becomes of nonsaue 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 *something in stay of judg- [25] 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 But this savage and inhuman law was repealed by the statute 1 & 2 Ph.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 aa 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 commit ted 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. (m) 33 H. VIII. c. 20. (n) 3 Inst. 6. (4) See accordingly, 2 R. S. 697, 698: and for the mode of trying the question of in sanity after sentence, see id. 658. (5) The most of the previous Acts are now repealed by 9 Geo.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 peInalty of 164. 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 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 of fence becoming insane whilst under imprisonment, may be removed by an order of the Secretary of State to any county asylum; (0) Hal. P. C. 31. (p) Bro. Abr. t. Corone, 101. 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 asy. lums 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, intitled "An Act to regulate the Care and Treatment of Insane Persons in England;" which, by section 21, makes it a misdemeanor in the keeper or other superintendant of any licensed house concealing any insane person from the inspec tion 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. vol. 1 and 3, ◊ 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, 7. 1 Hale. 647. See also 10 Geo. IV. c. 18. As to the form and extent of such orders, see Res v. Maulden, 2 M. and K. and now, by the vagrant acts (q), 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 misbehaviour. A drunkard, says sir Edward Coke (r), 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 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 (). 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 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 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 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) (8). 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 mis. take 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) (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 (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 [*28 ] 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 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. (z) Plowd. 343. (9) "Ignorance of the law, which every man is bound to know, excuses no man.' ." It may be a ground for pardon. Rex v. Bailey, R. and 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. "Ju ris ignorantia non prodest adquirere volentibus, uum vero petentibus non nocet," D. 22, 6, 7; or, es it is expressed by the commentators, "Ju is error, ubi de damno evitando agitur, non nocet ubi de lucro captando, nocet: error facti neutro casu nocet." Minoribus 25 annis jus ignorare permissum est: quod et in fœminis in quibusdam causis propter sexús infirmitatem dicitur; et ideo, sicubi non est delictum, sed juris ignorantia, non læduntur:" D. 22, 6, 9. And see Pothier, Traité de l'Action, Condictio indeVOL. II. 52 (a) Ff. 22. 6. 9. biti, part 2, sect. 2, art. 3. In Vernon's case, Mich. 20 Hen. VII. fo. 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 ease 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 v. Le Maitre, 2 Wills. 368 To prevent the ignorance of a recent act from injuring a party, the act does not take effect in New-York till twenty days after it is passed, unless there be a special provision to the contrary. R. S. 157, § 12. 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 (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) (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 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 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, (b) 1 Hawk. P. C. 3. (c) 1 Hal. P. C. 45. (d) cap. 57. (10) The husband, however, must be present when the offence is committed, or the presumption of coercion by him does not arise. Rez v. Morris, R. and R. C. C. 270. The wife is not treated as an accessary 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, 10, 1 Hale, 44. And if an of fence be committed by the wife alone, without he husband's concurrence, she may be puDished by way of indictment, without him. Id. nd see Moor, 813 (e) Stiernh. de jure Sueon. 1. 2, c. 4. (f) Hal. P. C. 47. (g) 1 Hawk. P. C. 2. 3. (11) 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. (12) In all misdemeanors 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. & 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 where the wife offends alone, without the company or coercion of her hus band, she is responsible for her offence, as much as any feme-sole. 2. Another species of compulsion or necessity is what our law [30] 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 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 (1), 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 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 least pernicious 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 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 (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. 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 misdemeanors. (13) The fear of having houses burnt, or goods spoiled, is no excuse in the eye of the law, for ioining and marching with rebels. (1) 1 Hal. P. C. 50. The only force that doth excuse, is a force |