that is the point to be decided by the jury. R. v. Right, R. & R. 456: see also R. v. Searle, 1 M. & Rob. 75.

The above-cited case of Reg. v. M'Naughten gave rise to a discussion on this subject in the House of Lords, and the following questions were propounded to the judges, in relation to the law

*respecting alleged crimes committed by persons afflicted with [ 14 ] insane delusion:

"1st. 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 public benefit?

"2nd. What are the proper questions to be submitted to the jury, when 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?

"3rd. 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? "4th. If a person, under an insane delusion as to the existing facts, commits an offence in consequence thereof, is he thereby excused?

5th. Can a medical man, conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial, and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious, at the time of doing the act, that he was acting contrary to law, or whether he was labouring under and what delusion at the time?"

To these questions the judges (with the exception of Maule, J., who gave on his own account a more qualified answer) answered as follows:

To the first question:-"Assuming that your Lordships' inquiries are confined to those persons who labour under such partial delusions only, and are not in other respects insane, we are of opinion, that, notwithstanding the party 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."

To the 2nd and 3rd questions:-"That the jury ought to be told in all

cases that every man is 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 the committing of the act, the party accused was labouring 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 quèstion 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 gene[ *15] rally, and in the abstract, as when *put 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 which 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 party 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 circumstance of each particular case may require."

To the fourth question:-" The answer to this question must of course depend on the nature of the delusion; but making the same assumption as we did before, that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if, under the influence of his 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 self-defence, 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."

And to the last question :-"We think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of those questions involves the deter

mination of the truth of the facts deposed to, which it is for the jury to decide; and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right."

It may be useful to observe, that, if upon the trial of any person for treason, murder, or felony, R. v. Little, R. & R. 430, his insanity at the time of the commission of the offence is given in evidence, and the jury acquit him, the jury must be required to find specially whether he was insane at the time of the commission of the offence, and declare whether he was acquitted on account of such insanity: and if the jury find that he was insane at the time of the commission of the offence, the court before whom the trial takes place must order him to be kept in strict custody, in such manner as to the court shall seem fit, until the Queen's pleasure be known; and the Queen may order the confinement of such person during pleasure. 39 & 40 G. 3, c. 94, s. 1. By the 3 & 4 Vict. c. 54, s. 3, the same provisions are extended to persons charged with misdemeanors. And if any person indicted for any offence is insane, and upon arraignment is found so to be by a jury lawfully impanelled for that purpose, (that is, by a jury returned by the sheriff instanter, in the nature of an inquest of office), so that he cannot be tried upon such indictment; or if, upon the trial of any person so indicted, he *appear to the jury charged on the indictment to be insane, the [ 16 ] court may order that finding to be recorded, and that he be kept in custody till her Majesty's pleasure be known: so, likewise, if any person charged with any offence be brought up to be discharged for want of prosecution, and appear to be insane, the court may order a jury to be impanelled to try the sanity of such person, and, if the jury find him to be insane, may order him to be kept in strict custody, in like manner, until her Majesty's pleasure be known. 39 & 40 G. 3, c. 94, s. 2. See R. v. Pritchard, 7 C. & P. 303; Reg. v. Goode, 7 Ad. & Ell. 536. And any person under sentence of imprisonment or transportation, who may become insane, may be removed to the county asylum or other receptacle for insane persons, by order of the Secretary of State, upon a certificate of two surgeons or physicians, there to remain until it shall be certified to the Secretary of State, that such person has become of sound mind, whereupon he may be discharged by order of the Secretary of State, or removed to prison if still liable to be continued in custody. 9 G. 4, c. 40, s. 55. See 3 & 4 Vict. c. 54.

A grand jury have no authority by law to ignore a bill upon the ground of insanity; it is their duty to find the bill, and then the court, either on arraignment or trial, may order the detention of the prisoner during the pleasure of the Crown. Reg. v. Hodges, 8 C. & P. 195.

Persons in subjection to the power of others.]—The same sound prineiple which excuses those who have no mental will in the perpetration of an offence, protects from the punishment of the law those who commit crimes in subjection to the power of others, and not as the result of an uncontrolled free action proceeding from themselves. 4 Bl. Com. 27; 1 Hale, 43. Thus if A., by force, take the hand of B., in which is a weapon; and therewith kill C., A. is guilty of murder, but B. is excused; but if merely a moral force be used, as threats, duress of imprisonment, or even an assault to the peril of his life, in order to compel him to kill C., it is no legal excuse. 1 Hale, 434: 1 East, P. C. 225. (See ante, p. 6). This protection also exists in the public and private relations of society: public, as between subject and prince, obedience to existing laws being a sufficient extenuation of civil guilt before a municipal tribunal; and private, proceeding from the matrimonial subjection of the wife to the husband, from which the law presunes a coercion, which, in many cases, excuses the wife from the consequence of criminal misconduct. The private relations which exist between parent and child, and master and servant, will not, however, excuse or extenuate the commission of any crine, of whatever denomination; for the command is void in law, and can protect neither the commander nor the instrument. 1 Hale, 44, 516.

In general, if a felony be committed by a feme covert in the presence of her husband, the law presumes that she acted under his immediate coercion, and excuses her from punishment; 1 Hale, 45, 516; 1 Hawk. c. 1, s. 9; thus, a woman who went from shop to shop uttering base coin, her husband accompanying her each time to the door, but not going in, was holden by Bayley, J., to be under her husband's coercion; MS. Durham Spring Ass. 1829; Matthew's Dig. 262; but if, in the absence of her husband, she commit an offence, even by his order or procurement, her coverture will be no excuse; 2 Leach, C. C. 1102; [ *17] 2 East, P. C. 559; R. v. Morris, R. & R. 27: 1 Hawk. c. 1,s. 11; even though he appear at the very moment after the commission of the offence; and no subsequent act of his, though it may render him an accessary to the felony of his wife, can be referred to what was done by his wife in his absence. R. v. Hughes, 1 Russ. 21. This presumption, however, may be rebutted by evidence; and if it appear that the wife was principally instrumental in the commission of the crime, acting voluntarily, and not by constraint of her husband, although he was present and concurred, she will be guilty and liable to punishment. 1 Hale, 516. Thus, a married woman, who swore falsely that she was next of kin to a person dying intestate, and so procured administration to the ef fects, was held responsible for the offence, though her husband was with her when she took the oath. R. v. Dicks, 1 Russ. 19. So, where a

1

husband delivered a threatening letter ignorantly, as the agent of the wife, she alone was held to be punishable. R. v. Hammond, 1 Leach, 447. Where stolen goods are received by a married woman in the absence of her husband, and are concealed in his house without his knowledge, she alone may be indicted and punished for the offence; but if the husband's ignorance of the transaction be not satisfactorily proved, the law will, in most cases, impute the receiving to him. Dalt, c. 157, p. 353. Where husband and wife were convicted jointly of receiving stolen goods, it was holden, that the conviction of the wife could not be supported, though she had been more active than her husband, because it had not been left to the jury to say whether she received the goods in the absence of her husband. R. v. Archer, 1 Mood, C. C. 143. This protection is not allowed in crimes which are mala in se, and prohibited by the law of nature, nor in such as are heinous in their character, or dangerous in their consequences; aud, therefore, if a married woman be guilty of treason, murder, or offences of the like description, in company with and by coercion of her husband, she is punishable equally as if she were sole. Hale, 45, 47, 48; 1 Hawk. c. 1, s. 11; 4 Bl. Com. 29; 1 St. Tr. 28. See Reg. v. Cruse, 8 C. & P. 541; 2 Mood, C. C. 53. So, a married woman may be indicted jointly with her house, R. v. Williams, 10 Mod. 63; 1 v. Dixon, 10 Mod. 335; for these are ernment of the house, in which the wife has a principal share. 1 Hawk. c. 1, s. 12. So, they may be jointly convicted of an assault. Reg. v. Cruse, supra. And, according to the prevailing opinion, it seems that the wife may be found guilty with the husband in all misdemeanors. See R. v. Ingram, 1 Salk. 384; 4 Bl. Com., by Ryland, 29, n. (10). In a recent case, R. v. Price, 8 C. & P. 19, the Common Serjeant, after consulting Bosanquet and Colman, JJ., doubted this distinction, and directed the acquittal of a woman who was indicted with her husband for a misdemeanor in uttering counterfeit coin. (See ante, p. 16.). Hus band and wife cannot alone be found guilty of a conspiracy, for they are considered in law as one person, and are presumed to have but one will, 1 Hawk. c. 72, s. 8.

husband for keeping a bawdySalk. 384, or gaming-house, R. offences connected with the gov

If a married woman incite her husband to the commission of a felony, she is an accessary before the fact; 1 Hale, 516: 2 Hawk. c. 29, s. 34; but she cannot be treated as an accessary for receiving her husband, knowing that he has committed a felony; 1 Hale, 47; not for concealing a felon jointly with her husband. Id.; 1 Hawk. c. 1, s. 10. And she will not be answerable for her husband's breach of duty, however fatal, though she be privy to his misconduct, if no duty [ 18 ] be cast upon her, and she be merely passive. R. v. Squires,

1 Russ. 16.