logical darkness and confusion, is that a product of mental disease is not a contract, a will, or a crime. It is often difficult to ascertain whether an individual has a mental disease, and whether an act was the product of that disease; but these difficulties arise from the nature of the facts to be investigated, and not from the law; they are practical difficulties to be solved by the jury, and not legal difficulties for the court."
These American decisions are certainly an advance on any judgment concerning insanity which has been given in this country; they put in a proper light the relations of medical observation and law in questions of mental disease; and it cannot be doubted that future progress will be along the path which they have marked out. The question which will probably be submitted to the jury will be substantially, Was the act the offspring or product of mental disease?—and it will be seen that to lay down any so-called test of responsibility, founded on a supposed knowledge of right and wrong, is, as Judge Ladd remarked in State v. Jones, "an interference with the province of the jury, and the enunciation of a proposition which, in its essence, is not law, and which could not in any view safely be given to the jury as a rule for their guidance, because, for aught we can know, it may be false in fact." Seeing, then, that, by the unanimous testimony of medical men of all countries who have been practically acquainted with insanity, it is declared positively that such a proposition is false in fact, it is clear that the law, in enunciating it, is not only overstepping its rightful function, but actually perpetrating an injustice. It is simply doing in regard to insanity what it did formerly in regard to witchcraft—giving erroneous opinions on matters of fact to the jury under the name of law, and with all the weight of judicial authority. In one of the latest trials for witchcraft in this country, Lord Hale, whose crude dicta concerning insanity were so long acted upon in our courts of justice, instructed the jury: "That there are such creatures as witches he made no doubt at all. For, first, the Scriptures had affirmed so much. Secondly, the wisdom of all nations had provided laws against such persons, which is an argument of their confidence of such a crime." The jury accordingly found a verdict of guilty; the judge, satisfied with it, condemned the prisoners to death, and they were executed. It is one of the last executions for witchcraft in this country, for it occurred at a time—and this should never be forgotten—when the belief in witchcraft was condemned by the enlightened opinion of the country. As it was then with witchcraft, so it is now with insanity: the judge instructs the jury wrongly on matters of fact; they find accordingly a verdict of guilty; he is satisfied with the verdict, and an insane person is executed.
The falseness of the legal position will appear at once if we suppose a case of poisoning instead of a case of mental derangement: what would be thought of a judge who, when medical evidence of poisoning was given, should instruct the jury, as a principle of law,
