upon a train of reflexions, which, we think, all will acknowledge to be profound, who are not resolved to call every thing shallow and empty, which they are forced to admit is beautiful and brilliant.

Gentlemen, when this melancholy catastrophe happened, and the prisoner was arraigned 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.

6

But the wisdom of the law is greater than any man's wisdom; how much more, therefore, than nine! 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 judg ment 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 day's quarantine before trial, lest the mind should bet subject to the contagion of partial affections!' p. 6, 7.

He now enters upon the subject, and cites the authorities of our great criminal lawyers, especially Lord Hale, as establishing the rule, that it must be a total and not a partial insanity which shall excuse. The rule, however, is of difficult application; and Lord Hale himself has admitted it when he says, that it is very difficult to define the invisible line which divides perfect and partial insanity; and adds, 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 towards the defects of human nature; or, on the other side, too great an indulgence given to great crimes. The arguments of Mr Erskine are addressed to the proper means of applying this rule; and they are, in our humble apprehension, equally ingenious and satisfactory. He first admits, that there is a material difference between the application of it to civil and to criminal cases. In the former, the law will justly avoid a man's act, if he be proved to be non compos mentis, although the act in question cannot be referred to the peculiar impulse of the malady;

There must be fifteen days between arraignment and trial

'OP

or even, though to all appearance it may be separate from it, provided only it be shown, that, at the time of doing the civil act, he was not of sound mind. But, in judging of a criminal act, some connexion must always be traced between the act and the delusion under which the person labours ;-it must appear to flow from that delusion. Here Mr Erskine clears away a misapprehension of the phrase total insanity, or total deprivation of mind and understanding, as used by Lord Coke and Lord Hale. If,' says he, a TOTAL deprivation of memory was intended by these great lawyers to be taken in the literal sense of the words; -if it was meant, that, to protect a man from punishment he must be in such a state of prostrated intellect as not to know his name, nor his condition, nor his relation towards others that, if a husband, he should not know he was married; or, if a father, could not remember that he had children; nor know the road to his house, nor his property in it-then no ⚫ such madness ever existed in the world. It is IDIOCY alone which places a man in this helpless condition; where, from an original mal-organization, there is the human frame alone without the human capacity. But in all the cases which have filled Westminster Hall with the most complicated considerations-the lunatics, and other insane persons who have been the subjects of them, have not only had memory, in my sense of the expression-they have not only had the most perfect knowledge and recollection of all the relations they stood in towards others, and of the acts and circumstances of their lives, but have, in general, been remarkable for subtlety and 'acuteness.'' These,' he adds, are the cases which frequently mock the wisdom of the wisest in judicial trials; because such persons often reason with a subtlety which puts in the shade the ordinary conceptions of mankind: their conclu*sions are just, and frequently profound; but the premises from which they reason, WHEN WITHIN THE RANGE OF THE MALADY, are uniformly false-not false from any defect of knowledge or judgment; but because a delusive image, the inseparable companion of real insanity, is thrust upon the subjugated understanding, incapable of resistance, because unconscious of attack.' The doctrine contended for is clearly expressed, and with a singular felicity of diction too, in the following pasage.

Delusion, therefore, where there is no frenzy or raving madness, is the true character of insanity; and where it cannot be predicated of a man standing for life or death for a crime, he ought 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

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 avoided can in no way be connected with the influence 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 connexion 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. I cannot allow the protection of insanity to a man who only exhibits violent passions and malignant resentments, acting upon real circumstances; who is impelled to evil from no morbid delusions; but who proceeds upon the ordinary perceptions of the mind.-I cannot 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. He alone can be so emancipated, whose disease (call it what you will) consists, not merely in seeing with a prejudiced eye, or with odd and absurd particularities, differing, in many respects, from the contemplations of sober sense, upon the actual existences of things; but, he only whose whole reasoning and corresponding conduct, though governed by the ordinary dictates of reason, proceed upon something which has no foundation or existence.

Gentlemen, it has pleased God so to visit the unhappy man before you;-to shake his reason in its citadel;-to cause him to build up, as realities, the most impossible phantoms of the mind, and to be impelled by them as motives irresistible: the whole fabric being nothing but the unhappy vision of his disease-existing no where else having no foundation whatsoever in the very nature of things. p. 17-19.

He adds a refutation, after dwelling at some length on the present case, of a proposition, much too vaguely broached by reasoners on this subject, that every person ought to be responsible for crimes who has the knowledge of good and evil.

'Let me suppose that the character of an insane delusion consisted in the belief that some given person was any brute animal, or an inanimate being, (and such cases have existed), and that upon the trial of such a lunatic for murder, you firmly, upon your oaths, were convinced, upon the uncontradicted evidence of an hundred persons,

that

that he believed the man he had destroyed, to have been a potter's vessel; that it was quite impossible to doubt that fact, although to all other intents and purposes he was sane; conversing, reasoning, and acting, as men not in any manner tainted with insanity, converse, and reason, and conduct themselves: suppose further, that he believed the man whom he destroyed, but whom he destroyed as a potter's vessel, to be the property of another; and that he had malice against such supposed person, and that he meant to injure him, knowing the act he was doing to be malicious and injurious, and that, in short, he had full knowledge of all the principles of good and evil; yet would it be possible to convict such a person of murder, if, from the influence of his disease, he was ignorant of the relation he stood in to the man he had destroyed, and was utterly unconscious that he had struck at the life of a human being? I only put this case, and many others might be brought as examples to illustrate, that the knowledge of good and evil is too general a description.' p. 24.

The case of Hadfield was brought within the law thus laid down, by evidence of his having been most severely wounded in service, so as to make him at times wholly insane ;-that he laboured under a delusion of a peculiar cast, being firmly persuaded he was to save mankind by dying a violent death;-yet that this death must be inflicted without the guilt of suicide;that he had recently attempted to kill his infant child, of which he was in general passionately fond;-and that his whole demeanour and conversation had been those of a most loyal subject, attached with peculiarly zealous feelings to the family and service of the king. It is said that Lord Kenyon, who presided at the trial, appeared much against the prisoner while the evidence was giving for the crown; but when Mr Erskine had stated the principle upon which he grounded his defence, and when his Lordship found that the facts came up to the case opened for the prisoner, he delivered to the Attorney-General the opinion of the Court, that the case should not be proceeded in: So there was a verdict of acquittal, without any reply for the Crown.

The speech for the Madras Council was delivered soon after Mr Erskine came to the bar, on an occasion which excited unexampled interest in those days of quiet, when the world was unaccustomed to great and strange events,-the arrest of Lord Pigot, in consequence of a misunderstanding between him and his Council. They were prosecuted at the desire of the House of Commons, and convicted; but when brought up for judgment, after Mr Dunning, Mr Erskine, and others, had been heard in mitigation, they were only sentenced to pay a fine of

* It was a trial at bar in the Court of King's Bench.

one

one thousand pounds, which was considered, and most justly, as a very lenient punishment. We abstain from entering further into the subject of this speech, because it is so similar to the late proceedings in the East, and in some of our other foreign settlements, that we prefer reserving the subject for a more regular and ample consideration. This speech is now published for the first time; and though from almost any other quarter it would excite no little admiration, we look upon it as one of the least brilliant of Mr Erskine's exhibitions, and by no means the shortest.

The last speech on a public trial contained in this volume, is the defence of Mr Cuthell; against whom an indictment for a libel had been preferred, in circumstances of so peculiar a nature, that we are extremely glad to find the case recorded. The interest it excites is closely connected with the topics of the present day, and the attacks which ill-advised men are making upon the liberty of the press. We must, therefore, enter somewhat at large into the case.

Mr Cuthell was an eminent bookseller, who dealt entirely in works upon literary subjects, being chiefly, if not altogether, a publisher of classical books. As such, he had been selected by Mr Gilbert Wakefield to publish the various editions of classics and other books, particularly on theological subjects, with which he enriched the republic of letters. In 1798, the Bishop of Llandaff (Dr. Watson) published an address to the people on the subject of an apprehended invasion: exhorting them to defend their country, to be loyal towards their king, and to love the constitution ;-expounding to them how disagreeable a thing conquest is, and what risks attend revolutions, and above all French revolutions ;-and recommending a new plan of finance, the details of which we have forgotten, as we presume every body else has, except one ;--but the general purport was, to pay off some hundreds of millions of public debt by levying taxes on the capital of the country. This project was pretty universally ridiculed at the time, and might have been safely left to its fate. The rest of the work was, if not quite so original, at least a good deal sounder; and one should have thought no man so squeamish as to object to a bishop for preaching up the usual doctrine of rallying for the defence of the state. Mr Wakefield, however, thought otherwise; and was so illadvised as to throw away time, which might have been so admirably and usefully employed in expounding the classics and the scriptures, upon a political controversy. He wrote a pamphlet in answer to Dr Watson, abounding indeed with point and wit,--in some parts sufficiently argumentative-in many very triumphant