received, with great propriety, a transportation pardon from the Crown. In like manner David Urquhart, aged sixteen, was sentenced to death, but pardoned by the Crown, and transported for the same offence of stealing from the mail, on 4th September 1797. So also Macdonald, aged eighteen, and Macintosh, aged sixteen, were sentenced to death, and executed for murder and robbery, in March 1812; as were Black and Macdonald, 17th June 1813, for shooting a man near Coltbridge, the one being eighteen, the other nineteen years old.2 Again, on 25th March 1818, Main and Aitchison, two boys of fifteen years each, were sentenced to death, but received a transportation pardon; on 11th January 1823, Charles Maclaren, Thomas Grierson, and James Macewan, convicted of theft by housebreaking, were sentenced to death, though Macewan declared he was fourteen, and Grierson thirteen years of age.3 Lastly, at Glasgow, autumn 1823, Edward Maccaffie was condemned to death for highway robbery, though only sixteen years old, but he received a transportation pardon;1 and on 23d December 1824, Alexander Mackay, aged fifteen, was sentenced to death; James Stevenson, Glasgow, autumn 1826, convicted of robbery, aged eighteen, was condemned and executed. But of all such cases of extreme youth it may be observed, that though the law is rightly allowed to take its course in pronouncing sentence; yet the royal clemency generally interposes to commute it to transportation; and, certainly, unless in extreme cases, such as murder or fire-raising, or atrocious rape, this practice should not be departed from.

But very different has been the practice in regard to the transportation of such juvenile offenders. Our Judges have most justly considered, that the transportation of such youthful depredators is the only means not only of ridding society of their crimes, but of giving them that chance of amendment in another country which they have lost in their own. In cases innumerable, accordingly, transportation has been inflicted on minors just turned fourteen years, Thus, on 21st December 1818, Gun and Chisholm, two boys of fourteen years of age, were transported fourteen years, as was Robert Thomson, Glasgow, 14th April 1821, though aged only thirteen years, The like sentence, passed at Glasgow, September 1826, on Wil

1 Hume, i. 33.—2 Ibid. i. 32.—3 Ibid. Unreported.

liam Weir, aged fourteen, and at Edinburgh, July 7. 1828, on Daniel Cormie, a boy of fifteen1; but it is superfluous to quote farther examples of a matter of daily practice.

2. Pupils, though below fourteen years of age, nay though only nine, ten, or eleven years of age, may be subjected to an arbitrary punishment, if they appear qualified to distinguish right from wrong, but not to the pain of death.

The same salutary principle of our law, in transporting juvenile delinquents, has been rigorously applied, of late years, to boys and girls of much younger years, if either from their conduct or appearance they seem 'capable of understanding the nature of a crime. It has not been unusual to transport children of eleven and twelve years, where their character seemed hardened, and to imprison them where they did not appear so completely depraved. Thus at Glasgow, spring 1818, Robert Turnbull, a boy of ten, and Boyd Hay, a boy of nine years of age, were convicted of theft by housebreaking, and sentenced to twelve months' confinement in Bridewell. At the same place, April 1817, James Gracie, a boy between thirteen and fourteen, convicted of theft, was sentenced to twelve months in Bridewell. At Jedburgh, April 1817, Rutherford and Watson, two boys of thirteen years of age, were sentenced to eighteen months in Bridewell. In the High Court, 6th November 1827, William Campbell, aged nine years, was sentenced to eighteen months' hard labour in Bridewell; and at Glasgow, April 1828, Mary Anne Macleish and Elizabeth Stewart, aged respectively thirteen and eleven years, received the same punishment.1

But, in cases of more hardened delinquency, transportation is constantly inflicted on pupils of this tender age. Thus Alexander Livingston, 1749, a boy of twelve years of age, convicted of stabbing another boy, so as to occasion his death, was held, on a full argument, to be doli capax, and transported for life.5 John Brand, June 30. 1789, a boy of thirteen and eight months, was tried for stealing letters from the post-office,

1

1 Unreported. Hume, i. 32, 33.3 Unreported.-4 Unreported. Maclaurin, No. 55.

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by a contrivance of his own, and sentenced to transportation.1 On 13th November 1493, at Lauder, Thomas Gothraston, a boy eight years old, charged with murder, was ordered to be sharply scourged. And, in the cases of Maxwell, January 11. 1605, who was eight years of age, and William Menzies, Perth, May 10. 1800, who was also eight years old, the plea of nonage was proposed and repelled. So also James Alexander, Perth, 18th April 1801, convicted of wilful fire-raising, aged thirteen and four months, was sentenced, on a restriction of the libel, to fourteen years transportation, after the case had been certified to all the Judges, on the point of the punishment which should be inflicted.4 John Maclean, Glasgow, April 1817, aged fourteen, was transported fourteen years.5 At Aberdeen, autumn 1827, John Miller, Patrick Quin, and others, convicted of theft by housebreaking, received fourteen years transportation, though only thirteen years of age each.

On a due consideration of these precedents, many of which were for the most atrocious crimes, inferring death in a grown person, there seems no sufficient authority for inflicting that punishment on any pannel under fourteen years of age; and certainly there is good reason for confining that extreme penalty to the case of more advanced delinquents, and not cutting off life in infancy, and at a period when, whatever may have been the depravity of the acts committed, complete corruption of the heart can hardly have taken place, and the influence of guilty parents, or elder associates, is the general cause of their having been perpetrated.

3. Children under seven years of age are held to be incapable of crime, and not the object of any punishment.

No authority has ever yet maintained that an infant under seven years of age is liable to any punishment; and certainly at that tender age, whatever vice exists, must be ascribed to improper tuition, or bad example, and the child cannot be considered as answerable for a violation of what he could not understand.7

In the law of England it is held that a child below seven years of age can be visited with no punishment; that between seven and fourteen an infant shall prima facie be presumed to

1

Hume, i. 34.2 Ibid. i. 35.—3 Ibid.— Ibid. Unreported. Hume, i. 34. Ibid. i. 35.

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be doli incapax, yet so that this presumption weakens as the prisoner's age approaches puberty, and may at any period between these years be overcome by evidence of a capacity for crime, si malitia supplet ætatem.1 The evidence of malice in such cases must be pregnant if the crime be serious; but, if sufficient proof of a malignant disposition exists, they hold that an infant of ten years of age may be hanged; 2 and, in one case, a child of that age, was actually hanged for the crime of murder; but it is probable that this precedent would not now be followed, for the matter underwent great consideration, and terminated in the child's life being saved, in similar circumstances, in the case of William York, Bury Assizes, 1748. This boy was ten years of age, and had murdered a little girl, a companion of his own, of five years, for which he was sentenced, by Chief Justice Willis, to be hanged. He was reprieved, however, for the opinion of the Twelve Judges, as to whether sentence should be carried into execution. The Judges held unanimously, 1st, That the declarations which the boy had emitted before the Justice, and other persons who examined him, were rightly left to the jury; 2d, That the circumstances of the case indicated so much of what Lord Hale calls a mischievous discretion, that he was amenable to the highest punishment. A second reprieve, however, was granted to give time for farther investigation, and in the end, many years after, the boy got a pardon, upon condition of his entering the Royal Navy. A boy under fourteen is held incapable, from defect of power, of committing a rape; but he may be art and part in a rape committed by one of maturer years, if it appears, from other circumstances, he had a mischievous discretion.5

Nearly akin to pupilarity is that state of mental imbecility which arises from the pannel's being deaf and dumb. It was solemnly decided by the Court, in the case of Jane Campbell, 17th July 1817, that a person in this situation may be tried and punished, if it appear that he is capable of understanding that what he did was wrong. But a previous proof by the prosecutor that this is the case is indispensable where the defect has existed from infancy; and in all cases it is a difficulty which will be found no easy matter to surmount.7

6

3

1 Hale, i. 25–27; Blackstone, iv. 23.—2 Russell, i. 3.- Spiguonal's Case, Hale, i. 26.1 York's Case, Fost. 70; Russell, i. 5.5 Hale, i. 630.-6 Hume,

SECT. 111.-OF SUBJECTION TO OTHERS.

As crime consists in the intentional violations of the rights of others, it follows that it cannot be visited with punishment where it has arisen not from intention or voluntary depravity, but such a coercion as has deprived the party of the free exercise of his will. The consideration, therefore, of the restraints on the will forms an important subject of inquiry.

1. A wife is not excusable in the commission of any crime by the influence or power of her husband, if she has taken any part in its commission along with him,

Nothing is better established in our practice, than that the authority or coercion of the husband is no palliation for the commission of crimes by the wife, who is presumed to have at least such freedom of action left as to be capable of resisting the temptations to crime, of whatever sort they may be.1 And this holds not only in regard to the more atrocious crimes, such as murder, robbery, or fire-raising, but the smaller, such as theft, assault, reset, forgery, or the like, which are not so perilous by the danger and alarm with which they are attended.2 Nothing is more common, accordingly, than to have a husband and wife put to the bar and tried together on the same libel for the same offence. Witness among other instances, if any were necessary, the recent cases of John Stewart and Catherine Wright, his wife, convicted of murder, July 14. 1829, and James Byres and Mary Steele, his wife, Glasgow, autumn 1831, both executed for murder, and William Heath and Elizabeth Crowder, his wife, Glasgow, same circuit, tried for breaking into one of the Glasgow Banks. Some argument on this head took place in the case of James Hyslop and Jessie Hyslop, his wife, accused of assisting French prisoners to make their escape from prison. It was pleaded that she was married to a French prisoner, and had by his command assisted the others to make their escape; but, upon the reply, that the law could not recognise any marriage between a British subject and an alien prisoner of war, and that this was not one of the leviora

1 Hume, i. 47, 48.—2 Ibid. i. 48.-3 Unreported.