In the particular case before us, the jury may most rationally have thought that this man knew it was wrong to shoot Mr. Waugh, and that it was in his power to abstain from doing so, but that, being mad, he was in so excitable a state, and would naturally, attach such undue importance to the delusions under which he laboured respecting his victim, as to be a proper object for mercy. No doubt it was foolish to substitute for the word “madness" the vague phrase of “predisposition to insanity." But the jury were, we think, perfectly right in considering that there are cases in which madness would justify a recommendation to mercy, though it would not justify an acquittal—just as there are other cases in which it would justify neither the one nor the other; while there may also be cases in which it would be an aggravation of the offence—as, for example, when temporary insanity has been produced by intoxication. The only notion which the law forms of insanity is that it is, or may be, one way of producing the state in which a man is non compos mentis,—that is, says Lord Denman (in R. v. Offord), "incapable of distinguishing right from wrong." The law gives no other immunities to madmen than it gives to infants or to drunkards. Indeed, properly speaking, it takes no notice of madness at all, but only of the effects which madness in some cases produces. In every conceivable criminal case, the question whether the prisoner's act falls within the legal definition of the crime of which he is accused, depends upon the question whether he voluntarily did the action, knowing what he was about, and not being disabled by mental disease from knowing that the law regards the action as wrong. The meaning of this last phrase we understand to be—knowing that the action is forbidden by the law, and being capable of appreciating the reasons for which it is forbidden. We should say, for example, that in the case of murder, a man, in order to come within the definition, must know, not only that he may be hanged for what he is about to do-which, as in Hadfield's case, is sometimes the very ground of his conduct—but also that he is about to commit an act which will cause immense distress, and, if unpunished, a general feeling of insecurity, and further, one which, in the opinion of the makers of the law (for the criminal's private opinion is immaterial), is forbidden by the Sixth Commandment.
Although we think that the “doltish" jury did themselves credit by their verdict, and discharged their duty with discretion, we cannot say as much for the conduct of the presiding Judge, or of the counsel employed in the case. The Act which originally conferred the right of recording sentence of death in capital cases (4 Geo. IV. c.48) expressly excepted cases of murder; and though it seems, from comparing 6 and 7 Wm. IV. c.30 and the case of R. v. Hogg (2 M. & R. 380), that the power is now extended to all cases, the policy of maintaining the old practice is obvious from the consideration that, in cases where capital punishment is the rule instead of being the exception, the prerogative of commuting the sentence of death for that of transportation for life is of far too serious a nature to be left to the discretion of a single Judge, acting upon a few minutes’ consideration at the conclusion of a trial which has, in all probability, severely taxed both his mental and bodily powers. We therefore regret that Mr. Justice Wightman did not ass sentence in the usual manner, remitting the question as to the propriety of executing it to the usual authority. Every reason which makes it desirable that juries should be allowed to recommend prisoners to mercy on the ground of insanity makes it advisable that such a verdict should not be considered as equivalent to an acquittal on the ground of insanity. Such a verdict may be a reason why the Crown should be advised to commute the sentence; but it can be no reason why the Judge should not pronounce it. The course pursued by Mr. Justice Wightman would, if persisted in, introduce into England that most pernicious absurdity which unhappily prevails in France, of permitting a Jury to return a verdict of “ Guilty with extenuating circumstances," and of giving it not merely moral weight, but a definite legal consequence by way of mitigation of punishment. It is a very delicate question whether or not Westron ought to have been hanged, and quite distinct from the question whether he was a murderer. The jury determined the latter (very properly, we think) in the affirmative; and we also think they were quite right in suggesting that the Executive might do well to consider the former.
The whole doctrine of what is called “mercy" seems to us to stand greatly in need of revision. Mercy is only a branch of justice—justice suited to the peculiar circumstances of individual cases. It is at present administered by practically irresponsible and almost unknown judges, who decide, or, as they call it, “ advise the Crown," in an entirely informal manner, and without the restraint of any public proceedings whatever. The interests of the public would be much better protected if the right of petitioning for the remission of a sentence were so far restrained) as only to be allowed on the certificate of the Judge who presided at the trial. Moreover, it would be well if the petition were addressed, not to a gentleman (not necessarily a lawyer) sitting in a private room in the Home Office, but to some open Court, like the Judicial Committee of the Privy Council, before whom—at least in cases of life and death—the propriety of carrying the sentence into execution might be publicly debated, and who might deliver a regular judgment, setting forth the reasons which induced them to advise, or to decline to advise, the Crown to commute the sentence. Amongst other offensive absurdities to which such a system would put an end, would be that of petitions to spare a particular criminal's life on account of a general objection to capital punishments.
We have adverted to the conduct of the counsel engaged in Westron's case. We do not mean to find fault either with Mr. Ballantine or with Mr. Clarkson personally. No doubt they acted according to the usual rules of the profession in the course which they adopted; but that course—unnoticed by the Judge, and as yet passed over in silence by the public—was one which appears to us utterly subversive of the first ends of justice, and strikingly illustrative of the error which lies at the root of our administration of criminal justice. We refer to the circumstance that Mr. Gibson, the surgeon of Newgate, who had an opportunity of examining Westron, and who, we suppose, must have seen him repeatedly during his imprisonment, was not called as a witness; whilst Mr. Synnott, who was called, only saw the man once, and then, as he stated in the witness-box, for a shorter time than he should have considered desirable. To an unprofessional reader this seems simply unaccountable; but to a legal understanding the reason is obvious enough. Dr. Synnott attended Westron by the desire of the prisoner’s own friends, and his evidence of course appeared in Mr. Ballantine's brief. Mr. Gibson attended him officially, and probably would have considered it a breach of his official duty to communicate to the prisoner's attorney the o inion which he had formed on the question of his client's sanity. The counsel for the defence were not therefore in a position to put this gentleman into the witness-box, because they did not know what evidence he might give. Why, then, it may be asked, did not Mr. Clarkson call him? Because he did not wish to give Mr. Ballantine the right to reply. For this miserable reason, evidence, possibly of the greatest importance, in a case of life and death, was suppressed. Whether Westron was or was not to be hanged was treated as a question of quite secondary importance. Whether Mr. Clarkson or Mr. Ballantine was to get the verdict was considered a question of primary importance. If a man were not case-hardened by many years of Old Bailey practice, one would have thought that, where a poor wretch’s life was in the scale, all personal considerations of victory or defeat would vanish in the wish to use every possible means of enabling the jury to arrive at a just conclusion. Still the reader may ask, Why did not the Court call Mr. Gibson? The answer is to be found in the theory which reconciles almost all the apparent contradictions of English criminal justice—namely, that it is the prosecutor’s business to convict if he can; the prisoner's business to escape if he can; the judge's business to see fair play; and nobody’s business to arrive at the truth. No one who is not accustomed to see counsel fence for the right of reply—to hear the use which is made of the calling or not calling this or that witness-to watch the working of the rule as to not contradicting your own witness, of the rule which excludes all that is not said in the prisoner's presence, and of that which refuses to listen to hearsay evidence—would credit the extent to which this principle pervades our criminal justice. We do not believe that any man would fully appreciate it without having had an opportunity of seeing something of the way in which the rules of evidence are understood and practised in France.
One other point is suggested by this trial, which will, we fear, shortly come before the public in a case of far greater public interest—that of Palmer. We allude to the present practice of calling scientific witnesses. We feel very strongly that there is much to be said in favour of the English principle of leaving the whole evidence to the jury, as contrasted with the almost official value given by the law of some foreign States to the testimony of “experts." But the practice of calling scientific, and especially medical witnesses, as the witnesses, not of the Court, but of the party, is fast becoming equivalent to the employment of medical counsel. It would be easy to name three or four physicians who hold strong views on the question of the irresponsibility of madman, and who will come into the witness-box with the strongest possible prejudice in favour of or against the prisoner. It is not in human nature not to see, in each particular case, illustrations of a favourite theory, and it is hardly possible that gentlemen so situated should not, however honest they may be, leave totally false impressions upon the minds of juries. We deeply regret to see that Mr. Herapath has publicly circulated certain opinions as to the possibility of detecting particular poisons in the bodies of deceased persons, which are at variance with the opinions entertained by Dr. Taylor. If these gentlemen should be called as witnesses in Palmer's case, it would be almost impossible, after public contradictions of this kind having passed between them, that they should avoid a kind of polemical prepossession upon the subjects in question, which would materially affect the value of their evidence. We do not see how this evil is to be remedied, so long as witnesses of this description are brought into court at the expense of the parties, not in order to tell the truth and the whole truth, but to tell such parts of it as make for the party calling them. Though fully alive to the difficulties of such a course, we think it would be on the whole a wiser plan that, in scientific cases, witnesses should be appointed by a Judge’s order, made after hearing, the agents or counsel on both sides—that no others should be called — and that the expense should be paid by the public. There is very great room for the exertions of law reformers in this department of the law, if that genus irritum could contrive to concentrate their efforts on useful and attainable objects.
Saturday Review, February 16, 1856.