“He who incites a madman (idiot, infant, or lunatic) to do a murder or other crime, (as to kill himself) is a principal offender, and as much punishable as if he had done it himself.” _1 Hawk. P. C._ _p._ 3 _and_ 118. _1 H. P. C._ 617.
“It seems agreed at this day, that if one, who has committed a capital offence, become _non compos_ before conviction, he shall not be arraigned; and if after conviction, that he shall not be executed.” _1 Hawk. P. C._ 3; _1 H. P. C._ 36. Indeed in the bloody reign of _Henry_ the eighth, a statute was made (_33 H. 8_, _c._ 20) which enacted, that if a person, being _compos mentis_, should commit 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 But this savage and inhuman law was repealed by the _Stat. 1 and 2 P. and M._ _c._ 10. For as is observed by _Sir Ed. Coke_, “the execution of an offender is for example, _ut pœna ad paucos, metus ad omnes perveniat_: 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.” _4 Bl. Com._ _p._ 25.
Pregnancy is a good plea in bar of execution; but it does not prevent trial or sentence; in a recent instance, however, when a woman was brought to the bar evidently in labour, she was remanded by the court; and query, whether this discretion ought not to be exercised in all cases of advanced pregnancy; for the agitation of the trial may be of more fatal effect than the judgment of the law, and the unfortunate woman, though acquitted, may perish with her child from the mere effect of mental distraction.
When the plea of pregnancy is made to stay execution “the judge must direct a jury of twelve matrons or discreet women to inquire the fact: and if they bring in their verdict _quick with child_ (for barely _with child_[100] unless it be alive in the womb, is not sufficient) execution shall be stayed generally till the next session: and so from session to session till either she is delivered, or proves by the course of nature not to have been with child at all. But if she once hath the benefit of this reprieve, and has been delivered, and afterwards become pregnant again, she shall not be entitled to the benefit of a further respite from that cause.[101] For she may now be executed before the child is _quick_ in the womb; and shall not, by her own incontinence, evade the sentence of justice.” _4 Bl. Com._ 395; (see also _2 Hawk. P. C._ 658, and authorities there.) But _Sir M. Hale_ says that though she be _quick_ a second time she shall have no respite on that account. _1 P. C._ 369. And yet he afterwards draws a nice distinction _in favorem prolis_, that if the woman were not quick, or with child at all,[102] at the time of the first inquest of the matrons, and afterwards become with child, she shall have her respite; “for the advantage she had at first was not really by reason of pregnancy, but by a mistake of the jury of women.” “And therefore as hath been said, in all cases of reprieves for pregnancy, the judge ought to make a new demand, what the prisoner hath to say wherefore execution should not be awarded.” _Ib._ And so in all cases where any time intervenes between the attainder and the award of execution, for the party may have become insane, or may plead pregnancy, or a pardon, or an act of grace, or diversity of person, that he is not the same that was attainted. _1 Bl. Com._ 396.