Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 1893 
 
 in riEnoRY OF 
 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daughter 
 A. IW. BOARDMAN and ELLEN D. WILLIAMS 
 
Cornell University Library 
 RA 1001.M483 1886 
 
 Papers read before the Medico-legal Soci 
 
 3 1924 017 516 315 
 
 GJnnwll &aui ^rlyonl library 
 
The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017516315 
 
PAPERS 
 
 READ BEFORE THE 
 
 MEDICO-LEGAL SOCIETY 
 
 OF NEW YORK, 
 
 FROM ITS ORGANIZATION. 
 
 THIRD SERIES. 
 
 1875 to 1878. 
 
 REVISED EDITION. 
 
 Printkd by a Committee of 
 THE MEDICO-LEGAL SOCIETY. 
 
 1886. 
 
Entered according to Act of Congress in the year 1886, by 
 
 THE MEDICO-LEGAL SOCIETY OF NEW YORK, 
 
 in the office of the Librarian of Congress at Washington, D. C. 
 
PREFACE. 
 
 During the first term of Mr. Clark Bell as President of the 
 Medico-Legal Society in the years 1872 and 1873, it was de- 
 cided upon his recommendation to publish in book form the 
 papers read before the Medico-Legal Society, and thus per- 
 manently preserve the more important labors of the body. 
 
 Volume first of the series of Medico-Legal papers was pub- 
 lished November 1874, which embraced most of the papers of 
 importance read before the Society up to the fall of 187 1. 
 
 It was intended at that time to publish the succeeding 
 papers (series two) the next year, but the retirement of Mr. 
 Bell from the chair, and other circumstances, prevented, 
 until the year 1S82, when, upon his re-election as President, 
 the original purpose was ordered carried out by the Society, 
 and series two of these papers was published, which em- 
 braced many of the more important papers, read before the 
 Society up to the Fall of 1874. 
 
 The present volume of the series, is a continuation of the 
 ame general plan of publication, up to the Spring of 1878, 
 embracing, also, a few of the earlier papers, which the com- 
 mittee had been unable to obtain, in time for the preceeding 
 volumes. The Committee of Publication has been enlaiged 
 and now consists of Mr. R. S. Gurnsey, Chairman, Mr. Clark 
 Bell, Mr. Richard B- Kimball, and Dr. Edward Bradley. 
 The committee have been instructed by the Society to con- 
 tinue the publication of portraits of some of the authors of 
 papers, officers, and distinguished Medical Jurists and mem- 
 bers of the Society The sketches furnished are by membeis 
 of the Commitiee, with the exception of that of Dr. Conolly, 
 which is contributed by Henri' Mandsley, M. D., of London, 
 that of Dr. George M. Beard, by Dr. A J. Rockwell of New 
 York, and that of Dr. Swayne Taylor, by Thomas Stevenson, 
 M. D. of London. 
 
 New York, July, 1886. 
 
CONTENTS 
 
 PAGE 
 
 Portrait and Sketch of Clark Bell, Esq., Frontispiece 
 
 Principles of Legal Responsibility applied to the Insane, by James J. 
 
 O'Dea, M. D i 
 
 Monomania as effecting Testamentary Capacity, by Edward Patter- 
 son, Esq 13 
 
 Portrait and Sketch of Dr. John Connoly .. 362 
 
 The Diagnosis of Hanging, by Ambrose Tardieu, M. D - 4° 
 
 The Proper Status of the Insane and Feeble Minded, by John Ordron- 
 
 aux, Esq., L. L. D 47 
 
 Malprnclice in Surgery, by Frank H. Hamilton, M. D 97 
 
 Penal Laws of Suicide, by R. S. Guernsey, Esq 109 
 
 Retiring. Address of the President, Clark Bell, Esq. (1875) 115 
 
 Portrait and Sketch of Hon. Charles P. Daly 133 
 
 Epilepsy with Mania, by A. O. Kellogg. M.D 161 
 
 Portrait and Sketch of Dr. R. Swayne Taylor _" 229 
 
 Loss of Consciousness, by Prof. Frank H. Hamilton, M. D 206 
 
 Milk in its Medico-Legal Aspect, by Prof. R. O. Doremus, M. D 222 
 
 Mysterious Disappearances and Presumptions of Death, by Wm. G. 
 
 Davis, Esq __■ 229 
 
 School Room Poisoning in New York, Report of a Committee.. 249 
 
 Portrait and Sketch of Wm. G. Davies, Esq. 269 
 
 Railway Injuries of the Spine, by Prof. Wm. A. Hammond, M. D 269 
 
 Progress of Medico-Legal Science in America, by Jas. J. O'Dea, M. D. 286 
 
 Portrait of Dr. Geo. M. Beard and Sketch of Life 315 
 
 A new theory of Trance, its bearings on human testimony, by Geo. M. 
 
 Beard, M. D 315 
 
 Portrait and Skeich of Dr T. Romeyn Beck 97 
 
 Personal Identity, by Appleton Morgan, Esq _ 363 
 
 The Plea of Insanity, by Alfred L. Carroll, M. D 387 
 
 Union of Public Charities and Corrections, by Sam'l A. Raborg, M.D. 403 
 
 Portrait and Sketch of Hon. E. W. Stoughton 420 
 
 Testamentary Capacity, by Isaac Ray, M. D 421 
 
 Portrait and Sketch of Wm. A. Beach 440 
 
 Moral Responsibility, by Morris Ellinger, Esq 441 
 
 Sanitary Interest of the Public Schools of New York, Report of a. Com- 
 mittee 450 
 
 The Medico-Legal Society, Retiring Address of F. H. Hamilton, Pres. 460 
 
 Mental Responsibility, by E. C. Mann, M. D 477 
 
 Expert Testimony, Its Nature and Value, by Jacob F. Miller, Esq 493 
 
 Report of Committee on Intoxicating Liquors _.....- 511 
 
 The Mode of Inflicting the Death Penalty, by John H. Packard, M. D 517 
 The Relation of Law and Medicine to One Another and to the Public, 
 
 by Cephas Brainard, Esq 523 
 
Clark Bell, Esq. 
 
 Clark Bell, a brief sketch of whose career, we now present, 
 is still in the full vigor and strength of manhood. He was 
 born 54 years ago in Jefferson County, N. Y. He fitted for 
 college at Franklin Academy, N. Y., and was prepared to 
 enter Yale at 17, but was prevented from doing so, by the 
 delicate state of his health. His physicians prescribed a 
 course of hardy out-of-door exercise, which was pursued with 
 a most happy result. He then studied law, and at the age 
 of 21 was admitted to the bar, and began practice in Ham- 
 mondsport, N Y., succeeding the late Morris Brown, with 
 whom he had studied. On the retirement of Lieut. Gov- 
 ernor Robert Campbell, Mr. Bell removed to Bath, Steuben 
 County, where the firm of McMaster & Bell was formed, 
 which at once entered upon a large and lucrative practice. 
 The result was, to so far give Mr. Bell prominence in his pro- 
 fession, that he was retained by the Promoters of the Union 
 Pacific Railway Company, as their Attorney and Counsel, and 
 he thereupon in 1864, removed to the city of New York. Mr. 
 Bell had charge for the company, of its legislation before 
 both houses of Congress, and prepared the text of the net, 
 which passed (hose hodies, under which the road was con- 
 structed 
 
 Since his removal to New York, Mr. Bell has been engaged 
 in a large number, of important legal cases. It is not, how- 
 ever, as a distinguished lawyer, that we should speak of him, in 
 this volume, but as a member of the Medico-Legal Society, 
 which he joined in 1870. Since that time, notwithstanding 
 his engagements in professional life, he has, more than any 
 other American, rendered important service, to the great cause 
 of Medical Jurisprudence. Here,in passing, we may say, that 
 he has at different periods, served the Society six years as its 
 President. But in all the vears since he became a member 
 
CLARK BELL, ESQ. 
 
 Mr. Bell has devoted himself enthusiastically, to its 
 interests. He made the first collection of books for its use, 
 which embraced works in English, French, and German ; in 
 fact, he was the founder of its library. By his active zeal, he 
 brought the Medico-Legal Society of New York, into a 
 deserved prominence, with the professions of law and medi- 
 cine and with the public. What we consider as a still larger 
 measure of usefulness, was the founding of the Medico-Legal 
 Journal, in 1883, of which Mr. Bell was elected,and has since 
 continued editor, and which was the first journal of its kind, 
 ever published. 
 
 To Mr. Bell, more than any person' in this country, in our 
 judgment, is due the praise, of bringing the professions of 
 Law and Medicine, into more intimate, social, scientific, arid 
 friendly, relations. He has certainly, by his efforts, aroused 
 in the best minds of both professions, a lively interest in ihe 
 too much neglected study, of Medical Jurisprudence. We 
 hesitate to speak more particularly of Mr. Bell, since he is 
 still engaged, in the most active manner, in those important 
 labors, which it seems to us, have with him, but just begun. 
 His literary efforts in this connection, have been very valu- 
 able. These include his inaugural and retiring addresses, 
 during the six years, he was president of the Society, which, 
 among other important topics, give a careful report, of the 
 progress of forensic medicine, during that period. Besides 
 these valuable contributions, we mention fche following 
 papers, as specially worthy of notice : 
 "The Coroner System and Its Needed Reforms." 
 "Suicide and Legislation." 
 "The Rights of the Insane." 
 "Madness and Crime." 
 " Shall We Hang the Insane Who Commit Homicide ?" 
 
 Mr. Bell is an honorary member of the Societe de Medicine 
 Mentale of Belgium, a Corresponding Member of the An- 
 thropological. Society of Brussels, Belgium, of the Medico- 
 Legal Society of Massachusetts, and is in correspondence, 
 with scientific men of all countries, on current questions 
 of public interest, relating to Medical Jurisprudence. He 
 has recently been named, as a member of the International 
 
CLARK BELL, ESQ. 
 
 Committee; to represent North America, by the Conference 
 held at Antwerp, September, 1885, to consider the best basis 
 for international statistics regarding the Insane. 
 
 Mr. Bell is a man, of remarkable mental activity. He 
 possesses a physique so sturdy, that it renders him capable 
 of an almost unlimited amount, of intellectual labor. He 
 seems never to spare himself, no matter in what engaged, but 
 works without stint or intermission, till his work is accom- 
 plished. He is in the very zenith of vigor and energy, and 
 may reasonably look forward to a long career of active use- 
 fulness. R. B. K. 
 
PRINCIPLES OF 
 
 LEGAL RESPONSIBILITY, 
 
 Applied to the Insane. 
 
 By JAMES J. O'DEA, M. D. 
 
 In archaic times, at the sources of the mingled stream of 
 legal tradition and usage familiar to us at the present day, 
 the theory of punishment was simplicity itself. Crimes in 
 the modern technical sense of violations of State and social 
 obligations were unknown, and the entire field of wrongs was 
 conterminous with what is at present understood by the word 
 tort or delict. 
 
 There was a time when punishment for a tort could have 
 been lawfully inflicted by the aggrieved person himself. But 
 at a later date in the progress of jurisprudence, a representa- 
 tive of social order was stationed between the contestants, 
 and delivered judgement after a due hearing of the evidence 
 offered by both sides. This judgement had two peculiarities, 
 — it was ex post facto, and it was believed to be inspired by 
 Heaven. We recognize here the Themis of primitive society. 
 
 With the decay of autocracy and the growth of an aristocratic 
 class, the Themis disappeared, giving place to a body of cus- 
 tomary law or collection of decisions drawn from customs the 
 original scope and meaning of which was known to only a 
 small minority in each community. In its turn this jurispru- 
 
 Read before the Medical Legal Society, 
 
2 PRINCIPLES OF 
 
 dence of custom shared a similar fate Transcending the pow- 
 ers of memory, it was replaced by a code. Then the law be- 
 came fixed and knowable. No longer at the mercy of auto- 
 crats speaking by pretended inspiration, nor left to the judge- 
 ment of an oligarchic court, it was written down like the 
 decalogue of Moses, the laws of the Brahmins, the Roman 
 codes. 
 
 Here we reach that stage in civic growth at which the idea 
 of a commonwealth begins, and, dating therefrom, social ag- 
 gregates had established rules on the impartial administration 
 of which their existence as organized bodies depended. In 
 some countries, Hindustan for example, the code found soci- 
 ety half-way, as it were, on its career of development, and 
 held it there ever afterwards like a fossil embedded in sedi- 
 mentary rock. But in other and more fortunate lands it did 
 not interfere with the natural course of developement, and, 
 consequently, while the life of the latter is noted for action 
 and progress, that of the former has little to show save stagna- 
 tion or even retrogression. Instead of society having been 
 obliged to conform, in progressive communities, to the letter of 
 the law, the law itself was altered from time to time to suit 
 the progress of society, and this alteration was effected by a 
 system of interpretation which adapted laws to the peculiar 
 circumstances of individual cases. 
 
 But I must not attempt to trace in detail the successive 
 modifications by which codes were adapted "to the phases of 
 progressive societies. Suffice it to have briefly outlined the 
 chief features of the developement through which rude forms 
 and modes of archaic law have been transmuted into our mod- 
 ern judiciary procedures. Codes are the earliest evidence we 
 have of the consent of societies to be ruled according to fixed 
 principles of right. As already observed, they have under- 
 gone changes intended to suit them to altered times and cir- 
 cumstances. One of these changes has been alluded to al- 
 ready, but another of much greater importance to our present 
 inquiry will appear as we proceed. 
 
 As bearing directly on the principles of legal responsibility 
 in their application to the insane, I must refer to some obser- 
 vations by Dr. William A. Hammond in his recent work on 
 
LEGAL RESPONSIBILITY. 3 
 
 "Insanity in its Relations to Crime." This excellent mono- 
 graph is unsatisfactory to me where it treats on the principles 
 of penal legislation. "Laws," it declares, "do not always 
 rest, in fact cannot always be based upon the principles of ab- 
 stract justice." True; and, doubtless, it would be inaccurate 
 to say that every law operates justly in regard to every indi- 
 vidual, but nevertheless it may be confidently affirmed that 
 the body of law is based on principles of abstract justice, or 
 ethical principles, meaning by ethical principles such as are 
 abstract and regulative of conduct apart from self-interest and 
 that social interest denoted by the word utility, cr the phrase 
 " the greatest good of the greatest number." '' Thou shalt 
 not steal," "thou shalt not kill," are laws based quite as much 
 on the abstract principle that theft and killing are wrong, as on 
 the a posteriori experience that they are injurious to society. 
 It is true that, as Dr. Hammond remarks, laws are sometimes 
 unjust to individuals ; and this truth is so well recognized that 
 the principle known as equity has been instituted for the pur- 
 pose of so softening their rigor as to make them considerate and 
 merciful where the exercise of consideration and mercy are re- 
 quired by the circumstances of individual cases. But equity 
 is not statute law; it is rather the just interpretation given to 
 statute law by the good sense of its administrators. The chief 
 difficulty in applying laws to particular cases is due to the 
 fact that laws, on the whole are based on abstract principles, 
 a consideration too often overlooked by people who blame 
 them for their sometimes promiscuous way of dealing with 
 transgressors. For though based, in part at least, on princi- 
 ples of abstract justice, applied laws have to do with practical 
 affairs and should be adapted as much as possible to the cir- 
 cumstances which modify the character of actions. Although, 
 for instance, all murder is killing, all killing is not murder, 
 there being degrees of homicide depending on actual experi- 
 ence of the conditions under which it is committed. 
 
 Now, of all these conditions intention is the one which qual- 
 ifies first and chiefest the character of all acts. To make any 
 act criminal, there must be an intention on the part of its 
 agent to commit it; and besides, intention and act must stand 
 in the mutual relation of cause and effect. On this point the 
 
PRINCIPLES OF 
 
 remarks of the able writer above named are open to the ob- 
 jection that they do not distinguish between intention and motive. 
 In commenting on declarations of courts of law to this effect, 
 that "where there is no intention to commit a criminal of- 
 fense no such offense, in the legal acceptation of the word, 
 has been committed," he thinks it is dangerous to allow such 
 a principle to obtain lest it place society " at the mercy of any 
 individual who, with strong reformatory ideas which he 7nay 
 think it his duty to carry out, stops at nothing in the way of 
 his good intentions." Accurately speaking, the criminal qual- 
 ity of an act has nothing to do with the reformatory ideas of 
 any person, though these, when ascertained to be the real mo- 
 tives of his act may serve to mitigate the degree of its crimi- 
 nality. But that which imparts the quality of criminality is, 
 first and most essentially the intention to do an unlawful act, 
 and the doing it in immediate or remote connection with such 
 intention. 
 
 The essence of a criminal deed is therefore intention ; the cir- 
 cumstance which qualifies its criminal character is motive. 
 Absence of intention exempts from legal penalty. Absence 
 of motive does not confer this exemption, but when motive of 
 the required kind is present it will lessen, in proportion to its 
 kind, the degree of guilt. 
 
 Now, among the sum total of persons who are exempt 
 from legal punishment we find the two following, namely, in- 
 fants and the insane. Infants and the insane enjoy this im- 
 munity not because of their infancy or insanity/,?/- se, but be- 
 cause it is inferred from their State of infancy or insanity 
 that they have not been guilty of unlawful intention. Such 
 inference however is primz facie and provisional, and does not 
 bar the admission of evidence to show that a particular infant 
 or insans person had mmtal capicity enough to intend the 
 act in the full legal sense of the word, — to intend to do it, and 
 to know that its commission is a breach of law and a punish- 
 able offencs. Whenever this is proved in the case of any in- 
 fant or alleged lunatic, the rule of exemption is not applica- 
 ble to him. 
 
 There is, however, one class of persons in whose behalf it 
 is contended that, however capable of unlawful intent, they 
 
ieoal responsibility: t 
 
 should not be neld legally responsible ; and .for such a spec- 
 ial plea is advanced. This plea, I need hardly say, is irresis- 
 tible impulse. It means that the person concerned was "ruled 
 by one motive with such absolute sway that there " could have 
 been "no room for the influence of any other." [Mill, J. S. 
 Logic, p. 524, Am. Ed. 1867 ] It rests on a basis of reasoning 
 like the following: Granted that the person knew he was 
 doing an unlawful act and would be punished therefor, yet 
 at the time of doing it he was mastered by an orgasm so over- 
 whelming that he had no power of self-control. 
 
 The question at once arises, is there such a state ? After 
 which, supposing its existence conceded, comes the further 
 inquiry as to whether it is a valid ground of exemption from 
 legal responsibility ; for, as you will observe, the unlawful 
 act of a person so situated has the essential requisite of crim- 
 inality, — intention, and still its non-criminal character is as- 
 serted by many respectable authorities. 
 
 Is there a state of mind such as that meant by the expres- 
 sion "uncontrolable impulse." Authorties are not all agreed 
 in their answers to this question. Some doubt if it often ex- 
 ists even among the insane Geisinger, for example, says 
 that, "Few of the acts of the insane have the character of 
 forced, purely automatic movements ; in mania also, accord- 
 ing to the testimony of individuals who have recovered, many 
 of the wild desires could often be restrained : the criminal 
 deeds of the insane are not generally instinctive." [Mental 
 Pathology, Sydenam Ed., 1867, §47.] Dr. Hammond also 
 doubts "if it ever exist in the insane." All he feels at liber- 
 ty to concede is that the insane "have impulses which are al- 
 most irresistible." [Hammond, op. cit, pp. 71, 72] On the 
 other hand a great legal authority says, " It would be absurd 
 to deny the possibility that such (irresistible) impulses may 
 occur, or the fact that they have occurred, and have been 
 acted on. The only question which the existence of such im- 
 pulses can raise in the administration of criminal justice is, 
 whether the particular impulse in question was irresistible as 
 well as unresisted." [Stephen, English Criminal Law, Lon- 
 don, 1863, p. 91. j It is pretty certain that the insane can us- 
 
6 PRINCIPLES OF 
 
 ually control their actions, and it is equally certain tnat on 
 some occasions they can not. 
 
 But, excluding the question of insanity for the immediate 
 present, — whether a given impulse is resistible or not can be 
 known to its own subject alone. No outsider can determine 
 it to any more than an approximate degree, nor by any other 
 than the method of observation and inference. It is therefore 
 best to forego attempts to discover its irresistibility by ab- 
 stract thinking, and limit ourselves to a study of it in the con- 
 crete by more simple methods. We may proceed thus : Men 
 are prompted to do evil and good, and with a large number of 
 men the habit is formed of obeying impulse and passion. 
 Good people subdue their desires, keep them in subjection, 
 and, after a struggle of variable length, feel the inclination to 
 do evil fade away before the steady purpose to follow in the 
 right path. On this point an eminent writer of the present 
 century has remarked : " The difference between a bad and a 
 good man is not that the latter acts in opposition to his strong- 
 est desires : it is that his desire to do right and his aversion to 
 doing wrong are strong enough to overcome, and, in the case 
 of perfect virtue, to silence any other desire or aversion which 
 may conflict with them. It is because this state of mind is 
 possible to human nature that human beings are capable of 
 moral government ; and moral education consists in subject- 
 ing them to the discipline which has most tendency to bring 
 them into this state." [Mill, J. S. •' Examination of Sir W. 
 Hamilton's Philosophy," 3d Ed., p. 560.] The reverse of alt 
 that Mr. Mill writes is true of the evil doer. He is the slave 
 and instrument of his bad passions. His own gratification is 
 his paramount desire. 
 
 The newspapers lately gave an account of a very revolting 
 crime. An adult negro entered a house wherein its occupant's 
 daughter was alone, and outraged her. He seized the terri- 
 fied girl, announced his intention to her, and declared he 
 would accomplish it though she were to suffer death at the very 
 next moment. Now. what is the meaning of this ? Here is a 
 brutal man who braves the law with full knowledge of the 
 criminality of his cond ict and of its consequences to himself. 
 Here if anywhere is a case of uncontrollable impulse ; that is 
 
LEGAL RESPONSIBILITY. 7 
 
 of impulse which alJ ordinary motives did not control. Were 
 we to base our decision on the mere character of an act, we 
 could not help admitting that this particular act was uncon- 
 trollable ; and, if we held that uncontrollable impulse is a va- 
 lid plea in bar of punishment, we would be bound to acquit 
 this negro. 
 
 It must be conceded that there is no prima facie difference 
 between the mental state of this negro when he committed the 
 crime above mentioned, and the mental state of the morally- 
 insane ,• nay, that there is no apparent difference between the 
 manifestations which preceded the act of the former, and those 
 which not seldom precede unlawful acts among the latter. 
 Very few crimes are committed on the spur of the moment — 
 immediately on the first promptings of the criminal desire ; 
 and for many reasons, such as the undeveloped strength of 
 the motive, inopportune place, time and circumstances. 
 Meanwhile the desire becomes a dominant idea absorbing the 
 attention of its subject and changing his manner. He is pre- 
 occupied ; he mutters to himself ; at times he uses emphatic 
 language and gestures ; he seeks solitude and the companion- 
 ship of his own thoughts. These are some of the indications 
 in which courts of law see evidence of insanity, and the ma- 
 jority of persons who had observed them in a man would de- 
 clare him to be insane even in the legal sense. 
 
 There is, however, a good practical ground of distinction be- 
 tween the irresistible impulse of sanity on the one side and 
 insanity on the other, and it is this : The irresistible impulse 
 of sanity has this special feature, that there was time in its 
 growth when it could have been resisted. At that time the 
 man was fully conscious of the nature and consequences of 
 the deed suggested to him, — of its illegal character and of his 
 own liability to punishment should he commit it. The his- 
 tory of a sane man who is at length possessed by an irresisti- 
 ble impulse, generally shows that he has surrendered himself 
 after at most a few weak struggles to the dominion of his pas- 
 sions. At this point his conduct follows a conspicuous men- 
 tal law, — the law of cohesion, according to which a series of 
 acts often done consciously, come at length to be repeated, 
 if not quite unconsciously at least automatically, in the same 
 
8 PRINCIPLES OF 
 
 way that an expert in vocal or instrumental music does from 
 habit what took him a long time and great pains to accom- 
 plish. Will anyone seriously maintain that a musician is not 
 to blame for a vicious style of execution because he has 
 contracted a bad habit ? I think not. 
 
 Jhere is then, as it seems to me, a class of quasi.-insane per- 
 sons, if you will, who are obedient to uncontrollable impulses 
 which they know to be wrong, and who deserve to be punished; 
 because their insanity— conceding it for the moment to be 
 such — is born of sane impulses gratified so long that they 
 have become unmanageable. Their punishment is justifiable 
 on this ground at least, that it will tend to oblige others, who 
 may be similarly inclined, to establish timely control over 
 their evil desires. 
 
 Hitherto I have used the word uncontrollable to mean the 
 insufficiency of ordinary motives to govern conduct. If a 
 drunkard, say, is deterred from indulging his passion for 
 drink, by a feeling of the actual or prospective damage, he is 
 inflicting or may at a future time inflict on his health, reputa- 
 tion and prospects, or by the misery he entails on his family 
 or friends, or by their admonitions and remonstrances, I call 
 his passion controllable; but if not deterred by any of these 
 checks, I call it uncontrollable, meaning that it is not con- 
 trolled by ordinary motives. But this falls considerably short 
 of proof of insanity, for on further experience we may find 
 that an extraordinary motive might have controlled it. For 
 instance; if the governing power were endowed with the fac- 
 ulty of seeing every case of drunkenness, however secret, and 
 thereupon were to declare death to all who should get intoxi- 
 cated, then those who were uninfluenced by ordinary motives 
 to temperance, would be governed by this extraordinary one, 
 and under these circumstances of secret sight and stern ad- 
 ministration of the law, the passion for intoxicating drink 
 would be controlled, unless where derangement of reason is 
 proved to exist, and the power to appreciate the value of mo- 
 tives is consequently absent, we should not declare the uncon- 
 trollability of any human impulse until it has disregarded the 
 severest punishments, and cautiously even then. It appears 
 to me at present impossible that an irresistible impulse can 
 
LEGAL RESPONSIBILITY. O 
 
 be proved to exist except in relation to some degree of men- 
 tal derangement, and I am unable to admit that the seeming 
 irresistibility of an impulse is of itself sufficient ground of ex- 
 emption from punishment. 
 
 On the other hand, when I regard the mental stale of verit- 
 able lunatics, of persons whose conduct is the product of 
 their insanity as distinguished from those whose insanity is the 
 product of their conduct, and ask myself whether on full con- 
 sideration of their state punishment, and more particularly 
 the extreme penalty of death, should be inflicted on them for 
 their unlawful acts, the answer is No ; because at the time of 
 such acts, either they were incapable of unlawful intent, or 
 though possessed of this mental capacity to some extent, they 
 believed the acts justifiable. 
 
 These are two distinct states, and each deserves some con- 
 sideration. 
 
 Take the case of an idiot whose mind is incapable of per- 
 forming the elementary steps of reasoning, and suppose he 
 commits an unlawful act. Owing to his state of idiocy he is 
 innocent of unlawful intent, and is not responsible. The fu- 
 tility of punishment in such a case is one of the strongest ar- 
 guments against it. It might protect society, to be sure, but, 
 even so, the infliction of capital punishment on such a person 
 could not be justified, unless every other way of restraining 
 him had been exhausted. There does not seem to be any war- 
 rant in law, reason or human feeling for the proposal to slay 
 the insane, who, by consequence of their insanity are mon- 
 sters of wickedness, as we might slay wild animals, though 
 their incurable moral obliquity is a good reason why the State 
 should keep them in durance for life. 
 
 Take in the next place, the case of a man, who though know- 
 ing the abstract and legal wrong of an act, nevertheless com- 
 mits it under a false impression that is justifiable. Is he re- 
 sponsible? Yes or No, according to circumstances, and of all 
 circumstances, one in particular — delusion. Delusion holds 
 that place in the insane man, which motive does in the sane 
 man. It is in plain words the insane man's motive. There is 
 no question that some insane people intend to commit unlawful 
 acts knowing them to be unlawful and punishable ; the point 
 
10 PRINCIPLES OF 
 
 I am suggesting in this insane motive, and whether it does 
 not, or, at least, ought not to take away responsibility. 
 
 It appears to be a settled rule of law that the mere presence 
 of a delusion in the mind of the accused, does not excuse his 
 act. To have this effect, it must be of a kind which would ex- 
 cuse the act were it real and not a delusion. Thus, previous 
 to the American Civil war, a man named Patrick Maude was. 
 executed in the city of New York, for the murder of his sister. 
 It was shown in evidence at his trial that he had a delusion 
 to the effect that his sister was conspiring with a priest, and 
 other people, to injure him. Had his delusion been to the ef- 
 fect that his sister was about to kill him, and had he there- 
 upon killed her, his act would have been excusable in the eye 
 of the law on the ground that, were the delusion a fact, his 
 deed would have been done in self-defense. But it remains 
 a matter for serious doubt whether a malefactor's legal respon- 
 sibility ought to be measured by a test so narrow and techni- 
 cal as this. A man who is deluded by the false belief that his 
 acquaintances are conspiring to injure him, he may be every 
 bit as insane as one who by way of hallucination sees them 
 stealing upon him with murderous intent. My own firm con- 
 viction is that an illegal act, which can be traced to an insane 
 delusion governing conduct, is excusable on the ground of the 
 causative relation between the delusion and the deed, and not 
 merely, as at present held, on the ground of its resemblance 
 to and actual state of facts. If it be found that a delusion is 
 related to an act as its cause, this relation alone should excuse 
 the act, and it is unnecessary and unjust to require as condi- 
 tion of exemption, that the delusion itself should have the 
 special relation of resemblance to an actual state of facts 
 which, if present in the case, would justify the resulting act. 
 
 The point seems wholly lost sight of in discussions on the 
 legal responsibility of lunatics, that delusions of the required 
 intensity have a power proportioned to their character, and 
 intensity of disturbing insane minds. A man with a harmless 
 delusion, such for instance, as that part of him is made of 
 glass, may never be anything more formidable than a nuis- 
 ance to his family. Such a delusion has notendency of itself 
 to rouse feeling and force it into violent action. But the con- 
 
LEGAL RESPONSIBILITY. II 
 
 sequence might be startling were he to become convinced 
 through his false imaginings of the existence of a conspiracy 
 to smash the glass part of his anatomy. And if this convic- 
 tion were confirmed by hallucinations of sight or hearing, he 
 might readily explode in a fatal outburst of insane passion. 
 
 There is another consideration. It is well-known that a 
 prominent feature of insanity with delusions is loss of self- 
 control, more particularly over feelings immediately connected 
 with the existing delusion. The deluded lunatic is like the 
 dreamer in that everything, no matter how incongruous and 
 absurd, which his brain originates, is real, and in the addi- 
 tional fact that all power of controlling his ideas and feelings 
 is at times in obeyance. I cannot therefore assent to Mr. 
 David Dudley Field's declaration in a late address to you on 
 the subject of "Emotional Insanity." " If," he said, "a per- 
 son suffering under perceptional insanity thinks he sees an 
 angel and hears a voice, as of the voice of God, commanding 
 him to kill his child, and acts in obedience to the supposed 
 command, I insist that, nevertheless, he should be punished 
 for it." Without touching upon the psychology of hallucina- 
 tions and delusions, I may remark with reference to this sup- 
 posed case, that where such hallucinations possible to a sane 
 man, he would not act in obedience to them, unless indeed he 
 were astonishingly superstitious. But suppose him insane,his 
 reason clouded, his actual experience in the world of facts 
 obliterated, his moral self perverted ; what in all probability 
 would be the effect of so terrible a delusion on his conduct? 
 What but to make him carry it into effect with an absorbing 
 belief in its reality, and a firm sense of the lawfulness of the 
 deed. And as the instrument of this delusion, he would not 
 be stayed for one moment by the warning voice of that alter 
 ego, that conscience which alone can supply his delusions with 
 its corrective, but which is mute in him. For the mental 
 characteristic of insanity, and. pdr consequence of delusional in- 
 sanity, is a double consciousness moving in parallel lines, one 
 in the domain of actual experience, the other in that of base- 
 less phantasm, between which the mind oscillates, now finding 
 itself in one, now in an other; but the lines never meet, one 
 or the other is simply forgotten as consciousness happens to 
 
12 LEGAL RESPONSIBILITY. 
 
 revert to a basis of fact on the one bide, or to the creations of 
 morbid fancy on the oLher. 
 
 This completes my survey of the two classes of insane per- 
 sons to whom I have attempted to apply the main principles 
 of legal responsibility. Of necessity, my observations have 
 been limited to two points, namely, uncontrollable impulse 
 and delusional or perceptional insanity, using the word per- 
 ceptional in the sense given it by David Hume. I may now, 
 for the sake of greater distinctness, sum up the results of the 
 foregoing argument, as follows : 
 
 With regard to uncontrollable impulse, it deserves punish- 
 ment when it results from the habitual indulgence of the pas- 
 sions, even though it be accompanied by indications of a dis- 
 ordered mind. It does not deserve punishment when it re- 
 sults immediately from a previously existing and still contin- 
 uing state of insanity. 
 
 As regards the insane who have delusions, I would divide 
 them into two main classes, with reference to their legal re- 
 sponsibility ; first, those whose unlawful acts are not con- 
 nected with their delusions in the relation of cause and effect. 
 In the absence of evidence to establish this connection, such 
 acts are presumably the effect of a sane phase of mind. Sec- 
 ondly, those whose unlawful acts are connected with their de- 
 lusions in the relation of cause and effect. The former are 
 legally responsible, the latter are not. 
 
 That numbers of the insane possess power of self-restraint 
 is true. Their conduct can also be governed by rewards and 
 punishments. But so can the conduct of children, and of the 
 more sagacious of the brute-creation. Again, so far as the 
 insane are corcerned, it is their sane conduct that can be so 
 governed. Their insane conduct is that which baffles ordin- 
 ary control, and on account of which they are placed in luna- 
 tic asylums. No properly conducted mad-house would toler- 
 ate the punishment of lunatics during access of their insane 
 fits. Punishment at such times might find some color of jus- 
 tification, if its intention were to impress other insane persons 
 in their intervals of comparative sanity ; but as a means of 
 arresting insane demonstrations already begun, I think that, 
 if it is not, it ought to be condemned. 
 
MONOM AN I A, 
 
 AS AFFECTING TESTAMENTARY CAPACITY. 
 
 By EDWARD PATTERSON, Esq., of the New York Bar. 
 
 The conservatism of the law necessarily prevents its keep- 
 ing pace with the progress of general science. It rejects 
 everything that is merely speculative or tentative, and re- 
 fuses to recognize, as a rule of action, aught that lies merely 
 in the domain of theory or supposition. It rests upon au- 
 thority for its highest sanction and support ; and thus the 
 results of the experience and knowledge of one period have 
 become formulated into rules and laws for the guidance and 
 direction of succeeding generations. These rules continue to 
 be operative long after the occasions which gave them origin, 
 or the circumstances out of which they arose (or their paral- 
 lels) have ceased to influence the conduct of men or the af- 
 fairs of life. The jurisprudence of to-day is weighted with a 
 multitude of practical anachronisms (if that expression may 
 be permitted), many of them so closely and intimately inter- 
 woven with the texture of the system itself, that rashly to at- 
 tempt their severance or extirpation would bring about the 
 disaster of increased confusion and perplexity. The great 
 desideratum of our municipal law is certainty of decision; and 
 the necessity for the maintenance of this element induces the 
 tribunals charged with the administration of the law, to ad- 
 here to ancient principles even although they are out of place, 
 rather than to announce with precipitancy the inutility or un- 
 
 Read before the Society, January 28, 1875. 
 
14 MONOMANIA, AS AFFECTING 
 
 fitness of those principles as criteria of rights, obligations or 
 responsibilities. The liberation of a principle of law from 
 the entanglement of antique limitations ; the extension of 
 that principle or of some engraftment upon it to cases which 
 could not have arisen when it was promulgated ; the modifi- 
 cation of rigid rules to meet new emergencies ; the proclama- 
 tion by judicial utterance that a rule has ceased to apply be- 
 cause the reason of the rule has ceased, are matters so diffi- 
 cult, requiring so much knowledge, intelligence and courage, 
 that in the absence of legislation few Judges would assume 
 the responsibility of attempting to accomplish them. "It is 
 better to cling to old land-marks," it is said, " than to map 
 out new boundaries," and this undoubtedly describes the dis- 
 position of the average of the Judiciary. The radical changes 
 in our laws during the last two centuries, which have been af- 
 fected by causes other than direct and definite legislation, are 
 not numerous except as they may have arisen from the de- 
 velopment and extension of the jurisdiction of Courts of 
 Chancery, and the adoption of equitable remedies Indeed it 
 may be rightfully claimed that the whole of our Equity juris- 
 prudence, historically considered is nothing but the record 
 of the triumphs of reformers over this tendency of the law to 
 stagnate ; these victories being wrought into a system of prac- 
 tical devices to correct the inflexibility of common law dic- 
 tates. The insufficiency of these devices to answer any pur- 
 pose of permanent improvement was, however, soon made 
 manifest, for they in their turn, acted upon by the habit of 
 the Courts, soon passed into authority and became obdurate 
 and unyielding rules. .The words of Sir Thomas Browne are 
 as appropriate now as they were two hundred years ago : 
 "The mortalest enemy unto knowledge, and that which has 
 done the greatest execution upon truth, hath been a peremp- 
 tory adhesion unto authority, and more especially the estab- 
 lishing of our beliefs upon the dictates of antiquity. For (as 
 every capacity may observe) most men of ages present so su- 
 perstitiously do look on ages past, that the authorities of the 
 one exceed the reasons of the other." [Essay on Vulgar Er- 
 rors.] 
 
 The incongruities and ineptitudes in the* relations between 
 
TESTAMENTARY CAPACITY. 1 5 
 
 authority and the demands of society for appropriate laws to 
 regulate the affairs of men as they actually exist and require 
 government, furnish at once the impulse to and the difficul- 
 ties in the way of intelligent and efficient law reform. The 
 question is, how can certainty and uniformity of decision be 
 secure and yet the system of jurisprudence be so moulded 
 as to render it feasible to conform it to the changes which the 
 rapidly advancing and varying civilization of modern times 
 imperatively demand. The difficulties in the way of the so- 
 lution of this question are, in the judgment of most thinkers, 
 only to be obviated by the enactment of all necessary rules in 
 the shape of a consolidated code, like the Code of France, or 
 the unadopted Civil Code of the State of New York, which 
 shall supersede all the sources of the law as they are now re- 
 sorted to, and which by reason of its compactness may present 
 in an accessible shape, the whole body of the law, and may al- 
 so, because of its structure, from time to time, and without vio- 
 lence to or impairment of its other parts, be amended in any 
 given particular as the exigencies of the times or the new 
 experiences of the community may require. 
 
 The value of these observations will be apparent to the gen- 
 eral lawyer, to whom many illustrations will at once occur. 
 Their force will be appreciated by the gentlemen of the med- 
 ical profession, if they will reflect upon the history of the ef- 
 forts that have been made to establish proper views in the 
 decisions of the Courts, upon the various departments of the 
 subject which we designate by the generic term Insanity. 
 What has already been said applies as well to the condition 
 and history of our jurisprudence upon this subject as to any 
 other topic of the law. It is true th%t the evil was substan- 
 tially inevitable, and that it is idle to quarrel now with condi- 
 tions which it is only our duty to endeavor to rectify. Palpa- 
 ble and gross errors are committed every day in the Courts of 
 law on the subject of Insanity, which Courts are constantly 
 clinging to exploded notions, or discussing, as open questions, 
 matters relating to mental phenomena which have long since 
 been settled by the medical faculty. It would be, of course, 
 sheer folly to advocate the departure by any Court, from 
 the principles of decision which have guided it in the past, 
 
10 MONOMANIA, AS AFFECTING 
 
 or even to urge an alteration, until it can be shown that an 
 adherence to those principles really operates an injustice ; 
 but that being proven, it does seem something worse than 
 absurd to go groping with rush lights in darkened cham- 
 bers of thought, when by simply opening the windows we 
 may see all the illuminating power of the sun. I fully ap- 
 preciate the delicacy of applying the test in the first in- 
 stance to determine what is and what is not genuine ad- 
 vance, and also the magnitude of the task of evolving general 
 rules from a mass of individual cases, the details of each of 
 which must necessarily differ from those of all others. It 
 must be conceded likewise, that no one man is entirely equal 
 to the work of rearing an acceptable and just system of juris- 
 prudence on this subject of insanity,although many understand 
 it clearly in its physical and mental aspects and relations. 
 What is to be accomplished in this way can -best be done by 
 some agency of skilled, patient, learned and experienced 
 minds of the medical and legal professions, organized as this 
 society is, or on some other plan of conjoint effort and labor; 
 and whatever is done will require the utmost circumspection 
 to prevent too great a recoil in the wrong direction. It is 
 a mere truism, but an important one,that anything that dimin- 
 ishes the prospect of punishment increases the inducements 
 to crime ; and whatever may be undertaken in the interests of 
 humanity and in the progress of science, to correct the errors 
 and mitigate the severities of the criminal law on the subject 
 of insane malefactors, there will constantly be presented this 
 difficult problem, viz. : How to strengthen the course of public 
 justice and morality, and at the same time preserve the rights 
 and privileges of these unfortunates. 
 
 I do not propose dwelling upon this particular topic longer, 
 but who has not been impressed by the glaring wrongs that 
 have been perpetrated in the name of the law upon the mis- 
 erable and unfortunate? It is not very many years ago that 
 the penal laws of christian and enlightened nations demanded 
 the blood of victims whose real offences were no graver than 
 the possession of understandings wrecked and intellects disor- 
 dered. These were not the objects only of popular delusions 
 and superstitions, againstwhom the malevolence of whole com- 
 
TESTAMENTARY CAPACITY, 17 
 
 munities found fierce delight in wreaking "the injustice of 
 revenge ;" but they were people solemnly arraigned for ordin- 
 ary felonies, carefully and temperately tried, and condemned 
 upon well-grounded and time-honored and reverend dogmas 
 of the law. They stood in the gloom of a general presump- 
 tion that every man intends the consequence of his acts (which 
 is but a half truth at best), and of what seems to have been ac- 
 cepted as a postulate that consequences are conclusive evi- 
 dence of intention. It'cannot be doubted that effects of acts 
 alone, without regard to the office of the will in inducing those 
 acts have settled the adverse destinies of many persons who 
 judged by our standards to-day, would be regarded as guilt- 
 less of intended crime. It is true that these occurrences trans- 
 pired during periods of comparative ignorance ; but it is like- 
 wise true that the condition of the law has been such as to 
 render these things possible, long after the disclosures of sci- 
 ence have made known that impulses to crime are sometimes 
 uncontrollable, and may be the effect of obscure mental dis- 
 ease as well as the product of depravity. How unsatisfactory 
 is the present condition of the law on the subject of Insanity 
 as excusing crime, and how great are the needs of careful and 
 well-devised methods for its amelioration, the objects and the 
 efforts of this Society attest. 
 
 But it is not only with reference to crime that the imperfect 
 condition of the law as to Insanity is displayed. There is cur- 
 rent in the decisions of the Courts, and in the general litera- 
 ture of the law, much of serious error respecting mental dis- 
 ease as influencing the testamentary capacity of the person 
 affected by it. What is most noticeable is that the state of le- 
 gal knowledge and the result of judicial' decision on this sub- 
 ject seem to fluctuate between opinions of a hundred years 
 ago, and those of recent times ; the former re-appearing and 
 being re-asserted when least anticipated, and receiving appli- 
 cation and enforcement in most unexpected quarters ; and 
 more especially is this to be observed in those litigations, the 
 facts of which indicate that the person whose testamentary 
 act is assailed upon the ground of incapacity to make a will, 
 was, or was supposed to be, the subject of that mental malady 
 which is now know T n to be a distinct and peculiar condition, 
 
l8 MONOMANIA, AS AFFECTING 
 
 and to which we assign the designation "monomania." By 
 some it is claimed that any delusion — and in many cases it is 
 believed that illusions and hallucinations, where they are per- 
 sistent, disqualify a person from making a valid will ; while 
 others assert that the old dogmas as to absolute alienation of 
 mind are the true "rules of decision on questions of testament- 
 ary capacity. Neither of these views is correct, and it is my 
 purpose this evening to trace in a very general way the growth 
 of the doctrines of law properly applicable to wills, contested 
 by a testator's relatives upon the allegation of monomania, 
 and to refer, although desultorily to the origin of those doc- 
 trines as exhibited in several of the principal litigations in 
 which they have been enunciated ; and to show that there is 
 one just, reasonable and sufficient rule to cover all such cases 
 — a rule however which, although it has received the appro- 
 bation of the cultured minds of the two professions most in- 
 terested in its maintenance, is nevertheless very often entire- 
 ly ignored by Judges in cases as to which no other rule can 
 in consonance with justice be applied. 
 
 The general inquiry in all investigations concerning the 
 mental condition of a testator should be : Was or was not the 
 individual compos mentis, at the time of the performance of 
 the testamentary act ? This is substantially the test as adopt- 
 ed by the Court of Appeals of the State of New York. That 
 Court in the Parrish Will Case (Delafield v. Parrish, 25, N. Y. 
 97), a majority of the Judges concurring, held that "in law 
 the only standard as to mental capacity in all who are not id- 
 iots or lunatics, is found in the fact whether the testator was 
 compos mentis, or non compos mentis, as those terms are used in 
 their fixed legal meaning." A lunatic, or one who is the sub- 
 ject of general derangement, is absolutely non compos mentis 
 and cannot make a valid will, except during the supervention 
 of a lucid interval. He is "one who is subject to a continued 
 impetuosity of thought which, for the time being, totally un- 
 fits him for judging and acting in relation to the affairs of 
 life, with the composure and deliberation necessary to their 
 maintenance and proper discharge." The law disqualifies 
 such a person from performing a testamentary act (just as it 
 would, but upon less stringent evidence, exonorate him from 
 
TESTAMENTARY CAPACITY. 19 
 
 responsibility for an action which under other circumstances 
 of commission would be criminal), unless it be shown that at 
 the time of making the will there was a remission of the dis- 
 ease. It may not be inappropriate to remark in this place, 
 that there is a sceptical disposition abroad on this subject of 
 lucid intervals. The question is mooted as to whether they 
 really occur — whether there is any other condition than that 
 of the presence or absence of the mental disturbing cause. 
 If mental maladies are attributable to structural changes in 
 the brain, it seems strange that there should be a suspension 
 or cessation of the processes, or the effects of processes oper- 
 ating such a change, and which suspension or cessation is 
 merely temporary and intermittent ; but the doctrines of the 
 law on this matter are deeply laid, and now seem to be of gen- 
 eral acceptance in the Courts. 
 
 That unsoundness of mind which is involved in all judicial 
 inquiries as to a testator's ability to make a valid will may be 
 either of two descriptions, viz.: general insanity or partial in- 
 sanity. The recognition by the law of these divisions, which 
 shortly necessitated the adoption of a rule specially adapted 
 to each, marks a great and important era in the judicial his- 
 tory of Insanity. Prior to the days of the American Revolu- 
 tion, the distinction, if taken by writers, or advanced by the 
 more progressive and better-informed of the medical profes- 
 sion, had no favor in the Courts of law. Indeed, from the 
 time of Sir Edward Coke through to Lord Hardwicke's time, 
 the severest and most inclusive rule of testamentary privilege 
 was enforced. The English Courts formerly entertained jur- 
 isdiction to avoid instruments upon allegations of mental in- 
 capacity only in cases of "a total loss of understanding " where 
 "one by grief, sickness or other accident, wholly loseth his 
 understanding," is the language of one of the oldest cases. 
 In the Criminal Courts, some attempts had been made to es- 
 tablish the doctrine that limited insanity excused crime, but 
 the effort was not successful ; for it was held about the year 
 1725, in the case of Arnold, that insanity as a defense to an 
 indictment must amount to a total deprivation of understand- 
 ing and memory, so that a man could be no more conscious 
 of the probable effects of his acts than an infant or a brute. 
 
20 MONOMANIA, AS AFFECTING 
 
 The ruling in this case has furnished Dr. Maudsley with his 
 very expressive phrase, the "wild beast" theory of responsible 
 ity for crime. In investigations under writs de lunatico inquir- 
 endo, partial insanity had been adjudged sufficient to authorize 
 the sequestration of property and its transferrence to the 
 charge of a committee ; but I am considering the history of 
 the subject in strictly testamentary cases, and in such cases 
 only. 
 
 The extended and enlarged jurisdiction in which the partial 
 insanity of a testator was recognized as sufficient cruse for 
 the avoidance of his will, seems to have originated after the 
 retirement of Lord Hardwicke from the Chancery in 1756. 
 In ex parte Barnsby (3 Atk.), that illustrious Chancellor held, 
 that "insance mentis" (a term then used to designate what we 
 now call a lunatic), "non compos mentis" and "unsound mind" 
 are synonymous expressions. Hence a man, to be incompe- 
 tent to devise or bequeath his property, must have been sub- 
 stantially a lunatic. The distinctions are not apprehended 
 between partial and total insanity, and it is not until the case 
 of Mr. Greenwood, in the earlier years of the reign of George 
 Third, that we have a distinct foreshadowing of the doctrine 
 which has become so vital and necessary in these days. 
 
 Before proceeding further, let me refer to the classification 
 and separation into groups of the various forms of unsound- 
 ness of mind, as they are distributed in the terminology of the 
 medical profession. 
 
 Esquirol (des Malades Mentales) distributes these morbid 
 mental phenomena into five classes, viz.: 
 
 1. Melancholia. 
 
 2. Monomania. 
 
 3. Mania. 
 
 4. Dementia. 
 
 5. Idiocy or Imbecility. 
 
 This distribution or classification is accepted and adopted 
 by the most eminent writers upon these subjects. Dr. Ham- 
 mond quotes Esquirol with approbation in his most lucid and 
 admirable monograph on "Insanity in its medico-legal rela- 
 tions," a production which, in connection with the facts and 
 circumstances of the contested Will Case of James C. John- 
 
TESTAMENTARY CAPACITY. ?I 
 
 ston of North Carolina, furnishes one of the most instructive 
 and satisfactory contributions that have been made to the lit- 
 erature of the subject of Monomania. I regret that for want 
 of time further reference to tins case of Johnston (which 
 would well illustrate some of the views I shall hereinafter 
 present) must be omitted. 
 
 The first and second of the classes falling- under the distri- 
 bution of Esquirol, viz.: Melancholia (which is defined by a 
 quaint writer as "sadness without a reasonable cause,") and 
 Monomania, belong to the division of partial insanity, and 
 Monomania often borders upon Mania. 
 
 To define with some attempt at clearness the respective 
 conditions of general and partial insanity may be of service. 
 If I might venture a definition of my own, I would describe 
 general insanity to be that aberration of mind, the result of 
 grief, disease or accident, which prevents the subject of it 
 from using his reason, or which substitutes for the clear oper- 
 ations t>f the mind a morbid fancy, a perverted understand- 
 ing, a delusive apprehension of the affairs and business of life , 
 whence arise an unstable judgment, an infirm, feeble, vacillat- 
 ing will ; a diseased and fantastic imagination, wholly irra- 
 tional and abnormal. 
 
 Partial insanity is that condition of mind in which the indi- 
 vidual is rational and intelligent on all subjects except the 
 particular topic or class or system of topics as to which he 
 labors under delusion. 
 
 The form in which partial insanity is presented to the notice 
 of Probate Courts, and generally in testamentary cases, is al- 
 most always in connection with Monomania alone. 
 
 Esquirol defines Monomania to be, "perversity of under- 
 standing limited to a single object, or small number of ob- 
 jects, with predominance of mental excitement " 
 
 Each of the two chief divisions of mental incapacity, has 
 applicable to it its peculiar and distinct rule of law: 
 
 ist. Where the evidence shows the testator to have been 
 totally insane shortly before the time of the execution of the 
 will, testamentary incapacity is presumed to have existed at 
 the time of its execution, and the onus probandi is thrown upon 
 those claiming the validity of the instrument to countervail 
 
22 MONOMANIA, AS AFFECTING 
 
 this presumption by evidence of a lucid interval during which 
 the testamentary act was performed. 
 
 2d. In the case of partial insanity, or partial unsoundness 
 of mind, generally evinced in the form of Monomania, it de- 
 volves upon the contestants to show, that the will is the direct 
 offspring of that insanity, or in other words, the burthen of proof 
 is upon the contestants to show that the partial insanity ex- 
 isted at the time of the execution of the will, and that to its 
 existence and its operation in and influence upon the mind of 
 the testator their disherison is to be attributed. 
 
 As before stated, the earlier adjudications are silent upon 
 the distinction between general and partial insanity. As 
 clearly defined and as generally accepted as these distinctions 
 seem to be now, to those who have studiously considered the 
 subject, nevertheless, the same relation back to the conceits 
 of the past — entirely inappropriate and out of accord with 
 modern discovery, and the real requirements of the present — 
 appears on this subject in very recent cases. As an example, 
 I select from among several lately examined, that of Stackhouse 
 v. Horton, 15. N. J., Ch. R. 202. By this case it would seem 
 that there are but few if any restrictions upon the testamen- 
 tary'acts of those partially insane. The case seems to have 
 been well decided as to the immediate facts involved, but the 
 learned Chancellor in the course of his opinion sees fit to lay- 
 down as a broad principle that "a person may be the subject 
 of a partial derangement toward a particular person, and this 
 derangement may be the cause of depriving such individual 
 of the bounty of the testator, which he otherwise would have 
 enjoyed, and yet the will made by such a person be valid." 
 I refer to this declaration of the law, merely as an illustration 
 of how fixed is the disposition of even the most competent 
 magistrates to seek shelter under the shades of antiquated rul- 
 ings, and to impress the facts as pertinent to the present sub- 
 ject, that this tendency to revert to the rules of the past is 
 one of the causes of so much of practical error in our present 
 . modes of administering justice. The doctrine of the Chan- 
 cellor in the case referred to, unlimited and unrestrained, 
 would sweep away all experience and progress of quite fifty 
 years, upon the subject of which he was treating, and could 
 
TESTAMENTARY CAPACITV. 23 
 
 only find its justification in the assumption that there is no 
 verity in any other rule than that ancient and exploded one. 
 that total insanity is alone a cause of testamentary incapacity. 
 
 It is quite incompatible with the design of this paper, to 
 refer to any great number of adjudicated cases, for time and 
 space will not allow it. For the same reason, I must intermit 
 any use of the text writers for a similar purpose. I will there- 
 fore consider but a few of the decisions of Courts, and only 
 such as will serve and are necessary to the purpose of suffi- 
 cient presentation of the subject under discussion. 
 
 The first, and for that reason the most conspicuous litiga- 
 tion relating to the distinction between the two classes of in- 
 sanity, is not fully reported in any book, and so far as its de- 
 tails are concerned, it may be called merely traditional. Nev- 
 erless, because of its definition of principle, and clear enunci- 
 ation of a new rule, it is more frequently cited by Judges and 
 counsel than any other case. Erskine in his argument to the 
 jury in the trial of James Hadfield, speaks as follows: "The 
 deceased Mr. Greenwood, whilst insane, took up an idea 
 that his brother had administered poison to him, and this be- 
 came the prominent feature of his insanity. In a few months how- 
 ever, he recovered his senses, and returned to his profession, 
 which was that of a barrister, but could never divest his mind 
 of the morbid delusion that his brother had attempted to pois- 
 on him, under the influence of which (so said) he disinherited 
 him - On a trial in the Court of Kings Bench upon an issue 
 devisavit vel non, a jury found against the will ; but a contrary 
 verdict was had in the Common Pleas, and the case ended in 
 a compromise." 
 
 The mental trouble with which Mr. Greenwood was afflicted, 
 was clearly monomania — to his brother was his hostility lim- 
 ited ; and it seems that it was an ever-present delusion that 
 his brother was attempting to murder him. Lord Kenvon in 
 charging the jury is reported to have said, "'If you think that 
 whenever that topic occurred to him it totally deranged his 
 mind, and prevented him from judging of who the objects of 
 his bounty should be, according to his own will, then the will 
 cannot stand ; but if you think he was of competent mind to 
 make his will, to exercise his judgment, however that might 
 
24 MONOMANIA, AS AFFECTING 
 
 be disturbed by passions which ought not to be encouraged, 
 then the will ought to stand." 
 
 This case is probably entitled to be regarded as the pioneer 
 of the correct rule of law on the subject of partial insanity. 
 There was proof in the case of a restoration to health, suffic- 
 ient to cnab'e Mr. Greenwood to resume the practice of his 
 arduous profession. Under the old rule his will would have 
 been valid, and even under Lord Kenyson's charge the condi- 
 tion of total derangement of mind, superinduced by the one sub- 
 ject of delusion, was required as the belief which the jury 
 must entertain before pronouncing against the will. This 
 phrase "totally deranged his mind," in the connection in 
 which Lord Kenyon used it, is very significant. The learned 
 Judge was not willing to proceed to a radical change in his 
 definitions. He did not care to pronounce that Mr. Green- 
 wood may have been entirely sane on every other subject of 
 mental contemplation, except his relations to his brother, and 
 yet, if, as to those relations, he entertained delusions which 
 were so inveterate in their character as to induce him to ex- 
 clude that brother from a share in his bountv, he couid not 
 make a valid will ; but he approximates it by holding that if 
 as the disturbing cause operating a dethronement of reason, 
 he entei tamed this aversion to his brother, then that delusion 
 disqualified him from making a will. The consequence and 
 effects of the diseased intellect, astray as to only one subject 
 or class or system of subjects, were, in the estimation of Lord 
 Kenyon, to be of so serious and all-pervading a character as 
 actually to unsettle all the mental processes during the period 
 of the presence and operation of the one cause of disturbance. 
 Here are displayed errors very natural to the incipiency of 
 the subject. Lord Kenyon evidently contemplated two 
 things as associated with monomania, which have since been 
 ascertained to be not characteristic of it ; first, that it effects 
 the mind always as if it influenced all mental operations dur- 
 ing the times of its manifestations, utterly preventing the use 
 of reason during those times; and second, that there are per- 
 iods of remission analogous to or really constituting lucid in- 
 tervals. 
 
 Before the new idea thus introduced on the precedent of 
 
TESTAMENTARY CAPACITY. 25 
 
 Greenwood's case, could be utilized and commended for gen- 
 eral adoption in similar cases, it became necessary to relieve 
 the rule of what was yet cumbersome and unphilosophical in 
 it. This was done, and the law further fashioned in another 
 celebrated case in England, constantly referred to in the 
 books, and cited as Dew v. Clark. This is very justly consid- 
 ered the leading case on the subject, and will therefore, per- 
 mit a few moments consideration of its history. 
 
 It was twice at bar in the Prerogative Court of Canterbury, 
 before Sir John Nichol. It came up originally in Trinity 
 Term, 1822, on an application made by the contestant for 
 leave to set up a plea of partial insanity as invalidating the 
 will of a Mr. Ely Stott, who had conceived a monomaniacal 
 dislike to, amounting to extreme hatred of, his daughter, Mrs. 
 Dew. The motion was opposed on the ground that partial 
 insanity did not by the law of England incapacitate a person 
 from making a will. The plea was admitted however by the 
 Court, on the authority of Greenwood's case ; nevertheless 
 the intimation was quite direct, that it would be almost a 
 hopeless effort to undertake to establish by proof all that 
 would be required to support such a plea. The reluctance to 
 depart from the theories of the past, although they were con- 
 fessedly untenable, is here distinctly exhibited. Proofs were 
 taken, and afterwards the cause came up for hearing upon 
 them. It appeared that Mr. Stott made a will in 1818. A 
 commission de lunatico inquirendo was sued out against him in 
 July, 1821. He was pronounced a lunatic and to have been 
 such since (but not prior to) 1st January, 182 1. 
 
 It was proven that the testator regarded his daughter as 
 "invested with singular depravity, a peculiar victim of vice 
 and evil, the special property of Satan from her birth, etc." 
 and that he had very peculiar religious views. The essential 
 facts of the case, however, as illustrating the rule evolved 
 from them and enunciated by the Court, are those connected 
 with the insane abhorence and detestation in which .he held 
 his daughter, and which undoubtedly were the causes of her 
 exclusion from a share of his estate. In other words he was 
 a monomaniac. 
 
 The decision of the Court on these facts is reported in 3. 
 
26 MONOMONIA, AS AFFECTING 
 
 Addams. The syllabus of the case gives such an excellent 
 epitome of the decision that it will suffice to quote it : 
 
 "Partial insanity is good in defeasance of a will founded im- 
 mediately (so to be presumed) in or upon such partial insan- 
 ity. If A. then makes a will plainly inofficious in respect to 
 B., and is proved at the time of making it to have been under morbid 
 delusion as to the character and conduct of B., the Court of 
 Probate will relieve by pronouncing this will to be invalid, and 
 holding A. to have died intestate." 
 
 From this case of Dew v. Clark we have received the only 
 clear, just and practical doctrine of the effect of monomania 
 upon testamentary dispositions of property. It establishes 
 the rule recognized and enforced in the best considered sub- 
 sequent cases both in England and America — not in the way 
 of merely following the precedent, but upon careful and exact 
 reasoning and argument. From these cases we ascertain that 
 two elements must co-exist to afford sufficient ground for nul- 
 lifying at the instigation of his relatives the will of a person 
 afflicted with monomaniacal delusions. 
 
 First. There must be plainly a inofficious will ; or a will 
 lacking in natural affection and duty. 
 
 Second. There must be morbid delusion actually existing 
 at the time of making, and undoubtedly prompting the pro- 
 visions of the inofficious instrument. 
 
 As this rule has been accepted and applied under the spec- 
 ial circumstances of almost all the English cases which have 
 been decided since Dew v. Clark, and in which the subject 
 was involved, it will be unnecessary to make further citations. 
 I would mention, however, that where there may seem to be 
 departures from it, in such cases as Waring v. Waring, and 
 Smith v. Tebbetts, it will be found that those are strictly cases 
 of general insanity. In the first of these cases the opinion of 
 Lord Brougham has met with very severe animadversion. 
 
 The rule laid down in Dew v. Clark has found ready adop- 
 tion and application in the American cases. I will refer only 
 to two or three of them in which the doctrine has been very 
 forcibly and satisfactorily set forth. The first is only a Nisi 
 Prius case, but the views are advanced by a Judge of eminent 
 learning and sagacity who so lucidly pronounces the rule, 
 
TESTAMENTARY CAPACITY. 27 
 
 that is is evident he bestowed much time and thought upon 
 it. In Leach v. Leach, n. Penn. Law J., King, Justice, in 
 charging the Jury said : 
 
 "A monomaniacal delusion inveterately entertained by a testator, 
 against one who would otherwise have been the natural object of his 
 bounty, and shown to be the reason which has excluded him from it, 
 and to have had no other existence, except in the disteitipered imagin- 
 ation of the testator, would invalidate a will made under such 
 influence, and for the very plain reason that a will made un- 
 der such an insane delusion is not what the law requires a 
 will to be, viz. : the product of a mind capable of reasoning 
 rightly. For although the law recognizes the difference be- 
 ' tween general and partial insanity, yet if the will has been 
 made under the influence of such partial insanity, and as the 
 product of it, it is as invalid as if made under the effects of 
 an insanity never so general." 
 
 In Stanton v. Weatherwax, 16 Barb., 259, Gridley, Justice, 
 delivering the opinion of the New York Supreme Court, says: 
 "A monomaniac may make a valid will, when the provisions 
 of the will are entirely unconnected with and uninfluenced 
 by the particular delusion. But when there is good reason to 
 believe that the will is the offspring of that particular delu- 
 sion, which has seized his mind and controlled its operations, 
 the result is otherwise. A will thus made under the influ- 
 ence of a powerful delusion, which has not only impaired, 
 but perverted his judgment and understanding in connection 
 with the provisions of the will, so as to exercise a controlling 
 influence on the disposition of his property, is not the will of 
 a person of sound mind. His mind is unsound quoad the very 
 subject on which he is called to exercise his powers in mak- 
 ing the will." 
 
 In Seamans Friend Society v. Hopper, 33. N. Y., 619, Denio, 
 Chief Justice for the New York Court of Appeals, says : "If 
 a person persistently believes supposed facts, which have no 
 real existence except in his perverted imagination, and against 
 all evidence and probability, and conducts himself however 
 logically upon the assumption of their existence, he is, as far 
 as they are concerned, under a morbid delusion, and delusion in 
 that sense is insanity. If the deceased in the present case 
 
2 8 MONOMANIA, AS AFFECTING 
 
 was unconsciously laboring under a delusion as thus defined, 
 in respect to his wife and family connections, who would na- 
 turally have been the objects of his testamentary bounty when 
 he executed his will, or when he dictated it (if he did dictate 
 it), and the Court can see that its dispository provisions were 
 or might have been caused or affected by the delusions, the 
 instrument is not his will and cannot be supported as such in 
 a Court of Justice." 
 
 These cases" and the reasoning applicable to the facts ap- 
 pearing in them, establish that in cases of partial insanity or 
 monomania, unless the contestants can clearly trace their dis- 
 herison to the delusion of the testator existing at the time of 
 making the will, the legal presumption of testamentary ca- 
 pacity which always attaches until it is countervailed by ex- 
 press proof, is not overcome. 
 
 The rule with relation to disqualification from testatory 
 power in cases of monomania as stated, finds as valuable illus- 
 tration in causes in which delusions of a more or less insane 
 character have been proven as isolated conditions, not direct- 
 ly affecting the wills or dispository provisions of those sub- 
 ject to them (and in which causes, therefore, the testamentary 
 acts have been sustained), as it does in those in which from 
 their circumstances the inference was inevitable that the ex- 
 istence and operation of the delusions caused the testator to 
 withhold his bounty from those who should have received its 
 benefits. In the class of causes to which I now advert the 
 delusions were generally of such a character as referred 
 either to religious vagaries, or inordinate credulities as to 
 supernatural phenomena, or other erratic ideas and convic- 
 tions upon topics which we rightly term superstitions. In 
 dealing with such subjects the Courts should decline to re- 
 gard as satisfactory evidence of altogether perverted intelli- 
 gence, the exhibition sporadically of those peculiarities of 
 belief which formerly were incorporated in the creeds of de- 
 vout men of various religions and nationalities. There can 
 be no legal standard of normal religious faith — the world is 
 too far advanced for that ; but even in Christianity, orthodoxy 
 and heterodoxy have more than once changed places in the 
 course of time, and the saint of to-day would probably have 
 
TESTAMENTARY CAPACITY. 
 
 20 
 
 graduated in martyrdom a few centuries ago. Hecatombs 
 have been offered up to appease the demand of the intellect 
 of the world for the extinction of witchcraft. What more 
 horrible impeachment of human wisdom than that defaces the 
 history of our race? But yet occasional evidences of a pure 
 and sincere belief in that fatal fantasy are presented to our 
 observation among our own contemporaries. Although the 
 tales, believed with all the earnestness of religious faith two 
 or three hundred years ago, are scarcely enough to evoke 
 more than a contemptuous smile from a strong-minded child; 
 yet some weak-minded men, entirely competent, however, to 
 perform all the ordinary duties and make all the ordinary 
 discriminations of life, give these or similar fables entire cre- 
 dence. These peculiar and infrequent cases, running counter 
 to the sceptical, more enlightened and better instructed opin- 
 ions of the times, are nothing more than isolated instances of 
 what were earnest, deliberate and intensely believed articles 
 of faith of such men as Popes Innocent 8th, Julian 2d, Adrian 
 7th ; Sir Edward Coke, Sir Matthew Hale, Lord Bacon prob- 
 ably, Erasmus, Martin Luther, Calvin, Baxter, Sir Thomas 
 Browne, Cotton Mather, John Wesley. The belief in modern 
 spiritualism, with its puzzles and mysteries of mechanical or 
 mesmeric effects, or whatever they may be, is entertained by 
 many of the most subtle, acute and accurate minds — and yet, 
 should the mere holding of these convictions and kindred in- 
 fatuations, of the very essence of delusions to the accredited 
 standard of rationality — no matter how fervent they may be 
 and with whatsoever tenacity they may be held — be received 
 as satisfactory evidence of that insanity which would vitiate 
 a testamentary act — how repugnant would it be to our sense 
 of justice ? Every one of us would revolt against such a doc- 
 trine. But if such convictions, proven to have existed in the 
 imagination, lead to the repudiation of the claims of nature 
 and the ties of kinship, and to the establishment of professor- 
 ships for the spread of spiritualistic knowledge, or to the 
 foundation of a fund for the detection of punishment of wit- 
 ches, or to the diversion of property from those believed by n 
 testator to be witches, or under satanic influences ; or for the 
 benefit of such very mortal immortals as Miss Katie King and 
 
30 MONOMANIA, AS AFFECTING 
 
 her materialized spiritual comrades, recently first certified 
 and then denounced by well known gentlemen in the literary 
 and scientific world ; then the delusion — shaping itself into a 
 force, dominating the will, dictating the testamentary act, 
 and turning away the current of feeling from those who 
 should be the recipients of posthumous bounty — becomes a 
 disqualifying cause, and avoids the will made under its influ- 
 ence. 
 
 The importance of these cases of delusions which are not 
 connected with personal enmities and do not directly affect 
 testamentary acts, as aiding in the elucidation of the subject 
 ol testamentary capacity cannot be over-estimated. It is in 
 them that the tendency of Courts to err is most apparent. 
 Finding that the aberration is given a wider range than such 
 as would merely indicate a groundless personal hostility or 
 some peculiarity eventuating in an inofficious will, the Courts 
 are sometimes led to seek in these cases proofs of a general 
 insanity ; whereas they are merely religious or superstitious 
 humors, or highly individualized peculiarities of disposition 
 or character. It is obvious that features analogous to mono- 
 mania are manifested, and perhaps speaking with pathologi- 
 cal exactness, they constitute monomania ; but as they fall 
 short of the legal requirements of that condition, as a cause 
 of avoiding a will they must either be regarded as constituting 
 a larger disqualification, or as being what they actually are 
 in contemplation of law, altogether innocuous. 
 
 We all know of numerous cases in which 
 
 * * * * "Some one peculiar quality 
 "Doth so possess a man, that it doth draw 
 " All his effects, his spirits and his powers, 
 "In their confluxions all to run one way." • 
 
 As a great English critic says, quoting the passage from Ben 
 Johnson, "there are undoubtedly persons in whom such 
 humors as Ben describes, have attained a complete ascend- 
 ency. The avarice of Elwes ; the insane desire of Sir 
 Edgerton Brydges for a barony to which he had no more 
 right than to the crown of Spain ; the malevolence which 
 long meditation on imaginary wrongs generated in the 
 gloomy mind of Bellingham, are instances. The feeling 
 
TESTAMENTARY CAPACITY. 3 1 
 
 which animated Clarkson, and other virtuous men against 
 the slave trade and slavery, is an instance of a more honor- 
 able kind." It is safer to regard these, and cognate cases 
 (and indeed it would be gross injustice to do otherwise), as 
 eccentricities, oddities, idiosyncracies— when they are not 
 merely religious or superstitious conceits and humors. 
 
 Passing over even such very valuable cases as Banks v. 
 Goodfellow, (in which Lord Cockburn has with his great 
 ability and acumen fully considered the whole subject, and 
 critically examined the English and some American adjudi- 
 cations), and many others in England which would well 
 illustrate the proposition now under discussion, I will refer 
 with some little particularity to two causes originating in 
 our own Surrogate's Court, each of which is very instructive, 
 and in which we can perceive the application of the correct 
 rule. 
 
 The case of Thompson v. Quimby is reported in the second 
 volume of Bradford's Surrogate's Reports. There were 
 several reasons assigned by the contestants in this case, for 
 their attack upon Mr. Thompson's will. Among them was 
 the allegation "that the decedent was laboring under delu- 
 sions amounting to insanity, and had not a disposing mind 
 during the preparation or at the time of the execution of the 
 will." The instrument was drawn and executed during his 
 last illness, and but a short time before his death. It was a 
 voluminous document, and in it some provision was made 
 for many of his descendants and kinsfolk, mentioned therein; 
 but the bulk of his large estate was left for charitable or 
 religious purposes. The instrument was prepared by eminent 
 counsel, and bears the evidence of very intelligent construc- 
 tion, it being simple in its scheme, although multifarious in 
 its details. The testimony established that the testator was 
 a believer in many superstitions of a vulgar character, and 
 had held them with great pertinacity for many years. Among 
 other delusions, it was claimed that he believed in the black- 
 art ; that he read and experimented upon the teachings of 
 books of magic; was familiar with disembodied spirits, that 
 he could evoke them "from the vasty deep." or at least, like 
 Owen Glendower, said he could, and that he declared they 
 
32 MONOMANIA, AS AFFECTING 
 
 came when he did call them ; that he could work spells 
 by formula or incantation; that he could cure diseases by 
 amulets or by papers bearing certain cabalistic inscriptions, 
 which were to be worn about the person of the sufferer. He 
 professed to know where Captain Kidd's treasures were 
 secreted at Montauk Point, and actually in company with 
 another, undertook by the aid of a divining rod to locate the 
 exact spot, at which these riches were buried. The experi- 
 ment was a failure, because as he declared the charm under 
 which he worked was broken by inopportune remarks of 1 his 
 attendant. On one of these occasions, he beheld the appari- 
 tion of the Devil (he had as much orthodoxy at least as 
 consisted in a devout faith in that personage) in the shape of 
 a large black bull — he recognized the father of evil in his 
 taurine manifestation. It was also alleged that he claimed 
 to be able to see ghosts ; that he believed in the supernatural 
 character and significance of dreams; also in the Philosopher's 
 stone, which was to be constructed of materials all of which 
 he possessed except one; that he also believed in clairvoyance, 
 spiritualism, mesmerism, magic glasses; that every person had 
 three eyes, one spiritual and two physical, and that he owned 
 a whistle with which he could get everything he wanted. 
 
 This and much more to the same effect was invoked as 
 testimony to prove the insanity of the testator. While the 
 Surrogate did not accredit all that was deposed to in this 
 connection, he did arrive at this conclusion, viz.: "after 
 making every reasonable allowance however, I have no doubt 
 but that Mr. Thompson's mind was impressed with a sincere 
 belief in many absurd notions. There seems sufficient evi- 
 dence to show that he believed in mesmerism, clairvoyance, 
 divining and mineral rods, dreams and spiritual influences. 
 He searched for the supposed deposits of money by Kidd, 
 and ascribed his failure in two instances to the utterance of 
 certain words by the operator. That he said he saw the 
 Devil in the shape of a bull seems to be well established. 
 He believed likewise in the efficacy of cures for rheumatism 
 and fever and ague as above stated." 
 
 On the other side, it was shown that the testator was a 
 very shrewd and intelligent man of business, clear of vision 
 
TESTAMENTARY CAPACITY. 33 
 
 and firm and decided in his judgments. He was largely en- 
 gaged in affairs; was connected with moneyed institutions; had 
 succeeded in accumulating wealth by his own efforts; was 
 associated in large and legitimate enterprises of commerce. 
 His general health was good for a man of his advanced age — 
 seventy-five years — although he had suffered injuries from :i 
 fall, and had had epilepsy; but these occurrences were not 
 proven to have affected his general capacity to transact 
 business, nor did his delusions appear only after these events 
 occurred — on the contrary the fact was that he entertained 
 them quite as stubbornly before, as after such events happened. 
 Now there was nothing whatever to connect any of these 
 abberations or infatuations of the testator with the provisions 
 of his will, or with any one of them. Hence, although his 
 mental peculiarities were confined to one class or correlated 
 system of delusions, they did not affect his testamentary 
 disposition of his property, and there could not therefore 
 have been a successful impeachment of his will on the ground 
 of monomania or partial insanity. The very able and astute 
 counsel of the contestants, therefore sought to make these 
 facts a basis of a contention of general insanity. Here 
 were phases of an extravagant and exaggerated belief, 
 widely variant from the ordinary standards, so much so that 
 in their ramifications and details they seemed to include 
 many subjects, allied, it is true in one sense, but in another 
 they were wild fancies, delusions and incoherences, betokening 
 a frenzied condition of mind. Should such a man, who even 
 in his last illness confided to his physician his conviction of 
 many of his notions, be regarded as possessing that calm and 
 sober judgment which would enable him, after taking a de- 
 liberate survey of his situation, to make a rational disposition 
 of his estate? His beliefs, his acts, his follies, his diseases, 
 all threw about him the suspicion of lunacy, a suspicion 
 which it was claimed was ripened almost to a certainty that 
 he was not conscious that in leaving his great property to 
 charitable and religious uses and purposes, he was committing 
 an injustice to his posterity, which, were he sane, he would 
 never have contemplated doing. 
 
 A careful consideration of the proof in this case will show, 
 
34 MONOMANIA, AS AFFECTING 
 
 that the testator's condition of mind was either that of a 
 monomaniac, or merely of a person of enormous credulity 
 upon theoretical and abstract subjects, of the value of some 
 of which he attempted to judge by practical experiment. 
 All his delusions were connected with such matters, which 
 did not and could not have any effect or influence whatever 
 on the dispository act of a man constituted as he was in other 
 respects. Mesmerism, clairvoyance, divining and mineral 
 rods, and the whole arsenal of Dousterswivelian tools ; 
 dreams, and spiritual contacts and influences, were not in his 
 case original creations of his perverted fancy. They were 
 the results of reading, association, education, and possibly of 
 hereditary and family influences extending through genera- 
 tions. And so the learned Surrogate (Bradford) regarded 
 them. He wisely applied to the circumstances of the case, 
 the inferences to be drawn from the history of such phenom- 
 ena as constituted the testator's stock of ascribed delusions — 
 referred to the difficulty of the ascertainment of precise con- 
 ditions of mind, and after adverting casually to the doubtful 
 frontier which separates madness in its various forms and 
 shades from sanity (a topic which Dr. Maudesley has lately 
 elaborated in his comments upon cases lying in the border 
 land, between soundness and unsoundness of mind), he pro- 
 ceeds to consider the reasoning which induces a reliance upon 
 such circumstances as those involved in this case, as estab- 
 lishing a general insanity, and brands that reasoning as 
 fallacious. The conclusion he arrives at is well worthy of 
 citation. He says, "the danger of this kind of reasoning 
 lies in regarding, as indications of radical disease, mental 
 phenomena existing in all ages and among all classes; and 
 dependant upon natural faculties and propensities, or arising 
 from adventitious circumstances of early impression and 
 education." "Being of impression that mere speculative 
 belief does not of itself afford a clear test of insanity, I do 
 not esteem the peculiar opinions entertained by the decedent, 
 sufficient to establish mental derangement. 
 
 The Surrogate decreed in favor of the will, and the Supreme 
 Court sustained his decree. 
 
 I must leave this case and many very useful and pertinent 
 
TESTAMENTARY CAPACITY. 35 
 
 suggestions arising from it, to consider before closing some 
 of the illustrations furnished of the views I have been en- 
 deavoring to expound, by the recent case of the Bonard will. 
 This case is of the very greatest value, for in addition to the 
 facts which transpired in it being such as to present very 
 distinctly the question of the testamentary capacity of one 
 who entertained singular tenets of a so-called faith, it was a 
 cause tried and argued with great skill and unusual ability 
 and one in which the testimony of the medical experts was 
 sifted with a thoroughness and minuteness which elicted 
 much instruction upon the more obscure phenomena of men- 
 tal disease. 
 
 Louis Bonard, a native of France, died at the City of New 
 York, in the Roman Catholic Hospital of St. Vincent, on 
 the 20th day of February, 187 1. His life had evidently been 
 an eventful one, for while the testimony leaves in doubt 
 much, and fails altogether to account for more of his antec- 
 dent history, it was known that he had been a traveler, and a 
 trader in South and Central America, and that he had been a 
 dealer in sham jewelry ; that he came to this country some 
 time prior to the year 1855, and had brought with him money; 
 that he had had losses, but at length became successful, and 
 made investments in real estate, which enabled him to accu- 
 mulate a fortune amounting at the time of his death to about 
 one hundred and fifty thousand dollars. During the period 
 of his residence in New York he lived as a miser ; he pre- 
 ferred the society and companionship of artisans and mechan- 
 ics. He had no relations in America — nor in Europe so far as 
 was ascertained at the time of the trial — although it has since 
 transpired that he had kindred in France. He was a man of 
 erratic habits, and singular beliefs, the latter of which seemed 
 to intensify as his age advanced. He was a misanthrope, 
 but was possessed of an unbounded affection for the brute 
 creation. The evidence shows that he was a believer in 
 metempsychosis ; that he expressed the opinion that there 
 might be an Emperor in any animal he beheld ; that he re- 
 monstrated with a person who suggested it would be humane 
 to kill an injured kitten, because he averred there was a 
 human soul in the animal's body. But he was a man dex- 
 
36 MONOMANIA, AS AFFECTING 
 
 teroiis .and cunning in mechanical arts. He constructed 
 machines for various purposes ; he had mental resources 
 likewise, and was a reader of books. I think the testimony 
 fairly viewed established that he railed at religion and 
 priests— that he denounced the Church in which he was born, 
 but notwithstanding his invectives against it, he died in the 
 peace of the Roman Catholic Church and in its full com- 
 munion. 
 
 There appeared also the fact that Mr. Bonard combined 
 with his ardent love of animals an unbounded admiration for 
 the benevolence of Mr. Henry Bergh. Memoranda were 
 found among his papers, which plainly showed he had some 
 ulterior purpose concerning that gentleman. On the nth 
 February, 187 1, and while he was very ill, he made a will 
 bequeathing a portion of his property to two of his friends. 
 On the 13th he made another, revoking the former, and left 
 all his estate real and personal, to the Society for the Pre- 
 vention of Cruelty to Animals, of which Mr. Bergh was 
 then as he is now the honored President. 
 
 Here was a case bold in its outlines and presenting the 
 salient feature of dogma of a heathen creed, constituting 
 the avowed belief of a man who was born and who died in 
 the Catholic faith. The contestants of his will, who sought 
 to avoid it on the ground of want of mental ability, relied 
 upon the proof of this belief, so unusual among Europeans 
 and Americans, and on that evidence which was offered to 
 show the peculiarities of his character and conduct, as estab- 
 lishing unsoudness of mind in the form of monomania. 
 
 The medical experts did not regard the entertainment of 
 the belief in metempsychosis by Mr. Bonard, as evidence of 
 an insane delusion. One of the very learned physicians who 
 testified in the case did not find evidence of "positive irra- 
 tionality" in the circumstance that a man of wealth who 
 lived in one of the poorest districts of the city, in a cheap 
 boarding house, on being taken ill and believing that his sonl 
 was about to pass into the body of an animal, left all his 
 possessions to a Society, the only object of which was to 
 protect animals. Another physician of very eminent au- 
 thority in this class of cases, declared that under such cir- 
 
TESTAMENTARY CAPACITY. 37 
 
 cumstances the belief mentioned should not be regarded as 
 insane delusion — and for the reason that if the conviction 
 had the dominion over him which a delusion would have 
 had, it would have in some manner betrayed itself in the 
 language or in the provisions of the instrument; that if 
 Bonard held as real matter of religious conviction the belief 
 that his soul would migrate to a habitation in the body of an 
 inferior animal, that that would have been expressed or in 
 some way manifested in the will. The same gentleman says, 
 that "no religious belief, no matter how absurd it may be, is 
 of itself sufficient evidence of a man's insanity ;" but what 
 is exactly religious belief and what is not, was of course not 
 attempted to be explained. 
 
 The opinion of the Surrogate in this case is very able and 
 interesting. He declares that the belief which Mr. Bonard 
 held did not constitute insanity; that "if a Court is to as- 
 cribe insanity to a man or a class of men constituting a sect, 
 according to his or their, opinion or belief as to a future 
 state, and a particular sect had in fact attained to a real 
 knowledge of that future, the logical deduction would neces- 
 sarily be, that a major portion of all mankind comprised in 
 all other and different sects were of unsound mind, or mono- 
 maniacs on that subject." The learned Surrogate then pro- 
 ceeds to consider the facts of this case not as presenting one 
 of general insanity, but as one in which the only appearance 
 of unsoundness of mind consisted in the alleged monomania 
 concerning the transmigration of souls. But lie gives effect 
 to the fact that there was no connection necessarily of this 
 belief with the terms of the will — that there was nothing in 
 the will to show that he held the opinions alleged any more 
 than that he was impressed with a belief in utter annihilation 
 after death ; nor was there any testimony to associate any 
 provision of the will with a belief respecting the future con- 
 dition of the human soul. These considerations, coupled with 
 the further fact that "the testator had neither wife nor child, 
 father or mother, or any known, near or remote relatives 
 living, or others on whom he was or felt himself under obli- 
 gation to bestow his property," induced the Court to sustain 
 the will and overrule the allegation of mental incapacity. 
 
$8 MONOMANIA AS AFFECTING 
 
 Such was, in brief (in the medico-legal aspect of it), the 
 celebrated Bonard will case, and such was the wise and 
 proper disposition made of it But one step further however, 
 and the will could not have been properly sustained, had 
 Bonard's relatives appeared to contest it. Introduce one little 
 circumstance into the narration, an additional factor into the 
 computation, and the harmless humor or conceit of Mn 
 Bonard would have become aggravated into an insane delu- 
 sion, such as the law would have regarded fatal to testament- 
 ary power. For instance (and it points the rule with great 
 clearness), suppose Mr. Bonard, holding the opinion that the 
 souls of men after death infuse themselves into the bodies of 
 brutes, had learned before he made his will that Mr. Bergh 
 had announced (as he did after Bonard's death), that it was 
 his intention to dispose of a part of that which should be left 
 to the Society for the Prevention of Cruelty to Animals by 
 Bonard, in the application of carbonic acid gas to the suffo- 
 cation of vagrant dogs who should be captured in the mid- 
 summer raids and carried to the public pound for execution. 
 Suppose that Bonard, apprehending that after his decease his 
 soul might pass into the body of such an animal (the vicissi- 
 tudes of whose uncertain city life might lead him finally to 
 such a doom), should have provided in his will against the 
 possibility of the abridgement of his translated life by his 
 own money, at the instigation of his own friend, his chosen 
 posthumous almoner. To consider so is not to consider too 
 curiously — for many wills have contained even stranger pro- 
 visions than such an one would have "been. This would have 
 indicated that the dispository provisions were intended by 
 the testator for his own physical comfort and benefit in 
 another sphere of physical existence, and would have fur- 
 nished one and the principal element of that quality of un- 
 soundness of mind which the law recognizes as such in cases 
 of disputed wills: Where the grotesque idea is the basis of 
 a belief so sincere as to lead to its incorporation in the will, 
 and to be indubitably the producing cause of its provisions, 
 it affects the testamentary act and is evidence of the diseased 
 condition of mind. 
 
 I must resist the temptation to pursue the subject further. 
 
TESTAMENTARY CAPACITY. 39 
 
 To summarize by way of conclusion the views I have en- 
 deavored to present in the foregoing observations : — the 
 law as it now stands and should be administered upon the 
 subject of partial insanity (and almost all the cases of partial 
 insanity are cases of monomania purely), is of compara- 
 tively recent origin; it is the product of improved knowl- 
 edge respecting the diseases of the mind, and of more lib- 
 eral as well as acurate views respecting the freedom of the 
 will, and the restraints proper to be put upon testamentary , 
 powers. It consists of a rule susceptible of application to 
 all cases of the character under consideration ; but one which 
 is affected by the general tendency of Courts to revert to 
 antiquated ideas upon topics resting purely in authority ; a 
 rule which is liable to be lost sight of in the attempt to find in 
 cases of monomania, evidences of a general insanity. It 
 does not require that to prevent the making of a valid will, 
 a man shall be bias and thwart in all his mental processes ; 
 but it is a rule which discriminates in favor of those who are 
 the natural objects of his bounty and affection ; and it pre- 
 vents injury and injustice being done to such, because of a 
 testator's delusions, fancies and irrational prejudices, incases 
 where they have evidently affected his acts ; but it does not 
 deny the testamentary privilege to the man whose eccentrici- 
 ties, beliefs, follies or infatuations may be as absurd and 
 fantastic as the incoherences of a half-remembered dream, 
 provided in all other affairs of life he is of competent judg- 
 ment, and his vagaries have not led him to do injustice to his 
 kindred, or to harden his heart against those who are the 
 proper objects of his testamentary bounty. 
 
THE 
 
 DIAGNOSIS OF HANGING, 
 
 A Medico- Legal Study.* 
 
 By AMBROISE TARDIEU, 
 Professor of Legal Medicine in the Faculte de Medecene, Paris. 
 
 Suicide furnishes almost all examples of this mode of 
 death. Suicide by hanging is most common in prisons, in- 
 sane asylums, and similar places, where circumstances prove 
 that homicide could not have taken place. 
 
 Signs of Hanging. — These may be divided into the symp- 
 toms observed up to the time of death, and the condition of 
 the body as observed after death. 
 
 The material for the first series of facts has been derived 
 from experiments made upon animals, both by Dr. Faure and 
 the author; from the statements of resuscitated persons; from 
 the observations of Fleischmann (of Erlangen), who experi- 
 mented in hanging himself; and from the great collection of 
 cases and drawings made by Dr. Jacquemin, chief physician 
 to the prison Mazas. 
 
 At the moment when the body, suspended by the cord, is 
 abandoned to its own weight, a great heat is felt in the head ; 
 tremendous noises, and as it were a deafening music, ring in 
 the ears; flashes shoot before the eyes ; the legs seem to have 
 acquired an extraordinary weight,and then all sensation is lost. 
 
 * Note. This translation of Dr. Tardeiu's paper was read before the 
 Medico-Legal Society of New York. 
 
 The translation is not full, but we give it as made and read. The original 
 paper of M. Tardien was published in "Annales d'Hygiene Publique," January, 
 1870.— Editor. 
 
DIAGNOSIS OF HANGING. 41 
 
 Sometimes consciousness is lost from the very first moment 
 owing to the occurrence of syncope ; a number of resuscitated 
 persons have stated this in the most positive manner, and the 
 author believes it to be more frequently the case than is gen- 
 erally supposed. For the popular opinion that a voluptuous 
 sensation is felt during the first moments, the author finds no 
 authority whatever. Certain persons, however, who have 
 been resuscitated, have described the vague languorwhich pre- 
 cedes syncope, mistaking it for sexual sensation. 
 
 The second, or unconscious phase is marked by convul- 
 sions of the face, and then of all the limbs, particularly the 
 legs. This phenomenon was always present in the experiments 
 made upon animals. In the "prison Cellulaire" several of the 
 convicts attempted to suspend themselves from the upper part 
 of the doors of their cells, but their involuntary convulsive 
 kicks against thesedoorsbroughtimmediate succor(whichthey 
 would rather have done without). The knowledge of this fact 
 spread among the convicts, and those who wished to die un- 
 disturbed took the precaution, before hanging, of placing their 
 mattresses so as to prevent their heels from kicking the door 
 This convulsive period is scarcely ever absent. 
 
 Apparent death ensues. It is during this period that re- 
 laxation of the sphincters occurs. But the latter occurrence 
 is confined to a few cases only ; in the very complete and 
 scrupulous observations made by Jacquemin, the passage of a 
 certain quantity of urine and faeces is noted in but two out of 
 forty-one cases. 
 
 Death generally comes soon. The author entirely discred- 
 its the theory of Ollivier of Angers, that it comes sooner when 
 the cord is placed above the larynx. The animals made the 
 subject of experiment die in from twelve to twenty minutes, 
 very seldom before that period (Faure). In man, there is 
 every reason to think that death usually occurs sooner. A pris- 
 oner, named Meignant,at Mazas, hung himself from the bars of 
 the promenoir; he had been taken thither at half-past ten, and 
 at forty minutes past ten (the dates are very exact) the custodian 
 of the court-yard found him hanging dead. In another case, a 
 woman was resuscitated after hanging seven minutes. A. 
 Taylor considers this possible, in general, after the lapse of 
 
42 DIAGNOSIS OF HANGING. 
 
 five minutes. Fleischmann perceived the symptoms of stupor, 
 noise in the ears, and sensation of weight, at the end of two 
 minutes in one experiment, and ot half a minute in another ; 
 but the application of the cord upon the trachea provoked 
 them immediately. In most cases, and under ordinary condi- 
 tions, we are entitled to infer that death takes place in about 
 ten minutes. Accounts of very prolonged resistance to death 
 are mostly apocryphal. But, of all facts of this sort,* the fol- 
 lowing, observed by Drs. Clark, Ellis, and Shaw, of Boston, is 
 the most curious (quoted from Parrot's These de Concours', 
 i860). 
 
 "The criminal, aged twenty-eight, weighed 130 pounds, 
 and was very vigorous. He was executed at 10 a. m. It is 
 reported that, there was not the least perceptible struggle or 
 convulsion. This shows that death was not caused by rapid 
 asphyxia, which is always accompanied by violent convulsions. 
 The lungs and brain were found in a normal state. The pri- 
 mary cause of death, beyond a doubt, was syncope, due to 
 emotion or to the cerebral excitement caused by the sudden 
 fall through a distance of seven or eight feet. After hanging 
 seven minutes, the heart was distinctly heard to beat 100 times 
 in a minute. Two minutes later there were 98 beats ; three 
 minutes after that only 60, very weak ; in two minutes more 
 the sounds had disappeared. After hanging twenty-five min- 
 utes, the body was taken down; there was no cardiac bruit or 
 impulse ; the face was purple, though a small space near the 
 ear (where the cord had exerted no pressure) might probably 
 have given passage to the blood. The eyes and tongue were 
 not prominent; the pupils were dilated. The cord had been 
 attached just above the thyroid cartilage. In fifteen minutes 
 more the cord was loosened ; after which the body and face 
 gradually became pale. The vertebral column had not been 
 injured. No emission of semen had occurred which, corre- 
 
 * "A fact of this sort." Important as is the case described, its true sig- 
 nificance is not that which the learned professor, by implication, attaches 
 to it. The case was originally reported as. one of persistent instability of 
 the right auricle after death. There was no doubt, in the minds of the 
 observers, that the criminal was dead when taken down. The auricular 
 pulsation continued for a full hour after every organ of the body, includ- 
 ing the brain and cord, had been examined. The "pulsation" in the sub- 
 clavian vein was not indicative of circulation, but was simply a to-and-fro 
 movement — an oscillatory •viaye.—Note by translator. 
 
DIAGNOSIS OF HANGING. 43 
 
 sponds with the absence of asphyxia and of spinal lesion. At 
 11.30 a regular movement of pulsation was perceived in the 
 right subclavian vein. On applying the ear to the chest, it 
 became clear that this was due to the heart ; a regular and 
 distinct beat, with a light impulse, was observed 80 times per 
 minute. The thorax was opened, and the heart exposed, with- 
 out affecting the pulsatory movements. The right auricle was 
 contracting and dilating with regularity and energy. At noon 
 the pulsations were 40 per minute ; at 1.45; only 5; the spon- 
 taneous movements ceased at 2.45, but the irritability did not 
 disappear until 3.18, more than five hours after the execution. 
 It is infinitely probable (says Parrot) that the sound heard be- 
 fore opening the chest depended solely upon the movements of 
 the auricle. 
 
 Effects of Hanging, after Resuscitation. — To elucidate this 
 point the author contributes the following histories, which will 
 serve as types : 
 
 Case I. — A man hung himself ; was discovered insensible, 
 and was taken to the hospital St. Louis, where he remained 
 unconcious for two days. On the third day he spoke with 
 extreme difficulty, and in a scarcely-audible voice. His mem- 
 ory was completely lost. Incontinence of urine and paralysis 
 of the rectum ; severe pains and persistent twitchings of the 
 lower limbs. Respiration embarrassed ; moist rales all over 
 both sides of the chest. Catarrhal cough, thick expectoration 
 and fever. A deep, parchment-like furrow upon the front of 
 the neck. 
 
 Case II. — A man hung himself among the scenes of a the- 
 atre. It is not known how long he remained hanging ; but 
 he lost consciousness directly, and remembered nothing until 
 he came to himself in the vehicle which took him to the hos- 
 pital. When found he appeared quite dead. At the hospital, 
 one hour after the attempt at suicide, he answered with pre- 
 cision and intelligence ; his face was swollen, his lips purple, 
 and he spat up some blood. While his head rests on the pil- 
 low he suffers nothing, and feels only a little numbness in the 
 head and neck ; but, when he tries to raise or turn his head, he 
 feels violent pains; he cannot place himself in the sitting pos- 
 ture without very severe pains in the neck. Speech easy and 
 
44 DIAGNOSIS OF HANGING. 
 
 natural. Deglutition extremely painful. The mark of the 
 cord in front is on a level with the upper angle of the thyroid 
 cartilage ; behind, it is about two fingers' breadth above the 
 spine of the vertebra prominens ; it is two centimetres broad, 
 is red, and in parts excoriated ; on the right side it is more 
 marked, and presents several violet marblings. No loss of 
 semen during or after the act ; no erection observed; no in- 
 voluntary evacuation. Next day, better ; no new symptom ; 
 but a certain numbness of the right side of the head, neck, and 
 shoulders remained for a week, to which succeeded a disagree- 
 able sensation of cold, chiefly felt in the night. Sudden violent 
 shoots of pain in the face from time to time. A deep, red line 
 still remained on the right side of the neck after the lapse of 
 two weeks. 
 
 Post-mortem Phenomena. — i. Position of the body. Sus- 
 pension is often incomplete. Among 261 such cases, the 
 author finds the feet recorded as resting on the ground, in 168; 
 the body, kneeling in 42 ; the extended and lying in 
 29 ; sitting, in 19 ; squating, in 3. Without seeing the draw- 
 ings it is impossible to get an exact idea of the facility with 
 which one can die without being "in the least suspended." 
 In such cases we must suppose a decided effort of will, with 
 the purpose of abandoning the body to its own weight ; or 
 else the momentary constriction of the cord when tightly 
 drawn, causes a rapid loss of consciousness, and the body, be- 
 coming inert, bears its weight upon the neck. The danger of 
 experimenting upon one's own body is manifest. If the feet 
 are found touching the ground, it is necessary to remember 
 that this may have happened through stretching of the cord. 
 If the cord is found broken and the body lying beneath, the 
 rupture may have been caused by the weight of the body, or 
 by the strain occasioned by its convulsive movements. This 
 depends upon the position of the knot. 
 
 2. Position of the head. It is usually bent forward; some- 
 times erect, sometimes turned a little to one side, very rarely 
 turned directly back. 
 
 3. The arms may fall by the sides, or may rest in various 
 attitudes upon neighboring objects, or the hands may be 
 rigidly grasping the noose, or some other thing. 
 
DIAGNOSIS OB' HANGING. 
 
 45 
 
 4. The lower limbs assume various positions, as may read- 
 ily be inferred. They usually have a violet-red tint, deep in 
 proportion to the duration of hanging. 
 
 5. The face during the first moments is pale, almost nat- 
 ural; hut it usually soon becomes swollen, and of a violet 
 hue, which increases in depth. This persists for a certain time 
 after resuscitation. If the dead body remains hanging, the 
 color becomes deeper, the eyes are injected and prominent, the 
 tongue very often protrudes, or is locked between the teeth ; 
 but the position of the tongue does not depend upon the point 
 of application of the cord. 
 
 6. The neck is usually elongated in a remarkable manner. 
 The print of the cord may present various appearances; 
 for the variety of articles used in suicide by hanging is truly 
 extraordinary. In prisons and insane asylums it is impos- 
 sible, with the utmost care, to prevent the patient from ob- 
 taining his instrument. A soft fabric, pressing but a short 
 time on the neck, may leave but slight traces, or none at 
 all. But a furrow is generally present, most frequently 
 above the larynx. The skin of the furrow may be dry, 
 resembling parchement, or of a silvery nacreous aspect ; 
 the edges may be swollen from passive congestion, butecchy- 
 moses are rare. 
 
 7. The sexual organs do not experience an orgasm; at the 
 period when emission takes place, sensation is entirely abol- 
 ished; congestion readily occurs in the erectile organs,through 
 the force of simple gravitation; there is no proper erection, 
 and but very incomplete emission. 
 
 8. Internal organs. The muscles of the neck may, though 
 very rarely, be the seat of ecchymosis or sanguineous infiltra- 
 tion. Fracture of the cartilages of the larynx or hyoid body 
 is also very rare, and so is the section of the middle and inner 
 coats of the primitive carotid artery. Luxation of the axis or 
 atlas requires great force ; it would seem that the knot must 
 be tied under the chin in order to produce this effect. The 
 larynx and trachea generally present a uniform blush on then- 
 internal surface; the lungs are usually congested, especially 
 at the base. The gastro-intestinal mucous membrane may 
 sometimes present a degree of redness which might be mis- 
 
46 DIAGNOSIS OF HANGING. 
 
 taken for the effect of an irritant poison. The brain is not 
 usually congested, but on the contrary is anaemic, inasmuch 
 as the internal jugular veins are not compressed. 
 
 Did the Hanging take place during Life? — Important as 
 this question may sometimes be, we nevertheless possess no 
 one absolute and invariable sign which would enable us to 
 answer it in the affirmative. Orfila hung, during twenty-f our 
 hours, the corpses of twelve persons who had died of various 
 diseases; and no change was noticed in the appearance of the 
 face; the pallor of death was not replaced by lividity. Or- 
 fila's experiment, however, was not made on persons just dead; 
 if it had been, the effect upon the face would doubtless have 
 been manifest. And, on the other hand, even if the sus- 
 pension takes place during life, the face may be pale if the 
 body has hung but a short time. All the marks left upon the 
 neck may be produced upon the dead body as well as upon 
 the living. Extravasations of coagulated blood are doubtless 
 a vital phenomenon, but they are of rare occurrence. When 
 they bear a certain relation to the position of the cord, they 
 are of incontestable value as proof that hanging look place 
 during life. Section of the coats of the carotid is exceedingly 
 rare; and, moreover, it maybe produced experimentally, after 
 death, as may the luxation and fracture of the verebras. In- 
 filtration of coagulated blood is a decisive sign that fracture 
 took place during life. Orfila and Donne have shown the 
 presence of spermatic fluid in the urethra of men dead of 
 various diseases, and who were not hanged; in fact, it is pres- 
 ent very frequently after natural and constantly after violent 
 death. Evacuation of urine or fasces was noted only twice in 
 the forty-one cases of suicide at the "prison Cellulaire." The 
 presence of bloody foam in the air-passages, the rupture of 
 superficial plumonary vesicles, and the engorgement of both 
 lungs, particularly at their bases, would have a real value as 
 signs of hanging, if they were more constant; and, joined to 
 the absence of the sub-pleural ecchymoses, and the extended 
 tracts of emphysema characteristic of other modes of death, 
 the pulmonary lesions may be considered of great importance 
 in proving that hanging took place during life. The nervous 
 centres present no important evidence bearing upon this point. 
 
THE PROPER STATUS 
 
 OF THE 
 
 INSANE&FEEBLE MINDED 
 
 JOHNORDRONAUX, LL.D., State Commisioner of Lunacy.&c. 
 
 GENTLEMEN-Tlie pleasure afforded me by the opportunity of 
 addressingyou this evening is greatly enhanced by the reflection 
 that I am permitted to come simply as a member of this society 
 to contribute, in an informal way, something to its field of dis- 
 cussion, and thus to testify to my interest in the good work it is 
 doing. And I trust, therefore, that — in emulation of the very 
 excellent papers to which you have now become habituated to 
 listen, and which already form a volume of authorative responsa 
 prudehtum — mine may prove worthy to outlive the period of its 
 delivery and be found deserving of a place in that erudite series. 
 To those of us, also, who have long felt the rfecessity of some 
 forum like this, in which to discuss those vexatious problems of 
 human responibility which lie midway of natural and positive 
 laws, it cannot be other than matter of inducement to accept 
 any occasion of appearing before a society, whose meetings 
 present a free and unpredjudiced field in which to discuss all 
 questions relating to medical jurisprudence. Here, electing 
 no invidious wall of inclusion or exclusion to mark the narrow 
 limits of a professional curtilage, it throws open its fields of ir>- 
 investigation as a common-appurtenant ' to both profess- 
 ions from whose syncretism it is born. Here, fetter- 
 ed by none of the Idols of the tribe, the cave, or 
 the market-place, each is invited to bring his contribution 
 before a senate of peers sitting in equity. Here no 
 
 Read before the Medico-Legal Society of New York, Feb. 25, 1875. 
 
4§ THE INSANE AND 
 
 Shibboleth of "Sic magister dixit" silences the voice of honest 
 criticism in its efforts to scan the foundationsof questionable au- 
 thority. And here, too, no one trembles at disturbing the dust 
 of tradition, which, by accumulation, is so often mistaken for a 
 mountain of truth, when in fact it is only the sweepings of 
 metaphysical workshops, or the sonorous dicta of men whose 
 opinions have been received as but a fraction lower than di- 
 vine inspirations. 
 
 It is under the shadow of these fundamental principles in 
 the organization of this society, and because I believe it to con- 
 stitute, when convened, a true forum of justice, with "the 
 constant and perpetual wish to render every one his due," that 
 I am here to invoke its attention to a class of persons not yet 
 recognized with sufficient correctness, in the legal differentia- 
 tion of the civil status of citizens. In asking you, therefore, to 
 consider with me what are the demands made by our enlight- 
 ened age in behalf of the jurisprudence of the insane with ref- 
 ference to determining their proper legai status, I desire at 
 the outset to announce that it is not my purpose, nor within 
 the legitimate scope of my present subject, to discuss the' 
 medical problems associated with it. The two cannot well be 
 combined in one paper, without either widely extending it, or 
 doing injustice to both. Hence I shall limit myself to the' 
 discussion of such points in the history of our common law 
 jurisprudence as appear to me to indicate a want of knowl- 
 edge of the progress made in the scientific study of insanity, 
 since the rudiments of that common law were first embodied 
 in legal adjudications. And in doing this it will frequently 
 be necessary to animadvert upon that traditional disposition 
 to follow rules of proceedure which were never other than 
 self-contradictory, and are now being steadily overthrown in 
 other directions, in obedience to the stern logic of altered cir- 
 cumstances and the despotism of invincible facts. 
 
 Although Christianity is acknowledged to form the basis of 
 the common law, yet it is a painful truth that the latter, in its 
 anxiety to prevent all interpolations of ethical dogmas into its 
 canons from fear of ecclesiasticism, has always in the past re- 
 sisted to the very verge of inhumanity the enforcement of 
 
FEEBLE MINDED. 
 
 49 
 
 moral obligations.* And were it not that the spirit of justice 
 was stronger than the letter of that law, and Chancery arose as 
 a divine tribunal in England protesting against the cast-iron 
 rigors of the former, were it not for this, society must have 
 inevitably gone to pieces, or continued, as under the Feudal 
 law, one only of brutal masters and emasculated serfs. When 
 I recall the fact, also, that the spirit of the common law resist- 
 ed that developement of human confidence which is expressed 
 in such fiduciary relations as Uses and Trusts ; that it made 
 a husband responsible for the debts of a wife created before 
 marriage, even though that wife might have had a separate 
 estate of k her own; that it enabled a husband to appropriate tliat 
 estate to his own use, just as fast as he could convert it; that 
 it gave him the first and exclusive right to his wife's earnings, 
 which he might squander in indolence as he pleased; that he 
 could chastise her or imprison her in his house; that it denied 
 to women the benefit of clergy; that it absolved a mother from 
 the duty of supporting her infant child after the death of its 
 father, and gave her in turn no remedy for its seduction; that 
 it destroyed confidence and responsibility between seller and 
 buyer by recognizing the profligate doctrine of caveat emptor, 
 thus tempting men by impunity to impose upon the weak and 
 ignorant, and to practice upon the pirate's principle, 
 
 "That they should take who have the power, 
 And they should keep who can." 
 
 When I recall the few traditional canons, the outgiowth of a 
 purely commercial spirit, and which I have selected at ran- 
 dom from among many for simple illustration of the binding 
 despotism of proscription, or trace the tangled web of cunning 
 contradictions framed alone in the interests of sophistry, as in 
 the old statutes De Donis Conditionalibus and Quia Emptores, or 
 the collusive doctrines of fines and common recoveries — or when 
 such dogmas are cited as part of a system of laws too sacred to 
 
 * It is a singular fact in this connection that the very wording of cur statute 
 law is intended to exclude all possibility of an equitable construction, whence 
 arose the cynical maxim "Durum sedita lex scripta est." 
 
 Vide Philimore's "Maxims of Jurisprudence," introductory chapter: also 
 Dwarris and Sedgwick on Statutes. 
 
50 THE INSANE AND 
 
 be criticised, then truth compels me to say that, on the con- 
 trary, there is every reason to justify us in constantly revising 
 and amending this system, so as to make it conform more and 
 more to the enlargments of justice demanded for all in this 
 age of personal equality. It is no wonder, therefore, that the 
 framers of our State Constitution should have perceived the 
 inherent antagonism between many of the doctrines and all 
 principles of personal independence, and in begining their 
 warfare upon them by abolishing feudal tenures and perpe- 
 tuities, they have set us an example, which, as a justice-loving 
 people, we have not been slow to follow in our expanding 
 jurisprudence. 
 
 It is more particularly on this account, and because we have 
 emerged in other directions from this house of legal bondage, 
 and dare question the authority of its principles whenever 
 they are seen to contravene natural justice, that I now ask 
 your attention in a direction where the sunlight of truth and 
 the redeeming hand of equity have not yet sufficiently pene- 
 trated. In the conservatism of opinion which the practice of 
 law is calculated to engender, we are apt to impart undue val- 
 ue to rules of action merely because they have been acqui- 
 esced in for years, and a certain prescriptive nobility thereby 
 surrounds them with a halo of specious sancity; whereas, if the 
 reason of the rule be inquired into, it will too often be found 
 to have been local and temporary, and thus in the progress of 
 time to have died out by natural limitation. All municipal 
 law ultimately rests upon natural justice bent to the necessi- 
 ties of our social life. But the former postulate is one which 
 must necessarily vary with the progress of religion and sci- 
 ence, just as much as the latter does with the shifting incidents 
 of civilization. Even heathen Rome recognized these prin- 
 ciples in the province of jurisprudence, for although the Di- 
 gest (Lib. i, Tit. 3, Art. 2, § 3) in its inquiry into the sources 
 of all law, affirms that u Omne jus aut consensus fecit, ant necessitas 
 constituit aut formavit consuetudo," yet the Praetor felt himself 
 under obligations to see that no strong moral claims should 
 be overlooked, and to that extent introduced the element of 
 equity into the jus honorarium for the purpose adjuvandi velsup- 
 plendi vel corrigendi juris civilis gratia. Hence the annual edict 
 
FSEBLK MINDED. 51 
 
 and the growth of a system of jurisprudence as elastic as the 
 wants of the people for whom it provided. 
 
 In the fundamental proposition from which all government 
 starts, viz., that men are rational beings, and their personal 
 accountability to God or their legal responsibility to society 
 rests upon this fact as a corner-stone, no civil part can logic- 
 ally be assigned to those who are either without natural abil- 
 ity to reach this standard of competency, as, for instance, 
 idiots; those who have not yet reached it, as, for instance, in- 
 fants; or those who having reached it have deteriorated and 
 fallen back into the ranks of the incompetents, as is the case 
 with persons of unsound mind. Although civilly in the State, 
 they are not civilly of the State. To such a person the lan- 
 guage of Cicero is admirably applicable; "Neque civem neque 
 peregrinum." It is from the universal recognition of these 
 truths that the insane have always been considered as a class 
 of legal infants requiring guardianship, and their rights and 
 their persons deemed objects of legitimate public concern: 
 
 The earliest mention of the Insane as a distinct class under 
 the English common law, occurs in the statute " De prxroga- 
 tiva Regis" 17 Edw., cap 10. The term there used, than which 
 there is no better furnished by modern science, is that of non- 
 compos mentis, a term of determinate meaning and limited to 
 persons of unsound mind. {Ex parte Barnesly. 3 Atk., 173 & 2 
 Eq. Cas. Abt. 580. But idiots, imbeciles, young children, per- 
 sons in the delirium of fever — persons when drunk either 
 through alcohol, opium, hasheesh or any other narcotic, are 
 not, in legal acceptance, insane. Legally speaking, no man is 
 born insane, because insanity is here understood to mean a 
 departure from, or perversion of a condition of pre-existing 
 mental health. 
 
 In England, from which we have so largely borrowed our 
 jurisprudence, jurisdiction over insane persons was always 
 the prerogative of the Court of Chancery, and exercised there 
 because the proper forum for questions belonging to conscience. 
 The common law predicating canons it upon the presumption 
 that all men are sane, cannot treat technically such a case of 
 misfortune as insanity without the intervention of a fiction. 
 A question of lunacy, therefore, wherever courts of Chancery 
 
5 2 THE INSANE AND 
 
 do not exist, belongs to the equity jurisdiction of common 
 law courts. It is well to bear this distinction in mind at the 
 outset, because it is a cardinal one which cannot be abandon- 
 ed without leading to confusion in procedure. Even where a 
 person had been tried upon a criminal charge and acquitted 
 on the ground of insanity, and was confined in a lunatic asy- 
 lum, the English Court of Chancery issued a commission in 
 lunacy, although admitting that it had no power over the per- 
 son of the lunatic. (In re Pcarce ex parte Clark, 8 jfur. 89; In 
 re Brooke Coop. C. C. 54; cited in Shelf or d, p. 114.) It is evident 
 that the latter ruling recognized the fact that the party was al- 
 ready in the custody of a superior jurisdiction, to which alone 
 he was for time being amenable. But had he been decreed a lu- 
 natic previous to his offense and confined in an asylum by or- 
 der of a court of equity, no other tribunal in like manner 
 could have controlled his person or disturbed the custody al. 
 ready attaching to him. While it was proper that the first 
 jurisdiction which seized him should control his custody, it is 
 also plain that the common law courts, having no technical 
 rights over non-sane persons, they being out. of its pale ex vi 
 termini, should deal with them only through their equity 
 powers. 
 
 As an outcome from the foregoing case which still repre- 
 sents existing principles of law, our whole procedure in cases 
 of lunacy continues to be tinged with palpable contradictions, 
 based upon an illogical difference between civil and criminal 
 responsibility. Thus it never has been, and never can be, ex- 
 plained on rational principles why, if the state be the guardian 
 in equity of all lunatics, and it has the power of issuing com- 
 missions under civil proceedings which shall give it the cus- 
 tody of such persons and the right to detain them in asylums 
 — it cannot rationally be explained why it has parted with 
 that same power, when a person accused of crime asks for its 
 protection against the technical jurisdiction of a common law 
 court. Yet such is the fact. The superintendent of the State 
 Asylum for Insane Criminals at Auburn informs me that, from 
 the history of the majority of convicts sent from our various 
 prisons to that institution there is strong presumptive evi- 
 
FEEBLE MINDED. 53 
 
 dence that these persons were insane at the time of their 
 conviction, and not fit subjects for trial, even if they were for 
 indictment. Such examples have been multiplied in the past 
 through a craven fear lest criminals should escape through 
 the loophole of insanity, an argument not reflecting much 
 honor either upon the composition of our tribunals or the in- 
 telligence of our juries, and which concedes, without admit- 
 ting precisely, what is most important to remember in this 
 connection, that is,that the most erroneous verdicts rendered in 
 the whole history of our criminal jurisprudence have been 
 rendered in cases where insanity was interposed as an answer 
 to an indictment. 
 
 The remedy for this consists in enlarging the equity juris- 
 diction of common law courts over lunatics in all cases, crim- 
 inal as well as civil. For equity isonlj natural justice, and cover 
 it as we may with artificial rules of procedure, it will still en- 
 deavor to make itself heard through them all. Like con- 
 science, it meets us at every step in life, asking simply to do 
 justice. Hence every honest appeal in lunacy, by whomso- 
 ever made, should be listened to as a petition in equity; and 
 in criminal trials, in particular where every presumption fa- 
 vors innocence, and every doubt enures to the benefit of the 
 defendant, the plea of lunacy should be heard and settled be- 
 fore proceeding to try a party whom the State has solemnly 
 declared to be incapable at law of committing a crime. 
 
 PAUPER LUNATICS. 
 
 The most useless, most unproductive, and most costly class 
 among our pauper population is unquestionably that of the in- 
 sane. They do little, consume much,andlive long. They require 
 more care than the bed-ridden, and are a source of perpetual 
 anxiety to all about them. Yet, as the wards of the State, we 
 owe them custodial care and protection. Nevertheless it is 
 among the most difficult of things to make county officers 
 understand their proper legal status. In their eyes, indeed, 
 they are neque civem neque peregrinum, neither citizens, nor yet 
 aliens. They regard them mostly as unprofitable drones, and 
 cannot believe them to be sick and hopelessy deteriorated be- 
 cause they are not in bed, do not miss their meals and do not 
 
54 THE INSANE AND 
 
 require drugs; and in consequence think it their duty to save 
 the county all they can in food and supervision for such per- 
 sons, by giving them as little of either as possible. 
 
 Justice demands that no lunatic, because a pauper, should 
 be thrust among that class in a promiscuous way. It is very 
 doubtful whether any such should be permitted to remain in 
 a poor-house which has not a special and distinct department 
 for the insane. Our statute prohibits the retention of acute 
 cases of insanity in such places. But it does not wholly reach 
 the root of the evil yet. The law is often violated where a 
 great distance is to be traveled to reach a State asylum, and a 
 corresponding expense is to be incurred for transportation by 
 the county. Political economy being wonderfully sharpened 
 on the eve of an election, and insane paupers not being con- 
 sidered of much account anywhere, it often follows that they 
 have to wait the good pleasure and convenience of those who 
 have them in charge, and may thus be detained in poor-houses 
 until their chance of recovery is past, because, forsooth, not 
 being noisy or dangerous, their cases are deemed mild and 
 tractable. 
 
 IDIOTS. 
 
 We have no State provision for adult idiots. It does 
 not appear whose special wards they are. Hence they drift, 
 like a ship without a compas, hither and yon, finding a harbor 
 at length in poor-houses. These persons are not a wholly use- 
 less class. They are and can be made more productive than the 
 chronic insane. I have recommended the organization of an 
 industrial asylum for them, and the subject may possibly re- 
 ceive legislative attention this winter. Needing guardianship 
 full as much as the insane they should be catalogued legally, 
 and placed where their civil rights can be accorded them to 
 the fullest extent of their capacity to enjoy them. Such per- 
 sons can, in many cases, be made self-supporting in an insti- 
 tution, while they could not endure the hard grapple of life 
 in the outer world, and are ever destined to be crushed be- 
 neath the wheels of rival competitors. 
 
 IMBECILES. 
 
 What is said of idiots applies with equal force to imbeciles. 
 The subject is, however, a much more difficult one to deal 
 
FEEBLE MINDED. 55 
 
 with, because weakness of mind is a term of relative signifi- 
 cance, and so long as a party can hobble along mentally, it is 
 held to be an infraction of his personal rights to suggest 
 guardianship. We are supersensitive upon this subject, and 
 tend to become inconsistent with our own conduct in other 
 matters of cognate legal action. For instance, there is not a 
 millionaire in this city who does not keep himself voluntarily 
 under the guardianship of legal as well as financial counsel- 
 ors, without whose concurrence, if not permission, he would 
 hardly presume to act. And although it may be said that he 
 has the right to keep or discharge them at will and is in no 
 sense in their custody, yet when a man has for years been the 
 curator of another's secrets, including his mental dispositions, 
 and knows where that other is weak and where strong, sure- 
 ly he has possessed himself of more elements of power over 
 him than any legal guardian ordinarily secures. 
 
 But it is not only the millioniare who needs protection be- 
 cause of his incapacity to protect his treasure. There are a 
 large number of persons in every community whose minds, 
 either naturally weak or dissipated in their powers of concen- 
 tration and reflection by years of self-indulgent leisure, sim- 
 ply rotate upon the axis of monotony in an atmosphere of va- 
 cancy. This class of persons, without being technically in- 
 sane, are still without mental power sufficient to battle with 
 the ruder contingencies of life. If in the poorer classes and 
 they cannot earn their bread, they become paupers, vagrants, 
 or petty criminals, as the case may be. If in the upper class- 
 es, their wealth for a time shields their incompetency from 
 public exposure until some apocalyptic day comes around, 
 in which, attempting to make a contract, or having 
 made a will, or committed some act of social disgrace, their 
 mental condition is inquired into, when lo! it is discovered 
 that they have been all their lives mental paupers, just as 
 much so as those who have figured in poor-houses as public 
 waifs. Many of them, too, have been preyed upon by sharpers 
 of one kind and another, against whom even equity will not 
 intervene nor raise its protecting arm, because, forsooth, such 
 persons not being technically insane, their privilege to be 
 preyed upon must be considered as guaranteed under our 
 
56 THE ISANE AND 
 
 original bill of rights. In other words, there is no protection 
 under our law for adults in body who may have remained in- 
 fants in mind. If you cannot show them to be insane or in- 
 tensely extravagant in their personal expenditures, their er- 
 rors of judgment in selecting a dishonest agent or trustee can- 
 not be inquired into nor that agent made accountable. The 
 cestui que trust may have his rents consumed or wasted to any 
 degree by his trustee, and although too imbecile to under- 
 stand this or make complaint, our courts will hearken to no 
 petition from relatives and reversioners in his estate to have 
 his condition of mind judicially investigated. Thus a jury 
 having on an inquisition of lunacy, ten or more years previous- 
 ly, found an imbecile party of sane mind (whatever this may 
 have meant quoad hoc), and the rents of his estate in the hands 
 of a trustee not having been since adequately accounted for, 
 on a petition by relatives to have his mental competency in- 
 quired into nnd the trust vacated, two of our Supreme Court 
 justices have refused on the ground that this was a res adjudi- 
 cata which could not be disturbed. In other words, this is tn 
 be interpreted to mean that a man having once been found 
 sane by a jury.even if against evidence to the contrary,it shall 
 never again be lawful'in any length of years to inquire wheth- 
 er his state of mind may not have changed, although his acts 
 meanwhile may have sounded to folly in every particular. 
 Under the shadow of this principle if such a party should 
 commit homicide, he could never be allowed to plead insan- 
 it)-, because a jury having found him sane ten years before, 
 the question of his mental condition henceforth is res adjudi- 
 cata. Comment is unnecesary. (Nihil in lege intolerabilius est 
 i/uam eandem rem. diver so jure censer i. 4 Coke, 93.) 
 
 It was long ago felt in England that a great hindrance to 
 the force of equity jurisprudence in matters of lunacy lay not 
 in the want of jurisdiction on the part of courts in reference 
 to these matters, so much as in the absence of prescribed 
 forms having the sanction of legislative enactments. Lord 
 Erskine (in ex parte Cranmer, 12 Vesey, 445) held that a com- 
 mission of lunacy was applicable to incapacity from causes 
 distinct from lunacy, and in support of these views cited the 
 opinions of Lord Eldon, in 6 Vesey, 273. 
 
FEEBLE MINDED. 5? 
 
 I occasionally meet people in insane asylums whose insan- 
 ity is so little revealed that their presence there naturally ex- 
 cites wonder in a layman, and yet the foundations of their 
 mental constitution are so fragile, and even tottering, that the 
 least strain carries them over into the domain of self-evident 
 insanity. Before this fall of the temple of thought they pass 
 simply for weak-minded persons, who cannot be trusted in 
 any serious undertaking; who are safe when content to stay 
 in protected corners, and who live mentally upon a low plane 
 of passive reflection. They are receptive and self-centred, but 
 outside of this ill-balanced and capricious. In one of our 
 private asylums all the patients come voluntarily, find a pleas- 
 ant home, sympathy and medical protection, and are content 
 to remain. At home they would be in perpetual danger. 
 Here they are safe. What is the proper legal status of such 
 persons? My answer is that they have none. So long as par- 
 ents live who can support them, they acquiesce in their 
 guardianship. When these are wanting, it is an uncle or 
 brother, or any one who happens to stand in an agnatic rela- 
 tion to them. But suppose they have none such. Then they 
 stumble along, at the mercy of any one who induces them to 
 receive him as prochein-ami, agent, trustee, or in any similar 
 fiduciary relation. Courts are jealous to protect the rights of 
 infants, and an infant legally means a person under twenty- 
 one. After that their watchfulness slumbers, unless the per- 
 son be judicially declared a lunatic; but between infancy of 
 mind and lunacy there is a wide margin for weakness and in- 
 capacity to flourish in. A strong and educated mind at twen- 
 ty, though still that of an infant at law, is more capable of 
 self -protection than an adult weak mind at twice that age, to 
 which the law conceds majority and all civil rights. Yet the 
 one who does not need protection receives it, and the one who 
 really needs it does not receive it until insane, which is as 
 logical, precisely, as though the State, in chartering an hospi- 
 tal, should say that no relief should be given to any mild cases 
 of sickness, but only to those which are mortal. 
 
 There are various phases of nervous disease in which a 
 man loses self-confidence, hope, and consequently courage, 
 and in which condition he not only willingly submits, but is 
 
58 THE ISANE AND 
 
 is a relief to his mind to be led by others. Is such a man in- 
 sane? Certainly not. It may be that this present condition 
 will require months for its eradication. Meanwhile he has 
 large business interests at stake. What shall he do? Give a 
 power of attorney to an agent? That involves confidence 
 without collateral security in return. The better way would 
 be to have a legal guardian appointed who should give bonds, 
 receive a compensation, and leave the party's estate without 
 any risk. But under the sway of those ideas of personal in- 
 dependence which are the offshoots of our form of govern- 
 ment, we are educated to resist all imputations upon our men- 
 tal perfection, such as guardianship popularly implies, and 
 most people in consequence would prefer to be called vicious 
 than stupid. Hence they go stumbling on until threatened, if 
 not actual, shipwreck.invokes ihtheir behalf the tutelar protec- 
 of some court of equity, or, pushed into crime, a commission 
 de lunatico discloses the fact of their previous and long-estab- 
 lished mental weakness. We need to make the doctrine of 
 legal guardianship more popular and more common under 
 our laws than it has yet been made, and to show that it is 
 one of those wise provisions which comes as a necessity to all 
 nations in proportion to the increase of population and 
 wealth, and the formation of a class having leisure and means, 
 without adequate mental power to employ them safely. We 
 need to expand this humane doctrine so as to include within 
 its protection not alone infants and the insane, but also weak- 
 minded persons who are in no sense insane, although need- 
 ing supervision in the external affairs of life. We have 
 seen that in England it was long ago felt that commissions in 
 lunacy should be allowed to inquire into other forms of inca- 
 pacity than such as spring from insanity. Did this mean 
 drunkenness and squandering of property alone, or anything 
 indicative of a weakened mind? In order to carry out views 
 like those, which are as applicable here as in England, there is 
 a manifest necessity for recognizing by statutory distinctions 
 varieties in mental incompetency. I know that, at the outset, 
 this seems like a hair-splitting process, a sort of shifting prob- 
 lem in which the exact value of all the factors in this per- 
 sonal equation cannot be absolutely ascertained. But so it 
 
FEEBLE MINDED. 59 
 
 was with the first effort to classify crimes and to define de- 
 grees in homocide based upon the elements of malice and 
 premeditation. Yet it has been done, and we now acquiesce 
 in it, for use sanctifies everything. And the same can be 
 done with degrees of mental weakness involving incapacity to 
 manage one's own affairs. Nor is this a new doctrine born 
 from the metaphysical tendencies of our age; nor so elastic as 
 to open the door for aggressions upon the personal rights of 
 the citizen. The Roman law was certainly not pervaded by 
 pinciples of Christian equity; yet it made ample provision for 
 the weak and defenceless, for it made a fine distinction be- 
 tween incapacity arising from mental weakness {propter animi 
 levitatem) and that arising from disease. In the former case 
 it placed the placed te party under a tutor, in the latter under 
 a curator* 
 
 If there be such a thing as natural equity, which it thus ap- 
 pears that even a heathen jurisprudence recognized, it is dif- 
 ficult to understand how a Christian community can refuse to 
 incorporate it in its code of municipal obligations. The dread 
 circumscribing personal liberty of action over one's property 
 by forms of guardianship is as unreasonable now as the dread 
 of ecclesiastical usurpation in secular matters, during the 
 middle ages by the common law pleaders,'was excusable then. 
 But tempora mutantur, et nos mutamur in Mis. In commerce 
 there has grown up a hitherto unknown class of traffickers, 
 known as middle-men or brokers, through whom now the ma- 
 jor part of all large transactions are conducted. Few persons 
 trust their own skill enough either in selling or buying to dis- 
 pense with their services. Yet these persons are not necessar- 
 ily insane. But quoad some particular transaction, they cer- 
 tainly admit their incompetency. Add a few degrees to it, and 
 while still within the regions of sanity, it may be weakness 
 balancing on the edge of inbecility. Now which is best, 
 that a court of equity should be called upon, at much cost, to 
 release such persons from some unreasonable obligation into 
 which they have entered to their detriment, or that the same 
 
 * Tutores constitunutur tam masculis quam feminis; sed masculis quidem im- 
 puberitus duntaxat; feminis autem, tam impuberibus quam puberibus. Institutes 
 LiD. I, Tit, XII. de Tutelis. 
 
60 THE INSANE AND 
 
 court should render the necessity for such a remedy impossi- 
 ble by anticipatory guardianship? In physical life, the pre- 
 vention of disease is held to be superior to its cure. Why 
 should the same doctrine not hold good in civil relations? 
 
 INSANITY IN ITS RELATIONS TO CRIME. 
 
 Crime is one of those resultants of mental action in con- 
 duct which cannot always be explained under the light of 
 moral liberty or self-interest. For scientific, or even moral pur- 
 poses, the common test of motive is wholly valueless. Motive 
 is a purely subject factor in the transaction which third 
 parties cannot correctly appreciate. Even the party himself 
 cannot, at times, recognize its presence or explain the ration- 
 ale of its incentive power. Every man has his own moral vis 
 in-eri<zi,and what might be a motive power to thousands might 
 not be one to him. Properly speaking, there is no motive- 
 less act, and even an impulse is the fruitage of antecedent 
 and preparatory conditions. 
 
 Acquaintance with the mental habits of the insane teaches 
 us that they do not lose their evil propensities by becoming 
 mentally deranged, while more often new ones are super-add- 
 ed by the operations of the disease. Those who were liars, 
 hypocrites, profane or unchaste, cruel or brutal before losing 
 their mental balance, still retain those habits, To judge 
 them under the light of criminal responsibility, we must take 
 all these points into consideration, since it is not impossible 
 for an insane man to intend to do wrong, as well as to execute 
 that intention.* The determining factor in this problem, 
 when judicially investigated with a view to determining legal 
 responsibility, is not what the party did, or how he did it, but 
 whether he could have refrained from so doing had he chos- 
 en. The fact that he did not apparently make the effort is no 
 more evidence than he could not hav£ made it than it is that 
 he intentionally refrained from making it. Viewed singly, 
 this fact amounts to nothing, since the evidence necessary to 
 
 * But a person does not when he becomes insane, take leave of his human 
 passinos, nor cease to be affected by ordinary motives: and when he acts 
 from one of these motives: he does not, by doing so, take leave of his 
 insanity: if he kills some one out of revenge for an immagined injury, he is 
 still a madman taking his revenge. — (Maudsley, Responsibility in Mental Dis- 
 ease, p. 198.) 
 
FEEBLE MINDED. 6 1 
 
 substantiate it must always remain largely subjective. St.Paul 
 in his own case, explains this antinomy and paradox in men- 
 tal action, with the accustomed grace and lucidity of his in- 
 spired lips: "The good that I would, I do not, but the evil 
 which I would not, that I do. . . I see another law in my mem- 
 bers warring against the law of my mind, and bringing me 
 into captivity to the law of sin, which is in my members." 
 Hence moral responsibility is not wholly incompatible with 
 insanity, and even the greatest of European alienists, Dr. 
 Griesinger, doubts whether impulses ;ire irresistible in the 
 insane ; for, to quote his own words, "Few of the acts of 
 the insane have the character of forced, purely automatic 
 movements; in mania, also, according to the testimony of in- 
 dividuals who have recovered, many of the wild desires could 
 often be restrained; the criminal deeds of the insane are not, 
 generally instinctive." — {Mental Pathology, Sydenham Sac, Ed. 
 \ 47.) These views are fully corroborated by Dr. W. A. 
 Hammond, in his paper on Morbid Impulse, read before this 
 society in May, 1874, in which he says: "The morbid impulse 
 to injure others in property or person can be very often re- 
 strained by the effort of the individual who experiences the im- 
 pulse. Many instances of this kind have come under my ob- 
 servation, and they are frequently overcome by that whole- 
 some fear of the law and the influence of judicial discipline, 
 which even the insane, especially those whose only manifes- 
 tation of mental aberration consists in morbid impulses, are 
 generally capable of appreciating." 
 
 The foregoing opinions of experts show plainly enough 
 that moral responsibility is not necessarily extinguished by 
 insanity, and that an individual is bound to resist his evil 
 impulses as far as he can, in mental disorder as well as in 
 mental health. Still all this may co-exist with entire crim- 
 inal irresponsibility, although legal responsibility, meaning 
 accountability to the State, may continue; for the State may, 
 and constantly does, deprive an individual of his personal 
 liberty, as in the case of the ordinary insane, whenever there is 
 danger of his misusing it. And in the case of insane wrong- 
 doers, who have thus shown their evil propensities with or 
 without power of self-control, the State cannot punish them 
 
6 2 THE INSANE AND 
 
 by imposition of either the bodily or mental penalties inci- 
 dent to a penal institution, because they are permanently in 
 the same condition, mentally, that an ordinary prison convict 
 is, physically, when attacked by disease; that is to say, all 
 punishment must be suspended during this intervening stater 
 and the person treated, not as a criminal, but as an ordinary 
 sick man in a hospital. Hence incarceration in an asylum is 
 all that the State can legally do in the matter of disposing of 
 its insane malefactors; and, in fact, it is all that it is necessary 
 for it to do, both morally as well as medically, in order to pro- 
 tect itself and vindicate its authority. Bodily penalties — 
 meaning enforced labor, or a sentence of capital punishment 
 causing mental terror by anticipation of a violent death — are 
 things not to be entertained; for they would only further irri- 
 tate and derange an already unbalanced mind, and put the State 
 in the attitude of a vindictive avenger, instead of a guardian 
 of the weak and suffering, and a protector of all. From the 
 personal testimony of the insane in our own criminal asylum? 
 I can affirm that their detention is in itself a punishment of 
 which, in the majority of cases, they are keenly conscious, re- 
 cognizing it as something more penal than medical, and, more 
 painfully still, comparing its indefinite duration with the de- 
 terminate periods of the convict for a term of years. Hope 
 is the anchor of the soul in all human beings alike, whether 
 sane or insane, and there is no more painful spectacle in this 
 world than that of those whose minds, shaking off the eclipse 
 of insanity, awake to find themselves in the midst of insane 
 criminals, with no definite day of release. Let those who 
 think the insane malefactor is not sufficiently punished by 
 being detained in a criminal asylum, visit such an institution, 
 and converse with some of the old and more rational inmates, 
 and they will be sastified that the dread of the plea of insanity 
 as a door of escape for criminals from punishment is a popu- 
 lar myth, born of ignorance. There is no class of persons who 
 pay such a heavy penalty to disease as the insane, and if, as 
 the old maxim runs, furiosus solo furore punitur, it is surely the 
 duty of society not to add a feather's weight of pain to these 
 poor, cross-bearing sufferers. 
 
 The difficulty of dealing with a problem of this kind arises 
 
FEEBLE MINDED. 63 
 
 in proportion as we undertake to apply to its solution the 
 technical rules of law, for these rules were intended to gov- 
 ern the actions of sane men alone; and when we discover an 
 element of insanity in any action that is undergoing judicial 
 investigation, then not the common law, but the equity juris- 
 diction of the court must be applied to such a case precisely 
 as it would be to any similar occasion of hardship or misfor- 
 tune in a civil transaction. This is the first point to be con- 
 sidered in dealing with a question of insanity. Next comes 
 that of methods of ascertaining the fact judicially. 
 
 I am not of those who believe that insanity is a physical or 
 mental condition, or combination of both, which, in the ma- 
 jority of instances, a body of intelligent laymen, at short 
 notice and upon a limited observation of a person, can deter- 
 mine as. well as two or three experts. One might with as 
 much accuracy believe that a canal boatman, because a navi- 
 gator, could give a correct opinion upon a difficult question 
 touching the navigation of an Atlantic steamer, or that a 
 drug-broker or apothecary's clerk could skillfully administer 
 drugs, because,, forsooth, he deals in them. Insanity is no 
 such patent condition as that view of it would seem to au- 
 thorize. 
 
 Insanity is a fact which, like many others in nature, is so 
 only to those who can appreciate the interdependent and 
 shifting relations of its many constituents. All facts are alike 
 unknown and unknowable to the ignorant, until they have 
 first mastered the rudiments out of which such facts are com- 
 pounded. ''No man," says the philosophic Emerson in his 
 own trenchant way, " can learn what he has not preparation 
 for learning, however near to his eyes is the object. A chem- 
 ist may tell his most precious secrets to a carpenter, and he 
 shall never be the wiser — the secrets he would not utter to a 
 chemist for an estate." This is a univeisal law, and it is idle, 
 therefore, to talk about actinism, or bleaching to a man who, 
 although he has seen daylight all his life, has never known 
 the composition of that light. Put that man upon a jury in a 
 case where a question of photography, or the deterioration of 
 drugs by exposure to sunlight, is the issue, and what can he 
 know of these facts, although each is a fact relating to com- 
 mon daylight only ? 
 
64 THE INSANE AND 
 
 For, after all, a fact has no quality, no name and no value 
 distinct from the mind which observes it; and to him who does 
 not appreciate it, it does not exist. To the blind man this is 
 a sunless world, to the deaf man one of silence unbroken— 
 yet both may be intelligent men, and competent to sit upon a 
 jury in any of our courts. But would you take their opinions 
 upon a question of color — say the genuine or spurious char- 
 acter of a costly painting— or upon a question of sound — say 
 the uttering of a threat or a slander ? Yet these are but facts, 
 and according to our legal traditions any intelligent jury can 
 determine the legal value of fa' ts. Why, then, call experts 
 at all ? Or, if granting that there will be cases where such 
 professional experience is needed to enlighten the jury, why 
 allow that same jury to decide by ballot the real value of that 
 professional judgment? If they are competent to do so, they 
 do not need experts, for they are experts themselves ; if they 
 are not competent to do so, then they have as little right to 
 pass upon such a question as one of law, for it requires 
 special knowledge in either instance, and no one pretends that 
 they have any. 
 
 The history of both our criminal as well as our lunacy juris- 
 prudence points constantly to one glaring fact, viz., that the 
 most erroneous verdicts — verdicts against facts, common- 
 sense and evidence — have been rendered by juries in civil 
 and criminal issues of insanity. Adverting to this subject,' 
 the Superintendent of the State Lunatic Asylum at Utica, in 
 his annual report to the Legislature for 1872, uses the follow- 
 ing words . 
 
 "Of those discharged, fourteen were not insane when ad- 
 mitted. Three of these were cases of feigned insanity to 
 escape punishment for crime, and the rest were drunkards, 
 whose vagaries and violence were mistaken for insanity. All 
 these were committed under public authority, and oh certifi- 
 cates of insanity on trial by jury." I need only mention the 
 cases of Sickles, Cole, MacFarland, Pierce and Montgomery 
 to illustrate this point. And I could name others who have 
 never been tried, but who, if they had, would have been con- 
 victed, as this latter was, although manifestly insane. To err 
 is not only human, but judicial also, as the 3,000 cases in Mr. 
 
FKEBLE MINDED. 65 
 
 Bigelow's volume of over-ruled cases, and the 50 volumes of 
 our Court of Appeals' decisions show. But when a system of 
 procedure shows itself as notoriously certain to err as the 
 trial by jury in issues of insanity, it would seem to be time 
 that men asked themselves whether something better cannot 
 be devised. 
 
 The trial by jury is not founded on any principle of law. It 
 is simply a method of procedure resting upon a gratuitous 
 assumption that in criminal and other issues twelve men of 
 the vicinage will administer justice more impartially than one 
 or several disinterested judges. The fallacy of this doctrine 
 is seen every day in the necessity either of changing the 
 venue, which is a practical imputation upon the impartiality 
 of the whole county in which an issue is to be tried, or in sift- 
 ing its whole male population by challenges of all possible 
 kinds, until twelve men are found who do not read newspa- 
 pers, who are not in the current of living society, whose judg- 
 ments are never spontaneously awake, and who, while in the 
 world, are not of it. 
 
 By reverting to history we shall find that the trial by jury 
 was born as a civil safeguard in times of political tyranny. 
 It is of service, therefore, against encroachments upon per- 
 sonal liberty and where issues involving matters of common 
 knowledge are raised. But there is a limit to its utility, and 
 that limit will be narrowed in proportion as the character of 
 intelligence of such a tribunal continues to fall. 
 
 In civil practice there has long been a growing disposition 
 to dispense with trials by jury, and the constitution of 1846 
 recognized this advancement in the philosophy of procedure 
 by allowing a party to waive this constitutional privilege in 
 certain cases. And the same thing is destined to take place 
 at no distant day in criminal trials, for even while I write I 
 learn that a case of murder has just been tried in Connecticut 
 without a jury. Can any one doubt that the three upright 
 judges who presided there administered justice in every sense 
 as impartially as twelve unlearned laymen, swayed by senti- 
 ment and the glamor of forensic oratory would have done ? 
 Hence, in an issue of insanity, involving the necessity of the 
 most intricate knowledge of the human body as well as the 
 
66 THE INSANE AND 
 
 mind, in order to decide it, will it be said that the utterly 
 ignorant are as competent judges as the skilfully learned ? If 
 so, then why not allow juries to decide questions of law as 
 well as fact ? Law is only a system of human facts balanced 
 in their relations to individuals by principles of natural jus- 
 tice, applied under social necessities. If a juror, virtute officii, 
 becomes omniscient, a question of law must be as easy of solu- 
 tion to him as one of fact, and a charge from a court becomes 
 wholly unnecessary. Must rules of law then, (for this not a 
 principle), never keep pace with the progress of other sciences? 
 Shall the justices in eyre continue to go around their circuits 
 in ox-carts, more majorum, when they can go by railroad ? 
 Shall deer in parks owned by rich men continue non-distrain- 
 able because so at common law, when a poor man's sheep and 
 swine may be taken upon execution ? If we can show that 
 the tendency even of any rule is towards error, should not 
 that be sufficient reason for endeavoiing to rectify it? Shall 
 we say that in all legal inquiries involving as their conse- 
 quence restrictions upon personal liberty, a jury should be 
 the ultimate arbiter ? If so, then nine- tenths of all our insane 
 are illegally committed to asylums because not sent there by 
 the verdict of a jury. No one deems a jury trial in dispensable 
 in a case of civil lunacy. Why should there be any difference, 
 then, in one of criminal lunacy ? In either case the State 
 controls the custody of the individual, and if the State can 
 permit a party to be deprived of his liberty in the first-men- 
 tioned case without a jury trial, why can it not in the second? 
 Insanity is not a crime. No insane man, malefactor or not, 
 owes the State any penalty. He is not, and cannot be, by her 
 own solemn guarantee, a criminal. Then why insist upon 
 trying him precisely as if he were ? 
 
 RECENT LUNACY LEGISLATION IN NEW YORK. 
 
 The status of lunatics before the common law was not only 
 peculiar, but utterly at variance with all conceptions of nat- 
 ural justice. Besides being disfranchised, they might be made 
 the subjects of fraud or duress, and yet were not allowed to 
 plead their mental condition in nullification of acts commit- 
 ted by them while non compos mentis. In the reign of Edward 
 III., as Blackstone informs us, " a scruple began to arise 
 
FEEBLE MINDED. 67 
 
 whether a man should be permitted to blemish himself by 
 pleading his own insanity ; and afterward, a defendant in 
 assize having pleaded a release by the plaintiff since the last 
 continuance, to which the plaintiff replied {ore tenus, as the 
 manner then was) that he was out of his mind when he gave 
 it, the Court adjourned the assize, doubting whether, as the 
 plaintiff was sane both then and at the commencement of the 
 suit, he should be permitted to plead an intermediate depriva- 
 tion of reason ; and the question was asked how he came to 
 remember the release, if out of his senses when he gave it. 
 Under Henry VI. this way of reasoning (that a man shall not 
 be allowed to disable himself by pleading his own incapacity 
 because he can not know what he did under such a situation) 
 was seriously adopted by the judges in argument (39 Henry 
 VI., 42) upon a question whether the heir was barred of his 
 right of entry by the feoffment of his insane ancestor. And 
 from these loose authorities, which Fitzherbert does not 
 scruple to reject as being contrary to reason, the maxim that 
 a man shall not stultify himself, hath been handed down as 
 settled law, though later opinions, feeling the inconvenience 
 of the rule, have, in many points, endeavored to restrain it." 
 (Comment'ts Book, 2d p., 291 ; Comber'h, 469 ; 3 Mod , 310.) 
 I have purposely quoted the above in full, in order to show 
 how a principle of gross injustice could, after serious medita- 
 tion, by a bench of judges, become the settled law of an en- 
 lightened country, and remain so for over two hundred years, 
 in the face of the remonstrances of such an authority as Fitz- 
 herbert, as well as the daily evidence of its wrongfulness. To 
 attempt to enforce such a principle at this day would be con- 
 sidered simply brutal, and yet it was none the less so then, be- 
 cause the question at issue was not one involving nice degrees 
 of scientific differentiation in detecting mental maladies, but 
 the general proposition of whether an insane man, fraudu- 
 lently enticed into any contract detrimental to his interests, 
 because having, in fact, no legally assenting mind, should be 
 permitted to show that fact as a reason for nullifying such a 
 contract. Had the party been 2. feme covert, or an infant, how- 
 ever near twenty-one years old, and however intelligent in 
 mind, the judges would not have hesitated in admitting the 
 
68 THE INSANE AND 
 
 appropriate plea in either case. But as for a lunatic, he was 
 evidently an outlaw whom any one might defraud, if not de- 
 stroy. Alluding to this subject, Chancellor Kent very em- 
 phatically says, that " the principle advanced by Littleton & 
 Coke, that a man shall not be heard to stultify himself, has 
 been properly exploded, as being manifestly absurd and 
 against natural justice " (Comment 'is, vol. 2, p S94-) 
 
 Now, if a rule, " manifestly absurd and against natural jus- 
 tice," was the settled law of England for two hundredyears, is 
 it unreasonable to infer that otherr ules may be found which 
 are amenable to the same criticism ? And if found to be so, 
 shall we limit ourselves to the right of discovery alone, yet 
 make no change, because, forsooth, the error is settled law, 
 and by lapse of time has attained to a prescriptive right ? 
 Shall we go on wearing the Chinese shoes of conformity, and 
 the prison uniform of the ancient pleader whom Cicero so 
 well describes in his own day as " leguleius quidam cautus 
 et acutus, praeco actionum, cantor formularum, auceps sylla- 
 barum." (De Or at. 1:55.) 
 
 Or shall we not endeavor to make a change, both in melius 
 as well as in aliud, by re-casting the rule in the mould of mod- 
 ern law, and shaping it in obedience to a more logical confor- 
 mity with the principles of reason and natural justice ? Surely 
 this would seem to be the proper duty of those who believe that 
 progress in adaptation is an element of strength in law which 
 in no wise derogates from its stability, since its proper mis- 
 sion is to enlarge rather than restrict the sphere of our civil 
 rights and remedies. 
 
 " It is one of the noblest properties of the common law," 
 said Chief Justice Gibson, " that, instead of moulding the 
 habits, the manners and the transactions of mankind to in- 
 flexible rules, it adapts itself to the business and the circum- 
 stances of the times, and keeps pace with the improvement of 
 the age." (Lyle v. Richards, 9 S. and R., 351.) 
 
 Having always acted under these convictions, I was par- 
 ticularly struck with the need of applying them in practice, 
 when, upon assuming the newly-created office of State Com- 
 missioner in Lunacy, I found the whole system of our Lunacy 
 statutes a mass of confused enactments, to which, in the past 
 
FEEBLE MINDED. 69 
 
 eighty years of our civil existence as a State, no one had ap 
 parently given any attention. Here was a dismembered and 
 disparted body of laws scattered through different titles of our 
 statutes, with every principle of unification ignored. They 
 had been allowed to rest wherever they had fallen in the 
 midst of annual enactments, so that in several cases almost 
 identical provisions had been re-enacted in evident oversight 
 of their previous existence. Impressed with the necessity of 
 giving form at least to such a dispersed body of laws, I ven- 
 tured to suggest to the Legislature last year the need of their 
 revision. That suggestion was adopted, and the duly of car- 
 rying it into effect assigned to the Attorney General and State 
 Commissioner in Lunacy. Accordingly, a report * was pre- 
 sented by us upon this subject, which was passed among the 
 general laws of the year, and designated as Chapter 446 of 
 the Laws of 1874. Besides many verbal amendments intended 
 to harmonize the legal effect of enactments passed at different 
 times, several new and important provisions were introduced 
 relatingto the following topics, viz : The commitment of the 
 insane of civil process; the commitment of the insane by 
 criminal process, and their discharge ; the transfer of insane 
 criminals from penitentiaries to the State Asylum at Auburn; 
 pleas of insanity by persons under indictment for specific 
 offenses ; limits of inquiry upon commissions of lunacy ; ac- 
 counts of guardians and committal of lunatics ; changes in 
 the organic acts of certain asylums with reference to uniform- 
 ity in the powers of their managers; the authentication of 
 official records from the office or the State Commissioner in 
 Lunacy, and providing for uniform returns of statistics annu- 
 ally from the Superintendents of poor-houses and county 
 asylums containing insane paupers 
 
 The first of these wrought a radical change in the method 
 of committing lunatics under civil process, and secured, it is 
 believed, the best legal safeguards which can be obtained for 
 all classes of citizens against the possibility of illegal commit- 
 
 * Vid. "Report on the Codification of the T.aws relating to the Insane, with 
 proposed Amendments thereto, &c, by Daniel Pratt, Attorney General, and 
 John Ordionaux, State Commissioner in Lunacy. "Presented to the Legislature 
 March 31, 1874." 
 
70 THE INSANE AND 
 
 ment to an insane asylum. The public mind has been greatly- 
 exercised by apprehensions in this particular, which were, in 
 the existing loose state of our procedure, well calculated to 
 be magnified out of all reasonable proportions. Several cases 
 had occurred where habitual drunkards had been committed 
 to asylums upon erroneous certificates of lunacy, who had 
 afterward been summarily discharged by habeas corpus; and 
 the public, not being able to discriminate between the post 
 hoc and the propter hoc, had naturally enough concluded that 
 there might be an element of fraud and collusion in such in- 
 stances, when, in fact, these cases were simply errors in judge- 
 ment, likely to occur occasionally under the best of adminis- 
 trations. We have seen, in the reports of the State Lunatic 
 Asylum at Utica, elsewhere quoted, that fourteen such cases 
 happened there in one year. But not finding their way into 
 courts, nor being served up in the form of a journalistic salad, 
 they attracted no notice, and did not disturb the rhythm of 
 the public pulse. In order, however, to silence all future ap- 
 prehensions upon this subject the first provision of the new 
 law was accordingly drawn up with reference to two impor- 
 tant considerations, viz. : that of celerity in action (a violent 
 and dangerous lunatic requiring immediate restraint), and 
 that of a subsequent legal adjudication of the propriety of 
 such confinement. The five days' detention allowed as a 
 measure of physical safety to the lunatic and a safeguard to 
 the public, is in the nature of a preliminary proceeding or in- 
 quisition into a statement of facts not yet legally established, 
 and the commitment is complete as to the right to detain, but 
 inchoate as to the right to retain. This is analagous in pro- 
 cedure to the arrest of a disorderly person in the streets, who 
 may be detained a certain length of time, but if no one ap- 
 pears to prefer charges against him, must be discharged. 
 
 The approval, by a judge of a court of record, as required 
 by the statute, is the final step necessary to give a perfect 
 legality to the original commitment, provided that approval 
 occurs within five days after the admission of the patient into 
 an asylum. In order to save himself harmless, the Superin- 
 tendent must see to it, therefore, that no insane person, 
 though brought upon proper medical certificates, is retained 
 
FEEBLE MINDED. 7 I 
 
 beyond five days, without a judge's approval to such certifi- 
 cates. He can exercise no discretion in the premises, since 
 the statute allows of no exception to this provision. The 
 statute further establishes some standard of qualifications for 
 medical examiners in lunacy. However imperfect this may 
 be, it is still better than none, and will tend to exclude a large 
 number of incompetent and irresponsible persons from the 
 right of giving medical certificates of lunacy, as was formerly 
 too often the case. 
 
 PLEAS OF INSANITY BY PERSONS UNDER INDICTMENT. 
 
 Of the other new provisions above enumerated it is not at 
 present necessary to speak, with the exception only of that 
 which relates to pleas of insanity by persons under indictment 
 for felonies. Some doubt having been cast upon its constitu- 
 tionality by the learned President of this Society, in a paper 
 read by him before the Neurological Society at its meeting 
 in January, I desire to thank him for the opportunity which 
 he thus affords me of stating the moving considerations 
 which led me to introduce it into our new Lunacy statutes. 
 This new provision was not drawn hastily. It was submitted 
 to the criticism and received the approval of one of the 
 Judges of the Court of Appeals ; was fully discussed before 
 the Judiciary Committee of the Senate, and approved both 
 by it and that of the Assembly without amendment ; and I 
 have, since it went into operation, received judicial testimo- 
 nials of its efficiency, as a safe and inexpensive method of de- 
 termining an issue of insanity, which otherwise, and if inter- 
 mingled with the ordinary trial of an individual, might require 
 many days for its determination, or upon a disagreement of 
 the jury need to be repeated. 
 
 Availing myself accordingly of the opportunity of this oc- 
 casion, I shall now endeavor to show how, under technical 
 rules of pleading, great injustice was heretofore done a 
 defendant desiring to interpose the plea of insanity as an an- 
 swer to an indictment, while at the same time, and at a later 
 stage of the trial, a departure in pleading had to be permitted 
 in order to purge away the wrong thus committed. In doing 
 this, I shall crave your indulgence, if it becomes necessary, 
 to begin with certain fundamental propositions in the law of 
 
72 THE INSANE AND 
 
 pleading known to you all, but which must be stated here as 
 my postulates. 
 
 A plea being an answer to certain allegations, must rest 
 upon presumptions which are rebuttable, otherwise no issue 
 can be joined. For in every issue there must be an affirma- 
 tive and a negative, but a presumption is not an affirmative ; 
 it is only an inference. (Priddle and Napper's Case, Xlth Coke, 
 fol. 8.) 
 
 It is a presumption that all persons are innocent until 
 proved guilty, but if this presumption be not rebuttable, then 
 by what right can we put any party upon trial ? If the pre- 
 sumption be conclusive, de facto, it becomes de jure a bar to 
 any conviction. But the possibility of its rebuttal being al- 
 ways conceded as an inference drawn from experience, proof 
 is admitted to negative such a presumption, and issue is 
 joined not upon the presumption, but upon the facts which 
 the proof elicits. 
 
 Again, it is a presumption that all persons are sane until 
 the contrary is proved. But if this presumption be not re- 
 buttable, how can the contrary ever be proved ? Hence no 
 proper issue can be joined upon a question of insanity, since 
 both affirmative and negative rest upon a matter of inference 
 not yet judicially established to be a fact. In such cases we 
 have to invent a fiction before we can suspend the operation 
 of the foregoing presumptions and try an issue either of 
 guilt or of insanity. On this point of resorting to fictions, 
 in order to determine the true from the apparent place, 
 which a rule of law actually operative should occupy, Mr. 
 Maine says, very truly, that " there can be no doubt of the 
 general truth that it is unworthy of us to effect an admittedly 
 beneficial object by so rude a device as a legal fiction. I 
 cannot admit any anomaly to be innocent which makes the 
 law either more difficult to understand or harder to arrange 
 in harmonious order. If the English law is ever to assume 
 an orderly distribution it will be necessary to prune away 
 the legal fictions which, in spite of some recent legislative 
 improvements, are still abundant in it." (Ancient Law, 
 chap. 2.) 
 
 Under every system of jurisprudence it has been a recog- 
 
FEEBLE MINDED. 73 
 
 nized principle, founded in natural ethics, that an insane 
 person can not commit a crime, and as a corollary to this, 
 that a person while insane cannot even be tried for any 
 offense, although committed previous to his insanity. Our 
 own statutes reaffirm these principles in the following 
 words, viz. : 
 
 "No act done by a person in a state of insanity can be 
 punished as an offense ; and no insane person can be tried, 
 sentenced to any punishment, or punished for any crime or 
 offense while he continues in that state." {R. S. Part $th, ch. 
 1, Tit. pk, §2.) 
 
 Under the shadow of all the foregoing principles it does not 
 appear how, previous to the passage of the act of 1874, a per- 
 son under indictment for an alleged crime could legally, and 
 in strict obedience to the technical rules of pleading, offer 
 insanity as an answer to such indictment, because, 
 
 1st. By pleading the general issue he admits that he is 
 justly amenable to the criminal jurisdiction of the court. 
 
 2d. By pleading the general issue he excludes himself from 
 the category of those whom the statute above recited re- 
 moves from the sphere of legal responsibility, and puts him- 
 self like any ordinary defendant upon the country. 
 
 3d. By pleading such general traverse he tenders issue 
 upon it in manner and form as alleged against him, and 
 gives color to the presumption that* he is like other men, sane, 
 the very fact which he wishes to contradict, and he is, 
 therefore, ex vi termini, estopped from afterward offering 
 the special plea of insanity by way of abatement to the in- 
 dictment. 
 
 4th' By pleading the general issue he admits that if the 
 allegations in the indictment are proved he is legally guilty. 
 Such are the logical consequences of pleading the general 
 issue, as intended by the philosophy of a legal defense to an 
 indictment. Now, if we examine the rules of pleading which 
 have been built upon them we shall see the truth of the alle- 
 gation that no legal way of pleading insanity as an answer 
 'to an indictment exists at common law, and that in con- 
 sequence a statutory enactment was needed to cover this 
 deficiency in our criminal procedure. The reason of this 
 
74 , THE INSANE AND 
 
 assertion will more particularly appear when it is remem- 
 bered that 
 
 ist. It is a rule of pleading that the general issue cannot 
 be pleaded together with a special plea, since this would con- 
 stitute duplicity. 
 
 2d. It is a rule that a party having once pleaded generally 
 cannot afterward plead specially, because such a plea is not 
 divisible. (2 Swan, 626. 2 Yerger, 248. 7 Cox, C. C, 85. 
 Wharton, C. Z., 535. 8 Smede &f M., 587.) 
 
 It follows from these conclusions that, while the statute as- 
 sured to an insane person immunity from punishment for an 
 alleged crime, lie was practically debarred from presenting 
 this defense in a legal way, by rules of pleading which con- 
 tradicted themselves at different stages of his trial, since they 
 first compelled him to enter upon his defence as though 
 sane, and afterward permitted him to make a departure in 
 pleading, in order to show that he was not what his plea 
 of the general issue had first conceded him to be. If this 
 be not ambiguity in pleading, it would be difficult to say 
 what is. 
 
 I am not unaware, however, of what may be said in reply 
 to this, viz. : That if a party can show that he is insane at the 
 time of trial, we have a statute by which that question may 
 be decided in limine. This is undoubtedly true. But why 
 should a party be limited to this privilege only upon appearing 
 to be insane at the time of his trial, when the statute guarantees 
 him immunityfromall criminal responsibilityfor acts commit- 
 ted at any time previous to trial ? The fact that he appears in- 
 sane, then certainly proves that the insanity must have been 
 lurking in him for some time previously, and why should he 
 not be permitted to show how far back in time that insanity 
 extended ? Lord Cottenham in re Whittaker, said, " that the 
 law required and the jury were bound to ascertain the period at 
 which the lunacybegan." ( 4 My.& Cr., 441). Insanity is a dis- 
 ease— ^a disease not of rapid or sudden, but of slow production, 
 and its stages of incubation are so insidious that it is only by 
 examining a wide extent of time, and weighing many groups 
 of symptoms, that any rational judgment can be formed upon 
 a given case. Hence, taking the time which ordinarily elapses 
 
FEEBLE MINDED. 75 
 
 between the commission of a crime and the trial of a party 
 who is immediately arrested upon its occurrence, and if that 
 time does not exceed three months, it may with safety be af- 
 firmed that such a person, if he appears to be insane at the 
 time of his trial (and this insanity is not ihe immediate re- 
 sult of an accident like a brain fever, supervening upon a 
 wound of the head, or of mania a potu, arising just previous to 
 his trial), then it may be safely affirmed that the insanity had 
 previously existed, and actually included the time within 
 which his alleged crime was committed. A retrospective in- 
 quiry should always be made in such cases, for in England in 
 several instances inquisitions of lunacy have been quashed 
 because they did not carry the commencement of the lunacy 
 as far back as the evidence warranted. (Shelf ord, pp. 124-25; 
 cf Ca. Ci.) 
 
 If, therefore, as we have always been taught to believe, the 
 sole object of putting an indicted party upon trial is to deter- 
 mine whether on a certain day on which he is alleged to have 
 committed a crime he was in fact guilty or not, in manner 
 and form as set forth in the indictment, why should he not 
 at the outset be permitted to show that on that very day he 
 was -non compos mentis, and thus specially excluded by statu- 
 tory provision from the sphere of criminal responsibility ? If 
 he can show that, he can show that there was no ground on 
 which to rest an indictment ; and the labor of the prosecution 
 in proving their side is thus rendered nugatory, and therefore 
 superfluous. The party has a right to demand that his plea 
 in abatement shall be heard, for he cannot plead guilty, 
 which he is not; he cannot plead the general issue, for that 
 admits that he recognizes himself to be within the criminal 
 jurisdiction of the court. His only proper way is to plead in 
 abatement ; because if successful, then he cannot be com- 
 pelled to ansiver the indictment. (1 Archbold, Waterman' s 
 Ed. 359 ; Note to Pleas in Abatement, 2 Hale, P. C. 238 ; 10 East. 
 88 ; 8 Smedes &• Marsh, 587.) 
 
 Having thus shown the need of such a provision in plead- 
 ing insanity when that constitutes the sole answer to an in- 
 dictment, I now come to the consideration of the form in 
 which that provision is enacted, as also its legal consequen- 
 
76 THE INSANE AND 
 
 ces. Necessarily, it must be pleaded, if at all, upon arraign- 
 ment. At this point I find that our honored President takes 
 issue with me in the paper hereinbefore alluded to, in the 
 words following, viz. : 
 
 " Suppose the case of a person really insane, but not appa- 
 rently so — a case so obscure as not to be apparent at sight, or 
 without careful and intelligent examination, and such person 
 is charged with crime, and upon arraignment, with or with- 
 out counsel, makes no plea of insanity. If with counsel, 
 suppose them to be ignorant of the fact of the actual insan- 
 ity ; and of course if without counsel and really insane, he 
 cannot be considered to have waived or lost rights by neglect 
 to plead." 
 
 To the first of these propositions I reply, that by reason of 
 the ambiguity of the term " apparently," it cannot be admit- 
 ted as a postulate in the argument. We cannot speak of a 
 man as "really insane" who has never presented any appear- 
 ance of it in speech or conduct. It is mere conjecture, and 
 less even than a presumption. We do not know it as a con- 
 clusion from facts, for de non apparentibus et de -non existentibus 
 eadem est ratio, consequently we have no right to predicate it. 
 But not to chop logic, I will reply as nearly as I can to what 
 I conceive to be the purport of the inquiry — viz., that knowl- 
 edge and experience of insanity show that no man is ever 
 really insane without revealing it in some way to those who 
 are competent to interpret his acts and his condition.* He 
 may not appear so to a crowd in a court-room, or to a judge 
 who sees him at a distance and has no knowledge of the act 
 or acts he has commitied ; but no judge would permit a party 
 to be tried without counsel, and no counsel deserving that 
 name would undertake a case without informing himself of 
 
 * One of the most striking illustrations of this truth occurred during the cele- 
 brated Freeman trial at Auburn, when Mr. Seward, as counsel for the defense, 
 asked the late Dr. Brigham, Superintendent of the State Lunatic Asylum, 
 whether he could tell an insane person by his looks, to which he replied that he 
 could. He was then asked whether in the crowd in that Court-room he saw 
 any person who was insane ? Dr. Brigham cast his eyes over the large audience 
 and although a stranger in theplace, immediately pointed out a man as insane, 
 who proved to beaharmless lunatic long resident in the town. He was quietand 
 attentive to the proceedings, and there was nothing either in his dress or man- 
 ner to attract observation . 
 
FEEBLE MINDED. 77 
 
 all its particulars. And since the passage of this statute, no 
 judge would compel a party to plead the general issue when 
 informed by counsel that he had reason to believe the plea of 
 insanity might be interposed, and asked time to inquire into 
 the particulars of his client's case. I am assuming the strong- 
 est possible case that can be brought up ; as for instance, 
 where a party being called to plead and having no counsel, 
 one is assigned him in court. For precisely such a case has 
 happened, and through it I am convinced that we shall be 
 able to discover the great use of the provision now under 
 discussion. 
 
 At the last December term of the Court of General Sessions 
 in New York, an Irish woman, named Isabella Jenish, was 
 called to the bar to answer to an indictment for killing her 
 infant child, Carrie Jenish, by placing her upon a hot stove. 
 She had no counsel. Judge Sutherland, then presiding, as- 
 signed one of our most eminent criminal lawyers, Hon. Chas. 
 S. Spencer, to defend her. Mr. Spencer had never seen her 
 before, but from the facts alleged in the indictment, and a 
 short conversation with her and her husband, he learned 
 enough to convince him that she probably had a complete 
 defense in the plea of insanity. He accordingly offered it 
 under the statute, and a commission was appointed, of which 
 I was a member. After hearing much testimony, and making 
 a careful personal examination of the defendant, we found 
 that she had been an epileptic for nine years previous to the 
 homicide; that she had had an epileptic convulsion less than an 
 hour before placing her child upon the stove, and that she 
 continued within that same epileptic circle for over thirty-six 
 hours. Was this not insanity enough to work irresponsibility? 
 She was accordingly sent to our State Lunatic Asylum at 
 Utica. The case of Kate Stodda'rd, in Kings County, is 
 another instance of the utility of this provision. She would 
 not have appeared insane to the crowd, doubtless, and has 
 talked over her defense with me in a way to show that she 
 understood fully the weight of evidence necessary to convict 
 her. Yet, since her admission into the criminal asylum at 
 Auburn, she has steadily developed her insanity, and has re- 
 cently become maniacal. Still another case, that of Matteson 
 
7 8 THE INSANE AND 
 
 occurring in Oneida County, in June last, has resulted in the 
 finding of insanity and the sending of the defendant to the 
 State Lunatic Asylum. Now, suppose all these cases had been 
 tried before a jury, what better result would you have secured ? 
 Perhaps they would have convicted Mrs. Jenish, precisely as 
 a jury erroneously convicted Montgomery, in Monroe County, 
 and a commission was afterward sent by Governor Hoffman, 
 of which I was a member, to pass upon his mental sanity, and 
 upon our report the Governor sent him to the Auburn asy- 
 lum. This man's trial cost several thousands of dollars, and did 
 not, after all, dispose of his case, while the commission Only 
 cost a few hundreds. The same thing would have happened 
 with Isabella Jenish and Kate Stoddard had they been con- 
 victed. Suppose, on the other hand, the jury should have 
 acquitted all the above-named persons on the ground of in- 
 sanity ? What then ? Why, they would all have been sent to 
 the place where they now are, the criminal asylum at 
 Auburn. 
 
 The luxury of trying an insane man by jury is rather a 
 costly, as well as an unnecessary way of showing our regard 
 for Magna Charta, precisely as burning up half a city on the 
 Fourth of July is rather a costly way of reminding American 
 citizens that their forefathers burnt gunpowder in order to 
 secure their political independence. The cases to which this 
 statutory provision was intended to apply are well represented 
 in those already cited, being cases of such palpable and un- 
 mistakable insanity that no advantage could accrue either to 
 the defendant or the people by a jury trial, or appealing from 
 the decision of a commission, when the end in either case 
 would be similar, so far as dooming the insane man to com- 
 mitment in an asylum. 
 
 The further construction of the proposition of our distin- 
 guished President, that a man's insanity may not be discov- 
 ered until it is too late to plead it, is not, in my opinion, a 
 correct one. For his counsel can always have an opportunity 
 to inquire into its likelihood whenever any seeming reasons 
 exist for so doing. If he neglects to do his duty the statute 
 is not to blame. Let him ask for time, and if the Court de- 
 clines to grant it, then let the responsibility fall upon the 
 
FEEBLE MINDED. 79 
 
 Court. If his client is afterward convicted he can move 
 either for a new trial, on the ground of newly discovered evi- 
 dence, and have his client's sanity tested, or if he be under 
 sentence of death he may apply to the Governor for a similar 
 process of inquisition, as was done in three cases with which 
 I was personally connected — viz. : the Buckhout case, in West- 
 chester County, in 1871; the Montgomery case, in Monroe 
 County, in 1872; and the Waltz case, in Greene County in 
 1874. 
 
 It is to be presumed, however, that a lawyer will always 
 endeavor to ascertain what is the best form of defense which 
 his client can offer in answer to an indictment before going 
 to trial. No one is ever denied a reasonable time in which 
 to prepare himself, and if he does not improve it he is guilty 
 of negligence. But even then the defendant is not remedi- 
 less, since he may demand a new trial for the leasons above 
 recited. 
 
 But the statute only requires and limits this plea to the 
 time of arraignment when the case is one of such palpable 
 insanity as to constitute the sole defense. If the party can 
 show anything else which might of itself constitute a defense, 
 he may at any stage of the trial combine with it and prove the 
 existence of a mental state calculated to lower his power of 
 reasoning and self control at the date of the offense charged, 
 and thus negative malice, premeditation or intention. And 
 if the jury choose to interpret this as implying insanity, they 
 are at liberty to do so. But in that event, they must find a 
 special verdict so stating it, whereupon the party is commit- 
 ted to an asylum for observation and treatment, his previous 
 acts showing him to be a dangerous lunatic, not safe to be at 
 large. The final disposition of the party is the same in either 
 event. But in the first a commission is appointed, and the county 
 spared the cost of one or more trials. In the second the trial 
 goes on in the usual way, save that no commission can be ap- 
 appointed, because no special plea of insanity can then be in- 
 terposed. The statute thus gives an alternative course of 
 defense to the party indicted, in which it is also made, for 
 economy's sake, the interest of the prosecution to join ; be- 
 cause, whatever may be the issue of the trial, the defendant 
 must eventually remain in the custody of the State. 
 
So THE INSANE AND 
 
 Having thus, as I conceive, made answer to the objections 
 advanced in our President's paper, I now resume my exposi- 
 sition of the intent of the new provision under discussion. 
 After hearing the plea of insanity tendered, the presiding 
 judge may or not, as he sees fit, receive it. If he does, his 
 duty then is to appoint a commission to try as a preliminary 
 inquiry this question, in order to determine whether the party 
 truly belongs to that class of persons whom the statute has 
 designated as dispunishable. Necessarily the statute fails of 
 its purpose if it does not allow the party indicted the oppor- 
 tunity of using the immunity which it provides for his class. 
 Besides which, lie may claim that privilege as a right under 
 the following provision of our revised statutes : "And every 
 person indicted shall be admitted to make any lawful proof 
 by competent witnesses on oath, or by other lawful testimony.'' 
 (£. S. Part 4, Ch. 2, Tit. 5, § 15, [13]). 
 
 The omission to join a jury to the commission by express 
 mandatory words will, it is believed, be found to work no 
 detriment either to the people or the defendant. Cases may 
 arise where circumstances might make it expedient to call 
 one ; and, if so, there is nothing to prevent the commission- 
 ers from doing it. But ordinarily, it will not be necessary; 
 and to have made it obligatory upon them would have simply 
 opened a door for habitual, rather than occasional, error to 
 enter at. Besides which, the present form is in nearer har- 
 mony with our practice in other directions. Under the first 
 section of the Act of 1874, a party shown to be insane maybe 
 committed to an asylum upon the certificates of two qualified 
 medical examiners, duly approved by a Judge of a Court of 
 Record, with whom it is left optional to call a jury. Of the 
 commitments made during the past year, and amounting to 
 many hundreds, nine-tenths have been without any trial by 
 jury, judges seeing no necessity for it, and no one complain- 
 ing of being wronged thereby. Yet no one doubts the legal- 
 ity of such proceedings. Now, when a commission, duly ap- 
 pointed by a court, of competent jurisdiction, finds, upon 
 careful inquiry and examination, an indicted person insane 
 why should less weight be given to its judgment ? Does the 
 fact of a man being accused of crime make it any more diffi- 
 
FEEBLE MINDED. 8 1 
 
 cult to discover his insanity than if he was simply accused of 
 eccentricity— of believing in metempsychosis, or of consider- 
 ing himself the Creator? Why should a simple accusation, 
 which may prove to have been wholly erroneous, destroy a 
 man's privilege of being tried by a commission of experts 
 who are competent, and remand him to a jury of non-experts 
 who are wholly incompetent ? He is entitled to the benefit of 
 every doubt that can be raised in his behalf ; but if the only 
 doubt in his case is one which a jury cannot appreciate, then 
 virtually, as to this fact, he cannot be said to have a fair 
 trial. 
 
 If again, as has been shown, Courts do not regard the trial 
 by jury of a question of insanity as an indispensable prere- 
 quisite to the right of committing a person by civil process to 
 an asylum, why is it of any superior importance in a case of 
 alleged crime ? The object of any trial under an indictment 
 is to determine whether the party shall continue to remain in 
 the custody of the State to abide its judgment in the matter 
 of penalties to be inflicted upon him, if proved guilty. But 
 when a dangerously insane person, who cannot be legally out 
 of the custody of the State — who cannot be a criminal under 
 its laws, and yet, being indicted, claims that very custody 
 which criminals seek to escape from, why should he be com- 
 pelled to put himself upon trial for the purpose cf determin- 
 ing the very thing which cannot legally inhere in him — 
 viz., guilt ? 
 
 If the reason for any trial is shown not to exist, then it is 
 plain that the right of insisting upon a trial must fail also ; 
 and we have just seen that under long-established provisions 
 in the Revised Statutes, a party when indicted is authorized 
 to offer any lawful testimony in his own behalf. 
 
 Again, if it be said that this provision takes the right of a 
 trial by jury from the people, my reply is : 
 
 ist. That the right of trial by jury emanated from the peo- 
 ple as the sovereign power, but is not intended for their 
 protection collectively, or in their corporate capacity, because 
 it is not the sovereign power which needs this bulwark against 
 itself, but the weaker citizen, on whose personal liberty that 
 power may, as a State, encroach. Hence the Constitution of 
 
82 THE INSANE AND 
 
 the United States declares that 'in all criminal prosecutions 
 the accused (not the people, for they are not on trial) shall enjoy 
 the right to a speedy and public trial by an impartial jury," 
 etc. But even this is contingent upon a demand for a trial 
 by a jury on the part of the defendant. Suppose he demurs 
 to the jurisdiction of the Court at the outset (as in Wilson's 
 case, 3 I$latchf. 345), can the people insist upon putting him 
 upon trial by jury before that question is first disposed of ? 
 Or if he pleads guilty to the indictment, does he not waive a 
 jury trial ? I know it has been usual in trials for capital 
 offenses for Courts to refuse to receive pleas of guilty in the 
 first degree by absolute confession of all that the indictment 
 alleges, on the ground that the defendant may, through ignor- 
 ance or fear, have been seduced into admissions which, upon 
 trial, might not be susceptible of legal proof. If so, then the 
 interference of the Court is not in behalf of the people, who 
 may thus be deprived of their right of trial by jury, so much 
 as in behalf of a defendant, supposed to be weak-minded or 
 ignorant, and thus incapable of understanding that he has 
 possibly a good defense. Now, suppose the defendant can 
 show the very reason to exist which the statute says shall be 
 a bar to any criminal trial, why should he not be permitted to 
 show that reason by way of answer to the indictment upon 
 arraignment ? It is the best evidence which the nature of his 
 case admits of. The only valid reason why courts refuse to 
 receive pleas of guilty in the first degree, is that the State has 
 an interest in the life of every citizen, and will not permit 
 him to throw it away. But if in the case of a party pleading 
 insanity to an indictment, his life cannot be taken as a pen- 
 alty for his act, whether he be tried by a jury or a commis- 
 sion, then the object of insisting upon a jury trial fails to have 
 any pertinency. 
 
 2d. Where a party can show that he was insane when he 
 committed an alleged crime, the people have by solemn en- 
 actment decreed that they shall not demand his trial as an 
 offender, because they expressly aver that he shall in no sense 
 be considered such. When limits to a criminal jurisdiction 
 are thus trenchantly defined, is it right to compel a party to 
 go to trial who can possibly show that the people were estop- 
 
FEEBLE MINDED. 83 
 
 ped by statute from demanding one ? Is it necessary for the 
 people to undertake a trial in order to discover that they had 
 no fundamental right to demand one from a party who was out 
 of their criminal jurisdiction? If, therefore, they have specially 
 designated by statute a class of persons who, by reason of 
 their mental unsoundness, can plead to the jurisdiction, why 
 should they not be permitted, as in other cases, to have that 
 plea first disposed of before entering upon a trial which does 
 not apply to them ? The moment any man accused of crime 
 can show when his insanity began, that moment all subse- 
 quent proceedings, whether by indictment or trial, become 
 invalid or nullified. It is for the purpose of carrying out 
 these provisions of the Revised Statutes that the law of 1874 
 was framed. 
 
 When it is said, therefore, that the Legislature has the same 
 right to authorize the appointment of a commission to try a 
 plea of alibi or infancy* as one of insanity, the sovereign fact 
 is overlooked that an alibi is a question simply of disputed iden- 
 tity, to be settled by the testimony of ordinary witnesses, as is 
 also infancy, while insanity, under every form of civilized juris- 
 prudence, has always been recognized as a special legal status 
 to be exclusively established by skilled testimony. There can 
 be no analogy, then, in law between the pleas of alibi or in- 
 fancy or even feme-covert, all which are ordinary facts within 
 the purview of ordinary testimony. 
 
 3d. The act of 1874 does not alter in any particular the 
 character of an existing legal tribunal by erecting another 
 within its jurisdiction, but simply supplies an easier, more 
 economic and equally safe form of procedure for enabling 
 that tribunal to ascertain the limits of its jurisdiction over the 
 defendant.' Nor can there be any doubt of the right on the 
 part of the Legislature to make such alteration in procedure 
 as this. For, under the 8th section of Article VI th of the 
 Constitution of 1846, which still remains in force, it is or- 
 dained that "the Legislature shall have the same power to 
 alter and regulate the jurisdiction and proceedings in law and 
 
 *" Hints for Legislative Reform?' a paper read before the N. Y. Medico- 
 Legal Soc, Dec. 23, 1874, by John K. Dos Passos, Esq., published in March 
 No. 1875, of Psychological and Med. -Legal Journal, p. 141. 
 
84 THE INSANE AND 
 
 equity that they have heretofore exercised." Therefore it is 
 that the reference to the Cancemi case (18th N Y., 128), made 
 in the President's paper, does not, in my opinion, apply to the 
 point under discussion. There a defendant, who had put 
 himself upon the county, consented to be tried by a jury of 
 eleven; and the Court of Appeals held very properly that a 
 common law-jury consisted of twelve, and that no other num- 
 ber formed a legal jury. Having once put himself upon trial 
 by joining issue, neither party could at their mere pleasure 
 alter the form of a constitutional tribunal. But in the prese-nt 
 instance it is not a question of guilt that is being tried be- 
 tween the people and the defendant, but a questisn of juris- 
 diction founded upon a certain fact to be first ascertained, 
 that fact being the insanity of the accused. The question of 
 guilt, both logically as well as legally, must be subordinated 
 to that of sanity; for, after all, the former has no capacity of 
 existence outside of the latter, and a mere presumption of 
 sanity, like one of innocence, is always rebuttable, otherwise 
 as we have elsewhere shown, no man could be put upon trial. 
 It follows from these conclusions that the trial of an insane 
 man by a jury sworn to try only the question of his guilt, is 
 by the intent of the language of the provision in the Revised 
 Statutes, an illegal trial. His insanity is one thing and his 
 guilt another, and the two propositions are made irreconcila- 
 ble by the above-cited provision. I know very well that it 
 has been the habitual practice of our courts to let the defend- 
 ant prove his insanity, when it constituted his sole defense, at 
 any stage of his trial ; but if this practice is shown to be 
 erroneous in principle and costly in operation there would 
 seem to be no reason in mere custom for adhering to it. 
 
 The points to be remembered in this connection are . 
 
 First, That an insane person can not, in legal contempla- 
 tion, commit a crime. 
 
 Second, That an insane person can not be indicted. 
 
 Third, That an insane person cannot be tried. 
 
 Fourth, That the same principle which allows the people to 
 try a man presumed to be innocent, should allow a defendant 
 presumed to be sane to prove that he was not so when he com- 
 mitted an alleged crime, and that, too, without compelling 
 
FEEBLE MINDED. 8g 
 
 Shim to answer an indictment founded solely upon guilt. 
 
 Nor does the statute of 1874, by mandatory words, erect a 
 mew tribunal within another, because it leaves it optional with 
 the Court to appoint the commission, and optional with it also 
 to approve and confirm its finding The report of the com- 
 mission is not final, nor is it the report of the commission 
 which legally establishes the insanity of the prisoner. The 
 authority to do this remains exclusively in the Court, for the 
 statute explicitly says, that '"upon the report of said commis- 
 sion, if the Court before whom the indictment is pending shall 
 JindthaX such person was insane and irresponsibleatthe date of 
 the offense with which he stands charged, the Court aforesaid 
 shall order his removal to some State lunatic asylum, etc., 
 etc." It is plain, therefore, that if the Court find the party 
 insane it cannot do otherwise than send him to an asylum, 
 because it cannot find him both irresponsible at the date of 
 the offense and responsible at the date of his trial. The trial, 
 for its right to be, depends upon the existence of a previous 
 offense, as a sine qua non ; and if it be shown that there was 
 no party competent to commit an offense then the trial must 
 fall to the ground. Sublata causa tollitur effectus. Independently 
 even of the statute, the Court is not bound to resort to a trial 
 by a jury to ascertain that fact, any more than in the case of 
 any alleged lunatic whose lunacy is established to the satis- 
 faction of a Court of Record, under § 1, Art, 1, Tit 1. But it 
 is plain that it cannot find him to have been insane at the date 
 of the offense, and at the same time require him to answer 
 to and indictment which has no legal foundation to stand 
 upon the moment the fact of such insanity is established. He 
 was either sane and responsible or insane and irresponsible 
 when he committed the offense ; but he could not be both. 
 
 The next point to consider is, whether the commission, in 
 their report, if they find that insanity existed at tlie date 
 of the offense, should find that it still continues. I know it 
 has been the habit to expect, if not to require it, under the 
 provisions of the Acts of 1842, 1847, and 1869, but in reality 
 there is no necessity for it, and even if stated, it adds no 
 value to the scientific or legal accuracy of the report beyond 
 the day on which that report was made. For if the Court 
 
SO THE INSANE AND 
 
 should fail to send the defendant to an asylum on the day of 
 the date of the report, then under this reasoning it would be 
 necessary to make a fresh report of its continuance every day, 
 and thus to keep the commission in session until the defend- 
 ant had in fact been committed to one. 
 
 Now, it is a well-established principle that when a party 
 has once been found insane by inquisition, he is presumed to 
 continue so until such finding is legally vacated, and the bur- 
 then of proof is thence shifted to the party alleging sanity. It 
 would be a singular departure, indeed, from all recognized 
 rules of evidence, as well as from all experience in the physi- 
 cal law of insanity, when a party had been legally adjudged 
 insane within a reasonable time to permit a mere inference of 
 his recovery a few days after to weigh down a legal judgment. 
 Hence the defendant having been found insane at the date of 
 his offense, and the commission ascertaining this judicially 
 within a reasonable time afterward, such insanity must be 
 presumed to continue from that date onward, until disproved 
 by similar judicial finding. 
 
 Chancellor Kent, alluding to this persistence of insanity, 
 uses the following significant language : 
 
 "I have frequently been visited by lunatics against whom 
 an inquisition had been returned and a committee appointed. 
 Their object was always to complain of the proceedings or of 
 the committee, and I have rarely been able on such occasions 
 to detect the mental infirmity. Lord Eldon has observed that 
 he once, as counsel, succeeded in getting Lord Thurlow to 
 supersede a commission, and was satisfied, from many confer- 
 ences with the party, that he was perfectly rational. But 
 when he obtained the order of supersedeas, and the party came 
 to thank him for his services, he discovered the disorder in 
 five minutes, and regretted all he had done." 
 
 {In re Hanks, 3 Johns Ch. R., 567.) 
 
 CRIMINAL RESPONSIBILITY OF THE INSANE. 
 
 There has been an immense amount of needless discussion 
 in legal adjudications upon this subject, all revolving about 
 the one pivot of punishment. But for the traditional diffi- 
 culty which has always beset common law courts of determin- 
 ing how the violated dignity and sovereignty of the State can 
 
FEEBLE MINDED. 87 
 
 be adequately vindicated in questions of alleged crime, with- 
 out resorting to penalties in extremis, we should long since 
 have been delivered from the dread of the plea of insanity as 
 an answer to indictments. In all other directions save this 
 our common law jurisprudence has been willing to walk in 
 the vanguard of social enlightment, and to follow the lead 
 of such eminent jurists as Lord Mansfield, Sir William Scott, 
 and Sir John Nicoll. But here we are still creeping in the 
 same swaddling clothes which Lord Coke, as our legal wet 
 nurse, put around us in Beverlej/'s case (a,th Rep., 123). It 
 would seem, in fact, that the dread of the effects of a plea of 
 insanity rests solely in the apprehension of losing an oppor- 
 tunity to execute capital punishment upon a human being, 
 whatever his mental state. Courts do not appear to be satis- 
 fied that justice can be fully done and society adequately pro- 
 tected by the incarceration of an insane man indefinitely in a 
 lunatic asylum for criminals. In any other case imprisonment 
 for life is held to be sufficiently severe whenever the least 
 shadow of a doubt as to malice or premeditation exists in re- 
 lation to the crime ; but the moment the question of insanity 
 is raised in connection with crime, we are instantly confronted 
 with such metaphysical riddles as these : There is no per- 
 fectly sane mind save that of the Deity ; therefore, all men 
 are, to a certain extent, insane. Now, tell us how insane the 
 defendant is. Is he within Beverley's case, or McNaughten's 
 case ? Because if so, then, although regarded as insane phys- 
 ically, but legally only partially insane, he is still amenable to 
 punishment. Then follow attempts at legal differentiation of 
 intellectual states, as, for instance, that the defendant knew 
 right from wrong ; that the defendant was rational on all 
 topics but one ; that he knew his own identity — all which a 
 majority of the insane never lose their knowledge of until they 
 become maniacal to incoherence, or demented to fatuity. 
 With scientists such facts are no longer debatable. They have 
 passed out of the field of argument. They are everywhere 
 written in the imperishable runes of scientific experience, and 
 have taken their place among the established laws of our 
 mental constitution. 
 The perpetual contradictions in adjudication, and the cease- 
 
85 THE TNSANE AND 
 
 less grasping of Courts after Ariadne's thread to lead them 
 througli the mazes of this tangled subject, will continue to be- 
 repeated just so long ns we persist in making criminal respon- 
 sibility rest upon any such arbitrary factor as automatic 
 knowledge, independent of power of self-control in action, 
 and as influenced by disease. It is not necessary, however, 
 to the elucidation of this topic that I should review the past 
 history of these conflicting adjudications, which,. relatively to 
 the progress of science, occupy the same position that the Ptole- 
 maic system does to the Copernican. They are only re-affirma- 
 tions of traditional dogmas which settle nothing, and leave us 
 still moving in a circle of endless confusion. I shall limitmyselif 
 to citing the two most recent cases in our own reports, byway 
 of sustaining the assertion made by me that we have not ad- 
 vanced beyond Beverley's case decided over two hundred 
 years ago, and at a time when nothing was known of insanity 
 as a disease, and consequently of its sphere of radiated influ- 
 ences upon thought, action or self-control. It was the rule 
 then to look upon the insane as a class of beings under demo- 
 niacal possession who passed in and out of this condition 
 either through lunar influences or by spiritual self-enslave- 
 ment or purification, and whose lunacy could be scourged out 
 of them by whipping, or purged out of them by priestly exor- 
 cism- — a view which fully justified as a logical outcome the 
 treatment they received both in and out of court. Living 
 under the present scientific illumination of this subject, we 
 should hardly admit that the views of Coke or Hale on insan- 
 ity ever could have been correct. And as their legal doctrines 
 upon it must have taken color from, and represented their 
 knowledge of its phenomena and consequences, we are forced 
 to the conclusion that from so faulty a source no defensible 
 principles of law could flow. Yet these doctrines still sway 
 our jurisprudence because of the fact so well stated by Mr 
 Maine in his work on Ancient Law, that "the stationary con- 
 dition of the human race is the rule, the progressive, the ex- 
 ception. It is indisputable that much the greatest part of 
 mankind has never shown a particle of desire that its civil 
 institutions should be improved since the moment when ex- 
 ternal completeness was first given to them by their embodi- 
 ment in some permanent record " 
 
FEEBLE MINDED. 89 
 
 The first of the cases above mentioned to which I wish to 
 call your attention in this connection is that of the People vs. 
 Montgomery (13 Abbott's P. R., N. S., 207 : A.D. 1871). There 
 Judge Mullin expounded the law relating to the criminal re- 
 sponsibility of the insane in the following words : 
 
 '"In criminal cases proof that the accused was insane when 
 the crime was committed is not enough to require the jury to 
 acquit. It must be shown that the insanity was such as to 
 destroy, for the time at least, the consciousness of the distinc- 
 tion between right and wrong in reference to the act charged." 
 
 The first clause of this opinion concedes the whole question. 
 If the party was insane all his acts were the acts of a mind 
 under duress. Andthe second clause, in which the ability to 
 distinguish right from wrong is made a test of legal responsi- 
 bility, has no foundation in nature to rest upon. The knowl- 
 edge of right and wrong is no more a test of a sane mind 
 than the absence of it is a test of an insane one. All experts 
 in insanity know this to be an unvarying rule. At the an- 
 nual meeting of the British Association of Medical Officers of 
 Asylums and Hospitals for the Insane, held in London, July 
 14, 1864, at which were present fifty-four medical officers, it 
 was unanimously 
 
 Resolved, "That so much of the legal test of the mental con 
 dition of an alleged criminal lunatic as renders him a respon- 
 sible agent, because he knows the difference between right 
 and wrong, is inconsistent with the fact, well known to every 
 member of this meeting, that the power of distinguishing be" 
 tween right and wrong exists very frequently among those who 
 are undoubtedly insane, and is often associated with danger- 
 ous and uncrontrollable delusions." 
 
 In the case of the People v. Kleim (1 Edmonds, 28 n.), Judge 
 Edmonds thus illustrates the value of the right and wrong 
 test when speaking of the defendant : " He knew the act was 
 wrong, yet he was insane. The act of piling up shavings, fast- 
 ening the woman in her hut, and forcing her back into the 
 flames was not ' an involuntary act of the body without the 
 concurrence of a mind directing it,' yet he was insane. He 
 knew the ' act was contrary to the plain dictates of justice and 
 right, injurious to others, and aviolation of the dictates of duty,' 
 
90 THE INSANE AND 
 
 yet he was insane. He knew 'he was acting contrary to law,' 
 yet he was insane. He knew ' the act was one he ought not to 
 do,' yet he was insane."* 
 
 Reverting now to the second clause of Judge Mullin's opin- 
 ion, it would seem to be open 10 still greater objections, for 
 he says : 
 
 " When such a degree of insanity is shown to have existed 
 previous to the offense, the people must prove, in order to 
 convict, that when the crime was committed the insanity had 
 at least temporarily passed away, leaving the prisoner in that 
 condition of mind in which he was morally and legally re- 
 sponsible for the crime. But they are not bound to show that 
 the mind had thrown off the disease, and was restored to a 
 healthy condition." 
 
 There is a painful ambiguity of language here, since if the 
 mind has not thrown off the disease how can it be known even 
 that it has temporarily passed away? Insanity is not, how- 
 ever, an ephemeral disease, coming and going between sun- 
 rise and sunset. If it exists plainly enough to be recognized, 
 it must be considered as already established in the constitu- 
 tion, and if the people " are not bound to show that the mind 
 had thrown off the disease, and was restored to a healthy con- 
 dition," then they can proceed to try and punish a confess- 
 edly insane man, which would be, in fact, a violation of all 
 law, written or unwritten. 
 
 The result of this opinion was the erroneous conviction 
 of the defendant Montgomery, whom a commission, to which 
 I have already averted, found had been a chronic epileptic, 
 and he was, accordingly, sent to the asylum for insane 
 criminals. 
 
 The second case to which I would call your attention, as 
 repeating all these convicted errors of the past, is that of 
 Flanagan vs. the People, (52 N. Y, 467) itself, but reaffirm- 
 ing the decision in {Willis vs. People, 32 N. Y, 717) A. D. 
 i873- 
 
 The opinion of the Court, as pronounced by Judge An- 
 drews, is in the words following : 
 
 * Judge Edmonds' quoted passages are from C. J. Shaw's opinion in Comm. 
 v. Rogers, 7 Metcalf, 500. 
 
FEEBLE MINDED. 9 1 
 
 " When insanity is interposed as a defense to an indictment, 
 the test of responsibility is the capacity of the defendant to 
 distinguish between right and wrong at the time of, and with 
 respect to, the act complained of. 
 
 " The law does not recognize a form of insanity in which 
 the capacity of distinguishing right from wrong exists with- 
 out the power of choosing between them." 
 
 The error of the first clause of this opinion having been 
 sufficiently commented upon in the Montgomery case just 
 cited, I pass to the second proposition. 
 
 1 presume it will be admitted by all that there are many 
 perfectly sane persons who, knowing right from wrong, are 
 yet in circumstances not to be able to choose between them ; 
 as, for instance, where a man under duress commits a misde- 
 meanor, or a married woman in presence of her husband. 
 These are old and well settled principles. And by parity of 
 reason there can be no form of insanity in which a man 
 is not more or less under the constant duress of his malady. 
 It seems illogical to speak of a man with a disordered mind 
 as a free moral agent, and the fact of his being able to dis- 
 tinguish between right and wrong is no more a test of his 
 sanity than his being able to distinguish light from darkness 
 is an evidence of his power of choosing between colors. A 
 paralyzed man whose house is on fire may know that it is 
 wrong to remain in it, but he can exercise no choice about 
 leaving it. He is compelled to one course of action only, de- 
 spite his knowledge and his wishes to the contrary. Those 
 " who know the right, and yet the wrong pursue " are not 
 necessarily malefactors. If there be one expressly character- 
 istic feature in insanity dominating all others, it is that of the 
 extreme difficulty, if not impossibility, of self-control, no less 
 in action than in thought. We all know from experience 
 that the most healthy minds, when strongly moved, are often 
 carried against all power of self-resistance beyond the limits 
 of self-control ; anger and indignation in certain tempera- 
 ments become temporary convulsions. No one pretends, 
 however, that such persons should be exonerated from re- 
 sponsibility on this account, because they have an anchorage 
 in health, and it is their duty to maintain their hold upon it. 
 
92 THE INSANE AND 
 
 But it is very different with the insane, who, having lost their 
 mental ballast, are easily careened and overthrown in the con- 
 test with their own judgment as well as feelings. Such men 
 may know fully, and yet not be able to act any more than a 
 man finding himself falling can choose between a hard and a 
 soft spot on which to alight. It is error to say absolutely that 
 the law does not recognize such operations of nature, for it 
 does constantly. For instance, were a heavy man to slip in 
 the street in a winter's day, and fall upon a child and crush 
 it, would any law punish him for it ? All municipal law must 
 ultimately rest upon the law of nature, and to make artificial 
 rules for civil governmant which are in contravention of the 
 former is to endeavor to be wiser than the Great Author of 
 all law. To lay it down, then, as the solemn adjudication of 
 the highest Court of our State, that " the law does not recog- 
 nize a form of insanity in which the capacity of distinguish- 
 ing right from wrong exists without the power of choosing 
 between them," is to formulate the doctrine that the phe- 
 nomena of nature shall have no other interpretation than 
 Courts choose to give them, which is a practical reaffirmance 
 of the celebrated case of the Propaganda vs. Galileo. 
 
 This doctrine, I am happy to say, is not of universal nor 
 even of general acceptance. And the honorable Bench from 
 which it emanated will, I have no doubt, take occasion, on a 
 fitting opportunity, to revise it. In the case of the People vs. 
 McFarland, (8 Abbott Pr. N. S. 57), one of our best criminal 
 judges, Recorder Hackett, in discussing this point, says that 
 "the power of distinguishing right from wrong in reference 
 to the act is not alone decisive." In a Pennsylvania case, 
 that of the Comm. vs. Haskell (2 Brewster, 401), Judge Brews- 
 ter, after examining the entire scope of the subject, lays down 
 the following sound principles in relation to the criminal re- 
 sponsibility of the Insane. These views, I am happy to state, 
 represent everything which can be demanded by public safety, 
 sound justice and scientific accuracy. They are expressed in 
 the words following : 
 
 " The true test in all cases lies in the word power. Has the 
 defendant in a criminal case the power to distinguish right 
 from wrong, and the power to adhere to the right and avoid 
 
FEEBLE MINDED, 93 
 
 the wrong?" (Vid. Stevsns vs. State, 31 Indiana, 485, and State 
 vs. Felter, 25 Iowa, 67.) 
 
 After a careful consideration of this subject, extending over 
 * a period of many years, first in its purely legal aspects as 
 part of the histpry of our criminal jurisprudence, and subse- 
 quently by personal examinations of a large number of insane 
 criminals and a critical inquiry into the mental phenomena 
 accompanying the commission of their imputed crimes, I am 
 satisfied that the proper manner*of presenting such cases to a 
 jury in a charge from the Court, or before a commission of 
 experts, is to require them to determine the following facts, 
 viz : 
 
 First — Whether the defendant, at the time of the alleged 
 crime, knew the nature and consequences of the act he was 
 committing ? 
 
 Second — Whether, if he did so know them, he had a feloni- 
 ous intent in committing the act ? 
 
 Third — Whether, knowing the nature and consequences 
 of the act, he had the power to choose between doing or not 
 doing it ? 
 
 Fourth — Whether, supposing he had lost the power of choos- 
 ing between right and wrong in reference to the particular 
 act, he had lost that power through disease, and not through 
 intoxication, violent anger, or any form of self-produced 
 mental convulsion? 
 
 I cannot conceive of any case of insanity combined with 
 crime to which these questions would not be relevant. They 
 give the defendant every opportunity of showing what his 
 true mental condition was at the date of the offense,- and at 
 the same time leave no loophole through which simulators 
 can escape detection and conviction 
 
 But there is a far more difficult class of cases to deal with 
 than these, and one which taxes not only the skill of experts, 
 but the legal wisdom of counsel and the judicial forbearance 
 of courts. I allude to those cases of paroxysmal insanity which 
 never come into the field of judicial investigation without 
 giving rise to much unjust criticism upon all knowledge of 
 mental disorder. Thus whenever, upon a return to a writ of 
 habeas corpus, a party is, discharged from a lunatic asylum, 
 
94 THE INSANE AND 
 
 it seems to be taken for granted that he was either illegally 
 committed there or improperly detained beyond the period 1 
 of his established convalescence Apart from forms of pro- 
 cedure required by statute, you will observe that both of the 
 above questions involve radical problems which cannot always 
 be easily or safely decided by a judge at chambers after a. 
 short conversation with the alleged lunatic, or hearing a few 
 affidavits read of persons who have made quasi medical ex- 
 amination of him in an hour's time. Without further testi- 
 mony relating to his life, habits, conduct and conversation, 
 no one can safely undertake to give a final opinion upon his 
 mental sanity. 
 
 I can produce any day a hundred lunatics, selected from 
 our various asylums, who, if they were placed in any parlor 
 or office and engaged in general conversation, would no more 
 reveal their insanity necessarily than they would their reli- 
 gious convictions or their parentage. If you were asked to 
 state under oath what your opinion of such person's sanity 
 was, you would feel almost ashamed to doubt it for fear of 
 casting imputation upon your own. Yet these people are . 
 lunatics, and need hospital treatment. You think they are 
 well because they are not in an actual paroxysm of their 
 malady, but they are just as much within its grasp as a man 
 with tertian ague is within the grasp of his disease on his well 
 days. Insanity, like all the neuroses, is a disease characterized 
 by intermittent exacerbations, and while in its intervals its 
 victims may seem perfectly restored to the eyes of casual ob- 
 servers, experts know but too well the unreliability of any 
 opinion based on a personal examination, when not accom- 
 panied by a complete history of the patient's past life. You 
 have just heard me quote Chancellor Kent's remarks upon 
 the delusive features of insanity, and I will now give you a 
 representative case by way of illustrating more forcibly the 
 point under discussion. 
 
 There is in this city, at the present time, a gentleman whose 
 state of mind is such as to render it expedient that he should 
 receive hospital treatment. He will not submit willingly to 
 a medical examination for that purpose, and thus take steps 
 toward protecting himself against the consequences of his 
 
FEEBLE MINDED. 95 
 
 malady. He has already been mjive different asylums, from 
 some of which he has escaped. He is talented, educated and 
 witty, endowed with cunning and such a happy tour de phrase, 
 that the most astute inquirer cannot, on a cursory examina- 
 tion, catch him tripping, and notices only an excessive volu- 
 bility, accompanied with unnecessary emphasis Yet follow 
 him in the street, and you find him commanding apple women 
 to go down on their knees and repeat the Lord's prayer un- 
 der penalty of eternal condemnation — you find him personi- 
 fying this or that clergyman in order that more consequence 
 may be attached to his preaching — and in various ways is 
 untruthful, deceitful and tricky, with a disposition to be 
 violent if opposed. This is his mental condition in his best 
 present moods. Of course, in his paroxysms he is like other 
 maniacs.' 
 
 Now, the legal question to be asked in such a case is this : 
 Should this man be deprived of his liberty ? Is he dangerous 
 to himself or to others, or is this simply harmless eccentricity 
 exaggerated in degree ? Looking first at the question, irre- 
 spective of the past history of the individual, it seems an un- 
 avoidable conclusion that if he commits trespasses upon apple 
 women in the streets, or assumes the names of other persons 
 for purposes of deception, he is a wrong-doer who may be 
 punished, even though he should do it with the intention of 
 saving their souls — but when, secondly, his past history is in- 
 quired into, and he is shown to have been at various times 
 presumably insane, his present inability to control his actions 
 without encroaching upon the rights of others, though void 
 of criminal intent, shows him to be legally non compos, and a 
 proper subject therefore for commitment to an asylum. 
 
 In cases like the foregoing, our judgment in action should 
 be guided by the reflection that all the tendencies of insanity 
 are toward increase in loss of self-control, consequently of 
 risk to the safety of the individual as well as society. And 
 we are guilty of laches of the most culpable character if we 
 do not act upon the warning given us in the conduct of such 
 a person, even though no criminal intent be proved in it. For 
 the day may come, and too often does come, when, with 
 increasing weakness of self-control, a slight opposition to 
 
g6 INSANE & FEEBLE MINDED, 
 
 the wishes of a lunatic irritates him into an act of irremedia- 
 ble wrong. 
 
 In bringing my paper to a close, I am not unaware of the 
 fact that I have left many topics untouched about which much 
 that is useful could be said. Wills and contracts, for example, 
 are subjects which present a very wide field for inquiry. But 
 I did not come with the intention of discussing insanity in all 
 its legal aspects, nor of giving to my paper the character of 
 an exhaustive monograph upon it. The points to which, 
 under the invitation to address you, I was more particularly 
 requested to direct my attention, had reference to recent 
 lunacy legislation in our State, and in order to justify this, so 
 far as I had any share officially in it, there seemed a necessity 
 for reviewing, in a general way, the history of our common 
 law jurisprudence in its relations to insanity. 
 
 Without claiming, therefore, to be the first discoverer of 
 long-standing deficiencies in this field of municipal law, I 
 still think I have sufficiently pointed them out to you to show 
 that the time is at hand when we must take a new departure, 
 and unaffrighted by the ne plus ultra of Westminster Hall, sail 
 boldly past its Pillars of Hercules ; when we must act upon 
 the conviction that there is a limit even to the value of a pre- 
 cedent; that human laws are but the fallible works of fallible 
 heads, needing to be changed with the increasing light and 
 the varying necessities of every age ; and finally, that it is the 
 duty of those upon whom devolves the administration of our 
 municipal law to see to it that, being its chief instruments of 
 expression, they do not become the chief obstacles to its 
 growth, by clinging to its technical letter rather than follow- 
 ing its animating spirit. 
 
Vr.&ma.Jy SB mil.fi^ a Daguerreotype-: 
 
 *T Turunda 
 
Theodrie Romeyn Beck, M.D., LL.D. 
 
 There is no name on the American continent to whom the 
 science of Medical Jurisprudence is more indebted than that 
 of Dr. T. Romeyn Beck. He, more than any other man of 
 the previous generation, brought forensic medicine to the 
 notice, not only of the two professions of law and medicine, 
 but to the general recognition of the country. 
 
 "Beck's Medical Jurisprudence," originally published in 
 1823, which has passed through many American, English 
 and German editions, was universally acknowledged in its 
 day, to be a leading work on the science, and was as often 
 found upon the shelves of the lawyer's library as that of the 
 medical man. 
 
 Dr. Beck was born at Schenectady, August 11, 1791, and 
 died November 19, 1855. He graduated, from Union Col- 
 lege, Schenectady, at the age of sixteen years, and took his 
 degree at the New York College of Physicians and Surgeons 
 in 181 1. The degree of LL.D. was conferred upon him bv 
 the Mercersburg College, Pennsylvania, and by Rutgers 
 College, New Jersey. 
 
 In 1S15 he was appointed Lecturer on Medical Jurispru- 
 dence in the College of Physicians and Surgeons for the 
 Western District, then established at Fairfield, New York ; 
 and in 1826 was made Professor of Medical Jurisprudence at 
 that College, which chair he held until 1840. 
 
 When the New York State Lunatic Asylum at Utica was 
 founded he was named as one of the Board of Managers, 
 which position he held until his death ; and on the death of 
 Mr. Munson, in 1854, was unanimously elected President of 
 that Board. 
 
 He was a contributor to the American Journal of Insanity 
 while Dr. Brieham was the editor, and, on the death of that 
 
THEODRIE ROMEYN BECK, M. D., LT-. D. 
 
 gentleman in 1S50. was chosen its editor, which position he 
 filled until the year before his death. 
 
 We quote from his remarks on the propo'sed establishment 
 of a university, made in the capitol at Albany, March 30, 
 1853, before the Legislature, the following : 
 
 " We require the appointment under public authority of a 
 Professorship of Medical Jurisprudence or Forensic Medicine. It 
 is not possible to do full justice to this subject in Medical 
 Colleges. We teach there what is known ; we want a person 
 or persons who shall ascertain, if possible, the unknown ; and 
 great as have been the discoveries of late years in this 
 science, still the cunning of the murderer has frequently 
 outrun them. 
 
 " Why should not men duly qualified be appointed to such 
 nn office, who, by their researches, would be far in advance 
 of those who, by secret, and in some cases almost unknown 
 means, prevent detection in the commission of crime. 
 
 " There is a person now living (Orfila), the certainty of 
 whose knowledge on the power of poisons is such, that he is 
 not only called to examine cases in every part of Fiance, but 
 not long since was summoned to Belgium in one, which, at 
 the time, attracted the attention of all Europe. I- hold that 
 there should be two or three such persons of this character 
 appointed and paid by the Government to perform this 
 important duty." 
 
 It seems proper when we are almost at the close of the 
 generation which has passed, since death terminated the 
 labors of this early American student and teacher of forensic 
 medicine, whose name has been so intimately associated with 
 the growth and progress of Medico Legal science in the last 
 years of our century, that we should present his portrait to 
 the members of a society devoted to a science of which he 
 was so lustrous an exponent and ornament. 
 
 We are indebted to Prof. Frank Hastings Hamilton, ex- 
 President and Honorary Member of the Medico-Legal 
 Society, for the leading facts as to the life and death of Dr. 
 Beck, and to his surviving daughter for the engraving which 
 embellishes this volume. c. b. 
 
SUITS FOR 
 
 MALPRACTICE in SURGERY. 
 
 THEIR CAUSES AND THE REMEDIES. 
 
 By FRANK H. HAMILTON, A.M., M.D., L.L.D., of New York. 
 
 Mr. President and members of the Medico-Legal Society 
 of New York : 
 
 In rising to address you this evening, I feel very much as 
 I imagine an offender must feel, who, conscious of his guilt, 
 is brought to the bar for trial in open court. It has been an* 
 nounced that I am to read to you a paper on the subject of 
 prosecutions for malpractice in surgery ; but I come before 
 you without a written paper, and with but little preparation 
 of any kind. Some reasons might be given for these viola- 
 tions of both actual and implied agreement on my part ; but 
 I prefer to offer no apologly, only throwing myself on the 
 mercy of the court. 
 
 Permit me to read to you, as a suitable introduction to my 
 remarks, a letter which I have just received from a surgeon 
 in one of the Western States : 
 
 " Dear Sir : — You have in your possession, I believe, a 
 certain form of agreement, formerly used by yourself when 
 taking charge of important surgical cases. Here, in the midst 
 of an ignorant community, my partner and myself have 
 
 Delivered before the Medico-Legal Society of New York, March 25th, 1875, 
 
98 MALPRACTICE 
 
 learned the folly of being perfectly unprotected while engaged 
 in quite an extensive surgical practice. If you have such a 
 paper, would you be kind enough to send us a copy ? We 
 shall consider it a very great favor. 
 
 "Very respectfully yours, &c." 
 
 This letter is a fair illustration of the character of the notes 
 which I have received every now and then for many years 
 past. Some anticipating (he possibility of a prosecution; 
 others seeking advice as to how to escape a threatened prose- 
 cution ; and others asking my attendance when they are actu- 
 ally prosecuted. 
 
 It is scarcely necessary to say to this audience, and espe- 
 cially to those belonging to the profession of law, that the 
 gentleman who addressed to me this note, was in error in 
 supposing that I had ever used any such form of contract as 
 he refers to, since no contract could be so framed as to relieve 
 the surgeon of the responsibility which he assumes when he 
 undertakes the treatment of a case ; at least I may say that I 
 have never used any such form, and I presume it would be 
 worthless. It will, however, be the purpose of my remarks 
 this evening to answer the questions implied in the letter of 
 my western friend. 
 
 Are surgeons peculiarly liable to prosecution for mal- 
 prectice ? 
 
 Probably it is well known to both the lawyers and medical 
 gentlemen who are present that they are. Indeed, it is a fact 
 so notorious that it would scarcely seem necessary to refer 
 you to the recorded testimony as evidence, or to speak of my 
 own personal experiance as a witness in a large number of 
 cases. But it is doubtful whether any of you, gentlemen, un- 
 less you have given especial attention to the subject, know to 
 what an alarming growth this evil had attained a few years 
 since. 
 
 During the period of time extending from the year 1833, 
 when, on admission to the practice of medicine and surgery, 
 I first became aware of the condition of matters in my pro- 
 fession, down to the year 1856, or thereabouts, suits for mal- 
 practice were so very frequent in the Northern States — 
 they were always less frequent in the Southern States — that 
 
IN SURGERY. 
 
 99 
 
 many eminent men who had acquired reputation as surgeons, 
 in order to escape the danger which seemed to threaten all 
 alike, abandoned the practice of surgery, leaving it to those 
 who, with less skill and experience, had less reputation and 
 property to lose. I have known as many as three cases of 
 prosecution against surgeons in a single term of a court ; and 
 at one time there was scarcely a surgeon in the State of New 
 York, of any respectability, who had not been prosecuted one 
 or more times ; and probably not one who had not been often 
 threatened. Very many had been mulcted in hea^y damages, 
 and not a few of those who secured a verdict in their favor 
 were irreparably ruined, both in purse and reputation, before 
 the case was finally decided. A surgeon in Vermont was 
 prosecuted many years in a case in which the plaintiff claimed 
 damages on the ground that his wife had been treated for a 
 fracture, and confined to her bed for several months, when no 
 fracture existed ; nor did the case leave the courts until the 
 doctor had lost his property in the protracted defense — not, 
 indeed, until the death of the woman enabled the defendant 
 to show the broken bone as proof that he had judged and 
 practiced correctly. In Buffalo, an excellent German physi- 
 cian, with a most interesting family, were brought to ruin, 
 and he sent to an insane asylum, in consequence of a heavy 
 judgment obtained for alleged maltreatment, of a colles frac- 
 ture ; when the treatment had been eminently skillful, and 
 the result quite equal to the average results. A distinguished 
 professor of anatomy was prosecuted for causing a dislocation 
 of the radius and ulna backwards, when, in fact, he only failed 
 to reduce an old dislocation of this character. Another pro- 
 fessor of surgery was prosecuted and made to pay damages, 
 although he never saw the case but once, and then only as 
 counsel. A young surgeon was compelled to pay $600 in 
 damages for reducing a dislocation of the shoulder, because 
 an ignorant jury, and one or two equally ignorant suegeons, 
 thought that if reduced the shoulder would necessarily have 
 been as perfect as before. They held that the doctor had 
 only "partially" reduced the bone, when, in fact, the reduc- 
 tion was complete. 
 
 The best surgeons were the most frequently prosecuted ; 
 
IOO MALPRACTICE 
 
 and the speaker has always felt that he, perhaps, had some 
 reason to complain, inasmuch as he had never been prose- 
 cuted, and he could not, therefore, claim for himself this title 
 to respectability. 
 
 Lest you should think the picture too highly colored in 
 which I have endeavored to represent the condition of mat- 
 ters in our profession a few years since, I will read to you 
 from " Elwell on Malpractice," a work published in 1859, 
 and with which probably most lawyers are familiar : 
 
 " Happily criminal malpractice is rarely met with in courts 
 of justice (the writer might have said almost never, except in 
 the case of empirics), while civil suits for damages are of a fre- 
 quency alarming both to the profession of medicine and to 
 the public. Suits of this class, in some parts of the country, 
 seem to be on the increase. So common is it for the surgical 
 treatment of the oldest and best physicians and surgeons, in 
 general practice to be called in question and overhauled in 
 courts of justice, that there is at this time a general feeling of 
 uneasiness, and a conviction that the business is at best 
 very dangerous, so far as property and reputation is con- 
 cerned. The result is that some of the most thoroughly qual- 
 fied men utterly refuse to attend surgical cases, confining their 
 practice to that of medicine alone. They say the compensa- 
 tion usually attending the practice of surgery does not war- 
 rant a man of property in exposing himself to the probability 
 of having, sooner or later, to defend his treatment in an action 
 for malpractice. Victory in these cases is, in one sense, 
 defeat, because the disgrace, vexation and cost are generally 
 ruinous " (pp. 7, 8). 
 
 In 1856 the Committee on Surgery in the Ohio Medical 
 Society reported: "There is a standing and apparently 
 cumulative evil, — an evil bearing with the weight of an incu- 
 bus upon the profession. It is the frequency of difficulties 
 on account of alleged malpractice in the treatment of frac- 
 tures." The writer adds that in his personal experience 
 "during one week, in as many different counties, four cases 
 were tried." And in conclusion he asks, what can be done to 
 put an end to these unjust charges against surgeons ; and in 
 which they are held responsible for "imperfections resident 
 not in themselves, but in their art." 
 
IN SURGERY. IOI 
 
 Elwell, after referring to a case in whicli a surgeon, having 
 been unsuccessfully and unjustly prosecuted, abandoned the 
 practice of surgery, adds that he " knows many able sur- 
 geons, who, being men of property, will not risk it in the 
 practice of surgery." * * * "There can hardly be found 
 a place in the country, where the oldest physicians in it have 
 not, at some periods of their lives, been actually sued or an- 
 noyingly threatened." (p. 83.) 
 
 In the case of Leighton vs. Sargeant, tried in one of the 
 New Hampshire courts, the Judge remarked, "At the 
 present time it is to be feared, there is a tendency to impose 
 some perilous obligations, beyond the requirements of the 
 law, upon medical men." 
 
 Why is it, then, that while the general laws defining respon- 
 sibilities and regulating practice are the same in regard to 
 every profession and art, we alone should be held to a special 
 and exceptional accountability? Why is it that the lawyer is 
 so seldom prosecuted for having given bad advice ; and which 
 being followed, has resulted in the defeat of his client ? Are 
 lawyers. so much better exponents of their art than we are ? 
 Are their opinions and practices always sound or infallible ? 
 Why is it that the artisan is so seldom prosecuted for dam- 
 ages when his unskillful labors result in loss to his employ- 
 ers? Why are not clergymen prosecuted for malpractice, 
 when it is notorious that their omissions of duty or their 
 actual teachings serid not a few souls to perdition? 
 
 We shall take the liberty of assuming that lawyers commit 
 errors more often than we do, not because they are less qual- 
 ified, but because of the peculiar nature of their calling. In 
 most cases surgeons and physicians are agreed upon the 
 proper practice, but in nearly all cases of law the opposing 
 counsel entertain, or at least give conflicting opinions, and 
 one must be wrong. They are often wrong, even upon points 
 of law. This cannot be denied. Yet they are seldom held 
 responsible in a prosecution for these errors of opinion and 
 practice. 
 
 I shall not attempt to answer these questions. Yet they are 
 grave questions which interest us all deeply, and which courts 
 of law are bound to consider ; and to whatever conclusion 
 
102 MALPRACTICE 
 
 they may arrive, they will never do our profession the injus- 
 tice to say that the physicians and surgeons in this country 
 are not as thoroughly educated and as well qualified to prac- 
 tice in their departments as lawyers are in theirs. They have 
 never said so, nor do we think they are likely to say so. 
 
 My purpose is especially to inquiie why it is that a partic- 
 ular department in surgeryis made the object of prosecutions 
 more than all others. Why does it happen that so large a 
 proportion of the suits against surgeons arise from the treat- 
 ment of fractures and dislocations? Is it because in this 
 branch surgery is less advanced than in any other branch ? 
 or because surgeons have failed to inform themselves as fully; 
 or, in other words, because they have failed fairly to repre- 
 sent in their practice what is really known to our science upon 
 this subject? In short, are they less skillful, less diligent, and 
 less careful here than in the treatment of stone in the bladder, 
 cancer, and a multitude of other diseases and accidents, for 
 which prosecutions are seldom instituted? 
 
 The treatmeet of fractures is, in a great measure, mechani- 
 cal ; and if there is anything in which Americans excel, it is 
 in mechanics. In the mechanical arts we are in fair compe- 
 tition with the world. European surgeons have long con- 
 ceded to us excellence in surgery ; and in the study and treat- 
 ment of fractures they have often conceded to us superiority; 
 especially have these acknowledgment been made to us during 
 the last quarter of a century. When I first undertook to make 
 a special study of this subject, I found that while our sur- 
 geons had carefully studied and often used the apparatus of 
 foreign surgeons, they had in most cases modified the appara- 
 tus of Desault, Boyer, Amesbury, Cooper and others, or they 
 had invented entirely new forms of apparatus and of dressings 
 most of which were plainly improvements. Witness, espe- 
 cially, Crosby's adhesive plaster extension, and the weight 
 and pulleys as applied by Buck. These two inventions, in 
 themselves alone, marked an era in the successful treatment 
 of fractures of the thigh. 
 
 To what then shall we ascribe the frequency of these prose- 
 cutions in the case of fractures and dislocations ? 
 
 To my mind it is plain that, in the absence of any other 
 
IN SURGERY, 103 
 
 condition of peculiarity, as distinguishing this department 
 from other departments in surgery, we must ascribe it to the 
 fact, that we did not know ourselves the deficiencies of our 
 art in this regard. We did not know its necessary imperfec- 
 tions ; and we not only believed, but we constantly taught 
 that we were able to make broken limbs more perfect than 
 we actually could make them. We greatly under-estimated 
 the difficulties of diagnosis and of treatment in both fractures 
 and dislocations. 
 
 In my early days I was disposed to lay most of the blame 
 upon lawyers. I supposed that a certain class of pettifogging 
 lawyers hunted up these cases and incited the people to pros- 
 ecutions. But I have changed my mind upon this point. 
 Perhaps they are in some degree responsible ; but I am con- 
 vinced that the responsibility rests mostly with ourselves. 
 Many writers upon surgery, and most practical surgeons, 
 have claimed too much. They declared that they could do 
 many tilings which they could not ; and their patients have 
 simply taken them at their word, and required of them dam- 
 ages when they have fallen short of their own claims and 
 promises. 
 
 My friend, Mr. Bell, interrupts me to say, that in matters 
 of law the people expect them to perform impossibilities. 
 Perhaps lawyers can do this ; but my experience is that in 
 medicine and surgery we cannot, and that it is not the part 
 of prudence to claim that we can. At all events, if we do so, 
 and failing we receive censure, we shall have no one to blame 
 but ourselves. 
 
 Observe now that in every department of surgery, except 
 in that relating to fractures and dislocations, we have fortified 
 ourselves with ample and carefully studied statistics as to the 
 probable success of the various operations, and procedures. 
 Our books supply us with accurate statistical information as 
 to the relative success of each mode of operating for cata- 
 ract, and even measure the amount of vision which success 
 implies. It is the same with laryngotomy and treacheotomy 
 in cases of croup. We know just what is the average success 
 for every year of life. It is the same with paracentesis thora- 
 cis, with aesophagotomy, with herniotomy, ovariotomy, lithot- 
 
104 MALPRACTICE 
 
 otny, lithotrity, urethrotomy, with operations for all the 
 various forms of tumors and of cancer. In' amputations we 
 know what is the chance of success for each limb of the body 
 and for each fraction of a limb. These facts being known, no 
 one expecting to be believed, or hoping to be respected, pre- 
 tends that in his hands deaths and failures never occur. If he 
 does he must present new procedures, such as has never be- 
 fore been thoroughly tried, and the testimony must be circum- 
 stantial, full and patent to all. 
 
 In relation to fractures and dislocations alone, has there 
 been, from the earliest periods, an omission to supply similar 
 statistics. 
 
 I must be pardoned, gentlemen, for an allusion to my own 
 labors in this direction. Never in the history of surgery, so far 
 as 1 know, was this undertaken until it was undertaken by 
 myself. On the one hand, a majority of the most experienced 
 surgeons, such as Chelius, Valpeau, Nelaton, John Bell, Ben- 
 jamin Bell, had spoken very frankly and honestly upon this 
 subject. Malgaigne especially had alluded to the practice of 
 certain " pretenders " of overstating their success in the treat- 
 ment of fractures; but no one based his assertions upon care- 
 fully recorded and tabulated experience. From hospitals 
 there was occasionally issued a report giving the number of 
 fractures treated and cured ; but in no case were we informed 
 as to the nature of the cure, the amount of shortening, de- 
 formity, &c. It was this fact which prompted Johnson's reply 
 to Radley, who treated all fractures without splints. "That 
 a cure took place we do not doubt, but the information we 
 would most desire would be on the length of the cured limb, 
 and on a few other matters of that sort." 
 
 On the other hand, there were a feu-, both in this country 
 and abroad, who affirmed that in their hands broken bones 
 were always restored to their original perfection, and if it ever 
 happened otherwise it was the fault of the patient and not of 
 themselves ; and in the courts of law these men often appeared 
 as witnesses against their unfortunate brethren. 
 
 Under these circumstances I would not have ventured to 
 publish in full the results of treatment in my own practice 
 without at the same time giving the results in the practice of 
 
IN SURGERY. 105 
 
 others. I was not prepared to make so great a sacrifice ; nor, 
 indeed, would it have been accepted as authority unless in- 
 dorsed by the like experience of other good surgeons. 
 
 After having recorded and tabulated my own cases, I vis- 
 ited the hospitals in New York, Philadelphia, and other large 
 cities, and obtained permission to examine all broken bones 
 then under treatment or remaining in the hospital. I exam- 
 ined all such cases as my brother practitioners permitted me 
 to examine, including cases of old fractures, as well as new. 
 Museum specimens were carefully measured at home and 
 abroad Fortified by the testimony thus obtained, the results 
 were tabulated and published. The first, comprising only J36 
 cases, were published in the Buffalo Medical Journal for April, 
 1849. In 1853, Dr. John Boardman, of Buffalo, compiled 
 from my notes additional cases, 461 in all, and published the 
 same in pamphlet form. In 1855, by request of the American 
 Medical Association, I began a series of papers, under the title 
 of "Deformities After Fracture," which were published in 
 the transactions of the Society for the years 1866-7-8, giving 
 a detailed history of 605 cases, with their final results. 
 
 That these investigations had not been seriously under- 
 taken by any other writers, that they were necessary as a 
 first step in the further advance of this branch of surgery, 
 and that they met the approval of the profession, it may be 
 proper for me to show by a reference to other testimony than 
 my own. 
 
 Says Ewell : " Except ten able reports of Professor Hamil- 
 ton upon ' Deformities After Fractures," made to the Ameri- 
 can Medical Association, and where now and then a case has 
 found its way into the medical periodicals, this subject is 
 scarcely alluded to in the whole range of medical literature." 
 
 (P. iv.) 
 
 " The labors of Professor Hamilton are herculean, and 
 the results of great practical importance to the surgeon." 
 (p. 86.) 
 
 Professor Dawson, in a report on Surgery, made to the 
 Ohio Medical Association, in connection with some very kind 
 and complimentary remarks in relation to my labors, says : 
 " Deformities, shortening, &c, of course escaped the atten- 
 
106 MALPRACTICE 
 
 tion of no one who had any experience in surgery ; yet, 
 strange as it may seem, only an occasional hint, or some 
 accidental remark with reference to the subject, is the most 
 that has been recorded. No attempt upon anything like an 
 extensive collection of cases has been made, to state what 
 have been the usual results of fractures ; what proportion of 
 all the cases treated has been dismissed perfect," &c. 
 
 " This is one of the most valuable contributions ever made 
 to American surgery * * * We now know the usual 
 amount of deformity in cases of fractures when treated skill- 
 fully, and a long-felt desideratum is supplied." — New York 
 Journal of Medicine, 1 85 8 
 
 These are a few of the many responses made to the publi- 
 cation of histories and statistics which I had feared would 
 provoke only criticism and censure ; but I am happy to avail 
 myself of this opportunity — the only one in which it has 
 seemed proper to to me to do so — to thank my professional 
 brethren for the cordial support which they everywhere gave 
 me. So far as I know there was not a medical journal, either 
 at home or abroad which questioned either the accuracy or 
 the value of these reports. 
 
 For a time there was a comparative infrequency in prose- 
 cutions; and those which were instituted were less often suc- 
 cessful. So I am informed by lawyers, and surgeons have 
 often said the same thing to me. Up to a recent period this 
 decline in prosecutions has been everywhere noticed, and 
 made the subject of comment , but prosecutions are again 
 becoming frequent, and this fact calls for an explanation. 
 
 In the lapse of time — as year has succeeded year, and month 
 succeeded month — indeed, in almost every week of the year, 
 there has been presented through the medical journals some 
 new or modified plan of treating fractures. In almost every 
 instance it is distinctly claimed that the results of treatment 
 by these new methods are better than have hitherto been at- 
 tained ; and in very many instances it is claimed that the re- 
 sults attained have been invariably perfect. No doubt some 
 real improvements have been made, and we are making steady 
 but slow progress in the right direction. My own plans of 
 treating most fractures have been modified and changed from 
 
IN SURGERY. 107 
 
 time to time, as a reference to the successive editions of my 
 Treatise on Fractures and Dislocations will show. But a large 
 proportion of the new or modified methods are not real im- 
 provements, and cannot be adopted notwithstanding their 
 inventors claim so much for them. They do not stand 
 the test of experience. We are still unable to make perfect 
 femurs in all cases, or perfect clavicles. In fact, imperfection 
 in all forms of fractures is still the rule, and perfection the 
 exception. 
 
 Let us see, then, what is the natural or inevitable effect of 
 this teaching. Let us see what must come of these exagger- 
 ated and unjust claims, if their authors' statements are be- 
 lieved by the people. If, in any case of fracture, we shall 
 hereafter adopt a plan of treatment which was in use twenty 
 years ago, and the result is not a perfect limb, we shall be 
 held responsible for having selected a plan known and admit- 
 ted to be imperfect. If, on the other hand, we adopt one of 
 the new methods so much vaunted, and fail, as we probably 
 shall, we shall be charged with unskillful use of the new 
 method. The error will be, in the latter case, not in the 
 choice of appliance, but in the choice cf surgeon. This is all 
 right, if what these men say of their appliances and skill is 
 true ; but if it is not true, then their untruths are cruelly op- 
 pressive, and their authors deserve at least reproof. If they 
 have blundered into these errors, they are scarcely less repre- 
 hensible than if they had made these assertions knowing them 
 to be false, and solely for the purpose of making for them- 
 selves a reputation at the expense of others. Subjects of so 
 much importance as these admit of no loose, reckless and 
 blundering statements. The labor which one such false state- 
 ment costs, in order that it may be disproven and the truth 
 brought to the surface, can searcely be estimated. It is 
 sometimes immense. You see, then, what teachers of this 
 kind cost to the world at large, and how they retard the pro- 
 gress of science. 
 
 What then is to be done ? Men have never ceased, and 
 never will cease, to do this thing ; and by many their state- 
 ments will always be believed. What you have to do is this — 
 you will have to begin again where the work was begun 
 
108 MALPRACTICE 
 
 thirty years since. Some one will have to sacrifice himself 
 for the public good, and prove by his own failures that oth- 
 ers, with the same appliances and with no more genius than 
 he possesses, must have made failures also. All the ground 
 must be gone over again; and this will have to be done 
 every quarter of a century, so long as human nature remains 
 the same. 
 
 Finally, the answer to the note inquiring how a surgeon 
 who practices skillfully and carefully his profession shall pro- 
 tect himself against unjust prosecutions for malpractice, is : 
 The profession and the world must be taught to understand 
 that the science of surgery has not yet attained perfection, 
 and no more in the department relating to the treatment of 
 fractures than in any other department. They must be taught 
 also, as nearly as possible, what that degree of imperfec- 
 tion is. 
 
 One thing more I wish to say before I close. I am often 
 quoted as saying that all broken bones must shorten. If those 
 who quote me will read my writings they will find that I have 
 never said anything of the kind, or anything which could bear 
 this construction. I have had a great many bones unite in 
 my own experience, in both public and private practice, with- 
 out any shortening or deformity ; probably quite as many as 
 any other surgeon. 
 
 I will detain you no longer ; I am the more willing to re- 
 linquish the floor because I see before me a gentleman, Dr. 
 Stephen Smith, who has given much attention to this subject, 
 and because I would like to hear the opinion of the lawyers 
 who are present, and who must be able to give us much useful 
 information upon the matter of civil malpractice suits, their 
 causes and their remedies. 
 
 Note. — I have lately received a small and very interesting volume on " Civil Malpractice,'' 
 by M. A. McClelland, M. D., of Knoxville, 111., in which the author remarks : "In respect 
 to surgical cases that are investigated in our Courts, how frequently we hear surgeons— experts 
 — boasting of the cures they have effected' in similar cases: no shortening, no deformity in 
 their experience ; leading the Courts, leading Jurors, leading every one within the sound of 
 their voice to suppose that perfect cases were and should be the rule, and imperfect cures the 
 exception. How far such statements are borne out bv facts we all well knoiv." (p. 8) "In the 
 language of a former President of this Society, (Dr. Reece), we can stop these unjust prosecu- 
 tions by being candid in regard to our own deficiencies, claiming no more than we can perform, 
 no more knowledge than we possess,' &c fp. 9.) 
 
 Says Mr. Holthouse, in " Holmes' Surgery,'' p. 866, Vol. IV., Second Ed. : " Surgeons are 
 still to be found hardy enough, or ignorant enough, to repeat the fallacies which have been so 
 often refuted, and to vaunt their success in the cure of oblique fractures in the adult, without 
 shortening. Why do not these surgeons, instead of publishing their cases in the journals, pro- 
 duce their patients at some of the medical societies?" 
 
SUICIDE; 
 
 HISTORY OF THE PENAL LAWS RELATING TO IT 
 
 IN THEIR LEGAL, SOCIAL, MORAL AND 
 
 RELIGIOUS ASPECTS, IN ANCIENT 
 
 AND MODERN TIMES. 
 
 By R. S. GUERNSEY, Esq. 
 
 The subject of suicide, as it has been viewed at various 
 times and in various nations, is important as well as remarka- 
 bly interesting. 
 
 Penal laws are commonly called criminal laws, and are for 
 the sole purpose of the protection and welfare of the body 
 politic — the state and its members ; and penalties are pre- 
 scribed by the law-making power with that end in view. 
 
 I do not use the word penal here in its narrow legal sense, 
 but in the broad sense of penalty of every kind and nature, 
 legal, social, moral and religious, in connection with this 
 subject. 
 
 The importance of the subject strikingly appears by com- 
 paring the statistics of homicide in the United States as given 
 in the census of 1870. The table also shows by means of 
 colored parallelograms the positive and relative degrees of 
 homicide and suicide in different parts of the country as well 
 as in each State In the eastern States suicide appears to be 
 about six times as frequent as murder. In the western States 
 
 Read before the Society, Sept. 23d, 1875. 
 
IIO PENAL LAWS 
 
 there is a larger portion of murder and about two-thirds less 
 of suicide. The north presents a broad field of homicides> 
 nearly twice as large as that of all the rest of the country, 
 with a very narrow strip of suicides. Allowances should be 
 made for the unsettled condition of the government in the 
 southern States at the time covered by these statistics. In 
 New York and New Jersey suicide is about three to one of 
 murder ; and in Pennsylvania, about two to one. The pro- 
 portion of suicides to murders is always in excess in all coun- 
 tries. From the above it appears that man is literally his own 
 worst enemy, when taken in the aggregate in a community. 
 
 As the punishment of a sucide can only act upon that which 
 he has left behind him — his reputation and his fortune, and 
 its effects upon his relatives and friends, no little difficulty 
 has been experienced and ingenuity displayed as to how this 
 would be the most effective as a preventative of this loss to 
 the State, as it has been almost universally regarded. 
 
 In the famous essay by Beccaria on " Crimes and their 
 Punishment," first published in Naples, in 1764, he thus dis- 
 courses on this subject : 
 
 " Suicide is a crime which seems not to admit of punish- 
 ment, properly speaking, for it cannot be inflicted but on the 
 innocent or upon an insensible dead body. In the first case, 
 it is unjust and tyranical, for political liberty supposes all 
 punishments entirely personal ; in the second, it has the same 
 effect, by way of example, as the scourging a statue. Man- 
 kind love life too well ; the objects that surround them ; the 
 seducing phantom of pleasure and hope, that sweetest error of 
 mortals, which make men swallow such large draughts of 
 evil mingled with a very few drops of good, allure them too 
 strongly, to apprehend that this crime will ever be common 
 from its unavoidable impunity, The laws are obeyed through 
 fear of punishment, but death destroys all sensibility. What 
 motive, then, can restrain the desperate hand of suicide ? He 
 who kills himself does less an injury to society than he who 
 quits his country forever, for the other leaves his property 
 behind him, but this carries with him at least a part of his 
 substance. Besides as the strength of a society consists in 
 the number of citizens, he who quits one nation to reside in 
 
OF SUICIDE. Ill 
 
 another, becomes a double loss. This then is the question 
 whether it be advantageous to society that its members should 
 enjoy the unlimited privilege of imigration ?" 
 
 "If it be demonstrated that the laws which imprison men in 
 their own country are vain and unjust, it will be equally true 
 of these which punish suicide, for that can only be punished 
 after death, which is in the power of God alone ; but it is no 
 crime, with regard to man, becaused the punishment falls on 
 an innocent family. If it be objected that the consideration 
 of such a punishment may prevent the crime, I answer, that 
 he who can calmly renounce the pleasure of existence, who 
 is so weary of life as to brave the idea of eternal misery will 
 never be influenced by the more distant and less powerful 
 considerations of family and children." 
 
 It is truly astonishing that so thoughtful a man as Beccaria 
 should thus combat the reason, observation and experience of 
 ages, and even the dictates of every heart who has any rela- 
 tives or dear friends whose feelings of grief or shame are 
 thought of or cared for above a feeling of revenge or sudden 
 passion. 
 
 . Popular opinion has always been against it in proportion to 
 its prevalence, because no one knows when or who may be 
 stricken down by this dreadful means if it is not discouraged. 
 
 There are two classes of voluntary deaths ; one may be 
 termed the vicious and criminal, which is that suicide by 
 which a man under the influence of selfish impatience or ap- 
 prehension withdraws himself from them by death. The other 
 is where life is sacrificed in the observance of duty or in the 
 practice of virtue, and then it must be for others; in other 
 words, it must be a martyrdom or heroic death, voluntarily 
 imposed, in order to be justifiable. 
 
 When it was suggested to Flavius Josephus the Jewish 
 christian and warrior to destroy himself, he replied : " Oh ! 
 my friends, why are you so earnest to kill yourselves ? Why 
 do you set your soul and body, which are such dear compan- 
 ions, at such variance ? It is a brave thing to die in war, but it 
 should be by the hands of the enemy." 
 
 The Mosaic law contained no penalty against self-destruc- 
 tion. The first instances of suicide recorded in Jewish his- 
 
I I 2 PENAL LAWS 
 
 tory are of Saul and his armour-bearer, 1055 years before the 
 Chtistian era. Samson's dent!) cannot properly be called 
 suicide,and there is but one other recorded in the Bible,being 
 that of Anhitibel. Public opinion was against it among the 
 Jews. It was their custom to bury all executed criminals on 
 the day of their death, at sunset, by the officers of the law, 
 without any ceremonies and not in the family sepulchre. The 
 bodies were buried and kept until the flesh was consumed, 
 the bones were then given to the relatives to be interred 
 among the family graves. It was regarded as a very great pun- 
 ishment not to be buried by relatives and friends and not to 
 have great ceremony, according to wealth and rank, and not 
 to be buried with their fathers — they abhorred being "buried 
 like an ass," as their writers expressed it. It is probable that 
 in olden times suicides were buried by them like criminals. 
 
 Among the ancient Jews if a man was found guilty of a 
 capital offense and condemned to be hanged, his body was not 
 to remain after sunset on the tree, but, says the Mosaic law, 
 "Thou shalt bury him that day, that thy land be not defiled, 
 for he that is hanged is accursed of God." 
 
 In the time of Moses and under the custom and laws which 
 prevailed during the period mentioned in the old testament, 
 many of the criminals and suicides who had no relatives or 
 friends to look after their burial, may have been literally 
 " buried like an ass," that is, an outcast without friends, and 
 perhaps unknown. For a description of such a burial place 
 see title "Gehenna," in Chamber's Cyclopedia." 
 
 The Jews seldom mourn for such as are suicides or who die 
 under excommunication. So far, indeed, are they from re- 
 gretting the loss of them, that they set a stone over the coffin 
 to signify that they ought to be stoned to death, if they had 
 their deserts for thus violating the law of God and doubting 
 His promises. This punishment of stoning to death was ad- 
 ministered in cases of blaspheming and heresy, and many of 
 the capital crimes, among the ancient Jews. 
 
 Josephus mentions that in Judea the body of a suicide was 
 only buried at sunset, he was then denied the usual burial 
 ceremony. Suicide never was frequent among them, for if it 
 had been it would have been more often mentioned and there 
 
OF SUICIDE. 113 
 
 would have been a more general law or declaration against it, 
 for the Jews were particularly watchful for the welfare of the 
 State and the preservation of its members. Saul's death was 
 regarded as if he had been killed in battle by his enemies — 
 as his wounds were fatal, and he had rather die than be taken 
 -captive. 
 
 The modern Jewish law is the same now as it was for some 
 centuries before the Christian era. 
 
 The fashionable mode of suicide among the Jews seems 
 to have been by throwing themselves from the roof of a house. 
 The act must be deliberate. If a person immediately after 
 declaring his intention to commit self-destruction was seen to 
 ascend the roof of a house and throw himself off he was deemed 
 a suicide. But, any one who is found dead, no matter if he 
 be strangled, hung on a tree, or stabbed with a sword, he is 
 not deemed a suicide. A murderer, overtaken by justice and 
 confined in prison, who is after a while found dead in his cell, 
 is not to be treated as a suicide under the law. A child or an 
 idiot who kills himself is not treated as a suicide under the 
 law, nor is the adult who is driven to the act under circum- 
 stances like King Saul. But only he can be treated as a 
 suicide under the law who has previously, while in a sane 
 state of mind, declared his intention to destroy himself. 
 
 Says a standard work on their laws : 
 
 " If any one in anger shall be seen to throw himself from 
 the roof of a house, or to commit suicide, there shall be no 
 mourning observed, nor keriah (rending of the garments), nor 
 any office performed in honor of the dead, as in other cases. 
 None of the rules of mourning is to be observed." He is not 
 eulogized — the garments are not cut, the shoes are not re- 
 moved, etc. ; but all that is usually observed to comfort and 
 to sympathize with the relatives is permitted. 
 
 Among the Jews, suicides and murdered persons are buried 
 in the clothes they have on when they die. 
 
 In some of the Oriental countries suicide is in some in- 
 stances not only legal, but esteemed to be meritorious ; and 
 this is said to be on the authority of the ancient sacred books 
 of the Hindoos. 
 
 In India, the self-sacrifice of widows and self-immolation 
 
114 PENAL LAWS 
 
 under the car of Juggernaut are now prohibited by the Brit- 
 ish government. 
 
 In China, self-destruction is no crime, and it has been so 
 for thousands of years. It is a favor to allow a condemned 
 criminal to be his own executioner. 
 
 In Japan, self-destruction is not only frequent but is con- 
 sidered meritorious in many instances. When an 'official 
 has committed an offense, or even when there has been in 
 his department a violation of law, although beyond his power 
 of prevention, in order to avoid capital punishment, (which 
 extends to the slightest offenses) he anticipates it by disem- 
 boweling himself. By this act of self-destruction he saves 
 his property from forfeiture and his family from death. With 
 many of the high officials it is a point of honor thus to kill 
 themselves, on any failure in their departments, and their 
 sons are often promoted to high rank as a reward for the 
 father's compliance with the established usage. 
 
 If these customs were introduced here in similar cases by 
 officials we would probably have a more faithful administra- 
 tion of public trusts. Suicide would then undoubtedly be 
 more frequent than now, but the public would have less rea- 
 son to lament its occurrence and example than at present. 
 
 By the Code Annamite, translated from the original Chi- 
 nese in 1865, by which Cochin China is at present ruled, and 
 is entirely founded on the model of the code which now gov- 
 erns China, it particularly provides for those who desire to 
 commit suicide in order to spite other people. " Every wife 
 of a hard and disagreeable character," declares this Chinese 
 code, " who has caused her husband such vexations that he 
 has committed suicide, will be condemned to immediate 
 strangulation." " The persons who drive another to suicide 
 by words or acts are to be capitally condemned." " The pun- 
 ishment inflicted on persons who, by reason of their health 
 or any influence or power they may possess, are of a tyranical 
 character, and who consequently insult or oppress quiet per- 
 sons, so that the latter out of despair commits suicide, shall 
 be decapitation." 
 
 The desciples of Zeno, the Stoics, held that self-destruction 
 when not caused by despair is not necessarily immoral, is 
 
OF SUICIDE. 115 
 
 frequently praiseworthy, and under certain circumstances is 
 even prescribed by duty, yet the corpse of the suicide accord- 
 ing to old usage remained unburied. 
 
 In the early part of the Christian era the bodies of suicides 
 were left unburied by them, they believing that the soul 
 would still linger around it and share its ignominy until it 
 was buried, which was generally done after all means of iden- 
 tification had disappeared. As stoical philosophy advanced 
 in popular estimation this custom ceased. 
 
 The stoical system of ethics was, in the highest sense, a sys- 
 tem of independent morals. It taught that our reason reveals 
 to us a certain law of nature, and that a desire to conform to 
 this law, irrespectively of all considerations of reward or pun- 
 ishment, of happiness or the reverse, is a possible and a suffi- 
 cient motive of virtue. It was also in the highest sense a sys- 
 tem of discipline. It taught that the will, acting under the 
 complete control of the reason, is the sole principle of virtue and 
 that all the emotional part of our being is of the nature of a 
 disease. Its whole tendency was therefore to dignify and 
 strengthen the will, and to degrade and suppress the desires. 
 It taught, moreover, that man is capable of attaining an ex- 
 tremely high degree of moral excellence; that he has nothing 
 to fear beyond the present life ; that it is essential to the dig- 
 nity and consistency of his character that he should regard 
 death without dismay, and that he has a right to hasten it if 
 he desires. 
 
 The ancient Greeks and Romans were by no means unani- 
 mous in their approval of the liberty to commit suicide- 
 Pythagoras is stated to have forbidden men "to depart from 
 their guard or station in life without the order of their com- 
 mander — that is of God." Plato adopted similar language, 
 though he permitted suicide, when the law required it, and 
 also when men had been struck down by intolerable calamity. 
 Aristottle condemned it on civic grounds as being an injury to 
 the State. Virgil painted in the darkest colors the condition 
 of suicides in the future world. Cicero strongly asserted 
 the doctrine of Pythagoras, though he praised the suicide 
 of Cato. Apuleius, expanding the philosophy of Plato taught 
 that "the wise man never throws off his body except by the 
 
Il6 PENAL LAWS 
 
 will of God." Caesar. Ovid, and others, admitted that in ex- 
 treme distress it is easy to despise life, but urged that true 
 courage is shown in enduring it. Virgil described the souls of 
 suicides in the future life in a depreciative manner. 
 
 According to Euripides, Herecules said : "I have consid- 
 ered, and though oppressed with misfortunes, I have deter- 
 mined thus ; Let no one depart out of life through fear of 
 what may happen to him ; for he who is notable to resist 
 evils will fly like a coward from the darts of an enemy." 
 
 Cicero brings before us a passing notice of Hegesias who 
 was surnamed by the ancients, "the orator of death." His 
 eloquence was so intense and fascinating in regard to the 
 tomb and the future life, that multitudes freed themselves, by 
 suicide, from the troubles of the world, and sought happiness 
 beyond the grave, and the contagion was so great that 
 Ptolemy, it is said, was compelled to banish the philosopher 
 from Alexandria. 
 
 As a general proposition the law recognized suicide as a 
 right, but slight restrictions arose from time to time. Seu- 
 tonius speaks of Claudius accusing a man for having tried to 
 kill himself. Ziphilin says that Hadrian gave special per- 
 mission to the philosopher Euphrates to commit suicide " on 
 account of old age and disease." 
 
 A very strange law, said to have been derived from Greece, 
 is reported to have existed at Marseilles. Poison was kept 
 by the Senate of the city and given to those who could prove 
 that they had sufficient reason to justify their desire for death 
 and all other suicide was forbidden under penalty of disgrace 
 to their remains. The law was said to be intended to prevent 
 hasty suicide and to make deliberate death as rapid and 
 painless as possible.* 
 
 There was some sound philosophy in this law as the follow- 
 ing anecdote will illustrate : 
 
 A French cobbler had resolved to commit suicide ; and, to 
 
 * In nearly all European countries and in many of tlie American States there 
 are laws regulating and restricting the sale of poisons, the objects of which in 
 part are to prevent hasty suicides by such means, as it is the most prevalent 
 choice of self-destruction. In France and Germany the laws are very stringent 
 in this particular. 
 
OF SUICIDE. II7 
 
 make his exit more heroic, prepared the following memorial 
 in writing • " I follow the lesson of a great master, and as 
 Moliere says, 
 
 When all is lost and even hope is fled — '' 
 
 He had just written thus far and applied the fatal knife to 
 the carotid artery, when suddenly recollecting, he stopped, 
 and said to himself: "Eh ! but is it Moliere who says so ? I 
 must make sure — if not, I shall be laughed at." He now got 
 Moliere, read a few comedies, changed his mind, and returned 
 to his cobbler's bench, 
 
 Pythagoras forbade suicide among the Greeks. By the law 
 of Thebes suicides were to have no honors paid to their 
 memory. 
 
 The Athenian law ordained that the hand which attempted 
 or committed the deed be cut off and burned apart from the 
 body. 
 
 Plutarch informs us that an unaccountable passion for 
 suicide seized the Milesian virgins. A decree was issued that 
 the body of every young woman who hanged herself should 
 be dragged naked through the streets with the same rope with 
 which she had committed the deed. As it was not fashiona- 
 ble to commit suicide in any other manner, this effectually 
 stopped it. 
 
 By the Roman jurists neither suicide or self-mutilation was, 
 as a rule, regarded as criminal either in consumation or at- 
 tempt. They sometimes expressed the qualification that the 
 consent of the Senate or Emperor was necessary to justify 
 suicide. 
 
 The first Roman Law occurs in the reign of Tarquinius 
 'Priscus, the Vth King of Rome, about 606 years before Christ. 
 The soldiers who were appointed to make drains and common 
 sewers, thinking themselves disgraced by such servile offices, 
 put themselves to death in great numbers. The king ordered 
 the bodies of all self-murderers to be exposed on crosses in 
 the public places. This put an end to it. 
 
 A rescript of Hadrian, (the XVth Emperor of Rome) about 
 117 years before Christ, expressly directed that these soldiers, 
 who, either from impatience of pain, from disgust of life, 
 from disease, from madness, from dread of infamy or disgrace, 
 
1 18 PENAL LAWS 
 
 had wounded themselves or otherwise attempted to put an 
 end to their life should only be punished with ignominy. But 
 the attempt of a soldier at self-destruction on other grounds 
 was a capital offense and likened to desertion Persons being 
 under prosecution for heinous offenses or being taken in the 
 commission of a great crime, who put an end to their life to 
 escape punishment, forfeited all their property to the Fiscus. 
 It was not otherwise forbidden. 
 
 It had become customary with manv men, in Rome, who 
 were accused of political offenses, to commit suicide before 
 trial, in order to prevent the ignominious exposure of their 
 bodies and the confiscation of their goods. This deprived 
 the emperor of a large source of revenue, and Domitian, 
 about A. D. 80, ordained that the suicide of an accused person 
 should entail the same consequences as his condemnation. 
 
 Tacitus says that Tiberius, about the beginning of the 
 Christian era, gave an encouragement to criminals to become 
 their own executioner. 
 
 In a law of Mark Anthony, which is still in the Roman law, 
 we find it written, " If your brother or your father being con- 
 victed of no crime hath put himself to death, either to avoid 
 pain, or being weary of life, or from despair or madness, his 
 will shall, nevertheless, be valid ; or, if there is no will, his 
 heirs inherit according to law." 
 
 In Justinian's Pandects, made about A.D. 533, there is a 
 law " that if persons accused or who have been found guilty 
 of any crime, should make way with themselves, their effects 
 should be confiscated." But this only took place when con- 
 fiscation of goods happened to be the penalty appointed by 
 the law for the crime of which the suicide was found guilty. 
 By custom it was inflicted on suicides in any other circum- 
 stances. 
 
 The learned Grotius in his famous work on the Law of 
 Nature and of Nations, published two centuries and a half 
 ago, thus speaks of suicide : 
 
 " The rule that prevailed among the Hebrews with respect 
 to burying the dead, contained an exception, as we are in- 
 formed by Josephus, excluding those who had committed 
 suicide. Nor is it surprising that a mark of ignominy should be 
 
OF SUICIDE. 119 
 
 affixed to those on whom death itself connot be inflicted as a 
 punishment. Aristotle, in the 5th book of his Ethics speaks 
 of the infamy universally attached to suicide. Nor is the ob- 
 servation at all weakened by the opinions of some of the 
 Grecian poets, that as the dead are void of all perception, 
 they cannot be affected either by loss or shame. For it is a 
 sufficient reason to justify the practice, if the living can be 
 deterred from committing actions for which they see a mark 
 of infamy set upon the dead. 
 
 "In opposition to the Stoics and others who admitted the 
 dread of servitude, sickness, or any other calamity, or even 
 the ambitious love of glory to be a just cause of voluntary 
 death, in opposition to them, the Platonists justly maintain 
 that the soul must be retained in the custody of the body, 
 from which it cannot be released, but at the command of Him 
 who gave it. On this subject there are many fine thoughts 
 in Platonus, Olympiodorus, and Macrobius on the dream of 
 Scipio. 
 
 "Brutus, following the opinions of the Platonists, had for- 
 merly condemned the death of Cato, whom he himself after- 
 wards imitated. He considered it as an act of impiety for any 
 one to withdraw himself from his allegiance to the Supreme 
 Being, and to shrink from evils which he ought to bear with 
 fortitude. And Megasthenes, as may be seen in Strabo, book 
 15, remarked the disapprobation which the Judean sages ex- 
 pressed of the conduct of Calanus; for it was by no means 
 agreeable to their tenets, that any one, through impatience, 
 should quit his post in life. In the 5th book of Quintus 
 Custius there is an expression of King Darius to this effect, 
 that he had rather die by another's guilty hand than by his 
 own. In the same manner the Hebrews call death a release, 
 or dismission, as may be seen not only in the Gospel of St. 
 Luke, chap. 2, verse 19, but in the Greek version of the Old 
 Testament, Gen. 15 verse 2 and Numbers 20, towards the 
 conclusion, and the same way of speaking was used by the 
 Greeks. Plutarch, in speaking of consolation, calls death 
 the time when God shall relieve us from our post." 
 
 The attitude which the teachings of antiquity, and espe- 
 cially of the Stoics on the one hand and of almost all modern 
 
120 PENAL LAWS 
 
 moralists, (for Christianity now colors all modern moral 
 philosophy,) on the other, in regard to their conception of 
 death, appears very plainly in their view of suicide. For this 
 modern view of it among us we are indebted to the great 
 Roman Catholic Church. 
 
 The doctrine of future rewards and punishments which is 
 so prominent in the New Testament and the Koran, is the 
 foundation upon which it was mainly built in religion. 
 
 It is true that among the early Christians there prevailed 
 a sort of ambition for martyrdom to such an extent that it 
 sometimes became suicide. Tertulian, one of the early church 
 fathers who lived in the second century, said : " The blood 
 of the martyrs is the seed of the church." In that age many 
 dying men deplored the natural death, which robbed them of 
 the honors of martyrdom. It was carried to such an extent 
 that later on the heads of the church condemned it as the 
 fruit of misguided zeal, but the people considered it with 
 reverence. 
 
 A council of Aries, about the middle of the fifth century, 
 having pronounced suicide to be the effect of " diabolical in- 
 spiration," a council of Braga in the following century or- 
 dained that no religious rites should be celebrated at the 
 tomb of a suicide, and that no masses should be said for his 
 soul. 
 
 It was ordained in the sixth century by the Canon law tha 
 no commemoration should be made in the Eucharist for such 
 as destroyed themselves, neither should their bodies be car- 
 ried out with palms nor have the usual service read over 
 them. Suicide and attempting suicide were to be treated as 
 infamous, and as far as possible amenable to penal discipline, 
 and a suicide is considered as having " died in mortal sin," 
 and could never enter the Paradise of the blest. 
 
 And these provisions, which were repeated by later coun- 
 cils, were gradually introduced with the Canon law into the 
 laws of the barbarian and of Charlemagne. Thus they were 
 spread all over Europe. 
 
 About the middle of the thirteenth century St. Lewis IX., 
 king of France, and an ardent crusader, originated confis- 
 cation of property to the heads of the church, and the corpse 
 
OF SUICIDE. 121 
 
 was subjected to gross and various outrages. In some coun- 
 tries it could only be removed from the house through a per- 
 foration specially made for the occasion in the wall ; it was 
 dragged upon a sledge or hurdle through the streets, hungup 
 with the head downwards, and at last thrown into the public 
 sewer, or burnt, or buried in the sand below high-water mark, 
 or transfixed by a stake on the public highway, at cross-roads 
 in the same manner as that of an executed criminal. 
 
 The ferocious laws here recounted contrast remarkably 
 with a law in the Capitularies of Charlemagne, which pro- 
 vides that though mass may not be celebrated for a suicide, 
 any person may, through charity, cause a prayer to be offered 
 up for his soul. 
 
 The reasons for this great change which the Canon law 
 made were not merely ethical and spiritual but political. There 
 could be no patient endurance in the state, it was insisted, 
 unless there was patient edurance in the citizen. If the peo- 
 ple should resort to suicide to escape trouble, so would the 
 state, and all social order and safety would be at an end. 
 
 During the whole period of the supremacy of the Church 
 of Rome for many centuries the act was more rare than be- 
 fore or since. The influence of Catholicism was seconded by 
 Mohammedanism which on this, as on many other points, its 
 teachings are similar to those of the Christian Church, and 
 even intensified in this case — for suicide, which is never ex- 
 pressly condemned in the Bible, is more than once forbidden 
 in the Koran,* and the Christian duty of resignation was ex- 
 aggerated by the Moslem into a complete fatalism similar to 
 the Calvinistic doctrine of predestination. Under the gov- 
 ernment and influence of Catholicism and Mohammedanism 
 suicide, during many centuries, almost absolutely ceased in 
 all the civilized, active and progressive part of mankind, f 
 
 * It was contended by some of the leaders of the church that suicide was pro- 
 hibited by the commandment, "Thou shalt not kill." St. Augustine argued 
 that he who kills himself kills a man. The Koran also says, "Thou shalt not take 
 the life thou cannot give." 
 
 t It should be remembered that about this time monastic life was very prevalent 
 and its solitude was undoubtedly resorted to in many cases as a substitute for 
 suicide. If despairing and suffering humanity was thus cut off from the clouds 
 and storms of life, they also lost its brightness and the sunshine which is derived 
 from social life. 
 
122 PENAL LAWS 
 
 The Roman Catholic religion was established by law in all 
 the countries in Europe, and the Canon laws had the same 
 force and effect as any other laws. 
 
 In all governments where Church and State are united the 
 ordinances of the Church are always carried out and enforced 
 by the State power. 
 
 Where Church and State are separated the rules of the 
 church are permitted to have their full force unless there is 
 a positive statute that may effect them. 
 
 In Russia, where the Greek Church is the established 
 church its priests class as suicides all persons who kill them- 
 selves by the excessive use of stimulants. * 
 
 The position which the Roman Catholic Church and its 
 propagators took in its early days and in its strength and 
 vigor, is still maintained by it, and its two main branches, the 
 Greek Churcli and the Protestant Episcopal Church. In all 
 these churches clergymen and others are prohibited, under 
 penalty of excommunication and suspension, reading the 
 burial service and rites over the body of any person who has 
 laid violent hands on himself, whether that of a communicant 
 or not. But this rule does not apply to insane or weak- 
 minded persons ; and clergymen and priests argue that no 
 sound-minded person will commit suicide, or at all events 
 there is a doubt about it, and they, in Christian charity, give 
 the deceased the benefit of such doubt, so that the Church 
 prohibition practically amounts to nothing. A refusal toper- 
 form the burial rites of those churches or any other church 
 over the body of a suicide for that reason is almost unknown 
 in the United States. 
 
 The statute law in England prohibits any funeral rites of 
 any church in all cases. 
 
 The old Germanic law adopted the same principle as the 
 Ecclesiastical law. 
 
 Some of the present German codes are silent on the subject, 
 to wit. : the Bavarian and Saxon. 
 
 The Austrian code only provides that the body of a suicide 
 
 * In 1881 this ordinance of the Church in Russia was changed so that they 
 are not now classed as suicides. 
 
OF SUICIDE. 123 
 
 shall be buried by the officers of justice, but not in a church 
 yard or other place of common interment. 
 
 The Prussian code forbids all mutilation of the dead body 
 of a suicide under ordinary circumstances, but declares that 
 it shall be buried without any marks of respect otherwise 
 suitable to the rank of the deceased, and it directs that if any 
 sentence has been pronounced, it shall, as far as it is feasible, be 
 executed, on the dead body, due regard being had to decency 
 and propriety. The body of a criminal who commits suicide 
 to escape the execution of a sentence pronounced against him 
 is to be buried at night by the common executioner at the 
 usual place of execution for criminals 
 
 France has no provision in her penal codes for the punish- 
 ment of suicides, deeming the Church penalties sufficient 
 punishment to deter them. Experience shows that it appar- 
 ently has little effect in that direction. 
 
 In the Reign of Terror, in France, a law was made ordain- 
 ing that the suicide of an accused person should entail the 
 same consequences as his condemnation in regard to the dis- 
 position of the body and the confiscation of property. 
 
 While Bonaparte was First Consul in 1802, a grenadier of the 
 French consular guard was disappointed in love and commit- 
 ted suicide by shooting himself. When Bonaparte heard of 
 the transaction, in order to prevent such a cowardly practice 
 from spreading among the troops, he directed the publication 
 of the following : 
 
 " The grenadier, Grablin, has committed suicide from a 
 disappointment in love He was in other respects a worthy 
 man. This is the second event of the kind that has happened 
 in this corps within a month. The First Consul directs that 
 it shall be notified in the order of the day Guard, that the 
 soldier ought to know how to overcome the grief and melan- 
 choly of his passions ; that there is as much true courage in 
 bearing mental affliction manfully as in remaining unmoved 
 under the fire of a battery. To abandon oneself to grief 
 without resisting, and to kill oneself in order to escape from 
 it, is like abandoning the field of battle before being con- 
 quered." 
 
 We have before seen that the Roman Emperor, Hadrian, 
 assimulated the suicide of a soldier to desertion. 
 
124 PENAL LAWS 
 
 In Denmark, the only penalty is that the body is not al- 
 lowed to be .buried in consecrated grounds or churchyards. 
 
 In Norway, the only penalty is that the body is not to be 
 buried in consecrated ground, but this does not apply to a 
 non compus mentis, and therefore the law is practically of no 
 effect. 
 
 Sweden, like many other European countries, has no statute 
 law on the subject of suicide. 
 
 In many other European states, where there is no law on 
 the subject, the practice is to treat the body the same as that 
 of an executed criminal. This arose in the Church and un- 
 der the Canon law when the Church of Rome was the pre- 
 vailing religion throughout Europe, and was united with the 
 State, and its ordinances were enforced as State laws. 
 
 The immorality of suicide was discussed at considerable 
 length by Abelard in the eleventh century, and by St. Thomas 
 Aquinas in the thirteenth century. 
 
 Dante and Dryden have devoted some fine lines to painting 
 the condition of suicides in hell, where they are also fre- 
 quently represented on the bas reliefs of cathedrals. 
 
 In the romances of chivalry, however, this mode of death 
 is frequently portrayed without horror, being regarded in the 
 heroic light which prevailed in that age. 
 
 When the unhappy Indians in the South American conti- 
 nent were reduced to slavery and treated with atrocious 
 cruelty by their conquerors, they killed themselves in great 
 numbers, until the. Spaniards, in order to deter them, declared 
 that their masters also would commit suicide and would pur- 
 sue their victims into the world of spirits. Thus the poor un- 
 fortunate slaves had no hope of rest ; they feared the cruelty 
 of their masters in the next world. This deterred them from 
 suicide. 
 
 In Cuba, the negroes committed suicide in large numbers, 
 under a religious delusion, believing that they would be re- 
 stored to life at the end of three days. It was only suppressed 
 by the Governor-General ordering the heads exposed in pub- 
 lic for one month, and their bodies burned and their ashes 
 publicly scattered to the winds. (Ro'one de Paris, 29 April, 
 .845.) 
 
OF SUICIDE. 125 
 
 The West African negroes sometimes commit suicide when 
 in distant slavery, believing that they will revive again in 
 their own native land, free from toil and their masters lashes. 
 
 Among the North American Indians it was mostly among 
 the squaws, and was by hanging on a tree. They had a tra- 
 dition that in the spirit land they were forced to drag the fatal 
 tree forever, and hence they would always select the smallest 
 ■one which would answer the purpose. 
 
 Many centuries previous to the Reformation in England, 
 the Canon law was adopted into the statutes of England. 
 And as a further punishment, confiscation of lands and goods 
 followed, this being regarded in the nature of a compen- 
 sation to the State for its loss of a human being. This latter 
 penalty is said, by Bracton, to have been adopted from the 
 Danes, where it had previously existed. It may have been 
 derived from the Canon law and the Roman civil law, in both 
 of which it had been used many centuries before, as we have 
 seen. The English statute also directed that the remains 
 should be buried in the highway at cross-roads, with a stake 
 driven through the body. 
 
 This burial at the cross-roads and without religious rites, 
 was to give as strong an impression as possible of a heathen 
 burial, and also of a criminal act, for the heathen Teutons 
 there executed their caiminals by sacrificing them to the gods 
 on their altars, which were mostly at the junction of the 
 cross-roads and the body was pinned to the earth by an un- 
 painted stake, and passers-by would cast a stone at it. 
 
 This mode of disposing of the body of suicides was an 
 ancient custom brought into England by the Saxons and did 
 not prevail in all parts of England. Christian burial was de- 
 nied suicides in all parts of England, under the Canon law. 
 When they were buried in the parish churchyard they were 
 placed in the most obscure parts of it. 
 
 In many churchyards may be seen a row of graves on the 
 extreme verge of the north side of the grave yard, apart from 
 that in which the bodies of the inhabitants in general are de- 
 posited. Some of the graves do not lie east and west as do 
 those who have Christian burial. These are occupied by the 
 bodies of still-born infants, suicides and excommunicated 
 
126 PENAL LAWS 
 
 persons, and those who it is termed are "buried out of the 
 sanctuary," because they are not entitled to the church rites- 
 of burial. 
 
 The first grave-digger in Hamlet, when he asked if the 
 grave should be made "straight," was evidently accustomed' 
 to that part of England where a suicide's grave was not made 
 east and west, as the church stood and as other graves run, 
 but was to be made " crooked 1 / 1 or not parallel to them. 
 
 Forfeitures for felonies did not exist in England until after 
 the Norman Conquest. Suicide in common with many other 
 felonies had the penalty of forfeiture of goods and chattels 
 without any special mention. 
 
 All his goods, and chattels, and leases of real estate, were 
 forfeited to the crown. The real estate (excepting leases), 
 was not forfeited in such case, and his inheritance was not 
 forfeited as to other property. This offence was never at- 
 tended with corruption of blood. 
 
 In this as we'll as in other felonies at common law the 
 offenders must be of the iige of discretion and of sound mind, 
 and therefore an infant killing himself under the age of dis- 
 cretion, or a lunatic during his lunacy, is not regarded as a 
 felo de se, so as to work a forfeiture of his property. But the 
 disposition of the remains is the same in all cases. 
 
 This was only carried out when the coroner's jury decided 
 the question of the sanity of the offender in the negative 
 This continued until 1823, when by statute (4 George IV. 
 chap. 52) the body is required to be taken to the churchyard 
 or other burial ground of the parish or place in which the re- 
 maiiis are found, and is to be buried by the coroner, if found 
 sane, within twenty-four hours after the finding, and such in- 
 terment must take place at night between the hours of 9 and 
 12 o'clock. The rights of Christian burial are not allowed by 
 law in any case of suicide when the coroner's jury decide the 
 deceased to have been sane when the act was committed. 
 This is seldom done, however, and the church officer, the 
 parson, is bound by the verdict and must perform the burial 
 service according to the usual form as in other cases. Church- 
 men of the Protestant Episcopal Church are very much dis- 
 pleased with this, for by the 68th canon and the rubric in the 
 
OF SUICIDE. 127 
 
 IBook of Common Prayer such persons are not allowed to be 
 Juried by the parson according to the forms of the Estab- 
 lished Church. The term Christian burial, as used in the 
 statute, undoubtedly means any religious ceremony at the 
 grave, and is not confined to the Episcopal Church, and the 
 Roman Catholic Church, for they are the only Christian 
 ■churches that prescribe the burial service which their priests 
 must follow. 
 
 Churchmen contend that in ali cases of suicide the de- 
 ceased should be denied the burial rites of the church, and 
 they ought not to be bound by the coroners jury and com- 
 pelled to perform the rites in such cases. -^—Wheatley on Book 
 -of Common Prayer. 
 
 Ceremonies over the body were not allowed, but they might 
 be performed by the relatives and friends attheir own houses, 
 but without the body and without a priest of the Established 
 Church. 
 
 According to the canons of the Established Church of Eng- 
 land, no clergyman, only those of the Established Church, are 
 allowed to perform funeral rites and ceremonies in a church 
 or consecrated churchyard or burial ground belonging to the 
 Established Church. 
 
 By the canon law Christian burial in consecrated ground 
 and with the religious services prescribed by the Roman 
 Catholic Church was denied to all who were not Christians, to 
 excommunicated persons, suicides, criminals, usurers, schis- 
 matics, heretics, and even unbaptized children of Christian 
 parents. The eucharist was celebrated at the grave as one of 
 the rites as early as the fourth century, but it has been gen- 
 erally abandoned. 
 
 The part of the canon law against suicides was taken from 
 the action of the first council of Braga, which occurred many 
 years before the canon law noticed it. 
 
 The first ecclesiastical rule which occureth as to suicide is 
 the 34th canon of the first council of Braga, in the year 563, 
 which forbids any burial service for those qui violentan sili 
 ipsis infermet mortem. But in Wilkin's councils the 5th chap- 
 ter of the 2d book of the Penetential of Egbert, Archbishop 
 or York, written about the year A. D. 750 (which chapter is 
 
128 PENAL LAWS 
 
 plainly taken from the canon of Braga), adds this limitation, 
 " If they do it by the instigation of the devil." And at p. 232 
 the 15th of the canons published in King Edgar's time, about 
 the year 960, adds a further limitation, " If they do it volun- 
 tarily by the instigation of the devil." (1 Burns, Eccles. Law, 
 265.) It will be observed that this canon law of Egbert was in. 
 the time of the Saxon Heptarchy, but it, nevertheless, applied 
 to all of England. 
 
 The Decretum of Gratian inserting the canon of Braga 
 adds to it " voluntaire." (Do.) 
 
 Wheatley on Common Prayer, says self-destruction makes 
 no exception as to the use of the forms of burial used by the 
 Established Church. 
 
 The exact language of the canons of Edgar, as translated 
 
 by Wilkins, is as lollows : 
 
 "Concerning those who by any fault inflict death upon 
 themselves, let there be no commemoration of them in the 
 oblation, as likewise for them who are punished for their 
 crimes, nor shall their corpses be carried unto the grave with 
 palms." 
 
 "If any shall voluntarily kill himself by arms, or by any insti- 
 gation of the devil, it is not permitted that for such a person 
 any masses be sung, nor shall his body be put into the ground 
 with any singing of a psalm, nor shall he be buried in pure 
 sepulchre." 
 
 Canons Edgar, 1 Wilk., 225, 232. 
 
 Johnson, A. D. 740, No. 96, and 963, No. 24. 
 
 1 Burns, Ecc. Law, 260. 
 
 After the Reformation in England, on the revision of the 
 Canons of the Protestant Episcopal Church, in 1603, by the 
 Hampton Court Conferences, the substance of the 68th 
 canon became and is now known as the 68th canon of the 
 latter church. The rubric, which is in the burial office in the 
 English Book of Common Prayer, was not drawn up until 
 i66r, and was deemed as explanatory of the ancient canon 
 law and of the previous usage in England, and greatly modi- 
 fied and limited the class of persons to whom it applied in 
 the canon law. Before the rubrics of 1661, the prohibition 
 extended to all persons who had not received the holv sacra- 
 
OF SUICIDE. 129 
 
 ment, at least at Easter, or such as were killed in duels, tilts 
 or tournaments, or convicted of infamous crimes, but did not 
 exclude unbaptized persons and suicides. 
 
 The Savoy Conference, in 1662, made the last revision of 
 the Book of Common Prayer as it is now used by the Protes- 
 tant Episcopal Church in England, and the rubrics as they 
 were called (because printed in red ink) over many of the 
 prayers, and in other parts of it informing the clergy as well 
 as the laymen how and what to do on particular occasions. 
 These were derived from the canons in most cases, and in 
 some instances they conflicted with the canons, and in other 
 cases did not go so far as the canons. When the law for the 
 conformity of Christian worship was passed in 1662, compell- 
 ing its use in the form it then was and that it should be used 
 as stated in the rubrics, the English Courts held that in all 
 cases of conflict between the rubrics and the canons that the 
 rubrics should prevail and that the canons were only of force 
 so far as the statutes and common law permitted them (Mastin 
 v. Escott, 2 Curteis, 760). 
 
 As to how far the canon law is in force in England it has 
 been stated by authority that the canons of 1603, as well as 
 the acts of Parliament after the reformation, also constitute 
 a portion of that law binding upon the clergy, but only bind- 
 ing upon the laity where admitted by long custom or express 
 recognition of the tribunals of the common law (Lord Hard- 
 wicke in Middleton v. Croft, Strange Rep., 1056 ; see also 
 Mastin v. Escott and Kemp v, Wickes, 3 Philli, 276). 
 
 The duty cast upon the clergyman by his office is prescribed 
 by the sixty-eighth canon, which provides that no minister 
 shall refuse or delay to bury any corpse that is brought to the 
 church or churchyard convenient, warning being given him 
 thereof, in such manner and form as is prescribed in the 
 Book of Common Prayer. And if he should refuse to do so, 
 except the deceased were within the prohibited class speci- 
 fied in the rubric, he shall be suspended by the bishop of the 
 diocese from his ministry by the space of three months. 
 
 As the rubric now stands tlfere are only three classes of 
 persons who are within the prohibition. It reads as follows : 
 " Here it is to be noted that the office ensuing is not to be 
 
130 PENAL LAWS 
 
 used for any that die unbaptized, or excommunicated, or have 
 laid violent hands upon themselves." 
 
 If a clergyman should disregard this rubric and perform 
 the burial office over the prohibited classes, he would be lia- 
 ble to trial and discipline by an Ecclesiastical Court for dis- 
 regarding the laws of the church. The result might be sus- 
 pension for a definite period or the deprivation of his orders. 
 
 The committing of a crime would not render a person lia- 
 ble to be excommunicated even when Church and State were 
 united. There wei;e ecclesiastical crimes only which would 
 render a person liable to be excommunicated, and mere state 
 offences were not regarded as such by the church when they 
 did not affect church matters. (See Selden's Table Talk.) 
 
 In the ecclesiastical law a felo de se is regarded the same as 
 an excommunicated person 
 
 To the rigid rule of the church there was then, as there still 
 is no exceptions, but the law made the coroner's inquest bind- 
 ing upon the church. The first grave-digger in Hamlet be- 
 lieved that if Ophelia had not been a gentlewoman she would 
 not have Christian burial. The second grave-digger promptly 
 answers that she is, because the "crowner " (coronor) has set 
 upon her and finds that she is to have Christian burial. 
 
 Shakespeare has thus accurately stated the laws of the 
 Church and of the Statutes in England, at the time he wrote, 
 and not the laws of Denmark, in Hamlet's time. 
 
 Hamlet, King of Denmark, lived about A.D. 700 and Chris- 
 tianity was not introduced in Denmark until about A.D. 827, 
 by Harold. So the laws of the Christian Church of England 
 were referred to, and not the laws of Denmark, at the time of 
 Prince Hamlet. 
 
 A sample of how suicide was regarded in law and morals 
 about the time of the Reformation in England appears by the 
 argument of counsel in the case of Hales vs. Pettit, reported 
 in Plowden, page 253 ; it was argued that: 
 
 " It is an offence against Nature, against God, against the 
 King. (1.) Against Nature, because it is contrary to the rules 
 of self-preservation, which is the principle of nature ; for 
 everything living does, by instinct of nature, defend itself 
 from destruction, and then to destroy oneself is contrary to 
 
OF SUICIDE. 131 
 
 nature and a thing most terrible. (2.) Against God, in that 
 H is a breach of His commandment, 'Thou shalt not kill,' and 
 to kill himself by which act he kills in presumption his own 
 soul, is a greater offence than to kill another. (3.) Against 
 the King, in that he has hereby lost one of his mystical mem- 
 bers ; also, he has offended the King in giving such an exam- 
 ple to his subjects, and it belongs to the King, who has the 
 government of the people to take care that no evil example 
 be given them; and an evil example is an offence against 
 him." Hales vs. Pettit,'Mich. Term 4 and 5, Eliz. 1562 in C. 
 P. Plowden, 253. 
 
 The reply to this argument is equally as ingenious and sub- 
 tle. So much so Shakespeare, in Hamlet, Act 5, Scene 1, 
 puts the same logic in the second grave-digger's remarks 
 when the fair and unfortunate Ophelia's grave is to be 
 made. He says : 
 
 ist Grave. — Is she to be buried in christian burial that 
 wilfully seeks her own salvation ? 
 
 2D Grave. — I tell thee she is ; therefore make her grave 
 straight ; the crowner hath set on her, and finds it christian 
 burial. 
 
 ist Grave. — -How can that be, unless she drowned herself 
 in her own defense? 
 
 2D Grave.— Why, 'tis found so. 
 
 ist Grave. — It must be se offendendo ; it cannot be else. For 
 here lies the point : if I drown myself wittingly, it argues an 
 act ; and an act hath three branches ; it is, to act, to do, to 
 perform. Argal, she drowned herself wittingly. 
 
 2D Grave. — Nay, but hear you, goodman delver. 
 
 ist Grave. — Give me leave. Here lies the water ; good >' 
 here stands the man ; good. If the man go to this water, and 
 drown himself, it is, will he, nill he, he goes: mark you that: 
 but, if the water come to him, and drown him, he drowns not 
 himself. Argal, he that is not guilty of his own death, short- 
 ens not his own life. 
 
 2D Grave. — But is this law? 
 
 ist Grave. — Ay, marry is't, crowner's 'quest law. 
 
 2D Grave. — Will you ha' the truth on't ? If this had not 
 been a gentlewoman, she should have been buried out of 
 christian burial. 
 
132 PENAL LAWS 
 
 ist Grave. — Why, there thou say'st ; and the more pity, 
 that great folks should have countenance in this world to 
 drown or hang themselves, more than their even Christian. 
 Come, my spade." 
 
 The grave was to be made "straight," that is, it was to be 
 made East and West, for Christian burial, but in cases of 
 those who had not Christian burial the grave was North and 
 South, as before stated. 
 
 It is evident that the burial is represented as taking place 
 in Denmark, as the King and Queen and Courtiers were pres- 
 ent, but still the burial was according to the laws of England 
 and the Established Episcopal Church, and not the Roman 
 Catholic burial rites, as they were not allowed to be 
 used in any parish churchyard in England after the Reforma 
 tion and the establishment of the Episcopal Church and the 
 rites prescribed by the Book of Common Prayer. For several 
 centuries following the Reformation In England the Estab- 
 lished Church was allowed to go beyond the requirements of 
 the Book of Common Prayer in some particulars, and retain 
 some of the old customs, and in none more so than in the 
 burial rites. 
 
 We have before seen that the canons of King Edgar prohib- 
 ited, at the burial of suicides, the carrying of palms by the 
 funeral cortege, as was then the usual custom, and also the 
 singing of psalms at the burial, and the singing of masses for 
 the soul of a suicide. 
 
 In Shakespeare's time it is probable that in England the 
 
 carrying of palms was customary at funerals, and although 
 
 the law of England prohibited masses for the soul in all cases, 
 
 it allowed but did not require a requiem at the grave after 
 
 burial, and also allowed prayers for the souls of the dead. In 
 
 Hamlet it appears that although the burial was according to 
 
 the law of England, yet the Church could and did abridge 
 
 the usual rites in cases of suicides. The absence of palms and 
 
 some other appearances in the funeral cortege of Ophelia is 
 
 thus noted : 
 
 " Here comes the King, the Queen, the Courtiers. 
 Who is this they follow, 
 And with such maimed rites, this do they betoken ? 
 The corpse they follow did with desperate hand, 
 Foredo it's own life." 
 
OT SXTICIDE. 133 
 
 In the same act in Hamlet the parish priest is made to say 
 that Ophelia, upon account of the manner of her death, should 
 mot have the full rites of Christian burial. He said : 
 
 ' ' Her death was doubtful ; 
 m And but that great command oversways the order 
 
 She should in ground unsanctified have lodged, 
 Until the last Trump ; for charitable prayers 
 Shards, flints and pebbles should be thrown upon her." 
 
 The "great command 1 ' referred to was the statute law of 
 England when the coroner found she was insane, and there- 
 fore entitled to Christian burial. 
 
 The last line above quoted fully describes the burial of sui- 
 cides in that part of England where the ancient custom pre- 
 vailed of burying at the cross-roads with a stake driven 
 through the body, to mark the spot, and passers-by throw 
 flints and stones upon it. 
 
 But the strict letter of the law still allowed the parish priest 
 to abridge the usual burial service in such cases. Ophelia 
 had the extent of the bell and burial rites of the church, but 
 the priest refused to have a requiem sung for her soul after 
 the burial. When asked by Laertes in suprise if no more 
 was to be done after the burial, he indignantly said : 
 
 "No more be done? 
 We should profane the service of the dead 
 To sing a requiem and such rest to her 
 As to peace-parled souls." 
 
 In the American Book of Common Prayer, the prohibition of 
 the use of the burial office is that the forms are not to be used by 
 any minister for any unbaptized adults, any who die excom- 
 municated or who have laid violent hands upon themselves 
 (in the English it extends to unbaptized infants). 
 
 The minister is subject to the same penalty as in England. 
 
 In the United States the canon law as amended is in full 
 force without any express statutory interference. 
 
 No part of the property is vested in the crown before the 
 self-murder is found by some inquisition. If the body can be 
 found all such inquisitions must be by the coroner super visum 
 corporis, and an inquisition so taken could not formerly be 
 traversable in the Court of King's Bench. If the body cannot 
 be found the inquiry may be by a Justice of the Peace the 
 
1^4 PENAL LAWS' 
 
 same as all other felonies, or in the Court of King's Bench, if 
 it sits in the county where the act was committed, and such 
 inquisitions are traversable by the executor, heir, etc. 
 
 Coroners' Juries generally carried their views so far as to> 
 decide that the very act of suicide is an evidence of insanity, 
 and tliat therefore it worked no forfeiture to the crown. 
 Bentham cites this as an example of the uselessness of official 
 oaths. 
 
 About the time of the Commonwealth it was very seldom 
 that a suicide was pronounced insane by a coroner's jury. It 
 is reported that out of seventy-four cases only three were 
 found insane. 
 
 In 1693 a law was enacted allowing the findings of a coron- 
 ers's jury to be reviewed by the Court of King Bench by the 
 writ of certierari and the inquisition may be quashed as insuffi- 
 cient. * 
 
 In the Catholic Church the confessional, undoubtedlv, al- 
 ways has had a powerful influence in preventing the violation 
 of the laws and ordinances of the church. Suicide is yet 
 much less frequent among members of the Catholic Church 
 than it is amjng other church members. It is proportion- 
 ately less among Jews, however. 
 
 It has been computed, from statistics returned in certain 
 provinces of Austria and Germany, that in a population of 
 1,000,000 the proportion of suicides between the Jews and the 
 mixed white races were as one to four. 
 
 It should be remembered that when the Roman Catholic 
 Church was in its supremacy in England, which was for many 
 centuries, every State officer must be a member of that 
 Church, at least in many cases, not of lower rank than a 
 priest of that church. This was continued by the Protestant 
 Episcopal Church until a repeal of the Corporation and Test 
 acts, as they were called, which required it. 
 
 In Scotland there is a forfeiture of personal property only- 
 
 On the principal that the ethical precepts of the English 
 Ecclesiastical law are incorporated in the common law of the 
 several United States, so far as the same is applicable, suicide 
 
 * In the year 1870, by statute 33 and 34, Viet., chap. 23, a verdict of suicide 
 does not now work forfeiture of any estate or property. 
 
'OF SUICIDE. 135 
 
 smd the attempt at suicide are to be viewed as common law 
 "offences with us, and hence are felonies. 
 
 The usages of the English law have never been carried out 
 in this country against the body or estate of the unfortunate 
 Jelo de se since Colonial times. 
 
 Forfeiture in cases of suicide ate expressly abolished by 
 statute in New York. (3 R. S., p. 988, sec. 32.) 
 
 In the United States the law does not make any distinction 
 or difference in regard to the burial or disposition of the 
 bodies of suicides and those whose death is caused by disease 
 or accident. 
 
 In 1879, by chap. 33, § 38 of 42 and 43 Viet., for an attempt 
 at suicide in the British army, an officer will be court-mar- 
 tiald and cashierd, and a private will be imprisoned. 
 
 AIDING AND ABETTING SUICIDE. 
 
 When self- killing ceases to be entirely voluntary, in other 
 words, when it is executed under another's compulsion, then, 
 at common law, that other is guilty of homicide, though the 
 deceased himself struck the fatal blow 
 
 Under the New York Revised Statutes (2 R. S., 661, § 7) 
 assisting another in committing self-murder is declared to be 
 manslaughter in the first degree. 
 
 At common law, if a man encourages another to murder 
 himself, and he is present abetting him while he does so, such 
 a man is guilty of murder as principal. It is otherwise, how- 
 ever, at common law when the suicide is consummated in the 
 ■absence of the adviser. In such cases, as the adviser is onlyan 
 accessory before the fact, he cannot, according to the old tech- 
 nical rule of law, be convicted until after the conviction 
 of the principal, who, being on this hypothesis dead, is out of 
 the reach of legal process. This, however, has been in many 
 of the States corrected by statute, and where it is not, the 
 advising another to commit suicide, who afterwards does so, 
 is indictable at common law as a misdemeanor. 
 
 A civil action for damages against a person aiding and 
 abetting another in suicide will nndoubtedly lie in favor of 
 any party who is injured thereby. 
 
136 PENAL LAWS' 
 
 Under the Anglo-Saxon laws a person present at the death 
 of a man who was murdered or had committed suicide was re- 
 garded as particeps criminis, and as such was liable to a fine. 
 Every man's life had its value called, a were or capitis estimation 
 This had been varied at different periods, in the time of King 
 Athelstan, in A.D. 926, a law was made to settle the were of 
 every order of persons in the State, If the fines were not 
 paid the punishment was death. 
 
 In some countries accessories to suicide are punishable, 
 even though suicide itself is not a penal offense. 
 
 Among the German States, Brunswick, Thuringia, Bader^. 
 and Saxony alone punish those who are accessories to suicide. 
 The penal code of France has no penalty against accessories 
 in such cases. The penal code of India has a penalty. 
 
 The general principal' of law r however, prevails in all civil- 
 ized countries that when any act is declared and punished as 
 a crime, aiding and abetting another in it is also punishable. 
 This was so under the Roman civil law and the canon law as 
 well as at common law. 
 
 The law against this crime is obsolete from disuse because 
 it is never necessary to enforce it, the natural instincts of the 
 human heart being sufficient to prevent the frequency of such 
 crimes. 
 
 In misdemeanors there are no accessories, but all the guilty 
 actors, whether present or absent at the commission of the 
 offense are principals, and should be indicted, and are pun- 
 ishable as such. (People vs. Enim, 4, Denio 129.) 
 
 SUICIDE AND TESTIMENTARY CAPACITY. 
 
 In regard to wills made just before committing suicide the 
 prevalent doctrine in England and in this country is that the 
 act of self-destruction may not necessarily imply insanity so 
 as to avoid the will ; that if the will is a rational act rationally 
 done, the sanity of the testator is established, and the charac- 
 ter of the will and its consistency with the character of the 
 testator is the sole evidence of rationality at the time of its 
 execution. 
 
OF SUICIDE. 137 
 
 We have before seen that by the Roman law the will of a 
 suicide could be admitted to probate. 
 
 Under the English common law previous to the statute 
 abolishing forfeiture the will of a felo de se is void, both as to 
 the appointment of an executor and also with respect to any 
 legacy or bequest of goods, for they are forfeited by the very 
 act and manner of his death ; but any devise of land made by 
 him is good, as that is not subjected to any forfeiture. The 
 will of a felo de se is of force against the testator andhis repre- 
 sentatives and all other persons whatsoever ; so if the king or 
 lord pardons the forfeiture the will is suffered to take effect. 
 
 SUICIDE AND LIFE INSURANCE. 
 
 It is an established principle of law that an insurance 
 against the consequences of an illegal act is, like a contract 
 to do an illegal act, a void contract as against public policy, 
 and we have before seen that suicide is a crime at common 
 law, therefore no insurance can be recovered in such cases, 
 unless the party is proved to be insane at the time of the act, 
 then the insurance is valid and can be recovered. In order to 
 avoid a recovery in all cases of suicide, a clause has been in- 
 serted in many policies conditioned to make it void "if the 
 assured shall die by his own hand or act," or words to that 
 effect. 
 
 The first case that was decided on the question of suicide 
 and its effect on a life insuranc policy containing such a clause 
 was that of Breasted vs. The Farmers' Loan and Trust Com- 
 pany, in the Supreme Court of the ' State of New York (re- 
 ported 4, Hill 74) in 1843. The policy contained a clause of 
 forfeiture in case the insured died by his own hand. It was 
 held in that case that the insanity of the iusured at the time 
 of his death by suicide was no defence. This decision was 
 sustained by the Court of Appeals when it came up ten years 
 afterwards (reported in 8 N. Y. 303) by five judges against 
 three. On this appeal the case of Borradaille vs. Hunter 
 (44 Eng. C. L. Reps. 336, which was the first English case on 
 a similar question and was decided in 1843), was cited and ap- 
 proved 
 
138 PENAL LAWS 
 
 In England it is the law at present, under this particular 
 form of a policy, that in every case of suicide, whatever may 
 have been the mental condition, if the policy containing the 
 clause which makes it void "if the assured shall die by his 
 own hand or act," or words to that effect, the policy becomes 
 void in such case. (In Clift vs. Schwabe 54 Eng. C. L., 
 
 P- 437-) 
 
 The principle of the decisions in the English cases is 
 founded upon the right of contracting parties to make any 
 exception they may agree upon at the time of the issuing of 
 the policy, and that it must be strictly construed in favor of 
 public policy. 
 
 In Germany and throughout Continental Europe (with the 
 exception of France — in the latter the Courts have given con- 
 flicting decisions as to the construction of the conditions 
 against suicide), the Courts coincide with the views expressed 
 in the English decisions and hold the policy void in such 
 cases. There have been many conflicting decisions in Amer- 
 ican Courts on this same question, but they have not, any of 
 them, gone so far as the English cases. In the United States 
 Supreme Court (Life Ins. Co. vs. Terry, 15 Wallace, 580), in a 
 case where the policy contained a condition " If the said per- 
 son whose life is hereby insured shall die by his own hand 
 this policy shall be null and void," and the insured died from 
 poison voluntarily administered by himself, the Court says : 
 
 "We hold the rule on the question before us to be this. If 
 the assured, being in the possession of his ordinary reasoning 
 faculties, from anger, pride, jealousy, or a desire to escape 
 from the ills of life, intentionally takes his own life, the pro- 
 viso attaches and there can be no recovery. If the death is 
 caused by the voluntary act of the assured, he knowing and 
 intending that his death shall be the result of this act, but 
 when his reasoning faculties are so far impaired that he is not 
 able to understand the moral character of the general nature, 
 consequences and effect of the act he is about to commit, or 
 when he is impelled thereto by an insane impulse which he 
 has not the power to resist, such death is not within the con- 
 templation of the parties to the contract, and the insurer is 
 liable." 
 
OF SUICIDE. 
 
 139 
 
 This case was explained by the N. Y. Court of Appeals in 
 Van Zandt vs. Mutual Benefit Life Insurance Company (55 
 N. Y. 169). 
 
 The presumption of law is, in all cases, that death was 
 caused by accident, as in drowning, poisoning, &c. or in the 
 natural way when no cause of death can be discovered. (Mai- 
 lory vs. Trav. Ins, Co., 47 N. Y., p. 54.) 
 
 The burden of proving that the insured died by his own 
 hand is on the insurer. This proved, the burden is thrown on 
 the representatives of the insured to show that he did not 
 commit the act of self destruction, with the knowledge that 
 it would, and the intent that it should, result in death. 
 
 (See proper charge to the jury stated fn Van Zandt vs. 
 Mutual Benefit Ins. Co., 55 N. Y. 169.) 
 
 A person is in law presumed to be sane, and to know the 
 consequences of his own acts, until the contrary appears. 
 
 When the question of suicide and insanity, in regards to 
 life insurance claims, are left to a jury, theyare almost always 
 decided against the insurers, on the ground apparently, if no 
 other can be found, that the act of suicide itself is evidence 
 of insanity.* 
 
 The most important decision, and one in which the Ameri- 
 can doctrine at the present time is plainly laid down to its full 
 extent, has very recently been decided by the Court of Ap- 
 peals of Maryland (Knickerbocker Ins. Co. vs. Peters, 42, 
 Md. 414). 
 
 In this case the policy contained the clause, which by its 
 terms made it void, " if the assured shall die by his own hand 
 or act.' The act of self-destruction was by hanging. The 
 wife of the deceased sought to recover from the insurance 
 company the amount of the policy. The company defended 
 under said clause, which they claimed made the policy void. 
 In deciding the case the court said it is now too well settled 
 to admit of question that the clause is hot to be construed as 
 comprehending every possible case by which life is taken by 
 
 * Dr. Johnson was right when he said, in regard to suicides, "that they are often 
 not universally disordered in their intellects, but one passion presses so upon 
 them that they yield to it and commit suicide as a passionate man will stab 
 another." 
 
I40 PENAL LAWS 
 
 the person's own act. For instance, all the authorities con- 
 cur in the view that an unintentional or accidental taking of 
 life is not within the meaning or intention of the clause. 
 
 Thus, if, by inadvertence or accident a person shoots him- 
 self or take poison by mistake, or in a sudden frenzy or delu- 
 sion tears a bandage from a wound and bleeds to death, in a 
 literal sense of the term, he dies by his own act ; yet all the 
 decisions agree that a reasonable construction of the proviso 
 according to the plain and obvious intention of the parties, 
 would exclude such party from its operation, and the Court 
 instructed the jury that the clause in question would not pre- 
 vent a recovery if they found from the evidence that the de- 
 ceased killed himself in a fit of insanity which overpowered' 
 his consciousness, reason and will, and acted from a mere 
 blind and uncrontrollsible impulse ; and that after they are 
 satisfied that he died by his own hand, it becomes the duty of 
 the plaintiff, on her part, to offer proof sufficient to prevent 
 the operation of the clause ; and she does not comply with 
 such exigency by proof merely that deceased was insane at 
 times. She must prove that he was insane when the act Was 
 committed, and in the absence of such proof of his condition 
 at the precise time when the act was committed, the jury 
 must presume he was then sane, and they cannot draw an in- 
 ference that he was insane from the fact that he destroyed 
 his own life. These instructions, say the Judges, state the 
 law more explicit]}' and more favorably for the insurer than 
 is found in any of the American authorities to which they 
 have referred, or to which their attention has been called on 
 argument. The Court says, in effect, that when the act of 
 self-destruction is done during insanity, it is death by acci- 
 dent. It is to be observed that this clause did not say " sane 
 or insane." 
 
 Mr. Justice Hunt, of the United States Supreme Court, re- 
 marked, in deciding a case, that " insurance companies some 
 times insist that individuals, largely insured upon their lives, 
 who are embarrassed in their affairs, resort to self-destruc- 
 tion, being willing to end a wretched existence if they can 
 thereby bestow comfort upon their families." 
 
 "The juror," adds justice Hunt, "would be likely to repu- 
 
OF SUICIDE. 141 
 
 diate such a theory on the ground that nothing can compen- 
 sate a man for loss of life.'' 
 
 It is a good ground of challenge to a juror, in such cases, 
 if he believes that suicide is an evidence of insanity. 
 
 The question as to the effect of the religious sentiments of 
 felo de se cannot be taken into consideration by the court or 
 jury when considering the sanity or insanity of the deceased 
 in life insurance cases. This has been directly held by the 
 N. Y. Court of Appeals, in the case of Gibson vs. The Am. 
 M. Life Ins. Co., 5 Transcript Appeals, p. 261. 
 
 In that case the question in contention at the trial was 
 whether the death of the deceased was accidental or whether 
 it was a case of intentional self-destruction. The defendant 
 insisted that they had a right to show that the deceased was 
 an infidel and an atheist, and thence to draw an argument in 
 support of the theory of intentional suicide. In holding that 
 such evidence could not be considered, the Court said : 
 
 "To adjudge that a man's belief in Christianity will prevent 
 the commission of suicide, or that atheism will produce or 
 tend to produce a contrary effect, is to adopt a principle 
 more subtle and speculative, more uncertain and more remote 
 than the law can recognize." 
 
 The maxim Nemo praes nuntur, &c. No man is presumed 
 to be forgetful of his eternal welfare, and particularly at the 
 point of death. (6 Coke, 76), relates to dying declarations 
 only, and not to suicides or presumptions in regard to the act. 
 
 Expert testimony is also very much restricted in this class 
 of cases. A medical witness was called for the plaintiff and 
 asked the question : "Assuming that a person had that form 
 of insanity which you denominate melancholia, and had com- 
 mitted suicide, would you attribute that suicide to the dis 
 ease ?" This question was objected to on the trial, and the 
 witness answered, "Yes, I should attribute it as the result of 
 insanity." The N. Y. Court of Appeals 8. (Van Zandt vs. 
 Mutual Benefit Life Ins. Co., 55, N. Y., 179,) granted on this 
 ground a new trial ; the verdict was in favor of the plaintiff. 
 
 The many insurance decisions on the subject of suicide 
 already in the law reports, which show the controversy thai 
 exists among us with all the force of novelty, is caused by the 
 different policies issued. 
 
I42 PENAL LAWS 
 
 So long as insanity is allowed to avoid the terms of insur- 
 ance in cases of suicide, it is apparent that no clause can be 
 inserted in a policy which can effectually guard against it if 
 the question is tried by a jury in the usual manner. 
 
 In our American Courts, in order to see that justice and 
 right is done to insurers, the courts in some cases take the 
 case away from the jury, if possible, and direct a verdict for 
 the insurers (Fowler vs. Mutual Ins Co., 4 Lansing, 202). 
 
 (See McClure vs. Mutual Benefit Life Ins Co., 55, N. Y. r 
 p. 651. Weed vs. do. 70 N Y., 562.) 
 
 The policy in such a case should contain, in the clause 
 against self-destruction, the further proviso "whether sane 
 or insane," or words to that effect. Great caution must be 
 used in this, or a new trial will be granted, for the reason that 
 the case was a proper one for the jury alone to pass upon. 
 
 It has s'eemed doubtful what clause could be inserted in any 
 American policy which could effectually guard against sui- 
 cide. In a late case, however, in the United Slates Circuit 
 Court, in the Northern District of Illinois (Chapman vs. The 
 Republic Life Insurance Company, 5 Bigelovv Ins. Cases, p. 
 no), the company defended against a suicide claim on the 
 ground (among others) that its policy contained a condition 
 thus worded : " In case the said insured die by his or her 
 own act and intention, whether sane or insane, or of death in 
 consequence of the violation of law, * * * then, and in 
 sucli case, it is stipulated by all the parties in interestthatthe 
 company shall not be liable for the sum assured." In point 
 of fact, Chapman's death was caused by a pistol shot fired by 
 himself, and the company disclaimed liability on the ground 
 that the shot was fired " with the intention and for the pur- 
 pose of then and there causing his death." The usual plea of 
 irresponsibility on the ground of insanity was put in as an 
 offset to the company's defense, and the company relied upon 
 the condition of its policy above quoted. The Court said : 
 " I have no doubt of the right of an insurance company to 
 thus protect itself against liabilities ;" and again " as noth- 
 ing is seen in this case, or has been suggested, making it in- 
 competent for the defendant to protect itself against the in- 
 sane act of persons holding its policy, we think effect must 
 
OF SUICIDE. I43 
 
 be given to the condition, and the replication must be held to 
 be bad." 
 
 Quite recently the Federal Court, sitting in St. Louis, de- 
 clared that whether a suicide is insane or not, whatever, indeed, 
 may be the circumstances of his killing, if he dies intention- 
 ally by his own hand, insurance on his life will be forfeited ; 
 the policy contained a stipulation of forfeiture in event of 
 suicide. The Court held, in the same case, that on another 
 policy there was no forfeiture because it was not so stipulated 
 in the policy. 
 
 It was held (Pierce vs. Travelers' Life Ins. Co., 34 Wis. S. C, 
 3 Ins. L. J., 422), where a policy contained the conditional 
 clause "or die by suicide, felonious or otherwise, sane or in- 
 sane," &c , the policy should be null and void; that the parties 
 to the contract having defined the sense in which the word 
 " suicide " is to be used, the Court is bound by that definition, 
 and the insurers are not liable without regard to the mental 
 condition of the deceased. 
 
 The apparent conflict among the American adjudications 
 on this point is chiefly caused by the peculiar wording and 
 construction of the different provisos against self-destruction. 
 The current of these decisions, when the policy is properly 
 worded as construed by our Courts on this question is grad- 
 ually approaching Dean vs. Am. Mutual, (4, Allen, Mass., p. 
 96), and will ultimately be in effect the same as the English 
 decisions, for they are the most just to the insurers and are 
 according to the common law, and are for the welfare of the 
 community as tending to discourage and prevent self-de- 
 struction. 
 
 (Since this part of this paper was published the United 
 States Supreme Court, in October, 1876., in the case of Bige- 
 low, is Berkshire Life Ins. Co., 93, U. S. p, 284, has impliedly 
 followed the case of Borradaile vs. Hunter, in the same direc- 
 tion, by construing a life policy containing the phi ase "sane or 
 insane " to have the same meaning and effect as the policy 
 was held in that case to have without that language. The 
 case also follows the case of Breasted vs. The Farmers' Loan 
 and Trust Co., 4 Hill, p. 74, before cited.) 
 
 In viewing the decisions of our Courts, the express Ian- 
 
144 PENAL LAWS 
 
 guage of the policy must always be considered. The re- 
 strictions and practices in regard to suicide clauses are, there- 
 fore, very important. In England the conditions as to sui- 
 cide are different at various times and in different companies. 
 Some of them issue policies free from any conditions on this 
 point ; others declare that their policies shall be void in the 
 event of death by suicide occurring within a certain period 
 after the issue of the policy, such period varying from six 
 months to five years. The wording of the suicide clause is 
 also various — as, dying by his own hand, whether under the 
 influence of insanity or not. 
 
 Most of the companies declare that suicide, whenever com- 
 mitted, shall not prejudice the assignee of a policy, but some 
 of them add the condition that intimation of the assignment 
 must have been made to them either before death or one 
 month after death. 
 
 French companies also vary in their policies — some omit- 
 ting any clause against suicide, and others containing restric- 
 tions in various terms and conditions. 
 
 In Germany, Austria and Switzerland a great variety of 
 practices exist. Some companies, under their clause against 
 suicide, pay the full amount assured if the policy has been a 
 certain number of years in force, some pay only in the event 
 of insanity being established as the cause of suicide, others 
 only pay to third parties, some leave the settlement, entirely 
 in the hands of their boards, a very few companies preserve 
 silence by omitting the clause or giving but vague directions 
 on the subject. The Gotha Life Assurance Company, the 
 leading company in Germany, formerly considered a policy 
 null and void in all cases of suicide, even without any clause 
 against it, and its action was sustained in the German law 
 Courts. In 1840 an alteration was made in the by-laws of that 
 company; by which it was provided that all claim upon the 
 amount assured, beyond the reserve value of the policy, was 
 lost if a person died by his own hand. It will be observed 
 that no distinction under this regulation was made as to 
 whether a person died under the influence of insanity or oth- 
 erwise. The reserve value is always much less than the 
 amount of the premiums which, have been actually paid. I 
 
OF SUICIDE. I45 
 
 believe that the Gotha originated this plan, which is now 
 quite common in the policies recently issued by American 
 companies. 
 
 The American companies exhibit as extensive varieties in 
 regard to their practices as can well be imagined. They not 
 only include all the European varieties of policies and clauses 
 relating to suicide, but many more. The N. Y. Life Insur- 
 ance Company, the fourth in rank in the United States in the 
 number of outstanding policies, has no clause, and never 
 had any, relating to suicide or self-destruction. Some com- 
 panies now provide that if insanity is ascertained and pro- 
 nounced by an authorized board or person specified by them, 
 by request on the part of the insured, before the act of self- 
 destruction is committed, then the policy will be paid ; some 
 of these, even in such case, only pay the amount of the re- 
 serve of the policy, and others return the premiums. 
 
 About one year ago the Chamber of Life Insurance, com- 
 posed of about thirty leading companies in the United States, 
 recommended that a clause be inserted in the policies of all 
 companies, to the effect that it would he null and void "if 
 the person shall die by suicide or by his own hand, or in con- 
 sequence of an attempt to commit suicide or to take his own 
 life, provided, however, that if any of these acts be com- 
 mitted while in a state of derangement or insanity, the com- 
 pany agree to pay upon the policy thus voided the full legal 
 reserve thereof." 
 
 The policy must be at least one year old to be entitled to 
 this. This has generally been adopted, more or less, in effect 
 by all companies (excepting the New York Life), relating to 
 new policies. Many of them had used it for several years 
 before, more or less. In some instances they return the 
 actual amount of the premiums paid in such cases. The fifth 
 company in rank does this. Some companies contain further 
 restrictions, as to the length of time, &c. The practice of 
 assignment of the policy or the payment to other persons in- 
 terested in the life of the insured is the same as is in general 
 use. In all other cases it must be on consent of the com- 
 pany. 
 
 The question of the legal assignment of a life insurance 
 
146 PENAL LAWS 
 
 policy is governed by the laws of the State where the assign 
 ment is made. (Barry vs. Eg. L. A. So., 59 N.Y., 587.) 
 
 Of the outstanding life policies in the United States, and 
 there are about eight hundred and eighty thousand of them, 
 probably about one-twentieth do not contain any proviso 
 against suicide; and about three-fifths contain only the simple 
 proviso making it void if the insured shall " die by suicide," 
 and about three-tenths contain the additional words of "sane 
 or insane." The first and third companies in rank in the 
 number of outstanding polices only added to that clause "sane 
 or insane " about four years ago — the fifth had used it for 
 many years. The second in rank contains only the simple 
 proviso declaring it void in case of suicide. The fourth, as 
 we have seen, does not contain any restrictions whatever on 
 this point. These five companies have more than one-third 
 of the total number of outstanding policies. 
 
 I have not found or heard of any policy, either in Europe 
 or America, that contained the comprehensive suicide clause, 
 and in addition thereto the words to the effect that said clause 
 should "bind the heirs, executors, administrators and as- 
 signs, and all other persons interested in the insured." Such 
 an addition to some of the suicide clauses which are in some 
 policies (to wit: the case of Chapman vs. Republic Life Ins. 
 Co., above cited) would undoubtedly greatly relieve the 
 Courts of any necessity of ever submitting any question un- 
 der it on this point to a jury, and thus the intention of the 
 parties at the time of the making of the contract would be 
 enforced in law without any uncertainty in the matter. There 
 has never been any reported adjudication upon any policy 
 containing such a clause as is above suggested. In some 
 States these words would be implied. 
 
 Where a policy provides that if the party die by his own 
 hands the policy should be void, except to the extent of any 
 bona fide interest which a third person might have acquired, 
 the English Courts hold that it may be enforced for the bene- 
 fit of others, whatever be the means of which death is occa- 
 sioned. (Moor vs. Woolsey, 25 Beaman, 599. The Solicitors' 
 and Gen. Life Assur. Co. vs. Lamb, 2 De Gex. J. and S 251. 
 
 Where a policy was taken out for the benefit of the wife 
 
OF SUICIDE. 147 
 
 and children of the insured, and it contained no clause for- 
 feiting it in case his death by suicide, it was held by the N.Y. 
 Court of Appeals (Fitch vs. Am. Pop. Life Ins. Co., 59 N. Y., 
 557), that evidence that deceased committed suicide was not 
 admissable, and that the parties interested were not bound by 
 the acts of the deceased unless in violation of some condition 
 of the policy. 
 
 In regard to the enforcement of payment from foreign 
 companies doing business abroad, the general rule of the law 
 of the forum prevails, and the law of the place where the con- 
 tract is to be performed is to be considered without regard to 
 the laws under which the company is organized and located 
 at home. 
 
 The lex loci contractus prevails to a certain extent. The 
 policies generally provide that payment of loss must be by 
 the "home office," and at the "home office." In such case 
 the lex loci is at that place, although a suit is commenced in 
 some other State it is governed by that of the home office. 
 
 To allow insurance for suicide, it is argued, seems unjust to 
 all policy-holders, as it introduces another class of risks which 
 cannot be guarded against, or only to a very limited extent ; 
 and hence all premiums are necessarily made much larger, 
 and a loss in such cases also impairs the capital and surplus 
 of the company. The patronage of the people, however, 
 shows that it is liked by them. The degree of skill exercised 
 in the medical examinations of applicants make the risks 
 much less in such cases than is generally supposed. 
 
 The propriety of allowing any insurance on a life destroyed 
 by suicide may well be questioned on the grounds of public 
 policy. (1.) It is an illegal act, being a felony at common 
 law, as we have before seen. (2.) It is an immoral act, and 
 against the welfare of a State to allow any encouragement for 
 the self-destruction and loss of its members which all are 
 bound to preserve and protect. (3.) It is aiding and abetting 
 suicide, which is also a crime at common law and by statute. 
 The harm done by allowing it is in proportion to the absence 
 of restrictions on that point in the policy, and also in the 
 amount of the insurance. 
 
 The endowment plan has a contrary effect from the usual 
 
I48 PENAL LAWS 
 
 life insurance plans, and it should be encouraged as having a 
 beneficial tendency favorable to the longevity of individuals. 
 The number of endowment policies outstanding in the United 
 States is very small in comparison with life policies. 
 
 CONCLUSION. 
 
 Self-preservation is, unquestionably, the natural law, and 
 is the strongest instinct of all animal life. If it were not more 
 prevalent than the destructive agents without and within or- 
 ganic beings, they would all, sooner or later, become annihi- 
 lated. Love of life, therefore, is and must be the- natural 
 selection and conservative for preservation ; and death, and 
 and the fear of it, is and must be naturally shunned for 
 the same reason. 
 
 Man is the only being in all animal life, with one excep- 
 tion, that ever commits wilful and deliberate self-destruction. 
 The scorpion will sometimes sting itself to death when its 
 hope of life is gone, Byron has graphically described this in 
 " The Giour," by the following lines : 
 
 i« * * * * like the scorpion girt by fire, 
 In circle narrowing as it glows, 
 The flames around their captive close, 
 'Till inly scorched by thousand throes, 
 And maddening in her ire. 
 One sad and sole relief she knows — 
 The sting, she nourished for her foes, 
 Whose venom never yet was vain, 
 Gives but one pang and cures all pain 
 And darts into her desperate brain." 
 
 There are and must be times when the natural instincts are 
 overcome or lost, and then some other stronger and counter- 
 acting influences must be brought to bear to preserve or to 
 restore them to power and healthy action. 
 
 It is, unquestionably, the duty of a State, and each member 
 thereof, to use any and every means to protect and preserve 
 its members from destructive agencies, from whatever sources 
 they may come. Counteracting influences over predominant 
 
'Ot StriCTDE. . I49 
 
 lendencies wliich are or may be harmful to the community, 
 5s the object of all penal laws. The difficulty seems to be 
 how this shall be done in this case. The punishment of sui- 
 cides by a narrow view, seems that it may or can only affect 
 the living, and not the guilty party,— that the innocent also 
 must suffer. All penal laws relatively, affect the friends and 
 "family of those who may violate them, and many times this is 
 found to be their most s&lutary use in deterring their viola- 
 tion. 
 
 We have seen in the foregoing history that there are at- 
 tributes and peculiarities of the mind that may be used to 
 effective!)' prevent this most terrible occurrence. Religious 
 influence should be encouraged as a solace in moments of 
 ■despair, and as having rewards and punishmeuts in a future 
 life. Suffering humanity seems to require this in the day of 
 temptations and of troubles, be they real or imaginary. 
 
 It may be said here that penalties ought not to be enforced 
 against insane persons who commit suicide. It is a well re- 
 cognized fagt that the insane have like passions as those who 
 are not insane, and are amenable to influences, and are re- 
 strained from doing wrong and constrained to do right, by 
 the same motives, which have the same effects in sane per- 
 sons, and that they generally have the power of self-control 
 when they have a sufficient motive to exert it Their actions 
 are controlled, like sane persons, by their hopes and fears, be 
 they real or imaginary. 
 
 The disposition of the body and propertv of the deceased 
 may be in a manner which will deter others from similar acts. 
 Exemplary penalties are common and are always commenda- 
 ble in all penal laws. The bodies of executed criminals have 
 in all nations and countries (except in the United States) 
 from the earliest times to the present, been denied the usual 
 burial rites which were peculiar to the times and country in 
 which they were executed, and some special disposition of 
 them were prescribed. 
 
 We all need protection from this dreadful foe, which may 
 deprive us, at any time, of our most esteemed and nearest and 
 
15° PENAL LAWS OF SUICIDE, 
 
 dearest friend, or our own hand may be raised against our 
 own life ; and then there are those who would mourn for the 
 most worthless of us. 
 
 However useless and burdensome the suicide himself may- 
 be regarded by the community, or by his relatives and 
 friends, or by himself, his example should not be allowed, for 
 some more worthy person may be tempted, in a moment of 
 despondency and madness, to' follow the unfortunate and 
 cowardly course to escape the ills and ails of life, instead of 
 " taking up arms against a sea of troubles," and bravely fight- 
 ing the battles of life through any and every adversity, bear- 
 ing all with fortitude — -always hoping for the better in the 
 sharp extremities of fortune By thus living heroically in 
 the path of duty and right, he will, like a soldier on duty, die 
 as he has lived, heroically ; and, at the last, he can exclaim, 
 with St. Paul, " I have fought a good fight !" Such examples 
 will have beneficial effects 
 
VALEDICTORY ADDRESS 
 
 — BY- 
 
 CLARK BELL, ESQ., 
 
 ON RETIRING FROM THE PRESIDENCY, 
 
 Gentlemen and Colleagues: 
 
 The time has come when it becomes my duty to retire from 
 the Presidency of the Medico-Legal Society of New York, 
 which I have occupied, through your kindness and partiality, 
 for three terms. 
 
 Placed in this position, wholly unsolicited and unexpected 
 at the outset, the duties of which I assumed with grave mis- 
 givings as to my ability to discharge properly, I have made it 
 my earnest endeavor to fill worthily, and so far as lay in my 
 power, to discharge its duties impartially. 
 
 Becoming greatly interested in the success and prosperity 
 of the Society during these years, so eventful in its history, 
 and anxious for a continued era of success in its labors, I can 
 leave this chair with tranquility and satisfaction when I re- 
 member that the name of my successor is a sure guarantee 
 for your future prosperity. 
 
 At the moment when I lay aside these responsible duties, it 
 may not be unfitting that brief allusion should be made to 
 some of the leading events which have distinguished your 
 labors during this period. 
 
 GROWTH OF THE SOCIETY. 
 
 Finding but a few names from the legal profession upon 
 your roll of members at the moment of my first election, I 
 made such personal efforts as brought into the Society some 
 
 (Pronounced Nov. 30, 1875.) 
 
1$2 VALEDICTORY ADDRESS. 
 
 of the most distinguished members of the Bar of the City of 
 New York, and made the two professions more nearly equal 
 in numbers upon your roll. 
 
 Believing that the usefulness of this Society would be 
 greatly enhanced by interesting prominent members of the 
 medical profession, from among those especially who had 
 devoted careful study to the subject of Medical Jurisprudence, 
 I labored for an increase of membership from this class of the 
 medical profession with such success that but few alienists of 
 prominence or physicians of eminence in this branch can be 
 found in the city whose names are not now upon your roll of 
 membership. 
 
 From a small roll of names in 1872, we have swelled the list 
 until we now number upwards of 425 members. 
 
 A marked change in another aspect can also be observed in 
 this body. Its labors upon the various topics that have 
 occupied your attention have embraced a far wider field, 
 and attained a more complete and thorough publicity than 
 before. 
 
 This has been due to causes which have been two-fold in 
 their action r 
 
 1. The public press, animated by a laudable desire to diffuse 
 the result of scientific research and inquiry, has with great 
 kindness and favor noticed our proceedings with more care 
 and fidelity than would be tolerated by merely medical socie- 
 ties ; and medical men, united here with men of other profes- 
 sions in a society which is purely scientific and in no sense a 
 medical society, have not been embarrassed in this respect 
 by questions arising from publications, especially in the 
 public press, which might otherwise have been regarded as 
 objectionable from a purely professional and not a scientific 
 standpoint. 
 
 2. The selection by the Society of an organ which has pub- 
 lished its principal papers, and the republication of all its 
 important contributions, not only for the benefit of members, 
 but for the public libraries and kindred associations through- 
 out the world, have ennobled and dignified the labors of the 
 Society ; and these causes have been completely crowned by 
 the successful publication of a bound volume of our principal 
 
VALEDICTORY ADDRESS. 1 53 
 
 papers in the first of a series which cannot fail to be regarded 
 by students of Medical Jurisprudence everywhere as a most 
 valuable acquisition to the contemporaneous literature of our 
 times upon these topics. 
 
 The first of these volumes has already appeared from the 
 press of McDivitt, Campbell & Co , of No. 79 Nassau street, 
 New York, during the year 1874. The second volume, now 
 shortly to be issued, will bring the work of the Society down 
 to the year 1874, and it will be ready for delivery, as our pub- 
 lisher announces, early in February next. 
 
 LIBRARY. 
 
 Immediately upon assuming the office of President of this 
 body, I ventured to recommend, in my first inaugural address 
 the founding of a complete and comprehensive Library upon 
 Medical Jurisprudence in this city, under the auspices of this 
 Society, which should afford the student of either profession 
 an opportunity of access to all the learning of the world 
 upon questions now daily becoming more interesting and 
 prominent. 
 
 These recommendations, having met with so cordial an en- 
 dorsement from the Society, have encouraged me to continue 
 the same from time to time, and with such results that we 
 may now safely regard the Library as an assured success. 
 
 I have corresponded during the past year with many of the 
 public libraries of Europe, and with a large number of the 
 booksellers of the Old World, as well as our own country, 
 to secure every accessible work in print, with favorable 
 results. 
 
 I submit herewith an appeal, which, by direction of the Ex- 
 ecutive Committee, lias been made to the generosity of both 
 the professions of Law and Medicine, and which, through 
 the kind courtesy of the public press, has been given a wide 
 publicity. 
 
 I also append a list of contributions which have been 
 made to the Library since my last announcement, both in 
 cash and in volumes, with the names of the donors, and a 
 statement of such purchases as I have made for each donor 
 respectively. 
 
154 VALEDICTORY ADDRESS. 
 
 I must not take leave of this subject, now that I am retiring 
 from active participation in .this particular field, without 
 thanking the many gentlemen who have encouraged me in 
 this labor by their countenance and donations, especially Mr. 
 David Dudley Field, Mr. John H. Watson, Mr. Carlisle Nor- 
 wood, Jr., for their generous gifts ; Dr. Frederick Billings, of 
 the Surgeon-General's Office, for his valuable exchanges and 
 kind interest, and last, Mr. L. Del Monte, for the most valua- 
 ble single gift yet made to the Library, being a complete set 
 of " Annales d'Hygiene Publique et de Medicine Legale ;" a 
 gift which is of great value. 
 
 This gift from a gentleman of culture and taste, not a mem- 
 ber of this Society, has deeply touched me, and entitles him 
 to the thanks and good wishes of every member. I ought to 
 say that it has been my earnest wish to create as deep an in- 
 terest in the success of the Library in the members of the 
 medical profession, as that which has been shown by the' 
 legal; and I am not without hope that my honored and tal- 
 ented successor will be more successful in that respect than 
 it was possible for me to be. If this Society shall credit the 
 retiring administration with the founding and establishment 
 of such a library, I shall never regret my labors in this chair 
 nor recur to them without honest pride. 
 
 As a means of awakening an interest in both professions in 
 the Society, and of enlarging the sphere of its usefulness in 
 new and comparatively untried fields of labor constantly 
 opening before it, an Annual Dinner was inaugurated in the 
 first year of my presidency, with such success and public re- 
 cognition that it has been annually repeated, and I hope will 
 remain a feature of the Society, to the success of which, so 
 far as increase in numerical strength goes, it has notably con- 
 tributed. 
 
 THE MEDICO-LEGAL SOCIETY OF FRANCE. 
 
 I had the honor, in my last inaugural address, to recom- 
 mend the nams of Monsieur J. A. Guerard, late the President 
 of the " Societe de Medicine Legale de France" for Honor- 
 ary Membership in this body. The honor, though well de- 
 served, came too late. M Guerard was no more, at the mo- 
 
VALEDICTORY ADDRESS. 155 
 
 ment of our action, the mournful intelligence of which had 
 not then reached us. The eloquent and touching oration 
 pronounced before the Paris Society by that warm personal 
 friend of the deceased, Monsieur T. Gallard, Secretary-Gen- 
 eral of that Society, brings to us a lively remembrance not 
 only of what the French Society suffered in the loss of their 
 President, but that which the science we are organized to in- 
 vestigate sustained throughout the world. 
 
 Volume 3 of the published transactions of the French Society, 
 which we have received, illustrates the singular value of the la- 
 bor of the French Society under M. Guerard's presidency dur- 
 ing the year 1874, in a series of papers, discussions, and reports 
 of cases of great interest, not the least important of which is 
 the report by M. Dolbeau to the French Society upon the 
 subject of " Chloroform as an Agent in the Commission of 
 Crime," in which the whole subject is critically examined and 
 reviewed. The views of our late President, my talented pre- 
 decessor, Stephen Rogers, M. D., are critically analyzed, and 
 a record made of a series of experiments of very great inter- 
 est and value. 
 
 I commend this paper and the subject to your thoughtful 
 attention, and recommend that it be made the subject of crit- 
 ical tests and experiment by a committee of this body. 
 
 The French Society called to the chair, made vacant by the 
 death of M. Geurard. one of its most distinguished names, 
 Monsieur Devergie, an Honorary Member of this Society, an 
 author of distinguished renown in Forensic Medicine, and a 
 former President of that Society. 
 
 An event of great moment to the French Society, contem- 
 poraneous with his inauguration, was the installation of the 
 Society in the Palace of Justice in Paris, where it will hence- 
 forth hold its sessions. 
 
 We can but take a lively interest and feel sincere pleasure 
 at these signal marks of the increasing usefulness and power 
 of our sister Society of Paris. 
 
 The French Government has placed a high estimate upon 
 the usefulness, importance and value of the science of Medi- 
 cal Jurisprudence by its action in decreeing that Society 
 necessary for the public safety and welfare of France, which 
 
156 VALEDICTORY ADDRESS. 
 
 the French tribunals have wisely followed in providing for its 
 sessions in the Halls of Justice. 
 
 RECOMMENDATIONS. 
 
 The advance and progress made by this Society make cer- 
 tain changes in its organic law necessary, which could not 
 have been contemplated by the earlier framers of its code, 
 before the Society had attained that growth and importance 
 which has characterized its later labors. 
 
 While the Society is open to men of science in all the pro- 
 fessions, it is necessarily composed, or is now likely to be, 
 mainly of the two professions of Law and Medicine. 
 
 The main labors of the Society, aside from its public dis- 
 cussions and contributions from members, fall, andvery prop- 
 erly, upon the Executive Committee, in whom nearly all 
 power is vested. 
 
 The usefulness, the prosperity and permanency of the So- 
 ciety therefore depends upon the selection of men of acknowl- 
 edged and recognized position in their respective profes- 
 sions, as members of the Executive or Governing Com- 
 mittee. 
 
 From the medical side, those should be selected who have 
 made Medical Jurisprudence a specialty, and who are recog- 
 nized authorities and experts in matters of Medical Jurispru- 
 dence, and the same rule should obtain, though perhaps not 
 so strictly, in the other professions. 
 
 The Paris Society have made this the distinguishing feature 
 and characteristic of their body, and to this is greatly due 
 their wonderful success. 
 
 Again, in selecting members of the Executive or Govern- 
 ing Committee, the prosperity and usefulness of the Society 
 depends in a large measure, in my judgment, upon selecting, 
 as near as may be, an equal number of the officers from each 
 of the professions of Law and Medicine. I recommend, there- 
 fore, such a change in the Constitution or By-Laws as will 
 provide that at least five of the fifteen members of the Execu- 
 tive Committee annually elected shall be selected from each 
 of the two professions of Medicine and Law. I also recom- 
 mend, for the purpose of more effectually securing this re- 
 
VALEDICTORY ADDRESS. 157 
 
 suit, that each be balloted for separately at the annual 
 election. 
 
 I may say that the most important, the most distinctive 
 feature of the French Society, is its 
 
 PERMANENT COMMMISSION. 
 
 It is composed of the President, the Secretary-General, and 
 of nine members, chosen especially for their scientific attain- 
 ments and superior knowledge as experts in matters of Medi- 
 cal Jurisprudence, from either profession. 
 
 These members are elected three each year, are selected 
 with great care from the most eminent names in France in 
 this regard, and they hold their office for three years each. 
 
 A majority of this Commission decides a question, and four 
 voices are necessary to a quorum. 
 
 This permanent Commission is charged with the solution 
 of any question that may come to the body from the Courts 
 or other sources during the interim between the sessions of 
 the Society, and its action is subordinate to and always under 
 the review of the Society itself. 
 
 Its especial value is that it is composed of men of such 
 character and standing, that its decision upon an obscure 
 question of Medical Jurisprudence is of the highest value, 
 and is usually conclusive. To this Commission questions 
 arising in the courts, in the administration of the criminal 
 law, and various other questions, are constantly referred, 
 and its usefulness and practical value cannot well be overes- 
 timated. 
 
 M. Devergie, on the occasion of his last assuming the chair 
 of the French Society, in speaking of the labors of this Com- 
 mission and its results, says : 
 
 "We make an appeal, or rather we make an entirely disin- 
 terested offer to magistrates, to advocates, to medical experts, 
 surgeons and chemists, and we say to them, if any difficulty 
 presents itself to you in the discharge of your duties, if the 
 solution of any question embarrasses you, or if you feel any 
 doubts upon your mind, come to us, and with a very little 
 delay you will receive the response from a body of men ac- 
 customed to interpret such cases, and deduce their conse- 
 
158 VALEDICTORY ADDRESS. 
 
 quences." He continues : " This appeal, gentlemen, has 
 been largely heard in all parts of France. Tribunals, magis- 
 trates, advocates or physicians have for six years submitted 
 to us their most difficult questions, and in the generality of 
 case the Society has had the good fortune to see its advice 
 taken in the decisions and judgments which have been ren- 
 dered." 
 
 This is a remarkable statement, and is the testimony of 
 the ablest Medico-Legal jurisL of France as to the prac- 
 tical value of such a properly organized " Permanent Com- 
 mission." 
 
 I venture to recommend this subject to your careful con- 
 sideration, and should regard it as a great advance if such a 
 Commission could be established by this Society, provided 
 such safeguards could be thrown around the selection of its 
 members as would insure the selection of men of the highest 
 scientific attainments in Medical Jurisprudence. Without that 
 it would prove an injury rather than a benefit to the progress 
 of scientific research and truth, which should underlie all 
 your investigations. 
 
 OBJECTS AND AIMS. 
 
 The Medico-Legal Society is and should be studiously re- 
 garded and kept as a purely scientific body. Composed as 
 it must necessarily be of men of various professions, united 
 for the common purpose of careful scientific research upon 
 abstract scientific questions, it cannot be called or regarded 
 in any sense as a Law or Legal Society. 
 
 It is not in any sense, and should never become a Medical 
 Society. 
 
 As the Paris Society opened its doors to men of distinction 
 and eminence in Philosophy, in Chemistry, in Pharmacy ; to 
 Naturalists, Physicists, Scientists, and even Veterinary Sur- 
 geons, so have we opened ours, not quite so wide perhaps as 
 our Paris confreres, who admit pharmacists and veterinary 
 surgeons, but we do admit chemists and scientists, and men 
 of eminence in letters, which must be wide enough to take all 
 the brain and capacity that can aid us in the careful and 
 scientific search after truth. 
 
VALEDICTORY ADDRESS. 1 59 
 
 Danger would threaten the integrity of this body if any ill- 
 advised or thoughtless person should attempt to enforce it, 
 or engraft upon it, on the one hand, any of the usages or 
 ethics peculiar to strictly medical societies*, which only med- 
 ical gentlemen can explain, much less, justify; or on the 
 other, any questions or ethics peculiar to lawyers, as such. 
 
 We escape all these vexed and confusing questions, and our 
 permanency and safety lies in standing squarely on the broad 
 platform of a strictly scientific Society, allowing each profes- 
 sion to govern itself, outsi.de our Society, in its own way and 
 manner. 
 
 I shall leave to my honored successor the discussion upon 
 the advancement which is being made in the various fields of 
 scientific research and inquiry, and shall pass without com- 
 ment the various topics upon which I have freely spoken to 
 you on other occasions. 
 
 Your interest in these important regards could not be 
 placed in abler or safer hands, and lie will bring to the dis- 
 charge of the duties of this chair a ripe experience, which 
 cannot fail to add lustre to your Society under his skilful 
 direction. 
 
 In conclusion, let me thank you, one and all, for that kind 
 and cordial support which has been constantly extended to 
 me upon this floor, and in all the varied duties of this chair, 
 and which I shall never forget. 
 
 It is not unlikely that in so extended a term of service I 
 may have given offence or have made mistakes. If so, I 
 know of no more fitting occasion than the present to express 
 my regret, and to assure all thct it has not been intentional, 
 and to request that it should be overlooked and forgotten. 
 
 And now, permit me to congratulate you, gentlemen, and 
 the Medico-Legal Society of New York, upon that peculiar 
 good fortune which enabled you to secure as your President, 
 for the ensuing year, Prof. Frank H. Hamilton, who has won 
 his way by an industry equaled only by his ability, into the 
 very front rank of his profession, whose name is authority 
 upon his specialty wherever the English language is spoken, 
 whose writings have met the critical approval of the students 
 and savans of modern scientific research in all countries, and 
 
160 VALEDICTORY ADDRESS. 
 
 whose successes in his professional life are not greater than 
 the talent he has shown in the chair of the professorship of 
 his choice. 
 
 It was meet and proper that such a man should be chosen 
 as the President of this Society; and it is a source of the 
 highest pleasure and personal gratification to myself that you 
 have so generously seconded my own wishes in transferring 
 he honors of this distinguished position into such worthy 
 and capable hands. 
 
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Charles P. Daly, L.L.D. 
 
 Ex-Chief Justice Daly was born October 31, 1816, in New 
 York City. His parents were emigrants from the North of 
 Ireland. He was admitted to the bar in 1839. He was 
 elected to the State Legislature in 1843, and was appointed 
 Judge of the Court of Common Pleas by Governor Bouck, 
 in 1844, to succeed Judge Inglis. 
 
 His judicial career commenced May 1, 1844. He was re- 
 elected continuously until his retirement from the bench, 
 having reached the Conscitutional age limit, making a record 
 of over forty-one years of service, during which he was Chief 
 Justice since 1858. Columbia College conferred the degree 
 of L.L.D. upon him in i860. In 1867 he was elected a mem- 
 ber of the Convention to revise the Constitution of the State. 
 
 Judge Daly has-acquired national and cosmopolitan repu- 
 tation by his presidency of the Geographical Society, which 
 honorable position he has filled for the past twenty-three 
 years He is an Honorary member of the National Geo- 
 graphical Societies of England, Germany and Russia. 
 
 He has always been an interested student of medical juris- 
 prudence, and identified with the Medico-Legal Society at 
 an early day. He was Vice-President of that Society in 
 1873, and on his retirement from his long service on the 
 Bench, was unanimously recommended for re-election as an 
 honorary member of that Society, a position which he now 
 holds. 
 
 Aside from his valuable papers on geographical discus- 
 sions, which entitle him to high praise, he has been a writer 
 on judicial questions, and his opinions fill many volumes of 
 our Common Pleas reports. 
 
 The New York Times says editorially of Judge Daly, on 
 the occasion of his retiring from ihe Bench : 
 
 "Judge Daly is, in the highest and best sense of the much-abused term, a 
 self-made man. His decisions have not only been good law, but they have 
 
CHARLES P. DALY, L. L.D. 
 
 been well-expressed law. The scholar in him has come to the aid of the 
 lawyer in making clear what otherwise might have been obscure." 
 
 Judge Daly has ever maintained the confidence and 
 respect of all classes of citizens in this city, and his life and 
 career is one of the best examples of that success which, in 
 America, comes to the young man from patient endeavor 
 and conscientious right action. Without a collegiate educa- 
 tion, he has taken high rank as a jurist and held first place 
 in this city as a citizen, scientist and gentleman. c. b. 
 
EPILEPSY WITH MANIA. 
 
 (CASE OF JOSEPH WALTZ.) 
 
 By A. O. KELI.OGG, M. D., of Poughkeepsie, N. Y. 
 
 On the evening of May ist, 1873, Joseph Waltz, then aged 
 22 years, killed Harmon Holcher, an Albany scissors-grinder, 
 who at that time was a guest at his father's house. The mur- 
 der was committed at night, and the body and the property 
 of the murdered man having been disposed of secretly, the 
 tracks of the murderer being thus covered. Nothing was 
 known of the crime until a Mr. Kelch, son-in law of the vic- 
 tim, becoming alarmed, and suspicious at Holcher's non- 
 appearance, set out to search for the missing man. He easily 
 traced him to the village of Catskill, and from there to the 
 house of one Anselm Waltz, a farmer, who lived three miles 
 out on the road between Catskill and Athens. On inquiry, 
 he learned that it was here that the old man had stopped for 
 a night's lodging, and that in the morning following it was 
 discovered by the inmates that their lodger had mysteriously 
 disappeared, leaving his bell in the room where he had slept, 
 and taking with him the pillow and blankets of the bed he 
 had occupied. 
 
 Mr. Holcher was known by his friends to be always regular 
 and temperate in his habits, and though accustomed to go 
 often on trips similar to this, he would almost invariably re- 
 turn at the time he had specified, and thus it was that his 
 
 Read before the Medico-Legal Society, Dec. 23, 1875. 
 
162 EPILEPSY 
 
 prolonged absence caused so soon uneasiness and alarm 
 amongst his relatives. Mr. Holcher, his wife, and Michael 
 Kelch, his son-in-law, set out early to learn the fate of the 
 wanderer. After going to Hudson, Poughkeepsie, and Ron- 
 dout, they went to Catskill, where, as before stated, they were 
 informed that he was last seen going to the Waltz farm-house. 
 They accordingly went there, and made inquiries of the father 
 and son Anselm and Joseph Waltz, whom they found at work 
 in the fields. At first they denied that Holcher had pnssed a 
 night, that spring, with them ; but finally recollected that he 
 was the man who had left so sudden during the night, taking 
 with him the pillow and blankets. The strangeness of the 
 whole occurrence, and the afterward somewhat singular be- 
 havior of the son aroused suspicions, and both he and his 
 father were arrested the next day. After the arrest the 
 grounds were searched, but nothing was found excepting 
 pieces of the machine and a few small pieces of blood-stained 
 clothing. Though these increased the excitement and con- 
 firmed, to a certain extent, apparently, the suspicions, the 
 search for the body was abandoned after the lapse of a week. 
 Just after this, some tools of the missing man were found on 
 the side of the road near Coxsackie, and on a telegraph pole 
 near by, was pinned an extraordinary letter, half printed, 
 half written, but evidently in the handwriting of Joseph 
 Waltz. This letter was addressed to Masons, Constables and 
 Detectives ; and purported to be a confession of this and 
 many other murders, and so-forth^ by six banditti, or '' Prac- 
 tical Highway Robbers." After the discovery of the letter, 
 Joseph Waltz made a full and voluntary confession of the 
 crime, and even went with the officers to the farm to point 
 out the exact place where he had buried the body. The body 
 and the missing blanket were found at the place indicated. 
 The result of the trial, subsequent to the coroner's inquest, 
 was his conviction of murder in the first degree, and sen- 
 tence to be hung. The execution was ordered for the first of 
 May, 1874, the first anniversary of his terrible crime On the 
 afternoon of the 29th of April, while in prison, he committed 
 his second murder, killing his keeper, Charles Ernst. He 
 was hung on the day appointed, May 1st. 
 
WITH MANIA. 163 
 
 The interest of the case lies in the apparent difficulty of 
 determining exactly what the mental condition of the man 
 was. The plea brought by the defense was insanity, and 
 many were convinced of its justness. So difficult was the 
 solution of this question, however, that to this day it may be 
 considered as re.illv unsettled, for not only did the district 
 physicians disagree, but also the experts, of whom I hap- 
 pened to be one, giving an opinion to the District Attorney, 
 who called us here, that Waltz was insane. 
 
 To lay before the Medical and Legal professions, the testi- 
 mony bearing on the mental condition of Waltz, without pre- 
 judice or bias, is the object of this analysis, and the reader 
 must judge for himself of the legal responsibility of the man, 
 and the justice or injustice of the sentence. 
 
 The Medical Jurist will also be able to draw a contrast be- 
 tween the hurried manner and want of care with which this 
 case was analyzed and disposed of, and there investigated and 
 reported upon in German Courts, by Dr. Linan. 
 
 The trial took place in March, 1874, before Judge West- 
 brook, at Catskill,and over seventy witnesses were examined. 
 
 The following, bearing chiefly on his psychological condi- 
 tion, is condensed from the notes of the testimony kept by 
 the Hon. J. A. Griswold, and the Hon. A. M. Osborne ; the 
 former the leading attorney for the prosecution, the latter, 
 now on the Bench of the Supreme Court, for the defense. 
 
 The father and mother were Germans, and are represented 
 as being ignorant people ; the former was a farmer, and a 
 man of ordinary intelligence ; the latter was a woman of a 
 nervous and excitable temperament, very talkative, and often 
 difficult to manage. She appears to have been one of those 
 persons whose condition seems to constantly border on in- 
 sanity." 
 
 These facts are perhaps interesting, as throwing some light 
 upon the hereditary psychological tendencies of the son. 
 
 There is nothing particularly interesting in Joseph's child- 
 hood, though even when a schoolboy he is represented as 
 being peculiar. He never joined his schoolmates at their 
 sports, and he shunned all society. The habit clung to him 
 as he grew up. He took to himself no companion or encour- 
 
164 EPILEPSY 
 
 aged intimacies. To his neighbors and friends he always 
 appeared as an industrious, honest and moral young man, he 
 neither smoked, drank, nor swore. When he was old and 
 strong enough, his father put him to work on the farm. 
 
 Beside the little singularities mentioned, nothing was 
 noticed till within three or four years of the murder. As he 
 approached manhood, a change took place in him, and symp- 
 toms, evidently of an epileptiform nature developed them- 
 selves. He complained frequently of headache ; at times he 
 was unnaturally depressed and gloomy ; he had strange fan- 
 cies, and passed many sleepless nights ; would sometimes 
 neglect his work, and his conduct was so strange that it be- 
 came necessary, often, to watch*him. He would refuse food, 
 at times, for forty-eight hours in succession, and often was in 
 such a stupid condition, that no answer could be got from 
 him, no matter how important the question, or how impor- 
 tunate the questioner. 
 
 A wild and vacant expression of the eye was frequently 
 noticed by his family and many others with whom he came in 
 contact, and also a peculiar drawing of the nose Occasion- 
 ally he was unable to transact business properly, — and when 
 he went to town to sell berries — part of his vocation — it was 
 necessary, often, for somebody to go with him, to prevent 
 his making mistakes. He was also very careless in his driv- 
 ing ; would let the reins hang loosely, drive fast, keep his 
 head down, and seldom turn out of the road for passing 
 teams. 
 
 He had been in the habit of sitting up until twelve o'clock 
 at night, reading. He read the Agricultural Journals, and 
 similar literature, but never any sensational novels. One of 
 his peculiar notions, that he carried into execution, was to 
 build a tower from which he could "speak pieces," could 
 study alone, and see people without their being able to see 
 him. He worked at this tower psrseveringly for four years, 
 during his spare hours, and indeed a good part of the time 
 when he should have b en engaged in his farm duties, was 
 spent in this manner. This tower was built of stones he col- 
 lected from the farm walls and about the premises, and it 
 contained a door and four or five windows. About the time 
 
WITH MANIA. 165 
 
 he commenced work on it, the first observed epileptic con- 
 vulsion occurred. Father and son were working in a ditch, 
 when the father noticed him suddenly fall, with his face to 
 the ground, unconscious ; there he lay for some time, his 
 hands shaking. He " screamed out once." His father car- 
 ried him to the house, and after placing him on a bed, at- 
 tempted to open his mouth to administer " restoratives," but 
 was unable to do so. He then commenced rubbing him, and 
 in the course of two or three hours he "came to." He lay 
 on the ground about ten minutes, his muscles " were stiff," 
 and his eyes were " glassy and fixed." 
 
 While in bed he had "spasms." Though he recovered 
 consciousness, he kept his bed till next day. When he got 
 up, he "complained of soreness," and did not work any for 
 two or three days. At another time, his sister says she saw 
 him back of the barn, "all in a tremble," "his eyes 
 glassy and fixed ;"' she asked him if he "could not help it," 
 but she received no answer ; she then went to the house for 
 her father, and by 'the time they came back, "Joe " was gone, 
 and they did not see him again that dny. The father testifies 
 that, about a year after the occurrence of the fit first men- 
 tioned, he was " taken sick " again in a similar manner ; this 
 time they were hoeing poiatoes in a lot; he "fell on the 
 ground," "he clinched the gravel," "rolled around on the 
 ground," and was "rigid." The father says he noticed the 
 same thing again in " strawberry time," when they were weed- 
 ing strawberries, he commenced " pulling up plnnts and 
 weeds together, shook, eyes were glassy, was rigid, and so- 
 forth." During the three or four years pieceding the mur- 
 der, if Joseph was not insane, his behavior certainly, at 
 times, was uncontrollable and extraordinary, and he is repre- 
 sented as having both hallucinations and illusions. 
 
 A strange hallucination, as testified to by his father and 
 sister, was observed in the summer of 1872. This was con- 
 nected with a couple of dresses which the sister was in the 
 habit of wearing when she rode out. About these he main- 
 tained there was an odor that was offensive to him, and he 
 always objected to her wearing them on that account. On 
 one occasion, when they were dining, he jumped and ex- 
 
1 66 EFTLEPST 
 
 claimed: "Your dress stinks!" And he obstinately main- 
 tained the idea in spite of the remonstrances of the rest of the 
 family. These dresses were of linen, and there was nothing 
 unclean or unusual about them perceptible to others. 
 
 The first change in his conduct noticed by others than his- 
 family, was in the summer of 1872. A neighbor who had 
 known the family for years, and knew Joseph when he was a 
 schoolboy, testified that about this time he saw a change in 
 his general conduct. 
 
 About the first of August, Joseph went to his house to buy 
 pigs. He took a couple, forwhich he agreed to pay $10.00. 
 When he and his sister called for them two or three days 
 afterwards, he offered as payment only $5.00, saying that they 
 had been sold to him at twenty shillings apiece. When re- 
 monstrated with, he said, " Why, that is the price we sell you 
 pigs." He seemed to forget that the pigs he referred to were 
 only six weeks old, whereas those he had bought were three 
 months. He then said he would take the pigs home, and hear 
 what his father would have to say. This he did, and though 
 his father concluded not to keep them, there was no ill will 
 in any way engendered between the families. But for a month 
 afterward, when theymet on the road, Joseph would hang his 
 head down and pass along without any recognition, whereas 
 formerly he was always in the habit of speaking. After that, 
 at times, he would speak pleasantly, as usual, and at other 
 times would pass by and pay no attention to their salutation. 
 He acted "queerly " in this way about once in three or four 
 weeks, being at these times apparently in a reverie or ''brown 
 study." Although their conversations were not often in any 
 way unusual, yet at times Joseph's was said to be disconnected 
 and disjointed. During the succeeding fall and winter he 
 was noticed, on two or three occasions, when walking alone, 
 to stop suddenly, look upwards, and " make gestures towards 
 the heavens." 
 
 This, as all the testimony, is important, as bearing upon 
 that periodicity that characterized his attacks, and which was 
 observed from the beginning to the end. 
 
 In the fall of 1871, he cut down about forty bearing Isabella 
 grapevines. These vines, according to his father's testimony, 
 
WITH MANIA. 167 
 
 were of a " good kind ;" had been set out seven or eight years 
 and were worth about $1.00 apiece. He did this without 
 orders, and when asked by his sister, who was watching him, 
 what he was doing, he answered her, " nothing.'' 
 
 The next fall he repeated the same performance. He went 
 out this time by moonlight, and cut down and killed with a 
 pair of shears, a lot of choice, "good-bearing," "Concord 
 vines," six rows in all, with about fifty plants in a row. These 
 had been set out about six years, and were valued $2.00 each. 
 When called to task the next morning by his father, who then 
 for the first time discovered the destruction of the previous 
 night, he was unable to give any satisfactory reason for his 
 conduct. 
 
 A neighbor testifies that, in the fall of 1872 and the spring 
 of 1873, he noticed that Joseph had removed several vines, 
 and on questioning him, was told that, the first lot were old, 
 and that the grapes were poor, and that he was intending to 
 plant something that would pay better, and that the second 
 he took out because the ground was rocky, and they did not 
 do well. 
 
 During these years he had "spells," in which he acted 
 strangely. Between these he would work well, and his con- 
 duct be natural, would converse with his family, tell them 
 about what he had, and so-forth, but when these "spells"- 
 came on, which they did about once in three weeks, he would 
 become uncommunicative, and often refused food, sometimes 
 he would do his work in a different manner from ordinary 
 people. For instance, on one occasion when he was planting 
 current bushes, instead of carrying thirty or more of the lit- 
 tle plants at a time, under his arm, he went to the back of the 
 lot where they were to be planted, dug a hole and then went 
 and got one current plant ahd set it out. This he did several 
 times, giving himself a large amount of additional and un- 
 necessary labor. When spoken to about it by his sister, who 
 had been watching him for about an hour, he told her to go 
 into the house. 
 
 He had some strange and startling hallucinations and illu- 
 sions in the autumn of 1872. One evening he went out of 
 doors and commenced shooting rapidly. In about half an 
 
1 68 EPILEPSY 
 
 hour his sister went out and inquired what the matter was, 
 and, "why he was shooting so." He told her, because 
 he saw people moving around among the grapevines. 
 
 The grapes were ripening at this time. He declared that 
 people were after him and the grapes, and that he was firing 
 at them. The father then came out, and the three thoroughly- 
 explored the place. Once, Joseph suddenly stopped and 
 said : " See, there they go /" They tried to assure him no one 
 was there ; but he would persist that he "saw" them. Of 
 course no one was there. Presently they arrived at the S. 
 E. end of the vineyard, where were two bushes. These he 
 pointed at, saying, they were "two men." They could not 
 entreat him to return with them to the house. He remained 
 out till midnight, some three hours, firing excitedly all the 
 time. Though this is the longest, it is not the only time, for 
 during the preceding.year, he would occasionally go into the 
 vineyard and shoot, and on being questioned about it on the 
 morning following, would reply that " some one had been 
 there." This firing was heard on the different occasions by 
 their neighbors. They complained about it at the time, and 
 testified to the fact of their hearing it, at the time of trial. 
 The testimony given on behalf of the people consisted chiefly 
 in trying to prove, up to the time of the murder, nothing was 
 noticed that would lead to the opinion that he was insane, but 
 as this was given by persons with whom his relations were 
 only of a business nature, he having no intimate friends or 
 companions, and it being negative in character, it must there- 
 fore be only taken for what it is worth. 
 
 Although always bearing a most exemplary character, 
 among his neighbors, he had, according to his own confession, 
 for the three months prior to the commission of his crime, at 
 various times had been engaged in robbing school-houses. 
 His object in doingthis certainly could not have been forgain. 
 He must have been under the influence of some strange im- 
 pulse other than that which prompts the ordinary midnight 
 thief and burglar. The first school-house he entered was 
 that at Hamburg, this was in the middle of February, 1873 ; 
 two weeks afterwards he robbed it again. 
 
 The Clough school-house he either intentionally or acci- 
 
WITH MANIA. 169 
 
 dentally set on fire. The Jefferson school-house was robbed 
 March 12th, and the school-house at Leeds, April 15th, 1873. 
 In the latter he left a letter addressed to "Mr. Pedagogue," 
 in which he says the robbery was committed by a " band of 
 outlaws from British Columbia," who were then going west, 
 to Cairo ; that they intended to use the books stolen in re 
 forming the half-civilized Indians of British Columbia ; and 
 that they were under the influence of " Belial." The general 
 style of the letter was similar to that found at Coxsackie. To 
 plunder these buildings he was compelled to give up his 
 night's rest, march through snow, water and mud, and hide 
 what he had stolen, before morning, to prevent his parents 
 from discovering his wrong doings. 
 
 These books were mostly school-books, readers, etc., for 
 which he could have no use. The account which he gives 
 himself in his "confession " is probably the only truthful and 
 accurate one. 
 
 In the repert of the Commissioners appointed by Gov. Dix, 
 to investigate the man's condition, and upon which the Gov- 
 ernor refused to grant a reprieve or commute his sentence, 
 we find these statements : " His father states that his health 
 has always been good, and that nothing unusual has ever been 
 noticed in his conduct; that he was a good worker, spending his 
 time at home ; a great reader, and attentive to all business, 
 being particularly well informed in the culture of grapes and 
 similar small fruits." And again, " We were informed by his 
 father that up to the time of Joseph's arrest he noticed no 
 change in him." 
 
 These are the only references made by the Commissioners 
 to Waltz's condition prior to the arrest. And the reader must 
 reconcile these statements of the commissioners with the tes- 
 timony given above by the father and sister of Waltz, and 
 the following comments on the same by Judge Westbrook in 
 his charges to the Jury, as best he may. 
 
 " Let us glance, in the first place, at some of the promi- 
 nent facts proven upon the part of the prisoner. It is said 
 that some three or four years ago that the life and habits of 
 this young man changed. They say that up to that time he 
 had been a man of most exemplary conduct and deportment 
 
I70 EPILEPSY 
 
 remarkably so for one in his position of life, when suddenly 
 he changed his characteristics, and that his reason no longer 
 controls his actions and governs his conduct; and to prove 
 this proposition they have adduced quite a mass of evidence. 
 First and prominent, of course, is the evidence given by his 
 father and sister, who had a better opportunity of knowing 
 what thisyoung man had been previous to the commission of 
 this act, and who have a better knowledge of his nature. 
 They say that some years ago his conduct did change ; he 
 became at some time, sulky, sullen and morose ; at times he 
 would answer no questions ; at times he would refuse food ; 
 he commenced about that time, they say, to build a tower, 
 from the top of which he was to speak his speeches to the 
 world, and in which he was to study and write! They say 
 also, that about that time he had three epileptic fits, thus 
 showing that the physical system had in some way become 
 impaired, and as a natural consequence the mental powers 
 had become enfeebled and weakened. They speak of an oc- 
 casion when at night he went out among the vines shooting, 
 claiming that he saw some persons among the vines, whilst 
 both the father and sister say that though they carefully 
 searched through the vines they coulr^ hear or see no one, 
 and they left him shooting, and he continued to do that for 
 the space of about three hours, he havirlg shot for about half 
 an honr before they went out. I have not undertaken to 
 enumerate all that they have said, though I may mention one 
 other fact. They say his mind became so impaired and con- 
 fused that he could no longer make change accurately, and 
 the sister was sent with him. That in driving he became ab- 
 stracted and moody, that the lines hung down in the wagon, 
 and that he paid no attention to the horse's direction." 
 
 At the time when Michael Kelch and Mjrs. Holcher called 
 to inquire after the murdered relative, Joseph was kneeling 
 on the ground at work in a strawberry patch. He did not 
 move when they approached, but kept in the same position, 
 occasionally looking sideways at Mrs. Holcher. When told 
 to get the bell by his father he started off, but did not return 
 that afternoon. Between the murder and the time of his ar- 
 rest, he was often low-spirited, much dejected, and was seen by 
 
WITH MANIA. 171 
 
 the neighbors to go about with his head down. When he was, 
 arrested on the farm, and told to put the handcuffs on, he 
 said, in reply to the accusation of having murdered the man, 
 "You can't mean what you say ; all the neighbors know we 
 are poor, industrious people, working on our little farm.' 
 On the way down to the village he told his custodians that 
 his parents retired first on the night that Holcher had stayed 
 there ; that then the scissors-grinder went to bed, and then, 
 retiring himself. That being much fatigued, he immediately 
 went to sleep, but was wakened sometime in the night by the 
 sound as if some one was vomiting. At first he thought he 
 would get up, but as the noise ceased, he fell asleep again, 
 and the next morning when his motherwent into the room to 
 call the scissors-grinder, he was gone. When he was told 
 that " it was a hard case ; that the man had surely been mur- 
 dered, there, and that unless he could prove himself clear, he 
 would be held responsible for the crime, he rode on in 
 silence for about half a mile, and then sighed, and said : 
 " This would make me feel very curious if I did not know I 
 was perfectly innocent ; but I know that it will all come out 
 right in the end." At the Justice's office, where the warrant 
 wa~ served for his arrest, he said he was ''not guilty"; but 
 he appeared quiet and was not in any way excited, nordid he 
 manifest any indications of concern on his part of these pro- 
 ceedings 
 
 During his first few days in jail he seemed " stolid, dazed, 
 and apparently — indifferent. These days were occupied by 
 parties in searching the farm for evidences of his guilt. The 
 result of this search was the finding of pieces of the machine, 
 some small pieces of blood-stained clothing, the lounge upon 
 which the man had slept, and upon which were large stains of 
 blood ; they also found in the field, near the well, a lot of 
 blood-stained stones — where, evidently, the body had lain, 
 and traces of the fire where the machine was burned. 
 
 There was discovered, at this time, between two telegraph 
 poles, near Coxsackie, a hammer, vise, oil-stones, etc., and 
 on one of the poles, about four feet from the ground, and 
 fastened by four tacks, was the following letter : 
 
I7 2 EPILEPSY 
 
 Messrs. Constable and Detectives : 
 
 Gentlemen : We must affirm positively that you are utterly 
 unfit for the office you are holding. As we have been among 
 the unsuspecting people between this place and New Balti- 
 more for nearly a week, and have performed various diaboli- 
 cal deeds and inscrutable tricks ; we wish to let you know 
 that one of our bandits came near knocking one of you over 
 the other day. We intended to leave this country and pro- 
 ceed westward ; but near the village of Hunter we came 
 across an expert bank robber, of Europe, who claims to have 
 discovered and planned a most ingenious and efficacious way 
 of entering banks and opening safes, &c. He says that his 
 mode of carrying on the banking business in the United 
 States, especially in the Eastern or New England States, will 
 be such as no human being in the ancient or modern times 
 ever brought into effect. A bank, for instance, is not entered 
 at night, as is usually the case, nor is it forced open with iron 
 bars or sledge-hammers, neither by aid of any explosive pow- 
 ders, but it is entered by " superhuman " skill as he says, in 
 broad daylight. 
 
 Further information on this subject you will receive in 
 about four months by telegraph from Boston or Charlestown, 
 Mass., for by that time, he says he shall be prepared to exe- 
 cute and prove to you all (the whole body of people) for the 
 first time this extraordinary, most wonderful, exciting, and 
 demoniacle operation ! This distinguished biped is a native 
 of Paris, France, the most notorious "jack" on this planet, 
 he is going back to Europe for various instruments, of which 
 you know nothing, and cannot be obtained in this country; 
 such articles as masks, shackles, handcuffs, wigs, and many 
 other things, all of which are difficult to be had and under 
 great risk. This dexterous villain immediately consented to 
 join our infernal band of burglars and cutthroats, and as soon 
 as he returns from the island of Corsica we shall embark with 
 him in his new enterprise. The wit and pluck of this adroit 
 cynic is indeed beyond our comprehension. He would not 
 allow us to mention his name, and would not have us practice 
 any more of the petty robberies, but that we should do a 
 more profitable business, such as midnight assassination. 
 
WITH MANIA. 173 
 
 One of our gang, Isaac H. Van Ness, performed an execu- 
 tion near Freehold, in this county, by braining an individual 
 & Robbing him of over Two hundred & Thirty seven Dollars 
 in money and a valuable Gold watch ! Another young fellow 
 about half way between [over] Albany & Coeymans was as 
 saulted by us on the 26th of Apr. 
 
 He was travelling about, begging from house to house such 
 cents and dollars as were considered little acts of charity by 
 the donors; poor, as he appeared to be, he had $500 in his 
 possession. One night as we wished to take a little nap under 
 a shed we found an old straggler occupied (as we thought 
 stealing horses), we immediately dispatched him with our 
 pocket rifles, fired by riflers. We afterward found that he 
 was some sour-krout Dutchman and razorgrinder. We broke 
 the old concern he carries about to atoms. 
 
 There is no man on earth to discover us or our victims or 
 to reveal this mystery, you are all aware of the fact that "in- 
 fernal " power is increasing on earth. Should you attempt to 
 search for us we will have you scalped before you know it. 
 
 Good night Mr. Detective. 
 
 n K h 
 
 Hi 
 
 PhEP4 
 
 G. E. Clinton, Commander. 
 R. B. Hamilton, Spy. 
 
 -, Bank Robber. 
 
 — Taylor, Outlaw. 
 
 I. H. Van Ness, Cutthroat. 
 
 — . Tilton, Bandit. 
 
 This letter was written on a piece of paper taken from a 
 copy-book, which copy-book was found in Joseph's room, and 
 no doubts could be entertained concerning the identity of 
 the handwriting. 
 
 On the Sunday evening following, Joseph was told of the 
 evidences of guilt which had been discovered, and was ad- 
 vised to confess, if only for the sake of his father and mother, 
 who would otherwise also be implicated. He replied that he 
 did not want to say anything that night, but would wait till 
 morning. The next morning when told that his parents were 
 arrested, he said : "It is no use, mother is innocent; I have 
 been very wicked, but I have prayed all night, and feel the 
 Lord has forgiven me, — and if I can go up and walk over the 
 
174 EPILEPSY 
 
 dear little farm once more, I will tell all you want to know." 
 Then lie again spoke of his father's and mother's innocence, 
 and said he wanted then restored to the farm again. He 
 also declared that though under the control, for some time 
 past, of ''evil spirits," he was now entirely governed by 
 the spirit of Truth. After promising that if allowed to revisit 
 his old home, he would hold no consultation with the family 
 in German, his wish was complied with. On arriving at the 
 house he desired that some of the people present should 
 withdraw before he made his confession. He then asked all 
 present what they knew against him. And on being told, 
 made the following confess on : 
 
 "You, father (looking at his father), are innocent. (Here 
 the old man said 'tell the truth, Joseph.') The school house 
 below here was entered by me, some time ago, and a bad 
 spirit tempted me. to do what I did at the school house. I 
 did the damage in the School-House all alone. The evil 
 spirit tempted me to carry on much mischief. I plundered 
 the Jefferson School House alone, about midnight. A year 
 before this, I had no idea of stealing books. Some of these 
 were Sabbath Scho 1 books, and I found comfort in reading 
 them. The Leeds School House was robbed by me, and I left 
 a letter there by the inspiration of the evil spirit. I went in 
 the Red School House between Athens and Leeds, and left a 
 candle burning on the floor, and the candle burning down 
 set fire to the School House after I left — the same night that 
 I went to Leeds. 
 
 THE MURDER. 
 
 On May ist, the Scissors-Grinder came to the House. I 
 was down in the lot. We all talked in the house in a pleas- 
 ant manner. After supper father and mother went to bed- 
 Holcher went next. Then some very bad spirit entered into 
 me. I went to my room. I opened my testament to read. 
 Something seemed to force me to lay it down. I laid on my 
 bed and the spirit overcame me. I resisted the spirit and the 
 spirit resisted me back again. After I was completely over- 
 come I went outdoors and got a hatchet. The old man was 
 asleep when I went in his room. I think God has forgiven 
 
WITH MANIA. 
 
 J 7S 
 
 me, for I am now telling the whole I ruth. 1 went in slyly 
 with a low lamp, and set the lamp on the floor, and then my 
 conscience fought with all its might not to do the act, but 
 the evil spirit was stronger — I took up the hatchet and struck 
 Holcher on the head. He made but little noise. I struck him 
 first with the blunt end of the hatchet and then twice with the 
 blade. (Here old Mr. Waltz said, 'I heard a little noise, but 
 it soon stopped.') Holcher was still then. The man strug- 
 gled a little while and then gave up the ghost. I dropped on 
 the floor and laid there some time. I then got up alone, 
 passed the barn to the stone wall. I then put a few blankets 
 and stuff over the body. I left the body there all day. The 
 next night when father and mother were abed I placed the 
 body in a hole which I dug, and prayed over the grave for 
 the repose of his soul. I felt betier then. I had to conceal 
 all I could, therefore placed the body in the ground. I 
 cleaned up in the house and the sofa The old man (my 
 father) in the morning, thought the scissors-grinder had stolen 
 the missingblanket, and father went to Catskill andtold Char- 
 les Ernst of it. I found in Holcher's pocket a pocket-book con- 
 taining sixty or seventy dollars in papei — one fifty-dollar bill 
 ■ — and some silver coin. I took the machine down behind the 
 fence. I locked up his bell in my trunk: Three nights after- 
 ward I traveled up near Coxsackie afoot, and then placed the 
 letter on the telegraph pole, and left part of the broken ma- 
 chine, f wrote the letter the night befoie at home. I carried 
 the parts of the machine in a bag 1 intended to go beyond 
 Coxsackie, but was tired out. Part of the machine was 
 burned in the woods. His clothes and boots I put under the 
 barn for a spell, and after that I burned them. The various 
 books I had locked up in my trunk I read as much as I could. 
 I then put them in a box, and put them out of sight." 
 
 He now went out, and after wandering about the farm, fin- 
 ally pointed out the place where the body was buried. The 
 ground was newly plowed, and there was nothing that would 
 in anyway have caused suspicion about the spot. After the 
 inquest, Joseph was remanded back to jail, where he remained 
 nine months, waiting for his trial to come off. The first few 
 days of his sojourn there were spent in writing a fuller, and 
 
176 EPILEPSY 
 
 what seemed to him, evidently, a more satisfactory confession 
 of his crime. It reads as follows: 
 
 House of Bondage, ) 
 May 23, 1873. ) 
 
 My Dear offended and excited Friends ! 
 
 I beg leave to have some reconciliation with you, in order 
 that you may no longer be in any doubt of my truthfulness 
 in regard to the terrible, shocking, and infamous deeds that 
 I was forced by some mysterious power to do. You were al- 
 ready informed of the principal and most important causes of 
 all this agitation ; but it was an impossibility for me, or any 
 one else, to explain to you at that time, the minute, and at 
 the same time most indispensable details. The published 
 bills dated May 19 which were in circulation among you, were 
 incorrect, as were also the accounts given of my confession in 
 the various papers. I therefore found it quite necessary to 
 place before you the true and correct account of all my mis- 
 deeds and dangerous proceedings. Remember well, my Dear 
 Friends, that I am now speaking to you in a spirit filled with Heav- 
 enly Truth; which I received from God through the mercy of Jesus 
 Christ our Lord. 
 
 A STRANGE THOUGHT. 
 
 One day in January last, it seemed to me that there were a 
 great many people on earth who were consantly risking their 
 life and reputation in swindling, robbing, &deceiveing there 
 fellow-creatures, for verious reasons & causes. Since that 
 day it seemed to me as if something had planted itself in my 
 mind, that kept urging me forward to perform some grand, 
 heroic & enterprising feat, wether good or bad I could not 
 say. I tried to forget it but it was ever before me. I began 
 to lose much interest in my daily occupations, & the great 
 appetite for learning, & knowledge, & wisdom, which I had 
 was also lessened. My mind seemed to be clear; the main ob- 
 ject to which itwasnowturnedwas todo somethingwhollyout 
 of the common course. Accordingly about 2 days after I had 
 experianced this peculiar sensation I could no longer do 
 without causeing some commotion or excitement. That very 
 night of the third day I began 
 
WITH MANIA. 177 
 
 MY FIRST ROBBERY! 
 
 I arose from bed at about one o'clock a. m. making little or 
 no noise to awake my Parents who were asleep upstairs. 
 After taking a view of the weather through the window I 
 went out of doors It was warm but very windy. I went to 
 my room again, but could not think of going 10 bed ; I wan- 
 ted very much to rouse up something or somebody ; when 
 suddenly the thought came to surprise & cause trouble to 
 some one. I thought of going over to the house of my nearest 
 neighbor Jas. B. Goetchius, and throw large stones at the 
 door of his house & windows; when another thought flashed 
 across me to go to the Toll-Gate, about half a mile off, & do 
 something of the kind there, thinking the inmates would not 
 find who did it so easily. I put on my boots & started for the 
 latter in- all haste. As I arrived near the place I began to 
 lose much of my courage & sat down on a snow bank for 
 some time thinking. I was about to get up & go home & 
 leave all in peace, when I thought of the red school-house a 
 short distance further off ; my courage returned, & I was there 
 in a few minutes. I entered a window at the east side and 
 found the stove red hot & the room very warm; this fright- 
 ened me, thinking there might be some one dwelling in the 
 schoolhouse. However, I entered at last, and what I did 
 there you all know; I had just such books at home of my 
 own & could have no use for them. The reason that I took 
 them was simply to rouse & excite the pupils & teacher. 
 
 Seeing all remain quiet, I did the same deed over again a 
 short time after - This time leaving a note there containing 
 remarks such as threating their life & using very profane 
 language. Peace still continued & I was not satisfied. This 
 yearning & tempting was incessant. About a month 
 afterwards I started on another burglarious expidition. This 
 was the Jefferson Sunday School ! I entered it, forcing 
 open a blind on the south side, about two o'clock a. m. By 
 this time I began to feel some sorrow for these cruel acts & 
 began to read some of the most pious & best of the library 
 books I had thus obtained by theft They were indeed very 
 good books; arid having read the first one through, I began 
 to realize & perceive my great wickedness ; I was much corn- 
 
178 EPILEPSY 
 
 forted & read several more with good result. But I could not 
 feel easy; there was something at my heart: I could not feel 
 the authentic happiness that I used to, before I did this wrong; 
 in fact every thing on which I cast my eyes seemed to have 
 lost the third part of its real and genuine appearance. I 
 could not look an innocent person full in the face, nor could 
 I look at the starry heavens at night without much hesitation 
 & some celestial spii it seemed to sweep over me & remind me 
 of my guilty conscience when I made an attempt to kneel 
 down on the spot where I stood to pray to God; but there 
 seemed to be no faith in me, I could not pray as usual & be- 
 came very restless Sleep at night was not to be thought of. 
 My daily labors on the farm became very toilsorne and 
 disinterested. 
 
 From this time until the robbery at Leeds I have toiled on 
 with this crushing burden of sins, having made many vain 
 attempts to repent & do< penance or make an open confession. 
 One time I thought myself quite free from this evil power 
 over me, but this pease was of short duration. It again 
 seized me with great violence ! I became very warm & my 
 heart beat very quick and loud for a few seconds & all was 
 over again, except this unceaseing urgeing & tempting. 
 That very same day I was forced by this same power to think 
 of nothing but doing something very extraordinary. It seemed 
 as if I was to do something beyond my ability, When the 
 day was over, it occured to me very suddenly to rob and 
 burglarize the School-house at Leeds! It seemed as if some- 
 thing were telling me what to do; I wrote the leter that I left 
 at the school-house, after supper that evening, and by the 
 time my parents went to bed the letter was finished; when I 
 made preparations immediately & was surprised at my pres- 
 ence of mind in getting together the things I needed for per- 
 forming the criminal act. It was exactly as if I had been 
 inspired by an infernal spirit that was leading me directly to 
 the pit of distruction. I did not like to do it, I felt inwardly 
 the great wrong I was about to do, & made several attempts 
 to go to my parents & tell them of my troubled feelings, but I 
 was utterly helpless & was forced back. I then enedevored 
 to pray to the Lord, but all in vain; the evil power over me 
 
WITH MANIA. 
 
 179 
 
 was continually working against the earnest pleadings of my 
 conscience. I hastily took some matches & candles & skipped 
 swiftly across the meadows in the direction of the red school- 
 house, on the road between Athens & Leed.s. Arriving I 
 forced open the door & lighted a candle which I placed be- 
 tween two blocks of wood. Having seen all there was to be 
 seen & taking a broom a Bible & several small tracts & pam- 
 phlets I laid them behind the fence a little way off with the 
 intention of takeing them when I came back from Leeds, and 
 then left in haste, forgetting to go back into the school-house 
 to put out the light, which doubtless burnt down to the floor 
 between the two sticks of wood and ignited them, causeing 
 the ruin of the entire building! 
 
 THE SCHOOL-HOUSE AT LEEDS ! 
 
 The Moon having shown herself, through the trees and her 
 smiling maiden face seemed to be all in a blush and it seemed 
 as if she were casting her heavenly smirk and blushing smile 
 at me in derision and scorn. Every star in the celestial fer- 
 mament seemed to me in its aerial career, and winking at me 
 in such an earnest manner that I could not help thinking of 
 and feel ashamed, of my wicked intentions. I cast my eyes 
 to the ground and was greatly troubled; I sat down upon a 
 rock for some time: but obtained no rest: my brains weie all 
 in a burning blaze, I jumped up and resumed my way untill 
 1 came to the door in a corner, at the west side of the Leeds 
 School-house greatly exausted, and sat down ; for I had some 
 difficulty in finding it, having been very little acquainted with 
 the place. It was twelve o'clock when I rose up where I sat, 
 and then, with might more than man's, 1 threw open the 
 door & entered, closed it again, & commenced to examin and 
 scope the whole school-room, and left it in the confused state 
 in which it was found in the morning. It was nearly daylight 
 .when I arrived at home and when I passed the red schoul- 
 house, the smoke & flames were seething through every win- 
 dow & hole in a frightful manner. I skipped across the 
 meadows like a centaur, with the heavy bag of books bell 
 &c, useing the broom of the burnt school-house for a walking 
 stick. "Verily, the way of the transgressor is hard." When 
 I got home to my room, it was necessary to begin my secret 
 
l8o EPILEPSY 
 
 work afresh ; for every thing was to be hidden & locked up out 
 of sight of my parents. When all this was done I had to ap- 
 pear at my daily work, as usual, on the faim, which was all 
 but an easy one. 
 
 From tli is time my mind was somewhat appeased, but i 
 felt a heavy burden, as it were, continually pressing me to 
 the earth ; as if I were to &ink through it ; there was no 
 strength in me, all my former cheerefulness & bouyancy was 
 gone. In my ambulations and conversations with my parents 
 and friends, I felt as one who had been in great peril & dis- 
 tress, and my lethargic impulse often causeing me to drop 
 down where I stood, for which reason I kept myself as much 
 as possible alone. As I could get no sleep or rest at night, I 
 spent many a dreary one in eraseing & effacing the verious 
 names in the stolen books. 
 
 Some time after this my sorrow for what I did became very 
 great. I had a strong desire to go immediately to my Spirit- 
 ual Director, Rev. E. O'Driscol, Pastor of the Roman Catho- 
 lic church of Catskill and to Mr. A. M. Osborn, Councilor at 
 Law, of Gats-kill, — and confess to them my whole secret. But 
 to my ruin & distruction as ill-luck would have it, I found, by 
 this timea glou-ing account of my evil proceedings in the 
 Catskill Recorder; which was probably the reason that I lost all 
 desire to make an open confession of my guilt, for it was 
 stated in such a singular and inciteing manner that it seemed 
 to relieve me of my sorrow & distress, and rouse up the old 
 desire to do further mischief. I dropped the paper from my 
 hands, and sank back in the chair, & was greatly vexed & 
 troubled. I then read my Missal & was much comforted, 
 after which I read in the New-Testament, the fourth, fifth, 
 sixth, seventh & eighih chapters of St Matthew, and retired to 
 my night's rest, much relieved of my uneasiness; but my 
 great sins could never be hidden or droped from my mind, 
 and a spark of this intense desire to perform some unnatural 
 exploit, was still smouldering in my brains, & at times great 
 fears would steal upon me, shaking me from head to feet. At 
 one time I had a desire to leave my parents & go to some 
 strange part of the country & keep myself concealed for a time 
 to see if this evil power would not lieve me, or what it would 
 
WITH MANIA. l8l 
 
 make of me, or wether it would cause me to injure myself or 
 any one else. But we had so much work to do, that this was 
 impossible. And so I toiled on with my parents who thought 
 of nothing but pushing forward the many different things 
 that were to be done before the regular planting time had 
 come. 
 
 Thus we were engaged, when about the last of April we 
 were visited by an old friend of ours, who went about some- 
 times in the spring as a Sissors-Grinder. He was an honest 
 upright man respected by all who knew him. He lived as 
 long as we knew him in the City of Albany. He was always 
 very kind and friendly to us, and w e were always on eaqually 
 good terms with him and his family for several years past. 
 As we always did before, we gladly invited him on this evening 
 to supper, & that he could pass the night. with us, and that he 
 might think himself at home which he said he did. During, 
 and after supper, we had kept up a pleasant & delightful 
 conversation with each other as is usually the case with true 
 friends that have not seen each other for a long time; and in 
 this way was that evening passed untill bed time, which was 
 about nine o'clock, when we showed our friend to bed which 
 was on a sofa on which were placed some quilts & blankets for 
 a covering. Myparents then bidding him good night, left him 
 and retired to there place of rest which was up stairs. I was 
 now the only one up and sat down by the table & read the 
 "American Agriculturist" for about half an hour when I felt 
 sleepy, and was about to enter my room, when suddenly 1 
 was aroused, from all sleepiness, by this strong sensation in 
 my mind to execute some uncommon or unnatural, and inhu- 
 man juggle! The power was much stronger and more sudden 
 than I had ever experianced it before! I wanted to relieve 
 myself of it, but I was utterly helpless. I began to become 
 very hot, my ears were ringing & my heart beat very quick 
 & loud for a short time & the hair on my head seemed to be 
 standing upright. All this lasted hardly a minute when I 
 began to become cool again, and every thing was very quiet. 
 I took up a small Testament & began to read; I had scarcely 
 finished the first verse, when some violent & electric force 
 swept past my face, but without any noise whatever. (It was 
 
102 EPILEPSY. 
 
 like a flash of lightning if it could have been directly before 
 my eyes, and without any noise) causeing me to drop my arm 
 & book with a loud clap on the little table before me! I 
 began to shake and tremble in every limb, great fear seized 
 me for a little while, after which every thing seemed to run 1 
 into my brains, I sat a few moments on my bed in great con- 
 fusion, than I went out of doors, lamp in hand & searched 
 for an axe or hatchet & went back to my room, and there, for 
 the first time in all my life, a strong feeling to kill or strike 
 some one on the head with great force, came to me! I 
 was tempted by some demon or evil spirit, (for I could not 
 perceive what else it could have been, that should exercise 
 so strong & evil power over me.) I could think of nothing 
 but of striking some fellow-being on the head. Had some 
 one been with me at that instant it would have been danger- 
 ous for him ! A great blow at somebody's head or brains at 
 that moment, was my greatest desire ! I pressed my fore- 
 head against a pane of glass, thinking the sudden cold would 
 have some effect in producing a differant sensation, but all in 
 vain; I turned down the lamp very low, took up the hatchet 
 and entered the room of my friend, the Sissors Grinder; who 
 was sleeping soundly. I placed the lamp on the floor directly 
 below the head of my inconsiderate and now unsuspecting 
 friend. I then cautiously bent over the form of the uncon- 
 scious sleeper to see in what position his head lay. I took 
 the hatchet & raised it up to the hight of the ceiling & was 
 about to deal the deadly blow, when the inward pleadings of my 
 conscience warned and caused me to withhold the blow! ! ! 
 
 I was about to turn away and leave the man in peace when 
 I was again seizeed by the Demon & was forsed to raise the 
 hatchet and give the fatal blow: but it seemed as if the 
 strength and force of the blow that I was about to implant in 
 the head of the peaceful sleeper, had all entered into the 
 handle of the hatchet. I withheld the blow, took up the 
 lamp & hatchet & went back in my own room greatly troubled 
 in mind and spirit! I was about to give a loud scream, but I 
 had no strength for it. I sat there as helpless as a babe, when 
 all at once, a painful thrill or sting pierced my heart & brains 
 and roused me up like a mainiac. I took the lamp & hatchet 
 
WITH MANIA. 183 
 
 up once more, and entered the room of the sleeping man 
 placing the lamp where I did before, and raised the hatchet 
 quickly, but my heart failed me! My forehead became wet 
 with perspiration, & I stood there in delirium swinging the 
 hatchet up & down above the head of the man, when at 
 length, as if inspired by some satanical power anew I struck 
 the man on the forehead! but the blow seemed to have no 
 force as I delt it. He breathed with a deep noise, and doubt- 
 ing of its fatality I struck him twice with the cutting part of 
 the hatchet not knowing for sertain where I hit him, and 
 sank fainting & senseless on the floor where I must have laid 
 a long time, when consciousness returned, and I beheld the 
 dire Scene, the mangled body, the pools of blood, and the 
 aweful thought of murder! I sank back again with a feeling 
 of pain and horror which is impossible to describe! I then 
 arose with a terrible shock from where I lay, and opened the 
 door of this room, and the outer one very slyly, and found it 
 raining & very dark. I wanted to go off and cast myself into 
 a deep hole, or in a bottomless gulf and bury myself out of 
 sight of the world ! I could not bear to return to the room 
 of the dreadful sight And I could not bear to think of leiting 
 my parents see and know of the horrible deed: 
 
 With these thoughts I walked back & forth in the rain in a 
 very confused or deranged manner, for some time ; then, with 
 a fierce an energetic perception in mind & body, I went to 
 the dismal room, took up the Corpse between my arms, 
 (which seemed not much heavier than a child) untill I came 
 near the barn when my load became as so much lead, I still 
 kept on, thinking I should not have the courage again to 
 take up the body, should I lay it down! when at last I laid 
 it down beside a low stone fense, and dropped down besides 
 it so much excited & worried that it was with much difficulty 
 I retained my breath. I thenwraped the body in the blanket 
 and laid many small flat stones around it to conceal it, lisped 
 a short prayer, and departed to the house, and there in all 
 haste I began to clear off and erase all visible traces of blood 
 about the room, and carry the boots, coat, hat &c &c. off 
 under the barn where they remained during the following 
 day, the machine I also can ied off and placed it behind a fence 
 
184 EPILEPSY 
 
 in the bushes and covered it up with brush and stones. It 
 was now begining to dawn in the eastern sky and as I began 
 another search to clear off all marks and trapings of the man 
 I found the quilt and pillow on which he lay stained with 
 blood ; I took them up and carried them off near to the place 
 at the wall where the body was concealed, and hid them there. 
 
 I then went to my own room and found the man's bell 
 standing on the floor outside I took it and locked it up in 
 a trunk, closed the door of my room and went to bed, I was 
 there but five minutes when my parents came down and began 
 there work about the house & barn as usual; I got up again 
 and went to the barn to help feed the stock, when my father 
 asked me, "What it was that he heard some time in the night 
 as if some one were gargling or breathing with something in 
 the throat." I told him that I heard it too, and that I could 
 not account for it, and that it was probably the habbit of this 
 man to do something of the kind, as he told us the previous 
 evening of his having a bad cold. — (This answer seemed to 
 produce my desired effect and ease on my father, which I 
 could easily read on his face, and as he answered in a kind 
 of heedless way,) "very likely, he always seems to have some- 
 thing in his throat." — When he went on with his work, 
 making some remarks about the beautiful morning and of 
 the fine rain we had during the night. And now the thought 
 came to me of my wicked lie and of having thus deceived my 
 good honest father. 
 
 Every thing passed off quietly untill breakfast time when 
 mother came to the barn, much surprised, and told us that 
 the Sissors-Grinder had gone or deserted us, for his machine 
 and every thing was gone she could not think otherwise. 
 We all went down into his room in surprise. As we opened 
 the blinds and the full light of day shone in, we saw faint 
 traces of blood about the floor and on one of the blankets, 
 when my parents became greatly excited and when they 
 found the blankets, quilt, and pillow missing, they were 
 astonished beyond measure. They looked at me and found 
 me in eaqual surprise, (for I kept all the while imitating 
 there own looks & actions.) They then made up there minds 
 that this was a bad man and had taken the quilts & made off 
 
WITH MANIA. 185' 
 
 with them thinking that perhaps he had injured himself in 
 his attempt to go away in the dark. And such were there 
 thoughts for a long time. Father, thinking it impossible for 
 him to carry so many things went in search for him along 
 the road toward Athens but he could find no trace or vestige. 
 We had to much work to do to spend any more time search- 
 ing for him or the things my parents thought he had carried 
 off. But father was determined to have the thing settled, if 
 he would have to go to Albany himself to find him. He went 
 to see Constable Ernst of Catskill and told him of the 
 strange affair. But all remained quiet and I began to think 
 myself clear of all suspicion. 
 
 When night came and my parents were to bed I took some 
 tools and began digging a grave in such a manner and on 
 snch a place that it would be impossible to find it again, and 
 then went up the hill uncovered the body by the wall and 
 wanted to lift it up but to my astonishment I could not stir 
 it! I stood back stupified with horror! I went to the barn 
 and got a strap of conciderable length, and passed it around 
 the corpse and began to pull with main force. I succeeded 
 in moving it about a foot from the spot when I again attempt- 
 ed to raise it up but with no better success. I then went after 
 the wheelbarrow and after many efforts of main strength I 
 placed it at last on the barrow and wheeled it down to the 
 final grave ! Having laid it carefully in and wrapped it in 
 the blanket, I knelt at the end of the grave & prayed for an 
 hour & a half to God for the protection and repose of the 
 soul of my friend whom I had thus caused to leave this world 
 unprepaired and without a last look or parting word to his 
 bereaved and afflicted Wife, and children, and friends. This 
 being done I covered up the remains of my friend in great 
 sorrow, in the name of the Father and of the Son and of the 
 Holy Ghost, and proceeded to the house and found it to be 
 three o'clock. Knowing it was useless to try to sleep I went 
 to the barn, pulled out from under it the coat boots jacket 
 &c. &c. which I put there the night before, finding a hand- 
 kerchief, I spread it on the ground before me, ane placed the 
 contents of the pockets in it as I found them ; and went to 
 examin them, and found a silver watch a pair of spectacles a 
 
1 86 EPILEPSY 
 
 pocket-book and a small parcel containing some silver coin, 
 some razors watch-keys &c. &c. I found in the pocket-book 
 a fifty dollar bill, some fives, and smaller bills, amounting in 
 all to $82 with the silver coin. I then locked everything up 
 in a trunk & went up to the barn again took up the cloths and 
 carried them down the lot and hid them. What I did. then, 
 I do not know to ^this day for the Sun was shiuing and I 
 found myself sitting at the foot of the grave of my departed 
 friend in a very broken hearted condition ! With great efforts 
 I managed to get up, and trudged with great weariness to 
 the house, I found my father already feeding the cows and I 
 walked past unnoticed, when I got to the house I heard 
 mother in the sellar, and I slipped quickly into my room un- 
 noticed by either of my parents. 
 
 The hardships I endured were many and great, for to be 
 working hard throughout the day and than still harder 
 through the whole night is certainly going a little too far, 
 regarding the frailties of Human Nature. Yet such was the 
 course I had been taking, and, at a fearful rate, bringing 
 death and distruction to my body and soul. I could not 
 sleep, eat, nor pray; and, fatigued and weary as I Was, this 
 perpetual craveing and intense desire to outdo myself in 
 something that would exceed the powers or laws of nature, 
 was continually robbing me of all peace or rest, were it not 
 for this Power I would have been as a dead man. 
 
 When the long and tedious day drew to a close I wrote a 
 letter by the influence of this same visionary agent, and was 
 astonished, not a little, when I read it to myself. I then 
 tried to copy it on a separate paper, but when I had it half 
 finished I dropped to the floor with a loud ringing and sibi- 
 lant sound in my head, where I must have been during the 
 night, for in the morning I found the little table upset 
 against the bed and myself leaning against the door with a 
 chair over me! when I endeavored to get up I could hardly 
 bend a finger or limb, being as rigid and inflexible as death. 
 Thus I lay helpless untill the firey thought returned, to per- 
 form the grand imposing, or majestic work, moral or tragic ! 
 Before this thought every morbid feeling fled, my hands 
 became red as fire and with some pain in straightening my 
 
WITH MANIA. 187 
 
 arms and back I arose. I wanted to be off. I could not bear 
 to think of sitting down to read or pray, my mind was ever 
 wandering on the one great object ahead, and what this was, 
 and how I should proceed to find, or get at it, is the one 
 great question to be solved ; and to which I must attribute 
 the cause of all my aberant misdeeds. I felt after I had killed 
 the man that it was not the great deed I wanted to do, for I 
 was greatly disgusted and terror-stricken, and overcome with 
 sarrow and grief for having caused the untimely death of my 
 friend! and had lost all thoughts and desires of ever doing 
 so aweful and terrible a thing! When this burning and 
 tempting power had taken its first grasp on me I began to 
 forget many things that I intended to do on the farm and 
 lost all pleasure and interest in work or amusements of all 
 kinds. To do one very grand thing, my whole soul and body 
 seemed to be turned and based on. I could think of nothing 
 but this, day and night, and would, at different times, be so 
 overcome and excited that I would go off in haste and confus- 
 ion to the woods, and walk about there as one in a dream. At 
 other times I would drop down whereever I was; (this was 
 most always late in the evening) and would remain there be- 
 numbed for whole hours, and two or three times I found my- 
 self sitting or lyeing in such places in the morning, where I 
 must have dropped down without knowing it in the evening. 
 The Sun went down once more, and I returned home from 
 the labors on the farm very tired and dejected, and after a 
 little supper that I forsed down with great exertion, I took 
 my hunting bag and went back down the lot and dug up parts 
 of the hidden machine and other things belonging to the 
 "lost" man, went back to the house and sat down waiting for 
 my parents to go to bed, and then took my night's rest in 
 marching to Coxsackie, I took the letter, a revolver, some 
 powder & caps, and left, arriving by eleven o'clock at Aihen=, 
 and at three o'clock at the telegraph pole where the trap- 
 pings and letter was found. I climed the pole by aid of the 
 ever urging force, for when there was any adventurous, dnre- 
 ing, or enterprising act to be done this drendful and evil force 
 roused me up so that it seemed as if I might do anything be 
 it ever so difficult or great. The wire I cut apart, thinking it 
 
l88 EPILEPSY 
 
 would strengthen the belief that the deeds were performed 
 by the "fictitious" band of highwaymen. I then posted the 
 letter and returned my wear}- feet and heavy heart home- 
 ward, and then, Oh ! my Dear Friends ! the sarrow and grief 
 I felt for my great wrong is impossible to describe ! I thought 
 of the snowbank where I sat, near the Tollgate, where I was 
 about to go away and leave all in peace, a few months before ! 
 I could not, myself believe that I could have done all these 
 aweful crimes, when just a few months before I thought my- 
 self a true and faithful Child of God, having my greatest de- 
 light in praying to Him and thanking Him for His goodness 
 in giving us so pleasant and peaseful a home with many good 
 friends and kind parents with whom it was my greatest de- 
 sire to be, and obey, help protect and comfort them in their 
 declining years! Oh, my Home, my Dear sweet Home ! that I 
 • should thus forsake thee ! Thy very rocks and stones were my 
 delight to see. While every plant and shrub and tree, re- 
 ceived its diligent care from me. Oh, the time, when I never 
 had one thought, one wish, beyond my pleasant farm ; and 
 now when I now looked back, with a clear mind, upon the 
 dreadful, terrible, nefarious, transgressions, was filled with 
 amazement and dread, and could not feel or think otherwise 
 than of being deranged or over-powered by demons ! 
 
 When the day was over again I went to bed very earl)- and 
 wanted a good rest, but so many strange thoughts of the 
 past and future came chacing each other in such quick suc- 
 cession that I became very hot and restless T got up feeling 
 very dizzy, and went to the grave of the "lost Man," and 
 prayed ; when I must have been overcome by the great fati- 
 gue and sleep, for at about four a. m. I awoke sitting in a 
 very awkward position at the end of the grave ! this was not 
 the only night I passed in this way, for my sarrow, became so 
 great, the burden of sins so heavy, and my wounded spirit so 
 restless, that I did not know half the time what I was about. 
 I often walked off a little way and then turn suddenly around 
 and go back again to the spot and wanted to do something 
 but never could think what. 
 
 But I can never tell you all the many strange thoughts and 
 odd freaks that came across me at different times, and must 
 close with a few remarks on 
 
WITH MANIA. 189 
 
 THE INQUIRY AND SEARCH. 
 
 In this way about two long sorrowful weeks slid by, and all 
 seemed to be in pease but myself, and about two or three 
 times I was roused up by the dreadful firey force that seemed 
 to fill me with so eager and ambicious a desire that I wanted 
 to go off alone to some solitary island or forest and do some- 
 thing uncommon or very great ! at such times I would be 
 very restless and dissatisfied with everything. The power 
 was always the strongest at first when it would gradually de- 
 sist, and I would become cool and more easy, and the great 
 sarrow and sadness would return, for the great wrong I did. 
 
 We were hoeing strawberries on a fine day west of the barn, 
 when a Lady fallowed by a Gentleman came to us and in- 
 quired wether we had seen nothing of her husband whom 
 they said had not returned from his trip down the Hudson 
 where he went about with his machine grinding scissors; my 
 father told them that he had spent the night with us, and 
 then asked them how it was that he came to go away in the 
 night or morning, and continued that had taken with him a 
 quilt a blanket and pillow and lieveing his bell here. 
 
 Then the woman became greatly surprised, and assured us 
 that her husband would do nothing of the kind. It being 
 now my turn to say something, but I was in an utter loss what 
 to do or say, with some trembling and hesitation I told them 
 that I could tell them no more than they already knew, and 
 squat down nearly fainting and pretending to pick some 
 weeds ! as soon as I regained my strength I went toward the 
 barn trembling with fear from head to foot, when I was re- 
 quested to show them the bell, I hurried to the barn and hid 
 myself, for I could not appear before them in such a broken- 
 hearted condition ; after awhile I summoned up my courage 
 and went to the house, but found they had gone and my father 
 censured me for not appearing with the bell. The rest of 
 that day my parents were greatly excited, not knowing what 
 the young man and the lady ment by there insulting look and 
 rash disappearance ! The following night when all was quiet 
 I took everything in my trunk which belonged to the lost 
 man and hid them at diverse places ; the books &c I placed 
 
190 EPILEPSY 
 
 in boxes and burried them also. A day or two after this, the 
 search began ; the officers, D. P. Bennett, Chas. Ernst & 
 others finding the floor and sofa stained with blood, they im- 
 mediately suspected me of having killed the man. I wanted 
 to "own up," and tell them the whole truth on the spot, but 
 I had not the courage, and knowing it was impossible to ex- 
 plain to them at the instant, of the dreadful power under 
 whose influence I was rendered so confused and helpless, 
 that I began to defend myself in telling dreadful lies, that 
 gave me such a pain within, that I came near fainting several 
 times. From this time I did nothing but lie ! from the high- 
 est Officer down to the truest friend ! Oh ! the dreadful sting 
 my soul received as I again denied my guilt before the ven- 
 erable Justice ! My brains were fortunately at this time 
 quiet from the aweful burning power, and I could see and 
 feel the great wrong I did in telling the dreadful lies ; but 
 having decieved the officers first, was obliged to speak the 
 untruth to the end! Thus was my dear innocent father taken 
 with me, for the first time in all our life into bondage ! as I 
 entered the iron-bound cell, a feeling of peace and ease came 
 to me such as I had not felt for a long time ! I thought of 
 the quiet woods or island where I would like to have gone, 
 when I was overcome by the terrible tempting power to out- 
 do myself. At those times I had no fear of death or anything 
 frightful ; and if I could have got at the grand object in pur- 
 suit, I would have willingly risked my life and all to bring it 
 to perfection. 1 sat down on the bench that stood in the cor- 
 ner of the cell and thought of the great battles and hardships 
 that I undeiwent these past few months, together with the 
 great wicked deeds that I performed, to still and quench the 
 burning desires of this tartaren Tempter ; the great distress 
 and affliction it brought to the family of the murdered man, 
 the great excitement, confusion, and sarrow it brought to my 
 father and mother, my sister and brother, and all our dearest 
 friends, should you be surprised, reader, when I tell you that 
 I felt more relieved and comforted than I ever did before 
 since the evil spirit seemed to have planted itself in me ? 
 Aye, just such was the state of mind as I sat there in the cell 
 contemplating on the terrible subject ; I knew that there 
 
WITH MANIA. 19I 
 
 would soon be an end to my great sufferings which I endured, 
 at those times when I was roused up by the formidable fiend. 
 Death or the gallows were as nothing compared with the 
 great fears and confused and firev desires that possessed my 
 mind at those times ! In this peaceable way or state of mind, 
 I passed nearly two days without once thinking of confess- 
 ing my great wrong, or the many lies I had spoken. When 
 Sunday came around, a thought came to me for once in a 
 long while, to pray. I did so, earnestly, and was much soft- 
 ened. My sins became much more conspicuous before me, 
 and a faint voice within kept constantly telling me to pray 
 more ! I spent the whole Sunday as long as I could see in read- 
 ing and praying from a testament and prayer-book. When 
 night came I knelt down and with a firm faith in the mercy 
 of Christ Jesus ; I beged of God to send forth His Divine 
 Grace and receive my earnest supplications in return. I 
 prayed without ceaseing and soon found that I was heard for 
 such a mild and. Heavenly Peace seemed to descend upon me 
 as if it came from the very Throne of my Heavenly Father. 
 I was greatly strengthened with this Divine inspiration and 
 prayed on with great faith and confidence in the goodness 
 and mercy of my Lord, and Savior Jesus Christ. My very 
 soul rose up in gratitude to God for His Divine grace and 
 mercy ; and I continued beging Him to send the Heavenly 
 spirit of truth unto me, and cast out the great evil Foe that 
 had exercised so aweful a power in my mind, as to render 
 me so helpless and insensible in my excited actions. I 
 prayed for this last, in great an earnest for a long time ; 
 knowing that if J^esus would he could make me whole. A 
 sudden flash came before my eyes and at the same instant 
 felt a kind of contraction in my brains fallowed by a painful 
 sting that caused me to drop to the floor in a half senseless 
 or faintish swoon. And then, Oh, my dear reader, if I could 
 but explain to you my feelings when I returned to conscious- 
 ness that night ! I felt so free from pain or distress, my heart 
 was so light my mind so clear, my spirit so cheerful and 
 quiet, that I could not but think I had arrived"in the Lnnd of 
 Eternal bliss. I" - could not believe that I was surrounded by 
 sheets of iron ; I arose to find out if I were really in the cell 
 
192 EPILEPSY 
 
 I had been placed, for it was very dark, my whole frame 
 seemed so nimble and elastic that I thought I had slept for a 
 century. As I moved a few feet from the spot with out- 
 stretched hands, I felt the iron bolts and bars of the prison 
 window, I returned and -droped down on my knees and began 
 to pray in all earnest. I seemed now to be in my original 
 clear senses, and this dreadful, vehement desire was gone, for 
 I felt no tempting or urging of any kind, or any evil thought 
 to do wrong or lie ! My whole soul and mind was directed to 
 my Lord and my God. I went on praying fervantly, beging 
 of God to dense me from my great sins that I committed in 
 my helplessness and burning excitement. I prayed for 
 strength and courage to confess and explain to my friends all 
 my wicked and secret doings. I found my request granted, 
 and had a firm belief that my Merciful Father had restored 
 me to my former good senses and peasefulness ; and should 
 you, my dear friends, hiss, sneer, or make a mockery of me, 
 when I tell you that I have been forgiven? and that my good 
 Heavenly Father felt pleased with my faithful and earnest 
 prayers and true sarrows ? "Oh, no," I seem to hear you 
 say, — but say what you will : Jesus said to his Disciples, "I 
 say unto you, that likewise joy shall be in Heaven over one 
 sinner that repenteth, more than over ninty and nine just 
 persons who neednot repentance." It was now just daybreak 
 and I sat down on the bench and thought for a while how I 
 should proceed to reveal my secret, I knew the hard and mer- 
 ciles Officers would put me to death or have me chained in 
 some gloomy durgeon, all out of sight of the universe I was 
 determined to have a last look on my dear farm and country. 
 I accordingly requested of Sheriff D. P. Bennett and J. H. 
 Meech the permission and liberty of going to the farm accom- 
 panied by father ; promising them that I would throw the 
 full light into the whole mystery, but they coldly refused to 
 do anything of the kind, telling me that such a thing was not 
 allowed ; I turned back and sat down much discouraged at 
 such an irony refusal. Thus I sat dejected when they re- 
 turned some time after, with other officers, and gave there 
 consent that I should accompany them to my farm. The day 
 was pleasant and as we arrived, the eager crowd of spectators 
 
WITH MANIA. 
 
 193 
 
 began nocking around us and would stare at me like tigars 
 that were ready to swallow me up at the first signal. I went 
 to the house to make some necessary arrangements about my 
 dress for conveniency's sake, and proceeded to take a walk 
 about the farm, fallowed by many of the agog young gallants, 
 whose only thought was to obtain a clue to the mystic cir- 
 comstance. Having returned we went to the house and there 
 as I sat down without having revealed anything, and asking 
 them what proof or testimony for evil they had against me, 
 the Officers began to think that now as I had seen that noth- 
 ing much had been discovered to threw the guilt on me, I 
 had outwited them, and would not tell them at all. But ler 
 me assure you, Gentlemen, that such were not my thoughtst 
 I would have made my full confession, had you nothing 
 against me whatever ! The Heavenly Spirit of truth was in 
 me, and my gratitude to God for His Divine power andgood- 
 ness, for casting from me the inexorable raveing Power, 
 would not permit me to speak another falsehood if I were "to 
 lay down my life on the spot ! By this same Divine truth I 
 have now told you, my friends, of this whole mournful event. 
 And I am, by the grace of my Heavenly Father, that I re- 
 ceived through the Mercy of His only begotten Son Our 
 Lord and Saviour Jesus Christ, prepared to die, and prepared 
 to live, in Blessed Pease. And the Lord jfesus our Advocat has 
 assured us, even with an oath, "That all sin shall be forgiven unto 
 the sons of man :"• — that is, if with hearty repentance and true faith 
 they turn unto God. 
 
 — In the matter of Waltz: Some of our exchanges have 
 fallen into the error of supposing that he has been in the 
 habit of reading trashy novels and sensational newspapers. 
 Whereas he flatly denies ever having read such, and Mr. 
 Walton Van Loan says he never bought any dime novels, or 
 any of that class of papers. The Hearth and Home and the 
 Agriculturalist are the only publications he was wont to read. 
 It seems to have made little difference what he read, whether 
 the above papers, the Recorder, Sunday School books or the 
 Testament. He always (by his own showing) continued to 
 advance in his progress from deviltries to misdemeanors and 
 crimes. 
 
194 EPILEPSY 
 
 Concerning his condition while in jail, the pastor of his 
 church, (R. C.) says that during his visits to him there, he 
 observed at times unnatural appearances' about his eyes. The 
 first time he saw anything strange was about the last of June. 
 On one occasion, when he went into the cell, Joe was walk- 
 ing around feeling about with his hands, his eyes were wild 
 and wondering. One sleeve of Iris coat was in 'shreds." 
 When he asked him what the matter was, he shook his 
 head and looked up, but said nothing. He then asked him 
 how his coat came so, but he made no answer. On four oc- 
 casions, between the first of July and the middle of Decem- 
 ber, the priest declares that his "conversation, actions, ap- 
 pearance and eyes were wild," and that he could not get an 
 intelligent answer from him at these times. That he was in- 
 coherent, spoke of an "sland in the Sea," and said that dev- 
 ils, evil spirits and serpents were after him. All his efforts 
 to quiet him and give him spiritual comfort and relief were 
 unavailing. The son and wife of the under-sheriff, who had 
 charge of the jail till January, 1874, testifies to the fact of 
 his having these spells while under their observation. She 
 says that he was there some six weeks before she discovered 
 anything very strange or unusual about him. These "spells" 
 were all, more or less of the same character. They occurred 
 at intervals of three or four weeks, and seemed to increase 
 in frequency as the winter approached. The premonatory 
 symptom was usually a refusal of food. At one time he went 
 between four and five days without eating, he would then 
 either be gloomy or silent, or would have a paioxysm during 
 which he would be noisy, destructive, and, apparently mania- 
 cal. In the beginning of October he passed through an espec- 
 ially excited period lasting some four or five days. Though 
 while in this state he took no nourishment his strength was 
 almost superhuman, and "no demon could have raved or acted 
 worse." Between his attacks he was often "bright" and 
 pleasant in conversation, but he seemed to manifest little in- 
 terest in his approaching trial. 
 
 While in jail he wrote a great deal of verse, sending man 
 "Odes," etc. to different persons. The Testimony of the 
 District Physicians who examined him while in jail, though 
 
WITH MANIA. 
 
 '95 
 
 their opinions varied, and are of little worth, concerning the 
 genuineness of his insanity, is useful in affording an idea of 
 his physical condition. One of them stated that in his ex- 
 cited periods, he found that the pulse was much accelerated 
 and that the temperature varied from one to three degrees 
 above the normal standard, while in the comparatively lucid 
 intervals these were natural. He was also thoroughly exam- 
 ined physically, and physicians declared that, though this ele- 
 vation of pulse and temperature was present, the man was en- 
 tirely free from all diseases of the heart, lungs, kidneys, stom- 
 mach, &c. The general character of the attacks, they ob- 
 served, were similar to those already described, as testified to 
 by others. They were preceded by refusal of food, and char- 
 acterized by delusions concerning spirits, devils, &c." 
 
 One of the means they employed to test the sanity of the 
 man was the introduction into his cell of a printed list of 
 " false symptoms of insanity.'' This he was claimed, by the 
 deputy sheriff, to have followed in his manifestations after- 
 wards. This paper was excluded from the evidence inasmuch 
 as it was doubtful if he ever read it. He was often in a stupid, 
 sullen condition, when it would be difficult to arouse him, or 
 get any reply to questions. At other times he would be 
 noisy, and rattle his chains. When asked the reason for this 
 behavior, he would, sometimes, say, after much urging, 
 "spirits; bad spirits." At these times his hair became stiff 
 and bristling, his eyes were generally cast down, and closed ; 
 and when, with difficulty, he was made to turn them towards 
 his visitors, their expression seemed wild and like one in 
 great fear. His chief agitation seemed to be about the evil 
 spirits tormenting him, tho'ugh at one time he said that 
 keeper Ernst, the man he afterwards killed, carried a pistol 
 around with which he intended to shoot him (Waltz). 
 
 When not in these "spells " he was almost constantly en- 
 gaged in writing prose and doggerel verse. He was often so, 
 that he manifested no concern as to consequences that would 
 result from the enormity of the crime with which he was 
 charged. At other times he would make statements similar 
 to those made in his written confession. 
 
 During: his trial he was generally quiet ; indeed, the hand- 
 
196 EPILEPSY 
 
 cuffs were ai 5rst removed from him, though one afternoon, 
 as the trial approached its close, he was said to have been 
 violent and troublesome. As bearing upon the question of 
 his feigning insanity, the theory held by the prosecution, the 
 following statement of Judge Westbrook was claimed by the 
 Governor to be of importance : 
 
 On the first day of the trial he was furious in the court 
 room. That night one of the local physicians told him that 
 he was hurting his case, and from that time to Thursday noon 
 of the second week, "Waltz was quiet and peaceable. He as- 
 sumed through the trial an air of quiet indifference. As he 
 sat directly in front of me, so that whenever I raised my head 
 I could see him square in the face and detecting frequently, 
 as I thought, a most anxious look toward a witness or the 
 jury; at noon of Thursday I requested the doctor to tell him 
 that his behavior was almost too good, and that it would be 
 better for him to show some symptoms of insanity. This was 
 done, and when Waltz came into the court that afternoon and 
 the next day his acts of fury were repeated." 
 
 Whether or no this be a mere coincidence observed in the 
 constantly varying condition of epilepsy, and of epileptic 
 mania, or a deep premeditated purpose to deceive, we think 
 those who have had much practical experience in this mat- 
 ter, will, in view of all the testimony in the case, have but 
 little difficulty in determining. It is well known, however, 
 to all such, that insane people are often extremely cunning, 
 and will, at times, like the sane, feign for a purpose. 
 
 Waltz had nearly covered the walls of his cell with 
 drawings of flowers, balloons, heads of men and women, and 
 many meaningless and fantastic figures ; and scraps of poetry, 
 for example — under a flower pot full of many different col- 
 ored flowers — was written . 
 
 " Dear Union Flag, within whose spell 
 I find a safe defence from Hell, 
 Nor Lion's face, nor demon's guile 
 Shall break my flower pot the while." 
 
 Written in all the colors at his disposal, each word being 
 of a different hue from the one next to it, was this : 
 
WITH MANIA. 197 
 
 " Far up in the moon no bad spirits go, , 
 
 And as it will make a bright home for this Joe- - 
 For there I'll see God and the angels no doubt, 
 And so I must go — my dear friends let me out. 
 
 And now let me shake off this slumbering trance, 
 And kill every devil, and onward advance, 
 For my spirit is like an inflated balloon, 
 In which I am going to sail to the moon. " 
 
 Then the following, the stars are in red and the letters in 
 black and blue : 
 
 # * ^ # ********* 
 
 * * * * * * 
 
 * Earth * * Hell * * , Heaven * 
 
 * and * * and * * and * 
 
 * Life. , * Death * * Eternity. * 
 
 * » [Here.] # * [Below.] * * [Above.] * 
 
 * * # * * * 
 
 *„* ************ ********* 
 
 A big red sun, with a lugubrious face in its centre, had 
 written across its rays : 
 
 Sobians, feel thy power 
 At midnight's darkest hour, 
 Thou gentle sun. 
 
 And under a star close by the sun : 
 
 Sabians, fill thy power, 
 Which makes these spirits cower 
 Thou brilliant star. 
 
 The following was surrounded by a border of grapes and 
 human faces : . 
 
 The ghosts and sprites 
 That haunt the nights 
 Are dreadful sights. 
 
 Stretched across the room and on the walls were strings, 
 on which were hung pieces of blnck cloth, gilt paper, &c. 
 These he said were to " keep off the evil spirits." 
 
I98 EPILEPSY 
 
 The following is one of his first productions, in jail, is ded- 
 icated to the wife of the jailor : 
 
 With a motherly care and tender heart, 
 
 She would cheer me up in Creed and Tenet ; 
 And bring me all she had, a part, 
 
 For which I shall lorget thee not, Miss Bennett ! 
 
 As there within that iron cell, 
 
 I thought of God of Heaven and of Hell, 
 
 And of the Murdered Man I thought ! 
 
 To whose dear friends the great distress I brought ; 
 
 And of my Father and my Mother, 
 
 Of my Sister and my Brother; 
 Who were in sorrow, dread and greaf, appalled, 
 
 As also were my dearest Friends. 
 
 And, here, that watchful Nymph, Miss Bennett called, 
 
 A bunch of sweet fresh flowers sends, 
 
 And leaves me with such a sorrowing smile, 
 
 Thai gave my heart a panic trial ; 
 
 Of all my past and future life, 
 
 Yea, like a two-edged dagger knife, 
 
 It pierced my heart to see her grieve for me ! 
 
 For I knew she would gladly have me free. 
 
 Oh trust in God, Oh pray forever more, 
 
 So when we both shall reach that happy Land, 
 
 And meet upon that bright celestial Shore 
 We will join our Father's Heavenly Band, 
 
 And serve and praise Him there forever more. 
 
 Before the Lord the pure in heart shall meet, 
 The whole Heavenly Hoste in joy shall greet, 
 A faithful, and true repenting sinner. 
 
 Oh how willingly I should leave this life, 
 If I could tell you of the aweful strife, 
 That awful terrible tempting Power ! 
 Whose victim I have been at that sad hour. 
 Let hard-hearted men tell you what they will, 
 You know that men, the soul can never kill; 
 And I, you know, was helpless at the time. 
 When I commit that awful, awful crime ! 
 My brains were like a raveing mad man's ire, 
 
WITH MANIA. 
 
 I would not think of fear, or death, or fire ! 
 
 But turned I was, to one majestic Deed, 
 
 And that 1 could not understand or read, 
 
 But was forced to do a terrible thing, 
 
 That often caused my head and ears to ring 1 
 
 And often laid me senseless on the floor, 
 
 And than would rise and feel the force no more, 
 
 I turned to Jesus than and pryed, 
 
 For His Divine and Heavenlyaid ; 
 
 When the raving Power of madness came, 
 
 And took me off as if I were insane ! 
 
 I longed to be on sortie lone island in the Sea, 
 
 Or in some solitary forest, quiet, free. 
 
 And there to do a thing of fame and majesty; 
 
 With which I'd gladly risk my life and all, 
 
 To rouse the World in wonder and appall 3 
 
 The Power was so tempting and so hot. 
 
 T'was always there, and could forget it not. 
 
 Oh ! the heartless man, the pitiless youth, 
 That heard me tell in the Heavenly truth, 
 Of all my sufferings and helplessness; 
 Of all my true and senseless lawlessness, 
 And does not feel the godly sense of helpless guilt, 
 But who would rather see me at the gllows placed; 
 He is no Man, He Has no heart like God has built; 
 His very soul is on destruction based ! 
 
 Has not our Heavenly Father Blessed us all 
 With brains ? And placed within that temple shrine of clay, 
 The Soul, the immortal Soul ? And, oh, say- 
 Are not those mortal brains to get diseased, 
 Become deranged, or possessed by evil powers? 
 As I myself have often been seized, 
 In those restless and exciting hours? 
 
 I'm ready to die, I ask not to live, 
 
 Yet I think they could easily forgive, 
 
 A youth who never in his life had been, 
 
 A drunkard, smoker, swearer,' or a cheat; 
 
 And who would Day and Night, his prayers repeat, 
 
 To God to keep him from the lion's den, 
 
 Of the degraded base and wicked men. 
 
 I have to tell you here Miss Bennett, 
 
 And if I could only make you ken it, 
 
 That so far as it is in my power : 
 
 199 
 
200 EPILEPSY. 
 
 To recollect, and think, and see, and know, 
 I was deranged and broken at that hour; 
 When I gave my intimate friend the blow ! 
 By the firey impulsive Power, 
 I did the other cruel deeds you know I 
 
 May 31st, 1873. JOSEPH WALTZ. 
 
 Among the " Odes " handed to one of the physicians who 
 visited him, is the following : 
 
 Dear Doctor, you are kind, 
 And gentle, and refined . 
 You come to see me here, 
 Where all is strange and queer. 
 
 No more I'll see the sky, 
 For soon they'll make me die, 
 Those strong and cruel men 
 Have chained me in this den, 
 And here they make me stay 
 Until the first of May, 
 When I'll be crucified 
 For that sad homicide. 
 They say I slew a man 
 By some infernal plan, 
 And struck him on the head 
 Until the man was dead, 
 But then his spirit flew 
 Up there to Heaven, too. 
 For he was good, I think, 
 He did not swear nor drink. 
 But this was long ago, 
 And now I hardly know 
 How this sad act was done — 
 Or where I used to run, 
 When evil spirits came 
 I was no more the same, 
 For by their burning charm 
 My spirit they did harm. 
 And now, sir, tell me why 
 I made that good man die, 
 And did not let him live — 
 Who can a reason give ? 
 I say it was a dream, 
 A strange and chanting dream, 
 In which I did not know 
 
WITH MANIA. 20 1 
 
 That what I did was so. 
 
 There in the eastern skies 
 
 I saw the sun arise. 
 
 It shone the whole day long, 
 
 But there was something wrong. 
 
 I felt a strange desire, 
 
 Which made my soul aspire 
 
 To be Lunarian King. 
 
 I felt it oft before, 
 
 But this time it was sore. 
 
 But why this was just so 
 
 I really do not know. 
 
 At length I felt more peace, 
 
 The burning force did cease. 
 
 But then I was not strong — 
 
 I felt that I did wrong 
 
 I then began to see — 
 
 But thought it could not be 
 
 That I should thus have slain, 
 
 And crushed the poor man's brain. 
 
 They say I was deranged. 
 
 I say my soul was changed. 
 
 My spirit from that hour 
 
 Was stripped of all its power. 
 
 The demons robbed my soui 
 
 Of all its self-control. 
 
 But Lunary spirits came 
 
 And quenched the demons flame. 
 
 Good spirits from the moon 
 
 Did come to me at noon, 
 
 Like angels they can sing, 
 
 And I'm to be their king. 
 
 This is written in double column, and between them are 
 the words : 
 
 From the earth to the moon 
 In a spirit balloon. 
 
 This letter is to the same person : 
 
 Doubting Castle, March 15. 
 
 Dear Mr. Doctor : I feel quite well to-day. I feel as if I were much re- 
 lieved of evil spirits. God has brought me much peace. I am inspired now. 
 He came to me while I slept. Dear Doctor, when these spirits torture me 
 what have I to do with it ? How could that man help it that Jesus cleansed 
 
202 EPILEPSY 
 
 while on earth? Jesus did not put him to death, but cast out the demons. Can 
 you not let me go home now like Jesus did ? I have prayed to him, and he 
 brought me much peace. I do not feel very well now, but am inspired by good 
 spirits. Go to the court house and tell the Judge I want to see my farm. Why 
 do they lock me up here so long? I am not speaking of nitro-glycerine explo- 
 sions. I am a spirit as well as you are. If bad spirits confuse me I cannot 
 help it. 
 
 You came here one day and peeped through the door, 
 
 You looked so gay and glad I thought of nothing more. 
 
 You came right here to chase and drive the ghosts to hell, 
 
 Your bright and shining face made everything look well. 
 
 Dear doctor, let me go out there where I can sing, 
 
 I'll give you all I know, "my life, and everything. 
 
 Bad men have chained me here, and now I cannot walk, 
 
 They acted strange and queer, and would not laugh nor talk, 
 
 They say I once was bad, and killed a man one time, 
 
 'Tis very strange and sad, because I did the crime. 
 
 But it was long ago, and now I can't remember; 
 
 But it was all just so — they told me in December. 
 
 But I cannot see why 
 
 I made the lost man die. 
 
 Or is it all a dream, 
 
 So strange it all does seem. 
 
 He now makes confession of another murder, which he 
 claims to have committed prior to that of the scissors-grinder, 
 but as the grounds indicated by him as holding the remains 
 were thoroughly searched, and no body or anything of im- 
 portance found, the crime was probably never committed, 
 except in his morbid imagination. The confession runs 
 thus : 
 
 April 23d, 1874. 
 
 My Dear Friends and Enemies.— I have just come to the place of truth, 
 which is the flowing fountain of all true peace and happiness — that is a sincere, 
 full and clear confession of all the circumstances attending the killing of the 
 other man. I have but a short time to remain in this jail of endless torture and 
 infernal fear of the powers and charms of unclean spirits; yes, I shall take my 
 flight soon for the spirit land. You may see my frame dangling at the end of 
 the hangman's rope, but Joe will not be there; he will reign above. About three 
 years ago there came a man to our house— that is, on the farm where I was be- 
 fore I came here. He was a German who had traveled far and wide with his 
 awkward machine, with which he was very familiar. I was at work down in the 
 lot and came home to dinner, but could not eat for I was tired. I saw this man's 
 
WITH MANIA. 203 
 
 machine standing there, outside the house, and as I entered I saw the man. I 
 saw him before. We talked pleasantly for some time; I went out a short time, I 
 think, and then went in my room; when I came out I killed him; I struck very 
 hard, but after all I seemed to have no strength; but the man was dead instantly. 
 I took him up, carried him off to the long, deep ditch, northeast of the tower, 
 and then went back to the house to clean up the floor. I think there were some 
 marks of blood which I rubbed out with a sponge which I found in the barn, and 
 afterwards buried it in a hole in the ground. I hastily took the machine and 
 broke it to atoms and hid it in various places, and afterward took some of the 
 parts of the machine from these places and went off with them. I was very tired 
 when I buried the man, but the spirits would not let me rest. I wrote a letter 
 at night and went off and had a nice time, but it was nearly daylight when I was 
 through. I think papa was trimming or pruning grape vines over the river. I 
 went down to the river that night but I was not strong. 1 saw a boat there but I 
 could not row out. I do not know where I went then. I went all over the farm 
 to see if things were all right and took some things from under the barn and 
 went down to hide them in the walls and stone heaps and in the woods. This 
 was in the night, and as I went or was about to hide in the woods I saw a very 
 frightful thing gliding through the trees in the woods where it disappeared. 
 What it was 1 cannot say to this day. I sat down there on the spot till morn- 
 ing, when the sun shone brightly, and dreamed dreams. My father scolded me, 
 I think, for not being there, but these things are all past now and many are for- 
 gotten. The last man is buried in a ditch running east and west, and can be 
 easily seen from the tower. I burned some of the things of the man and hid 
 others in a fox hole in the woods. 
 
 In the afternoon of the 29th April he murdered his keeper, 
 Ernst, in the cell. Up to within a few days of the murder, 
 Waltz had been in restraint, or chained, but as he seemed 
 quiet, and as he promised to remain so, his chains were re- 
 moved.- At noon of that day, he is said to have grown 
 "uglier," running to and fro in his cell, roaring like a beast, 
 and throwing things through the window. Ernst, who was a 
 powerful, muscular and fearless man, was in the cell alone at 
 the time with him, and probably was asleep on the lounge. 
 The murderer, with great strength, had torn from the floor a 
 bar of iron, two feet long, and two inches wide, and which 
 was screwed down crosswise to keep the boards more firmly 
 in place. He then bent one end, to give it additional weight, 
 and with this weapon he attacked his victim, beating him on 
 the head and crushing his skull in several places. After, as 
 he supposed, despatching his keeper (Ernst lived for a few 
 hours), he covered the pools of blood on the floor with news- 
 
204 EPILEPSY 
 
 papers. He possessed himself of the man's revolver and 
 keys, but made no attempt to use either. When the sheriff 
 and other jailors burst the cell door open, they found him 
 cowering, on the floor in a corner, mumbling and growling to 
 himself. Hemade.no resistance to the jailors when they 
 took from him the revolver and keys, and chained him fast, 
 but only continued his unintelligible muttering. He con- 
 tinued in this condition till the last. 
 
 On the day before his execution, the Roman Catholic 
 Priest, who had been his pastor for years, and who attended 
 him all the while in prison, made the following written state- 
 ment : 
 
 I hereby express my conviction that Joseph Waltz is of such' mental condition 
 that he is incapable of receiving any one of the sacraments usually administered 
 in such cases, according to the rite of the Catholic Church; and that during my 
 frequent visits to him since a few weeks after his imprisonment, I was never able 
 to say that he was of sufficient mind to make a sacramental confession, or to re- 
 ceive any sacrament. I further express my belief that if hanged on to-morrow, 
 my services as his spiritual adviser will be of no avail. 
 
 V. P. DRISCOLE, 
 Pastor of St. Patrick's Church, Catskill. 
 
 Catskill, N. Y., April 30, '74. 
 
 After the murder he refused all food, and spent the night 
 crouching in a corner, " resembling more an animal than a 
 human being." Before the sheriff closed the door for the 
 night, the widow of his first victim, Mrs. Holcher, and her 
 sister, went in the cell, and said, " Joe, you know me ? Look 
 at me ;" but he did not look up at them. The next morning 
 he was unchanged, and when his mother and sister came in 
 to see him for the last time alive, and wish him farewell, he 
 remained unnerved, paying no attention and making no re- 
 sponse to their supplications and entreaties to speak to 
 them. 
 
 He was lead to the gallows with the same expressionless 
 countenance. 
 
 The words of the death warrent fell on his ears unheeded. 
 He seemed not to hear the question usually following this; 
 and when the fatal noose was applied, he showed not a symp- 
 tom of concern, or consciousnebs of what was being done to 
 him. 
 
WITH MANIA. 205 
 
 It took but a few minutes, after the rope was cut, for life 
 to be extinct. In some way, however, the knot in the fatal 
 noose slipped, and he died, apparently, from strangulation. 
 
 Ten days after the execution, the Hon. A. M. Osborne, 
 now on the Bench of the Supreme Court, and who ably de- 
 fended Waltz, in a letter dated May nth, says: 
 
 " My opinion is unchanged ; a raving maniac has been hung. 
 This I am convinced of." ****<<! ought to say that 
 from the very day of his arrest for the murder of Holchen 
 down to the day of his execution, I never could do or say 
 anything to interest him in the slightest degree. As to his 
 situation, his trial, his danger, or get from him the slightest 
 suggestion or intimation in regard thereto, although I tried 
 to do so on various occasions. I was his only responsible 
 counsel." 
 
 The Hon. J. A. Griswold, one of the prosecuting attor- 
 neys, speaking of the report of the Commissioners in a letter 
 to one of the physicians who examined the condemned man, 
 also regrets that the Commissioners, in their report to the 
 Governor, had not expressed sufficient doubt as to the mental 
 condition of Waltz to justify his Excellency in granting time 
 for further observations of the man. 
 
LOSS OF CONSCIOUSNESS, 
 
 EFFECT OF, 
 
 UPON THE MEMORY OF PRECEDING EVENTS * 
 
 By Prof. FRANK H. HAMILTON, M. D. 
 President of the Medico-Legal Society, New York, Etc. 
 
 Some years since I was consulted by a lawyer of considera- 
 ble experience in Criminal Jurisprudence, in relation to the 
 case of a client who had been arrested for assault, under the 
 following circumstances: 
 
 A woman occupying ah apartment alone, in a tenement 
 house, charged that she had been assaulted in the night, 
 while in bed, by a man wearing a mask. That during the 
 struggle which ensued, the man struck her with a club upon 
 her head, rendering her insensible ; and that she remained 
 in this condition until morning, when, consciousness having 
 returned, she called in some one who was passing. She was 
 found with her clothes on, lying upon the outside of the bed, 
 and with a wound, accompanied by considerable swelling, 
 upon her forehead. She then stated how she had been as 
 saulted, declaring that she had recognized the man, and upon 
 her statement my friend's client was soon arrested. 
 
 I gave it as my opionion that, if she was insensible during 
 several hours following the receipt of the injury, her testi- 
 mony as to what transpired immediately preceding the uncon- 
 sciousness ought not to be allowed much weight ; and that the 
 fact that she claimed to be able to recall all the events up to 
 the final blow so distinctly, furnished, to say the least, some 
 ground for suspicion that it was all a fraud. 
 
 Read before the Society Nov. 30, 1875. 
 
CONSCIOUSNESS. 20 7 
 
 Subsequently it was ascertained that this woman, who had 
 borne a doubtful reputation among her neighbors, had been 
 found drunk in the streets on the night of the assumed as- 
 sault, and that another woman had lifted her up and con- 
 ducted her as far as the door of her house. The case was 
 dropped ; but my attention had been called to the value of 
 testimony given under such circumstances, and from that 
 time until the present I have continued to make and record 
 occasional observations upon the subject, as opportunities 
 have been afforded. My observations have indeed been quite 
 numerous, but only those which have been carefully recorded 
 constitute the basis of my present remarks. 
 
 South, in his notes to Chelius' Surgergy, mentions a case 
 in which a surgeon, finding a woman in a comatose con- 
 dition, suspected that it was due to extravasation of blood, 
 and applied the trephine, when, upon the escape of the im- 
 prisoned blood, the woman recovered her senses promptly, 
 " and was able to give a clear account of the manner in which 
 the accident occurred." Perhaps the writer has reported 
 the facts in this case correctly, and that there was no failure 
 in the memory of preceding events; but this is not what 
 always happens ; indeed, in a case of my own of a very simi- 
 lar nature, the patient having been blown up in a steamboat 
 explosion, causing a fracture of the skull and a rupture of 
 the middle meningeal artery, incision of the dura mater 
 brought relief and restored consciousness ; but, although his 
 recovery was complete, he was never able to recall any inci- 
 dent connected with the disaster, or any event of the day on 
 which the accident occurred. 
 
 My experience has also led me to regard as apocryphal 
 those stories which are now and then related in daily news- 
 papers, and sometimes in journals devoted to science, of per- 
 sons who, having been stricken with sudden loss of conscious- 
 ness while speaking, have, upon the sudden restoration of 
 consciousness after the lapse of many hours or days, pro- 
 ceeded to finish the broken sentence, or have taken up their 
 thread of thought as if no interruption had occurred. When 
 the unconsciousness has been transient or momentary, I think 
 I have seen this happen ; but not when it has been complete 
 
208 LOSS OF 
 
 and prolonged It may not be proper to deny positively that 
 such a case has ever occurred ; but no such example has come 
 under my observation, nor have I seen recorded a case prop- 
 erly authenticated. 
 
 It is apparent that the question which this- subject opens, 
 as to the admissibility of the patient's testimony under these 
 conditions, have a very wide application, and that, if possi- 
 ble, they ought to be determined by a reference to carefully 
 observed facts. 
 
 Complete, but temporary unconsciousness may be occa- 
 sioned by a blow upon the head, causing concussion of the 
 brain ; by compression of the brain, ensuing upon a fracture 
 of the skull with depression of the fragments ; by extravasa- 
 tion of blood within the skull ; by embolism or a cerebral 
 artery ; by syncope ; by epilepsy ; by the inhalation of anaes- 
 thetics ; by alcoholic inebriation, which is only a form of 
 anaesthesia ; by the use of opiates and other narcotics ; and, 
 perhaps, by hiany other causes. 
 
 Even sleep, a natural event, and which occurs without any 
 positive cerebral disturbance, may possibly, at times, cause a 
 break or a failure in the memory. At all events it is a proper 
 question for consideration. 
 
 In the large majority of cases, however, which come under 
 the observation of the medical jurist, the insensibility will be 
 found to be due to concussion or compression of the brain ; 
 caused by blows inflicted upon the head, or by the shock in- 
 cident to railroad or other serious accidents ; and it is quite 
 probable that the laws which govern the recollection of pre- 
 ceding events will be found upon thorough examination, to 
 vary according as the loss of consciousness may be due to one 
 or the other of the many causes above enumerated; but my 
 observations are not at present sufficiently extensive to enable 
 me to note such differences if they actually exist. No at- 
 tempt will be made, therefore, to do more than to lay before 
 you a few facts, and to suggest a few general inferences, but 
 with no pretense that these inferences are entitled to be con- 
 sidered in the character of a well-established law. 
 
 You will better appreciate the pertinence of the examples, 
 if we reverse the usual order of consideration, and place be- 
 
CONSCIOUSNESS. 200 
 
 fore you briefly the conclusions, before reporting the cases 
 from which the conclusions have been mainly drawn. 
 
 First. — A temporary loss of consciousness does, in many 
 cases, impair the recollection of events immediately pre- 
 ceding. 
 
 Second. — In some cases it does not. 
 
 Third. — Impairment of memory, caused by a loss of con- 
 sciousness, is of two kinds. 
 
 (a) Complete obliteration of memory, dating from a period 
 of time or from an event which the patient can distinctly 
 name. 
 
 (6) Events may be remembered up to the moment of the 
 receipt of the injury, but with a degree of confusion and un- 
 certainty. 
 
 Fourth. — In the case of complete and sudden obliteration 
 of memory, dating from a period preceding the injury, the 
 length of this period will, in general, have relation to the de- 
 gree and length of the insensibility. If the patient is uncon- 
 scious but a few moments, or if the loss of consciousness is 
 only partial, he may recall events nearly or quite to the mo- 
 ment of the receipt of the injury. If on the other hand, the 
 loss of consciousness is complete, amounting to coma, and 
 prolonged, it is probable that he will have forgotten events 
 for some time preceding the injury. 
 
 Case 1 — Unconscious three-quarters of an hour. Loss of memory, 
 
 10 seconds. 
 
 July 10th, 1854, James Smith, of Buffalo, was driving a 
 pair of spirited horses, when he found his progress delayed 
 by a buggy, which, for some reason, he was unable to pass. 
 At length an attempt was made by Mr. Smith to pass, and his 
 carriage was capsized, throwing him upon the ground, caus- 
 ing severe contusions of his head and face and a concussion 
 of the brain. When I arrived I found him unconscious, and 
 this condition continued some time longer, probably three- 
 quarters of an hour in all. 
 
 After his complete recovery, which took place speedily, he 
 was unable to recall any event connected with the accident 
 except that he was annoyed at the obstruction caused by the 
 
2IO LOSS OF 
 
 other carriage, arid he was looking out for ah opportunity to 
 pass. The fact that he actually turned out and was capsized 
 he was never able to recall. 
 
 Case j.. — Unconscious 3 hours. Loss of memory, 10 seconds. 
 
 Rufus Wheeler, aet. 17, of Buffalo, fell, Nov. 2, 1853, int0 
 the hold of a vessel, a distance of about twelve feet, striking 
 on his head, suffering a severe contusion and laceration of 
 the scalp, with concussion of the, brain. Three weeks after 
 the accident he could not recollect falling or even walking 
 in the gangway ; he could only remember that he was about 
 to go into the gangway. He was insensible about three 
 hours, and he has lost the memory of events at least ten 
 seconds preceding the accident. 
 
 Case 3. — Insensible 10 seconds. No loss of memory. 
 
 F. H. was hit by a ball club when 11 years of age; was 
 knocked down and stunned for perhaps 10 seconds. Remem- 
 bers feeling the blow, like a heavy thud upon his face. 
 
 Case 4. — Insensible 7 hours. Loss of memory, 5 minutes. 
 
 C. H. Kennada, of Toledo, when 18 years old, fell back- 
 wards about twelve feet upon a barn floor, striking upon his 
 head and shoulders. He is informed that he got up immedi- 
 ately and walked away from home, and that he did not re- 
 cover his consciousness for about seven hours. 
 
 When I interrogated him he was a student of medicine, 
 and more than twenty years had elapsed since the accident 
 occurred. The last circumstance which he could recall pre- 
 ceding the fall, was putting on his boots ; after which he must 
 have walked to the barn a distance of twenty rods, and 
 ascended the ladder to the barn scaffold. It is proper there- 
 fore to assume that he has forgotten events five minutes pre- 
 ceding the fall. For several years he could not remember 
 dressing himself in the morning. 
 
 Case 5. — Insensible 5 hours. Loss of memory, 1 minute. 
 
 Thomas Miles, of London, Canada West, while carrying 
 a heavy piece of timber, fell, and was struck upon his head 
 by the timber. He was unconscious five hours. He vom- 
 
CONSCIOUSNESS. 211 
 
 ited, and bled from both ears. Eight months after the acci- 
 dent he consulted me, on account of a paralysis of the right 
 orbicularis palpebrarum, causing the eye to remain perma- 
 nently open ; a paralysis of the right side of the face, and a 
 convergent strabismus, all of which had ensued upon the ac- 
 cident ; but in all other respects, physically and mentally, he 
 was sound. 
 
 The last event preceding the accident which he could re- 
 call was taking up the piece of timber ; but after this he had 
 walked five rods, and at least one or two minutes must have 
 elapsed. 
 
 Case 6. — Insensible i hour. Loss, of memory, several hours. 
 T. B., when about ten years of age, fell from a trapeze, a 
 distance of about thirty feet, striking upon the back of his 
 head. He was taken up insensible, and remained in this con- 
 dition probably one hour. Now, after the lapse of years, he 
 is unable to recall any event of the morning on which the 
 accident occurred. 
 
 Case 7. — Insensible 6 days. loss of memory, 10 minutes. 
 
 T. W. Lynch, of Allegany Co., N. Y., while at work in a 
 saw-mill, June 25th, 1856, was crushed under a log weighing 
 probably fifteen hundred pounds. He thinks his skull must 
 have been compressed to a thickness of four and a half inches. 
 Blood flowed freely from his 7 mouth and nose. He believes 
 that he remained in a state of nearly complete insensibility 
 for a period of six days. He remembers, however, that dur- 
 ing the first week he suffered great pain. 
 
 Two months later he consulted me. I found the right 
 upper lid and all of the recti muscles paralyzed, and the sight 
 of both eyes seriously impaired. In other respects his recov. 
 ery was complete. 
 
 The last circumstance which he could recall preceding the 
 accident was turning the log over, after which he sawed fiom 
 it five boards. I do not know how long it would repuire to 
 saw five boards, but I think I may safely say ten minutes. 
 
 Case 8. — Insensible 2 hours. No loss of memory. 
 Miss H. Green, of Royalton, Niagara Co., N. Y., was 
 
212 LOSS OF 
 
 stunned by a flash of lightning, and remained insensible 
 about two hours, during which time she had several con. 
 vulsions. 
 
 Four weeks after the accident she consulted me. I found 
 she had paralysis of the optic nerve and of the sixth pair, but 
 in other respects she was well. She informed me that she 
 remembered distinctly seeing the flash of lightning which 
 stunned her. 
 
 It will be understood that the young lady was not struck 
 by lightning, as there was no marks upon her person or 
 clothes. I will not suggest the possibility that there might 
 have been a mistake as to which flash she remembered, since 
 it is my impression now that both the friends and the physi- 
 cian informed me that there was but one flash of lightning 
 on that day ; but it is not so stated in my notes. I think it 
 proper, therefore, to permit the case to stand as an example 
 in which the last event preceding the accident is remem- 
 bered ; but it will be noted that the nature of the accident is 
 exceptional, and such as perhaps would be most likely to be 
 recalled ; but probably no one was ever actually hit by light- 
 ning, who, upon recovery, would recall the blow. 
 
 Case 9 . — Insensible I hour. Loss of memory, 5 minutes. 
 
 Thomas Bluett, aet. 22, was thrown from a wagon March 
 19, 1850, while his horses were running, and thrown head 
 first against a curbstone, sustaining a fracture of the skull. 
 I trephined him, and one hour after the receipt of the injury 
 he became conscious. His restoration to health was eventu- 
 ally complete, except that he had lost his right eye. 
 
 He has since been able to remember that he harnessed his 
 horses and mounted his wagon ; but after this he drove sixty 
 rods before the horses became frightened, and they ran some 
 distance before he was thrown out. All of this he has for- 
 gotten. 
 
 Case 10. — Insensible 2 minutes. Loss of memory, 10 seconds. 
 
 Wm. Simmons, of Collins, N. Y., aet. 18, was kicked by a 
 horse, March 13, 1853, causing a fracture of the right os- 
 frontis. He lost his consciousness, for about two minutes 
 
CONSCIOUSNESS. 2 13 
 
 only, although the fragments remained depressed until I saw 
 him, which was on the following day. His recovery took 
 place in a few weeks. 
 
 When the accident happened he had dismounted from his 
 horse and led him four rods, as stated by two persons pres- 
 ent ; but he remembers nothing after he had dismounted. 
 
 Case ii. — -Insensible several days. Loss of memory, 10 seconds. 
 
 Wm. Farrell was kicked by a horse, causing a fracture of 
 the skull and insensibility, which he thinks continued several 
 days. 
 
 Thirteen years after the accident he informed me that he 
 remembered throwing his cap at the horse, after which he 
 ran to pick it up and was kicked, but never could recall any- 
 thing after throwing his cap. 
 
 Case 12. — Insensible several days. Loss of memory, 10 seconds. 
 
 John Knoll was kicked by a horse, breaking his skull, 
 and, as he thinks, remained insensible several days. 
 
 Some years after the accident I found a large space in the 
 os-frontis, caused by the removal of bone at the time of the 
 accident. He was well and intelligent. He remembers going 
 into the field to catch his horse, but he does not remember 
 chasing the horse, as he is informed he did, nor does he re- 
 member being kicked 
 
 Case 13. — Insensible 10 minutes. Loss of memory, 3 seeonds. 
 
 James S., aet. 28 was thrown from a buggy, striking on his 
 head. Suffered a severe contusion and concussion, and was 
 insensible fully ten minutes. Three months after the acci- 
 dent he could recall the fact that his horse was running, and 
 that he leaned forward in his buggy, but he could not recall 
 the fact that the horse left the track and that he was thrown 
 out. 
 
 Case 14. — Insensible 15 minutes. Loss of memory, 2 seconds. 
 
 A. W., aet. 26, fell eight feet, striking upon a log. Insen- 
 sible fifteen minutes. Remembers losing his balance, but 
 does not remember the fall. 
 
214 L0SS OF 
 
 Case 15. — Insensible 2 weeks. Loss of memory 3 seconds. 
 
 David McKenzie, aet. 40, while superintending the con- 
 struction of Niagara Falls Suspension Bridge, was struck by 
 a falling timber, Oct. 11, 1854 He consulted me about six 
 weeks after the accident, and stated that he was stunned by 
 the blow and did not recover his consciousness for two weeks; 
 that owing to the great swelling which ensued his surgeons 
 did not discover a fracture of the skull until lately. His 
 frontal bone was broken extensively, and depressed about 
 one quarter of an inch. The whole right sid of his face, in- 
 cluding the right eye, was paralyzed, but his intellect was 
 sound, and he had already returned to his duties in superin- 
 tending the work on the bridge. He remembered that some 
 thing had given way, and that he warned the men to take 
 care of themselves. 
 
 Case 16.— Insensible 30 minutes. Loss of memory 3 seconds. 
 
 Harvey, aet 22, fell and was traversed by the wheel of a 
 loaded cart in Sept. 1853, fracturing the upper jaw and cheek 
 bones, and causing a concussion of the brain which rendered 
 him insensible half an hour. 
 
 He remembers falling from the cart, but does not remem- 
 ber striking the ground or struggling to extricate himself. 
 
 Case 17. — Insensible 15 minutes. Loss of memory, 3 seconds. 
 
 Jacob Dusenberger fell 15 feet from the loft of a barn and 
 struck upon his head and shoulders. He was insensible 
 about fifteen minutes. He remembers going aloft and saw- 
 ing a plank, but has no recollection of falling or of any 
 mishap. 
 
 Case 18. — Insensible 3 minutes. Loss of memory, 10 seconds. 
 
 Fred Conklin, aet. 16, fell from a swing, upon the barn 
 floor, striking upon the back of his head. He was uncon- 
 cious about three minutes. 
 
 He remembers taking hold of the ropes and getting ready 
 to swing, but nothing more. 
 
CONSCIOUSNESS. 2 1 5 
 
 Case 19. — Insensible 15 minutes. Loss of memory 1 second. 
 
 John Campbell fell head first sixteen feet, striking upon 
 his head. He was insensible fifteen minutes, and remembers 
 that When he was falling he saw a beam projecting about 
 half way down, and he thought to himself that he would 
 catch hold upon it, but he does not remember trying to seize 
 the timber, nor his farther descent toward to the ground. 
 
 Case 20. — Insensible 1 hour. — Loss of memory, 20 seconds. 
 
 D. Shepard, aet. 43, was struck by a locomotive, Dec. 8th, 
 1855, causing a slight fracture and depression of the skull 
 and concussion of the brain. He remained unconscious 
 about an hour. The last event which he can recall is look- 
 ing out of the car, about twenty seconds before he was hit 
 by the passing train. 
 
 Case 2 1. -^"Insensible 5 minutes. Loss of memory, 2 seconds. 
 
 Thomas Little, aet. 27 was struck upon his leg and thrown 
 upon his head with violence, causing concussion of the brain. 
 The injury to his leg was such as to demand amputation. He 
 was unconscious about five minutes. The last event he could 
 recall was by him placed at two or three seconds before the 
 blow was received. 
 
 Case 22. — Insensible 3 hours. Loss of memory, 3 seconds. 
 
 Hiram Leech, aet. 38, of Great Valley, N. Y., was struck 
 by the limb of a tree, Sept. 1, 1853, and was insensible three 
 hours. He remembered seeing the tree standing at an angle 
 and threatening to fall, but not the actual falling of the tree. 
 
 Case 23. — Insensible 4 hours. Memory uncertain. 
 
 W. Miles, soldier in the confederate service, was wounded 
 by a sabre thrust in a charge made by Sheridan, April 9th, 
 1865, near Appomatox Station, Va. The sabre penetrated 
 
2l6 LOSS OF 
 
 the skull, cansing him to fall from his horse, and loss of con 
 sciousness which continued four hours, when he found him 
 self in the hands of the Federal forces. 
 
 On the 14th of May following, he was in the hospital at 
 Point of Rocks, Va. The wound had closed and he felt quite 
 well ; but he could not remember whether the charge was 
 made in the morning or afternoon, and all the events of the 
 day preceding were greatly " mixed," as he expressed it. 
 
 Case 24. — Insensible 3 minutes. No loss of memory. 
 
 Dr. informs me that when he was sixteen years old, 
 
 he had an epileptic seizure while walking in the country. He 
 remembers falling or leaning against the fence when the at- 
 tack commenced. 
 
 Case 25 . — Insensible 10 minutes. Loss of memory 3 seconds. 
 
 John Lamb, aet. 41, was injured by a railroad accident, 
 March 14, 1865, the car being thrown down an embankment 
 twelve or fourteen feet. He consulted me six months later 
 on account of general impairment of health consequent upon 
 the injury. His mind seemed to be in a sound condition, 
 except that he said his memory was not as good as formerly. 
 He remembers that the car was lifted on one side and that 
 lie thought of pulling the rope attached to the bell, but noth- 
 ing more until he found himself being carried into another 
 car. 
 
 Case 26. — Insensible 10 minutes. Loss of memory 3 seconds. 
 
 Vanwort, aet. 52, was struck on his legs, Oct. 12th, 1875, 
 by the crank of a movable crane, breaking one of his legs 
 and throwing him down. Within two or three seconds more 
 he was traversed by the machine and hit upon his head and 
 made insensible. He remembers seeing the crank give way, 
 but has no recollection of being hit upon his legs or being 
 traversed by the crane. 
 
CONSCIOUSNESS. 
 
 217 
 
 Cases 
 
 How occurred. 
 
 13 
 H 
 15 
 
 16 
 
 17 
 18 
 
 19 
 20 
 
 21 
 22 
 23 
 
 24 
 
 25 
 26 
 
 Thrown from carriage 
 
 Fall into hold of vessel. __ 
 
 Blow from ball club 
 
 Fall — 12 feet 
 
 Blowfrom heavy timber. . 
 
 Fall — 30 feet 
 
 Crushed under weight 1,500 
 
 pnunds 
 
 Stunned by lightning 
 
 Thrown from carriage 
 
 Nature of injury. 
 
 Concussion of brain . 
 
 Kick from horse . 
 
 Kick from horse. 
 
 Kicked by a horse. . 
 
 Thrown from a buggy 
 
 Fell8feet____ ..]"" 
 
 Struck by a falling timber. 
 
 Crushed by the wheel of a 
 
 loaded cart 
 
 Fell about 15 leet 
 
 Fell from a swing ._ 
 
 Fell 16 feet 
 
 Struck by a locomotive. . _ 
 
 Thrown down with violence 
 Struck by a falling tree. ... 
 Sabre wound 
 
 Epilepsy . 
 
 Ra'lroad accident. 
 Knocked down 
 
 Fracture and com 
 pression of skull.. 
 
 Fracture and depres 
 sion of skull, with 
 concussion 
 
 Fracture and depres 
 sion of skull 
 
 Fracture and depres 
 sion of skull 
 
 Concussion of brain 
 
 it c< 
 
 Fracture and depres 
 sion of skull 
 
 Concussion of brain 
 
 Fracture anl concus 
 
 sion ... 
 
 Concussion of brain. 
 
 Epilepsy 
 
 Concussion of brain. 
 
 How long 
 insensible. 
 
 Loss of 
 memory 
 
 45 minutes 
 3 hours.. 
 
 10 seconds. 
 7 hours. 
 
 5 hours. 
 
 1 hour. 
 
 6 days. 
 
 2 hours. 
 
 1 hour. 
 
 2 minutes. 
 Several 
 
 days. 
 
 Several 
 
 hours. 
 
 10 minutes. 
 
 15 minutes. 
 
 2 weeks. 
 
 30 minute-. 
 15 minutes. 
 
 3 minutes. 
 15 minutes. 
 
 1 hour. 
 5 minutes. 
 
 3 hours. 
 
 4 hours. 
 
 3 minutes. 
 
 30 minutes. 
 10 minutes. 
 
 10 seconds. 
 IO seconds. 
 
 5 minutes. 
 1 minute. 
 — hours. 
 
 10 minutes. 
 Not any. 
 
 5 minutes. 
 
 10 seconds. 
 
 10 seconds. 
 
 IO seconds. 
 3 seconds. 
 
 2 seconds. 
 
 13 seconds. 
 
 3 seconds. 
 3 seconds. 
 
 10 seconds. 
 
 1 second. 
 
 20 seconds. 
 
 2 seconds. 
 
 3 seconds. 
 Memory 
 
 confused. 
 No loss of 
 memory. 
 
 5 seconds. 
 
 In reference to that class of cases in which the memory of 
 events is retained up to the moment af the accession of un- 
 consciousness, but in which the memory is confused and un- 
 certain, it may be observed that they are likely to possess the 
 most importance in a medico-legal point of view. Those 
 who have forgotten completely preceding events will make 
 no statement in relation to these events unless they fully in- 
 tend to swear falsely and to practice a fraud, and we may 
 hope that the number of persons who will thus wilfully per- 
 
2l8 LOSS OF 
 
 jure themselves is not large ; but the other class of persons 
 may testify honestly and yet very erroneously ; their memory 
 of preceding events being in part correct and in part false 
 There may be just enough truth in their statements to give a 
 color, and to induce the court to accept of the whole without 
 qualification or abatement. Under these circumstances the 
 witness may, unintentionally, put language in the mouth of 
 one which was uttered by another. He may transpose the 
 order of events, or in many other ways deviate from the exact 
 truth without knowing that he does so. He may even mis- 
 take the visions which flit through his mind while uncon- 
 scious for facts ; or, what is more likely to happen, he may 
 receive from the conversation of those who are about him 
 when consciousness is returning, impressions as to what hap- 
 penened before the accident, which will assume the character 
 of convictions, and will be eventually regarded by him as 
 having been recalled by an act of his own memory. 
 
 Recently a case has come under my notice which may illus- 
 trate the danger of accepting testimony of the class last de- 
 scribed. 
 
 In the case of Filer against the New York Central R. R- 
 Co., Supreme Court Monroe Co., N. Y., Jan. Circuit for 
 1873, it was in evidence that Mrs. Filer, in leaving the cars 
 while under motion, at Fort Plain, was canght by her dress, 
 thrown down, and dragged some distance ; from which it was 
 claimed she suffered severe and permanent bodily injury. 
 She was unconscious after the accident for at least half an 
 hour, and perhaps longer 
 
 Being broughtto the stand, Mrs. Filertes-tified that she was in 
 structed by the brakeman to leave" the car while if was in mo- 
 tion — thus throwing the responsibility of the act upon the 
 Company; that when she fell she "gave one terrible scream;" 
 that a gentleman whom she particularly designated, shouted, 
 "She is killed." * * * " Then the bell rang," and from 
 this moment she lost all consciousness until she found herself 
 seated in a chair in the sitting-room of the depot 
 
 Her statement that the brakeman told her to step down, as 
 the cars would not stop any more, is contradicted by the 
 brakeman himself; and there are several other points in her 
 
CONSCIOUSNESS. 219 
 
 testimony, relating to the manner of the accident, which are 
 denied. 
 
 This case was tried again, on appeal, in July, 1875. In this 
 last trial I was called to the stand as an expert, particularly 
 in reference to the character of the injuries which she had 
 received ; but incidentally I gave it as my opinion that Mrs. 
 Filer's testimony ought, under the circumstances, to be re- 
 ceived with great caution, although I entertained no doubt 
 but that she testified to what she thought was true. 
 
 The jury gave a verdict again for the plaintiff, with in- 
 creased damages. 
 
 In this case there was no evidence that the loss of con- 
 sciousness was caused by concussion of the brain, or any other 
 bodily injury ; but it appeared to have been caused by fright 
 alone. I have no reasons, however, to suppose that this fact 
 affects the principle involved, or the rule, if any exists, gov- 
 erning the memory of preceding events, except as it renders 
 it more probable that the unconsciousness was transient and 
 slight ; but the evidence went to show that it was not very 
 transient or incomplete. 
 
 It will be observed, that in the brief presentation I have 
 made of this subject, I have done little more than to open the 
 ground for discussion and for future study. Some experience 
 in examining these cases renders it proper, however, for me 
 to suggest to those who undertake to prosecute similar in- 
 vestigations, that they will have to exercise great care in their 
 examinations, rejecting, of course, all who were intoxicated 
 before the receipt of the injury, or who were not sufficiently 
 intelligent or honest to be trusted in their statements, or who 
 had not completely recovered their intelligence since the re- 
 ceipt of the inj-ury. The inquisition should be close andcrit- 
 cal, even with those who intend to speak the truth, since it 
 will often happen that persons of this class will declare at 
 first that they can recall distinctly the last circumstance pre- 
 ceding the unconsciousness, when in fact they cannot. 
 
 I had finished writing this paper when, in the New York 
 Commercial Tor Nov. 28th, I found the following notice for a 
 new book : 
 
 "A new novel, named 'John Holdsworth's Chief Mate,' 
 
220 LOSS OF 
 
 has recently been printed in England. John Holdsworths' 
 ship is wrecked, and the hero, after almost intolerable suffer- 
 ing, is rescued — the last of all the crew. Holdsworth regains 
 his strength slowly and recovers, but he loses his memory. 
 He forgets his own name, his wife Dolly, his profession, and 
 the incidents of the wreck. ' He remembered nothing — lit- 
 erally nothing.' His actual life, as he was then living it, 
 practically dated from the moment of the return of his con- 
 sciousness. All that had gone before was pitch darkness. 
 John Holdsworth lives in this state for four years in Australia 
 under the name of Hampden. He then returns to England, 
 and when he reaches Southbourne, and sees the old house in 
 which he and Dolly lived, the memory which he had long 
 believed dead awakens. He finds that his wife has married a 
 drunken dentist to save herself and child from starvation, 
 Dolly does not recognize him. He does not disclose himself 
 to his wife, although he knows she is wretched with the man 
 she has married and whom she does not love. John was not 
 all unhappy, for he wins the love of the child born to him in 
 his absence, by many acts of kindness. Here the story bears 
 a resemblance to the plot of ' Enoch Arden,' but it is only a 
 resemblance. The novel ends in the orthodox way. The 
 drunken dentist is drowned, and John and Dolly are reunited. 
 The writer of ' John Holdsworth ' has placed before us a 
 curious psychological problem. To support his case he quotes 
 the story of William Stephens, from the Noon Gazette, of July 
 1772. William Stephens was wrecked, and rescued after 
 having clung to a portion of the wreck for three days. On 
 returning to England he remained for two years in entire 
 ignorance of his past, until, his memory returning, he set off 
 for Winchelsea on foot, and arrived to find his wife married 
 to one Eel, a cobbler, whose life Stephens threatened if he did 
 not restore to him his Nancy. This the cobbler wisely did, 
 and so the matter ended." 
 
 I have no means of determining how much of truth there 
 may be in the theory of Stephens, related in the Noon Gazette 
 more than 100 years ago : but in the light of my own experi- 
 ence it does not appear incredible, nor is the fiction of John 
 Holdsworth improbable. 
 
CONSCIOUSNESS. 221 
 
 In conclusion, I will relate briefly a case which will be 
 found reported, in my General Treatise on Surgery at page 
 526. A boy three years old, and who had already learned to 
 talk as well as other children of its age, received a severe frac- 
 ture of the skull, and was probably insensible for several 
 days. He recovered, however, after a time, and was killed 
 while serving as a soldier in the Federal army ; but after the 
 injury it was found that he had forgotten the use of language 
 and he had to be taught again as at first, beginning with 
 the words pa and ma. 
 
REPORT OF AN ADDRESS. 
 
 ON 
 
 MILK, 
 
 IN ITS MEDICO-LEGAL ASPECTS. 
 
 By Professor R. OGDEN DOREMUS, M.D., L.L.D 
 
 " Public attention has recently been attracted to the method 
 adopted by our Board of Health for examining Milk, viz : by 
 the lactometer, and the senses. In our city we have attacks 
 constantly made upon those who distribute the milk, chiefly in 
 small quantities, and we fail to go back, step by step, until we 
 reach those who perhaps really do interfere with the pure arti- 
 cle. I can state from actual knowledge, having paid many 
 visits to the country and neighborhoods of the city whence 
 our supply is brought, that I have found that the method we 
 adopt for criticising milk is rather a premium on dilution. For 
 the removing of the cream and the addition if water is, I be- 
 lieve, chiefly due to the employment of the lactometer. I 
 propose to show why the use of this instrument is erroneous, 
 although it is so popularly received as a test of purity, and 
 then* to demonstrate how, by the employment of this instru- 
 ment it becomes a very profitable business first to remove 
 the cream and fabricate butter from it, and then send the 
 milk to market diluted with water, which takes the place of 
 cream and brings the milk to the proper standard of grav- 
 ity. And first, we can never judge of milk by its gravity. 
 If milk is permitted to stand there is a light portion of it 
 that rises to the surface, which we call cream, thus showing 
 that it is lighter than the rest of the fluid, and it is this cream 
 that interferes with the working of the lactometer. " 
 
 Given before New York Medico-Legal Society, January 26, 1876. 
 
MILK IN ITS MEDICO-LEGAL ASPECTS. 223 
 
 "In chemistry we test the gravity of fluids by different means 
 one of the best being the little phial called the thousand grain 
 bottle, and if we try milk by this, it gives us the gravity, but 
 it is hot at all a test of purity." The Professor then experi- 
 mented with the lactometer in milk which, he said, had been 
 taken from the cow an hour or so previous, and that he knew 
 to be pure, and the scale showed 105 degrees. In cream 
 alone the instrument marked 7odegrees. He then continued ; 
 "If we place it in milk diluted with water we find a similar re- 
 sult, namely, that it will sink in the milk that is diluted, hence 
 we may have two samples, one rich with cream, and the other 
 diluted with water to a certain point, and the lactometer will 
 give the same result in each case ; thus, it is impossible to 
 determine by the gravity, whether the milk is rich in cream 
 or is diluted with water ; therefore we cannot trust the lacto- 
 meter ; it is no guide to indicate to us the purity of the 
 article." 
 
 He showed by experiment how the "alcoholometer " would 
 test the degree of dilution of alcohol with water, because 
 water is heavier than alcohol ; and on the same principle how 
 the " acidometer " would determine the amount of water in 
 sulphuric acid, for here the diluent is lighter than the acid ; 
 how the " oleometer " and "urinometer" are scientific aids 
 where the substances we are seekingfor, are uniformly lighter 
 or heavier than the liquid tested. 
 
 " Since cream and water are lighter than milk, while 
 caseine, milk sugar and the salts are heavier, it is impossible 
 to judge of the purity of milk by its specific gravity." 
 
 "Mr. Wanklyn, a celebrated English chemist, announces in 
 a work upon this subject that the lactometer is one of the 
 most untrustworthy of all instruments If the lactometer 
 sinks to a great depth, we can judge that the milk has been very 
 largely diluted, but nothing else. In fact its use is a 
 bid for adulteration. I tried the other day milk which stood 
 at 113 degrees ; the cream was removed, and it stood at 135 
 degrees. A gentleman in Orange County said to me, "Let 
 the City of New York adopt the lactometer as the test of 
 purity of milk, and I shall go into the milk business; but I 
 shall start a butter factory at the same time." I took samples of 
 
224 MILK, IN ITS 
 
 twelve different specimens of pure milk, which I saw drawn 
 from the cows, and five out of the twelve were below the stan- 
 dard of ioodeg. — 98, 95, 94, 92 and even to 90 deg. On bring- 
 ing that milk into the city and subjecting it to chemical an- 
 alysis, I found this result to be due to the richness in cream. 
 I remarked, that to have brought that milk into the New 
 York market would have subjected the dealer to a fine, and 
 possibly imprisonment. This variety of milk must not be 
 sold here, unless they will take off the cream when the laetome- 
 ter will rise to 120 deg, 130 deg. or more, and then it is sure 
 to pass the test. The great difficulty with the Board of 
 Health is, "What shall we do? What instrument can we 
 employ ?" A complete analysis would answer were it not a 
 process tedious and expensive." 
 
 "As the removal of a portion of the cream, and the addition 
 of water are the methods ordinarily adopted for imposing on 
 the public, the following partial analysis will serve. 
 
 Weigh about a teaspoonful of milk in a small shallow ves- 
 sel ; evaporate the water ; the loss observed on weighing the 
 residue, will indicate the amount of water. Extract the resi- 
 due repeatedly with ether, benzole, or othersolvent of fats ; 
 evaporate the volatile solvent adhering to said washed residue 
 and weigh a third time. This loss will be the fat. These 
 operations may be conducted in a short time. By a proper 
 arrangement of a water-bath, many samples can be analyzed 
 simultaneously." 
 
 That the microscope is apt to lead us to erroneous conclu- 
 sions he showed by placing several drops of the same milk on 
 different slides, and covering them with thin pieces of glass — 
 each exhibited a field containing different amounts of oil 
 globules; for the thin plates were attracted to the slides, some 
 with more force, others with less power, and consequently 
 pressed out more or less of the fat globules from the field of 
 vision. 
 
 "I recommend medical students to place milk, say from 
 different wet-nurses, in narrow test tubes to observe their 
 relative opacity; then to allow the cream to rise, and judge 
 of its quantity by the thickness of the layer; and lastly 
 
MEDICO-LEGAL ASPECT. 225 
 
 to coagulate the milk with a little acid and a gentle heat, to 
 learn the amount of caseine." 
 
 The Professor next exhibited a convenient water-bath, with 
 graduated glass tubes, as arranged by the celebrated instru- 
 ment maker of this city, Mr. G. Tagliabue, accompanied with 
 a diluted alkali, and a diluted acid in bottles. He tested sev- 
 eral samples of milk variously diluted, and showed that by 
 agitating them first with the alkali, next with the acid, and 
 then raising the temperature to about 190 degrees Fahren- 
 heit, and then immersing the tubes and their contents in cold 
 water, the depths of the various coagulations of cream and 
 caseine indicated their comparative richness in these impor- 
 tant ingredients. But his experiments with this method were 
 too limited to decide on the full value of this arrangement ; 
 he would report further at the next meeting. He also had 
 passed around among the members a small French instru- 
 ment for showing the opacity of milk. 
 
 "My chief object in presenting this theme to the Medico- 
 Legal Society was to solicit the discussion of the propriety of 
 seeking legislative interference to prevent the introduction 
 of skim med milk, unless sold as such, or milk otherwise dimin- 
 ished in nutritive value, into our city." 
 
 "I have tested very pure cream where the lactometer sank 
 to 32 degrees, at 60 degrees Fahrenheit ; whereas one sample 
 of milk, before skimming, stood at 113 degrees ; after re- 
 moving the cream it lifted the lactometer above its gradua- 
 tion, estimated at 135 degrees. — hence a very liberal dilution 
 with water was necessary to bring it down to a reasonable 
 point." 
 
 He again alluded to the fact that he had tested samples of 
 milk which he had seen taken from the different cows in 
 Orange county, and that five out of twelve, when cooled to 
 60 degrees Fanhreheit, indicated many degrees below the 
 standard adopted by the Board of Health — 100 degrees ; one 
 sample was as low as 90 degrees. 
 
 That he took these specimens to his laboratory, and sub- 
 jected them to chemical analysis, which demonstrated that 
 their low gravity was due to their richness in cream. 
 
2 26 MILK, IN ITS 
 
 He said, in conclusion, "the lactometer had been discarded 
 in every part of the civilized world. In France it was used 
 only as a preliminary test, the method of analysis being 
 the test, upon which punishment was based. There ought 
 to be some protection against the adulteration of so neces- 
 sary an article as milk. He thought it was within the 
 sphere of this Society to obtain proper legislation upon the 
 subject." 
 
 REPORT OF A COMMITTEE ON ADULTERATION OF MILK.* 
 
 The undersigned, a committee appointed to inquire into 
 the provisions of law to prevent the adulteration of milk, and 
 the sufficiency of tests to detect such adulteration, beg leave 
 to report : 
 
 That they have had the subject under consideration, and 
 are of the opinion : That the ordinance of the Board of 
 Health of February 23, 1876, section 186, would be sufficient 
 if enforced, and to insure its enforcement we recommend the 
 enactment by the Legislature of a statute of similar import. 
 That the lactometer, as a test to detect adulteration or im- 
 purity, is unreliable and practically useless, and that chemi- 
 cal science affords prompt, sure and simple means, at little 
 expense, by merely determining the quantity of water and 
 butter that will furnish the needed evidence in efforts to pro- 
 tect the public against the wrong complained of. 
 
 In the opinion that the lactometer is not reliable as a test 
 we are supported by the best scientific authorities Among 
 many others, the following may be named : 
 
 Wurtzs Dictionnaire de Chimie, p. 192: "There exists no 
 constant relation between the density of milk and its chemi- 
 cal composition." Pages 198 and 199 : — A table of seventeen 
 analysis of cows' milk by standard English, French and Ger- 
 man authorities, six of which had the specific gravity of 1027, 
 and containing in some cases 8 per cent, butter. 
 
 Bouchardat and Quevenne, pp. 2, 3 and 7 of their work, en- 
 titled "£>u Lait. 1 ' 
 
 Submitted April 5, 1876.* 
 
MEDICO-LEGAL ASPECT. 227 
 
 Gorup-Besanez Lehrbuch der Physiologischen C/iemie, 1867, p. 
 404 ; " From these researches it it is also evident that the 
 specific gravity of milk cannot serve in determining its qual- 
 ity." Page 420 : " The specific gravity, as we have already 
 shown, gives absolutely no standpoint for determining the 
 compositoin of milk." 
 
 Hoppe-Seyler, Handbuch der Physiologisch und Pathologisch 
 Chemischen Analyse, 1870, p. 363: "Notwithstanding its use 
 by many police boards, it (the lactometer) must be thrown 
 aside." 
 
 Watt's Dictionary of Chemistry, Vol. Ill , p. 1022 • "Accord- 
 ing to Baumhauer (loc. cit.), all determinations of the com- 
 parative purity of milk by instruments like those above de- 
 scribed are very inaccurate." 
 
 J. A. Wanklyn, Milk Analysis, 1874, p. 8 : "The lactometer 
 is a most untrustworthy instrument." "There hardly ever 
 was an instrument which has so utterly failed as the lacto- 
 meter." Page 11 : "From a careful consideration of the 
 whole subject, I am convinced that one of the most necessary 
 steps to be taken in milk analysis is to abandon the use of 
 the lactometer." 
 
 Charles F. Chandler, Ph.D. American Chemist. July 1871, p. 
 26 : "The lactometer is a very unreliable guide, as skimming 
 causes the milk to appear better, while watering exerts the 
 opposite effect. By resorting to both forms of fraud at the 
 same time the normal gravity of the milk may be preserved. 
 By analysis, however, we can decide the quality of the milk 
 with more certainty." 
 
 Your committee beg to refer with approval of the opinion 
 of the General Term of the Supreme Court, delivered by Mr. 
 Justice Brady in the case of the People vs: John Kneib : "The 
 vender of such an article deserves and should receive pun- 
 ishment ; but the process by which the adulteration is deter- 
 mined should be free from doubt. If by tests made by scien- 
 tific men, the lactometer or lactodensimeter furnishes only 
 questionable evidence of adulteration, it should not be re- 
 garded as sufficient to warrant a conviction. There should 
 be superadded evidence which would remove the doubt.; and 
 if analysis be necessary for the purpose, it should be made. 
 
228 MILK IN ITS MEDICO-LEGAL ASPECTS. 
 
 The milk supposed to be adulterated, and offered for sale, can 
 be purchased and so tested that the result must be certain 
 beyond reasonable doubt. The testimony given on the trial 
 herein, and presented on this appeal, establishes clearly that 
 such a test can be made. It may be troublesome, but the 
 Board of Health seems to be vested with the necessary 
 power to have it done, and the duty of protecting the com- 
 munity from illegal traffic, of which it is a dangerous ele- 
 ment, demands careful and rigid scrutiny. When the proof 
 is certain, the punishment should be as severe as the law 
 permits." 
 
 The section of the ordinance above referred to is as 
 follows : 
 
 Sec. i 86. No milk which has been watered, adulterated, re- 
 duced, or changed in any respect by the addition of water or 
 other substance, or by the removal of cream, shall be brought 
 into, held, kept, or offered for sale at any place in the city of 
 New York, nor shall any one keep, have, or offer for sale in 
 the said city any such milk." 
 
 Adopted February 23, 1876. 
 
 All of which is respectfully submitted. 
 
 R. Ogden Doremus, M.D. Geo. H. Yeaman. 
 
 Geo. W. Wells, M. D. C. A. Seward. 
 
 T. C. Finnell, M,D. R. S. Guernsey. 
 
 R. R. McIlvane, M.D. D. S. Riddle. 
 A. N. Bell, M. D. 
 
 The Report was adopted as the sense of the Society. 
 
W: 
 
 
 ^■■■^ 
 
 
 ALFRED SWAYNE TAYLOR, M. D. 
 
Dr. Alfred Swayne Taylor. 
 
 Dr. Alfred Swayne Taylor was born in 1806, and qualified 
 as a medical man in 1828, after studying at Guy's Hospital 
 and in the principal medical schools of the continent of 
 Europe. In 1831 or 1832 he was appointed Lecturer on 
 Medical Jurisprudence at Guy's Hospital, an appointment 
 which he held till his resignation in 1878. During this 
 period of forty-six years, Swayne Taylor acquired a great 
 reputation as a medical jurist, ranking with those of Caspar 
 and Tardieu. He was conned ed with most of the great Eng- 
 lish medico-legal cases for a period of thirty-five years, and 
 was a trusted adviser and chemical expert of the British 
 Government. 
 
 Though not exclusively, it was chiefly as a toxicologist 
 that Swayne Taylor acquired his great and justly merited 
 reputation ; and his name is indissolubly associated with the 
 trial of Terwell for poisoning his mistress with prussic acid, 
 and with that of Palmer for the murder of Cook by strychnia. 
 Taylor's "Principles and Practice of Medical Jurisprudence' 7 
 is a standard British text-book among lawyers and medical 
 men ; and his work on " Poisons," though somewhat out of 
 date, is a valuable work of reference. For many years he 
 edited the Medical Gazette, and was an accomplished and pro- 
 lific writer. Whatever he undertook, Taylor did well, and 
 being all his life possessed of sufficient means, no pecuniary 
 advantage ever led him to undertake what he had not suffi- 
 cient time to carry out thoroughly. 
 
 In person, Dr. Taylor was tall, erect, and -imposing, with a 
 singularly penetrating glance and handsome, dark eyes. His 
 manner was most graciousto students, strangers, and friends, 
 but he was a bitter and relentless foe to anyone who ven- 
 tured to oppose him, especially in his own department of 
 professional practice. As a witness, he was magnificent — 
 
DR. ALFRED SWAYNE TAYLOR. 
 
 cool, suave, positive, and not to be shaken on cross-exami- 
 nation or when opposed by other distinguished professional 
 opinion. His hatred of lawyers found full vent in his text- 
 books on medical jurisprudence. Those who knew him and 
 saw how he was respected in private life, would scarcely sus- 
 pect how keen and sarcastic he could be to foes. He was 
 an Honorary Member of the Medico-Legal Society, and his 
 memory and talents are universally respected in all English, 
 speaking countries. t. s. 
 
 The portrait is from a photograph kindly furnished by his surviving 
 daughter, and the notice by his warm friend and admirer, Dr. Thomas 
 Stevenson, of London. c. B, 
 
" Mysterious Disappearances, 
 
 AND 
 
 PRESUMPTIONS OF DEATH IN INSURANCE CASES.' 
 
 By WILLIAM G. DAVIES, A.M., B.S., of the N. Y. Bar. 
 
 In looking over the titles of the papers which have been 
 read from time to time before this Society, I observe that it 
 has exercised a most catholic toleration towards their au- 
 thors, and allowed them to treat of any subject which ap- 
 peared to be even remotely connected with the object of its 
 existence. An especially favorite topic seems to have been 
 suicide, and the always interposed plea of insanity in life in- 
 surance cases ; and with that fact in view, I do not feel that 
 I am asking too much indulgence when I invite *your atten- 
 tion to another class of frauds perpetrated upon companies 
 engaged in that business ; and even if my discourse is not 
 Sufficiently profound to entitle it to rank with the many able 
 and thoughtful papers which have been read before this 
 body, it is well to remember that the bow of Apollo was not 
 always stretched, and that it is good sometimes to unbend> 
 and waive instruction in favor of entertainment. 
 
 Before entering upon my subject, permit me for a moment 
 to advert to the unreasonable nature of the charge now so 
 frequently made against life insurance companies, that they 
 seize every pretext to resist the payment of a claim ; and 
 complaint is especially made, that after receiving premiums 
 for years, they will, when death occurs, object that some false 
 
 Read before New Yoik Medico-Legal Society, March I, 1876. 
 
230 MYSTERIOUS 
 
 statement has been made in the application which avoids the 
 policy. To the careless and unthinking such conduct does 
 appear to be reprehensible, and it would seem at first sight 
 that companies should make their initiatory examination 
 so ngid and thorough, that after the applicant has once 
 been accepted, a policy issued to him, and his premiums reg- 
 ularly paid and received for a series of years, they should be 
 concluded by their action, and estopped from raising any 
 question as to the physical or moral condition of the insured 
 at the time of the examiriation, So attractive is this idea to 
 those who have merely glanced at the superficial aspect of 
 the question, that the Legislature of a Western State, a few 
 years since, solemnly enacted that after a policy had been 
 issued on a life, and the premiums regularly paid for three 
 years, no defense should be interposed by the company in an 
 action on the policy on the ground of misrepresentations 
 made in the application. Unfortunately for the object which 
 these modern Solons had in view, their respect for the prin- 
 ciples of the Common Law campelled them to add, except in 
 cases of fraud, and as that defense would be made by a com- 
 pany only in such cases, the statute avoids itself. The con- 
 stitutional prohibition of the enactment by any State of an 
 act impairing the obligation of contracts, would probably 
 render such a statute worthless ; but the one thus cited is 
 curious as showing the endeavor of the legislators to remedy 
 what they considered a wrong, and yet what they were 
 obliged to confess that they considered a right. For the in- 
 surer of a life stands in a very different position from him 
 who insures a house ; the latter may examine his risk care- 
 fully and thoroughly — he may measure its distance from ad- 
 joining buildings, the nature of the walls between it and 
 them, the internal supports, the arrangement of the heating 
 apparatus, the character of the roof, the probability of total 
 or partial loss in case of fire, the efficiency of the department 
 on which he must depend for the extinction of a conflagra- 
 tion, the nature of the business carried on in it and adjacent 
 buildings, and every conceivable element which enters into 
 the calculation of his risk. They are all existent patent to 
 his investigation, and it is his own fault if he does not enter 
 
DISAPPEARANCES. 
 
 231 
 
 into his contract with a clear and perfect understanding of 
 the risk which he assumes. With the insurer of life the 
 case is very different. Certain elements of the calculation nre 
 of course within his reach. He can estimate properly the in- 
 fluence of the climate in which the proposed life dwells, the 
 hazard of his occupation, the especial diseases to which his 
 locality is exposed and the average length of human life. 
 From all these facts he can deduce a table of life which will 
 enable him to rate exactly the cost of insuring the theoretical 
 man. But when he comes to carry his theories into practice, 
 he has in reality no means of ascertaining whether the life 
 proposed reaches the average standard but from statements 
 made him by that proponent. The medical gentlemen who 
 honor me with their attention know very well that there may 
 be inherited, or even acquired tendencies towards certain 
 diseases, which no physical examination will detect, and 
 against which the insurer can be warned only by a true and 
 accurate family history. The tremendous influence over the 
 question of life or death which is wielded by such tenden- 
 cies, by habit, by temperament, is an important factor in 
 every calculation upon a single life, and cannot be properly 
 estimated unless every circumstance or fact which the insurer 
 desires to know is stated to him fully and accurately. I have 
 in my mind at this moment a case in which the applicant for 
 insurance presented a clear, unquestionable record. One 
 sister had died of yellow fever — it was true, but he omitted 
 to add that, had the fever spared her, she would have died of 
 consumption within six months. Another sister died of sup- 
 pressed menses — it was also true, but he omitted to st ite that 
 vicarious menstruation ensued from the lungs, and caused 
 her speedy death. So with several other members of his fam- 
 ily, who with well developed phthisis, had actually died from 
 other causes. The applicant himself was apparently sound; 
 and physical exploration failed to discover any symptoms of 
 disease, yet his death within a year from consumption showed 
 that he must have had strong tendencies towards that disease, 
 and investigation developed the facts I have detailed. As is 
 Usual in such cases, no ground of suspicion was presented 
 until the death occurred. Then the very fact of such a death 
 
232 MYSTERIOUS 
 
 showed that misrepresentations must have been made, and 
 not until supicion was thus aroused was such an investigation 
 deemed desirable. It is practically impossible to verify at 
 the outset every statement made by an applicant for life in- 
 surance, and as he knows, and from the nature of the case 
 must know, the truth or falsity of what he alleges, it is only 
 just that those claiming under him should be bound by liis 
 representations. If his death occur from a cause or under 
 circumstances inconsistent with his statements, the insurer 
 is, for the first time, informed that those statements were 
 false, and is justified, both in law and in good morals, in re- 
 sisting a demand based upon a contract into which he was led 
 by the misrepresentations of the contracting party upon whom 
 he relied. 
 
 Yet, when we consider the magnitude of the business of 
 life insurance in this country, it is surprising to see how few 
 cases are contested out of the immense number which are 
 paid without a question, although many of the latter are 
 doubtless tainted with fraud. 
 
 From the last report (April, 1875,) of the Insurance Super- 
 intendent of this State, I find that fifty American companies 
 reported to him in detail their business for the previous year. 
 During that period these companies returned to their policy 
 holders in payments for death-claims, and lapsed or surren- 
 dered policies, over forty-eight millions/pf dollars, while the 
 entire amount reported as in litigation was but little over one 
 million. That is to say, the total amount of claims disputed 
 for every cause, and many of which had been pending for 
 years, was only a trifle more than two per cent, of the sum 
 paid to their customers in a single year. The bare statement 
 shows the absurdity of the pretense that these companies 
 prefer to dispute claims upon them, and it may fairly be 
 added that no solvent company ever resists a demand will- 
 ingly. No matter how just the resistance may be, or how 
 bare-faced the fraud which may be attempted, the fact of the 
 resistance is all that strikes the popular attention, and it is 
 made a handle for attack and abuse. Were it not that the 
 officers of these companies are usually honorable and high- 
 minded men, who properly appreciate the sacredness of their 
 
DISAPPEARANCES. 233 
 
 trust and their duty to their honest policy-holders, we should 
 hear nothing of contested claims, and a grand field would be 
 open to modern rascality. 
 
 It must be noted that this statement of litigated claims in- 
 cludes every variety of demand, from that based upon a doubt- 
 ful point of law, to that resting upon the most outrageous 
 fraud. 
 
 If this digression has answered no other purpose, I trust it 
 may have shown that while life insurance companies are ex- 
 tremely averse to litigation, they are peculiarly exposed to 
 frauds, and prepared the way for the consideration of the par- 
 ticular class of rascalities to which I invite your attention. 
 
 The number of people who live by their wits depends upon 
 the state of civilization of the country in which they exist and 
 increases pari passu with the latter. When a man, as in his 
 primeval state, is utterly dependent upon his own exertions, 
 and must kill and cook his own dinner or go without it, 
 rogues have no field for their operations ; but with the in- 
 crease of mutual dependency, and the accretion of individual 
 or corporate wealth, comes the opportunity for its fraudulent 
 attainment. With the opportunities which life insurance 
 companies offer for a heavy insurance and a simulated death f 
 it is singular that this field has not been more freely worked, 
 to use the professional slang, yet the few instances I have to 
 detail are all that havabeen discovered, although no one knows 
 how many frauds have escaped detection. 
 
 Mr. John Francis, in his entertaining work entitled the 
 "Annals, Anecdotes and Legends of Life Assurance," with 
 all his laborious research, has been able to find but two such 
 instances of attempted fraud. The first occurred at Berlin, 
 Germany, in 1848, where a surgeon had been bribed to cer- 
 tify to the death of a person heavily insured, and a coffin 
 filled with stones and rotten straw was solemnly interred with 
 all the religious ceremony and friendly attention appropriate 
 to the occasion. Unhappily for its instigator, the plot was 
 Soon discovered and all the parties interested properly pun- 
 ished. The same trick was attempted a few years since in a 
 Western State, with the same result. 
 
 The second case related by Mr. Francis shows rascally 
 
234 MYSTERIOUS 
 
 genius, and was so well planned tliat no suspicion was ex- 
 cited and success was achieved. A party of four men in 
 London hired a boat one evening about dusk, just below 
 Blackfriar's bridge, and proceeded for a pleasure excursion 
 up the Thames. While rowing quietly along and not far 
 from shore, the boat was suddenly and apparently without 
 cause overturned, and its four occupants were struggling 
 amid the darkness in the water. Their cries for help were 
 speedily answered by the numerous boats in the vicinity, and 
 three of the party were soon in safety, but the fourth could 
 nowhere be found. Careful search was made without result, 
 and the survivors were loud in their lamentations over the 
 unhappy fate of their dear friend. They were compelled re- 
 luctantly to leave the spot whei e he had been lost, but not be- 
 fore offering a large reward for the recovery of his body. Late 
 that night the same party in a small boat with muffled oars, 
 proceeded stealthily down the river, and placed a dead body 
 procured from some hospital or cemetery at a point on the 
 river bank, where the tide would be likely to throw a corpse 
 drowned at the spot where their accident had occurred. The 
 next morning they reappeared upon the scene, heard with 
 astonishment and delight that the body of their deceased 
 comrade had been found, recognized the corpse at once, and 
 paid with alacrity the reward which they had promised. The 
 coroner's inquest was held in due form, the accident de- 
 scribed, the three survivors identified the body as that of 
 their deceased friend, and a verdict of accidental death was 
 duly rendered. The proceedings with other proper proofs 
 were presented to the company which had a large insurance 
 on the life of the supposititious deceased, and as everything 
 appeared to be perfectly regular, the money was duly paid to 
 the claimant. Not until the parties concerned had the au- 
 dacity to attempt the same operation a second time, was the 
 fraud discovered. The admirers of Mr. Chas. Reade may 
 remember that he has worked this incident into the life of 
 one of his characters in a recent novel. 
 
 An ingenious gentleman in Massachusetts, who had em- 
 barrassed his affairs by a long continued series of forgeries, 
 and had become somewhat apprehensive of the result to him- 
 
DISAPPEARANCES. 235 
 
 self, recently endeavored to solve his difficulties by a myste- 
 rious disappearance from a Fall River boat. He was known 
 to have left New York on it, but was not seen the next morn- 
 ing, arid on examination his outer clothing was found in his 
 state-room, but no trace of himself. His life was heavily in- 
 sured, he was known to be financially embarrassed, and the 
 first supposition naturally was that he had committed suicide. 
 Unfortunately for the success of his well-laid plans the vic- 
 tims of his crimes were sufficiently skeptical of his death to 
 secure a large detective force to trace him, and their efforts 
 resulted in his arrest at San Francisco as he was about to em- 
 bark for Australia. His plan of operation had been very 
 simple — he merely left the suit of clothes he had worn in his 
 state-room, taking another from his valise, shaved his beard 
 and whiskers, and stepped forth so altered that no casual 
 observer the next morning recognized him as the man they 
 had seen the night before. 
 
 More careful construction of a plot and greater attention 
 to details was shown by two men named Shepherd, who con- 
 cocted a fraud upon three insurance companies some two 
 years since. About the middle of July, 1873, one George 
 Shepherd called at the house of a farmer in Maryland, living 
 near the Potomac River, nearly opposite Alexandria, and 
 asked and obtained permission to spend the night. One of 
 the family was a boy about sixteen years of age, apparently 
 a simple, well-meaning creature not overburdened with 
 brains, who seemed to Shepherd a fitting tool for the scheme 
 he had in mind. In the course of the evening's conversation 
 he suggested to the farmer, who spoke of his desire for addi- 
 tional help in harvesting, that he had a brother living with 
 him in Alexandria who would be glad to accept a short en- 
 gagement. The proposal was accepted and James Shepherd 
 entered into the farmer's employ, his brother visiting him 
 almost daily and thus continuing his own acquaintance with 
 the family. After a week of these preliminaries, James, who 
 had by this time become quite well acquainted with the boy 
 already mentioned, proposed to him one evening to go out 
 on the river for a fishing excursion with his brother George> 
 and the two together went to the water, where they found 
 
236 MYSTERIOUS 
 
 George in a boat. This latter had some peculiarities of con- 
 struction which are entitled to especial mention. It was an 
 ordinary working boat about twelve feet in length, having 
 two seats in the centre, but none in the bow or stern. On 
 the latter was fastened a platform which projected out over 
 the water some ten or twelve inches, and almost as much on 
 each side, and a rope ran along the outside of the boat from 
 the bow to the stern, and dragged some additional length in 
 the water. The weather was warm, but George wore a rub- 
 ber coat over his other clothing. In this boat thus prepared 
 the party started about dusk, James and the boy each pull- 
 ing an oar and George sitting in the stern. They stopped 
 twice and anchored to fish, and having consumed the time 
 until it was quite dark, the night being cloudy, the Shep- 
 herds proposed to pull up the anchor to go ashore. They 
 were then on the flats between the channel and the shore, 
 the moon was obscured by thick clouds, and the only 
 light visible proceeded from a light-house 'on the Virginia 
 shore opposite to them. On the return trip the position of 
 the parties was somewhat altered ; George sat in the bow of 
 the boat, the boy in the centre, pulling both oars, so that his 
 back was towards him and his attention fully occupied, and 
 James on the other seat. Suddenly, as the boat was proceed- 
 ing quietly without any jar or shopk, a splash was heard, 
 James cried out that his brother had fallen overboard, and 
 the boy turning his head, saw him for one brief instant near 
 the boat on the surface of the water, beneath which he im- 
 mediately sank. The two rowed about for some time, and 
 poked with their oars on the bottom of the river, but of 
 course did not find what one of them, at least, knew very well 
 was not there. After fifteen minutes spent in this useless 
 employment they proceeded to the shore, when the boy was 
 at once sent to a distance to inform aneighbor of the acci- 
 dent, thus giving George an opportunity of coming out from 
 under the stern of the boat, where he had supported himself 
 by the rope, and betaking himself to a place of security. The 
 neighbors were told the story, and urged to search for the 
 body, but the rogues were inferior to their English proto- 
 types in neglecting to procure a corpse to personate the ab- 
 
DISAPPEARANCES. 237 
 
 sent one, and no body was ever found. James remained in 
 the farmer's employ for a few days longer, until he had recov- 
 ered from his grief sufficiently to enable him to take the boy 
 before a notary public in Alexandria, and have him swear to 
 an affidavit detailing the circumstancesof the death of George 
 as he understood them, and then he too disappeared from 
 view for a while. 
 
 About this time the police of Alexandria became very much 
 exercised about the mysterious movements of some men who 
 appeared to be living in a swamp near the town, and as it was 
 feared that thev were plotting burglaries at least, it was de- 
 cided to effect their capture. A sudden and unexpected 
 movement resulted in the discovery of the Shepherds' boat, 
 containing two men, one of whom escaped at the first alarm, 
 but the other, who proved to be James Shepherd, was taken 
 prisoner. He was found to be heavily armed, and to have on 
 his person three policies of insurance which had been issued 
 by as many companies upon the life of his brother George, 
 and the affidavits of the latter's death made by the boy and 
 himself. In his first fright and alarm he confessed the whole 
 fraud, but subsequently decided to contradict his statements, 
 and to plead not guilty to the indictment which was found 
 against him for perjury in swearing to his brother's death ; 
 the event proved his wisdom, for the jury before whom he 
 was tried were unable to make up what they were pleased to 
 call their minds, although several witnesses deposed to hav- 
 ing seen George Shepherd since the time of his alleged death, 
 and their disagreement was a virtual discharge for the pris- 
 oner. He was so emboldened by this success, that he had an 
 administrator of his brother's estate appointed in Richmond 
 and commenced a suit on the policies in his name. It is 
 needless to add that it is not one which gives the companies 
 interested much anxiety, familiar as they are with the extra- 
 ordinary vagaries of petit juries. 
 
 A very striking instance of the tendency of the average 
 jury to find a verdict against a life insurance company in all 
 cases, without the slightest attention to the law or the facts 
 involved, is afforded by the Goss-Udderzook conspiracy, 
 which reached its final determination year before last in the 
 
238 MYSTERIOUS 
 
 execution of one of those parties for the murder of the other. 
 The whole case is so startlingly dramatic and so thrilling in 
 its incidents, that I trust I may be pardoned for dwelling 
 upon it at some length. 
 
 In the winter of 1871-2, Winfield Scott Goss was a young 
 mechanic in the city of Baltimore, a man of about thirty-six 
 years of age, of considerable inventive ingenuity, devoting 
 much of his time to new mechanical devices, ' somewhat in- 
 dicted to intemperance, of superb physique, and, unfortun- 
 ately for himself and fellow-conspirators, of conspicuous and 
 striking presence. A good-natured, good-humored fellow, 
 not possessing a high order of intellect, rather idle and shift- 
 less, and completely under the control of his brother-in-law, 
 Wm. E. Udderzook, who is the villain of the story. Goss 
 had for two or three years carried a policy of $5,000 on his 
 life, when the plan was formed to perpetrate a deliberate 
 fraud upon the insurance companies. As the existing policy 
 was hardly a sufficient prize, the first step was to increase the' 
 amount, and in December, 187 1, Goss applied to other com- 
 panies for two more policies of $10,000 each. Being physi- 
 cally an excellent risk he was at once accepted, and having 
 raised the funds to pay the first quarterly premium oh each,. 
 he was in possession of policies aggregating $25,000. His 
 next step was to announce to his friends that he purposed 
 entering upon a series of experiments in the hope of making 
 an artificial india-rubber, and with this ostensible object he 
 hired a small shanty some distance from Baltimore, on the 
 York Road, in a thinly settled neighborhood, where he estab- 
 lished his laboratory. On the second of February, 1872, Goss 
 and Udderzook went together in the afternoon to this build- 
 ing as usual, and remained there some time. About eight 
 o'clock in the evening Udderzook appeared at the door of a 
 farm-house situated at a distance of half a mile, and begged 
 for a lamp, stating that the one which they had been using 
 burned very badly, and afforded scarcely any light. This 
 request having been complied with, he started to return, car- 
 rying the lamp and accompanied by a son of the family whom 
 he had invited to go with him. They had proceeded but a 
 short distance when their attention was attracted by a gleam 
 
DISAPPEARANCES. 239 
 
 of light, and on the suggestion of Udderzook that the labora- 
 tory must be on fire, they started on a run. Arriving at the 
 building they found it all in flames, a crowd of people assem- 
 bled, and some engines from the city on hand and at work. 
 It was soon evident that the building must be entirely de- 
 stroyed, and then for the first time Udderzook made inquiries 
 for his brother-in-law, and expressed the fear that he had 
 perished in the conflagration. The thought that a fellow- 
 creature might be endangered increased the exertions of the 
 firemen, and in a short time the flames were beaten down 
 sufficiently to allow the form of a man to be indistinctly seen 
 amid the ruins. After several unsuccessful efforts, a hook was 
 inserted in it, and it was dragged out smoking and burning- 
 The flesh of the head was entirely consumed, as was the 
 major part of the limbs; in fact, little but the skull, trunk, 
 and a portion of one of the thighs, was left. At the coron- 
 er's inquest the next day, however, the remains were identi- 
 fied by Mrs. Goss, a brother, Alexander C. Goss, and by Ud- 
 derzook, who also detailed the circumstances of his leaving 
 his brother-in-law, and supposed that the lamp which they 
 had used had suddenly exploded, setting fire to the building 
 and burning or otherwise crippling Goss, so that he was un- 
 able to escape. The explanation was probable and satisfac- 
 tory, the verdict was duly rendered, and the weeping widow 
 and mourning friends followed to the grave, with all becom- 
 ing religious ceremonial, what the coroner's jury had certi- 
 fied to be the mortal remains of Winfleld Scott Goss. 
 
 The proofs of death were duly presented, everything ap- 
 peared to be entirely regular, and the conspirators believed 
 themselves to be certain of success. But there is always 
 danger of overdoing a job of this character, and that was the 
 error committed in the present instance. The two companies 
 who had but just issued their policies for $10,000 each, were 
 naturally annoyed at so large a loss occurring so speedily, 
 and set to work to scrutinize all the facts in the case with the 
 greatest care. The first discovery of importance was that 
 Goss was utterly unable to carry so large an amount of insur- 
 ance. His income was limited, and insufficient to cover his 
 expenses ; he was in debt to quite an extent, and had even 
 
240 MYSTERIOUS 
 
 been obliged to borrow money to pay the first premiums ort 
 his new policies. It was therefore clear that he could not 
 have intended to carry them long, and had obtained them 
 only for some immediate object. This was sufficient to ex- 
 cite suspicion, and the unusual nature of the death added to 
 it. The character of Udderzook was not altogether beyond 
 question, and his conduct at the farm-house when he went to 
 obtain the light excited the comment of the people there. It 
 appears that he sat and conversed with them for some time 
 before stating his object in coming, and, after he had men- 
 tioned it and obtained the light, he still, lingered so long that 
 they felt obliged to remind him of the comrade whom he had 
 left in the dark, and to advise his speedy return. This ap- 
 parently inexplicable delay seemed intended to allow the fire 
 ample time to get well under way before he reappeared. 
 Again, his apparent forgetfulness of his brother-in-law on his 
 arrival at the scene of the disaster, and his neglect to make 
 any inquiry for him until it was too late to make any effort 
 to extricate him from his supposed position, tended to show 
 that he did not wish to have the body drawn from the fire 
 until it had been so far destroyed as to render any attempt at 
 identification hopeless. In the endeavor to strengthen his 
 case, he committed a blunder which injured it very seriously. 
 A few days after the catastrophe, he produced the watch of 
 Goss which he said he had discovered among the ruins, al- 
 though these had been searched by hundreds of curiosity 
 seekers, and nothing of importance found. This watch he 
 swore that Goss had carried on the night of the fire, but 
 while the heat had almost entirely consumed the body, 
 the watch which was said to have been on it, was not melted 
 nor even tarnished or injured in any way. Careful investi- 
 gation also showed that on the afternoon of the fire, a man 
 supposed and believed to be A. C. Goss, a brother of the in- 
 sured, had hired a horse and wagon from a livery stable in 
 the city, and had not returned with it until late in the even- 
 ing. The theory adopted by all the companies, in view of 
 the facts, was that a body had been procured from some poor 
 house or cemetery and conveyed to the shanty, in the after- 
 noon ; that Goss and Udderzook had together saturated the 
 
DISAPPEARANCES. 241 
 
 corpse and building with coal-oil to ensure their destruction, 
 that after the latter had gone for the light, the former had 
 set fire to the house, and then jumping into the buggy held 
 in readiness by his brother, driven to a small station nearby, 
 at which the evening train from Baltimore stopped, and pro- 
 ceeded in that to Philadelphia, while his brother returned with 
 the buggy to the city, and Udderzook wept over the charred 
 remains drawn from the fire. The companies therefore de- 
 clined to pay the policies, and the widow promptly com- 
 menced suit against them. 
 
 So far the defense had only conjecture and suspicion to 
 rely upon, and as it was certain that no favors could be ex- 
 pected from a jury, it was most important that positive evi- 
 dence should be discovered. Photographs of Goss were 
 freely distributed throughout this country and Canada, and 
 every effort made to reach his hiding-place, but without suc- 
 cess. He seemed to have disappeared from the face of the 
 earth as completely as if he had really perished in the 
 flames. 
 
 In the Spring of 1873, as the time of trial drew near, and it 
 became evident that Goss could not be found, it occurred to 
 the law officer of one of the companies that, in the absence 
 of any distinctive marks on the buried remains, it might be 
 worth while to examine the teeth. It had been noted that 
 the insured had a remarkably perfect set, and several of the 
 persons examined, in describing his personal appearance, had 
 especially referred to their whiteness and regularity as being 
 extremely noticeable. Personal interviews with over fifty 
 dentists in Baltimore, Washington and Philadelphia, failed 
 to show' that any work had been done for him by any of 
 them, and his wife and relatives were all certain that he had 
 never been to a dentist, and never had any trouble with his 
 teeth requiring attention. It remained to ascertain whether 
 the corpse had been equally fortunate in an exemption from 
 the ill which afflicts so much of humanity, and proper author- 
 ity was obtained for its exhumation in the presence of com- 
 petent witnesses. A moment's examination sufficed to show 
 that the dental system of the deceased was an utter wreck, 
 the condition of his mouth being such that his articulation 
 
242 MYSTERIOUS 
 
 must have been affected, and that no one could have con- 
 versed with him in his life-time without observing the defect. 
 Here, then, was proof positive that the remains found in the 
 burned building were not those of Goss, and with this fact 
 added to the conjectures already indicated in their possession 
 the companies went confidently to trial in Baltimore. 
 
 All the circumstances of the case were brought out fully 
 on that occasion, much more powerfully and plainly than I 
 have stated them; and impressed upon the jury with all the 
 eloquence and skill which learned counsel could bring to 
 bear; the judge and all the hearers, exeept chose it was im- 
 portant to convince, were thoroughly satisfied that a great 
 fraud had been committed ; but the jury brought in a verdict 
 for the plaintiff on general principles. Of course a motion 
 was at once made to set it aside, as being against the weight 
 of evidence ; and, pending the decision of that question, we 
 may allow the curtain to fall on the first act of our drama. 
 
 It rises again to show us, some six weeks after the trial, a 
 distant spot in Chester County, Pennsylvania- A farmer re- 
 siding near a little clump of trees known as Baer's Woods 
 was struck by noticing a large number of vultures hovering 
 over them- Seeing from their manner that something un- 
 usual attracted them, he had the curiosity to visit the spot 
 where they were congregating, and discovered to his horror 
 that they were feasting upon a portion of a human body, the 
 abdomen of which, thinly covered by a layer of earth and a 
 few leaves, was protruding from the ground. The local cor- 
 oner was at once summoned, with other neighbors, and a 
 careful examination of the vicinity made. The fragment 
 already uncovered by the vultures proved to be the 
 trunk of a large, full-sized, well-developed man ; at a 
 little distance, where a recent disturbance of earth indicated 
 that other discoveries might be made, were found buried the 
 limbs ; and a third hole contained the head and a bloody 
 shirt. The remains were carefully carried to the neighboring 
 village of Jennerville, and conjecture at once set to work to 
 identify the victim and his murderer. 
 
 The latter was speedily indicated. Some. days before, Wm. 
 E. Udderzook, who had spent his boyhood there, and whose 
 
DISAPPEARANCES. 243 
 
 mother still resided in the neighborhood, had arrived there 
 with a friend whom he represented as the traveling agent of 
 a Western firm, and then suffering from delirium tremens. The 
 invalid kept himself carefully concealed from observation, 
 while Udderzook made various visits in the neighborhood, 
 and. among others, to another brother-in-law, one Samuel 
 Rhodes, a farmer residing near Baer's Woods, to whom he 
 broached a scheme of securing a large sum of money by 
 making away with a man whom he represented as being al- 
 ready dead to the world and about whom no inquiries would 
 ever be made. Rhodes having declined this easy method of 
 acquiring weahh, Udderzook decided to execute his purpose 
 alone. The next day between i and 2 o'clock in the after- 
 noon, being July 1st, 1873, he hired a horse and buggy from 
 a neighboring livery-stable, and with his companion drove 
 away in the direction of Baer"s Woods. Shortly before mid- 
 night he returned alone, and stated that his companion had 
 taken the cars at a station near; and the next morning, after 
 a visit to his mother, he himself returned to Baltimore. As 
 he was well known in the neighborhood, his account of the 
 stranger and his disappearance was entirely satisfactory ; but 
 when the mutilated remains were discovered and recognized 
 as those of his unknown companion, suspicion was at one ex- 
 cited, and he was arrested on the charge of murder. An ex- 
 amination of the buggy, the morning after its return to the 
 stable, had shown the dash-board broken, and that the bot- 
 tom of it had been washed out ; but a more careful scrutiny 
 of it was made, in the light of later events, and on looking 
 at the under side, it was found that a crack had allowed a 
 few drops of blood to soak through, which still remained — 
 most damning evidences of guilt. A seal ring was found in 
 the bottom of it by a hostler, the morning after the fatal 
 ride ; and this ring proved to be a most valuable clue. 
 
 The moment the arrest of Udderzook and the description 
 of his unknown victim were published, the insurance com- 
 panies surmised that the mystery of Goss' disappearance 
 might be near its solution at last, and several agents who had 
 known him personally hastened' to the scene. A glance at 
 the remains, altered as they were, was sufficient, and ac- 
 
244 MYSTERIOUS 
 
 quaintances and photographs brought from Baltimore, estab- 
 lished beyond question the identity of the murdered compan- 
 ion of Udderzook with the experimenter on the York Road, 
 The members of the family were too deeply committed to the 
 other side to dare to acknowledge the truth, but no impar- 
 tial witness hesitated for a moment. 
 
 To trace back the movements of the dead man, from his 
 murder in the wood to his flight from the fire, proved a much 
 easier task than had been the endeavorto trace them forward 
 from his sudden disappearance. On that eventful night he 
 actually went, as was conjectured, to Philadelphia where he 
 registered himself as A. C. Wilson, a name which he re- 
 tained throughout his wanderings. The next summer he 
 spent at a farmer's in Pennsylvania, but his increasing love 
 for liquor, fostered by his life of enforced idleness, made him 
 an undesirable inmate in a quiet country home, and he was 
 obliged to leave. He then went to the city of Newark, New 
 Jersey, where he remained in a secluded boarding-house, 
 while the detectives were vainly searching the country for 
 him, until after the trial in Baltimore/ There were three in- 
 cidents which contributed mainly to his identification and 
 which together were conclusive. Being, as already stated, 
 a large man of striking presence, he had a peculiar manner 
 of throwing his chest forward, which was very noticeable, 
 and which he was unable to change, even when disguise of 
 his identity became so necessary. Secondly appears a screw 
 driver made with a ratchet, so that it could be used without 
 removing the hand, a wooden model which Goss had invented 
 and made, and which same model Wilson possessed and was 
 equally fond of exhibiting and explaining. Thirdly, was the 
 seal ring already mentioned, which had belonged to Goss, 
 was constantly worn by Wilson, and was found in the bottom 
 of the buggy the morning after the murder of the stranger 
 by Udderzook, after the identification of the murdered man 
 with Goss, the motives for the murder were easily con- 
 jectured. The importance of avoiding detection and recog- 
 nition was so great that he did not dare to engage in anyem: 
 ployment which would necessarily bring him in contact with 
 other people, and his own taste for an idle life probably made 
 him perfectly willing to be supported by other people. But 
 this necessity for supporting him must have been a very 
 
DISAPPEARANCES. 245 
 
 heavy drain upon the conspirators in Baltimore, who were 
 none of them persons of means, and the risk which they ran, 
 of losing all their venture, was greatly increased by Goss' 
 growing habit of intemperance, for a dangerous secretwhich 
 depends upon the discretion of a drunken man is a powder 
 magazine which may explode at any moment. How indis- 
 creet he was is shown by a conversation which he held with 
 a fellow-boarder in Newark a few days before his departure 
 in which he proposed, as a promising speculation, that he 
 (Goss) should insure his life for $10,000, the otherpayingthe 
 premium ; that they should procure a small frame house, put 
 a corpse in it, burn up house and corpse together, prove the 
 loss, and divide the money which the company would pay, 
 "and even if the company should refuse to pay," added he, 
 <' a jury would be sure to make them, for I have tried it.'' 
 How many besides this poor victim of the avarice of himself 
 and others, have been led into crime by the fatal tendency of 
 juries to mulct corporations in favor of individual plaintiffs, 
 without regard to law or justice, will probably never be 
 known, but this one example shows how great a temptation 
 that tendency affords. 
 
 It is probable that Goss expected some immediate result 
 when the verdict was rendered in favor of the claim against 
 the companies, and was much disappointed when he discov- 
 ered that the law would interpose still further delays, before 
 he could clutch the coveted money. He had become very 
 tired of his quiet, secluded life, shut off from his wife, his 
 family, and all his friends and associations, and it is not un- 
 reasonable to suppose that he may have threatened to aban- 
 don the whole thing and return openly to Baltimore. For 
 after all he had committed no crime. He had absented him- 
 self for his own purposes, and if his relatives had taken 
 advantage of his absence to pretend that he was dead 
 and to contrive a swindle upon the insurance compa- 
 nies, that was their affair, not his, and he could easily make 
 it appear that he had returned to confound their villainy as 
 soon as he had learned of it. Their testimony in the trial 
 had concluded them, and he was now in a position to com- 
 mand and threaten, when before he could only beg. They 
 
246 MYSTERIOUS 
 
 appreciated the change of circumstances quite as well as he, 
 and determined to send him abroad, where he would be less 
 likely to be recognized, and where his indiscreet utterances 
 would not be so dangerous. "With this object in view, they 
 raised about fifteen hundred dollars, with which amount Ud- 
 derzook went to Newark toward the end of June. His influ- 
 ence over his weaker brother-in-law was unbounded ; so 
 marked, indeed, that even the careless observers in the little 
 inn at Jannerville observed aad commented on it, and he de- 
 liberately determined to use that influence to lead him to his 
 destruction. He looked over all the case calmly ; he saw, as 
 he told Rhodes, that the man was already dead to the world, 
 and would be missed by none but those whose own safety would 
 not allow them to call attention to his disappearance, and 
 with his actual death, all danger of discovery would be for- 
 ever removed, and the money which they had raised with so 
 much difficulty saved. Instead, therefore, of shipping Goss 
 to Europe, he took him with him to Jennerville, and it is in- 
 dicative of the calculating shrewdness of the man that he 
 went to his own old home, where, as he knew, his arrival 
 with a stranger, and the subsequent disappearance of the lat- 
 ter, would exeite no comment which would not be fully sat- 
 isfied by any explanation he might choose to give. Using there- 
 fore, for the basest purpose, the child-like confidence which 
 Goss reposed in him, he took him to the home of his own 
 childhood, and having surveyed the ground and perfected 
 his plans, invited him out for his final drive. 
 
 From all the circumstances it is probable that Udderzook 
 threw his arm carelessly around Goss as they were riding 
 slowly through Baer's Woods, and then suddenly tightening 
 the grasp, so as to hold his victim's arms, plunged a knife 
 into his throat. Goss thrust out his feet in the death agony 
 with such force as to break the dash-board, but another blow 
 followed instantly, and he had no time to resist before he lay 
 helpless in his murderer's arms. The latter must then have 
 dragged the body a short distance into the woods, washed cut 
 the buggy, driven it back to its owner, and then returned to 
 his horrible task of dismembering and interring the evidence 
 of his crime. A bright light was seen in the woods that night 
 
DISAPPEARANCES. 247 
 
 doubtless caused by the fire which Udderzook built to burn 
 the clothing of the murdered man, as some fragments of 
 charred cloth and burned buttons were afterwards found 
 there. On his visit to Rhodes the day before, when he had 
 endeavored to pursuade the latter to assist him in the project 
 which he had in mind, he was observed to notice a spade 
 standing neglected against a barn, which spade was missing 
 the morning after the murder ; he doubtless obtained it that 
 night, intending to use it to bury the body, but failed to ob- 
 serve that the handle was broken half through, so that it 
 must have flown in two at the first stroke he made with it. 
 This defeated his purpose of digging a deep hole for the 
 burial, but it was too late to make other arrangements then. 
 The night was already far gone, the early summer sun would 
 soon be up, and he must complete his terrible task before 
 daybreak in the best fashion he might. He was compelled 
 by the want of proper tools to hack the body in fragments 
 and bury them separately in such shallow receptacles as he 
 could scrape with the blade of the spade. The sun must 
 have been up before he had finished his work, and he must 
 have felt himself that it was unsatisfactorily done. But it 
 could not be done again, and he theretore retreated to his 
 mother's house, where he had some of his clothing washed, 
 and thence to Baltimore to await the result. 
 
 The whole affair was ably planned, and would have been 
 from his point of view, a complete success had it not been for his 
 mistake in stealing a broken spade instead of a whole one. We 
 doubt nowadays whether we should rightly call such a mis- 
 tak an accident or providential interposition, but in all hu- 
 man probability had Udderzook been able to bury his victim 
 so deep that the vultures could not reach him, the murder 
 would never have been known, and the companies compelled 
 to pay a fraudulent claim. But the shallow grave attracted 
 the carrion birds, and their presence over it brought Udder- 
 zook to the scaffold, and saved the insurance companies from 
 an infamous fraud. 
 
 I have mentioned only a few frauds which have been de- 
 tected. How many have escaped detection is known only to 
 Omniscience. But when we observe what comparatively 
 
248 MYSTERIOUS DISAPPEARANCES. 
 
 trivial accidents have led to discovery, it is only reasonable 
 to infer that there may have been many others in which no 
 such accident has occurred. We can only be certain that the 
 thing which has been will be again, and that only the most 
 watchful care and unceasing vigilance will enable the officers 
 of insurance companies to protect the interests of the honest 
 and deserving policy-holders from the rascality of designing 
 knaves. 
 
SCHOOL-ROOM POISONING 
 
 IN NEW YORK. 
 
 Proceedings of the Society, April 5, 1876. 
 
 Report of Committee to confer with the School Authorities, with a view to 
 such Legislation as may promote the Health of School Children. 
 
 The undersigned, a committee appointed to confer with 
 the school authorities, with a view to such legislation as may 
 promote the health of school children, report progress. They 
 have addressed to the President of the Board of Education a 
 letter, of which the following is a copy : 
 
 To William Wood, Esq., President of the Board of Education, 
 New York. 
 
 Dear Sir : — -The undersigned having been appointed a 
 committee under a resolution of the New York Medico-Legal 
 Society, " to confer with the school authorities, with a view 
 to such legislation as may promote the health of school chil- 
 dren," beg leave respectfully to call your attention to some 
 of the evils which seem to us to demand a remedy. 
 
 At the outset of our inquiries, our attention has been ar- 
 rested by a report of the Committee on By-Laws, etc., of the 
 Board of Education, under date of March 15, 1876, not yet 
 adopted, and recommending a continuance, or at best only 
 slight modifications of conditions which we are convinced 
 are utterly inconsistent with due care for the preservation of 
 the health of the children in the public schools. 
 
250 SCHOOL-ROOM POISONING. 
 
 We are gratified to observe in that report a full recognition 
 of the unsanitary condition of the public schools generally, 
 and the recognition of the power of the Board of Education 
 to correct the evil and this encourages us the more in sub- 
 mitting for your consideration the following suggestions. 
 
 We first notice the conclusion of your committee in regard 
 to the amount of air-space required, and the causes of over- 
 crowding. " In fixing the sitting capacity of rooms, the fol- 
 lowing shall be a minimum allowance of floor surface and 
 air-space per pupil. In the three lower grades of primary 
 schools and departments, five square feet and seventy cubic 
 feet ; in the three higher grades, six square feet and eighty 
 cubic feet ; in the four lower grades of grammar schools, 
 seven square feet and ninety cubic feet ; in the four higher 
 grades, nine square feet and one hundred cubic feet." (Rept. 
 pp. 229-230.) " The principals of schools, zealous in their 
 desire for a large number of pupils, and in their competition 
 in this respect with neighboring schools, often also urged 
 and harassed by the constant importunity of parents, have 
 in many instances crowded their class-rooms, by admitting 
 more pupils into them than their capacity would admit. 
 This, of course, has been done by an exercise of their own 
 authority, unlimited as it has been by any regulation, either 
 of the Board of Education or of the Ward Trustees." (Rept. 
 pp 227-228.) 
 
 Such a capacity of school-room space, though confessedly 
 greater than that which now is and hitherto has been allowed 
 thousands of children in the public schools of New York, is 
 not, so far as we have been able to learn, consistent with 
 physiological law, or with the opinions upon this subject of 
 those whose scientific judgment is entitled to deference and 
 respect. Without dwelling upon the universally acknowl- 
 edged importance of a pure atmosphere as the first condition 
 of health, we may be permitted briefly to rehearse certain 
 facts as the basis of our recommendation. 
 
 The atmosphere chiefly consists of a mixture of two gases, 
 oxygen and nitrogen, in the proportion of one volume of the 
 former to four of the latter. Oxygen is also called vital air, 
 because upon it depends vital existence ; it is the first ele- 
 
SCHOOL-ROOM POISONING. 25 I 
 
 ment of our bodily tissues, and, through respiration, affords 
 fully three-quarters of our bodily nourishment throughout 
 our lives, and is absolutely essential at every moment of our 
 existence, to the healthy development and maintenance of 
 our bodily organs ; the other fourth of our nourishment we 
 obtain in the shape of ailment, which also in part consists of 
 oxygen. The nitrogen of the atmosphere is neutral, deemed 
 to be merely diluent of the oxygen. There is besides, in the 
 free atmosphere, a third gas, carbonic-acid, or fixed-air, in the 
 proportion of four volumes per 10,000. It is the same as 
 that which minors call choke-damp, found in deep mines, shafts 
 and wells, and in brewers' vats, so often first discovered by 
 its fatal effects. But in the open air no one ever suffers on 
 account of it, or for the want of an abundant supply of oxy- 
 gen, the natural diffusion of these gases, when unrestrained, 
 being always sufficient to maintain their due proportion. 
 
 The amount of air inspired and expired by a healthy per- 
 son at every breath, is from twenty to thirty cubic inches 
 half a cubic inch of which is absorbed. And this half cubic 
 inch wholly consists of oxygen. As applied to the whole 
 volume of the air breathed (oxygen being one-fifth only), 
 every individual renders not less than five cubic feet of 
 air unfit for respiration every hour, by the abstraction of oxy- 
 gen alone ; but besides this, the half cubic inch of oxygen 
 taken up at every breath is replaced by a relative amount of 
 carbonic acid given out, so that the air respired once only con- 
 tains of carbonic acid one hundred times as much as it did when 
 it was inspired, or 5J per cent, of its volume. Nor is this 
 all. Besides the surcharge of carbonic acid, and the absorp- 
 tion of oxygen, the air of closely filled rooms is still further 
 contaminated by the exhalation of watery vapor, additional 
 carbonic acid exhaled from the skin, and dead organic mat- 
 ter exhaled from both the lungs and the skin in varying 
 quantities, but usually so abundant in the close, hot and dry 
 atmosphere of our city school-rooms, as to be offensively 
 apparent at all times, and a fruitful source of disease. 
 
 In regard to the deleterious effects of an excess of carbonic 
 acid alone in the air we breathe, there is no difference of 
 opinion among competent authorities. All agree that when 
 
252 SCHOOL- ROOM POISONING. 
 
 it reaches the prportion of 1 volume per i,ooo, it is 
 dangerous to health ; if not immediately, none the less cer- 
 tainly in its cumulative effects. It creates a general indispo- 
 sition of both body and mind, stunts bodily and mental de- 
 velopment, and particularly predisposes to scrofula and con- 
 sumption ; and its excess in crowded apartments is usually 
 an index of the presence of other deleterious agents due to 
 the same cause. 
 
 But besides these, there are still other gases frightfully 
 abundant in the school houses of New York, due to the eman- 
 ations from latrines and privies. For example : Primary 
 School No. 1. on Ludlow street, one of the newest and best 
 arranged and appointed, besides being overcrowded and un- 
 ventilated, is tainted throughout the halls, and at times by 
 way of the fan-lights over the doors in the class-rooms, with 
 the odors arising from the latrines in the basement, which 
 are emptied only "once or twice a week." The seating 
 capacity of this building is given as 1,700 ; actual register, 
 1,440; attendance, 1,329 ; square feet in 12 rooms, 3,264; 
 cubic feet in the several class-rooms varying from 2>2> t° 41 
 for each child ! and on the day of our visit, March 27th, 50 
 children were absent on account of illness, — hotels and 
 manufactories, established and conducted for private gain, 
 are supplied with the necessary volume and flow of water to 
 carry off promptly offensive and dangerous matters ; and that 
 the children in our public schools should be exposed to pois- 
 ons generated by means of these foul and disgusting latrines, 
 only to economize the water needed to keep well constructed 
 water-closests in order, is simply inhuman, and ought to be 
 at once amended. 
 
 The habit of wetting coal in bulk in the cellars, which is 
 sometimes practiced, causes it to emit poisonous gases dele- 
 terious to health, and should be forbidden. 
 
 In addition to other and necessary modes of ventilation, 
 the windows and doors of school-rooms should be left open 
 a sufficient time after school hours to insure an entire re- 
 newal of the air in the rooms ; otherwise, bad air is accumu- 
 lated and retained in the building for the next day. 
 
 Lofty ceilings are regarded by some as a principal means 
 
SCHOOL-ROOM POISONING. 253 
 
 of insuring a sufficient measure in cubic feet for each person. 
 Unless ventilation is secured for the upper portion of a 
 room, a lofty ceiling only makes that portion of space above 
 the tops of the windows a receptacle for foul air which accu- 
 mulates and remains, to vitiate the stratum below. 
 
 Children who have been ill with contagious diseases are 
 allowed to return to school too soon. Upon inquiry of 
 teachers, we learn that it is not uncommon for children to 
 return to school in two or three weeks after scarlet fever or 
 measles, and that there is no surveillance whatever in this re- 
 gard for the protection of the schools against contagious 
 diseases. 
 
 Remedial measures are scarcely less apparent than the ne- 
 cessity for them. No cubic space, large or small, can be made 
 to take the place of sound principles of construction, the 
 necessary admission of fresh air, the escape of foul air, and a 
 sufficiency of light falling at the proper angle upon both the 
 book and the eye, or the necessity and benefits of intelligent 
 sanitary supervision. 
 
 We would recommend that constant, thorough, scientific 
 survey and sanitary inspection and supervision be perma- 
 nently provided for. The nature of the questions, and the 
 vital and paramount interests involved, ought to insure this 
 measure without argument. 
 
 We have observed with pleasure that you have recom- 
 mended that the minimum age of admission to the schools 
 be raised to six years. We believe eight would be still bet- 
 ter ;but we regard confinement and labor in school, in con- 
 strained positions, and breathing bad air, at the tender age 
 of less than six years, as being destructive to both the phys- 
 ical and mental powers, and in every aspect of it, wholly in- 
 excusable. 
 
 For the same reasons that we would recommend six years 
 as the minimum age, we would make three hours the maxi- 
 mum daily attendance upon the primary department and 
 schools. 
 
 In fixing the "sitting capacity," it should be borne in mind 
 that the smaller the allowance the greater the necessity for 
 the constant admission and change of air. If an individual 
 
254 SCHOOL-ROOM POISONING. 
 
 be confined in a room containing 1,000 cubic feet, in twenty- 
 four hours such a room would contain one part of carbonic 
 acid to every ioo parts of air, besides the amount given off 
 by the skin, and would be deadly. 
 
 If the cubic space be small, the means for change of air 
 must be large in the inverse ratio. Thus, the space of ioo 
 cubic feet, in order to maintain the air at a healthy standard 
 it must be changed thirty times an hour, which is not practi- 
 cable without exposing the inmates of the room to dangerous 
 currents. 
 
 The minimum cubic space in which the standard of atmos- 
 pheric purity may be maintained without perceptible draught 
 has been found, by actual experiment with the most perfect 
 mechanical appliances hitherto devised, to be 424. This 
 amount of space will admit of renewal six times an hour 
 without appreciable draught. 
 
 Taking this as the lowest standard, and accepting the con- 
 curring opinions of all credible authorities, that with the best 
 practical tneans of ventilation the margin for contingencies 
 should be, at the least, equal in area to the demonstrated actual 
 necessities, and we have upwards of 800 cubic feet as the 
 lowest standard of allowance for twenty-four hours. 
 
 We would therefore recommend an adaptation of this 
 amount to school hours. Every individual actually poisons 
 fifteen cubic feet of air every hour. To prevent this, thirty 
 cubic feet, at the least, should be provided hourly, which pro- 
 portion, for five hours daily school session, requires 150 cubic 
 feet as the smallest space compatable with efficient ventila- 
 tion without dangerous exposure to draughts. 
 
 The difficulties attending a radical reform in the sanitary 
 management of the public schools is fully appreciated. The 
 vast numbers to be provided for, the urgency of parents, the 
 ambition of principals and teachers, the lack of sufficient, 
 room, the immense cost of new buildings, and the faulty 
 structure of existing ones, have all been borne in mind. 
 
 But if all that is desirable cannot be accomplished now, at 
 least a part may be ; and the extreme importance of the sub- 
 ject has impressed us with the duty of stating facts and cor- 
 rect principles plainly and fully. 
 
SCHOOL-ROOM POISONING. 255 
 
 Relying upon this, and upon your own well-known devo- 
 ion to the public schools, as being at once our apology and 
 our hope for your active co-operation, 
 We are very respectfully, 
 
 Your obedient servants, 
 Geo. H. Yeaman, R. J. O'Sullivan, M.D. 
 
 A. N. Bell, M.D., R. S. Guernsey, 
 
 D. S. Riddle. 
 
 New York, April 4, 1876. 
 
 The report was adopted as the sense of the Society, and 
 the committee continued. 
 
 PROCEEDINGS OE THE SOCIETY, JANUARY 3, 1877. 
 
 James Appleton Morgan, Esq., said he had listened to the 
 discussion of the subject under consideration with a good 
 deal of interest. At the time the discussion was first pre- 
 sented, a member of the Committee called upon him and asked 
 him to join in it. He doubted whether the scope of his ex- 
 perience would add anything to the general slock of accu- 
 mulated knou ledge on the subject ; but the gentleman sug- 
 gested that he (Mr. M.) make it his duty to confine his re- 
 marks to the Compulsory Education Act, and it did seem to 
 him but just, that if the children were compelled to go to 
 school, they ought, at least, to have decent places to go to. 
 Until recently he was under the impression, as probably 
 many others are, that if parents did not send their children 
 to school the police took them there. That is not the case. 
 The Superintendent of Truancy, Mr. Stanton, has kindly 
 given us a set of papers, which 1 have brought with me, 
 which will illustrate the method of procedure. I may say, 
 that when I went into Mr. Stanton's office, I expected to find 
 a pamphlet or so on the subject ; but I not only found a 
 pamphlet, but a whole literature, so that I was fairly stag- 
 gered with the amount ; but, as I before remarked, I pro- 
 vided myself with a set of blanks, as in use by the Board of 
 Education. 
 
256 SCHOOL-ROOM POISONING. 
 
 The first paper is something to this effect : 
 
 Office of the Superintendent of Truancy, Hall of Board of Education, 
 
 No 146 Grand Street, New York. 18 
 
 You are hereby notified that your child aged. 
 
 has not attended school for the period of fourteen weeks during the present 
 year, as required by statute (Chapter 421 of the Laws of 1874, as amended by 
 Chapter 372 of the-Laws of 1876), 
 
 Yours, etc., 
 Supt. of Truancy. 
 
 There is also a second blank, which is sent to the em- 
 ployer : 
 
 Office of the Superintendent of Truancy, Hall of Board of Education, 
 No. 146 Grand Street, New York, 18 
 
 You are hereby notified that you have in your employ, contrary to the Stat- 
 utes (Chapter 421, of the Laws of 1874, as amended by Chapter 372, of the 
 
 Laws of 1876) _ a child between the ages of 
 
 eight and fourteen years, who has not attended school for fourteen weeks dur- 
 ing the year next preceding that in which he has been in your employ, and fur- 
 ther, that you will, if you continue so to employ said 
 
 subject yourself to a penalty of $50 for such offence. 
 
 Yours, etc., 
 Supt. of Truancy. 
 
 Upon the receipt of these requisitions, the employer or 
 parent is supposed to comply with the law. If he does not, 
 the Superintendent of Truancy takes cognizance of the mat- 
 ter, and makes an affidavit about as follows : 
 
 The People of the State of New York, on complaint of vs. 
 
 City and County of New York, ss 
 
 residing at No.. Street, in the City of New York, being 
 
 duly sworn, says, That he is an Agent of Truancy, duly appointed under the 
 provision of an Act entitled, "An Act to secure to Children the benefits of an 
 Elementary Education," passed May nth, 1874. 
 
 That is a child between the ages of 8 and 14 years, 
 
 viz : of the age of years ; that said is a 
 
 child whose attendance at school deponent has been and is unable to procure 
 by pel suasion, argument or any means other than force, and who said deponent 
 has found wandering about the streets and public places of said city during the 
 school hours of the school day of the term of the Public Schools of said city, 
 
 located in the district in which said iesides. That 
 
 said has no lawful occupation, and, as deponent verily 
 
 believes, is grow ng up in ignorance, and said _ is a 
 
SCHOOL-ROOM POISONING. 257 
 
 proper subject for arrest, and incarceration under the provisions of said Act 
 aforesaid . 
 
 Wherefore said deponent prays that said be appre- 
 hended and dealt with as the law may direct. 
 
 Sworn to before me this day ) 
 
 of- 187.. > 
 
 And if the child is not sent then, a fourth paper, which is an 
 ordinary commitment, is made out, when the child is taken 
 not to the school, but to Randall's Island. 
 
 Commitment. Police Court, District. 
 
 State of New York, City and County of New York, ss. By .-- 
 
 ...Esq., Police Justice for preserving the Peace in the City and 
 
 County of New York : to the Policemen of said City or any one of them, and 
 
 to the These are in the name of the People of ihe 
 
 State of New York, to command you, the said Policemen, or any one of you, to 
 
 take and convey to the said the body of 
 
 who being charged before me on the oath of an 
 
 Agent of Truancy in said city, with being found wandering about 
 
 the streets and public places of said city, in violation of the Act of the Legisla- 
 ture of the State of New York, entitled, " An Act to secure to Children the 
 benefits of an Elementary Education." passed May nth, 1874. 
 
 I caused the said to be brought before me for ex- 
 amination on said charge, and I proceeded to inquire into the matter in his 
 presence, and having read the proofs and allegations submitted to me, and duly 
 considered the said matter • was convicted on compe- 
 tent testimony aforesaid, of being And I having 
 
 -been satisfied by sufficient proof that the said is a child 
 
 between the ages of eight and fourteen years, and is of the age of 
 
 years was adjudged by me to be a proper object to be committed to 
 
 the __ Now, therefore,, you the said 
 
 are hereby commanded to receive the said who is hereby 
 
 committed by me to your care on said there to be restrained 
 
 and detained and sent to school for such time and in such manner as may be 
 -designated by the Board of Education of the said City of New York, or until 
 shall be discharged according to law. 
 
 Given under my hand and seal at the District Police Court, 
 
 in said City of New York, the dayof._ in the year of 
 
 our Lord, One Thousand Eight Hundred and Seventy 
 
 Pol ice Justice. 
 
 The pamphlets which he had been able to procure are full 
 of interesting matter, but so voluminous that he did not feel 
 justified in attempting even a summary of their contents. 
 
258 SCHOOL-ROOM POISONING. 
 
 A difference of opinion exists among members of the Board 
 of Education as to the value and efficacy of the measure, 
 which has now been some time in operation. The chief ob- 
 jection put forward is that it is unwise and leads to no good 
 results to treat as criminals young boys and girls addicted to 
 truancy, and that to throw them into prison, even for the 
 shortest space of time, casts a stain and reproach upon them 
 out of all proportion to the trivial offence laid to their charge. 
 Other means of correction and reform, it is urged, can be 
 employed without inflicting a degradation, and subjecting 
 him or her to the pernicious influence of contact with wicked 
 and depraved characters that may lead to the utter ruin of 
 the child. To place a child in a common prison for mere 
 absence from school is claimed to be outrageous. To obviate 
 this difficulty it has been suggested that a building be pro- 
 vided specially for the confinement of truants, but even this 
 plan is not favorably considered ; and it now remains a ques- 
 tion, whether or not the enforcement of the law maybe made 
 the means of any important service to our system of educa- 
 tion or extensive benefit to the community. 
 
 The truant agents, under the direction of the superintend- 
 ent of Truancy, have been active in the work of investigating 
 the causes of the absence of all pupils between the ages of 
 eight and fourteen, who have been reported by the princi- 
 pals as truants, or whose absence was protracted or not ac- 
 counted for. In this manner many children absent from 
 school without the knowledge ot their parents have been re- 
 turned to the schools, and by this means not only has the at- 
 tendance of pupils been somewhat increased, but the amount 
 of truancy diminished, since other children have been de- 
 terred from playing truant by the greater certainty of detec- 
 tion, as well as in some cases by the fear of being sent to the 
 House of Refuge, of which are confined youths transferred 
 from State prisons as incorrigible. The City Superintendent 
 is of opinion that no other effect than this has been produced 
 by the enforcement of the law, except, perhaps, an indirect 
 influence upon the minds of parents and guardians to send 
 their children to the schools with greater frequency and reg- 
 ularity ; but adds that it is but fair to attribute a part of the 
 
SCHOOL-ROOM POISONING. '259 
 
 increase of attendance and diminution of absenteeism to the 
 operation, direct or indirect, of the law. 
 
 The subject will continue to occupy the attention of the 
 Board of Education, and it is expected that the Legislature 
 now in session will be asked to modify, if not repeal, the 
 provisions of the act that authorize the arrest and commit- 
 ment of truant children to institutions that largely partake 
 of a penal character. 
 
 The idea of compulsory education is not at all new. .The 
 speaker has been very much interested to find that, in the 
 year, 1642, the first law for compulsory education in this 
 country originated in the then commonwealth of Massachu- 
 setts. 
 
 It is as follows : 
 
 Extract from the Laws of the Colony of Massachusetts Bay, 1642. 
 
 " Forasmuch as the good education of children is of singular behoof and ben- 
 efit to any commonwealth, and whereas many parents and masters are too in- 
 dulgent and negligent of their duty in this kind, it is therefore ordered by this 
 court and the authority thereof: 
 
 " That the selectmen of every town, in the several precincts and quarters 
 where they dwell, shall have a vigilent eye over their brethren and neighbors, to 
 see — First, that none of them shall suffer so much barbarism in any of their 
 families as not to endeavor to teach, by themselves or others, their children and 
 apprentices so much learning as may enable them perfectly to read the English 
 tongue and knowledge of the capital laws, upon a penalty of twenty shillings 
 for each neglect therein ; and further, that all masters do breed and bring up 
 their children and apprentices in some honest, lawful calling, labor or employ- 
 ment, either in husbandry or some other trade profitable for themselves and the 
 commonwealth. If they will not nor cannot train them up in learning to fit 
 them for higher employments, and if any of the selectmen, after admcnition by 
 them given to such masters of families, shall find them still negligent of their 
 duty in the particulars aforementioned, whereby children and servants become 
 rude, stubborn and unruly, the said selectmen, with the help of two magistrates, 
 shall lake such children or apprentices from them, and place them with some 
 masters for years — the boys till they come to twenty-one and girls eighteen — 
 years of age complete, which will more strictly look into and force them to sub- 
 mit unto government, according to the rules of this order, if by fair means and 
 by former instructions they will not be drawn into it." 
 
 Mr. Wm. A. Owen, Principal of the Eighty-Seventh Street 
 School, New York City, on being called upon by the Chair- 
 man, expressed his gratification with the interest the Society 
 had taken in the subject, and said : 
 
260 SCHOOL-ROOM POISONING. 
 
 I know something of the working of the school system un- 
 der the Board of Education, having been engaged in the 
 Public Schools of this city for the past twenty years. 
 
 i. We need such a law ; but We need something else be- 
 fore we can put that law into active operation — i. e., more 
 school accommodation. There are no schools except those 
 in the upper part of the 12th Ward, the 23d and 24th Wards, 
 that are not now overcrowded. Yet this law says that every 
 child between eight and fourteen must attend school at least 
 fourteen weeks ea'ch year. 
 
 The primaries never have been large enough. The ques- 
 tion comes up, How can we get room in this city, where land 
 is so high ? 
 
 Our school building should go from street to street. A 
 large building will accommodate a large number of pupils. 
 This will secure a well graded school, and therefore a suc- 
 cessful school. 
 
 2 I have the pleasure of being acquainted with one of your 
 members, Dr. O'Sullivan, who for two years occupied that 
 position in our schools, and I know its value. We have now 
 204 departments and primary schools. In the last year we 
 had 202 school days. This would not admit of a visit from a 
 single medical inspector for all the schools of more than one 
 visit a ysar, which would not do much good. Dr. O'Sullivan 
 made more frequent visits. We should have, therefore, a 
 medical inspector for each district, and he would find work 
 enough to do. 
 
 With all due deference to what has been said here, Iwould 
 not have a child go to school until he or she is eight years 
 old ; but we should have for the poorer classes another build- 
 ing not called a school, but a nursery — a place to develop 
 the physique, where the children could take their playthings 
 and be cared for, the mother knowing that while she is out 
 earning bread her child is safe and happy. To these build- 
 ings I would admit children between four and eight years 
 of age. 
 
 I think I am right in saying that a large portion of our 
 leading mei chants and business men were formerly boys 
 from the country. Why is it that they so often outstrip our 
 
SCHOOL-ROOM POISONING. 261 
 
 city boys ? Is it not that they are not afraid to work, and are 
 unable to bring to their work strong and well-developed 
 bodies ? What we want to do for our city children is to de- 
 velope their physical powers. 
 
 I would not have a child touch a book to study after three 
 o'clock, except in the two highest classes. Our boys and 
 girls do not have enough time to play. By the rules of the 
 Board of Education we must not give the children lessons to 
 learn out of school — that will take over two hours study. 
 This means the average child. I claim that five hours' 
 teaching is enough for a teacher each day. A child should 
 not be required to do more until he has reached the istor 2d 
 grade. Up to that time, don't ask him to give more than 
 one-quarter of the twenty-four hours to school. 
 
 This can only be done by obtaining additional school-room 
 accommodation. 
 
 The 1st, 2d, 3d, 4th grades in Grammar Schools are allowed 
 nine square feet per pupil — the 5th, 6th, 7th, 8th grades are 
 allowed seven square feet of floor space per pupil 
 
 We often find large boys in the lower grades. 
 
 Large class-rooms, with plenty of sun-light and ventila- 
 tion, will remove most of the trouble. Your Committee 
 speak of the assembling rooms in our schools as valuable 
 space not utilized, because only used a few hours each 
 week. 
 
 A large assembling room is one of the great needs of our 
 public school, and the few hours per week it is used tell 
 favorably on the drill and discipline of the school. 
 
 A school that has not an assembling room sufficiently large 
 to assemble the whole school is very seriously crippled in its 
 discipline and efficiency. 
 
 Dr. Garish said : It is obligatory upon us that" we should 
 demand the enactment of a law to tile effect that every child 
 should be supplied with a given space in these schools to 
 breathe in, and not allow any boy to enter the school with- 
 out this given space is allowed him. We would then be in 
 position to place our children in a better physical condition 
 than at .present. It would indeed be well if a law was enacted 
 making it obligatory to educate the-men whose duty it is to 
 
26 Z SCHOOL-ROOM POISONING. 
 
 make the laws. Schools should be placed in more healthy- 
 localities, where the fresh air can reach them, where no deadly 
 effluvise rise from the ground. He had always advocated the 
 appointment of Medical Superintendents in all the schools. It 
 should be so arranged that an inspector should visit every 
 school every day, to look after the physical condition of these 
 children ; and if possible children should be followed outside 
 of their schools into their homes, and parents should be ad- 
 vised respecting sanitary laws. They should be placed in 
 apartments where they can breathe pure air. If I could have 
 my wish, he continued, I would have attached to every school 
 a gymnasium. Let us give our children good physiques. 
 We cannot expect to have a sound mind unless it he en- 
 grafted on a sound body ; we are doing too much brain work 
 in America, and I am happy to see that we are getting more 
 into the idea of giving ourselves a little more rest and recre- 
 ation. We are beginning to appreciate it, and to imitate in 
 this regard our German citizens. I delight to look forward 
 to the time when there will be more holidays among us. 
 They are a sanitary necessity and should be encouraged. 
 
 Judge Fithian, on being called upon by the Chairman, re- 
 marked that it seemed to be apparent to every gentleman 
 and to every citizen, that you have on hand here a question 
 of the very greatest moment — the welfare of our city, and, 
 indeed, the welfare of all the cities of this country. You, 
 gentlemen, are grappling with a branch of that great social 
 problem which has forced itself every yeatr more and more 
 upon the attention of a cultured and thoughtful people ; and 
 that is, how and in what manner shall you be able to man- 
 age the great populace aggregated in your great city, in such 
 a way that this population shall not deteriorate, and the city 
 not become a nest of vice and crime and moral turpitude ; 
 but how control, shape and manage it so as to retain the 
 maximum amount of culture and education and keep down 
 the lowest minimum amount of vice, ignorance and crime that 
 yearly occur in our great city ; and how it is to be managed — 
 whether you are to give it up to the men and women with 
 sound minds in sound bodies, with good moral and .mental 
 culture, or the opposite — these are propositions that certainly 
 
SCHOOL- ROOM POISONING. 263 
 
 are tasking the consideration of the able and intelligent, and 
 benevolent men and women of the age, and finally I can add 
 no more than to say that I bid you God speed, and shall be 
 happy to do anything that I can in my humble way to assist 
 you in a cause so loyal. 
 
 Dr. Robert R. McIlvaine said he wished to ascertain from 
 Dr. Agnew what are his data for the condition of the eyes of 
 the children of schools ? Where does he begin, and what 
 length of time have they been deteriorating ? I wish to know 
 what is the proportion between the whole number of blind 
 to the whole population at home ; and how does that ratio 
 compare with the same population of unfortunates on conti- 
 nental Europe and in the islands around it ? 
 
 Dr. Agnew. I do not know. 
 
 Dr. McIlvaine. Now, the Common School is the first pro- 
 duct of the Reformation first inaugurated by Luther, in 
 Saxony, with the assistence of Melancthon, in 1525, and it 
 went into operation, I believe, in 1527. If this use of the eye 
 causes deterioration, then the Saxon people would be by this 
 time in a helpless condition, because during the last 350 
 years they have been using means to promote blindness. 
 
 Is it a fact that the use of organs is destructive to them ? 
 Is it not rather strengthening to them ? Is it not a physio- 
 logical fact, that the use of all our organs is a means of for- 
 tifying them against harm, and of preparing them for useful- 
 ness ? Has it been demonstrated that myopia — or near- 
 sightedness, as it is called — is a progressive infirmity ? Mr 
 President, I want to know your experience. 
 
 The Chair here answered that the abuse of the eye causes 
 the disease referred to. 
 
 Dr. McIlvaine. Excuse me, Mr. President, that is a new 
 departure ; we are not speaking of that. To begin with the 
 last data in my possession : in England and Wales, in the 
 year 1851, there was one blind person to every 979 ; in Ireland 
 one to every 878 ; in Scotland, one to every 960, making a 
 common ratio of one in every 950. In Belgium the propor- 
 tion of blind to the other population is one in every 1,316 ; 
 in France, one in 1,357 ! in the lower parts of Germany, one 
 
264 SCHOOL-ROOM POISONING. 
 
 in 950 ; Prussia, one in evary 1,401 ; Saxony, on in 1,666 ; 
 Switzerland, one in 1,570 ; in Sweden, one in 1,091. 
 
 Let 11s now return home. The population in 1850 of blind, 
 of deaf, of dumb, of insane, of idiotic, in the United States, 
 numbered 50,994 — being one blind person in every 2,368 ; in 
 i860, one in 2,519 — and this is what our experts designate 
 progressive blindness, Mr. President. I am happy to say that 
 these facts have been so. I may add, in the language of the 
 psalmist: " God hath not dealt so with any other nation." 
 We have fewer persons suffering from this infirmity than any 
 other people of whom we have published records. We can- 
 not presume on this matter, nor be deluded by the mere dec- 
 laration of experts. This is too serious and important a sub- 
 ject. If the schools are preparing a population of the unfor- 
 tunate blind people, why, it is one of the greatest calamities 
 that can possibly befall the race, and would imply a deterior- 
 ation of the race in common. But I am happy to say we have 
 data to the contrary. It will be remembered that in the State 
 of New York, in i860, among the white people, one in every 
 2,327 was 90 years of age, and one in every 41,647 was 100. 
 \ T ou remember I am speaking of the Caucasian race. The 
 data, as to the eyes and longevity, is applied wholly and par- 
 ticularly to the white people. We must not allow ourselves 
 to be led inlo error by declarations unsupported by demon- 
 stration While giving these gentlemen credit for their in- 
 dustry, we want to have data by which, as a touch-stone, to 
 refer these circumstances to. This, I regret to say, has not 
 been the case ; we have here an accumulation of data, with- 
 out any landmarks whereby to ascertain whether we are dete- 
 riorating or whether we are improving. 
 
 In relation to the report of the Co-mmittee, there was a 
 reference made to the unsanitary results produced by the 
 contact of water with coal in the cellar in bulk. Now, gen- 
 tlemen, we know what water is composed of: oxygen 8, hy- 
 drogen 1 — making 9, while the coal that is generally used, I 
 believe, is composed of carbon 75.28 (what is called coke 
 coal), hydrogen 4.18, nitrogen 15.96 and oxygen 4.58. Now, 
 cannel coal is composed, according to analysis, of carbon 
 64.72, hydrogen 21.56, nitrogen 13.72. So that you see there 
 
SCHOOL-ROOM POISONING. 265 
 
 are none of those elements that are in themselves or as far 
 as we can see brought in contact, which are capable of pro- 
 ducing what are called poisonous effluviae or poisonous pro- 
 ducts. 
 
 In 1872, on my way to Paris, I was, while in London, asked 
 by a gentleman to listen to a lecturer on sanitary science. 
 Being presented to the lecturer, after the close of his dis- 
 course, I observed to him that one thing he had either for- 
 gotten or overlooked. I referred to the location of a house ; 
 that a house placed east and west had the sun only one-half 
 of the day, whereas a house placed north and south had the 
 sun in the forenoon and in the afternoon — the east_side in 
 the forenoon and the west side in the afternoon. 
 
 There is something in understanding how to place a house 
 in order to have it placed in a sanitary condition, and there 
 are but few who appear to appreciate it. 
 
 In speaking to a gentleman who called himself a sanitarian, 
 the other day, concerning this matter, be said it was a mere 
 whim — it was immaterial how a house was placed. Now the 
 parties who had charge of the building of the Women's Hos- 
 pital, as it is called, and the parties who had charge of the 
 Presbyterian Hospital, did not know how to use the ground. 
 I speak of this because I have seen the house externally. The 
 St. Luke's Hospital might have been arranged so that the 
 sun would have penetrated every department, as they had the 
 whole lot under their control. It therefore would appear 
 that there are to be taken into account several considerations 
 in building a house. 
 
 1. In the location of the house, in regard to the sun, which 
 is never to be dispensed with, if we possibly can control the 
 ground on which we build. 2. A building should be so con- 
 structed that every department of it shall be the recipient of 
 this great luminary, which is itself life-giving and life-pre- 
 serving. 
 
 He made no answer. He stated that it was difficult some- 
 times in the city. I told him that was true ; but where you 
 pan control land the sunlight should never be dispensed 
 with. 
 
 Dr. Morreau Morris, having been invited to address the 
 
266 SCHOOL-ROOM POISONING. 
 
 Society, said that he had been unfortunate enough not to be 
 present when the Report of the Committee was read. He 
 had had some .experience in the study of the sanitary condi- 
 tion of the schools when he was a sanitary inspector. 
 
 It is now about nine years since he was :i sanitary inspec- 
 tor in the Metropolitan Board of Health. His duties led 
 him to visit the school houses, and in so doing he made some 
 investigations in reference to their sanitary condition and 
 their effects on school children. It seemed to him that the 
 crowding was such as to be very detrimental to the health of 
 the children. There was also a great want of ventilation. 
 The ventilating appliances were so deficient, that they were 
 obliged to open the doors and windows, and the air blew 
 upon the heads of the children in the room — this condition 
 he noticed at once, and so reported the facts to the Board of 
 Health. He was immediately informed that it would not be 
 well to make any more inspections of school-houses. He 
 was treading upon the toes of another Commission. If there 
 was anything to be done, it was better that the Commission 
 should be notified that it ought to be done. 
 
 As to the enactment of some law covering the difficulty re; 
 f erred to, he would say that we have plenty of law — too 
 much, in fact. The trouble is, that there is no enforcement of 
 the law. The Metropolitan Board of Health gives ample 
 power to the Health Department to supervise all the schools 
 or any other building in the city of New York within its 
 jurisdiction ; to supervise and recommend and order or com- 
 pel the execution of whatever it thinks necessary to be done. 
 It seemed to him that this was a point which should never be lost 
 sight of, even by this Society, in whatever course it may take. There 
 ■is law enough, and law directly to the point; and the only 
 difficulty is in the gentlemen who are at the head of that De- 
 partment, in not having the law executed. He was aware 
 that there is a timidity about executing a law, especially 
 when it comes in contact with another Department of the 
 same city government, yet it seemed to him that sanitary 
 questions are those questions which relate to life and health, 
 and should be executed by the power to whom it has been 
 delegated— no matter with whatever Department it. may 
 
SCHOOL-ROOM POISONING. 267 
 
 clash ! Now overcrowding of the schools is one of the great 
 evils which exist in the public school-houses of the city. 
 Children are sent there not only because the law compels 
 them to be sent, but also from a natural desire on the part of 
 the parents to have them educated. But there is also another 
 reason for the overcrowding, which you perhaps recognize 
 at once, and that is the desire, nay, almost the necessity 
 among the poorer classes of the laboring population, to have 
 their children taken care of while they go out to earn their 
 bread and butter; therefore they will send them to the school 
 which is nearesi. He agreed with the Principal of the 
 Eighty-seventh Street School, that there should be other 
 means provided for this class. The suggestion of a nur- 
 sery was a good one. He had not only seen schools 
 where there was not only wet coal in the cellar, but where 
 urinals were allowed to overflow, and the children allowed to 
 play in the basement. This state of things would not be al- 
 lowed in your own dwellings. The practice is one of the 
 most detrimental things done in the schools. If the children 
 should be allowed to run over the rocks with the goats, they 
 would do better than if they were allowed to play in the 
 cellar. 
 
 Prof. Hamilton asked whether he understood Dr. Morris 
 to say that the Board of Health had power to authorize in- 
 spection of school-houses, and whether they had power to 
 enforce any suggestions in that regard which may be made 
 by proper persons ? 
 
 Dr. Morris said they had. 
 
 Prof. Hamilton asked whether such reports were ever 
 sent to the Board of Education from the Board of Health? 
 
 Dr. Morris replied that such reports had been sent. 
 
 Prof. Hamilton asked, further, what became of such re- 
 ports ? 
 
 Dr. Morris believed that they were pigeon-holed. 
 
 Prof. Hamilton : Ah ! Were these inspections made within 
 the last two years ? 
 
268 SCHOOL-ROOM POISONING. 
 
 Dr. Morris said he could not answer as to two years ; he 
 thought they had been within four years. 
 
 Prof. Hamilton inferred that they had ceased to make in- 
 spections because their suggestions were not followed. 
 
 Dr. Morris said that was one of the points he wished to 
 make. 
 
WM. G. DAVIES. 
 
William G. Davies, Esq. 
 
 Was born on the 21st day of March, 1842, in the City of 
 New York, and is a son of the late Judge Henry E. Davies. 
 He graduated at Trinity College, Hartford, Conn., in i860, 
 and went abroad to pursue his studies, entering the Univer- 
 sity at Leipsig, Germany, where he remained one year. 
 
 On his return to New York he entered the office of Slos- 
 son, Hutchins & Piatt, and was, at the same time, a diligent 
 student at the Columbia College Law School, his determina- 
 tion being to acquire a thorough legal education, as a solid 
 basis on which to build his hopes of future eminence. He 
 was admitted to the Bar in 1863, and formed a partnership 
 with Henry H. Anderson, Esq., which was dissolved when 
 he entered the service of the Mutual Life, August 1, 1866. 
 In May, 1870, the Law Department of this great company 
 was organized, with the late Hon. John V. L. Pruyn as 
 solicitor, and Mr. Davies as assistant. This position he held 
 until the* 20th of May, 1885, when he was elected head of the 
 department, succeeding the late Hon. Oliver H. Palmer. 
 
 Mr. William G. Davies is a ripe scholar and an elegant 
 writer. He contributed a paper entitled, "On Mysterious 
 Disappearances and Presumptions of Death in Insurance 
 Qases," which was read before the Medico-Legal Society of 
 New York in 1876, is published in the 3d volume of Medico- 
 Legal papers, and was widely read and copied after its de- 
 livery. Mr. Davies takes great interest in forensic medicine. 
 Since he united with the Society, he has taken great interest 
 in its success, and has held the position of Trustee forseveral 
 years, and is now Chairman of the Board of Trustees of the 
 Society, and also of the Executive Committee. 
 
 Mr. Davies is a rising member of the New York Bar, and 
 an influential member of the Medico-Legal Society. 
 
 c. B. 
 
CERTAIN 
 
 RAILWAY INJURIES OF THE SPINE, 
 
 IN THEIR 
 
 MEDICO-LE(GAL relations. 
 
 By WILLIAM A. HAMMOND. M. D., 
 
 Professor of Diseases of the Mind and Nervous System in the University of 
 
 New York, etc. 
 
 Is there a class of injuries of the spine produced by rail- 
 way accidents, the symptoms of which are entirely subjec- 
 tive ? In other words, are there any spinal affections caused 
 by collisions and other mischances which are evident only to 
 the alleged sufferer, and which cannot be detected by the 
 most careful examination on the part of the physician or 
 surgeon ? If there were not at times extraordinary motives 
 for simulating such diseases, the question would not proba- 
 bly have to be asked. I3ut with soldiers and sailors, prison- 
 ers, members of beneficial societies, school children and rail- 
 way passengers, a motive for deception often exists, and 
 hence in the interest of justice \o the plaintiff and defendant 
 in suits for damages the subject is one of great importance, 
 to 9ay nothing of its scientific relations. 
 
 For instance, a patient comes to his physician and says he 
 has a pain in his back. He walks in a bent position, he 
 
 Read before the New York Medico-Le^al Society, May 3d, 1876, Prof. F. H. 
 Hamilton, President, In the Chair. 
 
^7° RAILWAY INJURIES OF THE SPINE. 
 
 shrinks when pressure is made on the alleged seat of pain in 
 the spine, his face wears an expression of weariness or suffer- 
 ing, his urin dribbles from him or is retained till drawn off 
 by the catheter. Some of these symptoms are subjective, 
 others are objective ; but there is not a single one of these 
 latter which cannot be assumed, and of all the phenomena 
 exhibited by the patient, every one may be a counterfeit. 
 
 Now if the individual apparently suffering from this com- 
 bination of symptoms has no obvious motive for deception, 
 we take all his statements with full faith in their correctness, 
 and do not stop to ascertain whether or not he is endeavor- 
 ing to impose upon us by shamming lameness, or inconti- 
 nence or retention of urine. In fact, if there be no incentive 
 to fraud there is every reason why he should not attempt to 
 impose on a medical practitioner. But if he has recently 
 been a passenger on. a railway train when an accident oc- 
 curred by which he received a concussion or shock, and we 
 are aware that he has instituted, or is contemplating institut- 
 ing a suit for damages in a large sum of money against the 
 company, we should be derelict in our duty if we did not 
 test by every means in our power the truth of his statements 
 and the reality of the obscure phenomena ; and if we did, the 
 probability of arriving at absolute correctness would be very 
 slight, unless we had repeated opportunities of observation, 
 for a painful expresssion of countenance may be assumed, a 
 b'ent position of the body and" lameness are easily counter- 
 feited, and even incontinence and retention of urine may be 
 voluntary. 
 
 Or the case may be much milder and still sufficiently severe 
 to cause great inconvenience and suffering. A few years ago 
 I' was consulted at the instanee of my friend, Dr. J. Marion 
 Sims, by a young lady who had for several months suffered 
 acutely with a pain in the lower part of the spine, which was 
 apparently directly the result of a fall on the ice, by which 
 the end of the vertebral column was brought into violent and 
 sudden contact with the. hard, frozen surface of the ground.. 
 
 For a moment she was stunned, and was unable to walk or 
 even to stand, but in a short time, not exceeding half an, 
 
 hour, she Walked a few steps to a carriage, and on reaching 
 
RAILWAY INJURIES OF THE SPINE. 27 I 
 
 home at once went to bed. The following day she could 
 walk, though with some little difficulty, but there was'a con- 
 stant pain experienced in the lower dorsal region which was 
 aggravated on movement of the body. This pain, when I 
 saw her several months afterwards, had not left her for a 
 moment during the time she was awake. It was of a dull 
 aching character, and was always increased by fatigue. In- 
 deed, very slight muscular exertion, such as walking a few 
 hundred yards, or playing a game of croquet, was sufficient 
 to render it exceedingly distressing. Beyond this there was 
 nothing. There was no paralysis, no anaesthesia or hyper- 
 sethesia of the limbs, menstruation was regular, digestion was 
 not interfered with, sleep was natural, and she looked the 
 very picture of health. Here there was no apparent reason 
 for questioning the patient's veracity; her statements were 
 accepted by her physicians, and she was placed under such 
 treatment as appeared to be indicated. But suppose for the 
 moment that she had complained of the pain immediately 
 after having been subjected to the shock of a railway acci- 
 dent, how different would have been the views of those med- 
 ical gentlemen who might, in her and the company's intfgr- 
 ests, have subjected her to examination. One set of physi- 
 cians, believing her assertions of the existence of a continual 
 pain in the spine, would have testified to spinal injury, while 
 the other, discrediting her allegations, would have seen only 
 an attempt to defraud a corporation. 
 
 Again there are cases in which there is undeninble injury, 
 the effects of which are at first very clearly manifested by 
 subjective and objective symptoms, but in which subse- 
 quently there may be reason for believing in the fact of com- 
 plete recovery, but in which, nevertheless, the patient con- 
 tinues to complain of pain and to show motorial derange- 
 ment. It. is certainly true that where there is no motive for 
 deception, very severe symptoms are speedily recovered 
 from. 
 
 Thus Ashurst* cites the case of a. male child two years of 
 age. who was admitted into the Pennsylvania .Hospital, No- 
 
 * Injuries of the Spine, etc., Philadelphia, 1867, p. 8. 
 
272 RAILWAY INJURIES OF THE SPINE. 
 
 vember 13th, 1861, having a short time previously received a 
 severe blow upon the back. There were no external marks 
 of injury, but the lower limbs were paralyzed, doubling up 
 upon themselves when an effort was made to place the child 
 in an erect position. He was discharged, cured, after two 
 months, his treatment having consisted in little else than rest 
 in a recumbent posture. 
 
 A case has recently come under my observation, in which 
 the patient, a stout man of thirty years of age, fell backward 
 from the side of a staircase which was without a railing, and 
 struck his back against a box some ten feet below. There 
 was complete paralysis both of motion and of sensibility in 
 the lower extremities ; the bladder was paralyzed, as was also 
 its sphincter, and there was severe pain at the lower dorsal 
 and upper lumbar region of the vertebral column. These 
 symptoms were present from the very first, and continued 
 with their initial severity for several weeks; amendment then 
 began, and after the lapse pf about four months, the patient 
 was apparently as well as he ever had been. 
 
 My own case is to the same effect. In going down a stair- 
 case at Nashville, in the winter of 1864, I knocked my head 
 against a beam and fell, striding my back against the edge of 
 the stairs several times as I went tq the bpttom of the flight. 
 I was unable to rise, in fact, was completely paralyzed, both 
 as regarded motion and sensibility, and was carried up stairs 
 on a stretcher'and laid on a bed. For a £pw hours there was 
 paralysis of the bladder, but power was regained before 
 night. The lower extremities, reniained incapable of any 
 motion for seven days ; on tjie eighth day muscular power 
 began to reappear in the flexors pf the tops, and steadily ad- 
 vanced, but it was over four montlis before I was able to wall? 
 without crutches, and several more before recovery was com- 
 plete. During the first month the electric contractility of 
 the paralyzed muscles was markedly diminished. 
 
 Again there are cases of spinal injury in which the symp- 
 toms do not ensue immediately, but they are developed^ at 
 some subsequent period. Several suph are cited by Erich- 
 sen,* in his recently published work, and quite a number 
 
 * On Concussion of the Spine, Nervous Shock and other Obscure Injuries of 
 the Nervous System, London, 1875. 
 
RAILWAY INJURIES OF THE SPINE. 
 
 2 73 
 
 have come under my own observation. Some very interest- 
 ing instances of the kind are detailed by Leudet,* in all of 
 which recovery took place. This last is not, however, as we 
 will hereafter show, by any means an invariable result of 
 Leudet's cases ; the following are especially interesting : 
 
 M., a man in good health, jumped from the quay to the 
 deck of a ship, a height of about twelve feet, and at once ex- 
 perienced a sharp pain in the sacro-lumbar region. He, 
 however, continued to work. The morning after the acci- 
 dent he still felt the pain in the back, and besides, experi- 
 enced a gradually increasing degree of weakness in both 
 legs. He was nevertheless able to walk, though with diffi- 
 culty ; but throughout the whole time had no numbness or 
 pain in the limbs. The power of motion however, soon be- 
 gan to reappear, and on the eighth day he was discharged 
 from the hospital, entirely restored. 
 
 R., 34 years of age, while engaged in unloading a vessel, 
 fell to the ground from a wagon, a distance of about a metre, 
 striking on the hands and feet. He arose without assistance, 
 and felt no inconvenience except a tingling in the right knee. 
 He walked some 20 feet and lay down on rather damp ground, 
 where he remained for less than half an hour. He then, 
 feeling no pain, rose to the sitting posture, then stood erect; 
 but on attempting to walk, found that he could not, on ac- 
 count of the weakness of both legs ; supported by two men 
 he managed to reach his home. During the night his legs 
 became so weak that he was unable to turn in bed, and on 
 awaking in the morning he found the arms also measurably 
 deprived of power. There were neither urinary or rectal 
 troubles. The paralysis continued to increase for several 
 days, then at the end of two weeks there was marked ame- 
 lioration ; but it was not until nearly three months had 
 elapsed that he was discharged from the hospital, cured. It 
 is an important feature of this case that there was no direct 
 violence inflicted on the spine, the patient, as we have seen, 
 falling on his hands and feet. 
 
 * Recherches Cliniques esu la Congestion de la moelle a la suite de chutes ou 
 d'efforts. Cliniques Medicals, Paris, 1874, p. 384. 
 
274 RAILWAY INJURIES OF THE SPINE. 
 
 Mr. LeGros Clark,* calls attention to the fact that a blow 
 on the back sufficient to produce concussion of the cord is 
 not always immediately followed by spinal symptoms. Thus 
 a man who subsequently came under his observation was 
 knocked down by a severe blow with the fist in the upper 
 dorsal region. There was considerable shock produced and 
 in some thirty-six hours afterwards he began to complain of 
 pain extending downwards from the point where he was 
 struck, and partial paralysis of both arms gradually super- 
 vened, attended by diminished sensibility. The lower ex- 
 tremities retained their natural state — a very unusual cir- 
 cumstance, and one in regard to which I think there must 
 be some mistake. 
 
 In another case a young sailor was thrown violently down 
 by catching hold of the revolving wheel of a carriage which 
 violently struck him. When brought to the hospital he made 
 light of his injury, and complained only of a little tenderness 
 on percussion over the upper dorsal region. His breathing 
 was peculiar — a long inspiration followed by a rapid expira- 
 tion. He soon afterwards vomited, and during the night had 
 a succession of epileptiform fits, attended by violent tetanii- 
 furm spasms and unconsciousness. In a few days he was 
 quite well, and was discharged from the hospital 
 
 Of my own cases the following are interesting, as showing 
 both how severe an injury may be recovered from, and how 
 slight a one may produce great disturbance without there 
 being at first any very marked symptoms. 
 
 I. S., a young man twenty-two years of age, while walking 
 a narrow plank about ten feet above the ground, lost his bal- 
 ance and fell in such a manner that the whole posterior sur- 
 face of the body struck the earth. He was stunned, but 
 more from concussion of the brain than from any immediate 
 injury to the spine. After a few minutes he recovered con- 
 sciousness and walked to a street car, a distance of five blocks, 
 and rode to his home in the upper part of the city. He had 
 no pain except a general soreness, mostly located in the 
 small of the back and occiput, and felt so little discomfort 
 
 * Lectures on the Principles of Surgical Diagnosi M , etc., London. 1870, p. 149. 
 
RAILWAY INJURIES OF THE SPINE. 275 
 
 that he went the same night to the theatre, remaining 
 throughout a long performance. The next morning, beyond 
 the soreness, theie was nothing. There was no- special pain 
 in the back, and no impairment either of motion or sensibility 
 in any part of the body. But on the third day, on getting 
 out of bed, he experienced a little difficulty in standing and 
 walking, and soon afterwards numbness, characterized by a 
 feeling as if the limbs were asleep, supervened in both lower 
 extremhies. He visited me the same day. His gait was then 
 staggering, the esthesisometer indicated diminished sensibil- 
 ity in all parts of the skin below the dorsal region, and the 
 electric contractility of the muscles supplied by the crural 
 and sciatic nerves of both sides was notably lessened. To- 
 ward night the bladder became paralyzed, and it was neces- 
 sary to draw off the urine w T ith a catheter. All the symptoms 
 increased in severity, and in addition there was atrophy of 
 the affected muscles, so that at the end of the month he was 
 unable to stand, much less walk, and could barely flex and 
 exlend the right leg. At no time was there any marked pain 
 in the back or limbs. 
 
 He remained in this condition for a month or six weeks 
 longer, and then, having in the meantime been assiduously 
 treated with electricity and ergot, amendment began. This 
 steadily advanced, and six months after the fall he was able 
 to walk with a cane. He is now — somewhat over a year since 
 the injury — apparently as well as ever, except that his limbs 
 are not quite of normal size, and that he is more readily tired 
 than formerly. 
 
 Another case was that of a gentleman, who, on attempting 
 to raise a window that had stuck fast, felt something appar- 
 ently give way in his back. He thought nothing of the oc- 
 currence till several days afterwards he experienced pain in 
 the lumbar region, and some numbness in the right lower ex- 
 tremity. These symptoms continued without much variation 
 for several weeks, and then one morning when he attempted 
 to rise from bed, he found that he could barely support the 
 weight of the body on the left leg. This weakness passed off 
 during the day, to be renewed the next morning with greater 
 intensity. A few days afterwards he came under my obser- 
 
276 RAILWAY INJURIES OF THE SPINE. 
 
 vation. He was then suffering with great and constant pain 
 in the lumbar and sacral regions of the spine, pain alternating 
 with numbness in the right leg, semi-paralysis of the left lower* 
 extremity, especially of the muscles on the anterior face of 
 the leg, which extend the foot and toes, and incontinence of 
 urine. 
 
 Thus far, ten months after the accident, there has been no 
 deeided improvement. The left leg is decidedly smaller than 
 the other, walking is impossible without the use of a cane, 
 and the sphincter of the bladder is still paralyzed, except 
 when the patient is kept under the influence of belladonna. 
 The only amelioration is in the anaesthesia of the right leg, 
 which is almost gone, and this fact affords ground for hoping 
 that the motor paralysis may eventually disappear. 
 
 I have purposely avoided citing any cases in regard to 
 which there could be any doubt, such as might attach to 
 those resulting from railway accidents. In the next place, 
 however, 'we have to apply the facts recorded to the special 
 subject of this paper ; and here we shall find, owing to the 
 circumstances previously mentioned, that the course is not 
 by any means a clear one. 
 
 I do not know exactly to what extent railway companies in 
 this country are yearly mulcted in damages for real or al- 
 leged injuries inflicted by the actual or assumed negligence 
 of their servants ; but in .the year 1865 the following sums 
 were paid by British companies as compensation for personal 
 injuries done to passengers on their lines. Caledonian, 
 ^12,849 ; Great Eastern, ^21,996 ; Great Northern, ^22,387; 
 Great Western, ^40,067 ; Lincolnshire and Yorkshire, ^24,- 
 708 ; London and Northwestern, ^30,728 ; London and 
 South Western, ^25,000 ; London, Brighton and South 
 Coast, ^4,504 ; Manchester, Sheffield and Lincolnshire, 
 .£6,483 ; North British, £4,621 ; South Eastern, £70,726 ! 
 Midland, £25,958, and North Eastern, £14,355 ; a total of 
 £304,816, or about $1,525,000, and all this in one year.* 
 I am inclined to think that the yearly total in this country is 
 not much if anything less than this sum. 
 
 * Dr. Edwin Morris. A Practical Treatise on Shock, etc., American Edition, 
 Philadelphia, 1868. p. 50. 
 
RAILWAY INJURIES OF THE SPINE. 277 
 
 In Great Britain the subject of railway injuries has been 
 very much more the subject of discussion in and out of the 
 profession. The little book of Mr. Erichsen — which many 
 have supposed to be written in the interest of the claimants, 
 but which is, I think, fairly and honestly conceived — has 
 been the subject of very severe criticism. No one has com- 
 mented with more severity on the fraudulent character of 
 many of the claims for damages than Prof. Syme, of Edin- 
 burgh, and as showing his own opinion and as expressing my 
 own to some extent, I quote the following remarks from 
 an article which he published in the Lancet iji January, 
 1867 : 
 
 " Since the passing of Lord Campbell's act," he says — " a 
 most unjust piece of legislation as it has always seemed to 
 me — which established the principle of regulating the amount 
 of damages for personal injuries in accordance with the value 
 of individuals to society and to their families, claims of this 
 kind have become very frequent under circumstances which 
 seriously call for consideration. For instance, at this time 
 last year a trial took place at Guild Hall, in the Court of 
 Common Pleas, on the part of a commercial traveler, who 
 prosecuted the Great Northern Railway Company for com- 
 pensation on account of an injury alleged to have beer sus- 
 tained from an accident on their line. In this case Sir Wil- 
 liam Fergusson, Mr. Erichsen, and Dr. Russel Reynolds de- 
 clared that there was organic disease in the spine which in 
 all probability would soon prove fatal; while on the other 
 hand, Mr. Borlese Childs, Mr. Poerok, of St. Gorge Hospi- 
 tal, Mr. Cook; of Guy's Hospital, Dr. Risden Bennett, of St. 
 Thomas' Hospital, Dr. Dunsmore, President of the Edin- 
 burgh College of Surgeons, and myself, no less confidently 
 expressed the conviction that there was no organic disease 
 whatever, and no reason why the claimant should not enjoy 
 good health. The jury, instead of the ^12,000 asked, gave 
 ^4,700 damages, and before the end of many months the 
 plaintiff, who had been rapidly recovering, admitted that he 
 was quite well, and still continues to be so. The truth is 
 that when injuries find the medical evidence to be so con- 
 flicting, not being able to judge for themselves as to the 
 
278 RAILWAY INJURIES OF THE SPINE. 
 
 merits of the case, they almost always decide in favor of the 
 claimant, so that there is thus great encouragement afforded 
 to unfounded or exaggerated demands for redress. Indeed, 
 any man who travels by railway may easily obtain a compe- 
 tence by standing on the platform after the door of his car- 
 riage has been opened by a servant of the company, but be- 
 fore the train has ceased to move. He has then merely to go 
 to bed, call in a couple of sympathizing doctors, diligently 
 peruse Mr. Erichsen's lately published work on railway in- 
 juries, go into court on crutches, and give a doleful account 
 of the distress experienced by his wife and children through 
 his personal sufferings which have resulted from the culpa- 
 ble negligence which allowed him to leave his seat prema- 
 turely. Who can doubt that in such circumstances the jury 
 would give large damages. This system ought certainly to 
 be put down, and of one means of doing so I beg to suggest 
 the publication of cases exhibiting an entire discrepancy be- 
 tween the medical evidence, in order that regard for personal 
 character may tend to check the reckless advocacy of one- 
 sided views. The results of such cases in regard to the claim- 
 ant's speedy recovery of heallh would also be worthy of at- 
 tention for the same purpose; and having given one of these, 
 I may add a case of medical diversity of opinion that has just 
 occurred here. On April 27th last, a commercial traveler 
 drove out in the evening to my residence in the neighbor- 
 hood of Edinburgl), . and informed me that he had been 
 shaken the night before in a railway collision near Berwick- 
 on Tweed. He had walked immediately afterwards a mile 
 and a half to see Dr. Maclagan, of Berwick, and having been 
 assured by him that there was no local injury or occasion for 
 confinement, had come on to Edinburgh. Finding that there 
 was no local complaint, I desired him to call next morning 
 at my house in Rutland Street, and tell me if he felt any- 
 thing wrong. He accordingly did so, and then exhibiting 
 the most perfect freedom in all his movements without any 
 sign of local injury, I concluded that if he felt any uneasi- 
 ness, it must be mote mental than bodily. Having expressed 
 my opinion to this effect, I was rather surprised by being 
 asked to recommend a law agent, and it is hardly necessary 
 
RAILWAY INJURIES OF THE SPINE. 279 
 
 to say declined to do so. On the same day, April 28th, it 
 appears that this person, having procured an accomplished 
 agent, applied to a surgeon of experience in cases like his 
 own, who discovered that he had sustained a severe wrench 
 of the spine and sacro-iliac synchondrosis ; the surgeon put 
 him to bed, called in a trustworthy coadjutor, and visited his 
 patient at least once a day for months. On June 12th Dr. 
 Dunsmore requested me to see the claimant, as he had now 
 become. We found him lying upon a sofa, from which he 
 rose and walked with vigor and flexibility of body. There 
 was not the slightest swelling, discoloration or rigidity of 
 the spine, and on the contrary, every appearance of good 
 health, so far as we could judge from our own observation. 
 On July 2 1st, the trial being about to take, place, the claim- 
 ant desired to be examined by a commissioner ; and his or- 
 dinary attendant having given a ceitificate on "soul and 
 conscience " that he was unable to appear in the witness-box 
 without serious injury to his health, I was requested, al"ng 
 with Dr. Dunsmore, to report as to this for the information 
 of the court. We found the claimant lying or rather lolling 
 on two chairs in a garden, to and from which he walked in 
 leaving or returning to his room, which was up a t-tair on the 
 drawing-room floor. He told us that he sat at his meals, and 
 on the whole he had no appearance of bad health. We re- 
 ported our opinion that he could safely appear in court, and 
 the trial was ordered to proceed. But the claimant's legal 
 advisers applied for delay. On December 14th, Dr. Duns- 
 more and I were again requested to see the claimant, as the 
 trial would take place on the 24th. We found that he was 
 not at home ; but after a little while we saw him walking 
 stoutly along the street from a public bathing establishment, 
 which it appeared he had frequented for several months. He 
 walked up the stairs of his residence before me, and neither 
 then nor afterwards, when more particularly examined, 
 showed any sign of spinal or other disease. At the trial, after 
 the plaintiff had been examined — seated in a chair, not being 
 able to go into the witness box ! — his counsel agreed to ac- 
 cept £1,000, instead of ^3,000, which had been demanded. 
 I deemed it unnecessary to offer any observation on this case, 
 
280 RAILWAY INJURIES OF THE SPINE. 
 
 but would suggest the following questions : 1. Could any- 
 one who had sustained a severe wrench of the spine and 
 cacro-iliac synchondrosis immediately afterwards walk a mile 
 and a half, or on the following days, travel sixty miles by 
 railway, drive about in cabs and make visits, without local 
 complaint? 2. Could serious disease of the spine, resulting 
 from external violence, exist for eight months without pre- 
 senting some sign of its presence in the patient's gait, flexi- 
 bility of trunk, or general appearance ?" 
 
 Now, while I think Prof. Syme's questions will be an- 
 swered in the negative by the great majority of competent 
 physicians and surgeons, it must be admitted, in view of 
 what has been adduced in the foregoing pages relative to the 
 effects of injuries of the spine, when there is no motive for 
 deception, that there are cases of real disease following 
 blows, strains and shocks, in which there are no marks of 
 local injury, and in which the patient could, on the two fol- 
 lowing days, go about in cabs ' and railway trains, and it is 
 this very fact which renders it so difficult to discriminate the 
 true from the false in certain of the cases that come before 
 us as instances of damage from railway accidents. 
 
 As regards many of these there can be no doubt. The symp- 
 toms are so very decided and pronounced — so evident both 
 to the lay and professional observer — that there can be no 
 difference of opinion as to their real character. With these 
 we are not at present concerned. We have only under notice 
 that doubtful class of cases in which there is apparently 
 great bodily functional derangement, without sufficiently 
 evident bodily leison, in which the only symptoms are those 
 the knowledge of which we do not obtain by observation, 
 but by the statements of the patient ; of such are the fol- 
 lowing : 
 
 During the summer of 1875 I was requested by the Hud- 
 son River Railroad Company to examine a Canadian woman 
 who had been injured in a collision on their road, and in 
 conjunction with a medical gentleman to be selected by her, 
 to determine finally what damages, if any, should be paid to 
 her by the company. She had been previously examined by 
 the surgeon of the road, Dr. J. W. Ranney, of this city,. and 
 
RAILWAY INJURIES OF THE SPINE. 281 
 
 it was beyond doubt that she had been injured, and had suf- 
 fered severely, besides losing a great deal of time from her 
 business, that of a milliner, I think. She selected Dr. Frank 
 H. Hamilton, as her examiner and arbitrator, and together 
 we submitted her to careful and thorough examination. I 
 may here state that she had already instituted a suit for com- 
 pensation in $5,000, and that her attorney intended to amend 
 her complaint, and claim $ 10,000 for the injuries alleged to 
 have been received. 
 
 Now at the time the claimant came under my observation, 
 there were no objective symptoms whatever. She walked 
 quite as well as most women, and there were no urinary 
 troubles ; she complained only of pain in the upper dorsal 
 region, and she winced when pressure was made on the skin 
 over the vertebrae of that part, just as ninety out of every 
 hundred American women do, or rather did several years 
 ago, when they were accustomed to take less physical exer- 
 cise than they do at present. 
 
 I think Dr. Hamilton accepted her statements as true — if I 
 am wrong, he will correct me — andwas inclined tothink they 
 indicated serious trouble of the cord. I did not accept her 
 account in its entirety, and admitting its truth, I did not con- 
 sider the affection indicated as a very important disorder. 
 We, as a compromise, awarded her $4,000. That she was 
 entitled to something was undoubted, and I thought that sum 
 a sufficient and fair award for the suffering and loss she had 
 undergone. Had the case gone to the jury with Dr^ Hamil- 
 ton's evidence in her favor, she would probably have ob- 
 tained a much larger sum. 
 
 Now of course our distinguished President and the whole 
 Society will understand that I am not criticising Dr. Hamil- 
 ton's opinion or action in this case. He had just as much 
 evidence in support of his views as I had to sustain mine ; 
 such differences of judgment will occur so long as men are 
 not all cast in the same mold. It is too much the custom to as- 
 sociate them to an extreme degree with the members of the 
 medical profession, and the proverb of "When doctors differ 
 who shall decide ?" is continually quoted whenever two or 
 more physicians are at variance. But it must be recollected that 
 
282 RAILWAY INJURIES OF THE SPINE. 
 
 the saying was originally applied, not to doctors of medicine, 
 but to those of theology, and that lawyers, aye, even courts — 
 which of all bodies should be without difference — are con- 
 stantly at variance in their opinions. Even in the very ma- 
 terial matter of the strength of materials, the test of chemical 
 substance, or even the coarse and apparently most easily de- 
 termined matter of the cost and difficulty of taking down the 
 topmasts of the ships that are to pass under the East River 
 Bridge, we find the estimates vary from a few cents to five 
 hundrd dollars, and from half an hour's time to a day. I do 
 not, of course, know the line of reasoning pursued by our 
 distinguished President in getting at his idea of the damage, 
 past, present and prospective, sustained by the claimant I 
 have referred to. My own opinion referred mainly to her 
 past condition, and at the same time I gave her a fair benefit 
 of the doubt I had in my mind in regard to her state when I 
 examined her. As to the future, I was well satisfied that she 
 could readily be cured, as the very great majority of such 
 patients are, by proper medical treatment. 
 
 Several years ago I was requested to examine a physician 
 who had, as it was said, been injured by a railway collision. 
 I saw him on the part of the company. The evidence was 
 very clear that an actual injury had taken place. At the 
 moment of collision he was standing in the passage-way be- 
 tween the seats, expecting the shock, and when it came he 
 was thrown violently to the floor. He was unable to walk, 
 was carried to a neighboring hotel, and was soon afterwards 
 seized with severe palpitation of the heart and vomiting. 
 He never completely regained his motive power — at least he 
 walked with that staggering and titubating gait which is so 
 difficult to assume. He became emaciated, and his general 
 health was much disturbed. The evidence all went to show 
 that he had consistently exhibited these symptoms, even at 
 times when he was not conscious of being observed. But I 
 was nevertheless satisfied that there was every prospect of an 
 ultimate recovery, perhaps after several years, and that cer- 
 tainly there was no such progress of his disease as would lead 
 to complete paralysis. I accordingly so testified, though sev- 
 eral other eminent physicians gave evidence to the effect 
 
RAILWAY INJURIES OF THE SPINE. 283 
 
 that death would probably ere long result. The jury found 
 a verdict in his favor for, I think, $8,000, instead of $15,000 
 claimed — a righteous verdict, I conceive, for the patient, 
 though much improved after five years, is, as I learn, not yet 
 entirely restored to health. 
 
 In this case there were objective symptoms — the collapse 
 in the first place, and the emaciation and the consistent lame- 
 ness which subsequently ensued — so that I felt warranted in 
 testifying that the claimant was undoubtedly injured, though 
 probably not severely as he and others thought. The result 
 has abundantly satisfied me of the correctness of this view. 
 
 Quite recently I was applied to by a young man, who in- 
 formed me that about a month previously, in getting off a 
 street railway car, he had been violently thrown to the 
 ground, so that he had wrenched his back, had become par- 
 tially paralyzed in both legs, and was unable to pass his water 
 without using a catheter. Besides wanting my professional ad- 
 vice, hedesiredan examination, with the special view of having 
 me testify before a court in a suit for $20,000 damages, 
 which he intended to institute against the railway company. 
 The fact of the fall was undisputed. I caused him to take 
 off his clothes, and I found at once that there was no emacia- 
 tion. On the contrary, his body was remarkably well nour- 
 ished. He complained of pain in the cervical region of the 
 cord, and screamed in apparent agony when I touched the 
 spinous processes of all the vertebrae from the third to the 
 seventh. It appeared to me then that there was a very un- 
 usual degree of hyperaesthesia. The grasp of both hands 
 was not strong, but on testing him with the dynamometer, 
 the object of which he knew was the estimation of his man- 
 ual strength exactly, he pressed the instrument with even 
 greater feebleness. I was therefore satisfied that he was 
 making the most of his condition, if not actually deceiving 
 me. I then asked him to walk across the room several times 
 till I told him to stop. He began, and tottered over the 
 floor as if about to fall at every step. As he continued walk- 
 ing, however, he forgot himself, as I expected he would, so 
 that after half a dozen turns his gait was measurably im- 
 proved. I need scarcely remind the medical portion of my 
 
284 RAILWAY INJURIES OF THE SPINE. 
 
 audience that if there had been any serious affection of the 
 cord his walking would have become worse instead of 
 better. 
 
 In the next place I examined him with the esthesiometer, 
 the use of which he did not know, but which I was well sat- 
 isfied would establish the fact of his contemplated fraud. He 
 had previously informed me that his arms and legs were con- 
 stantly numb or "asleep" as lie expressed it. If this were 
 really the fact, the esthesiometer would indicate diminished 
 sensibility, if not, the result would be normal. I therefore 
 went very carefully over the skin of both arms and both legs 
 with the instrument, taking a record of the observations, and 
 found, as I was quite sure would be the case, that there was 
 not the slightest derangement of sensibility in any part of 
 the body. The skin over the spine which was so painful to 
 my touch was not in the least degree hyperaesthetic to the 
 esthesiometer. 
 
 This was about sufficient, but there was one other point in 
 regard to which I desired exact information, and that was 
 the alleged paralysis of the bladder. He came to me at about 
 one o'clock P. M., and in answer to my inquiry said that he 
 had passed no urine since he rose from bed at seven o'clock, 
 and that he had then used the catheter. Now, it is well 
 known that in paralysis of the bladder the urine becomes 
 alkaline by being retained a long time in contact with the 
 vesical mucous membrane, and that it is sometimes secreted 
 with an alkaline reaction. It was absolutely certain, there- 
 fore, that if he had been affected with paralysis of the blad- 
 der for over a month, as he informrd me, and had passed no 
 urine since seven o'clock in the morning — six hours and 
 more — the secretion would be strongly alkaline. I accord- 
 ingly introduced a catheter and drew off about half a pint of 
 urine entirely free from ammoniacal odor, and on testing it 
 with litmus paper, found it to be of normal acid reaction. 
 
 I then accused him of deception, and recapitulated to him 
 the points which by his insufficient knowledge of the subject 
 had led to his detection. After numerous protestations, he 
 confessed that he had been drilled by an attorney — not a 
 member of this society, or of any other reputable organiza- 
 
RAILWAY INJURIES OF THE SPINE. 285 
 
 tion — to simulate spinal injury, with the view of defrauding 
 the company. Should he ever appear in court as a claimant, 
 he will probably go out of it on a charge of perjury. 
 
 In conclusion, while I think it must be admitted that inju- 
 ries of the spine may lead to disease the symptoms of which 
 are all subjective, it is I am sure equally true that close ob- 
 servation, a thorough study of the history of the case and 
 minute examination will often lead to the detection of fraud, 
 if there is fraud. 
 
 It must be borne in mind that the simulator of disease gen- 
 erally overacts his part, and that he scarcely ever knows 
 enough of the very intricate subjects of spinal physiology and 
 pathology to play a consistent role. In cases of simulated 
 disease we will usually find, likewise, that the subjective 
 symptoms are more intense than the objective, a condition 
 which when both classes of phenomena are present does not 
 exist. It is also very much easier to counterfeit complete 
 than partial paralysis. The fraudulent claimant, not know- 
 ing this, attempts the latter in his irregular movements — for 
 the motions of partially paralyzed limbs present certain defi- 
 nite characteristics which the experienced physician will- at 
 once recognize — lead to his detection. 
 
 I am aware that there is much more that could be said on 
 the subject ; but if I have not completely elucidated it, I 
 may perhaps have inserted the entering wedge to its discus- 
 sion and amplification. 
 
MEDICO-LEGAL SCIENCE. 
 
 A SKETCH OF ITS PROGRESS, ESPECIALLY 
 
 IN THE 
 
 UNITED STATES. 
 
 By JAMES J. O'DEA, M. D. 
 Clifton, Staten Island, N.Y. * 
 
 I. The scope of Medico-Legal Science has widened with 
 the progress and specialization of knowledge. It was limited 
 in its infancy to the reference of doubtful or disputed points 
 in legal processes to the opinion of some established medical 
 authority, whose utterances, deemed oracular, were accepted 
 as conclusive. After this fashion law took counsel with 
 medicine in the time of Hippocrates, and for centuries there- 
 after. Doubtless in the then primitive state of scientific 
 knowledge the answers got from traditional medicine were, 
 on the whole, satisfactory to the dispensers of justice.f But 
 with the increasing complexity of social relations and insti- 
 tutions, judicial questions arose that were no longer soluble 
 
 *Read before the Society Sept. 6, 1876. 
 
 t There are numerous references to medico-legal subjects in the Justinian 
 Code (A. D. 533), as shown by the following titles : De Statu Hominum ; De 
 Inspiciendo Ventre, Custodiendoque partu ; De Muliere, qui peperit undecimo 
 mense ; De Ivipotcntia; De Hermaphroditis ; but, as was customary to an even 
 later date) ail such questions were referred to the authority of Hippociates, 
 rather than to the judgment of any living expert. 
 
MEDICO-LEGAL SCIENCE. 287 
 
 in this simple way — questions of poisoning, of homicidal and 
 suicidal death, of wounds incidentally or necessarily fatal, of 
 potency or impotency affecting the continuity of the mar- 
 riage tie and the legitimacy of offspring ; questions of preg- 
 nancy as involving succession to estates, and of insanity in 
 relation to civil rights and criminal responsibility. Courts 
 of law, perplexed by the intricacies of the medical aspects of 
 these and cognate questions, demanded reasoned opinions 
 based upon personal knowledge and experience, instead of 
 the parrot-like repetition of traditional laws, once deemed 
 satisfactory. 
 
 Fortunately for the rights of individuals and communities 
 alike, the progress of medicine kept pace with the ever- 
 widening sphere of law. It was, on the whole, a real pro- 
 gress, made upon the solid ground of observation and re- 
 search. There could have been no scientific basis of medi- 
 cine without, in the first place, a knowledge of the anatomy 
 and physiology of the human body. Previous to the time of 
 Mondino, (who flourished in the beginning of the fourteenth 
 century), anatomy had been studied in the bodies of the 
 brute creation only. In the age of the Ptolemies, it is true, 
 Herophilus and Erasistratus, two physicians of Alexandria, 
 had dissected some human subjects. But, ovvingto the preju- 
 dice against profaning the dead body, their example was not 
 followed, and for five hundred years the only authority on 
 the subject, was Galen, whose descriptions were based upon 
 his limited knowledge of the organic structure of the lower 
 animals. Even Mondino — who broke the long monotony of 
 the post-Galenean- anatomy — did not escape the influence of 
 this prejudice. For him a knowledge of the structure of the 
 brain was forbidden fruit — forbidden by religious scruples 
 which made him fear to open the head, lest by uncovering 
 the seat of the soul he should commit a mortal sin. It was 
 not until more than two centuries after Mondino's time — 
 when the intrepid Vesalius laid bare the secrets of the human 
 frame, and published his dissections to the world — that the 
 authority of Galen was dethroned for all time. 
 
 The progress of physiological knowledge was equally slow 
 and labored. Remarkably crude notions prevailed in ancient 
 
288 MEDICO-LEGAL SCIENCE. 
 
 times respecting the organic functions. In the opinion of 
 Hippocrates (B. C. 460) the office of the brain was to attract 
 the vapors (so imagined) from the interior of the body, and 
 that of the muscles to cover the skeleton. Aristotle, an ac- 
 complished naturalist and son of a physician, seated the in- 
 tellect in the heart. Indeed, time would fail me were I to re- 
 hearse the list of the fanciful theories prevalent in this de- 
 partment of knowledge until the days of William Harvey. 
 Harvey's great discovery of the circulation of the blood (A. 
 D. 1628), put these idle speculations to flight, and inaug- 
 urated the dawn of a long and prosperous day for medicine. 
 Thenceforth the science of physiology took a new departure. 
 Following Harvey came Malphigi (A. D. 1661), examining 
 the blood corpuscles with his microscope, demonstrating 
 with the same instrument the vesicular structure of the lungs, 
 and establishing by observation and reasoning the true mode 
 of respiration. And, finally, to these succeeded Haller (A. 
 Da 1747) who laid broad and deep the foundations of modern 
 physiology. 
 
 A like progress might be traced in chemistry (a science 
 equally essential to medical jurisprudence), from the fanciful 
 dreams of the alchemists — to the discoveries of Lavoisier, 
 Dalton, and the later chemists, — but why weary you with 
 more details ? Why, indeed, at all, save for this one reason 
 that, enjoying as we do — we lawyers and physicians of this 
 Society, and we members all of this commonwealth — the full 
 benefits of a ripe medical knowledge, we are prone to forget 
 how much its progress is owing to the labors of its own apos- 
 tles ; how little to the aid of either law or society. There is 
 room for an instructive comparison between the development 
 of jurisprudence and of medicine in this particular, but this 
 is not the place to make it. 
 
 Dating from the great discoveries I have mentioned, a new 
 era began for medicine, and a fresh field was opened to her 
 usefulness. No longer the handmaid of superstition; nor the 
 mouthpiece of blind tradition — groping in the sick room, 
 fumbling among philters and unguents— she had courage to 
 go abroad, to breathe the common atmosphere, to take part 
 in the discussion of those issues that occupy the thoughts of 
 
MEDICO-LEGAL SCIENCE. 289 
 
 serious men. Soon, too, with knowledge came influence and 
 power; medical science was made indispensable not only to 
 individual comfort and safety, but to the maintenance and 
 of public and private rights. It appeared above all as a val- 
 uable helpmeet to law ; and out of this important relation 
 sprang that body of legal medicine — of medicine in its legal 
 bearings — which, beginning with the anatomical discoveries 
 of the fouiteenth century, has reached its latest development 
 in the institution of medico-legal societies, first in this city of 
 New York, and subsequently in the two widely separated 
 cities of Paris and Cleveland. 
 
 IF. The first authoritative recognition of the legal value of 
 medicine came from a German principality, where reigned 
 George, Bishop of Bramberg. In 1507 his worthy minister, 
 the Baron Schwartzenberg, drew up a penal code in which 
 the need of medical evidence in some doubtful cases was ac- 
 knowledged and declared. Notwithstanding, the mass of the 
 German States repudiated so unprecedented an innovation 
 in the established order of things, and for some time its suc- 
 cess was very uncertain. But in 1532 the Diet of Ratisbon 
 was persuaded by the Emperor Charles V. to adopt a uniform 
 code for all Germany, didactic rather than imperative in 
 character, the main purpose of which was to instruct un- 
 learned judges how to proceed in criminal cases. This code — 
 the famous Constitutio Criminalis Carolina — was founded on its 
 predecessor of Brarhberg, and contained the obnoxious 
 clause requiring magistrates to seek counsel from physicians 
 in all cases of violent "death, procured abortion, and such 
 other acts as 1 should'become the subjects of legal investiga- 
 tion. Thenceforth Germany took the lead in medical juris- 
 prudence, a position which, it is only just to say, she has kept 
 with few exceptions ever since. 
 
 The fruit of this public recognition of the legal value of 
 medical knowledge soon appeared in the shape of a succes- 
 sion of works relating to Medical jurisprudence. One of the 
 first of these was Ambrose Parens treatise on tardy births. It 
 was soon followed by the De Relationibus Medicorum of For- 
 tunatus Fidelis, a good compilation of the extant medical 
 knowledge of the day applied to juridicial inquiries, albeit 
 
290 
 
 MEDICO-LEGAL SCIENCE. 
 
 marred by subserviency to canonical law. This work ap- 
 peared at Palermo in 1602.* In the two centuries intervene 
 ing between its issue and the rise of our Republic, the Euro- 
 pean medical mind produced numerous treatises of various 
 scope and more or less enduring fame. I shall do little else 
 than mention the titles of some of the more important of 
 these treatises. First in order of time came the elaborate 
 production in successive volumes of Paolo ZacchiaJ at Rome, 
 between 1621 and 1650, entitled Questiones Medico-Legales. 
 Chemistry and physiology were still in their infancy, though 
 anatomy had made considerable progress ; it is to the ad- 
 vance of this latter branch most probably that the acknowl- 
 edged excellence of Zacchia's treatise is due. It was the 
 first of its kind to present legal medicine with any degree of 
 scientific precision. 
 
 In 1628, while Zacchia was writing the Questiones, Harvey 
 published his great discovery of the circulation of the blood. 
 Its influence on the advancing science of medical jurispru- 
 dence was soon manifest. Harvey himself was no mean in- 
 vestigator of medico-legal questions. He undertook to test 
 the value of Galen's dictum respecting the difference between 
 adult and fcetal lungs in relation to the question of infanti- 
 cide. The hydrostatic test was then engaging the attention 
 of writers and experimenters. In the thirty years between 
 Zacchia's treatise and that of Bohn (presently to be men- 
 tioned), disquisitions on this test were written by Bartolini, 
 Swammerdam and Jan Schreyer, not to mention others of 
 perhaps equal note. Baitolini, a Danish physician, insisted 
 that the test of the infantile lung sinking or swimming, told 
 whether or no respiration had taken place, and to his re- 
 searches on this point he added others on the period of utero- 
 gestation. The close of this century was signalized by the 
 production of a once celebrated treatise, the De Renunciatione 
 Vulnerum of Bohn. Bohn was also author of the Dissertatio 
 
 * This is the date given in the American Cjcloptdin (RevistdEd., 1873, 
 Art. Medical Jurisprudence), and, if I mistake not , in the Enc) do] aedia Brilan- 
 nica. Dr. Beck, in his treatise on Medical Jtirispi ucltuce (Eleventh Ed.,/«- 
 troductiou) fixes it eailier, viz., in 1598. 
 
 % Spelled sometimes Bacchias, otherwise Bacchia. 
 
MEDICO-LEGAL SCIENCE. 29 1 
 
 MedicincB Forensis and of the De Officiis Medici Duplicis — 
 Clinici et Forensis — works whose mere titles sufficiently indi- 
 cate the practical tendency of the time. 
 
 As Germany was the cradle of medical jurisprudence, so 
 also she was the first country to establish lectures upon that 
 subject. About the middle of the seventeenth century 
 Michaelis delivered the first course of forensic medicine in 
 the University of Leipzig, and his example was followed by 
 Bohn, the author to whose works I have just now alluded. 
 
 In France, excepting Blegny's Doctrine ties Rapports en 
 Chirurgerie, and the subsequent as well as more useful work 
 of Devaux, L'art de /aire des rapports en Chirurgerie, very little 
 was done during the seventeenth century to promote Medico- 
 Legal Science. I must not omit to mention, however, that 
 in 1603, more than half a century after the Diet of Ratisbon, 
 Henry IV., of France, authorized his medical adviser to ap- 
 point skilled physicians and surgeons to the duty of making 
 judicial inspections in all the jurisdictions of the kingdom. 
 For some unexplained reason this commission failed to meet 
 the expectations of the throne, and it was dissolved in 1692 
 by Louis XIV., who substituted for it the office of hereditary 
 royal physician and -surgeon. But in consequence of the 
 venality and mismanagement of the incumbents of this office 
 it was abolished in 1790, and the subsequent events of the 
 Revolution gave no time for the consideration of medico- 
 legal reform. 
 
 Throughout the greater part of the eighteenth century 
 Germany kept the lead in medical jurisprudence. Professor- 
 ships of the Science were established in many of her univer- 
 sities, and her writers grew more numerous than ever before. 
 Her chief works of this time were Storch's De Medicine Utili- 
 tate in Jurisprudenti'a (1730). Its main aim was to vindicate 
 the high importance of medico-legal study. Then followed 
 Alberti's Systema, in six volumes. Professor of legal medicine 
 at Halle, Alberti was deeply imbued with the doctrines of 
 Stahl ; but though there are conspicuous traces of the undue 
 influence of his master's teachings in the Systema, his indus- 
 try in the collection of facts made it the completest treatise 
 of its time. Another important production of this period is 
 
292 MEDICO-LEGAL SCIENCE. 
 
 Tichmeyer's InstitutionesMcdicinoe Legalis Vel Forensis, for long 
 a text book in the hands of practitioners and students. It is 
 to the industry of Schlegel however, that Germany owes one 
 of the most useful publications of the eighteenth century, if 
 not indeed the most useful one. It was entitled Collectio Opus- 
 culorum, and consisted of some forty dissertations by various 
 German writers on numerous medico-legal topics, including 
 wounds, poisoning, infanticide, utero-gestation, insanity and 
 the legal inspection of dead bodies. It was in fact a thesaurus 
 of the medico-legal literature of the first half or three-fourths 
 of the eighteenth century, and as suqh, apart from its other 
 merits, it possesses no slight value as a landmark in the his- 
 tory of medical jurisprudence. 
 
 In Italy, excepting Valentini's Pandecta Medico-Legales (a 
 collection of academical discussions and opinions or medico- 
 legal authorities up to his time), published in 1701, and again, 
 together with his Novella, in 1722, little was done during the 
 eighteenth century. A like torpor had settled on medico- 
 legal science in France until the celebrated Villebranch case 
 brought out a lively conflict of opinion between Louis, 
 Astric and Bovart on the one side, and Lebas with Petit on 
 the other. The main question in dispute related to the truth 
 of the pretended instances of protracted utero-gestation, 
 Louis and his colleagues denying, while his opponents 
 affirmed their existence. The reasoned opinion of Louis is 
 remarkable for breadth and logical precision, and with him 
 rested the honors of the day. His subsequent efforts in legal 
 medicine were some valuable communications to the Paris 
 Royal Academy of Surgery on the reliable signs of death, on 
 drowning and the means of distinguishing between suicidal 
 and homicidal hanging. He also delivered aseries of learned 
 opinions on the case of Calas and others. 
 
 The impetus given by Louis to medico-legal inquiry in 
 France was seconded, and in a measure anticipated, by 
 Chaussier, who addressed the Academy of Dijon in 1789, on 
 the importance of minute and careful inspection in all cases 
 of death from blows or wounds, and whose course of lectures 
 in the same town in 1789 was the first ever delivered in that 
 country. Upon the heels of Chaussier's address came 
 
MEDICO-LEGAL SCIENCE. 293 
 
 Fodere^s great Traite de Medicine Legal in 1790, a work rich in 
 illustrative cases, still frequently quoted in our standard 
 treatises, and forming an epoch from which the subsequent 
 great activity of French medico-legal investigators must be 
 dated. The most generally known publications during this 
 century since that of Foder£ are Orfila's Traite des Poisons, ou 
 Toxicologie Generate, in two volumes, followed by his Elements 
 de chimie applique a la Medicine and his Traite des Exhumations 
 Juridiques, a work afterwards merged in the famous Traite 
 de Medicine Legale. Though born in Spain, and a student of 
 medicine at Barcelona, Orfila's fortunes were cast in France, 
 where he became naturalized, and where, among other ap- 
 pointments, he held the professorship of medical jurispru- 
 dence in the Faculty of Medicine of Paris. 
 
 The enthusiasm for medico-legal science spread from Ger- 
 many and France to Great Britain in the first decade of the 
 present century. Previous to that time, England, which had 
 given new political and philosophical doctrines to Europe, 
 had made little or no progress in the study of medico legal 
 questions. True, a few tracts relating to those questions had 
 been written by Monro, Denham and the brothers John and 
 William Hunter, but no attempt had been made to teach 
 medical jurisprudence, either through the medium of lec- 
 tures or of systematic treatises. Dr. Samuel Farr's Elements 
 of Medical Jurisprudence, published in 1788, was the first Eng- 
 lish text-book on the subject, though it was mainly a trans- 
 lation. To Scotland was reserved the honor of inaugurating 
 those medico-legal studies which have since been pursued 
 with so much success both there and south of the Tweed. In 
 1801 Dr. Andrew Duncan gave at Edinburgh the first course 
 of lectures on medical jurisprudence that had ever been de- 
 livered north of the British Channel, and in 1806 Dr. Andrew 
 Duncan, Jr., his son, occupied the first chair of legal medi- 
 cine in the same city. The year 1816 saw the first original 
 English publication on the subject. It was the prodution of 
 Dr. Mall, who entitled it an Epitome of Judicial and Forensic 
 Medicine for the use of Medical Men, Coroners and Barristers. 
 Tto years later appeared the first English book on a subject 
 which more, perhaps, than any other since its publication, 
 
294 MEDICO-LEGAL SCIENCE. 
 
 lias occupied the minds of lawyers and physicians. It was 
 Haslam's Medical Jurisprudence as it relates to Insanity, according 
 to the law of England. About this time, too, Dr. Gordon 
 Smith published his Principles of Forensic Medicine, a book 
 rich in references to adjudicated British cases, and, upon the 
 whole, the most satisfactory of its day. In 1820, Dr. William 
 Hutchison issued his tract on Infanticide, and soon after ap- 
 peared that excellent and entertaining joint production of a 
 lawyer and a physician, Paris and Fonblanque's Medical Ju- 
 risprudence. Thenceforth legal medicine made rapid progress 
 in Great Britain ; her medical schools established professor- 
 ships on the subject, and her physicians vied with their 
 brethren on the continents of Europe and America in the 
 production of treatises and dissertations which supersede all 
 that was done by earlier workers. If this statement needed 
 confirmation, I should only have to point to the works of 
 Guy, Christison and Taylor, not to mention a host of less 
 comprehensive, though, within their respective limits, equally 
 valuable productions. 
 
 III. Almost contemporaneous with Dr. Andrew Duncari-'s 
 course of lectures in Edinburgh, and two years previous'to 
 the establishment of a chair of medical jurisprudence in the 
 same city, a course of medico-legal lectures was delivered 
 here in America, at Columbia College, by Dr. James S. 
 Sfringham, a native of the city of New York. After return- 
 ing from the University of Edinburgh, whither he had re- 
 paired to finish the medical education begun in this country, 
 Dr. Stringham was appointed Professor of Chemistry in Col- 
 umbia College. Warmed by the enthusiasm for medical 
 jurisprudence which he had imbibed in the capital of Scot- 
 land, he volunteered, in 1804, a course of lectures on the new 
 science, and encouraged by the interest he awakened in his 
 hearers, repeated the course every year until his resignation. 
 In 1813, he was appointed to fill the chair of Medical Juris- 
 prudence in the College of Physicians and Surgeons of this 
 city, and performed the duties of this position with signal suc- 
 cess, until ill-health obliged him to resign. In the untimely 
 death of Professor Stringham, which occurred on the 29th 
 day of June, 1817, twenty years from the beginning of a use- 
 
MEDICO-LEGAL SCIENCE. 
 
 >95 
 
 ful and even brilliant career, medico-legal science in this 
 country lost its pioneer and one of its most earnest and suc- 
 cessful teachers. 
 
 Many of the prominent medical schools throughout the 
 country were not slow to follow the example of Columbia 
 College. Philadelphia Medical College founded a chair of 
 Medical Jurisprudence in 1812. The Western Medical Col- 
 lege instituted one in 1815, with Dr. Theodoric Romeyn 
 Beck, author of the famous text-book on Medical Jurispru- 
 dence, as lecturer. This rioted appointment was followed by 
 that of Dr. Walter Channing as Professor of Medical Juris- 
 prudence in Harvard University. By the middle of the cen- 
 tury instruction in forensic medicine was generally recog- 
 nized as an indispensable part of a complete medical edu- 
 cation. 
 
 Seventy-two years have elasped since Dr. Stringham deliv- 
 ered his first course of lectures on Medical Jurisprudence at 
 Columbia College, and in that time the American literature 
 of the subject has grown to large proportions. Dr. Beck's 
 well-known treatise on the Elements of Medical Jurispru- 
 dence first saw the light in 1823, since when it has passed 
 through twelve editions. The great work of Whaiton and 4 
 Stille — the latter a prominent physician, the former a distin- 
 guished jurist — now in its third edition, comprises the most 
 exhaustive treatise on psychological law extant in our lan- 
 guage. Besides these, which aie the most popular of medico- 
 legal text-books, we have a clear, concise and sensible vol- 
 ume by Mr. Dean, of Albany, N. Y., in many respects en- 
 titled to rank with the two great treatises just mentioned. 
 
 These are the general treatises on medical juiisprudence 
 which have emanated from the pens of American students of 
 legal medicine. The original productions on special medico- 
 legal subjects are far more numerous, and may, for conven- 
 ience sake, be classified under three heads, viz. : Insanity, Mal- 
 practice and Medical Evidence. 
 
 And first of Insanity. The study of the medico-legal rela- 
 tions of the insane is of recent origin, extending not much 
 further back than the beginning of the present century. It 
 dates properly from the demolition of the purely psychic 
 
296 MEDICO-LEGAL SCIENCE. 
 
 theory of Insanity. This theory, condemned by Hippocrates 
 and his immediate followers survived them all and continued 
 predominant through antiquity and the middle ages down 
 to the year 1750, when it received its first blow. The philos- 
 ophers of the eighteenth century had labored to destroy the 
 spiritual notions of their predecessors, and had introduced 
 their rational ideas into the investigation of mental phenom- 
 ena. But it was not with them that the great change in 
 the doctrines and treatment of insanity began. Its origin 
 was here in America, among men neither ignorant of the 
 drift of phylosophy in the old world, nor wholly exempt 
 from its influence. It was in the then colonial settlement of 
 Pennsylvania that Benjamin Franklin, assisted by individuals 
 of equally benevolent dispositions, established the Pennsyl- 
 vania Hospital, the first institutiou of its kind in the country. 
 Its foundation was contemporaneous with the English con- 
 quest of Canada, and (what is of more immediate importance 
 to us at the present moment) the beginning of American 
 Medical Science. Until this time the practice of medicine 
 and surgery in the United States was, I may say, entirely in 
 the hands of ignorant pretenders, with here and there a 
 sprinkling of well-meaning missionaries, whose stock of 
 medical lore was limited to what they had acquired by their 
 own untutored observation. Few trained medical men cared 
 to leave the comparative ease and comfort of practice among 
 a luxurious and thickly-settled community like England, for 
 the hardships and dangers of new-born colonial life. But with 
 the British regiments that made New York the base of their 
 operations against Canada, there came a staff of highly 
 trained military surgeons, and in the hospitals established for 
 the troops under their care, our native aspirants to medical 
 and surgical skill had their first opportunity of witnessingthe 
 treatment of the sick and wounded according to established 
 principles. 
 
 The foundation of the Pennsylvania Hospital was* as I have 
 just said, contemporaneous with this new movement, and it 
 is evidence of the progress of knowledge, even in those days, 
 with regard to the nature of insanity, that a special depart- 
 ment of that institution was appropriated to the treatment of 
 
MEDICO-LEGAL SCIENCE. 
 
 297 
 
 the insane. Spreading from this as a centre, special institu- 
 tions for the management of lunatics have arisen in all sec- 
 tions of the Union, and number now some seventy-four 
 in all. 
 
 Around these several lociiov the treatment of insanity there 
 has grown up a body of experts in that disease. They are 
 men who have acquired the power to discriminate not merely 
 between the sane and the insane, but between the different 
 kinds of insanity ; and who, from knowing the intellectual 
 and moral status of the insane, claim a voice in the decision 
 of their civil rights and criminal responsibility. One of the 
 first fruits of the investigations of these experts — investiga- 
 tions pursued within the walls of lunatic asylums — was a 
 classification of the insane. Hitherto one kind of insanity 
 had monopolized attention, or, rather, all forms of the mal- 
 ady had been confounded in one — that in which the reason 
 was wholly involved. One thus afflicted might have his lucid 
 intervals it is true, but when these were over his mind lapsed 
 into total derangement. Soon, however, it was discovered 
 that there was a partial, as well as a total, disorder of the 
 reasoning faculties. And soon, again, another fact was dis- 
 covered that there was an insanity of the moral faculties 
 without any apparent abnormality of the reasoning powers. 
 And then, finally, after the refinement of classification had 
 been pushed still further, not a few of the many students of 
 mental disease boldly declared that one might be insane in a 
 single thing only, while perfectly sane in all other things. 
 
 Turning now from this superficial glance at the progress of 
 medical knowledge respecting the insane, to the legal rela- 
 tions of insanity, we shall find the beginning of that antagon- 
 ism betwen the two which is as yet far from a reconciliation. 
 After the new science of mental disease had abolished the 
 error that insanity necessarily involved the entire mental or- 
 ganization, it found this notion still surviving in courts of 
 law, influencing their rulings and decisions. Gradually it 
 succeeded in abolishing it here also, and successfully main- 
 tained the doctrine of partial insanity as an excuse for crime. 
 But the indispensable legal test of responsibility still re- 
 mained the capacity to know, and continued the same even 
 
298 MEDICO-LEGAL SCIENCE. 
 
 after criminal acts done under the influence of delusion had 
 been exempt from punishment. 
 
 Down to this time, at all events, there had been no contest 
 between law and medicine on the test of responsibility. That 
 contest began when an entirely new claim was set up for the 
 medically insane ; when some alienists maintained the co-ex- 
 istence of moral insanity with intellectual soundness — with 
 the capacity to know — and declared that this exclusively 
 moral insanity conferred immunity from the penal conse- 
 quences of criminal acts. Originally advocated by Dr. 
 Pritchard, of England, this doctrine has been maintained 
 with much earnestness, eloquence and ability by Dr. Isaac 
 Ray, of Philadelphia. His views were set forth as early as 
 1836, in a book on the Jurisprudence of Insanity, which has 
 gone through five editions, and which, despite the many com- 
 petitors that have since appeared, holds it rank as one of the 
 ablest in our language. But the theory of emotional insanity 
 as advocated by Dr. Pritchard and Dr. Ray, is now repudiated 
 by courts of law and opposed by the majority of alienists. 
 
 Hardly any medico-legal topic of the last forty or fifty 
 years has occasioned more literary activity than this one of 
 the relations of lunacy to responsibility. It has been dis- 
 cussed in numerous special treatises and monographs, some 
 reprints from English works, and others the productions of 
 American authors. Among the reprints I shall mention 
 Dr. Maudley's Physiology and Pathology of the Mind and his 
 Responsibility in Mental Diseases. The latter of these works 
 treats almost exclusively of the medico-legal relations of 
 lunacy, an aspect of the subject which forms but an incident 
 in the contents of the former. Besides these, which are 
 standard works, (though the partisan tone of the Responsi- 
 bility in Mental Diseases detracts somewhat from its merits as a 
 scientific exposition,) we have a reprint of Dr. Blandford's 
 clear, concise and judicious book, where the legal relations 
 of insanity are treated with admirable skill and fairness. 
 This book is made doubly valuable to the American reader 
 by Dr. Ray's Appendix, giving the laws of the several States 
 of the Union in regard to the custody and confinement of the 
 insane. Of monographs, published either separately or col- 
 
MEDICO-LEGAL SCIENCE. 299 
 
 lectively, I shall mention Dr. Hammond's Insanity in relation 
 to Crime, published in 1873, and the numerous issues of the 
 New York Medico-Legal Society, probably the most inter- 
 esting collection of their kind in the English language, pub- 
 lished in book form in 1874. Among the current literature 
 of the subject the most noted are the American Journal of In- 
 sanity, published at Utica, N. Y.,and conducted by Dr. Gray, 
 Medical Superintendent of the State Lunatic Asylum ; the 
 now extinct Quarterly Journal of Psychological Medicine, edited 
 by Dr. Hammond, and its able successor, the Journal of Ner- 
 vous and Mental Diseases, issued quarterly in New York. 
 
 The progress of our survey leads us next to Malpractice 
 and Medical Evidence, though of the latter, which might 
 well claim an evening to itself, the limit of time at my dis- 
 posal will oblige me to say very little. 
 
 Actions for criminal malpractice against medical men are 
 rare, to the honor of the profession be it said, but suits for 
 civil malpractice have been unnecessarily common, and are so 
 even yet. Surgeons are the principal sufferers by these suits, 
 whilst amputations, fractures and dislocations constitute the 
 chief emergencies from whose results they have arisen. 
 
 During the first half of this century, civil malpractice suits 
 were so frequent as to cause serious apprehension in the 
 ranks of the profession. Many surgeons of great skill and 
 experience, panic-stricken, abandoned the practice of an art 
 whose uncertainties and risks involved serious consequences 
 to reputation and property, whilst those who continued min- 
 istering to surgical cases did so in fear and trembling. 
 
 This unfortunate state of affairs — unfortunate whether we 
 regardthe interests of surgical science or those of the com- 
 munity — is immediately traceable to popular misconception 
 as to the possibilities of surgical skill. But the causes of 
 this misconception existed elsewhere, and were chiefly two 
 in number. There was, first of all, on the side of the lay 
 community, a natural and very excusable ignorance ; and 
 secondly, on the side of the profession, or rather I should 
 say of some of its members, the making of too confident 
 promises as to the result of surgical treatment; for it should 
 in candor be confessed that no insignificant share of the 
 
300 MEDICO-LEGAL SCIENCE. 
 
 public misunderstanding, to which allusion has been made 
 originated in the imprudence of surgeons themselves. The 
 combined result of these causes was that the public expected 
 and even demanded more than the profession could per- 
 form. 
 
 The first step in the removal of this state of ignorance on 
 the one side, and of presumption on the other, was the en- 
 lightenment of profession and public alike. The task was 
 begun by instituting rigorous inquiry into the results of sur- 
 gical treatment, in fractures and dislocations more especially 
 since these were the things in regard to which most igno- 
 rance prevailed. The first to undertake this inquiry was our 
 honored President, Dr. Frank Hastings Hamilton. He 
 visited many, perhaps most, of the chief centres of surgical 
 experience, made careful examinations, including measure- 
 ments, of the fractured limbs under treatment in their hos- 
 pitals, not overlooking the dry specimens in their museums, 
 and compared finally the results thus obtained with cases in 
 his own experience and in that of his contemporaries. The 
 product of these labors saw the light in a series of publica- 
 tions extending from 1&49 to 1868. The first and second of 
 these publications were cast in the form of tables of frac- 
 tures giving, among other items, the place and character of 
 each fracture, together with the final result of approved 
 methods of treatment. The third comprised a series of 
 papers oh Deformities after Fractures, and was undertaken in 
 1855, at the request of the American Medical Association. 
 This series, detailing the histories of 605 cases, was published 
 in the transactions of the above-mentioned Association for 
 the years 1866, '67 and '68. 
 
 Dr. Hamilton's labors had the effect of modifying, to a 
 very important extent, the current notions as to the progno- 
 sis of fractures. The standard authorities in surgery, with 
 possibly here and there a rare exception, had been teaching 
 that the general result of the skillful treatment of fractures 
 ought to be union, without shortening or other deformity. 
 The distinguished editor of Chelius's Surgery, Dr. South, had 
 even declared that the medical attendant would he himself 
 at fault in most cases where so happy an issue was not 
 
MEDICO-LEGAL SCIENCE. 301 
 
 secured.* Now although this assertion wasundoubtedly hazard- 
 ous and extreme, yet coming as it did from a master in the sur- 
 gical art it was only too promptly echoed by the rank and 
 file of the profession, and too readily taken up Ly the public, 
 who on their part, soon learnt to exact that which their med- 
 ical attendants declared themselves able to accomplish. Such 
 being the state of the case, it is not at all surprisii g that in 
 some of the many instances in which the cure disappointed 
 the expectations of the patient, whether these expectations 
 were created by public mmor or by the promises of his sur- 
 geon the surgeon should have had to defend his leputation 
 and property in a suit for malpractice. 
 
 No small share of the failures and suffeiings incident to 
 active life is consequent upon a vainglorious asseition of our 
 powers, or, may be, a somewhat culpable ignorance of their 
 limits. To take an instance of the latter alternative, heie 
 was agreat misconception of the limits of surgical skill, and to 
 its authors, no less than to its perpetuators,whatever their mo- 
 tive, whether honest conviction or the greed of self-glory, is 
 due much of the pecuniary loss and moral obliquy that have 
 overtaken many discreet and conscientious surgeons in the 
 discharge of their professional duty. But the remarkable thing 
 about the misconception alluded to was this, that it had no 
 basis of fact, or at least none wide enough to give it anything 
 but a mere semblance of support. It was one of the too plenti- 
 ful brood of hasty generalizations that are every daybuiltupon 
 a limited number cf instances imperfectly observed. The 
 truth is, that no trustworthy statistics had been preserved in 
 any of the great centres of hospital practice ; no circumstan- 
 tial records by which the optimist doctiine in reference to 
 prognosis in fiactures could be established. But such dis- 
 jointed testimony as could be procured proved this doctiine 
 false, and that, too, in the very institutions where it was 
 most confidently asserted. The progress of Dr. Hamilton's 
 inquiry in this direction furnished not the first recorded in- 
 stance of the superiority of principles to practice, of the con- 
 flict between the ideal and the actual, nor the first view of a 
 battle-ground on which prejudice contends against experi- 
 ence and human interest. 
 
 * Cbelius' Surgery ediud by Dr. South, Am. ed., vol. 1, p. 627. 
 
302 MEDICO-LEGAL SCIENCE. 
 
 Whilst Dr. Hamilton was pursuing his labor of love in the 
 cause of truth and justice, the increasing frequency of suits for 
 malpractice was exciting the attention of the medical profes- 
 sion, more especially in the West. At the annual meeting of 
 the Ohio State Medical Society in 1856, it was the subject 
 of an animated discussion, the chief point considered being, 
 however, not so much the proper measures for prevention as 
 the best way of self-protection. Gradually, though, the su- 
 perior value of the former question came to be recognized 
 by the profession at large, if riot by the meeting referred to. 
 It was seen that the most efficient means of prevention (and 
 consequently of self-protection) was enlightenment — the 
 knowledge among medical men of their legal duties and lia- 
 bilities, the knowledge among courts of law and the general 
 public of the possibilities of surgical skill. It was not long ere 
 books appeared having this double object in view. The first 
 to issue from the press in this country was Prof. John J. 
 Elwell's Medico- Legal Treatise on Malpractice and Medical Evi- 
 dence, comprising the Elements of Medical Jurisprudence. The or- 
 iginal edition of this work bears date 1859. The third and 
 latest edition appeared in 187 1. Prof. Elwell enjoyed a 
 special advantage for the task he undertook, in having a 
 practical knowledge of law and medicine. The first ten 
 years of his professional life was spent in the practice of 
 physic and surgery, after which he qualified himself for the 
 bar and became a successful lawyer. The object of his 
 treatise is to teach medical men the legal requirements of 
 their position, and to instruct lawyers in the possibilities of 
 practical medicine and surgery. It is aptly epitomized in the 
 celebrated saying of the distinguished Philadelphia coun- 
 selor, David Paul Brown, which Prof. Elwell selected as the 
 motto of his book, that "A doctor who knows nothing of 
 law, and a lawyer who knows nothing of medicine, are defi- 
 cient in essential requisites of their professions." The many 
 high enconiums that have greeted this work at home and 
 abroad amply attests both the need there was of it in the 
 successful manner in which its object has been fulfilled. 
 
 The effort to diffuse a proper knowledge of the obliga- 
 tions of medical men and the possibilities of their art, begun 
 
MEDICO-LEGAL SCIENCE. 303 
 
 by Prof. Elwell, was ably seconded by Prof. Ordronoux, in 
 an elaborate treatise on the Jurisprudence of Medicine, and by 
 Dr. M. A. McClelland, of Knoxville, Ills., in a compendious 
 brochure on civil malpractice. Dr. Ordronoux's treatise 
 needs no word of commendation from me ; it is a veritable 
 boon to every student of legal medicine. Dr. McClelland's 
 little volume is in the form of a report which he presented 
 to the Military Tract Medical Society, at its fifteenth annual 
 meeting, in January, 1873. It treats of the legal responsi- 
 bilities of surgeons, and gives in full transcript many of the 
 more important decisions in adjudicated cases of alleged 
 malpractice. Dr. McClelland is an earnest and patient 
 laborer in this important field, has in press a more exhaus- 
 tive work on the same subject, bearing title : Civil Malprac- 
 tice : A Treatise on Surgical Jurisprudence, with Chapters on 
 Prognosis in Fractures, Negligence and Medical Evidence. Ac- 
 cording to the prospectus of this work, with which I have 
 been favored, it is to contain, among other valuable material, 
 an abstract of forty-five cases of alleged malpractice decided 
 in the lower courts, and one thousand tabulated cases show- 
 ing the results of surgical treatment.* 
 
 Down to the time at which we have now arrived, Medico- 
 Legal Science had been exclusively pursued in the study and 
 laboratory. The contributors to its literature had been gen- 
 erally medical men, though in a few prominent instances 
 lawyers had materially assisted them. The great work of 
 Paris and Fonblanque in England, and the greater of Whar- 
 ton and Stilld in America, were the conjoint products of a 
 literary partnerships between members of the two profes- 
 sions. Dr. Elwell's treatise, lately alluded to, was made 
 possible by the happy combination of ripe legal and medical 
 knowledge in one person. 
 
 But aside from these occasional literary partnerships, there 
 had been no concerted effort of the two professions in the 
 interest of Medico-Legal Science, and, above all, no associa- 
 tion for purposes of mutual enlightenment and combined 
 action in the medico-legal issues of the day. At length such 
 
 *The work is announced for early publication by the Messrs. Hurd & Houghton. 
 
J04 MEDICO-LEGAL SCIENCE. 
 
 a body did appear ; and to this great centre of law and medi- 
 cine is due the distinguished honor of having founded the 
 first association for the Study of Medico-Legal Science then 
 known to the world. Let us pause a moment to note the or- 
 igin of this association. 
 
 In the Cormier's office of the city of New York, cases with 
 important bearings, legal as well as medical, were of fre- 
 quent occurrence. The Deputy Coroners (who are medical 
 gentlemen attached to the Coroner's office), while fully at 
 home in the medical aspects of the points coming under 
 their attention, were not infrequently at a loss when obliged 
 to consider their legal bearings. It was the sense of their 
 deficiency in this latter respect that gave origin to the idea 
 of an association to include the professions of law and med- 
 icine on a footing of perfect equality. 
 
 I well remember the first formal meetings of the Medico- 
 Legal Society of New York. The apostles of the movement 
 were mainly of the medical profession. They numbered a 
 few Deputy Coroners (among whom Dr. Wooster Beach was 
 the leading spirit), some aspiring young medical practition- 
 ers, and a fair sprinkling of veterans in the campaign against 
 disease and suffering. With all their sanguine anticipations, 
 and they were full of them, they formed but a very obscure 
 idea of the future scope, importance and usefulness of the 
 Society about to be launched upon the world. They had 
 planned, in fact, no more ambitious role for it than that of a 
 kind of appendix to the Coroner's office, a retreat where 
 they might more leisurely and attentively discuss the ques- 
 tions that every day arose in the discharge of the duties of 
 that office, questions which the press of its business left them 
 no other time or occasion to consider. Autopsies entered 
 largely into that business, and so the presentation and study 
 of diseased or injured organs assumed, as a matter of course, 
 most prominence in the Society's earlier proceedings. But 
 scarce six months had elapsed from the date of its organiza- 
 tion, in July, 1867, when its horizon began to widen, and from 
 details, not indeed petty, but of secondary importance, it 
 passed to the consideration of questions of broader and more 
 abiding medico-legal interest. Of these Malpractice was 
 
MEDICO-LEGAL SCIENCE. 305 
 
 about the first to be discuesed. Then followed Infantcide, 
 The Evidences of Criminal A bortion, The Duties of Medical Witness- 
 es, The Law in Reference to Suicide, and Intemperance in Life Insur- 
 ance, Methomania in Relation to Business and Criminal Responsibil- 
 ity, Hereditary Diseases of the Nervous System, and lastly, to close 
 the period of what I may call speculative discussion, Hereditary 
 Influence in Mental Diseases. During all this time, in which 
 medico-social no less then medico legal subjects were con- 
 sidered, the Society was unconsciously preparing itself for 
 the more practical issues that were soon to crop up in the 
 courts of civil and criminal procedure. Meanwhile, also, it 
 grew in numbers ; many learned and influential men of both 
 professions joined its ranks, and the interest in its proceed- 
 ings increased with its members, and even spread abroad 
 among the general public. No small share of this outside 
 interest was awakened by the daily press, which liberally 
 devoted its columns to the addresses and debates at the So- 
 ciety's meetings. On their part these addresses and debates 
 were of a nature lo elicit the earnest attention of the com- 
 munity. For a considerable period they had reference to 
 the plea of insanity in criminal cases. Several important 
 trials had taken place in which this plea was used, and 
 as many thought abused. A doctrine had come into vogue, 
 advocated by some experts in lunacy, even sanctioned by the 
 verdicts of some juries, whose brief success inspired thought- 
 ful men in general with feelings of distrust. It was 
 the doctrine of emotional insanity, according to which a 
 capital offense, committed in a frenzy of passion, or under 
 some so-called uncontrollable impulse, must be ranked among 
 irresponsible acts. Under this doctrine Cole and some sub- 
 sequent murderers had escaped punishment for their crimes. 
 And now the plea based upon it had grown so common and 
 had proved so serviceable in the interest of the criminal 
 class, that there arose a general feeling of alarm for the peace 
 and security of society. There was, indeed danger that 
 the unwarranted use of the plea would subject it to public 
 derision, and that its abuse would create so strong a preju- 
 dice against it in the public mind, that it would have little 
 weight, even when urged with good faith and on satisfactory 
 
306 MEDICO-LEGAL SCIENCE. 
 
 grounds. Such was the general drift of public sentiment in 
 regard to this question when the Medico Legal Society took 
 it up, and almost simultaneously, as though by mutual con- 
 sent, its partisans and opponents, suspending their contest, 
 committed it to the judgment of the Society, confiding, as it 
 would seem, in the impartiality of its investigation and in the 
 justness of its ultimate decision. The investigation was. a 
 protracted one ; it is not ended yet, and may not end for a 
 long time to come ; but so far as it has proceeded it justifies 
 the public anticipations, and, not only this — it has produced 
 a literature of the subject highly creditable to American 
 medical jurisprudence. The titles of some of the subjects 
 discussed will serve to indicate the scope of this literature. 
 I select them at random, first from the productions of medi- 
 cal members as follows : 
 
 A Medico-Legal Study of the Case of Daniel McFarland, The 
 Plea of Insanity in Criminal Cases, The Legitimate Influence of 
 Epilepsy upon Criminal Responsibility, Medico-Legal Suggestions on 
 Insanity, Morbid Impulse, Medico-Legal Points in the case of Dan- 
 iel Montgomery, Epilepsy in its Relations to Lnsanity, The Princi- 
 ples of Criminal Responsibility as Applied to the Insane. Then 
 from among the many able addresses delivered by legal 
 members, I may mention the titles of the following ; Does 
 the Law deal unfairly with Questions of Insanity ? Legal Respon- 
 sibility and Accountability, Juries and Physicians on Questions of 
 Insanity, Emotional Insanity. 
 
 The length of this discussion gave ample opportunity for 
 the expression of opinion on the relations in general of law 
 to insanity. Naturally enough, conflicting views were advo- 
 cated, the legal gentlemen being almost a unit in support of 
 the traditional court rulings, while their medical associates 
 assailed these rulings and advocated their reform. At length, 
 out of the conflict of opinion, came a remedy for the scan- 
 dals which had been caused by the abuse of the insanity 
 plea, and that remedy was in the shape of a legislative en- 
 actment, passed in 1874, making the defense of insanity a 
 separate issue, to be passed upon by a commission ere the 
 trial for the alleged criminal act could proceed. Although 
 this act has been adversely criticised, mainly, I think, on the 
 
MEDICO-LEGAL SCIENCE. 307 
 
 ground of its alleged unconstitutionality, its practical work- 
 ings have been so far beneficial. Dr. Gray testifies to this effect, 
 touching at the same time upon the advantages of the new 
 law, in the report of the State Lunatic Asylum, where he 
 says : "The change in the law regarding criminals has, we 
 think, been generally satisfactory. The question of insanity 
 has come up for trial before a jury in but few cases, mostly 
 those which were indicted under the old law. Commissions 
 of lunacy have been held in the other cases, and the decisions 
 given have been sanctioned by the courts in all instances. 
 By this process errors are less likely to occur, and the ex- 
 pense of a protracted trial of the question of insanity is 
 saved. When the insanity of the person indicted is estab- 
 lished, the patient is sent directly to an asylum, and the 
 trial under the indictment, with all its attending expense and 
 evils, avoided. Prominent among these evils is the demoral- 
 ization which must always take place when insanity is 
 pleaded as an evasive defense — a spectacle which has too 
 often occurred in this State."* 
 
 The act making the defense of insanity a separate issue 
 was one of the great services rendered by the Medico-Legal 
 Society to justice and morals in this State. Another of equal 
 importance remains to be stated ; I allude to the reform the 
 Society caused to be made in the old law against criminal 
 abortion. That law was, though all unconsciously, be it un- 
 derstood, an incentive to the crime it prohibited. By arbi- 
 trarily fixing c. time — that of "quickening" — at which the 
 fatus in utero was a living being, it tacitly allowed the de- 
 struction of fcetal life, provided it was effected before this 
 period had been reached. I say tacitly allowed, for no pun- 
 ishment was inflicted on the abortionist if he acted before 
 " quickening," unless his act caused the death of the mother. 
 The consequences were evident enough ; abortionists flour- 
 ished, abortions were daily occurrences, and the foundation 
 of social morality was in danger of destruction. 
 
 It so happened that about the time the Medico-Legal So- 
 ciety began to grapple with this growing social evil, the 
 
 *Thirty-third Annual Report of the Managers of the State Lunatic Asylum, 
 Utica, N. Y., for the year 1875, p. 16. 
 
308 MEDICO-LEGAL SCIENCE. 
 
 community at large was suffering from the shock of several 
 recent criminal abortions of a very atrocious character. The 
 events of the day, therefore, were favorable to the success of 
 the Society's efforts. Without loss of time a Committee was 
 appointed to examine the old law and report any sugges- 
 tions as to necessary reform.* It was my distinguished honor 
 to be Chairman of that Committee, and I can bear lestimony 
 to the conscientious manner in which it discharged its whole 
 duty. There is no occasion, however, to enter into a history 
 of the Committee's work.; suffice it to say, that on its recom- 
 mendations the law against criminal abortion underwent 
 some very important changes, and to these I must briefly al- 
 lude. In the first place the offense — which, you will bear in 
 mind, was the death of the mother if the abortion had been 
 attempted before quickening — this offense was manslaughter 
 in the second degree, a statutory felony punishable by im- 
 prisonment in a state prison for a term not less than four 
 and not more than seven years. Well, the amended law, 
 without, for good reasons, changing the denomination of the 
 offense, increased its punishment by fixing the minimum 
 penalty at not less than four years, the maximum being left 
 to the discretion of the court, in view of the past history of 
 the criminal. In the second place, the law of '69 only pun- 
 ished for giving medicines with intent to procure an abortion, 
 overlooking, strangely enough, all prohibition of the uSe of 
 instrunwits for the same purpose. This very material omis- 
 sion was supplied by the new act. But more important than 
 all these amendments, if we have regard to the actual pre- 
 vention of criminal abortion, was the change effected by the 
 erasure of the word "quick" from the statute. This radical 
 change made all criminal attempts to procure abortion, no 
 matter at what period of utero-gestation, of equal magnitude 
 as offenses, and has done more than anything else to put a 
 stop to crimes of this kind. 
 
 It is with no intention to violate the sobriety of these sim- 
 ple historical details that I call your attention to another in- 
 stance in which the Medico-Legal Society has served the 
 
 * See the New York Medical Journal for January, 1872, where the Report of 
 the Committee is published in full. 
 
MEDICO-LEGAI, SCIENCE. 309 
 
 cause of justice and humanity. Doubtless all remember the 
 case of Dr. Paul Shoeppe, of Carlisle, Pa., who was convicted 
 of murder in the first degree on the charge of having 
 poisoned Maria Stennecke. The proof of this accusation 
 was so weak as to suggest very grave doubts concerning the 
 .guilt of the accused, and these doubts were shared by the 
 medical profession throughout the world, wherever the testi- 
 mony in the case was published. The Medico-Legal Society 
 was just then rising to fame. It was known as an association 
 of legal and medical gentlemen engaged in the study of 
 medico-legal questions. Its efforts in aid of criminal law re- 
 form were acknowledged and appreciated ; its addresses and 
 discussions were interesting thousands who had hitherto 
 given little or no attention to medical jurisprudence. It 
 was therefore only* natural that a society of its standing and 
 influence should be appealed to for a judgment on the vital 
 question of this trial. That appeal actually came, and from 
 the accused himself. It asked for an impartial examination 
 of the testimony, and for a deliberate judgment as to whether 
 it sufficed to convict him. I need not stop to laud the report 
 that was presented to the Society by the Committee ap- 
 pointed on this question ; those who are best entitled to 
 speak have anticipated me in the pleasing office. It was re- 
 ferred to in terms of gratitude by the leading counsel for the 
 defense,* in words of high commendation by the learned 
 presiding judge, -j- and was openly endorsed by at least one 
 conspicuous American alienist. J 
 
 The care and safe-keeping of lunatics occupied no incon- 
 siderable share of public attention in the early part of the 
 year 1874. It was claimed that sane men and women had 
 
 * The words of this gentleman are : "But I must confess that if it had not 
 been for the thorough examination which your Society gave to the evidence in 
 the first trial (rousing, as did, all the medico-legal (sic) societies in lliis 
 country, and many medico-legal jurists in Germany), the preparation for the 
 second trial would have been vastly more difficult." Clark Bell, Inaugural 
 Address, 1872, p. 8.) 
 
 t He alluded to the committee's production as "The exhaustive report of 
 your Society, upon which I drew so largely in the discharge of my official duties 
 in that case." (lac. cit.) 
 
 % John J. Reese, M. D.. Professor of Medical Jurisprudence and Toxicology 
 in the University of Pennsylvania. 
 
310 MEDICO-LEGAL SCIENCE. 
 
 been immured in lunatic asylums, and that in the majority of 
 instances where such violations of personal freedom had 
 taken place, they were owing to the carelessness, ignorance 
 or even connivance of the certifying physicians. It is un- 
 doubtedly true that in some rare instances sane persons have 
 been confined in lunatic asylums. Not only,, however, was 
 their number much exaggerated, but the motives of the com- 
 mitting physicians was misunderstood and their conduct 
 misrepresented.* The public believing the real state of the 
 case to be such as it was represented to them, clamored for 
 redress, and, accordingly, an act passed the Legislature in 
 the year above mentioned, entitled An Act to revise and consol- 
 idate the statutes of the State relating to the care and custody of the 
 insane, the management of asylums for their treatment and safe- 
 keeping, and the duties of State Commissioners in Lunacy. It en. 
 joined (i) a certificate by two physicians under oath, after a 
 personal examination of the patient, setting forth his in- 
 sanity ; (2) that the certifying physicians must be qualified 
 medical men, of at least three years' practical experience in 
 the profession. 
 
 While this act was pending in the Legislature, the general 
 subject of the care and custody of the insane was under dis- 
 cussion by the Medico-Legal Society. A paper had been read 
 on the Rights of the Insane, and out of its consideration had 
 grown a wish to aid in securing any desirable reform in the 
 law relating to the confinement of lunatics. The act already 
 mentioned gave a practical aim to this wish, and at 
 a protracted meeting of the Society the entire sub- 
 ject was considered in a debate conducted by some of 
 the most accomplished alienists of the State. This inter- 
 change of opinion threw a flood of light upon the question 
 and contributed not a little to the success of the law, which, 
 aside from the popular misconception that gave rise to it, is 
 better than its predecessor. 
 
 One more achievement of the Medico-Legal Society re- 
 
 * That the commitment of sane persons of lunatic asylums is due to other 
 causes than those generally apprehended, is probably from the fact that despite 
 the greater stringency of the present law, the number of such commitments is 
 the same as formerly. For evidence on this point, see the report of the State 
 Lunatie Asylum, previously quoted, p. 16. 
 
MEDICO-LEGAL SCIENCE. 311 
 
 mains to be mentioned ere I close this meagre clironicle of 
 its history ; I allude to the founding of a great library of 
 works on medical jurisprudence. The members of the So- 
 ciety, obliged to search mure or less deeply into the various 
 questions forming the subjects of their papers and discus- 
 sions, looked around in vain for most of the authorities to 
 be consulted. There was no accessible medico-legal library 
 iu the State. That left by the late Dr. Beck was too remote 
 to be of any service, and the various libraries of this city, 
 whether scientific or miscellaneous, contained few works on 
 medical jurisprudence, apart from the standard modern text 
 books. To the task of forming a library of every important 
 medico-legal treatise extant in the modern language, the 
 Society now addressed itself, prompted thereto by the ap- 
 peals and endeavors of iis honored ex-President, Mr. Clark 
 Bell. The idea of such a library originated, if I mistake not, 
 with Mr. Bell, who signalized his able and successful leader- 
 ship of the Society by conducting it to a measurably success- 
 ful issue. His exertions were seconded by professional men 
 generally, whether members of the Society or not ; and' to 
 these combined influences New York is indebted for the 
 nucleus of what may, in time, be made one of the most per- 
 fect medico-legal libraries in America. Already the collec- 
 tion numbers between four and five hundred volumes in the 
 English, French and German languages, of all sizes, from 
 the modest monograph to the ponderous treatise, not to 
 speak of its many valuable periodical contributions to cur- 
 rent medico legal literature. 
 
 The Medico-Legal Society of New York was still in its in- 
 fancy when there arose a similar organization in the metrop- 
 olis of France.* The relations of the two have been friendly 
 from the beginning ; their mutual influence has been most 
 salutary, and, so far as is practicable, their forces are joined 
 for the achievement of the end denr to both— the advance- 
 ment of Medico-Legal Science. To further this end, and to 
 bind the two Societies together, by exchange of courteous 
 acts, their respective Secretaries conduct a correspondence 
 
 * The American Society was organized in July, 1867; the French in Febru- 
 ary, 1868. 
 
312 MEDICO-LEGAL SCIENCE. 
 
 on topics rleating to their common aims and labors, their, 
 publications* are interchanged, and each has conferred the 
 honor of membership upon some prominent member of 
 the other. 
 
 One important institution of the French Society has been 
 borrowed by its American sister, viz., a Permanent Commission, 
 to investigate and report upon any medico-legal question 
 that may be referred to it. The germ of this institution had 
 already indeed existed in our own Society, in the shape 
 of the Committee that so ably and conclusively reported on 
 the testimony in the first trial of Dr. Schceppe ; but it did 
 not assume a permanent shape until the formal organization, 
 after the French plan, of a Commission of Experts in the 
 Spring of 1876 ; so that, as I have said, the idea of perma- 
 nency must be credited to our sister Society in France. The 
 duties of this permanent commission are important, and in 
 their discharge, may prove valuable to the community at 
 large. It holds perpetual open court, so to speak, to hear, 
 examine and decide upon any intricate, doubtful or disputed 
 question in medical jurisprudence. The question may be 
 whether a given stain is blood or not ; whether a given mode 
 of death is suicidal, homicidal or accidental ; whether the 
 statements in evidence bear out the theory of sanity or in- 
 sanity ; whether other statements similarly delivered sustain 
 an indictment for malpractice. Be it what it may, there is 
 every likelihood that it will receive from such a commission 
 a full and judicial investigation, one, too, that must be wel- 
 come to every court of law. 
 
 Taking, now, a summary glance ot our subject, we may 
 divide the history of medical jurisprudence into two main 
 periods — the remote, or pre-scientific, and the recent, or 
 scientific, period. In the former we discern a lack of inde- 
 pendent investigation, not by any means astonishing, since 
 such was the characteristic of all knowledge before the rise 
 of the spirit of free inquiry. Statements of fact were rea- 
 
 * The latest publication received from the sister Society in France is a very 
 painstaken and able report, reviewing the first volume of our proceedings and 
 addresses, issued together in 1874. I shall have occasion to quote from this 
 report presently. 
 
MEDICO-LEGAL SCIENCE. 313 
 
 soned about at second hand, and accepted, if at all, on ' hear- 
 say testimony, chiefly, or entirely. The somewhat exuberent 
 growth of medico-legal literature in this period is marked by 
 subservience to authority, and is valuable mainly as a relic 
 of antiquity The later, or scientific, period of Medico-Legal 
 Science begins with the great discoveries in anatomy, physi- 
 ology and chemistry. Its distinguishing features are chiefly 
 three in number ; a copious literature based upon observa- 
 tion and experiment ; the institution of chairs for teaching 
 medical jurisprudence ; and the organization of societies for 
 the discussion of living medico-legal issues, the diffusion of 
 medico-legal knowledge and the bringing laws and court 
 rulings into harmony with advancing medical science.* Of 
 these three great features the United States is tolerably rich 
 in the first, but poor in the second ; whilst, as to the last, she 
 can claim to have founded the Medico-Legal Society of New 
 York, the first known to the world. 
 
 I trust that in the foregoing remarks it has been apparent 
 to you what great and salutary influence our Society has had 
 in the practical application of medico-legal knowledge. I 
 need lay no claim to gift of prophecy in foretelling that this 
 
 *The efforts of the New York Medico Legal Society tobrin£ about a harmony 
 between laws, court rulings and advancing medical science, are alluded to in 
 such appreciative terms by a recent able French writer, that I may be pardoned 
 for translating his remarks somewhat at length. After some allusions to the 
 community of origin and aim existing between the Medico-Legal Societies of 
 Paris and of New York, he continues as follows : "Our common origin is the 
 desire for social amelioration, our end is the advancement of science, and above 
 all of truth. The New York Society has well understood this, and of all works, 
 that which she has undertaken, of assisting justice in the pursuit of truth, is the 
 most difficult and embarrassing. To that Society it seemed a matter of prime 
 importance to prepare physicians for the duties of experts in criminal trials 
 She saw that however accomplished the medical man in his particular branch of 
 knowledge, his purely medjcal information contributed but a share to his influ- 
 ence as an expert. In her belief, the interest of justice and society demanded 
 that the jurisconsult should teach the medical man what he ought to know of juris- 
 prudence, and that for his part, the medical man should instruct the jurisconsult 
 in what he ought to know of medicine. (The italics are my own.) She solved 
 the problem of this mutual education by the very nature of her organization, 
 and so far as she has done this much she may lay claim to the honors of prior- 
 ity." And further on in the same paragraph he adds: " It must be evident to 
 everyone, that only by the co-ordinate union of the scientific and legal elements, 
 by a mutual understanding, complete and loyal, between magistrates, juri'ss and 
 physicians, can respect for truth and justice be upheld." Louis Penard, M.D. , 
 Compte Rendu des Memoirs de la Societe de Medicine Legale de New York. 
 Pars, 1876, 
 
314 MEDICO-LEGAL SCIENCE. 
 
 influence is destined to be widely extended in the future. In 
 one particular alone, not to mention others, may the efforts 
 of the Society lead to a desirable reform in this country. I 
 hold in my hand a table compiled by the courtesy of the 
 Bureau of Education, at Washington, in answer to some 
 questions of mine, afld the facts it reveals show a very unsat- 
 isfactory condition of medico-legal instruction in the United 
 States. Among the 54 medical schools, of all sects, from 
 which returns were obtained, only 40 give instruction in 
 medical jurisprudence ; and of this 40, no more than 9 pro- 
 vide instruction by full and regular courses of lectures, the 
 remaining 31 contenting themselves with occasional lectures 
 only, numbering from 4 to 20 in the year. This is an unsat- 
 isfactory announcement to make at the end of a century of 
 medical jurisprudence in this country, and may be, a chilling 
 termination to this address ; but the Medico-Legal Society 
 of New York, which has already done so much for medical 
 jurisprudence, may see in it a reason for renewed exertions 
 a stimulus to fresh efforts in the cause of a science for whose 
 welfare it has in a measure become responsible. 
 
George M. Beard, A. M., M. D. 
 
 Dr. Beard, the son of a Congregational rhinister, was 
 born in Montville, Conn., May 8th, 1839. He prepared for 
 college at Phillips Academy, Andover, Mass., and subse- 
 quently entered the academical department of Yale, graduat- 
 ing in 1862. In college he was prominent as a scholar, 
 writer and debater, received a prize for English composition, 
 and the Townsend premium, and was editor of the Yale 
 Literary Magazine. He received the degree of M. D. from 
 the College of Physicians and Surgeons in 1866, and shortly 
 after became associated with Dr. A. J. Rockwell in the 
 study of nervous diseases. Dr. Beard, in conjunction with 
 the writer, embodied the results of their experiments in a 
 series of articles in the New York Medical Record entitled 
 " The Medical Use of Electricity with Special Reference to 
 General Electrization as a Constitutional Tonic, etc." 
 
 These were extensively copied in foreign journals, both in 
 England and on the continent, and with other methods and 
 ideas, have long been incorporated into scientific literature 
 and, as has been conceded, mark epochs in this department 
 of science. In 1868 he translated from the German and 
 edited with an introduction, "Tobold's Chronic Diseases of 
 the Larynx," and in the following year he published a large 
 and popular work for the family entitled "Our Home Phy- 
 sician." In 187 1, two treatises called respectively "Eating 
 and Drinking " and " Stimulants and Narcotics;" in 1872, 
 in connection with the writer, he published an exhaustive 
 
GEORGE M. BEARD, A. M., M. D. 
 
 treatise on "Medical and Surgical Electricity;" in 1873 
 he published in ihe same manner a monograph entitled 
 "Clinical Researches in Electro-Surgery," and in 1874 
 a monograph on "Legal Responsibility ^ in Old Age" 
 based on the author's researches into the relation of 
 age to work. In the same year he founded a semi-annual 
 journal, "The Archives of Electrology and Neurology, and 
 also began the study of psychology and pathology of delu- 
 sions, explaining the performances of the Eddy brothers and 
 Brown, the mind reader ; in 1876, a work on " Hay Fever" 
 based on original researches and advocating the nerve theory 
 of that disease; in 1877 a monograph on "Scientific 
 Basis of Delusions," being a new theory of Trance and its 
 bearing on Human Testimony ; in 1880, a practical treatise 
 on " Neurasthenia ; " in 1S81, a popular work on "Seasick- 
 ness," in which he first advocated the bromide treatment, 
 and also in the same year a popular treatise on "American 
 Nervousness, its Causes and Consequence." During the last 
 year Mr. Herbert Spencer while in this country, in an after- 
 dinner speech which excited wide spread interest, repeated 
 many of the ideas first enunciated in this work. In a pam- 
 phlet termed a "Scientific Coincidence" written by Dr. 
 Beard and which was issued some days after his death atten- 
 tion is called to this singular circumstance. In 1882 he 
 published " Trance and Muscle Reading," and in the same 
 year a monograph entitled, "Psychology of the Salem 
 Witchcraft Excitement and its Practical Application to 
 events in our own time, including the cases of Guiteau and 
 Cadet Whittaker;" in 1883 a work on Sexual Neuresthema, 
 and in the same year a monograph entitled, "Medical Edu- 
 cation and the Medical Profession in Europe and America." 
 Dr. Beard not only gave much attention to psychology of 
 delusions, but he was the first to clearly and prominently 
 demonstrate that the facts of the phenomena of these delu- 
 sions, belong to psychology, and should be brought into 
 science exclusively by psychologists. Previously these 
 phenomena had been studied, so far as they had been studied 
 at all, by physicists, chemists, astronomers, general physiolo- 
 gists and psychologists. His doctrine was that delusions 
 
GEORGE M. BEARD, A. M., M. D. 
 
 were to be overcome not by direct attack, but by organizing 
 in science the phenomena that give rise to them. In his 
 work on " Psychology of Witchcraft " he htis given defini- 
 tions of religion, delusion, superstition and science, and has 
 explained their relations to each other In his works on 
 "Neuresthema" and ' American Nervousness," he has given 
 attention to facts and phenomena that had hitherto, with 
 some exceptions, been thought unworthy of scientific atten- 
 tion. 
 
 In the words of one who knew him well, there are "in 
 this great human caravan, keeping pace to the march of 
 time, three classes of workers ; first and by far the largest in 
 number, those who merely plod, and follow in routine 
 courses, or walk in circles; second, those who strive to make 
 these routine courses and ihese circles easier and straighter 
 by chipping off a little here and filling a little there, lessen- 
 ing the grade at this point, and increasing the momentum at 
 that ; and third, embracing a very small fraction of this 
 great multitude, those who are the advance workers who do 
 what is sometimes called "original work," who live beyond 
 or in advance of their time. 
 
 He early became a member of the Medico-Legal Society 
 of New York, taking from the outset an active interest in its 
 labors. He attended the Inaugural meeting in January, 
 1883, a short time before his death: He was one of the 
 founders of the National Association for the protection of 
 the Insane, and of the New York Society of Neurology and 
 Electrology. He read a paper before the Medico-Legal So- 
 ciety entitled " Legal Responsibility in Old Age, based on 
 Researches into the Relation of Age to Work," also one en- 
 titled " Problems of Insanity," another on "Hypnotism." 
 
 During the latter part of his life he gave much attention to 
 Medico-Legal studies, contributing much that is valuable to 
 forensic literature. 
 
 He was among the foremost alienists of our country, and 
 his reputation was wider extended, especially abroad, per- 
 haps, than that of any of his contemporaries of his years. 
 
 The work for which Dr. Beard was best fitted and most 
 peculiarly adapted, and in which, had he lived, he could 
 
GEORGE M. BEARD, A. M., M. D. 
 
 have been most useful, was doubtless that of lunacy reform. 
 
 It is questionable if any of our American alienists had 
 studied the subject more deeply and thoroughly than had Dr. 
 Beard. He had mastered the English system, both in its 
 legal and practical aspects, and was thoroughly familiar with 
 continental systems. 
 
 He recognized the changes needed at home in our laws 
 and asylums, and his death will be felt as a severe blow to 
 that body of thoughtful minds who are now engaged in the 
 consideration of the problems of this interesting question. 
 
 In no society, however, in this country, was his loss more 
 keenly felt than in the Medico-Legal Society of New York, 
 in the success of which he took the liveliest interest. 
 
 He was largely instrumental in inaugurating the Medico- 
 Legal Journal, to which he pledged the support of his in- 
 fluence and his pen — but his voice is hushed and his pen 
 laid aside forever. Although cut off in the prime of his 
 manhood he has left, in his printed works, an enduring 
 monument, Sic itur ad astra. a. j. r. 
 
A NEW THEORY of TRANCE 
 
 AND ITS 
 
 BEARINGS ON HUMAN TESTIMONY* 
 
 By GEORGE M. BEARD, M. D. 
 
 For ages there have been observed a group of symptoms 
 connected with the nervous system, which, under various 
 confusing and contradictory names, have been at once the 
 wonder of the masses, the refuge of delusions, the scandal of 
 law, and the opprobrium of science. Among the more or 
 less incorrect and meaningless terms that either superstition 
 or science has applied to these symptoms, I may specify as 
 especially prominent, somnambulism artificial and spontane- 
 ous, mesmerism, animal magnetism, hypnotism, Braidism- 
 catalepsy, ecstacy and biology. 
 
 You will agree with me — all thoughtful minds of our time 
 do agree — that the solution of the mystery suggested by these 
 vague and one-sided phrases, is one of the most important 
 problems of science ; since it is of interest, and of the high- 
 est moment, not for itself alone, but on account of its rela- 
 tions to physiology and pathology in general, to the philoso- 
 phy of popular delusions of all kinds and all ages, from the 
 Delphic oracles to Brown's mind reading — and, what is per 
 haps most important of all, on account of its bearings on the 
 principles of evidence, the estimate of human testimony 
 which we are to consider this evening. 
 
 It is with the conviction that the problem presented by this 
 
 *Read November 1st, 1876. 
 
316 A NEW THEORY OF TRANCE AND ITS 
 
 subject can be, and is substantially solved, that these intri- 
 cate and widely extending phenomena can be unified, har- 
 monized, reduced to a science, and brought under the rule 
 of law, that I have chosen trance as a subject for the present 
 address. 
 
 In using the word trance to include the real phenomena 
 represented or suggested by the above mentioned terms, I 
 am not guilty of introducing a new term — for it is indeed a 
 very old one — nor of wresting it from its original significa 
 lion, for it has always been popularly used in the sense in 
 which I here use it, although no one before me, so far as I 
 know, has given it a full and formal definition. 
 
 It is necessary to understand, at the beginning, that in 
 order to master the subject of trance, we must use deductive 
 as well as inductive reasoning — in other words, we must rea- 
 son from generals to particulars, drawing our conclusions 
 from principles already established, as well as from particu- 
 lars to generals. It is neeedful to insist on the validity of 
 deductive reasoning, for without it no progress can be made 
 in this branch of science ; without it, indeed, it is a useless 
 attempt to study subjects of this kind at all. 
 
 It was not long ago that an accomplished friend of mine, 
 a physician, publicly remarked that it seemed to him the 
 wiser course for scientific men to let these subjects alone, not 
 to attempt their solution. He based his objections, perhaps 
 unconsciously, on the fact of the impossibility of solving 
 these problems by the inductive method. 
 
 Those who share these views may be reminded that all the 
 sciences in their infancy, astronomy, physics, physiology, 
 and chemistry, have been opposed on substantially the same 
 ground; these things, it was claimed, cannot be understood 
 by the human mind ; therefore let us join ourselves to the 
 idols of our ignorance, and let them alone. Grand as have 
 been the results of the inductive method of investigation, as 
 organized by Bacon, it has not displaced, and never will dis- 
 place deductive reasoning — and it is a fact of vast encour- 
 agement for the future of human knowledge, that there is 
 now beginning to be a slow reaction in favor of a right use 
 of the thinking, as well as of the observing faculties in scien- 
 
BEARINGS ON HUMAN TESTIMONY. 317 
 
 tific research. Clear evidences of this reaction are found in 
 the writings of nearly all the leaders of scientific thought to- 
 day. Mr. Mill, in his logic, says truly that the progress of 
 the future must be made along the line of deductive reason- 
 ing ; and, quite recently, Haeckel, in his " History of Crea- 
 tion," has protested in most vigorous language, against what 
 I may call the tyranny of the senses. The success of the 
 inductive method has been so brilliant that we have lost our 
 heads ; we have louked so long at one side of the subject 
 that it has not seemed possible that it could have any other 
 side. With the triumph of the telegraph and railway con- 
 stantly before our eyes, as reminders of what the modern 
 world owes or thinks it owes to Bacon for inductive investi- 
 gation, we forget that, after all, the greatest contributions to 
 human knowledge have been largely the product of deduc- 
 tive reasoning. Newton's discovery of the law of gravitation 
 was a deduction, not an induction ; and, indeed, astronomy 
 itself is throughout a deductive science. 
 
 The Darwinian theory of natural selection, and, indeed, 
 the whole law of evolution, of which Darwinianism is but a 
 single factor, is simply an enormous deduction, which, 
 so far as it becomes accepted, must be regarded as a far 
 greater achievement than that of Newton's. Indeed, the 
 Baconian philosophy of induction is itself a deduction. 
 
 The objection may be pressed that deductive reasoning is 
 liable to error, and the oft-cited prediction of Lardner that 
 no steam vessel could ever cross the Atlantic, may be brought 
 to mind ; but all this is but to say that it is human to err, for 
 in all methods of seeking the truth, there maybe mistakes. 
 But if any comparison were to be made between the fallacies 
 of these two modes of reasoning, it would be found that where 
 deduction makes one blunder, induction makes a thousand ; 
 and for this reason, if for no other, that everybody can use, 
 and does use induction, not on)y in science, but in all the or- 
 dinary affairs of life, while deduction can be mastered only 
 by a few, since it requires, in all its higher phases, a power 
 of reasoning that is but rarely possessed or acquired. Diffi- 
 cult as it is to find those who can make correct scientific ob- 
 servations, it is incomparably more difficult to find those who 
 
3 1 8 A NEW THEORY OF TRANCE AND ITS 
 
 can make just scientific deductions. On this subject Buckle 
 remarks : " For one person who can think, there are at least a 
 hundred persons who can observe ; for an accurate observer 
 is no doubt rare, but an accurate thinker is far rarer." Liebig, 
 discussing the same subject, says . "Our attaching too high 
 a value to the mere fact is often a sign of a want of ideas." 
 
 So far as the senses are concerned, they deceive all of us 
 every hour and every moment. The delusion that the senses, 
 any one, or all of them, can be trusted, is, with the advance 
 of culture and the development of better notions of the prin- 
 ciples of evidence, fast dying out. With the man whose 
 mind is trained to rightconceptionsoftheworthandworthless- 
 ness of human testimony, seeing is not believing, but doubt- 
 ing; forwhatisallhuman science but a correcting of the errors, 
 and a supplementing of the defects of the senses. The sight is, 
 on the whole, the best of the senses, but in civilized lands 
 only fools trust it. The savage, casting his eyes upwards, 
 sees a blue arch filled with lights but a little way off and roll- 
 ing around the world ; the astronomer sitting in his study, 
 deduces that these lights are worlds millions of miles away, 
 and that the earth rolls around the sun. It is not the retina, 
 but the brain behind the retina, that really sees, or in 
 Goethe's language, the eye sees what it brings the means of 
 seeing. If any man wishes to blunder, let him but open his 
 eyes and believe what he thinks he sees. Indeed, the much- 
 lauded habit of exclusively trusting the senses, and of mak- 
 ing all knowledge a matter of induction, is not, as some be- 
 lieve, a result of the Baconian philosophy, but is rather a 
 slowly passing away survival of savagery. Every barbarian 
 is an imperfect Baconian. 
 
 The infinite errors that enter the brain through the doors 
 of the senses, can be, in a considerable degree, guarded 
 against, and reduced to a minimum, by the proper use of 
 the reasoning faculties. All experts in any branch of science, 
 or of art, consciously or unconsciously correct the defects 
 and uncertainties, and positive errors of the senses, by the 
 trained intellect made especially watchful by long study and 
 practice, in special lines of investigation. In all important 
 and difficult matters, therefore, the only testimony that is of 
 
BEARINGS ON HUMAN TESTIMONY. 3 19 
 
 any value is expert testimony ; if that cannot be obtained, 
 we have no way of knowing anything of the subject. 
 
 In the special topic under consideration, the truth is only 
 obtainable by experts and expertness. This most difficult 
 depertment, in its present state of development, is only mas- 
 tered after years of study, and on the basis of a thorough 
 knowledge of the physiology of the involuntary life. The 
 non-expert, in studying subjects of this kind, is very apt to 
 believe what he sees and, hears, or thinks he sees and hears, 
 and concludes and reports accordingly ; the expert, in the 
 presence of the same phenomena, asks and definitely an- 
 swers the question, whether the image on the retina is sub- 
 jective or objective ; whether he sees all or but a part of 
 what is needful to get the exact truth ; whether all things 
 that are seen are seen in their due relations as to time, space 
 and mass ; and he also tests the results thus sifted by the es- 
 tablished principles of deductive reasoning. 
 
 The theory of the nature of trance which I have to offer, 
 and which I now present for the first time, is that it is a func- 
 tional disease of the nervous system, in which the cerebral 
 activity is concentrated in some limited region of the brain 
 with suspension of the activity of the rest of the brain, and 
 consequent loss of volition. It is the prime requisite of a 
 scientific hypothesis that it should account for all the phe- 
 nomena embraced under the department to which it applies. 
 The hypothesis that trance is a morbid state, consisting in a 
 concentration of the cerebral force in some limited region of 
 the brain, the activity of other portions being meanwhile 
 suspended, seems, as I hope to be able to demonstrate, to ac- 
 count for all the real phenomena of this state, all its differ- 
 ent forms and stages. 
 
 Before bringing this theory to the test of accounting for 
 all the phenomena, a few general remarks on trance seem to 
 be necessary ; and all the more since the current notions on 
 this subject, among scientific men, and even among physiol- 
 ogists, are mostly crude, one-sided, and positively erro- 
 neous. 
 
 Trance, like other functional nervous diseases, may be in- 
 duced either physically or psychically ; that is, by influ- 
 
32° A NEW THEORY OF TRANCE AND ITS 
 
 ences that act on the nervous system, or on the mind ; more 
 frequently by the latter, sometimes by both combined. The 
 special exciting causes that may induce this state are, there- 
 fore, practically infinite. 
 
 Among the physical causes are injuries of the brain, the 
 exhaustion of protracted disease or of starvation, or of over 
 exertion, anaesthetics, alcohol and many drugs, and certain 
 cerebral diseases. Ordinary, sleep may act as an exciting 
 cause, as is illustrated in the somnambulistic form of trance- 
 Underthe psychical causes are included all conceivable influ- 
 ences whatsoever that may powerfully excite any emotion, 
 or group of emotions. The majority of the cases of trance 
 come under this head. 
 
 Trance may, for the sake of convenience of description, be 
 divided into four varieties: the spontaneous, the self-induced, 
 the emotional, and the intellectual trance. In strictness, these 
 varieties may, to a certain extent include each other, and in 
 using these terms, this fact should be borne in mind. Thus, 
 the intellectual trance is spontaneous, although the majority 
 of the cases of spontaneous trance are not also intellectual. 
 The self-induced trance may be partly emotional, but it is not . 
 entirely so. 
 
 A typical form of spontaneous trance is natural somnam- 
 bulism, or sleep-walking ; a term which is vaguely used by 
 many writers to include all phases of trance, excepting those 
 which are produced by performances of mesmerizers, which 
 are called cases of artificial somnambulism. In sleep-walking, 
 the cerebrel activity, which, during ordinary sleep is more or 
 less lowered throughout the brain, is suddenly concentrated 
 in some limited region ; the cerebral equilibrium being spon- , 
 taneously disturbed through the subjective action of dreams, 
 the subject, under the dominion of this restricted region of 
 the brain, the activity of the rest of the brain being sus- 
 pended, runs or walks about like an automaton, with exalta- 
 tion of the sense of touch often, and of the co-ordinating ; 
 power, as is shown in their capacity for balancing in difficult 
 and dangerous positions, and climbing on heights where in 
 the normal state he would not venture. Other senses may 
 be sealed entirely, as in other forms of trance. 
 
BEARINGS ON HUMAN TESTIMONY. 32 I 
 
 Under self-induced trance are comprised those cases where 
 the subject can bring himself into this state at will, either 
 suddenly or gradually. Of such subjects it may be said that 
 they will to lose their wills ; or it would be nearer the truth 
 to say that they voluntarily put themselves under influences 
 where the involuntary life becomes supreme. 
 
 All genuine trance preachers and speakers — and many of 
 them are genuine — represent the self-induced variety. I 
 have studied the case of a famous trance preacher, who cells 
 me — and his statements are in accordance with the laws of 
 trance, although he does not at all understand the I rue phil- 
 osophy of his own experience — that when he began to go 
 into this state, the first sympiom was only a thrill, or electric 
 shock through his arm, then with more practice the whole 
 arm became convulsed, then the whole body, until in time 
 exaltation of the faculties of imagination, and of language, 
 were developed, and he became a most successful performer 
 before audiences. 
 
 The current slang of spiritualistic circles in which medi- 
 ums are described ns " fully developed," or "partially de- 
 veloped," or as "developing," has this basis of truth in it 
 that it oftentimes needs practice to acquire the habit of 
 readily, and at will, entering the trance. 
 
 There is such a thing as the habit of being entranced. 
 After one has been a number of times thrown into this state 
 by any procedure or influence— whatever it may be — he seems 
 to grow more and more susceptible to the influence, of that 
 special procedure or influence, and will be entranced by it 
 quite likely, while many other equally good or better meth- 
 ods fail. 
 
 Some have a habit of falling into a trance spontaneously at 
 regular intervals ; there is, indeed, in this disease, the same 
 periodicity oftentimes that has longbeen observed in neuralgia. 
 Somnambulism, or sleep-walking, is a form of trance that 
 may become periodic. 
 
 One of the most noted writers on spiritualism has been ac- 
 customed to induce the trance by starving himself, or, at 
 least, by living very low. This is a good method, but it is 
 slow and painful, and may be harmful ; for the brain, through 
 
322 A NEW THEORY OF TRANCE AND ITS 
 
 want of just nutrition, gets into a chronic pathological state, 
 when its equilibrium is readily upset — in nautical language 
 it is thrown off the centre, the imagination becomes abnor- 
 mally active, and the subject is oftentimes borne to heaven 
 where he sees and hears many wonderful and beautiful 
 things, and reports accordingly. The visions of Swedenborg, 
 and of Mahomet, possibly — for it is difficult to obtain any 
 detailed information in regard to the heroes of distant ages 
 that will bear scientific scrutiny — as well as the ecstacies of 
 many of the mediaeval saints and recluses, and the bright 
 experiences of the dying everywhere, find here their pathor 
 logical explanation. 
 
 Under emotional trance are included cases that are caused 
 by the so-called mesmeric performances, or through the feel- 
 ings of fear, wonder, reverence and expectation, however ex- 
 cited. The majority of the cases of trance come under this 
 head; for every one is endowed with these emotions, and in 
 the greater part of the human race they are the controlling 
 elements in character— they are especially active and irritable 
 in the young, and in those who have passed out of childhood, 
 and have not yet reached full manhood or womanhood ; they 
 are present, however, in force at all ages, (for in this respect 
 all men are women and all women are children), and in the 
 strongest and most intellectual minds they are apt to be in 
 constant and usually successful rebellion against the author- 
 ity of reason — any influences, therefore, that excite any, or 
 all, of these emotions, may be regarded as exciting causes of 
 trance. 
 
 The emotions through which trance is most likely to be ex- 
 cited, are fear, reverence, wonder, and expectation. Among 
 the numberless conditions or circumstances, that are liable to 
 excite these emotions, it is needful to specify but a few that 
 are of a representative character, are most familiar and most 
 readily verified, such as standing on a height, or on the track 
 as a train is approaching, or a sudden alarm of fire in a 
 crowded building ; the imposing impression made by a pre- 
 tense of supernatural power, as when it is claimed that the 
 dead are raised, or that departed spirits are communicating 
 with their friends, or that the sick are instantly healed, and 
 
BEARINGS ON HUMAN TESTIMONY. 323 
 
 similar miracles ; and, lastly, and of least importance, the 
 performances of so-called mesmerizers or hypnotizers, as 
 passes to and fro, manipulations, concentrating the attention 
 on some fixed point or bright object, as a button or nail in 
 the wall, drinking of water believed to be magnetized, and 
 so forth. 
 
 The one fact common to all these conditions is, that they 
 exert some one or several emotions — fear, or wonder, or ex- 
 pectation — to such a degree that the actfvity of the rest of 
 the brain is suspended while these emotions are abnormally 
 active, and consequently the will loses control, and the sub- 
 ject acts automatically in response to external or internal 
 suggestion, doing the very things he wishes to avoid doing, 
 and unable to do what he most desires. If o.n the edge of a 
 height, he becomes dizzy, and may fall ; if fearful of being 
 crushed by the approaching train, he cannot move a step ; if 
 seated in a seance with supposed mediums, he sees and hears 
 whatever he is told to see and hear, as flames, or light, or 
 sound, and recognizes the faces of departed dear ones in a 
 rubber mask, a pocket-handkerchief, or in a drop of water. 
 
 The almost universally held belief that the mesmeric form 
 of emotional trance is caused by some force or fluid (animal 
 magnetism) passing from the body of the operator into the 
 body of the subject, is as far from the truth as any view on 
 any subject possibly can be ; and the fact that this view is 
 held not by the masses alone, but probably by ninety-nine 
 out of a hundred physicians and scientists, shows how one- 
 sidedly this whole subject of trance has been studied. 
 
 In producing this form of trance, indeed, the presence of 
 the operator or magnetizer, so-called, is not needed at all ; 
 any influence or circumstance that the subject expects will 
 put him into the trance is liable to produce that effect, par- 
 ticularly if, as is usually the case, the emotions of wonder 
 and fear are at the same time acted upon. Subjects in the mes- 
 meric trance are under the control of the exiernal sugges- 
 tions of the operator, as expressed by voice or manner (not 
 of his silent, unexpressed will, as some imagine), because 
 they go into the state with that expectation ; otherwise the 
 operator has no power over him. But there is no need of 
 
324 A NEW THEORY OF TRANCE AND ITS 
 
 any operator at all. Not much less erroneous and one-sided 
 is the conclusion of Braid, who, in some respects, has studied 
 the subject with intelligence, that fatigue of the eyes and 
 power of attention by looking upwaid intently at some 
 bright object — as a key or pencil — is specially important.* 
 The fact is that it makes no difference as such what you do 
 to produce mesmeric trance ; it makes no difference whodoes 
 it ; it is a subjective matter entirely, and all depends upon the 
 emotions of the subject, what he fears, expects, or wonders 
 at. True enough ih:it a professor of vast fame succeeds in a 
 greater proportion of cases, but that is because the subject 
 expects great things of him, and all the needful emotions are 
 created in his presence. The operator may be an absolute 
 ninny; but if the subject believes in him, that is enough. 
 He may make the passes up or down, or crossways, with his 
 fingers, or with his hands, or he may make no passes at all. 
 he may sit perfectly still ; his presence is not necessary ; he 
 may be a thousand miles away ; he may have been dead and 
 buried a thousand years ; he may never have existed ; if the 
 subject strongly believes he exists, or that he is raised to life 
 and expects or fears that he may have the power to put him 
 into a trance, entranced he will become Let any one with 
 some reputation as a mesmeiizer request the audience to 
 stand up, stating also that in a few moments they will be 
 mesmerized; and in ten minutes let him permit those who can 
 to sit down, and it will be found that perhaps one out of ten 
 cannot sit down ; they are thoroughly entranced ; fixed to the 
 floor, and are ready to do whatever they are told to do. If 
 the statue of the mesmerizer had been on the platform in- 
 stead of the mesmerizer himself, and if it could have spoken, 
 and the audience could have believed in it, the results would 
 have been just the same One famous operator used to 
 simply say to his subjects, " Sleep," and they passed into the 
 trance. 
 
 In one of the most successful experiments of this kind that 
 
 * These attempts to induce trance with keys, pencils, and so forth, will fail 
 almost always, even with persons psychically and physically predisposed to go 
 into that state, if the subject does not know or suspect that something of the 
 kind is to happen. I have proved this repeatedly by a thorough series of ex- 
 periments with the patients of Demilt Dispensary. 
 
BEARINGS ON HUMAN TESTIMONY 325 
 
 I ever witnessed, a number of individuals were seated side by- 
 side on a platform before an audience, and were simply 
 directed to put one hand on the wrist of the other, close their 
 eyes, and control their thoughts. In fifteen minutes at least 
 one-third of those who tried the experiment were en- 
 tranced. 
 
 To intellectual trance belong the extreme cases of what are 
 commonly characterized as absent-mindedness ; a state which 
 is quite distinct from simple mental attention. The popular 
 term absent-minded, as applied to those who become so ab- 
 sorbed in thought that they are unconscious of what is going 
 on around them, and perhaps respond automatically to ex- 
 ternal suggestions or influences, is, in view of the theory of 
 trance here advocated, a happy one ; since it expresses, with 
 partial correctness, the real state of the brain during an at- 
 tack of that kind. A large portion of the brain is active, and 
 until aroused, is insensible to surroundings, and thus re- 
 sponds mechanically. The biographies of illnsti ious think- 
 ers are filled with instances, some of which are probably cor- 
 rect, of this form of trance. Thus Walter Bagehot says of 
 Adam Smith, the great political economist, that his absence 
 of mind was amazing. On one occasion, having to sign his 
 name to an official document, he produced, not his own sig- 
 nature, but an elaborate imitation of the signature of the 
 person who signed before him ; on another occasion, a senti- 
 nal on duty having saluted him in military fashion, he 
 astounded and offended the man by acknowledging it with a 
 copy of the same gestures. 
 
 In these intellectual trances, great thoughts have been 
 without doubt, evolved, that would have been impossible to 
 the brain in its normal state. 
 
 The hypothesis I have here presented must, if true, account 
 for the actual phenomena of trance in all its form and stages 
 however induced. If there be a single fact of trance that is 
 positively inconsistent withtbjs hypothesis, then the hypothe- 
 sis lias no value. It can be shown by this hypothesis all the 
 facts of all forms and phases of trance are explained, unified 
 and made harmonious ; nay, more, that only by this hypothe- 
 
3*6 A NEW THEORY OF TRANCE AND ITS 
 
 sis, is it possible to give any unity or solidarity to the phe- 
 nomena of this state. 
 
 First. This hypothesis accounts for the loss of the con- 
 trol of the will and the automatism of trance, which is the 
 first observed, and most distinguishing feature. 
 
 In his normal state man is, to say the least, nine-tenths a 
 machine. As I have elsewhere said, the involuntary life — 
 that which acts without the will, or in spite of the will — is the 
 chief fact in human life, and in human history. It is the side 
 of humanity that in some most important relations has been 
 least studied, and in which are to be made very largely the 
 physiological discoveries, and the advances of the future. 
 
 Comparing life to a wheel, as Dr. S. S. Laws has done, the 
 voluntary functions may represent the narrow hub, while the 
 involuntary functions are represented by all the area between 
 the hub and the periphery. In this little inner circle lies all 
 human responsibility and all the vast influence ui punish- 
 ment or reward ; in all the rest of his functions, man is as 
 much an automaton as a tree or a flower. Now, in the trance, 
 this little inner circle, of what we call volition, is encroached 
 upon by the involuntary life, and in the deeper stages is en- 
 tirely displaced by it. The fully entranced person has no 
 will ; what he wishes to do he cannot do ; what he wishes 
 not to do he does ; he is at the mercy of an external or inter- 
 nal suggestions. Every one who has had the nightmare 
 knows what this feeling of powerlessness is, for the more he 
 tries to run the firmer he sticks. A mesmerized subject,when 
 he tries to do anything against the command of the operator 
 does just the opposite. 
 
 This hypothesis of the concentration of the cerebral activ- 
 ity in a limited region, accounts for the displacement of the 
 will in this way. The will may be defined as the co-ordinated 
 activity of all the faculties of the mind, including, in gen- 
 eral terms, the perception, the emotions and the intellect 
 Cerebro physiologists will agree — all questions of phrenology 
 or cranioscopy,or minute specializations of functions aside — 
 that the brain does not act as a unit, but that different parts 
 are the organs of different faculties. When the cerebral ac- 
 tivity is harmoniously diffused, as in the normal state, 
 
BEARINGS ON HUMAN TESTIMONY 
 
 327 
 
 through all the different regions, the man is said to be under 
 the control of the will. When the cerebrel activity is con- 
 centrated in some limited region of the brain— say that de- 
 voted to the emotions, or that devoted to the intellect, the 
 activity of the rest of the brain being suspended for the 
 time — the man would have no will ; he would be under the 
 control of that groupof faculties ; he would be a conscious 
 living automaton, as a fully-entranced person always is. 
 
 Secondly. The hypothesis explains why trance is an ab- 
 normal state. It shows that it must be a morbid pathological 
 condition, and also shows in what this morbidness consists. 
 The man whose mental faculties are mostly suspended, who 
 has no will, but is under the control of some single faculty, 
 is surely in an abnormal state, and in this respect the popu- 
 lar idea is correct. It is a functional disturbance relating 
 only to circulation and innervation, and not causing struc- 
 tural changes, although it may be caused by structural cere- 
 bral diseases, and not ordinarily permanently affecting the 
 health in other respects. The liability to trance, like the 
 liability to various other functional disturbances of the nerv- 
 ous system, does not conflict with general good health and 
 longevity. 
 
 If it seem a doubtful thing to class absent-mindedness, or 
 a state of being "frightened to death" under diseases, it 
 must be considered that, strictly speaking, there is no arith- 
 metically defined line between health and disease, but that, 
 as Allbutt has well observed, pathology is but the shady side 
 of physiology. 
 
 Thirdly. This hypothesis explains the difference between 
 trance and ordinary sleep, which in some respects it so much 
 resembles Sleep is a normal state, a partial cessation of the 
 activity of all the faculties, a lowering of the activity of all 
 the regions, but not a suspension of the activity of any ex- 
 cept the will, which, as we have seen, is simply a co-ordina- 
 ted action of the faculties. When a person who is sleeping 
 gets up and walks in his sleep in other words, passes into 
 the somnambulistic form of trance, the change that takes 
 place in the brain is this : while sleeping, the activity of all 
 the faculties was lowered ; on going into trance the activity 
 
328 A NEW FORM OF TRANCE AND ITS 
 
 of all the faculties becomes suspended, and the entiie cere- 
 bral activity is concentrated in some one faculty, or limited 
 group of faculties. 
 
 Trance differs from ordinary sleep in the following 
 features : 
 
 i. The performances of the trance are logical, coherent, 
 and consistent ; while dreams are filled with extravagances 
 and absurdities, which to the sleeper seem entirely proper. 
 By the hypothesis of trance here presented, we should ex- 
 pect that the dreams acted while in that state, however ex- 
 alted they might be, would be restricted and coherent, for 
 they must arise in a limited region of the brain, and are not 
 like the dreams of ordinary sleep, the scattered and confused 
 products of all parts of the brain 
 
 2. In trance some of the senses may be perfectly sealed. 
 The loudest noises are not heard, the most fragrant odors are 
 not observed, and there is no power of ta-ue. While some of 
 the senses are thus utterly closed, others may be greatly ex- 
 alted. On the other hand, the soundest sleepers are awak- 
 ened by loud noises, or by sufficiently iiritating the sensitive 
 nerves. This sealing of some of the senses is perfectly clear, 
 if we allow certain regions of the brain to be entirely in- 
 active. In sound sleep all regions of the brain are active, 
 although far less so than in the waking state, but in no 
 region is there complete suspension of activity. The expla- 
 nation of the exaltation of the faculties will be given subse- 
 quently. 
 
 3. Trance subjects are capable of responding to sugges- 
 tions offered by a second party, or from any external source, 
 and become consciously obedient to those suggestions. 
 Sleepers present no such peculiarity; they respond to external 
 suggestions addressed to the senses, but not consciously or 
 coherently. The entranced person, according to this hy- 
 pothesis, is a living, active personality, more active in cer- 
 tain directions than when in the normal state ; and yet he is 
 only a fraction of his normal self; consequently he is, or 
 may he at the mercy of any external suggestion that is 
 offered. He may not be able to resist the external sugges- 
 tion, as of the so-called mesmerizer, for example, but he re- 
 
BEARINGS ON HUMAN TESTIMONY. 329 
 
 sponds consciously and consistently through that portion of 
 the brain that is active, and without coming out of the trance. 
 If one in ordinary sleep becomes fully conscious so as to re- 
 spond intelligently to external suggestion, he wakes up. 
 
 4. In some forms of trance there may be divided or 
 double consciousness. The subject, on coming out of the 
 trance, has no recollection of his experience while in it. On 
 again entering the trance, he resumes the experience of the 
 previous attack where it left off, as though no active life had 
 intervened. If he have a habit of entering into the trance 
 at certain times, he really leads two quite distinct lives. In 
 sleep there is no such continuity of existence, from one nap 
 to another. The explanation of double consciousness is re- 
 ferred to under another head. 
 
 In strictness, trance is not sleep at all; it is rather another 
 form of waking life, over which the will has little or no in- 
 fluence. It does not rest one, rather it is exhausting, at least 
 in some of its phases, and with reason, for the mental and 
 physical functions are oftentimes exalted. 
 
 Fourthly. This hypothesis explains the phenomenon of 
 dual life and double consciousness, which has been regarded 
 as one of the greatest and most inexplicable mysteries of 
 trance. 
 
 In trance — even in the most profound instances ever ob- 
 served — there is probably always consciousness at the time, 
 but it is not always or usually remembered consciousness. 
 On awaking, as on awaking from ordinary sleep, the dreams 
 that may have been active and numberless, fade as a cloud ; 
 possibly not even a glimpse of them may be caught and 
 held before the mind long enough to become a permanent 
 and recollectible impression during the normal state. But 
 on resuming the trance state, the exalted functional activity 
 of the region of the brain in which the cerebral force is con- 
 centrated, is able to bring these impressions of the previous 
 attack of trance, forgotten during the intervening normal 
 state to consciousness, and thus the subject carries on an 
 independent trance life, just as though there had been no 
 intervening normal state. On returning to the normal state 
 the cerebral force being again diffused through the whole 
 
33<3 A NEW THEORY OF TRANCE AND ITS 
 
 brain, is insufficient to enable the subject to recall the ex- 
 perience of the trance, but quite sufficient to enable him to 
 recall the experiences of his previous normal state. Thus 
 he leads two lives— the normal life and the trance life — and 
 they are independent of each other. 
 
 That very great excitements, or unusual experiences or 
 circumstances of any kind, may bring to consciousness im- 
 pressions supposed to be forgotten, is illustrated in the his- 
 tory of every person at all susceptible ; even a little trip in 
 the country, a walk in the woods, a sea voyage, may have 
 this effect in a most interesting way. Extreme illustrations 
 are the well-known experiences of the drowning, or of those 
 in great peril of any kind. A physician at one time under 
 my professional care, told me that he was once thrown in 
 his carriage off a high bridge. In the short interval between 
 leaving the bridge and reaching the ground beneath, for- 
 gotten events of his life rushed before him, as in the case of 
 drowning men. 
 
 It would also be consistent with this hypothesis, if the 
 subject in the trance state should recall not only previous 
 attacks of trance, but also the general fact of having been in 
 the normal state ; for in the normal state the whole brain is 
 active, and in the trance state that portion in which the 
 activity is concentrated would be able to bring to conscious- 
 ness the acts of the normal life in which that same portion 
 of the brain must have participated. The case of Felida X., 
 recently reported by Dr. Azam, of Bordeaux, France, ap- 
 pears to have been of this character.* In this case the first 
 attacks appeared in the fifteenth year, and at first lasted for 
 but ten or fifteen minutes. The first year, but about one- 
 tenth of her life was passed in these trance attacks ; af- 
 ter the lapse of sixteen years her life was about equally 
 divided between trance and health, until finally the former 
 encroached on the latter, until she passed nearly all the 
 time in trance. Through all these years of dual existence 
 she always forgets, during her normal life, the experiences 
 
 * A. translation by Dr. Tucker of Dr. Azam^s report, appeared in the Jour- 
 nal of Nervous and Mental Disease, for October, 1876. 
 
BEARINGS ON HUMAN TESTIMONY. 33 1 
 
 of the trance ; nothing seems to be competent to bring 
 them into consciousness, but the concentrated and exalted 
 activity of the trance itself. 
 
 The case of Miss Reynolds, of Pennsylvania, the details of 
 which were published in i860, was a type of this feature of 
 trance. On coming out of her first attack, which was at the 
 age of eighteen, she forgot all about her former life, and she 
 had no consciousness of previous existence ; she did not 
 know her father, or mother, her brother or her sister. After 
 five weeks she fully recovered her normal state, and with it 
 her memory of her life previous to the attack of trance, but 
 not of the trance itself. For years she alternated between 
 trance and health, leading two distinct lives. In trance she 
 was gay and lively, full of fun and fancy, and fond of social 
 life ; in the healthy state she was sedate and pensive, almost 
 to melancholy, slow, though sensible in her intellectual 
 operations and apparently destitute of imagination. 
 
 In these cases of dual life the trance life is the most bril- 
 liant and active in certain features, as by this hpothesis it 
 naturally would be. In a case under the observation of the 
 late Dr. J. R. Mitchell, a young girl in trance life was quick, 
 energetic, and witty, and vivacious ; in her normal life she 
 was slow, indolent and querulous. 
 
 Fifthly. The hypothesis explains the difference between 
 the deeper stages of trance and death, with which trance is 
 sometimes confounded. 
 
 With this hypothesis of the pathology of trance before my 
 mind, I have been accustomed to illustrate the difference be- 
 tween ordinary sleep trance and death, by pointing to a 
 chandelier of gas-burners. When all the burners of the 
 the chandelier are fully lighted, that is,, the normal waking 
 state ; when all of the burners are turned down low, but not 
 turned out entirely, as usually is the case in public halls, be- 
 fore the opening of entertainments, that is ordinary sleep ; 
 if I turn out entirely all the burners except one, and that 
 one, as often happens, flames all the more brightly from in- 
 creased pressure, that is trance ; if all the burners are turned 
 out entirely and permanently, that is death. The only hold 
 on life, which the deeply entranced person has, is through 
 
3$2 A NEW THEORY OF TRANCE AND ITS 
 
 the activity of a limited region of the brain, through which 
 feeble movements of the heart are sustained, the body being, 
 in other respects, motionless. The popular belief that 
 deeply entranced persons are liable to be buried alive is 
 correct, but, fortunately, mistakes of this kind occur but 
 rarely. 
 
 One person, it is said, was laid out to be buried, all the 
 preparations for the funeral having been made, of which he 
 was fully conscious, and yet he could not at first speak, or 
 cry, or wake, or move. By a desperate effort at the last 
 moment, he succeeded in slightly moving one of his thumbs; 
 the movement was observed and he was saved, and in time 
 came out of his trance. 
 
 In the famous case of the late Rev. William Tennent, of 
 New Jersey, a severe illness — some form of fever — was fol- 
 lowed by profound trance, which so thoroughly simulated 
 death that the time for his funeral was appointed, and the 
 people were gathered in attendance. At this juncture, his 
 physician, who was also a special friend, insisted that he 
 should not be buried at that time, because a tremor in the 
 flesh, which had been observed when the body was laid out, 
 still continued. A brother of Mr. Tennant became impatient 
 at this suggestion, exclaiming: "What, a man not dead who 
 is cold and stiff as a stake!" The suggestion of the phy- 
 sician, however, prevailed, another day for the funeral was 
 appointed, and the people went away. For three days and 
 three nights the doctor worked over his patient, trying, 
 if possible, to find some other symptom of life than the 
 mere tremor in the flesh, but failed. Again the friends ap- 
 peared at the hour assigned for the funeral, and again the 
 physician plead for time ; at first for an hour, then for a 
 half an hour, and then for a quarter of an hour. At the last 
 moment Mr. Tennent opened his eyes. His mouth was pried 
 open, and through a quill liquid nourishment was conveyed 
 to his stomach, and by degrees the patient recovered ; but at 
 first he could not write nor read, and was only able to pro- 
 nounce monosyllables. It was a considerable time — more 
 than a year — before he gained the recollection of his past 
 life, and his acquirements were fullyrestored to him. During 
 
BEARINGS ON HUMAN TESTIMONY. 333 
 
 his slow recovery he took lessons in reading and writing, as 
 in his childhood. It is stated by his biographer that the re- 
 turn of his memory was marked by the sensation of a sudden 
 shock in his head, as he was reciting Cornelius Nepos. He 
 clapped his hand to his head, and then it seemed to him 
 that he had read that book before; the subsequent return of 
 his recollection of his past life, though gradual, was perfect. 
 
 After his recovery, Mr. Tennent stated that the three days 
 in which he had appeared lifeless seemed to him not more 
 than ten or twenty minutes; and during that time he seemed 
 to be transported, under the guidance of a superior indi- 
 vidual, to heaven, where he saw an innumerable host of 
 happy beings surrounding an "Ineffable Glory;" he was 
 able to hear their songs and their hallelujahs, and he was 
 conscious of joy unutterable.* 
 
 In cases of this kind the heart probably beats very feebly, 
 and not always with sufficient force to be detected by ordi- 
 nary auscultators. 
 
 Rosenthal, of Vienna, records a case of trance in an hys- 
 terical woman. She was declared dead by her physician. 
 When Rosenthal saw her the skin was pale and cold, the 
 pupils contracted and not sensitive to light, no pulse could 
 be detected, and there was relaxation of the extremities. 
 Melting sealing-wax, dropped on the surface, caused no re- 
 flex movements. When a mirrorwas held before the mouth 
 no moisture appeared. It was not possible to hear any 
 respiratory murmurs, but in the cardiac region a feeble 
 intermittent sound could be just detected on auscultation. 
 The patient had been apparently dead for thirty-two hours. 
 On examining the patient with the faradic current of elec- 
 tricity, Rosenthal found that the muscles of the face and the 
 extremities contracted. After twelve hours of faradization, 
 she recovered. Two years afterwards she was alive and well, 
 and told Rosenthal that about the commencement of the 
 attack she knew nothing, but that afterwards she heard 
 people talk about her death, but she was powerless to help 
 herself. 
 
 * Life of Rev. William Tennent. New York, 1868. 
 
334 A NEW THEORY OF TRANCE AND ITS 
 
 Sixthly. This hypothesis explains the exaltation of some 
 of the physical and mental faculties in trance, and depres- 
 sion of others 
 
 The exaltation of the physical and psychical faculties in 
 trance cannot be questioned, but is readily demonstrated ; 
 and by this hypothesis receives an explanation that is both 
 lucid and complete. 
 
 Representing, for the sake of comparison, the quantity of 
 cerebral force in all parts of the brain by one hundred ; if 
 the activity of three-fourths of the brain is suspended, then 
 the remaining one-fourth may be four fold more active than 
 when in the normal state. That there should be such a con- 
 centration of cerebral force in a limited range of faculties, 
 is in harmony with every day observed facts. Thus the in- 
 tellect increases in vigor in any direction under exercise up 
 to a certain point, and through over exercise becomes fa- 
 tigued. In the brain are the centres of thought, of muscular 
 motion, and of general and special sense. It would follow, 
 therefore, that some one or several of the senses, or some 
 one or several of the mental faculties, or some one or several 
 groups of muscles might be exalted in activity, with entire 
 suspension of the activity of other senses, faculties and 
 muscles, according to the region of the brain in which the 
 concentration of activity takes place. There is, therefore, no 
 mystery in the frequently observed, though sometimes dis- 
 puted fact, that entranced subjects can raise with ease 
 weights which in their normal state they are unable to move. 
 Mesmerized subjects sometimes exhibit this power. Persons 
 entranced through fear, as by an alarm of fire, have been 
 known to take up a stove and carry it out of the house ; the 
 next day they cannot, to save their lives, carry back that 
 stove. The co-ordinating or balancing power may be so 
 much exalted in somnambulists that they can climb without 
 harm in most dangerous places. A case in point is related 
 by Dr. Brown-Sequard, of a lady in Paris, who, every Sunday, 
 at ten o'clock, was seized with ecstatic trance ; and during 
 the attack would get on a bed, put her toes on the edge, 
 take an attitude of prayer, and offer supplications to the 
 Virgin Mary. In this position, impossible to any one in a 
 
BEARINGS ON HUMAN TESTIMONY. 335 
 
 waking state, she would stay for a long time, fixed as a 
 statue, her chest moving, her heart beating, and her lips 
 uttering sounds, but the rest of the body absolutely still. 
 The exaltation of the time-telling power — which sometimes 
 passes for second sight — has the same explanation as the 
 exaltation of other faculties. Likewise the nerves of general 
 and special sense are all liable to be greatly exalted in this 
 state ; the feeblest whisper in a distant room may be readily 
 heard, and one can read by a dimmer light than is usually 
 needed. The sense of touch may be so delicate that when 
 the sense of sight is sealed, the subject can find his way from 
 room to room without injury; and it is claimed may, in some 
 cases, recognize the presence of another person near at hand, 
 by the temperature alone, even where there is no physical 
 contact. 
 
 These exaltations of the normal senses are the bases of 
 many of the popular and professional delusions relating to 
 "second sight," "clairvoyance," "thought reading," and the 
 like. By this hypothesis also any of the mental faculties 
 should be liable to be exalted. Observation shows that not 
 only the imagination, but the reasoning faculty and com- 
 mand of language are oftentimes greatly enlivened in their 
 activity in this state, as the performances of trance preachers 
 illustrate. Weak minded men and women, who in the nor- 
 mal state think little and say less, are sometimes able, when 
 entranced, to speak continuously, and almost if not quite 
 eloquently, and with slight apparent effort. While there 
 has been much exaggeration of the originality and value of 
 these trance speeches, yet it can not be denied that they are, 
 with all their wildness of fancy and repetition, and frequent 
 senselessness, far beyond the capacity of the same persons 
 when not entranced. On returning to the normal state 
 they may be utterly stupid or commonplace ; their cerebral 
 force, when diffused through the whole brain, is unequal to 
 even rapid and sustained small talk. 
 
 The converse of exaltation, depression of some of the 
 senses and faculties of the mind, directly follows from this 
 hypothesis of concentration of cerebral activity; those senses 
 and faculties that belong to the entirely inactive regions of 
 
33^ A NEW THEORY OF TRANCE AND ITS 
 
 the brain, must be for the time practically dead, as is found 
 to be the case in some forms of trance. Thus the sealing of 
 some of the special senses and general anaesthesia, making 
 it possible to perform without causing pain certain surgical 
 operations, are accounted for. 
 
 Seventhly. This hypothesis explains all the familiar 
 physical symptoms of trance, such as flushing of the face, 
 fixity of position, sighing respiration, accelerated pulse, 
 involuntary convulsive movements, and marvellous and 
 numberless hysteroid sensations. 
 
 The effects of trance on the pulse and respiration, and on 
 the circulation in general, are what would be expected from 
 the known inter-dependence of mind and body. The quite 
 recently established fact of the existence of definite centers 
 or muscular motion in the brain, however the fact may be 
 interpreted, is of great significance in its bearings on this 
 subject, since it shows clearly why convulsions so frequently 
 accompany trance. The aphorism that I have elsewhere laid 
 down, that when we think we move, was based on our knowl- 
 edge of the existence of these centers of muscular motion, 
 in that portion of the surface of the brain, that is regarded 
 as the seat of some of the mental faculties, and was first 
 suggested to me while repeating the experiments of Hitzig 
 and Ferrier in the electrical irritation of the brains of 
 animals. 
 
 These convulsive movements in trance, as in hysteria and 
 epilepsy, belong to the lighter phases, or to the coming in 
 and going out of the attack ; in the deeper stages the muscles 
 are motionless. 
 
 Whether the entranced subject walks about or remains 
 fixed and immovable, probably depends on the nature of the 
 dream that arises in the portion of the brain the activity of 
 which is exalted. 
 
 The vague nervous sensations that often accompany the 
 early and lighter phases of trance sensations, as of electric 
 shocks, of heat or of cold, of crawling or creeping, or 
 twitching, are in harmony with what the neurologist every 
 day observes in various temperaments where the brain in 
 whole, or in part, is excited. In very many persons the 
 
BEARINGS ON HUMAN TESTIMONY. 337 
 
 simple expectation, that their symptoms are to appear, is 
 sufficient to bring them in full force. 
 
 Eighthly. This hypothesis accounts for the illusions 
 and hallucinations of trance. 
 
 Illusions, delusions, and hallucinations are, as is estab- 
 lished, the products of cerebral activity, and are frequently 
 the symptoms of some abnormal state of the brain. There 
 is no proof that any other part of the body than the brain, 
 as the spinal chord or nerves can originate hallucinations, 
 any more than there is proof that any other pari of the body 
 can originate the higher modes of conscious thought — all 
 the facts and arguments that serve to establish that the brain 
 is the organ of the mind in health, also establish that it is 
 the organ of the mind in disease. For while automatic acts, 
 as nursing and so forth, may be manifested by brainless 
 infants, and while the spinal cord clearly contains centres of 
 reflex action, yet there is no proof that any conscious 
 thought, of the higher kind at least, attends the activity of 
 these reflex centres, any more than in the familiar auto- 
 matic movements of plants. The hallucinations of trance — 
 the visions of heaven and other innumerable fancies — must 
 then, like dreams, and all mental operations, whether co- 
 herent or incoherent, have their seat in some part of the 
 brain ; and, according to this hypothesis, their existence, 
 their coherency, and their extreme activity are all explained. 
 Illusions and delusions may arise in brains that are in a 
 normal state, through the necessary deceptions of the senses, 
 but many of them are, in part at least, of a transient char- 
 acter, and are in various ways corrected ; but in trance both 
 the false perceptions (illusions), and the false conclusions 
 from what is perceived (delusions) are permanent, and in 
 many cases are immensely more absurd than ever arise in 
 the normal state. 
 
 Ninthly. This hypothesis accounts for the relation of 
 trance to its admitted predisposing and exciting, causes. 
 
 By this hypothesis any influence that tends to overthrow 
 the cerebral equilibrium, to disturb the balance of innerva- 
 tion, would be likely to be a cause of trance ; experience 
 shows that this is actually the case. 
 
33^ A NEW THEORY OF TRANCE AND ITS 
 
 The predisposing, like the exciting causes of trance, are 
 both physical and psychical. 
 
 One is physically predisposed to trance, so far forth, who 
 inherits, or has acquired a nervous system generally sensit- 
 ive and impressible. One is psychically predisposed to 
 trance who is mentally unbalanced through excessive and 
 disproportionate endowment of imagination and emotion. 
 One who is powerfully developed in reasoning and thinking 
 qualities, and is badly deficient in observing, practical facul- 
 ties is so far forth predisposed to the- intellectual form of 
 trance. The best subjects are those who are predisposed, 
 both physically and psychically, who have sensitive organi- 
 zations, and unbalanced, ill- trained minds. 
 
 A typical subject for emotional trance, especially the mes- 
 meric form, is the average shop-girl ; she is usually deli- 
 cate in body, feeble in mind, or rather, all that is in her of 
 mind runs to emotion, and that little is but half matured; 
 it is almost as easy for her to become entranced under ex- 
 citing causes as it is to laugh or cry. Persons of this mental 
 calibre and immaturity, of either sex, are predisposed to 
 trance, even when physically they are very strong. Trance 
 is not, however, as many suppose, the peculiar gift of certain 
 temperaments. It is the property of the human race. All 
 persons are liable to become entranced, just as they are liable 
 to become paralyzed or epileptic, although all do not suffer 
 in this way. All persons are not predisposed to the same 
 form of this disorder ; one can only be entranced through 
 the intellect, another through the emotions ; one person can 
 only be frightened into this state ; one needs the presence 
 of a medium, another of a mind reader, another of a clair.- 
 voyant, and another of a mesmerizer ; another of a magnet- 
 ized letter, and another still, of one who performs miracles 
 of healing by the laying on of hands. Mr. Grimes, who has 
 had much experience with the mesmeric trance, and who 
 is accustomed to direct his subjects to stand still with closed 
 eyes and folded hands as a means of exciting the emotion of 
 reverence, says that he failed with every one out of forty 
 military officers at West Point, while just across the river, 
 among the operatives, the same process was very success- 
 
BEARINGS ON HUMAN TESTIMONY. 339 
 
 fu].* This is easy to understand from what has already been 
 stated in regard to the predisposing causes, but it would be 
 an error to infer that those officers were not capable of being 
 entranced. If they should all sit in a circle around a table 
 for half an hour or more, with the expectation that some 
 strange things would develop, very likely some of them 
 would become carried away, and, by unconscious muscular 
 motion, would move the table, or perhaps they would feel 
 sensations like electrical shocks through their bodies, or 
 they might go into convulsions, or might experience wonder- 
 ful visions, hearing the voices and seeing the faces of loved 
 ones. 
 
 Tenthly. This hypothesis accounts for the periodicity of 
 trance in certain cases. 
 
 It is the nature of all functional nervous diseases — neural- 
 gia, sick headache, hay fever, inebriety, and some forms of 
 insanity, to appear more or less periodically. It may be said, 
 I think, that the majority of cases of spontaneous trance are 
 periodic. Several of the cases reported in this paper to 
 illustrate various points, it will be observed, agree in this 
 element of periodicity, though widely differing in other 
 features. The famous case of the French sergeant, for ex- 
 ample, is a striking illustration of the periodicity of this dis- 
 ease. According to Dr. Mesnet's report, the attacks of 
 trance in this case came on after a hemiplegia, which fol- 
 lowed a wound in the head received at Sedan. From one to 
 two or three days of every month are passed in this state, 
 into which he enters spontaneously and instantaneously. 
 While in trance the sense of touch is much exalted, the 
 sense of sight appears to be limited to those objects wich 
 which he is brought in direct relation, and is only excited 
 
 * Mr. Grimes has recently published a work, entitled "Mysteries of the 
 Head and Heart," the latter portion of which especially is commanded to the 
 attention of those who are interested in these themes. Mr. Grimes is almost 
 the only writer on trance who has had sufficient originality and mental force to- 
 see more than one side of it. But. like Dr. Carpenter, and most other writers 
 on these subjects, he fails to see all sides, and he makes the mistake which is 
 fatal to the scientific study of trance, of conceding the possibility of thought- 
 reading. This serious mistake results from the studying the subject induc- 
 tively instead of deductively ; it is, indeed, as I shall show farther on, an in- 
 evitable mistake from that false method of reasoning. 
 
34° A NEW THEORY OF TRANCE AND ITS 
 
 into activity automatically by the sense of the touch ; all the 
 other senses are sealed. The excessive activity of the sense 
 of touch appears to supply the place of the other senses in 
 a measure, so that he eats, drinks, smokes, dresses, and 
 undresses, and retires to bed- as in his normal state ; but 
 throughout mechanically responds to external suggestions. 
 
 Here, as it would seem, I might close the case, with all 
 the real phenomena of trance- accounted for, unified and 
 harmonized by this hypothesis of concentration of activity 
 in a limited region of the brain. It may be opposed to all 
 this process of reasoning, that no one has ever seen with his 
 eyes the brain thus concentrating its force during an attack 
 of trance ; but it must be remembered that only exception- 
 ally can scientific hypotheses be verified by actual sight. 
 Even in the material world the seen is but a fraction of the 
 unseen. No man ever saw the waves of light ; no man has 
 ever seen gravity ; these universal forces are studied only 
 through their phenomena, bv means of which we frame hy- 
 potheses of the law of gravitation, and the existence of a 
 luminiferous ether. In the realm of physiology and pa- 
 thology, the chances of verification by actual sense percep- 
 tion are more rare than in astronomy or physics. Only by 
 deduction can we arrive at any idea of any functional dis- 
 ease whatsoever, or of the relation of mind to brain. 
 
 It is essential to the validity of a scientific hypothesis that 
 it accounts for all the phenomena, and that it be the only 
 hypothesis that will account for them. The supernatural 
 hypothesis of trance, which is the one that has been most 
 genet ally entertained, even if there were no other argument 
 against it, must be dismissed at once, as soon as it is found 
 that the phenomena can be fully explained by natural 
 causes. 
 
 Although we have the authority of the best writers on the 
 principles of science, Whewell and Jevons, for accepting an 
 hypothesis if it be singly and solely competent to account 
 for all the phenomena ; yet the best hypotheses, as it seems 
 to me, will bear even severer tests ; they will shed light on 
 other and allied phenomena, and will point to new and pre- 
 viously unknown phenomena, for which they will also ac- 
 
BEARINGS ON HUMAN TESTIMONY. 34 1 
 
 count. This hypothesis of the nature of trance will bear, 
 in a manner, this severe and.supplementary test. It puts us 
 in a position to predict, from our knowledge of the mental 
 and physical characteristics of an individual, whether he 
 will or will not be likely to become the victim, of any form 
 of trance. This hypothesis is also of material assistance in 
 studying the automatic functions of the brain and the re- 
 lation of automatism to responsibility, which just now is the 
 battle ground of science. 
 
 This hypothesis also assists us in obtaining a general idea 
 of the nature of sleep, explaining in a general way the phil- 
 osophy of dreams, the cause of their incoherency, their re- 
 lation to trance and the cause of loss of will in that state. 
 
 Thousands, if not millions, of pages have been written on 
 the will ; all metaphysics is complicated by discussions on, 
 and obscured by ignorance of the nature of this element of 
 the mind. In the light of this theory of trance, the will is 
 not any single, or special, or separate faculty, but the co- 
 ordinated action of all the faculties ; and the reason why, in 
 trance, the will is displaced is that the activity of a consider- 
 able portion of the faculties is suspended. There is scarcely 
 a problem in psychology that is not simplified by this ex- 
 explanation of the nature of the will, as all who are familiar- 
 with the literature of the subject will perceive. 
 
 In regard to the other popularly alleged phenomena of 
 trance, — clairvoyant, or second-sight power, or the existence 
 of a sixth sense, by means of which the subject is nble to see 
 around and through the world, and into other worlds, or to 
 tell time through the back of the head, or to read with closed 
 eyes, or to see through opaque objects, or to discover lost 
 persons and property, or to reveal the past, or to prophesy 
 with precision, to communicate with spirits of the departed, 
 or to raise the dead — in regard to all these claims, and every 
 claim allied to them, I may say that there are not, and never 
 have been, and never can be any such phenomena. How 
 do we know that phenomena of this kind never have existed 
 and never can exist in the trance ? It is not a matter of 
 opinion, or of the ipse dixit of any man, or of any number 
 
34 2 A NEW THEORY OF TRANCE AND ITS 
 
 of men ; it is a fact capable of absolute proof that no phe- 
 nomena of this kind have ever appeared in the world in any- 
 human creature, in trance or out of trance. 
 
 How do we know this? Surely not through inductive 
 reasoning, whicli is the method usually resorted to in study- 
 ing this subject. No amount of inductive research will ever 
 advance this branch of science one inch. Suppose that 
 there are a thousand clairvoyants, and mediums and mind- 
 readers who profess to have these powers, and that by the 
 investigation of some competent expert (and none but an 
 expert can conduct investigations of this kind), it is shown 
 that none of them are justified in their claims, that all of 
 them are intentional or unintentional deceivers, what have 
 we found ? Simply nothing. We leave off where we started. 
 How do we know that the next clairvoyant does not have 
 the power that she claims to have ? How do we know that 
 even these one thousand may not have had the powers they 
 claim just before our investigation, or just after ? You say 
 that exposures of this kind diminish the probability that any 
 one has these gifts. Very true, but in science we are not to 
 be content with a low degree of probability when we can 
 get certainty, and on this subject we can get certainty- 
 I have no sympathy, therefore, with the habit, honored 
 though it may be by the endorsement of some of the 
 greatest names, from the committee of the French 
 Academy down — of offering large sums of money to those' 
 who will display these marvelous gifts. No plan conceiv- 
 able could be more unscientific than this. Two years ago, 
 a friend of mine, much interested in these themes, and un- 
 commonly successful in the study of them, remarked to 
 me, " I have laid by a few thousand dollars, the results of 
 labor and. saving ; I will give it all to any one who will read 
 the mind of another." He gave me authority to publicly 
 use his offer, which I did not do, for the reason I have given. 
 I observe that offers of this kind find no takers, for no one 
 ever was endowed with any of these divine powers ; but the 
 fact of their non-acceptance is negative evidence merely, 
 and leaves the subject where it found it. 
 
BEARINGS ON HUMAN TESTIMONY. 343 
 
 • The true way, the only way to settle this question, is 
 thiough deductive reasoning, by the application of this law 
 of nature, devised from the experience of all authorities in 
 physiology — namely, that no human being ever has any 
 faculty different in kind from that conferred on the human 
 race in general. The law is of universal application, and 
 may embrace all species of living things ; but for our purpose 
 here it is sufficient to limit it to the human race. The differ- 
 ence between Socrates, Newton, Shakespeare, and Milton, 
 and the lowest type of society is a difference of degree only; 
 all the mental faculties are common to all. None of the real 
 phenomena of trance, as above detailed, differ from those 
 that are common to the human family otherwise than in 
 degree. When, therefore, we hear these wondrous stories of 
 second-sight and thought-reading, though endorsed, as they 
 oftentimes are, by the ablest and most honest scientific men 
 of the world, we need spend no time or force in investigating 
 them ; deduction proves their falsity without any examina- 
 tion. 
 
 We can, if we choose, and are competent to do so, verify 
 and illustrate our deductions by exposure of those making 
 these claims, but let us beware of making these exposures 
 with the idea of proving anything. With the masses of the 
 people, who are moved by their instincts, these exposures 
 count for much, I admit ; but science has no need of them, 
 and save in exceptional cases, when incidentally they lead 
 to positive and original contributions to science, as in the 
 case of the Fox girls, the table lifters, and Brown, the mind- 
 reader, derives no aid from them in settling this great 
 question.* 
 
 * Lest I may be accused of inconsistency, I may say that whatever I have 
 done during the past few years in the way of detecting and exposing mediums, 
 clairvoyants and mind-readers has been, not for the purpose of ascertaining 
 the truth or falsity of the claims made by these performers and their advocates, 
 since that question is, as I have stated above, settled definitely and forever by 
 deductive reasoning, but partly in order to solve some questions relating to the 
 psychology of jugglery — a most instructive and much neglected subject — and 
 partly also out of regard to the weaker brethren who are unable to employ 
 deductive reasoning, and can only be taught through what, in some way, ap- 
 peals to the senses. These exposures are, in strict logic, no absolute disproval 
 
344 A NEW THEORY OF TRANCE AND ITS 
 
 Likewise the common objections that these delusions do 
 no good and much harm, and add nothing to the treasury of 
 human knowledge, have no place in science, however useful 
 they may be in practically dealing with the people. 
 
 In regard to all these claims, it may be said that in all 
 cases whenever the hand of an expert touches them they 
 vanish into air. Non-expert human testimony of vast pro" 
 portions, in favor of all these claims, crowds our libraries 
 and our newspapers ; but the testimony in favor of witch- 
 craft, of alchemy, of magic, and of astrology is incomparably 
 more imposing; but non-expert human testimony in matters 
 of science is, as you are aware, of no value, and no force of 
 numbers can give it any value. No process of addition can 
 make knowledge out of ignorance ; a million ciphers are 
 worth no more than one cipher. A strong boy standing on 
 the shore tries to throw a stone across the Atlantic, and 
 fails ; a million of boys come to his aid, and each one tries 
 to throw a stone ; all combined shall not help the first boy, 
 nor come much nearer to reaching the other shore, though 
 they may toil forever. 
 
 The cures of disease wrought on trance subjects are often- 
 times genuine cures — the result of mind acting on body, as 
 
 in the abstract of the claims made by those who are exposed ; but their influ- 
 ence with the people, even with physicians and scientific men, is, as I have 
 found by experience, enormously greater than any scientific method of treating 
 the subject possibly can be. Thus, in the case of the Eddy Brothers, who 
 contracted the habit of raising the dead in immense numbers, in an out of the 
 way hamlet of "Vermont, deductive reasoning was, to one who knew how to 
 employ it, amply sufficient, without any attempt at special verification, to dis- 
 prove the claim ; and yet there were in this country thousands of persons, 
 many of them of the highest intelligence, and some of them of scientific dis- 
 tinction, who, up to the time of my published exposure, were not a little un- 
 easy in mind in regard to what was alleged, on excellent average testimony, to 
 be performed there. 
 
 Likewise, in the case of Brown's mind-readii'.j, — in some respects the most 
 original and remarkable performance connected with delusions — comparatively 
 few, even of physicians and physiologists were able, at once, to grasp the true, 
 though somewhat complex explanation which I gave — unconscious muscular 
 tension and relaxation on the part of the subject — although the theory was con- 
 firmed by careful and repeated experiments ; but the incidental comparison of 
 the mind-reading seances to the "learned pig" exhibitions, in my letters to 
 the Tribune, was more effective in bringing the trickery into contempt, as I 
 have various reasons for believing, than any published reasonings or explana- 
 tions. 
 
BEARINGS ON HUMAN TESTIMONY. 
 
 345 
 
 I have proved by a systematic series of experiments wherein 
 even without the aid of trance, I accomplished, and have, in 
 my paper on the subject before the American Neurological 
 Association, pointed out in detail the way for others to ac- 
 complish most remarkable and oftentimes permanent results 
 in serious cases of disease — results which formerly were re- 
 garded as miraculous. 
 
 An excellent parallel to the superstitions connected with 
 trance is found in the perpetual motion delusion. For cen- 
 turies the belief that perpetual motion was attainable, domi- 
 nated in the civilized world, and, like the delusions of second 
 sight, clairvoyance, and so forth, was most active in the in- 
 telligent classes ; thousands upon thousands of machines 
 have been devised, which, by their inventors, and by their 
 friends, were supposed to have solved the problem, and no 
 amount of inductive investigation could ever have availed 
 to settle the question, since but a minority of claims could 
 be exposed by expert skill, and in every direction new claim- 
 ants were appearing, and likely to appear. Not until physi- 
 cists were able to demonstrate deductively through the law 
 of the correlation and conservation of force, that perpetual 
 motion was impossible, was the delusion dispelled. At the 
 present time all classes of perpetual motion are disallowed 
 by physicists without a moment's examination. It would be 
 as much a violation of the established and unvarying laws of 
 nature, for one person to have any faculty different in kind 
 from those belonging to the race in general — such as second 
 sight, or clairvoyance, or mind-reading, or prevision, or retro- 
 vision — as for the sun to rise in the west instead of the east ; 
 by legitimate deductive reasoning the one claim is as con- 
 clusively disposed of as the other. 
 
 It was only by deductive reasoning that the delusion of 
 alchemy was gradually overcome The belief prevailed in 
 Europe that the baser metals could be turned into gold ; 
 the ablest minds were influenced by the delusion ; even Sir 
 Isaac Newton, it is claimed, did not escape the infection. 
 Throughout Europe, indeed, alchemists were for centuries 
 as common and as annoying as clairvoyants and mind- 
 
346 A NEW THEORY OF TRANCE AND ITS 
 
 readers are to-day ; and induction was equally powerless 
 against them, and for the same reason. As chemistry passed 
 slowly out of the territorial into the organized stage, it be- 
 came possible to prove deductively that baser metals could 
 not be turned into gold, and claims to that effect ceased to 
 be examined. In his one department of astronomy, Sir Isaac 
 Newton was perhaps the greatest master of deductive reason- 
 ing that the world has ever seen ; but in studying alchemy 
 he was but a layman, a non-expert, and blundered accord- 
 ingly ; and in this respect, if in no other, his example has 
 been imitated by a number of eminent judges, physicists, 
 and naturalists of our day. 
 
 Another excellent parallel drawn from physiology is 
 found in the belief, in this country at least widely preval- 
 ent, even among the educated classes, that oculists can take 
 out the eye in a living patient, clean it, and put it back 
 again. Thousands of individuals of general intelligence are 
 positive that they have seen, with their own lyes, this oper- 
 ation performed, and many of them would be willing to 
 swear in court to that effect ; patients themselves, as an 
 oculist of reputation, Dr. Matthewson informs me, are posi- 
 tive that this operation has been performed on themselves. 
 To meet this delusion by exhaustive investigation, by ex- 
 posing, in detail, every claim of this kind that is, or has 
 been, or will be made in the world, is manifestly beyond 
 human power; and if such exhaustive exposures had been 
 made, the possibility that such an operation could be per- 
 formed might still be urged. Only by deductive reasoning — 
 by the recognition of the absolutely established physi- 
 ological law that it is as impossible to detach the eye from 
 its nervous, vascular, &nd muscular connections, and restore 
 it to those connections, not only unharmed, but benefited by 
 the procedure, as is claimed, as it would be to cut off the 
 head and put it back again on the living man — can this de- 
 lusion be successfully met. 
 
 Those who have followed my argument thus far will find 
 no difficulty in accounting for the fact, that the trance has 
 for so long a time been a refuge and a hiding-place for the 
 
BEARINGS ON HUMAN TESTIMONY. 347 
 
 world's great impostors. The essence of a delusion is 
 ignorance, and in all ages the delusions of mankind have 
 sheltered themselves in the darkness of the unexplained 
 phenomena, and have retreated as fast as light is let in upon 
 them. As astronomy rose astrology sank ; as chemistry was 
 developed, alchemy died away ; as medicine became some- 
 thing of a science, witchcraft lost its vitality ; the trance and 
 the automatic side of human nature have been so full of 
 mystery that in them the delusions of our time have made 
 their last stand, from which they are already beginning to 
 retreat. 
 
 It is the belief of the wisest men of our time, that there is 
 a scientific substratum to delusions. This belief is well 
 founded ; there is a scientific substratum to delusions, 
 and it is found in the subject under consideration, and it is 
 for that sake alone worthy of the study of all physiologists 
 who are competent to make themselves masters of this 
 branch of inquiry. 
 
 Those who fully understand the nature and symptoms of 
 trance, as I have here described them, and the involuntary 
 life of which trance is, so to speak, the triumph and culmi- 
 nation, may remain assured that they have possessed them- 
 selves of all that is genuine and important in witchcraft, in 
 clairvoyance, in spiritualism, in mind-reading, and in animal 
 magnetism, which latter is the mother of all modern delu- 
 sions, being, indeed, to our century what witchcraft was to 
 the fourteenth. 
 
 In the light of the theory here proposed, it will be seen 
 that trance has a two-fold interest, scientific and practical — 
 scientific in its relations to both physiology and pathology, 
 and practical in its bearing on the principles of evidence, as 
 obtained through human testimony. 
 
 There are various reasons why all that portion of logic, as 
 taught in our colleges and schools of law, that treats of 
 human testimony, must be radically reconstructed, and 
 when this reconstruction is made, as it surely will be, it will 
 be found that much of what is called history, is subjective 
 rather than objective, originating in the brain rather than in 
 
34§ A NEW THEORY OF TRANCE AND ITS 
 
 external nature; and it will be seen that not an inconsider- 
 able portion of our libraries can be laid aside and forgotten 
 without detriment to the cause of truth, and with large ad- 
 vantage to those who wish to make the wisest use of time. 
 The necessity for thus reconstructing the piinciples of evi- 
 dence is based, in part, though not entirely, on the fact 
 that all persons are liable to be entranced, and that when in 
 th it stage their own statements of what they experience is of 
 little or no value. 
 
 On legal medicine, trance has a direct and most impoitant 
 application, and in four ways: 
 
 First. Testimony as to crimes committed under circum- 
 stances of great excitement. Arson, murder, and even theft, 
 especially burglary, may cause or be attended by so much 
 of fear or terror on the part of those who witness them, 
 either sufferers or by-standeis, that their testimony, as to 
 what occurred, may become of slight value. The possibility 
 that witnesses may be entranced through the emotion of 
 fear, is worthy of fair consideration in all cases of this kind 
 where details are testified to and insisted on, and wheie 
 there is important conflict of evidence between witnesses. 
 
 Second. Testimony relating to sudden accidents, attended 
 with fatal or serious consequences. 
 
 The value of testimony often brought before coroners' 
 juries is impaired, and quite frequently neutralized al- 
 together by the fact that the excitement of sudden accidents 
 tends to entrance those who are directly concerned ; and 
 thus the attempt to fix responsibility in such cases so often 
 miscarries. A typical instance is found in the disaster that 
 occurred to the yacht Mohawk, in New York harbor, last 
 summer. It will be remembered that this yacht was sud- 
 denly capsized, and thrown completely over while getting 
 under weigh, one afternoon, off Staten Island. Commodore 
 Garner and his wife and several others were drowned. The 
 captain was quite generally blamed, and there was a strong 
 desire among the people to have him indicted for criminal 
 negligence. The testimony given on the trial before the 
 coroner was far from being satisfactory to the impartial 
 
BEARINGS ON HUMAN TESTIMONY. 
 
 349 
 
 minds, and the captain was discharged. In cases of this 
 kind newspapers are violent, and call for the blood of those 
 whom they suppose to be unpardonably negligent ; but 
 coroners' juries, following their intuitions or their feelings 
 of compassion, are unwilling, as a rule, to convict on the 
 testimony usually brought before them ; and in this respect 
 they are right, although they may not know why. Their 
 impulses and their intuitions are wiser than the logic and 
 eloquence of editors and preachers. Imminent peril and 
 unexpected disaster, threatening or injuring life, are likely 
 to excite trance, and thus to diminish the value of the testi- 
 mony of the parties concerned, to such a degree, that we 
 should pause before inflicting punishment. In the case of 
 the Mohawk, the squall was so sudden, and the capsizing of 
 the yacht so quick, and the position of those on boaid so 
 perilousthat any attempt to ascertain just what transpired 
 may as well be abandoned. We shall never know what oc- 
 curred after the squall struck the yacht, in sufficient detail, 
 to punish any one. 
 
 There is no doubt that persons in responsible positions 
 sometimes become entranced as peril approaches, and thus 
 they are liable to take precisely the wrong course, and to do 
 that which they especially wish to avoid, like a mesmerized 
 subject. A few years since, while returning from Europe, 
 our steamer collided with a sailing vessel, under these cir- 
 cumstances. It was a starlight night, and the sailing vessel 
 was sighted at least fifteen minutes before the moment of 
 collision, and was not lost sight of during that time. The 
 vessel was coming across our bows. Under right manage- 
 ment on the part of the officer of the deck a collision would 
 have been impossible. If we had stopped, if we had backed, 
 if we had kept on our course, if we had turned to the port, 
 all would have been well. There was but one way in which 
 it was possible for us to run into the sailing vessel, and that 
 was by turning to the starboard and chasing her. That 
 course the officer of the deck took, and succeeded in running 
 into and knocking the masts out of the sailing vessel. There 
 there was no suspicion of intention ; there could have been 
 
35° A NEW THEORY OF TRANCE AND ITS 
 
 no motive. The officer in charge was not over-experienced, 
 probably became entranced, and did just what he terribly 
 wished to avoid doing.* 
 
 In cases of this kind, the responsibility, legal or moral, 
 belongs to those who allow men of insufficient capacity or 
 experience to take positions for which they are not adapted. 
 For what the man does or does not do at the time he is not 
 criminally responsible. In those who have the right ca- 
 pacity for a responsible station, and whose experience in 
 that station has been large, the liability to become entranced 
 through fear is reduced to a minimum. 
 
 Third. Testimony relating to alleged crime or wrong 
 deeds committed by entranced persons. 
 
 * On this occasion was also illustrated, in a most interesting way, the 
 power of fear to entrance large numbers of individuals simultaneously, causing 
 them all to see precisely what they feared to see. After the collision, the pass- 
 engers from the cabin and steerage rushed on the quarter-deck, many of them 
 overcome with terror, and nearly all of them supposed that our steamer was 
 seriously injured. The sound of the falling spars, unspeakably dismal in the 
 darkness, the roar of the wind, which seemed, as usual, to rise at the critical 
 moment, the difficulty and awkwardness that attended the slow lowering of 
 the boats on the dashing waves, the shrieks, and prayers, and cries of the pass- 
 engers, all combined to make the emotion of fear the master of the occasion. 
 In the height of the excitement, the cry went forth that our steamer was stove 
 in, and that the bow was sinking. Straightway all eyes were turned toward 
 the bow, and to every eye it seemed to be sinking. I shall never forget how 
 that bow gradually lowered in the darkness, as I anxiously gazed upon it ; and 
 yet, so far as I am able to judge, I was more angry at myself for not having 
 taken some other steamer than fearful of shipwreck. Probably all, or nearly 
 all the passengers would, if necessary, have testified in court, under oath, that 
 the bow of our steamer gradually sank before them on that night ; and yet the 
 bow did not sink, the steamer was uninjured. For the circumstances of that 
 accident substitute the pretense of mystic or supernatural power, through the 
 agency of an oracle, a seeress, a sorcerer, a necromancer, a witch, a conjurer, 
 a juggler a magnetizer, a medicine man, a medium, a clairvoyant, a mind- 
 reader, or a repository of animal magnetism, or ordic, or psychic force ; for 
 the excitation of the motion of fear, substitute the excitation of the emotions 
 of wonder, reverence and expectancy, combined with fear, and we are in a 
 position to estimate the value of the literature of delusions. 
 
 The day before the burning of the Brooklyn theatre, I lectured on this sub- 
 ject in that city, and remarked that an alarm of fire was one of the best ex- 
 exciting causes of trance. The confirmation of this view the following day 
 was of a most remarkable and unusual character. Probably the' majority of 
 those in the theatre were more or less entranced ; some being unable to move, 
 others unconscious of what they did, and unable to tell what happened or what 
 they saw or heard. How animals are entranced through fear is shown by the 
 conduct of horses when stables take fire ; by the experiments of Czermak with 
 crawfish, hens, frogs, and so forth ; and by the ease which snakes charm birds, 
 and draw them helpless within easy reach ; but in perilous circumstances 
 masses of men are little or no better than animals. 
 
BEARINGS ON HUMAN TESTIMONY. 351 
 
 It is quite rarely that subjects in any form of trance are 
 accused of committing crime while in that state, for this 
 reason, mainly, that the commission of crime requires, usu- 
 ally, the exercise of the will; although, as in some forms of in- 
 sanity, the will may be irresponsible. The automatic move- 
 ments of entranced subjects, whether called forth by external 
 suggestion of any kind, or of a subjective origin purely, can 
 rarely lead to positive crime ; although they may accom- 
 plish some form of injury. It is conceivable that a mesmer- 
 ized subject might, under the influence of external sugges- 
 tion, strike a blow that would injure some one ; but there 
 could be no deliberate, sustained attack, with a view to in- 
 lure. Again, the very suggestion of crime, or serious evil- 
 doing of any kind, to a mesmerized subject, seems to have 
 the effect to restore the equilibrium of the brain, like a 
 physical jar, or knock, or push; and he comes out of the 
 trance, at least sufficiently to be able to resist the suggestion. 
 Of the large number of cases of trance I have seen, I do not 
 recollect any instance of evil doing of any kind. Mr. Grimes, 
 who has devoted his life to the practical study of the subject, 
 declares that subjects, even when fully under the influence 
 of the operator, and ready to act according to the sugges- 
 tions he gives, will not do an indelicate thing. Say to a 
 young man who has gone into a mesmeric trance, with the 
 belief that the so-called operator wiil have an influence 
 over him, that he is a lawyer, and the jury is before him, 
 and he will proceed with an eloquent, if not logical plea ; 
 tell him that he is in an orchard, and that the ground is cov- 
 ered with fruit, which he may pick up and distribute to the 
 audience, and he will do as suggested ; hand him a broom- 
 stick, saying that it is a lady, and he will put his arms 
 around it ; give him a brick, and tell him that it is a baby, 
 and he will hug it ; and yet, if that same young man, while 
 in that state, at the mercy of the operator apparently, be 
 requested to expose his person, he would at once refuse, the 
 suggestion acting perhaps as a means of bringing him out 
 of the trance. 
 
 In. the case of Tilton vs. Beecher, it was claimed privately 
 
352 A NEW THEORY OF TRANCE AND ITS 
 
 by the counsel for Mr. Beecher (if newspaper reports are 
 correct), and publicly by the committee appointed by Mr. 
 Beecher, that Mrs. Tilton was entranced at the time she 
 signed some of her contradictory documents. Dr. Corey of 
 Brooklyn, who has had much experience with diseases of 
 the brain, testified before the committee, according to their 
 report, that the conduct of Mrs. Tilton could be explained 
 on that theory. It is conceivable that so simple a move- 
 ment as the signing of one's name to a false document of 
 teirible import, might be automatically made by a mesmer- 
 ized subject, at the suggestion of the person whom she sup- 
 posed put her into the trance. There is, however, no pub- 
 lished evidence that Mrs. Tilton was in a trance at the time 
 referred to, and no certainty, if she were in that state, that 
 she was in a condition to respond in detail automatically to 
 the suggestion of anyone. Granting that she was entranced 
 through a combination of physical weakness and mental 
 excitement, which is possible, the suggestion that she com- 
 mit the great crime of charging unjustly a great crime on 
 another, would have been likely to have brought her out of 
 the trance.* 
 
 Fourth. Testimony in the trial of those who, under pre- 
 tense of going into trance, defraud the people. 
 
 Nothing is easier to counterfeit, after slight practice, than 
 the early physical symptoms of trance; the closing of the 
 eyes, the jerking of the head, the general twitching of the 
 muscles, and the sighing respiration, can all be simulated 
 by even a poor actor so perfectly that an expert cannot, 
 without careful investigation, be sure of the deception. 
 The exhaustion, on coming out of trance, is also readily 
 counterfeited. The great majority of public clairvoyants, 
 seeresses, and thought readers, keep out of trance, and 
 while they pretend to go into it, entrance their visitors 
 through the emotions of vyonder and expectation, causing 
 them to see what they are told to see, hear what they ex- 
 pect to hear, and to tell them the secrets they wish to know, 
 
 * Dr. Mesnet, of France, states in his report on the case of the French 
 Sergeant, that he has known of two cases of trance that ended in suicide.- 
 
BEARINGS ON HUMAN TESTIMONY. 353 
 
 and thus they accomplish their fraudulent purposes. I have 
 had interviews at various times with many of the most 
 famous clairvoyants in the country, and under circum- 
 stances where I had all possible opportunity of judging, and 
 I have yet to see a sure case of genuine trance among them. 
 
 An expert is justified in testifying in court, first, that these 
 impostors do nut go into the trance at all, as a rule, very 
 few of them having the power of self-inducing that state, 
 and that those who do have that power have no use for its 
 exercise when any fraud is to be brought about ; and, 
 secondly, that even those who can induce trance in them- 
 selves do not have, while in that state, any of the powers 
 which they claim, as is proved deductively by the known 
 law of physiology already mentioned. All of these persons, 
 therefore, whenever they profess to have powers different 
 in kind from other persons, i e., to find lost persons or 
 property, or to tell the past or the future, or diagnose dis- 
 ease, or to raise the dead, are guilty of fraud before the law, 
 and when they are tried, if expert testimony is received in 
 court, must be, without exception, convicted. 
 
 On the other hand, if average human testimony — which in 
 this, as in all scientific matters, is vastly worse than no testi- 
 mony at all — be received, these deceivers must in every case 
 be acquitted ; for in this country ten non-experts can be 
 found to testify in their favor to one who will testify against 
 them. It is for this reason that trials of these cases in this 
 country have been, without exception, so far as I know, dis- 
 graceful both to science and to law. In the famous Ward 
 case, in Detroit, for instance, where an attempt was made to 
 break a will, on the ground that it was made under the influ- 
 ence of mediums,nosingle witness competent to testify on the 
 subject, was called by either side, although the trial was a 
 long one ; while public mediums, whose lives are devoted to 
 crime, (among them, I believe, Slade, just convicted in Lon- 
 don) were called to give their opinion as experts. What 
 would be thought of summoning some local Lucretia Borgia 
 as an expert in a poisoningcase, orsome memberof the Molly 
 Maguire gang, in a case of murder. 
 
354 A NEW THEORY OF TRANCE AND ITS 
 
 A few years since, according to a newspaper account, a 
 clairvoyant pretender was arrested in Bridgeport, and went 
 through the form of a trial for deceiving a shop girl. A 
 dozen or more shop girls were allowed to testify that the ac- 
 cused had divine powers, and consequently she was acquitted, 
 and borne off amid the plaudits of the mob. 
 
 It may be objected, both to the theory and the practical 
 conclusions, from the theory here advocated, that even 
 granting their entire soundness in the abstract, they would, 
 if generally understood and held, have a paralyzing influ- 
 ence by encouraging the sceptical spirit, both in science and 
 in law. To this I would reply, that scepticism is a relative 
 term merely, and rightly viewed, is but another form of be- 
 lief. Strictly speaking we are all believers. We can no 
 more avoid believing than we can avoid breathing. Super- 
 stition and science are both credulous, only that one believes 
 the false, the other the true. Science is indeed but a higher 
 form of faith ; it knows what to receive and what to reject, 
 If the distinction between belief and scepticism be retained, 
 it may be said that superstition is the real sceptic, ignorance 
 is the doubter, and science the only believer. Facts, such 
 as are here urged, are therefore the strongest of all bulwarks 
 against scientific and popular scepticism, against that most 
 baneful of all forms of infidelity so prevalent everywhere, 
 but especially in this country, that rejects everything except 
 average human testimony, that makes the emotions the 
 masters rather the servants of reason, and in seeking for 
 objects of its faith, insists only on one condition, namely, 
 that they be untrue. 
 
 As regards trance, there is required no better proof of the 
 need there is of studying it, and of reducing it to a science, 
 as in the present essay I have attempted to do, than the fact 
 that up to the present moment the tendency has been, even 
 among physicians and physiologists, to reject the real and 
 demonstrate symptoms of this state — such as loss of will, 
 automatism, double consciousness, and exaltation of the 
 faculties, and to accept as genuine the impossible claims of 
 clairvoyance or second sight. 
 
BEARINGS ON HUMAN TESTIMONY. 
 
 355 
 
 If it be claimed that the application of thistheory of trance 
 to law, though ideally right, will be practically impossible, 
 I find my reply in the fact that our courts of justice are already 
 acting upon these principles, and with good results. For a 
 long time now it has been the custom to call experts in cases 
 of suspected poisoning and insanity, and yet every time a 
 lawyer summons an expert he abandons Greenleaf, who, in 
 his very ably written chapter on the principles of Evidence, 
 as introductory to the Harmony of the Gospels, places hon- 
 esty as the first qualification for a witness. 
 
 One reason, though not the only reason why experts are 
 called in cases of insanity, is that the evidence of the senses, 
 as such, is beginning to be regarded as of little value. 
 Everybody can see the insane, but only a few can see them 
 with expert eyes. 
 
 It will now not be a very long step for the law to take to 
 embrace in full the suggestions I have offered, and to accept 
 the principle that in matters of science average human testi- 
 mony as such, is absolutely worthless. To do so they must 
 throw overboard the principles of evidence as taught not 
 only in books and schools of law, but in all our courses on 
 .logic and metaphysics, and in our colleges and schools 
 everywhere, and, as assumed by all who attempt to reason 
 on any subject whatsoever ; they must throw overboard the 
 metaphysician, Thomas Reid, who, in his text-book on the 
 intellectual powers of man — long time an authority in 
 Europe and America — uses these words : "An upright judge 
 will give a fair hearing to every objection that can be made 
 to the integrity of a witness, and allow it to be possible that 
 he may be corrupted ; but no judge will even suppose that 
 witnesses may be imposed upon by trusting to their eyes 
 and ears; and if a sceptical counsel should plead against the 
 testimony of the witnesses that they had no other evidence' 
 from that declared than the testimony of their eyes and ears, 
 and that we ought not to put so much faith in our senses as 
 to deprive men of life and fortune upon their testimony, 
 surely no upright judge would admit a plea of this kind. I 
 believe no counsel, however sceptical, ever dared to offer 
 
356 A NEW THEORY OF TRANCE AND ITS 
 
 such an argument ; and if it was offered it would be rejected 
 with disdain." They must throw overboard Phillips and 
 Greenleaf, Edward W. Cox, the eminent English lawyer, 
 and legal author, who even declares that if the senses of 
 honest and intelligent observers are not to be trusted, we 
 must close our courts of justice. 
 
 These authorities which I have quoted — not as uttering 
 peculiar views on this subject, but simply as representing 
 the current notions of the world — will be, are, indeed al- 
 ready being thrown overboard, for in this direction, as in so 
 many others, human instinct is wiser than human reason ; 
 even as I write the cable brings the tidings that the justice 
 before whom the trial of Slade is conducted, has decided 
 that on the accused rests the burden of proving in court that 
 his trickery is wrought through the aid of supernatural 
 beings. This view of the justice is not the correct one, ac- 
 cording to the ideal presented in this paper, but it is prob- 
 ably the longest step ever made in the direction of that 
 ideal, for it implies an abandonment of the custom of set- 
 tling these questions by the testimony of the dupes of the 
 dupes of the deceivers. If the testimony of scores of hon- 
 est persons, including some of the ablest scientific minds in 
 the world — who believe that Slade is aided by supernatural 
 powers, in other words, is a doer of miracles — should be al- 
 lowed to have great weight in his favor, as in this country it 
 certainly would, he must surely be acquitted at once; for it 
 is not yet fully recognized that only expeits are competent 
 to deal with these subjects, and it is not generally known 
 that seances of this kind are the best of all exciting causes 
 of trance; so powerful indeed that only rare and peculiarly 
 organized minds can at first resist them, and that only after 
 long and special study of the phenomena of the nervous 
 system in health and disease, can any one even begin the in- 
 vestigation of this department of science. It is one symptom 
 of trance that one does not usually know that he is en- 
 tranced, and will swear that he is in his right mind, as the 
 intoxicated man will swear that he is sober. 
 
 Just now, in the present infancy of this subject, it would 
 
BEARINGS ON HUMAN TESTIMONY. 357 
 
 be difficult to try these cases in court by expert testimony, 
 for competent experts are very rarely found. In England, 
 Dr. Carpenter, who has labored so hard, and, in some re- 
 spects, so successfully in this department of science, is yet 
 so far out of the way as to concede the possibility of thought- 
 reading ; and admits that he could not see through the very 
 cheap and coarse and transparent trickery of Slade, which 
 any man can do who has two hands, two feet, a limited audi- 
 ence of scientific non-experts, and a conscience sufficiently 
 seared. 
 
 All the sciences of the world have passed through the 
 stage in which the subject under discussion is now passing. 
 We smile when a committee of editors, lawyers and clergy- 
 men are extemporaneously appointed to decide in public 
 whether entranced mediums have or have not divine powers 
 granted them in their trance state; but the time has been 
 when the great questions of astronomy, of chemistry, of 
 physics, and mediums were settled, or supposed to be settled, 
 in very much the same way. Sciences in their infancy are 
 like our distant Western territories, where every one who 
 chooses can squat down and stake out a claim.* 
 
 Observe that no new principles of evidence are introduced 
 for application to this special subject. The first step in the 
 development of all the sciences has always been the rejec- 
 tion of average human testimony. If we accept what people 
 say, there can be no scientific knowledge of any kind. Non- 
 expert human testimony is worth nearly as much on this 
 subject as it is on any other branch of science ; it is of little 
 value anywhere, and intuitively and unconsciously all au- 
 thorities on science reject it without examination, although 
 they have not heretofore formulated this custom into a 
 principle ; for here, as in many other things, the intuition 
 and unconscious reasoning has outstripped and been far in 
 advance of our conscious reasoning. We have professed in 
 theory, in books of logic and of law, that the senses are 
 trustworthy, and the concurrent testimony of large numbers 
 
 * The early history of Electro-physics in the last century excellently illus- 
 trates this fact. 
 
358 A NEW THEORY OF TRANCE AND ITS 
 
 of honest witnesses must be accepted as truth. In practice 
 we have oftentimes cut away from these false dogmas. Al- 
 ready we are slowly recognizing through our intuitions, and 
 must in time recognize through the reason, that all science 
 is and must be the product of expert skill, and that the first 
 qualification of a witness in court, or out of court, is not 
 honesty, but competence to judge of the special matter in hand. 
 
 In proportion as a science becomes developed into, and 
 recognized as a specialty, through labors of experts in that 
 branch, it is resigned to those experts, and outsiders do not 
 presume to interfere. Illustrations by contrast are right at 
 our very doors. The recent search for the suspected planet 
 Vulcan was, by universal consent, resigned to astronomers, 
 and no one thought of referring the question to committees 
 of eminent and upright judges, or poets, or physicians ; for 
 it was assumed that in an investigation of that kind, hon- 
 esty, as such, counted for nothing; and that ability, eve'n the 
 highest scientific genius in other departments than astronomy, 
 counted for nothing. But when Prof. Huxley, who is one 
 of the few authorities of the world on biology, gave a series 
 of lectures on evolution, which only a trained anatomist and 
 geologist could begin to apreciate, not to say criticise, forth- 
 with, the air is darkened with replies, and criticisms, and 
 suggestions, that almost any editor, or teacher, or professor, 
 or clergyman feels competent to offer, with no suspicion of 
 any special absurdity in such procedures. Why this con- 
 trast in the treatment which these two departments, astron- 
 omy and biology, receive ? Partly because astronomy is an 
 older science, has survived the attacks made upon it by the- 
 ology, while biology is as yet hardly out of the territorial 
 stage, where everybody has claims upon it, experts not hav- 
 ing yet made it their exclusive property* 
 
 * It may be alleged that Prof. Huxley took pains to formally attack an ac- 
 count of creation that belonged to a religion, and that in defense of their own 
 belief, and from their own point of view, theologians, at least, were compelled 
 to reply. Even allowing this privilege to theologians, it cannot be allowed to 
 editors or critics in general ; but the majority of theologians, it was observed, 
 did not restrict themselves to the defense of the Mosaic account of creation, 
 from the theological or philological stand-point, but brought positive criticism 
 
BEARINGS ON HUMAN TESTIMONY. 35.9 
 
 The subject we are discussing is now in this state. Every 
 eminent naturalist, or lawyer, or chemist feels that he can 
 occupy it if he wishes, and that the world must respect his 
 claims. They forget that the greatest blunders in history 
 have been made by men, eminent in special departments, 
 stepping outside of those departments, and that in all direc- 
 tions the truth of the aphorism of the famous magician 
 Houdin : "It is easier to dupe a clever man than a fool,'' 
 is confirmed by all who successfully study these themes. 
 The maxim for modern research should be out of the mouth 
 of two or three experts every word shall be established ; and 
 if they err, as they may, their conclusions are to be revised, 
 not by the laity, but by other and better experts. 
 
 The very stupendousness of the claim here made, I may 
 say in closing, may be a bar against its ready acceptance ; 
 but this objection is counterbalanced, in part at least, by the 
 fact that by acting on these suggestions, it is possible for 
 those who have adequate physiological knowledge and men- 
 
 to bear either for or against Prof. Huxley on his own ground in paleontology, 
 and thus by their relations to this special subject, la'.d themselves open to the 
 charge of being squatters in science. It is a wise rule for scientific men, in 
 public discussions, to religiously avoid religion ; and for the simple reason 
 that the theological explanations of natural phenomena, all, or almost all, 
 belong to- the pre-exploratory stages of science, and only by coincidence can 
 be expected to agree with the deductions of scientific experts, and therefore 
 do not require either rejection or confirmation. The religious idea of creation 
 has never been adopted as an hypothesis by scientific men, since biology and 
 geology have been in what I here call the territorial stage ; it belongs, rather, 
 to the pre-exploratory stage, and being, not a matter of science, but rather of 
 faith, it is not for biologists and geologists to argue for or against it. 
 
 The supernatural theory of trance, which has .been more generally adopted 
 than any other, I do not here attempt to elaborately disprove, for the same 
 reason, that it belongs to the pre-exploratory stage of this branch of cerebro- 
 physiology ; and, unlike the animal magnetism theory, has never been adopted 
 or seriously considered by the scientific men who have given their attention to 
 this subject since it has been in the tei ritorial stage. 
 
 If scientific men are persuaded that the beliefs of men are delusions, the 
 better way to destroy them is by independently building up positive truths, 
 which, if they are needed, and the world is ready for them, will be gradually 
 accepted, and correspondingly the delusions must disappear. The antidote for 
 darkness is light ; as the day dawns night retreats. Those who understand 
 and accept the theory of trance here unfolded, will dismiss forever the super- 
 natural explanation of the phenomena, just as those who understand and ac- 
 cept the theories of astronomy, dismiss forever from their minds all super- 
 natural associations connected with comets and meteors. 
 
360 A NEW THEORY OF TRANCE AND ITS 
 
 tal discipline, to study this whole subject for themselves, so 
 that it shall not be necessary for them to depend on the dog- 
 matic statements of any one. 
 
 Among a certain ancient people it was the custom for any- 
 one proposing a new law to stand with a halter around his 
 neck, so that if his proposition were displeasing to the people, 
 they might hang him on the spot. If this custom were in 
 force to-day, it is probable that the least possible mercy 
 would be shown to the author of this paper ; for it is not in 
 harmony with the laws of human nature, that views like 
 these, that have only truth on their side, and all the world's 
 past belief against them, shall find instant and secure lodg- 
 ment. It therefore becomes necessary to appeal from the 
 present to the not very far distant future, when a limited 
 number of competent men shall have made themselves 
 masters of and authorities in this branch of cerebro-physi > 
 ology and pathology, and shall have learned, as they surely 
 must, that it lies within the grasp of the properly trained 
 and properly furnished intellect, that its problems are no 
 longer unsolvable; that, in short, whatever mysteries have 
 gathered around it in the past exist no longer, but can be 
 explained, and are explained in full detail, and that they 
 can explain them. 
 
 As this rich and fertile field becomes occupied by those 
 who alone are able to cultivate it, amateurs and laymen, and 
 what I here call the squatte f rs of science, will gradually re- 
 tire, and the grotesque spectacle, but a few weeks ago pre- 
 sented at the British Association for the advancement of 
 science, of a man reading, or attempting lo'read a paper on 
 the phenomena of trance, not only without any knowledge 
 of the subject, but without any conception of the means by 
 which knowledge of this subject is to be acquired, or of the 
 principles of evidence that apply to the aquisition of physio- 
 logical science in general, will be remembered and cited 
 only as a melancholy warning.* 
 
 * The above criticism applies as much to the critics of Prof. Barrett as to 
 that gentleman himself ; for in all that was said in the discussion that immedi- 
 ately followed the readingof his paper, and by the English press subsequently, 
 
BEARINGS ON HUMAN TESTIMONY 361 
 
 The delusions that the darkness connected with this sub- 
 ject has sheltered, will die, are dying already ; they would 
 die even if they could not be scientifically explained, for 
 witchcraft has been dead a hundred years, although to this 
 moment its phenomena, though fully understood, have never 
 yet been publicly and in detail elucidated. But as the de- 
 lusions disappear, the facts of trance and of the involuntary 
 life, which together constitute the real scientific substratum 
 of delusions, will proportionately rise in dignity and in 
 interest. 
 
 When the Egyptian architect, as you remember, erected 
 by the royal command, a light-house on the shore of the 
 Mediterranean, he placed, as he was directed to do, the name 
 of the reigning king conspicuously on the top, but in perish- 
 able plaster, which soon crumbled and fell ; and beneath, 
 on the enduring marble, the future saw the name of the 
 architect himself. So the delusions of which we have been 
 speaking, which have attracted so much of the world's 
 xvonder, will disappear; but in their place and out of the 
 phenomena that gave them support will be recognized a 
 positive addition to human knowledge, whi6h, in time, must 
 take its place side by side with other sciences, and become 
 the common and permanent possession of mankind. 
 
 the real fallacy in the procedure was, so far as I can learn, never suggested. 
 The study of trance, which was principally the subject of Prof. Barrett's paper, 
 is well worthy of the attention of the British Association ; but only acknowl- 
 edged authorities in cerebral physiology and pathology are competent to pre- 
 pare, or should be suffered to read essays on that subject before any body that 
 calls itself scientific. 
 
 Another evidence that this subject is yet far from the organized stage, is 
 that when Mr. Crookes began his investigations in so-called spiritualism, the 
 press urged him on, as though an eminent chemist and physicist were com- 
 petent to deal with the mooted questions in physiology ; and to complete the 
 absurdity, his reports of what he thought he saw were formally replied to by 
 other chemists and physicists, on the doubly erroneous assumption that his ex- 
 periments were rightly reported, and that any one outside of experts in that 
 branch of physiology was competent to rightly estimate and reply to them. 
 
 What Mr. Crookes and his associates did, or tried to do, with the medium, 
 Home, will, in this world never be known. Astronomy is the oldest of the 
 sciences, but the number of those in the world who are capable of reporting 
 correctly and authoritatively in regard to any alleged new discoveries in that 
 branch is very limited; and in the department under consideration, to which 
 we are but just beginning to give serious and successful attention, it may be 
 
362 A NEW THEORY OF TRANCE. 
 
 doubted whether there can be found, in Europe and in America combined, a 
 dozen individuals sufficiently expert to report with any approximation to ac- 
 curacy, what transpires in experiments of this kind. 
 
 Mr. Crookes is certainly one of the most ingenious and careful of experi- 
 mentalists in chemistry and physics, and fully deserves his great and increasing 
 fame ; but his experiments in chemistry and physics, even those that are 
 original and refined, are simple matters in comparison with physiological, ex- 
 periments with living human beings. Assuming for the moment the sub- 
 stantial correctness of Mr. Crookes' report of some of the superficial facts re- 
 lating to what was done in the presence of himself and Mr. Huggins, it is ' 
 clear that of the six sources of error that enter into all experiments of this, 
 kind, and all of which must be absolutely guarded against if the experiments 
 are to have any scientific value, not one was even thought of. For a physicist, 
 or even for a physiologist to try to explain such reports of such experiments, 
 is to be guilty of a blunder but one degree below that of the non-experts who 
 originally made the experiments ; is, indeed, to beg the whole question at 
 issue. The position of Mr. Crookes, and of Mr. Wallace, and Sergeat Cox, 
 in relation to this matter, is not at all peculiar or unprecedented ; the stream 
 of superstition through all the civilized ages is lined, on either side, with the 
 battered reputations of great and good men. 
 
 A scientific gentleman of distinction once remarked to me, that he could 
 only explain the statements of Mr. Crookes on the hypothesis of positive dis- 
 honesty. This hypothesis is at once unjust, unnecessary and unscientific ; for 
 in science everywhere simple non-expertness makes more blunders than the 
 most atrocious dishonesty. A friend of taine, a physician of unusual ability 
 and acquisition, whose conversation is always of great value to me — an ob- 
 server of far more than average acuteness and originality — is unable to attend 
 any performances where strange or supernatural events are claimed or ex- 
 pected, although a skeptic in such matters, without at once becoming en- 
 tranced ; and the accounts he gives of what he thinks he sees and hears in 
 such places, are as amusing to himself as to others. It cannot be too often 
 repeated, line upon line, and precept upon precept, that in science the prime 
 requisite is honesty, not general ability, nor skepticism, nor genius even in 
 other departments, but expert skill ; that being absent, all else is as sounding 
 brass and a tinkling cymbal. 
 
JOHN CONOLLY, M. D. 
 
John Conolly, M. D. 
 
 John Conolly, M. D., was born at the small town of Mar- 
 ket Rasen, Lincolnshire, England, on May 7, 1794. His 
 father was the youngest son of a good Irish family ; his 
 mother, Dorothy Tennyson, of the name and family of the 
 present poet-laureate of England. He was educated at the 
 small grammar-school of HedoD. 
 
 Soon after leaving school, when he was 18 years of age, a 
 commission was obtained for him in the Cambridgeshire 
 Militia Regiment, and he served several years with his regi- 
 ment in Scotland and in Ireland. On retiring from the mili- 
 tia, when only 22 years of age, he married, his wife being a 
 daughter of Sir John Collins, a captain in the navy. He 
 then spent a year of idleness in France, residing in a cottage 
 near Tours, in which town his brother, Dr. William Conolly, 
 was practicing medicine : it was the cottage afterwards 
 occupied by the poet Beranger. Here his first child was 
 born, and it became necessary to look forward to some 
 means of future livelihood. Resolving, after due considera- 
 tion, to join the medical profession, he removed with his 
 wife and child to Edinburgh, where he went through his 
 student's career, graduating as Doctor of Medicine in 182 1. 
 The title of his graduation thesis, presaging the province of 
 his future labors, was Dissertatio Inauguralis de Statu Men- 
 tis in Insania et Melancholia. 
 
 On leaving Edinburgh, he commenced practice as a phy- 
 sician at Chichester, but, his prospects not looking bright, 
 he left the town at the end of a year and settled at Stratford- 
 on-Avon, in Warwickshire. There he lived several years in 
 fairly successful practice, doing much literary work, both in 
 medical and other journals, and gaining a more than local 
 reputation. Accordingly, he was, in 1828, appointed Pro- 
 fessor of the Principles and Practice of Medicine in Univer- 
 
JOHN CONOLLY, M. D. 
 
 sity College, London — an appointment which he held for 
 three years. It was during this period that he published his 
 work on " The Indications of Insanity." His three years' 
 experience as a physician in London not having been suc- 
 cessful enough to encourage him to persevere, he resigned 
 his professorship, and, retiring to the provinces, settled at 
 Warwick, which was only eight miles distant from Stratford. 
 Here he continued his literary activity, writing many articles 
 for the Cyclopadia of Practical Medicine, which he edited in 
 conjunction with Dr. Forbes and Dr. Tweedie, and estab- 
 lishing and editing, in conjunction with Dr. (afterwards Sir 
 John) Forbes, the British and Foreign Medico Chirurgical 
 Review. 
 
 After he had been at Warwick six years, obtaining only a 
 meagre measure of success, the physicianship of the Han- 
 well Asylum fell vacant, and he became a candidate for the 
 office. Unsuccessful on that occasion, he was successful 
 a year afterwards, when the office was vacant again. It was 
 on June ist, 1839, that he entered on his duties as resident 
 physician and commenced his practical experience of the 
 study and treatment of the insane. On the 21st of Septem- 
 ber of that year he presented to the committee of visitors of 
 the asylum his first report, and in it he announced the entire 
 abolition of mechanical restraint. " No form of straight- 
 waistcoat," he said, "no hand-straps, no leg-locks, nor any 
 contrivance confining the trunk or limbs or any of the 
 muscles is now in use." The asylum at that time contained 
 850 patients, most of them from the different quarters of 
 London, and suffering from all forms of chronic and acute 
 insanity. Not again was mechanical restraint resorted to, 
 and he was able to say, after three years' experience of its 
 entire disuse, " that the management of a large asylum is not 
 only practicable without the application of bodily coercion 
 to the patient, but that, after the total disuse of such a 
 method of control, the whole character of the asylum under- 
 goes a gradual and beneficial change." 
 
 He resigned his appointment as resident physician to the 
 asylum in 1843, though he acted for some time afterwards as 
 visiting physician, and delivered clinical lectures to students 
 
JOHN CONOLLY, M D. 
 
 who attended from the London schools of Medicine. From 
 the time of his resignation until his death he resided at 
 Lawn House, in the village of Hanwell, having a consulting 
 practice in lunacy until the last few years of his life, when 
 failing strength compelled him to relinquish active profes- 
 sional work. It was by his exertions, in conjunction with 
 those of the late Rev. Dr. Andrew Reed, that the well-known 
 asylum for idiots at Earlswood was founded. His principal 
 published works were : "An Inquiry Concerning the Indica- 
 tions of Insanity," 1830 ; "The Construction and Govern- 
 ment of Lunatic Asylums," 1847; "The Treatment of the 
 Insane Without Mechanical Restraint," 1856; "A Study of 
 Hamlet," 1863. Besides these works, he published lectures 
 on Insanity in the Lancet, and many papers at different times 
 in the Medical Times and Gazette. 
 
 Soon after his resignation of his office at the Hanwell 
 Asylum, he was presented, by public subscription, with a 
 massive testimonial in silver, consisting of an allegorical 
 group of figures, representing the abolition of mechanical 
 restraint in the treatment of the insane, and with his portrait 
 painted by Sir Watson Gordon. The honorary degree of 
 D.C.L. was conferred upon him by the University of Oxford. 
 
 He died on March 5th, 1866, aged 71 years. h. m. 
 
PERSONAL IDENTITY. 
 
 By James Appleton Morgan, Esq. 
 
 Mr. Best, in his essay upon the Common Law. of Evidence, 
 remarks that the division, of Circumstancial Evidence may 
 well be termed "the Romance of the Law," and, doubtless, 
 it is---hidden away among technical terms and legal plati- 
 tudes, in lawyer's tomes in sheep and vellum, rather even 
 than in Fielding, Dickens or Dumas — that the searcher for 
 the marvelous will reap his richest harvest. If the range of 
 our inquiry should take us within this romantic tract, it must 
 not be supposed that no practical question will arise, in the 
 solution of which the two professions of Law and Physics 
 may well be concerned. 
 
 The law constantly deals with every element of human 
 procedure ; every phase of human life, from the grandest to 
 the most minute, from an arbitration between two empires 
 to the pressure of a foot-step disturbing the dew upon the 
 grassy sward, comes constantly within its ken and scrutiny. 
 This human procedure might, not unfairly, for our purpose, 
 be classified into two grand divisions, namelv: into matters 
 of Life and matters of Society. In dealing with questions 
 of Society the lawyer must study of the rights and duties of 
 men in neighborhoods, of municipal, and commercial, and 
 international law, and their myriad subdivisions. It is in 
 dealing with questions of Life, that the lawyer will find the 
 the line of his. path — like the familiar proposition in geome- 
 
 * Read December 6, 1876. 
 
3^4 PERSONAL IDENTITY. 
 
 try — meeting the path of the physician, the two, thence and 
 thereafter, to form one and the same straight line of logic 
 and of inquiry. This path we may well conceive the science 
 of Medical jurisprudence to be. 
 
 There is in this path one similarity between the physician 
 and the lawyer. They must both here set similarly to work; 
 and, just like a surgeon, must have a cadaver to dissect, or 
 a living body from which to cut an offending member, so the 
 lawyer, in pursuing a ciime against life, must first produce 
 a body upon which that crime has been committed. This 
 principle known as the principle of the Corpus Delicti, was 
 fundamental in the Latin law. " Diligenter cavendum est 
 judice ne supplicium prcecipitet antequam de crihiine con- 
 stituent. De Cofpore interfecti necesse est ut constat." 
 Or, as Lord Hale said, "I would' never convict any person 
 of murder or manslaughter unless the fact were proved to 
 be done, or, at least, the body found dead," a rule which, 
 so far as I am aware, has been invariably accepted since. 
 In a very recent case indeed — that of the People of the 
 State of New York against Edward H. Ruloff — it was over- 
 ruled, and the prisoner found guilty of the murder of his 
 infant daughter, although the child's body was not produced 
 and no trace of it could be alleged to have been found 
 (3 Park. Cr. Rep. 401). But the conviction that a dangerous 
 precedent had been pronouncedwas all but universal. Hard 
 cases make bad law. Cases constantly arise where hardship 
 appears to be worked by a strict adherence to legal rules. 
 But, once relaxed those rules re-assert themselves so em- 
 phatically, that we can only marvel at and admire the wisdom 
 of the Fathers, who could, amid the circumstantiality and 
 verbiage of individual cases, lay down rules and principles, 
 with reasoning so clear and forcible that from their conclu- 
 sions to-day there is no escape. It was not without cause 
 that they devised restraints and technicalities, the reason of 
 which, though seemingly lost in the mist of ages, it only 
 needs an effort to abolish, to make apparent beyond all 
 cavil. And so this case was speedily overruled (18 N. Y. 
 179) and the dictum of Lord Hale again asserted to be the 
 
PERSONAL IDENTITY. 365 
 
 law of the State of New York, as it is of every other common 
 law country on the globe. The term so taken from the civil 
 law is often explained to mean "the substantial general fact 
 of a crime having been committed," the body'orthe sub- 
 stance of the crime as distinguished from the particular 
 form given to it by its connection with the accused, and of 
 this substantial general fact the law will insist upon the 
 strongest, that is to say, upon absolute evidence. 
 
 Even the confession of an accused, uncorroborated or 
 made out of court without a showing of any Corpus Delicti, 
 will not dispense with a body and justify a conviction, and I 
 may here notice that it is well that it may not be allowed to 
 do so. For although confessions might seem at first glance 
 the best possible evidence which juries could desjre, they, not 
 unfrequently, are the very flimsiest and most unsatisfactory 
 possible. I wish I had time to stop here to enlarge upon the 
 demonstrated fallibility of confessions. I may say in pass- 
 ing, however, that there are at least sixteen well authenti- 
 cated cases in the books, of individuals confessing the most 
 heinous crimes of murder, when they have been utterly in- 
 nocent of anything of the sort, except the hallucination or 
 the motive which induced the statement. It is probably 
 fresh in the minds of most that only last summer a German 
 servant girl, on Third Avenue, of this city,* assured her 
 mistress, whose little boy, a child of seven, had just died 
 and been buried, that she (the servant) had poisoned the 
 boy. The servant swore to her own crime and was taken 
 into custody, and it was only when, upon exhuming the 
 child's body and examining its stomach, that no poison was 
 discovered, that against her own protest she was acquitted 
 of the possibility of the crime. And later on I purpose more 
 than a passing allusion, though in other connections, to 
 the world-renowned Boorn case, in which — despite a self- 
 constituted murderer's confession — the alleged victimwalked 
 into court and confronted the man who had sworn to killing 
 him. 
 
 * New York. 
 
366 -PERSONAL IDENTITY; 
 
 This Corpus'Delicti, this visible material substance once 
 proved, a second further step becomes necessary. This 
 second step, in its chief phase, at least, is a medico-legal 
 step, which it is all but absolutely impossible to take with- 
 out assistance- from the learned profession of medicine and 
 surgery. This" second step is the connecting of the material 
 Corpus before us, with some personality, with some human 
 identity known once to have lived and moved upon the 
 earth. As Tain narrowing my remarks nowsbMy to the 
 domain of criminal law, I will go further, and assert that 
 here the physican is not only indispensable, but absolutely 
 omnipotent. The whole possibility of a criminal trial here 
 hangs upon his word alone. It is he alone who can tell us 
 whether this body was deprived of its life by natural causes; 
 by accident or suicide, or whether a homicide has been com- 
 mitted. If the' one, there can be no trial^ as there has been 
 no crime. If the other, the law must begin its search for a 
 culprit for an indictment, and proceed to construct the com- 
 plex machinery of an arraignment.' 
 
 This all-important medico-legal process of connecting a 
 dead body or Corpus Delicti with a humanbeing once known 
 to have lived, with your permission I shall attempt to con- 
 sider to-night, under the head of "Personal Identity," and 
 under it make for convenience two sub-questions, namely: 
 
 1. How may a lifeless body and a living one be recog- 
 nized as having been, at one time, the same? And 
 
 2. How large or how small a parcel of human remains 
 can be so safely identified by medico-legal experts, in cases 
 involving life and death, as to entitle them to be considered 
 as constituting a Corpus Delicti? 
 
 Of course I do not expect to develop in this examination 
 of cases anything more than one or two general rules. Each 
 case must, of course depend upon its own circumstances. 
 The body of A will be identified in one way, and that of B 
 in another. But, if I can do no more, a digest of the cases 
 might not prove without value for reference to members of 
 this Society ; and, upon grouping these cases together, it is 
 
PERSONAL IDENTITY. '36,7 
 
 hard to conceive that sdrrie principle, in common to them 
 all, should not appear. .> , 
 
 At first this question of one's Personal Ideutity might 
 seem to be the simplest that could possibly come before a 
 court. But the fact is precisely the reverse. Even in lite 
 ■the question -whether a living man, speaking, and moving, 
 capable of being watched: and questioned, is one identity or 
 another, has proved itself, over and over again, by far, in- 
 stead, the most perplexing. Cases of mistaken Personal 
 identity have been all but: innumerable, since the days of 
 Antipholus of Syracuse, and his twin brother, Antipholus of 
 Ephesus, and the two Dromio's, their servants. "Cases of 
 Resemblance/' we remember, is the title of one chapter of 
 Pliny's Natural: History, wherein the author cites the in- 
 stances of the great Pompey, of whom personally the plebe- 
 ian Vibias was the double and counterpart; the Consuls 
 Lentulus and Metellus ; and the impostor Artemon, the 
 double of Antiochus, King of Syria. And without referring 
 to the very recent Tichbourne Trial, in which no less than 
 eighty-five witnesses — under the most rigorous and vigorous 
 cross-examination that possibly the world has ever seen^- 
 maintained positively that a certain Englishman was Sir 
 Roger Charles Doughty Tichbourne, a Baronet, while a cor- 
 responding number were equally unshaken in their convic- 
 tion that he was one Arthur Orton, a Wapping butcher, the 
 books are full of puzzles of this nature. 
 
 Jack Cade, the pretended Mortimer; Lambert Simnel, the 
 false Earl of Warwick ; Perkin Warbeck, the sham Duke of 
 York ; the various personators of Don Sebastian, the lost 
 King of Portugal; Jemeljan Pugatscheff, the sham Peter III.; 
 Padre Ottoman, the supposed heir of the Sultan Ibrahim ; 
 Mohammed Bey, the Counterfeit Viscount de Cigala ; the 
 case, in 1748, of the false Prince of Modena; the monk 
 Otrefief, .claiming to be Prince Dimitri ; Joseph, the pre- 
 tended Count Solar; John, claiming to be Earl of Crawfurd; 
 John, claiming to be Sir William Courtenay; James Annes- 
 ley, calling himself Earl of Anglesea ; Hans, claiming to be 
 Earl of Huntingdon ; Rebok, the counterfeit Voldemar, 
 
368 PERSONAL IDENTITY. 
 
 Elector of Bradenburgh ; Arnold Du Tilh (or Dutille), the 
 pretended Martin Guerre, who successfully deceived the 
 living wife so far as to live with her three years, surrounded 
 by four sisters and two brothers-in-law, and beget two chil- 
 dren, before his discovery, and whose case came before the 
 Parliament of Toulouse in 1560, wherein forty witnesses on 
 each side swore to his personality ; Pierre Mege, the fictiti- 
 ous De Caille ; Michael Feydy, the sham Claude de Verre ; 
 the claimants to the Banbury and Douglass Peerages ; 
 James Percy, calling himself Earl of Northumberland; 
 Alexander Humphreys, the pretended Earl of Stirling ; 
 William George Howard, the false Earl of Wicklow ; the 
 numerous so-called heirs of the Stuarts ; John Hatfield, 
 claiming to be the Hon. Alexander Hope; Thomas Provis, 
 calling himself Sir Richard Smythe ; Lavinia Jannetta Hor- 
 ton Ryves, who is now, or was within a few months, living 
 in England, calling herself Princess of Cumberland ; Amelia 
 Radcliffe, pretending to be countess of Derwentwater ; in 
 France, the child Francis JVoisen, who not only was the exact 
 counterpart of the child Labrie, but who had a scar on the 
 right arm and a cicatrix on the inner side of the left knee, 
 as had he (Beck. Med. Jurisprudence, i. 674; which reminds 
 me that in Covington, Kentucky, a case is said to have oc- 
 curred where two men met, each the double of the other in 
 form, stature and feature, each having lost aright leg, ampu- 
 tated at the knee, and each being blind in the left eye, from 
 accident ;) Hervagault, Maturin Bruneau, Naundorff, Au- 
 gustus Meves, and Hebert, (calling himself Richemont, 
 Duke of Normandy,) who all claimed to be the lost Dauphin 
 of France, as did, in our own country, the Rev. Eleazar 
 Williams, the Apostle to the Indians, whose marvelous story, 
 less than twenty years ago, made familiar in every circle the 
 question, " Have we a Bourbon among us ?" It is less than 
 a year ago, I believe, that three men, Carr, Finnegan and 
 Farley, after having served nearly two years in the State 
 Prison at Trenton, were discharged as having been the 
 doubles of three other men who once robbed a jewelry store 
 in Newark, New Jersey, and for which burglary these three 
 
PERSONAL IDENTITY. 369 
 
 had been convicted ; recalling the exactly identical cases of 
 the peasant Baronet, and of Frank Douglass. The latter, in 
 England, many years ago, was committed for highway rob- 
 bery on (he positive oath of the parties lie was supposed to 
 have plundered, his personal resemblance to the real high- 
 wayman being so exact as to deceive everybody. Douglass, 
 however, I believe, ultima! ely escaped conviction (Paris 
 Med. Jurisprudence, i. 222: iii. 143); in which lie was more 
 fortunate i than Baronet (born in France in 1717, see Causes 
 Celebres par Mejan, torn, iv., p. 329), who was sentenced to the 
 galleys and there kept many years, simply because he had 
 the misfortune to exactly resemble somebody else. All 
 these are proofs of the fallibility of human testimony in 
 cases of Personal Identity ; and if all these, in life, puzzled 
 and perplexed the most conscientious investigators, what 
 shall we say of the scrutiny whether a piece of bleeding or 
 mortifying flesh, or a parcel of bonus, is or is not a frag- 
 ment of a missing human identity? 
 
 Now we are told by the books that recognition in the case 
 'of a dead body must be effected, first from the features; fail- 
 ing these — and they are often so bruised as to be unrecog- 
 nizable, as in Colt's case, New York, 1842 (the New York 
 Tombs, Sutton, N. Y., 1874, p. 64), when the murderer de- 
 liberately mutilated them to prevent identification, or in 
 McCann's case (13 Sm. and Mar., 472), where the face had 
 been exposed and eaten by swine — investigation is to pro- 
 ceed by reference to marks upon the body, to clothing, or 
 to objects or things found near the remains ; and, thirdly, 
 when all these are wanting, by careful medical or anatomical 
 examination of the remains themselves, whether bones or 
 portions of flesh, to elicit facts as to the weight, age, sex, 
 stature, and date of death of the deceased ; upon which facts 
 must then depend the whole case of the accused. Let the 
 law do its best ; it is here, in this third case, bound hand and 
 foot. It cannot advance a step without medico-legal experi- 
 ence ; without that it is powerless to do justice, and the faint- 
 est attempt is certain to do irreparable injustice instead. 
 
 Recognition by feature, or by clothing or other objects, 
 
37° PERSONAL IDENTITY. 
 
 can be made by any competent witness. It is very clear, 
 however, that, failing recognizable features or material sub- 
 stances, the services of other than lay witnesses must be 
 sought. But courts need not look for. Fortunately for the 
 lawyer, at his hand, and within easy call, is a learned and 
 honorable profession, older than his own, and a class of 
 witnesses who, in every case of this character, have proved 
 themselves competent and most conclusive. 
 
 It is of incalculable importance that the witness so intro- 
 duced, at the inception of the inquiry, should be free, above 
 all things, from suspicion. He is in a position where his 
 lightest word may involve the liberty, and ultimately the life 
 of a fellow being ; and it is to the peculiar glory of the 
 medical profession, that last of all does a physican allow any 
 prejudice or suspicion or hasty suggestion of a crime to 
 anticipate his scrutiny. The rule of Dr. Beck, that every 
 possible circumstance which might have caused death is to 
 be recollected before a case is referred to a criminal court 
 by a physician, is one suggested rather than necessitated by 
 the universal bearing of physicians in court. 
 
 The commission of a crime is an inference from a corpus 
 delicti, and since the law never permits an inference from an 
 inference, it is fortunate that a body of witnesses who, from 
 education, habits and experience,are unlikely to take anything 
 for granted, is so near at hand. Who is not familiarwith hun- 
 dreds of cases in which lives have been saved by the testi- 
 mony of physicians, where a hasty word from one of them 
 might have had just the opposite result? For myself, I can 
 point to no more eminent proof of the fact, that physicians 
 may be safely relied on to observe this rule of Dr. Beck, and 
 will banish from their minds any thought of crime until it 
 is forced there by overwhelming demonstrations, than the 
 celebrated Wharton case so lately tried in Baltimore. The 
 People proved a motive for a homicide and a purchasing of 
 poison ; they traced that poison to the very hands of the 
 prisoner, and proved a corpus delicti in whose stomach the 
 poison was found, and, moreover, a body to which in life 
 the prisoner had been seen to administer matter which it re- 
 
PERSONAL IDENTITY. 37 I 
 
 ceived voluntarily into its stomach ; and yet, in the face of 
 all this and much more, eminent physicians found that there 
 was so strong a probability that the deceased had died of 
 cerebro spinal meningitis, that the jury so unanimously 
 found. Not alone in their art and practice may the profes- 
 sion of medicine claim to be the life-saving profession of the 
 world ! 
 
 It is the physician who, from the posture of a corpse, the 
 position of a wound, the condition of a bruise, the color of 
 the skin, or from a thousand other details which will more 
 readily occur to a doctor than a lawyer, must indicate the 
 whole course of a legal investigation, or stifle it at the start, 
 the physician is not only an expert ; he may be also a valu- 
 able detective. In the case of Beaugouin, who was mur- 
 dered, cut in two and thrown into the Loire, less than a hun- 
 dred years ago, the upper half of his body was discovered 
 and interred, and upon being taken up fifteen days after and 
 examined, the physician, De Ouvrad, asserted from his ex- 
 amination that the body had been hewn in two by a butcher. 
 So the fact turned out to be, and the identical butcher who 
 murdered the man wasguilotined. But to the consideration 
 of our headings : 
 
 And first, as to recognition, by features, of the Corpus 
 Delicti. 
 
 All testimony as to personal identity, while it should un- 
 doubtedly be received, should be examined with the greatest 
 care, and should, not be allowed — if resting simply on a re- 
 semblance of features — to alone justify the verdict of the jury. 
 This rule operates, says Dr. Wharton, not to exclude such 
 testimony, but only to diminish its credibility. The doctor 
 cites a case in Iowa, where a man had been murdered and 
 the head severed from the body, and by a physician pre- 
 served in alcohol. Many witnesses were called to identify 
 it. The prisoner proposed to prove, by two witnesses who 
 were physicians and surgeons — and whose knowledge and 
 attainments in their profession made them familiar with the 
 natural changes through which a human body must neces- 
 sarily pass after death — that, on account of such natural and 
 
37 2 PERSONAL IDENTITY. 
 
 inevitable changes, it was - not possible for anyone to identify 
 the head. The court properly refused to permit the evi- 
 dence of the physicians to go to the jury. It would have 
 been competent, it was declared, for the witnesses to have 
 stated the nature and character of the changes in the human 
 body produced by death within certain periods of time ; to 
 have explained to what extent these changes had operated 
 upon the head of the deceased, and their usual and neces- 
 sary effect, according to the laws of nature. The progress 
 of decay, the distortion and discoloration of the features) 
 and the consequent change or destruction of the peculiar 
 expression of the countenance by which human faces are 
 usually distinguished and identified, as shown by the head 
 in person, would have been proper facts for the witnesses 
 to have pointed out and explained to the jury. It would 
 have been for the jury then, from this medico-legal evidence, 
 to have judged of the value of the testimony as to the recog- 
 nition. 
 
 Secondly, as to the recognition by clothes or articles 
 found near the corpus delicti. 
 
 This is not always safe. Sometimes, indeed, a skeleton 
 may be identified by marks, or objects found near it. In the 
 case of Rex vs. Clewes, twenty-one years after the death 
 of a certain person, his skeleton was allowed to be identified 
 by his widow from a peculiarity about the mouth, and by a 
 carpenter's rule and a pair of shoes found in the vicinity. 
 But even in cases of the finding of an entire body a few 
 hours after death this evidence is not safe. In 1868 the body 
 of a man was found in the cupboard of a house in Hackney, 
 England. One Dr. Elias, the Medical Superintendent of an 
 adjoining hospital, recognized the body as that of a lunatic 
 under his charge, named Heasman. He recognized the 
 clothes, the name Heasman was written on the stockings 
 worn by the deceased, and the brother of the deceased was 
 also confident of the identity ; and yet, almost immediately 
 after, a stranger, totally unconnected with the hospital, 
 identified the cadaver as a totally different person by means 
 of a photograph ; and a woman, Mrs. Mary Anne Banks, 
 
PERSONAL IDENTITY. 373 
 
 positively swore that the body was that of her husband, one 
 Ebenezer Charles Banks, a commercial traveler. She and 
 her two sisters positively, upon oath in the Coroner's Court, 
 so identified the body, and stated that a particular wound 
 would be found upon the little finger ; such wound was 
 found, and this case, which produced much comment in 
 America as well as England, went far to convincing the two 
 professions of what will be the rule of courts in these cases 
 to-day, and which we have just stated in the language of Dr. 
 Wharton. 
 
 Thirdly : As to the proceeding by means of actual surgical 
 and automatical examination. And in conjunction with an 
 examination of this third rule, it is peculiarly necessary that 
 we ask our second question, namely: Supposing that the 
 corpus delicti consist not of entire human bodies or even 
 skeletons, but of fragments and portions, may the profes- 
 sional examination still proceed? How much of a human 
 body will be recognized as a body in law, as a corpus delicti 
 at all? Is the fragment of a human trunk — a limb, a hand, 
 a collection of bones, a quantity of viscera, a pile of ashes, 
 or a drop of blood — such a corpus delicti as the law will con- 
 sider sufficient evidence that a crime has been committed to 
 justify it in searching for a corresponding criminal? I be- 
 lieve that an answer to this question can only be attempted 
 by reference to the cases under this head, with which the 
 books are loaded. 
 
 In the Uzzerdook case, very recently tried at Westchester, 
 Pennsylvania, in 1873, the remnants of two human bodies 
 were found in different places. One of these was claimed to 
 be, by the defense, the body of a man named Goss, said to 
 have been burned to death, while the other -was finally proved 
 to be the remains of this same man, who, instead of being 
 burned to death, had been murdered by the prisoner. The 
 case originated in a conspiracy against an insurance com- 
 pany. The trial was distinguished by the elaborte and 
 costly circumstantiality which distinguishes all trials in 
 which wealthy corporations are parties. Between these two 
 corpori delicti — one found in the ruins of a burned building 
 
374 PERSONAL IDENTITY. 
 
 in a populous city, and the other discovered putrefying in a 
 desolate wood many miles away — a chain of evidence was 
 found so continuous and convincing as to warrant the con- 
 viction, followed by the execution, of the prisoner Uzzerdook. 
 The facts are as follows : 
 
 The man Goss, proved to have had a large insurance upon 
 his life, disappeared from the city of Baltimore on the night 
 of the 2d of February, 1872. Upon that very evening a frame 
 shop, in which he was said to have been engaged in gilding 
 picture frames and experimenting with a substitute for India 
 rubber, was almost entirely consumed by fire. In its ruins 
 near the chimney, in the centre of the building, charred 
 and blackened human remains were discovered. Mrs. Goss 
 claimed them to be the remains of her husband. From the 
 body the hands and feet were off, the skin was burned crisp, 
 and blackened. Identification by means of the features and 
 expression was impossible. Mrs. Goss testified, however, 
 that the corpse was brought home on the evening of the day 
 following the fire, and that she identified it as that of her 
 husband ; testifying, however, that she judged only by the 
 size and shape of the head, the neck and the body. In a 
 suit which she brought against the insurance companies for 
 the sums insured on his life, her father and mother also 
 were witnesses, both testifying that they observed the same 
 resemblance to Goss in the neck, head and body. Another 
 witness said, the body, when taken from the fire, resembled 
 that of a female ; but a Dr. Howard, who swore to having 
 made a careful examination of the body a year after the fire, 
 testified that it was the body of a man of about five feet 
 eight to ten inches in height, with full chest, a'nd shoulders 
 thrown back. This was on the 2d day of February, 1872. 
 On the 9th day of July, 1873, a man named Hurfford hap- 
 pened to be passing what are known as Baer's Woods, near 
 Westchester, Pennsylvania. He observed a crowd of buz- 
 zards and an offensive odor. "This led to the discovery — 
 at about sixty-five feet from the highway — of something 
 mysteriously hidden by means of leaves and a thin covering 
 of earth, with the felled limbs of trees piled above. Upon 
 
PERSONAL IDENTITY. 
 
 375 
 
 the covering being removed, a shirt colored with blood and 
 the mangled and putrefying remains of a human being were 
 displayed. Upon being examined by surgeons, various marks 
 and traces of violence were found, and the front teeth — four 
 above and four below — were discovered to have been driven 
 back into the mouth, two still adhering to the gums, and two 
 lying loose upon the tongue. It is not within our province to 
 follow the chain of testimony, the scrupulous and minute 
 investigation by which these two bodies were connected, and 
 by which one Uzzerdook, who had been a witness for Mrs. 
 Goss in the actions against the insurance company, was 
 proved, to the satisfaction of the jury, to have been the 
 murderer, the remains of whose victim were found in the 
 woods. But it is important to us to notice that the latter 
 only of the two corpses was held to be such a corpus delicti 
 as would justify the inference of a crime. 
 
 So far the principle would appear to be that only when 
 marks of violence can be discovered by physical examination 
 can we safely accept human remains as a corpus delicti. 
 The burned body might have been burned by accident. The 
 body found in the woods, mangled, hacked and hewn, 
 wrapped in bloody garments, concealed by a heap of leaves 
 and limbs of trees, could not have been deprived of life and 
 so disposed, by accident. Had this second body, however, 
 remained long enough without discovery, it is easy enough 
 to imagine that the traces of crime might not have been 
 readily apparent. In that case these would have been dis- 
 coverable only by medico-legal scrutiny. But I incline to 
 think, from the authorities, that some evidence must appear, 
 from the body itself, of its having been deprived of life by 
 the wilful act of another, before it can be considered a 
 corpus delicti. Otherwise it is not a "substantial general 
 fact of a crime having been committed " (to use the words 
 of our definition). It is a "substantial general fact '.' of a 
 death, indeed, but not of a death by crime. I am aware 
 that Bentham — whose writings on Evidence were the New 
 Testament and Gospel of.that science — asked if a criminal, 
 by causing a successful disappearance of his victim's body 
 
57 6 PERSONAL IDENTITY. 
 
 by means of its decomposition in lime or other chemical 
 menstrua, or by submerging it in an unfathomable spot in 
 the sea — the homicide being proved aliunde — could escape 
 punishment? I apprehend that the answer must be — Pos- 
 sibly not. But the rule will be disturbed with great reluct- 
 ance, and only in the strongest possible case, namely, where 
 the killing is proved by eye-witnesses ; or, if in the case we 
 have been considering, a person were actually seen to enter 
 a building, and all means of egress therefrom watched, and 
 before that same person left the building a man should be 
 seen to ignite it, and the building thereupon should burn 
 down, and the charred body of the person who had been 
 known to be within — or a charred body of a human being- 
 be found in the ruins, such a proof aliunde of the substantial 
 general fact of a homicide might dispense with the proof 
 from the body itself. But we must, nevertheless, insist that 
 the rule the law has laid down for us is the safest for the 
 community at large. By its strict application a guilty man, 
 indeed, may escape. Still, we must remember that the law 
 was not written for the benefit of one man, but for all. Not 
 to meet the individual case of the particular prisoner, 
 (whom we may happen to know, is guilty;) but to meet the 
 greatest possible number of cases, and, on the whole, to be 
 on the safe side in dealing with that whole number. To say 
 nothing of the mind of a Bentham, it would not be difficult 
 for any ingenuity to conceive of a variety of cases wherein 
 strict adherence to legal rules will work hardship. But still, 
 for all their ingenuity, I respectfully submit, the law is the 
 law, and, in its integrity, in the long run, is the safest for us 
 all. 
 
 And to prove that it is safest, let us look at the instance, 
 in 1758, afforded by the case of Eugene Aram, whose ro- 
 mantic history has been so often borrowed by fiction. 
 Eugene Aram was arraigned in that year for the murder of 
 one Daniel Clark, in 1745, thirteen years before. The prin- 
 cipal evidence seems to have consisted of a quantity of bones 
 found in St. Robert's Cave, near Knaresborough. In his 
 magnificent defense — which, though pronounced by a layman 
 
PERSONAL IDENTITY. 377 
 
 on trial for his life, and deprived of the privilege (as was the 
 custom of those days) of counsel, has scarcely been sur- 
 passed by the most eminent of accused pleaders — Aram sug- 
 gested that these might have been the bones of hermits or 
 anchorites as naturally the bones of Daniel Clark, and re- 
 ferred to many instances of such discoveries, which would 
 make the probability of there being such remains much 
 stronger than the probability of a peaceable, well-reputed 
 recluse and scholar like himself suddenly becoming a mur- 
 derer ; and dwelt upon the hprror of the mistake of which 
 the law would be guilty did it take a human life upon such 
 variable evidence. As it happened, Aram's case finally 
 turned upon the testimony of an accomplice, who became 
 state's evidence, and this danger was not experienced nor 
 alluded to by the court. But many years later, in the United 
 States, the point raised by Aram was elaborated by so mar- 
 velous an instance, that I may be pardoned for recapitulat- 
 ing it here. 
 
 In 1812 their lived in Manchester, Vermont, a man named 
 Barney Boom, who had two sons, Stephen and Jesse, and a 
 son-in-law named Russel Colvin, all living with him. Colvin 
 was an eccentric man, supposed to be insane at times, and 
 frequently absented himself for days without notice, and 
 without giving any account of his adventures. At last he was 
 missing so long that suspicions of foul play were aroused. 
 Months and years passed, and yet there was no explanation 
 of Colvin's absence. Some of the neighbors remembered 
 that the Boom brothers, very shortly after his disappear- 
 ance, had declared that Colvin was dead, and that they had 
 " put him where potatoes would not freeze." They had not 
 been on good terms with him, and this added to the preju- 
 dice against them. 
 
 Singularly enough, other circumstances began to accumu- 
 late against the brothers. Some children found a dilapi- 
 dated hat, which was recognized as the one Colvin wore at 
 the time of his disappearance. Soon afterwards a dog un- 
 covered some bones beneath an old stump, which at first 
 were pronounced to be human bones, but subsequently were 
 
37§ PERSONAL IDENTITY. 
 
 found not to be. An uncle of the boys had a dream, in 
 which Colvin came to his bedside and told him he had been 
 murdered. A barn in the neighborhood was mysteriously 
 burned, and it was at once conjectured that the murdered 
 man had been buried under it, and the fire intended to de- 
 stroy all traces of the crime. All these circumstances added 
 to the excitement against the Booms. Stephen was then 
 out of the State, but Jesse was arrested. He confessed that 
 his brother Stephen had told him, a short while previously, 
 that he and Colvin had quarreled, and that he had killed 
 Colvin by a blow on the head. The people of the neighbor- 
 hood, and for miles around, spent the next few days in 
 another search for Colvin's bones, but none were found. 
 
 Stephen Boorn was brought home. He denied the state- 
 ment of Jesse and asserted his innocence. The brothers 
 were imprisoned to await the meeting of the Grand Jury. 
 The principal witness before that body was a forger who 
 had been confined in jail with the Booms. He reported in 
 detail a confession of the murder by Jesse Boorn, and both 
 the boys were indicted. This was in September, 1819, more 
 than seven years after the disappearance of Colvin. In 
 November the trial took place. Meanwhile, Stephen was in- 
 duced by the remarks upon the hopelessness of their case to 
 confess the crime, in the expectation of mercy from the court. 
 This confession was the chief evidence against them. Not- 
 withstanding that it was drawn out by a hope of obtaining 
 a more favorable verdict, and that no body had been found, 
 as proof of the murder, or even that Colvin was dead, the 
 brothers were convicted and sentenced to be hanged on the 
 28th of January, 1820. So decisive did the testimony against 
 them appear to be, that the mother of the convicts was ex- 
 pelled from the Baptist Church, and the father held a pris- 
 oner for a time, upon the suspicion that they must have 
 been accessory to the murder. 
 
 A few of the citizens who were disposed to be merciful 
 signed a petition for the commutation of the sentence- 
 against the Booms. The Legislature voted to change the 
 sentence of Jesse to imprisonment for life, but refused to 
 
PERSONAL IDENTITY. 379 
 
 interfere with that of Stephen. Meanwhile it occurred to 
 Stephen, in an interview with his counsel, to advertise for 
 Colvin in the newspapers. Up to that point his counsel had 
 believed him guilty, but he assured them that his confession 
 was untrue and that he was innocent. The following notice 
 was therefore printed in the Rutland Herald : 
 
 " Murder. — Printers of newspapers throughout the United 
 States are desired to publish that Stephen Boorn, of Man- 
 chester, in Vermont, is sentenced to be executed for the 
 murder of Russel Colvin, who has been absent about seven 
 years. Any person who can give information of said Col- 
 vin may save the life of the innocent by making immediate 
 communication. Colvin is about five feet five inches high, 
 -light complexion, light colored hair, blue eyes, about forty 
 years of age. 
 
 " Manchester, Vt., Nov. zbth, 1819." 
 
 Newspapers traveled slowly then, and Stephen's friends 
 had but little hope that this would save him, even if his story 
 was true. Three days afterwards, (says the pamphlet of 
 Mr. Sargeant, one of the counsel in the case,) the New York 
 Evening Post copied it, and " the next day it happened that 
 the notice was read aloud in one of the hotels of New York. 
 Another man standing near, named Whelpley, said he had 
 formerly lived in Manchester and was well acquainted with 
 Colvin, and related many anecdotes and peculiarities con- 
 cerning him. Mr. Tabor Chadwick, of Shrewsbury, N. J., 
 was also standing near, and listened to the conversation, 
 which made a deep impression upon his mind On thinking 
 the matter over after his return home, it occurred to him that 
 a man then living with his brother-in-law, Mr. William Pol- 
 hemus, of Dover, New Jersey, answered exactly the descrip- 
 tion of Colvin as given by Whelpley." Finally he wrote a 
 letter to the Evening Post, giving his conclusions. Whelpley 
 saw it, went to Dover, identified Colvin, and, after great 
 effort, induced him to visit Manchester. There was great 
 rejoicing in the town, and Stephen Boorn was brought from 
 prison to fire the cannon that celebrated his deliverance." 
 
380 PERSONAL IDENTITY. 
 
 So much for a criminal trial in which medico-legal evidence 
 took no part. 
 
 We come next in the order of our inquiry to a trial, fresh 
 in the minds of many present, wherein, in spite of the deli- 
 cate and dangerous nature of the research, a man was hung 
 upon evidence depending entirely upon the recognition of a 
 very few human bones by surgeons. I allude to the famous 
 case of Dr. Webster, executed in Boston, August 30th, 1850, 
 for the murder of Dr. Parkman, in that city, on the 24th of 
 November, 1849. A careful reading of the evidence in that 
 case, I think, will lead to the conviction that the mere fact 
 of portions of a human body being found in a medical col- 
 lege, even in so unusual a place as a vault connecting with 
 a professor's apartments, hardly raised a presumption against 
 the prisoner. It was the finding, in a laboratory furnace, of 
 a number of small bones from a human skull, fused with 
 slag and cinders, by examination of which acute experts dis- 
 covered appearances indicating that the skull had been 
 fractured before being subjected to the action of the fire ; 
 besides the identification by a dentist of certain teeth which 
 he had filled with gold, as Dr. Parkman's, which really in- 
 duced the conviction. I cannot refrain here from remark- 
 ing, however, that it might not be well to place too much 
 reliance on the Webster case to-day. Had Dr. Webster 
 been tried in 1876 instead of 1850, upon the same evidence, 
 it is very probable that he would have been acquitted. For 
 if the last twenty-five years had been fruitful in anything, 
 they have been fruitful in proofs of the uncertain and un- 
 safe nature of circumstancial evidence, and of the reluct- 
 ance with which juries will convict in capital cases upon its 
 strength alone ; to say nothing of the advanced discoveries 
 in the region of what I may call the probabilities of science, 
 or of the daily increasing industry of counsel. But the case 
 of Dr. Webster at least shows in strong contrast to the Boorn 
 case, and no two could better illustrate our point. In the 
 Boorn case a man was convicted — without medico-legal evi- 
 dence, (as subsequent facts proved) wrongfully; while in the 
 Webster case themanwas convicted almost solely upon medico- 
 
PERSONAL IDENTITY. 38 1 
 
 legal evidence — (as subsequent facts proved) — rightfully ; 
 and this, although in the one case the non-professional 
 evidence in quality and quantity was overwhelming, while 
 in the other the professional evidence almost stood alone. 
 
 The Webster case had its seeming prototype and parallel in 
 one mentioned in the London Medical Journal, vols, v., 411, and 
 xv., 518, where a corpse was disinterred at Lyons, in France, 
 seven years after burial, and identified by the hair and teeth. 
 (Annual Register iox 1829, page 189.) In that case M. Orfila 
 was asked if a body removed from the grave after such a 
 lapse of time could possibly afford proofs of poison, and if 
 so, in what manner such an examination was to be con- 
 ducted. To which he replied that it was very probable the 
 body was already reduced to ashes, but that, nevertheless, 
 if a sort of blackish coom was found at the sides of the 
 spinal column, chiefly in the lumbar and dorsal regions, that 
 mass might be analyzed in the manner pointed out in his 
 work on Toxicology. And, again, in the trial of Cook, at 
 Leicester, in 1834, a parallel is furnished. In that case, 
 Cook, after burning the body of the victim, was convicted 
 by means of a portion of the flesh of the murdered man 
 being found, sufficiently large lo be identified as belonging 
 to the body of a male adult. (Annual Register for 1632, page 
 271.) 
 
 But the very prototype and pattern of the Webster case 
 was the case of Theodore Gardelle, tried for the murder of 
 his mistress, at the old Bailey, in 1761, which, as proving at 
 least that there is nothing new under the sun, we will briefly 
 recapitulute from the account given in Vol. II., Newgate 
 Calendar, page 295. Gardelle was a foreigner, a native of 
 Geneva, who lodged at the house of a Mrs. King in Lincoln's 
 Inn Fields; this Mrs. King subsequently becoming his mis- 
 tress during his residence there. Gardelle one day being 
 something of an artist, painted her picture, and did not 
 make it handsome enough to suit her. Upon this trivial 
 pretext, at one time when they were alone in the house they 
 quarreled, and the quarrel growing to blows, Gardelle finally 
 stabbed the woman with a sharp ivory-pointed comb in the 
 
382 PERSONAL IDENTITY. 
 
 throat until she died. He then put the body into her own 
 bed, and covered it with the bed clothes, after which, ac- 
 cording to his own story, he fainted away at the thought of 
 what he had done. The murdered woman's maid entered 
 the room, however, he came to himself, and sent the maid 
 off upon some pretext of an errand. He seems thereafter to 
 have proceeded, with the utmost coolness, to discharge the 
 maid, to strip the body, to carry it into the garret, and there 
 at his leisure to hew it to pieces, and to dispose of it in 
 parts. The entrails he emptied into the necessary, and the 
 bones and solid parts he burned deliberately in the garret. 
 At the end of a week, suspicion having been aroused, small 
 fragments of half-burned bones were found in a fire place 
 in the garret, and in the cock-loft they found the private 
 parts, one of the breasts, and other portions of a female 
 body. Gardelle was convicted, and hung in chains on 
 Hounslow Heath, in the year we have mentioned. 
 
 We seem to have come, therefore, to the fact that very 
 small portions of a human body may constitute, under cer- 
 tain circumstances, a corpus delicti. I am not aware that 
 a conviction has ever been obtained upon more minute par- 
 ticles or traces than those found in the Webster and Gardelle 
 cases. In 1868 a case did come before a court wherein the 
 only corpus delicti alleged, consisted in a pool of blood 
 mixed with vicera, supposed to have been portions of a 
 human brain. 
 
 The circumstances were something as follows: A vessel 
 on the high seas numbered among its crew two men, named 
 Parker and Lambert, respectively. An animosity was known 
 to have existed between them. One evening when Lambert 
 was at the helm, the captain or some one in authority on 
 deck, ordered Parker forward to look for land. He went, 
 and this was the last ever seed of him, alive or dead. A 
 large pool of blood, mingled with a whitish brown sub- 
 stance, which those finding it — albeit they were sailors and 
 not surgeons — supposed to be human brains, was found upon 
 the forecastle deck. This spot probably was cleaned away 
 very shortly after, but sufficient evidence of .there having 
 
PERSONAL IDENTITY. 383 
 
 been such a spot seems to have been admitted. The captain 
 and crew seemed to have concluded from their own obser- 
 vations that the man Lambert had called somebody to re- 
 lieve him at the wheel, had followed Parker forward, brained 
 him with an axe from behind, and pitched the body over r 
 board. At any rate, he was put in irons and brought into 
 this port, where he was tried in the United States Court, be- 
 fore Judge Benedict, for murder on the high seas. But the 
 Court or at least the Jury failed to find that the pool of 
 " blood and brains " was such a corpus delicti as would 
 justify them in convicting anybody. 
 
 It will be seen that this case differs from certain other 
 cases of alleged murder on the high seas, in that, if mur- 
 dered, traces of the body, or at least of the matter once 
 entering into the composition of a human body, were found 
 on the deck. In Hindmarsh's case (2 Leach Crown Law, 
 569), the accused was actually seen to throw the body of the 
 missing man overboard, but his counsel contended that, as 
 it was 'possible, however improbable, that another ship 
 could have rescued the man, no conviction could be had for 
 his murder as long as there were a possibility of his being 
 alive; which (although the prisoner in that case was exe- 
 cuted upon conviction upon other grounds) seems to be good 
 law. And so in cases of infanticide. Courts hold very 
 strictly that the corpus delicti must be shown beyond any 
 reasonable doubt. 
 
 But we nee'rl not multiply instances. A sufficiency of 
 cases, I think, have been referred to, to justify us in appre- 
 hending that the difficulty of separating the testimony as to 
 the corpus delicti from other evidence will prevent our lay- 
 ing down precise rules. We have seen, on the one hand, in 
 the Uzzerdook cast-, that the personal identity of at least 
 one of the remains was arrived at by evidence as to the 
 movements, the actions, and the spoken and written words 
 of living persons, and the circumstances under which they 
 were done and said. We have seen, on the other, in the 
 Lambert case, that the jury positively declined to find, 
 in a pool of blood and animal matter, any corpus delicti at 
 
384 PERSONAL IDENTITY. 
 
 all, even when circumstances, and acts, and words strongly 
 suggested that the blood and the animal matter was portion 
 of a human being. Even when the matter was found on the 
 forecastle deck of a ship at sea, out of sight of land or other 
 vessel, and when a human being, one of the crew, was miss- 
 ing, who had a moment before stood upon that forecastle 
 deck, and this, besides, even when, (as it actually appeared 
 in this trial), Lambert, in a state of intense excitement, had 
 followed him forward, and returned alone with a hatchet in 
 his hand. In the one case the corpus delicti without the 
 evidence would not have satisfied the jury, and in the other 
 the evidence without the corpus delicti did not. 
 
 Even in the Webster case — which, with the single excep- 
 tion of the Gardelle case, must so far stand unparalleled as 
 the only case where fragments of a human body, unrecog- 
 nizable by ordinary investigators, were actually identified 
 after passing through an intense chemical heat, intended to 
 utterly destroy them — all recognition would probably have 
 failed had it not been for certain artificial matter, namely, 
 the gold introduced into the murdered man's teeth by a 
 dental surgeon. But, as we have said, had Dr. Webster been 
 tried in 1876 instead of 1850, he would, doubtless, have gone 
 back into the sunlight a free man. And his acquittal would 
 only, indeed, have been another instance of that benign 
 charity of the law, which would rather let ten guilty men 
 slip through her fist than see an innocent man suffer, and 
 which mercy to the individual is, after all, nothing more or 
 less than unrelenting justice to the State. 
 
 The case of Eugene Aram did not develop the danger of 
 this sort of corpus delicti evidence. But the romantic and 
 miraculous Boorn case, which we have cited full, forty- 
 four years later, did demonstrate how unjust it might be to 
 hang a man on the strength of finding certain bones, even 
 when all the circumstances seemed to identify them, and 
 even when the prisoner himself confessed to have murdered 
 the very man to whom society had assigned the bones dis- 
 covered ! 
 
PERSONAL IDENTITY. 385 
 
 Verily, in our rules of Law lies our only safety. We may 
 carp at them when we see a guilty man escape the gallows 
 he has earned. But, supposing you or I were unjusly ac- 
 cused? We would be very thankful for those same rules of 
 law, then ! 
 
 But in all these cases the reliance of the law upon the 
 medical profession is most manifest ; and guided by ihe facts 
 and experiences of each individual case, the two rules Ave 
 have so far eliminated will seem to be the rules for the guid- 
 ance of the physician when called upon for his opinion in 
 cases of personal identity, namely, 
 
 First, That he shall be the first to suspect a crime; and 
 
 Secondly, That his opinion must be grounded on his phys- 
 ical knowledge of the matter examined, and not on the facts 
 of the case, which are for the jury alone ; that is to say, his 
 examination must be purely anatomical and material. It is 
 for the jury, and not for him, to suspect, and to say whether, 
 from his testimony, united with the other evidence as to the 
 res geslce in the case, it is likely that a crime has been 
 committed. 
 
 I have before remarked that the law will not permit an 
 inference from an inference, but, if at all, will draw the infer- 
 ence itself from a state of facts sufficiently proved ; and in 
 drawing this inference the court does nothing more than 
 apply, under rule and sanction of law, a process of reason- 
 ing such as would occur, under the circumstances, to the 
 mind of any intelligent or reasonable person — the force of 
 which reasoning rests altogether on experience and obser- 
 vation, the course of nature, the constitution of the human 
 mind, the motives of ordinary human action, the habits of 
 society, the usages of men in neighborhoods and the like. 
 Although, therefore, the physician's testimony is absolutely 
 the indispensable guide of the court, it is, nevertheless, 
 only the guide of the court's inference, and therefore must 
 not, itself, be an inference. The evidence of the physician 
 must therefore consist, first, of the facts themselves; and 
 second — not of his inference from the facts — but of his pro- 
 fessional AND SKILLED AND EXPERIENCED KNOWLEDGE OF THE 
 
 cause of those facts. And in forming his opinion, it is for 
 
386 PERSONAL IDENTITY. 
 
 the physician to remember that his is the one great excep- 
 tion to the rule which rigidly excludes opinions, an excep- 
 tion founded on the maxim of Littleton, "cuilibet in sua 
 arta perito est credendum." Every man is considered skill- 
 ful in his own profession The opinion of witnesses possess-' 
 ing peculiar skill is admissible whenever the subject matter 
 of inquiry is such that inexperienced persons are unlikely 
 to prove capable of forming a correct judgment — whenever 
 a knowledge of the subject matter involves more or less 
 knowledge of any science attainable by course of study, 
 preparation or experience. 
 
 Ordinarily this rule as to opinion evidence is qualified by 
 another rule, namely, that scientific men called as witnesses 
 may not give their opinions as to the general merits of the 
 case, but only as to the facts already proved. In cases of 
 Personal Identity it is easy to see that, at a proper stage of 
 examination, this qualifying rule is altogether removed, and 
 the physician's opinion as to the identity is indispensable. 
 Upon it may hang the life of an innocent man, and we have 
 seen that he may place his life with confidence in the hands 
 of the physician. " It would not be easy," says the Mr. Best 
 before quoted, after a long examination of this class of evi- 
 dence, "to overrate the value of the evidence, in difficult 
 and delicate cases, given by medical men and physiologists, 
 as witnesses in courts of justice." 
 
THE PLEA OF INSANITY. 
 
 By ALFRED L. CARROLL, M. D., 
 
 President of the Richmond County Medical Society, Member of the 
 Society of Neurology, etc., etc.* 
 
 It is not the purpose of this paper to attempt a definition 
 of insanity in the abstract. Jurisconsuls and physicians 
 alike have ever failed, and ever will fail, to establish an un- 
 varying "norm " of mental function which shall be applic- 
 able to all cases ; and this for the reason that each individual 
 problem involves the consideration of such shifting factors 
 as congenital temperament, training, habit and other per- 
 sonal circumstances ; John Doe's insanity consisting in his 
 departure from the mental state which is natural to himself, 
 not in his difference from the mental state which is natural 
 to Richard Roe. When the boisterous hoosier vents his un- 
 tutored animal spirits 'in vociferous tune and saltatory 
 "break-downs" in public places, we do not doubt his sanity, 
 for, as he himself would say, "It's the nature o' the beast ;" 
 but if an unusually grave professor of philosophy v^ere to 
 indulge in similar outbursts, we should more than suspect 
 him to be mad. An eminent British alienist recounts an 
 instance in which the wearing of a white hat was the first 
 marked indication of lunacy ; not that a white hat in itself 
 shows weakness in the head it covers, but that the wearer 
 in question was a clergyman who had theretofore always 
 been a great stickler in the details of his clerical costume. In 
 brief, the nearest approach to a verbal description of insanity 
 is to call it a departure from the individual 's natural mode of 
 thought and action, arising from the subjective change — i. e , not to 
 be accounted for by changed external conditions ; or to put it in 
 
 * Read February 7, 1877. 
 
388 THE PLEA OE INSANITY. 
 
 the form of the algebraic formula on which the modern 
 scientific method insists, if we represent a man's original 
 character by a, his training and habit by b, and his present 
 peculiarities of conduct by c, then, in any given case, 
 insanity=a b plus or minus c. 
 
 Of course this equation does not technically exclude 
 transient disturbances, like tlie delirium of fever, etc., nor 
 will it meet all the quibbles of cross-examination ; but it 
 will suffice for the comprehension of the general reader, and 
 is, moreover, efficient for practical working, in the vast ma- 
 jority of instances. So significant is the incongruity of 
 present and past demeanor, that a recent writer on the sub- 
 ject even affirms that if an habitually eccentric person were 
 all at once to become like his more sober-minded neighbors, 
 the alteration should be regarded as portentous of impend- 
 ing lunacy ; which seems very much like saying that if a 
 delicate person were to cease coughing and begin to gain 
 flesh and strength, we should suspect that consumption 
 was about to declare itself. 
 
 The aspect of insanity most interesting to the public is 
 that which relates to criminal actions, especially to homi- 
 cide, since it has latterly become the fashion with counsel 
 for the defense to impress upon the juryman of the period 
 that killing is prima facie evidence of mental unsoundness, 
 and to retain medical experts as special pleaders — i*ot to 
 give an impartial scientific opinion, but to concoct the most 
 ingenious case for the defendant, until many people are in- 
 clined to think that the professed "mad-doctor" looks on 
 every one except himself as insane. 
 
 It is beyond question, however, that there are numerous 
 phases of insanity clearly distinguishable by a professional 
 observer, but not easily to be perceived by an unpracticed 
 eye ; and the dispute between law and medicine over these 
 obscurer forms of mental disease arises from the fact that 
 the legal notion of insanity remains unaltered from a past 
 age, when nothing short of total dethronement of reason 
 was recognized as lunacy, whilstmodern medicine has learned 
 to detect earlier stages and less-marked varieties of affec- 
 tions of the brain as well as of the other organs. Even in 
 
THE PLEA OF INSANITY. 389 
 
 the most advanced legal opinions, two characteristics insisted 
 on as essential to insanity are, inability to distinguish right 
 from wrong, and the existence of delusion ; notwithstanding 
 that almost every asylum affords abundant examples of lu- 
 nacy — and dangerous lunacy — without delusion, and that 
 every attendant on the insane can testify to the knowledge 
 of right and wrong manifested by many of his most mis- 
 chievous wards. The very furtiveness which marks the 
 misdeeds of numerous persons who are indisputably mad, is 
 in itself indicative of their consciousness of wrongdoing ; 
 the kleptomaniac, for example, does his insensate purloin- 
 ing with as stealthy care to avoid detection as the profes- 
 sional thief ; he is fully aware of the distinction between 
 meum and fuum, but his will is not strong enough to deter 
 him from a larceny which he would be ready to reprehend 
 if committed by another. 
 
 But even supposing that forensic doubts of diagnosis were 
 set at rest, the question would remain, whether all these 
 less-defined cases of lunacy ought to be excluded from the 
 operation of criminal law ; and this question would be un- 
 hesitatingly answered in the negative by a few, at all events, 
 of the ablest alienists, who, when they certify to a patient's 
 insanity, do not necessarily mean to imply that he is unac- 
 countable for any and all of his actions. In other words, 
 there is a distinction to be drawn between insane criminals 
 and criminal lunatics; and it is quite possible that a person 
 whose insanity would absolve him from responsibility in one 
 direction may commit crime from a sanely criminal motive — 
 if such a paradoxical expression be permissible. In any 
 given case, the first question to be considered is, whether 
 the criminal act was the direct outcome of the actor's in- 
 sanity; the second, whether, if so, the person was incapable 
 of resisting the insane prompting. The propositions thus 
 suggested, which have been affirmed by British jurists, arc 
 resolutely opposed by Maudsley* and his followers, who, 
 forgetting that the penal code regards not the moral sinful- 
 ness of an offense, but its injuriousness to society — punish- 
 ing larceny more severely than the morally worse breach of 
 * "Responsibility in Mental Disease." 
 
39° THE PLEA OF INSANITY. 
 
 trust — are inclined, if not to look on crime as in all instances 
 "the fruit of madness," and the necessary result of indi- 
 vidual organization from the tyranny of which no one can 
 escape, to insist, at least, that he who is in any respect of 
 unsound mind, should be in all other respects exempt from 
 legal accountability, on the ground that even in mono- 
 mania "the rest of the mind is in a more or less marked 
 state of moral or effective alienation ;" that a person does 
 not, when he becomes insane, take leave of his human pas- 
 sions nor cease to be affected by ordinary motives, and when 
 he acts from one of these motives he does not, by doing so, 
 take leave of his insanity." But Maudsley himself is forced 
 to admit "some measure of responsibility in some cases." 
 In speaking of the subjects of moral insanity, he says : "All 
 the responsibility which they are capable of feeling is that 
 which springs from a fear of punishment. But experience 
 shows that this apprehension does influence some of them 
 beneficially, and that the actual infliction of punishment may 
 do them good ; that in some few instances, at any rate, it is 
 the best treatment which can be used;" and he virtually 
 avows the sentimental nature of his argument in saying: 
 "Abolish capital punishment, and the dispute between law- 
 yers and doctors ceases to be of practical importance. 
 There can be no doubt that the insane inmates of asylums 
 are to some extent deterred from doing wrong and stimu- 
 lated to exercise self-control by the fear of what they may 
 suffer in the way of loss of indulgence or of the infliction of 
 a closer restraint if they yield to their violent propensities;'' 
 although, even where he imputes responsibility to a crimi- 
 nal, instead of sentencing him in anger to a prison, he would 
 consign him more in sorrow than in anger to the seclusion 
 of an asylum. 
 
 Granting that an essential condition of insanity is the pre- 
 dominance of certain ideational or emotional states over 
 volitional control, it does not follow that these states influ- 
 ence the whole range of conduct of the individual. It is a 
 matter of common observation that a person whose reason 
 is inoperative in some respects, mayexeicise perfect will- 
 power over his thoughts and actions in others; intellectual 
 
THE PLEA OF INSANITY. 39 1 
 
 labor involving the closest concentration of the faculties has 
 been done by patients incapable of resisting the most pre- 
 posterous and groundless delusions ; a large part of Conte's 
 wonderful work was done while he was an incurable inmate 
 of a maison de saute; nay, Maudsley goes so far as to affirm 
 that the power of stepping out of the beaten track of 
 thought and originating a new line of reflection is a common 
 indication of the "insane neurosis." The self-control of 
 lunatics may be carried still farther : "Nothing is more cer- 
 tain than that a monomaniac will sometimes conceal or deny 
 his delusions, dissemble his feelings, and regulate his conduct 
 accordingly, when he has a strong motive to do so — whether 
 this be a lively fear of suffering or a strong hope of gain ;"* 
 and many instances are recorded in which such self-restraint 
 has been maintained persistently for long periods of time, 
 insane persons having successfully simulated sanity to 
 obtain release from an asylum or to avoid being sent 
 thither. 
 
 With the understanding that insanity, like "heart disease" 
 or "liver disease," is a genetic term, including various forms 
 of brain disorder, let us glance at the different conditions of 
 which homicide may be the- outcome, and see what applica- 
 tion of the foregoing remarks can be made to them. 
 
 Little consideration need be given to the acts done by 
 idiots or demented persons out of unreasoning mischief or 
 mere imitation. If the imbecility be evident — and in such 
 cases there can be no doubtful diagnosis — of course legal 
 responsibility cannot exist. But it would be well for jury- 
 men to bear in mind that actual imbecility is meant, involv- 
 ing ignorance of consequences, and shown in the whole 
 range of the individual's conduct and past history ; not the 
 mere circumstance that he is somewhat below the average 
 in intelligence. There may be instances in which stupidity 
 might be regarded as modifying responsibility, perhaps, but 
 these belong rather to ethics than to medicine. 
 
 Neither can their be any question of the irresponsibility 
 of persons who commit violence under the influence of gen- 
 eral mania, in which all the faculties are so manifestly de- 
 
 * Maudsley, op. citat. 
 
39 2 THE PLEA OF INSANITY. 
 
 ranged that the least practiced observer can readily detect 
 the craziness. Although many chronic maniacs undoubtedly 
 " know as well as any one that what they do is wiong, and 
 they delight in doing it because it is wrong:,"* no one who 
 has ever seen such cases would on this account subject them 
 to legal penalties. The only difficulty likely to arise under 
 this head is where homicide has been committed in an attack 
 of acute mania of brief duration, from which the patient has 
 quite recovered. Here it may not be easy to obtain an ac- 
 curate account of all his symptoms at the time of the out- 
 break ; but something more than an outburst of temper 
 should be proven. In such cases (we are not now speaking 
 of impulsive insanity) the maniacal state is shown by the 
 sufferer's entire conduct, not by the isolated act of violence. 
 Moreover, although the access of acute mania may be more 
 sudden than that of any other form of lunacy, its approach 
 is, in the vast majority of instances, heralded by premoni- 
 tory indications of marked significance, and we shall' usually 
 hear, besides, of a " neurotic " temperament ; for, though a 
 healthy brain may be gradually deranged by prolonged nnd 
 unceasing worry, a sound mind is not quickly unbalanced 
 by present events. 
 
 But, aside from cases of acute or chronic general mania, 
 in which incoherence of thought and perversion of reason 
 proclaim the disease unmistakably, we may have to deal with 
 partial mania, wherein the mind is clear in most of its opera- 
 tions, aberrant in but a few directions ; and this it is which 
 oftenest furnishes food for medico-legal discussions. It is 
 beyond dispute that such a condition exists ; in Maudsley's 
 own words, "A man maybe insane upon one point and sane 
 in all other respects ;" the controversy is solely whether one 
 so partially deranged should be exempt from accountability 
 for crime committed on the sane side of his character; and 
 with curious logic, immediately after the statement above 
 quoted, Maudsley maintains the doctrine of irresponsibility. 
 The same inconsistent theory is upheld by our laws, which, 
 whilst admitting the civil competency of a partially insane 
 person under certain circumstances to enter into contracts 
 * Blandford. "Insanity and its Treatment." 
 
THE PLEA OF INSANITY. 393 
 
 or to make a will, nevertheless declare that no act done "in 
 a state of insanity " is pun^hable as an offense — a declara- 
 tion which is always interpreted as covering crimes having 
 no possible relation to the criminal's partial insanity. 
 Among the medical men who advocate this extremely leni- 
 ent construction cf the criminal code, the arguments ad- 
 vanced rest upon the veiy gnat difficulty sometimes ex- 
 perienced in tracing a connection which really does exist in 
 the lunatic's mind between his delusion and his apparently 
 inconsequent act. Much stiess is laid upon the exceptions 
 to Locke's rule, that madmen reason correctly from false 
 premises, and examples are adduced to show that the reason- 
 ing may be as insane as the premise : as, where a mono- 
 maniac, believing himself to be Christ, did unchristian 
 violence to attract public attention to his fancied mission. 
 Hence it is urged that, "The right problem for a court of 
 justice to place before a scientific witness is to trace a con- 
 nection, not between the delusion and the act, which maybe 
 undetectable — or, if detectable, such as would not excuse 
 the act if the delusion were true — but between the disease 
 and the act."* Whilst acknowledging the general fairness 
 of this proposition, certain particular qualifications are re- 
 quired to render it satisfactory. We may admit that oc- 
 casionally in cases of partial mania, even where the patient 
 seems rational on most subjects, paroxysms of uncontrollable 
 violence may occur, during which his actions are scarcely 
 more than automatic, and he is as irresponsible as the 
 sufferer from delirium. In a much larger class of cases of 
 monomania the emotions and passions are exalted and easily 
 excited ; but in these the question will arise whether the 
 patient is legally distinguishable from a quick-tempered 
 person, whose impulses are viitually uncontrollable in his 
 anger, but who is nevertheless punished for yielding to 
 them; the point at issue is practically if ''heat of passion" 
 be a valid plea for a partially insane client and invalid for 
 a nominally sane one. 
 
 Cases wherein homicidal acts unmistakably spring from 
 delusion are also divisible into two categories, as to whether 
 
 * Maudsley, op. citat. 
 
394 THE PLEA OF INSANITY. 
 
 the delusion, if true, would or would not justfy the deed. 
 If a loving parent kill his child in obedience to an imagined 
 divine command, we cannot impute criminality to him more 
 than to the patriarch Abraham ; if a man be insanely con- 
 vinced that the person whom he attacks in supposed self- 
 defense was about to take his life, we must judge him as we 
 would a person of sound mind under actual similar circum- 
 stances. There are, however, on the other hand, instances 
 where hatred, revenge and other vicious motives are grati- 
 fied on provocation which would be trivial, even if it were 
 real. A monomaniac whose insanity is so partial as not to 
 incapacitate him for ordinary business or social intercourse 
 is possessed by the delusion that some casual acquaintance 
 has blackened his character or supplanted him in his mistress' 
 affections, and thereupon maliciously murders his fancied 
 traducer or rival, or he broods over and executes mortal 
 vengeance for a still less grievous imaginary affront, show- 
 ing that he is wicked as well as insane. Whether here the 
 insanity should cover the wickedness, is a query which 
 medical experts show a growing inclination to answer in the 
 negative Hammond* says: "If I entertain the delusion 
 that a certain person has injured me, I may be insane ; but, 
 even if I am, I ought to be punished if I kill the individual 
 who I imagine has done me a wrong," and he draws a broad 
 distinction between persons who are "at the same time in- 
 sane and responsible for an infraction of the law' 1 and those 
 " whose intellectual faculties are so perverted or destroyed 
 as to render them absolutely unaccountable for their actions," 
 advocating the infliction of the extreme legal penalty upon 
 the insane person whose delusions are not such as would, if 
 true, justify a homicide." Harsh as this view may seem at 
 a first glance, it becomes scarcely more than equitable 
 when we considerhow often homicides of such sort are per- 
 petrated after evident premeditation, and followed by care- 
 fully-devised measures to avoid detection. 
 
 Outside of these categories we come to cases in which— - 
 conceding all that can be claimed as to the difficulty of fol- 
 lowing up the sequence of an insane person's ideas — the 
 
 * "Insanity in its Relations to Crime." 
 
THE PLEA OF INSANITY. 395 
 
 criminal act is manifestly disconnected from any delusion, 
 and prompted by a deliberately criminal intent. Just as the 
 "delusion of persecution" could not excuse a man for 
 committing a forgery with willful purpose to defraud, 
 so neither it, nor, a fortiori, any less combative delusion, 
 should excuse the commission of murder out of sheer venge- 
 ance or for the sake of robbery; and yet, every year, under 
 the absurd phrasing of our statutes, this excuse is accepted 
 in our courts, bringing scandal upon both lawand medicine, 
 until a diagnosis of partial insanity is sought as a kind of 
 letter of marque to permit unlimited ruffianism. As a recent 
 writer* says : "It is well known that some lunatics are vici- 
 ous as well as mad, and that these sometimes basely take ad- 
 vnntage of their situation and exhibit cool and calculating 
 villainy." Even among recognized lunatics in asylums, we 
 are told "that there are many of them who, although of un- 
 sound mind, are yet regulated by rational motives, and are 
 as capable as sane men of appreciating the nature of an 
 illegal act, of foreseeing its consequences, and of exercising 
 self-control. We are told that insanity may be partial, and 
 may be confined to certain regions of the mind, leaving 
 those who suffer from it free from durance, and of. visfurous 
 will in all the ordinary relations of life. We are told that 
 the insane may be deterred from crime by the dread of 
 punishment, and that they are now presuming upon the im- 
 munity from punishment which they have hitherto enjoyed, 
 and are giving license to their evil passions — to jealousy, 
 rage and revenge — safe in the knowledge that they are in- 
 sane;" and of such it is added : "If it can be shown con- 
 clusively that a lunatic confined in an asylum, who is in 
 possession of adequate powers of self-control, has com- 
 mitted a premeditated murder, instigated by some rational 
 motive altogether independent of his particular mental 
 aberration, there can be no good reason why that lunatic- 
 should not be treated like any ordinary criminal." This 
 common-sense view may, of course, be met by the theo- 
 retical objection that no insane person possesses "adequate" 
 self-command ; but we find Maudsley himself admitting that 
 
 _ * British Medical Journal, No. 760. 
 
39^ THE PLEA OF INSANITY. 
 
 "a practical experience of the insane teaches us what a 
 power of self-control even they sometimes evince when they 
 have a sufficient motive to exert it. The fear of suffering 
 by yielding to their insane propensities suffices, in many in- 
 stances, to hold them in check ; the occasional concealment 
 of actual denial of their delusions, if they have something to 
 fear from the discovery of them or something to gain by 
 the concealment of them, testifies to a power over them- 
 selves which sane persons might sometimes envy." 
 
 Thus far we have been concerned with cases of what is 
 called "intellectual insanity," wherein, by supposition, no 
 doubt exists as to the dingnosis of the disease ; for although 
 there may be some instances in which the symptoms are too 
 obscure to be discovered in a single interview, sufficient 
 care and time will, as a rule, enable an expert physician to 
 detect the malady with certainty. At all events, such forms 
 of lunacy are never to be inferred merely from the com- 
 mission of a criminal act. 
 
 But, passing from these, we reach a far more puzzling 
 series of sudden outbursts, grouped under the heads of 
 "affective," "emotional," "volitional" or "impulsive" in- 
 sanity, characterized not by delusions or other marked dis- 
 turbance of intellect, but by the predominance of instinct- 
 ive impulse over volitional control. As regards these, a 
 broad distinction, from the juryman's point of view, may 
 be made between acts of purposeless violence, done in a 
 state of actual unconsciousness analogous to acute mania, 
 and those done with purposive vindictiveness. Thus an 
 epileptic patient may have after a fit — or in place of a mus- 
 cular fit — a paroxysm of furious mania, during which he will 
 commit purely automatic violence; or he may be conscious 
 of the approach of the "masked epilepsy," and warn those 
 about him of the impending danger; and it must be ad- 
 mitted that in certain rare instances epilepsy may manifest 
 itself solely by such uncontrollable mental convulsions, in a 
 person who has never shown bodily indications of the 
 malady. There are, however, other epileptics whom it is 
 sought to excuse for intentional assaults on the ground that 
 they are morbidly irritable and prone to commit violence on 
 
THE PLEA OF INSANITY. 397 
 
 the slightest provocation ; that, in brief, "all their passions 
 acquire extreme energy." How much weight this argu- 
 ment ought to have, must be determined on the individual 
 merits of each given case; as a general proposition, it is no 
 more valid than would be the allegation that an irritable and 
 violent temper should absolve a non-epileptic criminal from 
 penalty. A rule with very few exceptions is that the deeds 
 for which epileptic insanity may be accepted as an exculpa- 
 tion are done very violently, without motive, premeditation 
 or secrecy, and are followed by neither remorse nor even 
 remembrance. The chief characteristic of epilepsy, whether 
 in its mental or in its physical phase, is unconscious auto- 
 matism ; and in opposition to the forensic quibbling of the 
 day may be cited Maudsley's" avowal, "that an epileptic 
 person may be quite as sane as one who is not so afflicted, 
 and, in the event of his doing murder, quite as responsible." 
 
 Of the condition known as "transitory mania" little need 
 be said, save that most examples of it probably belong to 
 epilepsy, and that in the few which remain there are usually 
 antecedent and present indications of mental disease or of 
 very manifest tendency thereto. " Possibly there may have 
 been a sudden outbreak of insanity which ceased as suddenly 
 as it came on ; but, unless there was strong evidence of it 
 other than the crime, it would be proper to refuse to 
 admit it."* 
 
 Somewhat analogous is the state of mind— or, rather, ab- 
 sence of mind — which has passed into a by-word under the 
 name of "morbid impulse," where a person, acting "with- 
 out passion, without delusion, without motive," is irresistibly 
 impelled by an instinct "like the craving thirst for drink" 
 to commit murder or other criminal deed which "his reason 
 disapproves and his moral nature abhors, aghast at himself 
 the while." The essential feature of this alleged form of 
 disease is that, without apparent derangement of reason or 
 loss of consciousness, the patient is possessed bv "a violent 
 impulse which, swallowing up reflection and will, irresist- 
 ibly utters itself in convulsive action. "f But when we come 
 
 * Maudsley, op. citat. 
 t Maudsley, op. ci/tit. 
 
39§ THE PLEA OF INSANITY. 
 
 to look at the matter more closely, we find that even the 
 strongest advocates of the doctrine of irresponsibility en- 
 tertain doubts as to the existence of such an uncomplicated, 
 single-symptomed malady. Maudsley acknowledges that 
 " in tnost of the genuine cases, symptoms of derangement in 
 addition to the morbid impulse, either antecedent to or con- 
 comitant with it will be discovered, if a careful enough ex- 
 amination be made," and, following Bucknill, ascribes many 
 examples of paroxysmal violence to the earlier stages of re- 
 cognized varieties of insanity, or to the epileptic category. 
 Blandford, showing that "all insanity is impulsive, all insane 
 patients are liable to commit such acts," affirms that "the 
 act which is supposed to be committed under the inriuence 
 of insane impulse is rarely, if ever, the first symptom of in- 
 sanity or brain affection shown by the alleged lunalic," and 
 teaches that "if we could sufficiently examine all the cases 
 of so-called 'impulsive insanity,' and really ascertain the 
 entire history and phenomena previous and subsequent to 
 the commission of the act, we should find many other signs 
 and symptoms of insanity, and should be able to assign 10 
 the majority of the patients places in the ranks of the ordin- 
 ary varieties and classes of the insane." Farther on, still 
 speaking of the same subject, he says: "The scandal which 
 has come upon evidence given in doubtful cases of insanity 
 has arisen from medical men giving their opinion after ah 
 amount of knowledge and examination of the patient which 
 in no degree warranted any opinion at all. Half an hour's 
 conversation with a patient may tell us very little about him; 
 it may be necessary to see him again and again; to see a 
 woman at various periods of the month ; above all, to ob- 
 serve a patient without his knowledge — in the night, at 
 meals, in various occupations, and to see what he writes, if 
 he can be got to write. We shall have to consider his mo- 
 tive for the crime — if it be a crime — the method of its per- 
 formance, and the preparations for it, and his present feel- 
 ings with regard to it, etc." A fair general statement of the 
 phenomena of this particular phase of lunacy is that acts of 
 violence may be done with intention, but without rational 
 motive. The affected person has an intens.- inclination to 
 
THE PLEA OF INSANITY. 399 
 
 kill some one, he does not care whom ; his victim may be 
 his dearest friend or an entire stranger; but when his im- 
 pulse vents itself by selection upon an enemy in revenge of 
 an old-standing grudge, the coincidence should rouse strong 
 suspicion of the genuineness of his disease. Even where 
 such vengeful memory is not shown, Hammond* places 
 irresistible impulse and emotional insanity on a par with 
 "heat of passion," depriving them of all palliative force 
 when accompanied by "a deliberate purpose to commit 
 murder or other crime ;" and in his latest workf insists that 
 if a person feeling a growing impulse to commit crime do 
 not immediately place himself under restraint, "he is 
 morally and legally in no better position than a ruffian who 
 feels an impulse to acquire other people's property, and 
 accordingly murders the man most convenient for the pur- 
 pose." In most instances the gradual development of such 
 morbid longings, from their repressible onset to the point 
 where reason yields to them, gives ample time to follow this 
 advice ; but recorded observations force us to recognize the 
 exceptional occurrence of attacks in which the domination 
 is sudden ; and here the discrimination is a nice one. Most 
 of us who call ourselves sane have occasional morbid im- 
 pulses — not, perhaps, homicidal in extent, but prompting 
 us to do foolish, if not criminal things ; madness consists not 
 in the origination of these, but in the inability to master them 
 by will. Among sane people, too, individual temperaments 
 differ so that an excitable person is led away by feelings 
 which cannot move the phlegmatic soul. Nay, if we carry 
 neurological refinements to an extreme, it might be plausibly 
 argued that excitability or a violent temper is proof of a de- 
 fective organization of the nervous system, and that there- 
 fore no one ought to be held responsible for any impulsive 
 action. Where this plea of "volitional insanity " is brought 
 into court, the point to be decided is, as Maudsley has said, 
 "Whether the impulse was really irresistible or whether it 
 was only unresisted ;'' or, as the present writer phrased it 
 
 * "Insanity in its Relations to Crime." 
 t "Diseases of the Nervous System," 6th edition, 1876. 
 
400 THE PLEA OF INSANITY. 
 
 three years earlier,* "The question to be solved in such a 
 case is not the difficulty but the impossibility, of resisting an 
 
 emotional impulse Frequently the impulse is 
 
 rendered 'irresistible' by the absence of a sufficiently strong 
 motive to resist it. A well-bred man may preserve his cool- 
 ness under an insult in the presence of ladies which hevvould 
 be 'irresistibly ' impelled to resent on the spot if offered 
 elsewhere; and even in the case of an undoubtedly, insane 
 impulse, it may be questioned whether the certainty of legal 
 penalties would not often turn the wavering scale in favor 
 of self-control." 
 
 Finally, we have the juryman's puzzle, invented by Prich- 
 ard forty years ago, under the title of "moral insanity" — a 
 title which, as our knowledge of mental disease advances, 
 is less and less frequently met with in medical literatuie. 
 In such cases we are asked to declare criminals irresponsible 
 solely because their conduct "appears to be governed by 
 immoral motives which are cherished and obeyed without 
 any evident desire to resist them," although "their mental 
 resources seem to be greater sometimes than when they 
 were well, and they reason most acutely, apparently because 
 all their intellectual faculties are applied to the justification 
 and gratification of their selfish desires." Now, whilst it is 
 beyond dispute that moral perversion may be among the 
 early symptoms of various forms of insanity, we may, with 
 Blandford, " deny that the absence of the moral sense proves 
 or constitutes insanity, any more than its presence proves 
 sanity;" and the same author adds: "Probably greater 
 wickedness is daily perpetrated by sane than ever was com- 
 mitted by insane men and women ; so that when immorality 
 makes us question a man's state of mind, it must be remem- 
 bered that insanity, if it exists, is to be demonstrated by 
 other mental symptoms and concomitant facts and circum- 
 stances, and not by the act of wickedness alone." So, too, 
 Maudsley (who is almost alone among modern writers in ad- 
 hering to a separate classification) avows that " the vicious 
 act or crime is not itself proof of insanity ; it must, in order 
 to establish moral insanity, be traced from disease through 
 
 * New York Medical Gazette, May 27th, 1871. 
 
THE PLEA OF INSANITY. 
 
 401 
 
 ■a proper train, of symptoms, just us the acts of a sane man 
 are deduced from his motives; and the evidence of disease 
 will be found in the entire histoiy of the case." In short, 
 this so-called moral insanity, as an analysis of Prichard's 
 own cases shows, is but an isolated symptom of more gen- 
 eral diseases, the term embracing, in Hammond's words, 
 "'several species which are now more properly placed under 
 other heads ;"* or, to speak more accurately, perhaps, re- 
 ferring, in the majority of examples, to certain stages of 
 otherwise defined mental disorders. But even granting, in 
 any given case, the insanity in other respects of a culprit 
 whose reasoning powers are for the time unimpaired, and 
 who deliberately "gratifies his selfish desires," with capacity 
 to understand the consequences of his acts, the question re- 
 mains whether he should be exempt from punishment, and 
 this question common sense must answer in the negative, 
 unless we are prepared — and with much better reason — also 
 to exculpate all sane criminals whose moral sense has been 
 blunted by early training and association. In the latter 
 case the mental condition is as far, or sometimes farther, 
 from a healthy standard, as in the former. 
 
 It would have been easy to multiply quotations from re- 
 cognized authorities in support of the views herein ad- 
 vanced ; but it has seemed preferable to cite recent works 
 by writers who are oftenest referred to by counsel for the 
 defense; and if large use has been made of Maudsley's state- 
 ments, it is because he, of all living alienists, is most in- 
 clined to seek mental palliation for criminal actions. Fiom 
 all that has been said, it is evident that acts of violence com- 
 mitted by persons of unsound mind are divisible into two 
 general classes : those which are purposeless and auto- 
 matic, or of which the purpose would be justifiable if the 
 lunatic's premises were true, and those which are prompted 
 by a conscious intent to do wrong. In the former class of 
 cases there can be no doubt of the actor's irresponsibility ; 
 in the latter, neither ethics nor justice demand his abso- 
 lution. We might, perhaps, stretch a point in sympathy 
 
 r "Diseases of the Nervous System." 
 
402 THE PLEA OF INSANITY. 
 
 with the concomitant mental unsoundness, and refrain from 
 inflicting the death penalty ; but we should see to it that the 
 intentional criminal lunatic shull not escape punishment 
 altogether, as he is now allowed to do under our statutes. 
 Even where murder is apparently motiveless, we should in- 
 sist that the murderer be segregated from the community 
 for life ; since all authorities agree that "homicidal mania," 
 from whatever cause arising, is very apt to recur. As it is, 
 our laws (which accept the preposterous verdict that a man 
 may be sane up to the very moment of committing a pur- 
 posive crime and recover permanent sanity immediately 
 thereafter, being the victim of brain disease only at the in- 
 stant of the act) prescribe the farcical formality of sending 
 the alleged lunatic to an asylum, whence he must be speedily 
 released as "recovered." The difficulty of determining the 
 motive of an action, or even the existence of insanity, is in 
 many cases very great — in nearly all insuperable to the un- 
 professional observer — and there will always be room for 
 medical experts in medico-legal cases ; but there is no reason 
 why these should confuse instead of simplifying legal pro- 
 ceedings. The wisest plan would be to refer all testimony 
 concerning mental unsoundness to a permanently organized 
 commission in lunacy, on whose report an intelligent de- 
 cision might be reached. A step in the right direction was 
 made in the New York Act of 1874, directing that the plea 
 of insanity be received only at the time of arraignment, and 
 empowering the court to appoint a commission of inquiry ; 
 but the appointment of such commission is optional instead 
 of obligatory, and no guarantee is demanded as to the 
 special qualifications of the temporary commissioners. 
 Much, therefore, still remains to be done, to bring law and 
 medicine into equitable harmony. Meanwhile, jurists and 
 jurymen will do well to bear in mind that insanity, if genu- 
 ine, is shown in other ways than by a single action ; that 
 " hypothetical questions '' are useless, each case requiring 
 thorough and painstaking examination on its own individual 
 merits ; and, lastly, that a person whom no physician would 
 hesitate to pronounce insane, may, nevertheless, commit crime 
 with a reasoningly culpable purpose. 
 
The Union of 
 
 Public Charities and Correction 
 
 in New York City. 
 
 By SAMUEL A RABORG, M. D.* 
 
 When emigration brings a number of settlers to any one 
 point they naturally band together : in the first place, for 
 the purpose of trade and the ordinary amenities of life ; and 
 secondly, for mutual protection against those who are vici- 
 ously disposed, in one way or another, to infringe upon the 
 rights of their neighbors. There is also in every community 
 a certain percentage of the people who are, through physical 
 disability, mental inaptitude or other causes, unable to pro- 
 vide for themselves. These are entirely distinct from the 
 last class. They are the ones who are ground down by the 
 unjust wheel of misfortune or circumstance, and these also 
 are to be provided for. 
 
 In looking back through the dim vista of over two cen- 
 turies, we find that on the 2d of February, 1657, the first 
 charter for this City of New York on record was granted by 
 the Dutch Government to the few thousand people who 
 originally came, principally fiom Holland, and started our 
 present metropolis on the lower portion of Manhattan 
 Island, and in the immediate vicinity of the Battery. 
 
 This charter, however, was very limited and imperfect ; 
 the most striking feature of it was the division of the in- 
 habitants into " great and small citizens." The former in- 
 cluded the members of the government and their descend- 
 ants in the male line, ministers of the Gospel, etc. The 
 latter, all who " resided within the city during a year and 
 six weeks, and kept their fire and lights." 
 
 * Read before the Medico-Legal Society, March 7th, 1877. 
 
404 PUBLIC CHARITIES AND CORRECTION. 
 
 In the year r686 we find that George the Second, by the 
 grace of God, of Great Britain and Ireland, King, defender 
 of the faith, etc., issued the following: 
 
 " To all whom these present letters shall come, greeting. 
 Whereas, on the 22d day of April, in the year of our Lord 
 one thousand six hundred and eighty six, Thomas Dougan, 
 the Lieutenant Governor and Vice-Admiral of New York 
 and its dependencies, under our predecessor James (the 
 Second), then King of England, did make and execute a 
 certain grant, etc." 
 
 This charter goes on to speak of New York as "an ancient 
 city, and body corporate, possessing divers lands and fran- 
 chises not only from the English but from several Dutch 
 Governors, while the province was under their jurisdiction." 
 After giving several sections devoted to municipal authority, 
 we find the original power vested in certain officers to have 
 charge of criminals and paupers — they read as follows: 
 "And further we do for us, our heirs and successors, grant 
 unto the said Mayor, Aldermen and commonalty, and their 
 successors forever, full power and authority to erect and 
 build, or appropriate any other buildings already built, for 
 one or more bridewell or bridewells, house or houses of cor- 
 rection, and workhouse or workhouses ; together with full 
 power and authority to the said Mayor, Recorder and Alder- 
 men, or any one of them, to take up and arrest, or order to 
 be taken up and arrested, all or any rogues, stragglers and 
 idle and suspicious persons ; and as they, the said Mayor, 
 Recorder or Aldermen, or any one of them, shall see cause, 
 to order all or any such rogues, vagabonds, stragglers and 
 idle and suspicious persons, either to the said workhouse, 
 there to remain, and work such work, and so long, not ex- 
 ceeding forty days, or else to bridewell or house of correc- 
 tion, there to receive such punishment, not extending to the 
 loss of life or limb, as the said Mayor, Recorder and Alder- 
 men, or any one of them, shall think fit. And also that they, 
 the said Mayor, Aldermen and commonality, and their suc- 
 cessors forever, may, and shall have power to build, erect or 
 appropriate any of their buildings already built for an alms- 
 house, for the relief of the poor, together also with as full 
 
PUBLIC CHARITIES AND CORRECTION. 405 
 
 and ample power to them, and their successors, to order, 
 direct, and act in and about the said houses of correction, 
 workhouses and almshouses, and the persons to" be put in 
 and ordered there, as to any city or corporation in any place 
 of that part of our realm of Great Britain called England, 
 and the officers or ministers thereof, doth or may belong.' - 
 Immediately after this, in the same section, power is given 
 to the same officers to have or erect one or more jails, as 
 necessity requires. 
 
 At this time the good people who framed this charter did 
 not dream that this was to become the metropolis of North 
 America, and one of the- largest cites of the world. 
 
 So, for nearly two centuries, from 1686, when Governor 
 Dougan, by his charter, gave the supervision of the Bride- 
 well, almshouse and jail to the Mayor, Recorder and Alder- 
 men, when with a thrifty Dutch settlement the probability 
 is neither of them was required except in rare instances, 
 until to-day, when the needy and poor of our city far exceed 
 the entire population, years after this charter became a law, 
 the same combination is made of criminals and paupeis, 
 under the supervision of the Commissioners of Charities and 
 
 Correction. 
 
 It is our province to enter a protest against its continu- 
 ance — first, on the ground of humanity; and second, in the 
 light of political economy. 
 
 We will first glance at the different forms of government 
 by which these two classes have been controlled since the 
 
 organization of the city. 
 
 In 1673 — thiiteen years before the Dougan Charter be- 
 came a law — the population of Manhattan Island only num- 
 bered 2,500 souls. 
 
 For a long time after the establishment of the charter re- 
 ferred to, the care of the charitable and correctional insti- 
 tutions remained under the charge of the Mayor, Recorder 
 and Aldermen. In 1778 the city contained, according to 
 Mr. Hugh Gain's Universal Register, about 4,200 houses, 
 and 30,000 inhabitants. In 1800 the population had in- 
 creased to 60,489. This was one hundred and ninety-one 
 years after Hendrick Hudson, in trading for the Dutch East 
 India Company, first touched the soil of Manhattan Island. 
 
406 PUBLIC CHARITIES AND CORRECTION. 
 
 "We find in a "Treatise on the Corporation," published 
 by Murray Hoffman, a novel project for raising money to 
 build a new almshouse in 1794. On the 20th day of January 
 of that year, a petition was presented to the Legislature for 
 leave to raise _£io,ooo by lottery to construct a new building 
 for an almshouse. On the 6th of April, 1795, an Act of the 
 Legislature was passed authorizing such lottery, for the 
 purpose of raising the before-mentioned sum. In the year 
 1814 the Corporation established the almshouse at Bellevue, 
 upon their own ground. Som§ time after this period, the 
 number of paupers and criminals of the city having grown 
 in proportion to the population, the care of these institu- 
 tions was turned over to a commissioner, called the Com- 
 missioner of the Almshouse. 
 
 It is difficult to trace the course pursued by the early 
 officials of this city, as no reports of their work were pub- 
 lished prior to the year 183 1. It is at this period, also, that 
 we find the first printed reports of the proceedings of the 
 Board of Aldermen. It is next to impossible to deciper the 
 Dutch MSS. 
 
 Moses G. Leonard, Esq., was commissioner in 1848, and 
 with that year the government of these institutions was 
 changed. In his report he states that the sum of 
 "$403,307.83 has been spent during the last twelve months 
 for their support." 
 
 On the 8th of May, 1844, an Act was passed by the State 
 Legislature placing these institutions under a Board of ten 
 Governors. The first appointed were Wm. T. Pinckney, 
 Isaac Townsend, Simeon Draper, Francis R. Tillow, 
 Jonathan L. Coddington, Wm. M. Evarts, Richard S. 
 Williams, Timothy Daly, Schureman Halsted and Peter 
 McLoughlin. The institutions placed under the supervision 
 of this Board were : 
 
 1. The Department of the Outdoor Poor. 
 
 2. The City Prisons, three in number, viz.: At Halls of 
 Justice, Centre Street ; Jefferson Market, Greenwich 
 Avenue ; and Essex Market, Grand Street. 
 
PUBLIC CHARITIES AND CORRECTION. 407 
 
 3. The Bellevue Hospital. 
 
 4. The Penitentiary. ™ i ■,,, x i j 
 -.,.,, >Blackwells Island. 
 
 5. The Almshouse. j 
 
 6. The Lunatic Asylum. J 
 
 And 7. The Nurseries on Randall's Island. 
 
 Also, by the Act passed April nth, 1849, a workhouse 
 was established and placed under the control of this Board. 
 
 In the last report of the Governors for 1859, the net 
 amount paid for the support of the institutions was 
 
 $597,835-o7- 
 
 January 1st, 1861, we have the first report of the Com- 
 missioners of Public Charities and Corrections. They were 
 appointed under the law passed April 17th, i860. They 
 were Simeon Draper, Isaac Bell, Jr., Moses H. Grinnell and 
 James B. Nicholson. 
 
 In their first report, page 9, they say : " It will be seen 
 that important changes have been made in the general ad- 
 ministration of the affairs of the Department, a large reduc- 
 tion has been made in the number of employees, etc., etc. 
 Important changes in almost every institution have been 
 made, affecting their economy as well as their proper govern- 
 ment. The Nursery of Infants in the city has been aban- 
 doned, and the care of them placed in responsible hands in 
 the Almshouse Department." 
 
 By an Act passed May 5th, 1870, this Department was re- 
 organized, and Mayor A. Oakey Hall appointed the follow- 
 ing five Commissioners to superintend it, viz.: Isaac Bell, 
 O. W. Brennan, James Bowen, James B. Nicholson and 
 Alexander Frear. At this time there were five general 
 hospitals for surgical and medical cases, besides the Bureau 
 for.the Treatment of the Outdoor Sick, and six special hos- 
 pitals for specific and contagious diseases. The number of 
 patients treated in the general hospitals was 18,919, and in 
 the special hospitals 4,405 ; total, 23,324. At the Morgue, 
 this year, there were received 174 bodies, of which only 89 
 were identified by friends. 
 
 Again, in 1875, this department was reorganized and 
 placed under the control of Commissioners Thomas 
 Brennan, Isaac H. Bailey and Townsend Cox. By their 
 
408 PUBLIC CHARITIES AND CORRECTION. 
 
 report fpr that year, " The city charitable and correctional 
 institutions had an average population of 10,664," an d 
 " 62,395 persons were relieved by the Outdoor Department." 
 
 From this condensed statement of expenditures for the 
 year, we find that for the support of these institutions, re- 
 pairs, etc., they spent $1,286,206.66. 
 
 It is easily seen by these figures to what magnitude these 
 classes have grown. 
 
 Outdoor Sleepers. — An immense sensation was made in 
 London some years ago, when some philanthropist dis- 
 covered that at least one hundred persons, hungry, destitute, 
 and almost naked, slept each night in the private parks 
 fronting the elegant mansions of the rich. Still this can be 
 seen every night in our city by any one who will pass 
 through Madison or other squares after eleven o'clock 
 And these poor, desolate wretches have no place to resort 
 to in this great city but to the station-houses. 
 
 Some two or three years ago I went down town after mid- 
 night, and with a pass from the Police Department saw the 
 true state of these night lodgers, and it is difficult to picture 
 the reality of their condition. In one station-house 1 found 
 the men so densely packed together on the floor that they 
 actually covered it — it could not been seen at all. 
 
 In another, a captain pointed me out a cell where he had 
 allowed a poor woman and two children, who had been 
 forced into the street by a drunken husband, to remain all 
 night, as "he felt so sorry for her," and the cell was so 
 much more comfortable than the lodgers' room. There is 
 no question that a great many of these people are not de- 
 serving, that they are confirmed vagabonds, tramps and 
 petty thieves; but all such should be arretted and placed in 
 the workhouse and forced to make an hi nest living. But 
 this is no reason why the truly poor and unfortunate should 
 be neglected. From the Police Report of 1875, we find 
 that there were during that year two hundred and seventeen 
 thousand five hundred and five who sought this shelter. 
 During the last winter some private efforts were made to 
 supply this need ; but we shall eventually have to do as they 
 have done in London : by private philanthropic efforts erect 
 
PUBLIC CHARITIES AND CORRECTION. 409 
 
 night lodging-houses in certain districts where they are 
 most needed, with appurtenances for cleanliness, where 
 proper discrimination can be used, andwheie those who 
 are really the children of misfortune may find a place to rest 
 their weary bodies for a night in peace and comfort. Surely 
 the familiarity with the station-houses, brought about by the 
 the present system, must have a most unsortunate influence 
 not only on the truly deserving, but particularly on those 
 who have only taken the first steps in the downward path of 
 crime and dissipation. 
 
 The Poor and the Vicious. —These pictures may seem 
 exaggerated, but few persons in this great metropolis are 
 aware of how intimately criminals are thrown with the poor 
 in many of our public institutions. On Blackwell's Island 
 a young, inuocent girl may occupy the next bed to a woman 
 who represents the worst and most degraded class of her 
 sex to be found in this city. Much of the menial work at 
 Bellevue and Charity Hospitals is done by women and men 
 committed to the workhouse for intoxication and other 
 offenses. 
 
 Some of the nurses are or have been confined in the same 
 institutions. And worst of all is the association of these 
 buildings for reformatory and charitable purposes on Black- 
 well's Island felt by the honest poor. It is a fact well known 
 to every physician in this city, that the majority in this class 
 will starve on a bare crust of bread in a miserable tenement, 
 rather than go to this much-dreaded island. When Dr. W. 
 W. Sanger was appointed Resident Physician to the Charity 
 Hospital, or, as it was then termed, the Penitentiary Hos- 
 pital, he reported that "in the year 1854 there were 3,734 
 admissions. Of these, debauch and delirium tremens fur- 
 nished 25 per cent, of the gross number, and 37 per cent, 
 was due to syphilis. It will thus be observed that 72 per 
 cent, of all cases under treatment were directly caused by 
 the lowest and foulest kind of dissipation and vice." In a 
 protest he made to the authorities, of this combination of 
 the sick with criminals, we find the following: "Is it neces- 
 sary, or must it be, that human beings laboring under the 
 effects of drink, syphilis, ulcers and all forms of disease, 
 
4-IO PUBLIC CHARITIES AND CORRECTION. 
 
 while being medically treated, shall undergo a process of 
 being made into thieves, to prey on the community when 
 discharged ? " 
 
 We all know that when a person is poor, friendless and an 
 outcast, he must at times have feelings of antagonism 
 against his more fortunate fellow-beings. When in this con- 
 dition, desperate, despairing, and apparently God-forsaken, 
 can anything be more pernicious than to place him in con- 
 tact and under the influence of criminals — those who are 
 corrupt in nature, vicious in propensities, and deliberately 
 defiant of all laws of God and man? Every instinct of hu- 
 manity, every throb of the great heart of charity, every im- 
 pulse of the noble men and women who devote themselves 
 to the amelioration of the misfortunes of their fellow-beings, 
 must be averse to this connection ; the principle is wrong 
 and but begets criminals. 
 
 The true political economy here, would surely be to ele- 
 vate these people by showing them that there is nothing 
 degrading in being unfortunate and poor ; to stimulate them 
 with a no*ble desire to woik and do for themselves ; to sur- 
 round them with elevating and refining influences — in other 
 words, to make them producers instead of consumers. 
 
 What Should be the Policy of a Great City Towaud 
 its Poor? — This is a question that has been agitated by the 
 greatest humanitarians, philanthropists and politicians for 
 centuries past in Europe. Let us then first glance at the 
 systems now in vogue in the two most noted capitals in the 
 world to-day, for humanity, civilization and culture — viz., 
 London and Paris. 
 
 In the former city, London, for six centuries, different 
 charitable institutions have from time to t me been endowed 
 by opulent citizens, under the English law of bequests. 
 
 Their endowments are considered so sacred that no person 
 can disturb or alter them. Some of them have grown to 
 enormous proportions, by the advance of real estate and the 
 gradual accumulation of interest. As a rule, they have been 
 placed under the control of Governors or Trustees of such 
 character as the donor dictated in his bequest. London, at 
 
PUBLIC CHARITIES AND CORRECTION. 41 1 
 
 the accession of James the First, was said to contain little 
 more than 150,000 inhabitants. 
 
 Before the Restoration of Charles II., in 1660, says Sir 
 William Petty, "the people of Paris were more than those 
 of London and Dublin put together; whereas now (1687) the 
 people of London are more than those of Paris and Rome." 
 In 1682 there were about 670,000 souls in London; in 1801, 
 864,845 ; and in 1841, 1,870,727. In 1843, according to the 
 work by Charles Knight on London, there was at that 
 period an annual income of ^310,000 a year in London 
 alone, from the bequests left by generous donors for the 
 various city charities, and, "altogether, there is a total of 
 upwards of ^384,000 of the annual income arising from 
 property in the Metropolitan County, which is devoted to 
 purposes of charity and education." "When Lawrence 
 Sheriff, grocer and citizen of London, left the third part of 
 a field of 24 acres in the parish of Holborn, for the endow- 
 ment of a grammar school at Rughby, it produced only 
 £% a year. This field was called the 'conduit close,' and 
 was nearly half a mile from any house. It is now covered 
 with buildings, and the rental exceeds _£io,ooo a year." The 
 almshouses in England are intended as asylums for the aged 
 and infirm. Mr. Knight says : ''The almshouses in London 
 are probably not far short of one hundred and fifty." These 
 are chiefly maintained by endowments left in trust to city 
 companies. It must be remembered, however, in speaking 
 of so large a number of these institutions, that they, as a 
 rule, contain accommodations for very few persons, and 
 were founded by trades or guilds for the use of their own 
 brethren. The Drapers' Almshouses are amongst the earli- 
 est foundations of this kind, started in 1522. 
 
 In 1593 the merchant tailors erected seven almshouses for 
 fourteen poor widows on Tower Hill. The result of the 
 promiscuous character of so many charitable societies in 
 London is, however, keenly felt. A story is told of a widow 
 who availed herself, by intrigue, of placing an entire family 
 of children in the different orphan asylums, when she was 
 more than aptly able to provide for them herself. These 
 are the London Orphan Asylum, the Female Orphan, the 
 
412 PUBLIC CHARITIES AND CORRECTION. 
 
 British Orphan, the Infant Orphan, the Orphan Working, 
 the Sailors' Female Orphan, the Merchants' Sailors' Orphan, 
 the Incorporated Clergy Orphan, and the Army Medical 
 Officers' Orphan. There are five Royal Hospitals, com- 
 monly known as such, and designated, " 'The Royal Hos- 
 pitals of the City of London,' under the pious care of the 
 Right Honorable the Lord Mayor, Aldermen, and Govern- 
 ors thereof." They are — St. Bartholomew's, Christ's Hos- 
 pital, St. Thomas', Bridewell and Bethlehem. There are 
 twelve general medical hospitals in London, including the 
 above; the most of them have been endowed by rich and 
 charitable persons. The total income of St. Bartholomew's 
 Hospital, in 1850, was ,£32,000, while in 1544 it was depend- 
 ent upon an income of only jQzi 1 * O ne °^ tne most re_ 
 markable instances of generosity known to the world, was 
 the establishment of Guy's Hospital, Southwark. It was 
 founded in 1724 for sick and diseased poor persons; its ac- 
 commodation is 580 beds. Some 50,000 peisons receive here 
 annually medical relief. 
 
 The Lunatic House is a department peculiar to this hos- 
 pital. The usual number of patients is from twenty to 
 thirty, as provided for by the founder. They have spacious 
 grounds for their use behind the hospital. This establish- 
 ment was founded at the sole cost and charges of Thomas 
 Guy, Esq., a rich bookseller of Lombard Street, who spent 
 upwards of ^18,000 on the building during his life-time, and 
 endowed it with the sum of ^210,429 — the largest sum that 
 has ever been left by an individual to charitable purposes. 
 In 1829 Mr. Hurst, a gentleman residing in Petersham, left 
 ^200,000 to the same hospital, stipulating for a provision 
 of additional accommodation for 100 patients. Mr. Low, in 
 speaking of the London charities, says: •' It only remains 
 for us to premise, that institutions of a minor character, but 
 kindred in design to the foregoing, are constantly making 
 their appearance before the public, .under slight variations 
 of title and claims to support; proving often, however, to be 
 attempts only of individuals either for the development of 
 
 * "Charities of London." Sampson, Low & Co. 
 
PUBLIC CHARITIES AND CORRECTION. 
 
 413 
 
 peculiar systems of treatment, or for the extension of fame 
 and practice." According to the same author, in 1850 the 
 population of London was 2,200,000, and from them the 
 twelve general medical hospitals had an income derived 
 from voluntary contributions of .£31,265, and an income 
 from funded property or otherwise secured of ,£111,641. 
 There were fifty medical charities for special purposes, with 
 voluntary contributions of ^27,974, and from funded prop- 
 erty .£68,690. There were thirty-five general dispensaries, 
 with voluntary contributions of .£11,470, and from funded 
 property ,£2,954. 
 
 The entire amount devoted to charity that year in London 
 was, by voluntary contributions .£1, 022, 864, and from funded 
 property .£741,869 This, of course, includes asylums for 
 orphans, houses for the aged, school societies, Bible and 
 missionary societies, etc. On the 31st of March, 1840, the 
 House of Commons ordered a digest prepared of all the 
 charities of the United Kingdom ; this was published in 
 parts by John W. Parker,, of West Street, in 1843. In the 
 report of the Commissioners who performed this labor we 
 find: "Tn preparing this (third) part of the return, it has 
 been presumed that the object of the order was to obtain a 
 summary of those charities which are. or may be liable to 
 be, distributed indiscriminately amongst the poor (the evil 
 tendency of charities of this description having been fre- 
 quently the topic of observation)." With this array of insti- 
 tutes, I desire to say a word about the prisons of London 
 They showthe same miscellaneous character as the charities, 
 and, from the same system of bequests, are so differently 
 governed with regard to severity of discipline, that it is said 
 it is difficult for the judges on circuit in England to know 
 for how long a period to condemn a criminal to prison, as 
 two weeks in one is frequently greater punishment than two 
 months in another. For instance : Coldbath Fields Prison 
 or House of Correction, in the Parish of St. James, Clarken- 
 well, between the Church and Gray's Inn Road, is under the 
 jurisdiction of fourteen magistrates, appointed at each quar- 
 ter sessions, of whom four go out quarterly by rotation. It 
 is for criminals from all parts of the County of Middlesex. 
 
4 14 PUBLIC CHARITIES AND CORRECTION. 
 
 The number confined here is in the neighborhood of 12,000 
 annually. The discipline enforced is that called the "silent 
 system," the prisoners working in bodies, and silence being 
 preserved by great vigilance on the part of the officials. 
 The convict is not allowed to receive a letter during the first 
 six months of his incarceration, and after that only one 
 letter a month. Some of the prisons in London, to the con- 
 trary, are very lax, allowing card-playing, idleness and beer- 
 drinking. Some are under the charge of one or more Gov- 
 ernors, and others directly controlled by the Lord Mayor 
 and Aldermen. This depends greatly upon the character 
 of the support of the institution ; as, for instance, Bridewell, 
 within the city of London, is under the jurisdiction of the 
 Governor of Bridewell and Bethlehem Hospitals, and is 
 supported out of the funds of these hospitals. 
 
 The nursing in the English hospitals is peculiar. Some 
 few are in charge of religious orders, but the majority are 
 cared for by hired' help. An innovation of late years is to 
 make a characterof sisterhood in each establishment. When 
 a woman first applies for the position of nurse, if she is of 
 proper character and brings good references, she is made 
 an assistant ; this position she occupies with a stated salary 
 for two years. At the expiration of that time, if she has 
 served satisfactorily, she is made a full sister, with increased 
 compensation, and two assistant nurses are placed under 
 her control. 
 
 In transferring our attention to Paris, we find a very dif- 
 ferent condition in the public institutions. 
 
 In Knight's "Pictorial London," it is stated thavt in 1840 
 one-third of the deaths in Paris occurred in the hospitals 
 (or 9,338 out of 28,294); but in London, the same year, the 
 proportion was only one in nineteen (or 2,358 out of 46,281). 
 Knight says: " The domestic feeling or prejudice, if we like 
 to call it so, of the English people, is generally adverse to 
 that public association which is inevitable in an hospital; 
 but in reality there is a great deal in the fact that although 
 the London hospitals are so numerous, their capacity is very 
 limited, and on every ' taking-in day,' a large number of 
 persons are unable to obtain admission." 
 
PUBLIC CHARITIES AND CORRECTION. 415 
 
 The truth really is, that the hospitals of Paris are differ- 
 ently conducted. In the early days of lhat city, private 
 parties endowed some institutions of the tame character of 
 those found in London, but the monster, Revolution, has so 
 many times swept over the face of that most beautiful and 
 attractive city of the world, and at such times entirely dis- 
 regarding law and the rights of property, that we find lo-day 
 a very wise concentration and arrangement of the institu- 
 tions of charity ; probably not akin with the intention of 
 the original donors, but much more beneficial for the re- 
 cipients of t'leir boun. v. By a decree of the Fiench Con- 
 vention, pass- (i July 16th, .1793, part of the patients of the 
 hospitals of Paris were transfeired to convents, or other 
 structures which had become national property. By subse- 
 quent decrees, the superintendence of hospitals was vested 
 in sixteen members of the National Assembly. By a decree 
 of January 10th, 1849, everything relating to public assist- 
 ance has been placed under a special administration called 
 Administration Generale de V Assistance a Paris. It is under the 
 control of ilie Minister of the Interior, and is managed by a 
 Director and a Conseil de Surveillance of twenty members, 
 presided over by the Prefects of the Seme and of Police. . There 
 are in France 1,333 hospitals, the revenues of which amount 
 t> 53,662,992 francs For the year ending December 31st, 
 1854, in the general and special hospitals, there were ad- 
 mitted 68,863 medical and 25,952 surgical ca>es. There were 
 10 479 deaths in the medical wards, and 1,312 in the surgical 
 wards. In 1854 the net receipts were 14,894,220 francs; ex- 
 penditures 16,047,037 francs; deficiency, .1,152,817 francs. 
 Paris' annua! contribution for that year was 267,397 fiancs. 
 
 It will be a surpiise to many, to hear that so large a pro- 
 portion of the deaths of Paris as one-third occur in the 
 public hospitals, while in London only one of every nine- 
 teen takes place in these institutions. Two causes, however, 
 account for this. In the first place, the people of these two 
 capitals are very different in their tastes and inclinations as 
 regards home life The Parisians live largely, in the streets ; 
 they are fond of congregating together, and of fun and 
 pleasure. 
 
4'6 PUBLIC CHARITIES AND CORRECTION. 
 
 The Londoners, on the contrary, care more for their own 
 hearth-stone. No matter how poor the artisan or mechanic, 
 he tries to have a roof of his own. The difference in climate 
 no doubt has much to do with these peculiarities of the two 
 races; but more than this is the great difference in which 
 chese institutions are regarded in the two cities, and the vast 
 dissimilarity in their management. The Parisian loves the 
 hospital, be he rich or poor. If of the former, he gives 
 freely of his means towards its support; if of the latter, he 
 looks forward to it as a safe refuge when his days are to end 
 by disease and suffering, when h<s every want will be minist- 
 ered unto by the gentle hand of the patient sister of charity, 
 ind where his soul can leave its earthly tenement in peace 
 with God and man. The Londoner, on the contrary, regards 
 these institutions as a dernier ressort for the outcasts and un- 
 fortunates of society, and gives to them as a matter of 
 necessity or duty. 
 
 In this connection it is well to say a word in approbation 
 of the noble self-abnegation, the utiring devotion, the 
 patience and gentle kindness of the noble women who band 
 themselves under church organizations to devote their lives 
 as nurses in these institutions. 
 
 Every one who has had any experience on this subject 
 knows the infinite superiority of the ladies over hired nurses ; 
 and this is natural, as the first do their- work without com- 
 pensation, and for love of the Great Master, while the others 
 are simply stimulated by the miserable stipend they receive 
 monthly for their labor. In this noble country, so far, the 
 sisterhoods under the Catholic Church have done noble 
 work ; at St. Luke's Hospital an Episcopal sisterhood has 
 proven most effective ; and the recent action of Mayor Wick- 
 h im and others, in establishing the school for training nurses 
 cannot be spoken of with too much commendation, as they 
 have rendered a great service to the city and to humanity. 
 
 I have detailed the statistics of London and Paris to see 
 what information we can gain from them, for the guidance 
 of our future towards these unfortunate classes. 
 
 We are young as a city compared to either, and still our 
 growth is apparently to be as rapid, and probably, from 
 
PUBLIC CHARITIES AND CORRECTION. 417 
 
 present indications, gigantic, as either. From the points I 
 have given you, it will be seen that in London in 1850, with 
 a population of 2,200,000 souls, .£1,764,733 or about $8,541,- 
 407.72, were spent for the support of all these classes ; while 
 by the Report of the Board of United Charities for 1877, we, 
 with a population of something over one million, spent 
 $5,588,000 for these same classes, and in this report the ex- 
 penses of several institutions are not given, so that we might 
 estimate that at least six millions of dollars were spent in 
 this city last year for those purposes. This, then, is already 
 very much in excess of the expenditures in proportion to 
 London. 
 
 IS IT NOT WISE FOR US TO HESITATE HERE, AND THINK OF THE 
 
 future? — History in all ages has proven that the pauper and 
 criminal population of a country grow with its growth. 
 Would it not be noble for us to adopt a plan by which we 
 would have a less percentage of these classes than other 
 countries? Would it not be a grand illustration of the 
 working of our Great Republican country, to show that we 
 have raised the poor, the unfortunate and even the vagrants 
 to become honest, hard-working citizens? How is this to be 
 done ? In the first place, let us separate crime from poverty, 
 by appointing one Commissioner of Charity, and placing the 
 department of corrections where it belongs, in the hands of 
 the police authorities. This commissioner should be assisted 
 by a council of gentlemen from different religious denomi- 
 nations or philanthropic societies, say of twelve members. 
 
 There are plenty of these who would serve in such a posi- 
 tion without compensation. 
 
 This commissioner and these gentlemen should be ap- 
 pointed for their fitness for the position, and without any 
 regard to their political affiliations. In no large city of the 
 world are the charities hampered as they a*re here by political 
 considerations. At the fifth annual meeting of the State 
 Charities Aid Association, held on the first of this month, a 
 report was submitted which stated: "The Association prays 
 for the removal of our pauper hospitals from political influ- 
 ence. In Bellevue Hospital the pauper distribution of 
 supplies is neglected, and the drugs are so bad in quality 
 
4t8 public charities and. correction, 
 
 that tlieir medical qualities cannot be counted upon. In 
 some wards of Bellevue Hospital potatoes were given last 
 fall but six times in two weeks, the condensed milk was 
 often so watered as to furnish no adequate nutriment, and 
 there was a constant deficiency in bed linen." When we see 
 by the report of the Board of United Charities for the last 
 year that $120,874.73 were spent on this institution, the 
 above seems incredible. The fifth annual report of the 
 local visiting committee for Bellevue and other public hos- 
 pitals of the city of New York states : "The administration, 
 of the Department of Public Charities and Corrections has 
 properly nothing to do with politics ; yet like every other 
 department of the City Government, it is simply a machine. 
 
 "There is not an appointment, from that of the com- 
 missioners to the lowest subordinate, which may not have a 
 political significance, and while the system lasts the results 
 must be the same." Further on the report states: 
 
 "When the citizens of New York determine that their 
 public charities are not to be managed with reference to 
 partisan politics, but on enlightened philanthropic prin- 
 ciples, we shall have the right administration, and not till 
 then." These expressions, coming from noble men and 
 women engaged without compensation in this work, should 
 receive proper consideration. As long as this condition 
 lasts we will have the same miscellaneous character of 
 charities as to-day exists in England. How is it to be ex- 
 pected that private persons will- leave fortunes in the hands 
 of politicians to disburse, knowing well it will be used for 
 partisan purposes? How much better and more economical 
 for their future distribution, to- establish a non-partisan and 
 philanthropic management for these institutions, which will 
 at once command the confidence of. those who desire to be- 
 queath means for such purposes. Of course private benefi- 
 cence and generosity cannot be interfered with, and should 
 not be, particularly in a free country like ours ; but much 
 can be done to utilize this, to educate the benefactors, who. 
 are generally engrossed with business cares and anxieties, 
 as to the true policy of disposing of their charities. There 
 are surely enough gentlemen in this city who have already 
 
PUBLIC CHARITIES AND CORRECTION. 419 
 
 demonstrated their disinterested devotion in this cause, and 
 who are allied to no political rings or cliques, to select a 
 commissioner from — such men as Mr. Henry L. Hoguet, 
 Mr. Theodore Roosevelt and Mr. Henry E. Pellew, and 
 others of this kind, would give universal satisfaction. 
 
 In the parishes of England a rule is adopted which should 
 be in vogue here. At every poor-house a register is kept of 
 the poor of the district, and if they wander off and apply 
 for assistance in another district they are returned to be 
 taken care of at their original homes. If this system were 
 adopted in New York it would save much time and trouble. 
 There is a dispensary in almost every district in the city : 
 if these institutions were obliged to keep a register alpha- 
 betically arranged of their own poor, much better facility 
 would be given the authorities to get at the truly deserving. 
 In this connection it would be necessary for this commis- 
 sioner and his council to have full power to investigate at 
 least twice annually all local charities receiving money from 
 the city. 
 
 It is very evident, after the developments recently made, 
 that all local charities receiving money from the excise or 
 other funds should be under the supervision of some abso-* 
 lute authority. 
 
 Such charities should be required at least semi-annually 
 to show their books and the general working of their 
 organization to a committee appointed ior this service. 
 
 Furthermore, unquestionably those who are doing an 
 honest and philanthropic work will court this inquiry, as it 
 would give the result of their labors to the public, and thus 
 increase their donations from charitably-inclined citizens. 
 
 And again, no new charities should be started in any 
 section of the city, if they expected to receive municipal 
 assistance, without the consent of the commissioner. There 
 is a great deal of money spent in unnecessary institutions. 
 If a dispensary is in a certain district and has a house already 
 rented, books containing the names of the poor of the dis- 
 trict, and other necessary conveniences, why start another 
 charity around the corner, or in the next block, which could 
 be coalesced with the first with great benefit, and with a de- 
 cided saving of the money intended for the poor? 
 
420 PUBLIC CHARITIES AND CORRECTION. 
 
 " I scruple not to affirm," says Howard, the great phil- 
 anthropist, "that half the robberies committed in and about 
 London are planned in the prisons by that dreadful assem- 
 blage of criminals and the number of idle people who visit 
 them." This is most plainly shown in our city. Young 
 persons, the victim of indiscretion or misfortune, come in 
 contact with those who are confirmed thieves, vagabonds 
 and criminals. What is to be expected from such ? Who 
 cannot picture their future ? — taught by those vile associ- 
 ates that it is easier to steal than to work, insidious 
 arguments plied to them that it is more distinguished, 
 more honorable, to be gentlemen of the road, sneak 
 thieves and villains, than to be honest, hard-working 
 citizens. Whom have we to blame but ourselves, for the in- 
 crease of the criminal classes, when we throw the young, 
 the weak, the homeless, and the most pliable portion of our 
 population, into the position which almost forces them to 
 ally themselves against law, order and society? Much of 
 the improvement in Newgate and other prisons in London 
 is due to the noble efforts of Miss Fry, who strenuously and 
 for years devoted her time to preventing the association of 
 young women incarcerated for small offenses and indis- 
 cretions with hardened criminals. All annals of such insti- 
 tutions which have existed in civilized times prove the 
 frightful result of such a connection, and every philan- 
 thropist who has ever inquired into or written on the sub- 
 ject, has pointed out the frightful folly of allowing such 
 association. 
 
 We are at present promised a more economical arrange- 
 ment of our city departments by the Legislature. We may 
 not hope that they will draw a wide line of demarkation 
 between criminals and paupers ? 
 
 Confining the truly vicious by themselves ; placing tramps, 
 drunkards and vagabonds in the workhouse, where they 
 will be obliged "to earn, their bread by the sweat of their 
 brows," and, last of all, teaching the poor to look upward to 
 a better state, encouraging them to earn an honest liveli- 
 hood and become useful citizens. With this accomplished, 
 we would have attained a higher scale of civilization than 
 has yet been reached, even in this much-vaunted nineteenth 
 century. i 
 
L///j?^^^a^Szi>' 
 
Edwin W. Stoughton. 
 
 Mr. Stoughton was born. in Springfield, Vermont, May i, 
 1818, and lived there until the age of eighteen years, when 
 he removed to the city of New York, where hespent the re- 
 mainder of his life. 
 
 He did not have the full advantages in his youth of the 
 New England common schools, and the selection of the pro- 
 fession of the law made his task all the more arduous. 
 Thorough, energetic, persistent study and application, how- 
 ever, brought him into the front rank of the legal profession, 
 and it will not be questioned that Mr. Stoughton, in the full 
 vigor of his professional life, in that department in which 
 he was most distinguished, was one of the acknowledged 
 leaders of the New York Bar. 
 
 He married Mary Fiske, March 3, 1855, who survives him; 
 the union was, as we believe, childless. 
 
 He joined the Medico-Legal Society in 1874, and while he 
 made no contribution of articles or papers, he was always 
 greatly interested in the science, and in the success' of the 
 Society. 
 
 Mr. Stoughton devoted himself in the early part of his 
 professional career closely to the practice of the law, avoid- 
 ing political life, for which he had little taste ; but in the 
 fall of 1877 he yielded to the claims of the Administration 
 and accepted the Russian Mission, remaining at St. Peters- 
 burg nearly two years, when, his health failing, he was 
 ordered by his physician to try the climate of Italy. 
 
 In the administration of the Russian Mission Mr. Stough- 
 ton gaye great satisfaction to his Government, and was 
 deservedly popular with the country. 
 
 Continued failing health forced him to retire from public 
 
EDWIN W. STOUGHTON. 
 
 life, and he resumed the practice of law, in which he con- 
 tinued until his death, June 7, 1882. 
 
 Mr. Stoughton was a most conspicuous example of a self- 
 made man. He had a fine physique, was of impressive and 
 commanding appearance, of most agreeable manners, and 
 was noted in the senior bar for the princely entertainments 
 he gave to the judges or distinguished lawyers visiting New 
 York. 
 
 No man at our bar had warmer and more devoted friends 
 who were attracted to him by his genial disposition and 
 lovely character. 
 
 The Medico-Legal Society, as well as the profession of the 
 law, sustained a great loss in the death of Mr. Stoughton. 
 
TESTAMENTARY CAPACITY 
 
 By ISAAC RAY, M. D." 
 Author of " Mental Pathology," " Mental Hygiene," etc., etc. 
 
 To the question, What shall become of a man's property 
 after death? The law of our country and our civilized 
 people, in recognition of what was deemed by the old 
 jurists as a jus naturale, replies, that he may dispose of it 
 himself before he dies, under some limitations required by a 
 regard for the rights of others. It only requires that when 
 exercising this right he should be of sound mind; and this 
 leads to the inquiry, What is meant by a sound mind ? At 
 first blush this would seem to be a strictly medical question, 
 and, so regarding it, the physician considers it as a matter 
 of health or disease, of normal or abnormal condition. The 
 jurist, on the other hand, ignoring entirely the physical 
 element implied in the question, considers it solely as a 
 matter of mental capacity. As in cases that come into liti- 
 gation both parties urge their views as the proper guide to 
 the ultimate decision, discrepancy and conflict must nat- 
 urally follow. Much of this diversity of views arose on both 
 sides, undoubtedly, from a very imperfect knowledge of the 
 subject matter itself, as the slightest examination will 
 show. 
 
 From the earliest times the law has recognized insanity 
 as a disturbing element in human conduct, and allowed it to 
 modify, more or less, its administration of justice. There- 
 fore, the question of questions on this subject is, how far, 
 and in what manner, this disturbing influence really ex- 
 tends. To answer this question, resort has been had to two 
 sources of instruction. One is, that observation of the in- 
 
 * Read before the New York Medico-Legal Society, June 13th, 1877. 
 
422 TESTAMENTARY CAPACITY. 
 
 sane which any one may make in the ordinary walks of life. 
 While we admit that much may possibly be learned in this 
 way, yet it is no less certain that impressions thus obtained 
 are quite unreliable for any practical purpose. A very few 
 cases can only come under the cognizance of any individual, 
 and the notice taken of them must necessarily be hasty and 
 superficial. The more demonstrative symptoms only will 
 arrest the attention, while the less obvious, though, perhaps, 
 more significant, may be overlooked altogether. Neither 
 in this way is there any element of progress. No amount of 
 attainment leads to fresh attainment. It lives and dies with 
 him who makes it. Observers more sagacious than Shake- 
 speare and Waiter Scott can scarcely be expected. And yet 
 the current ideas respecting insanity are chiefly derived from 
 this source. 
 
 The other source of information is that, where insanity is 
 studied as a disease, in the spirit and methods of a scientific 
 inquiry. Here not a few only, but all its phenomena are ob- 
 served. Its various phases, as presented from day to day, 
 from month to month, and from year to year, in the different 
 grades and stages, are carefully studied, with the abundant 
 facilities afforded by the modern hospital for the insane. 
 The study of the physiological and pathological laws by 
 which it is governed, of the ancestral defects in which it 
 originates, and of the adverse influences by which it is de- 
 veloped, throws light on the character of each individual case, 
 without which we can scarcely avoid mistake. 
 
 Ideas derived from this quarter have always determined to 
 some extent the rules and practices of the English law, not, 
 however, without great resistance, especially in modern times. 
 The classification of mental diseases, the terms and phrases 
 found in medical books, were freely adopted into the civil 
 law, with such practical consequences as they would natur- 
 ally suggest. The psychological relations of the different 
 forms of insanity were but little, considered by the ancient 
 physicians, and, of course, they could furnish the lawyers 
 with little aid in the work respecting it which fell to them. 
 Indeed it could not have been otherwise, for their means of 
 learning about insanity were hardly better than those pos- 
 
TESTAMENTARY CAPACITY. 
 
 423 
 
 sessed by the world in general. Their ignorance of anatomy 
 and physiology led to the crudest theories on the nature of 
 disease, and their observation of its phenomena was directed 
 by a false pathology, rather than by any methods of exact 
 and patient inquiry. The only advantage they possessed 
 over others in the study of insanity, consisted in the more 
 close and continuous observation of individual cases which 
 their professional duties required. Through the whole 
 mediaeval period, and long after the revival of learning, 
 medical writers were content to abide by the notions of 
 Celsus and Galen, and these were all they could offer to aid 
 the lawyer and the law-giver in the administration of justice. 
 By this aid, such as it was, the latter undertook to say how 
 far and in what way insanity modifies the legal consequences 
 of human conduct. To simplify the process, they found it 
 convenient to consider the disease in its different forms, or, 
 more correctly speaking, in its different grades of apparent 
 severitv. The first systematic attempt of this kind was made 
 by Lord Coke, who recognized four descriptions of persons 
 as being non compos mentis — viz : idiots ; those who, by sick- 
 ness, grief or other accident, have wholly lost their memory 
 and understanding; those called lunatics, who have some- 
 times their understanding and sometimes not; and lastly, 
 those who, by their own vicious act, have deprived them- 
 selves for a time of their memory and understanding, such 
 as drunkards. Rude as this classification is, it has some 
 semblance of correctness; but, like the more elaborate rules 
 and tests, of more recent times, it labors under the defect of 
 being difficult of application. It affords no help to settle the 
 question whether, in a given case, the person concerned be- 
 longs to either of these classes. Regarded as a scientific 
 formulary it is quite defective, because it ignores completely 
 some well- recognized forms of mental disease. Many years 
 afterwards, Lord Hale, availing himself of the more advanced 
 medical knowledge of his time, corrected this defect in some 
 degree, and ventured upon some rules for the settlement of 
 the practical question. But, with all their defects, and in the 
 .facie of the, better knowledge of our times, the doctrine of 
 these men still govern, in a considerable degree, the decisions 
 of English and American courts. 
 
424 , TESTAMENTARY CAPACITY. 
 
 Unquestionably, they reflected and confirmed the prevalent 
 sentiment which regarded the last will and testament as an 
 instrument too sacred to be easily disturbed. And we know, 
 as a matter of fact, how jealously it has been guarded from 
 all assaults, and especially from such as were directed against 
 the mental competence of the testator. Let us now examine 
 the decisions of the courts in the new light shed upon the 
 subject by the progress of medical science during the last 
 two centuries, for within that period have occurred the two 
 great discoveries of the circulation of the blood and of the 
 functions of the nerves. And the same period has witnessed 
 the establishment of multitudes of hospitals for the insane, 
 affording opportunities for the clinical study of the disease, 
 and for the observation of the ways, manners, conduct and 
 conversation of the insane never enjoyed before. 
 
 In that form of mental disorder called acute mania, in 
 which the mental movements are continuously strange, wild 
 and incoherent — madness without method — the testamentary 
 incompetence of the patient has never been questioned. In- 
 deed, the condition is one in which we should hardly expect 
 any disposition to make a will, and I am not aware that such 
 a one has ever been offered for probate. Lord Coke, you 
 observe, speaks of a description of lunatics who have some- 
 times understanding and sometimes not. This statement has 
 reference to a phenomenon once supposed to be a very com- 
 mon occurrence — I mean that of lucid intervals, as they are 
 called. So common were they thought to be, that in every 
 case of alleged insanity, the question of a lucid interval was 
 always raised as a matter of course. In fact, the practice has 
 not yet entirely ceased. The idea is, that in most insane 
 people reason returns at intervals, and with it their original 
 competence and responsibility. The law not only supposes 
 the probability of such a period, but the party availing him- 
 self of the plea of insanity was obliged to show — even though 
 the burden of proof may not always have been put upon him 
 directly- — that there was no lucid interval. Considering how 
 small a foundation this whole doctrine of lucid intervals has, 
 it is difficult to account for its prevalence. Unquestionably, 
 it sometimes happens that an insane person comes to himself, 
 
TESTAMENTARY CAPACITY. 425 
 
 manifesting his natural propriety of conduct and conversa- 
 tion, his memory and perception apparently clear, the cloud 
 returning after a few days as dark and dense as before. Ex- 
 actly how far the mind in this condition is free from the in- 
 fluence of disease we never can know. Considering, how- 
 ever, the suddenness of the change, the brevity of its dura- 
 tion, and the long continuance of the disease when it occurs 
 in chronic cases, it is not likely that the mind is restored to 
 its normal degree of clearness. It must be borne in mind, 
 also, that, as described by distinguished legal authorities, 
 such intervals are of very rare occurrence. I have not seen 
 more than half a dozen cases in all my experience. All 
 nervous diseases are subject, more or less, to a ceriain law of 
 periodicity, by reason of which at intervals their regular 
 course is changed, and other incidents come and go in a cer- 
 tain order of succession. The change thus produced may 
 sometimes amount to an entire disappearance of the signs of 
 disease. This phenomenon is not unfrequently witnessed 
 in the early stage of acute mania. Within the first month 
 there may occur a rather sudden cessation of the manifesta- 
 tions of disease, in which the patient is calm, quiet, talks and 
 behaves sensibly, though, if closely observed, there will be 
 found some indistinctness of memory and confusion of 
 thought, especially with reference to the circumstances of 
 the attack. This condition has gften been confounded with 
 lucid intervals, especially by lawyers, who find it difficult to 
 see a distinction which can be visible only to the long- 
 practiced observer. To the common eye, any remission in 
 which the patient is tolerably calm after being violent, and 
 answers a few questions rationally, seems like a lucid interval. 
 Admitting, as I do, that a valid will may be made in the 
 lucid interval, it is so likely that some shadow of disease 
 may rest upon it, that any testamentary act during that 
 period should be very closely scrutinized. Some qualifica- 
 tions for the act are required not otherwise needed. It 
 should be shown that changes in the circumstances and con- 
 ditions of those whom the testator is disposed to benefit, 
 (having occurred when he was incapable of understanding 
 and appreciating them,) were brought to his knowledge and 
 
426 Testamentary capacity. 
 
 comprehension, since such things would naturally affect the 
 dispositions of the will. Because it must be borne in mind 
 that the past, for months or years, may have been a com- 
 plete blank, or filled with strange and deceptive images, 
 In short, we may Conceive of a case where every testa- 
 mentary qualification was possessed ; but certainly the fact 
 must be of rare occurrence, and difficult of proof. I know 
 of only one case reported of a will made in what was called 
 improperly a lucid interval, and established, that of Cart- 
 wright v. Cartwright, i Phillimoie, go. The testator was in 
 an asylum, and so severe was the grade of her disease, that 
 she had restraint on her limbs at the moment when she 
 called for pen, ink and paper in order to write her will. 
 This she did at last, after writing one on several pieces of 
 paper, which she tore up and threw into the grate, and' 
 walking up and down wildly, and muttering to herself. The 
 will was established, the court deciding that it was made 
 during a lucid interval, on the strength of the internal evi- 
 dence, as it made a natural and consistent distribution of 
 her property. This fact the court considered conclusive 
 proof that a lucid interval had taken place. The result may 
 have been right ; but it was reached bya sort of logic known 
 as reasoning in a circle. The correctness of the will proves 
 the interval, and the interval being proved, makes the will 
 valid. Had the court, while squarely admitting the insanity 
 of the testator, declared that the character of the act showed 
 that she was still rational enough to make a valid will, it 
 would have uttered good sense and good science. Here we 
 see the binding influence of the old law as expounded by 
 Coke. It being proved that the testator was a lunatic, she 
 was necessarily non compos, and could become otherwise only 
 by recovery or a lucid interval. 
 
 This influence has not yet entirely lost its force, for I ob- 
 serve that lawyers are not content with proving competence 
 sufficient for the act in question, but also labor" hard to 
 prove also perfect soundness of mind. In a case that came 
 under notice two or three years since, an attempt was made 
 to void the contracts of a person recently deceased, on the 
 ground of insanity. It was shown that the transaction — 
 
TESTAMENTARY CAPACITY. 427 
 
 the sale of coal lands — was just and fair in every particular; 
 that he obtained a price pronounced by his neighbors and 
 advisers to be a fair one ; and' that he sold, then and there, 
 without waiting for a prospective rise in value, simply be- 
 cause he needed the money. That he was a lawyer in full 
 practice, a leader at his bar almost up to the day of his 
 death, and all the while the trusted counsellor of several 
 large corporations — all this needed no proof, for it was seen 
 by everybody. And yet, because of the admitted fact that 
 this man had always been remarkably eccentric in his ways 
 and manners, week after week was spent in endeavoring to 
 show either that he was or was not technically insane. If 
 the administration of the law has for its object the pro- 
 motion of justice among men, we may venture to say that 
 the means it used in this instance were signally irrelevant. 
 
 Farther examination of Coke's classification of the non 
 compos mentis, furnishes fresh proof how little help it gave 
 the medical jurist in settling the questions that came before 
 him. 
 
 " One class," he says, " consists of those who, bysickness, 
 grief or other accident, have wholly lost their memory and 
 understanding." The word wholly is probably used inad- 
 vertently, because it would refer to persons in the very last 
 stage of dementia, whose acts would scarcely become matter 
 of litigation ; whereas he had in mind, no doubt, a numer- 
 ous class, who, while moving about among men, and taking 
 some part in the affairs of life, are, nevertheless, laboring 
 under considerable mental infirmity. We have reason to 
 think that this class was meant to embrace the subjects ot 
 senile dementia, of the weakness of old age, and of the 
 damage inflicted by paralysis and other cerebral affections. 
 His allusion to grief and accident implies, probably, a mis- 
 taken notion he had conceived respecting the cause of the 
 mental affection. Taken as a whole, this class, unquestion- 
 ably, has always furnished the courts with a greater amount 
 of litigation than all others put together, in the matter of 
 wills. The more exact and well-defined are our notions of 
 mental capacity, the more foundation they have in close 
 personal observation of this class of persons, the better will 
 
428 TESTAMENTARY CAPACITY. 
 
 be our administration of justice. Much of the apparent 
 conflict in the adjudication of their cases has arisen, I 
 chink, from a faulty appreciation of the mental qualities 
 chiefly concerned ; and therefore I invite your attention, 
 for a moment, to this point. 
 
 Old age is usually accompanied by a certain enfeeble- 
 ment of the mental as well as the bodily powers. This con- 
 dition does not imply unsoundness or incompetence. It 
 merely means a diminished power of endurance; an inca- 
 pacity for those long sustained efforts once comparatively 
 easy ; more difficulty in grasping obscure and remote re- 
 lations. The mind has lost none of its characteristic tastes, 
 and none of its fondness for its accustomed pursuits ; but 
 it is satisfied with easier tasks and welcomes longer inter- 
 vals of rest. The only mental faculty obviously involved in 
 this condition is the memory, especially of recent incidents, 
 even while old ones are well retained. The forgetfulness 
 of young people comes from carelessness and a predomi- 
 nant interest in other thoughts. With the aged the new 
 impression, however vivid at first, fades away from a lack of 
 power in the brain to retain it. It must be quickly and 
 frequently repeated, before it will endure. So far the change 
 may be considered as the normal result of old age, and 
 destitute of any legal consequences. Occasionally, indeed, 
 in the closing years, the mind displays even more than its 
 wonted vigor and brilliancy. It was these exceptional in- 
 stances that led the poet Waller to say : 
 
 "The soul's dark cottage, battered and decayed, 
 Lets in new light through chinks which time has made.'' 
 
 Sometimes the change here described proceeds still 
 farther, and induces a condition that is abnormal, ending in 
 senile dementia. The memory becomes less and less tenacious; 
 the perceptions less exact and clear, one person or thing 
 being mistaken for another, and their relations misunder- 
 stood. Then the judgment — that is, the power of discern- 
 ing the relations of cause and effect, of distinguishing be- 
 tween the specious and true, of taking in the remoter con- 
 siderations germane to the case in hand, of weighing and 
 rightly appreciating conflicting claims — loses its vigor, and 
 
TESTAMENTARY CAPACITY. 429 
 
 is easily led astray by false lights. And so the process of 
 decay goes on, until it reaches it utmost limit in virtual ex- 
 tinction of the mental powers. Now what we would like to 
 know is, the precise point at which testamentary capacity 
 ends ; and this, of course, is beyond our reach. As to the 
 effect of this condition, both in its earliest and its latest stage, 
 there can be no diversity of opinion. It is during the inter- 
 mediate stage that it gives rise to obscurity, doubt, conflict- 
 ing evidence and abundant litigation. 
 
 To arrive at a correct decision, we must first understand 
 what are the intellectual powers necessary to testamentary 
 capacity. In the first place, the memory must be active 
 enough to bring up to mind all those who have natural 
 claims on the bounty of the testator; to make him aware 
 of the nature of his property, its location, the incum- 
 brances upon it and his debts. If he makes bequests in 
 certain sums of money, he should know with some degree 
 of exactness the value of his property ; and if he has made 
 previous wills, he should be aware of their contents. 
 Whether he actually had such a memory will generally be 
 determined, for the most part, by the circumstances of the 
 transaction. In most cases evidence is given respecting the 
 general condition of the memory as manifested in the ordi- 
 nary discourse, and this, coming as it does, in a loose, de- 
 tached, fragmentary manner, from persons usually unaccus- 
 tomed to observe mental phenomena closely, requires to be 
 carefully and intelligently examined. The lapsesof memory 
 exhibited by all old people must be distinguished from that 
 utter loss of memory that no effort can retrieve, even for a 
 moment. The former is chiefly in regard to recent things, 
 which are readily brought back to mind and are retained for 
 a while. The latter embraces old as well as recent inci- 
 dents, impressions customary as well as casual, ideas the 
 most as well as the least familiar. The old man who is con- 
 stantly mislaying his spectacles, forgetting the face of the 
 person to whom he was introduced the day before, and 
 marching up the broad aisle of the church with an umbrella 
 over his head, may be found, when his attention is specially 
 directed to a subject, to remember its prominent points, 
 
43° TESTAMENTARY CAPACITY. 
 
 understand them well, and govern himself accordingly. 
 
 Let it be observed, in this connection, that many of those 
 old people so forgetful of passing events and so careless of 
 little proprieties, need only to have their attention fixed on 
 the matter in hand to display no lack of memory or under- 
 standing. If, on the other hand, a person has utterly forgot- 
 ten the events of his earlier age ; if he cannot tell his own 
 age, or the year of our national independence, is unable to 
 tell how many six and six make, and has forgotten whether 
 his estate is in lands or houses or stocks, he surely has lost 
 his testamentary capacity. 
 
 The mental infirmity most often the source of testament- 
 ary incapacity, is impaired judgment. To make an equitable 
 distribution of his estate among those connected with him by 
 blood or affection — such a one, I mean, as lie would have 
 made while confessedly sound — implies on the part of the 
 testator a variety of considerations that cannot safely be 
 overlooked. He should be able to appreciate properly the 
 nature of their claims, their present and prospective necessi- 
 ties and the favors they have already received ; and all this, 
 not to mention other considerations, requires a nice discrim- 
 ination, and the power of looking before and after. If the 
 bequests indicate any deficiency in these respects, it certainly 
 furnishes ground of suspicion. 
 
 There is a large class, you observe, still unprovided for in 
 the schedule of Coke. I refer to that of persons neither 
 idiots, lunatics, nor the victims of sickness, grief or old age 
 — persons having by nature a deficient mental endowment, 
 and embraced under the general appellation of imbeciles. 
 The wills of such persons often come into dispute, and though 
 their disposal is determined by the same principles as those 
 last referred to, yet they give rise to a larger range of specu- 
 lation and doubt. In the one case, the question on which the 
 result may depend is, How much mental power has been lost? 
 while in the other the question is, How much was ever 
 possessed? The difficulty of the question is increased by the 
 fact that in many, if not most imbeciles, there is much in- 
 equality in the strength and development of the several 
 mental faculties. The same person may be shrewd, even 
 
TESTAMENTARY CAPACITY. 43 j 
 
 sharp, in some transactions, dull and foolish in others ; at 
 one moment uttering a pithy remark, at another leaving no 
 doubt of his native simplicity. With shrewdness and folly 
 thus displayed side by side, it is not strange that different 
 observers are sometimes very differently impressed by what 
 they witness. One who has sold him a gun or a fishing-rod, 
 or made for him some little article of use or ornament, and 
 listened to his comments, is ready to pronounce him about 
 as sensible as the generality of men. Another who has wit- 
 nessed his conduct in affairs requiring some prudence and 
 judgment, is strongly impressed with the depth and breadth 
 of his simplicity. And this is a specimen of the evidence 
 heard in our courts, when they are called to adjudicate in 
 cases involving the persons or property of simple-minded 
 people. It is also a lamentable fact, that the disposition to 
 form positive conclusions on the strength of a partial one- 
 sided observation, is about as common among men of some 
 culture as it is among those who are without pretensions to 
 any. Until mental manifestations are better understood, we 
 shall continue to witness these strangely conflicting con- 
 clusions in ligitation involving the interests of imbecile 
 persons. 
 
 To meet this state of things, the first thought was to fix 
 upon some arbitrary, specific standard of mental power, by 
 which the mind of imbeciles should be measured. I know 
 of only one that has survived the test of experience, and 
 even that is seldom offered now. It has been said with some 
 show of authority, that to make a valid will one must have 
 capacity sufficient to make a contract. Had these conditions 
 been reversed, and the proposition been, that as much mind 
 was required to make a contract as to make a will, it would 
 have had as much support in the nature of things as the 
 other, and that is none at all. Until we are satisfied as to 
 the exact amount of mind necessary to make a contract, this 
 measure will scarcely help us, even with the estimate I once 
 heard given from the bench, that it is as much as is required 
 in the ordinary business of life ; which must remind us of 
 that venerable measure of size with which we are all famil- 
 iar, "As big as a piece of chalk." The only rule founded 
 
43 2 TESTAMENTARY CAPACITY. 
 
 in reason and justice is, sufficient mind for the occasion. 
 I hardly need to suggest, that to distribute a large estate 
 equitably and judiciously among a considerable number of 
 persons and institutions, must require a stronger and wider 
 exercise of mind than would be needed for the disposal of a 
 small estate among the few legally entitled to a share of it. 
 And as much may be said of a contract involving many 
 contingencies, as compared with one disposing of a few 
 acres of land. 
 
 Thus far, it will be seen, the elements of testimentary capaci- 
 ty are strictly intellectual, pertaining to the pure reason. A 
 testament, however, is not always the product exclusively of 
 the understanding. The moral part of our nature — the senti- 
 ments, affections and emotions — maybe as potent an agency 
 in its production as the intellectual. Hopes and fears, at- 
 tachments new and old, a sense of dependence, a chronic 
 habit of submission and deference, assiduous attentions, 
 crafty insinuations — these may greatly prevail over the most 
 obvious claims created by the law of inheritance. Induce- 
 ments of this character are not excluded by the law. All that 
 the law requires in feeble-minded people is, that they be not 
 excessive, calculated to drive the mind from well-chosen, 
 well-matured arrangements, and divert the course of proper- 
 ty into channels it would not otherwise have taken. 
 
 In examining these cases, we must never forget that both 
 the intellectual and the moral faculties may have been con- 
 cerned in their production, because, if either of these factors 
 are left out of the account, we are greatly in danger of being 
 misled. Nor must we forget, while investigating their re- 
 spective agency, that they may act with some degree of inde- 
 pendence of each other. The same person who thinks cor- 
 rectly and sensibly so far as he goes, may readily yield to in- 
 ducements strongly presented to his feelings. In a case lately 
 tried in Massachusetts, this distinction was so sharply and so 
 pertinently made, that it may claim a moment's attention. A 
 man, never married, confessedly feeble-minded, and under 
 guardianship, concluded to make his will, which he did with- 
 out urging or hindrance from any quarter. In this he be- 
 queathed his property — $200,000 — to various charitable insti- 
 
TESTAMENTARY CAPACITY. 433 
 
 tutions, and to a few intimate friends from whom he had re- 
 ceived much care and kindness, completely ignoring his 
 sisters, for the reason, as it appeared in evidence, that they 
 took no notice of him and were wealthy enough already. In 
 making the will he was aided by a lawyer of the highest 
 moral standing, and the whole transaction was free from 
 suspicious circumstances. Two or three years afterwards, 
 while in company with certain persons whose relations to 
 him gave them much influence over him, he became so much 
 excited by their reproaches and solicitations, that he called 
 for the will and drew his pen through his signature. The 
 will was offered for probate ; but the judge declined to 
 approve it, and an appeal was made to the Supreme Judicial 
 Court, in which atrial ended in the establishment of the will. 
 The jury virtually said the will was a rational act, rationally 
 and calmly done, with memory and judgment sufficient for 
 the purpose ; but the revocation was done in a moment of 
 passion, excited by the suggestions of others, and too strong 
 for his feeble mind to resist. The verdict of the jury was 
 approved by the court. 
 
 The question of testamentary capacity in feeble-minded 
 people is generally connected with that of outside influence. 
 Sound-minded people may and often do ask ;idvice in the 
 final disposition of their property, and the result is, very like- 
 ly all the better for it. Such advice may be needed all the 
 more where the mind is weakened by nature or disease ; but 
 when obtained, it is always, and very justly, viewed by the 
 law with suspicion, and the dominant question is, whether or 
 not the testator has been subjected to what is called undue 
 influence — because, sound or unsound, strong or weak, his will 
 must be his own will, and not other's. If the influence is 
 such, that the wishes and the interests of other parties, rather 
 than the testator's, are represented, then the law supposes 
 that the will is really not his will. In order to establish the 
 fact of undue influence, however, a foundation must be laid 
 by first proving the fact of mental deficiency. The attempt 
 is sometimes made by lawyers, aided by physicians, to reverse 
 the process. Unless the testator has clearly manifested 
 some mental unsoundness by his previous acts, the proof of 
 
434 TESTAMENTARY CAPACITY. 
 
 undue influence should be strong enough to be unmistakable. 
 It often happens that no such can be shown ; that up to the 
 moment of the making of the will, no indications of feeble- 
 ness, of delusion or wandering have been witnessed. I do 
 not say that even under such circumstances undue influence 
 may not be exerted. When we consider the enfeebling effect 
 on body and mind of a long last illness, of the many infirmi- 
 ties that often attend this period, and of the utter prostration, 
 of the will produced by pain and a sense of complete depend- 
 ence, we can scarcely conceive of conditions better fitted for 
 the exercise of an undue influence over testamentary disposi- 
 tions. The courts of our time have become quite familiar 
 with a certain class of cases presenting these traits. An old 
 man marries a young woman, and within a year or two dies, 
 leaving a will greatly in her favor, much to the disappoint- 
 ment of relatives who would otherwise have received the 
 whole of the estate. These cases are exceedingly embar- 
 rassing, for we are often left without any clew to guide us 
 to a rightful conclusion. We are sure it is such a will as the 
 testator would not have made in the vigor and flush of 
 health; while we hesitate to say, under lhe conviction th;it 
 a man has a right to do what he pleases with his own, how 
 far a sense of gratitude for kindness and service may be al- 
 lowed to shape his decision. Fortunately, peihaps, it fre- 
 quently happens that some circumstance sheds a little light 
 upon the case, enabling the jury, if not to decide according 
 to its legal merits, yet to do what, in their rude estimate, 
 " is about right." 
 
 You observed, no doubt, that Coke, in his classification of 
 mental disorders, ignores entirely a form of the disease which 
 is far from being very rare. The reason was, probably, that 
 it seemed so partial in its operation- — it left so much of the 
 mind free, apparently, from its influence — that it was not 
 supposed to impair the person's responsibility for civil or 
 criminal acts. Nearly a hundred years went by before it was 
 first formally recognized by Lord Ha'e, as well as another 
 hundred years after him before the law began to take it into 
 the account as an element of excuse for human delinquency, 
 or regard it as a claim on its protection. I refer to what is 
 
TESTAMENTARY CAPACITY. 435 
 
 now called partial insanity, in which a person, while enter- 
 taining some notions having no possible existence, in all 
 other respects talks and acts like oher men. How to meet 
 the difficulties suggested by this form of mental disease, 
 was a problem entirely beyond the reach of this luminary of 
 the English law ; and he passed it along to his successors, 
 many of whom, even to this day, have been as unwilling as 
 •he to give it any practical effect in the administration of 
 justice. The light, shed upon the nature of disease, and 
 especially of insanity, by our better methods and oppor- 
 tunities of study, has not been utterly disregarded ; and 
 though we are too often obliged to witness the display of the 
 old ignorance, rather than the new knowledge, yet the time 
 is coming, it is to be hoped, when the law will be in entire 
 accordance with science. 
 
 It is somewhat curious, that up to the present century we 
 hear nothing of partial insanity, strictly so called, in civil 
 cases ; and in criminal cases, where it was sometimes offered 
 in defense, it scarcely received a respectful hearing. The 
 common idea that the monomaniac had still reason enough 
 left for all practical purposes, protected his testamentary 
 privileges ; and generally, it may be supposed, the rule 
 worked no injustice. Had the courts been brought face to 
 face with a will the manifest offspring of a gross delusion, 
 they might have refused to sustain it. It is hardly conceiva- 
 ble that they would have approved a will devising a large 
 estate to the building of a railway to the moon (though 
 hardly more a folly than many exclusively mundane that 
 have been built), however prudent, sagacious and intel- 
 ligent the testator may have been in the ordinary affairs of 
 life. It was not until 1828 that this question of the legal 
 effect of partial insanity on the testamentary capacity was 
 squarely met and rightly decided. I refer, of course, to the 
 case of Dew v. Clarke, which came up for final adjudication 
 in one of the English Ecclesiastical Courts, Sir John Nicholl 
 presiding. The matter in issue was the validity of the will 
 of a London surgon, who bequeathed the bulk of his estate 
 to his nephew, leaving only a life interest in a small portion 
 of it to a daughter, his only child. The testator had, for 
 
43^ TESTAMENTARY CAPACITY. 
 
 many years, very creditably practiced his profession ; and 
 though regarded by his patients and many others as eccen- 
 tric and irritable, was never suspected by them of laboring 
 under any kind of mental derangement. On the other 
 hand, it appeared that he had always entertained the strong- 
 est aversion towards this daughter, describing her to his 
 friends and strangers as prone to all manner of vice — as a 
 perfect fiend, an imp of Satan — charging her even with im- ■ 
 possible crimes. His treatment of her was almost incred- 
 ibly savage, not only compelling her to perform the most 
 menial offices, but he would often strike her with his clenched 
 fists, cut her flesh with a horse-whip, and once, when she 
 was only ten or eleven years old, he stripped her naked, tied 
 her to a bed-post, and after flogging her with a large rod 
 intertwisted with brass wire, rubbed her back with biine. 
 It appeared that there was no cause for this extraordinary 
 antipathy. The girl was described by all who knew her as 
 amiable and docile in her disposition, and perfectly correct 
 in her deportment. Against this will the judge pronounced 
 an exhaustive and most elaborate judgment, untrammelled 
 as he was by the precedents of the common law, and in- 
 spired by the larger spirit and freedom of the civil law. 
 Remarkably well informed on the nature of insanity, he dis- 
 cussed its effect on the mind of the testator with a sagacity 
 never before witnessed in a court of law, reaching to the 
 conclusion that the mental disorder was fatal to the validity 
 of the will. Against the doctrine there announced, novel 
 and unprecedented as it was, no voice of dissent has ever 
 been raised. It is one of the few things in the medical 
 jurisprudence of insauity which may be considered as 
 established. 
 
 Sir John Nicholl, be it observed, was careful to restrict the 
 operation of the principle to the case before him. The 
 mental disorder was sufficient to vitiate, not any will, but the 
 will in question. Had the testator bequeated his property 
 to his daughter, he would, probably, have established the 
 will, insane as he was. The insanity would have been no bar 
 to a natural and proper distribution of his estate ; and 
 so, I apprehend, the matter is now generally regarded. 
 
TESTAMENTARY CAPACITY. 437 
 
 The objection arises only when the distribution is not deemed 
 to be natural and proper by various relations, who find it for 
 their interests to destroy the will. The principle being 
 settled that insanity does not necessarily impair a man's 
 capacity to make a will, any more than it destroys his power 
 to do many other things as well as ever, its effect ought not 
 to be determined by any arbitrary rule, but rather by that 
 judicious consideration of the various circumstances of the 
 case which is founded on correct views of the . nature 
 of insanity and the ordinary motives of human conduct. 
 In accojdance with these views, a case was adjudicated in the 
 Court of Queen's Bench, in 1870, Banks v. Goodfellow, L. R. 
 v. Q. 549, Chief Justice Cockburn delivering the opinion of 
 the court. Here a will was established, notwithstanding 
 the testator was proved to have entertained some gross 
 delusions, for it was obvious that these delusions could not 
 possibly have influenced the dispositions of the will. These 
 two cases, I presume, have settled the rule of law in regard 
 to the effect of delusions on testamentary competence, and 
 thus, happily, brought the law of the land into harmony 
 with the laws, physiological and pathological, of the mental 
 constitution. And let me say in this connection, that the 
 effect of mental impairments on the testamentary power is 
 not to be estimated solely by their demonstrative symptoms, 
 for it may be greatest when scarcely seen by the world at 
 large. I have never met with worse wills than some made 
 under such circumstances. I have known a will made shortly 
 after an apparently slight attack of paralysis, pre-eminently 
 absurd, irrelevant to any worthy purpose, and almost if not 
 quite impracticable of execution. And yet the testator 
 seemed to have completely recovered, and continued his 
 ordinary pursuits till prostrated by a second attack. 
 
 Wise and proper as the doctrine may be, generally stated, 
 that a delusion should vitiate any testamentary disposition 
 made under its influence, cases can easily be imagined where 
 it would be exceedingly embarrassing to determine the exact 
 range of its application. We readily admit that the will of a 
 man disinheriting all his heirs-at-law — brothers, sisters, 
 nephews and nieces — in the belief that they have been at- 
 
43^ TESTAMENTARY CAPACITY - 
 
 tempting to take his life, should not stand. But supposing 
 tuis delusion referred only to a single relative, the rest of 
 them being properly remembered, I think we should hesitate 
 to break the will for that reason alone. 
 
 In pursuing the progress of thought on this subject, we 
 meet at last one of those extravagences of opinion, which, 
 coming from men of commanding intellect, produce sur- 
 prise, if not admiration. Loid Brougham declared on one 
 occasion, that partial insanity, however limited apparentl)', 
 as well as the more general forms of the disease, should 
 vitiate all the patient's civil acts. He regards the mind as 
 a single, indivisible potency, and consequently that any im- 
 pairment of it must be absolute, not partial. On this theory, 
 of course, there is no place for ihe practice of dividing and 
 subdividing the mind, some portions becoming unsound, 
 while others remain sound. Lord Brougham's doctrine is 
 not without warrant, certainly, in the pievalent meta- 
 physical theories of the last century, and, accepting them, 
 it would be easier to reject it with feelings of wonder and 
 ■surprise, than to refute it. If inconsistency would furnish 
 a conclusive argument against it, it may be found in the 
 statement he once made, that a man might be so unsound 
 as to be regarded by his Maker as irresponsible for criminal 
 acts, while he might be justly held responsible by his fellow- 
 men. 
 
 And here we see the injustice that might be committed by 
 making insanity, abstractly speaking, incompatible with 
 testamentary capacity ; for we say that a man who disinherits 
 his heirs-at-law under the delusion that they have attempted 
 to poison him is thereby non compos, how shall we answer the 
 question whether his will should be approved, even if he 
 had bequeathed his property to those heirs-at-law, notwith- 
 standing his delusions ? 
 
 The effect on testamentary capacity of extraordinary -be- 
 liefs, fanciful projects, or bequests for impracticable pur- 
 poses, is frequently not veryeasily determined. Such things 
 are suggestive of insanity, and the event has sometimes 
 been made to turn on nice distinctions between insanity and 
 eccentricity. In these cases the pioper line of inquiry must 
 
TESTAMENTARY CAPACITY. 439 
 
 depend on the circumstances of each particular case, and 
 the decision should be governed more by rhe dictates of 
 common sense, than any arbitrary rules of law. In some 
 cases there can be little difficulty in arriving at a satisfactory 
 conclusion. If a man noted for some oddities of thinking 
 and acting, but otherwise correct and shrewd, believes that 
 Brandreth's pills :ire a certain cure for all diseases whatever, 
 and that everybody who would take enough of them would 
 live to a good qld age, this notion would hat dly vitiate a will 
 making unexpected and unjust bequests having no connec- 
 tion with and traceable in no way to it. If, on the contrary, 
 he had devoted a considerable portion of his estate to the 
 maintenance of a fund for supplying the poor with Brand- 
 reth's pills, this, certainly, would be good reason for breaking 
 the will. Take another case. In Massachusetts, lately, an 
 elderly gentleman in failing health, and with divers nervous 
 ailments, was induced to try the movement cure, and came 
 at last to conceive the most exaggerated notions of its 
 medical efficacy, though it never helped him much. Indeed 
 some of these notions almost, if not quite, amounted to de- 
 lusion. In this state of mind he made his will, by which he 
 appropriated a great part of his estate to the establishment 
 of an asylum for nervous invalids to be treated by the move- 
 ment method. I have no hesitation in saying that that will 
 was the offspring of a morbid nervous condition, if not of de- 
 lusion, and therefore not to be established. Whether certain . 
 mental manifestations are indicative of insanity or only ec- 
 centricity, is a point not always easily settled; and no splitting 
 of hairs on the question will prove so satisfactory as the exer- 
 cise of a little common sense. In many of these cases where, 
 apparently, the mental twist is very limited and of doubtful 
 character, a close scrutiny of the conduct and conversation 
 will show here and there traces of a more extensive influence, 
 thus shedding additional light on the matter in hand. 
 
 In presenting the subject of testamentary capacity in the 
 way I have, it was for the purpose of giving to the patho- 
 logical 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 
 
44° TESTAMENTARY OPACITY. 
 
 administration of justice in this particular must often be im- 
 perfect, until the light of medical science is freely admitted 
 and used, — not the light that has traveled 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. 
 
!pLAJ"" = \-^2--"^V^l 
 
 f ) 
 
William A. Beach. 
 
 William A. Beach was born at Saratoga Springs on the 
 13th day of December, 1809, and died in the city of New 
 York June 28th, 1884. He received an excellent academical, 
 but not a college education, and studied law in his native 
 village with the famous Nisi Prius judge, the Hon. Esek 
 Cowan. He was admitted to practice in 1832. Mr. Beach 
 was, in the truest sense of the term, a great lawyer. At the 
 time he commenced practice the bar of Saratoga was, in 
 proportion to its members, the most brilliant in the State, 
 and the attendance at its circuit court embraced the most 
 eminent lawyers from the counties of Albany. Columbia, 
 Rensselaer and Schenectady. At Saratoga Springs lived 
 Reuben H. Walworth, Chancellor of the State ; Esek Covven, 
 whom we have just named ; John Williard, the learned Vice- 
 Chancellor and Judge of the fourth judicial district ; Nicholas 
 Hill, Jr., one of the ablest lawyers our State has ever pro- 
 duced ; Judge Hay, Anson Brown, Judiah Ellsworth, Judge 
 Bates — all keen, able, noteworthy men in their profession ; 
 while on attendance at the circuit were Marcus T. Reynolds, 
 Sam. Stevens, Daniel Cady, John P. Cushman, Ambrose L. 
 Jordan and other eminent lawyers from the contiguous 
 counties. 
 
 It was in such company and with such surroundings that 
 William A. Beach drew his first legal inspirations ; and it 
 was with these men, when admitted to the bar and com- 
 mencing the trial of causes, he found himself confronted. 
 He was much the junior of even the youngest named, but he 
 started into professional life with a determination to try his 
 own cases, no matter who was his opponent. The youngest 
 lawyers and students attending the circuits, used to regard 
 with the most intense admiration the contests of the young 
 Beach with the sharp, hard-headed and quick-witted ndvo- 
 
WILLIAM A. BEACH. 
 
 cates just mentioned. For they were proud of the work of 
 a young man in whose footsteps they hoped themselves to 
 follow. Mr. Beach some time after removed to Troy, and 
 soon was retained in all the important cases of that section. 
 About thirteen years before his death he came to this city, 
 where his fame had preceded him. The great causes he was 
 engaged in are matters of legal history, and need not be 
 referred to here. As an advocate, embracing all the best 
 qualities which should adorn his profession, I am not pre- 
 pared to say I ever knew his superior. He indignantly 
 rejected all trick, craft and chicanery in the trial of a cause. 
 As an adviser he was conscientious and considerate. As an 
 advocate, who can forget his dignified demeanor, his unva- 
 ried courtesy, his marvelous process with a dishonest wit- 
 ness, his eloquence, his marked respect for the Court, 
 coupled with an independence of judicial action which often 
 frightened the younger lawyers who had retained him ? 
 With what a look of incipient rebuke he would regard a 
 judge who had made a ruling he believed to be erroneous, a 
 look coupled with an expression as if he must have mis- 
 understood what had just been announced ! He was one of 
 the most successsful lawyers of the land, and at the same 
 time was one of the most honest. The Court, when he stated 
 a matter of fact as within his own knowledge, accepted it 
 unconditionally. William A. Beach came fully up to the 
 true idea of what a great lawyer should be. He was honest, 
 he was conscientious, he was eloquent, he was profoundly 
 learned in the law, he was devoted to his profession, he was 
 kind of heart and merciful in his nature. R. b. k. 
 
MORAL RESPONSIBILITY. 
 
 By MORRIS ELLINGER, Esq. * 
 
 Medico-legal science has not lagged behind kindred 
 sciences in its progress ; it has passed the narrow field to 
 which its operations were originally confined ; its application 
 is no longer restricted to the mere investigation of cases 
 where the Judge required the professional help of the medi- 
 cal expert to determine the existence of crime We are en- 
 tering a period in the history of civilization when society 
 takes up the question how to prevent crime — how to improve 
 the moral and physical condition of the people, by which it 
 is hoped to eradicate crime more thoroughly than by the 
 punishment of those who violate the law. The transgressor 
 himself is no longer looked upon as an outcast ; one who has 
 forfeited all his rights. He is rather the object of pity and 
 commiseration as the unfortunate victim of circumstances, 
 whose condition is sought to be improved. This, at least, is 
 the spirit which more or less guides the modern system of 
 treating crime and criminals. This change of system is one 
 of the greatest reforms which some of our foremost minds 
 and best friends of the human race labor for. To lift up 
 humanity higher and higher is the great object pursued ; it 
 is a work of slow and gradual progress; it requires the help 
 of all in whose heart dwells the impulse of contributing their 
 mite towards perfecting the great temple of humanity. It 
 requires to arouse society to a higher conception of their 
 duties towards each other, to the responsibility which society 
 was to the individual, and the individual to society. If he is 
 
 * Read before the Medico-Legal Society, April 22d, 1875. 
 
44 2 MORAL RESPONSIBILITY. 
 
 a benefactor of the human race, who makes a blade of grass 
 grow where none grew before, the greater benefactor is he 
 who helps to redeem a human being from degradation, and 
 furnishes him the opportunity to resume his usefulness as a 
 link in the chain of the human family. There is no society 
 of men who can wield a greater influence in bringing about 
 such a reform as the society which I address. In it are united 
 the elements possessing the knowledge requisite to probe to 
 the bottom the old system pursued in the treatment of crim- 
 inals, to lay bare its abuses and faults, and find the proper 
 remedies by which the way may be paved for a new departure. 
 You have in your midst the naturalist, psychologist, the san- 
 itarian, the philosopher, whose observations and studies en- 
 able them to determine how far those that come within the 
 reach of the law may be held fully accountable for their acts, 
 as free agents, as men whose volition is absolutely within 
 their control, and therefore have to be dealt with by society 
 accordingly. On the other hand they may determine how 
 far others are victims of an unfortunate, malformed physical 
 organization, subjects of abnormal desires, and appetites of 
 morbid impulses, so powerful as to be beyond control. You 
 have again men in your society who are not only conversant 
 with the machinery provided by law for the protection of 
 society against the infringement of its rights and privileges, 
 but who can devise such legislation, by which the number of 
 those who live on the outskirts of society, as its perennial 
 enemies, may be brought within the genial moral influence 
 of regulated social life. 
 
 The student of human nature, of the laws which govern 
 the growth and development of our present state of culture, 
 jointly laboring with the interpreter of the laws in force for 
 the punishment and suppression of crime, constitute the ele - 
 ments best adapted to effect such practical reforms ; they are 
 best fitted to remedy the code existing in order to improve 
 the general condition of society. The time allotted to me 
 this evening will permit me to allude but briefly to such feat- 
 ures of the present system, which require the immediate at- 
 tention of the friends of the unfortunate. Two glaring in- 
 stances have been furnished of late in the history of criminal 
 
MORAL RESPONSIBILITY. 443 
 
 jurisprudence, which seem to prove conclusively that men 
 are not always free agents of their actions, but are the slaves 
 of a moral or immoral bent of character, implanted into their 
 nature from birth, victims of a criminal propensity inherited 
 from their parents. I allude in the first instance, to the boy 
 lately convicted in Boston for murder committed in the most 
 wanton and almost fiendish manner, apparently without any 
 other motive than that of satisfying an inborn lust for destroy- 
 ing human life. This boy is as much a phenomenon as those 
 children who display in early childhood wonderful profici- 
 ency in arts and other accomplishments, which as a rule are 
 the result of patient enduring labor. The one has received 
 as his birthright the divine grace of art and mental develop- 
 ment, the other the curse of moral deformity. The one pro- 
 pensity as well as the other is founded in their respective 
 physical organization ; both are innocent of the gifts that are, 
 as it were, forced upon them by a prodigal nature. The boy 
 murderer has not become what he is by education, by associ- 
 ation, by impressions upon his mind, received from without ; 
 he is impelled to his deed by "inspiration," if the word can 
 be applied in this sense. What is to be done with that boy 
 is the question pending before the supreme authority of 
 Massachusetts. The boy is certainly not responsible for the 
 deeds committed, certainly not morally responsible. In this 
 case it becomes merely a question of self-protection on the 
 part of society, and it would seem as if the most judicious 
 decision would be to let the law take its course and extin- 
 guish a life which can never be a benefit to the individual 
 himself, but a standing menace and threat to society. Society 
 has not only the right, but it is its duty to protect the com- 
 mon welfare, and in the performance of its duties such a life 
 as that cannot have any weight in the scale of justice. 
 
 But the case of this boy is one of many; not that the crim- 
 inal propensity is always of such a revolting character ; hap- 
 pily the hyenas in human form do not occur in alarming 
 numbers ; but many crimes are committed, impelled by in- 
 born impulses, and could the Judges see into that mysterious 
 chamber, the brain, they would acquit many a poor victim 
 who stands trembling before the tribunal of justice, as being 
 
444 MORAL RESPONSIBILITY. 
 
 innocent of any guilty intent. But with our still imperfect 
 knowledge of the motive power of human action, society has 
 to deal with the facts as they present themselves, yet patient 
 observation and careful examination of the history of indi- 
 viduals would enable us to bring greater discrimination to 
 bear in the adjudgment of criminals, and in their treatment. 
 
 The hereditary transmission of criminal propensities has 
 received' a remarkable illustration in the statement made by 
 Dr. Harris, based upon a careful ascertainment of facts of 
 the propagation of a large criminal population from one 
 mother abandoned by society to pursue a life of dissipation 
 and prostitution. As shown by Dr. Harris, mostly all the 
 descendants of that woman had to be dealt with by the judi- 
 cial authorities, and not few of them spent their lives in 
 penal establishments Of course, self-protection demanded 
 that these children of crime should be dealt with according 
 to their deeds ; but would it not seem that the actual respon- 
 sibility for these social excrescenses rested upon society 
 itself. 
 
 Does not the history of that unfortunate girl, as revealed 
 by Dr. Harris, remind one of the Scriptural verse: "Visiting 
 the iniquity of the fathers upon the children and upon the 
 children's children unto the third and fourth generations?" 
 
 If the sins committed by parents revenge themselves, and 
 they do revenge themselves, upon the future, yet unborn 
 generations, society has no moral right to inflict penal meas- 
 ures upon a generation, in the growth of which it bore some 
 share of the responsibility. And it is not in the past alone 
 that society tolerated and almost became paiticeps criminis 
 in the growth and education of a criminal populatiun, nor 
 are the examples confined, to thinly populated districts, to the 
 country sparcely settled. 
 
 The process of breeding, rearing, and educating criminals 
 is carried on to a much larger extent in our great cities, 
 under our very eyes. There are whole districts in our city 
 settled by a lawless population. The police authorities have 
 probably the history of every one of those individuals, who 
 live in constant conflict with society. They are not only per- 
 mitted to forge and perfect plans for the execution of their 
 
MORAL RESPONSIBILITY. 445 
 
 criminal intents, but they are suffered, without let or hin- 
 drance to propagate and educate a criminal population. I 
 believe I am justified in stating that the majority of the con- 
 victs populating our penal establishments, sent theie for 
 grave felonious crimes, come from these pest-holes of moral 
 depravity. 
 
 Nor is that population of which I speak of without lead- 
 ers and open champions. Men who claim to exercise a de- 
 cided influence in public affairs, and who are understood to 
 wield it in the interest of that lawless community, which 
 gives them their strength. I remember, at one of the recent 
 presidential elections, a high official of the Federal Govern- 
 ment pointed out to me a noted ciiminal, one known for his 
 desperate proclivities and the unscrupulous use which he 
 made of the knife and the pistol, who was then waiting for 
 an audience, to which he had been invited. As I subse- 
 quently learned, he figured at that election as one of the 
 chief leaders who marshaled the Federal supervisersof elec- 
 tion. 
 
 Of course the opposing friction had plenty of heroes to 
 oppose to this captain of Federal officers, who were to super- 
 vise the sovereign people in their exercise of the supreme 
 right of suffrage. Cut-throat met cut-throat under the au- 
 thority, with the sanction and by appointment of the execu- 
 tive officers of the State and Federal Government. Whether 
 any improvement in this condition of things has been effected 
 I must leave you to judge, and merely refer to a public trial 
 for homicide which took place after our lecent election, in 
 which one gentleman holding office under our municipal 
 government and another who formerly held one of the chief 
 public offices of trust and honor, figured as the principal 
 personages. 
 
 There is probably no community in the world in which 
 the lawless class wields such a powerful influence as in this 
 city. Legal and municipal authorities fear them, because 
 the Warwicks who in the political caucus make and unmake 
 the rulers of the people, are their friends and protectors. 
 Hence we see the places where the most noted desperadoes 
 congregate left severely alone, the houses which are known 
 
446 MORAL RESPONSIBILITY. 
 
 as so many spider-webs, in which the unweary are caught, 
 despoiled, robbed, and often murdered, tolerated and acqui- 
 esced in. Police captains, who ought to be conversant with 
 every nook and corner of their precincts where crime is 
 hatched and the public health endangered by the basest 
 prostitution, pretend guileless ignorance, and even defy 
 their superiors to extract from them more information than 
 they desire to give. 
 
 What hopes have we, then, of reforming criminals if we 
 leave untouched the nursery which breeds the criminals ? 
 And worst of all, criminals bred in that nursery, educated 
 to the profession, as it were, cannot be reformed. Their 
 sense of moral conception has been so warped, yea, obliter- 
 ated, that all hope must be relinquished of kindling in their 
 breasts the divine spark of humanity. Can you expect of 
 achieving a better success in the future if you leave thou- 
 sands of children to grow up in that poisoned atmosphere, 
 pollution and dissipation practiced daily before their eyes, 
 every spark of innate moral conception crushed out, initiated 
 with the first dawn of intellect into the practices of crime 
 and prostitution? The germ of unlawful desires inoculated 
 into their blood by brutalized parents, bred and educated — 
 if we may apply the word education in this sense — in the 
 atmosphere in which they live, what right have you to ex- 
 pect any other fruit than one of the foulest corruption ? 
 
 Can you in justice hold one begotten in iniquity and bred 
 in sin responsible if he follows the bent of his nature, de- 
 prived as he is of every moral support to lean on? And do 
 not forget, in the same geometrical proportion in which 
 the progeny of that unfortunate rn.other on the Hudson river 
 counties, neglected and cast out of society, increased, does 
 the criminal population increase, which you allow to grow 
 up without interference under your own eyes. 
 
 And do we seek to improve the moral condition of those 
 whose misdeeds give you a right to- deprive them of liberty? 
 Are penal establishments of such a character, are they so 
 governed and regulated that we may entertain hopes of 
 their exercising a reformatory influence upon the inmates ? 
 Convicts of various degrees of criminality are thrown 
 
MORAL RESPONSIBILITY. 447 
 
 together, without discrimination, with no regard whatever 
 to their former social condition, their age or condition. The 
 hardened criminal, he who is but released to come back 
 again after a very short time, if the authorities are fortunate 
 enough to obtain a hold of him after the repetiton of a 
 crime, is placed together with the novice, who for the first 
 time is made aware of the fearful responsibility entailed by 
 a life of criminality. Whatever remnant of self-respect 
 might still be latent in the breast of the young criminal, 
 is wiped out by being brought in contact with those 
 who have forgotten long ago what shame means. 
 Manliness and self-respect is crushed out of him 
 with the irresistible force of contagion. The accidental 
 transgressor of human or Divine law, who may have 
 yielded to temptation or seduction, but who with proper 
 treatment might be redeemed from a life-long career 
 of degradation, is transformed into a conscious, self-willed 
 criminal, his mind is corrupted and poisoned. Instead of 
 reforming him, according to the intention of the law, we 
 create a dangerous enemy of society. There are no induce- 
 ments held out in our prison system which would act as 
 stimulus to the latent moral sentiment ; not redemption is 
 achieved but degradation. Nor is the manner in which the 
 convicts are employed in our penitentaries such as would 
 teach the sweets of labor and usefulness of a life of industry, 
 to those who have been brought into their present condition 
 by the fear of labor. The employment given to our con- 
 victs in the penitentiary is more of a character to fill out the 
 time of the convict in a degrading and self-debasing way, 
 than of inuring them to a regulated life of useful industry, 
 and to this labor all are"held alike. Will the convict have 
 learned to procure the means of life by the honest pursuit 
 of industry when he leaves the so-called reformatory insti- 
 tution? Cast out by society, shunned by honest people, with 
 the mark of Cain upon his brow, he enters life again, and 
 knows as little as he did before to procure the necessary 
 subsistence for himself l and his family, which in many cases 
 are waiting for his support. Is it altogether his fault — it is 
 his fault solely — if he leaves the institution to become only 
 
44& MORAL RESPONSIBILITY. 
 
 more reckless than he was before ? And does society share 
 no responsibility in the life of that man ? Why do we not 
 reform a system which experience has shown to be deficient? 
 Our system of criminal jurisprudence in the treatment of 
 mild offenses is no less at fault. Let me call attention but 
 to one class of offenders who come within the jurisdiction 
 of the law officers. I refer to those who are consigned to 
 prison for intoxication. This offense against the public 
 peace can be of but twofold character. It is either the result 
 of a casual, accidental debauch, into which the unfortunate 
 victim has been inveighled by indiscreet associates, or it is 
 one of habit, and deemed by some incurable. If the offense 
 is one of accidental excess, the authorities should deal with 
 it only so far as detain the offender until the effect of in- 
 toxication has passed. If, on the other hand, the passion for 
 drink has grown into a malady, it should be dealt with in 
 the same way as those are dealt with from mental disease. ■ 
 If the family of the offender is unable or unwilling to assume 
 the responsibility of confining the individual until a cure is ; 
 effected, the community should take charge of him and con-' 
 fine him until he or she is capable of self-control. If we 
 pursue the statistics of crime, we will find the appalling fact 
 that of the large number of persons sent to the workhouse 
 for intoxication, more than half are women ; of those the 
 larger part are mothers, and the largest part of those are 
 sent again and again to the correctionary institutions for the 
 same offense. Some of them, have returned to the workhouse 
 again and again. Think of it ! What responsibility 
 society incurs in allowing these abandoned creatures to re- 
 turn to their old haunts unreformed, inflicted with the same 
 disease, and not unlikely to become mothers of a criminal 
 population like the one alluded to before. The habitual 
 drunkard — especially if he is of vicious inclination — is a 
 constant danger to society. It is but two well known that a 
 large portion of the crime committed in this country is done 
 by persons under the influence of alcoholic poison. Would 
 it not be well, therefore, to construct better safeguards 
 against the depredations of habitual brutal intoxication, and 
 thus prevent the commission of crime rather than punish it 
 
MORAL RESPONSIBILITY. 449 
 
 after the injuries, which in most cases are irreparable, have 
 been inflicted? 
 
 The treatment of youthful offenders is not more judicious 
 than that of older sinners. 
 
 A visit to the City Prison will convince the most casual 
 observer that the incarceration, or even detention of boys 
 under the same roof with persons charged with heinous 
 crimes is not the best way to instill self-respect into the 
 breasts of children, and if anything will poison their minds 
 where only youthful extravagence had been the cause of a 
 slight offense. 
 
 I repeat again that my object this evening was but to call 
 the attention of this society to the unsatisfactory condition 
 of our public system of treating crime and criminals. I hold 
 that this society if it can not take the initia ive in the re- 
 form measures, because other societies like the Prison Re- 
 form Association has for years labors d in this field, with 
 commendable zeal and not indifferent success, it can take an 
 derive and prominent share in these labors. In my humble 
 opinion the objects of this society are not attained by merely 
 listening to able disquisitions but taking actively in hand 
 some of the work which must needs be done and which 
 would most appropriately come within its sphere to do. I 
 remember that a paper on poison read by one of your promi- 
 nent members, concluded with the suggestion of having a 
 committee appointed with the view of effecting_ a reform, 
 deemed necessary and beneficial, and if I am not mistaken 
 our lawgivers recognized the reasonableness of the charge 
 and complied with the demand. Might it not be well to 
 have a committee appointed out of your body, consisting in 
 part of gentlemen of the medical profession, in part of the 
 legal profession, to take in consideration the condition of 
 our system of public corrections? 
 
 On motion of Dr. Wells a committee of five was appointed, 
 consisting of Mr. Ellinger, Dr. W. A. Hammond, Mr. Jacob 
 F. Miller, Dr. R. L. Parsons and Mr. Simon Sterne, to ex- 
 amine into the system of public correction as suggested by 
 
 the author of the paper. 
 
 "The paper was discussed by Mr. J. F. Miller, Dr. A. N. 
 Bell, Mr. Clark Bell, and others. 
 
The Sanitary Interests of the Public 
 Schools of New York. 
 
 FINAL REPORT OF SPECIAL COMMITTEE ON LEGISLATION.* 
 
 At the stated meeting, held June, 1877, it was announced 
 that the Committee on School Hygiene would present to 
 the Society, as soon as practicable after the vacation, a 
 synopsfs of its labors since its appointment. 
 
 It might be well to refer here to an incident, trivial in 
 itself, yet of interest, since it was the beginning of the 
 effort of this Society to ameliorate the condition of school 
 children, and thereby promote the interests and health of 
 the entire community. 
 
 At the meeting in February, 1876, Mr. George H. Yeaman 
 read a paper entitled " State Medical Polity," which was 
 followed by discussion, during which a member conversant 
 with sanitary affairs in relation to schools made some re- 
 marks, which were published in full in the New York Sun of 
 February 27th, 1877. 
 
 That enterprising journal sent a representative to the 
 Board of Education, to investigate the subject, which elicited 
 the following information : 
 
 When the attention of President Wood, of the Board of 
 Education, was called to the report printed in the Sun of 
 Sunday, in which was set forth the dangers to which school 
 children are exposed through the insufficient ventilation 
 and capacity of the school buildings, he said that what was 
 therein stated was correct. " We are raising children to 
 kill them. As long as the law permits children of four 
 
 * Made to the New York Medico-Legal Society, October 3d, 1877. 
 
PUBLIC SCHOOLS OF NEW YORK. 
 
 45 I 
 
 years of age to attend school, the primary schools will re- 
 main overcrowded, and will continue to be merely nurseries, 
 as they are to-day." 
 
 At the meeting of this Society in March, the following 
 Committee was appoiuted : George H Yeaman, A. N. Bell, 
 M. D., R. J. O'Sullivan, M. D., R. S. Guernsey and D. S. 
 Riddle. At the April meeting a report was made, in which 
 it was stated that a communication had been sent to the 
 President of the Board of Education, which was printed in 
 full in the minutes of the Board, and subsequently in the 
 transactions of the Society. 
 
 The Committee was continued, by unanimous vote of the 
 Society, and made frequent reports of progress until the 
 meeting in October, when the second report was read. This 
 report was published in full in the Herald ; and the wide 
 circulation thus given it elicited much public interest in the 
 topics discussed. 
 
 On January 3d, 1877, a public meeting was held, under 
 the auspices of the Society, at which some interesting re- 
 ports and papers were read and discussed, which were 
 afterwards published in full in the proceedings of the 
 Society. 
 
 At the subsequent meetings, reports of progress were 
 made, which were duly acted upon. 
 
 From the reports made at a meeting of the Board of 
 Education at the beginning of the school term, the fact was 
 ascertained that in one ward alone over 1,200 children were 
 refused admission to the schools for lack of accommodation. 
 In the fourth school district last year a large number of 
 children were refused admission for a similar reason. 
 
 Thus many thousand children were unable to receive the 
 benefits of a free education, owing to the fact of there being 
 no school-room for them. These facts deserve careful study 
 by the public, especially by those who desire to secure to 
 their offspring the advantages of public education. 
 
 Upwards of $3,500,000 were expended last year for school 
 purposes. Among the items, according to the estimate for 
 1878, the following appear: Salaries of professors, teachers, 
 etc., Normal College, $90,000 ; for nautical schools, $35,000 ; 
 
45 2 PUBLIC SCHOOLS OF NEW YORK. 
 
 enforcement of Compulsory Act, $20,000, and we may add 
 $150,000 for the College of the City of New York. 
 
 These items are mentioned in order to show that these 
 departments (which do not necessarily enter into the plan 
 of the Common School system) involve annually a large ex- 
 penditure, which might better be devoted to the more press- 
 ing needs of the system — namely, the erection of plain, 
 substantial primary schools, with proper sanitary appliances 
 for the protection of the pupils. Large play-grounds should, 
 as far as practicable, be provided, and in improving present 
 school houses, or in building new ones, they should be sur- 
 rounded on all sides with adequate open space to secure 
 light, ventilation and play-grounds. These extra expendit- 
 ures would go far to supply the school-room now absolutely 
 needed for elementary education. 
 
 In the reports on diseases of the eye in schools, read be- 
 fore the Society, some of the results of this system of higher 
 education were shown, viz.: Cramming, ill-ventilation, and 
 overstrain of the visual organs. One item will suffice to 
 illustrate this point. The College of the City of New York, 
 which is the head of the male departments of the common 
 schools, as the Normal College is of the female departments, 
 may be considered an example of the startling results of 
 their unsanitary condition. In the New York College, 21.9 
 per cent, in the introductory classes were near-sighted ; of 
 Freshmen, 26.2 per cent, were near-sighted ; Sophomores, 
 22.7 per cent.; and of Juniors examined, 50 per cent were 
 near-sighted. 
 
 In the Normal College, examination reveals the following 
 facts : 26.67 P er cent, were near-sighted ; 11.04 per cent, far- 
 sighted ; while 62.29 P er cent. Were in a normal condition. 
 
 An interesting fact was brought out in this examination : 
 that, dividing all the scholars into the three great classes, 
 American, German and Irish, there were found of the Irish 
 14.28 per cent, near-sighted ; American, 19.35 per cent., and 
 Germans 23.23 per cent, near-sighted ; other nationalities 
 gave 19.58 per cent. In other words, we have the Germans 
 presenting the largest percentage of near-sight, Americans 
 next, and Irish least of any. 
 
PUBLIC SCHOOLS OF NEW YORK. 
 
 453 
 
 The inference is plain that the results expected from these 
 institutions are marred, and that the impaired vision of the 
 candidates for the position of tencher, and the young men 
 who graduate from the New York College, must necessarily 
 tend gravely to impair their future usefulness, if it does 
 not eventually end in loss of sight. 
 
 On a former occasion we referred to the compulsory law 
 in these words : 
 
 " It is to the primary departments and schools that these 
 children are compelled to go, according to the law, regard- 
 less of sanitary requirements or class-room accommodation, 
 and failing to do so, must go to prison." 
 
 The injustice of enforcing the law, under these conditions, 
 must be obvious to any reflecting mind ; indeed, it may be 
 ■doubted if the higher courts of justice would willingly en- 
 force a penal law at the risk cf the health or the lives of 
 those who cannot obey because room is not provided for 
 them. As an illustration of this, there were at the begin- 
 niug of the vacation of 1876 forty of these unfortunate 
 youths in prison. 
 
 The Medico- Legal Society, in advocating the sanitary re- 
 form of schools, rendered an important service in directing 
 public attention to this subject. 
 
 The results already accomplished are evinced in the in- 
 terest manifested by the public in their sanitary manage- 
 ment. The Society, in entering on this branch of State 
 Medicine, opens a wide field for its labors, which cannot 
 fail to redound to its credit, and to the advancement of the 
 objects of its organization. The immediate purpose of the 
 Society, in endeavoring to promote this reform, cannot be 
 better expressed than it has been in the concise and excel- 
 lent language of the President, Dr. Hamilton, in the open- 
 ing of the discussion, at the public meeting, January 3d, 
 1877, an abstract of which we subjoin. 
 
 He introduced the subject by remarking that a few words 
 seemed to be necessary, by way of explanation, to those 
 gentlemen, no members of the Society, who were present- 
 "The subject of the sanitary condition of the schools of this 
 city came before us as one of the matters properly included 
 
454 PUBLIC SCHOOLS OF NEW YORK, 
 
 in the term ' State Medicine/ And whilst we have, in. the 
 main, restricted our studies and debates to questions of 
 medico-legal science, we have always held that it was within 
 the purpose of our organization to consider any question of 
 importance appertaining to State Medicine, of which medico- 
 legal science is, strictly speaking, on a branch. In addition 
 to this, we have the common right of citizens to inquire into 
 all matters which affect the public interest. 
 
 "Our action cannot, therefore, be regarded as an officious 
 interference with the duties of the Board of Health, or the 
 Board of Education, or of any other of the State or muni- 
 cipal authorities. We claim the right to examine and to 
 suggest modifications of the laws, or improvement in the 
 management under the laws, in all things relating to the 
 hygiene of our schools, whenever and wherever such modifi- 
 cations or reforms seems to be required. 
 
 "We have entered upon the consideration of this subject 
 with no predetermination to find causes of complaint, but 
 only to be assured that, while the State does its duty in se- 
 curing education for all classes, it does not impair the health 
 or destroy the lives of these precious children, upon whom 
 the happiness of families and the prosperity of the city de- 
 pends, nor that the schools should become centres of infec- 
 tion, from which disease may be spread throughout the land. 
 
 "I believe, gentlemen, I may be permitted to say that, 
 thus far, our investigations into the condition of our schools 
 in this city have in no degree humbled our pride or abated 
 our Pharisaical pretensions. Nevertheless, we have defects — 
 weak points in the masonry, want of cohesion in the iron, 
 lack of strength in the trestle-work, which the architect 
 and engineer, who crossed the bridge an hour before us, 
 failed to see. We, the medical half of our Society, claim to 
 be experts in matters of hygiene, and that we can see some 
 things that others cannot. We believe we see defects, some 
 of which are trivial, and might easily be remedied ; others 
 more serious, and apparently more difficult to remedy, at 
 least without additional legislation. It is apparent, for ex- 
 ample, that under the present law, rendering attendance at 
 school obligatory, and which law most good citizens desire 
 
PUBLIC SCHOOLS OF NEW YORK. 455 
 
 to see, in one way or another, enforced, the crowd and strain 
 upon the schools is excessive, and either the pressure must 
 be relieved or the whole structure must give way." 
 
 In February, 1877, two bills were introduced in the Legis- 
 lature ; one in the Senate, by the Hon. James W. Gerard, 
 providing for the appointment of an Assistant Superintend- 
 ent of Schools for medical supervision in the city, which 
 was modified to the appointment of an Assistant Sanitary 
 Inspector for each school district, to be made by the Board 
 of Health. In this form it unanimously passed the Senate. 
 
 The Hon. Elliot C. Cowdin, in the Assembly, introduced 
 the bill fixing the minimum age of admission to the public 
 schools at six years, and limiting the attendance to one 
 session a day of children under eight years of age. The 
 advantages to be derived from the last-named bill have been 
 fully demonstrated in our second report, and also in our 
 subsequent report at the June meeting, from which we quote 
 a brief abstract. 
 
 " Of children under the age of six years, there are now 
 upwards of 17,000 attending the lower grades in our public 
 schools, who could not fail to be greatly benefited by the 
 enactment of such a law, as will be seen for the following 
 reasons : 
 
 " The children return to school in the afternoon, after 
 partaking of a hearty dinner, often fatigued by play, and, 
 during the warm months, overheated, so that the afternoon 
 session is a tax on the vitality of both teachers and scholars, 
 without any corresponding mental benefit. 
 
 "Those interested in the health of school children may 
 satify themselves as to the correctness of these statements, 
 by observing the little ones on these sweltering cays, re- 
 turning to school after the noon recess, exposed to the 
 burning rays of the mid-day sun ; whilst in the school, to be 
 cooped up in crowded rooms during the entire afternoon, 
 without any recess, in constrained positions, being crammed 
 for the annual examination, tortured by drill exercises for 
 exhibitions (the usual programme at the close of the school 
 year), in order to gratify the vanity of school officers, who 
 seem determined to run these schools regardless of the 
 
45 6 PUBLIC SCHOOLS OF NEW YORK.. 
 
 physical well-being of the pupils and the requirement of 
 sanitary laws." 
 
 In this connection there is one point of interest to which 
 we called attention in our first report, April 5th, 1876 : 
 
 " Not only are the children subjected to the tortures and 
 annoyances already mentioned, of over crowded and ill- 
 ventilated classrooms, etc., but frequently, before school is- 
 dismissed, the Janitor and his assistants begin their work 
 of sweeping and cleaning, raising clouds of dust. As soon 
 as this work is finished, and after the dismissal of school, 
 the doors and windows are closed immediately, thereby pre- 
 venting proper ventilation. Thus the children are com- 
 pelled to re-breathe this poisoned atmosphere on their re- 
 turn to school the next day." 
 
 Previous, however, to the introduction of the bills already 
 referred to, the Committee had, by appointment, an inter- 
 view with the President of the Board of Education, and snb- 
 mittted to him a draft of the bills. After a careful examina- 
 tion he cordially approved of them, and assigned cogent 
 reasons for their passage. 
 
 Subsequently we were not a little surprised to learn 
 through the press that the Board of Education had pro- 
 testeted iigainst their passage, which protest was appropri- 
 ately replied to from the Senate Chamber by Senator Gerard, 
 who stated in a communication to the Board of Education 
 that there was a very general interest manifested by the 
 public in this subject. The district School Inspectors were 
 not qualified to perform sanitary inspection ; that their sug- 
 gestions made in their annual reports received no attention ; 
 they were simply placed on file, and that was the last ever 
 heard of them. He (the Senator) would rather hear their 
 reasons than their protests. 
 
 Notwithstanding this action of the Board of Education, 
 at their meeting in June last, a resolution was passed ask- 
 ing the Board of Health to inspect the schools, and report 
 to the Board of Education. 
 
 In February, according to the Board of Education, there 
 was no necessity for sanitary inspection of schools, and in 
 June they invite the Health Board to make this inspection. 
 
PUBLIC SCHOOLS OF NEW YORK. 457 
 
 We have been credibly informed that some of these 
 officials were never seen in the ground class-rooms of the 
 primary departments in the more densely populated school 
 districts during their term of office. 
 
 If this statement be correct, how could intelligent legis- 
 lation be expected, under these circumstances, in relation 
 to the sanitary interests of the schools? 
 
 In the year 1873, the Board of Apportionment, at the in- 
 stance of Comptroller Green, made an appropriation of 
 $5,000, which amount was to be expended in sanitary im- 
 provements ; but it was subsequently withdrawn, owing to 
 the failure of an agreement by the Committee on Warming 
 and Ventilation of the Board of Education, in awarding a 
 contract for the performance of the work. 
 
 Prior to this action, a conjoint inspection of all the schools 
 under the jurisdiction of the Department of Public Instruc- 
 tion was made by the physician of the department, and two 
 Inspectors of the Board of Health. 
 
 These reports were undes the consideration of the Com- 
 mittee on Hygiene, when the department was abolished by 
 an Act of the Legislature, and since that time the reports 
 have remained pigeon-holed, the present Board of Educa- 
 tion taking no action upon them. 
 
 Thus, for four years, these schools have been deprived of 
 sanitary inspection. The Board of Health has been cen- 
 sured for not making the inspection, and insisting on the 
 sanitary improvement of the schools. 
 
 The probable explanation of this inaction is, that the 
 Health Board deem it the duty and sphere of the School 
 Board, and left the responsibility where it very properly be- 
 longed. 
 
 In this connection a recent issue of the Medical Record has 
 the following pertinent remarks : 
 
 "The Board of Health, in compliance with a resolution 
 from the Board of Education, has made a sanitary inspec- 
 tion of the school buildings of this city during the vacation. 
 As a result, sixteen of these have been found wanting in 
 sanitary requirements, and have been referred back to the 
 Educational Board for action. We cannot resist the con- 
 
45^ PUBLIC SCHOOLS OF NEW YORK. 
 
 viction that this will probably be the end of the matter. It 
 is well known that the Board of Education has been adverse 
 to sanitary inspection in every form, and has, during all the 
 time the matter has been under discussion, defiantly main- 
 tained that it was capable of looking after its own affairs, of 
 which it claimed this sanitary inspection was one. This is 
 past history. What the future will be, is of course purely 
 inferential, but we believe there is very little chance for re- 
 form. The resolution asking for sanitary inspection was 
 ostensibly a bid for public favor and as an offset to the de- 
 feat of the Sanitary School bill, v/hich was thought to be a 
 reasonable measure by every one else, save those composing 
 the Board of Education. The Health Bureau is merely 
 asked for recommendations, and when these are made, they 
 can be accepted merely in the light of official courtesy, and 
 filed accordingly. Beyond this nothing can be done save by 
 the pleasure of the Educational Board, as that body alone 
 has the power to enforce any regulations, either for the 
 mental or physical well-being of the children. Judging the 
 future by the past, the outlook is discouraging. What is the 
 use of making recommendations without the power of en- 
 forcing them ?" 
 
 It is plain from these facts that but little can be expected 
 fiom the action of the Board of Education with regard to 
 the sanitary interests of the schools, and that the legislation 
 which has emanated from this Society is the only feasible 
 means of solving this difficult problem. 
 
 Probably in no city in the civilized world, more paiticu- 
 laily in popular centres, has the medical profession less 
 influence than in the city of New York ; especially is this 
 noticeable in the spheres in which their studies and experi- 
 ence naturally incline medical men to take an active part in 
 matters pertaining to public health. An instance will suffice 
 tu explain our meaning. In the fall of 1875 an application 
 was made to the then incumbent of the Mayoralty, by some 
 of the most eminent medical men of the city, to appoint, as 
 a member of the Board of Education, a physician whose ex- 
 perience in school sanitation would, in their judgment, con- 
 serve the sanitary interests of the schools 
 
PUBLIC SCHOOLS OF NEW YORK. 459 
 
 This reasonable request was denied. The profession con- 
 tinues unrepresented in the Board of Education ; this is an 
 injustice. The claim of the medical profession is as good 
 and, in some respects better, than that of some other inter 
 ests and professions now represented in the Board. Lawyers, 
 bankers and politicians are there, but no physicians; the 
 physical wants of 100,000 children lequire the services of 
 a trained sanitarian in the central Board of Education, who 
 would aid materially in the enforcement of sanitary law, and 
 would not fail to prove a useful member. 
 
 Mayor Schroeder, of Brooklyn, recognized this fact in ap- 
 pointing our colleague, Dr. Bell, as a member of the Board 
 of Education of that city 
 
 It is hoped that the present worth)' Mayor will recognize 
 the claim of the medical profession to a representation in 
 the Board of Education of New York. 
 
 In conclusion, we would earnestly solicit the co-operation 
 of our colleagues on the law side of the house, to aid in ob- 
 taining this recognition, and the legislation referred to in 
 this report. 
 
 R. J. O'Sullivan, M.D., 
 George H. Yeaman, 
 R. S. Guernsey, 
 D. S. Riddle, 
 A. N. Bell, M.D. 
 New York, October $d, 1877. 
 
The Medico- Legal Society. 
 
 Retiring Address by President F. H. HAMILTON, M.D., LL.D.* 
 
 Gemtlf.men: Permit me to mention briefly the leading 
 topics which have engaged the attention of this Society 
 during the year just ended : 
 
 The first meeting, in November, 1876, was occupied by the 
 reading of the President's Inaugural Address. 
 
 In December, George M. Beard, M.D., active member, 
 read a paper on "Trance, or Somnambulism in its Medico- 
 Legal Relations," which was unfortunately not published in 
 our regular organ, The Sanitarian, and Organ of the 
 Medico-Legal Society, but which appeared in full in the 
 January number of the Journal of Nervous and Mental Dis- 
 eases, Chicago, Illinois. 
 
 January 3^ 1877. — A large audience of members and 
 citizens listened to a paper on "Personal Identity," by J- 
 Appleton Morgan, active member, attorney at law and coun- 
 selor, published in the "organ" of the Society, for January, 
 1877. At the same meeting, after a brief statement by the 
 Chair, of which the Society had undertaken to do in the 
 matter of- school hygiene, a report was made by the com- 
 mittee on the subject. A paper was also read by Professor 
 C. R. Agnew, M. D., by invitation, on the "Defects of Vision 
 caused by Study, and by the bad Arrangement of Light in 
 the School-Houses." The report of the committee, and Dr. 
 Agnevv's paper, are published in the "organ" for March, 
 1877. A lengthy discussion ensued, in which Mr. James 
 Appleton Morgan considered, especially, the subject of 
 Compulsory Education ; Mr. Wm. A. Owen, Principal of the 
 Eighty-seventh Street District School, the Condition of the 
 
 * Pronounced at Annual Meeting, November 7, 1877. 
 
THE MEDICO-LEGAL SOCIETY. 4 6 1 
 
 Schools, and the need of a Competent Medical Inspector, 
 etc., etc.; Robert R. Mcllvane, M. D., the Proportion of 
 Blind to the Population, etc.; Moreau Morris, M. D., the 
 Duty of the Health Department in reference to School 
 Hygiene. Full minutes of this discussion will be found in 
 the "organ" for April, 1877. 
 
 February 7th, 1877. — Dr. Alfred M. Carroll, active member, 
 read a paper on the " Plea of Insanity," published in the 
 "organ" for June. After which a paper on "Defective 
 Vision in School Children," was read by the Secretary, con- 
 tributed by invitation by Dr. Edward G. Loring, of this city- 
 published in the "organ " for May, 1877, with the discussion 
 which ensued, conducted chiefly by Jacob F. Miller, Esq., 
 and Dr. R. J. O'Sullivan. 
 
 March jth — Dr. Samuel A. Raborg, active member, read a 
 paper entitled " Is the Connection of Charity with Correc- 
 tion, in the City of New York, useful ? What should be the 
 Policy of a Great City toward its Poor?" Discussed and 
 published in the "organ" for July, 1877, with the debate ; 
 conducted chiefly by Simeon Sterne, late Com. P. C, etc., Dr. 
 Mcllvane, Hon. Frank Sherman Smith, Judge Fithian and 
 Dr. Raborg. At this same meeting the Permanent- Com- 
 mission reported, through Mr. Yeaman, their reply to the 
 inquiries made by the Philadelphia Obstetrical Society, 
 relative to the laws of this State regulating the conduct of 
 medical witnesses in confidential cases, and to the experience 
 and opinions of the Society as to its practical working and 
 value. The report was accepted and approved. 
 
 April a,th. — The Society listened to a paper, by Jacob F. 
 Miller, Esq., active member, on " Medical Experts." No 
 copy of this paper, nor of the discussion which ensued, has 
 yet been furnished for publication. It is too valuable to be 
 lost, and it is hoped that a copy will soon be furnished. 
 
 May 2d. — Dr. W. G. Stevenson, of Poughkeepsie, read, by 
 invitation, a paper entitled " Criminality," which, having 
 been discussed, was published in the " organ " for August 
 and September. 
 
 June 6th. — Dr. Isaac Ray, of Philadelphia, the distinguished 
 author of "Mental Pathology," "Mental Hygiene," etc., 
 
462 ' THE MEDICO-LEGAL SOCIETY. 
 
 etc., honorary member of the Society, read, by invitation, a 
 paper on "Testamentary Capacity." Published in the 
 "organ" for October, 1877. 
 
 September $th.- — Dr. Tomas C. Finnell, active member, ad- 
 dressed the Society on the "Legal Responsibilities of those 
 who administer Anaesthetics." A lengthy discussion ensued. 
 The address and debate are still to be published. 
 
 The October meeting being for the annual election of 
 officers, and for the auditing the reports of the officers, no 
 paper was read. At the close of the regular business of the 
 evening, however, on motion of Dr. J. F. Dunphy, the Chair 
 was directed to appoint a committee of five, three of whom 
 should be lawyers and two physicians, to report to the 
 Society whether any farther legislation was required to pre- 
 vent criminal abortions. 
 
 The Chair appointed Drs. John F. Dunphy, James O'Dea, 
 Jacob F. Miller, Freeman J. Fithian and Wm. G. Davies. 
 
 At the same meeting, also, the Committee on the Hygiene 
 of the Schools, made, through, Dr. O'Sullivan, a supple- 
 mentary report, which was accepted and approved, and the 
 committee continued. 
 
 It will be observed that, under our By-Laws, there are 
 only eight evenings in the year devoted to the reading of 
 regular papers and discussions thereon. Of these papers, 
 the active members of the Society have contributed six, two 
 of which were contributed by the lawyers and four by the 
 physicians. The two remaining evenings were occupied by 
 distinguished medical gentlemen from abroad (one of whom, 
 Dr. Ray, was an honorary member), both of which papers 
 related exclusively to medico-legal science. There have 
 been presented also, and read, two carefully prepared and 
 elaborate papers on State Medicine, not strictly medico- 
 legal, contributed, on invitation, by medical gentlemen who 
 are not members of the Society, but who are regarded as 
 experts on the subjects upon which they wrote, and whose 
 opinions were thought desirable in connection with the sub- 
 ject of School Hygiene. 
 
 All of these papers have been or will be published in our 
 regular organ, except one, as has been already stated, and 
 
THE MEDICO-LEGAL SOCIETY. 463 
 
 will constitute, I am constrained to say, valuable matter for 
 reference to the future student of medico-legal science and 
 public hygiene. 
 
 The report of the Treasurer shows that, notwithstanding 
 the smallness of the initiation and annual dues and the ad- 
 ditional expense incurred for the better accommodation for 
 the meetings of the Society, for the library, including room, 
 rent, the purchase of books, insurance, and a very small 
 salary to the Secretary, the amount of money ndw in the 
 treasury is larger than is usual at the close of the year. 
 Some portion of the fund, set aside last year for the increase 
 of the library, has not yet been expended, on account of the 
 difficulty of finding those books for which the Society most 
 stands in need. 
 
 During the year the trustees have formally .taken posses- 
 sion of all the property which could be found, and which, 
 for the want of a home, was much scattered ; and having 
 secured a proper insurance, we may feel confident that none 
 of our future accumulations will be lost — certainly not while 
 the present efficient board of trustees remain in office. 
 
 I think it my duty to explain why so much of the time of 
 the Society, both at the regular meetings and in the com- 
 mittees, has been occupied with the subject of School Hy- 
 giene — a subject which does not come wholly within the 
 original purpose of our organization — and in an attempt to 
 procure metropolitan and legislative action, with a view to 
 its improvement. 
 
 It is now more than a year since this subject was brought 
 to our attention by a member of the Society, and a former 
 school inspector, Dr. R. J. O'Sullivan. 
 
 And, since then, as a result of our own inspections, and 
 Ihrough various communications from those who are inter- 
 ested and possess knowledge upon the subject, our informa- 
 tion has accumulated, and the cor.viction has forced itself 
 upon us, that the condition of our schools is, in certain re- 
 spects, bad — very bad — and that some remedy ought to be 
 speedily applied. 
 
 The evils which we have observed are, briefly : over- 
 crowding, especially in the primary departments; imperfect 
 
464 THE MEDICO-LEGAL SOCIETY. 
 
 ventilation ; bad arrangement of the light ; faulty construc- 
 tion and dangerous proximity of the water-closets ; too long 
 confinement in the school-rooms; admission of thousands of 
 children at an age when they ought to be in the nursery or 
 at play, namely, between the ages of four and six years 
 (there are 17,000 children under six years in our school- 
 houses); insufficient and unsuitable play-grounds ; the con- 
 struction of large and expensive buildings on small lots, so 
 that little or no space is left on either side for the admission 
 of light and air. 
 
 1 Most of these evils are remediable at once, under proper 
 laws and intelligent administration ; while some of them can 
 only be remedied as new buildings are constructed and the 
 aid ones are abandoned. 
 
 We are informed that the Board of Education has hitherto 
 paid no attention to the repeated complaints sent to it by 
 the Board of Health ; but that the reports of the Medical 
 Inspectors, who have been from time to time detailed for 
 this special purpose by the Board of Health, have been 
 passed unnoticed; at least, they have provoked neither re- 
 ply nor action. The evils complained of are not remedied — 
 nor does the Board of Health attempt to enforce action by 
 the exercise of its own legitimate authority. 
 
 We have reason to believe tHat our own respectful com- 
 plaints and suggestions have been treated in the same 
 manner. In short, we are made to understand that the 
 Board of Education does not recognize the existence of but 
 few, if any, of the evils to which I have referred. If such is 
 the fact, then I think the members of this Society, and prob- 
 ably all who have made themselves acquainted with the 
 hygienic condition of our common schools, will say that the 
 Board of Education, as at present constituted, is either in- 
 competent to judge of what are proper sanitary conditions ; 
 or has taken no pains to learn the facts ; or is criminally 
 negligent in giving information to the public, and in asking 
 for help to enable it to correct the evils. In either case, 
 with all respect for the gentlemen composing that Board, 
 they are not the proper men for the responsible trust im- 
 posed upon them. Nor is it certain that the Board of Health 
 
THE MEDICO-LEGAL SOCIETY. 465 
 
 has done all it might do in this matter, to relieve itself of 
 the same imputation. 
 
 The insalubrity of school houses — we beg to remind the 
 Board of Education — may not be recognized by persons in- 
 experienced in these matters, whatever intelligence they 
 may possess in other matters, and who merely pass through 
 the rooms in a "tour of inspection;" but the most inex- 
 perienced, even children under six years, will recognize 
 their own discomfort, and the cause of it, if shut up many 
 hours in hot and unventilated rooms— and they will gener- 
 ally contrive, under some pretense or another, to get out 
 into the air. In the same manner, the brakeman or the con- 
 ductor of a railroad-car, who passes in and out every few 
 minutes, never discovers that the air is overheated or im- 
 pure, until his attention is called to it by the suffering pass- 
 engers. The case is very different, however, when an ex- 
 pert, hygienist — and all educated physicians are, or ought 
 to be, experts in this matter— enters a school-house. To 
 him a single inspection furnishes all the evidence required ; 
 and he might equally determine what the sanitary result 
 must necessarily be, from a mere statement of the facts in 
 any given case. 
 
 The medical man alone, also, observes and knows to what 
 extent the various forms of disease to which children ar 
 liable, are referable to school-houses and school hygiene. 
 He does not study these diseases and their causes exclu- 
 sively in the school-room, but in the sick-room also ; where 
 the Board of Education, and the engineer, who is in most 
 cases their only responsible inspector, seldom if ever enter; 
 or if they did, their opinions as to the causes of the mala- 
 dies they were permitted to see, would possess very little 
 value. 
 
 The intelligent medical man even calculates with almost 
 mathematical precision, and prognosticates the future, so far 
 as the bad hygiene of the schools relates to the futuie con- 
 dition of the child. 
 
 As he finds that in the large manufacturing towns of Eng- 
 land, the children prematurely, and for two many hours, 
 confined in factories, grow up into a lace of men and women, 
 
466 THE MEDICO-LEGAL SOCIETY. 
 
 short in stature, crooked, rickety, blear-eyed, physically 
 feeble and intellectually dull ; so, also, he finds, or, if he has 
 not actually found he has a right to infer, that a similar con- 
 finement in over-crowded and badily-venlilated rooms will 
 produce the same results. 
 
 We ask for legislation to prevent the admission of chil- 
 dren under six years of age. 
 
 It may be proper that the city should provide "nurseries" 
 for children ; but it would be easy to show that our school- 
 houses are neither adequate nor suitable for such purposes. 
 
 We ask, also, that in the Board of Education, composed of 
 twenty-one members, there shall be at least one medical 
 man, appointed with especial view to his competency. 
 There ought to be two ; so that there may be a healthy 
 attrition of opinions, and that there maybe also the strength 
 of union, when their opinions concur. One of the qualities 
 essential to the "competency" of such appointee is an 
 ability to stand upright under pressure — back-bone — a qual- 
 ity which is useful everywhere in life, perhaps, but which 
 becomes indispensable when, as in this case, the odds would 
 be greatly against us. I am informed that there are in the 
 Board of Education six lawyers. The members are, there- 
 fore, probably well instructed as to their rights. We pro- 
 pose, on our part, to teach them some of their duties. 
 
 There ought to be, also, one Medical Inspector, independ- 
 ent of the Board of Education, assigned exclusively to the 
 inspection of the public school houses. 
 
 Thus far our efforts to secure proper legislation and to 
 influence municipal action have failed ; but, so far as the 
 Legislature is concerned, at least, we are not without en- 
 couragement. 
 
 I mistake, however, the temper of this Society, and of 
 those who have been most active in the matter, if there is 
 any disposition to relinquish the effort. The interests in- 
 volved are too vast — the interests of more than a hundred 
 thousand children ; the evils are too great, and the en- 
 couragement is too liberal to warrant a suspension of our 
 labors. 
 
 Parents constantly urge us to renewed exertions ; school 
 
THE MEDICO-LEGAL SOCIETY. 467 
 
 teachers receive us with open arms, and beg us not to with- 
 draw our hands ; and the public press, with almost one 
 voice, sustains and encourages us to continue the self- 
 appointed champion and friend of the children. 
 
 We have no interest in the schools which every citizen has 
 not. This large body of lawyers and physicians is not seek- 
 ing to entertain itself and amuse the public by dramatic re- 
 presentations ; we want no places, either of emolument or 
 honor; we have no political ends to subserve ; but we believe 
 we have discovered gre;it defects in our school system, and 
 we are determined that, if possible, they shall be remedied. 
 Let it be fully understood by all who are interested, and 
 especially by those who, in their long personal experience 
 and endurance of the evils, have become weary of waiting, 
 thnt we are in earnest, and that we hope and intend to 
 succeed. 
 
 It only remains for me, gentlemen, to thank you again for 
 the honor you have conferred upon me, by electing me as 
 your presiding officer during two consecutive years, and for 
 the forbearance you have uniformly shown to me while oc- 
 cupying this chair, and to introduce to you my successor, 
 the Hon. George H. Yeaman — a lawyer, eminent in the 
 practice and exposition of law — late a representative in 
 Congress, and Minister to the Court of Sweden — author of 
 a work entiled "The Study of Government," which must be 
 regarded as a monument of industry, learning and classical 
 taste — a careful student of medico-legal science, and an 
 active member of this Society. He is especially fitted for 
 the place to which you have elected him by your unanimous 
 vote. Under his guidance, and with the same kind support 
 extended to him which you have extended to me, we have a 
 right to anticipate a period of continued prosperity and use- 
 fulness. 
 
 Inaugural Address of the President-Elect, 
 Hon. GEORGE H. YEAMAN.* 
 Gentlemen of the Medico-Lecal Society : — 
 
 In accepting the honor you have conferred, and the 
 
 * Pronounced November 7, 1877. 
 
468 THE MEDICO-LEGAL SOCIETY. 
 
 duties you have imposed upon me, by an election to the 
 Presidency of the Medico-Legal Society, I have to observe 
 that this mark of your confidence and esteem appears sill the 
 greater to me because it was expressed at a moment when 
 at least some of you must have known that I was so situated 
 in regard to other duties, and other demands upon my time 
 and care, that I may not be able to give to the labors of the 
 office that degree of diligence and that constancy of atten- 
 tion which their importance would merit, and which my own 
 ardent desire for your success would otherwise cheerfully 
 command at my hands. 
 
 Upon this point I am relieved from any apprehension of 
 feeble executive action, by the character and efficiency of 
 the gentlemen selected as First and Second Vice-Presidents. 
 
 And yet upon whomsoever may fall, from time to time, 
 the discharge of these duties within the next year, the in- 
 cumbent of this chair will suffer by your constant remem- 
 brance of, and comparison with, the conduct of the same 
 office by our distinguished out-going President, who has 
 just taken his official leave of you. 
 
 It would be useless for me, after the review just made by 
 Prof. Hamilton, to attempt any extended summary or an- 
 alysis of our last year's labors, nor will it be expected at my 
 hands. 
 
 But I cannot refrain, in passing, from congratulating you 
 that your labors in behalf of the health of the public schools, 
 and in the manner of testing and preventing the adulteration 
 of milk, as well as guarding the rights and liberties of those 
 who might be convicted and punished upon insufficient tests, 
 have attracted general and deep interest in this city and 
 elsewhere; while the establishment and working of your 
 Permanent Commission has resulted in the rendition of a 
 full and careful report upon advice asked for by an eminent 
 medical society of a neighboring State, in reference to a 
 ■proposed amendment of their own statutory law, to protect) 
 as confidential, communications between patient and phy- 
 sician. 
 
 As to the future of our Society, I hope there is no reason 
 to fear that it will not be as prosperous, as interesting, as 
 
THE MEDICO-LEGAL SOCIETY. 469 
 
 instructive and useful as in the past ; and there ought to be 
 ground to hope that increased experience, a more thorough 
 and effective organization, and a longer and better estab- 
 lished position in the es(eem and confidence of the public, 
 will render your labors and discussions still more uselul and 
 effective. 
 
 The Medico-Legal Society, as its name imports is com- 
 posed mainly of members of the medical and legal profes- 
 sions. It is not a medical society, nor a legal society, nor is 
 it a mere club or social organization. It is strictly a scien- 
 tific body. 
 
 As such, what is its province ? While strictly scientific, 
 its intended field of exploration and discussion does not cm- 
 brace all of science — not even all of medical science, nor all 
 of legal science. The medical side of this house would 
 scarcely open a discussion here to instruct lawyers whether 
 tuberculosis and scrofula are, or are not, the same disease, 
 attacking or developed in different parts of the system ; nor 
 would the legal side of the house deem the time of this 
 Society well spent in arguing to the doctors either that the 
 New Code is or is not a better system of procedure than the 
 one which it supplants. 
 
 Either medical science or legal science is a field of study 
 and investigation, in which we may always learn, always 
 advance, and still the horizon, the boundary of our knowl- 
 edge, recedes from us, and seems wider in proportion as 
 light becomes greater and clearer. 
 
 What is our joint portion of these vast expenses ? It is 
 this. At many points of investigation, of practice and dis- 
 covery, the two professions meet, in so far that light from 
 both is needed for a right solution ; and knowledge of both, 
 within certain defined limits, is needed for a correct and 
 successful solution of the problem. 
 
 It is these points of common ground, common interest, 
 professional contact, over which, in the technical language 
 of my own profession, this Society may be said to "have 
 jurisdiction" — a jurisdiction assumed by us in the interests 
 of science, our judgments being worth just what our facts 
 and reasons are worth. 
 
47° THE MEDICO-LEGAL SOCIETY. 
 
 Hence, one would naturally infer that medical juris- 
 prudence would be the first and most important subject that 
 would ordinarily and most naturally command our attention. 
 And I believe it is historically true that this was the prin- 
 cipal object in view, in the minds of those who organized 
 and called into being this Society, as it was in the field of 
 medical jurisprudence — a discussion and re\ ort upon the 
 tests employed to detect poison in a celebrated criminal 
 trial — that this Society gathered one of its first and brightest 
 laurels. 
 
 And let no one suppose that these points of (ontnct and 
 mutual interests of the two professions, this limited scien- 
 tific jurisdiction, furnish a field for inquiry and discussion 
 too small to be interesting or useful. 
 
 The recorded lists of your scientific papers, and the official 
 reports of your committees, attest the vast range and variety 
 of the subjects which may properly be discussed here. In- 
 sanity, in all its forms, real or theoretical, its relations to 
 legal capacity and legal responsibility, the widest and most 
 varied field of our labors ; toxicology, abortion, infanticide, 
 effects of certain injuries from railroad accidents, adultera- 
 tion of food, especially of milk, the sanitary condition and 
 government of schools, testamentary capacity — a vast field, 
 expert testimony — another vast field, chloroform as an agent 
 to facilitate robbery, statutory protection of communications 
 between physician and patient, heredity of nervous diseases, 
 reviews of celebrated trials, questions in life insurance 
 questions in malpractice, and many other subjectsof absorb- 
 ing and vital interest, constantly elicit, laborious and care- 
 ful discussion at your hands. 
 
 Nor would I hold that our discussions and investigations 
 should be too closely confined to medial jurisprudence, 
 strictly and technically so-called. I would deem them 
 properly confined only within the limits of those questions 
 or points of mutual interest. One of the questions which 
 has been laboriously investigated and fully discussed here, 
 the sanitary — or, if some prefer, the unsanitary — condition 
 and management of the public schools, can scarcely be 
 called a question of medical jurisprudence ; yet it is, or 
 
THE MEDICO-LEGAL SOCIETY. 471 
 
 upon occasion may become a fit subject fur discussion by 
 a Medico- Legal Society. 
 
 Another subject, embracing the first one mentioned, as 
 well as all kindred questions, subjects of vast range and 
 variety, and of vital importance, sometimes collectively ex- 
 pressed by the term " State Medicine," may properly re- 
 ceive a just proportion of your attention, involving, as it 
 does, the question how far, and in what way, can or ought 
 government to interpose for the protection of the health of 
 the citizen. 
 
 If the question be whether better sewerage in the city or 
 better drainage in the country should be established ; or 
 whether an artificial pond or lake, intended to adorn a land- 
 scape, has not become a laboratory of poison that needs to 
 be abated ; or whether blocks and acres of tenement-houses 
 have not been so constructed as to destroy their occupants 
 with typhoid, scarlatina and diphtheria ; or whether a 
 plumber has not so exercised the highest skill of his art in 
 arranging the plumbing of a costly house in the fashionable 
 quarter of the city, as to conduct the most of sewer poison 
 in the most direct way into the sleeping apartments — in all 
 these questions there are always two opinions or judgments 
 needed (aside from questions of engineering skill) first, the 
 medical opinion, whether a nuisance, a danger, an evil does 
 exist, and its precise nature ; next, the legal opinion as to 
 how the remedy may or can be applied ; whether existing 
 laws and regulations are sufficient, if executed ; whether 
 there are any vested rights that cannot be encroached upon, 
 even by additional legislation ; and whether constitutional 
 amendment may be necessary. 
 
 Thus it is that reports from your committees, composed 
 of members from both professions, may be and are made to 
 embrace all the material questions pertaining to a given 
 subject, whether viewed from the medical or legal stand- 
 point. But in enlarging, however little our field of discus- 
 sion beyond subjects appertaining strictly and technically to 
 medical jurisprudence, we should be careful not to go too 
 far, and not, by our discussions here, convert this Societ 
 
47 2 THE MEDICO-LEGAL SOCIETY. 
 
 into a social science association, in which are discussed alJ 
 things affecting man as a social being. 
 
 Behold the beauty and the invigorating effects, mentally 
 and morally, of all such investigations and discussions. 
 Science is knowledge — knowledge can only be perception, 
 discovery, comprehension of truth. All truth is akin, re- 
 lated in some way to every oti.er truth or fact in the uni- 
 verse ; and every fact casts its light upon, or has its rela- 
 tions with, some other fact or class of facts. The test of 
 truth, the tuchsione of scientific reasoning, is the harmony 
 of these relations. 
 
 We must apply this to our labors. Lawyers may demon- 
 strate that government has power to do this or that, and 
 may advocate the measure, but medical men may demon- 
 strate that doing it would be an injury instead of a benefit- 
 So medical men may demonstrate that certain things are 
 extremely pernicious to health, individual or public, and 
 may propose that doing or permitting such things be pre- 
 vented, or even punished ; but the legal profession may 
 interpose the obstacle that, under our form of constitutional 
 government, the evils complained of cannot be reached by 
 law, but only by reason and education, and could not be 
 legally controlled under an}- form of government consist- 
 ently with the preservation of personal liberty. Thus at 
 every step within the field we propose to cultivate, a medico- 
 legal consultation becomes necessary. 
 
 There is something in all this, and in all scientific investi- 
 gations, which not only promotes the discovery of truth, but 
 also nourishes, develops and intensifies the love of truth for 
 its own sake, as does all devotion to science, by its truthful- 
 ness and carefulness of statement. 
 
 Lawyers, as such, may accuse each other of short cuts 
 and trickery ; and medical men, as such, may have their 
 rivalries and their disputes over the ethics of their profes- 
 sion. But whoever heard of a scientific man, as such, 
 whether doctor, lawyer, chemist, geologist, astronomer or 
 scientific man of all work, accusing another scientific man 
 of willful falsehood in the statement of facts? They may 
 doubt the sufficiency of evidence of the alleged or supposed 
 
THE MEDICO-LEGAL SOCIETY. 473 
 
 facts ; or, conceding the facts to exist, may dissent from, 
 criticise, ridicule the conclusions drawn from them ; but the 
 absolute good faith of the genuine devotee of science, in 
 stating facts, seems to be generally conceded. 
 
 Scientific discussion has its rough points, sharp features 
 and acute angles. It is sometimes wity, sometimes sarcastic, 
 sometimes a little acid. And we cannot expect to escape 
 these features of discussion within this hall, simply because 
 we are men. Indeed a little liveliness may sometimes 
 awaken an interest which would otherwise slumber. 
 
 But over all this, over pride of opinion, over all warmth, 
 even over jealousy, if that evil monster could invade these 
 precincts, Science will preside as the constant moderator 
 and the ultimate arbiter ; for we appear here not as the 
 partisans of the medical view, nor the partisans of the legal 
 view, but only as the searchers after and the advocates of 
 Truth. 
 
 Allow me now to suggest for your consideration andbetter 
 judgment a few thoughts as to the means of promoting the 
 interests and usefulness of this Society. 
 
 There should be a constant and regular 1 supply of appro- 
 priate papers to be read and discussed whenever other busi- 
 . ness will permit. Sometimes the reading and discussion of 
 reports will occupy a large part of an evening, seldom all of 
 it. But in a Society like this nothing can supply the place 
 of well prepared scientific papers. And you should not rely 
 entirely upon the exertions of one or more officers to secure 
 the production of these papers. A presiding officer, though 
 diligent in this respect, cannot always know who would like 
 to read, or would consent to read, a paper upon any sub- 
 ject ; and in soliciting a paper from one member, who, out 
 of modesty, declines, might pass by another who is willing, 
 or ready to read, but from the same modesty fails to offer 
 himself. I would see no impropriety in members who would 
 like to read on any particular subject mentioning it to the 
 proper officer, and arranging to have his subject placed on 
 the list of propective papers ; and members are invited to 
 
 do so. 
 
 Concerning the distribution and disposition of scientific 
 
474 THE MEDICO-LEGAL SOCIETY. 
 
 questions, I would submit that the aim should be to have as 
 many as possible of your members to engage in them, and 
 that the effort should be to have the interest aad the respon- 
 sibility of inquiry and determination distributed as generally 
 and as evenly as the opportunities and willingness of mem- 
 bers to do the work would make practicable. However 
 learned, able and useful your Permanent Commission may 
 be, the welfare of the Society, and the interest of members 
 in its labors, would not be advanced by making or allowing 
 such a standing committee to become the absorbent or re- 
 ceptacle of all scientific questions arising here. It ought 
 not to be made, or allowed, to supersede the business and 
 duties of special committees, and thus make the other active 
 members of the Society feel that they have nothing to do, 
 and can be of no aid or use in our investigations. It might 
 be difficult to draw any accurate line of demarcation between 
 it and other committees, but I would suggest, in general 
 terms, that any question arising in a meeting of the Society 
 by motion, resolution, or vote of inquiry, might very well 
 be referred to a special committee to be appointed for 
 that purpose, while any questions arising by correspond- 
 ence, inquiry, or reference, from other sources, and 
 referring not to routine business, nor to the interests of. 
 this Society, as such, but to a purely scientific or medico- 
 legal question, and arising in the interim of our meet- 
 ings, might be laid before the Permanent Commission in 
 the manner provided for in its organization ; and such, I 
 understand, was the object and aim of its distinguished pro- 
 totype, the Permanent Commission of the Medico-Legal 
 Society of Paris. 
 
 I submit that some more definite plan should be adopted, 
 if at all practicable, for the publication in permanent form 
 of our papers and transactions. The present mode of publi- 
 cation in the organ of this Society is good and useful so far 
 as it goes. Do we not need and merit more than this? 
 Other scientific societies and associations publish their 
 transactions in a form more convenient for use and refer- 
 ence, and more sure and easy of permanent preservation. 
 The second volume of our papers and transactions remains 
 
THE MEDICO-LEGAL SOCIETY, 475 
 
 unpublished, while material for a third volume has in great 
 part accumulated. This is, upon every account, to be re- 
 gretted, and it is to be hoped that in this respect we may 
 not longer continue to lag behind sister societies. And 
 whether our papers and transactions are to be published in 
 volumes or not, 1 submit for your consideration whether an 
 arrangement cannot be made, within the means of the 
 Society, or by the co-operation of authors and the publishers 
 of The Sanitarian, to have our papers printed and dis- 
 tributed in pamphlet form. By this means a copy of every 
 paper could be placed, soon after being read here, in the 
 hands of any member of the Society ; many would read who 
 cannot always be here to listen. A more lively interest 
 would be kept up in our proceedings and discussions, and 
 this publication, either in book or pamphlet form, would 
 often enable us to make exchanges with other Societies in 
 this and foreign countries, and thus be making valuable ad- 
 ditions to our library. 
 
 To increase and preserve, to render complete, and there- 
 fore great and useful, the library of this Society ought to 
 be among our most cherished aims and purposes. Libraries 
 are the centres and foci into which the world's thought is 
 condensed, in whose folds truth finds permanent lodgment, 
 surrounded by an army of witnesses. Libraries are the 
 luminaries from which radiate the beams and floods of light 
 to guide and strengthen the race in its search after undis- 
 covered facts, while assuring the mental grasp upon the 
 harvest already gathered. We have made a good beginning 
 with our library. Time, labor and money have been ex- 
 pended upon it. It is already a good collection — one of the 
 best of the kind on this continent. But it is not complete. 
 It can be made fuller and better. The desirableness of 
 doing this is not open for discussion. But plans and means 
 need to be devised and executed. The plan of soliciting 
 and securing contributions of books and pamphlets has been 
 so fruitful and successful in the past, that we may still hope 
 to rely in part upon that mode of increase in the future. 
 But while employing this means to increase and build up 
 our library, some care must be exercised to prevent the ac- 
 
47^ THE MEDICO-LEGAL SOCIETY. 
 
 cumulation of a uselessly large number of copies, especially 
 old editions, of the same work, and to prevent lumbering 
 our shelves with donations of books, very good of their 
 kind, but wholly foreign to our subjects of inquiry and dis- 
 cussion. The other plan, that of direct purchase of books 
 with our own funds, or with donations of money made by 
 others for that purpose, has the advantage that we may 
 thus make sure of the latest editions, and make such select 
 tions as demands for books by members, and discovered de- 
 ficiencies, indicate to be necessary. By this means a library 
 grows, not merely in size and numbers, but also in complete- 
 ness, in unity and efficiency. 
 
 Touching two of the subjects to which I have called your 
 attention, and upon which I would recommend your action — 
 I mean publishing our papers and transactions, and increas- 
 ing our library — 1 am aware that expense is the great diffi- 
 culty which meets us at the threshold. While I am not pre- 
 pared actually to recommend that our revenues be increased 
 by an increase of our annual dues, yet I do venture to sub- 
 mit for your consideration whether such a measure would 
 be wise and practicable. If it could be done without injury 
 to the Society, then certainly our increased ability to print 
 and to buy would lend an increased interest to the Society 
 in the eyes of all, both members and the public at large. 
 
 Again thanking you for the honor you have conferred 
 upon me, and doubting my ability and opportunity to serve 
 you as others might, I am yet sure that no member of this 
 Society entertains a more ardent wish than myself for your 
 success, your prosperity, your renown, and your continued 
 and increased usefulness. 
 
 On the conclusion of the Inaugural Address, Clark Bell, 
 Esq., Jacob F. Miller, Esq., and J. C. Peters, M. D., were 
 appointed a committee to report upon the recommendations 
 of the President. 
 
 Mr. Clark Bell was invited by the Society to prepare 
 for the Society an account of his recent visit to London and 
 Paris, and to the leading scientists in those cities, which he 
 promised in time for the January meeting. 
 
Mental Responsibility and the Diag- 
 nosis of Insanity in Criminal Cases. 
 
 By E. C. MANN, M. D.* 
 
 At the present day medico-legal cases are becoming very- 
 frequent, in which it is necessary to ascertain as to the in- 
 sanity of a person accused of a criminal act, in its relation 
 to his civil capacity, and responsibility for criminal actions, 
 and also as to feigned or concealed insanity. It becomes, 
 therefore, a very interesting question as to what test of in- 
 sanity the law should recognize as avalid defence in criminal 
 cases. This question, although one which it seems difficult 
 to settle satisfactorily, and over which judges, lawyers, and 
 medical experts are constantly disputing, assumes every day 
 greater interest and wider significance, owing to the increase 
 of insanity in our country disproportionate to the increase of 
 population during the past twenty years. Without inserting 
 dry statistics, it is sufficient to say that a comparison of the 
 increase of the population from 1850 to 1870, with the in- 
 crease in the number of insane during the same period, re- 
 veals an increase of insanity over that of population of 
 about 12 percent. In the foreign element this is due to 
 marked changes in habits of living, the changes of food, 
 increased intemperance, working more in-doors, living in 
 badly ventilated tenements, disappointment in business ex- 
 pectations, etc., all of which causes combined tend to im- 
 pair health, break down the nervous system, and tend insens- 
 ibly toward insanity in the offspring. The increase of insanity 
 in our native population is due largely to a change from a 
 vigorous, well-balanced organization to an undue predom- 
 inance of the nervous temperament which is gradually 
 * Read before the Medico-Legal Society, January 2, 1878. 
 
47& MENTAL RESPONSIBILITY. 
 
 taking place in successive generations. The educational 
 pressure on the young, to the neglect of physical exercise ; 
 the increasing artificial and unnatural habits of living; the 
 great excitement and competition in business are all tend- 
 ing to induce and multiply nervous diseases, many of which 
 must terminate in insanity. These causes and the evils re- 
 sulting from them are propagated by the laws of inherit- 
 ance in an aggravated and intensified form. Insanity is also 
 appearing gradually at an earlier age than formerly. In 
 former years the average period at which the greatest num- 
 ber became insane ranged between the ages of thirty and 
 forty ; but an analysis of statistics shows that this average 
 age is coming on at an earlier period, generally appearing 
 between the years of twenty and thirty. This is owing to 
 hereditary influences, which have gradually become intensi- 
 fied by violation of physical laws in early life, want of 
 proper training, or too high pressure in education ; and is 
 also due largely to the great mental activity and nervous 
 strain which characterize the present age and state of civili- 
 zation, and which tend to cause rapid decay of the nervous 
 system. With many persons it is but a step from extreme 
 nervous susceptibility to downright hysteria, and from that 
 to overt insanity. The question of mental responsibility in 
 its relation to .criminal cases is one of great interest, and 
 presents a wide field for study and investigation. 
 
 The facts of criminal psychology have led the writer to 
 regard the impulse of criminal natures in the light of 
 natural laws ; and there is, beyond doubt, an anthropoligical 
 change which lies at the foundation of criminal propensities. 
 There is a deficient cerebral organization, which lies at the 
 base of these criminal natures, which occasions the dis- 
 position to an abnormal moral constitution. The dislike of 
 , work and the love of enjoyment are impulses which', when 
 combined, lead especially to crime when that ethic consti- 
 tution or development is wanting which is necessary to the 
 foundation of a powerful feeling of what is right. A further 
 fundamental element which stands in psycho-physical con- 
 trast to dislike of work is a consciousness of excessive 
 physical strength, which leads to arrogance, and thereby to 
 
MENTAL RESPONSIBILITY. 479 
 
 the pleasure of misusing strength against weakness. This 
 impulse leads to the love of bullying, cruelty and murder, 
 if the higher intellect is absent which should turn the feel- 
 ing of strength in a right direction ; and there is also absent 
 a complete ethical consciousness which should prevent mis- 
 use of power. This ethical weakness may be congenital, as 
 has been remarked, or it may arise from deficient education. 
 In the domain of vices, we meet with a peculiar condii ion 
 of the central nervous system which results in a tempoiary 
 criminal impulse returning with a certain regularity. Such 
 criminals are temporarily seized with the deepest remorse, 
 and are fortified with the best resolutions. They behave for 
 a time in a most exemplary manner, until they relapse again, 
 which relapse is unanimously attributed by them to an irre- 
 sistible impulse. This state of moral epilepsy is of great sig- 
 nificance in the psychology of crime, as a physilogist is led 
 to institute a comparison between such cases and several 
 states of disease, in which a peculiar type is observable, con- 
 sisting in the fact that attacks of illness of more or less 
 duration alternate with more or less long, and, generally 
 for a time preponderant, healthy intermissions. In a broad 
 sense, we may designate all these pathological states as 
 epileptiform, hence the term moral epilepsy, which has been 
 adopted above. 
 
 Leaving this interesting question of the psychology of 
 crime to proceed with the diagnosis of itsanity in criminals, 
 we should ask if the true basis of jurists to proceed upon is 
 not the protection of the existence of normal persons against the 
 ethically degenerate? And the necessary degree of this protection is, 
 most certainly, an essential measure for the severity of the punish-, 
 ment. The first trial of note where there was a question ' of 
 insanity advanced was in 1723, when the trial of Arnold for 
 shooting at Lord Onslow occurred. Although it was shown 
 that Arnold had been of weak understanding from his birth, 
 and that he was doubtless insane, the jury brought in a 
 verdict of guilty, and Arnold would have been executed had 
 it not been for the intercession of Lord Onslow. The lan- 
 guage of the charge to the j ury in this case was in conformity 
 to the rule laid down by Lord Hall, that partial insanity does 
 
4^0 MENTAL RESPONSIBILITY* 
 
 not excuse a person from the consequence of his acts, and 
 that only a total deprivation of reason can furnish such 
 excuse.. In the year 1800 the celebrated trial of Hatfield, 
 for shooting at the King, in Drury Lane Theatre, excited 
 much interest. Although it was proved that in 1793 Hat- 
 field, who was a dragoon, had received a number of severe 
 wounds, which had caused partial insanity, so that he was 
 dismissed from the service, and since that time he had had 
 periodic attacks of insanity, and had been confined as a 
 lunatic, the prosecuting attorney laid down the established 
 rule that a total absence of memoryand understanding could 
 alone shield the prisoner from punishment, and appealed to 
 the jury for a conviction on that ground. Itwas only through 
 the brilliancy of the advocate, afterward Lord Erskine, that 
 the prisoner was acquitted. This trial had a good effect 
 upon the judiciary, as in the year 1812, in the trial of Bell - 
 ingham for the murder of Spencer Percival, Lord Mansfield 
 laid down the law that the capability of distinguishing 
 between right and wrong was the test for determining the 
 prisoner's responsibility, thusdiscarding the old theory of an 
 entire absence of all mental power, and substituting this in its 
 place. Afterward the theory of a general knowledge between 
 right and wrong was modified, and the element introduced 
 that the prisoner must know the difference between right 
 and wrong at the the time of and with regard to the partic- 
 ular act for wliieh he is on trial, in order to render him 
 responsible, and this test has been preserved to the present 
 time. In the early history of own country the same barbar- 
 ism in the treatment of the insane prevailed which darkens 
 the pages of English History. ■ In Governor Winthrop's 
 " History of New England," the case of Dorothy Diilbyr is 
 mentioned, who was executed for killing her child. She was 
 beyond all doubt an insane woman ; but this fact was not 
 recognized by Governor Winthrop, who says of her that ''she 
 was so possessed with Satan that he persuaded her, by his 
 delusions, which she listened to as revelations from God, to 
 break the neck of her own child that she might free it from 
 future misery ." Such was the ignorance and predjudice of 
 the early history of our country. We are at the present day 
 
MENTAL RESPONSIBILITY. 481 
 
 very far from a correct understanding of the workings of the 
 insane mind, for in the recent trial of Scannell the law was 
 laid down as enunciated by the Court of Appeals in 1865, in 
 the case of Willis v. The People, which held "that a person 
 was not insane who knew right from wrong, and that the act 
 he was committing was a violation of law and wrong in itself." 
 This theory of right and wrong is utterly inadequate to meet 
 a large class of cases. There are certain cases, familiar to 
 all specialists in insanity, which suffer from impulsive insan- 
 ity, with a homicidal or suicidal monomania. These patients, 
 without appreciable disorder of the intellect, are impelled 
 by a terrible vis a tergo — a morbid, uncontrollable impulse — 
 to desperate acts of suicide or homicide. These patients, 
 often, are fully aware of their morbid state, appreciate per- 
 fectly the nature of the act toward which they are impelled, 
 and feel deeply the horrors of their situation ; and yet, if not 
 prevented by restraint, will inevitably commit acts of suicide 
 or homicide. A very remarkable case was under the care of 
 the writer, of a man who would, at stated times, acknowledge 
 that he felt an irresistible desire to kill some one, and would 
 voluntarily enter an asylum and remain there until this 
 morbid impulse had passed away, which was generally a 
 period of one or two months. He has often told the writer 
 that his life was made Miserable by the idea that at some time 
 this overwhelming impulse would come upon him so sud- 
 denly that he should commit some desperate homicidal act ; 
 but is not prepared to voluntarily incarcerate himself in an 
 asylum for life, as his lucid intervals somtimes lasts for 
 months at a time. The law as laid down at present would 
 not decide this man to be insane, as he fully appreciates the 
 difference between right and wrong, and the nature and con- 
 sequences of any homicidal act that he may in the future 
 commit. Such cases, which are not at all uncommon, serve 
 to show what fearful injustice may be done under the name 
 of justice when the conclusion is based upon a metaphysical 
 test which is proved by medical observation to be false in its 
 application to the unsound mind. There is still another 
 form of ins inity, denominated "Moral Insanity," in which 
 the intellectual faculties are intact, no delusions, or hallu- 
 
482 MENTAL RESPONSIBILITY. 
 
 cinations existing, but where the moral sense seems utterly 
 obliterated. Such persons have no true moral feeling. This 
 is a disorder of the mind produced by disease of the 
 brain, and is an unqestionable form of insanity, as it often 
 precedes other forms of insanity in which intellectual de- 
 rangement is well marked, as acute mania or general 
 paralysis. In some of these cases there isa modified respon- 
 sibility, the degree of such responsibility being determined 
 by the particular circumstances of each individual case. 
 
 One difficult but important question to be solved is the 
 civil and criminal responsibility of women who plead insanity 
 before courts of justice, and who are often afflicted with 
 kleptomania, pyromania, or who are infanticides, as the 
 result of sexual trouble and disease of the pelvic organs. 
 Such women, under all reasonable conditions, are entitled 
 to the benefit of the doubt, because of their defective menial 
 integrity, caused, perhaps, by pregnancy or by the subse- 
 quent emotional excitement attending parturition, which 
 intensifies the cerebral disorder in a brain already morbidly 
 active. With women, extreme nervous susceptibility readily 
 lapses into insanity. In the sexual evolution, in the par- 
 turient period, in lactation, strange thoughts, extraoidinary 
 feelings, unseasonable appetites, criminal and suicidal im- 
 pulses may haunt a mind at other times innocent and puie. 
 It is probable, also, that young un narried women, guilty of 
 killing their new-born offspring, are so distracted by con- 
 flicting feelings, sharpened to morbid acuteness by the 
 great physilogical movement of parturition, as to be hardly 
 responsible for their acts. 
 
 We come now to the question of the diagnosis of insanity. In 
 most diseases we examine physical signsandsymptoms and de- 
 termine by our sensesthe existence of such diseases. In insan- 
 ity,onthe contrary, we have to be guided chiefly by our knowl- 
 edge of the normal functions of the mind, and in our examina- 
 tion have to rely on our intellect rather than our senses, al- 
 though of course the latter are called in to assist us. It is, how- 
 ever, very often extremely difficult to decide with certainty, 
 as medical experts are expected to do, as to the exist- 
 ence of mental disease. In making an examination of a 
 
MENTAL RESPONSIBILITY. 483 
 
 person accused of crime, and in whom insanity is suspected, 
 the person should be visited bv the medical examiner, who 
 should draw him into a pleasant conversation, and inquire 
 as to previous attacks of insanity, hereditary history, then 
 into any predisposing causes of insanity, such as intemper- 
 ence, vocation, habits, etc., which may have operated in the 
 production of insanity. Also as to injuries of the head or 
 spine which may have occurred, sunstroke, etc. The nervous 
 system should then be examined for the existence of any 
 sucli diseases, as paralysis, epilepsy, catalepsy, or hysteria. 
 The different senses, beginning with sight, should also 
 be examined, and in this way it may be discovered if there 
 are hallucinations or illusions pertaining to the senses. A 
 great many cases are on the border line which separates 
 sanity from insanity, and it often requires the nicest discrim- 
 ination to determine whether such a patient has passed this 
 border line. The writer would suggest a series of eight 
 questions wh'ch, if adopted by jurists in criminal cases, 
 would prove a most efficient and just test as to the existence 
 of insanity in any given case. 
 
 1. Have the prisoner's volitions, impulses, or acts been 
 determined or influenced at all by insanity, and are his 
 mental functions — thought, feeling, and action — so deranged, 
 either together or separately, as to incapacitate him for the 
 relations of life ? 
 
 2. Does the prisoner come of a stock whose nervous con- 
 stitution has been vitiated by some defect or ailment calcu- 
 lated to impair its efficiency or derange its operations? 
 
 3. Has the. prisoner been noticed to display mental infirm- 
 ties or peculiarities which were due either to hereditary 
 transmission or present mental derangement? 
 
 4. Has the prisoner the ability to control mental action, 
 or has he not sufficient power to control the sudden im- 
 pulses of his disordered mind ; and does he act under the 
 blind influence of evil which he can neither regulate nor 
 control ? 
 
 5. Has the act been influenced at all by hereditary taint, 
 which has become intensified so that the morbid element has 
 become quickened into overpowering activity, and so that 
 
484 MENTAL RESPONSIBILITY. 
 
 the moral senses have been overborne by the superior force 
 derived from the disease ? 
 
 6. Was the act affected by, or the product of insane 
 delusion ? 
 
 7. Was the act performed without adequate incentive or 
 motive ? 
 
 8. Does the prisoner manifest excitement or depression ; 
 moody, difficult temper; extraordinary proheness to jealousy 
 and suspicion, or habit of unreasonably disregarding ordin- 
 ary ways, customs and observances ; an habitual extrava- 
 gance of thought and feeling ; an inability to appreciate 
 nicely moral distinctions ; and finally does he give way to 
 gusts of passion and reckless indulgence of appetite ? 
 
 Some or all of which are generally found in connection 
 with transmitted mental infirmity. It may be argued that 
 these mental defects signify not unsoundness, but human 
 imperfection. Certainly if we take these manifestations, 
 any one of them singly and alone, we cannot claim that 
 such a one is invariable an indication of insanity ; but, on 
 the other hand, under certain circumstances each one of 
 them may be an unmistakable sign of insanity, or rather of 
 a morbid cerebral state which may readily lapse into insanity. 
 The disappointments and calamities of life obviously act 
 with greater effect upon an unstable mental organization ; 
 these causes of disturbance meeting with a powerful cooper- 
 ating cause in the constitutional predisposition. Sometimes 
 a crime, even when there have been no previous symptoms 
 to indicate disease, marks the period when an insane tendency 
 has passed into actual insanity — when a weak organ has 
 given way under the strain put upon it. 
 
 There is a class of persons, with a peculiar nervous temper- 
 ament, and in some cases with a, specially insane tempera- 
 ment, who inhabit the borderland between crime and 
 insanity, one portion of which exhibits some insanity, but 
 more of vice, and the other portion of which exhibits some 
 vice, but a preponderance of insanity ; and it is very difficult 
 to form a just estimate of the moral responsibility of such 
 persons, especially when we reflect upon the fact that moral 
 feeling is a function of organization, and is as essentially 
 
MENTAL RESPONSIBILITY. 485 
 
 dependent upon the integrity of that part of the nervous 
 system which ministers to its manifestations as is any other 
 of mental function. The writer has met with cases in which, 
 as a result of parental insanity, there has been a seemingly 
 complete absence of moral sense and feeling in the offspring; 
 and this has been a true congenital depravation, or a moral 
 imbecility, so to speak. Of course such children can hardly 
 fail to become criminals. In this connection it is interest- 
 ing to note that moral degeneracy often follows as a se- 
 quence upon disease or injury to the brain. A severe attack 
 of insanity sometimes produces the same effect, the intellect- 
 ual faculties remaining as acute as ever, while the moral 
 sense becomes obliterated. When such persons are acquit- 
 ted, on trial for a criminal act, on the ground of insanity, they 
 should be remanded to medical custodv, and should never be 
 set at liberty until the medical superintendents of asylumns 
 deem them fully recovered. But the commonest justice plainlv 
 indicates that such custodial restraint be of a medical, and 
 not of a penal nature. It is a very difficult thing for the 
 laity to realize how sane a person may appear, who all the 
 while has a greater deragement than was even suspected, until 
 something happens to elicit the evidence of it, such as an 
 attack of illness or severe mental strain, some unconquer- 
 able impulses seizes him, and some homicidal or suicidal 
 act results to the great surprise of every one. In the 
 same manner inebriety often appears in maturity as a 
 result of ill health, mental shock, etc.; and it becomes an 
 interesting question as to the degree of moral or criminal 
 responsibility which attaches to inebriates, as inebriety often 
 depends upon an abnormal organic development of the 
 nervous system that has descended from generation to gen- 
 eration, gaining in intensity until it manifests itself in active 
 inebriety, and there must certainly be a modified responsi- 
 bility when homicidal or suicidal acts are committed during 
 periods Of such abnormal cerebration. In such cases a 
 criminal act may be committed in consequence of cerebro- 
 mental disease, without any apparent lesion of the percep- 
 tive and reasoning powers. In these cases, also, the mental 
 disorder is of a sudden and transitory character, not preceded 
 
486 MENTAL RESPONSIBILITY. 
 
 by any symptoms calculated to excite suspicion of insanity. 
 It is a transitory mania or sudden paroxysm, without ante- 
 cedent manifestation, the duration of the morbid state being 
 short, and the cessation sudden. In these cases the criminal 
 acts are generally monstrous, unpremediated, motiveless, 
 and entirely out of keeping with the previous character and 
 habit of thought of the individual. Such attacks ate transient 
 in proportion to their violence, and the transition occurs on 
 the completion of the act of violence. There is an instan- 
 taneous abeyance of reason and judgment, during which 
 period the person is actuated by mad and ungovernable 
 impulses. 
 
 We will now consider briefly the medico-legal importance 
 of epileptiform attacks which may be partial in character and 
 which may not reach convulsive activity except so far as the 
 mind is concerned. These attacks always display periodicity , 
 and after the paroxysm there is an intermediate stage, during 
 which in most cases the person remains in a confused state 
 perhaps for some hours, and is apt, subsequently, to retain 
 only a vague and general notion of the preceding events. 
 Thus in a homicide by shooting-, the murderer would be 
 likely to be roused by the sound of the pistol shot and to 
 remember it, although he would not very likely remember 
 th*e altercation at all, or what passed between them. A case 
 occurred recently of considerable interest from a medico- 
 legal point of view, in which amurderwas committed during 
 an epileptiform seizure, or rather, more strictly speaking, 
 during a state of transitory moral epilepsy, which was the 
 result of a previous sunstroke, the immediate exciting 
 cause being an attack of illness and the taking of a small 
 quantity of alcoholic stimulus, which it is well known acts 
 as a poison upon persons who have been sunstiuck. This 
 state of " moral epilepsy" is a morbid affection of the mind 
 centres, which destroys the healthy co-ordination of ideas 
 and occasions a spasmodic or convulsive mental action. 
 The will cannot always restain, however much it may strive 
 to do so, a morbid idea which has reached a convulsive ac- 
 tivity, although there may be all the while a clear 
 consciousness of its morbid nature. The case just 
 
MENTAL RESPONSIBILITY. 487 
 
 referred to had complained of pains in the head and 
 sleeplessness, which" had displayed marked periodicity, 
 and which had been accompanied with great irritability 
 of temper excited by trifles and seemingly unconnected 
 with personal antipathies. As has been previously stated 
 the person alluded to had been suffering from quite a severe 
 illness, and, after taking a small quantity of alcoholic stimu- 
 lus, went out to walk. He met a friend with whom he had 
 been familiar for years, and a discussion arose as to the re- 
 spective merits of certain politicians, when, the discussion 
 becoming excited, the man pulled out a revolver and shot h s 
 friend. He then went in a confused and dazed state and sat 
 for some hours upon a dock near a river, and subsequently 
 went home and burst into tears, and informed his wife of 
 the sad occurrence, and gave himself up at the police 
 station. There was no simulation of insanity by pretending 
 to be incoherent, or by strange actions, and no attempt 
 either on the part of himself or wife to pretend that the act 
 was an insane one. There was, however, a total blank in the 
 prisoner's mind respecting the events immediately preced- 
 ing the pistol-shot, which seeemed to have aroused his 
 attention for the time ; and he had no recollection of the 
 fact that he sat on the dock for some time afterwards, us he 
 was seen to do. The writer was consulted as an expert, and 
 upon ascertaining the prisoner's previous history gave it as 
 his opinion that there had existed for months previous to the 
 occurrence a profound moral or affective derangement,which 
 from its marked periodicity was evidently epileptiform in 
 character, and that the sudden homicidal outburst supplied 
 the interpretation of the previously obscure attacks of recur- 
 rent derangement. There had evidently been induced by the 
 sunstroke in this case an epileptiform neurosis, which had 
 been manifesting itself for months, chiefly by irritability, 
 suspicion, moroseness, and perversion of character, with 
 periodic exacerbations of excitement, all foreign to the man 
 previous to theattack of sunstroke. It is well known among 
 specialists in insanity that this epileptiform neurosis often 
 exists for a long time in an undeveloped or marked form, 
 and this neurosis is, moreover, connected with both homi- 
 
488 MENTAL RESPONSIBILITY. 
 
 cidal and suicidal mania. Such attacks often are noticed to 
 occur periodically for some time before»the access of genuine 
 epilepsy. I have often witnessed in cases under my charge 
 abortive and incomplete epileptiform attacks where there 
 were no convulsions and where there was no complete loss of 
 consciousness. I have noticed in such cases either a mo- 
 mentary terror, slight incoherence, a gust of passion, or a 
 mental blank, the patient perhaps stopping in the middle of 
 a sentence. The patient would then be himself again, quite 
 unconscious of what had happened to him. Accompanying 
 this confusion of ideas. may be, as I have remarked, instan- 
 taneous impulses,* either of a suicidal or homicidal nature. 
 This class of patients I have always found irritable, easily 
 excited, very emotional without adequate external causes, 
 easily losing their train of thought, and often unable to 
 collect or fix their thoughts. Such cases have told me that 
 they felt themselves changed in character, and have acknowl- 
 edged that they often felt impelled to strange and violent 
 acts by some power which they could neither understand nor 
 resist Such patients may entertain delusions of fear and 
 persecution, and commit criminal deeds, as a result of such 
 delusions. When such cases, in their terror or distress of 
 mind, commit some violent deed, that they either experi- 
 ence immediate relief — as was the case with one patient 
 under my care, who was only relieved by suddenly breaking 
 out a pane of glass when his paroxysm would subside ; or 
 they continue in a state of exitement unconscious, or very 
 imperfectly conscious, of the gravity of their acts. When 
 they become conscious again, their memory is apt to be very 
 uncertain as to preceding events. Griesinger says " Indi- 
 viduals hitherto perfectly sane, and in the full possession of 
 their intellects, are suddenly, and without any assignable 
 
 * Owing to the writings of Highlings Jackson, Maudsley, Russell Reynolds, 
 Hammond, Trousseau, Faliet, Esquirol, and others, epileptic vertigo is a re- 
 cognized disease. There is abundant testimony to show that during such 
 seizures persons may perform actions, and even speak and answer questions, 
 automatically. There are numerous examples in the works of the above 
 authors proving that in an unconscious condition persons can progress from 
 odd or eccentric actions to deeds of violence, suicide, or murder, being unable 
 to remember the circumstances afterwards, and therefore irresponsible for 
 their actions. 
 
MENTAL RESPONSIBILITY. 489 
 
 cause, seized with the most anxious and painful emotions, 
 and with a homicidal impulse as inexplicable to themselves 
 as to others. Maudsley says, " Let it be borne in mind, 
 then, that there are latent tendencies to insanity which may 
 not discover the least overt evidence of their existence ex- 
 cept under the strain of a great calamity, or of some bodily 
 disorder, and that the outbreak of actual disease may then 
 be the first positive symptom of unsoundness - " The ques- 
 tion as to the degree of mental responsibility attaching to 
 such cases is one of great interest to psyschologists and also 
 to jurists, and one to which it is hoped in the future much 
 more attention may be directed than has been given to it in 
 the past. 
 
 In closing this paper I propose to consider very briefly 
 the tenability of the position which has been assumed by 
 some jurists, and also, I am sorry to say, by some medical 
 men, relative to criminal cases, in which it has been asserted 
 that it is the habit of counsel to retain medical experts as 
 special pleaders — not to give an impartial scientific opinion, 
 but to concoct the same ingenious case for the defence. 
 Before criticising such assertions I would remark, what is 
 already known to most of the medical and legal gentlemen 
 present, that the men who obtain the most coirect theories 
 of human conduct ; the men who discover in the highest de- 
 gree the secret springs of action ; the men who penetrate 
 the most deeply into the mysteries of human delinquency, 
 do so by the study of morbid psychology in that broad and 
 liberal manner which is possible only amid large collections 
 of the insane, and are the men who have been accused, as I 
 have stated, of being in the habit of prostituting their sci- 
 entific opinions. I would remind such critics that imper- 
 fection, deficiency, or obliquity of human conduct are gen- 
 erally supposed at the present day by the greatest thinkers 
 to be the result of organic influences, and the revelations of 
 character so often found on the records of our courts can be 
 cleared up in no degree except by the profound study of 
 organic conditions, in connection with abnormal mental 
 phenomena. By the aid of such study history and biog- 
 raphy would be read by the aid of a new light, and it would 
 
49° MENTAL RESPONSIBILITY. 
 
 be seen that much of what is called genius is the result, of a 
 morbid organic activity ; and that the siints, heroes and 
 martyrs of history have become such more by virtue of a 
 peculiar temperament than by the profound sense of moral 
 or religious obligation ; and also that many of the horrible 
 crimes classical in history have proceeded rather from cere- 
 aral disorder than a native thirst for blood. The expressions 
 of contempt and disgust which have characterized the re- 
 marks of the critics of medical experts, we take it, are owing 
 to the fact that they do not always display invariable unanim- 
 ity of opinion on questions of mental pathology whenever 
 they appear on the witness-stand. Discrepancy of opinion 
 to such critics evidently implies incompetency, to use the 
 mildest term, and it would seem to appear that they expect 
 of experts nothing short of omniscience and infallibility. 
 The stand which has been taken by such persons shows a 
 great want of intelligent thought on the subject, for it is 
 about as reasonable to expect from medical experts invari- 
 able unanimity oC opinion on the witness-stand as it would 
 be to suppose that every judicial decision expressed the 
 united opinion of the full bench, or that the followers of 
 physical science should be unanimous regarding all points 
 in science. I venture to say that there is no scientific study 
 which ensures any nearer approach to unanimity of opinion 
 among its followers than does that of insanity. In alleged 
 cases of insanity different alienists truly and faithfully de- 
 clare the results of actual observation, while the subject 
 matter is often regarded from various points of view. One 
 expert may arrive at the conclusion that the person is not 
 insane, while another, guided by a class of cases that have 
 come under his notice, though perhaps scarcely known to 
 the other, sees indications of insanity in certain acts or traits 
 that otherwise he would have regarded as merely the singu- 
 larities of a sane mind. The objections of such critics de- 
 pends on a complete ignoring of the exact purpose of skilled 
 testimony in. judicial proceedings. I enjoy the honor of the 
 acquaintanceship of many of our most eminent experts, and 
 I have never yet seen a case where judgment has been 
 warped or perception of truth dulled or modified by the, fact 
 of compensation. Such opinions as have been given have 
 
MENTAL RESPONSIBILITY. 
 
 49 1 
 
 been, so far as the writer has known, honest and conscien- 
 tious. It is doubtless true that there are men who labor 
 under the infirmity of supposing that a little actual knowl- 
 edge warrants them in claiming a great deal they do not 
 possess, and that thus opinions are foisted upon the jury- 
 utterly unworthy of their confidence ; but that this the case 
 with medical experts deserving of the name I utterly deny. 
 The class of persons whom I have alluded to severely criti- 
 cise the theory which supposes that a man may, under the 
 influence of periods of abnormal cerebration — of sudden and 
 transitory mental disorder — commit criminal acts, and im- 
 mediately afterward undergo a tudden transition to a normal 
 state of cerebration. Such persons cannot be familiar by ex- 
 perience, I think, with the first symptoms of approaching 
 mental derangement — with its sudden exacerbations and 
 and reasoning unreason — and cannot know how little power 
 of control there often is over suddenly arising morbid ideas or 
 impulses, or they would be more careful about denying the 
 irresponsibility of the actions of persons displaying such 
 impulses Such persons consider moral feeling from a 
 mental standpoint, and without reference to its connection 
 with physical structure ; but, as I have previously re- 
 marked, moral feeling is a function of organization, and 
 cannot with propriety, 1 think, be separated from it. One 
 of the very earliest symptoms of insanity,as most alienists are 
 aware, is a complete deadening and perversion of the moral 
 sense, and this symptom often ushers in mental derange- 
 ment which subsequently exhibits intellectual impairment 
 and decay, the disorder running through the various phases 
 of insanity, and terminating in dementia, organic degenera- 
 tion of the brain, and finally death. In irresistible impulse, 
 which has a shorter duration than transitory mania, to 
 which it is allied, we shall generally find hereditar3" taint, 
 which establishes partially its claim as a separate and inde- 
 pendent form of insanity. It has a shorter duration than 
 transitory mania, and a perfect recollection is retained of 
 what takes place during the paroxysms, and it has no 
 apparent cause ; whereas, we can detect cerebral conges- 
 tion in transitory mania, which generally can be traced to 
 intemperance or epilepsy, as in the case I have previously 
 
49 2 MENTAL RESPONSIBILITY. 
 
 mentioned. I have traced in patients suffering' from irre- 
 sistible impulse, where the disease, for disease it is, consists 
 in the blind impulse, and where there is often a terrible 
 struggle maintained between the deliberation and directing 
 powers and the overpowering morbid will, a premonitory 
 stage, which has consisted either in general malaise insup- 
 portable general feelings of weight, distress, anxiety, fear, 
 or local sensations in the head. Sometimes trivial external 
 causes provoke the outburst of fury. Patients have con- 
 fessed to me that irresistible homicidal impulses have taken 
 possession of their minds wildly and forcibly, and in in- 
 stances where the intended victim has been a person 
 regarded with strong affection. The contest which is often 
 maintained between two spiritual personalities in the same 
 individual is at times terrible, as in the case of hypochon- 
 driac who, in dread of yielding to a homicidal impulse, cut 
 off his arm. That such irresistible impulses are disease, and 
 are dependent upon physical changes, is proven by the fact 
 that, like other forms of nervous disease, they are cured, 
 sometimes on the establishment of puberty, sometimes by 
 work or occupation, and sometimes by a powerful moral 
 shock ; also it is proved by the fact, which I have before 
 alluded to, that there are often, the same precursory symp- 
 toms which attend other forms of the neuroses, such as 
 exalted sensibility, neuralgic suffering, sleeplessness, diffi- 
 culty in fixing attention, and many vague, indefinable sen- 
 sations. 
 
 I have endeavored, as well as I have been able, to present 
 a series of psycho-physical disturbances which more or less 
 affect the soundness of reason and which also affect, in vari- 
 ous degrees, spontaneity. I have tried to demonstrate states 
 of constitutional disturbance, under which, I think, observers 
 will agree, it is difficult to conceive how the intellect can act 
 either calmly or clearly, and, in closing, can only expi ess 
 the wish that this subject will in the future be established 
 on a sound basis by the united labors of the medical and 
 legal profession of our own country ; and I think it can 
 hardly fail to do so, under the cognizance of so many gentle- 
 men already eminent for their advice in psychological 
 discrimination. 
 
Expert Testimony — Its Nature 
 and Value. 
 
 By JACOB F. MILLER, Esq.* 
 
 It is the object of evidence to establish facts for judicial 
 determination. Such evidence consists of written docu- 
 ments or depositions of living witnesses. These are of two 
 kinds, viz : Ordinary witnesses, who depose to facts ; and 
 experts, or skilled witnesses, who depose to matters of 
 science. The former tell what they know, the latter tell 
 what they think— what they believe The first state facts, 
 the latter tell what the facts mean. 
 
 "An expert," says Worcester, " is a person having skill and 
 experience or knowledge on in certain professions— a scien- 
 tific witness." He is one taught by experience. His knowledge 
 extends beyond the reach of ordinary men. It reaches the 
 domain of science. 
 
 Experts were known to the Roman law, and during all 
 the history of the common law. Indeed, notwithstanding 
 the unsatisfactory nature of much of the expert testimony 
 produced in our courts, it is difficult to see how the use of 
 this class of testimony can be avoided. Courts and juries 
 are not presumed to be skilled in all the scientific questions 
 which are involved in the cases that they are called upon to 
 try. They cannot understand the evidence produced. They 
 need an interpreter. A witness who speaks German cannot 
 be understood by a juror who knows no other language than 
 the English. To become intelligible, some one must trans- 
 late it, tell what it means. So a homicide has been com- 
 mitted, a pistol-ball has entered the body of a person, who 
 
 * Read before the Medico- Legal Society, May fith, 1877. 
 
494 EXPERT TESTIMONY — ITS NATURE AND VALUE 
 
 soon thereafter died. Did the shot cause the death? 
 It may or may not have done so. It is necessary that some 
 one acquainted with the effect of gun-shot wounds should 
 be called to testify as to the probable cause of the death, and 
 explain the connection between the cause, the pistol shot, 
 and the effect, viz : the death. A drug has been adminis- 
 tered. Soon thereafter the receiver of the drug dies. Was 
 he poisoned ? It requires the skill of one who knows what 
 ihe poison is, what its effects are upon the human system, 
 and how its presence can be protected, ' to determine this 
 question ; a special knowledge is required from the person 
 who is 10 give an opinion as to the cause of death. The rule 
 in such cases is well stated in Cooper vs. The State, 23 Texas, 
 Rep. 336. The Court said: 
 
 'It is a familiar general rule of evidece that witnesses 
 must speak as to the facts, and cannot be permitted to give 
 their belief or opinion. It must be left to juries to draw in- 
 ferences from the facts. But to the general rule here stated 
 there are exceptions. In certain cases certain persons may 
 give their opinions to the jury. I cannot better state the 
 principle on which the exceptions to the general rule 
 repose than by quoting the language of the Judge who 
 delivered the opinion of the Court in the Jefferson In- 
 surance Company vs. Cotheal, reported in 7 Wend, 73. 
 In that case Judge Sutherland said : 'On questions of scien- 
 ence or skill or ttade, persons of skill in those paticular 
 departments are allowed to give their opinion in evidence; 
 but the rule is confined to cases in which, from the very 
 nature of the subject, facts disconnected from such opinions 
 cannot be presented to a jury as to enable them to pass 
 upon the question with the requisite knowledge and judg- 
 ment. Thus a physician, in many cases, cannot so explain 
 to a jury the cause of the death, or other serious injury of 
 an individual, as to make the jury distinctly perceive the 
 connection between the cause and effect. He may therefore 
 express an opinion that the wound given, or poison admin- 
 istered, produced the death of the deceased ; but in such 
 case the physician must state the facts on which his opinion 
 is founded.' " 
 
EXPERT TESTIMONY ITS NATURE AND VALUE. 495 
 
 And Mr. Starkie states the rule in these words : " The gen- 
 eral distinction is that the jury must judge of the facts for 
 themselves ; but that whenever the question depends on ihe 
 exercise of peculiar skill and knowledge that may be made 
 available, it is not a decision by the witness on a fact to the 
 exclusion of the jury, but the establishment of a new fact, 
 relation, or connection, which would otherwise remain un- 
 proved," 
 
 And Mr. Greenleaf says that "where scientific men are 
 called as witnesses, they cannot give their opinion as to the 
 general merits of the cause, but only their opinions as to the 
 facts proved." 
 
 Physicians may appear in two capacities. When they 
 depose to facts they differ in no respect from ordinary wit- 
 nesses — their testimony is then confined to their knowledge 
 of the facts of the case. They may also be called as experts. 
 It is in this capacity that we are interested in them to-night. 
 In both cases they are obliged to respond to a subpoena, 
 but in the former only are they compelled to testify. Either 
 party to a litigation is entitled by law to the testimony of 
 any person who can enlighten the Court and jury upon the 
 facts of the case; but a physician's opinions, his knowledge 
 of his profession, his skill, are his own, to be kept or im- 
 parted, at his pleasure. While, therefore, he might be 
 compelled to come to court, and would be punished for con- 
 tempt of court if he refused ; he could not be compelled to 
 give his opinions, to act as an expert, except, perhaps, in the 
 case of the Government, which has a right to command the 
 services of every individual owing allegiance to it. His 
 knowledge is his own, and he parts with it upon his own 
 terms 
 
 The position of a medical expert, is, therefore, one of dig- 
 nity. His appearance is voluntary. He speaks to science. 
 He produces the connecting lirk between cause and effect — 
 between the act of the accused and the allegations made 
 against him. As the jury are usually ignorant of the matters 
 to which he speaks, the physician should be a person of the 
 highest skill and strictest integrity. His opportunities for 
 good or injury are great. He may rescue an unfortunate 
 
496 EXPERT TESTIMONY — ITS NATURE AND VALUE. 
 
 neighbor from the gallows and save his family from disgrace, 
 or bring them all down in one common ruin. And because 
 the jury are ignorant of the relation between the cause and 
 the effect, and the physician is called upon to supply it, 
 his testimony becomes important, often controlling. 
 
 It is not surprising, therefore, if he is questioned closely, 
 too closely often to be agreeable. Indeed, many skillful 
 physicians have refused to testify as experts in any case, 
 preferring to forego the fee rather than submit themselves 
 10 a sharp cross-examination. An honest witness is entitled 
 to respectful treatment at all times. But suppose he aban- 
 dons his neutral position, and evinces an undue partiality 
 for one side against the other, or suppose he is mistaken in 
 his statement respecting the questions of science about 
 which he testifies, shall his feelings be spared and the truth 
 fail of vindication? Justita fiat ruat ccelum. Let the truth 
 triumph, at whatever cost. 
 
 Propeily speaking, an expert is not a witness on either 
 side. He does not depose to the facts which form the basis 
 of the judgment. He is not concerned with the result- 
 When he has stated what certain facts indicate, what they 
 mean in reference to the issue joined between the parties 
 litigant, his office ends. The facts upon which the judg- 
 ment is to be based are to be found by the jury, whose prov- 
 ince the expert should not be allowed to invade. He is not 
 to answer the question, Is the accused guilty or not guilty ? 
 Is he sane or insane ? Those are for the jury. He is to say 
 whether assuming certain facts to be shown, they, as a 
 matter of science, would indicate what is necessary 
 to meet the allegation against the accused. He might, 
 for instance, testify that certain facts hypothetically 
 stated indicate insanity ; but the jury may say that they 
 do not think those facts established. There is no con- 
 flict. The expert is not impeached. No reflection is cast 
 upon him. But he does not always remember this. He 
 sometimes acts as if he were a retained witness, a testifying 
 advocate. He feels that he has as deep an interest in the 
 result as the counsel who represents the same side. But 
 their relations are widely different. The counsel presents 
 
EXPERT TESTIMONY — ITS- NATURE AND VALUE. 497 
 
 his side of the case, irrespective of his own private opinions. 
 He may argue whatever legitimately grows out of the evi- 
 dence. The expert is expected to give his true opinions; to 
 state exactly what he thinks ; to tell the truth, the whole 
 truth, and nothing but the truth. 
 
 The counsel presents whatever facts can lawfully be in- 
 troduced bearing upon his side of the case, leaving the 
 other side to take care of itself. Indeed, Lord Brougham 
 declared that a counsel might do everything in his power to 
 gain his cause, even if the State were ruined thereby. Such 
 an extreme doctrine has not found favor with the legal pio- 
 fession ;. but it is his duty to present whatever facts will aid 
 his side of the cause, and it is his right to make any obser- 
 vations legitimately growing out of them. But such liber- 
 ties in a witness are utterly inexcusable, and it becomes the 
 duty of counsel to set him right, if he wanders so far from 
 the sphere of his legitimate duties. 
 
 To illustrate his neutral position, let us take the case of 
 The State vs. Knight, 43 Maine, p. n. A Mrs. Knight was 
 found dead with her throat cut from ear to ear. All the 
 great arteries and blood vessels of the neck were severed, 
 apparently at a single stroke. Could she have done it her- 
 self ? This was a question entirely independent of the issue 
 before the Court. If she could, and as no one saw her 
 killed, it would he difficult so fasten the guilt upon pome 
 other person. If she could not, then who committed the 
 act? Blood was found upon a knife which the prisoner was 
 supposed to have used. Blo< d was found also upon some 
 clothes and some shingles in possession of the accused. He 
 said it was the blood of a sheep. If so, it was a matter of no 
 significance against the accused But if itwere human blood 
 it formed a strong item of evidence against him. A chemist 
 examined the blood and pronounced it human blood. But 
 this testimony was not in any proper sense against the 
 accused. It might have been his own blood. It became 
 necessary to connect it with the death of Mrs. Knight. That 
 was not a question for an expert, as it involved no question 
 of skill. All the testimony given by the experts might have 
 been true, and yet the accused be entirely innocent. Let 
 
49^ EXPERT TESTIMONY — ITS NATURE AND VALUE. 
 
 him, therefore, remain neutral, if he wishes his character as 
 a witness to be respected. 
 
 As medical experts testify to matters of science, it is for the 
 honor of the medical profession that their testimony should 
 be correct. Not only may ignorance and incapacity bring 
 disastrous results in the particular case under investigation, 
 but the whole profession thereby suffers disgrace. Indeed, 
 in so marked a degree have these appeared in some cases, 
 that Judges have not hesitated to tell the jury that the ex- 
 pert testimony was wholly unreliable, and that they need 
 not be guided by it. It would not be difficult to raise a doubt 
 about the sanity of any man in New York. 
 
 One safeguard is in the right of the opposing counsel to 
 inquire into the qualifications of the person offering him- 
 self as an expert. This is not a full protection, for the 
 Court itself does not know, or is not presumed to be skilled 
 in any science, except that of law. He is, to a large extent, 
 dependent upon the witness himself, respecting his qualifi- 
 cations. Yet it is held that, after the preliminary examina- 
 tion as to qualification, whether he shall be permitted to 
 testify, is a question of law for the Court. If the Court 
 does his duty, he will not allow a physician to testify as an 
 expert, unless he is specially qualified, by experience, to 
 speak upon tjhe subject of science under consideration. 
 Because a man is a physician, he will not be allowed to 
 testify to everything which comes within the scope of medi- 
 cal science. 
 
 In Emerson vs. Lowell Gas Light Co., 6, Allen 148, a 
 physician was offered to testify as to the effect of breathing 
 burning gas. The Court heard his qualifications and re- 
 jected him. On appeal, the Court above said: 
 
 " The testimony offered as to Dr. Bass was that he was a 
 physician, and as such had witnessed the effects of the gas 
 which escaped from the defendant's pipes at a time when 
 the plaintiffs allege that they were injured. The persons 
 whom he saw lived in another house in the neighborhood. 
 The mere fact that he was a physician would not prove that 
 he had any knowledge of gas, without further proof as to 
 his expe-rience ; for it is notorious that many persons prac- 
 
EXPERT TESTIMONY ITS NATURE AND.VALUE. 499 
 
 tice medicine who are without learning ; and a physician 
 may have much professional learning, without being ac- 
 quainted with the properties of gas or its effect on health. 
 And the observation of a man who is at the time inexpert is 
 of no value, and does not qualify him to give opinions. 
 The Court are of opinion that the testimony of Dr. Bass 
 was rightly excluded." 
 
 The Court in the same case held that "one who is an 
 expert may not only give opinions, but may state general 
 facts which are the result of scientific knowledge or profes- 
 sional skill." 
 
 In the Commonwealth vs. Rich, 14, Gray 333, Jacob 
 Mitchell, a witness, called on behalf of the defendant, testi- 
 fied that he had been in practice about thirty years as a 
 physician, that he had made the subject of menial disease a 
 study, but not a special study; that he had considered the 
 matter only so far, in his general practice, as to determine 
 •whether a patient was in such a condition of mind as to require 
 treatment for insanity, and if he was, he had been accus- 
 tomed to call in the services of a physician who hud made 
 the subject of insanity a special study, and had experience 
 in the treatment of mental disease. The Court refused to 
 allow the witness to be interrogated as to the question of 
 sanity or insanity upon a hypothetical case stated as arising 
 out of the testimony. He had not had sufficient experience 
 to qualify him as an expert in cases of mental disease. 
 
 In Caleb (a slave) 7js. The State, 39 Mississippi, Rep. 732, 
 a witness who made no pretensions to any knowledge of 
 medicine or surgery was allowed on the trial to state his 
 opinion as to the character of the wounds received by the 
 deceased. He said that " he had frequently seen gun-shot 
 wounds and wounds made with a knife on the body of men," 
 describing each ; but the Court above held that it was error 
 10 permit him to testify. 
 
 Hence it appears that he who would testify as an expert 
 should be peculiarly fitted for the work of giving opinions 
 on the subject, and have more than ordinary knowledge on 
 the subject. No precise limits can be set. For as science 
 is constantly progressing, the extraordinary knowledge of 
 
5°0 EXPERT TESTIMONY — ITS NATURE AND VALUE. 
 
 to-day becomes the ordinary knowledge of to-morrow. A 
 few advanced spirits make discoveries which soon become 
 the common property of the world. The standard of the 
 expert must change with the progress of his science. But 
 as all sciences have proceeded to such great length, it is 
 obvious that any one who would extend his knowledge be- 
 yond these limits must be content with a narrower range. 
 And hence the sphere of the expert in any one science is 
 proportionably narrowed. The tendency is to specialties. 
 No one physician expects to master all branches of his pro- 
 fession, and hence no one physician can expect to act as an 
 expert in every class of cases which come under the cogniz- 
 ance of members of his profession. 
 
 in Fairchild vs. Bascomb, 35 Vermont Reports, 409, the 
 Court said : 
 
 The mere fact that a person was, by education, a phys- 
 ician, if he had not practiced his profession, we should not 
 deem sufficient to justify his admission as an expert. So, if 
 he devoted himself exclusively to one branch of his pro- 
 fession, and had no practical experience in the subject 
 matter to which he was called to testify — as if an oculist 
 was called to testify about insanity — we should not deem 
 him admissible. See also Bowman vs. Woods, 1 Iowa, 441; 
 Corsi vs. Maretzek, 4 E. D. Smith, 1. 
 
 While the Court can inquire somewhat into the extent of 
 the knowledge and experience of the witness offering him- 
 self as an expert, it cannot discriminate between the various 
 schools of medicine. The reason is obvious. The Court is 
 not informed on the subject. The Court is not presumed to 
 know anything about niedicine or surgery. Therefore when 
 a medical witness offers himself, and declares his ability to 
 testify, and shows that he has had the requisite experience, 
 the Court cannot reject him. He must be allowed to give 
 his opinion. His knowledge can be tested on a cross-exami- 
 nation, and in all cases he must state the facts upon which 
 his opinions are based. This is indispensable. The reason 
 of it is obvious. He is endeavoring to enlighten the jury 
 upon a question of science. He is stating his opinion of 
 what? If it is not of something similar to the case under con- 
 
EXPERT TESTIMONY — ITS NATURE AND VALUE. 501 
 
 sideration, the opinion will be of but little service to the jury. 
 He therefore states the facts upon which his opinion is 
 based, and the jury compare this state of facts with the facts 
 which they think have been proved, and form their conclu- 
 sions accordingly. 
 
 The reasons for this rule are well stated by Campbell, J., 
 in White vs. Bailey, 10 Michigan Reports, 159, as follows : 
 " First, it is necessary, in order to enable other experts to 
 determine whether the opinions expressed by the witness 
 are correct, and to enable the parties to contradict them if 
 wrong. Second, it is necessary, in order that if an opinion 
 is given on a mistaken or perverted statement of facts, 
 the truth may be elicited from others to destroy the founda- 
 tion of the conclusions. And a third reason might be men- 
 tioned, which is that the Court and the jury may know, 
 from his opportunities, what means the witness had of form- 
 ing any opinion at all. These are rudimentary principles, 
 which cannot be safely departed from." 
 
 So necessary was the stating the facts upon which the 
 opinion was based regarded in Dewey vs. Warfield, 7 Mary- 
 land, 73, that a judgment obtained through a disregard of 
 this rule was reversed. It was a contested will case. Sub- 
 scribing witnesses and others were allowed t6 testify with- 
 out showing proper qualifications. On appeal, the Court 
 said: 
 
 '' We do not deem it essential to set out in detail the testi- 
 mony of each witness. It is sufficient to say that among 
 those examined on the part of the caveators, there were no 
 professional characters — that is, physicians — and that nearly 
 all of them gave their opinion of his mental capacity with- 
 out assigning the facts from which that opinion was de- 
 duced. In regard to these opinions, unsupported by 
 circumstances, there can be no doubt they were wholly 
 inadmissible, as they did not come from professional ex- 
 perts." 
 
 It follows- from this that professional books are not 
 competent evidence. They are treatises upon certain 
 subjects, stating general principles, but having no relation 
 to the particular case under consideration. The jury want 
 
5° 2 EXPERT TESTIMONY — ITS NATURE AND VALUE. 
 
 an explanation of that case. Professional books cannot give 
 it. A witness may, however, refer to such books, as con- 
 taining the generally accepted opinions of the profession, 
 and as sustaining him generally, but cannot read them as 
 part of his evidence. The author was not under oath. He 
 cannot be cross-examined and his knowledge tested. The 
 books do not contain a statement of the facts upon which 
 his opinion was formed. The witness on a trial gives an 
 opinion upon facts as they are claimed to be proved. In 
 some way he must get a knowledge of those facts. Books 
 deal with general propositions, not with particular cases. 
 Each case needs its own interpreter. 
 
 Medical witnesses cannot be asked questions, as experts 
 which can be answered equally well by other persons. If 
 the jury can know the answer as well as he, the witness is 
 not needed. Hence, whatever lies within the range of 
 men's general knowledge is not the subject for an expert. 
 
 In Woodin vs. The People, the defendant's counsel asked 
 the physician the following questions : "From what you 
 know of Mrs. Woodin's health and strength, in your opinion 
 could the defendant have carnal connection with her against 
 her will, without resorting to other means than the exercise 
 of his ordinary physical powers ? From what you know of 
 Mrs. Woodin's health and strength, in your opinion could a 
 man have carnal connection with her against her will, with- 
 out resort to violence beyond the exercise of his ordinary 
 physical powers?" 
 
 " To each of these questions the counsel for the people 
 objected. The objections were sustained, and the defend- 
 ant's counsel excepted. The evidence of the opinion of the 
 witness was clearly inadmissible. It did not involve medical 
 skill or science, nor was it a case for an expert. The jury 
 could judge equally well with the witness, after they were 
 in possession of the facts upon which he must necessarily 
 base his opinion. See, also, Van Zandt vs. Mutual Benefit 
 Life Insurance Co., 55 N. Y., 169 ; Kennedy vs. The People, 
 39 N. Y., 255." 
 
 Nor can the medical witness give his opinion directly 
 upon the issue presented by the case. This is the province 
 
EXPERT TESTIMONY — ITS NATURE AND VALUE. 503 
 
 of the jury ; they alone determine the facts. He may ex- 
 plain facts, but he cannot find them ; they must be found 
 for him or assumed by him. A witness may not be asked 
 whether the Accused was sane or insane at the time when he 
 is alleged to have committed the crime, if there be a conflict 
 as to the facts. He may not be asked whether a testator 
 had capacity to make a will. But a hypothetical case may 
 be put to him, and his opinion asked thereon. The jury 
 will see how far it it corresponds with the case in hand, and 
 therefore, how far their judgment shall be guided by it. 
 
 In Wendell vs. The Mayor of Troy, 39 Barb, 338, Mr. 
 Justice Hogeboom said : 
 
 "The medical testimony as to the injuries likely to be 
 produced under a given state of facts was, I think properly 
 admitted. The witness stated the precise facts on which he 
 based his opinions, and the Court did not withdraw from the 
 jury the right or liberty to consider whether these facts 
 were established by the testimony." People vs. Lake, 12 N. 
 Y., 358 ; Goodrich vs. The People, 3 Park, 622. 
 
 In White vs. Bailey, 10 Michigan, 159, the witness, a doctor 
 after stating that he had attend ed the deceased professionally 
 for some nine or ten years previous to his decease, but who 
 had not seen him for two or three months, was asked this 
 question : 
 
 "From what you saw, what was his (Mudge's) menial 
 capacity?" Question excluded. On appeal, the Court 
 said : 
 
 "The question, we think, was properly excluded. It asked 
 for the doctor's opinion of the mental capacity of the testa- 
 tor some two or three months before he made his will. 
 Mental capacity for what ? To make a will ? For that was 
 the issue. This is the question of law, and not of medical 
 science. It is for the jury, under the instructions of the 
 Court as to what is sufficient mental capacity to make a will, 
 to decide on its existence or non-existence when the will was 
 executed, from the facts testified to by the witnesses, and 
 not from the witness' opinion regarding such facts. The 
 jury, and not the witness, are to draw the conclusion from 
 the facts stated by the witness. The opinion of a physician 
 
504 EXPERT TESTIMONY — ITS NATURE AND VALUE. 
 
 as to the existence of disease, or a particular malady, and 
 its effect upon the mind, would be evidence. But a phy- 
 sician's opinion regarding mental capacity generally, or the 
 mental capacity necessary to make a will, is, in the eye of 
 the law, no better than that of any other person." 
 
 In Shelton vs. The State, 34 Texas, 666, in which a father 
 was indicted for the murder of his child, a medical witness 
 was allowed to testify as to the cause of death of the child, 
 and also whether the neck of the child was broken before 
 or after death. The Court said : "The opinion of a medical 
 man, as to the cause of death of the child, and also as to 
 whether the neck of the child was broken before or after 
 death, was properly admitted by the Court to go to the jury. 
 Indeed, there are mn.ny cases, as in this, where there was no 
 one present at the death but the deceased, unless it was the 
 defendant, and where it might be wholly impossible to proves 
 the cause and manner of death excepting through the aid of 
 science, when, with the aid of the scientific experience of 
 medical men, the whole facts might become as manifest a 
 though rehearsed by an eye-witness." The prisoner was 
 convicted ; but a new trial was granted, because the Court 
 could not see a sufficient intent to kill to make the crime 
 murder in the first degree. This case illustrates the import- 
 ance, as well as the nature, of medical testimody. 
 
 In Woodbury vs. Obear, 7 Gray, 469, a medical witness 
 was asked this question : " Suppose all the facts stated by 
 the several witnesses to be true, was Mr. Woodbury labor- 
 ing underan insane delusion, or was he of an unsound mind ?' 
 Ruled out. Oil appeal, Shaw, C. J., said: 
 
 "We think the question put to Dr. Williams, as an expert, 
 asking his opinion whether, having heard the evidence, he 
 was or was not of opinion that the testator was of sound 
 mind, was not admissible in that form. This would be 
 especially irregular where the evidence is conflicting, be- 
 cause it puts it in the power of the expert to give an opinion 
 upon the credibility of the testimony and truth of the facts, 
 which is purely a question for the jury. And then upon the 
 value and efficacy of the facts and circumstances in his 
 opinion thus proved upon the question of the soundness 
 
EXPERT TESTIMONY — ITS NATURE AND VALUE. 505 
 
 of mind. We think the question as modified by the Court 
 and then admitted was correct, to put the case hypothetic- 
 ally, as thus : If certain facts assumed by the questions to 
 be established by the evidence should be found true by the 
 jury, what would be his opinion upon the facts thus found 
 true, or the question of unsoundness of mind? If, however, 
 the physician has attended the accused, and had frequent 
 opportunities to witness his conduct and converse with him, 
 then he can give an opinion as to his sanity or insanity 
 based upon such observations; and after an opinion has 
 been given, a cross-examination will be allowed upon hypo- 
 thetical questions predicable of the facts then proved in the 
 case, in order to test the correctness of the opinions of the 
 witness." People vs. Lake, 12 N. Y., 358. 
 
 From what has been said, it is obvious that, in order to be 
 an expert in the true sense of the word, the witness must 
 have had experience in the particular science under investi- 
 gation. Mere opportunities for observation are not suffic- 
 ent. He may not have improved the opportunities. He may 
 have considered the profits which should arise from dealing 
 in certain articles, rather than their scientific value. 
 
 In Page vs. Parker, 40 N. H., Rep., 59, a witness was 
 offered to give his opinion as to the quality of soap-stone in 
 the quarry in controversy. He was shown to have been 
 more or less engaged for forty years in quarrying soap- 
 stone ; that he had manufactuied soap-stone into pipe for 
 aqueducts more or less for twenty years, and had visited 
 other quarries. But it did not appear that he had ever de- 
 voted any time or study to an investigation of the composi- 
 tion and characteristics of soap-stone, or made any particular 
 observations on that subject, so as to be better qualified to 
 give an opinion on the scientific question propounded to 
 him than any member of the jury. Held incompetent. The 
 Court, after stating in what cases winesses are allowed to 
 give their opinions, adds: "It must, however, be shown 
 that they are skilled or scientific men, or at least, that they 
 have superior actual skill or scientific knowledge in relation 
 to the question, before their opinions can be competent. 
 
5°6 EXPERT TESTIMONY — ITS NATURE AND VALUE. 
 
 Mere opportunity for observation is not sufficient." i Phil, on 
 Ev. 788, Chap. 10, Sec. 40, and Notes. 
 
 We have thus seen what are the qualifications of medical 
 witnesses and what is the sphere of their duties. It would 
 almost seem as if their testimony should produce more sat- 
 isfactory results, and yet within the last ten years trials have 
 taken place in this and neighboring States in which the 
 medical witnesses did more harm than good — did more to 
 mislead the jury than to instruct them. I need not speak of 
 Schoeppe' scase, the Wharton case, and others a little nearer 
 home. They are all familiar to you. But why does this 
 kind of evidence so frequently bring about unsatisfactory 
 results? We have mentioned incidentally two causes, viz : 
 incapacity and partiality of witnesses — some know no better, 
 and some did not wish to know better. But there are cases 
 wherein skilful and well-meaning men fail to meet the de- 
 mands of the case. It is not because they do not understand 
 the general subject under consideration, not because they 
 are unwilling to do their duty, but because they fail 
 to comprehend the demands of the case upon them; and 
 to apply correctly the knowledge which they possess. This 
 most frequently happens in cases of insanity. Let me illus- 
 trate my meaning by a case. A prisoner is charged with the 
 crime of murder. It is proved that he committed the act 
 which resulted in the death of his victim, and the circum- 
 stances attending the case are such that a jury would infer 
 the intent to kill. He has no refuge except in the plea of 
 insanity. The history of his life is told. All his queer ex- 
 pressions and actions are detailed to the jury, who are asked 
 to acquit the prisoner. A hypothetical case containing the 
 facts which are considered proved in the case is put to the 
 medical witness, and he is asked whether, assuming these 
 facts to be true, he thinks such a person to be insane. What 
 does the law mean by that question? Listen to the charge 
 of the late Benjamin R. Curtis, Justice, in the case of U. S. 
 vs. McGlue, 1 Curtis, Reports, 1. The question there was 
 whether the prisoner had committed the act in a state of 
 drunkenness merely, in which case he would be responsible, 
 or whether he was suffering fiom delirium tremens, in which 
 
EXPERT TESTIMONY — ITS NATURE AND VALUE. 507 
 
 case he would be irresponsible. The learned Judge said: 
 "The next inquiry is, What is meant by insanity? What 
 is it which exempts from punishment because its existence 
 is inconsistent with a criminal intent? Cleaily it is not 
 every kind and degree of insanity which is sufficient. There 
 have been, and probably always are, in the world, instances 
 of men of great general ability, filling, with credit and use- 
 fulness, eminent positions, and sustaining through life, with 
 high honor, the most important civil and social relations, 
 who were, upon some one topic or subject, unquestionably 
 insane. There have been, and undoubtedly always are, in 
 the world, many men whose minds are such, that the con- 
 clusions of their reason, and the results of their judgments, 
 tested by those of men in general, would be far astray from 
 right. There are many men whose passions are so strong, 
 and whose conscience and reason and judgment are so weak 
 or so perverted, that not only particular acts, but the whole 
 course of their lives, may, in some sense, be denominated 
 insane. And there are combinations of these, or some of 
 these deficiencies, or disorders, or perversions, or weak- 
 nesses, or diseases. They are an important, as well as a 
 deeply interesting study, and they find their place in that 
 science which ministers to diseases of the mind, and which, 
 in recent times, has done so much to alleviate and remove 
 some of the deepest distresses of humanity. But the law is 
 not a medical or a metaphysical science. Its search is after 
 those practical rules which may be administered without in- 
 humanity for the security of civil society, by protecting it 
 from crime. And, therefore, it inquires not into the pecu- 
 liar constitution of mind of the accused, or what weaknesses, 
 or even disorders, he was afflicted with, but solely whether 
 he was capable of having, and did have, a criminal intent. 
 If he had, it punishes him ; if not, it holds him dispunish- 
 able — and it applies a test by which the jury is to ascertain 
 whether the accused be so far insane as to be irresponsible. 
 That test is the capacity to distinguish between right and 
 wrong as to the particular act with which the accused is 
 charged. If he understands the nature of his act ; if he 
 knows his act is criminal, and that if he does it he will do 
 
5°8 EXPERT TESTIMONY — ITS NATURE AND VALUF. 
 
 wrong and deserve punishment, then, in the judgment of 
 the law, he has a criminal intent, and is not so far insane as 
 to be exempt from responsibility. On the other hand, if he 
 is under such delusion as not to understand the nature of 
 his act ; or if he has not sufficient memory and reason and 
 judgment to know that he is doing wrong, or not sufficient 
 conscience to discern that his act is criminal and deserving 
 punishment, then he is not responsible." Flanagan vs. The 
 People, 417. Capacity to distinguish rejected. 
 
 This is the question for the jury to decide ; but the jury 
 are not presumed to know enough about insanity to judge 
 correctly in reference to it. They do not understand the 
 evidence. They cannot comprehend its scientific bearings. 
 The aid of medical witness is invoked. He is expected to 
 tell them what ? What his notion of insanity is ? No. He 
 may be one of those people who believe everybody is more 
 or less insane ; that as there are no perfectly sound bodies, but 
 all contain within them the seeds of disease and death, so 
 there are no sound minds. Or he may think that the legal 
 test is not a sound one, and wishes to adopt one more scien- 
 tifically correct, as he thinks. No; he .is expected to use 
 the word insane as the law uses it, and in the same sense. 
 When, therefore, a hypothetical case, fitting as nearly as 
 possible, the case at the bar, is put to him, and he is asked 
 whether the facts, if proved true, indicate insanity, the law 
 means that he shall answer whether the prisoner is insane, 
 in the sense indicated by the charge which I have read. Is 
 insane in the sense that he has not "the capacity to distin- 
 guish between right and wrong, as to the particular act with 
 which the accused is charged ?" If yes, the witness is bound 
 to say so, and thus aid in acquitting the prisoner. But if he 
 is not insane in the sense above expressed, no matter what 
 the witness thinks of him in other respects, he is bound .to 
 say, upon the case put, that he does not regard the prisoner 
 as insane. 
 
 The witness has no right to use the word in any other 
 sense. His duty is to aid the jury in ascertaining the fact 
 whether he is insane in that sense, and in no other. If he 
 does not use the word in the same sense, he misleads the 
 
EXPERT TESTIMONY ITS NATURE AND VALUE. 5°9 
 
 jury and causes them to err. Just here has been the mistake 
 which medical witnesses have so frequently made ; and after 
 the prisoner has been acquitted, have been astonished' at 
 their own acts. And then they talk of the "criminal insane" 
 and "insane criminal." If the medical witnesses would ap- 
 preciate exactly the question which they were called upon 
 to answer, and answer it honestly and conscientiously, much 
 of the confusion which hangs about this subject would be 
 removed. They would not startle at their own conclusions, 
 or aid in securing results which shock the common sense. 
 Let them, before they testify, inquire what the law demands 
 of them, and strive to meet the law's requirements ; and not 
 palm off on the Court and jury what Maudsley thinks, or 
 Ray thinks, or, perhaps, what the witness thinks insanity 
 ought to be. 
 
 But some physicians, we have often heard it said here, 
 urge that in their judgment the legal test of insanity is not 
 scientifically correct, and they cannot adopt it — that they 
 have a better test of their own. If they are unwilling to do 
 what the law requires, thev have an alternative — they need 
 not testify at all. They will not be compelled to give their 
 opinions. The Court does not want their peculiar notion. 
 If the test is not correct, apply to the Legislature to 
 have it changed. But adopting another test is not changing 
 
 it is defeating the law. What would you think of counsel, 
 
 who, disapproving of a law, should advise his clients not 
 according to the law as it is, but as he thought it ought to 
 be? And in case of mishap, of what avail would such an ex- 
 cuse be? And yet that is the position of the medical wit- 
 ness, whose evidence is guided by his own opinion of what 
 insanity ought to be, instead of adopting the test which the 
 law has prescribed. 
 
 From these illustrations and authorities it will appear 
 that the office of medical expert is one of dignity and im- 
 portance, for it relates to questions of medical science and 
 skill. He should be among the best and wisest of his pro- 
 fession. He is sole master of the peculiar field allotted to 
 him, for no other witness in the case can give opinions, and 
 the judge and jury are presumed to be ignorant of the sub- 
 
510 EXPERT TESTIMONY — ITS NATURE AND VALUE. 
 
 jects on which he speaks. They must depend upon him for 
 guidance. If, therefore, he is competent and candid enough 
 toex press correct opinions, and conscientiously guides the 
 jury to correct conclusions, he may be vastly serviceable in 
 the administration of justice. But if expert testimony is not 
 to become a synonym for useless testimony, more care must 
 be exercised on the part of some of those persons who offer 
 themselves as interpreters of evidence. They must be in- 
 terpreters indeed. They must have their opinions first hand. 
 They must, in short, be what they profess to be — skilled 
 witnesses — skilled by experience. 
 
Report of Committee on Intoxi- 
 cating Liquors.* 
 
 The Committee on Intoxications, etc., report as follows: 
 
 I. As to the adulteration of liquors with noxious ingredi- 
 ents, the Committee find that there are diverse opinions in 
 regard to the extent of this practice. Some persons claim 
 that distilled liquors, such as brandy, gin, etc., used in this 
 State, are not adulterated to any serious extent, because 
 such adulteration would not pay; that by the process now in 
 use of manufacturing these liquors, no foreign injurious 
 substance enters into the product ; that the basis of all these 
 liquors is what manufacturers call "high wine;" in other 
 words, common alcohol, which is obtined from Indian corn 
 by a simple and cheap process of distillation, and that this 
 is then reduced, colored, and flavored to resemble brandy, 
 gin, rum, or whiskey, and sold as such ; that the ingredients 
 used to color and flavor these liquors and make them assume 
 the appearance and taste of genuine cognac, gin, etc., are 
 harmless, being such as molasses, burnt sugar, butyric ether, 
 pine-apple ether, etc.; and that the worst which can be said 
 against these adulterations is that they practise a harmless 
 fraud upon the imbiber, while after all the worst thing in 
 these liquors is the alcohol itself. 
 
 Others maintain that much of the beverage which is sold 
 for gin, whiskey, etc., is vile stuff, containing an excess of 
 fusil oil, and flavored and colored with noxious materials, 
 which poison the body and destroy the mind. The truth no 
 doubt lies between these extremes. 
 
 But in regard to wines, beers, etc . and liquors not made 
 in this country, their seems to be no question that injurious 
 adulterations exist to a large extent. Lager beer, which has 
 
 * Made January 14, 1878. 
 
512 INTOXICATING LIQUORS. 
 
 become almost a national drink, and whose consumption 
 has happily buguiled many from indulging in stronger bev- 
 erage, and has therefore worked in the direction of temper- 
 ance, is now largely adulterated with mixtures that are en- 
 lailing upon iheir victims Bright's disease of the kidneys, 
 destruction to the linings of the stomach, etc. Surely so 
 long as persons will drink artificial beverage, be it tea, coffee, 
 lager beer, or what not, it is the duty of the State to recog- 
 nize that fact and institute safeguards to prevent the admix- 
 ture therewith of poisons or noxious ingredients which form 
 no part of the beverage in its purity. It is in this sense that 
 the Committee have embodied the accompanying recom- 
 mendations. 
 
 II. The Committee have not taken sides in the struggle 
 which is now raging over the Excise law. But they believe 
 that some modification should be made in that law in respect 
 to light wines — wines containing but a small percentage of 
 alcohol. As the law now stands, persons who are accus- 
 tomed, say to claret wine for dinner, if they should have oc- 
 casion or be compelled to dine at a restaurant or eating- 
 house, not an inn, tavern, or hotel, would be denied their 
 favorite beverage. The law, to be efficient, needs not expel 
 these wines from such places. 
 
 The Committee therefore make the annexed suggestion in 
 regard to light wines : 
 
 We would recommend the Legislature : 
 
 I. To adopt a standard of purity for all fermented and 
 distilled liquors 
 
 II. To pass an act against adulteration of all such liquors, 
 making it an offence, with suitable penalties, for any person 
 to adulterate with poisonous or deleterious drugs or mix- 
 tures any such liquors intended for beverage; or to bring 
 into the State for sale, or sell, or give away ; or to order, or 
 permit to be brought into the State, to be sold or given 
 away, any such liquors intended as a beverage, knowing or 
 being able to know, with reasonable diligence, that the same 
 are so adulterated. 
 
 III. To provide for the appointment by the Governor, in 
 each of the eight judicial districts, of a person possessing 
 
INTOXICATING LIQUORS. 5 13 
 
 competent knowledge, skill, and experience as an analytical 
 chemist, to inspect and analyze all such liquors as may be 
 brought to him for that purpose, and make a report thereon. 
 He to make in each case, under oath, a true and faith- 
 ful analysis, and report of the results thereof over his signa- 
 ture; giving in detail the ingredients of the composition. 
 Such report and certificate to be, in the absence of other 
 evidence to the contrary, prima facie proof of the matters 
 therein contained in any action or proceeding before a court 
 or magistrate. He to make quarterly reports to the Govern- 
 or, stating the number of analyses he made during the next 
 preceding quarter, and specifying the results of each an- 
 alysis, and naming the sum therefor, if any. These quarterly 
 reports, or copies thereof, to be annually transmitted to the 
 Legislature by the Governor. 
 
 The analytical chemist should be removable by the Gov- 
 ernor for cause, and should receive a fixed salary. 
 
 IV. The act should provide that the mayors and aldermen 
 of cities, and sheriffs of counties, the supervisors of cities and 
 towns, health officers, and the members of Boards of Health 
 of cities and villages, and police officers and constables, 
 especially authorized thereto, shall have the right to enter at 
 any time, in their respective counties, cities, towns, and 
 villages, upon premises where any liquor is manufactured, 
 or sold to be drunk, to ascertain the manner in which the 
 manufacturer or vender thereof conducts his business, and 
 to preserve order ; and shall have the right to take samples 
 for analysis from any liquor made or kept for sale on such 
 premises upon giving a receipt therefor; and the vessel or 
 vessels into which such samples are put shall be sealed on 
 the premises with the seal of the manufacturer, or vender, or 
 his agent, or otherwise securely fastened up until submitted 
 to the proper analytical chemist for analysis. The samples 
 
 to be so submitted within ■ days thereafter, and the 
 
 chemist without delay to proceed to analyze the same and 
 make his report. His certificate of analysis to be delivered 
 to the person by or in whose behalf the sample was sub- 
 mitted for analysis, and legal- proceedings may then be insti- 
 tuted upon such 'certificate within days thereafter. 
 
S!4 INTOXICATING LIIUORS. 
 
 Every such manufacturer, or vender, or agent who shall 
 refuse such samples to any person authorized by or under 
 this act to demand and receive the same, shall be liable to a 
 
 penalty of $ . The city, county, town, or village, where 
 
 the premises are located to pay fur the samples so taken, 
 provided such liquor be found, on analysis, lo be of good 
 quality and free from adulteration. 
 
 V. Any person should have the right to purchase a sample 
 or samples of such liquors, at the customary price, on the 
 premises where the same are publicly kept for sale, and 
 have the same analyzed by the chemist of the district wheie 
 the liquor is offered for sale, on paying him therefor not ex- 
 ceeding $3.00 for each analysis, and receive from him a 
 certificate of the results as above provided, upon which 
 certificate legal proceedings may be instituted. The pur- 
 chaser, on completing the purchase, should forthwitli notify 
 the vender, or his agent selling the article, of his intention 
 to have the same analyzed as aforesaid, and offer then and 
 theie to divide the article inio two parts, each to be marked 
 and sealed with the seal of the vender or his agent, or other- 
 wise securely fastened up ; and shall, if so required, proceed 
 accordingly (otherwise he need not), and deliver one part to 
 the vender or his said agent, and notify him of-the time and 
 place when and where the other part of such sample or 
 samples will be submitted to the analytical chemist for an- 
 alysis; and he shall so submit the same, if he deem proper, 
 to such chemist, who shall divide each into two parts, and 
 seal or otherwise securely fasten up one part and deliver 
 the same to the purchaser on receipt of the sample, or on 
 delivering to him the certificate of the analysis, which part 
 the purchaser shall retain, to be produced in case of any 
 legal proceedings, and the other part shall be analyzed. The 
 certificate given upon such analysis shall be sufficient pre- 
 sumptive evidence of the facts therein contained, unless the 
 defendant requires the chemist to be called, and the part of 
 the article retained by the purchaser to be produced. 
 
 VI. The District Attorneys of the several counties, the 
 Boards of Health of cities and villages, or the person causing 
 the analysis to be made, may institute proceedings for a vio- 
 
INTOXICATING LIQUORS. 515 
 
 lation of this act before any magistrate or tribunal having 
 jurisdiction of violations of the Excise law ; provided, how- 
 ever, if a purchaser institutes such proceedings and fails in 
 the prosecution, he may be adjudged to pay the costs, if it 
 appear that he did not act in good faith. Further provided, 
 that no person shall be liable to be convicted, but shall be 
 discharged, if he shows to the satisfaction of the magistrate 
 or tribunal before whom he is charged that he did not know 
 that the article sold by him was adulterated, and could not 
 with reasonable diligence have obtained that knowledge ; 
 but he shall nevertheless pay the costs of the prosecution, 
 unless he duly notifies the prosecutor that he will admit at 
 the hearing of matters charged against him in the informa- 
 tion and stand upon the above defence. 
 
 VII. Husband and wife, in case either is accused under 
 this act, shall be competent witnesses for and against each 
 other in a prosecution under this act. 
 
 VIII. The magistrate or tribunal before whom a prosecu- 
 tion for adulteration of liquors is pending may, upon the 
 request of either party, direct the chemist of the district to 
 make the analysis of the article complained of, and give a 
 certificate to the court of the results of the analysis, and the 
 expense of the same shall be paid by the one or the other 
 party, as the court may direct. 
 
 IX. Upon conviction of any violation of this act the license 
 of the offender shall be forfeited, and no other shall be 
 issued to him for the period of one year, and the adulterated 
 liquor shall be confiscated and destroyed. 
 
 X. The fines imposed and received under this act to be 
 appropriated toward the expenses of executing the same ; 
 the remainder, if any, to go to the proper authorities for the 
 benefit of the poor. 
 
 XI. Every person who shall forge, or shall utter knowing 
 it to be forged, for the purpose of this act, any certificate of 
 a chemist appointed under the foregoing provisions, shall be 
 guilty of a misdemeanor, punishable as such ; and every per- 
 son who shall wilfully apply to any article of liquor, in any 
 proceeding under this act, a certificate given in relation to 
 any other article, shall be guilty of an offence ana liable to 
 a penalty of $ fine. 
 
5l6 INTOXICATING LIQUORS. 
 
 XII; No manufacturer or vender of liquors lo post or pub- 
 lish, or order or permit to be posted or published, any cer- 
 tificate, or writing purporting to be a certificate, of a chemist 
 appointed under this act, under a penalty of $ 
 
 XIII. Every manufacturer and importer of liquor to be 
 used for beverage shall deliver for analysis to the analytical 
 chemist of the district where the same is made or offered for 
 sale a true sample, under oath, of each given quantity so 
 made or offered for sale ; such sample to be taken and de- 
 livered after the quantity to which it relates is ready for sale, 
 and before any part thereof is sold or delivered. The affidavit 
 to be to the effect that the sample so delivered is a true 
 sample of the whole of such quantity, and that the same was 
 taken after the liquor to which it relates was ready for sale, 
 and before any thereof was sold. 
 
 Every person making a false affidavit in this behalf to be 
 liable to the same penalties as if such affidavit had been 
 made in a judicial proceeding. 
 
 XIV. Wines containing not exceeding fifteen per cent, of 
 their volume of alcohol to be deemed light wines; and they 
 should be classed with ales, beer, cider, etc., for the pur- 
 pose of granting license under the Excise law, or provision 
 should be made for granting special licenses to persons other 
 than to keepers of inns, taverns, and hotels to sell such wines 
 under proper restrictions. 
 
 All which is respectfully submitted. 
 
 [Signed] D. S. Riddle. 
 
 Jacob F. Miller. 
 
 William G. Davies. 
 
 Ed. C. Harwood, M. D. 
 
 E. C. Spitzka. 
 Dated New York, February 6ih 1878. 
 
The Mode of Inflicting The 
 Death Penalty. 
 
 By JOHN H. PACKARD, M. D., of Philadelphia.* 
 
 Much as Christianity and modern civilization have done 
 for human nature, they have not so far refined and purified 
 it as to warrant the abolition of the death penalty for the 
 crime of murder. At least such seems to be the plain infer- 
 ence from the current history of our time. Without dwelling 
 upon the daily reports of violence and ruffianism, certainly 
 not growing less numerous or milder in form, I would men- 
 tion the fact that a London telegram, of March 14th, savs that 
 a bill to abolish capital punishment was, on that day, put on 
 its second reading, in the British House of Commons, and 
 defeated by a vote of 263 to 64. 
 
 Another item, within a day or two, was to the effect that 
 the death penalty was to be restored to the statute books of 
 the State of Iowa, the experiment of dispensing with it hav- 
 ing proved a failure. 
 
 I am well aware that much has been and may be said on 
 what seems to be the humanitarian side of this question, 
 which, indeed, is too large to be entered upon here, even if 
 it came within the purpose of the present paper, or if I felt 
 myself capable of handling it. Let me, however, venture to 
 call attention to the fact that in the Mosaic history the 
 
 * Read before the New York Medico-Legal Society, April 3d, 1878. 
 
Jl8 THE MODE OF INFLICTINC THE DEATH PENALTY. 
 
 Divine edict, "Who so sheddeth man's blood, by man shall 
 his blood be shed," was given as a distinct and separate 
 utterance, anterior to any system of temporary or cere- 
 monial law, and without any hint of limitation by time, or 
 bycircumsiances which might arise in the later history of 
 the race.f 
 
 As matiter of fact, in almost all civilized communities, 
 it ordained that the deliberate taking of human life shall in- 
 volve the forfeiture of the life of the offender ; the object 
 being to prevent crime by the fear of punishment. 
 
 But there are two entirely different standpoints from 
 which to view this matter. One is that taken by the de- 
 graded ruffian, who looks upon law and order as oppressive 
 shackles, to be resisted whenever there is a chance of doing 
 so successfully, — who regards his being as a sort of struggle 
 with society, — and if in this warfare he is brought to the 
 gallows, accepts his defeat as he would the loss of a prize 
 fight. He is overpowered by superior odds,, but not con- 
 quered ; and if he "dies game " he is a hero in the estima- 
 tion of his compeers. The other is the point taken by the 
 moral and self-respecting part of the community ; in this 
 point of view the punishment is in the condemnation — in 
 the ignominy of forfeiture of the right to live. 
 
 These two points, although thus stated separately, are ex- 
 tremes, between which there are various grades; and the 
 phrase, "the fear of punishment," expresses the combination 
 of the two, which operates to preserve the security of life in 
 communities. 
 
 Of course the mere terror of physical death is combined 
 with the double aspect of capital punishment just mentioned 
 to a greater or less degree, in very many minds. In some it 
 would swallow up all considerations of defiance of society, 
 of disgrace, or of distress to relatives, etc. But this is an 
 element which is not, and cannot be, recognized in any legal 
 view of the matter. If it were not so — if the pain of physical 
 
 t A recent number of an English periodical (I regret that its name has es- 
 caped my memory, and that I have failed to find it by such search as my time 
 has permitted) contained a very forcible resume of the existing reasons for 
 the retention of the death penalty. 
 
THE MODE OF INFLICTING THE DEATH PENALTY. 5 19 
 
 death has anything to do with the deterrent effect of capital 
 punishment — then it would be better to restore all the fear- 
 ful list of tortures, burning, breaking on the wheel, and the 
 rest. 
 
 I think it may be stated positively, without fear of contra- 
 diction, that just so far as the physical terrors of execution 
 are enhanced, the moral force of the procedure is weakened. 
 This is true in regard to its effect upon even the lowest and 
 most brutal classes of society. It is the calm, dispassionate, 
 inexorable working of retributive justice which holds them 
 in check, so far as fear of punishment can do so. 
 
 The subject of the modes of carrying out the extreme sen- 
 tence of the law was brought before this Society some years 
 ago by Dr. Alonzo Calkins, in an able paper entitled "Ju- 
 dicial Executions for Capital Crimes." The ground taken 
 by him was adverse to the mode now in use in this country 
 and in Great Britian ; and his forcible exposition of its ob- 
 jectionable features, leaves nothing for me to say in regard 
 to this portion of the topic. His views must be shared by 
 all in whom the finer sentiments of humanity have not been 
 blunted by actual contact with cruelty and vice. 
 
 While, however, I have nothing to say as to the mere process 
 of death by hanging, there are some matters connected with 
 it to which I would allude. 
 
 The strong feeling which exists in many minds against this 
 mode of judicial death often adds to the difficulty of procur- 
 ing convictions, even upon very positive evidences of guilt. 
 It also adds very much to the force of the sympathy which is 
 apt to be developed for criminals under sentence, and in- 
 creases the frequency of pardons, by which the salutary 
 effect of the law is seriously lessened. Under this head may 
 be mentioned the facilitating of the abuse of the pardoning 
 power, for political or private reasons, since this would be 
 less likely to occur if it did not fall in with public sentiment. 
 
 (There is a curious usage in the State of Pennsylvania, 
 and perhaps in other States also, by which, if the Governor 
 in whose term a convicted murderer is sentenced goes out of 
 office without signing the death warrant, his successors like- 
 wise abstain from doing so. A man was recently liberated 
 
520 THE MODE OF INFLICTING THE DEATH PENALTY. 
 
 who was sentenced twenty-six years ago, but the sentence 
 was never carried out for the reason just stated. So far as 
 I can learn, it is a mere usage, without any sanction by legal 
 enactment.) 
 
 Between hanging and other modes of execution at present 
 in use in civilized countries, there is really no choice. They 
 are all alike in affording an opportunity for bravado on the 
 part of the criminal, and in the appearance, at least, of un- 
 seemly violence on the part of the officers of the law. 
 
 The ignominy of death on the gallows has always been 
 regarded as one of its chief terrors ; yet the body only is 
 affected by it, and the stigma is merely conventional. Popular 
 clamor or partisan hatred may condemn a pure-minded pat- 
 riot to this, so-called, shameful ending, and yet succeeding 
 generations will only the more honor and cherish his memory. 
 The infamy comes from the judicial character of the act, 
 from the fact that the man himself, by reason of his crimes, 
 is declared by his fellow-men to be unworthy of existence 
 among them. 
 
 Some of our State Legislatures have followed the example 
 of the British Government in ordaining that all executions 
 shall be carried out in private ; but in many parts of the 
 country the spectacle of a "hanging" is still allowed to have 
 its brutalizing effect upon all who choose to come to see it. 
 
 Within forty-eight hours of the time of writing these lines 
 the telegraph informs us of the hanging of a colored man, 
 for murder, in a town of Tennessee, which was witnessed by 
 ten thousand persons. And in the newspapers of this morn- 
 ing occurs the following items : 
 
 "Gus Johnson was hanged at Atlanta, Ga., yesterday, in 
 the presence of a large crowd, for the murder of a colored 
 ferryman. He showed brutal indifference, confessed that he 
 had committed four murders, and ascended the scaffold with 
 a cigar in his mouth." 
 
 I make no comment upon these two statements, except to 
 record my solemn belief that the mere reading of those few 
 lines which constitute the second one has already sown the 
 seed of evil in the minds of thousands of the young and half 
 educated, all over this country, which will come up with the 
 rest in the great crop of crime. 
 
THE MODE OF INFLICTING THE DEATH PENALTY. 52 1 
 
 But even where executions are supposed to be private, 
 they are so only in name. They are, indeed, carried on 
 within the walls of a prison; but a great many persons man- 
 age to get admission as deputy sheriffs, or on some other 
 pretence, and at every such scene the reporters of the daily 
 press are present in force, as if by right, to vie with each 
 other in giving graphic and— to use the detestable word of 
 the day — "sensational" accounts of the miserable affair. 
 By their agency the public, young and old, far and near, are 
 enabled to gloat over details which cannot but be loathsome 
 to the better part of human nature; which have a fearful 
 fascination for the young and inexperienced, and which un- 
 questionably have been widely influential in promoting crime. 
 
 I appeal to all to whom these words may come, whether 
 they are not conscious of the harmful effects of such reading 
 upon themselves? 
 
 Now, in view of the general admission that the present 
 mode of inflicting the extreme penalty of the law is objec- 
 tionable, an apology can hardly be needed for an attempt to 
 point out a better way. 
 
 What I would suggest is that there should be fitted up, in 
 the jail, a small room, which can be made air-tight. By 
 means of very simple arrangements carbonic oxide can be 
 substituted for the air of the room, and a person confined in 
 it would thus die the easiest and quickest death known to 
 science. He would simply cease to exist. 
 
 A jury should be appointed to identify the convicted per- 
 son . In their presence he should be conducted to the room, 
 and placed in it, entering by a sliding door — of plate glass 
 it may be — protected by netting of iron wire. The process 
 of rendering the air irrespirable should then be begun, and 
 would very soon be completed. In less than ten minutes 
 fresh air might be introduced by opening the slidingdoor 
 and reversing the former process; and the same jury, again 
 indentifying the body, could certify to the fact of the execu- 
 tion having been duly carried out. 
 
 , In 1874 Mr. Coleman Sellers suggested the adoption of 
 this carbonic oxide poisoning as the method of killing the 
 dogs taken up in the City of Philadelphia, and unredeemed; 
 
522 THE MODE OF INFLICTING THE DEATH PENALTY. 
 
 and it has been found to answer the purpose perfectly. By 
 the kindness of Mr. Marett, the Superintendent of the Dog- 
 shelter, I have inspected the process more than once. At 
 my last visit I carefully timed its duration, and found that of 
 forty-three dogs of various sizes intoduced into the room, 
 the air being pure, every one had ceased to breathe three 
 minutes after the gas began to flow. Two dogs, weighing 
 about 45 pounds each, were put in singly, and the time was 
 exactly the same for both — no seconds. 
 
 More exact details of the method can readily be furnished, 
 if desired. It is essentially the same as that within a few 
 years so often adopted by suicides in France. To my own 
 mind it presents many anvantages on the score of humanity, 
 propriety, and efficiency. 
 
 Dogs killed in this way manifest scarcely any evidence of 
 suffering — not more than I have seen in inducing anaesthesia 
 by ether, in other dogs, for the purpose of surgical opera- 
 tions. 
 
 The death would necessarily be private. Probably there 
 would be little, if any, struggling to be witnessed. 
 
 As to the certainty of the extinction of life, there can be 
 no question, for reasons known to every tyro in physiology. 
 
 Between the sickly sentimentality which would spare mer- 
 ciless murderers, and the brutal ferocity which would exult 
 over their dying agonies, there seems to be a just and wise 
 medium, where the law can take its stand, vindicating itself, 
 protecting society, and yet inflicting no needless torture on 
 the unhappy criminal. 
 
 The subject is one which well merits earnest thought, and 
 my only excuse for persuming to deal with it is the duty 
 which lies on every man to contribute his mite to the subdu- 
 ing of the evil that is in the world. 
 
THE RELATION OF LAW AND MEDICINE TO ONE 
 ANOTHER AND TO THE PUBLIC. 
 
 By Cephas Brainard, Esq. 
 
 Proceedings of the New York Medico-Legal Society, Dec. 5th, 1877. Hon. 
 Geo. H. Yeaman, Piesident, in the Chair. 
 
 Two learned professions meet with common objects — the 
 two professions whose daily service comes most nearly home 
 to the business and bosoms of all men in the routine of com- 
 mon life. Surely the object of this association of the two 
 professions is not solely the simple but comparatively selfish 
 one of acquiring a given quantum of knowledge, as the miser 
 accumulates gold. Rather this is a branch or section of the 
 great, the Universal Social Science Association of civilized 
 lands, composed of the members of the two great and learned 
 professions, whose lines of labor most frequently touch each 
 other as regularly pursued. Its past discussions show it to 
 be an advocate of what is sometimes called a Social Science 
 policy. This is well defined in one of the most remarkable 
 of recent books — the letters and other writings of Edward 
 Denison, M. P. He says (p. 206): "It aims at utilizing, for 
 the purposes of imperial, national, municipal, and individ- 
 ual life, the great stores of knowledge in every department 
 of philosophy and-science, which the mental activity of the 
 last half century has created and accumulated, but which 
 have not yet been employed to diminish the suffering and 
 increase the happiness of humanity at large." To this end 
 how advantageous is the calm and dispassionate comparison 
 of views between the two professions meeting in this 
 society. How essential their substantial agreement upon 
 topics common to both, before the great stores of knowledge 
 adverted to by Mr. Denison are really employed to diminish 
 suffering and increase happiness. To be most usefully 
 employed there must be an incorporation of the results of 
 these accumulations in legislative action and in the common 
 
5 2 4 THE RELATION OF LAW AND MEDICINE. 
 
 practices of mankind. The largest possible circulation of 
 the topical papers read here contributes powerfully and 
 directly to the latter result; but only mediately, and I think 
 inconsiderably, to the former. So far as my examination 
 has extended very little has been done or said here looking 
 to practical legislation. Not that I design to suggest that 
 the society engage in the business of procuring legislation 
 generally, though no reason has occurred to me why, within 
 reasonable limits, it might not properly do so. 
 
 The time seems peculiarly favourable for obtaining 
 definite legislative action, guaranteeing these reforms in the 
 law which the great advances in practical knowledge show 
 to be desirable. 
 
 The limitations which some believed were set upon legis- 
 lation, and which hedged about supposed rights, are 
 yielding to the needs of the time. This change in judicial 
 view and rule began some years since, but has recently 
 become a settled principle of judicial action. Perhaps the 
 strongest early manifestation appeared in the police cases as 
 long ago as 1857 {People vs. Draper, 15 N. Y. R , 532), when 
 our police were placed upon a better and more efficient 
 footing. 
 
 It appeared again in 1865, when an attempt was made to 
 overthrow the law which gives to parties whose property is 
 destroyed by mobs a right of action against the municipality 
 where mobs hold sway {Darlington vs. The Mayor, 31 N. Y. R., 
 165). All remember the strenuous opposition, founded on 
 constitutional objections, that was made to the health legis- 
 lation affecting this city {See Metropolitan Board of Health vs. 
 Heister 37 N. Y. R. 661, and kindred cases). Notwithstanding 
 this opposition we have the improved health code — cnttle 
 are no longer driven in large droves through the crowded 
 streets, and slaughter-houses have ceased to infect, infest, 
 and demoralize the town. The demands of the body uf the 
 people for improved modes of travel, as incorp rated in leg- 
 islative action, and sought to be satisfied by capitalists, 
 under legislative permission, are no longer thwarted by 
 claims of supposed piivate right. Such technical claims our 
 courts hold are not to stand in the way of those improve- 
 
THE RELATION OF LAW AND MEDICINE. 525 
 
 ments which the age really requiies (Rapid Transit cases, not 
 yet reported). The disposition manifested by our Court of 
 Appeals appears in the highest court of the nation. The 
 legislative wisdom of some States provided, as was thought, 
 for a better use of railruads in the interests of all parties. 
 Individual right again raised constitutional ojections, and 
 the Supreme Court in the Granger cases (94 U. S. R., 113- 
 187) recognized and sustained the right of the body of the 
 people to some consideration in the administration of quasi 
 public trusts. 
 
 Some of these decisions may yet be subjected to criticism, 
 but they will undoubtedly all stand the test of time and trial, 
 and they show that the current of judicial ruling in this 
 country is contrary to the technical spirit, the over squeam- 
 ish regard for supposed private right which lies at the basis 
 of the Wynehamer case, here (3 Kernans R., 278) and Alkyns 
 ■vs. Randolph (31 Vermont R., 226) in the State of Vermont, 
 which are the very quintessence of the chronic conservatism 
 of the past. 
 
 It is doubtless safe to assume that this is not formed as a 
 total abstinence society ; that it was not organized for the 
 purpose of joining in any temperance crusade. An exami- 
 nation of your records will show, however, that a considerable 
 proportion of the papers read here have treated of the effects 
 of the use of alcohol upon men. A cursory examination of 
 these papers has not disclosed to me any observations upon 
 their use from the philanthropic stand-point, or any appeal 
 to the class of considerations most in use among so-called 
 reformers. The treatment has been wholly scientific or pro- 
 fessional. The essays treat of "alcoholism," " metho- 
 mania," and "dypsomania" as diseases, as forms of insanity. 
 
 Of '' methomania" one of your essayists says that it "is 
 a manifestation of brain disease ; and that brain disease 
 involves general impairment of the mental faculties, and 
 consequently a form of insanity. Any man drunk and 
 absent from business that he knows to be important, com- 
 mitting a crime in that condition, should be treated not as a 
 criminal but as a maniac." 
 
 Another of your essayists says : " In a criminal case the 
 
52(> THE RELATION OF LAW AND MEDICINE, 
 
 question must be carefully examined ; for if the guilty party 
 has had attacks of delerium tremens, if it is ascertained that 
 he is a dypsomaniac, he ought to be confined in an asylum 
 as any other insane ; and no matter how well he may appear 
 to be while confined, it is not till after a longtime, probably 
 ten years, before he can renounce spirits, or that he may be 
 set at liberty without danger to himself or to society. No 
 matter how much he might promise, swear, that he would 
 not touch another glass, the inclination before that time is 
 stronger than he — he cannot resist it as long as he can pro- 
 cure it." 
 
 The same essayist sets forth the results — near and more 
 remote — of the use of alcohol as follows : 
 
 "Now, in ninety cases out of a hundred, drunkenness is 
 first contracted by imitation and politeness, for it is con- 
 sidered very impolite by some individuals to refuse to drink 
 when invited to 'join in.' It soon becomes a habit, and then 
 constitutes one of the most incurable diseases. Every addi- 
 tional glass is one more stitch in that other Nessus tunic called 
 chronic alcoholism, from which, when once entangled in its 
 folds, it is impossible to come out, and Hercules-like, the 
 drunkard dies in the most wretched agony. 
 
 " The disease it not even ended by his death, but its influ- 
 ence extends from generation to generation until the extinc- 
 tion of his race. Morel reports many examples of this fact. 
 According to him the sequence is as follows: 
 
 " First generation ; Immorality, depravity, excess in the 
 use of alcoholic liquors, moral debasement. 
 
 "Second generation ; Hereditary drunkenness, paroxysms 
 of mania, general paralysis. 
 
 "Third generation : Sobriety, hypochondria, melancholy, 
 systematic ideas of being persecuted, homicidal tendency. 
 
 "Fourth generation : Intelligence slightly developed, first 
 accession of mania at sixteen years of age, stupidity, subse- 
 quent idiocy, and propably extinction of the family." 
 
 But quotations need dot be multiplied. Putting aside all 
 moral questions, all considerations philanthropic in their 
 character, it has been shown by the essays before this socie- 
 ty, as it has been shown elsewhere, that certain uses of 
 
THE RELATION OF LAW AND MEDICINE. 527 
 
 alcohol touch the civil administration and the practice of the 
 law at a great variety of points, but strikingly at the follow- 
 ing : 
 
 1. As to testamentary capacity. 
 
 2. As to fitness to give evidence. 
 
 3. As to competency to contract obligations of a binding 
 character. 
 
 4. As to general capacity for wise business management. 
 
 5. As to criminal tendencies. 
 
 6. As to responsibility for acts of a criminal character. 
 
 7. As productive of poverty and pauperism. 
 
 And as to all this matter the medical profession has 
 brought from its storehouse of facts and experience a vast 
 array of information, and resting upon this a mass of profes- 
 sional conclusion which cannot be controverted or denied. 
 
 It may well be assumed that their call now is to the legal 
 profession — is for the payment of that debt which Lord 
 Bacon declares every one of its votaries owes to ir, viz., for 
 the intervention of the lawyer in aid of every proper move- 
 ment for the modification or the cure of so great an evil. 
 We are ready to take a position in regard to proposed 
 changes affecting the minutest details of the daily practice; 
 we are not slow to discuss the question whether a summons 
 signed by an attorney, or a writ in the name of the people, 
 is the proper and convenient mode for instituting a suit, and 
 rightly so. If any craft known to civilized society, through- 
 out its long and continually brightening history, has been 
 ready with all its powers, natural and acquired, to serve the 
 cause of progress, that craft is the law ; and ready it has 
 ever been to enter that service with neither staff, nor scrip, 
 nor money in its purse from those it thus serves. Surely the 
 law should not be behindhand in efforts to secure a mitiga- 
 tion, if not the eradication, of this curse upon civil and 
 governmental administration. Not as reformers, not as 
 temperance men in the technical and narrow sense in which 
 these words are used in every-day life, but upon the same 
 principle, and in the same way, and with the same order with 
 which we enter upon the advocacy of any great reform in 
 civil affairs. How many times have we all draughted and 
 
528 THE RELATION OF LAW AND MEDICINE. 
 
 followed chem through the legislature at our own charges ; 
 how many times in ihe interest of society, but at our own 
 cost, have we all taken part in efforts to procure what we 
 thought good legislation or to defeat bad ? 
 
 Yet here is a practice which in its effects touches the 
 lawyer more nearly than the member of any other profession 
 save that of medicine. That profession has brought here 
 the wealth of its learning and laid it before the society ; it 
 has done at least a part of its duty; but I have not observed 
 in any of our papers from my own profession any sugges- 
 tions for a legislative scheme— to cure the evil, to remove 
 the wrung as touching the administration of the law. It 
 seems to me this can properly be expecteed, not in any 
 radical or ultra reformatory shape, but as digested by the 
 calm reflection matured by the large wisdom and experiencer 
 and sustained and approved by what Mr. Choate, in perhaps 
 the best of his public addresses, termed 'the conservative 
 force of the American Bar." 
 
 It is not for me to do this, but it may not be improper 
 to suggest the question whether any idea has yet been 
 presented better than that which gives the law an executory 
 principle, by conferring a right of action in favor of the per- 
 son injured by the acts or neglects of the drunkard against 
 the seller of the liquor used by him. May I also suggest a 
 radical inquiry as to the difference discoverable upon princi- 
 ples of statesmanship and costitutional law between the 
 common bar-room and the gambling-hell, or between the 
 sale of liquor in the former and the sale of prussic acid and 
 arsenic at the drug-store. And if no difference can be dis- 
 covered, why not properly the same kind of legislation be 
 applicable to all. 
 
 Some suggestions made here, looking to the subject of 
 ventilation as applied to the public school buildings, indicate 
 the prevalence of a sentiment among the members of the 
 society which perhaps justifies, the additional observations 
 which I desire to make. 
 
 The members of the medical profession, more than any 
 other calling, are brought into immediate contact with the 
 poorer classes. Sore sickness is incident to every family, rich 
 
THE RELATION. OF LAW AND MEDICINE. 529 
 
 or poor, and perhaps especially incident to the destitute and 
 ignorant ; and in the ministration of the "doctor" it is a 
 peculiar glory of the profession that none are neglected. 
 On such occasions the physician sees the best side of human 
 nature, the best feelings of the heart are aroused, and it is 
 easy to infer from the condition of the mind, as exhibited by 
 the lowest classes in their afflictions, the capacity for 
 improvement and progress of which they are capable. No 
 one doubts the civilizing effects of pure air, and tidy, even if 
 not artistic, surroundings. 
 
 If any proof were necessary, the extraordinary experiment 
 of Miss Octavia Hill — in which she was assisted notably by 
 Mr. Ruskin — which resulted in the purification of some of 
 the worst and mo^t debased dwellings in London, and in the 
 real civilization of their inhabitants, and which iransformed 
 those dwellings into interest-paying investments, when 
 before they had been a source of loss, is sufficient proof. 
 But while it seems to me that the medical profession, in and 
 of itself, cannot accomplish the needed reforms in the crowd- 
 ed tenements, it can do so with the help of the lawyer if he 
 will wisely use his means for influencing and framing legis- 
 lation, his opportunities of touching public sentiment at io 
 many points, and especially the frequent calls upon him by 
 capitalists for advice in regard to the mode of treating prop- 
 erty and disposing of in vestments. The two professions 
 cooperating can accomplish almost any desirable result in 
 this direction. Is it not then proper matter for consideration, 
 how much by legislation and how much by operation upon 
 public sentiment can be done toward improving the dwellings 
 of the poorest, and thus facilitating the practice of the 
 physician among the destitute classes, and rendering his 
 service more useful ? Attention has not been given to the 
 management of the commonest tenement houses as it should 
 be ; effort is not made to keep them cleanly and to keep 
 their inhabitants in the same condition. How much can 
 the Medico-Legal Society do in this direction ? 
 
 But there is another matter connected with this suggestion; 
 as to which there should be legislation at once. 
 
 In the opening of the upper part of the ciiy for dwellings 
 
530 THE RELATION OF LAW AND MEDICINE. 
 
 by the building of the elevated railroads, and in the deser- 
 tion of a section of the city about the Battery by the more 
 profitable classes of business, a field is open for a reform 
 which it is desirable should be accomplished. 
 
 No houses are now built of a convenient character which 
 are within the reach of single families of laborers and 
 artisans of the better class ; if they are now to live anywhere 
 in the city, it must be in tenements more or less crowded. 
 There is no reason why the sections of the city which I have 
 specified should not be redistributed or relaid out, so that 
 small houses can be conveniently built, having abundance of 
 light and air, which, in their rentals, would be within reach 
 of the average mechanic for his single family. The advantage 
 to civilization, to good neighborhood, to health, to every 
 department of social economy, secured by such a reform 
 would be incalculable. 
 
 Let another matter be brought to your attention. It is, 
 perhaps, mainly to be treated by public sentiment ; but in 
 that regard public sentiment should be educated. The 
 police courts and the police justices' courts being civic 
 institutions, bring what we call the State into immediate con- 
 tact with the largest bod}' of our people — those the least edu- 
 cated — those who know least of the principles upon which a 
 State is organized. Their knowledge of the law, of its adminis- 
 tration and its practice, is derived wholly from these courts. 
 If they are to respect the institutions. of the country, they are 
 to learn to respect them from the administration of the law 
 as seen by them. They never see, except at rare intervals 
 and in a casual way, the higher courts of the country. They 
 have no more idea of the appearance of the Supreme Court 
 of the United States, of the dignity of its justices, the simple 
 majesty of its proceedings, the solemnity of its debates, and 
 the integrity which characterizes it, than they have of the 
 local disadvantages as a place of human habitation of the 
 moon. All they know of the law, they know from the police 
 and civil justice, and from the lawyer who practices before 
 him. 
 
 Then I say with the educated classes — especially with the 
 members of the two professions, one engaged in the admin- 
 
THE RELATION OF LAW AND MEDICINE. 531 
 
 istration of the law, and the other dealing with these poorer 
 ciasses to such a vast extent under circumstances where 
 they are most susceptible — there should be a decided, a pos- 
 itive, a persistent effort to elevate the condition of these 
 courts. I make no criticism upon any man now presiding in 
 them, but I do say they should be conducted with a dignity 
 with a sobriety, with a steady reference to the best principles 
 of the law and to the best principle's of administration such 
 as is not found in all of them at the present time. The judge 
 upon the bench should understand that he represents the 
 State in one of its highest and most important forms of legal 
 administration. 
 
 The controversies of the poor about a few dollars are more 
 important to them than the controversies of the rich over 
 their thousands, and their controversies should be treated 
 with the same consideration, with the same gravity with 
 which the Chief Justice of the Supreme Court treats a con- 
 troversy before him. If this were done, these courts as a 
 means of elevating society, and of the improving morals of 
 keeping peace, would be of incalculable value. Our duty 
 here is, by the creation and cultivation of a proper public 
 sentiment, to so elevate and so ennoble them that they be- 
 come constant and healthful teachers. A justice in one of 
 these courts whose conduct is what I have indicated it should 
 be, ought to be looked upon by society as one of its greatest 
 "benefactors. He should not be spoken of with contempt. 
 His education, his surroundings, should be such that he can 
 be welcomed to any society which he desires to enter. The 
 terms "civil" and "police" justice should not be upon the 
 lips of certain of our people terms of contempt, but they 
 should be an epithet of honour, and when we come to that 
 we shall have made a long step onward in the elevation of 
 man. 
 
 This is a little out of the ordinary line of your essays ; it 
 will not, however, do hurt, possibly it may be of some little 
 good. 
 
 Law and medicine, in their administration, deal with indi- 
 viduals. The lawyer acquires a profound appreciation of the 
 value of individual and personal right. The physician has 
 
53 2 THE RELATION OF LAW AND MEDICINE. 
 
 an exalted opinion of the individual man, not only as pos- 
 sessed of mental capacity — of an immortal soul— but as 
 possessed of a body "fearfully and wonderfully made," 
 which is the subject of the pfofoundest study on the part of 
 those who desire to be worthy of their calling. It is the val- 
 uation in both professions of the individual man which gives 
 life and force and moral elevation to their activity, which in- 
 vokes the exercise of their best faculties. What I have said 
 touches the value of the individual and goes to its just 
 appreciation, and I would fain see realized by all the force 
 of the promise and declaration of God himself when He says 
 "I will make a man more precious than fine gold ; even a 
 man than the golden wedge of Ophir."* 
 
 * Read before the Medico-Legal Society, Dec. 5th, 1877. 
 
Constitution and By-Laws 
 
 OF 
 
 THE MEDICO-LEGAL SOCIETY 
 
 OF THE CITY OF NEW YORK. 
 
 CONSTITUTION. 
 
 June ist, 1886. 
 
 ARTICLE I. 
 
 Section i. This Association shall be known as The Medico- 
 Legal Society. 
 
 ARTICLE II. 
 
 Sec. 1. There shall be three classes of members in this 
 association, viz : Active, Corresponding and Honorary. 
 
 Sec. 2. Any person in good standing in either the medi- 
 cal, chemical, or legal professions and scientists, recom- 
 mended by any member of either of said professions, respec- 
 tively, after consideration of the proposal for membership 
 by the executive committee, if recommended by the execu- 
 tive committee, shall be eligible to Active Membership. 
 
 Sec. 3.. Any member of the medical, chemical, or legal 
 professions and scientists, residing outside the city of New 
 York, and recommended by the executive committee, shall 
 be eligible to Corresponding Membership. 
 
 Sec. 4 Members of the medical and legal professions, 
 and scientists of recognized eminence, shall be eligible to 
 Honorary Membership, if recommended by the executive 
 committee. Any such person so elected, who shall not 
 attend the stated meetings of this association, may be re- 
 moved from such membership upon the recommendation of 
 the executive committee. Such roll of honorary members 
 shall not contain more than forty names, of persons so selec- 
 ted, and the number shall not include more than twenty from 
 either of said professions of medicine and chemistry, or law. 
 
 Sec ,5. The society may remove any honorary member 
 by a two-thirds vote. 
 
 ARTICLE III. 
 
 RIGHTS' AND PRIVILEGES. 
 
 Sec. i. Active members only whose dues shall have been 
 paid for the year preceding, shall ■ be eligible to nomination 
 
534 CONSTITUTION AND BYLAWS OF 
 
 or election to office, or entitled to vote. All other rights and 
 privileges shall be equally enjoyed at the meetings of this 
 association. 
 
 Sec. 2. Honorary and corresponding members may have 
 the printed transactions of the association delivered to them 
 upon payment of the sum of one-half the annual dues' of 
 active members. 
 
 ARTICLE IV. 
 
 OFFICERS. 
 
 Sec i. The officers of this society shall be a President, 
 two Vice-Presidents, styled first and second respectively, a 
 Secretary, an Assistant Secretary, a Corresponding Secre- 
 tary, a Treasurer, a Librarian, a Chemist, a Curator and 
 Pathologist, and six Trustees. 
 
 ARTICLE V. 
 
 DUTIES AND PRIVILEGES OF OFFICERS. 
 
 Sec*, i. The President, or in his absence the vice-presi- 
 dents in their order, or in their absence a chairman pro tem- 
 pore, shall pieside at all meetings, and such presiding officer 
 shall perform all the duties connected with such office while 
 presiding in the meetings of this society. 
 
 Sec. 2. The Secretary shall keep the minutes of the pro- 
 ceedings of the meetings of the society, and of the executive 
 committee ; and, at the stated meetings of the society, he 
 shall collect and give receipts fur the fees and dues of mem- 
 bers, in the absence of the treasurer ; and he shall pay over 
 the sums so collected to the treasurer, as soon thereafter as 
 practicable, giving the name or names of those having so 
 paid, therewith, to said treasurer, and take a receipt from 
 the treasurer therefor; and, in addition thereto, he shall 
 notify officers and members of committees of their election 
 or appointment, and members-elect of their election ; certify 
 official acts, and procure and sign with the president certifi- 
 cates of membership, and deliver the same to new members ; 
 and perform such other duties as are usually connected with 
 the office of secretary. 
 
 Sec. 3. The Assistant Secretary shall keep a list of the 
 active members, issue the notices of the meetings, and in the 
 absence of the secretary, perform his duties as hereinbefore 
 specified. 
 
 Sec. 4. The Corresponding Secretary shall conduct all 
 the correspondence of the society except that with active 
 members. 
 
 Sec. 5. The Treasurer shall attend at all meetings to col- 
 lect the fees and dues of members and give receipt therefor, 
 personally, or by the aid of the secretary as hereinbefore 
 specified ; and he shall have charge of all moneys so collect- 
 
THE MEDICO LEGAL SOCIETY. 535 
 
 ed, belonging to the society, and deposit the same in the 
 name of this society, pay all expenses incurred by the society, 
 by and witli the consent of the executive committee ; and he 
 shall present an account of the moneys so collected and de- 
 posited, and expended, with the items of deposits, or of 
 expenditure, for the montli preceding, at every meeting of 
 the executive committee ; and he shall report the number of 
 members in the society, up to the date of said report, with 
 the number of those in arrears, with the respective sums due 
 from each, at least once in three months, or oftener if so re- 
 quired by said executive committee ; and upon the last stated 
 meeting of the society prior to the election of officers, he 
 shall make his annual report to the society at such meeting ; 
 and state the amount of money on hand at the commencement 
 of said year ; the amount received for dues from members, 
 and for initiation fees from members elect, during said 
 pL'iiod ; and the names of persons who had been so elected ; 
 who had failed to pay such fees, and dues ; and the names of 
 members who are then in arrears for dues, with the amount 
 so due from them respectively, at the date of snid report ; 
 and he shall add therto such recommendations in regard to 
 improvements which can be made to facilitate the transac- 
 tion of the business of his office as lie may deem beneficial. 
 
 Sec. 6. The ^Librarian shall preserve, and hold accessible 
 to members of the society, all its written and printed contri- 
 butions contained in the library, and report the condition 
 thereof at the annual meeting of the society, prior to the 
 meeting for the general election. 
 
 Sec. 7. The Chemist shall have charge of all the business 
 of the society relating to chemistry ; and he shall make his 
 report upon the matters of such description which have been 
 brought before the society during the year, with his recom- 
 mendations in regard thereto. 
 
 Sec. 8. The Curator and Pathologist shall have charge of 
 all pathological specimens offered to the society, and prepare 
 the same for exhibition ; and upon the direction of the 
 society, or of the executive committee, he shall take proper 
 means to preserve such specimens as possess Medico-Legal 
 merit, for the benefit of the society, and make an annual re- 
 port in regard thereio. 
 
 Sec. 9. The Trustees of the society shall receive all pro- 
 perty belonging to the society, and deliver the same to the 
 proper officer of the society assigned to have charge of the 
 same ; and said trustees shall exerc ise a general supervision 
 over such propertv, for the preservation of the same, and 
 make and retain an inventory thereof, for the use of the 
 soctiey ; and at the annual meeting said trustees shall make 
 
53<> CONSTITUTION AND BY-LAWS OF 
 
 their annual report to the society to show the condition and 
 value of such property, and the increase or decrease in such 
 value, together with a description thereof, and as to the value 
 thereof at the last annual report, and the value of all addi- 
 tions thereto, with a description thereof, since such prior 
 annual report. 
 
 Sec. 10. It shall be the duty of everv officer or trustee of 
 the society to attend at every meeting of the society and o 
 the executive committee ; and any officer or trustee who 
 neglects to so attend, and who shall absent himself from two 
 of such consecutive meetings, without sending a notice in 
 writing of his intended absence, shall be deemed to have 
 vacated his office thereby, arid a notice of such vacancy shall 
 be theieupon published, at said set ond meeting ; and the said 
 office shall be filled by election at the ne*xt stated meeting, 
 for the balance of the term of such officer, unless such'officer 
 is excused by the society or executive committee. 
 ARTICLE VI. 
 
 THE EXECUTIVE COMMITTEE. 
 
 Sec i. The officers and trustees of the society shall con- 
 stitute an Executive Committee, which shall meet at least 
 once in each month, prior to stated meetings of the society, 
 to consider and transact such business as shall be transmit- 
 ted to them by the society. 
 
 Sec. 2. The ex-presidents of the society, while they attend 
 the meetitigs, and remain iu good standing as active mem- 
 bers of the society, shall be ex-officio members of the execu- 
 tive committee. 
 
 ARTICLE VII. 
 
 PERMANENT COMMISSION. 
 
 Sec. 1. The organization of a Permanent Commission 
 may be provided for and continued by the society. 
 ARTICLE VIII. 
 
 TRUSTEES. 
 
 Sec. 1. There shall be six Trustees chosen equally from 
 the medical profession or chemists, and the legal profession, 
 two of whom shall be chosen annually for three years ; and 
 in the case of a vacancy occurring, the same shall be filled 
 for the unexpired term by an election from the profession to 
 which said office belonged. 
 
 ARTICLE IX. 
 
 ELECTIONS. 
 
 Sec. r. All elections shall be determined by a majority of 
 the votes cast for the office to be filled thereby. 
 
 Sec. 2. Elections of new members shall be decided by re- 
 quiring at least two-thirds of the votes of members present at 
 
MEDICO-LEGAL SOCIETY. 537 
 
 a stated meeting, voting by ballot, in favor of such election, 
 unless the society order otherwise 
 
 ARTICLE X. 
 
 AMENDMENTS — HOW MADE. 
 
 Sec. 1. Amendments may be made to this Constitution, 
 after having been proposed in writing, at least, one month 
 prior to the stated meeting when the same shall be called 
 before the society to be voted upon, after the same shall have 
 been recommended by the executive committee. A majority 
 vote of the members present shall be necessary for the adop- 
 tion of such amendment. 
 
 ARTICLE XI 
 
 . BY-LAWS. 
 
 Sec. i. By laws for the regulation of the business of the 
 society may be prepared and adopted by the society. 
 
 BY-LAWS. 
 
 ARTICLE I. 
 meetings and quorum. 
 
 Section i. Stated meetings of the Society shall be. held 
 once in each month, except in July and August, on such day 
 as may be designated by order of the society or executive 
 committee ; and special meetings at the time fixed by vote or 
 by the executive. committee. 
 
 Sec. 2. Stated meetings shall begin at eight o'clock, p.m. 
 or as soon thereafter as a quorum is assembled; and special 
 meetings at the hour designated in the call therefor. 
 
 Sec. 3. Ten active members shall constitute a quorum for 
 business before the society. 
 
 Sec. 4. Five members of the executive committee shall 
 constitute a quorum for business before such committee. 
 ARTICLE II. 
 admission of members. 
 
 Sec. 1. The names of candidates shall first be referred to 
 the executive committee. If reported upon favorably by said 
 committee, they shall be balloted for, at the time the report 
 is made, or at some subsequent stated meeting. Two-thirds 
 of the votes cast shall be necessary for an election to mem- 
 bership. 
 
 Sec. 2. Every active member elect shall sign the Consti- 
 tution, or a formal acceptance of membership, within three 
 
538 CONSTITUTION AND BY-LAWS OF 
 
 months after notice of his election ; and in default thereof 
 said election shall be deemed void. 
 
 ARTICLE III. 
 
 FINANCIAL AND ETHICAL REQUIREMENTS, 
 AND VIOLATIONS THEREOF. 
 
 Sec. i. Each active member shall pay an initiation fee of 
 five dollars, which, with signing the Constitution, or accept- 
 ance of membership, shall entitle him to a certificate of 
 membership, of the society. 
 
 Sec. 2. There will be an annual assessment of, and mem- 
 bers will be required to pay, four dollars, unless otherwise 
 regulated by the society. But any member may commute 
 such annual assessment by the payment of thirty-five dollars 
 at one time, which shall exempt him from annual assess- 
 ments for life, although he shall still be liable for his quota 
 as a member for any extraordinary assessments which the so- 
 ciety may think proper to order. 
 
 Sec. 3. Any active member who shall neglect to pay his 
 dues or assessments for six months, shall be notified of the 
 fact by the treasurer ; and should he for three months after 
 such notice neglect or refuse to pay, a penalty of ten per 
 cent, shall be added to his said dues, and the same be collec- 
 ted therewith : and upon his continued refusal to so pay, his 
 name shall be stricken from the roll of members of the society 
 in one month thereafter. 
 
 Sec. 4 . The ethical rules of the society shall be the same as 
 those governing the medical and legal professions generally. 
 
 Sec. 5. Charges against members shall be made in writing, 
 enclosed in a sealed envelope, and referred, to the executive 
 committee under such seal. 
 
 Sec. 6. In case of charges being so made, and the com- 
 mittee shall think that the charges are of so grave a nature 
 as to require an answer thereto, copies of the same, under 
 seal, shall be served upon the accused, and he shall be cited 
 to appear before the said executive committee, and required 
 to answer the said charges, at a meeting to be held not less 
 than fifteen days from the time of serving such notice ; and 
 such member may be suspended from his rights as a member, 
 pending such examination by said executive committee. 
 
 Sec 7. After due examination, the said committee may 
 acquit, admonish, or recommend the expulsion of such delin- 
 quent ; or it may suspend him from a participation of the 
 privileges of the society for a period of not exceeding three 
 months, thereupon. 
 
 Sec 8. If the committee shall think the member ought to 
 be expelled from the society, it shall be its duty to report 
 
THE MEDICO-LEGAL SOCIETY. 539 
 
 the charges, and the evidence supporting the same, to the 
 society, for action thereupon. 
 
 ARTICLE IV. 
 
 THE PUBLISHING COMMITTEE. 
 
 Sec i. All papers read before the society shall be referred 
 to the Committee on Publication, consisting of the president, 
 secretary, and librarian, for consideration as to their merits 
 for the advancement of Medico-Legal science, with power to 
 publish the same, if they shall consider the same proper, for 
 the information of the members of the society. 
 
 ARTICLE V. 
 
 Sec. 1. The annual meeting for the election of officers and 
 trustees shall be held in December in each year, andtheelec- 
 tion shall be made by ballot at the said December meeting, 
 nominations having been made therefor at the preceding 
 stated meeting, as follows : The Assistant Secretary shall, 
 at least two weeks before the annual meeting, forward by 
 mail to every member entitled to vote and not in arrears for 
 dues, a membership list with a list of members, and a 
 ticket printed in blank for the various offices to be 
 filled, also a blank envelope addressed to the Assistant 
 Secretary. 
 
 Members entitled to vote shall fill up the blank ballot and 
 return the same to the Assistant Secretary by mail or other- 
 wise, under seal. 
 
 At the annual meeting the Assistant Secretary shall deliver 
 the said envelopes to three tellers to be named by the Pres- 
 ident, who shall proceed at once in the presence of the 
 Society, to count the votes of the said ballots and announce 
 the result to the Society. Each election list and envelope 
 shall be separately numbered and a duplicate list kept by 
 the Assistant Secretary. 
 
 In case no choice is made by the said vote, counted and 
 announce d by the tellers for any office, the same shall be 
 filled by a vote by the Society by ballot. 
 
 Any member shall be entitled to receive his election 
 list and vote at any time before the polls are actually closed, 
 on payment of all arrears of dues, if in good standing. 
 
 Sec. 2. Vacancies can be filled at any time by a special 
 election, at any stated meeting, nominations having been 
 made and announced in the same manner as required for 
 annual elections. 
 
 Sec. 3. At the meeting next succeeding the annual meet- 
 ing, no business shall be transacted except the reading of 
 the minutes, the report of the executive committee, the elec- 
 tion of proposed members, and the addresses of the retiring 
 
54° CONSTITUTION AND BY-LAWS 
 
 and newly-elected presidents, unless the society shall other- 
 wise order. 
 
 ARTICLE VI. 
 
 ORDER OF BUSINESS. 
 
 Sec. i. At the meetings of the society the following shall 
 be the order of business : 
 
 i. Calling the meeting to order. 
 
 2. Reading the minutes. 
 
 3. Payment of dues, fees, and fines. 
 
 4. Reports of Executive Committee, and election of pro- 
 
 posed members 
 
 5. Reports of Special Committees. 
 
 6. Reports of Permanent Commission. 
 
 7. Reading the Paper of the Evening. 
 H. New business. 
 
 9. Unfinished business. 
 10. Adjournment. 
 
 Sec. 2. ■ In relation to the order in which the business shall 
 be conducted in the society, the following shall be the order 
 of precedence in which the same shall be presented by the 
 president for consideration : 
 
 1. Motion to adjourn. 
 
 2. Motion to lay on the table. 
 
 3 Motion for the previous question. 
 
 4. Motion to postpone to a day certain. 
 
 5. Motion to send to a committee. 
 
 6. Motion to amend. 
 
 7. Motion to postpone indefinitely. 
 
 8. Motion for special business. 
 
 9. Motion concerning questions of order. 
 10. Motion to suspend the rules. 
 
 Sec. 3. The said respective motions shall be submitted 
 for the consideration of the society, and each shall have pre- 
 cedence before all motions submitted prior thereto, in the 
 numerical order hereinbefore specified ; and the same shall 
 be considered in their proper order, in the manner usual to 
 deliberative societies. 
 
 ARTICLE VII. 
 
 SUSPENDING AND AMENDING BY-LAWS. 
 
 Sec. i. Two-thirds of all the votes cast at a stated meet- 
 ing of the society shall be sufficient to suspend the By-Laws. 
 
 Sec. 2. For their amendment the same rule and same vote 
 shall be required as for amendments to the Constitution. 
 
THE PERMANENT COMMISSION. 
 
 The society, at a meeting held Februrary 16, 1876, unani- 
 mously adopted the following resolution, establishing The 
 Permanent Commission : 
 
 RESOLUTION. 
 
 Sec. 1. There shall be established a Permanent Commis- 
 sion consisting of the president and six members, to be 
 elected by the society, upon the recommendation of the 
 executive committee, chosen equally from the Medical and 
 Legal Professions. At the first eleotion two members shall 
 be chosen for three years, two for two years, and two for 
 one year; and thereafter two members annually for the term 
 of three years. 
 
 Sec. 2. The Permanent Commission is charged with the 
 duty of receiving all cases, questions, or demands for advice 
 that may arise between the regular meetings of the society, 
 and of acting upon them as speedily as possible. 
 
 Sec. 3. Five members shall constitute a quorum ; and a 
 majority of those present shall decide upon what report or 
 answer to make to cases, questions, or demands submitted. 
 
 Sec. 4. Cases, questions, or demands shall be addressed 
 to the president of the society, who shall thereupon call the 
 commission together as soon as practicable. 
 
 Sec. 5. The permanent commission shall report as soon 
 as practicable, directly to the person, officer, or authority 
 making a demand or submitting a case or question, and also 
 to the society at its next ensuing meeting. 
 
 Sec. 6. The report or opinion of the Commission shall 
 not bind the socieiy, but are subject, by a vote of the society, 
 to be either rejected, modified, or confirmed. 
 
 Sec. 7. The Commission shall elect their own chairman 
 and secretary ; and the secretary shall keep a record of the 
 proceedings of the Commission. 
 
542 MEDICO-LEGAL SOCIETY. 
 
 OFFICERS FOR 1882. 
 
 President, 
 CLARK BELL. 
 1st Vice-President, 2nd Vice-President, 
 
 CHAS. A. LEALE, M. D. D. S. RIDDLE, Esq. 
 
 Secretary, Assistant Secretary, 
 
 G. W. WELLS, M. D. CHAS. P. BULL, Esq. 
 
 Corresponding Secretary, Chemist, 
 
 JEAN F. CHAUVEAU, M. D. CHAS. A. DOREMUS, M. 
 
 Treasurer, Librarian, 
 
 E. C. HARWOOD, M. D. R. S. GUERNSEY, Esq. 
 
 Curator and Pathologist, 
 W. R. BIRDSALL, M. D. 
 Trustees, 
 MEYER S. ISAACS, Esq., W. A. HAMMOND, M. D., 
 
 A. G. HULL, Esq., • LEWIS R. SAYRE, M. D., 
 
 WM. G. DAVIES, Esq., E. H. M. SELL, M. D. 
 
 Permanent Commission of the Medico-Legal Society, 
 CLARK BELL, Esq., Chaikman, £x-officio. 
 WOOSTER BEACH, M. D., AUSTIN ABBOTT, Esq., 
 
 R. J. O'SULLIVAN, M. D., GEO. H. YEAMAN, Esq., 
 
 E. C. SPITZKA, M. D., JACOB F. MILLER, Esq. 
 
 OFFICERS FOR 1883. 
 
 President, 
 
 CLARK BELL, Esq. 
 
 1st Vice-President, 2nd Vice-President, 
 
 Prof. R. OGDEN DOREMUS. Hon. DELANO C. CALVIN. 
 
 Secretary, Assistant Secretary, 
 
 LEICESTER P. HOLME, Esq. GILBERT R. HAWES, Esq. 
 
 Corresponding Secretary, Chemist, . 
 
 MORRIS ELLINGER, Esq. Prof. CHAS. A. DOREMUS. 
 
 Treasurer, Curator and Pathologist, 
 
 JACOB SHRADY, Esq. ANDREW H. SMITH, M. D. 
 
 Librarian, 
 R. S. GUERNSEY, Esq. 
 Trustees, 
 B. A. WILLIS, Esq. Prof L. A. SAYRE, 
 
 Judge M. S. ISAACS, Prof. W. A. HAON, 
 
 W. G. DAVIES, Esq., E. H. M. SELL, M. D. 
 
 Permanent Commission of the Medico- Legal Society, 
 CLARK BELL, Chairman. 
 Hon. A.G. HULL, M. H. HENRY, M. D., 
 
 Hon. GEORGE H. YEAMAN, WOOSTER BEACH, M. D., 
 
 AUSTIN ABBOTT, Esq., R. J. O'SULLIVAN, M. D. 
 
OFFICERS. 543 
 
 OFFICERS FOR 1884. , 
 
 President, 
 CLARK BELL. 
 1st Vice-President, 2nd Vice-President, 
 
 Prof. R. OGDEN DOREMUS. Hon. DELANO C. CALVIN. 
 
 Secretary, Assistant Secretary, 
 
 LEICESTER. P. HOLME, Esq. J. E. McINTYRE, Esq. 
 
 Corresponding Secretary, Chemist, 
 
 MORRIS ELLINGER, Esq. Prof. CHAS. A. DOREMUS. 
 
 Treasurer, Curator and Pathologist, 
 
 A. S. HAMERSLEY, Jr. , Esq. ANDREW H. SMITH M. D. 
 
 Librarian, 
 R. S. GUERNSEY, Esq. 
 Trustees, 
 B. A. WILLIS Esq., J. C. THOMAS, M. D., 
 
 RICHARD B. KIMBALL, Prof. W. A. HAMMOND, 
 
 W. G. DAVIE S, Esq., E. H. M. SELL, M. D. 
 
 Permanent Commission of the Medico- Legal Society, 
 CLARK BELL, Esq., Chairman. 
 Hon. A. G. HULL, WOOSTER BEACH, M. D., 
 
 Hon. GEORGE H. YEAMAN, R. J. 0"SULLIVAN, M. D., 
 
 AUSTIN ABBOTT, Esq., JNO. M. CARNOCHAN, M. D. 
 
 OFFICERS FOR 1885. 
 
 President, 
 R. OGDEN DOREMUS, M. D. 
 1st Vice-President, 2nd Vice-President, 
 
 CLARK BELL, Esq. DELANO C. CALVIN, Esq. 
 
 Secretary, Assistant Secretary, 
 
 LEICESTER HOLME, Esq. J. E. McINTYRE, Esq. 
 
 Corresponding Secretary, Chemist, 
 
 MORRIS ELLINGER, Esq. CHAS. A. DOREMUS, M. D. 
 
 Treasnrer, Curator and Pathologist, 
 
 J. A. IRWIN, M. D. ANDREW H. SMITH, M. D. 
 
 Librarian, 
 M. J. B. MESSEMER, M. D. 
 Trustees, 
 B. A. WILLIS, Esq., J. C. THOMAS, M. D., 
 
 RICHARD B. KIMBALL, Esq., EDWARD BRADLEY, M. D., 
 W. G. DAVIES, Esq., E. H. M. SELL, M. D. 
 
 Permanent Commission of the Medico-Legal Society , 
 JNO. M. CARNOCHAN, Chairman. 
 R. O. DOREMUS, M. D., FORDYCE BARKER, M. D., 
 
 Hon. GEO. H. YEAMAN, DAVID DUDLEY FIELD, Esq., 
 
 A. G. HULL, Esq. 
 
544 
 
 MEDICO-LEGAL SOCIETY 
 
 OFFICERS FOR 1886. 
 
 President: 
 DR. ISAAC LEWIS PEET, LL. D. 
 
 1st Vice-President: 
 CLARK BELL, ESQ. 
 
 Secretary: 
 ALBERT BACH, ESQ. 
 
 Corresponding Secretary : 
 MORRIS ELLINGER, ESQ. 
 
 Treasurer: 
 SIMEON N. LEO, M. D. 
 
 Librarian: 
 CHAS. F. STILLMAN, M. D. 
 
 id Vice-President: 
 ANDREW H. SMITH, M. D. 
 
 Assistant Secretary : 
 ARTHUR G BUTl'S, ESQ. 
 
 Chemist: 
 CHAS. A. DOREMUS, M. D. 
 
 Curator and Pathologist: 
 E. A. M. SELL, M. D. 
 
 Assistant Librarian: 
 APPLETON MORGAN, ESQ. 
 
 Trustees: 
 RICHARD B. KIMBALL, ESQ. CHARLES MILNE, M. D. 
 
 W. G. DAVIES, ESQ. J. M. B. MESSEMER, M. D. 
 
 ROGER FOSTER, ESQ. 
 
 Permanent Commission of the Medico- Legal Society: 
 JNO. M. CARNOCHAN, M. D., Chairman. 
 B. A. WILLIS, ESQ. FOKDYCE BARKER, M. D. 
 
 STEPHEN SMITH, M. D. DAVID DUDLEY FIELD, ESQ. 
 
 HONORARY AND CORRESPONDING MEMBERS. 
 
 JUNE IO, 1886. 
 
 Honorary, 
 
 John C. Bucknill, M. D., 
 
 London, England. 
 Ernest Chaude, Esq., 
 
 Paris, France. 
 Prof. D. Hack Tuke, M. D., 
 
 London, England. 
 Frank H. Hamilton, M. D., 
 
 New York. 
 Fordyce Barker, M. D., 
 
 New York. 
 Hon. Chas. P. Daly, 
 
 New York. 
 
 Prof. R. von Kraff-Ebing, 
 
 Gratz, Austria. 
 Henry Maudsley, M. D., 
 
 London. 
 Prof. Dr. J. Maschka, 
 
 Prague, Bohemia. 
 Sir James Fitzjames Stephen, 
 
 London. 
 Hon. Noah Davis, 
 
 New York. 
 Francis Wharton, LL. D. , 
 
 Philadelphia. 
 
CORRESPONDING MEMBERS, 
 Correspotiding. 
 
 545 
 
 Prof. Augustin Andrade, M. D. , 
 
 City of Mexico. 
 John Abercrombie, M. D., 
 
 London. 
 Julius Althaus, M. D., 
 
 London. 
 Prof. Dr. Benj. Ball, 
 
 Paris, France. 
 Hon. Gunning S. Bedford, 
 
 New York. 
 Prof. C. M. Brosius, M. D., 
 
 Berndorf, Germany. 
 A. N. Bell, M. D., 
 
 New York. 
 G. E. Bentzen, M. D., 
 
 Christiania , Norway. 
 Prof. Leonardi Bianchi, 
 
 Naples, Italy. 
 Prof. Dr. Serafino Biffi, 
 
 Milan, Italy. 
 Hon. Geo. B. Bradley, 
 
 Corning, N. Y. 
 E. Blanche, M. D., 
 
 Paris. 
 *R. P. Brown, M. D., 
 
 Addison, N. Y. 
 Sir. J. Chrichton Brown, 
 
 London. 
 Jose M. Bandera, M. D., 
 
 City of Mexico. 
 
 T. R. Buckham, M. D., 
 
 Flint, Mich. 
 Henry Buist, Esq, 
 
 Charleston, S. C. 
 Prof. G. Buonomo, 
 
 Naples, Italy. 
 A. L.Carroll, M. D., 
 
 New Brighton, S. I. 
 
 Prof. Charpentier, 
 
 Paris. 
 Prof. Stanford E. Chaille, 
 
 New Orleans, La. 
 
 Senor Don Manuel Contreras, 
 
 City of Mexico . 
 
 Hon.S. 8. Cox, 
 
 U. S. Minister to Turkey, 
 
 Constantinople. 
 
 Henry Contagne, M. D., 
 
 Lyons, France. 
 T. de Musgrave Clay, M. D., 
 
 Pau, France. 
 T. S. Clouston, M. D., 
 
 Edinburgh, Scotland. 
 
 C. J. Cullingworth, M. D., 
 
 Manchester, England. 
 John Curwen, M. D., 
 
 Warren, Pa. 
 T. D. Crothers, M. D., 
 
 Hartford, Conn. 
 Prof. R. H. Chittenden, 
 
 New Haven, Conn. 
 N. R. Davis, M. D., 
 
 • Chicago, 111. 
 
 H. E. Desrosiers, M. D., 
 
 Montreal, Canada. 
 F. W. Draper, M. D., 
 
 36 Worcester street, Boston. 
 Prof. Dr. Geo. Dragondorf, 
 
 Dorpat, Russia. 
 Dominick Daly, Esq., 
 
 Birmingham, England. 
 Dr. De Jong, 
 
 Amsterdam, Holland. 
 Victor Desguin, M. D., 
 
 Antwerp, Beigium. 
 Leon De Rode, M. D., 
 
 Louvaiij, Belgium. 
 
 * Le Grand Du Saulle, M. D., 
 
 Paris. 
 Dr. Pliny Earle, 
 
 Northampton, Mass. 
 Prof. J. J. Elwell, 
 
 Cleveland, Ohio. 
 Prof. M. G. Elzey, 
 
 Washington, D. C. 
 
 Prof. Albrecht Erlenmeyer, 
 
 Berndorf, Germany. 
 M. D. Ewell, M. D., 
 
 Chicago, 111. 
 Dr. Landon B. Edwards, 
 
 Richmond, Va. 
 Simon Fitch, M. D., 
 
 Halifax, N. S. 
 Dr. Enrique A. Frimont, 
 
 Ozuluama, Mexico. 
 Prof. E. Ferri, 
 
 Sienne, Italy. 
 Prof. Ach. Foville, M. D., 
 
 Paris. 
 Prof. Dr. Furstner, 
 
 Heidelberg, Germany. 
 Th. Gallard, M. D. , 
 
 Paris, France. 
 James A. Gray, M. D., 
 
 Atlanta, Ga. 
 Prof. R. Garofolo, 
 
 Naples, Italy. 
 
546 
 
 MEDICO-LEGAL SOCIETY 
 
 * Gen'l Procurator, Dr. Julius Glaser, 
 
 Vienna, Austria. 
 W. R. Gowers, M. D., 
 
 London. 
 Prof. Matthew Hay, 
 
 Aberdeen, Scotland. 
 J. L. Hanna, Esq., . 
 
 Baltimore, Md. 
 *Geo. L. Harrison, Esq., 
 
 Philadelphia. 
 Prof. Dr. F. von Holtzendorf, 
 
 Munich, Bavaria. 
 Ernest Hart, M. D., 
 
 London. 
 Prof. H . Heiberg, 
 
 Christiania, Norway. 
 Prof. A. W. Hoffman, 
 
 Berlin, Germany. 
 Dr. Gershoni H. Hill, 
 
 Independence, Iowa. 
 Jabez Hogg, M. D., 
 
 London. 
 Prof. E. Horsford, 
 
 Cambridge, Mass. 
 Prof. Hoffman, 
 
 Gratz, Austria. 
 C. H. Hughes, M. D., 
 
 St. Louis, Mo. 
 Prof. H. Aubrey Husband, 
 
 Edinburgh, Scotland. 
 *B. C. Ingels, M. D., 
 
 Ohent, Belgium. 
 W. W. Ireland, M. D., 
 
 Edinburgh, Scotland. 
 
 * Hon. Frederick Kapp, 
 
 Berlin, Prussia. 
 Prof. Axel. Key, 
 
 Stockholm, Sweden. 
 Prof. Dr. Herman KornfeM, 
 
 Grotkau, Silesia. 
 Prof. Dr. A. LaCassagne, 
 
 Lyons, France. 
 Prof. Henry M. Lyman, 
 
 Chicago, 111. 
 Henry Leffman, M. D., 
 
 Philadelphia. 
 Joaquin G. Leberdo, M. D., 
 
 Havana, Cuba. 
 Dr. L. Lewin, 
 
 Berlin, Germany. 
 Prof. Max Leidsdorf, 
 
 Vienna, Austria. 
 Prof. J. Lehmann, 
 
 Copenhagen, Denmark. 
 
 Corresponding, 
 
 Dr. Souza Lima, 
 
 Rio Janeiro, Brazil. 
 Brewer Mattocks, M. D., 
 
 St. Paul, Minn. 
 Hon. Guy H. McMaster, 
 
 Bath, N. Y. 
 Jules Morel, M. D , 
 
 Ghent, Belgium. 
 Prof. A. Motet, 
 
 Paris, France. 
 Prof. Dr. Mierzejewski, 
 
 St. Petersburg, Russia. 
 Prof. Dr. L. Meyer, 
 
 Gottingen, Germany. 
 Prof. R. Otto, 
 
 Berlin, Germany. 
 Ed. M. Perez, M. 1)., 
 
 Buenos Ayres, S. A.- 
 G. VarianPoore, M. U. . 
 
 London, Kngland. 
 John Dixon Mann, M. D., 
 
 Manchester, England. 
 Prof. John M. Packard, 
 
 Philadelphia. 
 Joseph Parrish, M. D., 
 
 Burlington, N. J. 
 Dr. J. A. Peeters, 
 
 Gheel, Belgium. 
 Dr. Louis Penard, 
 
 Versailles, France. 
 Augustus J. Pepper, M. D., 
 
 London. 
 Prof. F. Pollock, 
 
 London. 
 S. D. Presby, M. D., 
 
 Taunton, Mass. 
 Dr. John H. Rauch, 
 
 Springfield, III. 
 Prof. Roman Ramirez, M. D., 
 
 City of Mexico. 
 Dr. Ramaer, 
 
 The Hague, Holland. 
 Prof. John J. Reese, 
 
 Philadelphia, Pa. 
 Prof. Dr. V. Reubold, 
 
 Wurzberg, Germany. 
 Prof. Dr. Ludwig Schlager, 
 
 Vienna, Austria. 
 *Gen. Staats Anwalt Schwarze, 
 
 Dresden, Saxony. 
 G. E. Shuttleworth, M. D., 
 
 London. 
 Prof. Thomas Stevenson, 
 
 London . 
 
CORRESPONDING MEMBERS. 
 Corresponding 
 
 547 
 
 W. H. O. Sankey, M. D., 
 Baschurch, N. Shrewsbury, England. 
 Geo. H. Savage, M. D., 
 
 Bethlem Hospital, London. 
 W. G. Stevenson, M« D., 
 
 Poughkeepsie, N. Y. 
 H. R. Storer, M. D., 
 
 Newport, R. I. 
 *Prof. Dr. Axel Jaderholm, 
 
 Stockholm, Sweden. 
 Prof. Arrigio Tamassia, 
 
 Padova, Italy. 
 Prof. Augusto Tamburini, 
 
 Turin, Italy. 
 C. Meymott Tidy, M. D. , 
 
 -- London. 
 
 Geo. P. Tucker, M. D., 
 
 Sidney, Australia. 
 Dr. Rafael Ulicia, 
 
 Madrid, Spain. 
 
 O. W. Wight, Esq., M. D., 
 
 Detroit, Mich 
 Prof. Dr. Wilhelm Emil Wahlberg, 
 
 Vienna, Austria. 
 F. Winsor, M. D., 
 
 Winchester, Mass. 
 Prof. T. G. Wormley, M. D., 
 
 Philadelphia. 
 Prof. Dr. L. Wille, 
 
 Basle, Switzerland. 
 Dr. M. von Buri, 
 
 Leipzig, Germany. 
 Ely Vander Warker, M. D., 
 
 Syracuse, N. Y. 
 Forbes Winslow, M. D., 
 
 London. 
 William C. Wile, M. D., 
 
 Sandy Hook, Conn. 
 
 * Deceased. 
 
 Executive Committee. 
 
 Consists of the Officers of the Society and its Ex-Presidents, who are 
 Ex-Officio members. 
 
 - Library Committee. 
 Clark Bell, Esq., Chairman. 
 R. S. Guernsey, Esq., David Dudley Field, Esq., Judge W. H. Arnoux, 
 W. J. Morton, M. D., J. M. Carnochan, M. D., Fordyce Barker, M. D., 
 • Appleton Morgan, Esq. 
 
5 4 8 
 
 MEDICO LEGAL SOCIETY. 
 
 ACTIVE MEMBERS 
 
 Dec. 31, 1885. 
 
 Adams, John J., Esq. 
 Allison, Chas. R., Esq. 
 Andrews, W. S., Esq. 
 Abbott, Austin, Esq. 
 Averill, H. F. , Esq. 
 Arnoux, Judge, Win. H. 
 Allen, Henry C, Esq. 
 Augustine, Clark B., Esq. 
 Birdsall, W. R., Dr. 
 Bell, Clark, Esq. 
 Bennett, Alice, M. D. 
 Beach, Judge, Miles. 
 Bull, Chas. P., Esq. 
 Bradley, Ed., Dr. 
 Barker, Fordyce, Dr. 
 Briggs, D. Clark, Esq. 
 Bruno, R. M., Esq. 
 Bach, Albert, Esq. 
 Bergen, John H., Esq. 
 Baker, John F. , Esq. 
 Bradner, N. R., M. D. 
 Brown, Daniel, M. D. 
 Buck, Jerome, Esq. 
 Busteed, Richard W., Esq. 
 Busteed, Richard W., Jr., Esq. 
 Butts, A. 0., Esq. 
 Bronson. R. O. , M. D. 
 Cauldwell, J. M., M. D. 
 Craig, James, Dr. 
 Cook, S. G., Dr. 
 Conway, J. R., Dr. 
 Compton, A. T., Esq. 
 Calvin, Judge, D. C. 
 Conant, Geo. S., M. D. 
 Chadsey, A. J., Dr. 
 Clark. Lester W., Esq. 
 *Coughlin, John D., Esq. 
 *Corkhill, Geo. B., Esq. 
 Carnochan, John M., M. D. 
 Coe, H.C., M. D. 
 Crane, Albert, Esq. 
 Clarke, S. T., M. D. 
 Christenson, J. S., M. D. 
 Crittenden, F. E., M. D. 
 Cameron, James C, M. D. 
 Crookshank, R. Percy, M. D. 
 Davis, Noah, Judge. 
 Donlin, P. E., Dr. 
 Dorn, J. H., Dr. 
 Davies, W. G., Esq. 
 Doremus, Chas. A., M. D. 
 Daly, Judge, C. A. 
 
 Davis, Edwin G., Esq. 
 Denhard, C. E., Dr. 
 Doremus, R. O., Prof. 
 Dunphy, J. F. , Dr. 
 Del-Monte, Leonardo. Esq. 
 Dupre, Ovide, Esq. 
 Dana, C. L., Dr. 
 Dickerson, E. N., Esq. 
 Dwyer, John, M. D. 
 Donahue, Judge. Charles, 
 Drake, N. A., M. D. 
 Ellinger, M., Esq. 
 Elmer, A. D., Dr. 
 Eidenbenz, Anton, Dr. 
 Etheridge, F., Esq. 
 Elridge, G. K , Esq. 
 Fisher, L. , Dr. 
 Farnham H. P., Dr. 
 Furman, Guido, Dr. 
 Finnecane, Ed. M., M. D. 
 Frednch, J., Dr. 
 Farrington, J. O., Dr. 
 Foster, James P., Esq. 
 Field, David Dudley, Esq. 
 Fleming, W. M. , Dr. 
 Frauenstein, G. , Dr. 
 Fairfield, Samuel E., Esq. 
 Fellows, Jno. R., Esq. 
 Fischer, Chas. S. , Dr. 
 Fuller, Robert M. , Dr. 
 Findley, Wm. L. , Esq. 
 Ferris, Floyd, Esq. 
 Fanning, James O., Esq. 
 Foster, Roger, Esq. 
 Fine, Christopher, Esq. 
 Fernandez, A. M. , M. D. 
 Fletcher, W. B., M. D. 
 Gunning, J. H., M. D. 
 Gerry, E. T. , Esq. 
 Guernsey, R. S., Esq. 
 Grant, Gab., Dr. 
 Gilbert, H. S., M. D. 
 Garrison, C. G., M. D. 
 Grube, C. H., M. D. 
 Garrish, J. P., M. D. 
 Holme, Leicester, Esq. 
 Henna, J. J., Dr. 
 Hawes, Judge, G. P; 
 Henessey, G., Dr. 
 Hepburn, S. , Jr. . Esq. 
 Hammersly, A. S., Esq. 
 Hatch, Edward S., Esq. 
 
ACTIVE MEMBERS. 
 
 549 
 
 Bull, A. G., Esq. 
 Hardy, W. L., Dr. 
 Hayes, Daniel P. , Esq. 
 Howard, John C. . Dr. 
 Hawes, Gilbert K., Esq. 
 Horwitz, Olto, Esq. 
 Holcombe, Wm. F., Dr. 
 Hyatt, JudgeS. Hurdett, 
 Hughes, Gen. Charles, 
 Hakes, Harry, Esq. 
 Heitzmann, Charles, M. D. 
 Isaacs, M. S., Judge. 
 Ingraham, Geo. L., Judge. 
 Irwin, J. A., M. D, 
 Ingram, Frank H., M. D 
 Johnston, J. G., Dr. 
 Joachimson, Judge, P. J. 
 Judson, Chas. N., Esq. 
 Jelliffe, Sain. G., Esq. 
 Johnson, H. A., Esq. 
 Jones, Joseph, M. D. 
 Jones, M. L., Esq. 
 Knox, T. C, Dr. 
 Kimball, R. B., Esq. 
 Keliogg. O. H., M. D. 
 Kellogg. T. H., Dr. 
 Kohne, Sjlomon, Esq. 
 Keiley, Wm. S., Esq, 
 Kelly, H. J., M. D. 
 Kane, Wm. J, 
 Lutkins, A. A., Dr. 
 Lochner, J., Dr. 
 l.yon, ( k H., Esq. 
 Lowey, Benno, Esq. 
 Lewis, J. R., Esq. 
 l.eo, S. N., Dr. 
 Lewis, J. B. , Dr. 
 Lyons, Fred A. , Dr. 
 Little, Robert F., Esq. 
 Levy, Jefferson M., Esq. 
 I.avelle, Francis, Esq, 
 Lightfoot, A. R., Esq. 
 Latimore, L. A., M. D. 
 Lewis. W. J., M. D. 
 Lambert, John, M. D. 
 Moore, Geo. E., M. D. 
 Miller, J. F., Esq. 
 Miller, M, N , Dr. 
 McLeod, S. B. W., Dr. 
 Morton, G. W., Esq. 
 Matthews, D., Dr. 
 Mes-emer, M. J. B., Dr. 
 McLaury, W. M., Dr. 
 McDowell, T. H., Di. 
 jyjcCleery, Mary J , Dr. 
 jyjott, A. B., Prof. 
 Mann, W. J., Fsq. 
 jjclntyre, J. E., Esq. 
 
 Mann, E. C, M. D. 
 
 Marsh, Luther R., Esq. 
 
 MacDonald, A. E., M. D. 
 
 Milue, Chas.,M. D. 
 
 Merrill, E. U„ Esq. 
 
 Morgan, Appleton, Esq. 
 
 McAdam, Judge, David. 
 
 Morton, W. J., M. D. 
 
 Mott, H. A., Jr., Dr. 
 
 Messiter, Geo. N., Esq. 
 
 McAdoo, K. M., M. D. 
 
 Mackenzie, Thomas, Esq. 
 
 McEwen, R. C. , M. D. 
 
 McCowen, Jennie, M. D. 
 
 McGuire, Edward J., Esq. 
 
 Newman, W. A., Dr. 
 
 Nugent, Fred F., Esq. 
 
 Noble, C. W., Dr. 
 
 North, Prof. John. 
 
 Nelson, Homer A., Esq. 
 
 O'Neil, E. D., Dr. 
 
 O'Sullivan, R. J., Dr. 
 
 U'Dowd, F., Esq. 
 'O'Dea, J. J., Dr. 
 
 Otterburg, Judge, Marcus. 
 
 Uppenheimer. H. S.. M. D, 
 
 Ogston, Frank G, M. D. 
 
 Parsons, R. L., Dr. 
 
 Pomeroy, O. D. , Dr. 
 
 Preterre. A. P. , Dr. 
 Perry, Albertis, Esq. 
 Pratt, Judge, Calvin E. • 
 Palmer, G. W., Esq 
 Peet, Isaac Lewis, Dr. 
 Pomeroy, Hamilton, Dr. 
 Palmer, B. W., Dr. 
 Page, Washington E., Esq. 
 Pape, A. E., Esq. 
 Phcebus, Geo. R., Esq. 
 Pennington, A. Sterling, Esq. 
 Quinn, Dennis, Esq. 
 Richardson, H. L. , M. D. 
 Riddle, D. S., Esq. 
 Randall, S. H., Esq. 
 Rust, C. D., Esq. 
 Riley, H. A., Esq. 
 Russell, Ira, N. Dr. 
 Shrady, John, Dr. 
 Sell. E. H. M., Dr. 
 Sheppard, H., Dr. 
 Sterne, Simon, Esq. 
 Sultan, Simon, Esq. 
 Satterlee, Leroy F., Dr. 
 Sedgwick, Judge, Jno. 
 Stillman, Chas. F., M. D. 
 Speir, Judge, G. M. 
 Sussdorff, G. E., Dr. 
 Smith, Mubbard, Esq. 
 
550 
 
 MEDICO-LEGAL SOCIETY. 
 
 Smith, Stephen, Prof, 
 fcmith, Kelson, Esq. 
 Smedlev, Fred. G. , Esq. 
 Skiff, George B., M. D. 
 Smith, Andrew It., Dr. 
 Stiies, Jos. A., Dr. 
 bheridan, Judge, James B. 
 Stiles, Henry K., "vl. D. 
 Schatz, Adrian E., M. D. 
 Sh.irkey. M. 1'., Esq. 
 Shepard, E. F., Esq. 
 Southard, M. J., Esq. 
 Stadler, L. C, M. D. 
 Sjwards, Samuel D. , Esq. 
 Shaw, A. D., M. D. 
 Tucker, C. P., Dr. 
 Trull, W. C, Esq. 
 Turrell, S. A.. Esq. 
 Tenney, D., Esq. 
 Taylor, John A., Esq. 
 Thomas, J. C, Dr. 
 Tauzky, K., Dr. 
 Tourtellot, L. A., M. D. 
 Ullman, H. Charles, Esq. 
 
 Valentine, Ferd. C., M. D. 
 Vilns, Henry L., Esq. 
 Van Vorst, Fred. H ,*Esq. 
 Von Klein, Carl II., M. D. 
 Vandenburgh, F. P., M. D. 
 Watson, J. H., Esq. 
 White, F. C, "Esq. 
 Weisse, F. C, Dr. 
 "Willis, li A., Esq. 
 Wight, J. S., M. D. 
 Whaley, Wm., Esq. 
 Weisman, F. H., Esq. 
 Wakeman, T. B., Esq. 
 Wright, C. I'., Esq. 
 •Williams, Isaiah, Esq. 
 Williams, Arthur D., Esq. 
 Wightman, F. B., Esq. 
 Warner, F. M., M. D. 
 Wainwright, W. A. M., M. D. 
 Wilkins, Prof. Geo. 
 Veaman, Hon. Geo. H. 
 Townsend, Jojin D., Esq. 
 Tuthill, J. Y., Dr. 
 
INDEX. 
 
 PAGE. 
 
 Adulteration of Milk 22 
 
 Beard, Geo. M. 
 
 New Theory of Trance 315 
 
 Portrait and Sketch 315 
 
 Bell, Clark, 
 
 Valedictory Address 1 51 
 
 Portrait, of. ...facing title page..... 
 
 Sketch of 1 
 
 Brainard. Cephas, 
 
 The Relation of Law and Medicine . - 523 
 Bell, A. N. 
 
 Report of Committee on Milk 228 
 
 School Room Poisoning 249 
 
 Sanitation of Schools 459 
 
 Beach, Judge W. A. 
 
 Portrait of and Sketch 440 
 
 Beck, Prof- T. R. 
 
 Portrait of and Sketch 97 
 
 Carroll. Alfred L. 
 
 Plea of Insanity 387 
 
 Committee on School R<>om Poisoning 249 
 
 Adulteration of Milk 226 
 
 Sanitation in Public Schools 450 
 
 Intoxicating Liquors 511 
 
 Charities and Corrections, by S. A. Rab- 
 
 borg 403 
 
 Conolly, John, 
 
 Portrait and Sketch 362 
 
 Contents, Table of 
 
 Diagnosis of ' Hanging by Ambrose 
 
 Tardleu 40 
 
 Daly, Charles P. 
 
 Portrait and Sketch of 160 
 
 Doremus, R. O- 
 
 Milk in its Medico-Legal A spect. . .222-228 
 Death Penalty, Mode of Inflicting, by 
 
 John H. Packard 517 
 
 Davies, Wm G. 
 
 Mysterious Disappearances 229 
 
 Presumptions of Death 229 
 
 Intoxicating Liquors 511 
 
 Portrait and Sketch 268 
 
 Ellinger, Morris. 
 
 Moral Responsibility 441 
 
 Epilepsy with Mania, by A. O. Kellogg, 161 
 Expert Testimony, by Jacob Miller 493 
 
 PAGE. 
 
 Finnell, T. C 228 
 
 Fithian, Freeman J 
 
 Guernsey R S. 
 
 Suicide— Penal Laws of 109, 228, 255, 459 
 
 Garrish, Dr..... .'. 261 
 
 Hamilton, Frank H. 
 
 Malpractice in Surgery 97 
 
 Loss of Consciou-nes 206 
 
 School Room Poisoni g 167 
 
 Valedictory 460 
 
 Hammond, Wm. A 269 
 
 Railway Injuries to Spine 
 
 Human Testimony and Trance 315 
 
 Intoxicating Liquors. 
 
 $ Report of Committee 51 1 
 
 1 ndex 
 
 Kellog, A. O. 
 
 Case of Waltz 161 
 
 Legal Responsibility, by Jas. J. O'Dea. 1 
 
 Life Insurance ana Suicide 109 
 
 Loss of Consciousness, by F. H. Ham- 
 ilton 206 
 
 Monomania and Testamentary Capac- 
 ity, by Edward Patterson 13 
 
 Malpractice in Surgery, by Frank H. 
 
 Hamilton 97 
 
 Medico-Legal Society Library 153 
 
 Memory, Loss of 206 
 
 Milk in its Medico Legal Aspects 222 
 
 Mysterious Disappearances, by Wm. G, 
 
 Davies 229 
 
 Morgan Appleton 255 363 
 
 Mcllvaine, R. R 228, 263 
 
 Moreau, Morris 265 
 
 Moral Responsibility, by Morns Ellen- 
 
 ger 441 
 
 Mental Responsibility, by E. C. Mann, 477 
 
 Mann, E, C 477 
 
 Miller, Jacob F. 
 
 Expert Testimony 493 
 
 Intoxicating Liquors 511 
 
 Mode of Inflicting the Death Penalty, 
 
 by J. H. Packard 517 
 
 New Theory of Trance, by Geo. M. 
 Beard 315 
 
INDEX. 
 
 PAGE. 
 
 OTJea, J, J, 
 
 Legal Responsibility i 
 
 Progress of Medico-Legal Science. . . . 286 
 
 Ordronaux, John. 
 
 Proper Status 01 Insane 47 
 
 Owen, Wm, A 259 
 
 O'Sullivan, R.J .255, 459 
 
 Patterson, Edward. 
 Monomania and Testamentary Capac- 
 ity .' 13 
 
 Penal Laws of Suicide, by R. S. Guern- 
 sey 109 
 
 PermanentCommission 157 
 
 Presumption of Death. 229 
 
 Progress of Medico- Legal Science, by 
 J. J. O'Dea , 286 
 
 Personal Identity, by Appleton Mor- 
 gan 363 
 
 Plea of Insanity, by Alfred L. Carroll, 387 
 
 Preface 
 
 Railway Injuries to Spine, by W. A. 
 Hammond 269 
 
 Riddle, D. S 228, 255, 459, 511 
 
 Raborg, Samuel A. , 
 
 Union of Charities and Corrections.. 403 
 
 Ray, Isaac 
 Testamentary Capacity 421 
 
 Relation of Law and Medicine, by 
 Cephas Brainard 523 
 
 Status of the Insane, by John Ordon- 
 aux 47 
 
 PAGE- 
 
 Suitsfor Malpractice, by Frank H. Ham- 
 ilton 97 
 
 Suicide, by R. S.Guernsey 109 
 
 School Room Poisoning, Report of 
 Committee 2-49 
 
 Seward, Clarence A 22S 
 
 Schools, Sanitary Condition of; Report 
 
 of Committee -.-■ 45° 
 
 Intoxicating Liquors 5 1 1 
 
 Stoughton, E- W. 
 Portrait of and Sketch - 420 
 
 Tardieu, Ambrose 
 
 Diagnosis of Hanging 40 
 
 Testamentary Capacity 13, 109, 421 
 
 Taylor, R. Swayne. 
 Portrait of and Sketch 229 
 
 Table of Contents 
 
 Valedictory Address, by Clark Bell 151 
 
 Valedictory Addressi,by F. H.Ham- 
 ilton '• . • 46° 
 
 Waltz. Joseph, A Ca*e of, by A. O. Kel- 
 logg 161 
 
 Wells, Geo. W 228 
 
 Yeaman, Geo, H. 
 
 Committee on Milk 22S 
 
 School Room Poisoning 249. 
 
 Sanitation of Schools 459, 
 
 Inaugural Address ./. 467 
 
0^