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CHAPTER II.: OF THE PERSONS CAPABLE OF COMMITTING CRIMES. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
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OF THE PERSONS CAPABLE OF COMMITTING CRIMES.
Having in the preceding chapter considered in general the nature of crimes and punishments, we are led next, in the order of our distribution, to inquire what persons are or are not capable of committing crimes; or, which is all one, who are exempted from the censures of the law upon the commission of those acts which, in other persons, would be severely punished. In the process of which inquiry, we must have recourse to particular and special exceptions; for the general rule is, that no person shall be excused from punishment for disobedience to the laws of his country, excepting such as are expressly defined and exempted by the laws themselves.
All the several pleas and excuses which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto may be reduced to this single consideration, the want or defect of will. An involuntary act, as it has no claim to merit, so neither can it induce any guilt: the concurrence of the will, when it has its choice either to do or to avoid the fact in question, being the only thing **21]that renders human actions either praiseworthy or culpable. Indeed, to make a complete crime cognizable by human laws, there must be both a will and an act. For, though, in foro conscientiæ, a fixed design or will to do an unlawful act is almost as heinous as the commission of it, yet, as no temporal tribunal can search the heart or fathom the intentions of the mind, otherwise than as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know. For which reason, in all temporal jurisdictions, an overt act, or some open evidence of an intended crime, is necessary, in order to demonstrate the depravity of the will, before the man is liable to punishment. And, as a vicious will without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no crime at all. So that, to constitute a crime against human laws, there must be first, a vicious will; and, secondly, an unlawful act consequent upon such vicious will.
Now, there are three cases in which the will does not join with the act 1. Where there is a defect of understanding. For where there is no discernment there is no choice, and where there is no choice there can be no act of the will, which is nothing else but a determination of one’s choice to do or to abstain from a particular action: he, therefore, that has no understanding can have no will to guide his conduct. 2. Where there is understanding and will sufficient residing in the party, but not called forth or exerted at the time of the action done; which is the case of all offences committed by chance or ignorance. Here the will sits neuter, and neither concurs with the act nor disagrees to it. 3. Where the action is constrained by some outward force and violence. Here the will counteracts the deed, and is so far from concurring with, that it loathes and disagrees to, what the man is obliged to perform. It will be the business of the present chapter briefly to consider all the several species of defect in will, as they fall under some one or other of these general heads: as infancy, idiocy, lunacy, and intoxication, which fall under the first class; misfortune and ignorance, which **22]may be referred to the second; and compulsion or necessity, which may properly rank in the third.
I. First we will consider the case of infancy, or nonage, which is a defect of the understanding. Infants under the age of discretion ought not to be punished by any criminal prosecution whatever.(a) What the age of discretion is, in various nations, is matter of some variety. The civil law distinguished the age of minors, or those under twenty-five years old, into three stages: infantia, from the birth till seven years of age; pueritia, from seven to fourteen; and pubertas, from fourteen upwards. The period of pueritia, or childhood, was again subdivided into two equal parts: from seven to ten and a half was ætas infantiæ proxima; from ten and a half to fourteen was ætas pubertati proxima. During the first stage of infancy and the next half-stage of childhood, infantiæ proxima, they were not punishable for any crime.(b) During the other half-stage of childhood, approaching to puberty, from ten and a half to fourteen, they were indeed punishable, if found to be doli capaces, or capable of mischief, but with many mitigations, and not with the utmost rigour of the law.(c) During the last stage, (at the age of puberty, and afterwards,) minors were liable to be punished, as well capitally as otherwise.
The law of England does in some cases privilege an infant under the age of twenty-one, as to common misdemeanours, so as to escape fine, imprisonment, and the like: and particularly in cases of omission, as not repairing a bridge, or a highway, and other similar offences;(d) for, not having the command of his fortune till twenty-one, he wants the capacity to do those things which the law requires. But where there is any notorious breach of the peace, a riot, battery, or the like, (which infants, when full grown, are at least as liable as others to commit,) for these an infant, above *[*23the age of fourteen, is equally liable to suffer as a person of the full age of twenty-one.
With regard to capital crimes, the law is still more minute and circumspect; distinguishing with greater nicety the several degrees of age and discretion. By the antient Saxon law, the age of twelve years was established for the age of possible discretion, when first the understanding might open;(e) and from thence till the offender was fourteen it was ætas pubertati proxima, in which he might or might not be guilty of a crime, according to his natural capacity or incapacity. This was the dubious stage of discretion: but under twelve it was held that he could not be guilty in will, neither after fourteen could he be supposed innocent, of any capital crime which he in fact committed. But by the law, as it now stands, and has stood at least ever since the time of Edward the Third, the capacity of doing ill, or contracting guilt, is not so much measured by years and days as by the strength of the delinquent’s understanding and judgment. For one lad of eleven years old may have as much cunning as another of fourteen; and in these cases our maxim is, that “malitia supplet ætatem.” Under seven years of age, indeed, an infant cannot be guilty of felony,(f) for then a felonious discretion is almost an impossibility in nature; but at eight years old he may be guilty of felony.(g) Also, under fourteen, though an infant shall be prima facie adjudged to be doli incapax, yet if it appear to the court and jury that he was doli capax, and could discern between good and evil, he may be convicted and suffer death. Thus a girl of thirteen has been burned for killing her mistress: and one boy of ten, and another of nine years old, who had killed their companions, have been sentenced to death, and he of ten years actually hanged; because it appeared, upon their trials, that the one hid himself, and the other hid the body he had killed, which hiding manifested a consciousness of guilt, and a discretion *[*24to discern between good and evil.(h) And there was an instance in the last century where a boy of eight years old was tried at Abingdon for firing two barns; and, it appearing that he had malice, revenge, and cunning, he was found guilty, condemned, and hanged accordingly.(i) Thus, also, in very modern times, a boy of ten years old was convicted on his own confession of murdering his bedfellow, there appearing in his whole behaviour plain tokens of a mischievous discretion; and, as the sparing this boy merely on account of his tender years might be of dangerous consequence to the public by propagating a notion that children might commit such atrocious crimes with impunity, it was unanimously agreed by all the judges that he was a proper subject of capital punishment.(j) But, in all such cases, the evidence of that malice which is to supply age ought to be strong and clear beyond all doubt and contradiction.1
II. The second case of a deficiency in will, which excuses from the guilt of crimes, arises also from a defective or vitiated understanding, viz., in an idiot or a lunatic. For the rule of law as to the latter, which may easily be adapted also to the former, is, that “furiosus furore solum punitur.” In criminal cases, therefore, idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities: no, not even for treason itself.(k)2 Also, if a man in his sound memory commits a capital offence, and before arraignment for it he becomes mad, he ought not to be arraigned for it, because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if after judgment he becomes of nonsane memory, execution shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged **25]something in stay of judgment or execution.(l) Indeed, in the bloody reign of Henry the Eighth a statute was made,(m) which enacted that if a person, being compos mentis, should commit high treason, and after fall into madness, he might be tried in his absence, and should suffer death, as if he were of perfect memory. But this savage and inhuman law was repealed by the statute 1 & 2 Ph. & M. c. 10. For, as is observed by Sir Edward Coke,(n) “the execution of an offender is for example, ut pœna ad paucos, metus ad omnes perveniat: 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.” But if there be any doubt whether the party be compos or not, this shall be tried by a jury.3 And if he be so found, a total idiocy, or absolute insanity, excuses from the guilt, and of course from the punishment, of any criminal action committed under such deprivation of the senses: but, if a lunatic hath lucid intervals of understanding, he shall answer for what he does in those intervals, as if he had no deficiency.(o)4 Yet, in the case of absolute madmen, as they are not answerable for their actions, they should not be permitted the liberty of acting, unless under proper control; and, in particular, they ought not to be suffered to go loose, to the terror of the king’s subjects. It was the doctrine of our antient law, that persons deprived of their reason might be confined till they recovered their senses,(p) without waiting for the forms of a commission or other special authority from the crown: and now, by the vagrant acts,(q) a method is chalked out for imprisoning, chaining, and sending them to their proper homes.
III. Thirdly: as to artificial, voluntarily contracted madness, by drunkenness or intoxication, which, depriving men of their reason, puts them in a temporary frenzy: our law looks upon this as an aggravation of the offence, rather *[*26than as an excuse for any criminal misbehaviour. A drunkard, says Sir Edward Coke,(r) who is voluntarius dœmon, hath no privilege thereby; but what hurt or ill soever he doth, his drunkenness doth aggravate it: nam omne crimen ebrietas, et incendit, et detegit. It hath been observed that the real use of strong liquors, and the abuse of them by drinking to excess, depend much upon the temperature of the climate in which we live. The same indulgence which may be necessary to make the blood move in Norway would make an Italian mad. A German, therefore, says the president Montesquieu,(s) drinks through custom, founded upon constitutional necessity; a Spaniard drinks through choice, or out of the mere wantonness of luxury: and drunkenness, he adds, ought to be more severely punished where it makes men mischievous and mad, as in Spain and Italy, than where it only renders them stupid and heavy, as in Germany and more northern countries. And, accordingly, in the warm climate of Greece, a law of Pittacus enacted “that he who committed a crime when drunk should receive a double punishment;” one for the crime itself, and the other for the obriety which prompted him to commit it.(t) The Roman law, indeed, made great allowances for this vice: “per vinum delapsis capitalis pœna remittitur.”(u) But the law of England, considering how easy it is to counterfeit this excuse, and how weak an excuse it is, (though real,) will not suffer any man thus to privilege one crime by another.(w)5
IV. A fourth deficiency of will is where a man commits an unlawful act by misfortune or chance, and not by design. Here the will observes a total neutrality, and does not co-operate with the deed; which therefore wants one main ingredient of a crime. Of this, when it affects the life of another, we shall find more occasion to speak hereafter, at present only observing that, if any accidental mischief **27]happens to follow from the performance of a lawful act, the party stands excused from all guilt; but if a man be doing any thing unlawful, and a consequence ensues which he did not foresee or intend, as the death of a man, or the like, his want of foresight shall be no excuse; for, being guilty of one offence in doing antecedently what is in itself unlawful, he is criminally guilty of whatever consequence may follow the first misbehaviour.(x)6
V. Fifthly: ignorance or mistake is another defect of will; when a man, intending to do a lawful act, does that which is unlawful. For here, the deed and the will acting separately, there is not that conjunction between them which is necessary to form a criminal act. But this must be an ignorance or mistake of fact, and not an error, in point of law. As if a man, intending to kill a thief or housebreaker in his own house, by mistake kills one of his own family, this is no criminal action;(y) but if a man thinks he has a right to kill a person excommunicated or outlawed wherever he meets him, and does so, this is wilful murder. For a mistake in point of law, which every person of discretion not only may but is bound and presumed to know, is in criminal cases no sort of defence. Ignorantia juris, quod quisque tenetur scire, neminem excusat, is as well the maxim of our own law,(z) as it was of the Roman.(a)7
VI. A sixth species of defect of will is that arising from compulsion and inevitable necessity. These are a constraint upon the will whereby a man is urged to do that which his judgment disapproves; and which, it is to be presumed, his will (if left to itself) would reject. As punishments are therefore only inflicted for the abuse of that free will which God has given to man, it is highly just and equitable that a man should be excused for those acts which are done through unavoidable force and compulsion.
*[*281. Of this nature, in the first place, is the obligation of civil subjection, whereby the inferior is constrained by the superior to act contrary to what his own reason and inclination would suggest; as when a legislator establishes iniquity by a law and commands the subject to do an act contrary to religion or sound morality. How far this excuse will be admitted in foro conscientiæ, or whether the inferior in this case is not bound to obey the divine rather than the human law, it is not my business to decide; though the question, I believe, among the casuists, will hardly bear a doubt. But, however that may be, obedience to the laws in being is undoubtedly a sufficient extenuation of civil guilt before the municipal tribunal. The sheriff who burned Latimer and Ridley, in the bigoted days of queen Mary, was not liable to punishment from Elizabeth for executing so horrid an office; being justified by the commands of that magistracy, which endeavoured to restore superstition under the holy auspices of its merciless sister, persecution.
As to persons in private relations: the principal case, where constraint of a superior is allowed as an excuse for criminal misconduct, is with regard to the matrimonial subjection of the wife to her husband; for neither a son nor a servant are excused for the commission of any crime, whether capital or otherwise, by the command or coercion of the parent or master;(b) though in some cases the command or authority of the husband, either expressed or implied, will privilege the wife from punishment even for capital offences. And therefore if a woman commit theft, burglary, or other civil offences against the laws of society by the coercion of her husband; or even in his company, which the law construes a coercion; she is not guilty of any crime; being considered as acting by compulsion and not of her own will.(c)8 Which doctrine is at least a thousand years old in this kingdom, being to be found among the laws of king *[*29Ina, the West Saxon.(d) And it appears that among the northern nations on the continent this privilege extended to any woman transgressing in concert with a man, and to any servant that committed a joint offence with a freeman; the male or freeman only was punished, the female or slave dismissed: “procul dubio quod alterum libertas, alterum necessitas impelleret.”(e) But (besides that in our law, which is a stranger to slavery, no impunity is given to servants, who are as much free agents as their masters) even with regard to wives, this rule admits of an exception in crimes that are mala in se, and prohibited by the law of nature, as murder and the like:9 not only because these are of a deeper dye, but also, since in a state of nature no one is in subjection to another, it would be unreasonable to screen an offender from the punishment due to natural crimes by the refinements and subordinations of civil society. In treason, also, (the highest crime which a member of society can as such be guilty of,) no plea of coverture shall excuse the wife; no presumption of the husband’s coercion shall extenuate her guilt:(f) as well because of the odiousness and dangerous consequences of the crime itself, as because the husband, having broken through the most sacred tie of social community by rebellion against the state, has no right to that obedience from a wife, which he himself as a subject has forgotten to pay. In inferior misdemeanours also we may remark another exception: that a wife may be indicted, and set in the pillory with her husband, for keeping a brothel;10 for this is an offence touching the domestic economy or government of the house, in which the wife has a principal share; and is also such an offence as the law presumes to be generally conducted by the intrigues of the female sex.(g)11 And in all cases where the wife offends alone, without the company or coercion of her husband, she is responsible for her offence as much as any feme-sole.
**30]2. Another species of compulsion or necessity is what our law calls duress per minas;(h) or threats and menaces which induce a fear of death or other bodily harm, and which take away for that reason the guilt of many crimes and misdemeanours; at least, before the human tribunal. But then that fear which compels a man to do an unwarrantable action ought to be just and well grounded, such “qui cadere possit in virum constantem, non timidum, et meticulosum,” as Bracton expresses it(i) in the words of the civil law.(k) Therefore, in time of war or rebellion, a man may be justified in doing many treasonable acts by compulsion of the enemy or rebels which would admit of no excuse in time of peace.(l)12 This, however, seems only, or at least principally, to hold as to positive crimes, so created by the laws of society, and which therefore society may excuse; but not as to natural offences so declared by the law of God, wherein human magistrates are only the executioners of divine punishment. And therefore, though a man be violently assaulted, and hath no other possible means of escaping death but by killing an innocent person, this fear and force shall not acquit him of murder; for he ought rather to die himself than escape by the murder of an innocent.(m) But, in such a case, he is permitted to kill the assailant; for there the law of nature, and self-defence, its primary canon, have made him his own protector.
3. There is a third species of necessity, which may be distinguished from the actual compulsion of external force or fear; being the result of reason and reflection which act upon and constrain a man’s will, and oblige him to do an action which, without such obligation, would be criminal. And that is, when a man has his choice of two evils set before him, and being under a necessity of choosing one, he chooses the *[*31least pernicious of the two. Here the will cannot be said freely to exert itself, being rather passive than active; or, if active, it is rather in rejecting the greater evil than in choosing the less. Of this sort is that necessity where a man by the commandment of the law is bound to arrest another for any capital offence, or to disperse a riot, and resistance is made to his authority: it is here justifiable, and even necessary, to beat, to wound, or perhaps to kill the offenders, rather than permit the murderer to escape, or the riot to continue. For the preservation of the peace of the kingdom, and the apprehending of notorious malefactors, are of the utmost consequence to the public; and therefore excuse the felony which the killing would otherwise amount to.(n)
4. There is yet another case of necessity, which has occasioned great speculation among the writers upon general law; viz., whether a man in extreme want of food or clothing may justify stealing either, to relieve his present necessities? And this both Grotius(o) and Puffendorf,(p) together with many other of the foreign jurists, hold in the affirmative; maintaining, by many ingenious, humane, and plausible reasons, that in such cases the community of goods, by a kind of tacit confession of society, is revived. And some even of our own lawyers have held the same,(q) though it seems to be an unwarranted doctrine, borrowed from the notions of some civilians; at least it is now antiquated, the law of England admitting no such excuse at present.(r) And this its doctrine is agreeable not only to the sentiments of many of the wisest antients, particularly Cicero,(s) who holds that “suum cuique incommodum ferendum est, potius quam de alterius commodis detrahendum,” but also to the Jewish law, as certified by king Solomon himself:(t) “If a thief steal to satisfy his soul when he is hungry, he shall restore *[*32sevenfold, and shall give all the substance of his house:” which was the ordinary punishment for theft in that kingdom. And this is founded upon the highest reason: for men’s properties would be under a strange insecurity if liable to be invaded according to the wants of others, of which wants no man can possibly be an adequate judge but the party himself who pleads them. In this country especially there would be a peculiar impropriety in admitting so dubious an excuse; for by our laws such sufficient provision is made for the poor by the power of the civil magistrate, that it is impossible that the most needy stranger should ever be reduced to the necessity of thieving to support nature. This case of a stranger is, by the way, the strongest instance put by baron Puffendorf, and whereon he builds his principal arguments: which, however they may hold upon the continent, where the parsimonious industry of the natives orders every one to work or starve, yet must lose all their weight and efficacy in England, where charity is reduced to a system and interwoven in our very constitution. Therefore our laws ought by no means to be taxed with being unmerciful for denying this privilege to the necessitous; especially when we consider that the king, on the representation of his ministers of justice, hath a power to soften the law and to extend mercy in cases of peculiar hardship. An advantage which is wanting in many states, particularly those which are democratical; and these have, in its stead, introduced and adopted in the body of the law itself a multitude of circumstances tending to alleviate its rigour. But the founders of our constitution thought it better to vest in the crown the power of pardoning particular objects of compassion than to countenance and establish theft by one general undistinguishing law.
VII. To these several cases, in which the incapacity of committing crimes arises from a deficiency of the will, we may add one more, in which the law supposes an incapacity of doing wrong, from the excellence and perfection of the *[*33person; which extend as well to the will as to the other qualities of his mind. I mean the case of the king; who, by virtue of his royal prerogative, is not under the coercive power of the law;(u) which will not suppose him capable of committing a folly, much less a crime. We are therefore, out of reverence and decency, to forbear any idle inquiries of what would be the consequence if the king were to act thus and thus: since the law deems so highly of his wisdom and virtue as not even to presume it possible for him to do any thing inconsistent with his station and dignity; and therefore has made no provision to remedy such a grievance. But of this sufficient was said in a former volume,(v) to which I must refer the reader.
[(a) ] 1 Hawk. P. C. 2.
[(b) ] Inst. 3, 20, 10.
[(c) ]Ff. 29, 5, 14, 50, 17, 111, 47, 2, 23.
[(d) ] 1 H P. C. 20, 21, 22.
[(e) ]LL. Athelstun. Wilk. 65.
[(f) ] Miri. c. 4, 16. 1 Hal. P. C. 27.
[(g) ] Dalt Just. c. 147.
[(h) ] 1 Hal. P. C. 26, 27.
[(i) ] Emlyn on 1 Hal. P. C. 25.
[(j) ] Foster, 72.
[1 ] Where an act is made felony or treason, it extends as well to infants, if above the age of fourteen, as to others, (see Co. Litt. 247. Hal. Hist. P. C. 21, 22;) and this appears by several acts of parliament, as by 1 Jac. I. ch. 11, of felony for marrying two wives, where there is a special exception of marriages below the age of consent,—which in females is twelve and males fourteen; so that if the marriage were above the age of consent, though within the age of twenty-one years, it is not exempted from the penalty. See Bing. on Inf. 99, 190. So, by the 21 Hen. VIII. c. 7, concerning felony, by servants that embezzl, their masters’ goods delivered to them, there is a special proviso that it shall not extend to servants under the age of eighteen, who certainly would have been within the penalty if above the age of fourteen, though under eighteen years, unless thus excluded by a special proviso. Hale, Hist. P. C. 22. So the 12 Anne, c. 7, for punishing robberies in dwelling-houses, excepts apprentices under the age of fifteen who shall rob their masters from the act.—Chitty.
[(k) ] 3 Inst. 6.
[2 ] It is not every frantic and idle humour of a man that will exempt him from justice and the punishment of the law. When a man is guilty of a great offence, it must be very plain and clear before he is allowed such an exemption on the ground of lunacy: therefore it is not something unaccountable in a man’s actions that points him out to be such a madman as is to be exempted from punishment. It must be a man that is totally deprived of his understanding and memory; one who doth not know what he is doing any more than an infant or a wild beast: it is only such a one who is never the object of punishment. 16 How. St. Tr. 764. If there be a total want of reason, it will acquit the prisoner; if there be an absolute temporary want of it when the offence was committed, it will acquit the prisoner; but if there be only a partial degree of insanity, mixed with a partial degree of reason, not a full and complete use of reason, (as lord Hale carefully and emphatically expresses himself,) but a competent use of it, sufficient to have restrained those passions which produce the crime,—if there be thought and design, a faculty to distinguish the nature of actions, to discern the difference between moral good and evil,—then, upon the fact of the offence proved, the judgment of the law must take place. Per Yorke, Solicitor-General in Lord Ferrer’s case, 19 How. St. Tr. 947, 948; et per Lawrence, J., 3 Burn, J. 24th ed. 312, 313.—Chitty.
[(l) ] 1 Hal. P. C. 34.
[(m) ] 33 Hen. VIII. c. 20.
[(n) ] 3 Inst. 6.
[3 ] The most of the previous acts are now repealed, by 9 Geo. IV. c. 40, which enacts, in section 36, that justices at their petty sessions, held next after the 15th day of August in every year, shall call upon the overseers to make returns of insane persons, under a penalty of 16l. for neglect.
Section 38 authorizes the justices of the peace to call upon the overseers to bring any poor person deemed to be insane before two justices, who, upon due examination, may cause the party to be sent to the lunatic-asylum or licensed house, and make an order for his allowance,—no person to be removed unless under a justice’s order, or, when cured, overseers are to deliver to the keeper a certificate of examination.
By section 44, persons wandering about, deemed to be insane, though not chargeable, two justices may make an order for maintenance, as in cases of persons actually chargeable. If the estate of the party shall be sufficient, overseers may recover their expenses by levy.
By section 55, persons convicted of any offence becoming insane whilst under imprisonment may be removed by an order of the secretary of state to any county asylum; and, if they should recover before the time of their imprisonment shall have expired, they may be remanded to prison: so, if their imprisonment shall have expired, they are to be discharged.
By section 56, the visitors of county asylums are directed to prepare annual reports of the patients confined therein, and to furnish the secretary of state and the clerk to the commissioners, under 9 Geo. IV. c. 41, with a copy.
Vide also 9 Geo. IV. c. 41, entitled “An Act to regulate the Care and Treatment of Insane Persons in England,” which, by section 21, makes it a misdemeanour in the keeper or other superintendent of any licensed house concealing any insane person from the inspection of the commissioners or visitors.
An idiot, or person born deaf and dumb, or any one who is non compos at the time, cannot be an approver, (H. P. C. 282, 5, vol. 2;) but if he who wants discretion commit a trespass against the person or possession of another, he shall be compelled in a civil action to give satisfaction for the damage. Id. vols. 1 and 3, s. 5. 3 Bac. Abr. 131. So he who invites a madman to commit murder or other crime is a principal offender, and as much punishable as if he had done it himself. Id. 4, s. 7. 1 Hale, 647.
See also 10 Geo. IV. c. 18.—Chitty.
[(o) ] 1 Hal. P. C. 31.
[4 ] And if to a charge of treason (or, it is presumed, any other crime) the defence set up be insanity, the question for the jury will be, Whether the prisoner was labouring under that species of insanity which satisfies them that he was quite unaware of the nature, character, and consequences of the act he was committing, or, in other words, whether he was under the influence of a diseased mind, and was really unconscious, at the time he was committing the act, that it was a crime. Reg. vs. Oxford, 9 C. & P. 525; and see the case of Reg. vs. McNaughton, tried at the Central Criminal Court, in March, 1843, and the opinions of the judges arising out of that case, delivered in the house of lords on the 19th of June, 1843.—Stewart.
See the opinions of the judges referred to in the above note given at large in Wharton’s American Criminal Law, 86. In Com. vs. Rogers, 7 Metcalf, 500, it was held that a person is not responsible for any criminal act he may commit, if by reason of mental infirmity he is incapable of distinguishing between right and wrong in regard to the particular act and of knowing the act itself will subject him to punishment; or has no will, no conscience, or controlling mental power; or has not sufficient power of memory to recollect the relations in which he stands to others and in which they stand to him; or has his reason, conscience, and judgment so overwhelmed by the violence of his disease as to act from an irresistible and uncontrollable impulse. See Freeman vs. People, 4 Denio, 10. State vs. Spencer, 1 Zabriskie, 196. Com. vs. Masters, 4 Barr. 267. State vs. Gardiner, Wright’s Ohio Rep.—Sharswood.
[(p) ] Bro. Abr. tit. Corone, 101.
[(q) ] 17 Geo. II. c. 5.
[(r) ] 1 Inst. 247.
[(s) ] Sp. L. b. 14, c. 10.
[(t) ] Puff. L. of N. b. 8, c. 3.
[(u) ]Ff. 49, 16, 6.
[(w) ] Plowd. 19.
[5 ] As drunkenness clouds the understanding and excites passion, it may be evidence of passion only and of want of malice and design, (Pennsylvania vs. McFall, Addison, 257;) and, if it be satisfactorily established, it may lower the grade of homicide from murder in the first to murder in the second degree. Haile vs. State, 11 Humph. 154. It may also be taken into consideration in cases where what the law deems sufficient provocation has been given, because the question is, in such cases, whether the fatal act is to be attributed to the passion of anger excited by the previous provocation; and that passion is more easily excitable in a person when in a state of intoxication than when he is sober. R. vs. Thomas, 7 C. & P. 817. R. vs. Pearson, 2 Lewin, 144. If indeed there is really a previous determination to resent a slight affront in a barbarous manner, the state of drunkenness in which the prisoner was ought not to be regarded. And see R. vs. Marshall, 1 Lewin, 76. State vs. McCauts, 1 Spear, 384. Wharton’s Amer. Crim. Law, 93.—Sharswood.
[(x) ] 1 Hal. P. C. 39.
[6 ] But a very important distinction is made in such cases,—viz., whether the unlawful act is also in its original nature wrong and mischievous; for a person is not answerable for the accidental consequences, though fatal, of an act which is merely a malum prohibunm; as, where any unfortunate accident happens from an unqualified person being in pursuit of game, he is amenable only to the same extent as a man duly qualified. Fost. 259. 2 Hal. P. C. 475.—Christian.
[(y) ] Cro. Car. 538.
[(z) ] Plowd. 19.
[(a) ]Ff. 22, 6, 9.
[7 ] “Ignorance of the law, which every man is bound to know, excuses no man.” It may be a ground for pardon. Rex vs. Bailey, R. & R. C. C. 1. The rule is borrowed from the civil law, (D. lib. 22, tit. 6,) without, however, adopting with it those equitable modifications by which the rule was originally accompanied, some of which it may be proper to state. “Juris ignorantia non prodest adquirere volentibus, suum vero petentibus non nocet,” (D. 22, 6, 7;) or, as it is expressed by the commentators, “Juris error, ubi de damno extando agitur, non nocet: ubi de lucro captando, nocct: error facti neutro casu nocet.” “Minoribus 25 annis jus ignorare permissum est: quod et in fœminis in quibusdam causis propter sexus infirmitatem dicitur et ideo, sicubi non est delictum, sed juris ignorantia, non lœduntur.” D. 22, 6, 9. And see Pothier, Traité de l’Action, Condictio indebiti, part 2, sect. 2, art. 3. In Vernon’s case (Mich. 20 Hen. VII. fol. 2, pl. 4) the defendants justified taking away the plaintiff’s wife, on the ground that they were accompanying her to Westminster, to sue for a divorce in case of her conscience. It was objected to the plea that the defendants ought to have taken her to the ordinary or the metropolitan; but the plea was held good, “for perhaps they had not knowledge of the law as to where the divorce should be sued.” And see Manser’s case, 2 Co. Rep. 4. Doctor and Student, book 2, cap. 46, 47. Eichhorn vs. Le Maitre, 2 Wils. 368.—Chitty.
[(b) ] 1 Hawk. P. C. 3.
[(c) ] 1 Hal. P. C. 45.
[8 ] The husband, however, must be present when the offence is committed, or the presumption of coercion by him does not arise. Rex vs. Morris, R. & R. C. C. 270. The wife is not treated as an accessory to a felony for receiving her husband who has been guilty of it, though, on the contrary, it appears the husband would be for receiving his wife. H. P. C. vol. 1, s. 10. 1 Hale, 44. And if an offence be committed by the wife alone, without the husband’s concurrence, she may be punished by way of indictment without him. Id.; and see Moor, 813.—Chitty.
[(d) ] Cap. 57.
[(e) ] Stiern. de jure Sueon. l. 2, c. 4.
[9 ] The law seems to protect the wife in all felonies committed by her in company with her husband, except murder and manslaughter. Hal. P. C. 47.—Christian.
[(f) ] 1 Hal. P. C. 47.
[10 ] The punishment of the pillory was abolished, by 56 Geo. III. c. 138.—Stewart.
[(g) ] 1 Hawk. P. C. 2, 3.
[11 ] In all misdemeanours it appears that the wife may be found guilty with the husband. It is said the reason why she was excused in burglary, larceny, &c. was because she could not tell what property the husband might claim in the goods. 10 Mod. 63 and 335. But the better reason seems to be that by the ancient law the husband had the benefit of the clergy, if he could read, but in no case could women have that benefit. It would therefore have been an odious proceeding to have executed the wife and to have dismissed the husband with a slight punishment. To avoid this, it was thought better that in such cases she should be altogether acquitted; but this reason did not apply to misdemeanours.—Christian.
[(h) ] See book 1. p. 131.
[(i) ]L. 2, f. 16.
[(k) ]Ff. 4, 2, 5, and 6.
[(l) ] 1 Hal. P. C. 50.
[12 ] The fear of having houses burned, or goods spoiled, is no excuse in the eye of the law for joining and marching with rebels. The only force that doth excuse is a force upon the person and present fear of death; and this force and fear must continue all the time the party remains with the rebels. It is incumbent upon men who make force their defence to show an actual force, and that they joined pro timore mortis et recesserunt quam cito potuerunt. Fost. 14, 216.—Christian.
[(m) ] Ibid. 51.
[(n) ] 1 Hal. P. C. 52.
[(o) ]De jure, b. & p. l. 2, c. 2.
[(p) ] L. of Nat. and N. 1, 2, c. 6.
[(q) ] Britton c. 10. Mirr. c. 4, 16.
[(r) ] 1 Hal. P. C. 54.
[(s) ]De off. l. 3, 6, 5.
[(t) ] Prov. vi. 30.
[(u) ] 1 Hal. P. C. 44.
[(v) ] Book i. ch. 7. page 244.