THE

JOURNAL OF JURISPRUDENCE.

INSANITY AS A LEGAL PLEA.

THE plea of insanity is one of the most difficult to deal with in our Courts of Justice. It is often decided after a very rough and summary fashion, and according to the particular whims or crotchets of the jury, or prevailing feeling of the public at the time. If, in a very gross case, a jury acquit a prisoner on this ground, the press immediately teems with abuse of the mawkish and foolish men who did it; and immediately the current turns against the plea, and the next lunatic is convicted and hanged. If, on the other hand, they find a person guilty when there were serious doubts, it immediately runs in an opposite direction,-more especially if the culprit were a woman, and pretty.

To state what insanity is to draw the exact line of demarcation between acts done under the influence of this disease, and those which may be held the deeds of a sane mind, has baffled the skill of the wisest and most learned of medical jurists, and this will ever be the case until the nature of insanity be better understood. So unsettled are the opinions on this subject, that in many of the trials of late years, eminent physicians were adduced on opposite sides, and, to the discredit of their science, pronounced opinions so flatly contradictory of each other, that the bystanders could give credit to none of them. "Such is the prevailing ignorance on these topics," says a late writer, "that although character, fame, fortune, liberty, peace of mind, and almost every other motive by which man can be influenced, may be involved in the decision, there is scarcely any department of medical science in which greater confusion or variety of opinion prevails."- (Combe on Insanity, p. 214.)

Among our older lawyers, metaphysicians, and physiologists, the idea of insanity was this. They held that it was an overthrow of the immaterial principle or soul, unsusceptible of any other cure than by moral treatment; and that in such cases the physical laws regulating the animal economy of man had no place (Craig, 2, 18,

VOL. III.-NO. XXXV. NOVEMBER 1859

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29; Ersk. 1, 7, 48). Erskine's description of insanity may be looked upon as one of the most curious of the learned of the last century. Happily this fundamental error is now exploded. No one will now question the fact, that insanity is symptomatic of cerebral disease.

Knowing nothing of the nature of mind independently of and separate from the organisation with which we observe it to be connected during life, we can only study the capacities and modes of action which it exhibits to us in its combined or compound state; and to attempt anything beyond this, would be not only unnecessary, but utterly useless labour. We cannot reach the principle of mind to modify its qualities or manner of being. We can reach it only as acting through the medium of, and influenced by, its material instruments; and consequently all attempts to improve its powers, and to extend its limits, must be conducted with a constant reference to the organic conditions under which it acts, otherwise they will to a certainty fail of success. During life, indeed, the closest relation obtains between the mode of action of the various mental powers and the condition of the brain; every change in the state of the one being always accompanied by a corresponding change in the state of the other. All the faculties of thought and of feeling are feeble and inefficient in infancy, not from any defect in the immaterial principle of mind, but simply from the imperfectly developed condition of the organisation which in this life is required for their adequate manifestation.

The progressive development of the powers of the mind depending on the progressive development of the brain in infancy and in manhood, and their progressive decay in old age, according as the brain then becomes desiccated and less energetic,-the cessation of all mental power caused by the corporeal changes produced by narcotics or disease, and their extraordinary activity on other occasions in consequence of causes exciting the brain, proclaim the close connection subsisting between it and the mind. The latter, indeed, is affected by every change in the former, however slight, and whether arising from external or internal causes. "The touch of a hair upon the skin," says a late writer, "the falling of a single ray of light upon the eye, or of a single atmospherical pulse upon the ear, are sufficient to cause corresponding changes in the state of the mind. Sudden compression of the brain is well known to deprive the patient of all mental power; and it has even happened again and again, that where an opening existed in consequence of a fracture of the skull, by pressing the brain with the finger, consciousness was destroyed, to be restored on the removal of the pressure; and the repetition of the experiment was attended with precisely the same results."-(Combe, p. 67; Ellis on Insanity, p. 46.) The brain in this manner (though not the mind) is just as necessary to manifest the operation of the mind, as the eye is in order that the mind may understand the position of objects around.

These principles are most strikingly illustrated by the following statement of facts :

"In carefully looking over," says Sir W. C. Ellis, of the Wakefield Lunatic Asylum, "the post-mortem reports of those whose cerebral organisation I have examined, I find that, in 154 male patients, 145 had disease very strongly marked either in the brain or the membrane. Of the nine remaining, two were idiots from birth-one died of dysentery, another of epilepsy; the other five cases had not been insane more than a few months, and died of other diseases. Of the females, sixty-seven were examined; and sixty-two found with disease in the brain or membranes; in the other five, no disease was to be discovered."—(Ellis on Insanity, p. 20.) Amidst a multitude of other facts to the same purpose, Dr Burrows states the following:-"Pressure on the jugular veins of maniacs, by which the blood in the brain accumulates, or on the carotid arteries, by which the brain is prevented from receiving its usual supply of blood, has, while the pressure continued, equally produced restoration of the intellectual faculties.”—(Commentaries on Insanity, p. 124.)

The brain may be stimulated in three ways:-1. By irritation at any part of the body with which the mind, through the medium of the nerves, is in contact; and this irritation reacts upon the brain, and superinduces in it a morbid action. 2. By some internal cause acting directly upon the functions of the brain, exciting it to undue activity or depressing its action, but in both cases so acting as to unhinge that even balance in its working necessary to health. Such causes may be sudden prosperity, or love, or misfortune, or intense study, or anxiety, or the like. Causes of this nature are now termed functional. 3. By an external cause arising from direct injury to the brain, such as contusion of the skull, or a coup de soleil. These are local causes.

The greater number of the definitions given of insanity are based upon metaphysical notions of the mental phenomena, without regard to the pathological origin of the disease, and are therefore now worse than useless as affording any rule for ascertaining if the disease exists, and its mode of cure. One of these is the celebrated definition given by Dugald Stewart, that insanity consists in the want of all control over the thoughts, which therefore come and go independently of volition. This is, however, only one of the effects of insanity, and by no means exclusively confined to it, as the same phenomena occur in sleep. Other definitions, again, are characterised by similar defects. Some, according to Dr Mason Good, are so narrow as to set at liberty half the patients in Bethlehem or the Bicêtre, and others so loose and capacious as to give a strait-waistcoat to half the world." Indeed, it is impossible to give a proper definition so as to include all the phases of this disease, or its varieties; and yet, in courts of law, there is no question more frequently put to witnesses than to define what insanity consists in;

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and upon the almost universal failure of every one to convey within the compass of a sentence a definition of a disease which has so many varieties and phases, very frequently the evidence is disregarded. We shall here, therefore, follow the course adopted by later physiologists by saying, that it implies morbid action in that organ by which the mind acts, namely, the brain.

There are peculiar idiosyncrasies of thought and feeling which influence the character and actions, and strangely contrast with the more calm and settled notions of society, which yet in themselves are not the characteristics of insanity, but are the natural qualities of the parties' minds from birth. It is only when such peculiarities of thought and action are exhibited in contrast to the party's former habits, when in undoubted health, or when any quality of mind he then displayed is now seen in exaggeration or in depression-too much excited or too much depressed-that we consider the cerebral functions to be impaired, and hold that the peculiarities noticed are the product of disease. It is for a jury to determine how far this change must proceed before a verdict of insanity can be recorded against the patient; a question, however, which ought never to be taken into consideration at all, until it has been first ascertained whether the eccentricities exhibited are the natural manners of the man, or have been recently superinduced, contrary to his former habits and mode of life. In the former case, we can judge of the party's capability of conducting business in the future from his conduct in the past; in the latter, there is no such criterion, and his capability of doing so at the time of investigation would not be a guarantee that this capacity would continue till the morrow, as he is labouring under a disease whose natural tendency is to go on increasing in intensity.

Georget, the writer of the article "Folie," in the Dictionnaire de Medecine, has given the following striking description of the commencement of the disease:-"Sometimes," he says, "the action of the cause is strong and rapid; at other times more moderate and slow. In the first case, madness breaks out at the end of some hours, or some days, after a state of anxiety and uneasiness, with headache, sleeplessness, agitation or depression, and threatening of cerebral congestion; the patient begins to babble, cry, sing, and becomes agitated and wild. He is then often taken for a person in a state of intoxication; and the mistake becomes apparent only after examining the previous circumstances, and the duration of the malady. In the other case, thought only becomes affected gradually, and often very slowly; the patient is generally conscious of some disorder in his intellectual faculties; he is beset by new and odd notions, and by unusual inclinations; he feels himself changing in his affections; but at the same time, he preserves a consciousness of his condition -is vexed at it, and tries to conceal it; he continues his occupations as much as he can; and lastly, as many people do in the first stage of intoxication, he makes every effort to appear reasonable.

Meantime his health continues to give way, and he either sleeps less or loses sleep altogether; the appetite diminishes or disappears; sometimes digestion is difficult, and constipation supervenes ; en bon point decreases; the features alter; the monthly discharge becomes irregular, weak, and at last is suspended. At the same time, the bystander remarks something unusual and even extraordinary in the tastes of the patient, in his habits, his affections, his character, and his aptitude for business; if he was gay and communicative, he becomes sad, morose, and averse to society; if he was orderly and economical, he becomes confused and prodigal; if he was moderate in his political and religious opinions, he passes to an extreme exaggeration in both; if he was open and candid, he becomes suspicious and jealous; if a wife, she regards with indifference her husband and children. But all these phenomena are less prominent than they may appear to be here; and unless the individual have been insane before, no one may suspect the nature of the ailment which torments him. All the questions put to him lead to no result, except that of fatiguing and giving him pain; for the ignorance which prevails in regard to insanity leads the friends to indulge in offensive insinuations, and to charge him with frivolous accusations, from not perceiving that he is under the influence of disease, and not of reason. Sometimes the appetite either remains entire or is speedily recovered, as well as digestion, nutrition, etc.; and it is in these circumstances that the conduct of the patient gives rise to a host of interpretations on the part of the parents and public."

This period of incubation of mental alienation, during which the true state of the patient is generally misunderstood or not apprehended, may last a long time. Pinel relates that a man who believed his wife to have been ill only six months (the period of the invasion of furious delirium), agreed, after a multiplicity of questions, that the disease must have been going on for fifteen years. It is often easy to go back months or years in this way; and we finish by discovering that circumstances taken for causes by the friends, are frequently only the consequences of unobserved disease.

Exaggeration or depression of natural qualities are also as much signs of insanity as conduct contrasting with former course of life. A religious man may become excited with insane hopes, or depressed with causeless remorse and self-accusations; and others of the like nature may be easily imagined. It is more difficult to draw the line of distinction between healthy and diseased manifestations in such cases, because the change from the one to the other is gradual, and sometimes imperceptible; but in the extreme points it is abundantly obvious. Many men in this state of insanity have been executed for crimes which were in truth only symptoms of their morbid state. The difference is in degree more than in kind. In health the patient is irascible; in madness he is furious: in health he bears provocation to some extent; in madness he waits for no