The Origins of Forensic Psychiatry in the United States and the Great Nineteenth- Century Crisis over the Adjudication of Wills

James C. Mohr

Forensic psychiatry emerged as a professional activity in the United States during the first third of the nineteenth century when four major factors coalesced: the medicolegal vision of early American physicians, the introduction of new theories about insanity, the concern of early state governments with mental health, and the advent of marketplace professionalism. From the outset, forensic psychiatry found itself involved in the adjudication of wills. The evidence suggests that postmortem diagnoses of insanity were employed through the middle decades of the nineteenth century to maintain stable and predictable patterns of property conveyance in the new republic. But such diagnoses then became something of a fad, a way to raid estates. Courts and legislatures reacted against that trend during the last decades of the nineteenth century, when fundamental social stability was no longer an issue, in order to protect individual testators and limit the power of forensic psychiatry. By the early decades of the twentieth century, patterns had emerged that have since been taken as normative.

When the American Republic was England and to establish instead a merit- founded in the last decades of the eigh- based system of genuine service to the teenth century, the future role of profes- people as a whole. Many of the most sionals in American society was far from prominent physicians and attorneys in the fixed. But doctors and lawyers were op- new United States of America also be- timistic. Many of them regarded the Rev- lieved that the future of both their profes- olution as a chance to throw off the thor- sions lay in cooperating with one another oughly corrupted and largely class-based and with the state. Indeed, medical juris- guilds that passed for professionalism in prudence, conceived of as a separate pro- fessional undertaking, was thought to Dr. Mohr is professor of history at the University of have a nearly utopian future.' Benjamin Oregon. Address correspondence to: Dr. James C. Mohr, Rush, a signer of the Declaration of In- Dept. of History, University of Oregon, Eugene, OR 97403-1288. dependence, a confidante of Thomas Jef-

J Am Acad Psychiatry Law, Vol. 25, No. 3, 1997 273 Mohr

ferson, and the nation's best-known med- the nineteenth century by a host of new ical professor, spoke for many physicians theories regarding mental illnesses and and attorneys at the beginning of the nine- how to treat them. Emanating principally teenth century when he hailed the pursuit from France (in an era when French ideas of medical jurisprudence: "Fraud and vi- were welcomed by America's anti-En- olence may be detected and punished; glish professionals and intellectuals). unmerited infamy and death may be pre- these new theories and new therapies vented; the widow and the orphan may be were eagerly embraced by the optimistic saved from ruin; virgin purity and inno- Americans, and pushed to further ex- cence may be vindicated; conjugal har- tremes in the United States. Collectively, mony and happiness may be restored; un- these new theories had the effect of intro- just and oppressive demands upon the ducing a large number of gradations and services of your fellow citizens may be variations of sanity (or of insanity) to obviated: and the sources of public mis- replace older, sharper distinctions be- ery in epidemic diseases may be re- tween persons clearly deranged, on the m~ved."~That was a powerful prescrip- one hand, and persons who were merely tion. As his prime example of the way quirky or less competent or temporarily legal medicine could help society, Rush "visited by God" or simply troubled, on went on to discuss the subject of insanity, the other hand. The more gradations and a subject upon which he had himself pub- variations physicians looked for, the more lished important work. they found; and physicians were becom- Mental illness was at that time much ing convinced that the many new types closer to mainstream medicine than it has and degrees of insanity they were identi- since become; and mental illness, in con- fying were far more prevalent among the trast to most of the other areas of general general population than people had pre- medicine, seemed at the outset of the viously recognized. They were also be- nineteenth century amenable to treatment. coming convinced that they could do Physicians understood all too well that something about those mental ail- they were not making much headway ment~.~-' against conventional or physiologic dis- The new American Republic was the ease: and they would continue to founder first large-scale society for more than a on those fronts until the discovery much thousand years to be based upon the in- later in the century of bacterial agents for formed consent of the citizenry. For that some of those diseases. But many physi- reason the United States appeared to con- cians, like Rush, felt confident of some temporaries to be a genuinely revolution- success, even real progress, in the realms ary experiment, far more tentative and of mental health. They knew more about problematic in the monarchical world of human behavior, after all, than they did the early nineteenth century than it now about the internal workings of the human appears to be from the vantage point of body, and importantly, they were excited the late twentieth century. It followed and encouraged in the early decades of from that revolutionary premise that the

274 J Am Acad Psychiatry Law, Vol. 25, No. 3, 1997 Forensic Psychiatry and Adjudication of Wills mental stability of the citizenry was cru- tury, when government begrudgingly ac- cially important to the ultimate well- cepted and applied some of the early les- being of the state. Consequently, attention sons of bacteriology. In that view, recent to mental health was not simply charity or large-scale commitments to public health humanitarianism; nor was it the exclusive have been seen as innovative. even some- hobby-horse of an aggressive medical how vaguely un-American, develop- profession looking to expand its turf. At- ments; but such notions reflect a pro- tention to mental health was also a polit- foundly ahistorical view of public health. ical and social imperative in the new Re- Only governmental attention to the bac- public. terial diseases fits that model; and even With this in mind, it comes as no sur- for the case of the bacterial diseases. co- prise to find nineteenth-century American incidence may be as salient as policy: states interested in the issue of sanity and physicians discovered some useful things ready to work with physicians in the bur- for the government to do in the areas of geoning and rapidly transforming area of bacterial medicine at about the same time mental health. The institutional embodi- the state began to take on its modern ment of this optimistic interaction centralized and bureaucratic characteris- emerged in the form of the public asylum. tics. With government help, every citizen who If mental health is included in the def- needed mental attention might enjoy the inition of public health, an inclusion apparently beneficial therapies associated which nineteenth-century Americans earlier with private retreats3, Most mod- would have taken for granted, then the ern Americans would be surprised at the tradition of state support for public magnitude of these undertakings. Mental health, complete with the outlay of major asylums were among the greatest public resources, has strong and deep roots in works of the nineteenth century. Ordinary the United States. The case of Oregon citizens were immensely proud of them provides a good example. Between the and never failed to take visitors, espe- Civil War and 1900, successive Oregon cially foreign visitors, to see them. The state governments spent roughly one- construction and maintenance of what third of their total outlay for the entire they called lunatic asylums consumed period on mental health (most of it build- huge amounts of public money from the ing and maintaining patients in the state's 1820s in the older Eastern states right asylums). That figure would almost cer- through the end of the century in the tainly astonish citizens today and would newer Western states. probably surprise most historians: about There is a mistaken notion in the his- one-third of all the money the state gov- tory of American public health that the ernment spent for that entire period on all United States did little or nothing-cer- fronts- economic development, educa- tainly little or nothing of any real val- tion, the state militia, everything-went ue-in the general field of public health to public mental health.' In short, by until the beginning of the twentieth cen- looking at state governments. where the

J Am Acad Psychiatry Law, Vol. 25, No. 3, 1997 275 Mohr real action took place during the nine- and states made a virtue of opening the teenth century in any event, rather than professions to all and any practitioners the national government. and by includ- who could persuade fellow citizens to ing mental health in the definition of pub- employ their services. By 1840, the entire lic health, it is possible to see clearly that United States had become a land where the United States-in sharp contrast to each profession had to shift for itself, and conventional assumptions-has a power- so did every professional. '-I4 Indeed, ful and extended tradition of governmen- this era ushered in America's unique ver- tal spending on public health. sion of "marketplace professional- Given the prominent place of public ism"-a pattern quite different from pro- concern over and large-scale state com- fessional development elsewhere-along mitment to matters of mental health, it is with a number of its attendant features not difficult to predict that a host of new (including medical malpractice, the real legal issues would begin to arise in con- rise of which also dates from this peri- junction with the subject of insanity-and od). ' they did. But those issues did not arise in The conditions of marketplace profes- a vacuum; they arose in the context of the sionalism combined with the medicolegal final factor involved in the origins of fo- implications of insanity to create the cir- rensic psychiatry in the United States: the cumstances that gave rise to what would maturation of the modern market econ- now be called forensic psychiatry. Law- omy. In theory, the United States had yers saw in all the new theories about been committed to open market concepts insanity new opportunities to defend the from its founding, but in practice the rem- interests of clients (my client was suffer- nants of hierarchical traditions and vested ing from a delusion when he signed that economic interests hung on for some time obviously bad contract; or, my client's after the Revolution. By the 1820s, how- irrational father should be committed to ever, the impact of an open market had an asylum so my client can manage the begun to be felt dramatically throughout family's affairs; and so forth). Physicians the nation (especially as the early indus- who believed in the new theories about trial and transportation sectors began to insanity, particularly those physicians take off) and a paradigm shift in political with some credible experience dealing philosophy (often conveniently labeled with the mentally ill in America's new the Jacksonian Revolution) stripped away asylums, found increasingly lucrative op- remaining vestiges of the old order.'' portunities to serve as expert witnesses in Elitism and special statuses of all sorts cases like these. Expert witnessing of any were under intense fire. Among the many kind, incidentally, was something rela- sectors of American life dramatically af- tively new in American courts. and like fected by these developments were the malpractice, largely the product of this professions, particularly medicine and period and these circumstances. And the law. The few licensing laws that ever courts themselves were looking for guid- existed in the first place were repealed. ance.15 Ordinary American judges, after

276 J Am Acad Psychiatry Law, Vol. 25, No. 3, 1997 Forensic Psychiatry and Adjudication of Wills all, most of them popularly elected and rounding insanity were so central to the highly politicized, were no better pre- New York Medico-Legal Society that a pared to deal with complicated questions dispute over insanity-related issues led to of legal sanity than anyone else. Indeed, the creation of a short-lived rival society. they were generally grateful for sugges- the New York Society of Medical Juris- tions that sounded credible and authorita- prudence, which was founded by the tive. In short, what eventually evolved prominent neurologist William Ham- into the professional interests of the mond, primarily to press his own views American Academy of Psychiatry and the regarding insanity and the law. The point Law first emerged as perfectly reasonable here is that by the 1870s and 1880s the responses, almost logically predictable entire field of legal medicine (at least in responses, to factors that came together the United States) had become all but during the second quarter of the nine- synonymous with the adjudication of teenth century: (1) the medicolegal vision questions arising from the jurisprudence of early American physicians, (2) the in- of insanity (rather than, say, physiology. troduction of new theories about insanity, or epidemiology, or occupational medi- (3) the concern of state governments with cine, or toxicology: all of which were mental health, and (4) the advent of mar- more important medicolegal questions in ketplace professionalism. France and Germany).' Once launched, forensic psychiatry The most theoretically controversial quickly solidified a surprisingly influen- and certainly the best-studied of those tial position in American medicolegal nineteenth-century insanity-related issues life. In the face of intense public aware- involved the question of criminal respon- ness and in the absence of significant sibility. If long-standing legal traditions forensic advances in other areas, issues held people accountable only for those surrounding insanity came to dominate acts over which they had volitional con- the field of legal medicine in this country trol, what should courts do with people during the second half of the nineteenth who were now regarded as having voli- century. The New York Medico-Legal tional control over most aspects of their Society at its high water mark in the lives but were utterly irrational on a sin- 1870s and 1880s, for example, when it gle subject; what should courts do with was certainly the most influential organ- people who were now regarded as having zation of its kind, was not really a broad- volitional control at some times but not at based medicolegal society at all, but a other times; and so forth. Especially dif- society devoted largely to the jurispru- ficult for nineteenth-century practitioners dence of insanity. In their published Pro- were dilemmas over how to deal with ceedings, the Society printed far more people alleged to have impairments of papers dealing with insanity than with their sympathetic. emotional, or judg- any other subject, and the Society's long- mental faculties-those who suffered time president. Clark Bell, seems to have from forms of what was then called cared about little else. Questions sur- (somewhat confusingly and deceptively)

J Am Acad Psychiatry Law, Vol. 25, No. 3, 1997 277 "moral" insanity (again following the as entail and primogeniture (the elimina- French, they used the adjective moral not tion of which was one of Jefferson's in contradistinction to "immoral" but in proudest projects), people would likely be contrast to "intellectual" or "rati~nal").~, sensitive to rules of inheritance-and American court records are full of squab- early Americans were, especially early bles and adjudications over issues of American professionals. Questions in- criminal responsibility from the 1830s volving wills and inheritance commanded and 1840s through the end of the century, a good deal of attention in the early na- as new theories about insanity continued tional period and became one of the first to emerge and lawyers continued to try to growth areas of medicolegal activity in apply them; using, of course, the testi- the United States. Physicians, after all. mony of the very people who were ad- had long been tied to the processes of vancing, developing, and defending those death. lineal descent, and inheritance. theories within the medical profession. Physicians were often present when peo- Especially in a nation that was still quite ple were dying; physicians were often small. it is not difficult to see how a called upon to convey nuncupative. or relatively identifiable cadre of expert wit- oral, wills both in cases of emergency and nesses would emerge from such circum- in support of their illiterate patients; and stances, and one did. physicians were often in positions of pro- Like nineteenth-century courts, the re- fessional trust. Surviving lecture notes cent publications of several historians and from medical jurisprudence classes in social theorists have also been full of American medical schools through the heated debates over questions of criminal middle of the nineteenth century demon- responsibility. The issue has been an ac- strate explicitly that early medical profes- ademic "hot button" at least since Michel sors spent considerable time instructing Foucault suggested during the 1960s that future doctors about wills.' our modem views of insanity first arose American state legislatures, even as as elements of a larger program of social they abolished such things as entail and control. and by implication, that forensic primogeniture, invariably retained both psychiatry emerged as a sort of "running the old English doctrine that the right to dog" of bourgeois repression.16 All but make a will was a statutory right (rather overlooked as that debate raged, however, than a natural right) and the old English was the equally fascinating and hugely requirement that testators had to be "of significant role of the new forensic psy- sound and disposing mind" to write a chiatry in the adjudication of wills. valid will. Those two provisions ensured, In an emerging nation pledged to the first, that the state. and hence the courts, radical experiment of open market capi- would have a say in the post nzorrenz talism (again. remember what a radical conveyance of property and, second, that experiment that was), especially in a rev- somebody would have to determine what olutionary nation that had proudly thrown constituted a "sound and disposing mind" off such ancient aristocratic mechanisms in any given case where that became an

278 J Am Acad Psychiatry Law, Vol. 25, No. 3, 1997 Forensic Psychiatry and Adjudication of Wills issue. When superimposed upon the nity, loquacity, prodigality. economy. changing conceptions of insanity, the lat- liberality to public institutions. cunning. ter became a particularly interesting and even "the evolution of talents of wit and thorny problem for nineteenth century rhyming." If none of those sufficed, Rush American courts. laid down the ultimate doctrine: "There The most influential early proponents are instances in which madmen talk ra- of what would become forensic psychia- tionally, but write incoherently." In other try. including such medical giants as words, a will deemed irrational could be Rush at the University of Pennsylvania, used as evidence of the testator's unsound Nathan Smith at Yale University, Robley mind, even in the absence of any other Dunglison at the University of Virginia, indications. and the great T. R. Beck at the Albany To a remarkable extent. that position Academy, all took essentially the same became American policy between. position regarding the role of physicians roughly. 1820 and 1860. Court after court in the adjudication of wills: doctors in such key jurisdictions as New York should employ their new theories of in- and Virginia began to break wills with sanity to ensure for families and for so- regularity. A few jurisdictions, including ciety the orderly and predictable transfer Connecticut, even reversed traditional of economic assets. Forensic psychiatry burdens of proof in contests over wills. should be used to guard against whimsy. making anyone trying to sustain a will caprice. idiosyncrasy, and the last minute demonstrate that the deceased had a fits of poor judgment associated with crit- "sound" mind, rather than making the ical illness or old age. In Rush's words, challengers demonstrate insanity.17. l8 In "Should a man [in what would now be New York, the trend suffered a temporary called a state of depression] bequeath the setback in 184 1 in the so-called Lispenard whole, or the greatest part, of his estate, Will Case. but that case was decided prin- to a church. or any other public institu- cipally as a political contest by the state tion. or to a stranger. to the injury of a senate, which then still sat as the ultimate family of children who had never of- court of appeal in New York." The fended him. and whose necessities, or equally famous Parish Will Case in New rank in life, as well as their blood. inlitled York City, with another huge fortune at them to be his heirs, he should be consid- stake. soon restored the new principles.' ered as morally deranged; and his will By mid-century, the preeminent authori- should be set aside as promptly as if he ties on both psychiatry and the law con- had disposed of his estate in a paroxysm curred in the new doctrines. For Isaac of intellectual derangement." Note the Ray, whose treatise on insanity afforded statement "as if' the testator had been him an international reputation, sound- insane: that is strong stuff. To achieve ness of mind ultimately boiled down to those ends, almost any indication of in- stability. predictability, and continuity. sanity would do as a pretext. Rush him- For him, erratic wills, simply because self listed several: new hatreds. tacitur- they were erratic, implied derangement in

J Am Acad Psychiatry Law, Vol. 25, No. 3, 1997 279 Mohr and of themselve~.~.*' For Isaac Redfield, get less in a particular will than they whose Lnw of Wills stood as the Ameri- would have gotten if the deceased had can standard for half a century, the same died intestate. In other words, these as- thing was ultimately true. Courts, he ar- tonishingly radical new doctrines were gued. were correct to judge the rationality being used in practice to sustain the pre- of the will at stake in any given contest, existing, deeply conservative, kin-based and right to allow psychiatric testimony system of property transfer. A rational to undo any wills deemed unreasonable." will was one that corresponded closely to By 1860, John J. Elwell, then the nation's what the state would have mandated any- leading authority on medical evidence in way. one that recognized and maximized court. was able to state flatly that "no traditional familial responsibilities, one class of witnesses dispose by their testi- that did not squander assets on "causes" mony of larger amounts of money than at the expense of lineal descendants. It alienists [what would now be called fo- was almost as though the American pro- rensic psychiatrists]. The greatest for- fessions, consciously or unconsciously, tunes ever collected together by financial had devised an extremely revolutionary ability. have been distributed by medical method of guarding against potentially men upon the witness stand, in contests revolutionary outcomes. over the validity of wills. . . .The law Yet, as these new doctrines gained hold books are full of illustrations of this in American courts, two major problems fact."" From the point of view of the began to surface. both of which provoked emerging and transforming professions, intense public discussion after the Civil forced to maneuver for themselves in the War and forced changes by the end of the open market. these developments were century. The first was a pervasive percep- too good to be true. Physicians interested tion that the use of forensic psychiatry in in forensic psychiatry could earn ex- will cases was encouraging frivolous and tremely handsome fees as expert wit- unfair "raids upon estates" by anyone nesses (the nineteenth century literature is who might lodge anything resembling a full of innuendo about huge fees). while claim. It is simply impossible to make enjoying a sense of service. science. and accurate estimates (even for subsamples) justice. Lawyers could help living (and, of the number of wills that were actually of course. paying) clients overcome the set aside on the grounds of unsound mind: dysfunctional whimsies of the dead, but entering such challenges does appear thereby advancing both themselves and to have become something of a fad in the the new market economy. United States during the middle decades The most striking overall aspect of this of the nineteenth century. Certainly the whole phenomenon, however, was the public thought so, and numerous newspa- paradoxically profound conservatism of per editorials all around the nation, as the actual cases themselves. Time and well as articles in learned journals and again, the beneficiaries of the new doc- professional treatises, discussed the fre- trines were those persons who stood lo quency and decried the upsurge of such

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actions. Responsible estimates attributed alienist retained in this way generally up to one-third of all civil litigation in finds what he looks for."22 The public state and local courts to will challenges, clearly did not want to think that elite almost all of them based upon post hoc professionals, in league with each other allegations of insanity. This perception and the state, could alter their bequests was exacerbated by the fact that many after they were gone. As one wry com- jurisdictions, notably New York state, al- mentator put it in The Anzericarz Journal lowed the expenses of any contest to be of Politics (which billed itself as a mag- drawn from the estate, thereby establish- azine for intelligent men and women who ing an incentive, especially for the pro- read and think on the vital questions of fessionals involved, to go ahead and take the times), "In ancient times the dying a shot. If a case was at all reasonable, it were expected to give [only] a small fee probably paid opponents to buy off the to the grim and silent ferryman who mo- challengers. since the challengers' efforts nopolized the transportation business of were prepaid anyway and they were quite the River Styx. . .But now the man of likely to gain at least "half a loaf' if they means. . .is expected to contribute to a actually went to court. The person who trio of Charons-to the three learned pro- built the estate thus being depleted was in fessions. It takes the united efforts of [all no position to protest.22,2' three. the doctor, the clergyman, and the By the 1870s. articles in the American lawyer] to secure him safe t~ansit."~' press were almost invariably hostile to- The other problem that exercised the ward the increasingly comnlon practice of American public after the Civil War was diagnosing insanity after the fact. Much the seeming loss of individual testamen- of what was being alleged in will cases tary power in the United States. More and was regarded as unseemly, unreasonable, mose people began to express their and unjust. Relatives found the character mounting frustration with practices that of deceased paragons posthumously be- seemed to be in such direct conflict with smirched in glaringly public trials. Not America's theoretical commitment to in- surprisingly. forensic psychiatry itself be- dividual sovereignty. More and more cit- gan to be more and more openly excori- izens in the open throttle decades of the ated, both in the nation's highest state Gilded Age (1870 to 1890) wanted to courts and in public forurns. Tlze Nutioiz believe that free-born Americans should put it this way in an 1883 article: "All have the right to do just about whatever men have peculiarities and eccentricities they wanted to do with the capital goods . . . .Where the man is not alive to explain they had acquired in the open market, his acts. nothing is easier than to exag- even after they were dead. If they wanted gerate, and distort, and color these until to slight a traditional heir or benefit a they wear a very dark look. Alienists [fo- favorite cause, they probably had good rensic psychiatrists] are called in to give reasons for doing so, which had nothing their opinion on the case as presented by to do with their sanity; and they should be the side which employs them. and an allowed to do so, without having to rise

J Am Acad Psychiatry Law, Vol. 25, No. 3, 1997 281 Mohr from the grave to defend their actions. An eliminated the older financial incentives 1877 editorial in the New York Times was to mount all and any challenges, however typical: "While [a] man lives his property frivolo~s.~~A final, and perhaps most is absolutely his. He may do what he important, reaction was a rather dramatic pleases with it. But when he is dead. shift in the willingness of courts. after incapable of explanation or defense, his roughly 1890, to continue to allow wills will. made when he was in full possession to be broken on grounds of unsound of his faculties. and disposing of his own mind. Indeed, even a cursory exploration gains, may be. . .set aside. . .by claimants of the key will decisions of that decade [who never] added a penny to the testa- reveals a great many testaments being tor's estate." Upbraiding the courts for sustained that would almost certainly sustaining what seemed to be a hangover have been broken 40 years ear lie^.'"^" from the era of English primogeniture, The major treatises of the period con- the New York Times asserted, "Public firmed the trend. opinion is less and less on the side of By the early twentieth century, forensic those who set up a claim to share in an psychiatrists were at some pains to assure estate which they have not augmented. It the general public that their own roles had is not popularly believed that a rich man's been appropriately minimized in will son or nephew has any legal or moral cases. Judge Robert rant^^ of the Boston right to decide what shall be his share, if Probate Court, a prolific and quasi-popu- any, of the dead man's property. In other lar writer, assured Americans in a book words, public opinion inclines to the published in 19 19 that "notwithstanding proposition that a sane, intelligent man the popular impression that the inten- may. without question, make his own dis- tion of testators is very easily frustrated." position of his own property."25 and notwithstanding "the sensational By the 1880s. mounting public unrest contests. . .in the newspapers" conveying began to produce specific reactions. the impression that "a great many wills Some of those reactions took the form of are broken," and notwithstanding the fact legislation. perhaps best epitomized by a that "the attacks of disappointed or law passed in Michigan in 1883, which greedy relatives are numerous." few wills allowed a testator to have himself or her- were actually still being overridden in self declared sane by a state judge at the practice, especially on the formerly time their will was signed. A formal hear- much-publicized grounds of mental in- ing was held. with all potentially inter- competence. Tn the jurisdiction he knew ested parties present, and the judge would best. Suffolk County (Boston. MA), certify the competence of the testator af- "where predatory tendencies against tes- ter hearing the terms of the will and dis- tators are well developed." an average of cussing any objections that might be less than one percent of wills were disal- raised.26, 27 Another set of legislative in- lowed during the first decade of the twen- terventions during the 1 890s, especially tieth century, and some of those were set in the key state of New York, largely aside on technicalities of law rather than

282 J Am Acad Psychiatry Law, Vol. 25, No. 3, 1997 Forensic Psychiatry and Adjudication of Wills unsound mind. Even adding in the nun- those origins permits some valuable long- ber of wills compromised in court-sanc- term perspectives on the social role of tioned settlements, the total, according to professional expertise. Second, like all of Grant, was down to well under two per- the other modern American professions, cent." This trend, incidentally, seems to forensic psychiatry has been and remains have continued right through the late part of an ongoing continuum of profes- twentieth century: it was estimated in sional development. That process of de- 1973 that about three percent of all wills velopment, in turn, has often been af- were contested in the United States, and fected by much larger forces than meet the number disallowed was less than half the eye at any given time. Third, forensic of one per~ent.'~In other words, patterns psychiatry as a professional activity has now taken as given had finally emerged been intimately interconnected with the by the end of the nineteenth century. historical circumstances of the nation it- By the final decades of the nineteenth self. Probably more dramatically than ei- century, many of the insecurities of the ther medicine or law separately, forensic early republic had been surmounted. The psychiatry has been deeply embedded in nation had even survived the test of a civil and driven by its social contexts. Fourth, war. Clearly the United States as a socio- forensic psychiatry has always been taken political experiment had proved itself; it very seriously in the United States. It was was succeeding. In fact. in material terms, near the center of an almost invisible, but it was succeeding beyond anybody's extremely important, early commitment wildest dreams. So instead of employing to public health. and it played a major the radical new techniques of forensic role in the hugely significant. but again psychiatry to sustain age-old mechanisms all but invisible, processes whereby all of kin-based stability, American courts wealth and property in the entire country (and American professionals) were free to passed regularly from generation to gen- indulge the surging individualism, even eration. Finally, the tensions and ambigu- the idiosyncrasies and exaggerated self- ities associated with forensic psychiatry importance, of its separate sovereign cit- are long-standing indeed. Many of them izens. With regard to wills. this swung reverberate back to the nineteenth cen- forensic psychiatrists. in a sense, over to tury. when the professional patterns we the other side by the end of the century. live with today initially took shape. Those thereby placing them in the sociojurispru- tensions and ambiguities remain impor- dential position they still occupy with re- tant in the modern world partly because spect to wills. there is still a great deal at stake, includ- Several conclusions emerge from this ing our sense of ourselves. Americans brief historical overview. First. the pro- have understood at some intuitive level fessional field now known as forensic that forensic psychiatrists helped them psychiatry had specific origins in the confront in the past, and hence presum- United States during the Republic's first ably will continue to help them wrestle in half-century. A clear understanding of the present, with many of the nation's

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