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asked and answered, though the witness has never seen the person before the trial, and though he has been present and heard the witnesses; these circumstances, of his never having seen the person before, and of his having been present at the trial, not being necessarily sufficient, as it seems to me, to exclude the lawfulness of a question which is otherwise lawful, though I will not say that an inquiry might not be in such a state as that these circumstances should have such an effect.
Supposing there is nothing else in the state of the trial to make the questions suggested proper to be asked and answered, except that the witness had been present and heard the evidence, it is to be considered whether that is enough to sustain the question. In principle it is open to this objection, that as the opinion of the witness is founded on those conclusions of fact which he forms from the evidence, and as it does not appear what those conclusions are, it may be that the evidence he gives is on such an assumption of facts as makes it irrelevant to the inquiry. But such questions have been very frequently asked, and the evidence to which they are directed has been given, and has never, that I am aware of, been successfully objected to. Evidence, most clearly open to this objection, and on the admission of which the event of a most important trial probably turned, was received in the case of The Queen v. M.Naughten, tried at the Central Criminal Court in March last, before the lord chief justice, Mr. Justice Williams, and Mr. Justice Coleridge, in which counsel of the highest eminence were engaged on both sides; and I think the course and practice of receiving such evidence, confirmed by the very high authority of these judges, who not only received it, but left it, as I understand, to the jury without any remark derogating from its weight, ought to be held to warrant its reception, notwithstanding the objection in principle to which it may be open. In cases even where the course of practice in criminal law has been unfavorable to parties accused, and entirely contrary to the most obvious principles of justice and humanity, as well as those of law, it has been held that such practice constituted the law, and could not be altered without the authority of Parliament."
LORD CHIEF JUSTICE TINDAL." My lords, her majesty's judges, with the exception of Mr. Justice Maule, who has stated his opinion to your lordships, in answering the questions proposed to them by your lordships' house, think it right, in the first place, to state that they have forborne entering into any particular discussion upon these questions, from the extreme and almost insuperable difficulty of applying those answers to cases in which the facts are not brought judicially before them. The facts of each particular case must of necessity present themselves with endless variety, and with every shade of difference in each case, and as it is their duty to declare the law upon each particular case, on facts proved before them, and after hearing argument of counsel thereon, they deem it at once impracticable, and at the same time dangerous to the administration of justice, if it were practicable, to attempt to make minute applications of the principles involved in the answers given by them to your lordships' questions.
They have, therefore, confined their answers to the statement of that which they hold to be the law upon the abstract questions proposed by your lordships; and as they deem it unnecessary, in this peculiar case, to deliver their opinions seriatim, and as all concur in the same opinion, they desire me to express such their unanimous opinion to your lordships.
"The first question proposed by your lordships is this: What is the law respecting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons; as, for instance, where, at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit?'
"In answer to which question, assuming that your lordships' inquiries are confined to those persons who labor under such partial delusions only, and are not in other respects insane, we are of opinion, that notwithstanding the party accused did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable, according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law, by which expression we understand your lordships to mean the law of the land.
"Your lordships are pleased to inquire of us, secondly: What are the proper questions to be submitted to the jury, where a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons is charged with the commission of a crime (murder, for example), and insanity is set up as a defense?' And, thirdly: In what terms ought the question to be left to the jury as to the prisoner's state of mind at the time when the act was committed?' And as these two questions appear to us to be more conveniently answered together, we have to submit our opinion to be, that the jury ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused at the time of doing the act knew the difference between right and wrong; which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put generally, and in the abstract, as when put with reference to the party's knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused, solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction; whereas the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course, therefore, has been, to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong; and this course, we think, is correct, accompanied with such observations and explanations as the circumstances of each particular case may require.
"The fourth question which your lordships have proposed to us is this: 'If a person under an insane delusion as to existing facts commits an offense in consequence thereof, is he thereby excused? To which question the answer must of course depend on the nature of the delusion; but, making the same assumption as we did before, namely, that he labors under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defense, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.
"The question lastly proposed by your lordships is: 'Can a medical man, conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act that he was acting contrary to law, or whether he was laboring under any and what delusion at the time?' In answer thereto, we state to your lordships, that we think the medical man, under the circumstances supposed, can not in strictness be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide, and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted, or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same can not be insisted on as a matter of right."
ABANDONMENT of right gained by pre- | Accroaching royal power, iv., 76.
scription, ii., 9, n., 264, n.
Abatement, iii., 167.
Abortion, attempting to produce, iv.,
when action may be brought for matter
Absolute power of the crown, i., 250.
before the fact, iv., 36, 39, n.
when a defense, iii., 32, n.
books of, when evidence, iii., 368.
Accumulation of income, i, 174, n.
Acquittance for money or goods, forgery
Act of bankruptcy, ii., 417.
how enrolled, i., 182, n.
when binding on the crown, i., 261.
endeavor to repeal, when treason, iv.,
Action at law, iii., 116.
feodal, iii., 117.
mixed, iii., 118.
Action, when may be brought for matter
Action, limitation of right to bring, ii.,
what rights of action may not be aliened,
chose in, ii., 396; iv., 411.
Additions, i., 407; iii., 302.
Adjournment of Parliament, i., 186.
has jurisdiction as to prizes, iii., 68, n.,
trial of offenses in, iv., 268, 269.
alimony not allowed in case of divorce
action of trespass, or on the case, may
Adverse possession, ii., 266, n.
liability of, for negligence or want of
appendant or in gross, ii., 22.
right of presentation before and after
Jew may present, papist can not, ii.,
of municipal corporation, ib.
presentative, collative, or donative, ii.,
donative, how destroyed, ii., 23.
prerogative presentation, ii., 24, n.
limitation to actions for, iii., 25, n.
Aggregate fund, i., 331.
of consent to marry, i., 436.
of persons, when material in criminal
Agents, embezzlement by, iv., 231, n.
Agnus Dei, &c., iv., 115.
simony, ii., 278, et seq.
courtesy of, ii., 127.
denization and naturalization, 249.
limitation of right to, ii., 266, n.
fines for, ii., 71; iv., 418.
specific performance of, iii., 435, 438.
Air, right to, ii., 14, 266, n. See "Ease-
his Dome-book, i., 64, 66, 114; iv., 411.
descent through, ii., 226, n.
disabilities of, in respect of purchasing
who may alien and to whom, ii., 290.
of rights of action, &c., ii., 290.
by devise, ii., 373.
by special custom, ii., 365.
disabilities of, i., 371.
none allowed in case of divorce for
Allegiance, i., 366; iv., 74.