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.