How can we know what someone else is thinking or feeling, let alone prove it in court? In his 1863 book, A General View of the Criminal Law of England, James Fitzjames Stephen, among the most celebrated legal thinkers of his generation, was of the opinion that the assessment of a person’s mental state was an inference made with “little consciousness.” In a criminal case, jurors, doctors, and lawyers could watch defendants—scrutinizing clothing, mannerisms, tone of voice—but the best they could hope for were clues. . . . Rounding these clues up to a judgment about a defendant’s guilt, or a defendant’s life, was an act of empathy and imagination. . . . The closer the resemblance between defendants and their judges, the easier it was to overlook the gap that inference filled. Conversely, when a defendant struck officials as unlike themselves, whether by dint of disease, gender, confession, or race, the precariousness of judgments about mental state was exposed.
In the nineteenth century, physicians who specialized in the study of madness and the care of the insane held themselves out as experts in the new field of mental science. Often called alienists or mad doctors, they were the predecessors of modern psychiatrists, neurologists, and psychologists. . . . The opinions of family and neighbors had once been sufficient to sift the sane from the insane, but a growing belief that insanity was a subtle condition that required expert, medical diagnosis pushed physicians into the witness box. . . . Lawyers for both prosecution and defense began to recruit alienists to assess defendants’ sanity and to testify to it in court.
Irresponsibility and insanity were not identical, however. Criminal responsibility was a legal concept and not, fundamentally, a medical one. Stephen explained: “The question ‘What are the mental elements of responsibility?’ is, and must be, a legal question. It cannot be anything else, for the meaning of responsibility is liability to punishment.” . . . Nonetheless, medical and legal accounts of what it meant to be mentally sound became entangled and mutually referential throughout the nineteenth century. Lawyers relied on medical knowledge to inform their opinions and arguments about the sanity of their clients. Doctors commented on the legal responsibility of their patients. Ultimately, the fields of criminal law and mental science were both invested in constructing an image of the broken and damaged psyche that could be contrasted with the whole and healthy one. This shared interest, and the shared space of the criminal courtroom, made it nearly impossible to consider responsibility without medicine, or insanity without law. . . .
Physicians and lawyers shared more than just concern for the mind. Class, race, and gender bound these middle-class, white, professional men together, as did family ties, patriotism, Protestantism, business ventures, the alumni networks of elite schools and universities, and structures of political patronage. But for all their affinities, men of medicine and law were divided by contests over the borders of criminal responsibility, as much within each profession as between them. Alienists steadily pushed the boundaries of their field, developing increasingly complex and capacious definitions of insanity. Eccentricity and aggression came to be classified as symptoms of mental disease, at least by some.
