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Puff, b. 8. c. 3.

THE guilt of offending against any law whatsoever, necessarily 1 Hale, 15. supposing a wilful disobedience, can never justly be imputed to 4.Comm. 21. those who are either incapable of understanding it, or of conforming themselves to it. Therefore, before I come to the several kinds of offences, I shall shew what degrees of discretion and freedom are required in the commission of them. For the better understanding whereof, I shall consider what offenders are excusable.—First, in respect of their want of reason. Secondly, in respect of their subjection to the power of others. .

Sect. 1. As to The First Point, it is to be observed, that B. Cor. 61. 170. those who are under a natural disability of distinguishing between Pult. 125, 126.

Dalt. C. 147. 1 Hale, 16. 29. 515. Co. Lit. 247. 4 Co. 124. Hob. 224. 8 St. Tr. 324.

Sum. 10. 28. 43. 3 Inst. 4.

(1) Legal guilt is a violation of positive law; a crime or misdemeanor may, therefore, be defined the “wilful” commission or omission of any acts in violation of a public law either forbidding or commanding it. This definition comprehends both crimes and misdemeanors, which are synonimous terms, though in common usage the word “ crimes" is made to denote offences of a deeper and more atrocious dye, while smaller faults and omissions of less consequence are comprised under the gen. tler name of “misdemeanors.” (Bl. Com. lib. 4o C. 1.) But the act done or omitted, in order to be criminal must be wilful. The consent of the will is that which renders human actions either com


mendable or culpable, and where there is no will
to commit an offence there can be no transgres-
sion, saith Sir M. Hale (H. P. C. c. 2.) That
learned judge then goes on to state those causes
which the law of England notices as excusing the
fact from incapacity or defect of will, which he
classes as follows:-1. Natural. 2. Accidental.
3. Civil Incapacities or Defects. The natural is
that of infancy.-The accidental defects of will
1. Dementia. 2. Casualty or Chance. 3. Igno-

The civil defects or want of will-1. Civil
Subjection. 2. Compulsion. 3. Necessity. 4.



good and evil, as (2) ia fanis under the age of discretion, ideots, and lunatics (3); are not punishable by any criminal prosecution whatsoever :


(2) Infancy, as is above observed, is a defect of eleven, and twelve, have been convicted and exethe will or understanding. Infants under the age cuted. (Fost. 72. Bl. Com. b. 4. c. 2. H. H. P. of discretion dught not to be punished by any cri. C. c. 3. p. 26.) At the completion of fourteen minat prosecution. What the age of discretion is, years of age, infants are fully responsible for any

js matter.of variety in different nations. (Bl. Com. felonious act, being then presumed to bave arrived ...b.4. c. 2.)

at the age of discretion. (Co. L. 247.) * By the civil law, the age is distributed into seve- In certain cases of misdemeanor, however, the 'ral periods for several purposes. The complete law privileges a minor under twenty-one years of full age as to matters of contract is twenty-five age from punishment; but these in general are years. (Inst. lib. 1. tit. 23. Dig. lib. 4. tit. 4.) But cases of non feasance, because in such case laches according to the law of England, twenty-one years. shall not be imputed to bim, (Bro. Sauver default. (Co. L. 103. Lit. sect. 104.)

50. Cro. Ja. 465, 466. Co. L. 246. b.) as non As to matters of crimes and criminal punish- repair of a bridge, &c. (BI. Com. 4. c. 2.) ment, especially that of death, the civil law dis (3) Ideots, lunatics during their lunacy, and tinguishes the age of minors into three periods, madmen, are all incapable of committing crime, as INPANTIA, from the birth until seven years of age; falling within that accidental defect of the will inPUERITIA, from seven to fourteen years of age; cluded by Lord Hale under the term dementia, or and PUBERTAS, from fourteen years and upwards. insanity. An ideot is one of defective understandIndeed pubertas plena is eighteen years. (Dig. ing from his birth. He is thus described by Fitz lib. 1. tit. 7. de Adoptionibus, c. 40. sect. 1. Herbert. (N. B. 532.) “He who shall be said to Inst. eod. tit. sect. 4.) The period of pueritia is be a sot and ideot from his birth is such a person again sub-divided into two equal parts. From who cannot account or number twenty pence, nor seven years to ten and a half is atas infantiæ prori- can tell who was his father or mother, nor how old ma. From ten years and a half until fourteen is he is, &c. so as it may appear he hath no under. atas pubertati prorima. Fourteen years is the age standing of reason what shall be for his profit, or of pubertas in relation to crines and punishments. what for his loss. But if he have such understandWith respect to the first age, infantia or infancy, -ing that he know and understand his letters, and which lasts to the period of seven years within do read by teaching of another man, then it seems that age and the next period of atas infantiæ prori. he is not a sot or natural ideot.” But, as Lord ma, that is, to ten years and a half, there could be Hale observes, these may be too narrow grounds no guilt of a capital offence, and therefore the in though they be evidence, and the question is one fant could not be punished, infants of that age of fact, triable by a jury and sometinies by inspecbeing considered doli incapaces. (Dig. lib. 47. tit. tion. (H. P. C. C. 4.) 12. de Sepulchro violato, lib. 3. sect. 1.) The A lunatic is one who has lucid intervals, and is next period of pueritia was from ten years and a only occasionally insane. Madness is fixed and half until fourteen, being the age pubertati proxi permanent disease of mind, causing continual insama. Within this period the infant was prima facie nity. If a person commit a crime wbile under the considered doli capar, and so might be punished deprivation of reason, he is not criminally responfor a capital offence, but with a power in the judge sible ; and if it shall appear to the jury that the to mitigate the rigor of the sentence on account of accused was labouring under insanity at the time the youth of the offender. (Dig. lib. 4. tit. 4. de Mi the fact was committed, they ought to pronounce noribus, c. 37. Sec. 1. in Delictis.) Fourteen years a verdict of not guilty ; but inasmuch as it is danwas full age as to responsibility in relation to gerous to the public that insane persons, who have crimes and punishment. (Dig. lib. 29. tit. 5. de shewn a mischievous disposition, should be sufSenatus-Consulto Silaniano, sect. 32.)

fered to go at large, it is enacted by the 17 G. 2. Thus far as to the civil law. By the law of c. 5. that dangerous lunatics, who are vagrants, England an infant ander seven years of age can are to be imprisoned and sent to their proper not be guilty of felony, whatever circumstances of homes. But this act only applied to the cases of discretion may appear : for, er presumptione juris, he vagrants, and therefore, by a subsequent statute, cannot have discretion, and no averment shall be (39 & 40 G. 3. c. 94.) it is enacted, sect. 1. “that received against that presumption; and in matter in all cases where it shall be given in evidence upon of crime there is no difference as to the age of the trial of any person charged with treason, mur. male or female, though for certain civil purposes der, or felony, that such person was insane at the there is a distinction adopted between the ages of time of committing such offence, and such person the different sexes. (H. H. P. C. c. 3.) With re- shall be acquitted, the jury shall be required to spect to the whole of the next period, from seven find specially whether such person was insane at to fourteen years of age, the law of England pre the time of the commission of such offence, and to sumes in favour of the infant that he is doli incapar, declare whether such person was acquitted by thern but this presumption may be rebutted by evi on account of such insanity; and if they shall find dence; and if it shall appear that the infant was that such person was insane at the time of com. doli capar, he may be convicted of a capital crime mitting such offence, the court, before whom such and executed. And our law books have preserved trial shall be had, shall order such person to be several instances where children of the ages of ten, kept in strict custody, in such place and in such


v. 57.
m. 10.


truth or noko at his trial is in a law, if it be doubt

Sect. 2. Indeed it was anciently holden, in respect of that high 2 Roll. 524.

OF F. Cor. 351. regard which the law has for the safety of the king's person, that a madman might be punished as a traitor (4) for killing or offer- Sum. 43. ing to kill the king; but this is contradicted by the later opi- 3 Inst. 6.

Co. Lit. 247. nions.

4 Co. 124.

1 Hale, 36, 37. 4 Comm. 25. Sect. 3. And it seems agreed at this day, that if one who has 26 Ass. 27. committed a capital offence become non-compos before convic-s tion, he shall not be arraigned; and if after conviction, that he 1 And. 107. shall not be executed.


3 last. 4. 6. 1 Hale, 34, 35. 4 St. Tr. 205. 8 St. Tr. 285. 4 Comm. 24, 25. 595. Sect. 4. And, by the common law, if it be doubtful whether a 1 And. 107. criminal who at his trial is in appearance a lunatic, be such in

ne, Lunoti he was in 1 Sav. 50. 56. truth or not, it shall be tried by an inquest of office, to be returned by the sheriff of the county wherein the court sits ;(5) and if it be found by them that the party only feign himself mad, and he still refuse to answer, he shall be dealt with as one that stands mute. (6)

Sect. 5. And if one who wants discretion commit a trespass q R. Abr. 547. against the person or possession of another, he shall be com- B. Cor. 6.

Hob. 134. pelled in a civil action to give satisfaction for the damage.

Co. Lit. 247. 289. Plow. 364. 2 Inst. 284. 414. Pop. 141. Brownl. 197. Noy, 129. C. Jac. 467. 1 Hale, 15, 16. 20. 3 Bac. Ab. 131. 2 Comm. 291. 4 Comm. 22. Sect. 6. And he who is guilty of any crime whatever through Co. Litt. 247.

:c 1 Hale, 32. bis voluntary drunkenness, shall be punished for it as much as if he had been sober.

4 Co, 125. Dalt. c. 148. 4 Comm. 26. 8 St. Tr. 285.

Sect. manner as to the court shall seem fit, until his Ma- lawfully using a hand gun unintentionally sets fire jesty's pleasure shall be known. And it shall be to a barn full of corn, (which is felony if wilfully thereupon lawful for his Majesty to give such · done,) he shall not be guilty of felony, though his order for the safe custody of such person during act in using the gun was unlawful. This at least is his pleasure, in such place and in such manner as the opinion of Sir M. Hale (H. P. C. vol. i. p. to his Majesty shall seem fit.” And by sect. 2. of 569.) contrary to some older authorities. (Dalton.) the same act, where an insane person is indicted, The opinion of Hale seems most consonant to and cannot be tried on account of his insanity, reason and justice, and accords with the maxim of and his insanity is found by a jury inpannelled for Lord Bacon " In criminalibus sufficit generalis mathat purpose, he is to be dealt with in like manner. litia intentionis cum facto paris gradus." (Re

The next accidental defect of the will, as stated gula 15.) by Lord Hale, though not noticed here by Mr. (4) See 33 H. 8. c. 20. repealed by 1& 2 P. Serj. Hawkins, is casualty or chance; that is, & M. c. 20. 2 State Trials, 7. where a party has committed an act which he did (5) It may be tried either by the inspection of not intend to have done. If any accidental mis- the court, 1 Hale, 33. Tr. p. Pais, 14. Fitz. N. B. chief happens in the prosecution of a lawful act, 517,- by evidence given to the jury, who are the party not intending the thing that happened, charged to try the indictment, 3 Bac. Abr. 81. stands excased. But if a man be doing that which i Hale, 33. 35, 36. Savil, 50. 1 And. 107.-or, is unlauful, and a consequence follows which he being a collateral issue, the fact may be pleaded did not intend or foresee, his want of foresight shall and replied to ore tenus, and a venire awarded, rebe no excuse. (B.Com. v. 4. c. 2.) But in order turnable instanter, in the nature of an inquest of to make a party guilty of felony, under these cir- office. Fost. 46. Kel. 13. 1 Lev. 61. 1 Sid. 7%. cumstances, it should seem that his original inten- 4 Comin. Appen. s. 3. And this method, in cases tion should be a felonious intention. Where a party of importance, doubt, or difficulty, the court will, intending to commit one felonious act unintention in prudence and discretion, adopt. i Hale, 35. ally commits another felonious act, he is clearly Sav. 56. 1 And. 154. guilty of felony ; but where the original intention (6) For the consequences of standing mute, sce was only to commit a trespass, as where a man un- Bk. II. c. 13. s. 9.



S. P. C. 16.

Kely. 53. Sect. 7. Also he who incites a madman to do a murder or other Dalt. p. 533. crime, is a principal offender, and as much punishable as if he had 1 Hale, 617.

· done it himself. F. Cor. 118. Sect. 8. And if it appear by the circumstances, that an infant

under the age of discretion could distinguish between good and 12 Ass. 30. B. Cor. 6. 61. 6.61.


evil, as if one of the age of nine or ten years kill another, and hide 133. 136. the body, or make excuses, or hide himself, he may be convicted

and condemned, and forfeit, &c. as much as if he were of full age. 35 H. 6. 11. 1 Hale, 434.

· But in such a case the judges will in prudence respite the execu569, 570. ·tion, in order to get a pardon: and it is said, that if an infant, Plow, 19.

apparently wanting discretion, be indicted and found guilty of Pult. 125. Foster, 70.

felony, the justices themselves may dismiss him without a pardon, (a) 1 Hale, 27. &c.-+ But this authority to dismiss him must be understood (a)

of a reprieve before judgment, or that the jury find the prisoner within the age of seven years, or not of sufficient discretion to

judge between good and evil. Leges Inæ, 58. Sect. 9. As to THE SECOND POINT, viz. how far those are to be S. P. C. 16. 42. excused who are under the power of others :- A feme covert is so 27 Ass. 40. Sum. 65.

much favoured in respect of that power and authority which her Kely. 31. husband has over her, that she shall not suffer any punishment 1 Hale, 45.516. for committing a bare theft (7) in company with, or by coercion B. Cor. 16. 108. 2 Dalt. 134. 157. O, her nusband.

: of, her husband. 4 Comm. 28. 3 Inst. 108.

Sect. 10. Neither shall she be deemed accessary to a felony for Sum. 65. receiving her husband who has been guilty of it, as her husband 1 Hale, 44.

shall be for receiving her. Sum. 65, 66. Sect. 11. But if she commit a theft of her own voluntary act, Dalt. 104. or by the bare command of her husband, or be guilty of treason, F. Cor. 199. 383.

9. murder, or robbery, in company with, or by coercion of, her hus2 Bk. 3. 29. band, she is punishable as much as if she were sole. 1 Hale, 45.516. Lucas, 63. Kely. 31. S. P. C. 13. 142. % Comm. c. 20. 4 Comm. 29.



(7) The principle upon which the wife is ex cused from punishment for offences committed in her husband's company is, that she owes him .the highest obedience. And this the law of England carries so far as to excuse her from the punishment of certain felonies committed in his presence, which the law presumes to be equivalent to coercion and command on his part. But she is answerable in all cases when she offends alone, and Mr. Seri. Hawkins states above, that she is responsible in cases of treason, murder, and robbery, though committed in company with her husband. With respect to treason and murder, there is no doubt. But it may be doubted whether he is correct when he says she is not privileged in robbery. It is not a more heinous offence than burglary, and in the latter case she is privileged (Kelyuge, 31.) Treason and murder form exceptions, the first being founded in policy, and murder propter odium delicti. This presumed coercion, however, arising from the presence of the husband, is but a legal presumption, and like other legal presumptions

may be repelled by evidence, to shew that she was
the instigator of the offence, in which case she, ás
well as the husband, may be convicted, (1 H. H.
P. C. 516.) And herewith agrees the ancient law
as stated by Bracton, (lib. 3. c. 32.) who says,
Quid erit si uxor cum viro conjuncta fuerit, vel
confessa fuerit quod viro suo consilium præstiterit
" et 'auxilium ? Nunquid tenebantur ambo ? imò
“ul videtur"-and he goes on to add, " sicut sunt
participes in crimine, ita debent esse participes in
pæna." From the same author it also appears,
that if the stolen goods were found in her own
peculiar possession, it was a presumption of her
guilt. “In certis casibus," says he (in the same
chapter) “ de furto tenebitur usor si furtum inve-
niatur sub clavibus, quas quidem claves, habere
debet uxor sub custodia et cura sua ; claves, vis.
dispensæ sux, arcæ suæ et scrinii sui, et si ali-
* quando furtum sub clavibus istis inveniatur, uxor
* cum viro culpabilis erit, sc. vir si consenserit vel
* rem et warrantizabit.

1 Sid.410.


Ab. 294.

Sect. 12. Also a wife may be indicted together with her hus- 2 Roll. 89. band, and condemned to the pillory with him for keeping a 3 Keb. 34. bawdy-house; for this is an offence as to the government of the

Hob. 95. house, in which the wife has a principal share; and also such an 3 Salk. 384. offence as may generally be presumed to be managed by the intrigues of her sex.

Sect. 13. And generally a feme covert shall answer, as much as 9 Co.72. if she were sole, for any offence not capital, against the common C. Jac. 482. law, or statute: and, if it be of such a nature that it may be com- 1

ure that it movho com 1 Sid. 210. mitted by her alone, without the concurrence of the husband, she 2 Keb. 634. may be punished for it without the husband, by way of indict- Hob. 93.

3 Keb. 34. ment; which being a proceeding grounded merely on the breach 95 of the law, the husband shall not be included in it for an offence to which he is no way privy. And if a woman bring a malicious 8 Hen. 4. 17. appeal for the death of her husband, known by her to be alive, F. Cor. 73.

B. Imp. 103. she may be imprisoned for the false appeal, till she make fine to the king, and the husband shall go at large. But if a wife incur Noy, 103. the forfeiture of a penal statute, the husband may be made a Sav. 25. party to an action or information for the same (as he may be 1 ko generally to any suit for a cause of action given by his wife), and shall be liable to answer what shall be recovered thereon.

Sect. 14. Neither a son nor a servant are excused the commis- Sum. 66. sion of any crime, whether capital or not capital, by the command Moor, 813.

Dalt. 504. or coercion of the father or master.(8),

1 Hale, 44. (8) There are also other defects of will which compos mentis is bound to know the law and presave the parties from guilt and punishment; as sumed so to do, " Ignorantia eorum quæ quis scire Ignorance.” But this must be an ignorance of " tenetur not excusat,”(Plowden, 343. a. H.H.P.C. fact, as where one, upon being alarmed in the c. 6.) Compulsion and fear are also matters of night by the cry of robbers breaking into his excuse. As where an enemy compels a man to dwelling-house, in mistake killed a person who had serve against his lawful sovereign, (H. H. P. C. c. been secreted in his house by his servant, supposing 8. & 9.) But these circuinstances of excuse must him to have been one of the thieves; and not an be proved hy the prisoner, unless they arise out of ignorance of law ; for ignorance of the law excuses the evidence against him, (Foster, 255. Lord no one. Every one of the age of discretion and Raymond, 1493.)





OF OFFENCES against MAN, some are more immediately against Prin. P. L 116. THE KING, others more immediately against the subject.

Offences (1) It is, perhaps, one of the most important rights text of law. Sir Edward Coke calls it a blessed of a free state, that the law of high treason should statute. And although, since the period of its first be well defined, and that what acts shall and shall enactment, the Statute Book of England, in the not be considered treason should be clearly ascer- times of tyranny and of faction, has been disgraced tained. If the crime of high treason be indefinite, with many absurd and wanton enactments on the says Baron Montesquieu, this alone is sufficient to subject of high treason, yet in the healthier times make the government degenerate into arbitrary of our constitution, we have always recurred to this power, -Sp. L. b. 12, c. 7. With us the statute "statute as to a standard which ought not to have of 25 Ed. 3. c. 2. has always been considered as a been departed from. The statute itself created no firm bulwark and protection of the subject against new treason, but the matters therein declared to be the oppression of sovereign power under the pre- high treason were all clearly so considered at com


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