the establishments under their control; and to assert what no one in this country who has the least knowledge of the subject will believe-viz., that mental unsoundness is incompatible with crime. Indeed, cases come every day under the cognizance of those who have to do with the insane, in which the criminal act is entirely beyond the sphere and influence of the reigning delusion, and, accordingly, in so far as that delusion is concerned, the product of a sound mind.

20. Punishment considered. The meaning, then, of punishment as a deterrent seems to us to be to supply stronger motives to those who do not find the repulsion of vice and the allurements of virtue sufficiently strong to force them from paths of violence and aggression into paths of peace and good-will to their neighbors. It seems to us unnecessary to consider the question whether the ideas of right and wrong were due in their inception to the experience of rewards and punishments-whether the moral sense is the inheritance of the past experience of disagreeable consequences resulting from conduct which was productive of mischief to one's fellows, and the cognate experience of reward and pleasure as the consequents of a course of conduct which resulted in the happiness and welfare of one's fellows. All the pains of our ancestors have doubtless contributed to our comfort, and the enforced obedience to the laws in old times may have become habitual in the race, and observable in our consciences of to-day. These are interesting speculations, and there is a great deal to be said for this theory of morals, and at any rate nothing to be said in denial of the proposition that even supposing this was not the only thing that went to the formation of current virtue, it must have had much to do in strengthening the position of virtue and undermining the stronghold of vice. Make virtue more profitable than vice, and you will do much to induce those who would have adopted crime assume probity. Now, the ordinary motives being insufficient to induce certain persons to do well simply upon hereditary instinct, as was proved by the fact that crimes were still committed, it was necessary to continue the process which had gone to the formation of a moral sense. It was necessary that the harmless should be

protected from harm-necessary that the harmful should be prevented from doing mischief. This was, according to the view of all governors throughout the world, savage and civilized, to be effected by means of holding out extra inducements to the evily-disposed to refrain from aggression; and as protection was a sufficient reward for virtue, punishment was to be the reward of crime. Punishment is only, then, the motive which government supplies to induce, or, to use a stronger word, compel those who are evily-disposed to do well. As a man can only be affected in his property or his person, penalties have taken the form of fines and of bodily pain. Every one, then, who can be made to do better in future by the infliction of punishment, is punishable: every one who can be restrained from doing ill by the fear of penalty, is liable to punishment. We have already pointed out the fact that a large number of persons who may undoubtedly be called insane from a medical point of view, can be deterred by the dread of punishment. It cannot be denied that persons suffering from delusions are amenable to the influence of ordinary motives, 15 and to say that such men could in no way commit crimes--to say that the existence of epilepsy would render the victim of petit mal irresponsible for his act in case he forged or stole--and some medical men have gone so far as to hazard assertions of a similar kindis as absurd as to demand that all criminals shall be looked upon as under the influence of diseased organism, and that they should be treated with the leech or the lancet, or any system of medicine that may for the time being be in vogue, rather than with the tread-wheel or pillory. We cannot get ordinary common-sense people to believe that every man steals just because he cannot help it; indeed, on the other hand, they are inclined to believe that if they threaten to knock a man down, and have the power to carry that threat into execution, if he attempts to steal their watch again, that the thief's organism will not force him to make the attempt. They believe that it is possible to supply motives to those people who do not see that it is for their own interest to respect their neighbor's feeling and property, and that government, as the motive administrator, can, in most cases, give considerable security by this means to life and property.

And, strange to say, the principle of the law in declaring certain punishments with the view of preventing mischiefwhich is ultimately reducible to pain--is precisely the same as that which actuates those pig-headed people who are guided by common sense. Now, it has seemed reasonable to the law that, seeing that the insane are really, for many purposes, sane-and we are told by medical men of lunatics with whom you may converse for hours without discovering the fact of insanity, and these lunatics are evidently for the purpose of the said conversation sane-we say, it has seemed reasonable to the law that as lunatics are sane for many purposes, they should for those purposes be looked upon as sane, and treated accordingly. Our conclusion therefore is, that responsibility or punishability may be defined as the knowledge that certain acts are permitted by law, and that certain acts are contrary to law (right and wrong); and combined with this knowledge, the power to appreciate and capacity to be moved by the ordinary motives which influence the actions of mankind. And we are further of opinion that this mental state can be satisfactorily tested by the rules of law which have been stated above; and in bringing to a conclusion what we had to say with reference to the responsibility of the insane, we may say that if a man [21 has no sense of pain, he will not learn to dread the fire by being burned. If it is the same to a man whether he take asafoetida or sugar into his mouth; if it is the same to him whether his neighbors praise or disparage him; if it is the same to him whether he have or have not liberty-then any of the laws that are at present in force in this and in other civilized countries are utterly inapplicable to him, and, as they do not apply to him, he is not responsible to them. But if a man, be he sane or insane, is capable with regard to the act in question of being deterred by fear of punishment-if, like the ordinary criminal, it was a belief in the probability of escaping detection that weighed on the side of committing the act-if it was mainly the ordinary motives which led to the commission of the crime, and a preponderance of ordinary motives would have deterred-thez the criminal laws of this land are applicable to the accused, and he is responsible to those laws, and has no claim to be exempted from punishment on the ground

of mental enfeeblement or derangement of intellect. It is to be remembered that a criminal code has been made with reference to those who are in many respects defective human beings. Certain penalties have been declared as the consequences of certain acts, and it is to be remembered that the law is excellent only where, with its punishments, it emphasizes the assertions of Nature. Laws are for those who cannot see that their truest good lies in order; for those who are incapable of appreciating the fact that honesty and virtue and peace are the conditions of the greatest possible happiness. The wise man would not steal, whether there were a statutebook or no. The good man has a hundred motives for respecting the life of his neighbor besides the fear of a shameful death. But while the statute law supplies certain powerful and easily appreciated motives to guide the actions of those who are so weak as not to see what is for their real advantage of those who have so little self-control that, without the fear of immediate punishment, they could not respect the property of their neighbors-it does not, after prescribing one set of punishments for such classes, make, as it were, a second story of the statute-book, and prescribe other punishments for those who, even with the motives supplied by law, are unable either to see what is best for them, or unable to [22 restrain their desires, although conscious that punishment will follow. It confesses that there are certain classes to whom the law can supply no motive sufficiently strong to induce them to conform to certain rules, and it looks upon those persons as insane and as irresponsible; as punishment of those individuals would fail first in reforming the criminal himself; second, in deterring others of the same class from committing a similar offence: although it might, as an example, deter others, the law does not punish such persons, but contents itself by protecting the community from the commission of the crime again by the same individual.'

21. Proposed Graduation of Responsibility.- Every one who has made even the crudest observation of his fellow

There is scarcely any man," says Grotius De Jure Belli et Pacis B. II., c. xx., 29, "wicked for no purpose. If there is any one who loves wickedness for its own sake. he proceeds beyond the bounds of human nature."

men must have become cognizant of the fact that capacity varies infinitely. From a Shakespeare to a village idiot there are a million degrees of mental acuteness and mental power; indeed, no two men born into the world were ever similarly endowed. There is the same marked graduation of the mental ability and rational power among the insane. Not only do they differ in the first instance in sane capacity, but their insanities differ the one from the other, and would, had they possessed equal power in the first instance, introduce infinite varieties. Now, [14] the law has been censured much and often because it has refused, provided a man be non compos mentis, to measure the degree of his capacity. And yet the difficulty of measuring every man's capacity, and the rigorous adjustment of the punishment to the amount of criminality, is so great-nay, so thoroughly beyond the power of any tribunal that the law has very properly refused to attempt to gauge guilt and accurately apportion punishment. When the legislature determines that a certain punishment shall be associated in all cases with the proved commission of a certain crime, to demand the weighing out of a so-called justice as we weigh out pounds of sugar, is absurd. When law says a man shall be hanged by the neck till he is dead, and two men, A and B, suffer this extreme penalty of the law, is that the same punishment to A, who has just come into life with a million possibilities which the incubating future may hatch, and to B, whose possibilities have turned out addled? But it is well to recognize the fact that no human institution is absolutely perfect, and that it would be ridiculous to expect the law to do absolute justice. Is it not for Heaven to do justice? Is it not for the law to prevent crime? And the way to do so is not to attempt to apportion punishment to every individual crime, but to prescribe a certain penalty as an all-sufficient motive to keep all sane men from the commission of the crime in question. Because A is a man with a calibre infinitely less than that of B, he is still in law held to be bound by his contracts, responsible for his acts, and may exercise all the privileges vouchsafed to a citizen of the State to which he belongs. That there is a higher law which demands greater probity from the one than from the other that there is a higher law which makes the true