great penalties are more often obeyed and kept, than laws made with extreme punishments." Happy had it been for the nation, if the subsequent practice of that deluded princess in matters of religion, had been correspondent to these sentiments of herself and parliament, in matters of state and government! We may further observe that sanguinary laws are a bad symptom of the distemper of any state, or at least of its weak constitution. The laws of the Roman kings, and the twelve tables of the decemviri, were full of cruel punishments: the Porcian law, which exempted all citizens from sentence of death, silently abrogated them all. In this period the republic flourished: under the emperors severe punishments were revived; and then the empire fell. (9)

It is moreover absurd and impolitic to apply the same punishment 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 a weak and [*18] cruel surgeon, who cuts off every limb, which through ignorance or indolence he will not attempt to cure. It has been therefore ingeniously proposed, (z) 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 offences 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: (a) 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 ent 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 murderers. This 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

(9) [The most admirable and excellent statute ever passed by the English legislature is the 1 Edw. VI, c. 12. In the preamble it states, in a beautiful and simple strain of eloquence, that "Nothing is more godly, more sure, more to be wished and desired betwixt a prince, the supreme head and ruler, and the subjects whose governor and head he is, than on the prince's part great clemency and indulgency, and rather too much forgiveness and remission of his Loyal power and just punishment, than exact severity and justice to be showed; and on the sabjects' behalf, that they should obey rather for love, and for the necessity and love of a king and prince, than for fear of his strait and severe laws. But as in tempest or winter one course and garment is convenient, in calm or warm weather a more liberal case or lighter garment both may and ought to be followed and used; so we have seen divers strait and sore laws made in one parliament (the time so requiring), in a more calm and quiet reign of another prince by the like authority and parliament taken away," &c. It therefore repeals every statute which has created any treason since the 25 Edw. III, st. 5, c. 2. It repeals "all and every act of parliament concerning doctrine or matters of religion." It repeals every felony created by the legislature, during the preceding long and cruel reign of Henry VIII. It repeals the statute 31 Hen. VIII, that proclamations made by the king's highness, by the advice of his honorable counsel, should be made and kept as though they were made by authority of parliament." It repeals also the extraordinary statute de bigamis, 4 Edw. I. st. 3, c. 5, which enacted, that if any man married a widow, or married a second wife after the death of the first, he should be deprived of the benefit of clergy, if he was convicted of any clergyable felony whatever.]

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 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. (10) *The injured, through compassion, will often forbear to prosecute; juries, through compassion, will sometimes forget their oaths, [*19] and either acquit the guilty or mitigate the nature of the offence; 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.

CHAPTER II.

OF THE PERSONS CAPABLE OF COMMITTING CRIMES.

HAVING, in the preceding chapter, considered in general the nature of crimes and punishments, we are led next, in the order 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.

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 action either praiseworthy or culpable. Indeed, to make a complete crime cognizable by human laws, [*21] there must be both a will and an act. For, though, in foro conscientice, 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 civi 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 discernment, there is (b) See Ruffhead's index to the statutes, (tit. Felony), and the acts which have since been made.

(10) The legislature has at length been brought to see this truth, and has greatly diminished this fearful list.

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 infancy, idiocy, lunacy, and intoxication, which fall under the first class; misfortune and ignorance, which may be referred to the second; and compulsion or necessity, which [22] 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 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 upwards. The period of pueritia, or childhood, was again subdivided into two equal parts: from seven to ten and an half was ætas infantiæ proxima; from ten and an half to fourteen, was ætas pubertati proxima. During the first stage of infancy, and the next half stage of childhood, infantia proxima, they were not punishable for any crime. () 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 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 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 until 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 [*23] 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 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 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 (a) 1 Hawk. P. C. 2. (b) Inst. 3. 20. 10. (c) Ff. 29. 5. 14. 50. 17 111. 47. 9. 23. (d) 1IIal. P. C. 20, 21, 22 (e) LL. Athelstan. Wilk. 65. (f) Mir. c. 4, § 16. 1 Hal. P. C. 27.

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 dol capax, and could discern between good and evil, he may be convicted and suffer death. (1) 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 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 [*24 ] 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 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. () 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.

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) (2) 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 (i) Emlyn on 1 Hal. P. C. 25.

(g) Dalt. Just. c. 147. () Foster, 72.

(h) 1 Hal. P. C. 26, 27.

(k) 3 Inst. 6.

(1) See upon this subject, State v. Goin, 9 Humph. 175; People v. Randolph, 2 Park. C. K. 174; Commonwealth v. Green, 2 Pick. 380. A male child under the age of fourteen is supposed incapable of committing a rape; but in Ohio it has been decided that this is but a presumption which may be overcome by evidence of maturity. Williams v. State, 14 Ohio, 222. So he may be convicted of an assault with intent to commit a rape. People v. Randolph, 2 Park. C. R. 174. An infant is liable civilly for his torts. Humphrey v. Douglass, 10 Vt. 71; Bullock v. Babcock, 3 Wend. 391; Neal v. Gillett, 23 Conn. 437. And this even though under fourteen years of age. Huchting v. Engel, 17 Wis. 230.

(2) [It is not every frantic and idle humor 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 a 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 if 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 produce 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-general, in Lord Ferrer's Case, 19 How. St. Tr. 947, 948; et per Lawrence, J., 3 Burn, J., 24th ed. 312, 313.]

It has been sometimes supposed where insanity is set up as a defence in a criminal case, that the defendant takes upon himself the burden of proof to establish the defence, and that he must make it out beyond a reasonable doubt; but this idea is now exploded. The burden of proof rests upon the prosecution throughout, and a presumption of innocence all the while attends the prisoner, and entitles him to an acquittal if the jury are not reasonably satisfied of his guilt. A reasonable doubt of the prisoner's capacity to commit the crime entitles him as justly to an acquittal as a reasonable doubt upon any other branch of the case; and this fact is fully recognized by the later authorities. People v. McCann, 16 N. Y. 58 Commonwealth

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 non-sane memory, execution shall be stayed: for, preadventure, says the humanity of the English law, had the prisoner been of sound memory, he [*25] might have alleged *something in stay of judgment or execution. (1)* 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. But this savage and inhuman law was repealed by the statute 1 and 2 P. and M. c. 10. For, as is observed by Sir Edward Coke, (n) "the execution of an offender is, for example, ut pana 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 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. (0) 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 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 acts, (7) a method is chalked out for imprisoning, chaining, and sending them to their proper homes.

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 offence, rather *than as an excuse for any criminal misbehaviour. A drunkard, says [*26] Sir Edward Coke, (r) who is voluntarius dæmon, 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 mischiev

(1) 1 Hal. 1. C. 34. (m) 33 H. VIII, c. 20. (p) Bro. Abr. t. Corone, 101.

(q) 17 Geo. II, c. 5.

(n) 3 Inst. 6.

(0) 1 Hal. P. C. 31.
(s) Sp. L. b. 14, c. 10.

(r) 1 Inst. 217.

r. Kimball, 24 Pick. 373; Commonwealth v. Dana, 2 Met. 340; State v. Marler, 2 Ala. 43; Hopps v. People, 31 Ill. 385; People v. Garbutt, 17 Mich. 23. In the case last cited it is said that the prosecution" are at liberty to rest upon the presumption of sanity until proof of the contrary condition is given by the defence. But when any evidence is given which tends to overthrow that presumption, the jury are to examine, weigh and pass upon it with the understanding that, although the initiative in presenting the evidence is taken by the defence, the burden of proof upon this part of the case, as well as upon the other, is upon the prosecution to establish the conditions of guilt." And see per Rolfe, B., 3 C. and K. 188; State v. Klinger, 43 Mo. 127; State v. Hundley, 46 Mo. 414.

As to the degree of mental unsoundness which shall excuse a person from punishment for his acts, the works on medical jurisprudence and insanity will need to be consulted, and the case of Freeman v. People, 4 Denio, 9, and the Trial of Huntington, will be found instructive, though they will probably leave upon the mind a painful sense of the difficulties surrounding this whole subject, and the impossibility of laying down definitions and abstract rules which can be casily and safely applied in practice. See also McNaughton's Case, 10 Cl. and Fin. 200.