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an enormity, as the actual completion of that design. For evil, the nearer we approach it, is the more disagreeable and shocking: so that it requires more obstinacy in wickedness to perpetrate an unlawful action, than barely to entertain the thought of it: and it is an encouragement to repentance and remorse, even till the last stage of any crime, that it never is too late to retract; and that if a man stops even here, it is better for him than if he proceeds: for which reason an attempt to rob, to ravish, or to kill, is less penal than the actual robbery, rape, or murder. But in the case of a treasonable conspiracy, the object whereof is the king's majesty, the bare intention will deserve the highest degree of severity; not because the intention is equivalent to the act itself: but because the greatest rigour is no more than adequate to a treasonable purpose of the heart manifested by some overt act, and there is no greater left to inflict upon the actual execution of the deed.

Again: the violence of passion may sometimes alleviate a crime. To kill a man upon sudden and violent resentment, is less penal than upon cool deliberate malice. The * age, education, and character of the offender;

[*11] the repetition (or otherwise) of the offence; the time, the place, the company wherein it was committed; all these, and a thousand other incidents, may aggravate or extenuate a crime (1).

Further: as punishment is chiefly intended for the prevention of future crime, it is but reasonable that among crimes of different natures those should be most severely punished, which are the most destructive of the public safety and happiness (m); and, among crimes of an equal malignity, those which a man has the most frequent and easy opportunities of committing, which cannot be so easily guarded against as others, and which therefore the offender has the strongest inducement to commit: according to what Cicero observes (n), ea sunt animadvertenda peccata maxime, quæ difficillime præcaventur.Hence it is, that larceny by a servant is more severely punishable than by a stranger. And, in the island of Man, the rule adverted to was formerly carried so far, that to take away a horse or an ox was there no felony, but a trespass, because of the difficulty in that little territory to conceal them, or carry them off; but to steal a pig or a fowl, which is easily done, was a capital misdemeanor, and the offender was punished with death (0).

Lastly: as a conclusion to the whole, we may observe that punishments of unreasonable severity, especially when indiscriminately inflicted, have less

effect in preventing crimes, and amending the manners of a Conclusion.

people, than such as are more merciful in general, yet properly *intermixed with due distinctions of severity. It is the sentiment of an ingenious writer, who seems to have well studied the springs of

[ *12] human action (p), that crimes are more effectually prevented by the certainty, than by the severity of punishment. For the excessive severity of laws (says Montesquieu ()) hinders their execution; when the punishment surpasses all measure, the public will frequently out of humanity prefer impunity to it. Thus also the statute 1 Mar. st. 1, c. 1, recites in its preamble, “that the

(1) Thus Demosthenes in his oration well as citizens; and that in the temple, against Midias) finely works up the aggrava- whither the duty of my office called me.' tions of the insult he had received. "I was (m) Beccar. c. 6. abused,” says he, “by my enemy, in cold (n) Pro Sexto Roscio, 40. blood, out of malice, not by heat of wine, in (0) 4 Inst, 285. the morning, publicly, before strangers as (p) Beccar, c. 7

(9) Sp. L. b. 6, c. 13. VOL. II. - 43

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state of every king consists more assuredly in the love of the subject towards their prince, than in the dread of laws made with rigorous pains; and that laws made for the preservation of the commonwealth without great penalties are more often obeyed and kept, than laws made with extreme punishments” (r). Happy had it been for the nation, if the subsequent practice of that deluded princess in matters of religion, had been correspondent to these sentiments of herself and parliament, in matters of state and government! We may further observe that sanguinary laws are a bad symptom of the distemper of any state, or at least of its weak constitution. The laws of the Roman kings, and the [*13]

twelve * tables of the decemviri, were full of cruel punishments: the

Porcian law, which exempted all citizens from sentence of death, silently abrogated them. In this period the republic flourished: under the emperors severe punishments were revived; and then the empire fell.

It is moreover absurd and impolitic to apply the same punishment to crimes of different malignity. A multitude of sanguinary laws (besides the doubt that may be entertained concerning the right of making them) do likewise prove a manifest defect either in the wisdom of the legislative, or the strength of the executive power. It is a kind of quackery in government, and argues a want of solid skill, to apply the same universal remedy, the ultimum supplicium, to every case of difficulty. It is, it must be owned, much casier to extirpate them 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 (s), 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 of offences, and leave to judicial discretion within certain indicated limits the task of meting out their punishment.

The inflicting of capital punishment, now of comparatively rare occurrence, has been thus justified by that great and good man, sir Matthew Hale (t): “When offences grow enormous, frequent, and dangerous to a kingdom or state, destructive or highly pernicious to civil societies, and to the great insecurity and danger of the kingdom or its inhabitants, severe punishment, and even death itself, is necessary to be annexed to laws in many cases by the prudence of lawgivers.” It is therefore the enormity, or dangerous tendency, of

the crime that alone * can warrant any earthly legislature in putting [*14]

him to death who commits it. It is not its frequency only, or .the difficulty of otherwise preventing it, that will excuse our attempting to prevent it by a wanton effusion of human blood. For, though the end of punish

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(r) So the statute 1 Edw. 6, c. 12, sets forth which had created any treason since the 25 in its preamble that “ Nothing is more godly, Edw. 3, st. 5, c. 2. It repeals “all and every more sure, more to be wished and desired Act of Parliament concerning doctrine or betwixt a prince, the supreme head and ruler, matters of religion.” It repeals every felony and the subjects whose governor and head created by the legislature, during the prehe is, than on the prince's part great clem. ceding reign of Henry VIII. It likewise reency and indulgency, and rather too much peals the statute 31 Hen. 8, enacting "that forgiveness and remission of his royal power proclamations made by the king's highness, and just punishment, than exact severity and by the advice of his honorable council, should justice to be shewed ; and on the subjects' be made and kept as though they were made behalf, that they should obey rather for love, by authority of parliament." and for the necessity and love of a king and (8) Beccar, c. 6. prince than for fear of his strait and severe (T) 1 P. C. 13. laws." It therefore repeals every statute

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ment is to deter men from offending, it never can follow from thence, that it is lawful to deter them at any rate and by any means; since there may be unlawful methods of enforcing obedience even to the justest laws. Every humane legislator will be therefore extremely cautious of establishing laws that inflict the penalty of death, especially for slight offences, or such as are merely positive. To shed the blood of our fellow-creature is a matter that requires the greatest deliberation and the fullest conviction of our own authority: for life is the immediate gift of God to man; which neither he can resign, nor can it be taken from him, unless by the command or permission of him who gave it: either expressly revealed, or collected from the laws of nature or society by clear and indisputable demonstration.




unlawful act con

HAVING, in the preceding chapter, considered in general the nature of crime, and punishment, we are next led, in the order of our distribution, to

inquire what persons are, or are not, capable of committing Persons capable of committing crimes; who are exempted from the censures of the law upon crimes.

the commission of acts, which in other persons would be severely punished. In the process of this 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.

We have seen that a criminal act is one which affects prejudicially the public; it must also (subject to some few and peculiar exceptions) have proThere must be a

ceeded from a guilty mind. So that the several pleas and vicious walland excuses, which protect the committer of a forbidden act from sequent thereon. the punishment which is otherwise annexed thereto, may in general 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 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 cognisable 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, as no temporal tribunal can

[ *16 ] search the heart, or fathom the intentions of the mind, otherwise than as they are demonstrated by outward actions, it therefore cannot punish for that which 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 accused 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 may be no crime at all. So that to constitute a crime against human laws, there must in

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with the act.

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almost all cases 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 discern

ment, there is no choice; and where there is no choice, there Cases where the will does not join can be no act of the will, which is nothing else but a determina

tion of one's choice to do or to abstain from a particular action: he, therefore, who 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; as where an offence is committed by mischance 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 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, idiocy, lunacy, and intoxication, which fall under the first class; misfortune, and ignorance, which may be referred to the second; and compulsion or necessity, which may properly rank in the third.

* I. First, we will consider the case of infancy, or nonage: during which [*17]

there is a defect of the understanding. Infants, under the age of dis

cretion, ought not to be punished by any criminal prosecution (a). I. Infancy.

The age of discretion has, in various nations, varied. The civil law distinguished the age of minors, or males under twenty-five years old, into three stages: infantia, from birth till seven years of age; pueritia, from seven to fourteen; and pubertas, from fourteen upwards (b). 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, infantice proxima, persons were not punishable for any crime (c). 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 (d). 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 misdemeanors, so as to escape fine, imprisonment, and the like: and particularly in cases of omission, as not repairing a bridge (e), or a highway, and other similar offences (f): 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, assault (g), or the like (which * infants, when full grown, [*18]

are at least as likely as others to commit), for these an infant, above

Hawk. P. C. 2.
(6) The period of pubertas plena was in
males fixed at eighteen years.

(C) Inst. 3, 20, 10.

(d) Dig. 29, 5, 14; 50, 17, 111; 47, 2, 23.
(e) See R. v. Sutton, 3 Ad. & E. 597.
f) 1 Hale, P. C. 20, 21, 22.
(9) Reg. v. Read, 1 Den. 377.


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the age of 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 open (h); and from thence till the offender was fourteen, it was ætas 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 age of discretion: but, under twelve it was held that he could not be guilty in will, neither after fourteen could he be supposed innocent, of any capital crime which he had in fact committed. But by the law, as it now stands, and has stood at least ever since the time of Edward III., 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 ætatem.Under seven years of age, indeed, an infant cannot be guilty of felony (i); for then a felonious discretion is almost an impossibility in nature: but at eight years old he may be guilty of felony (k). 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 punished (1). (609) 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;

[*19] 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 (m). And there was an instance in the 17th century where a boy of eight years old was tried at Abingdon for firing two barns; and it appearing that he had malice, revenge,

(1) Leg. Athelstan. Wilk. 65.
(i) Mirr. c. 4, s. 16; 1 Hale, P. C. 27.
(k) Dalt. Just, c. 147.

(1) R. v. Owen, 4 C. & P. 236.
(m) 1 Hale, P. C. 26, 27.

(609) A child under seven years of age is conclusively presumed incapable of commitring any crime whatsoever, and cannot be judicially punished (People v. Townsend, 3 Hill, 479); but between the ages of seven and fourteen the presumption of incapacity is only prima facie, and evidence showing a criminal capacity may be received. Godfrey v. The State, 31 Ala. 323; The State v. Doherty, 2 Tenn. 80; State v. Goin, 9 Humph. (Tenn.) 175; State v, Pugh, 7 Jones (N. C.), 61; Commonwealth v. Mead, 10 Allen (Mass.), 398; State v. Learnard, 41 Vt. 585; People v. Randolph, 2 Park. 174. In New Jersey a boy of twelve years was convicted of murder, sentenced, and executed. State v. Guild, 5 Halst. 163. And see State v. Bostick, 4 Harr. (Del.) 563; State v. Aaron, 1 Southard (N. J.), 231 ; Irby v. State, 32 Ga. 496 ; Godfrey v. State, 31 Ala. 323.

At fourteen criminal responsibility fully attaches to infants; and he who would set up their incapacity must prove it. State v. Handy, 4 Harr. (Del.) 566; State v. Goin, 9 Humph. (Tenn.) 195; Irby v. State, 32 Ga. 496.

An infant under fourteen years is, by law, presumed incapable of committing rape (Stephen v. State, 11 Ga. 227); but in Ohio this presumption of incapacity may be overcome by evidence. Williams v. The State, 14 Ohio, 222. And see People v. Randolph, 2 Park. 174. And an infant under fourteen may be convicted of an assault with intent to commit a rape. Com. v. Green, 2 Pick. (Mass.) 380; State v. Pugh, 7 Jones (N. C.), 61. But see People v. Randolph, 2 Park. 213; State v. Sam, Winston (N. C.), 300.

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