EMOTIONAL INSANITY. 
BY 
DAVID DUDLEY FIELD. 
READ BEFORE THE 
MEDICO- LEGAL SOCIETY 
OP THE 
CITY OF NEW YORK. 
3£*r\v : 
RUSSELL BROTHERS, PRINTERS, 
17, 19, 21, 23 Kose Street. 
1873. EMOTIONAL INSANITY. 
BY 
V 
DAVID DUDLEY FIELD. 
READ BEFORE THE 
MEDICO-LEGAL SOCIETY 
OP THE 
CITY OF NEW YORK. 
: 
RUSSELL BROTHERS, PRINTERS, 
17,19, 21, 23 Rose Street. 
1873. EMOTIONAL INSANITY* 
DAVJD DUDLEY FIELD. 
Is there such a thing as emotional insanity? and if there he, does 
it excuse an act otherwise criminal ? These questions depend upon 
another, more general, that is to say—What is insanity in its relation 
to crime? Satisfactory answers would be, as we all know, of immense 
service in the administration of criminal law; and the aim of this paper 
is to contribute whatever I may be able toward their careful consider- 
ation. My point of view is, of course, the legal side of that two-fold 
science which we call Medico-Legal, or, as 1 should prefer to express it, 
“Medical Jurisprudence.” The pathology of insanity is beyond my 
province. 
A crime is an act or omission forbidden by law, to which is annexed, 
upon conviction, a certain punishment. Our present inquiry relates 
solely to human law and human punishment. The element of religion 
or morals does not enter into the question. No reference is had to a 
violation of the moral or divine law, however great may be the guilt 
or awful the punishment. For the present hour we are concerned only 
with a violation of those laws which depend upon human sanction ; so 
that when I speak of the relation of insanity to crime, I mean the re- 
lation which it bears to a violation of the law of the land. Punish- 
ment is something annexed to crime, as a consequence, painful to the 
offender ; or, in other words, a penalty which he is to suffer for his 
violation of the law. 
What is the theory upon which punishment is inflicted ? It is not 
to avenge. “ Vengeance is mine saiththe Lord.” “To me belongeth 
vengeance and recompense.” The purpose of human punishment is 
neither revenge nor retribution but the enforcement of the law. This 
is effected by annexing a penalty to their violation. The penalty ope- 
rates not by way of satisfaction, but prevention. The object is to 
deter. The threat of punishment is addressed to all. An instance of 
* Paper read before the Medico-Legal Society of New York, April 24, 1873. 4 
punishment has a twofold operation—first upon the offender, to deter 
him from a repetition of the offence, and then upon others like him, to 
deter them by force of the example. The measure of a just punish- 
ment is, thereforh, that kind and degree which are necessary to such an 
end. The rightfulness of punishment depends solely upon its neces- 
sity. The test is not the greater or less ill deserving of the offender, 
but the safety of society. Laws are made' for the protection of rights. 
If it be necessary to have laws it is necessary to enforce them. 
Necessitas quod cogit defendit. Show me that a certain rule is neces- 
sary to the public good, and that a certain punishment is necessary to 
the enforcement of the rule, and I accept the conclusion as irresistible 
that this punishment may be rightfully inflicted. The authority to 
take human life can only be justified by such a course of reasoning. 
The argument embraces not only penal laws but all human conduct. 
If four men are at sea in an open boat, three of them struggling to 
reach the land, and the fourth, maddened by distress, insists upon up- 
setting the boat, the three may rightfully throw him into the sea. 
When Sir John Franklin, on his perilous journey in the frozen zone, 
shot one of his men who showed signs of mutiny, dangerous to the 
rest, he exercised an inherent right to protect the company which he 
was endeavoring to lead to a place of safety. Every age of the world 
has seen monsters, hostes humani generis, whom it was justifiable to 
exterminate. So, in all regular government, the safety of society is 
the warrant which the Almighty has given for the punishment of those 
who infringe its laws. This necessity is not only the warrant but the 
limit of the power—for useless punishment is itself crime. 
Starting from this point we enter upon the question of insanity in 
its relation to criminal responsibility. I say in this relation, because 
here lies the first distinction which it is necessary to bear in mind. There 
may be a degree of the disease which requires that the patient should 
be shut in a lunatic asylum, or which would invalidate his contract or 
his testament, but which, nevertheless, would not absolve him from the 
charge of a criminal offence or its consequences. Our statutes may 
declare, as they do, that “ no act done by a person in a state of insanity 
can be punished as an offence, and no insane person can be tried, 
sentenced to any punishment, or punished for any crime or offence 
while he continues in that state.” But this is general language, which 
needs qualification in its application to the facts of particular cases. 
It is curious to observe with what different views different persons 
regard the question of insanity. The lawyers do not agree with 
the physicians, or among themselves. The physicians do not agree 5 
with one another. Scarcely any two writers, or, for that matter, any 
two judges, agree upon the same definition or test. This strange disa- 
greement it may be worth our while to illustrate by a few examples: 
In 1843 the Judges of England answered certain questions pro- 
pounded to them by the House of Lords, in reference to McNaugh- 
ton’s case, to one of which the answer was as follows: “The jury 
ought to be told in all cases that every man is presumed to be sane, 
and to possess a sufficient degree of reason to be responsible for his 
crimes, until the contrary be proved to their satisfaction, and that, to 
establish a defence on the ground of insanity, it must be clearly proved 
that, at the time of committing the act, the party accused was laboring 
under such a defect of reason, from disease of the mind, as not to 
know the nature and quality of the act he was doing, or, if he did 
know it, that he did not know he was doing what was wrong.” 
The test thus given is rejected by Bucknill, who, in his essay on 
“Unsoundness of Mind in Relation to Criminal Acts,” says: “We 
must therefore conclude that this, the main portion of the Judges’ con- 
dition of exemption from responsibility and punishment, on the plea of 
insanity, is erroneous in principal and inapplicable in practice.” And 
Dr. Hammond says : “ Neither is the knowledge of right and wrong a 
test of the mental condition of an individual, except to a very limited 
extent. The faculty in question is not inherent, but is the result of 
education.” 
In this country, nearly twenty years ago, on the trial of Hunting- 
ton for forgery, an attempt was made to establish the defence of moral 
insanity, which is but another name for one species of emotional in- 
sanity. On this occasion the City Judge of New York, Judge 
Capron, charged the jury in these words : 
“But it is insisted for the prisoner that insanity, either general or 
partial, may exsist, and the subject be totally unable to control his 
actions, while his intellect, or knowing and reasoning powers suffer no 
notable lesion. By this theory insanity is regarded as a physical dis- 
ease, an affection of the brain, by which the freedom of the will is im- 
paired or destroyed, and the subject is thus wholly deprived of the 
ability to govern his acts. It is claimed that persons thus afflicted may 
be capable of reasoning or supporting an argument or any subject within 
their sphere of knowledge. In a more practical sense, it is claimed 
that a person may steal your property, burn your dwelling, or 
murder you, and know that the deed is a criminal offence, and that 
he will be punished if tried and convicted, and may be able to reason 
on the subject, and yet be guiltless on the ground of insanity ! This 6 
affliction has received the name of moral insanity, to distinguish it 
from intellectual insanity ; because the natural feelings, affections, incli- 
nations, temper, or moral dispositions only are perverted, while the 
mind, the seat of volition and motive, remains unimpaired. I will not 
assert positively that this theory is unsound. It may be reconcilable 
with moral responsibility for human conduct, but I am not reluctant to 
confess my own mental inability to appreciate harmony between the two 
propositions, if it exist. This theory may afford a more just and 
humane standard by which to test the presence of insanity in a particu- 
lar class of cases than the existing rule; but, until the proper author- 
ities sanction that theory, it cannot be regarded here.” 
On the trial of Sickles for murder, a year or two later, the J udge of 
the Criminal Court in Washington gave these instructions to the jury : 
“ If, from the whole evidence, the jury believe that Sickles com- 
mitted the act, but at the time of doing so was under the influence of 
a diseased mind, and was really unconscious that he was committing a 
crime, he is not in law guilty of murder. If the jury believe that, 
from any predisposing cause, Sickles’ mind was irripaired, and, at the 
time of killing Key, he became or was mentally incapable of govern- 
ing himself, in reference to Key as the debaucher of his wife, and at 
the time of committing said act was, by reason of said cause, uncon- 
scious that he was committing a crime as to said Key, he is not guilty 
of any offence whatever.” 
In Willis’ case, decided by our Court of Appeals in 1865, Chief 
Justice Denio observed: “ The Judge might have said that if the 
prisoner, when he killed the deceased, was in such a state of mind as 
to know that the deed was unlawful and morally wrong, he was re- 
sponsible, and that otherwise he was not. This would, perhaps, have 
been more precise and discriminating.” 
In Wagner’s case, tried in New York the same year, this language 
was addressed by the Court to the jury : “ I have been requested to 
charge you that if the prisoner committed the act in a moment of 
frenzy he cannot be convicted of murder in the first degree. I not 
only charge that proposition, but, if his mind was in that condition, he 
cannot be convicted of any offence. The true test of responsibility 
for acts committed is commonly known as the test of right and wrong. 
If the jury are satisfied that the prisoner knew the difference between 
right and wrong, in regard to the particular act in question, then the 
law holds him responsible for the act. If they are not so satisfied, of 
course it would be their duty to acquit him absolutely.” 
In Cole’s case, tried in Albany in 1868, Mr. Justice Hogeboom told 7 
the jury that, “ If reason was in fact dethroned; if Cole was not at 
the time in the possession of his faculties; if they were suspended and 
lost in the presence of and under the influence of an overwhelming 
domestic calamity; if Cole was at the time incapable of distinguishing 
between right and wrong in regard to this transaction, or of appre- 
ciating the moral quality of his act, he could not be held criminally 
responsible.” 
In MacFarland’s case, tried in 1870, Recorder Hackett, of New 
York, charged the jury that: “ Sanity is the state in which a man 
knows the act he is committing to be unlawful and morally wrong, 
and has reason sufficient to apply such knowledge, and to be controlled 
by it.” 
On the trial of Montgomery at Rochester, in 1871, Mr. Justice 
Darwin Smith charged the jury that: “ There is now no room for 
doubt as to the rule of law in this State. 1A man must have sufficient 
knowledge, reason, capacity, judgment and mental power to under- 
stand not merely that his act is a violation of law, but that it is in- 
trinsically wrong.’ Every human being endowed with reason knows 
that to take the life of a human being is against the law of nature and 
of God. It is not sufficient that he knows the thing is an offence 
against human laws, but he must have reason and capacity sufficient 
to know that he is not only violating the laws of man but the laws of 
God and nature.” 
On Scannell’s trial, a month ago, Mr. Justice Brady charged the jury 
as follows: 
“ Insanity, considered in its legal aspect, may be stated thus: It 
means such a defect of reason as would render the prisoner unconsci- 
ous of the nature, and character, and consequences of his act, and of its 
unlawfulness and immorality. A man is, by the law of this State, 
responsible for his acts when he knows what he is doing, is capable ©f 
distinguishing right from wrong, understands the consequences of his 
act, and that it is in violation of the laws of God and man. In other 
words, if the prisoner was in such a state of mind as to know that 
the deed was unlawful and morally wrong, he is responsible; other- 
wise not. If he was incapable of distinguishing between right and 
wrong, did not know that the act he was committing was unlawful 
and morally wrong, you cannot convict him of murder.” 
Balfour Browne, in his late work on the medical jurisprudence of 
insanity, gives the following as his conclusions: “We are nowin a 
position to consider the capacity to commit crime. The statement of 
the proposition that the criminal law looks mainly to the intention 8 
which actuated the accused, has been said to imply the presumption 
that the individual whom it is sought to bring within the operation of 
the law has mental capacity, is a free agent, and possesses the power 
of electing to abstain from what is forbidden, rather than suffer the 
consequences of offending; and the criminal law of England, there- 
fore, declines to punish where the actor, from want of understanding 
or mental disease, is not in a position to choose freely ; and it might 
properly be added where, through such enfeeblement or derangement, 
motives have lost their power of making a man choose the good 
rather than the bad, and the pleasant rather than the disagreeable. 
“ It is the same principle that induces the law to exempt very young 
children from the criminal responsibility of their acts; and the same 
principle is to be found as the reason for the non-infliction of legal 
penalties where the individual is, against his will, compelled to do a 
■wrongful act, inasmuch as the dread of distantly future penalties can- 
not, in reason, be expected to prevail against the fear of present 
suffering. 
“ Were it more generally understood—were it more thoroughly ap- 
preciated—that it is really the same fundamental principle which 
induces the law to forego its penalties, even after proof of the criminal 
act done, in these two classes of cases, less difficulty would undoubt- 
edly arise in practice as to what amount and what kind of insanity is 
sufficient to establish a claim to immunity from punishment. Were it 
once held that the proof of that amount of insanity would relieve from 
the consequences of a criminal act which deprives the individual, 
either by amentia, dementia or mania, of that amount of free will or 
choice, of that power to balance and appreciate motives which is found 
in the ordinary ranks of mankind—were it held that the amount of 
insanity which deprives a man of this, as the amount of duress which 
deprives a sane man of the same power, would relieve an individual 
of criminal responsibility, no doubt could, it seems, in any case, 
arise.” * * * 
And again: “A German jurist (Mittermaier), appreciating the 
weight of the medical testimony in criminal cases, has maintained 
that two conditions are required to constitute that freedom of will 
which is essential to responsibility, viz., a knowledge of good and 
evil, and the facility of choosing between them. 
“This definition is, perhaps, more nearly correct than most that 
have been given ; but it seems to us, looked at in reference to the most 
recent philosophical researches, and also in relation to the duty of the 
law to protect the sane from injury, as well as to protect the insane 9 
from unnecessary, useless punishment, that the best definition that can 
be given of legal responsibility is a knowledge that certain acts are 
permitted by law, and that certain acts are contrary to law, and com- 
bined with this knowledge the power to appreciate and be moved by 
the ordinary motives which influence the actions of mankind.” 
The various definitions of insanity, or of that degree of it which 
exempts from criminal responsibility, contained in the extracts that I 
have here given, not only differ among themselves, but fail, as I think, 
to furnish a true and plain rule for judicial investigation—such a rule 
as would be scientifically exact, and, at the same time, easily under- 
stood by juries. 
It may be rash for me to try where so many have failed ; but un- 
less there be trial there cannot be accomplishment, and it is the 
privilege of all to endeavor, though only one may succeed. Let me, 
then, offer my contribution to the work of this society, by helping, 
even though it may be in a small degree, to answer a most important 
and interesting question. 
It appears to me that the true answer is to be evolved out of the 
theory which I have given of crime and punishment. The ideas of 
crime and punishment are correlative. That only is crime to which 
punishment is annexed as a consequence, and everything to which 
punishment is annexed is criminal. Crime being, as we have seen, an 
act or omission forbidden by law, to which punishment is annexed, 
and the object of punishment being to deter, it should seem to follow 
that punishment is to be inflicted only when it will be likely to deter. 
But the rules of law are general, and must provide for punishment 
upon general considerations. They should annex a penalty to an in- 
jurious act whenever, according to the general experience and judg- 
ment of mankind, the penalty will deter the actor from the repetition 
of the act, and others like him from imitating it. If it wfill probably 
have that effect, society may inflict the punishment; if not, not. The 
question, then, of insanity, in relation to criminal responsibility, is not 
merely whether the offender is of unsound mind, but whether his un- 
soundness is of that kind and degree that he would not, according to 
the general experience and judgment of men, be deterred by punish- 
ment from a repetition of the act, if committed by himself, or of 
committing it, if seen by him to be followed by punishment when 
committed by others. And all this depends upon the question whether 
the offender was or was not a, free agent; that is to say, whether he 
acted from compulsion so strong that the fear of punishment could not 
overcome or withstand it. There must have been freedom of choice 10 
between doing and not doing, and capacity to choose. Since the 
object of punishment is, as I have said, to deter an offender and others 
like him, and since one can be deterred so far, and so for only, as his 
act is voluntary, the question of legal responsibility must come to 
this : Was the person accused capable of knowing that the act or 
omission was a violation of law, and of refraining from it? Was he 
capable of knowing and ref raining ? I do not ask whether he did 
know, but whether he was capable of knowing. If he was capable of 
knowing and of refraining, then he was, in the sense of the law, a free 
agent. The points to be submitted to a jury are these : Was he capable 
of knowing that what he was about to do was a violation of law, and, 
being thus capable, could he have refrained from doing it, or, to use a 
common phrase, “ could he help itand I venture to say that upon 
these two ultimate questions hangs the decision of the issue of insanity 
in criminal cases. 
The questions assume, of course, that the offender is of the age of 
discretion, and being thus advanced in years is now below it in mind. 
Children under seven years of age and idiots are not within the scope 
of criminal law', though they can be operated upon by motives and 
restrained by punishment. Two boys, five and six years old, playing 
together, we will suppose, have been taught that one must not strike 
the other, or, if he does, that he will be punished for it, and, ordina- 
rily, this knowledge will control him; but if one should happen to 
strike a blow, causing death, no one would think of hanging or im- 
prisoning him for it. Why ? Because the fear of such a punishment 
wTould have no greater effect in deterring the child than the slight dis- 
cipline of the nursery. It is not that he does not know the act to be 
wrong, or that the fear of punishment would not, in most instances, 
deter him from striking his companion, but because his reason is too 
feeble, and his will is so little under subjection to his reason that a 
sudden impulse overcomes him. You may even suppose that he in- 
tended to kill, not from malevolence, but from curiosity or an imagin- 
ation excited by stories of killing, but he has no idea of death as a 
consequence of the blow; and if he had, as a small object present is 
stronger with him than a great one future, so an impulse of the 
moment upon his feeble mind overcomes any idea of consequences at 
a distance. The same reasoning which would exclude a child from 
the scope of criminal law would exclude also an idiot or an imbecile. 
There must be a capacity to reason, and a power of reason over the 
wrill sufficient to deter. 
Excluding, then, children under the age of discretion, idiots and 11 
imbeciles, as not within the range of our immediate inquiry, I recur 
to the question of insanity in reference to other persons; and taking 
the rule of criminal responsibility as 1 have stated it, let us apply it 
to the different stages of mental disease. In doing so we should bear 
in mind that whatever be the true rule, it is, in the present state of 
the law, applicable to every kind of crime and punishment, whether 
the crime be in act or omission, or the punishment be death, imprison- 
ment or fine. 
And here let me observe that I think much of the difficulty, in re- 
gard to the defence of insanity, has arisen from the desire to avoid the 
extreme punishment of death. Juries shrink from taking the life of 
one who may, by possibility, be guiltless of intentional wrong, and 
catch at any plausible excuse for treating the case as one of insanity. 
We should, however, not be influenced by such considerations, and 
must treat the question as independent of particular punishments. If 
insanity is a defence when the charge is murder, it is also a defence 
when the charge is harboring a fugitive slave or smuggling goods 
over the frontier. 
Insanity, in its general pathological sense, is thus defined by Dr. 
Hammond, than whom there is no higher authority : “ As no two 
brains are precisely alike, so no two persons are precisely alike in 
their mental processes. So long, however, as the deviations are not 
directly at variance with the average human mind, the individual is 
sane; if they are at variance, he is insane.” The medical profession 
thus pronounces that person insane whose mental processes are directly 
at variance with those of the average human mind. Now, whatever 
may be the real essence of the mind, we know it only by its phe- 
nomena, and these manifest themselves in four different forms, namely, 
in the perceptive faculties, the reasoning faculties, the emotional facul- 
ties and the executive faculties; or, in other words, as affecting the 
perceptions, the reason, the emotions and the will. Under the head 
of emotions I place the passions, the appetites and the affections. I 
do not forget that the present most generally accepted division of the 
mental faculties i$ into intellect, sensibility and will—the intellect in- 
cluding both the perceptive and the reasoning faculties ; but the divi- 
sion I have here given is sufficiently accurate and more convenient for 
my present purpose. And taking the definition of insanity shown us 
by the medical profession in reference to the mental faculties as thus 
divided, we say, that person is insane whose mental processes are 
directly at variance with those of the average human mind, in respect 
either to his perceptions, his reason, his emotions or his will; that is 12 
to say, there may be perceptional insanity, intellectual insanity, 
emotional insanity and volitional insanity. I have not time to give 
instances as illustrations of these different kinds of insanity. It is 
enough to say that, in perceptional insanity, those parts of the brain 
only are disordered which are concerned in the formation of percep- 
tions, and the results are the formation of false perceptions, which 
are designated as illusions or hallucinations, as they proceed from 
without or from within. In intellectual insanity the essential feature 
is delusion or false belief, in respect to material objects; in emo- 
tional insanity those parts of the brain only are disordered which are 
concerned in the production of emotions, and in volitional insanity 
the will has passed beyond the control of the reason. 
This is the medical side of insanity. Now, let us look at the legal 
side. Here the question is, not whether there is insanity in the medi- 
cal sense, but whether there is that kind and degree of it which, as a 
general thing, would make punishment useless, considered as a motive 
to deter. Have we not the key to the answer in what has been 
already said ? The will is the executive department of the mind. 
Whenever a crime is committed, or the temptation to commit it is 
resisted, the commission and the resistance are acts of the will; and 
whenever the will acts in resistance of temptation it acts in obedience 
to the reason ; the temptation generally comes from the perceptions 
or the emotions; the resistance from the reason and the will. It is 
the will which executes and the reason which guides. Choice is an act 
of reason ; execution is an act of the will. Whenever, in respect to 
a particular transaction, the subject of a criminal investigation, we find 
reason left sufficient to retain the power of choice, and control of the 
reason over the will sufficient to make it obey, then the person charged 
is, in the eye of the law, responsible for his acts and amenable to 
punishment. 
Such is the rule which appears to me philosophical and easily intel- 
ligible. It should seem thence to follow that though there be such a 
kind of insanity as perceptional, and also such a kind as emotional, 
yet that neither of them taken by itself, nor both together, can justly 
exculpate the offender or relieve him from punishment. For example, 
if a person suffering under perceptional insanity thinks he sees an angel, 
and hears a voice, as of the voice of God, commanding him to kill his 
child, and acts in obedience to the supposed command, I insist that, 
nevertheless, he should be punished for it. So, if a person suffering 
under emotional insanity, caused by brooding thoughts of intolerable 
wrong, real or fancied, shoots his enemy in the street, I would deal 13 
with him in the same way; and so I would deal with one who, under 
a morbid, or, as it is sometimes called, irresistible impulse, pushes 
another over the side of a ship or over a precipice. Such impulses 
should not be accounted uncontrollable. I commend the answer of 
that sturdy English judge who, when told that the defendant had com- 
mitted homicide under an irresistible impulse, replied that the law of 
England had also an irresistible impulse to punish him for it. Many 
persons have a morbid impulse to leap from a high rock, but they can 
restrain themselves. There are thousands who cannot lean out of a 
window without feeling an impulse to throw themselves to the ground. 
The drunkard has a morbid impulse to drink. He who uses tobacco 
to excess is, in common parlance, mad for it, but none of them is 
beyond accountability for the indulgence of these impulses and 
desires. 
The government of insane asylums is a standing contradiction of 
some prevalent theories respecting insane criminals. It goes upon 
the assumption that the unsound of mind are influenced by motives, 
and can be restrained by fear. One of the most eminent of our phy- 
sicians, on being asked by me whether the insane are not affected by 
the fear of punishment, answered : “ Yes; there is scarcely one of 
them who, if he wasted his butter, and were told that if he wasted it 
again it would be taken from him, would not refrain from doing so.” 
Bucknill, on this point, makes the following observations: “ On the 
other hand, freedom of will, the fountain head of responsibility, is in- 
terrupted by the cerebral disease, but not wholly interrupted. If 
strong motives are addressed to the patient, he is capable of control- 
ling the manifestations of the malady under which he suffers. ‘ I am 
convinced,’ says Langerman, * that, even in the highest degree of in- 
sanity, there still remains a trace of moral discrimination with which 
we may connect the train of the patient’s ideas. The extent to which 
the insane are capable of controlling their actions is conspicuous in the 
wards of a well ordered lunatic asylum. The medical officers of such 
an institution find some two or three per cent, of the patients whom 
no moral influences appear to touch; but the vast majority are enabled, 
with a little encouragement and assistance, to control their passions 
and emotions with nearly as much success as the people out of 
doors.’ ” 
The law contradicts itself, moreover, in a remarkable manner. It 
will not excuse a man who violates it ignorantly, even though the act 
done be harmless in itself, as, for example, ferrying without a license, 
or buying lands in suit, both of which are misdemeanors; nor will it 14 
excuse one who, in a fit of intoxication, commits an act of violence 
upon another. The reason given for the former is, that all are bound to 
know the law, though ignorance may enter into the question of motive. 
He who does not know whether an act is contrary to law has not a 
knowledge of right and wrong, as determined by the law in reference 
to that act. So the reason given for the latter is that the offender 
made himself drunk, but the punishment inflicted is not for getting 
drunk, for that is only a slight fine, but for the greater offence, the law 
taking no account of the mental disturbance which the intoxication 
has wrought. Then the insane are, with rare exceptions, admitted as 
witnesses; but witnesses who swear falsely are amenable to the 
charge of perjury, and it would be absurd to allow one to testify, and 
by his testimony to cause another to lose his estate or his life, and yet, 
when the witness is called to account for his testimony, to excuse him 
on the ground that he was insane. 
My position then is, that emotional insanity does not excuse an act 
otherwise criminal. In saying this, I consider emotional insanity by 
itself. I might say the same thing of perceptional insanity. Neither 
of these forms, considered by itself, or in connection with one another, 
exculpates an offender ; but I by no means assert that either, or both, 
may not lead to or be mingled with those other forms of insanity 
which do exculpate. 
The disrepute into which the defence of emotional insanity has 
fallen is owing to the fact that this form of the disease has been put 
forward as a defence by itself; but it must not be forgotten that it 
may and does often lead to the other forms, viz., those of intellectual 
or volitional insanity. Bucknill says : “ Of late years the opinion has 
been gaining ground among the best psychopatists that, with few ex- 
ceptions, the embarrassment of the intellect is secondary, and conse- 
quent upon the disorder and perversion of the emotive faculties.” 
* * * “ Insanity is always in the first instance emotional.” * * 
“ Intellectual insanity is always secondary.” And in another place he 
says : “ Sound philosophy points to the emotive part of our nature as 
the common if not the only source of mental disease.” 
Intent is a necessary ingredient of crime. There must be a union 
of act and intent. What is here meant by intent 1 Not the intention 
to do a moral wrong, as judged by the conscience of the actor, but an 
intent to do the act which the law pronounces wrong. This intent the 
actor must be capable of forming before he can commit a crime and 
be justly subject to punishment. 
It must never be forgotten that insanity is a disease, and whether it 15 
be scientifically accurate to say that the mind is diseased, it is true 
that whenever there is insanity there is a disease of the brain, so that 
if the brain is not diseased there is no insanity. This consideration 
disposes of all those cases in which the act is done in the heat of pas- 
sion or in a moment of frenzy. Few homicides are committed except 
in passion or frenzy. A murder in cold blood, deliberated on before- 
hand, is a rare occurrence; but no matter how hot the passion, or how 
fierce the frenzy, that is not insanity; and the question comes at last 
to this: Was there a disease of the brain? which is to be proved, 
like any other fact, by those competent to testify in the matter, 
I cannot leave the subject of this paper without expressing my 
earnest conviction that the knowledge of mental disease has now ar- 
rived at such a degree of accuracy that there should be a new classi- 
fication of punishments. The present classification is a great improve- 
ment, doubtless, on its predecessors, which were the product of a 
ruder age; but we have not yet, by any means, reached that perfec- 
tion of classification which the present state of our knowledge justifies 
and requires. The quality of the act, as measured by the degree of 
intelligence, should enter into the question of the degree of punish- 
ment ; and, while it may be true, as I have already said I think it is, 
that perceptional and emotional insanity should not exempt from pun- 
ishment, I still think that the punishment should be graduated more 
than it is according to the mental condition of the offender. It does 
not accord with our notions of justice that the strong and hardened 
ruffian and his weak and greatly tempted brother should, for the same 
outward act, suffer the same punishment. What I contend for is this, 
and this only, that emotional insanity should not exempt from punish, 
ment; and that so long as the law affixes only one degree of punish- 
ment to the outward act which the offender has committed, whatever 
may be the inward thought, that degree of punishment should be 
inflicted. 
And I must also think that, whenever the administration of the law 
is brought to that state to which our advancing civilization must bring 
it, the question of insanity will be separated from other questions, and 
medical men will sit with the judges, as assessors or experts, to aid in 
the decision, in some such manner as nautical men now sit in the Eng- 
lish Admiralty upon cases of collision. 
Having passed thus rapidly over this vast field of inquiry, we are 
able, I think, to state the following propositions as the results: 
1. Children under the age of discretion, idiots and imbeciles are not 
within the discipline of criminal law. 16 
2. The mental unsoundness of other persons, commonly designated 
as insanity or mania, is, in itself, or is attended by, disease of the 
brain, so that no heat of mere passion and no degree of mere frenzy 
can in any just sense be pronounced insanity by either of the pro- 
fessions. 
3. The defendant’s notion of the moral quality of his act is not a 
proper element in the determination of his guilt or innocence before 
the law. 
4. The questions to be submitted to the jury, in cases of alleged 
insanity, are—first, was the defendant capable of knowing that the thing 
charged against him was a violation of law 1 and next, was he capable 
of resisting the temptation thus to violate the law ? 
5. Neither perceptional nor emotional insanity by itself, nor both 
together, can be accepted as excuse for criminal responsibility. 
6. Intellectual or volitional insanity absolves from criminal respon- 
sibility when, and only when, the reason has lost either the power of 
choice or the power of controlling the will. 
7. In every case of acquittal on the ground of insanity the defend- 
ant should be forthwith placed in a lunatic asylum, and there kept 
until it is proved that he is restored to such a state of sanity as to re- 
move all apprehension of a recurrence of the disease. 
8. The present gradation of punishments is unsuited to the present 
condition of medical learning, and a change is required which shall 
make the law punish, not only according to the harmfulness of the 
outward act, but according to the quality of the inward spring of 
action.