Insanity considered in its medico-legal relations

Front matter

Lyj:- c

^UFORa/^

A

Preface

In preparing this work for the public the chief objects in view were to point out the pernicious uncertainty of verdicts in insanity trials, with the hope that by arousing attention to the magnitude of the evil, at least, some of the more objectionable features of our medical jurisprudence may be removed; to faithfully call attention to the more prominent causes of that uncertainty; "to 'hold as 'twere the mirror up to nature ; to show virtue her own feature, scorn her own image;" and, with the most friendly feelings for both my own and the legal profession, to criticise severely, and to censure when necessary, not the individuals, but the system which has made insanity trials a reproach to courts, lawyers, and the medical profession. My intention at the first was to prove every proposition introduced ab initio, but afte* carrying out the intention for some time, I found I had written over seven hundred pages, and had not then fairly commenced the discussion of the points particularly contemplated ; and, believing that

6 PEEFACE.

few readers would be content to toil throngli so manypages of preliminary matter; and, that in place of one small volume, tliere would be several large ones ; that part of my plan was abandoned, and instead I have laid the conclusions of standard writers under large contribution, with just enough of the authors' reasoning to give them coherence, referring in every case to the work quoted, so that my readers may investigate the subject more fully if they so desire. By the aid of the "physical medid!^ theory here introduced, and, I think fully established, by abolishing legal tests of insanity so called, and by securing efficient, trustworthy expert testimony in every trial, through the scheme herein proposed, it is believed that the disgraceful, haj)hazard trials of the past, and present, will give place in the future, to trials as orderly, and in which verdicts will be regarded as certain and trustworthy, as those in any other class of cases brought before the courts. The work being designed for members of the legal, as well as of the medical profession, the use of technicalities, psychical, metaphysical, and medical, has been studiously avoided.

THE AUTHOK.

Flint, Mich., 1883.

Chapter I. Introductory

FAQK

Uncertainty of Verdicts in Insanity Trials — Aim and Scope of this Work — Causes of Uncertainty — Insanity not understood — Definitions of Insanity — Legal Tests and Definitions — Contradictory Opinions of Judges — Improper Use of the Term "Expert" — Taylor's " Ordinary Rule of Society" Test examined— Conclusion reached — Illustration, the Eucharist — General Conclusion reached that, " no Unreasonableness of Belief, nor Extravagance in Behavior is alone Conclusive Evidence of Insanity" 13

CHAPTER II. "physical media theory" introduced and discussed with

THE " psychical" OR " METAPHYSICAL" THEORY.

Crime cannot be committed unless there is a Mind to will and a Body to execute — Medical Jurisprudence has nothing to do with either Mind or Body if separated — What is Mind ? — No Direct or Primary Evidence of the Existence of Mind — Importance of the Body — Sensations — Diseased Organs produce Disordered Sensations — Diseased Organs of Transmission produce Distorted Mental Manifestations — Distorted or Abnormal Men-

8 CONTENTS.

PASS

tal Manifestations are called Diseases of the Mind, Insanity — No Proof that the Mind is ever diseased — IMedication of the Insane irrational if the Disease is Mental — Definition of Disease— Partial Insanity impossible according to the Psychical Theory — Insanity does not prove that it is the Mind that is diseased — Evidence in favor of the " Physical Media Theory" from the Physical Expression of Mental Emotions — The Mental Manifestations in Diseases (Fevers, Inflammation of the Brain, etc.) — Insane Delusions induced and removed at will by Medicines — Post-Mortem Disclosures — Cases reported — Evidence from Small Brains— Brain the Organ of Mind — All Experts believe Insanity to be a Physical Disease — Evidence from Insane Asylums — Conclusions reached — Definition of Insanity — Corollary 35

Chapter III. The Somatic Theory

In considering Insanity a Physical Disease the " Somatic and Physical Media Theories" are in Accord — Important Points of Difi'erence between the Theories — Mind not necessarily a Brain Function, because it is obliged to use the Brain in its Manifestations — Which is Precedent and which Consequent — Somatists deny the Existence of Free Will— Heredity determines irresistibly the Character — Cannot even will against it — There can be no Crime where there is no Free Will — If the Effect of Hereditary Neuroses, Crime is not Guilt to the Perpetrator— Heredity considered — Efforts to obtain Trustworthy Data— Heredity supported by the "Evolution Theory" — Evolution Theory defective — Defects considered — Physical Development of Thought Hypothesis examined — Scientific Demonstv.itions not always Trustworthy — Conclusions reached . . 73

CONTENTS. 9

Chapter IV. The Intermediate Theory

PAQE

What Messrs. Wharton and Still6 claim for it — A Theory must be established to have any Authority — Claims of the "Intermediate" to be regarded as a Theory considered — Want of Clearness and Precision of Language deprecated — Definition of " Theory" and " Hypothesis" — Designation "Intermediate" a Misnomer — Physical Origin and Growth of Mental Disease considered — System of Therapeutics — Obviation of Difficulties by " Intermediate" considered — Position assumed by Messrs. Wharton and Still6 considered — Legal Testa cannot define or determine Physical Diseases — Conclusion . . . .89

Chapter V. Experts

Definition of Experts in Insanity — General Medical Practitioners are not Experts in Insanity — Non-Experts ought not to bo allowed to give Evidence as Experts — Result pernicious when so allowed — Precedent — Many Legal "Precedents" discarded Medical Opinions — Importance of studying the Reasons which underlie Judicial Decisions — Conflict between Expert Opinions and Legal Tests — The Question of Responsibility considered — Crime cannot be committed by an Insane Person — Insanity a Question of Fact for the Jury, not of Law for the Judges — Only Experts can diagnose Insanity — Hypothetical Cases — How prepared — Want of Opportunity and Skilled Observation — Prepared by Interested Parties — Deceptive and Untrustworthy— Alleged Insane Prisoners should be sent to Insane Asylums, and Superintendents after Examination should depose directly to the Question of Insanity — Sanity or Insanity of Testators — Guiteau Trial — Responsibility already fixed by

10 CONTENTS.

FAQE

Law — Necessity for Amendments in the Law — Judges' Kesponsibility — Experts' Irresponsibility — Remedy — Insane Prisons should be provided — Scheme for securing Responsible, Trustworthy Experts — Benefits that would accrue — Contradictory Legal and Expert Tests of Insanity cannot both be correct — Judges v. Judges — No settled Legal Criteria of Insanity— Criminal Legal Tests, if applied, would turn Thousands of Lunatics loose from Insane Asylums — Mode of examining Expert Witnesses criticised — Probate Insanity Trials — Important Discoveries and Improvements hindered by^Excessive Fear of Innovation — Harvey, Jenner, Simpson — Qualification of Experts — Medical Profession — Responsibility and Services — Brothers, Expert and Judge — Official Reconciliation of Conflicting Expert Opinions — " American Medical Association"— Vexed Questions settled — "Association of Medical Superintendents of American Institutions for the Insane" — Experts worthy of Trust — Conclusions 120

Appendix

judges' opinions.

(The figures refer to the section.)

"Wild-Beast Test" — Absolute Alienation of Reason Necessary, 72 — Insanity no Bar to Responsibility, must be punished as a Warning to Others — Punishment of the Insane against Law, of Extreme Inhumanity, and is no Warning to Others, 73_<' Right and Wrong" Test affirmed, 74— Last Opinion declared to be of Exquisite Inhumanity, Absurd, and Impracticable, 75 — Total Insanity precludes a Trial, Insanity regarding the Particular Act sufficient — The Test lies in the Word " Power," had he Power to think and act rightly? 76 — Did he know that the Act was forbidden by the Law? — An Offence against the Laws of God and Nature — Burden of Proof

CONTENTS. 11

FAOH on the Accused, and must be unquestiontible, and Alienation absolute, 77 — Must know that he was doing Wrong in the Act in Question — Must know that he was doing Wrong in the Act in Question and at the Time, 78 — The Law does not recognize "Uncontrollable Impulse" — "Uncontrollable Impulse" no Defence, 79 — Uncontrollable Impulse a Good Defence — Under " Uncontrollable Impulse" the Act was not his Act, and he is not Guilty, 80 — "Moral Insanity" relieves from Responsibility, 81 — "Moral Insanity" affords no Relief from Responsibility — "Moral Insanity" does not relieve from Responsibility, 82 — Proof of Insanity rests on the Prisoner, if in doubt the Jury ought to convict — The Proof of Insanity to acquit ought to be as strong as of Guilt to convict, 83 — The State must prove Sanity as well as Guilt — After the Presumption of Sanity has been removed the State must prove Sanity as well as Guilt, 84 — Preponderance of Evidence of Insanity ought to acquit, 85 — A Reasonable Doubt as to Sanity ought to acquit — A Doubt whether the killing was the result of Mental Disease ought to acquit, 86 — Whether there is such a Disease (Dipsomania), and whether the Prisoner had it, are Questions of Fact, not of Law — When the Expert testifies to one Test of Insanity and the Judge gives another, either the Expert testifies to a Question of Law or the Judge to a Matter of Fact — All Symptoms and all Tests of Mental Disease are Matters of Fact for the Jury, 87 — Medical Theories of Insanity arise from the Vicious Principle of considering Insanity a Disease, 88 — Lawyers are profoundly ignorant of, and Medical Superintendents know, all that is known of Mental Diseases, 89 — Medical Expert Testimony of no Value — Medical Testimony not only valueless, but worse than that, 90 — Medical Experts much better acquainted with Insanity than either Courts or Lawyers — Medical Expert Opinions Competent Evidence and entitled to Great Respect, 91 221

MEDICO-LEGAL RELATIOxNS OF INSANITY.

Chapter I. Inteoductoey

Uncertainty of Verdicts in Insanity Trials — Aim and Scope of this Work — Causes of Uncertainty — Insanity not understood — Definitions of Insanity — Legal Tests and Definitions — Contradictory Opinions of Judges — Improper Use of the Term " Expert" — Taylor's " Ordinary Rule of Society" Test examined — Conclusion reached — Illustration, the Eucharist — General Conclusion reached that, " no Unreasonableness of Belief, nor Extravagance in Behavior is alone Conclusive Evidence of Insanity."

•

§ 1. That a feeling of profound and general distrust prevails with reference to legal decisions in all cases in which insanity is an element of the trial, is an under-statement of the fact. One of the ablest medico-forensic writers^ states : " It is notorious that the acquittal or conviction of a prisoner when insanity is alleged is a matter of chance. Were the issue to be decided by tossing up a shilling, instead of by the grave procedure of a trial in court, it could

^ Mandsley, Responsibility in Mental Diseases, p. 101.

14 MEDICO-LEGAL EELATIONS OF Ilf SANITY.

hardly be more uncertain. The less insane person sometimes escapes, while the more insane person is sometimes hanged; one man laboring under a particular form of derangement is acquitted at one trial, while another having an exactly similar form of derangement, is convicted at another trial."

Another eminent medical jurist,^ an acknowledged authority, both in this country and in Britain, says : ..." acquittal on the plea of insanity is, on some occasions, a mere matter of accidentr " Either some persons are improperly acquitted on the plea of insanity, or others are unjustly executed;"^ and, unfortunately, the facts, on a careful examination of the subject, fully corroborate this severe arraignment of the jurisprudence of insanity. Is not the travesty of justice shocking? Guilty persons acquitted and innocent persons hanged in the sacred name of justice, after an intended impartial legal trial ! The thought is appalling, and the magnitude of the evil cannot easily be exaggerated. Independent of the injustice to individuals and to society, possibly no greater calamity can befall a nation than to lose confidence in the judiciary thereof.

1 Taylor, Med. Juris., vol. ii. p. 589. . ^ Ibid., p. 580.

IliTTEODUCTOKY. 15

Apart from " insanity trials," our judicial decisions give very general satisfaction, and are received with confidence by the people. The probity and ability of our judges have rarely been challenged. The ability of the bar of this country is unquestioned, and from no people can more intelligent and trustworthy jurors be drawn than from American citizens. Possessing unimpeachable judges, able lawyers, and intelhgent jurors, all the elements of eminently reliable courts, why is it that verdicts in a large class of cases are not at all to be depended upon — are so uncertain that they command neither the respect nor confidence of the people, and are therefore shorn of the moral force and influence that properly appertain to judgments of courts?

§ 2. That such uncertainty of verdict exists, or is possible, postulates some grave error or defect in the judicial proceedings, and consequently the interests of society, of the judiciary, and. of all persons connected with insanity trials demand a searching investigation, to discover if possible the cause or causes, the persons or classes, responsible for the miscarriage of justice, and to devise such remedies as, properly applied, will insure reasonable certainty of true verdicts in all insanity cases, " a consummation devoutly

16 MEDICO-LEGAL KELATIOISTS OF INSANITY.

to be wished," wliicli, if obtained, would render life and liberty more secure, and erase the foul blot that mars the otherwise fair record of our judicial proceedings. Such is the task undertaken by the writer.

§ 3. Doubtless, underlying the whole subject of the jurisprudence of insanity, as a potent cause of the uncertainty of verdicts, is the fact that the real premises are imperfectly understood. At every trial the question, "What is insanity?" is reiterated, and no definition has yet been furnished that commands general credence and acceptance. The oj)inions of the courts, as expressed in their rulings and charges to juries, are contradictory one of another, and physicians called to testify as experts exhibit in their evidence anything but uniformity of oj^inion. What do authorities say as to this ?

§ 4. Webster defines insanity as " the state of being insane ; unsoundness of mind ; derangement of intellect; madness." Worcester, as "the state of being insane ; lunacy ; mania ; Avant of sound mind ; madness; delirium." These authorities do not help us, as, according to them, insanity is a want of sound mind, madness, lunacy, mania, and delirium ; and what are delirium, mania, lunacy, madness, and want of sound mind? Insanity, of course. Lexicogra-

INTEODUCTOKY. 17

phers afford us no aid. We sliall now consult metaphysicians, psychologists, and medical jurists. Locke defines a madman to be " one who reasons correctly from false premises." Cullen defines insanity to be " a lesion of the intellectual faculties, without pyrexia, and without coma." Abernethy, as " the loss of the faculty of attention." Combe says, " It is a prolonged departure, and without an adequate external cause^ from the state of feeling and modes of thinking usual to the individual who is in health ; that is the true feature of disorder of the mind." And the same writer gives another definition, in which he characterizes insanity as " a morbid action in one, in several, or in the whole of the cerebral organs, and, as its necessary consequence, functional derangement in one, in several, or in the whole of the mental faculties which these organs subserve." Connoly, "a disorder of thepower of comparison or judgment." Guislam, "a derangement of the mental faculties, morbid, apyrexial, and chronic, which deprive man of the power of thinking and acting freely as regards his happiness, preservation, and responsibihty." Lelut, "a lesion in the association of ideas." Marc, "the loss of the faculty of volition." Morel, " a cerebral affection, idiopathic or sympathetic, destroying the in-

18 MEDICO-LEGAL EELATIONS OF INSAJTITY.

dividual's moral liberty, and constituting a derangement of his acts, tendencies, and sentiments, as well as a general or partial disorder of his ideas." Copland, " a deviation from, or perversion of, the natural or healthy state of the mind, as manifested either by the moral emotions and conduct, or by a partial or general disorder of the intellectual powers and understanding." Taylor says,^ " The terms insanity, lunacy, unsoundness of mind, mental derangement, mental disorder, madness, and mental alienation or aberration have been indifferently applied to those states of disordered mind in which a person loses the power of regulating his actions and conduct according to the ordinary rules of society." Definitions and criteria of insanity might be quoted almost indefinitely, as the number is limited only by the number of writers on the subject, but enough have been referred to to show that there is none that commands general assent, because had one been found wholly trustworthy, all others would have been discarded.

§ 5. Let us now turn to the law. It has to deal officially with insanity. What settled tests or well-defined criteria have the courts which may be invoked

1 Med. Juris., vol. ii. p. 476.

IXTEODUCTOEY. 19

in determining responsibility where insanity is alleged as a defence, or bar to punishment for crime committed? Unfortunately, an examination of "judges' opinions" proves that what has been shown to be concision among psychical authorities is, with the added contradictory rulings of the courts, " confusion worse confounded."

Giving in a few words or sentences the following legal tests or criteria of insanity, it will be impossible in every, or indeed in any, case to convey the exact shade of thought, with the nice distinctions, as expressed by the learned judges in their elaborate opinions. To guard, however, against even the appearance of misrepresentation, reference will be made to the Appendix "Judges' Opinions,"^ giving in every case the section, and name of the judge whose opinion is epitomized.

" General insanity would necessarily preclude a trial, as a person in that condition can make no defence whatever." Beardsley, C. J., § 76.

" That you are of unsound mind I believe, but that is no reason why you should not be punished, as an example to others." Bramwell, B., § 73.

^ Vide Appendix, pp. 221-250.

" To execute an insane person is against law, and of extreme inhumanity and cruelty, and can be no warning to others." Sir Edward Coke, § 73.

To relieve from responsibility, insanity must be absolute ; a man must know no more than an infant, a brute, or wild beast. Trac}^, J., § 72.

Absolute insanity not necessary; if the prisoner was insane ivith reference to the crime charged, it is suflScient. Beardsley, C. J., § 76.

It must be clearly shown that the accused did not know right from wrong. Partial insanity no bar to responsibility. English Judges in Conference, § 74.

The preceding opinion designated " exquisitely inhumane" and absurdly impracticable. Ladd, J., § 75.

"The test lies in the word 'power.' Had the accused power to know right from wrong, and had he j)ower to adhere to the former and avoid the latter?" Brewster, J., § 76.

The law does not recoo;nize "uncontrollable impulse" if the prisoner knew right from wrong. Alderson, B., § 79.

There is an uncontrollable impulse, or irresistible inclination to kill, which, when proved, relieves from res^Donsibility. Gibson, C. J., § 80.

" If he knew that he was committing an act against

INTKODUCTOEY. 21

God and nature, lie is responsible." Lord Lyndliurst, § 77.

" If the person acted under uncontrollable impulse, notwithstanding his knowledge, the act was not his act ; hence he is not responsible." Shaw, C. J., § 80.

"Moral insanity" affirmed to be held a good defence by all enlightened jurists. Robertson, J., § 81.

" Moral insanity" denied as being a good defence, and the opinion that it was, declared to be a most startling, irresponsible, and dangerous doctrine, unknown to the courts of last resort in either Britain or this country. Williams, C. J., § 82.

If he did not know that the act he was doing was wrong, he is not responsible. Tindal, C. J., § 78.

If he knew that the act was wrong at the time he committed the deed, he is responsible. Parke, B., §78.

"The defence must prove absolute alienation beyond all doubt, such insanity as would prevent the accused from knowing that murder was a crime against the laws of God and nature, and ' that there ivas no other proof of insanity which would excuse murder or any other crimeJ " Sir James Mansfield, §77.

An insane man cannot commit a crime. If there

22 MEDICO-LEGAL EELATIONS OF INSAIflTY.

is a doubt of the insanity, how can the jury say a sane man committed the crime ? A reasonable doubt as to insanity should avail as much as a doubt of any matter of fact. Crawford, J., § 86.

The onus of proving insanity is on the accused, and if left in doubt, the jury should convict. Rolph, B., § 83.

The onus of proof of insanity, as well as of guilt, rests on the state after the presumption of sanity has been removed by the defence. Cooley, C. J., § 84.

The proof of insanity to acquit should be as strong as the proof of guilt to convict. Hornblower, C. J., § 83.

If the jury entertain a reasonable doubt of insanity, they ought to acquit. Doe, J., § 86.

A prepojiderance of evidence in favor of insanity should acquit. Shaw, C. J., § S5.

Whether there is such a mental disease (dipsomania) is a matter of science and of fact, not of law. Smith, C. J., § 87.

If he knew that the act was a crime forbidden by the law, he was responsible. Lord Brougham, § 77.

There are no legal tests of insanity. When the judge gives a legal test of insanity, he either testifies to a question of fact, or the expert witness has testi-

INTEODUCTORY. 23

fied to a question of law. Thus the law is brought into conflict with itself. Doe, J., § 87.

The introduction of medical opinions and theories in the subject of insanity has proceeded up)on the vicious principle of considering insanity a disease. Lord Chancellor Westbury, § 88.

Judges and lawyers, profoundly ignorant of insanity, have invaded the province of medical experts, the province of those who know all that is known on the subject, and for legal tests use exploded obsolete medical theories. Doe, J., § 89.

Ordinary men of the world just as competent as witnesses as medical experts in insanity cases. Bramwell, B., § 90.

Medical experts are infinitely better qualified to judge of insanity than are courts or lawyers. Ladd, J., § 91.

Expert testimony not only of no value, but worse than that. Davis, J., § 90.

Expert testimony of great weight, and deserves the respectful consideration of the jury as competent evidence. Shaw, C. J., § 91.

The whole difiiculty is that courts have undertaken to declare that to be law which is a matter of fact. All symptoms and all tests of mental disease are purely matters of fact for tlie jury, and not matters of law for the judge. Doe, J., § 87.

§ 6. In the foregoing comparatively few utterances of the courts, what phase or degree of insanity, as relieving the individual from responsibility, has not been authoritatively affirmed and authoritatively denied ? An insane person cannot be tried for crime ; insanity must be absolute ; partial insanity sufficient ; the insane must be punished as a warning to others ; punishing an insane person extremely cruel and inhumane, and no warning to others ; must know right from wrong; must know right from wrong at the time ; must know right from wrong at the time, and that the act charged loas wrong ; insanity must be proved beyond a doubt ; a preponderance of proof of insanity sufficient ; if any reasonable doubt of insanity exists, acquit ; the onus of proof of insanity on the defence ; the onus of proof on the State ; medical opinions and theories in insanity cases are vicious ; medical experts know all that is known on the subject ; judges and lawyers j)rofoundly ignorant of insanity ; expert testimony of high value ; expert testimony worse than valueless ; and last, but not least, there are no legal tests of insanity. These pro^DOsitions, and many more, have all been affirmed as ques-

INTRODUCTORY. 25

tions of law, and, unfortunately, tlie changes of legal tests appear to have little relation to time ; they do not keep pace with our increased knowledge of insanity, as the opinions of the English judges in conference, designated by Judge Ladd as of " exquisite inhumanity," and absurd, were delivered less than forty years ago, and the savage dictum of Baron Bramwell was uttered in 1860, while the exquisitely humane opinion of Sir Edward Coke was delivered three centuries ago, ere the subject of insanity had emerged from the thick superstitious gloom with which it was enshrouded, when the loss of reason was looked upon as a dire disgrace, — the special visitation of the Almighty in his anger, or as a direct demoniacal possession.

§ 7. With such variable legal criteria in insanity trials, is it surprising that there should be uncertainty of verdict ? The legal tests appear to be as untrustworthy as are the psychical definitions, and, as if the diversity and mutability of criteria were not enough, the almost invariable practice of allowing, and requiring general medical practitioners, who, in a critical sense, know nothing whatever of insanity, to testify as experts, removes the little remaining proba.bility of uniformity of procedure or certainty of verdict.

It is obvious that no metaphysical or psychical definition or legal test has yet been found which can be safely invoked to determine the sanity or insanity of prisoners charged with the commission of crime; nor do we think a safe criterion ever will be found, for reasons which will be presented when inquiring into the nature of insanity.

§ 8. Dr. Taylor says :^ "Many attempts have been made by psychologists to define insanity ; but the definitions . . . are defective, inasmuch as they are not adapted to the various foi'ms of the disease." Messrs. AVharton and Stille do not attempt a definition ; they say :^ "To those who have examined that portion of the preceding pages which treats of the legal relations of mental unsoundness, it will be obvious that no hypothesis can be constructed which will meet with exactness every possible future case. No general definition has therefore been attempted, and it is sufficient at present to notice the three prominent hypotheses by which the cause, rather than the nature, of mental unsoundness has been explained. This examination is here made more thorough, from the fact that it is upon the result of this inquiry that the plii-

1 Med. Juris., vol. ii. pp. 476-7. ^ Med. Juris., I 318.

INTRODUCTORY. 27

losoj)liy of tlie common law doctrine of insanity must depend." Definitions and criteria, legal, moral, and intellectual in their scope, must therefore be discarded, as, with a single exception, one after another of them has repeatedly been shown to be untrustworthy. The exception referred to is the criterion laid down by Dr. Taylor, known as the "ordinary rule of society" test, which is sometimes invoked ; and not being aware of the existence of any analysis of it, a brief examination of its claim to be considered a criterion of insanity will be made before entering upon the discussion of the " three prominent hypotheses."

§ 9. Dr. Taylor says : ^ " The terms insanity, lunacy, unsoundness of mind, mental derangement, mental disorder, madness, and mental alienation or aberration have been indifferently apj)lied to those states of disordered mind in which a person loses the power of regulating his actions and conduct according to the ordinary rules of society."

That which is to be used as a criterion or rule of judgment must itself be a fixed quantity if it is expected that conclusions deduced therefrom will be exact and uniform; that which is mutable cannot

^ Med. Juris., vol. ii. p. 476.

properly be used as such standard. At what time in the world's history have " the ordinary rules of society" been of Medo-Persian immutability ? What are " the ordinary rules of society" to-day, what were they a hundred years ago, and what will they be a century hence ? Tliere are in society three grades of men, — those who are abreast with, those who are behind, and those wdio are intellectually in advance of the times in which they live. It would be manifestly unjust to judge those who are either before or after their own times by " the ordinary rules of society," because they do not properly belong to that period, and the world's greatest men have almost invariably been in advance of their own times.

Had Galileo not been in advance of the age in which he lived, he would not have been persecuted for asserting the earth's diurnal motion and its motion round the sun. Festus declared Paul to be mad through much learning because he expressed a new and strange belief, at variance with " the ordinary rules of society" in Judea, and yet, Festus and society to the contrary notwithstanding, the mad doctrines of Paul are now, and have been for centuries, believed by the majority of the civilized world, giving tone and direction to society. * A little less than two liun-