stated that a strict application of the rules would have hanged more than half the women in his asylum for the murder of their children. It would be possible to extend indefinitely this review of persons whom no reasonable man would hold responsible for their acts, and are yet technically considered responsible by the Criminal Courts. The inconsistency appears to be due to certain fundamental psychological errors held by the learned judges who framed the Macnaghten rules. Without raising contentious points about determinism and the freedom of the will, one may well object in the first place to awareness of certain facts being made the one test of responsibility. Did the prisoner know the nature and quality of the act? Did he know that the law or his fellow citizens considered it wrong? Now, this is not the meaning of responsibility in common speech. One does not consider a man responsible for his acts unless he can reason normally about material facts as well as perceive them. Indeed, this is clearly recognized by the criminal law in the case of children under seven whose knowledge of fact is not deemed relevant as their reason and judgment are assumed not to be developed, and by the civil law in the case of lunatics for whom certification under the Lunacy Act does not depend in the least on what they know or do not know, but on the unreasonableness of their conduct. But the Macnaghten rules exclude all disease of the mind, however profound, which does not interfere with the perception of certain specific facts, though it may have completely overthrown the balance of reason. Secondly, the judges would appear to have misunderstood the nature of partial insanity and the significance of delusions. Misled by loosely expressed medical theories as to "monomaniacs which were rife at the time of the Macnaghten trial, they evidently concluded that the insane person could fairly be treated as sane except on the exact points on which he expressed delusions. The answer to the fourth question even embodies the crowning absurdity of advising that a criminal who commits an offence under the influence of a delusion must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real." That is to say, the unhappy lunatic is expected to be able to reason sanely on the very point on which he is ex hypothesi insane. The delusions themselves the judges seem to have conceived as burrs stuck on the surface of the brain, too tightly adherent to be shaken off, but in no way affecting or affected by the brain itself. They missed the essential fact that a delusion is of importance not so much as a gross misapprehension of fact, but as an indication that the patient's reasoning has broken down, and he can no longer think on certain matters like a normal man. And where the reason has failed on one point, it is quite impossible to tell when or where or how it will fail again, or how the judgment and conduct will be affected. It is common knowledge that delusions are frequently concealed and are rarely single, that if the conduct of a deluded individual is examined carefully aberrations from the normal will certainly be found. Much nonsense has been talked about lunatics who are "sane on every other point except one." This means little more than that they talk sanely on other topics and are capable of carrying on normally certain activities of life, mostly of a routine nature. But no alienist of experience would appoint as trustee or leave as guardian of his children a solicitor who gravely informed him that he had a crocodile in his inside, even though that gentleman exhibited no other aberrations whatever. The modern intensive study of the insane has shown the wisdom of a warning uttered by Dr. Mercier long ago that “ we can never be sure how far the penumbra of a man's insanity extends." Even where a partially insane" person shows deliberate malice and cunning in the commission of a crime, it is impossible to be sure that these qualities are not symptoms of his disease, springing from the same hidden source as an apparently unrelated delusion. Based on such grave misconceptions as they were, it is inevitable that the rigid application of the Macnaghten rules should produce results in the criminal law out of harmony with the civil law standards of insanity, and indeed with its own fundamental principle which requires a mens rea as an essential ingredient of a crime. A dispassionate consideration of the records of the Criminal Courts for the past half-century would show that a harsh and narrow rule would be still more out of harmony with public conceptions of justice. It is demonstrably neither the purpose nor the practice of the English people to hang lunatics, and in fact it is many years since a person whose sanity the records leave seriously in doubt has been executed.' It is true that there has been no con 1 C.Ap.R., 1909, p. 89, R. v. Perry, R. v. Jones, C.Ap.R., 1910, p. 207, are the two most debatable examples in recent years of the failure of a defence of insanity. Perry had undoubtedly suffered from epilepsy with mental symptoms earlier in his life, but his own story negatived the suggestion of automatism." He was sane when arrested, and he supplied the prison officials with a complete account of the crime and a reasoned explanation of his acts, explaining that he killed his first victim to rob her and his three subsequent victims to facilitate attempts at escape. Victor Jones presented a more difficult problem, as the facts were very scanty. But tinuous development of legal or public opinion on the matter. In all ages there have been sentimentalists whose detestation of horrible crime has rendered them incapable of calm contemplation of the criminal,' and logicians like Smollett and Archbishop Whately, who held that persons with less than human reason have no claim to treatment as human beings. But since the days of Coke, who wrote that "It is a sorry spectacle to see a madman hang," a succession of the highest legal authorities have supported his view (Blackstone, Mansfield, Henry Erskine, Lindley and others). Since 1843 it is notorious that judges have adopted one device after another in an endeavour to reconcile the Macnaghten tests with common sense and humanity in the actual case before them for trial. Mr. Justice Stephen habitually took the bold course of assuming that the judges who framed the tests meant what his acute brain divined they ought to have meant." You will probably see," he said to the jury at the trial of David Davies (an epileptic murderer) in 1888, "that knowing that the act is wrong means nothing more nor less than the power of thinking about it as a sane man would think about it, the power of attaining to a full conception of the horrible guilt there would be in a murder. That is the law as I understand it, which by guilt implies the power of discriminating between right and wrong; that is the test of responsibility." It must be doubted, however, if all that the learned judge suggested can legitimately be read into the phrase "knowledge of right and wrong," and it was certainly not so intended by its authors. Other judges have gone even further. In the trial of a man Brocklehurst in 1884, the Counsel for the prosecution suggested that the question for the jury was whether the prisoner was capable of "appreciating the difference between right and wrong," Mr. Justice Cave replied, "No, the question is whether he was insane at the time." In recent years, Mr. Justice Bray in R. v. Fryer and R. v. Hay, Darling J. in R. v. Jolly, McCardie J. in R. v. True have supplemented the two stereotyped questions by asking the jury whether the prisoner had "by mental disease been deprived of the power to control his actions,” a vague the evidence of previous mental abnormality was very slender, he was sane in prison and there was a strong motive of normal sex jealousy. 1 See trials of Arnold, Earl Ferrers, T. Bowler, Bellingham, Jefferson (all of whom were certifiably insane), and the correspondence in The Times, May and June 1922, on the True case. See also his charge to the jury in case of Willam Burt, Norwich, November 1885, and History of Criminal Law, vol. ii, p. 165. phrase which might if literally interpreted include all forms of certifiable insanity. Even where the tests as embodied in the Macnaghten rules have not been literally varied, it has become increasingly the practice for judges to direct the juries' attention to the prisoners' insanity, where that has been established by medical evidence, rather than to the formal tests. Indeed, whatever views are held in theory about "partial insanity" and the possible responsibility of insane persons for their acts, they are apt to crumble before a concrete case. It is recorded that the last woman executed for witchcraft in these islands was a demented old hag in the North of Scotland, who warmed her hands gleefully at the fire lit to consume her, and chuckled to see the bonny blaze." Modern nerves are weaker. It is submitted that no jury would now deliberately send a man with definite symptoms of insanity to the gallows, and no Home Secretary would allow an insane man to go to execution. The English Law has come very close in practice to the simple terms of the French Code: "There can be no crime or offence if the accused was in a state of madness at the time.' What the Court really wants to know is whether the prisoner did the act with which he is charged under the influence of insanity or not. It is difficult to see why the question should not be put to the jury directly in this direct form as a plain question of fact, all technical and irrelevant psychological tests being eliminated. By using the term 'insanity" the great army of neurotics, hysterics, psychosthenics, neurasthenics, and others of the mentally abnormal who are yet capable of self-control would be excluded, as it is certainly desirable that they should be. But medical practitioners who have now to estimate, according to their skill, a patient's responsibility for his actions for the purpose of certification under the Lunacy Acts, would find their task of advising a Criminal Court immensely simplified if the same standard could be accepted by the criminal as by the civil law. Removal of the existing patent incongruities would enhance the dignity of English jurisprudence and in no way weaken the deterrent effect of the law on such criminals who are capable of being deterred. The verdict "Guilty, but insane" carries terrible and permanent consequences, but such mercy as it brings should be available for every criminal for whom its words imply that it is intended. " THE CANADIAN CONSTITUTION AND COMPANY [Contributed by PROFESSOR BERRIEDALE KEITH, D.C.L.] The Complexity of the Issue.-Discussion is still as active as ever in Canada on the problem of company legislation as affected by the constitutional powers of the Dominions and the Provinces. The framers of the British North America Act could not foresee the development of the creation of companies nor the manifold ramifications of their business, and thus they left wholly ambiguous the powers of the federation and the local governments in this regard. The Judicial Committee has by a series of recent decisions elucidated many of these points, but not, in the opinion of Canadian lawyers, without creating other and not less serious difficulties, which nothing except an amendment of the British North America Act can remove. But to such a consummation there is opposed the grave difficulty of securing agreement between the Dominion and the Provinces which is a constitutional necessity for any alteration of the federal pact. The Dominion and the Provincial Governments unfortunately are inclined to insist on their own rights rather than to unite in the evolution of a system more adapted to modern conditions, and apart from such feelings there are perfectly real difficulties in the way of any effective solution. Dominion Powers of Incorporation.-The Dominion's authority to incorporate companies under s. 91 of the British North America Act is of two distinct kinds. In the first place it can incorporate companies to deal with matters which fall within its exclusive specific powers, such as companies for navigation and shipping, sea coast and inland fisheries, or such works as are by s. 92 (10) excluded from the sphere of the authority of the Provinces. The paramount character of this legislation is shown by the decision in La Compagnie hydraulique v. Continental Heat and Light Company, in which it was 1 See last H. G. Garrett, Can. Law Times, vol. xlii, pp. 466 ff., 531 ff., 583 ff. |