300 



TJie Plea of Insanity. 



In seeking the true rnle of responsibility for insane criminals, some 

 weight should be given to the fact that the fear of punishment is as 

 great in the insane as in the sane, and has the same restraining in- 

 fluence. " In cases of low mental and moral culture," says an ap- 

 proved author, " the will, when on the brink of some forbidden act, 

 is swayed by two conflicting motxNQS, passion and /ear. Fear, in such 

 cases, is the only check on passion. If it is removed, passion has no 

 remaining barrier in its way. The State which declares that no ir- 

 repressible passion shall be punished evokes the irrepressible passion 

 it exempts. The necessary check on passion is fear; and punishment 

 must be applied by government with such even hand that fear will be 

 real and reasonable." The London Lancet says: "No doubt men- 

 tal disease is mysterious in its operations and manifestations. No 

 doubt weakened mental power and a low standard of moral sense leave 

 mankind an easier prey to violent passions or criminal desires. It is 

 equally true that such natures are moro easily controlled and influ- 

 enced by the fear of punishment. " 



If these authorities are right, and penal law is designed primarily 

 and mainly for the protection of society, it would seem to follow, neces- 

 sarily, that the rule of responsibility for insane criminals cannot prop- 

 erly or safely be relaxed. 



Thirdly, the Procedure: 



At present, both in England and in this country, generally, the ques- 

 tion of insanity is tried by the court and jury with the other issues in 

 the case. The court lays down the rule of legal responsibility, and 

 the Jury determine the fact of sanity or insanity. In doubtful cases 

 and, indeed, in most, if not all cases, expert testimony is submitted 

 for the consideration of the iury on the question of insanity. This 

 procedure is often embarrassing and unsatisfactory. It unites issues 

 unlike in their character, and in the kind of evidence apposite to 

 each. If the prisoner is insane at the time of his trial he should not 

 be tried at all while in such a state. He is incapable of pleading, of 

 employing counsel, or of conducting his defense. He is a person 

 " beside himself, and if he was in the same mental state when the act 

 charged as an offense was committed, it was not his act but the act of 

 another person, the person "beside himself." He is not amenable to 

 penal jurisdiction ; and tbo joinder of the two issues in one trial in- 

 volves a kind of judicial solecisn, which naturally, if not necessarily, 

 leads to confusion and embarrassment. 



If the question of insanity could first be determined by a competent 

 commission, or otherwise, the administration of criminal law in such 

 cases would be much more simple and satisfactory. 



