that of inability to distinguish right from wrong, and some consider that the one embraces the other.

The uncontrollable impulse is referred to by Shakespeare in the lines,

"Strange it is

That nature must compel us to lament

Our most persisted deeds."

Mansfield refers to it as the result of an obsession, and says that Shakespeare carries the constant idea that tragedy springs from the treachery caused by some obsession. The obsession of lust in Antony is the uncontrollable impulse, but not such as could, by any counsel, be twisted into a defense on the plea of insanity. Even if it were it would be no more grotesque to me than that of the defense in the Thaw case.

Were all of these cases honestly dealt with, there would still be but little trouble in arriving at fair conclusions, but it is where the defense is plead for no other purpose than to beweep before the simple gulls in the jury box, that the fluke becomes a menace to justice.

Possibly, when we are far advanced in the science of eugenics and practical psychology, it may be possible to blame society itself, "when we in our vicousness grow hard

O misery on 't,"

Now, however, each for himself is held responsible for his origin and his mode of action, and his defense must oft times be clothed in "naked villainy

With old odd ends stolen out of holy writ."

There are two main questions to consider relative to the establishing of a defense thro the claims of irresponsibility by reason of insanity; first, as to whether the insane should be punished and how far it should be mitigated, and second, the careful analysis leading to a correct estimate of what may justly be called irresponsibility by reason of insanity.

Insanity is usually considered to be synonymous with mental disorder, insanity and mental disorder being different names for the same thing. Mercier takes strong grounds against this common He claims that insanity is much more than mental disorder; and that mind is often disordered without any vestige of insanity.

error.

I shall quote here ad. lib. from Mercier, in his book on "Crime and Insanity."

What is characteristic of insanity is disorder of conduct; and conduct may be strange without being disordered. Disorder of mind is always present in insanity, but there is much disorder of mind that is not insane.

We hear of a person that he is not insane because he has no delusions. Such a conclusion does not necessarily follow. Apart altogether from delusion, and disorder of judgment, the mind may be disordered in any of its other departments; and this disorder may or may not amount to insanity. Feeling is often disordered without any delusion. The subject of disordered feelings is depressed and miserable, or is exhilarated and joyous, out of all proportion to the depressing or exhilarating nature of his circumstances; and this depression or exhilaration is disorder of the mind. But it is by no means necessarily insane; for the subject of it knows perfectly well how irrational and uncalled for his depression or elevation of feeling is; and he may seek advice to rid himself of it. The fear of being in open or closed spaces is mental disorder, and the sufferer knows full well how unreasoning his fears are, but he cannot surmount them. There is no insanity about the condition for he understands it as well as any other person.

So in the victims of obsession and imperative idea, the mind is disordered. They feel within themselves an urgent impulsion to do things that are abhorrent to them, or are possessed with ideas or thoughts which they know to be absurd. A person feels impelled to jump from the roof of a high building; a mother feels impelled to injure her child; or a religious person has an impulse to blaspheme; or there is impulse to appropriate the property of another. The mind of such persons is disordered, but they recognize the condition and are not insane.

There is the moral disorder, which is disorder of mind, and may amount to actual insanity, but is unaccompanied by any delusion or by any discoverable disorder of intellect. In such cases the intellect may be very acute, and the reasoning powers equal to, or above, the average; but the person affected has an incurable kink in his mind, which renders him insensible to the obligations of morality.

We must recognize that there are divisions or levels of both mind and conduct; that mind and conduct may be simultaneously and concurrently disordered on any level, with or without any disorder of other levels; and that it is only when the highest level is disordered that insanity exists.

Various illustrations are used to show more clearly the relationships of the different levels. The lowest levels are likened to the noncommissioned officers in the army. There is a small authority over a small department, but work under orders. Over these are a group of higher officials, with more power and larger initiative. Centers of middle rank correspond to the colonels of the regiments. These centers control certain acts and movements which are done instinc

tively and automatically, and do not need the higher order of deliberation and choice.

Supreme over all is the commander-in-chief of the army. It is the function of this highest faculty to deliberate and determine questions of policy; what, how, when and where to act. The highest faculty of mind is the ability to choose.

In insanity this faculty is not necessarily lost, tho in the deeper degrees it is much impaired; but it is disordered. In order to compass a certain end, conduct is chosen which is plainly calculated to defeat that end. Such conduct and such choice are insane.

Mind and conduct go together. Their interaction on each other is close, constant, and inextricable; and disorder of the one always, no doubt, accompanies disorder of the others; tho the two disorders are not always equally prominent, or equally recognizable. Whatever level is disordered, the disorder is manifested both in mind and conduct, on that level; and hence, with crude disorder of mind goes crude disorder of conduct; and with elaborate disorder of mind goes elaborate disorder of conduct.

Examples might be given of disorder at varying levels of the crude sort. The obsession to do unreasonable, objectionable, or graver acts, the disorder is on a level that is high, but it not the highest. At this level of disorder the mind will often interpose and the victim may place himself under voluntary restraint, in order that he may be kept from performing the disorderly acts.

It is only when the highest levels of mind and conduct are disordered that insanity exists; and the test of insanity is, roughly, the non-recognition of the disorder. A disorder of mind that is recognized and known to be disorder, is not insane; though the disorder of lower levels may be so tumultuous and overpowering as to be beyond that competency of the higher levels to keep it in check; and then, as in the case of the obsessed person who applies to be restrained, much the same measures must be taken as in actual insanity. In true insanity, the insane person does not recognize that either mind or conduct is disordered. He thinks that his judgment, feelings, and acts are normal; for, in him, the disorder is in the faculties of judgment and choice, and the correcting faculties being in themselves disordered, rectification is no longer possible.

Up to the present it has not been possible for the legal and the medical phases to be harmonized. Probably the strongest bar to this proper harmony is the circumstances under which the matter is brought up as a defense, the fees which are paid to the experts serving to alter their judgment, and absolute truth and veracity is not the common lot, while the sort who can be bought is ever within

call. It is difficult enough to solve the problems at best, but the wilful distortion of the truth is what increases the difficulty.

Insanity varies in what of consciousness it involves, in width, area, or even depth. It may be widespread, or extremely limited. It may include all of consciousness, or only a small part of a single faculty. In duration it varies from a few seconds to a lifetime. It is true that crime may be committed as the result of transient insanity, lasting only a few seconds or minutes, and a person may be insane all their life without being prompted to commit a crime. Crime may be the result of widespread insanity, or of a single delusion.

Mercier believes that criminals are no more exempt from crime than are other people, and that when an insane person commits a crime that is not the consequence of his insanity, it is no more just or proper to excuse him from punishment for that crime than to excuse a sane person.

In the forms of insanity which are most frequently associated with crime, Mercier places drunkenness at the head, and claims that drunkenness is as purely insanity as is any other form. He says that "it is literally and exactly true that drunkenness is insanity; that as long and as far as a man is drunk, so long and so far is a man insane. Alcohol is but one of many poisons that may produce insanity." "There are certain cyclical phases in most cases of recurrent insanity, which are exhibited punctually in the insanity of drunkenness."

The law of England lays down the maxim that drunkenness is no excuse for crime; so that the drunkard cannot enter the plea that he did not know what he was doing. Yet, whenever a prisoner is charged with a crime into which intention enters as a factor, it is open to the defense to show that he was too drunk to be capable of forming an intention; and if the plea is established, the offender cannot be convicted of the particular offense to which intention is necessary, though he may be convicted of a minor offense, into which intention does not enter.

Next to drunkenness, those suffering from feebleness of mind leads to crime. And next come the epileptics. Their crimes are almost always crimes of violence. The important aspect of epilepsy, to the criminologist, is not that some insane are epileptic, nor that some epileptics are insane; but that all epileptics are subject to lapses of consciousness, during which they do things without knowing that they do them, and without retaining thereafter any recollection whatever of what they have done. Of the ordinary convulsion he knows nothing; and there is often a period of action between the fit and the consciousness, be the fit the convulsion, or merely the twitching of the eyelid, during which acts are performed which are never

remembered by him. These acts may be so nearly normal as to be distinguished with difficulty from the normal, or they may be criminal, in which case it is of the greatest importance to know if they were committed in the automatic stage of epilepsy. Certain rules have been formulated to assist in forming a correct diagnosis in such cases. The cases of masked epilepsy are the most baffling, as there is no history of epilepsy, neither is there any signs.

Following the epileptics come the paranoiacs, or those afflicted with systematized delusions. They believe that they are the subject of a plot; and in some form or other this deluded belief of the plot is present.

General paralysis of the insane is reponsible for a small number of crimes. They are the expansive sort who think that they own the earth.

Deep melancholy is the cause of crime, usually suicide, and, too often, murder of those most loved by them.

There are two main questions to consider in relation to the establishing of a defense through the claim of irresponsibility.

First. As to whether the insane person should be punished and degree.

Second. The careful analysis leading to correct estimate of what may justly be called irresponsibility by reason of insanity.

Although I have quoted Mercier at length because I consider that a correct estimate of the nature and extent of the insanity is the only guide we have for action in a court of justice, I do not consider that Mercier is a high authority or a close reasoner, and there is much ambiguity in what he has to say. But he travels the right road and the ground he covers if clearly gone over would elucidate matters a great deal for the courts.

It is for the physician to say if the defendant is insane; it is for the law to deal with him justly. On the part of the counsel he must choose the alienist; let him choose wisely. Of physicians, Gomprez says in "Greek Thinkers," "The best physicians must be the best observers, but the man who sees keenly, who hears clearly, and whose senses, powerful at the start, are sharpened and refined by constant exercise, will only in exceptional instances be a visionary or a dreamer." The wisest are none too wise.

March 1912.

Modern Theories of Punishment.

By W. S. Clark

Probably the most difficult, of all the difficult problems connected with criminology, is that pertaining to the treatment of the offender