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becomes of nonsaue memory, execution shall be stayed : for peradventuro. says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judg- (251 ment or execution (2) (4). 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 But this savage and inhuman law was repealed by the statute 1 & 2 Ph.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 poena 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 (5). 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 recovered their senses (p), without wanting for the forms of a commission or other special authority from the crown: (1) 1 Hal. P. C. 34.

(p) Bro. Abr. t. Corone, 101.

(0) 1 Hal. P. C. 31.

(m) 33 H. VIII. c. 20. () 3 Inst. 6.

(4) See accordingly, 2 R. S. 697, 698: and and, if they should recover before the time of for the mode of trying the question of in their imprisonment shall have expired, they sanity after sentence, see id. 658.

may be remanded to prison ; so, if their im(5) The most of the previous Acts are now prisonment shall have expired, they are to be repealed by 9 Geo. IV. c. 40, which enacts, in discharged. section 36, that justices at their petty ses. By section 56, the visitors of county asy. sions, held next after the 15th day of August lums are directed to prepare annual reports of in every year, shall call upon the overseers to the patients confined therein, and to 'furnish make returns of insane persons, under a pe- the Secretary of State, and the Clerk to the nalty of 161. for neglect.

Commissioners, under 9 Geo. IV. c. 41, with Section 38 authorizes the justices of the a copy. peace to call upon the overseers to bring any Vide also 9 Geo. IV. c. 41, intitled “ An poor person deemed to be insane before two Act to regulate the Care and Treatment of justices, who, upon due examination, may Insane Persons in England;" which, by seccause the party to be sent to the lunatic asy. tion 21. makes it a inisdemeanor in the keeper lum or licensed house, and make an order for or other superintendant of any licensed house his allowance ;t no person to be removed, un. concealing any insane person from the inspecless under a justice's order, or, when cured, tion of the commissioners or visitors. overseers are to deliver to the keeper a certi. An idiot, or person born deaf and dumb, or ficate of examination.

any one who is non compos at the time, cannot By section 44, persons wandering about, be an approver. H. P. C. 282, Ø 5, vol. 2. deemed to be insane, though not chargeable, But, if he who wants discretion, commit a two justices may make an order for mainte. trespass against the person or possession of nance, as in cases of persons actually charge. another, he shall be compelled in a civil action able. If the estate of the party shall be suffi. to give satisfaction for the damage. Id. vol. 1 cient, overseers may recover their expenses by and 3,9 5. 3 Bac. Abr. 131. So he who in. lovy.

vites a madman to commit murder, or other By section 55, persons convicted of any of. crime, is a principal offender, and as much fence becoming insane whilst under imprison. punishable as if he had done it himself. ld. ment, may be removed by an order of the 4, 97. i Hale. 647. Secretary of State to any county asylum ; See also 10 Geo. IV. c. 18.

† As to the form and extent of such orders, see Ru v. Maulden, 2 M. and K.

and now, by the vagrant acts (9), a method is chalked out for imprisoning chaining, and sending them to their proper homes (7).

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 [ 26 ] the offence, rather than as an excuse for any criminal mishe

haviour. A drunkard, says sir Edward Coke (), who is volunarius daemon, 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 en. acted, “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 (1). The Roman law indeed made great allowances for this vice : "per vinum delapsis capitalis poena remittitur (u)." But the law of England, considering how easy it is to coun

rfeit 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 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 pre[ 27 ] sent only observing, that if any accidental mischief happens to

follow from the performance of a lawful act, the party stands ex. cused 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 (2) (8)

(g) 17 Geo. II. e. 5.
(5) I Inst. 247.
(8) Sp. L. b. 14, c. 10.
(1) Puff. L. of N. b. 8, c. 3.

(u) ff. 49. 16. 6.
(w) Plowd. 19.
(x) 1 Hal. P. C. 39.

(7) See I R. S. 634.

P. C. 475. (8) But a very important distinction is made A person committing or attempting a tres in such cases, viz. whether the unlawful act pass, or other injury to private righis or prois also in its original nature wrong and mis- perty, and while so doing involuntarily killing chievous, for a person is not answerable for another, is guilty of manslaughter in the third he accidental consequences, though fatal, of degree, and punishable with imprisonment for an act, which is merely a malum prohibitun; not more than four nor less than iwo years ; (a as where any unfortunate accident happens R. S. 661): if the killing were by one actually from an unqualified person being in pursuit of committing felony, it seems tola mu dor. (Id game, he is amenable only to the same extent 657). as a man duly qualified. Fost. 259.2 Hal.

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 ihis must be an ignorance or mistake of fact, and not an error in point of law. As il 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 sciro, neminem excusat, is as well the maxim of our own law (2), as it was of the Roman (a) (9).

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 (ir left to itsell ) 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.

*l. Of this nature, in the first place, is the obligation of civil [ *28] subjection, whereby the inferior is constrained by the superior to act comrary 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 conscientiae, 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 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.

(y) Cro. Car. 538. (2) Plowd. 343.

(a) Ff. 22. 6. 9.

(9) "Ignorance of the law, which every man biti, part 2, sect. 2, art. 3. In Vernon's case, is bound to know, excuses no man." It may be Mich. 20 Hen. VII. fo. 2, pl. 4, the defendants a ground for pardon. Rer v. Bailey, R. and R. justified taking away the plaintiff's wife, on c. c. 1. The rule is borrowed from the civil the ground that they were accompanying her law, (D. lib. 22, tit. 6,) without, however, to Wesiminster, to sue for a divorce in ease adopting with it those equitable modifications of her conscience. It was objected to the plea, by which the rule was originally accompanied, that the defendants ought to have taken her some of which it may be proper to state. “/16 to the ordinary or the metropolitan; but the ris ignorantin non prodest alquirere volentibus, plea was held goor, " for perhaps they had not uum vero pelentibus non nocet." D. 22, 6, 7; or, knowledge of the law as to where the divorce es it is expressed by the commentators, "Ju should be sued." And see Manser's case, 2 is error, ubi de damno evitando agitur, non no. Co. Rep. 4; Doctor and Student, hook 2. cap ail: ubi de lucro captando, nocet : error facti 46. 47; Eichhorn v. Le Maitre, 2 Wills. 368 aculro casu nocet." 6. Minoribus 25 annis jus To prevent the ignorance of a recent act ignorare permissum est : quod et in foeminis in from injuring a party, the act does not tak. quibusdam causis propter serús infirmitatem die effect in New York till twenty days after i: citur ; et ideo, sicubi non est delictum, sed juris is passed, unless there be a special provision ignorantia, non læduntur :" D. 22, 6, 9. And to the contrary. IR. S. 157, § 12. se Pothier, Traité de l'Action, Condictio indeVou. II.

52

As u 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 (6); though in some cases the command or authority of the husband, either expressed or implied, will privilege the wise from punish, ment, even for capital offences. And therefore if a woman commit thest, burglary, or other civil offences against the laws of society, by the coer, cion 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 Xc) (10). Which doctrine is at least

a thousand years old in this kingdom, being to be found among the [ 29 ] 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 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 (11): 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 slale, has no right to that obedience from a wise, which he himself as a subject has forgotten to pay. In inferior misdemeanors also we may remark another exception; that a wise may be indicted and set in the pillory with her busband, 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) (12). And in all cases,

(6) I Hawk. P. C. 3.
(c) I Hal. P. C. 45.
(d)
сар. .

57.

(el Stiernh. de jure Sucon. 1. 2, c. 4.
U I Hal. P. C. 47.
(8) 1 Hawk. P. C. 2. 3.

(10) The husband, however, must be pre- (11) The law seems to protect the wise in sent when the offence is committed, or the all felonies commited by her in company with presumption of coercion hy bim does not arise. her husband. except murder and manslaughRer v. Morris, R. and R. C. C. 270. The ter. Hal. P. C. 47. wife is not treated as an accessary to a felony (12) In all misdemeanors it appears that the for receiving her husband who has been guilty wile may be found guilty with the husband. of it, though, on the contrary, it appears the It is said, the reason why she was excused in husband would be for receiving his wise. H. burglary, larceny, &c. was because she could P. C. vol. 1, $ 10, 1 Hale, 44. And if an of. not tell what property the husband might claim fence be committed by the wife alone, without in the goods. io Mod. 63. & 335. But the he husband's concurrence, she may be pu- better reason seems to be, that by the ancient Dished by way of indictment, without him. Id. law the husband had the benefit of the clergy, nd see Moor, 813

if he could read, but in no case could women

calls duress per m

where the wife offends alone, without the company or coercion 3f 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 [ 30 ] fear of death or other bodily harm, and_which take away for that reason

minas (h); or threats and menaces, which induce a the guilt of many crimes and misdemeanors; at least before the huinan 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 constanter, non timiduin et meticulosum,” as Bracton expresses it (2), 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 (?)(13.) 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 lie ought rather to die himself, than escape by the murder of an innocent (m). But in such à case he is permitted to kill the assailant; for there the law of nature, and self-desence, 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 sear; 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 Ich 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 *least pernicions of the two. Here the will cannot be said freely [*31 ] to exert itself, being rather passive than active; or, if active, it is rather in rejecting the greate evil than in choosing the less. Of this sort is that necessity, where a man by the commandment of the law is bound o arrest another for any capital offence, or to disperse a riot, and resistance s 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 (14). 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 ex

(h) See book. I. p. 131.
(i). l. 2, f. 16.
(k) Ff. 4. 2. 5 & 6.

(1) 1 Hal. P. C. 50.
(m) 1 Hal. P. C. 51.
(n) 1 Hal. P. C. 52.

have that benefit ; it would therefore have The only force that doth excuse, is a force been an odivus proceeding to have executed upon the person, and present fear of death; the wife, and to have dismissed the husband and this force and fear must continue all the with a slight punishment: to avoid this, it was time the party remains with the rebels. It is thought better that in such cases she should incumbent upon men, who make force their be altogether acquitted ; but this reasou did defence, to shew an actual force, and that they not apply to misdemeanors.

joined pro timore mortis, et recesserunt quam cio (13) The fear of having houses burnt, or potuerint. Fost. 14. 216. goods spoiled, is no excuse in the eye of the (14) See 2 R. S. 660. law, for joining and marching with rebels.

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