Page:Encyclopædia Britannica, Ninth Edition, v. 13.djvu/122

 112 INSANITY in extreme cases. About the beginning of this century a very considerable change commenced. The public attention was very strongly attracted to the miserable condition of the insane who were incarcerated in asylums without any efficient check or inspection; and at the same time the medical knowledge of insanity entered on a new phase. The possibility and advantages of a better treatment of insanity were illustrated by eminent physicians both in France and England ; its physical origin became generally accepted ; its mental phenomena were more carefully observed, and its relation was established to other mental conditions which had not hitherto been regarded as insane in the proper sense of the word. From this period we date the commencement of legislation such as that known in England as the Lunacy Acts, which aimed at the regulation and control of all constraint applied to the insane. And at the same time we find the commencement of a new state of matters in the courts. Hitherto, the criteria of insanity had been very rude, and the evidence was generally of a loose and popular character ; but, whenever it was fully recognized that insanity was a disease with which physicians who had studied the subject were peculiarly conversant, expert evidence obtained increased importance, and from this time became prominent in every case. The newer medical views of insanity were thus brought into contact with the old narrow conception of the law courts, and a controversy arose in the field of criminal law which in England, at least, is not yet settled. The fact of insanity may operate in law (1) by exclud ing responsibility for crime ; (2) by invalidating legal acts ; (3) by affording ground for depriving the insane person by a legal process of the control of his person and property ; or (4) by affording ground for putting him under restraint. 1. Responsibility for crime may be destroyed by insanity. The theory of the limitations under which this plea is recognized by English law is first clearly stated by Hale (Pleas of the Croivn, i. c. 2) in these terms : &quot;When there is no will to commit an offence there can be no transgression, and, because the choice of the will presupposes an act of the understanding, it follows that when there is a total defect of the understanding there is no free act of the will in the choice of things or actions.&quot; This doctrine was closely followed by the courts, and in the subsequent cases we find nothing admitted in defence short of a total defect of the understanding. In later times, however, frequent attempts were made on the part of the defence to break through this stringent rule, and in 1843 the case of Macnaughton, which resulted in an acquittal, attracted so much public attention, and seemed to cast so much doubt on the law as previously understood, that a series of questions were put by the House of Lords to the judges with the view of determining conclusively how the law really stood. These answers practically affirmed the old law. They decided that, in order to establish a defence on the ground of insanity, &quot; it must be clearly proved that at the time of the committing of the act the party accused was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it he did not know that he was doing wrong.&quot; These answers are now the ruling authority both in England and Scotland, although there have been undoubtedly many instances in which the defence of insanity has been sustained either through the judge abstaining from pressing the law very strictly or from the jury taking a wider view of the case. Frequently, also, a more lenient view has practically been given effect to by the intervention of the home secretary, many of the most puzzling cases having been disposed of in this way. When the prisoner is unable to plead or has been acquitted on the ground of insanity, the jury are obliged to state whether they find the prisoner to be insane, and in that case he is ordered to be detained during her majesty s pleasure ; and the home secretary has power to order him to be detained at such place as he may direct. Prisoners who become insane while in prison upon any form of legal process may also be removed by warrant of the home secretary to whatever asylum he thinks fit. All these are known technically as criminal lunatics, and an asylum has been provided for their detention at Broad- moor, from which they can only be discharged by warrant of the home secretary. (39 & 40 Geo. I IT. c. 94 ; 3 &amp;lt;k 4 Viet. c. 54 ; 23 & 24 Viet. c. 65 ; 27 & 28 Viet. c. 29 ; 30 & 31 Viet. c. 12.) The law thus clearly laid down by the courts has been strongly condemned by most medical authorities, who maintain that it is founded upon an ignorant and imperfect view of insanity. There can be no doubt that insanity does not wholly or even chiefly affect the will through the intellectual faculties. The disturbance of emotion and feeling is at least of equal consequence. We have cases where a criminal act seems to spring entirely from this source, and very many others where we have a complex of morbid intelligence and feeling which it is impossible to disentangle. In cases like those it is impossible by any analysis to separate the intellectual from the emotional phenomena, and to assess the amount of intelligence which, although morbid or defective, ought to be sufficient to restrain the equally morbid emotional condition. It seems clear that in judging of responsibility we ought to take the mental condition of the insane as a whole ; and the present view of the law seems to have originated partly from ignorance of the more obscure phenomena of insanity, and partly from the metaphysical conception of a will whose freedom is only limited by its intelligence. It must, however, be remembered, on the other hand, that the courts have had serious difficulties to encounter. The views of insanity and consequent irresponsibility presented to them in medical evidence were often so vague that they seemed capable of indefinite extension, and there is no subject on which the experts have appeared so much at variance with each other. But these difficulties, however much they may call for the watchfulness of the courts, seem no sufficient ground for limiting the effect of insanity in relation to responsibility to the intellectual faculties. Such a limitation seems opposed, not merely to our present knowledge of insanity, but to the experience of ordinary psychology. These controversies are not confined to England. In the United States the law may generally be said to be the same as that of England, but, as the judges have been by no means so tightly bound down as the English judges have been by the opinions in Macnaughton s case, a considerable tendency has been shown in many (or indeed most) States to take a more liberal view of the question. In France the provision of the Code Napol6on, &quot; il n y a ni crime ni delit lorsque le prdvenu e&quot;tait en e&quot;tat de de mence,&quot; depends for its effect upon the interpretation given to the word demence, and for some time the tribunal* were inclined to interpret it in such a manner as to make the law very much the same as that of England ; but the view of the physicians is now generally prevalent. In Germany the matter is dealt with in a section ( 51,7i . G.B.} of the criminal code, which was the result of very careful discussion both by physicians and lawyers. It runs thus : &quot; There is no criminal act when the actor at the time of the offence is in a state of unconsciousness or morbid dis turbance of the mind, through which the free determination of his will is excluded.&quot; 2. In the case of all civil acts, the general rule is that capacity must be measured in relation to the act. The mere fact of insanity will not in itself make void a will, for example, if it appears that the testator had a fairly clear