Shooting Victoria

by Paul Thomas Murphy

  Now our Exhibition is to be driven from London; the patrons who are afraid, the Radicals who want to show their power over the crown property (the Parks), The Times, whose solicitor bought a house near Hyde Park, are abusing and insulting. This evening the decision is to be made. Peel, who had undertaken the defence, is no more, so we shall probably be defeated and have to give up the whole exhibition.

  Colonel Sibthorp was in rare bombastic form during the debate that afternoon; if his energy was any indication, the Exhibition was as good as dead. Sibthorp laid into the greatest trash, fraud, and imposition “palmed upon” the people of Britain. The Exhibition would surely flood the country with “cheap and nasty trash” and attract the nation’s criminal element to Hyde Park: “That being the case, he would advise persons residing near the park to keep a sharp look out after their silver forks and spoons and serving maids.” But while Sibthorp had heretofore spoken for a growing movement, Robert Peel’s death had changed everything. Before the debate began, Sir John Russell, his voice choking with emotion, paid tribute to Peel and to the deep love of country that had informed his every action. And in mid-debate Henry Labouchère, a member of the Royal Commission, reminded the House that assenting to the site was the very last public duty performed by Peel, “that eminent man, who never neglected any duty … which he considered conducive to the public good.” Member after member deplored Sibthorp’s fanatical opposition to the very idea of an Exhibition, and in the end Sibthorp’s motion was crushed, 46 for and 166 against.* “The feeling of the house was completely altered,” Lord John wrote to Albert the next day, “and all parties seemed to agree that Hyde Park was the best site. So it is to be hoped that no further interruption is to take place.” Peel had won the day for Albert after all.

  But Albert and the Royal Commission were not yet out of the woods. Money to guarantee the Exhibition was slow in coming, and the Building Committee’s design was as unpopular as ever. Within days, however, Joseph Paxton succeeded in overcoming all obstacles. His iron-and-glass design had received a cold reception from the Exhibition’s Building Committee, especially from Isam-bard Kingdom Brunel, who jealously defended his own design. And so on 6 July, Paxton went over their heads, appealing to the public by publishing his plan in the Illustrated London News. They loved his design as much as they reviled Brunel’s. Still the Building Committee resisted, noting in their meeting of 11 July that Paxton’s “peculiar” design would cost 10% more than a variation of their own stripped of Brunel’s beloved dome. The next day the matter was all but resolved when Morton Peto, the wealthy building and railway contractor, in a single act put an end to the Exhibition’s money troubles by putting up a £50,000 guarantee. That sizeable donation quickly opened the floodgates to others: in days, there was more than enough to guarantee the erection of an exhibition building. As a codicil to his offer, Peto wrote: “Perhaps I might take the liberty of saying that I consider the success of the Exhibition would be considerably increased by the adoption of Mr. Paxton’s plan if it is not too costly.” His suggestion was too weighty to ignore. On the sixteenth, the Building Committee met with the Royal Commission. Brunel’s design was discarded, Paxton’s embraced. “In all the matters which I had in hand,” Albert was able to write Stockmar four days later from Osborne, “I had triumphant success.”

  Palmerston’s triumph, Peel’s death, the squabble about the site of the Exhibition: all had stolen attention from Pate, so that when he returned to complete his Home Office examination on Friday morning, the fifth of July, there was no large crowd outside to hoot or hiss him. Pate came in the company of Otway and Scotland Yard Detective Stephen Thornton. Pate was, as always, well dressed, but looked paler than he had before. His only complaint about his imprisonment—indeed, his only recorded utterance that day—was that his health suffered from lack of walking; cut off from his obsessive perambulations, he had instead spent most of the last week absorbed in his books. For the most part Pate sat with a vacant stare, drawn deeply into himself, largely oblivious to the questioning of the Attorney General or the maneuvers of his own counsel, with whom he hadn’t spoken since his arrest.

  The examination began at noon, and was largely a reprise of the first examination—several old and new witnesses to reestablish the fact that the Queen was hit, and that Pate was the one hitting her. Only the Queen’s physician, James Clark, had anything new to add, speaking to the extent of the Queen’s injury: Pate had indeed done damage to the royal forehead, causing swelling and a severe bruise and breaking the skin, causing royal blood to flow. Such an injury was technically enough for a charge of High Treason, but at this point, Attorney General Jervis and the Home Secretary had agreed that Pate would stand trial under Peel’s act, for a high misdemeanour. Huddleston, Pate’s attorney, said little, remarking that he would reserve his defense for Pate until another time. Given the charge, Pate could have obtained bail—but he did not apply for it. Commitment papers were drawn up, and Otway and Thornton led Pate to a cab bound for Newgate.

  Pate’s defense was extremely active during this time, setting up—if not quite an insanity defense, then a defense in which insanity would play a role. Hardisty and Huddleston had already procured for expert testimony the two most noted professional witnesses to insanity of the day: Edward Thomas Monro, still chief physician at Bethlem, as he was when he testified at McNaughtan’s trial, and John Conolly, who had testified at Oxford’s. Monro visited Pate twice at Clerkenwell and three times in Newgate; Conolly likely accompanied him on some of these visits. Both became convinced that Pate was insane.

  And during this time it became clear that Robert Pate Senior, had indeed obtained the best legal representation for his son that money could buy: Alexander Cockburn, Q.C., architect of McNaughtan’s insanity defense. Cockburn had indeed by this time been offered the position of Solicitor General by a grateful government. As it happens, all three principal attorneys in the Pate case looked forward to impending promotion. Because the Lord Chancellor, Lord Cottenham, had retired, a ladder of legal appointments had opened up; Cockburn was to become Solicitor General, Solicitor General John Romilly was to become Attorney General, and Attorney General John Jervis was to become Chief Justice of the Court of Common Pleas. The promotions all around complicated the timing of Pate’s trial: in order for Cockburn to be eligible to defend him, or Jervis to prosecute him, they would need to finish before the promotions took effect. Attorney General Jervis, then, was compelled to hurry the trial along, requesting the presiding judge, Baron Alderson, to schedule Pate’s trial for the next morning, 11 July. Pate thus came before the bar less than a week after he was charged.

  Expecting Pate’s trial to be as overcrowded as those of some of his predecessors, the sheriffs instituted the usual ticket system. They needn’t have bothered: the courtroom on that morning was full but not crowded.* At 10:00 Pate entered the dock every bit a gentleman, in dress and in manner. With perfect composure he bowed slightly to the justices Alderson, Patteson, and Talfourd. The charge was read, and Pate loudly pleaded not guilty.

  For the prosecution—Attorney General Jervis, Solicitor General Romilly, and three others**—the task was an easy one. That Pate had struck the Queen was hardly in question; the only true question was whether Pate was legally insane at the moment of the attack. But an acquittal on the grounds of insanity would in effect net Pate the virtual life sentence of confinement in Bethlem at the Queen’s pleasure, a worse penalty on the face of it than the maximum sentence allowed under Peel’s 1842 law, seven years’ transportation. While confinement for an insanity acquittal might originally have been intended as therapeutic care, not punishment, neither the judges, nor the defense, nor the prosecution looked at it that way, the Attorney General noting to the jury during the trial that the effect of such an acquittal “would be that he would be imprisoned for the rest of his life.” The prosecution’s strategy, then, was simply to bring forth a few witnesses to connect Pate with the cane, and the cane with the blow to the Queen’s fo
rehead, and to do little to contest any evidence that Pate was insane. They had sent no medical experts to interview Pate or counterbalance Monro’s or Conolly’s testimony. The defense witnesses and their testimony, therefore, were all familiar from the Home Office examination: the equerry Grey, Sergeant-Footman Renwick, Sgt. Silver, Samuel Cowling (a bystander when Pate attacked), and James Clark.

  Alexander Cockburn and John Huddleston for the defense, on the other hand, were in a fiendishly difficult position. Since they could not contest the fact that Pate had struck Victoria, they could not in effect win their case. If Pate were found guilty, they lost. And if he were found not guilty by reason of insanity, they lost, as he would face what amounted to a life sentence in Bethlem. As they could not win, they could only hope to make the loss as slight as possible. Therefore, Cockburn could not hope to recreate his triumph in McNaughtan’s case. In 1843 he had secured McNaughtan’s acquittal brilliantly, by redefining the legal definition of insanity altogether and then demonstrating that McNaughtan’s state of mind fit that definition. Since McNaughtan faced the death penalty, a lifetime in Bethlem was indeed a victory. For Pate’s trial, the legal definition of insanity had been set by the Law Lords in the wake of McNaughtan’s trial: if Pate was aware that what he did was wrong, he could not be considered legally insane. Cockburn now did nothing to challenge that definition, and little to establish that Pate was unaware of the morality of his action. Indeed, Cockburn in his opening admitted to the jury that he simply could not prove “that there were certain and safe grounds for believing that the prisoner at the bar was not enabled to discriminate between right and wrong”—and that “he did not entertain very sanguine expectations as to the result” of the coming testimony as to Pate’s insanity. Cockburn’s hesitation must have confused the jury—and indeed would confuse anyone who did not realize that Cockburn and Huddleston had no intention of obtaining an insanity acquittal for Pate. They wanted to lose the case. Cockburn’s oratory, the string of witnesses to Pate’s bizarre actions, the medical experts—were all for the benefit of the judges and not the jury—not to gain an acquittal, but to gain the lightest sentence possible after a conviction. While the testimony, Cockburn argued,

  … might fall short of that degree of proof of insanity which would be necessary to give [Pate] immunity from the penalties of law, still the jury ought to be satisfied and their lordships who tried the case ought to be satisfied of this, that though some degree of intelligence remained to the prisoner, still it was clear that his mind was in a great degree deranged; and that if responsible at all, he was not responsible in the same degree as if he were of perfect sanity.

  Under the 1842 law, judges had a great deal of leeway in their sentencing—from a maximum seven years’ transportation, to the minimum of the briefest of prison sentences, with or without a whipping. Cockburn and Huddleston attempted to take advantage of this with an extremely risky strategy, appealing to the judges’ sense of pity: Pate was not vicious, but “unfortunate,” and did not deserve to be visited with the full severity of the law.

  The defense presented a host of witnesses to Pate’s traumas and idiosyncrasies while in the army: his morbid reaction to the death of his dog and his horses, his growing paranoia about the army cook and messman leagued to poison him, the bricks and stones in his stomach. Several testified as to his obsessive perambulations first at Putney Heath and Barnes Common, and then through the Parks. Pate’s valet, Charles Dodman, enumerated what he considered Pate’s many personal eccentricities at home: plunging his head into a four-gallon basin of water upon rising; bathing in a mixture of whiskey, camphor, and water; reading nursery rhymes; constantly singing badly and loudly enough to irritate his neighbors (and to amuse their servants). Visitors who met him at Dr. Startin’s house testified to his maniacal and antisocial behavior there. Finally, Conolly and Monro agreed that Pate was of unsound mind.

  Both the judges and the prosecution responded to this litany of oddity by adhering strictly to the McNaughtan Rules. Any evidence that did not directly address the question of whether Pate could tell right from wrong at the moment of the attack was not relevant to them. When Charles Mahon, better known as the “O’Gorman Mahon,” testified that in his opinion Pate was a “maniac … the frequent subject of remark amongst myself and [my] companions,” one of the judges asked him “you think he would not do a wrong act, because he would know it to be wrong?” “Certainly,” Mahon answered, with that word rendering the rest of his evidence useless.

  With the two medical witnesses, the Attorney General took pains to demonstrate that their conception of insanity was not at all the legal conception of insanity—that though much of what was wrong with Pate could be construed as mental illness, as long as Pate was aware of the immorality of his action he was criminally responsible for it. When, for example, Dr. Conolly offered a full diagnosis of his mental debility—“he presents an example of what is not at all uncommon to me, of persons who are very devoid of mental power … who consequently persevere in no pursuit, have no object, and are unfit for all the ordinary duties of life”—Jervis shifted the focus to Pate’s legal responsibility, Conolly admitting in response to his question “If you were to speak of an action that was decidedly right or wrong he would very clearly understand it, as clearly as I should myself.” After Monro’s assertion that Pate suffered delusions in the past, Jervis asked him “Is he, in your judgment, capable of distinguishing between right and wrong?” “In many things, certainly,” Monro replied. Both Conolly and Monro attempted to explain that Pate could distinguish between right and wrong but was still not responsible for his action since he was at that moment a slave to an impulse he could not control. He was “subject to sudden impulses of passion,” Conolly claimed; Monro maintained that “it frequently happens with persons of diseased mind that they will perversely do what they know to be wrong.” The notion that an irresistible impulse negated criminal responsibility was not new; indeed, it was a pillar of Cockburn’s defense of McNaughtan. But it was the pillar that the Law Lords ignored when formulating their rules, and it was clear that it meant little to the judges now.

  Both Conolly and Monro had made clear that Pate knew exactly what he was doing; given this fact, their personal opinions of his unsoundness was irrelevant and, worse, inappropriate in a court of law. When Monro stated his judgment of Pate’s mental illness, Baron Alderson gave him a tongue-lashing that showed that, in Alderson’s mind at least, the status of the expert medical testimony had not changed since Oxford’s trial ten years before. “Be so good, Dr. Monro,” Alderson snapped at him,

  … as not to take upon yourself the functions of the judges and the jury. If you can give us the results of your scientific knowledge upon the point we shall be glad to hear you; but while I am sitting upon the bench I will not permit any medical witness to usurp the functions of both the judge and the jury.

  In his closing statement, the Attorney General demonstrated that he was well aware of the defense’s attempt to soften Pate’s sentence, and he attempted to head it off. Telling the jury—and more importantly, the judges—that the defense was seeking a more lenient sentence because of Pate’s mental weakness, he exhorted them not to mitigate Pate’s sentence in the least—Pate was a dangerous man, and if he were soon free, probably “unwatched and unrestrained,” he would “renew his dangerous and violent proceedings.” Either convict him with a full punishment, or acquit him by reason of insanity and thus restrain him from further mischief.

  Baron Alderson agreed with Jervis, and made that extremely clear in his summation to the jury. That Pate had struck the Queen, he told them, was indisputable, and they were thus left with a single question: Was Pate of sound mind when he hit her? He argued that Pate might well be insane but still punishable if his insanity had no bearing on the crime itself. As examples, he noted that a man who killed a man under the delusion that that man was trying to kill him was not criminally responsible, while a man who killed another man while suffering the
delusion that his own head was made of glass was still responsible for his crime. He then rephrased the single question for the jury: “Did this unfortunate gentleman know it was wrong to strike the Queen on the forehead?” The notion of an irresistible impulse he dismissed out of hand as “one which would never be listened to by any sane jury.” “A man might say that he picked a pocket from some uncontrollable impulse,” Alderson wryly observed, “and in that case the law would have an uncontrollable impulse to punish him for it.”

  It was now 3:20 in the afternoon. The jury consulted for a few minutes, and then retired to discuss the case further. Their decision should have been an easy one, as not a shred of evidence suggested that Pate had been unaware that what he did was wrong. But the defense’s abundance of evidence as to Pate’s strange behaviors and mental deficiencies apparently complicated their deliberations: McNaughtan Rules or not, some of the jurors must have wondered if the man deserved an acquittal on the grounds of insanity. The jury deliberated for nearly four hours—a long time in a Victorian court of law—before agreeing on their verdict: guilty.

  In passing judgment, Baron Alderson noted Pate’s eccentric habits, his “differing from other men,” his mental affliction. Indeed, he opined that “you are as insane as it is possible for a person to be who is capable of distinguishing between right and wrong.” For all that, he told Pate, “you are to be pitied.” But none of this mitigated the seriousness of the crime: a soldier striking a woman, and worse, the Queen—”a lady entitled to the respect of the whole country by her virtues and her exalted position.” Cockburn and Huddleston had erred in considering that the judges might lessen the sentence out of pity for their client. Alderson, rather, threw the book at him, imposing the maximum sentence of seven years’ transportation—the longest time he could prevent Pate from doing mischief. Pate would not be subject to the “disgraceful punishment of whipping,” Alderson told him, because of “the station of your family and your own position.” Alderson’s turn of phrase here was unfortunate, leading several who read the trial in the newspapers the next day, including an angry member of Parliament, to conclude that the court had given Pate special treatment because of his social status. This was simply not the case, as the law was clear: whipping could not be added to a sentence of transportation; it could only be a humiliating addition to a shorter term of imprisonment. If whipping had been involved, Alexander Cockburn could have considered himself a winner in this his final case as Queen’s Counsel. Instead, he had lost, and had lost badly.