real. For example, if, under the influence of 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 selfdefence, 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 punishment."1

11. These Answers considered - Objections.-This authoritative statement of the law has been over and over again discussed, and its wisdom repeatedly questioned. Innumerable members of the medical profession have found fault with these answers, and have given their reasons for regarding the Judges who had to do with them as possibly upright but undoubtedly foolish. One of the ablest of these has distinctly said: "With regard to this test, I may say, and most emphatically, that it is utterly untrustworthy, because untrue to the obvious facts of Nature."" It is, therefore, necessary to consider whether these tests are unsatisfactory, and we shall do so in the order of their importance, and consider the third first-Can the knowledge of the nature and quality of the act, or the knowledge of the rightness or wrongness of the act, at the time of its commission, be regarded as a satisfactory test of responsibility? The medical men who assert the foolishness of the Judges hold that it cannot. Their arguments are somewhat curious. It is asserted, with perfect truth, that sanity passes into insanity, and insanity into sanity, as gradually as night passes into day, or day into night-that, therefore, it is impossible to draw a line between these two conditions; and from these statements they draw the inference that any test of insanity, as it is not founded upon nature, must be absurd. With reference to this argument, we may be allowed to quote some words which we have written in answer to it in another place:

1 Car. & K. 134; 8 Scott N. R. 595.

* See Dr. Maudsley's "Responsibility in Mental Disease," p. 98. London: 1874. Dr. Russell Reynolds, "On the Scientific Value of the Legal Tests of Insanity," p. 34. London: 1872. He is followed, or rather was preceded, in this view by Dr. Ray, in his "Medical Jurisprudence of Insanity," and by many others.

Mr. Carlyle has well said, "Every stupid man, every cowardly man, and every foolish man, is but a less palpable madman."

"Just as there is a necessity for distinguishing between day and night, so is there a necessity to distinguish sanity from insanity. It is not proposed to treat all sane men who commit crimes in the way that we treat insane men acting in the same way, nor is it proposed to treat insane criminals as we at present treat sane criminals. We are not going to make our gaols asylums, nor our asylums gaols. Hence the necessity that there is for distinguishing between those who are mentally sane and those who are mentally insane. But again stupidity passes into intelligence by as imperceptible degrees as those which constitute the progress of health to disease. Men grow in stature with God slowly. A man is not a fool to-day and a sage to-morrow. The growth of intelligence is as gradual as the growth of the body; and as the management of property and affairs presupposes the possession of intelligence, the law to protect men from themselves found it expedient to say that unless a man had intelligence he should not have complete power over his property, and it consequently became necessary to draw a line between childhood and manhood, and the law did so, saying that a man shall come of age when he is twenty-one years of age. The scientific value of this test of intelligence is evidently very small. It cannot be said that a man is really able to enter into an intelligent bargain to-day which he would have been unable to enter into yesterday. Besides, some men have more intelligence at seventeen than others have at forty-five. The absolute necessity for some such rule, however, and the impossibility of devising one more in harmony with the facts of human development, are sufficient reasons for this rough test of mental power." So it is evident that there must be a rough test of sanity or insanity, or of capacity and incapacity. But surely the real position of these medical men is proveably ridiculous. Is it easier to draw a line of demarcation between guilt and innocence than between health and disease? That, too, like sanity and insanity, is the work of Nature. Guilt passes by imperceptible gradations into innocence-no one can mark the boundary; but is that a reason for asserting that no legal distinction should be made? Is

Responsibility and Disease. London: 1872. Pp. 14, 15.

not guilt a result of organism just as much as insanity? and if it is rational to treat criminals punitively for their acts, is it not also rational to distinguish between those who are free agents, those who can be deterred by a certainty of punishment, from those who have no freedom, and who would not be deterred from the commission of crime by being persuaded that punishment would inevitably follow the offence? It is scarcely to be seriously argued that there should be no test of insanity-that each case should be decided on its own merits; and it is an interesting psychological fact to note that it has actually been done by men of unquestionable ability. A test being necessary, is the knowledge of right and wrong a satisfactory test? We think that it is. Some writers have argued that the test of right and wrong is not enough, and that the defence of insanity should be sustained when there is an insane delusion from which the crime emanates, and also that it should be allowed when, being insane, the defendant is forced to act by an irresistible impulse.1

% 12. The Test in relation to Monomania.-Now, we hold that the test of insanity proposed by the Judges is sufficient in all cases to discover the punishability of a criminal who labors under mental disease; and in stating this, we reaffirm the position which has been almost invariably taken up by courts of law. As a preliminary, it may be admitted that there is such a disease as monomania-a disease during the continuance of which a man is sane with reference to one subject, and insane with reference to another. Medical

Wharton's Mental Unsoundness and Psychological Law, § 120. Philadelphia: 1873. Dr. Reynold's Tests of Insanity, p. 38.

* Rex v. Offord, 5 Car. & P. 168; Reg. v. Higginson, 1 Car. & K. 129; Reg. v. Stokes, 3 Car. & K. 185; Reg. v. Layton, 4 Cox, 149; and Reg. v. Edmunds, "Times," 17th Jan., 1872. See also Reg. v. Watson, "Times," 13th Jan., 1872; Reg. v. Oxford, 9 Car. & P. 525; Reg. v. Macnaghten, 10 Cl. & Fin. 200; 8 Scott N. R. 595; 1 Car. & K. 130; The Lord Advocate v. Brown, (High Court,) 8th Jan. 1866; 5 Irvine, 215; The Lord Advocate v. Gibson, (High Court,) 23d Dec., 1844; 2 Broun, 332; The Lord Advocate v. Bryce, (High Court,) 30th May, 1864; 4 Irvine, 506; The Lord Advocate v. Milne, (High Court,) Feb. 9, 1863; 4 Irvine, 301, at p. 313; Com. v. Rogers, 7 Metc. 500; Pam. Rep. by Bigelow & Bemis, p. 273; Com. e. Heath, 11 Gray, 303; Freeman v. People, 4 Denio, 1; State v. Spencer, 1 Zabriskie, 196; State v. Gardiner, Wright's Ohio Rep. 392; Com, v. Farkin, 3 Penn. L. J. 482; 2 Penn. L. J. Repts. 208; Vance v. Com. 2 Va. Cas. 132; McAllister v. State, 17 Ala. 434; U. S. v. Shults, 6 McLean. 121; People v. Sprague, 2 Parker, C. R. 43; State v. Hunting, 21 Mo. 464; People v. Coffman, 24 Cal. 230; State v. Lawrence, 57 Me. 574.

men have recognized this disease, and, as we shall hereafter see, the courts of law have acknowledged its existence, and had regard to its symptoms in many of their decisions. But even ordinary, practical people, who know nothing about medicine and less about law, have become familiar with this disease. They know that men have delusions with regard to particular things or persons or events, while in relation to every other subject they are rational and sane. The existence of such words as "kleptomania," "pyromania," "homicidal mania," in the nomenclature of insanity, shows that the separateness of diseases in relation to these manifestations in act has long been recognized. Its existence cannot be doubted, and it is certain that a man is never wholly and with regard to any subject utterly and always insane. Now, the argument against the right and wrong test of insanity is, that many of the insane who are admittedly insane know right from wrong, and that therefore it cannot be a test of insanity. If it were a test of insanity that was required, the argument would have some weight, but as it is only a test of legal insanity or responsibility which is wanted, it is quite beside the question. But in relation to this monomania to which we have alluded, may we not say that it is exactly what we should expect to find, and that instead of requiring another test in relation to delusions, the right and wrong test seems peculiarly applicable to this disease. Should we not expect to find a man knowing right from wrong in relation to every subject upon which he was sane, and yet unable to appreciate the distinction in relation to conduct which was dictated by his insane belief? Can that be said to be any reason why the knowledge of right and wrong should not be the test of insanity? Does not the existence of the moral sense in all lunatics-does not the fact that they know right from wrong-does not the fact that order and discipline in hospitals for the insane are established and maintained by means of rewards and punishments, prove that lunatics are in relation to many of their acts sane, and governed by the same motives which influence the actions of sane men? If a monomaniac speaks truth, are we to deny him virtue? If he lies, is it not vice? Can a man who is partially insane not at the same time be vicious?

Then why plead the knowledge of right and wrong by all lunatics on subjects apart from their delusions as an argument against its applicability and use as a test of their responsibility on subjects connected with their delusions? If it can be proved that the insane man lacks the power of distinguishing the good from the evil-the permitted and the forbidden in relation to his erroneous and diseased beliefsour proposition is made out, and the knowledge of right and wrong is a perfectly adequate test even in relation to delusion. In that case, it will be proved to be a most accurate means of distinguishing the sane acts of a man from the insane acts, which is a much more important matter than distinguishing the insane man from the sane. Suppose, then, an individual to labor under a delusion that God speaks to him, and commands him to give light to the world, and that the voice even indicates in what way it is be done-say by burning down the house-although that man may know right from wrong, may know that it is wrong to lie, or steal, or swear, yet in relation to that one act, he cannot distinguish right from wrong at the time he does the deed. The supposed voice of God has made the distinction between these impossible; and therefore, in the event of his setting fire to the house, he should not be punished for arson.

213. Objections to this Test considered.-The best argument which has been urged against this test is the following. It is urged by some physicians whose words are worthy of attention, and what they regard as arguments are worthy of due consideration: "The speculative is very different from the active, they say. Many men can reason well and do ill. Men live two lives-one in their heads, and the other in the world; and a great gulf often yawns between these, which it is impossible to bridge over. There is a wide difference between a speculative knowledge of right and wrong and the power which enables men to put speculative beliefs into action. The gulf may be left unbridged voluntarily or involuntarily. Hypocrisy, of course, delights in the most sublime speculations, for, never intending to go