1847.] Case of Abner Baker. 363 thoritative declaration. Now this very test has been applied at the principal asylums throughout the country, especially at Utica, and the result has been, that not over ten per cent. of the whole number were entirely unable to distinguish right from wrong, and therefore exempt from legal responsibility. When, in 1843, McNaughten murdered Sir Robert Peel's secretary, under the delusion, not that Mr. Drummond was about to injure him, but that a crew of enemies were pursuing him everywhere, the House of Lords proposed to the law-judges of England certain questions upon this very subject. The decision of the judges was worthless. vitiated by the error of supposing that the whole conduct of a deranged man is necessarily controlled by his delusion, — that there is a perfect method in madness. The fact is quite otherwise. There are instances of many an insane person "in the ordinary transactions of life conducting himself and his affairs rationally, a sensible, clever man, amassing a considerable fortune by his profession, taking good care of his property, and never even suspected of derangement by several of his friends and acquaintances, some of them medical men."* It was But we find that this branch of the subject is leading us too far. Contrast with the fact, that the highest medical authority pronounces it impossible to prescribe any certain general criterion for derangement, the kind of testimony which procured the conviction of Dr. Abner Baker in Kentucky. After a moment's attention to so recent an experience (Baker having suffered the sentence of the law in October, 1845), it will be needless to urge any further the fallibility of our tribunals, in opposition to the infallibility directing the administration of justice in the ancient times, under an abiding inspiration. Only two physicians were summoned, one on each side. Dr. Reid, the government witness, testified that "a person who can lay all his plans for accomplishing any thing to be desired would not be laboring under insanity"; as plain a contradiction as words can make of facts well known to every visitor in an insane asylum. It was proved that the suspicions which had prompted Baker to the murder were entirely baseless, the creations of a mind whose eccentricity had been becoming more and more marked for six years; and yet, the very part of the jury which recommended. * Prichard on Insanity, p. 268. him to mercy, instead of firmly maintaining that insanity, which Dr. Allen, the head of their State Asylum, pronounced unquestionable, only say "that he was in a state of mental excitement and delusion, which may be considered insanity "; words which seem by their timidity to cower before the armed mob who watched the deliberations with the bloodshot eyes of revenge. Will it be believed that the victim of this brutal ignorance had for years thought himself haunted by persons who had conspired to kill him, that " he looked all the while as if just recovering from a severe sickness," that his brother, a physician, testified to the general disorder of his system, that he had long neglected his business to lose himself in gloomy reveries, that, when first tried, he was discharged by a magistrate on the ground of insanity, and that, when his family surrendered him to the requisitions of the governor, he had been residing at Cuba for the sake of his health? The absurdity of the plea of insanity was more vehemently denounced by the public in the case of William Freeman, a noted murderer, than in any other instance of recent occurrence. And now Freeman is dead, and seven physicians, with Dr. Brigham of the Utica Asylum at their head, have dissected his brain, and the result leaves no doubt that the public were wholly wrong in scouting a defence upon the ground of lunacy. Drs. Brigham, McCall, Briggs, Van Epps, Fosgate, Hyde, and Luce agree that "the brain presented the appearance of chronic disease; that the arachnoid membrane was congested; that the medullary portion was of an unnatural color, and harder than natural, as if parboiled; that the posterior portion of the skull appeared diseased, and the dura mater at that point unnaturally adherent; and that the left temporal bone, in the vicinity of the auditory nerve, was carious and much diseased." We suppose that Ex-governor Seward now stands amply vindicated, not only on the score of humanity, but on every principle of justice. * *For those who seek further light upon this "Plea of Insanity," we subjoin the authorities quoted by Mr. Merrill in the famous Tyrrel case: Dr. Elliotson on the Human Physiology. Dr. Wygam on the Duality of the Mind, p. 260. Jane C. Rider's Case, pp. 34, 35, 39, 40. Silliman's Journal, I., pp. 288, 432. Dr. Prichard on Insanity, p. 288. Dr. Ray on Insanity, p. 386, et seqq. Dr. Guy's Medical Jurisprudence, p. 265. Winslow's Plea on Insanity, I., p. 89. Sampson's Criminal Jurisprudence, p. 39. Trial of Abner Rogers, pp. 80, 81. Dr Taylor's Medical Jurisprudence, p. 650. Spurzheim's Phrenology, I., p. 143, et seqq. Good's Book of Na 1847.] Imprisonment for Life. 365 A second ground of argument, to show that the reasons for the "blood for blood" custom have ceased, is, that four thousand years ago the execution of a notorious criminal was a necessary offering to the peace of society. The only way in which further violence could be prevented was to thrust the violent man out of life. There are no traces in the patriarchal age, nor for weary years after, of any safe houses for the detention of criminals, still less of penitentiaries for their reform. Had there been even private places of secure confinement, like the castle-dungeons of the Middle Ages, we should certainly have found some allusion to their use, in the case, for instance, of those state-criminals whom David exiled from his capital, or commanded to remain within their own walls. It is not sufficient to say, with Dr. Cheever, that "the state of society in which a tower of Babel was built was not likely to suffer for want of a jail." Society then might have been unconscious of its want, might have enjoyed rather than suffered through the privilege of instant retaliation, suitable to a savage state. It is not the ability of that period to erect state-prisons, which we call in question; a den from which no living being could escape need not be a work of the highest art; a rock rolled against a cave's mouth might be security enough. Our assertion is, that there was no call for such criminal apparatus at that early day. Society took a more rapid and simple way of satisfying the instinct of justice. It often demanded the penalty of the crime on the spot where it was committed. On the other hand, we maintain, that physically, as well as morally, imprisonment for life is perfectly safe now. All admit that criminals can be effectually restrained from adding crime to crime without the taking of life. Many object to the proposed reform, on account of the social exposure which it would occasion. This popular prejudice is answered by the safety of Egypt during fifty years' abolition of the penalty, of Rome during two hundred and fifty, when the highest authorities declare that the republic flourished and order was preserved, of Tuscany during a quarter of a century, of Russia professedly from Elizabeth's time to the present, of Bombay during the administration of Sir James Mackintosh, of Paraguay under the Jesuits, and of Belgium since 1830. Michigan has lately made a similar trial with success. ture, chap. on Sleep. Upham's Intellectual Philosophy. Abercrombie on Intellectual Powers, p. 218, et seqq. VOL. XLIII. 4TH S. VOL. VIII. NO. III. 32 We maintain that the safety of society would be promoted by the disuse of capital punishments, and that crime is prompted or occasioned by every infliction of this brutal severity. At the time when the mother country punished capitally one hundred and sixty crimes, life was far less safe than at present; under Henry the Eighth seventy-two thousand thieves were hanged, and yet robbery upon the highways everywhere prevailed, and the suburbs of the principal cities were infested by mercenary assassins.* Wherever laws have become less cruel, they have been more regularly enforced, and criminals have been awed by the certainty of strict justice far more than by any increase of severity, a principle conceded by all writers and thinkers of the present day. Dr. Schmücker, himself an earnest advocate of the death-penalty, states that the mitigation of punishment in the case of highway robbery in Pennsylvania has been followed by the best effects, in a sensible diminution, almost a disappearance, of that crime. Why should murder alone be an exception to this general law, when the appalling nature of the murderer's doom causes jurors to trifle with their oaths, and witnesses to refuse testimony, and governors to pardon beyond all reason, the whole resulting already, in the experience of Pennsylvania, in twenty-two chances of escape for one of conviction of persons accused, and many of them, no doubt, guilty? Were the punishment such as humane men could approve, a punishment that promised to reform its subject and not degrade its witnesses, the proportion might be reversed, and not four in a hundred of the justly suspected elude the violated law. In Rome, under the mild administration of the present Pope, crimes are represented to have vastly decreased, and public morals to have received an immediate impulse by the disuse of the more revolting penalties. Some facts there are which go to show that imprisonment for life is more dreaded than the gallows. Cæsar is represented by Sallust as saying, "De poena, possumus equidem dicere id, quod res habet; in luctu atque miseriis mortem * Alison states (chapter sixtieth of his History), that the punishment of death was affixed by statute to the fearful and almost incredible number of above six hundred different crimes, "while the increasing humanity of the age had made so wide a departure from the letter of the law, that, out of 1872 convicted in seven years at the Old Bailey, only one had been executed," one out of nearly two thousand. Landor's saying is probably true, that the English law was bloodier than the laws of Draco, for "it punished with death crimes which he did not even notice." 1847]. esse." Reform of the Criminal. 367 ærumnarum requiem, non cruciatum esse; eam cuncta mortalium mala dissolvere; ultra neque curæ, neque gaudio locum And in confirmation of this sentiment, seven hundred citizens of the United States are reported to have committed suicide in a single year; and seventeen hundred and forty-seven persons in the same space of time in France. In addition to this, many criminals have preferred the immediate and brief agony of suffocation to prolonged imprisonment, have resisted the efforts of counsel to obtain any commutation of their fate, and prayed their friends to let the trouble be over at once. Such was the case with Leadings, Charles Thomas, Cook, Noah M. Thomas, Babe, all of them examples of very recent occurrence in the State of New York. Mrs. Fry and the famous E. G. Wakefield were both led to the conclusion, that some other punishment ought to be substituted for death, by the habitual indifference of English convicts to their doom, by the jests about " dying game which prevail at Newgate, and the exultation expressed by many a criminal in the thought of braving the terrors of the law. In making executions as private now as they were public once, many of our States have yielded to the friends of reform one of their strongest points, and agreed that this punishment is not a profitable sight for the community at large; so that, in regard to the infliction of the penalty, nine American States have decided that its practice is unfavorable to the security and virtue of society.* A third reason which existed in former times for the penalty of death has also become a reason against it. The Gospel spirit of hope for the fallen was not anticipated by the dispensations which preceded it. Certainly, in the patriarchal times, where the custom of blood for blood takes its origin, no idea was entertained of bringing back the wanderer or saving the lost. And under the Jewish code, by which such vices as smiting or cursing of parents, early unchastity, and some forms of ceremonial uncleanness, were punished with * Sir Thomas More in his "Utopia" evidently takes sides with reformers on the question of penalty. "An English lawyer run out into high commendation of the severe execution of justice upon thieves, who were then hanged so fast that there were sometimes twenty hanging upon one gibbet; and added, that he could not wonder enough how it came to pass that there were so many thieves left robbing in all places." Raphael answered, "that it was because the punishment of death was neither just in itself nor good for the public; for, as the severity was too great, so the remedy was not effectual." More's Utopia: Burnet's Transl. p. 13, |