ART. V.-INFLUENCE OF INSANITY ON CRIMINAL RESPONSIBILITY.

De principio imputationis alienationum mentis in jure criminali recte constituendo. Disserit C. J. MITTERMAIER. Heidlb. 1838.

In our last number was inserted a short notice of this performance from the Revue Etrangere et Française, but the distinguished reputation of the author as a writer on criminal law, the great importance of the subject, and the fairness and ability with which it is treated, all concur in claiming from us a more particular account of its contents. Professor Mittermaier has come to his task, evidently well prepared by a thorough acquaintance with the labors of others, without distinction of country, and has discussed the difficult and delicate questions which this branch of medical jurisprudence presents, in that spirit of calmness and candor which should ever preside over scientific inquiries. Had he followed the example of some who have undertaken to enlighten their fellow-men on this subject, he would have deemed it unnecessary to trouble himself about the facts recorded by competent observers, and acquainting himself with the writings of others just enough to misunderstand their opinions, he would have plumed himself on his sagacity in detecting their errors, and displayed his regard for truth and courtesy, perhaps, by stigmatizing them as visionary theorists. This, however, he has not done, and not having done it, he has subjected himself to the suspicion of being as wild and visionary as any of those who have humbly endeavored to make the criminal law of insanity faithfully reflect the light of modern science and modern humanity.

It appears that professor Mittermaier published a dissertation on insanity in relation to criminal law, in 1825, and

was induced, as he informs us, again to examine this subject, in consequence of the numerous contributions that have been made to our knowledge respecting it since that time, among which, as deserving the attention of jurists and legislators, he has paid us the compliment of mentioning the various articles that have appeared in this journal within the last three or four years.

Insanity, in some form or other, is now considered among all civilized communities, to be a sufficient reason for absolving its subjects from all responsibility for criminal acts. The points in dispute are, what forms of the disease have this effect, and what legislative provisions will best protect the innocent and maintain the security of society. It is our author's present object to elucidate these points, and we shall now proceed to state the results to which his inquiries have led him.

Professor Mittermaier assumes as his starting-point, that the essential conditions of responsibility are a consciousness of having committed the offence, and a perfect freedom of the will, by means of which we possess the faculty of choosing between good and evil. It is not to be understood, that the freedom of the will is affected, merely because the same inducements produce different determinations in different men, or in the same men at different times. Defective education, or a long course of vicious indulgence, may produce an habitual proclivity to evil, and render the individual, in popular phrase, a slave to his passions, without, however, abridging his moral liberty in such a manner as to take away responsibility. To have this effect, the impairment of his freedom must have been not his own act, but have resulted from external restraint, or from the influence of disease or of other abnormal causes.

Two conditions are required, says our author, to constitute that freedom of the will which is essential to responsibility, namely, a knowledge of good and evil, and the faculty of

choosing between them. Strictly speaking, the latter condition alone, it appears to us, has any connection with moral liberty, which is impaired only when the agent is constrained, in spite of his wishes and endeavors to the contrary, to choose the evil instead of the good. To say that the actions of an insane man are involuntary, or, in other words, are performed without the exercise of any will at all, as writers on insanity have been in the habit of repeating after one another, is either to pervert language from its ordinary signification, or to state as matter of fact, what is a mere metaphysical quibble. An insane person may do-and feel perfectly free to do or not-what seems to him good; and, though he may believe that to be good which is really evil, yet so long as he can act according to the suggestions of his intellectual powers, so long his will continues free. Still, though knowledge of good and evil may not be a condition of free will, it is none the less essential to responsibility, and therefore our author's re marks upon it lose none of their practical value.

This knowledge of good and evil requires, first, that knowledge of one's self by which he recognises his personal identity, and refers his acts to himself; secondly, a knowledge of the act itself, that is, of its nature and consequences; thirdly, a knowledge of the relations of the act, both in regard to men and measures; fourthly, a knowledge that the act in question is prohibited either by the moral or the statute law. Whence it follows that whenever this knowledge is taken away or diminished by the influence of disease or other abnormal causes, responsibility is also taken away or diminished.

The power of choosing between good and evil requires the absence of all those conditions which constrain a person to follow the will of another, so that he can only choose between the criminal act and another unavoidable evil. The constraining power is either external, when one is

irresistibly forced to commit an act; or, internal, which impels a person, in the strongest possible manner, to act in a certain way. Among the conditions incompatible with criminal responsibility is to be reckoned that of insanity, when it really exercises the requisite degree of constraining force.

Insanity consists in a certain perturbation, in which the equilibrium of the human forces-the harmony of which constitutes mental sanity-is so disturbed, that the agent either has no knowledge of the act or of its relation to the moral or statute law, or has so lost the liberty of choosing between good and evil, that he is impelled to criminal acts by an irresistible internal force, even against the conviction of his reason, and in spite of his efforts to the contrary.

The question now is, in what forms of insanity is criminal responsibility destroyed, and to answer this question, we are to ascertain how far, in each particular form, the knowledge and liberty above indicated are impaired.

The knowledge requisite to responsibility may be removed, when the delinquent is deceived by false ideas respecting his own identity or that of other persons or things, and also when he is incapable of perceiving the legal relations of the act in question. Professor Mittermaier observes, very justly, that not every false notion can be considered as sufficient to annul criminal responsibility, and, as an example of such, he alludes to the case of one who imagined that he was cruelly harassed by the persecutions of a certain person whom he falsely considered to be the cause of all the misery he endured. The particulars of this case, by which we could better judge of its nature, are not given, but it seems on the face of it to be one of insane belief; and if it appeared that there was no communication between the two individuals, or that the fact of persecution was in any way impossible, then there could be little if

any doubt, that such was its nature. Indeed, our author subsequently alludes to the case of a young man who assassinated a couple of women in the theatre of Trieste, in the false belief that he had been made the miserable victim of the charms and incantations of the younger,' and approves of his acquittal on the ground of insanity, though this false notion was the most prominent and only positive sign of insanity. We strongly suspect, too, that the next example, that of a mother who kills a beloved daughter in the belief that she was in imminent danger of seduction, and that sudden death alone could save her from eternal perdition, is one of those false notions which indicate an irresponsible state of mind, for we cannot recollect any similar case-and they have been of frequent occurrence-in which the proof of insanity was not established by other tests. In order that the false notion may be deemed sufficient to annul responsibility, continues our author, it must have exerted such a power over the patient's mind, that he could not free himself from the delusion by which he was possessed. Insane people are, no doubt, deeply engaged by the crotchets that besiege their brain, but we are not sure that in this respect they greatly differ from many of their saner fellow-men. It would be no less difficult to convince the latter of the absurdity of some of their darling notions, though obvious enough to every body else, than to convince the maniac that he is not a powerful king, or about to marry a beautiful princess. The character of the predominant notion can never, indeed, by itself alone, furnish a sufficient test for judicial purposes, of the condition of the mind, because in the unequivocally insane it is not always absurd, unfounded, or false. The question of insanity is to be decided by an examination, not only of the predominant notions, but of the mental constitution when

1 See 14 Am. Jurist, 268.