THE LAW OF INSANITY.

WHEN Lord Hale laid down his famous rule of law that some kinds of insanity furnish no excuse for crime, he unquestionably reflected the most advanced opinions on the subject, both of lawyers and physicians. For more than one hundred years its correctness passed unchallenged; and no person on trial for a criminal act was acquitted on the ground of insanity, whose disease had not entirely deprived him of reason and reduced him to the condition of an idiot or a wild beast. Science could enter no protest against the rule, for the materials necessary to give such a protest any support were not in existence. Medical men may sometimes have had a vague apprehension that all was not right, when a convict proclaimed the grossest delusions from the gibbet; but they were never properly shocked by the barbarity of such scenes. Coincident with the signal reforms in the treatment of the insane and the increased attention to the study of insanity, which marked the close of the last century, the suspicion began to be entertained by lawyers that the rule excluded from its protection many classes of the insane that were justly entitled to it. But they never, to this day, have decided that insanity, in whatever shape it may appear, is necessarily an excuse for crime. The advanced step which they took was to regard certain forms of what is now called partial insanity, as having this legal effect; but precisely which they were, was a point not so easily settled. The exact question was, what mark, quality, or attribute of insanity should make it an adequate excuse for crime, and this led to definitions of insanity and tests of responsibility. At one time, the question seemed to be satisfactorily answered by saying that it was delusion, without which the patient could not be considered so insane as to be irresponsible for any criminal act. It was not long, however, before it began to be suspected that this was giving too large a sweep to the excuse, and then its application was restricted by various limitations. From time to time other tests were offered, which, though intended to meet a present exigency, were. fondly believed to cover every possible requirement. One was

that if the patient retained his knowledge of right and wrong, he continued to be accountable for his acts. Another was that if he knew the act to be contrary to the laws of God and man, he could not avail himself of the plea of insanity. Again, it was said that if he showed contrivance and forethought in regard to the criminal act, he was sufficiently sane to be accountable therefor. It would be a waste of time to mention all the rules of law on this subject, which the ingenuity of courts has devised, and which, one after another, have been found too narrow for general application. But they will continue to be offered, and new ones no better to be made, so long as false theories of insanity prevail in the community, and the indubitable facts of science are treated as matters of speculation and fancy; and no improvement will be made, so long as it is believed in the high places of justice that the effect of insanity on the thoughts and feelings, the appetites and impulses, may be thoroughly discerned by a hasty examination and the slightest acquaintance with the mental phenomena. We allude to these things now for the purpose of calling attention to some recent decisions which, while they illustrate the same diversity of views, also indicate a most gratifying progress of ideas.

In a volume of select cases, just published by Judge Edmonds, whose name recalls a shining example of all the qualities most prized in the judicial character, is the report of a case, The People v. Kleim, in which he found himself obliged to modify the rule of law ordinarily received, on the subject of insanity in connection with crime. The prisoner was charged with the wilful murder of a woman, by setting fire to the dwelling in which she resided, and forcibly detaining her therein; also inflicting on her wounds by a sharp instrument. He was acquitted on the ground of insanity, and was sent to the State hospital, at Utica, where he still remains demented.

The following passages from Judge Edmonds's charge to the jury present the rule of law as he understands it:

"To establish a defence 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 the 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. . . . If some controlling disease was in truth the acting power within him, which he could not resist, or if he had not sufficient use of his reason to control the passions which

prompted the act complained of, he is not responsible. . . . In order then to constitute a crime, a man must have memory and intelligence to know that the act he is about to commit is wrong; to remember and understand that if he commit the act he will be subject to punishment; and reason and will to enable him to compare and choose between the supposed advantage or gratification to be obtained by the criminal act, and the immunity from punishment which he will secure by abstaining from it. If, on the other hand, he have not intelligence and capacity enough to have a criminal intent and purpose, and if his moral or intellectual powers are so deficient that he has not sufficient will, conscience, or controlling mental power; or if, through the overwhelming violence of mental disease, his intellectual power is for the time obliterated, he is not a responsible moral agent, and is not punishable for criminal acts."

In a note to this case, the judge relates one of the incidents which led him to distrust the correctness of the rule as generally stated. It was reductio ad absurdum well calculated to leave an impression on a thoughtful mind:

"Shortly before my elevation to the bench, and when I was one of the inspectors of the State prison at Sing Sing, I was present at a court in Westchester County, where a man was tried for a rape. After the jury had retired, I expressed to the presiding judge my opinion that the man was insane. I had never seen nor heard of him before; but I judged from the testimony in the case, which, as no one knew who the man was, was necessarily confined to the acts connected with the offence. The man was convicted and sent to the State prison. Within a month, the attention of the board of inspectors was called to his case; and he was reported to us by our physician, our chaplain, and principal keeper, as unquestionably insane. Before treating him as such, however, we caused minute inquiries to be made, and we found that he had been confined in the county lunatic asylum on Blackwell's Island for several years, and was regarded as a confirmed lunatic; that that asylum being inconveniently crowded, its officers had turned loose upon the community some fifteen or twenty of its most harmless inmates, and this man among them; that he had wandered off from the city into the country, and within forty-eight hours of his discharge from that institution had committed this offence. We committed him to the State asylum, without any hope that he would ever recover. As I knew that the judge who tried him was one of the soundest jurists in the State, I at once inquired what was the rule of law that would warrant this conviction. I found it was this, as charged by that judge: That if he had capacity and reason enough to enable him to distinguish between right and wrong, as to the particular act, he was not exempt from punishment for crime.' Now,

sane.

this man did know that the act he was doing was wrong; he talked about it as rationally as I could; yet he was unquestionably and incurably inHe was far too unsound to have it safe for him to go at large; so that no great harm was done in that particular case, for the result was merely to return him to confinement again.. But, I asked myself, suppose the punishment had been death, what was there in the law to prevent the horrible tragedy - the judicial murder of hanging an insane man?"

So, too, Kleim," says Judge Edmonds, "knew the act was wrong; yet he was insane. The act of piling of shavings, fastening the woman in her hut, and forcing her back into the flames, was not an involuntary act of the body without the concurrence of a mind directing it;' yet he was inHe knew the act was contrary to the plain dictates of justice and right, injurious to others, and a violation of the dictates of duty;' yet he was insane. He knew he was acting contrary to law;' yet he was insane. He knew the act was 'one he ought not to do;' yet he was insane."1

sane.

It is not often that the judicial test of responsibility is confronted by such an inexorable contradiction as it was in the case of the Blackwell's Island lunatic; but, unquestionably, most of such tests have sprung from the convictions of the judge that the prisoner before him was really entitled to the excuse of insanity, though debarred from it by the existing rules. Thus, from time to time, these tests have been multiplied, in order to meet particular exigencies, though it is not always clear whether the new test is meant to be only supplementary to the old one, or to be regarded as of universal application, and rendering all others unnecessary. Thus, in the Rogers case, we are left in doubt whether the half-dozen incidents of insanity mentioned by Chief Justice Shaw must all concur to make a person responsible for criminal acts, or that only one of them, which we may choose to suit the exigencies of the case, is sufficient for the purpose. If he meant the former, we can only say that they are seldom found united in any particular case, and that one or more may be wanting without diminishing the force of the disease. If he meant the latter, we need only say that no one of them is invariably present even in the gravest forms of insanity, and that some of them may be displayed by real criminals, for many a man who avenges an outrage on his honor or his peace persuades himself that he is doing a right and proper act.

Judge Edmonds found the requisite test for shielding Kleim

1 The expressions here quoted are taken from the charge of Chief Justice Shaw in Comm. v. Rogers, 7 Met. 500, and have been generally regarded in this country as the proper statement of the rule of law on this subject.

from the consequences of his act, in "some controlling disease," which was "the acting power within him which he could not resist." He mentions it in connection with other tests, but leaves us in doubt whether he meant it to be considered merely as supplementary to them, or as having a general application. If he meant the latter, it is to be regretted that he did not positively declare the insufficiency of all the rest, and set up this as the only sure and essential thing. A new truth may be deprived of half its power, by being mixed up with old formulas and venerable fallacies. It was reserved for a later day, as we shall presently see, to give to this principle all the prominence and distinctness which its great importance deserved.

A year ago or less, a case was tried-Comm. v. Haskell — in one of the common pleas courts of Pennsylvania, where a new test was propounded to the jury, which, taking the language in its proper metaphysical sense, may be considered as covering every possible form of insanity. The court, Judge Brewster, after mentioning the various tests and definitions of insanity found in medical books and judicial decisions, declared, according to a full and literal report of his charge in the Press newspaper, "that the true test lies in the word, power. Has the defendant in a criminal case the power to distinguish right from wrong, and the power to adhere to the right and to avoid the wrong? Has the defendant, in addition to the capacities mentioned, the power to govern his mind, his body, and his estate?"

If we are to have any legal test of insanity, we could not wish for one evincing a more thorough and intelligent appreciation of the facts, or better calculated to promote the ends of justice. In recognizing the two fundamental elements of responsibility, - the power to distinguish right from wrong, and the power to pursue the right, and avoid the wrong,—it acknowledges, what no rule of law ever did before, the existence of moral as well as intellectual powers in the constitution of the mind, and implies that they are equally subject to the disturbance of disease. In the normal mind, both are coincident and co-operative in making the individual responsible for his acts. If either is impaired by the intrusion of disease, it matters not which, responsibility is annulled. It is a curious fact, that in the definitions of insanity, in the tests of responsibility, in the measures of capacity, promulgated by lawyers, the moral powers, meaning thereby the sentiments, affections,