86 THE POPULAR SCIENCE MONTHLY. 



logical darkness and confusion, is that a product of mental disease is not a con- 

 tract, a will, or a crime. It is often difficult to ascertain whether an individual 

 has a mental disease, and whether an act was the product of that disease ; but 

 these difficulties arise from the nature of the facts to be investigated, and not 

 from the law ; thej are practical difficulties to be solved by the jury, and not 

 legal difficulties for the court." 



These American decisions are certainly an advance on any judg- 

 ment concerning insanity which has been given in this country ; they 

 put in a proper light the relations of medical observation and law in 

 questions of mental disease ; and it cannot be doubted that future 

 progress will b^ along the path w^hich they have marked out. The 

 question which will probably be submitted to the jury will be sub- 

 stantially, Was the act the offspring or product of mental disease ? — 

 and it will be seen that to lay down any so-called test of responsibility, 

 founded on a supposed know^ledge of right and wrong, is, as Judge 

 Ladd remarked in State v. Jones^ " an interference with the province 

 of the jury, and the enunciation of a proposition which, in its essence, 

 is not law, and which could not in any view safely be given to the 

 jury as a rule for their guidance, because, for aught we can know, it 

 may be false in fact." Seeing, then, that, by the unanimous testimony 

 of medical men of all countries who have been practically acquainted 

 with insanity, it is declared positively that such a propjosition is false 

 in fact, it is clear that the law", in enunciating it, is not only overstep- 

 ping its rightful function, but actually perpetrating an injustice. It 

 is simply doing in regard to insanity what it did formerly in regard to 

 witchcraft — giving erroneous opinions on matters of fact to the jury 

 under the name of law, and with all the weight of judicial authority. 

 In one of the latest trials for witchcraft in this country. Lord Hale, 

 whose crude dicta concerning insanity were so long acted upon in our 

 courts of justice, instructed the jury: "That there are such creatures 

 as witches he made no doubt at all. For, first, the Scriptures had 

 affirmed so much. Secondly, the wisdom of all nations had provided 

 laws against such persons, which is an argument of their confidence 

 of such a crime." The jury accordingly found a verdict of guilty ; 

 the judge, satisfied with it, condemned the prisoners to death, and 

 they were executed. It is one of the last executions for witchcraft in 

 this country, for it occurred at a time — and this should never be for- 

 gotten — when the belief in witchcraft was condemned by the enlight- 

 ened opinion of the country. As it was then with witchcraft, so it is 

 now with insanity : the judge instructs the jury wrongly on matters 

 of fact ; they find accordingly a verdict of guilty ; he is satisfied with 

 the v^erdict, and an insane person is executed. 



The falseness of the legal position wdll appear at once if we sup- 

 pose a case of poisoning instead of a case of mental derangement : 

 what would be thought of a judge who, when medical evidence of 

 poisoning was given, should instruct the jury, as a principle of law, 



