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human actions either praifeworthy or culpable. Indeed, to make a complete crime, cognizable by human laws, there must be both a will and an act. For though, in foro confcientiae, a fixed defign or will to do an unlawful act is almost as heinous as the commif'fion of it, yet, as no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwife than as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know. For which reason in all temporal jurifdictions an overt act, or fome open evidence of an intended crime, is neceffary, in order to demonftrate the depravity of the will, before the man is liable to punishment. And, as a vitious will without a vitious act is no civil crime, fo, on the other hand, an unwarrantable act without a vitious will is no crime at all. So that to constitute a crime against human laws, there must be, first, a vitious will; and, fecondly, an unlawful act confequent upon fuch vitious 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 difcernment, there is 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 fufficient, refiding 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 fits neuter; and neither concurs with the act, nor difagrees to it. 3. Where the action is constrained by fome outward force and violence. Here the will counteracts the deed; and is fo far from concurring with, that it loaths and difagrees to, what the man is obliged to perform. It will be the business of the prefent chapter briefly to confider all the feveral species of defect in will, as they fall under fome one or other of these general heads: as infancy, idiocy, lunacy, and intoxication, which fall under the firft clafs; misfortune, and


ignorance, which may be referred to the fecond; and compulfion or neceffity, which may properly rank in the third.

I. FIRST, we will confider the cafe of infancy, or nonage; which is a defect of the understanding. Infants, under the age of difcretion, ought not to be punished by any criminal profecution 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 feven 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 proxima. During the first stage of infancy, and the next half ftage of childhood, infantiae 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 rigor of the law. 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 fome cases privilege an infant, under the age of twenty one, as to common misdemefnors; fo 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 those things, which the law requires. But where there is rious breach of the peace, a riot, battery, or the like, (which infants, when full grown, are at least as liable as others to

a 1 Hawk. P. C. 2.

Inft. 3.20.10.

C 1 Hal. P. C. 20, 21, 22.

any noto


commit) for these an infant, above the age of fourteen, is equally liable to fuffer, as a perfon of the full age of twenty one.

WITH regard to capital crimes, the law is still more minute and circumfpect; distinguishing with greater nicety the several degrees of age and difcretion. By the antient Saxon law, the age of twelve years was established for the age of poffible difcretion, when first the understanding might opena: 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 ftage 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 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 fupplet aetatem." Under seven years of age indeed an infant cannot be guilty of felony; for then a felonious difcretion 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 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 fentenced 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 be f Dalt. Juft. c. 147.

LL. Athelstan. Wilk. 65.

Mirr. c. 4. §. 16. 1 Hal. P. C. 27.


tween good and evil. And there was an inftance 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 mischievous difcretion: and, as the fparing this boy merely on account of his tender years might be of dangerous confequence to the 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 subject of capital punishment. But, in all fuch cases, the evidence of that malice, which is to supply age, ought to be strong and clear beyond all doubt or contradiction.

II. THE fecond cafe of a deficiency in will, which excuses from the guilt of crimes, arifes alfo from a defective or vitiated understanding, viz. in an idiot or a lunatic. For the rule of law as to the latter, which may eafily 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 these incapacities: no, not even for treafon itself. Alfo, 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 stayed: for peradventure, says the humanity of the English law, had the prisoner been of found memory, he might have alleged fome

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thing in stay of judgment or execution'. Indeed, in the bloody reign of Henry the eighth, a statute was made", which enacted, that if a perfon, being compos mentis, fhould commit high treason, and after fall into madness, he might be tried in his abfence, and should fuffer death, as if he were of perfect memory. But this favage and inhuman law was repealed by the statute 1 & 2 Ph. & M. c. 10. "For, as is observed by fir Edward "Coke", the execution of an offender is for example, ut poena “ad paucos, metus ad omnes perveniat: but so it is not when "a madman is executed; but fhould 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 fhall be tried by a jury. And if he be fo found, a total idiocy, or absolute insanity, excufes from the guilt, and of course from the punishment, of any criminal action committed under fuch deprivation of the fenfes: but, if a lunatic hath lucid intervals of underftanding, he shall answer for what he does in those intervals, as if he had no deficiency. Yet, in the case of abfolute 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 fuffered to go loofe, to the terror of the king's fubjects. It was the doctrine of our antient law, that persons deprived of their reafon might be confined till they recovered their fenfes, without waiting for the forms of a commiffion or other special authority from the crown: and now, by the vagrant acts, a method is chalked out for imprisoning, chaining, and sending them to their

proper homes.

III. THIRDLY; as to artificial, voluntarily contracted madnefs, by drunkenness or intoxication, which, depriving men of their reafon, puts them in a temporary phrenzy; our law looks upon this as an aggravation of the offence, rather than as an

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