[1 & 2 Ph. & M. c. 10. For, as is observed by Sir Edw. Coke (x), "the execution of an offender is, for example, ut pana ad paucos, metus ad omnes perveniat:" but so it is not when a madman is executed; but should be a miserable spectacle, both against law, and of extreme inhumanity and cruelty, and can be of no example to others.] On the other hand, however, it is not every kind or degree of insanity, that will exempt a man from responsibility for his acts; and it may be laid down in general, that a partial unsoundness of mind will be no excuse. "It "is very difficult, indeed," as Lord Hale observes, "to "define the invisible line that divides perfect and partial "insanity; but it must be duly weighed and considered "both by the judge and jury, lest on the one side there be "a kind of inhumanity towards the defects of human "nature, or on the other side too great an indulgence "given to great crimes" (y). The line of distinction referred to by Hale, has never yet been fully traced. The judges, on a late occasion, however, gave it as their opinion (z), that if a man who takes another's life appears to (x) 3 Inst. 6. (y) Some of the principal cases of partial insanity, upon charges of murder or malicious shooting or wounding, are Arnold's case, 16 St. Tr. by Howell, 764; Lord Ferrers' case, 19 ibid. 947; Hadfield's case, Collinson on Lun. 480; Parker's case, ibid. 477; Bowler's case, ibid. 673; Bellingham's case, ib. Addend. 636; Offord's case, 5 C. & P. 168; Oxford's case, 9 C. & P. 533; R. v. Higginson, 1 C. & K. 129; and Macnaughten's case, 10 Cl. & Fin. 200. (z) This opinion was given in answer to certain questions propounded to the judges by the House of Lords, in reference to the discussion in that house occasioned by Macnaughten's case, in the year 1843. (See 10 Cl. & Fin. above cited.) On the same occasion the judges said, that the question that has been generally left to the jury in cases of this description is, whether the accused at the time of doing the act knew the difference between right and wrong; but that the more correct question is, whether he had a sufficient degree of reason to know that he was doing an act that was wrong. Unless the law, however, is to be considered as conclusively settled by this authority, it would seem to be a still more correct question whether he committed the act under the influence of any insane delusion, disguising from him its murderous character; for, if he did, then, (whether the delusion was upon matter of opinion or matter of fact,) it is difficult to assent to the doctrine have known at the time that he was acting contrary to law, his being under an insane delusion that he was thereby redressing some supposed grievance or producing some public benefit, will not exempt him from the guilt of murder; neither will he be exempted by being under an insane delusion as to facts; provided the supposed facts, if real, would not have justified the act; but that, on the other hand, he will be exempted by such delusion as last mentioned, where the facts, if real, would have justified the act. Again: [as to artificial, voluntarily contracted madness, by drunkenness or intoxication, which, depriving men of their reason, puts them in a temporary phrenzy,-our law looks upon this as an aggravation of the offence, rather than as an excuse for any criminal misbehaviour (a). “A "drunkard," says Sir Edward Coke, "who is voluntarius "dæmon, 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 "(b). 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 Montesquieu, "drinks through custom, founded upon constitutional 66 that a consciousness only that he was acting wrong, or contrary to law, would warrant convicting him for murder. At all events, it seems scarcely consistent with humanity, under such circumstances, to carry the capital sentence into effect. In Lord Erskine's celebrated speech in defence of Hadfield, the case is put of a lunatic destroying a man under the belief that he is a potter's vessel, and with the design of inflicting a VOL. IV. malicious injury on the property of a third person, whom he believes to be the owner of the vessel; and Lord Erskine argues, that it would be impossible, in such a case, to convict for murder. (As to Hadfield's case, see Collinson on Lunacy, p. 480.) (a) See Beverley's case, 4 Rep. 125; Reniger v. Fogossa, Plow. 19; R. v. Carroll, 7 C. & P. 145. (b) 1 Inst. 247. I ["necessity; a 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 "(c). And accordingly, in the warm climate of Greece, a law of Pittacus enacted, "that he 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 to commit it" (d). The Roman law, indeed, made great allowances for this vice: "per vinum delapsis capitalis pæna remittitur "(e). 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. II. Another 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 neutrality, 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 any accidental mischief happens to follow from the performance of any lawful act] with due caution (f), [the party stands excused from all guilt.] But if a man, by doing anything unlawful, (at least if it be malum in se, and not merely malum prohibitum,) or by doing anything lawful but without due caution,-produce a consequence which he did not foresee or intend, as the death of a man or the like, his want of foresight shall be no excuse, but he is criminally guilty of whatever consequence may follow. [Ignorance or mistake is another defect of will; when a man intending to do a lawful act, does that which is (c) Sp. L. b. 14, c. 10. (d) Puff. L. b. 8, c. 3. (e) Ff. 49, 16, 6. (f) 1 East, P. C. c. 5, s. 36. [unlawful. For here the deed and the will acting separately, there is not that conjunction between them which is necessary to form a criminal act. But this must be an ignorance or mistake in fact, and not an error in point of law. As if a man, intending to kill a thief or housebreaker in his own house, by mistake kills one of his family, this is no criminal action (g): but if a man thinks he has a right to kill a person excommunicated or outlawed, wherever he meets him, and does so, this is wilful murder. For a mistake in point of law which 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, neminem excusat" (h), is as well the maxim of our own law (i) as it was of the Roman (k).] III. A third kind of defect of will is, that arising from compulsion and inevitable necessity. [These are a 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 inflicted for the abuse of that free will which God hath 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. Of this nature, in the first place, is the obligation of civil subjection; 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 42. (g) Cro. Car. 538; 1 Hale, P. C. (h) See R. v. Bailey, R. & R. C. C. 1. (i) Plowd. 343; 1 Hale, P. C. 42. Thus, it has been held, that it is no defence for a foreigner charged with a crime committed in England, to [contrary to religion or sound morality. How far this excuse will be admitted in foro conscientiæ, or whether the inferior in this case is not bound to obey the Divine rather than the human law, it is not our business to decide; though the question, perhaps, 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 commands 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, though 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 (1), in some cases the command or authority of her husband, either express or implied, will privilege the wife from punishment, even for capital offences. And, therefore, if a woman commit theft, burglary or other civil offences against the laws of society, 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 we have found occasion to explain elsewhere in this work) as acting by compulsion and not of her own will (m): which doctrine is at least a thousand years old in this kingdom, being to be found among the laws of King Ina, the West Saxon (n). And it appears that among the northern nations on the Continent, this privilege extended to any (1) Hawk. P. C. b. 1, c. 1, s. 14; 1 Hale, P. C. 44, 516. (m) As to this doctrine, see also sup. vol. 11. p. 284, and, particularly, |