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[idea, yet at least a wise legislature will mark the principal divisions, and not assign penalties of the first degree to offences of an inferior rank. Where men see no distinction in the nature and gradations of punishment, the generality will be led to conclude there is no distinction in the guilt (x).]

(x) 4 Bl. Com. p. 18. Blackstone concludes these remarks with some just invectives on that frequency of capital punishment, which disgraced the English law at the time he wrote. He says "It is a melancholy "truth that among the variety of "actions which men are daily liable "to commit, no less than 160 have "been declared by act of parliament "to be felonies without benefit of "clergy, or, in other words, to be

worthy of instant death. So "dreadful a list, instead of di"minishing, increases the num"ber of offenders. The injured, "through compassion, will often "forbear to prosecute; juries, "through compassion, will some"times forget their oaths, and "either acquit the guilty or miti"gate the nature of the offence; "and judges, through compassion, "will respite one-half of the con"victs, and recommend them to the

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expectedly the hand of justice "overtake him, he deems himself "peculiarly unfortunate in falling "at last a sacrifice to those laws, "which long impunity has taught "him to contemn."

This exposure of the impolicy as well as inhumanity of our system in regard to punishment, might well have led to its earlier amendment. That reform, which is mainly due to the exertions of Sir Samuel Romilly towards the close of the reign of George the third, may now be said to be complete; but it owes its consummation to the reign of our present gracious sovereign.

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 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 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, idiocy and lunacy, 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. 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 twenty-five 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 (b).

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 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

(a) Hawk. P. C. b. 1, c. 1, s. 2. Infancy, in reference to civil cases, has been treated of, sup. vol. II. pp. 305-310.

(b) Ff. 29, 5, 14, 50, 17, 111, 47, 2, 23.

(c) 1 Hale, P. C. 20, 21, 22.
(d) Bac. Ab. Infancy, H.

[infant above the age of fourteen is equally liable to punishment, as a person of the full age of twenty-one.

"malitia supplet ætatem." deed, an infant cannot be guilty of an indictable offence (ƒ); for then a criminal discretion is almost an impossibility in nature. Also, above seven and under fourteen, though an infant shall be primâ facie adjudged to be doli incapax (g), 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 (in case of murder) be sentenced to suffer death. 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

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 atas 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 Under seven years Under seven years of age, in

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

(f) Mir. c. 4, s. 16; 1 Hal. P. C. 27; Dalt. Just. c. 147. See Marsh

v. Loader, 14 C. B., N. S. 535.
(g) See R. v. Owen, 4 C. & P.
236.

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