OF CRIMINAL RESPONSIBILITY, AND PLEAS IN BAR OF EXECUTION.
In the preceding pages we have endeavoured to lay down such rules, and to draw attention to such points, as may enable medical witnesses to assist the ends of Justice in detecting the perpetration of crime; another duty remains: having discovered the guilty, questions may yet arise, as to whether the criminal is or is not a proper subject for the severity of the law; 1st, in respect of natural incapacity, as in the case of infants and idiots a nativitate; 2d, of accidental incapacities, as in lunacy and temporary derangement of intellect. So also it may be a medical question whether a prisoner stands mute of malice, or by the visitation of God; and 3dly, of temporary unfitness for punishment, as where judgment on a female is to be respited, by reason of her pregnancy; to these we shall add the plea of non-identity, for though we have already stated that personal identity does not appear to us to be a subject peculiarly appropriate to medical jurisprudence,[[87]] yet as the greater number of writers on this subject have so considered it, we should not be warranted in omiting all notice of the subject.
“It is clear that an infant above fourteen and under twenty-one is equally subject to capital punishments, as well as others of full age; for it is præsumptio juris, that after fourteen years they are doli capaces, and can discern between good and evil; and if the law should not animadvert upon such offenders by reason of their nonage, the kingdom would come to confusion.[[88]] Experience makes us know, that every day murders,[[89]] bloodsheds, burglaries, larcenies, burning of houses,[[90]] rapes,[[91]] clipping and counterfeiting of money, are committed by youths above fourteen and under twenty-one; and if they should have impunity by reason of such their minority, no man’s life or estate would be safe. In my remembrance, at Thetford, a young lad of sixteen years old was convict for successive wilful burning of three dwelling houses, and in the last of them burning a child to death, and yet had carried the matter so subtilly, that by a false accusation of another person for burning the first house, an innocent person was brought in danger, if it had not been strangely discovered: he had judgment to die, and was executed accordingly.” 1 Hale. P. C. p. 25.
But though above fourteen, criminal incapacity cannot be presumed on the mere pretence of nonage, children considerably under that age may be found doli capaces, and be tried, and even executed accordingly, whenever from peculiar evidence it shall appear that by precocity in vice or intellect they can clearly distinguish right from wrong, malitia supplet ætatem: thus John Dean was executed under the age of nine for arson and murder; and William York, in more modern times, was tried and condemned for murder at ten.[[92]] Seven years of age, or the period of absolute infancy, is probably the limit within which actual crime or sin cannot be imputed morally or legally; (see 1 H. P. C. p. 19; 1 Hawk. P. C. p. 1; 1 Bl. Com. p. 464); but the law of England does not appear to have fixed any determinate period;[[93]] Alfred decreed that none should be punished capitally for theft under twelve years of age. Athelstan enlarged the period till fifteen, (see notes 1 H. P. C. p. 12, 23); but the old standard of twelve appears to have prevailed from the time of Hen. 1; thus in the time of Ed. 1, Adam de Arnhale, æt. 12, was committed to the custody of the marshal for stealing nine shillings at night in the dwelling house; postea habito respecto ad imprisonamentum, quod prædictus Adam habuit, & etiam ad teneram ætatem ejusdem Adæ, eo quod non nisi ætatis 12 annorum, qui talis ætatis judicium ferre non potest, ideo de gratia regis deliberetur, 1 P. C. 24; but he was spared, as Sir M. Hale says, de gratia regis, in respect that he was passed the old standard of twelve years.
If an infant clearly under seven years of age be indicted, the case ought not to go to the jury; but the prisoner should be discharged by the court; for “he cannot be guilty of felony, whatever circumstances of discretion may appear; for ex presumptione juris he cannot have discretion, and no averment shall be received against that presumption;” (1 H. P. C. p. 28) but if it be not apparent that he is under seven, and he have sufficient discretion, then, as in the case mentioned [note [[94]]] the issue may go to the jury; and with their verdict they may find, according to the evidence, that he was under seven years of age; and the court may then discharge him, for it was no felony. 1 H. P. C. 27. Also if the prisoner be above seven, and under twelve years of age, unless there be apparent proof of capacity; but it is safer for the court to discharge him, for his trial can answer no useful purpose; and if he once be a felon convict by the verdict of a jury, though subsequently pardoned, the circumstance will probably give a stamp to his character which is never likely to be effaced. Therefore if the humanity of magistrates and prosecutors does not previously interpose to save children from this peril, and the contamination of a gaol, the discretion of the judge may; and it is fortunate that, in London at least, public munificence, in this as in many other cases, has supplied the want of legislation: the Philanthropic and other similar societies afford a refuge and prospect of amendment for the infant culprit, to them therefore he should be committed.
As the fact of absolute infancy may generally be ascertained by the mere view of the party, and his capacity ascertained by questions propounded by the court, an infant prisoner may, as before stated, be discharged without further trial; not so however in cases of idiotcy, madness, or lunacy, these must be tried by a jury, for they may easily be feigned, and it is therefore by evidence of previous conduct that the question is to be determined, rather than by reference to the prisoner’s demeanor in court, which may probably be counterfeit.
If the prisoner be found to be an idiot, he must be discharged of the indictment, and handed over to safe custody,[[95]] but if he be only lunatic, then other questions arise; first, whether the prisoner is then in a lucid interval, for if he be not, he should not be arraigned at that time; “but the judge in his discretion may discharge the jury of him, and remit him to gaol to be tried after the recovery of his understanding, especially if any doubt appear upon the evidence touching the guilt of the fact, and this in favorem vitæ; and if there be no colour of evidence to prove him guilty, or if there be a pregnant evidence to prove his insanity at the time of the fact committed, then upon the same favor of life and liberty it is fit it should be proceeded in the trial in order to his acquittal and enlargement.” 1 H. P. C. 35.[[96]]
Secondly, if he be then in a lucid interval, and therefore fit to be tried, whether he was so at the time of the act committed, and this must be tried according to the whole evidence both of the fact and the lunacy, on a plea of not guilty.[[97]]
For criminal purposes it is not sufficient that a prisoner have been previously found idiot or lunatic, or the contrary, by inquisition in chancery, 1 H. P. C. p. 33, though the circumstance may create a strong presumption. For there may be a partial insanity which may disqualify a man from the management of his estate, and therefore render him a fit subject for the equitable protection, although he may have a perfect sense of right and wrong in criminal matters, and ought therefore to be responsible for his acts. Personal antipathies and fancied injury are constant subjects of limited insanity; but these ought not to excuse murder; for such a doctrine, by removing the restraints of fear, would constantly convert the passions of hatred and revenge, in themselves limited madness, into absolute insanity.
“He that is non compos mentis and totally deprived of all compassings and imaginations, cannot commit high treason by compassing or imagining the death of the king; for furiosus solo furore punitur; but it must be an absolute madness, and a total deprivation of memory.” Coke, P. C. p. 3; but in Beverly’s case, 4 Rep. 124, he says “Mes in ascun cases non compos mentis poit committe haut treason, comme si il tua, ou offer a tuer le roy.” “This,” says Sir Mathew Hale, “is a safe exception, and I shall not question it, because it tends so much to the safety of the king’s person: but yet the same author (Coke P. C. p. 6) tells us, that though this was anciently thought to be law, yet it is not so now; for such a person as cannot compass the death of the king by reason of his insanity, cannot be guilty of treason within the statute of 25 Ed. 3.” Nothing can be more honourable to the independent impartiality of the English law than such an interpretation, amply illustrated in the cases of Hatfield (27 How. St. Tri.) and others, who had attempted the life of his late Majesty George the 3d; and this more especially, as the king must at all times be more exposed to this species of attack than any other person; for beside the sense of supposed wrong, delay or perversion of justice, exaggerated political feeling,[[98]] or other causes all pointing the maniac to the same object, there is no madness more frequent than fancied greatness; lunatic asylums are filled with imaginary emperors, kings, princes, and nobles, whose only glimmering of reason is to direct their vengeance against the supposed usurpers of their dignities.
“He who is guilty of any crime whatever through his voluntary drunkenness shall be punished for it as much as if he had been sober.” 1 Hawk. P. C. 3. “A drunkard,” says Sir E. Coke, (1 Ins. 247) “who is voluntarius dæmon, hath no privilege thereby.” 4 Bl. Com. 26. But if by continual drunkenness he have become absolutely mad, then the original cause is not referred to, and he may be excused; not so however if there be only a predisposition to temporary madness, and that madness be voluntarily excited by drinking. There are many men, soldiers, who have been severely wounded, in the head especially, who well know that excess makes them mad; but if such persons wilfully deprive themselves of reason, they ought not to be excused one crime by the voluntary perpetration of another.[[99]]
“He who incites a madman (idiot, infant, or lunatic) to do a murder or other crime, (as to kill himself) is a principal offender, and as much punishable as if he had done it himself.” 1 Hawk. P. C. p. 3 and 118. 1 H. P. C. 617.
“It seems agreed at this day, that if one, who has committed a capital offence, become non compos before conviction, he shall not be arraigned; and if after conviction, that he shall not be executed.” 1 Hawk. P. C. 3; 1 H. P. C. 36. Indeed in the bloody reign of Henry the eighth, a statute was made (33 H. 8, c. 20) which enacted, that if a person, being compos mentis, should commit treason, and after fall into madness, he might be tried in his absence, and should suffer death, as if he were of perfect memory. But this savage and inhuman law was repealed by the Stat. 1 and 2 P. and M. c. 10. For as is observed by Sir Ed. Coke, “the execution of an offender is for example, ut pœna 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 no example to others.” 4 Bl. Com. p. 25.
Pregnancy is a good plea in bar of execution; but it does not prevent trial or sentence; in a recent instance, however, when a woman was brought to the bar evidently in labour, she was remanded by the court; and query, whether this discretion ought not to be exercised in all cases of advanced pregnancy; for the agitation of the trial may be of more fatal effect than the judgment of the law, and the unfortunate woman, though acquitted, may perish with her child from the mere effect of mental distraction.
When the plea of pregnancy is made to stay execution “the judge must direct a jury of twelve matrons or discreet women to inquire the fact: and if they bring in their verdict quick with child (for barely with child[[100]] unless it be alive in the womb, is not sufficient) execution shall be stayed generally till the next session: and so from session to session till either she is delivered, or proves by the course of nature not to have been with child at all. But if she once hath the benefit of this reprieve, and has been delivered, and afterwards become pregnant again, she shall not be entitled to the benefit of a further respite from that cause.[[101]] For she may now be executed before the child is quick in the womb; and shall not, by her own incontinence, evade the sentence of justice.” 4 Bl. Com. 395; (see also 2 Hawk. P. C. 658, and authorities there.) But Sir M. Hale says that though she be quick a second time she shall have no respite on that account. 1 P. C. 369. And yet he afterwards draws a nice distinction in favorem prolis, that if the woman were not quick, or with child at all,[[102]] at the time of the first inquest of the matrons, and afterwards become with child, she shall have her respite; “for the advantage she had at first was not really by reason of pregnancy, but by a mistake of the jury of women.” “And therefore as hath been said, in all cases of reprieves for pregnancy, the judge ought to make a new demand, what the prisoner hath to say wherefore execution should not be awarded.” Ib. And so in all cases where any time intervenes between the attainder and the award of execution, for the party may have become insane, or may plead pregnancy, or a pardon, or an act of grace, or diversity of person, that he is not the same that was attainted. 1 Bl. Com. 396.
This brings us to the last of the pleas which we have proposed to treat upon under this head. The question of Personal Identity may arise in many ways; as whether a child claiming an inheritance is the same that he pretends, or is pretended to be, as in the Douglas or Anglesea causes; (vide ante) whether a prisoner is actually the person who committed a particular offence, when the jury tries the fact and the identity together; and where a prisoner after conviction escapes and is retaken, whether he is the same that was convicted.[[103]] The former cases we have noticed under the heads of Supposititious Children, vol. i, p. 220, warning our readers not to be too hasty in determining identity upon mere resemblance.[[104]] And in the last case “a jury shall be impanneled to try the collateral issue, namely, the identity of his person; and not whether guilty or innocent; for that has been decided before. And in these collateral issues the trial shall be instanter, and no time allowed the prisoner to make his defence or produce his witnesses, unless he will make oath that he is not the person attainted: (Fors. C. L. 41) neither shall any peremptory challenges of the jury be allowed the prisoner; though formerly such challenges were held to be allowable, whenever a man’s life was in question.” 4 Bl. Com. 396. And query whether this is not the better doctrine; the case of Mr. Radcliffe, brother of Lord Derwentwater, (Fors. C. L. 41) in which the contrary was held, was for high treason shortly after the rebellion of 1745; and as Sir M. Forster says, speaking of Monmouth’s attainder, “that was a time of great heat and violence, and few things then done ought to be drawn into example.” Ib. 44. There does not appear to be any good reason why a prisoner should not have all the safeguards on a collateral issue or inquest of office, which are allowed on the main issue; especially when, as in the present instance, his life depends upon the question.