Copyright
Francis Wharton.

Wharton and Stillé's medical jurisprudence .. (Volume 1) online

. (page 1 of 147)
Online LibraryFrancis WhartonWharton and Stillé's medical jurisprudence .. (Volume 1) → online text (page 1 of 147)
Font size
QR-code for this ebook


mFmmmm:^






~.t";,\';.ic:{^-yrr.-<,*^Vu'.i;:-;-'.;''r;-tiC.



'














; A






i










! U






)










; 8




_^=^ <-,


' 5






1










2






9






2






==3


3








UNIVERSITY

OF CALIFORNIA

LOS ANGELES



SCHOOL OF LAW
LIBRARY



<X Srr''-^



y



WHARTON AND STILLE'S

MEDICAL JURISPRUDENCE

VOL. I

MENTAL UNSOUNDNESS



LEGAL QUESTIONS

BY

FRANK H. BOWLBY

Of the Publishers' Editorial Staff



INSANITY: FORMS AND MEDICO-LEGAL RELATIONS

BY

JAMES HENDRIE LLOYD, A.M., M.D.

Nburoloqist to the Philadelphia Hospital; Physician to the Methodist

Episcopal Hospital; Consulting Neurologist to the State

Hospital for the Chronic Insane at Wer-

NEBSVILLE, PA.



FIFTH EDITION



ROCHESTER, N. Y.:

»HB LAWYERS' CO-OPERATIVE PUBLISHING COMPANY

1905



T



Entered according to Act of Congress, in the year eig-btecn hundred fifty-five, by

KAY & BROTHER,

In the Office of the Clerk of the District Court of the United States

In and for the Eastern District of Pennsylvania.

Entered according to Act of Congress, in the j'ear eighteen hundred sixty, by

KAY & BROTHER,

In the CJerk's Office of the District Court of the United States

In and for the Eastern District of Pennsylvania.

Entered according to Act of Congress, in the year eighteen hundred seventy-two, by

KAY & BROTHER,

In the Office of the Librarian of Congress, at Washington.

Entered according to Act of Congress, in the year eighteen hundred eighty-two, by

FRANCIS WHARTON,

In the Office of the Librarian of Congress, at AVashington.

Entered according to Act of Congress in the year nineteen hundred five, by

LAWYERS' CO-OPERATIVE PUBLISHING COMPANY,

In the Office of the Librarian of Congress, at Washington, D. C.



3-?>if?/



E. R, Andbbws Pbinting Company, Rochester, N. Y.






PREFACE TO THE THIRD EDITION.



Since the publication, in 1860, of the second edition of this work,
the specialty of psychological law has taken a shape which has made
necessary the preparation of a treatise which is substantially new.
The circumstances which have led to this change may be thus stated.

Until the close of the last century, insanity received but little
attention from physicians, and still less from psychologists. "Luna-
tics," to follow the barbarous old English designation, were regarded
as outcasts, mostly incurable; as devoid of those sensibilities which
call for tender care; as presenting little more claim to philanthropic
consideration than do brutes. Unless birth or wealth gave special
opportunities for their custody at home, they were huddled, in
England and France, in pens, or chained in cells, where they were
generally subjected to treatment the most brutal. In New England
they were often let out by the town to the lowest bidder, who under-
took to support them for a pittance scarcely sufficient to buy offals for
their food, and who permitted them, when they were gentle, to roam
at large, or chained them, when violent, in stables. Asylums, as
reformatory and hygienic establishments, were unknowQ. Hence
arose the tendency, both of phychologists and courts, to narrow the
definition of insanity so as to reduce, as far as possible, the numbers
of the class who were to be subjected to so wretched a doom.

But, on the insanity of George III., a new era came in. Insanity
could not be so vulgar a thing when it attacked the King. It could
scarcely be regarded by loyal Englishmen as a merited curse, when
it visited a prince of whose virtues they were justly proud, and of
whose obstinate self-will they were blindly ignorant. Philanthro-
pists as well as philosophers poured in with abundant advice as to
the tenderest treatment to be applied to the royal sufferer ; and com-
mittees of the House of Commons vied with medical commissions in
speculating on the characteristics of a malady which had become
exalted in the exaltation of the victim on whom it had pounced.
Fortunately for the interests of humanity, almost simultaneously took
place in Paris the investigations of Pinel. This remarkable man, who
united in rare excellence great administrative power, untiring



iv PREFACE TO THE THIRD EDITION.

patience of research, and singular attractiveness of style, found the
Bicetre, when he took medical charge of it, in 1791, in a condition
at which humanity shuddered. It combined, under one general super-
intendence, the functions of almshouse, prison, nursery, foundling-'s
home, and lunatic asylum, wdth no distinction made in the treatment
of crime and of disease. Such patients as could do so without dis-
turbance mingled with the other inmates of this vast abode of wretch-
edness and of guilt ; but those who were in any way troublesome were
chained in damp and putrid cells, under the charge of convicts whose
desperateness seemed to constitute their title to this distinction.
Against this inhumanity Pinel protested with such untiring and
dauntless eloquence that he succeeded in effecting a thorough reforma-
tion. A separate asylum, based on wise sanitary regulations, was
opened for the insane, and subsequently the Salpetriere, a distinct
establishment for deranged women, was organized under his particu-
lar care. He was succeeded at the Salpetriere by Esquirol, who had
been his assistant, and by whom his wise hygienic reforms were
further elaborated and extended.

Nor did the efforts of these eminent physicians stop at the amel-
ioration of the physical and mental condition of the insane. Madness
having been shown to be capable of cure, and to be a condition in
itself implying no moral stigma, and insane asylums having been
proved to be the places where the insane can most readily be restored
to health, many persons came to be regarded by their friends and by
a rightful public feeling as insane, who previously would have been
treated as sane. The definition of insanity, in the philanthropic
mind, at least, was so enlarged as to include all persons who, while
not being clearly maniacs, were yet subject to mental or moral anom-
alies which a wise medical treatment could remove.

But this was not the only circumstance that tended to an expansion
of the definition. Another influence, still more marked, had already
prepared the public mind to treat as insanity much that was really
only folly or guilty impulse. Between 1760 and 1764, Eousseau
published his Contrat Social and Emile, works which, in the senti-
mental humanitarianism they inculcated, were the natural extreme
reaction from the inhumanity of the prior absolutist regime. Rous-
seau flamed with a romantic admiration not merely for the liberty to
do right, but for the liberty to do MTong. Even the grossest natural
instincts were of divine origin, and should be nursed with delicate
respect. Crime was something to which a man was impelled by his
nature; else, why should he indulge in crime? Heretofore all in-



PKEFACE TO THE THIRD EDITION. v

sanity was crime. Now all crime was to be insanity. Sin was not to
be viewed as horrible and odioiLS, but as something abnormal, indeed,
but provocative of curious regard and sympathy. And criminals
were an interesting class of lunatics, who were especially consecrated
to the restorative care of the state.

Pinel, like most other French philosophers of his day, was not slow,
when responding to this reaction, to welcome a plan which proposed
to extirpate crime and inaugurate liberty by placing crime distinc-
tively under humane medical care. Undoubtedly there was much in
his special experience to strengthen him in this view. He had seen
many insane persons treated as criminals. It was natural to him to
assume the converse, and to hold that there are many criminals who
are to be treated as insane. In sustaining this view he cautiously,
though distinctly, set forth the proposition, hereafter fully discussed, *
that there is a distinct form of madness in which the reason remains
unimpaired. It is true, when he came to illustrate this by examples,
it was found that the "reasoning maniacs" whom he described were
more or less maniacs even in their reason. But, nevertheless, the
proposition fitted symmetrically into the philosophy of the French
Kevolution, and was accepted by the apostles of that revolution
wherever they taught.

Fifty years afterwards, in times greatly changed, another influence
arose to give fresh impetus to the same peculiar theory. The French
Revolution was over, and with it had vanished those ideas of senti-
mental humanitarianism which had lent it so much fascination. It is
true that the evaporating process was not without a sensible deposit
of good. Insanity, for instance, was no longer associated with crime ;
and the speculations of Pinel, reproduced in a modified shape by his
scholar, Esquirol, were, when accepted by French legislation, inter-
preted to mean nothing more than that crime is often a. consequence
of insanity, and, when so, is irresponsible. In 1Y98, however. Gall
startled the scientific world by his alleged discovery of phrenology.
His genius, eminently enterprising and constructive, but shut out by
the then state of Europe from political adventure, betook itself to
adventure in science. Arrested, as he tells us, by the fact that those
of his school companions who had good verbal memories had bulging
eyes, he gradually developed the theoiy that each function and pro-
pensity had a separate local habitation in the brain; and that the
power of the fxmction or propensity varied with the size of its cerebral
apartment, as measured on the outside. As, however, each function

Unfra, § 531 (3d ed.).



▼i PREFACE TO THE THIRD EDITION.

and each propensity dwelt alone in its particular cell, each waa
capable of independent action, and, of course, as each could be inde-
pendently strong or weak, each could be privately insane. This sever
ance of functions and propensities was the distinguishing feature of
Gall's system; and, to establish it psychologically, he devoted the
energies of a mind which, while disdaining logical restraint, and rash
in leaping at results, was peculiarly quick, curious, and specious. A
peripatetic from necessity, for the German reactionary governments,
doubtfid of the uses to which his philosophy might be put, forced
him into a series of exiles, he collected, wherever he went, from news-
papers, from sympathetic disciples, from eveiy quarter, in fact,
except the official reports of experts and of courts, every anecdote
by which his theory could be helped. Such was the piquant plausi-
bility of his publications that they not only attracted interest, but
enlisted enthusiasm. Nothing, indeed, could be more racy than his
details. A distinguished prince, remarkable for his sagacity and cool
sense, was possessed, it was declared, by an irresistible propensity to
steal. A young girl, of singular amiability and excellent reasoning
powers, was in the habit of setting fire to houses. A philanthropist,
blandly sane in all other respects, met with some injury to the cell
that restrained the function of destructiveness, and forthmth betook
him to killing his neighbors. ISTo doubt there was a basis of reality
in most of Gall's cases. The difficulty w^as that he did not sufficiently
investigate the facts. For all he knew, and for all he inquired, the
prince and the girl and the philanthropist might have been the
descendants of insane parents, — might have been epileptics, — might
have betrayed in their families unmistakable symptoms of mental
derangement, — might subsequently have died in a madhouse. ITor
were his cases cited in such a way as to enable subsequent investi-
gators to inquire into their accuracy. I^o one could tell whence most
of them came. Yet so engaging was the style in which they were
narrated, and so great Avas the confidence felt in Gall as a narrator,
that they were readily accepted by those whose theories they sub-
.served. The psychological conclusion was inevitable. If criminal
instincts have separate apartments in the brain, then those criminal
instincts can be separately insane. Hence, the doctrine of mono-
mania, sustained at once by Gall's facts and by his hypothesis, began,
under the impulse thus imparted, once more to challenge judicial
assent.

On our distinctive jurisprudence, the causes just mentioned would
have had little influence had it not been for the indirect bearings of



PREFACE TO THE THIRD EDITION. vii

another condition. Nothing conld have been more barbarous than the
old English adjustment of penalty to crime. A man who stole a fowl
was capitally punished ; and, even after a century of legal reform, the
law in England still is that a man who kills another when designing
to hurt, but not to kill, is amenable to as high a sentence as he who
deliberately assassinates. But humane observers revolted from this
subjecting crimes so entirely distinct to the same penalty, and they
cast about for some method of relief. In the United States a remedy
was seized which was, in a lai'ge measure, efficacious. Murder was
tlivided into two degrees, and capital punishment was reserved
exclusively for cases in which tliere was proved a premeditated inten-
tion to take life. On this has been not unfrequently grafted the
humane construction that where, from mental or nervous excitement,
the defendant is incapable of forming a specific intent, then the
capital offense is not proven.^ But in England, these mitigating'
qualifications were not accepted ; and though in the United States the
division of murder into two degrees was, at an early period, estab-
lished almost universally, the courts were at first slow to recognize
the fact that a mind disturbed by nervous excitement and blurred by
insane predispositions may be incapable of intellectual premeditation,
while, at the same time, capable and responsible for passionate crime.
Hence, it has been that the jury has been too often narrowed to a
choice between conviction of a capital offense and acquittal ; and
hence, to justify an acquittal, insanity has sometimes been used as a
pretext, when insanity, iji the correct sense of the term, did not exist.

This unscientific extension of insanity received a quasi scientific
sanction under the following circumstances. By the Anglo- American
practice, a party is entitled to call on trial any expert he may select ;
and he is not likely to select any whose views will not promote his
cause. It so happens that among the present large body of experts
there is little trouble in discovering one or more by whom is main-
tained the particular psychological theory of which the party on trial
stands in need. It is an old truth that there is nothing so absurd
but that some philosopher may be found by whom it is affirmed.
"Nihil tarn ahsurde did potest quod non dicatur ah aliquo philoso-
pliorum."^ To sustain a particular defense, for instance, it is neces-
sary to prove that the "morals" may be insane while the mind is sane.
The defendant's counsel forthwith proceed to search among the multi-
tudes who have written on insanity, or have been in any way conver-
sant with the insane, for a philosopher by whom this unique hypothe-

"See infra, § 200 (3d ed.). 'Cicero, de Divinatione, II. 58.



viii PEEFACE TO TliE THIRD EDITION.

sis is held. When the case is tried, this philosopher is produced and
swears promptly and positively to his belief. On the strict principles
of law, he cannot be cross-examined as to the opinions of others, for
this would be hearsay. So far, therefore, as the particular case is
concerned, he stands before the jury as if he was the collected sense
of the psychological experts of the whole world. It may be that the
prosecution may be able to cancel his testimony by the production of
a preponderating weight of experts on the other side. But to do so
requires energy, skill, and means; and too often has the duty been
neglected, and the case left to rest, in criminal trials, on the testimony
of the exceptional experts selected by the defense. Hence it is that
juries, if not courts, have occasionally succumbed to such testimony
in respectful amazement, feeling, indeed, that it is wrong, but not
seeing how it could be disregarded.

As influences disturbing the juridical conception of insanity, — ^to
recapitulate those which we have just been enumerating in detail, —
we may, therefore, mention (1) the romanticism of the French
psychological followers of Rousseau, afterwards aided by phrenology,
which refined crime into insanity; (2) reaction from the old English
barbarism which punished insanity as if it were crime; and (3) the
hesitation felt by the courts in grappling with the philosophy of a
question w^hich had been claimed to be purely medical. Under these
circumstances arose that confusion of law which was noticed in the
prior editions of this treatise.

Since 1860, when the second edition was issued, a great change has
taken place. Before that period, we may say generally, there had
been no positive and final repudiation by psychological science of the
theory of criminal monomanias. Since then medical as well as
psychological science has rallied, and from all quarters there has
risen, as will be hereafter shown more fully, almost an unbroken
denunciation of a scheme of psychological romanticism which sober-
minded men have learned to feel is as repugnant to science as it is
hostile to society.* And this advance of science towards a common
reconciliatory standpoint is now met by a corresponding advance of
law. It has been just stated that one of the causes of early juridical
confusion on this topic was the revulsion from the excessive punish-
ments assigned by the old law to offenses of even lighter grade.
Civilization was shocked at seeing a man who, from nervous or mental
or physical disorder, was incapable of cool premeditation or exact
intent, hurried to the gallows for what might be a comparatively

*See infra, §§ 552-643 (3d ed.).



PREFACE TO THE THIRD EDITION. <x

renial crime ; and it was to the desire to save such that the toleration
of the idea of irresponsibility in such cases is, in a large measure,
traceable. But it was soon found that this enlargement of irrespon-
sibility worked badly. It exposed many persons, virtually sane, to
the pains and penalties of insanity. It enfranchised a dangerous
class of outlaws, too insane to be punished for crime, and yet too
sane to be restrained. It involved, on the part of the state, the abdica-
tion of one of its chiefest functions, — the building up of a right
moral sense in those of its subjects in whom such moral sense is
deficient.

But is so violent a remedy necessary ? Is there no alternative
between an unjust conviction of a man of an offense to whose grade
of guilt he does not quite reach, and his equally unjust acquittal in
the face of evidence showing his guilt of an intermediate grade ? It
has already been seen that in the United States, at an early day, a
statutory approach was made to this result by the beneficent enact-
ments dividing murder into two degrees. But this, by itself, is not
enough. A court may say to a jury, "Here is evidence of premedita-
tion ; you must here find either murder in the first degree, or acquit."
Eminent jurists, in order to meet this difficulty, have authoritatively
advanced positions which have just been incidentally noticed, and will
now be stated more fully.

The idea of diminished responsibility in cases of abnormal excite-
ment is already familiar to the law. Homicide in hot blood is not
murder, but manslaughter ; yet, what is rage but a short frenzy ? and
how difficult is it to distinguish such frenzy from the mania transi-
toria of the alienists ? A drunken man engages in a brawl, and shoots
an innocent stranger ; and here, as his mind was so stupefied by drink
that he was incapable of a specific intent to take life, the offense is
reduced to murder in the second degree. Or he receives and passes a
counterfeit note when in the same condition, and here his drunken-
ness is admissible to show that he did not know the note was counter-
feit. Or a series of men, sw^ept away by religious or political excite-
ment, fall into such a highly charged and abnormal state of mind
that they are incapable of accurate perception, and here, then, homi-
cide committed w^hen in such a state is held to be reduced to murder
in the second degree.^

How are these last states distinguishable from other well-known
exciting influences ? What is there that mitigates guilt in cases where

•See infra, § 181 (3d ed.).



X PREFACE TO THE THIRD EDlTlOxS.

the patient is advanced one degree in the insane scale, but wiU not

mitigate it Avhen he is advanced two degTees?

By the Austrian and Bavarian codes this question has been recently
answered by the recog-nition of degrees in penal responsibility.
Diminished responsibility {verminderte Zurechnungsfdhigkeit) is
distinctively and authoritatively defined as a condition in which the
mind is incapable of calm and exact premeditation or conception, and
to this condition a lesser gi-ade of punishment is assigned. And the
same principle is adopted juridically by the ]S[orth Gennan courts.
In Englana there is no statutory adoption, so far as concerns insanity,
of such diminished responsibility, nor have the courts as yet pro-
ceeded so far as to look upon nervous or mental disease as lowering
the grade of guilt, emphatic as they are in recognizing the entire sus-
pension of responsibility when insanity destroys the capacity of dis-
tinguishing between right and wrong. But the reform which the
courts, in their distinctively judicial capacity, have felt unable to
effect, has been brought about by the joint action of judiciary and
executive. Thus, in two remarkable cases of homicide, those of
Watson and Edmunds, hereafter fully noticed,^ the defense being-
insanity, but the proof amounting merely to insane predisposition, or,
at the highest, to a light and incipient stage of insanity, while the
jury were directed to convict, yet, after conviction of the capital
crime, on application to the Crown, in which the judges joined,
capital punishment was commuted to imprisonment for life.

In the United States, in construing the statutes already noticed as
establishing degrees in homicide, the courts^ have uniformly held, as
has been already noticed, that when, through drunkenness, the defend-
ant was incapable of premeditation or of specific intent, then only
the second degree of murder is reached. The same relaxation has
been applied, not only in the United States, but in England, to cases
of larceny and other fraudulent crimes when the party's mental condi-
tion was such, through drunkenness, that he was incapable of guilty
knowledge or intent. And in Pennsylvania, in a series of cases of
riotous homicide committed by parties in a high state of political and
religious excitement, the courts humanely and wisely accepted the
principle already stated, that there may be a fury and distraction of
mind in which the capacity to comprehend, to compare, to weigh, and
to premeditate may be temporarily so far depressed or disturbed as to
bring the offense within the definition of murder in the second, as
distinguished from that of murder in the first, degree.®

•See infra, §§ 166-173 (3d ed.). » See infra, §§ 214-227 (3d ed.).

•See infra, §§ 181, 200 (3d ed.).



PREFACE TO THE THIRD EDITION. xi

From the scope of the reasoning which has led to such results, it
is impossible to mthdraw cases of mental excitement and disturb-
ance, which, though not amounting to such mature insanity as to
utterly suspend responsibility, yet prevent the patient from forming
calm, premeditated, and specific criminal designs. Slow as have the
courts been in reaching this conclusion, we may now regard it as
gradually winning judicial acceptance;^ and, if so, we may view the
law as having received an expansion philosophically consistent with
its own principles, and bringing it in full accord with the mature
and humane renditions of science. Heretofore "moral insanity" and
"insane monomania" have owed the little practical favor they have
wrung from courts and juries to the fact that there were cases in
which their recognition seemed to be the only way of escaping a
verdict which would involve the penalty of death. The consequence
was that the public was outraged, sometimes by the acquittal, on the
ground of insanity, of men who, in no other relation, would be viewed
as insane, and sometimes by the conviction and execution of men
who, though not fully insane, would, in no relation, be regarded as



Online LibraryFrancis WhartonWharton and Stillé's medical jurisprudence .. (Volume 1) → online text (page 1 of 147)