fying phrase, 'and is not in other respects insane.' That is, if insanity produces the false belief, which is the prime cause of the act, but goes no further, then the accused is to be judged according to the character of motives which are presumed to spring up out of that part of the mind which has not been reached or affected by the delusion or the disease. This is very refined. It may be that mental disease sometimes takes a shape to meet the provisions of this ingenious formula; or, if no such case has ever yet existed, it is doubtless within the scope of Omnipotent power hereafter to strike with disease some human mind in such peculiar manner that the conditions will be fulfilled; and, when that is done, when it is certainly known that such a case has arisen, the rule may be applied without punishing a man for disease. That is, when we can certainly know that although the false belief on which the prisoner acted was the product of mental disease, still that the mind was in no other way impaired or affected, and that the motive to the act did certainly take its rise in some portion of the mind that was yet in perfect health, the rule may be applied without any apparent wrong. But it is a rule which can safely be applied in practice that we are seeking; and to say that an act which grows wholly out of an insane belief that some great wrong has been inflicted, is at the same time produced by a spirit of revenge springing from some portion or corner of the mind that has not been reached by the disease, is laying down a pathological and psychological fact which no human intelligence can ever know to be true, and which, if it were true, would not be law, but pure matter of fact. No such distinction ever can or ever will be drawn into practice; and the absurdity as well as the inhumanity of the rule seems to me sufficiently apparent without further comment.... It is a question of fact whether any universal test exists, and it is also a question of fact what that test is, if any there be."[1]
Since the answers of the judges were made to the House of Lords, the law as relating to insanity in a criminal trial has been laid down in conformity with their conclusions: if the accused person at the time of committing the offense knew right from wrong, and that he was doing wrong, he must be brought in guilty, whether insane or not. If insane, he is not necessarily exempted from the punishment of his crime; the question is, whether he was at the time capable of committing a crime; and that must be determined by evidence of the absence, not of insanity, but of a knowledge of right and wrong. Was his insanity of such a kind as to render him irresponsible by destroying his knowledge of right and wrong? Nevertheless, juries often, and judges occasionally, out of a natural humanity repudiate this dogma in particular cases, and, so far from any certainty of result having been secured by its application, it is notorious that the acquittal or conviction of a prisoner, when insanity is alleged, is a matter of chance. Were the issue to be decided by tossing up a shilling, instead of by the grave procedure of a trial in court, it could hardly be more uncertain. The less insane person sometimes escapes, while the more insane person is sometimes hanged; one man laboring under a particular form of derangement is acquitted at one trial, while another having an exactly similar form of derangement is convicted at another trial. No
- ↑ State v. Jones, p. 888.
