Page:Popular Science Monthly Volume 5.djvu/94

84 one will be found to uphold this state of things as satisfactory, although there is great difference of opinion as to the cause of the uncertainty; the lawyers asserting that it is owing to the fanciful theories of medical men who never fail to find insanity where they earnestly look for it, the latter protesting that it is owing to the unjust and absurd criterion of responsibility which is sanctioned by the law. Meanwhile, it is plain that, under the present system, the judge does actually withdraw from the consideration of the jury some of the essential facts, by laying down authoritatively a rule of law which prejudges them; the medical men testify to facts of their observation in a matter in which they alone have adequate opportunities of observation; the judge, instead of submitting these facts to the jury for them to come to a verdict upon, repudiates them by the authority of a so-called rule of law, which is not rightly law, but is really false inference founded on insufficient observation.

In America it would seem that matters have been little better than they are in this country, the practice of the courts, like that of the British courts, having been diverse and fluctuating. In many instances juries have been instructed, in accordance with English legal authorities, that, if the prisoner, at the time of committing the act, knew the nature and quality of it, and that in doing it he was doing wrong, he must be held responsible, notwithstanding that on some subjects he may have been insane; that, in order to exempt a person from punishment, insanity must be so great in extent or degree as to destroy his capacity of distinguishing between right and wrong in regard to the particular act. But in other instances the instructions of the judges have been different. In the case of State Wier, Grafton, 60, 1864, Chief-Justice Bell charged the jury thus: