84 THE POPULAR SCIENCE MONTHLY, 



one will be found to uphold this state of things as satisfactory, although 

 there is great difference of opinion as to the cause of the uncertainty ; 

 the lawyers asserting that it is owing to the fanciful theories of medi- 

 cal men who never fail to find insanity w^bere they earnestly look for 

 it, the latter protesting that it is owing to the unjust and absurd cri- 

 terion of responsibility which is sanctioned by the law. Meanwhile, 

 it is plain that, under the present system, the judge does actually 

 withdraw from the consideration of the jury some of the essential 

 facts, by laying down authoritatively a rule of law which prejudges 

 them ; the medical men testify to facts of their observation in a mat- 

 ter in which they alone have adequate opportunities of observation ; 

 the judge, instead of submitting these facts to the jury for them to 

 come to a verdict upon, repudiates them by the authority of a so-called 

 rule of law, which is not rightly law, but is really false inference 

 founded on insufiicient observation. 



In America it would seem that matters have been little better than 

 they are in this country, the practice of the courts, like that of the 

 British courts, having been diverse and fluctuating. In many instances 

 juries have been instructed, in accordance with English legal authori- 

 ties, that, if the prisoner, at the time of committing the act, knew the 

 nature and quality of it, and that in doing it he was doing WTong, he 

 must be held responsible, notwithstanding that on some subjects he 

 may have been insane ; that, in order to exempt a person from punish- 

 ment, insanity must be so great in extent or degree as to destroy his 

 capacity of distinguishing between right and wrong in regard to the 

 particular act. But in other instances the instructions of the judges 

 have been different. In the case of State v. Wier^ Grafton, 60, 1864, 

 Chief- Justice Bell charged the jury thus ; 



"The evidence must satisfy the jury that the party at the time of coinmit- 

 ting the act in question was insane, and that the disease is of such severity that 

 the person is incapable of distinguishing between right and wrong in that par- 

 ticular case, or of controlling the sudden impulse of his own disordered mind; 

 or, as the same rule has been laid down by an eminent judge, a person, in order 

 to be punishable by law, must have sufficient memory, intelligence, reason, and 

 will, to enable him to distinguish between right and wrong in regard to the par- 

 ticular act about to be done, to know and understand that it will be wrong, and 

 that he will deserve punishment by committing it ; to ichich I add sufficient men- 

 tal poicer to control the sudden impulses of his own disordered mind. ... I have 

 been accustomed to regard as the distinguishing test of insanity the iiiaMlity 

 to control the actions of a man's mind. . . . The power of the control of tlie 

 thoughts being lost, the power of the will over tlie conduct may be equally lost, 

 and the party under the influence of disease acts not as a rational being, but 

 under the blind influence of evil thoughts which he can neither regulate nor 

 control. It was, perhaps, not without reason that in ancient times the insane 

 were spoken of as possessed of an evil spirit, or possessed with a devil, so foreign 

 are the impulses of that evil spirit to all the natural promptings of the sane 

 heart and mind." ^ 



^ Quoted in the Report of State v. Jimes, pp. 376, 3*77. 



