184 MORAL INSANITY. CH. XIX. disease, 1 says he shrinks from answering in the affirmative the question whether persons morally insane should in "every case "be exempted from all responsibility for what they do wrong." In the same way I should shrink from saying that moral insanity ought never under any circumstances to be admitted as an excuse for any offence whatever. Its existence might or might not convince a jury that the sufferer in a given case was deprived of the knowledge or of the power which I regard as the two constituent elements of responsibility by law. In any case it would be a fact for a jury to consider, and would be relevant to a defence on the ground of insanity. I think, however, that if such a defence were set up, it would be most important to bear in mind that if the expression "moral sense "is fit to be used at all-as to which there is room for endless controversy - many people, who are undoubtedly sane, appear by their conduct to possess nothing which remotely resembles it. If it exists, it varies from time to time, place to place, and class to class, so much that it is impossible to say that it is more than habitual sympathy with the moral sentiments of a given time or class of people with whom the person lives of whom moral sense is affirmed. The moral sense of an English gentleman, the moral sense of an Irish peasant, the moral sense of a Hindoo, the moral sense of any two individual men, differ profoundly. The criminal law is essentially distinct from all these differences. It says to all alike, "Think and feel as you please about morals, but if you do certain things you shall "be hanged," and accordingly large numbers of people are hanged for murders which probably do not strike them as particularly wrong, either before or after they are committed. In a note to their remarks on homicidal mania, Drs. Bucknill and Tuke refer to certain articles in the Journal of Medical Science, and make the following quotation:-" Mr. J. "B. Thompson, the resident surgeon of the General Prison for "Scotland, says, 'From large experience among criminals I "have come to the conclusion . . . . that the principal "business of prison surgeons must always be with mental 'disease; that the number of physical diseases are less than 66 6 1 Responsibility, &c. p. 181. 666 MORAL INSANITY. 185 "the psychical; that the diseases causing death amongst CH. XIX. 'prisoners are chiefly of the nervous system; and, in fine, "that the treatment of crime is a branch of psychology. "1 666 Mr. Thompson is quoted also for this remark :--" When I 'read Despine's conclusion that the moral sense is utterly "and invariably absent in all criminals who commit violent 'crimes in cold blood, I confess it startled me as a most "extravagant proposition; ' yet" (say Drs. Bucknill and Tuke) "he adds that the result of his investigations has much “astonished him, and not a little shaken his incredulity. "He states that, of 430 murderers he has had in medical "charge, only three discovered the slightest remorse for their "crime, corroborating, he considers, the opinion that the "moral sense is wanting in great criminals." 2 My own experience certainly is, that people who commit. great crimes are usually abominably wicked, and particularly murderers. I have the very worst opinion of them. I have seen something of a good many of them, and if I had not had that experience I should not have imagined that a crime which may be the result of a transient outbreak of passion indicated such abominable heartless ferocity, and such depths of falsehood as are, in my experience, usually found in them. This peculiarity appears to me to be a reason, not for sparing them, but for putting them to death. If, however, when a bad man acts according to his nature, he is—as I think he ought to be— put to death, I do not quite see why a person, who suddenly becomes bad by reason of a disease, should be in a better position than he who is bad by birth, education, and natural character. If the morally insane man is as able to abstain from crime as a sane bad man, and has the same reason-namely, fear of punishment-for abstaining from crime, why should not he be punished if he gives way to temptation? The importance of the whole discussion as to the precise terms in which the legal doctrine on this subject are to be stated may easily be exaggerated so long as the law is administered by juries. I do not believe it possible for a 1 B. and T., p. 261. 2 B. and T., p. 277. 186 JURIES ON INSANITY. CH. XIX. person who has not given long-sustained attention to the subject to enter into the various controversies which relate to it, and the result is that juries do not understand summings up which aim at anything elaborate or novel. The impression made on my mind by hearing many-some most distinguished-judges sum up to juries in cases of insanity, and by watching the juries to whom I have myself summed up on such occasions, is that they care very little for generalities. In my experience they are usually reluctant to convict if they look upon the act itself as upon the whole a mad one, and to acquit if they think it was an ordinary crime. But their decision between madness and crime turns much more upon the particular circumstances of the case and the common meaning of words, than upon the theories, legal or medical, which are put before them. It is questionable to me whether a more elaborate inquiry would produce more substantial justice. COMPONENT PARTS OF THE LAW. 187 CHAPTER XX. CONSTITUENT ELEMENTS OF THE SUBSTANTIVE CRIMINAL FROM the subject of criminal responsibility I pass to the CH. XX. other great branch of the substantive criminal law, namely, the classification and definition of crimes. Crimes may be classified in respect of their origin as being either crimes at common law or by statute; and in respect of their nature and gravity as being either treasons, felonies, or misdemeanours. I propose in the present chapter to give an account of the relation in which the common and statute law upon this subject stand to each other, and to describe and discuss the classification of crimes as treason, felony, or misdemeanour. Originally the whole of the criminal law was unwritten, and it is curious to find that at the very dawn of its history this fact had attracted attention and suggested comments not altogether unlike those of much more modern times. The most ancient of English law books is the work of Glanville, who wrote in the reign of Henry II. In his prologue occur the following passages:-"Leges namque "Anglicanas, licet non scriptas leges appellari non videtur "absurdum (cum hoc ipsum lex sit quod principi placet "legis habet vigorem') cur scilicet quas super dubiis in consilio definiendis, procerum quidem consilio, et principis "accedente authoritate, constat esse promulgatas.” “Si enim ob scripturæ solummodo defectum leges minime * censerentur majoris (procul dubio) auctoritatis robur ipsis 188 CH. XX. WRITTEN AND UNWRITTEN LAWS. legibus accommodare videretur scriptura quam vel decernentis æquitas vel ratio statuentis. Leges autem et jura regni "scripto universaliter concludi, nostris temporibus omnino quidem impossibile est ; cum propter scribentium ignorantiam, tum propter earum multitudinem confusam." From Glanville's time to our own the " confusa multitudo" of the unwritten law (which expression, however, in his day probably applied rather to the intricacy of local customs than to any state of things resembling our law libraries) has been gradually reduced to writing until in the present day it may be said that the whole of the law is written, either in the form of express acts of Parliament, or in the form of reported decisions and statements of text-writers. These authorities are upon the whole quite as binding as statutory enactments and not much less explicit, though some are imperfect and many of them are in an exceedingly confused and intricate shape. Speaking generally the relation between statute and common law in relation to the definition of crimes has been as follows. The common law supplies a certain number of general principles and leading definitions of crimes. The statute law assuming these has provided in many cases that common law offences aggravated or modified in particular ways shall be subject to special punishments. In other cases statutes have created offences unknown to the common law, and in some few instances it has altered the principles and reduced to certainty the definitions of the common law. This process, speaking roughly, may be said to have been in progress for about 600 years, possibly since the time of Henry III., at all events since the time of Edward I. At the present day the result is as follows. The principles and rules on which all questions relating to criminal responsibility depend are, without an exception, or with hardly an exception, unwritten, and therefore belong to the common law. No act of Parliament throws any light on the questions as to the extent to which insanity is an excuse for crime, and hardly any throws light on the limits of the right of self-defence. These are nearly the only branches of the criminal law on which it can be said with truth that |