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 so done, 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 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 be fore the justice; and of many declarations to the same purpose, 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 confession, he was convicted. Upon this report of the chief justice, the judges having taken time to consider of it, una. pimously agreed, 1. That the declarations stated in the report were evidence proper to be left to the jury. 2. That supposing the boy to be guilty of this fact, there are so many circumstances stated in the report, which are undoubtedly tokens of what lord chief justice Hale somewhere calleth mischievous discretion, that he is 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 the 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 other person, who hoped by the 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. Fost. 70. 3. But within seven years of age there can be no guilt whatsoever 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 H H. 19, 20. 4. An infant under fourteen is presumed by law unable to commit a rape, and therefore it seems cannot be guilty of it; and though in other felonies malitia supplet ætaten in some cases, yet it seems as to this fact the law presumes him impotent, as well as wanting discretion. 1 H. H. 630. 5. An infant may be guilty of forcible entry, in respect of personal actual violence. (Haw. 147.) And the justices may fine him therefor. 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. 147. 6. But if one who wants discretion commit a trespass, against the person or possession of another, he shall nevertheless be compelled in a civil action to give satisfaction for the damages. 1 Haw. 2. 1 H. H. 15, 16. 7. An infant may bring an appeal, although it take from the defendant the benefit of waging battle; but he must prosecute such appeal by a guardian. 2 Haw, 161, 162. An appeal likewise may be brought against him. 2 Haw. 168. 8. An infant under the age of discretion cannot be an approver; because he cannot take the oath requisite in that case. 2 Haw. 205. 9. In case of a rape committed upon a child of twelve years old, such child may be sworn as evidence; yea, if she be under that age, if it appear to the court that she knows and considers the obligation of an oath, she may be sworn. And in case of evidence against witches, an infant of nine years old was sworn. 1 H. H. 634. Dalt, 378. 10. An infant before twenty-one years of age shall not be sworn in an inquest. 1 Inst. 78. 1 Rev. Code, p. 101, sect. 12. 11. A woman at nine years of age may have dower; at twelve may consent to marriage; and at fourteen is of age of discretion, and may choose a guardian. Inst. 78. 12. A man is of age at twelve years to take the oath of allegiance; and at fourteen is of age of discretion, may consent to marriage, and choose his guardian. 1 Inst. 171. 13. At twenty-one, and not before, persons may bind themselves by any deed, and alien lands, goods and chattels. 1 Inst. 171. No person under eighteen years shall be capable of disposing of his chattels by will.' 1 Rev. Code, p. 161, sect. 4. 14. Infants may not enter into recognizance to keep the peace, or to be of good behaviour, but their sureties only. 15. But an infant may bind himself to pay for his necessary meat, drink, apparel. physic, and such like; and also for his good teaching or instruction, whereby he may profit himself afterwards; but if he binds 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. And in Earl's case, 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 day it out for him, or see it laid out. See further on this subject, Fonblanque, B. 1. ch. 2, sect. 4, and notes. 16. Also, an infant hath, without consent of any other, capacity to purchase, for it is intended for his benefit; and at his full age, he may either agree thereto, and perfect it, or, without any cause to be alledged, 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. 17. The common law seems not to have determined precisely at what age one may make a testament of a personal estate; it is generally allowed that it may be made at the age of eighteen, and some say under. 1 Inst. 89. 1 H. H. 17. 18. A person is of age to be an executor at seventeen; and an administrator of any one during the minority of an infant ceaseth when the infant comes to that age. 5 Co. Pigot's case. 1 H. H. 17. 19. An infant cannot answer but by guardian; but he may sue either by his next friend or by guardian. 3 Salk. 196. 20. If an infant of the age of seventeen years release a debt, this is void; but if an infant make the debtor his executor, this is a good release in law of the action. 1 Inst. 264. 21. But now the appointment of a debtor an executor shall in no case be an extinguishment of the debt, unless it be so directed in the will' Rev. Code, p. 166. sect. 50. 22. The guardianship of an infant may be devised, or transferred by deed, by his father. See 1 Rev. Code, p. 172, sect. 1. 23. Infants seized of estates in trust, or by way of mortgage, may make conveyances thereof, as the high court of chancery shall direct. 1 Rev. Code, p. 173, sect. 13. 24. And they may surrender leases by order of such court, in order to renew the same. 1 Rev. Code, p. 173, sect. 14. 25. Debts due infants from their guardians are to be paid by the executors, &c. of such guardian, in preference to all others. Rev. Code, 167. The legal capacity of infants to commit crimes, when of certain ages, is thus summarily exhibited in a note to 1 Haw. (7th edit. by Leach) p. 1. On the attainment of fourteen years of age, the criminal actions of infants are subject to the same modes of construction as those of the rest of society; for the law presumes the human mind has acquired, at this period, a complete sense of right and wrong. (Dr. & St. c. 26. Co. Lit. 79, 171, 247.) During the interval between the age of fourteen years and that of seven, the mind is prima facie presumed to be unacquainted with guilt. And these presumptions entertained in favour of innocence accumulate in an inverse proportion with the decrease and tenderness of the offender's years. (1 Hale 25, 27.) From this 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. (Cro. Jac 466. 1 Hale 24. Fost. 70.) 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 may be given against him. (1 Hale 20, 25, 434. Cro. Car. 133. 4 Bl. Com. 23. Fost. 71. For malitia supplet ætatem, and the capacity of contracting guilt, is measured more by the apparent strength of the offender's understanding than by years and days. (Bro. Cor. 47. 4 Bl Com. 23.) But within the age of seven years an infant cannot be punished for any capital offence, whatever circumstances of a mischievous discretion may appear; for ex præsumptione juris he cannot have discretion; and against this presumption no averment shall be admitted. (Mirr. c. 4, sect 16. Plowd. 19. 1 Hale 20. Fost. 349. 4 Bl. Com. 23. Cowp. 222, 223.) Therefore, if a child under this age steal the goods or fire the house of another, he cannot be punished for either the larceny or the arson. 1 Hale 19, 514. Fost 13, 349. DENCE.' For more concerning infants, see titles APPRENTICES EVI INFORMATION. I. OF INFORMATION IN GENERAL. INFORMATIONS are of two kinds. First, such as are merely at the suit of the commonwealth; and secondly, such as are partly the suit of the commonwealth and partly the suit of the party, which are commonly called informations qui tam, from these words in the information, when the proceedings were in Latin, qui tam pro Domino Rege quam pro se ipso. 2 Haw. 259. 2. Of near affinity to an information qui tam is an action upon a statute; which is either a private action, that is, when an action is given upon a statute to the commonwealth, and to the party grieved only; or a popular action, that is, when the action is given to the commonwealth, or to any one who will sue for the commonwealth and himself. Wood. B. 4. ch. 4. 3. But if the commonwealth commenceth suit before the informer, the commonwealth shall have the whole forfeiture, because in such case it also is the informer; and it may, before the informer begins his suit, release the penalty to the offender, and bar all others. But if, after a popular action is brought by the informer, the commonwealth's attorney will enter ulterius non vult prosequi, the informer may prosecute for his part. Ibid. 4. Where a matter concerns the public government, and no parti cular person is entitled to an action, there an information will lie. 1 Salk. 374. Case of the SURGEON'S COMPANY. 5. An information lies, at the common law, for a variety of crimes less than capital, Batteries, Cheats, Perjuries, Riots, Extortions, Nuisances, Contempts, and such like; and also it lies in very many cases by statute, wherein the offender is liable to a fine, or other penalty. 2 Hawk. 260. 6. And in general it seems, that of common right an information at the suit of the commonwealth, or an action in the nature thereof, may be brought for offences against statutes, whether they be mentioned by such statutes or not, unless other methods of proceeding be particularly appointed, by which all others are impliedly excluded. Ibid. 7. But an information or action qui tam will not lie on any statute, which prohibits a thing as being an immediate offence against the public good in general, under a certain penalty, unless the whole, or part of such penalty, be expressly given to him who will sue for it; because otherwise it goes to the commonwealth, and nothing can be demanded by the party. But where such statute gives any part of such penalty to him who will sue for it by action or information, any one may bring such action or information, and lay his demand, as well for the commonwealth as for himself. 2 Hawk. 256. 8. Also, where a statute prohibits or commands a thing, the doing or omission whereof is an immediate danger to the party, and also highly concerns the peace, safety, or good government of the public, it seems to be the general opinion that the party grieved may bring his action qui tam on such statute. 2 Hawk. 265 9. If an offence prohibited by a penal statute be also an offence at common law, the prosecution of it as an offence at common law is no way restrained hereby. 2 Hawk. 272. 10. Iftwo informations be exhibited on the same day, for the same offence, they mutually abate one another. 2 Hawk. 275. 11. Actions popular, prosecuted by collusion, shall be no bar to those that are prosecuted with good faith. 1 Rev. Code, p. 32. sect. 1. And compounding such actions, or dismissing them without leave of the court, where the whole penalty is not to the use of the informer, subjects the prosecutor to half the penalty to which the defendant was liable. Ibid. sect. 2. |