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same universal remedy, the ultimum supplicium, to every case of difficulty. It is, it must be owned, much 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 ?, 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 * : hence it is, that though perhaps they are therefore subject to fewer robberies, yet they never rob but they also murder (8). 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 has the same effect here as in China; in preventing frequent assassination and slaughter.

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(8) The offence of wrongfully taking the goods of another is now punished with death in France, only under very particular circumstances. It must have been committed at night, by two or more persons in company, one of them at least armed; actual violence, or a threat of using arms, must have been used; the outer door of some dwelling house or its dependencies must have been broken, or opened by false keys, or the same must have been entered by scaling or burrowing; and further, the persons committing the crime must have assumed the title or uniform of some officer, civil or military, or must have pretended to act under the order of the civil or military authority.

When some, but not all, these aggravating circumstances concur, the offence is punished according to a graduated scale, by hard labour for life, term of years, or imprisonment of the kind which is called “reclusion," which subjects to hard labour, and involves greater civil disabilities than simple imprisonment. -Code Penal. liv. 3. t. 2. ch. 2. s. 1.

Yer, 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 an hundred and sixty have been declared by act of parliament o to be felonies without benefit of clergy; or, in other words, to be worthy of instant death. So dreadful a list, instead of diminishing, increases the number of offenders. The injured, [ 19 ] through 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. (9)

o See Ruffhead's index to the statutes (tit. Felony), and the acts which have since been made.

(9) Without embarking in the question of capital punishment, which is far too difficult and complicated to be satisfactorily discussed in a note, it is right to observe, that the spirit of the legislature latterly has leaned very much to the humane and moderate reasoning of the author. Capital punishment has been rarely imposed, and in many instances been taken away since the commencement of the regency of his present majesty.




H AVING, in the preceding chapter, considered in general

the nature of crimes, and punishments, we are led next, in the order of our distribution, to enquire 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 enquiry, 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 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 it's choice either to do

or to avoid the fact in question, being the only thing that ren-. [ 21 ] ders 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 conscientiae, 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.

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. 2. 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 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 loaths 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, which fall under the first class; misfortune, and ignorance, which may be referred to the second; and compulsion or necessity, [ 22 ] 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? 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, from the birth till seven

a 1 Hawk. P.C. 2.

years of age ; pueritia, from seven to fourteen; and pubertas, from fourteen upwards. The period of pueritia, or childhood, was again subdivided into equal parts: from seven to ten and an half was aetas infantiae proxima ; from ten and an half to fourteen was aetas pubertati prosima. During the first stage of infancy, and the next half stage of childhood, infantiae proxima, they were not punishable for any crime. During the other half stage of childhood, approaching to puberty, from ten and an 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, (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 misdemesnors, 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. 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 commity) for these an infant, above the age of [ 23 ] fourteen, is equally liable to suffer, as a person of the full age

of twenty-one.

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 openo; 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 twelve it was held that he could not be guilty in will, neither after b Inst. 3. 20. 10.

11 Hal. P.C. 20, 21, 22. " Ff. LL. Alhelstan. Wilk. 56.

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