Physician and patient

by Worthington Hooker

This chapter is already so long, that I must devote less space than I originally intended to the legal relations of insanity. A few points only can be briefly noticed.

The legal relations of insanity are very imperfectly understood, even by those who are concerned in the administration of justice. The lawyer at the bar, and the judge on the bench, often exhibit great ignorance on this subject. The history of the legal definitions of insanity, given by learned judges, is almost from beginning to end a history of profound blunders. And yet these definitions have been the guide in trials in which insanity has been alleged, except when they have been set aside by the plain common sense of the jury, as has sometimes very fortunately been the case. In speaking of the inconsistencies and absurdities of the English law in relation to insanity, Dr. Bell, in his valuable report to which I have before had occasion to refer, remarks, that “from the test of Judge Tracey, that to exempt from criminal responsibility, the patient should know absolutely nothing, to that of a later tribunal, where ability to repeat the multiplication table was gravely considered as the exact point in a civil case, the doctrines and decisions have been amusingly strange and inconsistent. Even cunning, foresight, calculation, all possessed occasionally in a wonderful degree by the most insane patients of every hospital, have been regularly decided by the highest English tribunals, to contraindicate the existence of that degree of alienation which implies criminal irresponsibility!”

The course which is adopted by our courts, to decide whether a man accused of any crime is insane and therefore irresponsible, is a very objectionable one. In France they are far in advance of us on this subject. The course there is to place the accused, if suspected of insanity, under the examination of a commission composed of men who are practically qualified to decide such a question. “Upon them,” says Dr. Bell, “rests the awful responsibility of determining the state of the mind of the accused, as to the one fact of insanity; they approach him at all times, they watch his actions in his presence and without his knowledge; his habits, his sleeping and waking hours, his physical condition, everything in fact which can throw light upon the momentous question, passes under slow, persevering, scientific investigation. Under the responsibility of reputations as precious to them as those of the highest court, and under the sanction of an oath, they arrive at conclusions, and present their reasons for such conclusions, which form one, not the exclusive, element for a court and jury to arrive at a just judgment.

How are the facts, elucidating the state of a prisoner’s mind after a doubtful act, ascertained with us? The functions devolved in France upon the bright professional luminaries such as I have named, here fall upon the gaoler, the constables, and the turnkeys. Experts may on the day of final trial be summoned in, to give their opinions on testimony, derived from such sources as this! No provision exists for any investigation beyond the volunteer aid, which such an ungracious task will rarely secure. The moment for investigating the perhaps fleeting manifestations and evidences of disease passes, before the law makes the least advances for the prisoner’s protection. I have even known the instance of a professional man whose life was spent among the insane, and who, moved solely by humane feeling, had visited in prison a friendless wretch whose homicidal act was feared from circumstances to be the result of insanity, being held up and vilified to a jury by a government functionary, for his officious intermeddling in matters in which he had no concern!”

Such having been the opinions and practices of our courts of justice, it is not strange that the rights of the insane have often been trampled upon and that even life has been sometimes sacrificed under all the solemn formalities of law, for acts committed in the irresponsible condition of insanity. I could cite many sad cases in illustration, but I will merely advert to one of a recent date, which the efforts of one individual prevented from being added to the long list of cases, in which the robe of justice has been stained by the blood of irresponsible maniacs. I refer to the trial of the poor negro Freeman, who killed the Van Nest family, consisting of four persons. In this case a verdict of guilty was given, and the community who came near resorting to Lynch law before the trial, were eager to have the sentence executed. Governor Seward, who, to his praise be it spoken, as a volunteer nobly stemmed the raging torrent of popular excitement, defended the prisoner. He succeeded in obtaining a grant for a new trial. This trial never took place. The judge, before whom he was to be tried, visited the prisoner in his cell, and becoming satisfied of his insanity, refused to try him. In a few short months the prisoner died, leaving no doubt upon the mind of any one acquainted with the case that he was truly insane.

It is true that the plea of insanity, just like any other plea, is often set up when there is very little ground for it. But there is good reason to believe, that it is very seldom established and made the basis of an acquittal, when it ought not to be. Dr. Bell remarked upon this point in 1844, that “it may be a consolation and an encouragement to juries, in faithfully following out their own sincere convictions upon the law and evidence in such cases, to know, that in a pretty diligent inquiry as to the event of every case of homicide in New England, where the accused has had the defence of insanity ‘set up’ for him, and been acquitted on that ground, it has been found that not a single instance has occurred, where the progress of time has not abundantly verified the soundness of the defence.” And he has recently informed me that this assertion holds true up to the present time.

While it is important that justice should be secured to the insane, when placed under trial for acts which they have committed, it is of still greater importance that such acts should, if possible, be prevented. If, when a man in an irresponsible condition destroys the life of a fellow-man, we prevent his innocent blood from being shed, we do well: but if we recognise the existence of that condition, and the danger to others which attends it, sufficiently early, to take measures to prevent his destroying the life of his fellow-man, we do better.

This point of prevention should be made an especial object of legislation. But in this country the laws which aim at this object are exceedingly defective. In Connecticut it is the duty of the civil authority and select men to order “any lunatic, who is dangerous and unfit to be without restraint to be confined in some suitable place.” If they fail to attend to the complaint, in three days it may be brought before any justice of the peace, and he can issue such an order. In Massachusetts the judges of Probate may commit to the hospital any lunatic “who in their opinion is so furiously mad, as to render it manifestly dangerous to the peace and safety of the community, that he should be at large.” The objectionable points in these provisions are two. 1. Those are made the judges of the fact of insanity, and of the danger to the peace and safety of the community attendant upon it, who are not competent to pass such judgment. When we say that judges of probate, selectmen, and justices of the peace are not thus competent, we say nothing to their discredit. Insanity is a subject which they have no opportunity of understanding with any definiteness or to any extent. 2. The terms in which these provisions are couched show, that only great and manifest danger is contemplated by them. Some outrage or attempt at outrage is commonly therefore to be proved, in order to authorize in the view of the law the confinement of the person complained of.

With such defects in the provisions of the law, it is no wonder that the community is occasionally shocked with outrageous, even fatal acts by insane persons, who through neglect have been permitted to go at large. Indeed, in some cases there has been no apprehension of danger up to the time of the commission of such acts; and yet if these cases had been submitted to the examination of those who have knowledge and skill on the subject of insanity, the danger would, generally, at least, have been foreseen, and the acts would therefore have been prevented. To secure such an examination a standing commission of lunacy should be appointed, composed of physicians who are properly qualified to decide the important questions which would come before them. Every case of suspected insanity should be subjected to their examination, and it should be their duty to prescribe what measures shall be adopted in regard to each case. Such a commission would not only prevent the peace and safety of the community in many cases from being violated, and save many valuable lives, but it would also secure a recovery in many cases of insanity in which now neglect renders such a result impossible.

Many other points in regard to the legal relations of insanity might be noticed with profit and interest to the general reader, but this chapter is already sufficiently long. In conclusion I cannot but express the hope that our lawyers and judges will give more attention to this part of medical jurisprudence; and that the abuses which exist may be speedily removed, so that the pretender to insanity may be sure to be detected and punished, and the truly insane may as surely be secured in their rights.