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TREATISE

OF

THE PLEAS OF THE CROWN.

BOOK I.

CHAP. I.

OF THE PERSONS WHO MAY BE GUILTY.(1)

Comm. 21. Puff, b. 8. c. 3.

THE guilt of offending against any law whatsoever, necessarily 1 Hale, 15. supposing a wilful disobedience, can never justly be imputed to those who are either incapable of understanding it, or of conforming themselves to it. Therefore, before I come to the several kinds of offences, I shall shew what degrees of discretion and freedom are required in the commission of them. For the better understanding whereof, I shall consider what offenders are excusable.-FIRST, in respect of their want of reason.SECONDLY, in respect of their subjection to the power of others. Sect. 1. As to THE FIRST POINT, it is to be observed, that B. Cor. 61. 170. those who are under a natural disability of distinguishing between Pult. 125, 126. good 3 Inst. 4.

Sum. 10. 28. 43.

Dalt. c. 147. 1 Hale, 16. 29. 515. Co. Lit. 247. 4 Co. 124. Hob. 224. 8 St. Tr. 322.

(1) Legal guilt is a violation of positive law; a crime or misdemeanor may, therefore, be defined the "wilful" commission or omission of any acts in violation of a public law either forbidding or commanding it. This definition comprehends both crimes and misdemeanors, which are synonimous terms, though in common usage the word "crimes" is made to denote offences of a deeper and more atrocious dye, while smaller faults and omissions of less consequence are comprised under the gentler name of " misdemeanors." (Bl. Com. lib. 4. c. 1.) But the act done or omitted, in order to be criminal must be wilful. The consent of the will is that which renders human actions either comVOL. I.

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mendable or culpable, and where there is no will to commit an offence there can be no transgression, saith Sir M. Hale (H. P. C. c. 2.) That learned judge then goes on to state those causes which the law of England notices as excusing the fact from incapacity or defect of will, which he classes as follows:-1. Natural. 2. Accidental. 3. Civil Incapacities or Defects.-The natural is that of infancy.-The accidental defects of will1. Dementia. 2. Casualty or Chance. 3. Ignorance. The civil defects or want of will-1. Civil Subjection. 2. Compulsion. 3. Necessity. 4. Fear.

good and evil, as (2) infants under the age of discretion, ideots, and lunatics (3), are not punishable by any criminal prosecution whatsoever.

(2) Infancy, as is above observed, is a defect of the will or understanding. Infants under the age of discretion aught not to be punished by any criminal prosecution. What the age of discretion is, is matter of variety in different nations. (Bl. Com. b. 4. c. 2.)

By the civil law, the age is distributed into seve'ral periods for several purposes. The complete full age as to matters of contract is twenty-five years. (Inst. lib. 1. tit. 23. Dig. lib. 4. tit. 4.) But according to the law of England, twenty-one years. (Co. L. 103. Lit. sect. 104.)

As to matters of crimes and criminal punishment, especially that of death, the civil law distinguishes the age of minors into three periodsINFANTIA, from the birth until seven years of age; PUERITIA, from seven to fourteen years of age; and PUBERTAS, from fourteen years and upwards. Indeed pubertas plena is eighteen years. (Dig. lib. 1. tit. 7. de Adoptionibus, c. 40. sect. 1. Inst. eod. tit. sect. 4.) The period of pueritia is again sub-divided into two equal parts. From seven years to ten and a half is ætas infantiæ proxima. From ten years and a half until fourteen is atas pubertati proxima. Fourteen years is the age of pubertas in relation to crimes and punishments. With respect to the first age, infantia or infancy, which lasts to the period of seven years within that age and the next period of ætas infantiæ proxima, that is, to ten years and a half, there could be no guilt of a capital offence, and therefore the infant could not be punished, infants of that age being considered doli incapaces. (Dig. lib. 47. tit. 12. de Sepulchro violato, lib. 3. sect. 1.) The next period of pueritia was from ten years and a half until fourteen, being the age pubertati proxi

ma.

Within this period the infant was prima facie considered doli capax, and so might be punished for a capital offence, but with a power in the judge to mitigate the rigor of the sentence on account of the youth of the offender. (Dig. lib. 4. tit. 4. de Minoribus, c. 37. Sec. 1. in Delictis.) Fourteen years was full age as to responsibility in relation to crimes and punishment. (Dig. lib. 29. tit. 5. de Senatus-Consulto Silaniano, sect. 32.)

Thus far as to the civil law. By the law of England an infant under seven years of age 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; and in matter of crime there is no difference as to the age of male or female, though for certain civil purposes there is a distinction adopted between the ages of the different sexes. (H. H. P. C. c. 3.) With respect to the whole of the next period, from seven to fourteen years of age, the law of England presumes in favour of the infant that he is doli incapax, but this presumption may be rebutted by evidence; and if it shall appear that the infant was doli capar, he may be convicted of a capital crime and executed. And our law books have preserved several instances where children of the ages of ten,

Sect.

eleven, and twelve, have been convicted and executed. (Fost. 72. Bl. Com. b. 4. c. 2. H. H. P. C. c. 3. p. 26.) At the completion of fourteen years of age, infants are fully responsible for any felonious act, being then presumed to have arrived at the age of discretion. (Co. L. 247.)

In certain cases of misdemeanor, however, the law privileges a minor under twenty-one years of age from punishment; but these in general are cases of non feasance, because in such case laches shall not be imputed to him, (Bro. Sauver default. 50. Cro. Ja. 465, 466. Co. L. 246. b.) as non repair of a bridge, &c. (Bl. Com. 4. c. 2.)

(3) Ideots, lunatics during their lunacy, and madmen, are all incapable of committing crime, as falling within that accidental defect of the will included by Lord Hale under the term dementia, or insanity. An ideot is one of defective understanding from his birth. He is thus described by Fitz Herbert. (N. B. 532.) "He who shall be said to be a sot and ideot from his birth is such a person who cannot account or number twenty pence, nor can tell who was his father or mother, nor how old he is, &c. so as it may appear he hath no understanding of reason what shall be for his profit, or what for his loss. But if he have such understand

ing that he know and understand his letters, and do read by teaching of another man, then it seems he is not a sot or natural ideot." But, as Lord Hale observes, these may be too narrow grounds though they be evidence, and the question is one of fact, triable by a jury and sometimes by inspection. (H. P. C. c. 4.)

A lunatic is one who has lucid intervals, and is only occasionally insane. Madness is fixed and permanent disease of mind, causing continual insanity. If a person commit a crime while under the deprivation of reason, he is not criminally responsible; and if it shall appear to the jury that the accused was labouring under insanity at the time the fact was committed, they ought to pronounce a verdict of not guilty; but inasmuch as it is dangerous to the public that insane persons, who have shewn a mischievous disposition, should be suffered to go at large, it is enacted by the 17 G. 2. c. 5. that dangerous lunatics, who are vagrants, are to be imprisoned and sent to their proper homes. But this act only applied to the cases of vagrants, and therefore, by a subsequent statute, (39 & 40 G. 3. c. 94.) it is enacted, sect. 1. “that in all cases where it shall be given in evidence upon the trial of any person charged with treason, murder, or felony, that such person was insane at the time of committing such offence, and such person shall be acquitted, the jury shall be required to find specially whether such person was insane at the time of the commission of such offence, and to declare whether such person was acquitted by them on account of such insanity; and if they shall find that such person was insane at the time of committing such offence, the court, before whom such trial shall be had, shall order such person to be kept in strict custody, in such place and in such

manner

Sect. 2. Indeed it was anciently holden, in respect of that high regard which the law has for the safety of the king's person, that a madman might be punished as a traitor (4) for killing or offering to kill the king; but this is contradicted by the later opi

nions.

1 Hale, 36, 37.

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Co. Lit. 247. 4 Co. 124.

4 Comm. 25.

26 Ass. 27. Sav. 57.

Sum. 10.

Sect. 3. And 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 1 And. 107. shall not be executed.

109.
3 Inst. 4. 6.

1 Hale, 34, 35. 4 St. Tr. 205. 8 St. Tr. 285. 4 Comm. 24, 25. S95. 1 And. 107.

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Sect. 4. And, by the common law, if it be doubtful whether criminal who at his trial is in appearance a lunatic, be such in 1 Hale, 35. truth or not, it shall be tried by an inquest of office, to be returned by the sheriff of the county wherein the court sits;(5) and if it be found by them that the party only feign himself mad, and he still refuse to answer, he shall be dealt with as one that stands mute. (6)

Sect. 5. And if one who wants discretion commit a trespass 2 R. Abr. 547. against the person or possession of another, he shall be com- B. Cor. 6. pelled in a civil action to give satisfaction for the damage.

Hob. 134.
Co. Lit. 247.

289. Plow. 364. 2 Inst. 284. 414. Pop. 141. Brownl. 197. Noy, 129. C. Jac. 467. 1 Hale, 15, 16. 20. 3 Bac. Ab. 131. 2 Comm. 291. 4 Comm. 22.

Sect. 6. And 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.

Dalt. c. 148. 4 Comm. 26.

Co. Litt. 247.
Hale, 32.

1

Plow. 19.
4 Co. 125.
8 St. Tr. 285.

manner as to the court shall seem fit, until his Majesty's pleasure shall be known. And it shall be thereupon lawful for his Majesty to give such order for the safe custody of such person during his pleasure, in such place and in such manner as to his Majesty shall seem fit." And by sect. 2. of the same act, where an insane person is indicted, and cannot be tried on account of his insanity, and his insanity is found by a jury impannelled for that purpose, he is to be dealt with in like manner.

The next accidental defect of the will, as stated by Lord Hale, though not noticed here by Mr. Serj. Hawkins, is casualty or chance; that is, where a party has committed an act which he did not intend to have done. If any accidental mischief happens in the prosecution of a lawful act, the party not intending the thing that happened, stands excused. But if a man be doing that which is unlawful, and a consequence follows which he did not intend or foresee, his want of foresight shall be no excuse. (B. Com. v. 4. c. 2.) But in order to make a party guilty of felony, under these circumstances, it should seem that his original intention should be a felonious intention. Where a party intending to commit one felonious act unintentionally commits another felonious act, he is clearly guilty of felony; but where the original intention was only to commit a trespass, as where a man un

Sect.

lawfully using a hand gun unintentionally sets fire to a barn full of corn, (which is felony if wilfully done,) he shall not be guilty of felony, though his act in using the gun was unlawful. This at least is the opinion of Sir M. Hale (H. P. C. vol. i. p. 569.) contrary to some older authorities. (Dalton.)

The opinion of Hale seems most consonant to reason and justice, and accords with the maxim of Lord Bacon-" In criminalibus sufficit generalis ma "litia intentionis cum facto paris gradus." (Re gula 15.)

(4) See 33 H. 8. c. 20. repealed by 1 & 2 P. & M. c. 20. 2 State Trials, 7.

(5) It may be tried either by the inspection of the court, 1 Hale, 33. Tr. p. Pais, 14. Fitz. N. B. 517, by evidence given to the jury, who are charged to try the indictment, 3 Bac. Abr. 81. 1 Hale, 33. 35, 36. Savil, 50. 1 And. 107.-or, being a collateral issue, the fact may be pleaded and replied to ore tenus, and a venire awarded, returnable instanter, in the nature of an inquest of office. Fost. 46. Kel. 13. 1 Lev. 61. 1 Sid. 72. 4 Comin. Appen. s. 3. And this method, in cases of importance, doubt, or difficulty, the court will, in prudence and discretion, adopt. 1 Hale, 35. Sav. 56. 1 And. 154.

(6) For the consequences of standing mute, sce Bk. II. c. 13. s. 9.

Kely. 53.

Dalt. p. 533. 1 Hale, 617.

F. Cor. 118. 129.

12 Ass. 30.

B. Cor. 6. 61.
133. 136.
S. P. C. 16.

35 H. 6. 11.
1 Hale, 434.
569, 570.
Plow. 19.

Sect. 7. Also he who incites a madman to do a murder or other crime, is a principal offender, and as much punishable as if he had done it himself.

Sect. 8. And if it appear by the circumstances, that an infant under the age of discretion could distinguish between good and evil, as if one of the age of nine or ten years kill another, and hide the body, or make excuses, or hide himself, he may be convicted and condemned, and forfeit, &c. as much as if he were of full age. But in such a case the judges will in prudence respite the execu tion, 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, (a) 1 Hale, 27. &c.-+ But this authority to dismiss him must be understood (a) of a reprieve before judgment, or that the jury find the prisoner within the age of seven years, or not of sufficient discretion to judge between good and evil.

Pult. 125.

Foster, 70.

Leges Inæ, 58.
S. P. C. 16. 42.

27 Ass. 40.
Sum. 65.
Kely. 31.

Sect. 9. As to THE SECOND POINT, viz. how far those are to be excused who are under the power of others :-A feme covert is so much favoured in respect of that power and authority which her husband has over her, that she shall not suffer any punishment 1 Hale, 45.516. for committing a bare theft (7) in company with, or by coercion. Dalt. 134. 157. of, her husband.

B. Cor. 16. 108.

4 Comm. 28.

3 Inst. 108.
Sum. 65.
1 Hale, 44.

Sum. 65, 66.
Dalt. 104.

F. Cor. 199.
383.

2 Bk. 3. 29. 134.

Sect. 10. Neither shall she be deemed accessary to a felony for receiving her husband who has been guilty of it, as her husband shall be for receiving her.

Sect. 11. But if she commit a theft of her own voluntary act, or by the bare command of her husband, or be guilty of treason, murder, or robbery, in company with, or by coercion of, her husband, she is punishable as much as if she were sole.

1 Hale, 45. 516. Lucas, 63. Kely. 31. S. P. C. 13. 142. 2 Comm. c. 20. 4 Comm. 29.

(7) The principle upon which the wife is excused from punishment for offences committed in her husband's company is, that she owes him the highest obedience. And this the law of England carries so far as to excuse her from the punishment of certain felonies committed in his presence, which the law presumes to be equivalent to coercion and command on his part. But she is answerable in all cases when she offends alone, and Mr. Serj. Hawkins states above, that she is responsible in cases of treason, murder, and robbery, though committed in company with her husband. With respect to treason and murder, there is no doubt. But it may be doubted whether he is cor. rect when he says she is not privileged in robbery. It is not a more heinous offence than burglary, and in the latter case she is privileged (Kelyuge, 31.) Treason and murder form exceptions, the first being founded in policy, and murder propter odium delicti. This presumed coercion, however, arising from the presence of the husband, is but a legal presumption, and like other legal presumptions

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Sect.

may be repelled by evidence, to shew that she was the instigator of the offence, in which case she, as well as the husband, may be convicted, (1 H. H. P. C. 516.) And herewith agrees the ancient law as stated by Bracton, (lib. 3. c. 32.) who says, "Quid erit si uxor cum viro conjuncta fuerit, vel confessa fuerit quod viro suo consilium præstiterit "et auxilium? Nunquid tenebantur ambo? imò “ut videtur”—and he goes on to add, “ sicut sunt participes in crimine, ita debent esse participes in pana." From the same author it also appears, that if the stolen goods were found in her own peculiar possession, it was a presumption of her guilt. "In certis casibus," says he (in the same chapter)" de furto tenebitur uxor si furtum inve"niatur sub clavibus, quas quidem claves, habere "debet uxor sub custodia et cura sua; claves, viz. "dispense suæ, arcæ suæ et scrinii sui, et si ali*quando furtum sub clavibus istis inveniatur, uxor "cum viro culpabilis erit, sc. vir si consenserit vel rem et warrantizabit."

+66

Hob. 95.

Sect. 12. Also a wife may be indicted together with her hus- 2 Roll. 99. band, and condemned to the pillory with him for keeping a 3 Keb. 34. bawdy-house; for this is an offence as to the government of the 1 Sid. 410. house, in which the wife has a principal share; and also such an 3 Salk. 384. offence as may generally be presumed to be managed by the intrigues of her sex.

1 Sid. 210.

Moor, 813.

Sect. 13. And generally a feme covert shall answer, as much as 9 Co. 72. if she were sole, for any offence not capital, against the common C. Jac. 482. law, or statute: and, if it be of such a nature that it may be committed by her alone, without the concurrence of the husband, she 2 Keb. 634. may be punished for it without the husband, by way of indict- Hob. 93. ment; which being a proceeding grounded merely on the breach 3 Keb. 34. of the law, the husband shall not be included in it for an offence to which he is no way privy. And if a woman bring a malicious 8 Hen. 4. 17. appeal for the death of her husband, known by her to be alive, F. Cor. 73. she may be imprisoned for the false appeal, till she make fine to Bac. Ab. 294. B. Imp. 103. the king, and the husband shall go at large. But if a wife incur Noy, 103. the forfeiture of a penal statute, the husband may be made a Sav. 25. party to an action or information for the same (as he may be 1 Roll, 93. generally to any suit for a cause of action given by his wife), and shall be liable to answer what shall be recovered thereon.

Sect. 14. Neither a son nor a servant are excused the commis- Sum. 66. sion of any crime, whether capital or not capital, by the command Moor, 813. or coercion of the father or master. (8)

(8) There are also other defects of will which save the parties from guilt and punishment; as "Ignorance." But this must be an ignorance of fact, as where one, upon being alarmed in the night by the cry of robbers breaking into his dwelling-house, in mistake killed a person who had been secreted in his house by his servant, supposing him to have been one of the thieves; and not an ignorance of law; for ignorance of the law excuses no one. Every one of the age of discretion and

Dalt. 504. 1 Hale, 44.

compos mentis is bound to know the law and presumed so to do," Ignorantia eorum quæ quis scire " tenetur not excusat,” (Plowden, 343. a. H. H. P. C. c. 6.) Compulsion and fear are also matters of excuse. As where an enemy compels a man to serve against his lawful sovereign, (H. H. P. C. c. 8. & 9.) But these circumstances of excuse must be proved by the prisoner, unless they arise out of the evidence against him, (Foster, 255. Lord Raymond, 1493.)

CHAP. II.

OF HIGH TREASON. (1)

OF OFFENCES against MAN, some are more immediately against Prin. P. L. 116. THE KING, others more immediately against the subject.

(1) It is, perhaps, one of the most important rights of a free state, that the law of high treason should be well defined, and that what acts shall and shall not be considered treason should be clearly ascertained. If the crime of high treason be indefinite, says Baron Montesquieu, this alone is sufficient to make the government degenerate into arbitrary power-Sp. L. b. 12. c. 7. With us the statute of 25 Ed. 3. c. 2. has always been considered as a firm bulwark and protection of the subject against the oppression of sovereign power under the pre

Offences

text of law. Sir Edward Coke calls it a blessed statute. And although, since the period of its first enactment, the Statute Book of England, in the times of tyranny and of faction, has been disgraced with many absurd and wanton enactments on the subject of high treason, yet in the healthier times of our constitution, we have always recurred to this statute as to a standard which ought not to have been departed from. The statute itself created no new treason, but the matters therein declared to be high treason were all clearly so considered at com

mon

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