432 



INSANITY AS A DEFENSE FOR CRIME. 



milder penalties, can be rendered harmless 

 while he lives, it is still more so in the case of 

 an insane murderer, upon whom milder penal- 

 ties would have no effect. Every argument 

 that will apply in favor of the death-penalty at 

 all, will apply with greater force in the case of 

 the insane than in that of the sane, with, per- 

 haps, one seeming exception. This exception 

 is that of the argument derived from the deter- 

 rent effect of the example upon others who 

 might be tempted to commit the same crime. 

 Of course, if insanity were no defense, it would 

 never be falsely set up by one accused of mur- 

 der; but would the death-penalty have any 

 deterrent effect upon those not yet guilty ? It 

 would certainly take away one,hope for escape 

 from the sane murderer in posse, and it may 

 be doubted whether it would not have some 

 effect upon the insane, who certainly seem 

 sometimes to calculate upon the immunity 

 which their state affords them. But whether 

 this be so or not is really immaterial. The 

 great object of the death-penalty is the death 

 of the criminal, and this being attained, and 

 society being freed from the menace of his 

 existence, the rest is but of secondary impor- 

 tance." He therefore urges the policy of de- 

 stroying insane murderers " as we do any one 

 or anything else whose continued existence 

 threatens the general safety of society." 



Judicial definitions of insanity in murder 

 cases have acquired a new interest in view of 

 the discussion that has arisen. Precedents 

 that are regarded as more or less authoritative 

 run back to the time of Lord Hale, who laid 

 down this rule : " Such a person as, laboring 

 under melancholy distempers, hath yet ordi- 

 narily as great understanding as ordinarily a 

 child of fourteen years hath, is such a person 

 as may be guilty of treason or felony." In 

 1725, in the case of Edward Arnold, indicted 

 for shooting at Lord Onslow, Mr. Justice Tracy 

 caid, in charging the jury : " If he was under 

 the visitation of God, and could not distinguish 

 between good and evil, and did not know what 

 he did, though he committed the greatest of- 

 fense, yet he could not be guilty of any offense 

 against any law whatsoever." And further: 

 " If you believe he was sensible and had the 

 use of his reason and understood what he did, 

 then he is not within the exemptions of the 

 law." In the case of Lord Ferrers, tried for 

 murder in 1760, the solicitor-general stated the 

 question thus : " Was he under the power of 

 it [insanity] at the time of the offense com- 

 mitted ? Could he, did he, at that time dis- 

 tinguish between good and evil ? " The rule 

 of law was stated thus : " If there be a total 

 permanent want of reason, it will acquit the 

 prisoner ; if there be a total temporary want 

 of it when the offense was committed, it will 

 acquit the prisoner ; but if there be only a par- 

 tial degree of insanity mixed with a partial de- 

 gree of reason, not a full and complete use of 

 reason, but (as Lord Hale carefully and emphat- 

 ically expresses himself) a competent use of it 



sufficient to 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 

 offense proved, the judgment of law must take 

 place." In the case of the Queen against Ox- 

 ford, Lord Denman laid down the rule thus : 

 " The question is, whether the prisoner was 

 laboring under that species of insanity which 

 satisfies you that he was quite unaware of the 

 nature, character, and consequences of the act 

 he was committing, or, in other words, whether 

 he was under the influence of a diseased mind, 

 and was really unconscious, at the time he 

 was committing the act, that it was a crime." 

 In the celebrated and much - quoted case of 

 McNaughten Lord Chief - Justice Tindal in- 

 structed the jury that " the question to be de- 

 termined is whether at the time the act in 

 question was committed the prisoner had or had 

 not the use of his understanding, so as to know 

 that he was doing a wrong or wicked act." 

 This case gave rise to a discussion in the House 

 of Lords, and the questions involved were sub- 

 mitted to the judges for an authoritative decis- 

 ion. In their answers the judges said that, in 

 case of insane delusion under the influence of 

 which the accused sought to redress or revenge 

 some supposed grievance or injury, or produce 

 some supposed public benefit, he was "pun- 

 ishable according to the nature of the crime 

 committed, if he knew at the time of commit- 

 ting such crime that he was acting contrary to 

 law " ; there was no exemption from respon- 

 sibility unless, " at the time of the committing 

 of the act, the party accused was laboring un- 

 der 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 " ; if the accused was under an insane 

 delusion as to existing facts and committed an 

 offense in consequence thereof, he "must be 

 considered in the same situation as to respon- 

 sibility as if the facts with respect to which 

 the delusion exists were real." These decis- 

 ions are regarded as fixing the rule for the 

 English courts. 



In the United States there has been great 

 divergence of opinion. In some States the 

 question is left to the jury, in a general way, as 

 to whether insanity caused the crime ; in others, 

 knowledge of right and wrong is made the test, 

 as in England; in still others, the test of a 

 knowledge of right and wrong is coupled with 

 an inquiry as to the defendant's power to con- 

 trol his actions. The right and wrong test may 

 be said to have prevailed generally in the Fed- 

 eral courts, and in those of the States of New 

 York, New Jersey, California, Missouri, "Wis- 

 consin, Tennessee, Texas, Alabama, Louisiana, 

 Virginia, North Carolina, Georgia, Mississippi, 

 Maine, Delaware, and Nebraska. This test is 

 modified by admitting the question of power 

 to apply the knowledge and to control action, 



