human judge has either the capacity or the information necessary to form a true moral judgment. If expiation of offences were the object of punishment, the exact shade of insanity would require to be known and taken into account along with heredity, training, and surroundings. The strength of individual character would require to be gauged, the force of the resistance to evil estimated, opportunities known and motives laid bare. These things are known only to Omniscience, and are therefore beyond the province of human law. Legal punishment cannot be justified as an act of moral administration or as a question of retributive justice. Society has no right to inflict pain by way of punishment except in so far as it conduces to the general wellbeing. "Punishment," says the elder Mill," should be proportioned, not to the greatness of the crime, that is, to the quantity of suffering it produces, but solely to the difficulty of creating an adequate motive to. abstain from it; if a fine of one shilling created a sufficient motive to abstain from the crime of murder, the fine of a shilling would be all the punishment which ought to exist." * Archbishop Whately expresses the same idea. "We punish a malicious offender," he says, "not on account of his being morally more culpable than one who offends accidentally, but because wilful acts are the only ones that can be prevented by the fear of punishment. We punish a criminal on the same principle that we extinguish a conflagration—to prevent it spreading; or destroy a mad dog, that its bite may not communicate the infection."† The criminal should be punished, to use the words of the old Scottish indictment, "that others may be deterred from committing the like crimes in all time coming."

It may be asked whether these principles apply to the punishment of the insane. Our author states incidentally that "punishment cannot deter other insane persons from

History of British India, bk. ii. ch. 4.

+ Thoughts on Secondary Punishments, p. 26.

crime" (p. 122); but the statement is strangely at variance with numerous instances to the contrary, cited by himself in other parts of his work. It is also entirely opposed to everyday experience. "The threat of punishment," says Lord Bramwell," does not always deter mad people, but neither does it always deter men in their perfect senses. It is certainly not true that it never deters insane persons. It does not deter as often as it ought, because madmen are cunning enough to know that, from the way the law is administered, they can commit crime with less chance of punishment than sane persons can. But to say that they are uninfluenced by the threat of punishment is to say what is contrary to every one's experience and knowledge. How are mad people managed in asylums? Surely by the hope of some good or the fear of some harm according to their conduct." *

But it may be further asked why, under this theory, does the law recognize a particular degree of insanity as sufficient to free from responsibility for criminal acts? The answer is, that at certain stages and in certain kinds of insanity the punishment of the offender would be of no value as a deterrent to himself or others. An old reviewer puts it thus: "If the mental incapacity of the person offending be so great that punishment would have no beneficial effect by way of example on others in the same condition, then punishment would be suffering uselessly inflicted, and ought not to be imposed. But if the person doing the wrong, although he may not be perfectly sane, be yet in such a state as to be influenced in his conduct by punishment, and if punishment inflicted on him would serve to deter others in the same state of mind from the commission of crime, then punishment ought to be inflicted."† The precise point at which the infliction of punishment will serve the community is as difficult to define as insanity itself, yet, in the words of an Nineteenth Century, xviii. 894.

t Westminster Review, xxxix. 461.

American judge, quoted by our author, "the court and jury must determine the question approximately, as best they can, in each individual case" (p. 152).

Our author devotes a chapter to definitions of insanity, of which he quotes upwards of fifty, chiefly of American origin. Some of these he criticizes by aid of quotations from Ray and other writers, but the criticism is of little value, for while the definitions are necessarily legal and refer to responsibility, the tests applied are medical, and relate to mental aberration in the abstract. The author's unconnected and inconsequential style also detracts from the argument. It cannot be said that his views are much advanced by analogies drawn from the mathematical definition of a point, or Herbert Spencer's definition of life. We fail to gather from this chapter whether in our author's opinion a definition of insanity, in either of its senses, is possible; but as he elsewhere advises the medical man to "avoid the bogs of definitions" (p. 111), it may be presumed that he is prepared to discard all attempts to reduce the line of division to a form of words. According to Dr. Clevenger, the palladium of enlightened psychiatry is the judgment of Ladd, J., in the American case of State v. Jones, 9 Am. Rep. 242, a report of which occupies no less than twenty-seven pages of the work now under review. There is much in the judicial opinion referred to with which we cannot sympathize, but we agree that no test or criterion can be safely given by a judge to a jury. To frame any rule or test would involve an examination of an immense mass of evidence, a weighing of facts against facts, a balancing of theories and opinions, and finally the deduction of "a result which might itself turn out to be nothing more than a theory of opinion, after all. At any rate, it would be a deduction of fact" (p. 155). The case as to definitions is well stated by Professor Sir William T. Gairdner, of Glasgow, who says, “ The line between sanity and insanity cannot be, judging from historical evidence, very abruptly or

definitely drawn. It is, therefore, not an affair of definitions or even of doctrines as to what insanity essentially is; but a question of practical adjustment, so to speak, between society and the individual; between the average sane mass (or mob, if you like) of commonplace persons or 'Philistines' on the one hand, who control, and at the same time constitute, the social machinery, and the eccentric, abnormally good or bad, or otherwise peculiarly endowed individualities on the other hand, dwelling within the protection of law, and therefore responsible to public opinion." * The legal application of these views is embodied in the charge which Lord Justice-Clerk Moncreiff gave to a Scottish jury in 1874. This," he said, "is a question entirely for you" (the jury). "It is not a question of medical science, neither is it one of legal definition, although both may materially assist you. It is a question for your common and practical sense." †

The burden of our author's chapter on "diagnosis" is the difficulty of determining those doubtful cases which trouble judges, juries, lawyers, and physicians. He not unnaturally extols his own profession. "Other things being equal," he says, "the alienist is better able to distinguish insanity than others who are not trained to observe it." We are not disposed to object to this claim, but our author, both here and elsewhere, speaks too contemptuously of "the people," by which we presume he means the entire community outside of the medical profession, or perhaps outside of that small section of the profession specially trained in an asylum for the insane. It must not be forgotten that the doubt refers to a "borderland," which is absolutely incapable of precise delimitation, and that alienists are as hopelessly at variance among themselves as any number of average laymen. Some eminent medical men, for example, declare with much show of reason that all criminals are insane; others, such as our author, are prepared to absolve the most notorious criminals, * Modern Views as to Insanity, p. 18. + S. Coup. 17.

yet show no tenderness to those, reared in hot-beds of crime, who were never capable of grasping the idea of a higher life. It is obvious that no merely physical test is available. The changes of brain structure, if such there be, are hidden from human eye, and even a post-mortem examination may fail to reveal them. In most cases the only practical test is the expression of mental condition in the language and conduct of the individual, and such criteria are as open to the common observer as to the physician. It may even be said that if insanity is a departure from the average normal condition of man, the keen student of human nature, not in its diseased but in its normal state, has a claim to be heard, equal if not superior to that of specialists whose observations are entirely among the abnormal. Again, there are elements in forming a judgment as to mental aberration, which are open to every educated man. The test must bear reference to the age in which the person lives and to the country in which he is born. Thus, a believer in witchcraft would not have been insane in the seventeenth century, but might be treated as such at the close of the nineteenth. A follower of the Mahdi, who ruthlessly killed every European over whom he had power and at last joyfully threw away his own life, would not be insane in Egypt, but similar conduct on the part of an Englishman in England would indicate acute mania.

Two long chapters of the work under review are occupied with theories and details of adjudicated cases regarding legal responsibility for crime. They contain much useful matter in an undigested form, but their value is impaired by puerile illustrations and whole pages of dissertation on such foreign subjects as the law of patents, the rule in Shelley's case, and the use of a seal in the authentication of legal documents. It is to our author's credit that among his numerous quotations he inserts many which tell against his own general views. Thus the following is translated from the valuable work of the German alienist, Griesinger: "When