Idiocy, or lu nacy-an excuse for crime, whether exist ing before the act done, or oc II. 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 (k)." In crinity is doubtful, minal cases therefore idiots and lunatics are not chargeable try it. A luna- for their own acts, if committed when under these incapacities: no, not even for treason itself (1) (2). curring after it. Where the question of sa the jury shall tic is answerable for acts done in lucid intervals. A lunatic, ac Also, if a man in his sound memory commits a capital offence, and, before on the ground arraignment for it, he becomes mad, he ought not to be quitted of felony of insanity, shall not be at large. (k) [The madman shall be punished only by his madness." So dreadful a calamity, as the loss of reason, is a sufficient punishment for any offence committed under the influence of madness.-ED.] (1) 3 Inst. 6. above the age of fourteen may be outlawed; but, if he be under that age, the proceedings cannot be supported. 2 Dyer, 104; 2 Hale, 207-8, Williams, J. Outlawry; Chitty's Burns, J. Process; though, in the latter case, the outlawry is not absolutely void, but must be reversed by writ of Error. 3 Dyer, 239; 2 Rol. Abr. 805; Williams, J. Outlawry. A commission of bankrupt, which is in its nature a criminal proceeding, (in some of the statutes a bankrupt is considered a criminal. Cobb v. Symonds, 5 B. & A. 516; 1 D. & R. 111,) cannot be supported against an infant. In Rex v. Cole, 1 Lord Ray. 443.; S. C. 12 Mod. 243; Holt, 360; 1 Trem. Entr. 1981, the defendant was indicted for that he, being a bankrupt, and brought before the commissioners, &c. refused to give an account of his effects, &c. The defence at the trial, upon Not Guilty pleaded, was, that he was an infant at the time of the debts being contracted, and therefore could not be a bankrupt. And of this opinion was Holt, C. J. For (by him) though the debts of an infant are only voidable by him at his election, yet no man can be a bankrupt for debts which he is not obliged to pay. And the defendant therefore was acquitted. And see ex-parte Sydebotham, 1 Atkins, 146; ex-parte Meymott, 1 Atkins, 197; ex-parte Moule, 14 Vesey, 603; ex-parte Adam, 1 Vesey & B. 494; Stevens v. Jackson, 4 Camp. 164. (2) A lunatic, it seems, may be a bankrupt, Anon. 13 Vesey, 590; provided, the act of bankruptcy be committed during a lucid interval, exparte Priddy, Cooke's B. L. 48; a proviso which does not appear very satisfactory; for, as the liability to the commission arises out of the capacity to contract debts, the proviso should, it is presumed, extend to the debts being contracted during lucid intervals, when the party has the capacity to contract; which a lunatic has not, at least, except for necessaries. Bagster v. Lord Portsmouth, 7 D. & R. 614; 5 B. & C. 170; 2 C. & P. 178. An idiot, or person born deaf and dumb, or any one who is non compos at the time, cannot be an approver. H. P. C. 282, s. 5, v. 2. But if he who wants discretion commit a trespass against the person or possession of another, he shall be compelled in a civil action to give satisfaction for the damage. Id. v. 1 & 3, s. 5; 3 Bac. Abr. 131. So he who invites a madman to commit murder, or other crime, arraigned for it; because 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 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 (m) (3). Indeed, in the bloody reign of Henry the Eighth, a statute was made (n), which enacted, that if 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 Ph. and M. c. 10. For, as (m) 1 Hal. P. C. 34. (n) 33 Hen. VIII. c. 20. [*25 ] is a principal offender, and as much punishable as if he had done it himself. Id. 4, s. 7; 1 Hale, 647. The question of insanity in a prisoner is a question for the jury, and ought to be clearly made out, in order to exempt the party from punishment. Rex v. Arnold, 1 Russ. 9. To justify the acquittal of a prisoner indicted for murder, on the ground of insanity, the jury must be satisfied that he was incapable of judging between right and wrong; and that, at the time of committing the act, he did not consider that it was an offence against the laws of God and nature. Rex v. Offord, 5 C. & P. 168. If, on a trial, the defence is 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. Rex v. Wright, R. & R. C. C. 456. But query, whether he can be asked whether, from other testimony given, the act with which the prisoner is charged is, in his opinion, an act of insanity; which is the very point to be Where a prisoner's defence is in- (3) The 39 & 40 Geo. III. c. 94, is observed by Sir Edward Coke (o), "the execution of an offender is for example, ut pœna ad paucos, metus ad omnes perveniat (p); 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 no example to others." But if there be any doubt, whether the party be compos or not, this shall be tried by a 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 action 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 (q). Yet, in the case of absolute madmen, as they are not answerable for their actions, they should not be permitted 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 ancient law, that persons deprived of their reason might be confined till they recovered their senses (r), without waiting for the forms of a commission or other special authority from the crown and now, by the vagrant acts (s), a method is chalked out for imprisoning, chaining, and sending them to their proper homes (4). (0) 3 Inst. 6. (p) [That few may be punished, and that a fear of punishment may operate on all.-ED.] (9) 1 Hal. P. C. 31. (r) Bro. Abr. tit. corone. 101. (4) The care and treatment of insane persons in England is now regulated by st. 2 & 3 W. 4, c. 107, which came into operation on the 11th August, 1832, to continue in force for three years, and from thence until the end of the then next session of parliament. Sec. 2. Contains general rules for the interpretation of certain words used in and for construing the act. By sec. 3. Commissioners are to be appointed on the 1st September in every year, with jurisdiction within the cities of London and Westminster, and within seven miles thereof, and within the county of Middlesex, to grant li censes to keep houses for the reception of two or more insane persons. By secs. 10 & 11. In all other parts of England justices of the peace, in general or quarter sessions assembled, shall have the like authority for granting such licenses in their respective counties; and shall, at the Michaelmas general quarter sessions, appoint three or more justices, and one or more physician, surgeon, or apothecary, as visitors for each house. By sec. 15. Fourteen clear days' notice shall be given of intention to apply for a license, and shall be accompanied by a plan of the house on a scale of not being itself a III. Thirdly; as to artificial, voluntarily contracted mad-Intoxication, ness, by drunkenness or intoxication, which, depriving men crime, is not an less than one-eighth of an inch to a foot, with a description of the situation, length, breadth, and height of, and a reference by a figure or letter to every room, and of the greatest number of patients to be received; and, by sec. 16, detached buildings belonging or in anywise appertaining to the house shall be considered part thereof. By sec. 17. Notice of any additions or alterations shall be given to the clerk of the commissioners or of the peace, as the case may be, within one calendar month after the completion thereof, with such plan as aforesaid; "and if any person shall (wilfully and with intention to deceive) not give a full and complete plan of the whole house to be licensed, or notice of any and all such additions and alterations as shall have been made, he shall be deemed guilty of a misdemeanor." By sec. 22, all plans heretofore delivered shall be deemed sufficient, if the commissioners or justices shall so think. By the same section, "it shall not be lawful for any person to keep a house for the reception of two or more insane persons, unless the same shall have been first duly licensed in the manner directed by this act; and every person keeping a house for the reception of two or more insane persons, not duly licensed, shall be deemed guilty of a misdemeanor." Sec. 27 enacts, "That no person (not being a parish pauper) shall be received into any house licensed for the reception of insane persons in that part of the united kingdom called England, without an order under the hand of the person by whose direction such insane person is sent, which order shall be according to the form in Schedule (B.) annexed to this act; and in it shall be stated the christian and surname, and place of abode, and the degree of relationship or other circumstance of con nection between such person and the insane person, and the true name, age, place of residence, former occupation, and the asylum or other place (if any) in which the insane person shall have been previously confined, and whether such person shall have been found lunatic or of unsound mind under a commission issued for that purpose by the Lord Chancellor or other the person or persons intrusted as aforesaid; nor shall any such person be received into any such house without a medical certificate of two physicians, surgeons, or apothecaries, in the manner directed by this act; and if any person shall knowingly and wilfully receive any insane person, or person represented or alleged to be insane, to be taken care of or confined in any house licensed under this act, without such order and medical certificate, and without making, within three clear days after the reception of such patient, a minute or entry in writing, in a book to be kept for that purpose, according to the form in Schedule (M.) annexed to this act, of the true name of the patient, and also the christian and surname, occupation, and place of abode of the person by whom such patient shall be brought, every person so offending shall be deemed guilty of a misdemeanor." Sec. 28 enacts, "That every medical certificate upon which any order shall be given for the confinement of any person (not a parish pauper), in a house licensed under this act, shall be according to the form in Schedule (C.) annexed to this act, and shall be signed by two medical practitioners, not being in partnership, and each of them being a physician, surgeon, or apothecary, who shall have separately visited and personally examined the patient to whom it relates not more than seven clear days previous to such confinement, and such certificate shall be excuse, but an aggravation of crime. [*26 ] of their reason, puts them in a temporary phrenzy; our law looks upon this as an aggravation of the offence, rather than signed and dated on the day on which he or she shall have been so examined, and shall state that such person is insane and proper to be confined; and every such certificate for the confinement of any person in a house licensed under this act shall, if the same be not signed by two medical practitioners, state the special circumstance which shall have prevented the patient being visited by two medical practitioners; and any patient may under such special circumstance be admitted into any such house upon the certificate of one medical practitioner, provided such certificate shall be further signed by some other medical practitioner within seven days next after the admission of such patient into any such house as aforesaid; and any person who shall, knowingly and with intention to deceive, sign any such medical certificate untruly setting forth any of the particulars required by this act, shall be deemed guilty of a misdemeanor: Provided always, That no physician, surgeon, or apothecary shall sign any certificate of admission of a patient to any licensed house who is wholly or partly the proprietor or the regular professional attendant of such licensed house, nor shall any physician, surgeon, or apothecary sign any certificate for the reception of a patient into any such house, of which his father, son, brother, or partner is wholly or in part proprietor or the regular professional attendant, on pain of being deemed guilty of a misdemeanor." Sec. 29 enacts, "That no parish pauper shall be received into any house licensed for the reception of insane persons without an order according to the form in Schedule (D.) annexed to this act, under the hand and seal of one justice of the peace, or an order according to the form in Schedule (E.) annexed to this act, signed by the off ciating clergyman and one of the overseers of the poor of the parish to which such pauper shall belong, and also a medical certificate according to the form in Schedule (F.) annexed to this act, signed by one physician, surgeon, or apothecary, that such parish pauper is insane, and a proper person to be confined; and if any person shall knowingly and wilfully receive any parish pauper represented or alleged to be insane into any licensed house, without such order and medical certificate, every person so offending shall be deemed guilty of a misdemeanor." Sec. 31 enacts, "That whenever any patient confined in any house licensed for the reception of insane persons shall be removed therefrom, or shall die, the proprietor or resident superintendant of such house shall, within two clear days next after such removal or death, transmit a written notice thereof to the clerk of the metropolitan commissioners or clerk of the peace, according to the form in Schedule (H.) annexed to this act; and in cases of removal such notice shall state by whom removed, and in what state of mind such person shall have been when removed, and (if within his knowledge) to what place removed; which notices shall in like manner be preserved and entered by the clerk of the commissioners or clerk of the peace as is required in the case of the notice of the admission of any patient into such licensed house; and every proprietor or resident superintendant of any such house, who shall knowingly and wilfully neglect so to do, shall be deemed guilty of a misdemeanor." By sec. 35, houses are to be inspected by the commissioners four times in the year at least. And by sec. 36, the visitors appointed at the quarter sessions shall visit houses three times a year at least; and upon this |