[BOOK I.

Sec. 4. It shall be lawful for any such court as aforesaid, if it shall think fit upon the application of any person aggrieved, and immediately after the conviction of any person for felony, to award any sum of money, not exceeding one hundred pounds, by way of satisfaction or compensation for any loss of property suffered by the applicant through or by means of the said felony, and the amount awarded for such satisfaction or compensation shall be deemed a judgment debt due to the person entitled to receive the same from the person so convicted, and the order for payment of such amount may be enforced in such and the same manner as in the case of any costs ordered by the court to be paid under the last preceding section of this act. (*)

Sec. 5. The word forfeiture,' in the construction of this Act, shall not include any fine or penalty imposed on any convict by virtue of his sentence.

Sec. 6. The expression convict,' as hereinafter used, shall be deemed to mean any person against whom, after the passing of this Act, judgment of death, or of penal servitude, shall have been pronounced or recorded by any court of competent jurisdiction in England, Wales, or Ireland, upon any charge of treason or felony.

By sec. 7, when any convict shall die or be made bankrupt, or shall have suffered any punishment to which sentence of death if pronounced or recorded against him may be lawfully commuted, or shall have undergone the full term of penal servitude for which judgment shall have been pronounced or recorded against him, or such other punishment as may by competent authority have been substituted for such full term, or shall have received Her Majesty's pardon for the treason or felony of which he may have been convicted, he shall thenceforth so far as relates to the provisions hereinafter contained, cease to be subject to the operation of this Act.

Sec. 8. No action at law or suit in equity for the recovery of any property, debt, or damage whatsoever shall be brought by any convict against any person during the time while he shall be subject to the operation of this Act; and every convict shall be incapable, during such time as aforesaid, of alienating or charging any property, or of making any contract, save as hereinafter provided.

By sec. 9, the Crown may appoint administrators of a convict's prop

son arrested is a banker's clerk, carrying a bag of gold to the bank, the banker, who is the owner of the money, would have a right to interfere in such a case against any order being made. I also wish to guard myself against being supposed to decide that if the prisoner was adjudicated bankrupt by reason of an act of bankruptcy committed before his arrest, the trustee might not have a right to intervene. Nothing appears in the present case to raise this point. So far as appears, the prisoner at the time of his arrest was in possession of moneys which he might have disposed of in any way he pleased. Then sect. 3 of the Act for Abolishing Forfeitures for Treason and Felony provides that such moneys shall be subject to the power of the criminal court, to make an order for the pay

ment out of them of the costs of the prosecution. That power may be exercised by. the court, notwithstanding every effort which make away with the moneys. In case of the prisoner may make, whilst sui juris, to bankruptcy intervening not a bankruptcy

by reason of an act of bankruptcy antecedent to the arrest - the trustee takes what was the property of the bankrupt, and subject to all the rights of third parties previously existing. I think there did exist in the present case, at the time of the adjudication of bankruptcy, a vested right, or lien, or hold, by virtue of the statute, on the moneys found on the person of the prisoner at the time of his arrest, and that consequently the order was rightly made.'

(z) See R. v. Lovett, 11 Cox, C. C. 602.

erty. By sec. 13, they may pay out of the property costs of the prosecution, &c., and the debts and liabilities of the convict.

By sec. 15, the administrator may cause to be paid or satisfied, out of such property, such sum of money by way of satisfaction or compensation for any loss of property or other injury alleged to have been suffered by any person through or by means of any alleged criminal or fraudulent act of such convict, as to him shall seem just, although no proof of such alleged criminal or fraudulent act may have been made in any court of law or equity; and all claims to any such satisfaction or compensation may be investigated in such manner as the administrator shall think fit, and the decision of the administrator thereon shall be binding: Provided always, that nothing in this Act shall take away or prejudice any right, title, or remedy to which any person alleging himself to have suffered any such loss or injury would have been entitled by law if this Act had not passed.

By sec. 17, the several powers herein before given to the said administrator, or any of them, may be exercised by him in such order and course, as to priority of payments or otherwise, as he shall think fit; and all contracts of letting or sale, mortgages, conveyances, or transfers of property, bona fide made by the said administrator under the powers of this Act, and all payments or deliveries over of property, bona fide made by or under the authority of the said administrator for any of the purposes herein before mentioned, shall be binding; and the propriety thereof, and the sufficiency of the grounds on which the said administrator may have exercised his judgment or discretion in respect thereof, shall not be in any manner called in question by such convict, or by any person claiming an interest in such property by virtue of this Act.

By sec. 18, the property reverts to the convict or his representatives on completion of sentence, pardon, or death.

By sec. 21, if no administrator is appointed, a curator may be appointed by justices.

By sec. 27, the execution of judgments against convicts is provided for.

By 33 & 34 Vict. c. 29, s. 14, every person convicted of felony shall for ever be disqualified from selling spirits by retail, and no licence to sell spirits by retail shall be granted to any person who shall have been so convicted as aforesaid; and if any person shall, after having been so convicted as aforesaid, take out or have any licence to sell spirits by retail, the same shall be void to all intents and purposes; and every person who, after being so convicted as aforesaid, shall sell any spirits by retail in any manner whatever, shall incur the penalty for doing so without a licence.

By 9 Geo. 4, c. 32, s. 3, after reciting that it is expedient to prevent all doubts respecting the civil rights of persons convicted of felonies, not capital, who have undergone the punishment to which they were adjudged, it is enacted: That where any offender hath been or shall be convicted of any felony not punishable with death, and hath endured or shall endure the punishment to which such offender hath been or shall be adjudged for the same, the punishment so endured hath and shall have the like effect and consequences as a pardon under the

great seal as to the felony whereof the offender was so convicted: Provided always, that nothing herein contained, nor the enduring of such punishment, shall prevent or mitigate any punishment to which the offender might otherwise be lawfully sentenced on a subsequent conviction for any other felony.

CHAPTER THE SECOND.

OF PERSONS CAPABLE OF COMMITTING CRIMES.

It is a general rule that no person shall be excused from punishment for disobedience to the laws of the country, unless he be expressly defined and exempted by the laws themselves. (a) The inquiry, therefore, as to those who are capable of committing crimes, will best be disposed of by considering the several pleas and excuses which may be urged on behalf of a person who has committed a forbidden act, as grounds of exemption from punishment.

Those pleas and excuses must be founded upon the want or defect of will in the party by whom the act has been committed. For without the consent of the will, human actions cannot be considered as culpable; nor where there is no will to commit an offence, is there any just reason why a party should incur the penalties of a law made for the punishment of crimes and offences. (b) The cases of want or defect of will seem to be reducible to four heads: I. Infancy. II. Non compos mentis. III. Subjection to the power of others. IV. Ignorance.

Infants.

I. The full age of man or woman by the law of England is twenty-one years: (c) under which age a person is termed an infant, and is exempted from punishment in some cases of misdemeanors and offences that are not capital. (d) But the nature of the offence will make differences which should be observed. Thus, if it be any notorious breach of the peace, as a riot, battery, or the like, an infant above the age of fourteen is equally liable to suffer as a person of the full age of twenty-one; (e) and if an infant judicially perjure himself in point of age, or otherwise, he shall be punished for the perjury; and he may be indicted for cheating with false dice, &c.: (f) but if the offence charged by the indictment be a mere non-feasance (unless it be of such a thing as the party be bound to by reason of tenure or the like, as to repair a bridge, &c.), (g) there, in some cases, he shall be privileged by his non-age, if under twenty-one, though above fourteen years; because laches in such a case shall not be imputed to him. (h)

(a) 4 Blac. Com. 20.

(b) 1 Hale, 14.

(c) It is the full age of male or female according to common speech. Lit. sec. 104,

259.

(d) 1 Hale, 20.

(e) 4 Blac. Com. 23, 1 Hale, 20. Co. Lit. 247 b.

(f) Bac. Abr. Inf. (H.) Sid. 258. 48 & 49 Vict. c. 69, s. 4.

1

See

1 In America a mere child cannot be made criminally responsible for a nuisance created on his land, P. v. Townsend, 3 Hill, 479.

It is said that if an infant of the age of eighteen years be convicted of a disseisin with force, yet he shall not be imprisoned; (i) and the law is said to be, that though an infant at the age of eighteen or even fourteen, by his own acts may be guilty of a forcible entry, and may be fined for the same, yet he cannot be imprisoned, because his infancy is an excuse by reason of his indiscretion; and it is not particularly mentioned in the statute against forcible entries, that he shall be committed for such fine. (j) An infant, however, cannot be guilty of a forcible entry or disseisin by barely commanding one or by assenting to one to his use; because every command or assent of this kind by a person under such incapacity is void; but an actual entry by an infant into another's freehold gains the possession and makes him a disseisor. (k)

With regard to capital crime the law is more minute and circumspect; distinguishing with greater nicety the several degrees of age and discretion: though 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. (1) But within the age of seven years an infant cannot be punished for any capital offence, whatever circumstances of a mischievous discretion may appear; for ex presumptione juris such an infant cannot have discretion; and against this presumption no averment shall be admitted. (m) An infant under the age of seven years cannot be guilty of felony; and therefore a defendant cannot justify taking such an infant into custody and taking him before a magistrate upon the ground that he had been caught stealing a piece of wood. (mm)

On the attainment of fourteen years of age, the criminal actions of infants are subject to the same modes of construction as those of the rest of society; for the law presumes them at those years to be doli capaces, and able to discern between good and evil, and therefore subjects them to capital punishments as much as if they were of full age. (n) But during the interval between fourteen years and seven,' an infant shall be prima facie deemed to be doli incapax, and presumed to be unacquainted with guilt; yet this presumption will diminish

note (1). 4 Blac. Com. 23. A pardon was granted to an infant within the age of seven years, who was indicted for homicide; the jury having found that he did the fact before he was seven years old. 1 Hale, 27 (edit. 1800), note (e).

(mm) Marsh v. Loader, 14 C. B. (N. S). 535.

(n) Dr. & Stu. c. 26. 247. Dalt. 476, 505. Abr. Inf. A. & H.

AMERICAN NOTE.

1 In different States of America there are different ages fixed under which an infant is doli incapax. Thus in Texas the infant must be over nine years of age, and if under thirteen evidence must be given of his criminal capacity, Parker v. S., 20 Tex. Ap.

Co. Lit. 79, 171, 1 Hale, 25. Bac.

451, and the death penalty will not be inflicted when the prisoner is under seventeen. In Illinois the ages respectively are ten and fourteen. Angelo v. P., 96 Ill. 209; 36 Am. R. 132.