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Tho' all Laws do exempt a Mad-man from Punish∣ment, because their Actions* 1.1 are not governed by their Will, and the Will of Man being set apart, all his Deeds are indifferent, nei∣ther can the Body offend, without a corrupt or erro∣ueous Mind; yet if a Mad-man kill, or offer to kill the King, it is High-Treason: For the King, Est Caput, & Sa∣lus
Reipublicae & a Capite* 1.2 bona valetudo transit in omnes: And for this Cause their Persons are so sacred, that none ought to do, or offer them Violence; but he is, Reus Criminis laesae Majestatis, & pereat unus, ne pereant omnes. Thus say the Judges in Beverley's Case.
Sir Robert Holbourn, in his Reading upon the Statute of 25 E. 3. c. 2. De Pro∣ditionibus,* 1.3 says thus:
All Ages are within this Law, as in Folks which have Knowledge, or Men of Non Sanae Memoriae, and a Mad-man is also within this Law, as to that part of the Statute, which concerns more immediately the Per∣son of the King: For if any of them aforementioned in this Division, shall compass his Death, it is Treason within the first Clause; but not in the Clause of levying War: But a Man that is Surdus, coecus, & mutus, is not within this Law; for it is impossible for him to have Understanding. And afterward he tells us, That I. S. after he became mad, kills the Queen; this is Trea∣son* 1.4 within this Law: First, Because a Man may coun∣terfeit himself to be mad; and he may do it so cunning∣ly, as it cannot be discerned, whether he be mad or no. The Second is, in respect of the great Esteem that the Law gives to the Person of the King; for he is the Foun∣tain of Justice: And for the Proof of this Point, that it may be understood, we ought to see what the Com∣mon Law was, before the making of this Statute, as to this Point; and then ought to enquire, and see how the Law is altered, since the making of the Statute; and by this means we shall find out the Law, and the Rea∣son thereof: It is true, that the Law without special words, will not bind an Infant, or a Mad-man, as to
the Punishment of their Bodies; but yet it will extend to their Lands and Estates: But this our Law is no new Law, but only a declarative Law; and in that Case general words will bind an Infant, or a Mad-man, without any special words. That it was Treason at the Common Law, is ap∣parent* 1.5 in Britton, and the Mirror of Iustice; and this Statute doth not de∣clare, who shall be Trai∣tors, but what shall be Treason; and therefore by this Act, it is Treason in a Mad-man, or whomsoever shall commit it; for a Mad-man is not excepted out of this Law: And to make this appear more fully, you may be pleased to read the Case of Beverley: That a Man that is Non compos mentis, may commit High-Treason, altho' he cannot commit Petty-Treason, n•…•…r Felony. And so it is also in Dalton's Iustice of Peace, 206. That if a Man that is Non compos mentis, shall kill the King, this is High-Treason. Nay, Beverley's Case goes farther, and says, That if he shall offer only to kill the King, this is High-Treason.
Thus much for the Opinions of the Judges in Bever∣ley's Case, and of Holbourn; now let us see what Sir Ed∣ward Coke says concerning Mad-men, as to the Point of committing High-Treason.
A Man (saith he) that is Non compos mentis, or an Infant within the Age of Discretion, is not [un Home]* 1.6 within the Statute of 25 E. 3. c. 2. for the principal End of Punishment is, That others by his Example may fear to offend * 1.7, Ut poena ad paucos, metus ad omnes perveniat. But such Pu∣nishment can be no Exam∣ple
to Mad-men, or Infants, that are not of the Age of Discretion. And God forbid (quoth he) that in Cases so penal, the Law should not be certain: And if it be cer∣tain in Case of Murther and Felony, a fortiori, it ought to be certain in Case of Treason.
If a Man commit Treason, or Felony, and confesseth the same, or be thereof Convict; if afterward he* 1.8 become De non sane Me∣morie, (qui patitur exilium mentis) he shall not be called to answer: Or if after Judgment he become De non sane Memorie, he shall not be executed; for it cannot be an Example to others.
Add to what he said before, this which follows:
If a Mad-man had killed, or offered to kill the King, it was holden for Treason; and so it appeareth by King* 1.9 Alfred's Law, before the Conquest: But now by the Statute of 25 E. 3. c. 2. and by force of these words, Fait compasser, ou imaginer la mort, he that is Non compos mentis, and totally deprived of all Compassings, and Imaginations, cannot commit Treason, by Compassing or Imagining the Death of the King: For Furiosus solo furore punitur: But it must be an absolute Madness, and a total Deprivation of Memory. And this appeareth by the Statute of 33 H. 8. for there∣by it is provided, That if a Man being Compos mentis,* 1.10 commit Treason; and after Accusation, &c. fall to Madness, that he might be tried in his Absence, &c. and suffer Death, as if he were of per∣fect Memory: For by this Statute of 25 E. 3. a Mad∣man could not commit Treason. It was further provi∣ded, by the said Act of 33 H. 8. That if a Man attaint∣ed
of Treason became mad, that notwithstanding he should be executed; which cruel and inhuman Law (says he) lived not long, but was repealed: For in that Point also it was against the Common Law; because by Intend∣ment of Law, the Execution of the Offender is for Ex∣ample; but so it is not, when a Mad-man is executed; but should be a miserable Spectacle, both against Law, and of extreme Inhumanity, and Cruelty, and can be no Example to others.
C. 9. 9. 20. Tolle voluntaiem & erit omnis actus indifferen•…•…, quia affectio tua nomen imponit operi tuo, & crimen non contra∣hitur nisi nocendi voluntas inter∣cedat. Bracton, l. a. tract. 1. De Prodictionebus, c 2. nu. 14.
4 Co. f. 124. b. Beverley's Case.
Reading, Printed Anno 1681. p. 17, 18.
P. 31, 32, 33, 34.
Britton, f. 16. a. c. 8. &c 22. f. 39. a. b. Mirror, c 2. § 11. &c. 1. § 4. Vide Bracton, fol. 118. b.
Coke in his Third Institutes, fol. 4.
Ut unius poena metus possit, esse multorum, D. 16. 3. 31. D. 48. 3. 6. Cod. 9. 27. 1. D. 48. 19. 6. 1.
Co. 3 Inst. f. 4.
Co. 3 Inst. f. 6.
Cap. 20.