the most thorough acquaintance with the insane. This theory would make three classes of human beings:-those who have the sense of duty and obey it; those who have this sense and disobey it, and those who have not this sense and can therefore feel no remorse at a wrong act. It is plain that the first class can never become criminals. As to the second class the testimony of medical experts forbids us to doubt that those affected with suicidal or homicidal mania often feel acutely the sense of duty and suffer all the agonies of remorse; they make most earnest efforts to restrain their evil impulses, and yet these impulses cannot be restrained. Now M. Despine's theory would make this second class free and responsible moral agents, while the authority of the medical profession favors the opposite view. If it be said that at the moment of committing a criminal act there is no feeling of right or wrong, this may be applied to all criminal acts. Responsibility is to be sought in the previous state of the mind. It may be doubted whether there is ever any criminal impulse without some previous opposing desire, which in lower natures takes the place of the more highly developed sense of duty. Many of those criminals that are commonly regarded as insane show by their denials and concealment that they have some idea that their deeds will bring unpleasant consequences on their heads. As to sudden passion or intoxication, it is the principle of English law that these states cannot be pleaded in excuse of crime, although they reduce the punishment. (In Roman law they were admitted as extenuating circumstances.) The law looks back to the question whether the impulse to drink or to get into a passion might have been prevented. If it find that the criminal is in an insane condition produced by excessive and long continued indulgence in alcohol, it sometimes regards him as irresponsible; but if the fury is a short and sudden one punishment is inflicted. Men know well enough that when drunk they cannot control their passions-therefore if they get drunk it is at their own risk. It is in their power not to drink; though they lose control of themselves after drinking. The exceptions are in the cases where the impulse to drink is held to amount to insanity. M. Despine's theory errs in not looking

back far enough. The law must inquire not simply whether the criminal disregarded a sense of duty at the moment of his criminal act, but whether in any of the acts that preceded he had disregarded such warnings. If his conscience has at any time reproached him for indulging in passion or in drink, then he cannot evade responsibility if he has continued his indulgence until he has in a fit of madness become a murderer. Of course this reasoning applies only to those who like M. Despine believe in free-will; the necessarian finds no moment in the life of any man when he could have done otherwise than as he did. As to the third class under this theory, those who have never felt the sense of duty or of remorse, we must postpone our judg ment until we have considered the principles of jurisprudence that apply to the treatment of the insane.

The aim of punishment is two-fold;-to prevent the individual criminal from repeating his offence, and to deter others from following his example. The former of these aims could be very easily attained if it stood by itself; but, unfortunately, the means that would be most effective in the case of the individual have the very opposite result on society at large. The reason of this is plain enough. The law stands to mankind as the concrete expression of their ideas of justice. Whenever, then, the laws are regarded as unjust, their influence is greatly impaired, their execution is in every way hindered, and a dangerous spirit of lawlessness is produced. Any point in the laws that is opposed to ordinary morality operates as an incentive or an excuse on those who are tempted to commit a crime. The first word that leaps to the lips of a child in justification of injury to another is the plea of previous injustice on the other's part. The last word that falls from the hardened murderer is the complaint that he has been unjustly condemned. Every one, even the criminal, claims to desire justice; but as opinions differ, that of the majority must, in practice, be adopted; and where the people make their own laws, it, of course, will be adopted. Hence the impossibility of devising a theoretical code of laws that will practically operate. Laws are enforced by their sanctions; their sanctions appeal to the desires of men; but how those desires will be affected can only be known by experience. So that, in order to know what penalty to attach to any crime, we

must know the popular estimate of that crime; for this will indicate the penalty that will most certainly be enforced.

Now, there is no doubt that popular opinion would favor the proposition: insane persons shall not be punished. This feeling finds expression in the code of France,-"There can be no crime nor offense if the accused was in a state of madness at the time of the act." So in the German penal code,-"An act is not punishable when the person at the time of doing it was in a state of unconsciousness or of disease of mind by which a free determination of the will was excluded." And in New York law," No act done by a person in a state of insanity can be punished as an offense." But in reality this feeling is directed not against punishment in general, but against capital punishment. In spite of the celebrated and often reiterated opinion of Cæsar, the common sense of mankind has ever regarded death as a more severe penalty than imprisonment for life. The late Mr. Seward early distinguished himself by the most strenuous and impassioned efforts, attended with the greatest odium, to save the life of a brutal murderer, on the ground of insanity, and under the conviction that the capital punishment of an insane person was a crime of the blackest dye. And doubtless the hanging of a criminal who was generally admitted to be insane, would provoke the most violent outcry.

And yet the severest penalty, next to death, is often inflicted on the insane without the least opposition from any quarter. They are silently condemned to imprisonment, it may be for life. This deprivation of liberty is to them the severest of all punishments, more dreadful than death. The buildings that contain them are indeed called asylums and not prisons; but there the difference ends. In our modern prisons, the life of the inmates is (in theory) made as wholesome, as regular, and indeed, as pleasant as possible. Nothing more can be done in an asylum. The occupations may be different, the life in the asylum may be in appearance freer, but the unfortunate inmate of either abode must cry, like the starling in Sterne's tale, "I can't get out, I can't get out." From occasional revelations, it appears that the treatment of the inmates of asylums is often more severe than that of convicts; the only difference between the two institutions is that one has a worse name than the VOL. XXXV.

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other. The inmates of the jail are regarded with hatred or horror; those of the asylum with pity or terror. And if, as Dr. Maudsley says, we should look on criminals with compassion and not wrath, every difference would disappear-except one, and a most important one. The convict is committed to prison for a definite term; the madman is sent to the asylum to remain until he gets out.

It thus appears that the popular prejudice as well as the law forbids only the capital punishment of the insane, and demands their imprisonment. As there is no obstacle from popular feeling it becomes the duty of the law to define clearly the term of imprisonment. Now the plight of the insane man is so much worse than that of the ordinary criminal that the term of his imprisonment must be for life unless he is pronounced cured. All sentences are life-sentences-with the possibility of a pardon or a new trial. Here now is the proper field of medical jurisprudence so far as it relates to the criminally insane. The doctors must tell the lawyers whether their experience allows the hope that a madman may be cured, and cured beyond the possibility of a relapse-for a sane man that may at any time lapse into madness is too dangerous a member of society to be permitted to remain at large. The tests of permanent cure must be clearly stated and supported by numerous and well-established instances. Then it will become the duty of the lawyers to see that it is provided by statute that every prisoner acquitted of a criminal charge on the ground of insanity shall be sentenced for life to a prison, or asylum for the criminal insane; provided that if such evidence of permanent cure as is described above be produced in open court with due form of law, the court shall order his release.

The practice of dismissing insane persons as cured, by the mere fiat of the chief of the asylum, must of course be abolished. With such legislation it is reasonable to suppose that the temptation to commit crime with the expectation of securing immunity on the ground of insanity would be removed. If it were generally understood that the penalty for criminal insanity was imprisonment for life, the plea of affective or emotional insanity might not be so often heard.

We have still to consider one class of the insane, in many respects a very peculiar class. The most atrocious and revolt

ing murders are committed by those who are most clearly unlike other men, most decidedly insane, most certainly irresponsible. Their acts are without comprehensible motive to the ordinary mind, they are often attended with mutilation of the victim, and quite often the victim is some member of the family of the murderer, some child or other defenceless person. These acts, shocking enough in any case, are rendered still more ghastly from the fact that we cannot conceive any possible object or gratification. Murder from anger, murder for revenge, murder for money;-all these we can understand because we can suppose ourselves in circumstances where we might commit them. But murder for itself, accompanied with the torture and dismemberment of the victim-there is a grisly horror about it that curdles the blood.

It is the capital punishment of such murderers as these, the Pomeroys and Le Pages, that excites the indignation of Dr. Maudsley and roused the eloquence of Seward. And yet strong reasons may be advanced to show that death is the proper fate of these wretched creatures, and that justice is not violated but defended by their extermination. It seems unfortunate that the barbarous method of hanging should still be retained when so many painless ways of extinguishing life are known. A great share of the opposition to capital punishment probably arises from the odium of this particular mode of inflicting the death penalty. It is hard to see why it is unjust to deprive such a murderer as Le Page of life while it is just to deprive him permanently of liberty. If several innocent persons will lose their lives by allowing one irresponsible murderer to retain his, it is strange justice that spares the murderer. The insane that are afflicted with homicidal mania are regarded by experts as in most cases incurable. Yet they will act in such a way as to impose on the most experienced, and secure their own discharge from custody; and then will commit another atrocity. If retained in confinement they will contrive with apparently devilish malignity to throw their keepers off their guard in order to gratify their terrible craving for blood. Their lives are a burden to themselves and still more to their friends. Their death from natural causes does not excite mourning, but is felt as a relief. In some cases their avowed motive in murder is to be hanged-and it is hard