But, although the Italians have been pioneers in this movement, it has not been confined to them; it extends to all civilized nations, and expresses a general tendency of the age. Even the Germans, those leaders in theory and laggards in practice, whose studies and speculations have illustrated all forms and phases of judicial procedure, but who adhere so conservatively to ancient methods and resist so stubbornly the tides of reform in their own courts have yielded on this point. They no longer regard insanity and idiocy as the only grounds of exemption from punishment, but include in the same category “all morbid disturbances of mental activity,” and “all states of mind in which the free determination of the will is not indeed wholly destroyed, but only partially impaired.” In order to realize the radical changes that have taken place in this direction within a relatively recent period, it will suffice merely to compare the present criminal code of the German Empire with the Austrian code of 1803, the Bavarian code of 1813, and the Prussian code of 1851. It must be remembered, too, that these changes have been effected under the drift of public opinion in spite of the political preponderance of Prussia and her strong bureaucratic influence, which has always been exerted in favour of severe penalties, and shown slight consideration for individual frailties and criminal idiosyncrasies in inflicting punishment. As the stronghold of a stolid and supercilious squirearchy (Junkerthum) in Germany, Prussia has stubbornly resisted to the last every reformatory movement in civil and social, and especially in criminal legislation.
A recent decision of the supreme court of the German Empire (pronounced in the summer of 1894) seems to put a check upon this tendency by rejecting the plea of “moral insanity” in the extenuation of crime. As a matter of fact, however, the question whether such a state of mind as “moral insanity” exists or can exist has not yet been settled; and so long as psychiaters do not agree as to the actuality or possibility of this anomalous mental condition, courts of justice may very properly refuse to take it into consideration or to allow it to exert the slightest influence upon their judgment in the infliction of judicial punishment. Moral insanity, as usually defined, involves a disturbance of the moral perceptions and a derangement of the emotional nature, without impairing the distinctively intellectual faculties. The supposed victim of this hypothetical form of madness is capable of thinking logically and often shows remarkable astuteness in forming his plans and executing his criminal purposes, but seems utterly destitute of the moral sense and of all the finer feelings of humanity, performing the most atrocious deeds without hesitation and remembering them without the slightest compunction. In moral stolidity and the lack of susceptibility he is on a level with the lowest savage. German psychiaters, on the whole, are inclined to regard such persons, not as morally insane, but as morally degenerate and depraved; and German jurists and judges are not disposed to admit such vitiation of character as an extenuating circumstance, especially at a time when criminals of this class are on the increase and are banded together to overthrow civilized society and to introduce an era of anarchy and barbarism. The decision of the German judicatory is therefore not reactionary, but merely precautionary, and simply indicates a wise determination to keep the administration of criminal law unencumbered by theories, which science has not yet fully established and which at present can only serve to paralyze the arm of retributive justice.