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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 primâ facie deemed to be doli incapax, and presumed to be unacquainted with guilt; yet this presumption will diminish with the advance of the offender's years, and will depend upon the particular facts and circumstances of his case. The evidence of malice, however, which is to supply age, should be strong and clear beyond all doubt and contradiction : but if it appear to the Court and jury that the offender was doli capax, and could discern between good and evil, he may be convicted and suffer death.(0) Thus, it is said that an infant of eight years old may be guilty of murder, and shall be hanged for it :(p) and where an infant between eight and nine years old was indicted, and found guilty of burning two barns, and it appeared upon examination that he had malice, revenge, craft, and cunning, he had judgment to be hanged, and was executed accordingly. (9)
An infant of the age of nine years, having killed an infant of the like age, confessed the felony; and, upon examination, it was found that he hid the blood and the body. The justices held that he ought to be hanged; but they respited the execution that he might have a pardon.(r) Another infant, of the age of ten years, who had killed his companion and hid himself was, however, actually banged ; upon the ground that it appeared by his hiding that he could discern between good and evil; and malitia supplet ætatem.(s) And a girl of thirteen was burnt, for killing her mistress. (1)
In the case of rape, the law presumes that an infant under the age of fourteen years is unable to commit the crime; and therefore it seems he cannot be guilty of it: but this is upon the ground of impotency rather than the want of discretion ; for he may be a principal in the second degree, as aiding and assisting in this offence as well as in other felonies, if it appear by sufficient circumstances that he had a mischievous discretion. (u)
The following is an important case as to the capability of an infant of ten years old being guilty of the crime of murder; and as to the expediency of visiting such an offender with capital punishment. At Bury summer assizes, 1748, William York, a boy of ten Case of murder years of age, was convicted, before Lord Chief Justice Willes, for the murder of a girl of about five years of age, and received sentence of death; but the Chief Justice, out of regard to the tender years of the prisoner, respited execution till he should have an opportunity of taking the opinion of the rest of the judges, whether it was proper to execute him or not, upon the special circumstances of the case ; which he reported to the judges at Serjeants' Inn in Michaelmas Terın following.
by a boy of ten (n) Dr. and Stu. c. 26. Co. Lit. 79, before which the party was not pre- year 171, 247. Dalt. 476, 505. I Hale 25. sumed to be doli capax. 4. Infantia, S Bac. Abr. 581.
which lasts till seven years, within (0) I Hale 25, 27. 4 Bla. Com. 23. which age there can be no guilt of a The civil law, as to capital punish capital offence. i Hale 17–19. ments, distinguished the ages into ip) Dalt. Just. c. 147. four ranks :-1. Ætas pubertatis ple (9) Dean's case, i Hale 25, note (u). ne, which is eighteen years. 2. Ætas (r) i Hale 27. F. Corone 57. B. Copubertatis,or pubertas generally, which rone 133. is fourteen years, at which time per- (8) Spigurpal's casc, i Hale 26. Fitz. sons were likewise presumed to be Rep. Corane, 118. doli capaces. 3. Ælas puberlati prox- () Alice de Waldborough's case, I ima; but in this the Roman lawyers Hale 26. were divided, some assigoing it to ten (u) i Hale 680. years and a balf, others to eleven;
The boy and girl were parish children, put under the care of a parishioner, at whose house they were lodged and maintained. On the day the murder happened, the man of the house and his wife went out to their work early in the morning, and left the children in bed together. When they returned from work, the girl was missing; and the boy, being asked what was become of her, answered that he had helped her up and put on her clothes, and that she was gone he knew not whither. Upon this, strict search was made in the ditches and pools of water near the house, from an apprehension that the child might have fallen into the water. During this search, the man, under whose care the children were, observed that a heap of dung near the house had been newly turned up; and, upon removing the upper part of the heap, he found the body of the child about a foot's depth under the surface, cut and mangled in a most barbarous and horrid manner. Upon this discovery, the boy, who was the only person capable of committing the fact, that was left at home with the child, was charged with the fact, which he stiffy denied. When the coroner's jury met, the boy was again charged, but persisted still to deny the fact. At length, being closely interrogated, he fell to crying, and said he would tell the whole truth. He then said that the child had been used to foul herself in bed ; that she did so that morning, (which was not true, for the bed was searched and found to be clean,) that thereupon he took her out of the bed and carried her to the dung-heap, and with a large knife, which he found about the house, cut her in the manner the body appeared to be mangled, and buried her in the dung-heap; placing the dung and straw that was bloody under the body, and covering it up with what was clean; and having so done, he got water and washed himself as clean as he could. The boy was the next morning carried before a neighbouring justice.of the peace, before whom he repeated his confession, with all the circumstances he had related to the coroner and his jury. The justice of the peace very prudently deferred proceeding to a commitment, until the boy should have an opportunity of recollecting himself. Accordingly he warned him of the danger he was in if he should be thought guilty of the fact he stood charged with, and admonished him not to wrong himself: and then ordered him into a room where none of the crowd that attended should have access to him. When the boy had been some hours in this room, where victuals and drink were provided for hins, he was brought a second time before the justice, and then he repeated his former confession :-upon which he was committed to gaol.
On the trial, evidence was given of the declarations before mentioned to have been made before the 'coroner and his jury, and
before the justice of the peace; and of many declarations to the same purpose which the boy made to other people after he came to gaol, and even down to the day of his trial; for he constantly told the same story in substance, commonly adding that the devil put him upon committing the fact. Upon this evidence, with some other circumstances tending to corroborate the confessions, he was convicted.
Upon this report of the chief justice, the judges, having taken time to consider of it, unanimously agreed, 1. That the declarations stated in the report were evidence proper to be left to the jury. 2. That, supposing the boy to have been guilty of this fact, there were so many circumstances stated in the report which were undoubtedly tokens of what Lord Hale calls a mischievous discretion, that he was certainly a proper subject for capital punishment, and ought to suffer; for it would be of very dangerous consequence to have it thought that children may commit such atrocious crimes with impunity. That there are many crimes of the most heinous dature, such as (in the present case) the murder of young children, poisoning parents or masters, burning houses, &c. which children are very capable of committing; and which they may in some circumstances be under strong temptations to commit; and therefore though the taking away the life of a boy of ten years old might savour of cruelty, yet, as the example of that boy's punishment might be a means of deterring other children from the like offences, and as the sparing the boy, merely on account of his age, would probably have a quite contrary tendency; in justice to the public, the law ought to take its course; unless there remained any doubt touching his guilt. In this general principle all the judges concurred: but two or three of them, out of great tenderness and caution, advised the chief justice to send another reprieve for the prisoner; suggesting that it might possibly appear, on farther inquiry, that the boy had taken this matter upon himself at the instigation of some person or other, who hoped by this artifice to screen the real offender from justice.
Accordingly the chief justice granted one or two more reprieves; and desired the justice of the peace who took the boy's examination, and also some other persons, in whose prudence he could confide, to make the strictest inquiry they could into the affair, and report to him. At length he, receiving no farther light, determined to send no more reprieves, and to leave the prisoner to the justice of the law at the expiration of the last; but, before the expiration of that reprieve, execution was respited till further order, by warrant from one of the secretaries of state : and at the summer assizes, 1757, the prisoner had the benefit of His Majesty's pardon, upon condition of his entering immediately into the sea service (W) It is said that an act making a new felony does not extend to How far sta
tutes extend an infant under the age of discretion, namely, fourteen years old;(x) to cases of and that general statutes which give corporal punishment are not infancy, to extend to infants; and that, therefore, if an infant be convicted in ravishment of ward, he shall not be imprisoned, though the (2) York's case, Fost. 70, et sequ. case, Plowd. Com. 465. a. And see (3) i Hale 706. Eyston and Stud's i Hale 21, 22. Bac. Ab. Infancy (H).
statute of Merton, c. 6. be general in that case. (y) But this must be understood, where the corporal punishment is, as it were, but collateral to the offence, and not the direct intention of the proceeding against the infant for his misdemeanour; in many cases of which kind the infant under the age of twenty-one shall be spared, though possibly the punishment be enacted by parliament.(2)
But where a fact is made felony or treason, it extends as well to infants, if above fourteen years, as to others. And this appears by several acts of parliament, as by 1 Jac. I. c. 2. of felony for marrying two wives, in which there is a special exception of marriages within the age of consent, which in females is twelve, in males fourteen years; so that if the marriage were above the age of consent, though within the age of twenty-one years, it is not exempted from the penalty. So by the statute 21 Hen. 8. c. 7., concerning felony by servants that embezzle their master's goods delivered to them, there is a special provision that it shall not extend to servants under the age of eighteen years, who certainly had been within the penalty, if above the age of discretion, namely, fourteen years, though under eighteen years, unless there had been a special provision to exclude them. And so by the 12 Anne, c. 7. (by which it is made felony without benefit of clergy to steal goods to the value of 40s. out of a house, though the house be not broken open) where apprentices who shall rob their masters are excepted
out of the act. (a) Of delaying In many cases of crimes committed by infants, the judges will execution
in prudence respite the execution in order to get a pardon : and it where an infant is convicted.
" is said that if an infant apparently wanting discretion be indicted
and found guilty of felony, the justices themselves may dismiss him without a pardon. (6) But this authority to dismiss him, must be understood of a reprieve before judgment; or of a case where the jury find the prisoner within the age of seven years, or not of suffi
cient discretion to judge between good and evil. (c) Of persons II. It has been considered, that there are four kinds of persons non compos who may be said to be non compos. 1. An idiot. 2. One made mentis.
non compos by sickness. 3. A lunatic. 4. One that is drunk.(d) But it should be observed, that every person at the age of discretion is presumed sane unless the contrary is proved : and if a lunatic has lucid intervals, the law presumes the offence of such person to have been committed in a lucid interval, unless it appears
to have been committed in the time of his distemper. (e) Idiots.
An idiot is a fool or madman from his nativity, and one who never has any lucid intervals : and such an one is described as a person that cannot number twenty, tell the days of the week, does not know his father or mother, his own age, &c.: but these are mentioned as instances only; for whether idiot or not is a question
(y) 1 Bac. Abr. Infancy (H). Plowd. an infant convicted by a jury, the judge 364. i Hale 21.
would take upon himself to dismiss (2) Bac. Abr. Infancy (H). I Hale him. It is submitted that the regular 21.
course would be to respite execution, (a) Bac. Abr. Infancy (H). Co. Lit. and recommend the prisoner for a 147. i Hale 21, 22. (6) 35 Hen. VI. Il and 19. .
(d) Co. Lit. 247. Beverley's case, (c) I Hale 27. I Hawk. P. C. c. 1. 4 Co. 124. 6. 8. And Qu. Whether in any case of (e). 1 Hale 33, 34. '
of fact for the jury. (e) One who is surdus et mutus à nativitate is in presumption of law an idiot, and the rather because he has no possibility to understand what is forbidden by law to be done, or under what penalties : but if it appear that he has the use of understanding, which many of that condition discover by signs, to a very great measure, then he may be tried, and suffer judgment and execution; though great caution should be used in such a proceeding. (f)
A person made non compos mentis by sickness, or, as it has been Non compos sometimes expressed, a person afflicted with dementia accidentalisme
identalis mentis from
sickness. vel adventitia, is excused in criminal cases from such acts as are committed while under the influence of his disorder. (g) Several causes have been assigned for this disorder; such as the distemper of the humours of the body; the violence of a disease, as fever or palsy; or the concussion or hurt of the brain ; and, as it is more or less violent, it is distinguishable in kind or degree, from a particular dementia, in respect of some particular matters, to a total alienation of the mind, or complete madness. (h)
A lunatic is one labouring also under a species of the dementia Lunatics. accidentalis vel adventitia, but distinguishable in this, that he is afflicted by his disorder only at certain periods and vicissitudes; having intervals of reason. Such a person during his frenzy is entitled to the same indulgence as to his acts, and stands in the same degree with one whose disorder is fixed and permanent. ) The name of lunacy was taken from the influence which the moon was supposed to have in all disorders of the brain ; a notion which has been exploded by the sounder philosophy of modern times.
With respect to a person non compos mentis from drunkenness, Persons drunk. a species of madness which has been termed dementia affectata, it is a settled rule, that if the drunkenness be voluntary, it cannot excuse a man from the commission of any crime, (k) but on the contrary must be considered as an aggravation of whatever he does
(e) Bac. Abr. Idiots, &c. (A.) Dy. right and wrong. In Steel's case, I 25. Moor, 4. pl. 12. Bro. Idiot I. F. Leach 451, a prisoner who could not N. B. 233.
hear, and could not be prevailed upon i Hale 34. And see the note to plead, was found mute by the visit(0) where it is said that according to ation of God, and then tried, found 43 Assis. pl. 30, and 8 Hen. IV. 2, if a guilty, and sentenced to be transprisoner stands mute, it shall be in ported. And in Jones's case, I Leach quired whether it be wilful, or by the 102. where the prisoner (who was inact of God; from whence Crompton dicted on 12 Anne, c. 7. for stealing infers that if it be by the act of God, in a dwelling house) on being put to the party shall not suffer. Crompt. the bar appeared to be deaf and dumb, Just. 29, a. But if one who is both and the jury found a verdict, “ Mute deaf and dumb, may discover by signs “ by the visitation of God;" after that he hath the use of understanding; which a woman was examined upon much more may one who is only her oath, to the fact of her being able dumb, and consequently such a one to make him understand what others may be guilty of felony ; sed quære said, wbich she said she could do by how he shall be arraigoed. It may be means of signs, such prisoner was arobserved, that from the humane exer raigned, tried, and convicted of the tions of many ingenious and able per simple larceny. sons, and from the extensive chari. (g) i Hale 30. 3 Bac. Abr. 526. table institutions for the instruction . (h) 1 Hale 30. of the deaf and dumb, many of those 04 Co. 195. Co. Lit.247. I Hale 31. upfortunate people have at the pre- (k) Co. Lit. 247. i Hale 32. 1. sent day a very perfect knowledge of Hawk. P. C. c. 1. s. 6.