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 that this partial insanity seems not to excuse them in the committing of any capital offence. And he says further, "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 and considered both by the 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 he concludes by saying, "the best measure I can think of is this: such a person as, laboring under melancholy distempers, hath yet ordinarily as great understanding as ordinarily a child of fourteen years hath, is such a person as may be guilty of treason or felony."(d)

In the case of Lord Ferrers, who was tried before the House of Lords for murder, it was proved that his lordship was occasionally insane, and incapable from his insanity of knowing what he did, or judging of the consequences of his actions. But the murder was deliberate; and it appeared that when he committed the crime he had capacity sufficient to form a design and know its consequences. It was urged, on the part of the prosecution, that complete possession of reason was unnecessary to warrant the judgment of the law, and that it was sufficient if the party had such *15] possession of reason as enabled him to comprehend the nature of his actions, and discriminate between moral good and evil. And he was found guilty and executed.(e)

In Arnold's case, who was tried for maliciously shooting at Lord Onslow, it appeared clearly that the prisoner was, to a certain extent, deranged, and that he had greatly misconceived the conduct of Lord Onslow; but it also appeared that he had formed a regular design, and prepared the proper means for carrying it into effect. Mr. J. Tracey told the jury, that where a person has committed a great offence, the exemption of insanity must be very clearly made out before it is allowed; that it is not every kind of idle and frantic humor of a man, or something unaccountable in his actions, which will show him to be such a madman as is to be (d) 1 Hale 30.

(e) Lord Ferrers' case, 19 St. Tri. (by Howell), 947.

general current of the decisions, though there are some few which hold that if on the whole evidence the jury have a reasonable doubt of the sanity of the prisoner he is entitled to an acquittal: Walter v. People, 32 N. Y. 147; Loeffner v. State, 10 Ohio (N. S.) 598; Fisher v. People, 23 I. 283; Bonfanti v. State, 3 Minn. 123; Comm. v. Heath, 11 Gray 303; State v. McCoy, 34 Mo. 531; Graham v. Comm., 16 B. Mon. 587; Chase v. People, 40 Ill. 352; O'Brien v. People, 48 Barb. 274; People v. Robinson, 1 Parker C. R. 649; State v. Lawrence, 57 Maine 574; Kriel v. Comm., 5 Bush 362; McFarland's case, 8 Abb. Pr. N. S. 57, 93; State v. Klinger, 43 Mo. 127; People v. Garbutt, 17 Mich. 9; Bonsall v. Comm., 20 Gratt. 860; State v. Hundley, 46 Mo. 414; State v. Huting, 21 Ibid. 464; People v. McCann, 16 N. Y. 58; Comm. v. Eddy, 7 Gray 583; Smith v. Comm., 1 Duvall 224; People v. Coffman, 24 Cal. 230; Hoppe v. People, 31 Ill. 385; People v. Myers, 20 Cal. 518; Polk v. State, 19 Ind. 170; State v. Bartlett, 43 N. H. 224; State v. Starling, 6 Jones (Law) 366; State v. Felter, 32 Iowa 49; McKenzie v. State, 42 Geo. 334.

In all cases where the act of a party is sought to be avoided on the ground of his mental imbecility, the proof of the fact lies upon him who alleges it, and until the contrary appears sanity is to be presumed. This is taken for granted in all the elementary writers, and in all the adjudged cases, both in law and equity. The rule has its qualifications; one of which is, that after a general derangement has been shown, it is then incumbent on the other side, to show that the party who did the act, was sane at the very time when the act was performed. To say that sanity is not to be presumed, until the contrary is proved, is to say that insanity or fatuity is the natural state of the human mind: Jackson v. Van Dusen, 5 Johns. 158-9. See the authorities quoted in this case by Van Ness, J., in delivering the opinion of the court.

Where previous insanity is shown, the burden of the proof is thrown on the party who seeks to establish an act as done in a lucid interval. But proof that the act done was in itself natural and rational will control evidence of habitual insanity: Griffin v. Griffin, Charlton 217. Where a prisoner was tried for murder four months after the crime was alleged to have been committed, held, that it was competent for the prisoner to prove by professional witnesses that he was insane at the time of the trial, with a view to establish the defence of insanity when the act was done: Freeman v. People, 4 Denio 9.

exempted from punishment; but that where a man is totally deprived of his understanding and memory, and does not know what he is doing, any more than an infant, a brute, or a wild beast, he will properly be exempted from justice or the punishment of the law. (ƒ)

In Parker's case, who was indicted for aiding the King's enemies, by entering into the French service in time of war between France and this country, the defence was rested upon the ground of insanity; and a witness on his behalf stated, that his general character from a child was that of a person of very weak intellect; so weak that it excited surprise in the neighborhood when he was accepted for a soldier. But the evidence for the prosecution had shown the act to have been done with considerable deliberation and possession of reason; and that the prisoner, who was a marine, having been captured by the French and carried into the Isle of France, after a confinement of about six weeks, entered voluntarily into the French service, and stated to a captive comrade that it was much more agreeable to be at liberty and have plenty of money than remain confined in a dungeon. The Attorney-General replied to this defence of insanity, that before it could have any weight in rebutting a charge so clearly made out, the jury must be properly satisfied that at the time when the crime was committed the prisoner did not really know right from wrong. And the jury, after hearing the evidence summed up, without hesitation pronounced the prisoner guilty.(g)

T. Bowler was tried on the 2d July 1812, for wounding William Burrowes. The defence set up for the prisoner was, insanity occasioned by epilepsy; and it was deposed, by the prisoner's housekeeper, that he was seized with an epileptic fit on the 9th July 1811, and was brought home apparently lifeless, since which time she had perceived a great alteration in his conduct and demeanor; that he would frequently rise at nine o'clock in the morning, eat his meat almost raw, and lie on the grass exposed to the rain; and that his spirits were so dejected that it was necessary to watch him, lest he should destroy himself. The keeper of a lunatic asylum, deposed, that it was *characteristic of insanity occasioned by [*16. epilepsy for the patient to imbibe violent antipathies against particular individuals, even his dearest friends, and to have a desire of taking vengeance upon them from causes wholly imaginary, which no persuasion could remove, and that yet the patient might be rational and collected upon every other subject. He had. no doubt of the insanity of the prisoner, and said he could not be deceived by assumed appearances. A commission of lunacy was also produced, dated the 17th of June 1812, and an inquisition taken upon it, whereby the prisoner was found insane, and to have been so from the 30th of March last.(h) Mr. J. Le Blanc told the jury, that it was for them to determine whether the prisoner, when he committed the offence with which he stood charged, was incapable of distinguishing right from wrong, or under the influence of any illusion in respect of the prosecutor which rendered his mind at the moment insensible of the nature of the act he was about to commit: since in that case he would not be legally responsible for his conduct. On the other hand, provided they should be of opinion that when he committed the offence he was capable of distinguishing right from wrong, and not under the influence of such an allusion as disabled him from discerning that he was doing a wrong act, he would be amenable to the justice of his country, and guilty in the eye of the law. The jury, after considerable deliberation, pronounced the prisoner guilty.()

In Bellingham's case, who was tried for the murder of Mr. Perceval, a part of the prisoner's defence was insanity; and upon this part of the case, Mansfield, C. J.. stated to the jury, that in order to support such a defence it ought to be proved by the most distinct and unquestionable evidence that the prisoner was incapable

(ƒ) Arnold's case, MS; Collison on Lunacy 475; 8 St. Tr. 317; 16 St. Tr. (by Howell), 764, 765. The jury found the prisoner guilty; but at Lord Onslow's request he was reprieved.

(g, Parker's case, 1812, Collis. 477.

hy The report in Collison 673, does not state the day on which the prisoner shot at W. Burrowes.

(1) Bowler's case, Collis. 673, in the note.

of judging between right and wrong; that in fact it must be proved beyond all doubt, that at the time he committed the atrocious act with which he stood charged, he did not consider that murder was a crime against the laws of God and nature; and that there was no other proof of insanity which would excuse murder, or any other crime. That in the species of madness called lunacy, where persons are subject to temporary paroxysms, in which they are guilty of acts of extravagance, such persons committing crimes when they are not affected by the malady would be, to all intents and purposes, amenable to justice; and that so long as they could distinguish good from evil they would be answerable for their conduct. And that in the species of insanity in which the patient fancies the existence of injury, and seeks an opportunity of gratifying revenge by some hostile act, if such a person be capable in other respects of distinguishing right from wrong, there would be no excuse for any act of atrocity which he might commit under this description of derangement.(k)

So where on an indictment for murder, it appeared that the prisoner labored under a notion that the inhabitants of Hadleigh, *and particularly the de*17] ceased, were continually issuing warrants against him with intent to deprive him of his liberty and life, the great judge who tried the case told the jury that they must be satisfied, before they could acquit the prisoner on the ground of insanity, that he did not know, when he committed the act, what the effect of it, if fatal, would be, with reference to the crime of murder. The question was, did he know that he was committing an offence against the laws of God and nature?" and his lordship expressed his complete accordance in the observations of C. J. Mansfield in the last case.()

On the trial of Oxford for shooting at the Queen, Lord Denman, C. J., told the jury, "Persons prima facie must be taken to be of sound mind till the contrary is shown. But a person may commit a criminal act, and not be responsible. If some controlling disease was, in truth, the acting power within him which he could not resist, then he will not be responsible. It is not more important than difficult to lay down the rule by which you are to be governed." "On the part of the defence, it is contended that the prisoner was non compos mentis, that is (as it has been said), unable to distinguish right from wrong, or, in other words that from the effect of a diseased mind he did not know at the time that the act he did was wrong." Something has been said about the power to contract and make a will; but I think that those things do not supply any test. The question is, whether the prisoner was laboring under that species of insanity which satisfies you 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?" (m)

66

J. Hadfield was tried in the Court of King's Bench, in 1800, for high treason, in shooting at the King, in Drury Lane Theatre; and the defence was insanity. He had been a private soldier in a dragoon regiment, and in 1793 received many severe wounds in battle near Lisle, which had caused partial derangement of mind, and he had been dismissed from the army on account of insanity. Since his return to this country he had been annually out of his mind from the beginning of spring to the end of the dog-days, and had been under confinement as a lunatic. When affected by his disorder, he imagined himself to hold intercouse with God; sometimes called himself God, or Jesus Christ, and used other expressions of the most irreligious and blasphemous kind; and also committed acts of the greatest extravagance; but at other times he appeared to be rational, and discovered no symptom of mental incapacity or disorder. On the 11th of May preceding his commission

(k) Bellingham's case, Old Bailey, 15th May 1812, Collis. Addend. 636. "I will not refer to Bellingham's case, as there are some doubts as to the mode in which that case was conducted." Per Sir J. Campbell, Atty.-Gen., in Reg. v. Oxford, 9 C. & P. 533 (38 E. C. L. R.).

(1) Rex v. Offord, 5 C. & P. 168 (24 E. C. L. R.), Lord Lyndhurst, C. B.

(m) Reg. v. Oxford, 9 C. & P. 525 (38 E. C. L. R.), Lord Denman, C. J., Alderson, B., and Patteson, J.

of the act in question, his mind was very much disordered, and he used many blasphemous expressions. At one or two o'clock on the following morning, he suddenly jumped out of bed, and alluding to his child, a boy of eight months old, of whom he was usually remarkably fond, said he was about to *dash his brains out [*18 against the bed-post, and that God had ordered him to do so, and upon his wife screaming, and his friends coming in, he ran into a cupboard and declared he would lie there, it should be his bed, and God had said so; and when doing this, having overset some water, he said he had lost a great deal of blood. On the same and the following day, he used many incoherent and blasphemous expressions. On the morning of the 15th of May he seemed worse, said that he had seen God in the night, that the coach was waiting, and that he had been to dine with the King. He spoke very highly of the King, the royal family, and particularly of the Duke of York. He then went to his master's workshop, whence he returned to dinner at two, but said that he stood in no need of meat, and could live without it. He asked for tea between three and four o'clock, and talked of being made a member of the society of odd fellows; and, after repeating his irreligious. expressions, went out and repaired to the theatre. On the part of the Crown, it was proved that he had sat in his place in the theatre nearly three-quarters of an hour before the King entered; that at the moment when the audience rose, on His Majesty's entering his box, he got up above the rest, and presenting a pistol loaded with slugs, fired it at the King's person, and then let it drop; and when he fired his situation appeared favorable for taking aim, for he was standing upon the second seat from the orchestra in the pit; and he took a deliberate aim, by looking down the barrel, as a man usually does when taking aim. On his apprehension, amongst other expressions. he said that "he knew perfectly well his life was forfeited; that he was tired of life, and regretted nothing but the fate of a woman who was his wife, and would be his wife a few days longer, he supposed." These words he spoke calmly, and without any apparent derangement; and with equal calmness repeated that he was tired of life, and said that "his plan was to get rid of it by other means he did not intend anything against the life of the King; he knew the attempt only would answer his purpose.' The counsel for the prisoner (n) in his very able address to the jury, put the case as one of a species of insanity in the nature of a morbid delusion of the intellect, and admitted that it was necessary for them to be satisfied that the act in question was the immediate unqualified offspring of the disease. And Lord Kenyon held that as the prisoner was deranged immediately before the offence was committed, it was improbable that he had recovered his senses in the interim; and although, were they to run into nicety, proof might be demanded of his insanity at the precise moment when the act was committed; yet, there being no reason for believing him to have been at that period a rational and accountable being, he ought to be acquitted. (0)

On an indictment for the murder of Mr. Drummond, the defence was insanity, and the medical evidence was that persons of otherwise sound mind might be affected with morbid delusions; that the prisoner was in that condition; that a person laboring under *a morbid delusion might have a moral perception of [*19 right and wrong; but that, in the case of the prisoner, it was a delusion which carried him away beyond the power of his own control, and left him no such perception; and that he was not capable of exercising any control over acts which had a connection with his delusion; that it was the nature of his disease to go on gradually until it had reached a climax, when it burst forth with irresistible intensity; that a man might go on for years quietly, though at the same time under its influence, but would at once break out into the most extravagant and violent paroxysms Tiudal, C. J., told the jury, "The question to be determined is, whether, at the time the act in question was committed, the prisoner had or had not the use of his understanding so as to know that he was doing a wrong or wicked act. If the jury should be of opinion that the prisoner was not sensible at

(n) The late Lord Erskine, then at the bar.

(o) Hadfield's case, Collis. 480. The verdict was Not Guilty, on the ground of insanity.

VOL. 1.-2

the time he committed the act that he was violating both the laws of God and man,(p) then he would be entitled to a verdict in his favor; but if, on the contrary, they were of opinion that, when he committed the act, he was in a sound state of mind,(q) then their verdict must be against him."(r)

The acquittal in the preceding case, on the ground of insanity, gave rise to a discussion in the House of Lords, and the following questions were put to the judges, and answered by them all, except Mr. Justice Maule, as follows, in June, 1843

Q. I. "What is the law respecting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons; as, for instance, where, 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 revenging some supposed grievance or injury, or of producing some supposed public benefit?"

A. I. "Assuming that your lordships' inquiries are confined to those persons who labor under such partial delusions only, and are not in other respects insane, 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 revenging 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 to mean the law of the land."

6.

Q. II. What are the proper questions to be submitted to the jury where a person alleged to be afflicted 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. III. 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. II. and III. “As these two questions appear to us to be more conveniently *20] 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 to be 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 laboring 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. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused at the time of doing the act knew the difference between right and wrong; which mode, though rarely, if ever, leading to any mistake with the jury. is not, as we conceive, so accurate when put generally and in the abstract, as when put with reference to the party's knowledge of right and wrong, in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction: whereas, the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one that he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course, therefore, has been to leave the question to the jury, whether the accused had a sufficient degree of reason to know that he was doing an act that was wrong; and this course we think is correct, accompanied with such observations and explanations as the circumstances of each particular case may require."

(p) Quare, whether this position was not too favorable for the prisoner, as it required the jury to be satisfied that the prisoner was aware both of the laws of God and man? (q) Quære, this position also, as a man may not have a perfectly sound mind, and yet be criminally responsible?

(r) Reg. v. M'Naghten, 10 Cl. & F. 200.