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various nations, is matter of fome variety. The civil law diftinguished the age of minors, or those under twenty-five years old, into three ftages: infantia, from the birth till feven years of age; pueritia, from feven to fourteen; and pubertas, from fourteen upwards. The period of pueritia, or childhood, was again fubdivided 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 proxima. During the first stage of infancy, and the next half stage of childhood, infantiae proxima, they were not punishable for any crime. During the other half ftage 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 utmoft rigour of the law. During the laft ftage (at the age of puberty, and afterwards) minors were liable to be punished, as well capitally, as otherwife.

THE law of England does in fome cafes privilege an infant, under the age of twenty-one, as to common misdemes. nors; so as to escape fine, imprisonment, and the like: and particularly in cafes of omiffion, as not repairing a bridge, or a highway, and other fimilar offences: for, not having the command of his fortune, till twenty-one, he wants the capacity to do thofe 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 leaft as liable as others to commit) for thefe an infant, above the age of fourteen, is equally liable to fuffer, as a perfon of [ 23 ] the full age of twenty-one.

WITH regard to capital crimes, the law is ftill more minute and circumfpect; distinguishing with greater nicety the feveral degrees of age and difcretion. By the antient Saxon law, the age of twelve years was established for the age of poffible discretion, when firft the understanding might open": and from thence till the offender was fourteen, it was aetas

b Inft. 3.20. 10.

Ff. 29. 5. 14. 50. 17. 111. 47. 2. 23.


d 1 Hal: P. C. 20, 21, 22.
e LL. Atbeiftan. Wilk. 65.


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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 fuppofed innocent, of any capital crime which he in fact committed. But by the law, as it now ftands, and has stood at least ever fince the time of Edward the third, the capacity of doing ill, or contracting guilt, is not fo 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 fupplet aetatem." Under feven Under seven years of age indeed an infant cannot be guilty of felony; for then a felonious discretion is almost an impoffibility in nature: but at eight years old he may be guilty of felony. Alfo, 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 difcern 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 manifefted a consciousness of guilt, and a discretion [24] to difcern between good and evil. 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 ". Thus alfo, in very modern times, a boy of ten years old was convicted on his own confeffion of murdering his bedfellow; there appearing in his whole behaviour plain tokens of a mifchievous difcretion; and, as the fparing this boy merely on account of his tender years might be of dangerous confequence to the g 1 Hal. P. C. 26, 27. Emlyn on I Hal. P. C, 25.

e Mir. c. 4. § 16. 1 Hal. P. C. 27.
§ Dalt. Just. c. 147.


public, by propagating a notion that children might commit fuch atrocious crimes with impunity, it was unanimously agreed by all the judges that he was a proper fubject of capital punishment', But, in all fuch cafes, the evidence of that malice which is to fupply age, ought to be strong and clear beyond all doubt and contradiction.

II. THE fecond cafe of a deficiency in will, which excufes 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 "furiofus furore folum punitur." In criminal cafes therefore idiots and lunatics are not chargeable for their own acts, if committed when under thefe incapacities: no, not even for treason itself k. Also, if a man in his found 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 prifoner becomes mad, he fhall not be tried; for how can he make his defence? If, after he be tried and found guilty, he lofes his fenfes before judgment, judgment fhall not be pronounced; and if, after judgment, he becomes of nonfane memory, execution fhall be ftayed: for peradventure, says the humanity of the English law, had the prifoner been of found memory, he might have alleged fomething in ftay of judgment or execution' (1). Indeed, in the bloody reign of Henry the eighth, a statute was made TM,

i Fofter, 72. k 3 Inft. 6.

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(1) If the punishment were lefs than death, and were inflicted apon a prifoner deprived of reafon, it would be unproductive of one of the great ends of punishment, the correction of the criminal. Human tribunals are only juftified in introducing the pain and evil of punishment, when it is likely to prevent that greater degree of evil, which would refult from the unrestrained commiffion of crimes.

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Book IV. which enacted, that if a perfon, being compos mentis, fhould commit high treason, and after fall iuto madness, he might be tried in his abfence, and fhould fuffer death, as if he were of perfect memory. But this favage and inhuman law was repealed by the ftatute 1 & 2 Ph. & M. c. 10. For, as is obferved by fir Edward Coke ", " the execution of an of"fender is for example, ut poena ad paucos, metus ad omnes "perveniat: but fo it is not when a madman is executed;

but fhould be a miferable fpectacle, 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 fhall be tried by a jury. And if he be fo found, a total idiocy, or abfolute infanity, excuses from the guilt, and of courfe from the punishment, of any criminal action committed under such deprivation of the fenses: but, if a lunatic hath lucid intervals of understanding, he fhall answer for what he does in thofe intervals, as if he had no deficiency. Yet, in the cafe of abfolute madmen, as they are not answerable for their actions, they fhould not be permitted the liberty of acting unless under proper control; and, in particular, they ought not to be fuffered to go locfe, to the terror of the king's subjects. It was the doctrine of our antient law, that perfons deprived of their reafon might be confined till they recovered their senses P, without waiting for the forms of a commiffion or other fpecial authority from the crown and now, by the vagrant acts, a method is chalked out for imprisoning, chaining, and fending them to their proper homes (2).

Inft. 6.



1 Hal. P. C. 31.

p Bro. Abr. tit. corone. 101.
9 17 Geo. II. c. 5.

(2) Where it is dangerous to permit a lunatic to go abroad, two juftices may order him to be apprehended and fecured, even with chains, if neceffary, and may fend him by a vagrant pass to the place of his fettlement; and may order fo much of his goods to be fold, or the rents of his lands to be received, as will discharge the expence incurred; but fuch fum must be accounted for at the next


III. THIRDLY; as to artificial, voluntarily contracted madness, by drunkenness or intoxication, which, depriving men of their reafon, pats them in a temporary phrenzy; our law looks upon this as an aggravation of the offence, rather than as an excufe for any criminal misbehaviour. A drunk [ 26 ] ard, fays fir Edward Coke', who is voluntarius daemon, hath no privilege thereby; but what hurt or ill foever he doth, his drunkenness doth aggravate it: nam omne crimen ebrietas, et incendit, et detegit. It hath been obferved, that the real ufe of ftrong liquors, and the abufe of them by drinking to excefs, depend much upon the temperature of the climate in which we live. The fame indulgence, which may be neceffary to make the blood move in Norway, would make an Italian mad. A German therefore, fays the president Montefquieu, drinks through cuftom, founded upon conftitutional neceffity; a Spaniard drinks through choice, or out of the mere wantonnefs of luxury and drunkenness, he adds, ought to be more feverely punished, where it makes men mischievous and mad, as in Spain and Italy, than where it only renders them ftupid 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, fhould receive "a double punishment; one for the crime itself, and the other for the ebriety which prompted him to commit it'. The Roman law indeed made great allowances for this vice: "per vinum delapfis capitalis poena remittitur “” But the law of England, confidering how easy it is to counterfeit this excufe, and how weak an excuse it is, (though real) will not suffer any man thus to privilege one crime by another w.

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feffions but this does not preclude the jurifdiction of the chancellor, or prevent any relation or friend from taking the lunatic under his care. 17 Geo. II. c. 5. $21.

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