time to know the law and voluntarily do it, or refrain from doing it, it is necessary to recognize the fact that the laws as addressed to the community are not applicable to them, and hence it arises that exceptional legislation is necessary for this class of persons, or persons who are called insane. There has been some confusion introduced into this question by the use of the word insane, and for ourselves we should have preferred a definition of disability and irresponsibility, without regard to the cause by which such was produced. But with the explanation that the term insane, as used in law, does not include all those who are insane in fact, but only those who are not entitled to perform certain acts of citizenship, and those who are not punishable in respect of any crime they may commit-an explanation which has been repeatedly overlooked-no evil can arise from the use of the term insane as applicable to that class, to which the laws are not applicable, and for whom it is necessary to legislate specially.

26. Laws with regard to Lunatics.-It being seen that certain special legislation was necessary, it became necessary to consider what these laws were. First, it was perceived that every man has a right to his personal liberty so long as he uses that liberty in a way which does not deprive his neighbors or fellow-men of a like enjoyment of personal freedom. In this place, it is unnecessary to consider the real fundamental principle upon which all law is founded, and which justifies all deprivation of freedom. It has been argued ably by the late Mr. Mill, and more recently, and not less ably, by Mr. Fitzjames Stephen; but it is not with the foundation but with the facts of law that we have here to do. The principle which is enunciated above, entitled the State to interfere with the liberty of insane persons who were dangerous to themselves or others, and hence it became usual to confine insane persons in places where they might be prevented from doing such injury, and where, at the same time, they might, by care and treatment, be brought to that condition of health which would again entitle them to the enjoyment of all the rights of a citizen. In old times, when the checks of the law were less careful than they are at present, these asylums or retreats, in which insane persons were

incarcerated by their friends, were sometimes made the instruments of private ends of injustice, and sometimes lent themselves as the means of a plot which had the satisfaction of private vengeance, pride, jealousy, or avarice, for its end. One of these is described in Smollett's novel, Sir Launcelot Greaves. But those days are gone by. The law has not only made it necessary that two medical men should certify that the person who is about to be incarcerated is of unsound mind and a fit person to be detained, but has instituted a Board of Inspectors, (Commissioners,) whose duty it is to visit all such establishments and to listen to the complaints of any person who may think he is unjustly detained, and who have the power, in the event of any contravention of such obvious law and statute enactment as the detention of a person of sound mind, to deprive the proprietor of such asylum of his license, by which alone he is warranted in receiving lunatics for profit into his house. Besides, the law has provided for the care and treatment of those persons whose friends are not in a position to send them to one of those private asylums which are kept for profit, by the erection and maintenance of large pauper asylums for the various boroughs and counties; and these, from the excellence of their management, from the humanity which characterizes their treatment, from the scientific work which is done in them, and from the large and increasing percentage of cures effected in them, are institutions in which the country may well feel pride. But the question of the compulsory detention of lunatics in asylums or hospitals does not really fall within the scope of our present undertaking. The law which regulates the admission of persons into asylums, their detention in and their discharge from asylums, as well as the duties of the Commissioners in Lunacy, and many other matters connected therewith, is embodied in various statutes, and to these, and the works which contain and comment upon them, the reader must be referred. The questions with

The Lunacy Acts by Danby P. Fry. London: 1864. Archbold's Law relative to Pauper Lunatics. London: 1854. Elmer's Practice in Lunacy. London: 1871. Aston's Law of Pauper Lunacy. 1849. Phillips' Law concerning Lunatics, etc. London: 1858. Sablon & Browne's Handbook of Law and Lunacy. London: 1872. Winslow's Law of Lunacy. London: 1873.

which we have in this work more particularly to do, are those which are connected with the enjoyment of civil privileges or with the immunity from punishment in the event of an act being done, or a crime being committed by a person of unsound mind. A man makes a will and dies, and his relations who are not mentioned in the testament, and who would have profited in case of an intestacy, assert that the testator was mad, and therefore unable to make a will. A man with property is profuse in his expenditure, and those who would profit if he was a miser, maintain that he is insane, and therefore unable to manage his affairs, and request that his hands be tied by the red-tape of the law, and make an effort to have a committee of his person and estates appointed. A man is murdered, and the only person who saw it done is a person who is regarded by some as an imbecile, yet the prosecution tender him as a witness. An act which in the case of a sane man would be a crime is committed, and the question arises as to whether the individual is sane or insane; whether, under the law as it at present stands, the person committing the crime is liable to suffer punishment for the act committed by him, or is to be exempted on the ground of unsoundness of mind? These questions, which are evidently, in individual cases, of paramount importance, and which very frequently arise in practice, indicate the necessity of arriving at some thorough answer to the questionWhat is this insanity which incapacitates a man from making a will, from managing his own affairs, and which, in case he commits a crime, will protect him from the ordinary consequences of such an act? These, then, are the questions with which we have to do in this place. We will consider the last first, as it is the question concerning the answer to which there has been most difference of opinion.

27.

Responsibility for Crime considered-Foreign Rules of Law.-It may be well before entering on the statement or the discussion of the law of England in regard to the responsibility for criminal acts, to refer to the law of one or two other countries in reference to this matter. In Scotland, where the whole of the questions of criminal law have received intelligent and philosophical attention, it is

held that insanity is an absolute defence if proved.' But the insanity which will prove an absolute defence is to be ascertained by the same rules which have been laid down in England.2 In France, the article of the penal code which bears upon this subject is: "There can be no crime nor offence if the accused was in a state of madness at the time of the act." In Germany, the latest penal code has laid it down that “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 will was excluded." And the revised statutes of New York enact, that "no act done by a person in a state of insanity can be punished as an offence." Although some of these rules have been praised as incomparably better than that which is laid down in England, these praises have generally come from medical men who have failed to understand the subject, and are for the most part quite beside the mark. The German definition of irresponsibility is the only one which indicates what the law regards as the nature of insanity, and that view differs in no particular from that which is entertained in England. To know whether the criterion of France or of America is less narrow or better founded than that of this country, we would require to know what the law regards as insanity or madness in these countries. It would be by no means an incorrect statement of the law of England to say that insane persons are irresponsible for criminal acts and incapable of civil ones, but the difficulty arises in endeavoring to ascertain the precise meaning of the word insane, who are included and who are excluded from responsibility and capacity by the term, and precisely the same difficulty arises in connection with the use of the same word in the French Code and the New York Statutes. The real meaning of these sentences can only be discovered by an examination of the cases which have been decided under them, and by the tests which the Judges who have had to administer these laws have laid down. Such an examination proves that in no particular does the law of either of these countries differ from our own, and that the praise

1 Hume, 41. And see Macdonald's Criminal Law of Scotland, p. 15. Per Lord Justice-Clerk Hope, in the Lord Advocate v. Gibson (High Court) 23d Dec. 1844, 2 Broun's Justiciary Repts. 332.

which has been bestowed upon them by certain zealous members of the medical profession was somewhat absurd.

28. Responsibility of the Insane-Former English Rules. The effort of the Judges has at all times been to discover whether an individual who was brought before them charged with a criminal offence was really amenable to the laws or not, whether at the time he committed the act he knew what he was about, whether he knew that the act he was perpetrating was forbidden, and whether he had the power to refrain from doing it. If he did not know what he was about, if he did not know that the act done was contrary to the law of God or of the land, if he had not the power of volition over his own acts, he was insane in the eye of the law and irresponsible. With the view to the ascertainment of these facts, they laid down certain tests, some of which have scarcely been adequate to the end in view, but all of them infinitely better than any which the most ingenious medical men have proposed to substitute for them. Lord Coke classified madmen, and described four kinds of men who might be looked upon as non compos mentis: "1. An ideota, which from his nativitie by a perpetual infirmity is non compos mentis; 2. Hee 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 gaudel lucidis intervallis, and therefore he is called non compos mentis so long as he hath not understanding; 4. He that by his own vitious act for a time depriveth himself of his memory and understanding, as he that is drunken." It is not argued that Lord Coke's classification is without defect. If it pretended to be a complete definition of the legal tests of insanity it would be exceedingly defective, for in the first place the first is unintelligible without a definition of the word idiot; the second is a description which was never realized in fact, as no lunatic ever was entirely deprived of memory and understanding; and third, he refers only to that form of partial insanity which is marked by lucid intervals, and not to that with which we are all familiar, which may be called by any name one pleases, but which is characterized by delusions

12 Coke on Littleton, 247 a.