C R I M E S. 



341 



Cri 



From the age of fourteen, minofs were liable to be 

 punished oven capitally. By the new criminal code of 

 France, if the accused is under the age of sixteen, the 

 judge is to call upon the jury to determine, whether it 

 appears, from the circumstances of the case, that the 

 prisoner acted with discernment. In the laws of Eng- 

 land and Scotland, the precise age at which one be- 

 comes capable of malicious intentions is not fixed by 

 any statute, but is left to the determination of the 

 court and the jury, in each particular case. Under 

 seven years of age, indeed, an infant cannot be guilty 

 of felony ; but at eight he .may. A child under four- 

 teen is presumed to be doli incapax ; yet if it appear 

 to the court that he was doli capax, and could discern 

 between good and evil, he may be convicted, and suf- 

 fer death. Where the guilt of the crime committed by 

 the pupil arises chiefly from statute, so that its crimi- 

 nal nature is not so obvious, he ought not to be pu- 

 nished nisi matitia suppleat cetatem, unless he appear 

 to have a degree of sagacity and judgment above his 

 years ; but where the deformity of the criminal act is 

 discoverable by natural light, the pupil, if he be prox- 

 imus pubertati, may be more easily presumed capable 

 of committing it. In the annals of the criminal law of 

 England, there are instances of minors being tried, 

 condemned, and capitally punished, at the age of eight, 

 nine, and ten years. 



With regard to idiots, or lunatics, they are not charge- 

 able for their own criminal acts, if committed when 

 under the influence of these incapacities. But smaller 

 degrees of fatuity or furiosity, which only darken rea- 

 son without totally obscuring it, do not afford a total 

 defence, but may operate in mitigation of punishment. 

 If there be any doubt whether the party be compos or 

 not, this fact shall be tried by a jury ; and if he be so 

 found, a total idiocy, or absolute insanity, excuses 

 from the guilt ; but if the insanity recur at certain pe* 

 riods, and the crime be committed during a lucid in- 

 terval of understanding, the lunatic shall be answer- 

 able, as if he had no such deficiency. According to 

 the English law, if a man in his sound memory com- 

 mits- a capital offence, and becomes insane during any 

 stage of the trial, the proceedings shall be stayed, be- 

 cause the prisoner is then incapable of conducting his 

 defence. On the subject of insanity, as a matter of de-r 

 fence against a criminal charge, and especially of 

 crimes committed under the influence of a particular 

 delusion, the reader will find a most profound and in- 

 genious argument in Lord Erskine's speech for Had- 

 field. 



The two great objects of all criminal legislation, are, 

 in the first place, the punishment, and, in the second 

 place, the prevention of crimes. The enormity of 

 crimes being estimated according to the injury done to 

 society, an ingenious writer on criminal law has sug- 

 gested the possibility of forming a scale of crimes, with 

 a corresponding scale of proportionate punishments; 

 beginning with those which immediately tend to the 

 dissolution of society, and ending with such as do the 

 smallest possible injury to individuals. This idea is, 

 perhaps, rather too refined ; yet a wise legislator will 

 endeavour to effectuate as near an approximation as 

 possible to the general theory, by marking the princi- 

 pal divisions, and adhering to the order, at least so far 

 as not to assign the highest penalties to offences of an 

 inferior class. Upon the due distribution of adequate 

 punishments, indeed, must the perfection of every cri- 

 minal code depend. The right of inflicting capital 

 punishments (although drawn into doubt by some wri- 



ters of ability,) appears to flow directly from the prin- 

 ciples of natural justice, and from the right of every 

 community to protect the lives and properties of its 

 citizens from ruffian violence. Capital punishments, 

 however, ought not to be unnecessarily multiplied, by 

 extending them to these offences, which do not seem 

 to call for the idlimum supplicium. To shed the blood 

 of our fellow creature, a very learned author observes, 

 is a matter that requires the greatest deliberation, and 

 the fullest conviction of our own authority ; for life is 

 the immediate gift of God to man, which neither he 

 can resign, nor can it be taken from him, unless by the 

 command or permission of him who gave it, either ex- 

 pressly revealed, or collected from the laws of nature 

 or society, by clear and indisputable demonstration. 

 It ought to be remembered, too, that of all punish- 

 ments inflicted by human laws, that of death is the one 

 by which the ends of justice are most imperfectly at- 

 tained. 



The principles which ought to regulate the enactment 

 of penal statutes do not appear to have been sufficiently 

 attended to in the criminal jurisprudence of England ; 

 and the frequency of capital punishment inflicted upon 

 crimes very different in their nature and degrees of 

 atrocity, has been mentioned as a subject of serious re- 

 gret by many "judicious writers. It is scarcely credible 

 that, in the eighteenth century, it should have been 

 made a capital felony to break down the mound of a 

 fish-pond, whereby any fish shall escape ; or to cut 

 down a cherry-tree in an orchard : (Statute 9 Geo. I. 

 c. 22. and 31 Geo. II. c. 42.) The sanguinary act of 

 Queen Elizabeth, which made it a capital offence for 

 any person above the age of 14 to associate for a month 

 with gypsies, was executed in the reign of Charles I. 

 and Lord Hale mentions 13 jiersons having, in his 

 time, suffered death upon it at one assize. The writ 

 de hceretico comburendo, one of the most arbitrary and 

 oppressive laws that ever disgraced the criminal code 

 of any country, was put in execution upon two Anabap- 

 tists in the seventeenth of Elizabeth, and upon the 

 Arians in the ninth of James I. ; nor was it totally 

 abolished until the 29th Car. II. c. 9- Sir John For- 

 tescue tells us, that in his day (in the reign of Henry 

 VI.) more persons were executed in England for rob- 

 beries in one year, than in France in seven ; and Hol- 

 linshed states, that no less than 72,000 persons died by 

 the hands of the executioner, during the reign of Hen- 

 ry VIII. being at the rate of 2000 every year. It is. 

 surely most just and expedient, and necessary to the 

 welfare and happiness of society, that some regard 

 should be had to the nature and magnitude of the 

 crime, in fixing the degree of punishment to be at- 

 tached to its commission. Yet, by the criminal laws of 

 England, to steal a handkerchief or other trifle, above 

 the value of twelvepence, from one's person privately ; 

 to steal privately in a shop, goods to the value of five 

 shillings, or in a dwelling-house, or on board a vessel 

 in a navigable river, property of the value of forty 

 shillings, are capital felonies, and consequently punish- 

 able in the same degree as murder, or any of the more 

 atrocious crimes. It is a melancholy truth, Sir William 

 Blackstone observes in his time, that among the variety 

 of actions which men are daily liable to commit, no 

 less than 160 have been declared, by act of parliament, 

 to be felonies without benefit of clergy ; or, in other 

 words, to be worthy of instant death. This is surely 

 extending the right of inflicting capital punishments 

 much farther than is warranted by any principle of jus- 

 tice or expediency. The author last quoted maintains, 



Crimes. 



