MEDICAL JURISPRUDENCE

OF

FNSANITY.

PRELIMINARY VIEWS.

STATUTES were framed and principles of law laid down, regulating the legal relations of the Insane, long before. physicians had obtained any accurate notions respecting their malady; and, as might naturally be supposed, error and injustice have been committed to an incalculable extent under the sacred name of law. The actual state of our knowledge of insanity, as well as of other diseases, so far from being what it has always heretofore been, is the accumulated result of the observations which, with more or less accuracy and fidelity, have been prosecuted through many centuries, under the guidance of a more or less inductive philosophy. In addition to the obstacles to the progress of knowledge respecting other diseases, there has been this also in regard to insanity, that, being considered as resulting from a direct exercise of Divine power and not from the operation of the ordinary laws of nature, and thus associated with mysterious and supernatural phenomena confessedly above our comprehension, inquiry has been discouraged at the very threshold, by the fear of presumption, or, at least, of fruitless labor. To this superstition we may look as the parent of many of the false and absurd notions that have prevailed relative to

this disease, and especially of the reckless and inhuman treatment once universally bestowed on its unfortunate subjects. Instead of the kindness and care so usually manifested towards the sick, as if it were a natural right for them to receive it; instead of the untiring vigilance, the soothing attention, the lively solicitude of relatives and friends; the patient, afflicted with the severest of diseases, and most of all dependent for the issue of his fate on others, received nothing but looks of loathing, was banished from all that was ever dear to him, and suffered to remain in his seclusion uncared for and forgotten. In those receptacles where living beings, bearing the image and superscription of men, were cut off from all the sympathies of fellow mén, and were rapidly completing the ruin of their spiritual nature, there were scenes of barbarity and moral desolation, which no force of language can adequately describe. The world owes an immense debt of gratitude to the celebrated Pinel who, with an ardor of philanthropy that no discouragement could quench, and a courage that no apprehension of danger could daunt, succeeded, at last, in removing the chains of the maniac, and establishing his claims to all the liberty and comfort which his malady had left him capable of enjoying. With the new aspect thus presented, of the moral and intellectual condition of this portion of our race, the medical jurisprudence of insanity became invested with an interest, that has led to its most important improvements.

§ 2. In all civilized communities, ancient or modern, insanity has been regarded as exempting from the punishment of crime, and under some circumstances at least, as vitiating the civil acts of those who are affected with it. The only difficulty, or diversity of opinion, consists in determining who are really insane, in the meaning of the law, which has been content with merely laying down some general principles, and leaving their application to the discretion of the judicial authorities. Inasmuch as the greatest possible variety is presented by the mental phenomena in a state of health, it is obvious, that profound study and extensive observation of the moral and intellectual nature of man can

alone prevent us from sometimes confounding them with the effects of disease. It would seem, therefore, an almost self-evident proposition, that a certain knowledge of the mind in its healthy state, is an essential preliminary to the attainment of correct ideas concerning its diseased manifestations. If, in addition to this, it is considered, that opinions on the nature of insanity, viewed solely in the light of a disease, of a derangement of the physical structure, have been constantly changing for the better, it follows of course, that its legal relations, which should be determined in some measure by our views of its nature, ought to be modified by the progress of our knowledge. That much of the jurisprudence of insanity in times past, should bear marks of the crude and imperfect notions that have been entertained of its pathological character, is not to be wondered at; but, it is a matter of surprise, that it should be adhered to, as if consecrated by age, long after it has ceased to be supported by the results of more extensive and better conducted inquiries. It is to be feared, that the principles laid down on this subject by legal authorities, have been viewed with too much of that reverence which is naturally felt for the opinions and practices of our ancestors; and that innovations have been too much regarded, rather as the offspring of new-fangled theories, than of the steady advancement of medical science. In their zeal to uphold the wisdom of the past, from the fancied desecrations of reformers and theorists, the ministers of the law seem to have forgotten that, in respect to this subject, the real dignity and respectability of their profession is better upheld, by yielding to the improvements of the times and thankfully receiving the truth from whatever quarter it may come, than by turning away with blind obstinacy from every thing that conflicts with longestablished maxims and decisions. In the course of the review proposed to be taken of the principles that have regulated the civil and criminal responsibilities of the insane, the reader will have constant opportunity to witness the influence of the spirit above condemned; and be inclined, perhaps, to consider it as the source of that striking difference,

presented by the sciences of law and medicine, in the amount of knowledge they respectively evince on the subject of insanity.

§3. Legislators and jurists have done little more, than merely to indicate some of the most obvious divisions of insanity, without undertaking anything like a systematic classification of its various forms. In the Roman law, the insane, or dementes, are divided into two classes; those whose understanding is weak or null, mente capti, and those who are restless and furious, furiosi. The French and Prussian codes make use of the terms démence, fureur, and imbécillité, without pretending to define them. The English common law originally recognized but two kinds of insanity, idiocy and lunacy, the subjects of which were designated by the term, non compotes mentis, which was used in a generic sense, and meant to embrace all who, from defect of understanding, require the protection of the law. An occasional attempt has been made by jurists, to attach some definite ideas to these terms, and to point out the various descriptions of persons, to whom they may be applied. Lord Coke says, there are four kinds of men, who may be said to be non compotes mentis:—1. An idiot, who, from his nativity, by a perpetual infirmity is non compos; 2. He that by sickness, grief, or other accident, wholly loseth his memory and understanding; 3. A lunatic that hath sometimes his understanding, and sometimes not, aliquando gaudet lucidis intervallis; and therefore he is called non compos mentis, so long as he hath not understanding; 4. He that by his own vicious act for a time depriveth himself of his memory and understanding, as he that is drunken.1

§ 4. Nothing can show more plainly how imperfect were the notions of the early law-writers concerning insanity, than this classification of insane persons, and their attempts to define the several classes. An idiot is defined to be a person who cannot count or number twenty pence, or tell who was his father or mother, or how old he is, so as it may

1 Coke's Littleton, 247 a.

appear that he hath no understanding of reason, what shall be for his profit or what shall be for his loss; but if he have sufficient understanding to know and understand his letters, and to read by teaching or information, he is not an idiot.1 Now the truth is, that many of those whose idiocy is unquestionable, are capable of attaining the kind of knowledge herein specified, by means of the ordinary intercourse with men, or of special teaching. The entire loss of memory and understanding, attributed to the second class, is observed only as a sequel to madness or some other disease, or as the result of some powerful moral causes; so that if this is to be considered an essential character of madness, by much the larger proportion of madmen will be altogether excluded from this classification; for, instead of wholly losing their understanding, they are for the most part perfectly rational on some topics, and in some relations of life; and a little effort is frequently necessary, in order to detect the fact of the understanding being at all impaired. Judging from the almost exclusive use of the term lunacy, and the frequent reference to lucid intervals, the intermittent character of madness was either more common, some hundreds of years since, or, which is more probable, in consequence of the general belief in its connection with lunar influences, this intermission was imagined to occur far oftener than it really did. This certainly is a more reasonable explanation, than the idea that the course of nature has changed, so that lucid intervals, which were once of the most common occurrence in insanity, are now among its rarest phenomena.

5. Common sense and a tolerable share of the intelligence of the time, if fairly exercised, would probably prevent, in practice, any grossly improper application of these theoretical principles; but, in civil cases, the law, though not disposed to guage the exact measure of men's intellects, has sometimes insisted on technical distinctions, that have little

foundation in nature or reason. Originally, commissions of lunacy were granted for the purpose of inquiring whether

1 1 Fitzherbert, Natura Brevium, 583, ed. 1652.