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13 G. 3. C. 32 13 G. 3. c. 33 16 G. 3. c. 30 18 G. 3. c. 19. (s. 7, 8.) (partially) 19 G. 3. c. 74. (partially) 21 G. 3. c. 68 21 G. 3. c. 69 22 G. 3. c. 58 30 G. 3. c. 48 31 G. 3. c. 35 31 G. 3. c. 61 33 G. 3. c. 67. s. 2 33 G. 3. c. 67. (5 & 6.) (partially) 35 G. 3. c. 67 36 G. 3. c. 9. part of s. 1 & 2 36 G. 3. c. 9. (s. 3. to the end) (par

tially) 39 G. 3. c. 85 39 & 40 G. 3. c. 77. (s. 1, 2 & 5.)

(partially) 41 G. 3. c. 24. 42 G. 3. c. 67 42 G. 3. c. 107 43 G. 3. C. 58 43 G. 3. c. 59. (s. 3.) (partially) 43 G. 3. c. 113 44 G. 3. c. 92. (s. 7, 8.) (partially) 45 G. 3. c. 66 48 G. 3. c. 129 48 G. 3. c. 144 51 G. 3. c. 41 51 G. 3. c. 120 52 G. 3. c. 63

C. 130

52 G. 3. c. 64 52 G. 3. 53 G. 3. c. 125 53 G. 3. c. 162. (partially) 54 G. 3. c. 101 56 G. 3. c. 73 57 G. 3. c. 19. (s. 38.) (partially) 58 G. 3. c. 38. s. 1 58 G. 3. c. 70. (partially) 59 G. 3. c. 27 59 G. 3. c. 96 1 G. 4. c. 56 i G. 4. c. 90. s. 2 1 G. 4. c. 102 1 G. 4. c. 115 1 G. 4. c. 117 1 & 2 G. 4. c. 88 3 G. 4. c. 24 3 G. 4. c. 33 3 G. 4. c. 38. (partially) 3 G. 4. c. 38 3 G. 4. c. 114 3 G. 4. c. 126. (s. 60.) (partially) 3 G. 4. c. 126. (s. 128.) (partially) 4 G. 4. c. 46. (partially) 4G. 4. c. 53. (partially) 4 G. 4. c. 54. (partially) 6 G. 4. c. 19 6 G. 4. c. 56 6 G. 4. c. 94. (s. 7, 8, 9 & 10.) (par

tially) 7 G. 4. c. 69.

A

TREATISE

ON

Crimes and Misdemeanors.

BOOK THE FIRST.

OF PERSONS CAPABLE OF COMMITTING CRIMES,

OF PRINCIPALS AND ACCESSORIES,
AND OF INDICTABLE OFFENCES.

CHAPTER THE FIRST.

OF PERSONS CAPABLE OF COMMITTING CRIMES.

It is a general rule that no person shall be excused from punishment for disobedience to the laws of the country, unless he be expressly defined and exempted by the laws themselves. (a) The enquiry, therefore, as to those who are capable of committing crimes, will best be disposed of by considering the several pleas and excuses which may be urged on behalf of a person who has committed a forbidden act, as grounds of exemption from punishment.

Those pleas and excuses must be founded upon the want or Want or defect defect of will in the party by whom the act has been committed. of will. For without the consent of the will, human actions cannot be considered as culpable; nor where there is no will to commit an offence, is there any just reason why a party should incur the penalties of a law made for the punishment of crimes and offences. (b) The cases of want or defect of will seem to be reducible to four heads :-I. Infancy. II. Non compos mentis. III. Subjection to the power of others. IV. Ignorance.

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meanors,

Infants com

I. The full age of man or woman by the law of England is mitting misde- twenty-one years: (c) under which age a person is termed an infant,

and is exempted from punishment in some cases of misdemeanors and offences that are not capital. (d) But the nature of the offence will make differences which should be observed. Thus, if it be any notorious breach of the peace, as a riot, battery, or the like, an infant above the age of fourteen is equally liable to suffer as a person of the full age of twenty-one ; (e) and if an infant judicially perjure himself in point of age, or otherwise, he shall be punished for the perjury; and he may be indicted for cheating with false dice, &c. :(8) but if the offence charged by the indictment be a mere non-feazance (unless it be of such a thing as the party be bound to by reason of tenure or the like, as to repair a bridge, &c.) there, in some cases, he shall be privileged by his non-age, if under twenty-one, though above fourteen years; because laches in such a case shall not be imputed to him. (g)

It is said that if an infant of the age of eighteen years be convicted of a disseisin with force, yet he shall not be imprisoned ; (h) and the law is said to be, that though an infant at the age of eighteen, or even fourteen, by his own acts may be guilty of a forcible entry, and may be fined for the same, yet he cannot be imprisoned, because his infancy is an excuse by reason of his indiscretion ; and it is not particularly mentioned in the statute against forcible entries, that he shall be committed for such fine.(i) An infant cannot, however, be guilty of a forcible entry or disseisin by barely commanding one, or by assenting to one to his use; because every command

or assent of this kind by a person under such incapacity is void : but an actual entry by an infant into another's

freehold gains the possession and makes him a disseisor. (k) Infants com- With regard to capital crimes the law is more minute and cirmitting capital crimes.

cumspect; distinguishing with greater nicety the several degrees of age and discretion: though 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. (1) But within the age of seven years an infant cannot be punished for any capital offence, whatever circumstances of a mischievous discretion may appear ; for ex presumptione juris such an infant cannot have discretion ; and against this presumption no averment shall be admitted.(m)

On the attainment of fourteen years of age, the criminal actions of infants are subject to the same modes of construction as those

(c) It is the full age of male or fe- force of the general words of any male according to common speech. statute wherein he is not expresslyLit. s. 104, 259.

ned. (d) I Hale 20.

(k) 4 Bac. Abr. 591. Co. Lit. 357. (e) 4 Bla. Com. 23. I Hale 20. Co. I Hawk. P. C. c. 64. S. 35. Lit. 246 b. 2 Inst, 703.

(1) 4 Bla. Com. 23. (f) 3 Bac. Abr. 593. Sid. 253. (m) i Hale 27, 28. 1 Hawk. c. 1. (g) i Hale 20. 3 Bac. Abr. 591. s. i. note (1). 4 Bla. Com. 23. A par(h) I Hale 21.

don was granted to an infant within (i) 4 Bac. Abr. 591. Dalt. 302. Co. the age of seven years, who was inLit. 357. And see i Hawk. P.C. c. 64. dicted for homicide ; the jury having s. 35. that the infant ought not to be found that he did the fact before he imprisoned because he shall not be was seven years old. I Hale 27, (edit. subject to corporal punishment by 1800) note (e).

of the rest of society; for the law presumes them at those years to be doli capaces, and able to discern between good and evil, and therefore subjects them to capital punishments as much as if they were of full age.(n) But during the interval between fourteen years and seven, an infant shall be primâ facie deemed to be doli incapax, and presumed to be unacquainted with guilt; yet this presumption will diminish with the advance of the offender's years, and will depend upon the particular facts and circumstances of his

The evidence of malice, however, which is to supply age, should be strong and clear beyond all doubt and contradiction : but if it appear to the Court and jury that the offender was doli capax, and could discern between good and evil, he may be convicted and suffer death.(o) Thus, it is said that an infant of eight years old may be guilty of murder, and shall be hanged for it : (p) and where an infant between eight and nine years old was indicted, and found guilty of burning two barns, and it appeared upon examination that he had malice, revenge, craft, and cunning, he had judgment to be hanged, and was executed accordingly. (9)

An infant of the age of nine years, having killed an infant of the like age, confessed the felony; and, upon examination, it was found that he hid the blood and the body. The justices held that he ought to be hanged; but they respited the execution that he might have a pardon.(r) Another infant, of the age of ten years, who had killed his companion and hid himself was, however, actually banged; upon the ground that it appeared by his hiding that he could discern between good and evil; and malitia supplet ætatem.(s) And a girl of thirteen was burnt, for killing her mistress. (t)

In the case of rape, the law presumes that an infant under the age of fourteen years is unable to commit the crime ; and therefore it seems he cannot be guilty of it: but this is upon the. ground of impotency rather than the want of discretion ; for he may be a principal in the second degree, as aiding and assisting in this offence as well as in other felonies, if it appear by sufficient circumstances that he had a mischievous discretion. (u)

The following is an important case as to the capability of an infant of ten years old being guilty of the crime of murder; and as to the expediency of visiting such an offender with capital punishment. At Bury summer assizes, 1748, William York, a boy of ten Case of murder

by a boy of ten (n) Dr, and Stu. c. 26. Co. Lit. 79, before which the party was not pre- years old. 171, 247. Dalt. 476, 505. i Hale 25. sumed to be doli capax. 4. Infantia, 3 Bac. Abr. 581.

which lasts till seven years, within (0) I Hale 25, 27. 4 Bla. Com. 23. which

age there can be no guilt of a The civil law, as to capital punish- capital offence. i Hale 17–19. ments, distinguished the ages into (p) Dalt. Just. c. 147. four ranks :-1. Ætas puberlatis ple- (9) Dean's case, i Hale 25, note (u). na, which is eighteen years. 2. Ætas (r) i Hale 27. F. Corone 57. B. Copubertatis,or pubertas generally,which rone 133. is fourteen years, at which time per- (8) Spigurnal's case, 1 Hale 26. Fitz. sons were likewise presumed to be Rep. Corone, 118. doli capaces. 3. Ætas

puberlati prox- (1) Alice de Waldborough's case, ima; but in this the Roman lawyers Hale 26. were divided, some assigning it to ten (u) i Hale 630. years and a half, others to eleven ;

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