years have been convicted. "Thus," says Blackstone, "a girl of thirteen has been burnt for killing her mistress; and one boy of ten, and another of nine years old, who had killed their companions, have been sentenced to death, and he of ten years actually hanged; because it appeared upon their trials, that the one hid himself, and the other hid the body he had killed, which hiding manifested a consciousness of guilt, and a discretion to discern between good and evil. And there was an instance in the last century where a boy of eight years old was tried at Abington for firing two barns; and, it appearing that he had malice, revenge, and cunning, he was found guilty, condemned, and hanged accordingly. Thus also in very modern times, a boy of ten years old was convicted on his own confession of murdering his bedfellow, there appearing in his whole behavior plain tokens of a mischievous discretion; and, as the sparing of this boy merely on account of his tender years might be of dangerous consequence to the public by propagating a notion that children might commit such atrocious crimes with impunity, it was unanimously agreed by all the judges that he was a proper subject of capital punishment."1

§ 285 a. But the case of a very young child, capable still in law of committing crime by reason of age, should receive a careful attention by the jury, before conviction. A mere hiding of the body, a mere appearance of shrewdness, a mere general intelligence, may well exist in connection with mental faculties too immature to incur that legal guilt which the law attaches to mature wrong doing. And, although we may well suppose there are instances in which a child under fourteen should be punished by the tribunals as criminal, clearly the age of seven years, as the age of possible capacity, is quite too young for punishment to be given at the hand of the law; though it should be given at the hand of the parent, and the latter, rather than the former, be made to suffer the consequences of its neglect.

1 4 Bl. Com. 23, 24.

§ 286. There are some things which depend on the physical capacity; and thus, in matrimonial law, a boy under fourteen, or a girl under twelve, cannot contract a perfectly valid marriage. Even if puberty in fact commenced at an earlier period, the evidence of it will not be received.2 This legal principle, which conclusively denies the existence of puberty in a boy under fourteen, establishes also, that he cannot commit a rape, or the like offence of carnally abusing a girl under ten years of age, whatever be in fact his physical capabilities. The Ohio court, however, has rejected this doctrine; and laid down the rule, that the presumption of incapacity may, in cases of rape, be overcome by evidence.1 And some of the New York judges have adopted the Ohio rule.5

1 Bishop Mar. & Div. § 191, 194.

Bishop Mar. & Div. § 193.

Reg. v. Jordan, 9 Car. & P. 118; Reg. v. Brimilow, 9 Car. & P. 366, 2 Moody, 122; Reg. v. Phillips, 8 Car. & P. 736; Rex v. Eldershaw, 3 Car. & P. 396; Rex v. Groombridge, 7 Car. & P. 582; Commonwealth v. Green, 2 Pick. 380. And see The State v. Handy, 4 Harring. Del. 566.

4 Williams v. The State, 14 Ohio, 222.

5

People v. Randolph, 2 Parker, 174. See Vol. II. § 936.

[326]

CHAPTER XXII.

WANT OF MENTAL CAPACITY.

§ 287. A PERSON may have arrived at mature years, but from causes temporary or permanent, natural or supervening, be destitute of the capacity essential to the exercise of that criminal intent, without which, we have seen, no offence can exist. The real question in all cases is, -Was there the criminal intent?2 The party accused may reply, "No; for I was mentally incapable of entertaining it." This reply is termed a plea of insanity; the word insanity being understood in its larger sense, as including idiocy and lunacy, with all other kindred forms of mental infirmity.

§ 288. The law of insanity, simple as thus stated, is in many respects difficult and embarrassing when we attempt. more minutely to unfold it, or apply it to cases arising in practice. Let us first observe, that there are numerous shades or degrees of sanity and insanity, blending into one another, and separated by no distinct lines. And, since the law regards not small things, it follows that not every little cloud floating over an otherwise illumined understanding will ex

1 Ante, § 227.

2 "In order to constitute a crime, a person must have intelligence and capacity enough to have a criminal intent and purpose. And if his reason and mental powers are so deficient, that he has no will, no conscience or controlling mental power; or if, through the overwhelming violence of mental disease, his intellectual power is for the time obliterated; he is not a responsible moral agent, and is not punishable for criminal acts." Shaw, C. J., in Commonwealth v. Rogers, 7 Met. 500, 501.

* Ante, § 235, 259; post, § 320-324.

empt from criminal responsibility; nor, on the other hand, will every glimmering of reason over the dark waters of a troubled mind subject the unfortunate being to the heavy pains provided for wilful wrong doing. To relieve this difficulty, Lord Hale suggests: "The best measure that I can think of is this; such a person as, laboring under melancholy distempers, hath yet ordinarily as great understanding as ordinarily a child of fourteen years hath, is such a person as may be guilty of treason or felony." But if we admit, to the full extent, the accuracy of this test as an abstract proposition, we still derive from it little aid; because of the radically different workings of an insane, mature mind, and a sane, immature one.1

§ 289. Let us next observe, that, since in this as in every other legal inquiry we must be guided less by our own private reasonings than by the light which shines in the adjudications of the courts, we are embarrassed by the blending of good law with erroneous views concerning the facts of insanity, in a large proportion of the cases. In the ancient time, and even in comparatively modern years, the diseases and imperfections of the mind were little understood by the medical faculty, still less by the community at large,5 as indeed there yet remains much to be learned. Now, from these causes, the common law-the atmosphere of our political and social existence; elastic in form, unchanging in essence; to the dull mind ever varying, to the clear one ever the

1 Commonwealth v. Mosler, 4 Barr, 264; The State v. Stark, 1 Strob. 479; Lord Ferrer's case, 19 Howell St. Tr. 886, 947; Hadfield's case, 27 Howell St. Tr. 1281, 1286, 1287, 1312, 1323. 1 Russ. Crimes, Grea. Ed. 9, 13.

"A man may be mad on all subjects; and then, though he may have glimmerings of reason, he is not a responsible agent." Gibson, C. J., in Commonwealth v. Mosler, supra.

same is often so imperfectly developed in these adjudications, that the principles which are immutable are not in them easily distinguished from views of the facts of insanity, open to inquiry in each particular case. But if, in examining the decisions, we keep constantly in mind the necessity of separating these two things, we shall avoid much difficulty.

§ 290. To illustrate this frequent blending of good law and erroneous fact, we may mention the case of Edward Arnold, who was tried before Mr. Justice Tracy for malicious shooting at Lord Onslow. The learned judge observed to the jury, "that the fact for which the prisoner was indicted, was proved beyond all manner of contradiction; but whether the shooting was malicious depended upon the sanity of the man, whether the prisoner had the use of reason and sense. If he was under the visitation of God, and could not distinguish between good and evil, and did not know what he did, though he committed the greatest offence, yet he could not be guilty of any offence against any law whatever; for guilt arose from the mind, and the wicked will and intention of the man. If a man be deprived of his reason, and consequently of his intention, he could not be guilty; and, if that be the case, though he had actually killed Lord Onslow, he was exempted from punishment; punishment being intended for example, and to deter other persons from wicked designs; but the punishment of a madman, a person without design, can have no example. On the other side, it is not every frantic and idle humor of a man, that would exempt him from justice, and the punishment of the law." Thus far the statements of the learned judge are almost purely law, with little of any peculiar views concerning the facts of insanity. But he gives us a deeper and still deeper admixture of what would now be generally regarded erroneous notions of the nature of this disease, as he proceeds through the following periods; showing how a prisoner was convicted, whose insanity probably few at the present time seriously question. "It must," he said, "be a man that is totally deprived of his