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an erroneous impression of title, is the value of the cjecting the express carriers, monopolize the business, coal before separation from its bed, without allow- dictate oppressive rates, while affording less safety, ance for the expense of severing. This is the same celerity and convenience to customers as a substidoctrine held in Barton Coal Co. v. Cox, 39 Md. 1; tute for the expeditious, reliable and necessary servS. C., 17 Am. Rep. 525; and Illinois, etc., R. and ices of expressmen. The country would be dependCoal Co. v. Ogle, 82 Ill. 627; S. C., 25 Am. Rep. ent upon an illegal assumption of authority by 342; but cannot be considered the prevalent doc- railroads, an assumption in some respects in contratrine. The court in the principal case said: “We vention of public policy, because it would enlarge have examined all the cases which have been cited their power and influence for controlling the busiin the argument, and have discovered no sufficient ness of the country, which, to say the least, is reason for departing from the decision so recently already sufficiently formidable. But it is enough made by this court; nor have we seen any good rea- to say that railroads were not created to do an exson to doubt that the rule then announced is upon press business, are not suited to such service, posthe whole a sound and salutary one, which, while it sess no legal capacity to engage in it, cannot be reawards no more than a just compensation to the quired to undertake and perform it, and I may add, party injured, will, as said by Baron Parke, “tend ought not to be permitted to engage in these to prevent trespasses of this kind.' W

think no

branches of the express business, ultra vires their real distinction can be drawn between this case and corporate powers, if they would; and as they are that of the Barton Coal Company. There this court not legally bound to render express facilities to the held the rule applicable, though the defendant was country themselves, can they, by excluding the exnot a willful trespasser, but dug the coal without pressmen, deprive the public altogether of this knowing that it was trespassing upon the property necessary facility ? Or else extort such concessions of the plaintiffs, but believing it was its own coal.' as the petty resentment or cupidity of their manIt is said that in that case there was no dispute or agers might prompt them to exact? We think not. question about boundaries, and that it was negligence On the contrary, if the express business, as we have in the defendant to go beyond its own lines. But hereinbefore asserted, has become a convenience to the trespass was committed under ground, where the general public, we think it the duty of all railthe lines were not easily ascertained. Trespasses on road companies, through their managers, and in the the land of another, if not willful, always imply exercise of the trusts confided to them for the pubsome degree of negligence. In this case the de- lic good, to make proper provision for everybody fendant's excuse is, that it claimed to be the owner wishing to carry express matter over their respective of the land. But it has been shown by the proof roads, as, in doing so, they would be accommodatand by the verdict that its claim was not well ing the public, and fulfilling to that extent, the obfounded. As said in Maye v. Tappan, 23 Cal. 306: jects and purposes of their creation.” No authori•Where a party has the means of ascertaining the ties are cited, and so far as we know, the question dividing line, he is guilty of negligence in not ascer

is new. taining its location. In this respect, therefore, this case is not to be distinguished from that of the Bar

In Sauyer v. Gerrich, 70 Me. 254, the plaintiff's ton Coal Company. Considering that case as decis

mare was served by the defendant's stallion for the ive of the present, we have not thought it necessary

purpose of raising a colt, whereupon the plaintiff to make further reference to the authorities, or to agreed in writing to pay the defendant twenty doldiscuss the proposition there decided over again."

lars twelve months after date if his mare proved Robinson, J., dissented in a learned and able opin

with foal, “colt holden for payment.” Held, that ion.

the written agreement created a contract-lien in the

nature of a mortgage. The court said: “It would In Dinsmore v. Nashville, etc., Railroad Co., U. S. seem that if the defendant had sent his mare to the Circuit Court, District of Kentucky, May, 1880, 10 plaintiff for the purpose of raising a colt from the Cent. L. 468, it was held that a common carrier latt r's stallion, the defendant would have had, at is as much bound to carry for another common car- common law, a lien upon her for the use of his rier as it is for others. Therefore, a railroad com- horse, so long as he retained possession of the mare. pany cannot refuse to carry for an express company, Scarfe v. Morgan, 4 M. & W. 270; and perhaps upon nor to extend to its messengers and agents the facili- the foal since partus sequitur ventrem, 2 Bl. Com. 390; ties requisite to the prosecution of the express busi- Allen v. Dinsmore, 55 Mc. 113.” It is well settled

The court said: “If express carriers were that the owner of personal property having a potenejected from the railroads, the latter could not be tial existence may sell it. Grantham v. Harley, compelled to supply their places, and, consequently, Hob. 132; 2 Kent's Com. 468 and note g, 492 note the country would be without such facilities unless 1, c.; Farrar v. Smith, 64 Me. 77. And within this the railroad companies would exceed their corporate principle, the owner of a mare may, during gestaobligations and voluntarily undertake to do what tion, sell her future offspring, which will vest in the they are not legally required to do, and to do many vendee when parturition takes place. McCarthy v. things which under their charters they have no right Blevins, 5 Yerg. 195.” “Our opinion is that the to do. As they are under no legal obligations to contract was in the nature of a mortgage; and the render such accommodations to the public, and could case not distinguishable in principle from Oakes v. not be compelled to render them, they could, after I Moore, 24 Me. 214, 220.” See Moore v. Byrum, 10



S. C. 452; S. C., 30 Am. Rep. 58, and note, 63, pose a declaration had been made by the deceased, holding that a mortgage of a crop to be planted is on the previous day, of an intention to go to her valid. This is held not only inter partes but as husband on that particular evening ; such declaraagainst creditors. See note, supra. Farrar v. Smith, |tion, being unaccompanied by any act, would rest cited in the principal case, was the case of a sale of wholly in assertion, and would be clearly without manure to be made.

the rule referred to; yet the proof would be essen

tially of the same character, and subject to no DECLARATIONS AS RES GESTE IN

greater objections than the evidence we are consid

ering. I am of opinion, therefore, that the case CRIMINAL CASES.

was not within the rule admitting a declaration acIII.

companying an act, on the ground of its being a

part of the res gesta.” “A majority of the judges N Douglas v. Chapin, 26 Conn. 76, the plaintiff's concurred.”

In Carroll v. State, 3 Humph. 315, the declarations take charge of defendant's steamboat. In an action of the deceased while on a journey with the prison the contract, it was held that his statement on oner, and in State v. Vincent, 24 Iowa, 570, his deleaving San Francisco, that he was going up the clarations as to the object of a contemplated journey river to Sacramento to go on board the boat, was which he afterward took, were received in evidence. admissible, as part of the res gestæ, in proof that he | In neither case was there any thing in the declaraso went. The court simply said, “it was manifestly tions tending to fasten any criminal intent on the a part of the res geste."

prisoner. In State v. Dula, Phillips, 211, the deceased was In Cheek v. State, 35 Ind. 492, a witness was almet a few miles from the place where she was mur- lowed to testify to the following declaration by the dered, going on horseback in that direction. It was deceased concerning the prisoner just before his held that her declarations then and there that she death: “Doc, I am glad you have come; there are was going to that place to meet the prisoner were two ruffians going up the road, and they have inadmissible in evidence. The court said these de- threatened to take my life; they have gone to my clarations may have been true or may have been house, and I want you to go back with me." The false, but were not verified by the tests which the court said: "Was it res gesta? We think not. law of evidence requires, namely, the sanction of an Bouvier says: When it is necessary, in the course oath, and an opportunity for cross-examination. of a cause, to inquire into the nature of a particular

In People v. Williams, 3 Abb. Ct. App. Dec. 596, on act, or the intention of the person who did the act, an indictment for poisoning, it was held that evi- proof of what the person said at the time of doing dence that the deceased, on going out of the house it is admissible evidence as a part of the res gester, just before she was poisoned, said she was going to for the purpose of showing its true character.' We meet the prisoner,

not admissible as tending to think the books may be searched without success, prove their meeting, even in connection with her to find a case where the statements of a murdered illness on her return, and her attributing it to what man, made before he came in sight or hearing of he had given her to drink. The court, Denio, J., his slayer, can be given in evidence against the acsaid: "To render the declaration competent, the cused on his trial.” Of this case Mr. Bishop says act with which it is connected should be pertinent (2 Crim. Proc., § 625, n. 2): “This may be putting to the issue; for where the act is in its own nature it strong; but in substance the statement is doubtirrelevant, and when the declaration is per se incom- less correct as applied to such a case.” petent, the union of the two will not render the de- The case of State v. Dickinson, 41 'Wis. 299, is claration admissible. The material fact here was very much like the Hayden case in its circumstances, that the prisoner and the deceased were together on but the decision steers a middle course.

This was Saturday night. Even this was not a principal fact, a criminal action for procuring the death of a pregbut a circumstance to show that the prisonernant woman by abortion. It was claimed that the had an opportunity to commit the offense. That death occurred on Saturday. The witness, Mary the deceased left the house in Duane street at a par- Erickson, was permitted to testify as to conversaticular time was of no materiality unless it was also tions had by her with the deceased on the previous shown that during her absence she met the defend- Wednesday and Friday, in which the deceased ant. The act itself was indifferent to the issue, stated that she understood or had found out that whatever the intention with which it was done. If she was in a family way; that she had been to see the deceased met the prisoner, and thus afforded an the defendant about it; had been or was going to opportunity of committing the offense, it is immate- defendant to get medicine and syringe; that she had rial whether she expected or intended to meet him made an arrangement or bargain with defendant to or not; and so of course if she failed to meet him, have an operation performed upon her; was to give he could not properly be prejudiced by the circum- | $25, and was to return to defendant's on Saturday stance that she went out with a design to go to him. afternoon for the purpose of having instruments The evidence was not offered to qualify an act con- used to get rid of the child. The prosecution nected with the issue, but to induce the jury to offered this evidence to show that the deceased bad infer another act not otherwise shown to exist, that at that time the intention of having an abortion of his being in company with the deceased. Sup- produced. In his charge the judge so restricted the effect of the testimony, and directed the jury that part of the thing done at the doctor's office, and all the declarations of the deceased made before she were therefore no part of the res gesto. But the was informed she could not live, in which the de- court say: ‘Had it been shown that the medicine fendant's name was connected, could only be con- was to be taken to aid in producing the miscarriage, sidered as evidence tending to show that at that what was said in respect to it would have been adtime the deceased had formed the purpose to go to missible.' P. 103. The conclusion which we have the defendant to have an abortion produced upon reached in view of all the cases upon the subject is, her, but was not evidence that the defendant actu- that the declarations of the deceased made to the ally produced the abortion or had engaged to do it. witness Mary Erickson were so connected with her The court on review said: “The first inquiry is, act of going to the defendant's as to constitute a whether the declarations of deceased to Mary part of that act, and were admissible as explanatory Erickson were admissible for the purpose of show- of that act. See Regina v. Edwards, 12 Cox's Cr. ing her intention, and as their scope and effect were Law Cas. 230." restricted by the court, we are of opinion that This case seems to us, like most compromises, exthey were. They constituted a part of the res gestae, ceedingly weak. In saying “such declarations were contemporaneous with the main fact under became a part of the res gesto," the court beg the consideration, and were so connected with it as to whole question. In deciding that the declaration illustrate its character. 1 Greenl. Ev. 108. It was of the intent to go to the defendant's to have him certainly competent to prove that the deceased went commit the crime was admissible to show the purto the house of the defendant at the time it was pose of the deceased, but not to show that the charged in the information the abortion was pro- defendant carried it out, the court clearly admitted duced. Upon the authorities, her intent or purpose irrelevant evidence, for that intent of the deceased in going there might be shown by her declarations was quite outside the issue. The issue was whether then made or previously made; because such the prisoner committed the crime. If he did, the declarations became a part of the res gesto. For it intent of the deceased was immaterial; if he did is evident the declarations were connected with the not, it was equally immaterial. In any light the act of her going to the defendant; were expressive evidence could only tend to convict the prisoner by of the character, motive or object of her conduct; the declaration of a purpose on his part which may and they are to be regarded as verbal acts indicat- never have been carried out. The cases cited are ing a present purpose or intention, and therefore very inconclusive. The citation from New York is are admitted in proof like any other material facts.' a mere dictum, and not one of the powerful authori1 Greenl. Ev., supra; Insurance Co. v. Mosley, 8 ties which we have cited to the contrary was proWall. 397; Enos v. Tuttle, 3 Conn. 27; Inhabitants duced. of Corinth v. Inhabitants of Lincoln, 34 Me. 310; Lund None of the foregoing cases were alluded to by v. Inhabitants of Tyngsborough, 9 Cush. 36; Nutting Lord Cockburn in his discussion with Mr. Taylor. v. Page, 4 Gray, 581; State v. Howard, 32 Vt. 380; It would seem that if the decision in the Eduards Moore v. Meacham, 10 N. Y. 207; People v. Davis, case is sound, that in the Bedingfield case cannot be, 56 id. 96. It is obvious that the mere act of the for the declarations in the former were much more deceased going to defendant's house was equivocal; remote than in the latter. It need not be conceded it might be innocent or not; it might warrant the that if the former case is law it goes far to sustain inference that she went for proper treatment of the ruling in the Hayden case, for it simply admitted some ailment; the declarations would render her past threats, while in the latter case evidence was motive clear and intelligible. They therefore seem admitted of what had not happened and might not to us as falling under the denomination of the res happen. The Ilayden case, too, is inconsistent with gesta, and were admissible as original evidence as the Wainwright and Pook cases in England. The distinguished from hearsay.

Dula, Williams, Kirby and Cheek cases seem to us to "In State v. Howard, supra, the declarations of the lay down the proper doctrine. It will be noticed deceased, Olive Ashe, as to the purpose of the jour- that all the contrary cases which we have cited are ney in going to the defendant's, were held by the distinguishable frrom the Hayden case, in that the court to be admissible as part of the res gesto. declarations received did not in any instance convey Upon this question, Redfield, C. J., observes that an intimation of criminal intent or motive on the 'the mere act of going was equivocal; it might part of the prisoner. We regard the Hayden ruling have been for professional advice and assistance. as unsound and dangerous, and cannot see that it is The declarations were of the same force as the act supported by any authority in this country, further of going, and were admissible as part of the act.' than to the extent of the intended meeting with the In People v. Davis, when the deceased came home, prisoner, and even as to that extent it is strongly in answer to inquiries from her step-mother she opposed to the Dula, Williams, Kirby and Cheek made statements telling what had been done to her On principle, the admission of antecedent by Dr. Crandall at his office, and how he did it, ex- declarations is much more dangerous than the admishibiting certain medicine which she said the doctor sion of subsequent or contemporaneous declarations. gave her, and stated what he told her as to taking The latter are generally attended by corroborative it when her pains came on. The court held these circumstances, and are of a character appealing declarations incompetent because they were merely more directly to the conscience; while the former Darratives of past occurrences, did not become a may be entirely false or gratuitous, or if made in


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good faith, may not be supported by subsequent merely of that growing class of persons, who, having facts. It is quite possible, for example, that Hay committed some act which would subject a sane perden did not meet Mary Stannard in the woods,

son to punishment, seek to avoid responsibility by

alleging that at the time of the commission of the act although she may have expected him. It is quite they were not sane. possible that whether he did or not, he had never The laws of New York, relating to this subject, are agreed on the meeting for the purpose indicated by in a condition which must be unsatisfactory to all exher.

On the other hand, if she had been found cept the “insane criminals" themselves. I quote tho there alive, there would have been some show of

pertinent provisions :

“When a person shall have escaped indictment or reason for admitting her contemporaneous declara

shall have been acquitted of a criminal charge upon tion that Hayden had tried to kill her to conceal hier

trial on the ground of insanity, the court being certipregnancy. At all events, both on authority and fied by the jury or otherwise of the fact, shall carefully principle, if her previous declaration that she was inquire and ascertain whether his insanity in any degoing to the woods, or was going to the woods to

grec continues, and if it does, shall order him in safe meet Hayden, was competent, her

custody, and to be sent to the asylum. If such person accompanying

be sent to the asylum, the county from which he is declaration of the motive and purpose of the meet- sent shall defray all his expenses while there, and of ing was clearly incompetent. People cannot be put sending him back, if returned; but the county may to death upon hearsay evidence before the fact. recover the amount so paid from his owu estate if he

have any, or from any relative, town, city or county

that would have been bound to provide for and mainTREATMENT OF INSANE CRIMINALS. tain him elsewhere." Laws of 1812, ch. 135, $ 31. See,

also, Laws of 1874, ch. 446, $22.

“Persons charged with misdemeanors and acquitted is to solve there is one which should be, and I

on the ground of insanity may be kept in custody and think will be, solved in the near future. It is the sent to the asylum in the same way as persons charged problem of the treatment of insanity, in cases where

with crime." Id., S 34. the criminal law has been violated. Properly speaking

“A patient of the criminal class may be discharged there can be no such thing as a crime committed by by order of one of the justices of the Supreme Court, an insane person. But there are persons whom, for

or a Circuit judge, if upon due investigation it shall convenience sake, we call insane criminals; because appear safe, legal and right to make such order.” Id., they have violated laws which would render those who

$ 42. are responsible for their acts amenable to punishment. " Whenever any person in confinement under indictWhat shall be done witli this class - the class of insane

ment for the crime of arson, murder, or attempt at criminals?

murder, or highway robbery, desires to offer the plea A few years ago Dr. Henry Maudsley, of England, of insanity as a general traverse and his whole defense published his now well-known treatise, entitled “Re- to such indictment, he shall present such plea at the sponsibility in Mental Disease.” With the author's time of his arraignment, and at no other stage of the statements concerning the causes of insanity, the ways

trial but this, shall such plea or defense be received or in which it is indicated, and its effect upon the will, I

entertained by the court; and the court before whom have no quarrel. Any criticism in this direction should such trial is pending shall have power, with the concome from a physician, and furthermore, a physician currence of the presiding judge thereof, to appoint a who has made a most thorough study of the subject of commission to examine such person and to inquire insanity. But it is one thing to state facts and quite and report to tho court aforesaid, upon the fact of his another thing to draw conclusions from them. Froude, mental sanity at the date of the offense with which he in his History of England, has shown his ability to do stands charged. The commission aforesaid shall inthe former and his inability to do the latter. In this stitute a careful investigation, call such witnesses as respect Dr. Maudsley resembles Froude. We may ad- may be necessary and for that purpose is fully empowmit his facts, but deny his conclusions.

ered to compel the attendance of witnesses. For his conclusion is, in substance, that in every “Upon the report of sair! commission, if the court case of alleged insanity it belongs to the physician to before whom such indictment is pending shall find pass judgment, or in other words, to pronounce for or that such person was insane and irresponsible at the against the existence of iusanity; that if the physician date of the offense with which he stands charged, the finds that the disease of insanity exists, there should court aforesaid shall order his removal to some State be no infliction of capital punishment, or indeed, of lunatic asylum, there to remain for observation and any kind of punishment, but a simple confinement of treatment until such time as in the opinion of a justhe patient in order that the disease may receivo tice of the Supreme Court it is safe, legal and right to proper treatment; that it belongs to the physician to discharge him.” Laws of 1874, ch. 446, S 30. terminate this confinement at any moment, by declar- “Whenever any person accused of the crime of aring that a cure has been effected, and that on the an- son, murder, or attempted murder, or highway robnouncement of a cure by the physician, the patient bery, shall have been acquitted upon trial upon the should be discharged. Now I take exception to the ground of insanity, tho jury shall bring in a special last part of this conclusion, that on the announcement verdict to that effect and so state it in their finding: of a cure by the physician the patient should be dis- and the court before whom such trial is had shall charged.

order such person to be committed to some State The Revised Statutes of New York provide that lunatio asylum, there to remain for observation and “no act done by a person in a state of insanity can be care until such time as in the judgment of a justice of punished as an offense; and no insane person can be the Supreme Court, founded upon satisfactory evitried, sentenced to any punishment, or punished for dence, it is safe, legal and right to discharge him." any crime or offense while he continues in that state." Laws of 1874, ch. 446, $ 31, as amended by Laws of 1875, The latter part of this section has no application to ch. 574, S 4. the subject under consideration. A person who be- “Whenever any insane person in confinement under comes insane after the commission of a crime may bo, indictment for arson, murder, or attempt at murder, and undoubtedly should be, though in reality he sel- or highway robbery, or who has been acquitted thereof dalis, punished, upon his recovery. I wish to speak on the ground of insanity, and has been committed to some State lunatic asylum, pursuant to the provisions such a person should not be otherwise punished under of the preceding sections, shall be restored to his right any circumstances. Abolish capital punishment and mind, it shall be the duty of the superintendeut of the dispute between lawyers and doctors ceases to be such asylum to give notice thereof to the State com- of practical importance. missioner in lunacy, who shall thereupon inquire into If tbis language is to be construed as an assertion the truth of such fact, and if the same shall be proved that imprisonment for life should be substituted for to his satisfaction he shall so certify it under his offi- capital punishment in cases of insanity, and that that cial hand and seal to a justice of the Supreme Court imprisonment should be unaffected by any announceof the district in which such asylum is situated, who ment of a cure, then I, for one, have no further critishall thereupon, and upon such other facts as may be cism to make. The question of insanity should proven before him, determine whether it is safe, legal doubtless be submitted to the physician, who is the and right that such party in confinement as aforesaid ouly person competent to give it a proper considerashould be discharged.” Laws of 1874, ch. 446, $ 33, as tion. The ordinary jury is not competent to pass amended by Laws of 1875, ch. 574, $ 5.

upon that question. There is danger that it may I hare made these quotations at length - possibly ignorantly convict an irresponsible person. But if it too great length - in order to show clearly the present be right to constitute the physician sole judge in a condition of the laws of New York on this subject. questiou of insanity, it is no less right to restrict him It will be seen that the idea of Dr. Maudsley is almost to a simple determination of that question, and to completely realized. Punishment or immunity hangs refuse to listen to him when he declares the disease upon the lips of the physician. Where the charge is eradicated and recommends the liberation of the paarson, murder, attempted murder or highway robbery, tient. This last point I do not understand Dr. the accused may escape trial altogether. He has sim- Maudsley to concede. ply to offer the plea of insanity at the time of his ar- It will be remembered that I am now speaking of raignment, thus securing an extra-judicial examina- the treatment of those unfortunates, whose insantion by a commission, and if on the report of ity has culminated in the killing of a fellow being. Of the commission the court finds that he was in- course I would not advocate the life-long imprisonsane at the date of the offense, it must “order his ment of an insane person for an offense which would removal to some State lunatic asylum." There he only subject a sane person to imprisonment for a term remains uutil he can satisfy some justice of the Su- of years. Why then should he, whom an insane impreme Court that "it is safe, legal and right to dis- pulse has driven to the commission of homicide, be charge him." Where the accused is acquitted upon deprived of liberty till death? For an all-sufficient trial ou the ground of insauity, the proceeding is reason: the safety of society demands it. Let it be substantially the same. The doors of an insane admitted that a certain act is essential to the protecasylum open to receive him and close upon him for a tion of society and all argument as to its propriety time; then, at the bidding of a justice of the Supreme is at an end; it becomes imperative. It therefore only Court, they open, and he walks out. In every case remains to show why the safety of society requires the keys which unlock the doors of State lunatic that the subjects of homicidal mania should be kept in asylums are held by the justices of the Supreme Court. confinement during life. Undoubtedly, if there are to be such keys, they could If the time ever comes when the physician can say not be placed in better custody, for though it is reas- of the person whose insanity has led him to take ouably certain that the justice will accept the opinion human life: “This man is completely cured. There of the physician, yet it is well to give the judiciary will never be a recurrence of the deed. I answer for some part in the proceeding, and to add its voice to it;" there will then be reason for insisting that recovthat of the physician in a question which affects the ery from insanity shall bring release from imprisonpublic safety. My objection is not to the person in ment. But the physician of the present day is not able whom the right to discharge insane criminals is vested, to make this declaration. Dr. Maudsley himself, in but to the existence of auy such right, in case of grave commenting on a celebrated case, says: “Another offenses, and particularly where the offense is homi- lesson which may be drawn from this case is one cide.

which sad experience of homicidal mania has often It may be that I have done Dr. Maudsley injus- taught, namely, the exceeding danger of a recurrence tice. I confess that in stating his conclusion to be of the attack. One can hardly ever say of a person that insane criminals should be discharged when a who has once labored under it that he has recovered physician has declared them cured, I gave an impres- entirely, so sudden, unexpected, convulsive may be the sion derived from the general tone of his work rather outbreak of a paroxysm." This statement is corrobthan from any express declaration to that effect. In- orated by other distinguished physicians and experts deed, in one place he uses language which seems to on the subject of insanity. It is therefore safe to warrant a very different conclusion, as the following affirm, on such testimony, that for him who ha quotation will show:

insanely killed or threatened to kill, such a thing as "The argument in favor of hanging madmen in complete recovery is in the last degree problematical order to deter others from crime must then be pro- if not utterly impossible; and that the safety of sovounced utterly baseless ; the execution of them ciety can be adequately secured only by confining for would be of use only if it deterred persons from going life the sufferer from homicidal mania. mad, which no one had asserted that it does; but the This then is the conclusion. The plea of insanity, argument that it is necessary to execute them in order in cases of homicide, should be an application for a to protect society would be incontrovertible if society life lease in a lunatic asylum; and the granting of the had no other effectual means of protecting itself. But application should follow the success of the plea. this is not so; it has the power of protecting itself There could be no such thing as pardon, for no crime effectually, and at the same time of inflicting upon the would have been committed. Moreover, since the insane wrong-doer what he assuredly regards as a liberation of the insane sufferer would be dangerous heavy punishment, by shutting him up in a lunatic to the public, the right to discharge should not be asylum. There need be no fear that the prospect of vested in any one. He who offers the plea of insanity such a fate would be less deterrent to him than the should expect to take a final, irrevocable farewell of prospect of death on the scaffold.

all society except that of an insane asylum. "It will be observed that I bave spoken of the punish- I do not see how this conclusion can be avoided. ment of death as oue which should never be inflicted Those whom the plea of insanity saves from the galupon an insane person; it is another question whether lows may be divided into two classes – those whose


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