may seem wrong to choose a test of acts from thought which is partially dissociated from conduct. True, his thoughts do influence his acts, and his acts re-act upon his thoughts; still many men know the good and choose the evil; and if that choice is dictated either by bodily fear, or by what has been called the duress of disease, he ought certainly to be held irresponsible for the crime committed. To fill up the notion of a crime, you require not only the knowledge of good and evil, but the power to choose the one and refrain from the other. Responsibility implies free will. If there is no real volition, there is no real criminality. Looked at in that aspect the present test of insanity seems defective. It is not in conformity with the facts which are capable of observation by the mass of mankind, for it is certain that unless the legal test, at the same time that it supplies a means of discovering the health or disease of the cognitive faculties, supplies a means of discovering whether the individual whose insanity is in question, has the power to refrain from the wrong of which he is conscious, it would be open to numerous objections, and there would be the most obvious and pressing necessity for a revision and alteration of the law in this respect. An engineer might as well judge of the horse-power of a locomotive from examining the cylinder and the wheels, without looking at the boiler, as a jurist gauge the capacity simply by an acquaintance with the reasoning faculties. The engine will not run without steam; potential thought will not become actual thought without volition.

Now, although it does seem that the present test is unsatisfactory, I am inclined to believe that the seeming unsatisfactoriness is due rather to a misapprehension of the true meaning of the test, than to any inherent defect in the test itself. Those who censure it do not seem to have taken the trouble to ascertain what the test really is. It is sometimes an advantage in an argument to mistake your adversary's meaning, and refute your own misconstruction; and I believe that is what most medical men, and not a few lawyers, have done with reference to the test of insanity. The words of the judges' answer are these: "That before a plea of insanity should be allowed, undoubted evidence ought to be adduced that the accused was of diseased mind, and that at the time he committed the act he was not conscious of right and wrong." I think that any one who reads these words will be convinced that it is not the knowledge of right and wrong which one may speculatively entertain in calm moments which is meant to be the test of insanity, as so many persons seem to imagine, but that it is the active idea of right and wrong which a man has when thought is passing over into action that is relied upon as the distinguishing mark of sanity. These words do

not mean that a man's responsibility is to be judged of by his thorough understanding of the decalogue, or of his calm doubts as to the existence of a conscience. They mean that we are to judge by means of the principle of action; and I am so far from thinking that it is the intention of the law to make a speculative belief the test of insanity, that I regard these words as indicating an intention to make the capacity of doing or refraining, the power of choice between good and evil, the real test, and that it shows that such is its intention by the words "at the time he committed the act." The question to be left to the jury is not, Does he know right from wrong now? Does he possess a conscience? but did he at the time he committed the act know he was doing wrong? At such a time, speculative beliefs go for nothing. A man's closet-code is not that which he takes into the market-place, into the strife. We do not judge of a man's actions by what he thinks at home, but by what he does abroad. Are right and wrong present to his mind at the time he acts, or are they absent? If they are absent, his actions cannot be influenced by them: he has no choice; and that absence is due to disease. If that deprivation of moral scales is due to mental aberration, he is to be regarded as irresponsible. This knowledge of right and wrong, then, is the capacity which a man has at the particular moment of the deed of being influenced by motives, the power he has of refraining from the act in question. I believe that this construction is not only the obvious one, but that it will be found to be the meaning which has been almost invariably attached to these words by all the judges who have had to leave this question to the jury, and although cases may be pointed to in which injustice has been done by the verdict of the jury, I am convinced that these casualties are due only to the unseemly conflict which has existed between the medical testimony, and not to any difficulty in the rule of law. But it may not be inexpedient to explain my meaning more fully, and that may be done by means of an illustration. Suppose a man to be under the influence of bodily fear, and that a neighbour, with every appearance of malevolent intention, threatens to take his life, and holds a loaded pistol to his head, that man is, according to the law, justified in killing the neighbour who would have taken his life. It is self-defence. Now, at the moment, did the sane man whose life was threatened know right from wrong? The very proverb, "Necessity knows no law," indicates that extreme circumstances do away with all moral distinctions. All the man thought of was how to save his own life, and he did it. An instant afterwards the knowledge of right and wrong returns, and he stands there sane, and responsible for any act he may commit. Now, the case is almost precisely the same in the case of an insane man. Although

he may be perfectly cognizant of right and wrong, still the delusion that God commands him to set fire to the house, confounds and sets at naught all moral distinctions at the time. So a delusion that a man is going to take one's life may lead to a direr crime, from which, as in the case of duress above alluded to, the want of the knowledge of right and wrong at the time of the commission of the crime would be held to exempt the individual from the consequences of his act. Now, this may seem to some to bring the law back simply to a proof of the existence of insanity as a ground for exemption from punishment, for it may be argued that thus explained no criminal has a knowledge of right and wrong at the time the act was committed; but that is not the case. Every ordinary criminal is at the moment he commits the crime fully aware that he is doing wrong; but he calculates the chances; he thinks of the probability of his escaping detection; of the satisfaction of his desire for revenge or the like, and he is influenced by ordinary motives to the commission of the crime, and must be, in case of discovery, dealt with in the ordinary way. The test of insanity thus explained seems to me to draw as accurate a line between sanity and insanity as is practicable, and, viewed in this aspect, it seems to me to be open to none of the objections which are urged against it. At the same time, I am of opinion that any test which would make itself thoroughly comprehensible to the public should be more explicit than the test alluded to at present is. I think that with very few exceptions, the members of the medical profession have mistaken the meaning of the plain words in which the test is expressed; and the legal profession, if it has understood them, which I am inclined to doubt, has not taken the trouble to explicate their meaning. I am, therefore, convinced that the legal test, while it may remain the same in substance, should be different in form. It should be re-expressed, and that with the view of bringing out the fact that the power of choice is the real test of sanity, and that to make any choice efficient there must be a knowledge of right and wrong-of the permitted or the forbidden.

I have, then, in this paper considered-First, the necessity of a test of insanity; and secondly, the satisfactory nature of the present test. The first question was answered in the affirmative, on the ground of expediency; and as there has been no other test proposed by those who oppose the present rule of law which would have enabled me to compare the present law with the proposed amendment, I had to examine the merits of the present test in relation to the objects it is meant to attain. As it does to my judgment seem capable of obtaining these ends; and as in times past it has for the most part worked as well as the conflicting evidence which is

produced in courts of law, in such cases, would allow it, I cannot see any other possible answer to the second of the questions I proposed in an earlier part of this paper, than an answer in the affirmative. The way in which the Home Secretary reverses sentences, the irretrievability of punishment by death, however interesting in themselves, have nothing to do with the question under discussion, although they have been so often imported into it that people begin to think there must be some reason for so invariable a sequence. And reason there is; the reason which induces people to win a point at any hazard, and the somewhat stupid zeal for a reform where none is absolutely necessary.

THER

V. THE "ALABAMA" ARBITRATION.

HE international arbitration now pending at Genevaperhaps, in some points of view, the greatest event in modern times-as possibly the harbinger of recourse to arbitration in all cases of international disputes-raises many questions of the highest interest and importance as to the principles which ought to govern the resort to such arbitrations, and the conduct of them. Upon a right understanding and appreciation of those principles must mainly depend the success of such arbitrations, and it is lamentable to observe, in the discussions of the arbitration now pending, that these principles have too often been ignored, or entirely disregarded, if not actually derided and disclaimed.

Two opposite heads of error have been observable in these discussions: the idea that there is no standard of right or wrong as between nations, and the notion that it is to be sought in the narrow doctrines of municipal law. It is hard to say which of these errors is the greatest or the worst. The first is fatal to all international arbitration and to any attempt to solve disputes between nations otherwise than by war, and this dreadful doctrine has actually been propounded, in a spirit perfectly cynical, in an able journal. The other error, we have reason to believe, has influenced the advisers of the Government, who appear to rely upon English law, forgetting that it is not binding on our opponents, nor upon the arbitrators, three of whom, as it happens, are foreigners, not acquainted with it, nor recognising its authority. There is, however, a third view, far more in accordance with reason, good sense, and justice, and that is that the Americans, the arbitrators, and ourselves are all equally amenable to public opinion, and

*Pall Mall Gazette.

therefore morally bound by that law which would be recognised by public opinion as binding upon all of us; that is, the general law of Europe-the law which is generally recognised as just and reasonable among all civilized nations. This view was put forward in a letter in the Times, on the 15th instant, under the signature of "A Jurist," and it is that to which we feel disposed to give our adhesion. It assumes that there is some law which in all civilized nations would be recognised as so imbued with the principles of natural and moral justice as to be morally obligatory upon nations as well as upon individuals, and as applicable to the affairs of nations as to those of individuals. And in this age it cannot be difficult to discover such a law. In the time of Cicero it was recognised that there was a natural justice equally applicable to men as individuals and in communities, to men in all ages and in all countries, available and applicable in all time; and perhaps the finest passage in uninspired writings is that in which the eloquent Roman describes and enforces this natural justice. All writers assume this natural justice as the basis of international law, and to ignore it is simply to ignore all arbitrament but the old, brutal, barbarous one of war. The very reference to arbitration in the instance before us assumes the existence and obligation of this natural justice. All legal systems seek, as Adam Smith said, to make this the basis of their laws, and though they may not all have succeeded in the same degree, and none perhaps perfectly; yet certain prin. ciples of justice, as Redesdale, Story, and other great jurists have pointed out, will be found to prevail in all systems of civilized nations, to a greater or less degree, as they have not been perverted or distorted by positive law at variance with them; to a greater degree in our courts of equity than in our courts of law; and to a greater degree in foreign systems, which blend the legal and the equitable, than in our own. Taking the best systems of law-that is, those most generally prevalent and approved of-there will be no difficulty in extracting the great general principles applicable, by way of analogy, equally to international disputes or arbitrations, and those of individuals. The test by which to ascertain these principles will be simple and infallible, and that is, their general adoption. As Cicero said, whatever is recognised as just by all nations, may be safely assumed to be so. The Roman law carried out and applied the principles of natural justice to the highest possible degree, and hence its capability for universal use; and its adoption as the basis of every good system of jurisprudence, including our own equity, and whatever is really good in our common law; but, above all, in foreign systems. In modern times, the magnificent development which the French law has received through the labours of successive generations of jurists