Blackwood's Edinburgh Magazine, Volume 68, No. 421, November 1850

We feel constrained to say that this appears to us, in every way, monstrous.

"Nine medical witnesses," significantly observes Mr Townsend, "had now spoken, with a wonderful unanimity of opinion, and the court surrendered at discretion."²⁹

If such a course is to be allowed again in a court of justice, what security have any of us for life, liberty, or property?

Chief Justice Tindal here interposed, to ask Sir William Follett whether he was prepared with evidence on the part of the Crown to combat that of the medical witnesses, —

"Because, if you have not," said the Chief Justice, "we think we are under the necessity of stopping the case. Is there any medical evidence on the other side?"

Sir William Follett.– "No, my Lord."³⁰

Chief-Justice Tindal.– "We feel the evidence, especially that of the last two medical gentlemen who have been examined, and who are strangers to both sides, and only observers of the case, to be very strong, and sufficient to induce my learned brothers and myself to stop the case."³¹

After this authoritative intimation from the court, in a capital case, in favour of the prisoner, it would have been obviously to the last degree inexpedient for the Solicitor-general, in his position of peculiar and great public responsibility, to "press for a verdict against the prisoner."³² After, therefore, intimating distinctly and respectfully to the jury, that, "after the intimation he had received from the bench, he felt that he should not be properly discharging his duty to the Crown and the public, if he asked them for a verdict against the prisoner," he withdrew, in deference to "the very strong opinion entertained by the Lord Chief-Justice, and the other learned Judges present," that the evidence, especially the medical evidence, sufficed to show that the prisoner, when he shot Mr Drummond, was labouring under insanity. "If he were so," added Sir William Follett, with a pointed reservation of his own opinion, "he would be entitled to his acquittal." He intimated, however, distinctly, that he adhered to "the doctrines and authorities" on which he had relied in opening the case, "as being correct law; our object being to ascertain whether the prisoner, at the time when he committed the crime, was —at that time– to be regarded as a responsible agent, or whether all control over himself was taken away. The learned judge, I understand, means to submit that question to you. I cannot press for a verdict against the prisoner, and it will be for you to come to your decision."

The Chief-Justice then briefly addressed the jury, offering to go through the whole evidence, if the jury deemed it necessary, which he "thought to be almost unnecessary;" adding —

"I am in your hands; but if, in balancing the evidence in your minds, you think that the prisoner was, at the time of committing the act, capable of distinguishing between right and wrong, then he was a responsible agent, and liable to all the penalties which the law enforces. If not so – and if, in your judgment, the subject should appear involved in very great difficulty – then you will probably not take upon yourselves to find the prisoner guilty. If that is your opinion, then you will acquit the prisoner. If you think you ought to hear the evidence more fully, in that case I will state it to you, and leave the case in your hands. Probably, however, sufficient has now been laid before you, and you will say whether you want any further information."

Foreman of the Jury.– "We require no more, my Lord."

Chief-Justice Tindal.– "If you find the prisoner not guilty, say on the ground of insanity; in which case proper care will be taken of him."

Foreman.– "We find the prisoner not guilty, on the ground of insanity."

We repeat emphatically our deep respect for the late Chief-Justice Tindal, and for his brethren who sate beside him on this momentous occasion; and we also acknowledge the weight due to the observation of Mr Townsend, that "none can form so correct an estimate of the facts proved, and their illustration by science, as those who actually saw what was going on; and the three able Judges who presided seem to have been fully impressed with the conviction that the prisoner ought not to be considered amenable to punishment for his act, being insensible, at the time he committed it, that he was violating the law of God and man."

And, again, "It is far more just and merciful to take care alike of the accused and of society, by confining in secure custody the doubtfully conscious shedder of blood, than to incur the fearful hazard of putting to death an irresponsible agent."³³ Nevertheless, we concur in the unanimous opinion of the five law lords, expressed in their places in Parliament – the Lord Chancellor, Lord Brougham, Lord Cottenham, Lord Denman, Lord Campbell – that it would have been better to let the trial proceed regularly to its conclusion. The whole facts of the case demanded, not less than the theories of the medical witnesses, that thorough sifting, and the application of that masterly and luminous practical logic, which both the Solicitor-general and the Chief-Justice were so pre-eminently capable of bestowing. If, after such a dealing with the case, an acquittal on the ground of insanity should have ensued, who could have gainsaid it? At present, see what a candid and scientific writer on medical jurisprudence – as we have several times observed, a strong favourer of the notion of moral insanity – has felt himself compelled to place permanently on record,³⁴ with reference to the acquittal of M'Naughten.

"When we find a man lurking for many days together in a particular locality, having about him loaded weapons – watching a particular individual who frequents that locality – a man who does not face the individual and shoot him, but who coolly waits until he has an opportunity of discharging the weapon unobserved by his victim or others – the circumstances appear to show such a perfect adaptation of means to ends, and such a power of controlling his actions, that one is quite at a loss to understand why a plea of irresponsibility should be admitted, except upon the fallacious ground that no motive could be discovered for the act – a ground, however, which was not allowed to prevail in the case of Courvoisier, Francis, and the perpetrators of other atrocious crimes. Observe the lively sense of his danger, and of his rights and interests, as an accused person, exhibited by M'Naughten almost immediately after committing the act – when, fearful lest an inadvertent admission should be given in evidence against him, he said to the officer³⁵– 'But you won't use this against me?' Note the matter-of-fact astuteness with which he attended to his pecuniary interests in May and July; the total absence of any evidence of the existence of his delusions during his last sojourn in London; the presence of such proof of careful, deliberate, and too successful perpetration, as to time, opportunity, and means; his expression in November towards Sir Robert Peel – 'D – n him!' But, above all, is to be noted the time when he first gives utterance to anything directly and cogently favouring the notion on which his life depended – his insane delusion with regard to Sir Robert Peel – viz., after he had been for some time incarcerated in Newgate, and when he knew that he was being examined by a physician, in order to ascertain what had been his state of mind at the time in question! Dr Munro has there recorded it.³⁶ He said – 'Mr Salmond, the Procurator-Fiscal, Mr Sheriff Bell, Mr Sheriff Alison, and Sir Robert Peel, might have put a stop to this system of persecution if they would!' … 'We were afraid of going out after dark for fear of assassination: that individuals were made to appear before him like them he had seen in Glasgow.' … 'That he imagined the person at whom he fired at Charing Cross to be one of the crew – a part of the system that was destroying his health. He observed, that, when he saw the person at Charing Cross at whom he fired, every feeling of suffering which he had endured for months and years rose up at once in his mind, and that he conceived that he should obtain peace by killing him.'"

 

Surely it would have conduced – especially in the painful excitement of the public mind on the subject at the time – to the satisfactory administration of justice, if it had been allowed Sir William Follett – without his being placed in the insidious position of appearing to press unduly against a prisoner being tried for his life – to combine and contrast these various circumstances, as he, of almost all men, could have best combined and contrasted them. The jury should have had their minds solemnly and authoritatively directed to the question, for instance, whether this last observation of M'Naughten made to Dr Munro was a spontaneous, genuine indication of utterly subverted mental faculties, continuing from the moment of his shooting Mr Drummond; or an effort of anxious astuteness to give effect to the suggestion which he may have believed would save his life. And, moreover, this and other circumstances should have been accompanied by a direction to the jury, in accordance with that of Lord Denman in Oxford's case,³⁷ and with the following canon, subsequently laid down by the Judges in their answer to the first question proposed by the Lord Chancellor³⁸– viz., "That notwithstanding the party did the act with a view, under insane delusion, of redressing or revenging some supposed grievance or injury, he is nevertheless punishable, if he knew at the time that he was acting contrary to the law of the land." Could M'Naughten be again tried on this charge, this is the precise question which would be left to the jury. Mr Alison, in his Principles of the Criminal Law of Scotland,³⁹ thus lays down the rule applicable to such cases, in commenting on that of Bellingham: —

"Unquestionably, the mere fancying a series 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. On the other hand, however, such an illusion as depriving the pannel of the sense that what he did was wrong amounts to legal insanity, though he was perfectly aware that murder in general was a crime."

Responsibility more awful than is devolved upon all parties to the judicial investigation of this question can scarcely be imagined. A deliberate and thorough investigation of every – even the minutest – circumstance adduced, guided steadily by correct legal principles, is demanded imperiously by justice. Difficult – almost hopeless – as may be the attempt to grope into the turbid mind of a madman, to ascertain its true condition at a given moment of time, the attempt must be made, a decision must be pronounced – distinguishing between real and simulated imbecility or madness – between irresponsible insanity and responsible eccentricity. These are questions, we repeat, of infinite importance, of great difficulty; and the interests of the entire community, and of individual members of it, demand a steady adherence to the principles of a humane and enlightened jurisprudence. Recent dreadful instances have served to remove several sources of dangerous error, in dealing with these cases of criminal jurisprudence. No one dare now infer madness from the mere absence of motive, and from the very enormity of the act committed; nor accord immunity to the fancied victim of "uncontrollable impulse." That is, at all events, a point gained in favour of society. In England, at all events, we sternly repudiate this last sickly and spurious theory, which would place the innocent and virtuous entirely at the mercy of the most base and ruffianly impulses of our fallen nature. It would relax all the bonds of self-restraint, and afford a premium on the indulgence of ungovernable passions.

The recent lamentable case of Robert Pate affords a valuable illustration of the truth of these remarks; and Mr Baron Alderson's charge to the jury not only conduced to the firm administration of justice in the particular case, but was calculated to be of great and permanent public service, by dispelling the morbid and mischievous notions which have latterly prevailed, and exhibiting expressively the stern simplicity and common sense of English law. On the 27th June last, a gentleman, who had only recently sold his commission in the 10th Hussars, and was residing as a gentleman of fortune in London, suddenly struck her Majesty on the forehead a violent blow with a cane, which actually caused blood to flow! He could give no account of his reason for committing this unmanly and infamous outrage; but the defence set up for him was, simply, uncontrollable impulse; and evidence was adduced certainly showing him to be of a very eccentric character, and actuated by strange whims and delusions. He was tried on the 12th July last at the Old Bailey, before Baron Alderson, under statute 5 and 6 Vict. c. 51, § 2.⁴⁰ The indictment contained three counts, charging him with striking the Queen "with an offensive weapon – that is, a stick," with intent (1st) to injure her person; (2d) to alarm her; (3d) to break the public peace. Again came the doctors – one speaking of "some strange sudden impulse, which he was quite unable to control;" and the other confidently pronouncing the prisoner to have been insane. The jury convicted the prisoner on the first and third counts, which the Judge told them had been clearly made out by evidence, discarding the defence of insanity; and the following was the summing-up of Mr Baron Alderson, in strict accordance with the principles laid down in 1843 by the Judges⁴¹: —

"The law throws on the prisoner the onus of proving that, at the time the offence was committed, he was in an unsound state of mind; and you will have to say, after hearing my explanation of the law, whether this has been made out to your satisfaction. In the first place, you must clearly understand that it is not because a man is insane that he is unpunishable: and I must say, that upon this point there exists a very grievous delusion in the minds of medical men. The only insanity which excuses a man for his acts is that species of delusion which conduced to, and drove him to commit, the act alleged against him. If, for instance, a man, being under the delusion that another man would kill him, killed that other, for, as he supposed, his own protection, he would be unpunishable for such an act; because it would appear that the act was done under the delusion that he could not protect himself in any other manner: and there the particular description of insanity conduced to the offence. But, on the other hand, if a man has a delusion that his head is made of glass, that will be no excuse for his killing a man. He would know very well that, although his head were made of glass, that was no reason why he should kill another man, and that it was a wrong act; and he would be properly subjected to punishment for that act. These are the principles which ought to govern the decision of juries in such cases. They ought to have clear proof of a formed disease of the mind – a disease existing before the act was committed, and which made the person accused incapable of knowing, at the time he did the act, that it was a wrong act for him to do. This is the rule which I shall direct you to be governed by. Try the case by this test. Did this unfortunate gentleman know, at the time, that it was wrong to strike the Queen on the forehead? Now, there is no doubt that he was very eccentric in his conduct; but did that eccentricity disable him from judging whether it was right or wrong to strike the Queen? Is eccentricity to excuse a man for any crime he may afterwards commit? The prisoner is proved to have been perfectly well aware of what he had done immediately afterwards, and in the interview which he had had since with one of the medical gentlemen, he admitted that he knew perfectly well what he had done, and ascribed his conduct to some momentary uncontrollable impulse. The law does not acknowledge such an impulse, if the person was aware that it was a wrong act he was about to commit; and he is answerable for the consequences. A man might say that he picked a pocket from some uncontrollable impulse; and in that case, the law would have an uncontrollable impulse to punish him for it. What evidence is there, then, in this case to justify you in coming to the conclusion, that when the prisoner struck the Queen he did not know it was a wrong act – in fact, that what he was doing was wrong? – [Mr Baron Alderson then read over the whole of the evidence for the defence, commenting upon it as he proceeded.] – That the prisoner is an object of commiseration is quite clear; and that he should also have been taken better care of is equally true: but the question you have here to decide is, Are you satisfied that, at the time, he was suffering from a disease of the mind which rendered him incapable of judging whether the act he committed towards the Queen was a right or a wrong act for him to do? If you are not satisfied of this fact, you must say that he is guilty; but if you think he was not aware what he was about, or not capable of distinguishing between right and wrong, you will then say that he is not guilty, on the ground of insanity."

If the case of M'Naughten had been thoroughly tried out – if the medical witnesses, above all, had been checked, and restrained within their proper province, as they were by Baron Alderson – and if the summing up by the Chief-Justice had been in accordance with that of Baron Alderson in Pate's case – we do not venture to say what would have been the result: but whatever it might have been, it would have satisfied the country. Whether, at the moment when M'Naughten took out his long-prepared pistol, and, after a fortnight's watching, fancied he had found Sir Robert Peel, and deliberately shot his victim in the back – whether M'Naughten was, at that awful moment, insanely ignorant of what he was doing – utterly unaware that he was doing wrong – is a question which there exist no longer any human means of determining; but it is open to us to examine the principles applicable to such an investigation in a court of criminal justice.

Upwards of seven years have elapsed since the trial of M'Naughten, and upwards of ten years since that of Oxford; and both of them are at the present moment inmates of Bethlehem Hospital. Since commencing this article, we have been permitted, through the courtesy of the acute and able physician to whom the superintendence of that important institution has been for some years intrusted, to see and converse with the two persons with whose fate we have herein so anxiously concerned ourselves. Neither knew of our going; and we were accompanied by the gentleman in question.

M'Naughten was standing in the courtyard, dressed in the costume of the place, (a pepper-and-salt jacket and corduroy trousers,) with his hat on, knitting. He looks about forty years old, and in perfect health. His features are regular, and their expression is mild and prepossessing. His manner is tranquil. Usually he wears his hat somewhat slouched over his eyes, and sidles slowly away from any one approaching him, as if anxious to escape observation; but on this occasion he at once entered into conversation with our companion, calmly and cheerfully, and afforded us a full opportunity of watching him. Had we seen him casually elsewhere, and as a stranger, we should have thought his countenance indicative of a certain sort of cheerful quiet humour, especially while he was speaking; but to us it seemed certainly to exhibit a feeble intellect, shown chiefly by a faint flickering smile, even when he was speaking on the gravest subjects. When asked what had brought him where he was, he replied, "Fate." "And what is fate?" "The will of God – or perhaps," he added quickly, "of the devil – or it may be of both!" and he half-closed his eyes, and smiled. – [The reader will bear in mind what was deposed at the trial, as to his infidel tendencies.⁴²] – When told that Sir Robert Peel was dead, he betrayed no emotion, nor exhibited the slightest interest. "One should have thought that, considering what has happened, you would have felt some interest in that gentleman." He looked rather quickly at the speaker, and said calmly, with a faint smile, "It is quite useless to talk to me on that subject: you know quite well I have long and long ago made up my mind never to say one word about it. I never have, and I never will; and so it would be quite childish to put any questions."⁴³ … "How are you, M'Naughten?" He slightly sighed, and said, "I am very uncomfortable. I am very ill-used here; there is somebody [or something] always using me ill here. It is really too bad! I have spoken about it many, many times; but it is quite useless. I wish I could get away from this place! If I could just get out of this place, and go back to Glasgow, my native place, it is all I would ask for: I should be quite well there! I shall never be well or happy here, for there is always some one ill-using me here." "Well, but what do they do to you?" "Oh," shaking his head, and smiling, "they are always doing it; really it is too bad." "Who are they?" "Oh, I am always being ill-used here! My only wish now is, to get away from this place! If I could only once get to Glasgow, my native place!" This is the continual burthen of his song. It is needless to say that his complaints are altogether unfounded: he is treated with the utmost kindness consistent with his situation; and, as he has never exhibited violence nor ill-behaviour, it has never been necessary to resort to personal coercion, with one exception. Two or three years ago, he took it into his head that, as he could not get away, he would starve himself; and he persevered for such a length of time in refusing all kind of food that he began to lose flesh fast. At length he was told by the physician that, since he would not eat voluntarily, he must be made to eat; and it was actually necessary to feed him for a considerable time mechanically, by means of the stomach pump. Under this treatment he presently regained his flesh, in spite – as it were – of himself; and at length suffered himself to be laughed out of his obstinacy, and has ever since taken his food voluntarily. He seemed himself to be tickled by a sense of the absurdity of which he was guilty. Not a doubt of his complete insanity was entertained by my acute companion, who has devoted much observation to the case. Shortly after we had quitted him, and were out of his sight, he put away his knitting, placed his hands in his jacket pockets, and walked very rapidly to and fro, his face bent on the ground; and he was apparently somewhat excited. Whatever may have been the state of M'Naughten at the time to which our inquiries have been directed in this article, we entertain little, if any doubt, that he is now in an imbecile condition.

Oxford was in another part of the building, standing alone, at the extremity of a long corridor, gazing through a heavily-grated window, towards the new Houses of Parliament. His hat was on; he was dressed like M'Naughten, and his jacket was buttoned. We scarcely recognised him, owing to the change of his dress. He is fond of attracting the notice of anybody; and conversed about himself and his offence in the most calm and rational manner conceivable. He has lost much of his hair – a circumstance which he appeared somewhat to regret – for the front of his head is bald; but he looks no older than his real age, thirty. He is mortally weary of his confinement, and says he has been terribly punished for "his foolish act." "Foolish!" we exclaimed – "is that all you can say of your attempt to shoot her Majesty?" He smiled, and said, "Oh, sir, I never attempted to shoot her; I never thought of such a thing. I aimed at the carriage-panels only." "Then why did you put balls in your pistols?" "I never did," he replied quickly. "I never dreamed of such a thing. There were no balls." "Oh, then you have not heard of the discovery that has just been made – eh?" "Discovery – what?" "The bullets." "Oh, there have been more found than ever I used at least; for I assure you I never used any!" "What made you do what you did?" "Oh, I was a fool; it was just to get myself talked about, and kick up a dust. A good horse-whipping was what I wanted," he added, with a faint sigh. These were his very words. "Should you have done it, if you had thought of coming here?" "No, indeed I should not; it has been a severe punishment!.. I dare say public opinion says nothing about me now; I dare say it thinks I have got what I very well deserve – and perhaps I have; but possibly if I were put quietly out of the way, and sent abroad somewhere, public opinion might take no notice of it." He has taught himself French, Italian, and German, of which he has a fair knowledge. He also used to draw a little, and began to write a novel; but it proved a sorry affair, and, being discouraged, he threw it up. "Do you recollect hearing the condemned sermon preached to Courvoisier?" "Oh, yes, very well. It was a most excellent sermon." "Did Courvoisier seem to attend to it?" "Oh yes, very much; and he seemed very much affected. It was certainly a very appropriate sermon; I liked it much." "Did not you think that it might soon be your fate to sit where he was?" "What, in the condemned seat?" "Yes." "Oh, no; that never occurred to me. I never expected to be condemned for high treason. Some gentleman – I forget who he was – said I should be transported for fourteen years. I thought that was the worst they could do to me; for I knew I had never meant to do any harm, nor tried to do it." "Yes; but the judge and jury thought very differently." "Oh, I was very fairly tried; but I never expected to be brought in mad. I was quite surprised at that, for I knew I was not mad, and I wondered how they were going to prove it." We asked him if he had ever seen us; to which he replied, gazing steadily, "Yes, I think I have – either at the Privy Council, or in Newgate Chapel." "Where did you sit on the Sunday when the condemned sermon was preached to Courvoisier?" "I sate on the steps near the altar." "How were you dressed?" "Oh, a blue surtout, with velvet collar;" and he proceeded to describe his dress almost exactly as we have described it at the commencement of the article. He exhibits considerable cleverness: whatever he does, whether in playing at fives, or working, (e. g. making gloves, &c.) he does far better than any one else, and shows considerable tact and energy in setting his companions to work, and superintending them. He admits that he committed a very great offence in having done anything to alarm the Queen, and attributes it entirely to a mischievous and foolish love of notoriety. He said, "I thought it would set everybody talking and wondering;" but "never dreamed of what would have come of it – least of all that I was to be shut up all my life in this place." … "That list of conspirators, and letters from them, that were found in your lodgings – were they not real?" "Oh, no," he replied, with rather an anxious smile, "all mere sham – only nonsense! There was never anything of the sort!" "Then, why did you do it?" "It was only the folly of a boy; I wasn't nineteen then – it was very silly no doubt." "And their swords and dresses, and so forth – eh?" "Entirely nonsense! It was a very absurd joke. I did not think it would come out so serious. I did not appreciate the consequences, or I never would have done it." The word "appreciate" he used with a very marked emphasis.

We entertain no doubt whatever of his perfect sanity; and, if so, as his crime was great, so his punishment is fearful.