National Prison Congress of 1898, "There is in every institution a certain proportion of inmates who are epileptics, paranoiacs, imbeciles, or who are unquestionably suffer ing from various other forms of mental dis ease, such as acute and chronic mania, mel ancholia, paresis and the various forms of dementia." The lawyers reply (and there is much in their contention), "Will not your plan create too great a leniency for malefac tors? Will you not in your solicitude for the individual evil-doer endanger the safety of society?" There is a tendency among medical men to attribute the failure of lawyers to accept the medical test of responsibility to gross ignorance of mental conditions and phenom ena. Such a charge is not wholly fair or deserved, for lawyers may admit the theo retical value of the medical test and yet reject it as a practical working theory. Our lim itations in the methods of application of a perfect theoretic law through human instru mentalities may destroy its practical value. The medical experts in our courts (even al lowing for the handicap of present restric tions in the law) have themselves furnished an argument against the theories they ad vance, for we have seen learned men "con scientiously testifying to diametrically oppo site facts" and creating the impression that in the serene field of science theories may, at times, be conveniently modified to fit the demands of a fee. Moreover, we have au thority for the statement that expert testi mony (as at present in practice) is "in many cases wholly disregarded by the men in the box." .That the test of mental responsibility now on our statute books is clearly unscientific is beyond argument, but it does not follow that the formula suggested by mental experts is acceptable as a working test. Another point to be considered as affect ing this medico-legal conflict is that law and medicine represent distinct currents or forces of thought in the life of civilized States. Law represents conservatism and ad
herence to rule and precedent; Medicine is essentially a positive science and inherently progressive. The decisions of the courts to a certain extent are based on logic and in duction, rather than on observation of phe nomena; as such they must necessarily be, to a great extent, immutable. This, in our day, may be only partially true (and fortu nately so), but it is still an influence in judi cial decisions. The antiquity of a medical formula, instead, is by no means a binding force on medical practitioners, but rather an objection to its use. The difference in the point of view between the two professions undoubtedly strengthens the personal equation in the judgments of each which naturally exists as the result of their respective training, traditions and prac tice. This mutually critical attitude is intensified by a cause which, though rather emotional than scientific, is by no means a negligible one. In a general way it may be said that the forces which are at variance in regard to the question of mental responsibility are sep arable not only professionally between the jurist and the pathologist, but also racially between the Latin and the Anglo-Saxon. The movement for the introduction of the medical test of responsibility in criminal law is the product of the teachings of the school of criminology which counts the greatest students among Latin scholars. AngloSaxons have a well-nigh instinctive and not always reasonable objection to what we call "foreign" theories, especially when they in volve juridic questions and are advanced by people belonging to those nations which our masses imagine enjoy less liberty than we do. Hence any attempt to make the question of responsibility a pathological one will tend to be met by the emotional plea that if we take the power of life, liberty and property from the courts (which we justly consider the great preservers of our rights), and submit it to a medical tribunal, we weak en our defences in imitation of foreign sys tems.
