completely ideal liberty, nor in a perfect liberty like the free-will of the spiritualists. This liberty is in our eyes an end, not a cause, properly speaking. In one word, moral legitimacy can hardly be deduced, in our opinion, from an ideal liberty, conceived as a principle of right, and its social legitimacy may be inferred from the common acceptation of this ideal by contract."* M. Siciliani admits a relative liberty, of a vague despairing nature, always for the simple object of giving a solid foundation to an unsteady responsibility. M. Delbeuf, a defender of free will in this same sense, reduces it to an uncertain, wavering and dilatory faculty, a sort of suspensive veto, which vacilates far too much to be the basis of moral responsibility. In philosophic theories, then, responsibility always rests upon free-will. The Abbé de Baets says formally:-"Imputability has no solid basis except in free-will; he alone can be held responsible for his actions who can determine them by his own choice.”+ Legislators have followed close upon the footsteps of philosophers and theologians. They have been inspired with this view in the compiling or codification of their laws. A magistrate, M. Fabreguettes, justly remarks that, "all criminal legislation, ancient and modern, is based upon the idea that man is born with a double faculty, included within conscience, the one to know the good and the bad, the other always to choose between the good and the bad." Yes, all codes are formed upon this idea that free-will and responsibility are indissolubly united. In order to determine individual responsibility it is not enough to attribute the mere act. The individual to whom the act is attributed must also be possessed of free-will. Here lies the basis of responsibility as it is now generally (officially) conceived in our codes and our standard of morality. Logically the right to punish follows this moral responsibility. The individual was free to wish or not to wish to perform an act, he ought then to be punished for having executed this act. He ought to be punished, that it may be a lesson to him and to others, and, above all, that he may expiate his crime. In fact, this process actually followed by man has conceived and developed the idea Science social contemporaine, p. 282. De Baets. L'école d'anthropologie criminelle, pp. 39, 41. of God, of a super-natural world. Thus expiation becomes necessary; it does not matter whether the penalty be exemplary or educative, it matters that it be an expiation. Physical or moral pain inflicted upon the author of the injury is no more a simple reply from an individual or a collection of individuals. In the course of time there have been transformations, and this pain has been regulated, codified. It is an expiation, a thing agreeable to the supernatural powers, but it is tinged also by educative influence for the sufferer of the penalty and for others. But this is not the place to examine the evolution of the laws of punishment or of the morphology of penalties. It is sufficient to indicate that the law and modes of punishment are derived from responsibility and the idea of expiation. To be responsible it was not only necessary to be the author of the act, but also that the author should be compos mentis. All animated beings have been so considered, for we have seen animals gravely and judicially condemned and executed. But the spirit of examination is constantly developing, and there are restrictions to this responsibility. A minority, the vanguard, continually arrives at this result, to show by analysis the irresponsibility of many delinquents. The jurists, faithful guardians of tradition, resisted. But under the incessant efforts of the progressive human mind, the responsibility of animals was swept to the winds and ultimately disappeared; then that of human corpses, although the laws concerning them still remained unrepealed. They fell into disuse, buried in the thick forest of laws and regulations. But in the field of responsibility the tendency to restrict actively continued. And some sought to exclude the mad from the rank of the responsible, claiming that in madness the individual was not compos mentis. The jurists always resisted. In France, in the eighteenth century, the judge had no investigation to make upon this point.* He did not inquire whether the delinquent was sane or not. In 1616, for example, the president of the parliament of Bordeaux, De Lancie, sent female maniacs to the stake, giving for his reason that "it is a monstrous thing to see more than forty women in the church who bark like dogs, making Fabreguettes. Op cit., pp. 9, 10. X together so displeasing a concert and music in the house of God, that others cannot remain in prayer."* It is sufficient to take the trouble to peruse hundreds of law-suits concerning magic, sorcery, or other analogous equally intangible crimes to be amazed at the ease with which poor beings were condemned to the stake,† guilty only of possessing an unbalanced nervous system, and of living in an age of profound ignorance. Nevertheless, the idea of the irresponsibility of individuals slightly mad already germinated, for a magistrate of this period, Serpillon, opposed the custom and the law. This was altogether exceptional. It seems as though previous to 1789 madmen did not exist, at least from a legal point of view. They rather argued like the magistrate condemning an avowed madman to death for murder, because, as he said, it was more necessary to hang a fool than a sane man.§ There certainly were commentaries on the ordinance of 1670 which said: "He who is raging or mad has no will, and does not know what he does; therefore he ought not to be punished, his madness is punishment enough. If he who commits a crime has lucid intervals, we presume that he was deranged at the time of the act."|| These commentaries had no practical value. In fact, madness was classed among the acts accounted justificative, that is to say, that its proof was only admitted after the trial. There are even decrees giving the order to judges not to take account of the state of madness, even of avowed insanity, but to judge rigorously. Thus the magistrates themselves were the judges of the state of mind of the accused! They, totally ignorant on the matter, were nevertheless convinced of their own profound understanding! As Corre and Aubry tell us: The furious, the mentally deranged, is mad, he who in a very characteristic and general manner is out of tune with his surroundings. In short the number of those who are recognised as mad among criminals is infinitesimal, and even they do not escape condemnation. Indeed at the end of the eighteenth century, in France and in S. Icard. La femme pendant la période menstruelle. In the Dictionnaire Infernal, by Colin de Plancy, the list of these poor creatures is interminable. A. Berard. Archives d'Anthropologie Criminelle, 1892, p. 166. § M. Du Bled. Revue des Denx Mondes, 15th January, 1887, p. 625. Corre. Les criminels, p. 334. ¶ Documents de criminologie rétrospective, pp. 73, 75. all Europe, the field of responsibility extended to all human beings, for all, demented or not, are considered as in possession of their own free-will. Insanity is however a cause of the attenuation of penalties incurred for certain crimes. This is a kind of grace. Even the laws of the French Revolution are mute as regards insanity, so vivacious and vigorous in the minds of legislators was the traditional idea that nothing must be done to weaken the principle of moral responsibility. It required the sensation produced by Pinel's works on mental maladies to move the traditionalism of the jurists ever so little, to tend to counteract their dread of new ideas. The codes seem to be inspired with this new view of human responsibility. The French penal code in article 64, says: 'There is no crime or fault when the accused was in a state of insanity at the time of the act, or when he has been constrained by a force which he was not able to resist." The German penal code is more explicit, for to constitute crime it was necessary that the agent should have had liberty of will, at the moment of the act. In Spain, article 31 of the penal code considers as irresponsible the imbecile, the insane, and the unbalanced in mind, whether permanently so or not. But what is the state of insanity fixed by the code? Jurists and doctors devoted themselves to the search for a criterion. The former sought to hold it within very narrow limits, so as to cover only those individuals who were absolutely insane in all their actions and all their reasoning. The latter, on the contrary, had the tendency to extend this state over a number of people whom the general public and the judges considered in possession of their reason. The contention was sharp and uninterrupted. It continues still. On the one side, the upholders of tradition, of the immutable principle of integral and inviolable moral responsibility, these are the jurists and lawyers. On the other, the doctors, to whom were added later the anthropologians, then the philosophers, and lastly the sociologists maintain on the ground of observation and experience the irresponsibility of a great number, if not of all human beings. Under the incessant influence of the scientists the jurists have ceded little by little and cede every day a little more of the field which they have occupied victoriously for so many centuries. Thanks to Esquirol, Leuret, Marc, Calmeil, Parchappe, Moreau (of Tours), Tardieu, Despine, Le Grand du Saulle, etc., the French penal code has since 1810 considerably extended the field of irresponsibility. The idea of insanity has changed with the extention of human knowledge. "If we go back to the great criminal cases at the commencement of this century (1810 to 1840) we are convinced that magistrates and others then penetrated by the idea of absolute moral responsibility, energetically resisted attempts directed against it, and carefully sought to establish in all circumstances the moral horror of crime and the perversity of the criminal.”* "In all countries the same observation may be made. Everywhere now individuals are held irresponsible, who some twenty, fifty, or more years ago, would have been considered responsible. To arrive at this result how many disputes have there not been! How many idiots and insane have been condemned and even executed! The magistrates of the beginning of the century -as those too of the present day-consider themselves as capable of pronouncing upon madness, as the doctors themselves. In fact, in what does it consist, more than simply to guage the incoherence or derangement of the intellectual faculties, and every man of judgment is quite capable of doing that," says President Fabreguettes.† Even now the argument used every instant by our magistrates to condemn the deranged is that they know right from wrong; they know how to dissimulate, to frame a plan, and often to defend themselves with much address. To this Brierre de Boismont has replied peremptorily: To make use of such reasoning indicates total ignorance of these afflicted beings. . . . The mentally deranged is a being more generally resembling a reasonable man who thinks, acts, and is influenced like him, but who cannot drive away his delirious conception, his hallucination, even when he wishes to, because his will is paralysed." The magistrates, jurists, lawyers seemed to put their amour propre in conserving as many responsible beings as possible, so that they may always be able to condemn. The custom of combining for educational and professional instruction strengthens these efforts at valiant resistance against the opposing efforts of doctors and scientists. And one can understand the illustrious jurisconsult, Troplong, maintaining with an immense expenditure of talent, the error of the indivisibility of human reason, and Fabreguettes. Op. cit. p. 13. † Loc. cit. p. 16. ‡ Annales medico-psychologiques, 1867, t. x. p. 522 |