there be thought and design, a faculty to distinguish the nature of actions, to discern the difference between moral good and evil; then, upon the fact of the offence proved, the judgment of the law must take place. (y) If a man in his sound memory commits a capital offence, and Proceedings with respect to before arraignment for it he becomes mad, he ought not to be lunatic offendarraigned for it; because he is not able to plead to it with that ers. advice and caution that he ought. And if, after he has pleaded, the prisoner become mad, he shall not be tried; as he cannot make his defence. If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if after judgment he becomes of nonsane memory, execution shall be stayed; for, peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution. (2) And, by the common law, if it be doubtful whether a criminal, who at his trial is in appearance a lunatic, be such in truth or not, the fact shall be investigated. (a) And it appears that it may be tried by the jury, who are charged to try the indictment (b) by an inquest of office to be returned by the sheriff of the county wherein the court sits (c) 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. (d) And if it be found that the party only feigns himself mad, and he refuses to answer or plead, he shall be dealt with as one who stands mute. (e) But in case a person in a phrenzy happen by some oversight, or by means of the gaoler, to plead to his indictment, and is put upon his trial, and it appears to the Court upon his trial that he is mad, the judge in his discretion may discharge the jury of him and remit him to gaol to be tried after the recovery of his understanding, especially in case any doubt appear upon the evidence touching his guilt, and this in favorem vitæ; and if there be no colour of evidence to prove him guilty, or if there be pregnant evidence to prove his insanity at the time of the fact committed, then upon the same favour of life and liberty it is fit that the trial proceed in order to his acquittal. (ƒ) on account of By a recent statute, 39 and 40 Geo. 3. c. 94, it is enacted" that Disposal of per"in all cases when it shall be given in evidence upon the trial of sons acquitted "any person charged with treason, murder, or felony, that such insanity. "person was insane at the time of the commission of such offence, " and such person shall be acquitted, the jury shall be required to (c) 1 Hawk. P. C. c. 1. s. 4. 1 And. 107. 1 Sav. 50, 56. 1 Hale 35. (d) Fost. 46. Kel. 13. 1 Lev. 61. (e) 1 Hawk. P. C. c. 1. s. 4. Disposal of persons found in sane upon arraignment; Or, upon trial; "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 the com"mitting such offence, the court before whom such trial shall be "had, shall order such person to be kept in strict custody, in such 66 place and in such manner as to the Court shall seem fit, until "His Majesty's pleasure shall be known; and it shall thereupon "be lawful for His Majesty to give such order for the safe custody "of such person during his pleasure, in such place and in such 66 manner as to His Majesty shall seem fit." (a) And by the second section of the same statute it is enacted, " that if any person indicted for any offence shall be insane, and "shall upon arraignment be found so to be by a jury lawfully im"pannelled for that purpose, so that such person cannot be tried upon such indictment; or if upon the trial of any person so "indicted, such person shall appear to the jury charged with such "indictment to be insane, it shall be lawful for the Court, before "whom any such person shall be brought to be arraigned or tried as aforesaid, to direct such finding to be recorded, and thereupon "to order such person to be kept in strict custody, till His Ma"jesty's pleasure shall be known." And it is further enacted, "that if any person charged with any offence, shall be brought charge for want before any court to be discharged for want of prosecution, and "such person shall appear to be insane, it shall be lawful for such "court to order a jury to be impanelled to try the sanity of such person; and if the jury so impanelled shall find such person to "be insane, it shall be lawful for such court to order such person "to be kept in strict custody, in such place and in such manner "as to such court shall seem fit, until His Majesty's pleasure shall "be known."(g) Or, upon dis of prosecution. 66 This section extends to all offences, and is not confined like the first, to cases of treason, murder, and felony. The prisoner was indicted for assaulting one Elizabeth Earl, and beating her with intent to murder her. The jury found specially that he was insane at the time of committing the offence, and also at the time of the trial, and declared that they acquitted him on account of such insanity, and the learned Judge ordered him to be kept in strict custody till His Majesty's pleasure should be known. But a doubt being suggested, whether the Judge had authority under the statute to take such a finding and make such an order, the offence being misdemeanor only and not felony, the point was submitted to the consideration of the twelve judges. They were unanimously of opinion that the second section applies to all cases, though only misdemeanors,—and that though mere insanity at the time of the (a) And see as to Ireland, stat. 1 & 2 Geo. 4. c. 33. s. 16. (g) The third section of the statute contains a provision for the commitment of persons as dangerous and suspected to be insane. And see 17 Geo. 2. c. 5. as to the restraint and removal of lunatics by order of two justices: and 48 Geo. 3. c. 96. for several provisions which are thereby made for the better care and maintenance of lunatics, being paupers or criminals in custody under 39 and 40 Geo. 3. c. 94. As to such cases in Ireland see 1 and 2 Geo. 4. c. 33. s. 17. offence would not have warranted the order, yet an insanity found at the time of the trial did warrant it. (h) after convic removed to a lunatic asylum. The 56 Geo. 3. c. 117, reciting that it was expedient that pro- Persons bevision should be made for the due care of persons who might, after coming insane conviction for any criminal offence, become insane, enacts that if tion, and durany person, having been duly convicted for any offence, after such ing confineconviction and during imprisonment or continuance in any gaol, ment may be prison, hulk, &c., under sentence of transportation or imprisonment, shall become insane, and it shall be duly certified by two physicians or surgeons that such person is insane, one of the principal secretaries of state may direct, by warrant under his hand, that such person shall be removed to a lunatic asylum or other proper receptacle for insane persons. And it is provided that such person shall be kept there until it shall be certified by two physicians or surgeons that he has become of sound mind; upon which the said secretary of state may, in case such person is still subject to imprisonment, by his warrant, direct him to be removed back to the gaol, prison, hulk, &c., or if the period of his imprisonment be expired, may direct him to be discharged. III. Persons are properly excused from those acts which are Subjection to not done of their own free will, but in subjection to the power of others. the power of others. (i) Thus, though a legislator establish iniquity by a law, and command the subject to do an act contrary to religion and sound morality; yet obedience to such laws, while in being, is a sufficient extenuation of civil guilt before the municipal tribunal; though a different decree will be pronounced in foro conscientiæ.(j) And actual force upon the person and present fear of death may, in some cases, excuse a criminal act. Thus, although the fear of having houses burnt or goods spoiled is no excuse in law for joining and marching with rebels, yet an actual force upon the person and present fear of death may form such excuse, provided they continue all the time during which the party remains with the rebels. (a) As to persons in private relations, the principal case where constraint of a superior is allowed as an excuse for criminal misconduct proceeds upon the matrimonial subjection of the wife to her husband: for neither a child nor a servant are excused the commission of any crime, whether capital or not capital, by the command or coercion of the parent or master. (k) But 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 for committing a bare theft, or even a burglary, by the coercion of her husband, or in his company, which the law construes a coercion. (1) But this is only the presumption of law; so that if upon the evidence it can clearly appear that the (h) Rex v. Little, cor. Wood, B. Surrey Summer Assizes, 1820, Hil. T. 1821. MS. Bayley, J. and Russ. & Ry. 430. (i) 1 Hale 43. 4 Bla. Com. 27. (j) 4 Bla. Com. 27. (a) Per Lee, C. J., 18 Sta. Tri. 393, 394. (k) 1 Hale 44, 516. c. 1. s. 14. Moor. 813. 1 Hawk. P. C. 3 Kel. 34. (7) 1 Hale 45. 1 Hawk. P. C. c. 1. s. 9. 4 Bla. Com. 28. Kel. 31. According to some, if a wife commit a larceny by the command of her husband, she is not guilty; which seems to be the law if the husband be present, but not if he be absent at the time and place of the felony committed. 1 Hale 45. Feme covert under the coerband. cion of her hus Not answer able for her husband's wife was not drawn to the offence by her husband, but that she was the principal inciter of it, she is guilty as well as the husband. And if she be any way guilty of procuring her husband to commit the offence, it seems to make her an accessory before the fact in the same manner as if she had been sole. (m) And 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. (n) And she will be guilty in the same manner of all those crimes which, like murder, are mala in se, and prohibited by the law of nature. (0) And in one case it appears to have been held by all the judges, upon an indictment against a married woman, for falsely swearing herself to be next of kin and procuring administration, that she was guilty of the offence, though her husband was with her when she took the oath. (p) But upon an indictment for disposing of forged notes, it was ruled that a woman was protected by being the wife of a man indicted, who disposed of them in her presence, and with whom she was indicted. (a) But where the wife is to be considered merely as the servant of the husband, she will not be answerable for the consequences of breach of duty. his breach of duty, however fatal, though she may be privy to his conduct. Charles Squire and his wife were indicted for the murder of a boy, who was bound as a parish apprentice to the prisoner Charles; and it appeared in evidence that both the prisoners had used the apprentice in a most cruel and barbarous manner, and that the wife had occasionally committed the cruelties in the absence of the husband. But the surgeon who opened the body deposed that in his judgment the boy died from debility and want of proper food and nourishment, and not from the wounds, &c. which he had received. Upon which Lawrence J. directed the jury, that, as the wife was the servant of the husband, it was not her duty to provide the apprentice with sufficient food and nourishment, and that she was not guilty of any breach of duty in neglecting to do so; though, if the husband had allowed her sufficient food for the apprentice, and she had wilfully withholden it from him, then she would have been guilty. But that here the fact was otherwise; and therefore, though in foro conscientiæ the wife was equally guilty with her husband, yet in point of law she could not be said to be guilty of not providing the apprentice with sufficient food and nourishment. (q) In inferior misdemeanors a wife may be indicted, together with her husband; and she may be punished with him for keeping a bawdy house, for this is an offence as to the government of the house in which the wife has a principal share; and also such an offence as may generally be presumed to be managed by the in (m) 1 Hale 516. 2 Hawk. P. C. c. 29. s. 34. (n) 1 Hawk. P. C. c. 1. s. 11. 1 Hale 45, 47, 48, 516. Kel. 31. 2 Bla. Com. 29. The reason given is the heinousness of those crimes. (0) 4 Blac. Com. 29. (p) Rex v. Dicks, in 1781, 2 MS. Sum. tit. Of Offenders, and MS. Bayley J. (a) Rex v. Atkinson, post 20. (q) Rex v. Squire and his wife, Stafford Lent Assizes, 1799. MS. trigues of the sex. (r) But a prosecution for a conspiracy is not maintainable against a husband and wife only; because they are esteemed but as one person in law, and are presumed to have but one will. (s) covert is re In all cases where the wife offends alone without the company But in some or coercion of her husband, she is responsible for her offence as cases a feme much as any feme sole. (1) Thus she may be indicted alone for a riot; (u) may be convicted of selling gin against the injunctions her offence. of the 9 Geo. 2. c. 23. (w) or for recusancy. (a) And she may be indicted for being a common scold; (y) for assault and battery; (2) for forestalling; (a) for a forcible entry; (b) or for keeping a bawdy house, if her husband do not live with her; (c) and for trespass or slander. (d) And she may also be indicted for receiving stolen goods of her own separate act without the privity of her husband; or if he, knowing thereof, leave the house and forsake her company, she alone shall be guilty as accessory; (e) and though in a serious offence, such as that of sending threatening letters, the husband be an agent in the transaction, yet if he be so ignorantly, by the artifice of the wife, she alone is punishable. (f) And generally a feme covert shall answer as much as if she were sole for any offence not capital against the common 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 may be punished for it without the husband, by way of indictment; which being a proceeding grounded merely on the breach of the law, the husband shall not be included in it for any offence to which he is in no way privy. (g) It is no excuse for the wife that she committed the offence by her husband's order and procurement, if she committed it in his absence; at least it is not to be presumed in such case that she acted by coercion. Sarah Morris was tried for uttering a forged order knowing it to be forged, and her husband for procuring her to commit the offence; and it appeared that her husband ordered (r) 1 Hawk. P. C. c. 1. s. 12. Williams's case, 10 Mod. 63. Salk. 384. S. C. So also for keeping a gaming house. Rex v. Dixon and wife, 10 Mod. 335. where by the indictment the husband and wife, et uterque corum were charged with the offence. (8) 1 Hawk. P. C. c. 72. s. 8. (t) 4 Blac. Com. 29. But if a wife incur a forfeiture by a penal statute, the husband may be made a party to an action or information for the same, and shall be liable to answer what shall be recovered thereon. 1 Hawk. P. C. c. 1. s. 13. (u) Dalt. 447. (w) Croft's case, Str. 1120. And she may be committed for disobeying an order of bastardy. Rex v. Ellen Taylor, 3 Burr. 1679. (z) Hob. 96. Foster's case, 11 Co. 62. 1 Sid. 410. Sav. 25. (y) Foxley's case, 6 Mod. 213. 239. (z) Salk. 384. YOL. I. (a) Sid. 410. 2 Keb. 634. Qu. and see Bac. Ab. Baron and feme (G.) notes. (b) 1 Hale 21. Co. Lit. 357. 1 Hawk. c. 64. s. 35. That is in respect of such actual violence as shall be done by her in person, but not in respect of what shall be done by others at her command, because such command is void. (c) 1 Hawk. P. C. c. 1. s. 13. n. 11. where 1 Bac. Abr. 294. is cited: sed qu. (d) 1 Bac. Abr. Baron and feme, (G.) notes. (e) 22 Ass. 40. Dalt. 157. (f) Hammond's case, 1 Leach 447. (g) 1 Hawk. P. C. c. 1. s. 13. 1 Bac. Abr. Baron and feme (G.) where it is said in the notes, that she cannot be indicted for barratry, and Roll. Rep. 39. is cited. But qu. and see 1 Hawk. P. C. c. 81. s. 6. and post, Book II. Chap. xxii. C Coercion of the husband sumed when he is not present at the com not to be pre. mission of the |
