CHAPTER I.

INSANITY, CAPACITY, AND RESPONSIBILITY.

21. Introduction.-There are few questions which have excited more general interest, few which have been more publicly discussed, and few which have, in general society, in medical literature, and in the newspaper press, received such unsatisfactory answers as those which are connected with the medical jurisprudence of insanity. The question, however, as to the responsibility of the insane for criminal acts is the one which has drawn out the greatest amount of miscellaneous answering. Whenever a crime of unusual atrocity has been committed, and whenever there is no other defence, the plea of insanity has been set up, and whether it has been accepted by the jury as a sufficient answer to the charge or not, it has been adopted by certain members of the public, and that for very obvious reasons. The public is led by sympathies rather than by reason. When it at first hears of the perpetration of some ghastly crime, all its sympathies are with the victim. If it had its way, the nearest tree would be called into requisition by angry Judge Lynch. But the law wisely steps in and protects accused persons, and says vengeance must only fall upon the guilty. To discover the really guilty person, time must elapse, and inquiry must be made. Meanwhile, the victim is forgotten, and sympathy is with the criminal. The public reasons, nothing we can do to him, will bring the dead man back. Then, too, the very calmness of Justice makes it seem cruel in the eyes of the people; and they are only too glad to adopt any reason which may seem to have some truth in it, and which may secure leniency to the criminal. For that reason, some persons are always sure to accept insanity as an explanation of the crime and as a reason for the exercise of lenity.

22. The question of capital punishment is very often associated with the question of the responsibility of the insane. If capital punishment were done away with, we would certainly hear less of the insanity of accused persons; but it is altogether wrong to allow one's views of the expediency or rightness of punishment by death to influence one's views of the mental condition of any person accused of crime, or to suffer one's opinions of what the law ought to be to affect one's obedience to the law as it exists. The wide-spread feeling of the inutility of capital punishment is doubtless an indication that the country is in a condition to do without punishment by death, as a means of enforcing obedience to its laws. It is a true, although apparently paradoxical, maxim in relation to legislation, that whenever a people hates punishment the most, it can do with the least. Were crimes of violence common, folk would be content with the gallows and the gibbet; as it is, the lives of honest men being in but little danger, they can afford to sympathize with criminals, and lay the axe at the root of the gallows-tree. But one's distaste to capital punishment never can be a reason for saying that every criminal is insane.

23. The atrocity of the Crime in connection with Insanity. It is not at all uncommon in society to ascribe insanity to any individual who perpetrates a crime unusually shocking. It seems to be a theory that a sane man may murder one or two people, but that any one who murders half a dozen must be mad. It does some credit to the persons who entertain this theory that they have such a high view of humanity as to regard anything particularly atrocious as inhuman and unnatural, and that they must resort to an hypothesis of insanity to account for anything that is singularly horrible in conduct. But it is clear that this would scarcely do for a test. Were it once adopted, it would become common for those who wanted to kill one person to kill a very large number, in order that they might enjoy an immunity from punishment on the ground of insanity. Running-amuck would be encouraged by such legislation. But a careful examination of all the cases of horrible murders which have occurred in times past will convince any one that the

mere atrocity of the crime is no indication of the mental condition of the criminal, and that the ordinary society phrase, which it glibly applies to every crime which is more than usually revolting, "It must have been a madman who did it," is very far from the truth, and has been the cause of a considerable amount of misunderstanding as to the real nature of responsibility. In many eyes, human life is not sacred, and there are innumerable instances in which it has been sacrificed with the utmost recklessness. In some eyes, the only life that is sacred is their own; and to save themselves, or to procure for themselves some joy or advantage, they are willing to sacrifice the lives of others, and these feelings, although to a high-minded man they seem abominable, unnatural, and insane, are nevertheless in these persons natural and healthy instincts. It is to protect society from such persons that laws exist.

24. Reasons why the question of Responsibility has not received a Satisfactory Answer.-It has seemed necessary to us to allude to one or two preliminary subjects with the view of showing why the questions as to the legal relation of the insane have received such unsatisfactory answers, notwithstanding the great amount of confused and promiscuous discussion. The strong feeling against capital punishment, a crude notion that any act very revolting is the result of mental disease, which has been fostered by the knowledge that many acts of terrible cruelty have been committed by the insane, a very wayward and somewhat uninformed outcry upon the part of some members of the medical profession that the laws were unjust, and the general ignorance of the people of the real meaning of law, the real reason of panishment, and of exemption from punishment, have contributed to the misunderstanding of the whole subject, and to its somewhat unsatisfactory condition, in so far as general and medical literature is concerned at the present time. After the most careful consideration, after the most diligent inquiry into the reasons that have, been urged for and against the rules of law which are at present in existence, after giving due weight to the arguments adduced and the opinions propounded by some of the ablest members of the medical profession who are

antagonists of the present legal tests of sane citizenship and punishability, we are constrained to admit that we can see no injustice in the present state of the law, that in every respect it is abreast of contemporary science, and that, with due explanations, no better tests could, at the present time, be laid down in respect to the civil capacity and criminal responsibility of the insane.

5. The necessity for Legislative Enactments as to the Insane. It has never been disputed that there was a necessity for class legislation with reference to the insane. The laws are laid down to guide the conduct of men amongst men. Much wisdom and experience has gone to their making, and although fault is always to be found with them, although, from time to time, as circumstances change, as men's characters alter, changes and amendments are demanded in the statute book, still it is at all times necessary to compel obedience to the existing laws. But this compulsion of obedience to the laws, which is a part of the law, takes for granted individuals who understand what the command of the supreme power is, and who, while understanding that command, are in a position in which they can give or withhold obedience. All commands must imply a person who understands what is ordered, and who can do or who can refrain from doing what is required of him. It would be absurd to tell a wind to blow or rain to fall. Such an order in

a human mouth would not be a command. So the word would be equally inapplicable to an order issued by one man to another in a tongue he did not understand and without gestures which he could appreciate, or by one man to another to do something which was impossible, such as to put out the stars, or remove a mountain. In all these cases, although in one aspect-the aspect of him who utters-these may seem commands, in the other aspect-that of him who hears--they are nothing of the sort. So, laws which are simply commands are only addressed to those members of a community who can understand what they allow or forbid, and who, joined with this knowledge, have the power to give or to withhold obedience to these orders. Now, as there is a class of persons in the community who are not in a position at the same