in doing that when the judges of the King's Bench Division reported to the House of Lords in McNaughton's case. They thereby crystallized into a rule of law the then existing medical theory of insanity. It was perfectly good at the time it was pronounced, but it has since become very bad, as the views have changed; and it is very difficult to get the medical profession to realize that the law cannot change as readily as a medical theory changes. If that were so we, in one way, would have much less difficulty and in another way a great deal more difficulty; but the physicians have, some of them, rather that same attitude and are very insistent that we legislate their present theories, which they think are final, as is always thought with reference to views, into propositions of law.

On the other hand the lawyer is too slow to incorporate into laws new views although those views have been established.

The Chairman then introduced Mr. Leavitt of the New York Bar Association, who spoke in part as follows in reply to Professor Keedy:

MR. LEAVITT: We have proceeded from this point of view: That probably 90 or 95 per cent of the insane persons do not develop criminal tendencies. It is always assumed, and Prof. Keedy assumed it, that the insane man cannot commit crime, and therefore you have no right to say that an insane man developed criminal tendencies. Our committee's name is the Committee on the Commitment and Discharge of the Criminal Insane. How can there be such a thing as a criminal insane man under existing definitions? We have proceeded along this line, that the man who commits an act of injury to society, whether it be murder, forgery or anything else, is one who has thereby proved himself to be dangerous to society, and that society must protect itself, and that society's rights to punish any one for infraction of its laws is the only reason for such action; that society has no right to punish the individual for reformation; that is the province of the Almighty; society's only basis for proceeding against any criminal is its self-protection. Now, the man who commits a crime proves himself thereby to be an enemy of society, and the wrong done to

society by the murderer who takes out one of its fellow beings is just as much to society, the injury to society is just the same, whether that man is insane or sane, and society must protect itself against the act of the insane man just as much as against the act of the sane man. Therefore it becomes utterly immaterial to decide the intent with which that person committed that act. Society must protect itself. I am not talking about the cases of justifiable or excusable homicide. Where one person kills another with intent to kill him the law described that to be murder. Now, the insane man has just as much intent to kill as the sane man, and the only problem for society is, what shall be done with the man who has done that deed. The trouble with us now is that we are trying to solve two problems in one inquiry.

The problem whether the man did the deed with the intent to do it is one thing. That problem can be determined without regard to the fact of whether he is sane or insane. The problem of what shall be done with that man after you determine that he did it is another problem. Then comes up the question of sanity or insanity. With that point in view our committee did for the purpose of raising discussion, and only for discussion, suggest in a phrase which attracted attention that insanity be done away with as a defence to an indictment for crime, but not with the idea of having all the logical consequences follow from that mere bald statement. We merely suggested it for discussion. We said we did not dare to propose such things; we did not even convince ourselves. A year afterwards we discovered the English law which was not known to our committee at the time. It has been the law of England for 30 odd years that on a trial of indictment for crime if the defence prove insanity at the time of the commission of the offence or use that as a defence, the jury should or might return a verdict of guilty, but insane, and we brought that to attention in our second report and we are now discussing that.

The difference between a verdict of not guilty by reason of insanity and of guilty but insane will be obvious to every lawyer, but not obvious to every layman. The layman would say natu

rally, what is the difference between a verdict of guilty but insane and a verdict of not guilty by reason of insanity; but the legal effect is different. In the one case the man who is found not guilty but insane is entitled under the constitution to the right to his liberty the moment he regains his sanity, and hence you have the scandal which has now come across the border. into this community and is as startling to the Bar and medical profession in this community, as it has already been on our own side of the line. You cannot do away with scandals of that sort so long as you have your present system. The system of drawing a distinction between insanity at the time of the commission of the act and insanity at the time of the trial already exists in the law of New York (exactly what Prof. Keedy is advocating in other jurisdictions), but it has not done away with this trouble. If you have a verdict of guilty but insane then a man cannot get out on any plea of regained sanity afterwards. THE CHAIRMAN: You say that is the English form?

MR. LEAVITT: That has been the English form for 30-odd years, guilty but insane, and then the man is sentenced to an asylum during Her Majesty's pleasure and Her Majesty never exercises her pleasure until the medical fraternity certify that he is safe to go at large and will not commit any other similar act, and the more I consider this the more I am satisfied that an act of that sort will go to the root of the scandals under which we are suffering without one single bit of injustice to the unfortunate man who can be treated kindly and restored to sanity in an insane asylum under the medical care of the state.

Now, what earthly objection is there to it? If he has once demonstrated that he is an enemy to society by taking human life, who can say that that will not recur. Why should he having taken life, whether sane or insane, be allowed to go at large and endanger the community again. If he is sane he is restrained of his liberty by a sentence for a definite time. If he is insane let him be restrained of his liberty until the governor of the state or some pardoning board shall be satisfied that it is proper to set him at large, and then you will have done away with all these

scandals, because when a man is indicted for a crime and he is put to his election whether to plead insanity or not the motive, the incentive, to retain unscrupulous experts to swear to insanity is gone, because his choice then is not between jail and liberty or the electric chair and liberty but his choice is between incarceration in a jail or incarceration in an insane asylum, and then you will have done away with all these scandals, which as I say have now come across the border.

MR. POTTS, of the University of Texas: It may have been stated, but I did not quite catch it, what provision was made in the law of England or in the committee's plans for the man who was sane at the time of the commission of the crime but was insane at the time of trial of the case?

MR. LEAVITT: I have the law of England here. It is the insanity act of 1883. They have a way in England of putting common sense into statutes and making statutes short:

Where in any indictment or information any act or omission is charged against any person as an offence and it is given in evidence on the trial of said person for that offence that he was insane so as not to be responsible according to law for his actions at the time when the act was done or omission made then if it appear to the jury before whom such person is tried he did the act or made the omission charged but was insane as aforesaid at the time when he did or made the same, the jury shall return a special verdict to the effect that the accused was guilty of the act or omission charged against him but was insane at the time he did the act or made the omission."

Then follows simply that he shall be confined during Her Majesty's pleasure. It does not provide for the case of a man sane at the time of the commission of the act and insane at the time of the trial.

MR. POTTS: That is the point I wanted to get at. How can that be handled?

MR. LEAVITT: Very easily. He can be defended. If he is so insane at the time of the trial that his counsel cannot get the necessary evidence and it would be manifestly unjust for him to

be called on as an insane man to answer to a plea when he alone could give an explanation, then upon counsel's representing that to the court the court could defer the trial.

MR. OSBORNE, of New Jersey: We handle that question in what appears to me to be a very satisfactory manner in New Jersey. If representations are made to the court that the accused is insane. the court appoints physicians, alienists, to examine the accused, and if upon the hearing the court determines that the accused is insane he commits him to an institution until such time as he

recovers.

MR. POTTS: The case is simply continued until his recovery? MR. OSBORNE: They do not move the indictment. I had exactly that situation in a case tried before me a few weeks ago where a negro killed his wife and baby; he hung them to a bedpost, and of course the plea of insanity was interposed, not with very much effect ultimately, but his counsel made such an application, the man was tried and insanity was interposed at the trial and the jury returned a verdict of guilty, and he will be electrocuted within a short time.

PROF. MIKELL: It may be true as Mr. Leavitt said in the last remark of his, I think it is, that the English people have a genius of stating shortly common sense in their statutes, but exceptions prove all rules, Mr. Chairman, and it seems to me the Statute on Insanity is the exception here. How in the world can it be maintained that there is good common sense in a statute which provides that if a man committed a crime, or rather did an act, I will put it this way, killed some one, and on the trial it is proved that he was insane at the time he did that act, but it is assumed that he is sane now, that man should be shut up in an insane asylum because he was insane a year ago, when it is admitted by all the alienists, by everybody present at the trial, that the man is perfectly sane now? If that is common sense then every one of us might just as well be put in the asylum now, because we were insane ten years ago. The fact that he committed a crime some time ago surely is no reason for putting him in an insane asylum; if he committed that crime, and the