Let us suppose that X. is a peaceful man and not ill-disposed towards A.; then the motive of X.'s act would be inexplicable from his normal disposition; consequently, according to Bentivegni, his post-hypnotic state would be abnormal. Y.'s remark about the heat was different. It was a natural remark, supposing that the room was really warm. Consequently, we have no reason to conclude that the carrying out of a post-hypnotic act presupposes a generally abnormal state. In many cases the question is no doubt difficult to decide, because "normal disposition" is hard to define. However, Bentivegni has at least given us an essential point of view from which these post-hypnotic suggestions may be judged, and one which in many cases will enable us to decide whether the subject's mental state is normal or abnormal.

Having learned how to judge post-hypnotic states in which there are no signs of a fresh hypnosis, we will return to the criminal importance of such cases. We have seen that posthypnotic crimes may be committed in an apparently normal state, but that § 52 of the Criminal Code would not save such persons from punishment, although they were driven to commit the acts by some irresistible power. But according to Benti-vegni's explanations, we might perhaps even here assume a state of loss of consciousness within the meaning of §51, but then we should have to make it quite clear that we were giving a wider meaning to the idea contained in the paragraph than was originally intended. Still, from a practical point of view such an interpretation of the paragraph is a rational one.

Desjardins, in France, expresses the opinion that any person who commits a crime by hypnotic or post-hypnotic suggestion is punishable, because he might have seen the possibility of such a suggestion. Yet according to Lilienthal such a position is quite untenable in Germany. It would certainly be quite contrary to the whole spirit of the German Criminal Code to punish a person for an act committed when he was in a state of irresponsibility and without intention.

The case would be different if the subject had caused the criminal act to be suggested to him in hypnosis, perhaps with the view of carrying it out more courageously. Lilienthal thinks that in this case the hypnotic would be punishable. The power of self-determination would be normal at the moment of decision. The induction of the hypnosis would be the cause of the act, and therefore the hypnotic ought to be punished.

Campili, who has thoroughly discussed the different legal questions connected with hypnosis, distinguishes between the standpoints of two schools - the classical and the anthropological.1 According to the former, there is no guilt in the last-mentioned case, as there can be no reflection when the crime is committed; according to the latter, the criminal must be punished because such people as he are dangerous to society.

Of course, every one who accepts a criminal suggestion in hypnosis and then carries it out would not receive the benefit of §§ 51 and 52 of the Criminal Law. It would be essential that the depth of the hypnosis and the suggestibility of the subject satisfied the relative conditions contained in §51, which demand the exclusion of free volition, or a morbid disturbance of the mental activity if the action is to go unpunished. A light state of hypnosis would in nowise satisfy those conditions; and similarly, when applying § 52, we should have to consider whether the power was really irresistible.

1 These are the names of the two schools of criminology in Italy; the classical recognizes freedom of will, and the anthropological does not. However, the last-named also agrees to the punishment of the criminal; but only because he is dangerous to society, not because his will is free when he commits the offence.

In the foregoing I have discussed the question whether and to what extent a subject is responsible who commits an offence either in hypnosis or from post-hypnotic suggestion. Another question to be considered concerns the responsibility of the person who makes the suggestion. The legal decision of this question would depend upon whether the subject were responsible or not according to either §51 or §52. If the subject is not responsible, the person who made the suggestion would have to be considered the agent. Any person who causes a lunatic to commit a crime is considered the actual agent (Liszt) and not mere inciter, because a lunatic, being irresponsible, cannot commit a crime. It would be the same, of course, with a subject who commits a suggested crime either in hypnosis or post-hypnotically, and is not considered answerable. It is only when the subject who commits the crime is punishable - as, for instance, when the hypnosis is not deep enough, or the suggestibility insufficient, to exclude responsibility - that the person who made the suggestion would have to be considered merely the instigator of the crime (Preyer, Krafft-Ebing, Neumeister). Therefore any person who orders a hypnotic who is still in a condition of responsibility to take anything away from a third party would, if the theft were carried out, be punishable as the instigator of the crime.

Further, as Preyer has pointed out, §49A of the Criminal Code would probably be applicable; according to it, it is a punishable offence to instigate the commission of a crime.

The importance of hypnosis in civil law was not seriously considered at first. Most investigators passed it over, supposing that hypnosis could only be important in criminal law. However, Bentivegni has put forward the contrary in his work, Die Hypnose und ihre zivilrechtlicke Bedeutung (Leipsic, 1890), and Drucker has also expressed a similar opinion. I know from my own experience that it is no uncommon thing for the loser in a doubtful legal transaction to ask for a written expert opinion to the effect that his signature, etc., was obtained by hypnotic suggestion. The main points of what follows are on the lines of Bentivegni's work, which touches the root of the matter even in the present day, although it appeared before the civil law was codified. Bentivegni, in discussing hypnotism in its relation to civil law, distinguishes between responsibility in business and liability for damages. The first means such a degree of freedom of will as is necessary for the transaction of business in connection with legal affairs.