It is not surprising to find these learned medics, who have written upon the subject of insanity strictly from the scientific viewpoint of the physician and alienist, repudiating all legal rules or tests that have been announced, and insisting that the whole question is one of fact to be determined by the jury, without any legal rules or tests to guide them. In short, it is not surprising to find these authors on Medical Jurisprudence approving and insisting upon the doctrine as expressed by the New Hampshire court above. But medicine is not an exact science, and doctors themselves have been generally found, in given cases, to differ widely in their opinions as to whether certain manifestations of mental aberration constitute a disease of the mind of which the crime charged is the product. They confessedly agree that they themselves are unable, from the medical viewpoint, to announce any practical tests for determining whether a mental disease exists that shall render one irresponsible for crime. Furthermore, doctors are not supposed to be as familiar with the principles and rules of law as lawyers and judges.

Speaking on this subject, Mr. Bishop says: "Dr. Ray, on the other hand, in his excellent and useful volume, has undertaken to treat of the legal branch with the medical; and he has most soundly cudgeled the judges, on account chiefly, though perhaps not wholly, of his own failure to understand them. When they, for example, have laid down a doctrine in reference to the particular facts under consideration, he has taken the doctrine in a general sense, and then, by representing how far from just it is when applied to other circumstances, not under consideration, has shown up the judges, whom he has not intended to treat unfairly, in a very unfavorable light. Thus he made various adjudications of the courts on this subject appear to be bundles of inconsistencies and absurdities, and the law in many respects, as practically expounded, anything but just and reasonable. And we need not wonder at this, when we reflect how difficult it is for men in any one profession to comprehend what belongs to another, with which they are entirely unfamiliar." Quoted in Ewell's Malpractice, Medical Evidence, and Insanity, p. 370.

Criticizing the critics of his profession who have condemned all legal rules or tests for determining whether mental disease constitutes a defense to crime charged, Dr. D. Meredith Reese says:

the knowledge of right and wrong' at the time of its commission as the definition and test of insanity for the guidance of juries. But many in our profession have been ever remonstrating against these legal decisions as defective and erroneous, and alleging that such 'knowledge' is often possessed by the insane who are unquestionably such. Still, however, we declare ourselves wholly unprepared to lay down any other or better rule of judgment; nor is there any other fession have ever agreed. Our highest authori definition or test upon which the medical proties seem to content themselves with denying that any definition is practicable, or any test conclusive, although every medical sciolist and the bench, the bar, and the jury are all protyro expects his ipse dixit to be infallible, and foundly to cower before a medical certificate of insanity, and the dictum of a professional man Great Britain and the House of Lords as to that the solemn judgment of the 15 judges of irresponsible insanity is 'absurd and nonsensical.' See Ewell on Malpractice, Medical Evidence, and Insanity, p. 371.

Physicians, for the reasons above stated, could not be expected to know exactly what was decided and what was not decided by the judges in McNaghten's Case, nor to correctly understand and interpret the rules as announced by the judges in that case. Hence it is not to be wondered at that they should have condemned those rules as unsound, and should be found heartily approving of the New Hampshire doctrine that there are no legal rules or tests. But, while such is the case with physicians, it is a matter of surprise that the erroneous views of these doctors should have been voiced by any of the That such, learned courts in this country. however, is the case is shown by the decisions of the Supreme Court of New Hampshire, and by some of the comments of the Supreme Court of Alabama, in the cases above referred to. See, also, Stevens v. State, 31 Ind. 485, 490, 99 Am. Dec. 634.

Strange to say, the Supreme Court of Alabama, after criticizing the rules in McNaghten's Case as though these rules undertook to declare the whole law with reference to monomania or partial insanity, and after approving what was said by the New Hampshire court, to the effect that "courts have undertaken to declare that to be law which is matter of fact," thus practically indorsing the view of the New Hampshire court, nevertheless concludes its opinion as follows:

lowing conditions concur: (1) If, by reason of the duress of such mental disease, he had so far lost the power to choose between the right and wrong, and to avoid doing the act in question, as that his free agency was at the time destroyed; (2) and if at the same time the alleged crime

was so connected with such mental disease, in the relation of cause and effect, as to have been the product of it solely."

judges, in their answers to questions propounded by the House of Lords, nowhere "ignore the possibility of crime being committed under duress of an insane delusion operat

While we concur with the Alabama court in its conclusion as to the proper inquiry to be submitted to the jury, we submit, with all due deference to that court, that the judges in McNaghten's Case, by the specific questions that were propounded to them by the House of Lords, were not called upon to decide whether or not one who is afflicted with an insane delusion in respect to one or more particular persons or subjects would be responsible for a crime alleged to have been committed by him which was the product of an irresistible impulse, growing out of the insane delusion. This question might properly have been submitted to the judges for their decision, because the facts in McNaghten's Case were typical of the disease of paranoia that had progressed to its secondary stage of suspicion and persecution. But these facts were not brought by the House of Lords before the judges. On the contrary, only certain specific questions of law were propounded to the judges, and the separate opinion of Mr. Justice Maule, as well as the opinion of Chief Justice Tindal show that they undertook to answer only the questions propounded to them. Justice Maule, speaking for himself said:

"I feel great difficulty in answering the questions put by your Lordships on this occasion: First, because they do not appear to arise out of, and are not put with reference to, a particular case, or for a particular purpose, which might explain or limit the generality of their terms, so that full answers to them ought to be applicable to every possible state of facts, not inconsistent with those assumed in the question."

Lord Chief Justice Tindal, speaking for the other judges, said:

which is destroyed or impaired by disease." Nor does it follow from any of these answers that "the only possible instance of excusable homicide in cases of delusional insanity would be where the delusion, if real, would have been such as to create in the mind of a reasonable man a just apprehension of eminent peril to life or limb," etc.

It appears, therefore, that the Alabama court wholly misapprehended the effect of the rules announced by the judges in their answers to the questions propounded to them by the House of Lords in McNaghten's Case.

Sir Fitzjames Stephen, who was himself. an eminent judge, and one of the most able and brilliant law-writers, in his great work on the History of the Criminal Law of England, in commenting upon the answers of the judges in McNaghten's Case, among other things, says:

"Two things however must be noticed with respect to them. In the first place, they do not form a judgment upon definite facts proved by which the judges were probably under no obligaevidence. They are mere answers to questions tion to answer, and to which the House of Lords had probably no right to require an answer, as they did not arise out of any matter judicially tions are so general in their terms, and the anbefore the House. In the second place, the quesswers follow the words of the questions so closely that they leave untouched every state of words of the questions, can nevertheless be disfacts which, though included under the general tinguished from them by circumstances which the House of Lords did not take into account in framing the questions."

swers suggest and leave untouched is this: How "The difficulty which these questions and anwould it be if medical witnesses were to say (as Dr. Griesinger says, and as the witnesses in McNaghten's Case said in substance) that a delusion of the kind suggested never, or hardly ever, stands alone, but in all cases is the result of a disease of the brain, which interferes more or less with every function of the mind, which falsifies all the emotions, alters in an unaccountable way the natural weight of motives of conduct, weakens the will, and sometimes, without giving the patient false impressions of external facts, so enfeebles every part of his mind that he sees, and feels, and acts with regard to real things as a sane man does with regard to what he supposed himself to see in a dream?"

History of the Criminal Law of England, Stephen, vol. 2, pp. 154, 157.

A most critical examination of McNagh

exclude the doctrine of "irresistible impulse" as a defense is further shown by the fact that Lord Denman was one of the judges who helped to formulate the rules of McNaghten's Case. As Lord Chief Justice of the court of Queen's Bench in the case of Reg. v. Oxford, 9 Car. & P. 525, he had

"If some controlling disease was in truth the acting power within him, which he could not resist, then he will not be responsible."

Having such views, if he had thought the rules in McNaghten's Case conflicted with same, he would doubtless have so expressed himself in a separate opinion. Yet in the opinion of the Alabama court these answers excluded the doctrine of irresistible impulse, for, says that court:

"One of the rules in McNaghten's Case ignores the possibility of crime being committed under the duress of insane delusion."

The judges did not ignore the doctrine of irresistible impulse, but simply did not decide that question because they were not asked to decide it. Therefore we reach the conclusion that this criticism by the Alabama court of the rules in McNaghten's Case is wholly without merit.

Speaking of this phase of the decision of the Alabama court, Mr. Stewart, in his work on Legal Medicine, p. 411, says:

"A careful reading of the opinion of the judge in this case shows that it depends mainly for its support upon the views expressed by writers on medical jurisprudence, who in most cases write from the standpoint of the physician, and that the authorities cited from the decision of other courts are mainly criticisms of the rule or attempts by words rather than by principles to escape a strict application of the rule in a particular case. *This case does not state the law as it is announced by the great majority of the courts in this country and in England."

*

* *

About 1676 Sir Matthew Hale had said: "There is a partial insanity of mind, and a total insanity. * Some persons that have a competent use of reason in respect of some subjects are yet under a partial dementia in respect of some particular discourses, subjects, or applications, or else it is partial in respect or degrees." 1 Hale's Pleas of the Crown, c. 4, p. 30.

In 1838 Dr. Esquirol, a celebrated French alienist, introduced the term "monomania" to denote a class of the insane who were supposed to be alienated only on one idea. The intellectual disorder described by him was confined to a single object, or to a limited number of objects, and "apart from this disorder these patients think, reason, and act like other men." 1 Wharton & Stille's Medical Juris. p. 822.

Accepting the high authority of one of the members of their own profession (Dr. Esquirol, the distinguished alienist), it does not seem that the physicians had seriously, if at all, challenged the existence of partial insanity or monomania in 1843 when the rules of McNaghten's Case were announced. Thus the view had obtained for about 170 years. Therefore the House of Lords assumed as an established scientific fact that there was such

partial insanity or monomania, and hence one of the questions propounded to the judges:

"What is the law respecting alleged crimes committed by persons afflicted with insane delusion, in respect of one or more particular subjects or persons?"

Of course, as all good judges should do, they confined their answers closely to the questions propounded.

As early as 1828 Lord Lyndhurst announced in Dew v. Clarke, 5 Russ. Chy. 164-167, that, "to be sane, the mind must be perfectly sound; otherwise it is unsound." And in 1848 Lord Brougham, in Waring v. Waring, 13 English Reports (6 Moore) 342, repudiated the doctrine of the existence of partial insanity or monomania, and treated the mind as an integer. He says:

"For we must keep always in view that which the inaccuracy of ordinary language inclines us to forget, that the mind is one and indivisible. *** If the being, or essence, which we term the mind is unsound on one subject, it is quite erroneous to suppose such a mind really sound on other subjects."

Again:

"But the malady is there, and as the mind is one and the same, it is really diseased, while apparently sound, and really its acts, whatever appearance they may put on, are only the acts of a morbid or unsound mind."

Modern psychiatry, say certain of the doctors, has demonstrated that the theory of Lords Lyndhurst and Brougham is correct.' But, while discarding the old idea and the old terms of "partial insanity" and "monomania," the physicians who have written treatises on the subject of Medical Jurisprudence nevertheless recognize the fact that there is a disease of the mind characterized by systematized delusions concerning a single object or a limited number of objects. They have adopted the term "paranoia,” which, says Dr. Lloyd,

"has only lately come into general use in psychiatry for the special form of insanity here described. It was adopted as a protest against the further use of the word 'monomania' a term which has been so abused and misunderstood as to have lost many of its rights to exist.'

The learned author then proceeds to present a picture of what is meant by paranoia as follows:

"This form of insanity is characterized by systematized delusions such as have been de scribed, but these delusions present themselves in a particular manner of evolution."

He then describes the stages of the disease, and the description shows that the victim of the disease in its first stage, although possessed of delusions, may still be able to control his actions with reference to those delusions. His general power of self-control has not yet been destroyed. Hence the rule that such a one must be considered, so far as the administration of the criminal law is concerned, in the same situation as to responsibility

as if the facts with reference to his delusion were real. 1 Wharton & Stille's Med. Jur. p. 827, §§ 1031, 1031a.

For all practical purposes it is wholly immaterial whether "the partial insanity" of Sir Matthew Hale, the "monomania" of Dr. · Esquirol, or the "paranoia" of the modern psychiatrist be used to describe that disease or condition of the mind characterized by systematized delusions concerning a single