How it is obtained. R. v. Barnardo. granted by any judge of the High Court, sitting either in Court or in Chambers. The application for it should be supported by an affidavit setting forth the grounds on which it is prayed for, as the Court has discretion, even in the first instance, to refuse it. (s) The motion for a writ of habeas corpus is in most cases, except during vacation, made in Court. In the case of children, however, it should always be made to a Judge in Chambers. (t) On the hearing of such application, the judge may, instead of granting the writ at once, direct a summons to issue, but such summons cannot be issued without the leave of a judge. It must be drawn up at, and issue from the Crown Office, the time and place for such return being specified in a notice served with it. Where no return is made a writ of attachment will at once issue against the person failing to make it. Although the old rule was that in proceedings of habeas corpus, costs could not be awarded, in the case of children, judges in Chambers now frequently allow them.(u) The writ will not be issued where it seems impossible that it should be obeyed, as where the person alleged to be detained is out of the custody or control of the person against whom the writ is applied for, but where the person having such custody or control has illegally parted with it, the mere fact that he has not the child in his possession at the time the writ issues, will not hinder the Court from making absolute the rule nisi granting a writ.(x) (s) R. v. Hobhouse, 3 B. & A. 420. (t) Per Blackburn, Mellor, and Lush, L.JJ., June 11th, 1872; see Short and Mellor's "Practice of the Crown Office," p. 349. (u) See Short and Mellor's "Prac tice of the Crown Office," p. 364. CHAPTER II. CRIMES COMMITTED BY CHILDREN. Presumptions years of age. and fourteen. AN infant under the age of seven years is conclusively presumed to be incapable of committing a felony, and under seven no averment will be received to rebut this presumption: it is a presumptio juris et de jure. Should the jury find a verdict of guilty against such a child, it would be the duty of the Court ex officio to discharge him. (a) An infant between the ages of seven and fourteen Between seven years is likewise presumed to be incapable of committing a felony, but in this case the presumption may (except on a charge of rape) be rebutted: it is presumptio juris, but not de jure. The capacitas doli should be clearly and affirmatively proved, as for instance, by calling the schoolmaster of the child. (b) The circumstances of the commission of the crime may, however, be sufficient in themselves to show deliberate malicious intent, as where a boy of nine years of age killed another boy of the same age and hid the body, in which case it was held that the concealment showed a mens rea. (c) So too where a boy Proof of mens of ten, after having killed his companion, concealed himself, it was held that by his conduct he showed clearly a capacity to discern good from evil, and he was "presently hanged." (c) A girl of thirteen was burned for the crime of petty treason, though it appears to have been asserted at the trial that no infant under the age of fourteen could be hanged; (c) an interesting but not very obvious distinction. It has been laid down by Pollock, C.B., that the jury must be satisfied, before they can find a prisoner guilty, that he must have arrived "at that maturity of (a) Hale, P. C. 27. (c) Hale, P. C. 27. (b) R. v. Clarke, unreported. rea. As to rape and indecent assault. By order of parent. At Common intellect which was a necessary condition of the crime charged." (d) A child of ten years, living with its parents, and indicted with them for the offence of coining, was directed to be acquitted. (e) In the case of a girl of ten, charged with stealing coals, the judge left two questions to the jury: first, did the prisoner take the coals; secondly, if so, had she a guilty knowledge. (ƒ) The youngest child executed in England, was a boy of eight, named Dean, who had with "malice, revenge, craft and cunning," burned two barns at Windsor. (g) A child under fourteen years of age, is conclusively presumed to be incapable of committing the crime of rape, and the "Criminal Law Amendment Act, 1885," has in no way affected this Common Law presumption. (h) Where an indictment charges a boy under fourteen with an assault with intent to commit rape, and in the second count, with a common assault, though he must be acquitted on the first count, he may be found guilty on the second. (i) It will at first appear a somewhat strange anomaly in English law, that while a wife, who commits a crime in the presence of her husband, is presumed to do so under his compulsion, there is no such presumption in the case of a child who commits a crime at the instigation of a parent; for, says Hale, (k) "the command is void in law, and can protect neither the commander nor the instrument." Where, however, the child is of such tender years as to be incapable of understanding the nature of the act committed, the person instigating the crime will be liable as a principal in the first degree, and no guilt will attach to the child. () Punishments for.—Any child found guilty of a criminal offence was at Common Law liable to the same penalties (d) R. v. Vamplew, 3 F. & F. (h) R. v. Waite, 17 Cox, 554. (i) R. v. Eldershaw, 3 C. & P. 396. 522. (e) R. v. Boober, 4 Cox, 272. 25 n. as an adult. Numerous statutes have, however, gradually modified this liability, and the punishments now inflicted on children differ in degree, and frequently also in kind, from those to which adult persons are subject. schools. The Reformatory Schools Act, 1866, (m) as amended Reformatory by the Acts of 1893 (n) and 1899, (o) provides for the sending of children under sixteen years of age (but not under twelve years, unless previously convicted of an offence punishable with imprisonment or penal servitude), who have been convicted of any crime, to a certified Reformatory School. The child is not to be sentenced to imprisonment or penal servitude in addition to being sent to the Reformatory School, and the period of detention in the school must not be less than three, or more than five years. It must be such a sentence, also, as will, in the opinion of the Court, expire at or before the offender reaches the age of nineteen years. (p) After eighteen. months' detention, the child may, however, be allowed out on licence, to live with a trustworthy and respectable person named in the licence. (q) The school should be one conducted in accordance with the offender's religious persuasion,(») and if it is not so conducted, the parent or guardian may apply to have the child transferred to another school. (s) After an offender has been let out on licence, the managers of the school may have him bound apprentice, with his own consent, to any trade, calling, or service (or by 54 & 55 Vict. c. 23, s. 1, dispose of him by emigration), notwithstanding that his period of detention has not expired. (t) An Act of great importance in its bearing on the punishment of children is the Summary Jurisdiction Act, 1879. (u) Powers of magistrates. 66 Child " under twelve years. "Young person. Section 10 enacts that where a child (i.e., any person under twelve years of age) is charged before a Court of summary jurisdiction, with any indictable offence other than homicide, the Court may, in their discretion, with the consent of the parent or guardian,(x) deal summarily with the offence, and inflict the same description of punishment as might have been inflicted had the case been tried on indictment. But no child can be sent to penal servitude, and if imprisonment be inflicted it must not exceed a month, nor must a fine exceed 40s. If the child is a male, he may be whipped with not more than six strokes of the birch, either in addition to, or in substitution of, any other punishment. The parent should be made to understand the nature of the charge, and if he is not present, the Court may remand the child for the purpose of securing his attendance. (y) Section 11 makes the same provisions with regard to a "young person" (i.e., a child over twelve and under sixteen years) charged with certain offences, mentioned in the schedule, (2) except that the presence and consent of the parent or guardian is not necessary, but the "young person" must himself consent to be dealt with summarily. In such cases imprisonment must not exceed three months nor a fine exceed 10l. If the young person is a male, and, in the opinion of the Court, under fourteen years of age, he may be ordered to receive not more than twelve strokes of the birch. (a) The offences mentioned in the first column schedule to which the above section is applicable, are: simple larceny, offences declared by statute to be punishable as simple larceny, embezzlement, receiving stolen goods, aiding or abetting in, or attempting to commit, a larceny; (b) and in the second column to offences under the "Offences against the Person Act," "Malicious Injuries to Property Act," and the Post-Office Laws. (a) See post, p. 235, n. (h). (4) Schedule. (x) Id. s. 49. (y) Id. s. 10, ss. 2. (z) Schedule summarized below. |