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§ S31. There is one difference, however, between the police of
the courts and that of the conscience. The former, in order to
scent out the crime, often assumes the garb of the criminal. Yidocq
goes into the thieves' den to discover the thieves' secrets. He re-
calls memories of past crime, so as to induce a similar communica-
tiveness in his associates ; he gloats enticingly over the pleasures of
guilt ; he incites to fresh adventures by which the criminal may be
entrapped. But it is not so with the angels of the conscience.
They warn, they appeal, they implore, and this in tones the tender-
est and holiest. Their garb is that of light, telling from whence
they come. While they announce beforehand who they are, and
use the most touching entreaties to prevent wrong, they declare it
will be theirs afterwards to avenge that wrong if done ; — while they
leave no secret as to their awful mission, they gently plead by all
the powers that persuasion can give, that vengeance may not be
theirs to inflict. The memories they recall are not of early guilt,
but of early innocence — of periods when no mad or polluted com-
766



GENERAL CONCLUSIONS. [§ 832.

rade stood by, inciting to ruin, but some tender friend or relative,
uttering counsels of love. They paint not the pleasures of guilt,
but its misery, and they point to scenes of peace to which guilt
cannot reach. It is not theirs to avenge until their final entreaties
are exhausted ; and, when at last they hurry away to give their
last report, he whose guilt is disclosed cannot but say : " This, your
office of exposure as well as of restraint, I knew beforehand. You
told me this — you told me that my sin, if unchecked, would find
me out."

§ 832. It is here that the presumptions from this agency rise a
step higher than those from an earthly police. The latter tells of
a government, comprehensive, sagacious, and just, so far as its
general object of punishing crime is concerned, but of a government
which at the same time deals in punishment alone, and that by in-
struments which are often as polluted as the evils they are to cor-
rect. The former tells of a government, austere it is true, yet very
tender ; moving to holiness through holiness ; permeating not merely
the outer life, but the secrets of the heart ; everywhere warning
and entreating, while everywhere judging ; making punishment
certain and terrible, and yet so working it up into the consequences
of the criminal's voluntary act as to render it his own choice. So
it is that while a police of mere detection and exposure argues an
executive of mere power, a police of love argues an executive of
mercy ; a police that is omnipresent, an executive that is omni-
present ; a police that for a time entreats, warns, and dissuades, an
executive that recognizes a temporary probation ; a police that
ultimately and irrevocably avenges, an executive that after a free
probation judges definitely and finally. It is here we have brought
before us the elements of that Christian Providence which the courts
invoke as the foundation of public justice. In crime itself, there-
fore, we find the proof of that Chief Magistrate who avenges crime.

So it is that while the court-house derives its sanctions from this
Supreme Power, it contributes to the proof of the existence of this
Power an independent share of evidence. No witness can be sworn
until he declares his belief in a future state of rewards and punish-
ments ; no trial can take place without strengthening the evidence
on which this state rests. Human justice falls back on divine for its
support ; divine justice appeals to human as its witness. The penal
precepts of the common law professedly find their basis in the dic-

767



§ 833.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

tates of an enlightened Christian conscience ; the divine sanction of
this conscience is nowhere so fully shown as in the course of a trial
at common law. The present discussion will not be without its
value if, by illustrating these truths, it shows how close is the con-
nection between the divine law and the human ; and how the science
of jurisprudence, while it draws down its strength from heaven to
earth, may still, if rightly studied, lead its votaries from earth to
heaven.

§ 833. The conclusion which has just been reached is not with-
p . , out its value in determining the vexed question of the

mentis objcct of punishment. It is argued by an influential
school of thinkers that the object of punishment is the
prevention of crime ; that whenever we can thereby prevent crime
we are justified in inflicting punishment ; and that we are not justi-
fied in inflicting punishment unless by so doing we can prevent
crime. By another school of thinkers it is held that the object
of punishment is the reformation of the off'ender ; that we are justi-
fied in inflicting punishment whenever it may reform the party
punished, though it follows from this that he is not to be punished
when he cannot be reformed. The true view, as has been elsewhere
urged, is that punishment is to be imposed as a matter of retribu-
tive justice ; and that when so imposed crime is more likely to be
prevented and reformation induced than would be the case were
punishment inflicted for the mere purpose of prevention or reform
irrespective of justice. And what has been said in the preceding
sections tends to strengthen this view. The punishment which, as
we have seen, is self-inflicted by crime is not primarily either pre-
ventive or reformatory. In a secondary sense it has undoubtedly
both these eflfects ; but this is not because the punishment is im-
posed, but because it is felt to be deserved. We are deterred
from Avrong, for instance, when we witness the remorse of great
wrong-doers, not because we see them suff"ering this remorse, but
because we know they are suff'ering in consequence of their wrong-
doing. Our own remorse at wrong done by oui'selves is reformatory
just in proportion as we feel the remorse is the consequence of the
wrong. The system, then, that governs the world is that sin is to
be punished because it is sin : punitur quia peccatum est. And
it is worthy of notice that by this view are best preserved the sanc-
tions at once of liberty and of law. It is not strange that absolutist
768



GENERAL CONCLUSIONS. [§ 833.

economists should claim the right to inflict punishment whenever
prevention or reformation would he worked, because, if either
prevention or reformation he the primary ohject of punishment,
then the right of the state to punish is unlimited. I am entitled,
however, to know beforehand what acts are unlawful, and, as a
member of a civilized state, I am entitled to demand that when
an act is made punishable the punishment assigned should be in
proportion to the heinousness of the act. Unless this be the case
I have no liberty worth having. Turgenieff, in his Punin and
Babwin, has depicted with great vividness the stagnation produced
by a system of government under which a transportation to Siberia
is decreed whenever it is thought by the chief of the police that the
person transported would be improved by the transportation, or
other persons prevented from wrong-doing by seeing him driven
into exile. Far more vivid would be the contrasts could we suppose
such a system introduced among ourselves. In Russia it works
badly enough, but in Eussia free institutions never existed, and jus-
tice was never impartially administered. Our traditions are differ-
ent. The establishing of such a system would be a demolition as
well as a revolution. Our country, great and active as it is, would, if
we submitted to the introduction among us of such a system of penal
discipline, be paralyzed. There would be no business enterprise in
which we could engage which might not to-morrow be pronounced
criminal ; there is no one, no matter how meritorious, who might
not look forward to a moment in Avhich, from some transient unpopu-
larity, it might be, or from some other equally irrelevant conspicu-
ousness, he might not be seized upon and punished in order to
prevent others from wrong. If prevention alone be the standard,
it is immaterial who is punished, or how severe the punishment is,
if the desired terror is produced. Equally despotic is the plea of
reformation not based on retributive justice. If reformation is the
sole standard, then, as has been incidentally noticed, the utterly
incorrigible could not be punished at all, and the punishment of
others would have to be proportioned to their capacity for receiving
and retaining impressions, just as the efforts of the sculptor are pro-
portioned to the capacity of the material on which he works to
receive and retain the finishing strokes of the chisel. Prevention
and reformation are undoubtedly secondary objects of punishment;
VOL. I.— 49 769



§ 833.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY.

in other words, retributive justice should be so shaped as best to
effect these important ends. But unless a punishment is just, it
will neither prevent crime in others, nor reform the person unjustly
punished. Unjust punishment if inflicted in order to prevent law-
lessness would stimulate lawlessness ; if inflicted in order to reform
an alleged offender, it would drive him into implacable resistance to
the government which perpetrates so atrocious a wrong. To the pre-
servation of law as well as to the preservation of liberty it is essen-
tial that punishment should be inflicted only in just retribution of a
convicted crime which the law has previously made punishable.^

1 See Wh.. Cr. L. 8tli ed. §§ 1 e seq., wliere the topic is discussed at large ;
and see supra, § 754, note 2.

770



INDEX TO YOL. I.



[the figures refer to sections.]



AIDOIOMANIA, 617.

ALCOHOLISM, 639.

AMENTIA, 698.

ANGER, distinguishable from insanity, 422

APPARITIONS due to mistake of senses, 654.

APHASIA, 324.

AUTOPSIES of insane, 321.

BLINDNESS, 95, 469.

BOOKS on insanity, authority of, 279.

BRAIN, lesions of, not due to insanity, 321.

injuries to, 348.

influenced by stomach, 646.
BURDEN OF PROOF (see Presumptions), 246.

conflict as to, in cases of wills, 30.

in criminal issues, 251.

CAPACITY, contractual, 1.

testamentary, 19.

to plead, 200 a.

of deaf-mutes, 95.
CHOREA, 647.

CHRISTIANITY has no tendency to produce Insanity, 662.
CLASSIFICATIONS of insanity, 305-318.
COMMISSIONS OF LUNACY, 99.
CONFESSIONS, insane, 200 a, 788, 804.

CONSANGUINEOUS MARRIAGES, as affecting idiocy, 269, 684.
CONSCIENCE, extinction of, rare, 816.

part of divine economy, 830.
CONTRACTS, capacity to execute, 1-18.

lunacy as affecting, 1.

lucid intervals as affecting, 2.

monomania as affecting, 3.

fraud as affecting, 6.

771



INDEX TO VOL. I.

COliiTR ACTS— (continued').

deeds, how affected by Insanity, 9.
partnership, how affected by insanity, 11.
torts, how affected by insanity, 15.
intoxication, effect of, on, 16.
man-iage, capacity for, 1 7.
undue influence, 76.
CONVERSATION as a test of insanity, 378.

CORPUS DELICTI, necessity of proving in case of confessions, 804.
CRBIE, hereditary, 367, 371.
psychical indications of, 771.
prior to crime.

preparations, 773.
intimations, 775.
over-acting, 780.
at crime.

incoherence, 781.
self-over-reaching, 787.
after crime.

con"vnilsive confessions, 788.
nervous tremor, 805.

morbid propensity to return to scene of guilt, 812.
permanent mental wretchedness, 814.
animosity between confederates, 815.
responsibility for (see Responsibility), capacity for, 116-201.
CRIMINAL LUNATICS, treatment of, 753.
CUNNING consistent with insanity, 381-385.

DEAF-MUTES, 95, 461.

DEFINITION OF INSANITY, to come from court, not experts, 112, 190.

DEEDS (see Contracts).

DELIRIUM, difficulty of feigning, 447.

general delirium, 702.

partial delirium, 706.

mania or amentia occulta, 706.
mania transitoria, 710.
DELIRIUM TREMENS, as affecting responsibility, 202.

as constituting a monomania, 639.
DELUSIONS, as affecting contracts, 3.

as affecting wills, 34.

as affecting crime, 125.

objective and subjective, distinction between, 135.

due to sexual causes, 525.

psychological character of, 723.
DEMENTIA, 698.
DEMONIACAL POSSESSION, 644.

772



INDEX TO VOL. I.

DEPORTMENT, as a test of insanity, § 378.
DEPRESSION, 502.

DERANGEMENT OF SENSES, deaf and dumb, 461.
psychologically, 461.
legally, 464.

blind, 469.

epileptics, 470.
DETECTION OF INSANITY, 338.
DIPSOMANIA, 639.

DRUNKENNESS (see Intoxication and Commissions of Lunacy).
DUMBNESS, 95, 461.

ECCENTRICITY, does not per se incapacitate, 29, 86.
is not equivalent to delusion, 38.
cruelty of refusing capacity on account of, 60.
ECSTAsIeS, 659.
EPIDEMICS, hysterical, 647.

of confession, 800.
EPILEPSY, 470.
EROTOMANIA, 617.

ESCAPE, neglect to, presumption from, 406.
EVIDENCE, mode of proof of insanity, 246.
testimony of experts and non-experts, 257.
scientific books inadmissible, 270.
EXAMINATIONS OF INSANE, by whom conducted, 338.
at what time made, 341.
by what tests, 345.
EXPERTS, who they are, 262.

difficulty in determining their qualifications, 268.
question to be put to them, 262.

as to matter of common knowledge, 264.
court to decide whether matter belongs to them, 265.
as to scientific authorities, 286.
as to hypothetical case, 32, 267.
as to disputed facts, 267.
as to conclusion of law, 112, 190.
■weight to be attached to their testimony, 33, 195, 270, 275.
duties of, 278.

should be assessors, 274.
testimony not to be speculative, 275.
examinations should be thorough, 276.'
all materials for diagnosis should be secured, 278.
entitled to special fees, 263.
non-experts, 257.

may give opinions as to sanity, 31, 102, 257, 261.
not competent as to occult conditions, 258.

773



INDEX TO VOL. I.

'EXPERTS— (continued).

cannot be asked as to hypothetical case, 259.

subscribing witnesses admissible as to sanity, 260.
EXPERT APPELLATE COURT, difficulties caused by absence of, 273.

FANATICO-MANIA, 614.

supernatural or pseudo-natural demoniacal possession.
d, priori improbability of such possession, 644.
solubilitjr of the instances of such possession by natural tests.
disease, 646.

morbid imitative sympathy, 647.
legerdemain and fraud, 651.
mistake of senses, 654,
guesswork, 656.

natural phenomena at present inexplicable, 659.
historical evidence of such possession, 660.
religious insanity.

Christianity, taken in its practical sense, has no tendency to produce

insanity, 662.
what is called religious insanity is produced —

by a departure from practical Christianity, 669.

appeal to the selfish element, 675.
by constitutional idiosyncrasies, 677.
fanatico-mania as a defence, 678.
FEAR, as a check oft passion, 149.

sane and insane, distinction between, 432.
not insanity, 432. '

delusion as to danger as affecting responsibility, 130.
FEIGNED insanity (see Simulated Insanity).
FORGETFULNESS, as a test of insanity, 410.
FRAUD (see Undue Influence').

GRIEF, not insanity, 426.

GUARDIANS, may avoid contracts of ward, 13.
in lunacy, 99.

HALLUCINATIONS (see Delusions).^

HANDWRITING, as a test of insanity, 386.

HEREDITARY TENDENCIES, as a test of insanity, 143, 254, 362.

psychologically considered, 362.
HISTORY, as a test of insanity, 388.
HOME-SICKNESS, 429.
HOMICIDAL MANIA, 578.
HYPOCHONDRIA, 508.
HYPOTHETICAL CASE, examination of experts as to, 32, 267.

non-experts cannot give opinions as to, 257.

774



INDEX TO VOL. I.

HYSTERIA not insanity, 517.

selfishness a form of, 676.
HYSTERICAL epidemics, 647.

IDIOCY as to contracts, 1.

marriage, 17.

wills, 20.

crime, 117.

produced by excesses of parents, 369.

viewed psychologically, 682.
ILLUSIONS (see Delusions).
IMBECILITY as to contracts, 1, 76.

marriage, 17,

wills, 19, 76.

crime, 117.

murder, in the case of, 441.

psychologically, 691.
IMPULSE (see Irresistible Impulse).
INCENDIARY PROPENSITY, 604.
INQUISITION OF LUNACY, generally, 99.

is only prima facie proof to third parties, 6 a, 255.
INSANE CRIMINALS, treatment of, 753.

retribution, 754.

prevention, 763.

example, 765.

reform, 766.

why our present system should be remodelled, 770.
INSANITY, when occult, 706.

when transitory, 162, 710.
INSENSIBILITY of act, test of insanity, 389.

to extremes of temperature, in the insane, 358.
INSURANCE, LIFE, when avoided by insanity, 228.
INTERMEDIATE THEORY, 329.
INTOXICATION, as aifecting capacity to contract, 16.

as affecting testamentary capacity, 65.

as a defence to charge of crime, 202.

insanity produced by delirium tremens affects responsibility in the same
way as insanity produced by any other cause, 202.

insanity immediately produced by intoxication does not destroy respon-
sibility where the patient, when sane and responsible, made himself
voluntarily intoxicated, 207.

while intoxication is, per se, no defence to the fact of guilt, yet when the
question of intent or premeditation is concerned, it may be proved for
the purpose of determining the precise degree, 214.

as affecting responsibility, 639 (see Commissions of Lunacy).
IRRESISTIBLE IMPULSE, 146, 567.

775



INDEX TO VOL. I.
KLEPTOMANIA, 590

LETTERS as a test of insanity, 386.
LIBERTARIAJSriSM not inconsistent with reason, 664.
LIFE INSURANCE as affected by insanity, 228.

IjUCID intervals in relation to contractual and testamentary. capacity
2, 61.

presumptions as to, 247-249.

psychologically considered, 744.
LUNACY, commission of, 99.
LUNATICS, CRIMINAL, treatment of, 753-770.
LYING PROPENSITY, 626.

MAGNETIC PHENOMENA at present inexplicable, 659.
MANIA A POTU as affecting responsibility, 202.

as constituting a monomania, 639.
MANIA OCCULTA, 706.
MANIA TRANSITORIA, 162, 710.
MARRIAGE, capacity to contract, 17.

MATERIALISM, its theory of insanity and volition, 150 a, 327.
MEDICINES may produce incapacity, 75.

witnesses under influence of, 245.
MEDICAL BOOKS, 279.
MEMORY, loss of, inferring insanity, 410.

often cause of supernatural presentiments, 657.
independent of corporeal conditions, 658.
MIND not divisible, 305, 533.
and matter, union of, 334.
MONOMANIAS as affecting contracts, 3.
as affecting wills, 34.

psychologically, 567, 670 (see Moral Insanity).
MORAL INSANITY does not affect testamentary capacity, 37.
as a defence to charge of crime, 123, 163.
general, 531.

as to psychological possibility of separate insanity of moral function,

633.
as to whether such sepai-ate insanity exists, 541.
authorities in the alffrmative, 541.
present weight of authority is negative, 552.
not recognized by the courts, 163.
MORAL MONOMANIAS, special, 567.
at present repudiated, 567.
absurdity of classification, 572.
homicidal mania, 578.

kleptomania (morbid propensity to steal), 590.
pyromania (morbid incendiary propensity), 604.

776



INDEX TO VOL. I.

MORAL MOXOMANIA S— (continued).

erotomania (morbid sexual propensity), 617.

pseudomania (morbid lying propensity), 626.

oikeiomania (morbid state of domestic affections), 630.

suicidal mania, 636.

dipsomania (morbid passion for drink), 639.

fanatico-mania, 644.

politico-mania, 679.
MORBID IMITATIVE SYMPATHY, 647.
MOTIVE as a test of insanity, 399.

there may be a legally motiveless act, 405.

NARCOTICS (see Medicines).
NECESSARIES, liability of lunatics for, 1.

of drunkards, 16 c.
NEGLECT, to escape presumption from, 406.
NERVOUS DISEASES, as transmitting mental derangement, 368.

causing confessions, 795.
NOSTALGIA, 429.
NOTORIETY, desire for, causing untrue confessions, 792.

OBLIVION as a test of insanity, 410.

OCCULT MANIA, 706.

OIKEIOMANIA, 630.

OINOMANIA, 639.

OLD AGE as affecting capacity, 87, 104, 691.

OPTICAL DELUSIONS, 655.

PARTNERSHIP CONTRACTS (see Contracts).
PASSIONS as distinguishable from insanity.

remorse, 413.

anger, 422.

shame, 423.

grief, 426.

homesickness, 429.

fear, 432.
PHRENOLOGY, psychological value of, 320.
PHYSICAL PECULIARITIES explaining mental conditions, 253.

tests of insanity, 347.

theory of insanity, 330.
PLEAD, capacity of lunatic to, 200 a.
POLITICO-MANIA, 679.

PREMEDITATION (sec Delusions and Intoxication).
PRESUMPTIONS from character of act, 63, 83, 389, 773, 782.

from old age, 87.

from relation of beneficiaries to testator, 82.

777



INDEX TO VOL. I.

VR'ESVM'PT10:^S— {continued).

from party being deaf, dumb, or blind, 95, 461.

from suicide, 241.

as to sanity generally, 246-256.

as to lucid intervals, 2, 61, 744.

from hereditary tendency, 362.

burden of proof, 246.
PROSTRATIOX, 682.
PROVOCATION, delusion as to, 130.

passion consequent on, a mitigating element, 151.

incase of intoxication, 216.
PSYCHICAL theory of insanity, 319.

indications of crime, 7 71 (see Crime).
PULSE as a test of insanity, 352.
PUNISHMENT necessary to prevent crime, 148, 833.

efficiency of penal discipline, 189, 337.

in relation to insane criminals, 753-770.
PYROMANIA, 604.

QUESTIONS OF LAW must be decided by judge, not by jury, 113.

RAGE distinguishable from insanity, 418.
RELIGIOUS INSANITY (see Fanatico-mania) .
REMORSE distinguishable from insanity, 413, 788.

and giief, distinction between, 822.
RESPONSIBILITY FOR CRIME, where the defendant is incapable of dis-
tinguishing between right and wrong as to the particular" act, 116.
■where the defendant is acting under an insane delusion as to circum-
stances which, if true, would relieve the act from responsibility, or
where his reasoning powers are so depraved as to make the commission
of the particular act the natural consequence of the delusion, 125.
where the defendant, being insane, is forced by an iiTesistible impulse to

do the particular act, 146.
moral insanity (i. e., a supposed insanity of the moral system claimed to

coexist with mental sanity) is no defence, 163.
while experts may be called to testify as to states of mind and conditions
of health, it is for the court to declare whether such states and condi-
tions constitute irresponsibility, 190.
predisposition to insanity as lowering gi'ade of guilt, 200.
capacity of insane defendants to plead, 200 a.
how far intoxication affects responsibility, 202.
moral insanity viewed psychologically, 531.
moral monomanias, 567.
homicidal mania, 578.
kleptomania, 590.

778



INDEX TO VOL. I.

EESPOXSIBILITY FOR CRIME— [contimted).

pyromania, 604.

erotomania, 617.

pseudomania, 626.

oikeiomania, 630.

suicidal mania, 636.

dipsomania, 639.

fanatico-mania, 644.
RIGHT AXD WRONG TEST in criminal cases, 119.

not applicable to cases of life insurance, 240.

SCIENTIFIC TREATISES, authority of, 279.

SECRETIONS as a test of insanity, 352.

SELF-DEFENCE, murder under delusions as to necessity of, 440.

SENSORIAL SYSTEM, as affected by insanity, 360.

SEXUAL MORBID INSTINCT, 617.

SHAjNIE, distinguishable from insanity, 423.

causing suicide, 425.
SIMULATED INSANITY, reasons for suspecting, 445.
forms generally simulated, 446.
not proved by sanity at trial, 452.
tests, 354, 454.
physical conditions, 347.
injuries to brain, 348.

anomalies of sensibility, of pulse, of secretions, of sense, 352.
hereditary tendency, 362.
psychologically, 362.
legally, 373.
conversation and deportment, 378.
■writings, 386.
prior history, 388.
nature of act, 389.

its insensibility, 389.

its incongruity with antecedents, 390.

its motivelessness, 399.

motives rarely simple, 401.
passion as a motive, 403.
lawlessness as a motive, 404.
neglect to escape, 406.
forgetfulness, 410.
SLEEP, its relations to insanity, 482.
SLEEP-DRUNKENNESS, 484.
SOMATIC THEORY of insanity, 320.
SOMNAMBULISM, 492.
SOMNOLENTIA, 484.

779



INDEX TO VOL. I.

SOUL, incorporeality of, 333.
SPIRITUALISM as affecting capacity, 59.
STEALIiS'G MANIA, 590.
SUICIDE not conclusive evidence of insanity, 241.

under influence of melancholia, 529.

from shame, 425.

as a recognition of public sense of right, 823.
SUICIDAL MANIA, 636.
SUPERNATURALISM, effect of spiritualism on capacity, 59

manifestation of, due to fraud, 652.

supernatural presentiments often due to memory, 657.
SUPERNATURAL POSSESSION (see Demonolvgy).
SYMPATHY (see Morbid Sympathy).

TEMPERAMENT, affections of, 502.

depression, 502.

hypochondria, 508.

hysteria, 517.

melancholia, 523.
THEOLOGY^, attitude of, towards intermediate theory of insanity, 332,
TORTS, how insanity affects responsibility for, 15.
TRANSITORY MANIA, 162, 710.
TREATISES, SCIENTIFIC, when evidence, 279.

UNDUE INFLUENCE, as affecting contracts, 2.
as affecting wiUs, 76.

VOIDABILITY OP CONTRACTS, law as to, 7.



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