We have thus then presented to the reader the various avenues of information, which the sciences of anatomy and physiology are capable of disclosing; and it will, we trust, appear evident, that the forensic physician can rarely furnish more than presumptive evidence in the support of cases of imputed child-murder.
With the moral circumstances of the case the medical-jurist can have nothing to do; and yet it is impossible not to inquire whether the deed may not frequently be the result of insanity. Such was the opinion of Dr. Hunter; and we cordially agree with Dr. Smith, that a verdict to this effect might be returned in many cases of this kind with at least as much truth, as in some of suicide. It must not be urged, continues the last mentioned author, that the insanity here is not real because temporary, as long as temporary insanity is so readily admitted in the other case; and we know well that in many instances of the like state of mind, where suicide is unsuccessfully attempted, the supposed lunacy shortly disappears. This plea, however, rarely avails the child-murderer; and yet if the loss of property, or other misfortunes, are to be taken into account as presumptive causes of insanity where there is real evidence of the fact, (the feelings arising from which being the real goad that stings some men to their fate) are we to give a modest female,—one that has probably erred through excess of confidence and attachment—no credit for despair, and distraction, under the anticipation of the infamy that is approaching her?[[86]]
It is stated by several authors, that the period at which puerperal mania and phrenitis supervenes is variable, but that it is seldom, if ever, sooner than the third day; often, not for a fortnight; and, in some cases, not for several weeks after delivery. We must be cautious, however, in not applying this general assertion, to the disparagement of particular cases; for several instances are recorded which furnish striking exceptions to the rule. “In the year 1668 at Aylesbury, a married woman of good reputation being delivered of a child, and not having slept many nights, fell into a temporary phrenzy, and killed her infant in the absence of any company; but, company coming in, she told them she had killed her infant, and there it lay; she was brought to gaol presently, and after some sleep she recovered her understanding, but marvelled how or why she came thither; she was indicted for murder, and upon her trial the whole matter appearing, it was left to the jury with this direction, that if it did appear that she had any use of reason when she did it, they were to find her guilty; but if they found her under a phrenzy, though by reason of her late delivery and want of sleep, they should acquit her; that had there been any occasion to move her to this fact, as to hide her shame, which is ordinarily the case of such as are delivered of bastard children and destroy them; or if there had been jealousy of the husband that the child had been none of his; or if she had hid the infant, or denied the fact, these had been evidences that the phrenzy was counterfeit; but none of these appearing, and the honesty and virtuous deportment of the woman in her health being known to the jury, and many circumstances of insanity appearing, the jury found her not guilty, to the satisfaction of all that heard it.” 1 H. P. C. p. 36. Had this woman been of doubtful character, though innocent, she might have been executed, for want of medical evidence to prove the nature and frequency of puerperal insanity.
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]]