THE OBJECT OF THE ENGLISH CRIMINAL LAW.
ITO TITS EDITOR OF THE "SPECTATOR.")
SIR,—The two recent trials of Watson and Edmunds have shown the uncertainty and contradiction of opinions on the subject of bow far insanity should exempt one who breaks the criminal law from its penalties. The following is an attempt to ascertain the principle :— Whom should the law punish ? It is obvious that it should punish all whom it threatens, who knowingly break it, and are convicted thereof. To threaten punishment and not punish would be idle. To say that stealing should be punished with three months' imprisonment, arson with eight years' penal servi- tude, and murder with death, but on conviction not to pass or enforce those sentences, would be nugatory. The question, then, first is, whom should the law threaten? It seems an obvious answer to say, all on whose minds it may operate, all whom it may deter by its threat. It would be useless to threaten those who could not understand the threat. It would be useless to threaten punishment to an idiot for disobeying the law, doing wrong, or injur- ing another, if the intellect of that idiot was such that it did not understand the meaning of disobedience of the law, doing wrong, and injuring another. So if a man laboured under a delusion that some one was attempting his life, and believed that facts existed such that, if they really existed, they would justify his taking that other's life, it would be useless to threaten him,—for he would say, I have obeyed your law, and he would have meant to obey it. He would' have made a mistake, but that would be no reason for punishing him as for wilful breach of a law. It is so in the case of a sane person. If a man shoots another in the apparent act of commit- ting burglary, the shooter is not punishable, though it turns out he was mistaken in supposing burglary was being committed.
The law, then, should threaten, and consequently punish, those on whose minds it may operate, all whom it may deter. This is the law of England at present, as laid down by the Judges in their answers to questions put to them by the House of Lords in McNagliten's case.
Should there be any exception to this rule ? It is for those who say there should be to prove it. The burthea of proof is on them. This is important ; it is very often impossi- ble to prove a matter, though difficult to disprove it. Let us. examine the supposed exemption of an offender of unsound mind. It is said mad people ought not to be punished. If not, they ought not to be threatened. But why ought they not to be threatened if the threat may operate on their minds, if it may deter them? It is difficult to deal with the rambling, illogical, disjointed reasoning which is brought forward in support of this exception. It is said that there are certain manias which irresis- tibly impel to crime, and that though the threat of the law is understood, there is no wilful disobedience of it. Now, what are- these manias ? The two most frequently heard of in connection with crime are the homicidal mania and the stealing or klepto- mania. A man troubled with these has a strong desire to kill and to steal. These manias, as they are called, do not consist in disease,. unsoundness or a non-sane state of the mind, but of the passions or appetites. The homicidal maniac has a morbid craving for taking life. The not doing so is painful to him, the doing so pleasurable.. We may wonder that it should be so, but so it is. It is not a natural appetite, or source of pain or pleasure, but it is. so in this man. So of the kleptomaniac. He likes to take from others the property that belongs to them, and have it in his own possession. Why, one cannot tell, but so. it is. There are other cases of mania, supposing that to be the right word. There was a man who, about ten or twelve years, ago, was tried and sentenced at Monmouth under the following circumstances :—He was a collier in the employ of the Ebbw Vale Company. Their manager gave him the very beat character.. Hewas their best workman, sober, honest, and a deacon at his chapel. But he had this mania. He used to lie in wait on a mountain where a footpath crossed from one valley to another, andi then outrage women with circumstances of atrocious cruelty. There were nineteen indictments against him,. and many other cases where the sufferers would not come forward. He was convicted on four, and sentenced to penal servitude for life. Why was not this a ease of mania? We read in the papers. a few days ago of a boy in London, of about fifteen years of age,. whose delight was to fracture the skulls of small children. He had done it on several occasions. That was his mania. Now the mad-doctors call these cases cases of moral insanity. But would. it not be more correct to call them cases of insane morality, i.e., are they not cases where the desire to do mischief is not counter- acted by a morality sound enough to prevent their commission of the offences they lead to? Why should the persons who commit offences under the influence of their vicious desires or appetites— or manias, if that is the right word—not be punished, i.e., not be threatened with punishment ? It is said by the mad-doctors and. their followers that they, the persons breaking the law under suck influences, do not break it wilfully,—that they can't help it. See,' it is said, 'what is the use of your threat of punishment on this man 2—he has disregarded it under an irresistible im- pulse.' He has disregarded it, no doubt, and the impulse or temptation was too great for the countervailing considera- tions. But the same argument might be used in the case of all offenders, however sane ; the temptation has been too great for them. But the justification of punishment, the reason for the threat of punishment, is not to be found in its effect on, those whom it does not deter, but on those whom it does. Watson was not deterred from killing his wife in a most barbarous way by the law's threat that he would be hanged if he did ; but are there not many who are ? Is there no husband who would like to knock his wife's brains out, but is deterred by knowing what the law says shall happen if he is convicted of doing so ? Another way the argument is put is this : 'Poor fellow I his case is a hard one ; he did not have an equal chance with his fellow-creatures. He knew he was doing wrong, but then his intelligence was small, his power of self-control was small, his propensities maniacally vicious, so he is not responsible. 1Vell1 if the question were whether such a person is as hateful as a person of strong mind and no morbid appetite who deliberately did wrong for his own profit or gain, the answer would readily be, —no. But that is not the question. The question is, should the law not direct its threat against one who stands so much in need of it, who, unless fortified by it, is so likely to do wrong ? What would be thought of the law if it should say in so many words,—'You have a strong propensity to kill, therefore if you do you shall not be punished ; you have a strong propensity to steal, therefore if you do you shall not be punished ; and further, if you, the homicidal maniac, steal, you shall not be punished, be- cause your mind must be feeble ; and so of you, the klepto- maniac, you may commit murder with impunity,—in short, both of you, having evil propensities, may commit any offence without punishment ?' What would be said of a father who should say to his sons, ' You, John, are a good boy, but if you rob an orchard in my absence, I will flog you ; you, Thomas, are a badly disposed boy, who, when my back is turned, will certainly steal my neighbours' apples if you can ; therefore I will not punish you '? And where is this argument to stop ? I have a homicidal mania, therefore do not punish me for homicide or other offences. I have a kleptomania, thcrefore do not punish me. I, says the Monmouth offender, have a peculiar physical or mental development, therefore do not punish me. I, says a fourth, am really not a bad man, but have lived all my life among thieves, and am as much inclined to steal as a kleptomaniac. I, says a fifth, am really a good and well-conducted person, but I was in great want, there was no witness near, the owner was rich, so the temptation to steal the watch was irresistible. Irresistible All we know is that the deterring considerations were not enough. But had a policeman been present when Watson slew his wife, would his temptation have been irresistible? Would Edmunds have given the poisoned sweets to be taken to the confectioner if a police- man had been within hearing? The argument comes to this : where- ever a person is likely from feeble intelligence or morbid appetite to commit a crime, wherever the threat of the law is most needed, there the person is to be pitied, and the threat withheld. Why not in every case where the offender is to be pitied ?
But it may be said, the man ought to be punished, but not so severely as the man of strong mind. Why, the ques- tion is what punishment ought to be threatened. Give what is threatened, all or none. The argument, if good for anything, is good for none, and is good for nothing. Take the two cases I have referred to. Watson's was a most savage, furious murder ; not one, but many blows must have been given. Do not furious passions require repression ? The other was a most cruel, deliberate murder, undertaken to screen the offender from suspicion of having tried to murder a woman for whose husband she had an adulterous affection. If her insanity tended to this, would it not have been a good thing that she should have had constantly ringing in her ears, "The gallows "? Our criminal law is in a curious state. Watson is found guilty, and, as everybody agrees, properly, according to the law as it exists, but one of the judges is said to have expressed an opinion that he ought not to be executed. This seems odd. Let us suggest that the Judges at large vote on such a question. I should think if they had, it would have gone hard with that savage murderer. So as to Edmunds, the jury say, and everybody is satisfied, that she is not within the rule the law Jays down excepting offenders from punishment on the ground of insanity. But it is said that the judge who tried her doubts if she is not insane, more or less, and Sir W. Gull says she is. But what if she is ? Her insanity is not the question, but her know- ledge that she was doing wrong. Let us not blame the Home Secretary, one of the ablest we have had for many years, and of whose duties none is so difficult as that of advising or withholding mercy. But the cases are curious. Watson is "the Rev. Mr. Watson," "Mr. Watson the clergyman," "the venerable-looking prisoner," and so a factitious pity is got up for him in some. As you say, is it clear the same sympathy would have been felt if Mick Connor had knocked his wife's brains out with his pick-axe ? And so of Miss Edmunds. Is it certain that no pity was felt for the lady whose relations were so respectable, though of doubtful intellect? These are, as you say, cases that make one wonder if an unconscious feeling for respectable people has not influenced the exertions to save these two most grievous offenders.
While on this subject, attention may be called to a strange state of the law. Some years ago a commission recommended that un- premeditated murder should not be punished capitally. The report was of such a character (to say no worse of it) that legislation did not follow on it, but the Home Office acts on that recommen- dation, so that pro tango it has repealed the law as to murder. The present state of things is most unsatisfactory. If the Home Secretary is not strong enough to deal with these questions (and none is more capable than the present), let some tribunal be constituted which can. At present it is chaos —I am, Sir, Scc., Ex.
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