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The Unsound Mind and the Laws: A Presentation of Forensic Psychiatry.
By GEORGE W. JACOBY, M. D., author of Child Training as an Exact
1918.) The author complains that “most English or American books on forensic psychiatry have a distinct tendency to subordinate the medical viewpoints to the juristic ones, as the latter find their expression in our prevailing laws and judicial decisions," and contrasts the more recent advances in psychiatric medicine with the “conservatism, or rather let us say stagnation, that exists in English and American laws in the same field.”
No one who has given any attention to the decisions of courts of law upon points involving the question of responsibility as measured by the mental state of the prisoner, has failed to be struck with the almost supreme importance of legal precedent.
If a court of last resort has a quarter of a century ago rendered a certain decision, that same court to-day, although completely changed in personnel and having the advantage of advanced and more accurate information, hesitates to set aside the previous ruling and establish a new precedent more in consonance with modern ideas.
In forensic psychiatry, the opinions of the judges delivered to the House of Lords in the McNaughten case (1843) has with occasional modifications governed the decisions of judges and their instructions to juries. We have to go back less than two hundred years (1723) to find a ruling by Mr. Justice Tracy in Rex v. Arnold which reads: “It must be a man that is totally deprived of his understanding and memory, and doth not know more than an infant, a brute, or a wild beast; such a one is never the object of punishment.” “All others," the judge continues, “are responsible for their criminal actions whether sane or only partially insane."
In 1812 in the Bellingham case we have the first appearance of the ability to distinguish between right or wrong as a test of responsibility before the law.
From this ruling as modified by the opinion of the judges delivered to the House of Lords in the McNaughten case, it has been difficult to bring about any departure.
Alienists have recognized both in England and America where the decisions growing out of the McNaughten case have governed the courts, the injustice frequently wrought by this ruling, but have been practically powerless in their attempts to influence the courts or the law makers.
Before the case of Bellingham, in the trial of Hadfield for shooting at the King in Drury Lane Theater (1800), Erskine in his plea on behalf of the prisoner urged that delusions concerning the person assaulted or the reasons for such assault, notwithstanding the fact that the prisoner knew the nature and consequences of the act, and that it was contrary to law, was the real test of responsibility. In his argument this learned and eloquent attorney, referring to a case in which a woman who shot a man
who had betrayed and then deserted her, said that had he been on the jury he would have entertained grave doubts and difficulties, for though “she was in a most undoubted and deplorable state of insanity," "she acted upon facts and circumstances, which had an existence, and which were calculated, upon ordinary principles of human action, to produce the most violent resentment."
Grave and to some minds insurmountable difficulties arise when one attempts to harmonize the medical conceptions of mental alienation, and the legal and judicial definitions of responsibility.
Some years ago Chief Justice Perley, of Vermont, laid down this ruling: “Neither delusion nor knowledge of right and wrong, nor cunning in planning and executing the killing, and escaping or avoiding detection; nor ability to recognize acquaintances, or to labor, or to transact business, or to manage affairs, is, as a matter of law, a test of mental disease; but that all symptoms and all tests of mental disease are purely matters of fact to be determined by the jury."
Under this ruling the presence of medical witnesses in court is unnecessary and the expression of an opinion on the stand as to the sanity or insanity of the prisoner is an assumption of duties and powers which reside alone with the jury.
Dr. Jacoby's book has been written with the apparent hope of interesting judges and lawyers in the viewpoints of modern psychiatry and at the same time awakening in the minds of general practitioners a more intelligent conception of what mental disorder really involves, what the causes are which lead up to the conditions which we group under the general term insanity, and what are their responsibilities both to the patient and the community.
No one whose daily work brings him into contact with cases of mental disorder fails to recognize and deplore the fact that a better knowledge of the symptoms and probable course of even the more common psychoses by the family physician, would in many instances have prevented either a suicide or some infraction more or less serious of the law of the land.
After an introductory chapter there follows an historical retrospect which occupies over thirty pages. This retrospect is interesting, but so many things are of necessity crowded into a small space that several inaccuracies have crept in. For example, on page 41 it is stated that "as early as 1547 a former convent in Bedlam (Ireland) was transformed into an asylum for the insane.” The Priory of the Star of Bethlehem was established in 1247 by a gift of Simon Fitz Mary of certain lands without Bishopsgate, London. Here it remained until 1676, when a new and much better hospital was built in Moorfields in London. The insane had been cared for at Bethlehem (Bedlam) from about 1377 and probably in individual cases long before that date. The predecessor of Richard II, Edward III, seized the Priory as an alien corporation, and from some time during the last ten years of his reign it became a hospital and to some extent under the control of the King.
Its charter from Henry VIII was obtained in 1547, the date mentioned by the author, but the hospital, as a place of confinement for the insane, had existed for at least two hundred years prior to that date. The present hospital, “The Bethlehem Royal Hospital," situated in Lambeth Road, London, is the third building in order from the ancient priory of 1247. It was opened in 1815, and the patients, 122 in number, removed from the old building of 1676 on August 24, 1815. It is difficult to understand why the author locates this well-known hospital in Ireland.
One wonders why in the enumeration of those who have contributed to the advance of psychiatry so little notice is found in this historical retrospect of the work of Kraepelin, who has done more probably than any one else in Germany to place forensic psychiatry upon a sound basis; nor is any reference found to Kraepelin's writings in the several pages devoted to the “literature” of forensic psychiatry at the end of the book. This list of the literature of the subject, which comprises five pages, is far from complete. But five American names are mentioned, one being the author. Ordronaux's work, “The Judicial Aspects of Insanity," is apparently unknown to the author, as is a very large amount of material bearing upon his subject, not only in text-books, but in the periodical literature of psychiatry.
Griesinger's name is mentioned, but while Esquirol is credited with the foundation of the first psychiatric clinic in Paris, Griesinger's work in Berlin, where he established the first real psychiatric clinic in Germany, receives no mention, nor the fact that in his well-known work he paid much attention to the medico-legal aspects of insanity. Among English writers, Conolly, the father of the non-restraint system and a forensic expert of no mean order, finds no place in either the historical retrospect nor in the list of those who have contributed to the literature of the subject. Ray's Medical Jurisprudence may be out of date, but certainly the learned author, both as a psychiatrist of distinction in his time and an author of note, deserves at least a passing mention in a work of this kind.
More attention is paid in this section, as well as elsewhere in the book, to sero-diagnosis in insanity than the value of this method as evidence in courts of law will justify. Abderhalden and Fauser have each no doubt contributed much of value to our diagnostic methods, but the results of the tests of the blood of patients after their methods are as yet too uncertain to permit sufficient dependence to be placed upon them to warrant their introduction into the field of forensic psychiatry. Of the Wassermann examination of blood and spinal fluid, much more can be said, and we doubt whether any expert at the present time would feel that he was prepared to give evidence in a case when any doubt existed and particularly in one involving the possibility of paresis who had not made or had made by a competent serologist a Wassermann of both blood and spinal fluid.
The author does not, we think, lay sufficient emphasis upon the necessity of spinal puncture and a chemical microscopic and serologic examination of the fluid in suspected paresis. Indeed we find no reference to any examination of the spinal fluid except the Wassermann test.
In the author's classification it is difficult to determine whether he recognizes manic-depressive insanity in its depressed manifestation as something essentially different from melancholia, but one is led to infer that he does when he says, on page 192, that “in men melancholia occurring before the fiftieth year is rare.” The same doubt is true of mania.
The effort of the author to contribute something of value to the subject, “The Unsound Mind and the Law,” is a commendable one, and the book will be read with interest by all into whose hands it falls. That very much has been accomplished in solving the very complicated questions involved, we doubt.
The addition to the machinery of our courts of law of trained psychiatrists, as has been done in Chicago and elsewhere, the increasing attention which is being paid to forensic problems at our few psychiatric clinics, and lastly the studies which are being systematically carried on at Sing Sing prison in the author's own state, all of which fail to find notice in the book before us, will, we believe, be of much greater value. As a guide to psychiatry, it is below the standard of many of the recent contributions to the literature of the subject, and as a text-book upon forensic medicine as applied to mental maladies it fails to meet the demand which really exists for such a work. Cavil as we may at the decisions of judges, the quibbles of counsel and uncertainties of juries, the fact remains that the medical profession has sadly neglected an obvious duty and a striking opportunity in its failure to instruct the law as represented by the courts and the law makers. Every law school has a course in medical jurisprudence, as do many medical schools, but the instruction is of a most perfunctory character in many cases. In cities where there are both law and medical schools, the instruction in these subjects might well be combined, and when combined should be intrusted only to specialists of well-established reputation.
WALTER KEMPSTER, M. D. Dr. Walter Kempster was born in London, England, May 25, 1841. He was the youngest son of Christopher Kempster and Charlotte (Treble) Kempster. Christopher Kempster came to the United States and settled in Syracuse, New York, when Walter was seven years old. The father of Walter was an Abolitionist and an associate of Gerrit Smith and William Lloyd Garrison in the early days of anti-slavery agitation. Christopher Kempster was also active in the Y. M. C. A. in its years of inception. He took an active interest also in prison reform.
At the outbreak of the Civil War, when Walter Kempster was scarcely 20, he enlisted as a private in the 12th New York Volunteers and served from May to November, 1861. He was in camp on the White House grounds at Washington and remembered a visit of Lincoln to the camp, at which time Lincoln spoke to Walter, remarking upon his youthful appearance. After the first engagement, Private Kempster was detailed for hospital duty. He had already interested himself in the reading and study of medicine. After his three months' service, he re-enlisted in the roth New York Cavalry. He was appointed hospital steward in April, 1862, and became assistant to Surgeon-Major R. W. Pease at Patterson Park Hospital, Baltimore. He assisted in organizing this hospital which at times had over 1200 soldiers in its care. In January, 1863, he rejoined his regiment and was in engagements near Fredericksburg, Virginia. After the battle of Brandy Station, he was commissioned first lieutenant and was present at Gettysburg and in engagements of General Lee's retreat. He was injured at Mine Run; then resigned and continued his medical studies, graduating at Long Island Medical College in June, 1864. After graduation, he entered the army as acting assistant surgeon, was made an executive officer, and was actively engaged in such service till the close of the war.