And altho many of the schoolmen and cannonifts are of opinion that death ought not to be inflicted for theft (g), yet the necef[13] fity of the peace and well ordering of the kingdom hath in all ages and almost all countries prevailed against that opinion, and annexed death as the punishment of theft, when the offense hath grown very common and accompanied with enormous circumftances, tho in fome places more is left herein to the Arbitrium Judicis to give the fame or a more gentle fentence according to the quality of the offenfe and offender, than is used in England, where the laws are more determinate, and leave as little as may be to the Arbitrium Judicis. See the cafe difputed learnedly by Covarruvias Tomo 2. Lib. II. cap. 9. §. 7. This I have therefore mentioned, that it may appear, that capital punishments are variously appointed for several offenfes in all kingdoms and states: and there is a neceffity it should be fo; for regularly the true, or at leaft, the principal end of punishments is to deter men from the breach of laws, fo that they may not offend, and fo not fuffer at all; and the inflicting of punishments in most cafes is more for example and to prevent evils, than to punish. When offenfes grow enormous, frequent and dangerous to a kingdom or state, deftructive or highly pernicious to civil focieties, and to the great infecurity and danger of the kingdom and its inhabitants, fevere punishments, even death itself, is neceffary to be annexed to laws in many cafes by the prudence of law-givers, tho poffibly beyond the fingle demerit of the offence itself fimply confider'd. Penalties therefore regularly feem to be juris pofitivi, & non naturalis, as to their degrees and applications, and therefore in different ages and states have been fet higher or lower according to the exigence of the state and wisdom of the law-giver. Only in the cafe of murder there seems to be a juftice of retaliation, if not ex lege naturali, yet at least by a general divine law given to all mankind, Gen. ix. 6. And altho I do not deny but the fupreme king of the world may remit the severity of the punishment, as he did to Cain, yea and his substitutes (g) Scotus Sentent. 4. diftin&t 154 quaeft. 3. Syluefter in Verbo furtum 3. Not only the fchoolmen and cannonifts were of this opinion, but by what has been above said, it appears likewife to have been the fenfe both of the Jewish and Roman laws, and the, as our author fays, the principal end of punishment is to deter men from offending, yet it will not follow from thence, that it is lawful to deter them at [14] any rate, and by any means; for even obe. dience to juft laws may be inforced by unlawful methods. Cic. Epift. 15. ad Bru tum. Eft pane modus, ficut rerum reliqua. rum; and again, Lib. I de officiis. Eft enim ulcifcendi & puniendi modus. Befides, experience might teach us, that capital punifhments do not always best answer that end. See Grot. de jur. bel. &c. Lib. II. sap. 20. §. 12. 2, 3. sovereign fovereign princes may alfo defer or remit that punishment, or make a commutation of it upon great and weighty circumftances, yet fuch inftances ought to be very rare, and upon great occafions. In other cafes the lex talionis in point of punishments seems to be purely juris pofitivi; and altho among the Jewish laws we find it inftituted Exod. xxi. 24, 25 Eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe; yet in as much as the party injur'd is living and capable of another fatisfaction of his damage, (which he is not in cafe of murder) I have heard men greatly read in the Jewish lawyers and laws affirm, that these taliones among the Jews were converted into pecuniary rates and estimates to the party injured, so that in penal proceedings the rate or estimate of the loss of an eye, tooth, hand or foot was allowed to the perfon injur'd, viz. the price of an eye for an eye, and the price of an hand for an hand, &c. (h). Blackf. Com. ch. i. Of the nature of crimes and punishments.] CHAP II. Concerning the feveral incapacities of perfons, and their exemptions from penalties by reafon thereof. MAN AN is naturally endowed with these two great faculties, understanding and liberty of will, and therefore is a fubject properly capable of a law properly fo called, and confequently obnoxious to guilt and punishment for the violation of that law, which in refpect of thefe two great faculties he hath a capacity to obey: The consent of the will is that, which renders human actions either commend[15] able or culpable; as where there is no law, there is no tranf greffion, fo regularly where there is no will to commit an offenfe, there can be no tranfgreffion, or juft reafon to incur the penalty or fanction of that law inftituted for the punishment of crimes or offenfes. And because the liberty or choice of the will prefuppofeth an act of the understanding to know the thing or action chofen by the will, it follows that, where there is a total defect of the understanding, there is no free act of the will in the choice of things or actions. But general notions or rules are too extravagant and undeterminate, and cannot cannot be fafely in their latitude applied to all civil actions; and therefore it hath been always the wisdom of states and law-givers to prefcribe limits and bounds to thefe general notions, and to define what perfons and actions are exempt from the feverity of the general punishments of penal laws in refpect of their incapacity or defect of will. Those incapacities or defects, that the laws, efpecially the laws of England, take notice of to this purpose, are of three kinds: I. Natural. Il. Accidental. III. Civil incapacities or defects. The natural is that of Infancy. The accidental defects are, 1. Dementia. 2. Cafualty, or Chance. 3. Ignorance. The civil defects are. 1. Civil Subjection. 2. Compulfion. 3. Neceffity. 4. Fear. [16] Ordinarily none of thefe do excufe those persons, that are under them, from civil actions to have a pecuniary recompenfe for injuries done, as trespasses, batteries, woundings; because fuch a recompenfe is not by way of penalty, but a fatisfaction for damage done to the party: but in cafes of crimes and mifdemeanors, where the proceed. ings against them is ad pœnam, the law in fome cafes, and under certain temperaments takes notice of thefe defects, and in refpect of them relaxeth or abateth the severity of their punishments. [See 4. Blackf. Com, ch. ii.] CHAP. CHAP. III. Touching the defect of infancy and nonage. HE laws of England have no dependence upon the civil law, nor Tare governed by it, but are binding by their own authority; yet must it be confeffed, the civil laws are very wife and well compofed laws, and fuch as have been found out and fettled by wife princes and law-givers, and obtain much in many other kingdoms fo far as they are not altered, abrogated, or corrected by the special laws or customs of thofe kingdoms, and therefore may be of great ufe to be known, tho they are not to be made the rules of our English laws; and therefore tho I fhall in fome places of this book, and here particularly mention them, yet neither I, nor any elfe may lay any weigh or stress upon them, either for discovery or expofition of the laws of England, farther than by the customs of England or Acts of Parliament they are here admitted. As to this business touching infancy, and how far they are capable of the guilt or punishment for crimes, I will confider, 1. What the civil laws tell us concerning the fame. 2. What the common laws of England have ordained touching it, and wherein thefe agree, and wherein they differ touching this matter. [17] The Civil law distinguishes the ages into feveral periods as to feveral purposes. Firft, The complete full age as to matters of contract is according to their law twenty-five years (a), but according to the law of England twenty-one years (b). Secondly, But yet before that age, viz. at feventeen years, a man is faid to be of full age, to be a procurator (c), or an executor (d); and with that also our law agrees. 5 Co. Rep. Pigot's cafe (e). Thirdly. As to matrimonial contracts, the full age of consent in males is fourteen years, and of females twelve (f); till that age they are faid to be impuberes (g), and are not bound by matrimonial contracts; and with this alfo our law agrees (h). Fourthly. As to matter of crimes and criminal punishments, efpecially that of death, they diftinguifh the ages into these four ranks. 1. Etas pubertatis plena. 2. Etas pubertatis. 3. Ætas pubertati proxima. 4. Infantia. 1. Pubertas plena is eighteen years (i). [18] 2 Pubertas generally, in relation to crimes and punishments, is the age of fourteen years and not before(k); and it seems as to this purpose there is no difference between the male and female fex; at this age they are fuppofed to be doli capaces, and therefore for crimes altho' capital, committed after this age they fhall fuffer as perfons of full age (1); only by the conftitutions of fome kingdoms, in favour of their age, the ordinary punishments were not inflicted upon fuch young offenders; as in Spain, not unless he were of the age of feventeen years. Vide Covar. de Matrimonio, cap. 5. §. 8. (m). In Relectione ad Clement. cap. Si Furiofus (n). By the antient law among the Jews, he that was but a day above thirteen years, was, as to criminals adjudged in virili ftatu, but not if under that age (†). 3. Etas pubertati proxima, herein there is great difference among the Roman lawyers; and tho they make a disparity herein between males and females, yet I think as to point of crimes the measure is the fame for both: Some affign this Etas pubertati proxima to ten (g) Inftitut. Lib. I. tit. 22. Quibus modis tutela finitur. pr. Dig. Lib. XXVIII. tit. 6. de vulg. & pupil. fubftitut. 1. 2. Macrob. Saturn. Lib. VII. cap. 7. (b) Co. Lit. §. 104. At the fame age they were permitted by the civil law to make a Teftament. Digeft. Lib. XXVIII. tit. 1. Qui teftamenta facere poffunt, 1. 5. Inftitut. Lib. II, tit. 12. Quibus non eft permiffum facere teftamentum,. 1. Cod. Lib. VI. tit. 22. Qui teflamenta facere poffint, vel. nol, 1.4. The common law feems not to have determined precifely at what age one may make a testament of a perfonal eftate, it is generally allowed that it may be made at the age of eighteen. Office of Executors, p. 305. Co. Lit. 89. b. and fome fay under, for the common law will not prohibit the spiritual court in fuch cafes. Sir Thos. Jones, Rep. 210. 1 Vern. 255. 2 Vern.469. (i) Dig. Lib. I. tit. 7. de adoption. 1. 40. §. 1. Inflit. eod. tit. §. 4. Dig. Lib. XLII. tit. 1. de re judicat. 1. 57- Lib. XXXIV. tit. 1. De alimentis, 14. §. I. (k) Dig. Lib. XXIX. tit. 5. de Senatufconfulto Silaniano, &c. l. 1. §. 32. (1) Dig. Lib. IV. tit. 4. de minoribus, L 37. §. 1. Lib. XLVIII. tit. 5. ad leg. Jul. de adult. 1. 36. Cod. Lib. 2. tit. 35. Si adverfus delictum. l. 1. |