the age of fourteen, is equally liable to fuffer, as a person of the full age of twenty-one. WITH regard to capital crimes, the law is ftill more minute and circumspect; distinguishing with greater nicety the feveral degrees of age and difcretion. By the antient Saxon law, the age of twelve years was established for the age of poffible difcretion, when first the understanding might open": and from thence till the offender was fourteen, it was aetas pubertati proxima, 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 twelvej it was held that he could not be guilty in will, neither after fourteen could he be fuppofed innocent, of any capital crime which he in fact committed. But by the law, as it now ftands, and has ftood at least ever fince 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 of fourteen; and in these cases our maxim is, that "malitia fupplet aetatem." Under feven years of age indeed an infant cannot be guilty of felony; for then a felonious difcretion is almost an impoffibility in nature: but at eight years old he may be guilty of felony f. Alfo, under fourteen, though | an infant fhall be prima facie adjudged to be doli incapax; ́yet if it appear to the court and jury, that he was doli capax, and could difcern between good and evil, he may be convicted and suffer death. Thus a girl of thirteen has been burnt for killing her miftrefs: 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 hiding manifested a consciousness of guilt, and a discretion 24 PUBLIC Book IV. to difcern between good and evil. 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 h. Thus alfo, in very modern times, a boy of ten years old was convicted on his own confefsion of murdering his bedfellow; there appearing in his whole behaviour plain tokens of a mischievous difcretion; and, as the sparing this boy merely on account of his tender years might be of dangerous confequence to the public, by propagating a notion that children might commit fuch atrocious crimes with impunity, it was unanimously agreed by all the judges that he was a proper fubject of capital punishment. But, in all fuch cases, the evidence of that malice, which is to supply age, ought to be strong and clear beyond all doubt and contradiction. II. THE second cafe of a deficiency in will, which excufes from the guilt of crimes, arises also from a defective or vitiated understanding, viz. in an idiot or a lunatie.. For the rule of law as to the latter, which may eafily be adapted also to the former, is, that "furiofus furore folum punitur.", In criminal cafes therefore idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities: no, not even for treason itself. Also, if a man in his found memory commits a capital offence, and before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prifoner becomes mad, he fhall not be tried: for how can he make his defence? If, after he be tried and found guilty, he loses his fenfes before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of nonfane memory, execution shall be stayed: for perad venture, says the humanity of the English law, had the prifoner been of found memory, he might have alleged fome g 1 Hal. P. C, 26, 27. Emlyn on 1 Hal. P. C. 25. i Fofter. 72. 3 thing thing in ftay of judgment or execution'. Indeed, in the bloody reign of Henry the eighth, a ftatute was made m which enacted, that if a perfon, being compos mentis, should commit high treason, and after fall into madness, he might be tried in his abfence, and fhould fuffer death, as if he were of perfect memory. But this favage and inhuman law was repealed by the ftatute 1 & 2 Ph. & M. c. 10. For, as is obferved by fir Edward Coke", "the execution of an of fender is for example, ut poena ad paucos, metus ad omnes "perveniat: but so it is not when a madman is executed; "but should be a miferable spectacle, both against law, and "of extreme inhumanity and cruelty, and can be no example "to others." But if there be any doubt, whether the party be compos or not, this fhall be tried by a jury. And if he be fo found, a total idiocy, or abfolute infanity, excufes from the guilt, and of course from the punishment, of any criminal action committed under fuch deprivation of the senses: but, if a lunatic hath lucid intervals of understanding, he shall answer for what he does in those intervals, as if he had no deficiency. Yet, in the cafe of abfolute madmen, as they are not answerable for their actions, they should not be permitted the liberty of acting unless under proper control; and, in particular, they ought not to be fuffered to go loofe, to the terror of the king's subjects. It was the doctrine of our antient law, that perfons deprived of their reason might be confined till they recovered their fenses P, without waiting for the forms of a commiffion or other special authority from the crown and now, by the vagrant acts, a method is chalked out for imprisoning, chaining, and fending them to their proper homes. III. THIRDLY; as to artificial, voluntarily contracted madness, by drunkenness or intoxication, which, depriving men of their reason, puts them in a temporary phrenzy; our law looks upon this as an aggravation of the offence, rather A 26 PUBLIC Book IV. than as an excufe for any criminal misbehaviour. A drunkard, fays fir Edward Coke', who is voluntarius daemon, hath no privilege thereby; but what hurt or ill foever he doth, his drunkenness doth aggravate it: nam omne crimen ebrietas, et incendit, et detegit. It hath been obferved, that the real use of strong liquors, and the abuse of them by drinking to excefs, depend much upon the temperature of the climate in which we live. The fame indulgence, which may be neceffary to make the blood move in Norway, would make an Italian mad. A German therefore, fays the prefident Montefquieu, drinks through custom, founded upon conftitutional neceffity; a Spaniard drinks through choice, or out of the mere wantonnefs of luxury: and drunkenness, he adds, ought to be more feverely punished, where it makes men mifchievous and mad, as in Spain and Italy, than where it only renders them ftupid and heavy, as in Germany and more northern countries. And accordingly, in the warm climate of Greece, a law of Pittacus enacted, "that "he who committed a crime, when drunk, fhould receive "a double punishment;" one for the crime itself, and the other for the ebriety which prompted him to commit it'. The Roman law indeed made great allowances for this vice: "per vinum delapfis capitalis poena remittitur "." But the law of England, confidering how easy it is to counterfeit this excufe, and how weak an excufe it is, (though real) will not suffer any man thus to privilege one crime by another ". IV. A FOURTH deficiency of will, is where a man commits an unlawful act by misfortune or chance, and not by defign. Here the will obferves a total neutrality, and does not co-operate with the deed; which therefore wants one main ingredient of a crime. Of this when it affects the life of another, we fhall find more occafion to speak hereafter; at prefent only obferving, that if any accidental mifchief hap r Inft. 247. Sp. L. b. 14. c. 10. Puff. L. of N. b. 3. c. 3. a Ff. 49. 16. 6. w Plowd. 19. pens pens to follow from the performance of a lawful act, the party ftands excufed from all guilt: but if a man be doing any thing unlawful, and a confequence enfues which he did not foresee or intend, as the death of a man or the like, his want of forefight fhall be no excufe; for, being guilty of one offence, in doing antecedently what is in itself unlawful, he is criminally guilty of whatever confequence may follow the first misbehaviour *. V. FIFTHLY, ignorance, or mistake is another defect of will; when a man, intending to do a lawful act, does that which is unlawful. For here the deed and the will acting separately, there is not that conjunction between them, which is neceffary to form a criminal act. But this must be an ignorance or mistake of fact, and not an error in point of law. As if a man, intending to kill a thief or housebreaker in his own house, by miftake kills one of his own family, this is no criminal action: but if a man thinks he has a right to kill a perfon excommunicated or outlawed, wherever he meets him, and does fo; this is wilful murder. For a mistake in point of law, which every perfon of discretion not only may, but is bound and prefumed to know, is in criminal cafes no fort of defence. Ignorantia juris, quod quifque tenetur fcire, neminem excufat, is as well the maxim of our own law 2, as it was of the Roman 2, VI. A SIXTH fpecies of defect of will is that arifing from compulfion and inevitable neceffity. Thefe are a constraint upon the will, whereby a man is urged to do that which his judgment difapproves; and which, it is to be presumed, his will (if left to itself) would reject. As punishments are therefore only inflicted for the abuse of that free will, which God has given to man, it is highly just and equitable that a man should be excused for those acts, which are done through unavoidable force and compulfion. x 1 Hal. P. C. 39.. Cro. Car. 538. z Plowd. 343. a Ff, 22.6. |