1a. Insanity.

3. Instant and well-grounded fear, stronger than the fear naturally inspired by the law (e):

Fear of excessive unlawful harm. Coercion of married women.

In each of these cases (1-3) the fear of punishment is not calculated to act upon the person so as to deter him, or to deter others by making him an example; therefore the punishment would be inoperative and worse than useless.

4. When an act, under ordinary circumstances criminal, is denuded of that character, inasmuch as it is directly authorized by the law:

In pursuance of legal duty; e.g., the sheriff hanging a criminal.

In pursuance of legal right; e.g., slaying in selfdefence.

Here, as in the first class, there is no criminal intention.

Each of these grounds of exemption must now be dealt with.

Insanity. With regard to no subject in criminal law is there so much obscurity and uncertainty as on the question of the responsibility or irresponsibility of a prisoner when the state of his mind at the time of the commission of the act is the point at issue. It has often been asserted, and not without a considerable degree of truth, that the acquittal or conviction of a prisoner, when insanity is alleged, is more or less a matter of chance. The subject is one on which the views taken by medical men differ most widely from those taken by lawyers; and as the former

(e) Austin, 1092, &c.

are generally the most important witnesses in cases of alleged insanity, the confusion is by no means diminished (ƒ).

Two classes of mental alienation are usually recog- Idiocy and nized:insanity.

1. Dementia naturalis, or a nativitate-in other words, idiocy, or continuous weakness of mind from birth, without lucid intervals: a person deaf and dumb from birth is by presumption of law an idiot, but it may be shewn that he has the use of his understanding.

2. Dementia accidentalis, or adventitia usually termed insanity, in the narrower signification. The mind is not naturally wanting or weak, but is deranged from some cause or other. It is either partial (insanity upon one or more subjects, the party being sane upon all others) or total. It is also either permanent (usually termed madness) or temporary (the object of it being afflicted with his disorder at certain periods only, with lucid intervals), which is usually denominated lunacy (9).

the law of

Three stages in the history of the law of insanity History of may be discerned. The first, outrageous as it was, may insanity. be illustrated by the following dictum of an English judge:-A man who is to be exempted from punishment "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 (h)." The second stage regarded as the test

(f) "There is great difference of opinion as to the cause of the uncertainty; the lawyers asserting that it is owing to the fanciful theories of medical men, who never fail to find insanity when they earnestly look for it, the latter protesting that it is owing to the unjust and absurd criterion of responsibility which is sanctioned by the law."-Maudsley's Responsibility in Mental Disease (1874), 101.

) v. Bac. Abr. Idiots. As to dementia affectata, or drunkenness, v. p. 25. (h) R. v. Arnold, 16 St. Tr. 764.

M'Naughten's

Case.

Partial

insanity.

of responsibility the power of distinguishing right from wrong in the abstract (). The third stage, unhappily, is that in which we live; though common sense may soon inaugurate a fourth. The existing state of doctrines dates from the trial of M Naughten in the year 1843 (j).

Certain questions were propounded by the House of Lords to the judges. The substance of their answers was to the following effect:-"To establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party 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" (k). Thus the question of knowledge of right or wrong, instead of being put generally and indefinitely, is put in reference to the particular act at the particular time of committing it.

As to partial insanity, that is, when a person is sane on all matters except one or more, the judges declared that "he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if, under the influence of his delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punish

(i) R. v. Bellingham, Coll. 636.

(j) 10 Cl. & Fin. 200; 1 C. & K. 130.

(k) Cf. Alison's Principles of Criminal Law of Scotland, pp. 645, 654. "The insanity must have been of such a kind as entirely to deprive the prisoner of the use of reason, as applied to the act in question, and of the knowledge that he was doing wrong in committing it."

ment" (7). After laying down, as above, what may be called the "particular right and wrong theory," they abandon it here, and also in another answer, where, still dealing with partial delusions, they express their opinion that "notwithstanding the party accused did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable if he knew at the time of committing such crime that he was acting contrary to the law of the land" (m).

It has been held that an apparent absence of motive Absence of for the deed is not any ground for inferring an irresist- irresistible motive, and ible and insane impulse; and that though there be an impulses. irresistible impulse, if there be no real delusion as to any fact, it affords no defence (n). Why a man should be punished for what he cannot resist, it is, perhaps, hard to comprehend (0).

("Here is an unhesitating assumption that a man, having an insane delusion, has the power to think and act in regard to it reasonably; that, at the time of the offence, he ought to have and exercise the knowledge and self-control which a sane man would have and exercise, were the facts with respect to which the delusion exists real; that he is, in fact, bound to be reasonable in his unreason, sane in his insanity."-Maudsley, 97.

(m) For strictures on these principles of "exquisite inhumanity," see remarks of Judge Ladd in State v. Jones, 50 New Hampshire Reports, 369. (n) R. v. Haynes, 1 F. & F. 666. R. v. Barton, 3 Cox, 275.

(0) It may be interesting to notice how succinctly the proposed Criminal Code of 1880 dealt with this question of insanity:

"No person shall be convicted of an offence by reason of an act done or omitted by him when labouring under natural imbecility or disease of the mind, to such an extent as to render such person incapable of appreciating the nature and quality of the act or omission, and of knowing that such act or omission was wrong.

"A person labouring under specific delusions, but in other respects sane, shall not be acquitted on the ground of insanity under the provisions hereinafter contained unless the delusions caused him to believe in the existence of some state of things which if it existed would justify or excuse his act or omission. Insanity before or after the time when he committed or omitted the act, and insane delusions though only partial, may be evidence that the offender was at the time, when he committed or omitted the act, in such a condition of mind as to render him irresponsible for such act or omission.

66

'Every one shall be presumed to be sane at the time of doing or omitting any act until the contrary is proved."

Evidence of medical wit

nesses.

Trial, when insanity is pleaded.

As to medical evidence on the question of insanity— a witness of medical skill may be asked whether, assuming certain facts, proved by other witnesses, to be true, they, in his opinion, indicate insanity. But he cannot be asked, although present in Court during the whole trial, whether from the evidence he has heard he is of opinion that the prisoner, at the time he committed the alleged act, was of unsound mind; for such a question, unlike the previous one, involves the determination of the truth of the evidence, which it is for the jury to determine (p).

The law presumes sanity; and, therefore, the burden of the proof of insanity lies on the defence. Even in the case of an acknowledged lunatic, the offence is presumed to have been committed in a lucid interval, unless the contrary be shewn. It is for the petty jury to decide whether a case of insanity, recognized as such by the law, has been made out. The grand jury have no right to ignore a bill on the ground of insanity. The jury are obliged to attend to the directions of the judge as to what is called the law on the subject, but which is rather an erroneous opinion as to a matter of fact. There seems to be no sound reason for withdrawing any part of the question of insanity from the jury-a thing which is done when the artificial test of responsibility is propounded to them (q). When, on the part of the defence, the insanity of the prisoner at the time of the commission of the offence is given in evidence, and the jury acquit him, they must find specially whether he was insane at the time of the commission of the offence, and declare whether they acquit him on that ground. If they so

(p) R. v. Frances, 4 Cox, 57. See also M Naughten's Case.

(9) "If the tests of insanity are matters of law, the practice of allowing experts to testify what they are should be discontinued; if they are matters of fact, the judge should no longer testify without being sworn as a witness, and shewing himself qualified to testify as an expert."-Judge Doe in State v. Pike, 49 New Hamp. Rep. 399.