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date: 21 April 2019

The Insanity Defense as a History of Mental Disorder

Abstract and Keywords

Throughout its history, the insanity defense specifically and the more general concept of mental defect or incompetence have been grounded in the assumption that those people fit for the rule of law are able to give and to comprehend reasons for their actions. This chapter traces the evolution of perspectives on the nature of mental illness and the manner in which cultural and extra-scientific influences have shaped perspectives. These perspectives are most saliently expressed in statutory provisions and relevant case law summarized here and covering historical developments from ancient Greece and Rome to the present. Significant interactions between law and psychiatry are further highlighted and informed by core and controversial philosophical assumptions. Attention is given to differences between juridical and medical conceptions of responsibility.

Keywords: canon law, competence, corpus juris civilis, delusion, dementia, Frye standard, guilty but insane, inquisition, insanity defense, Lord Coke, madness, malleus maleficarum, McNaughtan rule, mens rea, Model Penal Code, paranoia, responsibility, Roman Law, testation, twelve tables, witch trials

The two most venerable domains of scholarship and inquiry addressed to the very nature of human nature are law and medicine. Both have passed through developmental stages as a result of advances in knowledge and alterations of perspective. Both seek practical solutions to problems arising in the actual context of lived life. At any given point in their respective developmental course, each has a more or less settled position on core precepts and accepted standards of evidence. Though different in so many respects, both—as systematic bodies of knowledge and principle—stand as sciences in the original understanding of the term. There is no corruption of language, therefore, in referring not only to medical science but also to jural science.

Of the several points of conflict and complementarity on which law and medicine converge, mental health has held a special place historically.1 The history of law in the West is never indifferent to this. Note, for example, that Rome’s Twelve Tables make provision for controlling the assets of one given to states of manic profligacy. Accordingly, through a study of legal history, one develops a more comprehensive understanding of how a given age addressed and, as it were, settled such philosophically vexing questions as those associated with notions of determinism and moral autonomy, contextual sources of mitigation, powers of agency, and degrees of responsibility. What history reveals is the interplay between law and science and between both of these and the philosophical foundations on which each depends for its credibility. The claims of science are said to be vindicated by evidence and proof, but both evidence and proof must satisfy criteria external to both; criteria developed through the resources of philosophical argument and analysis. The assumptions of law include centrally the proposition that persons are fit for the rule of law; that they can be held responsible and are expected to be able to give and to comprehend reasons for action. (p. 19) All this, too, is subject to what are finally philosophical modes of evaluation. What history makes clear is that the scientific and legal conceptions of the mind and mental life have been parasitic on more fundamental philosophical assumptions, often untested and occasionally at cross purposes with the aims of law. All this is especially evident in the history of the insanity defense, the focus of this chapter.

As noted, the rule of law presupposes creatures of a special kind; viz., those able to give and to comprehend reasons for their actions; persons able to defend their actions by supplying justifications which are, after all, reasons sanctioned by law. The concept of mens rea is but the technical term for what is otherwise one of the core and common sense assumptions of legal responsibility and liability. Even when a legal system is silent on the particular psychological or mental powers on which such responsibility depends, the very efficacy of law arises from the possession of such powers by the public at large. Otherwise, as H. L. A. Hart noted, “no legal system could come into existence or continue to exist” (Hart 1968, p. 230).

There are, of course, many and varied legal systems. Needless to say, charting the history of the insanity defense within the ambit of a single chapter calls for severe restrictions of scope. The focus here is on Western jurisprudence as bequeathed by ancient Greek and Roman sources and on conceptions of mental disorders developed chiefly within the context of American and Anglo-European medicine.2

The ancient Greek world did not have written law until the archonship of Draco late in the seventh century bc. The laws were posted and, though most of them were later repealed by Solon, certain basic precepts were preserved. For example, Draco’s laws make a distinction between murder and involuntary homicide (see Gagarin and Cohen 2005). Centuries before written law there were customary understandings seemingly grounded in the very nature of those fit for the rule of law itself. Proto-legal systems depend on what is taken to be the counsel of the wise as the Eleatic Stranger makes this clear to Socrates in the Statesman. He argues that one who must legislate “will not be able, in enacting for the general good, to provide exactly what is suitable for each particular case” and “no art whatsoever can lay down a rule which will last for all time … (Thus) the best thing of all is not that the law should rule, but that a man should rule, supposing him to have wisdom” (Plato, Statesman, 294–295).

One finds an explicit recommendation for the law’s treatment of the insane given in Book IX of Plato’s Laws where the Athenian Stranger considers how the laws of Athens deal with issues of motivation and competence. He notes that laws have been enacted to deal with those who rob from the gods, who commit treasonous actions, and who manipulate the laws to their own ends. One may commit such crimes:

in a state of madness or when affected by disease, or under the influence of extreme old age, or in a fit of childish wantonness (hybris), himself no better than a child. And if this be made evident to the judges … he shall simply pay for the hurt which he may have done to another; but he shall be exempt from other penalties, unless he have slain some one and have on his (p. 20) hands the stain of blood. And in that case he shall go to another land and country, and there dwell for a year.

(Plato, Laws, 864)3

There is no evidence in the ancient sources, however, that such philosophical reflections, any more than prevailing medical theories of insanity, yielded exculpatory consequences in the arena of adjudication. Ancient courts regarded the criminal act itself as evidence of mental capacity and saw to it that damages were compensated, crimes punished, and society protected against the deeds of the mad.

In the matter of insanity, ancient Greek law was rather more developed and explicit when considering contracts, property, and testation than when dealing with criminal offenses. One of the few detailed sources of actual judicial proceedings is Isaeus (ca. 420–350 bc). Of the many appeals he prepared for clients, 11 survive, all of them pertaining to matters of contract and testation. The mental state of relevant parties is often the grounds of challenge. For example, in the matter of the estate of Cleonymus, who died childless and whose will named relatives as beneficiaries who were, however, not next of kin, the claimants insist that Cleonymus wrote the will “in a misguided moment of passion.” If, indeed, this were true, the will should be set aside on the grounds that Cleonymus was insane (paranoian). Again, in the matter of the estate of Menecles, whose adopted son would be beneficiary, the adoptee must argue that Menecles “was not insane or under the influence of a woman, but was in his right mind (eu phronon)” at the time of the adoption. In still other cases consideration is given to senility and seduction as grounds on which to overturn a will. Thus, a man who adopts a son, says Isaeus, will have the adoption invalidated if it is shown that the action was taken, “because of madness (paranoia) or old age or drugs or sickness, or under the influence of a woman, or compelled by force or restriction of liberty” (Isaeus 1927).4

In Roman law, as noted earlier, the Twelve Tables incorporated similar tests in the matter of property: “When no guardian has been appointed for an insane person, or a spendthrift, his nearest agnates, or if there are none, his other relatives, must take charge of his property.”5

Categories of mental competence were used to partition defendants in Roman law: non compos mentis, fanaticus, ideotus, furiosus. These indicate the refinement of ancient law. It was common for statutes pertaining to, e.g., conditions that invalidate a contract, to refer to infants (children) and the insane in the same context. A senile and childlike father, successfully charged with insanity (paranoia), could be legally stripped of control of his estate by his son. The Twelve Tables identify the madman (furiosus) specifically, and require the nearest relatives to take over the management of his affairs if no guardian (cura) has been appointed. Later, at the time of the codification and promulgation of Roman law, the Institutes of Justinian interdict the transactions of a prodigus (spendthrift), though similar transactions by the furiosus are not thus interdicted, for “what he did was valid if he was not mad at the particular time when he did it” (The Institutes of Justinian 1922/1970). Prodigality, regarded (p. 21) as something of an uncontrollable or obsessional disposition, is constrained by the laws of contract, whereas some forms of madness are taken to be episodic.

The medical practitioners of the classical world were not indifferent to these matters. The Hippocratic author writing on epilepsy rejects the “divine madness” thesis, insisting instead that:

(F)rom the brain, and from the brain only, arise our pleasures, joys, laughter and jests, as well as our sorrows, pains, griefs and tears … It is the same things which makes us mad (paraphronimos) or delirious … and (causes) acts that are contrary to habit.

(Hippocrates 1952, pp. vi–xx)6

In his De Medicina, Celsus (b. ca. 25 bc) summarized Greek medical theories of insanity as well as therapies that had been employed for centuries. One form, called by the Greeks phrenesis, is the acute insanity caused by fever. In this state, “patients are delirious and talk nonsense.” In extreme cases, when the condition does not pass quickly or respond to treatments, the patient’s mind comes fully under the control of illusions and imaginings (“mens illis imaginibus addicta est”). Additionally there are those whose insanity is expressed in the form of sadness or hilarity, violence and rebelliousness. Of the violent ones, notes Celsus, some may be impulsively harmful, others may even be “artful” (etiam artes adhibent), seeming to be entirely sane only to reveal their madness in mischievous acts (Celsus 1935, pp. 289ff).

There has been a long and spirited controversy surrounding the question of the continuity of Roman law in early and late medieval jurisprudence (see Radding 1988, pp. 7ff). What is clear is that, for the Canonist and Christian moralist, the issue of insanity and diminished capacity was far more complex than it was in the ancient world, and this was for reasons both practical and theoretical. First, there was the question of the validity of sacramental rites when either conducted or received by those judged to be insane or incompetent. Then there was the need to distinguish between (merely) legal offenses and those that are genuinely sinful. Bound up with this was the biblical (textual) authority for the belief that certain debilitating conditions, including insanity, are visited upon certain persons as a punishment for their sins, such that these conditions—far from conferring immunity—add further evidence of guilt. In the matter of evidence, still greater burdens were created by the need to see into the heart and soul of the defendant; into that interior life in which guilt and innocence find their wellsprings.

At least from the time of Constantine, and even with the seat of empire moved to the East, there was no frontal attack on Roman law by the Christian world. Rather, in what now must seem like a remarkably brief time, its core principles were systematically absorbed into the larger political and social objectives of the Church; so much so that, beginning with the Corpus Juris Civilis, it becomes difficult to identify any fully independent lines of development of Canon law, common law or, for that matter, the laws of the contemporary western democracies. However, the early Church did not catch up with this bequest immediately. There were changes of a subtle nature imposed on the older tradition. Where classical juridical reasoning and procedure tended to ignore the private recesses of conscience and belief, these were just the domains of greatest concern and interest to the Church. Accordingly, (p. 22) much closer attention was paid in practice to the aspects of mental life and its special vulnerabilities to which classical jurisprudence had been nearly officially aloof.

The contrast is vivid between the laws Rome had carefully crafted over the centuries and those that would arise when members of alien cultures attempted to absorb them. In 636, Rothair, the newly elected Duke of Brescia, codified customary Germanic laws. One can gauge the jurisprudence thus installed in Italy from a study of Rothair’s Edicts: there are 338 of them. Numbers 48 to 124 record the separate penalties (“composition” for damages) assessed for assaults against specific parts of the body. Thus, (50) “On cutting off lips,” (52) “Concerning the molar teeth,” (69) “Concerning big toes,” (70) “Concerning second toes” etc. Edict 189 is the first to mention mental illness:

Concerning the girl who becomes a leper after her betrothal. If it happens that after a girl or woman has been betrothed she becomes leprous or mad or blind in both eyes, then her betrothed husband shall receive back his property and he shall not be required to take her to wife against his will. And he shall not be guilty in this event because it did not occur on account of his neglect but on account of her weighty sins and resulting illness.

(Emphasis added)

As for Roman solicitude toward those judged mad, edict 323 contains both the theory of mental illness and the law’s judgments:

On madmen. If a man, because of his weighty sins, goes mad or becomes possessed and does damage to man or beast, nothing shall be required from his heirs. If the madman is killed, likewise nothing shall be required.7

Records from Carolingian Europe, covering the period 830–832, provide a similar picture. Lothar, judging Gerberga to be a witch, “tortured her for a long time and then executed her by the judgement of the wives of his wicked counsellors.” Lothar’s own passion for Waldrada was also taken to be caused by witchery. And, in order to preserve “the peace of the Church,” Charles will promulgate laws in 873 that will put to the ordeal all suspected of witchcraft.8 When Roman jurists concerned themselves with mens rea, the matter was more or less disposed of by the very nature of the offense. Matters are different on the assumption that one has sinned in his heart and that, “there cannot be a sin which is not voluntary” (Augustine, Concerning the Truth of Religion, Book XIV, ch. 27).

In the Eastern empire Christianity had preserved the teachings of Galen and the naturalistic traditions of the classical world. These influences were especially great in Byzantine medicine and would be adopted in the Islamic world of the later Middle Ages when the bimaristan surfaced as a veritable psychiatric hospital. In such places insanity was thoroughly “Galenized.”9 For quite some time, these same sources were rarely consulted and only partially known in the West. Even when consulted in quasi-scientific terms, there was no larger sense of how such maladies might bear upon questions of adjudication. On the whole, this situation worked a special hardship on insane or mentally retarded defendants, although St. Ambrose, St. John Chrysosthom, and St. Augustine all lent their authority to (p. 23) the proposition that the insane cannot justly be punished for their actions. Augustine spoke for them all when he wrote:

We have known certain individuals suddenly unbalanced who, with club and cudgel, stones and bites … were not found guilty because of the fact that they had done these things unknowingly and not freely, but by the impulse of some force, I know not what. For how can a man be called guilty who does not know what he has done?

(Augustine, Questions Concerning the Old and New Testament, Question 2, cited by Pickett 1952, p. 44)

Working against this leniency, however, was the very strong voluntarist theory of criminal liability embraced by Christianity, thereby narrowing to some extent the range of legal defenses available to the mentally afflicted, even as the range of moral offenses constitutive of sin was enlarged. Some of these offenses were clearly tied to mental disturbances but assumed to be of the sinner’s own making. Mental illness bore the heavy burdens of shame and concealment which, in the ancient world, were either muted or remarkably lacking. Theory was replacing matter-of-factness, and with mixed results.

Pope Gregory I (590–604) ruled that no cleric could be ordained if at any time he had been beset by insanity (see Pickett 1952, p. 39). But Cassian, the Egyptian monk of the fifth century, had rejected such exclusions, proposing further that the sacraments be administered every day. He and his fellow monastics were satisfied that the very existence of insanity established the reality of demons and possessions, but whose ability to possess persons could be resisted by the angelic part of human nature (Pickett 1952, p. 42). Gradually, the judgment of the instructed class began to change, aided by the introduction of long-lost texts from the classical period. Late medieval scholarship in the matter of insanity was thus classically informed and guided far less by superstition than by the now rigorous canonical principles of the Roman Catholic Church. By the conclusion of the thirteenth century, and largely as a result of the writings of St. Thomas Aquinas and the more general revival of aristotelianism, medieval theories of mental illness were increasingly naturalistic.

On such matters as the validity of sacramental rites, Thomas Aquinas carefully distinguished between insanity from birth and that occurring later in life; and between insanity without remission and that in which lucid intervals are common. It should be noted that “temporary insanity” is not a legal concept indebted to modern psychiatry, nor were medieval jurists at all reluctant to consider it. For example, in a trespass case of 1378, counsel for the defendant, Ralph Paranter, contends that, “every month between lucid intervals he was stricken with a serious sickness and thus became virtually insane during those times” (Arnold 1987, 34.23, p. 390). The point of such distinctions, so important in the context in which Thomas Aquinas wrote, is to establish the conceptual and moral dependence of sin and guilt on rationality and consent. The fineness of the requisite analysis is conveyed by his discussion of marriage covenants and insanity. He argues that, although the present mental state of a person is sufficient for the commission of mortal sin, the marriage contract calls for consent that bears on the future. Therefore, greater discretion is required. Accordingly, “man can sin mortally before he can impose upon himself some future obligation.”10 What is clearly recognized here is that there are gradations of mental status, and that incapacity as (p. 24) regards one class of thought or action may not extend to another class. It is in passages such as this that evidence is clearest of the Church’s thorough absorption of classical (Roman) juridical reasoning into its own canonical context. It is worth mentioning that, to the extent the Natural Law tradition is properly identified as integral to Roman Catholicism, it is so because of this very absorption. How unsurprising, then, that Bracton borrows freely from Romanists and Canonists (e.g., Bernard of Paivia) in compiling his De legibus Angliae (Bracton 1915). Canon law, under the inspiration of scripture but everywhere beholden to Roman law, dealt with specific cases involving questions of mental competence. The growing canonical authority of the Pope resulted in any number of such issues being brought to Rome for settlement. The mode of settlement was adjudicative in that cases were disposed of according to carefully gathered evidence (e.g., depositions), settled law, well-established precedents, and (papal) interpretations in hard cases. R. Colin Pickett summarized a number of cases occasioned by allegations of insanity, of which the following is illustrative. A monastic priest, just before he died, declared to witnesses his intention that his earthly belongings be conveyed to the monastery, thus excluding the local church as a beneficiary. Here, then, was a conflict of interests between a bishop and an abbot. In this dispute, the Bishop of Nevers insisted that the deceased had been insane at the time he expressed his intentions and, therefore, should be regarded as having died intestate (Pickett 1949). In deciding the matter, Innocent III (1198) ruled that in such cases there is both the presumption of sanity and the resulting burden of proof imposed on those who would challenge the validity of testaments. But what of cases in which one declares himself to have been insane at some earlier time; for example, a priest seeking relief for some offense on the grounds that he had been entirely beside himself (extra se positus)? Again, Canon XV had long established the nullity of vows taken by the insane, but with Innocent III there is this modification: the burden of proof now shifts to the defendant, again because of the presumption of sanity. By the middle of the thirteenth century Bracton had summarized English law in this area in a phrase that could have been found in Justinian and defended by Aristotle: “For no crime is accomplished except that the desire to harm intercede” (Bracton 1915). The centuries of witch hunts and persecutions in Europe and America mark off a significant period in the evolution of legal concepts of insanity. The special nature of witchery called for alterations and even the suspension of trial procedures that had become settled features of law. In the ancient worlds of Greece and Rome, ordinary citizens readily accepted that some persons possessed exotic powers or might be chosen by the gods to be the medium for divine stratagems. It was understood that practitioners were able to perpetrate evil through a “black magic” harmful to others (maleficium); or that they might employ a benign “white magic” to cure illnesses and bring about good weather or a decent run of luck. Rome’s Twelve Tables threatened only witches guilty of maleficia. As the power of ecclesiastical courts increased, along with the pronounced urbanization of European communities late in the Middle Ages, the adaptation of Roman law to Church interests was ever more vigorously pursued. Ancient distinctions between “black” and “white” magic were dissolved, all witchcraft now taken as proof of a covenant with Satan. These effects would come to be catastrophic in many European communities, but only after the merging of secular and religious thought. Given the very nature of the emerging but still undeveloped scientific outlook of the Renaissance, (p. 25) it becomes less paradoxical that the greatest excesses of witch hunting would take place well into the modern era. The accusatorial procedures of early medieval law required that complaints and charges originate with the aggrieved or injured party. It was not the judge or the jurisdictional authority who prosecuted. Rather, the authorities heard the charges, weighed the evidence, and then ruled. Where the weight of evidence was insufficient to support a ruling, the contestants in a criminal action were called upon to face one or another ordeal. With the evolution of more refined (classical) procedures and the greater centralization of power, the accusatorial method was replaced by the inquisitorial, the judge now centrally involved in trying the case. With these developments the burdens imposed on accusers were now all but eliminated. A court finding the charges at all credible would take up the case, the officers of the court having the power to obtain and weigh the evidence, determine guilt or innocence, and set the penalties. The major gain in these procedural developments was the elimination of savage and juridically meaningless practices and their replacement by rules of evidence applied by competent jurists acting in behalf of Church or Crown. But the major liability, during the long season of the witch hunt, was that a successful prosecution for a crime such as heresy or the “white magic” of witchcraft—which often had neither victim nor eyewitness—would require the defendant’s confession; a defendant no longer having the option of counter-suit. The melding of the civil offense of maleficium with that of heresy greatly enlarged the pool of potential suspects. Predictably the hardships wrought by these developments would be greatest for those whose medical, social, or psychological conditions resulted in signs or symptoms not readily explicable in the primitive medical idiom of the day. Epileptic seizures, various movement disorders, hysterical and neurological conditions that mar the body or modify memory, thought, and consciousness are illustrative of diseases that would prove to be especially congenial to demon-based or possession-based explanations. As for the recovered classical approach to law, the declared witch again lost out. The crime of witchcraft was the crimen exceptum for which standard procedures were ill-suited. Where physicians were consulted, the rationale was quite different in cases of possession and those of alleged witchcraft. D. P. Walker has noted in this connection that medical experts in witch trials were called upon to examine the accused for the devil’s mark or to determine if there were supernumerary mammaries with which to nourish the demons. But doctors were not asked whether the witch was insane (see Walker 1968, p. 32). Nonetheless, in that widely adopted handbook for identifying and interrogating witches, the Malleus Maleficarum, necessary distinctions must be made between scientific and satanic practices and it therefore becomes important to know about each genre. The authors, Kramer and Sprenger (1486/1970), refer to information that has been gleaned by direct experience; to findings that have been reported in medical (Galenic) or naturalistic settings; to Aristotle’s scientific analysis of the prophetic power of dreams—a power based on the ability of the imaginative faculty to record states of the body that might, indeed, portend disease. Further distinctions are made between healing based on mere superstition (as in believing in the power of Saturn over lead) and that based on witchcraft.

Throughout the macabre spectacle, physicians of the mind began to appear, some in the fearsome garb of inquisitor and witch-pricker, others in the long gowns of cabalistic shaman and Magus, still others in the stained and singed tunics of the herbalist, alchemist, the hermeticist; a few in the modest role of the diligent doctor. Johann Weyer’s De praestigiis daemonum et incantationibus ac veneficiis saw six editions between 1563 and 1583 (Weyer 1991). Weyer did not deny the reality of Satan. He did not rule out the participation of (p. 26) demons in mental illness. Rather, he considered the weakened mind of the aged and the psychologically distressed to be something of a devil’s workshop wherein all varieties of illusion may be crafted. Women tend to float, given their lighter constitution, a fact known since the time of Hippocrates. To Weyer, this was simply a fact of nature, lacking in any and all spiritual implications. He observed that drugs such as belladonna, opium, henbane, and tobacco enhanced such hallucinatory effects and could produce them in their own right. Again, forms of mental disorder did not require the participation of occult forces or beings. Those who regard themselves as possessed and admit to being witches are, he reasoned, generally suffering from melancholia. They need the attention of a physician, not an inquisitor. Inevitably Weyer’s name was placed on the Index in Roman Catholic Europe as his book was set on fire by the Protestant faculty of Marburg.

At the time of its publication in 1563, Weyer’s De Prestigiis Daemonum was exceptional but not entirely unique. Earlier in the sixteenth century, Paracelsus (1493–1541) wrote his brief treatise On diseases that deprive man of health and reason, noting in the Preface that the European clergy attribute these diseases to “ghostly beings,” whereas “nature is the sole origin” of them. In this work Parcelsus argues that the loss of reason reveals itself in four principal forms: the Lunatici get the disease from the moon and react to its phases. The Insani are born with the malady, insanity being part of the family heritage. The Vesani suffer from toxic reactions to food, drink, or poison. The Melancholici become insane, losing reason in the course of a lifetime. Thus, even as approaches such as Weyer’s faced hardship, the medical perspectives on insanity were growing in prominence during these very centuries.

The important trial of Hacket, Coppinger, and Arthington is illustrative. The three were charged with conspiracy, Hacket having declared himself King of Europe. In reporting the details of the case, Richard Cosin (1592/1963) set down the grounds of an insanity defense as English courts would understand this at the end of the sixteenth century. The principal categories affirmed by “the best writers” on the subject are Furor sive Rabies; Dementia sive Amentia; Insania sive Phrenesis; Fatuitas, Stultia, Lethargia, & Delerium. Furor, as Cosin discussed it, is the condition of the venerable furiosus, whose mind suffers “full blindnes or darkening of the understanding,” the actor knowing not at all what he is doing or saying. Dementia (Mente captus) is an unremitting insanity, distinguished from insania in its severity. With insania the sufferer, though “braine-sicke, cracked-witted … or hare-brained” is still fit for social life and is not entirely void of understanding. Fatuitas is the condition of the “natural fooles,” though with stultia the victim is not included among the Idiotes. However, although Cosin’s taxonomy is clearly informed by medical knowledge and the opinions of “the best writers,” the courts at the time still hold all perpetrators responsible who are not totally mad.

By the turn of the century the naturalistic perspective had made even greater progress. As a result, courts began to consult physicians directly in ambiguous cases. Thus, when Elizabeth Jackson was tried in 1602 for bewitching Mary Glover, doctors testified in her behalf that the victim’s fits were caused naturally.11 However, even as the scientific mode of thought inaugurated by Bacon, Newton, and Galileo swept across Europe, the phenomena of the human mind remained refractory to the new methods and perspective.

(p. 27) Developments in law reflected the broader influence of that classical perspective that had been embraced by the leaders of Renaissance thought. Sir Edward Coke’s Institutes of the Laws of England appeared in 1628 and would be authoritative for the better part of two centuries. Written by one who would come to be regarded as England’s greatest common lawyer, the work presents a naturalistic perspective on insanity wherever Coke addresses the matter. The perspective is an older Roman one, not at all remote from Coke’s own. Coke moved the law toward secular understandings of all such matters, but more by the weight of past traditions than the light of the new science. According to the laws of England, he writes, persons of “non-sane memory” may purchase but not sell lands. But if the person then recovers, agreements entered into are “unavoydable.” Coke specifies the legal sense of a diseased mind and considers the various forms of mental deficiency recognized by law: “amens, demens, furiosus, lunaticus, fatuus, stultus.” However, the true mark of insanity from the law’s perspective is given by the phrase pos mentis.

Coke uses memory and understanding interchangeably in identifying the degree of psychological deficit worthy of the law’s attention. Although acknowledging the exculpatory nature of a temporary insanity that is interrupted by lucid intervals, he requires of insanity itself what is essentially the total loss of cognitive prowess. The causes alluded to are all natural. The phrase he takes to be “the most sure and legall” is the one that describes one who has no power of mind whatever.

Sir Matthew Hale was more forward-looking than Coke and more concerned to work out the subtler aspects of insanity in relation to law. Chapter 4 of his posthumously published The History of the Pleas of the Crown (1680) is devoted entirely to this matter and, although not published in Hale’s lifetime, it established how Britain’s leading jurists were coming to regard these matters by the time of Hale’s death (1676).12 Yet, Hale’s life and writings exemplify the divided nature of psychological thought even in the age of Newton. The private religious beliefs of men such as Hale still did not wander far from the authority of scripture. Witchcraft, which would find no place in Hale’s discussion of legal insanity, was a topic on which he nevertheless wrote both in his unpublished papers and in briefer published tracts. In 1665, two widows appeared before him indicted for witch-craft, charged with causing children to vomit nails and see animals invisible to others. Although Hale did not speak one way or another on the matter of the actual evidence adduced against the defendants, he did direct the jury to recognize the authority of scripture as well as acts of parliament on the matter of the existence of witches. The defendants were found guilty and executed.13

Hale’s chapter concerned with insanity begins with a classification of the defects and incapacities of mind other than infancy. In considering dementia, Hale delineates the usual causes (“distemper of the humours,” adult cholera, melancholy, violent fevers and palsies, “a concussion or hurt of the brain, or its membranes or organs”) noting that these may result in either partial or total insanity. The former is not exculpatory of capital offenses for the defendants, “are not wholly destitute of the use of reason” (Hale 1778, p. 30).

Note that the criterion remains a total want of reason. Because of this, and because total insanity is exculpatory, Hale alerts readers to the importance and the difficulty (p. 28) of assessing the degree of damage and injury caused. The criterion of 14 years is “the best measure” Hale can think of to guide jurors in difficult cases. Total insanity does not present a difficult case, for the defendant suffers from a complete alienation of mind that will be obvious to all. Partial insanity is difficult, for the defendant clearly is able to comprehend some things but not others. What one must ask in the latter case is whether there is sufficient rationality for the defendant to have more than a child’s comprehension. It is as if Hale would take partial insanity to be more akin to ideocy than to perfect madness.

Hale draws a further distinction between permanent and intermittent or episodic dementia. The fixed variety he labels phrenesis, the latter lunacy “for the moon hath a great influence in all diseases of the brain, especially this kind.” In such cases, the lucid intervals come between the full and the change of the moon, at which time sufferers have “at least a competent use of reason” such that, if they commit crimes while in this state, they are “subject to the same punishment, as if they had no such deficiency.”

Taking out the pardonably dated references to lunar influences, Hale’s brief summary of the chief causes of dementia is not only informed by the science of his day but compatible with what might even be called the modern view. He understands the several forms of dementia to be the result of a diseased brain, or biochemical (humoral) disturbances, or heredity. However, the issue at law is not one of etiology but of responsibility. The question to be settled is whether, at the time the offense was committed, the defendant was in sufficient possession of understanding to be held accountable. This question, on Hale’s understanding, can be answered independently of any consideration of the defendant’s brain, bile, or pedigree.

Two years after Hale had sentenced the widows to death for witchcraft, Thomas Willis’s pioneering studies of the comparative anatomy of the brain were published. All of his major publications found large audiences, his Opera Omnia alone going through 11 editions by 1720 (see Frank 1990). The conclusions he reached after painstaking research and clinical observations establish the brain as the central organ of experience, action and emotion. Cerebral pathologies result in identifiable psychological disturbances. By the early eighteenth century, the major medical centers of Europe were given over either to essentially mechanistic or essentially chemical theories of health and disease, with all notions of “spirit” now cast chiefly in psychological and mental terms. The courts both followed and to some extent led developments along these lines.

In 1724 the Court of Common Pleas decided the case of Rex v. Arnold.14 Edward Arnold was tried for felony “in maliciously and wilfully shooting at, and wounding, the Right Hon. the Lord Onslow,” the defendant pleading not guilty by reason of insanity. In his charge to the jury Justice Tracy made clear that the insanity defense was a settled matter. If the defendant,

be deprived of his reason, and consequently of his intention, he cannot be guilty … (However) … it is not every frantic and idle humour of a man, that will exempt him from justice, and the punishment of law … it must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast.15

(p. 29) Arnold was convicted, was sentenced to be executed, and was spared through the intercession of his victim.

Tracy’s instructions to the jury remain within the ambit established by Roman law and transported into Common law through Bracton, Coke, Hale, and the rest. For the insanity plea to succeed, the defendant must be insane at the time of the offense, the degree of insanity extensive enough to preclude any sensible awareness on the part of the defendant of the gravity of the action. The reasoning in criminal prosecutions was matched by the understandings of civil courts as can be seen in tests of testamentary capacity. In Cartwright v. Cartwright (1793)16 Mrs. Armyne Cartwright had left a will in her own hand, leaving her not inconsiderable fortune to her brother’s daughters and nothing to the issue of her father’s second marriage. Her friend, Lady Macclesfield, stated in her deposition that the deceased considered her blood-brother a “much nearer and dearer relation than her brothers and sisters by the half-blood.” But her physician, Dr. Battie, had instructed her nurse and other servants to keep pen and paper away from her and prevent her from writing. He went even further, informing Mrs. Cartwright that he would be a witness against any official document she might sign. However, Sir William Wynne rendered the judgment of the court, left no doubt about the grounds of his ruling:

the deceased, by herself writing the will now before the Court, hath most plainly shewn she had a full and complete capacity to understand what was the state of her affairs and her relations.17

During the concluding decades of the eighteenth century the psychological maladies of George III as well as advances in medicine promoted a more humane set of attitudes toward mental illness. Medicine, too, was prepared to attach itself more firmly to objective scientific approaches to insanity. The courts, in climates of revolutionary upheaval and humanitarian reform, moved with the times. A pivotal case illustrating these developments was the trial of James Hadfield and the profoundly influential defense mounted in his behalf by Thomas Erskine (Box 3.1).18 The crime was that of high treason—an attempt on the life of George III—and the appointed counsel for the defense was perhaps the greatest trial lawyer in England. Erskine acknowledges before the jury that the controlling principle in England “and every other country” is:

that it is the REASON OF MAN which makes him accountable for his actions; and that the deprivation of reason acquits him of crime.19

Erskine challenges this principle, dismissing ancient notions of furious and wild beasts as referring to entities that, even if they exist, would be unable to plan and execute a crime. He then advances, on the strength of current medical opinion, the proper legal criterion to be applied by jurors:

Delusion, therefore, where there is no frenzy or raving madness, is the true character of insanity; and where it cannot be predicated of a man standing for life or death for a crime, he ought not in my opinion, be acquitted.20

(p. 30)

Looking back over the history of the subject in 1876, Henry Maudsley would state matter of factly that, “It was at the trial of Hadfield, in 1800, for shooting at the King in Drury Lane Theatre, that Lord Hale’s doctrine was first discredited, and a step forward made for the time” (Maudsley 1876, p. 91).

(p. 31) Difficulties arising from Hadfield soon made their way into both criminal and civil cases. In 1812, John Bellingham was tried and convicted of the murder of the Prime Minister, Spencer Perceval, previously Chancellor of the Exchequer. The motive was Bellingham’s groundless claim that the Crown owed him money for time he had served in a Russian prison while Perceval had been Chancellor of the Exchequer. Failing to secure compensation from the Treasury, he hunted down Perceval and fired a fatal bullet at him in the lobby of the Commons House of Parliament. A plea of insanity was filed, though contested by Bellingham himself. There was no express attempt to link Bellingham’s defense with that of Hadfield. Nonetheless, the odd rationale developed in Hadfield fostered the conclusion that actions arising from morbid delusion should be judged according to what the law would require or permit were the contents of the delusion true. If, indeed, James Hadfield had been commanded by God to rid the world of himself but not by taking his own life, and if he sought to obey this by having the King’s defenders kill him, no English court would have found him guilty of a crime. But supposing John Bellingham’s grievance to be valid, his lethal assault on Spencer Perceval would still have resulted in the law’s maximum penalty.

The welter of attitudes, theories and concerns abounding in this period were crystallized, in the trial of Daniel McNaughtan in 1843.21 Addressing the jury, counsel for the defense makes clear that one suffering from mental illness leading to “frantic imagination and ungovernable fury” cannot be punished at law and that, “to hold otherwise would be to violate every principle of justice and humanity.” Determining whether the defendant qualified for such consideration resulted in the formulaton of the so-called McNaughtan rule. Justice Tindal expressed the “rule” thus:

at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.

Tindal went on to explain that this wording is preferable to versions that cite or suggest a knowledge of the law of the land, or a general knowledge of right and wrong. The important consideration is the defendant’s mental capacity as regards the specific act with which he has been charged. Problems with such a formulation were promptly recognized both in psychiatry and in law. Within two years of the verdict in McNaughtan, Griesinger’s authoritative Mental Pathology and Therapeutics appeared, offering ample clinical data in opposition to the claim (1) that insanity invariably includes the element of delusion; (2) that the insane cannot distinguish between right and wrong; (3) that there are always irresistible motives behind the productions of madness. The one generalization he did endorse, and this on the very first page of the book is that the source of “madness” is to be found in the brain (Griesinger 1882).22 The influential Supreme Court of New Hampshire took a leading part in the development of law as it pertains to insanity, Justice Ladd, in State v. Jones (1871) explicitly rejected not merely the McNaughtan “rule” but the very notion that matters of this sort were reducible to rules. He wrote: (p. 32)

It is entirely obvious that a court of law undertaking to lay down an abstract general proposition, which may be given to the jury in all cases, … stands in exactly the same position as that occupied by the English judges in attempting to answer the questions propounded to them by the House of Lords in (M’Naughten); and whenever such an attempt is made, I think it must always be attended with failure, because it is an attempt to find what does not exist, namely, a rule of law wherewith to solve a question of fact.23

What the judge seeks to make clear is that a court, in propounding a legal principle, cannot thereby establish a scientific or medical fact. He takes the question of responsibility in such cases to be a medical question and thus beyond the resources of the general principles on which the rule of law depends.

Even before learning the details of McNaughtan Chief Justice Shaw in Massachusetts had instructed the jury in the landmark trial of Abner Rogers (1843) in such a way as to attempt to avoid the sorts of problems inherent in the “McNaughtan Rule.”24 Ample evidence attesting to the insanity of the defendant was marshaled at trial. What was special about the case, however, was Shaw’s instructions to the jury which contained a new item in listing the criteria the jury must apply. Rogers was to be acquitted if the jury found that his actions were, “the result of disease.”

The momentum that had been imparted as early as Hadfield and that increased significantly by mid century would reach its peak in American cases.25 Again, the rationale guiding criminal cases extended to civil cases. In Boardman v. Woodman Justice Doe refers to Coke and Hale as men who “unfortunately copied the opinions of the medical authorities of their day on the subject of insanity,” and then affirmed the principle that no crime can be committed and no will produced “by any form of mental disease, and that the indications and tests of mental disease are matters of fact.”26 In State v. Pike (1865) and State v. Bartlett (1869) the same Court corrected the “great error” of requiring defendants to prove insanity.27 The McNaughtan rules were increasingly honored in the breach such that, by 1945, in Holloway v. United States, the “rules” are the subject of caricature. Modern science, declared the Court,

has no place for … a separate little man in the top of one’s head called reason whose function it is to guide another unruly little man called instinct, emotion or impulse in the way he should go.28

Nonetheless, in most jurisdictions the controlling criminal statutes well into the twentieth century in the United States and elsewhere commonly held to “right-wrong” as well as notions of the “irresistible impulses” on which Erskine had focused in Hadfield.

(p. 33) On the significant question of burden of proof in the matter of insanity, the US Supreme Court decided the question as early as 1895 in Davis v. United States. Justice Harlan noted that the controlling dicta had been laid down in McNaughtan and repeated often in British and American cases. But what had not been settled was whether the test to be met was one of preponderance of evidence or the sterner test of proof beyond reasonable doubt. The influential Massachusetts Supreme Court tended to impose the heavier burden on the government. The Harlan Court moved in the same direction, ruling that the defendant is entitled to acquittal if “upon all the evidence there is reasonable doubt.” On the question of who bears the burden of proof, the Court ruled that it is the State’s burden to prove, “that the accused, whose life it is sought to take under the forms of law, belongs to a class capable of committing crime.”29

Harlan’s rationale is that a successful insanity defense is tantamount to a finding of not guilty, whereas the failure of that defense yields a guilty verdict. As it is not a defendant’s burden to prove his or her innocence, it should not be a defendant’s burden to establish insanity. From 1895 until quite recently Harlan’s reasoning guided Federal courts and imposed on the State the burden of adducing positive proof of sanity where the insanity defense was successfully raised. However, in the wake of the trial of John Hinckley, who was acquitted of all charges connected with his assault on President Reagan and members of the President’s entourage, Congress proceeded to revamp the Federal laws pertaining to the insanity defense. In the process and building on earlier cases, the Insanity Defense Reform Act (IDRA) of 1984 established insanity as an affirmative defense to be proved by the defendant by clear and convincing evidence. The question of the extent to which mental disorders are mitigating has had a comparably varied history. A half-century ago great attention was given to the opinion delivered by Judge Bazelon in Durham, in which, following Isaac Ray, the “fallacious” nature of the right-wrong test was underscored and current legal notions of insanity duly recognized as having “little relation to the truths of mental life.”30 Judge Bazelon’s opinion is as good an example of judge-made law as one is likely to find. Neither Isaac Ray nor the judge could point to actual discoveries or relevant scientific data that would rule out the right–wrong test of moral judgment as an integral aspect of “the truths of mental life.” What was settled in Durham was that diagnostic categories such as “psychopath” and “sociopath” were acceptable for the defense of insanity, and that the traditional tests were no longer binding. In words substantially similar to those Justice Shaw had used in instructing the jury in Rogers, the Court in Durham found that “an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.” The year before Durham, Britain’s Royal Commission on Capital Punishment had issued its own influential report, concluding that,

The gravamen of the charge against the M’Naghten Rules is that they are not in harmony with modern medical science, which, as we have seen, is reluctant to divide the mind into separate compartments.31

The reasoning in Durham was found on further reflection to create more problems than it solved. In a number of pivotal cases Federal Appeals courts found the Durham principle (p. 34) to be unworkable, especially in light of the wide disagreements by experts in such cases. As (then) Judge Warren Burger complained, “No rule of law can possibly be sound or workable which is dependent upon the terms of another discipline whose members are in profound disagreement about what those terms mean”.32

The remedies for Durham were sought by the same Federal Appeals Court that had heard Holloway, Durham, and Blocker, the Court in Brawner33 coming to adopt standards that had been developed by the American Law Institute (ALI) in its Model Penal Code and identified as the Brawner standard:

A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law.

Still other standards have come to modify or replace Brawner. The 1984 Comprehensive Crime Control Act recovered the very “right–wrong” test so roundly condemned by the experts of a century ago. Utah, Idaho, and Montana eliminated the insanity defense altogether, the balance of the states being roughly divided in adopting either Brawner or McNaughtan.

There have been other proposals to suspend the search for precision in specific cases and to adopt a form of categorical exemption from punishment. H. L. A. Hart concluded from the well-known failures to identify mental disorders with precision that it might be best to adopt a “coarser-grained technique” such as that which creates the class of legal infants.

The issues of exculpatory or mitigating evidence and burden of proof have raised perennial questions regarding the expert testimony and the validity of psychiatric and psychological assessments. The highest courts have moved in the direction of liberalizing the criteria to be applied to expert opinion-testimony. This is evident in the US Supreme Court ruling in Daubert v. Merrell Dow Pharmaceuticals.34 Though not pertaining to insanity or to psychiatry, Daubert is relevant to the matter of expertise in cases of insanity because it sets guidelines for Federal courts on such central issues as who is qualified and what is to count as relevant and reliable data. In Daubert a lower court had based its ruling regarding expert testimony on the so-called Frye standard as advanced in the 1923 case of Frye v. United States.35 According to this standard, scientific techniques or practices must be those that are “generally accepted” within the relevant scientific community. In Daubert the Court ruled that such a standard, “would be at odds with the … general approach of relaxing the traditional barriers to ‘opinion’ testimony.”

Writing for a unanimous Court, Justice Blackman wrote:

“Relevant evidence” is defined as that which has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” … The Rule’s basic standard of relevance thus is a liberal one.36

The question of mens rea continues to occupy practitioners and theorists both in law and psychiatry. Some, such as Barbara Wootton, would have the concept simply “wither away.” (p. 35) Or, following H. L. A. Hart, others would reserve the question to a time after conviction, and then to determine whether punishment or treatment is the proper course of action (Hart 1968; Wootton 1964). Others have argued for the defense of “Guilty but insane,” now applicable in a number of jurisdictions. These questions are likely to remain unsettled at the level of psychology and psychiatry for at base they are at once juridical questions beyond the range of scientific or technical solutions and metaphysical questions perhaps beyond the range of settled knowledge itself. The history of the insanity defense displays the same oscillations found in philosophy’s ageless engagement with the free will–determinism conundrum and it would be unrealistic to assume that psychiatry might offer a conclusive argument capable of settling a metaphysical dispute. It would appear that such matters, for better and for worse, are provisionally settled in the court of common sense which is guided but seldom ruled by an expertise both real and imagined.


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(1) A fuller discussion of this history is the author’s Wild Beasts and Idle Humours: The Insanity Defense from Antiquity to the Present (Robinson 1996).

(2) This limitation is offset to some extent by the tendency in Islamic countries and in China to follow the rationale and often the very letter of Western law in addressing such cases. For an examination of Islamic law in this connection, see Chaleby (2001). Chapter 20 considers the insanity defense as understood in Islamic law. China’s legal system is relatively young. Cases involving mental disorders have been recently discussed by Guo (2010).

(3) See also Trevor Saunders’ study of Plato’s analysis of insanity and its medical and conceptual dimensions (Saunders 1991).

(4) For further discussion see Harrison (1968, pp. 138ff). See also the discussion of Greek law as it applied to the elderly in Garland (1990, pp. 261ff).

(5) The Twelve Tables are available online at: <>.

(6) The treatise itself was probably composed between the fourth and third centuries bc and is fully consistent with the teachings of the Hippocratic school.

(7) Quoted material is from Drew (1973). This discussion is also indebted to Dr. Drew’s Introduction to the volume and to the Foreword by Edward Peters.

(8) The relevant records were kept at St.Bertin and were composed apparently by a number of chroniclers. See Nelson (1991).

(9) For detailed studies of these influences see Horden (2008).

(10) Thomas Aquinas, Summa Theologiae, Q. 43, Art. 2. It should be noted that a jurisprudential context for Thomas’s own efforts was already in place at least as early as the middle of the twelfth century. In his chapter on “The age of mixed jurisprudence,” Charles Radding discusses the remarkable Expositio of this period as evidence of the revival of jurisprudence. The work “situates the study of law into the tradition of the liberal arts” (1988, p. 129), as the expositor proceeds to list and interpret Lombard law.

(11) A thorough and informing study of the trial of Elizabeth Jackson, together with Edward Jorden’s Discourse in which a decidedly psychiatric interpretation of the victim’s vexations is offered, is Witchcraft and Hysteria in Elizabethan London: Edward Jorden and the Mary Glover Case (MacDonald 1991).

(12) Matthew Hale, The History of the Pleas of the Crown, edition of 1778. Published from the original manuscripts by Sollom Emlyn. The first publication of Hale’s papers was ordered by the House of Commons on November 29, 1680. It went through many editions.

(13) 6 State Trials. 687 (1665).

(14) Rex v. Arnold, 16 Howell’s State Trials 695 (10 George I. ad 1724).

(15) Rex v. Arnold, 16 Howell’s State Trials 695 (10 George I. ad 1724): 754–765.

(16) Cartwright v. Cartwright, 1 Phillimore Ecc. 90.

(17) Cartwright v. Cartwright, 1 Phillimore Ecc. 90, at 121.

(18) Rex v. Hadfield. 40 George III. ad 1800. In Howell’s State Trials, Vol. XXVII, 1820; 1281–1356.

(19) Rex v. Hadfield. 40 George III. ad 1800. In Howell’s State Trials, Vol. XXVII, 1820; 1310.

(20) Rex v. Hadfield. 40 George III. ad 1800. In Howell’s State Trials, Vol. XXVII, 1820; 1310.

(21) DANIEL M’NAGHTEN’S CASE, House of Lords Mews’ Dig. i. 349; iv. 1112. S.C. 8 Scott N.R. 595; 1 C. and K. 130; 4 St. Tr. N.S. 847; May 26, June 19, 1843. Richard Moran was able to establish this as the correct spelling (Moran 1981).

(22) The first edition of this work (1845) was immediately accepted as authoritative.

(23) State v. Jones. 50 New Hampshire 369.

(24) The complete account of this trial is found in Bigelow and Bemis (1844). Isaac Ray would discuss this trial in an article in the Law Reporter in 1845, reprinted in his anthology, Contributions to Mental Pathology. Boston, MA: Little, Brown, 1873. Ray said of this case that, “No criminal trial in this country, in which insanity was pleaded in defence, has become more widely known and been oftener cited than that of Abner Rogers” (p. 210).

(25) Henry Maudsley would remark that, although initially docilely following the lead of British jurists, recent decisions in the United States constituted a marked advance on anything that been settled to date in England (Maudsley 1876, pp. 100ff).

(26) Boardman v. Woodman. 47 New Hampshire 120 (1869); State v. Jones. 50 New Hampshire 369 (1872); p. 139.

(27) State v. Pike. 49 New Hampshire 399 (1872); State v. Bartlett. 43 New Hampshire 224.

(28) Holloway v. United States. 326 U.S. 687 (1945).

(29) Davis v. United States. 160 U.S. 469; 40 L. Ed. 499; 16 S. Ct. 353.

(30) Durham v. United States. 214 F. 2d 862 (1954).

(31) Royal Commission on Capital Punishment Report (Cmd. 8932), 1953; p. 113.

(32) Blocker v. United States. 274 F. 2d 572 (1959); Blocker v. United States. 288 F. 2d 853 (1961).

(33) United States v. Brawner. 471 F. 2d 969 (1972), establishing the “Brawner” standard.

(34) 113 S. Ct. 2786, 1993.

(35) 54 App. D.C. 46, 47, 293 F. 1013, 1014.

(36) 113 S. Ct. 2786, 1993.