696

UNNATURAL OFFENCES.

The opinion given was in conformity with that of Ferguson, namely, that the perpetration of the act during a state of natural sleep was contrary to all probability. The remarks already made in reference to rape during sleep may be applied with greater force to acts of this nature (p. 687, ante). If this crime is committed on a boy under fourteen years it is felony in the agent only; and the same, it appears, as to a girl under twelve. (Archbold, p. 409.) The act must be in the part where it is usually committed in the victim or associate of the crime.

Sodomy is commonly understood to signify unnatural intercourse between man and man, while bestiality (buggery) implies unnatural intercourse with animals. Continental medical jurists have invented a new term, Pederastia (raidos ipaoris, pueri amator), comprising those cases, not unfrequent, in which boys at about the age of puberty are made the victims of the depraved passions of men; but this term is not applicable to the crime committed by and between adults. The medical aspects of this subject have been fully examined by Tardieu (Attentat aux Mœurs); also by Toulmouche (Ann. d'Hyg., 1868, t. 2, p. 121) and by Penard (Ann. d'Hyg., 1860, t. 5, p. 367). The symptoms indicative of this unnatural intercourse both in agent and patient are fully described by these writers. Casper has also dealt with this crime and the medical evidence required to prove it. (Gerichtl. Med., Bd. 2, p. 176.)

The facts are commonly sufficiently proved without medical evidence, except in the cases of young persons, when marks of physical violence will in general be sufficiently apparent. In some instances proof of the perpetration of the crime may be obtained by resorting to microscopical evidence. Stains upon the linen of young persons may thus furnish evidence that the crime has been attempted if not actually perpetrated.

Unless an examination is made soon after the perpetration of the crime, the signs of it will disappear. In the case of one long habituated to these unnatural practices, certain changes have been pointed out as medical proofs among them a funnel-shaped state of the parts between the nates, with the appearance of dilatation, stretching, or even a patulous state of the anus and a destruction of the folded or puckered state of the skin in this part. There may be also marks of laceration, cicatrices, etc., and sometimes evidence may be derived from the presence of syphilitic disease. This condition of parts would represent the chronic state induced by these practices in the patient or succubus. In the recent or acute form, fissure and laceration of the sphincter ani, with bruising and effusion of blood, will be found.

Trials for sodomy and bestiality are very frequent, and convictions of men and boys have taken place for unnatural intercourse with cows, mares, and other female animals. Medical evidence is seldom required to sustain the prosecution. There may be, however, circumstances which can only be properly interpreted by a scientific expert. The hair of the animal may be found on the perpetrator, or marks of blood or feculent matter upon his dress, and in such cases chemical analysis or the microscope may enable a witness to express an opinion in proof or disproof of the charge. In one case, where a man was charged with having had unnatural intercourse with a cow, the prosecution was able to show that some short. colored hairs found on the prisoner's person resembled those of the animal. In another case (Reg. v. Brinkley, Lincoln Ass., April, 1887), the editor found the peculiar colored hairs of a mare upon the prisoner's clothing and spermatozoa on his trousers. False charges of sodomy are frequent, and are made for the purpose of extortion.

UNNATURAL OFFENCES.

697

A question may arise here respecting the examination of an accused person, which has already been considered in reference to women charged with infanticide. The examination should be with the consent of the accused, and not made against his will, since no one is bound to furnish evidence against himself (see ante). (In reference to the evidence derivable from the hair of animals, see Vierteljahrsschr. für Gerichtl. Med., 1865, 1, 160.)

698

DEFINITIONS OF INSANITY.

INSANITY.

CHAPTER LXI.

WHAT IS INSANITY?-MEDICAL DEFINITIONS.-DISTINCTION OF SANE FROM INSANE PERSONS.-MORAL INSANITY.-LEGAL DEFINITIONS.-" NON COMPOS MENTIS."-SYMPTOMS OF INCIPIENT INSANITY.-HALLUCINATIONS AND ILLUSIONS.-LUCID INTERVALS.

What is Insanity? Medical Definitions.-The terms "insanity," "lunacy," "unsoundness of mind," "mental derangement," "madness, " and "mental alienation or aberration," have been indifferently applied to those states of disordered mind in which a person loses the power of regulating his actions and conduct according to the ordinary rules of society. In all cases of real insanity the intellect is more or less affected-hence the term intellectual insanity. In a medical sense this implies a deviation of the mental faculties from an assumed normal or healthy standard. In an insane person, his language and habits are changed the reasoning power which he may have enjoyed in common with others is lost or perverted, and he is no longer fitted to discharge those duties which his social position demands. Further, from perversion of reason, he may show a disposition to commit acts which may endanger his own life or the lives of those around him. It is at this period that the law interferes for his own protection and for that of society.

Many attempts have been made by psychologists to define insanity; but the definitions given are so imperfect that it would be difficult to find one which includes all who are insane and excludes all who are sane. The difficulty is fully accounted for by the fact that mental disorder varies in its degree as well as in its characters; and the shades of disordered intellect in the early stages are so blended as to be scarcely distinguishable from a state of insanity. It is this twilight condition of the mind, when it is fluctuating between sanity and insanity, which no definition can comprise, especially as the mind differs in its power and manifestations in most persons, and it is therefore difficult to fix upon a standard by which a fair comparison can be made. The vulgar notion of insanity is that it consists in an entire deprivation of reason and consciousness; but the slightest acquaintance with the insane proves that they are not only perfectly conscious of their actions in general, but that they reason upon their feelings and impressions. Abercrombie considered insanity to consist in a loss of the faculty of attention that power by which we are capable of changing, controlling, arresting, or fixing the current of our thoughts. Conolly regarded it as a disorder of the power of comparison or judgment, and Marc as a loss of the faculty of volition; so that, in the latter point of view, the acts of the insane are in a certain sense involuntary, and depend upon impulses which, owing to mental disease, they are unable to control. This view is now largely held by alienists.

These definitions are defective, inasmuch as they are not adapted to the

various forms of the disease. Etymologically, the term implies the negation of something, and not a positive state (Orange). In some cases of insanity, as in confirmed idiocy, there is no evidence of any exercise of the intellectual faculties; but in most instances these faculties and the moral feelings are partially diseased or partially destroyed, in every variety and degree. Thus we may meet with cases in which the faculties of attention, comparison, and volition are more or less impaired or absent, or, if present, they are never perfect, although each may not be equally affected. When no two cases are precisely similar, no definition can include all varieties of the disorder. A medical witness who ventures upon a definition will therefore generally find himself involved in numerous inconsistencies, for no words can possibly comprise the variable characters which this malady is liable to assume. Savage is of opinion that no standard of sanity, as fixed by nature, can under any circumstances be considered definitely to exist. (Insanity, p. 1.) Bucknell defines insanity as a disease of the brain affecting the integrity of the mind, whether marked by intellectual or emotional disorder; whilst Maudsley considers it to be a disorder of the supreme nerve-centres of the brain-the special organs of mind. It will be observed that these definitions include something more than mere intellectual insanity. Those who take an interest in definitions of insanity and who think they can defend them from the critical acumen of lawyers, will find them set forth in their medical and medico-legal aspects in a paper by Rorie. (Edin. Month. Jour., 1865, ii. p. 13.) [Dr. Buckham quoted a large number in his work on Insanity. The largest collection yet published, doubtless, is that by the editor of the Medico-Legal Journal, and contained in the several volumes of that work: Vid. vol. 4, pp. 346-436; vol. 5, pp. 65-211-323-459; vol. 6, pp. 101–203 -314; vol. 7, p. 528.] There are, however, cases in which a medical man may find himself compelled, if not to define insanity, at least to draw some clear distinction between a sane and an insane person. Thus in cases in which there has been an alleged breach of the law regarding the custody of lunatics, it may be pleaded that the person is sane, and a medical expert must then be prepared to say whether the person concerning whom the question is raised is idiotic, lunatic, or of unsound mind and to assign satisfactory reasons for his opinion.

Moral Insanity. In addition to that form of insanity in which the mind is affected, known as intellectual insanity, Prichard and other medico-legal writers have described a state which they call moral insanity (mania sine delirio), which is manifested simply by a perverted or disordered state of the feelings, passions, and emotions, irrespective of any apparent intellectual aberration. There are no hallucinations or illusions, and there is no evidence of delusion, but simply a perversion of the moral sentiments. Thus it is alleged that this form of insanity may appear in the shape of a causeless suspicion, jealousy, or hatred of others, especially of those to whom the affected person ought to be attached; and it may also manifest itself under the form of a wild, reckless, and cruel disposition towards mankind in general. It does not seem probable, however, that moral insanity, as thus defined, ever exists or can exist in any person without greater or less disturbance of the intellectual faculties. The mental powers are rarely disordered without the moral feelings partaking of this disorder; and conversely, it is not to be expected that the moral feelings should become to any extent perverted without the intellect being affected, for perversion of moral feelings is generally observed to be one of the early symptoms of disordered reason. The intellectual disturbance may sometimes be difficult of detection; but in every case of

700

LEGAL DEFINITIONS OF INSANITY.

true insanity it is more or less present, and it would be a highly dangerous practice to pronounce a person insane when some evidence of its existence was not forthcoming. The law does not certainly recognize moral insanity as an independent state; hence, however perverted the affections, moral feelings, or sentiments may be, a medical jurist should always look for some indications of disturbed reason. Medically speaking, there are, according to Prichard, two forms of insanity, moral and intellectual; but in law, apparently, there is only one-that which affects the mind. Moral insanity is sometimes admitted as a bar to responsi bility for civil or criminal acts, when accompanied by intellectual disturb ance. Mayo denied its existence and contended that no abnormal state of mind should confer irresponsibility unless it involves intellectual as well as moral perversion. (Med. Testimony, p. 69.) Brodie also considered that there are no reasonable grounds for admitting this to be an independent form of insanity. There has been, as he suggests, much mystification on the subject. The term has been applied to cases in which the name of insanity ought not to have been applied at all, i. e. to “moral depravity," and also to cases in which delusions have really existed, and which might therefore have been more properly classed with cases of ordinary mental aberration. (Psych. Inquiries, p. 99.) Others, however, stoutly contend for its legal recognition.

[There has been a conflict of opinions and decisions of the courts as to moral insanity. Some confusion has arisen as to what constitutes and what has been recognized by the courts as moral insanity. Mere beliefs, opinions, or prejudices, unless involving some insane delusion, do not constitute moral insanity. Opinions as to the moral quality of acts, unaccompanied by delusions which subvert the will and reason and dominate the conduct, do not constitute moral insanity. Moral perversity is not moral insanity. Moral insanity, as recognized by the courts, involves either a disorder of the brain which affects the moral faculties, or produces an inability to discriminate between right and wrong, which has, as a disease of the brain, proceeded so far as to destroy the reasoning faculties of the mind and impair or destroy the volition. This has had judicial recognition in American courts: Com. v. Moster (GIBSON, C. J.), 4 Pa. St. 266; Forman's Will, 54 Bar. 274; Boswell v. The State of Alabama, 307; Wharton Hom., § 574; St. Louis Mut. Life Ins. Co. v. Graus, 6 Bush. 268; Anderson v. The State, 43 Conn. 515; Buswell on Insanity, § 12; Ray's Contributions to Mental Pathology, 115; per contra, State v. Spencer, 1 Zab. 196.]

Of one fact we may be well assured: if in these cases of alleged moral insanity there is no indication of a perversion of intellect, medical evidence is not required to determine the degree of responsibility in reference to such persons. Those who administer the law, and any man endowed with plain common sense, will be as well qualified as a medical expert to decide the question of criminal responsibility. Further, until medical men can produce a clear and well-defined distinction between moral depravity and moral insanity, such, a doctrine, employed as it has been for the exculpation of persons charged with crime, should be rejected as inadmissible.

Legal Definitions. The law of England recognizes two states of mental disorder or alienation: (1) Dementia naturalis, corresponding to idiocy; and (2) Dementia adventitia, or accidentalis, signifying general insanity as it occurs in persons who have once enjoyed reasoning power. To this state the term "lunacy" is also applied, from an influence formerly supposed to be exercised on the mind by the moon and still believed