# Popular Science Monthly/Volume 1/August 1872/Juries, Judges, and Insanity

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* JURIES, JUDGES, AND INSANITY.
By Dr. HENRY MAUDSLEY.
THE recent trials for murder, in which insanity has been alleged for the defence, whatever differences of opinion they may have given rise to, have clearly shown how entirely unfitted a common jury is to decide the delicate and difficult question of a prisoner's mental state. Had the wit of man been employed to devise a tribunal more unfitted for such a purpose, it might have exhausted itself in the vain attempt. It is one of the anomalies of British jurisprudence that while in an action for libel or any civil injury a special jury may be claimed, and the services of men who are above the lowest levels of ignorance and prejudice be thus obtained, it is quite otherwise when a person is on trial for his life. In this most momentous issue, however complicated the circumstances, however obscure the facts, he must stand the verdict of twelve common jurymen. In ordinary cases of murder, when the facts are such as any person of average sense and experience may judge of, the system works sufficiently well, or at any rate no great harm ensues; but, in any case in which it is necessary to form a judgment upon scientific data, a common jury is assuredly a singulary incompetent tribunal. The very terms of science they are ignorant of, and they either accept the data blindly on the authority of a skilled witness, or reject them blindly from the prejudice of ignorance. The former result is commonly what happens in regard to scientific evidence of poisoning; the latter is commonly what happens in regard to scientific evidence of insanity. There are few persons who, without having had a special chemical training, would venture to give an opinion on the value of the chemical evidence given in a case of poisoning, but everybody thinks himself competent to say when a man is mad; and, as the common opinion as to an insane person is that he is either a raging maniac or an idiot, it is no wonder that juries are prone to reject the theory of insanity which is propounded to them by medical men acquainted with its manifold varieties. It would seem to be an elementary principle of justice that a prisoner on trial for his life should have the right to claim a jury of men specially competent, or at any rate not absolutely incompetent, to judge of the facts on which his defence is to be based.
It is an additional evil of the present system that judges too often share the ignorance of juries, and surpass them in the arrogant presumption which springs from ignorance. Instead of urging them to throw off all prejudice, and aiding them with right information, they sometimes strengthen their prejudices by sneers at the medical evidence, and directly mislead them by laying down false doctrines. They may even go so far as to flatter them in the opinion that they, as ​men of common-sense, are quite as well able as medical men to say whether a person is insane or not. In the last number of this Journal we gave a report of a trial which took place in Scotland for the reduction of a will, in which the judge directed the jury, with the greatest assurance, that the symptoms which preceded insanity and indicated its approach, in an ordinary case, went on increasing as the disease advanced, and implied that, as they had not done so in the case in question, it was preposterous to allege insanity.
To our mind, the evidence of insanity in that case was conclusive, but at any rate the statement of the judge was utterly untrue, as a very little knowledge of insanity would have taught him; and we cannot help thinking that the authoritative enunciation of such false doctrine to a jury is nothing less than a judicial misdemeanor. One cannot justly complain that judges should be ignorant of insanity, seeing that only by long experience and study is a true knowledge of it to be acquired; but it is a fair ground of complaint that, being ignorant, they should speak as confidently and as foolishly as they sometimes do. Here, as in other scientific matters, it is not intuition, but experience, which giveth understanding.
Not only is it the fact that judges are ignorant, but they are too often hostile. Governed by the old and barbarous dictum that knowledge of right and wrong is the proper criterion of responsibility when insanity is alleged, they resent angrily the allegation of insanity in any case in which the person has not lost all knowledge of right and wrong. Believing that medical men are striving to snatch the accused person from their jurisdiction, they are jealous of interference, are eager to secure a conviction, and sometimes lose the impartiality becoming the judge in the zeal proper to the partisan. The reporters are happily good to them, in forbearing to report all they say and do, or we fear that the dignity of the bench would have suffered more in public estimation even than it has done of late years.
It is useless to say smooth things when things are not smooth. There is a direct conflict between medical knowledge and judge-made law, which must go on until bad law is superseded by just principles ​in harmony with the teachings of science. For many years, by all authorities on insanity, in season and out of season, the truth has been in vain proclaimed: many times have futile attempts been made to arouse attention to the iniquity of the law as laid down by the judges; but it is still necessary for us to go on protesting, as our forefathers did, and as our children's children may have to do. We may, at any rate, take leave to characterize the administration of the law on every occasion in the plain terms which it deserves. Under the name of justice, grievous injustice has sometimes been done, and it would be easy to point to more than one instance in which murder has been avenged by the judicial murder of an insane and irresponsible person. The saddest and most humiliating disease with which mankind is afflicted, and which should rightly make the sufferer an object of the deepest compassion, only avails in England in the nineteenth century to bring him, in the event of his doing violence, to the edge of the scaffold or over it. To this point have eighteen hundred and seventy-two years of Christianity brought us! And Science protests in vain! Without laying claim to much gift of prophecy, one may, perhaps, venture to predict that the time will come when the inhabitants of the earth will look back upon us with astonishment and horror, not otherwise than as we now look back upon the execution of old women for witchcraft in past times—a barbarity which the judges were the last to be willing to abandon, which they clung to long after it had been condemned by enlightened opinion. Indeed, there has not been, as Mr. Bright once said in the House of Commons, a single modification of the law in the direction of mercy and justice which has not been opposed by the judges!
The ground which medical men should firmly and consistently take in regard to insanity is, that it is a physical disease; that they alone are competent to decide upon its presence or absence; and that it is quite as absurd for lawyers or the general public to give their opinion on the subject in a doubtful case, as it would be for them to do so in a case of fever. For what can they know of its predisposing and exciting ​causes, its premonitory symptoms, its occasional sudden accession, its remissions and intermissions, its various phases of depression, excitement, or violence, its different symptoms and its probable termination? Only by careful observation of the disease can its real character be known, and its symptoms be rightly interpreted: from this firm base Medicine should refuse to be moved.
It is said sometimes, however, in vindication of the law, that it does not and cannot attempt to apportion exactly the individual responsibility, but that it looks to the great interests of society, and inflicts punishment in order to deter others from crime. The well-known writer, W. R. G., in a letter to the Pall Mall Gazette, has recently given forcible expression to this principle, and maintains that, if men would get a firm grasp of it, the conflicts which now occur would cease. He quotes with approbation the saying of the judge who, in sentencing a prisoner to death for sheep-stealing, said: "I do not sentence you to be hanged for stealing sheep, but I sentence you to be hanged in order that sheep may not be stolen." Here we see how entirely the writer has failed to grasp the real nature of insanity as a disease, for which the sufferer is not responsible, and which renders him irresponsible for what he does. "Were one-half the lunatic population of the country hanged, the spectacle would have no effect upon the insane person who cannot help doing what he does. If a boy in school were wilfully to pull faces and make strange antics, the master might justly punish him, and the punishment would probably deter other boys from following his example, but it would have no deterrent effect upon the unfortunate boy whose grimaces and antics were produced against his will by chorea. The one is a proper object of punishment; the other is a sad object of compassion, whom it would be a barbarous and cruel thing to punish. To execute a madman is no punishment to him, and no warning to other madmen, but a punishment to those who see in it, to use the words of Sir E. Coke, "a miserable spectacle, both against law, and of extreme inhumanity and cruelty, and which can be no example to others."
Moreover, it is not necessary to hang a lunatic in order to protect society, or in order to punish him, for it can protect itself sufficiently well by shutting him up in an asylum; and the prospect of being confined in a lunatic asylum is not one which is likely to encourage a man to do a murder; on the contrary, it is one which excites as much horror and antipathy in the minds of both sane and insane persons as can well be imagined.
And, finally, as the law did not prevent sheep-stealing by hanging sheep-stealers, but brought itself into discredit by offending the moral sense of mankind; so, likewise, it will not, by hanging madmen, prevent insane persons from doing murder, but must inevitably bring itself into contempt by offending the moral sense of mankind. Is not this result happening now? Has Mr. Baron Martin added any thing ​to the strength and dignity of the Bench by his conduct in the recent trial of Christiana Edmunds? That conduct has elicited such comments from all quarters as it has not often before happened in this country to find made on the administration of justice; and, if the law has not been brought into contempt, it has received a rude shock among a law-abiding people. The uncertainty which now exists, whether a person shall be convicted as a criminal or acquitted as insane, and the accidental character of the result, cannot fail to be injurious to the welfare of society. And if the present agitation subsides, as former agitations have subsided, without any step in advance being made, the bad law is none the less certainly doomed. As we have said on a former occasion, "men will go mad, and madmen will commit crimes, and in spite of prejudice, and in spite of clamor, Science will declare the truth. Juries, too, will now and then be found enlightened enough to appreciate it: and if the voice of Justice be unsuccessfully raised, it will be but a doubtful triumph for prejudice when Science shall say, 'You have hanged a madman.'"
It will not be of much use to point out once more, what has been pointed out over and over again, that the manner in which scientific evidence is procured and taken in courts of justice is very ill-fitted to elicit the truth and to further the ends of justice. One side procures its scientific witness, and the other side procures its scientific witness, each of whom is necessarily, though it may be involuntarily, biassed in favor of the side on which he is called to give evidence—biassed by his wishes, or interests, or passions, or pretensions. It is not in human nature entirely to escape some bias under such circumstances. In due course he is called into the witness-box and examined by those who only wish to elicit just as much as will serve their purpose; he is then cross-examined by those whose aim is to elicit something that will serve their purpose; and the end of the matter seldom is "the truth, the whole truth, and nothing but the truth." Having regard to the entire ignorance of scientific matters which counsel, jury, and judge show, it may be truly said that the present system of taking scientific evidence is as bad as it well can be, and that it completely fails in what should be its object—to elicit truth and to administer justice. "The incompetency of a court, as ordinarily constituted, is," as we have formerly said, "practically recognized in a class of cases known as Admiralty cases, where the judge is assisted by assessors of competent skill and knowledge in the technical matters under consideration. Moreover, by the 15th and 16th Vict., c. 80, s. 42, the Court of Chancery, or any judge thereof, is empowered, in such way as he may think fit, to obtain the assistance of accountants, merchants, engineers, actuaries, or other scientific persons, the better to enable such court or judge to determine any matter at issue in any cause or proceeding, and to act upon the certificate of such persons." The Lords Justices seldom, if ever, decide on a question of insanity without calling for a ​report upon the case from one of the Medical Visitors in Lunacy. If the English law were not more careful about property than about life, it would long ago have acted upon this principle in criminal trials.
However, he who advocates a reform in the legal proceedings of this country is assuredly a voice crying in the wilderness, and with less result than the Baptist had when he cried aloud there. It is not likely that any thing we can say will induce those who have the privilege or pain of constituting our government to leave for a time the ambitious struggles of politics, and to devote their energies to a reform of the law. And yet a government could not be better employed than in laboring to effect such a reform. A system of just laws and a simple and expeditious administration of justice would assuredly conduce more to the welfare of the community than years of parliamentary squabbles about politics. Many parliamentary questions which have occupied much time and made a great show in their day will look very small, if they are ever heard of at all, in history, while the reputations that grew out of them will have been lost in oblivion; but an effectual reform of the jurisprudence of the country, which is now an urgent need, would be a lasting benefit to the community, and an eternal honor to the statesman who initiated and carried it through.—Abstract from the Journal of Mental Science.
* ↑ Dr. Landor says: "If the principle that it is essential to institute a thorough examination of the individual's past and present condition before determining his state of mind is the right one, then the proceedings of lawyers are in complete antagonism to truth. There can be no conflict between propositions more complete. Medicine declares that insanity is a physical and corporeal disease; Law, that it is not. Medicine says that imbecility and insanity are different conditions; Law, that they are identical. Medicine asserts that a theoretical study of mental diseases and defects is necessary to a proper understanding of such diseases and defects; Law denies this, and says that insanity is a fact to be determined by any dozen of ordinary men, in consultation, on the case, selected at random from any class of the population. Medicine says that a man may be insane and irresponsible, and yet know right from wrong; Law says that a knowledge of right and wrong is the test both of soundness of mind and responsibility to the law. Medicine says restrain and cure the insane and imbecile sufferer. The object of the
* ↑ action of the law is punishment, and, if its severity is mitigated, it is not by the law, but by the suspension of the law, by authority above the law. The Law is thus entirely antagonistic to Medicine on all those questions of mental science which involve the freedom and well-being of the imbecile and the insane, and which often determine whether they shall be put to an ignominious death or not, whether they shall be deprived of their property or suffered to retain it. This antagonism is, therefore, a most serious matter to the insane, their friends and families, not less serious to judges and legislators, and of the deepest interest to both medical and legal professions. For with such opinions inculcated by the law, existing ignorances are more deeply rooted in the public mind, so that the difficulty in treating the insane by medical men, and in giving testimony in courts, is greatly increased, especially when great judges remark (influenced, no doubt, by the degrading exhibition of opposing bitterness of medical men in courts), that the introduction of medical opinions and theories on this subject has proceeded from the vicious principle of considering insanity a disease, whereas it is a fact to be ascertained by evidence, in like manner as any other fact, and no more is necessary than to try the question by proof of the habits, the demeanor, conversation, and acts of the alleged lunatic."