436
The Green Bag,
was tried in 1760 for the murder of his steward. The murder was planned deliber ately; but the accused made no attempt to escape, and the evidence plainly showed him to be insane. He was, however, con victed and executed. The only points of interest in connection with the case are the solicitor-general's statement that the prisoner should be convicted unless it was proved "that he had not sufficient capacity to form a design and to know its consequences," and Smollet's extraordinary suggestion that luna cy should not be a bar to punishment at all. "Perhaps," says the historian, " it might be no absurd or unreasonable regulation in the legislature to divest lunatics of the privi leges of insanity and in cases of enormity subject them to the common penalties of the law; for, though in the eye of casuistry consciousness must enter into the constitu tion of guilt, the consequences of murder committed by a maniac maybe as pernicious to society as those of the most criminal and deliberate assassination, and the punishment by death can hardly be deemed unjust or rigorous when inflicted upon a mischievous being, divested of all the perceptions of reason and humanity." To the credit of England, it should be added, this argument has never, since Smollett's time, been put forward by any responsible public man. In 1800 James Hadficld was tried in the court of King's Bench, before Chief-Justice Kenyon and Justices Grose, Lawrence and Le Blanc, for having attempted to shoot King George III in Drury Lane Theatre. He was prosecuted by Sir John Mitford, after wards Lord Redesdale, Sir William Grant, afterwards Master of the Rolls, and Mr. Law, afterwards Lord Ellenborough, and defended by the Hon. Thomas Erskine, the greatest of English advocates and the ablest of English chancellors. Hadfield had at one time been a private in a dragoon regiment, had got his head severely wounded by sabre cuts at the battle of Limelles in 1/94, and had been discharged from the army on
account of insanity. He imagined that he had constant intercourse with the Almighty, that the world was coming to an end and that, like our Saviour, he vas to sacrifice himself for its redemption, and though he would not be guilty of suicide he wished to precipitate these events by the appearance of crime in order that his life might be taken away from him by others. Erskine defended him with great, though sometimes over-estimated, ability, and he was acquitted. Lord Kenyon said to the jury, " If a man is in a deranged state of mind at the time, he is not criminally answerable for his acts. The material part of the case is whether, at the very time when the act was committed, the man's mind was sane." This statement of the law marks a distinct improvement on the test prescribed by Mr. Justice Tracy, but it was not destined to hold the field. In Bellingham's case in 1812, Sir James Mans field summed up in the following terms: "There is a species of insanity where people take particular fancies into their heads who are perfectly sane and sound of mind upon all other subjects; but that is not a species of insanity which can excuse any person who has committed a crime unless it so affects his mind, at the particular period when he commits the crime, as to disable him from distinguishing between good and evil or judging of the consequences of his action." His lordship then put the case to the jury thus : " The question is this, whether you are satisfied that the prisoner had a sufficient degree of capacity to distinguish between good and evil and to know that he was committing a crime when he committed this act [the murder of the prime minister, Mr. Perceval]; in that case you will find him guilty." We come now to the great case which settled the English law as to the criminal responsibility of the insane on its present basis — The Queen r1. McNaghten. On Friday and Saturday, the third and fourth of March, 1843, Daniel McNaghten was
