CRIMINAL LAW.

may be removed by facts establishing a clear sense of the difference between good and evil, together with malice and superior cunning. (4 Bl. Comm. 22, 23.) However, it deserves consideration, whether this is a sufficient test of rational discernment of the nature of crime and duty; and judges may well lean against convictions in such cases, upon principles not merely of humanity, but of philosophical responsibility. After 14, the general presumption is in favor 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 committed 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 no excuse, if a person who has been insane commits an offence in a lucid interval, or at a time when his reason is clearly restored. So, on the other hand, a person may not be an absolute idiot, so as to have no discernment whatsoever, and yet may be excusable from punishment if his capacity be so weak that he does not, though an adult, understand clearly the distinctions between right and wrong. Extreme old age sometimes reduces persons to a state almost of fatuity, and exposes them to be imposed upon, and even seduced to the commission of offences, under circumstances where they would be held no more liable to punishment than infants. Every thing depends upon soundness of mind and real discretion at the time of committing the offence. When a person becomes insane after the commission of an offence, and before trial, he is not, by the common law, ever allowed to be brought 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 arraignment, 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 ground upon which this rule of law is commonly supposed to stand is, that it ought never to be presumed that the party, if sane, might not suggest some defence that, in reason or justice, would entitle him to mercy, or to exemption from punishment. A reason quite as satisfactory is, that the 4

VOL. IV.

37

punishment of an insane person can produce no good result, either to reform the offender or as a public example. It would shock all the feelings of 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 party be insane or not, the fact is, by the common law, to be tried by a jury.—In respect to injuries committed without the intention of the party, as through misfortune or chance. Where an accidental mischief happens in the performance of a lawful act, in the doing of which the party uses reasonable care and diligence, he is wholly free from guilt, and it is deemed his misfortune; but if he does not use reascnable 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 intentionally committed; if guilty of slight negligence only, he escapes with a more moderate punishment. If the mischief happens in the performance of an unlawful act, and a consequence ensues which was not intended or foreseen, the party is not free from guilt. But the degree of punishment ought to depend upon the nature of the unlawful act itself. A distinction is taken, in the common law, between cases where the original act is wrong and unlawful in itself (malum per se), and where it is merely prohibited by statute (malum prohibitum). ute (malum prohibitum). In the former case, the party is responsible for all incidental consequences of the unlawful act; in the latter, not. An illustration of these principles may be found in cases commonly put in our treatises on criminal law: If a man be at work with a hatchet, and the head flies off, and kills a standerby, this is not any offence, for the party was doing a lawful act, without any intention of hurt. So a parent may moderately correct a child, and if, in so doing, death happens, against his intention, it is mere misadventure. But if he corrects the child immoderately, or uses an instrument which is dangerous to life, or is wanting in reasonable caution, he is guilty either of manslaughter or murder, according to the circumstances and the degree of the punishment. If a man, riding a horse with reasonable care, accidentally runs over a child and kills him, he is not guilty of any offence. If he rides him furiously in a street where there may be danger, and the like mischief happens, he is guilty of manslaughter at least. If he rides him

furiously into a crowd, either from wantonness or thoughtlessness, and the like accident happens, it will be murder. If a person in England, duly qualified by law to kill game, accidentally kills another while so doing, he is guilty of no offence. If a person be prohibited by statute from killing game, and the like accident happens by his shooting, he is not answerable in any other manner than a person duly qualified. This last case illustrates the distinction as to cases of malum prohibitum. On the other hand, if a person, shooting at poultry belonging to another person, by accident kills a man, if his intention was to steal the poultry, it will be murder, by reason of the felonious intent: if his intention was not to steal, but it was an act of mere wantonness, it will be manslaughter only. In these last cases, the act is malum in se.—In respect to injuries committed through ignorance or mistake. This may arise when a man, intending to do a lawful act, does what is unlawful. An illustration commonly put is that of a man intending to kill a thief or housebreaker, in his own house, who, by mistake, kills one of his own family. In this case, if he acted under circumstances of reasonable belief that the party killed was the thief or housebreaker, there is no ground to impute criminality to him. His conduct was founded in a mistake of fact, that is, of the person; for it is sometimes lawful, by the common law, to kill a housebreaker found in your house. But a mistake, or ignorance of law will not justify an act of the like nature. If a person supposes he has a right to kill a trespasser or outlaw, or excommunicated person, and he does so, he is guilty of murder.In respect to crimes committed by compulsion or force. The common law recognises but few cases in which the authority or command of a superior furnishes any excuse for the commission of an offence. In the case of children or servants, the commands of the master or parent furnish no excuse. In the case of a wife who commits a crime in company with her husband, she is deemed, by the benignity of our law, to act under compulsion, and therefore she is excused in all cases except murder, manslaughter and treason. These exceptions are founded upon the peculiar danger and atrocity of the offences, and the public policy of discouraging every motive to commit them. Where the wife commits the offence alone, without the company or compulsion of her husband, she is personally responsible in the same manner as if she were unmarried. There are

other species of compulsion recognised in the common law, which may excuse the commission of offences. Thus where a person commits an offence in consequence of threats or menaces, which induce a fear of death or other bodily harm. This is called duress per minas. But the fear which compels a man to do an illegal act must be just and well grounded, such as may intimidate a firm and resolute man, and not merely of such a nature as may operate upon the timid and irresolute, otherwise it will constitute no excuse. Thus, in time of war or rebellion, a man may be excused for doing treasonable acts, if they are caused by the compulsion of the enemy or rebels. But the compulsion must not be a mere threat to do injury to property, nor even slight injury to the person, but a just fear either of death or of great bodily injury; and even in such case, it is the duty of the party to avoid doing such acts as soon as he safely may, by escape or otherwise; for if he does not, he will be liable to punishment as a volunteer. But even this excuse is not allowed in all cases, but seems principally confined to crimes positively created by society; for no man can justify or excuse himself for murdering an innocent person, under the pretence of fear or necessity, though he certainly may kill another in necessary self-defence. Another case of compulsion or necessity often occurs in the reasoning of speculative writers, whether a person in extreme want of food is excusable for stealing to satisfy his hunger. Whatever may be the doctrine of foreign jurists, or the opinion of publicists, it is certain that no such excuse is now admitted in the common law. If the offence should be committed under circumstances of extraordinary suffering, the case would rarely be brought before any tribunal of justice; and if it should be, the power of pardon in the government, and the humanity of the court itself, would either annul or mitigate the punishment. There is another case often put, where two persons at sea are shipwrecked, and get on a single plank, and it cannot support both, but both must be drowned unless one is displaced: what is then to be done? In such a case, the law of self-preservation has been supposed to justify either party in a forcible dispossession of the other. The common law seems to recognise this principle, and, in such a deplorable calamity, imputes no blame to the survivor.-We now proceed to notice another important distinction, which the common law acts upon in relation to crimes. It is the dis

CRIMINAL LAW.

tinction in guilt and punishment which is
made between principals and accessories.
Persons are called principals in the first
degree, who are the actors or perpetrators
of the offence. Persons who are present,
aiding and abetting the perpetrator, are
called principals in the second degree. This
presence may be either in fact, as where
the parties are immediately standing by,
or are within sight and hearing; or con-
structive, as when the party, though not
within sight or hearing, is on the watch
at a convenient distance, ready to assist,
and near enough to do so, if required.
There are cases, too, in which a person
may be the principal in construction of
law, although he is absent, and the fact is
done through the instrumentality of anoth-
er; as, in case of murder by poisoning,
a man may be the principal felon by pre-
paring or laying the poison, with an inten-
tion that it should be taken, or by employ-
ing an innocent person to administer it,
under false pretences, although he is not
personally present when it is taken or
administered. Many cases of the like
nature may be easily put. An accessory
is he who is not the chief actor in the of-
fence, nor present at its perpetration, in
the sense above stated, but who is in some
manner concerned in it, either before or
after the fact is committed. If he pro-
cures, counsels, abets or commands the
crime, and is absent at its commission, he
is deemed an accessory before the fact
If, without any such participation in it, he
knows that the crime has been committed,
and afterwards relieves, assists, comforts
or receives the offender, he is deemed an
accessory after the fact. Thus, if he aids
the offender to escape, or rescues him from
arrest, or conceals or supports him, he is
deemed an accessory after the fact; so
if he buys or receives stolen goods, know-
ing them to be stolen. There are certain
classes of offences at the common law
which admit of no accessories. Thus, in
treason, all the parties concerned are deem-
ed principals propter odium delicti; and in
offences which are under the degree of fel-
ony, and in trespasses, all persons con-
cerned are deemed principals, for an oppo-
site reason, because the law will not con-
descend, in petty crimes, to ascertain the
different degrees of guilt. In all other
offences, that is, in all except the highest
and the lowest, there may be, technically
speaking, accessories. It follows as a
maxim, that, in such cases, the accessory
cannot be guilty of a higher offence than
his principal. In respect to punishment,
the ancient common law did not make any

39

distinction between accessories and princi-
pals; but by statute, many distinctions are
now made, and especially regarding ac-
cessories after the fact. In the U. States,
few of our criminal codes have failed to
mark out very strong differences in the
punishment. There are, in fact, many
reasons which require the distinction be-
tween principals and accessories to be
constantly kept in view. In the first place,
in many instances, a man cannot be tried
as accessory until after the trial and con-
In the next
viction of the principal.
place, if a man be indicted as accessory
and acquitted, he may still be indicted as
principal. In the third place, as a natural
inference from the other considerations,
the defence of the accused may, and often
must, turn upon very different principles,
where he is accused as accessory, from
what might or could arise if he were
accused as principal.-In respect to the
mode of presentment and trial for of
fences. In England, no person can be
brought to trial, for any capital offence or
felony, except upon the presentment or
indictment of a grand jury; but for infe-
rior offences or misdemeanors, an informa-
tion, in the nature of an indictment, may
be filed by the king's attorney-general, or
other proper officer, upon which the party
may be put upon trial. Even in such
cases, an indictment also lies. In the U.
States, informations are rarely resorted to
in any of the states in such cases; and
the usual, and, in many cases, the only
constitutional course is an indictment by a
grand jury. All offences, whether charged
by indictment or information, are, by the
common law, to be tried by a jury comi-
posed of 12 men, and their verdict is con-
clusive upon the facts. In the U. States,
this privilege of trial by jury is generally
secured by the constitutions of the state
and national governments. A privilege
often quite as valuable to the accused, is
that of being assisted by counsel in the
management of his defence. It is a cu-
rious anomaly in the English jurispru-
dence, that counsel are admissible in the
argument of facts to the jury only in the
highest and lowest offences; in treason,
by the express provision of statute, and in
mere misdemeanors, by the common law.
In all capital cases, except treason, the ac-
cused is denied this privilege; and, how-
ever important and useful such a privilege
may be, the introduction of it has been
hitherto successfully resisted in the British
parliament. In the U. States, a far differ-
ent, and, as we think, wiser and more hu-
mane rule prevails. In all criminal cases,

40

CRIMINAL LAW-CROCODILE.

the accused is entitled, as of right, to the assistance of counsel in his defence; and this right, also, is generally secured by the state and national constitutions of government. This is not the place for a discussion of the value of such a right, though to us it seems recommended by principles of policy as well as of justice and humanity. The mode of impanneling juries, the right of challenge, and other incidents of criminal trials, belong more appropriately to other heads. (See Crime, Courts, and Jury.)

CRISIS (from pive, to decide), in medicine; a point in a disease, at which a decided change for the better or the worse takes place. The crisis is most strongly inarked in the case of acute diseases, and with strong patients, particularly if the course of the disease is not checked by energetic treatment. At the approach of a crisis, the disease appears to take a more violent character, and the disturbance of the system reaches the highest point. If the change is for the better, the violent symptoms cease with a copious perspiration, or some other discharge from the system. In cases where the discharge may have been too violent, and the nobler organs have been greatly deranged, or where the constitution is too weak to resist the disease, the patient's condition becomes worse. In regular fevers, the crisis takes place on regular days, which are called critical days (the 7th, 14th and 21st); sometimes, however, a little sooner or later, according to the climate and the constitution of the patient. A bad turn often produces a crisis somewhat sooner. When the turn is favorable, the crisis frequently occurs a little later. After a salutary crisis, the patient feels himself relieved, and the dangerous symptoms cease.-It hardly need be mentioned, that the word crisis is figuratively used for a decisive point in any important affair or business, for instance, in politics.

CRISPIN; the name of two legendary saints, whose festival is celebrated on the 25th of October. They are said to have been born at Rome, about 303 A. D., and to have travelled to France to propagate Christianity, where they died as martyrs. During their mission, they maintained themselves by shoemaking; hence they are the patrons of shoemakers.

CRITICAL PHILOSOPHY. (See Kant, and Philosophy.)

CROATIA; a kingdom of the Austrian monarchy, connected with Hungary. It is divided into Civil and Military Croatia. The former contains 3665 square miles,

441,000 inhabitants, 7 cities, 16 market towns, 1827 villages, and consists of the three counties of Agram, Creutz, and the Hungarian Littorale (of which the principal place is Fiume). It is watered by the Drave, Save, Culpa and Unna, and bounded by Hungary, Sclavonia, Bosnia, Dalmatia, Illyria and Styria. Military Croatia (see Military Districts) contains 6100, according to some, 4884, square miles, with 414,800 inhabitants, in 6 cities, 6 market towns, and 1241 villages. The inhabitants are Croats and Rascians, mixed with a few Germans and Hungarians. The Croats, a Sclavonic tribe, are Roman Catholics, and are known as good soldiers, but have made little progress in science and the arts; nay, they have not among them even all of the ordinary mechanics. Their language is the Slaveno-Horwatic dialect. In Turkish Croatia (on the Unna and near Bihatsch), they are Greek Catholics. Civil Croatia is fertile, and intersected by heights of very moderate elevation, extending down from Styria and Carniola. Military Croatia, however, towards Bosnia and Dalmatia, has mountains rising to the height of 5400 feet; as, for instance, Wellebit, the Plissivicza mountains, and the mountains of Zrin. The climate is healthier than that of the neighboring Sclavonia, and mild. The country produces chiefly wine, tobacco, grain of various sorts, including maize, fruits, particularly plums, wood, cattle, horses, sheep, swine, game, fish, bees, iron, copper, and sulphur.

CROCODILE (Crocodilus); a genus of saurian, or lizard-like reptile, species of which are found in the old and new world. That inhabiting the Nile and other rivers of Africa has been known for many ages, and celebrated, from the remotest antiquity, for qualities which render it terrible to mankind. As the largest reptile known,* and as the most ferocious and destructive of the inhabitants of the waters, it could not but command the attention, and excite the fears, of those who were near enough to observe its peculiarities. Few persons have read the sublime book of Job, without being struck with the magnificent and terrible description of the attributes of leviathan to which alone the characters of the crocodile correspond. It is not surprising that the Egyptians, who deified almost

* The skeletons of much larger reptiles have been discovered within the last half century; but, certain they had become extinct long before the from the strata in which they were found, it is earth was inhabited by man.