upon one or more subjects while the individual thus affected is rational in relation to other matters. This latter came to be recognized in time, and we find Lord Hale saying: "There is a partial insanity and a total insanity. The former is either in respect to things quoad hoc vel illud insanire. Some persons that have a competent use of reason in respect of some subjects are yet under a particular dementia in respect of some particular discourses, subjects, or applications, or else it is partial in respect of degrees, and this is the condition of very many, especially melancholy persons, who, for the most part, discover their defect in excessive fears and griefs, and yet are not wholly destitute of the use of reason, and this partial insanity seems not to excuse them in the committing of any offence for its matter capital; for doubtless most persons that are felons of themselves and others, are under a degree of partial insanity when they commit these offences. It is very difficult to define the invisible line that divides perfect and partial insanity, but it must rest upon circumstances duly to be weighed by judge and jury, lest, on the one side, there be a kind of inhumanity towards the defects of human nature, or, on the other side, too great an indulgence given to great crimes."! And we have Baron Alderson saying that a man may be non compos mentis quoad hoc, and yet not non compos mentis altogether. But this rule as to partial insanity has been universally acted upon in English Courts. Thus, in the trial of Arnold who shot at Lord Onslow in 1723, Tracy, J., remarked: "It is not every kind of frantic humour, or something unaccountable in a man's actions, that points him out to be such a madman as is exempt from punishment: it must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing no more than an infant, than a brute, or a wild beast. Such a one is never the object of punishment." It is true, as we have pointed out above with reference to Lord Coke's description that no lunatic ever was entirely deprived of his understanding and memory, or in the words which Mr. Erskine used in 1800, when defending Hadfield, who was charged with shooting at the King, "No such madness ever existed in the world." But although the Pleas of the Crown, 30. * 2 Hill's Case, Den. C. C. 260. 38 Hargrave's St. Tr. 322; 16 Howell's St. Trials, 764. earlier decisions seem scarcely to have recognized the real nature of insanity, and although the Judges in consequence failed to give what we can now regard as perfectly adequate tests of the insanity which would exempt from punishment, they have all gone upon the implied principle which is fundamental in our criminal law, viz., that the individual whom it is sought to bring within the operation of the law "has mental capacity, is a free agent, and possesses the power of electing to abstain from what is forbidden rather than suffer the consequences of offending." After the Hadfield case, to which we have just alluded, the test that there must be entire deprivation of memory and understanding seems to have been abandoned, and delusion seems to have been adopted as a test of exculpating insanity in its stead. In the course of his speech for the prisoner, Mr. Erskine, after rejecting the old test, on the ground that no insane man ever was without all remembrance of what is past, and all power of judging of what is present, said in all the cases that have filled Westminster Hall with complicated considerations, "the insane persons had not only had the most perfect knowledge and recollection of all the relations they stood in towards others, and of the acts and circumstances of their lives, but had in general been remarkable for subtility and acuteness, and that delusion of which the criminal act in question was the immediate unqualified offspring, was the kind of insanity which should rightly exempt from punishment. Delusion, therefore, where there is no frenzy or raving madness is the true character of insanity." There is a good deal which might be said in favor of making delusion the test of insanity, and it has been adopted by some writers as at least an alternative test. One of our modern and most able philosophical writers has made belief the very fundamental concept. He holds that knowing is not before it, and that knowledge without believing it to be knowledge would not be knowledge. With a very little ingenuity, it might be shown that as insanity can only be manifested through mind, and as any change in the mental status must produce a change in the mental beliefs Broom's Com. 869; 880. Shelford's Treatise of the Law concerning Lunatics, etc., 2d ed. pp. 41, 42. which accompany and are part of these conditions, that consequently all insanity was manifested in morbid beliefs, and that consequently delusion was a good test of insanity. But it obtained no permanent place as a test of insanity in courts of law; and in the trial of Bellingham,' it was decided that "although a man might be incapable of conducting his own affairs, he may still be answerable for his criminal acts if he possessed a mind capable of distinguishing right from wrong." Again, Lord Lyndhurst laid it down that "in order to be irresponsible, the accused must have been ignorant that his act was a crime against the laws of God and nature." These opinions were almost invariably acted upon by the Judges, and found their way into the text-books. Thus, Mr. Chitty says: "The substantial question presented to the jury is whether, at the time the alleged criminal act was committed, the prisoner was capable of judging between right and wrong, and did not then know he was commiiting an offence against the law of God and of nature." And Russell, in his standard work, gives the inability to distinguish right from wrong as the characteristic of that kind of insanity which exempts from punishment of crime.* 3 9. Rules of Law considered. All these rules of law are open to one objection, and that is, that they have not sufficiently included reference to the volitional character of crime as distinguished from the act which is the direct result of disease. It is clear that a man might be aware that if a thing was forbidden, he might know that it was contrary to the law, and yet he might not be in a position to refrain from the act. There can be little doubt that that is a cogent objection against all these rules. We cannot think, however, that these rules were unjust in practice. We feel convinced that in most cases the jury did not understand the word "know" in its separate, philosophical sense, as distinguished from desires and will, but regarded the knowledge of the law which was required to constitute responsibility in law, as knowledge which is passing over into act, and in that was inclusive of the volitional element which is necessary to the See 1 Collinson on Lunacy, 657. * Med. Jurisprudence, 354. Rex v. Offord, 5 Car. & P. 168. 4 Crimes and Misdemeanors, 12. constitution of the idea of criminality. Still we regard all these rules as defective; and we are of opinion that the questions which the House of Lords proposed to the Judges. after the trial of McNaughten, who shot Mr. Drummond in 1843, and which elicited those answers which may be regarded as the authoritative exposition of the law at the present time, were called for. These answers, which are given below, have met with somewhat fierce opposition, and it may be well to consider shortly whether these afford a satisfactory test of insanity in relation to irresponsibility. It seems to us quite unnecessary to dwell longer upon the decisions which were given before that time; and although criticism is easy, it is not profitable. % 10. The Answers of the Judges to the House of Lords Questions' Q. 1. What is the law respecting alleged crimes committed by persons afflicted with insane delusions in respect of one or more particular subjects or persons; as for instance when, at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or avenging some supposed A bill has been introduced into Parliament during the present session to amend the law of homicide. It is dated 24th March, 1874, and has the name of Mr. Russell Gurney on the back of it; but it was, we have reason to believe, drawn by Mr. Fitzjames Stephen, Q. C. Its 24th section is as follows: Homicide is not criminal if the person by whom it is committed is at the time when he commits it prevented, by any disease affecting his mind, "(a) From knowing the nature of the act done by him; "But homicide is criminal, although the mind of the person committing it is aff cted by disease, if such disease does not in fact produce some one of the effects aforesaid in reference to the act by which death is caused, or the inability to control his conduct is not produced exclusively by disease. If a person is proved to have been labouring under any insane delusion at the time he committed the homicide, it shall be presumed, unless the contrary appears or is proved, that he did not possess the degree of knowledge of self-control hereinbefore specified." This b I was, we have reason to believe, submitted to the Judges for their consideration, and we further believe that they reported against the measure, partly on the ground that it would be most anomalous and improper to deal with the defence of insanity in relation to homicide, without at the same time dealing with it in relation to other offences. The bill has been referred to a Select Committee of the House of Commons. See note to § 10 and 16, in Addenda. BR. INS.-4 grievance or injury, or of producing some supposed public benefit? A. 1. Assuming that your Lordships' inquiries are confined to those persons who labour under such partial delusions only, and are not in other respects insanc, we are of opinion that notwithstanding the accused did the act complained of with a view, under the influence of insane delusion, of redressing or avenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable according to the nature of the crime committed, if he knew, at the time of committing such crime, that he was acting contrary to law, by which expression we understand your Lordships mean the law of the land. Q. 2. What are the proper questions to be submitted to the jury where a person alleged to be affected with insane delusion respecting one or more particular subjects or persons is charged with the commission of a crime, (murder for example,) and insanity is set up as a defence? Q. 3. In what terms ought the question to be left to the jury as to the prisoner's state of mind at the time when the act was committed? A. 2 and 3. As these two questions appear to us to be more conveniently answered together, we submit our opinion to be, that the jury ought to be told in all cases that every man is to be presumed sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that at the time of committing the act the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong. Q. 4. If a person under an insane delusion as to existing facts commits an offence in consequence thereof, is he thereby excused? A. 4. On the assumption that he labours under partial delusion only, and is not in other respects insane, he must be considered in the same situation, as to responsibility, as if the facts with respect to which the delusion exists were |