INSANITY AS A DEFENSE FOE CRIME. 



431 



and uncertain class as from the sane murderer, 

 who might live to see the error of his evil 

 way, and abandon it ; while the insane, . be- 

 cause of less intelligence and more obtuse sen- 

 sibilities, is not so easily influenced." He fur- 

 ther says : " The fear of punishment or dread of 

 death is as great in case of the insane as of the 

 sane, and has the same restraining influences ; 

 therefore, the insane criminal is morally re- 

 sponsible for his acts." 



Dr. William A. Hammond, writing on " The 

 Punishability of the Insane," says : " Regard- 

 ing the matter from the stand-point that all 

 laws are for the protection of society, and that 

 the principles of abstract justice, as between 

 the offender and society, have no necessary 

 place in jurisprudence, there seems to be no 

 valid reason why, if the protection of society 

 demands it, the insane should not be punished 

 for violations of law, even though they be 

 morally irresponsible for their acts by reason 

 of delirium, dementia, morbid impulse, emo- 

 tional insanity, or any other form of mental 

 aberration." And again: "The influence of 

 example is not lost on the insane, or those who 

 are on the verge of mental alienation. Every 

 medical officer of an asylum, or other physi- 

 cian who sees many cases of insanity, knows 

 that lunatics are capable very generally of be- 

 ing influenced by rewards for good, or punish- 

 ments for bad, conduct. Now, there are many 

 persons passing through life scarcely suspect- 

 ed of insanity, but who, nevertheless, are the 

 subjects of mental alienation. They only re- 

 quire an adequate existing cause to produce 

 such a state of mental disturbance as to turn 

 the scale decidedly, and urge them to the per- 

 petration of some overt criminal act usually 

 a murder. If these people are made to under- 

 stand that they will be held legally responsible 

 for their conduct, and punished if they are 

 found guilty, they will make such efforts to 

 control themselves as will probably prove suc- 

 cessful." He further remarks : u Thus we see 

 that an individual may be medically insane, and 

 yet not a lunatic in a legal sense. His brain 

 is diseased, either temporarily or permanently ; 

 his mind is not in all respects normal in its 

 action and yet he is responsible for his acts. 

 Many of the insane are clearly irresponsible, 

 and their punishment is demanded only by the 

 imperative necessity which exists of securing 

 the safety of society by preventing their com- 

 mitting criminal acts. This should be done in 

 that way which experience shows is most con- 

 ducive to the accomplishment of the end in 

 view, even if it involves the taking of the life 

 of the lunatic." 



Mr. Edward B. Hill, a legal writer on the 

 subject, takes the broad ground that insanity 

 should not be regarded as a defense for crime 

 at all. He says : " But behind and beyond the 

 question of what proof of insanity should be 

 required lies the question which does not 

 seem to have occurred to many people whether 

 insanity should be a defense in capital cases at 



all. It may seem at first startling to put it as 

 a debatable matter, but that it is at least open 

 to argument a little consideration will show. 

 Capital punishment differs from other forms of 

 punishment, in that it is no part of its aim to 

 work any reformation in the criminal. The 

 two aims of punishment in general are, how- 

 ever, as prominent here as anywhere else. 

 These aims are: 1. To prevent repetition of 

 the offense by the criminal ; 2. To prevent | 

 commission of the offense by others. Both 

 kinds of punishment rely on the same means 

 of effecting the second object, which is the 

 dread of the punishment inflicted in a given 

 case ; but to effect the former object capital 

 punishment removes from the criminal all 

 power of ever acting at all, while milder forms 

 rely upon the dread of again incurring them 

 to induce the criminal to abandon his evU ways. 

 The theory of the two clearly is, that one who 

 commits the higher offenses is supposed to be so 

 depraved that nothing but his death can pro- 

 tect society from him, while in the other cases 

 it is supposed that less extreme measures will 

 suffice. Now, if these views are applied to tho 

 case of a lunatic, it will be seen that every ar- 

 gument that can be adduced to show the ne- 

 cessity for the death of a sane murderer has 

 tenfold more weight in the case of an insane 

 murderer. If it be hopeless that a sane mur- 

 derer should ever cease to be dangerous, it is 

 certainly so in the case of a lunatic. He is 

 possessed of an insane delusion, under the in- 

 fluence of which he has committed one murder 

 and may commit others, or (if we accept the 

 theory of ' emotional insanity ') he is liable, 

 under certain circumstances, to be so much ex- 

 cited as to be irresponsible, and in that state 

 to commit murder. If committed to an asylum, 

 he may so far improve as to be discharged as 

 cured, and yet he may have a recurrence of 

 the dementia, which may again impel him to a 

 performance of new crimes. Society is never 

 safe while he lives." This writer holds that 

 moral guilt has nothing to do with the ques- 

 tion, as it is the province of human law to 

 punish acts that are harmful to society with- 

 out regard to their moral aspects. On this 

 point he says : " It is of the essence of punish- 

 ment that it should have an ulterior end be- 

 yond the infliction of the penalty, and this ul- 

 terior end (as to the criminal) is that he, by 

 experiencing the penalty of his offense, should 

 be deterred from a repetition of the crime. 

 It would, in general, be manifestly vain to 

 hope for such an effect upon a lunatic, and 

 therefore such punishments are not applicable 

 to him. But in capital cases the only aim of 

 tho law is to destroy the offender, and remove 

 by his death a danger to society which can be 

 removed in no other way. The danger to so- 

 ciety from an insane murderer is, at least, as 

 great as from a sane murderer, and society has 

 as much need of protection in the one case as 

 in the other. If it is vain to hope that the 

 sane murderer, who is open to the effects of 



