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Supreme Judicial Court of Massachusetts, January, 1845, at Boston. -- Matter of Josiah Oakes. A person who is insane, or delirious, may be confined, or restrained of his lib-erty, by his family, or by others, to such extent, and for such length of time, as may be necessary to prevent injury or danger to himself and others.

Such confinement and restraint may be in his own house, or in a suitable asylum or hospital.

The repetition and frequent occurrence of acts, without any motive sufficient to actuate persons of ordinary sense, are evidence of aberration of mind and in such cases, accumulation of proof becomes important.

Such aberration of mind will authorize the restraint of the person subject there-to, although he has not committed any actual violence.

This was a case of habeus corpus, prosecuted to procure the discharge from confinement of Josiah Oakes, who was committed to the McLean Hospital for the Insane, on the 16th of December last. The case was heard before the whole court, and the hearing occupied the whole of two days. The application of Mr. Oakes's sons for his admission into the asylum was produced, and their agreement to pay his board. All the proceedings appearing to have been regular, the court ruled that the burden was upon the petitioner to make out a sufficient case for his discharge. A large number of witnesses were called, who testified that they were acquainted with Mr. Oakes, and considered him a man of much industry and shrewdness, and also that they should not have inferred, from his conduct or appearance, during the last three months, that he was not in his right mind. Several of them said, however, that his faculties might have been affected by age. To sustain the detention of Mr. Oakes, the deposition of Dr. Bell was read, and a number of witnesses were called, among whom were Dr. John Fox, under whose immediate charge the prisoner was at the asylum, several members of the family, and other acquaintances. They testified to some irregularities in the conduct and conversation of Oakes, and Dr. Fox gave it as his decided opinion that he was insane. It appeared that Oakes had formerly been confined in the Asylum for ten days, for a temporary alienation of mind, and was then discharged as cured. His wife died in October last, and for a short time previous, and since her death, a change in his appearance had been noticed.* After the testimony was concluded, the counsel who opposed the petitioner stated that it was a mere question of evidence, and that he did not consider it necessary to argue it to the court. The counsel on the other side made an argument in favor of the release of Mr. Oakes.

*Mr. Odes, who is sixty seven years old, became infatuated after a young woman by the name of Sarah Jane Neal, and engaged to marry her a few days after the death of his wife. To prevent the marriage, prosecutions were commenced against her in the police court, by some members of the family, for lewdness of conduct.

B. F. Hallet and Geo. A. Smith, for the petitioner.
Buttrick, of East Cambridge, against the petitioner.

C. J. Shaw, in delivering the opinion of the court, said that the court had examined the testimony, and bestowed upon the case the time and attention which its great importance demanded. The subject was one in which every member of the community has a deep and abiding interest. The power of granting relief upon habeus corpus is, in one sense, a discretionary power. But a discretionary power is not an arbitrary power. In exercising it the court are bound by the rules of law, as applicable to the facts of each particular case. The circumstances under which persons may be legally detained are extremely various, and a correct judgment in each case requires the exercise of judicial discretion.

Mr. Oakes has been placed in an insane hospital, a known public establishment, with a responsible board of trustees; and so far it has always been regarded as a satisfactory and useful institution. It may be called a boarding-house, or a place of relief, protection and cure, for a person whose mind is diseased. It has been inquired by what power he is there confined? It has been argued, that the constitution makes it imperative upon the court to discharge any person detained against his will; and that by the common law, no person can be restrained of his liberty, except by the judgment of his peers, or the law of the land. But we think there is no provision, either of the common law or of the constitution, which makes it the duly of the court to discharge every person, whether sane or insane, who is kept in confinement against his will. The provision, if it be true, must be general and absolute, and not governed by any questions of expediency to suit the emergencies of any particular case.

The right to restrain an insane person of his liberty, is found in that great law of humanity, which makes it necessary to confine those whose going at large would be dangerous to themselves or others. In the delirium of a fever, or in the case of a person seized with a fit, unless this were the law, no one could be restrained against his will. And the necessity which creates the law, creates the limitation of the law. In the case of an application to have a guardian appointed over the person and estate of an insane person, under the statute, some time must necessarily elapse before the appointment can be made, and during that time restraint may be necessary. If there is no right to exercise that restraint for a fortnight, there is no right to exercise it for an hour. And if a man may be restrained in his own house, he may be restrained in a suitable asylum, under the same limitations and rules. Private institutions for the insane have been in use, and sanctioned by the courts; not established by any positive law, but by the great law of necessity and humanity. Their existence was known and acknowledged at the time the constitution was adopted. The provisions of the constitution in relation to this subject must be taken with such limitations, and must bear such construction, as arise out of the circumstances of the case. Besides, it is a principle of law that an insane person has no will of his own. In that case it becomes the duty of others to provide for his safety and their own. But whose duty does it become? If we say of his children, he may have no children; if of his parents, brothers or sisters, he may have no relatives who can perform the duty. Those who are about him must exercise it. His children, his wife, his brothers or sisters are suitable persons to take the charge of him if they are at hand. But a stranger, in a hotel or a boarding-house, may become delirious, in that case it becomes incumbent on those about him to restrain him, for such time only as the necessity for such restraint continues. The same rule may apply in the case of some surgical operations, where a person cannot have any will of his own, and it becomes necessary that he should be held by others.

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The question must then arise, in each particular case, whether a person's own safety or that of others requires that he should be restrained for a certain time, and whether restraint is necessary for his restoration, or will be conducive thereto. The restraint can continue as long as the necessity continues. This is the limitation, and the proper limitation. The physician of the asylum can only exercise the same power of restraint which has been laid down as to be exercised by others in like cases.

The present is one of the cases in which insanity must be inquired into by judicial tribunals. In such inquiries we must carefully keep in mind the object of the inquiry. The same rules do not apply to the same extent in this case, which apply in the case of a person who has committed a crime, and is sought to be excused on the ground of insanity. And when it becomes necessary to appoint a guardian under the statute, there, evidence of imbecility, improvidence or wandering of mind, without any dangerous form of insanity, becomes material, although it would not be in a case like the present. Many considerations have weight in one case which would have none in the other. We must not fall into the general notion, that a person is not to be considered insane, merely because he does not always show wildness of conduct in his everyday appearance. Since the subject has been scientifically investigated, we know that a person may show sagacity in his business, but still be decidedly insane on some one subject. There is one class of cases in which, at a particular period of life, a person's character appears to undergo a change, and the existence of a hallucination or delusion is shown, which can not be removed by reasoning, argument, or persuasion. This species of insanity frequently shows itself in outbreaks of passion, on occasions where there appears no cause sufficient to produce them in a person of sound mind.

From a survey of the evidence we have come to the conclusion, that Mr. Oakes is laboring under such a delusion as renders it proper that he should be restrained, at least for a time. He has before been in the same hospital, and his cure after ten day's confinement at that time, indicates the proper course to be pursued now. That was a case of temporary alienation of mind, or excitement. Before his confinement he had made a contract to do a piece of work for Mr. Bowman, which he went on and completed immediately after his release and Mr. Bowman. testifies that the contract was a good bargain for Mr. Oakes. This shows that it was not a necessary consequence of insanity, that he should make an improvident contract. The general tenor of the evidence is, that Mr. Oakes was a careful, prudent, industrious man, attached to his children, arid to his wife, and that the most perfect confidence subsisted between him and his wife. He resided at Cambridgeport for a time, and afterwards at East Cambridge. His business was wharf budding. and pile driving, which he conducted with prudence and success. He was a man of strong feelings and passions, easily subject to excitement, which however, readily subsided. This is usual with persons of much energy of character. He occasionally ill treated his wife, and frequently used harsh language. He had been quite a domestic man, but now began to be frequently absent in the evening, causing anxiety to his family. His wife died in October last. He did not manifest the feeling upon that occasion, which was to be expected from a person in his right mind. On the evening when his wife was in a dying condition, of which he was informed, he left the house, and passed the evening at a house in Boston, in the company of the person to whom he afterwards became engaged. When he came home, he asked if his wife was dead, in a manner which exceedingly shocked the feelings of his daughters. His conduct at the funeral showed a perversion of mind. It may be said, that this was a consequence of his resenting the attempt of the family to put him under guardianship. and confine him in the insane hospital. But he did not manifest such resentment. When speaking upon the subject, he said that they were not to blame, for they supposed he was really insane. To a man acting under ordinary motives and feelings, such resentment, although it might be naturally felt for the time, could not be lasting.

On considering his state of mind, his alternations of depression and excitement, we think he did not act from ordinary motives and feelings. His presisting in his intention to marry the young woman who has been spoken of, and refusing to believe the evidence of her bad character, are indications of this. It is in evidence that he positively declared to his friends, who were much shocked at his declared determination to be married, that he would not marry the girl under six months; and afterwards made repeated attempts to have the ceremony performed within two months of his wife's death. The fact of an old man, a widower, wishing to marry a young wife, is not of itself evidence of insanity. But the circumstances, and the conduct of Mr. Oakes, attending the proposed marriage are evidence that he was laboring under a hallucination of mind. His refusal to believe any evidence of the girl's bad character, his unlimited confidence in his own knowledge, his letter to Governor Morton and to his son, all show the morbid excitement of his mind. The testimony of Dr. Fox, the physician at the asylum, is important. His comparison of the tenor of his conduct and appearance at the time he was before confined in the asylum, serves to show his state of mind. He has always, when in this state, said he could at any time make a large fortune in a short time, -- could become independent again in a few months, if he should lose all he had, -- that it was impossible that he could make a bad bargain, -- and that he must always make money, -- it could not be otherwise. He declared that he would not believe the character of the girl to be bad, although she should be convicted, -- that he knew better than all the courts and the juries.

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Dr. Fox testifies that he has no doubt that Mr. Oakes is insane. His opinion must have great weight in this case, from his skill and experience in the treatment of insanity. He has had the care of insane persons for a long time. If we can not rely upon the opinion of those who have the charge of the institution, and there is no law to restrain the persons confined, we must set all the insane at large who are confined in the McLean Asylum. He thinks it dangerous for Mr. Oakes to be at large. Dr. McLellan, a physician at East Cambridge, whose testimony is in the case, expresses a different opinion. He says he had a conversation with Mr. Oakes of about twenty minutes. He could discover no indications of an insane mind. He knew nothing of the character of the girl, or of the facts and circumstance of the case, except as they were stated to him by Mr. Oakes. It is well known, that persons laboring under a delusion often reason with sagacity upon false premises. On the other hand, Dr. Fox is bound by his duty, his profession, and his responsibility to the public, to bestow a careful examination upon cases like this, and his opinion may well overbalance one which is formed upon so cursory an interview as that of Dr. McLellan's. Mr. Tyler, the steward of the institution, confirms the statement of Dr. Fox, as to the appearance and conduct of Mr. Oakes. It is not necessary to consider the deposition of Dr. Hell, as it would not vary our conclusion upon the case.

No objection can be made to the competency of the children as witnesses. If there were anything to justify a belief in a combination of the family for sinister purposes, they would not be entitled to much confidence. But their testimony appears candid and unobjectionable, and there is nothing which shows any improper design. A unanimity of purpose in the family is no evidence of sinister intentions, unless the object sought to be obtained by the combination is unlawful or improper. The object here appears entirely laudable, and intended for the good of a parent whom they love and respect. If they considered the marriage as a rash act, and a consequence of his insanity, they were justified in attempting to prevent it. His earnestness in obtaining the publication of an article which his son and the printer considered libelous, and his giving a bond, in the unnecessarily large mum of $10,000, to save the printer harmless, show that his mind was morbidly excited. It has been objected that one of the sons prepared the bond, and said that he thought he would see how far his father would go into the matter. But he was requested by his father to put it in shape, and be at the same time enjoined it upon the printer not to publish it. The father showed a determination to carry the matter through, and had other legal advice besides that of his son.

Mr. Oakes's eagerness to engage in a large speculation in real estate, as stated by Dr. Parkman and Capt. Richardson, and his conduct in regard to it, are also in point. The fact of a person's engaging in extravagant or daring speculations, is not of itself sufficient evidence to prove him insane, but the manner in which Mr. Oakes conducted the affair, shows his mind to be unsound. Dr. Parkman saw, by his elevation of manner, that he was not in a fit state to conclude the large purchase which he desired to make, and refused to make the bargain unless he would get the consent of his family. Mr. Oakes, under the delusion that such consent was the only obstacle to his wishes, went to his son-in-law, Mr. Houghton, told him he would give him $100 to go to Dr. Parkman, and give his consent, and took out the money at the time and offered it to him. He afterwards went to Capt. Richardson, his brother-in-law, who lives in Duxbury, and offered to give him $50 a day to come with him to Boston, and go to Dr. Parkman and give his consent.

The repetition, and frequent occurrence of acts without any motives sufficient to actuate people of ordinary sense, necessarily induces a belief that the person who commits them, is under a delusion. In cases of this kind, accumulation of proofs becomes of considerable importance. It will not be necessary to examine the proof on the other side at any considerable length. It is not any want of sagacity in his usual business transactions which induces us to think Mr. Oakes insane, but his evident hallucinations, and his acting under unnatural excitement upon certain points. His overseeing his business correctly, and carefully seeing that the piles were driven well, does not prove him to be sane. He was under no delusion on that subject. His directions to Whitwell, the constable, showed only the shrewdness which frequently accompanies insanity.

Taking all the evidence together, we are of the opinion, that Mr. Oakes is under the operation of that degree of insanity, which renders it proper that he be restrained in the hospital ; that his insanity is temporary in its character, and that the restraint should relief from the present disease of his mind. Dr. Fox does not say positively that he considers his being at large as dangerous to others. But this species of insanity leads to ebullitions of passion, and in these ebullitions dangerous acts are likely to be committed. If committed, he would be excused from punishment on the ground of insanity. His daughters testify, that, if he carried weapons, they should be afraid of him. But there would be the same danger from weapons which might happen to be at hand, at the time of any occasional outbreak.

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At present, we think that it would be dangerous for Mr. Oakes to be at large, and that the care which he would meet with at the hospital, would be more conducive to his cure than any other course of treatment. It is, therefore the order of the court, that he be remanded to the McLean Asylum, to remain there until further action upon the subject. -- Law Reporter, July, 1845,