CRIMINAL JURISPRUDENCE IN RELATION TO MENTAL ORGANIZATION AND SOCIAL RESPOI■iSIBILITY.

refrain est improbos csercere poenn, nisi probss sfficias disciptina.

LETTER II.

TO THE EDITOR OF THE SPECTATOR.

Sin—In my first letter I called your attention to, the dependence of the mind upon the formation and quality of its material instrument, the brain. I . referred particularly to the fact that the operation of the feelings and passions depend upon the physical system no less than the understanding ; and I shall now, after subjoining a few further illustrations, proceed to exemplify the evils which have arisen from a neglect of this point in the consideration of the sub- ject of Social Responsibility.

In illustration of the fact that a person may be fully convinced that he is doing wrong and yet be unable to resist the tendency, Mr. WOODWARD, to whose valuthe experience I shall constantly refer, says—" To establish moral insanity, it is not necessary that the subject of it should be wholly reckless and regardless of consequences. Many individuals 'are constantly under the in- fluence of uncontrollable propensities, and at the same time are conscious that they are not doing right. Such instances are daily presented to us; they vio- late and repent, and resolve to do better ; and in a moment violate again! This is as often seen in acts of petty mischief as in high-handed crime and misdemeanour."

GEORGET mentions a case of a woman who consulted him, and who was evidently healthy and rational, whose irresistible propensity it was to murderher children : she abhorred herself for the feeling, and avoide:d windows and sharp instruments, and often fled the house to get out of their way. GALL relates the case of a man at Vienna, who after witnessing an execu- tion was seized with a desire to kill. He wept bitterly, struck his head, wrung his hands, and cried to Isis friends to take care and get out of his way. Pnrat, speaks of a person, exhibiting no unsoundness of intellect, who confessed that he had a propensity to kill : he nearly murdered his wife, and then frequently attempted self-destruction.

It was recently mentioned in the London JIIieo1 G

It is known that, according to the excessive size of any organ, such is its tendency, other things being equal, to disproportionate or excessive action. This holds good with regard to the various organs of the brain, as well as to the

other portions of our system. Excessive action can only he maintained by an over supply of nutriment, and hence a permanent increase of satomiferous circulation occurs in the region of the organ, which increase, if suffered to exist in it great degree for a lengthened period, may lead eventually to struc- tural change, and assume the form of incurable insanity. But although in old cases of insanity-, diseased organization of the Main is 'almost invariably found, in recent cases there is rardy diseased organization, but the vessels on the whole surface of the brain are surcharged with blood, and clearly indicate the existence of increased cerebral action. Now, as diseased organization is not necessary to the production of insanity, at what point of excessive sanguiferous fiction shall we decide that insanity commences If a person is under the slightest excitement, nay, under the mere operation of any ordinary feeling, an increas.n1 supply of blood for its manifestation is required and sent to its organ in the brain. If the emotion increases, the supply of blood to its organ must have increased in a due proportion, and so on, until the supply becomes so great as to cnrry it to a state of blind excitement that missy cause it to overpower all other emotions, and eventually even lead it to act without the knowledv of the intellect or the concurrence of the other feelings. The excite- ment at nest be raised by a very trivial cause, but comied with original malformation or defective quality of brain, the slightest cause is sometimes sufficient-, (and where these conditions do not, either one or both of them, pre- viously exist, maniacal excitement will never arise, except in cases of acci- dental violence to the brain, or from svmpatny situ other diseased organs of the body); but having once arisen, unless the exciting cause be removed, or sonic unusually Strom; antagonist motive be presented, its tendency is to increase in p.iwer, until spending its force in blind and ungoverned action the whole svstem beee.t.es so exhausted that the circulation is enteelded in everypart. The following aneed.we will serve as an illustration of the coincidence of ex- cited feelim, Ntitis increased sanrmiferous tire:Id:0km. A Portuguese. bv the name of lt6Er..r.o, was employed by a mechanic in the western part of Lich- field county, Connecticut, to assist him as a shoemaker. Ile had been in the neighbouring towns, and his conduct aneated singular. but usually inoffensive. In the famirv of the meehaoic he had appeared pkasant, and grateful for the kindness ei bleb had been extended to him. One (lay a little son of Isis new employer accident;01;. stepped upon his toes. The lad was twelve years old only. It.it-sni.t.o y as exceedingly angry. and in the moment of his rage threat- ened his life. The next day he appeared sullen, refused his food, and looked and malicious. The following morning he went to the barn-yard with the Loy, seized aa axe, and killed him Lin the spotonang!ing Lijilo tCImlOSt shock- manner. lie went deliberately away- from the house. but a os soon overtaken by those in pursuit. Ile acknowledged t hat he leei ks. the and gave as a reason, that he had stepped upon last. es. I; "isle., rr.an the evidence produced on his trial, that this was an otieme most and not t.) lie forgiven. Many instances were giv.e. ie the same aceident had peodoved the same exciti:inent of tesni'•:. :5:1 ml with threats.

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-o a: claims excitote.in : kit in these • 1'to■:.1e0.1.1,1 the •:. CI:1101113SM ilisut 16110-1e1 .111,I of erny..... cause.* Where this is not the :as,. :: • posit Mina or tits' celutuilill 1 s,s beco :.•: s details of int.rder or suicide in the 1,.•:

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the ill condition of some other organ (frequently-the liver) acting by sympathy on the brain.

"Insanity," says Sir Wira.ram Eraas, " whatever may be its primary cause, (with the exception of cases arising from loss of blood, want of nutri- tion, or some other debilitating source,) Leyiirs with an excess of sanguiferous circulation in the brain or some part of it. The immediate cause of this excess of circulation is either over exercise of the brain or Some part of it, or irritation produced in it by its sympathy with some other diseased bodily organ." Since, then, the proximate cause of insanity is the ineresssd supply of sanguiferous circulation, and since it must always be impossible to ascertain the amount of circulation with svhich the brain, or any part of it, was charged at any given time, it is clear that we must always remain in every c.tse unable to fix upon any stage of increased supply as that at which insanity really com- menced. if, therefore, we are in criminal jurisprudence to continue to net as if the line between responsibility and irresponsibility had an absolute existence, we must, (as we can never in any case get at information as to what was the condition of the criminal's brain at the time of the commission of the offence,) be prepared to submit to the belief that in those cases which approach most nearly to the imaginary verge, we frequently pass erroneous judgments; some- times wrongly granting an acquittal, and sometimes sentencing a culprit to death for the commission of a crime, of which, had we known the precise state of his brain, we should have declared him to be guiltless by reason of insanity. Indeed, Sir Wit.r.ram Emas remarks, that " In insanity arising front moral causes, diseased action of the brain is rarely produced by any sudden shock,

but it generally arises from the continued operation of some exciting cause producing excessive vascular action in the brain, or some part of it. Un-

fortunately, the alteration in the sentiments and conduct in many cases is so gradual that diseased action of the brain may have existed without being suspected until diseased organization [the incurable stage of insanity l ] has actually taken place." Thus it will be seen that insanity may go on even to its ultimate stage without being suspected; and that it is theretbre impossible, excepting by a Rost-mortem examination, to assert that any given individual is not only not already visited with the incipient growth of the disorder, but that he has not passed even to its last and incurable stage. Yet notwithstanding the difficulty

svhich is thus known and confessed, it is always presumed that any twelve men

taken from the ordinary dirties of their shops and counting-houses, are fully qualified to pronounce an opinion as to the mental condition of the culprits that may be brought before them. Assuredly the old method of practice %Odeh was pursued among the Scottish Borderers, of executing a man first and trying him afterwards, was much more consistent with reason than the modern method; since in these cases they did really possess the means, by a post-mortem examination, of ascertaining from the only source which can be relied upon, the absolute condition of the brain of the offendent All affections or diseases of the body may be traced to causes analogous to those which produce affections or diseases of the brain, viz. original malforma- tion, sympathy with other diseased parts of the body, ill-directed exercise, con- tagious association. accidental lesion, 8cc. &c. ; but when we speak of persons being in ill health, in cases where any other organ of the body than the brain is affected, we never think of expressing a desire to punish them for their mis- fortune, because we consider that the pain they must necessarily suffer, and the restraint and confinement to which they must submit in order to promote recovery, are circumstances that should awaken our pity rather than our anger, and we urge them to seek the aid of a competent physician. Yet the moment the brain is discoveret1 to be the organ that is in an unsound state, our view of the matter immediately changes. We then talk of " responsibility," and of the neces:ity of " punishment," (without questioning as to whether these terms must necessarily be united.) although it would be quite as rational to flog a man at the cart's-tail for having become infected with the scarlet fever, owtog to a predisposition 1:11(.1 exposure to the disease, as to pursue the same course to one who, falling Into temptation, had given way to a predisposition for

taking possession of Ithatever he could lay his hands upon. To be sure, it

might be said that tic flogging could not operate so as to deter the roan from catching another lever, while it might deter the thief from repeating his offence ; but this distinction will not hold good, because in the tirst instance, dread of the punishment might possibly induce the patient to attend in future so closely to the laws of health, as to keep him safe from infection, and it could do no more in the latter case with regard to the laws of morality. But it will be said that one who offends against the laws of health by neglecting the precautions and duties necessary to the preservation of bodily sanity, injures only lihnself—that the evil consequences are entirely personal— and that society has nothing to do with it ; while in the case of a moral offender, society generally is exposed to injury, and it therefore becomes its duty, as a matter of self-deflaice, to resort to the infliction of punishment. There is, however, nothing in this argument that can be maintained for one moment, for the injury done to the race is just as extensive in one case as in the other. If

a man by his own imprudence ruins his bodily health, society suffers by the

impairment, in one of its members, of those energies which were given and in- tended to be used for the good of all ; and it suffers far more seriously even than this, when the man of ruined constitution transmits to another generation his own delicate and el.f..ebled powers. Assuredly if mankind could at one view take a glance at all the ills that have been brouolit upon the race collectively by the inattention of man to the general health of his frame, they would be disposed to allow that they had quite as much interest in enforcing obedience to the physical as to the moral laws Another argument will be raised, to the effect that as a consequence of the neglect of health, pain is felt, and that this consequence is quite sufficient to act as a punishment and to deter others from similar neglect, without the in- fliction of additional torture ; while, in cases of moral delinquency, the patient does nct suffer any pain beyond that which society may inflict. This idea can only be urged by those oho are accustomed to regard the mind as an im-

material power manifestieg itself in this world independently of any material instrument. Those mho are accustomed to consider the fact that the brain is

the instrument of the mind, and essential to all its maidfre,tat ions in this life, will not for a moment nittpr.MM that this, any more than any other organ, can he subject to derangement w ithelit the production of a consquent and propor- tionate amount of pain. All our faculties were MU:tided to be harmoniously gratified, and if we are subject to a deficiency of any one of them we lose a means of pleasure which it was intended we :should pessess; arid if; on the other hand, one is so much in excess as to create a great relative deficiency in -1 In the er,nseeeeoe e of nitoxtr nn harry ati,eity, the first :oterupt is to er the rust u ulm ut,,.meml the r. If lie moth(' van Le !mewl, ion stand+ a n'harwon orna,n.;;; voi.h•o;,1 insa.,, ,n1 thos en.capinQ Ivan pankimment; Im,t If there MIS he frond ti .e itolir anion of the coneurr,nt action of (nee othor faculty with that t1,-• im,1 to time marm2nn, tio• minds of his judge, an, Cornpin-teiy smutm,f. '1'h 1,, suimimm,se a matt kit armotle•r elfeet of a momentary 4,, 1 '...,1110,it the SlighteS1 apt, ll'elst nnuuii, e, 1.0.:.011111111, ni tire of gratmfying the d.••': :,....1.ropmsity.) it is just 1.,,isibie that ...Alm, mmmie., umi4lit iii fliS• paced to doem ;.-reee: A:non' ; if it steam id I. ron,l, that irty;au, murdered the Man tin had tak,.. tr,,re to, pockets a few shi II i n4i, or ereli mu elr ionAlonisce the cots. Iriction f,f his sominmin-s, of riii(111 eie1141 liii v,ii1mkty- AS ii tin RIO' 111.1',4011 iiiNoun,' mind such a raot,...e mail,' Ian ni.gi,icat. In ono ease, II,, de,time•tire tendency aols Iingly it, oppAition bn ail lig, tAlmr lacoliMs of tine mind ; int nine oilier caw,. tom, nint• StrattiVe slat aerpri.itice tend,qcies Sro united in action, and thcs • two act in oppo. sition to at the rernairlio4 faranRie.. 'limit difi,renee is VW, or cry flegre,!; that part of the harsh, wino, is the ifibtflIfeellt of the moral sentiments being in both cases his a state of impaired health or deficient developtnent, the rest, we are then confined to one source of pleasure, and lose the varied delights that would spring from a healthy development of all. He only can truly enjoy life who possesses in an harmonious state all the faculties which were implanted by his Creator as the means of such enjoyments; and in pros portion as this frame of mind is deranged, so arc our 111CIIIIS of happiness surely diminished. But not alone is pain thus negatively inflicted by the diminution of our means of pleasure, for the morbid emotions of an irregular mind act by sympathy 011 the rest of the system, and produce general uneasiness. There is, moreover, actual pain in the organ itself; for the moment the balance of mind is once disturbed, (and the true balance, as I have said, exists in no one,) the various faculties cease to act in their intended relation to each other ; and instead of that which gratifies one being the source of gratification to all, we are tormented, to the extent of our irregularity, by a constant sense of opposing desires. Having thus attempted to show that the infliction of punishment for dis- orders oithe brain is no more reconcileable to our ideas of justice than would be the infliction of punishment for disorders of tiny other organ of our physical frame, it is probable that my readers will suggest the following objections- 1. That the doctrine which I now advocate would destroy all ideas of re- sponsibility; 2. That it would leave all men to follow their inclinations with impunity ; and, 1 That as it would enforce no punislunent on offenders, it would present nothing that could deter others from following their example. But these objections, as I shall proceed to explain, are wholly without any solid foundation. And first, with regard to Responsibility. Although upon this great question legislators, lawyers, physicians, and moralists have differed and doubted from all time, ahnost all of them have been unanimous in the one great error of allowing that there existed "somewhere" a limns of demarcation where responsibility ceased, and irresponsibility by reason of insanity was to be allowed—the former being subject in eases of murder, &e. to the punishment of death, the latter entitling the culprit to immunity. The application of these views depends entirely, of course, upon the peculiar metaphysical opinions which may dwell in the minds or the juey before whom a criminal is tried ; marl as no fixed ideas exist, a person may be executed as in responsible" under the verdict of one jury, for time very same offence which, committed under like circumstances, might, in the eyes of another jury, entitle him to the plea of insauity. In illitstratiou of this fact, I cite from a numerous collection, the following remarkable case. CATHERINE ZIEGLER was tried at Vienna for tl:c murder of her bastard child : she confessed the act, and said she could not possibly help it ; she was forced to do it ; she could not anyhow resist the desire she felt to commit the murder. The frankness of this her confession, connected with favourable cir- cumstances, her good character, &c. induced the tribunal to pass a merciful sentence ; and on the ground of insanity, (which she did not herself plead,) she was acquitted, and at length let out of prison. But she told the court, that if they let her escape, they would be responsible for the next murder she com- mitted, for that if she ever had a chill1 again she should c...rtainly kill it. And so in fact she did. About ten months after her release from prison, she was de- livered of a child, which she K0011 murdered. Brought againt to her trial, she repeated her old story ; and added, that she became pregnant merely for the sake of having a chili to kill. It does not appear whether she was brought before the same judges as before; most likely not : she was executed for this second murder.

Cases also have been known where a criminal has been executed under the verdict of a jury, although the well-informed and more experienced judges of the court before whom the trial was had, entertained no doubt of his insanity. The following case occurred in one of the New England States. On the morn- ing of the 231.1 June 1833, ABRAHAM PRI:SC(11'T Went into a field with Mrs. COCHRAN, his foster-mother, to pick strawberries. They had been gone bat a short time, Whell PRESCOTT returned nearly to the house, and WaS heard cry- ing or whining so as to attract the attention of 11r. Coen RAN, who was left in the house reading. Upon inquiry of PRESCOTT why he cried, he replied, that "he had killed Sally " itu the pasture ; which upon examination proved trim: near to her was a billet of wood that had been a stake in the fence, with which belied struck her on the head. On his trial, it Was proved that PRESCOTT had in the month of January preceding, risen in the night about ten or eleven clock, and built a fire in the kitchen, preparatory to butchering swine, which was to have been done the next day; that Mr. and Mrs. COCHRAN slept in an ad- joining room ; that PitescorT, without waking them, took an axe and en- tered their room, and there inflicted on the head of each a severe blow, which left them entirely senseless. This extraordinary transaction was sup- posed at the time both by the physician and the wounded friends of PRESCOTT, to have been done in a fit of somnambulism. lie disclaimed any knowledge of . the affair, and was diligent and active in procuring relief. He had lived with Air. COCHRAN SOM10 sic or eight years, and had always been respectful and affectionate, particularly to Mrs. CocimitAX. Upou intiniry of him how he came to do so diabolical a deed, he stated that he had a violent toothache come on while in the strawberry-field, and sat down upon a stump; alter which ho disclaimed any knotvledge of what had happened till he Ilium' Mrs. (him lt.NX

dead before him. After his arrest Ire made various confessions in the gaol, so discordant, that the Chief Justice, in his charge to the Jury, declared them

worthy of no consideration whatever. 'I 'lie plea of tosanity was made mm Ins trial. But the Jttry gave a verdict of wilful murder ; and he was sentenced to be executed.

A second trial was had, in consequence of some irregularity in the proceed- ings of the First jury. At this trial there was little or nothing proved differing from the first ; and although the court evidently felt favourably disposed towards the prisoner, he was ContleMitad to death, anmi was executed. After the second trial and verdict, the Judges of the court before whom the trial was had, united in a petition to the Executive, that execution of the sentence might he postponed till the Legislature should be convened; that an opportunity might be all'orded for a cons It utation or punishment to perpetual confinement. This petition, signed by all the Judges of' the highest court in the State, coo- taitied the fimllowing laniamage—" The defilice net up by the counsel assigned mini (Prescott) was insanity ; and the very strange circumstances which at- tended and preceded time act, go far, in our opinion, to raise reasonable floubta whether he was at the time of sound mind." Speaking or the jurors who tried him, they say—" Hut the circumstances tending, in our opinion, to excite doubts of the prisoner's sarlity, do not appear to have operated with the same three upon their minds as upon ours." The extraordinary degree of confusion which prevails regarding the question of moral responsibility, and the Lecessity that exists for a inure perfect defini- tion of hisanity, was well exemplified in the recent trial in London of the im- becile EuwaltI) Caroni).

In this case it was asserted that the grandfitther of the culprit had !leen insane : it was fully proved that the fitther had been always subject to de- structive and suicidal marine; that the mother was affected by itervous delu- sions ; that one of her children lnul been born an idiot ; and that during the time when She was pregnant with the subject or the inquiry, she was exposed I, great distress, from frequently receiving from her hush:old blows on the head, which rendered her insensible ; and that on one occasion she was sub- jected to the greatest terror, by hie presentiog a loaded grin et her person. These things were coupled with proofs of habitual maithIC1 00 the part of the prisoner chiefly or a similar character to the following—" When he War out ho would get stinging-nettles, and beat children with them on their arms until they were quite blistered. Ile was sometimes given to laugh and cry violently at the same time, without any cause. When any one boxed his ears for doing any thing wrong, he would laugh in a very peculiar manner ; and he was often in the habit of breaking or throwing out of window different articles that came in his way." With all these facts before them, coupled with the absurdity of ids plans and the subsequent indifference of the prisoner—with the knowledge that by far the largest class of insane cases can be traced to hereditary causes— that the impressions produced upon the mind of the mother during the period of gestation are usually the source of peculiar dispositions on the part of the child—that the want of power to repress ordinary emotions is one of the most frequent symstoms of insanity—and that this disease, when it arises from trans- mission, usually assumes its most violent appearance at about the age at which the prisoner had arrived—we see the counsel for the prosecution, among the highest legal authorities of the realm, gravely attempting to assert the sanity of the individual, with the view of subjecting him to a verdict that shall in- volve the penalty of a public death ; and while, in common with the medical witnesses' they stated their utter inability to draw the line where responsibility ends and irresponsibility begins, perfectly willing to condemn in ignorance, and to leave the definition upon this point to future inquirers. In the evidence upon this trial, Dr. ClIOWNE stated—" I have patients often come to consult me who are impelled to connuit suicide without any motive for so doing. They tell me they are happy and comfortable in other respects, but that they have a strong desire to commit suicide." This showed that persons may be insane and yet possess a perfect knowledge of what they are about. 'The Jury listened to this evidence from a high authority ; and half an hour afterwards they were informed by one of the legal advisers of the Crown, that " if the prisoner was of unsound mind, unless he was so mad, so unconscious that he did not know ithat he was doing, or what would be the effect of his pulling the trigger, the plea of insanity would not avail !" Fortunately, the Jury determined otherwise. Yet it is evident that, amidst all the conflicting arguments by which they were perplexed, the fate of the prisoner completely hung upon the result of their theoretical opinions, instead of upon the opera- tion of any well-defined and rational law.

Thus we see, that the line of demarcation between responsibility and irre- sponsibility shifts place according to the imeginations of different individuals ; and that although the laws of the country are so narrowly defined that the Executive is not suffered to swerve a hair's-breadth in the administration of them, the law of responsibility is perfectly enveloped in doubt ; and its ad- ministration, upon which, in reality, depends the fits of the criminal, is left to the casual decision of, in many cases, uneducated jurors, whose metaphysical notions may be reasonably presumed to be somewhat capricious and indefinite.

The doctrine of responsibility, which appears to me to be alone consistent with reason, religion, and morality, is simply this—that, so (hr front the Creator havin sent into the world some beings who are responsible and others who are exempt from resyrnsibility, there is, in fact, no exception whatever ; and that every human being is alike responsible—responsible (according to the degree of his departure, either in mind or body, from a perfect state) to undergo the painful but benevolent treatment which is necessary to his cure. I am, &c. M. B. S. Clapham New Park, 16th October 1840.