A TREATISE O F THE PLEAS OF THE CROWN. BOOK THE FIRST. CHAPTER THE FIRST. HE guilt of offending against any law whatfoever, i Hale 15. neceffarily fuppofing a wilful difobedience, can never 4 Comm. 21. justly be imputed to thofe who are either incapable of understanding it, or of conforming themselves to it. There- fore, before I come to the feveral kinds of offences, I fhall fhew what degrees of difcretion and freedom are required in the commiffion of them. For the better understanding whereof, I fhall confider what offenders are excufeable.-Firft, in re- spect of their want of reafon.-Secondly, in refpect of their fubjection to the power of others. Sect. 1. As to the First point it is to be obferved, that those who are under a natural difability of diftinguifhing be- B. Cor. 6t. tween good and evil, as (1) infants under the age of dif- Fult. 125, 126. (1) On the attainment of fourteen years of age, the criminal actions of infants are fubject to the fame modes of construction as thofe of the rest of fociety; for the law prefumes the human mind has acquired, at this period, a compleat fenfe of right and wrong. Dr. & St. c. 26. Co. Lit. 79.171.247. Dait. 476. 505.-During the interval between the age of fourteen years and that of feven, the mind is prima facie prefumed to be unacquainted with guilt. And thefe prefumptions entertained in favour of innocence, accumulate in an inverfe proportion with the decrease and tenderness of the offender's years. 1 Hale 25. 27. From this fuppofed imbecillity of mind, the prote&ive humanity of the law will not, without anxious circumfpection, permit an infant to be convicted on his own confeilion C. Jac. 466.1 Hale 24. Fof. 70. Yet if it appear by strong and pregnant evidence and circum- ftances that he was perfectly confcious of the nature and malignity of the crime, the verdict of a jury may find him guilty, and judgment of death may be given against him. I Hale 20. 25. 434. B. Cor. 133. 4 Comm. 23. Fof. 71. O. B. 1784. p. 971. For malitia fupplet ætatem; and the capacity of contracting guilt is measured more by the apparent ftrength of the offender's under- ftanding than by years and days. B. Cor. 74. 4 Comm. 23. But within the age of even years an infant cannot be punished for any capital offence, whatever circumstances of a mischievous dif cretion may appear; for ex prefumptione juris, he cannot have difcretion: and against this prefump- tion no averment thall be admitted. Mirr. c. 4. f. 6. Plowd. 19. 1 Hale 20. Fof. 349. 4 Comm. 23. Cowp. 222, 223. Therefore if a child under this age steal the goods or fire the house of another, be cannot be punished for either the larceny or the arfon. 1 Hale 19. 514. Fof. 113. 349. But there is an instance of a pardon granted to an infint for homicide committed within the cretion, ideots and lunaticks, (2) are not punishable by any criminal profecution whatfoever. (2) Idency is a defect of understanding, from the moment of birth; Co. Litt. 247. F. N. B. 530. I Comm. 304. a perfon therefore, born deaf and dumb is primâ facie within this definition. 3. Cor. 217. 1 Hale 34.-Lunacy is a partial derangement of the intellectual faculties, the fenfes returning at uncertain intervals; the offender therefore is only protected from punishment for acts done during the prevalence of his diforder. 1 Hale 31. 4 Comm. 24.-Madness is a total alienation of the mind. 1 Hale 30. 4 Co. 124. Thefe defects, whether permanent or temporary, must be unequivocal and plain, not an idle frantic humour, or unaccountable mode of action, but an abfolute difpoffeffion of the free and natural agency of the human mind. 8 St, Tr. 322. Hale c. 4. O. B. 1784. p. 257 Pult. 6. 22 Aff. I Sect. 2. Indeed it was anciently holden, in refpect of that high regard which the law has for the fafety of the king's perfon, that a madman might be punished as a traitor, (3) for killing or offering to kill the king; but this is contradicted by the later opinions. 4 Comm. 25.—(3) See 33 H. 8. c. 20. repealed by 1 & 2 P. & M. c. 10. Sect. 3. And it feems agreed at this day, that if one, who has committed a capital offence, become non compos before conviction, he fhall not be arraigned; and if after conviction, that he shall not be executed. 4 St. Tr. 205. 8 St. Tr. 285. 4 Comm. 24, 25. 388. Sect. 4. But by 17 Geo. 7. c. 5. f. 20. (which seems agreeable to the ancient common law) it is enacted, "That it fhall (The 12 Anne, c. 23. upon this" and may be lawful for any two or more juftices of the peace fubject which "where a dangerous lunatick fhall be found, by warrant was recited in "under their hands and feals, directed to the conftables, "churchwardens, and overfeers or fome of them, of the "parish or place, to caufe fuch lunatick fo to be apprehend"ed, and kept fafely locked up in fome fecure place within "the county, or precinct where the parish or place fhall lie, "as fuch juftices fhall under their hands and feals direct and the former edi. : And. 107. IC9. 1 Sav. 50. 56. 57 Sum. 226. : Hale 35. 66 appoint; and (if fuch juftices find it neceffary) to be there "chained, if the laft legal fettlement of such person, shall "be in any parifh or place within fuch county or precinct; "and if fuch fettlement fhall not be there, then fuch dangerous lunatick shall be sent to the laft legal fettlement by pass "(mutatis mutandis) as aforefaid; and fhall be locked up or “ chained by warrant of two juftices of the county to "which fuch perfon is fo fent (4)."-And, by the common law, if it be doubtful whether a criminal, who at his trial is in appearance a lunatick, be such in truth or not, it fhall be tried by an inquest of office, to be returned by the (4) But this at relates only to vagrant lunaticks who are ftrolling up and down the country, and does not extend to perfons of rank and condition in the world, whofe relations can take care of them properly by applying to the court of Chancery. 2 Atk. 52. fheriff Seal. 5. And one who wants Elbren a commit a crims: 1. again the perica cr poffe of accer, te ftill be simpelled in a civil action to give fatisfaitza for me samagi 289. Plow. 154 1 1. t 410 Pro- 245. BEWILL - So 1 Hale 15, 16 20 4 C 22. 2 Comm. 2918 Sel. 6. And he who is galty of any crine whatever. through his voluntary drunkennels, fhall be pubes Stras much as if he had been lober. 4 Comm. 16. $ Sc. To fg 4 C÷ St. 7. Alfo be, who incites a madman to do a marker or other crime, is a principal offender, and as much pan able as if he had done it himself. P S. P. C. 15. Set. 8. And if it appear by the circumftances, that an ic. F. Cor. 118. fant under the age of difcretion could diftinguish between good sum 14 65 and evil, as if one of the age of nine or ten years ki.. another, in Alp and hide the body, or make excuíes, or hide himself, he may B. Cor. 6. 61. be convicted and condemned, and forfeit, &c. as much as if he were of full age. But in fuch a cafe the judges will in 17. prudence refpite the execution, in order to get a pardon: and it is faid, that if an infant apparently wanting diicretion bei Hue 434+ indicted and found guilty of felony, the juftices themselves 59 53 may difmifs him without a pardon, &c. (7) 13. H. 5. 11. (7) This authority to dismiss him must be understood of a reprieve Lefore juigment, er that the jury find the prisoner within the age of feven years, or not of thcient aifcretion to judge ber• tween good and evil. 1 Hale 27. S. P. C. 16. 42. Sect. 9. As to the fecond point, viz. How far thofe are beges Inne 5S. to be excused who are under the power of others :-A feme 27 Aff. 40. covert is fo much favoured in refpect of that power and au- Sum. 65. thority which her husband has over her, that the fhall not 4 Comm. 28. 1 Hale 45. 516. 2 vol. 320. B. Cor. 16. 108. Dalt. 134. 157. O. B. 1784. p. 119. 756, B 2 fuffer Kely. 31. cretion, ideots and lunaticks, (2) are not punishable by any criminal profecution whatsoever. (2) Idency is a defect of understanding, from the moment of birth; Co. Litt. 247. F. N. B. 530- 1 Comm. 304. a perfon therefore, born deaf and dumb is prima facie within this definition. 3. Cor. 217. Hale 34.-Lunacy is a partial derangement of the intellectual faculties, the fenfes returning at uncertain intervals; the offender therefore is only protected from punishment for acts done during the prevalence of his disorder. 1 Hale 31. 4 Comm. 24.-Madness is a total alienation of the mind. 1 Hale 30. 4 Co. 124. Thefe defects, whether permanent or temporary, must be unequivocal and plain, not an idle frantic humour, or unaccountable mode of action, but an abfolute difpoffeffion of the free and natural agency of the human mind. 8 St, Tr. 322. I Hale c. 4. O. B. 1784. p. 257. 2 Roll. 324. Reg. 309. Sect. 2. Indeed it was anciently holden, in respect of that F. Cor. 351. high regard which the law has for the fafety of the king's person, that a madman might be punished as a traitor, (3) for killing or offering to kill the king; but this is contradicted by the later opinions. Sum. 43. 3 Inft. 6. Co. Lit. 247. 4 Co. 124- 26 Alf. 27. Sav. 57. Sum. 10. 1 And. 107. 109. 3 Init. 4. 6. i Hale 34, 35. Pult. 6. 22 Aff. 56. (The 12 Anne, c. 23. upon this fubject which was recited in the former edi. tion is repealed by 13 Geo. 2. c. 24.) 4 Comm. 25.—(3) See 33 H. 8. c. 20. repealed by 1 & 2 P. & M. c. 10. Sect. 3. And it seems agreed at this day, that if one, who has committed a capital offence, become non compos before conviction, he fhall not be arraigned; and if after conviction, that he fhall not be executed. 4 St. Tr. 205, 8 St. Tr. 285. 4 Comm. 24, 25. 388. Sec. 4. But by 17 Geo. 2. c. 5. f. 20. (which feems agreeable to the ancient common law) it is enacted, "That it fhall "and may be lawful for any two or more justices of the peace "where a dangerous lunatick fhall be found, by warrant "under their hands and feals, directed to the conftables, "churchwardens, and overfeers or fome of them, of the "parish or place, to caufe fuch lunatick fo to be apprehend"ed, and kept fafely locked up in fome fecure place within "the county, or precinct where the parish or place fhall lie, as fuch juftices fhall under their hands and feals direct and "appoint; and (if fuch juftices find it neceffary) to be there "chained, if the laft legal fettlement of such person, shall "be in any parifh or place within fuch county or precinct; "and if fuch fettlement fhall not be there, then fuch dangerous lunatick shall be sent to the last legal fettlement by pass "(mutatis mutandis) as aforefaid; and fhall be locked up or 1 Sav. 50. 56. “ chained by warrant of two juftices of the county to " which fuch perfon is fo fent (4)."-And, by the common law, if it be doubtful whether a criminal, who at his trial is in appearance a lunatick, be such in truth or not, it fhall be tried by an inqueft of office, to be returned by the : And. 107. IC9. 57. Sam. 226. 1 Hale 35. (4) But this act relates only to vagrant lunaticks who are frolling up and down the country, and does not extend to perfons of rank and condition in the world, whofe relations can take care of them properly by applying to the court of Chancery. 2 Atk. 52. Theriff fheriff of the county wherein the court fits; (5) and if it be found by them that the party only feigns himself mad, and he ftill refuse to answer, he fhall be dealt with as one that stands mute. (6). (5) Every perfon of the age of difcretion is prefumed of fane memory until the contrary appear, which may be either by the inspection of the court, 1 Hale 33. Tr. p. Pais 14. O. B. 1783. No. 4. By evidence given to the jury, who are charged to try the indictment. 3 Bac. Abr. 81. Hale 33. 35. 36. O. B. 1784. No. 288.-Or, being a collateral iffue, the fact may be pleated and replied to ore tenus, and a venire awarded, returnable inftanter, in the nature of an inquest of office. Foft. 46. Kel. 13. 1 Lev. 61. 1 Sid. 72. 4 Comm. Appen. f. 3. And this method, in cafes of importance, doubt, or difficulty, the court will, in prudence and difcretion, adopt. 1 Hale 35. Sav. 50. 56.1 And. 154. (6) By 12 Geo. 3. c. 20. in felony and piracy the judgment fhall be the fame, on standing mute, as if the prifoner had confeffed the indictment or appeal. Sect. 5. And if one who wants difcretion commit a trefpafs 2 R. Abr. 547. against the perfon or poffeffion of another, he fhall be com- 3 Bac. Ab. 131. pelled in a civil action to give satisfaction for the damage. B. Cor. 6. Hob. 134. Co. Lit. 247. 289. Plow. 364. 2 Inst. 284. 414. Pop. 141. Brownl. 197. Noy 129. C. Jac. 467. 1 Hale 15, 16. 20. 4 Comm. 22. 2 Comm. 2911 Sect. 6. And he who is guilty of any crime whatever, through his voluntary drunkennefs, fhall be punished for it as much as if he had been fober. Sect. 7. Crom. 29. Co. Litt. 247. 1 Hale 32. Plow. 19. 4 Comm. 26. 8 St. Tr. 285. 4 Co. 125. Dalt. c. 148. Alfo he, who incites a madman to do a murder Kely. 53. Dalt. P. 533° or other crime, is a principal offender, and as much punish- 1 Hale 617% able as if he had done it himself. 129. S. Sect. 8. And if it appear by the circumftances, that an in- F. Cor. 118. fant under the age of difcretion could diftinguish between good sum. 44. 65. and evil, as if one of the age of nine or ten years kill another, 12. Afl. 30. and hide the body, or make excufes, or hide himfelf, he may B. Cor. 6. 61. be convicted and condemned, and forfeit, &c. as much as if s. P. C. 15. he were of full age. But in fuch a cafe the judges will in 27. prudence refpite the execution, in order to get a pardon: and Dalt. 305. it is faid, that if an infant apparently wanting difcretion be indicted and found guilty of felony, the juftices themselves 509, 570. may difmifs him without a pardon, &c. (7) 35. H. 6. ti. i Hale 434* Plow. 19. Pult. 125 Fof. 70. (7) This authority to difmifs him must be understood of a reprieve before judgment, or that the jury find the prifoner within the age of seven years, or not of fufficient difcretion to judge be tween good and evil. 1 Hale 27. Sect. 9. As to the second point, viz. How far thofe are Leges In 58. S. P. C. 16. 42. to be excused who are under the power of others :-A feme 27 Aff. 40. covert is so much favoured in refpect of that power and au- Sum. 65. thority which her husband has over her, that fhe fhall not 4 Comm. 28. 1 Hale 45. 516. 2 vol. 320. B. Cor. 16. 108. Dalt. 134. 157. O. B. 1784. p. 119. 786. fuffer B 2 Kely. 31. |