either less or more than five years may be awarded as a sentence of penal servitude, the least sentence of penal servitude that can be awarded under that act, shall, in respect to any offence committed after the passing of this Act, be a period of five years; and where any person shall on indictment be convicted of any crime or offence punishable with penal servitude, after having been previously convicted of felony, or, in Scotland, of any crime (whether such previous conviction shall have taken place upon an indictment or under the provisions of the Act passed in the eighteenth and nineteenth of Victoria, chapter one hundred and twenty-six), the least sentence of penal servitude that can be awarded in such case shall be a period of seven years."

Sec. 4. If any holder of a license granted in the form in the schedule is convicted, either by verdict of a jury or upon his own confession, of any offence for which he is indicted, his license shall be forthwith forfeited by virtue of such conviction, or if any holder of a license granted under any of the Penal Servitude Acts shall, unless prevented by illness or other unavoidable cause, fail to report himself personally, if in Great Britain to the chief police station of the borough or police division, and if in Ireland to the constabulary station of the locality, to which he may go within three days after his arrival therein, and being a male subsequently once in each month at such time and place, in such manner and to such person as the chief officer of the constabulary force to which such station belongs shall appoint, or shall change his residence from one police district to another without having previously notified the same to the police or constabulary station to which he last reported himself, he shall be deemed guilty of a misdemeanor, and may be summarily convicted thereof, and his license shall be forthwith forfeited by virtue of his conviction, but he shall not be liable to any other punishment by virtue of such conviction.

Sec. 5. " Schedule (A.)"1. Fails to produce his license when required to do so by any judge, justice of the peace, sheriff, sheriff substitute, police or other magistrate before whom he may be brought charged with any offence, or by any constable or officer of the police in whose custody he may be, and also fails to make any reasonable excuse why he does not produce the same; or

If any holder of a license granted in the form set forth in the said

"2. Breaks any of the other conditions of his license by any Act that is not of itself punishable either upon indictment or upon summary conviction; he shall be deemed guilty of an offence punishable summarily by imprisonment for any period not exceeding three months, with or without hard labor.'

Sec. 6. Any constable or police officer may, without warrant, apprehend any holder of a license whom he may reasonably suspect of having committed any offence, or of having broken any of the conditions of his license, and may take him before a justice to be dealt with according to law.

Sec. 7. When the holder of a license is convicted of an offence punishable summarily under this or any other Act a certificate thereof is to be forwarded to a secretary of state in Great Britain, or to the lord lieutenant in Ireland, and thereupon. the license may be revoked.

Sec. 9. "Where any license granted in the form set forth in the said Schedule (A.) is forfeited by a conviction of any indictable offence, or is revoked in pursuance of a summary conviction under this Act or any other Act of Parliament, the person whose license is forfeited or revoked shall, after undergoing any other punishment to which he may be sentenced for the offence in consequence of which his license is forfeited or revoked, further undergo a term of penal servitude equal to the portion of his term of penal servitude that remained unexpired at the time of his license being granted, and shall, for the purpose of his undergoing such last-mentioned punishment, be removed from the prison of any county, borough, or place in which he may be confined, to any prison in which convicts under sentence of penal servitude may lawfully be confined, by warrant under the hand and seal of any justice of the peace of the said county, borough, or place, and shall be liable to be there dealt with in all respects as if such term of penal servitude had formed part or his original sentence."

Sec. 10 empowers Her Majesty or the Lord Lieutenant of Ireland to grant licenses in any other form than that in the schedule and containing different conditions; and such licenses shall be revokable at pleasure by the authority by which they were granted; but a breach of their conditions is not to subject any holder of a license to summary conviction.

This Act appears to have been anything rather than well considered. In the case of larceny and sundry other offences, penal servitude for three.years was the highest punishment which could be inflicted, and the effect of this Act is to raise all those punishments to five years penal servitude. Cases may, no doubt, occur where this may be a proper punishment; but there may be others where the offender deserves less than five years penal servitude and more than two years imprisonment, and cases of this kind may occur in every case where penal servitude may be awarded under the Criminal Law Consolidation Acts, for they give penal servitude for not less than three years, or imprisonment not exceeding two years. In a case where a convict deserves more than two years hard labor, and less than five years penal servitude, no Court will ever pass more than the convict deserves, and consequently it must pass less than he deserves; this is a very palpable mistake in the statute.

Each of the Consolidation Acts, 24 & 25 Vict. c. 96, s. 118; c. 97, s. 74; c. 98, 8. 52; c. 99, s. 39, and c. 100, s. 69, contains the following clause:

Whenever imprisonment, with or without hard labor, may be awarded for any indictable offence under this Act, the Court may sentence the offender to be imprisoned, or to be imprisoned and kept to hard labor, in the common gaol or house of correction."

Each of the Consolidation Acts, 24 & 25 Vict. c. 96, s. 119; c. 97, s. 75; c. 98, 2. 53; c. 99, s. 40, and c. 100, s. 70, contains the following clause :

"Whenever solitary confinement may be awarded for any indictable offence under this Act, the Court may direct the offender to be kept in solitary confinement for any portion or portions of his imprisonment, or of his imprisonment with hard labor, not exceeding one month at any one time, and not exceeding three months in any one year."

[*5 Each of the Consolidation Acts 24 & 25 Vict. c. 96, s. 119; c. 97, s. 75; c. 100, s. 70, contains the following clause :—

Whenever whipping may be awarded for any indictable offence under this Act, the Court may sentence the offender to be once privately whipped; and the number of strokes, and the instrument with which they shall be inflicted, shall be specified by the Court in the sentence."

Each of the Consolidation Acts 24 & 25 Vict. c. 96, s. 117; c. 97, s. 73; c. 98, s. 51; c. 99, s. 38, and c. 100, s. 71, contains the following clause :

Whenever any person shall be convicted of any indictable misdemeanor punishable under this Act, the Court may, if it shall think fit, in addition to or in lieu of any of the punishments by this Act authorized, fine the offender, and require him to enter into his own recognizances, and to find sureties, both or either, for keeping the prace and being of good behavior; and in case of any felony punishable under this Act, (a) the Court may, if it shall think fit, require the offender to enter into his own recognizances, and to find sureties, both or either, for keeping the peace in addition to any punishment by this Act authorized: Provided that no person shall be imprisoned under this clause for not finding sureties for any period exceeding one year."

Each of the Consolidation Acts 24 & 25 Vict. c. 96, s. 98; c. 97, s. 56; c. 98, s. 49; c. 99, s. 35, and c. 100, s. 67, enacts that "In the case of every felony punishable under this Act, every principal in the second degree, and every accessory before the fact, shall be punishable in the same manner as the principal in the first degree is by this Act punishable; and every accessory after the fact to any felony punishable under this Act(b) shall be liable to be imprisoned for any

(a) The Offences Against the Person Act, s. 71, here adds, "Otherwise than with death." (b) Accessories after the fact to murder and the receivers of stolen goods are excepted.

term not exceeding two years, with or without hard labor, and with or without solitary confinement; (c) and whosoever shall counsel, aid, or abet the commission of any indictable misdemeanor punishable under this Act shall be liable to be proceeded against, indicted, and punished as a principal offender."(d)

*6].

*CHAPTER THE SECOND.

OF PERSONS CAPABLE OF COMMITTING CRIMES.

Ir 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 inquiry, 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 defect of will in the party by whom the act has been committed. 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 :-I. Infancy. II. Non compos mentis. III. Subjection to the power of others. IV. Ignorance.

I. The full age of man or woman by the law of England is 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 twentyone;(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. :(f) 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.)(g), there, in some cases, he shall be privileged by non-age, if under twenty-one, though above fourteen years; because laches in such a case shall not be imputed to him. (h)1

his

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 ;() and the law is said to be, that though an infant at the age of eighteen or even fourteen, by his own acts *71 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.() An infant cannot, however, be guilty

(c) The Offences Against the Person Act and Coin Act omit solitary confinement. (d) This clause is omitted in the Coin Act, but the 24 & 25 Vict. c. 94, s. 8, supplies the omission. Post, p. 70.

(a) 4 Blac. Com. 20.

(c) It is the full age of male or female

(d) 1 Hale 20.

(f) Bac. Abr. Inf. (H.) Sid. 258.

(b) 1 Hale 14.

according to common speech: Lit. s. 104, 259.
(e) 4 Blac. Com. 23; 1 Hale 20; Co. Lit. 247 b.

(g) 2 Inst. 703; Rex. v. Sutton, 3 Ad. & E. 597 (30 E. C. L. R.), post, Bridges.

(h) 1 Hale 20; Bac. Abr. Inf. (H.)

(i) 1 Hale 21.

() Bac. Abr. Inf. (H.); Dalt. 422; Co. Lit. 357. And see 1 Hawk. P. C. c. 64, s. 35, that the infant ought not to be imprisoned because he shall not be subject to corporal punishment by force of the general words of any statute wherein he is not expressly named.

1 An infant only a year or two old, upon whose land a nuisance is created, cannot be made criminally answerable for it: People v. Townsend, 3 Hill 479.

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)

With regard to capital crimes the law is more minute and circumspect; distinguishing with greater nicety the several degrees of 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)

An infant under the age of seven years cannot be guilty of felony; and therefore a defendant cannot justify taking such an infant into custody and taking him before a magistrate upon the ground that he had been caught stealing a piece of wood.(mm)

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 prima 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.(q)

[*8

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 hanged; 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) Whenever a person under the age of fourteen is charged with committing a felony, the proper course is to leave the case to the (k) Bac. Abr. Inf. (H.); Co. Lit. 357; 1 Hawk. P. C. c. 64, s. 35.

(4) 4 Blac. Com. 23.

(m) 1 Hale 27, 28; 1 Hawk. c. 1, s. 1, note (1); 4 Bla. Com. 23. A pardon was granted to an infant within the age of seven years, who was indicted for homicide; the jury having found that he did the act before he was seven years old. 1 Hale 27 (edit. 1800), note (e).

(mm) Marsh v. Loader, 14 C. B. (N. S.) 535 (108 E. C. L. R.).

(n) Dr. & Stu. c. 26; Co. Lit. 79, 171, 247; Dalt. 476, 505; 1 Hale 25; Bac. Abr.

Inf. A. & H.

(0) 1 Hale 25, 27; 4 Blac. Com. 23. The civil law, as to capital punishments, distinguished the ages, into four ranks: 1. Etas pubertatis plena, which is eighteen years. 2. tas pubertatis, or pubertas generally, which is fourteen years, at which time persons were likewise presumed to be doli capaces. 3. Etas pubertati proxima; but in this the Roman lawyers were divided, some assigning it to ten years and a half, others to eleven; before which the party was not presumed to be doli capaz. 4. Infantia, which lasts till seven years, within which age there can be no guilt of a capital offence: 1 Hale 17-19. (P) Dalt. Just. c. 147. (7) Dean's case, 1 Hale 25, note (u).

(7) Hale 27; F. Corone, 57; B. Corone, 133.
() Spigurnal's case, 1 Hale 26; Fitz. Rep. Corone 118.
(4) Alice de Waldborough's case, 1 Hale 26.

jury to say whether, at the time of committing the offence, such person had guilty knowledge that he was doing wrong.(n)

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 he cannot be guilty of it.(u) So also, for the like reason, such an infant cannot be guilty of an assault with intent to commit a rape, (v) or of carnally knowing a girl under ten years of age. (w) And this presumption cannot be rebutted, and evidence is not admissible to prove that the infant is in fact competent to commit any such offence.(x) But this presumption 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.(y)1

In 1748, W. York, a boy of ten years of age, was convicted for the murder of a girl of about five years of age; but Willes, C. J., out of regard to the tender years of the prisoner, respited execution till he could take the opinion of the rest of the judges, whether it was proper to execute him or not.

The boy and girl were parish children, under the care of a parishioner; and on the day of the murder he and his wife went out to their work, and left the children in bed together. When they returned, 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 she had gone he knew not whither. Upon this, strict search was made for the child. During this search, the man 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, *9] 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 stiffly 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 neighboring 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 (n) Rex v. Owen, 4 C. & P. 236 (19 E. C. L. R.), Littledale, J.; Reg. v. Smith, 1 Cox C. C. 260, Erle, J.

(u) Rex v. Groombridge, 7 C. & P. 582 (32 E. C. L. R.). Gaselee, J., after consulting Lord Abinger, C. B., as to whether the words "every person" in the 9 Geo. 4, c. 31, s. 16, altered the former law.

(v) Rex v. Eldershaw, 3 C. & P. 396 (14 E. C. L. R.), Vaughan, J.; Reg. v. Philips, 8 C. & P. 736 (34 E. C. L. R.), Patterson, J.

(w) Reg. v. Jordan, 9 C. & P. 118 (38 E. C. L. R.), Williams, J.

(x) Reg. v. Philips, and Reg. v. Jordan, supra. (y) 1 Hale 630.

1 The common-law presumption that a boy under fourteen is incapable of committing rape, is liable to be overcome by clear proof of maturity: State v. Pugh, 7 Jones (Law) 61; People v. Randolph, 2 Parker C. R. 174; Williams v. State, 14 Ohio 222; State v. Sam, 1 Wis. 300. A boy over fourteen is presumed to be capable: State v. Handay, 4 Harring. 566.