Central Law Journal.

St. Louis, Mo., June 24, 1921.


A recent decision of the English Court of Criminal Appeal has aroused public interest in legal circles in England over the possibility that the science of psychiatry may play a large part in the future determination of the mental responsibility of those charged with crime. Rex v. Quarmby (Decided Mar. 21, 1921.) The facts in this case are stated by the Solicitors Journal (March 26, 1921):

"The Court of Criminal Appeal had to consider on Monday in Rex. v. Quarmby (Times, 22nd inst.), a case which has excited some public interest and which has been the subject of correspondence in our columns. It will be recollected that the prisoner, a man of forty-five, who had lived a blameless life until infatuation for a woman led him astray, confessed the murder of his mistress, but pleaded "irresistible impulse," on indictment for the crime before Mr. Justice Acton at Blackpool. The crime was clearly premeditated, as he had purchased the knife with which it was committed some time beforehand; he was convicted and sentenced to death, but at the trial some rather remarkable evidence was given as regards the state of the prisoner's mind by an official doctor. The prisoner had confessed, but the state of his mind was in doubt. The doctor accordingly, with the prisoner's consent, subjected him to hypnotism and interrogated him as to the crime while under hypnotic influence. The object of Dr. Wilkinson, the doctor in question, was the humane one of trying to ascertain whether or not the prisoner's mind was normal. The result of his investigation, which was conducted on lines of psycho-analysis, would appear to have been that the prisoner, who up to middle life had led a continent life and then had suddenly yielded to sensual temptation, was the victim of a "complex" which had gradually acquired force, until it had become an "irresistible impulse" which the prisoner could not resist. How far such a theory

is capable of being maintained in psychology or in medicine we cannot pretend to say it opens up an additional and novel possibility. But clearly such defence is unknown to the law of England, and the Court of Criminal Appeal could do nothing else than dismiss the prisoner's appeal."

Justice Darling, who presided in the Quarmby case, declared that there are obvious difficulties which beset an English judge when he is required to explain to the jury the law respecting mental responsibility for crime, and that these difficulties would be increased if the tests set up by psychiatrists should be introduced in evidence and must be explained to a jury.

We do not believe that the difficulties in the way of application of the new science of psycho-analysis should deter police efficers, judges and legislators from doing their utmost to put these principles into effect. The present practice of trying men over and over again for the same offenses and then turning them out to prey upon society, to steal, to burn, to kill, undeterred by any fear of punishment because of a defective affectivity rather than a defective intelligence is social suicide. The proportion of crime committed by normal persons or by persons of defective intelligence is, according to the experience of continental scientists, almost negligible. The great source of crime is dementia praecox. Here the intelligence is often only slightly subnormal and the usual tests of insanity would disclose no abnormal mental conditions. But the tests developed in the great psychiatric clinics at Zurich, Munich and other European centers will, in less than two hours' examination, disclose what, if any, defect exists in respect to one's affectivity. Here is where the psychologist is needed-not the physician. Dr. Hickson, the great psychiatrist of the Chicago Municipal Court, and one of the few experts in psychiatry in this country, in explaining the uselessness of clinical methods of investigation is such cases said:

"From the clinical side in a large percentage of these cases there is nothing very definite on which to establish a diag

nosis; while at the same time the disease is of the utmost potentiality in the thinking and doing of the victim; this is sometimes called predementia or latent dementia praecox, which, as a matter of fact, is not latent at all except in the physical sense. The psychological side may be quite well advanced and highly potential criminally, while yet there are practically no definite physical or clinical signs; in fact, as a clinical entity dementia praecox in its present and advanced development can hardly be said to exist in a large proportion of


"Many such physical or clinical signs should not be relied upon to make the diagnosis; and it is well known how well cases of dementia praecox paranoides can dissimulate on occasion. By the psycho

logical method we take the diagnosis to the case in the same manner that we take the tests these days to the feeble-minded, and not sit by and have to wait developments, as in the case in many instances diagnosed by the ordinary clinical methods, and these tests are to the dementia praecox in the reliableness and applicability what the BinetSimon tests are to the feeble-minded. These psychological symptoms are as clear and definite to the properly trained man as they are unknown or unappreciated to those unfamiliar with the method."

In the Municipal Court of Chicago, where a psycho-analysis is made of all doubtful cases, it has been discovered that 81 per cent of boy criminals were suffering with dementia praecox, which simply means that these boys have an incurable affectivity-an emotional defect-which will make them criminals all their lives and that society is not only in danger while. they are allowed their freedom but that, if permitted to do so, they will rear a brood of morons or emotional defectives who, unless controlled by natural conditions or strict regulation, will ultimately destroy the civilization of any country.

This is the gloomy picture which psychiatrists present to the leaders of modern society, and the only hope they hold out is the confinement of such defectives in early life to Colonies of the Feeble Minded. The commendable efforts of Judge Olson, presiding Justice of the Municipal Court of Chicago, in establishing a Psychopathic

Laboratory in connection with his court, has put the whole country under obligations to him, not only because of the success of the new mental tests which he has had set up, but because of the great interest he has aroused in this subject among lawyers and judges. The editor has learned of the organization of several new societies of mental hygiene formed to study the new science of psychiatry or psycho-analysis in its relation to the commission of crime. A new society of that kind has recently been formed in St. Louis, composed of a majority of the local judges, and is attracting lawyers, teachers and physicians to its ranks.

A glance at the shelves of any public library will show a surprising increase in the number of books on the subject of psychoanalysis or the new psychology as developed by Freud, Bleuler, Kraepelin and others in Europe. A study of this subject should be required in every law school so that those who shall be responsible for the administration of the criminal law in the future shall be fully prepared to deal with the tremendous increase in crime, which, according to psychiatrists, our misguided leniency with criminals has made possible.


FEDERAL RESERVE BANKS PROHIBIT ED FROM FORCING STATE BANKS TO CASH CHECKS AT PAR.-It was, beyond doubt, one of the purposes of Congress in passing the Federal Reserve Bank law, to estab lish universal exchange at par for checks sent in interstate commerce. But this purpose is defeated by a recent decision of the Supreme Court of the United States, in American Bank & Trust Company v. Federal Reserve Bank of Atlanta (decided May 16, 1921).

The decision will tend to quiet a very bitter controversy which had arisen between state banks and Federal Reserve banks over the practice of the former to make a service charge for cashing their depositors' checks. The Federal Reserve banks were expressly prohibited by law from making a charge for collections and therefore felt that they should not be prevented from serving their customers by clearing checks on small state banks. In order to de

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feat the practice of the country banks of mak ing an absolute collection charge on all checks cashed by it for another bank, a charge justi fied on the ground of the expense of remitting the proceeds to the forwarding bank, the Federal Reserve banks conceived the idea of accumulating a number of checks on a local bank and having them presented over the counter by an agent. No charge, of course, is made when checks are cashed in that way. In the present case the country banks of Georgia brought suit against the Federal Reserve Bank of Atlanta to enjoin this practice. In reversing a decree of the lower federal courts dismissing the bill, the Supreme Court ordered the hearing to proceed, to show whether in fact plaintiffs would be injured by the practice adopted by the defendants. The Court takes the position that, admitting the allegations of plaintiffs bill (which defendants say cannot be proven), their business would be destroyed by defendant's demand that all exchange shall be at par, then the plaintiffs were entitled to the relief asked.

Justice Holmes, who wrote the opinion for the Court, proceeds in his usual enigmatical manner to show when a right is not a right and becomes a wrong. This argument was in answer to defendants' contention that if their clients could cash the checks at par over plain. tiffs' counters, they, as the agents of their clients, could do the same. Justice Holmes' answer to this apparently very plausible contention is characteristic of the philosopherjurist of our greatest court. Justice Holmes said:

"The defendants say that the holder of a check has a right to present it to the bank upon which it was drawn for payment over the counter, and that however many checks he may hold he has the same right as to all of them and may present them all at once, whatever his motive or intent. They ask whether a mortgagee would be prevented from foreclosing because he acted from disinterested malevolence and not from a desire to get his money. But the word 'right' is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion. Most rights are qualified. A man has at least as absolute a right to give his own money as he has to demand money from a party that has made no promise to him; yet if he gives it to induce another to steal or murder the purpose of the act makes it a crime.

"A bank that receives deposits to be drawn upon by check of course authorizes its depositors to draw checks against their accounts and holders of such checks to present them for payment. When we think of the ordinary case the right of the holder is so unimpeded that it seems to us absolute. But looked at from either side it cannot be so. The inter

ests of business also are recognized as rights, protected against injury to a greater or less extent, and in case of conflict between the claims of business on the one side and of third persons on the other, lines have to be drawn that limit both. A man has a right to give advice, but advice given for the sole purpose of injuring another's business and effective on a large scale, might create a cause of action. Banks as we know them could not exist if they could not rely upon averages and lend a large part of the money that they receive from their depositors on the assumption that not more than a certain fraction of it will be demanded on any one day. If with. out a word of falsehood but acting from what e have called disinterested malevolence inan by persuasion should organize and carry nto effect a run upon a bank and ruin it, we cannot doubt that an action would lie. A similar result, even if less complete in its effect, is to be expected from the course that the defendants are alleged to intend, and to determine whether they are authorized to fol. low that course it is not enough to refer to the general right of a holder of checks to present them, but it is necessary to consider whether the collection of checks and presenting them in a body for the purpose of breaking down the petitioner's business as now conducted is justified by the ulterior purpose in view."

POWER OF CONGRESS OVER PRIMARIES FOR THE SELECTION OF UNITED STATES SENATORS.-The same serious mistake which the Supreme Courts of practically every state have made has now been made by the United States Supreme Court by a five to four decision, holding that primaries are not within the meaning of constitutional provisions referring to elections. Newberry v. United States, 41 Sup. Ct. Rep. 469.

Congress provided by law that no candidate for senator or representative should expend more than the amount allowed to candidates in the state in which he resides for the purpose of procuring his nomination or election as United States senator. A Michigan statute prohibited the expenditure of more than twenty-five per cent of one year's compensation to procure the nomination for any office, and a like limitation in procuring one's election. Senator Newberry was charged with a conspiracy to violate this law by an expenditure of more than one hundred thousand dollars to procure his nomination as United States senator on the Republican ticket in the state of Michigan. Reversing a judgment of conviction, the Supreme Court held that the power given to Congress by Art. I, Sec. 4, to regulate the manner of holding elections for United States senators did not give Congress power to regulate primaries for the purpose of selecting candidates for United States senators to be placed on the respective

party tickets at the ensuing election. On this point Justice McReynolds, writing the opinion of the Court, said:

"If it be practically true that under present conditions a designated party candidate is necessary for an election-a preliminary thereto-nevertheless his selection is in no real sense part of the manner of holding the election. This does not depend upon the scheme by which candidates are put forward. Whether the candidate be offered through primary, or convention, or petition, or request of a few, or as the result of his own unsupported ambition does not directly affect the manner of holding the election. Birth must precede, but it is no part of either funeral or apotheosis.


"Many things are prerequisites to elections or may affect their outcome-voters, education, means of transportation, health, public discussion, immigration, private animosities, even the face and figure of the candidate; but authority to regulate the manner of holding them gives no right to control any of these. is settled, e. g., that the power to regulate interstate and foreign commerce does not reach whatever is essential thereto. Without agriculture, manufacture, mining, etc., commerce could not exist, but this fact does not suffice to subject them to the control of Congress. Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. 6, 32 L. Ed. 346.

"We cannot conclude that authority to control party primaries or conventions for designating candidates was bestowed on Congress by the grant of power to regulate the manner of holding elections. The fair intendment of the words does not extend so far; the framers of the Constitution did not ascribe to them any such meaning. Nor is this control necessary in order to effectuate the power expressly granted. On the other hand, its exercise would interfere with purely domestic affairs of the state and infringe upon liberties reserved to the people."

No line of decisions is more discreditable to the judiciary of this country than those holding that primary elections are not "elections" within the meaning of that term as used in the constitution of the various states. Special mention is due the great courts of Ilinois, Indiana and Pennsylvania for taking the sensible ground that under our present form of party government, a primary is as much an election as is the final choice made between rival party candidates. People v. Chicago Election Commissioners, 221 Ill. 9, 77 N. E. 321; State v. Hirsch, 125 Ind. 207, 24 N. E. 1062, 9 L. R. A. 170; Leonard v. Commonwealth, 112 Pa. 607, 4 Atl. 220; People v. Dineen, 247 Ill. 289, 93 N. E. 437. The Constitution of the United States is a document couched in most general terms, to abide for all time, and it would be a reflection on the intelligence of the framers of the instrument to presume that they did not have in mind the possibility of any future changes in the manner of holding elections and selecting candidates. When the Constitution

provides that Congress may regulate the "manner" of holding elections for senators and representatives, it has in view every step which should become a necessary and integral part of the plan by which such persons are elected to office. On this point the dissenting opinion of Justice Pitney is interesting. The learned Justice said:

"Why should this provision of the Constitution-so vital to the very structure of the government-be so narrowly construed? It is said primaries were unknown when the Constitution was adopted. So were the steam railway and the electric telegraph. But the authority of Congress to regulate commerce among the several states was extended over these instrumentalities, because it was recog nized that the manner of conducting the commerce was not essential. And this court was p.ompt to recognize that a transportation of merchandise, incidentally interrupted for a temporary purpose, or proceeding under suc cessive bills of lading or means of transport, some operating wholly intrastate, was none the less interstate commerce, if such commerce was the practical and essential result of all that was done."

We are not interested in the result in the particular case. In fact, we believe, with the four dissenting judges, that the conviction should have been reversed on the ground that the Federal Corrupt Practice Act did not intend to limit spontaneous contributions of money by others than the candidate except as he should participate therein. But we do ob ject to the ground of this decision and fear that it will greatly restrict the power of Congress to safeguard the election of United States senators. The whole country is interested in the election of a Senate that will represent the free choice of the people and be wholly free from the domination of men of wealth and commercial influence. It is idle to say that the election and not the primary is the place where this selection is made. Under our present form of party government a United States senator is selected at the respective primaries. No man could hope for election, in most cases, who failed to secure a nomination of one of the great parties. To say that Congress cannot regulate the primaries at which United States Senators are chosen is to put Congress under the domination of the states in respect of a matter which vitally concerns the national interests. For what avails it to regulate elec tions when the real choice is made at a pri mary?

We are pleased to note that Justice McKenna concurs in the opinion of the majority only so far as the present statute is concerned, reserv ing his opinion as to the constitutionality of a statute passed under the power of the Seven

teenth Amendment. The Corrupt Practice Act the excepted cases. This the plaintiffs in was enacted prior to the Seventeenth Amendment, which gave to the people the power to choose United States senators. Under this amendment and the doctrine of implied powers, such an act, it seems to us, would clearly be constitutional.


During the war the well tried and time honoured principle of English law, freedom of contract, has not received its customary effect. The reasons given for interfering with it are various, such as (1) National defense and security; (2) Impossibility of performance arising from war conditions, and (3) Reasons of public policy. We are inclined to think that the effect on the country of these experiments has been such as to cause a reaction in favour of the principles which lie at the root of the great doctrine of freedom of contract.

In one department, that of the law of landlord and tenant, the interference has been most extensive. By a series of measures commencing in 1915, and now codified in one Act known as the Increase of Rent and Mortgage Interest Restrictions Act 1920, the landlord of a dwelling house or of business premises cannot raise the rent nor can a mortgagee increase his rate of interest, except to an extent allowed by the statute. And so long as such rent and interest is paid the tenant cannot be dispossessed, nor the mortgage called in.

By far the most important decision yet given on the Rent, etc., Restrictions Act, 1920, is that of the Court of Appeal in Barton & Mitchell . Fincham (Times, 9th February). It practically decides that contracting out is not allowable. The ground of decision briefly is that Section 5 of the statute places a clear restriction on the power of the Court to make an order for possession. This cannot be done save in a series of expressly excepted cases, and it follows that, for a landlord to obtain an order, he must bring himself within one of

the case referred to had not done; the tenant's agreement to give up possession was not an excepted case; hence the Court had no jurisdiction to make an order for possession. The County Court Judge, in granting an order for possession, took the broad ground that the tenant had got twenty pounds as consideration for waiving her statutory rights, and was estopped from setting them up. On appeal this decision stood because the two judges in the Divisional Court, Lush, J., and MacCardie, J., took opposite views as to the law. Mr. Justice Lush was strongly of opinion that it was quite opposed to "public policy" to permit the parties, landlord and tenant, to contract out of the statutory protection afforded to the house. Mr. Justice MacCardie, on the other hand, after a most elaborate and learned analysis of the effect of public policy in the construction of numerous statutes, held that interference with freedom of contract is more opposed to public policy than the protection of tenants who surrender their tenancy for a consideration which they afterwards feel to be inadequate.

In the Court of Appeal all three judges were in agreement. The Court was a strong one, consisting of Lords Justices Bankes, Scrutton, and Atkin. The simple point taken by all the judges was that Section 5 has limited the jurisdiction of the Court to make orders for possession; it cannot make such orders at all except where the conditions precedent prescribed by that section are proved to its satisfaction. Therefore, the landlord and tenant cannot give it jurisdiction by contracting out of the statutory prohibition. This, as a ground of judgment is narrow, but incidentally, although not necessary to the judgment which reversed the Courts below and reinstated the tenant in possession of her house, each of the three learned judges indicated approval of the view that "contracting out" of the statute is opposed to public policy. Lord Justice Scrutton pointed out that, if

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