoted by the learned counsel, in support of the view that the prisoner was irresponsible for the act. It was proved, however, that the prisoner had shown malicious feeling against the prosecutor, and that she wished him dead. The knife with which the wound had been inflicted bore the appearance of having been recently sharpened, and the prisoner must have reached over her daughter (the prosecutor’s wife), who was sleeping in the same bed with him, in order to produce the wound. These facts are quite adverse to the supposition of the crime having been perpetrated under an im- pulse from sleep, and the prisoner was convicted. In another case, Reg. v. French,(u) it was proved that the prisoner while sleeping in the same room had killed the deceased, who was a stranger to him, under some delusion. There was, however, clear evidence that the prisoner was insane, and on this ground he was acquitted under the direction of the judge.(v) (s) The Queen v. Milligan. Lincoln Aut. Assizes, 1836. (¢) Liverpool Anptumn Ass. 1847. (u) Dorset Autumn Ass. 1846. (v) Taylor’s Med. Jurisprudence, pp. 599, 600. 154 BOOK I.] MENTAL UNSOUNDNESS CONNECTED WITH SLEEP. _[§ 160 2d. Somnambulism.(w) § 159. “Dreaming,” says Dr. Rush, ‘‘is a transient paroxysm of delirium. Somnambulism is nothing but a higher grade of the same disease. It is a transient paroxysm of madness. Like madness, it is accompanied with mus- cular action, with incoherent or coherent conduct, and with that complete oblivion of both which takes place in the worst grade of madness. Coherence of conduct discovers itself in persons who are affected with it undertaking, or resuming certain habitual exercises or employments. Thus we read of the scholar resuming his studies, the poet his pen, and the artisan his labors, while under its influence, with their usual industry, taste, and correctness. It ex- tended still further in the late Dr. Blacklock, of Edinburgh, who rose from his bed, to which he had retired at an early hour, came into the room where his family were assembled, conversed with them, and afterwards entertained them with a pleasant song, without any of them suspecting he was asleep, and without his retaining after he awoke the least recollection of what he had done.’ (x) § 160. A late authoritative writer(y) gives us, in great minuteness, a nar- rative of a young woman, a somnambulist, who, when twenty-three years old, having been previously in good health and regular in her menstruation, was seized with epilepsy in consequence of a fright produced by an attack of rob- bers. She soon became the victim of somnambulism, which manifested itself in all its ordinary incidents, such as deep sleep, want of memory, and firmness in her movements when under its influence. While in the somnambulic con- dition she had the habit of concealing articles of various kinds, the result of which was that she was charged with theft. Under the advice of Dr. Dorn- bliith she was finally acquitted, and under his care was gradually restored to health. Dr. Upham gives us the following American illustration: “A farmer, in one of the counties of Massachusetts, according to the account of the matter which was published at the time, had employed himself for some weeks in the winter, thrashing his grain. One night, as he was about closing his labors, he ascended a ladder to the top of the great beams in the barn, where the rye which he was thrashing was deposited, to ascertain what number of bundles remained unthrashed, which he determined to finish the next day. The en- suing night, about two o’clock, he was heard by one of the family to arise and go out. He repaired to his barn, being sound asleep and unconscious of what he was doing, set open his barn doors, ascended the great beams of the barn where his rye was deposited, threw down a flooring, and commenced thrashing it. When he had completed it, he raked off the straw and shoved the rye to one side of the floor, and again ascended the ladder with the straw, and depo- sited it on some rails that lay across the great beams. He then threw down (w) H. L. Heim, vermischte med. Schriften, herausg. von A. Paetsch. Leipsic, 1836, § 336. L. Krahmer, Handbuch der Gericht. Med. Halle, C. A. Schwetschke, 1851, § 115. Siebold, Lehrbuch der Gericht. Med. Berlin, 1847, § 196. : (x) Rush on the Mind, pp. 302, 303. (y) Dornbliith, Geschichte einer Nachtwandlerin, Henke’s Zeitschrift, xxxii. 2. 155 § 161] SOMNAMBULISM. [BOOK I. another flooring of rye, which he thrashed and finished as before. Thus he continued his labors until he thrashed five floorings, and on returning from throwing down the sixth and last, in passing over part of the haymow, he fell off, where the hay had been cut down about six feet, to the lower part of it, which awoke him. He at first imagined himself in his neighbor’s barn; but after groping about in the dark for a long time, ascertained that he was in his own, and at length found the ladder, on which he descended to the floor, closed his barn doors, which he found open, and returned to his house. On coming to the light he found himself in such a profuse perspiration that his clothes were literally wet through. The next morning, on going to his barn, he found that he had thrashed during the night, five bushels of rye, had raked the straw off in good order, and deposited it on the great beams, and carefully shoved the grain to one side of the floor, without the least consciousness of what he was doing, until he fell from the hay.’’(z) “A man in this state,” says Falret, ‘has no longer the same relations with the exterior world. He enters into movements which seem the result of the will, since he avoids blows and falls with the greatest nicety; and yet he does not seem to see, or at least his sight appears very confused. The mind is evidently in action, since somnambulists often write things which they were unable to do when awake; maintain conversation, and perform actions implying regular ideas. And yet after the attack they preserve no remembrance of their thoughts, feelings, or actions, as if consciousness had been entirely obliterated whilst it lasted.’’ (a) § 161. The views of Abercrombie have been so long the standard on this point that we cannot refrain from giving them here in full: “Somnambulism,” he says, “appears to differ from dreaming chiefly in the degree in which the bodily functions are affected. The mind is fixed in the same manner as in dreaming, upon its own impressions as possessing.a real and present existence in external things; but the bodily organs are more under the control of the will, so that the individual acts under the influence of erroneous conceptions, and holds conversation in regard to them. He is also, to a certain degree, susceptible of impressions from without, through his organs of sense; not, however, so as to correct his erroneous impressions, but rather to be mixed up with them. A variety of remarkable phenomena arise out of these peculiari- ties, which will be illustrated by a slight outline of this singular affection. The first degree of somnambulism generally shows itself by a propensity to talk during sleep—-the person giving a full and connected account of what passes before him in dreams, and often revealing his own secrets or those of his friends. Walking during sleep is the next degree, and that from which the affection derives its name. The phenomena connected with this form are familiar to every one. ‘The individual gets out of bed; dresses himself; if not prevented, goes out of doors ; walks frequently over dangerous places in safety ; sometimes escapes by a window and gets to the roof of a house; after a con- siderable interval, returns and goes to bed; and all that has passed conveys to (z) Upham on Mental Action, pp. 182, 183. (a) Legons Cliniques de l’Alienation Mentale, par M. Falret, Legon 4, p. 121. Paris, 1854. 156 BOOK I.] MENTAL UNSOUNDNESS CONNECTED WITH SLEEP. [$ 161 his mind merely the impression of a dream. A young nobleman mentioned by Hortensius, living in the citadel of Breslau, was observed by his brother, who occupied the same room, to rise in his sleep, wrap himself in a cloak, and escape by a window to the roof of the building. He there tore in pieces a magpie’s nest, wrapped the young birds in his cloak, returned to his apart- ment, and went to bed. In the morning he mentioned the circumstance ag having occurred in a dream, and could not be persuaded that there had been anything more than a dream, till he was shown the magpies in his cloak. Dr. Prichard mentions a man who rose in his sleep, dressed himself, saddled his horse, and rode to the place of a market which he was in the habit of at- tending once every week; and Martinet mentions a man who was accustomed to rise in his sleep and pursue his business as a saddler. There are many in- stances on record of persons composing, during the state of somnambulism: as of boys rising in their sleep and finishing their tasks which they had left incomplete. A gentleman at one of the English universities had been very intent during the day in composition of some verses, which he had not been able to complete : during the following night he arose in his sleep and finished his composition, then expressed great exultation, and returned to bed. In these common cases, the affection occurs during ordinary sleep; but a condition very analogous is met with, coming on in the daytime, in paroxysms, during which the person is affected in the same manner as in the state of somnambulism, particularly with an insensibility to external impressions: this presents some singular phenomena. These attacks. in some cases come on without any warning ; in others, they are preceded by a noise or sense of confusion in the head. The individuals then become more or less abstracted, and are either unconscious of any external impressions, or very confused in their notions of external things. They are frequently able to talk in an intelligible and con- sistent manner, but always in reference to the impression which is present in their own minds. ‘They in some cases repeat long pieces of poetry, often more correctly than they can do in their waking state, and not unfrequently things which they could not repeat in their state of health, or of which they were supposed to be entirely ignorant. In other cases they hold conversations with imaginary beings, or relate circumstances or conversations which occurred at remote periods, and which they were supposed to have forgotten. Some have been known to sing in a style far superior to anything they could do in their waking state ; and there are some well-authenticated instances of persons in this condition expressing themselves correctly in languages with which they were imperfectly acquainted. I had lately under my care a young lady who is liable to an affection of this kind, which comes on repeatedly during the day, and continues from ten minutes to an hour at atime. Without any warning, her body became motionless, her eyes open, fixed, and entirely insensible, and she became totally unconscious of any external impression. She has been frequently seized while playing on the piano, and has continued to play, over and over, part of a tune with perfect correctness, but without advancing be- yond a certain point. On one occasion she was seized after she had begun to play from the book a piece of music which was new to her. During the pa- roxysm she continued the part which she had played, and repeated it five or 157 § 161] SOMNAMBULISM. [BOOK I, six times with perfect correctness; but on coming out of the attack, she could not play it without the book. During the paroxysms the individuals are, in some instances, totally insensible to anything that is said to them; but in others, they are capable of holding conversation with another person with a tolerable degree of consistency, though they are influenced to a certain degree by these mental visions, and are very confused in their notions of external things. In many cases, again, they are capable of going on with the manual occupations in which they had been engaged before the attack. This occurred remarkably in a watchmaker’s apprentice mentioned by Martinet. The pa- roxysms on him appeared once in fourteen days, and commenced with a feeling of heat extending from the epigastrium to the head. This was followed by confusion of thought, and this by complete insensibility: his eyes were open, but fixed and vacant, and he was totally insensible to anything that was said to him, or to any external impression. But he continued his usual employ- ment, and was always much astonished, on his: recovery, to find the change that had taken place in his work since the commencement of his paroxysm. This case afterwards passed into epilepsy. Some remarkable phenomena are presented by this singular affection, especially in regard to exercises of memory and the manner in which the old associations are recalled into the mind: also, in the distinct manner in which the individuals sometimes express themselves on subjects with which they had formerly shown but an imperfect acquaintance. In some of the French cases of epidemic ‘‘extase,’’ this had been magnified into speaking unknown languages, predicting future events, and describing occurrences of which the persons could not have possessed any knowledge. These stories seem, in some cases, to resolve themselves merely into embellish- ment of what really occurred, but in others there can be no doubt of connivance and imposture. Some facts, however, appear to be authentic, and are suffi- ciently remarkable. Two females, mentioned by Bertrand, expressed themselves during the paroxysm very distinctly in Latin. They afterwards admitted that they had some acquaintance with the language, though it was imperfect. An ignorant servant-girl, mentioned by Dr. Dewar, during paroxysms of this kind showed an astonishing knowledge of geography and astronomy ; and expressed herself in her own language in a manner which, though often ludicrous, showed an understanding of the subject. The alternations of the seasons, for example, she explained by saying that the world was set a-gee. It was afterwards dis- covered that her notions on this subject had been derived from hearing a tutor giving instructions to the young people of the family. A woman who was some time ago in the Infirmary of Edinburgh on account of an affection of this kind, during her paroxysms mimicked the manner of the physicians, and repeated correctly some of their prescriptions in the Latin language. Another very singular phenomenon presented by some instances of this affection is what has been called, rather incorrectly, a state of double consciousness. It consists in the individual recollecting, during a paroxysm, circumstances which occurred in a former attack, though there was no remembrance of them during the in- terval. This, as well as various other phenomena connected with the affection, is strikingly illustrated in a case described by Dr. Dyce, of Aberdeen, in the Edinburgh Philosophic Transactions. The patient was a servant-girl, and 158 BOOK I.] MENTAL UNSOUNDNESS CONNECTED WITH SLEEP. [$ 161 the affection began with fits of somnolency, which came upon her suddenly during the day, and from which she could, at first, be aroused by shaking, or by being taken out in the open air. She soon began to talk a great deal during the attacks, regarding things which seemed to be passing before her, as a dream; and she was not, at this time, sensible of anything that was said to her. On one occasion she repeated distinctly the baptismal service of the Church of England, and concluded with an extemporary prayer. In her sub- sequent paroxysms she began to understand what was said to her, and to answer with a considerable degree of consistency, though the answers were generally, to a certain degree, influenced by her hallucinations. She also be- came capable of following her usual employments during the paroxysm ; and at one time she laid out the table correctly for breakfast, and repeatedly dressed herself and the children of the family, her eyes remaining shut the whole time. The remarkable circumstance was now discovered, that during the paroxysm she had a distinct recollection of what took place in her former paroxysms, though she had no remembrance of it during the intervals.