TJie Plea of Insanity. 



299 



rect theory is important in adjusting the true standard of responsi- 

 bility for insane criminals. If human government regards and treats 

 man simply as a member of society, and inflicts punishment for crime 

 as a protection to society, it is manifest that a stricter rule of respon- 

 sibility is allowable, nay, i7idispensable^ than would be the casesliould 

 it attempt to adjust its penalties by a moral scale, and make the good 

 of the offender's soul the purpose of the criminal code. The latter 

 theory, carried to its logical result, would require the abolition of 

 capital punishment ; and it would be an interesting inquiry whether 

 the opponents of capital punishment do not, as a rule, adopt an er- 

 roneous theory of government. What is the true theory? This ques- 

 tion is answered by ex-President Hopkins, one of the most profound 

 thinkers of the age. 



In a discourse delivered before the Legislature of Massachusetts dis- 

 cussing the relation of the divine and human government, respectively, 

 to the ends of individual and of social existence, he says "that human 

 governments regard man solely as a member of community ; whereas 

 it is chiefly as an individual that the government of God regards him. 



*'Human government is chiefly a system of restraint for the purpose 

 of protection. Its object is to give equal protection to all in using 

 their faculties as they please, provided they do not interfere with the 

 rights of others. Government, then, is not an end but ameans. Soci- 

 ety is the end, and government should be the agent of society, to 

 benefit man in his social condition." 



Dr. Elwell, in the paper from which we have quoted, thus forcibly 

 presents this view in its relation to the plea of insanity: "The theory 

 upon which government proceeds to punish crime by the infliction of 

 the death penalty, and upon which alone it can be justified, is that the 

 existence of the criminal is dangerous to society, and that society can 

 only be protected by his death. Human law in these cases has nothing 

 to do with the moral guilt of the offender, ft undertakes to protect 

 society, and punishes for that purpose only when the punishment is 

 death. If government attempts to reform the criminal, as is some- 

 times the case in crime less than capital, even then the primary object 

 is the good of society, and not that of the offender. Criminal law is 

 established by society for its own protection — not for the indulgence 

 of revenge on the one hand, nor of a tender sentimentality in favor of 

 the criminal on the other. Certainly, the community at large has 

 the same right to protect itself, even to the taking of the life of an 

 insane murderer, if need be, that an individual has when assailed 

 with murderous intent." 



