infant is privileged, by reason of his non-age, if under twentyone; for instance, if the offence charged by the indictment be a mere non-feasance (unless it be such a thing as he is bound to do by reason of his tenure, or the like, as to repair a bridge, &c.) then in some cases he shall be privileged, if under twenty-one, because laches shall not be imputed to him; but if he be indicted of any notorious breach of the peace, as riot, battery, or the like, he is equally liable as a person of full age; because, upon his trial, the Court, ex officio, ought to consider whether he was doli capax, and had discretion to do the act with which he is charged. 1 Hale, 20, 21. 4 Bl. Com. 22. 3 Bac. Abr. Infancy, (H).

Persons non compotes mentis]—Every person at the age of discretion is, unless the contrary be proved, presumed by law to be sane, and to be accountable for his actions. But if there be an incapacity, or defect of the understanding, as there can be no consent of the will, so the act cannot be culpable. This species of non-volition is either natural, accidental, or affected; it is either perpetual or temporary, and may be reduced to three general heads: 1. Dementia naturalis; 2. Dementia accidentalis; 3. Dementia affectata.

1. Of the first, or dementia naturalis, is idiotcy or natural fatuity. An idiot is one who is of non-sane memory from his birth, by a perpetual infirmity, without lucid intervals; Co. Lit. 247; and those are said to be idiots who cannot number twenty, tell the days of the week, who do not know their fathers or mothers, or the like; but these instances are mentioned as tests of sanity only, and are not always conclusive; and although idiotcy or natural fatuity is in general sufficiently apparent, the question, whether idiot or not, is a question of fact triabie by the jury. Bac. Abr. Idiot, (A). Bro. Idiot, 4. One deaf and dumb from his birth, who has no means of learning to discriminate between right and wrong, or of understanding the penal enactments of the law, as applicable to particular offences, is by presumption of law an idiot; but if it can be shewn that he has the use of understanding, which many of that condition discover by signs, then he may be tried, and suffer judgment and execution, although great caution should be observed in such proceedings. 1 Hale, 34. See R. v. Jones, 1 Leach, 102. R. v. Steel, Id. 451.

2. Adventitious insanity, or dementia accidentalis, proceeds from various causes, and is of several kinds or degrees: it is either partial, (an insanity upon some one subject, the party being sane upon all others), or total; permanent, (usually called madness), or temporary, (the object of it being afflicted with his disorder at certain periods and vicissitudes only, with lucid intervals), which is usually denominated lunacy.

3. The vice of drunkenness, which produces a perfect, though temporary frenzy or insanity, usually denominated dementia affectata, or acquired madness, will not excuse the commission of any crime; and an offender under the influence of intoxication, can derive no privilege from a madness voluntarily contracted, but is answerable to the law equally as if he had been in the full possession of his faculties at the time. 1 Hale, 32. Co. Lit. 247. 1 Hawk. c. 1, s. 6. But if the primary cause of the frenzy be involuntary, or habitual and confirmed, this species of insanity will excuse the offender equally as the former descriptions of this malady. Thus, for instance, if a man, through the unskilfulness of his physician, or the contrivance of his enemies, take that which produces a temporary frenzy, he will not, whilst under the influence of the frenzy, be accountable for his actions. So neither will he be liable to be punished for any crime perpetrated under the influence of insanity which is habitual and fixed, though caused by frequent intoxication, and originally contracted by his own act. 1 Hale, 32.

We come now to consider the effect of these different kinds of insanity. Where the deprivation of the understanding and memory is total, fixed, and permanent, it excuses all acts; so, likewise, a man labouring under adventitious insanity is, during the frenzy, entitled to the same indulgence, in the same degree, with one whose disorder is fixed and permanent. Beverley's case, 4 Co. 125, Co. Lit. 247, 1 Hale, 31. But the difficulty in these cases is, to distinguish between a total aberration of intellect and a partial or temporary delusion merely, notwithstanding which the patient may be capable of discerning right from wrong; in which case he will be guilty in the eye of the law, and amenable to punishment. Partial insanity, says Lord Hale, is the condition of many, especially of melancholy persons, who generally discover their defects in excessive fear and grief, and yet are not wholly destitute of the use of reason, and this partial insanity seems not to excuse them in the commission of any crime. 1 Hale, 30. Doubtless, he adds, most persons that are felons of themselves, and others, are under a degree of partial insanity when they commit these offences: it is very difficult to define the invisible line that divides perfect from partial insanity; but it must rest upon circumstances duly to be weighed and considered both by the judge and the 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. He concludes, by suggesting as the best measure, that such a person as, labouring under melancholy distempers, hath yet ordinarily as great understanding as ordinarily a child of fourteen years hath, is such a person as can be guilty of treason and felony. 1 Hale, 30, 412. Upon this subject many cases have been decided, from which it is difficult to

extract any precise definite rule. See R. v. Ld. Ferrers, 19 St. Tr. 947. R. v. Arnold, 16 Id. 764. R. v. Parker, Coll. 477. R. v. Bowler, Id. 673. R. v. Bellingham, Id. 636, add. R. v. Hadfield, Id. 480. It seems clear, however, that, to excuse a man from punishment upon the ground of insanity, it must be proved distinctly that he was incapable of distinguishing right from wrong at the time he did the act, and did not know it to be an offence against the laws of God and nature. If there be a partial degree of reason, a competent use of it sufficient to have restrained those passions which produced the crime; if there be thought and design, a faculty to distinguish the nature of actions, to discern the difference between moral good and evil-then, he will be responsible for his actions. 1 Russ. 12. Whether the prisoner were sane or insane at the time the act was committed, is a question of fact triable by the jury, and dependent upon the previous and contemporaneous acts of the party. Upon a question of insanity, a witness of medical skill may be asked whether such and such appearances proved by other witnesses are, in his judgment, symptoms of insanity: but it is very doubtful whether he can be asked, if, from the testimony given, the act with which the prisoner is charged is, in his opinion, an act of insanity; for that is the point to be decided by the jury. R. v. Wright, R. & R. 456.

It may be useful to observe, that, if upon the trial of any person for treason, murder, or felony, (see R. v. Little, R. & R. 430), his insanity at the time of the commission of the offence is given in evidence, and the jury acquit him, the jury must be required to find specially whether he was insane at the time of the commission of the offence, and declare whether he was acquitted on account of such insanity; and if the jury find that he was insane at the time of the commission of the offence, the court before whom the trial takes place must order him to be kept in strict custody, in such manner as to the court shall seem fit, until the King's pleasure be known; and the King may order the confinement of such person during pleasure. 39 & 40 G. 3, c. 94, s. 1. And if any person indicted for any offence is insane, and upon arraignment is found so to be by a jury lawfully impanneled for that purpose, (that is, by a jury returned by the sheriff instanter, in the nature of an inquest of office), so that he cannot be tried upon such indictment; or if, upon the trial of any person so indicted, he appear to the jury charged in the indictment to be insane, the court may order that finding to be recorded, and order him to be kept in custody till his Majesty's pleasure is known; so, likewise, if any person charged with any offence be brought up to be discharged for want of prosecution, and appear to be insane, the court may order a jury to be impanneled to try the sanity of such person, and, if the jury find him to be insane, may order him to be kept in strict custody in

like manner, until his Majesty's pleasure be known. 39 & 40 G. 3, c. 94, s. 2. And any person under sentence of imprisonment or transportation, who may become insane, may be removed to the county asylum or other receptacle for insane persons, by order of the Secretary of State, upon a certificate of two surgeons or physicians, there to remain until it shall be certified to the Secretary of State that such person has become of sound mind, whereupon he may be discharged by order of the Secretary of State, or removed to the prison if still liable to be continued in custody. 9 Geo. 4, c. 40, s. 55.

Persons in subjection to the power of others]-The same sound principle which excuses those who have no mental will in the perpetration of an offence, protects from the punishment of the law those who commit crimes in subjection to the power of others, and not as the result of an uncontrolled free action proceeding from themselves. 4 Bl. Com. 27. 1 Hale, 43. Thus, if A., by force, take the hand of B., in which is a weapon, and therewith kill C., A. is guilty of murder, but B. is excused; but if merely a moral force be used, as threats, duress of imprisonment, or even an assault to the peril of his life, in order to compel him to kill C., it is no legal excuse. 1 Hale, 434. 1 East's P. C. 225. This protection also exists in the public and private relations of society; public, as between subject and prince, obedience to existing laws being a sufficient extenuation of civil guilt before a municipal tribunal; and private, proceeding from the matrimonial subjection of the wife to the husband, from which the law presumes a coercion, which in many cases excuses the wife from the consequence of criminal misconduct. The private relations which exist between parent and child, and master and servant, will not, however, excuse or extenuate the commission of any crime of whatever denomination; for the command is void in law, and can protect neither the commander nor the instrument. 1 Hale, 44, 516.

In general, if a felony be committed by a feme covert in the presence of her husband, the law presumes that she acted under his immediate coercion, and excuses her from punishment; 1 Hale, 45, 516. 1 Hawk. c. 1, s. 9; but if in the absence of her husband she commit an offence, even by his order or procurement, her coverture will be no excuse. R. v. Morris, R. & R. 27. 1 Hawk. c. 1, s. 11. This presumption, however, may be rebutted by evidence, and if it appear that the wife was principally instrumental in the commission of the crime, acting voluntarily, and not by constraint of her husband, although he was present and concerned, she will be guilty and liable to punishment; 1 Hale, 516; but where husband and wife were convicted jointly of receiving stolen goods, it was holden that the conviction of the wife could not be supported, though she had been more ac

tive than her husband, because it had not been left to the jury to say whether she received the goods in the absence of her husband. R. v. Archer, R. & M. 143. This protection is not allowed in crimes which are mala in se, and prohibited by the law of nature, nor in such as are heinous in their character, or dangerous in their consequences; and therefore, if a married woman be guilty of treason, murder, or homicide, in company with and by coercion of her husband, she is punishable equally as if she were sole. 1 Hale, 45, 47, 48. 1 Hawk. c. 1, s. 11. 4 Bl. Com. 29. 1 St. Tr. 28. So, a married woman may be indicted jointly with her husband for keeping a bawdy-house, R. v. Williams, 10 Mod. 63, 1 Salk. 384, or gaming-house; R. v. Dixon, 10 Mod. 335; for these are offences as to the government of the house, in which the wife has a principal share. 1 Hawk. c. 1, s. 12. And, according to the prevailing opinion, it seems, that the wife may be found guilty with the husband in all misdemeanors. See R. v. Ingram, 1 Salk. 384, 4 Bl. Com. by Ryland, 29, n. (10). But husband and wife cannot alone be found guilty of a conspiracy, for they are considered in law as one person, and are presumed to have but one will. 1 Hawk. c. 72, s. 8.

If a married woman incite her husband to the commission of a felony she is an accessary before the fact; 1 Hale, 516. 2 Hawk. c. 29, s. 34; but she cannot be treated as an accessary for receiving her husband, knowing that he has committed a felony; 1 Hale, 47; nor for concealing a felon jointly with her husband. Id. 1 Hawk. c. 1, s. 10. And she will not be answerable for her husband's breach of duty, however fatal, though she be privy to his misconduct, if no duty be cast upon her and she be merely passive. R. v. Squires, 1 Russ. 16.

If a married woman, indicted jointly with her husband, be described in the indictment as his wife, she need not prove her marriage, but will be entitled to protection if it appear that she acted under his coercion; but the mere description will be no ground for dismissing the indictment as to the wife, for the indictment is joint and several, according to the facts as they may appear. 1 Hale, 46. If she be described as a single woman, she must prove her marriage; R. v. Jones, Kel. 37; which she may do by evidence of cohabitation and reputation; and it is not necesthat the actual marriage should be proved. R. v. Atkinson, 1 Russ. 20. R. v. Hassall, 2 C. & P. 434.

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Ignorance]-Ignorance of the law will not excuse from the consequences of guilt any person who has capacity to understand the law, of which all are presumed to have knowledge. 1 Hale, 42. But this rule supposes an opportunity of knowing the law. Where, therefore, a defendant was indicted for maliciously shooting at A. B. upon the high seas, and the offence was perpetrated within a few weeks after the stat. 39 G. 3, c. 37, passed, and be