Chap. 2.] Persons Capable of Committing Crimes. 30

CHAPTER II.

OF THE PERSONS CAPABLE OF COMMITTINGCRIMES.

Having, in the preceding chapter, considered in general the nature of crimesand punishments, we are led, next, in the order of our distribution, to inquirewhat persons are, or are not, capable of committing crimes; or, which is allone, who are exempted from the censures of the law upon the commission ofthose acts, which in other persons would be severely punished. In the processof which inquiry, we must have recourse to particular and special exceptions:for the general rule is

,

that no person shall be excused from punishment fordisobedience to the laws of his country, excepting such as are expressly defined and exempted by the laws themselves.All the several pleas and excuses, which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto, may bereduced to this single consideration, the want or defect of will. An involuntary act, as it has no claim to merit, so neither can it induce any guilt: the concurrence of the will, when it has its choice either to do or to avoid the fact inquestion, being the only thing *that renders human action either praise- r*oiiworthy or culpable. Indeed, to make a complete crime cognizable by L J

human laws, there must be both a will and an act. For, though, in foro con-sciential, a fixed design or will to do an unlawful act, is almost as heinous asthe commission of it

,

yet, as no temporal tribunal can search the heart, orfathom the intentions of the mind, otherwise than as they are demonstrated byoutward actions, it therefore cannot punish for what it cannot know. Forwhich reason, in all temporal jurisdictions, an overt act, or some open evidenceof an intended crime, is necessary in order to demonstrate the depravity of thewill, before the man is liable to punishment. And, as a vicious will without avicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no crime at all. So that to constitute a crime againsthuman laws, there must be, first, a vicious will; and, secondly, an unlawful actconsequent upon such vicious will.Now there are three cases, in which the will does not join with the act: 1.

Where there is a defect of understanding. For where there is no discernment,there is no choice; and where there is no choice, there can be no act of thewill, which is nothing else but a determination of one's ohoice to do or to abstain from a particular action: he, therefore, that has no understanding canhave no will to guide his conduct. 2. Where there is understanding and willsufficient, residing in the party; but not called forth and exerted at the timeof the action done; which is the case of all offences committed by chance orignorance. Here the will sits neuter; and neither concurs with the act, nordisagrees to it. 3. Where the action is constrained by some outward forceand violence. Here the will counteracts the deed; and is so far from concurring with, that it loaths and disagrees to, what the man is obliged to perform.It will be the business of the present ohapter briefly to consider all the severalspecies of defect in will, as they fall under some one or other of these generalheads: as infancy, idiocy, lunacy, and intoxication, which fall under the firstclass; misfortune and ignorance, which *may be referred to the second; rand compulsion or necessity, which may properly rank in the third. *

L First, we will consider the case of infancy or nonage; which is a defectof the understanding. Infants, under the age of discretion, ought not to bepunished by any criminal prosecution whatever, (a) What the age of discre

te!) 1 Hawk. P. 0. a.

287

22 Persons Capable of Committing Crimes. [Book IV.

tion is,

in various nations, is matter of some variety. The civil law distinguished the age of minors, or those under twenty-five years old, into threestages: infantia, from the birth till seven years of age: pueritia, from sevento fourteen; and pubertas, from fourteen upwards. The period of pueritia,or childhood, was again subdivided into two equal parts: from seven to tenand an half was OBtaa infantia} proximo,; from ten and an half to fourteen,was cetas pubertati proximo,. During the first stage of infancy, and thenext half stage of childhood, infantia} proximo, they were not punishable forany crime, (b) During the other half stage of childhood, approaching topuberty, from ten and an half to fourteen, they were indeed punishable, if

found to be doli capaces, or capable of mischief ; but with many mitigations,and not with the utmost rigour of the law. (c) During the last stage (at theage of puberty, and afterwards), minors were liable to be punished, as wellcapitally as otherwise.The law of England does in some cases privilege an infant, under the age oftwenty-one, as to common misdemeanors, so as to escape fine, imprisonment,and the like; and particularly in cases of omission, as not repairing a bridge,or a highway, and other similar offences; (d) for, not having the command ofhis fortune until twenty-one, he wants the capacity to do those things whichthe law requires. But where there is any notorious breach of the peace, a riot,battery, or the like (whioh infants, when full grown, are at least as liable asr*2i1 others to commit), for these an infant, above *the age of fourteen, i

s

I -I equally liable to suffer, as a person of the full age of twenty-one.With regard to capital crimes, the law is still more minute and circumspect;distinguishing with greater nicety the several degrees of age and discretion.By the ancient Saxon law, the age of twelve years was established for the ageof possible discretion, when first the understanding might open; (e) and fromthence till the offender was fourteen, it was cetas pubertati proximo, in whichhe might or might not be guilty of a crime, according to his natural capacityor incapacity. This was the dubious stage of discretion: but under twelve it

was held that he could not be guilty in will, neither after fourteen could he besupposed innocent, of any capital crime which he in fact committed. But bythe law, as it now stands, and has stood at least ever since the time of Edwardthe Third, the capacity of doing ill, or contracting guilt, is not so muchmeasured by years and days, as by the strength of the delinquent's understanding and judgment. For one lad of eleven years old may have as much cunning as another of fourteen; and in these cases our maxim is

,

that "malitiampplet oetatem." Under seven years of age indeed an infant cannot be guiltyof felony; (/) for then a felonious discretion is almost an impossibility innature: but at eight years old he may be guilty of felony, (g) Also, underfourteen, though an infant shall be prima facie adjudged to be doli incapax;yet, if it appear to the court and jury that he was doli capax, and could discern between good and evil, he may be convicted and suffer death. (1) Thusa girl of thirteen has been burnt for killing her mistress: and one boy of ten,and another of nine years old, who had killed their companions, have beensentenced to death, and he of ten years actually hanged; because it appeared

(1) See upon this subject, 8tate v. Goin, 9 Humph., 175; People v. Randolph, 2 Park. C.R., 174; Commonwealth v. Green, 2 Pick., 380. A male child under the age of fourteenis supposed incapable of committing a rape; but in Ohio it has been decided that this is but

a presumption which may be overcome by evidence of maturity. Williams v. State, 14Ohio, 222. So he may be convicted of an assault with intent to commit a rape. People v.Randolph, 2 Park. 0. R., 174. An infant is liable civilly for his torts. Humphrey t.Douglass, 10 Vt, 71; Bullock v. Babcock, 8 Wend., 391; Neal v. Gillett, 23 Conn., 48?,And this even though under fourteen yean of age. Huehting v. Engel, 17 Wis. , 380.

upon

288

Chap. 2.J Criminal Capacity : Idiocy and Insanity. 28

killed, which hiding manifested a consciousness of guilt, and a discretion*to discern between good and evil. (A) And there was an instance in rmn* ithe last century where a boy of eight years old was tried at Abingdon *• *

for firing two barns; and it appearing that he had malice, revenge, and cunning, he was found guilty, condemned, and hanged accordingly, (i

) Thusalso in very modern times, a boy of ten years old was convicted on his ownconfession of murdering his bedfellow, there appearing in his whole behaviourplain tokens of a mischievous discretion ; and, as the sparing this boy merelyon account of his tender years might be of dangerous consequence to thepublic, by propagating a notion that children might commit such atrociouscrimes with impunity, it was unanimously agreed by all the judges, that hewas a proper subject of capital punishment. (J) But in all such cases, th«evidence of that malice which is to supply age, ought to be strong and cleaibeyond all doubt and contradiction.H. The second case of a deficiency in will, which excuses from the guilt ofcrimes, arises also from a defective or vitiated understanding, viz. in an idiotor a lunatic. For the rule of law as to the latter, which may easily be adaptedalso to the former, is

,

that, "furiosus furore solum punitur." In criminal casertherefore, idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities: no, not even for treason itself, (k) (2)Also if a man in his sound memory commits a capital offence, and before arraignment for it

,

he becomes mad, he ought not to be arraigned for it; becaus*he is not able to plead to it with that advice and caution that he ought. Andif, after he has pleaded, the prisoner becomes mad, he shall not be tried: forhow can he make his defence ? If, after he be tried and found guilty, he losefhis senses before judgment, judgment shall not be pronounced; and if

,

afteijudgment, he becomes of non-sane memory, execution shall be stayed: for per-adventure, says the humanity of the English law, had the prisoner been olsound memory, he might have alleged *something in stay of judgmentor exeoution. (/

) Indeed, in the bloody reign of Henry the Eighth, a *■ *

statute was made, (m) which enacted that if a person, being compos mentis,should commit high treason, and after fall into madness, he might be tried inhis absence, and should suffer death, as if he were of perfect memory. Butthis savage and inhuman law was repealed by the statute 1 and 2 P. and M., c.10. For, as is observed by Sir Edward Coke, (n) "the execution of an offender

is for example, ut poena ad paucos, metus ad omnes perveniat: but so it is not(ft) 1 Hal. P. C. 26,27. (Q Emlyn on 1 Hal. P. C. 25.(i) Foster, 72. (*) 8 Inst. 6

.

(0 1 Hal. P. C. 84. (m) 83H. Vm, c. 20. (n) 8 Inst. «.

(2) As to the degree of mental unsoundness which shall excuse a person from punishmentfor his acts, the works on medical jurisprudence and insanity will need to be consulted,and the case of Freeman v. People, 4 Denio, 9

, and the trial of Huntington, will be foundinstructive, though they will probably leave upon the mind a painful sense of the difficulties surrounding this whole subject, and the impossibility of laying down definitions andabstract rules which can be easily and safely applied in practice. See also McNaughton'sCase, 10 CL &Fin., 200.As to the burden of proof when the defense of insanity is made to a criminal prosecution, see Clark v. State, 12 Ohio, 483, 494; Loeffner v. State, 10 Ohio St., 598; Bond v.State, 23 Ohio St, 349; State v. Felter, 82 Iowa, 49; McKenzie v. State, 42 Ga., 334; Bos-well v. Commonwealth, 20 Gratt., 860; Baccigalupo v. Commonwealth, 83 Gratt., 807;

S. C. 36 Am. Rep., 795; State v. Hoyt, 47 Conn., 581; Wright v. People, 4 Neb., 407;

State v. Pratt, 1 Houst. C, O., 249; Boswell v. State, 63 Ala., 307 ; 8. C, 85 Am. Rep., 20;State v. Redemeier, 71 Mo., 178; S. C, 86 Am. Rep., 462; Webb v. State, 9 Tex. App., 490;Johnson v. State, 10 Tex. App. , 571 ; State v. Coleman, 27 La. Ann. , 691 ; State v. Strauder,11 W. Va., 745, 823; Ortwein v. Commonwealth, 76 Penn. St., 414; 8. C, 18 Am. Rep.,420: State v. Smith, 53 Mo., 267; People v. McDonell, 47 Cal., 134; Commonwealth v.Eddy, 7 Gray. 583; Polk v. State, 19 Ind., 170; Chase v. People. 40 111., 852; Stevens v.State, 81 Ind., 485; People v. Schryver, 42 N. Y., 1; State v. Pike, 49 N. H., 899; Statet. Jones, 50 N. H., 369; People v. Garbutt, 17 Mich., 9; People v. Finley, 88 Mich., 482;Hopps v. People, 31 Dl., 385; State v. Klinger, 43 Mo., 127; State v. Crawford, 11 Kan.,82; Cunningham v. State, 56 Miss., 269; S. C, 81 Am. Rep., 360.

Vol. II.— 37 289

25 Persons Capable of Committing Crimes. [Book IV.

•when a madman is executed; but should be a miserable spectacle, both againstlaw, and of extreme inhumanity and cruelty, and can be no example to others."But if there be any doubt, whether the party be compos or not, this shall betried by jury. And if he be so found, a total idiocy, or absolute insanity,excuses from the guilt, and of course from the punishment, of any criminalaotion committed under such deprivation of the senses: but, if a lunatic hathlucid intervals of understanding, he shall answer for what he does inthose intervals as if he had no deficiency, (o) Yet, in the case of absolutemadmen, as they are not answerable for their actions, they should not be permitted the liberty of acting unless under proper control; and in particular,they ought not to be suffered to go loose, to the terror of the king's subjects.It was the doctrine of our anoient law, that persons deprived of their reasonmight be confined till they recover their senses, (p) without waiting for theforms of a commission or other special authority from the crown: and now,by the vagrant acts, (q) a method is chalked out for imprisoning, ohaining,and sending them to their proper homes.III. Thirdly: as to artificial, voluntarily contracted madness, by drunkenness or intoxication, which, depriving men of their reason, puts them in a temporary frenzy; our law looks upon this as an aggravation of the offence, rather

r*9Rl "than as an excuse for any criminal misbehaviour. A drunkard, saysL -* Sir Edward Coke, (r) who is voluntaries daemon, hath no privilegethereby ; but what hurt or ill soever he doth, his drunkenness doth aggravate it:nam omne crimen ebrietas, et incendit et detegit. It hath been observed, thatthe real use of strong liquors, and the abuse of them by drinking to excess,depend much upon the temperature of the climate in which we live. Thesame indulgence, which may be necessary to make the blood move in Norway,would make an Italian mad. A German, therefore, says the president Montesquieu, (s

) drinks through custom, founded upon constitutional necessity; a

Spaniard drinks through choice, or out of the mere wantonness of luxury: anddrunkenness, he adds, ought to be more severely punished, where it makesmen mischievous and mad, as in Spain and Italy, than where it only rendersthem stupid and heavy, as in Germany and more northern countries. Andaccordingly, in the warm climate of Greece, a law of Pittacus enacted, "thathe who committed a crime when drunk, should receive a double punishment;"one for the crime itself, and the other for the ebriety which prompted him tocommit it.(<) The Roman law, indeed, made great allowances for this vice: "pervinum delapsis capitalis poena remittitur." (w

)

But the law of England, considering how easy it is to counterfeit this excuse, and how weak an excuse it

is (though real), will not suffer any man thus to privilege one crime by another.(») (3)(o) 1 Hal. P. 0. 81.

( n) Bro. Abr. t., Coront, 101. (j)170eo. II, c. 8. (r) 1 Inst. 847. (»)Sp. L. b. 14,0. 10.(() Puff. L. of N. b. 8

, c 8. («) fj. 48.16. 8. («?) Plowd. 19.

(3) A man who, by means of intoxication, voluntarily puts himself in condition to haveno control of his actions, must be held to intend the consequences. The safety of the community requires this rule. Intoxication is so easily counterfeited, and when real it is sooften resorted to as a means of nerving the person up to the commission of some desperateact, that the law cannot recognize it as an excuse for the commission of crime. U. 8. v.Drew, 5 Mason, 28; Pirtle v. State. 9 Humph., 663- Commonwealth v. Hawkins, 3 Gray.463; People v. Garbutt. 17 Mich., 9- Choice v. State, 81 Geo., 424; State v. Avery, 44 N.H., 392. Nevertheless, the drunkenness of the partv is often an important considerationin criminal cases, where the guilty knowledge or intent constitutes the principal ingredientof the crime, so as to make the peculiar state and condition of the criminal's mind at thetime, with reference to the act done, the important subject of inquiry. See Swan v. State,

4 Humph., 136; U. 8.

v. Roudenbush, 1 Bald., 517; Roberts v. People, 19 Mich., 401;Kelley v. State, 3 S

. and M., 518. As in the case of passing counterfeit money: Pigmanv. State. 14 Ohio, 555; or the appropriation of another's property which might be larcenyor a trespass merely, according as the specific intent to steal was present or absent. Rexv. Pitman, 2 C. and P., 428. See further, O'Herrin v. State, 14 Ind., 420; State v. Cross,

290

Chap. 2.] Criminal Capacity : Detect of Will. 26

IV. A fourth deficiency of will is where' a man commits an unlawful act bymisfortune or chance, and not by design. Here the will observes a total neutrality, and does not co-operate with the deed; which therefore wants onemain ingredient of a crime. Of this, when it affects the life of another, weshall find more occasion to speak hereafter; at present only observing, that ifany accidental mischief *happens to follow from the performance of a r*27ilawful act, the party stands exoused from all guilt; but if a man be *

doing any thing unlawful, and a consequence ensues which he did not foreseeor intend, as the death of a man or the like, his want of foresight shall be noexcuse; for, being guilty of one offence, in doing antecedently what is in itself unlawful, he is oriminally guilty of whatever consequence may follow thefirst misbehaviour, (a;)V. Fifthly: ignorance or mistake is another defect of will; when a man, intending to do a lawful act, does that which is unlawful. For here, the deed•and the will acting separately, there is not that conjunction between themwhioh is necessary to form a criminal act. But this must be an ignorance ormistake of fact and not an error in point of law. As if a man, intending tokill a thief or house breaker in his own house, by mistake kills one of his ownfamily, this is no criminal action: (y) but if a man thinks he has a right tokill a person excommunicated or outlawed, wherever he meets him, and doesbo; this is wilful murder. For a mistake in point of law, whioh every personof discretion not only may, but is bound and presumed to know, is in criminalcases no sort of defence. Ignorantia juris, quod quisque tenetur scire, nemi-nem excusat, is as well the maxim of our own law, (z

)as it was of the Roman.

(«) (*)VL A sixth species of defect of will is that arising from compulsion and inevitable necessity. These are constraint upon the will, whereby a man is urgedto do that which his judgment disapproves; and which, it is to be presumed,his will (if left to itself) would reject. As punishments are therefore only in-flicted for the abuse of that free will which God has given to man, it is highlyjust and equitable that a man should be excused for those acts which are donethrough unavoidable force and compulsion.*1. Of this nature, in the first place, is the obligation of civil subjec- r*28-ition, whereby the inferior is constrained by the superior to act contrary *• Jto what his own reason and inclination would suggest: as when a legislatorestablishes iniquity by a law, and commands the subject to do an act contrary

(x) 1 HoL P. C. 89. (y) Cro. Car. 638. («) PlowdL 843. (a) Ff. 22. 8.9.

27 Mo., 833; Golden v. State. 25 Geo., 527; Mooney v. State, 83 Ala., 419; Regina v. Cruse

8 C. and P., 541; State v. Garvey, 11 Minn., 154; People v. Harris, 29 Cal., 678; Baileyv. State, 26 Ind., 422; State v. Schingen, 20 Wis., 74. Where insanity results from longcontinued intoxication, the insane person is no more to be punished for his acts than if

the delirium had proceeded from causes not under his control. U. 8. v. Drew, 5 Mason,28; State v McCants, 1 Spears, 884; Bailey v. State, 26 Ind., 422; State v. Hundley, 46Mo., 414.(4) Ignorance of the law, which every man i

s bound to know, excuses no man. See themaxim and illustrations in Broom's Legal Maxims.And this maxim in criminal cases cannot often work a wrong, for there are few actspunishable criminally which a party can be excusable for committing, whether he is awareof the penalty or not. Nevertheless, the ignorance of the party may sometimes be groundfor inflicting a nominal punishment, or recommending him to pardon. Rex v. Lynn, 2 T.R., 733; Rex v. Bailey, R. and Ry., 1

; Rex v. Esop, 7 0. and P., 456. And in some caseswhere the intent is the essence of the crime, it may constitute a defense. As where a person is prosecuted for larceny for the conversion to his own use of money which he hadfound, and which he erroneously believed became his own by the finding. The Queen v.Reed. Car. and M.. 306. Or where parties riotously destroy a house, in the mistaken belief that in law it belongs to one of them. The Queen v. Langford. Car. and M, 602. Orwhere a bankrupt, in honestly following the advice of counsel, withholds property fromhis schedule which ought to be included, and makes to the same an affidavit which in lawis false U. S. v. Conner, 3 McLean, 578.

28 Persons Capable of Committing Crimes. [Book IV.

to religion or sound morality. How far this excuse will be admitted in foroconscientice, or whether the inferior in this case is not bound to obey the divinerather than the human law, it is not my business to decide; though the question, I believe, among the casuists, will hardly bear a doubt. But, however thatmay be, obedience to the laws in being is undoubtedly a sufficient extenuationof civil guilt before the municipal tribunal. The sheriff who burnt Latimerand Ridley, in the bigoted days of Queen Mary, was not liable to punishmentfrom Elizabeth, for executing so horrid an office; being justified by the commands of that magistracy which endeavoured to restore superstition under theholy auspices of its merciless sister, persecution.As to persons in private relations; the principal case, where constraint of asuperior is allowed as an excuse for criminal misconduct, is with regard to thematrimonial subjection of the wife to her husband; for neither a son nor a servant are excused for the commission of any crime, whether capital or otherwise, by the command or coercion of the parent or master; (b) though in somecases the command or authority of the husband, either expressed or implied,will privilege the wife from punishment, even for capital offences. And therefore if a woman oommit theft, burglary or other civil offences against the lawsof sooiety, by the coercion of her husband; or even in his company, which thelaw construes a coercion; she is not guilty of any crime; being considered asacting by compulsion and not of her own will, (c)(5) Which doctrine is atleast a thousand years old in this kingdom, being to be found among the laws

l"*28l °f King *Ina, the West Saxon, (c?) And it appears that among the north-L J ern nations on the continent, this privilege extended to any womantransgressing in concert with a man, and to any servant that committed a jointoffence with a freeman; the male or freeman only was punished, the female orslave dismissed: " prooul dubio quod alterum libertas, alterum necessitas impel-leret." (e) But (besides that in our law, which is a stranger to slavery, no impunity is given to servants, who are as much free agents as their masters) evenwith regard to wives this rule admits of an exception in crimes that are malain se, and prohibited by the law of nature, as murder and the like: not onlybecause these are of a deeper dye, but also, since in a state of nature no one isin subjection to another, it would be unreasonable to screen an offender fromthe punishment due to natural crimes, by the refinements and subordinationsof civil society. In treason, also (the highest crime which a member of societycan, as such, be guilty of), no plea of coverture shall excuse the wife; no presumption of the husband's coercion shall extenuate her guilt: (/) as well because of the odiousness and dangerous consequences of the crime itself, as because the husband, having broken through the most sacred tie of social com-

1Hawk. P. 0. 8. (c) 1.Hal P. C. 45.Cap. 57. (e ) Stiernh. de jure Sueon. 1.S. c. 4. (/) 1Hal. P. 0. 47.

(5) The husband must, however, be present when the offense is committed, or the presumption of coercion by him does notarise. Rex v. Morris, Russ. and Ry., 270. As to-what is sufficient presence, see R v. Connolly, 2 Lew. C. C. , 229. And even then the presumption is not a conclusive one, but only prima facie, and it may be shown by evidencethat in fact the wife was the real criminal. R v. Hammond, 1 Leach, 347; 1 Bish. Cr. L..7th ed., §§359, 891a; Whart. Cr. L., §2475. The wife may therefore be indicted andtried jointly with the husband, and must rely on the coercion for an acquittal when theproofs are adduced at the trial State v. Parkerson, 1 Strob. , 169; Commonwealth v. Murphy, 2 Gray, 510.Coercion is not admitted as an excuse in the case of treason or murder. Reg. v. Manning, 2 C. and K., 887; and perhaps robbery should be added to this list Arch. Cr. L,6; 1 Bish. Cr. L., 7th ed,. § 358; Rex v. Cruse, 8 C. and P., 54t. It is allowed in otherfelonies, and in misdemeanors generally. R v. Ingram, 1 Salk., 384; Commonwealth v.Neal, 10 Mass., 152. But the case of keeping a brothel and gaming-house are exceptions.R. v. Dixon, 10 Mod., 336; State v. Bentz, 11 Mo., 27; Commonwealth v. Lewis, 1 Met.,151. And husband and wife may be jointly indicted and convicted of an assault: Reginav. Cruse, 8 C. and P., 541; or of keeping a liquor nuisance. Commonwealth v. Tryon, 99-Mass., 442.

292

Chap. 2.J Criminal Capacity : Defect of Will. 29

munity by rebellion against the state, has no right to that obedience from a•wife which he himself as a subject has forgotten to pay. In inferior misdemeanors, also, we may remark another exception; that a wife may be indictedand set in the pillory with her husband for keeping a brothel; for this is an offence touching the domestic economy or government of the house, in whichthe wife has a principal share; and is also such an offence as the law presumesto be generally conducted by the intrigues of the female sex. {g) And in all•cases, where the wife offends alone, without the company or coercion of herhusband, she is responsible for her offence as much as any feme-sole.*2. Another species of compulsion or necessity is what our law calls r*o0iduress per minas; (h) or threats and menaces, which induce a fear of *• *

death or other bodily harm, and which take away for that reason the guilt ofmany crimes and misdemeanors; at least before the human tribunal. But thenthat fear which compels a man to do an unwarrantable action ought to be just■and well-grounded; such "qui cadere possit in virum constantem, non timidumet meticulosum," as Bracton expresses it

,

(*) in the words of the civil law. (A)

Therefore, in time of war or rebellion, a man may be justified in doing manytreasonable acts by compulsion of the enemy or rebels, which would admit ofno excuse in the time of peace. (I

)

(6) This however seems only, or at leastprincipally, to hold as to positive crimes, so created by the laws of society; and■which therefore society may excuse; but not as to natural offences so declared by'the law of God, wherein human magistrates are only the executioners of divine punishment. And therefore though a man be violently assaulted, and hathno other possible means of escaping death, but by killing an innocent person;this fear and force shall not acquit him of murder; for he ought rather to diehimself, than escape by the murder of an innocent, (m) But in such a case heis permitted to kill the assailant; for there the law of nature and self-defence,its primary canon, have made him his own protector.3. There is a third species of necessity, which may be distinguished fromthe actual compulsion of external force or fear; being the result of reason andreflection, which act upon and constrain a man's will, and oblige him to do anaction which, without such obligation, would be criminal. And that is, whena man has his choice of two evils set before him, and, being under a necessity■of choosing one, he chooses the *least pernicious of the two. Here the r*oi-iwill cannot be said freely to exert itself, being rather passive than active,

'

or, if active, it is rather in rejecting the greater evil than in choosing the less.Of this sort is that necessity, where a man by the commandment of the law is

bound to arrest another for any capital offence, or to disperse a riot, and resistance is made to his authority: it is here justifiable and even necessary to beat,to wound or perhaps to kill the offenders, rather than permit the murderer to■escape, or the riot to continue. For the preservation of the peace of the kingdom, and the apprehending of notorious malefactors, are of the utmost conse-

(g) 1 Hawk. P. 0. S,S.

(h) See book I, p. 181. U) 1.2,/. 19. (k) Ff. 4,8,5 and 6.

(Z) 1 Hat P. C. 60. (m) 1 Hal P. C. 61.

The presumption of coercion will apply to admissions made by the wife in the husband's)resence, calculated to exonerate him and inculpate herself. Reg. v. Laugher, 2 C. and K.,i25. It is not necessary for the woman to prove an actual marriage in these cases; the jurymay presume it from evidence of cohabitation and reputation. Rex v. Woodward, 8 C.and P., 561; Reg. v. Good, 1 C. and K., 185.That an agent or other person acting under the authority of another is not excused fromcriminal liability by the command of his superior, see Commonwealth v. Hadley, 11 Met.,66 ; Kliffleld v. State, 4 How. Miss, , 806 ; Hays v. State, 13 Mo. , 246 ; State v. Bugbee, 22 Vt. .

32; Barrow v. Page, 5 Hayw., 97. See, also, pott, p. 37, n.(6) Respublica v. McCarty, 2 Dall., 86. "In the eye of the law nothing will excuse theact of joining an enemy, but the fear of immediate death; not the fear of any inferior personal injury, nor the apprehension of any outrage upon property." See, also, Rex v. Mc-Orowther, 1 East, P. C., 71.

293

31 Persons Capable of Committing CEoiEa [Book IV.

quence to the public; and therefore excuse the felony, which the killing wouldotherwise amount to. (w) (7)4. There is yet another case of necessity, which has occasioned great speculation among the writers upon general law; viz., whether a man in extremewant of food or clothing may justify stealing either to relieve his presentnecessities. And this both Grotius (o) and Pufiendorf, (p) together withmany other of the foreign jurists, hold in the affirmative; maintaining bymany ingenious, humane, and plausible reasons, that in such cases the community of goods, by a kind of tacit confession of society, is revived. Andsome even of our own lawyers have held the same, (q) though it seems to bean unwarranted doctrine, borrowed from the notions of some civilians: at leastit is now antiquated, the law of England admitting no such excuse at present,(r) And this its doctrine is agreeable not only to the sentiments of many ofthe wisest ancients, particularly Cicero, (s

) who holds that " suum cuigue in-commodum ferendum est, potius quam de alterius commodis detrahendum,Jtbut also to the Jewish law, as certified by King Solomon himself : (t) "if a["*<?2l

*h'ef 8teal8 10 satisfy his soul when he is hungry, he shall restore *seven-

J fold, he shall give all the substance of his house:" which was the ordinary punishment for theft in that kingdom. And this is founded upon thehighest reason: for men's properties would be under a strange insecurity, if

liable to be invaded according to the wants of others, of which wants no mancan possibly be an adequate judge, but the party himself who pleads themIn this country, especially, there would be a peculiar impropriety in admittingso dubious an excuse: for by our laws such sufficient provision is made for thepoor by the power of the civil magistrate, that it is impossible that the mostneedy stranger should ever be reduced to the necessity of thieving to supportnature. The case of a stranger is

,

by the way, the strongest instance put byBaron Puffendorf, and whereon he builds his principal arguments: which, however they may hold upon the continent, where the parsimonious industry ofthe natives orders every one to work or starve, yet must lose all their weightand efficacy in England, where charity is reduced to a system, and interwovenin our very constitution. Therefore, our laws ought by no means to be taxedwith being unmerciful for denying this privilege to the necessitous; especiallywhen we consider, that the king, on the representation of his ministers of justice, hath a power to soften the law, and to extend mercy in cases of peculiarhardship. An advantage which is wanting in many states, particularly thosewhich are democratical; and these have in its stead introduced and adopted,in the body of the law itself, a multitude of circumstances tending to alleviateits rigour. But the founders of our constitution thought it better to vest inthe crown the power of pardoning particular objects of compassion, than tocountenance and establish theft by one general undistinguishing law.VII. To these several cases, in which the incapacity of committing crimesarises from a deficiency of the will, we may add one more, in which the lawsupposes an incapacity of doing wrong, from the excellence and perfection of

r*3Q-ithe *person; which extend as well to the will as to the other qualities

*■ J of his mind. I mean the case of the king; who, by virtue of his royalprerogative, is not under the coercive power of the law;(w) which will notsuppose him capable of committing a folly, much less a crime. We are therefore, out of reverence and decency, to forbear any idle inquiries, of what wouldbe the consequence if the king was to act thus and thus: since the law deemsso highly of his wisdom and virtue as not even to presume it possible for himto do any thing inconsistent with his station and dignity: and therefore hasmade no provisions to remedy such a grievance. But of this sufficient wassaid in a former volume, (») to which I must refer the reader.(n) 1 Hal. P. C. 52. (o) Dejmre o. and p. I. 2,

c. 2.

(p) L. of Nat. and N. L 2, c 6.

(0) Britton, c. tO. Mirr. o. 4, i 16. (r) 1 Hal. P. 0. 64. (*) De off. I. 3,

e. 5.

(1)

Prov. 80. (u) 1 HaL P. C. 44. (t>)Book I, ch. 7,

page 244.

(7) See State v. Roane, 2 Dev., 58; Tate v. State, 5 Blackf., 78.294