T H E 
RESPONSIBILITY OF THE INSANE 
FOR THEIR CRIMINAL ACTS 
BY 
ISAAC RAY, M.D., 
OF PHILADELPHIA. 
Extracted from the Transactions of the 
INTERNATIONAL MEDICAL CONGRESS, 
Philadelphia, September, 1876. 
PHILADELPHIA; 
1877. PHILADELPHIA: 
COLLINS, PRINTER, 
703 Jayne Street. THE RESPONSIBILITY OF THE INSANE FOR THEIR 
CRIMINAL ACTS. 
How far insanity should be received in excuse for crime, is a question 
on which, as we all know, there still exists much diversity of opinion. 
Notwithstanding that the study of metaphysics has, of late years, engaged 
the attention of some of the profoundest thinkers of the time; notwith- 
standing that better opportunities for the study of insanity have been 
afforded by the modern practice of gathering its subjects into large 
receptacles for care and custody; and notwithstanding that cases for 
legal adjudication in the courts of justice have been increasing with re- 
markable rapidity, we are yet, apparently, as far as ever from well-settled 
conclusions respecting the exculpatory effects of mental disease. Among 
lawyers and among physicians; among men of science and culture as 
well as among men who pretend to neither; among men of extreme con- 
servatism as well as among those who are never satisfied with the 
present—in each and all of these classes, we find, on this subject, most 
diverse and even opposite views. This we may be inclined to regard as 
unwarrantable under the circumstances, proceeding as it does from neglect 
or careless use of the information at our disposal, yet, considering the part 
which passion, prejudice, and illogical reasoning, have in the formation 
of all opinions, it is neither strange nor extraordinary. 
In the history of English jurisprudence, insanity, as an excuse for 
crime, scarcely made its appearance until within a comparatively recent 
period. Towards the middle of the seventeenth century, it may have 
been recognized as such in some of its grosser forms. With that better 
understanding of mental phenomena, and that milder treatment of 
human infirmity, which began to be visible in the literature and science 
of a somewhat later period, insanity became an unquestionable element 
both of moral and of legal irresponsibility. Lord Hale undertook to 
define, with some show of precision, the exact extent of its influence upon 
the mental movements, and consequently of its effect in impairing the 
responsibility of its subjects. In this attempt he was guided, unques- 
tionably, by the best medical opinions of his time, as he found them in 
books, and in the discourse of eminent members of the medical profession. 
As the result of his inquiries, he came to the conclusion that insanity in 
its milder forms was not necessarily incompatible with responsibility for 
crime, while he freely admitted that in its severest manifestations it was 
an ample excuse for any criminal acts that might be committed under its 
influence. And ever since, his successors on the English bench have been 
seeking for some tests whereby these two grades of the disease might be 
distinguished, the one from the other, but always with very indifferent 
success; although, moved by that spirit of humanity which has been 
steadily infusing itself into the English law, their instructions in par- 4 
RAY, 
ticular cases have become more and more frequently correct. The tests 
which have been promulgated from time to time, not being- founded on 
any correct knowledge of insanity, have each and all proved unsatisfactory 
when scrutinized under the light of practical observation; but, notwith- 
standing, they are still put forth occasionally as the law of the land. 
The discredit into which the}r have fallen, has somewdiat, but not in a 
corresponding degree, widened the application of the plea of insanity in 
criminal cases, while it seems also to have given rise to some extent to 
the very opposite condition, the now prevalent distrust of the plea being 
supported by reasons which, though far from being new, have recently 
become endowed with a significance quite unwarranted by what we know 
of mental operations under the influence of disease. They are no less 
satisfactory, however, to that large class of people who having taken 
their opinions from one another, with but little knowledge of the subject 
itself, find it convenient to allege some plausible grounds for their belief. 
In the light derived from a good deal of intimate intercourse with the 
insane, and from the study of various authors who have written on the 
subject, I propose to examine the reasons now most often given for with- 
drawing that exemption from punishment which, in a greater or less 
degree, the insane have hitherto experienced. lam not so sanguine as 
to suppose that any efforts of this kind will turn the current of opinion 
now setting against these unfortunate victims of disease, but the solitary 
inquirer, sincerely seeking for the truth, should not be obliged to seek 
in vain. 
Much, if not most, of the present feeling on this subject may be traced 
to the legal profession, by which the plea of insanity has never been 
very cordially received. To lawyers, it seems like an intrusive element 
having no proper place in our legal system, but which, nevertheless, can- 
not be kept out of it. It implies, as we all know, a scientific fact to be 
examined, and its significance determined, by the rules and in the spirit 
of modern scientific investigation. This is a task completely outside of 
the domain of law. The lawyer has had no scientific training, and his 
knowledge of physical, and especially of medical, science, is only that 
which floats on the surface of the current thought. The more that is 
learned about insanity, the more difficult does lie find it, for lack of such 
training, to determine its exact relations to crime. Even when told that 
the insane, generally, know right from wrong, what is lawful and what 
is unlawful, and recognize the distinction between vice and virtue, he is 
still unable to see what element of crime is wanting in their criminal 
acts. He looks at them, not from the scientific, but from the legal, or, 
more properly speaking, the metaphysical, point of view. 
When a person commits a criminal act, knowing that crime is wrong 
and forbidden by the laws of God and man, incited to it, perhaps, by a 
rational motive—to gratify some passion, or to avenge some injury— 
evincing design and contrivance in the execution of it, the lawyer is con- 
strained to believe, as a strictly logical sequence, that such a person 
should be punished. In such an act, not a single ingredient of crime, as 
he has studied his books, is wanting. A person, he says, who imagines 
that another, sitting opposite to him at table, is making faces at him, is 
led to this belief by some morbid condition of the perceptive organs, for 
which he is not to blame, certainly, but which furnishes no excuse for 
shooting his imaginary foe, because he knowsI'as well as he ever did that 
killing or maiming another is wrong and unlawful. Besides, he acted 
deliberately, he had malice in his heart, and, as the old indictments used RESPONSIBILITY OF THE INSANE. 
5 
to have it, he was moved by the evil instigation of the devil. What then 
was wanting to render him responsible? Nothing, certainly, if we leave 
out of the account those springs of action, no less real and potent, which 
are introduced into the mental mechanism by disease, and ignore entirely 
some faculties of the mind, as necessary for determining and regulating 
the conduct as those which are recognized. lie can find* no excuse in 
his philosophy for one who slays the dearest objects of his affection, while 
admitting the wrong and deploring the necessity which obliges him to do 
it, simply because he has but a faint apprehension of the mental faculties 
chiefly concerned in the act, and scarcely any apprehension at all of how 
they are affected by disease. In short, of the two classes of faculties 
or manifestations that make up the mind, one, considered as the subject 
of disease, is altogether ignored, while the operation of the other under 
stress of disease is greatly misunderstood. 
And thus it is that in their theories respecting the responsibility of the 
insane, the lawyers, in their imperfect understanding of the nature and 
operations of the mind, commit two serious mistakes; one is that, where 
the mental affection is too obvious to be overlooked, they measure and 
define the scope of its influence in an arbitrary manner, unsupported 
entirely by the facts of psychological science ; while the other, as just inti- 
mated, consists in regarding the affectional faculties—the sentiments, emo- 
tions, and passions—as without any part in the play of disease, or with 
so little that it may be safely ignored. The first mistake may be wit- 
nessed in the rule propounded many years ago by Hoffbauer, a German 
jurist of great repute, that an insane person may be excused for any act 
prompted by a delusion, only as far as the act would have been excusable 
had the belief been a reality instead of a delusion. That is to say, if an 
insane person imagined that another was approaching him with intent 
to take his life, he might kill him, and be excused on the plea of insanity; 
but if he only imagined that this person was making faces at him, or 
had been following him from one place to another, he should not be so 
excused, because had the offence been real instead of imaginary, it would 
not have justified the killing. Never has there occurred a more re- 
markable instance of this mistake than that presented by the English 
law-lords, in 1843, on the occasion of the trial of McNaughton, for kill- 
ing the secretary of Sir Robert Peel. McNaughton was possessed by the 
delusion that he was pursued by enemies who, though unknown and un- 
seen, completely destroyed his peace. In fact, he was laboring under 
what is now called the mania of persecution. He had somehow connected 
Sir Robert Peel with this conspiracy, and concluded to shoot him; but 
mistook his secretary for him, and killed the latter instead of the prime 
minister. He was acquitted on the ground of insanity, but the public 
rebelled so strongly against the verdict that the matter was brought 
before Parliament, which instructed the law-judges, twelve in number, 
to confer together and decide what the rule should be in cases of this 
kind. They agreed upon the rule put forth by Hoftbauer, as above 
described, and accordingly it was announced authoritatively as the law 
of the land. 
We may well be astonished that a rule which is to decide the question 
of life or death for all coming time, should evince the grossest ignorance 
of the mental operations when affected by disease, and should be put 
forth, too, by a body of men who might be supposed to be more correctly 
informed. The rule, be it observed, implies mental disorder, and conse- 
quent irresponsibility, the extent of which, however, is limited in an 6 
RAY, 
arbitrary manner, with no reference at all to the pathological condition. 
It means that if a person imagine that enemies are waylaying him at 
every turn, he may not he accountable for that belief, because it has in- 
truded itself into his mind without any will of his own; but that, it being 
there, he is accountable, to some extent at least, for what he thinks and 
does about it. He is required to act respecting it very much as if be 
were perfectly sane—killing his fancied enemy if he apprehends from him 
a murderous assault, as a matter of self-defence, but resorting to the 
courts for redress, if his enemy has only assailed his reputation, or is 
preventing him from obtaining certain estates. That there is any ground 
for such limitation, no one can admit who has been much conversant with 
the insane. Indeed, the fallacy of the principle in question is obvious 
enough without any experience of this kind. Everybody knows that 
the man who imagines that his legs have turned to glass, goes about as 
usual, instead of keeping still and thus making his conduct consistent 
with his belief. 
How a principle so plainly and completely contradicted by the facts of 
science, should have obtained the currency that it has, is not easily ex- 
plained. In England, this, as well as some other mistakes on this subject, 
may, possibly, be attributed to a famous dictum of Locke, who said that 
madmen reasoned correctly from false premises. Locke knew as little 
about insanity as the English law-judges, otherwise be would have known 
—what the humblest servant in a hospital for the insane knows—that 
the insane may wander at every step of their reasoning, from premises 
to conclusion. It is no more than might have been expected, that one 
who insanely believes that his neighbor has been telling bad stories about 
him, should also believe himself justified in taking that neighbor’s life. 
The confusion of ideas, so flagrant and so common in discussions upon 
this subject, is well illustrated by the fact that the judge who presided 
at the trial of McHaughton, and who approved of his acquittal, subse- 
quently joined the other judges in declaring Hoffbauer’s rule to be the 
law of the land. Under this rule, McHaughton should have been con- 
victed, for, crazy as be was, he certainly apprehended no personal harm 
from Sir Robert Peel. Another instance of this confusion of thought 
was exhibited by one from whose multifarious knowledge and keen 
sagacity something better might have been expected. Lord Brougham 
said in Parliament, on one occasion, that he could conceive of u a person 
whom Deity might not deem accountable, but who might be perfectly 
accountable to human laws.” In other words, a mental disorder which 
would render a criminal act excusable in the eyes of God, might be 
entirely ignored in the judgments of men. In this statement Lord 
Brougham did not merely mean to declare—what nobody would deny 
that man, with his limited apprehension, might fail to discern mental 
disturbances that would be perfectly obvious to the eye of Omniscience ; 
be meant to assert the doctrine that a kind and degree of mental disorder, 
equally obvious to God and man, might lead one to excuse, and the other 
to punish, any criminal act that might be committed under its influence. 
How such a monstrous conclusion could be reached, except in defiance 
of all reason and religion, is not very obvious. We can account for it 
oidy on the supposition that, to the mind of the thorough-bred lawyer, it 
seemed imperative that the legal theory of guilt and responsibility should 
be upheld at all hazards. For certainly the act in question had in it all 
the elements of crime, and, of course, the doer of it must be punished, 
even though God undoubtedly were ready and willing to excuse him. RESPONSIBILITY OF THE INSANE. 
7 
The other mistake pervading the theory of the law respecting the 
responsibility of the insane, is to leave out of the account altogether the 
moral faculties of our nature—the sentiments, passions, and emotions. 
Here again is another of those inconsistencies which abound in the cur- 
rent reasonings on this subject. While every one admits that in these 
faculties are the great springs of human conduct, that they incite men to 
good or to evil, and furnish the motives and impulses by which they are 
governed, the idea that they, or rather the cerebral organism with which 
they are connected, may become diseased as well as the reflective facul- 
ties, is regarded as preposterous and of dangerous tendency. And yet we 
have the same proof of the one fact that we have of the other. The con- 
ditions of health and disease are precisely the same in both. Both are 
manifested by the same material organ, the brain, by far the larger portion 
of which, according to the most prevalent opinion, is given to the moral 
powers. Disease in any part of the brain must necessarily be followed 
by derangement of its appropriate function, so that it is in the order of 
nature that when a certain part of the brain is diseased, there will be 
some disorder of the affectional faculties. How this conclusion can be 
denied by any one who believes that disease of the brain may produce 
loss of memory, of judgment, of attention, and of mental application, is 
not very obvious. The only possible explanation of this curious incon- 
sistency is that disease of the moral faculties so often resembles manifes- 
tations of moral depravity, that it has been mistaken for the latter, 
especially by those who are not accustomed to regard this subject from a 
physiological point of view—their notions, as far as they imply any ex- 
ercise of thought, being founded solely on metaphysical considerations. 
And here we see the influence of that school of mental philosophy in 
which our predecessors were trained. We may safely say, I think, that 
had Herbert Spencer, and Bain, and Morell, lived and written in the 
days of John Locke, the popular notions respecting insanity would not 
now be precisely what they are. Under their teaching, the atfectional 
faculties would have held their rightful place in the mental economy, 
and would have played as necessary a part in its operations as that of 
the others in completing the grand result implied in a thinking, social, 
responsible being. Until they are regarded in this way, we need not 
expect much improvement in the law of insanity. The tests of respon- 
sibility will continue to be what they now are—confined exclusively to 
the action of the reflective powers. The question will continue to be, 
did he know right from wrong?—did he know that the act was con- 
trary to the laws of God and man?—did he evince forethought and 
contrivance in executing it?—ignoring the equally important questions, 
could he see the moral complexion of the act in its true colors?—had he 
the power, unaffected by disease, to pursue the right and avoid the 
wrong; to resist the natural impulses to wrong-doing by the superior 
force of conscience? Responsibility implies the integrity of alt the men- 
tal powers, moral as well as intellectual. If the mental movement is 
disturbed by the intrusion of a foreign element, it is immaterial at what 
precise point this element enters. To suppose otherwise, is as absurd as 
it would be to suppose that a delicate piece of mechanism could be 
deranged only at a certain point. 
As a consequence of this confusion of ideas, there has occurred a lack 
of uniformity in the practical application of the rules of law, which, 
considering the momentous issue involved, suggests no very comfortable 
reflections. The court may be satisfied of the irresponsibility of the 8 
RAY, 
prisoner, while, under a strict construction of the rules, he must be 
regarded as guilty; or the jury may prefer to found their verdict on 
the matters of fact disclosed in the evidence, rather than on the rules of 
law laid down by the court. And such must always be the case as long 
as the matter of insanity is treated as a question of law rather than as a 
question of fact, for here is the source of much of the error that has been 
committed on this subject. It is especially visible in the current doc- 
trine—as current nowr almost as it was in the time of Lord Hale—in 
regard to the exculpatory effect of what is called partial insanity. In 
some forms of disease, the patient does not seem to be entirely bereft of 
reason. On some subjects he converses with no lack of correctness or 
propriety; some business he transacts with his customary shrewdness; 
and many people meet him in the ordinary intercourse of life without 
suspecting any aberration of mind. It is not questioned that he still is, 
in some degree, a rational creature. And certainly it is not surprising 
that the world should be slow to admit such a mental condition as an 
absolute excuse for crime. If the person have been entirely rational for 
some purposes, or in some relations, why may not this circle of rationality 
have embraced the act for which he is tried? This is a fair question, 
undoubtedly, and is entitled to a respectful answer. What we complain 
of, is that, instead of being answered in the light of that knowledge of 
the workings of the insane mind which is derived from long, clinical 
observation of the disease, the question is supposed, in actual practice, 
to carry its answer with it. The logic runs thus; the act may have 
been the product of the reason left untouched by disease; therefore it 
teas. We insist that the fact should be proved, and we claim in the 
interest of true science, as well as of humanity, that the burden of proof 
lies with the side that denies the influence of the alleged disability. 
The existence of insanity in never so small degree being shown, it is for 
the other side to show that it had no part nor lot in bringing about the 
criminal act. How we do not deny that this is ever possible, but we do 
say that in most, if not all, cases, we are positively unable to fix the 
limits of the operation of disease, and to say that the act in question was 
not the offspring of disease. Ho man pretends to discern all the springs 
and turns of thought even in the rudest sane mind, and it certainly is no 
easier when the subject of observation is thrown out of its ordinary 
courses by a disturbing force. We know enough, however, on this sub- 
ject, to be convinced that, very often, thoughts apparently the most 
remote and disconnected from one another, are found, on further re- 
search, to be closely associated, and thus to lead to conduct otherwise 
most strange and mysterious. He must have been a superficial or care- 
less observer of insanity, who has not often discovered the most violent 
acts to be the outcome of a wild and tortuous succession of thoughts. 
To say‘that we see no logical connection between the mental condition 
as obviously manifested, and the criminal act, is simply a confession of 
ignorance, not a display of knowledge. 
In contending that in criminal prosecutions, when insanity is pleaded 
in defence, the burden of proof should fall upon the side that resists it, 
we are only following the rule most used in civil cases. There, the ex- 
istence of insanity having been shown, it is incumbent on the party 
wishing to establish the act in question, to prove that the person had 
recovered, or that the act was performed quite independently of, and was 
untainted by, disease. If a will be in dispute, and the testator be shown 
to have labored under some unquestionable delusion or weakness of mind, RESPONSIBILITY OF THE INSANE. 
9 
the presumption is that the will is rendered invalid b}T the mental affec- 
tion, and it is left for those who would establish it to prove the contrary, 
and the rule is the same in reference to contracts. It goes further even, 
for many a contract has been voided which displayed no indication of 
unsoundness, and which could not be traced to undue influence. There 
is not the slightest reason for this difference, in the nature of mental 
disease. Its agency in the occurrence of crime is as far beyond all our 
resources of detection, as it is in the making of a will or contract. If any 
difference is to he admitted, it should be the other way, inasmuch as an 
issue of life or death is a far more serious matter than one of property 
alone. 
There is nothing in the popular conception of insanity so common or 
with so little foundation in the nature of things, as the idea that the 
extent of the malign influence exerted by insanity on the mind, can he 
accurately measured by the external appearance and deportment as viewed 
by the casual observer. It is supposed that a person who can converse 
sensibly, behave properly, and transact business, cannot be so insane as 
to be irresponsible for his criminal acts. In every trial where insanity is 
pleaded in defence, this idea is generally the main stay of the prosecu- 
tion. A host of witnesses is summoned, who testify to perfect soundness 
of mind. One had frequently met the defendant, passed the time of day 
with him, and talked about the weather; another had employed him in 
some ordinary trust or duty ; another had had some business-transactions 
with him, selling him, perhaps, some little necessaries of life, or paying 
him a trifle of debt or interest; another had met him mingling with 
company at a watering-place, or at some social gathering; and these 
persons, one and all, declare that they witnessed nothing strange or un- 
natural in his looks, discourse, or deportment; and those who had busi- 
ness-dealings with him, and especially if they got a good bargain out of 
him, declare him to have been uncommonly shrewd. This evidence, 
though entirely negative, is none the less effective with most of those 
who hear it. Its force is scarcely weakened by the statement, which 
they may admit in general terras, that insanity often leaves some opera- 
tions of the mind untouched, and thus escapes the notice of the casual 
observer. And yet this trait of insanity would seem to be too common 
to be so disregarded in actual practice, for every hospital report, every 
newspaper that we take up, bears witness to its frequency. 
In the normal condition, nothing, under ordinary circumstances, is 
dearer to a man than his life. To preserve it is one of the most power- 
ful instincts of his nature, and, if in certain exigencies he willingly part 
with it, it is for the rational purpose of securing what seems to him a 
greater good, or of avoiding a present, real, unequivocal evil. And yet 
a large proportion of suicides are committed by persons urged by no ap- 
parent motives, in the possession of every outward circumstance calcu 
lated to make life desirable, and giving no indication whatever of mental 
disturbance. Up to the last moment, they may have transacted business, 
conversed sensibly with friends, and in all the relations of life conducted' 
themselves with their customary propriety. Yet who will venture to 
say that, notwithstanding all these apparent indications of good mental 
health, suicide, committed under the circumstances just mentioned, does 
not signify a kind and degree of insanity as destructive of moral free- 
dom and responsibility as the most demonstrative forms of the disease? 
It is also a well known fact that many of those persons who attempt un- 
successfully to commit suicide, while appearing to the casual observer 10 
EAY, 
entirely sane, subsequently have only the most dim and uncertain con- 
sciousness of the attempt. Now, there is no reason to doubt that homi- 
cide, and perhaps some other criminal acts, may be committed in a similar 
state of mind—evincing just as much coolness, deliberation, and contri- 
vance, and just as complete an absence of all the demonstrative signs of 
mental disease. It is not creditable to the intelligence of our time, that 
the apparent correctness and propriety of the person in the common 
relations of life, should be regarded as incompatible with the presence of 
insanity, or, at least, with any such insanity as should exempt him from 
responsibility. 
Unquestionably, during the present century, the tendency of public 
sentiment, following, no doubt, that of the clinical study of mental dis- 
eases, has been to enlarge the exculpatory effects of the latter. Now and 
then there have been signs of reaction, never stronger, probably, than at 
this present moment. To men whose opinions are formed by the current 
prejudices around them, rather than by any careful study of facts, it 
seems as if the plea of insanity had been making crime a little too easy, 
and that a wholesome check to this facility would be found in punishing 
the insane like other criminals. The argument by which this doctrine 
is generally supported is that many of the insane know right from wrong, 
that they are governed by motives, and may restrain their passions. The 
facts implied in the argument, we willingly admit, for nobody denies 
that many of the actions of many of the insane are rationally considered 
and rationally performed. Nobody denies that their conduct may be 
determined by the hope of reward or the fear of harm. One patient 
strives hard to obtain a privilege or a favor, while another is deterred 
from an assault upon a fellow-patient by remembering the threshing he 
got in a former encounter. The same man who believes that he is coming 
to want, and destroys himself and family to save them from misery, may 
refrain, if he please, from exposing his person, from soiling his clothes 
or from assaulting his neighbor. Why then should he not be punished 
for offences that are not inspired by his disease? To those much con- 
versant with the insane, the reasons against it are obvious and conclu- 
sive. The more that one learns of insanity, the more inscrutable are the 
movements of the mind affected by it, and the less confidence is felt in 
any attempt to discern exactly their connections, and to say which can 
be safely attributed to sanity and which to insanity. If this be so, under 
the daily and hourly observation of a skilful inquirer, what confidence 
can be placed in any positive conclusions founded on the testimony of 
those who have seen the accused at remote periods, who know nothing 
of insanity beyond what is learnt by the casual sight, now and then, of 
a person reputed to be crazy, and who are unable by lack of culture to 
convey to others the impressions thus made on their own minds. It any 
one could tell us—physician or philosopher, court, counsel, or jury—by 
what means, with the slightest approach to certainty, we might make 
the distinction between the working of the sane and that of the insane 
element, we would not object to the proposed rule. At any rate, let the 
burden of proof rest on the party which alleges that the criminal act 
was prompted not at all by the presence of disease. 
There is another reason for not punishing the insane, which, feeble as 
it may be to the common mind, is conclusive to the close observer of 
mental disease. Admitting, as we do, that much of the daily life of the 
insane shows no trace of disease, we are none the less sure that the 
presence of disease, however limited it may appear, is generally incom- RESPONSIBILITY OF THE INSANE. 
11 
patible with the most correct and vigorous exercise of all the faculties 
of the mind. It impairs the freedom of the will; it blunts the sense of 
right and wrong, of the good and true; it weakens the power of self- 
control, and diminishes the normal amount of restraint upon the ap- 
petites and passions. Ho one engaged in the service of a hospital can 
have failed to observe how fiercely the passions of the patients are excited 
by little provocations that would scarcely have ruffled their tempers 
before; how disproportioned to the offence is the measure of their reta- 
liation ; how grossly exaggerated are every feeling and impulse awakened 
by the ordinary experiences of life; how often native propriety of man- 
ner and delicacy of sentiment are replaced by a rude demeanor, and by 
a coarse, reckless disregard of the rights and feelings of others. Even 
when the criminal act seems most clearly beyond the range of the morbid 
influence, there is always reason to suspect, if not to positively believe, 
that it would not have been committed except for this enfeeblement of 
the power of self-control, or this blunting of the moral perceptions. 
Such being the fact, it shows how groundless is the doctrine, some- 
what countenanced just now, of a limited responsibility, as applied to 
the partially insane, according to which they are always to be punished 
for their criminal acts, though in a less degree than they would be if 
unquestionably sane. I need oidy allude to the doctrine, as its unsound- 
ness has been sufficiently shown by the views already expressed. A 
moment’s reflection must convince any one that no device of legislation 
could make the application of it in practice otherwise than absurd. The 
idea of a court or jury constructing a scale of insanity according to its 
severity, and graduating the measure of punishment thereby, is simply 
ridiculous, and would be rendered still more so by any attempt to apply 
it to a given case. 
Recently, we have seen the revival of a doctrine, never much in vogue, 
however, that the insane should be punished in order to deter them, by 
force of example, from breaking the laws. In support of this view, 
instances are related of insane persons, who, when talking over the 
criminal acts of others understood to be insane, have said to each other 
with much self-complacency, that, being insane, they would not be 
punished. In this belief, they would naturally use no self-control, and 
would feel free to break every law on the statute-book. Unquestionably 
the insane know very well that they may not be punished for their offences, 
as they know a great many other things. They are able to reason cor- 
rectly on the subject, as they do on many other subjects. The fact is not 
extraordinary, nor has it recently come to light, and, considered in con- 
nection with other facts, it implies-no responsibility. The truth is, that 
very few of the insane believe that they are insane; consequently, immu- 
nity from punishment does not present itself to them as an inducement 
to commit crime, nor to relax in the slightest degree their control over 
their passions. While they perceive well enough the abstract nature of 
crime, they cannot see it as applied to any particular act in their own 
cases. They are outside of the range of such application, and are a law 
to themselves. Some are urged by a necessity which they cannot resist, 
even knowing that they do wrong, and knowing the usual consequences. 
Some are prompted by strange suggestions: the voice of an unearthly 
presence, a terror that overrides every thought of consequences, or a spur 
of savage ferocity unmingled with the slightest sense of humanity. 
These people act without reference to law or gospel, under motives and 
impulses as remote from their natural dispositions and principles as the 12 
RAY, 
poles are asunder. The fact that persons reputed to be insane had suf- 
fered the usual penalty for their crimes, would have no more restraining 
influence than blows or threats in hushing the cries of a new-born infant. 
No human law can be more imperative than that higher law within him 
which impels many an insane man to some act of violence, and no con- 
sideration of justice or pity can come in to lighten the stroke provoked 
by the trivial offence of a neighbor. Indeed, this idea of the insane 
being deterred from criminal conduct by penal laws, is utterly destitute 
of foundation, and we challenge its advocates to produce a single instance 
in point. 
In order to make this idea practically efficient as a means of restraint, 
some steps would be required to give it an authoritative character, for 
unless the insane were somehow convinced of their responsibility, clearly 
and fully, of course it could have no restraining power. There would 
seem to be an insuperable difficulty in the way of making this idea im- 
mediately effective. If left to the courts, the most that could be expected 
would be now and then a decision declaring insanity to be no excuse for 
criminal acts. And supposing these occasions to become more and more 
frequent, until the rule should generally prevail, there still would be a 
considerable period of doubt and uncertainty as to the actual state of 
the law. The case could be properly met, if at all, only by an act of the 
legislature, and, in the present state of public sentiment, nothing is less 
likely to happen than an act making insanity, of whatever kind or de- 
gree, no excuse for crime. If, however, the legislature, without going 
to this extent, should undertake to specify what forms of the disease 
should or should not have this effect, as it has in some European countries, 
the result would be a lamentable failure, producing only confusion and 
distrust. Our notions of the actual limits within which the operation 
■of any form of insanity is confined, are too vague for such a purpose, and 
the imperfection of our nomenclature would prevent any approach to 
uniformity of meaning. And thus we stand; The legislature is indis- 
posed to act, and the rules adopted by the courts are irrelevant, inade- 
quate, and conflicting. Nor from this unsatisfactory condition of the 
law can we expect any relief, until the whole question of insanity shall 
be regarded as a question of fact, not of law, as at present; and, thus 
regarded, shall be taken altogether from the court, and, like other mat- 
ters of fact, be given to the jury, which would be governed by the weight 
of evidence and the individual convictions of the jurors. This course is 
virtually taken by juries, even now, and it is held up as a flagrant in- 
stance of our scandalous indulgence of crime, that many a verdict of 
“ not guilty, by reason of insanity,” is rendered, in spite of the instruc- 
tions of the court. 
I cannot leave the subject without adverting to an argument in favor 
of punishing the insane like others,on which unusual stress has been laid 
in some recent trials. It is represented that in our hospitals for the insane, 
the discipline is maintained by the use of rewards and punishments. 
This implies that the patients are deterred from wrong-doing by the 
understanding that it wall be followed by punishment, and the inference 
is drawn that the same motive would operate in the same way outside, 
as wTell as inside, of a hospital. If the statement on which this reason- 
ing is founded wTere strictly true, it should be taken in connection with 
the other w7ell-knowrn fact, that many of the insane are not deterred from 
violence or any other wrong by fear of any consequences whatever. 
Neither threats nor blows, nor death itself, can turn them from their chosen RESPONSIBILITY OF THE INSANE. 
course. Ami thus arises the difficult}’ which has already presented itself 
in another shape, that of determining to which of these two classes the 
accused may belong. By what kind of evidence are we to be convinced 
that the prisoner at the bar would have refrained from committing the 
offence for which he is on trial, had he believed that he would be 
punished ? 
But we are really not reduced to this dilemma. The idea that the 
inmates of our hospitals are punished for their delinquencies, is false— 
entirely without foundation in fact. They are deprived of a privilege or 
of an indulgence, which they have shown themselves unable to use with- 
out harm to themselves or others—an inability which may have been as 
much beyond their control as the usual manifestations of bodily suf- 
fering. Such deprivations, as well as rewards for good are 
used as a means of trying and strengthening the power of self-control— 
a power which in the insane is confessedly weak. Its exact degree of 
weakness or strength, no one much acquainted with them will undertake 
to measure; and who then can measure it for the purpose of apportioning 
the proper amount of judicial punishment? So far is it from being true 
that the patients in our hospitals are punished for any reason whatever, 
that the attendants are prohibited from returning a blow, or retaliating 
for insults or injuries, on pain of dismissal ; and yet, when provoked by 
serious assaults, they might often say with truth, “he knew better; he 
knew he was doing wrong; and a little summary punishment will help 
to make him do better in the future.” But if to punish the insane be 
good law in a court of justice, why should it not be in a hospital? We 
would have it distinctly understood that it is not good law in the latter, 
not because there is never a case in which punishment might prove a 
powerful help to improvement, but because no insight short of Omnis- 
cience can ever know for certain which are such cases. It may be urged, 
perhaps, that exception should be made of cases in which it is shown by 
satisfactory evidence that the accused had often been deterred from 
wrong-doing by the fear of punishment. The statement is quite too 
vague to serve as the ground of a general rule ; and besides, it is open to 
the objection of showing a negative rather than a positive state of facts. 
What a man refrains from doing under certain circumstances, is no safe 
measure of the extent of his self-control under other and very different 
circumstances. 
That there has been, of late years, much practical disregard of the rules 
of law, on the part of juries, must be admitted ; but the course of judicial 
decisions and verdicts within a very recent period, shows how grievously 
potent they still are. About two years ago, one Fordham, a patient in 
an asylum for the insane, murdered an attendant. It appeared in evi- 
dence that he was an epileptic, quarrelsome, and often violent; that he 
had quarrelled with the attendant, and had declared that he would have 
revenge. He was tried, and convicted of murder. The court, Mr. Jus- 
tice Henman, charged the jury that the mere fact that the prisoner was 
laboring under a delusion as to his treatment in the asylum, as no doubt 
he was, was not sufficient excuse in law. “If a man killed another,” 
said he, “ while under a delusion that he himself was about to be killed, 
and that he was acting in self-defence, he would not be punishable; but 
if a man did so for some supposed injury to his character or fortune, then 
he would be responsible.” Sentence of death was passed in the usual form, 
but the punishment was afterwards commuted to penal servitude for life. 
Some three or four years ago, Mr. Lutwidge, one of the members of the 14 
RAY, 
Board of Lunacy, while passing through a hospital which he wras visiting 
officially, was assaulted by a patient, who inflicted upon him a wound 
from which he soon died. The patient’s insanity was unquestioned, 
though he had not been supposed to he dangerous. In speaking of the 
case, in their annual report, the twenty-eighth, the Board say that the 
man “ was quite responsible for his actions.” Since this case occurred a 
man named Blamfield has been tried for murdering a fellow workman. 
The act was done suddenly, without apparent premeditation or provoca- 
tion. Blamfield had been a patient in a lunatic asylum, from which he 
had been discharged, uncured, some months before. The medical super- 
intendent of the hospital testified that, while in his charge, Blamfield 
had had a fear of punishment for misconduct, and had been governed 
by this feeling. He, therefore, considered him responsible for his acts. 
The man was convicted of murder, and sentenced to be hanged ; but his 
punishment was subsequently commuted. 
Such are the more prominent difficulties now in the way of making 
the plea of insanity in criminal cases as effective as it should be. The 
question may naturally be asked: 110wT can these difficulties be most 
readily removed, and the law be administered in conformity with the 
truths of science? It is scarcely within my purpose to speak upon this 
point, hut it may not come amiss to indicate very generally the direction 
from which reform may come. 
Let me say, in the first place, that if courts are to continue to measure 
the exculpatory effects of insanity by certain arbitrary tests, they are 
bound to avail themselves, as did Lord Hale, of all the existing medical 
knowledge on this subject, instead of repeating, one after another, rules 
and distinctions, of which the sole claims to respect consist in the fact of 
their having been uttered before, it is their duty to learn as much as 
possible of the nature of insanity from the only true source of knowledge 
—the practical observation of the insane. Legal knowledge is, for the 
most part, so technical that the decisions of the courts on most matters 
are received by the public in faith, nothing doubting ; but on this subject, 
the public will have an opinion of its own. The people who woilld shrink 
from the presumption of understanding a question of contingent remain- 
ders, or of eminent domain, may have little respect for any rule of law 
touching the responsibility of the insane. Have wTe not a right to ask 
the judges to make themselves acquainted with the nature of insanity by 
all the means within their reach, so that, instead of directing the jury by 
a servile repetition of something that others have said before them, with 
no other authority than the fact that it has been said, they shall present 
only the established facts of science, and.such considerations as are natu- 
rally suggested by them? Let it be remembered that we are dealing 
with a branch of medical jurisprudence, and, therefore, that the study 
here recommended belongs as well to the lawyer as to the physician. I 
do not suppose, indeed, that the soundest instructions would always be 
followed by a proper verdict, for juries are too fond of manifesting their 
independence by disregarding whatever may conflict with their own 
foregone conclusions. But it would remove somewhat the distrust now 
felt of judicial decisions, in which the advancement of knowledge is 
entirely ignored, and would prepare the way for a better and more 
satisfactory administration of justice. 
A still better step, as above intimated, would be that already taken 
by the courts of Hew Hampshire, whereby the question of responsibility RESPONSIBILITY OF THE INSANE. 
15 
is treated as a matter of fact, not of law, to be determined, like other 
matters of fact, by the jury. In the performance of this dutjq juries 
would be governed by the evidence, aided by the explanations of the ex- 
perts. This would not necessarily insure a correct verdict; for the evi- 
dence might be conflicting, the experts might disagree, and the jury might 
be governed more b}7 its prejudices than by the real merits of the case. 
It is doubtful, however, if anything better could be obtained under our 
mode of procedure, and this is not likely to be changed at present. Some 
improvement might follow from putting into the jury-box men of higher 
personal character, moral and intellectual, than such as are often found 
there. This improvement could be more easilj’ made, lam sorry to say, 
than could one equally if not more efficient, whereby the experts should 
prepare themselves more carefully for their duty, and should discharge 
it, divested of every unworthy bias.