Page:Popular Science Monthly Volume 5.djvu/98

88 ; and, secondly, whether and how far free-will is excluded by them. In the case of a partially insane person acting to all appearances from an ordinary criminal motive, the act must be weighed in relation to these two questions; and, if they are answered in the negative, he would clearly be amenable to punishment.

It is abundantly evident from this short review of the codes of other countries that nothing can be said in justification of the superstitious reverence with which English lawyers cling to their criterion of responsibility. It is hard to see why they should suffer a greater pang in giving up this formula than they did in giving up other formulas which, having had their day and done much evil work, were abandoned. The "wild-beast theory," once so sacred, has been relegated to the record of human mistakes; the theory of a knowledge of right and wrong in the abstract which followed it was, in like manner, repudiated as men became better acquainted with the phenomena of mental derangement; surely, then, the metaphysical theory of a knowledge of right and wrong in relation to the particular offense, which finds little or no favor out of England, and which is condemned unanimously by all persons, in all countries, who have made insanity their study, may be suffered to join its predecessors, without danger of injury to what all those who approve and those who disapprove it desire the strict administration of justice. Physicians have no right—to interfere in the administration of the law, which is the judge's function, nor is it their duty to decide upon what is necessary to the welfare of the state, that being the legislator's work; their concern is with the individual, not with the citizen. But they plainly have the right to declare that the nature of a crime involves two elements: first, the knowledge of its being an act contrary to law; and, secondly, the will to do or to forbear doing it, and to point out that there are some insane persons who, having the former, are deprived by their disease of the latter; who may know an act to be unlawful but may be impelled to do it by a conviction or an impulse which they have not the will or the power to resist. Recognizing the obvious difference between him who will not and him who cannot fulfill the claims of the law, it is their function to point out the conditions of disease which constitute incapacity, and, when they find a false fact solemnly enunciated as a rule of law, to bring forward into all the prominence they can the contradictory instances which their observation makes known to them. "That cannot be a fact in law which is not a fact in science; that cannot be health in law which is disease in fact. And it is unfortunate that courts should maintain a contest with science and the laws of Nature upon a question of fact which is within the province of science and outside the domain of law."