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It is, moreover, absurd and impolitic to apply the same punishments to crimes of different malignity. A multitude of sanguinary laws (besides the doubt that may be entertained concerning the right of making them) do likewise prove a manifest defect either in the wisdom of the legislative, or the strength. of the executive power. It is a kind of quackery in government, and argues a want of solid skill, to apply the same universal remedy, the ultimum supplicium, to every case of difficulty. It is, it must be owned, much easier to extirpate than to amend mankind; yet that magistrate must be esteemed both [ 18 ] a weak and a cruel surgeon who cuts off every limb which, through ignorance or indolence, he will not attempt to cure. It has been, therefore, ingeniously proposed that in every state a scale of crimes should be formed, with a corresponding scale of punishments, descending from the greatest to the least; but if that be too romantic an idea, yet at least a wise legislator will mark the principal divisions, and not assign penalties of the first degree to offenses of an inferior rank. Where men see no distinction made in the nature and gradations of punishment, the generality will be led to conclude there is no distinction in the guilt. Thus, in France, the punishment of robbery, either with or without murder, is the same; hence it is that though, perhaps, they are therefore subject to fewer robberies, yet they never rob but they also murder." In China, murderers are cut to pieces, and robbers not; hence in that country they never murder on the highway, though they often rob. And in England, besides the additional terrors of a speedy execution, and a subsequent exposure or dissection, robbers have a hope of transportation, which seldom is extended to murderThis has the same effect here as in China, in preventing frequent assassination and slaughter.

Yet, though in this instance we may glory in the wisdom of the English law, we shall find it more difficult to justify the frequency of capital punishment to be found therein, inflicted (perhaps inattentively) by a multitude of successive independent statutes upon crimes very different in their natures. It is a melancholy truth that, among the variety of actions which men are daily liable to commit, no less than a hundred and

2 Beccar., c. 6.

a

Sp. L., b. 6, c. 16.

the preceding long and cruel reign of married a second wife after the death of
Henry VIII. It repeals the statute 31 the first, he should be deprived of the
Hen. VIII., "that proclamations made benefit of clergy, if he was convicted
by the king's highness, by the advice of of any clergyable felony whatever.-
his honorable council, should be made
and kept as though they were made by
authority of Parliament." It repeals also (12) But by the present criminal code
the extraordinary statute De Bigamis, of France, robbery, without murder or
4 Edw. I., st. 3, c. 5, which enacted, violence, is not capital. Code Penal, 1.
that if any man married a widow, or 3, t. 2, ch. 2, s. 1.

[CHRISTIAN.]

sixty have been declared, by act of Parliament,b to be felonies without benefit of clergy; or, in other words, to be worthy of instant death. So dreadful a list, instead of diminishing, increases the number of offenders. The injured, through com[19] passion, will often forbear to prosecute; juries, through compassion, will sometimes forget their oaths, and either acquit the guilty or mitigate the nature of the offense; and judges, through compassion, will respite one half of the convicts, and recommend them to the royal mercy. Among so many chances of escaping, the needy and hardened offender overlooks the multitude that suffer; he boldly engages in some desperate attempt, to relieve his wants or supply his vices; and if, unexpectedly, the hand of justice overtakes him, he deems himself peculiarly unfortunate in falling at last a sacrifice to those laws which long impunity has taught him to contemn."

b See Ruff head's index to the statutes (tit. Felony), and the acts which have since been made.

(13) It is unnecessary to say that the number of offenses punishable with death is now very small, and that the observations in the text are no longer

16

applicable. A table of the crimes still punishable capitally is given in the Appendix to this volume (Ã).

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CHAPTER II.

OF THE PERSONS CAPABLE OF COMMITTING CRIMES.

pable of

crimes.

HAVING in the preceding chapter considered in general the Persons canature of crimes and punishments, we are next led, in the order committing of our distribution, to inquire what persons are, or are not, capable of committing crimes; or, which is all one, who are exempted from the censures of the law upon the commission of those acts which in other persons would be severely punished. In the process of which inquiry we must have recourse to particular 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.

there must

lawful act

All the several pleas and excuses which protect the commit- In all cases ter of a forbidden act from the punishment which is otherwise be a vicious annexed thereto may be reduced to this single consideration, will, and unthe want or defect of will. An involuntary act, as it has no consequent claim to merit, so neither can it induce any guilt; the concur- thereon. rence 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 [ 21 ] complete crime cognizable by human laws, there must be botn a will and an act. For though, in foro conscientia, 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 can not punish for what it can not 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.

Cases

where the

Now there are three cases in which the will does not join with the act: 1. Where there is a defect of understanding. will does not For where there is no discernment, there is no choice; and join with the where there is no choice, there can be no act is nothing else but a determination of one's VOL. IV.-B

act.

of the will, which choice to do or to

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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 offenses 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 loathes 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 infancy, idiocy, lunacy, and intoxication, which fall under the first class; misfortune, and [22] ignorance, which may be referred to the second; and compulsion or necessity, which may properly rank in the third.

I. Defect of understanding. 1st. Infancy.

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. What the age of discretion is, in various nations, is matter of some variety. The civil 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 upward. The period of pueritia, or childhood, was again subdivided into two equal parts: from seven to ten and a half was ætas infantiæ proxima; from ten and a half to fourteen was atas pubertati proxima. During the first stage of infancy and the next half stage of childhood, infantiæ proxima, they were not punishable for any crime. During the other half stage of childhood, approaching to puberty, from ten and a 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 rigor of the law. During the last stage (at the age of puberty, and afterward), 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 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 offenses ;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 [23] commit), for these an infant, above the age of fourteen, is

a 1 Hawk., P. C., 2.

b Inst., 3, 20, 10.

e Ff., 29, 5, 14, 50, 17, 111, 47, 2, 23. d 1 Hal., P. C., 20, 21, 22.

equally liable to suffer as a person of the full age of twenty

one.

* LL. Athelstan. Wilk., 65.

Mirr., c. 4, § 16; 1 Hal., P. C., 27.
Dalt. Just., c. 147.

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 atas 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 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 ætatem." Under seven years of age, indeed, an infant can not be guilty of felony, for then a felonious discretion is almost an impossibility in nature; but at eight years old he may be guilty of felony. Also, under fourteen, though an infant shall be primâ 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 burned 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 good and evil. And there [ 24 1 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. Thus, also, in very modern times, a boy of ten years old was convicted on his own confession of murdering his bed-fellow, there appearing in his whole behavior 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.j

b 1 Hal., P. C., 26, 27.

i Emlyn on 1 Hal., P. C., 25.
j Foster, 72.

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