CHAPTER THE SECOND.
OF THE PERSONS CAPABLE OF COMMITTING
CRIMES.

HAVING, in the preceding chapter, confidered in general the nature of crimes, and punifhments, we are next led, in the order of our diftribution, to enquire what perfons are, or are not, capable of committing crimes ; or, which is all one, who are exempted from the cenfures of the law upon the commiffion of thofe acts, which in other perfons would be feverely punifhed. In the procefs of which enquiry, we muft have recourfe to particular and fpecial exceptions : for the general rule is, that no perfon fhall be excufed from punifhment for defobedience to the laws of his country, excepting fuch as are expreffly defined and exempted by the laws themfelves.

ALL the feveral pleas and excufes, which protect the committer of a forbidden act from the punifhment which is otherwife annexed thereto, may be reduced to this fingle confideration, the want or defect of will. An involuntary act, as it has no claim to merit, fo neither can it induce any guilt : the concurrenec of the will, when it has it's choice either to do or to avoid the fact in queftion, being the only thing that renders

human
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human actions either praifeworthy or culpable. Indeed, to make a complete crime, cognizable by human laws, there muft be both a will and an act. For though, in foro confcientiae, a fixed defign or will to do an unlawful act is almoft as heinous as the commiffion of it, yet, as no temporal tribunal can fearch the heart, or fathom the intentions of the mind, otherwife than as they are demonftrated by outward action, it therefore cannot punifh for what it cannot know. For which reafon in all temporal jurifdictions an overt act, or fome open evidence of an intended crime, is neceffary, in order to demonftrate the depravity of the will, before the man is liable to punifhment. And, as a vitious will without a vitious act is no civil crime, fo on the other hand, an unwarrantable act without a vitious will is no crime at all. So that to conftitute a crime againft human laws, there muft be, firft, a vitious will ; and, fecondly, an unlawful act confequent upon fuch vitious will.

NOW there are cafes, in which will does not join with the act : 1. Where there is a defect of underftanding. For where there is no difcernment, there is no choice ; and where there in on choice, there can be no act of the will, which is nothing elfe but a determination of one's choice, to do or to abftain from a particular action : he therefore, that has no underftanding, can have no will guide his conduct. 2. Where there is underftanding and will fufficient, refiding in the party ; but not called forth and exerted at the time of the action done : which is the cafe of all offences committed by chance or ignorance. Here the will fits neuter ; and neither concurs with the act, nor difagrees to it. 3. Where the action is conftrained by fome outward force and violence. Here the will counteracts the deed ; and is fo far from concurring with, that loaths and difagrees to, what the man is obliged to perform. It will be the bufinefs of the prefent chapter briefly to confider all the feveral fpecies of defect in will, as they fall under fome one or other of thefe general heads : as infancy, idiocy, lunacy, and intoxication, which fall under the firft clafs ; misfortune, and

ignorance,
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ignorance, which may be referred to the fecond ; and compulfion or neceffity, which may proprly rank in the third.

1. FIRST, we will confider the cafe of infancy, or nonage ; which is a defect of the underftanding. Inants, under the age of difcretion, ought not to be punifhed by any criminal profecution whatever ^a. What the age of difcretion is, in various nations is matter of fome variety. The civil law diftinguifhed the age of minors, or thofe under twenty five years old, into three ftages : infantia, from the birth till feven years of age ; pueritia, from feven to fourteen ; and pubertas from fourteen upwards. The period of pucritia, or childhood, was again fubdivided into two equal parts ; from feven to ten and an half was aetas infantiae proxima ; from ten and an half to fourteen was aetas pubertati proxima. During the firft ftage of infancy, and the next half ftage of childhood, infantiae proxima, they were not punifhable for any crime ^b. During the other half ftage of childhood, approaching to puberty, from ten and an half to fourteen, they were indeed punifhable, i found to be doli capaces, or capable of mifchief ; but with many mitigations, and not with the utmoft rigor of the law. During the laft ftage (at the age of puberty, and afterwards) minors were liable to be punifhed, as well capitally, as otherwife.

THE law of England does in fome cafes privilege an infant, under the age of twenty one, as to common mifdemefnors ; fo as to efcape fine, imprifonment, and the like : and particularly in cafes of omiffion, as not repairing a bridge, or a highway, and other fimilar offences ^c: for, not having the command of his fortune till twenty one, he wants the capacity to do thofe 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 leaft liable as others to

{FS}
^a Hawk. P.C.2.
^b Inft.3.20.10.
^c 1 Hal. P.C.20,21,22.
{FE}
commit
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commit) for thefe an infant, above the age of fourteen, is equally liable to fuffer, as a perfon of the full age of twenty one.

WITH regard to capital crimes, the law is ftill more minute and circumfpect ; diftinguifhing with greater nicety the feveral degrees of age and difcretion. By the antient Saxon law, the age of twelve years was eftablifhed for the age of poffible difcretion, when firft the underftanding might open ^d : 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 ftage of difcretion : but, under twelve, 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 leaft ever fince the time of Edward the third, the capacity of doing ill, or contracting guilt, is not fo much meafured by years and days, as by the ftrength of the delinquent's underftanding and judgment. for none lad of eleven years old may have as much cunning as another of fourteen ; and in thefe cafe our maxim is, that “malitia fupplet aetatem.” Under feven years of age indeed an infant cannot be guilty of felony ^e ; for then a felonious difcretion is almoft 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 fuffer 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 fentenced to death, and he of ten years actually hanged ; becaufe it appeared upon their trials, that the one hid himfelf, and the other hid the body he had killed ; which hiding manifefted a confcioufnefs of guilt, and a difcretion to difcern be-

{FS}
^d LL.Athelftan. Wilk.65.
^e Mirr.c.4.§.16. 1.Hal. P.C.27.
^f Dalt. Juft.c.147.
{FE}
tween
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tween good and evil ^g. And there was an inftance in the laft 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 own confeffion of murdering his bedfellow ; there appearing in his whole behaviour plain tokens of a mifchievous difcretion : and, as the fparing 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 unanimoufly agreed by all the judges that he was a proper fubject of capital punifhment ⁱ. But, in all fuch cafes, the evidence of that malice, which is to fupply age, ought to be ftrong and clear beyond all doubt or contradiction.

II. THE fecond cafe of a deficiency in will, which excufes from the guilt of crimes, arifes alfo a defective or vitiated underftanding, viz. in an idiot or a lunatic. For the rule of law as to the latter, which may eafily be adapted alfo 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 thefe incapacities : no, not even for treafon itfelf ^k. Alfo, 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 ; becaufe 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 lofes his fenfes before judgment, judgment fhall not be pronounced ; and if, after judgment, he becomes of nonfane memory, execution fhall be ftayed : for peradventure, fays the humanity of the Englifh law, had the prifoner been of found memory, he might have alleged fome-

{FS}
^g 1.Hal. P.C.26,27.
^h Emlyn on 1 Hal. P.C.25.
ⁱ fofter.72.
^k 3 Inft.6.
{FE}
thing
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thing in ftay of judgment or execution ^l. Indeed, in the bloody reign of Henry the eighth, a ftature was made ^m, which enacted, that if a perfon, being compos mentis, fhould commit high treafon, and after fall into madnefs, 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 ⁿ, the execution of an offender is for example, ut poena ad paucos, metus ad omnes perveniat : but fo it is not when a madman is executed ;but fhould be a miferable fpectacle, both againft law, and of extreme inhumanity and cruelty, and can be no example to others.” But 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 courfe from the punifhment, of any criminal action committed under deprivation of the fenfes : but, if a lunatic hath lucid intervals of underftanding, he fhall anfwer for what he does in thofe intervals, as if he had no deficiency ^o. Yet, in the cafe abfolute madmen, as they are not anfwerable for their actions, they fhould not be permitted the liberty of acting unlefs under proper control ; and, in particular, they ought not to be fuffered to go loofe, to the terror of the king's fubject. It was the doctrine of our antient law, that perfons deprived of their reafon might be confined till they recovered their ^p, without waiting for the forms of a commiffion or other fpecial authority from the crown : and now, by the vagrant acts ^q, a method is chalked out for imprifoning, chaining, and fending them to their proper homes.

III. THIRDLY ; as to artificial, voluntarily contracted madnefs, by drunkennefs or intoxication, which, depriving men of their reafon, puts them in a temporary phrenzy ; our law looks upon this as an aggravation of the offence, rather than as an

{FS}
^l 1 Hal. P.C.34.
^m 33 Hen. VIII.c.20
ⁿ Inft.6.
^o 1 Hal. P.C.31.
^p Bro. Abr. tit. corone.101.
^q 17 Geo.II.c.5.
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D
excufe
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excufe for any criminal mifbehaviour. A drunkard, fays fir Edward Coke ^r, who is voluntarius daemon, hath no privilege thereby ; but what hurt or ill foever he doth, his drunkennefs doth aggravate it : nam omne crimen ebrietas, et incondit, et detegit. It hath been obferved, that the real ufe of ftrong liqouors, and the abufe of them by drinking to excefs, depend much upon the temperature of 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 ^s, drinks through cuftom, founded upon conftitutional neceffity ; a Spaniard drinks through choice, or out of the mere wantonnefs of luxury of luxury : and drunkennefs, he adds, ought to be more feverely punifhed, 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 warmer climate of Greece, a law of Pittacus enacted, “that he who committed a crime, when drunk, fhould receive a double punifhment ;” one for the crime itfelf, and the other for the ebriety which prompted him to commit it ^t. The Roman law indeed made great allowances for this vice : “ per vinum delapfis capitalis poena remittitur ^u. But the law of England, confidering how eafy it is to counterfeit this excufe, and how weak an excufe it is, (though real) will not fuffer any man thus to privilege one crime by another ^w.

IV. A FOURTH deficiency of will, is where 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 fpeak hereafter ; at prefent only obferving, that if any accidental mifchief happens to follow from the per-

{FS}
^r 1.Inft.247.
^s Sp. L.b.14.c.10.
^t Puff. L. of N.b.8.c.3.
^u Ff.49.16.6.
^w Plowd.19.
{FE}
formance
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formance of a lawful act, the party ftands excufed from all guilt : but if a man b doing any thing unlawful, and a confequence enfues which he did not forefee 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 itfelf unlawful, he is criminally guilty of whatever confequence may follow the firft mifbehaviour ^x.

V. FIFTHLY, ignorance or miftake is another defect of will ; when a man, intending to do a lawful act, does that which is unlawful. For here deed and the will acting feparately, there in not that conjunction between them, which is neceffary to form a criminal act. But this muft be an ignorance or miftake of fact, and not an error in point of law. As if a man, intending to kill a thief or houfebreaker in his own houfe, by miftake kills one of his own family, this is no criminal action ^y: 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 miftake in point of law, which every perfon of difcretion 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 ^z, as it was of the Roman ^a.

VI. A SIXTH fpecies of defect of will is that arifing from compulfion and enevitable neceffity, Thefe are a conftraint upon the will, whereby a man is urged to do that which his judgment difapproves ; and which, it is to be prefumed, his will (if left to itfelf) would reject. As punifhments are therefore only inflicted for the abufe of that free-will, which God has given to man, it is highly juft and equitable that a man fhould be excufed for thofe acts, which are done through unavoidable force and compulfion.

{FS}
^x 1 Hal. P.C.39.
^y Cro. Car.538.
^z Plowd.343.
^a Ff.22.6.9.
{FE}
D 2
1. OF
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1. OF this nature, in the firft place, is the obligation of civil fubjection, whereby the inferior is conftrained by the fuperior to act contrary to what his own reafon and inclination would fuggeft : as when a legiflator eftablifhes iniquity by a law, and commands the fubject to do an act contrary to religion or found morality. How far this exfufe will be admitted in foro confcientiae, or whether the inferior in this cafe is not bound to obey the divine, rather than the human law, it is not may bufinefs to decide ; though the queftion I believe, among the cafuifts, will hardly bear a doubt. But, however that may be, obedienced to the laws in being is undoubtedly a fufficient extenuation of civil guilt before the municipal tribunal. The theriff, who burnt Latimer and Ridley, in the bigoted days of queen Mary, was not liable to punifhment from Elizabeth, for executing fo horrid an office ; being juftified by the commands of that magiftracy, which endeavoured to refore fuperftition under the holy aufpices of it's mercilefs fifter, perfecution.

AS to perfons in private relations ; the principal cafe, where conftraint of a fuperior is allowed as an excufe for criminal mifconduct, is with regard to the matrimonial fubjection of the wife to her hufband : for neither fon or a fervant are excufed for the commiffion o any crime, whether capital or otherwife, by the command or coercion of the parent or mafter ^b ; though in fome cafes the command or authority of the hufband, either exprefs or implied, will privilege the wife from punifhment, even for capital offences. And therefore if a woman commit theft, burglary, or other civil offnces the laws of fociety, by the coercion of her hufband ; or merely by his command, which the law conftrues a coercion ; or even in his company, his example being equivalent to a command ; fhe is not guilty of any crime : being confidered as acting by compulfion and not of her own will ^c. Which doctrine is at leaft a thoufand years old in this kingdom, being to be found among the laws of

{FS}
^b Hawk. P.C.3.
^c 1 Hal. P.C.45.
{FE}
king
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king Ina the Weft Saxon ^d. And it appears that, among the northern nations on the continent, this privilege extended to any woman tranfgreffing in concert with a man, and to any fervant that committed a joint offence with a freeman : the male or freeman only was punifhed, the female or flave difmiffed ; “proculdubio quod alterum libertas, alterum neceffitas impelleret ^c.” But (befides that in our law, which is a ftranger to flavery, no impunity is given to fervants, who are as much free agents as their mafters) even with regard to wives, this rule admits of an exception in crimes that are mala in fe, and prohibited by the law of nature, as murder and the like : not only becaufe thefe are of a deeper dye ; but alfo, fince in a ftate of nature no one is in fubjection to another, it would be unreafonabel to fcreen an offnder from the punifhment due to natural crimes, by the refinements and ubordinations of civil fociety. In treafon alfo, (the higheft crime which a member of fociety can, as fuch, be guilty of) no plea of coverture fhall excufe the wife ; no prefumption o the hufband's corecion fhall extenuate her guilt ^f : as well becaufe of the odioufnefs and dangerous confequence of the crime itfelf, as becaufe the hufbnd, having broken through the moft facred tie of focial community by rebellion againft the ftate, has no right to that obedience from a wife, which he himfelf as a fubject has forgotten to pay. In inferior mifdemefnors alfo, we may remark another excepton ; that wife may be indicted and fet in the pillory with her hufband, for keeping a brothel : for this is an offence touching the domftic oeconomy or government of the houfe, in which the wife has a principal fhare ; and in alfo fuch an offence as the law prefumes to be generally conducted by the intrigues of the female fex ^g. And in all cafes, where the offends alone, without the company or command of her hufband, fhe is refponfibel for her offence, as much as any feme-fole.

{FS}
^d cap.57.
^e Stiernhook de jure Sue.n.l.2.c.4.
^f 1 Hal. P.C.47.
^g 1 Hawk. P.C.2,3.
{FE}
2. AN-
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2. ANOTHER fpecies of compulfion or neceffity is what our law calls durefs per minas ^h ; or threats and menaces, which induce a fear of death or other bodily harm, and which take away for that reafon the guilt of many crimes and mifdemefnors ; at leaft before the human tribunal. But then that fear, which compeis a man to do an unwarrantable action, ought to be juft and well grounded ; fuch, “ qui cadere poffit in virum conftantem, non timidum et meticulofum,” as Bracton expreffes it ⁱ, in the words of the civil law ^k. Therefore, in time of war or rebellion, a man may be juftified in doing many treafonable acts by compulfion of the enemy or rebels, which would admit of no excufe in the time of peace ^l. This however feems only, or at leaft principally, to hold as to pofitive crimes, fo created by the laws of fociety ; and which therefore fociety may excufe ; but not as to natural offences, fo declared by the law of God, wherein human magiftrates are only the executioners of divine punifhment. And therefore though a man be violently affaulted, and hath no other poffible means of efcaping death, but by killing an innocent perfon ; this fear fhall not acquit him of murder ; for he ought rather to die himfelf, than efcape by the murder of an innocent ^m. But in fuch a cafe he is permitted to kill the affailant ; for there the law of nature, and fefl-defence it's primary canon, have made him his own protector.

3. THERE is a third fpecies of neceffity, which may be diftinguifhed from the actual compulfion of external force or fear ; being the refult of reafon and reflection, which act upon and conftrain a man's will, and oblige him to do an action, which without fuch obligation would be criminal. And that is, when a man has his choice of two evils fet beore him, and, being under a neceffity of choofing one, he chufes the leaft

{FS}
^h See Vol.1. pag.131.
ⁱ l.2.f.16.
^k Ff.4.2.5,& 6.
^l 1 Hal. P.C.50.
^m Ibid.51.
{FE}
pernicious

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pernicious of the two. Here the will cannot be faid freely to exert itfelf, being rather paffive, than active ; or, if active, it is rather in rejecting the greater evil than in choofing the lefs. Of this fort is that neceffity, where a man by the commandment of the law is bound to arreft another for any capital offence, or to difperfe a riot, and refiftance is made to his authority : it is here juftifiable and even neceffary to beat, to wound, or perhaps to kill teh ofenders, rather than permit the murderer to efcape, or the riot to continue. for the prefervation of the peace of the kingdom, and the apprehending of notorious malafctors, are of the utmoft confequence to teh public ; and therefore excufe felony, which the killing would otherwife amount to ⁿ.

4. THERE is yet another cafe of neceffity, which has occafioned great fpeculation among the writers upon general law ; viz. whether a man in extreme want of food or clothing may juftify ftealing either, to relieve his prefent neceffities. And this both Grotius ^o and together with many other of the foreign jurifts, hold in the affirmative ; maintaining by many ingenious, humane, and plaufible reafons, that in fuch cafes the community of goods by kind of tacit conceffion of fociety is revied. And fome even of our own lawyers have held the fame ^q ; though it feems to be an unwarranted doctrine, borrowed from the notions of fome civilians : at leaft it is now antiquatd, the law of England admiting no fuch excufe at prefent ^r. And this it's doctrine is agreeble not only to the fentiments of many of the wifeft antients, particularly Cicero ^s, who holds that “fuum cuique incommodum ferendum eft, potius quam de alterius commodis detrahendum ;” but alfo to the Jewith law, as certified by king Solomon himfelf ^t : “if a thief fteal to fatisfy his foul his when he is hungry, he fhall reftore fevenfold,

{FS}
ⁿ 1 Hal. P.C.53.
^o de jure b.& p.l.2.c.2.
^p L.of Nat. and N.l.2.c.6.
^q Briton, c.10. Mirr. c.4.§.16.
^r 1 Hal. P.C.54.
^s de off.l.3.c.5.
^t Prov.vi.30.
{FE}
“and
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“ and fhall give all the fubftance of his houfe :” which was the ordinary punihment for theft in that kingdom. And this is founded upon the higheft reafon : for men's properties would be under a ftrange infecurity, if liable to be invaded according to the wants of others ; of which wants no man can poffibly be an adequate judge, but the party himself who pleads them. In this country efpecially, there would be a peculiar impropriety in admitting fo dubious an excufe : for by our laws fuch fufficient provifion is made for the poor by the power of the civil magiftrate, that it is mipoffible the moft needy ftranger fhould ever be reduced to the neceffity of thieving to fupport nature. This cafe of a ftranger is, by the way, the ftrongeft inftance put by baron Puffendorf, and whereon he builds his principal arguments : which, however they may hold upon the continent, where the parfimonious induftry of the natives orders every one to work or ftarve, yet muft lofe all their weight and efficacy in England, where charity is reduced to a fyftem, and interwwoven in our very conftitution. Therefore our laws ought by no means to be taxed with being unmerciful, for denying this privilege to the neceffitous ; efpecially when we confider, that the king, on the reprefentation of his minifters of juftice, hath a power to foften to foften the law, and to extend mercy in cafes of peculiar hardfhip. An advantage which is wanting in many ftates, particularly thofe which are democratical : and thefe have in ti's ftead introduced and adopted, in the body of the law itfelf, a multitude of circumftances tending to alleviate it's rigour. But the founders of our conftiution thought it better to veft in the crown power of pardoning particular objects of compaffion, than to countenance and eftablifh theft by one general undiftinguifhing law.

VII. IN the feveral cafes before-mentioned, the incapacity of committing crimes arifes from a deficiency of the will. To thefe we may add one more, in which the law fuppofes an incapacity of doing wrong from the excellence and perfection of the per-

fon ;
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fon ; which extend as well to the will as to the other qualities of his mind. I mean the cafe of the king : who, by virtue of his royal prerogative, is not under the coercive power of the law ^u ; which will not fuppofe him capable of committing a folly, much lefs crime. We are therefore, out of reverence and decency, to forbear any idle enquiries, of what would be the confequence if the king were to act thus and thus : fince the law deems fo highly of his wifdom and virtue, as not even to prefume it poffible for him to do any thing inconfiftent with his ftation and dignity ; and therefore has made no provifion to remedy fuch a grievance. But of this fufficient was faid in a former volume ^w, to which I muft refer the reader.

{FS}
^u 1 Hal. P.C.44.
^w Book. I. ch.7. pag.244.
{FE}
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