The principal legal interest • in the sub ject of hypnotism arises out of the question, whether, and if so to what extent, crime may be induced by hypnotic suggestion, or the will Of the hypnotic subject sufficiently controlled to enable the hypnotizer to obtain the unconscious execution of papers such as wills or promises to pay money, without knowledge or consciousness on the part of the subject. Though the existence of this forte cannot be questioned, it has been the subject of extended discussion, much of which is unprofitable and often based upon newspaper reports of legal proceedings which have proved to be entirely untrustworthy. The sensational character of much that has been written on the subject, even in influen tial legal journals, has tended to obscure the questions which really require consideration both by courts and by the legislature. These questions are carefully considered in an ar ticle on Hypnotism and the Law in 13 Med. Leg. J. 47, one on the same subject, 95 L. T. 500, and another on Hypnotism in the Crim inal Courts, 13 Med. Leg. J. 351. The first article is based mainly on the answers re ceived from leading scientists to four ques tions as follows : (1) Can crime be commit ted by the hyponotizer, the subject being the unconscious and innocent agent. and instru: ment? (2) If the subject is unconscious, and even unwilling, has the hypnotizer such power and domination over the hypnotized as would control action to the extent of the commission of a crime? (3) Is it certain or possible to remove by hypnotic suggestion from the mind of the subject all memory of acts or occurrences which happen in the hypnotic state? (4) Would it be possible for a hypnotizer so to control a hypnotized subject as, for example, to make him sign (o) a will in the presence of third persons, declare it to, be his will, and request them to sign their names as witnesses, without sub sequent consciousness of the occurrence ; ,(b) or a note of hand or a check? The answers to these questions show a very decided difference of opinion among American scientific men who have , given special attention to the subject, and the same difference appears to exist in a marked degree in European thought. It is impos sible as yet to state any satisfactory con clusion from this diversity of opinion, and there has as yet been no recognition of the subject by the courts, notwithstanding the amount of discussion in the press,—much of it thoughtless and unprofitable,—of cases popularly, though erroneously supposed to touch the question of the procurement of crime by hypnotic suggestion. In spite of this difference, however, and leaving the questions above quoted to be answered by further investigations, so far as they may be, there is a practical question much mooted as to the necessity or propriety of any recogni tion of hypnotism by the law and of its legal regulation, at least to the extent of forbid ding public exhibitions of it, or its use ex cept by those skilled in the science to which it may be a legitimate adjunct; and even as to whether its use by physicians and sur geons may not be a proper subject of legal regulation. Another question raised is whether hypnotism is a justifiable inquisito rial agent. Such use of it is said to be per mitted under the law of Holland ; 95 L. T. 500; and it is quite possible that in countries accustomed to the inquisitorial character of investigations of crime, as in continental Eu rope, it may be thought proper. It may be assumed that it would be so entirely foreign to American and English ideas as to be un likely to receive serious consideration in either country.
The consensus of medical opinion would seem to be in favor of regulation. The committee of the British Medical Associa tion, in the report above quoted, stated that they had "satisfied themselves of the gen uineness of the hypnotic state," and that dan gers may arise in its use "from want of knowledge, carelessness, or intentional abuse, or from too continuous repetition of sug gestions in unsuitable cases." And the con clusion was that, when used for therapeutic purposes, it should be confined to qualified medical men, and under no circumstances employed for female patients except in the presence of a relative or a person of their own sex. The report also expressed strong
disapproTal of public exhibitions of hypnotic phenomena, and a hope that some legal re strictions may be put upon them; 11 Med. Leg. J. 73. A report of a similar committee of the American Medico-Legal Society sug gested the legal questions involved in the subject of Hypnotism and evoked a general discussion which may be found in 8 Med. Leg. J. 263, 353 ; 13 id. 47, 351. These ref erences are valuable only to direct the in quirer to the variety and contrariety of opin ion upon the subject. One of the best consid ered discussions from a legal point of view will be found in the paper on the forensic aspect of hypnotism in 3 Am. Lawy. 534, in which the writer, after carefully considering the cases with which hypnotism has been connected in the popular mind, reaches the conclusion that it has no place in the law. He contends that the person hypnotized can not be compelled to commit an act which is repugnant and offensive to his sense of mor ality or, as in case of signing a will, opposed to his instinct of self-preservation, although, under its influence, he may do many things inconsistent with his reason. This writer further considers that the mind of the pa tient while in a hypnotic state is clear as to what he is doing and his acts are performed in pursuance merely of a desire to please the hypnotizer. The restriction of its use to physicians is disapproved on the ground that, as a class, medical practitioners are not more familiar with its use than are any other class of scientists, and it would be unsafe for the legislature tO assume the existence of a monopoly of virtue among medical men.
A very decided inclination towards the views thus summarized will be found among legal minds directed to the subject, as also a very weighty, if not the preponderance of, scientific opinion. The view that the com mission of crime cannot be procured by hyp node suggestion unless in the case of a per son whose moral character is such that he might do the act in a normal state, will be found well reasoned and stated in a paper on Hypnotism and Crime; 13 Med. Leg. J. 240, to which reference may be made for authori ties and opinions of great value. Dr. Cocke, an investigator of recognized authority, con cludes that there are few cases in which the hypnotized subject will not refuse to do a wrong act or to submit to a wrong, no mat ter *if it be suggested ; 18 Crim. L. Mag. 100.
Considering the vast amount of discussion which this subject has evoked, it is surpris ing to find upon bow slight a basis of actual legal proceedings it rests. Cases seriously discussed are found upon examination to have no connection with the subject.
Two cases in Europe have been much commented on in connection with hypno tism. The first of these, the Bompard case, excited such wide attention that the main facts of it are generally understood and the details of it were much confused by the theatrical accessories to the trial in the French courts. The effort was made to show that a murder was the result of hyp notic suggestion, and it is believed to be the general impression of those who have examined the case that that was, to a greater or less extent, an element in the crime. The character of the trial, how ever, greatly lessens its value as a factor in reaching conclusions either valuable or ac curate. ' There was also so wide a differ ence of opinion among the experts that it has been very truly remarked: "This trial not, -therefore, clear the air of the dif ficulties of the medico-legal inquiry, whether crime can he committed by the suggestion of the hypnotizer, of which the subject is the innocent and also unconscious actor ;" id. 1 353. For report of the case see Annales d'Hygiene Publique et de Medecine L6gale, III Serie, tome V. (Paris 1881) p. 214; Jurid. Rev. Jan. 1890; see also Int. Cyc. N. Y. 1893, p. 763. Considerable research has failed to discover any other case involving the direct question.