Infants. 1. How far answerable for Crimes. II. Their Civil Incapacities. III. Their Civil Capacities. I. How far answerable for Crimes. 1; BY an infant or minor is meant any one who is under the age of Infant, who. twenty-one years. 1 Inst. 2. fourteen. It is said generally that those who are under a natural disability Committing a of distinguishing between good and evil, as infants under the age crime, under of fourteen years, which is called the age of discretion, are not punishable by any criminal prosecution whatsoever. But this must be understood with some allowance; for if it appear by the circumstances that an infant under the age of discretion could distinguish between good and evil, as if one of the age of nine or ten years kill another and hide the body, or make excuses, or hide himself, he may be convicted and condemned, and forfeit as much as if he were of full age. But in such case the judges will in prudence respite the execution in order to get a pardon; and it 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. And in general it must be left to the discretion of the judge, upon the circumstances of the case, how far an infant, under that age, is capax doli, or hath knowledge to discern betwixt good and evil. Hale's Sum. 43. 1 Haw. c. 1. § 8. 1 Hale, 18. Ĭ Russ. 4. The following is an important case as to the capability of an infant of ten years old to commit the crime of murder; and as to the expediency of visiting such an offender with capital punish ment. At Bury Summer Assizes, 1748, William York, a boy of ten years of age, was convicted before Ld. Ch. J. 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 were proper to execute him or not, upon the special circumstances of the case; which he reported to the judges as follows:- The boy and girl were parish children, but 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 Case of murder by a boy of ten years old. York's case, Fost. 70. Case of W. 1 Hale, 650 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 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 done so, he got water and washed himself as clean as he could. The boy was the next morning carried before a neighbouring justice, before whom he repeated his confession with all the circumstances he had related to the coroner and his jury. The justice very prudently deferred proceeding to a commitment, till 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 him, 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, 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 confession, 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 the fact, there were so many circumstances stated in the report which were undoubtedly tokens of what Lord Ch. J. Hale somewhere called a mischievous discretion, that he was certainly a proper object 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. 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, and the like, 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 may savour of cruelty, yet as the example of this boy's punishment may be a means of deterring other children from the like offences, and as the sparing this boy merely on account of his age will probably have a quite contrary tendency, in justice to the public, the law ought to take its course, unless there remaineth 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 did grant one or two more reprieves; and desired the justice 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 make report to him. At length he receiving no further 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, he had the benefit of his majesty's pardon, upon condition of his entering immediately into the sea service. But within seven years of age, there can be no guilt whatso- Under seven. ever of any capital offence; the infant may be chastised by his parents or tutors, but cannot be capitally punished, because he cannot be guilty; and if he be indicted for such an offence as is in its nature capital, he must be acquitted. 1 Hale, 19. 20. An infant under fourteen is presumed by law unable to commit Committing a a rape, and therefore it seems cannot be guilty of it; and though rape. in other felonies malitia supplet ætatem in some cases, yet it seems as to this fact the law presumes him impotent, as well as wanting discretion. 1 Hale, 630. An infant may be guilty of forcible entry, in respect of per- Forcible entry. sonal actual violence. 1 Haw. c. 64. 35. And the justices may fine him therefore; but yet it shall be good discretion in the justices of the peace to forbear the imprisonment of such infant. Dalt. c. 126. Because it is said, that he shall not be subject to corporal punishment, by force of the general words of any statute wherein he is not expressly named. 1 Haw. c. 64. § 35. An infant under the age of discretion cannot be an approver, Cannot be an because he cannot take the oath requisite in that case. 2 Haw. approver. c. 24. § 5. II. Their Civil Incapacities. R. v. Travers, 2 Str. 700. There seems to be no precise age fixed, at which infants are Phill. Ev. 16. excluded from being witnesses. At one time, indeed, their age was considered as the criterion of their competency; and it was a general rule, that none could be admitted under the age of nine years, very few under ten, which was in some measure denying them the protection of law against secret acts of violence. A more reasonable rule has been since adopted; and the admissi 1 East's P. C. 442. 1 Hale, 302. Case of W. turned up. face, cu Coro to de cryi th SC and reason they enterd, which is to be collected by the court.. - In Bra ting an infant of five years as agreed by all the judges, xamined on oath, if capable of vil: but they cannot be exThis is now the established as civil, and whether the prisoner for one of an inferior nature. not sufficiently to understand the 4th, judges have often thought it justice, to put off the trial of a priin the mean time should be pro secution that was coming on to be tried nding that the principal witness was an ncompetent to take an oath, postponed gassizes, and ordered the child to be ine by a clergyman in the principles of her are and obligation of an oath. At the next was put upon his trial, and the girl being on examination, to have a proper sense of the was sworn, and upon her testimony the pricted, and afterwards executed. Mr. J. Rooke the O. B. in 1795, in the case of Patrick Muracted for a rape on a child of seven years old, judge added, that upon a conference with the pon his return from the circuit, they unanimously what he had done. Vide 2 Bac. Abr. 157. (n.) dis too young to be sworn, it follows as a necessary that any account, which it may have given to others, to be admitted. On an indictment, therefore, for a cold five years old, where the child was not examined, account of what she had told her mother, about three der the transaction, was given in evidence by the mother, hery convicted the prisoner, principally, as was supposed, evidence: the judges, on a case reserved for their opihought the evidence clearly inadmissible, and the prisoner ccordingly pardoned. tant before twenty-one years of age shall not be sworn on u aquest. 7 & 8 W. c. 32. § 4. 1 Inst. 172. Aman at nine years of age may have dower; at twelve may seat to marriage; and at fourteen is of age of discretion, and choose a guardian. 1 Inst. 78. Ian is of age at twelve years to take the oath of allegiance the torn or leet; and at fourteen is of age of discretion, may Consent to marriage, and choose his guardian. 1 Inst. 78. At twenty-one, and not before, persons may bind themselves deed, and alien lands, goods, and chattels. 1 Inst. 171. hich ground infants may not enter into recognisance ace, or to be of the good behaviour, but their sure But an infant may bind himself to pay for his necessary meat, May contract drink, apparel, physic, and such like; and also for his good for necessaries. teaching or instruction, whereby he may profit himself afterwards; but if he bind himself in an obligation or other writing, with a penalty for the payment of any of these, that obligation shall not bind him. 1 Inst. 172. Neither will assumpsit lie against an infant on an account stated; for an infant is not competent to state an account. Trueman v. Hurst, 1 T. R. 40.; and Bartlett v. Emery, Ib. 40. n. a. And in Earle's case, 1 Salk. 387., it is said, that an infant may buy necessaries, but cannot borrow money to buy; for he may misapply the money, and therefore the law will not trust him, but at the peril of the lender, who must lay it out for him, or see it laid out. And it shall be only for necessaries, and not for matters of lux- 2 Atk. 35. ury or extravagance; and if, after he comes of age, he is prevailed on, by surprise or other undue means, to give security, yet a court of equity, on consideration of circumstances, will relieve. III. Their Civil Capacities. a benefice. Also other things of necessity shall bind him, as a present- May present to ation to a benefice; for otherwise the lapse shall incur against him. 1 Inst. 172. And infants seised of estates in trust, or by way of mortgage, may make conveyances thereof, as the courts of chancery or exchequer shall direct. 7 An. c. 19. 4 G. 3. c. 16. May convey in a court of equity. May surrender in a court of equity. And they may surrender leases in the courts of chancery or exchequer, in order to renew the same. 29 G. 2. c. 31. Also an infant hath, without consent of any other, capacity to purchase, for it is intended for his benefit; and at his full May purchase. age he may either agree thereunto and perfect it, or without any cause to be alleged, wave or disagree to the purchase; and so may his heirs after him, if he agree not thereunto after his full age. 1 Inst. 2.. The common law seems not to have determined precisely at May make a what age one may make a testament of a personal estate; it is will. generally allowed, that it may be made at the age of eighteen, and some say under, for the common law will not prohibit the spiritual court in such cases. 1 Inst. 89. 1 Hale, 17. The age of discretion is fourteen; and therefore it may seem that one may make a testament or personal estate at that age. A person is of age to be executor at seventeen; and an ad- May be an ministration of any one during the minority of an infant ceaseth executor. when the infant comes to that age. 5 Rep. Pigot's Case. 1 Hale, 17. his children. By 12 C. 2. c. 24. f 8. Any person having child or children under May bequeath twenty-one years of age, and not married, may by deed or will the tuition of attested by two witnesses, dispose of the custody and tuition of such child or children, until they shall be of the age of twentyone, or for a lesser time; and this, whether such parent be within or above the age of twenty-one. An infant cannot answer but by guardian; but he may sue either by his next friend or by guardian. 3 Salk. 196. May sue by prochein amy. |