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

We therefore earnestly beg the reader to assume that he is given credit for an average degree of intelligence, and only a moderate amount of moral firmness – to imagine himself a juryman, charged with the solution of this critical problem. We ask – On the facts now laid before you, do you believe Oxford to have been no more conscious of, or accountable for, his actions, in twice deliberately firing at the Queen, than would have been a baby accidentally pulling the trigger of a loaded pistol, and shooting its fond incautious mother or affectionate attendant?

If Oxford, instead of shooting at the Queen, had shot himself that afternoon: would you, being sworn "to give a just and true verdict according to the evidence," have pronounced him insane – totally unconscious and irresponsible? Would you have declared him such, if required to say ay or no to that question on a commission of lunacy? Would you have declared his marriage, on that afternoon, null and void, on the ground of his insanity? Would you have declared his will void? or any contract, great or small, which he had entered into? Would you have declared his vote, in a municipal or parliamentary election, invalid? If he had committed some act of petty pilfering or cheating, would you have deliberately absolved him from guilt on the ground of insanity? Would you, in each and every one of these cases, have declared, upon your oath, that you believed Oxford 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 wrong?"18 We entreat you to forget altogether the enormity of the offence imputed to Oxford – an attempt to take the life of his Queen: dismiss it, and all consideration of consequences, as a disturbing force, and address your reason exclusively to the question last proposed. What would be your sworn answer? We beg you also to bear in mind from whom has proceeded the chief evidence in support of the defence of insanity – a mother, seeking to rescue her son from the fearful death of a traitor; and that the attempt to impugn his mental sanity is not made till after such a terrible occasion has arisen for doing so. Had it been their interest to establish his sanity, in order to uphold a will of his bequeathing them a large sum of money, who sees not how all their evidences of insanity would have melted into thin air, and the attempt to magnify and distort petty eccentricities into such, have been branded as cruel, unjust, and disgraceful?

But there came five doctors on the scene, and at their approach the light of reason was darkened. These astute personages – mysterious in their means of knowledge, and confident in their powers of extinguishing the common sense of both judges and jury – came to demonstrate that the unfortunate young gentleman at the bar was no more the object of punishment than the unconscious baby aforesaid; no more aware of the nature and consequences of the act which he had done than is the torch with which a haystack is fired, or the bullet, cannonball, or dagger with which life is taken away! But let them speak for themselves – these wise men of Gotham – these confident disciples of the "couldn't help it" school!

First Doctor. —Question by the prisoner's counsel and the Court – "Supposing a person, in the middle of the day, without any suggested motive, to fire a loaded pistol at her Majesty, passing along the road in a carriage; to remain on the spot; to declare he was the person who did it; to take pains to have that known; and afterwards to enter freely into discussion, and answer any questions put to him on the subject: would you, from those facts alone, judge a person to be insane?"

Answer.– "I should."

The Court. – "You mean to say, upon your oath, that if you heard these facts stated, you should conclude that the person would be mad?"

The Doctor. – "I do."

The Court. – "Without making any other inquiry?"

The Doctor. – "Yes!.. If, as a physician, I was employed to ascertain whether a person in whom I found these facts was sane or insane, I should undoubtedly give my opinion that he was insane."

The Court. – "As a physician, you think every crime, plainly committed, to be committed by a madman?"

The Doctor. – "Nothing of the kind; but a crime committed under all the circumstances of the hypothesis!"

As to the hypothesis proposed, the reader will not have failed to observe how inapplicable it was to the proved facts. Oxford certainly "remained on the spot" because he could not possibly have got away; there being a high wall on one side, high park railings on the other, and an infuriate crowd, as well as the Queen's attendants, on all sides. He also certainly "declared he was the person who did it;" but how absurd to deny what so many had witnessed?

Second Doctor. – He is asked the same question which had been proposed to the first Doctor, with the addition of "hereditary insanity being in the family" of the person concerned.

Answer.– "I should consider these circumstances of strong suspicion; but other facts should be sought before one could be warranted in giving a positive opinion."

Question by the Prisoner's Counsel. – "Are there instances on record of persons becoming suddenly insane, whose conduct has been previously only eccentric?"

Answer.– "Certainly. Supposing, in addition, that there was previous delusion, my opinion would be that he is unsound. Such a form of insanity exists, and is recognised."

Question by the Counsel for the Crown. – "What form of insanity do you call it?"

Answer.– "Lesion of the will – insanity connected with the development of the will. It means more than a loss of control over the conduct – morbid propensity. Moral irregularity is the result of that disease. Committing a crime without any apparent motive is an indication of insanity!" …

Question by the Court. – "Do you conceive that this is really a medical question at all, which has been put to you?"

Answer.– "I do: I think medical men have more means of forming an opinion on that subject than other persons."

Question.– "Why could not any person form an opinion, from the circumstances which have been referred to, whether a person was sane or insane?"

Answer.– "Because it seems to require a careful comparison of particular cases, more likely to be looked to by medical men, who are especially experienced in cases of unsoundness of mind."

Third Doctor. – "I have 850 patients under my care in a lunatic asylum. I have seen and conversed with the prisoner. In my opinion he is of unsound mind. I never saw him in private more than once, and that for perhaps half-an-hour, the day before yesterday; and I have been in court the whole of yesterday and this morning. These are the notes of my interview with him: – 'A deficient understanding; shape of the anterior part of the head, that which is generally seen when there has been some disease of the brain in early life. An occasional appearance of acuteness, but a total inability to reason. Singular insensibility as regards the affections. Apparent incapacity to comprehend moral obligations – to distinguish right from wrong. Absolute insensibility to the heinousness of his offence, and the peril of his situation. Total indifference to the issue of the trial; acquittal will give him no particular pleasure, and he seems unable to comprehend the alternative of his condemnation and execution: his offence, like that of other imbeciles who set fire to buildings, &c., without motive, except a vague pleasure in mischief. Appears unable to conceive anything of future responsibility.'"

Question by the Court. – "Did you try to ascertain whether he was acting a part with you, or not?"

Answer.– "I tried to ascertain it as well as I possibly could. My judgment is formed on all the circumstances together."

Fourth Doctor. – To the same general question put to first and second Doctor. —

Answer.– "An exceedingly strong indication of unsoundness of mind. A propensity to commit acts without an apparent or adequate motive, under such circumstances, is recognised as a particular species of insanity, called lesion of the will: it has been called moral insanity."

Question.– "From the conversation you have had with the prisoner, and your opportunity of observing him, what do you think of his state of mind?"

Answer.– "Essentially unsound: there seems a mixture of insanity with imbecility. Laughing and crying are proofs of imbecility – assisting me to form my opinion… When I saw him, I could not persuade him that there had been balls in the pistols – he insisted that there were none. He was indifferent about his mother when her name was mentioned. His manner was very peculiar: entirely without acute feeling or acute consciousness – lively, brisk, smart – perfectly natural – not as if he were acting, or making the least pretence. The interview lasted about three quarters of an hour."

Last Doctor. – "A practising surgeon for between three and four years. Had attended the prisoner's family."

Question.– "What is your opinion as to his state of mind?"

Answer.– "Decidedly that of imbecility – more imbecility than anything: he is decidedly, in my judgment, of unsound mind. His mother has often told me there was something exceedingly peculiar about him, and asked me what I thought. The chief thing that struck me was his involuntary laughing: he did not seem to have that sufficient control over the emotions which we find in sane individuals. In Newgate, he had great insensibility to all impressions sought to be made on him. His mother once rebuked him for some want of civility to me; on which he jumped up in a fury, at the moment alarming me, and saying 'he would stick her.' I think that was his expression."

Questioned by the Counsel for the Crown. – "I never prescribed for the prisoner, nor recommended any course of treatment, conduct, or diet whatever. I never gave, nor was asked for any advice. I concluded the disease was mental – one of those weak minds which, under little excitement, might become overthrown."

With every due consideration for these five gentlemen, as expressing themselves with undoubted sincerity and conscientiousness; with the sincerest respect for the medical profession, and a profound sense of the perplexities which its honourable and able members have to encounter in steering their course, when called upon to act in cases of alleged insanity – encountering often equally undeserved censure and peril for interfering and for not interfering – we beg to enter our stern and solemn protest on behalf of the public, and the administration of the justice, against such "evidence of insanity" as we have just presented to the reader. It may really be stigmatised as "The safe committal of crime made easy to the plainest capacity." It proceeds upon paradoxes subversive of society. Moral insanity? Absurd misnomer! Call it rather "immoral insanity," and punish it accordingly. Is it not fearful to see well-educated men of intellect take so perverted a view of the conditions of human society – of the duties and responsibilities of its members? Absence of assignable motive an evidence of such insanity as should exempt from responsibility! Inability to resist or control a motive to commit murder a safe ground for immunity from criminal responsibility! – that "criminal responsibility which," as the present Lord Chancellor, in replying for the Crown in Oxford's case, justly remarked, "secures the very existence of society."

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: —