88 THE POPULAR SCIENCE MONTHLY, 



ease; and, secondly, whether and how far free-will is excluded by 

 them. In the case of a partially insane person acting to all appear- 

 ances from an ordinary criminal motive, the act must be weighed in 

 relation to these two questions ; and, if they are answered in the nega- 

 tive, he would clearly be amenable to punishment. 



It is abundantly evident from this short review of the codes of 

 other countries that nothing can be said in justification of the super- 

 stitious reverence with which English lawyers cling to their criterion 

 of responsibility. It is hard to see why they should suffer a greater 

 pang in giving up this formula than they did in giving up other for- 

 mulas which, having had their day and done much evil work, were 

 abandoned. The " wild-beast theory," once so sacred, has been rele- 

 gated to the record of human mistakes ; the theory of a knowledge 

 of right and wrong in the abstract which followed it was, in like man- 

 ner, repudiated as men became better acquainted with the phenomena 

 of mental derangement ; surely, then, the metaphysical theory of a 

 knowledge of right and wrong in relation to the particular offense, 

 which finds little or no favor out of England, and which is condemned 

 unanimously by all persons, in all countries, who have made insanity 

 their study, may be suffered to join its predecessors, without danger 

 of injury to what all those who approve and those who disapprove it 

 (Jesire — the strict administration of justice. Physicians have no 

 right to interfere in the administration of the law, which is the judge's 

 function, nor is it their duty to decide upon what is necessary to the 

 welfare of the state, that being the legislator's work; their concern 

 is with the individual, not with the citizen. But they plainly have the 

 right to declare that the nature of a crime involves two elements : 

 first, the knowledge of its being an act contrary to law ; and, secondly, 

 the will to do or to forbear doing it, and to point out that there are 

 some insane persons who, having the former, are deprived by their 

 disease of the latter ; who may know an act to be unlawful but may 

 be impelled to do it by a conviction or an impulse which they have 

 not the will or the power to resist. Recognizing the obvious differ- 

 ence between him who icill not and him who cannot fulfill the claims 

 of the law, it is their function to point out the conditions of disease 

 which constitute incapacity, and, when they find a false fact solemnly 

 ennnciated as a rule of law, to bring forward into all the prominence 

 they can the contradictory instances which their observation makes 

 known to them. "That cannot be a fact in law which is not a fact in 

 science ; that cannot be health in law which is disease in fact. And 

 it is unfortunate that courts should maintain a contest with science 

 and the law^s of Nature upon a question of fact which is within the 

 province of science and outside the domain of law." ^ 



^ Judge Doe, Boardman v. Woodman. " If it is necessary that the law should en- 

 tertain a smgle medical opinion concerning a single disease, it is not necessary that that 

 opinion should be a cast-off theory of physicians of a former generation."— (P. 150.) 



