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CHAPTER XII.

OF CRIMINAL OFFENCES COMMITTED BY, AND AGAINST LUNATICS.

SECTION I.

Of Crimes committed by Lunatics.

THE essence of a crime consists in the animus or intention of the person who commits it, considered as a free agent, and in a capacity of distinguishing between moral good and evil. The man under the influence of real madness, has properly no will, but commits actions unconsciously and insensibly, and, therefore, cannot be made answerable for their consequences, in the same manner as persons in their senses.

A man totally and permanently mad, cannot be guilty of a crime, and is not amenable to the laws of his country as a criminal, although the law has provided for his safe custody.

If a man subject to temporary fits of complete and perfect madness commits a crime, he is not liable to punishment for such acts as were done in the midst of his delirium, but for those committed in his lucid intervals, he is as liable to punishment as any other man, and if on his trial he pleads insanity, it will be incumbent on him to prove that the act with which he stands charged was committed at a time when he was actually insane. And if a person liable to partial insanity, which only relates to particular subjects or notions, upon which he talks and acts like a madman; still, if he has as much reason as enables him to distinguish between right

and wrong, he will be liable to that punishment which the law attaches to his crime.

In the case of Lord Ferrers, who was tried before the House of Lords for murder; it was proved that his Lordship was occasionally insa., and incapable, from his insanity, of knowing what he did, or judging of the consequences of his actions. But the murder was deliberate, and it appeared, that when he committed the crime, he had capacity sufficient to form a design and know its consequences. It was urged, on the part of the prosecution, that complete possession of reason was unnecessary to warrant the judgment of the law, and that it was sufficient, if the party had such possession of reason as enabled him to comprehend the nature of his actions and discriminate between moral good and evil. And he was found guilty and executed (a).

In Arnold's case, who was tried at Kingston before Mr. Justice Tracy, for maliciously shooting at Lord Onslow, it appeared clearly that the prisoner was, to a certain extent, deranged, and that he had greatly misconceived the conduct of Lord Onslow; but it also appeared, that he had formed a regular design, and prepared the proper means for carrying it into effect. The learned Judge left the case to the jury, observing, "that the fact for which the prisoner was indicted, was proved beyond all manner of contradiction; but whether the shooting was malicious, depended upon the sanity of the man, whether the prisoner had the use of reason and sense? If he was under the visitation of God, and could not distinguish between good and evil, and did not know what he did, though he committed the greatest offence, yet he could not be guilty of any offence against any law whatsoever; for guilt arose from the mind, and the wicked will and intention of the man. If a man be deprived of his reason, and consequently of his intention, he could not be guilty; and if that be the case, though he had actually killed Lord Onslow, he was exempted from punishment; punishment being intended for example, and to deter other persons from wicked designs; but the punishment of a madman, a per

(a) Lord Ferrers' case, 19 Howell's St. Tr. 947.

son without design, can have no example. On the other side, it is not every frantic and idle humour of a man, that would exempt him from justice, and the punishment of the law. It must be a man that is totally deprived of his understanding and memory, and did not know what he was doing, more than an infant, a brute, or a wild beast; such a one was never the object of punishment; therefore he left to the jury the consideration, whether the condition the prisoner was proved to be in, shewed that he knew what he was doing, and was able to distinguish whether he was doing good or evil, and understood what he did; and as it was admitted on the part of the prisoner, that he was not an idiot, and, as a lunatic might have lucid intervals, the jury was to consider what he was at the day when he committed the fact in question. There were many circumstances about buying the powder, and the shot, his going backward and forward; and, if they believed he had the use of his reason, and understood what he did, then he was not within the exemption of the law, but was as subject to punishment as any other person (b).”

In Parker's case, who was indicted for aiding the King's enemies, by entering into the French service, in the time of war between France and this country, the defence of the prisoner was rested upon the ground of insanity; and a witness on his behalf stated, that his general character from a child was that of a person of very weak intellects; so weak that it excited surprise in the neighbourhood when he was accepted for a soldier. But the evidence for the prosecution, had shewn the act to have been done with considerable deliberation, and possession of reason; and that the prisoner, who was a marine, having been captured by the French, and carried into the isle of France, after a confinement of about six weeks, entered voluntarily into the French service, and stated to a captive comrade, that it was much more agreeable to be at liberty, and have plenty of money, than remain confined in a dungeon. The Attorney-General replied to this defence of insanity, that, before it could have any

(b) Arnold's case, 16 Vol. Howell's St. Tr. pp. 764, 765.

weight in rebutting a charge so clearly made out, the jury must be properly satisfied, that at the time when the crime was committed, the prisoner did not really know right from wrong. And the jury, after hearing the evidence summed up, without hesitation pronounced the prisoner guilty (c).

Thomas Bowler was tried at the Old Bailey on the 2nd July, 1812, for shooting at, and wounding William Burrowes. The defence set up for the prisoner was, insanity occasioned by epilepsy; and it was proved, that the prisoner was seized with an epileptic fit on the 9th July, 1811, and was brought home apparently lifeless, since which time a great alteration in his conduct and demeanor was perceived; that he would frequently rise at nine o'clock in the morning, eat his meal almost raw, and lie in the grass exposed to the rain; and that his spirits were so dejected, that it was necessary to watch him, lest he should destroy himself. Mr. Warburton, the keeper of a lunatic asylum, deposed that it was characteristic of insanity occasioned by epilepsy for the patient to imbibe violent antipathies against particular individuals, even his dearest friends, and to have a desire of taking vengeance upon them, from causes wholly imaginary, which no persuasion could remove; and that yet the patient might be rational and collected upon every other subject. He had no doubt of the insanity of the prisoner, and said he could not be deceived by assumed appearances. A commission of lunacy was also produced, dated 17th June, 1812, and an inquisition taken upon it, whereby the prisoner was found insane, and to have been so from the 30th March, preceding. Mr. Justicc Le Blanc, after summing up the evidence, concluded by observing to the jury, that it was for them to determine whether the prisoner, when he committed the offence with which he stood charged, was incapable of distinguishing right from wrong, and not under the influence of any illusion in respect of the prosecutor which rendered his mind at the moment insensible of the nature of the act he was about to commit; since, in that case, he would

(c) Parker's case, tried by a spe- Lane, 11 February, 1812, for high cial commission in Horsemonger treason, 1 Coll. on Lun. 477.

not be legally responsible for his conduct. On the other hand, provided they should be of opinion that, when he committed the offence, he was capable of distinguishing right from wrong, and not under the influence of such an illusion as disabled him from discerning that he was doing a wrong act, he would be amenable to the justice of his country, and guilty in the eye of the law. The jury, after considerable deliberation, pronounced the prisoner guilty, and he was afterwards executed (d).

In Bellingham's case, who was tried for the murder of Mr. Perceval, a part of the prisoner's defence, not urged by himself, but by his counsel, was insanity; and, upon this part of the case, Mansfield, Chief Justice, is reported to have stated to the jury, that, in order to support such a defence, it ought to be proved by the most distinct and unquestionable evidence, that the prisoner was incapable of judging between right and wrong; that, in fact, it must be proved beyond all doubt, that, at the time he committed the atrocious act with which he stood charged, he did not consider that murder was a crime against the laws of God and nature; and that there was no other proof of insanity which would excuse murder, or any other crime. That, in the species of madness called lunacy, where persons are subject to temporary paroxysms, in which they are guilty of acts of extravagance, such persons committing crimes when they are not affected by the malady would be, to all intents and purposes, amenable to justice; and that, so long as they could distinguish good from evil, they would be answerable for their conduct. And that, in the species of insanity in which the patient fancies the existence of injury, and seeks an opportunity of gratifying revenge by some hostile act, if such person be capable in other respects of distinguishing right from wrong, there would be no excuse for any act of atrocity which he might commit under this description of derangement (e). The prisoner was found guilty, and executed.

(d) Bowler's case, Old Bailey, 2nd July, 1812. See 1 Coll. on Lun. p. 673; Annual Reg. 54 Vol. p. 309.

(e) Bellingham's case, Old Bailey, 15th May, 1812; 1 Coll. on Lun. 636. The doctrine of Chief Justice