themselves on the railings, others rolled about in the grass-in fact, little nigs swarmed everywhere; for the news that "Marse' Linkum's men" had come had spread like wildfire around the place; and as Uncle Lamb led the horses away to water, each saddle was crowned with a little grinning sprout of Ethiopia. But Venus's despotic sway reached a culminating point when, not long after this, her mistress married a Baptist minister who owned an adjoining plantation. He proved a stern master-one who believed slavery a “divine institution." "Servants, obey your "Servants, obey your masters," was a text from which, more Sundays than one, Venus herself had heard him harangue the crowd of black folks, seated at the back part of the little country church. And great was her glorification, when, in a very short space of time after the "new marse"" assumed the reins of government, she saw Georgianna hired out for six months, as a punishment for disorderly conduct. For a while this warning that insolence would no longer go unpunished seemed to serve as a slight check upon her own hitherto uncontrolled tongue and temper. But one day, under some slight provocation, she let loose all this pent-up vituperation on the head of her mistress, saying most unpardonable things. Mrs. Blaydes, roused to unwonted indignation, sharply reprimanded her, and even went so far as to say that she would see to it that she also should be hired out to some strict master who would find means to correct her vicious ways and ugly temper, if ever again she so transgressed the bounds of decency and respect. This threat proved of no avail, save to intensify Venus's wrath. Apparently insane for the moment, with demoniacal fury she seized a knife which lay on a table near her, and flourishing it in her mistress's face, threatened her with an appalling fate should such a humiliation ever be practiced on her. The evil spirit which had so long prompted her seemed at last to have taken full possession of her, with intent to drive her on to the disgraceful fate awaiting her. Turning towards the door when her rage had somewhat spent itself, she found herself confronted by her master, who was standing there, the unnoticed hearer and observer of the scene. Entering the room, he pointed to the door, but uttered not a word. His look, however, was sufficient. The lightning of his eye was not to be defied. Early the next morning, just at sunrise, I was awakened from sleep by a sound of entreaties and cries. Directed by the noise to the window looking out on the rear of the house, I went thither, and at first glance saw a sight that fairly stupefied me with astonishment. that no slave on that place had ever felt the disgrace of the lash. Yet there was Venus, with her back bared for the punishment. Surely, I thought, I must be dreaming. "Can I be awake?" I said, rubbing my eyes. Yes, I was wide awake. Her hands were tied together and fastened to one of the posts of the rude porch over her kitchen door. By her side stood a negro man, from her new master's plantation, holding in one hand a small bundle of lithe switches, in the other an uplifted rod, awaiting the order to descend, from the lips of his master, who sat on a log near by, smoking a cigar and listening to Venus's humbled tones entreating forgiveness, which I silently prayed might be granted. But when I recalled the terrible look with which he had the day before driven her from his presence, and noted his present air of unconcern, I felt that there was no hope. Her mistress's intercession in her behalf, which I learned had been tearful and persistent, had proved unavailing. It was a well-known fact "She shall be whipped at sunrise to-morrow," was the unswerving answer. When I saw the first stroke descend and heard the cry of pain that followed, I crept back to bed, feeling a sense of deathly sickness stealing over me; and drawing the coverlets over my head, I tried to shut out the cries and prayers ringing in my ears. At breakfast we were a silent family. The mistress did not appear until evening. One thought was uppermost in the minds of us all during the unusually quiet day that followed, but none spoke it. The next morning insane and those only partially so, the latter derangement." This dictum, then, asserted, being those not wholly destitute of reason. as the criterion of legal responsibility for "This partial insanity," he added, "seems crime, the prisoner's general ability to disnot to excuse them in the committing of tinguish right from wrong—a test entirely any offense for its matter capital." The different from the test of Lord Hale and distinction thus pointed out was acted upon Mr. Justice Tracy. in later cases, and the legal responsibility of the prisoner decided by the question whether he was wholly or only partially insane. "It is not every kind of frantic humor," said Mr. Justice Tracy, in 1723, at the trial of Arnold for shooting at Lord Onslow, "or something unaccountable in a man's action, 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." Such was the early test of criminal responsibility —a test referred to by Dr. Maudsley as "the wild-beast test," and now generally acknowledged to be wrong. Lord Mansfield's dictum was followed by a period in which the courts seem not to have definitely agreed upon any particular test, and to have fluttered in an uncertainty which was finally settled, at least for England and for that time, by the famous trial of McNaughten. McNaughten had shot and killed a Mr. Drummond under a delusion that the latter was persistently following him about, maligning his character and ruining his happiness. On his trial, in 1843, though he seemed to have acted rationally enough in regard to his ordinary business, he was acquitted on the ground of insanity. Thereupon the House of Lords, feeling the necessity of some definite and authoritative statement of the proper test of criminal responsibility, propounded to the judges certain questions on the subject; and the answers of the judges to these questions for a long time governed the decisions of all courts. Three extracts from these answers1 will give the essence of them: 1. "To establish a defense on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong." This early test was effectively questioned and was discarded (at any rate, by the jury who acquitted the prisoner) on the trial of Hadfield, in 1800, for shooting at the king. Mr. Erskine, who defended the prisoner, declaimed against the absurdity of the old criterion-the wild-beast test-and argued that no such madness ever existed; that insane persons had the most perfect knowledge of their surroundings and acts, and had, in general, been remarkable for their subtlety and acuteness; and that delusion was the kind of insanity that should be exempt from punishment. "Delusion, therefore, where there is no frenzy or raving madness, is the true character of insanity." But the first important judicial modification of Lord Hale's doctrine was in 1812, when, at the trial of Bellingham for the murder of Mr. Spencer Perceval, Lord Mansfield, in speaking of persons who acted under the delusion of a fancied injury, said that "if such a person were capable, in other respects, of distinguishing right from wrong, there was no excuse for any act of atrocity which he might commit under this description of 67, p. 728. 2. "If a person, under an insane delusion as to existing facts, commits an offense in consequence thereof," then, "on the assumption that he labors under a partial delusion only, and is not in other respects insane, he must be considered in the same situation as to responsibility as if the facts, with respect to which the delusion exists, were real. For example: if, under the influence of delusion, he supposes another man to be in the act of attempting his life, 1 See 10 Cl. & Fin. 210; also Hans. Parl. Deb., vol. 3. Lastly, it is said that, notwithstanding his delusion, the prisoner "is, nevertheless, punishable if he knew, at the time of committing such crime, that he was acting contrary to the law." and he kills that man, as he supposes, in from the tests applied in the earlier English self-defense, he would be exempt from pun- cases. While Lord Hale and Mr. Justice ishment. If his delusion was that the Tracy had exempted from liability only deceased had inflicted a serious injury to those who had "neither memory nor underhis character and fortune, and he killed him standing of any sort," and while Lord in revenge for such supposed injury, he Mansfield had exempted only those who would be liable to punishment." lacked a general capacity for distinguishing right from wrong, both of these tests are here abandoned, and there is first substituted for them the test of whether the prisoner knew that he was doing what was wrong. That is, for Lord Mansfield's test of a general appreciation of right and wrong is substituted the appreciation of the rightfulness or wrongfulness of the particular act constituting the crime. The doctrine thus laid down in 1843 has, as was said above, been extensively followed since, and is the accepted law in California. In the cases of The People v. Coffman1 and The People v. Hoin,2 decided in 1864 and 1882 respectively, the answers of the judges to the House of Lords are referred to and adopted almost verbatim. The same may be said of Judge Cox's charge in the Guiteau trial, where, after telling the jury that they must decide whether the shooting of President Garfield prisoner's own act or the result of a mental disease, the judge added that, in determining this question, they must simply consider whether or not, at the time of the shooting, Guiteau knew the moral nature of the act he was committing, whether or not he knew that it was wrong: if he did, they must find him sane. Now it is clear from these extracts that several different tests are proposed by them. Considering the first and third extracts together, it is evident that the prisoner's knowledge that he was acting contrary to law is a very different thing from his knowledge that he was doing what was wrong, since almost any one's conviction of the rightfulness of an act, in se, is not at all unlikely to co-exist with a complete knowledge of its illegality. The test of the second extract, moreover, differs from both the others; and by assuming as true facts the phantasms of the lunatic's delusion, boldly attempts to judge him on that basis. It seems to aim at probing the conscience of the prisoner at the time he was committing the crime; and yet it asks no question as to whether he knew the wrongfulness of that act, or its illegality, or whether he had the power to refrain from it; but says that, while admitting that the data on which he acted were furnished by a diseased mind, yet it will assume him to have reasoned correctly from those data-will assume him to have understood that his act was wrong or was illegal, and to have had the power to refrain from it; and will punish him just as it would punish a sane person who had acted under the same data. The scientific inaccuracy and the confusion of purpose involved in this second extract are too evident to require comment. But it is the test of the first extract-the "right and wrong" test-which has proved most useful to the courts, and which has been most extensively followed. And it is evident that this test is essentially different was the Since the establishment of this "right and wrong" test in England, some of the American courts have adopted tests of criminal responsibility which differ from any of the tests that have been mentioned above. The Pennsylvania courts, for example, scrutinize the prisoner's power of self-control, rather than his appreciation of the moral nature of his act; while New Hampshire courts apply no test whatever, but leave to the jury the broad question of whether or not the prisoners act was the 24 Cal. 230. 1 2 10 P. C. L. J. 403. result of insanity. But, although these courts have not been without others who followed their example, yet by far the greater number of the American courts have followed strictly in the line of the English decisions; and the "right and wrong" test, enunciated in the replies of the judges, is the predominant test in America, as well as in England.1 So much for the doctrines of the courts concerning criminal responsibility. Now, how have the scientists agreed with them? Their doctrines have been very different. Amongst physicians, especially amongst those who devote themselves to the study of mental disease, the judicial tests of responsibility have been generally condemned. Why make the perception of the wrongfulness or illegality of the criminal act the test of responsiblility, say the doctors, when it is known by every one who deals with insane persons that many of them have the most perfect knowledge of the nature and consequences and moral wrong of their acts? Think of the cases where insane persons have asked for protection against themselves, have feared that they would commit some terrible crime if the opportunity to do so were not taken from them; think of the man who felt the impulse to kill his little girl coming over him, and who called out to her to leave the room, because he feared that if she remained he would yield to his impulse; or of the lunatic in the asylum who, as the physician entered his room, threw his knife and fork violently out of the window, because, as he afterwards said, a sudden desire to kill the physician had come upon him, and he knew he could not resist it if the weapons for the deed were in his hands. These are cases on the borderland of insanity-cases, therefore, by which we are able to follow the transition from the sane state to the insane; and does it not appear from these cases, and from the dozens 1 This "right and wrong" test has been adopted by the Supreme Courts of the following states:-Maine, New York, New Jersey, Delaware, North Carolina, Georgia, Louisiana, Alabama, Mississippi, Virginia, Texas, Tennessee, Missouri, Wisconsin, Nebraska, and California. of others like them, that the strength of the criminal impulse in the lunatic co-exists with the most exact knowledge of the wrong he is about to do—nay, even of the remorse that he is sure to feel after the act is done? In these cases, there remained sufficient will-power, sufficient self-control, to check the crime by destroying the opportunity. In a more advanced case of insanity, the will would have been weaker, the impulse would have conquered, and the criminal act have been committed, all with a complete knowledge of the wrongfulness of the intended act, of its illegality, and of the pain and horror that it would entail upon him who committed it. Who can doubt, then, that, under the test proposed by the English judges and applied in California, many a person might be punished for an act which was no more the result of his own volition than are the blows that are given by a man who has fallen in an epileptic fit? It would be better, say some of the doctors1 (and some of the judges, also 2), to substitute irresistible impulse as the test, and to exonerate those whose criminal acts were caused by an impulse that was beyond their control. And yet, say other doctors, it must be acknowledged that the criterion of an irresistible impulse would be about as unsatisfactory and as unscientific as the test proposed by the English judges. It is certain that many criminals who have acted without any such impulse as is here spoken of,-many, even, who have shown, at the time of their crimes, the utmost calmness and deliberation,—have yet committed their crimes solely by reason of insanity; and such men would receive no better protection from the test of an irresistible impulse than from the English "right and wrong" test. Maudsley mentions the case of a young man who had an insane propensity for watching the revolutions of windmills; for hours he Would sit on the hillside, near a number of windmills, and gaze at them. The insanity Dr. 1 See Taylor's Med. Jurispr. (2nd Am. ed.) p. 640. 2 See Commonwealth v. Haskell, 2 Brewster (Pa.) Rep. 491. |