ON CRIMINAL RESPONSIBILITY.

By EWING WHITTLE, M.D., M.R.I.A.,

LECTURER ON MEDICAL JURISPRUDENCE TO THE LIVERPOOL ROYAL INFIRMARY SCHOOL OF MEDICINE.

I VENTURE to bring the subject of criminal responsibility before this Society, in the hope of directing attention to certain anomalies that exist in, or rather between the theory and the practice of, the law of England on the subject. Broadly stated, the theory of the law is, that every man is responsible for his actions, unless at the time of committing any offence he is of unsound mind to an extent which renders him incapable of judging between right and wrong.

Now, if we turn to the practice of the courts, we shall find that this theory is continually set aside; for instance, we find cases of persons arraigned on the charge of committing atrocious crimes, who are perfectly aware of the wickedness of the act, and who are nevertheless acquitted on the ground of insanity on very meagre evidence; on the other hand, we have similar cases, in which, notwithstanding the strongest evidence to show the prisoner's insanity, he has been convicted and sentenced, being held responsible for his crime to the fullest extent; as an example of the first, I will instance the case of Mary Cullen, who was indicted at the Wexford Summer Assizes, 1846, for the murder of her brother, whom she had poisoned by arsenic, put into a mess of porridge; four persons who partook of the porridge died. The prisoner was acquitted on the plea of moral insanity.

On this case, Dr. Geoghegan, of Dublin, remarks, "no

indication of mental unsoundness was discoverable on careful examination, either by the physician to the gaol or by myself, nor (as I am informed by a late visitant of the lunatic asylum) has the prisoner since shown any signs of insanity' (written in 1851). "If not traceable to other influence, the crime may have been committed under that condition of moral perversity not uncommonly observed in the hysteric state. Whether such disturbance of the affective faculties only should absolve from criminal responsibility has been. lately the subject of much and subtle discussion amongst psycologists; nor is the question as yet satisfactorily adjusted." Side by side with this case, I may allude to that of Oxford, who is even now confined for life as insane, on account of having fired a pistol at her Majesty many years ago; the proof of insanity in his case was of a very meagre character: the real cause of his acquittal on the ground of insanity, being evidently the unwillingness of the jury to consign to the gallows a weak-minded and vain young man, carried away by a morbid desire for notoriety and attempting a great crime, which happily was unattended by any serious consequences except to himself. In opposition to these cases, I will now instance the cases of the wretched man Jeffries, and of the man Clarke, who in 1862 murdered the tax-collector in Newcastle-on-Tyne.

Jeffries, without

being in any respect insane intellectually, appears to have been driven to murder his child under the pressure of a persistent impulse, which at last became irresistible. He was condemned and executed. Clarke, of Newcastle, though admitted to be insane, was convicted, and would have been executed but for the energetic action of the public and the pressure made on the Home Office.

The point which I seek to establish by these cases is, that the English law is defective, in not recognising degrees of responsibility; I hold that we have frequently cases of

criminals who have the power to a certain extent, but to a certain extent only, of resisting the promptings to crime; we have a familiar example of this condition of mind in suicides, who have long been oppressed by the persisting impulse to commit self-destruction; who have long fought against, and even taken precautions against it, such as requesting friends to have razors and other things, which they might use for the purpose of self-destruction, removed out of their way; and yet these very people are in some cases carried away by an impulse which at last becomes absolutely beyond their control, and they consummate the act of self-destruction, perhaps tempted by the accidental presence of a razor, a rope, or a pool of water. Now I maintain the proposition, that there frequently is in some criminals the same partial control over their impulses to commit crimes, even murder; that this partial control is often successful; then it never comes before the public; in other cases the struggling will is overpowered by the morbid impulse, and the crime is committed. I will briefly cite one case in illustration of this point. A young woman was attending an old lady as half nurse and half companion; she was for the most part employed in reading to her, chiefly tales of horror, or newspaper accounts of murders. After some time she became affected with a desire to strangle the old woman; there was no offence taken by her, no cause of quarrel, not the shadow of a motive; yet she felt this impulse growing upon her to such a degree, that at last she fled to an asylum, told the circumstances, and begged to be taken in. It was found that she was suffering from derangement of the digestive organs, consequent on her close attention to the old lady, but there was no mental affection whatever. She completely recovered in a short time. Place in this young woman's stead, a person of less energetic will, and the denouement would, in all probability, have been the commission of a horrible crime, as

without meaning as the wildest act of any maniac. These are the sort of cases in which I think it would be wise in the law to recognise a degree of minor responsibility. This principle in criminal law is not a novelty. It is recognised both by the Prussian common law, and the Austrian penal regulations. In French law, though not avowedly admitted, the principle is accepted in their verdicts of extenuating circumstances. It may be said that the English law does recognise degrees of criminality, in its distinction between murder and manslaughter; true, it does so, but these are degrees in criminality, and not in responsibility; but if murder, arson or theft is committed, the criminal is assumed by the law to be sane, and consequently fully responsible for his acts; if the prisoner be defended on the ground of insanity, it is for the defence to prove, to the satisfaction of the court and jury, that the prisoner was so far of unsound mind as not to be able to distinguish right from wrong; the practice generally is for the court to be satisfied if it can be proved that the prisoner is the subject of delusion. The consequence is that very vicious prisoners are sometimes acquitted, on the ground of insanity, and so escape all punishment for their crime, except the loss of their liberty; while, on the other hand, prisoners have been executed who, though not proved to be intellectually insane, may have been as incapable of resisting the impulse to murder as a wild animal is to resist the instinct which impels it to seize upon its prey. It is difficult to give an instance of these cases, for after the man is hanged, it is then too late to prove his insanity. But in the case of Dove, who was hanged for poisoning his wife with strychnine, we have an instance of a man, whose intellectual condition was not much above that of an idiot, and whose moral faculties seemed wholly undeveloped, and who seemed to be led to poison his wife, merely by hearing the gossip in public houses about Palmer's murders,

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and, in committing the crime, being, apparently, as little actuated by mind as a monkey is in playing any of its mischievous tricks. Now, though it be necessary that such a wretch should be confined for life, and I think useful, that he should also be subjected to other punishment, judiciously applied,—I think it neither tends to the edification nor advantage of society that such a wretch should be hanged as a criminal. The adoption of this principle of limited responsibility in law, would involve to some extent, the recognition of moral insanity as an actual disease that it is in any sense a special disease, is, I admit, denied by very high authorities; among others by Caspar, who argues that crimes of this kind are either caused by a high degree of depravity, or that the criminal is really insane, and driven to commit the crime either from excited fancy, or from being carried away by a fixed idea. He cites the case of a lady, who was tormented for a long time by the fixed idea that she must kill her governess, a lady with whom both she and all the family were on terms of the closest intimacy and affection. By Caspar's advice, this lady was taken on a lengthened tour through France and Italy, away from the governess she returned home quite well, cured of her fixed idea, or of her moral insanity, whichever you choose to call it. Caspar states that she was throughout perfectly free from disease, either bodily or mentally; but I think most persons will agree with me that this fixed idea indicated for the time a diseased condition of the moral faculties.

A further argument may be derived from the fact, that moral is generally one of the earliest symptoms of intellectual derangement. I met, in my own practice, with a case in which a woman made several attempts to murder her children; she showed no symptom of intellectual derangement; she was confined in an asylum for a short period, but