fairly, and to bring to the discussion of the few real questions in debate men possessed of some knowledge of American history and law; men who have read, or are willing before they speak to read, the recognized doctrines of the Catholic Church, and not build up a colossus of prejudice and misinformation. For, from the specimen afforded, we must decline to consider Mr. Froude as an historian, at least where American topics are concerned, and we submit the question, with all deference, to the various historical societies from Maine to California, convinced that they will decide as we have.

INSANITY AS A PLEA FOR CRIMINAL ACTS; INSANITY AS EMOTIONAL OR AFFECTIVE; AND WHETHER INSANITY CAN BE OF THE WILL ALONE.1

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ENTAL insanity is an obscure and difficult subject, and yet the discussion of it, especially as related to crimes against the civil law, has passed from the schools of science and philosophy to popular literature, to the magazine-even to the daily newspaper. This has been brought about mainly by the fact that members of the medical profession and the "scientists," in their writings addressed to the general public, and also "experts," in their testimony before the criminal courts, now propose novel and strange theories for explaining diseased mental action, maintaining that “emotional insanity is an ordinary physical cause of moral depravity and crime of unusual atrocity." Some of these scientists go so far as to hold that their hypotheses for explaining disease of the mind and the physical causes of crime should be authoritatively recognized in the criminal code; and with such success have they done this that some courts in New Hampshire have actually ruled that insanity is a question of fact, not of law, and

The following authors, among others, were consulted in the preparation of this article: Dr. Ray, on Medical Jurisprudence; J. H. Balfour Browne, Esq., on Medical Jurisprudence; Maudsley's works, Body and Mind, Responsibility in Mental Disease, Physiology and Pathology of the Mind, his writings being of standard authority with the medical profession on the subject herein treated, were consulted for the theories generally defended by his school of thought. While Dr. Ray's treatise on Medical Jurisprudence is very elaborate, that of Browne is far more correct in its philosophical principles, and under this respect it is a safer guide, both for the student and the general reader, who are desirous of forming sound notions on the subjects treated by them.

that its definition, and the tests of its presence or absence, are matter for the jury with the experts to decide, without any instruction from the court on responsibility of acts, on the definition, and the legal tests of insane deeds. It is for the legal profession to determine at what value they will estimate the verdict of a petit jury made up without instruction from the court, and entirely on the answers of experts, some of whom maintain that all moral depravity is insanity; that one may be insane at the instant of committing a criminal act, and perfectly sane at the instant next before the act, and next after it, and at all the other instants of his life; that one may be perfectly sane as to his intellect, and yet plan and execute a criminal act by compulsion of an insane will. It remains to be seen whether this strange precedent in New Hampshire will be followed elsewhere, and thus take from the office of judge what was heretofore looked on as one of its most important functions. Is not murder that is charged also a question of fact, and yet must the judge not instruct the jury as to what constitutes the crime of murder?

The questions raised in respect to insanity are living and practical, therefore, and their discussion cannot rightly be left exclusively to those "scientists" who claim to speak for the medical profession, and reduce crime to a purely physiological basis. The problems of insane mental action pertain to civil law, to the medical science, and to psychology or the philosophy of mind. The matter of those questions concerning insane mental action has its ethical and civil aspects which relate it to public authority; and since insane mental action supposes organic lesion in the brain, under this aspect the subject legitimately pertains to the science of medicine; and, finally, it is related to psychology, or the philosophy of mind, whose office it is to discriminate between intellectual or spiritual action and organic action. Before expressing any opinions or drawing any conclusions as to the share which mental disease may have in causing criminal acts, it will be very advantageous to consider, 1st. What rules and axioms are laid down by jurists for the guidance of civil courts; 2d. What the medical science has succeeded in proving; and lastly, what principles the philosophy of mind must claim as demonstrated which bear upon the subject. As regards the sciences of law and medicine the writer cannot pretend to give more than a general statement of results; but such statement will, at the same time, suffice for that view of the subject which is here to be taken. There are questions concerning diseased mental action which are interesting to the Christian, and which he must be prepared to answer with as much clearness and certainty as are attainable. Nothing more is attempted in this

article than to state those questions, and offer a few suggestions pertaining to their solution.

Insanity is an abnormal state of the soul's superior faculties, produced by disease of the brain, which state of the soul's faculties is manifested by disorderly and unsound or abnormal action, thus showing such person to be non compos mentis. But, it may be asked, what more precisely and specifically is that abnormal action of the mental powers which conclusively proves one to be of insane mind? Are there certain symptoms or tests which, when known with certainty, infallibly determine that some persons are victims of this disease? Is there some sign or characteristic of insane mental action which surely and in all cases distinguishes it from sane action of the mind? Is the insane person who, in consequence of his disease, violates the law ever justly punishable for the transgression?

The works written for the legal profession, and the instructions given by the courts, at different times, treat these questions more ably and dispassionately than do most works composed by members of the medical profession, since the latter class of authors either theorize concerning all mental action from a purely materialistic standpoint, or else they consider only the pathology of the disease as manifested by its various types in lesions of the brain.

Whenever a murder of startling atrocity is perpetrated, and its author is brought to trial, public sympathy is enlisted in the case, either for the culprit or in favor of the victim; and as the populace are swayed rather by feelings than by any juridical view of the deed, one while the culprit is summarily lynched, another while his crime is condoned under the assumed plea of "emotional insanity." As the courts do not presume insanity a priori, merely because the crime is enormous and was committed without reasonable motive, a plea of insanity must be sustained by sufficient proof; and hence great effort and ability have been directed towards establishing some legal tests of mental insanity by which to rule all cases of the kind. "Experts" from the medical profession are summoned to assist the jury, who are duly instructed on these tests, in applying these criteria to the particular case before them, and thus determining as to the fact of mental insanity. As these "experts" have come to impugn all the formerly received legal tests of insanity, and to advance conflicting opinions concerning the distinctive symptoms and the true nature of insanity, less and less authority is accredited to them; and their cross-examination is, in many instances, made an ordeal through which few of them would freely pass a second time. There is usually no great difficulty when the offender is under the control of frenzy, is a raging maniac, or is a confirmed idiot; but the perplexing case is that of the accused who

has "method in his madness;" who deliberately planned, selected the means, and executed a criminal work. Can such a person be really insane, and, if so, by what tests, symptoms, or criteria can it be certainly determined that he is of insane mind, and, therefore, not punishable?

The scope of the question will be more clearly and fully apprehended by here stating some of the rules actually laid down by the courts, at different times, for testing and distinguishing insane action. The tests as first given were quite vague and unprecise, and though more satisfactory results were reached at a later period, there is not even yet any uniform or invariable rule that governs the courts. The law provides justly enough that an act is not punishable when the person, at the time of doing it, was not of free will, owing to mental disease. Lord Coke merely classified persons mentally diseased: "1°. An ideota, which from his nativitie by a perpetual infirmity is non compos mentis; 2°. He that by sickness, grief, or other accident, wholly loseth his memory and understanding; 3°. A lunatic that hath sometimes his understanding and sometimes not, aliquando gaudet lucidis intervallis, and therefore he is called non compos mentis so long as he hath not understanding; 4°. He that by his own vicious act for a time depriveth himself of his memory and understanding, as he that is drunken." There is here given no definition of insanity. Lord Hale and others subsequently ruled that there is a partial insanity and a total insanity; that a man may be non compos mentis quoad hoc, without being non compos mentis altogether; and that "this partial insanity seems not to excuse them in the committing of any offence for its matter capital;" this rule is still strictly adhered to in England. In 1723, when Arnold was tried for shooting at Lord Onslow, the instruction of the court was that for one to be exempt from punishment in such case, “it must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing no more than an infant, than a brute, or a wild beast." Mr. Erskine affirmed, at a later period, that "no such madness (i. e., entire privation both of understanding and memory), ever existed in the world." None of these rulings of courts or provisions either furnish any definition of insanity or lay down any determinate test or specific symptom by which an insane reason can be distinguished from reason that is sane or in a normal state. The first attempt made with any degree of genuine success to do this, in explaining the nature of insanity as a plea for criminal violation of law, was made by Erskine in the year 1800, when Hudfield was tried for shooting at the king, a case rendered famous chiefly by Erskine's remarkable speech pronounced at its trial. Erskine affirmed that "delusion" is the test or the distinctive symptom of

that insanity which is the only type of mental disease the courts have to deal with, and that ordinarily admits of any doubt or uncertainty. In the words of Erskine, "Delusion, therefore, where there is no frenzy or raving madness, is the true character of insanity;" and we shall see further on that he here assigns a true test of such insanity, understanding insanity in the sense of insane mental action. In the next preceding sentence of his speech he thus expresses more fully the same principle: "These are the cases that frequently mock the wisdom of the wisest in judicial trials; because such persons often reason with a subtlety that puts in the shade the ordinary conceptions of mankind; their conclusions are just, and frequently profound; but the premises from which they reason, when within the range of their malady, are uniformly false; not false from any defect of knowledge or judgment, but because a delusive image, the inseparable companion of real insanity, is thrust upon the subjugated understanding, incapable of resistance because unconscious of attack."

"Delusion," which this sagacious jurist declares to be an unerring test or characteristic of insanity, is variously defined by lawyers and in works on medical jurisprudence. Lord Brougham explained it to be "the belief of things as realities which exist only in the imagination of the patient.." Shelford defines it with less precision to be "the fancying things to exist which can have no existence, and are impossible according to the nature of things, as that trees will walk or statues nod, and which fancy no proof or reasoning will convince." It is plain this last definition does not accurately state the objects of delusion, since they are oftentimes plainly possible things, and even things partly real.

This rule for discerning insane mental action, which was proposed by Erskine, was for many years cited and followed by the courts; and that there is delusion in all insane mental action is a truth beyond dispute; there is now no question of mental disease in which reason has no action at all. The questions, "What is the general test of mental disease?" and "What is the test of insane mental action?" regard different matter. The general test of mental disease is the organic lesion in the brain; the test of insane mental action is delusion. But as it is generally conceded to be a fact, proved by experience, that there may be insane delusion which is limited to some particular objects, or class of objects, while the mind has perfectly sane knowledge of all other things, or the mind may be insane on one subject and sane on all others; it was, therefore, argued that one who is under the control of an insane delusion may still be punishable for a criminal violation of law when the matter of his offence does not fall within the range of his delusion. Hereupon a controversy arose among jurists; some main