(a) "Irrepressible impulse" is not "moral insanity," supposing "moral insanity" to consist of insanity of the moral system, coexisting with mental sanity. "Moral insanity," as thus defined, has no support, as will hereafter be seen, either in psychology or law.

(b) Nor is "irresistible impulse" convertible with passionate propensity or jealousy, no matter how strong, in persons not insane.2

§ 44. In other words, the "irresistible impulse" of the lunatic, which confers irresponsibility, is essentially distinct from the passion, however violent, of the sane, which does not confer irresponsibility. And when it is shown that a party charged with crime committed the crime under an insane irresistible impulse, then he is entitled to a verdict of insanity.* 1 See this discussed in Whart. & St. ings." Scott v. Com., 4 Metc. 227, Med. Jur. 137.

Caution

fence.

$45. In the enunciation of this conclusion there should be the strictest caution, and in the application of it the most jealous scrutiny. And in connection with it, it is always requisite as important to keep in mind the impressive language of to this deLord Brougham, when discussing the question before the House of Lords: "With respect to the point of a person being an accountable being, that was an accountable being to the law of the land, a great confusion had pervaded the minds of some persons whom he was indisposed to call reasoners, who considered accountability in its moral sense as mixing itself up with the only kind of accountableness with which they, as human legislators, had to do, or of which they could take cognizance. He could conceive of the case of a human being of a weakly constituted mind, who might by long brooding over real or fancied wrongs work up so perverted a feeling of hatred against an individual that danger might occur. He might not be deluded as to the actual existence of injuries he had received, but he might grievously and grossly exaggerate them, and they might so operate upon a weakly framed mind and intellect as to produce crime. He could conceive that the Maker of that man, in His infinite mercy, having regard to the object of His creation, might deem him not an object for punishment. But that man was accountable to human tribunals in a totally different sense. . . . He could conceive a person whom the Deity might not deem accountable, but who might be perfectly accountable to human laws."1

The conclusion we must reach, therefore, is, that an irresistible homicidal impulse in an insane person is a good defence, though such insane person was able to distinguish between right and wrong. With a sane person, however, it is not a defence, as the law makes all sane persons responsible for their impulses. But mere intellec

1

1 Hans. Par. Deb. lxvii. 728. In Pa. 593, 1882; Dejarnette v. Com., 75 the speech as reported by Hansard, Va. 869, 1880; State v. Stickley, 41 Lord Brougham bases the distinction in the text on the Preventive theory of punishability, heretofore discussed. This, however, is not essential to the validity of his conclusion.

2 See, as substantiating this conclusion, Flanagan v. People, 52 N. Y. 467, 1873; Walker v. People, 88 N. Y. 81, 1882; State v. Spencer, (1 Zab.) 21 N. J. L. 196, 1847; Coyle v. Com., 100

Iowa, 232, 1875; State v. Mewherter, 46 Iowa, 85, 1877; Wright v. People, 4 Nebr. 407, 1875; Hart v. State, 14 Nebr. 572, 1883; Cunningham v. State, 56 Miss. 269, 1879; People v. M'Donell, 47 Cal. 134, 1869; People v. Horn, 62 Cal. 120, 1882; and authorities cited under next section. Cf. Com. v. Taylor, 41 Leg. Int. 488, 1884.

In Blackburn v. State, 23 Ohio, 165

tual power to plan and premeditate does not constitute sanity.1 There may be such power, and yet, from an incapacity to form a right view of the relations of the act, the party may be insane.2

As insane persons, in the sense just stated, may be mentioned, persons afflicted with idiocy or amentia, the former being congenital, the latter consisting of a loss of mental power;3 and mania.*

Moral in

4. "Moral Insanity."

§ 46. "Moral insanity," in its distinctive technical sense, is a supposed insanity of the moral system coexisting with sanity no mental sanity. It is therefore to be distinguished from defence. "insane irresistible impulse," which has just been noticed, in two respects: (1) "Irresistible impulse" is only a valid defence when the party offering it is mentally deranged, while in "moral insanity," by its very terms, the patient is always mentally sane; and (2) "Irresistible impulse" is a special propensity impelling to a particular bad act, while in "moral insanity" he is impelled to all sorts of badness. It is enough for the present to say that, as is abundantly shown elsewhere, the position that "moral insanity," as thus defined, exists, is now almost without a defender among specialists in mental diseases. That it is repudiated by the courts of England and of the United States there is

(decided in 1872), the proper questions to be submitted to the jury were declared to be: "Was the accused a free agent in forming the purpose to kill? Was he at the time capable of judging whether that act was right or wrong? And did he know at the time that it was an offence against the laws of God and man?"

See the statement on this point by Cockburn, C. J., given in the Appendix to the Report of the Committee of the House of Commons on the Homicide Amendment Bill. See, also, Willis v. People, 5 Parker C. R. 620, 1860; and also Andrew's Case, 1 Whart. & St. Med. Jur. 162.

ing his mind, from controlling his own conduct, unless the absence of the power of control has been caused by his own default." 1 Steph. Hist. Crim. Law 168; Williams v. State, 50 Ark. 511, 1888; People v. Foy, 138 N. Y. 664, 1893.

1 Bennett v. State, (Wis.) 4 Crim. Law Mag. 378.

2 1 Whart. & St. Med. J. ?? 531-537. 3 R. v. Shaw, L. R. 1 C. C. 145, 1866; R. v. Southey, 4 F. & F. 864, 1864; Vance v. Com., 2 Va. Cas. 132, 1819; McAllister v. State, 17 Ala. 434, 1849. U. S. v. Hewson, 7 Law Rep. 361, 1844.

5 See 28 Alb. L. J. 40. I have discussed this question in a note to Guiteau's Case, 10 Fed. Rep. 161 et seq., 1882.

"No act is a crime if the person who does it is, at the time when it is done, prevented either by defective mental power, or by any disease affect- 61 Whart. & St. Med. J. 22 531-537.

an almost unbroken current of authority to show. Carefully and conscientiously has the defence, by a vast number of independent courts, been scanned; and in almost every instance the conclusion is that the theory on which it rests is without support either in jurisprudence or psychology.'

5. Mental Disturbance as lowering Grade of Guilt.

Mental

missible to

§ 47. The old common law authorities took the ground that sanity and insanity are states as clearly and absolutely distinguishable as are coverture and non-coverture; and disturbthat men are either wholly sane, so as to be wholly ance adresponsible, or wholly insane, so as to be wholly irre- disprove sponsible. This principle, however, is now abandoned as based on a psychological untruth. There are many degrees both of sanity and insanity; and the two states approach each other in

1 R. v. Oxford, 9 C. & P. 525, 1840; R. v. Barton, 3 Cox C. C. 275, 1850; R. v. Higginson, 1 C. & K. 129, 1845; R. v. Layton, 4 Cox C. C. 149, 1851; R. v. Hayne, 1 F. & F. 666, 1859; R. v. Townley, 3 F. & F. 839, 1862; People v. Kerrigan, 73 Cal. 222, 1887.

malice.

cited U. S. v. Schults, 6 McLean, 121, 1852; U. S. v. Holmes, 1 Clifford, 98, 1858; U. S. v. Guiteau, 1 Mackey, 498, 10 Fed. Rep: 161, 1882; State v. Lawrence, 57 Me. 574, 1869; Com. v. Rogers, 7 Metc. 500, 1843; Com. v. Heath, 11 Gray, 303, 1857; State v. Richards, 39 Conn. 591, 1872; Freeman v. People, 4 Denio, 9, 1847; Flanagan v. People, 52 N. Y. 467, 1873; State v. Spencer, 21 N. J. L. (1 Zab.) 196, 1847; State v. Windsor, 5 Harring. 512, 1847; Vance v. Com., 2 Va. Cas. 132, 1818; State v. Brandon, 8 Jones, 463, 1860; Boswell v. State, 63 Ala. 307, 1879; Farrer v. State, 2 Ohio St. 54, 1853; Finley v. State, 38 Mich. 482, 1878; People v. Coffinan, 24 Cal. 230, 1864; People v. M'Donell, 47 Cal. 134, 1874; State v. Coleman, 20 S. C. 392, 1882; Choice v. State, 31 Ga. 424, 1861; Spann v. State, 47 Ga. 553, 1873. These cases, though in various terms, unite substantially in declaring, as the proposition is stated by an able jurist, Judge Thurman (Farrer v. State, 2 Ohio St. 54, 1853)," that there is no authority for holding that mere moral insanity, as it is sometimes called, ex

Shortly after Townley's Case, on a trial for murder, before Erle, J., the defence relied on evidence showing a great amount of senseless extravagance and absurd eccentricity of conduct, coupled with habits of excessive intemperance, causing fits of delirium tremens, the prisoner, however, not laboring under the effects of such a fit at the time of the act, and the circumstances showing sense and deliberation, and a perfect understanding of the nature of the act; it was held, that the evidence was not sufficient to support the defence, as it rather tended to show wilful excesses and extreme folly than mental incapacity. R. v. Leigh, 4 F. & F. 915, 1864. And see R. v. Southey, 4 F. & F. 864, 1864; R. v. Watson, reported in 1 Whart. & St. Med. Jur. 166; R. v. Edmunds, Ibid. 167. As American authorities may be onerates from responsibility.”

imperceptible gradation, melting into each other, to adopt an illustration borrowed by Lord Penzance from Burke, as day melts into night. There may, therefore, be phases of mind which cannot be positively spoken of as either sane or insane. Are persons in one of these phases to be acquitted of crime? If so, they would constitute a class not only dangerous but uncontrollable; for they would not be sane enough to be convicted as felons, and yet would not be insane enough to be confined as lunatics. Are they to be convicted, when charged with offences involving malice and premeditation? At this justice would revolt, for at the time of the commission of the guilty act the defendant, as it could readily be shown, was not in a condition of mind coolly to premeditate, or accurately to contemplate, a malicious design. Under such circumstances the better course is to find the defendant guilty of the offence in a diminished grade, when the law establishes such grade; or when it does not, to inflict on him modified punishment. Nor is this view inconsistent with the analogies of the law. Such considerations (i. e., those of the defendant's mental constitution) are

See, also, Flanagan v. People, 52 N. Y. 467, 1873, where it was said by Andrews, J.: "The argument proceeds upon the theory that there is a form of insanity in which the faculties are so disordered and deranged that a man, though he perceives the moral quality of his acts, is unable to control them, and is urged by some mysterious pressure to the commission of acts the consequences of which he anticipates but cannot avoid. Whatever medical or scientific authority there may be for this view, it has not been accepted by courts of law." S. P., People v. M'Donell, 47 Cal. 134, 1874; Cf. R. v. Haynes, 1 F. & F. 666, 1859.

A partial exception is to be found in some eccentric opinions delivered in the Court of Appeals of Kentucky; opinions, however, which do not appear to have been sustained by a majority of the court in which they were pronounced. Smith v. Com., 1 Duv. 224, 1864; St. Louis Mut. Ins. Co. v. Graves, 6 Bush, 268, 1870. See 1 Whart. & St. Med. Jur. 22 175-8, where these cases

are discussed. As exhibiting a view diverging from the text, see Anderson v. State, 43 Conn. 514, 1876.

In vindication and fuller elaboration of the remarks in the text on "moral insanity," see 1 Whart. & St. Med. Jur. ?? 186 et seq.

1 "We use no mere metaphor when we say that the intellect passes through innumerable gradations from the full glow of noonday to the depth of midnight. He who attempts to place a limit to the twilight on either side, attempting to fix a limit at which reason either suddenly ceases or suddenly begins, is in the quandary of those who put to the stoical philosophers the question what constitutes a heap of corn, and what a bald head, and who were brought at last to confess that a single grain made a heap of corn, and pulling out a single hair made a bald head." Ideler, Gericht. Psychol. pp. 45–51.

2 See 1 Whart. & St. Med. Jur. 126, 181, 200.