CHAPTER FIFTEENTH,

OF MISDEMESNORS.

WE have confidered all the crimes which are exprefsly defined

by ftatute or common law, we have feen that the existence, the peace, the good order and the ftability of the government, and the rights and happiness of the citizens, are effectually guarded and protected, by the terror of penalties and punishments. But as it has been confidered to be impoflible to defignate every action, that deferves punishmeut, courts of law have affumed a difcretionary power of punishing those acts which they deem criminal, (tho warranted by no exprefs law) as mifdemefnors at common law. It has therefore been adopted as a general maxim, that all kinds of crimes of a public nature, all difturbances of the peace, and all other misdemefnors of notorioufly evil example, may be profecuted as public offences-but injuries of a private nature, which do not concern the public, cannot be punished as mifdemefnors. The punishment to be inflicted, muft be fine, imprifonment and pillory, which are the common law punishments. It has alfo been laid down as a general principle, that every crime committed against the law of nature may be punished at the difcretion of the judge, where the legislature has not appointed a particular punishment.

Our courts have recognized this doctrine of the common law but they ought to exercife fach power with great circumfpection, and caution. It appears to me not only incompatible with justice, and dangerous to civil liberty, but unneceffary for the prefervation of government. The fupreme excellency of a code of criminal laws confifts in defining every act that is punishable with fuch certainty and accuracy, that no man fhall be expofed to the danger of incurring a penalty without knowing it, and which fhall not give to courts an incalculable latitude of conftruction, with respect to the conduct of mankind, and an unbounded difcretion in punithment. Upon the principle adopted refpecting miflemefnors, a man may do an act, which he knows has never been punished, and against which there is no law, yet upon a profecution for it, the court may by a determination fubfequent to the act, judge it to be

2 Hawk. P. C. 2.0. 4 Black Com. 213. of Equity, 180.

a

Kaims' principles of

a crime, and inflict on him a fevere punishment. This mode of proceeding manifeftly partakes of the odious nature of an ex poft facto law, and fubjects a man to an inconvenience which he could not poffibly forefee, or calculate upon, at the time of doing the act. Where the law is explicit, and a man knows the confequence of doing a certain act, he cannot complain if he is fubjected to fuffer the punishment to which he has knowingly expofed himself; and the rifque of which he took into calculation at the time of committing the crime. But to punish a man, when he could not know that the act was the fubject of criminal jurifprudence, cannot be deemed confiftent with reafon or juftice.

Courts of law, ought always to be under the guide and restraint of ftrait rule, and precife definition: they ought never to be allowed to depart from the well known boundaries of exprefs law, into the wide field of difcretion. If they are accustomed to the exercife of fuch a power in one inftance, there is reafon to apprehend the extention of it to others, and that the law inftead of being founded on plain and fixed principles, will be as uncertain as the whim and caprice of the court. There certainly is danger to be apprehended from the exercife of fuch a power in times of convulfions, when the fpirit of party runs high for then it is very poffible that courts, influenced by political prejudice, might punish with great severity, actions which are very innocent in a moral view. No man can feel fafe and quiet, when he knows that courts have a power over him, the extent of which is fo undefined, and the confequence fo uncertain, that he cannot know the one, or calculate upon the other. But when it is considered, that this power is unneceflary for the public welfare, it is the more extraordinary that it has ever been exercifed. Society can never be in danger from an inability, or want of laws to punish a single crime. Whenever an act is done, of fuch a nature as merits punishment, the legislature may promulgate a law rendering it criminal and punishable in future, if it be probable that the repetition of fuch acts, may endanger the public peace and happinefs: But if there be no probability that fuch acts will be fo frequent as to produce fome political inconnienre, there is no neceflity to punish it for punishment is not

to

to be confidered as an act of vengeance, merely to punish a man because he has done wrong, but the object is to punish acts, the probable repetition of which, will injure the rights of the people and disturb the peace of the government. As then no ill confequence can refult from leaving unpunished the fingle commiffion of crimes, which deferve to be punished, and as the legiflature can in all cafes make laws exprefsly defining the acts which are to be deemed criminal, before any political mitchief can be produced, it is much better to deny to courts this difcretionary power of punishing the acts of mankind, as criminal, by an expoft facto determination, and leave it to the legislature to ascertain what acts, which are not now punishable, fhall hereafter be punished

I would not intimate that the courts in this ftate have abused this difcretionary power. I fhall mention one inftance where a profecution has been had, which may ferve to illuftrate this doctrine, and perhaps lead to the unfolding, and establishing principles which may be more accurate and definite. Information for a misdemesnor at common law, was brought against a man, and a woman who kept his houfe, for confining his wife in a cage a number of years, and abufing her. On the trial, the husband attempted to justify his conduct, by fhewing that the confinement was neceflary on account of her distraction, and that fhe was treated with all poffible tenderness. It is probable that he would have been acquitted, had not the tide of popular opinion and prejudice, been strong against him. The conviction however was founded on the principle, that the treatment was abufive, and the confinement unneceflary. The court confidered this to be a mifdemefnor at common law, and fined the man a large fum, and inflicted imprisonment on the woman that kept his house.

CHAPTER SIXTEENTH,

OF THE AGE AND CAPACITY TO COMMIT CRIMES.

To conftitute a crime, it is neceffary that there should be a vici

ous will, and an unlawful act. Where the will is not exercifed,

there

there can be no criminality, and as it is impoffible generally speaking to difcover the intention of the mind, in any way but by an overt act, this is with propriety made the criterion by-which human tribunals judge and decide with refpect to crimes, tho there can be no doubt, but in a moral view, that the perfon who has an intention to commit a crime, and is prevented by fome intervening circumftance, is as guilty as if he had done the act.

That exercise of the will which is effential to conftitute a crime, may be prevented, where there is a want of understanding, where the act is the refult of misfortune, accident, or mistake, or where it is done by compulfion.

Infancy is where the exertion of the will is wanting, on account of a defect of the understanding. Infants under the age of feven years are fuppofed to be totally incapable of committing a crime. Between the age of feven and fourteen years, it is prefumed that they are incapable; but as this is confidered to be the doubtful period, his capacity of difcerning between good and evil, must be the rule of determining. If an infant of this age appears to have a mischievous difpofition, and to have conducted in fuch a manner as to fhew himself poflefled of difcretion, he may be confidered guilty of a crime. The rule cannot be dependent on the age of the delinquent, becaufe we find great difference of capacity and diferetion at the fame age, but it muft wholly depend on the ftrength of the understanding ard the capacity to difcern between good and evil. A girl of thirteen years, has been executed for killing her miftrefs, and a boy of nine years, and one of ten for killing their companions, becaufe one by hiding himself, and the other, the body of him he had killed, they manifefted a confcioufnefs of guilt, and a difcretion to difcern between good and evil. A boy of eight years of age, has been executed for burning two barns, because he fhew malice, revenge and cunning. In fuch inftances, the malice fupplies the want of age.

Idiots and lunatics are incapable of exerciting the will for want of underflanding. If a man, in the full exercife of his reafon, commits a capital crime, and before trial is bereaved of it, he cannot be tried

14 Black. 22, 23. I Hawk. P. C. v

1 Hal. P. C. 26.

#4 Black. Com. 2.

tried on account of his incapacity to make his defence. If after he is tried and found guilty, and before judgment is pronounced, he lofe his fenfes, judgment fhall not be pronounced, and even after judgment, if he become diftracted, he fhall not be executed. When there is a doubt whether the party be compos or not, it fhall be tried by jury. If a lunatic has lucid intervals of understanding, and during that time commits a crime, he may be punished, for he then has that exercife of will which conftitutes criminality.

An unlawful act done by mere misfortune and accident, without any defign, implies a total abfence of the will, and therefore cannot be criminal: but here a diftin&ion is to be made, if the mifchief follows from the performance of a lawful act there is no guilt: but if a perfon is doing an unlawful act, and a confèquence enfies which he did not intend, the unlawfulcis of the act which he intended to do,makes him refponfible for all that follows.

y Ignorance and miflake refult from a defect of the will. If a man intending to do a lawful act, does that which is unlawful, the goodness of his intention removes all guilt but this must be ignorance in point of fact, and not an error in point of law. If a man intending to Kila thief in his houfe, kills one of bis own family, he is not guilty of murder: but if a man thinks he has a right to kill another for a mere provocation, and does it, this will not excufe him from the guilt of murder: for every one is bound and prefumed to know the law, and ignorance of the law which every one is bound to know, excufes no man.

When the act arifes from compulfion, or inevitable neceffity, there can be no guilt, because it is against the will. Thus where a man is compelled to do an 2 by threats and menaces, which give him juft caufe to apprehend death or bodily harm, he is in many instances deemed innocent of a crime. But this must be a juft and well grounded fear; fuch as will affect a man of courage and firmnefs, and not merely fuch as will affect a coward. Therefore in time of war and rebeliion, a man may be juftified in doing many treafonable acts, by compulfion of the enemy and rebels, which would forfeit his life in time of peace: but this will not Bbb jullify Ibid. 27.

* 4. Black. Com. 26.

Ibid. 30.