The Prisoner at the Bar: Sidelights on the Administration of Criminal Justice

by Arthur Cheney Train

And the fact that they have obeyed their common sense rather than the law is the only reason why our present antiquated and unsatisfactory test of who shall be and who shall not be held "responsible" in the eye of the law remains untouched upon the statute-books. Because its inadequacy is so apparent, and because no experienced person seriously expects juries to apply it consistently, it fairly deserves first place in any discussion of present problems.

Thanks to human sympathy, the law governing insanity has had comparatively few victims, but the fact remains that more than one irresponsible insane man has swung miserably from the scaffold. But "hard cases" do more than "make bad law," they make lawlessness. A statute systematically violated is worse than no statute at all, and exactly in so far as we secure a sort of justice by evading the law as it stands, we make a laughing-stock of our procedure.

The law is, simply, that any person is to be held criminally responsible for a deed unless he was at the time laboring under such a defect of reason as not to know the nature and quality of his act and that it was wrong.

This doctrine first took concrete form in 1843, when, after a person named McNaughten, who had shot and killed a certain Mr. Drummond under an insane delusion that the latter was Sir Robert Peel, had been acquitted, there was such popular uneasiness over the question of what constituted criminal responsibility that the House of Lords submitted four questions to the fifteen judges of England asking for an opinion on the law governing responsibility for offences committed by persons afflicted with certain forms of insanity. It is unnecessary to set forth at length these questions, but it is enough to say that the judges formulated the fore-going rule as containing the issue which should be submitted to the jury in such cases.[51]

Now, with that commendable reverence for judicial utterance which is so characteristic of the English nation, and is so conspicuously absent in our own country, it was assumed until recently that this solemn pronunciamento was the last word on the question of criminal responsibility and settled the matter once and forever. Barristers and legislators did not trouble themselves particularly over the fact that in 1843 the study of mental disease was in its infancy, and judges, including those of England, probably knew even less about the subject than they do now. In 1843 it was supposed that insanity, save of the sort that was obviously maniacal, necessitated "delusions," and unless a man had these delusions no one regarded him as insane. In the words of a certain well-known judge:

"The true criterion, the true test of the absence or presence of insanity, I take to be the absence or presence of what, used in a certain sense of it, is comprisable in a single term, namely, delusion.... In short, I look on delusion ... and insanity to be almost, if not altogether, convertible terms."[52]

This in a certain broad sense, probably not intended by the judge who made the statement, is nearly true, but, unfortunately, is not entirely so.

The dense ignorance surrounding mental disease and the barbarous treatment of the insane within a century are facts familiar to everybody. Lunatics were supposed to be afflicted with demons or devils which took possession of them as retribution for their sins, and in addition to the hopelessly or maniacally insane, medical science recognized only a so-called "partial" or delusionary insanity. To-day it would be regarded about as comprehensive to relate all mental diseases to the old-fashioned "delusion" as to regard as insane only those who frothed at the mouth.

But the particular individual out of whose case in 1843 arose the rule that is in 1908 applied to all defendants indiscriminately was the victim of a clearly defined insane delusion, and the four questions answered by the judges of England relate only to persons who are "afflicted with insane delusions in respect to one or more particular subjects or persons." Nothing is said about insane persons without delusions, or about persons with general delusions, and the judges limit their answers even further by making them apply "to those persons who labor under such partial delusion only and are not in other respects insane"—a medical impossibility.