cept Saturday, when it is only permissible to work from 7 a. m. to noon. Persons engaged in preserving perishable goods, in canning fruit and in glass works are excepted.

Thirty-one States and the District of Columbia have laws requiring employers to provide seats for the use of female employees when they are not actively engaged in their duties. In the State of Florida the law requires that seats be provided for male as well as female employees.

The laws forbidding the employment of women in operating or cleaning dangerous machinery while in motion have not been given the attention which they deserve by the State "law makers." Connecticut, Missouri, New York and West Virginia are the only States where laws of this kind exist.

Owing to the unhealthfulness of polishing and buffing, the State of New York has enacted a law which prohibits the employment of females in factories to use or operate any emery, tripoli, rouge, corundum, stone, carborundum, or any abrasive or emery polishing or buffing wheel where baser metals are manufactured.

Twelve States have enacted laws which prohibit the employment of females in mines. The laws of Utah forbid the employment of women in mines or smelters. In Wyoming women may not work in coal, iron or other dangerous mines. In Pennsylvania it is unlawful to employ women in or about mines. They are not even permitted to enter any bituminous coal mine for the purpose of employment or for any other

often wisely and well, with all the various questions that concern the insane. From so vast a field the mere essayist may well turn in despair.2

The object in this paper is merely to present some rather curious matters concerning the evolution of trial by jury in English law, and especially as these matters affected the insane. It is the trial of the insane for crime in olden times that will occupy us; for this is a subject fraught with great interest, and one that has a bearing on what we see almost daily in our midst; that is, the defense of insanity in our criminal courts. And yet so large is even this limited subject, that in these pages I shall hope merely to trace out the very gradual growth of the right of an insane man, on trial for his life in an English court, to be represented by counsel, and even to have his witnesses called and sworn.

It doubtless seems now such an inalienable right for an accused man, on trial for his life, to have counsel, and to call his witnesses, that probably few persons are aware that these rights have only been acquired after centuries of struggle, and only within comparatively recent years; and that in former times the spectacle was sometimes displayed in the Eng lish courts of an insane man being called on to make his own defense before a jury, and to prove his own insanity, without the aid of counsel or of sworn wit

nesses.

According to the old common law of England a man on trial for either treason or felony was not allowed counsel; neither was he allowed to call witnesses. In this latter respect the common law followed the civil law, or law of the Roman Empire. Sir Fitzjames Stephen3 says that the right to call witnesses under the Roman law was doubtful, and that even trial by jury in its original form dispensed with witnesses altogether; that under the civil law as administered all over the continent down to recent

times, the prosecutor only could call witnesses; and that in England the prisoner's right to call witnesses upon equal terms with the Crown was not estab lished till the reign of Queen Anne. On this subject Blackstone says that as counsel was not allowed to any prisoner accused of a capital crime, so neither should he be suffered to exculpate himself by the testimony of any witnesses; and it is to the credit of

American Journal of Insanity.]

The history of the medical jurisprudence of insanity has not yet found a pen worthy of so great a subject, although able pens have essayed it, especially that of Morel,1 It has numerous aspects, any one of which would serve in this age of research for a copious monograph. The subject, indeed, reaches far back into antiquity, and Roman law especially dealt,

her chief justice that the prisoner should have his witnesses the same as the crown. Nevertheless when the courts at last grew ashamed of the old law, and

2 The Institutes of Justinian contain many provisions for the insane, and these were copied almost verbatim by Bracton in his De Legibus et Consuetudinibus Angliæ, about 1265, and thus found their way into the English common law.

3 History of the Criminal Law of England, Vol. 1,

criminal law, which condemned prisoners, sane and insane alike, without allowing them to be properly heard. But Blackstone further tells us that by his time the judges had become so sensible of this defect that they did not scruple to allow a prisoner counsel to instruct him what questions to ask or even to ask questions for him. Hence, it was not until well on in the eighteenth century that this injustice began slowly to be rectified. Nevertheless it was not entirely corrected for nearly a century later, for coun sel were not allowed to address the jury, and men continued to be tried for murder without being properly defended.

In the case of treason, however, the abuse was corrected earlier, for by statute 7 Will. 111, c. 3, persons indicted for some forms of treason were allowed two counsel, and the reason assigned by Blackstone was, lest their cases should be prejudiced by "higher influence," meaning the influence of the King and the government. But on the subject of insanity and high treason the English common law had formerly been cruel and unjust, for Coke tells us in the Beverly case12 that non compos mentis may commit high treason; as, if he kills or offers to kill the King;" and Lord Chief Justice Hale, referring to this passage in Coke, says: "This is a safe exception, and I shall not question it, because it tends so much to the safety of the King's person."13 And so intense was this prejudice against the insane regicide that by the statute, Henry VIII, chap. 20, it was provided that if a person, being of sound mind, should commit high treason, and afterwards fall into madness, he might be tried in his absence, and executed as if he were sane. That is, the lunatic had neither the right to call witnesses, to have counsel, or even to be present at his trial. But this infamous statute was too much even for the olden times; it was repealed by statutes 1 and 2, Philip and Mary, chap. 10; and it has been condemned by all the best authorities.14

As a part of the barbarous injustice of the old common law, the prisoner was not allowed even to have a copy of the indictment before trial; and a serio-comic scene was enacted in the case of Rose

well,15 on trial for high treason, when the prisoner, a religious monomaniac, after being refused counsel, demanded every once in a while in open court that the indictment be read to him, now in English, and again in Latin. As the indictment was interminably long, this process consumed much time and sorely tried the patience of the lord chief justice.

Neither was the court satisfied in the olden times with exercising a parental control over the prisoner merely; it did the same thing for the witnesses and

12 4 Coke, 124.

131 P. C., chap. IV, p. 37.

14 Blackstone, 4 Com. 25.

15 Howell, State Trials, X, 147.

the jury. Witnesses were abused and menaced from the bench. Some of the harangues of Jefferies while presiding at state trials are almost incredible; he accused and railed at witnesses, calling them oppro brious names and hurling blasphemous maledictions at them.16 The lot of the jury was no better; in fact it was sometimes even worse. In the case of Sir N. Throckmorton, tried for high treason in 1554, the jury, which acquitted the prisoner, were fined and imprisoned for the verdict. Eight of them had to pay 220 pounds each, and the other four got off, having apologized.17 A recent English writer18 says that to go back even to the beginning of the nineteenth century, is to return to an age of barbarism; and another writer19 says that formerly judges browbeat these defenceless prisoners, jeered at their efforts to defend themselves, and censured juries who honestly did their duty. Thus it was when the judge was counsel for the prisoner."

of

There is a curious account of legal procedure in criminal cases in a book written by Sir Thomas Smith, secretary of state to Queen Elizabeth.20 From this book it appears that before the English civil war, in the seventeenth century, the accused man before trial was kept in close confinement and could not prepare for his defense. He had no notice beforehand of the evidence against him, and he was obliged to defend himself at his trial as best he could. with no counsel to help him, and with no witnesses in his behalf. There were no strict rules of evidence. as there are now; everything was left to the discretion, or caprice, of the court; and the procedure often degenerated into a mere wrangle between the prisoner and the witnesses for the crown. How an insane man would fare in such a trial, may easily be imagined.

In spite of its defects, however, the old common law of England was in theory absolutely just to the insane; and no code of law in any nation ever threw such safeguards about the lunatic. Thus an insane man was not only exempt from the penalties of crime but it was also a part of the law that he should not even be put on trial for his alleged offense so long as his insanity endured. All the old authorities, such as Coke,21 Hale,22 Hawkins,23 and Blackstone24 are agreed on this subject. Hale says that if a man of sound mind commit a capital offense, and before his arraignment becomes mad, he ought not to be ar

16 See Hargrave's State Trials.

17 Stephen, op. cit., Vol. 1, p. 326.

18 Sir S. H. Poland, Century of Law Reform, p. 42. 19 Odgers, ibid., p. 41.

20 Commonwealth of England, ch. XXV, pp. 183

201.

21 3 Inst. 4.

22 1 Pleas of the Crown, 34, 35.

23 1 P. C., chap. 1, sec. 3; 1 Chitty, Crim. Law, 761.

24 4 Com. 24, 395, 396.

raigned; and if, after his plea, and before his trial, he becomes insane, he shall not be tried; or if after his trial, he becomes insane, he shall not receive judgment; or if, after judgment, he becomes insane, his execution shall be spared. Surely nothing could be more humane than this.

But while in principle the common law was thus benign and enlightened, in practice, as we have seen, it was harsh and unreasonable. And that the prac tice of the courts, as it stood in those days, was a most effectual deterrent to the plea of insanity, is evident from an occasional writer of the times. Thus an old commentator on the state trials, in the time of Charles II, says that the defense of insanity had sometimes been tried in capital cases, but with so lit tle success that in his time it was scarcely heard of.25 This is not much to be wondered at when the same writer tells us that in one case the prisoner's wife was threatened with being. thrust out of court for merely whispering to her husband what jurors he should challenge; that in another case the prisoner's wife was only by special permission allowed to take a few notes for him; and that in still another case, that of an insane apothecary on trial for high treason, the prisoner's son only was allowed to be with him and give him a little help, although the accu el man was dragged into court after ten weeks of solitary confinement, in such a mental state that even the court saw plainly that he was "moped mad." These men were all tried without being allowed legal counsel or sworn witnesses, and the apothecary was hanged.

According to this same writer, it was no trifling thing even to advise a man before his trial, and a solicitor had once been indicted for high misdemeanor for merely giving advice before trial to a person accused of high treason.

The extraordinary spectacle was thus sometimes presented of a lunatic conducting his own defense. We see a man in jeopardy of his life, trying to prove himself insane by the acumen with which he examined and cross-examined the witnesses. The prisoner, in order to prove that he was insane, was obliged to reveal the fact that he had sufficient reason to conduct his own case. If he did this-and it was his only chance-with some show of coherence and insight, this very fact was seized upon by the crown lawyers to prove that he was sane. In other words, his predicament was such that the more he tried to prove by witnesses that he was insane, the more he proved by his own display of logic that he was not insane. Never was a man placed between the two

horns of such a dilemma.26

Let us take, for instance, the case of Edward Arnold, one of the causes celebres, in medical jurispru

dence.27 Arnold was tried in 1724 for shooting at Lord Onslow with intent to kill. The prisoner was a delusional lunatic, and believed himself persecuted by Onslow, who, he thought, sent evil agents to an noy him, and even got into his belly; he imagined also that he was bewitched by the noble lord, and that the latter in some mysterious way was responsible for most of the evils of the times. There were marked aural hallucinations, insomnia, inability to work, and the whole paranoiac outfit. When this man was brought to trial an effort was made to have the judge permit a solicitor to be at the prisoner's side "to call his witnesses only;" but it was most vehemently fought by four lawyers for the crown. They contended that the judge was "of counsel for the prisoner," and that the attempt to prove him a lunatic " was a design to forestall justice." This was before a word of testimony had been heard. "And the man to my sight," said the leading lawyer for the crown, seems as sensible as myself or any person in court." Justice Tracy decided against allowing the prisoner any counsel, but said he himself would give him all the assistance in his power. He told the prisoner, as all the witnesses come, if you have any question to ask, put it to me, and I will ask your question for you." Also at the close of each witness's examination the crown lawyer would say, "Arnold, would you ask this witness any question?" To which the prisoner once replied: "I don't know. Ask him yourself if you have a mind." His usual answer was, "I don't know what to say. And truly he did not. He was allowed a solicitor for part of the time; but there was no proper cross-examination of the crown witnesses, and the examination in chief of the witnesses for the defense was conducted by the judge and the lawyers for the crown. It was clearly proved, nevertheless, that the man was a delusional lunatic; but the evidence made no impression on the minds of either court or jury. No medical experts were called; and, no counsel being allowed for the prisoner, his evidence was not properly marshalled, and no address was made for him to the jury. All his evidence, in short, went for nothing. When the poor wretch attempted to ask questions of the witnesses, he was badgered by the crown lawyers; and the judge, instead of acting as counsel for him, as he had promised. told the jury, in a charge which was destined to be forever famous, that a man could not be acquitted on the defense of insanity unless he was "totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast." The prisoner was promptly convicted and sentenced to be hanged; but to the credit of the crown his sentence, at the request of Lord Onslow, was commuted for imprisonment, and he spent the remaining thirty years of his life in jail.

27 16 Howell, State Trials, 465,

Perhaps the most dramatic and spectacular trial of a lunatic that ever took place was that of the Earl Ferrers.28 This English nobleman was arraigned in 1750 for murdering his steward, Mr. Johnson. The tribunal that tried him was not an ordinary criminal court, but no less august a body than the House of Lords, because, according to English law, every man is entitled to a trial before a jury of his peers; therefore an English earl makes his defense, when he commits a crime, before the upper House of Parliament. The trial was conducted with great pomp and ceremony. The court was presided over by the lord high steward, one of the highest offices under the English Constitution, but usually in abeyance, and only filled for special occasions, such as the coronation of a king or the trial of a peer for murder. The details are too voluminous for quotation, or even for judicious condensation, but every modern alienist, who feels an interest in the history of his specialty, should read the highly entertaining report of the proceedings as given in the 19th volume of the State trials.

Lord Ferrers was allowed no counsel, but was obliged to conduct the whole defense himself, not only against the attorney-general, who was one of the ablest lawyers of his time, and afterwards lord chancellor, but also with such eminent jurists as Lord Mansfield and Lord Hardwicke present and ready to trip him up. He was evidently carefully coached for the occasion, and conducted the examination and cross-examination of witnesses with remarkable skill. It is very evident that the impression he made upon his jurors the whole House of Lords-was highly unfavorable to his case, because the very skill with which he conducted his defense was taken as evidence that he was of sound mind; and the counsel for the crown were nothing loath to take advantage of this point, and drive it home. The proceedings of the trial read almost like a burlesque. Lord Ferrers' case was evidently one of alcoholic insanity, engrafted upon a hereditary stock. It was shown that he often began his day by drinking brandy in his tea for breakfast, and he drank steadily and in excess. He had the delusions of persecution which are common in alcoholic insanity, and he was probably drunk when he killed his victim. After the tragedy he sustained a siege for many hours in his own house, and when finally taken was "armed with a blunder-buss, two or three pistols and a dagger." Sometime before the murder a commission in lunacy had been thought of for him, but unfortunately it had never been taken out. His uncle and immediate predecessor in the earldom had been insane, as had also a paternal aunt. All these facts were brought out in the evidence. The irony of the trial consisted in the fact of a man in jeopardy of his life trying to prove his own insanity by examining and cross-examining witnesses.

28 19 Howell, State Trials, 886.

He

frankly deplored the need of doing this, and told the Lords naively that this plan of defense was forced upon him by his family; intimating that he took not much stock in it himself. The effect can readily be imagined. The questions and answers are often amusing. "In what light did you look upon me?" he asked one of his witnesses. "Rather turned in your head," was the answer. "Have you seen any instances of anything like insanity in me?" was another question. To one question: "Do you look upon me as affected with any and what distemper?" the witness replied very frankly: "Indeed, I have looked upon your lordship as a lunatic for many years." The accused man even made an attempt to propound a hypothetical question (the first instance. probably, in any court) but it was not allowed. When he came to sum up, he frankly protested that he was not able to do it, but he obtained leave to read a statement which he had prepared, or which had been prepared for him, in writing, in which, with pathetic helplessness, he said: "I have been driven to the miserable necessity of proving my own want of understanding; and am told, the law will not allow me the assistance of counsel in this case, in which, of all others, I should think it most wanted." Earl Ferrers, like other insane persons, was opposed to making a defense of insanity, and said it was forced on him by his family. His defense and speech were remarkable; the evidence was clear; and yet this lunatic conducted his own defense by trying to prove what he said he was mortified to have to acknowledge. The natural result followed. He was promptly convicted by his peers, and hanged. It is probable that his confinement in jail before his trial had partly, at least, restored his mental balance by depriving him of his accustomed libations.

Such a travesty of justice is sad to contemplate. At the present time a strong defense could be made in such a case, and a verdict in the second degree probably obtained without difficulty. The presentday critics of our legal procedures should reflect upon the advances that have been made in medical jurisprudence.

The case of Hadfield is also a celebrated one and serves to illustrate some of the peculiarities in the development of trial by jury in English law as it affected the insane. Hadfield had shot at King George III in Drury Lane Theatre, but had missed his aim, and the king was unharmed. This was an act of treason, punishable with death, and it was for treason that Hadfield was tried at the bar of the Court of King's Bench in 1800. Now the old common law had been modified, as we have seen, by the act 7 Will. 111 C. 3, which allowed counsel to a prisoner on trial for treason. Consequently Hadfield had counsel, as he would not have had if he had been, like Arnold and Earl Ferrers, on trial for murder or attempted murder. It is to this fact alone that we owe the celebrated speech of Erskine in Hadfield's de