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that neither delusion nor knowledge of right and wrong, nor design or cunning in planning and executing the killing, and escaping or avoiding detection, nor ability to recognize acquaintances, or* to labor, or transact business, or manage affairs, is, as a matter of law, a test of mental disease ; but that all symptoms and all tests of mental disease are purely matters of fact to be determined by the jury. The court also instructed the jury that whether there is such a mental disease as Dipsomania, and whether defendant had that disease, and whether the killing of Brown was the product of that disease, were questions of fact for the jury."

Out of regard to the personal even more than the official rank of Judge Perley, in American jurisprudence, and to the distinct and forcible manner in which his opinion was declared on so grave an occasion, no one, we apprehend, will read this charge without being led, at least, to consider very thoughtfully the grounds on which the law of insanity rests. Such reflections may possibly end in the conviction that much which passes under this name has sprung from a temporary departure from the accepted principles of the law, for the purpose of meeting a special exigency, and that it is incumbent on the intelligent jurist to demand a return to the simplicity of the ancient ways.

It is admitted on all hands that the presence of insanity, like that of any other disease, is a matter of fact to be determined by the jury; and yet the particular grade of the disease and its precise effect on the mental operations, are regarded as questions of law on which the jury is bound to receive instructions from the court. We fail to see any real ground for this distinction. The latter is just as clearly a matter of fact to be learned by observation, as the effect of gout or scurvy on the blood, or of a gun-shot wound, or a surgical operation on the vital forces. The court says virtually to the jury, “ If you find the prisoner had a knowledge of right and wrong, knew what he was about, &c., you will have fulfilled your duty, and will bring in a verdict of guilty. Whether the disease had any other effect on the mind, whether, for instance, it impelled him to do what he did by a force stronger than that of the clearest perceptions and the liveliest conscience, are questions that belong exclusively to the court.” Could we entirely divest ourselves of ancient biases, we could hardly fail to see that such a division of duty is clearly at variance with those principles which have always been re

garded as among the glories of the common law. If it be competent to ask the expert whether the prisoner retained his perceptions of right and wrong, can it be contended that it is not equally competent to ask whether the disease may not have so perverted the action of his moral faculties, that he was irresistibly inclined to evil rather than good, or had lost the power of pursuing the one and avoiding the other? Both these questions are of a scientific nature; and if the expert is allowed to testify respecting either of them, then certainly they come exclusively within the province of the jury.

We talk about the law of insanity. Properly speaking, there can be no law on this subject other than the facts themselves. Courts cannot rightfully say that insanity under certain forms destroys no element of responsibility. It may, or it may not; it is simply a question of fact. It is claimed that the law has followed in the footsteps of science, — though perhaps at a conservative distance, — fully recognizing its improvements, and subordinating its authority to them. If this were strictly true, it would simply mean that it has abandoned one medical theory after another, to take up that bearing the gloss of novelty and recommended by some distinguished name. In thus stamping its impress on this or that medical doctrine, the law may, under the circumstances, have done a very salutary thing ; but none the less did it go beyond its rightful province.

This view of the case is strikingly illustrated by the history of delusion considered with reference to its legal consequences. It was first claimed to be that quality of insanity which makes it an excuse for crime by Erskine, in his famous defence of Hadfield, and as the prisoner was obviously very crazy, by whatever name his disease might be called, no objection was made to it. Years went by before it obtained any currency on the bench, and that result it owed, probably, to the use made of it by an English ecclesiastical court. The mode of procedure under the civil law, whereby the court acts without a jury, requires that the court shall determine questions of fact as well as of law, as it is stated in the extract above; and in the exercise of that function, delusion was adopted in Dew v. Clark by an ecclesiastical court consisting of one judge, as that test of insanity which best met the exigencies of the case. It was confessedly a medical opinion, and without the slightest pretence that it had the sanction of law. Subsequently, on the

occasion of the acquittal of McNaughton for killing Mr. Drummond, the law judges, in answer to questions propounded by the House of Lords, seemed to admit that delusion might be a proper ground of acquittal under certain circumstances, while in another portion of their reply, they insisted unequivocally upon the knowledge of right and wrong as the only true test. They said, among other things, that delusion is an excuse for criminal acts only so far as the person would have been excused in law had the idea under which he acted been real instead of delusive. Here, too, the whole matter of the effects of delusion on the conduct, in its stronger and grosser as well as its slighter forms, is one of fact; and if, on the strength of medical authority, the judges were constrained to say that delusion might so pervert the judgment as to render the person irresponsible for some things he might do under its influence, they were equally bound by the same authority in respect to its particular incidents and qualities. In view, then, of this fundamental, indisputable rule, that the court determines the law, and the jury the facts, Judge Perley carried the theory into practice, in that memorable case, with such soundness of judgment and such exact fitness of application, that we believe his name will be associated with the final settlement of this important branch of the law as long as our legal system shall endure.

However convenient, even necessary, this departure from the rule may have been, it is no longer in harmony with those modes of procedure which have come to be regarded as the very palladium of our dearest rights. In former times when juries were ignorant, experts unknown, and counsel not allowed to speak for the prisoner in relation to any matter of fact, courts were obliged, in justice to the latter, to instruct the jury respecting matters of fact, and especially was this so in cases involving questions of insanity. In a criminal trial, the jury had no means of learning how this disease affects the mind, for they had nothing to guide them but such views as the counsel for the crown chose to impart. They naturally looked to the court for direction, and the court, standing in the relation of counsel for the prisoner, gave them such information as it had obtained from the best books and the most eminent physicians of the time. To have told them, merely, that if they found the prisoner insane, and so insane as not to be accountable for his conduct, they must acquit him, would not have helped them to render a proper verdict. They were therefore told that some forms of insanity do, and some do not, excuse the commission of crime. These forms were severally described, and their marks and qualities pointed out, and thus the jury were enabled to put an intelligent, though perhaps an erroneous, construction upon the evidence. But this makes no rule for us, who are accustomed to a very exact division of the respective duties of the judge and jury, and depend for scientific information on the testimony of experts.

This course of the courts, however, once so proper and salutary, leads, in our times, to a practical absurdity. Juries are allowed to hear the statements of experts on matters of science and special knowledge, and from them they are supposed to ascertain the facts which it is necessary for them to know. In questions of flowage, or of patent-rights in a plough or mower, or of injury to limb from a railway accident, no judge would undertake to enlighten the jury on the laws of hydrostatics, or the resolution of forces, or the strength of bones and muscles. And yet in a question of insanity, the judge deems it no departure from the proper line of his duty, to supplement the testimony of the expert with views of his own or some legal authority. The charge of the judge may be, as it not unfrequently is, a running commentary on the indications of mental disease as given by the experts. If the latter, for instance, have declared certain notions which appeared in evidence to be delusions, and, consequently, proof of insanity, the judge may take them up seriatim, and undertake to show that they are not delusions, but only mistakes of the senses or the judgment, and therefore not at all indicative of insanity. This mixture of functions is unwarranted by any correct theory of law, and thus we are forced to this alternative; viz., to conclude that, either the judge is trespassing on the province of the expert, or that the latter is allowed to transcend his calling and discourse to the jury on questions of law.

From all these solecisms and dilemmas we are happily delivered, by adopting the views of Judge Perley. Instead of puzzling jurymen with metaphysical distinctions, about the will, and the passions and the force of motives, he simply tells them that it is for them to say whether the party was laboring under mental disease, and, if so, whether the act in question was the offspring of such disease. Beyond this, he only declares that the law holds no one responsible for any act committed under the influence of mental disease, VOL. IV.

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and that they should render their verdict accordingly. This course is recommended by its simplicity, its directness, its reasonableness, and its conformity to the whole theory and spirit of the law. Still, it is easy to anticipate some of the objections it will provoke. It may be said that questions of insanity are so often mooted in our courts, the interests it involves are often so large, the disease is so protean in its shapes, and the popular conceptions of it so vitiated by error, that it seems highly necessary that something, as fixed and imperative as a rule of law, should be held in reserve to serve as a check upon the conclusions of the jury, who are liable to be led away by medical theories and crotchets. The evil here alleged, if it really exist, will scarcely be reached by the proposed remedy. It is one of the tendencies of the times for juries to magnify their own self-sufficiency, and assume the privilege of following their own notions of right and wrong, without troubling themselves overmuch with the law or the evidence. Whenever prompted by passion or prejudice to act irrespectively of them, some smoothing unction is always found to make the way easy. The judge may take great pains to point out the nice distinctions and grades of mental capacity made by the law; he may mention the various tests whereby the responsibility of the insane is to be tried; he may utter the most emphatic warnings against confounding excited passion, or heated fancy, or mistaken judgment, with proper insanity; he may even show how the grossest delusions can be resolved into mistakes or exaggerations, quite compatible with unimpaired sanity of mind, — he may do all this with the utmost force and clearness, and yet the jury, nevertheless, return a verdict in complete abnegation of it all. They have their own notions of insanity, they have discussed the particular case with their neighbors, they are anxious to do what seems to be about right, according to their peculiar ideas of right and wrong, and thus the general maxims of the court must give way before the exigencies of the case in hand. We cannot believe, therefore, that any thing on this score will be hazarded by consigning the question of insanity entirely to the jury.

The main objection, however, will be found, probably, in a reluctance to allow that insanity of whatever kind or degree may be a sufficient excuse for crime. The idea has always prevailed, and it still prevails, that some forms of insanity do not so impair the mind as to destroy any single element of responsibility. It is

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