Encyclopaedia Americana: a popular dictionary of arts, sciences, literature, history, politics and biography, brought down to the present time : including a copious collection of original articles in American biography : on the basis of the seventh edition of the German Conversations-Lexicon (Volume 4).
- Date:
- 1830-33
Licence: Public Domain Mark
Credit: Encyclopaedia Americana: a popular dictionary of arts, sciences, literature, history, politics and biography, brought down to the present time : including a copious collection of original articles in American biography : on the basis of the seventh edition of the German Conversations-Lexicon (Volume 4). Source: Wellcome Collection.
Provider: This material has been provided by the National Library of Medicine (U.S.), through the Medical Heritage Library. The original may be consulted at the National Library of Medicine (U.S.)
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![may bb removed by facts establishing a clear sense of the dittereiice between good and evil, togetlier witli malice and supe- rior cunning. (4 BL Comm. 22,23.) -How- ever, it deserves consideratioji, whether this is a sufficient test of rational discern- ment of the nature of crime and duty; and judges may well lean against convic- tions in such cases, upon princi])les not merely of humanity, but of piiilosoi)hical responsibility. zVfter 14, the general pre- sumption is in fiivor of an infant being doli capax, and therefore he generally stands upon grounds similar to those of adults, until his actual incapacity is proved. —As to crimes conmiitted by lunatics and idiots, the exception on account of want of capacity obviously applies only to cases where it exists at the time of the commission of the offence. Hence it is uo excuse, if a person who has been in- sane commits an offence in a lucid inter- val, or at a time when his reason is clearly restored. So, on the other hand, a per- son may not be an absolute idiot, so as to have no discermnent whatsoevei', and yet may be excusable from punishment if his capacity be so weak that he does not, tiiough an adult, understand clearly the distinctions between right and wrong. Ex- treme old age sometimes reduces pei-sons to a state almost of fatuity, and exposes them to be imposed upon, arid even se- 'luced to the conunission of offences, ander circumstances where they would be held no more liable to punishment than infants. Every thing dei)ends upon soundness of mind and real discretion at the time of committing the offence. When a person becomes insane after the conunission of an ofl^ence, and before trial, he is not, by the couunon law, ever al- lowed to be brouglit to trial, until he is restored to his reason. At whatever stage of a public prosecution the insanity occurs, it operates as a suspension of all further proceedings. Thus, if it occurs before arraignment, the party ought not to be arraigned for the offence ; if after arraign- ment, he ought not to be required to plead; if after plea, he ought not to be put to trial; if after trial, he ought not to have judgment or sentence pronounced against him ; if after judgment, execution of the sentence ought to be stayed. The gromid upon which this rule of law is commonly supposed to stand is, that it ought never to be i)resumed that the party, if sane, might not suggest some defence that, in reason or justice, would entide him to mercy, or to exemption from punishment A reason quite as satisfactory is, tliat the VOL. IV. 4 ])unishrnent of an insane person can pro- duce no good result, either to reform the offender or as a i)ublic example. It would shock all thefeelingsof humanity to inflict punishment on those whom the visitation of Providence had already made objects of wretchedness and of compassion. In all cases where it is doubtful whether the l)arty be insane or not, the fact is, by the conunon law, to be tried by a jury.—In re- spect to injuries connnitted without the in- tention of the party, as du-ough misfortune or chance. Where an accidental mischief liap[)ens in the jierformance of a lawful act, in the doing of which the party uses reasonable care and diligence, he is whol- ly free from guilt, and it is deemed his misfortune; but if he does not use rea- sonable care and diligence, he is liable to punishment according to the nature and extent of his negligence. If guilty of gross negligence, he is sometimes punishable in the same manner as if the act were inten- tionally committed; if guilty of slight negligence only, he escapes with a more moderate jiunishment. If the mischief ha})])ens in the jierlbrmance of an unlaw- ful act, and a consequence ensues which was not intended or foreseen, the party is not free from guilt. But the degree of ))unishment ought to depend upon the nature of the unlawful act itself. A dis- tinction is taken, in the common law, between cases where the original act is w'rong and unlawful in itself (Hio/ujn^er se), and where it is merely prohibited by stat- ute {malum prohibitum). In the former case, the party is responsible for all inci- dental consequences of the unlawful act; in the latter, not. An illustration of these ]»rinciples may be found in cases com- monly put in our treatises on criminal law: If a man be at work with a hatchet, and the head ffies off, and kills a stander- by, this is not any offence, for tlie jjarty was doing a lawful act, without any ui- tention of hurt. So a parent may mod- erately correct a child, and if, in so doing, death happens, against his intention, it is mere misadventiue. But if he con-ects the child immoderately, or uses an instni- ment which is dangerous to hfe, or is wanting in reasonable caution, he is guilty eiUier of manslaughter or murder, accord- ing to the circumstances and the degree of the punishment If a man, riding a horse with reasonable care, accidentally loms over a child and kills him, he is not guilty of any offence. If he rides hun furiously ui a street where there may be danger, and the like mischief happens, he is guilty of manslaughter at least. If he rides him](https://iiif.wellcomecollection.org/image/b21136737_0041.jp2/full/800%2C/0/default.jpg)
