This ancient doctrine received its first serious shock in Hadfield's case, 27 id. 1281, 1311, in which Erskine, for the defence, ad mitted the language used by Coke and Hale as to requiring deprivation of memory and understanding to absolve from crime, but contended that, if taken literally, the words would apply to idiocy alone. He insisted that "of all the cases that have filled West minster Hall with complicated considera tions, the insane persons have not only had the most perfect knowledge and recollection of all the relations in which they stood to wards others, and of the acts and circum stances of their lives, but have, in general, been remarkable for subtlety and acuteness ; and that delusion of which the criminal act in question was the immediate unqualified offspring, was the kind of insanity which should rightly exempt from punishment." These views prevailed and Lord Kenyon held that the prisoner was deranged immediately prior to the act and that it was unlikely that he had meanwhile recovered, though, strictly speaking, proof might be required of his condition at the very moment of the shooting ; accordingly the prisoner was ac quitted with the approbation of the court. Subsequently, in Bellingham's case, 1 Col linson, Lun. 636 ; Shelf. Lun. 462, Lord Mansfield held that it must be proved that the prisoner was incapable of judging be tween right and wrong ; that at the time of the act he did not consider that murder was a crime against the laws of God and nature; and that there was no other proof of insani ty which would excuse crime. Similar lan guage was used in Parker's case, Collin. Lun. 477; Higginson's case, 1 C. & K. 129; Stokes' case, 3 C. & K. 185, and so for about a generation the law of England was practi cally as settled by Hadfield's and Belling ham's cases, though there were occasional variations from it. The special feature of the law of that period was that, to make a person responsible for crime, there must be a knowledge of right and wrong in the ab stract. But the tendency of the cases was towards the modification of the test, so as to make the knowledge of right and wrong refer solely to the act in question; 5 C. & P. 168; 9 id. 525 ; 1 Cox, Cr. Cas. 80 ; 3 id. 275. This was pronounced to be the law by the English judges, in their answer to the questions propounded to them by the House of Lords on the occasion of the McNaghten trial, 10 Cl. & F. 200, where it was said by Tindal, C. J., for himself and the other judg es: "To establish a defence on the ground of insanity, it must be clearly proved that at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature or quality of the act he was doing; or, if he did know it, that he was not aware he was doing what• was wrong." Most of the English cases will be found in 1 Russ. Cr., Shars. ed. 14, and in the notes will be found a collection of Amer ican cases.
The test laid down in McNaghten's case has been generally applied in England and this country. In the former it has been definitely recognized as the law, and in the latter it has been generally adopted, though with frequent variations, as will appear infra.
As to the answers of the judges, Sir J. F. Stephen (3 Hist. Cr. L. 154) has stated his opinion that their authority is questionable, adding that he "knows that some of the most distinguished judges on the bench have been of the same opinion"; he also observes that they "leave untouched the most difficult ques tions connected with the subject." It ap pears that, since that case, neither the Court for Crown Cases Reserved nor any other English court in bane has delivered a con sidered written opinion on the subject.
In Coleman's case, in New York, Davis, J., charged the jury that the "test of the responsibility for criminal acts, when in sanity is asserted, is the capacity of the ac cused to distinguish between right and wrong at the time and with respect to the act which is the subject of inquiry," He left it to the jury to determine "whether or not at the time the accused committed the act she knew what she was doing, and knew that in shooting him she was doing a wrongful act." 1 N. Y. Cr. Rep. 1. With
variations of expression this is the prevail ing doctrine of the American courts ; Mutual Life Ins. Co. v. Terry, 15 Wall. (U. S.) 590, 21 L. Ed. 236; People v. Pico, 62 Cal. 50; State v. Windsor, 5 Harring. (Del.) 512; State v. Danby, 1 Houst. Cr. Cas. (Del.) 166; State v. West, id. 371; Humphreys v. State, 45 Ga. 190; Westmoreland v. State, id. 225; State v. Lawrence, 57 Me. 574 ; State v. Mahn, 25 Kan. 182; U. S. v. Faulkner, 35 Fed. 730; Com. v. Heath, 11 Gray (Mass.) 303 ; Cunningham v. State, 56 Miss. 269, 21 Am. Rep. 360; People v. Finley, 38 Mich. 482; State v. Shippey, 10 Minn. 223 (Gil. 178), 88 Am. Dec. 70; State v. Erb, 74 Mo. 199; State v. Kotovsky, 74 Mo. Hawe v. State, 11 Neb. 537, 10 N. W. 452, 38 Am. Rep. 375 ; State v. Spencer, 21 N. J. L. 196 ; State v. Brandon, 53 N. C. 463; Thomas v. State, 40 Tex. 60; Dove v. State, 3 Heisk. (Tenn.) 348; Dunn v. People, 109 Ill. 635; State v. Alexander, 30 S. C. 74, 8 S. E. 440, 14 Am. St. Rep. 879; Com. v. Winnemore, 1 Brewst. (Pa.) 356 ; Com. v. Mosier, 4 Pa. 264; U. S. v. Shults, 6 McLean, 121, Fed. Cas. No. 16, 286 ; Walker v. People, 88 N. Y. 86 ; Loeffner v. State, 10 Ohio St. 599. In many of the cases it is difficult to distinguish with cer tainty between what the court intends for a statement of the law and what is rather in the nature of practical suggestions addressed to the jury. In a New Hampshire case it was held that no one of the circumstances ordinarily relied upon is, as a matter of law, a test of mental.disease, but that all symp toms and all tests of mental disease are pure ly matters of fact to be determined by the jury ; State v. Pike, 49 N. H. 399, 6 Am. Rep. 533 ; and the same doctrine has been fol lowed in other states; Hopps v. People, 31 Ill. 385, 83 Am. Dec. 231; Bradley v. State, 31 Ind. 492; Stevens v. State, 31 Ind. 485, 99' Am. Dec. 634. Very similar were the re marks addressed to the jury by the Lord Jus= tire Clerk in a Scotch Justiciary case: "The question is one of fact, that matter of fact being whether when he committed this crime the prisoner was of an unsound mind. The counsel for the crown very properly said that this was entirely for you. It is not a question of medical science, neither is it one of legal definition, although both may ma terially assist you. It is a question for your common and practical sense." 3 Cow per 16.
It was said that mental unsoundness, to render one free from criminal liability, must be such on the particular subject out of which the acts charged as an offence are claimed to have sprung, as to render him incapable of discerning the wrong of com mitting the same; U. S. v. Faulkner, 35 Fed. 730; Kearney v. People, 11 Colo. 258, 17 Pac. 782. Occasionally the court has thought it sufficient for the jury to consider whether the prisoner was sane or insane,—of sound memory and discretion, or otherwise; see State v. Cory, State v. Prescott, in Ray, Med. Jur. 55. The capacity to distinguish between right and wrong has been held not to be a safe test in all Cases; State v. Felter, 25 Ia. 67, per Dillon, C. J.; Mutual Life Ins. Co. v. Terry, 15 Wall. (U. S.) 580, 21 L. Ed. 236. See also Brown v. Com., 78 Pa. 122. In Whart. & St. Med. Jur. § 120, this test is said to be generally satisfactOry, but not to cover all cases. An instruction has been sustained, where there was a defence of insanity, that the defendant was not responsible unless he was conscious of his act at the time it was committed ; People v. Clendennin, 91 Cal. 35, 27 Pac. 418.