In Barber v. Irwin,15 another case in which the constitutionality of the Confederate conscript law was brought into question and again held valid, it was objected, among other things, that the unlimited power of Congress to place all citizens capable of bearing arms in the Army of the Confederate States is incompatible with State sovereignty and may be so exercised as to deprive them of their right to enforce their police power or to execute the mandates of their courts. To this argument the court replied that:

"Public exigencies, and especially military exigencies, require that the Legislature be entrusted with ample powers. If the presumption, that no power susceptible of abuse could have been intended to be given, is to govern, in the construction of the constitution, the palpable result is, that our government is too weak to accomplish the ends for which it was instituted. In the language of Gov. Troup, so understood, 'it is the weakest and most contemptible Government on earth; it is neither fit for war nor peace.'

Adverting to the admission in argument that in order to meet invasion Congress, by calling out the militia, had the power to place in actual military service all men capable of bearing arms, even to the last man, the court commented as follows:

"Now, this done, what becomes of the sovereignty of the States, so jealously guarded, in construing the other clause? Where would be their police force; where their sheriff's posse comitatus? Why is the presumption so vigorously wielded against one power allowed to slumber when the other is invoked?" 17

In Jeffers v. Fair 18 it was argued that the proceeding by which the plaintiff-in-error was held in custody was a virtual calling forth of the militia and violated the Constitution in that it took from the State the right of appointing officers of the militia so called forth. The court replied that:

"This argument rests upon the fact that the men now being enrolled for service in the army, have been previously enrolled in the States as militiamen. The simple and obvious reply is, that the status of the citizen is not merged in the militiaman; that the fact of enrolment with

the militia does not exempt him from other duties and liabilities of citizenship."

" 19

The above cases demonstrate the principle of the draft provision of the Bill, and its soundness.

21

Coming back to the Bill, care should be taken not to confuse the authority to draft the militia as well as all other citizens under the power "to raise and support armies" 20 with the power "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions." The latter power is invoked by section 101 of the Bill which contemplates the call of the National Guard as such, that is, as organized militia, for the specified constitutional purposes. When in the active service of the United States under such a call, the militia serves as militia of the several States though subject, of course, for the time being, to the exclusive government by Congress. But the power to raise armies is invoked by section 111, providing for the draft of the members of the militia into the Army of the United States for war purposes; in such a case, they are not drafted as militia, nor do they serve as militia, but as members of the Army of the United States. Accordingly the section expressly declares that "all persons so drafted shall, from the date of their draft, stand discharged from the militia." A militiaman, organized or unorganized, is a citizen. Concededly an unorganized, or reserve, militiaman is subject to draft; otherwise, since all arms-bearing citizens are such militia, whence shall our armies come? An organized militiaman is no less a citizen and is much better prepared, largely at Federal expense, to make an effectual contribution to the country's cause in time of war.

Judged by Marshall's canon or any other reasonable rule, Congress not only has the right to take those who are the best prepared to defend the Nation, but it also has the duty.

OFFICE OF THE JUDGE ADVOCATE General,

WASHINGTON, D. C.

19 Page 353.

20 Art. I, sec. 8, cl. 12.
a Art. I, sec. 8, cl. 15.

S. T. Ansell.

INSANITY AND CRIMINAL RESPONSIBILITY

FOR

II

OR the purpose of comparing the scope of the proposed section with existing rules, the law in three prominent states (Massachusetts, New York, and Illinois) will now be examined. Massachusetts. The Supreme Judicial Court in 1905 approved the following test of responsibility:

"In order to constitute a crime, a person must have intelligence and capacity enough to have a criminal intent and purpose; and if his reason and mental powers are either so deficient that he has no will, no conscience, or 81 controlling mental powers, or 81 if, through the overwhelming violence of mental disease, his intellectual power is for the time obliterated, he is not a responsible moral agent, and is not punishable for criminal acts." 82

The same court in 1914 announced the following "working rule whereby the jury are to be guided" in cases where the defense is insanity:

"If then it is proved, to the satisfaction of the jury, that the mind of the accused was in a diseased and unsound state, the question will be, whether the disease existed to so high a degree that for the time being it overwhelmed the reason, conscience, and 81 judgment, and 81 whether the prisoner, in committing the homicide, acted from an irresistible and uncontrollable impulse: If so, then the act was not the act of a voluntary agent, but the involuntary act of the body, without the concurrence of a mind directing it." 83

The later test is capable of two interpretations. It may be regarded as meaning (1) that there shall be lack of reason, conscience, and judgment in addition to the existence of an irresistible impulse, or (2) that, though reason, conscience, and judgment are still active, the impulse being irresistible cannot be restrained by them. As the conjunctive connective is used, the first would seem to be the proper interpretation.

81 The italics are the present writer's.

* Commonwealth v. Johnson, 188 Mass. 382, 388, 74 N. E. 939 (1905).

* Commonwealth v. Cooper, 219 Mass. 1, 5, 106 N. E. 545 (1914).

However interpreted, it will be noted at once that the later test differs largely from the earlier. According to the earlier one there is no responsibility if there is either no will or no conscience or no power of control or no intellectual power. If, for instance, a defendant has normal will power and intelligence, nevertheless he would not be responsible if he has no conscience. Under the first interpretation of the later test the only defense would be irresistible impulse. Under the second interpretation reason, conscience, judgment, and power of control must all be lacking in order that there may be a defense. This is a condition which seldom occurs. A striking contrast to the last announcement of the Supreme Judicial Court is presented by the charge of the trial judge to the jury in the same case. He told them "the defendant could not be convicted if from mental disease he was unable to form a criminal intent," which test closely resembles the provision of the proposed section.

Both the tests announced by the court-the one in 1905 and the one in 1914 were taken verbatim from the famous charge to the jury by Chief Justice Shaw in the Rogers Case.84 His statement of the law regarding insanity has been the object of great admiration and praise. So great a legal writer as Professor Greenleaf in his treatise on Evidence describes it as a "lucid exposition of the law," 85 and this statement has remained unchallenged by the subsequent editors.

In view of the prestige which it enjoys and the position which it occupies as the basis of the present law in Massachusetts this charge of Chief Justice Shaw deserves careful analysis. The first part of the charge as it appears in the official report is as follows: 86

1. "In order to constitute a crime, a person must have intelligence and capacity enough to have a criminal intent and purpose; and if his reason and mental powers are either so deficient that he has no will, no conscience or controlling mental power, or if, through the overwhelming violence of mental disease, his intellectual power is for the time obliterated, he is not a responsible moral agent, and is not punishable for criminal acts.

2. "But these are extremes easily distinguished, and not to be mis

& Commonwealth v. Rogers, 7 Metc. (Mass.) 500 (1844).

85 2 GREENLEAF, EVIDENCE, § 372, note.

"The numbering of the paragraphs is by the present writer.

taken. The difficulty lies between these extremes, in the cases of partial insanity, where the mind may be clouded and weakened, but not incapable of remembering, reasoning and judging, or so perverted by insane delusion, as to act under false impressions and influences. In these cases, the rule of law, as we understand it, is this: A man is not to be excused from responsibility, if he has capacity and reason sufficient to enable him to distinguish between right and wrong, as to the particular act he is then doing; a knowledge and consciousness that the act he is doing is wrong and criminal, and will subject him to punishment. In order to be responsible, he must have sufficient power of memory to recollect the relation in which he stands to others, and in which others stand to him; that the act he is doing is contrary to the plain dictates of justice and right, injurious to others, and a violation of the dictates of duty.

3. "On the contrary, although he may be laboring under partial insanity, if he still understands the nature and character of his act, and its consequences; if he has a knowledge that it is wrong and criminal, and a mental power sufficient to apply that knowledge to his own case, and to know that, if he does the act, he will do wrong and receive punishment; such partial insanity is not sufficient to exempt him from responsibility for criminal acts.

4. "If then it is proved, to the satisfaction of the jury, that the mind of the accused was in a diseased and unsound state, the question will be, whether the disease existed to so high a degree, that for the time being it overwhelmed the reason, conscience, and judgment, and whether the prisoner, in committing the homicide, acted from an irresistible and uncontrollable impulse: If so, then the act was not the act of a voluntary agent, but the involuntary act of the body, without the concurrence of a mind directing it.

5. "The character of the mental disease, relied upon to excuse the accused in this case, is partial insanity, consisting of melancholy, accompanied by delusion." 87

Before charging with special reference to the case the chief justice made several preliminary statements of a general character, which culminated in the announcement of the following principle:

"A person, therefore, in order to be punishable by law, or in order that his punishment by law may operate as an example to deter others from committing criminal acts, under like circumstances, must have sufficient memory, intelligence, reason and will, to enable him to distinguish between right and wrong, in regard to the particular act about to

87 7 Metc. (Mass.) 500, 501 (1844).