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Prisoner bred to a Lucrative Trade
to have liberty to work at it on
Jailor to take in work for
to have an slight part of
the money received as 1/8 - cut of the
cost the Prisoner to pay so much as
this common work is thought ordinarily
worth to the common Stock & to be allowed
to retain the rest — not however to
be excused from the Professions.
Thus the Gaoler would have an Interest in
exacting industry on the Prisoners
than the means of exercising it.
The Doctrine & the Language of the Law on this head of the Law on this head Writers
are far from being satisfactory
They divide for this purpose the State of Infancy into two 3 Periods — One The first from the birth till 7 years
of age — the second from thence to fourteen 14 — the 3d from thence to 21 Within the first without any hesitation they establish an
absolute irresponsibility impunity; tho' in the fact is, this is a new point & has never been decided. [+]
[+]
So a new point & has never been decided
But as the Judges, abandon'd to themselves
by the Legislature must decide if it become a question somehow
or other, we may give a pretty good guess how they
would decide it, were it to come
before them; & conclude that the slightest
& most obscure Authority no as was way
opposed by reason, would determine
them to [fix accede to the period of absolute
irresponsibility according to] the prevailing notion.
Between the first and second they establish "prima facie (as there language is) an impunity;
that is, that punishment a verdict of Guilty conviction shall not follow be received upon the simple proof of the fact
But they allow of the occurring of the Verdict of conviction it's being received in certain cases
that is wherever there is express proof of "canniving" † "malice" # ǂ "dolus || * "consciousness of
guilt" || # discretion ǂ, mischievous discretion # expressions upon which they ring the changes, as if their meaning was the same & which
they consider as synonymous. meaning the same thing When the cases on which they found these conclusions come to
be examined into, it turns out that in all of them the Culprits after the commission
of the crime took artful measures to conceal it: + a circumstance which seems in truth appears to afford
conclusive proof of their sensibility & apprehension of punishment, & consequently of the utility
of extending it to their respective ages. But the import of the term malice is [here, as in this case as
throughout the Law in all other cases where used in Law] very loose & fallacious; for if by Malice
be meant the an appetite for another's pain, that will be found to subsist in children
of the most tender age. Before they they we are trusted out of their Cradle or their Nurse's
arms & consequently before we they we are able to do any sort of mischief; we catch that appetite
from the perpetual incitement to beat the person around us upon any Little dispute their encouragement & example, & shall/will continue to do so so long as Nurses are
Nurses & not Philosophers. Every body must have observed Nurses for the sake of how frequent an amusement it is for a
themselves sport them Nurse to incite her little charge to gratify it's pique against a bystander who
has offended it by beating him & pretending to beat him herself. to lend it her assistance If Malice therefore were
allowed to take a case out of the exemption, it would frustrate it altogether.they will confine it, within much narrower limits than those which they have assigned. [+]
[+] And as its' the preserve ought not of this distinction alone
itself to preclude from, His so neither ought
not its absence alone to to the
exemption: for as the mischief of
firing houses for instance is equally
great so ought is the necessity of combating
it equally strong, whether it
be done for the sake of wreaking giving pain
vengeance on to those that belong to it
or merely from that disposition to
experiment which is so strong in us
upon our first entrance into this
Scene of things. — I see not that at
the age at which some children have been put to death [by Sentence of the Law] it could be more certain that the vindictive any more than the experimental desire
would continue
Thus we may Here therefore, we may once more recognize the influence of the vindictive principle
Where they conceived there was what they call malice, the offender appeared a fit object of vengeance, where they conceived
there was none, not: so here too we may remark the same hideous instances from choices that we have had occasion to remark formerly between from impunity to
extirpation. — A Child born under Aries shall kill men or burn Houses as he pleases: while
a Child born under Taurus the same year shall not steal a Handkerchief without undergoing that extreme
punishment with which the the most atrocious offenders in the full vigor of their passions.
To lay down a general rule to govern our application of punishment in this case, we
should say, That no Punishment should be applied [+] so long as it by not being out in of contention
it would be useless: That as soon as it would it should be applied: but that so long as
they come short of being arrived at that period of understanding when the balance between
sufferings comes to be made, with tolerable accuracy & reflection dictates the postponing of smaller present ones [suffering]
† ǂ || ǂ 4. Comm. 23-24
+ Foster 72.
+ Hale H.P.C. 18 19 20
25 26
+ H.H.P.C. 25 26 27 28 * H.H.P.C. 26
+ The youngest child of whose
suffering we have an instance on
record is of a Boy of between 8 & 9 years of age who was hanged
at Abingdon in the year 1629 for
firing two Barns Note of the Publication
to H.H.P.C. 25.
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