532 



CRIMINAL LAW. 



general rule of the common law is, that all persons 

 are punisliable for disobedience to, tuiii iiifmctioiis of 

 the law. The exceptions are few, and are clearly 

 defined. They are such as presuppose a defect of 

 reason and understanding, or of intention. A defect 

 of understanding exists in the case of injuries com- 

 mittrd by persons in a state of infancy, lunacy, idiocy, 

 or intoxication. A defect of intention exists in the 

 case of oftVnccs committed l>y chance, mistake, and 

 ignorance, wholly without or ugaihst the intention of 

 the party. In respect to want of capacity, idiots, 

 madmen, and other persons not at the time in pos- 

 session of reason, such as somnambulists, are gems 

 rally excused, whatever injuries they may commit. 

 But the common law does not extend this indulgence 

 to crimes committed by persons who are in a state of 

 voluntary intoxication. It considers this circumstance 

 rather in the light of an aggravation of the offence. 

 Mut a distinction is here to be made. If the party be, 

 at the time of the offence, drunk by the use of strong 

 liquors, he is piuiisliahle, though he may be thereby 

 reduced, at the time, to a state of insanity. But if 

 drunkenness lie only the remote cause of the insanity, 

 and the party be not, at the time, under the influence 

 of intoxicating liquors, the law treats his case like 

 that of any other insane person. It does not look 

 back to the original and remote cause of the insanity, 

 to ascertain whether it has been produced by crimi- 

 nal indulgence, or neglect of duty, but to the immedi- 

 ate and operating cause, at the time when the crime 

 is committed. The exception, therefore, of the case 

 of insanity by immediate intoxication, is carved out 

 of the general exception in favour of insanity, and 

 arises from, or at least is countenanced by, motives 

 of public policy, to prevent the dangerous effects 

 arising from indulgence in strong liquors. The com- 

 mon law is, in this particular, more severe than the 

 civil law. The latter never punished capitally for an 

 offence committed under such circumstances. (4. 

 Bt. Comm. 26.) 



As to crimes committed by infants. There are 

 various ages of infancy, in the common law, for dif- 

 ferent purposes. The general age of majority for all 

 purposes is, in our law, twenty-one years ; in the 

 civil law, twenty- five years. Children under seven 

 years of age are deemed without discretion, and are 

 universally exempted, by our law, from punishment. 

 Between seven and fourteen years, they are said to 

 be in a dubious stage, in point of discretion. If they, 

 in fact, possess it, if they appear to liave judgment 

 and understanding, and a sense of crime, they are 

 liable to* punishment ; otherwise not. Generally, the 

 rule of presumption is in favour of mercy, that an in- 

 fant under rburteen is doli incapax ; but this presump- 

 tion may be removed by facts establishing a clear 

 sense of the difference between good and evil, to- 

 gether with malice and superior cunning. (4 Bl. 

 Comm. 22, 23.) However, it deserves consideration, 

 whether this is a sufficient test of rational discern- 

 ment of the nature of crime and duty ; and judges 

 may well lean against convictions in such cases, upon 

 principles not merely of humanity, but of philosophical 

 responsibility. After fourteen, the general presump- 

 tion is in favour of an infant being doli capax, and, 

 therefore, he generally stands upon grounds similar to 

 those of adults, until his actual incapacity is proved. 



As to crimes committed by lunatics and idiots, the 

 exception on account of want of capacity obviously 

 applies only to cases where it exists at the time o; 

 the commission of the offence. Hence it is no ex- 

 cuse, if a person who has been insane commits an of- 

 fence in a lucid interval, or at a time when hw reason 

 is clearly restored. So, on the other hand, a person 

 may not be an absolute idiot, so as to have no dis- 

 cernment whatsoever, and yet may be excusable 



Vom punishment it' his capacity l>e so weak that he 

 loes not, though nn adult, understand clearly the 

 distinctions lu-tween right and wrong. Extreme 

 old age sometimes reduces persons to a state almost 

 of fatuity, and exposes them to be imposed upon, and 

 even seduced to the commission of offences, under 

 circumstances where they would be held no more; 

 liable to punishment tliau infants. Everything de- 

 pends upon soundness of mind and real discretion 

 *t the time of committing the offence. When a per- 

 son becomes insane after the commission of an of- 

 fence, and before trial, he is not, by the common law, 

 ever allowed to be brought to trial, until he is re- 

 stored to his reason. At whatever stage of a public 

 prosecution the insanity occurs, it operates as a sus 

 pension of all further proceedings. Thus, if it oc- 

 curs before arraignment, the party ought not to ti- 

 arraigned for the offence ; if after arraignment he 

 ought not to be required to plead ; if after plea, he 

 ought not to be put to trial ; if after trial, he ought 

 not to have judgment or sentence pronounced 

 against him; if after judgment, execution of i 

 sentence ought to be stayed. The ground upon 

 which this rule of law is commonly supposed to 

 stand is, that it ought never to l>e presumed that the 

 party, if sane, might not suggest some defence that, 

 in reason or justice, would entitle him to mercy, or 

 to exemption from punishment. A reason quite as 

 satisfactory is, that the punishment of an insane per- 

 son can produce no good result, either to reform the. 

 offender or as a public example. It would shock all 

 the feelings of humanity to inflict punishment on 

 those whom the visitation of Providence had already 

 made objects of wretchedness and of compassion. I n 

 all cases where it is doubtful whether the party be 

 insane or not, the fact is, by the common law, to be 

 tried by a jury. 



In respect to injuries committed without the in 

 tention of the party, as through misfortune or chance. 

 Where an accidental mischief happens in the perfor- 

 mance of a lawful act, in the doing of which the 

 party uses reasonable care and diligence, he is whol- 

 ly free from guilt, and it is deemed his misfortune ; 

 but if he does not use reasonable care and diligence, 

 he is liable to punishment according to the nature 

 and extent of his negligence. If guilty of gross negli- 

 gence, he is sometimes punishable in the same man- 

 ner as if the act were intentionally committed ; if 

 guilty of slight negligence only, he escapes with a 

 more moderate punishment. If the mischief hap- 

 pen in the performance of an unlawful act, and a 

 consequence ensues which was not intended or fore- 

 seen, the party is not free from guilt. But the de- 

 gree of punishment ought to depend upon the na 

 ture of the unlawful act itself. A distinction is tak- 

 en, in the common law, between cases where the 

 original act is wrong and unlawful in itself (malum 

 per se), and where it is merely prohibited by statute 

 (malum prohtiritum). In the former case, the party 

 is responsible for all incidental consequences of the 

 unlawful act ; in the latter, not. An illustration of 

 these principles may be found in cases commonly put 

 in our treatises on criminal law: If a man be at 

 work with a hatchet, and the head flies off, and kills 

 a stander by, this is not any offence, for the party 

 was doing a lawful act without any intention of hurt. 

 So a parent may moderately correct a child, and if, 

 in so doing, death happens, against his intention, it 

 is mere misadventure. But if he corrects the child 

 immoderately, or uses an instrument which is danger- 

 ous to life, or is wanting in reasonable caution, he is 

 guilty either of manslaughter or murder, according 

 to the circumstances and the degree of the punish- 

 ment. If a man, riding a horse with reasonable 

 care, accidentally runs over a child and kills him, he 



