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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 :- 1. Infancy. II. Non compos mentis. III. Subjection to the power of others. IV, Ignorance.

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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. :($) 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

cumspect; distinguishing with greater nicety the several degrees of crimes.

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 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 case. 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.(0) 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)

(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 expressly Lit. s. 104, 259.

named. (d) I Hale 20.

(k) 4 Bac. Abr. 591. Co. Lit. 357. (e) 4 Bla. Com. 23. i Hale 20. Co. 1 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. i Hawk. c. 1. (g) 1 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, 1 Hale 27, (edit. subject to corporal punishment by 1800) note (e).

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 years of age, was convicted, before Lord Chief Justice Willes, for the murder of a girl of about five years of age, and received sentence of death; but the Chief Justice, out of regard to the tender years of the prisoner, respited execution till he should have an opportunity of taking the opinion of the rest of the judges, whether it was proper to execute him or not, upon the special circumstances of the case ; which he reported to the judges at Serjeants' Inn in Michaelmas Term following.

by a boy of ten (n) Dr, and Stu. c. 26. Co. Lit. 79, before which the party was not pre171, 247. Dalt. 476, 505. i Hale 25. sumed to be doli capax. 4. Infantia, 9 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. 1 Hale 17-19. ments, distinguished the ages into (p) Dalt. Just. c. 147. four ranks :-). Ætas pubertatis ple- (q) Dean's case, 1 Hale 25, note (u). ng, 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. Corane, 118. doli capaces. 3. Ælas puberlati prox- (1) Alice de Waldborough's case, I ima; but in this the Roman lawyers Hale 26. were divided, some assigoing it to ten (u) i Hale 630. Fears and a balf, others to cleven ;

years old.

The boy and girl were parish children, put under the care of a parishioner, at whose house they were lodged and maintained. On the day the murder happened, the man of the house and his wife went out to their work early in the morning, and left the children in bed together. When they returned from work, the girl was missing; and the boy, being asked what was become of her, answered that he had helped her up and put on her clothes, and that she was gone he knew not whither. Upon this, strict search was made in the ditches and pools of water near the house, from an apprehension that the child might have fallen into the water. During this search, the man, under whose care the children were, observed that a heap of dung near the house had been newly turned up; and, upon removing the upper part of the heap, he found the body of the child about a foot's depth under the surface, cut and mangled in a most barbarous and horrid manner. Upon this discovery, the boy, who was the only person capable of committing the fact, that was left at home with the child, was charged with the fact, which he stiffy denied. When the coroner's jury met, the boy was again charged, but persisted still to deny the fact. At length, being closely interrogated, he fell to crying, and said he would tell the whole truth. He then said that the child had been used to foul herself in bed; that she did so that morning, (which was not true, for the bed was searched and found to be clean,) that thereupon he took her out of the bed and carried her to the dung-heap, and with a large knife, which he found about the house, cut her in the manner the body appeared to be mangled, and buried her in the dung-heap; placing the dung and straw that was bloody under the body, and covering it up with what was clean ; and having so done, he got water and washed himself as clean as he could. The boy was the next morning carried before a neighbouring justice of the peace, before whom he repeated his confession, with all the circumstances he had related to the coroner and his jury. The justice of the peace very prudently deferred proceeding to a commitment, until the boy should have an opportunity of recollecting himself. Accordingly he warned him of the danger he was in if he should be thought guilty of the fact he stood charged with, and admonished him not to wrong himself: and then ordered him into a room where none of the crowd that attended should have access to him. When the boy had been some hours in this room, where victuals and drink were provided for hins, he was brought a second time before the justice, and then he repeated his former confession :-upon which he was committed to gaol.

On the trial, evidence was given of the declarations before mentioned to have been made before the coroner and his jury, and before the justice of the peace; and of many declarations to the same purpose which the boy made to other people after he came to gaol, and even down to the day of his trial; for he constantly told the same story in substance, commonly adding that the devil put him upon committing the fact. Upon this evidence, with some other circumstances tending to corroborate the confessions, he was convicted.

Upon this report of the chief justice, the judges, having taken time to consider of it, unanimously agreed, 1. That the declarations stated in the report were evidence proper to be left to the jury. 2. That, supposing the boy to have been guilty of this fact, there were so many circumstances stated in the report which were undoubtedly tokens of what Lord Hale calls a mischievous discretion, that he was certainly a proper subject for capital punishment, and ought to suffer; for it would be of very dangerous consequence to have it thought that children may commit such atrocious crimes with impunity. That there are many crimes of the most heinous pature, such as (in the present case) the murder of young children, poisoning parents or masters, burning houses, &c. which children are very capable of committing; and which they may in some circumstances be under strong temptations to commit; and therefore though the taking away the life of a boy of ten years old might savour of cruelty, yet, as the example of that boy's punishment might be a means of deterring other children from the like offences, and as the sparing the boy, merely on account of his age, would probably have a quite contrary tendency; in justice to the public, the law ought to take its course; unless there remained any doubt touching his guilt. In this general principle all the judges concurred: but two or three of them, out of great tenderness and caution, advised the chief justice to send another reprieve for the prisoner ; suggesting that it might possibly appear, on farther inquiry, that the boy had taken this matter upon himself at the instigation of some person or other, who hoped by this artifice to screen the real offender from justice.

Accordingly the chief justice granted one or two more reprieves; and desired the justice of the peace who took the boy's examination, and also some other persons, in whose prudence he could confide, to make the strictest inquiry they could into the affair, and report to him. At length he, receiving no farther light, determined to send no more reprieves, and to leave the prisoner to the justice of the law at the expiration of the last; but, before the expiration of that reprieve, execution was respited till further order, by warrant from one of the secretaries of state : and at the summer assizes, 1757, the prisoner had the benefit of His Majesty's pardon, upon condition of his entering immediately into the sea service (w)

It is said that an act making a new felony does not extend to How far staan infant under the age of discretion, namely, fourteen years old ;(x) to cases of and that general statutes which give corporal punishment are not infancy, to extend to infants; and that, therefore, if an infant be convicted in ravishment of ward, he shall not be imprisoned, though the (1) York's case, Fost. 70, et sequ. case, Plowd. Com. 465. a.

And see (3) 1 Hale 706. Eyston and Stud's 1 Hale 21, 22. Bac. Ab. Infancy (H).

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