diately threatening danger renders a temporary restraint of the insane person necessary, as a protection to the public or to himself.

§ 44. Control of the insane in the asylum. Another important question is, how far the keepers of an insane person may inflict punishment for the purpose of control. When one is confined in an asylum, on account of insanity, the very mental helplessness would prompt a humanitarian method of treatment, as the best mode of effecting a cure, and the keepers should be severely punished for every act of cruelty, of whatever nature it may be. But still every one will recognize the necessity at times for the infliction of punishment, not only for the proper maintenance of order and good government in the asylum, but also for the good of the inmates. Because one is insane, it does not necessarily follow that he is not influenced in his actions. by the hope of reward and the fear of punishment, and, when the infliction of punishment is necessary, it is justifiable. But there is so great an opportunity for cruel treatment, without any means of redress or prevention, that the most stringent rules for the government and inspection of asylums should be established and enforced. But within these limitations any mode of reasonable punishment, even corporal punishment, is probably justifiable on the plea of necessity.

It is prob

§ 45. Punishment of the criminal insane. ably the rule of law in every civilized country, that no insane man can be guilty of a crime, and hence can not be punished for what would otherwise be a crime. The ground for this exception to criminal responsibility is, that there must be a criminal intent, in order that the act may constitute a crime, and that an insane person can not do an intentional wrong. Insanity, when it is proven to have existed at the time when the offense was committed, con

stitutes a good defense, and the defendant is entitled to an acquittal. If the person is still insane, he can be confined in an asylum, until his mental health is restored, when he will be entitled to his release, like any other insane person. In some of the States, a verdict of acquittal on the ground of insanity, in a criminal prosecution, raises a prima facie presumption of insanity at the time of acquittal, which will authorize his commitment to an asylum, without further judicial investigation. Other State statutes provide for his detention, until it can be ascertained by a special examination whether the insanity still continues. But as soon as it is made plain that his reason is restored, he is entitled to his liberty. If his confinement was intentionally continued after his restoration to reason, it would practically be a punishment for the offense or wrong. Mr. Cooley says: "It is not possible constitutionally to provide that one shall be imprisoned as an insane person, who can show that he is not insane at all." This is very true, but I will attempt to show that there is no constitutional objection to the confinement of the criminal insane, after restoration to sanity, as a punishment for the offense which was committed under the influence of insanity. The chief objection to be met in the argument in favor of the punishment of insane persons for the crime or wrong which they have committed, lies in the commonly accepted doctrine, that a criminal intent, which an insane person is not capable of harboring, constitutes the essential element of a crime. Without the intent to do wrong there can be no crime. But that is merely an assumption, which rests upon a fallacy in respect to the grounds upon which the State punishes for crime, and which, as soon as it is recognized as a controlling principle, is practically abrogated by dividing criminal intent into actual and presumed. It is found on applying the rule to the ordinary experiences of life,

1

1 Underwood v. People, 32 Mich. 1; Cooley on Torts, 178, n. 2.

that it does not fulfill all the demands of society; for a strict adherence to the principle would exclude from the list of crimes very many offenses, which the general welfare requires to be punished. A man, carried away by a sudden heat of passion, slays another. The provocation enabled the animal passions in him to fetter and blind the reason, and without any exercise of will, if by will we mean a rational determination, these passions, differing only in degree and duration from the irresistible impulse of insanity, urged him on to the commission of an act, which no one so bitterly regrets as he does himself, after his mental equilibrium has been restored. Where is the criminal intent in most cases of manslaughter? We are told that the law will presume an intent from the unlawful act.

A man becomes intoxicated with drink, and thus bereft of his reason he commits a crime. Momentarily he is as much a non compos mentis as the premanently insane. But he is nevertheless punished for his wrongful act; and we are told, in response to our inquiry after the criminal intent, that the law will again presume it from the act; for by intoxication he has voluntarily deprived himself of his reasoning faculties, and can not be permitted to prove his drunkenness, in order to claim exemption from criminal responsibility. A man handles a fire-arm or some other dangerous machine or implement with such gross negligence that the lives of all around are endangered, and one or more are killed. The law, at least in some of the States, makes the homicide a crime, and punishes it as one grade of manslaughter, and very rightly. But where is the criminal intent? By the very description of the act, all criminal intent is necesarily excluded. It is negligence, which is punished as a crime.

Now these cases of presumed intent are recognized as exceptions to the rule, which requires an actual intent to do wrong in order to constitute a crime, because it is felt that something in the way of punishment must be inflicted to prevent the too frequent occurrence of such wrongs, even

though there is involved in the commission of them no willful or intentional infraction of right.

act.

The idea, that the intent was a necessary element of a crime, was derived from the conception of a wrong in the realms of ethics and religion, and is but an outcome of the doctrine of free will. When a man has the power to distinguish and choose between right and wrong, and intentionally does a wrong thing, he is then guilty of immorality, and if the act is forbidden by law, of a crime; and punishment ought to follow as a just retribution for the wrongful But if a man can not, from any uncontrollable cause, distinguish between right and wrong, or if the act is an accident, and he does harm to his neighbor, not having rationally determined to do a thing which he knew to be wrong, he is not guilty of a moral wrong, nor of a crime. If the human punishment of crimes rested upon the same grounds, and proceeded upon the same principles, on which, as we are told, the God of the Universe metes out a just retribution for the infractions of His laws, then clearly there can be no punishment of wrongful acts, as crimes, where there is no moral responsibility. But the punishment of crimes does not rest upon the same grounds and principles. The human infliction of punishment is an exercise of police power, and there is no better settled rule than that the police power of a State must be confined to those remedies and regulations which the safety, or at least the welfare, of the public demands. We punish crimes, not because the criminals deserve punishment, but in order to prevent the further commission of the crime by the same persons and by others, by creating the fear of punishment, as the consequence of the wrongful act. A man, laboring under an insane propensity to kill his fellowman, is as dangerous, indeed he is more dangerous, than the man who for gain, or under the influence of his aroused passions, is likely to kill another. The insane person is more dangerous, because the same influences are not at

work on him, as would have weight with a rational, but evil disposed person. And this circumstance would no doubt require special and peculiar regulation for the punishment of the insane, in order that it may serve as a protection to the public, and a restraint upon the harmful actions of the lunatic. If, therefore, the protection to the public be the real object of the legal punishment of crimes, it would be as lawful to punish an insane person for his wrongful acts as one in the full possession of his mental faculties. The lunatic can be influenced by the hope of reward and the fear of punishment, and he can be prevented in large measure from doing wrong by subjecting him to the fear of punishment. This is the principle upon which the lunatics are controlled in the asylums. It would be no more unconstitutional to punish a lunatic outside of the asylum.

It is not likely that this view of the relation of the insane to the criminal law will be adopted at an early day, if at all; for the moral aspect of punishment has too strong a hold upon the public. But if its adoption were possible, it would reduce to a large extent the number of crimes which are alleged to have been committed under the influence of an insanity, which has never been manifested before the wrongful occurrence, and has, immediately thereafter, entirely disappeared.

§ 46. Confinement of habitual drunkards.—It is the policy of some States, notably New York, to establish asylums for the inebriate, where habitual drunkards are received and subjected to a course of medical treatment, which is calculated to effect a cure of the disease of drinking, as

1 So strong an influence has this theory over the public mind that in a late number of the North American Review, a writer attempts to prove the "certainty of endless punishment" for the violation of God's laws, by showing inter alia that even human laws are retributive and not corrective, that a criminal is punished for the vindication of a broken law, and not that crime may be prevented. See vol. 140, p. 154.