contempt, and stirs up men without the advantages 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 should be the last persons to attack Christianity. Gentlemen, I can not conclude without exPeroration: pressing the deepest regret at all atThe friends of tacks upon the Christian religion by authors who profess to promote the civil liberties of the world. For under what other auspices than Christianity have the lost and subverted liberties of mankind in former ages been reasserted? By what zeal, but the warm zeal of devout Christians, have English liberties been redeemed and 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 commonwealth of greatness has the bald religion of nature ever established? We see, on the contrary, 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 has been slowly, but clearly, advancing lighter at every step, from the awful prophecies of the Gospel, and leading, I trust, in the end, to universal and eternal happiness. Each generation of mankind can see but a few revolving links of this mighty and mysterious chain; but, by doing our several duties in our allotted stations, we are sure that we are fulfilling the purposes of our existence. You, I trust, will fulfill yours this day! 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, DELIVERED 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 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 The transaction, indeed, in every part of it, as it stands recorded in the evidence alThe peculiarity of the proceed ready before us, places our country, ing in a case like this an honor to and its government, and its inhabitEnglish 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 subjects, YET NOT A HAIR OF THE HEAD OF THE assailant any private in Gentlemen, I agree with the Attorney General (indeed, there can be no possible Greater protec doubt) that if the same pistol had been fant of the 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 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 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. a stranger to the names, and even to the existence, of those who were to sit in judgment upon him, and of those who were to be the witnesses against him. But upon the charge of even this murderous attack upon the King himself, he is covered all over with the armor of the law. He has been provided with counsel by the King's own judges, and not of their choice, but of his own.3 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 difference. Gentlemen, when this melancholy catastrophe Difficult, at first happened, and the prisoner was arreason of this raigned for trial, I remember to have 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 the judges, are the children. It is fit, on that account, that there should be a solemn pause before we rush to judgment; and what can be a more sublime spectacle of justice than to see a statutable disqualification of a whole nation for a limited period, a fifteen days' quarantine before trial, lest the mind should be subject to the contagion of partial affections! distinction on the prisoner. From a prisoner so protected by the benevolence 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 for 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. reason easen. 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 OF MAN which test 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 fal witnesses, unless he shall willingly, and without violence, confess the same. The statute 7 Anne, cap. 21, directs that all per sons indicted for high treason shall have a copy of the indictment, together with a list of the witnesses to be produced against them on the trial, and of the jurors impanneled, with their professions and places of abode respectively, delivered to them ten days before trial, and in the presence of two or more wit 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 a 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. difficult is it to trace with accuracy the effect of diseased intellect upon human action, that I may appeal to all who hear me, whether there are any causes more difficult, or which, indeed, so often confound the learning of the judges themselves, as when insanity, or the effects and consequences of insanity, become the subjects of legal consideration and judgment. I shall pursue 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 ексиве. tice to believe that I would fairly and candidly do so; but great difficulties press upon my mind, which oblige me to take a different course. I agree with the Attorney General, that the law, in neither civil nor criminal cases, weakness of will measure the degrees of men's understandings. A weak man, however much below the ordinary standard of human intellect, is not only responsible for crimes, but is bound by his contracts, and may exercise dominion over his property. Sir Joseph Jekyll, in the Duchess of Cleveland's case, took the clear, legal distinction, when he said, "The law will not measure the sizes of men's capacities, so as they be compos mentis." Lord Coke, in speaking of the expression non 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.' 66 But notwithstanding the precision with which this great author points out the different kinds of this unhappy malady, the nature of his work, in this part of it, did not open to any illustration which it can now be useful to consider. In his fourth Institute he is more particular; but the admirable work of Lord Chief Justice Hale, in which he refers to Lord Coke's pleas of the Crown, renders all other authorities unnecessary. Lord Hale says, "There is a partial insanity of mind, and a total insanity. The Lord Hale. former is either in respect to things, quoad hoc vel illud insanire [to be insane as to this or that]. Some persons that have a competent use of reason in respect of some subjects, are yet under a particular dementia [deprivation of reason] in respect of some particular discourses, subjects, or applications; or else it is partial in respect of degrees; and this is the condition of very many, especially melancholy persons, who for the most part discover their defect in excessive fears and griefs, and yet are not wholly destitute of the use of reason; and this partial insanity seems not to excuse them in the committing 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." civil and crim Nothing, gentlemen, can be more accurately nor more humanely expressed; but Marked distine the application of the rule is often tion between most difficult. I am bound, besides, inal cases, to admit that there is a wide distinction between civil and criminal cases. If, in the former, a man appears, upon the evidence, to be non compos mentis, the law avoids his act, though it can not be traced or connected with the morbid imagination which constitutes his disease, and which may be extremely partial in its influence upon conduct; but to deliver a man from responsibility for crimes. above all, for crimes of great atrocity and wickedness, I am by no means prepared to apply this rule, however well established when property only is concerned. Greenwood. In the very recent instance of Mr. Greenwood (which must be fresh in his Lordship's This shown in 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 cause to avoid this will was tried here. We are not now upon the evidence, but upon the principle adopted as the law. The noble and learned judge, who presides upon this trial, and who presided upon that, told the jury, that if they believed Mr. Greenwood, when he made the will, to have been insane, the will could not be supported, whether it had disinherited his brother or not; that the act, no doubt, strongly confirmed the existence of the false idea which, if believed by the jury to amount to madness, would equally have affected his testament, if the brother, instead of being disinherited, had been in his grave; and that, on the other hand, if the unfounded notion did not amount to madness, its influence could not vacate the devise. This principle of law appears to be sound and reasonable, as it applies to civil cases, from the extreme difficulty of tracing with precision the secret motions of a mind, deprived by disease of its soundness and strength. Whenever, therefore, a person may be considered 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 excuse. 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 diffiNature 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.7 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 idiocy. 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 others, and of the acts and circumstances of their lives, but have, in general, been remarkable for subtlety and acuteness. Defects in their But a permanent reasonings have seldom been tracesort making able the disease consisting in the delusive sources of thought; all their deductions within the scope of the malady being founded upon the immovable assumption of matters as realities, either without any foundation whatsoever, or so distorted and disfigured by fancy as to be almost nearly the same thing as their creation. It is true, indeed, that in some, perhaps in many cases, the human mind is stormed in its citadel, and laid prostrate under the stroke of frenzy; these unhappy sufferers, however, are not so much considered, by physicians, as maniacs, but to be in a state of delirium as if from fever. There, indeed, all the ideas are overwhelmed-for reason is not merely disturbed, but driven wholly from her seat. Such 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), are wholly deprived Ссс delusion of some things appear real which are not so. with the unlaw Delusion, therefore, where there is no frenzy or raving madness, is the true char- This delusion acter of insanity. Where it can not al cases, be dimust, in crimin be predicated of a man standing for rectly connected life or death for a crime, he ought ful act. not, in my opinion, to be acquitted; and if courts of law were to be governed by any other principle, every departure from sober, rational conduct would be an emancipation from criminal justice. I shall place my claim to your verdict upon no such dangerous foundation. I must convince you, not only that the unhappy prisoner was a lunatic, within my own definition of lunacy, but that the act in question was the immediate, unqualified offspring of the disease. In civil cases, as I have already said, the law avoids every act of the lunatic during the period of the lunacy, although the delusion may be extremely circumscribed; although the mind may be quite sound in all that is not within the shades of the very partial eclipse; and although the act to be avoid 7 And frights the isle from her propriety.-Othel lo, act ii., sc. 3. The reader can not fail to remark the strength and beauty of the images used here, and in other passages above and below to describe the different kinds of madness. ed can in no way be connected with the influ- | that every person who listened to his conversaence of the insanity-but to deliver a lunatic from responsibility to criminal justice, above all in a case of such atrocity as the present, the relation between the disease and the act should be apparent. Where the connection is doubtful, the judgment should certainly be most indulgent, from the great difficulty of diving into the secret sources of a disordered mind; but still, I think that, as a doctrine of law, the delusion and the act should be connected. The doctrine Similar case. tion, and observed his deportment upon his ap- You perceive, therefore, gentlemen, that the prisoner, in naming me for his counshould be held sel, has not obtained the assistance very strictly on this subject. of a person who is disposed to carry the doctrine of insanity in his defense so far as even books would warrant me in carrying it. Some of the cases--that of Lord Ferrers, for instance-which I shall consider hereafter, as distinguished from the present-would not, in my mind, bear the shadow of an argument, as a defense against an indictment for murder. I can not allow the protection of insanity to a man who 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. possession of his mind on oth Gentlemen, it has been stated by the Attorney He bad the full General, and established by evidence 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 person. 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 op pression. 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, "I 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) when |