It is not its introduction into the Scotch practice is very curious. only in Scotland the usual verdict of acquittal but it is a final verdict there, and there can be no new trial, so that the stigma it throws on a prisoner, whom it may be said at one and the same time to acquit and condemn, can never be judicially removed. This is surely wrong, and yet I do not remember ever to have heard a complaint against the use of this verdict in Scotland, from which we may infer that the consciences of the acquitted persons are too well satisfied with their liberation to object that it has been but grudgingly conceded to them. But that it frequently works injustice I am convinced. It is known frequently to be returned where the prosecution utterly fails, breaks down, and the indictment is withdrawn ; although it is quite unsuited to such a result, for it is at least a verdict upon the merits, and if those merits are withdrawn by the prosecutor himself the verdict ought clearly to be not guilty. To the latter verdict of course its existence and use in the Scottish practice lend great force, and there a verdict of not guilty is a complete and unqualified discharge, moral as well as legal, without the least taint or prejudice remaining behind. Still, admitting all that, I very much doubt the expediency of its introduction into the practice of the courts of this country; and generally having regard to sound judicial principle, this verdict of not proven appears to me to be unconstitutional, illogical, and unjust. It is unconstitutional because it is directly opposed to the presumption of innocence; it is illogical, because it is no sufficient answer to the issue which the jury have to try; and it is essentially unjust, because it is qualified by no means by which the stigma it casts can be removed or even reconsidered. But it has frequently been proposed here that it might be beneficially practised in the English courts, if made the ground for an application for a new trial; and in the Appendix to the Eighth Report of the Criminal Law Commission, will be found numerous evidences in favour of this view; but, to my mind, the benefit to be derived from such a change is rather doubtful, and my own feeling is that the English people should remain satisfied with their old verdicts of guilty or not guilty. IV. and lastly, I had prepared some remarks on the means by which the punishment to be inflicted on conviction may be made certain and deterrent, and on the subject of criminal appeal; but I have detained you already so long, that I feel constrained to omit them on the present occasion. I cannot, however, refrain from expressing my sincere regret that Sir Fitzroy Kelly's excellent Bill has not ere this passed into law. Besides its other merits, it would have the effect of rendering any supposed advantage from the use of the verdict of not proven altogether unnecessary, and I trust that the opposition to it by the Government may on further consideration be * I would refer those who would wish to make themselves acquainted with the subject to an article on this verdict which was published in the Law Magazine for 1850, Vol. 44, pp. 182-199. N removed. In the meantime, I feel pleasure in congratulating law reformers on the passing of the recent statute for the better regulation of convict discipline; and Sir George Grey's admirable circular to the judges clearly describes its purpose and provisions, and the mode in which convicts under sentence of penal servitude will now be treated by the Home Office. I have now in conclusion to state that, for the reasons assigned and suggested by the preceding observations, my answer to the question "Whether any, and what ameliorations can be introduced into the institution and conduct of criminal prosecutions ?"-is, first, that the existing system of prosecution by private parties is objectionable; secondly, that the institution of the grand jury ought to be retained, but that its use in regard to bills of indictment should be limited to cases which have not otherwise been properly investigated; thirdly, that in all preliminary investigations with a view to trial regulations ought to be made in restraint of the existing system of unqualified publicity; fourthly, that in regard to the form of the trial, nothing should be addressed to the jury before the evidence is entered upon, but a simple and bare statement of the facts; and that thereafter the trial should be so regulated as to allow the prisoner or his counsel to have the last word; fifthly, that the introduction of the verdict of not proven into the English practice is inexpedient; and sixthly, that the want of any efficient system of criminal appeal is a defect in our criminal procedure, and ought to be remedied. RESPONSIBILITY AND MENTAL COMPETENCE. On what Principles ought the Law to deal with Questions of Responsibility and Mental Competence, in Civil and Criminal Cases respectively? By JAMES FITZJAMES STEPHEN, Barrister-at-Law. THIS HIS question, I think, will be found to admit of a simple answer, although the amount of discussion which it has excited, and the difficulty which the public appear to experience in dealing with practical questions more or less dependent upon it, would seem, at first sight, to point to the inference that the subject is one of great intricacy and difficulty. My own opinion is, that when once fairly stated, it almost answers itself; and in order to set this in a clear light, I propose to begin by trying to show how the supposed difficulty arises. It arises, I believe, almost entirely from the careless and unsystematic manner in which the matter is usually discussed. A trial involving the question of the legal relations of madness is reported in the newspapers. Its incidents happen to excite and amuse the public; they approve or disapprove the judgment of the court, or the verdict of the jury, and leading articles and letters from occasional correspondents discuss the subject with more or less fervour and knowledge, but always with direct reference to the particular case. Hence the particular result and the general principle get confused together, and if the particular result happens to be unsatisfactory, a vague impression gets abroad that the general principles of the law are unsound. Take, for instance, the discussions on the Windham case, or on the case of Townley, tried at Derby last winter for murder. In each of these instances the public was more or less dissatisfied with the final result of the proceedings-with what was considered to be the needless waste of a large estate in costs in the Windham case, and what was considered to be a wrongful interference with the course of justice in the case of Townley. These, and several other wellknown cases, bring the question of the laws relating to madness under discussion, and the discussion produced the general vague feeling of dissatisfaction to which I have referred. The object of this paper will be to show that this uneasiness is merely the result of ignorance, that the "principles on which the law deals with questions of responsibility and mental competence," to use the terms of the question, are perfectly sound, and, when once understood, extremely simple, and that no change in them is desirable, whatever change may be required in other matters with which they are at times accidentally connected. In order to disengage the question from matters which do not properly belong to it, but are constantly treated as if they did, I will begin by specifying a few of these collateral and irrelevant questions. In the first place, the question of capital punishment is altogether irrelevant to the question which we have to discuss, although they are constantly mixed up with each other. Can a madman commit murder? is one question. Ought a madman convicted of having committed murder to be hung for it? is quite a distinct one. The question whether a madman can commit murder depends on the questions, What are the mental elements of the crime of murder? How far does the fact that a man is mad prove the absence of those mental elements, or any of them? The question whether a madman or any man ought to be put to death for murder, or any other crime, is not a legal question at all. It is a question of policy and morality, upon which those who agree in the legal principles relating to the subject, may and do differ widely. In the next place, all questions of procedure are irrelevant to the question which we have to discuss. The most important of these is the question of experts or skilled witnesses-a question of great interest, and on which part of the time of this Association might be usefully employed. Whether, according to our present English practice, questions of responsibility and competence should be left to a jury directed by a judge, and instructed by the evidence of scientific men; or whether, according to the practice which prevails in some other countries, particular questions should be referred to scientific persons chosen for the purpose, whose decision should be practically, or even formally, binding upon the tribunal which has to decide upon the main question, is, no doubt, a very important problem, but it has nothing to do with the question before us. It is one thing to say how the fact of madness, when established, is to be dealt with; it is another thing to say how that fact is to be established. These observations are so obvious that they may appear superfluous, but no one who has not watched the progress of public opinion upon such topics, and observed the difficulty of getting those who are not familiar with legal principles to separate the principle from the application, can imagine how easily people are led by such topics to suspect unsoundness in principles, when in fact they have no evidence of anything else than imperfection in the means by which those principles are applied to practice. Misconception of this kind is so natural, and yet so important, that I venture to attribute to it the whole of the difference which does certainly exist between the medical and legal professions on this subject. It lies in a confusion between the evidence by which a proposition is proved, and the proposition to the proof of which that evidence is directed, and it appears to me that if those eminent members of the medical profession who charge the law of the land with ignorance and cruelty in the principles which it has adopted on this subject, kept this distinction clearly in view, they would see that the law is neither cruel nor ignorant. The principle on which the law deals with "questions of responsibility and mental competence," and on which, as I shall contend, it ought to deal with them, is that madness is evidence of irresponsibility and incompetence, but that it does not constitute irresponsibility or incompetence. You will perhaps allow me to dwell for a short time on this distinction, because when clearly understood it will serve as a clue to guide us through the whole subject. The difference between what is in evidence and what is in issue, is perfectly familiar to lawyers, and in English law the line is drawn with peculiar precision by the form of pleading, and by the habit of referring matter of law and matter of fact to different tribunals, but the distinction is not equally familiar to others, as appears from the observations made by medical witnesses on trials in which sanity comes into question. Such phrases as the legal test of insanity," are constantly used by writers on medical jurisprudence, and the line of argument usually followed by such writers is to show cases of insanity which escape this legal test. Hence they argue that the "test" is fallacious. This would be much to the purpose if the law did lay down "tests of insanity," or even inquired at all into the existence of insanity; but this is seldom the case, and never in a criminal trial; and never, as I think, when the question of civil competence arises. In the criminal trial the issue is usually whether or not the act was wilful or malicious; in a civil case, it varies according to circumstances. If the validity of a will were in question, the issue would be whether or no there was "a disposing mind." The existence of madness would be evidence 66 against will or malice, or against the existence of a disposing mind, but the issue would not be sane or mad. In less technical words the law of this country considers madness as one of the facts which the jury will have to consider in determining the question whether the prisoner did wilfully and maliciously kill, burn, or steal, or whether the testator had a disposing mind when he made his will, but it does not consider that it is conclusive proof of the negative. This may be right or wrong. I think it right, and will give my reasons for that opinion immediately, but whether it is right or wrong, it is impossible to criticise the law fairly, or to understand the way in which it is administered, unless this distinction is kept constantly and fully before the mind. With these preliminary explanations as to the limits of the subject to be discussed, I will now proceed, first to state, and next to justify, what I conceive to be the principle on which the law of this country does deal and ought to deal with questions of responsibility and mental competence in civil and criminal cases respectively. The principle on which the law deals with all human actions is to classify them according to the different elements of which they are composed, and to affix to them such consequences, either civil or penal, as may be thought expedient, according to the presence or absence of this or that particular element. All actions are ultimately composed of bodily motions and mental dispositions. The action, for instance, of writing a letter is composed of certain motions of the hand over the paper, the presence to the mind of certain thoughts, and that direction of the mind towards the object to be attained, which we call an intention to express those thoughts in words. Take away, from whatever cause, any one of these elements, and the action is not done. Those, for instance, who believe the stories which some of us have read in the papers of persons whose hands were suddenly possessed by spirits which used them as mere tools to write with, would not say that the person with whose hand such a liberty was taken wrote what was written. For ordinary language, and for ordinary purposes, it is not necessary to enumerate with any great precision, the elements, either bodily or mental, of the actions which we describe. There is no inconvenience, for example, in leaving it uncertain whether the words, "write a letter," would include the case of a man writing a letter in his sleep, because we are not tied down on all occasions to the use of any one phrase, but are able to suit our language to the particular matter in hand; but the language of the legislator must be fixed, and when he defines an act which must draw after it important consequences, civil or penal, he must define its mental as well as its external elements. Thus, for instance, the law defines a will to be a written instrument of a particular kind, executed with particular formalities, by a person who at the time has a disposing mind. It defines a murder to be the killing of a man, wilfully, and with malice aforethought; and it further defines malice aforethought to consist of the aggregate of many different intents, such, for instance, |