ing us into blind and unwilling slaves. If we give up political duty, it is not for lack of public virtue, but from disgust and disappointment. We know that it does not make any difference whether we go to caucuses or not. We know that it makes very little difference whether we go to the polls or not. But remove the artificial obstructions, that the present political machinery, with the abuses it has produced and fostered, has set up-substitute for it a more rational method of voting, which shall establish justice, encourage individuality, and make independence possible, and public duties and the public service will again be seen to be, what they always in fact are, the most honourable work that can be done, and they will not be long without a following. It is not now those public virtues that are lacking; what we need is a fair field for their exercise."

V.

CRIMINAL IRRESPONSIBILITY OF THE

INSANE.

THAT every HAT every murderer is presumably a madman is a comfortable doctrine which men are naturally much inclined to accept. To admit that a horrible crime has been deliberately committed by a human being, is indirectly to reflect on ourselves, especially if the criminal, as a refined and educated person, represents human nature at its best. Our self-complacency receives a shock, and we are easily persuaded to believe in the existence of insanity, which, by disallowing to the criminal the possession of a nature such as ours, relieves us from an inference unflattering to ourselves. Pity and mercy towards a fellow creature do something to strengthen the tendency, and the result is that public opinion, which on a subject like this should be based on the surest ground, is commonly formed without consideration of the necessities of criminal justice, which ought exclusively to govern the ques

tion.

The mind has first of all to be disabused of the idea, which is unfortunately the whole rationale of punishment to many persons, that criminals are punished because they deserve it. The proposition is one of those which, though never expressed, are tacitly recognised in the conclusions arrived at. To express it is to confute it. The criminal law undertakes no such divine office, as any one may discover for himself by running over in his own mind the lists of offences of which the law does and does not take cognizance. Perhaps the offence of

ingratitude is more generally and more justly reprobated by the world than any other. Yet the law has no punishment for it; while it punishes severely the taking of a loaf of brea by a man in the pangs of hunger, an offence which the world would pronounce most venial. The law, therefore, clearly punishes on very different grounds from desert. It has undertaken the duty of preserving public order, and it punishes such acts as endanger order to prevent their occurring again, or, as it is commonly expressed, for the sake of the deterrent effect of the punishment.

To ensure that the deterrent effect of punishment shall be complete, the law has to provide as nearly as possible that punishment shall follow the commission of crime with certainty. It necessarily does harm to the cause of order that a crime should be unpunished. In the Eltham case, for example, it was clear that a murder had been committed, but the fact has not been brought home to any one. The public sense of security is therefore diminished, and crime is encouraged by the evident uncertainty of punishment. But take the common case in which it is quite clear who did the deed, but the defence of insanity is relied on to exempt the perpetrator from punishment for it. The deed done has outwardly all the appearance of a criminal act committed by a person in his senses. The fact of the crime has made a certain impression on the public mind, and it is for the criminal law to see that the effect of that impression is corrected. If the perpetrator is punished, society feels no less secure than before. But if no retribution follows the act, it goes out to the world that a man may do these things without being punished for it. If the punishment of the criminal is not the corrective employed, it is for the insane man or his friends to negative the impression produced by his act, by showing in a way satisfactory to the public that he is insane. When the cause of order has been injured by the commission of what is to all appearance an atrocious crime, and the doer of the act has been discovered, the injury must be repaired either by punishing the criminal, or by showing that he is outside the pale of ordinary responsible persons.

Nine people out of ten probably justify the exemption of the insane on the ground that they do not deserve punishment. The ground on which the criminal law puts their exemption from punishment is, that the execution of it does not exercise a deterrent effect. Take away the deterrent effect of punishment, and it becomes simply vengeance. The punishment of a madman does not affect the insane, because they are incapable of being influenced by it; nor the sane, because they have no sympathy with him. The power of deterrent effect is in fact proportioned to the strength of the

sympathy which the person to be affected feels for the person punished. The punishment of a man like Mr. Watson affects very little those classes commonly represented in the criminal dock. It affects men of his own stamp, and points the moral that learning and refinement do not justify a man in relaxing his guard over the violent passions, made perhaps more difficult to control by habits of seclusion. On the other hand, to hang a fellow who, reeling out of a public-house, stabs a policeman in a drunken fury, has very little effect on the man who has his club and keeps his brougham. The sympathy in question may be defined as the expectation of the same circumstances concurring in the case of the person to be affected by the example. There is no such sympathy at all, when the concurrence of the circumstances cannot possibly be contemplated. To execute a madman for the sake of example to the sane would be as useless, and therefore as cruel, as to hang a dog who has killed a sheep as a warning to sheep-stealers. To execute him to deter the insane would be as inhuman as the exhibition of the dead bodies of vermin on a barn-door is ridiculous.

On this ground the plea of insanity is admitted, with the condition superadded that the fact be satisfactorily proved, as otherwise the absence of punishment for an apparent crime. would be dangerous to the public peace. The test of insanity which English judges are in the habit of submitting to the jury is, whether the accused knew the act he was doing was wrong. This is a test which every one can appreciate, and to acquit a man who did not know right from wrong cannot rob the law of any of its terrors. But some persons believe the test to be insufficient, as it takes no account of the state of mind in which the ideas of right and wrong are undisturbed, but the will is unable to control the actions. If such a mental state could be satisfactorily proved to exist in an accused person, there is no doubt that he ought to be exempt from punishment. Many eminent doctors assert that it does exist, and blame the law for not thinking so too. But it does not follow that, because the law retains the old test, it disbelieves the existence of such a mental derangement. It is enough for the law to disregard it on the ground that it cannot be satisfactorily proved.

A general inability to control the actions by the will might, if it ever exists, be easily proved. But the state of mind which it is proposed to include in the legal definition of insanity is an inability to refrain from doing a particular act, and that act the crime which is the subject of the accusation. The only available evidence is, therefore, the opinion of a doctor, invariably contradicted by the opinion of another doctor, and the fact of the crime itself. A man is charged

with poisoning, and his defence is that he has a propensity to poison over which he has no control; or he is indicted for stabbing his father, and he is acquitted on the ground that he had an uncontrollable impulse to stab his father, although he knew it was wrong. The plea irresistibly reminds us of the warning Artemus Ward gave to his next neighbour:-"Young man, look out; I have not the slightest control over my elbows." If such a ground of exemption were admitted, what criminal might not hope to escape punishment? How could the public confidence in the administration of justice be maintained, when a defence is admitted which no one understands, and which has the peculiar advantage of requiring no evidence to support it? It is of the essence of the plea of insanity that the ground of exemption should be generally recognised, and capable of satisfactory proof, and it is out of the question for the law to admit as an answer to a criminal prosecution a state of mind which has exactly the opposite qualities.

The question of insanity is, of course, partly a medical question; but when it means criminal irresponsibility, the doctors are the very worst tribunal to decide it. When a doctor says that a person is mad, he means that the patient would be the better for treatment as an insane person. Even if the specific question of responsibility for an act is put, the answer probably depends on exactly the same considerations. The doctor is accustomed to look on the subject submitted to him as a patient, and it is impossible to alter in a moment the habit of a lifetime. Yet the idea that the doctor is most likely to be right is gaining ground dangerously. When a criminal has been sentenced to death, there is now practically a right of appeal to two doctors on the question of insanity. Under 27 & 28 Vict. c. 54 his friends have only to make it appear to a Secretary of State that there is good reason to believe that the convict is insane, and the Secretary has no option but to appoint two doctors, and if they certify that the convict is insane, to send him to Broadmoor. The Secretary of State would not, we presume, be justified in determining that there is good reason to believe that the convict is mad, when the defence has been set up at the trial, and the jury distinctly negative insanity by their verdict. But the accused has only to say nothing about it till he is convicted, and appeal on that point to the Home Secretary and the doctors, if he thinks they are likely to deal more mercifully with him. We do not know whether Mr. Bruce acted under the powers of the statute in the case of Christiana Edmunds, but, at all events, Sir William Gull and Dr. Orchard were allowed to reverse the verdict of the jury. Whether the doctors were right, and the jurymen wrong in that case, it is unimportant to inquire, because the probabilities are that they determined

two entirely distinct questions. But it is of the utmost importance to observe that not only does the new tribunal displace the old-fashioned trial of criminal issues in open court, but it takes away from the jury the jurisdiction over an issue which, according to the view the English law takes of it, they are peculiarly fitted to deal with.

But is this view, that the fact of insanity is no exemption unless satisfactorily proved, consistent with the leniency which the law of England professes to use towards an accused man? Has it not always been an axiom with us that it is better that ten guilty men should escape than that one innocent man should suffer? The axiom would never have been accepted merely out of pity for an innocent man's sufferings, unless the balance of advantages were in its favour. The ground of its acceptance is that if an innocent man is hung, and the real criminal is afterwards discovered, the sense of insecurity in the administration of justice felt by all classes would be much more disadvantageous to society than the encouragement given to crime by the escape of the ten guilty men. But this reasoning does not apply when the question of insanity is involved, and not the question of innocence. Suppose a madman commits a murder, but his plea of insanity is not accepted, and he is hung for the crime, the general belief will be that he is a sane man, and therefore his execution, however unjust to himself, is as useful to the cause of order as the execution of a sane man. The question of insanity can be once for all decided at the trial, and there is no likelihood of anything occurring after the execution of the sentence to prove to demonstration that the convict was mad. When a man has been executed for a crime, and his innocence is afterwards clearly established, the life which has been taken is worse than wasted. But when an insane man, who has committed a murder, and whom the world believes to be sane, is either from the question of insanity not being raised, or being wrongly determined at the trial, convicted and executed, his life may well be considered as sacrificed to the general advantage.

VI. ON A SYSTEMATIC REVISION OF THE

THERE

STATUTE BOOK.

are few subjects of greater interest to the student of our Constitutional History than the growth of the Statute Book. The early struggles of the Norman barons for freedom; the establishment of a Parliament, at once inde