[barns (an offence at that time capital); and it appearing that he had malice, cunning, and revenge, he was found. guilty, condemned, and hanged accordingly (). Thus, also, in still later times, a boy of ten years old was convicted on his own confession of murdering his bedfellow, there appearing in his whole behaviour plain tokens of a mischievous discretion; and, as the sparing this boy merely on account of his tender years might be of dangerous consequence to the public, by propagating a notion that children might commit such atrocious crimes with impunity, it was unanimously agreed by all the judges that he was a proper subject of capital punishment (i). 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 ().] After an infant has attained fourteen, he is presumably doli capax, and has no privilege by reason of his non-age, except in cases of omission and the like, as already noticed (1)—and at twenty-one, when infancy ceases, no privilege whatever in respect of age is recognized by law. [Another case in which the defect of understanding excuses from guilt, is that of an idiot or a lunatic; for the rule of law as to the latter (which may be easily adapted also to the former) is, that "furiosus furore solum punitur" (m). 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 (n). Also, by the common law, if a man in his sound memory commits a capital offence, and, before arraignment, becomes mad, he ought not to be arraigned for it; because he is not able to plead with that advice and caution (h) Emlyn on 1 Hal. P. C. 23. (i) Foster, 72. (k) of the particular crime of rape, an infant under the age of fourteen cannot be convicted; and here, therefore, the doctrine malitia supplet ætatem does not apply. (1) Vide sup. p. 23. (m) As to the state of the law relative to idiots and lunatics in general, vide vol. I. pp. 510516. (n) 3 Inst. 6. [that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defence? 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 law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution (o).] And special provisions, of the same tendency, are now made by statute; for by 39 & 40 Geo. III. c. 94, it is enacted, that if a person charged with any offence be brought up to be discharged for want of prosecution, and appear to be insane, the court may order a jury to be impanelled to try the sanity; and, if they find him insane, may order him to be kept in custody till the pleasure of the Crown be known;-that if a person indicted for any offence appear insane, the court may (on his arraignment) order a jury to be impanelled to try the sanity; and if they find him insane, may order the finding to be recorded, and the insane person to be kept in like manner; and that if, upon the trial for treason, murder or felony (p) insanity at the time of committing the offence is given in evidence, and the jury acquit, they must be required to find specially, whether he was insane at the time of the commission of the offence, and whether he be acquitted on that account; and if they find in the affirmative, the court may order him to be kept in like manner, till the Crown's pleasure be known (q). Moreover, by 27 & 28 Vict. c. 29 (r), if any person confined in prison (0) 1 Hale, P. C. 34. (p) See R. v. Little, R. & R. 430. By 3 & 4 Vict. c. 54, s. 3, this provision is extended to persons charged with misdemeanors. (2) As to asylums for criminal lunatics, see 23 & 24 Vict. c. 75, amended by 30 & 31 Vict. c. 12. See also 14 & 15 Vict. c. 81, as to the removal to England, and confinement there, of persons tried in India, and acquitted on the ground of insanity. (r) By this Act a previous statute on the same subject, 3 & 4 Vict. c. 54, was in part repealed. under any charge or sentence (whether of death or of lighter degree) shall appear to be insane, and that fact be duly certified to a secretary of state, he may direct two or more physicians or surgeons to inquire into the alleged insanity; and if they shall find him to be insane, and certify accordingly, may issue his warrant to convey such person to the proper asylum for the reception of such insane persons. [It is true that in the bloody reign of Henry the eighth, a statute was made, 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 (8). But this savage and inhuman law was repealed by the statute 1 & 2 Ph. & M. c. 10. For, as is observed by Sir Edw. Coke (t), "the execution of an offender is by way of 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 of no example to others.] On the other hand, however, it is not every kind or degree of insanity that will exempt a man from responsibility for his acts; and it may be laid down in general, that a partial unsoundness of mind will be no excuse. "It is very difficult, indeed," as Lord Hale observes, "to "define the invisible line that divides perfect and partial insanity; but it must be duly 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" (u). The line of distinction 66 (8) 33 Hen. 8, c. 20. (t) 3 Inst. 6. (u) Some of the principal cases in which the defence of unsound. ness of mind, in criminal charges, has been discussed, are Arnold's case, 16 St. Tr. by Howell, 764; Lord Ferrers' case, 19 ib. 947; Hadfield's case, Collinson on Lun. 580; Parker's case, ib. 477; Bow referred to by Hale, has never yet been fully traced. The judges in a modern case, however, gave it as their opinion (x), that if a man who takes another's life appears to have known at the time that he was acting contrary to law, his being under an insane delusion that he was thereby redressing some supposed grievance or producing some public ler's case, ib. 673; Bellingham's case, ib. Addend. 636; Offord's case, 5 C. & P. 168; Oxford's case, 9 C. & P. 525; R. v. Higginson, 1 C. & K. 129; and Macnaughten's case, 10 Cl. & Fin. 200. (x) This opinion was given in answer to certain questions propounded to the judges by the House of Lords, in reference to the discussion in that house occasioned by Macnaughten's case, in the year 1843. On the same occasion the judges said, that the question that has been generally left to the jury in cases of this description is, whether the accused at the time of doing the act knew the difference between right and wrong; but that the more correct question is, whether he had a sufficient degree of reason to know that he was doing an act that was wrong. Upon this subject the Report of the Criminal Code Bill Commission has the following remarks (p. 17): "The obscurity "which hangs over this subject "cannot be altogether dispelled "until our existing ignorance as "to the nature of the will and the "mind, the nature of the organs "by which they operate, the man"ner and degree in which those operations are interfered with by "disease, and the nature of the "diseases which interfere with 66 gree with the insane element"the judge can apportion the "punishment to the degree of "criminality, making allowance "for the weakened or disordered "intellect. But in a case of mur'der, this can only be done by an "appeal to the executive; and we are of opinion that this difficulty "cannot be successfully avoided by any definition of insanity which "would be both safe and practic"able, and that many cases must "occur which cannot be satisfac66 torily dealt with otherwise than 'by such an appeal." benefit, will not exempt him from the guilt of murder; neither will he be exempted by being under an insane delusion as to facts; provided the supposed facts, if real, would not have justified the act; but that, on the other hand, he will be exempted by such delusion as last mentioned, where the facts, if real, would have justified the act. [Again: as to artificial, voluntarily contracted madness by drunkenness or intoxication,-which, depriving men of their reason, puts them in a temporary phrenzy,-our law looks upon this as an aggravation of the offence, rather than as an excuse for any criminal misbehaviour. "A "drunkard," says Sir Edward Coke, "who is voluntarius "dæmon, 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" (y). 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, "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 Pitacus 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" (a). The Roman law, indeed, made great (y) 1 Inst. 247. (a) Puff. L. b. 8, c. 3. |