tions of crime, not being perverted by the influence of disease, present its hideous outlines as strongly defined, as they ever were in the healthiest condition; and the disapprobation they express at the sight arises from sincere and honest convictions. The particular criminal act, however, becomes divorced in their minds from its relations to crime in the abstract; and, being regarded only in connection with some favorite object which it may help to obtain, and which they see no reason to refrain from pursuing, is viewed, in fact, as of a highly laudable and meritorious nature. Herein, then, consists their insanity, not in preferring vice to virtue, in applauding crime and deriding justice, but in being unable to discern the essential identity of nature between a particular crime and all other crimes, whereby they are led to approve what, in general terms, they have already condemned. It is a fact, not calculated to increase our faith in the march of intellect, that the very trait peculiarly characteristic of insanity, has been seized upon as a conclusive proof of sanity in doubtful cases; and thus the infirmity that entitles one to protection, is tortured into a good and sufficient reason for completing his ruin.

§ 18. If this power of distinguishing right from wrong do really indicate soundness of mind, it may be justly complained, that the question of its existence is never agitated in any but criminal cases, while it certainly should be whenever the rights and liberties of the insane are to be invaded. If it is proper to make those who possess this power responsible for their criminal acts, how unjust and absurd is it to deprive them of their liberty, and seclude them from their customary scenes and enjoyments, before they have violated a single human law. Undoubtedly, this measure would be conducive to their good, by taking from them effectually the opportunity of injuring the persons or property of themselves or others; and so it would be for every other unprincipled and reckless individual who bids fair to be a pest to society. But if it is alleged, that the latter are morally free, and, therefore, are personally free, until the commission of some overt act, it may be replied, that the former, on the hypothesis of the law,

which makes moral freedom consist in the power of distinguishing right from wrong, have the same claim to immunity from personal constraint. This preposterous distinction between civil and criminal cases, gives rise in practice to one of the most curious and startling inconsistencies that human legislation ever presented. While the mental impairment is yet slight, comparatively, and the patient is quiet and peaceable, the law considers him incapable of managing himself or his worldly affairs, and provides him with a guardian and a place in the wards of a hospital; but when the disorder has proceeded to such a height as to deprive the maniac of all moral restraint, and precipitate him on some deed of violence, he is to be considered as most capable of perceiving moral distinctions, and, consequently, most responsible for his actions!

§ 19. The qualifications with which some of the latest writers have promulgated this test of responsibility, encourage the hope, that it will ere long be viewed in a very different aspect. A disposition to disregard the old landmarks on this point was manifested, not long since, by Lord Lyndhurst, in the case of the King v. Orford, when he directed the jury to acquit the prisoner, if satisfied, "that he did not know, when he committed the act, what the effect of it, if fatal, would be with reference to the crime of murder; "1 in other words, they were to satisfy themselves, before acquitting him, that he did not know that the act would be essentially murder, that crime which in the abstract is equally abhorred by the sane and the insane.

Still, how

1 5 Carrington and Payne, 168. The defendant, in this case, was tried for murder. It appeared that he entertained the notion, that the person whom he shot and many others were desirous of depriving him of his liberty, and had accordingly conspired together to accomplish their purpose, and, under the influence of this delusion, he would abuse people whom he met in the streets, though wholly unacquainted with them. In his pocket was found a paper purporting to be "a List of Hadleigh Conspirators against my Life," in which he had enrolled the names of the deceased and his family. Several medical witnesses who heard the evidence, deposed that the prisoner was affected with monomania.

ever, this is not sufficient, for he might, like Hadfield and many others, have recognized the wrong and illegality of the act, and been perfectly conscious of its consequences to himself, while he felt impelled to its execution by a voice from heaven, or by a strong conviction of certain great ends which it was to promote, and thus have acted the part, if the expression may be allowed, of an insane Abraham or Brutus. This principle, therefore, is far from being universally applicable, though if it had been admitted in the case. of Bellingham, it would have produced the acquittal of that unfortunate man. The criminal act which he committed. was not viewed by him at all as one of murder, any more than the killing of a brute for the same purpose, but merely as a disagreeable though justifiable method of bringing his affairs before the country, and obtaining redress for his manifold wrongs and sufferings. And yet Lord Lyndhurst, in this very case, expressed his approbation of the doctrines laid down by Lord Chief Justice Mansfield on the trial of Bellingham,doctrines which he had found it necessary here to modify, in order that they might afford to an innocent man the protection to which he was entitled! Mr. Chitty seems inclined to proceed a step farther on this point. "The substantial question presented to the jury," he observes, "is, whether, at the time the alleged criminal act was committed, the prisoner was incapable of judging between right and wrong, and did not then know he was committing an offence against the law of God and of nature." By some late Scotch writers on criminal law, this test of responsibility has been disapproved of, in still more explicit terms. Baron Hume disposes of it in the following language: "Would he have answered on the question, that it is wrong to kill a fellow creature? this is hardly to be considered a just criterion of such a state of mind as ought to make him answer to the law for his acts. Because a person may happen to answer in this way, who is yet so absolutely insane as to have lost all power of observation of facts,

1 Medical Jurisprudence, 354.

all discernment of the good or bad intentions of those who are about him, or even the knowledge of their persons. Besides, the question is put in another and a more special sense, as relative to the act done by the panel, and his knowledge of the place in which he did it. Did he at that moment understand the evil of what he did? Was he impressed with the consciousness of guilt and fear of punishment? — it is then a pertinent and a material question, but one which cannot be rightly answered, without taking into consideration the whole circumstances of the situation. Every judgment in the matter of right and wrong supposes a case, or state of facts to which it applies. And though the person may have that vestige of reason which may enable him to answer in the general, that murder is a crime, yet if he cannot distinguish a friend from an enemy, or a benefit from an injury, but conceives every thing about him to be the reverse of what it really is, and mistakes the ideas of his fancy in that respect for realities, those remains of intellect are of no sort of service to him in the government of his actions, in enabling him to form a judgment as to what is right or wrong on any particular occasion." From all this, Hume draws. the broad conclusion, that the judgment of right and wrong has nothing to do with the question of responsibility. This view of the subject is certainly liberal enough, and increases our regret, that it should be contrasted in a subsequent stage of his remarks, by one of those vague and senseless notions, that seem to have obtained a prescriptive place in the books on criminal law. "It is not to be understood," he continues, "that there is any privilege of mere weakness of intellect, or of a strange and moody humor, or of a crazy and capricious, or irregular temper and habit. None of these things either are, or ought to be law." When all these traits are observed in an individual, or any one of them in a remarkable degree, there is great reason to suspect the existence of insanity, and the most faithful means should be resorted to, in order to determine this fact. In the great majority of cases, the sus

1 Commentaries on the Law of Scotland respecting Crimes, I, 36.

picion will prove to be well founded, and the judgment of right and wrong on "particular occasions" to be completely perverted. These traits of character must not be considered as they too generally are, in and by themselves exclusively, and unconnected with the previous moral and intellectual habits of the individual, but as symptoms of a deviation from the normal condition of pathological changes in the action of the cerebral organism. When viewed in this light, they will be examined with the patience and intelligence necessary to establish, beyond doubt, the existence of that insanity of which they are the almost certain signs, instead of being hastily dismissed, as only the marks of an ill-governed, malicious temper.

§ 20. Mr. Alison lays down the principle, that "to amount to a complete bar to punishment, the insanity, either at the time of committing the crime, or of the trial, must have been of such a kind as entirely deprived the accused of the use of reason, as applied to the act in question, and the knowledge that he was doing wrong in committing it." This is all very clear and rational, but a subsequent remark shows, that in his struggle with the errors of the law, he had not completely emancipated his mind from their binding influence. "Anything,” he observes, "short of this complete alienation of reason, will be no defence; and mere oddity of manner, or half-craziness of disposition, if unaccompanied by such an obscuring of the conscience, will not avail the prisoner." The idea that "anything short of complete alienation of reason will be no defence," is not only at variance with his previous qualification, that this loss of reason must be in reference "to the act in question," but is identically the doctrine of the last century, the fallacy of which was clearly exposed by Erskine in Hadfield's case. What is precisely meant by such vague phraseology as "half-craziness of disposition," it would be hardly worth while to inquire; it is enough to say, that, taking the language in its most natural and obvious signification, the mental condition expressed by

1 Commentaries on the Law of Scotland, etc., 645.