cular and special exceptions: for the general rule is, that no person shall be excused from punishment for disobedience to the laws of his country, excepting such as are expressly defined and exempted by the laws themselves.

All the several pleas and excuses, which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto, may be reduced to this single consideration, the want or defect of will. An involuntary act, as it has no claim to merit, so neither can it induce any guilt; the concurrence of the will, when it has its choice either to do or to avoid the fact in question, being the only thing that renders human actions either praiseworthy or culpable. Indeed, to make a complete crime [ 21 } cognizable by human laws, there must be both a will and an act. For though, in foro conscientiae, a fixed design or will to do an unlawful act is almost as heinous as the commission of it, yet, as no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwise than as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know. For which reason in all temporal jurisdictions an overt act, or some open evidence of an intended crime, is necessary in order to demonstrate the depravity of the will, before the man is liable to punishment. And, as a vicious will, without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no crime at all. So that to constitute a crime against human laws, there must be, first, a vicious will; and, secondly, an unlawful act consequent upon such vicious will.

Now there are three cases, in which the will does not join with the act : 1. Where there is a defect of understanding. For where there is no dis. cernment, there is no choice; and where there is no choice there can be no act of the will, which is nothing else but a determination of one's choice to do or to abstain from a particular action: he, therefore, that has no understanding, can have no will to guide his conduct. 2. Where there is understanding and will sufficient, residing in the party; but not called forth and exerted at the time of the action done; which is the case of all offences committed by chance or ignorance. Here the will sits neuter; and neither concurs with the act, nor disagrees to it. 3. Where the action is constrained by some outward force and violence. Here the will counteracts the deed; and is so far from concurring with, that it loaths and disagrees to, what the man is obliged to perform. It will be the business of the present chapter briefly to consider all the several species of defect in will, as they fall under some one or other of these general heads : as in. fancy, idiocy lunacy, and intoxication, which fall under the first class; misfortune, and ignorance, which may be referred to the se. [ 22 ] cond; and compulsion or necessity, which may properly rank in the third.

I. First, we will consider the case of infancy, or nonage; which is a defect of the understanding. Infants, under the age of discretion, ought not to be punished by any criminal prosecution whatever. (a) What the age of discretion is, in various nations, is matter of some variety. The civit law distinguished the age of minors, or those under twenty-five years old, into three stages: infantia, from the birth till seven years of age; pueritia, from seven to fourteen; and pubertas, from fourteen upwards. The period of pueritia, or childhood, was again subdivided into two equal parts:from seven te ten and a half was actas infantige proxima; from ten and a

half to fourteen was aetas pubertati proxima. During the first stage of infancy, and the next half stage of childhood, infantiae proxima, they were not punishable for any crime. (b) During the other half stage of child. hood, approaching to puberty, from ten and an half to fourteen, they were indeed punishable, if found to be doli capaces, or capable of mischief: but with many mitigations, and not with the utmost rigour of the law. (c) During the last stage (at the age of puberty, and afterwards), minors were liable to be punished, as well capitally, as otherwise.

The law of England does in some cases privilege an infant, under the age of twenty-one, as to common misdemesnors, so as to escape fine, imprisonment, and the like: and particularly in cases of omission, as not repairing a bridge, or a highway, and other similar offences; (d) for, not hav ing the command of his fortune till twenty-one, he wants the capacity to do those things which the law requires. But where there is any notorious

breach of the peace, a riot, battery, or the like (which infants, when [23] full grown, are at least as liable as others to commit), for these an infant, above the age of fourteen, is equally liable to suffer, as a person of the full age of twenty-one.

With regard to capital crimes, the law is still more minute and circumspect distinguishing with greater nicety the several degrees of age and discretion. By the ancient Saxon law, the age of twelve years was established for the age of possible discretion, when first the understanding might open; (e) and from thence till the offender was fourteen, it was aetas pubertati proxima, in which he might or might not be guilty of a crime, ac. cording to his natural capacity or incapacity. This was the dubious stage of discretion: but, under twelve it was held that he could not be guilty in will, neither after fourteen could he be supposed innocent of any capital crime which he in fact committed. But by the law, as it now stands, and has stood at least ever since the time of Edward the Third, the capacity of doing ill, or contracting guilt, is not so much measured by years and days, as by the strength of the delinquent's understanding and judgment. For one lad of eleven years old may have as much cunning as another of fourteen; and in these cases our maxim is, that "malitia supplet aetatem." Under seven years of age indeed an infant cannot be guilty of felony ;(ƒ) for then a felonious discretion is almost an impossibility in nature: but at eight years old he may be guilty of felony. (g) Also, under fourteen, though an infant shall be prima facie adjudged to be doli incapax; yet if it appear to the court and jury, that he was doli capax, and could discern between good and evil, he may be convicted and suffer death. Thus 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, [24] and a discretion to discern between good and evil. (h) And there

was an instance in the last century where a boy of eight years old was tried at Abingdon for firing two barns; and, it appearing that he had malice, revenge, and cunning, he was found guilty, condemned, and hanged accordingly. (i) Thus also, in very modern times, a boy of ten years old was convicted on his own confession of murdering his bedfellow, there ap pearing in his whole behaviour plain tokens of a mischievous discretion; b Inst 2.20. 10. c Ff. 29. 5. 14. 50. 17. 111. 47, 2, 23. d 1 Hal. P. C. 20, 21, 22. Mir.4.6 10. 1 Hal. P. C. 27. g Dalt. Just. 147. > Emlyn on A Hal. P. C. 25.

LL. Athelstan. Wilk. 65.
haal. P. G. 96.07.

and, as the sparing 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. (j) But, in all such cases, the evidence of that malice which is to supply age, ought to be strong and clear beyond all doubt and contradiction.'

2

II. The second case of a deficiency in will, which excuses from the guilt of crimes, arises also from a defective or vitiated understanding, viz. in an idiot or a lunatic. For the rule of law as to the latter, which may easily be adapted also to the former, is, that, "furiosus furore solum punitur." In criminal cases therefore idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities: no, not even for treason itself. (k) Also, if a man in his sound memory commits a capital offence, and before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of nonsane memory, execution shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of sound memo. ry, he might have alleged something in stay of judgment or execu- [ 25 } tion. (7) 3 Indeed, in the bloody reign of Henry the Eighth, a statute was made, (m) which enacted, that if a person being compos mentis, should commit high treason, and after fall into madness, he might be tried in his absence, and should suffer death, as if he were of perfect memory.

j Foster, 72.

I Hal, P. C. 34.

k 3 Inst. 6. m 33 H. VIII. c. 20. (1) Where an act is made felony or treason, it extends as well to infants, it above the age of fourteen, as to others, see Co. Lit. 247 Hal Hist. P. C. 21, 22.; and this appears by several acts of parliament, as by 1 Jac. I. ch 11., of felony for marrying two wives, where there is a special exception of marriages below the age of consent; which in temales is twelve and males fourteen so that if the marriage were above the age of consent, though within the age of twentyone years, it is not exempted from the penalty. See Bing. on Inf. 99, 100. So, by the 21 Hen. VIII. c. 7., concerning felony, by servants that embezzle their master's goods delivered to them, there is a special proviso that it shall not extend to servants under the age of eighteen, who certainly would have been within the penalty, if above the age of fourteen, though under eighteen years, unless thus excluded by a special proviso, Hale Hist. P. C. 22. So, the 12 Aun c 7 for punishing robberies in dwelling-houses excepts apprentices under the age of fifteen, who shall rob their masters, from the act. Chitty.

(2) It is not every frantic and idle humour of a man that will exempt him from justice, and the punishment of the law. When a man is guilty of a great offence, it must be very plain and clear before he is allowed such an exemption on the ground of lunacy; therefore, it is not something unaccountable in a man's actions, that points him out to be such a madman as is to be exempted from punishment. It must be a man that is totally deprived of his understanding and memory; one who doth not know what he is doing any more than an infant, or a wild beast; it is only such a one who is never the object of punishment. 16 How. St. Tr. 764. If there be a total want of reason, it will acquit the prisoner; if there be an absolute temporary want of it, when the offence was committed, it will acquit the prisoner; but there be only a partial degree of insanity, mixed with a partial degree of reason, not a full and complete use of reason (as Lord Hale carefully and emphatically expresses himself), but a competent use of it, sufficient to have restrained those passions which produced the crime; if there be thought and design, a faculty to distinguish the nature of actions, to discern the difference between moral good and evil, then upon the fact of the offence proved, the judgment of the law must take place Per Yorke, Solicitor Gen. in Lord Ferrer's case, 19 How. St. Tr. 947, 8. et per Lawrence, J., 3 Burn J. 24 ed 312, 3. Chitty.

(3) If the punishment were less than death, and were inflicted upon a prisoner deprived of reason, it would be unproductive of one of the great ends of punishment, the correction of the criminal. Human tribunals are only justified in introducing the pain and evil of punishment, when it is likely to prevent that greater degree of evil, which would result from the unrestrained commission of crimes. Christian.

But this savage and inhuman law was repealed by the statute 1 & 2 Ph. & M. c. 10. For, as is observed by sir Edward Coke, (n)" the execution of "an offender is for example, ut poena 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." But if there be any doubt, whether the party be compos or not, this shall be tried by a jury. And if he be so found, a total idiocy, or absolute insanity, excuses from the guilt, and of course from the punishment of any criminal action committed under such deprivation of the senses: but, if a lunatic hath lucid intervals of understanding, he shall answer for what he does in those intervals as if he had no deficiency. (o) Yet in the case of absolute madmen, as they are not answerable for their actions, they should not be permitted the liberty of acting unless under proper control; and, in particular, they ought not to be suffer. ed to go loose, to the terror of the king's subjects. It was the doctrine of our ancient law, that persons deprived of their reason might be confined till they recovered their senses, (p) without waiting for the forms of a commission or other special authority from the crown; and now, by the vagrant aets, (q) a method is chalked out for imprisoning, chaining, and sending them to their proper homes.5

III. Thirdly; as to artificial, voluntarily contracted madness, by drunkenness or intoxication, which, depriving men of their reason, puts them in a

temporary frenzy; our law looks upon this as an aggravation of the [26] offence, rather than as an excuse for any criminal misbehaviour. A

drunkard, says sir Edward Coke, (r) who is voluntarius daemon, hath no privilege thereby; but what hurt or ill soever he doth, his drunk. enness doth aggravate it: nam omne crimen ebrietas et incendit, et detegit. It hath been observed, that the real use of strong liquors, and the abuse of them by drinking to excess, depend much upon the temperature of the climate in which we live. The same indulgence which may be necessary to make the blood move in Norway, would make an Italian mad. A German therefore, says the president Montesquieu, (i) drinks through custom, founded upon constitutional necessity; a Spaniard drinks through choice, or out of the mere wantonness of luxury and drunkenness, he adds, ought

n 3 Inst. 6.

o 1 Hal. P. C. 31.
r 1 Inst. 247.

p Bro. Abr. tit. Corone. 101.
s Sp. L. b. 14. c. 10.

q 17 Geo. II. c. 5.

(4) By the 39 & 40 Geo. III. c. 94. s. 1. a person insane at the time of committing the offence of treason, murder, or felony, upon the jury's acquitting him, they must find specially he was insane, and that he was acquitted on that account; and then an order is to be made by the court, to keep the party in custody until the king's pleasure be known; and by see. 2. when a person indicted for any offence be insane, and so found to be upon arraignment, so that he cannot be tried, or when upon the trial he shall be found insane, the court may record such finding, and order the party to be kept in custody until the king's pleasure be known; and if the person be brought up to be discharged for want of prosecution, then a jury may be empanelled to try his insanity, and he may be kept in custody as before directed. The 48 Geo. III. c. 96. s. 27. provides for the maintenance of lunatics kept in custody, under the provisions of the 59 & 40 Geo III. s. 2.; and the 56 Geo. III. c. 117. provides that offenders, becoming insane during confiueinent, may be removed to any lunatic asylum. Chitty.

(5) By the 59 & 40 Geo. III. c. 94. s. 3. persons suspected of insanity, and of committing a crine, may be committed by a justice of the peace, without bail, except by two justices, one of whom shall be the justice who issued the warrant, or by the quarter sessions, or by one of the judges, or lord chancellor, lord keeper, or commissioners of the great seal. Where it is danger19 to permit a lunatic to go abroad, two justices may order him to be apprehended and secured, even with chains, if necessary, and may send him by a vagrant pass to the place of his settlement; and may order so much of his goods to be sold, or the rents of his lands to be received, as will discharge the expense incurred; but such sum must be accounted for at the next sessions: but this does not preclude the jurisdiction of the chancellor, or prevent any relation or friend from taking the lunatic under his care. 17 Geo. II. c. 5. s. 21. see p. 396. Christian

to be more severely punished, where it makes men mischievous and mad, as in Spain and Italy, than where it only renders them stupid and heavy, as in Germany and more northern countries. And accordingly, in the warm climate of Greece, a law of Pittacus enacted, "that he who committed a crime when drunk, should receive a double punishment ;" one for the crime itself, and the other for the ebriety which prompted him to commit it. (t) The Roman law indeed made great allowances for this vice: "per vinum delapsis capitalis poena remittitur. (u) But the law of England, consider. ing how easy it is to counterfeit this excuse, and how weak an excuse it is (though real), will not suffer any man thus to privilege one crime by ano ther. (w)

IV. Á fourth deficiency of will, is where a man commits an unlawful act by misfortune or chance, and not by design. Here the will observes a total neutrality, and does not co-operate with the deed; which therefore wants one main ingredient of a crime. Of this, when it affects the life of another, we shall find more occasion to speak hereafter; at pre. sent only observing, that if any accidental mischief happens to follow [ 27 ] from the performance of a lawful act, the party stands excused from all guilt: but if a man be doing any thing unlawful, and a consequence ensues which he did not foresee or intend, as the death of a man or the like, his want of foresight shall be no excuse; for, being guilty of one offence, in doing antecedently what is in itself unlawful, he is criminally guilty of whatever consequence may follow the first misbehaviour. (x) “

V. Fifthly; ignorance or mistake is another defect of will; when a man, intending to do a lawful act, does that which is unlawful. For here the deed and the will acting separately, there is not that conjunction between them, which is necessary to form a criminal act. But this must be an ignorance or mistake of fact, and not an error in point of law. As if a man, intending to kill a thief or housebreaker in his own house, by mistake kills one of his own family, this is no criminal action: (y) but if a man thinks he has a right to kill a person excommunicated or outlawed, wherever he meets him, and does so this is wilful murder. For a mistake in point of law, which every person of discretion not only may, but is bound and presumed to know, is in criminal cases no sort of defence. Ignorantia juris, quod quisque tenetur scire, neminem excusat, is as well the maxim of our own law, (2) as it was of the Roman. (a)

7

VI. A sixth species of defect of will is that arising from compulsion and inevitable necessity. These are a constraint upon the will, whereby a man is urged to do that which his judgment disapproves; and which, it is to be presumed, his will (if left to itself) would reject. As punishments are there. fore only inflicted for the abuse of that free will, which God has given to man, it is highly just and equitable that a man should be excused for those acts which are done through unavoidable force and compulsion.

t Puff. L. of N. b. 8. c. 3. u Ff. 49. 16. 6.
y Oro. Car. 538.

w Plowd. 19. z Plowd. 343.

ri Hal. P. C. 39. a Fy. 22. 6.9.

(6) But a very important distinction is made in such cases, viz. whether the unlawful act is also in its original nature wrong and mischievous, for a person is not answerable for the accidental consequences, though fatal, of an act, which is merely a malum prohibitum; as where any unfortu nate accident happens from an unqualified person being in pursuit of game, he is amenable only to the same estout as a man daly qualified: Fost 259 2 Hal. P. C. 475. Christian.

(7) But ignorance of a law, which is of very recent enactment, will in some cases afford an excuse. Thus where the prisoner was indicted for maliciously shooting, and the offence was com mitted within a few weeks after the passing of the 39 Geo. III. c. 37., and before notice of it could have reached the place where the offender was committed, the judges thought that, as he could not have known of that act, he ought to have a pardon. Russ: and Ry. Cr. C. 1.