A 
CHARGE 
TO THE 
GRAND JURY OF THE COUNTY OF SUFFOLK, 
FOR THE 
COMMONWEALTH OF MASSACHUSETTS, 
AT THE 
OPENING OF THE MUNICIPAL COURT OF THE CITY OF BOSTON, 
ON MONDAY, DECEMBER 7, A. D. 1835, 
BEING THE DAY, ON WHICH THE COURT FIRST ASSEMBLED 
IN THE 
NEW COURT HOUSE, COURT STREET. 
By PETER OXENBRIDGE THACHER, 
Judge of that Court. 
Boston: 
DUTTON AND WENTWORTH, PRINTERS, 
Nos. 10 & 12, Exchange Street. 
1835. At a meeting of the Grand Jury for the County of Suffolk, December 
7th, 1835 — 
Voted unanimously, That the Hon. Judge Thacher be requested to furnish 
the Grand Jury with a copy of his Charge, given to them this day, to be published 
for their benefit, and that of their fellow citizens. 
J. P. TOWNSEND, 
Foreman of the Grand Jury. 
Attest, 
Geo. P. Thomas, 
l'Secretary. The historical part of the following address was collected from ancient records, 
which are in a very decayed, and somewhat neglected state, and fast losing their 
interest and value. The occasion presented a fit opportunity to exhibit the facts 
to the public. In speaking of the munificent spirit of the present age, it was both 
natural and just to refer to the liberality of former times. 
The writer had lately seen some remarks on that part of medical jurisprudence, 
which relates to mental alienation, in which, he thought, that the writer had be- 
trayed some ignorance of the spirit of the criminal law on that subject. This cir- 
cumstance, as well as recent trials in the Municipal Court, led to the attempt, to 
state, with some fulness and accuracy, the law on individual accountability and 
guilt in criminal cases. The favorable opinion of the Grand Jury and their request, 
have given to the writer an opportunity to submit his views to the candid judgment 
of the profession. 
NOTE. A CHARGE. 
GENTLEMEN: — 
Assembled for the first time in this splendid edi- 
fice, which has been erected by public munificence 
for the accommodation of the courts of justice ; you 
will permit me to congratulate you upon the occa- 
sion. The many spacious structures for domestic 
habitation and commercial use, which adorn our 
city, are proof of individual and general wealth. A 
building which is dedicated to the administration of 
the public justice, should combine grandeur with 
convenience, and be calculated by its magnificence 
to impress the beholder with reverence for the laws. 
Nor is this inconsistent with the spirit of republican 
institutions. “In the Commonwealths of Greece and 
“Rome,” says the elegant historian, “the modest 
“ simplicity of private houses announced the equal 
“ condition of freedom ; while the sovereignty of the 
“people was represented in the majestic edifices 
“ designed for the public use. Nor was this repub- 6 
“ lican spirit totally extinguished by the introduction 
“ of wealth and monarchy/’* To the eye of intelli- 
gence what can be more pleasing than communities 
of men living together in peace, and practicing truth 
and justice ? Truth is the natural language of man 
in a state of innocence. Justice is the first duty 
which the state owes to its citizens, and which it 
should require them to practise among themselves. 
It is the very element of social order, without which 
the body politic cannot subsist. Nations have usu- 
ally acted on the principle, that good laws flow from 
good morals, and that virtue is the fruit of religious 
culture. Indeed, history is full of proof, that when 
a reverence for religion is lost, the love of virtue is 
seldom retained. Men have therefore, in every age, 
erected costly temples to the Supreme Being, where 
they might assemble, by common consent, to revere 
his power, to invoke his presence, to appease his 
displeasure, and to cultivate among themselves those 
social and personal virtues, which they deemed most 
likely to secure his approbation. Feeling that the 
generations of men were mortal, they yet wished, 
that the state itself should be immortal, and that 
their posterity might flourish under the divine pro- 
tection. 
* 1 Gibbon’s Decline and Fall of the Roman Empire, 74. 7 
Our community has ever reverenced the laws as 
the best guardians of the rights and liberties of a free 
state. At an early period, the inhabitants of Bos- 
ton, few in numbers and straitened in means, pro- 
vided for the honorable administration of justice. In 
the year 1657, they built by subscription a house, 
upon the spot where the City Hall now stands, which 
was used by the respective governments of the Col- 
ony, the County, and the Town. In the year 1660, 
the Town offered to the General Court the use of 
that building for legislative and other purposes of the 
government, praying at the same time, that, in con- 
sideration thereof, the court would remit the propor- 
tion of the colony tax, to which the town would be 
liable for one year. The court accepted the offer, 
and remitted the tax, but on the further condition, 
that the county of Suffolk should have the privilege 
of using the house for the sessions of its courts of 
justice. One half of the expense of keeping that 
building in repair, was paid by the Colony, one 
quarter by the County, and one quarter by the 
Town,—which proportion was, in the year 1693, 
established by law. 
After the conflagration in the year 1711, in which 
the Old Town House was consumed, the Province 
designated the site of that building for a new State 8 
House. Accordingly, a house, of which the walls 
of the present City Hall are part, was built at the 
expense of the Province, the County, and the Town, 
in the proportion which was established by the act 
of 1693. That house was partly consumed by fire 
in the year 1747, and was repaired by the same 
parties. In consequence, however, of the erection 
of Faneuil Hall, five years before, in which all mu- 
nicipal affairs were then transacted, the town had no 
further use for the State House, and remonstrated 
against their proportion of the burden. The General 
Court continued to occupy this building for their 
sessions, till the removal of the government to the 
State House on Beacon street, in the year 1798.* 
I have gleaned these facts from ancient records of 
the Commonwealth, the County, and the Town, which 
were used in the trial of the controversy between 
the Commonwealth and the Town, respecting the 
right to the soil and building of the Old State House. 
It arose on a petition for Partition, presented by the 
Commonwealth, and was tried before the Supreme 
* The corner stone of the New State House was laid on the fourth day of July, 
A. D. 1795, by the celebrated Samuel Adams, who was at the time Governor of 
the Commonwealth. On the eleventh of January, A. D. 1798, the several branches 
of the General Court marched in procession from the old State House to the new 
building, when, after a dedicatory prayer by the Rev. Peter Thacher, D. D. their 
Chaplain, they first took possession. 9 
Judicial Court, in this County, in the year 1801. 
The County of Norfolk, which was, prior to the di- 
vision, on the 26th of March, 1793, a part of the 
County of Suffolk, appeared by their attorney, the 
celebrated Fisher Ames, and claimed to be seized 
and entitled to a proportional part of the demanded 
premises. But this claim being considered by the 
court merely in aid of that of the Commonwealth, 
was not permitted to be prosecuted. The court con- 
sisted at that time of seven Justices. Two of them, 
Dana, the Chief Justice, and Sewall, expressed, in 
their addresses to the jury, opinions favorable to the 
right of the town ; Bradbury and Strong instructed 
the jury that, in their opinion, the claim of the Com- 
monwealth was preferable ; Thatcher did not ex- 
press any opinion; and Paine and Dawes, being 
citizens of Boston, did not sit in the trial. The jury 
returned a verdict, “ that the Commonwealth had 
“no right to the soil, but were entitled to one half 
“of the building for the purposes for which it was 
“ erected.” As this verdict did not settle the ques- 
tion, which was involved in the issue ; the case was 
afterwards, by agreement, referred to Oliver Wol- 
cott, of Connecticut, Benjamin Bourne, of Rhode 
Island, and Jeremiah Smith, of New Hampshire, 
three of the Circuit Judges, under the memorable 10 
act of Congress, passed on the 13th of February, 
1801, for the organization of the courts of the Unit- 
ed States. The parties were heard in the Senate 
Chamber of the New State House, and the report of 
the referees was accepted at the August term of the 
Supreme Court in the year 1802.* The controversy 
was settled on principles of equity, and the report 
was satisfactory to both parties. The Common- 
* Report of the Referees. <~The Commonwealth of Massachusetts, by James 
Sullivan, Esq. Attorney General, vs the Selectmen of the Town of Boston. 
The Referees having fully heard the parties, their evidence, and the pleas and 
arguments of their learned counsel, report, that the said Commonwealth is not seized 
of any undivided part of the land, whereof partition is prayed for. 
The Referees do further report and award, that the said Commonwealth hath a 
right to use and occupy the building in the said petition mentioned and described, 
for the purpose of holding the sessions of the Governor and Council, and the General 
Court of the said Commonwealth; and that certain bodies corporate have other 
rights and uses in the same building in such form and manner to be enjoyed, that the 
said building is not partible in the common and ordinary mode. 
At the request of the said parties, and adopting their construction of the powers of 
the referees, under this rule, the referees do further award, that the Commonwealth, 
contributing to the necessary repairs of the said building, is entitled to receive one 
half of the rents or income of the same. And whenever all the parties interested in 
the said building shall agree to dispose of the same, that the said Commonwealth is 
entitled to one half of the proceeds of sale. 
The referees further award, that the costs be borne equally by the parties to this 
rule. OLIVER WOLCOTT, 
BENJ. BOURNE, 
Boston, July 28, 1802. JEREMIAH SMITH. 
Supreme Judicial Court, August Term, at Boston, A. D. 1802. 
Report read and accepted, and judgment accordingly. 
JNO. TUCKER, Clerk. 11 
wealth was represented by James Sullivan, Attor- 
ney General, and afterwards Governor of the State. 
The Town was defended by Theophilus Parsons, af- 
terwards Chief Justice, and by John Lowell, Junior. 
The case was of great interest, in which the eminent 
counsel on both sides displayed their rare learning 
to great effect.* 
The Judicial Courts of the County were held in a 
chamber of the Old State House, at the west end, 
fronting on Cornhill, which is now called Washing- 
ton street, until the population and wants of the 
County required more ample accommodation. A 
building, to whose venerable form my early recol- 
lections recur with pleasure, was erected in the year 
* A report of this trial, though but a sketch, was published by this writer in the 
Monthly Anthology, for January, 1805. 
“ The Old State House is in length one hundred and twelve feet, in breadth thirty 
“ six feet, and three stories high. In the centre of the roof is a tower, consisting of 
“ three stories, finished according to the Tuscan, Dorick and Ionick orders. The 
‘‘ lower floor of the building served for a covered walk for the inhabitants. On this 
“ floor were kept the offices of the Supreme Judicial Court and Court of Common 
“ Pleas. The chambers over it were occupied by the General Court, the Senate in 
“ one and the Representatives body in the opposite chamber. The third story was 
“ appropriated for the use of the Committees of the General Court. On the lower 
“ floor were ten pillars of the Dorick order, which supported the chambers occupied 
“ by the Legislature.” 
See a History of Boston, by Caleb H. Snow, M. D. and published by Abel 
Bowen, 1825. 12 
1768, on the spot where we now stand.* The 
county prison, which had before that time given 
name to the street, was removed to the rear of the 
lot, to accommodate the new structure, the plan of 
which was designed, after approved models in Eng- 
land, by Sir Francis Bernard, the Governor of the 
Province.f It was large and commodious, and for 
the correctness of the plan, its accommodations, and 
* After considerable search, I have not been able to ascertain the exact date of the 
removal of the Courts to the new Court House in Prison Lane, which was afterwards 
called Queen Street, and since the American Revolution, Court Street. On the 27th 
of April, 1769, Mr. Alexander Young was appointed by the Court of General Ses- 
“ sions, to take care of the new Court House, lately built in Queen Street, and he 
“ being in Court, declared his acceptance of the same.” 
The Court of Sessions were desirous to secure to the County the exclusive posses- 
sion, or at least the right to the property of that part of the Old State House, which 
had been occupied by the County for the sessions of the Courts. On the 2d May; 
1769, John Ruddock, Belcher Noyes and Samuel Pemberton, Esquires, were ap- 
pointed a Committee, “to cause the stairs in the late Court chamber, in the Town 
“ House so called, leading up to the gallery there, to be immediately taken down, and 
“ to cause the door leading into said chamber to be locked and so secured, as that no 
“ person shall enter said chamber without having leave of this Court, or the consent of 
“ the Committee, and said Committee are directed to open the other stairs leading 
“ up to the gallery. The said Committee declining to act in the above affair, or- 
“ dered, that Richard Dana, Joseph Williams, and John Tudor, Esquires, be the 
“ Committee for the above purpose.” Records of the Court of Sessions of Suffolk 
County. 
t Governor Bernard was a friend to literature and the arts. He interested 
himself greatly in favor of Harvard College, when Harvard Hall, with the Library 
and philosophical apparatus, was destroyed by fire. He made considerable dona- 
tions to the library. The plan of the building, which now bears the name of Har- 
vard Hall, is a specimen of his taste in architecture, and from which, as designed by 
himself, he would not suffer any deviation. See Rev. Dr. Eliot’s Biographical Dic- 
tionary, art. Francis Bernard. 13 
its simple beauty, it did credit to the period in which 
it was built. On the lower floor was a convenient 
hall, which served for a covered walk for persons 
attending court. The oflices of the Registers of 
Probate and of Deeds, and of the clerk of the Court 
of Sessions, were on this floor. A number of pillars of 
the Tuscan order supported the floor where the Court 
sat. The Court room was upon a liberal scale for 
the period, and served for all the judicial courts, 
which held their sessions successively in this Coun- 
ty.* After the Courts were removed, from the Old 
Court House, in Court street, to the New Stone 
Building in Court square, in the year 1812, the sec- 
ond and third stories of the former were altered to 
* At the May Term of the General Sessions, 1770, the Committee, Edmund Quin- 
cy, John Avery, and Samuel Pemberton, Esqrs. who were appointed to audit the 
accounts of the Committee appointed to erect the new Court House, reported, that 
the whole cost of building the same, including forty five pounds allowed to the Com- 
mittee for their oversight, amounted to £2418 19s 10c? 3/'lawful money. 
At the May Term of the General Sessions, 1769, the Committee appointed to ex- 
amine the general account of the whole expense of building the new gaol in Queen 
Street, begun on the 12th day of August, 1766, and finished the 21st of March 1767, 
reported, that the whole expense amounted to £3466 13s 9d 2f. 
The inside of the New Gaol was, on the night following the 30th January, 1769, 
entirely consumed by fire, no part thereof but the stone walls being left. The Ses- 
sions appointed Joshua Winslow, Foster Hutchinson, and John Tudor, Esquires, to 
rebuild the gaol, and authorised them to draw upon the County Treasurer for the 
amount. At the October Term, 1770, the Committee to whom the general account 
of the building Committee was referred for examination, reported, that the whole 
expense, including thirty pounds allowed to that Committee for their oversight, 
amounted to £1073 19s 4d. 14 
accommodate the Courts of the United States for 
this District,—and since the city was incorporated 
in the year 1822, the Police and Justice Courts held 
their sessions on the lower floor, till the building 
was taken down in the year 1833. 
The Stone Court House, in Court Square, was 
built in the year 1812. It is called by Dr. Snow, 
in his History of Boston, and is sometimes known 
by the name of Johnson Hall, in honor of Isaac 
Johnson, one of the first settlers of the town. That 
writer styles him, “The Father of Boston,” as it 
was he that persuaded Governor Winthrop and the 
rest of the company to cross Charles River, and to 
settle on this peninsula. He married the Lady Ar- 
abella, a daughter of the Earl of Lincoln. The deep 
religious principle and conjugal affection of that lady, 
encouraged her to leave the elegant enjoyments of 
her native home, and to share with her husband the 
perils of the ocean and the wilderness. But her del- 
icate frame was crushed by the adverse circumstan- 
ces, to which she was exposed after her arrival. To 
her piety and affection she fell an early victim; and 
she was followed to the grave by the lamentations 
of the settlers, by whom she was regarded as “ the 
pride of the Colony.” The widowed spirit of her 15 
partner was not long separated from its noble com- 
panion. So greatly was he beloved while he lived, 
and lamented at his death, that “ the people ordered 
their bodies to be buried near him.” This was the 
origin of the present Chapel Burying Place, which 
was the first public cemetery of the town.* We 
seem to walk on consecrated ground. Our annals di- 
rect us to many spots, hallowed by piety and patriot- 
ism, which, like the rural deities and household gods 
of antiquity, perpetually remind us of our Fathers. 
The Stone Court House being on a plan too con- 
tracted for the courts of the county, and not contain- 
ing accommodations for those of the United States, 
has given place to this edifice, and is to be removed, 
to furnish to it a spacious opening, and a more con- 
venient avenue. 
Not only we ourselves, but the fairest specimens 
of human art and strength must yield to the hand 
of time. The autumnal leaf waves in melancholy 
luxuriance and triumph over their ruins both in the 
new and old world. This massive structure, like 
those which have preceded it, and which in their 
day claimed to be eternal, is destined to crumble to 
ruin. May Justice, Prudence, Fortitude and Moder- 
* See Dr. Snow’s History of Boston. 16 
ation be inscribed on its pillars,* and shed lustre on 
those scenes which will here date their record. 
May justice be always administered in this Hall 
with clemency, which is among the choicest attri- 
butes of power, and yet with wisdom, so as best to 
prevent while it corrects the offender. May 
there never cease to preside over these judicial 
seats men of learning, firmness, and integrity, not 
avaricious of popularity, but desiring the approba- 
tion of the wise and good, fearing the Most High 
God, and devoted to those principles of social order, 
which emanate from his throne, and partake of his 
immortality. 
You will naturally ask, gentlemen, upon entering 
on the duties of your office, on whom the criminal 
laws should operate, and who are answerable for 
their violation. To the Lawryer, and to the Judge, 
and especially to Jurors, called to assist in the ad- 
ministration of justice, without a previous course of 
legal study, the question is full of interest. Several 
recent trials in this court have attracted my atten- 
* Nam cum illse copulatse connexseque sint, nec alia ab alia possit separari; ta- 
men proprium suum cujusque munus est; ut fortitudo in laboribus, periculisque 
cernatur, temperantia in praetermittendis voluptatibus, prudentia in delectu bonorum 
et malorum, justitia in suo cuique tribuendo. De Fin. lib. v. par. XXIII. p. 411. 
edit Davis. 17 
tion to this subject, and I will therefore devote a 
few moments to it. 
In general, all are capable of committing crimes, 
and are punishable for their commission, who have 
not a want of will; and this may arise from defect of 
understanding, or from insanity. The motive which 
leads to the commission of an act, determines its 
merit or demerit. In the construction of penal 
statutes, they are to be taken favorably for those, 
on whom the penalty is to be inflicted. From 
this humane rule, it follows, that there must be 
a breach both of the letter and spirit of the law 
to make an offence. Language is perhaps inade- 
equate to express all that the law commands or for- 
bids. But the true meaning and intent of a law, 
when ascertained, is to guide in its application. 
Hence, when the words of a law have been broken, 
to avoid a greater inconvenience than the law was 
designed to prevent; it may be presumed, that this 
formed an exception to its operation in the mind of 
the lawgiver ; and where an act has been done by 
necessity, or by compulsion, or by involuntary igno- 
rance, the law itself is not broken. 
1. The want of will may arise from defect of un- 
derstanding, as from infancy. The law does not fix 18 
the exact age, at which an infant must arrive, be- 
fore he is presumed to have the capacity to commit 
a crime. An infant of fourteen years is undoubt- 
edly amenable for an unlawful act. But if a child 
of more tender age commits an unlawful act, and it 
appears, that he possessed sufficient discretion to 
distinguish between moral good and evil, the proof 
of this discretion will supply the defect of years. It 
sometimes happens too, that the mind is imbecile 
even after the animal functions are developed, and 
the physical powers of the body have arrived at con- 
siderable maturity. If this mental imbecility should 
amount to an incapacity to distinguish between right 
and wrong, it would follow, that the agent was not 
a proper subject for punishment, and it would ex- 
cuse a criminal act. 
2. The want of will arising from a diseased state 
of the mind, when that noble faculty “wanders from 
its dwelling,” and has become full of strange fancies, 
is called insanity. If this amounts to a total perver- 
sion of the intellectual faculty, it is an excuse for 
any enormity which may be committed under its 
influence.* But where there is only such a partial 
* 3 Inst. 6. The ancient law was, that if a mad man had killed or offered to kill 
the king, it was holden for treason 3 and so it appeareth by king Alfred’s laws 
before the conquest, and in lib. 4, in Beverlyes case. But now by the statute of 19 
derangement as leaves the individual free to act or 
to forbear in the particular case in question ; or, 
where he perpetrates the crime during a lucid in- 
terval ; he will, according to the English law, be 
equally liable to punishment with those who are 
sane. Where the mind labors under a delirium as 
to the act in question, or as to the objects of its 
attack, the individual will not be accountable for the 
particular act, although he may discern other ob- 
jects clearly.* There are degrees of madness as of 
folly; and a man who is very sober, and of a right 
understanding in all other things, may in one par- 
ticular be frantick. The learned Master Plowden, 
who, among the ancient commentators of the law, is 
highly esteemed, observes on the subject of insanity: 
25 E, 3, de proditionibus, and by force of these words, fait compasser ou imaginer 
la mort, he that is non compos mentis, and totally deprived of all and 
imaginations, cannot commit high treason by compassing or imagining the death of 
the king; for furiosus solo furore punitur ; but it must be an absolute madnesse, and 
a total deprivation of memorie. And this appeareth by the statute of 33 H. 8. for 
thereby it is provided, that if a man being compos mentis commit high treason, and, 
after accusation, &c. fall to madnesse, that he might be tryed in his absence, &c. 
and suffer death, as if he were of perfect memory ; for by this statute of 25 E. 3, a 
madman could not commit high treason. It was further provided by the said act 
of 33 H. 8, that if a man attainted of treason, became mad, that notwithstanding he 
should be executed; which cruell and inhuman law lived not long, but was re- 
pealed, for in that point also it was against the common law, because by intendment 
of law the execution of the offender is for example, ut poena ad paucos, metus ad 
omnes perveniat, as before is said; but so it is not when a madman is executed, but 
should be a miserable spectacle, both against law, and of extreme inhumanity and 
cruelty, and can be no example to others. 
* Hadfield’s Case, Lord Erskine’s Speeches, 1 v\ 20 
“ if a man non sanae memorial kills another, although 
“ he has broken the words of the law, yet he has 
“ not broken the law, because he had no mem- 
“ ory nor understanding, but meer ignorance, which 
“ came to him by the hands of God ; and therefore 
“it is called involuntary ignorance, to which the 
“ law imputes the act, inasmuch as there is no fault 
“ in him, and for that reason, he shall be excused, 
“ seeing he is ignorant by compulsion.”* The best 
legal description of an insane man is, one who is 
devoid of a sound memory.f Because the memory, 
in an intellectual creature, is necessary in the next 
degree to perception. It is of so great moment, that 
where it is wanting, all the rest of our faculties are 
in a great measure useless.}; 
The law of insanity in this Commonwealth was 
stated by the late Chief Justice Parker, in the trial 
of William McDonnough, for the murder of his wife. 
He instructed the jury, that, “ if they were satisfied 
“that the prisoner was in a state of mental derange- 
ment by the visitation of Providence, he was not a 
“moral agent, and could not be guilty. But such de- 
rangement must appear to have existed at the time 
“the act was done, to have this effect. If it were 
“proved, that the prisoner had been subject to fits of 
* Plowden’s Com. 19. 
t Co. Lit. 246. 
11 Locke’s Essay, 114. 21 
“lunacy at different periods of his life, still if he was 
“not under this infirmity at the time, he could not 
“on that account be acquitted.”* 
Insanity, when established, is followed by immu- 
nity from punishment, but not from constraint; and 
whenever a person is acquitted of a crime on the 
ground of insanity, and it appears, that it would be 
dangerous to the safety of the public, that he should 
be at large, the law makes it the duty of the court, 
before which he was tried, to order him into con- 
finement, until he shall be restored to his right 
mind, or until the danger from his paroxysms shall 
cease.f 
Some persons, led perhaps by a mistaken hu- 
manity, or influenced by medical theory, and not 
matured by practical observation, have imag- 
ined, that if the party accused was once insane, 
he ought never afterwards to be punished for a 
criminal act; because they say, it cannot be shown, 
that it was not the effect of insanity. If this is 
to be regarded as the true principle, it must op- 
* Sup. Jud. Court, Suffolk, Nov. 1817. This trial was published by T. G. Bangs, 
and is particularly valuable for the arguments of B. Rand, and S. L. Knapp, Esqrs. 
the Prisoner’s Counsel, and of the Hon. Perez Morton, the attorney General for the 
Commonwealth. 
t Acts of 1797, c. 62—1816, c. 28—1834, c. 150. 22 
erate as a great hardship both on individuals and 
the public. If the individual is not to be held 
an accountable being, he must be treated as in- 
sane. It would, of course, deprive him of the 
common privileges of a man and a citizen, and 
exclude him from the enjoyments of society. It 
would likewise impose on the public the burden 
and duty of keeping him in perpetual confinement, 
so as to restrain him from committing acts of 
violence to others or to himself. Of those who 
boast of their superior reason, and are confident 
in their high intellectual powers, how few pos- 
sess at all times the well balanced mind. Very 
many, perhaps most men have, at times, and on 
some subjects, labored under a real insanity. I 
am sensible, that it is sometimes very difficult to 
decide, whether an act was done wilfully. If by a 
lucid interval be understood only a short relaxation 
or period of repose, while the system still labours 
under the disease ; the patient would not be held 
answerable for an unlawful act done at such time. 
But it would be otherwise, if it is understood by this 
phrase, “ not a remission of the complaint, but a 
“ temporary and total cessation of it, and complete 
“ restoration to the perfect enjoyment of reason up- 23 
“ on which the mind was previously cognizant.”* I 
doubt whether any physician, who has attentively ob- 
served this disease, will maintain, that the mind may 
not recover from insanity as from other maladies. 
Where the sufferer has recovered his natural char- 
acter, and his judgment and affections have resumed 
their wonted tone and activity, we infer that he is re- 
stored to a sound mind. A relapse, or a recurrence of 
the disease afterwards, perhaps even a predisposition 
to that state, would not be inconsistent with a res- 
toration for the time to pristine health and account- 
ability. But it must always devolve on a jury to 
decide, under all the circumstances, whether an un- 
lawful act proceeded from insanity, or from the vol- 
untary indulgence of evil passions. For “in some 
“ persons the instinct of resentment, by being habit- 
“ ually cherished and indulged, becomes a passion, 
“ which differs from insanity only in its duration.” 
Evidence that the accused party has once been 
mad, would naturally lead to the most humane 
construction of his actions. It would, I think, lay 
upon the prosecutor the burden of shewing, from 
the circumstances of the act itself, or by other 
proof, that the act was deliberate and wilful, and 
that the actor was a suitable subject of punish- 
* Shelford on Lunacy. 24 
ment.* Under other circumstances, the law pre- 
sumes every man prima facie to be of sound mind, 
and answerable for his conduct. Insanity is as 
difficult to be scanned as to be cured. But in a 
trial, every circumstance which has a near or even 
a remote tendency to establish the fact of insanity, 
would be pertinent to the issue. Not only the con- 
duct of the party before and after, and at the time 
the deed was done, but facts which happened years 
before ;—if he ever met with an injury, physical or 
moral, bodily or mental, which might have had a 
tendency to derange the intellect; if he had ever 
before labored under a fit of insanity ; if it might 
have been the effect of an hereditary taint, and de- 
rived from an ancestor, near or remote, direct or 
collateral ;—so likewise the opinions of learned 
physicians, and of others who have studied with 
attention and accuracy the phenomena of the mind; 
all would be entitled to great respect, and to be 
* In a learned note of Lord Nottingham to Co Lit. 246, n. (1) he says, “melan- 
“ choly and hypochondriac vapours are like storms at sea, which though they dis- 
“ turb awhile, yet they do not hinder the returning to the former calm; semel Juri- 
“ bundns, semper furibundus prmsumitur; and therefore where the question is of a 
“ fact done in lucido intervallo, which may be either by remission or intermission, 
“ it is not enough to show the act was actus sapienti conveniens, for that may hap- 
“ pen many ways; but it must be proved to be actus sapientis, and to proceed from 
“ judgment and deliberation, else the presumption continues.” The whole note is 
excellent. 25 
weighed by a jury in making up their verdict. For 
as it would be a great reflection upon the public 
justice, that an innocent man should be convicted; 
it would be equally unjust, and contrary to the prin- 
ciple of public punishment, that one, deprived of his 
reason by the act of Providence, and without the 
power of choosing between right and wrong, should, 
for an act done at such time, and under such cir- 
cumstances, be punished as a criminal. 
In closing these remarks, I ought to observe, that 
insanity has been so often alleged in excuse for 
criminal acts, when there was no ground for that de- 
fence, that it is apt to excite suspicion, and always 
requires discernment. From regard to the public 
safety, which is the supreme law, too much indul- 
gence should not be yielded to this defence. Be- 
cause mankind, and particularly the young, should 
learn, at an early period, to control their imagina- 
tions, and not to yield too much to excitement, the 
fruitful source of innumerable ills. Much depends 
on mental effort and early discipline to resist the 
first wanderings of a diseased fancy. I have thought 
that the course of education in modern times, and 
especially since the aera of the French revolution, 
has not been favorable to the growth of strong 
minds. Domestic restraint and the discipline of 26 
the school have been much relaxed. Great men 
are seldom educated in the lap of indulgence. Our 
political institutions invite the young to aspire, at a 
very early period, to those stations, which would 
seem to be most safe in the hands of wisdom and 
experience. Where all may aim at distinction, and 
it is even thought commendable to indulge in the 
dreams of wealth and ambition ; we must expect to 
meet with frequent instances of disappointment and 
failure, and those mental diseases which are apt to 
follow in their train. Party division in religion and 
politics, in all their rancour, and to the great injury 
of pure Christianity and of good government, is the 
spirit of the times. The danger from excitement is 
not confined to our own sex. It is beginning to be 
fashionable here and in Europe, for woman, whom 
nature formed to temper man by her gentler virtues, 
to desert her domestic altar and fireside, and to 
engage with fanatic zeal in the work of political re- 
formation. For the sake of the peace of society, and 
to prevent those collisions which would acquire a 
tenfold degree of virulence, were they mingled with 
the passions of the sex, the constitutions of our own 
country, in imitation of all wise systems of legisla- 
tion, ancient and modern, have excluded woman 
from a share in the administration of government. 
Is it not quite sufficient, that she has an appropriate 27 
sphere of action, and an empire of her own ? The 
Author of nature has not formed her to engage in 
the strife of party : for that would convert our homes 
into scenes of domestic discord and rivalry. Nor is 
she qualified, by her physical conformation and tem- 
perament, for the defence of the state. But weap- 
ons thrown by feeble hands still indicate the martial 
spirit of the warriors :—and I fear, that some recent 
events in our own country will not well tell in his- 
tory for the modesty of the sex. 
If individuals have, either here or in England, 
fallen victims to a judicial sentence for acts done 
under the influence of insanity, it was against the 
clearly defined spirit of the law of both countries. 
But if such judgment was rendered under ignorance 
of the fact, which might have been made manifest 
by the defendant himself, at his trial, or by the care 
of his friends, or by the diligence of his counsel; it 
must be regarded as a misfortune, and ought not to 
rest as an imputation on the public justice. For 
courts must decide according to what is alleged and 
made manifest at the time. It is to be hoped, that 
the increasing light of medical science, and the more 
accurate observations of its learned professors, will 
hereafter render such occurrences still more rare. 
Since it is not to be concealed, that the visions of theory have in as in other important 
branches of science, often had an evil influence on 
the progress of truth.* 
Where a man has voluntarily deprived himself 
of a rational will, by indulgence in wine, strong 
liquors, or other intoxicating and stupifying sub- 
stances, it forms an exception to the general rule. 
Most persons charged with crimes proceeding from 
passion and violence, are apt to allege in ex- 
cuse, that they were not at the time conscious 
of their actions. Human judicatures justly punish 
the transgressor in such cases, “because the fact 
“ is proved against him, but want of conscious- 
“ ness cannot be proved for him.”f Drunkenness is 
a voluntary act. Where one, under its influence, 
commits a deed injurious to individuals or to society, 
the law imputes to him guilt. “ There is guilt in 
“ignorance, when knowledge is within our reach ; 
“there is guilt in heedless inattention, when truths 
* By the favour of a learned medical friend, I have lately seen Dr. T. R. Beck’s 
work, entitled, “Elements of Medical Jurisprudence,” in 2 vols, 8vo. fifth edi- 
tion, published in Albany, 1835. This treatise is dedicated “ to the Medical and 
Legal Professions throughout the Union.” For the learning and great labour bes- 
towed on this work by Professor Beck, it is entited to be regarded as of great au- 
thority, and is worthy of the patronage of those to whom it is addressed. 
11 Locke’s Essay on Human Understanding1, v. I, p. 294. 29 
“and motives of the highest interest claim our 
“serious consideration.”* Habits, good or evil, 
are formed by time and the repetition of individ- 
ual acts. In becoming slaves to an odious vice, 
violence is done to the moral sense. For con- 
science is that spark of the Divinity within us, which 
always approves what is good, and condemns what 
is evil. It is not till after repeated neglect, that 
this faithful monitor and friend takes his departure. 
“ One class of insane persons,” says Lord Coke, 
“is hee that by his own vitious act, for a time de- 
“priveth himselfe of his memory and understanding, 
“as he that is drunken. But that kinde of non com- 
“ pos mentis, in civil matters, gives no privilege or 
“benefit to him or his heirs.” Again, “as for a 
“ drunkard, who is voluntarius daemon, he hath, (as 
“ hath been said) no privilege thereby, but what 
“ hurt or ill soever he doth, his drunkennesse doth 
“ aggravate it.”f That venerable sage, whom I 
have before quoted, says on this subject: “where a 
“ man breaks the words of the law by voluntary 
“ ignorance, there he shall not be excused. As if 
“ a person that is drunk kills another, this shall be 
“ felony, and he shall be hanged for it, and yet he 
* Dr. Abercrombie, on the Intellectual Faculties, 169. 
t Co. Lit. 247 b. 30 
“ did it through ignorance, for when he was drunk, 
“ he had no understanding nor memory ; but inas- 
“ much as that ignorance was occasioned by his own 
“ act and folly, and he might have avoided it, he 
“ shall not be privileged thereby. And Aristotle 
“ says, that such a person deserves double punish- 
“ ment, because he has doubly offended, viz: in 
“ being drunk to the evil example of others, and in 
“ committing the crime of homicide. He is in such 
“ case the cause of his own ignorance.’5* The 
Chief Justice Parker, in the trial of William McDon- 
nough, also said, “ that if the jury believed, that his 
“reason was impaired by intoxication only, no pal- 
“ bating circumstances existing, he must be con- 
“ victed.” 
Habits of intemperance equally violate divine and 
human law ; and you perceive, that drunkenness is 
not admitted in this Commonwealth, as an excuse 
for a criminal act. The argument for temperance 
hence acquires additional force ; and those who are 
labouring in that good cause, are entitled to in- 
creased gratitude. Zeal in this, as in every good 
cause, is essential to its success. If this zeal some- 
tines carries its advocates beyond the line of moder- 
* Plowden’s Com. 19. 31 
ation, the cause itself furnishes the best apology for 
the error, though it will not excuse an unlawful act. 
Most intimate is the alliance of temperance with 
submission to the law, and consequently with the 
supremacy of the law, which is the only thing that 
has right in a free government to implicit obedience. 
The law has accomplished much, when it restrains 
the passions of men, and prevents the beginnings of 
strife and contention. Let it be remembered too, 
that abstinence from wine and strong drink is but 
one branch of temperance. “ The virtue of tem- 
perance,” says an admirable writer, “ is a confirmed 
“habit of governing all the affections, passions, and 
“ appetites of our nature, in a proper manner, by 
“ placing our affections on proper objects, by re- 
“ straining our angry passions, and by gratifying our 
“appetites in moderation. Where this virtue sub- 
“ sists, the reasonable man is a law to himself, and 
“ temptation can have little influence.”* 
I have occupied so much time in these remarks, 
on individual accountability and guilt, which I 
have written for my own admonition, as well as 
for your benefit, that I must refer you to the 
* Note ca 2 Peter, C. I. V. 6, by James McKnight, U. D. The writer takes 
pleasure in referring to the translation and commentary on the Apostolical Epistles, 
by Dr. McKnight. 32 
learned attorney for the Commonwealth, to advise 
you in particulars, and to facilitate your inves- 
tigations in the discharge of your duty. For the 
time being, you stand for the defence of the laws 
and liberties of this community :—“for that liberty 
“ which is consistent with order, and that not only 
“ exists with order and virtue, but cannot at all exist 
“ without them. It inheres in good and steady gov- 
ernment as in its substance and vital principle.”* 
This is not the time to relax the law, or its wise and 
prompt administration. It is notorious, that the 
country abounds with great and daring offenders, 
both natives and foreigners. In some parts of the 
country, the dilatory and feeble administration of 
the law has been made the pretence by mobs to 
take its administration into their hands, and to exe- 
cute summary justice on their victims. Experience 
proves, that at times, and for the moment, the 
strength of the law is unequal to contend with pop- 
ular frenzy. But the repetition of such disorders is 
against the first pinciples of our social existence, 
and will tend, if not effectually resisted, to reduce 
society to a state of anarchy. There are those in 
every community who live by the arts of fraud. In 
my opinion, fraud is as great a crime as theft, and 
* Dr. Parr. 33 
deserves as severe a punishment. “ Care and vigi- 
“ lance, with a very common understanding, may 
“ preserve a man’s goods from thieves, but honesty 
“ has no fence against superior cunning ; and since 
“it is necessary that there should be a perpetual 
“ intercourse of buying and selling, and dealing 
“ upon credit ; where fraud is permitted and con- 
“ nived at, or has no law to punish it, the honest 
“dealer is always undone and the knave gets the 
“ advantage.” 
Our admirable constitution guarantees to each 
citizen the safety of his person,—the sacred rights 
of his property,—the fruits of his labour and talent, 
—wise and equal laws,—and the prompt and im- 
partial administration of justice. It places poor and 
rich on equal political ground, making labor honor- 
able, and securing its reward. Our laws and insti- 
tutions, political, civil, and religious, are the fruit 
of the collected wisdom of the people, matured by 
the experience of generations. The present year 
furnishes a convincing proof of the desire of the Le- 
gislature to perfect the laws. To three eminent 
jurists, enjoying the highest reputation in the pro- 
fession, and the full confidence of the community, 
was committed the whole body of the statutes, to 
be revised by their care, and to be presented in a 34 
condensed form, simple and intelligible, and strip- 
ped of needless phraseology, so as to combine the 
acts of the Legislature with the solemn decisions of 
the Supreme Judicial Court after debate and con- 
sideration. This great work was completed by the 
Commissioners, at great expense of learning and 
diligence, and to their great honor.* After patient 
and laborious examination, and full debate, first by 
a grand Committee of the Legislature, and after- 
wards by both branches of the General Court, in an 
extraordinary session, the Code has been adopted 
with unexampled unanimity, and waits only to be 
sent to the people, to constitute the rule of their 
future action. I congratulate you on the comple- 
tion of this magnificent work, containing the princi- 
ples of ancient and modern jurisprudence, adapted 
to our times and to our own condition and wants. 
It is of the highest importance to the citizens of a 
state, that its lawrs should be settled and perma- 
nent ; but as time will be required to develop any 
innate fault in the Code, so likewise must time be 
allowed to demonstrate its perfection. Like the 
XII Tables of Rome, and the Institutes of Justinian, 
* The Commissioners were, the Hon. Charles Jackson, lion. Asahel Stearns, and 
Hon. John Pickering. The latter gentleman was appointed to supply the place of 
the lamented John Hooker Ashmun, Royal Professor of Law in Harvard Univer- 
sity, who died on the 1st of April, 1833, aged 33 years. 35 
may it be immortal, and deservedly enjoy the ad- 
miration and reverence of the people of this Com- 
monwealth in all future time.