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[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 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 (p).] 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, 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(9).

(P) 1 Hale, P. C. 34.

(9) As to asylums for criminal lunatics, see 23 & 24 Vict. c. 75, amended by 30 Vict. c. 12. See also 14 & 15 Vict. c. 81, as to the re

moval to England, and confinement there, of persons tried in India, and acquitted on the ground of insanity.

Moreover, by 27 & 28 Vict. c. 29 (r), if any person confined in prison under any charge or sentence (whether of death or of lighter degree) shall appear to be insane, and that fact be duly certified by two of the visiting justices or otherwise, a secretary of state 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.

[In the bloody reign, indeed, 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 (s). 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, 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 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


() By this Act a previous statute on the same subject, 8 & 4 Vict. c. 64, was in part repealed.

(8) 33 Hen. 8, c. 20.
(t) 3 Inst. 6.

“ indulgence given to great crimes” (u). The line of distinction 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 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;

(u) Some of the principal cases the law, however, is to be consiin which the defence of unsoundness dered as conclusively settled by this of mind, in criminal charges, has been authority, it would seem to be a still discussed, are Arnold's case, 16 St. more correct question whether hc Tr. by Howell, 764; Lord Ferrers' committed the act under the incase, 19 ibid. 947; Hadfield's case, Nuence of any insane delusion, disCollinson on Lun. 480; Parker's guising from him its murderous case, ibid. 477; Bowler's case, ibid. character; for, if he did, then, 673; Bellingham's case, ib. Addend, (whether the delusion was upon 636; Offord's case, 5 C. & P. 168; matter of opinion or matter of fact,) Oxford's case, 9 C. & P. 533; R. it is difficult to assent to the docv. Higginson, 1 C. & K. 129; and trine that a consciousness only that Macnaughten's case, 10 C1. & Fin. he was acting wrong, or contrary 200.

to law, would warrant convicting (x) This opinion was given in an- him for murder. At all events, it swer to certain questions propounded seems scarcely consistent with huto the judges by the lIouse of Lords, manity, under such circumstances, in reference to the discussion in that

to carry the capital sentence into house occasioned by Macnaughten's effect. In Lord Erskinc's celccase, in the year 1843. (See 10 CI. & brated speech in defence of HadFin. above cited.) On the same oc- field, the case is put of a lunatic casion the judges said, that the ques- destroying a man under the belief tion that has been generally left to that he is a potter's vessel, and with the jury in cases of this description the design of inflicting a malicious is, whether the accused at the time injury on the property of a third of doing the act know the difference person, whom he believes to be the between right and wrong; but that owner of the vessel; and Lord Erg. the more correct question is, whc- kine argues, that it would be imther he had a sufficient degree of possible, in such a case, to convict reason to know that he was doing for murder. (As to Hadfield's case, an act that was wrong. Unless sce Collinson on Lunacy, p. 480.)

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 (y). “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" (z). 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 consti“ tutional necessity ; a Spaniard drinks through choice,

or out of the mere wantonness of luxury; and drunken

ness,” 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” (a). 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” (6). The Roman law, indeed, made great allowances for this vice: “ per vinum delapsis capitalis pæna remittitur(c). But the law of

(y) See Beverley's case, 4 Rep. 125; Reniger v. Fogossa, Plow. 19; R. v. Carroll, 7 C. & P. 145.

(z) 1 Inst. 247.

(a) Sp. L. b. 14, c. 10.
(6) Puff. L. b. 8, c. 3.
(c) Ff. 49, 16, 6.

[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,

II. Another 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 find more occasion to speak hereafter: at present only observing, that if any accidental mischief happens to follow from the performance of any lawful act with due caution, the party stands excused from all guilt (d).] But if a man, by doing anything unlawful, (at least if it be malum in se, and not merely malum prohibitum,) or by doing anything lawful but without due caution,-produce a consequence which he did not foresee or intend, as the death of a man or the like, his want of foresight shall be no excuse, but he is criminally guilty of whatever consequence may follow.

[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 to form a criminal act. But this must be an ignorance or mistake in fact, and not an error in point of law. As if a man, intending to kill a thief or housebreaker in his own house, by mistake kills one of his family, this is no criminal action (e): 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 wilful 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 defence. Ignorantia juris, quod quisque tenetur scire, neminem excusat(f),

(d) 1 East, P. C. c. 5, s. 36. (f) See R. v. Bailey, R. & R. (e) Cro. Car. 538; 1 Hale, P.C. 42. C. C. 1.

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