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Popular Science Monthly/Volume 36/November 1889/Responsibility in Mental Disease


I CAN not pretend to summarize what has been written or said about insanity and crime during the last forty years, or a fourth of that time. All that I propose is to submit a few observations which have occurred to me on the following points: (1) on the insufficiency of the definition or test of insanity at present accepted and acted on in courts of law in this country, and on an amended test which would commend itself to medical experience; (2) on the value of expert testimony in establishing the existence and nature of insanity in courts of law; and (o) on a practical step toward the reconcilement of medical and legal differences of opinion on questions of insanity and crime.

What is the law of England with reference to insanity as an excuse for crime, and how far is that law reasonable and in accord with the conclusions of medical science? As to what the law is, there can not be much doubt, for every judgment delivered in cases in which the plea of insanity has been set up since 1843 has been founded on the answers then returned by the judges to the questions put to them by the House of Lords during the ground-swell of the McNaghten case. The gist of these answers runs: "That to establish a defense on the ground of insanity, it must be clearly proved that at the time of committing the act the 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." Now, it is obvious that under this ruling, if I may call it so, are included a large number of cases of insanity. Under it would stand excused the raving maniac who does not apprehend the nature or quality of any act, the idiot who is in the same predicament, the fatuous person who can not foresee the consequences of his acts, and the victim of delusions, when these are of such a character as would justify homicide were they beliefs entertained by a sane man. But it is, and always has been, equally obvious to medical men that this ruling excludes a considerable proportion of cases of insanity in which moral as distinguished from legal irresponsibility exists, and that it is faulty in founding the test of insanity on knowledge or an intellectual state while it ignores states of the emotions and will, which are always more influential on conduct than intellectual states, and bulk far more largely in insanity. The test of insanity which commends itself to medical men was never more clearly and succinctly expressed than by Lord Bramwell when in the Dove case he asked, "Could he help it?" Could he or she help it? That is the real practical question at issue in every case in which the defense of insanity is set up. Was the lunatic free to choose, or under the duress of disease? Was his will incapable or inept? But Lord Bramwell and those who think with him argue that it is sufficiently proved that the lunatic could help it if he knew the nature of his act—viz., that it was killing; the quality of his act—viz., that it was a crime; and also that it was wrong in the sense of being forbidden by law. Whereas medical men, almost without exception, maintain that a lunatic may be able to know and express the nature and quality of an act and its wrongness, and yet be as unable to resist doing it as he is to abstain from jumping under a smart electric shock; and that knowledge of the nature and quality of an act and its wrongness is not in the regions of pathology any measure of will-power. And not only medical men, but judges, have perceived this. The late Lord Chief-Justice Cockburn said, "The power of self-control, when destroyed or suspended by mental disease, becomes, I think, an essential element in the question of responsibility." And Mr. Justice Stephen has said, "It ought to be the law of England that no act is a crime if the person who does it is at the time when it is done prevented by defective mental power, or by any disease affecting his mind, from controlling his own conduct, unless the absence of the power of self-control has been produced by his own default." This statement of the law, which has been verbally amended by Dr. Bucknill, really covers all that medical men have ever contended for, and, having received it from so high an authority, it is their duty to do their best to secure its acceptance, and provide trustworthy tests of loss of self-control.

Now, impairment of will, or loss of self-control, more or less pronounced, is, according to medical men, the first, last, and universal element in insanity, and ranges from a trifling reduction in the check-action which we exercise on the ordinary currents of thought and feeling down to paralysis of the sphincters. Dissolution—and insanity is dissolution—implies a reversal of evolution, and in insanity we have, as Dr. Hnghlings Jackson has taught us, a process of undevelopment, or taking to pieces, in the highest centers, which are the crown or climax of nervous evolution. In it we have "a descent from the least organized, most complex, and most voluntary, toward the most organized, most simple, and least voluntary." There is in every case of insanity impairment of voluntary control, and as a consequence of this there is more or less license given to those lower mental functions which are during sanity under voluntary control, and which become then overactive, their overactivity being expressed in delusions, hallucinations, wild and whirling words, and extravagant actions.

When our attention is withdrawn—as, for instance, when we have dropped into a reverie or are just falling asleep—a sound that might have made us turn our heads, if on the alert, will cause us to start violently; and when in insanity volition is impaired, sensations that would have been almost unnoticed in health stir up morbid feelings. Did time permit, I think I could establish that affinitive sights, sounds, smells, tastes, and surface impressions, as well as organic sensations, play a larger part than is generally supposed in the induction of morbid impulses when the regulating brain-centers are weakened. Many sane persons have experienced horrid promptings when standing looking over a precipice or gazing at a passing train, and among the insane the glitter of a knife or the crackling of a fire will sometimes evoke suicidal or homicidal impulses which but for it might have remained dormant.

Will is the link between feeling and action, and when it is impaired it ceases to be available to prevent the transmutation of the energy of feeling into the energy of motion. And here we have an explanation of the utter inadequacy of the motives that constantly lead to insane crimes. There is no check-action; there is an abbreviation of that pause that gives time for foresight and reflection. "Must give us pause!" says Hamlet when on the brink of suicide time to summon up the forces of rational resistance. Man is a hesitating animal. The whole system of Zoroaster hinges on the fact that everything noxious and evil in creation is the work of Ahriman, an independent power, whose wickedness depends on the fact that he acts before he thinks; whereas Ormuzd, the good spirit, thinks before he acts. And madmen may in many instances be distinguished from sane men in the same way. The impulsive madman acts before he thinks; feeling is translated into action with reflex precipitancy, with an abbreviation of that time interval between stimulus and response which can now be subjected to experimental measurement; in the absence, therefore, of all restraining considerations, and in a violent and disproportionate manner. I have known an epileptic to kill his attendant, beating his head into jelly, because he had prevented him from taking his daily walk. I have known another epileptic hang himself because a smaller portion of bread and butter had been served out to him than to his companions; and, in the recent case at Westonsuper-Mare, the lad Hitchins shot his sister because of some trifling slight which she had put upon him. In all such cases a momentary irritation, a natural feeling of chagrin, such as we all feel when thwarted or disparaged, instead of being inhibited in its nascent state when inhibition is most powerful, so that the reaction to it may be reduced by deliberation to rational proportions, is, by the diminished resistance of the will and the consequent overaction of the lower centers, permitted to become fixed or to express itself in a grossly exaggerated manner.

That voluntary power is invariably impaired in insanity is not perhaps evident to those who have not looked closely into the matter. Is it not true, it may be asked, that some insane persons exhibit extraordinary fixity of purpose and persist in some course of conduct—as, for example, the refusal of food with dogged obstinacy? That is so, but insane obstinacy is no more an indication of voluntary power than is the late rigidity of a paralyzed arm. That state of late rigidity in which the arm could not be stretched without being broken betokens that certain lower centers have been cut off from intercourse with higher ones and are undergoing degeneration; and so the unreasonable obstinacy of lunatics in insane conduct merely indicates that certain mental functions have escaped the regulation of volition, which is enfeebled, and are acting in an irregular and self-willed manner in consequence.

No doubt in all cases of insanity a certain amount of volitional power is retained, and this may in certain cases be effectual to some extent over the morbid mental manifestations. There may be contributory negligence on the part of a lunatic, just as there may be on the part of an invalid. Prof. Rüble, of Bonn, recommends the birch-rod and shower-baths in certain cases of chronic vomiting, and asserts that children often die of a bad bringing up, and adults because they can not, when ill, make up their minds to do what is right and omit what is hurtful; and Niemeyer quotes with approval the dictum of the wife of a Prussian general, a most determined woman but a tender mother, that whooping-cough is only curable by the rod. But no one in this country would now sanction such heroic treatment, or believe that anything but evil could come from such stringent appeals to a mere remnant of will in its corporeal relations; and so it would be dangerous in cases of insanity, in which will is obviously and seriously involved in its mental relations, to infer that what survives of it might, if put forth, have prevented a criminal act. In insanity, in which the mental movements are typically involuntary, but yet susceptible of some control, we must not expect of the patient what is beyond his strength—the habitual suppression of his morbid impulses. The criminal act of a lunatic is sometimes so alien to his healthy disposition, or so clearly motiveless, that we have no hesitation in concluding that his true will must have been in abeyance when he fell into it. At other times it follows upon mental struggles which he has himself described, and asked help in, previous to its commission, and is therefore clearly but the climax of a pathological process signifying the overthrow of the will. And at other times, again, it is associated with mental and bodily symptoms which, our experience has taught us, correspond with complete paralysis of will.

A lunatic may unquestionably commit a crime under ordinary motives. It can not be contended that every mental oddity and isolated delusion is to put a man beyond the pale of the law, but it is to be remembered that a really isolated delusion is a rarity, and that most delusions are but local manifestations of a constitutional vice, involving weakening of will. Most lunatics are, it has been said, mad to their finger-tips; and what appear to be their sane acts are generally more or less tinctured with insanity.

I can not pause here even to sketch the several stages of mental dissolution, but I would suggest that there are practically three levels of these in connection with lunatic crime. They are—the ideational level, the impulsive level, and the automatic level. On the first, the ideational level, the criminal act is committed under the influence of an insane motive or a delusion or hallucination, with consciousness at the time and remembrance afterward of all that has taken place, but in consequence of a diminution of inhibitory or resisting power. On the second, it is committed under the stress of a sudden and irresistible impulse, which is often a reversion to a mere animal instinct, with vague or imperfect consciousness at the time, obscure remembrance afterward, and under a still more grave paresis of inhibitory power. On the third, it is committed under the influence of accidental or reflex suggestion, without consciousness at the time or remembrance afterward, and during the complete abrogation of inhibitory power. As illustrations, I may mention on the first level the case of a man who kills his friend with elaborate preparation to spare him suffering, because he has been told by the archangel Michael that the death of that friend is necessary to the extinction of Freemasonry, which is the curse of the human race, and who afterward describes the homicide' in detail, and with evident pride and satisfaction; on the second level, the case of a puerperal woman, who, seeing a glittering knife by her bedside, suddenly cuts her baby's throat, without afterward having any clear recollection of the event or being able to say why she did it, although the knowledge that she had done it fills her with grief and remorse; and on the third level, the case of an epileptic, who, while recovering from a fit, kills whoever happens to be nearest to him, while still unconscious, and who retains afterward no trace of recollection of the tragedy.

It seems to me that nothing has more retarded an approach to a just appreciation of the relations of responsibility and disease than the assent, tacit or explicit, generally given to the dogma that the existence of insanity is a question for men of common sense—a question which they are quite as capable of deciding as medical men or experts. The late Lord Shaftesbury, who, by his philanthropic labors, conferred such signal benefits on the insane, did some disservice to medical jurisprudence when he lent the weight of his authority to this doctrine, and maintained that "persons of common sense, conversant with the world, and having a practical knowledge of mankind, brought into the presence of a lunatic, would in a short time find out whether he was or was not capable of managing his own affairs"; and the late Sir Benjamin Brodie erred, I think, still more grievously when he said: "It is a great mistake to suppose that this is a question (unsoundness of mind) which can be determined only by medical practitioners. Any one of common sense, and having a fair knowledge of human nature, who will give it due consideration, is competent to form an opinion on it; and it belongs fully as much to those whose office it is to administer the law as it does to the medical profession."

Now, it may be admitted that there was a time when medical science was in its infancy, when the functions of the brain were unknown, and when only metaphysical explanations of insanity were attempted, at which the existence of insanity in any given case might have been as correctly determined by plain, unsophisticated men as by pretentious empirics. Further, it may be granted that there are an immense number of cases of insanity in which the symptoms of the disease are so obvious and external, that special skill, although requisite to interpret these symptoms, explain their causes, predict their results, and prescribe treatment, is not necessary to their identification. But, beyond all this, there are, it must be maintained, cases of insanity of so obscure and subtle a nature that they can only be properly identified by those who have made themselves intimately acquainted with the functions of the nervous system in health and disease, and who have by experience come to appreciate the significance of combinations of mental phenomena and of concomitant bodily variations, which would appear meaningless to the uninitiated.

The fact is, that practically the utility of expert testimony in insanity is acknowledged, and it is difficult to understand how it could be otherwise, for all who have made only a superficial study of mental diseases must perceive that there are in them little signs and symptoms, perversions of thought and derangements of bodily functions, which would altogether escape the notice of common sense, but warrant an expert, founding on his experience, in proclaiming that the will is reduced to impotency, and that the lunatic can not control himself. There is something in the appearance, manner, and mode of expression of lunatics of various classes which would pass unnoticed by common sense, but be characteristic to those who had been accustomed to watch them narrowly. There are styles of morbid thought which can not be simulated. There are latent or concealed delusions which start into view when the appropriate spring is touched. There is the order in disorder of dissolution which can not be imitated. There are types of delusions and hallucinations which are easily recognized. And, above all, there are physical signs of disorder of the brain and nervous system which correspond with certain stages in the degradation of will-power.

To the expert witness in cases of insanity and crime these questions should, it seems to me, be put: Was the prisoner insane at the time when he committed the act of which he is accused? Was his insanity of such a nature and degree as to deprive him of control over his conduct? What are the grounds upon which you have formed these opinions? It would then remain for the jury, aided by the judge, and with the assistance of other experts if necessary, to decide on the validity of the grounds stated and on the weight to be attached to the opinions expressed.

Expert testimony, to be of the highest value, ought of course to be founded on an examination, or, better still, on repeated examinations, of the accused, made as soon as possible after the perpetration of the crime. But insanity is a chronic disease; and even when the expert has not seen the alleged lunatic until some time after his crime, he may still be able to say whether in the course of a disease still existing, or of the recent existence of which there are traces, such a criminal act was likely to crop up as part and parcel of the disease; and whether it is consistent with his experience and with the history of the act that the accused could not help it. When the crime was committed during a temporary paroxysm of madness or during an attack from which recovery has taken place before the examination has been ordered, it may still be possible for an expert to say whether the symptoms described to him form a true picture of mental disease or are only a spurious copy, and whether any wreckage still marks the course of a nerve-storm. Sometimes it will be impossible for an expert to make up his mind either one way or the other, and then it is his duty plainly to say so.

And now I have a practical suggestion to offer which would, if adopted, I venture to believe, do more to reconcile the great professions of law and medicine on the questions at issue between them respecting insanity and crime than any prolongation of those elaborate and sometimes highly spiced logomachies in which they have both indulged in the past.

What is wanted is a series of skilled and sustained observations on homicides who have escaped punishment on the plea of insanity, made by competent and unbiased authorities, couched in language understanded of the people, and published from time to time. And, in order that such a series of observations may be pursued, I would propose the appointment of a committee or commission, composed in equal parts of lawyers and medical men, whose duty it should be to visit the asylums as often as they might deem expedient, to examine individually all patients detained there who have been charged with murder, and also the officers of the asylums, and their case-books and registers, and to report annually on the mental condition of every such patient, with special reference to the circumstances of the crime of which he or she was accused, and the evidence adduced at his or her trial, adding such remarks on the relations of insanity and crime, and such recommendations for alterations of the law, as their experience may suggest to them.

Looking forward to such reports, the faithful scientific witness would speak with confidence, assured that his evidence, although it might appear strained at the time, would be confirmed by events; while the pseudo-scientific witness, if there be any such, who is led into the box by a thirst for notoriety or a spurious philanthropy, would pause before committing himself to statements which might rise up in judgment against him in a very damaging and persistent way. And there can be no impropriety in alleging that such reports would ultimately prove useful to judges and counsel.

Beyond this, the deliberations of such a commission would conduce in some degree to an agreement between lawyers and doctors on the question of insanity and crime. It is in the atmosphere of the courts of law that differences between them spring up, differences which in private conference speedily dwindle away. It is about theoretical definitions and verbal distinctions that they contend; and wherever they are brought together in actual contact over a case anywhere save in a court of law, the lawyers with striking aptitude adopt the scientific standpoint, and harmony results.—The Lancet.


  1. Abridged from a lecture delivered to the College of State Medicine.