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beyond speculation, it costs nothing to have them magnificent.' But the madman may be incapable of going beyond speculation. He may know right from wrong, and yet have none of the capacity to refrain from doing the crime, although he may be fully convinced of the criminality of the act." There is a great deal in this suggestion which is worthy of consideration. Man is, as it were, two: he thinks and he acts. It is with the latter that law has to do, and it may seem wrong to choose a test of acts from thought which is partially dissociated from conduct. True, his thoughts do influence his acts, and his acts react upon his thoughts. Still many men know the good and choose evil, and if that choice is dictated either by bodily fear or by what we have called the duress of disease, he ought certainly to be held irresponsible for the crime committed. To fill up the notion of a crime, you require not only the knowledge of good and evil, but the power to choose the one and refrain from the other. Responsibility implies free will. If there is no real volition, there is no real criminality. Looked at in that aspect, the present test of insanity seems defective. It is not in conformity with the facts which are capable of observation by the mass of mankind, for it is certain that unless the legal test, at the same time that it supplies a means of discovering the health or disease of the cognitive faculties, supplies a means of discovering whether the individual whose responsibility is in question has the power to refrain from the wrong of which he is conscious, it would be open to numerous objections, and there would be the most obvious and pressing necessity for a revision and alteration of the law in this respect. An engineer might as well judge of the horse-power of a locomotive from examining the cylinder and the wheels without looking at the boiler, as a jurist gauge the capacity simply by an acquaintance with the reasoning faculties. It would seem, then, that the present test is unsatisfactory, but we cannot doubt that this seeming unsatisfactoriness is due rather to a mistake and misapprehension as to the true meaning of the test than to any inherent defect in the test itself. Those who censure it do not seem to have taken the trouble to ascertain what the test really is. The words of the Judges are these: 'That before a plea of insanity should be

allowed, undoubted evidence ought to be adduced that the accused was of diseased mind, and that at the time he committed the act he was not conscious of right and wrong.' We cannot but think that any one who reads these words will be convinced that it is not the knowledge of right and wrong which one may speculatively entertain in calm moments which is meant to be the test of insanity, as many persons seem to imagine, and as the arguments above alluded to take for granted; but that it is the active idea of right and wrong which a man has when thought is passing over into action, that is relied upon as the distinguishing mark of sanity. These words do not mean that a man's responsibility is to be judged by his thorough understanding of the Decalogue, or by his calm doubts as to the existence of a conscience. They mean that we are to judge by means of the principle of action; and we are so far from thinking that it is the intention of the law to make a speculative belief the test of insanity, that we regard these words as indicating an intention to make the capacity of doing or refraining, the power of choice between good and evil, or right and wrong, the real test, and that it shows that such is the intention by the words at the time he committed the act.' The question to be left to the jury is not, Does he know right from wrong now-does he possess a conscience? but, Did he, at the time he committed the act, know he was doing wrong? At such a time, speculative beliefs go for nothing. A man's closet-code is not that which he takes into the market-place into the strife. We do not judge of a man by what he thinks at home, but by what he does abroad. Are right and wrong present to his mind at the time he acts, or are they absent? If they are absent, his actions cannot be influenced by them: he has no choice. If, then, that absence is due to disease, he is to be regarded as irresponsible. This knowledge of right and wrong, then, is the capacity which a man has, at the particular moment of the deed, of being influenced by motives-the power he has of refraining from the act in question.'

See Responsibility and Disease. London: 1872.

Mr. Dudley Field, in an able paper on "Emotional Insanity," which was read before the Medico-Legal Society of New York, and published in the "Albany Law Journal," 3d May, 1873, says: "The question, then, of insanity, in relation to crimi

14. This Test in relation to Impulsive Insanity.We have seen that some of those who think the test, the nature of which we have been considering, good so far as it goes, are of opinion that it will not be applicable as a test of punishability when the disease is characterised by delusions, or when it is what has been called impulsive insanity. We have shown that it is applicable in all cases of delusional insanity, and it remains for us to consider whether it is applicable in cases where the acts are caused by those hurricane or tornado passions which result from disease, and which are designated irresistible. It cannot, we think, be doubted that such uncontrollable impulses do really occur that insanity may manifest itself in one who has hitherto appeared sane, in one criminal act, and that it may spend its force in that one act and leave its victim in his right mind. There is no reason for saying that insanity must continue a day, or a week, or a month, to be insanity. A man may be sane this

nal responsibility, is not merely whether the offender is of unsound mind, but whether his unsoundness is of that kind and degree that he would not, according to the general experience and judgment of man, be deterred by punishment from a repetition of the act, if committed by himself, or of committing it, if seen by him to be followed by punishment when committed by others. And all this depends upon the question whether the offender was or was not a free agent; that is to say, whether he acted from compulsion so strong that the fear of punishment could not withstand or overcome it. There must have been freedom of choice between doing and not doing, and capacity to choose. Since the object of punishment is, as I have said, to deter an offender and others like him, and since one can be deterred so far, and so far only, as his act is voluntary, the question of legal responsibility must come to this-was the person accused capable of knowing that the act or omission was a violation of law, and of refraining from it? Was he capable of knowing and refraining? I do not ask whether he did know, but whether he was capable of knowing. If he was capable of knowing and of refraining, then he was, in the sense of the law, a free agent. The points to be submitted to a jury are, first, was he capable of knowing that what he was about to do was a violation of law; and being thus capable could he have refrained from doing it, or, to use a common phrase, could he help it;' and I venture to say, that up on these two ultimate questions hangs the decision of the issue of insanity in criminal cases." We cannot but think this refinement as unnecessary as it is ingenious. The real questions of responsibility have to do with knowledge and will. Mr. Field, while he divides insanity into perceptional, intellectual, emotional, and volitional, says he is prepared to maintain that neither perceptional or emotional insanity excuses an act otherwise criminal; and in his conclusions he says: "That intellectual or volitional insanity absolves from criminal responsibility whenand only when--the reason has lost the power of choice or the power of controlling the will." Now this is just the present test of insanity. As to the capacity of knowledge being the question for the jury, we must hold that it is the fact of knowledge which is the question. If he knew, then it is evident he was capable of knowing; and if he did not know that it was wrong and forbidden, and if the absence of that knowledge was due to mental disease, then incapability is to be inferred

milate, insane the next, and sane again the next, just as he may suffer a whole year from disease, have a year of perfect health, and again suffer from disease for another lengthened period. We know that in disease there are flashes of health: there can be no reason for saying that in health there should not be sudden and instantaneous flashes of disease. The difficulty is not in admitting that such impulses may exist, but in proving that acts have resulted from them when they have existed. In this place we have not, however, to do with the difficulty of proof, but with the test of irresponsibility and its applicability to such uncontrollable impulses. If we were right in holding that the test of capacity by means of the knowledge of right and wrong had a distinct and direct reference to the volitional character of the act-if we were right in regarding it as a gauge not of a man's speculative beliefs, but of his volitional faculties, then it follows that it is an excellent test of capacity in relation to this disease, for the very fact that the impulse is irresistible would be at once a ground under this test for exempting the individual from all responsibility and punishment in relation to the act. Speculatively, a man who is compelled to do a thing under fear may be said, even at the time of committing the act, to know right from wrong; practically, he cannot. The man who kills another in self-defence has no speculation in his head at the instant of the death-blow as to the heinousness of murder. All he knows is that there was no help for it: if he had not taken his neighbor's life, his neighbor would have taken his. At that instant, the higher law of self-preservation made him oblivious as to the rightness or wrongness of the act he did. So any one who labors under an irresistible impulse, cannot with any truth be said to have at the instant of such compulsion a knowledge of right and wrong. We hold, then, that this test is a test of the volition as well as the knowledge of the individual-a test of thought passing over into act, which is will; and that consequently no better test of incapacity could be devised in relation to this disease. Prove that the impulse is irresistible, and the law will hold that the individual is irresponsible.

See Fitz James Stephen's Criminal Law of England, p. 94, and Macdonald's Crimi nal Law of Scotland, p. 15.

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? 15. The Test further considered. It follows, then, from what has been said, that we are, after the fullest examination of the medical opinions on the other side, constrained to hold that the answers of the Judges are a most satisfactory statement of the law, and that no better test of responsibility could at the present time be devised than that which makes knowledge of right and wrong at the time of the commission of the act the means of judging of the punishability of the person who has committed a criminal offence. This will, we think, appear from other considerations to be presently entered upon, but we would wish to quote in this place the words of one physician who seems to have adopted the opinion that the answers of the Judges are satisfactory, and afford an adequate criterion for the ascertainment of responsibility. "Although not a test of insanity," says Dr. Hammond, "the knowledge of right and wrong is a test of responsibility; and by knowledge of right and wrong is meant not the moral knowledge that a particular act would be intrinsically right or wrong, but that it would be contrary to law, or rather the individual need not actually have this knowledge, but, so far as his mind is concerned, he must possess the capacity to have it. * **Now, any individual having the capacity to know that an act which he contemplates is contrary to law, should be deemed legally responsible, and should suffer punishment. He possesses what is called by Bain' punishability. If he does not possess this capacity, then he ought not to go at large, for he is a greater enemy to society than one who with evil intent has nevertheless sufficient reason to guide him." And again he says: "The only forms of insanity which in my opinion should absolve from responsibility, and therefore from any other punishment except sequestration, are such a degree of idiocy, dementia, or mania, as prevents the individual from understanding the consequences of his act, and the existence. of a delusion in regard to a matter of fact which if true would justify his act." This shows that some members of

The Emotions and the Will, p. 620. 2d ed. London: 1865.

2 Insanity in its Relations to Crime, p. 70. By W. A. Hammond, M. D., etc. New York: 1873.

3 Op. cit. pp. 73 and 74.

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