by their own consent, it being a part of the original contract into which they entered when first they engaged in society. The end or final cause of human punishments is not by The object of way of atonement or expiation for the crime committed, for punishment. that must be left to the just determination of the Supreme Being, but as a precaution against future offences of the same kind. This is effected: by the amendment of the offender by imprisonment or otherwise or by deterring others by the dread of his example from offending in the like way "ut pœna Procluentio, 16. (as Tully expresses it) ad paucos, metus ad omnes, perveniat” (b). The measure or quantity of punishment can never be deter- The measure mined by any invariable rule; but it must be left to the arbi- of punishment. tration of the legislature to inflict such penalties as are warranted by the laws of nature and society, and such as appear to be best calculated to answer the end of precaution against future offences. CHAPTER II. OF THE PERSONS CAPABLE OF COMMITTING CRIMES. crimes. ALL the several pleas and excuses, which protect the com- What persons mitter of a forbidden act from the punishment which is are or are not capable of otherwise annexed thereto, may be reduced to this single committing consideration, the want or defect of will. To make a complete crime cognizable by human laws there must be both a will and an act. 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 crime, so an unwarrantable act without a vicious will is no crime. There are three cases in which the will does not join with the act: where there is a defect of understanding, for he that has no understanding can have no will to guide his conduct. 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 ; Three species of defect of will. Defect of un derstanding. Neutrality of will from mis fortune or ignorance. (b) And Cicero (Cic. in Cat. Or. 4), Itaque, ut aliqua in vita formido improbis esset posita, apud inferos ejusmodi quædam illi antiqui supplicia impiis constituta esse voluerunt: quod videlicit intelligebant, his remotis, non esse mortem ipsam pertimescendam. Constraint of will, as compulsion or necessity. Infancy or non-age. 1 Hawk. P. C. 2. 1 Hal. P. C. 20, 21, 22. Infancy. With reference to capital crimes. Mir. c. 4, s. 16. 1 Hal. P. C. 27. Dalt. Jus. c. 147. Idiocy or lunacy an excuse for crime. and neither concurs with the act, nor disagrees to it. And when the action is constrained by some outward force and violence, the will counteracts the deed, and disagrees to what the man is obliged to perform. It will be the business of this chapter to consider the several species of defect in will, as they come 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 necessity which may rank in the third. Infants under the age of discretion ought not to be punished by any criminal prosecution. The law of England does in some cases privilege an infant under twenty one as to common misdemeanors; so as to escape fine, imprisonment and the like; and in cases of omission, as not repairing a bridge, or a highway: for not having the command of his fortune till twentyone, 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, an infant above fourteen is as liable to suffer as a person of twenty-one. With regard to capital crimes, the law is more minute and circumspect; distinguishing with greater nicety, the several degrees of age and discretion. The capacity of doing ill, or contracting guilt, is not so much measured by years and days, as by the delinquent's understanding and judgment. For one lad of eleven 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 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. Under fourteen, if it appears to the court and jury that an infant is doli capax, and can discern between good and evil, he may be convicted and suffer death. But in all such cases the evidence of malice which is to supply age, ought to be strong and clear beyond all doubt and contradiction. The second case of a deficiancy in will, which excuses from the guilt of crimes, arises also from a defective or vitiated understanding, viz., in an idiot or lunatic. For the rule of law as to the latter, which may be adopted as to the former, is that furiosus furore solum punitur. (a) In criminal cases, idiots, and lunatics are not chargeable for their own acts, if committed when under these incapacities. They connot be arraigned or (a) “ A madman is punished by his madness alone.” tried for offences committed in sound memory. And if, after trial and conviction, a man loses his senses, judgment and execution shall be stayed. But if there be any doubt as to the sanity it shall be tried by a jury. Yet as to artificial madness voluntarily contracted 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 behaviour. Another deficiency of will is where a man commits an unlawful act by misfortune or chance, and not by design. Here the will observes a neutrality, and does not co-operate with the deed; which therefore wants one main ingredient of a crime. If any accidental mischief follows the performance of a lawful act, the party is excused from guilt; but if it follows the doing any thing unlawful it is otherwise. For Deficiency of through miswill arising fortune or chance. 1 Hal. P. C.39. Ignorance of fact an excuse for crime but not ignorance of law. Ignorance, or mistake, is another defect of will; when a man intending to do a lawful act, does that which is unlawful. 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 thief 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 outlawed, 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 quisque tenetur scire, neminem excusat, is as well the maxim of Cro. Car. 538. our own law as it was of the Roman. Ff. 22. 6. 9. Compulsion or necessity an excuse for crime. the wife. Another species of defect of will is that arising from compulsion and inevitable necessity. Of this nature is the obligation of civil subjection; as when a legislator establishes a law, commanding a subject to do an act contrary to religion and sound morality. The principal case where in private relations As by the constraint of a superior is allowed as an excuse for criminal husband over misconduct, is with regard to the matrimonial subjection of the wife to her husband. Neither a son nor a servant are excused from the commission of any crime by the command or coercion of the parent or master; but if a woman commit theft, burglary, or other civil offences against the laws of society, by the coercion of her husband; or even in his company, which the law construes a coercion; she is not guilty of any crime, being considered as acting by compulsion and not of her own will. 1 Hal. P. C. 45. Compulsion by duress per minas. 1 Hal. P. C. 50. But it is not so in crimes that are mala in se, as murder or the like, nor in treason. And a wife may be indicted and set in the pillory with her husband for keeping a brothel. And in all cases where the wife offends alone without the company or coercion of her husband, she is responsible for her offence as much as a feme sole (b), Duress per minas, or threats and menaces which induce a fear of death, or bodily harm, take away for that reason the guilt of many crimes: as if a man be violently assaulted and menaced with murder, he is permitted to kill the assailant; but if he has no other means of escaping death but by killing an innocent person, this force and fear shall not acquit him of murder. And where a man by the commandment of the law is bound to arrest another for any capital offence, or to disperse a riot, and resistance is made to his authority; it is here justifiable and even necessary to beat, to wound, or perhaps to kill the offenders, rather than permit the murderer to escape, or the riot to continue. CHAPTER III. Principals. 1 Hal. P. C. 615. Foster, 350. Kel. 52. Foster, 349. OF PRINCIPALS AND ACCESSARIES. A MAN may be principal in an offence in two degrees. A principal in the first degree, is he that is the actor or absolute perpetrator of the crime; and in the second degree, he who is present, aiding and abetting the fact to be done; which presence need not always be an actual standing by, within sight or hearing of the fact; but there may be also a constructive presence, as when one commits a robbery or murder, and another keeps watch or guard at some convenient distance. And this rule has also exceptions, for in case of murder by poisoning, a man may be a principal felon by preparing and laying the poison, or persuading another to drink it, who is ignorant of its poisonous quality, or giving it to him for that purpose, and yet not administer it himself, nor be present (3) The law seems to protect the wife in all felonies committed by her in company with her husband, except murder and manslaughter.-1 Hal. P. C.; Mr. Christian's note to Bl. Com. v. 4, p. 29. And the 3 Inst. 138. when the very deed of poisoning is committed. An accessary is he who is not the chief actor in the offence, Accessaries. nor is present at its performance, but is someway concerned therein either before or after the fact committed. In high treason there can be no accessaries, but all are principals; the 136. 615. same acts that make a man accessary in felony, making him a principal in high treason, on account of the heinousness of the 3 Inst. 138. crime. But in petit treason (a), murder, and felonies there 1 Hal. P. C. may be accessaries, except in unpremeditated offences, as manslaughter and the like, which cannot have any accessaries before the fact. In petit larceny (b), and all crimes under the 1 Hal, P. C. degree of felony, there are no accessaries either before or after the fact; but all concerned therein are principals, Ibid. 613. because the law quæ de minimis non curat, does not descend to distinguish the different shades of guilt in petty misdemeanors. It is a maxim that accessorius sequitur naturam sui principalis, and therefore an accessary cannot be guilty of a higher crime than his principal, being punished as partaker of 3 Inst. 139. his guilt. (c) Sir Matthew Hale defines an accessary before the fact to be one who, being absent at the time of the crime committed, does yet procure, counsel, or command another to commit a An accessary before the fact. 1 Hal. P. C. 615. 616. (a) By 9 Geo. 4, c. 31, s. 2, every offence which before the act would have amounted to petit treason, shall be deemed to be murder only, and no greater offence; and all persons guilty in respect thereof, whether as principals or as accessaries, shall be dealt with, indicted, tried, and punished as principals and accessaries in murder. (b) By 7 & 8 Geo. 4, c. 29, s. 2, the distinction between grand and pettty larceny was abolished. Every petty larceny is now deemed to be of the same nature and subject to the same incidents as grand larceny was before the act, and the law of grand larceny is now applicable to all cases of petty larceny. (c) By 7 Wm. 4, & 1 Vict. c. 86, s. 6, and 7 Wm. 4, and 1 Vict. c. 87, s. 9, in the case of every felony punishable under these acts, every principal in the second degree, and every accessary before the fact, shall be punishable with death or otherwise, in the same manner as the principal in the first degree is by the same acts punishable; and every accessary after the fact to any felony punishable under the acts, (except only a receiver of stolen property) shall on conviction, be liable to be imprisoned for any term not exceeding two years. And see the acts of 7 Geo. 4, c. 64, ss. 9, 10, 11; 7 & 8 Geo. 4, c. 29, s. 61; 7 & 8 Geo. 4, c. 30, s. 26; 9 Geo. 4, c. 31, s. 31; 11 Geo. 4, and 4 Wm. 4, e. 66, s. 25; and 2 Wm. 4, c. 34, s. 18. |