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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 next led in the order of our distribution to inquire what persons are or are not capable of committing crimes; or, which is the same thing, 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.

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 in 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 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 conscientiæ, a fixed design or will to do an unlawful act is almost as heinous as the commission of it, yet in general, and except in the rare case in which the party confesses such a design, no human tribunal has any means of discovering its existence, where it has not been carried out into an external action. [It is besides impossible, in any case, to ascertain that conscience might not possibly have recovered its power in time to prevent the actual perpetration of the offence; for which reasons, in all temporal jurisdiction, 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.

Now there are three cases in which the will does not join with the act. I. 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 than 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. II. Where there is understanding and will sufficient residing 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 sits neuter, and neither concurs with the act nor disagrees with it. III. 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 the several species of defect in will, as they fall under some one or other of these general heads ; as infancy, idiotcy and lunacy, which fall under the first class; misfortune and ignorance, which may be referred to the second ; and com[pulsion or necessity, which may properly rank in the third.

1. Under the first division we will first consider the case of infancy or non-age; which is a defect of the understanding. Infants under the age of discretion, ought not to be punished by any criminal prosecution whatever (a). What the age of discretion is, has been variously determined by various nations. The civil law distinguished the age of minors,—or those under twentyfive years old,-into three stages: infantia, from the birth till seven years of age; pueritia from seven to fourteen; and pubertas, 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 : from ten and a half to fourteen, was ætas pubertati proxima. During the first stage of infancy, and the next half stage of childhood, infantiæ proxima, minors were not punishable for any crime. 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 rigour of the law. During the last stage, (of the age of puberty, and afterwards,) minors were liable to be punished, as well capitally as otherwise (6).

The law of England does, in some cases, privilege an infant under the age of twenty-one, as to certain misdemeanors : and particularly in cases of omission, as in not repairing a bridge or a highway, or other similar offences (c); for not having the command of his fortune till twenty-one, he wants the capacity to do those things which the law requires. But where there is any notorious

(a) Hawk. P. C. b. 1, c. 1, s. 2. Infancy, in reference to civil cases, has been treated of, sup. vol. II. pp. 62, 303–308.

(6) Ff. 29, 6, 14, 50, 17, 111, 47, 2, 23.

(c) 1 Hale, P. C. 20, 21, 22.

[breach of the peace, a riot, battery or the like (which infants, when full grown, are at least as liable as others to commit,) or any perjury or cheating (d),—for these an infant above the age of fourteen is equally liable to suffer, as a person of the full age of twenty-one.

With regard to more heinous crimes our law is still more minute and circumspect; distinguishing with greater nicety the several degrees of age and discretion. By the antient 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 until fourteen, it was ætas pubertati proxima, in which the infant 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 be supposed innocent, of any capital crime which he in fact committed. But by the law, as it now stands, and has stood at least 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. For one lad of eleven years old, may have as much cunning as another at fourteen; and in these cases our maxim is that malitia supplet ætatem.

Under seven years

of

age, indeed, an infant cannot be guilty of felony (f); for then a felonious discretion is almost an impossibility in nature; but at eight years old it is laid down that he may be guilty of felony (g). Also, above seven and under fourteen, though an infant shall be primâ facie adjudged to be doli incapax (k), yet if it appear to the court and jury that he was doli capax, and could discern between good and evil, he may be convicted and be sentenced to suffer death.

(d) Bac. Ab. Infancy, H.

(e) Wilk. Leg. Ang.-Sax. LL. Athelstan.

(f) Mir, c. 4, s. 16; 1 Hal. P. C.

27. See Marsh v. Loader, 14 C. B.,
N. S. 535.

(9) Dalt. Just. c. 147.
(1) See R. v. Owen, 4 C. & P.230,

[Thus besides more antient examples there was an instance where a boy of eight years old was tried in the seventeenth century at Abingdon for firing two barns; and it appearing that he had malice, cunning, and revenge, he was found guilty, condemned, and hanged accordingly (i). Thus also, in still later times, a boy of ten years old was convicted on his own confession of murdering his bedfellow, there appearing in his whole behaviour 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(k). 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 (1).] After an infant has attained fourteen, he is presumably doli capax, and has no privilege by reason of his non-age, except in cases of omission and the like, already noticed (m)—and at twenty-one, when infancy ceases, no privilege whatever in respect of age is recognized by law.

[Another case in which the defect of understanding excuses from guilt, is that of an idiot or a lunatic; for the rule of law as to the latter, (which may be easily adapted also to the former,) is that "furiosus furore solum punitur(n). 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 (o). Also, by the common law if a man

(i) Emlyn on 1 Hal. P. C. 25. (m) Vide sup. p. 23. (k) Foster, 72.

(n) As to the state of the law (1) Of the particular crime of relative to idiots and lunatics in rape, an infant under the age of general, vide vol. 1. pp. 474, 475; fourteen cannot be convicted; and vol. II. pp. 62, 508-514. here, therefore, the doctrine malitia (0) 3 Inst. 6. supplet ætatem does not apply.

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