tables of the decemviri, (25) were full of cruel punishments: the Porcian law, which exempted all citizens from sentence of death, silently abrogated them all. In this period the republic flourished; under the emperors severe punishments were revived; and then the empire fell.(26)

It is moreover absurd and impolitic to apply the same punishment to crimes of different malignity. A multitude of sanguinary laws (besides the doubt that may be entertained concerning the right of making them) do likewise prove a manifest defect either in the wisdom of the legislative or the strength of the executive power. It is a kind of quackery in government, and argues a want of solid skill, to apply the same universal remedy, the ultimum supplicium,(27) to every case of difficulty. It is, it must be owned, much *18] easier to extirpate than to amend mankind; yet *that magistrate must be esteemed both a weak and a cruel surgeon who cuts off every limb which, through ignorance or indolence, he will not attempt to cure. It has been therefore ingeniously proposed, (2) that in every state a scale of crimes should be formed, with a corresponding scale of punishments, descending from the greatest to the least; but, if that be too romantic an idea, yet at least a wise legislator will mark the principal divisions and not assign penalties of the first degree to offences of an inferior rank. Where men see no distinction made in the nature and gradations of punishment, the generality will be led to conclude there is no distinction in the guilt. Thus in France the punishment of robbery, either with or without murder, is the same; (a) hence it is that though perhaps they are therefore subject to fewer robberies, yet they never rob but they also murder. (28) 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, besides the additional terrors of a speedy execution and a subsequent exposure or dissection, robbers have a hope of transportation, which seldom is extended to murderers. This

(z) Beccar. c. 6.

(a) Sp. L. b. 6, c. 16.

(25) [Ten men.]

(26) The most admirable and excellent statute ever passed by the English legislature is the I Edw. VI. c. 12. In the preamble it states, in a beautiful and simple strain of eloquence, that "Nothing is more godly, more sure, more to be wished and desired betwixt a prince, the supreme head and ruler, and the subjects whose governor and head he is, than on the prince's part great clemency and indulgency, and rather too much forgiveness and remission of his royal power and just punishment, than exact severity and justice to be showed; and, on the subjects' behalf, that they should obey rather for love, and for the necessity and love of a king and prince, than for fear of his strait and severe laws. But as in tempest or winter one course and garment is convenient, in calm or warm weather a more liberal case or lighter garment both may and ought to be followed and used, so we have seen divers strait and sore laws made in one parliament (the time so requiring) in a more calm and quiet reign of another prince by the like authority and parliament taken away," etc. It therefore repeals every statute which has created any treason since the 25 Edw. III. st. 5, c. 2. It repeals "all and every act of parliament concerning doctrine or matters of religion." It repeals every felony created by the legislature during the preceding long and cruel reign of Henry VIII. It repeals the statute 31 Hen. VIII., "that proclamations made by the king's highness, by the advice of his honorable council, should be made and kept as though they were made by authorty of parliament." It repeals also the extraordinary statute de bigamis [Of those guilty f bigamy], (4 Edw. I. st. 3, c. 5,) which enacted that if any man married a widow, or married a second wife after the death of the first, he should be deprived of the benefit of clergy [Now abolished by stat. 7 & 8 Geo. IV. c. 28, § 6] if he was convicted of any clergyable felony whatever.-CHRISTIAN.

(27) [The severest or capital punishment.]

(28) This is not now the law of France. By the present Criminal Code, founded on the Code Napoleon, robbery without murder has ceased to be a capital offence. And the result mentioned by the learned judge has ceased also; nothing is more common now than instances of robberies without murder in France.-CHITTY.

has the same effect here as in China; in preventing frequent assassination and slaughter.

Yet, though in this instance 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 successive 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 a hundred and sixty have been declared by act of parliament (b) to be felonies without benefit of clergy; or, in other words, to be worthy of instant death. (29) So dreadful a list, instead of diminishing, increases the number of offenders. *The injured, through [*19 compassion, will often forbear to prosecute; juries, through compassion, will sometimes forget their oaths, and either acquit the guilty or mitigate the nature of the offence; and judges, through compassion, will respite one-half of the convicts, and recommend them to the royal mercy. Among so many chances of escaping, the needy and hardened offender overlooks the multitude that suffer: he boldly engages in some desperate attempt to relieve his wants or supply 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.

CHAPTER II.

OF THE PERSONS CAPABLE OF COMMITTING CRIMES.

HAVING in the preceding chapter considered in general the nature of crimes and punishments, we are led next, in the order of our distribution, to inquire what persons are or are not capable of committing crimes; or, which is all one, who are exempted from the censures of the law upon the commission of those acts which, in other persons, would be severely punished. In the process of which inquiry, we must have recourse to particular and special exceptions; for the general rule is, that no person shall be excused from punishment for disobedience to the laws of his country, excepting such as are expressly defined and exempted by the laws themselves. (1)

All the several pleas and excuses which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto may be reduced to this single consideration, 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 its choice either to do or to avoid the fact in question, being the only thing *that renders human actions [*21 either praiseworthy or culpable. Indeed, to make a complete crime

(b) See Ruff head's index to the statutes (tit. Felony) and the acts which have since been made.

(29) The severity of the common law has been greatly mitigated by modern statutes. In England and in the United States the number of capital offences has been reduced to two-treason and murder in the first degree. See I Barbour's Crim. Law, p. 15 (1883). Darling v. Westmoreland, 52 N. H. 401, 407 (1872). Aldrich v. Wright, 53 N. H. 398, 415 (1873). Dodge v. People, 4 Neb. 220, 227 (1876). Robinson v. State, 8 Ohio Reports, 131, 171 (1857). In some of the States arson and rape are also capital offences.

(1) I Archbold's Crim. Pr. & Pl. 165. Barbour's Crim. Law vol. 1, 563. Id. vol. 2, 1029. Russell on Crimes, 9 Am. ed. vol. 1, *6.

cognizable by human laws, there must be both a will and an act. (2) For, though, in foro conscientiæ,(3) a fixed design or will to do an unlawful act is almost as heinous as the commission of it, yet, as no temporal tribunal can search the heart or fathom the intentions of the mind, otherwise than as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know. For which reason, in all temporal jurisdictions, an overt act, or some open evidence of an intended crime, is necessary, in order to demonstrate the depravity of the will, before the man is liable to punishment. And, as a vicious will without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no crime at all. So that, to constitute a crime against human laws, there must be first, a vicious will; and, secondly, an unlawful act consequent upon such vicious will.(4)

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 discernment 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. (5) 2. Where there is understanding and will sufficient residing in the party, but not called forth or exerted at the time of the action done; which is the case of all offences committed by chance or ignorance. Here the will sits neuter, and neither concurs with the act nor disagrees to it. 3. Where the action is constrained by some outward force and violence. Here the will counteracts the deed, and is so far from concurring with, that it loathes and disagrees to, what the man is obliged to perform. It will be the business of the present chapter briefly to consider all the several species of defect in will, as they fall under some one or other of

these general heads: as infancy, idiocy, lunacy, and intoxication, *22] which fall under the first class; misfortune and ignorance, which *may be referred to the second; and compulsion or necessity, which may properly rank in the third.

I. First we will consider the case 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. (a) (6) 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, (7) from the birth till seven years of age; pueritia,(8) from seven to fourteen; and pubertas,(9) from fourteen upwards. The period of pueritia, or childhood, was again subdivided into two equal parts: from seven to ten and a half was ætas infantiæ proxima;(10) from ten and a half

(a) 1 Hawk. P. C. 2.

(2) Myers v. The State, I Conn. 502, 505 (1816). Sevier v. The Justices of Washington County, 1 Peck's Tennessee Reports, 334, 360 (1824). Lawson's Criminal Defences, 552 (1885).

(3) [At the tribunal of conscience.]

(4) Robbins v. The State, 8 Ohio Reports, 131, 173 (1858). Commonwealth v. Presby, 14 Gray (Mass.) 65, 66. S. C. Lawson's Criminal Defences, vol. 3, 507. Lawson's Insanity as a Defence to Crime, 495, citing People v. McCann, 16 N. Y. 58. Queen v. Prince, L. R. Crown Cases Reserved, vol. 2, pp. 154, 164 (1875).

(5) Boardman v. Woodman, 47 N. H. 120, 147 (1866). Robbins v. The State, 8 Ohio St. 131, 173 (1857).

(6) Bassett's Crim. Pleading, 36, note 1. Waterman's Crim. Proc. vol. 1, 8, note 1, (1860).

(7) [Infancy.]

(8) [Childhood.]

(9) [Puberty.]

(10) [The age nearest infancy.]

to fourteen was atas pubertati proxima. (11) During the first stage of infancy and the next half-stage of childhood, infantia proxima, they were not punishable for any crime. (b) During the other half-stage of childhood, approaching to puberty, from ten and a 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. (c) 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 some cases privilege an infant under the age of twenty-one, as to common misdemeanors, so as to escape fine, imprisonment, and the like: and particularly in cases of omission, as not repairing a bridge, or a highway, and other similar offences; (d) for, not having the command of his fortune till twenty-one, he wants the capacity to do those things which the law requires. (12) 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 commit,) for these an infant, above *the [*23 age of fourteen, is equally liable to suffer as a person of the full age of twenty-one. (13)

With regard to capital crimes, the law is still more minute and circumspect; distinguishing with greater nicety the several degrees of age and discretion. By the ancient Saxon law, the age of twelve years was established for the age of possible discretion, when first the understanding might open; (e) and from thence till the offender was fourteen it was ætas pubertati proxima,(14) 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 supposed innocent, of any capital crime which he in fact committed. (15) But by the law, as it now stands, and has stood at least ever since 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. (16) 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 supplet ætatem."(17) Under seven years of age, indeed, an infant cannot be guilty of felony, (f)(18) for then a felonious dis

(b) Inst. 3, 20, 10.

(c) Ff. 29, 5, 14, 50, 17, 111, 47, 2, 23.

(d) 1 Hal. P. C. 20, 21, 22.

(e) LL. Athelstun. Wilk. 65.
(ƒ) Mirr. c. 4, § 16. 1 Hal. P. C. 27.

(11) [The age nearest puberty.]

(12) Cherry's Outline of Criminal Law, 17. I Archbold's Crim. Pr. & Pl. 14. Barbour's Crim. Practice (3 ed.) vol. 1, 567 (1883). Clark's Crim. Law, 51 (1894). For a case holding that an infant's property is liable to satisfy the fine and costs adjudged against him, upon his conviction for a misdemeanor, see Beasley v. The State, 2 Yerger (Tenn.) 481 (1831).

(13) Blackstone does not assert that an infant under the age of fourteen, if possessed of sufficient capacity to discern good from evil, may not be punished for misdemeanors. The rule, however, in this respect does not seem to be very well settled. In State v. Goin, 9 Humphreys (Tenn.) 175 (1850), it was held that a girl of twelve years could be punished for assault and battery. See note quoting the opinion in the above case in Archbold's Crim. Prac. vol. 1, pp. 13 & 14. Lewis' U. S. Crim. Law, 599 (1847). People v. Kendall, 25 Wendell (N. Y.) 399, 401 (1841). Clark's Crim. Law, 49 (1894). (14) [The age nearest puberty.]

(15) Archbold's Crim. Pr. & PÍ. vol. 1, 369 (1877).

(16) See Bassett's Crim. Pl. 36, note 6, and following cases cited, 3 Ala. 323. Willett V. Comm.. 13 Bush, 230. State v. Guild, 5 Halst. (10 N. J. L.) 163. State v. Doherty, 2 Tenn. So. Lewis' U. S. Crim. Law, 599 (1847).

(17) ["Malice is held equivalent to age."]

(18) All persons under seven years of age are absolutely exempted from criminal prosecution without regard to their mental capacity. Barbour's Crim. Law (3 ed.) vol.

cretion is almost an impossibility in nature; but at eight years old he may be guilty of felony.(g) Also, under fourteen, though an infant shall be prima facie (19) adjudged to be doli incapax, (20) yet if it appear to the court and jury that he was doli capax, (21) and could discern between good and evil, he may be convicted and suffer death. Thus a girl of thirteen has been burned 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 hid*24] ing manifested a consciousness of guilt, and a discretion *to discern between good and evil. (h) 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. (i) (22) Thus, also, in very modern times, a boy of ten years old was convicted on his own confession of murdering his bedfellow, there appearing in his whole behavior plain tokens of a mischievous discretion; and, as the sparing this boy merely on account of his tender years might be of dangerous consequence to the public by propagating a notion that children might commit such atrocious crimes with impunity, it was unanimously agreed by all the judges that he was a proper subject of capital punishment. (j) (23) But, in all such cases, the evidence of that malice which is to supply age ought to be strong and clear beyond all doubt and contradiction. (24)

II. The second case of a deficiency in will, which excuses 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 “furiosus furore solum punitur."(25) In criminal cases, therefore, idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities: no, not even for treason itself. (k)(26) Also, if a man in his sound memory commits a capital offence,

1, *263. The law raises a presumption that such persons are incapable of committing a felony, and evidence to the contrary is not admissible. State v. Floyd, 13 Iredell (N. Č.) 382, 386 (1852). See Waterman's Crim. Proc. vol. 1, 9 note (1860). Archbold's Crim. Practice, vol. 1, 10, note (1). Lewis' U. S. Crim. Law, 599 (1847). Archbold's Crim.

Prac. (8 ed.) vol. I, II, note (1) (1877).

(19) [Immediately-at first sight.]

(20) [Incapable of guile.]

(21) [Capable of guile.]

(22) Archbold's Crim. Pr. & Pl. (8 ed.) vol. I, p. 12.

(23) A boy of the age of twelve years may be convicted of murder on his own confessions, corroborated by other evidence, and executed. State v. Guild, 5 Halsted (N. J.) 163, 189 (1828). Godfrey v. The State, 31 Ala. 323, 328 (1858). See Bishop's New Crim. Law, vol. I, 371 (1892). Archbold's Crim. Pr. & Pl. vol. 1, 15 (1877).

(24) The evidence of such capacity need not be independent and outside of the facts of the transaction itself. State v. Toney, 15 S. C. 409, 414 (1881). Wharton's Crim. Law (10 ed.) 68, note 6 and cases cited. State v. Adams, 76 Mo. 355, 357 (1882). Bishop's New Crim. Law, vol. 1, 370. Lewis' U. S. Crim. Law, 600 (1847). McKinney's Justice (4 ed.) vol. 1, 54. Archbold's Crim. Pr. & Pl. (8 ed.) vol. 1, p. 22. Angelo v. People, 96 Ill. 209, 210 et seq. (1880). State v. Tice, 90 Mo. 112 (1886). Law v. The Commonwealth, 75 Va. 885, 890 (1881).

(25) [“A madman is punished by his madness alone."]

(26) The most commonly accepted doctrine as to the validity of insanity as a defence to crime is that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to the satisfaction of the jury. To establish a defence on the ground of insanity, it must be clearly proved