submit our opinion to be, that the jury ought to be told in all cases, that every man is presumed to be sane and to possess a sufficient degree of reason, to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved, that at the time of committing the act, the party accused was labouring under such a defect of reason from discase of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know that he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused at the time of doing the act, knew the difference between right and wrong; which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put generally and in the abstract, as when put with reference to the party's knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law was essential in order to lead to a conviction; whereas the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused were conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course, therefore, has been to leave the question to the Jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong; and this course we think is correct, accompanied with such observations and explanations as the circumstances of each particular case may require. The answer to the fourth question must, of course, depend on the nature of the delusion; but, making the same assumption as we did before, namely, that he labours under such a partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsi bility, as if the facts with respect to which the delusion exists were real. For example, if under the influence of delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self defence, he would be exempt from punishment. If his delusion was, that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed in. jury, he would be liable to punishment. In answer to the last question, we state to your Lordships, that we think the medical man, under the circumstances supposed, cannot, in strictness, be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed, on which it is for the jury to decide; and the questions are not mere questions upon a matter of science, in which case, such evidence is admissible. But where the facts are admitted, or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right." Per Tindal, C. J. delivering the opinion of the Judges in McNaughten's Case, 10 Cl. & Fin. 200. 208. Maule, J., diss. p. 204-208. See also Hansard's Parl. Debates, Vol. 67. pp. 288. 714.

In a late case, (Commonwealth v. Mosler,) before the Supreme Court of Pennsylvania, the defence of insanity was set up on an indictment for murder, and discussed at great length. Chief Justice Gibson, in delivering the charge to the jury, said:

Insanity is mental or moral—the latter being sometimes called homicidal mania, and properly so. It is my purpose to deliver to you the law on this ground of defence, and not to press upon your consideration, at least to an unusual degree, the circumstances of the present case, on which the law acts. A man may be mad on all subjects; and then, though he may have glimmerings of reason, he is not a responsible agent. This is general insanity; but, if it be not so great in its extent or degree as to blind him to the nature and consequences of his moral duty, it is no defence to an accusation of crime. It must be so great as entirely to destroy his perception of right and wrong; and it is not until that perception is thus destroyed, that he ceases to be responsible. It must amount to delusion or hallucination, controlling his will and making the commission of the act, in his apprehension, a duty of overruling necessity. The most apt illustration of the latter is the perverted sense of religious obligation, which has caused men sometimes to sacrifice their wives and children.

"Partial insanity is confined to a particular subject-the man being sane on every other. In that species of madness, it is plain that he is a responsible agent, if he were not instigated by his madness to perpetrate the act. He continues to be a legitimate subject of punishment, although he may have been laboring under a moral obliquity of

perception, as much so as if he were merely laboring under an obliquity of vision. A man whose mind squints, unless impelled to crime by this very mental obliquity, is as much amenable to punishment as one whose eye squints. On this point, there has been a mistake as melancholy as it is popular. It has been announced by learned doctors, that, if a man has the least taint of insanity entering into his mental structure, it discharges him of all responsibility to the laws. To this monstrous error may be traced both the fecundity in homicides which has dishonored this country, and the immunity which has attended them. The law is that, whether the insanity be general or partial, the degree of it must be so great as to have controlled the will of its subject, and to have taken from him the freedom of moral action.

"But there is a moral or homicidal insanity consisting of an irresistible inclination to kill, or to commit some other particular offence. There may be an unseen ligament pressing on the mind, drawing it to consequences which it sees, but cannot avoid, and placing it under a coercion which, while its results are clearly perceived, is incapable of resistance. The doctrine which acknowledges this mania is dangerous in its relations, and can be recognized only in the clearest cases. It ought to be shown to have been habitual, or at least to have evinced itself in more than a single instance. It is seldom directed against a particular individual; but that it may be so, is proved by the case of the young woman who was deluded by an irresistible impulse to destroy her child, though aware of the heinous nature of the act. The frequency of this constitutional malady is fortunately small, and it is better to confine it within the strictest limits. If juries were to allow it as a general motive operating in cases of this character, its recognition would destroy social order as well as personal safety. To establish it as a justification in any particular case, it is necessary either to show, by clear proofs, its contemporaneous existence, evinced by present circumstances, or the existence of an habitual tendency developed in previous cases, becoming in itself a second nature."

The jury convicted the prisoner, and the Court was unanimous in refusing a new trial. Com. v. Mosler, 6 Penn. L. J. 93, 4 Barr. Rep.

The leading works upon the medical jurisprudence of insanity, are Esquirol on In. sanity; Marc de la Folie; Ray on Insanity; Winslow on the Plea af Insanity; Collinson on Lunacy; Shelford on Lunacy. Taylor's Med. Jur. (London, 1844.) The inquirer will find an article on the value and effect of medical testimony in The British and Foreign Med. Review for July, 1843. In Roger's Trial, (Boston, 1844,) reported by Messrs. Bigelow & Bemis, counsel for the defendant, will be found all the leading autho rities, both the text books and the adjudged cases, many of them learnedly and thoroughly examined.

CHAPTER V.

CONCERNING CASUALTY AND MISFORTUNE, HOW FAR IT EXCUSETH IN CRIMINALS.

I COME to the second kind of accidental defects, viz. casualty and misfortune, and to consider how far it excuseth: and [38] first we are to observe in this, and likewise in some other

of the defects before and hereafter mentioned, a difference between civil suits, that are terminated in compensationem damni illati, and criminal suits or prosecutions, that are in vindictam criminis commissi.

If a man be shooting in the fields at rovers, and his arrow hurts a person standing near the mark, the party hurt shall have his action of trespass, and recover his damages, though the hurt were cas

VOL. I.-6

ual; (a) for the party is damnified by him, and the damages are but his reparation; but if the party had been killed, it had been per infortunium, and the archer should not suffer death for it, though yet he goes not altogether free from all punishment.(b) 6 E. 4. 7. per Catesby.(c)

As to criminal proceedings, if the act that is committed be simply casual, and per infortunium, regularly that act, which, were it done ex animi intentione, were punishable with death, is not by the laws of England to undergo that punishment; for it is the will and intention, that regularly is required, as well as the act and event, to make the offence capital.

Now, what shall be said thus simply casual, and what the [39] punishment, will be at large considered, when we come to homicide per infortunium; only something will be necessary to be said thereof here.

If a man do ex intentione and voluntarily an unlawful act tending to bodily hurt of any person, as by striking or beating him, though he did not intend to kill him, but the death of the party struck doth follow thereby within the year and day;(d) or if he strike at one, and missing him kills another whom he did not intend, this is felony(e) and homicide, and not casualty or per infortunium.

So it is if he be doing an unlawful act, though not intending bodily harm of any person, as throwing a stone at another's horse, if it hit a person and kill him; this is felony and homicide and not per infortunium;(f) for the act was voluntary, though the event not intended; and therefore the act itself being unlawful, he is criminally guilty of the consequence, that follows:

But if a man be doing a lawful act without intention of any bodily harm to any person, and the death of any person thereby ensues, as if he be cleaving wood, and the axe flies from the helve, and kills another, this indeed is manslaughter, but per infortunium; and the party is not to suffer death, but is to be pardoned of course; for it appears by the statute of Marlbridge, cap. 26. that it was not done

(a) Hob. 134.

(b) For he forfeits all his goods and chattels. 2 H. 3. 18. F. Corone. 302. 2 Co. Instit, 149. 3 Co. Instit. 220. By the ancient law he was liable to make the same recompense or weregild, as in any other case of homicide; e. g. if one shooting at a mark should accidentally wound and kill another, he was nevertheless to pay his weregild. Leg. H. 2. l. 88. 1. 90. Legis enim est placitum, qui inscientèr peccat, scientèr emendet; but by the same law, if one, who was standing on a tree or any other place, where he was at work, should chance to fall on another passing by, he was not to pay any thing, but was deemed entirely innocent. See Wilk. Leg. Anglo-Sax. p. 277, 279.

(c) B. Corone 148. Trespass 310. F. Corone 354.

(d) The reason of this is, because the law doth presume, that after the year and day it cannot then be discerned, whether he died of the stroke, or a natural death. 3 Co. Instit. 53.

(e) The like in the case of maihem, if a man strike at one, and missing him maihem another, 13 H. 7, 14. a.

(f) 11 H. 7. 23. a. per Fineux Ch. Just. B. Corone 229. Proclamation 13. 22. Assise pl. 71.

per felonium; (g) yet the laws of England are so tender of the life of man, and to make men very cautious in all their [ 40 ] actions that the party, though his life be spared, yet forfeits his goods, and must expect the king's grace to restore them.

There happened this case at Peterborough: Deer broke into the corn of A. and spoiled it in the night time; A. sets his servant to watch in the night with a charged gun at the corner of the field, commanding him, that, when he heard anything rush into the standing corn, he should shoot at that place, for it was the deer: the master was in another corner of the field, rushed into the standing corn; the servant according to his master's direction shot, and killed his master; it was agreed on all hands, this was neither petit treason, nor murder, but whether it were simple homicide, or per infortunium, was a great difficulty: First, the shooting was lawful, when the deer came into the corn, it being no purlieu, nor proclaimed, or chased deer; again, the error of the servant was caused by the master's direction, and his own act; but if it had been a stranger that had been killed it had been homicide, and not misadventure; on the other side, the servant was to have taken more care, and not to have shot upon such a token as might have befallen a man as well as a deer; and therefore for the omission of due diligence, and better inspection, before he adventured to shoot, it might amount to manslaughter, and so be capital; and this seems to be the truer opinion.

But in the case of Sir William Hawksworth, related by Baker in his chronicle of the time of Edward IV. p. 223,(h) he being weary of his life, and willing to be rid of it by another's hand, blamed his parker for suffering his deer to be destroyed, and commanded him, that he should shoot the next man that he met in his park, that would not stand or speak; the knight himself came in the night into the park, and being met by the keeper refused to stand or speak; the keeper shot and killed him, not knowing him to be his master; this seems to be no felony, but excusable by the statute of Malefactores in parcis, for the keeper was in no fault, but his [ 41 ] master; but, had he known him, it had been murder.

As to matter of high treason, where the life of the king is concerned, it is not safe too easily to admit an excuse by chance or misfortune; though such fact cannot be treason, that was purely casual and involuntary, for there must be a compassing or imagining to make

(g) Here our author rightly says it appears by the statute of Marlbridge, that it was not felony, for that statute only supposes it not to be felony, but does not make that not to be felony which was so before, as some have imagined. 2. Co. Instit. 148, 315. for it appears by Magna Charta cap. 26. which was before the statute of Marlbridge, that he who killed another per infortunium, was in no danger of death. Kel. 123. nor indeed could it be felony, it not being done felleo animo, 4 Co. 134 b. The design of that statute was quite of another nature, viz. that the country should not be amerced where a man was killed per infortunium, for at that time murdrum peculiarly signified the secret private killing of a man; as if he was found killed, but it was not known by whom; and thus it is defined by Bracton, Lib. III. de corona, cap. 1 to be occulta occisio; and in the Jaws of Henry 1. l. 92. murdritus homo dicebater, cujus interfectio nesciebatur; and in Dialogo de Scaccario, Lib. I. cap. 10. 10. murdrum idem est, quod absconditum. (h) Sub anno 1471.

treason; yet a treasonable intention may be disguised under the color of chance, and the safety of the king's life is of highest concernment. And therefore when Walter Tyrrel, with a glance of an arrow from a tree involuntarily, as Matthew Paris(k) tells us, killed William Rufus, it could not be treason,(/) because there was no purpose of any mischief, and he shot at the deer by the king's command; yet the fact was of such a consequence, that he fled for it, which was a circumstance that might probably infer, that there was some illintention, which might make him guilty of treason, and not barely accident. Co. P. C. p. 6.

History tells us, that upon a solemn just, or turnament appointed by Henry II. king of France, upon the marriage of his daughter, the king himself would needs run, and commanded the earl of Montgomery to run against him; the earl's lance breaking upon the king's cuirasse, a splinter flew into the king's eye, and hit it, whereof he died; this was not treason, because purely accidental.[1]

CONCERNING IGNORANCE, AND HOW FAR IT PREVAILS, TO EXCUSE IN CAPITAL CRIMES.

IGNORANCE of the municipal law of the kingdom, or of the penalty thereby inflicted upon offenders, doth not excuse any, that is of the age of discretion and compos mentis, from the penalty of the breach (k) p. 54. (1) Custumier de Normand. cap. 14.

[1] Whenever death is the consequence of idle, dangerous and unlawful sports, or of heedless, wanton and indiscreet acts, without a felonious intent the party causing the death is guilty of manslaughter. As if a man rides an unruly horse amongst a crowd of people, 1 East, P. C. 231; or throws a stone, or shoots an arrow over a wall into a public or frequented street, post puge 475, or discharging his pistols into a public street upon alighting from his carriage, 1 Stra. 481: in any of these cases, though the party may be perfectly innocent of any mischievous intent, still if death ensues he is guilty of manslaughter. So, if the owner suffers to be at large any animal which he knows to be vi. cious and mischievous, and it kills a man, it has been thought by some that he may be indicted for manslaughter; but it is well agreed that he is guilty of a high misdemeanor. 2 Hawk. P. C. c. 13, § 8; and in a very recent case of that kind, BEST, C. J. laid down as law, "that if a person think proper to keep an animal of this description, (a bull) knowing its vicious nature, and another person is killed by it, it will be manslaughter in the owner, if nothing more; at all events it will be an aggravated species of manslaughter: Black man v. Simmonds, 3 Carr. & Pay. 140. If workmen in the ordinary course of their business, throw rubbish from a house in a direction in which persons are likely to pass, and any one passing is killed, this is manslaughter: Ward's case, 1 East P. C. 261, 262, 263, 270; Rex v. Murphy, 6 Carr. & Pay. 103. As to what are lawful sports, see Pulton, title Riot, 4 Steph. Commentaries 101, 4 Bl. Com. 183, note by Ryland, 19 ed. Lond. 1836. The cases in which the propriety of the act which causes the injury, the man. ner of doing it, or the circumstances under which it is done, are considered, may be found 1 Hawk c. 29 s. 3; Foster 262; Rex v. Martin, 3 C. & P. 211; Hull's case 1664, Kel. 40; 1 Russell 769; Rex v. Walker, 1 C. & P. 320; Rex v. Gree, 7 C. & P. 156; R. v. Allen et al. 7 C. & P. 153; 4 Inst. 251; Rex v. Van Butchell, 3 C. & P. 629; Rex v. Williamson, 3 C. & P. 635; Rex v. Spiller, 5 C. & P. 333; see post. c. 39 notes.