II. All persons are capable of committing crimes, unless there be in them a defect of will ; for, to constitute a legal crime, there must be both a vicious will and a vicious in tention ; and such vicious intention or overt act is demon strated by some evident premeditation. So where an act is the effect of idiotism, infancy, lunacy, chance medley, compulsion, or necessity, there cannot be a vicious intent. Infants under the age of discretion, ought not be punished by any criminal prosecution whatever. The discretion that accompanies the perpetration or secretion of a crime will determine how far the infant possessed discretionary powers. Under the age of seven years an infant cannot be guilty of felony. In some cases of omission and commis sion, the law privileges an infant, if such action arise from his legal incapacity, but not for such acts as a breach of the peace when above the age of fourteen years. Persons of non-sane memory cannot be tried for what they have done in sound memory, and if after trial they become mad, judg ment cannot be pronounced upon them ; or if they become deranged after judgment, execution shall be stayed, and a jury shall determine, where there is any doubt, whether a party be compos or not. Drunkenness is a voluntary mad
ness, and is consequently an aggravation of an offence. The parties stand excused of accidents by chance medley, arising from the performance of some lawful act ; but there is no excuse where accidents happen from the per formance of an illegal act. The law seems to protect the wife in all felonies committed by her in company with her husband, except for murder and man-slaughter. Theft from necessity or starvation cannot be justified by the law of England ; for in • this country the poor laws are estab lished, to ameliorate the condition of the distressed. The law will not presume the king capable of doing any thing inconsistent with his station and dignity ; it therefore con siders him incapable of committing any crime.