2. Grassatores qui cum ferro aggredi & spoliare instituunt, capite puniuntor.(a)

3. Famosi latrones ad bestias vel furcas damnantor. Digest. de pænis.(b)

If we come to the laws and customs of our own kingdom, we shall find the punishment of theft in several ages to vary according as the offence grew and prevailed more or less. (c)

Among the laws of king Athelstan, mentioned by Bramp[12]ton, p. 849, 852, 854. Non parcatur alicui latroni supra 12 annos & supra 12d. quin occidatur.(d) Edmund his successor,* præcepit nè infra 15 annos, vel pro latrocinio infra 12d. occidatur, nisi fugerit, vel se defenderit: Malmsbury tells us, that in the time of William I. theft was punished with castration, and loss of eyes; (e) but in the time of Henry I. the ancient law, which continues to this day, was ut siquis in furto vel latrocinio deprehensus fuerit suspenderetur.(ƒ)[2]

(a) Dig. eod. tit. l. 28. §. 10.

(b) Dig. eod. tit. l. 28. §. 15.

(c) By the laws of Ethelbert, if one man stole any thing from another, he was to restore three fold, besides a fine to the king, l. 9. If he stole any thing from the king, he was to restore nine-fold, l. 4.

By the laws of Ina a thief was punished with death, unless he redeemed his life capitis estimatione l. 12. which was COs. l. 7. but if a villain, who had been often accused, should be taken in a theft, he was to have a hand or foot cut off, l. 18.

By the laws of Alfred whoever stole a mare with the foal, or a cow with the calf, was to pay 40s. besides the price of the mare or cow, l. 16. Whoever stole any thing out of a church, was to pay the value, and a fine according to the value; and also was to have that hand cut off, which committed the fact, l. 6. If any person committed a theft die Dominico, or any other great festival, he was to pay double 7. 5.

(d) By the first law of Athelstan it was but 8d. Wilkins leges Anglo-Sax. p. 56. but afterwards by the laws of the same king, enacted at London, and thence called judicia civitatis Lundonia, no one was to be put to death for a theft under 12d. Ibid. p. 65. But in case the thief fled, or made resistance, then he might be put to death, though it were under that value, Ibid. p. 70. By the law of Cnute theft was punished with death, Ibid. p. 134. l. 4. and p. 143. l. 61.

(*) This is a mistake, for no such law is found among the laws of that king, but it is among the later laws of king Athelstan, Vide Judicia Civ, Lond. Wilk. leg. Anglo. Sax. p.70. (e) By the laws of William I. it was expressly prohibited, that any should be hanged or put to death for any offence, but that his eyes should be pulled out, his testicles, hands or fect cut off, according to the degree of his crime, l. 67. apud Wilkins Leg. Anglo-Sux. p. 229. p. 218.

(f) In former times, though the punishment of theft was capital, yet the criminal was permitted to redeem his life by a pecuniary ransom; but in the 9th year of Hen. I. it was enacted, that whoever was convicted of theft (or any other felony, 3 Co. Instit. 53.) should be hanged, and the liberty of redemption was entirely taken away. Wilk. leg. Anglo-Sax. p. 304. This law still remains at this day; but considering the alteration in the value of money, the severity of it is much greater now than then, for 12d. would then purchase as much as 40s. will now; and yet a theft above the value of 12d. is still liable to the same punishment; upon which Sir Hen. Spelman justly observes, that while all things else have rose in their value and grown dearer, the life of man is become much cheaper. Spelm in verbo laricinium; from hence that learned author takes occasion to wish, that the ancient tenderness of life were again restored Justum certé est, ut collapsa legis æquitas restauretur, & ut divinæ imaginis vehiculum, quod superiores pridem ætates ob gravissima crimina nequaquam tollerent, levioribus hodie ex delictis non perderetur.

[2] This is no longer the Law of England. Mr. Welsby in his notes to 4th Blac. Comm. Appendix A. gives the following statement of offences, (now 1844,) punishable with death.

High Treason, at Common Law.

Murder, 9 Geo. IV. c. 31. s. 3.

And although many of the schoolmen and canonists are of opinion. that death ought not to be inflicted for theft(g), yet the necessity of the peace and well ordering of the kingdom hath [ 13 ] in all ages and in almost all countries prevailed against that opinion, and annexed death as the punishment of theft, when the offence hath grown very common and accompanied with enormous circumstances, though in some places more is left herein to the Arbitrium Judicis to give the same or a more gentle sentence according to the quality of the offence 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 case disputed 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 offences in all kingdoms and states: and there is a necessity it should be so; for regularly the true, or at least, the principal end of punishments is to deter men from the breach of laws, so that they may not offend, and so not suffer at all; and the inflicting of punishments in most cases is more for example and to prevent evils, than to punish. When offences grow enormous, frequent and dangerous to a kingdom or state, destructive or highly pernicious to civil societies, and to the great insecurity and danger of the kingdom and its inhabitants, severe punishments, even death itself, is necessary to be annexed to laws in many

(g) Scotus Sentent. 4. distinct 154 quæst. 3. Sylvester in Verbo furtum 3. Not only the schoolmen and canonists were of this opinion, but by what has been above said, it appears likewise to have been the sense both of the Jewish and Roman laws, and though, as our author says, 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 any rate, and by any means; for even obedience to just laws may be enforced by unlawful methods. Cic. Epist. 15. ad Brutum. Est pænæ modus, sicut rerum reliquarum; and again, Lib. I. de officiis. Est enim ulciscendi & puniendi modus. Besides, experience might teach us, that capital punishments do not always best answer that end. See Grot. de jur. bel. &c. Lib. II. cap. 20. §. 12. n. 3.

Administering or causing to be taken poison or other destructive thing with intent to commit murder. 1 Vict. c. 85. 8. 2.

Stabbing, cutting or wounding with intent to commit murder. Id. ibid.

Causing any bodily injury dangerous to life, with intent to commit murder. Id. ibid. Buggery. 9 Geo. IV. c. 31. 8. 15.

Robbery, accompanied with stabbing, cutting or wounding of the person robbed. 1 Vict. c. 87. 8. 2.

Piracy, accompanied with an assault with intent to murder any person on board of, or belonging to the ship, or with stabbing, cutting, or wounding of such person, or with any act whereby the life of such person may be endangered. Id. c. 88. s. 2.

Burglary, accompanied with an assault with intent to murder, or with stabbing, cutting, wounding, beating or striking any person being in the dwelling house. Id. c. 86. s. 2. Maliciously setting fire to a dwelling-house, any person being therein. Id. c. 89. s. 2. Maliciously setting fire to, casting away or destroying any ship or vessel with intent to murder any person, or whereby the life of any person shall be endangered. Id. s. 4. Exhibiting any false light or signal with intent to bring any ship into danger, or maliciously doing any thing tending to the immediate loss or destruction of a ship in dis tress. Id. s. 5.

Principals in the second degree, and accessories before the fact to the felonies above mentioned, except the offence of buggery, (see 9 Geo. IV. c. 31. s. 31.) are alike punishable with death. See 9 Geo. IV. c. 31. s. 3. 1 Vict. c. 85. s. 7; c. 86. s. 6; c. 87, 8. 9; c. 88, s. 4; c. 89. s. 11.

cases by the prudence of law-givers, though possibly beyond the single demerit of the offence itself simply considered.

Penalties therefore regularly seem to be juris positivi, & non naturalis, as to their degrees and applications, and therefore in different ages and states have been set higher or lower according to the exigence of the state and wisdom of the law-giver. Only in the case of murder there seems to be a justice of retaliation, if not ex [14] lege naturali, yet at least by a general divine law given to all mankind, Gen. ix. 6. And although I do not deny but the supreme king of the world may remit the severity of the punishment, as he did to Cain, yea, and his substitutes, sovereign princes, may also defer or remit that punishment, or make a commutation of it upon great and weighty circumstances, yet such instances ought to be very rare, and upon great occasions.

In other cases, the lex talionis in point of punishments seems to be purely juris positivi; and although among the Jewish laws we find it instituted, 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 injured is living and capable of another satisfaction of his damage, (which he is not in case 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 person injured, viz. the price of an eye for an eye, and the price of a hand for a hand, &c.(h)

CHAPTER II.

CONCERNING THE SEVERAL INCAPACITIES OF PERSONS, AND THEIR EXEMPTIONS FROM PENALTIES BY REASON THEREOF.

MAN is naturally endowed with these two great faculties, understanding and liberty of will, and therefore is a subject properly capable of a law properly so called, and consequently obnoxious to guilt and punishment for the violation of that law, which in respect of these two great faculties he hath a capacity to obey: The consent of

the will is that, which renders human actions either com[15] mendable or culpable; as where there is no law, there is no transgression, so regularly where there is no will to commit an offence, there can be no transgression, or just reason to incur the penalty or sanction of that law instituted for the punishment of crimes or offences. And because the liberty or choice of the will presupposeth an act of the understanding to know the thing or action chosen 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

(h) Maimonides More Nevochim, Pars. III. cap. 41.

actions. But general notions or rules are too extravagant and undeterminate, and cannot be safely in their latitude applied to all civil actions; and therefore it hath been always the wisdom of states and law-givers to prescribe limits and bounds to these general notions, and to define what persons and actions are exempt from the severity of the general punishments of penal laws in respect of their incapacity or defect of will.

Those incapacities or defects, that the laws, especially the laws of England, take notice of to this purpose, are of three kinds.

Ordinarily none of these do excuse those persons, that are under them, from civil actions to have a pecuniary recompense for injuries done, as trespasses, batteries, woundings; because such a re

compense is not by way of penalty, but a satisfaction for [ 16 ] damage done to the party: but in cases of crimes and misde

meanors, where the proceeding against them is ad pœnam, the law in some cases, and under certain temperaments takes notice of these defects, and in respect of them relaxeth or abateth the severity of their purishments.

CHAPTER III.

TOUCHING THE DEFECT OF INFANCY AND NONAGE.

THE laws of England have no dependence upon the civil law, nor are governed by it, but are binding by their own authority; yet must it be confessed, the civil laws are very wise and well composed laws, and such as have been found out and settled by wise princes and law-givers, and obtain much in many other kingdoms so far as they are not altered, abrogated, or corrected by the special laws or customs of those kingdoms, and therefore may be of great use to be known, though they are not to be made the rules of our English laws; and therefore though I shall in some places of this book, and here particularly mention them, yet neither I, nor any else may lay any weight or stress upon them, either for discovery or exposition

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 consider, 1. What the civil laws tell us concerning the same. 2. What the common laws of England have ordained touching it, and wherein these agree, and wherein they differ touching this matter.

The civil law distinguishes the ages into several periods [17] as to several purposes.

First, 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 seventeen years, a man is said 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 case. (e).

Thirdly. As to matrimonial contracts, the full age of consent in males is fourteen years, and of females twelve ;(ƒ) till that age they are said to be impuberes,(g) and are not bound by matrimonial contracts; and with this also our law agrees.(h)

Fourthly. As to matter of crimes and criminal punishments, especially that of death, they distinguish the ages into these four ranks. 1. Etas pubertatis plena.

2. Elas pubertatis.

3. Etas pubertali proxima. 4. Infantia.

1. Pubertas plena is eighteen years. (i)

2. Pubertas generally, in relation to crimes and punish[18]ments, is the age of fourteen years and not before; (k) and it

seems as to this purpose there is no difference between the

(a) Institut. Lib. I. tit. 2, 3. De Curatoribus. Dig. Lib. IV. tit. 4. de Minoribus, 7. 1. &c.

(b) Lit. §. 104. Co. Lit. §. 103.

(c) Institut. Lib. I. tit. 6. Quibus ex causis manumittere non licet, §. 5. & 7. Dig. Lib. III. tit 1. De Postulando, l. i. §. 3. At this age it was the custom among the Romans to lay aside the habits of children, and put on the garments of men. Val. Max. Lib. V. cap. 4. § 4. Sueton. August. cap. 8.

(d) Sce Swinb. of Wills, par. V. § 1. n. 6.

(e) It is quoted in Prince's case, 5 Co. Rep. 29. b. Office of Executors, p. 307. (f) Instit. Lib. 1. tit. 10. de nuptiis pr. Dig. Lib. XXIII. tit. 2. de ritu nuptia. rum, l. 4.

(g) Institut. Lib. I. tit. 22. Quibus modis tutela finitur. pr. Dig. Lib. XXVIII. tit. 6. de vulg. & pupil. substitut. l. 2. Macrob. Saturn. Lib. VII. cap. 7.

(h) Co. Lit. §. 104. At the same age they were permitted by the civil law to make a Testament. Digest. Lib. XXVIII. tit. 1. Qui testamenta facere possunt, l. 5. Institut. Lib. II. tit. 12. Quibus non est permissum facere testamentum, §. 1. Cod. Lib. VI. tit. 22. Qui testamenta facere possint, vel nol. l. 4. The common law seems not to have determined precisely at what age one may make a testament of a personal estate, it is generally allowed that it may be made at the age of eighteen. Office of Executors, p. 305. Co. Lit. 89. b. and some say under, for the common law will not prohibit the spiritual court in such cases, Sir. Thos. Jones, Rep. 210. 1 Vern. 255. 2 Vern. 469.

(i) Dig. Lib. I. tit. 7. de adoption. l. 40. § 1. Instit. eod tit. § 4. Dig. Lib. XLII. tit. 1. de re judicat. l. 57. Lib. XXXIV. tit. 1. De alimentis, l. 14. §. 1.

(k) Dig. Lib. XXIX. tit. 5. de Senatusconsulto Silaniano, &c. l. 1. §. 32.