080 Slide – American State Trials 1918 Volume X Leo Frank Document

48 X. AMERICAN STATE TRIALS,

because every judge who has been on the bench in England
within the last two hundred years would prescribe the favor-
ite common law remedy of hanging for the disease; melan-
choly, because of a soul conscious of its deed, and struggling
in vain to resist the impulse it abhors.

Gentlemen, the legal test of insanity laid down by the pros-
ecution is not law. Our own Supreme Court has repudiated
it in the case of Baldwin. Knowledge of right and wrong
is possessed by the aane and the insane. I grant it was for
several hundred years, the only test for the common law. The
obstinate ignorance of the English Bench yielded to the gen-
ius of Erskine, what it denied to the experience of lunatic
hospitals, and granted in Hadfield’s case the existence of
insane delusion, under cautious limitations The existence
of “‘irresistible insane impulse,” known wherever insanity is
known, is yet, I believe, unknown to the common law. That
system of criminal jurisprudence left out one part of man’s
nature—the nobleat part—the will, the essential element of
responsibility, here and hereafter. What if we do know
“right from wrong,’’ if we have not the freedom of will to
choose between them? ‘Without this capacity our acts can
be neither vicious nor virtuous. Without volition, we are
no more responsible for our action than the earth if imbued
with reason would be for its revolution around the sun.

I shall appeal to this Court, and I shall not appeal in vain,
to instruct you that “‘the power to distinguish between right
and wrong,’’ is not the legal test of insanity in this state,
Our law recognizes an insanity in which this knowledge ex-
ists as @ complete exemption from human punishment. This
legal issue must be met by you, if not by the prosecution;
humanity and law demand this much at your hands,

Jurors, I have felt it to be my duty to try at least to free
your minds from some errors, which are logical resulta of the
opening speech of the prosecution. I have been thus moved
as well by my interest as a citizen as by my duty as an advo-

eate. The law of murder in this state has been presented to .

you without any reference to the element of malice; the law
of insanity has been blurred in your presence, and misstated.