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independent replies. The answers to those questions are commonly called “The Rules in Macnaughton’s case,” and they still nominally contain the law of England as to the criminal responsibility of the insane. The points affirmed by the Rules that must be noted here are the propositions that knowledge of the nature and quality of the particular criminal act, at the time of its commission, is the test of criminal responsibility, and that delusion is a valid exculpatory plea, when, and only when, the fancies of the insane person, if they had been facts, would have been so. The Rules in Macnaughton’s case are open to serious criticism. They ignore, at least on a literal interpretation, those forms of mental disease which may, for the present purpose, be roughly grouped under the heading “moral insanity,” and in which the moral faculties are more obviously deranged than the mental—the affections and the will, rather than the reason, being apparently disordered. The test propounded with reference to delusions has also been strenuously attacked by medical writers, and especially by Dr Maudsley in his work on Responsibility in Mental Disease, on the ground that it first assumes a man to have a delusion in regard to a particular subject, and then expects and requires him to reason sanely upon it. It may be pointed out, however, that in thus localizing the range of the immunity which insane delusion confers, the criminal law is merely following the course which, mutatis mutandis, the civil law has, with general acceptance, adopted in questions as to the contractual and testamentary capacity of the insane.

The Rules in Macnaughton’s case have, as regards moral insanity, undergone considerable modification. Soon after they were laid down, Sir (then Mr) James Fitz-James Stephen, in an article in the Juridical Papers, i. 67, on the policy of maintaining the existing law as to the criminal responsibility of the insane, foreshadowed the view which he subsequently propounded in his History of the Criminal Law, ii. 163, that no man who was deprived by mental disease of the power of passing a fairly rational judgment on the moral character of an act could be said to “know” its nature and quality within the meaning of the Rules; and it has in recent years been found possible in practice so to manipulate the test of the criminal responsibility which they prescribed as to afford protection to the accused in the by no means infrequent cases of insanity which in its literal interpretation it would leave without excuse.

In Scotland the Rules in Macnaughton’s case are recognized, but, as in England, there is a tendency among judges to adopt a generous construction of them. Mental unsoundness insufficient to bar trial, or to exempt from punishment, may still, it is said, be present in a degree which is regarded as reducing the offence from a higher to a lower category,—a doctrine first practically applied in Scotland, it is believed, in 1867 by Lord Deas; and the fact that a prisoner is of weak or ill-regulated mind is often urged with success as a plea in mitigation of punishment. The Indian Penal Code (Act XLV. of 1860, § 84) expressly adopts the English test of criminal responsibility, but the qualifications noted in the case of Scotland have received some measure of judicial acceptance (see Mayne, Crim. Law Ind., 3rd ed., pp. 403-419; Nelson, Ind. Pen. Code, 3rd ed., pp. 135 et seq.). The Rules in Macnaughton’s case have also been adopted in substance in those colonies which have codified the criminal law. The following typical references may be given: 55 and 56 Vict. (Can.) c. 29, § 11; 57 Vict. (N.Z.), No. 56 of 1893, § 23; No. 101 of 1888 (St Lucia), § 50; No. 5 of 1876 (Gold Coast), § 49 (b); No. 2 of 1883, art. 77 (Ceylon); No. 4 of 1871, art. 84 (Straits Settlements). On the other hand, a departure towards a recognition of “moral insanity” is made by the Queensland Criminal Code (No. 9 of 1899), § 27 of which provides that “a person is not criminally responsible for an act” if at the time of doing it “he is in such a state of mental disease ... as to deprive him ... of capacity to control his actions”: and the law has been defined in the same sense in the Cape of Good Hope in the case of Queen v. Hay (1899, 16 S.C.R. 290). The Rules were rapidly reproduced in the United States, but the modern trend of American judicial opinion is adverse to them (see Clevenger, Med. Jur. of Ins. p. 125; Parsons v. State (1887) 81 Ala. 577). On the Continent of Europe moral insanity and irresistible impulse are freely recognized as exculpatory pleas (see the French Code Penal, § 64; Belgian Code Penal, § 71; German Penal Code, § 51; Italian Penal Code, §§ 46, 47).

Not only is insanity at the time of the commission of an offence a valid exculpatory plea, but supervening insanity stays the action of the criminal law at every stage from arrest up to punishment. High treason was formerly an exception, but the statute making it so (33 Hen. VIII. c. 20) was repealed in the time of Philip and Mary. The Home Secretary has power, under the Criminal Lunatics Act 1884 to order by warrant the removal of a prisoner, certified to be insane, to a lunatic asylum, before[1] trial or after trial, whether under sentence of death or not. Prisoners dealt with under these provisions are styled “Secretary of State’s lunatics.” On the other hand, a prisoner who on arraignment appears, or is found by the jury to be unfit to plead, or who is found “guilty but insane” at the time of committing the offence—a verdict substituted by the Trial of Lunatics Act 1883 for the old verdict of “acquitted on the ground of insanity,” in the hope that the formal conviction recorded in the new finding might have a deterrent effect on the mentally unstable—is committed to a criminal lunatic asylum by the order of the judge trying the case, to be detained there “during the king’s pleasure.” Lunatics of this class are called “king’s pleasure lunatics.” There was no doubt at common law as to the power of the courts to order the detention of criminal lunatics in safe custody, but, prior to 1800, the practice was varying and uncertain. On the acquittal of Hadfield, however, in that year for the attempted murder of George III., a question arose as to the provision which was to be made for his detention, and the Criminal Lunatics Act 1800, part of which is still in force, was passed to affirm the law on the subject.

The Criminal Lunatics Act contains provisions similar to those of the Lunacy Act 1890, as to the discharge (conditional or absolute) and transfer of criminal lunatics and the detention of persons becoming pauper lunatics. The expenses of the maintenance of criminal lunatics are defrayed out of moneys provided by Parliament (Crim. Luns. Act 1884, and Hansard, 3rd series, vol. ccxc. p. 75; 139 Com. Jo. pp. 336, 340, 344). The Lunatics’ Removal (India) Act 1851 provides for the removal to a criminal lunatic asylum in Great Britain of persons found guilty of crimes and offences in India, and acquitted on the ground of insanity. Similar provisions with regard to colonial criminal lunatics are contained in the Colonial Prisoners’ Removal Act 1884; and the policy of this statute has been followed by No 5. of 1894 (New South Wales), and Ordin. No. 2 of 1895 (Falkland Islands). Indian law (see Act V. of 1898, §§ 464-475) and the laws of the colonies (the Cape Act No. 1 of 1897 is a typical example) as to the trial of lunatics are similar to the English. In Scotland all the criminal lunatics, except those who may have been removed to the ordinary asylums or have been discharged, are confined in the Criminal Asylum established at Perth in connexion with H.M.’s General Prison, and regulated by special acts (23 & 24 Vict. c. 105, and 40 & 41 Vict. c. 53). Provision similar to the English has been made for prisoners found insane as a bar to trial, or acquitted on the ground of insanity or becoming insane in confinement. In New York, Michigan and other American states there are criminal lunatic asylums. Elsewhere insane criminals are apparently detained in state prisons, &c. The statutory rules as to the maintenance of criminal lunatic asylums, the treatment of the criminal insane, and the plea of insanity in criminal courts in America, closely resemble English practice.

  1. It has sometimes been stated that this power, which ought clearly, in the interests alike of prisoners and of the public, to be exercised with caution, is in fact exerted in an unduly large number of cases. The following figures, taken from the respective volumes of the Criminal Judicial Statistics, show the number of criminal lunatics certified insane before trial. In 1884-1885, out of a total of 938 criminal lunatics, 169 were so certified; in 1885-1886, 149 out of 890; in 1889-1890, 108 out of 926; in 1890-1891, 95 out of 900; in 1894, 78 out of 738; in 1895, 84 out of 757; in 1896, 88 out of 769; in 1897, 85 out of 764; in 1898, 17 out of 209; in 1899, 13 out of 159; in 1900, 12 out of 185; in 1901, 15 out of 205; in 1902, 7 out of 233; in 1903, 11 out of 229.