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"in his mind, and then he cannot control it. This is moral insanity. It does apply to other cases: it might apply to rape; as, if a man nourished the desire to possess a particular woman till the desire became uncontrollable, and then he "committed the rape, that would be moral insanity. So of "theft. If a man permits himself to contemplate the grati"fication of any passion or desire till it becomes uncontrol"lable, that is moral insanity." On re-examination, he gave the following evidence:-"1 Q. Suppose the man had from his "childhood been excitable, used fire-arms when no danger, "threatened to shoot his father and mother, complained of "sounds in his house, and the other things proved by wit

nesses yesterday, treating his wife kindly and weeping? "A. I have no doubt that man is insane, and not fit to be "trusted abroad. I would have certified him a lunatic before "the fatal week."

The jury returned the following verdict:-"Guilty, but we "recommend him to mercy on the ground of his defective "intellect." He was sentenced to death, and executed at York in pursuance of his sentence.

I have entered minutely into the details of this case, because it furnishes a perfect illustration of the state of mind which Erskine alluded to, though it was unnecessary for him to discuss it minutely, in his celebrated speech on the trial of Hadfield. It is impossible to resist the conclusion, which the evidence given above suggests, that Dove was not a sane man. It is equally impossible to doubt that he wilfully, maliciously, and of his malice aforethought, in the full and proper sense of those words, murdered his wife. The result of the whole history appears to be, that he was from

1 Verbatim from the Notes.

2 "You will have to decide whether you attribute it wholly to mischief "and malice, or wholly to insanity or to the one mixing itself with the other." If you consider it as conscious malice and mischief mixing itself with "insanity, I leave him in the hands of the court to say how he is to be dealt "with. It is a question too difficult for me."-27 State Trials, 1328. This remark is characteristic of Erskine. The great logical capacity, which was one of the principal characteristics of his mind, led him to say that malice and insanity might mix. His excessive caution as an advocate admonished him to point to the difficulty and leave it on one side, but I know of nothing in his speeches or writings to lead to the supposition that he could have done much towards solving it had he tried.

infancy predisposed (to say the least) to madness; that TRIALS. symptoms indicating that disease displayed themselves at frequent intervals through the whole course of his life, but that they never reached such a pitch as to induce those about him to treat him as a madman. He was allowed to go by himself to America, to occupy and manage a farm, to marry, though his wife's brother was warned of his character, to live on his means without interference at Leeds, and generally to conduct himself as a sane person. This being so, he appears to have allowed his mind to dwell with a horrible prurience on the prospect of his wife's death and of his own marriage to another person, to have formed the design of putting her to death, and to have carried out that design with every mark of deliberate contrivance and precaution. In this state of things, can he be said to have known, in the wider sense of the words, that his act was wrong? He obviously knew that the act was wrong in the sense that people in general would so consider it; but was he capable of thinking like an ordinary man of the reasons why murder is wrong, and of applying those reasons to his conduct?

On

Undoubtedly there was evidence both ways. Looking at the whole account of his life, it cannot be denied that his language and conduct appear at times to have been inconsecutive, capricious, and not capable of being accounted for on any common principles of action. His lying down on the ground to cry, his wandering in the fields, the noises he supposed himself to hear, are all strong illustrations. the other hand, this was only an occasional state of things. He appears to have acted, as a rule, rationally enough, and to have transacted all the common affairs of life. Did, then, this killing of his wife belong to the rational or to the irrational part of his conduct? Every circumstance connected with it referred it to the former. Its circumstances presented every conceivable mark of motive and design. It was a continued series of deliberate and repeated attempts, fully accomplished at last.

The suggestion of Dr. Williams, that Dove had allowed his mind to dwell on his wife's death till at last he became the victim of an uncontrollable propensity to kill her, if correct,

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would not prove that his act was not voluntary. It is the setting and keeping the mind in motion towards an object plainly conceived that constitutes the mental part of an act. Every act becomes irrevocable by the agent before it is consummated. If a man, for example, strikes another, he may repent while his arm is actually falling, but there is a point at which he can no more deprive his arm of the impetus with which he has animated it than he can divert from its course a bullet which he had fired from a rifle. Suppose he deals with his mind in this manner at an earlier stage of the proceeding, and so fills himself with a passionate, intense longing for the forbidden object, or result, that he becomes as it were a mere machine in his own hands. Is not the case precisely similar, and does not the action continue to be voluntary and wilful, although the act of volition which made it irrevocable preceded its completion by a longer interval than usual?

It must, however, be remembered that the proof that Dove's propensity was uncontrollable is very defective. An uncontrollable propensity which accidental difficulties, or the fear of detection, constantly control and divert for a time, is an inconceivable state of mind. Is there the smallest reason to suppose that, if Mrs. Dove had met with a fatal accident, and had been lying in bed dying before her husband gave her any poison at all, his uncontrollable propensity to kill her would have induced him to administer the poison nevertheless? If not, the propensity was like any other wicked feeling. It was certainly uncontrolled, and may probably have been strong, but that is different from being uncontrollable.

It is easy, no doubt, to imagine circumstances which would have justified the jury in returning a different verdict. If Dove had always treated his wife kindly, and lived on good terms with her, and if he had killed her in a sudden, unaccountable fury, the evidence as to the state of his mind would, no doubt, have suggested the conclusion that the act was not part of the regular and ordinary course of his life; that it was not planned, settled, and executed as rational men carry out their purposes, but that it was one of those occurrences which rebut the presumption of will or malice on the

part of the agent, and was, therefore, not within the province TRIALS. of the criminal law. This conclusion might have been rendered more or less probable by an infinite variety of collateral circumstances. Concealment, for example, would have diminished its probability. Openness would have increased it, and so would independent traces of excitement. Probably, if the suggestion made in an earlier part of this work were adopted, and if another case like Dove's occurred, the jury might find a verdict of "Guilty, but his powers of "self-control were weakened by disease." An acquittal on the ground of insanity would, I think, have been wrong.

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1 THE CASE OF THOMAS SMETHURST.

THOMAS SMETHURST was indicted for the wilful murder of Isabella Bankes at the Old Bailey Sessions, on the 7th July, 1859. After the case had proceeded for a considerable time, one of the jury was taken ill, and the court adjourned till Monday, the 15th August. A trial, which occupied four days before the Lord Chief Baron of the Exchequer, then took place; the prisoner was convicted and sentenced to death, but he subsequently received a free pardon on the ground that his guilt had not been sufficiently proved.

Smethurst, who had been for many years married to a person much older than himself, was living with his wife, in November, 1858, at a boarding-house in Bayswater, where he became acquainted with Miss Bankes, the deceased. On the 9th of December he went through the ceremony of marriage with her, and they went to live together at Richmond, Smethurst's real wife being left at the boarding-house at Bayswater. There he visited her once or twice after he left, and he also transmitted money on her account to the mistress of the house. There was no evidence to show that Mrs. Smethurst was aware of the relations between her husband and Miss Bankes, though it is hardly possible that her suspicions should not have been roused by their leaving the house

1 This account is founded on the notes of Lord Chief Baron Pollock, who was kind enough to lend them to me for that purpose, and also to give me a copy of his communication to Sir G. C. Lewis on the subject. The quotations of the evidence are taken from the Lord Chief Baron's notes. I have compared the Report in the 50th Volume of the Old Bailey Sessions Papers, and the references are to the pages of that volume.