was, apparently, harmless enough; but his relatives, wishing to restore him to health, removed him to a part of the country where there were no windmills. Within a month after his removal, and apparently without the slightest motive, he set fire to the house he was living in, and attempted to murder a child whom he had enticed into the woods; and when questioned about these acts, he confessed that he had committed them that he might be taken back to his former home: he knew that, if he behaved badly enough in his new place, his friends would take him back to where he could again watch his beloved windmills. Another case is that of a boy who committed a most horrible murder a murder more inhuman and more brutal, said the judge, than any that he had met with in all his experience. The boy confessed the murder, and was hanged for it; and gave, as his reason for committing it, the fact that he thought it would be pleasant to be hanged, and had made up his mind to be hanged. Throughout the trial he seemed perfectly satisfied; and, when the sentence of death was passed upon him, he looked up to the judge with the greatest cheerfulness, and said, "Thank you, my lord." Now, in both of these cases, the criminal acts had been deliberate, and committed in the pursuance of a definite plan; in both, the criminals had been conscious of the wrongfulness and illegality of what they were doing; and although both of these persons were undoubtedly insane, and committed these acts solely on account of their insanity, yet they would not be found to be insane either by the "right and wrong" test of the English courts, or by the "irresistible impulse" test of the Pennsylvania courts. Both of these tests are wrong. In fact, say the doctors, any one test is wrong. Science shows no one test, no ten tests, by which it can be determined whether the act is the result of the actor's disease or of his individual will and choice; and whether the act is the result of the one or of the other can be determined only by an investigation into all the circumstances of the case. Such must be the scientific scrutiny of the problem; then why

should the legal scrutiny be different? the jury have all aid from experts to help them to know and appreciate all the phenomena of the conduct, appearance, and circumstances of the accused; let them receive the expert testimony on the question as they would on any other question; and let them then be instructed by the court, not that this or that thing is to be taken by them as the test of the prisoner's insanity, but that they are to decide, from all the evidence, whether the criminal act was his act or was the result of mental disease.

This view has been most vigorously expounded by Dr. Maudsley, in his "Responsibility in Mental Disease," and has become the adopted practice of some of the ablest courts in this country. Indeed, as a rule of procedure, it is not easy to see what objection there is to it, or what reason there is in support of practice of the opposite sort. The question of insanity, being one of fact, should be a question for the jury alone to decide. And how can a judge be not going beyond his functions when he sifts the evidence that goes to the jury, and tells them they are to consider only such evidence as shows an irresistible impulse, or an ignorance of right and wrong, or anything else of the sort? Suppose the question before the jury were not one of insanity, but one of poisoning. Suppose what they had to decide was whether or not the deceased had died from the effects of arsenic. And suppose that some of the experts had testified that in every case of arsenious poisoning they would expect to find the stomach, after death, inflamed and covered with white blotches; while other experts had denied the necessary existence of the white blotches in such a case. What, then, would be thought of a judge who should instruct the jury, not that they were to decide from all the evidence whether or not the deceased was poisoned by arsenic, but whether or not there were found white blotches on the stomach; and that, if they should conclude

1 State v. Pike, 49 N. H. 399; State v. Jones, 50 N. H. 354; Hopps v. People, 31 Ill. 385; Stevens v. State, 31 Ind. 485.

that there were no white blotches, they must decide against the poisoning? Such a charge would be an absurdity. And are not the ordinary charges in insanity cases entirely analogous to this one? Even did scientists agree upon some single test of insanity and of moral irresponsibility, it would be contrary to all precedent and to all rule for a judge to assume the functions of an expert witness, and prescribe that test to the jury. How much more dangerous, then, is it for a judge to expound and prescribe a test which scientists have not agreed uponexcept in agreeing to condemn it. "That cannot be a fact in law," says Mr. Justice Doe, of the New Hampshire court, "which is not a fact in science; that cannot be health in law, which is disease in fact; and it is unfortunate that courts should maintain a contest with science and the laws of nature, upon a question of fact which is within the province of science and outside the province of law." "And even if it is necessary," says the same judge, "that the law should entertain a single medical opinion concerning a single disease, it is not necessary that that opinion should be the cast-off theory of the physicians of a former generation." The prevalent doctrine of the English and of most American courts on the question of insanity in effect ignores all the progress which the science of this disease has made during the present century it ignores, in fact, the scientific nature of the problem they are dealing with; and the result is the scientific and the legal confusion that we see. The judge's charge, instead of being a statement of law for the guidance of the jury, amounts, rather, to a running commentary on the indications of disease as given by the experts. The judge, in fact, is a sort of chief-expert-not only giving expert testimony himself, but ordering the jury to consider no testimony which conflicts with his.1

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1 The position of New Hampshire courts, in spite of its strength, has not been free from the attack of more than one well-known writer on medical jurisprudence. The reasoning of these courts may be very good, says Dr. Wharton, (in his Mental Unsoundness) but they seem to forget that the point to be determined is not

We have now considered the arguments of the doctors and the practice of the courts sufficiently to see the truth of the opening statement of this paper-that, in their doctrines of the responsibility of the insane, the courts have shown an astonishing inconsistency and inaccuracy. The legal error of allowing the judge to take the position of an expert witness and to dictate to the jury on a question of fact, and the scientific error of maintaining a single test of a disease which, all specialists say, can be detected by no single test-these two errors seem to have been avoided only by the New Hampshire courts and the few others that have followed their example. The other courts, amidst a variety of doctrines upon this subject, have shown an unvarying inaccuracy and error.

Yet we cannot ask the cause of all this variety, or of the earnestness of Dr. Maudsley with his view and of Dr. Wharton with his, without speedily concluding that the New Hampshire courts have only partially corrected the scientific error, and that Dr. Maudsley has pointed out only half the lesson that a scientist ought to point out. If Dr. Wharton has maintained the justice of an evidently unscientific test, (the "right and wrong" test) it has been because, as he himself says, he is looking at the responsibility, not the insanity, of the accused; it is because those insane criminals who knew that they were doing wrong, and who get no protection from the test he upholds, are. morally bad, and ought not to be protected from the responsibility for their the insanity, but the moral responsibility, of the accused; for, while all the facts of the case should be considered if we had to determine the sanity or the insanity of the prisoner, yet, in determining his responsibility, his knowledge of the rightfulness or wrongfulness of his act is evidently the proper test. The reply to this

argument is evident: it is no more possible to determine the moral responsibility of the accused by any one test than to determine his insanity. What would Dr. Wharton say about the application of his test to the cases already mentioned, where insane persons have sought for protection against their own insane impulses ? Are such persons to be morally condemned because they knew the wrong of an act from which they could not refrain? And what becomes of Dr. Wharton's argument in the presence of a statute which says (as our statute says) that no idiot or insane person can commit a crime?

acts.

The language of the "replies" of the English judges (especially the second extract, about assuming the delusion to be true), the charge of Judge Cox in the Guiteau case, and the words of Dr. Wharton in his criticism of the New Hampshire courts-all these show that what these persons were scrutinizing with their tests was the moral character of the prisoner's mind at the time he committed the crime: if it was bad, he must be punished, they say; if not, he must be acquitted. And if Dr. Maudsley, on the other hand, has strenuously combated this unscientific test, it is because he sees that these same criminals, having been impelled to their acts by the conquering force of their disease, ought not to be morally responsible for those acts, even though they were aware of the wrong that they were doing. And if the object of our criminal laws were to punish immorality, to execute or confine criminals only when morally responsible for their crimes, then Dr. Maudsley would have reached the true position, and there would be nothing to change in the law of insanity as it is in New Hampshire.

But is that the object of our criminal laws? Evidently not. Not the punishment of immorality, but the protection of society, is the object of these laws. And what the need of protecting society must bring us to, in our treatment of insane criminals, it is not hard to see. If society disposes of its ordinary criminals by hanging or imprisoning them, it does so because it thereby affords itself a threefold protection from the danger that threatens it: first, it puts the thief or murderer in a situation in which he can no longer prey upon the society around him; secondly, it protects itself from the danger of future thieves or murderers, by holding before their eyes a deterrent example of the painful results which the crime will bring upon the offender; and, thirdly, by taking from the imprisoned criminal the opportunity for crime, and by training him to a better course of life, it protects itself from the repetition of his offense after his release. If, now, we consider these objects of our

penal laws but for a moment, it will be evident that society needs all these three forms of protection quite as much against the insane criminals as against the sane. First, that society needs to be protected from the insane criminal, as he is at the time of his crime, must be self-evident. If, because a man, through jealousy, hatred, or some long-standing and bitter spite, has killed his enemy, we deem him a person so dangerous to society that we condemn him to the gallows or to imprisonment for life; then how much more carefully must we protect ourselves from that criminal who has satisfied no spite in the commission of his murder, who has been driven to his crime by no strange combination of events not likely to occur again, but who has done it through the morbid impulse of a diseased mind, and who may at any time relapse into the same morbid state and the same deadly and destructive action? The fact that his crime is due to his insanity but makes it the more necessary for society to be protected from him. The second object, also, of our penal laws-the deterring of others-is as important for insane criminals as for the sane. All specialists on insanity testify that insane persons are easily influenced by motives of pleasure and pain, and that they frequently refrain from acts through a fear of the personal consequences to themselves. In many cases that fear of severe punishment would be just what was needed to make the insane person exert a little more self-control, and thus to prevent the meditated crime. And if the threat does not suffice to restrain the insane in all cases, that certainly can be no valid argument against its use. "The justification of punishment," says a writer in the "Spectator," "the reason for the threat of punishment, is not to be found in its effect on those whom it does not deter, but on those whom it does." And to allow the rigor of our penal laws to be modified by our pity for the insanity of the criminal would be to remit the punishment in the very cases that require a stronger threat. Finally, if there is needed a long period of confinement,

under an entire change of surroundings, to render possible the moral recovery of the ordinary criminal, still more is this needed for the insane person, whose disease must be, indeed, deep-seated and hard to cure, if it has led him to the commission of a serious crime. And as with the ordinary criminal the law accepts the crime itself as a sufficient proof of the depravity of the prisoner and the need of cure, so with the insane criminal no further evidences should be required of continuing insanity than the crime itself affords. The crime itself should be enough to show that many years must elapse before the insane criminal can safely be permitted to go at large. Diseases so serious are not to be summarily cured; and the frequent repetition of the disease in lunatics who have been discharged from asylums as cured shows with what difficulty a continuation of the disease is detected. Take the records of the insane asylums of this country, and it will appear that nearly fifty per cent. of the patients discharged as cured have subsequently relapsed into insanity. Take the records of the criminal insane asylums of England, and it will appear that a very large per cent. of those there discharged have subsequently committed other crimes similar to those for which they were first apprehended. And in the case of a person whose insanity has brought him to the commission of murder, it may be fairly doubted whether the disease can ever be so far eradicated as to make him no longer dangerous.

It is clear, then, that if we are to protect society adequately, we must use the same penalties for insane criminals as for the sane. And this protection of society must be the true object of our penal laws-not the punishment of immorality. In fact, with immorality the criminal law should have nothing to do. That one man should not be subject, as a child is to its father, to the moral supervision and correction of another' man, or of society as a whole, it ought not, at this day, to require argument to prove. The principles of individual liberty contain no more fundamental rule than this. What

I feel or what I think, what my motives. are or what my character, should no more be matters on which I may be called to account by the laws of society than what I eat or what I drink. Society has long since given up calling men to account for their religion, and has largely given up scrutinizing their morality; and to attempt to control the latter is as wrong and as meddlesome as would be the attempt to control the former. If a majority vote does not and cannot establish a single standard of religion to which all might be justly asked to give allegiance, no more can that majority vote establish a a single standard of morality. In short, the morality of the individual must be left to the supervision of his own conscience; and the punishment of his wickedness must be left to the retribution of the logical consequence of his acts, or to the vengeance of a God. Society, at least, has nothing to do with it.

While this view of the aim of our criminal laws and of the rights of society towards the individual is daily being more generally adopted by our jurists and social economists, yet so many traces remain to us of the time when our laws were made and enforced with the other aim of controlling the moral character of the individual, that it is easy for us to continue the old error; and all our caution is needed to free us from the tendency to do so. The very terms and phrases of our law are those that are appropriate only to the old system of moral supervision. "Guilt," the first essential of the punishment of an accused criminal, suggests first to our minds the moral badness of the criminal, rather than the legal transgression; while "punishment" (a term that I have just been obliged to use because there is no better one) is appropriate only to the infliction of a retribution, or the taking of vengeance by some supervisor of our moral natures. As Wendell Phillips says, in the "North American Review" of December, 1881: "The word 'punishment,' capital or any other, when used in reference to human government, is a mistaken and misleading term.

Punishment has relation

to guilt." We must discard, then, the ideas suggested by these common terms; and in considering our laws for the treat ment of criminals, we must lay aside all thoughts of vengeance or of punishing immorality, and must limit ourselves strictly to the protection of society. "I sentence you to ten years imprisonment," said the judge, when sentencing a convicted horse-thief: "not because you have stolen a horse, but in order that horses may not be stolen." This must be our motive; this alone will not be an intermeddling and an infringement of the principles of individual liberty.

Moreover, if we do not give up all thought of scrutinizing the moral responsibility of our criminals, I do not know what limit there will be to our investigations, or what definiteness to our laws. While science points more clearly every day to the great influence of heredity and of early surroundings in moulding the whole nature of man's intelligence and will, how could we justly appreciate the moral responsibility of a criminal for his act until we had obtained an accurate record of those early surroundings and of those inherited tendencies? And if we refuse to look into these matters in the case of ordinary criminals, why should we not equally refuse to do so with insane criminals? These matters affect only the moral responsibility of the accused, not the protection of society. If we are to say that an insane criminal shall not be incarcerated or punished for his crime because it was the result of his mental disease -because he knew not right from wrong, or because, if he did know right from wrong, he had no longer the will power to choose between them-then what are we to say when the sentence is to be pronounced upon the thief who was born in the slums of New York or London-whose father was a thief, and whose mother a prostitutewhose early life was passed among thieves and prostitutes, and who not only was without the moral training of a more fortunate child, but who was early trained to robbery and theft, as other children are taught at school, or are trained to hon

est trades? insane criminal because we do not find him morally responsible, and yet condemn this man whose parentage and whole surroundings have made him what he is, whose ability exists only for thieving; and who, we cannot say, has had his perception of the immorality of his crime blunted; but who has never had any perception of immorality to be blunted? It is evident that we must look at these two men in the same light: if we call the first case a disease, then we must call the second by the same name: and what else than a disease is this moral and mental distortion of the thief? We must deal with these men in the same way. If we execute or imprison the one, (and no one would release the thief on account of the forces that have made him a thief) so must we execute or imprison the other. There is no anger, no spite, no vengeance, in our feeling in either case: rather a pity for the deformity we see before us, and the sad conviction that the criminal must be sacrificed for the safety of society.

Are we to send free the

We must conclude, then, that while the courts of New Hampshire have corrected a false test of the existence of insanity and a false procedure on the part of the judge, they have left uncorrected the real error of our laws of insanity; and that that real error lies in the substantive law itself, which allows insanity to be a bar to the infliction of a penalty. We must conclude that society should not only cease to consider whether the criminal knew the right or the wrong of what he was doing, but should cease to consider his insanity itself, or any question of his moral responsibility; that we should look only to the adequate protection of society in its rights of life and property; and that, when these are invaded, all invaders must be dealt with alike, whether they acted under the influence of a moral disease due to insanity, or of a moral disease due to parentage and vicious surroundings; that there should be the same penalties for all, the same threats of punishment to deter others from such acts. In short, the question of insanity should have