he is
committing a murder, and know murders to be forbidden in the Ten
Commandments, and yet unable to refrain from murder. He has, say the
doctors, homicidal monomania, and it is monstrous to call in the hangman
when you ought to be sending for the doctor. The lawyer naturally
objects to the introduction of this uncertain element, which may be
easily turned to account by 'experts' capable of finding symptoms of
all kinds of monomania. Fitzjames, however, after an elaborate
discussion, decides that the law ought to take account of mental disease
which operates by destroying the power of self-control. The jury, he
thinks, should be allowed to say either 'guilty,' or 'not guilty on the
ground of insanity,' or 'guilty, but his power of self-control was
diminished by insanity.'[181] I need not go into further detail, into a
question which seems to be curiously irritating to both sides. I am
content to observe that in the earlier book Fitzjames had been content
with the existing law, and that the change of opinion shows very careful
and candid consideration of the question, and, as I think, an advance to
more moderate and satisfactory conclusions.

The moral view of the question comes out in other relations. He
intimates now and then his dissatisfaction with the modern
sentimentalism, his belief in the value of capital and other corporal
punishments, and his doubt whether the toleration of which he has traced
the growth can represent more than a temporary compromise. But these
represent mere _obiter dicta_ which, as he admits, are contrary to
popular modes of thought. He is at least equally anxious to secure fair
play for the accused. He dwells, for example, upon the hardships
inflicted upon prisoners by the English system of abstinence from
interrogation. The French plan, indeed, leads to cruelty, and our own
has the incidental advantage of stimulating to the search of independent
evidence. 'It is much pleasanter,' as an Indian official remarked to him
by way of explaining the practice of extorting confessions in India, 'to
sit comfortably in the shade rubbing red pepper into a poor devil's eyes
than to go about in the sun hunting up evidence.'[182] Fitzjames,
however, frequently remarked that poor and ignorant prisoners,
unaccustomed to collect their ideas or to understand the bearing of
evidence, are placed at a great disadvantage by never having stated
their own cases. The proceedings must pass before them 'like a dream