lusion, the individual killed his neighbor in revenge for the supposed insult, he would, according to our law, be liable to punishment. Now it seems to us, remembering that the law is not merely a committee for the lunatics who live under it, but is, as it were, the trustee for the whole community, and that its duties to sane men are not less important, nay-seeing that, as yet, sane men are more numerous than insane men-much more important to the sane than to the insane members of the community; that the law, as it stands at present with regard to the responsibility of individuals under the influence of an insane delusion as to existing facts, is satisfactory. It seems to us, however, that in all cases the existence of such delusions should be taken into consideration in reference to the question of malice and provocation, just as drunkenness, which is not a defence on a criminal charge, may be taken into account in ascertaining the intention with which the act was done. Such a delusion as is here meant (one to produce a public benefit, etc.) could not be such as to warrant the commission of the crime, but it might be such as would to some extent be an excuse for it. This doctrine is not anywhere laid down, but we submit it with some confidence that in the event of necessity arising, it would be adopted.

17. The Reasons for regarding certain Insane Persons as Irresponsible.-We said above that the satisfactory nature of the existing tests of insanity would appear from other considerations, and we are now in a position to consider the true nature of crime, the real object of punishment, and having done so, to point out why the insane should not be subjected to the penalties of the criminal law. It is laid down in our criminal law books that a wrong intent, or something equivalent thereto, is an essential element in crime, and there is no word, the meaning of which it is more important clearly to understand, than the word "intention" in its relation to the criminal law. "Intention" in this relation is not simply purpose or design. It is clearly distinguishable from motive, which is, as it were, the goal of an action. Yet, while it is distinguishable, it is not always distinguished. The fact that the motive which led to the commission of a

certain act is one of the most prominent points in the proo of the intention, has only too frequently produced some confusion of thought. But it must be remembered that it is the "intention" and not the "motive" which gives in law the character and quality to an act. [10] And it is essential to bear in mind the fact, "that the intention to do the act exists for all criminal purposes where it is wilfully done, although the act itself was merely the means of obtaining some ulterior object." For example, if a man removes a piece of property from another's house without the consent of the owner, with the intent to convert it to his own use, and thereby despoil the owner of it, in that case he is guilty of theft. If, however, he takes it, believing it to be his own, or with the intention of returning it anon, he commits a trespass, but is not guilty of theft. And if he takes it in a case where he is justified by law in so doing, as in distress for rent due by the owner of the article, he is not guilty of theft, neither does he commit a trespass. In each of these cases the act done is the same, the motive is identical, but the intention varies the legal consequences of the act, and it is by the intention that the question whether the individual has subjected himself to civil or criminal consequences, or whether he shall be regarded as altogether innocent, must be decided. In certain cases, however, the statute law2 has declared that such and such acts shall be criminal, and has associated with a proof of the commission of the act certain penalties. In such cases an inquiry as to the intention of the party is not of the same primary importance. In another class of cases the legislature has thought it prudent to declare that there shall be a presumption of criminality associated with the commission of the act, and in that way throws upon the party proved to have committed the act in question, the onus of proving that it was done with an innocent intent. In the third class, however, the intention of the individual is of the most material importance, and, in order to secure a conviction, the criminal intention must be satisfactorily proved. It was laid down by Lord Mansfield as generally true that, where an act in itself indifferent, if done with a particular

Cr. L. Com., 4th Rep., p. 15.

Sec. 24 and 25 Vic., c. 96. sec. 58. 3 R. v. Woodfall, 5 Burr. 2667.

A

intent, becomes criminal, there the intent must be proved and found by the jury; but where the act is in itself unlawful, the proof of justification or excuse lies on the defendant, and in failure thereof the law implies a criminal intent. "guilty mind" is, however, as we have seen, essential to the conception of a crime in a very large class of cases; and a [11]" guilty mind" is said to be present in every case of intentional or voluntary wrong where the mind is actively in fault, and also in those cases where the mind, although not actively in fault, is yet the cause through its passivity-it may be by neglecting to exercise sufficient caution-of some hurt or damage. Having considered the meaning of the word "intention" as understood in law, we return to the statement that a wrong intent is an essential element in crime, and the question is, as to how this intention is to be proved. In our law the jury are justified in inferring the intent from overt act, because every man, as well in criminal as in civil procedure, must be taken to have intended that which is the necessary or natural consequence of his act; and, said Lord Ellenborough, Chief Justice, "When a man is charged with doing an act, of which the probable consequences may be highly injurious, the intention is an inference resulting from the doing of the act." And Littledale, J., has laid down the principle that if a result be the probable consequence of an act, the doer is answerable as if it were his actual object. "If," he went on to remark, "the experience of mankind must lead any one to expect the result, he will be answerable for it." It is quite evident that a man's motives and intentions, which are hidden things, can only be inferred from his acts and words. Acts are the language of motives, as words are of thought. It is, of course, impossible to punish mere intention, and it is only when the intention becomes, as it were, the foetus of the act, in an attempt, that the law can take cognizance of it. The statement of the proposition, that the criminal law looks mainly to the inten

See Reg. v. Thomas, 1 Leigh & C. 313.

* Per Cresswell, J., 12 C. B. 98; per Jervis, C. J., Id. 103, cited Arg. 8 Exch. 229. 3 R. v. Dixon, 3 M. & S. 15; R. v. Philp, 1 Moo. C. C. 263, 274; Reg. v. Hill, 8 Car. & P. 274. See Broom's Com., p. 866, note.

R. v. Moore, 3 Barn. & Adol. 184, 188.

tion which actuated the accused, has been said' to "imply the presumption 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 [12] consequences of offending;" and the criminal law of England therefore declines to punish where the actor, from want of understanding or mental disease, is not in a position to choose freely; and it might probably be added, where, through such enfeeblement or derangement, motives have lost their power of making a man choose the good rather than the bad, and the pleasant rather than the disagreeable.

218. Principle of Law illustrated. It is the same principle that induces the law to exempt very young children from the criminal responsibility of their acts; and the same principle is to be found as the reason for the non-infliction of legal penalties where the individual is, against his will, compelled to do a wrongful act, inasmuch as the dread of distantly future penalties cannot in reason be expected to prevail against the fear of present suffering. Were it more generally understood-were it more thoroughly appreciated— that it is really the same fundamental principle which induces the law to forego its penalties, even after proof of the criminal act done in these two classes of cases, less difficulty would undoubtedly arise in practice as to what amount and what kind of insanity is sufficient to establish a claim to immunity from punishment. Were it once held that the proof of that amount of insanity would relieve from the consequences of a criminal act which deprives the individual, either by amentia, dementia, or mania, of that amount of free will or choice of that power to balance and appreciate motives which is found in the ordinary ranks of mankindwere it held that the amount of insanity which deprives a man of this, as the amount of duress which deprives a sane man of the same power-would relieve an individual of criminal responsibility, no doubt could, it seems, in any case arise. In the examination of a case where duress is pleaded, as in

Broom's Com., p. 860.

the case of a crime committed by a feme covert, acting sub potestate viri, as an excuse for criminal misconduct, special circumstances may be given in evidence to repel or support the presumption of coercion. In a case of alleged insanity, then, if the individual suffering from enfeeblement of intellect, delusion, or any other form of mental aberration, was looked upon as, to the extent of this delusion, under the influence of duress (the dire duress of disease), and in so far incapacitated to choose the good and eschew the evil, in so far, it seems to us, would the requirements of the law be fulfilled; and in that way it would afford an opening, by the evidence of experts, for the proof of the amount of selfduress in each individual case, and thus alone can the criterion of law and the criterion of the inductive science of medical psychology be made to coincide.'

19. The Objects of Punishment.-It is to be remembered that the aim and object of punishment is to deter;2 and it will be useless, with regard to its end as looked at in relation to others than the criminal himself, if they through mental defects are unable to appreciate its meaning and nature, or are coerced by some overruling principle which is equivalent to the overmastering dread in the definition of duress. In similar cases the punishment will, of course, fail-except in the case in which punishment, once for all, deprives of all power to exercise the will-in its second end or object, according to Beccaria, that of deterring the criminal himself from again committing the same crime. But to say that in no case of insanity will the fear of punishment or the hope of reward deter the criminally-disposed lunatic from committing a crime, is to say what is denied by the experience of every director and superintendent of the insane throughout this country, who are in the daily habit of enforcing a code of discipline with the view of maintaining internal order in

Lord Holt, in the case of Thompson v. Leach, (3 Mod. Rep. 301,) in speaking of the old maxim of the law that a man was not allowed to stultify himself by pleading Insanity, in an action on a contract, said: "It is unaccountable that a man shall not be able to excuse himself by the visitation of Heaven, when he may plead duress from men to avoid his own act;" thereby identifying the principle of the plea in both instances, as regarding insanity as equivalent to the want of free agency produced by fear.