M'Naughten's acquittal, but rose considerably in that following Buranelli's execution.

As I have just stated, I have submitted the figures which I used in 1869, to a fresh scrutiny, which tends rather to strengthen than to weaken what I have said on a certain "attraction or fascination" which the deathpunishment exercises on the weak-minded and insane.

Of its effect on the sane members of the criminal class I cannot speak with so much confidence. I believe that it acts as a deterrent; and that the small number of murders committed in this country, when compared with nations which do not adopt the same means of evincing their respect for human life, may be regarded as a presumption in favour of this view. But in questions of this order the teachings of figures cannot be safely taken by themselves. There is an unseen as well as a recorded element to be taken into account. In this case it is the unseen number who may have been deterred by the knowledge and fear of consequences. That knowledge and that fear have been shown to be at a low ebb in at least one large class of the mentally unsound. May it not be safely inferred that both are most effective where the mind is least weakened by the taint of insanity?

SECTION VI.

LEGISLATION AND LEGAL TESTS.

IF I have rightly interpreted the figures supplied to us by the "Judicial Statistics," the punishment of death does not act as a deterrent to the weak-minded and the insane; but, on the contrary, either attracts and fascinates them, or suggests to them thoughts of killing. What I have said about imbeciles in a previous section (p. 170) will go far in support of this inference from figures. It may be that the punishment will lose some of its attraction by being stripped of its unseemly accompaniments, and that the absence of notoriety implied in private executions may tell upon the figures. But henceforth, as in times past, it will doubtless continue to be true that the death-punishment, whatever its accompaniments and surroundings, will fail to deter persons of unsound mind. This being so, we can enter on the consideration of legislation and legal tests, as they affect this class, without having our judgments warped by too sensitive a regard to the interests of the public.

In this inquiry something may be learnt from a retrospect of the legal dealings with the insane in times past. Let us, therefore, begin with the trial of Arnold for

shooting at Lord Onslow in 1723, more than a century and a-half ago, of which a short account has been given at p. 171. Through this attempt of Arnold's we have come to know what was the legal test and measure of responsibility among our ancestors in the early part of the eighteenth century. According to Mr. Justice Tracy, to be exempt from punishment it was not sufficient to prove a "frantic humour" or "something unaccountable in a man's actions;" he must be a man "totally deprived of his understanding and memory," not knowing what he is doing, "no more than an infant, than a brute, or a wild beast." We had to wait seventy-seven years for the destruction of this strange chimera—this impossible creation of the legal imagination. The opportunity was afforded by the trial of Hadfield in 1800 for shooting at George III. in Drury Lane Theatre. The Knight who came to our rescue was Erskine. We have long seen the last of Mr. Justice Tracy's impossible madmen. We are wiser now; but, let me ask, do not many among us sympathize rather with the judge who condemned Arnold than with Lord Onslow who interceded on his behalf?

I have said that we had to wait many a long year for the correction of Mr. Justice Tracy's strange mistake, and that we owe that correction to Erskine. Let us see in what this correction consisted, and how far it extended. The Attorney-General-worthy echo of Mr. Justice Tracy, as Tracy had been of Lord Hale-had told the jury that, "to protect a person from criminal responsibility, there must be a total deprivation of memory and

DELUSION THE TEST OF INTELLECTUAL INSANITY. 205

understanding." To this Erskine replied that "no such madness ever existed in the world;" that these words applied not to madmen, but to the subjects of idiocy and fatuity, who "are never made accountable to the law;" but that in madness properly so called, in "lunatics and other insane persons," there was no such deprivation of memory and understanding, for that these persons, as experience had shown, "not only had the most perfect knowledge and recollection of all the relations they stood in towards others, and of the acts and circumstances of their lives, but have, in general, been remarkable for subtlety and acuteness. Defects in their reasonings have seldom been traceable-the disease consisting in the delusive sources of thought: all their deductions, within the scope of their malady, being founded on the immoveable assumptions of matters as realities, either without any foundation whatever, or so distorted and disfigured by fancy, as to be nearly the same thing as their creation." Erskine accordingly lays down delusion as the true characteristic of intellectual insanity, for of this he is speaking.

But Erskine could not maintain himself at this high level of good sense; for he must needs insist that the criminal act must be "the immediate unqualified offspring of the delusion," thus taking no account of the defective or disordered state of mind in which the delusion originated, and he fails to discern in Arnold the very condition about which he was so eloquently discoursing; for, in referring to his case, he says that "his counsel could not show that any morbid

delusion had overshadowed his understanding." And yet this man Arnold, as Ray reminds us, believed that Lord Onslow was the cause of all the turmoils and troubles in the country; and that he bewitched him by getting into his belly and bosom, and by sending his devils and imps into his room to prevent his rest. Surely these strange notions were as much delusions as were Hadfield's that he had constant intercourse with God, that the world was about to come to an end, and that he, by taking away the life of another, was to sacrifice himself for its salvation. Nor can Erskine any more than Sir Vicary Gibbs, when conducting the prosecution of Bellingham in 1812, recognise the inconsistency of making the very person whom the law pronounces incapable of managing his own affairs, responsible for criminal acts.

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Nevertheless, we have to acknowledge our obligations to Erskine for slaying Mr. Justice Tracy's chimera, and for establishing delusion as the essence and appropriate test of that form of madness which attacks the ". derstanding and memory," which, in the age when metaphysics flourished, meant something very like the entire mind of man. That part of the mind which consists of the emotions and passions was little heeded; and though many madmen must have exhibited to all observers the angry passions which render them so dangerous, these passions were looked upon rather as adjuncts to intellectual madness than as its constant forerunners and true causes. Pinel it is who, early in the present century, made the important discovery that