[Reprint from The Medioo-Legal Journal.] 
MADNESS AND CRIME* 
Bv Clark Bell, Esq., President of tlie Medico-Legal Society. 
The legal tests of responsibility of the insane, as applied 
under the English law, and in the American States, have 
given rise to grave discussion, which must interest and arouse 
every thoughtful legislator, in the inquiry now forced upon 
the public mind, which is intensified by the cases of Gould- 
stone and Cole in Great Britain, and of Guiteau, and similar 
cases here. 
The medical profession may be said to substantially agree 
as a body, that in homicides by the insane, a knowledge of 
the character of the act committed, and of its being in viola- 
tion of law, is not a safe and reliable test of the responsi- 
bility of the perpetrator. Indeed, medical men substan- 
tially concur that the insane, who are confessedly responsible 
for their acts, are, as a rule, able—not only to discriminate be- 
tween right and wrong—but to comprehend, and know, that 
their act is in violation of- law, and frequently understand its 
full nature and character and the legal consequences. 
The legal profession has been trained to accept legal de- 
cisions, precedents, and the settled authorities, in a long line 
of cases, and to inquire and understand what the law really 
is, rather than to investigate its justice, its philosophy, or 
the reasons and principles upon which it is based. 
* Read before the Medico-Legal Society of New York, September 24,1884. MADNESS AND CHIME. 
The inquiry of the legal and judicial mind is, what is the 
lex-scripta; and so far as the judiciary are concerned they 
are undoubtedly bound by it, and have no discretion but 
to enforce by their decisions its provisions, as settled by the 
courts, in the current of decisions. 
Both professions, and the public, are now face to face 
with an acknowledged vice, in the existing laws of all Eng- 
lish speaking countries, as to the true tests of legal responsi- 
bility in cases of insanity. 
We should investigate this question with courage, without 
prejudice, and in the light which science has brought to the 
solution, of much that was misunderstood and unknown, 
when the judges gave their answers in the celebrated case 
of McNaugliten, in 1843, to the questions propounded by 
the House of Lords after the acquittal of McNaugliten. 
That action, which has controlled the bench on both sides 
the Atlantic, since that era, should be examined now by 
the law-making power, to see if it rests upon sound princi- 
ples, and it should be discussed outside of the environment 
of the judges of that age, who formulated the dogma, that 
knowledge of right and wrong, and ability to discriminate 
between right and wrong, with sufficient power of intellect 
to enable the accused to know and understand the nature 
and consequences of the act at law, was the true test of re- 
sponsibility in such cases. 
The most careful, conscientious, humane and discreet 
alienists, now tell us that the insane do know that the act is 
wrong, often fully understand its nature and consequences, 
and, as a rule, can discriminate between right and wrong, in 
acts, which they commit under the force of insane delusions, 
which they are not able to resist, and which affect and often, MADNESS AND CRIME. 
times control their action, and they insist that these truths 
must be considered in determining criminal responsibility 
in all these cases. 
The thoughtful men of the bar must acknowledge this to 
be a fact. They must concede that the rule of law, as inter- 
preted by the English and American courts in many cases, 
is misleading and faulty, and that the whole subject demands 
the careful revision of the lawmakers, and that at an early 
day. 
The case of Gouldstone, who was tried and convicted at 
the September Term of the Central Criminal Court of Lon- 
don, 1883, before Mr. Justice Day, for the murder of his five 
children, illustrates fully the state of the present law in 
Great Britain, and the need of a speedy change in legal pro- 
cedure in such cases there. 
That Gouldstone was insane can not be doubted, and that 
fact has been found since the conviction, upon a formal in- 
quiry directed to be made by Sir William Harcourt, the 
English Home Secretary, by Dr. Orange and Dr. Clarke, 
eminent alienists, who reported him to be insane, upon which 
report he was reprieved by the government. 
Gouldstone drowned three of the children in the cistern 
and broke the skulls of the remaining two with a hammer 
He said to }iis wife : “ All the children are dead now. I shall 
be hung and you will be single.” When the policeman ar- 
rested him, he said : “ I have done it. Now I am happy and 
ready for the rope.” On his way to the station he said to 
the officer: “I thought of buying a revolver to do it with, 
but altered my mind, as I thought it would make too much 
noise.” 
“ I thought it was getting too hot with five' kids within MADNESS AND CRIME. 
three and-a-half years, and I thought it was time to put a 
stop to it.” 
Mr. Poland, for the Crown, claimed, and truthfully, that 
Gouldstone knew thoroughly well what he was about, that 
he was fully conscious at the time that he was committing a 
crime against the law of the land, that he knew the na- 
ture and quality of the act he was committing, and that it 
was a crime, and he claimed that Gouldstone was responsible 
under the law for the act. 
The prisoner’s father swore that the prisoner’s mother 
was deranged, and had been for ; had attempted sui- 
cide twice ; that about eight weeks before the trial she had 
threatened to take her own life ; that her sister was also de- 
ranged ; that William Gouldstone, his second cousin, died 
n a madhouse, and that his father’s sister wore a strait 
jacket for some years. 
Charles Gouldstone, cousin of prisoner’s father, deposed 
that his son had been confined in a lunatic asylum sixteen 
months, since 1880. 
Dr. Sunderland, who attended prisoner’s mother and her 
sister, described the form of insanity under which both suf- 
fered as despondency, or melancholia. 
Dr. Geo. H. Savage, an eminent English alienist, principal 
physician at Bethlem Hospital for the Insane, who had ex- 
amined the prisoner, pronounced him of unsound mind at 
the time the act was committed. 
Dr. Savage’s evidence as to his conclusions, based upon 
the evidence of insanity on paternal and maternal side, was 
excluded by the court, holding that a doctor was entitled to 
give his medical evidence, but not to draw a conclusion, 
which was the province of the jury. MADNESS AND CRIME. 
Dr. Savage swore that insanity, if proved on maternal 
side, created a tendency to insanity in the prisoner, which 
would be greatly increased if insanity was proved even in a 
remote degree on paternal side, citing the case of the last 
patient at Betlilem Hospital who died—a woman who had 
killed her whole family—Dr. Savage, on cross-examination, 
swore that he had examined the prisoner only about a quarter 
or half an hour; that the prisoner’s conversation did not 
indicate insanity; that he could not certify him to be a 
lunatic from what he had seen; and that Gouldstone spoke 
rationally as to the crime and understood its penalty. 
That when he had said he thought the prisoner of unsound 
mind he based his opinion upon his examination and from 
what he heard in court, that he thought the prisoner knew 
the penalty of what he was doing at the time, and that 
he had killed the children, knowing the penalty for so doing 
was death. 
Judge Day charged the jury, “ that the matter of law was 
for the court, and the jury were bound to take its instruc- 
tions with regard to the law, in doing which they would be 
incurring no responsibility upon themselves.” 
“ That as matter of law if the prisoner, at the time he 
killed the children, knew the nature and quality of the act 
he was committing, and knew that he was doing wrong, 
then he was guilty of wilful murder.” 
“ That the only question for them to determine was whether 
the prisoner knew the nature and quality of the act he was 
committing, and whether he knew it was wrong and in viola- 
tion of law.” 
The Judge, under the act of Parliament passed August, 
1883, charged the jury : “That if they found the prisoner MADNESS AND CRIME. 
was insane at the time he committed the act, they would 
have to return a special verdict that he committed the act,, 
but was insane at the time.” 
“ If on the other hand they found that he knew the nature 
and quality of the act when he killed his children, and that 
he was not of unsound mind, they must find him guilty, and 
the new act of Parliament would not affect their verdict. 
The verdict was “ guilty of wilful murder.” 
This case excited great interest in England. Dr. Savage, 
in response to public assaults, published the following cards. 
To the Editor of The Times: 
Sir,—I feel it my duty to write shortly about the case of William Gould- 
stone, the murderer of his five children. Justice demands further investi- 
gation of the case. The facts are plain. A young man of 26, who had been 
a well-behaved and industrious man, odd in some of his ways, is seized with 
fear of impending ruin to himself and family, and kills them to send them 
to heaven. The act is an insane one, and I think little more should have 
been needed to prove it to be such, but it was proved that his mother and 
aunt both suffered from precisely similar fears of ruin, and though the 
Judge ridiculed the importance of a second cousin on his father’s side being 
insane, I would repeat emphatically that there being an insane taint which 
could have been shown to exist in several second cousins and others on the 
father’s side, was of great importance. A great deal was made of my state- 
ment that I could not certify to his insanity from my personal interview of 
15 to 30 minutes. It does not follow that the man may not have been in- 
sane at the time the act was committed. 
There is the feeling abroad that a man if insane and irresponsible is al- 
ways so, whereas the most insane people often are collected enough during 
the gneater part of their lives. The poor man Gouldstone is, to my mind, 
a typical case of insanity associated with insane parentage. He had done 
his work, which was purely mechanical, well, but he had no power to resist, 
and the act he perpetrated depended on an insane feeling of misery. I have 
no doubt he would have sooner or later developed delusions 
The medical officer to the House of Detention told me he considered him 
to be suffering from melancholia. 
I trust this prisoner will not be allowed to be hanged. I may say that I 
am not one who is in the habit of defending criminals on the plea of in- 
sanity. 
I am, yours truly, 
Geo. H. Savage, M.D., 
Physician Bethlem Hospital. 
September 15, 1883. MADNESS AND CRIME. 
To the Editob of The Daily Telegraph: 
Sib,—I feel bound to take notice of the letters written to you by “ One of 
the Jury ” in this case, as there seems to be great danger that the prisoner 
will suffer through misunderstanding of my opinion. The skillful cross- 
examination of Mr. Poland gave me no opportunity of representing my own 
opinion on the man’s sanity. I was forced to own that in a short interview, 
from the facts seen by myself, I could not have signed a certificate of in- 
sanity. I doubt not but that if I had expressed a willingness to sign one 
that the haste of the proceeding would have been used as an argument 
against its value. 
I did say, however, that, taking my examination with the history of the 
man and the crime, I had no doubt that he was of unsound mind. The 
Judge opposed strongly attempts to get my opinion, believing the common 
sense of a jury to be the best judge of sanity. This is all very well if the 
facts are explained by one understanding their value, and not otherwise. 
That the patient knew he had killed his children, and that he knew he 
might be hanged, I could not deny, but knowledge of this kind does not 
exclude insanity. 
I have patients of the most insanely dangerous class here who have said 
the same things which Gouldstone said, and who know as much as he does. 
Yet they are mad. William Gouldstone ought not to suffer without a care- 
ful, independent investigation of his history and the history of his crime, 
one not confined to an examination of twenty minutes or half an hour. 
I am, yours truly, 
Geo. H. Savage. 
Bethlem Hospital, Sept. 17. 
The Foreman of the jury published a card in the Daily 
Telegraph in which he stated: “ The judge presiding at the 
Gouldstone trial told us (the jury) that the law regarding in- 
sanity was this : 
“ That if a person was proved to be of sound mind up to 
the time of committing a certain deed ; if he kneiu the nature 
of that deed and the penalty it involved ; and if after this he 
still appeared of sound mind, we are bound, according to this 
law, to say such a person was not insane.” The report of 
the trial I take from the Times, and it is doubtless more 
exact as to the charge of the judge than the statement of the 
foreman of the jury in his published card. 
Mr. William Tallack, of the London Howard Association, MADNESS AND CRIME. 
published a card in the Times, from which we make the 
following extract : 
To the Editor of The Times : 
****** 
Sir,—There is one department of the law, that affecting homicidal crime, 
•where a peculiar obscurity, or rather conflict, exists, at least in many in- 
stances ; where the letter of the law, though plain, is in clear collision with 
the consensus of the best scientific medical observation also, and therefore 
with equity and justice. The case of the Walthamstow murderer, now 
under sentence of death, affords an illustration. It was unmistakable, 
from the evidence at the trial, and, indeed, from the prisoner’s own admis- 
sion, that he well knew the nature of the act he was committing. Hence, 
too, that act is, plainly and legally, “wilful murder.” But, from the testi- 
mony of the physician of Bethlem Hospital and others, it is similarly ob- 
vious that, notwithstanding this, the condition of the man’s mind was, to 
say the least of it, very abnormal and doubtful. 
And in so far as this may be the case, it is appropriate to bear in mind 
the verjr important resolution unanimously adopted at the annual meeting 
of the Association of Medical Officers of Asylums and Hospitals for the In- 
sane, held at the Eoyal College of Physicians, London, on July 14, 1864, as 
follows :— 
“ That so much of the legal test of the mental condition of an alleged 
criminal lunatic as renders him a responsible agent, because he knows the 
difference between right and wrong, is inconsistent with the fact, well- 
known to every member of this meeting, that the power of distinguishing 
between right and wrong exists very frequently among those who are un- 
doubtedly insane and is often associated with dangerous and uncontrollable 
delusions.” 
Such a resolution as the above by such a body is a virtual condemnation 
of the law by the responsible official exponents of modern medical science. 
And this, taken in connection with a series of Home Office precedents for 
interposition, constitutes a valid reason for expecting the Home Secretary, 
in such a case as the present one, to seriously reconsider the sentence. 
Yours truly, 
William Tallack. 
Howard Association, London, Sept. 17. 
Dr. N. Wood, St. Luke’s Hospital, published a card in the 
Times, from which I make the following extract: 
To the Editor of The Times: 
Sie,—In any other case than murder an irrational act is accepted as MADNESS AND CRIME. 
ground at least for suspicion that the mind of the perpetrator is disordered; 
hut in cases of murder no account is taken of the unreason of the act. The 
fact that a man of good character, under the influence of a cause, or causes, 
held to be utterly inadequate by persons of sound mind, suddenly commits 
an act inconsistent with all his previous history, is in any other event than 
the perpetration of murder regarded as a very serious symptom, arousing 
the most anxious fears on the part of his friends, especially if he has insane 
relations ; but the law ignores all this, and asserts that a man is respons- 
ible for his actions if he knows the nature and quality of the act he com- 
mits, and that it is forbidden by law. This standard of responsibility is 
directly opposed to the established judgment of every person who has had 
any experience of the disordered mind. I sympathize with Dr. Savage as 
to his sense of duty as a recognized authority in such a matter, impelling 
him to make a public appeal for some further investigation of the circum- 
stances. I agree with him that the act of William Gouldstone, taking into 
account the whole history, was an insane act. and none the less so because 
on every other subject his conduct and conversation was rational. 
I am, Sir, your obedient servant, 
W. Wood, M.D., 
Physician to St. Luke’s Hospital. 
No. 99 Harley street, Sept. 17. 
Dr. Savage publishes in tlie January number, 1884, of the 
Journal of Mental Science, of which he is one of the editors, 
over his own name, a review of the case, from which I make 
the following quotations : 
I would, then, sum up the case in this way. A man with strong direct 
inheritance of insanity is reduced by bad feeding, pain, and worry, to a 
condition of misery that was diseased. It was melancholia out of relation 
to its causes and its end. The whole thing was—as is general in mental 
disorder—a morbid development, not a devilish afflatus. 
As to my examination in Court, I can only say that the skill of the prose- 
cuting counsel and the ruling of the Judge made my opinion appear to be 
that the prisoner was responsible. I could only say “yes ” when asked if 
the man knew he had killed—I objected to the term “ murdered his 
children, and again I could only say “yes” when asked if he knew the 
punishment he had incurred. It would have been folly, as well as false, 
for me to have said otherwise. 
But I distinctly added that I believed him to be insane at the time the 
act was committed. One most important point was made out of the fact 
that I said that I could not certify from facts observed by myself in my in- 
terview of from twenty minutes to half-an-hour. 
I have been blamed for this, but I would defend myself by saying that MADNESS AND CRIME. 
counsel strictly bound me down to answer simply and solely as to facts ob- 
served by myself. Some say that, as a physician, I was bound to take the 
history and the antecedent facts as part of the facts observed. This I must 
demur to, as in the signing of a certificate the facts observed by myself 
must be quite independent of information gained from others. I own this 
is often a foolish necessity of the law, but at present it exists. I did add 
that with the history and from the facts I believed him to be insane, but I 
was told by the Judge that this was not for me, but for the jury to decide. 
And the Judge’s ruling quite outweighted my opinion. 
Surely the jury have a right to be instructed by experts as well as by 
lawyers. Insanity and its various forms are not less difficult to understand 
than forms of law. 
It would have been better that there should have been a contest of medi- 
cal opinion, so that the jury should have heard the points for and against 
the insanity, rather than they should be wholly uninformed. It may seem 
strange that medical opinions should differ as they are seen to do in con- 
tested trials ; but I for one do not see in this difference of opinion untruth 
or dishonor. Medical knowledge is not as yet finite, and there are at least 
two sides to a shield. 
I would suggest that, in any criminal case in which the medical officer of 
the House of Detention states any doubt about the sanity of a prisoner, the 
trial should not take place till several months’ observation have transpired ; 
thus a great deal of heart-burning would be saved, and some lunatics would 
not be tried as criminals. 
Lastly, as to the test of sanity. 
I fear the want of any exact knowledge of the causes of insanity must for 
very long leave us without any definition of the condition. 
The lawyer will say, “ Let common sense decide who are responsible, and 
what is to be meant by responsibility.” 
I know the most important safeguards are needed by society, so that the 
weak should be kept from becoming wicked, but at the same time 1 must 
protest against persons being punished for what they cannot help. 
First, I would do away with all definitions of responsibility, and let each 
case be tried on its own merits. For just as a man is sane or insane in re- 
lation to his past history and to his surroundings, and not according to any 
standard that can be set up, so a man is responsible or not for his acts, ac- 
cording as they are the natural outcome of his uncurbed passions or are due 
to diseased conditions. 
I grant that harm has been done in several ways by the medical expert, 
in too often and too indiscriminately dragging in such rare explanations as 
insane impulses alone. 
Again, insanity is generally looked upon as like other acute diseases, 
which can be as readily diagnosed as fevers or heart disease. 
It will not be understood in its criminal relationship till it is looked upon 
merely as the morbid life-growth from the diseased germ. The whole life 
has tended to irregularity, and in many, direct insane inheritance must be 
admitted to play a chief part in its production. MADNESS AND CRIME. 
The subject is unsatisfactory, as may at once be seen from the different 
ways it is viewed by the public. 
The suicide is always considered to be insane. 
The testator, again, is practically considered sane, but it may be shown 
that he was insane without incurring odium. 
But if a criminal is defended as insane, his defender runs a great chance 
of being looked at as criminal also. 
Finally, are we to be bound by any definitions in giving our opinion ? I 
should say “ No.” "VVe have got rid of “ delusions ” as a necessary part of 
insanity. It is now, moreover, admitted that a “knowledge of right and 
wrong ” is not necessary, and the question of loss of self-control and im- 
pulses is so delicate a one as to make it dangerous for an expert to attach 
much weight to it in giving evidence. 
I am free to admit the fault lies in great part in our defective knowledge, 
but is also partly due to the habits of the law in exacting definitions from 
medical witnesses. 
We can no more define insanity than we can by definition give an impres- 
sion of a rainbow or a landscape. 
Geo. H. Savage. 
The Case of James Cole.—He was indicted for the mur- 
der of his own child, aged three years and eight months, in 
August, 1883. The trial was held in the Central Criminal 
Court of London, October 18tli, 1883, before Mr. Justice 
Denman. 
I give the following account of that trial, taken from the 
Journal of Mental Science for January, 1884: 
James Cole, 37, laborer, was indicted for the wilful murder of Thomas 
Cole. 
In August he was living with his wife at Croydon. Their two children, 
Richard, aged 14, and Thomas, three years eight months, also lived with 
them. Prisoner had been out of work for some time. On the evening of 
the 18th he took the child Thomas by the legs and knocked its head against 
the floor and walls. As the prisoner ran away he said to a man he met—“ I 
have murdered my child.” 
It was elicited from the boy Richard that upon the night in question, the 
prisoner complained that his wife had hidden people under the floor and in 
the cupboard to try to poison him. He was jealous of his wife, but no 
ground for this suspicion appeared. 
The plea of insanity was set up. 
The surgeon and chief warder of Clerkenwell House of Detention gave evi- 
dence that the prisoner had displayed no symptoms of insanity, but had con- MADNESS AND CEIME. 
ducted himself in accordance with the prison regulations. On one occasion 
he became violent, but it was stated that it did not arise from unsoundness 
of mind. 
For the defense, a brother of the prisoner was examined, and stated that 
some members of the family had been subject to fits. 
Dr. Jackson, an alderman of Croydon, said he was quite certain that he 
was a typical lunatic, with dangerous delusions. In cross-examination, wit- 
ness said the prisoner seemed to understand the questions put to him, and 
gave perfectly rational answers. He told him that he thought he was being 
poisoned, that his wife had set men on to him, that he used to shriek 
out and wake up at night thinking that people were murdering him. The 
prisoner acknowledged that he drank occasionally, and that he had been 
many times in prison for violence. The prisoner said he found a little drink 
made him lose his senses. The prisoner knew perfectly well that he was on 
his trial for murder. When asked how he could have treated his child so 
cruelly, he made no answer. In re-examination, Dr. Jackson said he be- 
lieved the prisoner was in such a state of mind that no parish doctor ought 
to allow him to be at large, as he was dangerous. 
Mr. Geoghegan, in defence, argued that there had been no motive for the 
commission of the crime, but that there were strong antecedent probabilities 
that the prisoner was so unsound in his mind at the time that he did not 
know the nature and quality of the act he was committing. 
Mr. Poland said that the prisoner’s belief that attempts had been made to 
poison him would not be sufficient for any medical man to certify that he 
was insane, and thus necessitate his confinement in an asylum. It was for 
the jury to say whether the prisoner was a violent drunken man or an insane 
person fit for Broadmoor. 
Mr. Justice Denman said it was an appalling case. As to the plea of in- 
sanity, the law as laid down by the House of Lords was, that every man was 
supposed to be responsible for his acts until the contrary was proved, and 
it must be shown that he was suffering from such a state of mental disease 
as not to know the nature and quality of the act he was committing, or that 
it was wrong. The Judge referred to the new Act regarding the treatment 
of persons alleged to be insane, and said that he observed that last session a 
learned colleague expressed dissatisfaction with the new enactment, in 
which, however, he was not inclined to disagree, the new Act not altering 
the law as to insanity as it previously stood, but only making a difference as 
to the formal verdict. 
The jury found the prisoner Guilty. 
The Judge, in sentencing the prisoner to death, said the learned counsel 
had attempted to make out that he was not responsible. The attempt had 
failed, and he must express his opinion that, according to the law of Eng- 
land, it had rightly failed. “Although it was, I think, established in evi- 
dence that you had been suffering from delusions, I cannot entertain a doubt 
that on the occasion on which you violently caused the death of your child, MADNESS AND CRIME. 
yon know you were doing wrong, and knew that you acted contrary to the 
law of this country, and that you did it under the influence of passion, 
which had got possession of your mind from want of sufficient control, the 
result being that the poor child came by a sudden and savage death.” 
The Home Secretary, Sir Wm. Harcourt, ordered a med- 
ical examination also in the case of Cole, and Dr. Orange 
and Dr. Glover, who conducted it, pronounced him unques- 
tionably insane, and he was reprieved. 
Dr. D. Hack Tuke, in a forcible criticism of both these 
cases of Gouldstone and Cole, in the January number of 1884 
of the Journal of Mental Science, of which he is editor, says 
over his own name : 
It would be difficult indeed to conceive any circumstances more calcu- 
lated to bring English Criminal Law into contempt than the results of the 
trials of Gouldstone and Cole for wilful murder. Our only consolation is 
that such pitiful exhibitions of the working of our present judicial ma- 
chinery, in cases in which the plea of insanity is set up, may lead to some 
practical reform therein. Had any commentary been desired on the neces- 
sity of carrying out the Resolution * passed at the recent Annual Meeting 
of our Association, under the presidency of Dr Orange, and again at the 
October meeting of the Metropolitan Branch of the British Medical Associa- 
tion, such commentary, written in letters of blood, has indeed been sup- 
plied by the occurrence of these two trials in rapid succession. 
The great object of this Resolution is to secure a full and deliberate ex- 
amination of the accused before, instead of after his trial, by competent 
medical men. In the cases of Gouldstone and Cole, the result to them, it 
is true, would have been the same, but with how much greater propriety, 
dignity, and economy ! We should have been spared the spectacle of 
judges solemnly condemning to death, and clearly indicating it to be their 
opinion that it was a just death, men who were lunatics. * * * * Had 
*“ That prisoners suspected of being mentally deranged should he examined by com- 
petent medical men as soon after the commission of the crime with which they are 
charged as possible, and that the examination should be provided for by the Treasury, in 
a manner similar to that in which counsel for the prosecution is provided. It is suggested 
that the examiners should be the medical officer of the prison, the medical officer of the 
County Asylum or Hospital for the Insane in the neighborhood, and a medical practitioner 
of standing in the town where the prison is situated ; that the three medical men shall, 
after consulting together, draw up a joint report, to be given to the prosecuting counsel, the 
cost being borne by the public purse, inasmuch as it is useless to tell an insane man that 
the burdeu of proving himself insane lies upon himself.” (See Journal of Mental Science. 
Oct., 1883, p. 451). MADNESS AND CHIME. 
the deliberate examination we urge been made in the case of Gouldstone, 
instead of one of some twenty minutes at the eleventh hour (the deed was 
committed at least five months before), the man’s mental condition could 
have been carefully tested without haste ; and in the case of Cole, the same 
course would have exposed his insane condition for years previously, and 
all the facts bearing upon it would have been procured at leisure. Impor- 
tant in such a case, also, is the circumstance that his wife could not give 
evidence in court, while her intimate knowledge of his history would have 
been of the highest value to a medical commission. Again, the law re- 
quires a man in such instances to prove himself a lunatic ; but is not this a 
mockery of justice? How can a poor prisoner afford to pay? Counsel 
may, indeed, be assigned to defend the prisoner too poor to pay, but this is 
at the last moment, and what possible chance has he of doing justice to his 
client? None ; for it is then too late to make a skilled inquiry into and 
study of the facts of most value in the determination of the prisoner’s in- 
sanity. The effect of this Resolution would be to prevent a repetition of 
circumstances that make the interference of the Home Secretary impera- 
tive ; for, we repeat, it cannot be other than prejudicial to the respect that 
we should always wish to see entertained for courts of law, to go on con- 
tinually convicting and sentencing lunatics to the gallows, and then re- 
prieving them—a game which may be all very well for cats and mice, but is 
scarcely worthy of being engaged in by those who uphold and those who 
break the law. 
Nor are these trials less remarkable as commentaries upon the proper 
mode of understanding and interpreting the legal test of insanity to which, 
truth to say, we are almost weary of referring. As those who have .read 
Mr. Justice Stephen’s work on Criminal Law, reviewed in this Journal in 
July last, are well aware, he reads between the lines of the dicta of the 
Judges of 1843, and charms his psychological readers with the conclusion 
that the knowledge of right and wrong does net merely refer to the law of 
the land, but involves the question whether the accused was able to judge of 
the moral character of the act at the time he committed it, not merely in an 
abstract sense, but for himself, under the special circumstances of his own 
delusion or loss of control. 
So liberal a construction of the test seemed to open the way to a sort of 
compromise between medical and legal opinions. Now, what from this point 
of view is so noteworthy, is that neither of the Judges who presided over 
these trials (Mr. Justice Day and Mr. Justice Denman) appear to have had 
the faintest idea of such an interpretation of the terms. On the contrary, 
they obviously understood them in the baldest, most literal manner pos- 
sible, but not otherwise, we are bound to say, than we supposed that they 
would understand them. Thus, Mr. Justice Denman, in addressing Cole, 
told him he could not doubt that he knew he was doing wrong. “You 
knew,” he added, by way of explanation, “ that you acted contrary to the 
law of this country.” Whatever loss of control there might be was due to 
“passion.” His lordship did not, with Sir James Stephen, say that any MADNESS AND CRIME. 
one would fall within the description of not knowing he was doing wrong 
<• who was deprived by disease affecting the mind of the power of passing a 
rational judgment on the moral character of the act which he meant to do ” 
(“Criminal Law,” vol. ii., p. 163). Nor did he tell the jury that the law 
when properly construed allows that “ a man who, by reason of mental dis- 
ease, is prevented from controlling his own conduct, is not responsible for what he 
does” (p. 167) ; nor yet that if a man’s succession of insane thoughts is so 
rapid as to confuse him and render him unequal to the effort of calm sus- 
tained thought, “he cannot be said to knoio, or have a capacity of knowing, 
that the act which he proposes to do is wrong ” (Op. cit ). That such is, after 
all, the proper way of understanding the dicta of the Judges was equally 
foreign to the mind of Air. Justice Day. The Judges succeeded also in con- 
veying to the juries the impression that they must take the meaning of the 
terms in question in the sense in which they have been hitherto understood. 
All we have to say on this aspect of the matter is, that either official sanc- 
tion must be given to the interpretation of Air. Justice Stephen, or the words 
themselves must be so altered as to make their meaning plain to jurymen, 
and not only to them but to the Judges themselves. The difficulty, how- 
ever, presents itself that, not only do most Judges lay down the law in the 
old-fashioned sense, but they do not concfal their sympathy with this in- 
terpretation, and they would regard it as a subterfuge were a medical wit- 
ness to reply—“Ye3,”in the sense attached to the words by Sir James 
Stephen to the question—“ Did the prisoner know that he was doing 
wrong?” In Gouldstone’s case, for instance, Dr. Savage felt that to do so 
would be an evasion of the real meaning attached by the court to the expres- 
sion, and unworthy of a scientific witness. 
Another point to which one of these cases forcibly calls attention, is the 
neglect of the obvious symptoms of insanity in a man from whom homi- 
cidal acts might have at any time been expected. From what has transpired 
during and since his trial, we find that Cole was in good work up to 1877, 
and attentive to his wife and children ; that then he fell out of work, left 
home to seek it, and was found by the police, who took him to the Croydon 
workhouse infirmary as a wandering lunatic. When his wife went to see 
him he looked ill and strange, and did not know her ; he thought she was 
dead, and that he was there for killing her. Unfortunately, instead of 
being placed under proper medical treatment in an asylum, he was allowed 
to go home in a week’s tim6, and frightened his wife by his mad actions, 
nailing down the windows, &c., and placing a large knife under his pil- 
low. The insane suspicions which marked his case then have never left 
him, and the wife had to earn a living by caning chairs, which he would 
sometimes smash to pieces, the reason assigned being that she was electri- 
fying him. At night he was sleepless, and would walk the room, hearing 
imaginary noises, and declaring that strange men were concealed in the 
house. A medical man saw him in 1879, and said he was dangerous, that 
everything must be kept out of his way, and that he couldn’t understand 
why he had been allowed to go home from the workhouse instead of being MADNESS AND CHIME. 
sent to an asylum. So he went on fancying when in the house that his wife 
was trying to poison him, and when out of it that people were watching him 
in the street, and even assaulting them on this ground. His wife expected 
that he would commit some violent act, and that she would probably be the 
victim, but she does not appear to have thought he would injure their child, 
of whom he was very fond. The poor woman applied to the magistrates, 
but they comforted her by telling her that they could do nothing till he had 
committed some act. They referred her, however, to the relieving officer, 
and in consequence the parish doctor examined Cole, and gave her a certi- 
ficate on which he was removed to the infirmary. Here was a second op- 
portunity for doing something, taking care of the lunatic, and averting a 
dreadful catastrophe. But in vain. He was sent out in two days as mad 
as ever, and his wife, in mortal fear, called in the doctor, and he attended 
him at home. Soon after the man killed his child. All the day he had 
been walking about the house with a hammer and chisel, following his 
wife, who eventually managed to#take them from him and conceal them. 
The wife at last went for a policeman, and when at the gate heird a ncise in 
the house which induced her to return, when she found he had done the 
deed for which he was tried, and which we maintain might and ought to 
have been prevented by placing him in an asylum long before. This is the 
moral of the story. We have no desire to ignore the fact that Cole was an 
intemperate man. But we are satisfied that he was a sober man up to the 
time that he became insane in 1877, and that his giving way to drink wa3 
one of the symptoms of his madness, although doubtless a further aggrava- 
tion of it. But while it may be impossible to gauge with precision his 
moral responsibility in relation to the intensity and continuance of his 
mental disorder, proof is not wanting that he had been sober for at least a 
week before the fatal act was committed. In a word, this was not the re- 
sult of drink, but the outcome of a long, lasting state of delusional insanity . 
Had he joined the Blue Ribbon Army for months before, his delusions and 
their logical development in violence would have been the same. Add to 
this, that in consequence of his inability to earn a livelihood through his 
mental infirmity, he was wretchedly poor, and his brain was consequently 
ill-nourished, and rendered more and more a prey to suspicion. 
The conclusion, then, to which we earnestly draw attention, in the inter- 
ests alike of the law, of life, and of the lunatic, is the necessity of reform- 
ing the mode of Legal Procedure in ascertaining the Mental Condition of 
Prisoners. D. Hack Tuke. 
The Case of Guiteau.—We are far enough removed from 
the excitement of that awful tragedy, which resulted in the 
death of the President of the United States, to agree (now 
that he has been executed and the post-mortem examination 
of his brain has been made and submitted to the scientific MADNESS AND CRIME. 
world, imperfect as tliat examination was, when it could 
have been made most thorough in every respect and in min- 
utest detail), that there at least existed a question as to his 
sanity and responsibility which should have been submitted to 
the most critical medical examination and tests in the 
power of our government to have made, by the best medical 
men in this country, outside and independent of the trial 
itself. 
Provisions are made under the law of this State for ex- 
amination into the mental condition of any person charged 
with crime, before the trial, or even after the indictment, 
which, if it results in finding the accused insane, avoids the 
necessity of a trial upon the indictment when found. 
The code of criminal procedure of New York also provides 
for a proceeding to examine cases where insanity is alleged 
to have occured after conviction, as follows: 
Sec. 496. If after a defendant has been sentenced to the punishment of 
death, there is reasonable ground to believe that he has become insane, the 
Sheriff of the county in which the conviction took place, with the concur- 
rence of a Justice of the Supreme Court or the County Judge of the county, 
who may make an order to that effect, must impanel a jury of twelve per- 
sons of that county qualified to serve as jurors in a court of record to ex- 
amine the question of the sanity of the defendant. 
The Sheriff must give at least seven days’ notice of the time and place 
of the meeting of the jury to the District Attorney of the county. § 108 of 
the code of civil procedure regulates the impaneling of such a jury and the 
proceedings, upon the inquisition, so far as it is applicable. 
§ 497. District Attorney must attend and may produce witnesses by sub- 
poena. 
§ 498. The inquisition must be signed by jurors or sheriff. If it is found 
by the inquisition that the defendant is insane, the Sheriff must suspend 
execution of the warrant until he receives the warrant of the Governor di- 
recting that the defendant be executed. 
§ 499. The Sheriff must transmit inquisition to Governor, who, as 
soon as defendant is restored to sanity, must issue a warrant for execution, 
pursuant to sentence, unless commuted or pardoned, and may meanwhile 
dispose of defendant. (Code Criminal Procedure, title x., chap. 1.) MADNESS AND CRIME. 
If such a provision exists in the District of Columbia, 
where the homicide occurred, it was a remarkable fact that 
it was not invoked by either the counsel for the people or 
the prisoner ; nor was such a suggestion acted upon by the 
Government after the conviction and sentence, although 
pressed by some of the leading alienists of the country, as 
well as by citizens of every class throughout the land, as 
due to the self-respect of the Government and people. 
The next generation will be unable to understand why 
such an examination was not held, nor be able to appreciate 
the peculiarly delicate relation of the executive and his legal 
advisers to that trial, nor the almost universal clamor 
for the execution of Guiteau, which made such an inquisition 
apparently impracticable, if not practically impossible, at 
that time. 
The charge of the judge in the case of Guiteau fairly stated 
the law, not quite as strong and broad as the English judges 
in the cases of Gouldstone and Cole, but substantially within 
the recognized rule, as it is now laid down in most of the 
American States. 
No one can pretend for one moment to deny, that Guiteau 
fully understood the nature and quality of his act; nor that 
he was able to discriminate between right and wrong in re- 
gard thereto, and that he fully understood that it was a 
crime at law, and well knew the penalty which the law im- 
posed. 
If the legal test established by the English judges in 1843, 
or as laid down by Judges Day and Denman in cases of 
Gouldstone and Cole were to apply, the jury in Guiteau’s 
case must, of course, convict. 
In no case of insanity of the character of melancholia or MADNESS AND CRIME. 
with suicidal tendencies, where the disease is not readily de- 
tected, nor in any case of obscure character, is it possible 
ever to claim that the insane prisoner does not both know 
and fully understand that the act is wrong as human stand- 
ards are measured, and it must generally be conceded that 
he also well understands the nature and quality of the act 
and its penalty under the law. 
How far is this a reliable test of responsibility? Have 
we not come now to the point where the legal gentlemen can 
unite with medical men, and call a halt upon the justice or 
propriety of this remaining longer the law of such cases ? 
Dr. Hack Tuke quotes that eminent name, Sir James 
Fitz-James Stephens, in his recent masterly work on 
criminal law ; in which he speaks both as a jurist and as a 
student and expounder of the principles of English law. 
Sir James has recently been called to the English bench. 
As a judge he must administer the law as he finds it. He 
must sustain the current and continue in the line of the 
English decisions. A judge is not a law-maker. He is an 
expounder and interpreter of the law, and Sir James is far 
more valuable as an author and writer in his admirable 
treatise, than he is as a Judge in his judicial decisions. Sir 
James treats of this interesting subject inVol. 2, Chapter 
XIX., entitled “ Relation of Madness to Crime,” and his 
views are well worthy our serious consideration, from what 
has been called the legal position involved in this discussion. 
The learned writer gives a digest of the English law as to 
insanity from his standpoint as follows : 
No act is a crime if the person who does it is at the time when it is done, 
prevented [either by defective mental power or] by any disease affecting 
his mind— 
(a) From knowing the nature and quality of his act, or MADNESS AND CRIME. 
(6) From knowing that the act is wrong [or 
(c) From controlling his own conduct, unless the absence of the power 
of control has been produced by his own default]. 
But an act may be a crime although the mind of the person who does it is 
affected by disease, if such disease does not, in fact, produce upon his 
mind one or other of the effects above-mentioned in reference to that act. 
He comments upon the answers of the Judges in 
the McNaughten case, and holds that their authority is 
questionable, though he has followed them as a Judge, and 
concedes “ that when they are carefully considered they leave 
untouched the most difficult questions connected ivith the subject, 
and lay down propositions liable to be misunderstood ; ” but he 
claims that they should be construed “in away that would 
satisfactorily dispose of all cases whatever 
He reduces the doubtful points to the single question “ Is 
madness to be regarded solely as a case of innocent ignorance or 
mistake, or is it also to be regarded as a disease, which may 
affect the emotions and the will in such a manner that the sufferer 
ought not to be punished for the acts which it causes him to do ?” 
Again, Sir James claims that, yielding the point that the 
answers of Judges must be accepted, though of doubtful 
authority, “ the law allows that a man who by reason of mental 
disease is prevented from controlling his own conduct, is not re- 
sponsible for ivhat he does.” 
I have not space within the limits of such a paper to give 
this chapter, which is worthy of reprint, entire, but I give a 
few extracts which I regard very important in the pending 
discussion: 
The position of Sir James Fitz-James Stephens may be 
defined or stated as follows : 
The different legal authorities upon the subject have been right in hold- 
ing that the mere existence of madness ought not to give excuse for crime, 
unless it produces, in fact, one or the other of certain consequences. MADNESS AND CRIME. 
I also think that the principle which they have laid down will be found, 
when properly understood, to cover any case which ought to be covered 
by it. 
But the terms in which it is expressed are too narrow, when taken in 
their most obvious and literal sense, and when the circumstances under 
which the principle was laid down are forgotten. Vol. 2, chapter xix., 
p. 125. 
He says, p. 130 :—“ What are sanity and insanity ?” 
The answer is that sanity exists when the brain and the nervous system 
are in such a condition that the mental functions of feeling and emotion 
and willing can be performed in their regular and usual manner. Insanity 
means a state in which one or more of the above-named mental functions 
is performed in an abnormal manner, or not performed at all, by reason of 
some disease of the brain or nervous system. 
In commenting on the answers of the Judges in the 
McNaughton case, says : 
I am of the opinion that even if the answers given by the Judges in 
McNaughton’s case are regarded as a binding declaration of the law of Eng- 
land ; that law as it stands is, that a man, who by reason of mental disease, 
is prevented from controlling his own conduct, is not responsible for what 
he does. 
I also think that the existence of any insane delusion, impulse or other 
state which is commonly produced by madness, is a fact relevant to the 
question, whether or not he can control his conduct, and as such may be 
proved, and ought to be left to the jury, p. 169. 
He continues : 
The proposition, then, which I have to maintain and explain is that, if 
it is not, it ought to be the law of England that no act is a crime if the per- 
son who does it is, at the time when it is done, prevented, either by defec- 
tive mental power, or by any disease affecting his mind, from controlling 
his own conduct, unless the absence of the power to control has been pro- 
duced by his own default. ******* 
No doubt there are cases in which madness interferes with the power of 
self-control, and so leaves the sufferer at the mercy of any temptation to 
which he may be exposed ; and if this can be shown to be the case, I think 
the sufferer ought to be excused (p. 168-70). 
The difficulty is in properly defining the words “ know ” 
and “wrong.” No narrow or forced construction should be 
given these words, but the wide and broad signification, 
which Sir James puts as follows : MADNESS AND CRIME 
Knowledge and power are the constituent elements of all voluntary action, 
and if either is seriously impaired the other is disabled. It is as true that 
a man who cannot control himself does not know the nature of his acts, 
as that a man who does not know the nature of his acts is incapable of 
self-control (p. 171). 
Regarding the matter as one for the Legislature, I do not think that it is 
expedient a person unable to control his conduct should be the subject of 
legal punishment. 
The fear of punishment can never prevent a man from contracting dis- 
ease of the brain or prevent that disease from weakening his power of con- 
trolling his own action in the sense explained ; and whatever the law may 
declare, I suppose it will not be doubted that a man whose power of con- 
trolling his conduct is destroyed by disease, would not be regarded as 
morally blamable for his acts (p. 171). 
Sir James justifies the punishment of madmen in certain 
cases— 
Little or no loss is inflicted on either the madman himself or on the com- 
munity by his execution. 
It is indeed more difficult to say why a dangerous and incurable madman 
should not be painlessly put to death, as a measure of humanity, than to 
show why a man who being both mad and wicked, deliberately commits a 
crime as murder, should be executed as a murderer (p. 178). 
I may observe that the principle that madmen ought, in some cases, to 
be punished, is proved by the practice of lunatic asylums (p. 181), and 
cites Dr. Maudsley (see Responsibility, p. 129). 
I cite further : 
The question, “ What are the mental elements of responsibility?” is and 
must be a legal question. I believe that by the existing law of England 
these elements (so far as madness is concerned), are knowledge that an act 
is wrong and power to abstain from doing it ; and I think it is the pro- 
vince of Judges to declare and explain this to the jury. 
I think it is the province of medical men to state, for the information of 
the court, such facts as experience has taught them, bearing upon the 
question, whether any form of madness affects, and in what manner, and 
to what extent it affects either of these elements of responsibility, and I 
see no reason why under the law as it stands, this division of labor 
should not be carried out (p. 183). 
Iii 1874 Mr. Russell Gurny’s bill, introduced before the 
English Parliament, proposing amendments of the law re- 
lating to homicide, contained a clause recognizing the loss MADNESS AND CRIME. 
of self-control, the result of disease, as one of the causes of 
exemption from responsibility in these cases—and while the 
bill did not become a law it led to the appointment of a 
committee before whom Sir James Stephens was called to 
testify, who claimed that the law should plainly state and 
define responsibility, and provide exactly where it rested 
and where it did not. 
This evidence of Sir James created a great sensation, and 
the committee took the evidence of the Lord Chief Justice 
(Cockburn) which in the light of this discussion I may be 
pardoned for quoting. 
He said : 
As the law, as expounded by the Judges in the House of Lords, now 
stands, it is only when mental disease produces incapacity to distinguish 
between right and wrong, that immunity from the penal consequences of 
crime is admitted. The present bill introduces a new element, the absence 
of the power of self-control. 
I concur most cordially in the proposed alteration of the law, having 
been always strongly of opinion that, as the pathology of insanity abund- 
antly establishes, there are forms of mental disease in which, though the 
patient is quite aware he is about to do wrong, the will becomes over- 
powered by the force of irresistible impulse ; the power of self-control when 
destroyed or suspended by mental disease becomes, I think, an essential ele- 
ment of (ir) responsibility. 
Sir James Stephen proposes that a jury should be allowed to return three 
verdicts—(1) Guilty ; (2) Guilty, but the power of his self-control was 
diminished by insanity ; (3) Not Guilty, on the ground of insanity. 
This proposal, while a decided step forward, is liable to 
objections, which are most forcibly presented by Dr. Hack 
Tuke in his review of Sir James’ book. (Journal of Mental 
Science, July, 1883, pp. 267, 268.) 
Dr. John C. Bucknill, in his admirable review of Sir 
James’ book, criticises Sir James’ definition of insanity as 
follows (Medico-Legal Journal, Vol. 2, p. 190): 
But this is a medical definition, oovering the slightest deviation from MADNESS AND CRIME. 
mental health arising from hysteria or alcohol, from bile or gout. It in- 
cludes states of feeling as sensation, which may not affect the mind. It 
includes abeyance of mental functions, which is not insanity ; for, when 
the mental functions are not performed at all, there is no insanity. 
It is clear from the context that this definition of insanity would include 
more than Mr. Justice Stephen could allow to be irresponsible ; and no 
good is gained by thus analysing the mind, and detailing the results of the 
analysis, more or less complete, as functions which may be separately 
affected. I shall myself venture to make one more medico-legal definition 
of insanity. Insanity is incapacitating weakness or derangement of mind 
caused by disease. It seems to me to be practically useful and scientifically 
accurate to make a distinction between weakness and derangement of mind. 
It seems to me also that all insanity which is not weakness will fairly come 
under the head of derangement in its widest sense ; for morbid states of 
the emotions derange the play of mind. But the all important term in the 
definition is, of course, the attribute which points to the want of power to 
do something. In criminal inquiries, it means incapability of abstaining 
from the criminal act. It means that condition of irresponsibility pointed 
to by Lord Bramwell in Dove’s trial—Could he help it ? It means that 
which has been much insisted upon by medical writers and great legal 
authorities, the loss of self-control. Lord Chief Justice Cockburn and 
Justice Stephen have both expressed the strongest opinion that this state 
of mind caused by insanity ought to remove responsibility. 
And I am also inclined to agree with Dr. Bucknill that, 
notwithstanding the written views of both Sir James and 
Chief Justice Cockburn, the law of England to-day as ad- 
ministered is as laid down by the Judges in the McNaugh- 
ten case, although quite agreeing with Sir James that its 
strict enforcement would lead to monstrous consequences in 
many instances. 
The Provisions of the New York Penal Code lay down 
the law as follows : 
Sec. 17. A person is presumed to be responsible for his acts. The 
burden of proving that he is irresponsible is upon the accused person, ex- 
cept as otherwise presented in this code. 
Sec. 20. An act done by a person who is an idiot, imbecile, lunatic, in- 
sane or of unsound mind, is not a crime. 
A person cannot be tried, sentenced to any punishment, or punished for 
any crime while he is in a state of idiocy, imbecility, insanity or lunacy, so 
as to be incapable of understanding the proceedings or making his defense. MADNESS AND CHIME. 
Sec. 21. A person is not excused from criminal liability, as an idiot, 
imbecile, lunatic or insane person, or of unsound mind, except upon proof 
that at the time of committing the alleged criminal act he was laboring un- 
der such a defect of reason, as either. 
1. Not to know the nature of the quality of the act he was doing ; or, 
2. Not to know that the act was wrong. 
Sec. 22. No act committed by a person, while in a state of voluntary in- 
toxication, shall be deemed less criminal by reason of his having been in 
such condition. But wherever the actual existence of any particular pur- 
pose, motive, or intent, is a necessary element to constitute a particular 
species or degree of crime, the jury may take into consideration the fact 
that the accused was intoxicated at the time in determining the purpose, 
motive, or intent, with which he committed the act. 
Sec. 23. A morbid propensity to commit prohibited acts, existing in the 
mind of a person who is not shown to have been incapable of knowing the 
wrongfulness of such acts, forms no defense to a prosecution therefor. 
Sec. 3343, Chap. xxii. of Code of Civil Procedure, (Subdivison 15) defines 
lunacy as follows : “The words ‘lunacy’ and ‘lunatic’ embrace every 
description of unsoundness of mind, except ‘idiocy.’” 
These two Sections, 20 and 21, must be construed together, 
as in some respects they apparently conflict. 
The first part of Section 20 leaves lunacy undecided and 
undefined. The latter part would seem to define it to apply 
to the accused when in a state so as to be incapable of un- 
derstanding the proceeding or making his defense; but Sec- 
tion 21 is a re-statement of the rule in the McNaughten 
case : 
“ Laboring under such a defect of reason as either not to 
know the nature or the quality of the act he was doing, or 
not to know that the act was wrong.” 
It is a source of profound regret that Mr. David Dudley 
Field and his confreres in framing and submitting the Penal 
Code did not meet this issue, rather than to have re-stated 
their view of the existing English law. 
The time has come when legislators must face this ques- 
tion upon its merits. The able and masterly manner in 
which Sir James discusses the question, the decisions in MADNESS AND CRIME. 
many of the American States recognizing a different test for 
responsibility, call for a settled law both in England and 
America, which would be in accord with the principles of 
justice and commensurate with the civilization of our age. 
I think legislators, as well as judges, who administer the 
law in both countries, must feel that the time has come to 
carefully consider this question, and to state the law of re- 
sponsibility in this class of cases so clearly, as to remove the 
very just criticisms everywhere made upon the dicta of some 
of the judges. 
There is no doubt whatever that the uncertainty of ver- 
dicts, is largely due to the popular conviction of the injustice 
of the law as it now exists, and as it is frequently construed 
by the courts. 
I am not unconscious of the fact that some judges have 
decided against what may be called the views of the English 
judges in McNaughton case, as notably Judge Ladd, of 
New Hampshire, in the case of Jones (State vs. Jones, N. H., 
388); Beardsly in People vs. Freeman (H. Denio, 27), and 
Judge Brewster of the Pliila. Common Pleas in 1868, who 
held that the true test lies in the word “ power.” 
“ Has the defendant in a criminal case the power to dis- 
tinguish right from wrong and the power to"adhere to the 
right and avoid the wrong ? ” (Wharton and Stille, § 159). 
Shaw, C. J., in Commonwealth vs. Rogers (Bennett and 
Heard, leading criminal cases, 2 Ed., pp. 96-97.) 
Robertson, J., in the Kentucky Court of Appeals (Whar- 
ton and Stille, § 175). There is a judicial tendency in many 
of our States, to hold an accused irresponsible who acts 
under an uncontrollable impulse based upon an insane 
delusion, even though he fully understands the nature MADNESS AND CRIME. 
and consequences of his act, and can discriminate between 
right and wrong, but the rule in this country and surely in 
England, is greatly affected and controlled by the action of 
the English judges in 1843. 
By far the ablest assault upon the existing law from the 
legal side is that of the learned Sir James Stephens. 
The admirable paper of Dr. John Charles Bucknill, read 
before this Society and appearing in the September number 
of the Medico-Legal Journal, is a masterly presentation of 
the subject. 
It is a legislative and not a judicial question, and must 
receive public attention commensurate with its great im- 
portance in the administration of criminal jurisprudence.