# Commentaries on the Laws of England/Of the Persons Capable of committing Crimes

Chapter the second.
Of the PERSONS CAPABLE of 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 enquire what persons are, or are not, capable of committing crimes; or, which is all one, who are exempted from the censures of the law upon the commission of those acts, which in other persons would be severely punished. In the process of which enquiry, 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 of 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 it's 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 muft be both a will and an act. For though, in foro conscientiae, a fixed design or will to do an unlawful act is almost as heinous as the commission of it, yet, as no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwise than as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know. For which reason 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 vitious will without a vitious act is no civil crime, so, on the other hand, an unwarrantable act without a vitious will is no crime at all. So that to constitute a crime against human laws, there must be, first, a vitious will ; and, secondly, an unlawful act consequent upon such vitious will.
Now there are three cafes, in which the will does not join with the act: 1. 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 but 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. 2. 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 cafe of all offences committed by chance or ignorance. Here the will fits neuter; and neither concurs with the act, nor disagrees to it. 3. 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 loaths and disagrees to, what the man is obliged to perform. It will be the businefs of the present chapter briefly to confider all the several species of defect in will, as they fall under some one or other of these general heads : as infancy, idiocy, lunacy, and intoxication, which fall under the first class ; misfortune, and ​ignorance, which may be referred to the second ; and compulsion or neceslity, which may properly rank in the third.
I. First, we will consider the cafe of infancy, or nonage ; which is a defect of the understanding. Infants, under the age of discretion, ought not to be punished by any criminal prosecution whatever . What the age of discretion is, in various nations is matter of some variety. 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 an half was aetas infantiae proxima ; from ten and an half to fourteen was aetas pubertati proxima. During the first stage of infancy, and the next half stage of childhood, infantiae proxima, they were not punishable for any crime. During the other half stage of childhood, approaching to puberty, from ten and an 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 utmosl rigor of the law. During the lasl stage (at the age of puberty, and afterwards) minors were liable to be punished, as well capitally, as otherwise.
The law of England does in some cafes privilege an infant, under the age of twenty one, as to common misdemefnors ; so as to escape fine, imprisonment, and the like : and particularly in cafes of omislion, as not repairing a bridge, or a highway, and other similar offences : 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) for these an infant, above the age of fourteen, is equally liable to suffer, as a persbn of the full age of twenty one.
With regard to capital 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: and from thence till the offender was fourteen, it was aetas pubertati proxma, 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 he 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 ever 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 of fourteen; and in these cafes our maxim is, that "malitia supplet aetatem."Under seven years of age indeed an infant cannot be guilty of felony; for then a felonious discretion is almost an impossibility in nature : but at eight years old he may 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 was doli capax, and could discern between good and evil, he may be convicted and suffer death. Thus a girl of thirteen has been burnt for killing her mistress: and one boy of ten, and another of nine years old, who had killed their companions, have been sentenced to death, and he of ten years actually hanged; because it appeared upon their trials, that the one hid himself, and the other hid the body he had killed; which hiding manifested a consciousness of guilt, and a discretion to discern be ​tween good and evil . And there was an instance in the last 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. Thus also, in very modern 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'. But, in all such cafes, the evidence of that malice, which is to supply age, ought to be strong and clear beyond all doubt and contradiction.
II. The second cafe of a deficiency in will, which excuses from the guilt of crimes, arises also from a defective or vitiated understanding, viz. in an idiot or a lunatic. For the rule of law as to the latter, which may easily be adapted also to the former, is, that "furiosus furore solum punitur." 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. Also, 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 ; 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 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 found memory, he might have alleged some ​thing in stay of judgment or execution . Indeed, in the bloody reign of Henry the eighth, a slatute was made", which enacted, that if a persobn, 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. But this savage and inhuman law was repealed by the statute 1 & 2 Ph. & M. c. 10. For, as is observed by sir Edward Coke, "the execution of an offender is for example, ut pocna ad paucos, metus ad omnes perveniat: but so it is not when a madman is executed; but should be a miserable spectacle, both against law, and of extreme inhumanity and cruelty, and can be no example to others." But if there be any doubt, whether the party be compos or not, this mall be tried by a jury. And if he be so found, a total idiocy, or absolute insanity, excuses from the guilt, and of course from the punishment, of any criminal action committed under such deprivationof the senses: but, if a lunatic hath lucid intervals of understanding, he shall answer for what he does in those intervals, as if he had no deficiency. Yet, in the cafe of absolute madmen, as they are not answerable for their actions, they should not be permitted the liberty of adding unless under proper control; and, in particular, they ought not to be suffered to go loose, to the terror of the king's subjects. It was the doctrine of our antient law, that persons deprived of their reason might be confined till they recovered their senses , without waiting for the forms of a commission or other special authority from the crown: and now, by the vagrant acts, a method is chalked out for imprisoning, chaining, and sending them to their proper homes.
III. Thirdly; as to artificial, voluntarily contracted madness, by drunkenness or intoxication, which, depriving men of their reason, puts them in a temporary phrenzy; our law looks upon this as an aggravation of the offence, rather than as an ​excuse for any criminal misbehaviour. A drunkard, says sir Edward Coke, who is voluntarius daemon, hath no privilege thereby; but what hurt or ill soever he doth, his drunkenness doth aggravate it: nam, omne crimen ebrietas, et incendit, et detegit. It hath been observed, that the real use of strong liquors, and the abuse of them by drinking to excess, depend much upon the temperature of the climate in which we live. The same indulgence, which may be necessary to make the blood move in Norway, would make an Italian mad. A German therefore, says the president Montesquieu, drinks through custom, founded upon constitutional necessity; a Spaniard drinks through choice, or out of the mere wantonness of luxury: and drunkenness, he adds, 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 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, should receive a double punishment;" one for the crime itself, and the other for the ebriety which prompted him to commit it. The Roman law indeed made great allowances for this vice: "per vmum delapjis capitalis poena remittitur". But the law of England, considering how easy it is to counterfeit this excuse, and how weak an excuse it is, (though real) will not suffer any man thus to privilege one crime by another.
IV. A fourth deficiency of will, is where a man commits an unlawful act by misfortune or chance, and not by design. Here the will observes 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 shall find more occasion to speak hereafter; at present only observing, that if any accidental mischief happens to follow from the per ​formance of a lawful act, the party stands excused from all guilt: but if a man be doing any thing unlawful, and a 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; for, being guilty of one offence, in doing antecedently what is in itself unlawful, he is criminally guilty of whatever consequence may follow the fist misbehaviour.
V. Fifthly, ignorance or mistake is another defect of will; 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 musb be an ignorance or mistake of fact, and not an error in point of law. As if a man, intending to kill a thief or housebreaker in his own house, by mistake kills one of his own family, this is no criminal action: but if a man thinks he has a right to kill a person excommunicated or outlawed, wherever he meets him, and does so; this is wilful murder. For a mistake in point of law, which every person of discretion not only may, but is bound and presumed to know, is in criminal cases no sort of defence. Ignorantia juris, quod quifque tenetur fcire, neminem excufat, is as well the maxim of our own law as it was of the Roman.
VI. A sixth species of defect of will is that arising from compulsion and inevitable necessity, These are a constraint upon the will, whereby a man is urged to do that which his judgment disapproves; and which, it is to be presumed, his will (if left to itself) would reject. As punishments are therefore only inflicted for the abuse of that free-will, which God has given to man, it is highly just and equitable that a man mould be excused for those acts, which are done through unavoidable force and compulsion. ​1. OF this nature, in the firft place, is the obligation of civil subjection, whereby the inferior is constrained by the superior to act contrary to what his own reason and inclination would sugge{ls}}t: as when a legislator establishes iniquity by a law, and commands the subject to do an act contrary to religion or sound morality. How far this excuse 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 my business to decide ; though the question I believe, among the casuists, will hardly bear a doubt. But, however that may be, obedience to the laws in being is undoubtedly a sufficient extenuation of civil guilt before the municipal tribunal. The sheriff, who burnt Lativner and Ridley, in the bigotted days of queen Mary, was not liable to punishment from Elizabeth, for executing so horrid an office; being justified by the commands of that magistracy, which endeavoured to restore superstition under the holy auspices of it's merciless sister, persecution.
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: for neither a son or a servant are excused for the commission of any crime, whether capital or otherwise, by the command or coercion of the parent or master; though in some cafes the command or authority of the husband, either express or implied, will privilege the wife from punishment, even for capital offences. And therefore if a woman commit theft, burglary, or other civil offences against, the laws of society, by the coercion of her husband; or merely by his command, which the law construes a coercion; or even in his company, his example being equivalent to a command ; she is not guilty of any crime : being considered as acting by compulsion and not of her own will. Which doctrine is at least a thousand years old in this kingdom, being to be found among the laws of ​king Ina the Weft Saxon d . And it appears that, among the nor- thern 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 alter urn liber t as, alter urn necejjitas mpelkrei"" But (befldes that in our law, which is a ftranger to ilavery, no impunity is given to fervants, who are as much free agents as their matters) 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 unreafonable to fcreen an offender from the punishment due to natural crimes, by the refinements and fubordinations of civil fociety. In treafon alfo, (the higheft crime which a member of fociety can, as fuch, be guilty of) no plea of coverture mall excufe the wife ; no pre- fumption of the hufband's coercion mail extenuate her guilt f : as well becaufe of the odioufnefs and dangerous confequence of the crime itfelf, as becaufe the hufband, having broken through the moft facred tie of focial community by rebellion againfl the ftate, has no right to that obedience from a wife, which he himfelf as a fubject has forgotten to pay. In inferior mifde- mefnors alfo, we may remark another exception ; that a wife may be indicted and fet in the pillory with her hufband, for keeping a brothel : for this is an offence touching the domeftic oeconomy or government of the houfe, in which the wife has a principal mare -, and is alfo fuch an offence as the law pre- fumes to be generally conducted by the intrigues of the female fex 6 . And in all cafes, where the wife offends alone, without the company or command of her hufband, Ihe is refponfible for her offence, as much as any feme-fole. ff. 57. ' i Hal. P. 0.47. Stiernhoob dt jure Suea/i. 1. z. ?. 4, s j Hawk. P. C. 2, 3. 2. AN​2. ANOTHER fpecies of compuliicm or neceflity is what our law calls durefs per mi?ias h ; or threats and menaces, which in- duce 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 compels a man to do an unwarrantable action, ought to be juft and well grounded ; fuch, " qul cadere pojjit in virum conftantem, " non timidiun et meticiilofum" as Bracton exprefTes it', in the words of the civil law k . Therefore, in time of war or rebel- lion, a man may be justified in doing many treafonable acts by compulfion of the enemy or rebels, which would admit of no excufe in the time of peace 1 . 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 puniihment. And therefore though a man be violently aflaulted, and hath no other poflible means of efcaping death, but by killing an innocent perfon ; this fear and force mail not acquit him of murder; for he ought rather to die himfelf, than efcape by the murder of an innocent 1 ". But in fuch a cafe he is per- mitted to kill the affailant ; for there the law of nature, and felf-defence it's primary canon, have made him his own pro- tector. 3. THERE is a third fpecies of neceffity, which may be diftinguiihed 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 before him, and, being under a neceffity of chooiing one, he chufes the leaft " Sec Vol. I. pag. 131. ' i Hal. P. C. 50. ' /. 2./. 1 6. ni ind. 51.
pernicious ​Ch. 2. WRONGS. 31 pernicious of the two. Here the will cannot be faid freely to exert itfelf, being rather paffi ve, than active ; or, if active, it is rather in rejecting the greater evil than in chooling 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 reliftance is made to his authority : it is here juftifiable and even necefTary to beat, to wound, or per- haps to kill the offenders, 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 ma- lefactors, are of the utmoft confequence to the public ; and therefore excufe the felony, which the killing would other- wife amount to". 4. T H E R E is yet another cafe of neceffity, which has occa- fioned great fpeculation among the writers upon general law ; viz. whether a man in extreme want of food or clothing may juflify ftealing either, to relieve his prefent neceffities. And this both Grotius and Puffendorf p , 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 a kind of tacit conceffion of fociety is revived. 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 lead it is now antiquated, the law of England admitting no fuch excufe at prefent'. And this it's doctrine is agreeable not only to the fentiments of many of the wifefl antients, particularly Cicero 8 , who holds that " fuum cuique incommodum ferendum eft, potius " quam de alterius commodis detrahendum;" but alfo to the Jewiih law, as certified by king Solomon himfelf ( : " if a thief fleal to " fatisfy his foul when he is hungry, he fhall reftore fevenfold, i Hal. P. C. 53. ' I Hal. P. C. 54. de jure b. & p. 1. z. c. 2. * de if. I. 3 . c. 5. I" L. of Nat. and N. 1. 2. c. 6. ' Prov. vi. 30. S Briton, c. 10. Mirr. c. 4. . 16. " and ​" and lhall give all the fubftance of his houfe :" which was the ordinary punifhment for theft in that kingdom. And this is founded upon the higheft reaibn : 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 pofTibly be an adequate judge, but the party himfelf who pleads them. In this country eipecially, there would be a peculiar impro- priety in admitting ib dubious an excufe : for by our laws iuch fufticient provifion is made for the poor by the power of the civil magiftrate, that it is impoffible that the moil needy ftranger fliould 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 Puftendorf, 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 interwoven 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 the law, and to extend mercy in cafes of peculiar hardfhip. An advantage which is wanting in many- Hates, particularly thofe which are democratical : and thefe have in it's ftead introduced and adopted, in the body of the law itfelf, a multitude of circumftances tending to alleviate it's ri- gour. But the founders of our conftitution thought it better to veft in the crown the power of pardoning particular objedls of compaffion, than to countenance and eftablifh theft by one ge- jjeral 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 > ​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*; which will not fuppofe him capable of committing a folly, much lefs a 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 adt 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 inconliftent with his flation and dignity ; and therefore has made no provifion to remedy fuch a grievance. But of this fufficient was faid in a former volume", to which I muft refer the reader. i Hal. P. C. 44. * Book I. ch. 7. pag. 244. VOL. IV. E
* ↑ 1 Hawk. P. C. 2
* ↑ Inst. 3. 20. 10.
* ↑ 1 Hal. P. C. 20, 21, 22.
* ↑ LL. Athelstan. Wilk. 65.
* ↑ Mirr. c. 4. §. 16. 1 Hal.P.C. 27.
* ↑ Dalt. Just. c. 147.
* ↑ 1 Hal. P C. 26, 27.
* ↑ Emlyn on 1 Hal. P. C. 25.
* ↑ Foster. 72.
* ↑ 3 Inst.6.
* ↑ 1 Hal. P. C. 34.
* ↑ 33 Hen. VIII. c. 20.
* ↑ 3 Inst. 6.
* ↑ 1 Hal. P.C. 31.
* ↑ Bro. Abr. tit. corone. 101.
* ↑ 17 Geo. II. c.5.
* ↑ 1 Inst. 247.
* ↑ Sp. L. b.14. c.10.
* ↑ Puff. L. of N. b.8. c.3.
* ↑ Ff. 49. 16. 6.
* ↑ Plowd. 19.
* ↑ 1 Hal. P.C. 39.
* ↑ Cro. Car. 538.
* ↑ Plowd. 343.
* ↑ Ff. 22. 6. 9.
* ↑ 1 Hawk. P.C. 3.
* ↑ 1 Hal. P. C. 45.