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 to ten and an half was aetas infantiae proxima ; from ten and an half to fourteen was aetas pubertati prorima. 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 childhood, 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 inany 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 the 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 misdemeanors, 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 having 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 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 [*23 ] 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, according 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 slands, 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 (f); 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 primâ facie adjudged to be doli incapar; 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, and a discretion *to discern between [*24 ] (6) Inst. 3. 20. 10. (c) F. 29, 5. 14. 50, 17, 111. 47.2 23. id) I Hal. P. C. 20 21, 22.

(8) Dalt. Just. c. 147.

a

(e) LL. Athelstun. Wilk, 65.
(5) Mir. c. 4,0 16. 1 Hal. P. C. 37.

good and evil (g). 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 (h). Thus also, in very modern times, a boy of ten years old was convicted on his own confession of murdering his bedfellow, there appearing in his whole behaviour plain tokens of a mischievous discretion; 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 (i). 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 (1) (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) (3). 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

(1) By 2 R. S. 701. Any person under of a man that will exempt him from justice, sixteen years of age convicted of any felony, and the punishment of the law. instead of being sentenced to imprisonment is guilty of a great offence, it must be very in a State Prison may be sent to the house plain and clear before he is allowed such an of refuge for the reformation of juvenile de exemption on the ground of lunacy ; therefore, linquents in the city of New York.

becomes of nonsane memory, execution shall be stayed : for peradventure,
says the humanity of the English law, had the prisoner been of
sound memory, he might have alleged *something in stay of judg- [ *25]
ment or execution (1) (4). Indeed, in the bloody reign of Henry
the Eighth, a statute was made (m), which enacted, that if

a person, be-
ing 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. 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, melus 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 (5). 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 commit-
ted under such deprivation of the senses : but, if a lunatic hath lucid in-
tervals of understanding, he shall answer for what he does in those inter-
vals 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 suffered to go loose, to the terror of the king's subjects.
It was the doctrine of our ancient law, that persons deprived of their rea-
son might be confined till they recovered their senses (P), without wanting
for the forms of a commission or other special authority from the crown:

(1) 1 Hal. P. C. 34.
(m) 33 H. VIII. c. 20.
(n) 3 Inst. 6.

(0) 1 Hal. P. C. 31.
(p) Bro. Abr. t. Corone, 101.

(4) See accordingly, 2 R. S. 697, 698: and and, if they should recover before the time of for the mode of trying the question of in their imprisonment shall have expired, they sanity after sentence, see id. 658.

may be remanded to prison; so, if their im(5) The most of the previous Acts are now prisonment shall have expired, they are to be repealed by 9 Geo. IV. c. 40, which enacts, in discharged. section 36, that justices at their petly ses- By section 56, the visitors of county asy. sions, held next after the 15th day of August lums are directed to prepare annual reports of in every year, shall call upon the overseers to the patients confined therein, and to furnish make returns of insane persons, under a pe- the Secretary of State, and the Clerk to the nalty of 161. for neglect.

Commissioners, under 9 Geo. IV. c. 41, with Section 38 authorizes the justices of the a copy. peace to call upon the overseers to bring any Vide also 9 Geo. IV. c. 41, intitled “An poor person deemed to be insane before two Act to regulate the Care and Treatment of justices, who, upon due examination, may Insane Persons in England ;" which, by sec. cause the party to be sent to the lunatic asy- tion 21, makes it a misdemeanor in the keeper lum or licensed house, and make an order for or other superintendant of any licensed house his allowance ;t no person to be removed, un- concealing any insane person from the inspecless under a justice's order, or, when cured, tion of the commissioners or visitors. overseers are to deliver to the keeper a certi- An idiot, or person born deaf and dumb, or ficate of examination.

any one who is non compos at the time, cannot By section 44, persons wandering about, be an approver. H. P. C. 282, Ø 5, vol. 2. deemed to be insane, though not chargeable, But, if he who wants discretion, commit a two justices may make an order for mainte- trespass against the person or possession of nance, as in cases of persons actually charge. another, he shall be compelled in a civil action able. If the estate of the party shall be suffi. to give satisfaction for the damage. Id. vol. 1 cient, overseers may recover their expenses by and 3, 0 5. 3 Bac. Abr. 131. So he who in. levy.

vites a madman to commit murder, or other By section 55, persons convicted of any of. crime, is a principal offender, and as much fence becoming insane whilst under imprison- punishable as if he had done it himself. Id. ment, may be removed by an order of the 4, 97. i Hale, 647. Secretary of State to any county asylum; See also 10 Geo. IV. c. 18.

+ As to the form and extent of such orders, see Rex v. Maulden, 2 M. and R.

and now, by the vagrant acts(9), a method is chalked out for imprisoning, chaining, and sending them to their proper homes (7).

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 [ *26] the offence, rather *than as an excuse for any criminal misbe

haviour. A drunkard, says sir Edward Coke (r), who is voluntarius daemon, hath no privilege thereby; but what hurt or ill soever he doth, his drunkenness 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 (s), 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 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 remittilur (u).” But the law of England, considering 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 another (w).

IV. A 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( *27 ] sent only observing, that if any accidental mischief *happens to

follow 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) (8). (9) 17 Geo. II. c. 5.

(u) Ff. 49. 16. 6. () 1 Inst. 247. (s) Sp. L. b. 14, c. 10. (1) Puff. L. of N. b. 8, c. 3.

(6) Plowd. 19.
(2) 1 Hal. P. C. 39.

(7) See I R. S. 634.

P. C. 475. (8) But a very important distinction is made A person committing or attempting a tresin such cases, viz. whether the unlawful act pass, or other injury to private rights or prois also in its original nature wrong and mis. perty, and while so doing involuntarily killing chievous, for a person is not answerable for another, is guilty of manslaughter in the third the accidental consequences, though fatal, of degree, and punishable with imprisonment for an act, which is merely a malum prohibitun; not more than four nor less than two years ; (2 as where any unfortunate accident happens R. S. 661): if the killing were by one actually from an unqualified person being in pursuit of committing felony, it seems to be murder. (Id. game, he is amenable only to the same extent 657). as a man duly qualified. Fost. 259.2 Hal.

:

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 ihis 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) (9).

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 ihat which his judgment disapproves ; and which, it is to be presumed, his will (if left to itself) would reject. As punishments are therefore 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.

*l. Of this nature, in the first place, is the obligation of civil [ *28 ] subjection, whereby the inferior is constrained by the superior to act contrary to what his own reason and inclination would suggest : as when a legislator establishes iniquity by a law, and commands the subject to do an act contrary to religion or sound morality. How far this excuse will be admitted in foro conscientiae, or whether the inferior in this case is not bound to obey the divine, rather than the human law, it is not my business to decide ; though the question, I believe, among the casuists, will hardly bear a doubt. But, however that may be, obedience to the laws in being is undoubtedly a sufficient extenuation of civil guilt before the municipal tribunal. The sheriff, who burnt Latimer and Ridley, in the bigoted days of queen Mary, was not liable to punishment from Elizabeth, for executing so horrid an office ; being justified by the commands of that magistracy, which endeavoured to restore superstition under the holy auspices of its merciless sister, persecution. (y) Cro. Car. 538.

(a) Ff. 22. 6. 9.

(z) Plowd. 343.

(9) “Ignorance of the law, which every man biti, part 2, sect. 2, art. 3. In Vernon's case, is bound to know, excuses no man." It may be Mich. 20 Hen. VII. fo. 2, pl. 4, the defendants a ground for pardon. Rer v. Bailey, R. and R. justified taking away the plaintiff's wife, on C. c. 1. The rule is borrowed from the civil the ground that they were accompanying her law, (D. lib. 22, tit. 6,) without, however, to Westminster, to sue for a divorce in ease adopting with it those equitable modifications of her conscience. It was objected to the plea, by which the rule was originally accompanied, that the defendants ought to have taken her some of which it may be proper to state. “Ju- to the ordinary or the metropolitan; but the ris ignorantia non prodesi ulguirere volentibus, plea was held good, " for perhaps they had not suum vero petentibus non nocet,” D. 22, 6, 7; or, knowledge of the law as to where the divorce as it is expressed by the commentators, “ Ju- should be sued.” And see Manser's case, ris erToT, ubi de damno evitando agitur, non no. Co. Rep. 4 ; Doctor and Student, book 2, cap. cet : ubi de lucro captando, nocet : error facti 46, 47, Eichhorn v. Le Maitre, 2 Wills. 368. neutro casu nocet," * Minoribus 25 annis jus To prevent the ignorance of a recent act ignorare permissum est : quod et in fæminis in from injuring a party, the act does not take quibusdam causis propter serús infirmitatem dic effect in New York till twenty days after it citur ; et ideo, sicubi non est delicium, sed juris is passed, unless there be a special provision ignorantia, non læduntur :" D. 22, 6, 9. And to the contrary. 1 R. S. 157, 8 12. see Pothier, Traité de l'Action, Condictio indeVol. II.

52

2