law is a defense. For example, when a man indicted for robbery in taking a pheasant from the game warden, alleged that he supposed the game to belong to himself, the court held, that his belief that he had a right to take the property prevented the taking from being robbery (23).

§ 47. Infancy as a defense. From the earliest records of the common law it has been an established rule that an infant is not liable criminally for his acts until he has attained sufficient discretion to know right from wrong. As to all infants under seven years the rule has always been that the law conclusively presumes insufficient discretion to make the infant liable criminally for any act of any kind; but as to infants above that age and under the age of 14 the rule has been that the infant is liable criminally if it appears that he had sufficient discretion to know right from wrong; and in the older cases the courts were more willing to find a mischievous discretion than they are at the present time. Above the age of 14 there is a presumption that the infant has sufficient discretion to know the nature of his act and make him liable criminally.

§ 48. Idiocy and dementia as defenses. Persons above 14 years of age are presumed to know right from wrong; but if it appears that they have not the discretion of an average child of 14 they are not accountable criminally for their acts. Of course the immature intellect of a healthy child does not bear exact comparison with the stunted intellect of the simple adult or the imbecile.

(23) Rex v. Hall, 3 C. & P. 409.

§ 49. Intoxication as a defense. Intoxication may blind the reason and exasperate the passions; and yet, as a man voluntarily brings it upon himself, he cannot use it as an excuse, justification, or extenuation of his crime. It has even been said that he should be more severely punished because of exposing himself to a condition in which he may injure himself or others. Yet where the question is sufficiency of provocation the fact that the defendant was intoxicated may be proved for the purpose of showing that he was more excitable and more liable to anger. Again where the question is whether the act was done with a specific purpose or deliberately and premeditatedly, the fact that the accused was intoxicated may be proved to show that he had no ability at the time to comprehend or deliberate.

§ 50. Insanity as a defense: The early decisions. The nature of diseases of the mind was very imperfectly understood when insanity was first set up as a defense in criminal cases; and the advance which science has made in the past two hundred years in this direction has exploded many theories concerning this subject. Time was in the history of our law when the veriest lunatic was not permitted to plead his providential affliction as a defense to his contracts. It was said in justification of so absurd a rule that no one could be permitted to stultify himself by pleading his own disability. So great a jurist as Lord Coke, in his attempted classification of madmen, laid down the rule of criminal responsibility to be that one should wholly have lost his memory and understanding; as to which Mr. Erskine, when defending Hadfield for

shooting the King, in 1800, A. D., justly observed: "No such madman ever existed in the world." After this great and historical case, the existence of delusion promised for awhile to become the sole test of insanity, and, acting under the duress of such delusion, was recognized in effect as the legal rule of responsibility. Lord Kenyon, after ordering a verdict of acquittal in that case, declared with emphasis that there was "no doubt on earth" that the law had been correctly stated in the argument of counsel. But as it was soon discovered that insanity often exists without delusions, as well as delusions without insanity, this rule was also abandoned. Lord Hale had before declared that the rule of responsibility was measured by the mental capacity possessed by a child of fourteen years; and other judges had ventured to decide, that to be irresponsible for crime a man must be totally deprived of his understanding and memory, so as not to know what he was doing, any more than an infant, a brute, or a wild beast. All these rules have necessarily been discarded in modern times, in the light of the new knowledge acquired by a more thorough study of the disease. Later the test was held to consist of a knowledge that the crime committed was "against the laws of God and nature", thus meaning an ability to distinguish between right and wrong in the abstract.

§ 51. Insanity: The right and wrong test. For over half a century, in England and in most of the American states, the test of responsiblity of insane criminals has been their ability to distinguish between right and wrong as applied to the particular case. This is the rule as laid

down in the celebrated McNaughten's Case in the English House of Lords in 1843 (24). This rule is thus stated by Chief Justice Shaw in a Massachusetts case: "A man is not to be excused from responsibility, if he has capacity and reason sufficient to enable him to distinguish between right and wrong as to the particular act he is then doing a knowledge and consciousness that the act he is doing is wrong and criminal, and will subject him to punishment. In order to be responsible, he must have sufficient power and memory to recollect the relation in which he stands to others, and in which others stand to him; and that the act he is doing is contrary to the plain dictates of justice and right, injurious to others and a violation of the dictates of duty. On the contrary, although he may be laboring under partial insanity, if he still understands the nature and character of his act, and its consequences; if he has a knowledge that it is wrong and criminal, and a mental power sufficient to apply that knowledge to his own case, and to know, that if he does the act he will do wrong and receive punishment, such partial insanity is not sufficient to exempt from responsibility from criminal acts" (25).

§ 52. Insanity: Irresistible impulse. The opportunities for observation of insane persons by medical experts in our modern insane asylums have shown that there are forms of insanity in which the afflicted person does not labor under any delusion, realizes the criminal nature of his act, and yet is driven by irresistible impulse of his

(24) 10 Clark & Fin. 200.

(25) Commonwealth v. Rogers, 7 Metc. 500.

affliction to do what he would gladly avoid doing; and it has been claimed justly and logically enough that if a person is in such a condition and does a criminal act by force of this irresistible impulse he should not be punished criminally for it. But the defense of insanity is so liable to abuse and so frequently resorted to as a defense of last resort, that the courts have been loathe to allow it in such cases. In one case the judge said: "It has been urged for the prisoner that you should acquit him, on the ground that, it being impossible to assign any motive for the perpetration of the offense, he must have been acting under what is called a powerful and irresistible influence of homicidal tendency. But I must remark, as to that, that the circumstance of an act being apparently motiveless is not a ground from which you can safely infer the existence of such an influence. Motives exist, unknown and innumerable which might prompt the act. A morbid and restless (but resistible) thirst for blood would itself be a motive urging to such a deed for its own relief; but if an influence be so powerful as to be termed irresistible, so much the more reason is there why we should not withdraw any of the safeguards tending to counteract it. There are three powerful restraints existing, all tending to the assistance of the person who is suffering under such an influence the restraint of religion, the restraint of conscience, and the restraint of law. But if the influence itself be held a legal excuse, rendering the crime dispunishable, you at once withdraw a most powerful restraint-that forbidding and punishing its perpetration. We must therefore return to the