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contempt, and stirs op men without the advant-commonwealth of greatness has the bald religion ages of learning or sober thinking to a total dis- of nature ever established? We see, on the con. belief of every thing hitherto held sacred, and, trary, the nations that have no other light than consequently, to a rejection of all the laws and that of nature to direct them, sunk in barbarismo ordinances of the state, which stand only upon or slaves to arbitrary governments; while, since the assumption of their truth.
the Christian era, the great career of the world Gentlemen, I can not conclude without ex- has been slowly, bat clearly, advancing lighter
pressing the deepest regret at all at- at every step, from the awful prophecies of the The frænds or tacks upon the Christian religion by Gospel, and leading, I trust, in the end, to uni.
authors who prosess to promote the versal and eternal happiness. Each generation civil liberties of the world. For un- of mankind can see but a few revolving links of
der what other auspices than Chris- this mighty and mysterious chain; but, by doing tianity have the lost and subverted liberties of our several duties in our allotted stations, we are mankind in former ages been reasserted? By sure that we are fulfilling the purposes of our what zeal, bat the warm zeal of devout Chris- existence. You, I trust, will fulfill yours this tians, have English liberties been redeemed and day! consecrated ? Under what other sanctions, even in our own days, have liberty and happiness been extending and spreading to the uttermost corners The jury found a verdict of Guilty, without of the earth? What work of civilization, what retiring from their seats.
should be the last persons to attack Chris. tiauty.
SPEECH OF MR. ERSKINE IN BEHALF OF JAMES HADFIELD, WHEN INDICTED FOR HIGH TREASON, DELIV
ERED BEFORE THE COURT OF KING'S BENCH, JUNE 26, 1800.
INTRODUCTION. JAMES HADFIELD was an invalid soldier of the British army, and was indicted for firing a pistol at the King in the Drury Lane Theater. He was defended on the ground that he acted under a strong delusion, producing a settled insanity on one subject, while he appeared entirely rational upon every other. Lord Campbell says this “was Erskine's last, and perhaps his greatest display of genius in defending a party prosecuted by the Crown. It is now, and ever will be, studied by medical men for its philosophic views of mental disease--by lawyers for its admirable distinctions as to the degree of alienation of mind which will exempt from final responsibility-by logicians for its severe and connected reasoning; and by all lovers of genuine eloquence for its touching appeals to human feeling."--Lives of the Chancellors, sal. vi., page 520.
SPEECH, &c. GENTLEMEN of the Jury,—The scene which subjects, YET NOT A HAIR OF THE HEAD OF THE we are engaged in, and the duty which I am not SUPPOSED ASSASSIN WAS TOUCHED. In this unmerely privileged, but appointed by the authority paralleled scene of calm forbearance, the King of the court to perform, exhibits to the whole civ- himself, though he stood first in personal interest ilized world a perpetual monument of our national and feeling, as well as in command, was a sin. justice.
gular and fortunate example. The least appear. The transaction, indeed, in every part of it, as ance of emotion on the part of that august per. The peculiariey it stands recorded in the evidence al- sonage must unavoidably have produced a scene if the proceed to ready before us, places our country, quite different, and far less honorable than the this an honor to and its government, and its inhabit- court is now witnessing. But his Majesty reEnglish justice.
ants, upon the highest pinnacle of hu- mained unmoved, and the person apparently of man elevation. It appears that, upon the 15th sending was only secured, without injury or reday of May last, his Majesty, after a reign of proach, for the business of this day. forty years, not merely in sovereign power, but Gentlemen, I agree with the Attorney Gener. spontaneously in the very hearts of his people, al (indeed, there can be no possible Greater protec was openly shot at (or to all appearance shot at) doubt) that if the same pistol had been to find in a public theater (Drury Lane), in the center maliciously fired by the prisoner, in Kingtione in of his capital, and amid the loyal plaudits of his the same theater, at the meanest man divideu!
within its walls, he would have been brought to 1 This is, perhaps, the most felicitous of Mr. Er immediate trial, and, if guilty, to immediate exeskine's exordiums. It turns upon a fact highly grat. cution. He would have heard the charge against ifying to the minds of an English jury, and leading him for the first time when the indictment was directly to the great thought which needed to be urged at the outset, viz., that no regard for the read upon his arraignment. He would have been King's safety should lead to any hasty or preju. diced jadgments. The same thought is admirably * Sir John Mitford, afterward Lord Redesdale, and introduced in a different connection at the close. Lord Chancellor of Ireland
Arilant of the The obligaticos
view, to see the reason of uis difference.
e stranger to the names, and even to the exist- | the judges, are the children. It is fit, on that ence, of those who were to sit in judyment upon account, that there should be a solemn pause be. him, and of those who were to be the witnesses fore we rush to judgment; and what can be a against him. But upon the charge of even this more sublime spectacle of justice than to see a inurierous attack upon the King himsell, he is statutable disqualification of a whole nation for a covered all over with the armor of the law. He limited period, a fifteen days' quarantine before has been provided with counsel by the King's trial, lest the mind should be subject to the conown judges, and not of their choice, but of his tagion of partial affections ! swon He has had a copy of the indictment ten From a prisoner so protected by the benevo. days before his trial. He has had the names, lence of our institutions, the utmost descriptions, and abodes of all the jurors returned good faith would, on his part, be due imposed by this to the court; and the highest privilege of per- to the public if he had consciousness the counsel fo. emptory challenges derived from, and safely di- and reason to reflect upon the obligarected by that indulgence. He has bad the tion. The duty, therefore, devolves on me; and, same description of every witness who could be upon my honor, it shall be fulfilled. I will emreceived to accuse him; and there must at this ploy no artifices of speech. I claim only the hour be twice the testimony against him which strictest protection of the law for the unhappy would be legally competent to establish his guilt man before you. I should, indeed, be ashamed on a similar prosecution by [in behalf of the if I were to say any thing of the rule in the ab. meanest and most helpless of mankind.
stract by wbich he is to be judged, which I did Gentlemen, when this melancholy catastrophe not honestly feel ; I a... sorry, therefore, that the Difficult,at first happened, and the prisoner was ar- subject is so difficult to handle with brevity and
raigned for trial, I remember to have precision. Indeed, if it could be brought to a
said to some now present, that it was, clear and simple criterion, which could admit of at first view, difficult to bring those indulgent ex- a dry admission or contradiction, there might be ceptions to the general rules of trial within the very little difference, perhaps none at all, between principle which dictated them to our humane an- the Attorney General and myself, upon the princestors in cases of treasons against the political ciples which ought to govern your verdict. But government, or of rebellious conspiracy against this is not possible, and I am, therefore, under the the person of the King. In these cases, the pas- necessity of submitting to you, and to the judges, sions and interests of great bodies of powerful for their direction (and at greater length than I men being engaged and agitated, a counterpoise wish), how I understand this difficult and mobecame necessary to give composure and impar- mentous subject. tiality to criminal tribunals; but a mere murder- The law, as it regards this most unfortunato ous attack upon the King's person, not at all con- infirmity of the human mind, like the the law on this nected with his political character, seemed a case law in all its branches, aims at the ut- subject neces to be ranged and dealt with like a similar attack most degree of precision ; but there in its applicaupon any private man.
are some subjects, as I have just obBut the wisdom of the law is greater than any served to you, and the present is one of them,
man’s wisdom ; how much more, there- upon which it is extremely difficult to be precise.
fore, than mine! An attack upon the The general principle is clear, but the applicaKing is considered to be parricide against the tion is most difficult. state, and the jury and the witnesses, and even It is agreed by all jurists, and is established by
the law of this and every other coun- The exercise of : By 7 Will. III., cap. 3, sec. 1, a person charged try, that it is the reason OP Man which are the top sellise with high treason is allowed to make his defense by makes him accountable for his actions; ence of crime. counsel, not exceeding two in number, to be selected and that the deprivation of reason acquits him of by himself and assigned to him by the court; and by crime. This principle is indisputable; yet so sec. 2 of the same statute, no person shall be con. fearfully and wonderfully are we made, so infinvicted of high treason but upon the oaths of two law. itely subtle is the spiritual part of our being, so lal witnesses, unless he shall willingly, and without difficult is it to trace with accuracy the effect of violence, confess the same.
diseased intellect upon human action, that I may • The statute 7 Anne, cap. 21, directs that all per. sons indicted for high treason shall have a copy of appeal to all who hear me, whether there are the indictment, together with a list of the witnesses any causes more difficult, or which, indeed, so to be produced against them on the trial, and of the often confound the learning of the judges themjurors impanneled, with their professions and places selves, as when insanity, or the effects and conof abode respectively, delivered to them ten days be sequences of insanity, become the subjects of lefore trial, and in the presence of two or more witgal consideration and judgment. I shall pursue Gesses. But now, by 39 and 40 Geo. III., cap. 93, the subject as the Attorney General has properly and 5 and 6 Vict., cap. 51, the proceedings in trials discussed it. I shall consider insanity, as it anfor high treason in compassing the death or bodily nuls a man's dominion over property, as it disbarm of the Queen are assimilated to those in trials solves his contracts, and other acts, which other. for murder.
'On a trial for high treason, the prisoner is allowed wise would be binding, and as it takes away his a peremptory challenge of thirty-five jurors ; that is, responsibility for crimes. If I could draw tho one under the number of three full juries. This is the line in a moment between these two views of tho effect of 1 and 2 Philip and Mary, cap. 10, sec. 7. subject, I am sure the judges will do mo the jue
That reason assigned.
It is not mere
mind, but dep rivation of
This shown in
tice to believe that I would fairly and candidly Nothing, gentlemen, can be more accurately do so; but great difficulties press upon my mind, nor more humanely expressed; but Market distanc which oblige me to take a different course. the application of the rule is often the between I agree with the Attorney General, that the most difficult. I am bound, besides, inal cases.
law, in neither civil nor criminal cases, to admit that there is a wide distinction between weakness of will measure the degrees of men's un- civil and criminal cases. If, in the former, a man
derstandings. A weak man, however appears, upon the evidence, to be non compos mensoperates us an much below the ordinary standard of tis, the law avoids his act, though it can not be
human intellect, is not only responsi- traced or connected with the morbid imagination ble for crimes, but is bound by his contracts, and which constitutes his disease, and which may be may exercise dominion over his property. Sir extremely partial in its influence upon conduct, Joseph Jekyll, in the Duchess of Cleveland's but to deliver a man from responsibility for crimes, case, took the clear, legal distinction, when he above all, for crimes of great atrocity and wicksaid, “ The law will not measure the sizes of edness, I am by no means prepared to apply this men's capacities, so as they be compos mentis.” rule, however well established when property Lord Coke, in speaking of the expression non only is concerned.
compos mentis, says, Many times (as In the very recent instance of Mr. Greenwood
here) the Latin word expresses the true (which must be fresh in his Lordship's sense, and calleth him not amens, demens, furi- recollection), the rule in civil cases the cave of osus, lunaticus, fatuus, stultus, or the like, for non was considered to be settled. That compos mentis is the most sure and legal." He gentleman, while insane, took up an idea that a then says, “ Non compos mentis is of four sorts : most affectionate brother had administered poison first, ideota (an idiot), which from his nativity, by to him. Indeed, it was the prominent feature of a perpetual infirmity, is non compos mentis ; sec. his insanity. In a few months he recovered his ondly, he that by sickness, grief, or other acci- senses. He returned to his profession as an advodent, wholly loses his memory and understand. cate ; was sound and eminent in his practice, and ing; thirdly, a lunatic that hath sometimes his in all respects a most intelligent and useful memunderstanding, and sometimes not; aliquando ber of society; but he could never dislodge from gaudet lucidis intervallis [has sometimes lucid in his mind the morbid delusion which disturbed it; tervals]; and, therefore, he is called non compos and under the pressure, no doubt, of that diseased mentis so long as he hath not understanding." prepossession, he disinherited his brother. The
But notwithstanding the precision with which cause to avoid this will was tried here. We are this great author points out the different kinds of not now upon the evidence, but upon the princithis unhappy malady, the nature of his work, in ple adopted as the law. The noble and learned this part of it, did not open to any illustration judge, who presides upon this trial, and who pre. which it can now be useful to consider. In his sided upon that, told the jury, that is they be. fourth Institute he is more particular ; but the lieved Mr. Greenwood, when he made the will, admirable work of Lord Chief Justice Hale, in to have been insane, the will could not be supwhich he refers to Lord Coke's pleas of the portod, whether it bad disinherited his brother or Crown, renders all other authorities unnecessary. not; that the act, no doubt, strongly confirmed
Lord Hale says, “ There is a partial insani- the existence of the salse idea which, if believed word Hoje, ty of mind, and a total insanity. The by the jury to amount to madness, would equaily
former is either in respect to things, have affected his testament, if the brother, instead quoad hoc vel illud insanire [to be insane as to of being disinherited, had been in his grave; and ihis or that]. Some persons that have a compe- that, on the other hand, if the unfounded notion tent use of reason in respect of some subjects, did not amount to madness, its influence could are yet under a particular dementia (deprivation not vacate the devise. This principle of law of reason) in respect of some particular discours- appears to be sound and reasonable, as it applies es, subjects, or applications; or else it is partial to civil cases, frora the extreme difficulty of trac. in respect of degrees ; and this is the condition ing with precision the secret motions of a mind, of very many, especially melancholy persons, deprived by disease of its soundness and strength. who for the most part discover their defect in ex- Whenever, therefore, a person may be consid. cessive fears and griefs, and yet are not wholly ered non compos mentis, all his civil acts are void, destitute of the use of reason; and this partial whether they can be referred or not, to the morinsanity seems not to excuse them in the com- bid impulse of his malady, or even though, to mitting of any offense for its matter capital. For, all visible appearances, totally separated from it. doubtless, most persons that are felons of them- But I agree with Mr. Justice Tracey, that it is selves and others, are under a degree of partial not every man of an idle, frantic appearance and insanity when they commit these offenses. It behavior, who is to be considered as a lunatic, is very difficult to define the invisible line that either as it regards obligations or crimes; but divides persect and partial insanity ; but it must that he must appear to the jury to be non compos rest upon circumstances duly to be weighed and mentis, in the legal acceptation of the term ; and considered both by judge and jury, lest on the one that, not at any anterior period, which can havo side there be a kind of inhumanity toward the • The jury in that case found for the will; but delects of human nature ; or, on the other side, after a contrary verdict in the Common Pleas, a the great an indulgence given to great crimes.” | compromise took place.
Not mere idiocy.
no bearing upon any caso whatsoever, but at the of their UNDERSTANDINGS, in the Attorney Gen. moment when the contract was entered into, or eral's seeming sense of that expression. But the crime committed.
these cases are not only extremely rare, but The Attorney General, standing undoubtedly never can become the subjects of judicial diffi Nature of the upon the most revered authorities of culty. There can be but one judgment coninsanity which the law, has laid it down that to pro- cerning them. In other cases, reason is not operates as an tect a man from criminal responsibili- driven from her seat, but distraction sits down
ty, there must be a total deprivation upon it along with her, holds her, trembling, of memory and understanding. I admit that this upon it, and frightens her from her propriety." is the very expression used, both by Lord Coke Such patients are victims to delusions of the and by Lord Hale; but the true interpretation most alarming description, which so overpower of it deserves the utmost atention and consider the faculties, and usurp so firmly the place of ation of the court. If a total deprivation of realities, as not to be dislodged and shaken by the memory was intended by these great lawyers to organs of perception and sense : in such cases be taken in the literal sense of the words; if it the images frequently vary, but in the same subwas meant, that, to protect a man from punish- ject are generally of the same terrific character inent, he must be in such a state of prostrated Here, too, no judicial difficulties can present intellect as not to know his name, nor his con- themselves; for who could balance upon the dition, nor his relation toward others—that if a judgment to be pronounced in cases of such exhusband, he should not know he was married; treme disease ? Another class, branching out or; if a father, could not remember that he had into almost infinite subdivisions, under which, children, nor know the road to his house, nor indeed, the former, and every case of insanity, his property in it—then no such madness ever may be classed, is, where the delusions are not
existed in the world. It is idiocy alone of that frightful character, but infinitely various
which places a man in this helpless con- and often extremely circumscribed ; yet where dition; where, from an original mal-organiza- imagination (within the bounds of the maladyi tion, there is the human frame alone without the still holds the most uncontrollable dominion over human capacity; and which, indeed, meets the reality and fact. These are the cases which very definition of Lord Hale himself, when, re- frequently mock the wisdom of the wisest in juferring to Fitzherbert, he says, “Idiocy, or fa- dicial trials; because such persons often reason Luity à nativitate, vel dementia naturalis, is such with a subtlety which puts in the shade the ora one as described by Fitzherbert, who knows dinary conceptions of mankind. Their conclunot to tell twenty shillings, nor knows his own sions are just
, and frequently profound; but the ago, or who was his father.” But in all the premises from which they reason, when within cases which have filled Westminster Hall with the range of the malady, are uniformly false the most complicated considerations—the luna- not false from any defect of knowledge or judg. tics, and other insane persons who have been the ment, but because a delusive image, the insepasubjects of them, have not only had memory, in rable companion of real insanity, is thrust upon my sense of the expression—they have not only the subjugated understanding, incapable of rehad the most perfect knowledge and recollec- sistance, because unconscious of attack. tions of all the relations they stood in toward Delusion, therefore, where there is no frenzy others, and of the acts and circumstances of or raving madness, is the true char. This delusion their lives, but have, in general, been remarka- acter of insanity. Where it can not al cases, be ble for subtlety and acuteness. Defects in their be predicated of a man standing for me to the rounded But a permanent reasonings have seldom been trace life or death for a crime, he ought ful act.
able—the disease consisting in the not, in my opinion, to be acquitted; and is courts delusive sources of thought; all of law were to be governed by any other princi
their deductions within the scope of ple, every departure from sober, rational conduct the malady being founded upon the immovable would be an emancipation from criminal justice. assumption of matters as realities, either without I shall place my claim to your verdict upon no any foundation whatsoever, or so distorted and such dangerous foundation. I must convince disfigured by fancy as to be almost nearly the you, not only that the unhappy prisoner was a same thing as their creation. It is true, indeed, lunatic, within my own definition of lunacy, but that in sonie, perhaps in many cases, the human that the act in question was the immediate, unmind is stormed in its citadel, and laid prostrate qualified offspring of the disease. In civil cases, under the stroke of frenzy; these unhappy suf- as I have already said, the law avoids every act ferers, however, are not so much considered, by of the lunatic during the period of the lunacy, physicians, as maniacs, but to be in a state of although the delusion may be extremely circum. delirium as if from fever. There, indeed, all the scribed ; although the mind may be quite sound ideas are overwhelmed—for reason is not mere- in all that is not within the shades of the very ly disturbed, but driven wholly from her seat. partial eclipse; and although the act to be avoidSuch unhappy patients are unconscious, thereforo, except at short intervals
, even of external 10
, act ii., sc. 3. The reader can not fail to remark
* And frights the isle from her propriety.-Othel. objects; or, at least, are wholly incapable of con. the strength and beauty of the images used here, sidering their relations. Such persons, and such and in other passages above and below to describe persons alone (excet idiots). aur wholly deprivell the different kinds of madness.
delusion of some ort making Jiings Appear real which are aot so.
ed can in no way be connected with the influ-, that every person who listened to his conversa ence of the insanity--but to deliver a lunatic tion, and observed his deportment upon his apfrom responsibility to criminal justice, above all prehension, must have given precisely the evi. in a case of such atrocity as the present, the re- dence delivered by his Royal Highness the Duke lation between the disease and the act should be of York, and that nothing like insanity appeared apparent. Where the connection is doubtsul, to those who examined him. But what tben? the judgment should certainly be most indulgent, I conceive, gentlemen, that I am more in tho from the great difficulty of diving into the secret habit of examination than either that illustrious sources of a disordered mind; but still, I think person or the witnesses from whom you have that, as a doctrine of law, the delusion and the heard this account. Yet I well react should be connected.
member (indeed, I never can forget it), You perceive, therefore, gentlemen, that the that since the noble and learned Judge has pre
prisoner, in naming me for his coun-sided in this court, I examined, for the greater very strictly on sel, has not obtained the assistance part of a day, in this very place, an unfortunate
of a person who is disposed to carry gentleman, who had indicted a most affectionate the doctrine of insanity in his defense so far as brother, together with the keeper of a mad-house even books would warrant me in carrying it. at Hoxton (Dr. Sims), for having imprisoned him Some of the cases--that of Lord Ferrers, for in- as a lunatic, while, according to his evidence, stance—which I shall consider hereafter, as dis. he was in his perfect senses. I was, unfortunatetinguished from the present—would not, in my ly, not instructed in what his lunacy consisted, unind, bear the shadow of an argument, as a de- although my instructions lest me no doubt of the sense against an indictment for murder. I can
can fact; but, not having the clue, he completely not allow the protection of insanity to a man foiled me in every attempt to expose his infirm. who only exhibits violent passions and malig- ity. You may believe that I left no means uniant resentments, acting upon real circumstances; employed which long experience dictated, but who is impelled to evil by no morbid delusions; without the smallest effect. The day was wastbut who proceeds upon the ordinary perceptions ed, and the prosecutor, by the most affecting hisof the mind. I can not consider such a man as tory of unmerited suffering, appeared to the judge falling within the protection which the law gives, and jury, and to a humane English audience, as and is bound to give, to those whom it has pleased the victim of the most wanton and barbarous opGod, for mysterious causes, to visit with this most pression. At last Dr. Sims came into court, who afflicting calamity.
had been prevented, by business, from an earlier He alone can be so emancipated, whose dis- attendance, and whose name, by-the-by, I ob. Principle ease (call it what you will) consists, not serve to-day in the list of the witnesses for the
merely in seeing with a prejudiced eye, Crown. From Dr. Sims I soon learned that the or with odd and absurd particularities, differing, very man whom I had been above an hour es. in many respects, from the contemplations of amining, and with every possible effort whicha sober sense, upon the actual existence of things; counsel are so much in the habit of exerting, be. but he only, whose reasoning and corresponding lieved himself to be the Lord and Savior of manconduct, though governed by the ordinary dic- kind; not merely at the time of his confinement, tates of reason, proceed upon something whick which was alone necessary for my defense, but has no foundation or existence.
during the whole time that he had been triumphGentlemen, it has pleased God so to visit the ing over every attempt to surprise him in the
unhappy man before you ; to shake his concealment of his disease! I then affected to insanity of the reason in its citadel; to cause him to lament the indecency of my ignorant examina
build up as realities the most impossi- tion, when he expressed his forgiveness, and Wle phantoms of the mind, and to be impelled by said, with the utmost gravity and emphasis in them as motives irresistible : the whole fabric the face of the whole court, "I AM THE Christ;" being nothing but the unhappy vision of his dis- and so the cause ended. Gentlemen, this is not case-existing nowhere else—having no founda- the only instance of the power of concealing this tion whatsoever in the very nature of things. malady. I could consume the day if I were to
Gentlemen, it has been stated by the Attorney enumerate them; but there is one so extremely He had the full General, and established by evidence remarkable, that I can not help stating it. possession of which I am in no condition to con- Being engaged to attend the assizes at Ches.
tradict, nor have, indeed, any interest ter upon a question of lunacy, and have another simi in contradicting, that, when the prisoner bought ing been told that there had been a the pistol which he discharged at or toward his memorable case tried before Lord Mansfield is. Majesty, he was well acquainted with the nature this place, I was anxious to procure a report of and use of it; that, as a soldier, he could not but it. From that great man himsell (who, within know, that in his hands it was a sure instrument these walls, will ever be reverenced, being then of death; that, when he bought the gunpowder, retired, in his extreme old age, to his seat near he knew it would prepare the pistol for its use; London, in my own neighborhood) I obtained the that, when he went to the playhouse, he knew following account of it: "A man of the name he was going there, and knew every thing con- of Wood," said Lord Mansfield, “had indicted nected with the scene, as perfectly as any other Dr. Monro for keeping him as a prisoner (I beperscu. I freely admit all this : I admit, also, Ilieve in the same mad-house at Hoxton) wher
Such was the
his mind on other subjects.