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contempt, and stirs up men without the advant-commonwealth of greatness has the bald religioɔn ages of learning or sober thinking to a total disbelief of every thing hitherto held sacred, and, consequently, to a rejection of all the laws and ordinances of the state, which stand only upon the assumption of their truth.

Civil liberty

last persons to attack Chris

of nature ever established? We see, on the con. trary, the nations that have no other light than that of nature to direct them, sunk in barbarism or slaves to arbitrary governments; while, since the Christian era, the great career of the world Gentlemen, I can not conclude without ex- has been slowly, but clearly, advancing lighter Peroration: pressing the deepest regret at all at- at every step, from the awful prophecies of the The friends of tacks upon the Christian religion by Gospel, and leading, I trust, in the end, to unishould be the authors who profess 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, but 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 of the earth? What work of civilization, what

tianity.

The jury found a verdict of Guilty, without retiring from their seats.

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, vol. 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 merely privileged, but appointed by the authority of the court to perform, exhibits to the whole civilized world a perpetual monument of our national justice.1

SUPPOSED ASSASSIN WAS TOUCHED. In this unparalleled scene of calm forbearance, the King himself, though he stood first in personal interest and feeling, as well as in command, was a singular and fortunate example. The least appear. The transaction, indeed, in every part of it, as ance of emotion on the part of that august perit stands recorded in the evidence al- sonage must unavoidably have produced a scene The peculiarity of the proceed ready before us, places our country, quite different, and far less honorable than the ing in a case like 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 human elevation. It appears that, upon the 15th day of May last, his Majesty, after a reign of forty years, not merely in sovereign power, but spontaneously in the very hearts of his people, was openly shot at (or to all appearance shot at) in a public theater [Drury Lane], in the center of his capital, and amid the loyal plaudits of his

mained unmoved, and the person apparently of fending was only secured, without injury or reproach, for the business of this day.

assailant of the

any private in

Gentlemen, I agree with the Attorney General2 (indeed, there can be no possible Greater protec doubt) that if the same pistol had been tion given to an maliciously fired by the prisoner, in King than of the same theater, at the meanest man dividual within its walls, he would have been brought to 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 prejudiced judgments. The same thought is admirably introduced in a different connection at the close.

2 Sir John Mitford, afterward Lord Redesdale, and Lord Chancellor of Ireland

3

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 judgment upon account, that there should be a solemn pause behim, and of those who were to be the witnesses fore we rush to judgment; and what can be a gainst him. But upon the charge of even this more sublime spectacle of justice than to see a murderous attack upon the King himself, 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! Bion He has had a copy of the indictment ten days before his trial. He has had the names, descriptions, and abodes of all the jurors returned to the court; and the highest privilege of peremptory challenges derived from, and safely directed by that indulgence. He has had the same description of every witness who could be received to accuse him; and there must at this hour be twice the testimony against him which would be legally competent to establish his guilt on a similar prosecution by [in behalf of] the meanest and most helpless of mankind.

view, to see the

Gentlemen, when this melancholy catastrophe Difficult, at first happened, and the prisoner was arreason of this raigned for trial, I remember to have difference. said to some now present, that it was, at first view, difficult to bring those indulgent exceptions to the general rules of trial within the principle which dictated them to our humane ancestors in cases of treasons against the political government, or of rebellious conspiracy against the person of the King. In these cases, the passions and interests of great bodies of powerful men being engaged and agitated, a counterpoise became necessary to give composure and impartiality to criminal tribunals; but a mere murderous attack upon 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.

That reason

But the wisdom of the law is greater than any man's wisdom; how much more, thereassigned. fore, than mine! An attack upon the King is considered to be parricide against the state, and the jury and the witnesses, and even

distinction on

the prisoner.

From a prisoner so protected by the benevo lence of our institutions, the utmost The obligations good faith would, on his part, be due imposed by this to the public if he had consciousness the counsel fo and reason to reflect upon the obligation. The duty, therefore, devolves on me; and, upon my honor, it shall be fulfilled. I will employ no artifices of speech. I claim only the strictest protection of the law for the unhappy man before you. I should, indeed, be ashamed if I were to say any thing of the rule in the abstract by which he is to be judged, which I did not honestly feel; I am sorry, therefore, that the subject is so difficult to handle with brevity and precision. Indeed, if it could be brought to a clear and simple criterion, which could admit of a dry admission or contradiction, there might be very little difference, perhaps none at all, between the Attorney General and myself, upon the principles which ought to govern your verdict. But this is not possible, and I am, therefore, under the necessity of submitting to you, and to the judges, for their direction (and at greater length than I wish), how I understand this difficult and momentous subject.

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It is agreed by all jurists, and is established by the law of this and every other coun- The exercise of 3 By 7 Will. III., cap. 3, sec. 1, a person charged try, that it is the REASON OF MAN which con essen 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 ful witnesses, unless he shall willingly, and without violence, confess the same.

difficult is it to trace with accuracy the effect of diseased intellect upon human action, that I may The statute 7 Anne, cap. 21, directs that all persons 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 con of 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 wit-gal consideration and judgment. I shall pursue nesses. But now, by 39 and 40 Geo. III., cap. 93, and 5 and 6 Vict., cap. 51, the proceedings in trials for high treason in compassing the death or bodily harm of the Queen are assimilated to those in trials for murder.

• On a trial for high treason, the prisoner is allowed ▲ peremptory challenge of thirty-five jurors; that is, one under the number of three full juries. This is the effect of 1 and 2 Philip and Mary, cap. 10, sec. 7.

the subject as the Attorney General has properly discussed it. I shall consider insanity, as it annuls a man's dominion over property, as it dissolves his contracts, and other acts, which otherwise would be binding, and as it takes away his responsibility for crimes. If I could draw the line in a moment between these two views of the subject, I am sure the judges will do me the jus

It is not mere

mind, but deprivation of reason, which operates as an

excuse.

eivil and crisa

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 Marked distanc which oblige me to take a different course. the application of the rule is often tion 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 menmuch 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. 66 compos mentis, says, Many times (as Lord Coke. here) the Latin word expresses the true sense, and calleth him not amens, demens, furiosus, lunaticus, fatuus, stultus, or the like, for non compos mentis is the most sure and legal." He then says, "Non compos mentis is of four sorts: first, ideota [an idiot], which from his nativity, by a perpetual infirmity, is non compos mentis; secondly, he that by sickness, grief, or other accident, wholly loses his memory and understanding; thirdly, a lunatic that hath sometimes his understanding, and sometimes not; aliquando gaudet lucidis intervallis [has sometimes lucid intervals]; and, therefore, he is called non compos mentis so long as he hath not understanding."

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Greenwood.

In the very recent instance of Mr. Greenwood (which must be fresh in his Lordship's recollection), the rule in civil cases the case of was considered to be settled. That gentleman, while insane, took up an idea that a most affectionate brother had administered poison to him. Indeed, it was the prominent feature of his insanity. In a few months he recovered his senses. He returned to his profession as an advocate; was sound and eminent in his practice, and in all respects a most intelligent and useful member of society; but he could never dislodge from his mind the morbid delusion which disturbed it; and under the pressure, no doubt, of that diseased 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 prewhich it can now be useful to consider. In his sided upon that, told the jury, that if they befourth 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 ported, whether it had 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 false idea which, if believed 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 this 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 tracin respect of degrees; and this is the conditioning with precision the secret motions of a mind, 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 of any offense for its matter capital. For, doubtless, most persons that are felons of themselves and others, are under a degree of partial insanity when they commit these offenses. It is very difficult to define the invisible 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 toward the defects of human nature; or, on the other side, too great an indulgence given to great crimes."

Lord Hale.

deprived by disease of its soundness and strength.

Whenever, therefore, a person may be consid ered non compos mentis, all his civil acts are void, whether they can be referred or not, to the morbid impulse of his malady, or even though, to all visible appearances, totally separated from it. But I agree with Mr. Justice Tracey, that it is not every man of an idle, frantic appearance and behavior, who is to be considered as a lunatic, either as it regards obligations or crimes; but that he must appear to the jury to be non compos mentis, in the legal acceptation of the term; and that, not at any anterior period, which can have

The jury in that case found for the will; but after a contrary verdict in the Common Pleas, a compromise took place.

no bearing upon any case whatsoever, but at the | of their UNDERSTANDINGS, in the Attorney Genmoment when the contract was entered into, or the crime committed.

in most cases

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eral's seeming sense of that expression. But 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 attention 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 ment, 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 Not mere 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 malady) 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 tuity 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 age, 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 falsethe most complicated considerations-the luna- not false from any defect of knowledge or judgtics, 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, bet ble for subtlety and acuteness. Defects in their be predicated of a man standing for reco But a permanent reasonings have seldom been trace-life or death for a crime, he oughtful act ort making able the disease consisting in the not, in my opinion, to be acquitted; and if courts delusive sources of thought; all of law were to be governed by any other princitheir 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 some, 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 circumdelirium 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, therefore, except at short intervals, even of external objects; or, at least, are wholly incapable of considering their relations. Such persons, and such persons alone (except idiots), a wholly deprived Ccc

delusion of some

dings appear real which are aot so.

must, in crnin

with the unlaw

lo, act ii., sc. 3. The reader can not fail to remark And frights the isle from her propriety.-Othel the strength and beauty of the images used here, and in other passages above and below to describe the different kinds of madness.

The doctrine should be held very strictly on this subject.

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 ap from responsibility to criminal justice, above all prehension, must have given precisely the eviin 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 doubtful, to those who examined him. But what then? the judgment should certainly be most indulgent, I conceive, gentlemen, that I am more in the 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 re- Similar cass act should be connected. member (indeed, I never can forget it), You perceive, therefore, gentlemen, that the that since the noble and learned Judge has preprisoner, in naming me for his coun-sided in this court, I examined, for the greater 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, nind, bear the shadow of an argument, as a de- although my instructions left me no doubt of the fense against an indictment for murder. I 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 infirmwho only exhibits violent passions and malig-ity. You may believe that I left no means unlant resentments, acting upon real circumstances; who is impelled to evil by no morbid delusions; but who proceeds upon the ordinary perceptions of the mind. I can not consider such a man as falling within the protection which the law gives, and is bound to give, to those whom it has pleased God, for mysterious causes, to visit with this most afflicting calamity.

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Gentlemen, it has pleased God so to visit the unhappy man before you; to shake his insanity of the reason in its citadel; to cause him to prisoner. build up as realities the most impossible phantoms of the mind, and to be impelled by them as motives irresistible: the whole fabric being nothing but the unhappy vision of his disease-existing nowhere else having no foundation whatsoever in the very nature of things. Gentlemen, it has been stated by the Attorney He had the full General, and established by evidence is moth which I am in no condition to coner subjects. tradict, nor have, indeed, any interest in contradicting, that, when the prisoner bought the pistol which he discharged at or toward his Majesty, he was well acquainted with the nature and use of it; that, as a soldier, he could not but know, that in his hands it was a sure instrument of death; that, when he bought the gunpowder, he knew it would prepare the pistol for its use; that, when he went to the playhouse, he knew he was going there, and knew every thing connected with the scene, as perfectly as any other perscu. I freely admit all this: I admit, also,

employed which long experience dictated, but without the smallest effect. The day was wasted, and the prosecutor, by the most affecting history of unmerited suffering, appeared to the judge and jury, and to a humane English audience, as the victim of the most wanton and barbarous oppression. At last Dr. Sims came into court, who had been prevented, by business, from an earlier attendance, and whose name, by-the-by, I observe to-day in the list of the witnesses for the Crown. From Dr. Sims I soon learned that the very man whom I had been above an hour examining, and with every possible effort which counsel are so much in the habit of exerting, believed himself to be the Lord and Savior of mankind; not merely at the time of his confinement, which was alone necessary for my defense, but during the whole time that he had been triumphing over every attempt to surprise him in the concealment of his disease! I then affected to lament the indecency of my ignorant examination, when he expressed his forgiveness, and said, with the utmost gravity and emphasis in the face of the whole court, “Í AM THE Christ;" and so the cause ended. Gentlemen, this is not the only instance of the power of concealing this malady. I could consume the day if I were to enumerate them; but there is one so extremely remarkable, that I can not help stating it.

Another simi lar case.

Being engaged to attend the assizes at Chester upon a question of lunacy, and having been told that there had been a memorable case tried before Lord Mansfield in this place, I was anxious to procure a report of it. From that great man himself (who, within these walls, will ever be reverenced, being then retired, in his extreme old age, to his seat near London, in my own neighborhood) I obtained the following account of it: "A man of the name of Wood," said Lord Mansfield, "had indicted Dr. Monro for keeping him as a prisoner (I believe in the same mad-house at Hoxton) wher

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