COPYRIGHT 1944
COLUMBIA UNIVERSITY PRESS

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Printed in the United States of America

GREGORY ZILBOORG

LEGAL ASPECTS OF PSYCHIATRY

THE history of the problems reviewed in this essay is old, and its psychological as well as cultural continuity has never been broken. History, despite its occasional apparently sudden mutations or silent stretches of seemingly sterile inactivity, never ceases; it never loses its cultural and ideological threads. They serve always as guides toward the understanding of the historical perspective. They tie our present to our past, and our past to our future.

That the relationship between the practice of psychiatry and the law of the land presents a number of features not found in the relationship of the law to any other medical specialty is self-evident. This has not always been so. Even as recently as a little over a century ago, the issues involved were still so confused that neither the jurist nor the psychiatrist was able to define with sufficient clarity either the points of convergence or the lines of divergence. The law was hardly aware that in matters involving abnormal mental conditions it had to consult a psychiatrist; the physician, in so far as he considered himself an expert on mental diseases (for the specialty of psychiatry had not yet been crystallized), began to be rather impatient with the law in so far as it affected situations in which questions of mental disease were involved. As the psychiatrist's knowledge of psychopathology increased, his restlessness grew and so did his need and desire for professional self-assertion. No sooner did medical psychology perceive itself as a budding, self-conscious medical specialty than it also found itself in conflict with the prevailing legal tradition. Psychiatry felt prompted to state its case, and to do so with a challenge and emphasis.

An exquisite example of the early psychiatrist's claiming the right to counsel the lawyer is the letter which Haslam addressed to the Lord Chancellor of England in 1823:

> The introduction of the term *unsoundness*, to denote a particular state of disordered mind, which is supposed to differ from idiotcy and lunacy, has been the source of considerable perplexity to medical practitioners; and, in my opinion, opens an avenue for ignorance and injustice. The application of figurative terms, especially when imposed under a loose analogy, and where they might be supplied by words of direct meaning, always tends to error and confusion....

> It now only remains to consider the last material sentence, delivered by your

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Lordship at this conference, and which to my limited comprehension, appears,
in the same breath, to affirm and deny the same position.

"The finding of him incapable of managing his own affairs, is not sufficient to authorize further proceedings, but there must be a finding that he is of unsound mind, and unable to manage his affairs:—incapacity to manage his affairs, being considered as evidence of unsound mind."

With the citation of this memorable sentence—unadulterated by any comment, I shall conclude this address to your Lordship, submitting at the same time my own impressions on the subject:—that, to search for its correct exposition is reverential to the law: to crave its elucidation from its exalted minister is an act of respectful deference:—this solicitude is increased from the consideration that the written opinion of the medical practitioner is deposed on oath, and that he is examined by the commissioners and jury under the same awful responsibility:— therefore, when the solemnity of that obligation is contemplated, the anxiety for accurate information will scarcely require an apology.¹

Haslam's plea is one of the earliest statements of the psychiatrist's grievance against the jurist's psychiatric contentions, yet it appears quite mature. It explicitly states to jurisprudence that there is a conflict, and a serious one; it does not shrink or veil the issue.

For this conflict to be so well defined, or so outspoken at any rate, some one hundred and twenty years ago, it must have existed for a long time before Haslam deemed it wise to write to the Lord Chancellor. It did, of course. For many centuries of medical history it had more and more persistently knocked at the heavy armor of tradition and prejudice, until that armor was finally corroded.

The history of this conflict between psychiatry and the law is long and dark and painful, and through great spans of time even tragic; it is not to be recounted here. What is to be established as a point for reflection is that the conflict *has* a history which was lived and written about and often dearly paid for by psychiatrists, who almost alone in medicine bore the brunt of the burden of growth and elucidation of the problems which are covered by the term, "medical jurisprudence of insanity."

Medical jurisprudence is traditionally dated from Paulus Zacchias (1584–1659), who is considered the father of this branch of medical knowledge. But in matters psychiatric Zacchias was rather backward. The legal problems arising in connection with abnormal mental conditions did

¹ John Haslam, *A Letter to the Right Honorable the Lord Chancellor on the Nature and Interpretation of Unsoundness of Mind and Imbecility of Intellect* (London, R. Hunter, 1823), pp. 9–10, 31–32.

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not seem to him of particular interest, and in so far as he did touch upon them he followed the traditional spirit of witch-hunting and witch-burning. Yet one of Zacchias' predecessors of almost a century earlier proved much more perspicacious and advanced. Cornelius Agrippa (1486–1535) may be rightly considered the founder of the medical jurisprudence of insanity; he established a revolutionary precedent when he, as both lawyer and physician, stood before the court of the city of Metz and raised his passionate voice against the condemnation of an aged woman who was haled to the bar as a criminal, a witch.

Agrippa was both a jurist and a medical man; consequently, his defense of a person on the grounds of insanity might in some measure be ascribed to his legal knowledge. But Agrippa's pupil Johan Weyer (1515–1588), who was a physician only, challenged the existing laws and defended the mentally ill in the name of psychological medicine only. He may be considered the first to have asserted that the opinion of the psychiatrist should in certain cases be considered more valid than that of the jurist. As a matter of fact, by word and action Weyer asserted even more; he challenged the very foundations of the penal code, and he claimed that many of the criminals of his time needed treatment and not punishment, care in a doctor's home and not disposal in a prison, on the gallows, or at the stake.² All this was four hundred years before William A. White and Bernard Glueck in America propounded similar ideas and, it must be admitted, with the same lack of success.

Weyer's claims were not met with favor; the lawgiver sharply denied him the right, as he denied any physician the right, to set his medical opinion above that of the law in matters of mental pathology in relation to crime. The Saxon Code of 1572 plainly counseled that Weyer's views be disregarded: "Weyer is not a lawyer, but a physician—consequently, his views on the relationship between mental disease and transgression of the written law are of no moment." The lawyer in private practice was even more harsh than some of the learned jurists who codified the penal laws of the time. Jean Bodin (1530–1596) was vituperative and venomous for fear that this first intrusion of psychiatry into the business of legal justice might let a host of responsible miscreants go unpunished, with all the dire consequences therefrom made inevitable.

It is easily seen that the conflict between law and psychiatry had reached

² For sources, cf. the writer's *History of Medical Psychology* (New York, W. W. Norton, 1941), pp. 206–235.

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a high degree of crystallization almost three hundred years before Haslam. Yet despite its obvious acuteness, the resolution of this conflict has not yet been achieved.

The voice of Weyer, while historically significant, was almost a lone voice. So was that of Jerome Cardan, who some years before Weyer suggested the concept of what we would call today "psychopathic personality," or "irresistible impulse." One of Cardan's sons did not get along with his wife, and he killed her; he paid the supreme penalty. Cardan proceeded then to argue that certain psychopathies should exempt one from legal responsibility.

All these sound psychiatric ideas, so old and yet so familiar to the contemporary psychiatrist and so much his own, clearly suggest that throughout the history of the specialty the psychiatrist has been striving through his special knowledge to gain and to convey enlightenment about the nature of human affairs, and to gain the right to change some of those written regulations whose adherents claim sole right to be the watchdogs and managers of these human affairs.

Since the psychiatrist asserts his ambitious claim not on the basis of some abstract principle but on the basis of actual, special knowledge which he possesses and which the jurist does not, the impression is not infrequently gained that the psychiatrist is more self-righteous than he has cause to be, and that the lawyer possesses more legal than moral and scientific right to assert his disregard of psychiatric knowledge. The atmosphere at the point of contact of these two branches of social endeavor is definitely charged with considerable dissension. This has been true for so many centuries that one is tempted to think of it as in the nature of things sanctified by tradition—and therefore inalienable. However, the development of both psychiatry and jurisprudence and their growing interrelation during the past century tend to confute one's momentary pessimism. The only true regret one would be justified in voicing, and this regret is general among contemporary psychiatrists, is that the evolution of the influence of psychiatry upon legal justice has been and is entirely too slow to be as beneficial as it could be. To the jurist the psychiatrist appears entirely too energetic in his invasion of the field of the law, and to the psychiatrist the jurist appears too complacent and too refractory to the wisdom and humanitarian aspirations which continue to grow with the growth of psychiatry.

Only a proper historical perspective will reduce the asperity of this

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relationship and make it more productive. This historical perspective would at once reveal to us that human affairs, whether in the atmosphere of mental health or mental disease, have always claimed the attention of both the jurist and the doctor. These affairs had to be managed, regulated, and otherwise ordered long before psychiatry was born, long before man had any conception that the human mind could become diseased and human behavior pathological as a result of this disease.

The lawyer came first; it was he, and not the physician, who had to manage the consequences of mental disease in so far as they affected the interests of the community. The lawyer then was the first who had to see to it that the psychotic disturber of peace be taken out of circulation, that the homicidal maniac (or criminal insane) be removed from the community and isolated somewhere, that property mismanaged or abandoned by a person mentally deranged be taken care of in some normal, legitimate way. In other words, all the problems which have preoccupied psychiatry ever since it was born existed to the full extent of their urgency before it was born. Attempts at their practical solution were made, precedents established, traditions developed, without benefit of any scientific, clinical psychopathology; the very possibility of the development of such a psychopathology could not even be fathomed many centuries ago.

The problems which we of today consider preëminently psychiatric had been imposing themselves on the community with the constant impact of repetitive demands for a solution. The problems themselves forced *ad hoc* measures; these in turn accumulated in number and were sanctified by current religious belief or superstition, by current morality and other cultural factors finally developing into that unwritten body of jurisprudence known as common law. When the psychiatrist came upon the scene of public life, he was confronted with this massive power of common law to which had been added centuries of spoken and written and codified principles elaborating or simplifying the older procedures.

From the standpoint of the general historical perspective, it is not difficult to see that the psychology of the relationship between the law and psychiatry has always been rather complex and not always conducive to serene and peaceful understanding. Two major characteristics inherent in the psychology of this relationship can be discerned.

The first is rooted in the fact that the psychiatrist is not only a psychiatrist but also a citizen of his community who, like the lawgiver or

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the law officer, is concerned with the proper protection of the common weal, and who is himself steeped in the traditions of this community with all its failings and prejudices and more positive trends.

The second feature of the psychiatrist's attitude which is psychologically inherent in the history of the problem is this: Inspired and armed with new knowledge, the psychiatrist becomes a humanitarian reformer and as such is always thrown into inevitable conflict with the old traditions of the law.

Therefore, depending upon circumstances, the psychiatrist is either a servant of the law, its loyal helper, or a rebel who wishes certain laws and legal practices abolished as useless and even injurious, offensive to psychiatric common sense and to the ultimate good of man and his community.

If we view the interrelations between psychiatry and the law from the standpoint of this their double aspect, considerable light may be shed on the true nature of the whole problem, and its history will become more intelligible. It would be a mistake, of course, to assume that these two aspects of the psychiatrist's attitude toward the laws regulating human affairs in so far as they touch the phenomenon of mental disease are clearly defined within psychiatry itself. The contrary is probably more true, or has been true for many years.

Instead of always clearly differentiating for himself the situations in which he was a servant of the law and those in which he challenged its psychological, humanitarian, and sociological validity, the psychiatrist, through his own experience and education, only gradually evolved his attitude. The true criterion of his scientific evolution is to be found only in the psychiatrist's attitude toward mental disease and the degree to which he is guided by the therapeutic intent, which is the essential characteristic and mainspring of all branches of medicine.

Let us take as an example the problem involved in determining the validity of a will when the testamentary capacity of a deceased testator is questioned. The court or the contesting sides dealing with the problem may call for an expert psychiatric opinion. The psychiatrist who undertakes to form an opinion in a case of this nature will appear in court not as a physician, not to help to cure someone or to prevent someone from contracting an illness, but as a citizen who possesses certain special knowledge which the law does not possess but which the law is willing to buy and to use. The psychiatrist testifying in such a case is then merely a

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skilled worker, a technician like an engineer, chemist, or electrician. His interest in the case may be enhanced consciously or unconsciously by his civic aspiration to see no one's property foolishly squandered or unjustly distributed. He may also be motivated by pride in his science and profession and a wish to correct certain naïve misconceptions which the law has about mental disease.

However, in the last analysis all the above-mentioned motivations are but coincidental and secondary. The psychiatrist in such a case is at best a skilled worker making an honest living, and at worst the willing servant of a law which is after all protecting certain fundamental, ethical principles dealing with property rights. There is no conflict between the law and psychiatry here. These two agencies meeting before the bar treat one another with cooperative respect—in principle at least.

On the other hand, when in the opinion of a psychiatrist a given individual should be placed under psychiatric surveillance and treatment in a hospital and when the law through prosecuting attorney, court, and jury happens to dissent, there is a serious conflict. The psychiatrist is convinced that he is right; his knowledge and his experience support his conviction with all the force of fact. Yet he has no power whatsoever. The law on the other hand may be wrong both scientifically and empirically, as it frequently is; yet it possesses all the power to act as it deems necessary.

That the answer to the question as to the presence and degree of mental disease should at all be entrusted to the law or to an impaneled group of uninitiated laymen does in itself appear to be thoroughly illogical to the contemporary psychiatric mind. Yet the principle is still valid today in certain states of the Union (Illinois, for instance, among others); the law has still the right through some of its agencies alone to determine what amounts to a diagnosis of mental disease. The psychiatrist in such cases, although the sole scientific authority on the subject, is considered only one of the witnesses—that is, a servant of the apparatus of the law, whose judgment and service may or may not be disregarded. If they are disregarded, no legal principle will be violated thereby.

It is obvious that the psychiatrist as a citizen and as a doctor who wished to help and treat a given patient might find himself in sharp conflict with the prevailing views of the community and the law in such matters. The psychiatrist might insist that the community be protected and the individual in question be committed to a hospital, that the patient should be

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protected and cured and for this reason should be committed to a hospital. But the law, which for so many centuries functioned in such matters without benefit of psychiatric knowledge, naturally at first looked with considerable suspicion upon those who intruded into the domain of its prerogatives, and the resulting conflict seemed insolvable.

That this conflict did not actually prove insolvable is common knowledge; the history of the development of our laws of commitment bears ample testimony to this fact. As is well known, after a comparatively short period both the demands of clinical psychiatry and those of the law evolved a series of adjustments of their various differences—in a manner on the whole rather satisfactory. The psychiatrist came to be treated by the community and by the law as an experienced, expedient, and judicious servant of the law and the common weal.

But here the rather serene adjustment of differences seems to end. When the problem of mental disease as related to crime, particularly capital crime, arises, the law appears irreconcilable. It insists that it is the only authority to pass on and to define what insanity and its relation to man's responsibility before the law are. And the psychiatrist, even like Weyer almost four hundred years ago, voices the claim to be sole scientific authority in defining and diagnosing mental disease, and further insists that the law is in no position to make any diagnosis and possesses no scientific right to function on the basis of a psychopathology of its own creation.

The history of this conflict is the history of the medical jurisprudence of insanity, for it is around this conflict that we find all the constellations of psychological, scientific, sociological, and cultural contradictions which have accumulated through the ages of human social life, all the isomeres of prejudice and bigotry and hate which are brought into play when man becomes a felon, and finally all the anxiety which society experiences when scientific knowledge calls upon man to be objective in the face of the most destructive aspects of human nature. Society seems to be afraid even to forgive a sin, particularly when science declines to accuse.

One hundred years ago, at the time the Original Thirteen® foregathered to find what later became the American Psychiatric Association, the problems just sketched above stood out almost as prominently as they do today, and in some respects with equal acuteness. The psychological and scientific trends involved in the consideration of these problems de-

ª See Dr. Overholser's chapter in this volume.

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lineated themselves from the outset; medical jurisprudence of insanity was one of the important topics at the first scientific meeting of the Association of Medical Superintendents of American Institutions for the Insane. The young but already authoritative figure of Isaac Ray stood out as the first progressive, combative, and yet very dignified dissenter from the ancient traditions which still prevailed in the law books, at the bar, and among the pioneer psychiatrists themselves. Isaac Ray's voice was to be heard with particular incisiveness for almost forty years to come.

The first volume of the *American Journal of Insanity* published a serious paper on the subject of medical jurisprudence of insanity—from the pen of Dr. C. B. Coventry, "Professor of Medical Jurisprudence in the Medical Institution of Geneva College."⁴ Here Dr. Coventry gives, for the first time in an American medical publication, I believe, the answers of the fifteen English judges to the questions addressed to them by the House of Lords in connection with the McNaghten case. Dr. Coventry discusses briefly but pointedly the question of moral insanity, which he apparently understood primarily as the presence of an irresistible impulse, and is obviously regretful that the fifteen English jurists failed to take into consideration the existence of moral insanity. He even mentions some specific odor which insane persons allegedly emanate, possible sleep disturbances, and initial changes in the pulse rate as signs of mental disease—as if to say that the answers in the McNaghten case failed to consider certain essential aspects of mental disease and disregarded the fundamental principles of clinical psychiatry.

The jurists of McNaghten fame established a set of legal principles and criteria. They seem to have conceived of insanity as a mental category, as a certain definite state; that it was a disease was perhaps implied but not properly emphasized—for the legal mind is not wont to think in terms of pathology. It was the physician's task to emphasize the pathological aspects of insanity in relation to crime; morbid in the legal or lay sense might well mean not more than bad, or depraved, but in the medical sense it had but one meaning—that of disease. That is why even some of the seemingly naïve references to an alleged specific odor of the insane, their pulse rate, or rate of sleep are significant as accentuating the idea of disease, treatment, and cure, and not depravity, arrest, and punishment. Testifying in a case of murder at approximately the time Coventry was composing his paper, Isaac Ray, then superintendent of

⁴ Am. J. Insanity, I (1844-45), 134-144.

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the Maine State Hospital, agreed with the testimony of Drs. Bell and Woodward, who considered the defendant insane, and added: "In regard to the physical symptoms, I should say that these showed that something was the matter with the man. The state of his pulse, his coated tongue, and shrunken features, plainly showed that he was diseased in some way."*

Whatever the differences in medico-legal orientation which existed among the American psychiatrists of 1844—and differences there were, of course—there was general agreement as to the importance of stressing before the court that an insane defendant is a sick man—an assertion which in those days, strange as it may seem, appeared to the American jurist much less contentious and censorious than it appears to many representatives of the law today. One may even say that at the beginning—that is, at the time the thirteen medical superintendents through the founding of their association made the first official step in America to establish psychiatry as a separate medical specialty—the law and the newly born specialty treated one another with considerable respect and with harmonious recognition of scientific authority. The heat of reciprocal fault-finding so frequent in our courts of today and so familiar to psychiatrists who appear as expert witnesses seems to be a much later development. The psychiatrist was not at first inclined to challenge the lawyer's psychiatry, nor did the court seem inclined to question too much the psychiatrist's motives. The abstract, non-clinical if not anti-clinical sophistry of "the McNaghten rule" was but one year old; it had not yet taken hold on the minds of those American jurists who were later to embody this rule in the penal codes of the majority of, if not all, the states.

Samuel Woodward, the first president of the Association, published an essay in the first issue of the *Journal* on the "Homicidal Impulse,"* which he described with quiet detachment rather than with the feeling that he had to defend his point of view against its anticipated rejection by legal authorities. In the case of Rogers, who had killed a prison war-den, Woodward appeared as an expert witness and testified to the effect that the murder was committed under the influence of an irresistible im-pulse.' Instead of being challenged he was upheld by the court, which

* *Ibid.*, p. 268.

* *Ibid.*, pp. 323-326.

† *Ibid.*, p. 267.

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agreed that such an impulse does exist, that its presence is a sign of insanity, and that it therefore constitutes a bar to punishment.

The editors of the *Journal* defended their clinical and scientific position in relation to the criminal law with apparent serenity and comfort; the views of some of their contemporary English brethren they found unnecessarily harsh and therefore unacceptable. Commenting on Taylor's *Manual of Medical Jurisprudence*, which had appeared in 1844, the editors took the author to task for devoting but a few pages to the problem of insanity. They disagreed with much of the little Taylor had to say on the subject, and particularly with his contention that "the defense of insanity is carried too far." "We," said the *Journal* editorially, "rather adhere to the opinion of Georget, Marc, Prichard, and others, who have devoted their lives to the study of Insanity, that the plea is not so often successfully made, as it ought to be, and that many deplorable madmen have perished on the scaffold."*

And speaking on Thomas Coutts Morrison's essay *On the Distinction between Crime and Insanity*, which was awarded a premium of twenty guineas by the (English) Society for Improving the Condition of the Insane, the *Journal's* reviewer is quite complimentary: "The author next treats of insanity without delusion, or without the intellect being affected. Such a form of madness he believes to exist, and complains of the defect of the law in not recognizing it." The reviewer further picks out certain lines, prefacing them by saying that "the following is a fair hit at the law's infallibility": "'If we go into any of our courts of law where a case of lunacy is pending, we find that the law, as laid down by Hale and others, is quoted as infallible; were a case of juggling imposture brought before the same court, would the same reliance be placed upon Hale's opinions respecting witchcraft?'"*

The psychiatrist of 1844 had not set aside his critical attitude toward the superannuated traditions of the law which had lost their meaning in the light of scientific progress, but at the same time he was not yet fully aware of his conflict with some of the tenacity of legal tradition. Coventry's essay is illustrative and characteristic of this spirit of confidence with which the psychiatrist of one hundred years ago stepped on the new platform of his specialty and beckoned to the law for coöoperation. Coventry was fully aware that "notwithstanding all the tact and all the sagacity

* *Ibid.*, p. 282.

† *Ibid.*, pp. 372-373.

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and all the learning of the legal profession, the jurisprudence of Insanity remains in the present day about where it was left by Blackstone and Lord Coke"¹⁹—and we may add for our part that the views of Blackstone respecting insanity and crime reflected but the views of Lord Hale, the learned and harsh jurist of the seventeenth century.

Coventry goes on to remind us that the law would not arraign a man for a capital offense, if he became insane; it would not try him, if he lost his senses before trial; it would not sentence him, if he lost his mind before sentence was to be pronounced; it would stay punishment, if a previously sane criminal became insane before the punishment could be carried out. "These provisions of the law," remarks Coventry with obvious satisfaction, "are certainly very merciful, and founded upon the principle on which all penal laws should be founded, viz.: that of preventing crime, not of vengeance by way of retaliation on the person of the criminal."¹⁹ This last remark may well appear to a contemporary psychiatrist rather premature and complacent. William A. White's views asserting just the contrary and voiced some eighty years later²⁰ would seem to confute Dr. Coventry's benevolent confidence in the psychology of the criminal law.

In the light of what we have learned since the days of Dr. Coventry, it is certainly difficult to overlook the trends of vengeance and retaliation underlying the system of legal punishment. It is difficult to suppose that a law demanding that a condemned man awaiting execution must first gain his senses fully before he is led to the electric chair or scaffold is motivated by humane, merciful considerations.

It was not lack of psychological insight or want of cultural attainment that made the psychiatrist of 1844, so well exemplified in the person of Coventry, overlook the motif of revenge in the criminal law. There is little doubt that he fully understood that the law always wished to exact the maximum penalty. The psychiatrist agreed therefore that the machinery of carrying out justice should wait until the accused regained his senses, so that not only would he be able to defend himself at his trial but also, when in full possession of his senses, he would be able to experience the full weight of anguish in meeting his legal annihilation. For in those days, as in so many quarters even today, the belief was widespread that

¹⁹ *Ibid.*, p. 134.

¹¹ *Ibid.*, p. 135.

¹² William A. White, *Insanity and the Criminal Law* (New York, Macmillan, 1923).

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suffering is a deterrent of crime. That the execution of the criminal certainly does not serve the goal of prevention of crime as far as the executed criminal is concerned, and that therefore it makes no difference whether the condemned is sane or insane when he is marched to the gallows, was a thought as yet not fathomed by the citizen of the first half of the nineteenth century. That it might perhaps be even more merciful to execute the criminal while his senses were lost, since in that state he might suffer much less the agony of being legally murdered, would have appeared a preposterous thought to the psychiatric contemporaries of Dr. Coventry. At that time, when American psychiatry was being officially born as a specialty, the old, sentimentalized, legal vengeance and the new humanitarianism of a new medical discipline were still blended into one stream of thought—as clear in its humanitarian aspiration as it was as yet unclear in its rational, scientific basis for a psychological sociology and penology.

What marks the period of psychiatric beginnings is the spirit of cooperative respect between psychiatry and the law as it stood and grew in the ancient soil of tradition. It may not have been universal but it was widespread, this spirit of cooperation which was not erring. Authoritative quarters of the law reciprocated. Chief Justice Shaw of the Commonwealth of Massachusetts, in charging the jury in the above-mentioned case of Rogers, described "the irresistible and uncontrollable impulse" in terms of good understanding. This impulse, once its presence was established in a given case, exempted the defendant from responsibility. As to expert testimony, which in the Rogers case was presented by three of the Original Thirteen (Woodward, Bell, and Ray), one of whom was the first president of the Association, Justice Shaw had this to say to the jury: "The opinions of professional men on a question of this description are competent evidence, and in many cases are entitled to great consideration and respect. The rule of the law, on which this proof of the opinion of witnesses, who know nothing of the actual facts of the case, is founded, is not peculiar to medical testimony, but is a general rule, applicable to all cases, when the question is one depending on skill and science, in any peculiar department."¹⁹

Thus an enlightened judge of one hundred years ago. The impasioned objections which psychiatry later raised against the hypothetical question (William A. White poignantly called it a monstrosity) and the welter of logical and psychological difficulties with which this question

¹³ *Am. J. Insanity*, I (1844-45), 270.

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has become entangled would certainly have never arisen had legal practice and procedure followed the penetrating foresight of Justice Shaw.

Shaw was not alone in propounding the basic medico-legal principles of the theory of the irresistible impulse; Judge Gibson in Pennsylvania, Judge Edmonds of New Jersey, and a few others followed the same trend in their charges to juries or in their decisions.

The remarkable contrast between the cooperative understanding as reflected in Justice Shaw's charge to the jury in the Rogers' case, and the subsequent acrimony, suspicion, and legalistic confusion which have developed in the course of the past century around the problem of crime and insanity is not easy to explain. In England at this period passions had been running high in connection with the same problem. The legal profession there was as conservative on the subject as it is today (we may count Erskine of some half century before that time as an exception). Tradition clung to Lord Hale's ancient views and resisted any medicopsychological innovations. English common law was the foundation of the American law, but the written laws or verbal legal discussions dealing with such special issues as insanity in relation to crime were of comparatively late origin. These did not even begin to become crystallized in England until the latter part of the seventeenth century, when Hale's *Pleas of the Crown* laid the foundation of most of what Blackstone found to say on the subject under discussion. A considerable amount of psychological and sociological independence on the part of the early settlers made it possible for the American attitude to develop gradually, without the heavy load of Hale's tradition affecting it too much. Why American jurisprudence respecting insanity in its relation to crime should in later years have recaptured the Hale, Blackstone, and Coke backward tradition is difficult to tell and is a question beyond the scope of this essay.

There is no doubt that the American founders of the specialty of psychiatry were ready to adopt every liberal thought which came from Europe touching the subject under discussion, and they were rather refractory to and suspicious of the older trends which sprang from Lord Hale. They read and admired Esquirol; the brilliant young Georget, who died too soon but who left a medico-legal heritage not to be forgotten; and last but not least Prichard, who in 1835 published *A Treatise on Insanity and Other Disorders Affecting the Mind*. It was in this treatise that Prichard first introduced the concept of moral insanity.

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In those days the opinions of legal authorities on insanity apparently did not carry so much weight in America as they did in England.

To return for one more moment to Coventry's article, the first on the subject of medical jurisprudence of insanity to appear after the founding of the Association of Medical Superintendents of the American Institutions for the Insane, we may note that Coventry classified "the forms in which insanity becomes the subject of legal investigation" as follows:

1. The plea of insanity as a bar to punishment in criminal prosecution.

2. The propriety of confinement when danger to the individual himself or to others is apprehended.

3. The capacity and right of an insane person, or one supposed to be insane, of managing his own affairs.

4. The state of mind necessary to constitute a valid will.

Coventry's principle of classification is obviously sound; it well stood the test of time and will be adopted here. However, the order in which Coventry placed the problems, which is again very sound since it follows the order of diminishing complexity and seriousness of the problem, will be here reversed. This will simplify the presentation which follows and will bring the first things last without prejudice to their importance.

Our order therefore will be this:

1. Problems of testamentary capacity

2. Problems of managing one's own affairs

3. Problems of commitment

4. Criminological problems.

The above sequence will at a glance reveal that the first two rubrics represent psychiatric problems only indirectly, or technically if you will. For if a person is of unsound mind and if this unsoundness of mind makes his last will and testament of questionable validity, or if he enters contractual obligations which he would not have entered if he had been in full possession of his senses, it is the law that is primarily concerned in rectifying the wrong which might ensue as a result of these acts. The psychiatrist, as a physician whose job it is to treat or to prevent mental illness, is not at all concerned with the ensuing wrong or the legal validity of the acts of a person already dead, or of a person living but not under the care of a psychiatrist. The concern of the psychiatrist with testamentary or contractual capacity is limited by the eventuality of a law suit; the contending parties or the court might then, as they frequently do, invite the

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psychiatrist as a skilled worker, an expert technician who becomes an added tool in the machinery of the administration of the law. Moreover, the problems involved in such cases are problems of property—property distribution and property rights. In other words, they are economic problems characteristic of a civilization the cornerstones of which are property rights—their acquisition, retention, and possible loss under certain properly defined circumstances.

In such cases we deal not with legal aspects of psychiatry in the strict sense of the term but with psychiatric, technical adjuvants to the administration of the law. As civilization progresses and our technology develops, the law utilizes our technological progress and seeks to put it at the service of administering the law, with the added refinement which the newer techniques afford. In other words, in a review of the legal aspects of psychiatry one might pass over the problems of testamentary or contractual capacity without any injury done to psychiatry in its relation to the law. However, from the point of view of the history of our specialty, these matters deserve more than passing mention. The founders of the Association, as proselytes and zealots in a new field, from the very outset sought to assert the validity of their new-born science as well as to test its ingenuity and perspicacity in every possible walk of life or aspect of human relations. The founders of the Association were broad in their outlook and generous in their interests; they also felt that their concern as psychiatrists was humanitarian in relation to the mentally sick as well as to society and to the healthy who happened to suffer spiritually or materially from the mental sickness of others.

As the reviewer of several treatises on medical jurisprudence put it in 1845: "The living, in some cases, should be regarded with as much justice as the last wishes of the dead."¹⁴

There was another reason for this interest in the purely legal problem of the "responsibility of the insane for civil acts." The budding specialty of psychiatry was early awakened to study with critical curiosity the double standard inherent in the law's treatment of insanity. It was quick to discover and as quick to question whether it is sound to admit, as the law does, the existence of two insanities, one recognized by the civil, the other by the penal code. Reviewing the case of a contested will in the State of Maryland, the *Journal of Insanity* cited the June, 1853, issue of the *United States Monthly Law Magazine* and recapitulated the major

¹⁴ Am. J. Insanity, II (1845-46), 88.

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points in the case of Townshend vs. Townshend. "The principal issue in this case, was whether John Townshend deceased, was at the time of signing his will, of sound mind and capable of making it." John Townshend had claimed that "he had frequent personal interviews and conversations with God Almighty, and was accustomed to receive immediately from God, directions, instructions and commands, in relation to what he should do, and what he should not do. . . We do not care to mention the blasphemies cited in the other specifications, and will only add that it was proved, that Townshend stated that God had repeatedly commanded him to set all his negroes free and give them all his property—that of the will now in dispute, he had said, it was not his own will, but God's will, etc."¹⁵

The decision of the jury was in favor of the will, and on appeal this decision was sustained. Commented the *Journal*: "With all due humility, we ask this question: If whether John Townshend had killed a person, his *sanity*, would with the above testimony, have ever been acknowledged? Certainly not. And here, as we have elsewhere remarked, there is a remarkable distinction taken between civil and criminal cases in this respect. Still the decision is usually with juries, and of course we can only anticipate a continuance of the diversity.

"There is, however, one point in the biography of Townshend which, in a measure, reconciles us to the verdict. His insanity appears to have been *all talk*, and *no action*. Even his negroes he does not appear to have emancipated."¹⁶

The founders of the Association showed considerable and active interest in the psychiatric aspects of testamentary problems, and they crossed swords on occasion in court. In the famous case of Oliver Smith's will, Brigham testified that the late testator was sane, while Woodward testified that Oliver Smith was insane at the time he wrote his will. Isaac Ray and Luther Bell concurred with Woodward.

"Insanity considered in its civil relations" was a topic of great interest. The views of M. Sacase, Counsellor of the Court of Appeals at Amiens, were published in the French journal *Législation et Jurisprudence* in 1851, and the editor of the *Journal of Insanity* thought well enough of them to publish a detailed abstract for the benefit of American psychiatrists in the January issue of 1854."

¹⁵ *Ibid.*, X (1853-54), 181-182.

¹⁶ *Ibid.*, p. 183.

¹⁷ *Ibid.*, pp. 276-280.

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The leading spirit who kept up this interest in "insanity in its civil relations" was, of course, Isaac Ray, the American pioneer and scholarly thinker in the field of medical jurisprudence of insanity.

Ray was hardly thirty years old when he had fully mastered the subject in all its aspects, historical, philosophical, clinical, legal, and humanitarian; he gave expression to his vast knowledge and humanitarian aspirations in his *Medical Jurisprudence of Insanity*, published in 1838, the first book of its kind in America.

The problem of testamentary capacity seems to have been one of Ray's favorite subjects. He testified in a number of law suits in which wills were contested, and he wrote on the subject. In 1863 he published an exhaustive report of "The Angell Will Case" covering more than forty pages.¹⁸ In a sense we may consider these litigations involving a contest about a will as the first detailed socio-psychiatric case histories; perhaps it is this feature that attracted men like Ray and his colleagues. We find in "The Angell Will Case" the following:

> In the litigation of a will, a wider range of inquiry is opened, a larger variety of relations is exposed, than is permitted or required in that of a crime or a contract. The investigation may extend over a life-time, and be pushed into the inmost recesses of the inner life. In no class of cases is there more needed a familiar acquaintance with the operations of the mind, sound as well as unsound, in order to reconcile seeming discrepancies of testimony, an extensive observation, to show the full significance of many a trait, and the tact, springing from long experience and sagacity, that can enable one to appreciate the nicer affections of mental competence that result from cerebral disturbance.

Thus, what would first appear to be an interest dictated by more or less academic curiosity seems to have been a genuine conviction that "litigations of will" were a field of fruitful psychiatric investigation, a source for study of normal and abnormal psychology in its purely clinical, social, and cultural aspects. Some half century later psychiatry found in the general field of neuroses and schizophrenia what Ray and many of his colleagues sought and thought to have found in part in the study of testamentary problems.

As time went on this problem seems to have receded as one of the major points of psychiatric interest—at least in so far as it was reflected in the literature of the period. But psychiatry still paid considerable atten-

¹⁸ *Ibid.*, XX (1863-64), 144-186.

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tion to the problem as late as the beginning of the last quarter of the nineteenth century. This fact is reflected in the papers read before the Medico-Legal Society of New York, among which Isaac Ray's paper on testamentary capacity (1877) occupies an honorable place. In this paper Ray reviewed the chief varieties of mental disease, made a brief historical excursion in which he called attention to the legal tradition of relying on the superannuated psychopathology of Coke and Hale, reminded us that old age is not necessarily senility, and recalled the poet Waller's lines:

> The soul's dark cottage, battered and decayed,
> Lets in new light through chinks which time has made.

Ray called for greater respect for clinical psychiatry in place of the aged legalistic technicalities. He lamented "the disposition to form positive conclusions on the strength of a partial, one-sided observation," and concluded his paper by saying: "In presenting the subject of testamentary capacity in the way I have, it was for the purpose of giving to the pathological element the prominence it rightfully deserves, and which consequently ought to secure it a controlling influence in disputed cases. And let me say, in conclusion, that the administration of justice in this particular must often be imperfect, until the light of medical science is freely admitted and used,—not the light that has travelled down to us from the times of Coke and Hale, but that which we owe to the progress of knowledge during the present century—greater, far greater, indeed, than that of all centuries together."¹⁹

The exalted note with which Isaac Ray finished the reading of his paper is very significant. He was not alone, of course, in his enthusiasm and faith in psychiatry. All his colleagues shared and contributed to it, and all were preëminently concerned with everything that had a bearing on man's behavior at home, in his society, in his culture, and in his prison. But the paramount interest of the early psychiatrists was clinical; this clinical interest stood out despite the fact that they were very busy men whose time was absorbed with problems of hospital administration, hospital building, labor shortages, ventilation, dietetics, and heating. As I have said, it was this clinical interest that psychiatrists sought to satisfy in dealing with certain aspects of the civil law. Mental disease occupied a very inconspicuous place in civil law; or, to be more exact, questions

¹⁹ *Papers Read before the Medico-Legal Society of New York, 1875-1878* (New York, the Medico-Legal Society, 1886), pp. 422-440.

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of mental disease were not yet considered by the civil codes as questions which only a specialist in mental diseases was qualified to answer. Consequently, the American psychiatrist of one hundred or of seventy-five years ago sought not only to further his clinical knowledge but to assert his clinical authority as a specialist wherever it was neglected, disregarded, or otherwise treated with disrespect. In attempting to achieve this goal, the early psychiatrist always tended to correlate his clinical studies with those opinions which the law had held for many generations. As we shall presently see, the psychiatrist himself had not attained that degree of scientific yet profoundly humanitarian objectivity which alone would hold out good promise for the attainment of his goal. In such problems as crime and punishment he found himself frequently too much a child of his age to stand before the court of law without bowing almost unquestioningly to some of the legal metaphysics. But in such matters as testamentary litigations the psychiatrist found it less difficult to be objective, detached, the pure clinician.

He was therefore able to call the attention of the specialist in medical jurisprudence to the fact that he, the psychiatrist, was—not more just, not more honest than the legal authority—but more learned in the subject of mental disease. A typical example:

When Dr. John J. Reese, professor of medical jurisprudence and toxicology in the University of Pennsylvania, issued his *Text-Book of Medical Jurisprudence and Toxicology*, the *Journal of Insanity* observed among other things:

> When on the subject of testamentary capacity, Dr. Reese is emphatic in his opinion that a will made by a person suffering from typhoid fever should be held valid "provided he was not delirious at the time." Herein we must join issue with the author. In the last number of this *Journal*, Dr. Chapin, in an article on the "Mental Capacity in Certain States of Typhoid Fever," shows conclusively, to our mind, that even in the absence of delirium a typhoid patient may make a will of which he has no subsequent recollection, and in a manner, moreover, at total variance with his wishes on recovery.⁵⁰

The psychiatrist's serene coöoperation with the law as it stood was unfortunately limited to the field of the rather neutral subject just reviewed. Very soon in his career as the medical officer on whose shoulders weighed the responsibility for the great class of the underprivileged called lunatics, or insane, the psychiatrist found himself in a position less peaceful. When

⁵⁰ Am. J. Insanity, XLI (1884-85). 353-354.

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he was consulted on the mental state of someone who had made a contract or a will, he was able to express his opinion and to retire to his daily task of caring for the sick, without much concern as to the consequences to the contested contract or will in question. But when he was confronted with the problems involved in the curative control and management of his patients, or as Dr. Coventry put it "the propriety of confinement when danger to the individual himself or to others is apprehended," the psychiatrist at once found himself confronted with and involved in a number of conflicts.

There was the old tradition of treating the mentally ill, particularly the improvident, as criminals, which had to be combated and radically changed. There was the question as to who should be the final authority to decide whether an individual was sane or insane and, if insane, whether he was to be confined to an appropriate institution. This authority had to be decided upon and legally established, and the psychiatrist, the superintendent of the institution, was not always looked upon with favor or without suspicion by the law or by society. There was the great question of individual liberty, the constitutional rights of every citizen whether healthy or ill, sane or insane. The law—so charitable to the insane in many civil cases, and always so mindful of the good and safety of the community as a whole and of its individual members—was suspicious of the new specialty. It seemed to prefer, at least at first, to trust the layman—as represented by the overseer of the poor, the sheriff, the justice of the peace, or the twelve men comprising the jury—to pass upon the medico-psychological problems involved.

Matters were made more difficult for the psychiatrist by the fact that the public, for generations so neglectful and even contemptuous of the insane in the community, the public which has always been afraid of the mentally ill and has tolerated their imprisonment, their auctioning-off, and their suffering of many other indignities, the public too found itself suspicious of the very institutions which were created to house and to treat the mentally ill. The public seems to have discovered what the medical profession had tried to teach it for centuries, that the mentally ill are human beings who have rights and to whom the community and the medical profession have an obligation. This discovery led to a paradoxical suspicion of the asylums, which were considered places for incarceration, even as the ancient dungeons and later jails were.

All these contradictions, conflicts, currents, and countercurrents of

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social emotions in relation to the mentally ill gave the head of the mental institution and his assistants deep concern; they stood always in the very midst of the stream of various conflicts theoretical and practical. At first there was no psychiatry outside institutional psychiatry, and therefore there were no psychiatrists outside the superintendents and their medical staffs. These from the very outset had to shoulder the burden of adjusting the relationship of custodial and curative psychiatry to the law. The need for such a relationship is peculiar only to this branch of medicine. The surgeon is never called upon by the law to comply with special procedures before he straps an anesthetized patient to the operating table, nor does the internist have to consult the legal authorities and obtain permission each time he would administer a strong hypnotic medicament or stimulant. The psychiatrist, however, because of the singular nature of mental disease, cannot even start restraining the free movements of the psychotic without due process. This is as it should be, but it also creates a special set of problems totally foreign to medicine and surgery.

This is why the problem of committing patients to institutions is so vital, and this is why the history of this problem is so intimately woven into the history of psychiatry. "The propriety of confinement" is a question which must be solved and decided upon before any intramural treatment can be instituted. The century that lies behind us has witnessed immense changes in the factual and procedural status of this problem. These changes were not always easy, and they were frequently accompanied by stormy conflicts, unreasonable attacks on the psychiatric profession, and political abuse on the part of some agencies of the government, which under unwise administrators and with the weight of formal authority impeded the progress of psychiatric administration in many parts of the country.

Linked with this problem of "propriety of confinement" were naturally a variety of issues of great civic and administrative importance, such as public or governmental supervisory control of the hospitals for the mentally ill, the propriety of restraint, the relationship of the medical to the civil authorities, and so forth. Many of the problems and issues involved have become more or less common knowledge, and it is unnecessary to reiterate these facts which were so clearly and so ably presented recently by Albert Deutsch in his *Mentally Ill in America*, and some twenty years before Deutsch in the exhaustive compilation, *The Institu-

CHARLES H. STEDMAN

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tional Care of the Insane in the United States and Canada, which was painstakingly edited by Dr. Henry M. Hurd. The reader is counseled to peruse these two classics for particular details. Here only certain highlights of the developmental trends of the problems involved are to be briefly considered.

When our minds are turned toward pondering the development of the status of the mentally ill, we are wont to contemplate the past and to reassert that it was very bad. Bad it was, but if we are to consider any phenomenon of the remote past from the point of view of its humanitarian value as we understand this value today, we must also consider the whole cultural atmosphere and *niveau* of the section of the past under consideration, and thus establish a proper historical perspective. In the light of this perspective—we know that at the time the medical profession itself was neither properly organized, nor adequately aware of its task regarding the mentally ill—it is understandable that the community could perceive in the insane only a disturbing element, a phenomenon injurious to the peace of mind of the average citizen and to the orderly quiet and security of the community. No wonder then that the law passed by the Commonwealth of Massachusetts in 1797 dealing with the apprehension and disposal of the insane was entitled, "An act for suppressing Rogues, Vagabonds, Common Beggars, and other idle and lewd Persons."

The short half century that lay between the enactment of this law and the founding of the Association of Medical Superintendents was marked by considerable intellectual, cultural, and scientific advance. A number of hospitals for the mentally ill were founded, particularly in the thirties and early forties of the nineteenth century, and the insane were unevenly strewn in hospitals, almshouses, and penal institutions throughout the country.²¹ There was no uniformity of principle in this distribution, and less justice. For decades, the cumulative emotions of the public against the abuses with which the insane had been treated for generations turned against the hospitals themselves, and as late as the early 1880s the hospitals were still the butt of suspicion and abuse. The public as well as the courts was well aware of the confusion, and the circumstances themselves pushed events toward a solution.

The *Philadelphia Medical Times* of July first, 1882, expressed in vivid language the mood of certain sections of the public and all their mis-

²¹ See Dr. Hamilton's and Professor Shryock's chapters in this volume.

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guided efforts. The *Times* called the nineteenth century the "Age of Societies," because

The rage for union is triumphant; from red-handed communism to Bible-distribution, every possible wish, thought, or hope of the human race seems to have its association. Therefore we are not surprised at the 'Proceedings of the National Association for the Protection of the Insane,' which has recently been put upon our book-table. Reporters, disguised, forcing their way into insane hospitals in order to make a sensation and earn their penny a line, lawyers overbrimming in court with philanthropic eloquence concerning the sufferings of some client not too insane or too impecunious to recognize the golden springs that move legal emotion to its centre, learned judges on their benches, newspaper editors in search of a sensation, and doctors eager for notoriety and fees, have made such a din that a quiet voice asking for protection of the sane is not to be heard; and as there is no taint of consulting visits or legal processes upon the breezes that blow from such quarters, we suppose it will not be possible to have a flourishing society to protect the sane against the insane; but assuredly the sane suffer more from the insane than do the insane from the sane.

Sitting in court the other day we saw an old man with face scarred and furrowed as a tree torn and blasted with lightning: one eye gone, health ruined, a victim of the insane,—of the vitriol-man. Picking up the newspaper this morning, the first paragraph gave account of the murder of a family by their crazed mother. Going into a patient's house, the story was told us of the whole family life ruined by the doings of a member really insane, but not yet quite insane enough for the law to step in—of a daily martyrdom by worry beyond endurance. . . . The truth is that physicians in charge of insane asylums, and physicians who give certificates, almost without exception are both able and honest men; and it is little less than an outrage that any physician should try to climb into power or wealth over the shoulders of these men by the cruel hooks of public prejudice.²²

The state of affairs gleaned through the above editorial prevailed almost forty years after the founding of the Association of Medical Superintendents. Deplorable as this was, it was significant in that it demonstrated a vital public interest in the problems of the treatment of the mentally ill. That the Association contributed to the awakening of this interest cannot now be contested; when it was founded there was little public concern about the problem.

Three months after the Original Thirteen foregathered to discuss their problems, a case was tried in the Supreme Judicial Court of Massa-

²² Quoted by Am. J. Insanity, XXXIX (1882-83), 85-86.

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chusetts which was to go down in the history of American psychiatry as a turning point in the legal relations of the insane. In January, 1845, the court sat for two days to consider the case of Josiah Oakes, who was a patient at McLean Hospital upon the application of his sons. Oakes petitioned for his discharge. Justice C. J. Shaw, who presided over the proceedings, proved in this case—as he continually did in criminal cases in which the plea of insanity was interposed—an enlightened liberal. He considered it a matter of humanity to confine a mentally sick person in a hospital, such confinement to be considered an adjuvant of treatment and not a violation of one's constitutional rights. The report of this case of habeas corpus as published in the January, 1846, issue of the *American Journal of Insanity* bears the following heading:

A person who is insane, or delirious, may be confined, or restrained of his liberty, by his family, or by others, to such extent, and for such length of time, as may be necessary to prevent injury or danger to himself and others.

Such confinement and restraint may be in his own house, or in a suitable asylum, or hospital.

The repetition and frequent occurrences of acts, without any motive sufficient to actuate persons of ordinary sense, are evidence of aberration of mind; and in such cases, accumulation of proof becomes important.

Such aberration of mind will authorize the restraint of the person subject thereto, although he has not committed any actual violence.²⁸

The chief proponent and the most scholarly blazer of new trails in this field of jurisprudence in American psychiatry was, again, Isaac Ray. The Association was not four years old when Ray was able to report the advance made by the state of Maine regarding the legal relations of the insane. With his characteristic terseness and sober acidity, Ray remarked, "It is not one of those subjects that strongly appeal to the attention of legislative bodies by their intimate connection with some scheme of temporal advancement. It presents to the Solons of the time, no other claims than those of suffering humanity, and hence is too often allowed to go its way until a more convenient season."²⁹

Two years later, in 1850, Isaac Ray produced a project of a law covering all the legal relations of the insane, civil and criminal. This document is in many respects more advanced than some of our laws of today, almost one hundred years later. In it he states: "It will be regarded hereafter as a curious fact, that while the most of our insane hospitals have

²⁸ Am. J. Insanity, II (1845-46), 225.

²⁹ Ibid., IV (1847-48), 211.

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been created and more or less maintained by the State, the confinement of the insane is regulated in most, if not all the States, by no statute law whatever.¹⁹

And again: "This condition of the law is fruitful of evil to all parties concerned," and the legal decisions are "not in accordance with dictates of humanity, or of medical science." Ray speaks of "seclusion for the purpose of cure or custody." He recalls Justice Shaw's decision in the Oakes case and his reference to "the great law of humanity," expressing himself in favor of a legislative act which would authorize the relatives of a patient to commit him to a mental institution. Speaking of the many wrongs the insane are capable of committing, Ray pleads that the insane be protected by law against committing these wrongs, and he adds in his characteristic manner: "It may be objected, perhaps, to this view of the matter, that such acts should be regarded as a visitation of Providence, or to use the legal phrase, the act of God, the consequences of which, like those of storm or fire, should be borne exclusively by the aggrieved party. They often certainly seem to have this character, and it would be little better than heathenism to treat them as the acts of a rational being."³⁰

Isaac Ray had in mind a number of cases civil and criminal which he had studied and in which he had been called upon to testify. He knew the law books, but he knew the court room too, and he knew the hospital ward and its occupant. The Association of Medical Superintendents followed his lead in matters of medical jurisprudence of insanity, but changes were brought about very slowly.

The Association was twenty years old when it appointed a Committee on Lunacy Laws to study the status of these laws in all states. Isaac Ray was chairman of this Committee.³¹ The problem has grown in scope and complexity. Some states very early established proper administrative apparatus to deal with the problem; others were too slow to recognize the need. The state of Vermont has had a Commissioner of the Insane since 1845, while in other states such an office was not created until a quarter

¹⁹ *Ibid.*, VII (1850-51), 217.

²⁰ *Ibid.*, p. 230.

³¹ In the January, 1864, issue of the *Journal of Insanity* a letter from Ray was published which read in part: "The Chairman of the Committee appointed at the last session of the Association of Superintendents, on the laws relating to insanity, in the various States of the Union, regrets that he has received reports from only a few of the members of the committee, and that some of those are entirely silent on some of the prescribed points. Unless the members report at an early date it will be impossible for the chairman to perform his part of the work in season for the next meeting." (XX, 355-356.)

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of a century later; New York appointed a Commissioner of Lunacy in 1873.

As early as 1851 the state of Rhode Island had a definite, well-established procedure. Its General Assembly enacted a law requiring certification by one physician before a patient could be admitted to Butler Hospital. In the words of the law, "any respectable person" could apply in writing stating that a certain person was insane; thereupon, a judge of the Supreme Court would consider issuing an appropriate order.

The editors of the *Journal of Insanity* commented favorably upon the Rhode Island "Act in relation to the Butler Hospital for the Insane." They expressed their satisfaction with the fact that this law followed in the main Isaac Ray's project submitted to the Association in Boston only one year before. However, they observed that "the efficiency of the present act has been somewhat impaired by omitting some important provisions in the proposed law [Isaac Ray's], viz.: the sixth, seventh, ninth and tenth sections. This certainly is acting the play with the part of Hamlet left out."²⁰

For fifty years after the founding of the Association the problem of adjusting the legal requirements to the curative and custodial needs of the mentally ill was discussed, worked over, passionately elaborated or simplified by the psychiatrists, lawyers, charitable societies, state governments, and some of the insane who—utilizing the privilege of the writ of habeas corpus—were able to air their realistic or fantasied grievances before the courts of law. The case of Mrs. E. P. W. Packard is in this respect to be particularly noted;²¹ for almost seven years this case remained before the public eye. Despite the fact that the administrative apparatus for supervision and control of mental institutions was being improved and refined, the general attitude of suspicion and distrust seemed to be spreading.

The state boards of charities (the first of these was organized in Massachusetts in 1863), Lunacy commissions, societies for the protection of the insane, medico-legal efforts in and outside the psychiatric profession, all were preoccupied with the status of the insane in a spirit of fervor and idealistic aspiration which all too frequently led to recriminations and bitter ardor. The noble principle promulgated by Horace Mann that "the insane are the wards of the state" seems to have brought with it, in

²⁰ *Ibid.*, VIII (1851-52), 150.

²¹ Cf. Albert Deutsch, *The Mentally Ill in America* (New York, Doubleday, Doran, 1937), p. 423.

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the very process of its practical realization, a welter of ill-feeling and confusing rancor. Nathan Allen, the Lunacy Commissioner of Massachusetts, summed up the situation rather poignantly when he said in his report of 1874, "There has grown up and existed for some time an antagonism of feeling and interest between hospitals, the superintendents and trustees as a body, and the general public ..." and, quoting one of the trustees, "It seems as if the public believed that every man connected in any way with a hospital for the insane had entered into a conspiracy to deprive the patients of all their rights and to do violence to all the relations of life."²²

Political interference added to the difficulties. A typical although rather extreme example is seen in what the *Lynchburg Virginian* of May 14, 1881, called "a law passed by our Communistic Legislature which turned out the Board of Directors" of the mental institutions and replaced them with "men of whose existence until so appointed, the world was ignorant. ... Two of these boards held meetings and turned out every officer of the Institutions at Staunton and Richmond."

The habeas corpus proceedings which the editors of the *Journal* reported in 1883 were wasteful of time and energy and resulted in setting free definitely sick individuals. In the writ the patients were called "the prisoners." In one of his decisions Judge Shipman of the state of New York stated with admirable insight, "As a rule, courts cannot write a record that will bind an insane person at all. It is only when a man is sane that it can enter a judgment that he is insane, which will establish the fact against him conclusively."²³ But such enlightenment was at the time comparatively infrequent. The state of New York was in the lead as far as working for the solution of the problem was concerned. In 1888 Stephen Smith, once Commissioner of Lunacy, appeared before the National Conference of Charities held at Buffalo on July 5 and submitted "the project of a law, for the commitment of the insane to custody, to be adopted by several states." In this connection, it is interesting to note that the psychiatrist favored a legal enactment of a statutory nature as regards "furloughs" or "leaves of absence on trial," which are known today as "parole."

Toward the close of the eighties the general legal principles and procedural details became more or less crystallized. Despite a number of

²² *Ibid.*, p. 426.

²³ Am. J. Insanity, XXXIX (1882-83), 309.

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variations as to details in many states, the problem of safeguarding the
rights of patients and of protecting the members of the profession suffi-
ciently so that they might be able to discharge their medical duty without
too much outside interference and in moderate peace was more or less
uniformly solved.

It really matters little that the certificate of two physicians and a court order are required in New York to commit a patient, and that a jury verdict is required in Illinois. Considerable and progressive improvement, of course, is marked in the establishment of the Department of Mental Hygiene in New York (1927), as compared with the one-man commission in lunacy (1873), the three-man commission (1889), or the state hospital commission (1912). There is also an improvement in the procedure of commitment by jury in Illinois, a procedure (established in 1869) which was repealed in its old form in 1893 but is still preserved for some cases.

All these improvements make for greater efficacy of administrative functioning, but the real improvement should be measured by the full recognition of the medical authority of the psychiatrist. In this respect the law still, one hundred years after the profession was officially established, leaves a great deal to be desired. The "examiner in lunacy" and the "qualified psychiatrist" are still insufficiently defined concepts. This lack of legal clarity is but the reflection of the general prejudice which still lingers on with regard to psychiatry and the psychiatrist. Apparently it is this prejudice that is responsible for the very slowness with which we have evolved and with which the achievements in this field have materialized. It took years for the minds of men to become sufficiently clear on the subject so that Isaac Ray was able to give a concrete formulation of a project of a law, and many more years were required before psychiatrists were able to debate specific issues and speak not of creating new but of improving the existing laws which in the meantime had been established. It has always been and still is a struggle between the progress of medical psychology with its inherent humanitarian spirit and public opinion. The public is always far behind the times in such matters, sandwiched in between the two cultural forces of the law and psychiatry, standing firm on the pedestal of its past, leaving it unwillingly or at any rate cautiously, never with diffidence but always with the certainty of being right in the abstract and in form. To use the words of Dr. John H. Callender, president of the Association of Medical Super-

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537

intendents in 1883, it was always "a matter whose intrinsic legal difficulties have vexed the jurisprudence of every country."

In his presidential address Dr. Callender analyzed Ray's project of a law propounded nearly a quarter of a century before and called attention to the fact that the psychiatric profession had no quarrel with the law; it only wished to make its reasonable contribution to the vital problem of proper and unimpeded treatment of the mentally ill. Speaking of the laws projected by the Association, Callender said, "Some of their features have found favor in quite a number of the States, but the sensitive fondness for antiquated precedents, of the profession which boasts its science as 'the perfection of human reason,' and whose members usually compose two-thirds of all the legislative bodies in the country, and whose work frequently produces a mystification in laws to which the confusion of Babel would have been concord, and Cimmerian darkness as mid-day splendor, have thus far prevented their general acceptance."<sup>28</sup>

With the century moving to its close, it was clear that as public opinion became crystallized in the course of the years, the psychiatric profession became more certain of its position and more definite as to practical details. When Dr. Stephen Smith presented his project of a law and made his report on the care and commitment of the insane, Dr. Walter Channing of Massachusetts wrote a long letter to the *Journal* subjecting the report to judicious scrutiny. "Why," asks Channing, "Why endeavor to specify in a law the manifestations of disease which will entitle the insane man to hospital treatment? Such a clause in a law as Section I only befogs the lay mind, and as far as having any influence on medical opinion, which sends the insane man to the hospital, is a dead letter." And further: "Neither justices of the peace, nor superintendents of the poor, are fitted to be clothed with the powers here given, and furthermore such complicated proceedings are entirely unnecessary."<sup>29</sup>

Channing appeared a little uncertain as to the great value of voluntary admissions, which it may be noted had existed in his state since 1881. "The voluntary law then in Massachusetts is honored only in the breach, being constantly broken"—a mental attitude not to be shared by the generation of psychiatrists which followed Dr. Channing. Dr. Channing saw in the newly suggested law for New York the definite influence of the law of Massachusetts. The New York psychiatrists saw in certain

<sup>28</sup> Am. J. Insanity, XL (1883-84), 22-23.

<sup>29</sup> *Ibid*., XLVI (1889-90), 298-299.

538

GREGORY ZILBOORG

changes suggested in Illinois the influence of the New York law. It was evident that a uniform trend was spreading over the country.

Two years before commitment by jury trial with the patient present in court was repealed in Illinois, Dr. Sanger Brown published a paper on the proposed changes of the Illinois insanity laws. This paper was read before a joint meeting of the Chicago Medical Society and the Medico-Legal Society of Chicago in February, 1891. Pliny Earle took part in the discussion. The *Journal of Insanity*, reporting briefly on that meeting, minced no words as to the cruelty of commitment by jury. "Dr. Sanger Brown's proposals are all sensible and reasonable; though some of them show a greater deference to the popular unreasoning prejudices than would be considered necessary in this meridian. However, they are in their principal features remodeled after the law of New York."²⁴ (We must not lose sight of the fact that this took place in 1891, only three years before the Association reached its half century mark.) "Dr. Archibald Church's remarks in the course of this discussion will serve to show," the *Journal* continued, "that our comments have not been guilty of extravagant language"—that it was the old and ugly principle and procedure of *de lunatico inquirendo* which brought the patient into the court room.

Dr. Church's remarks were as follows:

I have seen a man suffering, unfortunately for him, from acute mania, shackled hand and foot and then placed in a great canvas sack which was tied around his neck, and in that condition, carried thirty miles to the county seat, and subsequently, on the same day, brought fifty miles to the asylum, without any opportunity to attend to the calls of nature. I have found that man one mass of bruises from the top of his head to the soles of his feet, and I have seen him succumb in six days, and I attribute it to this treatment. When you have seen such things under this law it needs no argument to show that it is not the law for this time and this community. When you have seen a woman who scarcely stood five feet high, bound and tied with forty feet of rope that had been used to tether a cow, and in that condition, held down by four men, carried in an open wagon twenty miles to be tried, and still in that condition brought to the asylum, you will realize that this law is not a beautiful thing. When you have seen a man taken from within a stone's throw of a State institution, shackled hand and foot and carried twenty miles to the county seat, struggling with all his might the entire distance, and immediately brought back the same distance in the same plight, in a closed carriage, out of which he had managed to knock all the glass, his legs sticking out of one

²⁴ *Ibid.*, XLVII (1890-91), 586.

LEGAL ASPECTS OF PSYCHIATRY

539

window and his head out of the other, cut and maimed, bruised and bleeding, with scarcely any clothing left upon him, and have seen him die within twenty-four hours, you will understand that this law is not the humanitarian triumph it is claimed to be.²⁵

In 1894, when the Association was just fifty years old, Dr. G. Alder Blumer reminded us in his paper, "The Commitment, Detention, Care and Treatment of the Insane in America," that the words of Pliny Earle (uttered a quarter of a century before) were still valid and potent: "The most that can be done is to affirm and reiterate some general principle that commends itself to intelligent approbation and to leave it to make its way among men of sense and influence, as all good general principles will, until it becomes the common sense of the community."²⁶

Dr. Blumer called attention to the fact that in Mississippi, Texas, Wyoming, and some other states a public patient is committed on the verdict of a "jury of laymen, no medical examination being required. This, to say the least, is a semi-barbarous method and involves the cruelty of making sick persons objects of curiosity and ridicule among public spectators. In Illinois, Kansas and Minnesota, commitment is on the verdict of a mixed jury of laymen and physicians. The law requires that at least one physician shall be on the jury. This is only a shade less barbarous."²⁷

Dr. Blumer felt constrained to "affirm and reiterate" that "No superintendent could have any motive to connive at an improper commitment, and even assuming the possibility of a corrupt official at the head of an institution, any conspiracy would have to involve many others both inside and outside of the institution."²⁸ Blumer recalled the words of Lord Shaftesbury (permanent chairman of the British Lunacy Commission for thirty-two years), who said before the special commission of Parliament on lunacy laws in 1877: "I am ready enough to believe that when temptation gets hold of a man's heart he is capable of doing anything. But, I am happy to say, Providence throws so many difficulties in the way of these conspiracies that I believe conspiracies in ninety-nine cases out of a hundred to be altogether impossible."²⁹

And finally, as if to emphasize that the issues involved were purely

²⁵ *Ibid.*, p. 587.

²⁶ *Ibid.*, L (1893-94), 540.

²⁷ *Ibid.*, p. 541.

²⁸ *Ibid.*, p. 540.

²⁹ *Ibid.*

540

GREGORY ZILBOORG

medical and humanitarian and not formal, Dr. Blumer recalled a pas-
sage in Dr. Godding's address to the Conference of Charities a few years
before: "There is to be less laying of corner-stones with appropriate
ceremonies, but more ordinary brick-work; building to anticipate rather
than follow the needs of the insane, and so, with no flourish of trumpets,
but silently keeping step in the march of human brotherhood round the
world."⁶⁰

This practical, humanitarian motive expresses both the summary of
the first fifty years of the Association's existence as well as a motto for the
fifty years to follow. We shall not devote so much space to or supply so
many details about the second fifty years, the close of which this volume
marks. This-not because these fifty years do not deserve the same atten-
tion or because they offer less food for reflection on the subject which
occupies us here-but because historically the second half of the Associa-
tion's century is still too close to our own time, and in addition it is
characterized more by the utilization and development of what the first
fifty years had achieved than by any original contributions in this field.

The term "lunacy" has fallen into complete disrepute, if not yet total
oblivion. The same much hoped for fate has befallen the term "insanity."
Both are still used by lawyers, in court rooms and in legal documents.
Neither is used by the scientific psychiatrist, unless for the purpose of
some qualifying emphasis of implied or overt irony. The first fifty years
performed the immense job of psychiatric maturation. Ideas, trends,
humanitarian principles in the psychiatric management and care of the
mentally ill-all were developed and most were conceived during those
first fifty years, and were bequeathed by way of the implacable continuity
of history to the half century to come. It is a matter of rather gross his-
torical irony that Weir Mitchell, a psychiatric outsider, should have taken
psychiatry to task for its intellectual and scientific isolation at the very
celebration of the Association's semi-centennial. Weir Mitchell, a self-
willed and alert contemporary, could not but fail to grasp the historical
perspective as it concerned psychiatry fifty years ago, and he failed to
notice that while he came consciously to condemn he actually voiced
many of the aspirations of psychiatry itself, aspirations which could not
have been materialized or even properly crystallized before. They could
not have matured earlier because the business of the legal relations of
the insane was neither a matter of theoretical principle nor of abstract
⁶⁰ Ibid., p. 547.

LEGAL ASPECTS OF PSYCHIATRY

541

moral values; it was the most serious, most pressing job to be done, and
until a satisfactory form of its solution was in sight the full attention of
the psychiatrist could not be focused on other problems.

The general confusion in regard to the problem had to be resolved,
and the legal status of the mental patient had to be made humane and
orderly. This required an immense amount of preparatory work, and the
work was brilliantly done not only by such gifted and inspired men as
Isaac Ray but by the Association as a whole. The second fifty years had
but to follow in the footsteps of the first fifty to be progressive and creative
in the matter of humanized reform in the legal position of the mentally
ill. Without that reform proper treatment was frequently jeopardized or
made totally impossible. Since 1894 psychiatry has continued to combat
the injustices which the leaders of the first half of the century were unable
fully to eradicate, while at the same time it continued to develop what
the preceding generations of psychiatrists had succeeded only in out-
lining, "affirming and reiterating."

As late as 1933, almost forty years after Blumer's eloquent summary of
the situation and his appeal for betterment, there were still fourteen
states in which mental patients awaiting commitment were legally de-
tained in jails, and six states permitted such detention if the patient was
violent.⁶¹ In the same year a bill introducing more progressive commit-
ment laws in California, and incidentally removing from the sheriffs their
function of handling patients to bring them to a hospital, was vetoed by
the governor, because he was petitioned to do so by the California Sheriffs'
Association.⁶² Very often in the past and not infrequently even today, to
use the expression of a former president of the State Board of Charities
of New York, "Legislative embarrassment was resolved into an admin-
istrative difficulty," or vice versa.⁶³

On the other hand, a definite change has taken place in what is still
known as the legal relations of the insane. An old trend has developed
into a more definite psychiatric orientation. The idea of voluntary com-
mitment, or, to be more correct, voluntary entrance in a formal legal
manner into a mental hospital, was first given legal recognition by Massa-
chusetts in 1881. But it was the twentieth century which established this
procedure as a definite and frequent practice. In the meantime legal

⁶⁰ Deutsch, op. cit., p. 434, citing Glenn Myers.

⁶¹ *Ibid*., p. 439.

⁶² Oscar Craig, "The New York Law for the State Care of the Insane," Am. J. Insanity, XLVIII (1891-92), 172-183.

542

GREGORY ZILBOORG

involuntary commitment became more or less uniform; for details the reader is referred to the crisp and more than adequate summary by Deutsch, which need not be recapitulated here.⁴⁴

As to the development of voluntary commitment⁴⁴ before 1887, only three states had voluntary admission laws: Massachusetts (since 1881), Maryland (since 1886), and Virginia (since 1887). By 1924 twenty-eight states had such laws.⁴⁵ Overholser summarized the situation as follows:

> The voluntary admission law is a useful provision from a psychiatric and social point of view, encouraging early treatment and thereby hastening recovery in many cases.

To be most useful it should be open to all suitable applicants, whether or not they are able to pay for their maintenance.

Patients with practically any form of psychosis in the early stages are admissible, as are also psychoneurotics.

Alcoholics and drug addicts cannot be satisfactorily treated on a voluntary basis.

A voluntary application is a form of contract which is valid if the patient is competent and is acting of his free will.

Only persons who are competent should be allowed to enter as voluntary patients, and committed if they later become incompetent.

The length of required notice should be only sufficient to allow time to notify the patient's relatives that he is about to leave or to have him committed in case release is not advisable.

The voluntary admission law was first called into question before the Supreme Court of Massachusetts in 1922, and this court rendered a decision which is valuable as indicating the proper procedure in certain cases.⁴⁶

It is of utmost interest to note that eighty years after the Association was founded, while the center of attention had shifted somewhat, the tone and the spirit of the discussion were reminiscent of many a discussion of years ago. Thus Arthur Ruggles, in discussing Overholser's paper, pointed out some of the inconsistencies of legal interpretations and concluded by saying: "If these things could be carried out in a uniform way throughout the country, it would be a splendid achievement. This would be one of the greatest forward steps for the medical oversight of the whole problem of mental disease."

⁴⁴ Deutsch, op. cit., pp. 427-437.

⁴⁵ I follow here Dr. Winfred Overholser's excellent outline, in "The Voluntary Admission Law," Am. J. Insanity, LXXX (1923-24), 475-487. Discussion of above by Dr. Arthur H. Ruggles and others, pp. 487-490.

⁴⁶ *Ibid.*, p. 476, fn. 6.

⁴⁷ *Ibid.*, p. 487.

LEGAL ASPECTS OF PSYCHIATRY

543

The old question of the violation of the Fourth and Fourteenth Amendments to the Constitution of the United States, if a mental patient is "improperly" admitted or "forced" into a mental hospital, still stands unsolved at the close of the first century of the Association. Samuel W. Hamilton, in his discussion of Overholser's paper on the Voluntary Admission Law, expressed his highly acceptable opinion quite trenchantly when he said:

> If a man has an accident in the street and goes to a hospital and the radiogram shows that he has a fracture at the base of the brain, he will be kept there until some sort of provision is made for his suitable care and it won't make any difference whether he protests or not; but if the X-ray does not show he has a fracture of the skull, various legal restrictions stand in the way of proper care. What can be done? I think the sooner that distinction is swept away, the better for the patients. The time is coming when some of those old safeguards, erected by legal authority and legal decision so that scheming relatives could not act in collusion with the superintendent of the state hospital and hold some sane person behind the bars, can be swept aside. In this connection think of the alcoholic. Though deprived of liberty in a hospital, still there is no question raised as to whether the man with alcoholic delirium should be sent to the hospital; once in the hospital he stays there until his delirium is over.⁴⁸

In the course of the same discussion Dr. Hobbs cited two very telling experiences with courts in Ontario, one in which the Chief Justice of Ontario presided. In both cases the court ruled in favor of the mental hospital. The lawyer naturally dissented. As Dr. Hobbs relates the story in part:

> My lawyer constantly argued with me that I was wrong. He says you may admit a patient in the early stages of mental trouble as a voluntary patient, but if the patient develops into an acute mental case, you should have the patient committed. ... He and I argued the question for 21 years, but in both cases in which the institution was sued both judges ruled in favor of the institution. The revision judges allowed the clause to stand in the statutes recognizing it to be a good law so that patients may admit themselves saving them a certain amount of publicity. ... This voluntary clause applies to private institutions in Ontario for the care of borderland or mental patients which are constantly inspected by boards appointed by the government, the chairman of which must be the county judge.⁴⁹

It is clear that if the theory of the law affecting mental patients still shows decisive strains of superannuated formalism and ancient prejudice,

⁴⁸ *Ibid.*, pp. 488-489.

⁴⁹ *Ibid.*, p. 489.

LEGAL ASPECTS OF PSYCHIATRY

545

dices, the practice of the courts and many new laws have been well-nigh
revolutionized since the days when the overseers of the poor and the lo-
cal jailers had oversight over the greatest majority of the mentally ill.

The law, whether protecting the community from a dangerous psy-
chotic or defending the psychotic's constitutional rights which he was
unable to exercise or enjoy, had and strictly speaking still has no con-
cern as to the treatment and ultimate cure of the very patient whose rights
it wishes vigorously to protect. The Association (and ultimately psy-
chiatry as a whole), having primarily a therapeutic concern, was naturally
eager to convert the law to its point of view. Were the lawyer successful
in converting the psychiatrist to his purely legal outlook, the therapeutic
intent would naturally suffer. From this standpoint it is impossible to
overestimate the educational importance of psychiatry during the past
century, and it is easier to understand why the Committee on Legal
Measures and Laws of the First International Congress of Mental Hy-
giene, held in Washington, D. C., in 1930, recommended that "Admis-
sion to a mental hospital for treatment should be made as informal and
easy as the constitution and the laws of the country would permit."

The above general discussion of psychological and sociological con-
flicts underlying the law in its relation to mental illness will easily sug-
gest that the problem, intricate though it appears, is that of educating
the legal mind and changing the laws rather than changing the psychiat-
ric attitude as that of a medical discipline. The history of the problem
and its vicissitudes, even though presented here only in sketchy outline,
clearly shows that psychiatry cannot change its fundamental attitude
and remain a medical, therapeutic discipline; it may, does, has, and will
acquire new and greater knowledge, but it does not change. The law, on
the other hand, is the agency which must adjust itself to the newer knowl-
edge. It is obvious, of course, that the law is not an autonomous agency
in human society; it is an integral part of the sum total of cultural pat-
terns which we are wont to call a given civilization. Therefore, the law
depends on the changes which constantly occur in our culture, its psy-
chological orientation, its sociological ideology, and its humanitarian
growth on that which Chief Justice Shaw of Massachusetts called "the
law of humanity" in the Josiah Oakes case one hundred years ago.

The simple enumeration of these changes, which are not only hoped
for but imperative, would at once suggest the immensity of the educa-
tional task which psychiatry—as one of the most potent expressions of

WILLIAM A. WHITE

546

GREGORY ZILBOORG

modern culture—had and still has to perform. The difficulty of this task and the efficacy with which it has been performed are well illustrated, we believe, by the review and discussion of the “legal relations of the insane” in their civil aspects. One can say that on the whole the psychiatrist successfully rebelled against more frequently than he reluctantly served that which had outlived its usefulness on the statute books or on the trodden path of the common law, some ruts of which kept “the common sense of the community” on a rather low or primitive level.

If the civil “legal relations of the insane” were the only legal relations in which psychiatry is involved, we could say without hesitation that the psychiatrist was fully successful in his battle with the law. The law gave in without having to be vanquished; psychiatry won without enslaving the defeated opponent and has preserved all due respect for this opponent, with whom it continues to live in a spirit of coöperative effort. The old conflict and animosity have become transformed into intellectual disagreement, dispassionate, rational argumentation, and the coöperative pursuit of a common goal—the protection and welfare of the individual in society and in his personal life.

There is, however, one aspect of the legal relations of the insane which is still dominated by all the conflicts of past centuries and still pervaded by the spirit of distrust. This is the aspect touching the problems of crime and mental disease. In this field, the psychiatrist himself has been far from enjoying freedom from inner cultural conflicts, and his attitude toward the law has been therefore neither constant nor always medical—that is, curative. In this field, both psychiatry and the law seem to have been under the pressure of necessity for a cultural change; the history of this relationship is intense and dramatic. It represents an as yet unfinished page of history, and yet one already replete with significant and highly expressive lines.

Six years before the Association of Superintendents was founded, Isaac Ray made his first contribution to the problem. He was then just over thirty years old, yet he was already a scholarly expert and judicious thinker in the field of “Medical Jurisprudence of Insanity.” Ray’s book, bearing the above title, appeared in 1838, three years before he became superintendent of a mental hospital, five years before the formulation of the famous McNaghten case. It has the distinction of being the first American publication on the subject—it is well to note that the first contribution in this field was made by a physician. For over forty years it

LEGAL ASPECTS OF PSYCHIATRY

547

enjoyed the position of being the most authoritative book on the problem, and it went through more than half a dozen editions. During the forty-three years which elapsed between the appearance of the book and the death of Isaac Ray, he dominated the medico-legal thought of American psychiatry, even though many in the Association disagreed with him, and at times violently. Ray was not only ahead of some of his colleagues but ahead of his time in the problems touching upon the medical jurisprudence of insanity. His book therefore deserves special attention, although it appeared before the Association was organized. It was a true forerunner and milepost on a highway of progress which was seldom peaceful and frequently stormy.

Ray approached the subject of medical jurisprudence of insanity not only as a psychiatric thinker but as a scholarly, thoughtful historian. His preface and the chapter entitled “Preliminary Views,” comprising a total of seventy-three pages (out of a total of 481 of text), represent the first comprehensive historical review of the subject written by an American, and one of the very best in the whole history of the subject. To Horace Mann, “to whose persevering exertions, our country is mainly indebted for one of its noblest institutions for ameliorating the conditions of the insane,” the book was “respectfully inscribed as a humble acknowledgment of esteem.”

The spirit of the work, the general attitude of the psychiatrist toward the prevailing legal traditions in relation to the mentally ill, seem not only familiar to the present-day psychiatrist but even at times contemporary—all this despite the fact that the book was written by a young general medical man over one hundred years ago.

The opening sentence of the preface sounds like the habitual refrain of the present-day student of the medical jurisprudence of insanity: “Few, probably, whose attention has not been particularly directed to the subject, are aware how far the condition of the law relative to insanity is behind the present state of our knowledge concerning that disease.”

Ray acknowledges the progress made “to promote the comfort of the insane, and so much improvement has been effected in the methods of treating their disorder, as to have deprived it of half its terrors.” Yet, “it is both a curious and a melancholy fact, that so little has been accomplished towards regulating their personal and social rights, by more correct and enlightened principles of jurisprudence.”

Ray reflects the awareness of the psychiatrist that his clinical orienta-

548

GREGORY ZILBOORG

tion is not very welcome to the professional legal mind, and he says, "Be-
fore being condemned for substituting visionary and speculative fancies,
in the place of those maxims and practices which have come down to
us on the authority of our ancestors, and been sanctioned by the approval
of all succeeding times, he [the author] hopes that the ground on which
those alleged fancies have been built, will be carefully, candidly, and
dispassionately examined."²⁰

"That much of the jurisprudence of insanity, in times past, should bear marks of the crude and imperfect notions, that have been entertained by 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."²¹

After a survey of the older views, Ray leads us through the maxims and opinions of Hale, Coke, Hardwick, Eldon, and the incongruities resulting therefrom and from the legal definitions of lunacy, idiocy, and "unsoundness of mind." He remarks, "That it should still continue in a country [England], where it is linked in with a system, whose foundations are in the very constitution of the government, is perhaps not strange; but, that it should be used in some of our own states, which are untrammelled by such considerations, is certainly an anomaly in legislation."²²

When Ray enters upon a consideration of the criminal as contrasted with the civil law, he is not less earnest but noticeably more dissatisfied. Speaking of the application of the law to criminal cases:

There is much of the same respect for antiquated maxims, that have little else
to recommend them but their antiquity, and are so much the more pernicious
in their application, as the interests of property are of less importance than
reputation and life. It by no means follows, that a person, declared *non
compos* by due process of law, is to be considered, on that account, merely,
to be irresponsible for his criminal acts. This is a question entirely distinct,
and is determined upon very different views of the nature of insanity, and of
its effects on the operations of the mind; and, here it is, that the lawyer en-
croaches most on the domain of the physician.²³

²⁰ Isaac Ray, *A Treatise on the Medical Jurisprudence of Insanity* (Boston, Charles C. Little and James Brown, 1858), pp. xi-xii.

²¹ *Ibid.*, pp. 3-4.

²² *Ibid.*, p. 12.

²³ *Ibid.*, p. 14. Italics mine.

LEGAL ASPECTS OF PSYCHIATRY

549

Ray objects to the nonclinical artificialities of lawyers: "It is very difficult to define the invisible line that divides perfect and partial insanity."²⁴ "That the mind, when meditating a crime, is less under the influence of disease, and enjoys a more sound and vigorous exercise of its powers, than when making a contract, or a will, few, probably, will be hardy enough to affirm; and yet the practice of the law virtually admits it."²⁵

Just as by refusing to recognize that there is a dividing line between
total and partial insanity, Ray anticipated the modern concept of total
personality, so did he foreshadow the modern views on the role of the
emotions when he said, "Criminal acts, though abstractly wrong, may
under certain circumstances become right and meritorious; and, if the
strongest and acutest minds have sometimes been perplexed on this point,
what shall we say of the crazy and distorted perceptions of him, whose
reason shares a divided empire with the propensities and passions?"²⁶

Ray refers to Georget, for whom he has very great admiration. As a
matter of fact, Ray originally thought of translating Georget, before he
decided to write his own book on medical jurisprudence. He cites one of
the cases related by Georget: "The fact of insanity having been given to
the jury for decision, they returned that the accused acted *voluntarily*
and with *premeditation*; and, secondly, that he was insane at the time
of committing the act. This verdict, so consistent in reality, but so utterly
contradictory in a legal sense, was received by the court and understood
to mean, that the accused possessed the will of a madman, a merely animal
will which excludes legal culpability. Had not the last question been
raised, the accused, though mad, would have been condemned to death
... It is one of those metaphysical subtleties, so prevalent on the subject
of insanity, that the acts of an insane mind are *involuntary*."²⁷

Ray expresses "infinite preference" for the French law and disapproves
of the English law which "sits in judgment on the measure of man's
understanding."

The famous cases of the past, such as those of Hadfield, Bellingham,
Arnold, are restudied briefly, and Lord Chief Justice Mansfield is taken
to task, who "scarcely a dozen years after the absurdity of its principles
had been so happily exposed in a few words, by Mr. Erskine, on the trial

²⁴ *Ibid.*, p. 15.

²⁵ *Ibid.*, p. 21.

²⁶ *Ibid.*, p. 22.

²⁷ *Ibid.*, p. 25.

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GREGORY ZILBOORG

of Hadfield,” reverted to the old “metaphysical subtleties.” “What a comment on the progress of improvement in the medical jurisprudence of insanity!”—exclaims Ray.

Ray pitilessly dissects the “right and wrong test” and exposes its psy-
chiatric incongruity. Of the purely modern concept of individualization
of all psychopathological reactions, he states: “The particular criminal
act, however, becomes divorced in their minds from its relations to
crime in the abstract.”<sup>49</sup> The purely intellectual criteria of criminal acts
are devoid of any meaning: “One, who is not practically acquainted with
the habits of the insane, can scarcely conceive of the cunning which they
will practise, when bent on accomplishing a favorite object. Indeed, it
may be said, without greatly distorting the truth, that the combined cun-
ning of two maniacs, bent on accomplishing a certain object, is always
a match for the sagacity of any sound individual.”<sup>50</sup>

The outstanding feature of the *Medical Jurisprudence of Insanity* is Ray's espousal of the theory of moral insanity, to which he held fast throughout his life despite the fact that at one time he stood almost alone in American psychiatry on this question. His opponents were many; some of them were powerful, and some openly bitter in their opposition to Ray. The concept of moral insanity (which, as is known, was first formulated by Prichard in 1835) is historically and psychologically of great importance in psychiatry, for under this term the first appearance of the concept of psychopathic personality or neurotic character is marked. Ray's attitude toward moral insanity was more progressive and psychologically more sound than the corresponding attitude of present-day psychiatry toward the psychopathic personality or neurotic character. Psychiatry today is not inclined to consider the psychopath legally irresponsible; Ray considered moral insanity a sound cause for freedom from legal responsibility.

Ray reminded his contemporaries that mental disease is not and can-
not be limited to disorders of intellect: “... It must not be forgotten,
that the author of our being has also endowed us with certain moral facul-
ties, comprising the various sentiments, propensities and affections,
which, like the intellect, being connected with the brain, are necessarily
affected by pathological actions in that organism.”<sup>51</sup> Ray recalls Erskine's

⁴⁹ *Ibid.*, p. 34.

Ibid., p. 44.

⁵⁰ *Ibid.*, p. 48.

LEGAL ASPECTS OF PSYCHIATRY

551

innovation when he introduced the principle that the presence of delu-
sions frees one from legal responsibility on the grounds of legal insanity.
This Ray considers insufficient. When the individual is afflicted with
moral insanity and, "though perfectly conscious of what he is doing, [is]
unable to offer the slightest resistance to the overwhelming power that
impels him, the responsibility is to be considered not affected, because
no delusion is present to disturb and distort the mental vision! In short,
the very character that renders this mental disorder more terrible than
all others, is also that which is made to steel the heart against the claims
of humanity in behalf of its miserable victim."<sup>49</sup>

Years after Ray wrote these lines, his opponents—among whom the most formidable was the indomitable John P. Gray—felt that Ray was treading unsteady and morally dangerous ground. As is seen from the above, Ray’s notion of moral insanity carried with it a full acceptance of the theory of the irresistible impulse, as well as a broader and extremely liberal and humanitarian understanding of what we of today might call the affective disorganization of the personality—of what D. Hack Tuke many years later wished to call “inhibitory insanity,” or insanity in which the inhibitions usually present in normal civilized persons are disorganized. Such a broad conception of moral insanity could not but offend the sensibilities of those to whom the philosophic concept of free will was also an empirical, clinical fact, and who therefore were constrained to rise against such revolutionary, if not apostatic, ideas in psychiatry. How keenly this psychological insult was perceived could be judged by the fact that a man like John P. Gray was not only reprobatory about the concept of moral insanity but decidedly bitter and even rancorous. Although a member of the Reformed Church, he held fast to the theory of purely cerebral pathology and absolute free will, almost in the manner of an early Dominican.

To Gray the concept of moral insanity was decidedly repugnant, and
not to him alone. The *Journal of Insanity*, commenting on the trial of
Huntington, who was accused of forgery, stated: "If there be moral in-
sanity anywhere, it is likely to manifest itself in Wall Street. The wonder
is that it should never have been set up as a defense for the various in-
iquities committed there, until it was interposed in the case of Hunting-
ton."⁶² With equal directness if not as much sarcasm, Judge Lewis ex-

Ibid., p. 49.

⁶² *Am. J. Insanity*, XIV (1857-58), 110.

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pounded: "Moral insanity bears a striking resemblance to *vice*."⁶³ Judge Ludlow, charging the jury in the Freeth case (murder), said: "If by moral insanity is to be understood only a *disordered* or *perverted* state of the affections or moral powers of the mind, it cannot be too soon discarded as affording any shield from punishment for crime."⁶⁴

What characterizes the arguments about moral insanity is the prominence of passion, of the affective moral issues instead of scientific, psychological ones. This, as will be seen further, came out with particular distinctness in the Guiteau trial during which some of the experts were overtly recriminatory and angry when the question of moral insanity was brought up. This—almost fifty years after the appearance of Ray's *Medical Jurisprudence*. We may therefore conclude that the medical profession and the public were not only unready to accept Ray's views, but were still in a state of mind, or on that level of education, which permitted them to counter Ray's views with anger and rancor, as if he were attacking a sacred temple of truth with the sacrilegious expostulations of an ambitious and conceited new profession. As if to say: The metaphysical subtleties of the law may be modified to suit more modern medical language, but we may not and you new doctors may not broaden the field of legal irresponsibility; the guilty must be punished and not a single guilty person should be released merely because a physician insists that this person is mentally ill. As has been said, some physicians joined in this chorus; apparently they felt the need of being servants of the law more keenly than their own science warranted. Apparently, during that early transitional and formative state of psychiatry, the psychiatrist was as yet too insecure about the sociological role of his own science and profession, and he still sought security in almost unquestioning obedience to the law as it stood.

Although Ray's advanced position—foreshadowing by one hundred years the views of psychiatrists like William A. White and Bernard Glueck, or legal minds like Clarence Darrow and Sheldon Glueck—was new and isolated, the security of this contemplative, humanitarian psychiatrist was not affected.

With a dignified restraint which he would occasionally abandon to release a spark of fervor and almost religious scorn, Ray spoke:

> The doctrine of moral insanity has been as yet unfavorably received by judicial authorities, not certainly for want of sufficient facts to support it, but

⁶³ *Ibid.*, XV (1858-59), 305.

⁶⁴ *Ibid.*, p. 304.

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553

probably from that common tendency of the mind, to resist innovations upon old and generally received views. If, a quarter of a century ago, one of the highest law-officers of Great Britain pronounced the manifestation of "systematic correctness" of an action, a proof of sanity sufficient to render all others unnecessary, it is not surprising, that the idea of moral insanity has been considered by the legal profession, as having sprung from the teeming brains of medical theorists.⁶⁶

Gradually Ray permits himself to become a little more emphatic:

> In the fulness of this spirit, Mr. Chitty declares, that, "unless a jury should be satisfied that the *mental faculties* have been *perverted*, or, at least, the faculties of reason and judgment, it is believed, that the party subject to such a moral insanity, as it is termed, would not be protected from criminal punishment"; and ... At King's Cramond, Scotland ... moral insanity ... was declared by the court to be a "groundless theory." Such opinions, from quarters, where a modest teachableness would have been more becoming than an arrogant contempt for the results of other men's inquiries, involuntarily suggest to the mind a comparison of their authors with the saintly persecutors of Galileo, who resolved, by solemn statutes, that nature always had operated and always should operate in accordance with their views of propriety and truth.⁶⁷

Ray protests against the legal profession's search for a definition of insanity.

Jurists, who have been so anxious to obtain some definition of insanity, which shall embrace every possible case, should understand, that such a wish is chimerical, from the very nature of things. ... It is not too much to insist, that facts, established by men of undoubted competence and good faith, should be rejected for better reasons, than the charge of "groundless theory."⁶⁸

Ray did not go so far as to ascribe all criminality to mental pathology, but, speaking of Great Britain and beyond doubt having also the United States in mind, he came to the conclusion that "the law of insanity, especially that relative to criminal cases, is still loose, vacillating, and greatly behind the present state of the knowledge of that disease."⁶⁹

To use one of Ray's expressions at this point, "if the remarks seem to be unnecessarily prolix it can only be observed by way of excuse" that the importance of Ray's ideas on the subject cannot be overestimated. Not only did he surpass in vision and daring all his contemporary

⁶⁶ Isaac Ray, *op. cit.*, p. 49.

⁶⁷ *Ibid.*, pp. 49-50.

⁶⁸ *Ibid.*, pp. 50-51.

⁶⁹ *Ibid.*, p. 54.

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colleagues, but the validity of his views is so solid and profound even to-
day that many of his sound recommendations are still very far from
realization, although many of his successors have been working along the
lines he delineated one hundred years ago.

Ray's views on juries in criminal cases in which the plea of insanity
is interposed are fresh and daring. He says that juries are "manifestly un-
fit" to solve the question of insanity in a criminal case. For a jury "to de-
cide a professional question of a most delicate nature and involving some
of the highest interests of man, is an idea so preposterous, that one finds
it difficult, at first sight, to believe that it ever was seriously entertained."⁹⁰

Expert witnesses should be real experts, for "a medical man may spend
a life of full practice, without having been intrusted with the care of a
dozen insane persons." Only competent, experienced psychiatrists (Ray
does not yet use this term) should be called upon to be witnesses in court.
The courts are very deficient in this respect. "If they [the members of
the jury] are obliged to decide on professional subjects, it would seem
but just and the dictate of common sense, that they should have the bene-
fit of the best professional advice. This, however, they do not always
have; and, consequently, the ends of justice are too often defeated by
the high-sounding assumptions of ignorance and vanity."⁹⁰

Experts should examine the accused, as they usually do in France. Ray
cites a very telling story to demonstrate the unreliability of juries in
medical matters: "Many readers may recollect, that, in the case of Donel-
lan, tried in 1781 for the murder of Sir Theodosius Boughton, by poison-
ing, the opinions of three or four physicians, as unknown to fame, as
the science they professed to understand seems to have been unknown
to them, far outweighed with the court, that of John Hunter, though
illustrated by his various learning, and supported by his reputation for
unrivalled talents and original research."⁹¹

This is the substance of Ray's "Preliminary Views," which he follows
up with many chapters of detailed clinical descriptions of the various
psychopathological conditions known in his day; each clinical entity is
then reviewed from the point of view of legal (civil and criminal) impli-
cation. There is perhaps reason to experience a certain melancholy in
the perusal of this work, one hundred and five years old at this writing.

⁹⁰ *Ibid.*, p. 57.

⁹¹ *Ibid.*, p. 59.

⁹² *Ibid.*, p. 61.

LEGAL ASPECTS OF PSYCHIATRY

555

It is admirable to see how the contemplative perspicacity of Isaac Ray
penetrated through the century and enabled him to formulate many
of the problems which psychiatry of today is still struggling with while
the law still stands as firm as of yore. The law still uses the right and
wrong tests; it still is lax and rather unintelligent as far as expert testi-
mony is concerned; it still has juries decide the question of sanity. It is
not difficult to understand why there was a note of melancholy in the
sturdy and trenchant words of Ray at the conclusion of the "Preliminary
Views."

The dominant philosophy has prevailed so long and so extensively, and has
become so firmly rooted in men's minds, that they who refuse to take it on
trust and seriously inquire into its foundations, and after finding them too
narrow and imperfect, are bold enough to endeavor to remedy its defects by
laying foundations of their own, are stigmatized as visionaries and over-
whelmed with ridicule and censure. . . . So true it is, that, in theory, all man-
kind are agreed in encouraging and applauding the humblest attempt to
enlarge the sphere of our ideas, while, in practice, it often seems, as if they
were no less agreed to crush them, by means of every weapon, that wit, argu-
ment, and calumny, can furnish. In the course of this work, the reader will
have frequent occasions to see how the popular misconceptions—which are too
much adopted by professional men—of the nature of various forms of mental
derangement, have been produced and fostered by the current metaphysical
doctrines, and thus may have some means of judging for himself, how far the
imperfect notions of insanity, that are yet prevalent, may be attributed to the
cause above assigned.

Ray's truly noble scorn was not dictated by sentimental philanthropy
of spirit, but rather by true conviction that the clue to the secrets of
abnormal and antisocial behavior is to be found not in the formalistic
technicalities of the law but in the scientific investigations of mental
disease. From this thought Ray derived his inspiration and perseverance,
and it was with both inspiration and perseverance that he joined, as one
of the Original Thirteen, the efforts to further the work of the new Asso-
ciation. He was at once recognized by his colleagues as the authority on
the legal aspects of psychiatry.

Ray's authority and leadership of course did not remain unchallenged.
Although most of his opponents were younger than he when in the seven-
ties and the early eighties they challenged him, in matters of legal and
psychiatric aspects of crime they represented the older trends—they pulled

⁹³ *Ibid.*, pp. 66–67.

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GREGORY ZILBOORG

toward the past. But in the middle forties Ray's strictest censures of the criminal law as it existed were on the whole accepted by the profession. The *Journal* published reports of criminal cases in every volume. These reports contained expert testimony of the majority of the Original Thirteen, who frequently testified in court. The general spirit was that of coöoperation with the law, but also of educating the lawyer, whose "teachableness" seemed at the time rather high, considering the proverbial refractoriness of the lawyer, who since Coke and Lord Hale had seemed unable to assimilate anything psychiatric that was new.

The issue of moral insanity and the problem of the irresistible impulse as an excuse of crime, or bar to punishment, were conspicuous in the discussions of the time.

In 1884, D. Hack Tuke read a paper on "Moral Insanity" before the British Medical Association at Belfast, and one year later he spoke before the Medico-Psychological Association at Cork on a "Case of Congenital Moral Defect." To those meetings Tuke brought a letter which Prichard had written to Tuke's father as early as 1834, inquiring whether there were any cases of moral insanity to be observed at the York Retreat. "By that term," Prichard explained, "I distinguish the mental state of persons who betray no *lesion of understanding*, or want of the power of reasoning and conversing correctly upon any subject whatever, whose disease consists in a *perverted state of the feelings*, temper, inclinations, habits and conduct." Prichard's explanation is the earliest and most precise description of moral insanity.

Some time in 1891 Tuke published an extended essay on Prichard and Symonds, to which were appended the above-mentioned papers. The *Journal's* reviewer took notice of this publication in a manner of respectful irony. He stated that all that Tuke had expounded on moral insanity was "important, if true," and frankly came to the core of the matter by stating: "The truth is, that which has made definite conclusions so difficult to be reached on this whole subject, though science is supposed not to be deterred by consequences, or to take account where psychological dynamite may fall upon society, is the question of *responsibility*, and the obvious abuses that may creep in from this source to the administration of justice in our courts of law."²² The *Journal* further chided Tuke and Professor Maudsley for showing "a little more heat toward lawyers and judges than one might expect to find in the 'dry light' of science."

It is to be noted that this rather transparent rejection of the theory

²² Am. J. Insanity, XLVIII (1891-92), 406.

LEGAL ASPECTS OF PSYCHIATRY

557

of moral insanity was expressed almost exactly half a century after Ray first offered it to the American reader. The argument used against this theory, while scientific in appearance, was yet colored by the obvious concern of the psychiatrist for the proper administration of criminal justice and for the problem of the defendant's responsibility. It took a greater number of years than one would have wished for the psychiatrist to free himself from the confusion of his scientific conscience and duty and the inner demands of his civic conscience, which he must keep under absolute control if he wishes to avoid the risk of becoming merely a servant of legal traditions. The psychiatrist today is not yet entirely free of this civic temptation and scientific confusion, but sixty to seventy-five years ago this failing was more frequent and was looked upon more often as a virtue. Thus, in the trial of one George Hammond in 1857, Dr. W. S. Chipley, superintendent of the Lunatic Asylum in Lexington, Kentucky, appearing as an expert witness, testified plainly: "He was in my opinion irresponsible."²⁴

Moreover, the word "insanity" carried with it the connotation of "mental disease," with the emphasis on disease and a further accent on the pathology of the brain. When Dr. Walter Kempster, superintendent of the Northern Hospital for the Insane in Wisconsin, testified in the case of the murder of President Garfield, he had no doubts as to the extreme correctness of his opinion, and in this he reflected the opinion of the whole profession of his day. Said Dr. Kempster at the Guiteau trial (1881): "In every case of insanity there is disease of the brain which may be discovered if the proper methods are made use of to discover it. I have never yet examined a case in which I did not discover marked disease of the brain" (sic!).²⁵

It is this unfortunate, but for the bearer thereof happy, conviction that made John P. Gray, the "star" witness for the prosecution at the Guiteau trial, say, "Inasmuch as I, in my view, can not conceive of any moral act, or the exercise of any moral affection, without an intellectual operation or mental action accompanying it, so I can not possibly dissever this mental unity."²⁶ These men were unable to fathom a psychopathology of affects, and consequently they joined hands with the oldest tradition of the law and stressed the intellectual components only. Problems involving the psychology of emotions and moral reactions made them more

²⁴ *Ibid.*, XVI (1859-60), 179-181.

²⁵ *Ibid.*, XXXVIII (1881-82), 384.

²⁶ *Ibid.*, p. 425.

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GREGORY ZILBOORG

impatient than curious and more dogmatic than investigative. As a result, they were driven at times into very singular intellectual corners, from the affective cobwebs of which they had somehow to extricate themselves.

It was this welter of contradiction which led Dr. A. E. Macdonald, himself a superintendent of a hospital for the insane (New York City), professor of medical jurisprudence in the University of New York, and later president of the American Medico-Psychological Association, to utter this incongruity at the Guiteau trial: "I do not believe in it [moral insanity] myself. I have never seen a case. Moral insanity is another name, and has been from the time of its invention, for wickedness or depravity. Its first use, I believe, was at the time of the French Revolution [sic!] and it was meant to excuse the slaughter that took place then."⁷⁰

One might almost gain the impression that on the question of moral insanity Ray stood alone in American psychiatry. This would not be entirely correct. Not only certain psychiatrists but even some courts saw merit in the concept of moral insanity. Judge Gibson, although with caution and definite qualifications, yet recognized it when he said in 1846: "But there is a moral or homicidal insanity, consisting of an irresistible inclination to kill, or to commit some other particular offense."⁷¹ A matron of Mount Pleasant State Prison, Sing Sing, New York, published an instructive "Case of Destitution of Moral Feelings" in which she described a prisoner in the following words: "She was a most wonderful liar in word as well as deed. In the former she was if possible more artistical than in the latter."⁷² Judge Edmonds of New York, taking part in a discussion on moral insanity which was held in the New York Academy of Medicine in 1862, stated that he was much impressed and convinced by Ray's *Medical Jurisprudence of Insanity*, and he claimed that he had been the first to recognize the doctrine of moral insanity in legal practice when he was trial judge in the case of Kleim in 1845. Kleim was tried for murder, acquitted on the grounds of insanity (Pliny Earle was one of the witnesses), and committed to the Utica Hospital.

The claims of Judge Edmonds⁶⁰ were not entirely justified. He was undoubtedly an enlightened, progressive judge and very sympathetic to

⁷⁰ *Ibid.*, p. 372.

⁷¹ Cited by Henry Weihofen, *Insanity as a Defense in Criminal Law* (New York, Commonwealth Fund, 1933), p. 49.

⁷² *Am. J. Insanity*, III (1846-47), 129-135.

⁷³ *Ibid.*, XVIII (1861-62), 404 ff.

LEGAL ASPECTS OF PSYCHIATRY

559

psychiatry. In his discussion of Dr. Parigot's paper "On Moral Insanity in Relation to Criminal Acts" he undoubtedly expressed his agreement with the concept of moral insanity but, as Dr. D. Tilden Brown pointed out and as is seen from the 1846 report in the *Journal of Insanity*, Judge Edmonds in his charge to the jury at no time mentioned, or even alluded to, moral insanity.

Evidently the issue remained unsolved in the minds of many psychiatrists as well as in some of those of the very few progressive jurists. The discussion revolved around purely formal points. At times people objected to the term as unfortunate, or to the psychological principle involved, but usually there was more acrimony than critical judgment in the discussion. It is well to emphasize that the law and psychiatry (which latter, in the words of Judge Edmonds, was at the time so advanced that it was "almost a branch of medicine") cooperated in this aspect of intolerance. The editors of the *Journal* insisted that "For all legal purposes, it seems idle to suffer the special defense of moral insanity. The substantive term is sufficient, without the adjective qualification; and the qualification besides is too shadowy, fluctuating, indefinable, and disputable, to be firmly grasped by the law, and fixed by that precise definition which is necessary to make a 'rule of action,' which the law is defined to be, and without which it can not be law."⁸¹

Thus one might be justified in saying that after a very brief moment of liberalism toward psychology the leading psychiatrists of the first few decades after the founding of their Association, with only rare exceptions, reverted to the principle of being servants of the law as it stood. There was little if any discussion of possible reform of the procedural aspects of the criminal law, and less about the spirit of it. The adjective as well as the substantive law was accepted by psychiatry with almost unquestioning compliance, and psychology was barred from intruding into legal chambers.

When James Rogers, a youngster, became intoxicated and committed a murder in the city of New York some time in 1858, the editorial reporters of the *Journal* stated with some heat that there is no such thing as a boy in the eyes of the law.

There are real boys still in some unprogressive countries; on the continent of Europe, and in England. They go to school in Eton yet; but here, all who go

⁸¹ *Ibid.*, XIV (1857-58), 319.

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to school are infants, or young ladies and young men. No boys go. According to the old classification, however, Rogers was, in truth, a mere boy. His associates were of the same stamp. But, as boys will sometimes, they "put an enemy in their mouths to steal away their brains"; and under the influence of the enemy, the boy Rogers, without provocation, stabbed the old man Swanston, with his pocketknife. It resulted in death, and was a murder, for which he was properly convicted and executed.⁸⁰

The psychiatrist stands out here not only as a moralist but as a district attorney, and therefore he becomes skeptical even about his own medical field: "In these days of confusion and looseness of ideas in respect of morals and crime . . . perhaps it is hardly to be wondered at, that when habitual drunkenness is elevated, by some high authorities, to the scientific distinction of *mania*,—to wit, *Dipsomania*,—mere casual intoxication should be deemed a sufficient defense for so venial a crime as murder."⁸¹

The editors congratulated the court for being "worthy of the bench," for the "clearness and legal bearing, of the consummate lawyer and wise judge." The court's

... law cannot be gainsayed; and although we have the humanity to sympathize with the victim whom it consigned to death, we are disposed to think it, in a general aspect, a subject of congratulation, that the prevailing wildness of youth should be checked by an awful example, showing that neither boyhood, nor the freaks of intoxication, are to receive sympathy from legal tri-bunals, or to be indulged in violence and crimes under the favor of a loose and misguided construction of the acts committed under their impulses.⁸²

As the editors put it in connection with another murder case a few years later, "Still, psychological science has its practical value, in aiding the natural sense by which the awards of human justice are directed."⁸³

I have devoted so much attention to and quoted so extensively from the obviously antiquated views which prevailed among psychiatrists for so many years, not in order to judge and still less to condemn them, but rather to appraise them in the light of historical perspective. It can thus be seen that what we call today "the legal aspects of psychiatry" is really a recent development. The cultural and ideological climate of the first half of the century of the Association was in many respects much more progressive than the legal ideology of the early psychiatrists. It was the

⁸⁰ *Ibid.*, XV (1858-59), 259.

⁸¹ *Ibid.*, pp. 258-259.

⁸² *Ibid.*, p. 260.

⁸³ *Ibid.*, XX (1863-64), 417.

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561

task of these early psychiatrists to break down the general prejudice as to mental disease. They assumed the task with earnest humanity and broad sympathy, but there was no general psychology or sociology for them to espouse. And if there had been, it is doubtful whether psychiatry would have been able to adopt them, for only profound understanding of mental disease leads to a grasp of the more pressing and complex psychological and sociological problems. And this understanding was as yet immature; only the physical setting and organization prerequisite for study and ultimate understanding were being perfected in those truly pioneer days of psychiatry.

From this point of view, another phenomenon acquires even greater historical interest. I have in mind Isaac Ray's advanced views and his perseverance in almost single-handed proselytism of the theory of moral insanity. When almost twenty-five years had passed since he published his *Medical Jurisprudence of Insanity*, and it had gone through four editions, he still stood alone. The opinion of the fifteen English judges in the McNaghten case had appeared in the meantime and almost at once had taken hold on American criminal jurisprudence. In later editions Ray incorporated into his book a few telling criticisms of the McNaghten formula, but his position remained isolated.

The *Journal of Insanity* gave Ray a hearing in 1861, when it published his "An Examination of the Objections to the Doctrine of Moral Insanity." Ray had lost none of the strength of his convictions, none of his fire. "Some of those," he said, "most capable, it might be supposed, of appreciating the labors of Pinel, Esquirol, Marc, Georget, Combe, Conolly, Prichard, Winslow, Bucknill and Guislain, do not hesitate to hold up these men as believers in a doctrine destitute of foundation and dangerous to society. If this were a matter of scientific curiosity merely, it might be very properly left to the ordinary progress of knowledge, which finally sets at rest all questions of fact; but its practical consequences to life, liberty and property, require that it should be settled speedily."⁸⁴

Ray's argument is suffused with reproach and reproof:

> It is mortifying to our professional pride to see men who ought to consider themselves as the ministers and interpreters of nature, rejoicing in their glorious office and receiving her revelations in a glad and teachable spirit, on the contrary, turning away from them with a feeling of scorn because they conflict with some preconceived notions of their own. There is brought to their notice

⁸⁴ *Ibid.*, XVIII (1861-62), 115.

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an order of facts both numerous and well-authenticated, exhibiting a common incident or quality of a highly important character. But it affords no satisfaction to them. They do not ask if the facts are true, if the conclusions are legitimately drawn. They care for none of these things. It is enough for them that, in their opinion, the tendency is bad, and upon their short-sighted views of the moral consequences of a scientific conclusion, they presume to decide whether it is true or false."

The central point of Ray's paper, which is twenty-six pages long, is not new. It revolves around the recognition of feeling, or emotions, as susceptible of pathology without the impairment of the intellect. It is a recapitulation of what had been said before about *manie sans délivre* after Pinel introduced the term. The most important aspect of Ray's paper is not so much its clinical and psychopathological exposition as the constant—if more implied than overt—stress laid on the evaluation of the role of human social conduct on the basis of its manifestations and not on the basis of preconceived, affective, or formal morality. Ray refuses to be a psychological scientist who is at the same time a preacher and a judge; there is the spirit of the liberal and libertarian New Englander in his pen. He concludes his paper by saying:

> "If in the course of my remarks I have occasionally manifested a little more freedom of expression than the needs of a strictly scientific discussion require, I can only say in excuse that I did not begin it. Facts may be met by facts, arguments may be met by arguments, but sneers, jibes, sophisms, and conceit, must be encountered with a very different class of weapons."⁸⁸

The discussion of moral insanity lingered on, so to speak, for another twenty years, and then it imperceptibly died out. One of the last treatments of the subject was that of Dr. J. Workman of Toronto.⁹⁰ Dr. Workman's argument was rather tenuous. He objected to the term "moral insanity" and suggested that it be substituted by the term "insane morality." Workman attempted to decide the question of moral insanity by a majority vote, in so far as he pointed out that out of "forty representatives of the United States and Canadian Asylums . . . only two or three declared their belief in the actuality of moral insanity. . . . And now, Mr. President and gentlemen, in closing, perhaps the last address I shall ever have the privilege of uttering in your presence, I would earnestly ad-

⁸⁷ *Ibid.*, p. 126.

⁸⁸ *Ibid.*, p. 138.

⁸⁹ "Moral Insanity—What Is It?," *Am. J. Insanity*, XXXIX (1882-83), 334-348.

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563

monish you against ever, in a court of justice, using the term moral insanity."⁹⁰

When a discussion is alleged to be or is actually being conducted on a high scientific plane and it gradually degenerates into a battle of words, and when attempts begin to be made to solve the problems involved by means of terminological changes and adjustment—one can be safely certain that this discussion was terminated long before the voices of the debaters were silenced, and that no solution was attained. When the subject is dropped, the impression is gained that it was all but an episode of no great consequence and deserves to be respectfully forgotten or, if recalled, recalled as an ephemeral curiosity of an unenlightened age. That this is not always so is overlooked. It was not so as far as the issue of moral insanity is concerned. That it seems to have been forgotten, is true, but its importance is still to be appreciated by our own generation of psychiatrists, whose attitude toward crime has changed so radically in the last twenty-five years.

Aside from its essential importance, we should recall that the question was intimately interwoven with the issue of the irresistible impulse. Judge Gibson spoke of moral insanity, which he equated with homicidal insanity; Judge Edmonds referred to moral afflictions, which he thought somehow affected the rational part of man and his will, so that his impulses became uncontrollable. Judge Shaw made a most solid contribution to the problem. The decision of these judges and of a few like them in the early days of organized psychiatry might well have foreshadowed a new era in what is called criminal justice. The liberal lawyer and the psychiatrist fathomed perhaps more intuitively than intellectually that man is not reason and action alone, and that the secret of man's behavior may well some day be found in his passions, which make him reason without being reasonable and act voluntarily without actually being willing. Yet because this prophetic, intuitive perception seemed to be connected with an attitude of what some called "dangerous philanthropy," because it implied the acceptance that our moral sense might also become perverted, insane—both the jurist and the psychiatrist were inclined to feel that if they followed the logic of their psychological hypothesis they might be suspected by others, or they might suspect themselves, of being tempted to shirk the responsibility of considering man responsible for his crimes.

⁹⁰ *Ibid.*, pp. 341, 348.

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This frequently unspoken anxiety permitted the issue of moral in-
sanity to fade out as one of the focal problems in American criminal juris-
prudence. Judge Gibson, in his decision in the case of the Commonwealth
vs. Mosler (1846), expressed this unspoken anxiety very tersely when he
said: "There may be an unseen ligament pressing on the mind, drawing
it to consequences which it sees, but cannot avoid, and placing it under
coercion, which, while its results are clearly perceived, is incapable of
resistance. The doctrine which acknowledges this mania is dangerous in
its relations, and can be recognized only in the clearest cases."⁶⁰

All this was judicious and good, but the trouble was and is that the clearest of such cases are very obscure and not easily, if at all, demonstrable in the procedural vise of the criminal law in relation to mental illness. Some in the psychiatric profession persevered; they saw in the doctrine of the irresistible impulse the most powerful wedge which could be driven into and split the petrified log of traditional criminal law. But there was no unanimity among psychiatrists on this issue, either. And so it came to pass that when the McNaghten case became the basis of criminal law in relation to the issue of insanity in England, it was "followed by the current of American adjudications," as an associate justice of the Supreme Court of Alabama put it. Twenty-nine states of the Union follow the McNaghten case today.

As to the irresistible impulse, it crept in, so to speak, here and there,
but it never gained the popularity it deserved. In 1863 Illinois recognized
it as an excuse of crime. In 1920 it was still recognized, even if the accused
knew the difference between right and wrong. Some thirty-five years pre-
viously, however, Justice Somerville ruled that even if the accused did
possess the ability to distinguish between right and wrong, but under
duress of mental disease "had so far lost the power to choose between
right and wrong, and to avoid doing the act in question, as that his free
agency was at the time destroyed,"⁶¹ the accused should be deemed not
legally responsible.

Justice Somerville, in this case of Parsons vs. the State (of Alabama) in
1886, incidentally made another pronouncement of prime importance.
The whole question of the relation of insanity to criminal law, the quaes-
tio vexata of psychiatry as Pliny Earle called it, was so difficult not so
much because our psychiatric knowledge was still deficient but primarily

⁶⁰ Quoted by Weihofen, op. cit., pp. 49-50.

⁶¹ *Am. J. Insanity*, XLIV (1887-88), 443.

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565

because the law was rigid under the perennial hold of *stare decisis*. Justice Somerville had some instructive pronouncements on the subject: "The inquiry must not be unduly obstructed by the doctrine of *stare decisis*, for the life of the common law system and the hope of its permanency consist largely in its power of adaptation to new scientific discoveries, and the requirements of an ever advancing civilization. It is not like the laws of the Medes and Persians, which could not be changed."⁶⁰

Yet only seventeen states of the Union recognize the irresistible im-
pulse as a legitimate plea today. Moral rather than scientific sensibilities
are responsible for the prevalence of the right and wrong test—the test
to which Ray objected in 1838, and which Sir James Stephen forty-five
years later considered among the “antiquarian curiosities” of the law.

Dr. Gould, who as early as 1847 wrote a report to the Legislature of the state of New York on capital punishment,⁶² was inclined to believe that the right and wrong test was untenable. He related that a survey in his own hospital had disclosed "that with scarcely an exception, its inmates had clear ideas of right and wrong and of the distinction between them; the same test has been applied in many of the asylums of our country, and the result has been, that not more than ten per cent of the whole number would be exempt from legal responsibility under its operation, and these were so furiously mad as to be manifestly dangerous to be at large."

The editors of the *Journal* in that year were inclined to believe that the right and wrong test was merely an importation from England: "It is singular indeed for judges in this State to instruct juries, not in the words of our own statute, but according to what they may suppose to be the law of England, and to establish as a test of insanity, 'inability to distinguish right from wrong,'—a test alike unknown to our statute, and to truth and justice."

But, say [the state judges], the statute does not define insanity, it does not say what it is, and we cannot trust to the common sense and intelligence of the jury to determine what it is, even if aided by the testimony of medical men, and those practically acquainted with this disease, but we must go back and ascertain what a certain set of men who lived centuries since in an ignorant age, and who knew nothing of insanity, thought to be its symptoms and nature, and whatever they thought and said on this subject, the jury must receive as law. Surely this passes even beyond absurdity.⁶²

⁶² Weihofen, op. cit., p. 51.

⁶³ *Am. J. Insanity*, IV (1847-48), 31-39.

⁶⁴ *Ibid.*, p. 71.

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GREGORY ZILBOORG

These were strong, and enlightened, words. As I have repeatedly pointed out, the first years of the Association were marked by a militant, progressive attitude with regard to the legal aspects of insanity. Crime and the legal relations of the insane were in the forefront of the early psychiatrists' interests, and these interests found expression in the first official steps to establish psychiatric education in medical schools. The first chair of psychiatry in America was established early in the first decade of the Association; theretofore medical jurisprudence had been linked with "chemistry," which meant toxicology, but Samuel M. Smith, who for several years was assistant physician at the Ohio Lunatic Asylum, was appointed to the faculty of Willoughby University at Columbus, Ohio, in 1847 and given the title of Professor of Medical Jurisprudence and Insanity.

As time wore on the editor of the *Journal* himself, this time Dr. Gray, found little quarrel with the criminal statutes and procedures of his time. Gray did not object to the right and wrong test, which ultimately established itself firmly in this country, and he opposed the principle of the irresistible impulse. The right and wrong test remained entrenched in the United States, in England, and throughout the British Empire. In England Russell Gurney's bill of 1874 recommending the recognition of the irresistible impulse was rejected. Several papers presented at the Inter-Colonial Medical Congress at Sydney, N. S. W., in September, 1892, still dealt with this quaestio vexata and were published in the *Journal of Insanity*.

W. W. Godding, speaking before the Psychological Section of the International Medical Congress in Washington in 1887, said: "I shall not live to see it, but he who writes the judicial history of the twentieth century will record the abolition, among English speaking nations, of my Lord Coke's venerable dogma of a knowledge of right and wrong as a test of criminal responsibility in the insane."⁹⁰ Recalling these his own words about one year later, Godding said, "I said then I should not live to see it—says Benedict in the play, 'When I said I would die a bachelor I did not think I should live till I were married.'"

Godding was pleased with a new decision made by Judge Montgomery, in which the latter followed Justice Somerville of Alabama. But Godding's renewed although reserved optimism still stands unjustified by harsh realities. So deeply rooted is the right and wrong test that even in

⁹⁰ *Ibid.*, XLV (1888-89), 191.

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567

cases in which delusions are present, the courts more often than not follow the McNaghten rule and think the accused responsible, if the crime would not be justified were the delusion a real fact. Even such an enlightened and liberal jurist as Justice Cardozo found himself hampered in thought when considering this question in *People vs. Schmidt* (1915). He ruled: "A delusion that some supposed grievance or injury will be redressed, or some public benefit attained, has no such effect in observing the moral distinctions as a delusion that God himself has issued a command. The one delusion is consistent with knowledge that the act is a moral wrong, the other is not."⁹¹

The legal mind insists on measuring even delusions by the yardstick of alleged good reasoning, which the deluded must theoretically employ to satisfy the law. The words of Isaac Ray uttered in this connection over three-quarters of a century before, in one of the later editions of his *Medical Jurisprudence*, are still pertinent and alive:

> This answer [of the English judges regarding delusions] is certainly very plain and it must be reasonable, too, if insane men would but listen to reason! This is virtually saying to a man, "You are allowed to be insane; the disease is a visitation of Providence, and you cannot help it; but have a care how you manifest your insanity; there must be method in your madness. Having once adopted your delusion, all the subsequent steps connected with it must be conformed to the strictest requirements of reason and propriety. If you are caught tripping in your logic; if in the disturbance of your moral and intellectual perception you take a step for which a sane man would be punished, insanity would be no bar to your punishment. In short, having become fairly enveloped in the clouds of mental disorder, the law expects you will move as discreetly and circumspectly as if the undimmed light of reason were shining upon your path."⁹²

He who writes the judicial history of the twentieth century will have to record that in the last decade of the first half of that century my Lord Coke's venerable dogma of a knowledge of right and wrong as a test of criminal responsibility in the insane still seems to stand the test of time, although it has long since failed to withstand the test of scientific psychopathology.

The right and wrong test is not the only persistent leftover of the remote past which the scientific psychiatry of the twentieth century con-

⁹¹ Weihofen, op. cit., p. 41.

⁹² 4th ed., pp. 46-47.

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GREGORY ZILBOORG

tinues to combat with the same energy and hope with which many of the psychiatrists of the nineteenth were inspired. The hypothetical question is another of those "legal monstrosities" which have been and are being combated, thus far without much success. To the psychiatrist the hy- pothetical question is a procedural form of self-deceit, an artifice and incongruity both logical and psychological. It is well to remember that it is usually with the answer to the hypothetical question that the expert witness is turned over to the opposing side, to be exposed and subjected to the iniquities to which the psychiatric expert is traditionally subjected and which are almost invariably displayed by the contending parties for the questionable benefit of the court and jury. The hypothetical question still stands, and so do the iniquities in relation to expert witnesses.

As early as 1853, a serious attempt was made to formulate a rational scientific plan for the organization of expert testimony. William H. Stokes published a paper "On a Court of Medical Experts in Cases of Insanity."¹⁹⁰ But this project (apparently influenced by the practice in France), suggesting that in each state or district "a board of commissioners of experts" be established by law, never went beyond its publication. There were many heated discussions on the subject. The courts were justly accused of not establishing any standard for expert testimony, and for accepting any physician as an expert. The psychiatric profession was not less critical of the behavior of some of its own brethren in court. H. C. Wood, appearing before the Philadelphia Jurisprudence Medical Society, said: "In the eyes of the court these men are all experts, to the play of whose ignorant fancy human property, liberty and life are left almost unprotected. ... Trials involving the question of insanity are fast becoming such a farce in this country that he who sees them as they are, hardly knows whether to laugh or to cry."¹⁹¹

When the subject of expert testimony was brought up at the meeting of the Association in 1888, few words were minced; the problem is still unsolved. It is perhaps quite in order to recall that in 1909 Britton D. Evans, in "Court Testimony of Alienists," spoke in favor of the abolition of the hypothetical question and felt constrained to quote Macaulay's "Essay on Bacon": "We will not at present inquire whether the doctrine which is held on this subject by English lawyers, be or be not agreeable to reason and morality—whether it be right that a man should with a wig

¹⁹⁰ Am. J. Insanity, X (1853-54), 112-122.

¹⁹¹ Ibid., XLI (1884-85), 476.

LEGAL ASPECTS OF PSYCHIATRY

569

on his head and a band around his neck, do for a guinea what, without those appendages, he would think wicked and infamous to do for an empire."¹⁹²

The status of expert testimony, of the hypothetical question, and of the general position of psychiatry in criminal cases was well illustrated by the confusion of psychological and moral tongues and the acrimony at the Guiteau trial in 1881, as well as by the psychiatric discussions which followed the adjudication of the case.

During the more than sixty years which have elapsed since that famous trial a number of changes have occurred. Gradually, almost imperceptibly, the spirit which characterizes the ideas of Isaac Ray was revived—with greater psychological knowledge, better organizational tools, and greater professional *esprit de corps* than existed in the days of Ray.

The Guiteau case, of which a most detailed report appeared in the *Journal*,¹⁹³ demonstrated that psychiatry had not outgrown the need of serving the law in the latter's spirit and procedure, and that the psychiatrist more frequently than not identified himself with the court and jury, if not with some of the contending lawyers. It is this identification that the psychiatrist had to outlive, and in order to outlive it a considerable amount of learning and inner transformation was required. The older attitude persisted, although not in such concentrated form, for some years. As late as 1888 Judson B. Andrews, superintendent of the Buffalo State Asylum, concluded his medico-legal paper with an attack on Spitzka, whom he quotes as saying: "In all cases of inebriate criminals there is mental defect and incapacity either to reason sanely or to control their acts. An inebriate who does criminal acts cannot be of a sound mind. A criminal who is an inebriate is not sane. No inebriate is fully sane and no criminal can be of sound mind long." To this Andrews responds: "By this standard, inebriety and criminality are but the evidences of insanity, and the more demoralized the drunkard and the more hardened the criminal the less responsibility for his acts. Such theories of medical jurisprudence may capture the sentimentalist and the pseudo philanthropist, but they will not commend themselves to the sober judgment of the medical profession, nor satisfy the demands of law and justice."¹⁹⁴

¹⁹² Ibid., LXVI (1909-10), 93.

¹⁹³ Ibid., XXXVIII and XXXIX.

¹⁹⁴ "The Case of Peter Louis Otto—a Medico-Legal Study," *Am. J. Insanity*, XLV (1888-89), 220.

570

GREGORY ZILBOORG

And even more than twenty years after these words of reproof were written, we find Sanger Brown reporting (1909) one of his experiences in court in a case of arson, where the defendant, a woman, pleaded insanity: "The whole community, pretty much, with the exception of the State's attorney and one or two of his assistants, were in favor of the defendant.... The lawyer who defended her was postmaster of the country town, and had the local profession testify in her favor, so that if I had been denied the privilege of taking up the evidence witness by witness and analyzing it in my own way before the jury, the defendant undoubtedly would have been acquitted. But after a few hours of patient explanation I was able to turn the tide and the defendant was promptly convicted."¹⁰⁴

Sanger Brown's remarks bring into focus the two most salient problems which revolve around the psychiatrist's attitude toward crime and the criminal. The first problem is: how much should a psychiatric expert in a criminal case be for or against any side? Is not his professional calling of such a nature that he should at least try to remain neutral? The second problem: to what extent does the special knowledge of the psychiatrist allow him to remain an adherent of the old system of purely primitive justice?

The first problem, the one involving the partisanship of the expert, or at least the willingness of the psychiatric expert to join one or the other party in the procedural constellation of a criminal trial, remains unsolved. Consequently, the problem of expert testimony, the problem of whom the court, the prosecution, and the defense may consider an expert, the problem of how to avoid the appearance in a criminal trial of those whom Clarence Darrow called "testifyers" with all the scorn and civic exasperation of which that great lawyer was so capable—all these problems also remain largely unsolved.

As for the second question, that experienced and earnest psychiatrists seek to snatch the confirmed criminal out of the hands of justice is a common belief, and it feeds the general suspicion of and even contempt for the psychiatrist on the part of the public and judiciary. Apparently the prejudice inherent in this belief is responsible for the propensity to use "testifyers" instead of scientifically qualified men. That this prejudice against psychiatrists is not justified by facts is amply proved by the report

¹⁰⁴ Am. J. Insanity, LXVI (1909-10), 100.

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571

of the Committee on Medical Expert Testimony, which was submitted to the Association in 1910 at its sixty-sixth annual meeting.

In reply to inquiry on this point the superintendents of 75 out of 108 hospitals in this country and Canada, with a population of over 83,230 inmates, report but seven criminals who had been charged with homicide who had been improperly adjudged insane and sent to hospitals for the insane during the past two years. Superintendents of special institutions for the criminal insane report that very few criminals of any kind are wrongly adjudged insane and committed to their institutions—not a dozen in twenty years according to Dr. Lamb of the Matteawan institution for this class—while the period of hospital residence of discharged cases shows that *they underwent a longer confinement as insane patients than would have followed had the same men been convicted and sent to prison.*¹⁰⁶

The report of the Committee, which was headed by Henry R. Stedman, observes that "the legal injustice in this matter is that the insanity defence is not by any means employed as often as it should be. In other words, much more harm results from *lack of expert testimony* than from its defects." It also cites "MacPherson, a Scotch authority," who believes that "hitherto the law has certainly erred on the side of severity and has hanged ninety-nine irresponsible persons for one responsible person who has escaped on the plea of insanity." A striking fact is related: "Dr. Allison has reported that 53 per cent of 179 insane persons who had committed murder and who were under his charge at the asylum for the criminal insane at Matteawan were received from prisons to which they had been sentenced for life."¹⁰⁸ Opposition to the right and wrong test of legal responsibility and to the hypothetical question is reiterated. Little, the report says, is expected from purely procedural reform. The profession itself should assert its needs and carry out the necessary reform. Sir James Stephen, who was of the same mind, is cited.

There is a reminder of the Leeds method of preliminary consultation by medical witnesses on both sides of the case as to its status. This suggestion, made in 1910, still stands as one of the unfulfilled, fondest wishes of American psychiatry. In 1904 Stedman reported the use of this method of consultation among the experts in a case tried in Massachusetts, as related by Mercier. Twenty years later, at the trial of Leopold and Loeb,

¹⁰⁶ *Ibid.*, LXVII (1910-11), 178; italics mine.

¹⁰⁸ *Ibid.*, p. 179.

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GREGORY ZILBOORG

the "experts for the defense," Drs. White, Healy, Glueck, and Hamill, prior to making their reports suggested that a consultation with the alienists for the state be held, but State's Attorney Crowe could not see his way clear to accepting this suggestion.

In its report of 1910 the Committee on Medical Expert Testimony cited the laws of Maine, New Hampshire, and Vermont to demonstrate the value of preliminary examinations of criminals in mental hospitals, "under the close and constant observation of trained physicians and nurses," and observed that this procedure "is especially advantageous in notorious capital cases." This procedure, the report stated, "is taking root in Massachusetts under recent enactments"; eleven years later the Briggs Law was passed in that state.

"We are in favor," concludes the report, "of any legislation that will secure a definite standard of qualification for medical men giving expert testimony."

The whole report of the Committee on Medical Expert Testimony reflects a spirit of greater scientific clarity than Sanger Brown's remarks about the influence which he, because of the special peculiarity of the law of Illinois, was permitted to exert on the jury to secure the conviction of the woman tried for arson. Psychiatry very early began to express its suspicion that primitive justice is neither efficacious nor just, and that the scientific and enlightened psychiatrist cannot remain among its adherents.

As far back as 1857 there were a few, though isolated, voices charitable to the criminal in general and to the inebriate in particular. Edward Jarvis, for instance, thought that some "insane transgressors" were punished more than sane convicts. Again I must refer to Isaac Ray, whose project of a law (1850) which he prepared at the request of the Association states that "habitual drunkenness would subject an individual to all liabilities and disabilities of insanity."¹⁰⁷ The same project of a law de-nies that a jury is competent to decide the question of insanity. All these ideas were mature in Ray's mind in 1850, and only gradually matured in the minds of the profession as a whole.

At the turn of the century the growing interest in juvenile delinquency finally culminated in the establishment of juvenile courts. The criminal as well as the delinquent became the subject of careful study. The attitude toward the whole problem of crime changed under the impact of

¹⁰⁷ *Ibid.*, VII (1850-51), 92 et seq., and 215-233.

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573

the newer knowledge coming from such nonmedical quarters as sociology and anthropology; the medical contribution to this change came in the second decade of the twentieth century, from the trend of psychoanalytic thought which had reached America some ten years before. Another di-rection in which a definite change occurred was in the various procedural reforms in matters where psychiatric problems were involved.

At the present juncture it is difficult if not impossible to trace in detail the various forces which coöperated in bringing about the changes to which allusion has just been made. It is not less difficult to list the various practical results. Suffice it to say that the first two decades of the twentieth century were stormy in many respects. The economic, social, and cultural shifts produced by the forces of an ever-approaching world conflict, the conflict itself in the form of the first World War and the revolutions which followed it, the increasing consciousness of the value of the indi-vidual, the ever-growing awareness of the individual's intimate depend-ence on the social forces around him—all these factors combined found an expression in our psychiatric growth. In more than one respect psy-chiatry invaded the social field, and the practical sociologist began to look to psychiatry for some answer to many vexing questions. Under the cir-cumstances it was but natural that psychiatry should "invade" the field of criminology.

The influence of psychiatry began to show itself as early as the eighties of the last century, perhaps even a little sooner. When Sir James Stephen's *History of the Criminal Law of England* appeared in 1883, it bore the earmarks of psychiatric influence. Unlike the jurists of the past, "Mr. Justice Stephen of the Queens Bench" was not trying to recapitulate an-cient formulae. While he devoted only eighty pages to insanity in his great treatise, he prepared himself well for this chapter by reading most of the leading English and German psychiatric authorities of his day.

On June 17, 1885 Walter Channing, for the Committee on Bibliography, presented a comprehensive review of Stephen's *History*. Chan-ning pointed out that in Stephen's work there was no longer the old rigidity about the right and wrong test, that the author recognized the irresistible impulse. The book was close to human problems, or at least it was not centered on the purely abstract propositions which considered criminal acts without considering the personality of the criminal involved.

That man's behavior cannot be separated from man himself was poign-

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GREGORY ZILBOORG

antly felt if not fully expressed. The first articulate expression of this
principle was voiced by William A. White, a man with all the external
attributes of traditional psychiatry—a superintendent of a mental hospi-
tal (St. Elizabeths), a good administrator, and an old and active member
of the American Psychiatric Association. White was imbued with the
spirit of the times and with the newer trends in psychopathology, soci-
ology, and penology. In his *Insanity and the Criminal Law*, which
appeared in 1923, White unmasked the psychological motivations of
criminal justice. He demonstrated the aggressive, revengeful motives
of the criminal law; he pleaded for psychological determinism, for the
careful and profound individualization of each case of crime; he decried
the "separation of the act from the actor." White cited criminal cases
which he himself had studied in great psychological detail and with pro-
found, humane understanding. He wanted to abolish the hypothetical
question and suggested that every future criminal lawyer serve an intern-
ship in a prison, in the same manner that a doctor serves in a hospital.

Almost eighty years before White, in 1845, the reviewer of Taylor's *Medical Jurisprudence* had said, "We feel the urgent necessity of assimilating the language of the lawyer and the physician in their investigations and in their decisions. Unless each fully understands and appreciates the other, and in particular in the use of so important a matter as the various forms of insanity, we must hope in vain for improvement."¹²⁰

When William A. White spoke before the joint session of the Judicial Section and the Section of Criminal Law and Criminology of the American Bar Association in 1927, the title of his paper was "The Need for Cooperation between the Legal Profession and the Psychiatrist in Dealing with the Crime Problem."¹²⁰ It was coöperation in fact rather than understanding of the language only that was stressed. "The psychiatrist in his contact with the legal machinery finds that the methods of procedure are such as to make it well nigh impossible for him to mobilize his knowledge in any useful way for the assistance of the courts in dealing with the individual problems before him." Here again stress is laid on individual problems, and White reiterates his objections to "the law with its emphasis upon the act rather than the actor."

"The question of responsibility carries with it a metaphysical implica-
tion and the more one thinks of it the more one feels quite incapable of

¹²⁰ *Ibid.*, II (1845-46), 81.

¹²⁹ *Ibid.*, LXXXIV (1927-28), 493-505.

LEGAL ASPECTS OF PSYCHIATRY

575

answering it.” William Healy arrived at this same conclusion in his clas-
sic *The Individual Delinquent*, which appeared in 1915.

"The remedies upon which the law seems to repose are hangovers, as it were, of a theological age," insisted White. Crime is subject to social laws, and social laws are natural laws. Newton did not make but found the law of gravity; legislatures should not make but find the law in the same manner. There should be no fear of violating traditions; the institution of juvenile courts was a violation of a tradition. Criminals should be studied and treated, and not merely kept imprisoned. "Our prisons contain great masses of humanity, and within their walls are incarcerated the solutions of most of our most pressing crime problems, if we had but the wisdom to interpret the meanings that are incarcerated in the lives of the prisoners."¹²⁰

Similar views were expressed by Bernard Glueck, who worked at Sing
Sing Prison and who was one of the pioneers of the newer criminology.

The name of Sheldon Glueck stands out in the field of legal thought on this problem. His classic *Mental Disorder and the Criminal Law*, which appeared in 1925, is soundly based on the knowledge modern psychiatry has at its disposal. It contains a detailed analysis of the old legal fallacies and is replete with judicious suggestions for creative reform of the criminal law.

Just as the nineteenth century through its cause célèbre, the Guiteau case, demonstrated the essential characteristics of the old, so did the twenties of the current century—which seem to have been the golden years of awakening in the field of psychiatric criminal jurisprudence—have a cause célèbre revealing the modern trends. This was the case of Leopold and Loeb, the two youngsters under twenty who killed a boy of twelve to experiment and to verify their paranoid, Nietzschean philosophy of the permissibility of a perfect crime. Clarence Darrow was the chief defense counsel; his summation of the case is well worth re-reading, for it is the best and most dramatic exposé of all the evils of expert psychiatric testimony. White, Glueck, and Healy were the chief expert witnesses. Karl Bowman and Harold S. Hulbert made the preliminary study of the two defendants and prepared the preliminary clinical report. The work of the experts in this case was the nearest approach we have to a complete scientific, psychiatric, criminological job.

¹²⁰ *Ibid.*, p. 501.