his classification of those who are non compos mentis, standing sufficient to enable it to avoid repeating a he does not exempt the drunkard from criminal painful experience. Another rule of law provided responsibility as he does the other persons who are that infants under seven were conclusively predeprived of memory and understanding. In the sumed to be incapable of forming a criminal intent. third volume of his Institutes, on page 50, he says: But as babies possess to some degree both memory "As for the drunkard who is voluntarius daemon, and understanding, the test of mental responsibility, he hath no privilege thereby, but what hurt or ill given by Coke, is so broad that it would even hold soever he doth, his drunkenness doth aggravate it." babies liable for breaking the law if another rule Coke also points out in Beverley's case that a person were not provided for their protection. If Coke's non compos mentis is criminally responsible if he test were applied in the animal world you would kills or attempts to kill the king. The reason alleged have to descend to the lower animals before you for permitting an insane person to be punished for would find any that would be exempted from punhigh treason, though not for other offenses, was ishment for their wrongdoing. In the realm of that the persons of kings are so sacred that none human beings it is difficult to imagine a creature can offer them any violence." This exception to so devoid of reason, and with a mind so diseased, the general rule that persons non compos mentis are that he is possessed of no understanding whatsoever irresponsible, was founded on a rather mythical, and is incapable of remembering a single thing that basis, and no longer prevails. In fact, two of the ever happened in his life. leading cases of the nineteenth century, where in- If Coke realized the full significance of the exsanity was relied on as a defense, were the trials pression he used, namely, that the person should of Oxford, in 1840, for shooting at Queen Victoria," wholly have lost his memory and understanding," and the trial of Guiteau, in 1881, for the assassina- he must have perceived that it would be almost tion of President Garfield. And in the last year of impossible to find any law-breaker demented the eighteenth century, Hadfield was acquitted on the ground of insanity, for the attempted assassination of King George III.

When Coke said that no felony or murder could be committed without a felonious intent and purpose, he gave utterance to a statement that was a credit to himself and a tribute to the humanity of the law. But when he attempted to define the test of irresponsibility he practically nullified the idea to which he had given utterance, when he said that the act does not make the man guilty, unless the mind be guilty. Lord Coke's rule was that to exempt a person from punishment, for his criminal act, on the ground of being non compos mentis, he should wholly have lost his memory and understanding." The most sweeping attack ever made on Lord Coke's rule was given by Erskine in the Hadfield case, who asserted that "no such madness ever existed in the world."

enough to be entitled to the benefit of the rule. It does not require a very extensive acquaintance with lunatics to know that nearly all possess some memory and more or less understanding. Under Coke's test the mono-maniacs or those afflicted with other forms of partial insanity would have had to suffer for their acts, however free they might have been from a felonious intent.

Nothing shows more conclusively the inadequacy of the test of irresponsibility, which required persons to be totally deprived of memory, than the fact that a phenomenal memory is often found in idiots. It would, of course, be an exaggeration to say that a phenomenal memory is an indication of insanity, yet it is not unusual to find an insane person with a memory of which any sane person might be proud. Hadfield was undoubtedly insane when he attempted to assassinate King George III, yet he could not in any sense be said to have been deprived of his memory. On the contrary, Erskine said that "he could have communicated at that moment every circumstance of his past life, and everything connected with his present condition, except only the quality of the act he was meditating."

Coke practically reiterated the measure of responsibility given in the case of Reniger v. Fogoffa, where it was stated that to excuse a man for his homicidal act, he must have no memory or understanding. The turtle incident is, therefore, as applicable to the test of Coke as it was to that given in Reniger v. Fogoffa. It would doubtless be difficult, as Erskine suggested, to discover a maniac who could be held to be exempt from criminal responsibility under a literal interpretation of Coke's test. Even the raving maniac or the jabbering idiot is not wholly deprived of his memory and understanding. The word "wholly " is so broad and sweeping that it practically leaves no latitude at all. Few creatures, however bereft they may be of reason, but what have some understanding and reason. A Perhaps no other musician in America has ever baby puts its little hand on the stove and the hand been possessed with as wonderful a memory as is burnt. The baby does not put its hand there the "Blind Tom" for remembering the notes of a second time because it has memory and under- new and difficult musical composition. To play to

It is related of an imbecile boy that he could stand and watch a long line of freight cars pass by, and then could repeat, without hesitation, the number painted on each car, giving the cars in the order in which they passed. Any one who has ever tried this will have discovered that it is an almost impossible feat for the average sane person, of sound mind and memory. Yet it was an easy thing for this half-witted boy.

him was like playing to a phonograph. He could law. They brought order out of chaos and helped repeat, without an error or omission, the most to establish the common law upon a secure foundadifficult selection, in its entirety, even if he had tion. Far be it from me to disparage their works never heard it before. Yet his marvelous memory or mission. But the point which I am urging is was linked with a feeble mind. that Coke and Hale should not be considered as The total deprivation of memory and understand-authorities at the present time upon a subject which ing test is, therefore, defective in two respects. was but little understood at the time they wrote. In the first place, comparatively few, if any, luna- Coke and Hale were, perhaps, as well informed tics are sufficiently deficient in mental capacity to about diseases of the mind as any of their conmeet the requirements of the test, and thus escape temporaries. But the doctors of the period were punishment for their uncontrollable acts. In the groping in the dark on the subject of insanity. second place, the branch of the rule requiring a The legal tests of Coke and Hale were founded on total deprivation of memory is not founded on any the medical opinion of the time. But the alienists logical basis, as idiots, instead of being deprived of to-day, fortified as they are with the results of of memory, are often the possessors of better memo- the careful investigations of a century upon the ries than persons of sound mind. subject of insanity, assert that the doctors of three centuries ago were in almost entire ignorance of the real nature of insanity and of the proper ways of treating the disease. In the light of the modern treatment of the insane, it is hard to realize the

persons but little more than a century ago. Madmen were confined in dungeons, chained like wild beasts in their cells, and exhibited by their keepers to the curious throngs that came to see them, in much the same style that a keeper of a menagerie shows off his caged beasts to the admiring crowds. People took delight in throwing sticks and other things at the madman, and otherwise taunting him, just to see what he would do. The feelings of the insane persons were not considered at all. The brutal treatment of a maniac aroused no particular sympathy for him. The only thing considered then was what the courts have never tired of harping on, namely, the interests of society.

The end which Coke had in view in formulating a measure of irresponsibility was an admirable one. He saw, as the Roman jurists saw, that to punish a madman for his act would be folly. On the one hand, no good could possibly result from punishing barbarous treatment that was accorded to insane a man for what he cannot help, since the reasons on which the doctrine of punishment is based would not apply in such a case. Besides, it would be an injustice and an act of inhumanity to the insane person who happened to break the law. On the other hand, it would not deter other insane persons from committing similar offenses. Therefore, Coke wisely wished to release persons non compos mentis from the penalties which they would otherwise have to suffer for their uncontrollable deeds. But the test of insanity which he chose defeated the very purpose of its existence. A test, formed at a time when the nature of the disease of insanity was entirely misunderstood by both lawyers and doctors, it is little wonder that it should be illogical, imperfect and wholly unsatisfactory. Not over a hundred years ago the test of Coke was indorsed by many distinguished jurists, but it is safe to say that no court in the United States or England would uphold it without some modification at the present time. We may, therefore, place Coke's test side by side with that of Fitzherbert and its counterpart, the turtle test of Reniger v. Fogoffa, and consign all three to the ignominy of oblivion.

66

Physicians formerly made no attempt to cure the person who was non compos mentis or to alleviate his condition. The cruel treatment that insane persons received must surely have aggravated their insanity. If a sane person had been compelled to undergo the same tortures to which the madman was subjected, it would have been enough to have driven him from sanity to madness. Physicians did not even treat insanity as a disease. It was not until about 1790 that Tuke, a Scotch physician, Pinel, a French, and Rush, an American, convinced Side by side with Edward Coke, as one of the people that insanity was really a disease. Tuke, great commentators of the common law, must be who was a Quaker, founded the Retreat," at placed the name of Sir Matthew Hale. Coke and York, where the insane were released from their Hale exerted an unmeasurable influence upon our chains and dungeons and treated humanely and law as it stands to-day. They gave a fixity to the kindly. About the same time Pinel was doing a common law, and in many respects the law has not similar service for the insane of France. Thus, it been changed since they fixed it. Modern courts may have modified the rules of insanity handed down by Coke and Hale, but the modifications have been gradual, and most courts have found it hard to tear away from the ancient moorings. The decisions of the present time are influenced by the writings of Coke and Hale upon the subject of insanity. To Coke and Hale as jurists all honor is due. They codified and simplified the common

is but a little over a century since physicians have begun to fathom the mysteries of insanity and to treat the poor unfortunates, who are afflicted with diseased minds, like human beings instead of beasts. The medical authorities of to-day absolutely and unqualifiedly repudiate the opinions which were held regarding insanity by the physicians who lived prior to the time of Tuke and Pinel.

The rules of Coke and Hale for ascertaining in

the necessity of fixing a definite line to divide the cases of partial and total insanity, he fixed the boundary between them in the following way. Hale said: "The best measure that I can think of is this; such a person as laboring under melancholy distempers hath yet ordinarily as great understanding as ordinarily a child of fourteen years hath, is such a person as may be guilty of treason or felony."

sanity were based upon the opinions of contempo- great an indulgence given to crimes." But, feeling rary medical authorities. If modern medical science conclusively shows that the physicians of a former age were in almost utter darkness as to the inherent nature of diseases of the mind, their teach ings should no longer be valuable to our courts as a guide. It appeals to a judge's respect for conservatism to be able to uphold a rule of ancient standing, which has received the indorsement of so great a commentator as Sir Matthew Hale. In the The test given by Hale is preferable to the one examination of about two hundred cases, in which laid down by Coke, for while the latter requires the insanity has been interposed as a defense. I have accused to be wholly deprived of memory and found it repeatedly asserted by judges that they did understanding, the former will acquit him if he not favor the adoption of a new test since there hath not ordinarily as great understanding as ordiwas an old test that had been passed upon by narily a child of fourteen years hath." Both tests other jurists and had become imbedded in the law. are so narrow that it would be impossible under This reverence for things that are old and rules either to excuse a person from a felony on the that are fixed has often led judges to entirely over-ground of partial insanity. The only improvement look the reasons to which the old rules owe their to be noticed in Hale's test, compared with that of existence. The old maxim that when the reason Coke, is that it gives a chance to a person who is of a rule is gone the rule itself should go, is cer- totally insane to be acquitted because of his insanity. tainly applicable to the tests of insanity given by It would be difficult to acquit anybody under the the early law writers. The old tests owed their rule given by Coke. origin to the medical opinions of their day. Since those medical opinions were ignorant and erroneous, the legal tests based upon them are valueless. If Coke and Hale relied on contemporary medical authorities, why should not modern courts rely on contemporary medical authorities? It is certainly more logical to follow the medical science of the twentieth century than to follow that of the seventeenth.

Hale was born in 1609, and was appointed lord chief justice of the King's Bench in 1671. His famous work, "Pleas of the Crown," which includes his discussion of partial and total insanity, was written about fifty years after Coke wrote his Institutes. The test of insanity given by Hale in the " Pleas of the Crown," has been referred to in numerous cases and was quoted by Lord Campbell in his opinion in the celebrated McNaughten case.

The fatal weakness of Hale's test is the intentional omission of any provision which will permit a person partially insane to be excused from criminal responsibility, even if his insanity is the sole cause of his act. His test may, perhaps, be fairly accurate as a test of total madness or idiocy, but it falls far short of meeting the requirements of a satisfactory test of criminal responsibility. There are comparatively few persons, who are sufferers from some form of insanity, who are possessed of less understanding at ordinary times than children of fourteen. Total insanity comprises a comparatively small number of the entire cases. All victims of monomania, for example, which undoubtedly is an important branch of insanity, would be held responsible under Lord Hale's rule. The monomaniac is as natural on subjects disconnected from his mania, as other men. Erskine, in his famous Hale's position was in advance of that of Coke. speech in the Hadfield case, told how he had been He stated that for a person to be responsible for questioning a certain man for over an hour in a his crime it was not necessary that he should have vain attempt to discover his insanity. Finally a a full use of his reason, but, as he expressed it, a physician gave Erskine the clue he had been seekcompetent use of it." Hale recognized the exist- ing, namely, that the man believed himself to be ence of partial insanity, but at the time he wrote, Jesus Christ. Erskine then asked the man a quespartial insanity was not permitted to be interposed tion on the subject of his mania, and the man reas a defense to a felony. The distinction between sponded, “I am the Christ.” partial and total insanity, therefore, became of the A parallel anecdote came to my notice recently. utmost importance, for the accused could not avail A patient was confined in the New Jersey State himself of the defense of insanity unless his total asylum at Trenton, whom his friends believed to be insanity was proved. Lord Hale fully appreciated, sane. Upon application to the court, the judge, a the difficulty of separating the two forms of insani y by any arbitrary standard, for he stated in a sentence of unusual merit that "it is very difficult to define the invisible line that divides perfect and partial in sanity, but it must rest on circumstances duly to be weighed and considered by the jury, lest on the one side there be a kind of inhumanity towards defects of human nature, or, on the other side, too

man of high rank in the judiciary of the State, went to the asylum to satisfy himself as to the condition of the man's mind. Dr. Ward, superintendent of the institution, accompanied the judge in his examination. Question after question was propounded and to each a sane response was given. When the judge had questioned until he was tired, and still there was no trace of insanity, the judge

and Dr. Ward turned to leave the room. Pausing that in the name of humanity and justice should at the door a moment the superintendent turned to be excused. the confined man and said: "Well, John, we have it all settled now except the question of the divinity of Christ." The sentence which the superintendent dropped had the same effect upon the patient as dropping a spark would have on a barrel of gunpowder. In a second the explosion came. From being a quiet, apparently sane man, he was transformed into a raving maniac. When the judge and the doctor were safely outside, the judge turned to the doctor and said: "Until that last sentence I firmly believed that that man was sane. But I am satisfied now that you know your business."

Before accepting Hale as an authority on the subject of mental diseases it might be well to examine a few of the notions that he entertained and see how they compare with the notions held by the people of the present day. In the "Pleas of the Crown," Hale refers to one form of accidental dementia as being what is "usually called lunacy, for the moon hath a great influence in all diseases of the brain, especially in this kind of dementia: such persons commonly in the full and change of the moon, especially about the equinoxes and summer solstice, are usually in the height of their distemper."

In a trial for witchcraft over which Lord Hale

to the jury: "That there are such creatures as witches I have no doubt at all. For, first, the Scriptures had affirmed so much. Secondly, the wisdom of all nations had provided laws against such persons, which is an argument of their confidence of such a crime." As a result of this exposition of the law the prisoners were executed for witchcraft.

Hale's believing that the moon was a great cause of mental disturbance and his belief that men should be executed for witchcraft were notions quite in touch with the current thought of the time. But such beliefs belong to a by-gone age and our courts should not look for guidance on matters of insanity to a time when such ignorance prevailed.

In the instances mentioned each man was laboring under an insane delusion in regard to the divinity of Christ, which is a rather common form of presided, he gave the following interesting charge delusion. On that subject they were irrational. The man of whom Erskine has told was grave but firm in his belief in the truth of his delusion. The man in the New Jersey asylum became wild and raving as soon as the subject of his mania was mentioned. If under the influence of his delusion either of those men had committed a criminal act, which was solely inspired by his delusion, it would be an unjust human law that would hold him accountable for that act before the bar of justice. If the insane delusion caused the act, the man would be incapable of forming a criminal intent as to that act. He would not believe himself to be an offender against the laws of God or man. To punish him for the act committed would in reality be to punish him because he is After Lord Hale's time the next test of responsiafflicted with a diseased mind. Any law is inhu- bility that we find in the English reports is the mane that punishes a man for something that is his famous, or rather infamous, wild beast test, that misfortune and not his fault. Yet that is exactly was given by Justice Tracy, in 1724, in the trial of what the law, as laid down by Lord Hale, would Arnold for shooting at Lord Onslow. Many moddo in a case like the one mentioned. Every per-ern law writers do not distinguish the various early son who is laboring under an insane delusion, every tests of insanity, but designate them all under one victim of monomania, every insane person, who has head as the "wild beast test." As a matter of fact, lucid intervals, in fact, every person who is not the wild beast test was not given until 1724. Though absolutely and unqualifiedly insane at all times and subsequent in point of time to the test of Lord Hale, on all subjects, would be held strictly accountable the rule given by Justice Tracy is in reality a step before the law for an act which was the direct re- backward. Like the other early tests it does not insult of his insanity, under Lord Hale's rule. A clude cases of partial insanity. It is a harder rule law which provides that a lunatic is responsible and than the one given by Hale, for it applies to a much punishable for an act committed in a violent smaller number of cases of perfect insanity. It is paroxysm of madness, just because in his lucid in- obviously easier to prove a man an idiot under a tervals his understanding equals or surpasses that rule that merely requires it to be proved that he is of a child of fourteen, shows such an entire ignor- ordinarily possessed of less understanding than a ance of the nature of mental diseases as to be un- child of fourteen, than to be compelled to show, in worthy a place in any system of jurisprudence. A order to establish his idiocy, that he has no more person who does a deed while in a temporary memory and understanding than an infant, a brute frenzy has no more control of his actions than one or a wild beast. Few idiots are so totally bereft of who is totally insane. If a man, partially insane, reason as to be able to qualify under such a test as is impelled to do an act, solely because of his in- Justice Tracy gave. In Justice Tracy's charge to sanity, it is as unjust to punish him as it would be the jury, in whose hands the life of Arnold rested, to punish the poor creature who is insane at all he laid down a rule of responsibility in these words: times and on all subjects. The test of Hale is, "It is not every kind of frantic humor or sometherefore, inadequate and incomplete, and falls far thing unaccountable in a man's actions that points short of excusing from responsibility all the cases him out to be such a madman as is to be exempted

from punishment; it must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute or a wild beast, such a one is never the object of punishment."

so atrocious as murder." There is no difference in meaning in the three statements of the test, but all are reducible to the same idea.

The weakness of the test requiring a knowledge of right and wrong in the abstract was well exIn the test given in Reniger v. Fogoffa, and in pressed by Hope, a Scotch jurist, in Gibson's case the one advanced by Coke, which are so similar in 1844, when he stated that "most madmen do that they may be linked together, it was stated as admit murder to be wrong and punishable in the a bold proposition that the person who is to be abstract." Looking at crime as an abstract propoheld irresponsible must be wholly without memory sition it is perhaps as repulsive to most insane perand understanding. In neither instance was any sons as it is to the average man whose reason is way indicated of proving the person's total depriva- unimpaired. There is often to be found as high an tion of memory and understanding. Our analysis, appreciation of the good, the virtuous, and the true, therefore, revealed that a literal interpretation of among the inmates of an insane asylum, as is to either of these tests would require the person quali- be found among the people outside. The difficulty fying under them to have a less capacity than either is that the insane person, although realizing pera baby or a brute. Justice Tracy's position is, there- fectly well that crime in general is wrong, either fore, a slight advance in that it does not require a less understanding and memory than is possessed by an infant or wild beast, but it requires that it shall be no greater. The advance, however, is so slight that it is hardly appreciable. The objections that were urged against Coke's rule will hold with almost equal force for the wild beast test. We have rejected Lord Hale's test as being incomplete and unsatisfactory. The wild beast test, being even more objectionable than that given by Hale, must also be rejected.

case.

from a delusion or some other cause, may be entirely incapable of perceiving that some particular act is wrong. The person who is under a delusion often separates some particular act from the general class to which it belongs. He may comprehend perfectly that murder, for example, is an offense against the laws of God and man, and yet may kill another, believing that he has a right to do it. The delusion which exists in his mind prevents him from seeing his own act in its true light, and he is unable to apply abstract principles to his particular The next test in chronological order is the one Take, for example, the case of Rex v. Searle holding a person responsible for his act if he is (1 Moody & Rob. 75), which was decided in Engcapable of distinguishing between right and wrong land in 1831. The prisoner was a religious fanatic in the abstract. There is a variation in the termin- who had always lived an exemplary life and had ology of the different cases which have adopted this been very affectionate to his daughter. Being test, but the cases in reality uphold the same meas- under a delusion that he was ordered by the Holy ure of responsibility. Thus, in Lord Ferrer's case. Ghost to shed human blood in order to obtain saldecided in 1760, where the test was first adopted, vation, he killed the daughter that he loved. As a it was stated that in order to acquit the prisoner, result of the acceptance of the delusion theory by he must be incapable of distinguishing between the court, the prisoner was acquitted. But if it had moral good and evil. In the trial of Bellingham been shown that Searle recognized as an abstract for murder, at the Old Bailey in 1812. Lord Chief proposition that murder was wrong, as he doubtless Justice Mansfield in his charge to the jury said did, the application of the test of right and wrong that in order to support the defense of insanity "it in the abstract would have sent him to the gallows. ought to be proved by the most distinct and unA similar case occurred in Massachusetts, where questioned evidence, that the criminal was incapab'e a religious crank killed his child, believing that God of judging between right and wrong. It must, in had commanded him to do it. He knew that it was fact, be proved beyond all doubt that at the time wrong to commit murder, but he did not believe he committed the atrocious act with which he stood that the general law against murder was applicable charged, he did not consider that murder was a to his case. If the court had held that in order crime against the laws of God and nature. There for him to escape responsibility he must have been was no other proof of insanity which would excuse incapable of distinguishing right from wrong in the murder or any other crime." Then in the trial of abstract, his execution must necessarily have reKinloch before the High Court of Justiciary. at sulted. But as the judge stated that he was irreEdinburgh, in 1795, Robert Dundas, the lord advo- sponsible if he was incapable of knowing that the cate, stated the test in yet another way. He said particular act in question was wrong, his acquittal that the prisoner was within that degree of melan- naturally followed. choly and depression of spirits which, though it In answer to the objection that is raised to the may border on insanity, is nevertheless accompanied right and wrong test by medical men, namely, with a sufficient share of judgment to discern good that most persons who are admitted to be insane, from evil, and moral right from wrong; which still know the difference between right and wrong, never has and never can be sustained as a bar to a Browne, in his Medical Jurisprudence of Insanity, trial, or a defense against punishment for a crime replies that "if it were a test of insanity that was