THE PLEA OF INSANITY.

By HORACE E. SMITH, LL. D.

[Read before the Albany Institute, January 31, 1882.]

The extraordinary trial of Guiteau for the assassination of President Garfield has directed public attention with unusual interest to the defense of insanity in criminal prosecutions. The subject involves questions of great importance, and considerable difficulty. It is the aim of this paper to present briefly, in outline, the present status of the subject, with some of the difficulties surrounding it, and the vexed questions involved. Its main design is to stimulate thought and discussion, which may contribute to the realization of a more just, uniform, and satisfactory administration of the criminal law, when the plea of insanity is interposed as a defense. The objective point of all inquiry and discussion is, the adoption of such rules and methods as shall be most likely to secure the conviction of responsible parties, and protect the irresponsible when charged with crime, and convicted of the overt act. Now, unfortunately, it often happens that guilty parties escape through the plea of insanity, while sometimes, possibly, the irresponsible insane are convicted and punished. This defense has become so common, and is often interposed on such weak grounds, that the popular mind has come to regard it with marked disfavor, and courts, even, look upon it with a wary and suspicious eye. And yet, if legal insanity really existed when the alleged crime was committed, there is no better or more meritorious defense known to the law. An essential ingredient of crime, especially crime of the grade of felony, is criminal intent, and this implies a sane mind, without which such intent cannot exist.

For convenience of presentation, and without special reference to logical arrangement, the subject will be examined under three heads: The Fact, the Law, and the Procedure.

First, the Fact:

The plea of insanity presents a question of fact for the jury which is both a question of fact and a question of science; not a question of physical science, but of metaphysical and psychological science. If the court and jury, and expert witnesses had to deal with physical facts alone, which may be subjected to the test of experi

mental and demonstrative science, their task would be comparatively easy. But they have to deal with the outward, physical manifestation of inward, immaterial, occult forces.

The astronomer, by the aid of his instruments and mathematical science, is able to make an accurate survey of the heavens, weigh the planets as in a balance, and trace their orbits with unerring precision. The scientist, with his glass, reveals the wonders of the microscopic world, and makes the solid earth seem instinct with organic life. But with what instruments shall the psychologist examine the soul? By what science, pure or applied, shall he determine its nature? By what mathematics, speculative or mixed, shall he unfold with precision its laws and powers? The surgeon cannot subject it to his knife, nor the anatomist to his scalpel; it is beyond the power of chemical analysis; it will not respond to the inquisition of the microscope. What is it? Where is it? What is the fact and the law of its connection with the body? These and other questions may casily be asked; but an attempt to answer them satisfactorily will at once reveal the intrinsic difficulties involved.

And these difficulties are presented by the mind in its normal state, studied by a mind in the same condition, when the investigation is aided by introspection, the observer beholding in himself, as in a mirror, the general features of his study.

But how immeasurably are the difficulties increased when the subject is a mind in an abnormal state; when, instead of light and divine order, there is darkness and tumultuous chaos; and when the student finds no assistance from corresponding features within himself!

Dr. Elwell, in a recent issue of the North American Review, writes thus: "The human mind, connected as it is with matter, so far as we know any thing about it, in its best estate is an unknown quantity, having no unit or standard of measurement by which it can be accurately defined. Hence it is often most difficult, or even impossible, to determine precisely when there is a departure from a healthy standard or normal condition. No two individuals being alike in their normal condition of mind, it follows that each must be his own standard for comparison, and that an uncertain one. No words in the language have yet been able to define mind, sane or insane; and it has no synonym but mystery. Over the portal that leads to the luminous temple where thought dwells, the pilgrim who would enter there sees written in letters of living light the inscription: Put off thy shoes from off thy feet, for the ground whereon thou standest is holy ground.' It is the temple of an unknown God, and whosoever would rush unbidden into this presence, thinking to sit face to face with and

understand its mysteries, is but little less than a madman himself. Whether the subject be sanity or insanity, it will be found firmly and securely intrenched behind ramparts, and surrounded by insurmountable difficulties-a terra incognita."

The difficulties are augmented by the great variety of forms and hues which mental alienation assumes. From the raving maniac, exhibiting the fury of a demon and the strength of a giant, there are all degrees and shades, down to the imbecile, or the morbid misanthrope seen in the picture of Byron, as drawn by himself in his Manfred.

The perplexities of metaphysical study are also enhanced by inharmonious theories on the subject of mental unsoundness.

The leading schools are the psychic and the somatic. The former is based on the assumption that the primitive source of insanity is in the soul itself, and that the soul is what originally suffers, imparting, when there is sympathetic insanity, its malady to the brain.

The latter, the somatic theory, assumes that the soul itself, as such, is incapable of originating a disease; that the occasion of every affection of the mind is to be found in some abnormal bodily development; and that aberrations of the mind are nothing more than disturbances of some functions of the soul produced by bodily abnormities.

There is a third, or intermediate theory, which attributes to the body and the soul alike originative influence in the growth of mental disturbances. This theory has able advocates, and may be the golden mean of truth between the two extremes. There are phenomena difficult, if not insusceptible, of explanation upon either of the extreme theories alone; and the intermediate theory, which recognizes the reciprocal influence of body and soul in mental alienation, seems to resolve some difficulties not otherwise explainable. While these conflicting theories complicate medico-legal investigations to a considerable extent, they are not so embarrassing as might at first view be supposed. And this for the reason, that whatever theory be adopted respecting cause, medical experts have to deal mainly with effects.

The disciples of the psychic and the somatic school alike deal with phenomena, which in particular cases are the same, whether the producing cause originated in the body or in the soul. While it is easy

for medical experts to differ when interest or feeling excites antagonism, on the other hand, it is comparatively easy for them to agree when they speak to the phenomenal rather than the causal character of the case before them.

In all matters of science and philosophy, and especially on metaphysical and psychological subjects there always has been, and prob

ably always will be, a tendency to speculative theories and over-worked hobbies. Men of a speculative cast of mind, and a controversial disposition, will sometimes frame a theory upon a very limited number of facts, experiments, or observations, and thereafter adjust every thing to it; bending facts and phenomena to such theory when they will yield, and boldly questioning or ignoring them when they will not. There are few men who possess the requisite force and grasp of intcllect, combined with a well-balanced mental organization, coolness of judgment, freedom from emotional disturbance, patience to wait tho slow processes of inductive methods, and perseverance to push them to legitimate results, which are indispensable to safe conclusions in the realm of psychological investigation. Such men there are, however, and they are making steady advances in psychological medicine; and we may reasonably hope that at no distant day their labors will result in relieving medical jurisprudence from some of its present embarrassments.

Within a comparatively recent period moral insanity has become a disturbing element in criminal jurisprudence. By this name is meant insanity of the moral system, co-existing with sanity of the mental.

It assumes that the moral and mental functions are so separable that one can be insane without involving the other; and that this severance actually exists in cases of moral insanity. It is claimed by the highest authorities that this species of alleged insanity has, psychologically, no existence; and it is generally repudiated as a legal defense. It will have been noticed by readers of the Guiteau trial, that the most distinguished experts there examined deny the existence of moral insanity. It still finds distinguished advocates, however, both among alienists and jurists; and even when overruled as a defense, it doubtless sometimes creeps into the jury-box and secures a verdict of not guilty, against law and evidence.

The perplexity caused by this alleged species of insanity is greatly increased by its numerous subdivisions into the large and increasing family of monomanias. Among these may be mentioned homicidal. mania, kleptomania, pyromania, erotomania, pseudomania, oikeiomania, dipsomania, fanatico-mania, and politico-mania. In his testimony on the Guiteau trial, Dr. Gray stripped from some of these manias the Greek costumes in which they had posed and imposed, and left them in their naked deformity and moral depravity, as murder, arson, theft, and drunkenness. Under the nomenclature of moral insanity, a person may lie, steal, ravish, burn and kill, ad libitum, and go unwhipped of justice.

The doctrine once fully established and universally recognized, that

there can be no moral insanity independent of mental, a convenient cover for moral depravity will have been removed, and the administration of criminal justice relieved from much embarrassment.

Secondly, the Law:

When insanity is interposed as a defense, the court lays down the rule of criminal responsibility, and the jury pass upon the fact of insanity. In dealing with the issue a clear discrimination between. medical and legal insanity is of the first importance. A recognition of the doctrine that the presence of medical insanity is not of itself alone a valid excuse for crime will greatly narrow and simplify the question.

Establish a uniform rule touching legal responsibility, and so far as the administration of justice is concerned, it would matter little how wild the theories, or how fierce the conflict in the domain of medical insanity.

What is the true rule in respect to penal responsibility?

In 1843, the English House of Lords propounded certain questions on this point to the fifteen judges, and received in substance the following answer:

"The jury ought to be told in all cases that every man is presumed to be sanc, and to possess a sufficient degree of reason to be responsible for his crimes until the contrary be proved to their satisfaction; and that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party 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."

This rule, as an abstract proposition, is adopted by the English courts; but, like most common-law rules, it is flexible, susceptible of adaption to various circumstances, and the judges have been liberal in its administration. It is termed, in common parlance, the "right and wrong test," and is applied with greater or less strictness in many, perhaps a majority, of the American States.

Were this the only and the uniform test of responsibility, the issue of insanity would be comparatively simple. But it is held by high authority, and with much strength of reason, that the "right and wrong test" is not in all cases the only one by which penal insanity is to be tried.

It is claimed that the defense is sustained when, first, there was an insane delusion from which the crime emanated; and secondly, that when being insane the defendant was forced to the act by an irresist