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. (1) Thus a girl of thirteen has been burnt 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 was tried at Abingdon for firing two [*24] 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.

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 (g) Dalt. Just. c. 147. (i) Emlyn on 1 Hal. P. C. 25. (3) Foster, 72.

(h) 1 Hal. P. C. 26, 27.

(k) 3 Inst. 6.

(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. C. 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.

(2) [It is not every frantic and idle humor 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 a 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.]

It has been sometimes supposed where insanity is set up as a defence in a criminal case, that the defendant takes upon himself the burden of proof to establish the defence, and that he must make it out beyond a reasonable doubt; but this idea is now exploded. The burden of proof rests upon the prosecution throughout, and a presumption of innocence all the while attends the prisoner, and entitles him to an acquittal if the jury are not reasonably satisfied of his guilt. A reasonable doubt of the prisoner's capacity to commit the crime entitles him as justly to an acquittal as a reasonable doubt upon any other branch of the case; and this fact is fully recognized by the later authorities. People v. McCann, 16 N. Y. 58 Commonwealth

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 non-sane memory, execution shall be stayed: for, preadventure, 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) 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 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 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 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. (0) 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 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 [*26] Sir Edward Coke, (1) 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 mischiev

(2) 1 Hal. 1. C. 34. (m) 33 H. VIII, c. 20. (p) Bro. Abr. t. Corone, 101.

(q) 17 Geo. II, c. 5.

(n) 3 Inst. 6.

(0) 1 Hal. P. C. 31.
(8) Sp. L. b. 14, c. 10.

(r) 1 Inst. 247.

v. Kimball, 24 Pick. 373; Commonwealth v. Dana, 2 Met. 340; State v. Marler, 2 Ala. 43; Hopps v. People, 31 Ill. 385; People v. Garbutt, 17 Mich. 23. In the case last cited it is said that the prosecution" are at liberty to rest upon the presumption of sanity until proof of the contrary condition is given by the defence. But when any evidence is given which tends to overthrow that presumption, the jury are to examine, weigh and pass upon it with the understanding that, although the initiative in presenting the evidence is taken by the defence, the bur den of proof upon this part of the case, as well as upon the other, is upon the prosecution to establish the conditions of guilt." And see per Rolfe, B., 3 C. and K. 188; State v. Klinger, 43 Mo. 127; State v. Hundley, 46 Mo. 414.

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 casily and safely applied in practice. See also McNaughton's Case, 10 Cl. and Fin. 200.

ous 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 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)(3)

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 [ *27] 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)(4)

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)(5)

(t) Puff. L. of N., b. 8, c. 3. (y) Cro. Car. 538.

(u) Ff. 49. 16. 6.

(*) Plowd. 343,

(w) Plowd. 19. (a) Ff. 22. 6.9.

(x)1 Hal. P. C. 39.

(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 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 N. H. 392. Nevertheless, the drunkenness of she party is often an important consideration in criminal cases, where the guilty knowledge or intent constitute 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. 141; U. S. v. Roudenbush, 1 Bald. 517; 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 larcency 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, 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. Garey, 11 Minu. 154; People v. Harris, 29 Cal. 678; Bailey v. State, 26 Ind. 42; 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, 384; Bailey v. State, 26 Ind. 423; State v. Hundley, 46 Mo. 414.

(4) [By "unlawful" is intended here, any act morally wrong; that which is malum in se; for if it was barely malum prohibitum, as shooting at game by a person not qualified by statute law to use a gun for that purpose, the party will not be answerable for the unforeseen consequence. Foster, 259.]

(5) Ignorance of the law, which every man is bound to know, excuses no man. See the maxim and illustrations in Broom's Legal Maxims, p. 190.

And this maxim in criminal cases cannot often work a wrong, for there are few acts punish 313

VOL. II.-40

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 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 causists, 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 burnt 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 construcs a coercion; she is not guilty of any crime; being considered as acting by compulsion and not of her own will.(c)(6) Which doctrine is at least a

able 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; Regina v. Esop. 7 C. and P. 456. And in some cases where the intent is the essence of the crime, it may constitute a defence. As where a person is prosecuted for larcency 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 . 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. Conner, 3 McLean, 573.

(6) The husband must, however, be present when the offence is committed, or the presumption of coercion by him does not arise. Rex v. Morris. Russ. and Ry. 270. As to what is sufficient presence, see R. v. Connolly, 2 Lew. C. C. 229. And even then the presumption is not a conclusive one, but only prima facie, and it may be shown by evidence that in fact the wife was the real criminal. R. v. Hammond, 1 Leach, 347; 1 Bish. Cr. L. § 230; Whart. Cr. L. § 2475. The wife may therefore be indicted and tried jointly with the husband, and must rely on the coercion for an acquittal when the proofs are adduced at the trial. State v. Parkerson, 1 Strob. 169; Commonwealth v. Murphy, 2 Gray, 510.

Coercion is not admitted as an excuse in the case of treason or murder. Reg. v. Manning, 2 C. and K. 903; and perhaps robbery should be added to this list. Arch. Cr. L. 6; 1 Bish. Cr. L. § 270; Rex v. Cruse, 8 C. and P. 545. It is allowed in other felonies, and in misdemeanors generally. R. v. Ingram, 1 Salk. 384; Commonwealth v. Neal, 10 Mass. 152. But the case of keeping a brothel and gaming-house are exceptions. R. v. Dixon, 10 Mod. 336; State v. Bentz, 11 Mo. 27; Commonwealth v. Lewis, 1 Met. 151. And husband and wife may be jointly indicted and convicted of an assault: Regina v. Cruse, 8 C. and P. 541; or of keeping a liquor nuisance Commonwealth v. Tryon, 99 Mass. 442.

314

thousand years old in this kingdom, being to be found among the laws of King *Ina, the West Saxon. (d) And it appears that among the northern nations on the continent, this privilege extended to any woman trans[*29] gressing 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: 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: (ƒ) 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 misdemeanors, also, we may remark another exception; that a wife may be indicted and set in the pillory with her husband for keeping a brothel; 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) 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.

*2. Another species of compulsion or necessity is what our law calls [*30] 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 misdemeanors; 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 the time of peace. (1) (7) 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

(d) Cap. 57. (e) Stiernh. de jure Sueon. 1. 2, c. 4. (h) See book, I, p. 131. (i) l. 2, f. 16.

(f) 1 Hal. P. C. 47. (k) Ff. 4, 2, 5 and 6.

(g)1 Hawk. P. C. 2, 3. (1) Hal. P. C. 50.

The presumption of coercion will apply to admissions made by the wife in the husband's presence, calculated to exonerate him and inculpate herself. Reg. v. Laugher, 2 C. and K. 225. I is not necessary for the woman to prove an actual marriage in these cases; the jury may presume it from evidence of cohabitation and reputation. Rex v. Woodward, 8 C. and P. 561; Reg. v. Good, 1 C. and K. 185.

That an agent or other person acting under the authority of another is not excused from criminal liability by the command of his superior, see Commonwealth v. Hadley, 11 Met. 66; Kliffield v. State, 4 How. Miss. 304; Hays v. State, 13 Mo. 246; State v. Bugbee, 22 Vt. 32; Barrow v. Page, 5 Hayw. 97. See, also, post, p. 37, n.

(7) [The fear of having houses burnt, 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, 216.1

See also Rex v. McGrowther, 1 East, P. C. 71; Respublica v. McCarty, 2 Dall. 86.