ever think it possessed when standing alone. The desire for revenge may be so strong as to outweigh the fear of a punishment which a man without any mental disease knows must follow his act. But the rule is, that, in addition to the knowledge of right and wrong in respect to the particular act, the accused must have been capable of knowing that the act itself would subject him to punishment.

It is, doubtless, true that ability to know that a certain act will be followed by punishment, furnishes evidence of the mental condition. So would knowledge of any other fact in law or science. But I can see no more reason for holding that such knowledge is any part of a legal test of capacity to commit crime, than for holding that knowledge of the cause of an eclipse is entitled to the same effect.

The second rule relates to a case where there can be no doubt, where the will, the conscience and the controlling mental power are all gone; and the fourth is substantially the same, where the reason, conscience and judgment are so overwhelmed by the violence of disease, that he acts from uncontrollable impulse. There can be no very appreciable legal distinction between a person who has no will, no conscience, or controlling mental power, and one whose reason, conscience and judgment are so overwhelmed by the violence of disease as to act from an uncontrollable impulse. In both cases it is an act in which reason, conscience, judgment and will do not participate; in a word, it is the product of mental disease.

Power of memory sufficient to recollect the relations in which he stands to others and in which others stand to him, which is given as the third test, seems to me no more a legal criterion than power of memory to recollect any other fact which a healthy mind would be expected to remember, and such power of memory or its lack would be a fact, like other facts, for the jury to weigh in judging whether he had the mental capacity to entertain a criminal intent.

There is no doubt but these instructions of the learned and eminent chief justice of Massachusetts have been largely followed in cases since tried in this country, but the course has been by no means uniform, as we shall see.

§ 405. New York and Pennsylvania Cases Considered.In New York and Pennsylvania, in the two leading cases of

Freeman v. People, 4 Denio, 9, 47 Am. Dec. 216, and Com. v. Mosler, 4 Pa. 267, capacity to distinguish right from wrong was given as the naked test. But in neither of those states has the rule thus laid down been followed with uniformity. In the trial of Huntington for forgery, in New York City, in 1856, Judge Capron said to the jury: "To constitute a complete defense, insanity, if partial, as monomania, must be such in degree as to wholly deprive the accused of reason in regard to the act with which he is charged, and of the knowledge that he is doing wrong in committing it." And the remarks of Edmonds, J., in the earlier case of People v. Kleim, 1 Edm. Sel. Cas. 13, are wholly at war with any such rule as that promulgated in Freeman v. People, supra. He says: "The moral as well as the intellectual faculties may be so disordered by the disease as to deprive the mind of its controlling and directing power, and that he must know the act to be wrong and punishable, and be able to compare and choose between doing it and not doing it."

In Pennsylvania, in Com. v. Knepley (1850) knowledge of right and wrong in regard to the particular act was given as the test; and in Com. v. Haskell, 2 Brewst. 491, the judge charged that "the true test lies in the word 'power.' Has the defendant, in a criminal case, the power to distinguish right from wrong, and the power to adhere to the right and avoid the wrong?"

It would probably not be far out of the way to say that the number of American cases where knowledge of right and wrong in the abstract, and knowledge of the nature and quality of the act that it was wrong-have been given as the test, is about equal to the tendency of late years to the latter form, while it will appear that, in almost every case where any rule has been given on the subject, it has been modified and explained to meet the facts of the particular case, or to carry out the personal views of the judge on the matter of insanity.

§ 406. Instances where all Tests have been Discarded.But there are not wanting cases where all tests have been discarded. In State v. Felter, 25 Iowa, 67, Dillon, Ch. J., says: "The jury, in substance, should be told that if the defendant's act in taking the life of his wife was accused of mental disease or unsoundness, which dethroned his reason and judgment with respect to that act, which destroyed his power rationally to comprehend the nature and consequences of that act, and which, overpowering

his will, irresistibly forced him to its commission, then he is not amenable to legal punishment. But if the jury believe, from all the evidence and circumstances, that the defendant was in possession of a rational intellect and sound mind, and allowed his pas sions to escape control, then, though passion may for the time being have driven reason from her seat and usurped it, and have urged the defendant, with a force at the moment irresistible, to desperate acts, he cannot claim for such acts the protection of insanity." And in Stevens v. State, 31 Ind. 485, 99 Am. Dec. 634, 9 Am. Reg. N. S. 530, which was an indictment for murder, and the defense insanity, an instruction to the jury that, if they believed the defendant knew the difference between right and wrong in respect to the act in question, if he was conscious that such act was one which he ought not to do, he was responsible, was held erroneous.

In the course of his opinion in that case, Gregory, J., speaking of the charge in Com. v. Rogers, 7 Met. 500, 41 Am. Dec. 458, said: "It is by no means clear, and we think it is not entitled to the weight usually awarded it."

Very much to the same effect was State v. Spencer, 21 N. J. L. 196, Hornblower, Ch. J., said: "In my judgment the true question to be put to the jury is, whether the prisoner was insane at the time of committing the act, and in answer to that question there is little danger of a jury giving a negative answer, and convicting a prisoner who is proved to be insane on the subject-matter relating to or connected with the criminal act, or proved to be so far or so generally deranged as to render it difficult or almost impossible to discriminate between his sane and insane acts." State v. Jones, 50 N. H. 369, 9 Am. Rep. 242.

407. Delaware Adopts the New Hampshire View.-The Delaware supreme court, after a struggle with its instincts, adopted the New Hampshire view, and holds that the true test is not, as sometimes laid down, the capacity merely to distinguish between the rightfulness and wrongfulness of the act committed, but also sufficient will power to choose whether he shall do or refrain from doing it. After referring to many cases upon the same subject, the learned judge proceeded to say: "We do not perceive that there is any very great difference in all these cases, the aim of all seeming to be to define a state of mind in which the prisoner is capable of the perception or consciousness of right and

wrong as applied to the act he is about to commit, and has the ability, through that consciousness, to choose, by an effort of the will, whether he will do the deed which he knows to be wrong." In his report of the case, the words quoted are italicised by him to show the approval of the court of the definition of "sanity," which as before said, is knowledge of the rightfulness or wrongfulness of the contemplated action,―the power to decide against doing the wrongful deed. State v. Reidell (Del.) May 18, 1888.

§ 408. The Right and Wrong Test in Formulas.-There are some obiter dicta which would seem to evidence an intention to shroud this doctrine in doubt, or to hamper it with conditions subversive of its clearness and efficacy. There is no occasion however for this obscurity. The rule generally in vogue may be formulated as follows: "The true test of criminal responsibility where the defense of insanity is interposed to an indictment, is whether the evidence shows that the accused had sufficient reason to know right from wrong." Upon this simple test has been engrafted an entirely different proposition. It is this: "and in addition to this knowledge, has he sufficient power of control to govern his actions?" Satisfactory evidence of this last is a difficult matter to obtain. The extent to which a person can control his actions under all the varying impulses aroused by passion, fear, avarice or religious frenzy, is a delicate determination. Frequently to reach a proper conclusion expert medical testimony is required, and such testimony too frequently "leads to bewilder and dazzles to betray."

When an expert is called on to determine whether the mind is diseased to such an extent as to make the person an irresponsible being, the task is much more difficult. Especially is this true where the opinion must be formed and based upon a hypothetical question alone. In such case, it seems to us that the opinion must, of necessity, be mere theory. This is not the fault of the profession, but because more than human intelligence is required to solve the problem.

This right and wrong test has been a persistent subject of attack. Seldom if ever in a capital case is the ingenuity of the counsel for the accused more strenuously exerted than in the attempt to inject into the general defense of insanity the theory, some mysterous pressure to the commission of the acts, the consequence of which he anticipates but cannot avoid.

Whatever medical or scientific authority there may be for this view, it has not been accepted by courts of law. The vagueness and uncertainty of the injury which would be opened, and the manifest danger of introducing the limitation claimed into the rule of responsibility, in cases of crime, may well cause courts to pause before assenting to it.

Indulgence in evil passions weakens the restraining power of the will and conscience; and the rule suggested would be the cover for the commission of crime and its justification. The doctrine that a criminal act may be excused upon the notion of an irresistible impulse to commit it, where the offender has the ability to discover his legal and moral duty in respect to it, has no place in the law. Every crime was committed under an influence of such a description, and the object of the law is to compel people to control these influences. The doctrine of irresponsibility for a crime committed by a person who had sufficient mental capacity to comprehend the nature and quality of his act, and to know that it was wrong, on the ground that he had not the power to control his action, has not met with favor in the adjudications in the state of New York. Flanagan v. People, 52 N. Y. 467, 11 Am. Rep. 731.

§ 409. Liberal Views of the Alabama Supreme Court.-I shall elaborate the treatment of this subject with the following extended extracts from the exceptionally able opinion of Mr. Justice Somerville in Parsons v. State, 81 Ala. 577, 60 Am. Rep. 193. Taken together with the dissenting opinion of Chief Justice Stone in the same case, there is a presentation of the topic under review, that seems to exhaust the subject. Few opinions even from this able court are so freighted in logical exposition, keen and discriminating analysis, extended collation of authority and scholarly research. Especially is this true when we reflect that of all medico-legal questions those connected with insanity are the most difficult and perplexing. State v. Felter, 25 Iowa, 67.

Judge Somerville says: "We do not hesitate to say that we reopen the discussion of this subject with no little reluctance, having long hesitated to disturb our past decisions on this branch of the law. Nothing could induce us to do so except an imperious sense of duty, which has been excited by a protracted investigation and study, impressing our minds with the conviction that the