exist in some dreamer's Utopian land. We are on a study of actual cases, from a daily contact with dealing with conditions as they actually exist, under those in whom reason totters from its throne. The the procedure that is in vogue in our courts. The superintendents of asylums observe the mental and criminal responsibility of the defendant is deter- physical actions of the insane patient, and by caremined by a jury of twelve good men and true. But ful observation are able to determine the power jurors may be good men and true and still not know he has to control his actions. The opinions of the very much about insanity. The following quota- physicians in charge of these great asylums, on tion from a letter that I recently received from the matters relating to insanity, are apt to be nearer to superintendent of one of the largest insane asylums the truth than the opinions of jurists who sit upon in the country perhaps exaggerates the deficiencies the bench and theorize about insanity without havof our jury system, but it, at any rate, shows con- ing had any contact with insane persons. vincingly that some rule of law is necessary for the In order to obtain the strongest possible testiguidance of juries in ascertaining the criminal mony as to what constitutes the best criterion of responsibility of prisoners. The superintendent criminal responsibility, I wrote to the superintendwrites: "Trial by jury, about which, in England ents of a number of the largest insane asylums in and in this country, we boast so much, is in many the United States, asking their view upon the subcases very nearly a farce. I have had not a little ject. The list of men to whom I addressed my inexperience in this direction. To have a jury of quiry was chosen because those men were at the ordinary citizens sit as wise as owls to determine head of leading institutions, representing every secsome of the most subtle questions that it is possible tion of the country. In making my inquiry I was for a man to discuss, is a curious condition, to a seeker after the truth. In fact, at the time when say the least. I have seen, again and again, in the I first conceived the idea of writing to different court-room subtle questions in psychological medi- superintendents for their views, I was rather inclined cine brought up and left for the consideration of toward the McNaghten test. But at that time my the jury, the judge throwing very little light upon investigation had been confined entirely to the legal the question. The jury retires and probably not a side of the subject. I asked each superintendent single individual in the box knows anything whatto whom I wrote if he favored either the ever of mental operations." Since jurors, as a rule, McNaghten or the power of control test, and, if are ignorant concerning diseases of the mind, it neither of those, then what test he did favor. To becomes absolutely essential that there should be the inquiries sent out I received twenty-four some test to guide them. In examining insanity answers. In every instance the response to my incases in the reports I have frequently found instances in which the jurors have asked for fuller instructions on the subject of insanity. Without any rule of law to direct them, it would be unreasonable to expect that juries would intuitively decide the proper measure of responsibility to justify | best qualified of any men in the country to speak a conviction. If there was no settled definite test which juries were instructed to follow, they would be legally justified in ignoring the modern liberal rules of responsibility and going back to the rules in vogue in Lord Coke's time. The power of control test represents the scientific research of a century. By doing away with all tests there is danger of losing the fruits of a century's labors. The situation is well expressed by Taylor, in his Medical Jurisprudence, where he says that "there are no certain legal or medical rules whereby homicidal mania may be detected, each case must be determined by the circumstances attending it; but the true test for irresponsibility in these analogous cases appears to be whether the individual, at the time of committing the act, had or had not a sufficient power of control to govern his actions."

quiry was sent by the superintendent or chief physician of the institution. Out of the twentyfour responses received there was only one indorsement of the McNaghten test. It is certainly deserving of attention that the men who are the

upon the subject of insanity should condemn the prevailing test of the courts with such practical unanimity. These men are not mere idle theorists. Their opinions are based on daily observations. Thousands of insane persons are under their supervision, and their words have a value and importance which should not be under-rated. The only letter which I received sustaining the McNaghten test was from Dr. Mitchell, superintendent of the Mississippi State Insane Hospital. He gave a strong presentation of the arguments in favor of the current test. Dr. Mitchell says: "I am in sympathy, in the main, with the English and American decisions in regard to criminal responsibility. Such decisions are, in my judgment, based on proper principles of jurisprudence, and, in addition, are commended by public policy. Even a casual The men who are best fitted to testify as to what acquaintance with the insane, from my observation, constitutes the best test of criminal responsibility will enable one to ascertain whether a party can in insanity cases are the physicians who are in discriminate between right and wrong, but I know charge of our leading insane asylums. These physi- of no means of ascertaining whether the party is cians are brought into daily touch with all kinds and uncontrollably impelled to do a criminal act, hence grades of insanity. Any test of which they may the sentimental view adopted by some of our alienapprove is the result of inductive reasoning based ists would work irreparable injury to society." In

wrong, but whether he is capable of controlling his acts."

the letter sent by Dr. Mitchell there was no letterhead to tell whether he was a physician or not. His views seemed so at variance with those that I From the Pacific coast comes the voice of Dr. had received from the other superintendents, and Asa Clarke, superintendent of the Stockton State were so much in conformity with the prevailing Hospital at Stockton, Cal., who says that "many legal view, that I wrote him again, asking if he thoroughly irresponsible insane persons know the were a physician or lawyer. In his reply to my difference between right and wrong, but their second letter Dr. Mitchell said: "I am a physician mental activities consist so largely of insane noand not a lawyer, but wish I were a lawyer, as our tions, imaginings and delusions, that this knowledge field is a narrow one in comparison with the bar. counts for but little in determining them whether But Shakespeare says, 'to mourn a mischief that to act or to abstain from acting in an illegal way, is past and gone, is the surest way to bring a new hence I do not regard this knowledge of right and mischief on,' hence it is best to accept the situation wrong as a full and just criterion of the responsiwith becoming philosophy." Nothing is further bility of insane persons charged with crime. In from my thought than to disparage the love of my judgment the real test and the paramount Dr. Mitchell for the legal profession. The fact question is as to whether or not the act complained that, although the son of a physician, I have of was the product or result of mental disease. A chosen the legal profession for my life work is the judge or jury being convinced beyond reasonable best answer to any such criticism. But it must be doubt upon this point little or no chance remains admitted that the fond leaning that Dr. Mitchell of an unjust verdict." has toward the bar modifies the importance of his Dr. A. C. Rogers, superintendent of the Minneviews, as a physican, as to the best test of respon- sota School for Feeble-Minded, at Faribault, Minn., sibility. A physician who wishes he were a lawyer said in his reply: "I favor the idea that the accused is bound to be inclined more or less toward the person must not only have a knowledge of right legal view, on points on which the two professions and wrong, but must have the power to choose disagree. The arguments of Dr. Mitchell are the one and abstain from the other." Dr. Rogers strong ones, but they are the arguments of the is secretary of the Association of American Institulawyer rather than of the physician. They are en- tions for Feeble-Minded and is also editor of the titled to weighty consideration, but it should not "Journal of Psycho-Asthenics." be used for the purpose of showing that the present test receives a sanction even in the ranks of the medical experts themselves. The overwhelming majority of alienists oppose the test that Dr. Mitchell has advocated. When twenty-three experts oppose a rule to one that upholds it, that is as near to unanimity as is often found in these days when every man is permitted to think for himself.

Dr. A. B. Richardson, superintendent of the Government Hospital for the Insane at Washington, replied as follows: "Alienists generally are agreed that the old test of the knowledge of right and wrong in the abstract, or even as applied to the particular act in question, is not sufficient, as many a person clearly unsound mentally still retains such a knowledge. The true test, I take it, is the evident existence of mental disease, as shown by other circumstances, coupled with the manifest inability of the individual to exercise the normal self-control with regard to the particular act in question; this want of self-control being due to the disease present."

Dr. H. M. Quimby, superintendent of the Worcester Insane Hospital at Worcester, Mass., said in the course of his letter: "In my experience there are but few insane persons, unless they be far gone in dementia, who do not know the difference between right and wrong. Many of them, however, as a result of this disease, are unable to resist the promptings toward wrong acts. The proper test of responsibility, as it seems to me, is not whether a person knows the difference between right and

From Georgia comes the reply of Dr. T. O. Powell, superintendent and resident physician of the Georgia State Sanitarium at Milledgeville, who thinks that persons should not be convicted, unless they have the power to do what is right and reject the wrong, as a large number of insane know right from wrong, but are dominated by delusions over which they have no control."

Dr. George L. Kirby, superintendent of the State Hospital at Raleigh, N. C., aimed some welldirected blows at the present test in his letter. He wrote as follows: "The real test of responsibility is not a knowledge of right or wrong, with reference to the particular act, but knowing the right and knowing the wrong has the man the power to choose the right and avoid the wrong? It is not a question of knowledge, but the power to choose between two courses of action. If he has not such power, then his act is a product of disease and he is not responsible. In every case of suspected insanity especial effort should be made to ascertain whether the criminal act is the result of morbid reasoning or is the product of mental disease. If the act is the outgrowth of disordered reasoning, if the man's judgment is so enfeebled that he cannot properly estimate the natural relations of things, if his will power is so enfeebled that he cannot resist the powerful pressure from within that impels him to the deed, then the act may be said to be the product of his disease and is not criminal, no matter how clearly he may understand the nature and quality of the act, whether right or wrong, in the

eyes of the law, or how coherently and intelligently and determining should be taken into considera

he may converse on ordinary topics, and plan and effect an ingenious escape from detection."

Dr. Hooper, superintendent of the State Lunatic Asylum at Little Rock, Ark., stated that his opinion as to the test for insanity was fully expressed in the power of control test.

Dr. J. F. Calbreath, superintendent of the Oregon State Insane Asylum, which is located at Salem, expresses his opinion in the following forcible language: I regard the rule of English courts, making criminal responsibility depend on knowledge of right and wrong, as crude and unjust. A person accused of crime should have a more rational and extended test accorded him, which would include his power to act in control of his inclinations. Many persons have the intellectual knowledge necessary to discriminate between right and wrong, and are yet impelled by uncontrollable moral impulses to act against their better knowledge."

tion. A person may readily know that he is committing a wrong act, but because of impairment of mind, particularly a diseased condition of the will power and defective judgment, he is unable to resist the wrong and choose the right.”

From Illinois I received two replies, one from Dr. F. C. Winslow, physician and superintendent of the Illinois Central Hospital for the Insane, located at Jacksonville, and the other from Dr. J. C. Corbin, superintendent of the Illinois Eastern Hospital, near Kankakee. Dr. Winslow, in discussing the question, stated that the knowledge by a person of the difference between right and wrong was not "a true test or a fair test, because so many insane people about whose mental condition there is no doubt whatever are able to discriminate and do discriminate continually between right and wrong. A man's insanity cannot be determined by any one act, but affects, in a greater or less extent, Dr. Samuel B. Lyons, medical superintendent of his entire life and character, and in determining his Bloomingdale Asylum, located at White Plains, responsibility for the criminal act that is the only New York, gave the following response to my in- test that I would consider of any value.” quiry: "In general, I may say that it is recognized The superintendent of the Illinois Eastern Hosby medical men that an act committed by a man pital expressed a deep interest in the problem of as the result of disease, he should not be held re-arriving at a satisfactory test. He said that the sponsible for; and many insane people know question of responsibility for acts committed is a abstractly right from wrong and the penalty for very serious question, indeed, and to a man who committing a crime, but owing to their disease are has been in personal contact with cases presenting unable to refrain from committing it, the pressure all varieties of psychic abnormalities an answer to which their delusions exercise upon their minds be- such a question becomes much more difficult than ing greater than their ethical sense." to a lawyer who simply theorizes about the matter. I must say that the longer I study the insane, especially the so-called borderland cases, the more I am convinced that the simple knowledge of right and wrong as to a particular act is not, by any means, sufficient to enable us to place full responsibility upon a man because he has taken the wrong course. How many a man is simply a plaything in the hand of another of higher, more forcible intellectual activity? How often does a forcible suggestion, not necessarily hypnotic, play an important part, even in the activity of a mind nearest to the normal? And more yet what of the numerous cases of parapsychoses, suffering from imperative conceptions and those possessed of an explosive will? What of the epileptic whose hand is uplifted and finishes a murderous deed before he is actually conscious of what he is doing? I realize, of course, the dangerous chaos we would land in in case we attempted to solve all these problems in their details, but it certainly appears to me that responsibility from an act should not be placed upon a man simply because he knew the difference between right and wrong, but the volitional power should be made an object of a minute careful inquiry.”

Dr. J. S. Redwine, superintendent of the Eastern Kentucky Asylum for the Insane, at Lexington, said that he thought that "in addition to knowing right from wrong, a person should have power to act so as to carry out his choice."

I also received a response from Dr. Bigelow T. Sanborn, superintendent of the Maine Insane Hospital, at Augusta. Dr. Isaac Ray, perhaps the greatest writer upon insanity that America has yet produced, was for many years superintendent of the Maine Insane Hospital. The letter which I received from Dr. Sanborn was dictated in the very office and at the very window that Dr. Ray wrote one of the editions of his Medical Jurisprudence of Insanity. Dr. Sanborn has been true to the teachings of his illustrious predecessor, and he attacks the test adopted by most of our courts with a vigor that would have done credit to Dr. Ray. Dr. Sanborn says: "I, of course, believe that the rules established by many of our courts regarding the test of criminal responsibility of insane persons are radically wrong. If the knowledge of right and wrong, with reference to any particular act, is to be the test and that alone, I venture to say that one-half or two-thirds of the patients in hos- Dr. W. E. Stathers, superintendent of the West pitals for the insane would be held responsible for Virginia Hospital for the Insane, located at Weston, any particular act they might commit and there contends in his letter that insanity is a mental diswould be a hasty withdrawal from such hospitals ease and that the product of a mental disease cannot to the State penitentiaries. The power of choosing be a crime. Dr. Stathers says: "The real test of

the responsibility, in my opinion, is not a knowledge times was seized with an impulse to kill his wife, of right or wrong, with reference to the particular an impulse he found it impossible to resist, notact or deed, but, knowing the right and knowing the withstanding his devotion to her. On this account wrong, the question is: Has a man the power to he sought refuge in the asylum and did not dare choose the right and avoid the wrong?" separate himself from its restraining influences, although free while there from any homicidal or dangerous tendency."

Dr. William B. Lyman, superintendent of the Wisconsin State Hospital for the Insane, at Mendota, Wis., very forcibly gives his approval of the power of control test. Dr. Lyman's letter is as follows: "To my mind there is but one way to answer your question. The right and wrong test, as applied by the English courts heretofore and by most of our courts now, I believe to be radically wrong. It takes no cognizance of the will power of the individual, which is the very point to be considered in weighing the responsibility for action. Your position, as stated, that the person must not only have knowledge of right and wrong, but must have the power to choose the one and abstain from the other, is the proposition to adopt as the legal test for insanity."

I sent a letter to Dr. Richardson, superintendent of the asylum at Norristown, Pa. His reply was that "beyond all question the court which decides that the accused person must not only have the knowledge of right and wrong, but must have the power to choose the one and abstain from the other,' is the correct and only opinion which meets the case of a lunatic."

From Osawatomie, Kan., a place whose name is linked in history with that of John Brown, I received another reply. Dr. Uhls, superintendent of the Kansas State Insane Asylum, located at Osawatomie, said: "I believe that these matters should be decided with a view to the fact that it is not enough that the person simply shall know right from wrong, for there are many persons who seem to be able to determine very clearly both right and wrong and yet under given circumstances cannot pursue the course they know to be right, neither can they refuse to pursue the course they know all along to be wrong."

i

Dr. Searcy, superintendent of the Alabama Bryce Hospital, as Tuscaloosa, speaks of a class of persons that are "morally defective or imbecile, so that they are not able to hold to the right or avoid doing the wrong act, knowing it is wrong."

Dr. Henry P. Stearns, superintendent of the Retreat for the Insane at Hartford, Conn., and president of the Connecticut Medical Society, claims that "the derangement may affect something more than the intelligence as to the nature of the act, and thereby impair the capacity of self-control to such an extent that the conduct is no longer the outcome of normal mental activity, but, on the contrary, is the result of disease." Dr. Stearns refers to an eminent judge, the late James Steven, as having upheld the power of control test.

Dr. Frank C. Hoyt, superintendent of the Iowa Hospital for the Insane, situated at Mount Pleasant, summed up the situation in the following vigorous language: "I do not think any alienist can agree with the English courts, and most of the American courts, that a man should be held criminally responsible for an act if he were at the time of the commission of the act capable of judging between right and wrong. Such ruling, though it has been held for many, many years, is obnoxious to all persons who are familiar with insanity in its various forms. I could cite in the institution to-day hundreds of cases in which the patients were clearly capable of judging between right and wrong, and yet wholly incapable of controlling their actions. I have in mind now a case in which the patient was at times controlled by an intense homicidal mania. She realized that to injure any person would be wrong, and she did not wish to do so, and would go to her nurse, begging her to restrain her to prevent her from injuring someone, suffering most intense agony until she was under proper control. This patient knew right from wrong, and even went so far as to have the inclination to do right, but was possessed by an uncontrollable desire to injure someone."

Dr. C. B. Burr, of Oak Grove Hospital, Flint, Mich., wrote as follows: The only just rule of law is the second one which you mention, namely, that responsibility implies power on the part of the alleged criminal to choose the right and abstain from the wrong. The rule of law which you cite, the 'knowledge of right and wrong' test, is antiquated, unsatisfactory and unjust. There may be Another reply to my inquiry was received from practically complete knowledge of right and wrong Dr. Martin W. Barr, chief physician of the Pennin the abstract and inability on the part of the sylvania Training School for Feeble-Minded Chilperson beset to withstand the compulsion of a domi- dren. This institution is pleasantly situated in a nant delusion or place inhibition upon a morbid beautiful stretch of country at Elwyn, near Philaimpulse." Dr. Burr is the secretary and treasurer delphia. The name of the institution might lead of the American Medico-Psychological Association, many to believe that it was exclusively for those and is frequently called upon to testify as an expert who are children in years. But this is a mistaken in insanity cases. Dr. Burr mentions "the case of notion. It is for those who are children in mental a gentleman, formerly under treatment in the East- capacity, irrespective of their age. Among its inern Michigan Asylum, whose knowledge of right mates, numbering about a thousand, are those of and wrong was as good as my own, but who at all ages. The writer will always retain a pleasant

memory of an afternoon and evening spent at Elwyn, any crime. I am insane.' Such persons have as one delightful spring day, a few years ago. The full an appreciation and as clear a conception of visitors that day were treated to an admirable mili- infraction of the decalogue as a sane clergyman tary drill, given by the inmates, an excellent band in the pulpit. The additional test, held by some concert, given by two bands that were entirely com- of the courts in the United States, that one must posed of feeble-minded musicians, a very nicely not only know the difference between right and cooked meal, prepared by feeble-minded cooks and wrong, but must have the power or ability to choose served by maids who were pretty, but were lacking the one and abstain from the other, helps it some. in mental capacity. Dr. Barr, who is a frequent con- The question becomes a delicate one to consider tributor to the magazines on questions relating to even on this ground, from the fact that a man in insanity, said in his letter that he was glad to have a drunken brawl, or a man in a high passion, under the question as to the test of insanity ventilated, the impulse of the moment, has not the power or since "brutality on the one hand, and sentimentality ability to choose the one and abstain from the on the other, have so long continud to obscure truth other. When a man in high passion commits a that the bandaged eyes of justice have become a murder and kills a fellow patient, the result of the reality rather than a mere symbol. Criminology will power does not come into question." Dr. as a science," Dr. Barr continues, "is assuredly Ward, although repudiating the test of the English more the outgrowth of a positive demand of the courts and admitting that the power of control test needs of the times, than a merely interesting subject will be some improvement, thus suggests that cases of investigation. With its teachings the earlier of drunkenness and of high passion throw diffifindings of the English and American courts are culties in the way, when it is attempted to put no more in accord than they are with the later the power of control into operation. But cases evolved principles of sociology. The authority of of drunkenness will interfere in no way with such precedents must, therefore, inevitably pass adoption of the proposed test. Drunkenness and away, and the first step toward that passing has insanity are dealt with by the law as separate and been taken by the few courts that have endorsed distinct subjects. Different rules are provided for the power of control test." Dr. Barr mentions sev- each. It is not proposed to give the power of eral classes of persons who are criminally irre- control test where drunkenness is interposed as a sponsible. One class is that of the moral imbecile, defense. That test is only to be given in cases of who is "absolutely lacking in the moral sense, be- insanity, and drunkenness is not considered by the cause born without it, and, therefore, incapable of courts as being a branch of insanity. The proposed appreciating moral values, in spite of an appearance rule would never acquit a man merely because he often of marked intellectuality. Again there are was drunk at the time of committing the offense, highly emotional natures capable of insane out- because he is not entitled to the benefit of that rule. breaks under peculiar circumstances, who at other He is merely entitled to the rules, imbedded in the times are entirely rational. And yet another class law, for the protection of those who are intoxicated, who are subject to delusions, and who act under a at the time a crime was committed. Drunkenness compelling force, which is to them the higher law. presents an interesting phase of criminal responsiThese surely are not normal people. In any case bility, but by the arbitrary boundaries fixed by I believe the will will be found in abeyance, in sub- the courts, the cases of drunkenness are in no manjection, or totally diseased and enfeebled. Can such, ner affected by the rules of insanity. In the actual therefore, be accounted responsible?" trial of criminals it would, therefore, be impossible for a man, who was drunk when a deed was done, to take advantage of the liberal test which it is proposed to give in cases of insanity. The case of Kriel v. Commonwealth (5 Bush, 362) illustrates the law on this matter. The court in that case distinguished between drunkenness and that form of insanity, of which excessive drinking is the underlying cause, pointing out that drunkenness may mitigate, though not excuse, the crime, while insanity, even though caused by alcoholism, may Cases of drunkenoperate as a complete defense. ness, therefore, present no difficulty to the operation of the power of control test.

The remaining response of the twenty-four that I received is from Dr. John W. Ward, medical director of the New Jersey State Hospital at Trenton, a physician whose reputation is not confined to the State of New Jersey. Dr. Ward writes as follows: "I exceedingly regret that there seems to be quite a chasm between the legal and the medical aspect as to criminal responsibility. The old English test of 'Right and Wrong' is simply barbarous. Scores of men have been hung under that test, about whose insanity there was no doubt in anyone's mind who knew anything of the insane condition. We have scores of patients under care in this institution, some of them highly homicidal and suicidal, who know But the class of cases in which an act has been the difference between right and wrong as well as done in a high passion offers the most serious any persons outside of the walls of the hospital obstacle that exists to the successful application who are considered sane. I am not unfrequently of the power of control test. There are two told by patients. Why, doctor, if I should murder divisions of the class of cases in which passion is you, they could not hang me or convict me of an element, causing difficulties in the way of apply