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capital punishment to be found at this day in England, no less than one hundred and sixty crimes having been declared by parliament to be felonies without benefit of clergy, and hence punishable with death.1
Results of Harsh Penalties. So dreadful a list, instead of diminishing, increases the number of offenders. The injured, through compassion, will often forbear to prosecute; juries from the same motive will ignore their oaths, and either acquit the guilty or mitigate the nature of the offense, and judges will respite numerous convicts and recommend them to the royal mercy. Among so many chances of escaping, the hardened offender overlooks the multitude that suffer ; he boldly engages in some desperate attempt, and if unexpectedly the hand of justice falls upon him, he deems himself unfortunate in falling at last a sacrifice to those laws, which long impuuity has taught him to contemn.
CHAPTER II.—PERSONS CAPABLE OF COMMITTING
Exemption from Punishment. In this chapter we will inquire what persons are exempted from the censures of the law, upon the commission of those acts, which in other persons would be severely punished. As a general rule, no one shall be excused from disobeying the laws; but this rule is subject to special exceptions. All the several pleas and excuses, which protect the committer of a forbidden act from the punishment otherwise annexed thereto, may be reduced to the want or defect of will.
Vicious Will Requisite. An involuntary act cannot induce any guilt; the concurrence of the will, being the only thing that renders human action either praiseworthy or blamable. To make a complete crime cognizable by human laws, there must be both a will and an act. For though, in foro conscientiae, a fixed design to do an unlawful act is almost as heinous as its commission, yet no temporal tribunal can punish for what it does not know. Hence an overt act, or some open evidence of an intended crime, is necessary to render a man liable to punishment. And as a vicious will, without a vicious act, is no civil crime, so an unwarrantable act, without a vicious will, is no crime at all. So to constitute a crime, there must include both a vicious will and an unlawful act. Three cases exist when the will does not join with the act.
1 This list, since Blackstone's day, has been greatly diminished.
Will nct Joining with the Act. (1.) Where there is a defect of understanding. Where there is no discernment, there is no choice, and where there is no choice, there can be no act of the will; he therefore who has no understanding, can have no will to guide his conduct. (2.) Where there is understanding and will sufficient, but not called forth at the time of the act; which is the case in all offences committed by chance or ignorance; here the will is neuter, and neither concurs nor disagrees. (3.) Where the action is constrained by some outward force. Here the will counteracts the deed, and is so far from concurring with it, that it protests against what the man is obliged to perform.
Divisions of Incompetent Persons. Infancy, idiocy, lunacy and intoxication belong to the first class; misfortune and ignorance to the second; and compulsion or necessity to the third.
1. Infants. Infancy or nonage is a defect of the understanding. Infants, under the age of discretion, ought not to be punished by any criminal prosecution whatever. What is the age of discretion, differs in various nations.
By the Civil Law. The civil law distinguished the age of minors, or those under twenty-five years old, into three stages : infantia, up to seven years of age; puerita, from seven to fourteen, and pubertas, from fourteen upwards. The period of puerita was subdivided into two equal parts. During the first stage of infancy, and the next half stage of childhood, they were not punishable for any crime. During the other half of childhood, approaching to puberty, from ten and a half to fourteen years, they were punishable, if found to be capable of mischief, but not with the utmost rigor of the law. During the last stage, at the age of puberty and subsequently, minors were liable to be punished, capitally or otherwise.
Minor's Privileges. The law of England does in some cases privilege a minor as to common misdemeanors, so as to escape fine and imprisonment; particularly in cases of omission, as neglect to repair a highway, and similar offences; for not having his property until twenty-one, he cannot do what the law may require. Where there is a breach of the peace, a battery, or the like, a full grown minor above fourteen, is equally liable to punishment, as an adult.
Capital Crimes. With regard to capital crimes, the law is still more circumspect, distinguishing the degrees of age and discretion. By the ancient Saxon law, the age of twelve was established as the age of possible discretion, when first the understanding might open, and from that time until the offender was fourteen, he might or might not be guilty of a crime, according to his natural capacity. Under twelve, it was held, he could not be guilty in will, neither after fourteen could he be supposed innocent, of any capital crime which he committed.
Capacity, rather than Age. But now, the capacity of doing ill is not so much measured by years, as by the strength of the delinquent's understanding and judgment. For one lad of eleven years may have as much cunning as another of fourteen. Under seven years, an infant cannot 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 is doli capax, and could discern between good and evil, he may be convicted, and suffer death. Thus a girl of thirteen was burned for killing her mistress, and a boy of ten, and another of nine, who had killed their companions, sentenced to death, and he of ten years actually hanged, because it appeared that one boy hid himself, and the other hid the body he had killed, which hiding manifested a consciousness of guilt, and a discretion to judge between good and evil. A boy of eight was executed for firing two barns, it appearing that he possessed malice, revenge and cunning. But in all such cases, the evidence of that malice, which is to supply age, ought to be strong, and very clear.
II, Idiots and Lunatics. This defect of will, which excuses crimes, arises from a defective or vitiated understanding. In criminal cases, idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities; no, not even for treason itself.
Lunacy, pendente Lite. If a man, in his sound memory, commits a capital offence, and before arraignment, he becomes mad, be vught not to be arraigned, because he is not able to properly plead. If, after he has pleaded, he lose his reason, he shall not be tried, for how can he make his defence? If, after he be tried and found guilty, he becomes insane before judgment, judgment shall not be pronounced; and if after judgment, he becomes of non-sane memory, execution shall be stayed, for had he been of sound memory, he might have alleged something in stay of judgment or execution.
Lucid Interval. Trial by Jury. If there be any doubt, whether the party be compos or not, this shall be tried by a jury. Total idiocy or absolute insanity excuses from the guilt, and of course from the punishment of any crime committed under such deprivation of the senses, but if a lunatic has lucid intervals, he shall answer for what he does in those intervals. Madmen, not being answerable for their actions, should not be allowed liberty of acting, unless under control.
III. Drunkards. As to voluntarily contracted madness by intoxication, which depriving men of their reason, puts them in a temporary frenzy, our law looks upon this as an aggravation of the offence, rather than as an excuse for criminal misbehavior. Coke asserts, that a drunkard has no privilege thereby, but what hurt soever he does, his drunkenness aggravates it.
Effect of Climate. The use and abuse of strong liquors depend much upon the temperature of the climate. The same indulgence which is required to make the blood move in Norway, would make an Italian mad. A German, says Montesquieu, drinks through custom, founded upon constitutional necessity; a Spaniard drinks through choice, out of the mere wantonness of luxury; and drunkenness 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, as in Germany and more northern countries.
No Excuse for Crime. 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, the other for the ebriety which prompted him to commit it. The Roman laws made great allowance for this crime. But the law of England, considering how easy it is to counterfeit this excuse, and how weak an excuse it is, will not suffer it to palliate a crime,
IV. Misfortune or Chance. This is a deficiency of will, where a man commits an unlawful act not by design. Here the will is neutral, and does not co-operate with the deed, which therefore lacks one main ingredient of a crime. If any accidental mischief happens to follow the performance of a lawful act, the party stands excused from all guilt; but if a man be doing anything unlawful, and an unforseen consequence ensues, which he did not foresee or intend, as the death of a man or the like, his want of foresight shall be no excuse.
V. Ignorance or Mistake, An injury resulting from such causes, is 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 burglar in his own house, by mistake, kills one of his own family, this is no criminal act. For a mistake in point of law, which every person of discretion is presumed to know, is in criminal law, no defence. Ignorantia legis excusat neminem is as much a maxim of our law as it was of the Roman.
VI, Compulsion and Necessity. These are a constraint upon the will, whereby a man is urged to do that which his judgment disapproves, and which, it is presumed, his will would reject. As punishments are only inflicted for the abuse of that free will, which God has given to man, it is just that a man should be excused for those acts, which are done through unavoidable force and compulsion.
1, Civil Subjection, By this, the inferior is constrained by the superior to act contrary to what his own reason and inclination would suggest; as when a legislator establishes iniquity by a law, and commands the subject to an act contrary to morality or religion. How far this excuse will be admitted in foro conscientiae, or whether one in such case is bound to obey the divine rather than the human law it is not for us to decide ; but obedience to the laws is undoubtedly a sufficient extenuation of civil guilt before the municipal tribunal.
Wife's Subjection to Husband. As to persons in private relations; the principal case, where constraint of a superior is allowed as an excuse for criminal misconduct is with regard to the matrimonial subjection of the wife to her husband. Neither a son nor servant are excused for the commission of any crime, by the coercion of a parent or master; but in some cases, the