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

Question I. – "What is the law respecting alleged crimes committed by persons afflicted with insane delusion, in respect of one or more particular subjects, or persons: – as for instance, where, at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of, with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit?"

Answer. – "Assuming that your lordships' inquiries are confined to those persons who labour under such partial delusions only, and are not in other respects insane, we are of opinion, that, notwithstanding the party did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable according to the nature of the crime committed, if he knew, at the time of committing such crime, that he was acting contrary to law; by which expression we understand your Lordship to mean the law of the land."

Questions II. and III. (1.) – "What are the proper questions to be submitted to the jury, when a person alleged to be afflicted with insane delusion, respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example) and insanity is set up as a defence?"

(2.) "In what terms ought the question to be left to the jury, as to the prisoner's state of mind at the time when the act was committed?"

Answers. – "The jury ought to be told, in all cases, that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that, to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. The mode of putting the latter part of the question to the jury, on these occasions, has generally been whether the accused, at the time of doing the act, knew the difference between right and wrong – which mode, though rarely if ever leading to any mistake with the jury, is not, as we conceive, so accurate when put generally and in the abstract, as when put to the party's knowledge of right and wrong with respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused, solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction, whereas the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course, therefore, has been to leave the question to the jury – whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong; and this course, we think, is correct, accompanied with such observations and explanations as the circumstances of each particular case may require."

Question IV. – "If a person, under an insane delusion as to the existing facts, commits an offence in consequence thereof, is he thereby excused?"

Answer. – "The answer must of course depend on the nature of the delusion; but making the same assumption as we did before – that he labours under such partial delusion only, and is not in other respects insane – we think he must be considered in the same situation, as to responsibility, as if the facts with respect to which the delusion exists were real. For example – if, under the influence of his delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion were that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment."

Question V. – "Can a medical man, conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial and the examination of all the witnesses, he asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious, at the time of doing the act, that he was acting contrary to law, or whether he was labouring under any and what delusion at the time?"

Answer. – "We think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated; because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide; and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted, or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right."

Such being the authoritative enunciation of the law by its legitimate exponents, which superseded the necessity of legislative interference, it is right to observe that it has by no means satisfied the professors of medical jurisprudence, and the members of the medical profession. One of them, Mr Taylor, has observed,9 that the law here appears to "look for a consciousness of right and wrong, and a knowledge of the consequences of the act." This legal test "is insufficient for the purpose intended: it cannot, in a large majority of cases, enable us to distinguish the insane homicide from the sane criminal… A full consciousness of the illegality or wrongfulness of the act may exist in a man's mind, and yet he may be fairly acquitted on the ground of insanity… There are no certain legal or medical rules whereby homicidal mania may be detected. Each case must be determined by the circumstances attending it; but the true test for irresponsibility in these ambiguous cases appears to be, whether the individual, at the time of committing the act, had, or had not, a sufficient power of control to govern his actions. If, from circumstances, it can be inferred that he had this power, he should be made responsible, and rendered liable to punishment. If, however, he was led to the perpetration of the act by an uncontrollable impulse, whether accompanied by deliberation or not, then he is entitled to an acquittal as an irresponsible agent."10 This doctrine is utterly repudiated, however, by our judges, as will appear from two very decisive instances. In directing the jury, in Pate's case, in July last, Mr Baron Alderson thus somewhat sarcastically disposed of the dangerous plea of "uncontrollable impulse." – "The law does not recognise such an impulse. If a person was aware that it was a wrong act he was about to commit, he was answerable for the consequences. A man might say that he picked a pocket from some incontrollable impulse; and in that case the law would have an incontrollable impulse to punish him for it!" Another acute and eminent judge, Baron Rolfe, on a recent occasion, in trying a boy aged twelve years, for deliberately and cunningly poisoning his aged grandfather, thus gravely dispelled this favourite delusion of the medical jurists. – "The witnesses called for the defence had described the prisoner as acting from 'uncontrollable impulse.' In my opinion, such evidence ought to be scanned by juries with very great jealousy and suspicion, because it may tend to the perfect justification of every crime that may be committed. What is the meaning of not being able to resist moral influence? Every crime is committed under an influence of such a description, and the object of the law is to compel persons to control these influences. If it be made an excuse for a person who has committed a crime, that he has been goaded to it by some impulse, which medical men may choose to say he could not control, I must observe, that such a doctrine is fraught with very great danger to society." This stern and sound good sense prevailed; and the youthful murderer was convicted. We have been thus full and distinct in explaining the wholesome doctrine of our English law, because of its immense importance; and we desire it to be understood, far and wide, especially by the medical profession, that these fashionable but dangerous modern paradoxes, borrowed from Continental physicians, concerning the co-existence of moral insanity with intellectual sanity, will not be tolerated in English courts of justice.

Let us now proceed to deal with the two remarkable cases of Oxford and M'Naughten – the former of whom was placed at the bar of the Old Bailey four days after the execution of Courvoisier.

It is unspeakably painful, and humiliating, and disgusting, to reflect that our Queen, who has always shown a disposition to intrust herself unreservedly among her subjects, should have been subjected to no fewer than five public outrages – the last of which inflicted actual injury on the royal person, – that of a lady, a young queen, ascending the throne of this mighty empire at the age of eighteen! – outrages in every instance perpetrated by despicable beings of the male sex, properly characterised by Mr Townsend as "crazed knaves, or imbecile monomaniacs." First came, on the 10th June 1840, Edward Oxford, aged nineteen; then, on the 30th May 1842, John Francis, aged twenty; then, on the 3d July 1842, John William Bean, a deformed stripling aged seventeen; then, on the 19th May 1849, William Hamilton; finally – God grant that the degraded series may never be increased! – on the 27th June 1850, Robert Pate – alas! a gentleman of birth and fortune, and who had recently borne her Majesty's commission!

We shall place our readers, briefly and distinctly, in possession of the state of the law applicable to wilfully injuring, or attempting to injure the royal person. Its progress is painfully interesting. The attempt to inflict, and the actual infliction of such injury, are of course high treason; both the trial and punishment being attended, till recently, with all the solemn formalities of high treason as explained in our last Number. This heinous offence comes under the first head of the statute of treason, (25 Edward III. c. 2,) viz., "When a man doth compass or imagine11 the death of our Lord and King." By "compass and imagine" is signified the purpose or design of the mind or will, evidenced by an open or overt act. On the 15th May 1800, James Hadfield fired a horse-pistol, loaded with two slugs, at King George III., as he was entering his box at Drury Lane Theatre.12 He was tried for high treason in the Court of Queen's Bench, and defended by Mr Erskine with splendid eloquence.13 He was acquitted on the ground of insanity, committed at once to Bedlam, and died there in January 1841, after forty years' incarceration. In the course of his defence, Mr Erskine made an observation which led to an immediate interposition of the legislature. In speaking of the state of the law which interposed protective delay in cases of high treason, Mr Erskine observed: "Where the intent charged affected the political character of the sovereign, the delay, and all the other safeguards provided, were just and necessary; but a mere murderous attack on the King's person, not at all connected with his political character, seemed a case to be ranged and dealt with like a similar attack upon any private man."14 On the 28th July in the same year, were passed statutes 39 and 40 Geo. III. c. 93, carrying out Mr Erskine's judicious suggestion, by enacting that, where the overt act of this head of treason should be the assassination of the King, or any direct attempt against his life or person, whereby his life might be endangered or his person suffer bodily harm, the trial should be conducted in every respect like a simple trial for murder; but, on conviction, the sentence should be pronounced and carried into effect as in other cases of high treason. On the same day was passed another statute – also occasioned by the trial of Hadfield – that in all cases of trial for treason, murder, or felony, if evidence be given of the prisoner's insanity at the time of the commission of the offence, and he be acquitted, the jury shall be required to find specially whether he was insane at the time of committing the offence, and to declare whether they acquit on account of such insanity; and if they do, the court shall order the prisoner to be confined in strict and safe custody during his Majesty's pleasure. Under the former of these two wholesome statutes were tried Oxford and Francis, the latter being convicted of having fired a pistol against the Queen, loaded with powder and "certain other destructive materials and substances unknown;" on which sentence of death was pronounced by Chief-Justice Tindal, as in other cases of high treason. He sobbed piteously15 on being convicted; but after two consultations of the Cabinet had been held on his case, his life was spared, in contemptuous clemency to the worthless offender, and in deference to the humane feelings of her Majesty, and he was transported for life. Within almost one month after this questionable act of mercy, her Majesty was subjected to a similar outrage – a pistol being presented towards her, by Bean, on Sunday, as she was going to the Chapel Royal. The pistol was cocked, and the click of the hammer against the pan was heard, but there was no explosion; and the pistol was loaded with only powder, wadding, and one or two minute fragments (about the size of ordinary shot) of pipe. He was tried for misdemeanour, and sentenced to eighteen months' imprisonment in the penitentiary; Lord Abinger remarking, at the conclusion of the trial, that "whipping at the cart's tail should be the petty sentence in future." The public disgust and indignation demanded some more effectual remedy to be provided for such disgraceful cases, should any unhappily occur in future; and within a fortnight of Bean's conviction – viz. on the 16th July 1842 – was passed statute 5 & 6 Vict. c. 51, entitled "An act for providing for the further security and protection of her Majesty's person;" and recites the expediency of extending the provisions of statute 39 & 40 Geo. III. c. 93, to "any attempt to injure in any manner whatsoever the person of the Queen," and of "making further provision by law for the protection and security of the person of the sovereign of these realms." It then proceeds to enact, that —

"If any one shall wilfully discharge or attempt to discharge, or point, aim, or present, at or near to the person of the Queen, any gun, pistol, or other description of firearms, or of other arms whatever – whether the same shall or shall not contain any explosive or destructive material; or discharge, or attempt to discharge, any explosive substance or material near to the Queen's person; or wilfully strike, or attempt to strike, or strike at the Queen's person with any offensive weapon, or in any other manner whatsoever; or wilfully throw or attempt to throw any substance, matter, or thing whatsoever at or upon the Queen's person, with intent to break the public peace, or whereby the public peace may be endangered, or to alarm her Majesty; or if any person shall, near to the Queen's person, wilfully produce or have any gun, pistol, or other description of firearms, or other arms whatsoever, or any explosive, destructive, or dangerous matter or thing whatsoever, with intent to use the same to injure the Queen's person or alarm her Majesty, the offender shall be guilty of a high misdemeanour, and liable at the discretion of the Court to be transported for seven years, or imprisoned with or without hard labour for any period not exceeding three years; and during such imprisonment to be publicly or privately whipped, as often and in such manner and form as the Court shall direct, not exceeding thrice."

This salutary statute (proposed by the late Sir Robert Peel) was passed unanimously; Lord John Russell justly remarking, that "as the offence to be punished was that of bad and degraded beings, a base and degrading punishment was most fitly applied to it." Her Majesty enjoyed a seven years' respite from the insufferable annoyance to which she had been subjected – viz., till the 19th May 1849 – when, about four o'clock in the afternoon, as she was driving in an open carriage with three of her children, a pistol was fired in the direction of the carriage by "one William Hamilton, an Irish bricklayer." The pistol was fired point-blank at the person of General Wemyss, one of her equerries, who happened to be in the line of her Majesty's person. This stolid wretch was tried on the 14th June ensuing, under the above statute, when he pleaded guilty, and was sentenced to be transported for seven years. Again, on the 12th of July last, it was rendered lamentably necessary to call this statute into operation, and with the like effect as in the preceding case: but we shall reserve our observations upon the case of Pate till after we have completed what we have to offer on those of Oxford and M'Naughten. We have just returned from an examination of those two notorious persons in Bethlehem Hospital, and shall by and by convey to the reader the result of our own careful observations, made since the earlier portions of this article were committed to the press.

Oxford's Case

The judges who presided at the trial – which took place at the Old Bailey, and lasted three days, (the 9th, 10th, and 11th July 1840) – were Lord Denman, Baron Alderson, and Justice Maule. The counsel for the crown were – the Attorney and Solicitor Generals, (Sir John Campbell and Sir Thomas Wilde), Sir Frederick Pollock, the present Mr Justice Wightman, Mr Adolphus, and Mr Gurney; those for the prisoner were the late Mr Sydney Taylor and Mr Bodkin. The indictment contained two counts – respectively applicable, in precisely the same terms, to the two acts of firing – charging that Oxford, "as a false traitor, maliciously and traitorously did compass, imagine, and intend to put our lady the Queen to death; and, to fulfil and bring into effect his treason and treasonable compassing, did shoot off and discharge a certain pistol loaded with gunpowder and a bullet, and thereby made a direct attempt against the life of our said lady the Queen," – in the words of statute 39 and 40 Geo. III., c. 93, § 1. The trial, as already observed, differed in no respect from an ordinary trial for felony; and neither the Crown nor the prisoner challenged a single juryman. "Oxford," says Mr Townsend, "stepped into the dock with a jaunty air, and a flickering smile on his countenance; glanced at the galleries, as if to ascertain whether he had a large concourse of spectators; and, leaning with his elbow on the ledge of the dock, commenced playing with the herbs16 which were placed there before him. He kept his gaze earnestly fixed on the Attorney-general during the whole of his address, twirling the rue about in his fingers, and became more subdued in manner towards the close of the speech."17 The facts constituting the outrage lie in a nutshell: The prisoner was seized instantly after having discharged two pistols, as the Queen and the Prince-consort were driving up Constitution Hill, in a low open carriage. He had been observed, for some time before the approach of the royal carriage, walking backwards and forewards with his arms folded under his breast. As the carriage approached, he turned round, nodded, drew a pistol from his breast, and discharged it at the carriage, when it was nearly opposite to him. As it advanced, after looking round to see if he were observed, he took out a second pistol, directed it across the other to her Majesty, who, seeing it, stooped down; and he fired a second time – very deliberately – at only about six or seven yards' distance. The witnesses spoke to hearing distinctly a sharp whizzing sound "close past their own ears." The prisoner, on seeing the person who had snatched from him the pistols mistaken for the person who had fired, said, "It was me – I did it. I give myself up – I will go quietly." At the police-office he said, "Is the Queen hurt?" Some one observed, "I wonder whether there was any ball in the pistol?" on which the prisoner said, "If the ball had come in contact with your head, if it were between the carriage, you would have known it." The witness who spoke to these words appears, however, to have somewhat hesitated when pressed in cross-examination; but he finally adhered to his statement that the prisoner declared there were balls in the pistols. A few days previously he had purchased the pistols for two sovereigns, about fifty percussion-caps, a powder-flask, which, with a bullet-mould and five bullets fitting the pistols, were found at his lodgings. He had also been practising firing at a target, and, on purchasing the pistols, particularly asked how far they could carry. The Earl of Uxbridge deposed that, when he saw Oxford in his cell, he asked, "Is the Queen hurt?" on which Lord Uxbridge said, "How dare you ask such a question?" Oxford then stated that "he had been shooting a great deal lately – he was a very good shot with a pistol, but a better shot with a rifle." "You have now fulfilled your engagement," said the Earl. "No," replied Oxford, "I have not." "You have, sir," rejoined Lord Uxbridge, "as far as the attempt goes." To that he was silent. The most rigid search was made to discover any bullets; but in vain. Two witnesses, gentlemen of rank, and well acquainted with the use of firearms, spoke confidently to having seen bullet-marks on the wall, in the direction in which Oxford had fired; but the Attorney-general expressed his opinion that the evidence was entitled to no weight, as probably mistaken; declaring himself, however, positive that there must have been balls in the pistols, but that the pistols had been elevated so high that the balls went over the garden-wall. One of the witnesses said to the other, immediately after seizing Oxford, "Look out – I dare say he has some friends;" to which he replied, "You are right – I have." At his lodgings were found some curious papers, in Oxford's handwriting, purporting to be the rules of a secret club or society called Young England; the first of which was, "that every member shall be provided with a brace of pistols, a sword, a rifle, and a dagger – the two latter to be kept at the committee-room." A list of members-factitives' [sic] names were given. "Marks of distinction: Council, a large white cockade; President, a black bow; General, three red bows; Captain, two red bows; Lieutenant, one red bow." There were also found in Oxford's trunk a sword and scabbard, and a black crape cap with two red bows – one of the "rules" requiring every member to be armed with a brace of loaded pistols, and to be provided with a black crape cap to cover his face, with his marks of distinction outside. Three letters were also found in his pocket-book, addressed to himself at three different residences, purporting to be signed by "A. W. Smith, secretary," and to contain statements of what had taken place, or was to take place, at the secret meetings of the society. They were all headed "Young England," and dated respectively "16th May 1839," "14th Nov. 1839," and "3d April 1840." Oxford said he had intended to destroy these papers in the morning, before he went out, but had forgotten it. All these papers – the "rules" and letters – were sworn by Oxford's mother to be in his own handwriting; and it should have been mentioned that there was not a tittle of evidence adduced to show that there were, in fact, any such society in existence, or any such persons as these papers would have indicated; nor, up to the present moment, has there been the least reason for believing that such was the case.

Thus closed the case for the Crown, undoubtedly a very formidable one. No attempt was made by the prisoner's counsel – who appear to have conducted the defence temperately and judiciously – to alter by evidence the position of the proved facts; which, therefore, were allowed to stand before the jury as almost conclusively establishing the case of high treason. Mr Taylor, however, strongly impaired the Attorney-general's notion that there had been in the pistols balls, which had gone over the wall; because his own witnesses had spoken decisively to the bullet-marks on the wall; yet no flattened balls had been produced, after all the search that had been made. Mr Taylor, therefore, inferred that the pistols had contained powder only: "a great outrage, unquestionably, but still not the treason charged." There was, again, he contended, there could have been, no motive for killing the Queen; and the idea of the Treasonable Society was mere moonshine – a pure invention concocted by a lunatic – one who had inherited insanity, and himself exhibited the proofs of its existence: for Mr Taylor undertook to prove the insanity of Oxford's grandfather, his father, and himself. The proof broke down as far as concerned the grandfather, a sailor in the navy; for it was clear that his alleged violent eccentricities had been exhibited when he was under the influence of liquor. The insanity of Oxford's father was sought to be established by his widow, the mother of the prisoner. If her story, "told with unfaltering voice and unshaken nerve," were correct, her husband had undoubtedly been a very violent and brutal fellow, with a dash of madness in his composition. It is possible that the mother, in her anxiety to save her son from a traitor's death on the scaffold, had, by a quasi pia fraus, too highly coloured her deceased husband's conduct. If this were not so, she had indeed been an object of the utmost sympathy. He forced her to marry him, she said, by furious threats of self-destruction if she did not: he burnt a great roll of banknotes to ashes in her presence, because she had refused, or hesitated, to become his wife. He used to terrify her, during her pregnancies, by hideous grimaces, and apish tricks and gesticulations: the results being that her second child was born, and within three years' time died, an idiot. Her husband pursued the same course during her pregnancy with the prisoner, and presented a gun at her head. The prisoner had always been a headstrong, wayward, mischievous, eccentric youth – subject to fits of involuntary laughing and crying. He was absurdly vain, boastful, and ambitious; and wished his mother to send him to sea, where he would have nothing to do but walk about the deck, give orders, and by and by become Admiral Sir Edward Oxford! This was the utmost extent of the facts alleged in support of the defence of insanity. The prisoner's whole life had been traced – in evidence – while he was at school, and in three distinct services; and he had never been confined, or in any way treated as mad. His sister spoke to his going out on the day of the outrage, and detailed a conversation evincing no symptoms of wandering. He used to have books from the library – "The Black Pirate," "Oliver Twist," and "Jack Sheppard." On leaving home that day, about three o'clock in the afternoon, he told his sister that he was going to the Shooting Gallery to buy some linen for her to make him some shirts, and to bring home some tea from a particular shop in the Strand. A nur-sery-maid to whom he had written a ludicrously-addressed letter a few weeks before, said, "I considered him in a sound state of mind, but sometimes very eccentric: " than which, no words were fitter to characterise the true scope and tendency of all the evidence which had been offered to prove him insane. Of that evidence, according to the genius and spirit, and also the letter of English law, twelve intelligent jurymen were the proper judges, under judicial guidance; and greatly to be deprecated is any attempt to deprive them of their right, and their fellow-subjects – the public at large – of the protection afforded by its unfettered exercise.