Esquirol, the parliamentary debates on the asylums of Bedlam and York, and the reports presented under the auspices of La Rochefoucauld to the National Assembly of 1789, contain a picture unique in its sadness" a picture of prisons in which lunatics, criminal lunatics, and criminals are huddled together indiscriminately without regard to sex or age, of asylums in which the maniac, to whom motion is an imperious necessity, is chained in the same cell with the victim of melancholia whom his ravings soon. goad into furious madness, and of hospitals in which the epileptic, the scrofulous, the paralytic and the insane sleep side by side a picture of cells, dark, foul, and damp, with starving, diseased, and naked inmates, flogged into submission, or teased into fury for the sport of idle spectators.

Whatever share indifference to human suffering may have had in all these atrocities and all this misery, it is likely that thoughtlessness, superstition, and ignorance have had a much larger share. We have noticed that, when a certain deed gives a shock to public feelings, the circumstances in which it has been committed are easily lost sight of. Considering that the Chinese punish persons who have killed their father or mother by pure accident, it is not surprising that they punish madmen who kill a parent wilfully. Even a man like Smollett, the well-known writer, thought it would be neither absurd nor unreasonable for the legislature to divest all lunatics of the privilege of insanity in cases of enormity, and to subject them "to the common penalties of the law." Moreover, as we have seen, madness is often attributed to demoniacal possession, and in other cases it is regarded as a divine punishment. From a pagan

1 Wood-Renton, Moral Mania,' in Law Quarterly Review, iii. 340.

2 Smollett, quoted by Tuke, op. cit. p. 96.

See also Doughty, Arabia Deserta, i. 258 sq.; Westermarck, Nature of the Arab Ginn illustrated by the Present Beliefs of the People of

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Morocco,' in Jour. Anthr. Inst. xxix. 254; Andree, op. cit. p. 2 sq.; Tuke, op. cit. p. 1; Pike, History of Crime in England, i. 39; von Krafft-Ebing, op. cit. p. 5.

4 Plato, Leges, ix. 854. Esquirol, Des maladies mentales, i. 336.

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point of view this would make the lunatic an object of pity or dread, rather than of indignation; as the Roman legislator said, the insane murderer ought not to be punished, because his insanity itself is a sufficient penalty.1 But in Christian Europe, where up to quite recent times men were ever ready to punish God's enemies, a lunatic, who was supposed to have the devil in him, or whose affliction was regarded as the visitation of God upon heresy or sin, was a hateful individual and was treated accordingly. Finally, we have to take into account that the sensibility of a lunatic was thought to be inferior to that of a sane person; that the mental characteristics of insanity were little understood; and that, in consequence, many demented persons were treated as if they were sane because they were thought to be sane, and others, though recognised as lunatics, were treated as responsible because they were thought to be responsible. The history of the English law referring to insanity bears sad testimony to the ignorance of which lunatics have been victims in the hands of lawyers.

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From the year 1724 there is a dictum of an English judge to the effect that a man who is to be exempted from punishment "must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast.' 74 From the beginning of the nineteenth century, the power of distinguishing right from wrong in the abstract was regarded as the test of responsibility; whilst in the existing doctrine, dating from the trial of McNaughten in 1843, the question of knowledge of right and wrong, instead of being put generally and indefinitely, is put in reference to the particular act at the particular time of committing it." This series of doctrines certainly shows a noteworthy progress

1 Digesta, i. 18. 14; xlviii. 9. 9. 2 Wood-Renton, loc. cit. p. 339. 3 Ibid. p. 339.

Howell, Collection of State Trials, xvi. 765.

5 Harris, Principles of the Criminal Law, p. 18. Kenny, op. cit. p. 53.

6 Clark and Finnelly, Reports of Cases decided in the House of Lords,

X. 202.

in discrimination. given by the fourteen English judges to the questions put to them by the House of Lords in consequence of M'Naughten's case still display an ignorance which would nowadays be hardly possible. In reply to the question "If a person under an insane delusion as to existing facts, commits an offence in consequence thereof, is he thereby excused?"-the judges declared that, on the assumption that he labours under such partial delusion only, and is not in other respects insane, . . . he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment." The mistake committed in this answer does not lie in the conclusion, but in the premise. "Here," as Professor Maudsley observes, "is an unhesitating assumption that a man, having an insane delusion, has the power to think and act in regard to it reasonably; that, at the time of the offence, he ought to have and to exercise the knowledge and self-control which a sane man would have and exercise, were the facts with respect to which the delusion exists real; that he is, in fact, bound to be reasonable in his unreason, sane in his insanity." 2 Modern science, however, teaches us another lesson. It has shown that a delusion of the kind suggested never stands alone, but is in all cases the result of a disease of the brain which interferes more or less with every function of the mind, and that few insane persons who do violence can be truly said to have a full knowledge of the nature and quality of their acts at the time they are per

But at the same time the answers

1 Ibid. x. 211.

2 Maudsley, op. cit. p. 97.

forming them. A perhaps still greater defect in the doctrine of the fourteen judges is the absence of all reference to the influence of insane impulses; but with this subject we are not concerned at present. In this connection my object has been merely to show that the irresponsibility of the insane, in so far as it consists in intellectual derangement, has been generally recognised in proportion as their intellectual derangement has been recognised, and that the exceptions to this rule are explicable from beliefs which, though materially affecting the treatment of the insane, have no reference to the principle of responsibility itself.

There are temporary states of mind in which the agent no more knows what he is doing than an idiot or a madman, such as somnambulism, narcosis, fury. For these states, of course, the rule holds good, that nobody is responsible for what he does in ignorance, although he may be responsible for his ignorance. Responsibility in connection with anger and rage will be more appropriately dealt with in another place. I shall here restrict myself to the case of drunkenness.

A person is irresponsible, or only partly responsible, for what he does when drunk, according as he is ignorant of the nature of his act, as also in so far as the intoxicant contributed to the rise of some powerful impulse which determined his will. If he commits an offence in a state of extreme intoxication, he can reasonably be blamed only for what he did when sober. If he made himself drunk for the purpose of committing the offence, then the offence is intended, and he is equally responsible for his act as if he had accomplished it straightway. If he became intoxicated without any fault of his, for instance, if he did not know, and could not know, the intoxicating quality of the liquor which made him drunk, he is free from blame. But in other cases he is guilty of heedlessness, or rashness, if he foresaw the danger, of blamable indifference to 1 Griesinger, Mental Pathology and Therapeutics, p. 72 sq. Maudsley, op. cit. p. 96.

the probable consequences of his act. theory of the question. But we cannot accurately expressed in practice.

This is the clear expect to find it

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Very generally drunkenness is recognised as a ground of extenuation. We hear from various sources that the North American Indians were exceedingly merciful to intoxicated offenders. According to Charlevoix, the Iroquois "suffer themselves to be ill used by drunken people, without defending themselves, for fear of hurting them. If you endeavour to shew them the folly of this conduct, they say, Why should we hurt them? They know not what they do. Even if a savage kills another belonging to his cabin, if he is drunk (and they often counterfeit drunkenness when they intend to commit such actions),' all the consequence is, that they pity and weep for the dead. It is a misfortune (they say), the murderer knew not what he did.'"2 James makes a similar statement with reference to the Omahas. In his description of the aborigines of Pennsylvania, Blome observes, "It is rare that they fall out, if sober; and if drunk they forgive it, saying, it was the drink, and not the man that abused them.' Benjamin Franklin tells us of some Indians who had misbehaved in a state of intoxication, and in consequence sent three of their old men to apologise; "the orator acknowledged the fault, but laid it upon the rum, and then endeavoured to excuse the rum." 5 The detestable deeds which men did under the influence of pulcre, or the native Mexican wine, the Aztecs attributed to the god of wine or to the wine itself, and not in the least to the drunken man. Indeed, if anybody spoke ill of or insulted an intoxicated person, he was liable to be punished for disrespect to the god by which that person was supposed to be possessed.

1 Cf. Hennepin, op. cit. p. 71.

2 Charlevoix, op. cit. ii. 23, 25. According to Loskiel (History of the Mission of the United Brethren among the Indians in North America, i. .16), the Iroquois, though they laid all the blame on the rum, punished severely

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