The Albany Law Journal. ALBANY, APRIL 20, 1895. Current Topics. [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] NSANITY has been so frequently pleaded INSA that it is very seldom a successful defense for murder; but hypnotism seems to be the coming plea of weak-minded imbeciles, who many times place human life at a smaller value than a few paltry dollars. It is not to be presumed from this that the theory that the world would be better off without feeble-minded individuals is advanced, though the Spartan eradication of feeble-minded, ill-formed offspring had its beneficial results on the race, and it is certain that restrictions by the State on marriages of those who are more or less tainted with insanity, would in the end work much good for American society. Nevertheless, in the eyes of the law, such persons have a right to plead insanity or hypnotism, but in respect to the latter, it is certain that the hypnotizer is morally and legally responsible for the commission of the crime. The first case on record in which a person who used the hypnotic influence on another to cause him to commit a crime, and in which conviction has followed, is the case of Anderson Gray, of Topeka, Kansas, who was found guilty by a jury, whose finding was confirmed by the Supreme Court of the State. The defendant, it was shown, desired to retain certain money and property which had come into his possession. This he was prevented from doing by the assistance of a witness to the transaction. Anderson Gray, the defendant, a wealthy farmer of Kansas, hired one Thomas McDonald to work on his farm, and found that he could exercise the hypnotic influence over him, and by means of this power he directed McDonald to shoot the only person who stood between him and the retention of the money and property, though he was a considerable distance away from the scene of the murder, and there retained his hypnotic influence over the unfortunate victim of his VOL. 51 No. 16. power. McDonald acknowledged having committed the deed, and after describing the hypnotism which the defendant exercised over him, and the way in which the deed was committed, was found guiltless by the jury. One of the most remarkable features of the proof of this influence and one which does not seem to accord with the authorities on the subject, was, that McDonald, while in a normal state, related the story of the crime in the same manner as he did while under hypnotic influence of certain persons who were called in to demonstrate the existence of this mysterious power. The conviction of Gray, his employer, is the first case in which a hypnotizer has been convicted by a jury, though many cases have arisen where pleas of this nature have been entered, especially in Holland and France, and in this country, in Eau Claire, Wisconsin, and in the Meyer case in New York. The difficult part of the proof, when one person exercises such an influence over another, is that the hypnotized, when free from the influence, should not have mental volition to describe what he did, though some eminent writers contend that thoughts of his act remain in the mind of the hypnotized. In any event, the legal profession will be interested, undoubtedly, in the development of the theories in relation to hypnotism and the application of certain rules to the various cases which will without doubt arise from time to time. H. Merriman Steele, Esq., in the April number of the North American Review, very clearly states his theories on this subject, and is, to say the least, a little skeptical of the theory that the hypnotized can relate his actions when in a normal condition. He says: "As is now generally acknowledged, suggestion plays the most important role in hypnotism, and as the phenomenon of suggestion forms the basis for the following argument in this particular case, it may be well to review briefly what the word may exactly mean, by a short description of the mental attitude of the hypnotized immediately before and after the suggestion is given him by the hypnotizer. Ignoring for the present the particular case in point, the Minnesota murder, and omitting, also, the various manipulations for inducing the hypnotic sleep, we will begin by a consideration of the subject as he sits before us in the state generally described as the somnambulistic. Picture him, then, as immobile, deaf, dumb and blind to all except the words and acts of the operator. No voluntary act or word is ever manifest, and until suggestion is supplied by the operator he remains perfectly passive and seemingly incapable of any movement or activity whatsoever. He is absolutely without volition, being in a state ready for the fulfillment of any suggestion, and upon the nature of this suggestion will depend his subsequent act and speech. For illustration, let us imagine his brain extirpated while the cut ends of both sensory and motor nerve fibres are in connection with the nerve cells in the brain of the operator. Thus, we may explain his utter lack of volition and increased power of receiving suggestion. "Suggestion consists in giving thought to the subject for action or speech, and will power for its accomplishment. It may be communicated sing, to dance, etc., by word, or by gesture capable of interpretation by the subject into manifold activities. As the verbal suggestion alone concerns us, it only will be described. The subject is commanded by the operator to perform certain acts - to all of which he readily obeys. He is told he is an animal, and immediately he drops on all fours; he is handed a hot iron with the assurance it will not burn him; he grasps it without sensation; he is misinformed as to the name of his most intimate friend, and so tenaciously does he cling to the new name that his friend cannot undeceive him. And so on, through the long list familiar to all who have witnessed the hypnotized séance. But let us dwell a moment upon the spirit in which the subject performs these various acts. By the most superficial observer the intentness with which the subject responds to suggestion is noticeable. And well it may be, for nowhere out of hypnotism or disease is such concentration obvious. It is a concentration so or that it is a material alteration in them which causes their inhibition, for upon subsequent waking their normal functions are immediately restored. Every explanation based upon physiological ground is insufficient or errone ous. We have in the subject a simple, entire concentration of mental power, either for act or sensation, or for the cessation of one or both. So strong and undivided is this concentration that, beyond the carrying out of the suggestion itself, there is absolutely nothing else no sensory nor motor impulses, no thought nor will, no question as to the fitness of the suggestion nor attempt to do other than obey it. Moreover, in a good subject the obedience is complete and perfect. "Let me now recall briefly the entire lack of volition before suggestion, while the subject is in the somnambulistic state; also, be it understood, no matter how often the subject may be hypnotized, upon each succeeding sleep, just as soon as the somnambulistic state appears, all volition will certainly disappear. Without suggestion, the subject will remain absolutely passive, for, in short, he is robbed of his will, and incapable of any sign whatsoever of either physical or psychical power. His subsequent acts depend entirely upon suggestion and particular acts upon the nature of the particular suggestion." In reference to a case in Minnesota, Mr. Steele says: "With this brief résumé, I think we may turn to the case in point, the Minnesota experiment. At the very outset, however, we are confronted by a phenomenon so utterly unprecedented that I think it wise to notice it, although it does not enter into the argument of this paper, for the reason that it is ignored by the experts in Minnesota. We learn from the article in the newspaper that the accused tells a waking story of the murder committed while under hypnotic absolute and entire that it almost passes the influence. In my own experience, and that of boundaries of our conception. While acting an associate, I have never met with a subject under hypnotic suggestion, it seems as though who, upon waking, could remember or relate every atom of mental energy is used in the ful- any of the numerous actions performed while filling of that suggestion, whether it be sensory under hypnotic influence, nor can I find record or motor. For how else may we explain the of such a case in a tolerably wide reading in common phenomenon of insensibility to pain, the literature of hypnotism. But as the above etc.? It would seem scarcely possible that the fact is seemingly unnoticed by the experts in integral parts of the nerve fibres are disturbed, | Minnesota, we will, for the sake of my argu ment, consider the waking story of the murderer true- that he has committed the murder under hypnotic influence, and remembers the deed, with its detail. "The question now rises, If his story told under the second hypnosis agrees with his waking story, will that circumstance prove his waking story to be true? I do not think it will. Another conclusion might seem very reasonable, I admit, but in this second hypnosis are we to forget the immense power of suggestion? "Let us remember, upon the culmination of the second somnambulistic state we have a new subject in so far as volition goes. He is immobile, deaf, dumb and blind as the type quoted above. From the hypnotizer he must receive the impulse to talk, to tell his story, as would any new subject. He will volunteer nothing in word or act. Consequently we recognize he will not repeat the desired story, his waking story. Indeed, he will but sit passive, waiting the impulse his own mind cannot supply. Suggestion must now be given him by the experts to draw out his story, which may convict or acquit him. His whole mind will respond to that suggestion with the utter concentration I have above attempted to describe. This suggestion will govern and rule his thought, his speech, his story. If the suggestion from the experts bid him repeat the story of the crime, he will obey; if it bid him deny the deed, he will do so vehemently; if, in the progress of his denial, a new and contradictory suggestion is given, he will accept it and heartily accuse himself." On the principle that wicked men first practice law, and later go to the Legislature, it may be interesting to notice an article in the Law Times on "The Honest Lawyer; A Seventeenth Century Character Sketch." Abuse and contumely often bring proper sympathy, while too often we hear ill-advised and untrue criticism of a profession who, as a body, devote their lives to the development of the laws and regulations of society. No one, however, could take this sketch except in the nature of a farce, which, as such, is quite clever. The article is: "There is, I suppose, nothing so persistent as popular prejudice. The British public would probably find life unbearable without some na tional scape-goat to exercise their somewhat dull wit upon; and so we find that down through the ages lawyers have been abused as knaves, blood-suckers, cheats, rogues, rascals. Certainly the vituperative expressiveness of the English language owes much to this ancient feud between the people and the law. The attitude of lawyers amid this storm of detraction has, as a rule, been one of Christian submissiveness. The mens conscia recti has been their reward and consolation; not but that the material emoluments of the profession have also had their consoling power. Occasionally, however, one of the craft, more fiery than his brethren, girds himself up to repel the popular attack. I came across a curious pamphlet the other day by such an one, published in the year 1676, and entitled "The Character of an Honest Lawyer," in which he defends, in the quaint but vigorous style of his day, his profession against the unjust aspersions which were as common then as now. That amidst the legal flock wolves were to be found here and there he candidly admits; and, by way of providing men with some common standard by which to distinguish between good and bad, between the true lawyer and the traitor to his profession, he sets forth the following leading characteristics of honorableness in the profession of the law. "An honest lawyer," says our anonymous pamphleteer, "is the lifeguard of our fortunes, the best collateral security for an estate, a trusted pilot to steer one through the dangerous and ofttimes inevitable ocean of con tention. He is an invaluable anatomist of meum and tuum, that will presently search a cause to the quick, and find out the peccant humor, the little lurking cheat, though masked in never so fair pretenses; one that practices law so as not to forget the gospel, but always wears a conscience as well as a gown. He weighs the cause more than the gold, and if that will not bear the touch, in a generous scorn puts back the fee. Though he knows all the criticisms of his faculty, and the nice snapperados of practice, yet he never uses them unless in a defensive way, to countermine the plots of knavery; for he affects not the devilish skill of outbaffling rights, nor aims at the shameful glory of making a bad case good, but with equal contempt hates the wolf's study and the dog's elequence, and disdains to grow great by crimes, or build himself into fortune on the spoil of the oppressed or the ruins of widows and orphans. He has more reverence for his profession than to debauch it to unrighteous purposes, and had rather be dumb than suffer his tongue to pimp for injustice or club his parts to bolster up a cheat with the legerdemain of law craft."penses of his adversary, his solicitor's and barrister's fees included, as well as all costs of the cause, upon a scale fixed by law, and taxed, if not agreed upon between the parties, by the taxing master. This latter official is, therefore a very important attache to every court, and commands alike the respect of suitor's counsel and their attendants. His power to trim down bills of costs makes him a veritable autocrat. A law suit is a very serious matter with our English brethren. They hesitate before inviting a legal contest, the adversaries' formidable bill of costs, consequent upon eminent legal talent, being in opposition, puzzles the will and bids a pause, at least, sufficient to cool the superheated blood, and restore equanimity of disposition, so that the process of reasoning may not be obstructed or turned away by passion. Being cast in a law suit to many a man of more than moderate means has resulted in financial ruin. *** "When he undertakes a business he espouses it in earnest, and does not follow the cause, but maintains it. A mollifying letter from the adversary's potent friend, a noble treat, or the remora of a lusty present to his wife, have no influence to make him slacken his proceedings, for he is so zealous for his client's interest that you may sooner divorce the sun from the ecliptick than warp him from his integrity. As his profession is honorable, so his education has been liberal and ingenious, far different from that of some jilting pettifoggers and purse-milking law-drivers, whose breeding, like a cuckoo's, is in the nest of another trade, where they learn wrangling and knavery enough in their own causes to spoil those of other men, and with sweetened ingredients of mechanical fraud appoint themselves (though simple enough) fit instruments for any villainy. But his greener years were seasoned with literature, and he can give better proof of his university learning than reckoning up the colleges and boasting his name in the buttery book. He is skilled in other languages besides declaration-Latin and Norman gibberish; he read Plato and Tully before he saw either Littleton or the statute book; grounded in the principles of nature and customs of nations, came (lotis manibus) to the study of our own municipal law, which he found to be multorum annorum opus, and therefore employed his time better at the Inns of Court than in hunting after new fashions, starting fresh mistresses, haunting the play-house or acquiring the other little town accomplishments which render their admirers fine men in the opinion of fools, but egregious fops in the judgment of the wise." "In his studies he traffics not only with the inventory of abridgments and diminutive collectors in Decimo Sexto, but draws his knowledge from the original springs, digests the capital body of the law in a laborious and regular method, he especially aims to be well versed in the practice of every court, and rightly to * * * understand the art of good pleadings; he pursues the Year Books and the Responsa Prudentium with a heedy and reverent eye, delights to tread in the steps of the ancient sages, and thinks it is best sailing by known and experienced landmarks, and therefore uses precedents, not as refuges of ignorance, but as safeguards of wisdom." "He never goes about to baulk any evidence with a multitude of sudden interrogatories, nor maintains any correspondence with the Knights of Alsatia or Ram-ally-Vouchers; he can prosecute a suit in equity without seeking to create a whirlpool, whether one order shall beget another, and the poor client be swung round (like a cat before execution), from decree to re-hearing, from report to exceptions, and vice versa, till his fortunes are shipwrecked and himself drowned for want of white or yellow earth to wade through on." "Whilst he lives he is the delight of the court, the glory of his profession, the patron of innocency, the upholder of rights, the scourge of oppression, the terror of deceit and the oracle of his country; and when death calls him to the bar of Heaven by a habeas corpus cum causis, he finds his judge, his advocate, nonsuits the devil, obtains deliverance from his infirmities, and continues still one of the long robe in glory." Such is the honest lawyer as he appeared to a contemporary observer two centuries ago. Since those days great changes have taken place in the form and practice of the law, and the types of legal character have undergone a corresponding change. But human nature is always interesting, and in this dull age one may find both interest and profit in looking back upon this caustic and vigorous charactersketch of the seventeenth century. "There are many advantages to the legal profession growing out of the system of taxing costs. Disputes as to the amount all occur be fore the taxing master, and are there settled, and the amount included as part of the judgment, upon which execution is issued. The items of charges are comparatively small, but the profession in England do not work and take no steps, either in a law suit or in office practice, without making some charge therefor; consequently the bills of costs are always composed of many items, the last of which is a charge, at so much per folio, for making out the bill of costs, and the taxing master's fee is also taxed as part of the costs. A writ of summons in England is prepared in the lawyer's office, stamped at the central office, and served by a clerk, service proved by his affidavit. Return day of the writ is eight days from the day of service. An action can be stayed by the defendant paying the amount of the claim and costs, which are set forth in the writ, to the plaintiff or his solicitor within four days of service. If the defendant does not put in his appearance before the return day, judgment is entered by default. A full and plain statement of plaintiff's claim is made upon the writ, which stands as the basis of his declaration, and the defendant pleads by stating concisely, and without any of the formalities of common law pleading, his defense, to which the plaintiff joins issue by a terse reply, and the cause stands for trial by the court unless a jury is specially demanded. A "In a Queen's Bench cause against a Chicago citizen, involving about $970, had the claim been paid within the four-day limit after the service of the summons, it could have been settled by the payment of $12.50 and costs. defense was interposed and a trial had before the court in London, without a jury, and a judgment for the amount of the claim and $166 costs obtained, and this judgment and costs was sent to me for collection, and is now evidenced by a judgment in our Circuit Court against the defendant." Comparing the costs in the English suit with another in New York, Judge Holdom said: "In a case that came under my observation, involving a recovery of $2,600 for breach of contract, the costs were taxed against the defendant at $386.41. Litigation in New York city, taking into consideration its population and the vast ramifications of its commerce, trade and finance, as the great port of entry in this country, and the financial center of this great continent, is not as great-no, not near so great as litigation in Chicago; and why is this so? In my humble opinion, because ten dollars to the clerk and seventy-five cents to the sheriff does not constitute all the financial resource necessary to instigate a legal proceeding. There must be financial responsibility for costs, guaranteed by a bond, if plaintiff's responsibility for costs is challenged. "In Illinois, a few dollars and an easy-going lawyer is all that is necessary to set in motion the machinery of the law in behalf of the most frivolous and unfounded claim. I know of a litigation over a valuable piece of unimproved real estate, which was started by a set of as unprincipled and worthless fellows as ever came into this jurisdiction, totally irresponsible, morally and financially, and whose claim of title was a pure and unadulterated fabrication. The most eminent real estate lawyers at this bar were at one time and another in this case; some of them have since adorned the bench of our local courts. In one way and another this suit, or rather series of suits, lasted upwards of twenty years, during all of which time the |