Chap. 2.] Persons Capable of Committing . 30

CHAPTER II.

OF THE PERSONS CAPABLE OF COMMITTING CRIMES.

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

for the general rule is, that no person shall be excused from punishment for disobedience to the laws of his country, excepting such as are expressly de fined and exempted by the laws themselves.

All the several pleas and excuses, which protect the committer of a forbid den act from the punishment which is otherwise annexed thereto, may be reduced to this single consideration, the want or defect of will. An involun tary act, as it has no claim to merit, so neither can it induce any guilt: the con

currence of the will, when it has its choice either to do or to avoid the fact in question, being the only thing *that renders human action either praise- r*oii J L worthy or culpable. Indeed, to make a complete cognizable by 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 as the commission of it, yet, as no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwise than as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know. For which reason, in all temporal jurisdictions, an overt act, or some open of an intended crime, is necessary in order to demonstrate the depravity of the is will, before the man liable to punishment. And, as a vicious will without a

vicious act is no civil crime, so, on the other hand, an unwarrantable act with out a vicious will is no crime at all. So that to constitute a crime against human laws, there must be, first, a vicious will; and, secondly, an unlawful act consequent 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 the will, which is nothing else but a determination of one's ohoice to do or to ab stain from a particular action: he, therefore, that has no understanding can have no will to guide his conduct. 2. Where there is understanding and will sufficient, residing in the party; but not called forth and exerted at the time of the action done; which is the case of all offences committed by chance or ignorance. Here the will sits neuter; and neither concurs with the act, nor disagrees to it. 3. Where the action is constrained by some outward force

and violence. Here the will counteracts the deed; and is so far from concur ring 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 several species of defect in will, as they fall under some one or other of these general heads: as infancy, idiocy, lunacy, and intoxication, which fall under the first class; misfortune and ignorance, which *may be referred to the second; r and compulsion or , which may properly rank in the third. * is a L First, we will consider the case of infancy or nonage; which defect of the understanding. Infants, under the age of discretion, ought not to be whatever, punished by any criminal prosecution (a) What the age of discre 1 te!) Hawk. P. 0. a. 287 Capable Committing 22 Persons of Crimes. [Book IV. is tion is, in various nations, matter of some variety. The civil law distin guished the age of minors, or those under twenty-five years old, into three stages: infantia, from the birth till seven years of age: pueritia, from seven to fourteen; and pubertas, from fourteen upwards. The period of pueritia, or childhood, was again subdivided into two equal parts: from seven to ten and an half was OBtaa infantia} proximo,; from ten and an half to fourteen, was cetas pubertati proximo,. During the first stage of infancy, and the next half stage of childhood, infantia} proximo, they were not punishable for crime, any (b) During the other half stage of childhood, approaching to puberty, 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 the age of puberty, and afterwards), minors were liable to be punished, as well capitally as otherwise. The law of England does in some cases privilege an infant, under the age of twenty-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 of his fortune until twenty-one, he wants the capacity to do those things which is the law requires. But where there any notorious breach of the peace, a riot, battery, or the like (whioh infants, when full grown, are at least as liable as r*2i1 others to commit), for these an infant, above *the age of fourteen, is 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 age of possible discretion, when first the understanding might open; (e) and from thence till the offender was fourteen, it was cetas pubertati proximo, in which he might or might not be guilty of a crime, according to his natural capacity or 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 be supposed innocent, of any capital crime which he in fact committed. But by the law, as it now stands, and has stood at least ever since the time of Edward the Third, the capacity of doing ill, or contracting guilt, is not so much measured by years and days, as by the strength of the delinquent's understand ing and judgment. For one lad of eleven years old may have as much cun ning as another of fourteen; and in these cases our maxim is, that "malitia mpplet oetatem." Under seven years of age indeed an infant cannot be guilty is of felony; (/) for then a felonious discretion almost an impossibility in nature: but at eight years old he may be guilty of felony, (g) Also, under fourteen, 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 dis cern between good and evil, he may be convicted and suffer death. (1) Thus a 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 been sentenced to death, and he of ten years actually hanged; because it appeared upon 2 (1) See upon this subject, 8tate v. Goin, 9 Humph., 175; People v. Randolph, Park. C.

R., 174; Commonwealth v. Green, 2 Pick., 380. A male child under the age of fourteen it is is supposed incapable of committing a rape; but in Ohio has been decided that this but State, a presumption which may be overcome by evidence of maturity. Williams v. 14

Ohio, 222. So he may be convicted of an with intent to commit a rape. People v. is Randolph, 2 Park. 0. R., 174. An infant liable civilly for his . 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. 288 Capacity Idiocy Chap. 2.J Criminal : and Insanity. 28

killed, which hiding manifested a consciousness of guilt, and a discretion *to discern between good and evil. And there was an instance in (A) rmn* i* the 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 cun he was found condemned, and Thus ning, guilty, hanged accordingly, (i)

also in very modern times, a boy of ten years old was convicted on his own confession of murdering his bedfellow, there appearing in his whole behaviour a plain tokens of mischievous discretion ; and, as the sparing this boy merely on account of his tender years might be of dangerous consequence to the

public, by propagating a notion that children might commit such atrocious

crimes with impunity, it was unanimously agreed by all the judges, that he

was 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 cleai beyond all doubt and contradiction.

H. The second case of a deficiency in will, which excuses from the guilt of

crimes, arises also from a defective or vitiated understanding, viz. in an idiot

or a lunatic. For the rule of law as to the latter, which may easily be adapted

also to the former, is, that, "furiosus furore solum punitur." In criminal caser

therefore, idiots and lunatics are not chargeable for their own acts, if commit itself, ted when under these incapacities: no, not even for treason (k) (2) a Also if a man in his sound memory commits capital offence, and before ar

raignment 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. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried: for

how can he make his defence ? If, after he be tried and found guilty, he losef

his senses before judgment, judgment shall not be pronounced; and if, aftei judgment, he becomes of non-sane memory, execution shall be stayed: for per- adventure, says the humanity of the , had the prisoner been ol sound memory, he might have alleged *something in stay of judgment

*■ * or exeoution. Indeed, in the of the a

(/) bloody reign Henry Eighth, if statute was made, (m) which enacted that a person, being compos mentis, should commit high 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 statute 1 and 2 P. and M., c.

10. For, as is observed by Sir Ed ward 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. 8 (0 1 Hal. P. C. 84. (m) 83H. Vm, c. 20. (n) Inst. «.

(2) As to the degree of mental unsoundness which shall excuse a person from punishment for 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 found

instructive, though they will probably leave upon the mind a painful sense of the difficul ties surrounding this whole subject, and the impossibility of laying down definitions and abstract rules which can be easily and safely applied in practice. See also McNaughton's Case, 10 CL &Fin., 200. is As to the burden of proof when the defense of insanity made to a criminal prosecu tion, 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; 1 State v. Pratt, Houst. C, O., 249; Boswell v. State, 63 Ala., 307 ; 8. C, 85 Am. Rep., 20; S. State v. Redemeier, 71 Mo., 178; 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; State t. 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 Capable Committing 25 Persons of Crimes. [Book IV.

•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." But if there be any doubt, whether the party be compos or not, this shall be tried 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 criminal aotion committed under such deprivation of the senses: but, if a lunatic hath lucid intervals of understanding, he shall answer for what he does in those intervals as if he had no deficiency, (o) Yet, in the case of absolute madmen, as they are not answerable for their actions, they should not be per mitted 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 reason might be confined till they recover their senses, (p) without waiting for the forms 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 drunken ness or intoxication, which, depriving men of their reason, puts them in a tem porary frenzy; our law looks upon this as an aggravation of the offence, rather "than as an excuse for any criminal misbehaviour. A drunkard, says r*9Rl-* L Sir Edward Coke, (r) who is voluntaries daemon, hath no privilege thereby ; 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, that the 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. The same indulgence, which may be necessary to make the blood move in Norway, would make an Italian mad. A German, therefore, says the president Mon

drinks custom, founded upon constitutional necessity; a tesquieu, (s) through Spaniard drinks through choice, or out of the mere wantonness of luxury: and drunkenness, he adds, ought to be more severely punished, where it makes men mischievous and mad, as in Spain and Italy, than where it only renders them stupid and heavy, as in Germany and more northern countries. And accordingly, in the warm climate of Greece, a law of Pittacus enacted, "that a he who committed a crime when drunk, should receive double punishment;" one for the crime itself, and the other for the ebriety which prompted him to commit it.(<) The Roman law, indeed, made great allowances for this vice: "per remittitur." But the law of con vinum delapsis capitalis poena (w) England, it is sidering how easy it to counterfeit this excuse, and how weak an excuse

is (though real), will not suffer any man thus to privilege one crime by another. (») (3)

(o) 1 Hal. P. 0. 81. 1 t., 8. Inst. 847. Sp. b. 14, 10. ( n) Bro. Abr. Coront, 101. (j)170eo. II, c. (r) (») L. 0. 8, (() Puff. L. of N. b. c 8. («) fj. 48. 16. 8. («?) Plowd. 19.

(3) A man who, by means of intoxication, voluntarily puts himself in condition to have no control of his actions, must be held to intend the consequences. The safety of the com it is munity requires this rule. Intoxication is so easily counterfeited, and when real so often resorted to as a means of nerving the person up to the commission of some desperate act, that the law cannot recognize it as an excuse for the commission of crime. U. 8. v. 3 9 Drew, 5 Mason, 28; Pirtle v. State. Humph., 663- Commonwealth v. Hawkins, 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 consideration in criminal cases, where the guilty knowledge or intent constitutes the principal ingredient of the crime, so as to make the peculiar state and condition of the criminal's mind at the time, with reference to the act done, the important subject of inquiry. See Swan v. State, 401; 1 19 4 Humph., 136; U. 8. v. Roudenbush, Bald., 517; Roberts v. People, Mich.,

Kelley v. State, 3 S. and M., 518. As in the case of passing counterfeit money: Pigman v. State. 14 Ohio, 555; or the appropriation of another's property which might be larceny or a trespass merely, according as the specific intent to steal was present or absent. Rex

v. Pitman, 2 C. and P., 428. See further, O'Herrin v. State, 14 Ind., 420; State v. Cross, 290 Capacity Chap. 2.] Criminal : Detect of Will. 26

IV. A fourth deficiency of will is where' a man commits an unlawful act by misfortune or chance, and not by design. Here the will observes a total neu trality, and does not co-operate with the deed; which therefore wants one main ingredient of a crime. Of this, when it affects the life of another, we shall find more occasion to speak hereafter; at present only observing, that if accidental mischief to follow from the any *happens performance of a r*27i lawful 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 foresee or intend, as the death of a man or the like, his want of foresight shall be no excuse; for, being guilty of one offence, in doing antecedently what is in it self unlawful, he is oriminally guilty of whatever consequence may follow the first misbehaviour, (a;) V. Fifthly: ignorance or is another defect of will; when a man, in tending 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 them whioh is necessary to form a criminal act. But this must be an ignorance or mistake of fact and not an error in point of law. As if a man, intending to kill a thief or house breaker in his own house, by mistake kills one of his own family, this is no criminal action: (y) but if a man thinks he has a right to kill a person excommunicated or outlawed, wherever he meets him, and does bo; this is wilful murder. For a mistake in point of law, whioh every person of discretion not only may, but is bound and presumed to know, is in criminal cases no sort of defence. Ignorantia juris, quod quisque tenetur scire, nemi-

nem excusat, is as well the maxim of our own law, as it was of the Roman. (z) («) (*)

VL A sixth species of defect of will is that arising from compulsion and in evitable necessity. These are constraint upon the will, whereby a man is urged to 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 highly just and equitable that a man should be excused for those acts which are done through unavoidable force and compulsion.

this nature, in the first is the of civil *1. Of place, obligation subjec- r*28-i *• J tion, whereby the inferior is constrained by the superior to act contrary to what his own reason and inclination would suggest: as when a legislator establishes iniquity by a law, and commands the subject to do an act contrary 8. 9. (x) 1 HoL P. C. 89. (y) Cro. Car. 638. («) PlowdL 843. (a) Ff. 22.

27 Mo., 833; Golden v. State. 25 Geo., 527; Mooney v. State, 83 Ala., 419; Regina v. Cruse 11 154; Harris, 29 Cal., 678; 8 C. and P., 541; State v. Garvey, Minn., People v. Bailey v. State, 26 Ind., 422; State v. Schingen, 20 Wis., 74. Where insanity results from long is continued intoxication, the insane person 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, 46 Mo., 414.

(4) Ignorance of the law, which every man is bound to know, excuses no man. See the maxim and illustrations in Broom's Legal Maxims.

And this maxim in criminal cases cannot often work a wrong, for there are few acts punishable criminally which a party can be excusable for committing, whether he is aware of the penalty or not. Nevertheless, the ignorance of the party may sometimes be ground 2 for inflicting a nominal punishment, or recommending him to pardon. Rex v. Lynn, T. 7 R., 733; Rex v. Bailey, R. and Ry., 1; Rex v. Esop, 0. and P., 456. And in some cases a it a where the intent is the essence of the crime, may constitute defense. As where per to use son is prosecuted for larceny for the conversion his own of money which he had found, 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 be lief that in law it belongs to one of them. The Queen v. Langford. Car. and M, 602. Or counsel, where a bankrupt, in honestly following the advice of withholds property from his schedule which ought to be included, and makes to the same an affidavit which in law

is 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 foro conscientice, or whether the inferior in this case is not bound to obey the divine rather than the human law, it is not my business to decide; though the ques tion, I believe, among the casuists, will hardly bear a doubt. But, however that may be, obedience to the laws in being is undoubtedly a sufficient extenuation of civil guilt before the municipal tribunal. The sheriff who burnt Latimer and Ridley, in the bigoted days of Queen Mary, was not liable to punishment from Elizabeth, for executing so horrid an office; being justified by the com mands of that magistracy which endeavoured to restore superstition under the holy auspices of its merciless sister, persecution. As to persons in private relations; the principal case, where constraint of a superior is allowed as an excuse for criminal misconduct, is with regard to the matrimonial subjection of the wife to her husband; for neither a son nor a ser vant are excused for the commission of any crime, whether capital or other wise, by the command or coercion of the parent or master; (b) though in some cases the command or authority of the husband, either expressed or implied, will privilege the wife from punishment, even for capital offences. And there fore if a woman oommit theft, burglary or other civil offences against the laws of sooiety, by the coercion of her husband; or even in his company, which the law construes a coercion; she is not guilty of any crime; being considered as will, acting by compulsion and not of her own (c)(5) Which doctrine is at least a thousand years old in this kingdom, being to be found among the laws the Saxon, it that l"*28l °f King *Ina, West (c?) And appears among the north- L J ern nations on the continent, this privilege extended to any woman transgressing in concert with a man, and to any servant that committed a joint offence with a freeman; the male or freeman only was punished, the female or " slave dismissed: prooul dubio quod alterum libertas, alter um necessitas impel- leret." (e) But (besides that in our law, which is a stranger to slavery, no im punity is given to servants, who are as much free agents as their masters) even with regard to wives this rule admits of an exception in crimes that are mala in se, and prohibited by the law of nature, as murder and the like: not only because these are of a deeper dye, but also, since in a state of nature no one is in subjection to another, it would be unreasonable to screen an offender from the punishment due to natural crimes, by the refinements and subordinations of civil society. In treason, also (the highest crime which a member of society can, as such, be guilty of), no plea of coverture shall excuse the wife; no pre sumption of the husband's coercion shall extenuate her guilt: (/) as well be cause of the odiousness and dangerous consequences of the crime itself, as be cause the husband, having broken through the most sacred tie of social com-

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

(5) The husband must, however, be present when the offense is committed, or the pre sumption 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 pre sumption is not a conclusive one, but only prima facie, and it may be shown by evidence that 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 and tried jointly with the husband, and must rely on the coercion for an acquittal when the proofs are adduced at the trial State v. Parkerson, 1 Strob. , 169; Commonwealth v. Mur phy, 2 Gray, 510. Coercion is not admitted as an excuse in the case of treason or murder. Reg. v. Man ning, 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 other felonies, 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: Regina v. 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 misde meanors, also, we may remark another exception; that a wife may be indicted and set in the pillory with her husband for keeping a brothel; for this is an of fence touching the domestic economy or government of the house, in which the wife has a principal share; and is also such an offence as the law presumes to 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 her husband, 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*o0i *• * duress 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 of many crimes and misdemeanors; at least before the human tribunal. But then that 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 timidum

et meticulosum," as Bracton it, in the words of the civil law. expresses (*) (A)

Therefore, in time of war or rebellion, a man may be justified in doing many treasonable acts by compulsion of the enemy or rebels, which would admit of no excuse in the time of This however seems or at least peace. (I) (6) only, principally, 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 div

ine punishment. And therefore though a man be violently assaulted, and hath no 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 die

innocent, a himself, than escape by the murder of an (m) But in such case he is 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 from the actual compulsion of external force or fear; being the result of reason and reflection, which act upon and constrain a man's will, and oblige him to do an action which, without such obligation, would be criminal. And that is, when

a 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-i ' will cannot be said freely to exert itself, being rather passive than active, it is or, if active, rather in rejecting the greater evil than in choosing the less. is a Of this sort is that necessity, where man by the commandment of the law bound to arrest another for any capital offence, or to disperse a riot, and resist is ance is made to his authority: it 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 king dom, and the apprehending of notorious malefactors, are of the utmost conse- S, 8, I, 4, 5 (g) 1 Hawk. P. 0. S. (h) See book p. 181. U) 1.2,/. 19. (k) Ff. and 6. 1 (Z) 1 Hat P. C. 60. (m) 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 jury

may 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 from criminal liability by the command of his superior, see Commonwealth v. Hadley, 11 Met., ; , ; , 4

Miss, . 66 ; Kliffleld v. State, How. 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 the act of joining an enemy, but the fear of immediate death; not the fear of any inferior per sonal 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 would otherwise amount to. (w) (7) 4. There is yet another case of necessity, which has occasioned great specu lation among the writers upon general law; viz., whether a man in extreme want of food or clothing may justify stealing either to relieve his present necessities. And this both Grotius (o) and Pufiendorf, (p) together with many other of the foreign jurists, hold in the affirmative; maintaining by many ingenious, humane, and plausible reasons, that in such cases the com munity of goods, by a kind of tacit confession of society, is revived. And some even of our own lawyers have held the same, (q) though it seems to be an unwarranted doctrine, borrowed from the notions of some civilians: at least it 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 of the wisest ancients, Cicero, who holds that " suum in-

particularly (s) cuigue commodum ferendum est, potius quam de alterius commodis detrahendum,Jt

but also to the Jewish law, as certified by King Solomon himself : (t) "if a

*h'ef 8teal8 10 his soul when he is he shall restore *seven- ["*

ary punishment for theft in that kingdom. And this is founded upon the if highest reason: for men's properties would be under a strange insecurity, liable to be invaded according to the wants of others, of which wants no man can possibly be an adequate judge, but the party himself who pleads them

In this country, especially, there would be a peculiar impropriety in admitting

so dubious an excuse: for by our laws such sufficient provision is made for the it poor by the power of the civil magistrate, that is impossible that the most needy stranger should ever be reduced to the necessity of thieving to support a nature. The case of stranger is, by the way, the strongest instance put by Baron Puffendorf, and whereon he builds his principal arguments: which, how ever they may hold upon the continent, where the parsimonious industry of the natives orders every one to work or starve, yet must lose all their weight

and efficacy in England, where charity is reduced to a system, and interwoven in our very constitution. Therefore, our laws ought by no means to be taxed with being unmerciful for denying this privilege to the necessitous; especially when we consider, that the king, on the representation of his ministers of jus

tice, hath a power to soften the law, and to extend mercy in cases of peculiar

hardship. An advantage which is wanting in many states, particularly those which are democratical; and these have in its stead introduced and adopted,

in the body of the law itself, a multitude of circumstances tending to alleviate

its rigour. But the founders of our constitution thought it better to vest in the crown the power of pardoning particular objects of compassion, than to countenance and establish theft by one general undistinguishing law. VII. To these several cases, in which the incapacity of committing crimes

arises from a deficiency of the will, we may add one more, in which the law supposes an incapacity of doing wrong, from the excellence and perfection of the which extend as well to the will as to the other r*3Q-i *person; qualities *■ J of his mind. I mean the case of the king; who, by virtue of his royal

prerogative, is not under the coercive power of the law;(w) which will not

suppose him capable of committing a folly, much less a crime. We are there fore, out of reverence and decency, to forbear any idle inquiries, of what would

be the consequence if the king was to act thus and thus: since the law deems

so highly of his wisdom and virtue as not even to presume it possible for him to do any thing inconsistent with his station and dignity: and therefore has

made no provisions to remedy such a grievance. But of this sufficient was

said in a former volume, (») to which I must refer the reader. 1 (n) Hal. P. C. 52. (o) Dejmre o. and p. I. 2, c. 2. (p) L. of Nat. and N. L 2, c 6. 3, 4, 1 I. Mirr. De 5. (0) Britton, c. tO. o. i 16. (r) Hal. P. 0. 64. (*) off. e. 7, 1 I, (1) Prov. 80. (u) HaL P. C. 44. (t>)Book ch. page 244.

(7) See State v. Roane, 2 Dev., 58; Tate v. State, 5 Blackf., 78. 294