INSANITY AND CRIME.

HL Deb 13 March 1843 vol 67 cc714-44

The Lord Chancellor

I have felt anxious, my Lords, at the earliest possible day to call your Lordships' attention to the subject of the notice, which I gave on a former occasion, with reference to a late trial. The circumstances connected with that trial have created a deep sensation amongst your Lordships, and also in the public mind. I am not surprised at this. A gentleman in the prime of life, of a most amiable character, incapable of giving offence or of injuring any individual, was murdered in the streets of this metropolis in open day. The assassin was secured; he was committed for trial; that trial has taken place, and he has escaped with impunity. Your Lordships will not be surprised that these circumstances should have created a deep feeling in the public mind, and that many persons should, upon the first impression, be disposed to think that there is some great defect in the laws of the country with reference to this subject which calls for a revision of those laws, in order that a repetition of such outrages may be prevented. I have felt it my duty, my Lords, in consequence of some suggestions from your Lordships, to consider (in consultation with others) this interesting and important subject, with the view not only of ascertaining correctly what the law is, with reference to it, but for the purpose also of ascertaining (if the law should turn out to be defective) what particular remedy should be applied, and what the nature of that remedy should be. Your Lordships will be aware that this is a most difficult and delicate subject: because all persons who have directed their attention to these inquiries, all persons who are best informed upon it, concur in stating that the subject of insanity is but imperfectly understood. I am not now speaking of general and complete mental alienation. I am speaking of that description of insanity which consists of a delusion directed to one or more subjects, or one or more persons; and those who are acquainted with this subject know how difficult it is to decide to what extent the moral sense and the moral feeling that guide men's actions is influenced by delusions of this description. We all know that persons who labour under mental delusion with respect to one or more objects are entirely, or apparently entirely, rati- onal with respect to others. They are frequently very intelligent, frequently very acute. It is often extremely difficult to discover the existence of this concealed malady, and the persons who labour under it are uncommonly astute in defeating all endeavours to detect its existence. We almost all of us recollect and know the statement made by Mr. Erskine, in his able and eloquent defence of Hatfield, with respect to the acuteness with which persons who labour under infirmities of this description defeat the skill and sagacity, and over-reach the intellect of the most experienced person. Mr. Erskine tells us of the instance of a prosecution having been directed by a person who had been confined in a lunatic asylum against his brother and the keeper of the asylum for false imprisonment and undue restraint. Mr. Erskine was counsel for the defendant. He says he was informed in his brief and in his instructions that the man was un doubtedly insane; that the particular infirmity existing in his mind was not disclosed to him; that the prosecutor himself appeared as a witness in support of the indictment; that he was put into the witness-box and examined, and that his evidence throughout the whole of his examination was clear, distinct, collected, rational. Mr. Erskine adds, that he tried to discover some lurking aberration of mind in the course of a cross-examination, conducted, for nearly an hour, with all the dexterity and skill of which he was capable. All his endeavours were foiled. The man's answers were completely rational, betraying not the slightest appearance of mental alienation. At this moment a gentleman came into court who had been accidentally detained elsewhere, and whispered into Mr. Erskine's ear that the witness thought he was the Saviour of mankind. The moment that Mr. Erskine received that hint, he made a low bow to the witness, addressed him in terms of great reverence, and respectfully begged to apologise for the unceremonious manner in which he had treated a person of his sacred characte. Mr. Erskine called him Christian, the effect of this mode of address, instant as the touch of Ithuriel's spear, elicited the truth, and showed the real infirmity of the man: he immediately answered "Thou hast spoken: I am the Christ." The case immediately terminated. A similar case is stated by a French writer, M. Pinel, in his work on insanity, with respect to a person confined in the Bicetre. A commission was appointed to visit that prison for the purpose of liberating those persons who were confined there as being of unsound mind, but who were not labouring under that calamity. M. Pinel states, that he examined one particular patient repeatedly upon many successive days, and, though he was a person experienced in those inquiries and a man of considerable learning and sagacity, all his endeavours to prove the man insane were frustrated and foiled. The result was, he ordered a certificate to be prepared for his liberation. It was necessary, before the man was liberated, that he should himself sign the certificate. It was placed before him, and he signed "Jesus Christ." Of course the certificate was destroyed, and the man was not liberated. I might mention a vast, variety of instances to show the various shapes and forms that insanity of this description takes—instances collected from the works of the medical writers and jurists of this country, of France, and of Germany, where this subject has been much and deeply investigated. The result would be, that your Lordships would be satisfied that any attempt at a definition or description of the particular disease would be altogether futile, and that the only course we can pursue is to lay down some general and comprehensive rule, and to leave those who administer the laws of the country to apply that rule to the different cases as they may arise. The first question for our con sideration is, what is the actual law of the country with respect to crimes committed by persons labouring under infirmities and disase of this description. I apprehend, when your Lordships' come to consider it, you will find that there is no doubt with respect to the law—that it is clear, distinct, defined; and I think the result upon your Lordships' minds will be, that it will be quite impossible beneficially to alter the law, or to render it better adapted than it is, in the shape in which it now exists, for the purpose for which it is designed. On this subject I wish to be as clear and perspicuous as possible. It is a subject of great importance, and one in which the public take a deep interest. Every thing, therefore, connected with it ought to be laid before the public, through your Lord ships, with the utmost possible precision. I do not think it necessary to quote any text writer on this subject. I shall go at once to the fountain head, and quote for your Lordships what learned judges, in the administration of justice, have said as applicable to this subject, and point to the rules which they have laid down for the guidance of those who have to decide on the criminality or innocence of the parties standing accused before them. The first authority to which I beg to refer is that of a most learned and most accurate judge. I speak in the presence of my noble and learned Friends who recollect that learned judge, and who will concur with me in saying that he never was exceeded by any person administering justice in the accuracy of the view he took of the law. I mean Mr. Justice Le Blanc. I will state to your Lordships how the law was laid down by that learned judge in a case that was tried before him at the Old Bailey, in 1812, six months after the trial of Bellingham. The circumstances of the case, as far as is necessary to mention them in order, to introduce the judgment to your Lordships, are shortly these; the prisoner had entertained a great antipathy against a particular person named Burrowes; there was no foundation in fact for that antipathy; the person obnoxious to the prisoner had never given the slightest cause of offence; the prisoner, with great deliberation, loaded a blunderbus and shot this person. Fortunately, however, the man was not killed. The prisoner was tried under the act for shooting—a capital offence. The defence that was set up was "insanity." The prisoner had had an epileptic fit, which not un frequently does produce infirmity of mind. About a month previous to the act of violence for which he was tried, a commission of lunacy had been issued against him. The jury empanelled upon that occasion returned a verdict of insanity. Mr. Warburton, the keeper of a lunatic asylum, a man of great experience in these matters, stated, that in his opinion the prisoner was insane, and that insanity of such a description as that under which the prisoner was labouring often led to the harbouring and entertaining of the strongest antipathies, without any cause, against particular individuals. This was the substance of the case presented to the jury. The judge, with respect to the main point, summed up in these words:— It is for you (the jury) to determine whether the prisoner, when he committed the offence with which he stands charged, was, or was not, incapable of distinguishing right from wrong, or whether he was under the influence of any delusion with respect to the prosecutor which rendered his mind at the moment in sensible of the nature of the act he was about to commit, since, in that case, he would not be legally responsible for his conduct. On the other hand, provided you should be of opinion, that when he committed the offence he was capable of distinguishing right from wrong, and was not under the influence of such a delusion as disabled him from distinguishing that he was doing a wrong act, in that case he is answerable to the justice of his country, and guilty in the eye of the law. He was found guilty by the jury, and afterwards, I believe, executed. I apprehend, that that is the law of the land as far as relates to this subject. If a man, labouring under some mental delusion, acts under the influence of that delusion, and the influence of the delusion is so powerful as to render him incapable of distinguishing right from wrong, in that case he cannot be considered in law as responsible for his act. I apprehend, that all the decisions will show that that is the law of the country. The next case to which I shall beg to call your Lordships attention upon this subject is the case of Bellingham, tried before Chief Justice Mansfield. 1 have thought it of importance in this case, on account of the different observations that have been made upon it, to request the solicitor to the Treasury to search to see if there were any short-hand writer's minutes of the proceedings at the trial. The short-hand writer's minutes have been sent to me, and this is the substance of the summing-up of the learned judge who presided, as far as relates to the report now before us. It is unnecessary for me to enter into any of the facts of the case, because they must be sufficiently fresh (notwithstanding the interval of time) in your Lordships' recollection. Chief Justice Mansfield, after making some observations upon the case of men labouring under a total absence of reason proceeds thus:— There is a species of insanity, where people take particular fancies into their heads who are perfectly sane and sound of mind upon all other subjects; but that is not a species of insanity which can excuse any person who has committed a crime, unless it so affects his mind at the particular period when he commits the crime, as to disable him from distinguishing between good and evil, or to judge of the consequence of his actions. And afterwards Chief Justice Mansfield put the case to the jury thus:— The question is this, whether you are satisfied that he (the prisoner) had a sufficient degree of capacity to distinguish between good and evil, and to know that he was committing a crime when he committed this act; in that case you will find him guilty. So that although the expressions in some sort vary, the two jugments of these two learned judges are, I apprehend, in substance exactly the same; namely, that if the party at the time that he committed the act was in such a state of mind—in such a state of sanity, as to know that he was doing a wrong thing—in that case, but not otherwise, he was amenable to the law. There was an earlier case, to which I shall also call your Lordships' attention, the case of Hatfield. Mr. Erskine, in his most eloquent and powerful defence of the prisoner upon that occasion, stated what he conceived to be the law in eases of this description. When a man," said he, "is labouring under a delusion, if you are satisfied that the delusion existed at the time of the committal of the offence—that the act was done under its influence—then he cannot be considered as guilty of any crime. That was stated in the most eloquent terms by Mr. Erskine to be the law with respect to cases of this nature. The trial of Hatfield was a trial at bar in the Court of King's Bench, and, of course, all the judges of that court attended. Lord Kenyon presided. Lord Kenyon interrupted the defence before it was closed, and made these observations:— Mr. Attorney-general, can you call any witnesses to contradict these facts?—With regard to the law, as it is laid down, there can be no doubt upon earth; to be sure, if a man is in a deranged state of mind at the time, he is not criminally answerable for his acts; but the material part of this case is, whether, at the very time when the act was committed, this man's mind was sane? He then went on to make some observations on the evidence, and afterwards added:— His sanity must be made out to the satisfaction of a moral man meeting the case with fortitude of mind, knowing he has an arduous duty to discharge, yet, if the scales hang anything like even, throwing in a certain proportion of mercy to the party. Your Lordships, find, therefore, that, in the case which preceded the two others, that I have brought under your notice, Lord Kenyon, and through him all the other judges of the Court of King's Bench, were of opinion that the law as laid down by Mr. Erskine was correct, and that if the man who committed a crime was insane at the time he committed it, that is to say, was labouring under such disease of the mind as not to know whether he were doing right or wrong, in that case he was not a subject for a criminal trial. No departure has been made from the rule of law thus laid down by the three learned judges to whom I have referred. The rule of law so laid down by them was not laid down when those learned judges were sitting alone, but when they were sitting in connection with the other judges of their respective courts, whose opinions, of course, must be taken as having corresponded with theirs. No alteration has taken place in that rule of law, or in the view of it by any of the learned judges who have presided at the late trials. In Oxford's case Lord Chief Justice Denman laid down precisely the same law, and, in order that there might be no mistake with respect to it (being a subject of such deep interest and importance), he consulted the other judges, Mr. Justice Patteson and Mr. Justice Alderson, who were sitting with him, and they concurred with him in a written note as to what was the law upon the subject. The note so agreed upon was read by the Chief Justice to the jury. I take it, therefore, that the law is distinctly settled and distinctly understood upon this subject. If it be so, the next question for your Lordshids' consideration is, whether there is any reason to alter, or I should say any possibility of altering, the law. Can your Lordships say that if a man, when he commits a crime, is under the influence of delusion and insanity, so as not to know right from wrong, so as not to know what he is doing—is it possible that your Lordships can by any legislative provision say, that such a man shall be responsible for his act, and be liable to lose his life for the wrong he has unknowingly committed? It is impossible. Your Lord ships might pass such a law; you have the power to do so; but when you came for the first time to put it into execution, the sense of all, the feeling of all reasonable men, would revolt against it, and your Lordships would be obliged to retrace your steps, and to repeal the law which you had passed in a moment of excited feeling in consequence of recent painful impressions, but which you could not have passed under the influence of sober and steady reason. Lord Coke says, that to execute an insane person is contrary to all law, and pregnant with the greatest danger. If your Lord ships entertain any doubt as to the law, you have a course to pursue which is perfectly open to you; it is this—to summon the judges of the land before you, to hear their opinion upon the law; and as the subject is one of great importance to the country, to obtain from them a rule laid down by their united authority, by which to guide the future administration of justice in cases of this description. A rule laid down by the united authority of all the judges might possibly have more influence and more force than the opinion of a single judge conveyed in a charge to a jury. It is for your Lordships to say, whether you think it necessary to resort to such a course. But your Lordships will naturally ask, and with some anxiety and curiosity, what the law of other countries is upon this subject. The law of other countries corresponds, and of necessity must correspond, precisely with our own. The law of Scotland is thus explained by Mr. Alison, a learned writer upon the criminal law of that country:— To amount to a complete bar to punishment the issanity at the time of committing the crime must have been of such a kind as completely to deprive the prisoner of reason with respect to the act in question, and the knowledge that he was doing wrong. And if your Lordships refer to the valuable treatise on criminal law by Baron Hume, although the views of that learned writer are more expansively directed and more loosely expressed upon this particular point, your Lordships will yet deduce from him the same conclusion as to the state of the law upon this subject in Scotland. I will now call the attention to a particular case cited by Mr. Alison on the subject. A man was indicted for the murder of another by shooting him whilst he was going across a moor. The defence set up was insanity, and the delusion the prisoner laboured under was this. He supposed the man whom he had shot to be an evil spirit, whom he was commanded by the Almighty to kill. No one doubted that if the facts necessary to support the defence had been made out to the satisfaction of the jury, the judges (it is clear from the way in which the case was conducted) would have considered it a substantial defence; but the facts were not made out, and the man was found guilty from the defect in the evidence, the jury being of opinion, under the direction of the court, that there was not sufficient evidence to show that at the time the man committed the act he really was labouring under that delusion. My Lords, to pass from Scotland to France. In the Code Napoleon (the criminal code not leas of ancient than of modern France) the French law on the subject is thus laid down:— With respect to every crime, and every misdemeanour, no man can be made accountable, who, at the time he does the act, is under alienation of mind. And though, my Lords, I have no particular text writer to quote as to the law of Germany on the subject, I have read many German treatises upon it, in which cases are cited satisfying me that the law of Germany in this respect corresponds with the law of France, the law of Scotland, and our own. The question then is, whether we can, under these circumstances, attempt to vary the law? Is it practicable? Is it possible? and, allowing it to be even practicable, would it be judicious? My Lords, some persons say, "Define precisely what the law is." I say, to attempt to define upon a subject with which we are as yet only partially acquainted would be difficult and dangerous. Let us leave the general law as it stands, and let the judges, before whom prisoners are arraigned and tried, apply the particular facts to the law so laid down. My Lords, I have heard it said (it is an argument I have heard in the streets), "The object of punishment is the prevention of crime; that you do not punish a criminal by way of retribution; not in a spirit of vengeance upon guilt, but to prevent other persons from committing a similar error." Therefore, it may be said, and it has been said, that although a man is under an insane delusion at the time he commits the offence, yet knows what will be the effect of the act he commits—that is, if he knows that if he fire a pistol it will kill a man that that is a sufficient foundation for carrying the criminal law into operation against him, to prevent others from committing the same crime. My Lords, I should have dealt shortly with a position of this kind, if I had not found it supported in the writings of such high an authority as those of a most rev. Prelate —not at this time, I believe, a member of your Lordships' House, but connected with another part of the United Kingdom. [A Peer intimated to the noble and learned Lord that he was mistaken]. I spoke at the moment in uncertainty, whether or not the most rev. Prelate be now a member of your Lordships' House. However, the most rev. Prelate, after stating a position precisely the same as that I have put, illustrates his position by the example of a dog accustomed to worry sheep. The animal has no moral sense—no ideas of good and evil; but still you punish that dog—you punish him to correct and prevent him from worrying sheep. That is the illustration of the most rev. Prelate. And now with respect to the position. You punish not in a spirit of vengeance, but as an example to deter others from committing other similar offences. But what is the way you do this? Do you punish persons incapable of committing the crime for which you punish? Or do you punish a person guilty of an offence which is not subject to the punishment you award? No, my Lords. The person must, in the first instance, deserve the punishment, and you then inflict the punishment, not in a spirit of vengeance, but with the object to which the most rev. Prelate alludes. I confess, my Lords, knowing what I do of the sagacity and profound learning of that most rev. Prelate, that I am surprised at his having fallen into what I must, with the utmost deference, consider to be such a logical absurdity. You punish the dog; granted, but not for an example to other dogs. My Lords, if you should be satisfied that I have stated the law correctly, and that no change can take place in that rule of law, the next question' for consideration is this, whether an alteration can be made, or ought to be made, in the form and mode of administering that law. My Lords, as I apprehend, this is equally impracticable. A man accused of the commission of a crime has a right to be charged to a jury, and to have counsel assigned to him for his defence. He has a right to call such witnesses as he may think proper, for the purpose of establishing that defence. His counsel has the right—indeed, it is his duty so to do—to make such observations upon his case, both as to the law and the facts, as he may think most available for the interests of his client; and then the jury is to decide upon the question of the facts. Over the whole of this proceeding, a learned Judge presides, whose duty it is to decide upon the admissibility of evidence, to state the law to the jury, to sum up the facts, and comment upon them with reference to the law; and then to leave the whole, as a question of facts, for the consideration and determination of the jury. That, my Lords, is the form and mode of proceeding in this, as in every other criminal case. Can you change it? Is it practicable to do so? No man can entertain a doubt upon that point. If, then, not only the rule of law, but the mode of administering it be right, what room is there for legislation? You may say, that in a particular instance the law has not been well administered—that the jury drew improper conclusions from facts —that theoretical statements were made to them, which were not justified by science, and that, influenced by them, the jury arrived at an improper conclusion. That is a misfortune to which we must submit, because it cannot be remedied by legislation. The prosecution in the particular case which has given rise to this discussion was conducted by a learned Friend of mine, filling a high legal office, and as distinguished for remarkable talents, as a lawyer and an advocate, as any man who ever preceded him in the discharge of the important duties he has undertaken. The learned Judges who presided at the trial, three in number, were among the most eminent and enlightened judges of the empire—the Lord Chief Justice of the Common Pleas and two judges of the Court of Queen's Bench, men of admitted learning, exalted talent, and long experience, men most conscientious in character, these were the persons who presided at the trial. What was the law as laid down by the Lord Chief Justice? Precisely the law I have stated. I sent for the short-hand writers' notes of the summing up. I thought it proper to look to this document for the purpose of being sure as to the words made use of by the learned Judge; and I will read it to your Lordships the precise words reported:— The point which will be at last submitted to you will be, whether or not, on the whole of the evidence you have heard, you are satisfied that at the time the act was committed for the commission of which the prisoner stands charged, he had not that competent use of his understanding as not to know what he was doing, with respect to the act itself, a wicked and a wrong thing—whether he knew it was a wicked and a wrong thing he had done —or that he was not sensible at the time he committed this act that it was contrary to the laws of God and man. Undoubtedly, if he were not so sensible, he is not a person so responsible. The learned Judge, towards the close of his summing up, says— If, upon balancing the evidence in your minds, you should think the prisoner a person capable of distinguishing right from wrong, with respect to the act with which he stands charged, he is then a responsible agent, and liable to the penalties imposed upon those who commit the crime of which he is accused. No person can quarrel with that statement of the law by the Lord Chief Justice. The only question is, whether the jury, when the law was so laid down, drew a right conclusion from the facts stated in evidence before them. My Lords, it has been said, why did the learned judge not suffer the trial to take its course to the very end? I think, considering all the circumstances that have since occurred, it would have been far better if that course had been taken. But, at the same time, I do not believe for a moment there would have been the slightest alteration in the issue; and my reason for so thinking is this: many medical men, highly experienced on the subject, were examined on the part of the prisoner, and there were two medical gentlemen of great eminence on the part of the Crown, who had themselves examined the prisoner, with a view to arriving at the conclusion whether he were sane or not at the time this act was committed. Those medical men were sitting in court, and they were not called on the part of the prosecution. My Lords, these gentlemen not being called upon the part of the prosecution, what is the inference—the absolutely necessary inference? Why, that instead of opposing the testimony of the other medical men, they would have coincided with and have confirmed it. I know of my own knowledge that such would have been the fact. Is it possible, then, if the case had gone to an issue under these circumstances, that the verdict could have been other than that which the jury actually pronounced? In Hatfield's case, which, as I have said, was a trial at bar before the King's Bench of that time, the learned judge interposed, and asked the Attorney-general, "Can you contradict these facts—can you call wit nesses to answer or disprove them?" The Attorney-general having replied in the negative, Lord Kenyon said it was then impossible to doubt the fact. In that case, therefore, precisely the same course was pursued as in the present. And here, my Lords, give me leave to say, that no person, except those present at the time, and who actually saw what was going on, can form a correct estimate of what was the prudent course to pursue under the circumstances. I have thought it my duty to make these observations to your Lord- ships. For myself I have only read the general evidence as reported in the newspapers, and, therefore, I cannot say if the testimony was of a nature to justify the verdict. I say nothing whatever. I express no opinion upon that subject. But knowing as I do the extraordinary talents and powers of the learned counsel for the prosecution, the eminent attainments and high character of the learned judges who presided, I must say that, except upon the strongest, possible testimony from witnesses of the most unimpeachable character— persons who had seen the whole proceedings—I never could bring myself to the supposition that justice had not been fairly and substantially done. My Lords, what then is the conclusion to which we must come? That no alteration can be made, or ought to be made, in the rule of law on the subject—that no alteration can be made, or ought to be made, in the mode of administering the law. The only thing, therefore, left for us to consider is, whether, in the way of legislation, measures of precaution stronger than those now in existence can be taken; and to ascertain the extent to which we can proceed in that direction. In a few days I shall be enabled to lay on the Table of the House a measure which, I trust, may be effective. Taking into consideration the skill exhibited by parties labouring under these delusions, I cannot undertake to say that cases of this kind will not occasionally occur. They have occurred from time to time in this country, in France, indeed in every country of civilized Europe. We may not be able effectually to guard against their recurrence, but still we must by legislation do the utmost in our power for the purpose. My Lords, if with respect to the general law, your Lordships think it necessary to take the opinion of the judges, and to have their united authority on the subject, I will request the attendance of those learned persons. I think such a course will give great authority and great force to the proceedings, and may be attended with practical consequences of good, far better than by interfering by legislation. Let us know from the highest authority, from the voice of the judges, what the law is, let it be laid down by them in precise terms, together with what is to be in future the administration of that law according to their opinion. My Lords, in the course of two or three days, I repeat, I will lay upon the Table of the House the bill of which I have given no- tice; and if, in your Lordships' opinion, such a course is necessary, I will request the attendance of her Majesty's judges, with a view to the object I have stated.

Lord Brougham

said, he had risen thus early, as might be expected, in consequence of having been the first to call the attention of his noble and learned Friend on the Woolsack, and also that of his noble Friend's colleagues, to the subject of the late trial. Although there was, strictly speaking, no question before their Lord ships, he trusted they would bear with him for a while, as they had borne with his noble and learned Friend, whilst he offered a few observations to their attention on a subject of the greatest possible importance, and which, he entirely agreed with his noble and learned Friend, it was necessary to consider with the greatest attention. He cordially and entirely agreed with his noble and learned Friend in the panegyric he had so eloquently, as well as justly pronounced, both upon his hon. and learned Friend, the Solicitor-general, and upon the three learned judges who had presided at the trial in question, and with his noble and learned Friend he had every possible confidence that everything had been done which the exigency required, and which the nature of the case and of the proceedings demanded. But without imputing blame, he might on this occasion feel disposed to express an opinion upon the subject, although without entering upon it further than one single sentence. Although he, for one, had no doubt the course taken had been most properly pursued, he was bound to say he should have infinitely prefered that the case should have been tried to the end — that the case should have reached its natural and appointed conclusion, that the other witnesses had been called, that the reply of the Solicitor-general had been heard, commenting upon the evidence and the doctrine laid down by the counsel for the prisoner, and, above all, that the learned judge had had the opportunity in his summing-up of charging the jury with the prisoner, and of stating explicitly the grounds upon which his Lordship might have thought it was not a case for conviction. With the conduct of the trial, any more than with the result, he had no fault to find. He had no doubt that the accounts of the trial which he had read were incorrect, and that some of the evidence allowed to be given, not objected to by the counsel for the prosecution, and not rejected by the learned judge, must have been inaccurately reported in those accounts to which he had had access. And his reason for doubting their accuracy was this —he took upon himself to say, that as those accounts stood, certain evidence was given which ought not to have been given, that questions were put which the law did not permit to be put: and that statements were drawn from the witnesses as served for evidence which by law were not competent or admissible as evidence. It was, therefore, he believed, that the accounts he had seen were extremely erroneous in those respects. If the House would look at what was laid down by Lord Hardwicke, then sitting as Lord High Steward at the trial of Earl Ferrers in 1760, when that very kind of evidence was tendered, when those very questions were put to the witnesses, and when Lord Camden, then Attorney-general Pratt, objected to that evidence and those questions, they would find that Lord Hardwicke said, that the question must not be put, that it was not legal evidence; and his Lordship said, you must not ask a witness whether the facts sworn to by other witnesses preceding them amounted to a proof of insanity; you shall state the facts to the witnesses—men of skill in their profession—and you shall ask if such a fact is an indication of in sanity or not—you shall ask them, upon their experience, what is an indication of insanity—you shall draw from them what amount of symptoms constitutes insanity; but you shall not remove the witness from the witness-box into the jury-box; be he a medical man of the most unquestionable skill—the most practised in that most useful but most painful walk of his vocation; be he the most competent possible to give us the result of his practical observation and experience, still you shall not transfer that witness from the witness-box into the jury-box, but you shall ask him what symptoms his experience indicates to him as a test of insanity, or sanity, and leave it to the judge, or rather the jury, to say whether the man be guilty or not guilty, he being sane or insane. For these reasons, therefore, he had no doubt that he had seen an incorrect account of what had passed on the trial he was now referring to. He agreed with his noble and learned Friend in that luminous view of the authorities which his noble Friend had taken, and which could not have failed to make that impression upon their Lordships which it was so well calculated to effect. Those persons were grievously mistaken who supposed that the law of England required change either as to the subject matter or as to the mode of administering it. With respect to the point of a person being an accountable being, that was an accountable being to the law of the land, a great confusion had pervaded the minds of some persons whom he was indisposed to term reasoners, who considered accountability in its moral sense, as mixing itself up with the only kind of accountable-ness with which they, as human legislators, had to do, and of which they could take cognizance. He could conceive a case of a human being, of a weekly-constituted mind, who might, by long brooding over real or fancied wrongs, work up so perverted a feeling of hatred against an individual, that danger might occur. He might not be deluded as to the actual existence of injuries he had received, but he might grievously and grossly exaggerate them, and they might so operate upon a weakly-framed mind and intellect as to produce crime. He could conceive that the Maker of that man, in his infinite mercy, having regard to the object of his creation, might deem him not an object for punishment. But that man was accountable to human tribunals in a totally different sense. Man punished crime for the purpose of practically deterring others from offending by committing a repetition of the like act. It was in that sense only that he had anything to do with the doctrine of accountable and not accountable. He could conceive a person whom the Deity might not deem accountable, but who might be perfectly accountable to human laws. What was the test as laid down by the learned judges? Here he might observe that he could have wished those learned persons had always used the same language, and that they had been pleased to substitute for certain vague indefinite expressions a more specific and precise phraseology. Their Lordships had sometimes said that a man must be "capable of knowing right from wrong." That was the most common definition; but at other times they had said he must be "capable of distinguishing good from evil"—a totally different expression more vague and lax. Why, a man might doubt what was good and what was evil. A man might know right from wrong, and not know good from evil. Then there came in a third expression—"Capable of knowing what was proper." Another expression used was, "What was wicked." So that there were four different tests, in four different forms of language and expression. Every one of them more vague, more uncertain, less easily acted upon than the original one of right and wrong. Their Lordships would, perhaps, think him even more than hypercritical, if he avowed that he should not have been satisfied if the expression of "knowing, right from wrong," and no other expression, had been used throughout, because, before applying it, it would have been incumbent upon him to distinctly ascertain what was right and what was wrong. He was not sure that people always judged accurately upon that point. He was not sure that juries always knew right from wrong. He knew, and their Lordships knew perfectly well, what those learned judges meant by "right from wrong," but he was not sure that the public at large did. Above all, he was not sure that men whose understandings were a little affected had a distinct apprehension of what the judge meant when he spoke of right and wrong, and the capacity to distinguish between these being the test of insanity or sanity. First of all, did the unfortunate person know what he was about? Did he actually know he was killing a man? Or did he think, peradventure, he was destroying some evil spirit, or some bird or beast? If he did not know he was killing a human being if he did not know what he was doing at all—if he was so idiotic as to be utterly and entirely ignorant of what he was about —he was no more subject to punishment, no more accountable to a human tribunal than an animal. But the difficulty and the question arose—after you had ascertained that the man knew what he was actually about, that he took the usual precautions which any rational man would take the better to effect an object, that he was cognizant of a purpose framed in his own mind, and takes measures to bring about its accomplishment, then came the question and the difficulty was, he labouring under such a delusion that he could not distinguish what the learned judges called right from wrong? If a man was so placed under the influence of a peculiar notion of right and wrong in the abstract, he might think he had a perfect right to prostrate to the ground a man with regard to whose conduct to himself individually, or to mankind at large, he had thought, in his exaggerated and perverted way, had deserved the fate. Bellingham was tried and executed for the murder of Mr. Perceval, and no man had ever died more deservedly or more justly; yet there were many persons who had said that the refusal of the learned judge to give time for the bringing forward evidence to prove the insanity or sanity of the accused man was most deeply to be deplored; and he would go further, and say, that that learned judge was most profoundly to be blamed. He had never known Lord Erskine, with whom he had discussed this subject—he had never seen that illustrious advocate and great criminal lawyer, upon any one of those many subjects which they had so often canvassed together, more moved to indignation than he had been upon the case of the refusal, on the part of the learned judge, to postpone that trial. Affidavits had been made of the prisoner's family having been tainted with insanity. Affidavits had been produced from those who had known him from infancy of his having been insane. Affidavits were offered, showing a primâ facie case of mental alienation. But the evidence was two hundred miles off—at Liverpool—and the learned judge thought fit to refuse a fortnight's delay, that that evidence might be produced. In these observations he merely blamed indiscretion—he did not wish to give that case the appearance of having been unfairly tried. No man doubted that the result of the trial would have been precisely the same had the evidence been adduced. Happily, on the present occasion, time had been granted, and the result was before their Lordships. It appeared that Bellingham's ideas of right and wrong were so perverted that he never could be persuaded by all the pains that were taken with him—although conscious of what he had done—the idea could never be opened into his mind that he had not done an inevitable act, and that, consequently, he was guiltless: Mr. Stephens, a friend of his, and also a most intimate friend of the late Mr. Perceval—a friend so attached that his mind was for some time after the melancholy event almost in a state of mental alienation—made it his business, not from vague curiosity, but from high religious motives, to visit Bellingham several times during the short time that was left to him, and that time was short. On Monday, 1lth May, he committed the act. At the same hour, 5 o'clock, in the afternoon of Monday 18th May, his body was in the dissecting-room. Such was the haste of the proceedings. The party was examined, committed, tried, convicted, and executed, all within the space of seven days. During that time, however, Mr. Stephens and Mr. Wilber force saw him twice. They said Belling ham had no conception that he had done anything wrong; he lamented the death of Mr. Perceval; spoke of him with the greatest respect, and even esteem for his character; said that no man could more lament that such a thing should have befallen that gentleman than he (Belling ham) did; that nothing could be more hard, both to his family and to the public and society at large; and that it was greatly to be lamented. Then, he was, asked, "Why did you do the deed?" "Oh, do it," he answered; "that was perfectly inevitable; there was no wrong at all in doing it; he could not help that." Here was a man, to whom the definition of sanity, which required the capacity of distinguishing right from wrong, had only a very narrow application; he knew the learned judges used the phrase with reference to the commands of the law. They could know only one kind of right and wrong; the right is when you act according to law, and the wrong is when you break it. Then why did not the judge say so in so many words? Distinguishing right from wrong, meant a knowledge that the act the person was about to commit was punishable by the law. That was a test that he (Lord Brougham) understood, and he was prepared to say that he differed toto cælo from the most rev. Prelate whom his noble and learned Friend had cited. If the law were not so already, which he averred it was, for it could have no other meaning, since we knew that only to be wrong which the law declared to be wrong—which the law prohibited— if the law were not so, and he misunderstood the learned judges, if they meant by right and wrong whatever any man might choose, upon any theory of morals, or idiosyncracy of his own nature, to fancy to be right and wrong—if that was their doctrine, which he was sure it could not be, then he most cordially agreed with his noble and learned Friend that they should call the judges to their bar, in order that they might give an answer, not merely to the general question, what do you mean by right and wrong, and the capacity of distinguishing between them, but to half a dozen other questions which must succeed it. He thought with his noble and learned Friend that their assistance would be invaluable, but it would be invaluable on no account more than this, that it would lead to more uniformity in the language they used on future occasions in charging and directing juries on this most delicate and important subject. They would then no longer use the words wicked, wrong, improper, blameable, proper, right, good, evil; they would no longer indulge in that variety of phrase which only served to perplex others, if it did not also tend to bewilder themselves, as he supposed it sometimes did; but they would use one constant phrase, which the public and all persons concerned would be able to understand. Now that he had mentioned it, he must say, in extenuation, if not in justification of the errors into which the most rev. Prelate fell, in dealing with a subject which was perhaps not quite so congenial to him as to members of the legal profession, that the law as it had been administered, and the opinions and language which had been used from the bench, rather tended to lead into errors of this description. He thought that must, in fairness and candour towards the most reverend prelate, be admitted. Their Lordships must observe that nothing could be more improper than to hold that they had a right to execute a person not strictly accountable to human laws, merely because doing so might have a tendency to deter another from committing a like offence. But how likely a person unlearned in the law was to fall into such an error the most rev. Prelate was an example. His noble and learned Friend had stated most justly that those unfortunate lunatic patients were extremely acute, often on all subjects but one or two. They were often also extremely astute in defeating inquiries into their state of mind, in protecting themselves from observation, and concealing their own insanity, of which a very remarkable instance or two had been cited. But he would venture to say that those very persons, who showed such acuteness in protecting themselves from inquiry, who baffled the ingenuity of all who questioned them on the particular subject of their insanity, and changed their tact so as to bewilder their interrogators, if they had been put on their own trial in defence, would have been ready, nine out of ten of them at least, if if not all, to allow the court to think them insane. Those wretched persons had a knowledge that they were safe; that they were in a predicament in which the law could not touch them. He spoke not only from the experience he had had during a period of four years in the court now presided over by his noble and learned Friend (the Lord Chancellor), during which he had had many of those unhappy persons under examination before him, but also from the long knowledge he had had of such cases at the bar, and also as having had, like most public men, considerable experience of the manner in which they threatened and beset persons in official situations—almost always with a hint thrown out (and he found that with others the case was the same) that the law did not take any notice of them, and that in that respect they were above the law. They were quite aware of the state of the law on this head. This was the case with a person whom he defended on his trial for burning York Minster, the lunatic Martin. That unhappy man was quite aware that he was safe, and he was not the only person in the same state of mind aware of that. At an asylum in the neighbourhood of York, where the case of Martin was much discussed among the inmates, the majority came to the distinct conclusion that Martin was safe, because, said they, he is like ourselves, a person of whom the law takes no notice. Those persons were in confinement, but there were many men going about with just the same opinions, who were quite aware that that was the law. All this made it necessary to define more clearly what the law was, and to consider, an object to which, he trusted, the measure announced by his noble and learned Friend would be directed, whether there was not a possibility of throwing on other persons the responsibility of allowing men to go about who ought not to be allowed to be at large, to the danger of the community, and the danger of the unhappy persons themselves. It ought to be considered, also, whether some means of detaining them, shorter and more summary than the law at present furnished, might not be provided, for the safety, first, of the community, and next of the parties themselves. The most rev. Prelate had been somewhat misled in the argument he had held on this subject. The most rev. Prelate knew that the object of all human law was not retribution —that no human law had anything to do with—but prevention, and deterring others from crime by example. The most rev. Prelate argued that the life of a lunatic was of extremely little value to himself or to society, and therefore he asked, why should not that life be taken away on the principle of punishment, seeing that madmen might be deterred by example, unless they were idiots or furious. He thought this an exceedingly feeble argument—his noble and learned Friend had justly refuted it—but it was easy to see in what way the most rev. Archbishop had been led into the argument. He (Lord Brougham) had had occasion to consult medical authorities, whose opinion was of great value on this point, and in particular one who was a very old friend of his, a man who deserved the greatest respect and veneration, as being at the head of so distinguished a profession, whose experience was very large, and his general knowledge and accomplishments very great, and who was pre-eminently well qualified to form an opinion—he meant Sir H. Halford. He had had frequent opportunities of speaking to that eminent man on this subject, and he had put to him the question whether madmen generally, or the greater number of them, were not aware of the situation in which they were, and were not apt to be deterred by the motive of fear, even more, perhaps, than any other persons? The answer was, "Most decidedly so—no doubt about it." He might take occasion to point out that the law was by no means consistent in its treatment of the insane. It did not put them to death, it spared them from capital punishment; but it confined them for life, inflicting a punishment almost as great as that of death. Thus, these beings, incapable of distinguishing right from wrong, or good from evil—who were not to be considered moral agents—who were not to be held guilty, and never committed any crime at all— were visited with the most severe punishment. That was the law as it now stood, or at least as it was administered; but he wished his noble and learned Friend to turn his attention to it. Was it the law, as it was now administered, that we had a right to shut them up for life? Suppose they were cured, and ceased to be insane—that their reason grew clear, and the clouds that obscured it passed away— when they had recovered the knowledge of right and wrong, and become accountable agents. What was done with them then? Some of them were let out, some continued to be confined; the practice was by no means uniform. If it was said that you confined them for life in order to prevent them from doing mischief—"But," said the Archbishop of Dublin, "you should hang them up, not because they have done wrong, but because hanging them will prevent others from doing the same thing." He thought it but right and candid towards the most rev. Prelate to state the circumstances he had mentioned, and also to call the attention of his noble and learned Friend towards them. With respect to the test of the knowledge of right and wrong, he wished to show to their Lord ships what was the rule followed in Lord Ferrer's case, in which it was somewhat differently put. It was proved that he was occasionally insane, and incapable, from his insanity, of knowing what he did. That was a great deal more than not knowing right from wrong, or not judging the consequences of the action, for he did not know what he was about occasionally; yet as it was proved that when he committed the offence he had capacity sufficient to form a design and know the consequences, he was found guilty and executed, not because he knew right from wrong, or could distinguish good from ill, but because he knew what he was about and could form a design. There was evidence that his friends were going to take out a commission of lunacy on Lord Ferrers, yet he was executed. In the present case, the accused went four or five times to Sir R. Peel's house for the purpose of ascertaining who Sir R. Peel was. He formed his conclusion that a certain individual was the person in quest of whom he went, because he saw him four or five times come from the house and go to what he knew was Sir R. Peel's office. The man drew the conclusion which any sane man would draw, having taken the steps which any sane man would do to inform himself on the subject. The man, no doubt, was mistaken; but so might any sane man be under the circumstances. The man, then, being determined to kill Sir R. Peel—[Several Peers: No, no; that was not in evidence]—he understood it was proved that he went to this place for this purpose — it was said he meant to kill Sir R. Peel, there was no doubt about that. The man took exactly the same steps to accomplish his purpose of killing another person that a sane man would have taken; he purchased the pistols, and, to make sure, he purchased two; he used powder and ball, charging both the pistols as anybody might do to kill an animal he wanted to dispatch; he then went and waylaid his victim, firing one pistol so near that it hit or grazed his victim. Not satisfied with that, he did just what any person in the possession of his senses would have done who wanted to make sure of his bloody work, and fired again. ["No, no."] He fired the first time, and that took effect; he was going to fire the second pistol from not being certain that he had succeeded at first, but it was utterly indifferent to his argument whether the man fired twice or once. The man's arm was then seized by the policeman and the man arrested. All this was so like the conduct of a rational man in full possession of his senses, that many persons thought, and evidently the most rev. the Archbishop of Dublin was one of them, that there ought to be some means taken to deter from similar crimes others who labour under this peculiar malady; since the malady differed so little from reason. The most rev. Prelate thought it would be a proper thing to make it a punishable offence. He thought it his duty to state these matters in defence of the most rev. Archbishop, or at least in extenuation of the charge that might be brought against him of having fallen into very great errors. It was perfectly clear, that what was called partial insanity, and what was called, very incorrectly, monomania (for there might be two points as well as one on which a person was deranged), if it existed at all times, made a person decidedly a lunatic. Whether or not the act committed by a person labouring under this delusion was an act of guilt, or something indifferent, the act of a sane or insane person, must depend on the state of his mind at the time the act was committed—he would not say at the moment of the act, for he thought that was an inaccurate expression. He could hardly bring himself to conceive, that a person having all his senses about him would commit an atrocity so great as had been perpetrated in the late case, but the character of the act would depend on the state of mind immediately before or about the time of its commission. If the perpetrator knew what he was doing, if he had taken his precautions to accomplish his purpose, if he knew at the time of doing the desperate act, that it was forbidden by the law, that was his test of sanity; he cared not what judge gave another test, he should go to his grave in the belief that it was the real, sound, and consistent test. He believed the judges meant nothing else than this; he believed, if called before their Lordships, as he hoped and trusted they would be, that they would be found to mean nothing else. He had troubled their Lordships with these observations, because he had thought it his bounden duty not to avoid a painful subject, when it was important, merely because it was painful.

Lord Cottenham

thought it was impossible to listen to any doctrine which proposed to punish persons labouring under insane delusions. Their Lordships could not mean to say, that the man who was in capable of judging between right and wrong, of knowing whether an act were good or bad, ought to be made accountable for his actions. Such a man had not that within him which formed the foundation of accountability, either in a moral or legal point of view. It had been very forcibly stated, and it was no doubt perfectly true, that, alter the law or not, you would not get any jury who would convict, and hand over to punishment, individuals who, they were satisfied, were in such a state of mind as to be incapable of judging what was right and what was wrong. If that were so, it seemed to him to get rid of the only argument, if argument it could be called, for letting the law take its course on persons in that state of mind. It was said lunatics were capable of being deterred by the fear of punishment. That applied only to persons who were so far sane as to be capable of distinguishing between right and wrong, and there were many such, although they might have a natural infirmity of mind, or a morbid affection of the understanding. You must take a person who was so far deprived of his reason as to be incapable of distinguishing right from wrong; on such a person, he apprehended, the motive alluded to would have no influence, or it, could only operate on persons confined in a lunatic asylum, and subjected to its discipline which might constrain them to a certain degree of regularity in conduct; but he thought it could have no effect on persons not under restraint, and moving about in society. It had been said, that persons in a lunatic asylum knew they were safe from the law. Such instances might have occurred, but he believed they were very rare. From his experience, he believed it very rarely happened that a person deranged was at the time aware of his derangement. He knew, and he had been often told, that persons in a state of convalescence, recovering from their insanity, were aware that they had been deranged; but, while labouring under the insanity, they had no conception of its existence. It appeared very strange that any persons should be labouring under a delusion, and yet be aware that it was a delusion; in fact, if they were aware of their state, there could be no delusion. He begged their Lordships to beware how they thought of making the law subject such persons to punishment, unless they could find a mind diseased sensible of the disease under which it was labouring. He did not see how a more accurate definition of insanity could be given than that which was at present laid down by the law. All that the Legislature could do was to keep the law in a proper state; the judge would explain its dictates to the jury, and then the jury, in each particular case, must apply them according to the circumstances. He could not help thinking, that if juries had always acted up to the true spirit of the law, and had adhered to the definition which the law fixed, giving their verdicts, accordingly, those difficulties which were so much the subject of discussion would not have arisen. He apprehended, that to the conduct of juries much of the feeling existing on this subject was to be ascribed. But this was a misfortune liable to arise in the execution of all laws, and was not a matter of surprise. He entirely agreed that a consultation with the learned judges would be very desirable, not from any doubt he entertained as to what was the law or what were the opinions of authorities, but because he thought such a step would lead to uniformity of practice, and would be a lesson to judges to take the law from the highest possible authorities, that they might know what the law was and faithfully carry it into effect. His noble and learned Friend had not opened the other part of the subject. Anxious as he should be to take all steps which would be for the public protection, and add to the security of the members of the community, he confessed he should view with the greatest jealousy any measure to facilitate the confinement of individuals on the ground of insanity. This was a subject of very great difficulty, and he should be ready to consider any scheme that might be proposed, but he hoped his noble and learned Friend would bear in mind the latitude of definition which medical men were very apt to attribute to the notion of insanity. There was a well-known story of an eminent medical practitioner who, on surprise being expressed by the examining counsel at the latitude of his definition, answered him by saying, that, in truth, he did not think there were a great many persons who had a mind altogether sound. That was the danger which a very large proportion of medical men were apt to fall into. There was great danger in permitting the liberty of the subject to be infringed on the ground of insanity. After all, it was not to be expected that medical opinions would not have great weight with a court. The statute of George 3rd seemed to him to give powers sufficient for the restraint of dangerous lunatics; it did not occur to him how these powers could he extended with due regard to the preservation of the liberty of the subject. [The Lord Chancellor: They may be confined during her Majesty's pleasure.] That law authorised the restraint of persons labouring under derangement, and who there was reason to suppose meditated some unlawful act. They could not be restrained on the ground of derangement solely, for derangement might take a very innocent shape. The law, he apprehended, already gave sufficient power for the confinement and care of such persons. Whether it provided duly for their detention, or for their disposal while in confinement, might be matter for consideration, but in extending its powers they would be treading on very dangerous ground.

Lord Campbell

thought it his duty to express shortly the result of a very long experience on this subject, and a very long attention to it. In the first place, he should be very sorry, for the sake of the character of the administration of justice in this country, if any doubt were thrown on the verdict in a late trial at the Central Criminal Court, and he was sure it was not at all intended by his noble and learned Friend, who addressed their Lord ships second on this occasion, to throw any doubt upon it. There could be no doubt at all that M'Naughten was properly acquitted; but, at the same time, he must agree with his noble and learned Friend, that it would have been much more satisfactory if the trial had gone to its natural conclusion—if there had been a reply from the Solicitor-general, and a summing up from the learned judge. His noble and learned Friend on the Woolsack had said that the law was very accurately laid down by the learned judge. But what did that signify after he had stopped the trial, and the prisoner was substantially acquitted? The play was over: the judge asked the Solicitor-general if he could rebut the evidence that had been brought forward, because, if he could not, it would be vain to proceed further. The Solicitor-general said, he could not, and that he thought it his duty not to press the case further. He did not wish to throw the slightest reflection on that most distinguished judge, Chief Justice Tindal, who was an ornament to the bench, and a bright example of the highest qualities that could adorn it; but at the same time he did regret that that learned judge should have been so much impressed by the evidence given by the individual witnesses that he should have thought it right to take that course on the trial. The impression on the public mind was, that if a certain number of medical witnesses, generally called mad doctors, had come into court and said that in their opinion the prisoner was insane when he committed the act, the trial was to be stopped—cadit questio. He agreed with his noble and learned Friend who spoke second, that the questions as to the prisoner's sanity ought not to have been put to them—that was a question for the jury, and not for the witnesses. It would be most dangerous if it were to go abroad that the mere expression of a medical man's opinion must be taken as conclusive. He knew a very distinguished medical practitioner, Dr. Haslam, who went a great deal further than the other gentleman referred to by his noble and learned Friend who had spoken last. Dr. Haslam said, "not that there were many who were more or less insane, or that all of us had been insane at one period of our lives, bnt that we all were insane. [Lord Brougham: "I have heard him say it."] He had heard him say it repeatedly, and Dr. Haslam would have been ready to prove it. It would be a most dangerous latitude of construction, to allow any person to call himself insane, and plead impunity for a murder committed in open day. The trial to which his noble and learned Friend on the Woolsack referred was very different indeed from that of M'Naughten. It was proved on the former occasion that Hatfield had been in the army, had received a severe wound on his head, and been discharged from a military hospital for being insane. Within three days of committing the act for which he was tried, he believed himself to be the Supreme Being, and at other times uttered the most dreadful blasphemies. Within a few hours before, he made an attempt on the life of his own child, only eight months old, whom he most tenderly loved. Lord Kanyon, with the approbation of the whole country, stopped the trial, and the prisoner was from thenceforth an object of compassion, and not of punishment. He entirely concurred in the view taken by his noble and learned Friend who spoke last. He thought the law of England on this subject admitted of no alteration. As the law now stood, partial insanity did not give any immunity from punishment, and as this was a subject which excited much interest, he would beg permission to read to their Lordships a short, extract from the treaties of Hale on this subject: Partial insanity is no excuse; this is the condition of very many, especially melancholy persons, who, for the most part, discover their defect in excessive fears and griefs, and yet are not wholly destitute of the use of reason; and this partial insanity seems not to excuse them in the committing any offence, for it is matter capital. It is very difficult to determine the indivisible line that divides perfect and partial insanity; but it must rest upon circumstances duly to be weighed and considered both by judge and jury, lest on the one side there be a kind of inhumanity towards the defects of human nature, or, on the other side, too great an indulgence given to great crimes. As partial insanity did not excuse from punishment, it was necessary to prove that the person was labouring under a delusion at the time, which led to the commission of the act, and that he was not conscious of the distinction between right and wrong, as to observing the law or violating it. He agreed with what Lord Coke had said, that to execute a madman was a miserable spectacle, contrary to humanity and justice, and, above all, offering no example to others; it would excite the horror of mankind, and would only serve to introduce confusion of right and wrong, and bring the administration of justice into open disgrace. But then he (Lord Campbell) did heartily desire that the law might be laid down in a more authoritative manner, and for that reason he perfectly agreed with the expediency of the suggestion made by his noble and learned Friend of calling the judges together. The public mind was in considerable alarm on this subject. The public had been inundated by medical books calculated very much to mislead juries in the case of future trials of a similar kind. Those books spoke of what they were pleased to call a homicidal propensity, and contended that no man, under the influence of such a homicidal propensity, should be held liable for his acts. Dr. Alison, speaking on the subject, said:— Few men are mad about others, or about things in general, but many are mad about themselves; though a man understand the difference between right and wrong in the case of others, he may be under a delusion with respect to his own case, and thus be in a state of mental alienation, which makes him not responsible for his own acts. And, again, the same writer said:— For example, a mad person may be aware that murder is a crime, but may believe that a particular homicide is in no way blameable, because he may believe that certain persons have entered into conspiracies against him, or that some one person may be his mortal enemy. Now, if this view of the case were at all correct, there was no doubt that a man, acting under the influence of unfounded jealousy, might murder the object of his suspicion, and afterwards be acquitted on the ground of insanity. For these reasons he wished that the law might be laid down in an authoritative manner by the judges. He had looked into all the cases that had occurred since Arnold's case, and looking to the directions of the judges in the cases of Arnold, of Lord Ferrers, of Bellingham, of Oxford, of Francis, and of M'Naghten, he must be allowed to say, that there was a wide difference both in meaning and in words in their description of the law. He would repeat, therefore, that an authoritative statement of the law would be highly desirable, and, if necessary, a declaratory act should be passed. There was the case of Wood, mentioned by Lord Erskine. The man was supposed to be insane, and under that belief was confined in a lunatic asylum in London. He indicted those who had taken him into custody, and at the trial he was cross-examined for more than an hour with a view of showing his insanity, but so cautious was he that he completely baffled the counsel who conducted the cross-examination. At last the right spring was touched, and the insanity of the prosecutor clearly disclosed. This was at Westminster; and the prosecutor then laid an indictment at London. He was now on his guard, and no cross-examination was able to betray him into a manifestation of insanity. The only mode of proving the man insane was to call the short-hand writer, who read his notes on the former trial, from which it appeared that the prosecutor had said he was the redeemer of mankind, or some other phrase which implied a delusion of an equally striking kind under which the man was labouring. There was only one more subject to which he was desirous of referring, namely, the manner in which these unhappy people were treated who were acquitted on the plea of insanity. The present plan was most mischievous. The person so acquitted was confined in Bedlam, where he became a public character; and not only an object of curiosity, but even of courtesy and respect. He believed, that these cases had multiplied of late from a desire to obtain the comfort, the notoriety, and the indulgences which were supposed to be enjoyed by individuals acquitted on such grounds. A man acquitted on the score of insanity ought to be removed from the public eye, and heard of as little as possible afterwards. With these remarks, he would leave the subject entirely in the hands of his noble and learned Friend, with whose views he entirely concurred.

The Lord Chancellor

said, there would be no necessity of legislating as to the disposal of persons acquitted on the ground of insanity, as the law already gave her Majesty the power of confining them in such a manner as she might consider most advisable for the safety of the public. The subject had attracted the attention of her Majesty's Government, and they were of opinion that an individual so circumstanced ought not to be made a public spectacle of in his confinement. As it was their Lordships' wish that the judges should be summoned to give their opinion, he would take great care that they should be called.—Their Lordships adjourned.