had been evidences that the phrenzy was counterfeit; but none of these appearing, and the honesty and virtuous deportment of the woman in her health being known to the jury, and many circumstances of insanity appearing, the jury found her not guilty, to the satisfaction of all that heard it.

Touching the great crime of treason regularly the same is to be said, as in case of homicide, such a phrenzy of insanity as excuseth from the guilt of the one, excuseth from the guilt of the other: the reason is the same; he that cannot act felonicè or animo felonico

cannot act proditoriè, for being under a full alienation of [37] mind, he acts not per electionem or intentionem. This appears by the statute of 33 H. 8. cap, 20. which, though it enact, that a non compos mentis shall be tried for treason, yet it expressly declareth, "That if any commit high treason, while they are in good, whole, and perfect memory, and after examination become non compos mentis and that it be certified by four of the council, that at the time of the treason they were of good, sound, and perfect memory, and then not mad, nor lunatic, and afterwards became mad; then they shall proceed to trial:" which strongly enforceth, that a treason cannot be committed by a madman, or lunatic, during his lunacy,

And with this agrees my lord Coke, P. C. p. 6. in these words, "He that is non compos mentis, and totally deprived of all compassings and imaginations, cannot commit high treason by compassing or imagining the death of the king; for furiosus solo furore puniter; but it must be an absolute madness, and a total deprivation of memory."

This, though it be general, yet the same author tells us, 4 Rep. 124. b. Beverly's case, in these words, " Mes in ascun cases non compos mentis poit committe hault treason, come si il tua, ou offer a tuer le roy." This is a safe exception, and I shall not question it, because it tends so much to the safety of the king's person: but yet the same author, P. C. p. 6. tells us, that though this was anciently thought to be law, yet it is not so now; for such a person as cannot compass the death of the king by reason of his insanity, cannot be guilty of treason within the statute of 25 E. 3. And thus far concerning the incapacity of idiocy, madness, and lunacy.[5]

[5] Insanity is a disease, which causes the patient while awake to mistake the phantoms and operations of imagination for realities, which consequently become the motives of his discourse and actions, while at the time there is an absence of any bodily disorder that can account for the phenomena.

Perhaps the best definition of Insanity is in sir Alexander Critchon's Commentaries, p. 165. Insane persons are arranged into classes.

1. MANIACS, who are under a phrenzy.

2. LUNATICS, having lucid intervals.

3. MELANCHOLICS, subject to constant depression.

4. MONOMANIACS, under a delusion upon a particular subject.

5. DEMENTED, deprived of mind by grief, sickness, accidents, or old age. Chitty's Medical Jurisprudence, 345.

Lord Coke says, "Many times the Latin word expresses the true meaning, and calleth

him not amens demens furiosus, lunatics fatuus stultus, or the like, but non compos mentis." Co. Litt. 247, a.

Bracton says, "furiosus non intelligit quod agit et animo et ratione caret, et non multum distat a brutis." Lib. 5, 420, b.

Lord Hale observes correctly, (ante 29, 30,) that " it is very difficult to define the invisi. ble line that divides perfect and partial insanity, but it must rest on circumstances duly to be weighed and considered by judge and jury, lest on the one side there be a kind of inhumanity towards defects of human nature, or, on the other side, too great an indulgence given to crimes."

The most difficult cases," said Erskine in Hadfield's trial, “ are where reason is not wholly driven from her seat, but distraction sits down upon it along with her, holds her trembling upon it, and frightens her from her propriety. Such patients are victims to delusion of the most alarming description, which so overpowers the faculties and usurps so firmly the place of realities, as not to be dislodged and shaken by the organs of perception and sense. Delusion, therefore, where there is no phrenzy or raving madness, is the true character of insanity, and where it cannot be predicted of a man standing for life or death for a crime, he ought not to be acquitted."

Some rules about freeing a lunatic from criminal responsibility may be found in 1 Collinson on Lunacy, 473, 474. 477.

There must be an absolute dispossession of the free and natural agency of the human mind. The prisoner must have been incapable of distinguishing between good and evil, and of comprehending the nature of what he was doing. Being a lunatic before or after the act, is not enough; his madness must be complete and absolute at the moment when the offence was committed.

Cooper expresses the same rule. "The insanity must be distinct and manifest at the time the crime was committed." Cooper's Med. Jur. 381.

So Male says, Where no insanity is proved, and there has been none previously ex. isting, where the delinquent has acted from facts and existing circumstances, the law does not protect him. Cooper's Med. Jur. 255.

Shelford, from a number of adjudged cases, thus deduces the rule of law. If a person liable to partial insanity, which only relates to particular subjects or notions upon which he talks and acts like a madman, still has as much reason as enables him to distinguish between right and wrong, he will be liable to that punishment which the law attaches to his crime. Shelford on Lunacy, 458.

He cites lord Ferrer's case, 10 Howell's State Trials, 947; Arnold's case, 16 Howell's State Trials, 764; Parker's case, 1 Collinson on Lunacy, 477; Bellingham's case, 1 Collinson on Lunacy, 636; Offord's case, 5 Carr and Payne, 168; Bowler's case, 1 Collinson, 673, and 54 Annual Register, 309.

Sir John Mitford said, in Hadfield's trial, 27 Howell's State Trials, 1290, "because there is a natural impression on the mind of man of the distinction between good and evil, which never entirely loses hold of the mind whilst the mind has any capacity whatever to exert itself, nothing but total and absolute debility deprives the mind of any man of that. If conscious of the act, as the result of design and contrivance, and of the conse quences of the act, is there not a moral sense which indicates criminal responsibility?" "The true criterion of insanity," said sir John Nichols, "is delusion," and he cites Locke on the Human Understanding, Book 2, ch. 11, § 13. In Dew v. Clark, 3 Addams 90, 91. Dementation arising from unruly passion, is no excuse.

Mr. Chitty (p. 345) thus expresses the rule of law: The true test of insanity, where there is no phrenzy or raving, is the absence or presence of delusion, and delusion exists whenever an individual once conceives something extravagant to exist which has no existence, and when he is incapable of being reasoned out of that absurd conception. In criminal cases, therefore, the question is simple, adapted to the comprehension of every juryman, "whether, at the time the act was committed, the prisoner was incapable of judging between right and wrong, and did not know that the particular act was an offence against the laws of God and nature."

He adds, "The law presumes the competency, and therefore the question is always presented to a jury upon the negative, which must be established on the part of the prisoner; the burthen of proof is on him."

Mr. Chitty is entirely supported by Mr. Erskine, whom he quotes, and the uniform tenor of authoritative decisions shows that no better rule than that which Erskine laid down in Hadfield's trial has been framed.

To deliver a lunatic from responsibility to criminal justice, said he, above all, in

a case of atrocity, the relation between the disease and the act should be apparent, the delusion and the act must be connected. I cannot allow the protection of insanity to a man who exhibits only violent passions and malignant resentments acting upon real circumstances, who is impelled to evil from no morbid delusion, but who proceeds upon the ordinary perceptions of the mind. See Parker arguendo in Roger's Trial, 16-19.

"In criminal cases, in order to absolve the party from guilt, a higher degree of insanity must be shown than would be sufficient to discharge him from the obligations of his contracts. In these cases the rule of law is understood to be this; that 'a man is not to be excused from responsibility, if he has capacity and reason sufficient to enable him to distinguish between right and wrong, as to the particular act he is then doing; a knowledge and consciousness that the act he is doing is wrong and criminal, and will subject him to punishment. In order to be responsible he must have sufficient power of memory to recollect the relation in which he stands to others, and in which others stand to him; that the act he is doing is contrary to the plain dictates of justice, and right injurious to others, and a violation of the dictates of duty. On the contrary, although he may be labouring under partial insanity, if he still understands the nature and character of his act and its consequences, if he has a knowledge that it is wrong and criminal, and a mental power sufficient to apply that knowledge to his own case, and to know that if he does the act he will do wrong and receive punishment, such partial insanity is not suffi cient to exempt him from responsibility for criminal acts. If then it is proved to the satisfaction of the jury, that the mind of the accused was in a diseased and unsound state, the question will be, whether the disease existed to so high a degree, that for the time being, it overwhelmed the reason, conscience, and judgment, and whether the prisoner in committing the homicide, acted from an irresistible and uncontrolable impulse; if so, then the act was not the act of a voluntary agent, but the involuntary act of the body without the concurrence of a mind directing it." 2 Greenl. on Erid, § 372.

The question of insanity in a prisoner is a question for the jury, and ought to be clearly made out, in order to exeinpt the party from punishment. Rex v. Arnold, 1 Russ. C. & M. 9.

To justify the aquittal of a prisoner indicted for murder, on the ground of insanity, the jury must be satisfied that he was incapable of judging between right and wrong; and that, at the time of committing the act, he did not consider that it was an offence against the laws of God and nature. Rex v. Offord, 5 Car. & P. 168.

If, to an indictment for treason for attempting the life of the sovereign, by shooting at the Queen, the defence be insanity, the question for the jury will be, whether the prisoner was labouring under that species of insanity, which satisfies them that he was quite unaware of the nature, character, and consequences of the act he was committing; or in other words, whether he was under the influence of a diseased mind, and was really unconscious at the time he was committing the act, that it was a crime. If the jury in such a case are of opinion that the prisoner did not in fact do all that the law deems essential to constitute the offence charged, they must find him not guilty generally; and the Court have no power to order his detention, under the 39 & 40 Geo. 3. c. 94, s. 2, although the jury should be clearly of opinion, that the prisoner was in fact insane. Such a state of circumstances appearing to be a casus omissus in the act. Reg. v. Oxford, 9 Car. & P. 525.

If on a trial the defence is insanity, a witness of medical skill may be asked whether such and such appearances, proved by other witnesses, are in his judgment symptoms of insanity. Rex v. Wright, R. & R. Č. C. 456.

Where a prisoner's defence is insanity, a medical man who has heard the trial, may be asked whether the facts proved, show symptoms of insanity. Rex v. Searle, 1 M. & Rob. 75.

The prisoner was indicted for shooting at his wife with intent to murder her, &c., and was defended by counsel, who set up for him the defence of insanity. The prisoner, however, objected to such a defence, asserting that he was not insane; and he was allowed by the judge to suggest questions, to be put by his lordship to the witnesses for the prosecution, to negative the supposition that he was insane; and the learned judge also, at the request of the prisoner, allowed additional witnesses to be called on his behalf for the same purpose. They, however, failed in showing that the defence was an incorrect one; and on the contrary, their evidence tended to establish it more clearly, and the prisoner was acquitted on the ground of insanity. Reg. v. Pearce, 9 Car. & P. 667.

A party having been indicted for a misdemeanor, in uttering seditious words, and upon

his arraignment refusing to plead, and showing symptoms of insanity; and an inquest being forthwith taken under 39 & 40 Geo. 3, c. 94, s. 2, to try whether he was insane or not:-Held, first, that the jury might form their own judgment of the present state of the prisoner's mind, from his demeanor while the inquest was being taken; and might thereupon find him to be insane, without any evidence being given as to his present state:-Secondly, that upon the prisoner showing strong symptoms of insanity in Court during the taking of the inquest, it became unnecessary to ask him whether he would cross-examine the witnesses, or would offer any remark on the evidence. Reg. v. Goode, 7 Ad. & E. 536.

A grand jury have no authority by law to ignore a bill for murder on the ground of insanity; it is their duty to find the bill; otherwise the Court cannot order the detention of the party during the pleasure of the crown either on arraignment or trial, under Stat. 39 & 40 Geo. 3, c. 94, ss. 1 & 2. Reg. v. Hodges, 8 Car. & P. 195.

In Massachusetts, when one indicted for murder would make no distinct plea, and appeared to be deranged, a jury were empanelled to try whether he neglected to plead wilfully, or by the act of God; and on the finding of the jury that it was for the latter reason, the court remanded him to jail. Commonwealth v. Braley, 1 Mass. 103.

"The great object of punishment by law, (said Chief Justice Shaw, of Massachusetts, in Roger's case,) is to afford security to the community against crimes, by punishing those who violate the laws; and this object is accomplished by holding out the fear of punishment, as the certain consequence of such violation. Its effect is to present to the minds of those who are tempted to commit crime, in order to some present gratification, a strong counteracting motive in the fear of punishment. But this object can only be accomplished when such motive acts on an intelligent being capable of remembering that the act about to be committed is wrong, contrary to duty, and such as in any well ordered society would subject the offender to punishment. It might in some respects be more accurate to say that the party thus acting under a temptation, must have memory and intelligence to recollect and know that the act he is about to commit is a violation of the law of the land. But this mode of stating the rule might lead to a mistake of another kind, inasmuch as it would seem to hold up the idea, that before a man can be justly punished, it must appear that he knew that the act was contrary to the law of the land. But the law assumes that every man has knowledge of the laws prohibiting crimes; an assumption not strictly true in fact, but necessary to the security of society, and sufficiently near the truth for practical purposes. It is expressed by the well known maxim, ignorantia legis neminem excusat-ignorance of the law cannot be pleaded as an excuse for crime. The law assumes the existence of the power of conscience in all persons of ordinary intelligence—a capacity to distinguish between right and wrong in reference to particular actions: a sense of duty and of right. It may also be safely assumed that every man of ordinary intelligence knows that the laws of society are so framed and administered, as to prohibit and punish wrong acts-violation of duty towards othersby penalties in some measure adapted to the nature and aggravation of the wrong and injurious acts thus done. If, therefore, it happens to be true in any particular case, that a person tempted to commit a crime does not know that the particular act is contrary to positive law, or what precise punishment the municipal law annexes to such act; yet, if the act is palpably wrong in itself; if it be manifestly injurious to the rights of another, as by destroying his life, maiming his person, taking away his property, breaking into or burning his dwelling-house, and the like, there is no injustice in assuming that every man knows that such acts are wrong, and must subject him to punishment by law; and, therefore, it may be assumed for all practical purposes, and without injustice, that he knows the act is contrary to law. This is the ground upon which the rule has been usually laid down by judges, when the question is whether a person has sufficient mental capacity to be amenable for the commission of a crime, that he must have sufficient mental capacity to distinguish between right and wrong, as applied to the act he is about to commit, and to be conscious that the act is wrong; instead of saying, that he must have sufficient capacity to know that it is contrary to the law of the land, because this power to distinguish between right and wrong as applied to the particular act-a power which every human being, who is at the same time a moral agent and a subject of civil government, is assumed to possess-is the medium by which the law assumes that he knows that the same act which is a violation of high moral duty is also a violation of the law of the land. Whereas, if it were stated that a person must have sufficient mental capacity to know and understand that the act he is about committing is a violation of the law of the land, it might lead to a wrong conclusion, and raise a doubt in regard to

persons ignorant of the law. There is no doubt that many a man is held responsible for crime, and that rightfully, who might not know that the act he was about committing was contrary to the law of the land, otherwise than as a moral being he knows that it is wrong-a violation of the dictates of his own natural sense of right and wrong.

To recur, then, to what has already been stated. In order that punishment may ope. rate by way of example, to deter others from committing criminal acts when under temptation to do so, by presenting a strong counteracting motive, the person tempted must have memory and intelligence to know that the act he is about to commit is wrong, to remember and understand, that if he commits the act he will be subject to the punishment, and reason and will to enable him to compare, and choose between the supposed advantage or gratification to be obtained by the criminal act, and the impunity from punishment which he will secure by abstaining from it.

A person, therefore, in order to be punishable by law, or in order that his punishment by law may operate as an example to deter others from committing criminal acts under like circumstances, must have sufficient memory, intelligence, reason, and will, to enable him to distinguish between right and wrong in regard to the particular act about to be done, to know and understand that it will be wrong, and that he will deserve punishment by committing it.

This is necessary on two grounds: 1st. To render it just and reasonable to inflict punishment on the accused individual, and 2d. To render his punishment by way of example, of any utility to deter others in like situations from doing similar acts, by hold. ing up a counteracting motive in the dread of punishment which they can feel and comprehend.

With more immediate reference to the case, the Chief Justice proceeded as follows: In order to constitute a crime, a man must have intelligence and capacity enough to have a criminal intent and purpose; and if his reason and mental powers are either so deficient that he has no will, no conscience, or controlling mental power, or if through the overwhelming violence of mental disease, his intellectual power is for the time obliterated, he is not a responsible moral agent, and is not punishable for criminal acts. But these are extremes easily distinguished, and not to be mistaken. The difficulty lies between these extremes in the case of partial insanity, where the mind may be clouded and weakened, but not incapable of remembering, reasoning, and judging, or so perverted by insane delusion, as to act under false impressions and influences. In these cases, the rule of law, as we understand it, is this: A man is not to be excused from responsibility if he has capacity and reason sufficient to enable him to distinguish between right and wrong as to the particular act he is then doing, a knowledge and consciousness that the act he is doing is wrong and criminal, and will subject him to punishment. In order to be responsible, he must have sufficient power of memory to recollect the relation in which he stands to others, and in which others stand to him; that the act he is doing is contrary to the plain dictates of justice and right, injurious to others, and a violation of the dictates of duty. On the contrary, although he may be labouring under partial insanity, if he still understands the nature and character of his act and its conse. quences; if he has a knowledge that it is wrong and criminal, and a mental power sufficient to apply that knowledge to his own case, and to know that if he does the act he will do wrong and receive punishment, such partial insanity is not sufficient to exempt him from responsibility for criminal acts. If, then, it is proved to the satisfaction of the jury, that the mind of the accused was in a diseased and unsound state, the question will be, whether the disease existed to so high a degree that for the time being it overwhelmed the reason, conscience, and judgment; and whether the prisoner committing the homicide acted from an irresistible and uncontrollable impulse; if so, then the act was not the act of a voluntary agent, but the involuntary act of the body without the concurrence of a mind directing it. The character of the mental disease relied upon to excuse the accused in this case, is partial insanity, consisting of melancholy, accompanied by delu. sion. The conduct may be in many respects regular, the mind acute, and the conduct apparently governed by rules of propriety, and at the same time there may be insane delusion, by which the mind is perverted. The most common in these cases is that of monomania, where the mind broods over one idea, and cannot be reasoned out of it. This may operate as an excuse for a criminal act in one of two modes. Either the delu. sion is such that the person under its influence has a real and firm belief of some fact, not true in itself, but which if it were true, would excuse his act; as where the belief is that the party killed had an immediate design upon his life, and under that belief the insane man killed him in supposed self-defence. A common instance is where he fully