Such is the unsatisfactory nature of all circumstantial evidence, the doubtful character of all presumptive proof, that immense difficulties will always stand in the way of juries. Is it not safer, then, to avoid passing a sentence that does not admit of recall or remedy? The protection of society, and this is the great object of punishment, is fully secured by the restraint of the offender, while it does not exclude the chance of his reformation. All experience has shown how idle it is to lean upon the terrors of punishment, as a deterrent from crime. Beccaria, more than a century ago, taught that the public interest required that men should be inspired with a lively horror of crime rather than a fear of punishment. In some cases the murderer, when animated by a feeling of revenge, executes a dreadful crime and delivers himself up to the public officers ;-others contrive their plans with such ingenuity that they build upon the certainty of escape;-nay the notoriety of a public execution excites in an illregulated mind a morbid ambition, and the scaffold is sought as a stage on which to display a bravo's courage. Public executions simply awaken in the hearts of the brutal and degraded, latent and wild passions-they appeal to the imitative and sympathetic faculties of the depraved-and instances might be cited where men have hurried away from the foot of the scaffold to the perpetration of crime.

The punishment of death favors, nay absolutely creates chances for, the escape of the guilty. Several cases have occurred lately where a verdict of not guilty has been recorded in the face of strong and apparently clear evidence. A feeling of impunity is encouraged, and a hope of escape is nourished, in the mind of the criminal. Capital punishment embarrasses the deliberations of those who have a solemn duty to discharge, and it lets loose upon society men of desperate passions, encouraged by one escape to the perpetration of other crimes. It is the opinion of the Barristers on the Norfolk circuit, that if the punishment had been anything short of death, the wretched woman Sarah Chesham, lately executed at Chelmsford, would have been convicted on her first trial. In the case of the murder at Barnard-Castle the prisoner was guilty of murder as well as burglary, or guilty of neither. He was acquitted on the charge of murder, and immediately placed in the dock on the charge of burglary and found guilty. The Waterford Mail of April 5th, 1851, contains an account of a man named Ringrose, who was tried for the murder of Morgan Donaghue, at Listahunny, and acquitted from the want of only one link in the chain of circumstantial evidence. He was discharged next day in the utmost poverty, and for several days he prowled about the neighborhood, subsisting on charity. A farmer of the name of Hayes, out of pity, gave him shelter. In the morning he went to the bed in which Hayes and his wife were sleeping and made an attempt to strangle the latter; on the husband interfering Ringrose made a murderous attack upon him with a spade. It is dreadful to reflect that men with such maniacal passions should, after the apparent perpetration of one dreadful crime, be let loose upon society. If the strong presumptive proof of his guilt in the first instance had led to his confinement as a lunatic, the life of two hospitable and kind people would not have been put in peril, and the country would have been spared a second trial. rate he ought to have been handed over to the care of competent medical authori

At any

ties, who have made diseases of the mind a special study. This in fact ought to be done in every case, so that society may be protected from the insane.

Acquittals have recently taken place which have excited the greatest alarm and astonishment in the public mind, and some of the more influential organs of the press have manifested a strong disposition to attack the juries. The defect is in the law. So long as the consequence of a verdict of guilty is death, so long will the minds of men be disturbed-so long will they look out for favorable circumstances on which to found a verdict of acquittal. The feeling, whether right or wrong, whether wise or not, will operate against the conviction of the really guilty. The more the awful responsibility is looked at, the more will men's minds falter at the possibility of dooming an innocent man to death. Doubts, too, will often arise whether the prisoner is really responsible; whether he ought to be treated as a patient or as a criminal. The case of Maria Clarke, convicted at the Suffolk Assizes of the murder of her infant by burying it alive, is one in point. The nature of the crime, at once strange and horrible, goes far to create a suspicion of insanity. An attempt was made to substantiate such a plea in Court, but the judge frowned it down, declaring that it was not justified by the evidence. After the trial, however, enquiries were made which elicited several important facts tending to establish insanity. No case can more fully prove the impropriety of permitting a judge to decide what is, or what is not, insanity. Legal definitions are often not only contradictory but opposed to experience and common sense. In the history of criminal jurisprudence, we scarcely find any two judges agreeing as to what constitutes insanity. lowing facts were established at the trial of Maria Clarke :

The fol

That during her stay in the workhouse her mind had been so affected by the death of another young woman as to induce an attack of fever attended with temporary derangement. On returning to her mother's she had lain a whole night out of doors. On being charged with killing her child she did not deny it, but led the way to the spot where it was interred. She stated to one witness "I did not hurt the child, I kissed it and laid it in a hole, and went away, and sat on a bank near a gate, and there I sat for a quarter of an hour or twenty minutes. But all at once something caught me up, and told me I must be going, and then I went home in such light spirits as tho I could fly." On being questioned about the deed she had committed, she rushed to a pond with the intention of committing suicide.

All this was evidence of insanity. Had she succeeded in her attempt at selfdestruction, the coroner's jury would at once have returned a verdict of insanity: yet the judge ignored the plea. Further investigation, however, proved that since she had attained the age of four years, she had been subject to temporary aberrations of intellect-that she had been twice under restraint-and three different persons with whom she had lived as servant testified that she was kindhearted and a good servant, but subject to disease of the Brain. One gentleman says, that when she lived with him she was subject to frequent fits of excitement, during which she seemed incompetent to control her actions. Because she was poor her solicitor made no extraordinary exertion, relying at the

trial on written statements, instead of conducting a special and personal investigation into the merits of the whole case. How are the poor and friendless to obtain the necessary aid? It would require the possession of the most acute faculties. But here was a girl ignorant of much that affected her own case, not aware of the kind of evidence which would be of advantage to her, and in a state of mind wholly unfitted for sober thought on the subject. She has been reprieved, it is true, but how many in her state of mind have suffered death! How long will society permit this cruelty to be perpetrated?

Little is accurately understood on the subject of insanity, or of the mysterious link which connects it with crime. Is not all crime the result of a diseased action of the brain, or of an imperfect organization? To punish a man because he has an inferior organism, is as wise and humane as to punish him for bodily defects. A person is often no more responsible for obliquity of the moral sense than for obliquity of vision. Judge Hale was of opinion that all criminals were insane, but, strangely enough, contended that they were nevertheless responsible, and ought to be treated as moral agents,—that partial insanity was no excuse for crime. Sir Vicary Gibbs, on the trial of Bellingham in 1812, said, “A man may be deranged in his mind-his intellects may be insufficient for enabling him to conduct the common affairs of life, such as disposing of his property, or judging of the claims which his respective relations have upon him; and if he be so, the administration of the country will take his affairs into their management and appoint to him trustees; but at the same time such a man is not discharged from his responsibility for criminal acts." Lord Erskine had before this given the sanction of his high authority to a similar distinction between civil and criminal acts. The Lord Chancellor said in the House of Lords, during the debate on Mc Naughton's case, "this is a difficult and most delicate subject, because all persons who have directed their attention to these enquiries, all persons who are best informed upon them, concur in stating that the subject of insanity is but imperfectly understood." Contrast this statement with that made by the Attorney General on the trial of Bellingham. It argues, at any rate, a disposition to treat insanity with more care, and no longer to depend on the patient's ability to discriminate right from wrong in a legal sense. A visit to a lunatic asylum would satisfy any candid enquirer that many of the patients are able to reason calmly, clearly, and forcibly on general topics. Their abstract conceptions of right and wrong may be very just when not under the influence of the special idea which destroys the balance of the mind. Men can often reason excellently well on abstract views of justice, who are unable to subdue the strong desires which influence them in certain directions; or to check the impulse to fury when wounded in feeling or excited by any painful circumstance. Very often that trait in the commission of a crime which a judge would fix upon as proving sanity, would be urged by the scientific as a proof of insanity. The strange and horrible nature of crimes committed by the insane, disposes a jury to look upon them as monsters that it is right to sweep from society; and thus their case seldom meets with due attention.

A man, for example, may have very clear conceptions of his duty to his

children, and yet labor under religious melancholia or excitement, and believe that he is called upon to put them to death in order to save them from a greater calamity. He might be able to enlarge on the distinctive traits in their character, and form a very just estimate of the duties of parent to child, and yet he might murder them. Homicidal insanity appears in many forms. In the Newgate Calender we read of the case of William Brown, who was executed at Maidstone in 1812 for strangling a child whom he met in one of his walks. He had never seen the child before, and he assigned no motive for the act. After he had perpetrated the offence he went and informed the police. He had always borne an exemplary character, and had never been suspected of being insane. Esquirol relates the case of a woman who was admitted into his hospital, and whom he describes as being perfectly rational in her conduct and conversation, and of a mild and affable disposition, but who had been haunted with a strong desire to kill her child. While under his care the excitement returned, and she avoided the temptation on one occasion by flying from the room. He names another case of a lady, who, after her confinement, was one day suddenly seized while dressing her child with the idea of murdering it.

The decision on all such cases must be critical. On the debate which took place in the Lords on Mc Naughton's case, an incident was mentioned which sets this matter in a clear light. A man prosecuted his brother for having confined him in a lunatic asylum. On the trial the prosecutor was placed in the witness box and examined, the cross examination being conducted by Lord Erskine. His evidence was clear, distinct, and rational, and for a whole hour he succeeded in foiling all Lord Erskine's efforts to betray him into a contradiction, or into any apparent intellectual aberration. He was about to be dismissed, when a gentleman came into court who had been accidentally detained, and after he had held a brief consultation with Lord Erskine, the examination was resumed. His lordship made a low bow to the prosecutor, apologized for the unceremonious manner in which he had questioned a person of such great dignity and importance, and in a tone of great humility addressed him as Jesus Christ. The man

said immediately "I am the Christ." This destroyed the case, and a verdict was forthwith recorded for the defendant.

This was a civil case, but had the insane man committed an act of violence on his brother, how would it have stood then? If he had been a poor man in the dock, how would the conclusive proof of his partial insanity have been elicited? Alas! not a few maniacs have fallen victims to judicial haste and ignorance.

There is a remarkable coincidence between homicidal and suicidal insanity. About 60 per cent. of the criminals tried for crimes of violence-during the five years that were made the subject of special enquiry,-had before trial or after, or before or after committing the offence, attempted self-destruction. The propensity to suicide is similar in every way to that which impels to homicide; and it has been proved that witnessing executions, or even reading of dreadful crimes or extraordinary suicides, stimulates the destructive passions. Thus every execution begets crime. But there are strange contradictions in the general treatment of the cases. If a man in an ungovernable fit of passion, or some feeling of des

G g

pondency, murders his family and then destroys himself, the jury finds a verdict of insanity. But if he perpetrates the first only, he is deemed sane, and convicted of murder! The propensity in the two cases frequently arises from similar causes. Dr. Chowne, on Oxford's trial, made this statement :-" I have patients often come to consult me who are impelled to commit suicide without any motive for doing so. They tell me that they are happy and comfortable in other respects, but that they have a strong desire to commit suicide.” In many cases the motive is wholly inadequate. It is related of the Accoucheur to the Princess Charlotte, that wearied in mind and body he retired to his own room, where observing a pair of pistols, the idea of self-destruction at once occurred to him, and he had to struggle very strongly against it. Sir Samuel Romilly, it is wellknown, after a heavy domestic bereavement, committed suicide. The number of cases of self-destruction among the educated classes proves the existence of an immense amount of mental suffering. There is no doubt that care and anxiety, or feelings of shame and disappointment, induce actual disease. Dr. Southwood Smith says: "More than one case has come to my knowlege in which inflammation of the brain having been excited by mental suffering, suicide was committed by cutting the throat. During the flow of blood, which was gradual, the brain became relieved, the mind became rational, and the patient might have been saved had a surgeon been on the spot, or had the persons about the patient known where and how to apply the pressure of the finger to stop the flow of blood until surgical aid could be procured." In all such cases a jury would have no difficulty in finding a verdict of temporary insanity.

The railings

In some cases suicide is the result of imitation or sympathy. around the top of the Monument prove this. Like all nervous diseases it is epidemic; and there are doubtless hereditary tendencies to suicide as well as homicide. A French author relates a remarkable case. An individual had destroyed himself. His brother, on coming to the funeral, was heard to exclaim

"What a fatality! My father and uncle both destroyed themselves, my brother has imitated them, and twenty times during my journey I have been tempted to throw myself into the Seine." Whole families have been afflicted with this dreadful propensity. In hospitals one suicide has been immediately followed by several others, in which not only the act, but the manner of committing it, has been faithfully imitated.

Crime seems to be governed by similar laws. Some suicides are committed in sudden and violent paroxysms, so are some cases of homicide. Other suicides are committed after much preparation and deliberation, so it is also in the case of murder. Both are proved to be subject to epidemic influences, and the tendencies in both cases are often hereditary. Crime as well as insanity runs in families. After the execution of John Thurtell a brother of his was brought before a magistrate charged with a capital offence. The brother of David Haggart who was executed for the murder of his gaoler, was convicted of a similar offence. In a local newspaper of May 6th, 1825, the following paragraph appears :-"Monday week. Mark Whitting and James Caines were executed at Gloucester. The family of the Caines have long been notorious for their crimes; his grandfather was transported, his father hanged, and Caines himself is the