that sense.

the country. He became much excited, and assumed a wild demoniacal aspect. I am satisfied that aspect was not simulated." On cross-examination he said, "I have no doubt he knows that these opinions of his are contrary to those generally entertained, and that, if acted upon, they would subject him to punishment. I should think that he would know that killing a person was contrary to law, and wrong in I should think, from his saying he should be hanged, that he knew he had done wrong. His moral sense was more vitiated than I ever found that of any other human being. His opinions were pretty much those of atheists, but he was beyond atheism. He seemed incapable of reasoning correctly on any moral subject. He denied the existence of a God and of a future world. He said it was a matter of perfect indifference whether he was dead or alive." Martin, B., told the jury, "What the law meant by an insane man was, a man who acted under delusions, and supposed a state of things to exist which did not exist, and acted thereupon. A man who did so was under a delusion, and a person so laboring was insane. In one species of insanity the patient lost his mind altogether, and had nothing but instinct left. Such a person would destroy his fellow-creatures, as a tiger did his prey, by instinct only. A man in that state had no mind at all, and therefore was not criminally responsible. The law, however, went farther than that. If a man laboring under a delusion did something of which he did not know the real character-something of the effect and consequences of which he was ignorant-he was not responsible. An ordinary instance of such delusion was where a man fancied himself a king, and treated all around him as his subjects. If such a man were to kill another under the supposition that he was exercising his prerogative as a king, and that he was called upon to execute the other as a criminal, he would not be responsible. The result was, that if the jury believed that at the time the act was committed the prisoner was laboring under a delusion, and believed that he was doing an act that was not wrong, or of which he did not know the consequences, he would be excused. If, on the other hand, he well knew that his act would take away life-that that act was contrary to the law of God, and punishable by the law of the land-he was guilty of murder. In his opinion the law was best laid down by Le Blanc, J., in Bowler's case [supra], who told the jury that it was for them to determine whether the prisoner, when he committed the offence, was incapable of distinguishing right from wrong, or under the influence of any illusion 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 act he was capable of distinguishing right from wrong, and not under the influence of such an illusion as disabled him from discerning that he was doing a wrong act, he would be amenable to justice." After noticing other cases, Martin, B., told the jury that "they must judge of the act by the prisoner's statements and by what he did at the time. Unless they were satisfied-and it was for the prisoner to make it out-that he did not know the consequences of his act, or that it was against the law of God and man, and would subject him to punishment, he was guilty of murder. The prisoner's letters appeared to be as sensible letters as ever he had read. Again, the reason the prisoner gave for his act was, 'She should not have proved false to me.' Now, if his real motive was that he conceived himself to have been ill-used, and either from jealousy of the man who was preferred to him, or from a desire of revenge upon her, committed the act, that would be murder. Those were the very passions which the law required men to control; and if the deed was done under the influence of those passions, there was no doubt it was murder. The prisoner's expression, that he should be hanged for it, indicated that he knew the consequences of his act. Another reason he gave for what he had done was, 'The woman who deceives me must die.' If a young lady promised to marry a man, and then changed her mind, it might be truly said that she deceived him; but what would be the consequences to society if men were to say every woman who treated them in that way should die, and were to carry out those views by cutting their throats? The prisoner claimed to exercise the same power over a wife as he could lawfully exercise over a chattel; but that was not a delusion, nor like a delusion. It was the conclusion

of a man, who had arrived at results different from those generally arrived at, and contrary to the laws of God and man; but it was not a delusion." "It had been said by one of the witnesses that the prisoner did not know the difference between good and evil. If that was a test of insanity, many men were tried who did not know that difference. In truth, it was no test at all. The idea of a conspiracy was a delusion, but the mere setting himself up against the law of God and man was not a delusion at all. The question for the jury was, was the prisoner insane, and did he do the act under a delusion, believing it to be other than it was? If he knew what he was doing, and that it was likely to cause death, and was contrary to the law of God and man, and that the law directed that persons who did such acts should be punished, he was guilty of murder."(xx)

On an indictment for murder, the prisoner appeared to have been on the most intimate terms with the "unfortunate woman " he had killed. No motive was assigned for the murder. The prisoner having seduced a young woman under a promise of marriage, *which he had been unable to fulfil, his reason had been [*25 much affected by it. Bramwell, B., read the opinion of the judges in the House of Lords to the jury, and then said, "It has been urged that you should acquit the prisoner on the ground that, it being impossible to assign any motive for the perpetration of the offence, he must have been acting under what is called powerful and irresistible influence, or homicidal tendency. But the circumstance of an act being apparently motiveless, is not a ground from which you can safely infer the existence of such an influence. Motives exist unknown and innumerable, which might prompt the act. A morbid and restless, but irresistible, thirst for blood, would itself be a motive urging to such a deed for its own relief. But if an influence be so powerful as to be termed irresistible, so much the more reason is there why we should not withdraw any of the safeguards tending to counteract it. There are three powerful restraints existing, all tending to the assistance of the person who is suffering under such an influence-the restraint of religion, the restraint of conscience, and the restraint of law. But if the influence itself be held a legal excuse, rendering the crime dispunishable, you at once withdraw a most powerful restraint that forbidding and punishing its perpetration. We must return, therefore, to the simple question you have to determine--did the prisoner know the nature of the act he was doing, and did he know that he was doing what was wrong."(x)

On a trial for murder, it appeared that the prisoner and his wife were walking along a road, and he had been for some time chiding her, and then he fired a pistol at her and she fell; and he pulled her up, and they proceeded a few yards, when he pushed her down, and inflicted a second wound on her throat with a knife. He then got over a hedge into a field, and ran some distance, until he was overtaken by a person who had seen the woman fall. The prisoner wiped the blood off his hands, saying he had met with a misfortune and cut his finger. He would not tell what he had done with the pistol and knife, but said, "I did it. I intended to do it, and that will put an end to it. I have been unhappy since Christmas." At the time he shot and cut his wife, he must have known that persons were within a short distance, having just before met them. The prisoner had threatened to murder his wife before, and on the day before he was heard sharpening a knife, and the wife was afterwards seen running out of the house, followed by the prisoner with a knife similar to one found near the place where the murder was committed. The prisoner had been in gaol for debt for two months in the early part of the year, and had been unfortunate in building speculations. Several witnesses were called for the prisoner, who stated that they believed that the prisoner was not in his right mind, and proved sundry statements made by him as to his property and other matters, which were alleged to be delusions, and that his conduct had been strange, and his manner greatly excited. For the prosecution, witnesses were called to prove that he was sane, and had acted in matters of business in a rational manner. Rolfe, B., told the jury that "insanity was the

(xx) Reg v. Townley, 3 F. & F. 839.

(z) Reg. v. Haynes, 1 F. & F. 666; Reg. v. Brough, 2 F. & F. 838, note, s. P.

most difficult question which could engage the attention of any tribunal. *26] It was difficult to define it in words, or even in idea. The opinion of the judges was taken by the House of Lords a few years back, as to what was to constitute a definition of insanity, and it created very great difficulty, but after great and anxious deliberation, they came to the conclusion that the old description was the best, viz. that insanity should constitute a defence only when a party was in such a state of mind arising from disease as to be incapable of deciding between right and wrong; but that this definition was imperfect, as all definitions must be, and would require to be modified with reference to each particular case. Applying that law to the present case, what the jury had to consider was, whether the evidence was such as to satisfy them that at the time the act was committed by the prisoner, he was incapable of understanding right from wrong, as that he could not appreciate the nature of the act he was committing. Perhaps it would be going too far to say that a party was responsible in every case where he had a glimmering knowledge of what was right and wrong. In cases of this description, there was one cardinal rule which should never be departed from, viz. the burden of proving innocence rested on the accused. Every man committing an outrage on the person or property of another, must be, in the first instance, taken to be a responsible being. Such a presumption was necessary for the security of mankind. A man going about the world, marrying, dealing, and acting as if he were sane, must be presumed to be sane till he proves the contrary. The question, therefore, would be, not whether the prisoner was of sound mind, but whether he had made out to their satisfaction that he was not of sound mind. They might arrive at the conclusion, from the nature of his conduct and acts up to the time of the act in question, or shortly preceding it, that he was insane; though he was not capable of proving it by positive testimony, as such was the nature of the mind, that it might be one minute sane and the next insane, and therefore it might be impossible for a party to give positive evidence of its condition at the particular moment in question. The conclusion seemed irresistible, that the prisoner was to some extent laboring under a delusion, but he was not exempt from responsibility because he was laboring under a delusion as to his property, unless that had the effect of making him incapable of understanding the wickedness of murdering his wife. But when that was the question they had to consider, he could not say that it was altogether immaterial that he was insane on one point only.(y) Indeed his insanity on that point might guide them to a conclusion as to his sanity on the point involved in this case, and, in this view of the matter, there were two circumstances in the evidence of great importance: these were, the want of motive for the commission of the crime, and its being committed under circumstances which rendered detection inevitable. They could come to no other conclusion than that the prisoner had taken away the life of his wife, and that this was murder, unless he had satisfied them that he was not capable at the time of appreciating his acts."(z) *On a trial for murder the prisoner was acquitted, but a question was re*27] served as to whether the evidence of a medical man was properly admitted. He volunteered his evidence, and wished to give his opinion upon the evidence as to the state of the prisoner's mind at the time the act was done; and he was allowed so to do. The judges did not come to any formal resolution; but they all thought that in such a case a witness of medical skill might be asked, whether in his judgment such and such appearances were symptoms of insanity, and whether a long fast, followed by a draught of strong liquor, was likely to produce a paroxysm of the disorder in a person subject to it? and that by such questions the effect of his testimony might be got in an unexceptionable manner. Several of the judges doubted whether the witness could be asked on the very point which the jury were to decide, viz., whether, from the testimony given in the case, the act with which the prisoner was charged was, in his opinion, an act of insanity?(a) In a case of maliciously wounding, where it was proposed to call a physician who had (y) Quære, omit "only," which seems inconsistent with the context.

(z) Reg. v. Layton, 4 Cox C. C. 149, Summer, 1849; Reg. v. Law, 2. F. & F. 836, s. p (a) Rex v. Wright, R. & R. 456.

heard the whole evidence, to give his opinion as to the insanity of the prisoner, Park, J. J. A., after referring to the preceding case, allowed the physician to be asked whether the facts and appearances proved showed symptoms of insanity (b) Where the defence to an indictment for murder was that the prisoner was insane at the time he committed the act, and witnesses were called to prove that insanity had existed in many members of the prisoner's family, and that he had been insane for three years, a physician, who had been in court during the whole trial, was asked by the counsel for the prosecution "whether, from all the evidence he had heard, both for the prosecution and defence, he was of opinion that the prisoner, at the time he did the act, was of unsound mind?" and the opinion of the judges in answer to the fifth question(c) was cited in support of the question; Alderson, B., and Cresswell, J., held that the question ought not to be put. The proper mode is to ask what are the symptoms of insanity, or to take particular facts, and assuming them to be true, to ask whether they indicate insanity. To take the course suggested is really to substitute the witness for the jury, and allow him to decide upon the whole case. The jury have the facts before them, and they alone must interpret them by the general opinions of scientific men.(d)

So on the trial of an ejectment where the question turned on the sanity of the testator, and a physician was asked whether in his opinion, from the facts proved in evidence, the testator was sane or insane; Lord Campbell, C. J., said the witness might give general scientific evidence on the causes and symptoms of insanity, but he must not express an opinion as to the result of the evidence he had heard with reference to the sanity or insanity of the testator; his lordship saying peremptorily that he would not allow a physician to be substituted for a jury.(e)1 Where the defence of insanity has been set up it has been the *common [*28 practice to prove that other members of the prisoner's family have been afflicted with insanity; but it is a matter of fact that insanity is often hereditary in a family, and therefore that fact should be proved, in the first instance, by the testimony of medical men, and then the inquiry whether another member of the prisoner's family has been insane will be legitimate.(ƒ)

Where, in support of a defence of insanity the prisoner's counsel attempted to quote fromCooper's Surgery," the author's opinions on the subject, in his address to the jury, on the ground that they were the sentiments of one who had studied the subject, and submitted that it was admissible in the same way as opinions of scientific men on matters appertaining to foreign law; Alderson, B., said: "I should not allow you to read a work on foreign law. Any person who was properly conversant with it might be examined; but then he adds his own.

(b) Rex v. Searle, 1 M. & Rod. 75, 1831.

(c) Supra, p. 21.

(d) Reg. v. Frances, 4 Cox C. C. 57; s. p. Reg. v. Burton, 3 F. & F. 772.

(e) Doe d. Bainbrigge v. Bainbrigge, 4 Cox C. C. 454. The verdict was for the plaintiff, which prevented this ruling from being questioned in the Court above. (f) Reg. v. Tucket, 1 Cox C. C. 103, Maule, J.

1 The admissibility of opinions upon questions of insanity has been the subject of frequent consideration and discussion. As to witnesses who are not medical experts, the general current is in favor of permitting them to express their opinion, but it must be accompanied with the facts upon which it is founded. In some cases, however, it has been rigidly excluded: Florey v. Florey, 24 Ala. 241; Choice v. State, 31 Geo. 424; Real . People, 42 N. Y. 270; Real v. People, 55 Barb. 551, 579; 8 Abb. Pr. N. S. 314; Comm. . Wilson, 1 Gray 337; Powell v. State, 25 Ala. 21; O'Brien v. People, 48 Barb. 275; Wyman v. Gould, 47 Maine 159; Cram v. Cram, 33 Verm. 15; Comm. v. Fairbanks, 2 Allen 511; Gehrke v. State, 13 Texas 568; Stewart v. Spedder, 5 Md. 433. As to medical experts. they may state their opinion upon the whole evidence if they have heard it all, or upon a hypothetical statement which is in conformity with the whole evidence: Reed v. People, 1 Parker C. R. 481; Lake v. People, Ibid. 495; People v. Lake, 2 Kernan 358; People. Thurston, 2 Parker C. R. 49; Negro Jerry v. Townsend, 9 Md. 145; Sanches v. People, 22 N. Y. 147; Champ v. Comm., 2 Met. (Ky.) 17; State v. Reddick, 7 Kansas 143; People r. M Cann, 3 Parker C. R 272.

* State v. Windsor, 5 Harring. 512; Baxter v. Abbott, 7 Gray 71; People v. Garbutt, 17 Mich. 9; State v. Felter, 25 Iowa 67; Cole's Trial, 7 Abb. Pr. N. S. 321; Bradley v. State, 31 Ind. 492; State v. Christmas, 6 Jones (Law) 471; Newcomb v. State, 7 Miss. 383; People r. Smith, 31 Cal. 466.

personal knowledge and experience to the information he may have obtained from books. We must have the evidence of individuals, not their written opinions. You surely cannot contend that you may give the book in evidence, and if not, what right have you to quote from it in your address, and do that indirectly which you would not be permitted to do in the ordinary course?" And on its being

said that it was certainly done in M'Naghten's case, Alderson, B., added, " And that shows still more strongly the necessity for a stringent adherance to the rules laid down for our observance. But for the non-interposition of the judge in that case, you would not probably have thought it necessary to make this struggle now."(g)1

The application of the rules and principles laid down in these cases to each particular case as it may arise, will necessarily in many instances be attended with difficulty; more especially with regard to the true interpretation of the expressions, which state that the prisoner, in order to be a proper subject of exemption from punishment on the ground of insanity, should appear to have been unable to distinguish right from wrong," or to discern "that he was doing a wrong act,” or should appear to have been "totally deprived of his understanding and memory;" as even in Hadfield's case his expressions when apprehended, that "he was tired of life," that "he wanted to get rid of it," and that "he did not intend anything against the life of the King, but knew that the attempt only would answer his purpose;" seem to show that he must have been aware that he was doing a wrong act, though the degree of its criminality might have been but imperfectly presented to him, through the morbid delusion by which his senses and understanding were affected. But it is clear that idle and frantic humors, actions occasionally unaccountable and extraordinary, mere dejection of spirits, or even such insanity as will sustain a commission of lunacy, will not be sufficient to exempt a person from punishment who has committed a criminal act. And it seems that though if there be a total permanent want of reason, or if there be a total temporary want of it when the offence was committed, the prisoner will be entitled to an acquittal; yet, if there be a partial degree of reason, a competent use of it, sufficient to *29] have restrained those passions which produced the crime; if there be thought and design, a faculty to distinguish the nature of actions, to discern the difference between moral good and evil; then, upon the fact of the offence proved the judgment of the law must take place.(h)

In Allison's Principles of the Criminal Law of Scotland,(i) and there is no difference between the law of England and the law of Scotland with reference to insanity, it is said, that "to amount to a complete bar of punishment, either at the time of committing the offence, or of the trial, 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 the knowledge that he was doing wrong in committing it. If, though somewhat deranged, he is able to distinguish right from wrong, in his own case, and to know that he was doing wrong in the act which he committed, he is liable to the full punishment of his criminal acts."(k)

If a man in his sound memory commits a capital offence, and before arraignment for it he becomes mad, he ought not to be arraigned for it, because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner become mad, he shall not be tried, as he cannot make his defence. If, after he is tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if after judgment he becomes of nonsane (g) Reg. v. Crouch, 1 Cox C. C. 94.

(h) Per Yorke, Sol.-Gen., in Lord Ferrers' case, 19 Howell's St. Tri. 947, 948, et per Lawrence, J.; Rex v. Allen, Stafford Lent Assizes, 1807, MS. And see Lord Thurlow's judgment in the Attorney-General v. Parnther, 3 Br. Cha. Ca. 441.

(i) P. 654.

(k) Cited by Sir J. Campbell, Attorney-General, in Reg. v. Oxford, 9 C. & P. 532 (38 E. C. L. R.).

1 State v. O'Brien, 7 R. I. 336. When the defence is insanity, neither books of established reputation nor statistics of the increase of insanity can be read to the jury: Commonwealth v. Wilson, 1 Gray 337; Melvin v. Earley, 1 Jones (Law) 386.