This code promulgated for the Romans of Burgundy has been styled variously: Lex Romana, Liber legis Theodosii et Novellarum, Papianus, or Lex Papiania and it is by the name of Papinian that we most frequently read of it. The ascription of this code to the Roman juris-consult Papinianus is an error which has arisen from an error of an early copyist often repeated by later scribes.

The Lex Papiania is an adaptation of the Theodosian code. It presents indications of a common parentage with the Interpretatio of the Breviarium Alarici. It contains fragments of the work of Roman jurists that have not elsewhere been preserved. By this

code the Wehrgeld system for centuries so peculiarly Germanic, is reimposed upon the Romans. With the Visigothic and Burgundian codes" territoriality" triumphs.

What does all this amount to? Why should we should we study the Barbarian Codes or any other section of historical jurisprudence? The answers are plain. By such study we obtain a knowledge of legal foundations, we broaden the bases of legal principles, we anchor theories to firm facts. Again, these codes and other ancient laws afford a clear, and in many cases the only, guide to important periods of history.

Johns Hopkins University.

October, 1897.

THE

HE English law as to the criminal responsibility of the insane has had a curious history, in which America has borne a highly honorable part. For practical purposes the earliest attempt to deal with this branch of our law was made by Coke in 1625. "In criminal causes," said that great institutional writer, "as felony, etc., the act and wrong of a madman shall not be imputed to him, for in those causes actus non facit reum nisi mens sit rea, and he is amens, i. e., sine mente without his mind or discretion and furiosus solo furore punitur—a madman is only punished by his madness." And again Coke says: "The execution of an offender is for example ut poena ad paucos malus ad omnes perveniat, but so it is not when a madman is executed, but should be a miserable spectacle, both against law and of extreme inhumanity and cruelty -and can be no example to others." When we endeavor to extract from Coke, however, any definition of irresponsible insanity, little light or leading is to be extracted from his works. After assuring us that non compos mentis is the best term to describe "a man of no sound memory," he proceeds as follows: "Non compos mentis is of four kinds: (1) an idiot who, from his nativity by a perpetual infirmity, is non compos infirmity, is non compos mentis; (2) he that by sickness, grief or other accident wholly loseth his memory and understanding; (3) a lunatic that hath sometimes his understanding and sometimes not- aliquando gaudet lucidis intervallis

and therefore he is called non compos mentis so long as he hath not understanding; (4) he that by his own vicious act for a time depriveth himself of his memory

The most cursory student of these passages, with their curious garniture of Latin, will observe that Lord Coke throws no light on the test by which the existence of that degree of non compos which the law recognizes as an excuse is to be determined. Fifty years later than Coke's time we meet with the first attempt at anything of this kind in the works of Sir Matthew Hale, who became Lord Chief Justice of the King's Bench in 1671 and died in 1676. Hale divides. insanity into (1) dementia naturalis, or a nativitate; and (2) dementia accidentalis, or adventitia; and then subdivides (2) into partial and total insanity. He then goes on to explain this famous subdivision. "There is a partial insanity and a total insanity. The former is either in respect to things-quoad hoc vel illud insanire-(some persons that have a competent use of reason in respect of some subjects are yet under a particular dementia in respect of some particular discourses, subjects or applications), or else it is partial in respect of degrees, and this is the condition of very many, especially melancholy persons, who, for the most part, discover their defect in excessive fears or griefs and yet are not wholly destitute of the use of their reason, and their partial insanity seems not to excuse them in the committing any offense for its matter capital. It is

very difficult to determine the invisible line that divides perfect and partial insanity, but it must rest upon circumstances duly to be weighed and considered both by judge and jury, lest on the one side there be a kind of inhumanity towards the defects of human nature or, on the other side, too great an indulgence given to great crimes. The best measure I can think of is this: such a person, as laboring under melancholy distempers hath yet, ordinarily, as great understanding as a child of fourteen years hath, is such a person as may be guilty of treason or felony."

Here we have the earliest legal criterion of punishable insanity. Sir James Stephen demolished it in two brilliant sentences. "Surely no two states of mind can be more unlike than that of a healthy boy of fourteen and

that of a man labour

ing under melan

choly distempers.

The one is healthy

are loci classici in the best sense of the term.

In 1723 Edward Arnold was tried at Kingston for firing at and wounding Lord Onslow. The judge was Mr. Justice Tracy. It was shown that the prisoner labored under delusions and imagined that Lord Onslow sent devils into his room at night to disturb and plague him. Mr. Justice Tracy

between them there is no sort of resemblance." The phrase "partial insanity" is also quite misleading and has been productive of great mischief in the development of our criminal law. But we shall deal with this point later on. At present it may suffice to notice the fact of the advance made by Hale on the views of Coke. Let us now take a few of the causes célèbres which led to the growth of the English law in regard to the criminal responsibility of lunatics. We shall confine our attention to those that

beast" theory. But no one who keeps in view the asylum system which was in vogue in his day, and for a century later, and the deadly regularity with which it must have reduced all forms of insanity to the type of either mania or dementia, will be disposed to reflect too strongly on the memory of a judge who declined to extend to a prisoner whose disease did not conform to either of those types the protection of the law.

The next case in the series with which we are dealing is that of Earl Ferrers, who

was tried in 1760 for the murder of his steward. The murder was planned deliberately; but the accused made no attempt to escape, and the evidence plainly showed him to be insane. He was, however, convicted and executed. The only points of interest in connection with the case are the solicitor-general's statement that the prisoner should be convicted unless it was proved "that he had not sufficient capacity to form a design and to know its consequences," and Smollet's extraordinary suggestion that lunacy should not be a bar to punishment at all. "Perhaps," says the historian, "it might be no absurd or unreasonable regulation in the legislature to divest lunatics of the privileges of insanity and in cases of enormity subject them to the common penalties of the law; for, though in the eye of casuistry consciousness must enter into the constitution of guilt, the consequences of murder committed by a maniac may be as pernicious to society as those of the most criminal and deliberate assassination, and the punishment by death can hardly be deemed unjust or rigorous when inflicted upon a mischievous being, divested of all the perceptions of reason and humanity." To the credit of England, it should be added, this argument has never, since Smollett's time, been put forward by any responsible public man.

In 1800 James Hadfield was tried in the court of King's Bench, before Chief-Justice Kenyon and Justices Grose, Lawrence and Le Blanc, for having attempted to shoot King George III in Drury Lane Theatre. He was prosecuted by Sir John Mitford, afterwards Lord Redesdale, Sir William Grant, afterwards Master of the Rolls, and Mr. Law, afterwards Lord Ellenborough, and defended by the Hon. Thomas Erskine, the greatest of English advocates and the ablest of English chancellors. Hadfield had at one time been a private in a dragoon regiment, had got his head severely wounded by sabre cuts at the battle of Limelles in 1794, and had been discharged from the army on

account of insanity. He imagined that he had constant intercourse with the Almighty, that the world was coming to an end and that, like our Saviour, he was to sacrifice himself for its redemption, and though he would not be guilty of suicide he wished to precipitate these events by the appearance of crime in order that his life might be taken away from him by others. Erskine defended him with great, though sometimes over-estimated, ability, and he was acquitted. Lord Kenyon said to the jury, "If a man is in a deranged state of mind at the time, he is not criminally answerable for his acts. The material part of the case is whether, at the very time when the act was committed, the man's mind was sane." This statement of the law marks a distinct improvement on the test prescribed by Mr. Justice Tracy, but it was not destined to hold the field. In Bellingham's case in 1812, Sir James Mansfield summed up in the following terms: "There is a species of insanity where people take particular fancies into their heads who are perfectly sane and sound of mind upon all other subjects; but that is not a species of insanity which can excuse any person who has committed a crime unless it so affects his mind, at the particular period when he commits the crime, as to disable him from distinguishing between good and evil or judging of the consequences of his action." His lordship then put the case to the jury thus: "The question is this, whether you are satisfied that the prisoner had a sufficient degree of capacity to distinguish between good and evil and to know that he was committing a crime when he committed this act [the murder of the prime minister, Mr. Perceval]; in that case you will find him guilty."

We come now to the great case which settled the English law as to the criminal responsibility of the insane on its present basis-The Queen v. McNaghten. On Friday and Saturday, the third and fourth of March, 1843, Daniel McNaghten was