the fact, and that he was either within the age of infancy, viz. seven years old, or that he did the fact, but was under fourteen, and not of discretion to judge between good and evil; in which case the court ex officio ought to discharge him, because it is not felony.

4. And lastly, If an infant within age be infra ætatem infuntiæ, viz. seven years old, he cannot be guilty of felony,(e) whatever circumstances proving discretion may appear; for ex[ 28 ] presumptione juris he cannot have discretion,() and no averment shall be received against that presumption: and although the laws of England, as well as the Civil and Canon law, assign a difference between males and females as to their age of consent to marriage, viz. fourteen to the male, twelve to the female; yet it seems to me, that as to matters of crimes, especially in relation to capital punishments, the females have the same privilege of nonage as the males; and therefore the regular tas pubertatis in reference to capital crimes and punishments of both is fourteen years, with those various temperaments and exceptions above assigned.

And it is to be observed, that in all cases of infancy, insanity, &c. if a person uncapable to commit a felony be indicted by the grand inquest, and thereupon arraigned, the petit jury may either find him generally not guilty, or they may find the matter specially, that he committed the fact, but that he was non compos, or that he was under the age of fourteen,[3] scilicet ætatis 13 annorum, and had not discretion to discern between good and evil, & non per feloniam; and thereupon the court gives judgment of acquittal. 21. H. 7. 31.(g) But if a man be arraigned in such a case upon an indictment of murder or manslaughter by the coroner's inquest, there if the party committed the fact, regularly the matter ought to be specially found, because if the jury find the party not guilty, they must inquire how he came by his death, viz. "Et juratores prædicti quæsiti per curiam, quomodo is ad mortem suam devenit dicunt super sacramentum suum, quod prædictus A. B. die—anno- -apud D. dum non fuit compos mentis, or dum fuit infra ætatem discretionis, scilicet 9 annorum, nec scivit discernere inter bonum & malum, prædictum J. S. cum gladio, &c. percussit & ipsum ad tunc & ibidem occidit, sed non ex malitiâ precogitatâ neque per feloniam, vel felleo animo; & sic idem J. S. ad mortem suam devenit." But if he be first arraigned, and acquitted upon the indictment by the grand inquest, and [ 29 ] found not guilty, he may plead that acquittal upon his arraignment upon the coroner's inquest, and that will discharge him; and the petit jury shall inquire farther how the party came by his death.

(e) And yet there is a precedent in the register, fol. 309. b. of a pardon granted to an infant within the age of seven years, who was indicted for homicide; in this case the jury found, that he did the fact before he was seven years old.

(f) Plowd. 19. a.

(g) B. Corone 61.

[3] See Com. v. Lanigan, 2 (Boston) Law Rep. 49.

VOL. I.-4

CHAPTER IV.

CONCERNING THE DEFECT OF IDIOCY, MADNESS AND LUNACY, IN REFERENCE TO CRIMINAL OFFENCES AND PUNISHMENTS.

AND thus far touching that natural defect of infancy. Now concerning another sort of defect or incapacity, namely idiocy, madness and lunacy. For though by the law of England no man shall avoid his own act by reason of these defects, (a) though his heir or executor may, yet as to capital offences these have in some cases the advantage of this defect or incapacity ;(b) and this defect comes under the general name of Dementia, which is thus distinguished.

I. Idiocy, or fatuity à nativitate vel dementia naturalis;[1] such a one is described by Fitzherbert, who knows not to tell 20s. nor knows who is his father or mother, nor knows his own age; but if he knows letters, or can read by the instruction of another, then he is no idiot. F. N. B. 233. b. These, though they may be evidences, yet they are too narrow, and conclude not always, for idiocy or not is a question of fact triable by jury, and sometimes by inspection. II. Dementia accidentalis vel adventitia, which proceeds [30] from several causes; sometimes from the distemper of the humours of the body, as deep melancholy or adust choler; sometimes from the violence of a disease, as a fever or palsy; sometimes from a concussion or hurt of the brain, or its membranes or

(a) For it is said to be a maxim in law, that no man of full age shall be permitted to stultify himself. 4 Co. Rep. 123. b. Beverly's case, Co. Lit. 247. a. The reason hereof is, because a man cannot know or remember what acts he did when he was of non sane memory. 35 Assis. pl. 10. See contra F. N. B. p. 449. Show. Ca. Parl. 153. 2. Salk. 576.[2] (b) Co. Lit. 247. b Plowd. 19. a.

[1] See Wheller v. Alderson, 3 Hagg. R. 602. Ray on Insanity, c. 2. p. 69. 2d. Ed. [2] Black. Comm. 291, 292; 1 Fonbl. Eq. B. 1. ch. 2. § 1 and note (d); Co. Litt. 247. Yates v. Boen, 2 Str. R. 1104. See Shelford on Lunatics, ch 6. § 2. p. 263. ch. 9. § 2. p. 407, &c. Baxter v. Portsmouth, 7 Dowl. & Ryl. 618; S. C. 5 Barn. & Cressw. 170; Brown v. Joddrell, 3 Carr. & Payne, 30: Newland on Contracts ch. 1. p. 15 to 21. The subject is a good deal discussed by Mr. Justice Blackstone, in his Commentaries, who does not attempt to disguise its gross injustice, (2 Black. Comm. 191, 292.) It is fully discussed by Mr. Fonblanque in his learned notes, (1 Fonbl. Eq. B. 1 ch. 2. § 1 and notes (a) to (k), and by Lord Coke in his commentary on Littleton, (Co. Lit. 247. a. and b.) who adheres firmly to it as a maxim in the common law. In America this maxim has not been of universal adoption, in the State Courts, if indeed it has ever been recognized as binding in any of the Courts of Common Law. See Somes v. Skinner, 16 Mass. R. 348; Webster v. Woodford, 3 Day, R. 90-100; Mitchell v. Kingman, 5 Pick. R. 431. In modern times, the English Courts of Law seem to be disposed, as far as possible, to escape from the maxim. Ball v. Mannin, 3 Bligh. R. (new series) 1. And even in England, although the party himself could not set aside his own act, yet the King as having the general custody of idiots and lunatics, might by his attorney general, on a bill set aside the same acts. Buller, N. Prius, 172; 1 Story's Eq. Jur. § 255, note (4); 2 Greenl. Ev. § 369; 3 Bacon's Ab. Idiots and Lunatics, F.

The ancient rule of the common law must now be considered as entirely exploded.

organs; and as it comes from several causes, so it is of several kinds or degrees; which as to the purpose in hand may be thus distributed : 1. There is a partial insanity of mind; and 2. a total insanity.

The former is either in respect to things quoad hoc vel illud insanire; some persons, that have a competent use of reason in respect of some subjects, are yet under a particular dementia in respect of some particular discourses, subjects, or applications; or else it is partial in respect of degrees: and this is the condition of very many, especially melancholy persons, who for the most part discover their defect in excessive fears and griefs, and yet are not wholly destitute of the use of reason; and this partial insanity seems not to excuse them in the committing of any offence for its matter capital; for doubtless most persons that are felons of themselves, and others are under a degree of partial insanity, when they commit these offences: it is very difficult to define the indivisble line that divides perfect and partial insanity; but it must rest upon circumstances duly to be weighed and considered both by the judge and jury, lest on the one side there be a kind of inhumanity towards the defects of human nature, or on the other side too great an indulgence given to great crimes: the best measure that I can think of is this; such a person as labouring under melancholy distempers hath yet ordinarily as great understanding, as ordinarily a child of fourteen years hath, is such a person as may be guilty of treason or felony.

Again, a total alienation of the mind, or perfect madness; this excuseth from the guilt of felony and treason:(d) de quibus infra. This is that, which in my lord Coke's Pleas of the Crown, p. 6. is called by him absolute madness, and total deprivation of memory.

Again, this accidental dementia, whether total or partial, is distinguished into that which is permanent or fixed, and [ 31 ] that which is interpolated, and by certain periods and vicissitudes: the former is phrenesis or madness; the latter is that, which is usually called lunacy, for the moon hath a great influence in all diseases of the brain, especially in this kind of dementia; such persons commonly in the full and change of the moon, especially about the equinoxes and summer solstice, are usually in the height of their distemper; and therefore crimes committed by them in such their distempers are under the same judgment as those whereof we have before spoken, namely, according to the measure or degree of their distemper; the person that is absolutely mad for a day, killing a man in that distemper, is equally not guilty, as if he were mad without intermission. But such persons as have their lucid intervals, (which ordinarily happens between the full and change of the moon) in such intervals have usually at least competent use of reason, and crimes committed by them in these intervals are of the same nature, and subject to the same punishment, as if they had no such deficiency; (e). nay, the alienations and contracts made by them in such intervals are obliging to their heirs and executors. (f)

(d) 21 H. 7. 31.b.

(e) F. Corone, 324.

(f) 4 Co. 125. a.

Again, this accidental dementia, whether temporary or permanent, is either the more dangerous and pernicious, commonly called furor, rabies, mania, which commonly ariseth from adust choler, or the violent inflammation of the blood and spirits, which doth not only take away the use of reason, but also superadds to the unhappy state of the patient, rage, fury, and tempestuous violence; or else it is such as only takes away the use and exercise of reason, leaving the person otherwise rarely noxious, such as is a deep delirium, stupor, memory quite lost, the phantasy quite broken, or extremely disordered. And as to criminals these dementes are both in the same rank; if they are totally deprived of the use of reason, they cannot be guilty ordinarily of capital offences, for they have not the use of understand[32]ing, and act not as reasonable creatures, but their actions are in effect in the condition of brutes.(g)

III. The third sort of dementia is that, which is dementia affectata, namely drunkenness.[3] This vice doth deprive men of the use

(g) Bract. 420. b. F. Corone, 193, 351.

[3] With regard to drunkenness, it is now settled that a man cannot avail himself of his own gross misconduct and vicious acts, to shelter himself from the legal consequen ces of crime. But to make him criminally responsible, the act must take place and be the immediate result of the fit of intoxication, and while it lasts; and not the result of insanity remotely occasioned by previous habits of gross indulgence in spirituous liquors. The law looks to the immediate, and not to the remote cause; to the actual state of the party, and not to the causes which remotely produced it. 2 Greenl. on Ev. § 374. Drunkenness, it was said in an early case, can never be received as a ground to excuse or palliate an offence: this is not merely the opinion of a speculative philosopher, the argument of counsel, or the obiter dictum of a single judge, but it is a sound and long established maxim of judicial policy, from which perhaps a single dissenting voice cannot be found. But if no other authority could be adduced, the uniform decisions of our own Courts from the first establishment of the government, would constitute it now a part of the common law of the land. Wharton's Am. Crim. Law, 13, 14; 2 Rice's Dig. Tit. Murder and Manslaughter, p. 105; 1 Story's Eq. Jur. § 230, 231, and cases there cited in notes, which, though mostly civil cases, are still valuable for the analogies in principle there to be found. "If a person that is drunk kills another, this shall be felony, and he shall be hanged for it, and yet he did it through ignorance, for when he was drunk he had no understanding or memory; but inasmuch as that ignorance was occasioned by his own act and folly, and he might have avoided it, he shall not be privileged thereby. And Aristotle says, such a man deserves double punishment, because he has doubly offended, viz: in being drunk to the evil example of others, and in committing the crime of homicide." Per Pollard, Serg., arguendo in Reniger v. Fogossa, Flowd. R. 19; Beverley's Case, 4 Rep. 125.

"The prisoner's being intoxicated does not alter the nature of the offence. If a man chooses to get drunk, it is his own voluntary act; it is very different from a madness which is not caused by any act of the person. That voluntary species of madness which it is in the party's power to abstain from, he must answer for." Per Alderson, B., in Rez v. Meakin, 7 C. & P. 297.

"If a man makes himself voluntarily drunk, that is no excuse for any crime he may commit whilst he is so: he must take the consequence of his own voluntary act, or most crimes would otherwise go unpunished. But drunkenness may be taken into consideration in cases where what the law deems sufficient provocation has been given, because the question is, in such cases, whether the fatal act is to be attributed to the passion of anger excited by the previous provocation, and that passion is more easily excitable in a person when in a state of intoxication than when he is sober. So, when the question is, whether words have been uttered with a deliberate purpose, or are merely low and idle expressions, the drunkenness of the person uttering them is proper to be considered. But if there is really a previous determination to resent a slight affront in a barbarous

of reason, and puts many men into a perfect, but temporary phrenzy ; and therefore, according to some Civilians, (h) such a person commiting homicide shall not be punished simply for the crime of homicide, but shall suffer for his drunkenness answerable to the nature of the

(h) Bartholinus and others. See Covarruvias, Tom. 1. p. 557. in relect. ad Clem. Si furiosus. Par. iii. §. 3. § 4.

manner, the state of drunkenness in which the prisoner was, ought not to be regarded, for it would furnish no excuse." Per Parke, B., in Rex v. Thomas, 7 C. & P. 820.

"It is a maxim of law, that, if a man gets himself intoxicated, he is liable to the consequences, and is not excusable on account of any crime he may commit when infuriated by liquor, provided he was previously in a fit state of reason to know right from wrong. If, indeed, the infuriated state at which he arrives should continue and become a lasting malady, then he is not amenable." Per Holroyd, J. in Burrow's Case, 1 Lew. C. C. 75. "If either the insanity has supervened from drinking, without the panel's having been aware that such an indulgence in his case leads to such a consequence, or if it has arisen from the combination of drinking, with a half crazy or infirm state of mind, or a previous wound, or illness which rendered spirits fatal to his intellect, to a degree unusual in other men, or which could not have been anticipated, it seems inhuman to visit him with the extreme punishment which was suitable in the other case. In such a case, the proper course is to convict; but in consideration of the degree of infirmity proved, recommend to the royal mercy." Alison's Princ. of the Crim. Law of Scotland, 654, quoted in Guy's Med. Jur. 277. Moreover there seems to be little doubt, that in these cases, the occasional thirst for spirituous drinks, is, itself, but one of the symptoms or effects of the diseased condition of the brain, as we see it occurring in persons who are not habitually intemperate, and who even abstain for weeks or months from all use of intoxicating liquors. If this be so, which we think none will dispute, then the intoxication itself is but an accidental and involuntary consequence of a maniacal state of the mind, depending on cerebral disorder, and can, by no means, impart a character of criminality to any action to which it may give rise. Guy's Med. Jur. 277; Ray on Insanity, c. 25.

The following cases are given by the American Editor of Guy, (Dr. Lee) in a note to page 277, above cited.

I. N. M. Thomas was tried May 13, 1840, for the murder of Hallet Greenman, at Florida, Montgomery Co., N. Y., Nov. 24, 1839. The homicide was committed during a fit of intoxication, and the prisoner was found guilty. The Judges of the Supreme Court and the Attorney General certified to the legality of the conviction and the sufficiency of the evidence. The sentence was commuted to imprisonment for life.

II. John Smock was tried in Dec. 1839, for the murder of his wife in the city of New York, Tuesday, June 25, 1839. They were both very intemperate, and in a fit of drunkenness the wound was inflicted, of which she died, a few days after. The physician of the city prison testified that he was labouring under delirium tremens at the time. He was found guilty, with a recommendation to mercy; in accordance with which the sentence was commuted to imprisonment for life.

III. Robert Miller was tried in Oct. 1839, for the murder of Barney Leddy, at Utica, April, 1839. On the trial it was proved that the killing grew out of a drunken quarrel and fight, (without previous animosity,) brought on by a jug of liquor which the deceased brought to Miller's house. The accused was convicted and hung.

IV. Jabez Fuller was tried in March, 1840, for the murder of his wife at Somerstown, Westchester Co., May 26, 1839. They were both very intemperate, and in a fit of intoxication, prompted by jealousy, he injured her so severely by stamping upon her, that she died four days afterward from the effect of her bruises. It appeared from the testimony, that he was of intemperate habits, and quick tempered; but when sober, of a civil and quiet demeanour. He was convicted, and hung, May 22, 1840.

V. John Johnson was tried in Nov. 1840, for the murder of his wife at Buffalo, Aug. 19, 1840. It was proved on the trial that he was much intoxicated on the day of the murder, though several witnesses gave him a good character, as a quiet and peaceable man, industrious and trusty. He was convicted and hung on the 19th of June, 1841. The law will be found fully discussed in the following cases.

Penn v. McFall, Add. 257. U. S. v. Drew, 5 Mason R. 29, 30. 3 Am. Jur. 7. S. C.