fense a speech which more than any other ever pronounced in a court of justice tended to change the legal tests for insanity, for it introduced and established the doctrine that insane delusion is a good defense in law.

He

In 1812 Bellingham, a delusional lunatic, shot and killed Mr. Spencer Perceval, First Lord of the Treasury, in the lobby of the House of Commons.29 believed that the government owed him a large sum of money, and failing to obtain redress he had assassinated this eminent statesman. Bellingham's case is the most notorious in the medico-legal annals of England. He shot Mr. Perceval on the 11th of May; was put on trial the same week, found guilty after a very short trial, during which a fruitless attempt was made to secure delay in order to obtain witnesses to his insanity, and was hanged on the 18th of the same month; so that the boast was made that his body was on the dissecting table in eight days after he had committed his crime. At the end of the case for the crown the prisoner was called on for his defense; and he then, pointing to his lawyer, who was present, said: "Is not that gentleman going to speak for me?" On being told that the law did not allow this, he defended himself.30 He addressed the court, and spoke so coherently that the crown lawyers exultingly made much of it, as evidence of a sane mind. A lawyer who was engaged to help him, although not allowed to appear for him as counsel at the trial in the ordinary sense, begged vainly for postponement. "I never saw the prisoner before, and it has not been in our power to bring forth all the evidence to prove whether he be sane or insane." But the plea was vain.

All this was in accord with the practice that prevailed less than one hundred years ago in English courts. Sir H. B. Poland says31 that in cases of felony (which included murder, but not treason) a prisoner's counsel was only allowed to cross-examine witnesses, to argue points of law, and to examine witnesses for the defense of the prisoner. But evidently he could not address the jury. And Chitty tells us that upon a charge of felony (which included murder) counsel were allowed to the prisoner only if some point of law should arise fit to be debated.32

Reform in legal procedure moves slowly in England, but popular indignation was gradually roused against this injustice; and it found voice in a most unexpected quarter. In 1824 George Lamb presented a petition to Parliament, signed by members of the juries serving in criminal cases at the Old Bailey, praying that the accused in cases of felony (murder,

291 Collinson, Lunacy, 636.

etc.) might have the benefit of counsel, as in cases of misdemeanor. It was plainly said by a writer of the time that the juries had become weary of the continual butchery, and resolved to acquit. It was believed that innocent persons were often found guilty because of the absence of counsel; and one telling argument was based on the helplessness of the insane, when forced to defend themselves before a jury and against trained lawyers for the crown.

"Suppose a crime to have been committed under the influence of insanity," exclaimed Sydney Smith; "is the insane man to plead his own insanity—to offer arguments to show that he must have been madand by the glimmerings of his returning reason to prove that, at a former period, that same reason was utterly extinct?" This was exactly what had been going on for centuries, but Sydney Smith, although he wrote so eloquently, did not appear to know it.

Lord Chief Justice Denman, of the Court of King's Bench, said that he had once tried two prisoners who were deaf and dumb; and he exclaimed against the harshness of such a trial without counsel for the prisoner. It would, indeed, be hard to imagine anything more grossly unjust than to try a person who could neither hear the accusation nor reply to his accuser, and who was not allowed counsel to hear and reply for him. When Lord Lovat was tried for treason in 1747 he protested that he could not conduct his own defense, because he could neither see nor hear. In consequence a bill was brought into Parliament to allow counsel to prisoners impeached by that House.

Sydney Smith's essay,33 in 1826, from which we have quoted, was a masterly criticism of the old law, and it probably had something to do to mould public opinion and lead to reform; but that reform did not come until 1836, when Parliament passed the law known as the Prisoner's Counsel's Act (6 and 7 Will. IV C. 114), which prescribed as follows:

"That all persons tried for felonies shall be admitted, after the close of the case for the prosecution, to make full answer and defense thereto, by counsel learned in the law, or by attorneys in courts where attorneys practice as counsel.”

Thus not until the middle of the nineteenth century did England correct an injustice which had stood for centuries, and not then without protest. Poland says that, after reading Sydney Smith's ar

33 Edinburgh Review, Dec., 1826. Sydney Smith's essay was written as a review of Stockton On the Practice of not Allowing Counsel to Prisoners Accused of Felony, 8vo. London, 1826. republished in Smith's Collected Essays, London, Longmans, Green, and Co., p. 539. It was unsigned

The review is

31 Op. cit.,

p. 50.

ticle in the Edinburgh Review, it is difficult to understand how the law could have remained unchanged until 1836. But it is a still more astonishing fact that, according to the same writer, twelve out of the fifteen highest judges in England strongly condemned the bill, and one of them, Mr. Justice Park, said that if it was allowed to pass he would resign from the bench. Nevertheless the bill did pass, and the learned judge did not resign.

The fact is well known that the insane often object to the defense of insanity in their behalf. This defense, as a rule, is not relished by paranoiacs. These lunatics do not like to be called insane. They resent the imputation most vigorously, for it is a well-known characteristic of delusional patients to defend their delusions, and this they will do at the risk of their lives, even when on trial for murder. Under the old common law such patients, when cbliged to defend themselves without counsel, were more likely to ruin their cases than to help them. We have seen how Lord Ferrers apologized for making such a defense, and said he was forced to do so by his family; he evidently resented the idea. Another early case was that of Frith,34 in 1790, who protested loudly against the defense of insanity. He had thrown a stone at the King in his royal coach, and when put on trial he harangued the court in a crazy manner. A like scene was enacted at the trial of Pearce,35 in 1840, for felonious assault. Insanity was admitted by the crown, but the prisoner would have none of it, and insisted on addressing the court and examining the witnesses himself. These witnesses, called and examined by him, so far from proving him sane, proved quite the contrary; and he was found not guilty, on the ground of insanity, in spite of his protests. His counsel (for this was after the passage of the Prisoner's Counsel's Act, in 1836) said that "he relied on the prisoner's denial of his insanity, under the circumstances which had been proved against him, as one proof of the fact of his being insane." But usually, under the old common law, the very opposite conclusion was drawn by the prosecution. Thus, as we have seen, Bellingham addressed the court, and spoke so well and conclusively in an insane speech, that the court accepted it as an evidence of his sanity. Guiteau derided the idea of his own insanity; and if he had been compelled, or allowed, to conduct his own defense, his trial would probably have been going on yet.36 Jurisprudence, 5th ed., Vol. 1, pp. 840-841, from which the above paragraph has been taken in part.

There are curious and deep psychological reasons for the old English common law denying counsel, and even witnesses, to a prisoner on trial for grave crime. The subject is too involved for more than a

34 22 Howell's State Trials, 307. 35 Reg. v. Pearce, 9 Car. & P. 667.

36 See the writer's work in Wharton & Stille's Med.

hasty discussion here. One idea was that it was the business of the court to defend the prisoner; that is, to see that no injustice was done him. Hence the old saying that the judge is of counsel for the accused. This was a part of the orthodox belief of almost every old common-law writer; and was particularly derided by Sydney Smith. But another and more occult reason appears to have been that it was deemed a wicked opposition to the majesty of the King for any lawyer to get up in court and deliberately oppost him-for in the fiction of the law the King is always present in court in the person of one or more of his judges. The defense of a man who might be guilty was disloyalty to the King, or at least a disrespect shown to him, and it was held to be more likely than not a mere effort to forestall justice. As one writer says, it was an "indecency" to oppose the King's counsel. This was a prejudice derived from the civil law of feudal Europe, and was based probably on the fact that the majority of accused persons who come to trial are really guilty, and it is the business of the court to demonstrate that fact. Any opposition, as by counsel for the prisoner, is an unwarranted interference. The old jurists were keenly alive, in other words, to the possible abuses of the defense; to all the arts and wiles and trumped-up pleas that make our present criminal trials too often such public scandals.

But modern jurists do not see it that way, and it is an axiom now that an accused man is entitled to his defense. The contrary savors too much of tyranny. One of the most infamous laws of Robespierre, during the Reign of Terror, was the law of Twenty-second Prairial, by which, among other iniquities, counsel was denied to prisoners accused of treason. This feature aligns this law with the old English common law, which bore so hard on the insane. Morley says that "of all laws ever passed in the world it is the most nakedly iniquitous."37

In times of stress the office of advocate for an unpopular prisoner may be one not only of embarrassment but of danger. Malesherbes, that grand and venerable man who, at the peril of his life, undertook the defense of Louis XVI before the Convention, is perhaps the most conspicuous example in history. At the age of 74 years he attempted to save his King, only to follow him in a few short months to the guillotine.38

At the trial of Colgosz, the assassin of President McKinley, the position of counsel for the prisoner was thought to be so obnoxious that special measures were taken to have it filled; and the defense was but half-hearted and perfunctory. The man was really tried by public opinion long before his formal trial 37 Critical Miscellanies, Essay on Robespierre, p.

106.

38 Lamartine's History of the Girondists, Vol. II, p. 314 et seq. Vol. III, pp. 411-412.

in court. It was such a case as under the old common law would not have been allowed counsel at all; and the question of the man's insanity was as badly presented as it would have been in the Court of King's Bench in the seventeenth century. Human nature does not change much, even if the laws do.

It is well, perhaps, for the modern reader in his complacency to reflect that in the present day we may have gone to the other extreme. Some one should write a treatise on the abuses of the legal art of defense. Certainly we see to-day the prisoner and his counsel allowed every latitude. Every loop-hole of escape is opened to him; irrelevant testimony, technicalities, insanity dodges, appeals to popular prejudice, and by-plays to the jury, now consume days in the trial of a case in which the issue is so simple that under the old common law, when courts sat all night, and juries were not allowed meat. drink or fire, the prisoner could have been convicted between sunrise and sunrise.

: 0:

Liability of Innkeeper for Offensive Acts of Employees.

It ap

The decision of the First Appellate Division of the New York Supreme Court in De Wolf v. Ford has excited much discussion in the newspapers. pears that the decision turned largely on a question of pleading. The complaint was dismissed on the defendant's motion without taking any evidence, and, as Mr. Justice MCLAUGHLIN remarks, "whether or not the rulings were correct must be determined in the same way as if the defendant had demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action." It was alleged that the defendant managed and controlled a hotel for the entertainment of guests for hire; that on the fifth day of June, 1905, this plaintiff, in company with her daughter and her brother. one George Catlin, called at said hotel and applied for rooms, giving their true and proper names and stating their relationship of each to the other; that the plaintiff and her brother and daughter were thereupon received as guests of said hotel and this plaintiff assigned to a room therein accordingly; that thereafter, and about 1 o'clock in the morning of the next day, while plaintiff was occupying the room so assigned to her, one of the servants, employees, and agents of the defendants, while in his regular employment at said hotel, forced his way into the said room of this plaintiff, without her consent and against her protest, while she was undressed and without clothing, except her night-dress, and addressed to her, and in the presence of her said brother and another person, vile and insulting language, and accused her of being a disreputable person, and addressed to her words imputing that she

ant,

Mr. Justice MCLAUGHLIN thinks that this complaint states a cause of action, and certainly, if the allegation-one of the servants, etc., of the defend"while in his regular employment at said hotel, forced his way," etc.-is sufficient to raise the issue whether the employee was acting within the scope of his authority, the case presents a very different question from that passed on in the able opinion of Judge SANBORN, writing for the majority of the United States Circuit Court of Appeals, Eighth Circuit, in Clancy v. Barker, 137 Fed. R. 161, which opinion is referred to apparently with approval in the present opinion of the majority of the Appellate Division. In the Clancy case it appeared that a boy about six years of age, a guest of the defendants at their hotel, wandered out of the room assigned to him and into a room in which a bellboy or porter of the defendants was engaged in playing a harmonica for his own amusement, and the latter accidentally or willfully shot the former with a pistol. It was held that the bellboy was not acting within the course or within the apparent or actual scope of his employment at the time of the shooting, and the innkeepers were not liable for the injury so inflicted. This decision turned entirely upon the fact that the servant, who was temporarily off duty and engaged in amusing himself, was not acting within the scope of his authority. In the De Wolf case the facts alleged would seem to suggest that the servant might have been charged with the duty of excluding and expelling immoral and objectionable persons from the defendant's hotel, and therefore that the act was within the general scope of employment.

Judge SANBORN's opinion may be commended as an instructive discussion of the subject of the responsibility of innkeepers for acts of their servants.

He shows substantial reasons for distinction between

the liability of innkeepers and that of common car

ter who is employed to assist in the transportation, is constantly acting within the scope and course of his employment while he is upon the train or boat, because he is one of those selected by his master and placed in charge of the person of the pessenger to safely transport him to his destination. Any negligent or willful act of such a servant which in flicts injury upon the passenger is necessarily a breach of the master's contract of safe carriage, and for it the latter must respond. But the contract of the innkeeper with his guest and their relations to each other are not of this character. The innkeeper does not take, nor does the guest surrender, the control or dominion of the latter's person. The perform

ance of the contract of entertainment is not the chief occupation of the parties, but it is subordinate to the ordinary business or pleasure of the guest. The innkeeper assigns a room to his guest, but neither he

nor his servants direct him when or how he shall occupy it; but they leave him free to use or fail to use it, and all the other means of entertainment proffered, when and as he chooses, and to retain the uncontrolled dominion of his person and of his movements. The agreement is not that the guest shall surrender the control of his person and action to the servants of the innkeeper in order that he may be protected from injury and entertained. It is that the guest may retain the direction of his own action, that he may enjoy the entertainment offered, and that the innkeeper will exercise ordinary care to provide for his comfort and safety."

The learned judge also remarks:

Moreover, the authorities in the cases involving the liability of common carriers, of owners of palace cars, of steamboats and of theatres, upon which counsel for the plaintiff seems to rely, when carefully examined, are found to be cases in which the servants were acting within the course or scope of their employment, and they do not rest upon the proposition that the defendants in those cases were liable for the willful or negligent acts of their employees beyond that scope."

It would be unjust as well as unnecessary for gen eral protection to hold an innkeeper liable if a guest go into a part of the building whither he has not been invited, either expressly or impliedly, and be there insulted or injured by an employee who is off duty. This, however, is an entirely different proposition from saying that an innkeeper may not properly be chargeable for acts of insult or injury committed by a servant as incidental to the discharge of regular duties.

In Gillespie v. Brooklyn Heights R. R., 178 N. Y. 347, it was held (syllabus):

"A common carrier is liable to damages to a pas senger for an injury to his feelings caused by the insulting language of its employee, upon the ground of a breach of its contract which obligates it not

only to transport the passenger, but to accord to him respectful and courteous treatment and to protect him from insult from strangers and its own employees. Among the elements of damages in such a case and which may be considered in determining their amount are the humiliation and injury to his feelings suffered by him, not, however, including any injury to his character resulting therefrom, and he is entitled to recover compensatory damages only, not including punitive or exemplary damages."

In Davis v. Tacoma Ry. & Power Co., 77 Pac. 209, it was held by the Supreme Court of Washington that although a person operating a place of public resort may have the right to exclude persons whose conduct, dress or demeanor proclaim them to be members of a disreputable class, that fact does not exempt from liability for a mistake made in the effort to exercise that right, and that in an action for the wrongful exclusion of a person from such a resort, mental suffering is a proper element in the esti mation of damages. This latter case is quite substantially similar to that presented in De Wolf v. Ford. It is true that the defendant in the Washington case was a common carrier, being a street railway company that had acquired and was operating a park or place of resort in connection with its railway, and the wrongful action complained of occurred in said park. If, however, the act of the servant of an innkeeper performed within the scope of his authority may be legally classable with that of the servant of a common carrier, the Washington case, which has often been cited with approval, bears instructively upon the New York case under consideration.

It is desirable that the questions raised by the decision in De Wolf v. Ford be taken to the Court of Appeals, as trial courts and even intermediate appellate tribunals are loath to make serious innovations upon the common law. We gravely doubt

whether the court of last resort will hold that no contract for decent treatment and protection from insult or injury on the part of employees may be implied from the relation of innkeeper and guest. The decision in the Gillespie case (supra) reversed that of the Appellate Division and quite materially extended the protection of passengers against misconduct of employees. It is not improbable that the Court of Appeals will similarly harmonize the common law with existing popular sentiment on the subject of the liability of innkeepers. It is questionable whether the Court of Appeals would now sanction the invasion by an innkeeper, or his servant acting within the general scope of duty, of the privacy of a woman's bedroom. If such an extreme measure be necessary for the preservation of decency, good mor als and the reputation of a hotel, at least there should be charged upon the innkeeper liability in damages in case of mistake.-N. Y. Law Journal.