in order to escape its performance. Neither does his death or interdiction so change the case, as to render it proper for his heirs or guardians to do that which he could not do for himself. Much as the law is bound to protect the interests of the insane, it is no less required to protect those who deal with them, unacquainted with their mental condition. It as often happens, that the same party suffers from the avoidance of the contract, as that the insane or his heirs do from its validity; and nothing can be more clearly unjust, than the application of a maxim or general rule that favors only the interests of the unsound party.

§ 8. Though little of this pertinacious adherence to merely technical distinctions is observed, in the application of the law to criminal cases, yet there is much of the same respect for antiquated maxims, that have little else to recommend them but their antiquity, and are so much the more pernicious in their application, as the interests of property are of less importance than reputation and life. It by no means follows, that a person declared to be non compos by due process of law, is to be considered, on that account merely, to be irresponsible for his criminal acts. This is a question entirely distinct, and is determined upon very different views of the nature of insanity, and of its effects on the operations of the mind; and, here it is, that the lawyer encroaches most on the domain of the physician. The first attempt to point out precisely those conditions of insanity, in which the civil and criminal responsibilities are unequally affected, was made by Lord Hale. "There is a partial insanity," says he, "and a total insanity. The former is either in respect to things, quoad hoc vel illud insanire. Some persons that have a competent use of reason, in respect of some subjects, are yet under a particular dementia, in respect of some particular discourses, subjects, or applications, or else it is partial in respect of degrees; and this is the condition of very many, especially melancholy persons, who for the most part discover their defect in excessive fears and griefs, and yet are not wholly destitute of the use of reason; and this partial insanity seems not to excuse them,

in the committing of any offence for its matter capital; for, doubtless, most persons that are felons of themselves and others, are under a degree of partial insanity, when they commit these offences. It is very difficult to define the invisible line that divides perfect and partial insanity; but it must rest upon circumstances duly to be weighed and considered both by judge and jury, lest on the one side there be a kind of inhumanity towards the defects of human nature; - or, on the other side, too great an indulgence given to great crimes." So strongly was this celebrated jurist possessed with the idea, that it is the strength and capacity of the mind only that are affected by insanity, that he has actually founded upon it a test of criminal responsibility. "Such a person," says he, "as laboring under melancholy distempers, hath yet ordinarily as great understanding as ordinarily a child of fourteen years hath, is such a person as may be guilty of treason or felony." As if the only difference between sanity and insanity were precisely that which is made by difference of age, and as if there could be two things more unlike than the mind of a person "laboring under melancholy distempers," and that of a child fourteen years old.

§ 9. The doctrines thus dogmatically laid down by Lord Hale, have exerted no inconsiderable influence on the judicial opinions of his successors; and his high authority has often been invoked against the plea of insanity, whenever it has been urged by the voice of philanthropy and true science. If, too, in consequence of the common tendency of indul gence in forced and unwarrantable constructions, whenever a point is to be gained, his principles have been made to mean far more than he ever designed, the fact impressively teaches the importance of clear and well-defined terms, in the expression of scientific truths, as well as of enlarged, practical information, relative to the subjects to which they belong. In the time of this eminent jurist, insanity was a much less frequent disease than it now is, and the popular notions concerning it were derived from the observation of

1 Pleas of the Crown, 30.

those wretched inmates of the mad-house, whom chains and stripes, cold and filth, had reduced to the stupidity of the idiot, or exasperated to the fury of a demon. Those nice shades of the disease in which the mind, without being wholly driven from its propriety, pertinaciously clings to some absurd delusion, were either regarded as something very different from real madness, or were too few, too far removed from the common gaze, and too soon converted by bad management into the more active forms of the disease, to enter much into the general idea entertained of madness. Could Lord Hale have contemplated the scenes presented by the lunatic asylums of our own times, we should undoubtedly have received from him a very different doctrine, for the regulation of the decisions of after generations.

§ 10. Judging from the few cases that have been reported, the course of practice in the English criminal courts has been in strict conformity to the principles laid down by Hale. For instance, in the trial of Arnold in 1723 for shooting at Lord Onslow, Mr. Justice Tracy observed, "that it is not every kind of frantic humor, or something unaccountable in a man's actions, that points him out to be such a madman, as is exempted from punishment: it must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast, such a one is never the object of punishment." This is but the echo of Lord Hale's doctrine, and the circumstances of the case show how faithfully the principles were applied. Arnold seems to have been of weak understanding from his birth, and to have led an idle, irregular, and disordered life, sometimes unequivocally mad, and at all times considered exceedingly strange and different from other people; one witness describing him as a strange, sullen boy at school, such as he had never seen before. It was testified by his family and his neighbors, that for several years previous, they had considered and treated him as mad, occasionally if not always, although so little disposed to mis

1

18 Hargrave's State Trials, 322.

chief, that he was suffered to be at large. Contrary to the wishes of his friends, he persisted in living alone in a house destitute of the ordinary conveniences; was in the habit of lying about in barns and under hay-ricks; would curse and swear to himself for hours together; laugh and throw things about the house without any cause whatever, and was much disturbed in his sleep by fancied noises. Among other unfounded notions, he believed that Lord Onslow, who lived in his neighborhood, was the cause of all the tumults, disturbances, and wicked 'devices that happened in the country, and his thoughts were greatly occupied with this person. He was in the habit of declaring, that Lord Onslow sent his devils and imps into his room at night to disturb his rest, and that he constantly plagued and bewitched him, by getting into his belly or bosom, so that he could neither eat, drink, nor sleep, for him. He talked much of being plagued by the Bollies and Bolleroys; he declared in prison it was better to die than live so miserably, and manifested no compunction for what he had done. Under the influence of these delusions, he shot at and wounded Lord Onslow. The proof of insanity was strong enough, but not that degree of it, which the jury considered sufficient to save him from the gallows, and he was accordingly sentenced to be hung. Lord Onslow himself, however, thought differently; and, by means of his intercession, the sentence was not executed, and Arnold was continued in prison for life. It is clear, that the court recognized that class of madmen only, as exempted from the penal consequences of crime, whose reason is completely dethroned from her empire, and who are reduced to the condition of an infant, a brute, or a wild beast. If it be true, as the court said, that such are never the objects of punishment, though it neglected to state that they are never the objects of prosecution, the converse must be equally true, that those not exactly in this condition can never avoid punishment on the plea of insanity. It appears, then, that the law at that time did not consider an insane person irresponsible for crime, in whom there remained the slightest vestige of rationality; though it did then, and has ever since deprived him of the management

of himself and his affairs, and vitiates his civil acts, even when they have no relation to the delusions that spring from his madness. That the progress of science and general enlightenment has produced no improvement of the law on this subject, is abundantly shown in the strong declarations of Sir Vicary Gibbs, when attorney-general of England, on the trial of Bellingham, in 1812. "A man," says he, "may be deranged in his mind, his intellects may be insufficient for enabling him to conduct the common affairs of life, such as disposing of his property, or judging of the claims which his respective relations have upon him; and if he be so, the administration of the country will take his affairs into their management, and appoint to him trustees; but, at the same time, such a man is not discharged from his responsibility for criminal acts." Lord Erskine had previously given the same doctrine the sanction of his authority, in his celebrated speech in defence of Hadfield. "I am bound," he says, " to admit that there is a wide distinction between civil and criminal cases. If, in the former, a man appears, upon the evidence, to be non compos mentis, the law avoids his act, though it cannot be traced or connected with the morbid imagination which constitutes his disease, and which may be extremely partial in its influence upon conduct; but, to deliver a man from responsibility for crimes, above all, for crimes of great atrocity and wickedness, I am by no means prepared to apply this rule, however well established when property only is concerned."

§ 11. That a person, whom the law prevents from manag ing his own property, by reason of his mental impairment, should, in respect to criminal acts, be considered as possess ing all the elements of responsibility, and placed on the same footing with men of the soundest and strongest minds, is a proposition so strange and startling, that few, uninfluenced by professional biases, can yield to it unhesitating assent, or look upon it in any other light, than as belonging to that class of doctrines which, while they may be the perfection of

1 Collinson on Lunacy, 657.