Blackstone’s Commentaries with Notes of Reference (1803)

St. George Tucker

VOLUME 5, CHAPTER 2
Of the Persons Capable of Committing 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 inquire 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 inquiry, 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 its 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 must 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 action, 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 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 cases, in which 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 in on 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 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 case of all offenses committed by chance or ignorance. Here the will sits 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 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, 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 properly rank in the third.

1. FIRST, we will consider the case 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.1 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.2 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 utmost rigor of the law. During the last 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 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, and other similar offenses:3 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 liable as others to commit) 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 capital crimes, the law is still more minute and circumspect; distinguishing with greater nicety the several degrees of age and discretion. By the ancient Saxon law, the age of twelve years was established for the age of possible discretion, when first the understanding might open:4 and from thence till the offender was fourteen, it was aetas 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 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 case our maxim is, that “malitia supplet aetatem.” Under seven years of age indeed an infant cannot be guilty of felony;5 for then a felonious discretion is almost an impossibility in nature: but at eight years old he may be guilty of felony.6 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 between
good and evil.7 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.8 Thus also, in very modern times, a boy of ten years old was convicted on own confession of murdering his bedfellow; there appearing in his whole behavior 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.9 But, in all such cases, the evidence of that malice, which is to supply age, ought to be strong and clear beyond all doubt or contradiction.

II. THE second case of a deficiency in will, which excuses from the guilt of crimes, arises also 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.10 Also, if a man in his sound memory commits a capital offense, 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 defense? 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 sound memory, he might have alleged something in stay of judgment or execution.11 Indeed, in the bloody reign of Henry the eighth, a statute was made,12 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. 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,13 “the execution of an offender is for example, ut poena 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 shall 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 deprivation of the senses: but, if a lunatic has lucid intervals of understanding, he shall answer for what he does in those intervals, as if he had no deficiency.14 Yet, in the case absolute madmen, as they are not answerable for their actions, they should not be permitted the liberty of acting unless under proper control; and, in particular, they ought not to be suffered to go loose, to the terror of the king’s subject. It was the doctrine of our ancient law, that persons deprived of their reason might be confined till they recovered their senses,15 without waiting for the forms of a commission or other special authority from the crown: and now, by the vagrant acts,16 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 frenzy; our law looks upon this as an aggravation of the offense, rather than as an excuse for any criminal misbehavior. A drunkard, says Sir Edward Coke,17 who is voluntarius daemon, has no privilege thereby; but what hurt or ill soever he does, his drunkenness does aggravate it: nam omne crimen ebrietas, et incendit, et detegit. It has been observed, that the real use of strong liquors, and the abuse of them by drinking to excess, depend much upon the temperature of 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,18 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.19 The Roman law indeed made great allowances for this vice: “per vinum delapsis capitalis poena remittitur.”20 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.21

IV. A FOURTH deficiency of will, is where man commits an unlawful act by misfortune or chance, and not by design. Here the will observes a total neutrality, and does not cooperate 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 performance of a lawful act, the party stands excused from all guilt: but if a man be doing anything 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 offense, in doing antecedently what is in itself unlawful, he is criminally guilty of whatever consequence may follow the first misbehavior.22

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 deed and the will acting separately, there in 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 or housebreaker in his own house, by mistake kills one of his own family, this is no criminal action:23 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 defense. Ignorantia juris, quod quisque tenetur scire, neminem excusat, is as well the maxim of our own law,24 as it was of the Roman.25

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 should be excused for those acts, which are done through unavoidable force and compulsion.

1. OF this nature, in the first 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 suggest: 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 conscientiae, or whether the inferior in this case 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 Latimer and Ridley, in the bigoted 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 endeavored to restore superstition under the holy auspices of its 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 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;26 though in some cases the command or authority of the husband, either express or implied, will privilege the wife from punishment, even for capital offenses. And therefore if a woman commit theft, burglary, or other civil offenses 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.27 Which doctrine is at least a thousand years old in this kingdom, being to be found among the laws of king Ina the West Saxon.28 And it appears that, among the northern nations on the continent, this privilege extended to any woman transgressing in concert with a man, and to any servant that committed a joint offense with a freeman: the male or freeman only was punished, the female or slave dismissed; “proculdubio quod alterum libertas, alterum necessitas impelleret.”29 But (besides that in our law, which is a stranger to slavery, no impunity is given to servants, who are as much free agents as their masters) even with regard to wives, this rule admits of an exception in crimes that are mala in se, and prohibited by the law of nature, as murder and the like: not only because these are of a deeper dye; but also, since in a state of nature no one is in subjection to another, it would be unreasonable to screen an offender from the punishment due to natural crimes, by the
refinements and subordinations of civil society. In treason also, (the highest crime which a member of society can, as such, be guilty of) no plea of coverture shall excuse the wife; no presumption of the husband’s coercion shall extenuate her guilt:30 as well because of the odiousness and dangerous consequence of the crime itself, as because the husband, having broken through the most sacred tie of social community by rebellion against the state, has no right to that obedience from a wife, which he himself as a subject has forgotten to pay. In inferior misdemeanors also, we may remark another exception; that wife may be indicted and set in the pillory with her husband, for keeping a brothel: for this is an offense touching the domestic economy or government of the house, in which the wife has a principal share; and in also such an offense as the law presumes to be generally conducted by the intrigues of the female sex.31 And in all cases, where the wife offends alone, without the company or command of her husband, she is responsible for her offense, as much as any feme-sole.

2. ANOTHER species of compulsion or necessity is what our law calls duress per minas;32 or threats and menaces, which induce a fear of death or other bodily harm, and which take away for that reason the guilt of many crimes and misdemeanors; at least before the human tribunal. But then that fear, which compels a man to do an unwarrantable action, ought to be just and well grounded; such, “qui cadere possit in virum constantem, non timidum et meticulosum“, as Bracton expresses it,33 in the words of the civil law.34 Therefore, in time of war or rebellion, a man may be justified in doing many treasonable acts by compulsion of the enemy or rebels, which would admit of no excuse in the time of peace.35 This however seems only, or at least principally, to hold as to positive crimes, so created by the laws of society; and which therefore society may excuse; but not as to natural offenses, so declared by the law of God, wherein human magistrates are only the executioners of divine punishment. And therefore though a man be violently assaulted, and has no other possible means of escaping death, but by killing an innocent person; this fear shall not acquit him of murder; for he ought rather to die himself, than escape by the murder of an innocent.36 But in such a case he is permitted to kill the assailant; for there the law of nature, and self-defense its primary canon, have made him his own protector.

3. THERE is a third species of necessity, which may be distinguished from the actual compulsion of external force or fear; being the result of reason and reflection, which act upon and constrain a man’s will, and oblige him to do an action, which without such obligation would be criminal. And that is, when a man has his choice of two evils set before him, and, being under a necessity of choosing one, he chooses the least pernicious of the two. Here the will cannot be said freely to exert itself, being rather passive, than active; or, if active, it is rather in rejecting the greater evil than in choosing the less. Of this sort is that necessity, where a man by the commandment of the law is bound to arrest another for any capital offense, 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. for the preservation of the peace of the kingdom, and the apprehending of notorious malefactors, are of the utmost consequence to the public; and therefore excuse felony, which the killing would otherwise amount to.37

4. THERE is yet another case of necessity, which has occasioned great speculation among the writers upon general law; viz. whether a man in extreme want of food or clothing may justify stealing either, to relieve his present necessities. And this both Grotius38 and together with many other of the foreign jurists,39 hold in the affirmative; maintaining by many ingenious, humane, and plausible reasons, that in such cases the community of goods by kind of tacit concession of society is revived. And some even of our own lawyers have held the same;40 though it seems to be an unwarranted doctrine, borrowed from the notions of some civilians: at least it is now antiquated, the law of England admitting no such excuse at present.41 And this its doctrine is agreeable not only to the sentiments of many of the wisest ancients, particularly Cicero,42 who holds that “suum cuique incommodum ferendum est, potius quam de alterius commodis detrahendum“; but also to the Jewish law, as certified by king Solomon himself:43 “if a thief steal to satisfy his soul his when he is hungry, he shall restore sevenfold, and shall give all the substance of his house:” which was the ordinary punishment for theft in that kingdom. And this is founded upon the highest reason: for men’s properties would be under a strange insecurity, if liable to be invaded according to the wants of others; of which wants no man can possibly be an adequate judge, but the party himself who pleads them. In this country especially, there would be a peculiar impropriety in admitting so dubious an excuse: for by our laws such sufficient provision is made for the poor by the power of the civil magistrate, that it is impossible the most needy stranger should ever be
reduced to the necessity of thieving to support nature. This case of a stranger is, by the way, the strongest instance put by baron Pufendorf, and whereon he builds his principal arguments: which, however they may hold upon the continent, where the parsimonious industry of the natives orders every one to work or starve, yet must lose all their weight and efficacy in England, where charity is reduced to a system, and interwoven in our very constitution. Therefore our laws ought by no means to be taxed with being unmerciful, for denying this privilege to the necessitous; especially when we consider, that the king, on the representation of his ministers of justice, has a power to soften the law, and to extend mercy in cases of peculiar hardship. An advantage which is wanting in many states, particularly those which are democratical: and these have in its stead introduced and adopted, in the body of the law itself, a multitude of circumstances tending to alleviate its rigor. But the founders of our constitution thought it better to vest in the crown power of pardoning particular objects of compassion, than to countenance and establish theft by one general undistinguishing law.

VII. IN the several cases before-mentioned, the incapacity of committing crimes arises from a deficiency of the will. To these we may add one more, in which the law supposes an incapacity of doing wrong from the excellence and perfection of the person; which extend as well to the will as to the other qualities of his mind. I mean the case of the king: who, by virtue of his royal prerogative, is not under the coercive power of the law;44 which will not suppose him capable of committing a folly, much less crime. We are therefore, out of reverence and decency, to forbear any idle inquiries, of what would be the consequence if the king were to act thus and thus: since the law deems so highly of his wisdom and virtue, as not even to presume it possible for him to do anything inconsistent with his station and dignity; and therefore has made no provision to remedy such a grievance. But of this sufficient was said in a former volume,45 to which I must refer the reader.


Blackstone’s Footnotes (Tucker’s notes not yet added)

     1.    Hawk. P. C. 2.
     2.    Inst. 3. 20. 10.
     3.    1 Hal. P. C. 20, 21, 22.
     4.    LL. Athelstan. Wilk. 65.
     5.    Mirr. c. 4. § 16. 1. Hal. P. C. 27.
     6.    Dalt. Just. c. 147.
     7.    1. Hal. P .C. 26, 27.
     8.    Emlyn on 1 Hal. P. C. 25.
     9.    Foster. 72.
   10.    3 Inst. 6.
   11.    1 Hal. P. C. 34.
   12.    33 Hen. VIII. c. 20
   13.    Inst. 6.
   14.    1 Hal. P. C. 31.
   15.    Bro. Abr. tit. corone. 101.
   16.    17 Geo. II. c. 5.
   17.    1. Inst. 247.
   18.    Sp. L.b. 14. c. 10.
   19.    Puff. L. of N. b. 8. c. 3.
   20.    Ff. 49. 16 .6.
   21.    Plowd. 19.
   22.    1 Hal. P. C. 39.
   23.    Cro. Car. 538.
   24.    Plowd. 343.
   25.    Ff. 22. 6. 9.
   26.    Hawk. P. C. 3.
   27.    1 Hal. P. C. 45.
   28.    cap. 57.
   29.    Stiernhook de jure Sueon. l.2. c. 4.
   30.    1 Hal. P. C. 47.
   31.    1 Hawk. P. C. 2, 3.
   32.    See Vol. 1. pag. 131.
   33.    l.2.f. 16.
   34.    Ff. 4. 2. 5, & 6.
   35.    1 Hal. P. C. 50.
   36.    Ibid. 51.
   37.    1 Hal. P. C. 53.
   38.    de jure b. & p. l.2. c. 2.
   39.    L. of Nat. and N. l.2. c. 6.
   40.    Briton, c. 10. Mirr. c. 4. § 16.
   41.    1 Hal. P. C. 54.
   42.    de off. l.3. c. 5.
   43.    Prov. 6:30.
   44.    1 Hal. P. C. 44.
   45.    Book. I. ch. 7. pag. 244.