Page:Federal Reporter, 1st Series, Volume 10.djvu/205

 GUITBAU'S CASE. 193 �as we have already seen, eitlier in psychology or law. Nor is "irresistible impulse " convertible with passionate propensity, no matter how strong in persons not insane. In other words, the " irresistible impulse " of the lunar tic which confera irresistibility, is essentially distinct from the passion, how- ever violent, of the sane, which does not confer irresponsibility. As this dis- tinction is of great importance, we will now notice the reason on which it rests. �Supposing the mind to be sane, and that there is a capacity of judging between right and wrong, there is psychologically no impulse which the law can treat as irresistible. The will is either free, which settles the question at once, or it is directed by the strongest motives, as the necessitarian holds. Now, taking the latter hypothesis, the question arises, supposing the will to follow by necessity the strongest motive, whether it is just to punish the wrong-doer for such necessary act. That it is, is afflrmed by the leading repre- sentatives of the necessitarian school. " It is said," says Mr. Bain, (Mental and Moral .Science, London, 1868, p. 404,) " that it would not be right to pun- ish a man unless he were a free agent; a truism, if by freedom is meaut only the absence of outward compulsion; if in any other sense, apieceofabsurdity. Ifit is expedient to place restrictions upon the conduct of sentient heings, and if the threatening of pain operates to arrest such conduct, the case for ptm- ishment is mode out. "We must justify the institution of law, to begin with, and the tendency of pain to prevent the actions that bring it on, in the next place. * * * Granting these two postulates, punishability (carrying with it, in a well-constituted Society, responsibility) is amply vindicated. * * • Withdraw the power of punishing, and there is leftno conceivable instrument of moral education. It is true that a good moral discipline is not wholly made up of punishment; the wise and benevolent parent does something, by the metliods of allurement and kindness, to form the virtuous dispositions of his child. Still, we may ask, was ever any human heing educated to the sense of right and wrong without the dread of pain accompanying forbidden actions f It may be afflrmed with safety that punishment or retribution, in some form, is one-half of the motive power to virtue in the very best of human beings, while it is more than three-fourths in the mass of manl^ind." . Now, erroneous as is Mr. Bain's position that the primary ground of punishment is prevention to be effected by fear, there can be no question that on the neces- sitarian hypothesis his reasoning is sound. �Mr. J. S. Mill, in his examination of Sir \V. Hamilton's philosophy, sup- poses the case of a race of men whose hereditary tendencies to mischief are as great and uncontrollable as those of lions and tigers, than which no case brought Jip by the advocates of the unpunishability of those subject to irre- sistible propensities could be more strong. Having supposed such men, he asks whetlier we would not treat them precisely as we would a wild beast, even thongh we supposed them to act necessarily. The higbest theory of fatal- ism, he infers from this, is not inconsistent with the infliction of penalties on the ofEender. The question that arises, then, is, is such punishment just ? Can we justly punish a man for that which he cannot help? And he argues that we certuinly can, if announcing beforehand that such ofienders are to be ouuished; V.10,no.2— 13 ��� �