that general form, though the same cannot be insisted on as a matter of right."

¶ 181. The mode by which these opinions were elicited was certainly anomalous, as no judicial proceeding was pending in reference to the questions asked. The result, as Sir James Stephen points out, was that the answers themselves were unsatisfactory. They were not given after formal argument. They contained no examination of the previous current of authorities and decisions. What was most important, they were not given with regard to any state of facts, real or assumed, which would have enabled the judges to point out how their rules would apply to such concrete instances as, for example, those of Me Naghten himself or of Hadfield. Still the opinions themselves are of the highest possible weight, being given by fourteen of the most experienced judges, after anxious deliberation, and no doubt after the fullest consideration of everything that had been written or decided upon the point in England. In every subsequent case in England these opinions have been followed, as the most authoritative expression of the law upon the subject. What is most important for our purposes is, that they were apparently adopted by the Legislature of India. Act IV. of 1849, s. 1, provides that "no person can be acquitted for unsoundness of mind, unless it can be proved that, by reason of unsoundness of mind, not wilfully caused by himself, he was unsconscious and incapable of knowing, in doing the act, that he was doing an act forbidden by the law of the land." The Indian Penal Code substantially follows the same rule. It lays down two tests of criminal responsibility: First, did the offender know the nature of the act? Second, did he know that it was either wrong or contrary to law?

182. Sir James Stephen is of opinion1 that these tests are not exhaustive, and that there is a third ground of exemption, viz., "that a person should not be liable to be punished for any act done when he is deprived by disease of the power of controlling his conduct, unless the absence of the power of control has been caused by his own default." He thinks that it is not certain that this view is opposed to English law, but that, if it is, the law ought to be altered. On the first point, with the most unqualified respect for his opinion, I cannot agree with him; the judges in their

1 2 Crim. L. 177.

3

opinions certainly did not negative this ground of exemptions in terms, but in their answers to the second and third questions, which applied to all cases of alleged insanity, and not merely to cases of insane delusions, they practically excluded any such defence. In McNaghten's case the medical witnesses had expressly asserted that he was not capable of exercising any control over acts which had connection with his delusion, and the judges must have had this evidence present to their minds when they consulted on the law. On the trial of Oxford for shooting at the Queen, Lord Denman, C.J., did, no doubt, say, "If some controlling disease was in truth the acting power within him, which he could not resist, then he will not be responsible;" but the doctrine of uncontrollable impulse has been rejected in the most unqualified manner by Rolfe, B., in Reg. v. Stokes; 2 by Parke, B., in Reg. v. Barton; and by Wightman, J., in Reg. v. Burton. In 1878, when an attempt was being made to codify the criminal law of England, Sir James Stephen drafted a Code, in which he introduced the ground of exemption for which he still contends. That draft was referred to a Commission consisting of Lord Blackburn, Lush, J., Barry, J. (of the Irish Bench), and Sir James Stephen. They framed a new Code in 1879, s. 22 of which provided "that to establish a defence on the ground of insanity, it must be proved that the offender was, at the time when he committed the act, labouring under natural imbecility or disease, affecting the mind to such an extent as to be incapable of appreciating the nature and quality of the act, or that the act was wrong." In their report they refer to the draft of 1878 as recognizing "as an excuse the existence of an impulse to commit a crime, so violent that the offender would not be prevented from doing the act by knowing that the greatest punishment permitted by law for the offence would be instantly inflicted." On this they remark," the test proposed for distinguishing between such a state of mind and a criminal motive, the offspring of revenge, hatred, or ungovernable passion, appears to us on the whole not to be practicable or safe, and we are unable to suggest one which would satisfy those requisites, and obviate the risk of a jury being misled by considerations of so metaphysical a character."

183. It is certainly conceivable that there might be a state of mental disease, which would deprive the sufferer of all capacity to resist a particular impulse, while it left him the perception of the nature and consequences of the act to which he was impelled. The insuperable difficulty in the way of giving legal effect to such a defence would be, that it would be impossible to establish it. We can tell that a man has not resisted an impulse, but how can we tell that he could not have resisted it, or why he could not? It is a matter of everyday experience that persons who are subject to no mental disease, yield to apparently uncontrollable fits of passion, and commit crimes for which they are hung. It may be that they could not control their passion, but we hang them all the more on that account. If a man who is mentally diseased acts in a similar way, how are we to know that his want of control is due to his mental disease, or that his mental disease did more than supply him with a motive for his act, while not depriving him of the power to refrain from it, if he had chosen? Even in a lunatic asylum some sort of discipline is maintained, by pains and discomforts inflicted upon the patients, and they learn to exercise some self-restraint in order to avoid the infliction.1 If a case arose in which it appeared to be made out that mental disease had absolutely destroyed the capacity to govern the will, the case would probably fall under one or other of the two grounds of exemption stated in the Penal Code. If it did not, the conflict between law and mercy would have to be solved by the dispensing power of the Executive, not by the exempting power of the judge.2

184. The Penal Code contemplates, as grounds of exemption from criminal responsibility, two completely different mental conditions arising from unsoundness of mind, viz., an incapacity (1) to know the nature of the act; (2) to know that he is doing what is either wrong or contrary to law. Of these, the first seems to refer to the offender's consciousness of the bearing of his act on those who are affected by it; the second, to his consciousness of its relation to himself. Each species of consciousness is ordinarily present to the mind of a normally sane person. Either, or both, or neither may be absent from the mind 1 2 Steph. Crim. I. 181.

2 See the remarks of Sir James Stephen on the medical evidence in Dove's case, 3 Steph. Crim. L., pp. 429-437.

of one who is mentally diseased. The absence of both or either relieves the offender from liability to punishment.

The question of criminal insanity practically only arises in cases of homicide. In other cases, a successful plea of insanity would entail upon the prisoner a penalty worse than that resulting from conviction. Even in England, where kleptomania is sometimes set up on behalf of respectable thieves, it is rather addressed to the clemency of the judge than to the verdict of the jury. The ensuing remarks will refer exclusively to cases of homicide.

¶ 185. First. The words "incapable of knowing the nature of the act" may refer to two different states of mind, which are distinguished in the answers of the judges, and in the English Draft Code of 1879, by the words nature and quality. A man is properly said to be ignorant of the nature of his act, when he is ignorant of the properties and operation of the external agencies which he brings into play. As if, for instance, an idiot should fire a gun at a person, looking upon it as a harmless firework. He is ignorant of the quality of his act if he knows the result which will follow, but is incapable of appreciating the elementary principles which make up the heinous and shocking nature of that result; as if, for instance, an idiot was unable to perceive the difference between shooting a man and shooting an ape. Both of these states of mind are no doubt intended by the authors of the Penal Code to be included under the words they have used.

This ground of exemption will hardly ever be found to exist, except in the case of idiots, or of lunatics whose insanity is so complete as to sweep away substantially all the reasoning power which distinguishes a man from a beast. But it seems to me most important to point out, that a person in this condition might have that consciousness, which is equally possessed by the lower animals, that the act which he intended to do was wrong in the sense of being forbidden, and one for which he might be punished. This, however, would not render him liable under the words of the second clause, if he was incapable of knowing the nature of the act which he really did, and for which alone he could be indicted. A good illustration is to be found in the case, mentioned by Sir James Stephen, of the idiot who cut off the head of a man whom he found sleeping, because, as he explained, it would be

such fun to watch him looking about for his head when he awoke. It is probable that the idiot was quite aware that the man was entitled to the possession of his head, and expected that, if he was detected, he would be well cuffed by the man, and very probably taken up by the police. It is quite certain he had no idea that his fun would be lost, because the man would never awake.

¶ 186. Second.-The next ground of exemption is the most important, as it is generally the test in the very numerous cases, where mental disease has only partially extinguished reason. One familiar instance of such partial extinction is the case of delusions, which, apparently, leave the mind unaltered outside the special ideas which they affect. The questions put by the House of Lords to the judges seem to have been specially addressed to this form of insanity. Their answers are perfectly clear, and are embodied in the following clause of the Draft Code of 1879, which puts the law in the most satisfactory manner.

"A person labouring under specific delusions, but in other respects sane, shall not be acquitted on the ground of insanity, unless the delusions caused him to believe in the existence of some state of things which, if it existed, would justify or excuse his act. Provided that insanity before or after the time he committed the act, and insane delusions, though only partial, may be evidence that the offender was, at the time when he committed the act, in such a condition of mind as to entitle him to be acquitted on the ground of insanity."

¶187. In Reg. v. Townley, Martin, B., put, as an instance of a delusion, the case of a man who fancied himself to be a king dispensing justice to 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." In a case which occurred in the Madras Presidency, an official travelling by night in a district which had been disturbed, shot a moonsiff who came to greet him when he was changing his bearers, under the belief that the moonsiff was the head of a gang of rebels. If this was an insane delusion, he would have been entitled to acquittal on the ground of insanity. So

1 3 F. & F. 839.