Part 1

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Transcriber’s Notes: Words in italics in the original are surrounded with _underscores_. Variations in spelling and hyphenation remain as in the original. A row of asterisks represents a thought break. A complete list of corrections follows the text.

MEDICAL JURISPRUDENCE,

AS IT RELATES TO

INSANITY,

ACCORDING TO

THE LAW OF ENGLAND.

BY JOHN HASLAM, M.D.

LATE OF PEMBROKE HALL, CAMBRIDGE. FORMERLY PRESIDENT OF THE ROYAL MEDICAL, NATURAL HISTORY AND CHEMICAL SOCIETIES OF EDINBURGH.

London: PRINTED FOR C. HUNTER, LAW BOOKSELLER, BELL YARD; J. HUNTER, ST. PAUL’S CHURCH YARD; AND TAYLOR AND HESSEY, FLEET STREET.

1817.

PREFACE.

The consideration, that in our own language, no work existed on the subject of Medical Jurisprudence, as it relates solely to Insanity, urged me to the present performance. Previously to this undertaking manifold impediments were foreseen, and these difficulties have augmented in every page of its progress:—the apprehensions from this arduous attempt, have, however, been mitigated by the consoling reflection, that in a novel enterprize criticism would be tempered with candour.

The following sheets are addressed to the readers of different pursuits, law and medicine:—from the latter, I have heretofore experienced much indulgence and encouragement, when the result of my professional labours has been submitted to their judgment:[i:A]—to the former I am little known: and here feel it necessary, by a distinct avowal, to assert that I have in no manner presumed to encroach on their province. Although the title may seem to imply an incorporation of the two sciences, yet it is not to be considered as the combination of definite proportions of legal and medical knowledge. It has been modestly conceived that the general phenomena of disordered intellect, and the criteria of insanity, would not be unacceptable to the advocate; who might thereby become enabled to adapt the facts in nature to the scale of justice. Furnished with such information, he will be instructed to institute appropriate enquiries for the discovery of truth, and to ascertain what is the duty of the medical evidence to supply:—so that he may not be pressed beyond his resources, nor the depths of his intelligence be left unsounded. On the practitioner of my own profession I have ventured to impress the importance and moral obligation of his evidence before the tribunal of justice, and to enforce, that the value of medical opinion becomes enhanced by perspicuity of conveyance, and derives authority from the exposure of its foundations. It has likewise been my object, to direct his attention to those leading points which usually constitute the subjects of his deposition, or are presented for his solution during the course of legal examination.

[i:A] Vide Observations on Insanity, 8vo, 1798.—Observations on Madness and Melancholy, 8vo, 1809.—Illustrations of Madness, 8vo, 1810.—Considerations on the Moral Management of the Insane, 8vo, 1817.

The technical language of the learned professions is commonly inveloped in mysterious obscurity:—persons for the most part acquire names without investigating their force and legitimate import; and currently employ them rather from habit than comprehension: it has therefore been my anxious endeavour to scrutinize words of important meaning; and to convey the manifestations of mind and the symptoms of disease, by expressions generally understood, and emancipated from the thraldom of professional nomenclature.

To complete the plan I originally projected, there still remains to submit to the notice of the public, “The consideration of insanity in a political view,” enquiring how far human wisdom, properly directed, might become the instrument to diminish this severe and encreasing affliction,—and especially to point out the desiderata for a _bill_ to protect the insane, and regulate the receptacles wherein they may be confined. Notwithstanding the heterogeneous mass which has been authoritatively diffused on this important subject, the necessary materials have not yet been collected. Those who will probably attempt to frame this measure, have much to learn, and more to dismiss. The production of a wise and salutary bill requires ample research and temperate reflection: and therefore can never be the offspring of minds void of information, and saturated with prejudice. As Insanity is a disease, by the unanimous concurrence of physicians, most certainly to be remedied at the commencement of its attack: it ought to be a leading object with those who possess the power to legislate, to afford every facility to the medical attendant, that he may have an early access to the treatment of this malady, for the restoration of the patient, and for the security of the public. But if the practitioner is to be pinioned by threats, or deterred by obloquy—if his skill is to be circumscribed by ignorance, and his experience subjected to wild hypothesis, and baseless conjecture; then, the enactment will be oppressive in its operation, and incompetent to meet the exigences of intellectual calamity—a bill, calculated to confirm and aggravate the horrors of madness—to invite suicide, and multiply murder.

JOHN HASLAM.

_1st December, 1817, 51, Frith Street, Soho Square._

ON

Medical

JURISPRUDENCE,

_&c. &c._

Medical Jurisprudence has been assiduously cultivated by the different nations of the European Continent; and many works of great value and esteem have been produced by foreign professors of medicine on this important subject. In our own country this department of medical science has been comparatively neglected.[1:A] It is not my intention, in the present tract, to enter generally on the subject of Forensic Medicine: but to confine my investigation to that particular branch which relates to persons of insane mind, and who under the visitation of this dreadful calamity commit acts of violence which subjects them to be arraigned before the tribunal of Justice, or to have their property vested in trust by finding a verdict on a writ de Lunatico inquirendo.

[1:A] Vide an Epitome of Juridical or Forensic Medicine, by George Edward Male, M. D. a work of great excellence and scientific discrimination; also Tracts on Medical Jurisprudence, by Drs. Johnson, Bartley, and Farr.

Although of the utmost consideration, the extent of this enquiry would seem to be very limited, and contained in this simple question. Is the person accused, of insane mind? If he be insane he will be acquitted on the _proof_ of his insanity—if he be not of insane mind, he must be treated as an ordinary delinquent. In those cases where the prisoner is so bereft of his reason, that any twelve men would not entertain a different opinion, where numerous evidences appear to testify to repeated acts of insanity, which are so manifest that they cannot be otherwise interpreted; and where he has been confined and treated for this malady, the physician will have an easy duty to perform: but it is in cases which appear to be involved in difficulty, where the disorder, although existing and directing the actions, is not so ostensibly developed that the medical evidence becomes important, and capable by sagacity, experience and truth, of explaining and characterizing the state of the person’s intellect.

The important duty which the medical practitioner has to perform, when he delivers his testimony before a court of justice, should be clearly defined, conscientiously felt, and thoroughly understood,—his opinion ought to be conveyed in a perspicuous manner; he should be solemnly impressed that he speaks upon oath, the most sacred pledge before God between man and man—and that the life of a human being depends on the clearness and truth of his deposition. He is not to palm on the court the trash of medical hypothesis as the apology for crime; neither should the lunatic receive his cure at the gallows by the infirmity of his evidence—but above all his opinion should be so thoroughly understood by himself; so founded in experience and fortified by reason, that it may resist the blandishments of eloquence and the subtil underminings of cross-examination. The physician should not come into court merely to give his opinion—he should be prepared to explain it, and able to afford the reasons which influenced his decision:—without such elucidation, Opinion becomes a bare Dictum, and endeavours to claim precedence, without courtesy or obligation to science.

It is to be regretted that on many occasions where several medical practitioners have deposed, there has been a direct opposition of opinion:—this difference has sometimes prevailed respecting insanity,[5:A] but more frequently in cases of poison. It is not intended to account for this contrariety of evidence: much will depend on the sagacity of the counsel to institute the proper enquiries; and still more will be incumbent on the medical evidence, in order to explain and establish his testimony. On one side the evidence will be positive; and it is to be presumed that no member of the medical profession would directly state an individual to be insane without being able, satisfactorily to his own reason and conscientious feelings, to exhibit from his conversation, his actions or his writings unequivocal proofs of his derangement. To such well founded illustration, negative evidence would but little avail.

[5:A] Vide my Illustrations of Madness.

The Lawyers object is the interest of his employer, and for the fulfilment of his duty he is frequently compelled to resort to a severity of investigation which perplexes the theories, but more frequently kindles the irritable feelings of the medical practitioner. This distrust on the part of the lawyer, however unpalatable, is fully justified: most witnesses going into court, not with a wish to be examined, but with the preconcerted intention of _proving_ to a certain extent;—and those most conversant in the history of human testimony, have been extremely scrupulous of admitting it as uniform truth until it has been carefully sifted. Guarded with these precautions and armed with professional experience, the medical practitioner may approach the tribunal of justice with confidence, and advantage to the cause of truth. However dexterous he may shew himself in fencing with the advocate, he should be aware that his evidence ought to impress the judge, and be convincing to the jury. The most experienced physician who has seen insanity in all its forms, and viewed its more delicate shades, must in a question of this nature submit his opinion, to the comprehension and feeling of the ordinary persons who are to appreciate his deposition. Their BELIEF of the alleged insanity must be the test by which his scientific opinion is to be established. That which may be deemed by the medical evidence, clear and unequivocal madness, may not hit the sense of the gentlemen of the long robe, nor carry conviction to the jury.

It may here be important to investigate the sources from whence the popular feeling and intelligence concerning madness have been derived; or in other words, what are the foundations for the opinions of the generality of persons, on the subject of insanity? Patient enquiry, daily communication with deranged persons and attentive observation of their habits, confer the means of judging on medical practitioners, and more especially on those, who have for a series of years, solely confined their practice to this department of the profession. The information of the lawyer is principally deduced from the writings of those great legal authorities to which he refers with confidence;—although these grave authorities have laid down _no definition of madness_, nor given any directions how to discover it. The ordinary class of persons, who are usually summoned to act as Jurymen; and who are sufficiently virtuous and intelligent; have in common with the mass of mankind formed their opinions of that state of mind which is denominated madness, and it should be observed that such opinions are not very easily removed or altered. It will be a curious and instructive enquiry, to investigate the circumstances which have, in all probability, contributed to fix their notions on the subject of insanity. They have wanted the means of direct information, and consequently have adopted the popular and floating opinions on this disease. That dramatic representations have forcibly operated for this purpose there is little reason to doubt: and some of the plays of Shakespear exhibit many of the forms which this malady is supposed to assume. Among such characters, none have more strongly fastened on the general mind, than the outrageous Lear, and the distracted Ophelia; the subtil craziness of Hamlet leaves it doubtful if his alienation of mind be real, or conveniently assumed—and to the ordinary observer conveys more of fiction, than the avowed counterfeit of Edgar. Romances, the literary food of the idle and thoughtless, abound in descriptions of intellectual calamity;—but these artificers of fancy, like many unskilful performers, are too prone to strain the loftier impressions of feeling, and distort the energies of passion, into mental derangement. Something of affecting interest may be excited by the weaknesses and wanderings of Maria, but Cervantes has exhibited the happiest and most correct picture of systematic insanity; although the vehicle of chivalry in which it is conveyed, has, to our own countrymen, blunted its interest as a physiological portrait of madness:—his sallies have provoked mirth, and so keen is the relish for the ridiculous, that in the luxury of laughter, the reader has forgotten the tribute of commiseration. Within my own recollection Bethlem Hospital gratified the curiosity of the vulgar of both sexes; these visitors were most eager to penetrate into the recesses of the furious and naked maniac: the hideous howlings of those violently affected, forcibly arrested their attention. With the insane of a milder cast, they were but slightly interested; except the singularity of their actions, or incoherence of discourse were calculated to excite their merriment. They were much delighted with the archness of retort and ridiculous buffoonery which often forms a striking feature in the character of the insane. They were particularly gratified at the manner in which they frequently ornament their persons: a straw crown or sword of the same material pleasingly occupied their attention;—but they passed over the silent and melancholic, and usually retired with the impression, that the quiet and orderly were convalescent, or improperly confined. To impress ordinary persons with the existence of insanity, some prominent and strongly marked features are absolutely required; as the popular feeling and intelligence concerning madness is the result of those glaring exhibitions, those caricatures of disease which the stage represents or romances propagate. Of methodical madness, of systematic perversion of intellect, the multitude can form no adequate conception, and cannot be persuaded that insanity exists without turbulent expression, extravagant gesture, or phantastic decoration. The converse of this has likewise, not unfrequently obtained; and even among those who might be supposed to possess superior information.—Hesitation of speech, nervous and convulsive affections—uncouth gestures resembling St. Vitus’ dance, absence of mind—dulness in comprehending a question, with tediousness and embarrassment in affording the reply, have often induced the mistaken supposition that the party was insane.

On those occasions where the madman has been tried in a criminal court, the counsel for the prosecution has usually and gravely enquired of the medical evidence, whether the prisoner on ordinary topics and on subjects unconnected with his insanity, would not converse in a rational manner: and also whether he did not possess sufficient understanding to discriminate between GOOD and EVIL, RIGHT and WRONG? When a medical person is employed concerning any one to whom insanity is imputed, his principal enquiry is concerning his _in_sanity: it is not his object to ascertain how much reason he possesses, but how far, and on what topics he is insane. And having gauged his insanity he has performed his duty. If it should be presumed that any medical practitioner is able to penetrate into the recesses of a lunatic’s mind, at the moment he committed an outrage; to view the internal play of obtruding thoughts, and contending motives—and to depose that he knew the GOOD and EVIL, RIGHT and WRONG he was about to commit, it must be confessed that such knowledge is beyond the limits of our attainment. It is sufficient for the medical practitioner to know that his mind is deranged, and that such state of insanity will be sufficient to account for the irregularity of his actions; and that in a sound mind, the same conduct would be deemed criminal. If violence be inflicted by such person during a paroxysm of rage, there is no acuteness of metaphysical investigation which can trace the succession of his thoughts, and the impulses by which he is goaded for the accomplishment of his purpose. And it will be shewn hereafter that in some instances he is not himself conscious of his actions. Should an equal injury be inflicted by the crafty and deliberate machinations of systematic insanity, where the motives to action are delusions, the scrutiny into the exact procession of thought which produced the motive, or excited the determination is likewise beyond the reach of the medical practitioner. As it would be difficult in a person of the soundest mind to detect the succession of thoughts, tracing that which was most remote _from_, to that which was proximate _to_, the action; it can less be expected that the medical evidence should be capable of noting the consecutive irregularities of a disordered intellect.

Respecting the quantum of reason which the lunatic possesses, the physician may safely conclude, where he betrays no derangement, that on such topics he is of sound mind; and the fact is firmly established, that those who are insane on particular subjects, will reason correctly on ordinary and trivial points; _provided they do not become associated with the prevailing notions which constitute their insanity_. Ordinary persons have been much deceived by this temporary display of rational discourse, and it generally occurs that we are disposed to form a hasty conclusion, in proportion to the paucity of our knowledge on any given subject:—most minds feel more invited to indulge in the convenience of a syllogism, than to undergo the toil of induction. Although an insane person may be calm and apparently rational at the beginning of an interview, yet when least expected his disorder breaks forth, and in many instances, there seems to be no cause for this conversion from apparent sanity to evident derangement. In the commencement of the conversation the lunatic shall evince a healthy perception of existing objects, and institute a just admeasurement of the subject under contemplation; or in other words shall reason correctly; if he be placed in the society of other madmen he is able to detect the folly and aberration from reason which characterize their peculiar phantasies, and will often endeavour to convince them of the absurdity of their prevailing opinions, yet in a moment his mind launches into the regions of fiction, its admired clearness becomes obscured, and its seeming regularity exhibits a confused assemblage or violent distortion.—There is no intermediate condition which separates these states: and the transition very much resembles the last connected glimpses of our waking thoughts, followed by the abrupt creation of a dream.

This occasional display of rationality, although admitted by all who have had experience of the insane, excites a doubt in the minds even of learned and intelligent persons who have merely speculated on this disease. They have conceived, from the existing philosophy of the intellect, that reason is the directress of human actions,—that this high arbiter of thought is an undivided principle,—that where the rudder is attached the ship may be steered—and that he who reasons must be rational: and so he is, _as long_ as he _does_ reason. But the inference of the integrity of the reasoning faculty in consequence of occasional gleams, is a gratuitous and groundless supposition. It often happens that persons may converse for some time with a lunatic, and find him apparently composed and rational; he will discuss the floating topics of the day as another man,—accord with the most enlightened on the general principles of morals, and correctly estimate the light and shadow of human conduct. If the observer should here retire he might be convinced of his sanity: but let him protract the discourse, let him touch the fatal string which throws his mind into discord: let him draw the hair-trigger which inflames the combustible materials of his disease, and he will be surprised if not alarmed at the explosion. The sweeping tyranny of madness scorns the demarcation which limits the sober mind; and it should likewise be taken into account that the subjects which constitute the insanity of a person, are the prominent features of his mind, and are more frequently recurred to than any other. It is true he may discuss ordinary topics like other men; but this to him is a species of bye-play, and he soon reverts to the interest or catastrophe of his drama. Whatever may be the subject of discourse, and however rationally he may appear to treat it, the experienced practitioner will expect, and he will not often be disappointed, to find that by some unaccountable association, even ordinary topics are linked with his darling delusion,—the map of his mind will point out that the smallest rivulet flows into the great stream of his derangement.

On a more attentive consideration, there appears to be something latent and perhaps mischievous, in the terms GOOD and EVIL, RIGHT and WRONG, as applied to cases of insanity. If an _insane_ person be responsible for his conduct, I know of no law which sanctions his confinement. If he can discriminate between GOOD and EVIL, RIGHT and WRONG, on what pretence is he to be deprived of his liberty? Is it humane to suppose him in his senses when he becomes most outrageous? Is it christian-like to deem him responsible, because the violence of his disorder tears down the fences of the law, or snaps the ties of natural affection? Ought he to be punished when he is most to be pitied? If it be supposed that the terror of example will prevent the sallies of the maniac, it is a lamentable mistake. His belief in the GOOD of his principle, his faith in the RIGHT of his actions, are superior to arguments,—his motive cannot be controlled by reason, nor baffled by the fear of punishment. Impressed with a _belief_ in the truth of his delusion, he hurries forward to its accomplishment: and in the pursuit of the phantom cannot be diverted by the most awful consequences. He is of those

“quem neque pauperies “Neque mors, neque vincula terrent.”

It is this firm belief, this fond indulgence of opinion which makes him prefer seclusion to liberty; and leads him rather to forego existence than renounce his delusion. It is the same principle, which in a good cause, cheered the martyr at the stake, and raised his exultation while the flame consumed him. It is this BELIEF, however erroneous, which kindles enthusiasm in a cause, and arms us to defend it.