m the best of motives or the worst. A rebel is
equally mischievous whether he is at bottom a patriot or an enemy of
society. The legislator cannot excuse a man because he was rather
misguided than malignant. It is easy to claim good motives for many
classes of criminal conduct, and impossible to test the truth of the
excuse. We cannot judge motives with certainty. The court can be sure
that a man was killed; it can be sure that the killing was not
accidental; but it may be impossible to prove that the killer had not
really admirable motives.

But if so, what becomes of the morality? The morality of an act is of
course affected (if not determined) by the motive.[180] We can secure,
no doubt, a general correspondence. Crimes, in nine cases out of ten,
are also sins. But crimes clearly imply the most varying degrees of
immorality: we may loathe the killer as utterly vile, or be half
inclined very much to applaud what he has done. The difficulty is
properly met, according to Fitzjames, by leaving a wide discretion in
the hands of the judge. The jury says the law has been broken; the judge
must consider the more delicate question of the degree of turpitude
implied. Yet in some cases, such as that of a patriotic rebel, it is
impossible to take this view. It is desirable that a man who attacks the
Government should attack it at the risk of his life. Law and morality,
therefore, cannot be brought into perfect coincidence, although the
moral influence of law is of primary importance, and in the normal state
of things no conflict occurs.

There are certain cases in which the difficulty presents itself
conspicuously. The most interesting, perhaps, is the case of insanity,
which Fitzjames treats in one of the most elaborate chapters of his
book. It replaces a comparatively brief and crude discussion in the
'View,' and is conspicuously candid as well as lucid. He read a great
many medical treatises upon the subject, and accepts many arguments from
an opponent who had denounced English judges and lawyers with irritating
bitterness. There is no difficulty when the madman is under an illusion.
Our ancestors seem to have called nobody mad so long as he did not
suppose himself to be made of glass or to be the Devil. But madness has
come to include far more delicate cases. The old lawyers were content to
ask whether a prisoner knew what he was doing and whether it was wrong.
But we have learnt that a man may be perfectly well aware that