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 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 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 to 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 all the several species of defect in will, as they fall under some one or other of these general heads; as infancy, idiotcy, 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. 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, in various nations, is matter of some variety. The civil law has 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 common misdemeanors: so as to escape fine, imprisonment, and the like: and particularly in cases of omission, as 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

(a) Hawk. P. C. b. 1, c. 1, s. 2. Infancy, in reference to civil cases, has been treated of, sup. vol. 11. p. 314, et seq.

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

(c) 1 Hale, P. C. 20, 21, 22.

any perjury or cheating (d),-for these [an infant above the age of fourteen is equally liable to suffer, as a person of the full age of twenty-one.

With regard to more heinous crimes the 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 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 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 "malitia supplet ætatem." Under seven years of age, indeed, an infant cannot be guilty of felony (ƒ); for then a felonious discretion is almost an impossibility in nature; but at eight years old he may be guilty of felony (g). Also, above seven and under fourteen, though an infant shall be prima facie adjudged to be doli incapax (h), 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 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 barns; and it appearing that he had

(d) Bac. Ab. Infancy, H.

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

(f) Mir. c. 4, s. 16; 1 Hal. P. C.

27.

(g) Dalt. Just. c. 147.

(h) Vide R. v. Owen, 4 C. & P. 236.

found guilty, conThus also, in still

[malice, cunning, and revenge, he was demned, and hanged accordingly (m). later times, a boy of ten years old was convicted on his own confession of murdering his bedfellow, there appearing in his whole behaviour plain tokens of a mischievous discretion; and, as the sparing this boy merely on account of his tender years might be of dangerous consequence to the public, by propagating a notion that children might commit such atrocious crimes with impunity, it was unanimously agreed by all the judges that he was a proper subject of capital punishment (n). But, in all such cases, the evidence of that malice, which is to supply age, ought to be strong and clear beyond all doubt and contradiction.] After an infant has attained fourteen, he is presumably doli capax, and has no privilege by reason of his nonage, except in cases of omission and the like, as already noticed (o) and at twenty-one, when infancy ceases, no privilege whatever in respect of age is recognized by law.

Another case in which the defect of understanding excuses from guilt, is that of [an idiot or a lunatic; for the rule of law as to the latter, (which may be easily adapted also to the former,) is that "furiosus furore solum punitur (p)." In criminal cases, therefore, idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities; no, not even for treason itself (q). Also] by the common law [if a man in his sound memory commits a capital offence, and, before arraignment for it he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it, with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defence? If, after he be tried and found

(m) Emlyn on 1 Hal. P. C. 25. (n) Foster, 72.

(o) Vide sup. p. 96.

(p) As to the state of the law relative to idiots and lunatics in

general, vide sup. vol. 1. p. 480; vol. 11. pp. 62, 529; vol. 111. pp. 226

et seq.

(9) 3 Inst. 6.

[guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of nonsane memory, execution shall be stayed; for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution (r).] And special provisions, of the same tendency, are now made by statute; for by 39 & 40 Geo. III. c. 94 (s), it is enacted, that if a person, charged with any offence, be brought up to be discharged for want of prosecution, and appear to be insane, the court may order a jury to be impanelled to try the sanity; and if they find him insane, may order him to be kept in custody till the pleasure of the Crown be known; -that if a person, indicted for any offence, appear insane, the court may (on his arraignment) order a jury to be impanelled to try the sanity; and if they find him insane, may order the finding to be recorded, and the insane person to be kept in like manner;-and that if, upon the trial for treason, murder or felony, insanity at the time of committing the offence is given in evidence, and the jury acquit, they must be required to find specially whether insane at the time of the commission of the offence, and whether he was acquitted on that account; and if they find in the affirmative, the court may order him to be kept in like manner till the Crown's pleasure be known (†).

[In the bloody reign, indeed, of Henry the eighth, a statute was made, which enacted that if a person, being compos mentis, should commit high treason, and after fall into madness, he might be tried in his absence, and should suffer death, as if he were of perfect memory (u). But this savage and inhuman law was repealed by the statute

(r) 1 Hale, P. C. 34.

(s) This Act applies to misde

meanor as well as felony.

(R. v.

Goode, 7 Ad. & El. 586; R. v. Little, Russ. & R. C. C. R. 430.) See also 14 & 15 Vict. c. 81, as to the removal to England and confine

ment there, of persons tried in India, and acquitted on the ground of insanity.

(t) There is now an asylum especially appropriated to criminal lunatics, see 23 & 24 Vict. c. 75.

(u) 33 Hen. 8, c. 20.