that it is a disease of the moral sense, and various other assertions of similar import. Writers have not taken the trouble to ascertain, in the first instance, whether there be a moral sense or not; they have not endeavored to discover whether it is possible that reason, when directed in one particular direction, can be affected with disease, while in other directions it can be exercised under all the conditions of health. It is an easy thing to take for granted, and then to assume as proved.

161. Ethics and Government.-Ethics is the science of the laws of our actions looked at with 100 regard to their morality or immorality, and presupposes a knowledge of man as a moral agent. If, however, our ideas of right and wrong are formed in connection with the ideas of reward or punishment-if our dislike and disparagement of certain actions, and our approbation and praise of other actions, is founded on our belief that in the one case the individual committing the action should be punished, and that in the other case he should not, it is evident that our moral distinctions have an intellectual origin, and that any such phrases as moral sense, or conscience as distinguished from ordinary intellectual function, are apt to deceive, and any distinction between moral and intellectual insanity is unphilosophical. This is not the place to consider whether this is a true statement of the fact or not. Man, individually, ought to make all his actions perfect. Government has to be content with a moral code that will do. Government cannot enact the whole moral law as laid down in books of ethics or in great human hearts. All it can attempt is to make men free to be good if they will. by restraining acts of violence. Expediency is essentially the science of government, and as that is the case it will be sufficient if we, in this place, point out what acts government ought to recognize as moral, what acts government ought to punish as immoral, and in what way a somewhat rough and ready morality may be applied to the solution of the questions which arise in reference to the so-called moral insanity.

162. The relation of Laws and Morals.-That for all governmental purposes "good" may be defined as "happi

ness," " and "bad" as "misery;" and that as each person's happiness is in this view regarded as good to that person, the general happiness must be regarded as a good to the aggregate of persons, seems to us to be true. That those actions which tend to the happiness of the individual, and which do not interfere with any enjoyment of other persons, should be regarded by the legislature as moral, and that such acts as lead either directly or indirectly to the misery of the individual, or which, while ministering to the happiness of the individual, are calculated to take, either directly or indirectly, from the happiness of others, should be regarded as immoral, seems to us fair. The government, be it representative or not, is a trustee for the community. The object of the trust is the attainment of the greatest amount of happines to the cestui que trust, and one of the means adopted in this country for the 107 attainment of that object is the enactment of a code of laws, which declares that certain acts-believed to militate against the public good-shall be punished in case they are committed, not because government wishes to punish crime that has been committed, but because the invariable connection between an act and a serious disadvantage to the actor is likely to lead to the discontinuance of the act, and in that way lead to the greater happiness of the community.

163. Distinction between Men and Animals: Mental Characteristics..-The various mental peculiarities, some of degree, some of kind, which distinguish man from the brute, seem to be-1. The greater ability of the former to profit by experience, to get the essence out of facts, to learn something more from his faults and failures. 2. The more perfect means of communication which man possesses in grammatically constructed languages, and a much more complete repertory of the lower gestures of body, and the higher gestures of expression. 3. The more intimate relations of man to man than those which exist between animal and animal, which lead to an infinitely great play of feeling, to voluntary ornamentation, which is not directly connected with material well-being, and to which may be referred the tendency to associate, which is characteristic of man, and which

induced Aristotle to call him a political being. But of these three characteristics of humanity the first seems to us, perhaps, the most important, and possibly the characteristic to which the development of the other two peculiarities might be referred. With regard to the power which is inherent in the being of man, of availing himself of surrounding phenomena, of profiting largely by experience, and of advancing through failure to success, through pain to pleasure, it must be borne in mind that animals have the same power, although in a less degree. Monkeys that have once burned their lips in swallowing hot liquids afterwards wait with patience until they are cooled.' Every one knows that by means of rewards and punishments dogs, cats, canaries, and fleas, can be taught many things. But there is a certain degree in which this power or capacity is possessed by different animals, and beyond that power punishment is thrown away, or rather its effects are manifested, not in the improvement of the individual on whom the punishment is inflicted, but in deterioration both of the individual punishing and the individual punished. The doctrine of all true [108 educational or reformatory punishment is to punish as long as the individual and class to which he belongs, and on whom the example will operate most powerfully as a deterrent, have capacity sufficient directly to concatenate the suffering with the offence, and to understand how they may avoid the commission of a like crime. Any infliction of punishment under circumstances other than those just alluded to is not only inefficacious, but tends to diminish the aggregate happiness of mankind, and is to that extent a breach of the trust reposed in the government of the country.

2164. When the existence of Moral Mania should be admitted. It will, therefore, be understood that repeated convictions on account of the same crime would naturally lead to a suspicion of an amount of incapacity which would justify the law in exempting an individual from criminal consequences; and while such an amount of incapacity is proved in reference to acts occurring in the life of the individual,

Bennet, Wanderings in New South Wales, vol. ii., p. 158.

other than those which have come under the cognizance of courts of law, the presumption is strengthened; and further, if in conjunction with these circumstances it is found, upon inquiry and examination, that there is an inherited tendency to insanity, or malformation of the skull--if the history of the case is such as to lead a physician to suppose that it is not impossible that the mind may be diseased, in such a case it seems to us that the law would do well to admit the existence of moral mania, and exempt the individual from the legal consequences of criminal acts. But in no case, it seems to us, should such a disease be regarded as protecting the individual from these consequences, in which it cannot be clearly and satisfactorily proved that quoad the act-the character of which is in question—the accused was not a voluntary agent and sentient being. We shall, in another place, consider this subject more fully, and point out the reasons. for the legal principles which are applicable to the rare cases in which this disease of the feelings and volitions of an individual is proved.

165. What Physicians expect the Law to do in relation to Moral Mania.—But the law is asked to do more: it is asked to believe that persons who, while "labouring under this disorder, are," according to Pritchard, "capable of reasoning or supporting an argument on any subject within their sphere of knowledge that may be presented to themand they often display great ingenuity in giving reasons for their eccentric conduct, and in accounting for and justifying the state of moral feeling under which they appear to exist" are in no case fit objects for punishment. In order to show the ideas which are entertained by some physicians as to the duty of the law in relation to crime, we may refer to a case alluded to by Dr. Gray,2 in which a medical man maintained in the witness-box that mania might be so brief as to come on in an instant, simply from seeing a person against whom you had some feeling that you had been wronged, and

Cyclopædia of Practical Medicine, Art. "Insanity," p. 826.

2 Of the State Lunatic Asylum, Utica, N. Y. We quote from a report of a speech made during the proceedings of the Association of Medical Superintendents (America) held May, 1872. American Journal of Insanity, Oct. 1872.

disappear instantly with the firing of a pistol or plunging of a dagger into his heart. He further asserted that the very act was not only the culmination of insanity, but the cure of the disease. This was in a case in which it appeared that the accused, a woman, had provided herself deliberately with a pistol, watched for her victim to enter a street car, walked into the car and sat down, looked the man in the face, spoke to him, and having received, as she said, an insulting answer, shot him instantly. The medical witness declared that the accused was sane up to the time the reply fell upon her ear; that the reply was the goad to the madness which was instantly developed; that an irresistible, insane impulse was aroused in the breast, not one of criminal intent and character, but one arising from the complete overthrow of the intellect—a form of insanity instantly developed under the circumstances in which she saw the man. Although she saw the smoke, saw the wound in his face, and saw the pistol and picked it up, adjusted it and fixed it back in its place, although thus instantaneous, this was insanity-disease-and the shooting relieved the mind, and the person was at once well. Now, a medical man labored under the ridiculous belief that he would get people to believe him, and actually had the effrontery to expect that the law would recognize such an insanity as an excuse for crime. It is owing to such demands that the criminal courts of this country have been less willing to admit moral insanity as a bar to punishment than they would otherwise have been, for those persons who have gone so far as to assert that a morbid perversion of sentiments, as manifested by repeated acts of crime, should in all cases be treated as disease, have not hesitated to regard all crime as a form of morbidity, instead of regarding it, in its truest sense, as one of the conditions of the health of a [109] community. That such pretensions should have made lawyers and legislators skeptical as to the authority to be attached in questions of this kind to the evidence of medical gentlemen, was not to be wondered at.

166. The Nature of Moral Insanity considered.But the two questions-Is there moral insanity? and if it is proved, how far should law recognize it as depriving the in