CHAPTER II. 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 that renders human action either praise worthy or culpable. Indeed, to make a complete crime cognizable by [*21] 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 and 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 loaths 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; [ *22] 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 discre (a) 1 Hawk. P C. 2. 22 PERSONS CAPABLE OF COMMITTING CRIMES. [Book IV. tion 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 an half was ætas infantiæ proxima, from ten and an half to fourteen, was ætas pubertati proxima. During the first stage of infancy, and the next half stage of childhood, infantia proxima, they were not punishable for any crime. (b) During the other half stage of childhood, approaching to puberty, from ten and an 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 misdemeanors, 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 until 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 rict, 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 [*23] equally liable to suffer, as a person of the full age of twenty-one. (1) See upon this subject, State v. Goin, 9 Humph., 175; People v. Randolph, 2 Park. C. R., 174; Commonwealth v. Green, 2 Pick., 380. A male child under the age of fourteen is supposed incapable of committing a rape; but in Ohio it has been decided that this is but a presumption which may be overcome by evidence of maturity. Williams v. State, 14 Ohio, 222. So he may be convicted of an assault with intent to commit a rape. People v. Randolph, 2 Park. Č. R., 174. An infant is liable civilly for his torts. Humphrey v. Douglass, 10 Vt., 71; Bullock v. Babcock, 3 Wend., 391; Neal v. Gillett, 23 Conn., 437 And this even though under fourteen years of age. Huchting v. Engel, 17 Wis., 230. 1 1 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 was tried at Abingdon [*24] 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 bed fellow, 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. 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 idio 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 case! 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 loser his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of non-sane memory, execution shall be stayed: for per adventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged *something in stay of judgment or execution. () Indeed, in the bloody reign of Henry the Eighth, a [*25] 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. this savage and inhuman law was repealed by the statute 1 and 2 P. and M., c. 10. For, as is observed by Sir Edward Coke, (n) "the execution of an offender is for example, ut poena ad paucos, metus ad omnes perveniat: but so it is not But (2) As to the degree of mental unsoundness which shall excuse a person from punishment for his acts, the works on medical jurisprudence and insanity will need to be consulted, and the case of Freeman v. People, 4 Denio, 9, and the trial of Huntington, will be found instructive, though they will probably leave upon the mind a painful sense of the difficulties surrounding this whole subject, and the impossibility of laying down definitions and abstract rules which can be easily and safely applied in practice. See also McNaughton's Case, 10 Cl. & Fin., 200. As to the burden of proof when the defense of insanity is made to a criminal prosecution, see Clark v. State, 12 Ohio, 483, 494; Locffner v. State, 10 Ohio St., 598; Bond v. State, 23 Ohio St., 349; State v. Felter, 32 Iowa. 49; McKenzie v. State, 42 Ga., 334; Boswell v. Commonwealth, 20 Gratt., 860; Baccigalupo v. Commonwealth, 33 Gratt., 807; S. C., 36 Am. Rep., 795; State v. Hoyt, 47 Conn., 581; Wright v. People, 4 Neb., 407; State v. Pratt, 1 Houst. C. C., 249; Boswell v. State, 63 Ala., 307; S. C., 35 Am. Rep., 20; State v. Redemeier, 71 Mo., 173; S. C., 36 Am. Rep., 462; Webb v. State, 9 Tex. App., 490; Johnson v. State, 10 Tex. App., 571; State v. Coleman, 27 La. Ann., 691; State v. Strauder, 11 W. Va., 745, 823; Ortwein v. Commonwealth, 76 Penn. St., 414; S. C., 18 Am. Rep., 420; State v. Smith, 53 Mo., 267; People v. McDonell, 47 Cal., 134; Commonwealth v. Eddy, 7 Gray, 583; Polk v. State, 19 Ind., 170; Chase v. People, 40 Ill., 352; Stevens v. State, 31 Ind., 485; People v. Schryver, 42 N. Y., 1; State v. Pike, 49 N. H., 399; State v. Jones, 50 N. H., 369; People v. Garbutt, 17 Mich., 9; People v. Finley, 38 Mich., 482; Hopps v. People, 31 Ill, 385; State v. Klinger, 43 Mo., 127; State v. Crawford, 11 Kan., 82; Cunningham v. State, 56 Miss., 269; S. C., 31 Am. Rep., 360. 289 VOL. II.-37 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 jury. 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) 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 ancient law, that persons deprived of their reason might be confined till they recover 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 [*26] Sir 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 ebriety 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. (20) (3) (0) 1 Hal. P. C. 31. (p) Bro. Abr. t., Corone, 101. (t) Puff. L. of N. b. 8, c. 3. (q) 17 Geo. II, c. 5. (u) FJ. 49. 16. 6. (r) 1 Inst. 247. (w) Plowd. 19. (8) Sp. L. b. 14, c. 10. (3) A man who, by means of intoxication, voluntarily puts himself in condition to have no control of his actions, must be held to intend the consequences. The safety of the community requires this rule. Intoxication is so easily counterfeited, and when real it is so often resorted to as a means of nerving the person up to the commission of some desperate act, that the law cannot recognize it as an excuse for the commission of crime. U. S. v. Drew, 5 Mason, 28; Pirtle v. State, 9 Humph., 663 Commonwealth v. Hawkins, 3 Gray, 463; People v. Garbutt, 17 Mich., 9. Choice v. State, 31 Geo., 424; State v. Avery, 44 Ñ. H., 392. Nevertheless, the drunkenness of the party is often an important consideration in criminal cases, where the guilty knowledge or intent constitutes the principal ingredient of the crime, so as to make the peculiar state and condition of the criminal's mind at the time, with reference to the act done, the important subject of inquiry. See Swan v. State, 4 Humph., 136; U. S. v. Roudenbush, 1 Bald., 517; Roberts v. People, 19 Mich., 401; Kelley v. State, 3 S. and M., 518. As in the case of passing counterfeit money: Pigman v. State, 14 Ohio, 555; or the appropriation of another's property which might be larceny or a trespass merely, according as the specific intent to steal was present or absent. Rex v. Pitman, 2 C. and P., 423. See further, O'Herrin v. State, 14 Ind., 420; State v. Cross, 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 *happens to follow from the performance of a lawful act, the party stands excused from all guilt; but if a man be [*27] 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) 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 house breaker 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) (4) VI. A sixth species of defect of will is that arising from compulsion and inevitable necessity. These are 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. *1. Of this nature, in the first place, is the obligation of civil subjec- [*28] tion, 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 (z) Plowd. 843. (a) Ff. 22. 6. 9. (x) 1 Hal. P. C. 39. (y) Cro. Car. 538. 27 Mo., 332; Golden v. State, 25 Geo., 527; Mooney v. State, 33 Ala., 419; Regina v. Cruse 8 C. and P., 541; State v. Garvey, 11 Minn., 154; People v. Harris, 29 Cal., 678; Bailey v. State, 26 Ind., 422; State v. Schingen, 20 Wis., 74. Where insanity results from long continued intoxication, the insane person is no more to be punished for his acts than if the delirium had proceeded from causes not under his control. U. S. v. Drew, 5 Mason, 28; State v McCants, 1 Spears, 381; Bailey v. State, 26 Ind., 422; State v. Hundley, 46 Mo., 414. (4) Ignorance of the law, which every man is bound to know, excuses no man. See the maxim and illustrations in Broom's Legal Maxims. And this maxim in criminal cases cannot often work a wrong, for there are few acts punishable criminally which a party can be excusable for committing, whether he is aware of the penalty or not. Nevertheless, the ignorance of the party may sometimes be ground for inflicting a nominal punishment, or recommending him to pardon. Rex v. Lynn, 2 T. R., 733; Rex v. Bailey, R. and Ry., 1; Rex v. Esop, 7 C. and P., 456. And in some cases where the intent is the essence of the crime, it may constitute a defense. As where a person is prosecuted for larceny for the conversion to his own use of money which he had found, and which he erroneously believed became his own by the finding. The Queen v. Reed, Car. and M., 306. Or where parties riotously destroy a house, in the mistaken belief that in law it belongs to one of them. The Queen v. Langford, Car. and M., 602. Or where a bankrupt, in honestly following the advice of counsel, withholds property from his schedule which ought to be included, and makes to the same an affidavit which in law is false. U. S. v. Conner, 3 McLean, 573. |