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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, *21]

being the only thing *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 *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 he 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.(6) During the other half-stage of childhood, approaching to puberty, from ten and a half to fourteen, they were ndeed 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 o'fences;(d) for, not having the command of bis fortune till twenty-one, he way is the capacity to do those things which tho

*22]

1 Hawk. P. C. 2 ( Inst. 3, 20, 10.

Ff. 29, 5, 14, 50, 17, 111, 47, 2 23. ) 11F C20, 21 22

[*23

law requires. But where there is any notorious breach of the peace, a rioty battery, or the like, (which infants, when full grown, are at least as liable as others to commit,) for these an infant, above *the 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, whon first the understanding might open ;(e) and from thence till the offender was fourteen it was ætas pubertati procima, 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 *to discern between good and evil.(h) And there was an instance in the last century where a boy of eight years old

[*24 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 consequince 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.'

II. The second case of a deficiency in will, which excuses from the guilt of criines, 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, (LL. Athelstun. Wilk. 65.

(*) 1 Hal. P. C. 26, 27. D) Mirr. c. 4, ê 16. 1 Hal. P. C. 27.

() Dalt. Just. c. 147. 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 ihere 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 master frojn the act.-CAITY.

(*) Emlyn on 1 Hal. P. C. 25.
() Foster, 72.

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therefore, idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities: no, not even for treason itself.(k)? 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 mako bis defence? If, after he be tried and found guilty, he loses his senses beforo 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 *25]

might have alleged *something in stay of judgment or execution.(1) In

deed, 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 pæna 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 he compos or not, this shall be tried by a jury. And if he be so found, a total

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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 Law. rence, J., 3 Burn, J. 24th ed. 312, 313.-CHITTY.

* 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 161. for neglect.

Section 38 authorizes the justices of the peace to call upon the overseers to bring any puor 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 charge able. 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 imprison. ment 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 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). 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.

t 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 *than as an excuse for any criminal misbehaviour. A drunkard, says Sir

[*26 Edward Coke,(r) who is voluntarius dæmon, 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 (°) 1 Hal. P. C. 31.

(") 1 Inst. 247. (P) Bro. Abr. tit. Corone, 101.

() Sp. L. b. 14, c. 10. (1) 17 Geo. II. c. 5.

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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.

* 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 ne was under the influence of a diseased mind, and was really unconscious, at the timo 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. În 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 en irresistible uncontrollable impulse. See Freeman vs. People, 4 Denio, 10. State 84. Spencer, 1 Zabriskie, 196. Com. vs. Masters, 4 Barr. 267. State vs. Gardiner, Wright's Ohio Rep.-SHARSWOOD.

cbriety which prompted him to commit it.(t) The Roman law, indeed, made great allowances for this vice: “per vinum delapsis capitalis pæna 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)'

IV. A fourth deficiency of will is whers a man commits an unlawful act boy misfortune or chance, and not by design. Here the will observes a total neucrality, 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 acci*27]

dental mischief *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 foresec 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)

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,(2) as it was of the Roman.(a)?

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

(9) Puff. L. of N. b. 8, c. 3.

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(*) Ff. 19, 16, 6.
(w) Plowd. 19.
(*)1 Hal. P. C. 39.

(*) Cro. Car. 638.
() Plowd. 343.
(a) Ff. 22, 6, 9.

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"As drunkenness clouds the understanding and excites passion, it may be evidence of Wassion 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 scber. 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.

• 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 maluin pro kibitum ; 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.

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 modj. fications 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 evitando agitur, non nocet : ubi de lucro captando, nocet : error facti neutro casu nocet.Minoribus 25 annis

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