of such justices shall forfeit and pay such sum not exceeding three pounds as the said justices shall adjudge, or if a male, shall be once privately whipped, either instead of or in addition to such imprisonment or imprisonment with hard labour; and the said justices shall from time to time appoint some fit and proper person being a constable to inflict the said punishment of whipping when so ordered to be inflicted out of prison. Provided always that, if such justices upon the hearing any such case shall deem the offence not to be proved or that it is not expedient to inflict any punishment, they shall dismiss the party charged on finding surety or sureties for his future good behaviour, or without such sureties, and then make out and deliver to the party charged, a certificate under the hands of such justices, stating the fact of such dismissal; and such certificate shall and may be in the form or to the effect set forth in the schedule hereto annexed in that behalf: Provided also that, if such justices shall be of opinion before the person charged shall have made his or her defence that the charge is from any circumstance a fit subject for prosecution by indictment, or if the person charged shall upon being called upon to answer the charge object to the case being summarily disposed of under the provisions of this act, such justices shall, instead of summarily adjudicating thereupon deal with the case in all respects as if this act had not been passed.

The 2nd section enacts, that any two or more justices may hear and determine the case at petty sessions, and in open court.

By the subsequent amending act (13 Vict. c. 37) the limit as regards the age of the accused is extended from fourteen to sixteen years.

Rules of Law applicable to Crimes committed by Young Persons.]-It may here be convenient to state the rules of law applicable to offences committed by young people. Under the age of seven years, no child can be criminally punished for any offence whatever, being by presumption of law not endowed with any sufficient discretion to be made answerable for crime. This legal immunity, however, entirely ceases at the age of fourteen, his capacity at this period being deemed sufficiently ripe to render him answerable for his

criminal acts. But, between the ages of seven and fourteen there is no fixed rule of law, the child's liability depending upon the ripeness of his intellect, and his capability of clearly discerning between right and wrong. The presumption of law, however, between these ages is still in the child's favour, which, nevertheless, may be rebutted by evidence of a mischievous discretion, the capacity to do evil and contract guilt being to be measured not so much by years as by the strength of the child's understanding and judgment; and upon this principle many children under fourteen years of age have been capitally punished; but in all cases where it is intended to rebut the presumption of law by evidence of a vicious discretion, that evidence should be clear and strong, Rex v. Owen, 4 C. & P. 236. In some old authorities it is laid down that an infant cannot be convicted upon his own confession, but the facts must be inquired into; and there seems to be very good sense in this, for if the infant is by presumption of law not of sufficient discretion to judge between right and wrong, what is the value of his admission of guilt? However, in modern practice this doctrine is never acted upon, and under the beforementioned statutes it is expressly enacted, that the child may be convicted upon its own confession. These considerations, however, will still strongly weigh with the magistrates in not very readily acting upon a confession of guilt, without strictly examining into the facts of the case.

To what Offences the Statute extends.]-The statute, it will be seen, applies only to cases of simple larceny in those punishable as simple larceny. Therefore, larceny as a servant, or stealing from the person, inasmuch as they are neither simple larcenies nor punishable as simple larcenies, are not within the act.

When there are several Parties charged with the the same Offence.]-The statute seems to contemplate the case of a charge of simple larceny against one individual only. But there appears no good reason

why if a simple larceny is committed jointly by several, and they are all under the prescribed age of sixteen, they may not all be dealt with summarily. Still, if any one of the parties accused objects to the case being summarily disposed of, the proper course, as it should seem, will be for the magistrates not to deal summarily with any of the prisoners (though there are some who do not object to the summary jurisdiction), but to treat the case as in all respects of the ordinary character, and hear it as with the view to a committal for trial; and this should clearly be the course when any one of the accused parties is above the prescribed age. There is certainly no decided authority for this course, but the inconvenience of having the same facts adjudicated upon by two distinct tribunals, and the prejudice which is likely to arise upon the trial before a jury, from the fact of a prior summary conviction upon the same evidence, clearly point to the propriety of not dealing summarily with the charge, unless it is to be finally disposed of. In such a case, therefore, the magistrates will do well to avail themselves of the proviso in the first section which enacts that, if they shall be of opinion that the charge is from any circumstance a fit subject for prosecution by indictment, to deal with it in all respects as if the act had not passed, and so hear the charge in the ordinary way.

As to the Age of the Accused.]—The age of the party is by the amending act (13 Vict. c. 37) not to exceed sixteen years. Proof, however, that the age does not exceed this limit is not necessary in order to confer jurisdiction, it being merely requisite that the age of the person so charged at the time of the commission, &c., of the offence shall not in the opinion of the justices exceed the age of sixteen years. However, should it appear by evidence that the party is above that age, they should proceed no further under this statute, the general words above quoted being intended merely to dispense with strict proof of the accused being under sixteen, but not intended to give jurisdiction where

proof is adduced that he is above that age.

The hear

ing is to be by two justices at least, except in the case of the metropolitan police magistrates and stipendiary magistrates, and is to be at petty sessions and in open

court.

How Defendant to be brought before the Justices.]— The mode of compelling the attendance of the accused party (where he is not already in custody) is by summons or warrant. The 4th section of the 10 & 11 Vict. c. 82, which directs the mode in which the process is to issue, enacts that, where any person whose age is alleged not to exceed sixteen years, shall be charged with any such offence on the oath of a credible witness before any justice of the peace, such justice may issue his summons or warrant to summon or to apprehend the person so charged to appear before any two justices, &c. From the language of this section, it would seem that whether a summons or a warrant is to issue in the first instance, the justice granting it should have a charge upon oath. This, however, cannot be requisite if a summons merely is to issue.

Bailing Accused, summoning Witnesses, &c.]—Ample provisions are contained in sections 5, 7, and 8, for the bailing of the accused on remand, the summoning and compelling the attendance of witnesses, and the service of the summons.

Mode of proceeding at the Hearing.]-As regards the course of proceeding at the hearing, the second section of the 13 & 14 Vict. c. 37, which is the only one purporting to deal with this subject, states—

That one of the justices before whom any person shall be charged and proceeded against under this act, or the hereinbefore mentioned acts, before such person shall be asked whether he or she has any cause to show why he or she should not be convicted, shall say to the person so charged these words, "We shall have to hear what you wish to say in answer to the charge against you; but if you wish the charge to be tried by a jury, you must object now to our

deciding upon it at once," and if such person or a parent of such person shall then object, the justices shall proceed with the charge as if the said acts had not been passed.

The introduction into this clause of the words "before such person shall be asked whether he or she has any cause to show why he or she should not be convicted," favours the opinion that the proceedings are to be in conformity with those adopted upon summary convictions; and that if the defendant does not exercise his option of being tried by a jury, he may be called upon to plead to the charge as upon an information, and upon his pleading guilty may be convicted without further evidence. However, let this be as it may, it will be well for the magistrates to hear the whole of the evidence, and in doing so the same advantages should be allowed the defendant as upon a summary conviction.

As to objecting to the summary Jurisdiction.]—If the defendant or one of his parents for him objects to the justices deciding upon the case at once, the subsequent proceedings will be the same as those before described upon a preliminary hearing with a view to a committal to trial. If no such objection is made, then the proceedings will be those before pointed. out as applicable to a summary conviction.

The Judgment.]—The judgment of the justices is fully provided for by the first section of the 10 & 11 Vict. c. 82, above set out. However, by the first section of the 13 & 14 Vict. c. 37, the punishment of whipping is forbidden to be inflicted upon any offender whose age exceeds fourteen years.

Certificate of Justices.]-It has been seen that, by the 1st section of the 11 & 12 Vict. c. 82, upon the magistrates dismissing the charge, they are to deliver to the party charged a certificate of such dismissal; and by the 3rd section it is enacted that any person who shall have obtained such certificate, or who shall