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

Let us look at another aspect of this medical evidence given on this memorable occasion. Doctor the first pronounced his authoritative decision solely on the evidence given in court: influenced, it may be, by his having, many years before, been called in to attend the prisoner's father when labouring under symptoms of poisoning by laudanum. Doctor the second gave merely speculative evidence, without, as it would seem, having even seen the prisoner, and founded solely on what passed at the trial. Doctor the third never saw the prisoner before the trial but once, and then for "perhaps half an hour," on the first day of the trial, or the day before it! How potent that half hour's observation! Doctor the fourth saw the prisoner with doctor the third, for "perhaps three-quarters of an hour!" Doctor the fifth was a practising surgeon of not four years' standing – owning how "short a time he had been in practice." Let us only surrender our understandings to this queer quinary, and we arrive at a short and easy solution – very comfortable, indeed, for the young gentleman at the bar, who is doubtless filled with wonder at finding how sagaciously they saw into the thoughts which had been passing through his mind – the precise state of his feelings, views, objects, and intentions, when he fired at the Queen. But in the mean time we ask, can it be tolerated that medical gentlemen should thus usurp the province of both judge and jury? We answer, no! and shall place here on record the just and indignant rebuke of Mr Baron Alderson to a well-known medical gentleman, who had thus authoritatively announced his conclusion on the recent trial of Robert Pate.

Dr – . – "From all I have heard to-day, and from my personal observation, I am satisfied the prisoner is of unsound mind."

Baron Alderson. – "Be so good, Dr – , as not to take upon yourself the functions of both the judge and the jury. If you can give us the results of your scientific knowledge in this point, we shall be glad to hear you; but while I am sitting on this bench, I will not permit any medical witness to usurp the functions of both the judge and the jury."

It fell to the lot of Sir Thomas Wilde to reply for the Crown, in Oxford's case, as in that of Frost; and he discharged the responsible duty with his usual clearness and cogency. As to the facts, irrespective of the question of insanity, a single sentence disposed of them.

"What would be the condition of society – exposed as we all are to such attacks, and the infliction of death by such means – if, with the evidence of previous preparation of the means; the use of balls and pistols; inquiries as to the effect of their discharge, and whether the party was hurt, coupled with admission, incidental and direct, of the fact that balls were in the pistols: what would be the state of society, if evidence like this left an assassin the chance of escape merely because the balls could not be found?"

And, with this terse summary of the proved facts before our eyes, we ask a question of our own: What overwhelming evidence of insanity would not an intelligent and honest juryman require, to refer such a case to the category of criminal irresponsibility?

Sir Thomas Wilde vigorously and contemptuously crushed under foot the mischievous sophistries of the medical evidence.

"If eccentric acts were proof of insanity, many persons who were wrenching knockers off doors, knocking down watchmen, and committing similar freaks, were laying up a stock of excuses for the commission of crimes!"

"The trick of laughing suddenly, without cause, was so common, that if this were token of imbecility the lunatic asylum would overflow with gigglers!"

"The prisoner had all along displayed a morbid desire to be talked about; and the letters and documents produced had been written with that feeling and object. A criminal should not be permitted to write out for himself a certificate of lunacy!"

"Was his making no attempt to escape, a proof of an unsound mind? If he had made such an attempt, it would have been a great proof of madness! He was surrounded on all sides by the multitude. He took such a reasonable view of his situation, as to see that he had no chance of escape, and gave himself up quietly!"

"The prisoner had been allowed the unrestrained use of firearms and powder, and was well acquainted with their fatal effects on human life. Would his mother have trusted a madman with them? and left her mad son in the same house with her daughter?"

"The medical men went to Newgate pre-disposed and pre-determined to see a madman."

"Suppose the prisoner unfeeling, violent, indifferent to his own fate, and preferring notoriety to any other consideration: what evidence did that supply of his being in a state of moral irresponsibility? – that moral irresponsibility which secured the very existence of society."

All this surely sounds like an irresistible appeal to good sense.

Lord Denman directed the jury with corresponding clearness and decision, and also in full conformity with the views of the Solicitor-general, and with the subsequent annunciation of the law by the judges.¹⁹

"If you think the prisoner was, at the time, labouring under any delusion which prevented him from judging of the effects of the act he had committed, you cannot find him guilty. He might, perhaps, have been labouring under a delusion affecting every part of his conduct, and not directed to one object alone: if that were so at the time of his firing, he could not be held accountable for it. But if, though labouring under a delusion, he fired the loaded pistols at the Queen, knowing the possible result – though forced to the act by his morbid love of notoriety – he is responsible, and liable to punishment."

"There may be cases of insanity, in which medical evidence as to physical symptoms is of the utmost consequence. But as to moral insanity, I, for my own part, cannot admit that medical men have at all more means of forming an opinion, in such a case, than are possessed by gentlemen accustomed to the affairs of life, and bringing to the subject a wide experience."

"The mere fact of the prisoner's going into the park, and raising his hand against the Queen, is not to be taken as a proof of insanity – particularly if we suppose that he is naturally reckless of consequences. It is a mark, doubtless, of a mind devoid of right judgment and of right feeling; but it would be a most dangerous maxim, that the mere enormity of a crime should secure the prisoner's acquittal, by being taken to establish his insanity. Acts of wanton and dangerous mischief are often committed by persons who suppose that they have an adequate motive; but they are sometimes done by those who have no adequate motive, and on whom they can confer no advantage. A man may be charged with slaying his father, his child, or his innocent wife, to whom he is bound to afford protection and kindness; and it is most extravagant to say that this man cannot be found guilty, because of the enormity of his crime!"

The jury, thus charged with the principles of a humane and sound jurisprudence, retired, and after three quarters of an hour's absence returned with this special verdict: "We find the prisoner, Edward Oxford, guilty of discharging the contents of two pistols; but whether or not they were loaded with ball has not been satisfactorily proved to us —he being of unsound mind at the time." In other words, "We find that he did not fire a pistol loaded with ball because he was not of sound mind!" They were sent back, with a mild intimation that they had not sufficiently applied their minds to the true question – viz., Did the prisoner, ay or no, fire a pistol loaded with ball at the Queen? The foreman, "We cannot decide the point, because there is no satisfactory evidence produced before us, to show that the pistols were loaded with bullets." They retired, to return with a verdict of "'Guilty,' or 'Not Guilty,' on the evidence." After an hour's absence they finally brought back their verdict, "Guilty, he being at the time insane!"

Lord Denman.– "Do you acquit the prisoner, on the ground of insanity?"

Foreman of the Jury.– "Yes, my Lord; that is our intention."

Lord Denman.– "Then the verdict will stand thus: 'Not Guilty, on the ground of insanity.' The prisoner will be confined in strict custody, as a matter of course."

"The prisoner," says Mr Townsend,²⁰ "walked briskly from the bar, apparently glad that the tedious trial was over."

Upon the whole matter we are of opinion, —First, That there was very satisfactory evidence that the pistols were loaded with ball, and that the jury ought to have found their verdict accordingly. Secondly, If they remained of opinion, to the last, that there was no satisfactory evidence on this point, they ought unquestionably to have pronounced the prisoner Not Guilty, independently of any question as to the prisoner's state of mind. In Scotland, the jury would, in such a case, have returned a verdict of Not Proven; but in England, deficient evidence —i. e. such as leaves the jury finally in doubt – is regarded as leaving the charge unproved, &c., requiring the verdict of Not Guilty. Thirdly, The defence of insanity utterly failed, and the evidence offered in support of it was scarcely worthy of serious consideration. Lastly, It is possible that the verdict was given – though by men anxiously desirous of acting with mingled mercy and justice – under a condition of mental irresolution and confusion, and with a deficiency of moral courage. The jury either shrank from the fearful consequences of a verdict of Guilty, on a charge of high treason, and yet feared to let the prisoner loose again upon society; or there was a compromise between those who believed that there was, and there was not, sufficient evidence of the pistols having contained bullets; and also between those who were similarly divided on the subject of the prisoner's sanity. Thus stood, thus stands, the case; and Oxford has ever since been an inmate of Bedlam: though Mr Taylor, to whose work on Medical Jurisprudence we have already referred, and who is a decided and able supporter of that theory of "moral insanity" to which we, in common with all the Judges, are so strongly opposed, admits expressly that, with the exception of M'Naughten's case, "there is perhaps none on record, in English jurisprudence, where the facts in support of the plea of insanity were so slight as in that of Oxford."²¹

M'Naughten's Case

The case of Daniel M'Naughten, which was tried at the Old Bailey about two years and a half after that of Oxford – viz., on the 3d and 4th March 1843 – cannot be approached without a shudder, as one recalls the direful deed for which he was brought to trial – the assassination of Mr Drummond, whom the murderer had mistaken for the late Sir Robert Peel! To a candid philosophical jurist, this case is one of profound interest, and of considerable difficulty. The abrupt interposition of the presiding judge, the late Chief-justice Tindal – a step very unusual on such an occasion, and especially so in the case of that signally patient and cautious judge – occasioned much remark at the time, and a general, if not almost universal expression of regret that he had not allowed a case of such magnitude to run on to the end, and so have afforded the jury the vast advantage of hearing that consummate lawyer Sir William Follett's commentary upon the case, set up in behalf of the prisoner. The unexpected issue of this dreadful case led, as has been already explained, to Parliamentary discussion, and a solemn declaration by the assembled judges of England of the true principles applicable to such cases. We shall not examine the proceedings as minutely as in the case of Oxford; but we shall endeavour to enable the thoughtful reader to apply to the leading facts the rules of law laid down by the Judges for the conduct of these critical investigations. He can then form an opinion as to what might have been the result, if those principles had been strictly adhered to, and the case had gone on to its legitimate conclusion. It will be borne in mind that, as stated at the close of our account of Oxford's case, even Mr Taylor treats the case of M'Naughten as an acquittal proceeding on facts, alleged in support of the defence of insanity, "as slight as those in Oxford's case!"

Mr Drummond, the private secretary of the late Sir Robert Peel, then prime-minister, was returning alone to his residence in Downing Street, having just quitted Drummond's banking-house at Charing Cross, in the afternoon of Friday, the 20th January 1843, when a man (Daniel M'Naughten) came close behind him, and deliberately shot him in the back with a pistol which he had been seen to take from his left breast. While Mr Drummond staggered away, and the man who had shot him was seen quickly, but deliberately, taking another pistol from his right breast with his left hand, cocking it, and then transferring it to his right hand, he was tripped up by a police officer; and a desperate struggle occurred on the ground, during which the pistol went off – providentially without injuring any one. M'Naughten strove to use his right arm against the officer, but was overpowered, the pistols taken from him, and he was led to the station house. As he went, he said, "He" [or "she" – the witness was uncertain which word was used] shall not break my peace of mind any longer." On being searched, a banker's receipt for £745, two five-pound notes, and four sovereigns, and ten copper percussion caps fitting the nipples of the pistols which he had discharged, were found on his person; while bullets exactly fitting the barrels were discovered at his lodgings. The unfortunate gentleman who had been thus assassinated, died after great suffering, on the 25th January. He had borne a strong personal resemblance to the late Sir Robert Peel; and it was beyond all doubt that it had been Sir Robert Peel whom M'Naughten thought he had shot, and had intended to shoot. On the ensuing morning, when asked if he knew whom he had shot, he replied, "It is Sir Robert Peel, is it not?" and on being reminded that what he said might be given in evidence, he replied quickly, "But you won't use this against me?" He had shortly before said that, when brought before the magistrate, he would "give a reason, a short one," for what he had done; and also observed, that he was an object of persecution by the Tories – that they followed him from place to place with their persecution." He appeared calm; and gave a correct and connected account of his recent travelling movements. He was the natural son of a turner at Glasgow, from which, some months previously, he had come to London, and had then paid a short visit to France. Down to the moment of his committing this appalling act, he had been a man of rigorously temperate habits; and no one with whom he lodged or associated, entertained the slightest suspicion that his reason was in any way affected – though he appeared peculiarly reserved, and even sullen, which his landlady had attributed to his being out of a situation and poor; for though punctual in his small payments, he was frugal even to parsimony. She had no idea that he possessed so large a sum as £750. During the previous fortnight, he had been observed loitering so suspiciously in the neighbourhood of Sir Robert Peel's private and official residences as to challenge inquiry, which he parried by casual observations. In the month of November previously, he had remarked to a companion, on being shown Sir Robert Peel's house in Whitehall, "D – n him! Sink him!" or words to that effect. His other remarks were perfectly rational, and his companion entertained no notion "that his mind was disordered." The following two documents in his handwriting, dated in the May and July preceding the murder, are very remarkable, as indicating great caution, shrewdness, and thrift on the part of the writer. The first was addressed to the Manager of the Glasgow Bank, and is as follows: —

"Glasgow, 23d May 1842.

"Sir, – I hereby intimate to you, that I will require the money, ten days from this date, which I deposited in the London Joint-Stock Bank through you. The account is for £745. The account is dated August 28th 1841, but is not numbered! As it would put me to some inconvenience to give personal intimation, and then remain in London till the eleven days' notice agreed upon has expired, I trust this will be considered sufficient.

"Yours &c.,

"Daniel M'Naughten."

Two months afterwards – viz., in July – he purchased the fatal pistols of a gunsmith near Glasgow, giving him very precise directions as to their make; and on the 19th of July replied to the following advertisement, which appeared in the Spectator newspaper of the 16th of July: —

Optional Partnership. – "Any gentleman having £1000 may invest them, on the most advantageous terms, in a very genteel business in London, attended with no risk, with the option, within a given period, of becoming a partner, and of ultimately succeeding to the whole business. In the mean time, security and liberal interest will be given for the money. Apply by letter to B. B., Mr Hilton's, Bookseller, Penton Street, Pentonville."²²

M'Naughten's answer, which here follows, cannot be too closely scrutinised, and its general tone and tendency too anxiously weighed, by a dispassionate judicial mind, regard being had to the evidence hereafter to be adverted to, with reference to the alleged condition of the writer's mind, long previously to, at, and after the date of the letter.

"Glasgow, 19th July 1842.

"Sir, – My attention has been attracted to your advertisement in the Spectator newspaper, and as I am unemployed at present, and very anxious to obtain some, I have been induced to write, requesting you to state some particulars regarding the nature of the business in which you are engaged. If immediate employment can be given or otherwise, what sort of security will be given for the money, and how much interest? I may mention that I have been engaged in business on my own account for a few years, am under thirty years of age, and of very active and sober habits.

"The capital which I possess has been acquired by the most vigilant industry, but, unfortunately, does not amount to the exact sum specified in your advertisement. If nothing less will do, I will be sorry for it, but cannot help it; if otherwise, have the goodness to write to me at your earliest convenience, and address, D. M. N., 90, Clyde Street, Anderton's front land, top flat."²³

He went to London during the same month; appears to have gone for about a fortnight to France, returning to Glasgow; went a second time to London in September, and resided there, in the lodgings which he had formerly occupied, down to the day on which he shot Mr Drummond. His landlady accurately described his habits, and stated that "she never thought him unsettled in his mind;" and, on the very morning of the fatal day, "did not observe anything about his manner." Such was the tenor of all the evidence offered for the prosecution – some of it stretching back to the years 1840, 1841, when he attended anatomical lectures in Glasgow. A Writer to the Signet, who also attended them, and the physician who lectured, expressly declaring that they had never seen anything in him to indicate "disordered mind," or that "he was not in his right senses."

The following was the statement which he made and signed, when examined on the charge at Bow Street. This document, like the preceding, is worthy of great consideration.

"The Tories in my native city have compelled me to do this. They follow and persecute me wherever I go, and have entirely destroyed my peace of mind. They followed me into France, into Scotland, and all over England: in fact, they follow me wherever I go. I cannot get no rest for them night or day. I cannot sleep at night, in consequence of the course they pursue towards me. I believe they have driven me into a consumption. I am sure I shall never be the man I formerly was. I used to have good health and strength, but I have not now. They have accused me of crimes of which I am not guilty; they do everything in their power to harass and persecute me; in fact, they wish to murder me. It can be proved by evidence. That's all I have to say."²⁴

 

On Thursday the 2d February – that is to say, exactly a fortnight after the murder – M'Naughten was arraigned at the Old Bailey. When called upon, in the usual manner, to say whether he was Guilty or Not Guilty, he remained silent, with his eyes directed steadily towards the bench. At length, on being authoritatively required to answer, he said, after some hesitation, "I was driven to desperation by persecution." On being told that he must answer, "Guilty," or "Not Guilty," he replied that he was guilty of firing. On this Lord Abinger interposed, "By that, do you mean to say you are not guilty of the remainder of the charge – that is, of intending to murder Mr Drummond?" The prisoner at once said, "Yes;" on which Lord Abinger ordered a plea of Not Guilty to be recorded. It appears to us that there is great significance in what passed on this occasion.

An application was then made to postpone the trial, on affidavits stating that, by the next session, matured evidence could be adduced to show the insanity of the prisoner when he shot Mr Drummond. The Attorney-general (Sir Frederick Pollock) at once humanely assented to the application, and it was granted; as also ample funds out of the £764 found on the prisoner, to prepare effectively for the defence. Let us here pause for a moment, to contrast the treatment which M'Naughten – whose undisputed act had filled the whole country with horror and indignation – received on this occasion, with that experienced by his predecessor Bellingham, thirty years before, whose case very closely resembled that of M'Naughten in some fearful points. We can with difficulty record calmly that Bellingham's counsel, fortified by strong affidavits of the prisoner's insanity, and that witnesses knowing the fact could be brought from Liverpool and elsewhere, applied in vain for a postponement of the trial, the Attorney-general of that day barbarously, and even offensively, opposing the application, which was consequently at once overruled. Within seven days' time Bellingham shot Mr Percival, was committed, tried– if it be not a mockery to use the word – convicted, and executed. On Monday, the 11th May 1811, Bellingham shot his unfortunate victim, and on that day week (Monday, the 18th May 1811) the assassin's dead body lay on the dissecting-table! This vindictive precipitancy affords an awful contrast to the noble temper in which M'Naughten's application was entertained by the Attorney-general, the judge, and the justly-excited country at large. It supplied the eloquent advocate, (the present Solicitor-general, Sir Alexander Cockburn) who was subsequently retained by the prisoner, with a potent weapon of defence, of which he failed not to make effective use. It is not too much to say, that all who can concur in the acquittal of M'Naughten must regard Bellingham as judicially murdered. We concur heartily with M'Naughten's advocate in the remark, that "few will read the report of Bellingham's trial without being forced to the conclusion that he was either really mad, or, at the very least, the little evidence which alone he was permitted to adduce, relative to the state of his mind, was strong enough to have entitled him to a deliberate and thorough investigation of his case."²⁵

On Friday, March 3d, M'Naughten took his trial before the late Chief-justice Tindal, the late Mr Justice Williams, and Mr Justice Coleridge. The prosecution was conducted by the late Sir William Follett, then Solicitor-general, and the prisoner defended by the present Solicitor-general, then Mr Cockburn, Q. C. Nothing could exceed the temperate and luminous opening statement of Sir William Follett, who, in our judgment, laid down the rules of English law, applicable to the difficult and delicate subject with which he had to deal, with rigorous propriety.

"If you believe," said he, "that the prisoner at the bar, at the time he committed this act, was not a responsible agent – that, when he fired the pistol, he was incapable of distinguishing between right and wrong – that he was under the influence and control of some disease of the mind which prevented him from being conscious that he was committing a crime – that he did not know he was violating the law both of God and man – then, undoubtedly, he is entitled to your acquittal. But it is my duty to tell you that nothing short of that will excuse him, upon the principles of the English law. To excuse him, it will not be sufficient that he laboured under partial insanity upon some subjects – that he had a morbid delusion of mind upon some subjects, which could not exist in a wholly sane person; that is not enough, if he had that degree of intellect which enabled him to know and distinguish between right and wrong – if he knew what would be the effects of his crime, and consciously committed it; and if, with that consciousness, he wilfully committed it."

The witnesses for the prosecution established a case, if unanswered, of perfect guilt; the facts of the assassination were indisputable, and the evidence of the prisoner's sanity cogent in the extreme. Mr Cockburn addressed the jury at very great length, and in a strain of sustained eloquence and power, his object being to persuade the jury "that the prisoner was labouring, at the time of committing the act, under a morbid[?] insanity, which took away from him all power of self-control, so that he was not responsible for his acts. I do not put this case forward as one of total insanity; it is a case of delusion, and I say so from sources upon which the light of science has thrown her holy beam." Those who have read what has gone before concerning Oxford's case will appreciate this observation of Mr Cockburn, and gather from it his adoption, for the purpose of that defence, of the theory of moral insanity, which he enforced and illustrated by many striking and brilliant observations, calculated to produce a deep and strong impression on the minds of the jury, such as required the utmost exertions of Sir William Follett in reply, and finally of judicial exposition to efface, if fallacious – or modify to any extent rendered necessary by inaccuracy or exaggeration. Ten witnesses, all of them from Glasgow, were called, for the purpose of establishing the fact that the prisoner had, for some eighteen months previously to January 1843, appeared to labour, and had continually represented himself as labouring, under a persuasion that he was the victim of some such indefinite, mysterious, and incessant persecution as he spoke of in his statement before the magistrate at Bow Street. We are bound to say that the force of this testimony – coming chiefly from persons above all suspicion, and in a superior rank of life – is irresistible as to the existence of such an insane delusion down to the time of his quitting Glasgow. Not a witness, however, gave evidence of his exhibiting that tendency after his last return to London, before his shooting Mr Drummond. The only mention of Sir Robert Peel's name was by one of these ten witnesses, a former fellow-lodger of the prisoner's, who told him, in July 1842, that he had heard Sir Robert Peel speak in the House of Commons; preferred his speaking to that of Lord John Russell and Mr O'Connell; and said "he thought Sir R. Peel had arrived at what Lord Byron said of him – that 'he would be something great in the state.'" Mr Cockburn asked the witness, "Did you ever, on that or any other occasion, hear him speak at all disrespectfully of Sir Robert Peel?" Answer.– "Certainly not." One or two witnesses spoke to singularities of demeanour as early as the years 1835 and 1836. One of his landlords, in the former year, got rid of him as a lodger, "for one reason, in consequence of the infidel doctrines he maintained, and the books of such a character which he was in the habit of reading." One witness, who had succeeded him in his business, remonstrated with him, towards the end of 1842, about his notions as to being persecuted, telling him it was all imagination – that there were no such people as he supposed. He said that, "if he could once set his eyes on them, they should not be long in the land of the living," and became shortly afterwards very much excited. Sometimes he said he was "haunted by a parcel of devils following him." His landlady, seeing the brace of pistols which he had in September, just before his return to London, said – "What, in the name of God, are you doing with pistols there? He said 'he was going to shoot birds with them.' I never saw the pistols after that." He told the Commission of Police that the "persecution proceeded from the priests of the Catholic chapel in Clyde Street, who were assisted by a parcel of Jesuits." In August 1842, he told the same witness that "the police, the Jesuits, the Catholic priests, and Tories, were all leagued against him."

Mr Cockburn having thus "laid a broad foundation," says Mr Townsend, "for medical theories, upon them was built, by the nine physicians and surgeons who confirmed each other's theories, a goodly superstructure of undoubted insanity. Had the workings," continues Mr Townsend, sarcastically, "of the troubled brain been as distinctly visible to the eye, as the labours of bees seen through a glass hive, they could not have held the fact to be more demonstratively proved. Positive beyond the possibility of mistake, and infallible as theologians, they explained all that might appear without the aid of science inexplicable; and proved, as if they were stating undoubted facts, an irresponsible delusion."

One of the physicians attested his conviction, from an interview with the prisoner shortly before his trial, "as a matter of certainty, that M'Naughten was not responsible for his acts!" Well may Mr Townsend add, "By an excess of lenity, the counsel for the prosecution allowed these scientific witnesses to depart from the ordinary rules of evidence, to give their own conclusions from the facts proved, and usurp the province of the jury."²⁶ After going through the evidence (if the word can be used with propriety under such circumstances) of the other medical gentlemen, Mr Townsend observes, "Each physician and surgeon, as he stepped into the witness-box, seemed anxious to surpass his predecessor in the tone of decision and certainty; each tried to draw the bow of – (mentioning the first physician who had been called, and who was also called in Oxford's and Pate's case, in which latter he was rebuked by Baron Alderson,²⁷) and shoot, if possible, still farther into empty space." And this gentleman, Dr – , had asserted, under cross-examination by Sir William Follett, "his positive conviction that he could ascertain the nicest shade of insanity! that the shadowy trace of eccentricity, dissolving into madness, could be palpably distinguished!"²⁸ The last of these confident personages then was permitted to make this extraordinary statement: "I have not the slightest hesitation in saying that the prisoner is insane, and that he committed the offence in question whilst afflicted with a delusion under which he appears to have been labouring for a considerable length of time!!!"