any court out of Great Britain, shall be received in evidence, if verified by the seal of the court, or by the signature of the judge, or one of the judges of the court, without further proof.".

Upon a prosecution for this offence, the prosecutor must prove, 1, the conviction of the offender, by producing a certificate according to the above section of the statute; 2, the sentence or order of transportation, in like manner. The signature and official character of the person signing the certificate must be proved. If the certificate is made by the clerk or officer of a court out of Great Britain, it is admissible when verified by the seal of the court or the signature of the judge. The "effect and substance" of the former conviction must be stated in the certificate; merely stating that the prisoner was convicted "of felony" is not sufficient. Sutcliffe's case, Russ. and Ry. 469 (n.) (a); Watson's case, Id. 468 (b). 3, proof must then be given of the prisoner's identity; and 4, that he was at large before the expiration of his term.

Punishment.] By the 4 and 5 Wm. 4, c. 67, reciting the 22d section of the 5 Geo. 4, c. 84, it is enacted, "that every person convicted of any offence above specified in the said act of the 5th year of the reign of his late Majesty king George 4, or of aiding or abetting, counselling or procuring the commission thereof, shall be liable to be transported beyond the seas for his or her natural life, and previously to transportation shall be imprisoned, with or without hard labor, in any common gaol, house of correction, prison, or penitentiary, for any term not exceeding four years.

*GENERAL MATTERS OF DEFENCE. [ *872]

There are certain general matters of defence, the evidence with regard to which it will be convenient, to comprise under the three following heads: Infancy, Insanity, and Coercion by Husbands.

An infant is, in certain cases, and under a certain age, privileged from punishment, by reason of a presumed want of criminal design (1).

(1) Wheeler's C. C. 231.

(a) 1 Eng. C. C. 469. (b) 1 Ibid. 468.

In cases of misdemeanors and offences not capital.] In certain misdemeanors an infant is privileged under the age of 21, as in cases of nonfeasance only, for laches shall not be imputed to him. 1 Hale, P. C. 20. But he is liable for misdemeanors accompanied with force and violence, as a riot or battery. Id. So for perjury. Sid. 253. So he may be convicted of a forcible entry, 4 Bac. Ab. 591; but must not be fined (1). See ante, p. 436.

In cases of capital offences.] Under the age of seven years, an infant cannot be punished for a capital offence, not having a mind doli capax ; 1 Hale, P. C. 19; nor for any other felony, for the same reason. Id. 27. But on attaining the age of fourteen, he is obnoxious to capital (and of course to any minor) punishment, for offences committed by him at any time after that age. 1 Hale, P. C. 25.

With regard to the responsibility of infants, between the ages of seven and fourteen, a good deal of doubt formerly prevailed, but it is now quite clear, that where the circumstances of the case show that the offender was [*873] capable of distinguishing between right and *wrong, and that he acted with malice and an evil intention, he may be convicted even of a capital offence; and accordingly there are many cases, several of them very early ones, in which infants, under the age of fourteen have been convicted and executed (2). Thus in 1629, an infant between eight and nine years of age was convicted of burning two barns in the town of Windsor, and it appearing that he had malice, revenge, craft, and cunning, he was executed. Dean's case, 1 Hale, P. C. 25, (n.)

So Lord Hale mentions two instances to the same effect, one of a girl of thirteen, executed for killing her mistress, and another of a boy of ten, for the murder of his companion. 1 Hale, P. C. 26; Fitz. Ab. Corone, 118. In the year 1748, a boy of ten years of age was convicted of murder, and the judges, on a reference to them were unanimously of opinion that the conviction was right. York's case, Foster, 70.

An infant under the age of fourteen years is presumed by law unable to commit a rape, and though in other felonies, militia supplet ætatem, yet as to this fact, the law presumes the want of ability, as well as the want of discretion. But he may be a principal in the second degree, as aiding and assisting, though under fourteen years, if it appear that he had a mischievous discretion. 1 Hale, P. C. 630; Eldershaw's case, 3 C. and P. 396 (a); see further ante.

It is necessary, says Lord Hale, speaking of convictions of infants between the years of seven and twelve, that very strong and pregnant evidence should be given to convict one of that age. 1 Hale, P. C. 27; 4 Bl. Com. 23. And he recommends respiting of judgment till the king's pleasure be known. Ibid.

(1) See Wood v. The Commonwealth, 3 Leigh, 743.

(2) Comm. v. Keagy, 1 Ashmead, 248. State v. Aaron, 1 Southard, 231. Comm. v. Krouse, O. and T. Philad. Sept. 1835, before Judge King.

(a) Eng. Com. L. Rep. xiv. 367.

INSANITY.

Cases in which the prisoner has been held not to be insane

Cases in which the prisoner has been

held to be insane

· 876 874 Cases of insanity caused by intoxication 878

The defence of insanity is one involving great difficulties of various kinds, and the rules which have occasionally been laid down by the judges, with regard to the nature and degree of aberration of mind which will excuse a person from punishment, are by no means consistent with each other, or as it should seem, with correct principle (1). That principle appears to be well laid down in the following passage.

To amount to a complete bar of punishment, either at the time of *committing the offence, or of the trial, the insanity must have [ *874 ] been of such a kind as entirely to deprive the prisoner of the use of reason, as applied to the act in question, and the knowledge that he was doing wrong in committing it. If, though somewhat deranged, he is yet able to distinguish right from wrong, in his own case, and to know that he was doing wrong in the act which he committed, he is liable to the full punishment of his criminal acts. Alison's Princ. Crim. Law. Scotl. 645, 654.

The onus of proving the defence of insanity, or in the case of lunacy, of showing that the offence was committed when the prisoner was in a state of lunacy, lies upon the prisoner. See Alison's Princ. Crim. Law of Scotl. 659.

For the purpose of proving insanity, the opinion of a person possessing medical skill is admissible. Wright's case; Russ. and Ry. 456 (a); ante, P. 167.

The disposal of persons found to be insane at the time of the offence committed, is regulated by the statute 39 and 40 Geo. 3, c. 94, ante, p. 211.

The mode of arraignment and trial of such persons has also been stated, ante, p. 211.

Cases in which the prisoner has been held not to be insane.] In the following cases, the defence of insanity was set up, but without effect, and the prisoners were convicted. The prisoner was indicted for shooting at Lord Onslow. It appeared that he was to a certain extent deranged, and had misconceived the conduct of Lord Onslow, but he had formed a regular design to shoot him, and prepared the means of effecting it. Tracy, J., observed, that the defence of insanity must be clearly made out; that it is not every idle or frantic humor of a man, or something unaccountable in his actions, which will show him to be such a madman as to exempt him from punishment; but that where a man is totally deprived of his understanding and memory, and does not know what he is doing

(1) 1 Wheeler's C. C. 48. Jackson v. Van Dusen, 5 Johns. 158.

(a) 1 Eng. C. C. 456.

any more than an infant, a brute, or a wild beast, he will be properly exempted from punishment. Arnold's case, Collinson on Lunacy, 475; 16 How. St. Tr. 764, 765. The doctrine of the learned judge in this case, inay perhaps, be thought to be carried too far, for if the prisoner, in committing the act, is deprived of the power of distinguishing between right and wrong with relation to that act, it does not appear to be necessary that he should not know what he is doing. Vide post.

Lord Ferrers was tried before the House of Lords for the murder of his steward. It was proved that he was occasionally insane, and fancied his steward to be in the interest of certain supposed enemies. The steward being in the parlor with him, he ordered him to go down on his knees, and shot him with a pistol, and then directed his servants to put him to bed. He afterwards sent for a surgeon, but declared he was not sorry, and that it was a premeditated act; and he would have dragged the steward out of bed, had he not confessed himself a villain. Many witnesses stated [*875] that they considered *him insane, and it appeared that several of his relations had been confined as lunatics. It was contended for the prosecution, that the complete possession of reason was not necessary in order to render a man answerable for his acts; it was sufficient if he could discriminate between good and evil. The peers unanimously found his lordship guilty. Earl Ferrer's case, 19 How. St. Tr. 986.

The prisoner was indicted for shooting at and wounding W. B., and the defence was insanity, arising from epilepsy. He had been attacked with a fit on the 9th July, 1811; and was brought home apparently lifeless. A great alteration had been produced in his conduct, and it was necessary to watch him, lest he should destroy himself. Mr. Warburton, the keeper of a lunatic asylum, said that in insanity caused by epilepsy, the patient often imbibed violent antipathies against his dearest friends, for causes wholly imaginary, which no persuasion could remove, though rational on other topics. He had no doubt of the insanity of the prisoner. A commission of lunacy was produced, dated 17th June, 1812, with a finding that the prisoner had been insane from the 30th March. [The date of the offence committed does not appear in the report.] Le Blanc, J. concluded his summing up, by observing, that it was for the jury to determine whether the prisoner, when he committed the offence with which he stood charged, was capable of distinguishing between right and wrong, or under the influence of any illusion in respect of the prosecutor, which rendered his mind at the moment insensible of the nature of the act which he was about to commit, since in that case he would not be legally responsible for his conduct. On the other hand, provided they should be of opinion that when he committed the offence he was capable of distinguishing right from wrong, and not under the influence of such an illusion as disabled him from discovering that he was doing a wrong act, he would be answerable to the justice of the country, and guilty in the eye of the law. The jury, after considerable deliberation, pronounced the prisoner guilty. Bowler's case, Collinson on Lunacy, 673, (n.)

The prisoner was indicted for adhering to the king's enemies. His defence was insanity. He had been accounted from a child a person of weak intellect, so that it surprised many that he had been accepted as a soldier. Considerable .deliberation and reason, however, were displayed by him in entering the French service, and he stated to a comrade that it was much more agreeable to be at liberty, and have plenty of money,

than to remain confined in a dungeon. The attorney-general in reply, said, that before the offence could have any weight in rebutting a charge so clearly made out, the jury must be satisfied that at the time the offence was cominitted, the prisoner did not really know right from wrong. He was convicted. Parker's case, Collinson on Lunacy, 477.

The direction of Mansfield, C. J., to the jury in Bellingham's case, seems not altogether in accordance with the correct rules on the subject of a prisoner's insanity. He said that in order to support such a defence, it ought to be proved by the most distinct and unquestionable evidence, that the prisoner was incapable of judging between *right and [ *876 ] wrong; that in fact, it must be proved beyond all doubt, that at the time he committed the act he did not consider that murder was a crime against the laws of God and nature, and that there was no other proof of insanity which would excuse murder or any other crime. That in the species of madness called lunacy, where persons are subject to temporary paroxyms, in which they are guilty of. acts of extravagance, such persons committing crimes when they are not affected by the malady, would be answerable to justice, and that so long as they could distinguish good from evil, they would be answerable for their conduct; and that in the species of insanity in which the patient fancies the existence of injury, and seeks an opportunity of gratifying revenge by some hostile act, if such person be capable in other respects, of distinguishing between right and wrong, there would be no excuse for any act of atrocity which he might commit under this description of derangement. The prisoner was found guilty and executed. Bellingham's case, 1 Collinson on Lunacy, 636; Shelford on Lunatics, 462; see Offord's case, 5 C. and P. 168 (a). The above direction does not appear to make a sufficient allowance for the incapacity of judging between right and wrong upon the very matter in question, as in all cases of monomania. The following observations of an eminent writer on the criminal law of Scotland, are applicable to the subject. Although a prisoner understands perfectly the distinction between right and wrong, yet if he labors, as is generally the case, under an illusion and deception in his own particular case, and is incapable of applying it correctly to his own conduct, he is in that state of mental. aberration which renders him not criminally answerable for his actions. For example; a mad person may be perfectly aware that murder is a crime, and will admit that, if pressed on the subject; still he may conceive that a homicide he has committed was nowise blameable, because the deceased had engaged in a conspiracy, with others, against his own life, or was his mortal enemy, who had wounded him in his dearest interests, or was the devil incarnate, whom it was the duty of every good christian to meet with weapons of carnal warfare. Alison's Princ. Crim. Law Scotl. 645, citing 1 Hume, 37, 38. And see the observations on Bellingham's case, Alison, 658.

It has been justly observed that the plea of insanity must be received with much more diffidence in cases proceeding from the desire of gain, as theft, swindling, or forgery, which generally require some art and skill for their completion, and argue a sense of the advantage of acquiring other people's property. On a charge of horse-stealing, it was alleged that the prisoner was insane, but as it appeared that he had stolen the horse (a) Eng. Com. L. Rep. xxiv. 259.