66 fourteen could he 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 ever 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 of fourteen: and in these cases our maxim is, that "malitia supplet aetatem." Under seven years of age indeed an infant cannot be guilty of felony; for then a felonious discretion is almost an impossibility in nature: but at eight years old he may be guilty of felony. Also, under fourteen, though an infant shall be prima facie adjudged to be doli incapax; 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 suffer death. Thus a girl of thirteen has been burnt for killing her mistress: 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 to discern between good and evil. And there was an instance in [ 24 ] 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". Thus also, in very modern 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. But, in all such cases, the evidence of that malice Mir. c. 4. § 16. 1 Hal. P. C. 27. f Dalt. Just. c. 147. 1 Hal. P. C. 26, 27. h Emlyn on 1 Hal. P. C. 25. which is to supply age, ought to be strong and clear beyond all doubt and contradiction (1). II. THE second case of a deficiency in will, which excuses from the guilt of crimes, arises also from a defective or vitiated understanding, viz. in an idiot or a lunatic. For the rule of law as to the latter, which may easily be adapted also to the former, is, that "furiosus furore solo punitur." 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. Also, if a man in his sound 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 prisoner becomes mad, he shall not be tried: for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced: and if, after judgment he becomes of nonsane memory, execution shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or exe (1) The present French criminal law adopts but one distinction of age, as to the responsibility of the party. If an offence be committed under the age of sixteen, and it be found to have been committed" without discernment," the offender is to be acquitted; but according to circumstances he is to be returned to his relatives, or placed in a house of correction to be brought up there, and detained for any number of years not exceeding his twentieth. If it be found to have been committed "with discernment," the ordinary legal punishment for the crime is to be reduced on a graduated scale; the result of which is, that in no case can a person under sixteen suffer death, hard labour for life, or transportation; and where the punishment is one which is ordinarily attended by public exposure, (see post, p. 138. n.) that accompaniment is directed to be remitted. In the matter of punishment, though not of responsibility, the French code makes a distinction, founded on the age of the party, which, though in some respects practically adopted, is unknown in theory to our law. After the age of seventy, no one can be sentenced to transportation or hard labour; and when a person condemned to hard labour attains the age of seventy, he is relieved from it, and placed in a prison for the remainder of his term. -Code Penal. liv. 2. cution'. Indeed, in the bloody reign of Henry the eighth, a statute was made", which enacted, that if a person, being compos mentis, should commit high treason, and after fall into madness, he might be tried in his absence, and should suffer death, as if he were of perfect memory. But this savage and inhuman law was repealed by the statute 1 & 2 Ph. & M. c. 10. For, as is observed by sir Edward Coke", "the exe"cution of an offender 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 miserable 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 shall be tried by a jury. And if he be so found, a total idiocy, or absolute insanity, excuses from the guilt, and of course from the punishment, of any criminal action committed under such 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 o. Yet in the case of absolute 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 be suffered to go loose, to the terror of the king's subjects. It was the doctrine of our antient law, that persons deprived of their reason might be confined till they recovered their senses ", without waiting for the forms of a commission or other special authority from the crown and now, by the vagrant acts, a method is chalked out for imprisoning, chaining, and sending them to their proper homes. (2) i 1 Hal. P. C. 34. m 33 H. VIII. c. 20. n 3 Inst. 6. 1 Hal. P. C. 31. P Bro. Abr. tit. Corone. 101. (2) The 39 & 40 G.3. c. 94. has provided for the different cases in which a lunatic may appear before a jury, both where it is in evidence that he was insane at the time of committing the act charged upon him, and where he shall appear so at the time of arraignment or of trial. In the first case, the jury instead of a general verdict of acquittal, are directed to find his insanity specially, and whether they acquit him on that ground. In the latter cases, a jury shall be impanelled for the purpose of trying whether the prisoner be lunatic or otherwise at that time. If the verdict in either case establish the insanity, the prisoner must be kept in strict custody until the king's pleasure be known for the future disposal of him. By 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 than as an [26] excuse for any criminal misbehaviour. A drunkard, says sir Edward Coke', who is voluntarius daemon, hath no privilege thereby; but what hurt or ill soever he doth, his drunkenness doth aggravate it: nam omne crimen ebrietas, et incendit, et detegit. It hath been observed, that the real use of strong liquors, and the abuse of them by drinking to excess, depend much upon the temperature of the climate in which we live. The same indulgence, which may be necessary to make the blood move in Norway, would make an Italian mad. A German, therefore, says the president Montesquieu, drinks through custom, founded upon constitutional necessity; a Spaniard drinks through choice, or out of the mere wantonness of luxury and drunkenness, he adds, ought to be more severely punished, where it makes men mischievous and mad, as in Spain and Italy, than where it only renders them stupid 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, should 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 delapsis capitalis poena remittitur "." But the law of England, considering how easy it is to counterfeit this excuse, and how weak an excuse 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 design. By the 56 G. 5. c. 117. provision is made for convicted criminals, who may become insane during their imprisonment: the secretary of state is empowered to remove them to some lunatic asylum, and direct their detention there until their recovery. Here the will observes a total neutrality, and does not cooperate with the deed; which therefore wants one main in gredient of a crime. Of this, when it affects the life of another, we shall find 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 necessary 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 mistake kills one of his own family, this is no criminal action: but if a man thinks he has a right to kill a person excommunicated or outlawed, wherever he meets him, and does so; this is wilful murder. For a mistake in point of law, which every person of discretion not only may, but is bound and presumed to know, is in criminal cases no sort of defence. Ignorantia juris, quod quisque tenetur scire, neminem excusat, is as well the maxim of our own law, as it was of the Roman 2. VI. A SIXTH Species of defect of will is that arising from compulsion and inevitable necessity. These are a constraint upon the will, whereby a man is urged to do that which 2 (3) By" unlawful," is intended here any act morally wrong, that which is malum in se; for if it was barely malum prohibitum, as shooting at game by a person not qualified by statute law to use a gun for that purpose, the party will not be answerable for the unforeseen consequence. Foster, 259. |