Madness and Crime.
503
MADNESS AND CRIME. THE controversy between lawyers and doctors as to the criminal responsibil ity of the insane is so inveterate and has hitherto been both so jejune and so largely academic, that its reappearance at the pres ent dull season may not seem to call for any comment. But the definite proposal made at the recent meeting of the British Medical Association, that the House of Lords should be invited without delay to ask the judges to answer "certain questions with re gard to the defense of insanity in criminal cases," imparts to the latest revival of this interminable feud not a little extrinsic in terest and importance. Five distinct tests of criteria have at different periods in the history of English law been employed for the purpose of determining the criminal responsibility of the insane. First we have what has been compendiousry described as "the boy of fourteen " theory. For this we are indebted to Sir Matthew Hale. "Such a person," said that great jurist, " as labor ing under melancholy distempers hath yet ordinarily as great understanding as a child of fourteen years, may be guilty of treason or felony." In the beginning of the eigh teenth century this primitive standard was superseded. One would gladly think that its abandonment was due to the eventual perception by the judges of the day that no two states of mind could be more unlike or less capable of comparison than the healthy immaturity of a boy of fourteen and the diseased maturity of a lunatic. But, unfor tunately, this comforting hypothesis is un tenable. For the boy of fourteen theory gave place to a still more unscientific test. On the trial of Edwin Arnold, at Kingston, in 1723, for wounding Lord Onslow, Mr. Justice Tracey, in charging the jury, said that " a prisoner, in order to be acquitted on the ground of insanity, must be a man that is totally deprived of his understanding and
memory, and doth not know what he is doing, no (sic) more than an infant, a brute, or a wild beast." No such lunatic ever ex isted, and the only excuse that can be offered for Mr. Justice Tracey's famous dic tum is that he merely gave an exaggerated and inaccurate description of the violent and acute mania to which the asylum system of his day steadily reduced all other types of insanity. The "wild beast" theory, however, marks the lowest depth to which the law of England as to the criminal re sponsibility of the insane descended. Its subsequent ascent has been curiously fitful and irregular. On the trial of Hadfield in 1800 for shooting at George III. in Drury Lane Theatre, Lord Chief Justice Kenyon told the jury that the prisoner's responsibil ity depended on the question "whether at the very time when he committed the act his mind was sane." But this advance was not long maintained. For in 1812, on the trial of Bellingham for the murder of Mr. Perceval in the Lobby of the House of Commons, Sir James Mansfield prescribed another test of punishable insanity — namely, whether the accused possessed sufficient capacity to distinguish between right and wrong in the abstract. In the course of time this theory of responsibility also was felt to be inadequate. Scientific observers of the phenomena of mental dis ease established the existence of a type of lunatic whose general notions of right and wrong were perfectly clear and correct, and who, nevertheless, committed acts forbidden alike by morality and by law, under a fixed belief that his conduct was not only pardon able but meritorious. It might well be that such persons deserved punishment. But it was certain that the existing law offered little guidance as to the principles on which their punishment should be based. This deficiency the present legal test of lunacy
