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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. Idiocy or 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 Also, if a man in his sound memory commits a capital offense, 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 defense? 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 nonsane memory, execution shall be stayed; for, peradventure, says the humanity of the English [ 25 ] 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 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 But this savage and inhuman law was repealed by the statute 1 & 2 Ph.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
11 Hal., P. C., 34.
m 33 Hen. VIII., c. 20.
k 3 Inst., 6.
(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. Lit., 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 there 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. So, by the 21 Hen. VIII., c. 7, concerning felony by servants that embezzle their master's 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 un
der eighteen years, unless thus excluded by a special proviso, Hale, Hist. P. C., 22. So the 12 Ann., c. 7, for punishing robberies in dwelling-houses, excepts apprentices under the age of fifteen, who shall rob their masters, from the act.[CHITTY.]
(2) Much discussion has arisen in va rious cases as to the nature and degree of unsoundness of mind which should exempt a person from criminal responsibility, according to the law of England. In consequence of a recent case (Regina v. M'Naughten, Central Criminal Court, March, 1843), certain questions were submitted by the House of Lords to the judges on this subject; which, with the answers to them, are given in the Appendix to this volume (B).
* See a similar exception, 2 R. S., 678, § 59.
Edward Coke," "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 a 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. 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, a method is chalked out for imprisoning, chaining, and sending them to their proper homes.'
III. Thirdly as to artificial, voluntarily contracted madness, III. Drunkby drunkenness or intoxication, which, depriving men of their or the like. reason, puts them in a temporary frenzy, our law looks upon this as an aggravation of the offense, rather than as an excuse for any criminal misbehavior. A drunkard, says Sir Edward [ 26 ] Coke, who is volantarius dæmon, hath no privilege thereby, but what hurt or ill soever he doth, his drunkenness doth aggravate
n 3 Inst., 6.
• 1 Hal., P. C., 31.
P Bro. Abr., tit. Corone, 101.
9 17 Geo. II., c. 5.
(3) By the 39 & 40 Geo. IIL, c. 94, s. 1, a person insane at the time of committing the offense of treason, murder, or felony, upon the jury's acquitting him, they must find specially he was insane, and that he was acquitted on that account; and then an order is to be made by the court to keep the party in custody until the king's pleasure be known; and by sect. 2, when a person indicted for any offense be insane, and so found to be upon arraignment, so that he can not be tried, or when upon the trial he shall be found insane, the court may record such finding, and order the party to be kept in custody until the king's (4) The law as to the confinement pleasure be known; and if the person and maintenance of insane prisoners is be brought up to be discharged for want now regulated by the recent statute, 3 of prosecution, then a jury may be im- & 4 Vict., c. 54. paneled to try his insanity, and he may
See a similar statute, 1 R. S., 634, et seq.
be kept in custody as before directed.
it; nam omne crimen ebrietas, 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 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 delapsisca pitalis pæna remittitur."" 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. Act done by misfortune or chance.
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 [ 27 ] 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 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 offense, in doing antecedently what is in itself unlawful, he is criminally guilty of whatever consequence may follow the first misbehavior.x
V. By igno
rance or mistake.
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
is merely a malum prohibitum; 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.]
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 willful 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 defense. Ignorantia juris, quod quisque tenetur scire, neminem excusat, is as well the maxim of our own lawz as it was of the Roman.a
VI. By compulsion and
VI. A sixth species of defect of will is that arising from compulsion and inevitable necessity. These are a constraint upon necessity. 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 giveh 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 1. By civil to act contrary to what his own reason and inclination would subjection 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 conscientia, 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 burned 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 endeavored to restore superstition under the holy auspices of its merciless sister, persecution.
As to persons in private relations: the principal case, where Husband 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 excusa Ff., 22, 6, 9.
Cro. Car., 538.
z Plowd., 343.
(6) But this rule supposes an oppor- in a few weeks after the passing of the tunity of knowing the law. Therefore, 39 Geo. III., c. 37, and before notice of ignorance of a law, which is of very re- it could have reached the place where cent enactment, will in some cases af- the offense was committed, the judges ford an excuse. Thus, where the pris- thought that, as he could not have known oner was indicted for maliciously shoot of that act, he ought to have a pardon. ing, and the offense was committed with Russ. & Ry., Cr. C., 1.-[CHITTY.]
ed 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 express or implied, will privilege the wife from punishment, even for capital offenses. And, therefore, if a woman commit theft, burglary, or other civil offenses 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. Which doctrine is at least a 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 transgressing in concert with a man, and to any servant that committed a joint offense with a freeman; the male or freeman only was punished, the female or slave dismissed: "procul-dubio quod alterum libertas, alterum necessitas impelleret." 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; as well because of the odiousness and dangerous consequence 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
b 1 Hawk., P. C., 3.
c 1 Hal., P. C., 45.
(7) Therefore, if a wife harbor a felon, she is not liable. 1 Hale, 621; Hawk., b. 2, c. 29, s. 34. In a late case, where a wife, by her husband's order and procuration, but in his absence, knowingly uttered a forged order and certificate for the payment of prize-money, it was held that the presumption of coercion, at the time of uttering, did not arise, as the husband was absent, and that the wife was properly convicted of the uttering, and the husband of procur