THE CRIMINAL CODE. LErrsit IL

TO THE EDITOR OF TUE SPECTATOR.

Ena-I have shown, by one wholly and one partly suppasititions case, how many

judwi,.cial murders might be committed under the rule, which suggests the lament of the law as the test of criminal responsibility. Let me add another case of actual occurrence-that of Martin the incendiary, 1829, (see Shelford on Lunatics, pp. 464 and following). Martin, as he stated at the trial, "heard a

-voice which told him it was his destiny to destroy the cathedral, on account of the misconduct of the clergy." After this he had no rest day or night until he prepared to accomplish his design. When he had got everything ready, he told his wife; and she was greatly troubled, and asked what would become of her and :her child. When his child was mentioned, be at first repented, and began to waver; but he heard a voice saying, " What thou doest, do -well; go forward and complete the work." Can anything be more obvious than that Martin was perfectly aware of the Regality of the act be was committing, especially when his wife had "asked what would become of her "? Another clear case for the hangman under the new ,code! But there was no code then (thank God alas, I am compelled to say in this instance). Baron Bullock put it to the Jury whether the criminal was inca- pable of judging between right and wrong; and Martin was acquitted.

Of the frequency of delusions of this nature there can be no doubt. In mad- ness, says Dr. Beck, Elements of Medical Jurisprudence, "the ear more particu-

larly suffers it is from disorder of this organ, and which is referable to the original diseased action of the functions of the brain, that many maniacs derive the delusion under which they labour. The commission which they suppose themselves to receive from some superior being is given by the ear; they imagine it constantly repeated. They are thus, they imagine, urged to its performance; and in too many cases murder or self-destruction is the unhappy result." It is therefore impossible to admit the article as framed by the Commissioners. Notwithstanding the arguments adduced against the "right-or-wrong" test of ajminal responsibility, so long as it continues in force, many an unfortunate mad- man will be spared from those penalties which he has had no will to deserve. But it does not follow thence that the old rule is a good one. Why do we talk of right or wrong at all ? is it not a sufficient ground of irresponsibility that an

act be committed by reason of some delusion, &c. ? The question really is, not Did A B know that the act he was committing was wrong, or was contrary to �alv? but, Was it an act of reason, or of madness? did he do it of his free will, 451 under some irresistible influence of disease? The fact is, madness should be

considered as a sort d moral duress. You do not ask of a man compelled under

-threats of death to pick a lock, whether he knew that the act was contrary to law; you do not convict him if he answers "Yes"; you ask merely, was he com-

pelled by an irresistible physical influence to commit the act? And so it should be in the case of mental delusion. When Martin heard the voice, " What thou Ileast, do well," he was an instrument as completely passive in the hands of his own delusion as any boy-thief in those of a grown-up ruffian. I maintain, therefore, that the whole scope of the proposed enactment, as cor- rected by the above considerations, would be attained by the following wording-

" No person shall be criminally responsible for any act or omission committed by reason o f incapacity or weakness of mind, or of any unsoundness, disease, or alelusion of mind."

I need scarcely point out the slipslop of the old article of a man, " by reason of incapacity of mind," wanting " the capacity to discern," &c. The modified article proposed above is capable of amendment; but, of course, I prefer adhering as much as possible to the wording of the Commissioners.

Let me, however, suggest the consideration of a somewhat novel question, arising out of the view I now place before you, of making the power of the delu- aim the test of criminal responsibility.

I am far from thinking that in all cases of delusion, even bearing upon the act committed, the offender is to be held exempt from punishment: the delusion, I

repeat it, must be irresistible. The delusion may often be merely the foundation

of a scheme of vengeance, in which the action of the will is too clearly apparent; as in the case of Lord Ferrers, executed for murdering his butler. In such cases, it does not perhaps much matter whether the original motive for the act were founded in truth or error: the males animus is evident; the man who could kill another for an imaginary wrong would certainly have killed him for a real one of the same nature. The delusion, in other words, is but the occasion and not the cause of

the act; the real cause being, as in every other crime, the evil passions of the culprit. We have thus two classes of criminal lunatics,---the one wholly exempt from 'punishment, as having been solely impelled to crime by their delusion; the other

thoroughly deserving of it, as having been impelled to it by their own wicked- ness, working upon a groundwork of delusion. These last are merely wicked men who happen besides to be mad. To the former class belong Hadfield and Martin; to the latter, Lord Ferrero. But there lies between the two a middle class of cases, far more difficult to deal with than either of the others: men in whom neither delusion nor wickedness reigns alone; whose will is not wholly bad, nor yet wholly influenced by disease; who would not have committed the crime had they not been mad, and yet were perhaps not too mad to have been able to refrain from it. Take, for example, M'Naghten. A mild man, of sensible, im- proving mind and cultivated tastes, who imbibes a delusion, conceives from it a plan of vengeance which would never otherwise have entered into his head, fol- lows that plan up with considerable forethought, and is only saved by Providence from wreaking it upon the destined object. I am not afraid of saying, that such a man was a fit subject of punishment; but I am equally certain, that whatever may be the highest penalty of the law, such a man is not to be plated in thesame category with Courvoisier, Tawell, or Wicks. I rejoice that he was acquitted on the latter ground; but on the former, I agree with the popular voice that society

is not safe whilst such lunatics have nothing further to dread than the madhouse. Nay, I am convinced that, instead of the uproar of conflicting opinions which was produced by his acquittal, scarcely a dissentient voice would have been raised had the law allowed the Judge the power of sentencing him to transportation.

For this intermediate class of madmen there should therefore, I think, be pro- vided some degree of punishment apart from the mere confinement in an asylum during her Majesty's pleasure; but less in all cases than that which would be awarded to a man of full intellect. It is very satisfactorily proved by the little work before quoted, "On Man's Power over himself to prevent or control Insanity," that the fear of punishment is in cases of this description a salutary check, not .cnly against the violence of madness, but against madness itself. The author (the Reverend Mr. Barlow) adduces the remarkable instance of a shoemaker who was actually kept sane by the dread of an asylum; and it is but rational to suppose, that the still greater terrors of transportation would operate still more strongly to check mischievous delusions. But this should yet never lead us to disregard the extenuating influence of such delusions. We make allowance for sudden provoca- tion, as extenuating murder to manslaughter: shall we not make allowance for that organic disease which acts as a perpetual provocation, even though it be con- trollable by the will, like anger itself ?

I should therefore suggest the insertion of a provision of the following nature- " Where any act or omission shall have been committed partly by reason of inca- pacity or weakness of mind, or of any unsoundness, disease, or delusion of mind, the person committing the same shall be liable to the penalties of the class next below that which would have been awarded to a person of full understanding for such act or omission."

It will be observed, that I have argued the question in the shape in which it comes before me, i. e. as one of law and not of punishment. An abler hand than mine (Mr. Sampson's) has already shown in the pages of the Spectator the inti- mate connexion between the tendencies to murder and to suicide; a connexion which goes far to prove that death-punishments act, at least in all cases of in- cipient madness, as an incentive to murder rather than as deterring from it. Whilst death-punishments remain in our legislation, how could they but stimu- late such fanaticism as broke out in Denmark during the middle of the last cen- tury (see Beck, p. 472, note); the victims of which imagined, that by commit- ting premeditated murder and being afterwards condemned to die, they would be the better able, by public marks of repentance and conversion as they went to the scaffold, to prepare themselves for death and work out their salvation? Yet it is scarcely possible so to narrow the line of criminal responsibility as to exclude fanatics of this description. In dismissing the subject of insanity, I cannot help noting a circumstance which has struck me painfully in the proposed code: it is a mere lawyer's code; compiled, very conscientiously no doubt, by five clever and honest men,. but who are quite unable to look beyond the range of the law itself. The question of re- sponsibility in cases of alleged delusion, for instance, is at least as much one of medicine as of law: but we look in vain ihrongh the notes for any single reference to medical authority-for the testimony of a single witness, even non-medical, on the subject. Without pretending to deny that medical men are often as much prejudiced in favour of swanky as lawyers are perhaps in favour of sanity, yet it is strange to find that the labours of Esquirol, Mare, Prichard, &c., on this great problem of moral responsibility, do not appear to have furnished a single thought to these gentlemen !

This must not be. The criminal law is perhaps that branch of jurisprudence which is the most intimately connected with all other highest branches of human knowledge. It has its sources in philosophy and physiology-the science of the mind and that of the body; its results are to be traced in history, statis- tics, and the political condition of nations.