Popular Science Monthly/Volume 5/May 1874/Law and Insanity
LOOKING back at the strange and erroneous notions which were formerly entertained of the nature and causes of insanity, and considering what little observation was made of its manifold varieties, we cannot wonder that its jurisprudence was in a very defective state. At first two kinds of insanity only seem to have been recognized by English law—idiocy and lunacy: the idiot who, from his nativity, by a perpetual infirmity is non compos, and the lunatic, who hath some-times his understanding, and sometimes not, aliquando gaudet lucidis intervallis, and therefore is non compos mentis, so long as he hath not understanding. But as time went on a partial insanity was recognized as distinct from total insanity, although this partial insanity was declared not to absolve a person from responsibility for his criminal acts. "There is," says Lord Hale, "a partial insanity, and a total insanity. The former is either in respect to things, quoad hoc vel illud insanire. Some persons that have a competent use of reason in respect of some subjects, are yet under a particular dementia in respect of some particular discourses, subjects, or applications; or else it is partial in respect of degrees; and this is the condition of very many, especially melancholy persons, who for the most part discover their defect in excessive fears and griefs, and yet are not wholly destitute of the use of reason; and this partial insanity seems not to excuse them in the committing of any offense for its matter capital; for, doubtless, most persons that are felons of themselves and others are under a degree of partial insanity when they commit these offenses. It is very difficult to define the invisible line that divides perfect and partial insanity; but it must rest upon circumstances duly to be weighed by judge and jury, lest, on the one side, there be a kind of inhumanity toward the defects of human nature; or, on the other side, too great an indulgence given to great crimes." The invisible line which it was so difficult to define was not, let it be noted, between sanity and insanity, but between perfect and partial insanity. It was thought no inhumanity toward the defects of human nature to punish as a fully responsible agent a person who was suffering from partial insanity, whatever influence the disease might have had upon his unlawful act.
The principle thus laid down by Lord Hale was subsequently acted upon in English courts. Thus, in the trial of Arnold, an undoubted lunatic, for shooting at Lord Onslow, in 1723, Mr. Justice Tracy said: "It is not every kind of frantic humor, or something unaccountable in a man's actions, that points him out to be such a madman as is exempted from punishment: it must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute or a wild beast; such a one is never the object of punishment." In this respect a wide distinction was maintained between civil and criminal cases; for while the law would not allow exemption from punishment for criminal acts unless the reason was entirely gone, it invalidated a person's civil acts, and deprived him of the management of himself and his affairs, when his insanity was only partial, and when the act voided had no discoverable relation to it. A man's intellect might not be sufficient to enable him to conduct his affairs, and to dispose of his property, though quite sufficient to make him responsible for a criminal act: it was right to hang for murder one who was not thought fit to take care of himself and his affairs.
It was at the trial of Hadfield, in 1800, for shooting at the king in Drury Lane Theatre, that Lord Hale's doctrine was first discredited, and a step forward made for the time. The attorney-general, who prosecuted, had appealed to this doctrine, and told the jury, in accordance with it, that, to exempt a person from punishment on the ground of insanity, there must be a total deprivation of memory and understanding. Mr. Erskine, who was counsel for the defense, argued forcibly in reply, that if such words were taken in their literal sense, "no such madness ever existed in the world;" that in all the cases that had filled Westminster Hall with complicated considerations, "the insane persons had not only had the most perfect knowledge and recollection of all the relations they stood in toward others, and of the acts and circumstances of their lives, but had in general been remarkable for subtlety and acuteness; and that delusion, of which the criminal act in question was the immediate unqualified offspring, was the kind of insanity which should rightly exempt from punishment. Delusion, therefore, where there is no frenzy or raving madness, is the true character of insanity." There was no doubt that Hadfield knew right from wrong, and that he was conscious of the nature of the act before he committed it; he manifested design in planning and cunning in executing it; he expected also that it would subject him to punishment, for this was his motive in committing it; still it was plain to everybody that he was mad, and that the act was the product of his madness. The result was that he was acquitted, the acquittal not having taken place in consequence of a judicial adoption of delusion in place of the old criterion of responsibility, as it has sometimes been said, but having been rather a triumph of Erskine's eloquence, and of common-sense over legal dogma.
In the next remarkable case, that of Bellingham, who was tried for the murder of Mr. Spencer Perceval, in 1812, a conviction took place, and the prisoner was executed, although it was perfectly clear that he had acted under the influence of insane delusions; the attorney-general, who prosecuted, declaring, and Chief-Justice Mansfield, who tried the case, concurring, "upon the authority of the first sages in the country, and upon the authority of the established law in all times, which has never been questioned, that although a man might be incapable of conducting his own affairs, he may still be answerable for his criminal acts, if he possess a mind capable of distinguishing right from wrong." Note here, then, that a modification had now been made in the test of responsibility; in place of its being required that the sufferer, in order to be exempt from punishment, should be totally deprived of understanding and memory, and know not what he was doing, no more than a brute or a wild beast—in place, that is, of what might be called the "wild-beast" form of the knowledge-test, the power of distinguishing right from wrong was insisted on as the test of responsibility. The law had changed considerably without ever acknowledging that it had changed. Let it be observed, however, that it was the power of distinguishing right from wrong, not in relation to the particular act, but generally, which was made the criterion of responsibility in this case; for Lord Mansfield, speaking of the kind of insanity in which the patient has the delusion of being injured, and revenges himself by some hostile act, said that, "if such a person were capable, in other respects, of distinguishing right from wrong, there was no excuse for any act of atrocity which he might commit under this description of derangement. It must be proved beyond all doubt that, at the time he committed the atrocious act, he did not consider that murder was a crime against the laws of God and Nature."
Thus far it is evident that principle was changing and practice was uncertain. After the old "wild-beast" form of the knowledge-test had been quietly abandoned, when the enunciation of it caused too violent a shock to the moral sense of mankind, we find two theories acted upon in practice: in the case of Hadfield the existence of delusion instigating the criminal act was the reason of his acquittal; in Bellingham's case, an absence of knowledge of right and wrong generally, not in respect of the particular act, was deemed necessary to exempt the individual from punishment; the latter theory being entirely inconsistent with the former, and neither of them being consistently acted upon in subsequent trials. Most often a knowledge of right and wrongs without reference to the particular act, was plainly declared by the judge to be the simple and sufficient criterion of responsibility, and the jury was instructed accordingly; but this criterion was sometimes modified by the qualifications which judges introduced to meet their individual views, or to prevent the conviction of a person who was plainly insane and irresponsible. There was no settled principle, no actual uniformity of practice, no certainty of result.
In this uncertain way matters went on until a great sensation was made by the murder, in 1843, of Mr. Drummond by McNaughten, who shot him under the influence of a delusion that he was one of a number of persons whom he believed to be following him everywhere, blasting his character and making his life wretched. McNaughten had transacted business a short time before the deed, and had shown no obvious symptoms of insanity in his ordinary discourse and conduct. He was, however, acquitted on the ground of insanity. Thereupon the House of Lords, participating in the public alarm and indignation which were occasioned by the acquittal, propounded to the judges certain questions with regard to the law on the subject of insanity when it was alleged as a defense in criminal actions; the object being to obtain from them an authoritative exposition of the law for the future guidance of courts. The answers of the judges to the questions thus put to them constitute the law of England as it has been applied since to the defense of insanity in criminal trials.
It is not necessary to quote the questions and answers at length; the latter are somewhat confused, and the substance of them may be correctly given in fewer words. "To establish a defense on the ground of insanity, it must be clearly proved 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." It will not escape attention that the question of right and wrong in the abstract was here abandoned, being allowed quietly to go the way of the wild-beast form of the knowledge-test; the question of right and wrong was to be put in reference to the
particlular act with which the accused was charged. Moreover, it was to be put in reference to the particular act at the time of committing it. Did he at the time know the nature and quality of the act he was doing? These two points have been overlooked sometimes by hostile critics, who have condemned the rule enunciated, as though it referred to a knowledge of right and wrong generally. One may object to the rule as a bad one, and because it is calculated to mislead a jury, who are very likely to be misled by the existence of a general knowledge of right and wrong in the accused person to judge wrongly concerning his knowledge of the particular act at the time, but it must be allowed at the same time that it will, if strictly applied, cover and excuse many acts of insane violence. Of few insane persons who do violence can it be truly said that they have a full knowledge of the nature and quality of their acts at the time they are doing them. Can it be truly said of any person who acts under the influence of great passion that he has such a knowledge at the time?
The rule thus laid down, differing so much from that which was enunciated and mercilessly acted upon in Bellingham's sad case, was, however, limited in its application by a formidable exception. In reply to the question—"If a person, under an insane delusion as to existing facts, commits an offense in consequence thereof, is he thereby excused?"—the judges declared that "on the assumption that he labors under partial delusion only (whatever that may mean), and is not in other respects insane, 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 delusion, he supposes another man to be in the act of attempting to take his life, and he kills that man, as he supposes, in self-defense, 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." Here is an unhesitating assumption that a man, having an insane delusion, has the power to think and act in regard to it reasonably; that, at the time of the offense, he ought to have and to exercise the knowledge and self-control which a sane man would have and exercise, were the facts with respect to which the delusion exists real; that he is, in fact, bound to be reasonable in his unreason, sane in his insanity. The judges thus actually bar the application of the right-and-wrong criterion of responsibility to a particular case, by authoritatively prejudging it; instead of leaving the question to the jury, they determine it beforehand by assuming the possession of the requisite knowledge by the accused person. One of them, however, Mr. Justice Maule, so far dissented as to maintain that the general test of capacity to know right from wrong in the abstract ought to be applied to this case as to other cases.
But this is not all the uncertainty which appears in these answers. In another part of them it is said, in reference to the same supposed case, that "notwithstanding the party accused did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable, if he knew at the time of committing such crime that he was acting contrary to the law, by which is meant the law of the land." This answer really conflicts with a former answer; it is obvious that the knowledge of right and wrong is different from the knowledge of an act being contrary to the law of the land; and it is certain that an insane person may do an act which he knows to be contrary to law, because, by reason of his insanity, he believes it to be right, because, under the influence of insane delusion, he is a law unto himself, and deems it a duty to do it, perhaps "with a view of producing some public benefit."
The uprightness of English judges has happily been seldom called in question, but it may well be doubted whether the result of their solemn deliberations, as embodied in their answers to the questions put to them by the House of Lords, will commend their wisdom to the approbation of foreign nations and future ages. If it be true, as is sometimes said, that the verdict of foreign nations is an anticipation of the verdict of posterity, there are already sufficiently strong indications that their conclusions will be no honor to them in times to come. That they are unanimously condemned by all physicians who have a practical knowledge of the insane, may not affect the confidence of those who accept them, seeing that judges and physicians take such different stand-points; but when the judges of other countries condemn them with equal earnestness, it is impossible for the most confident to help feeling some hesitation. In the case of State v. Jones, tried in the court of New Hampshire, America, Judge Ladd, after passing in review the answers of the English judges, thus speaks of the doctrine embodied in them:
Since the answers of the judges were made to the House of Lords, the law as relating to insanity in a criminal trial has been laid down in conformity with their conclusions: if the accused person at the time of committing the offense knew right from wrong, and that he was doing wrong, he must be brought in guilty, whether insane or not. If insane, he is not necessarily exempted from the punishment of his crime; the question is, whether he was at the time capable of committing a crime; and that must be determined by evidence of the absence, not of insanity, but of a knowledge of right and wrong. Was his insanity of such a kind as to render him irresponsible by destroying his knowledge of right and wrong? Nevertheless, juries often, and judges occasionally, out of a natural humanity repudiate this dogma in particular cases, and, so far from any certainty of result having been secured by its application, it is notorious that the acquittal or conviction of a prisoner, when insanity is alleged, is a matter of chance. Were the issue to be decided by tossing up a shilling, instead of by the grave procedure of a trial in court, it could hardly be more uncertain. The less insane person sometimes escapes, while the more insane person is sometimes hanged; one man laboring under a particular form of derangement is acquitted at one trial, while another having an exactly similar form of derangement is convicted at another trial. No one will be found to uphold this state of things as satisfactory, although there is great difference of opinion as to the cause of the uncertainty; the lawyers asserting that it is owing to the fanciful theories of medical men who never fail to find insanity where they earnestly look for it, the latter protesting that it is owing to the unjust and absurd criterion of responsibility which is sanctioned by the law. Meanwhile, it is plain that, under the present system, the judge does actually withdraw from the consideration of the jury some of the essential facts, by laying down authoritatively a rule of law which prejudges them; the medical men testify to facts of their observation in a matter in which they alone have adequate opportunities of observation; the judge, instead of submitting these facts to the jury for them to come to a verdict upon, repudiates them by the authority of a so-called rule of law, which is not rightly law, but is really false inference founded on insufficient observation.
In America it would seem that matters have been little better than they are in this country, the practice of the courts, like that of the British courts, having been diverse and fluctuating. In many instances juries have been instructed, in accordance with English legal authorities, that, if the prisoner, at the time of committing the act, knew the nature and quality of it, and that in doing it he was doing wrong, he must be held responsible, notwithstanding that on some subjects he may have been insane; that, in order to exempt a person from punishment, insanity must be so great in extent or degree as to destroy his capacity of distinguishing between right and wrong in regard to the particular act. But in other instances the instructions of the judges have been different. In the case of State v. Wier, Grafton, 60, 1864, Chief-Justice Bell charged the jury thus:
In the case of Stevens v. The State of Indiana, the instruction to the jury, that, if they believed the defendant knew the difference between right and wrong in respect to the act in question, if he was conscious that such act was one which he ought not to do, he was responsible—was held to be erroneous.
It would appear, then, that the American courts, which, having inherited the common law of England, at first followed docilely in the wake of the English courts, are now exhibiting a disposition to emancipate themselves from an authority which they perceive to be founded on defective and erroneous views of insanity, and a desire to bring the law more into accordance with the results of scientific observation. The decisions of the court of New Hampshire in Boardman v. Woodman, State v. Jones, and State v. Pike, are especially worthy of attention for their searching discussion of the relations of insanity to jurisprudence, and for the decisive abandonment of the right-and-wrong test of responsibility. In the case of State v. Pike, Chief-Justice Perley instructed the jury that they should return a verdict of not guilty "if the killing was the offspring of mental disease in the defendant; that neither delusion nor knowledge of right and wrong, nor design or cunning in planning and executing the killing, and in escaping or avoiding detection, nor ability to recognize acquaintance, or to labor or transact business or manage affairs, is, as a matter of law. a test of mental disease; but that all symptoms and all tests of mental disease are purely matters of fact to be determined by the jury."
These American decisions are certainly an advance on any judgment concerning insanity which has been given in this country; they put in a proper light the relations of medical observation and law in questions of mental disease; and it cannot be doubted that future progress will be along the path which they have marked out. The question which will probably be submitted to the jury will be substantially, Was the act the offspring or product of mental disease?—and it will be seen that to lay down any so-called test of responsibility, founded on a supposed knowledge of right and wrong, is, as Judge Ladd remarked in State v. Jones, "an interference with the province of the jury, and the enunciation of a proposition which, in its essence, is not law, and which could not in any view safely be given to the jury as a rule for their guidance, because, for aught we can know, it may be false in fact." Seeing, then, that, by the unanimous testimony of medical men of all countries who have been practically acquainted with insanity, it is declared positively that such a proposition is false in fact, it is clear that the law, in enunciating it, is not only overstepping its rightful function, but actually perpetrating an injustice. It is simply doing in regard to insanity what it did formerly in regard to witchcraft—giving erroneous opinions on matters of fact to the jury under the name of law, and with all the weight of judicial authority. In one of the latest trials for witchcraft in this country, Lord Hale, whose crude dicta concerning insanity were so long acted upon in our courts of justice, instructed the jury: "That there are such creatures as witches he made no doubt at all. For, first, the Scriptures had affirmed so much. Secondly, the wisdom of all nations had provided laws against such persons, which is an argument of their confidence of such a crime." The jury accordingly found a verdict of guilty; the judge, satisfied with it, condemned the prisoners to death, and they were executed. It is one of the last executions for witchcraft in this country, for it occurred at a time—and this should never be forgotten—when the belief in witchcraft was condemned by the enlightened opinion of the country. As it was then with witchcraft, so it is now with insanity: the judge instructs the jury wrongly on matters of fact; they find accordingly a verdict of guilty; he is satisfied with the verdict, and an insane person is executed.
The falseness of the legal position will appear at once if we suppose a case of poisoning instead of a case of mental derangement: what would be thought of a judge who, when medical evidence of poisoning was given, should instruct the jury, as a principle of law, that they must be governed in their verdict by the presence or absence of a particular symptom? "If the tests of insanity are matters of law, the practice of allowing experts to testify what they are should be discontinued; if they are matters of fact, the judge should no longer testify without being sworn as a witness, and showing himself qualified to testify as an expert." But, in truth, the tests of insanity are no more matters of law than are the tests of a poison or the symptoms of disease. "If a jury were instructed that certain manifestations were symptoms or tests of consumption, cholera, congestion, or poison, a verdict rendered in accordance with such instructions would be set aside, not because they were not correct, but because the question of their correctness was one of fact to be determined by the jury upon evidence."
Other nations have not bound themselves by so narrow and ill-founded a criterion of responsibility in insanity; they have refrained from the attempt to define exactly the conditions of responsibility. In France the article of the penal code is: "There can be no crime nor offense if the accused was in a state of madness at the time of the act." And the revised statutes of the State of New York enact that "no act done by a person in a state of insanity can be punished as an offense." These general enactments, while wisely leaving each case to be decided on its merits, may clearly be construed, if they were not intended, to exempt from punishment the individual who, being partially insane, nevertheless commits a crime which is no way connected with his insanity; who, in fact, so far as can be judged, does it in the same way and from exactly the same motive as a sane person. For an insane person is not exempt from the ordinary evil passions of human nature; he may do an act out of jealousy, avarice, or revenge: is it right, then, when, so far as appears, the passion is not connected with his diseased ideas or feelings, and he acts with criminal intent, that he should escape punishment for what he has done? This is really the important question which must continue to puzzle courts of justice when a particular criterion of responsibility is no longer laid down; for if it be admitted that an insane person who apparently does a criminal act sanely ought not to escape punishment, the difficulty of deciding whether his disease did or did not affect the act will remain. There will always be room enough for doubts and differences of opinion.
The section of the latest German penal code is: "An act is not punishable when the person at the time of doing it was in a state of unconsciousness or of disease of mind, by which a free determination of the will was excluded." Not every disorder of mind is exempt; only such actual disease as excludes a free determination of the will. The problem, then, is, to determine, first, what conditions of derangement of the mental faculties are to be considered as the result of disease; and, secondly, whether and how far free-will is excluded by them. In the case of a partially insane person acting to all appearances from an ordinary criminal motive, the act must be weighed in relation to these two questions; and, if they are answered in the negative, he would clearly be amenable to punishment.
It is abundantly evident from this short review of the codes of other countries that nothing can be said in justification of the superstitious reverence with which English lawyers cling to their criterion of responsibility. It is hard to see why they should suffer a greater pang in giving up this formula than they did in giving up other formulas which, having had their day and done much evil work, were abandoned. The "wild-beast theory," once so sacred, has been relegated to the record of human mistakes; the theory of a knowledge of right and wrong in the abstract which followed it was, in like manner, repudiated as men became better acquainted with the phenomena of mental derangement; surely, then, the metaphysical theory of a knowledge of right and wrong in relation to the particular offense, which finds little or no favor out of England, and which is condemned unanimously by all persons, in all countries, who have made insanity their study, may be suffered to join its predecessors, without danger of injury to what all those who approve and those who disapprove it desire the strict administration of justice. Physicians have no right—to interfere in the administration of the law, which is the judge's function, nor is it their duty to decide upon what is necessary to the welfare of the state, that being the legislator's work; their concern is with the individual, not with the citizen. But they plainly have the right to declare that the nature of a crime involves two elements: first, the knowledge of its being an act contrary to law; and, secondly, the will to do or to forbear doing it, and to point out that there are some insane persons who, having the former, are deprived by their disease of the latter; who may know an act to be unlawful but may be impelled to do it by a conviction or an impulse which they have not the will or the power to resist. Recognizing the obvious difference between him who will not and him who cannot fulfill the claims of the law, it is their function to point out the conditions of disease which constitute incapacity, and, when they find a false fact solemnly enunciated as a rule of law, to bring forward into all the prominence they can the contradictory instances which their observation makes known to them. "That cannot be a fact in law which is not a fact in science; that cannot be health in law which is disease in fact. And it is unfortunate that courts should maintain a contest with science and the laws of Nature upon a question of fact which is within the province of science and outside the domain of law."
- From advance sheets of "Responsibility in Mental Disease," No. 9 of the "International Scientific Series."
- Dr. Ray thus comments upon this doctrine: "That the insane mind is not entirely deprived of this power of moral discernment, but on many subjects is perfectly rational and displays the exercise of a sound and well-balanced mind, is one of those facts now so well established, that to question it would only display the height of ignorance and presumption. The first result, therefore, to which the doctrine leads is, that no man can successfully plead insanity in defense of crime; because it can be said of no one who would have occasion for such a defense, that he was unable in any case to distinguish right from wrong.... The purest minds cannot express greater horror and loathing of various crimes than madmen often do, and from precisely the same causes. Their abstract conceptions of crime, not being perverted by the influence of disease, present its hideous outlines as they ever were in the healthiest condition; and the disapprobation they express at the sight arises from sincere and honest convictions. The particular criminal act, however, becomes divorced in their minds from its relations to crime in the abstract; and, being regarded only in connection with some favorite object which it may help to obtain, and which they see no reason to refrain from pursuing, is viewed, in fact, as of a highly-laudable and meritorious nature. Herein, then, consists their insanity—not in preferring vice to virtue, in applauding crime and deriding justice, but in being unable to discern the essential identity of nature between a particular crime and all other crimes, whereby they are led to approve what, in general terms, they have already condemned. It is a fact, not calculated to increase our faith in the 'march of intellect,' that the very trait peculiarly characteristic of insanity has been seized upon as a conclusive proof of sanity in doubtful cases; and thus the infirmity that entitles one to protection, is tortured into a good and sufficient reason for completing his ruin."—("A Treatise on the Medical Jurisprudence of Insanity," fifth edition, pp. 26-28.)
- State v. Jones, p. 888.
- Quoted in the Report of State v. Jones, pp. 376, 377.
- Judge Doe, State v. Pike.
- Boardman v. Woodman.
- Judge Doe, Boardman v. Woodman. "If it is necessary that the law should entertain a single medical opinion concerning a single disease, it is not necessary that that opinion should be a cast-off theory of physicians of a former generation."–– (P. 150.)