Critical Remarks on the “Plea of Insanity”
- Author:
Richard Poole, M.D.,
Fellow of the Royal College of Physicians, Edinburgh, formerly Superintendent of the lloyal Lunatic Asylum, Montrose. (Continued from page 281.)
Hoke recent in date (1831) is that of George Waters, reckoned “similar” by Alison, who thus relates it. “The panncl, in a rude and strange manner, had taken his son bv the hand, who was playing near the Water of Leith, at Bon- hington, and had a fork in his possession. As he got nearer the place where the iatal deed was perpetrated, his look appeared, to the witnesses who saw linn, wilder and more frantic. He was seen looking into the water, where the body Was thrown after it was committed, in a raised and insane manner. He was seen near the spot, in a subsequent part of the same day, moving about like a deranged person, and declared lie was Sir William Wallace, and an honour to his country. When apprehended, lie admitted having killed jus s°n, made no resistance, spoke incoliercntly, and prayed aloud. 1 lie evening before he had i ver,Y insanely about having been at Inchkeith on a raft. In ^November, ^29, he had been committed for disturbing his neighbours; he had then t e appearance of delirium tremens, and was confined in a strait-waistcoat ; and his relations had subsequently written to the Leith Police to look after the pannel, as he could not take care of himself. In these circumstances, the insanity was clearly proved, and so the jury held, with the approbation ol the court; and lie }yas confined for lifeThe circumstances, beyond all doubt, demonstrated insanity, as understood by medical men, but, by no means, absolute alienation reason, sought for by some lawyers. The former, we shall immediately see, may err, like the latter, in regard to the existence of the disease. -It is by hq means unusual,” says Alison in contiuuancc, “to find instances ol persons committing crime under the inlluence of insanity, who yet give no in- dication of it when conversing in jail with a medical man.” Every one will be prepared for such a remark who understands the well-known lact that the malady, though ever so intense, admits of intervals or remissions of manifesta- • aild, generally speaking, requires peculiar excitement in order to display A|S<in ]1Ulie(lll’vocally. Alison gives an example of the kind, in the ease ol Janet ,Vc.’ SeI>tcmbcr, 1829.
She was charged with having stolen a child belonging to her mistress, as ^ ell as a quantity of clot lies from her house. Insanity was pleaded m bar o rial; but, alter the examination of a single witness, who said he saw nothing insane about her, it was withdrawn, and she pleaded guilty. ‘Ihe case, how- ever, was certified to the high court (from the circuit at Stirling, it appears), 0 give time to investigate the state of the woman’s mind, which was very suspicious from the style of her declaration, and from most of the stolen ^rticles having been found torn to pieces in the wood near her mas er s louse, •tt ultimately turned out that she had been insane, and cscapcd some months before from a lunatic asylum near Greenock, and had been considered insane all her life. Still, the medical men who examined her in Edinburgh declared they did not regard her as ‘ void of reasonbut, as the crime had evidently been committed in a state of mental alienation, the prosecutor did not move for sentence, and she was confined till her sanity was restored.” The case was given on Sheriff Alison’s own report, and, probably, is one in which he was counsel. I could wish for more information respecting it, and, especially, touching the grounds on which the medical men in Edinburgh declared the woman not ” void of reason.” The same thing, I may remark, might be pre- dicated of nearly all the patients (amounting to hundreds) who ever came under my care, though, most assuredly, insane and certified to be so by competent members of the medical profession ; and, 1 verily believe, a like testimony will be given by the majority—possibly all—of those individuals who have held, or now hold, superintendence in lunatic asylums. Of course, idiotic and purely demented persons must be excluded from the list.
” Somewhat of the same description,” according to Alison, ” was the case of James Cummings, 12th January, 1810, charged with murder” (reported, I presume, in a subsequent edition of Hume’s work). Some years before, it seems, he “had met with a severe injury on the head, but hail recovered, en- listed, and was not considered by his fellow-soldiers as insane; but he was silent, solitary, and quarrelsome when in liquor. One morning, when on guard as a sentinel, being teased by a fellow-soldier, he became suddenly outrageous, and pursued him into the barracks. Having arrived there, he pushed at a woman with his bayonet, and missed her, but immediately after struck at a fellow-soldier coming out of a door, and killed him on the spot. The jury, by a plurality of voices, found the pannel insane at the time of committing the murder; but there seems good ground for Baron Hume’s opinion, that it would have been more agreeable to law to have found him guilty, but recommended him, on account of a constitutional irritability, arising from his wound, over which he had no control, to the ltoyal mercy.” More agreeable to law—very possibly, I would say; but neither to common sense nor to justice, if, as was admitted in the preceding case, ” the crime had evidently been committed in a state of mental alienation.” Surely, “a constitutional irritability, arising from a wound, over which (meaning, 1 take for granted the former) the man had no control,” was as valid a pica as the condition of the woman against whom “the prosecutor did not move for sentence. I confess myself unable to discover any fixed, not to say, rational, rubric, by which both Hume and Alison arc guided in deciding on such matters. But to procced.
” Insanity was clearly proved,” says the latter, ” in the case of William Douglas, May 28, 1827, who had set tire to the furniture of the lodgings which he occupied at Peebles, and nearly burned the house. He was convicted ot at- tempt at fire-raising, but, in conscqucnce of his state of mind, ordered to be confined for life.” This needs no comment.
” The law of England,” we are now told by Sheriff Alison, ” is founded on the same principles;” and lie gives us, in illustration, the well known case ot Hadfield, indicted for shooting at the king in Drury-Lane Theatre (1800). I’1.0 details are unnecessary here. “It was quite clear,” says Alison, “that this man was mad, and his ease was eloquently pleaded by Lord Erskine. Eoru Kenyon held that, as the prisoner was insane immediately before the offence was committed, it was probable that he had not recovered his senses at the time he fired, and that, as there was no reason to believe that he had recovered in sanity in the interval between the two events, he was entitled to an .ac)(,luli>llt’ which he accordingly received, and was ordered to be confined for life.” & ^ how, I ask, does this tally with the opinion of Baron Hume, above appr°v^ ‘ j favour of a verdict of guilty, accompanied by a recommendation to the 1 ^ mercy ? Farther, too, I would ask, if, in his conduct throughout, lladfie not exhibit a good deal of method and design—evidently the product of reason— therefore showing its existence, though, undoubtedly, struggling against or labouring under delusion ?
Hitherto we have had under review the first general rule, or position laid down by Alison—that, namely, which insists on insanity being ” of such a kind as entirely deprived the person of the use of reason as applied to the act in question, and the knowledge that he was doing wrong in committing it,” in order to “a complete bar to punishment.” AVe have now to consider the second, announced in these words, ” If it appear from the evidence that the pannel, though partially deranged, was not so much so as to relieve him en- tirely from punishment, the proper course is to find him guilty; but, on account of the period of infirmity of mind, which he could not control, recommend him to the royal mercy”—a suggestion, it will be observed, very similar to what has already been given on the authority of Baron Hume.
We arc told, in exposition, that “cases frequently occur in the highest dcgree perplexing both to the court and jury, which can only be justly re- solved by an application of the principle and mode of proceeding above set orth. They are those in which the accused was to a great degree to blame, .. would not probably have committed the fatal act but for some constitu- /!? or supervening derangement which rendered him not so far responsible v *us marked in italics by Alison) as those who, by enjoying their reason un- °uued, have 110 defence whatever against atrocious actions. In such cases JCre is a mixture of guilt and misfortune; for the former he should be severely punished, for the latter the extreme penalty of the law should be emitted. This can only be elfcctcd by adopting the course above pointed out.” ‘Will be speedily seen, however, that this course has not always been success- ul ln issue, and, indeed, one might have anticipated a difficulty in reconciling severe punishment, supposing it just, with a remission of penalty. Possibly, owever, Alison means only condemnation on one hand, and pardon 011 the ot’ier. If SOj f]lc ccrtainty of the alliance, it would seem, cannot be reckoned 11: and, consequently, juries may become of opinion that, when they really esire to show mcrcv, tlicy must provide for it by their verdict. Can they ever ‘esitate to do so in the face of evidence which satisfies them of the existence v SUch infirmity of mind as could not be controlled? How shall they draw a !ue °f distinction between that state and the condition of one who, though un- v°il aUding rM?bt and wrong, is yet unable to use reason in a special act ? And 1 not a ” constitutional or supervening derangement,” sufficient to exempt °m some responsibility, because, in its absence, the accused would probably ot nave committed a certain deed, appear to be a very good ground for sus- sl n” ^le wh°le evil depended on it, and, therefore, that 110 punishment few f , ow ‘• course, some exceptions must be made, as, possibly, in a 21 t°T» cases to which I now hasten. “Thus, in the ease of William Gates, Dec., 1811,
who was tried for shooting his wife with a musket, insanity Whi if j d i’1 bar of trial, but failed. O11 the evidence, it appeared that tha*S ^ a consequent irritability of temper, had a large share in the deed, but men’ CVt}1 V^1CU so’,cr, he was of a melancholic temperament, and not like other liarti 11 tl.iat the act was committed 111 a state of insanity. But Viet ‘’l , ,nc’s opinion is obviously well-founded, that they should have con- ablv ‘,ul. rccointended to the royal mercy.” But why so, one might reason- evfM«aS.i ^’lcy were satisfied by evidence of insanity at the time, and that, cc T n’1 so^er> the pannel ” was not like other men” ?
2;. 1 ** manner,” continues Alison, ” in the case of Pierce Hoskins, old • !. 1812, who was tried for the murder of his own child, of four years ,v ‘ 111 11 “t °f drunken insanity, it appeared that the pannel, when intoxicated, d(i ¥ Perh?etly mad for days together, and in that state he committed the fatal He was acquitted by the jury; but Baron Hume declares that it is questionable whether an assize do right when they sustain the plea of this lower degree of infirmity of mind, exasperated only into a short fit of outrage and fury by excess of liquor; or where they receive as evidence the atrocity or brutality of the act itself that has been done, though there have been 110 previous symptom of the disease.” A lower degree of infirmity of mind! Why, it appears, he was “perfectly mad for days together, and in that state committed the fatal deed.” In the absence of details, probably well known to Hume, I can say nothing on the last point in his remarks.
” The latter course,” says Alison, meaning what Hume advised, ” was fol- lowed in the case of Alexander Campbell, 18th December, ISO!), who was found guilty of robbery, but recommended to mercy, ‘ on account of a certain degree of weakness of intellect, to which he appears to be subject,’ and received, in couscquence, a transportation-pardon”—no doubt, it may be imagined, better than hanging, as in days of yore, but still a severe punishment, and, one would think, very unsuitable for a man of weak intellect.
“In like manner, in the cas p ° MV” 11x1 ^”arch, 1810, a more physicians and a surgeon, who had visited the pannel in jail, that she was ot a weak mind, laboured under religious dreams, spoke of her interviews with the devil, said he had tempted her to burn the barn, and that God had reproved her by scorching her hands on the occasion. On other subjects, however, she reasoned correctly, and knew the distinction between right and wrong. She was convicted, but recommended to mercy, and received in consequence a pardon from the Crown.” So lar well and happily, I would say; but her mani- fest insanity, as judged by medical men, would have warranted a different ver- dict, and[secured what might not have been granted; for though, as Alison says,_ ” the same course was followed at Jedburgh, autumn, 1831, in the case ot Samuel Rogers, he was not quite so fortunate. “He was accused of murdering an Irish reaper, in the coursc of harvest, whom he pursued into the river Tweed; and a considerable degree of insanity was proved at the trial. The jury found the pannel guilty, ‘but, in respect of the alleged insanity, recommend him to mercy.’” VVc shall be somewhat enlightened here by Alison, who himself re- ports the ease. “This way of wording the verdict was incorrect ; but their meaning evidently was that a certain degree of insanity only was proved, insuf- ficient to liberate the pannel from punishment altogether, but sufficient to ex- cuse him from the extreme penalty of the law.” It may be so; but they had better have expressed themselves »y leaving out a word liable to misinterpreta- tion ; and, still more, in my humble opinion, by an acquittal, if satisfied as to ” a considerable degree of insanity.” My reason appears in what follows ” The case was not so viewed in the proper quarter, for he was executed J11 pursuance of his sentence”—guilt, doubtless, being deemed to preponderate over misfortune. But, pray, even admitting the excess, was not something due to the less weighty element, according to the coursc approved ? Perhaps bu we are not told so—the poor man had the comfort of a silken halter! . , Sherifl Alison generalizes from such examples in relation to a special point thus—“This seems the proper way of resolving those cases, unhappily too numcious, in which a fatal act has heen committed in the coursc of a tcnip^ rary fit of insanity, arising from excessive drinking. In all such cases there is room for a distinction. If the pannel, naturally sane, has been rendered naa solely by drink, and this infirmity was known to him, he seems to have no d0* fence whatever against the legal punishment of his actions; for it is the duty of every man to abstain from indulgences which lead to perilous consequences, and as intoxication is no dcfencc, so the insanity consequent upon its excessiv and criminal indulgence seems to be as little, jiut, on the other hand, if cl}en the insanity has supervened from drinking, without the paunei’s having aware that such an indulgence, in his case, leads to such a consequence, oi 1 rational verdict was returned.
testimony of two has arisen from the combination of drinking with a half crazy or infirm state of mind, or a previous wound, or illness, which rendered spirits fatal to his intel- lect, to a degree nnusual in other men, or which could not have been antici- pated, it seems inhuman to visit him with the extreme punishment which was suitable in the other case. In such a case, the proper course is to convict, but, in consideration of the degree of infirmity proved, recommend to the royal mercy.”
I reckon it unnecessary to dwell on these various considerations—liberal, generally speaking, as they are—farther than to say that, while wilful drunken- ness is unquestionably immoral in itself, and perhaps, therefore, with propriety deemed by the law rather an aggravation than an alleviation of a criminal charge, as Alison afterwards mentions, the habit of drinking to excess is, iu many instances, the consequence of or an attendant on real mental disorder, arising from other and very diifercnt circumstances. The whole subject, in truth,’ is beset with difficulties, to which I can only point in this most super- ficial manner.
Alison’s third general proposition is in these terms :—” If thepanncl, though somewhat, deranged, is yet able to distinguish right from wrong, in his own case, and to know he was doing wrong in the act which he committed, he is liable to the full punishment of his criminal acts.” This is nearly to the same Purport as that of a former statement, or may be deduced from it; and, ac- cordingly, says our author, ” It has been already noticed that the true test of insanity is to be found, not in the ability to distinguish between right and Wrong in the general case, but with reference to the particular case of the pannel; and that he is amenable to the same punishment^ as other men, when his conscience tells him, or is in a situation to have told liini, that what he did Was wrong. But anything short of this complete alienation of reason will be 110 defence; and mere oddity of manner, or half crazincss of disposition, it un- accompanied by such an obscuring of the conscicncc, will not avail the prisoner. This is proved by a multitude of cases, both in the Scottish and English piactice.” Simply remarking, what might be shown by analysis, that Alison does not here express himself throughout with perfect accuracy, I go on to the cases considered in point. They arc those of Thomas Gray and Robert Bon- thron (for which sec my notes on Hume), then we have that of Sir Archibald -kinloch, introduced by tlic explanatory observation. It is not indispensable that the madness should be continued 111 respect of time, so as it be clearly es- tablished at the date of the crime.” Following Hume again, Alison tells us that c< the plea of insanity must be received with much more difficulty in cases proceeding from the desire of gain, as theft, swindling, or forgery, and which generally require some art and skill for their completion, and argue a sense of the advantage of acquiring other people’s property”—details being added of the cases of Thomas Henderson (as in Ilumc), John Smith, spring, 1827, and Alex- ander Duff, spring, 1829, which latter two claim attention. They are preceded !}.y a remark to tiic effect that ” such a defence, as was made in the former, has oecn very frequently attempted in subsequent eases, but hardly ever with suc- cess,” for a reason stated—“it is difficult to figure that state of mental aliena- tion which leads pannels to lay their hands 011 other people’s property, or, if they labour under such an illusion as made them mistake it for their own, which induces them to adopt the art, skill, and concealment nccessary for its effectual perpetration. Such cases, however, do somctiines occur,” as, for example, in Smith, charged with horse-stealing, but evidently insane, and treated as such; then, as to Duff, similarly charged, having stolen a horse out of a stable in the night, “and, with some art, having untied the door, which was fastened with a string, but he had afterwards abandoned it on the roadside, where it was found next morning among some corn, at the distance of five miles from the place of theft.” ” The whole circumstances,” continues Alison, ” cviuced a disordered mind, and the charge, in consequence, was not insisted on by the prosecutor adding, as a general principle, ” In all cases where such a defence is pleaded, the great thing to attend to is the subsequent conduct of the pannel, and whe- ther he evinced any symptoms of conscious guilt, or a desire to conceal what had been done subsequent to its commission; for, if he did, it is diflicult to see how the plea can be well-founded, that he knew not the criminal nature of his actions.” I shall offer only two short remarks on the whole of this deliverance, for, against such authority, “established, moreover,” as Alison notices, “in the English practice,” it would be vain to argue. The first is, that no one accus- tomed to see maniacs can have the least difficulty in figuring to himself the very state of mental alienation referred to as a sort of improbability, more especially if he take into account, as lie ought and will, the existence of various pro- pensities—moving powers—whatever they may be, and however denominated, totally distinct from reason or judgment. And, secondly, I have to say, as also matter of experience, that ” the great thing,” on which Alison relies as conclusive, is in truth quite fallacious, worthy of 110 confidence in determining the sanity of an individual at the time of committing any deed, however criminal and atrocious. In other words, subsequent conduct, <0 the amount of entire rationality, is perfectly compatible with previous derangement; and, in point of fact, which Alison seems to have overlooked when making 011c of the above statements, some of the cases recorded give 110 small support to the position now maintained. I shall allude to one only, because what he says of it is peculiarly cogent in the matter. It is that of Sir A. Kinloch, in which the jury found insanity proved, ” though he regained his senses completely a short time after the melancholy event.”
Among the English instances decided 011 the same principles which have ruled in Scotland, we have, first, that of Lord Ferrers, tried for murder before the House of Peers. “It was proved that he was occasionally insane, and in- capable of knowing what lie was doing (one might have expected this to be held sufficient excuse); but the murder was deliberate, and, when he committed the crime, he had capacity sufficient to form a design and know its consequences. He was found guilty, and executed.”
2. Arnold, charged with shooting at Lord Onslow. ” It clearly appeared that the prisoner was, to a certain extent, deranged, and that lie had greatly misconceived Lord Onslow’s conduct, but formed a regular design, and pre- pared the proper means for carrying it into effect. He was convicted, but, at Lord Onslow’s intercession, reprieved, and confined for life.” In this rase, Mr. Justice Tracy laid it down to the jury, ” that the defence of insanity pleaded against a great offence must be clearlv established; that it is not every idle and frantic humour of a man which will exempt him from being accountable for his actions, but such a deprivation of reason as renders him as an infant, a brute, or a wild beast, incapable of knowing what he was doing—a condition, I nn* hesitatingly affirm, such as is not exemplified in one out of a hundred persons requiring and actually receiving humane treatment, with the kindliest sympathy} in our large asylums for lunatics. At the time of writing this sentence, ninety- four patients were under my own care; a few of them—three or four—-were altogether or almost entirely fatuous; but, even comprehending these—because still indicating a portion of intellect—I might have safely said that u°uC realized the character of an irresponsible maniac, such as Mr. Justice Tracy describes. , ..
3. Parker, indicted for entering the service of France, then at war with t in country. His defence was insanity. He had been weak from infancy, and had been thought surprising that he was received into the army. But he an deliberately entered the foreign services, and knew what he was doing, jj as a reason, that it was “more agreeable to be at liberty and have |)lel’,^eC. money, than be at want in a dungeon.” lie was convicted, ” under the 1 tion of the court, that insanity was not established.” Alison makes no com- ment on the case. I will do so, but it shall be short. The man’s reasoning was precisely that of a madman; indeed, quite like the process adopted by a clergyman, recorded by Dr Abercrombic, and to which I may advert here- after.
4. “Bowler’s case, 2nd July, 1812, accused of shooting Mr. Burrowes, was one of considerable difficulty,” according to Alison. ” Insanity, occasioned by epilepsy, was the defence pleaded. He had an epileptic fit in July, 1811, and since that time had been very strange in his demeanour,’ eating his meat almost • raw, and lying on the grass exposed to the rain, and so dejected that it was necessary to watch him lest he should destroy himself.” All this, it might be hoped, would have been reckoned potent enough. But there was more. ” A commission of lunacy was produced, dated 17th June, 1812, on which the prisoner was found insane from 30th March last. Mr. Warburton, the keeper of a lunatic asylum, had no doubt of the insanity of the prisoner, and stated that persons subject to that specics of madness often took strong antipathies, founded on illusions totally destitute of foundation.” Not a douot of it—Mr. W. was quite correct. But notwithstanding, ” the jury, after much delibera- tion, found the prisoner guilty.” In this case, it seems, ” Mr. Justice Le Blanc laid it down to the jury, that they had to determine whether the prisoner, when he committed the oil’ence, was incapable of distinguishing right from wrong, or under the influence of an illusion, in respect to the prosccutor, which rendered his mind at the moment insensible to the nature of the act he was about to commit, since in that case he would not be legally responsible for his actions; but that, if lie was not under such an illusion, or not incapable of understand- ing the distinction between right and wrong, lie was amenable to punishment. Alison adds—“This appears the true view of the subject. One would like to know how the “much deliberation” of the jury depended on this charge. 5- The noted case of Bcllingham, who shot Mr. Percival in 1S12. Insanity Mas pleaded to the jury, and many strong facts brought out in support of the pJea, tending to show that the prisoner falsely imagined himself subject to a ]ong series of injuries from that minister.” His fate is well known. In his case, Lord Chief-Justice Mansfield laid it down to the jury, that, “in cases of murder, it must be proved beyond all doubt that the prisoner, at the time of committing the act, did not consider that murder was a sin by the laws of God and nature; that lunatics, as long as they can distinguish right from wrong, arc answerable for their conduct; and that the mere fancying of a series of injuries which did not exist, was no defence against the charge of murder, if the prisoner were in other respects capable of distinguishing right from wrong.”
Let us see what Sheriif Alison says on these sentiments, with which, almost evidently, he is not quite satisfied. “On this case it may be observed, that Unquestionably the.mere fancying a scries of injuries to have been received will not serve as an excuse for murder, for this plain reason, that, supposing it true that such injuries had been received, they would have furnished no excuse for the shedding of blood; but, on the other hand, such an illusion as deprives the pannel of the sense that irhat he did teas wrong amounts to legal insanity, though he was perfectly aware that murder in general was a crime; and there- fore the law appears to have been more correctly laid down in the cases of Had- dd and Bowles than in this instance, though no injustice may have been coin- nutted in the actual result.” No injustice may have been committed in the actual result—simply—a hanging!—though the verdict was decidedly influ- enced by a legal opinion, not “the most correct,” seeing there was a better, and though many strong facts sustained the plea! Alas—alas! 1 shall, pro- bably, either find or take occasion to show how indignantly, and yet how justly, at the distance of several years, Lord Brougham expressed himself respecting the deplorable trial of Bcllingham. Sheriff Alison here closes the English cases, and his third main proposition. In relation to one point connected with the former examples adduced, I have a special reason, which may afterwards be patent,, for quoting the opinions of an author whose judgment in such matters is worthy of most serious regard.
” The subject of hallucination, in insanity, may be either entirely imaginary and groundless, or may be a real event viewed in false relations and carried to false consequences. This view of the subject bears upon an important point which has been much agitated—the liability of maniacs to punishment—and which has been ably and ingeniously argued by Lord Erskine in his defence of Hadfield. The principle contended for by this eminent person is, that when a maniac commits a crime under the influence of an impression which is entirely visionary and purely the hallucinations of insanity, he is not the objcct of punishment; but that, though he may have shown insanity in other things, he is liable to punishment, if the impression under which he acted was true, and the human passion arising out of it was directed to its proper object. He illus- trates this principle by contrasting the case of Hadfield with that of Lord Fer- rers. Hadfield had taken a fancy that the end of the world was at hand, and that the death of his Majesty was in some way connected with important events which were about to take place. Lord Ferrers, after showing various indica- tions of insanity, murdered a man against whom he was known to harbour deep- rooted resentment, on account of real transactions in which that individual had rendered himself obnoxious to him. The former, therefore, is considered as an example of the pure hallucinations of insanity; the latter as one of human pas- sion lounded 011 real events, and directed to its proper object. Hadfield, accord- ingly, was acquitted, but Lord Ferrers was convicted of murder and executed. The contrast between the two cases is sufficiently striking; but it may be ques- tioned whether it will bear all that Lord Erskine has founded upon it. There can be 110 doubt of the first of his propositions, that a person acting under the pure hallucinations of insanity, in regard to impressions which arc entirely un- founded, is not the objcct of punishment (meaning ought not to be so). But the converse does not seem to follow—namely, that the man becomes an object of punishment merely because the impression was founded on fact, and bccause there was a human passion directed to its proper object. For it is among the characters of insanity, not only to call up impressions which are entirely visionary, but also to d stort and exaggerate those which are true, and to carry them to conscquenccs which they do not warrant in the estimation of a sound mind. A person, for instance, who has suffered a loss in business, which does not affect his circumstances in anv important degree, may imagine, under the influence of hallucination, that lie is a ruined man, and that his family is reduced to beggary. Now, were a wealthy man, under the influence of such hallucina- tion, to commit an outrage 011 a person who had defrauded him of a trifling sum, the case would afford the character mentioned by Lord Erskine—human passion founded upon real events, and directed to its proper objcct; but no one, probably, would doubt for a moment that the process was as much the result of insanity as if the impression had been entirely visionary. In this hypo- thetical case, indeed, the injury, though real, is slight; but it does not appear that the principle is necessarily afl’ected by the injury being great, or more in relation to the result which it leads to according to the usual coursc 01 human passion. It would appear probable, therefore, that, in deciding a doubt- ful case, a jury ought to be guided, not merely by the circumstances of the ease itself, but by the evidence of insanity in other things. This, accordingly, «P* pears to have been the rule on which a jury acted in another important < case mentioned by Lord Erskine, in which an unfortunate female, under the ini u- euce of insanity, murdered a man who had seduced and deserted her.
was a real injury of the highest description, and human passion founded up it and directed to its proper objcct; but the jury, 011 proof of deiangcnicn other things, acquitted the prisoner, who accordingly soon passed into a state of ‘ undoubted and deplorable insanity.’ In the case of Lord Ferrers, also, it would appear that the decision proceeded, not so much upon the principle of human passion directed to its proper object, as upon an impression that his lordship’s previous conduct had been indicative of uncontrolled violence of temper rather than actual insanity.”—{Dr Abercrombie, Intell. Powers.) The remaining propositions set forth by Sheriff Alison scarcely come in my way. But they may be quoted with the briefest possible annotations.
” (4.) The proof’of insanity it lies upou the pannel to establish; and, in the case of an insane person having lucid intervals, it lies upon him to show that the criminal act was committed during the continuance of the disease, unless the intervals were of short duration. On part of which—or generally—he ad- duces Hume’s remark as appearing well founded—namely, in reference to the pannel being bound to substantiate his defence if the lucid intervals were long, whereas thereverse is the case where they are extremely short, ‘and he was apprehended shortly after the act in a state of furiosity,’ thus, namely, ‘ that the point should be left for the consideration of the jury, rather than made the subject of unbending presumptions which must, in many instances be unsuitable to the justice of the particular case with which they are intrusted.” The ex- tension of this remark, I am disposed to think, would be equally proper, to say the least.
” (5.) Insanity may be pleaded in bar of trial, if the pannel be then insane, and the Court, ex propria motu, will take cognisance of the state of a prisoner s mind, if he appear incapable of conducting his defence.’ Here it is observed, as comparatively a recent thing, that ” proof (of insanity) may competently be brought forward by any one capable of speaking to the point, whether- contained ln the list of witnesses or not; and the proof is taken by the Court itself, with- out the intervention of an assize.” This was first adopted in 1S01, and has been since followed.
„ “(0.) Where the trial goes on, and insanity is found proven by the jury, the Court orders the prisoner to be confined for life, or until caution is found by his friends to put liim in a place of safe custody during the remainder of his We.” On this point I need not speak. As to sundry and important topics connected with, or proceeding from it, everybody knows many olumes have been, and everybody will expect to be, written. My present object keeps me aloof. Jt being understood, and Sheriff Alison having stated that, on matters regarding the plea of insanity, there is a correspondence or essential agreement between the laws, as well as the practice, ol Scottish and English Courts, I append to these remarks an extract from the Times of 20th June, 1813, setting •ortli minutes of proceedings in the House of Lords, when the Judges delivered heir replies to certain questions on the subject.
‘ The House of Lords met yesterday morning at 11 o clock, to hear the opinions 0 the Judges on several questions relating to crimes committed by persons sup- posed to be insane, or afflicted with monomania. There was a full attendance of Peers, amongst whom were Lord Lrougham, Lord Cottenham, Lord Melbourne, °<? 9<auiPbell, Lord Wynford, Lord Kenyon, and others.
II Majesty the Kiug of Hanover (who came down to the House exactly at 11 o’clock on horseback, attended by two grooms in undress liveries) was also pre- sent, and sat on the woolsack by the side of the Lord Chancellor. His Majesty paid the most marked attention to the reading of the opinion of the Judges by the ^ord Chief Justice Tindal.
‘ His Royal Highness the Duke of Cambridge was also present.
‘ Mr. Justice Maule, at some length, but in a low tone of voice, stated his reasons for differing with his learned brethren on the questions which had been submitted to their consideration. His Lordship said, that with reference to the nfth and last question proposed—viz., Can a medical man, conversant with tlio disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner’s mind at the time of the commis- sion of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act that he was acting contrary to law ? or whether he was labour- ing under any, and what, delusion at the time?—he had no hesitation in saying that such a question could legally be put to a witness. It had been the practice to adopt that course. He had no knowledge of such questions having been success- fully objected to. The fact of the Lord Chief Justice of the Court of Common Pleas, and the other distinguished Judges who presided with him on the trial of M’Naughten, having allowed such questions to be put (to Dr Forbes Winslow), was to his mind a sufficient proof of their legality.
” Lord Chief Justice Tindal then rose and said, that Her Majesty’s Judges had most carefully and attentively considered the questions which had been sub- mitted to them by their Lordships respecting insane persons accused of crimes, and, with the exception of his learned brother, Mr. Justice Maule, they were unani- mous in the opinion which he was then instructed to read to the House. It wa3 not necessary on that occasion to enter into the facts of any particular case; it would be wrong to do so, as there was such an endless variety, all and each attended with such improbable and different circumstances, that no general rule could be laid down. Every case must be decided by its own particular cir- cumstances. His Lordship said, as the subject was about to come under the con- sideration of Parliament, the Judges had not lost any time in considering the questions submitted to them : and as they were unanimous, with the exception, he before said, of Mr. Justice Maule, they did not consider it necessary to give their opinions seriatim. The first question propounded for their consideration was as follows:—
” ‘ What is the law respecting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons: a15/ for instance, where at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit?’
” With regard to this question the opinion of the Judges %vas, that notwithstand- ing the party committing a wrong act when labouring under the idea of redressing a supposed grievance or injury, or under the impression of obtaining some public or private benefit, he was liable to punishment.
” Second question— ‘ What are the proper questions to bo submitted to the jury, when a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons is charged with the commission of a crime, murder for example, and insanity is set up as a defence ?’
” The Judges, in answer to this question, wished him to state that they were o opinion that the jury ought in all cases to be told, that every man should be con- sidered of sano mind, unless it was clearly proved in evidence to the contrary^ That before a plea of insanity should be allowed, undoubtod evidenco ought to adduced that the accused was of diseased mind, and that at the time ho commits the act he was not conscious of right or wrong. This opinion related to every ca in which a party was charged with an illegal act, and a plea of insanity was set up- Every person was supposed to know what the law was, and therefore nothing could justify a wrong act, except it was clearly proved the party did not *n0 right from wrong. If that was not satisfactorily proved, the accused was liable ‘ punishment, and it was the duty of the Judges so to tell the jury when sumnnnfe up the ovidence, accompanied with those remarks and observations as the natui and peculiarities of each case might suggest and require. f-on •’With regard to the third question—viz., ‘In what terms ought the ques ‘ to be left to the jury, as to the prisoner’s state of mind at the time when the was committed?’—the Judges did not give an opinion.
” The fourth question was— ffence ” If a person under an insane delusion as to existing facts, commits an o in consequence thereof, is ho thereby excused ?’ . opinion ” The answer to this question was, that the Judges wero unanimous in I that, if the delusion was only partial, that the party accused was equally ia a person of sane mind. If the accused killed another in self-defence, he would be entitled to an acquittal, but if committed for any supposed injury, he would then be liable to the punishment awarded by the laws to his crime.
‘’ With regard to the last question— ” ‘ Can a medical man, conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner s mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act that he was acting contrary to law, or whether he was labouring under any, and what, delusion at the time? ” The Judges were of opinion that the question could not be put to the witness in the precise form stated above, for by doing so they would be assuming that the facts had been proved. That was a question which ought to go to the jury exclu- sively. When the facts were proved and admitted, then the question, as one of science, could be generally put to a witness under the circumstances stated in the interrogatory.
” Lord Brougham said the House and the country were under great obligations to the learned Judges for the care and attention they had given to the subject, .and therefore moved that the opinions read by the Lord Chief Justice be entered on the journals, as he was certain that an almost unanimous opinion would be found of the greatest advantage when in future legislating on the subject. ‘’ Lord Campbell was glad this momentous question had been submitted to the consideration of the Judges. They had been asked their opinion as to the existing aw> and the answer, to him, was most satisfactory. They were not requested to Slye any opinion as to future legislation.
Lord Cottenham, Lord Wynford, and the Lord Chancellor, expressed similar °pinions. . ‘’ The opinion of the Judtres was then ordered to be printed and entered on the journals.” •
The questions, it seems then, were five in number; and on four °f these, l,.erc was unanimity of opinion in the interpretation ot the law by the Judges. A he sole difference, however, is a very important one, because relating to the Actual application of the law in courts, Mr. J ustice Maule, the dissentient, plainly referring to a practice which the other Judges represent as illegal. 1 lie nrd question, lie it said somewhat paradoxically, was not answered at all. llie ‘fSi’. touching responsibility, in a manner involving the whole, is consequently ot highest value—yet, singularly enough, the reply to it does not introduce *e clause which relates to the spccial ground at issue, namely, ” the influence 0 insane delusion,” which is conspicuous in two places ol the query. Thus 7 What is the law respecting alleged crimcs committed by persons afflicted with insane delusion” &c &c.and “Did the act complained of with a view, Under the influence of insane delusion,” &c. &c._ Answer—“Notwithstanding e party committing a wrong act when labouring,” &c. &c. (See again the series at large.)
Now, besides the omission, which leaves the answer in the state of a mere truism, if taken without reference to the question itself, the collocation of words scenis to me peculiarly ill-chosen. For what, strictly construed, do they really niean ,J Jri fact, that the party committing a wrong act is liable to punishment position disputed by no one, and, therefore, not here required. The in- ended meaning, on the contrary, clearly is that, notwithstandirg the party abouring .under the idea of redressing, &c. &c. when committing a wrong act, lc. w.as liable, &c.; or, as might have been expressed, ” the (for a) party com- mitting (or who committed) a wrong act, when labouring under the idea, &c. is nevertheless liable,” &c. But criticism of this kind—and there might be more “—though surely fair where public interests are so much concerned, is vain ; °r faulty as the language commented on may be, no one can absolutely mistake what the Judges meant—namely, that if, at the time of committing the alleged crime, the accused knew he was acting contrary to law, he is 1 able to punisu- ment, even although he then laboured and acted under the influence of an insane delusion. And accordingly the answer to the second question expressly says, ” 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 or wrong.” ” Nothing could justify a wrong act, except it was clearly proved the party did not know right from wrong. If that was not satisfactorily proved, the accused was liable to punishment.”
But farther, and conclusively as to a large class of cases, to the 4th question, ” If a person under an insane delusion,” &c.—the reply is such as to leave no room for doubting—” If the delusion was only partial,” &c.; to which is added, almost unnecessarily, one would imagine, “If the accused killed another,” &c. The 5th answer strikes me as being somewhat ambiguous, or, rather, not in strict connexion with, or appropriate to, the question, which relates to the medical opinion itself; whereas, the Judges, in the first place, say that “the question could not he put to the witness in the precise form stated; ” and then, that ” when the facts were proved and admitted, then the question, as one of science, could be generally put to a witness, under the circumstances,” &c. Now, what are these ? The medical man is said to be ” present during the whole trial and the examination of all the witnesses; ” while, what is asked of him —not, be it observed, in any precise form—is simply ” his opinion as to the state of the prisoner’s mind at the time,” &c. or, ” whether the prisoner was conscious at the time,” &c. or, whether lie was labouring under any, and what delusion at the time. But, according to the supposition of the question, the medical man must have had the facts before him (he having been present, as above stated), or, in other words, the facts are supposed to be proved and admitted. When, then, do the Judges mean lie is to be asked lus opinion? Observe the very question, which is not to be put in the precise form, &c. In short, no small explanation is needed in the whole affair—more light, with greater distinctness of language; and I, for my own part, though willing to concur with Lords Brougham and Campbell, in saying that the House and the country were under great obligations to the Judges for the care and attention tliev had given to the subject, cannot honestly congratulate them on account of clear and satisfactory results.*
It is proper to mention that there are different versions of the opinions—a cir-
cumstance in itself unhappy, and calculated to bewilder the public mind, already distracted enough on this highly painful topic. In order to mitigate, or, rather, entirely arrest the censure which might visit daring opposition to the decrees oi certain eminent legal authorities, I avail myself of some of the sentiments uttered, on a remarkable occasion, by the Hon. Thomas (afterwards Lord) Erskine. They are, in themselves, exceedingly cogent. He is alluding to Lord Chief Justice Ilale, who held, that prisoners should be acquitted only wlion a total and permanent wan of reason was proved ; and to Mr. Justice Tracey, according to whom, a man, to be exempted from penal consequences, must be ono that is totally deprived of his understanding and memory, and does not know what he is doing any more than an infant, than a brute, or a wild beast! Now, how did the eloquent and justly-8“‘5” eessful advocate meet these sad dogmas? ” If a total deprivation of memory (|ie of course comprehends ‘understanding’) was intended by these great lawyers to be taken in the literal sense of the word : if it was meant that to protect a man from punishment, he must be in such a state of prostrated intellect as not to know ‘ name, nor his condition, nor his relation towards others ; that, if a husband, ^ should not know he was married, or, if a father, could not remember he ^ children ; nor know the road to his house, or his property in it,—then no 8 madness ever existed in this world.” most
Again. ” In all the cases which have filled Westminster Hall with t ie ^v0 complicated considerations, the lunatics and tho other insane persons w “^jon. been the subject of them, have not only had memory, in my sense of the expi1-0
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