yet that magiftrate must be efteemed both a weak and a cruel furgeon, who cuts off every limb, which through ignorance or indolence he will not attempt to cure. It has been therefore ingeniously propofed', that in every state a scale of crimes should be formed, with a correfponding scale of punishments, descending from the greatest to the leaft: but, if that be too romantic an idea, yet at least a wise legislator will mark the principal divisions, and not affign penalties of the first degree to offences of an inferior rank. Where men fee no distinction made in the nature and gradations of punishment, the generality will be led to conclude there is no diftinction in the guilt. Thus in France the punishment of robbery, either with or without murder, is the fame*: hence it is, that though perhaps they are therefore fubject 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, befides the additional terrors of a speedy execution, and a fubfequent exposure or diffection, robbers have a hope of tranfportation, which feldom is extended to murderers. This has the fame effect here as in China; in preventing frequent afsaffination and slaughter.

YET, though in this inftance 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 fucceffive 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 an hundred and fixty have been declared by act of parliament to be felonies without benefit of clergy; or, in other words, to be worthy of inftant death. So dreadful a list, instead of diminishing, increases the number of

z Beccar. c. 6.

2

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

See Ruffhead's index to the ftatutes, (tit. felony) and the acts which have fince been made.

offenders.

offenders. The injured, through compaffion, will often forbear to profecute juries, through compaffion, will fometimes forget their oaths, and either acquit the guilty or mitigate the nature of the offence and judges, through compaffion, will respite one half of the convicts, and recommend them to the royal mercy. Among so many chances of efcaping, the needy or hardened offender overlooks the multitude that fuffer; he boldly engages in fome desperate attempt, to relieve his wants or fupply 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.

C 2

CHAPTER THE SECOND.

OF THE PERSONS CAPABLE OF COMMITTING CRIMES.

HAY

AVING, in the preceding chapter, confidered in general the nature of crimes, and punishments, we are next led, in the order of our diftribution, to enquire what perfons are, or are not, capable of committing crimes; or, which is all one, who are exempted from the cenfures of the law upon the commiffion of those acts, which in other perfons would be feverely punished. In the process of which enquiry, we must have recourse to particular and special exceptions: for the general rule is, that no perfon fhall be excufed from punishment for difobedience to the laws of his country, excepting fuch as are expreffly defined and exempted by the laws themfelves.

ALL the feveral pleas and excuses, which protect the committer of a forbidden act from the punishment which is otherwife annexed thereto, may be reduced to this fingle confideration, 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 it's choice either to do or to avoid the fact in question, being the only thing that renders

human

human actions either praiseworthy 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 design or will to do an unlawful act is almost as heinous as the commiffion of it, yet, as no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwife than as they are demonftrated by outward actions, it therefore cannot punish for what it cannot know. For which reafon in all temporal jurifdictions an overt act, or some open evidence of an intended crime, is necessary, 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 cafes, 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 disagrees 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 present chapter briefly to confider all the several 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 first clafs; misfortune, and

ignorance,

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 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 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 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 cafes privilege an infant, under the age of twenty one, as to common mifdemefnors; so as to escape fine, imprisonment, and the like: and particularly in cases of omiffion, as not repairing a bridge, or a highway, and other similar 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 least as liable as others to

a

I Hawk. P. C. z.

Inft. 3.20.10.

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

commit)