1.(q) Britton, cap. 29. in fine, Calvin's case, 7 Co. Rep. 6. b. So. that at that age, and not before, he was taken notice of by the law to be under the obligation of an oath, and consequently capable of discretion.

3. The ordinary process against capital offenders was and is by Capias and Exigent, and Utlary thereupon; but against an infant under twelve, process of utlary in cases of indictment was not awardable, and if awarded, it was error; but if above that age, that process was awardable; and Bract. Lib. III.(r) cap. 11. sect. 4 & 5. gives the reason, "Minor vero, qui infra ætatem 12 annorum fuerit utlegari non debet, quia ante talem ætatem non est sub lege aliquâ nec in decenna ;" and ibidem cap. 10 sect. 1, he mentions an old law of king Edward,(s) "Omnis, qui ætatis 12 annorum fuerit, facere debet sacramentum in visu franciplegii, quod nec latro vult esse, nec latroni consentire;" and Stamf. Lib. I. cap. [24] 19. cites out of a book of Bracton, De Visu Franci plegii, "Quod quilibet duodecim annorum potest feloniæ judicium sustinere." which implies also that within that age, regularly at least, he could not be a felon.

4. Again, T. 32. E. 1. Rot. 32. "Eboracum, coram rege. Adam filius Adæ de Arnhale captus noctanter in domo Johannis Somere coram rege ductus cognovit, quod furtive cepit, &c. 9s. per preceptum & missionem Richardi Short :" Richard Short had his clergy, "Et prædictus Adam commissus fuit custodia mariscalli custodiend', quia infra ætatem; postea habito respectu ad imprisonamentum, quod prædictus Adam habuit, & etiam ad teneram ætatem ejusdem Adæ, eo quod non est nisi ætatis 12 annorum, qui talis ætatis judicium ferre non potest, ideo de gratiâ regis deliberetur, &c." Upon this record these things are observable, viz. 1. The court recorded his confession; but regularly that ought not to be, for if an infant under the age of twenty-one shall confess an indictment, the court in justice ought not to record the confession, but put him to plead not guilty, or at least ought also to have inquired by an inquest of office of the truth and circumstances of the fact. 2. That here he was twelve years old, and yet judgment spared, and the reason given, Qui talis ætatis judicium ferre non potest. Yet 3. There is somewhat still of gratia regis interposed, as it seems, in respect he was past the old standard of twelve years.

II. But now let us come to the Common law as it stood in after

(q) This seems to be a mistake, for cap. 11. sect. 4. for the oath mentioned in cap. 1. was to be taken by knights and others of the age of fifteen years and upwards. (r) De Corona.

(8) There is no such law extant among those of king Edward, but the law here quoted is a law of Cnute, Leg. Cnuti, l. 19. which is in these words, Volumus ut quilibet homo 12 annos natus jusjurandum præstet se nolle furem esse neque furi consenta. neam, which oath is to the same purpose with that mentioned by Bracton, Lib. iii. de corona, cap. 1. to be taken at the age of fifteen; and though there be a difference as to the age, yet probably it is the same oath, for it is very easy and natural to mistake xii for xv. See the statute of Marlbridge, cap. 10 & 25. and lord Coke's comment thereon, 2 Instit. 147. where he takes notice that the old books are misprinted. See also 2 Instit. 72. Mirror, cap. 1. §. 3. Britton, cap. 12.

times; for in process of time, especially in and after the reign of king Edward III. the Common law received a greater perfection, not by the change of the Common law, as some have thought, for that could not be but by act of parliament; but men grew to greater learning, judgment and experience, and rectified the mistakes of for[25] mer ages and judgments, and the law in relation to infants and their punishments for capital offences was and to this.

day is as followeth.

1. It is clear that an infant above fourteen and under twenty-one is equally subject to capital punishments, as well as others of full age; for it is præsumptio juris, that after fourteen years they are doli capaces, and can discern between good and evil; and if the law should not animadvert upon such offenders by reason of their nonage, the kingdom would come to confusion. Experience makes us know that every day murders, bloodsheds, burglaries, larcenies, burning of houses, rapes, clipping and counterfeiting of money, are committed by youths above fourteen and under twenty-one; and if they should have impunity by the privilege of such their minority, no man's life or estate could be safe.(t) In my remembrance at Thetford a young lad of sixteen years old was convict for successive wilful burning of three dwelling houses, and in the last of them burning a child to death, and yet had carried the matter so subtilly, that by a false accusation of another person for burning the first house an innocent person was brought in danger, if it had not been strangely discovered: he had judgment to die, and was accordingly executed.(u)

Fourteen years of age therefore is the common standard, at which age both males and females are by the law obnoxious to capital punishments for offences committed by them at any time after that age; and with this agrees Fitz. N. B. 202. b.(x) Co. Litt. § 405.(y) Vide Mr. Dalton's Justice of Peace, cap. 95. and 104.(z)

2. An infant under the age of fourteen years and above [26] the age of twelve years is not prima facie presumed to be doli capax, and therefore regularly for a capital offence committed under fourteen years he is not to be convicted or have judgment as a felon, but may be found not guilty.[2]

(t) Our author's argument concludes very strongly against their escaping with impunity, but loses much of its force when urged in behalf of capital punishments, for there is no necessity that if they be not capitally punished they must therefore go unpunished; so that whatever severity may be needful in cases of murders and acts of violence, yet in the common instances of larceny and stealing, some other punishment might be found, which might leave room for the reformation of young offenders.

(u) At Abingdon assizes, Feb. 23, 1629, before Whitlock justice, one John Dean, an infant, between eight and nine years, was indicted, arraigned, and found guilty of burn. ing two barns in the town of Windsor; and it appearing upon examination that he had malice, revenge, craft, and cunning, he had judgment to be hanged, and was hanged accordingly. MS. Report.

(x) N. Edit. p. 450.

(y) p. 247. b.

(z) The first edition, but in the last edition, cap. 147 and 157.

[2] "By the ancient Saxon law, the age of twelve years was established for the age of possible discretion when first the understanding might open; and from thence until the offender was fourteen, it was atas pubertati proxima, in which he might or might

But though prima facie and in common presumption this be true, yet if it appear to the court and jury that he was doli capax, and could discern between good and evil at the time of the offence committed, he may be convicted and undergo judgment and execution

not be guilty of a crime, according to his natural capacity or incapacity. This was the dubious stage of discretion; but under twelve it was held that he could not be guilty in will, neither after fourteen could be supposed to be innocent, of any capital crime which he in fact committed. By the law as it now stands, and has stood at least since the time of Edward the Third, the capacity of doing ill, or contracting guilt, is not so much mea. sured by years and days, as by the strength of the delinquent's understanding and judgment. For one lad of eleven years old may have as much cunning as another of fourteen, and in these cases our maxim is, malitia supplet ætatem.' Under seven years of age, indeed, an infant cannot be guilty of felony, for then a felonious discretion is almost an impossibility in nature; but at eight years old he may be guilty of felony. Also under fourteen, though an infant, shall be prima facie adjudged to be doli incapax; yet if it appear to the court and jury that he was doli capax, and could discern between good and evil, he may be convicted and suffer death." 4 Stephen's Comm. 75, 76. 4 Black. Comm. 23. 2 Stephen's Comm. 331, 332. Lond. Ed.

The case cited by Blackstone from Foster, 70, is YORKE's case, and is deemed an important one by Sir William Russell, (1 Russ. on Crimes, 4.) It was this. At Bury Summer Assizes, 1748, William Yorke, a boy of ten 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; on which he reported to the judges at Sergeant's Inn in Michaelmas Term following. 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 mur. der 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 had 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 stiffly 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 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. Ac. cordingly 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 him, he was brought a second time before the justice, and then he repeated his former confession, upon which he was committed to jail. 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

of death, though he hath not attained annum pubertatis, viz. fourteen years; though according to the nature of the offence and circumstances of the case the judge may or may not in discretion reprieve him before or after judgment, in order to the obtaining the

which the boy made to other people after he came to jail, 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 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 nature, 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 further 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 jus. tice 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 pri soner had the benefit of His Majesty's pardon, upon condition of his entering imme diately into the sea service. Yorke's Case. Fost. R. 70.

Two remarkable cases of commission of the crime of murder by boys under fourteen years of age, have occurred in New Jersey. In April, 1818, Aaron, (a coloured boy,) was tried for the murder of a child, Stephen Conelly, little more than two years old, by throwing him over the curb into a well. The whole material testimony in the case was a confession made by the boy. The Chief Justice, (Kirkpatrick,) in the course of his opinion, holds the following language: "With respect to the liability of infants to punishment, and to the giving of their confessions in evidence against them, much might be said, and ought to be said with great caution. It is perfectly settled, that an infant within the age of seven years cannot be punished for any capital offence, whatever cir. cumstances of mischievous intention may be proved against him, for by the presumption of law, he cannot have discretion to discern between good and evil, and against this presumption no averment can be admitted. It is perfectly settled also, that between the age of seven and the age of fourteen years, the infant shall be presumed to be incapable of committing crime upon the same principle, the presumption being very strong at seven, and decreasing with the progress of his years; but then this presumption, in this case, may be encountered by proof; and if it shall appear by strong and irresistible evidence that he had sufficient discernment to distinguish good from evil, to comprehend the nature and consequences of his acts, he may be convicted and have judgment of death." The State v. Aaron, 1 South. R. 231. 238. 247. Mr. Justice Southard, in the same case, holds much the same language. "The distinctions which have been taken in the books, as to age, when crimes may be committed and the criminal punished, are in no inconsiderable degree arbitrary. The great subject of inquiry in all cases ought to be, the legal capacity of the prisoner: and this is found in some much earlier than

king's pardon. 12 Ass. 30. Corone 118 & 170. Alice de Waldborough of the age of thirteen years was burnt by judgment for killing her mistress; and it is there said, that by the ancient law none shall be hanged within age which is intended the age of discretion, viz.

others. The real value of the distinctions, is, to fix the party, upon whom this capacity lies. There is, indeed, an age so tender, that the nature and consequences of acts cannot be comprehended, and every uncorrupted feeling of the heart, as well as every moral and legal principle forbids punishment. But after we pass this age and progress towards maturity, there have been periods settled, which ascertain the presumption of law, as to the existence of this capacity. If under fourteen, especially under twelve years, the law presumes that it does not exist, and if the State seek to punish, it must conclusively estab lish it. If above the age of fourteen, the law presumes its existence, and if the accused would seek to avoid punishment, he must overcome that presumption by sufficient evidence. But wherever the capacity is established, either by this presumption of law or the testimony of witnesses, punishment always follows the infraction of the law. If the intelligence to apprehend the consequences of acts; to reason upon duty, to distinguish between right and wrong; if the consciousness of guilt and innocence be clearly manifested, then this capacity is shown; in the language of the books, the accused is capaz doli, and "as a rational and moral agent must abide the results of his own conduct." Id. 245, 246. The prisoner, in this case, was ten years and ten months old. From the printed report it only appears that a new trial was granted; but the Editor has been informed by one of the counsel for the defendant, that the prisoner was acquitted by the jury on the second trial.

In 1828, James Guild, a coloured boy, of the age of twelve years and five months, was indicted for the murder of Catharine Beukes, and found guilty. On a motion for a new trial made to the Court of Oyer and Terminer, the Supreme Court in an advisory opinion, held themselves bound to advise the Court of Oyer and Terminer not to grant a new trial, but to proceed to discharge their duty by pronouncing the sentence of the law on the crime of murder. After an elaborate examination of the authorities, the then Chief Justice (Ewing,) re-iterated the opinions of Chief Justice Kirkpatrick, and Mr. Justice Southard, in The State v. Aaron, cited supra. "The age of the pri soner was earnestly pressed on our consideration by his counsel, who strenuously insisted he was too young to be exposed to punishment on such evidence, (his own confession.) At the perpetration of the offence he was aged twelve years and somewhat more than five months. The sound, sensible, and legal rule on this head is, in our opinion, judiciously as well as lucidly stated by Justice Southard in the case of Aaron, (supra.) In Leach's edition of Hawkins, B. I. c. 1, page 1, in note, it is said, "from the supposed imbecility of mind, the protective humanity of the law, will not, without anxious circumspection, permit an infant to be convicted on his own confession. Yet if it appear by strong and pregnant evidence and circumstances, that he was perfectly conscious of the nature and malignity of the crime, the verdict of a jury may find him guilty, and judgment of death be given against him." The State v. Guild, 5 Halst, R. 189. 1 Greenl. on Ev. § 217. 219. 221. 222.223.

If a child more than seven and under fourteen years of age, is indicted for felony, it will be left to the jury to say whether the offence was committed by the prisoner, and, if so, whether at the time of the offence, the prisoner had a guilty knowledge that he or she was doing wrong. The presumption of law is, that a child of that age has not such guilty knowledge, unless the contrary be proved by the evidence. Rex v. Owen, 4 Carr. & Pay. R. 236, per Littledale, J. See Rex v Groomridge, 7 Carr. & Pay. R. 582, per Gaselee, J. Best on Presump. 22, citing a MS. Report of the S. C. 2 M. C. C. R. 122. S. C. 1 Greenl. on Ex. § 28. The People v. Davis, 1 Wheeler's Crim. Cas. 230. The People v. Teller, 1 Id. 231, & note. Com. v. Lanigan, 2 Boston Law Rep. 49, per Thatcher, J. Wharton's Am. Crim. Law, 17. 19. Case of Moses Chapman Elliot, 4 Boston Law Rep. 329. Com. v. French, Thatcher's Crim. Cas. 163. Burn's Just. tit. Children, 29, ed. by Chitty & Bere. Com. v. Keagy, 1 Ashmead R. 256, per King, Pres. Ward v. The Com. 3 Leigh. R. 743.

In Massachusetts it has been decided that an infant under the age of fourteen years, may be indicted for an assault with intent to commit a rape. Commonwealth v. Green, 2 Pick. 380. This case conflicts with Reg. v. Phillips, 8 Car. & P. 736, in which it was