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Upon this report of the chief justice, the judges, having taken time to consider of it, unanimously agreed, 1. That the declarations stated in the report were evidence proper to be left to the jury. 2. That, supposing the boy to have been guilty of this fact, there were so many circumstances stated in the report which were undoubtedly tokens of what Lord Hale calls a mischievous discretion, that he was certainly a proper subject for capital punishment, and ought to suffer; for it would be of very dangerous consequence to have it thought that children may commit such atrocious crimes with impunity. That there are many crimes of the most heinous nature, such as in the present case) the murder of young children, poisoning parents or masters, burning houses, &c. which children are very capable of committing; and which they may in some circumstances be under strong temptations to commit; and therefore though the taking away the life of a boy of ten years old might savour of cruelty, yet, as the example of that boy's punishment might be a means of deterring other children from the like offences, and as the sparing the boy, merely on account of his age, would probably have a quite contrary tendency ; in justice to the public, the law ought to take its course ; unless there remained any doubt touching his guilt. In this general principle all the judges concurred: but two or three of them,

out of great tenderness and caution, advised the chief justice to send another reprieve for the prisoner; suggesting that it might possibly appear, on farther inquiry, that the boy had taken this matter upon himself at the instigation of some person or other, who hoped by this artifice to screen the real offender from justice.

Accordingly the chief justice granted one or two more reprieves ; and desired the justice of the peace who took the boy's examination, and also some other persons, in whose prudence he could confide, to make the strictest inquiry they.could into the affair, and report to him. At length he, receiving no farther light, determined to send no more reprieves, and to leave the prisoner to the justice of the law at the expiration of the last ; but, before the expiration of that reprieve, execution was respited till further order, by warrant from one of the secretaries of state: and at the summer assizes, 1757, the prisoner had the benefit of His Majesty's pardon, upon condition of his entering immediately into the sea service. (w)

It is said that an act making a new felony does not extend to an How far stainfant under the age of discretion, namely, fourteen years old ; (x) tutes extend to and that general statutes which give corporal punishment are not fancy. to extend to infants; and that, therefore, if an infant be convicted in ravishment of ward, he shall not be imprisoned, though the statute of Merton, c. 6, be general in that case. (y) But this must be understood, where the corporal punishment is, as it were, but collateral to the offence, and not the direct intention of the proceeding against the infant for his misdemeanor; in many cases of which kind the infant under the age of twenty-one shall be spared, though possibly the punishment be enacted by parliament. (2)

But where a fact is made felony or treason, it extends as well to infants, if above fourteen years, as to others. And this appears by

(x) York's case, Fost. 70, et seq.

(3) 1 Hale, 706. Eyston and Studde's case, Plowd. Com. 465, a. And see 1 Hale, 21, 22. Bac. Ab. Infancy, (H).

(y) Bac. Ab. Infancy, (II), Plowd. 364. i Hale, 21.

(2) Bac. Ab. Infancy, (H). 1 Hale, 21.

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Of delaying execution where an infant is convicted.

Of persons non ocmpos mentis,

several acts of parliament, as by 1 Jac. 1, c. 11, (a) of felony for marrying two wives, in which there was a special exception of marriages within the age of consent, which in females is twelve, in males fourteen years; so that if the marriage were above the

age

of consent, though within the age of twenty-one years, it was not exempted from the penalty. So by the statute 21 Hen. 8, c. 7, (b) concerning felony by servants that embezzle their masters' goods delivered to them, there was a special provision that it should not extend to servants under the age of eighteen years, who certainly had been within the penalty, if above the age of discretion, namely, fourteen years, though under eighteen years, unless there had been a special provísion to exclude them. And so by the 12 Anne, c. 7,(6) (by which it was made felony without benefit of clergy to steal goods to the value of 40s. out of a house, though the house were not broken open) where apprentices who should rob their masters were excepted out of the act. (c)

In many cases of crimes committed by infants, the judges will in prudence respite the execution in order to get a pardon: and it is said that if an infant apparently wanting discretion be indicted and found guilty of felony, the justices themselves may dismiss him without a pardon. (d). But this authority to dismiss him, must be understood of a reprieve before judgment; or of a case where the jury find the prisoner within the age of seven years, or not of sufficient discretion to judge between good and evil. (e)

II. It has been considered, that there are four kinds of persons who may be said to be non compos.

1. An idiot. 2. One made non compos by sickness. 3. A lunatic. 4. One that is drunk. () But it should be observed, that every person at the age of discretion is presumed sane, unless the contrary is proved: and if a lunatic has lucid intervals, the law presumes the offence of such person to have been committed in a lucid interval, unless it appears to have been committed in the time of his distemper. (9)

An idiot is a fool or madman from his nativity, and one who never has any lucid intervals : and such an one is described as a person that cannot number twenty, tell the days of the week, does not know his father or mother, his own age, &c. : but these are mentioned as instances only; for whether idiot or not is a question of fact for the jury. (h) One who is surdus et mutus a nativitate is in presumption of law an idiot, and the rather because he has no possibility to understand what is forbidden by law to be done, or under what penalties: but if it appear that he has the use of understanding, which many of that condition discover by signs to a very great measure, then he may be tried, and suffer judgment and execution; though great caution should be used in such a proceeding. (J)

(a) Repealed, 9 Geo. 4, c. 31, s. 1. prisoner for a pardon.
(6) Repealed, 7 & 8 Geo. 4, c. 27.

(1) Co. Litt. 247.

Beverley's case, (c) Bac. Ab. Infancy (H). Co. Litt. 4 Co. 124. 147. 1 Hale, 21, 22.

(9) i Hale, 33, 34. (d) 35 Hen, 6, 11 and 12.

(h) Bac. Ab. Idiots, &c. (A). Dy. 25. (e) i Hale, 27. i Hawk. P. C. c. 1, s. 8. Moor, 4, pl. 12. Bro. Idiot, 1. F.N.B. 233. And, quare, whether in any case of an in- (f) i Hale, 34.

And see the note (o) fant convicted by a jury, the judge would where it is said that according to 43 Assis. take upon himself to dismiss him. It is pl. 30, and 8 Hen. 4, c. 2; if a prisoner submitted that the regular course would be stands mute, it shall be in quired whether it to respite execution, and recommend the be wilful, or by the act of God; from

Idiots.

A person made non compos mentis by sickness, or, as it has been Non compos sometimes expressed, a person afflicted with dementia accidentalis mentis from

sickness. vel adventitia, is excused in criminal cases from such acts as are committed while under the influence of his disorder. (9) Several causes have been assigned for this disorder; such as the distemper of the humours of the body; the violence of a disease, as fever or palsy; or the concussion or hurt of the brain : and, as it is more or less violent, it is distinguishable in kind or degree, from a particular dementia, in respect of some particular matters, to a total alienation of the mind, or complete madness. (h)

A lunatic is one labouring also under a species of the dementia Lunatic. accidentalis vel adventitia, but distinguishable in this, that he is afflicted by his disorder only at certain periods and vicissitudes; having intervals of reason. Such a person during his frenzy is entitled to the same indulgence as to his acts, and stands in the same degree with one whose disorder is fixed and permanent. (i) The name of lunacy was taken from the influence which the moon was supposed to have in all disorders of the brain ; a notion which has been exploded by the sounder philosophy of modern times.

With respect to a person non compos mentis from drunkenness, Persons drunk. a species of madness which has been termed dementia affectata, it is a settled rule, that if the drunkenness be voluntary, it cannot excuse a man from the commission of any crime, (k) but on the contrary must be considered as an aggravation of whatever he does amiss. (1) Yet if a person, by the unskilfulness of his physician, or by the contrivance of his enemies, eat or drink such a thing as causes frenzy, this puts him in the same condition with any other frenzy, and equally excuses him ; also, if by one or more such practices an habitual or fixed frenzy be caused, though this madness was conwhence Crompton infers that if it be by the or by the visitation of God. 2. Whether he act of God, the party shall not suffer. be able to plead. 3. Whether he be sane or Crompt. Just. 29, a. But if one who is not: on which issue the question is, whether both deaf and dumb, may discover by signs he is of sufficient intellect to comprehend the that he hath the use of understanding, much course of the proceedings on the trial so as more may one who is only dumb, and con- to be able to make a proper defence. Rex sequently such a one may be guilty of fe- v. Pritchard, 7 C. & P. 303, Alderson, B. lony. It may be observed, that from the Rex v. Dyson, ibid. 305, n. (a), Parke, B.; humane exertions of many ingenious and S. C. 1 Lewin, 64. In Rex v. Pritchard, able persons, and from the extensive cha- the jury were sworn on each of the three nitable institutions for the instruction of the issues separately. See Rex v. Dyson, for deaf and dumb, many of those unfortunate the form of the oath administered to the people have at the present day a very per- interpreter. See Thompson's case, 2 Lewin, lect knowledge of right and wrong. In 137, where the prisoner being deaf and Suel's case, T Leach, 451, a prisoner who dumb, but able to read, the indictment was could not hear, and could not be prevailed banded to him with the usual questions upon to plead, was found mute by the visi- written upon paper, and he wrote his plea tation of God, and then tried, found guilty, on paper. The jurors' names were then and sentenced to be transported. And in handed to him, with the question," wheJones's case, I Leach, 102, where the pri- ther he objected to any of them ?” and he Wiper (who was indicted on 12 Anne, c. 7, wrote for answer, “ No.” The judge's før stealing in a dwelling house) on being note of the cvidence of each witness was fut to the bar appeared to be deaf and handed to him, and he was asked in writing, dumb, and the jury found a verdict, “ Mute if he had any questions to put. by the visitation of God;" after which a (9) i Hale, 30. Bac. Abr. Idiots, (A.) woman was examined upon her oath, to (h) 1 Hale, 30. the fact of her being able to make him un- (i) 4 Co. 125. Co. Lit. 247. 1 Hale, 31, derstand what others said, which she said (k) Co. Lit. 247. i Hale, 32. 1 Hawk. she could do by means of signs, such pri. P. C. c. 1, s. 6. Sober was arraigned, tried, and convicted of (1) 4 Bla. Com. 26. Plowd. 19. Co. the simple larceny. The proper course in Lit. 247. Nam omne crimen ebrietas incen. such cases is, 1. To swear a jury to deter- dit et detegit. And see also Beverley's mine whether the prisoner be mute of malice

case, 4 Co. 125. VOL. I.

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tracted by the vice and will of the party, yet the habitual and fixed frenzy caused thereby puts the man in the same condition as if it were contracted at first involuntarily. (m) And, though voluntary drunkenness cannot excuse from the commission of crime, yet where, as upon a charge of murder, the material question is, whether an act was premeditated or done only with sudden heat and impulse, the fact of the party being intoxicated has been holden to

be a circumstance proper to be taken into consideration. (n) Where drunk. So in a case of maliciously stabbing, a very learned Judge enness may observed, that with regard to the intention, drunkenness might perbe taken into consideration. haps be adverted to according to the nature of the instrument used.

If a man used a stick, a jury would not infer a malicious intent so strongly against him, if drunk, when he made an intemperate use of it, as they would if he had used a different kind of weapon ; but where a dangerous instrument was used, which, if used, must produce grievous bodily harm, drunkenness could have no effect on the consideration of the malicious intent of the party. (o) So drunkenness may be taken into consideration in cases where what the law deems sufficient provocation has been given, because the question is, in such cases, whether the fatal act is to be attributed to the passion of anger excited by the previous provocation, and that passion is more easily excitable in a person when in a state of intoxication than when he is sober. (p) So where the question is whether words have been uttered with a deliberate purpose, or are merely low and idle expressions, the drunkenness of the party uttering them is proper to be considered. (9) But if there is really a previous determination to resent a slight affront in a barbarous manner, the state of drunkenness in which the prisoner was, ought not to be regarded, for it would furnish no excuse. (9) So upon an indictment for stabbing, the jury may take into their consideration, among other circumstances, the fact of the prisoner being drunk at the time, in order to determine whether he acted under a bona fide

apprehension that his person or property was about to be attacked. (r) Idiocy and

But though this subject of non compos mentis may be spun out to lunacy are a greater length, and branched into several kinds and degrees, yet it the prevailing distinctions.

appears that the prevailing distinction herein in law is between idiocy and lunacy; the first, a fatuity a nativitate, or dementia naturalis, which excuses the party as to his acts; the other, accidental or adventitious madness, which, whether permanent and fixed, or with lucid intervals, goes under the name of lunacy, and

excuses equally with idiocy as to acts done during the frenzy. (s) Difficulty of The great difficulty in cases of this kind is to determine where the subject. a person shall be said to be so far deprived of his senses and memory (m) i Hale, 32.

drunkenness is no excuse in any crime (n) By Holroyd, J., in Rex v. Grindley, whatever, it is often of very great importWorcester Sum. Ass. 1819, MS. But in a ance in cases where it is a question of case of murder by stabbing with a bayonet, intention. A person may be so drunk as where Rex v. Grindley was relied upon, to be utterly unable to form any intention, Park, J. J. A., in the presence of Little. and yet he may be guilty of very great dale, J., said, “ highly as I respect that violence." late excellent Judge (Holroyd), I differ (p) Rex v. Thomas, C. & P. 817. from him, and my brother Littledale agrees Parke, B. Pearson's case, 2 Lewin, 144. with me. He once acted upon tbat case, Park, J. A. J. but afterwards retracted his opinion. and (9) Rex v. Thomas, ibid. there is no doubt that that case is not law." (r) Marshall's case, I Lewin, 76. Park, Rex v. Carroll, 7 C. & P. 145.

J. A. J. Goodier's case, ibid. Parke, J. (0) Rex v. Meakin, 7 C. & P. 297. (s) Bac. Abr. Idiots, &c. (A.) 4 Co. Alderson, B. In Reg. v. Cruse, 8 C. & P. 546, Patteson, J., said, “ although

125.

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as not to have any of his actions imputed to him; or where, not-
withstanding some defects of this kind, he still appears to have
so much reason and understanding as will make him accountable for
his actions. Lord Hale, speaking of partial insanity, says, that it is
the condition of very many, especially melancholy persons, who for
the most part discover their defect in excessive fears and griefs, and
yet are not wholly destitute of the use of reason ; and that this
partial insanity seems not to excuse them in the committing of any
capital offence. And he
And he says further," Doubtless most persons that


* are felons of themselves and others are under a degree of partial
“ insanity when they commit these offences : it is very difficult to
" define the invisible line that divides perfect and partial insanity ;
" but it must rest upon circumstances duly to be weighed and con-
“sidered 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 indulgence given to great crimes."
And he concludes by saying, “ the best measure I can think of
" is this: such a person as, labouring under melancholy distempers,
“ hath yet ordinarily as great understanding as ordinarily a child of
* fourteen years hath, is such a person as may be guilty of treason
* or felony." (0)

It will be proper to mention some of the cases which have been decided upon this difficult and most important subject.

In the case of Lord Ferrers, who was tried before the House Lord Ferrers's of Lords for murder, it was proved that his lordship was occasionally case— Murder. insane, and incapable from his insanity of knowing what he did, or judging of the consequences of his actions. But the murder was deliberate; and it appeared that when he committed the crime he had capacity sufficient to form a design and know its consequences. It was urged, on the part of the prosecution, that complete possession of reason was unnecessary to warrant the judgment of the law, and that it was sufficient if the party had such possession of reason as enabled him to comprehend the nature of his actions, and discriminate between moral good and evil. And he was found guilty and executed. (u)

In Arnold's case, who was tried at Kingston, before Mr. J. Tracey, Arnold's case. for maliciously shooting at Lord Onslow, it appeared clearly that -- Shooting at

Lord Onslow the prisoner was, to a certain extent, deranged, and that he had greatly misconceived the conduct of Lord Onslow; but it also

appeared that he had formed a regular design, and prepared the proper means for carrying it into effect. Mr. Justice Tracey left the case to the jury, observing that where a person has committed a great offence, the exemption of insanity must be very clearly made out before it is allowed; that it is not every kind of idle and frantic humour of a man, or something unaccountable in his actions, which will shew him to be such a madman as is to be exempted from punishment; but that where a man is totally deprived of his understanding and memory, and does not know what he is doing, any more than an infant, a brute, or a wild beast, he will properly be exempted from justice or the punishment of the law. (v) (t) I Hale, 30.

Tri. (by Howell,) 764, 765.

The jury 18, Lord Ferrers's case, 19 St. Tri. (by found the prisoner guilty; but at Lord Howell, ) 947.

Onslow's request he was reprieved; and (c) Arnold's case, MS. Collison on was confined in prison thirty years, till he Lunacy, 175. 8 St. Tri. 317, 16 St. died.

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