LORDS DECISIONSLORDS DECISIONS >>LORDS HAS A RIGHT TO REQUIRE THE JUDGES TO ANSWER ABSTRACT QUESTIONS OF EXISTING LAW (SEE LONDON AND WESTMINSTER BANK CASE, ANTE [2 CL. AND F.], P. 191 [AND NOTE THERETO].LORD CHIEF JUSTICE TINDAL (IN HIS CHARGE):-THE QUESTION TO BE DETERMINED IS, WHETHER AT THE TIME THE ACT IN QUESTION WAS COMMITTED, THE PRISONER HAD OR HAD NOT THE USE OF HIS UNDERSTANDING, SO AS TO KNOW THAT HE WAS DOING A WRONG OR WICKED ACT. IF THE JURORS SHOULD BE OF OPINION THAT THE PRISONER WAS NOT SENSIBLE, AT THE TIME HE COMMITTED IT, THAT HE WAS VIOLATING THE LAWS BOTH OF GOD AND MAN, THEN HE WOULD BE ENTITLED TO A VERDICT IN HIS FAVOUR: BUT IF, ON THE CONTRARY, THEY WERE OF OPINION THAT WHEN HE COMMITTED THE ACT HE WAS IN. A SOUND STATE OF MIND, THEN THEIR VERDICT MUST BE AGAINST HIM.LORDS (THE 6TH AND 13TH MARCH 1843; SEE HANSARD'S DEBATES, VOL. 67, PP. 288, 714), IT WAS DETERMINED TO TAKE THE OPINION OF THE JUDGES ON THE LAW GOVERNING SUCH CASES. ACCORDINGLY, ON. THE 26TH OF MAY, ALL THE JUDGES ATTENDED THEIR LORDSHIPS, BUT.NO QUESTIONS WERE THEN PUT.LORDS; WHEN (NO ARGUMENT HAVING BEEN [203] HAD) THE FOLLOWING QUESTIONS OF LAW WERE PROPOUNDED TO THEM:--JUSTICE MAULE:--I FEEL GREAT DIFFICULTY IN ANSWERING THE QUESTIONS PUT BY YOUR LORDSHIPS ON THIS OCCASION:-FIRST, BECAUSE THEY DO NOT APPEAR TO ARISE OUT OF AND ARE NOT PUT WITH REFERENCE TO A PARTICULAR CASE, OR FOR A PARTICULAR PURPOSE, WHICH MIGHT EXPLAIN OR LIMIT THE GENERALITY OF THEIR TERMS, SO THAT FULL ANSWERS TO THEM OUGHT TO BE APPLICABLE TO EVERY POSSIBLE STATE OF FACTS, NOT INCONSISTENT WITH THOSE ASSUMED IN THE QUESTIONS: THIS DIFFICULTY IS THE GREATER, FROM THE PRACTICAL EXPERIENCE BOTH OF THE BAR AND THE COURT BEING CONFINED TO QUESTIONS ARISING OUT OF THE FACTS OF PARTICULAR CASES:-SECONDLY, BECAUSE I HAVE HEARD NO ARGUMENT AT YOUR LORDSHIPS' BAR OR ELSEWHERE, ON THE SUBJECT OF THESE QUESTIONS; THE WANT OF WHICH I FEEL THE MORE, THE GREATER ARE THE NUMBER AND EXTENT OF QUESTIONS WHICH MIGHT BE RAISED IN. ARGUMENT:-AND THIRDLY, FROM A FEAR OF WHICH I CANNOT DIVEST MYSELF, THAT AS THESE QUESTIONS RELATE TO MATTERS OF CRIMINAL LAW OF GREAT IMPORTANCE AND FREQUENT OCCURRENCE, THE ANSWERS TO THEM BY THE JUDGES MAY EMBARRASS THE ADMINISTRATION OF JUSTICE, WHEN THEY ARE CITED IN CRIMINAL TRIALS. FOR THESE REASONS I SHOULD HAVE BEEN GLAD IF MY LEARNED BRETHREN WOULD HAVE JOINED ME IN PRAYING YOUR LORDSHIPS TO EXCUSE US FROM ANSWERING THESE QUESTIONS; BUT AS I DO NOT THINK THEY OUGHT TO' INDUCE ME TO ASK THAT INDULGENCE FOR MYSELF INDIVIDUALLY, I SHALL PROCEED TO GIVE SUCH ANSWERS AS I CAN, AFTER THE VERY SHORT TIME WHICH I HAVE HAD TO CONSIDER THE QUESTIONS, AND UNDER THE DIFFICULTIES I HAVE MENTIONED; FEARING THAT MY ANSWERS MAY BE AS LITTLE SATISFACTORY TO OTHERS AS THEY ARE TO MYSELF.LORD CHIEF JUSTICE, MR. JUSTICE WILLIAMS, AND MR. JUSTICE COLERIDGE, IN WHICH COUNSEL OF THE HIGHEST EMINENCE WERE ENGAGED ON BOTH SIDES; AND I THINK THE COURSE AND PRACTICE OF RECEIVING SUCH EVIDENCE, CONFIRMED BY THE VERY HIGH AUTHORITY OF THESE JUDGES, WHO NOT ONLY RECEIVED IT, BUT LEFT IT, AS I UNDERSTAND, TO THE JURY, WITHOUT ANY REMARK DEROGATING FROM ITS [208] WEIGHT, OUGHT TO BE HELD TO WARRANT ITS RECEPTION, NOTWITHSTANDING THE OBJECTION IN PRINCIPLE TO WHICH IT MAY BE OPEN. IN CASES EVEN WHERE THE COURSE OF PRACTICE IN CRIMINAL LAW HAS BEEN UNFAVOURABLE TO PARTIES ACCUSED, AND ENTIRELY CONTRARY TO THE MOST OBVIOUS PRINCIPLES OF JUSTICE AND HUMANITY, AS WELL AS THOSE OF LAW, IT HAS BEEN HELD THAT SUCH PRACTICE CONSTITUTED THE LAW, AND COULD NOT BE ALTERED WITHOUT THE AUTHORITY OF PARLIAMENT.LORD CHIEF JUSTICE TINDAL:-MY LORDS, HER MAJESTY'S JUDGES (WITH THE EXCEPTION OF MR. JUSTICE MAULE, WHO HAS STATED HIS. OPINION TO YOUR LORDSHIPS), IN ANSWERING THE QUESTIONS PROPOSED TO THEM BY YOUR LORDSHIPS' HOUSE, THINK IT RIGHT, IN THE FIRST PLACE, TO STATE THAT THEY HAVE FORBORNE ENTERING INTO ANY PARTICULAR DISCUSSION UPON THESE QUESTIONS, FROM THE EXTREME AND ALMOST INSUPERABLE DIFFICULTY OF APPLYING THOSE ANSWERS TO CASES IN WHICH THE FACTS ARE NOT BROUGHT JUDICIALLY BEFORE THEM. THE FACTS OF EACH PARTICULAR CASE MUST OF NECESSITY PRESENT THEMSELVES WITH ENDLESS VARIETY, AND WITH EVERY SHADE OF DIFFERENCE IN EACH CASE; AND AS IT IS THEIR DUTY TO DECLARE THE LAW UPON EACH PARTICULAR CASE, ON FACTS PROVED BEFORE THEM, AND AFTER HEARING ARGUMENT OF COUNSEL THEREON, THEY DEEM IT AT ONCE IMPRACTICABLE, AND AT THE SAME TIME DANGEROUS TO THE ADMINISTRATION OF JUSTICE, IF IT WERE PRACTICABLE, TO ATTEMPT TO MAKE NINUTE APPLICATIONS OF THE PRINCIPLES INVOLVED IN THE ANSWERS GIVEN BY THEM TO YOUR LORDSHIPS' QUESTIONS.LORDSHIPS; AND AS THEY DEEM IT UNNECESSARY, IN THIS PECULIAR CASE, TO DELIVER THEIR OPINIONS.SERIATIM, AND AS ALL CONCUR IN [209] THE SAME OPINION, THEY DESIRE ME TO EXPRESS SUCH THEIR UNANIMOUS OPINION TO YOUR LORDSHIPS.LORDSHIPS IS THIS: " WHAT IS THE LAW RESPECTING ALLEGED CRIMES COMMITTED BY PERSONS AFFLICTED WITH INSANE DELUSION IN RESPECT OF ONE OR MORE PARTICULAR SUBJECTS OR PERSONS: AS, FOR INSTANCE, WHERE AT THE TIME OF THE COMMISSION OF THE ALLEGED CRIME THE ACCUSED KNEW HE WAS ACTING CONTRARY TO LAW, BUT DID THE ACT COMPLAINED OF WITH A VIEW, UNDER THE INFLUENCE OF INSANE DELUSION, OF REDRESSING OR REVENGING SOME SUPPOSED GRIEVANCE OR INJURY, OR OF PRODUCING SOME SUPPOSED PUBLIC BENEFIT?"LORDSHIPS' INQUIRIES ARE CONFINED TO THOSE PERSONS WHO, LABOUR UNDER SUCH PARTIAL DELUSIONS ONLY, AND ARE NOT IN OTHER RESPECTS INSANE, WE ARE OF OPINION THAT, NOTWITHSTANDING THE PARTY ACCUSED DID THE ACT COMPLAINED OF WITH A VIEW, UNDER THE INFLUENCE OF INSANE DELUSION, OF REDRESSING OR REVENGING SOME SUPPOSED GRIEVANCE OR INJURY, OR OF PRODUCING SOME PUBLIC BENEFIT, HE IS NEVERTHELESS PUNISHABLE ACCORDING TO THE NATURE OF THE CRIME COMMITTED, IF HE KNEW AT THE TIME OF COMMITTING SUCH CRIME THAT HE WAS ACTING CONTRARY TO LAW; BY WHICH EXPRESSION WE UNDERSTAND YOUR LORDSHIPS TO MEAN THE LAW OF THE LAND.LORDSHIPS ARE PLEASED TO. INQUIRE OF US, SECONDLY, " WHAT ARE THE PROPER QUESTIONS TO BE SUBMITTED TO THE JURY, WHERE' A PERSON ALLEGED TO BE AFFLICTED WITH INSANE DELUSION RESPECTING ONE OR MORE PARTICULAR SUBJECTS OR PERSONS, IS CHARGED WITH THE COMMISSION OF A CRIME (MURDER, FOR EXAMPLE), AND INSANITY IS SET UP AS A DEFENCE? " AND, THIRDLY, "IN WHAT TERMS OUGHT THE QUESTION TO BE LEFT TO THE JURY AS TO THE PRISONER'S STATE OF MIND AT THE TIME WHEN [210] THE ACT WAS COMMITTED " AND AS THESE TWO QUESTIONS APPEAR TO US TO BE MORE CONVENIENTLY ANSWERED TOGETHER, WE HAVE TO SUBMIT OUR OPINION TO BE, THAT THE JURORS OUGHT TO BE TOLD IN ALL CASES THAT EVERY MAN IS TO BE PRESUMED TO BE SANE, AND TO POSSESS A SUFFICIENT DEGREE OF REASON TO BE RESPONSIBLE FOR HIS CRIMES,UNTIL THE CONTRARY BE PROVED TO THEIR SATISFACTION; AND THAT TO ESTABLISH A DEFENCE ON THE GROUND OF INSANITY, IT MUST BE CLEARLY PROVED THAT, AT THE TIME OF THE COMMITTING OF THE ACT, THE PARTY ACCUSED WAS LABOURING UNDER SUCH A DEFECT OF REASON, FROM DISEASE OF THE MIND, AS NOT TO KNOW THE NATURE AND QUALITY OF THE ACT HE WAS DOING; OR, IF HE DID KNOW IT, THAT HE DID NOT KNOW HE WAS DOING WHAT WAS WRONG. THE MODE OF PUTTING THE LATTER PART OF THE QUESTION TO THE JURY ON THESE OCCASIONS HAS GENERALLY BEEN, WHETHER THE ACCUSED AT THE TIME OF DOING THE ACT KNEW THE DIFFERENCE BETWEEN, RIGHT AND WRONG: WHICH MODE, THOUGH RARELY; IF EVER, LEADING TO ANY MISTAKE WITH THE JURY, IS NOT, AS WE CONCEIVE, SO ACCURATE WHEN PUT. GENERALLY AND IN THE ABSTRACT, AS WHEN PUT WITH REFERENCE TO THE PARTY'S KNOWLEDGE OF RIGHT AND WRONG IN RESPECT TO THE VERY ACT WITH WHICH HE IS CHARGED. IF THE QUESTION WERE TO BE PUT AS TO THE KNOWLEDGE OF THE ACCUSED SOLELY AND EXCLUSIVELY WITH REFERENCE TO THE LAW OF THE LAND, IT MIGHT TEND TO CONFOUND THE JURY, BY INDUCING THEM TO BELIEVE THAT AN ACTUAL KNOWLEDGE OF THE LAW OF THE LAND WAS ESSENTIAL IN ORDER TO LEAD TO A CONVICTION; WHEREAS THE LAW IS ADMINISTERED UPON THE PRINCIPLE THAT EVERY ONE MUST BE TAKEN CONCLUSIVELY TO KNOW IT, WITHOUT PROOF THAT HE DOES KNOW IT. IF THE ACCUSED WAS CONSCIOUS THAT THE ACT WAS ONE WHICH HE OUGHT NOT TO DO, AND IF THAT ACT WAS AT THE SAME TIME CONTRARY TO THE LAW OF THE LAND, HE IS PUNISHABLE; AND THE USUAL COURSE THEREFORE [211] HAS BEEN TO LEAVE THE QUESTION TO THE JURY, WHETHER THE PARTY ACCUSED HAD A SUFFICIENT DEGREE OF REASON TO KNOW THAT HE WAS DOING AN ACT THAT WAS WRONG: AND THIS COURSE WE THINK IS CORRECT, ACCOMPANIED WITH SUCH OBSERVATIONS AND EXPLANATIONS AS THE CIRCUMSTANCES OF EACH PARTICULAR CASE MAY REQUIRE.LORDSHIPS HAVE PROPOSED TO US IS THIS:-"IF A PERSON UNDER AN INSANE DELUSION AS TO EXISTING FACTS, COMMITS AN OFFENCE IN CONSEQUENCE THEREOF, IS HE THEREBY EXCUSED?" TO WHICH QUESTION THE ANSWER MUST OF COURSE DEPEND ON THE NATURE OF THE DELUSION: BUT, MAKING THE SAME ASSUMPTION AS WE DID BEFORE, NAMELY, THAT HE LABOURS UNDER SUCH PARTIAL DELUSION ONLY, AND IS NOT IN OTHER RESPECTS INSANE, WE THINK HE MUST BE CONSIDERED IN THE SAME SITUATION AS TO RESPONSIBILITY AS IF THE FACTS WITH RESPECT TO WHICH THE DELUSION EXISTS WERE REAL. FOR EXAMPLE, IF UNDER THE INFLUENCE OF HIS DELUSION HE SUPPOSES ANOTHER MAN TO BE IN THE ACT OF ATTEMPTING TO TAKE AWAY HIS LIFE, AND HE KILLS THAT MAN, AS HE SUPPOSES, IN SELF-DEFENCE, HE WOULD BE EXEMPT FROM PUNISHMENT. IF HIS DELUSION WAS THAT THE DECEASED HAD INFLICTED A SERIOUS INJURY TO HIS CHARACTER AND FORTUNE, AND HE KILLED HIM IN REVENGE FOR SUCH SUPPOSED INJURY, HE WOULD BE LIABLE TO PUNISHMENT.LORDSHIPS IS:-" CAN A MEDICAL MAN CONVERSANT WITH THE DISEASE OF INSANITY, WHO NEVER SAW THE PRISONER PREVIOUSLY TO THE TRIAL, BUT WHO WAS PRESENT DURING THE WHOLE TRIAL AND THE EXAMINATION OF ALL THE WITNESSES, BE ASKED HIS OPINION AS TO THE STATE OF THE PRISONER'S MIND AT THE TIME OF THE COMMISSION OF THE ALLEGED CRIME, OR HIS OPINION WHETHER THE PRISONER WAS CONSCIOUS AT THE TIME OF DOING THE ACT THAT HE WAS ACTING CONTRARY TO. LAW, OR WHETHER HE WAS LABOURING UNDER ANY AND [212] WHAT DELUSION AT THE TIME?" IN ANSWER THERETO, WE STATE TO YOUR LORDSHIPS, THAT WE THINK THE MEDICAL MAN, UNDER THE CIRCUMSTANCES SUPPOSED, CANNOT IN STRICTNESS BE ASKED HIS OPINION IN THE TERMS ABOVE STATED, BECAUSE EACH OF THOSE QUESTIONS INVOLVES THE DETERMINATION OF THE TRUTH OF THE FACTS DEPOSED TO, WHICH IT IS FOR THE JURY TO DECIDE, AND THE QUESTIONS ARE NOT MERE QUESTIONS UPON A MATTER OF SCIENCE, IN WHICH CASE SUCH. EVIDENCE IS ADMISSIBLE. BUT WHERE THE FACTS ARE ADMITTED OR NOT DISPUTED, AND THE QUESTION BECOMES SUBSTANTIALLY ONE OF SCIENCE ONLY, IT MAY BE CONVENIENT TO ALLOW THE QUESTION TO BE PUT IN THAT GENERAL FORM, THOUGH THE SAME CANNOT BE INSISTED ON AS A MATTER OF RIGHT.LORD BROUGHAM:-MY LORDS, THE OPINIONS OF THE LEARNED JUDGES, AND THE VERY ABLE MANNER IN WHICH THEY HAVE BEEN PRESENTED TO THE HOUSE, DESERVE OUR BEST THANKS. ONE OF THE LEARNED JUDGES HAS EXPRESSED HIS REGRET THAT THESE QUESTIONS WERE NOT ARGUED BY COUNSEL. GENERALLY SPEAKING, IT IS MOST IMPORTANT THAT IN QUESTIONS PUT FOR THE CONSIDERATION OF THE JUDGES, THEY SHOULD HAVE ALL THAT ASSISTANCE WHICH IS AFFORDED TO THEM BY AN ARGUMENT BY COUNSEL: BUT AT THE SAME TIME, THERE CAN BE NO DOUBT OF YOUR LORDSHIPS' RIGHT TO PUT, IN THIS WAY, ABSTRACT QUESTIONS OF LAW TO THE JUDGES,.THE ANSWER TO WHICH MIGHT BE NECESSARY TO YOUR LORDSHIPS IN YOUR LEGISLATIVE CAPACITY. THERE IS A PRECEDENT FOR THIS COURSE, IN THE MEMORABLE INSTANCE OF MR. FOX'S BILL ON THE LAW OF LIBEL; WHERE, BEFORE PASSING THE BILL, THIS HOUSE CALLED ON THE JUDGES TO GIVE THEIR OPINIONS ON WHAT WAS THE LAW AS IT THEN EXISTED.LORD CAMPBELL:-MY LORDS, I CANNOT AVOID EXPRESS[213]-ING MY SATISFACTION, THAT THE NOBLE AND LEARNED LORD ON THE WOOLSACK CARRIED INTO EFFECT HIS DESIRE TO PUT THESE QUESTIONS TO THE JUDGES. IT WAS MOST FIT THAT THE OPINIONS OF THE JUDGES SHOULD BE ASKED ON THESE MATTERS, THE SETTLING OF WHICH IS NOT A MERE MATTER OF SPECULATION; FOR YOUR LORDSHIPS MAY BE CALLED ON, IN YOUR LEGISLATIVE CAPACITY, TO CHANGE THE LAW; AND BEFORE DOING SO, IT IS PROPER THAT YOU SHOULD BE SATISFIED BEYOND DOUBT WHAT THE LAW REALLY IS. IT IS DESIRABLE TO HAVE SUCH QUESTIONS ARGUED AT THE BAR, BUT SUCH A COURSE IS NOT ALWAYS PRACTICABLE. YOUR LORDSHIPS HAVE BEEN REMINDED OF ONE PRECEDENT FOR THIS PROCEEDING, BUT THERE IS A STILL MORE RECENT INSTANCE; THE JUDGES HAVING BEEN SUMMONED IN THE CASE OF THE CANADA RESERVES, TO EXPRESS THEIR OPINIONS ON WHAT WAS THEN THE LAW ON THAT SUBJECT. THE ANSWERS GIVEN BY THE JUDGES ARE MOST HIGHLY SATISFACTORY, AND WILL BE OF THE GREATEST USE IN THE ADMINISTRATION OF JUSTICE.LORD COTTENHAM:-MY LORDS, I FULLY CONCUR WITH THE OPINION NOW EXPRESSED, AS' TO THE OBLIGATIONS WE OWE TO THE JUDGES. IT IS TRUE THAT THEY CANNOT BE REQUIRED TO SAY WHAT WOULD BE THE CONSTRUCTION OF A BILL, NOT IN EXISTENCE AS A LAW AT THE MOMENT AT WHICH THE QUESTION IS PUT TO THEM; BUT THEY MAY BE CALLED ON TO ASSIST YOUR LORDSHIPS, IN DECLARING THEIR OPINIONS UPON ABSTRACT QUESTIONS OF EXISTING LAW.LORD WYNFORD:-MY LORDS, I NEVER DOUBTED THAT YOUR LORDSHIPS POSSESS THE POWER TO CALL ON THE JUDGES TO GIVE THEIR OPINIONS UPON QUESTIONS OF EXISTING LAW, PROPOSED TO THEM AS THESE QUESTIONS HAVE BEEN. I MYSELF RECOLLECT, THAT WHEN I HAD THE HONOUR TO HOLD THE OFFICE OF LORD CHIEF JUSTICE OF THE COURT OF [214] COMMON PLEAS, I COMMUNICATED TO THE HOUSE THE OPINIONS OF THE JUDGES ON QUESTIONS OF THIS SORT, FRAMED WITH REFERENCE TO THE USURY LAWS. UPON THE OPINION OF THE JUDGES THUS DELIVERED TO THE HOUSE BY ME, A BILL WAS FOUNDED, AND AFTERWARDS PASSED INTO, A LAW.LORD CHANCELLOR:-MY LORDS, I ENTIRELY CONCUR IN THE OPINION GIVEN BY MY NOBLE AND LEARNED FRIENDS, AS TO OUR RIGHT TO. HAVE THE OPINIONS OF THE JUDGES ON ABSTRACT QUESTIONS OF EXISTING LAW; AND I.-AGREE THAT WE OWE OUR THANKS TO THE JUDGES, FOR THE ATTENTION AND LEARNING WITH WHICH THEY HAVE ANSWERED THE QUESTIONS NOW PUT TO THEM.