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acting in pro- of or charged with the commission of any of the offences specified in this secution of the act, to institute and carry on a prosecution of such bankrupt for such fiat.

offence, and to order that the costs and expenses to be incurred in such prosecution shall be paid out of the estate and effects of the said bankrupt, and such assignees shall thereupon institute and carry on such prosecution; and in case the said assignees shall refuse or neglect to institute and carry on to conviction such prosecution, having no lawful or reasonable impediment made known to and allowed by the said Court, the said Court may order the same to be instituted and carried on either by the official assignee alone, or by the creditors making such request as aforesaid, as the said Court may think fit.”

6 & 7 VICT. c. 12.

An Act for the more convenient holding of Coroners' Inquests.

[11th April, 1813.) WHEREAS it often happens that it is unknown where persons lying dead have come by their deaths, and also that such persons may die in other places than those in which the cause of death happened : Be it enacted by the Queen's most excellent Majesty, hy and with the advice and con

sent of the Lords Spiritual and Temporal, and Commons, in this present Coroner only Parliament assembled, and by the authority of the same, That the coroner within whose only within whose jurisdiction the body of any person upon whose death jurisdiction the an inquest ought to be holden shall be lying dead shall hold the inquest, dead shall hold notwithstanding that the cause of death did not arise within the juristhe inquest.

diction of such coroner; and in the case of any body found dead in the sca, or any creek, river, or navigable canal within the flowing of the sea, where there shall be no deputy coroner for the jurisdiction of the Admiralty of England, the inquest shall be holden only by the coroner having jurisdiction in the place where the body shall be first brought

to land. Provision for 2. And be it enacted, That for the purpose of holding coroners' inquests detached parts every detached part of a county, riding, or division shall be deemed to of counties.

be within that county, riding, or division by which it is wholly surrounded, or, where it is partly surrounded by two or more counties, ridings, or divisions, within that one with which it has the longest com

mon boundary. Parties may be

3. And be it declared and enacted, That if a verdict of murder or tried on

manslaughter, or as accessory before the fact to any murder, shall be verdicts of

found by the jury at any such inquest, against any person or persons, the murder or manslaughter,

coroner holding the said inquest, and the justices of oyer and terminer and gaol delivery for the county, city, district, or place in which such inquest shall be holden, and all other persons, shall have the same powers respectively for the commitment, trial, and execution of the sentence of the person or persons so charged as they now by law possess with regard to the commitment, trial, and execution of the sentence upon any person or persons committed and tried within the jurisdiction

where the death happened. Deodands may

4. And be it declared and enacted, That if a verdict of accidental be levied on death shall be found by the jury at any such inquest, the coroner and verdicts.

jury, and the sheriff and Court of Exchequer, and all other persons whosoever, shall have the same powers respectively with regard to the finding, returning, and levying of deodands as they now possess in cases where the death and the cause of death happened within the same

jurisdiction. Act may be 5. And be it enacted, That this act may be amended or repealed by amended or

any act to be passed in this session of Parliament. repealed.

A

TREATISE

ON

Crimes and Misdemeanors.

BOOK THE FIRST.

OF PERSONS CAPABLE OF COMMITTING CRIMES,
OF PRINCIPALS AND ACCESSORIES, AND

OF INDICTABLE OFFENCES.

CHAPTER THE FIRST.

OF PERSONS CAPABLE OF COMMITTING CRIMES.

It is a general rule that no person shall be excused from punishment for disobedience to the laws of the country, unless he be expressly defined and exempted by the laws themselves. (a) The inquiry, therefore, as to those who are capable of committing crimes, will best be disposed of by considering the several pleas and excuses which

may be urged on behalf of a person who has committed a forbidden act, as grounds of exemption from punishment.

Those pleas and excuses must be founded upon the want or de- Want or defect fect of will in the party by whom the act has been committed. For of will. without the consent of the will, human actions cannot be considered as culpable; nor where there is no will to commit an offence, is there any just reason why a party should incur the penalties of a law made for the punishment of crimes and offences. (6) The cases of want or defect of will seem to be reducible to four heads :- 1. Infancy. II. Non compos mentis. III. Subjection to the power

of others. IV. Ignorance.

I. The full age of man or woman by the law of England is twenty- Infants comone years: (c) under which age a person is termed an infant, and mitting misde is exempted from punishment in some cases of misdemeanors and offences that are not capital. (d) But the nature of the offence will

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meanors.

(a) 4 Bla. Com. 20.
lbi I Hale, 14.
le) It is the full age of male or female

according to common speech. Lit. s. 101.
259.

(d) I Hale, 20,

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Infants committing capital crimes.

make differences which should be observed. Thus, if it be any no-
torious breach of the peace, as a riot, battery, or the like, an infant
above the age of fourteen is equally liable to suffer as a person of the
full
age

of twenty-one; (e) and if an infant judicially perjure himself in point of age, or otherwise, he shall be punished for the perjury; and he may be indicted for cheating with false dice, &c. : (f) but if the offence charged by the indictment be a mere non-feazance (unless it be of such a thing as the party be bound to by reason of tenure or the like, as to repair a bridge, &c., (g), there, in some cases, he shall be privileged by his non-age, if under twenty-one, though above fourteen years; because laches in such a case shall not be imputed to him. (h)

It is said that if an infant of the age of eighteen years be convicted of a disseisin with force, yet he shall not be imprisoned; (1) and the law is said to be, that though an infant at the age of eighteen or even fourteen, by his own acts may be guilty of a forcible entry, and may be fined for the same, yet he cannot be imprisoned, because his infancy is an excuse by reason of his indiscretion; and it is not particularly mentioned in the statute against forcible entries, that he shall be committed for such fine. (j) An infant cannot, however, be guilty of a forcible entry or disseisin by barely commanding one, or by assenting to one to his use; because every command or assent of this kind by a person under such incapacity is void: but an actual entry by an infant into another's freehold gains the possession and makes him a disseisor. (K)

With regard to capital crimes the law is more minute and circumspect; distinguishing with greater nicety the several degrees of age and discretion : though the capacity of doing ill or contracting guilt is not so much measured by years and days as by the strength of the delinquent's understanding and judgment. (I) 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 presumptione juris such an infant cannot have discretion; and against this presumption no averment shall be admitted. (m)

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 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 prima 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

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(el 4 Bla. Com. 23. i Hale, 20. Co. (k) Bac. Abr. Inf. (H.) Co. Lit. 357. Lit. 247 b.

1 Hawk. P. C. c. 64, s. 35. (S) Bac. Abr. Inf. (H.) Sid. 258. (1) 4 Bla Com. 23.

(9) 2 Inst, 703, Rex v. Sutton, 3 Ad. (m) 1 Hale, 27, 28. | Hawk. c. 1, & E. 597, post, Bridges.

s. 1, note (1). 4 Bla. Com. 23. A par(h) 1 Hale, 20. Bac. Abr. Inf. (H.) don was granted to an infant within the (i) 1 Hale, 21.

age of seven years, who was indicted for (j) Bac. Abr. Inf. (H.) Dalt. 422. Co. homicide; the jury having found that he

And see 1 Hawk. P. C. c. 64, did the fact before he was seven years old. s. 35, that the infant ought not to be im- i Hale, 27, (edit. 1800) note (e). prisoned because he shall not be subject to (n) Dr, and Stu. c. 26. Co. Lit. 79, corporal punishment by force of the general 171, 247. Dalt. 476, 505. I Hale, 25. words of any statute wherein he is not ex. Bac. Abr. Inf. A. & H. pressly named.

Lit. 357.

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 hanged; upon the ground that it appeared by his hiding that he could discern between good and evil; and militia supplet ætatem. (s) And a girl of thirteen was burnt, for killing her mistress. (t) Whenever a person under the age of fourteen is charged with committing a felony, the proper course is to leave the case to the jury to say whether, at the time of committing the offence, such person had guilty knowledge that he was doing wrong. (n)

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 he cannot be guilty of it; (u) 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. (v)

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 years Case of murder of age, was convicted, before Lord Chief Justice Willes, for the by a boy of ten murder of a girl of about five years of age, and received sentence of years old. death; but the Chief Justice, out of regard to the tender years of the prisoner, respited execution till he should have an opportunity

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(0) 1 Hale, 25, 27. 4 Bla. Com. 23.
The civil law, as to capital punishments,
distinguished the ages into four ranks :
1. Ætas pubertatis plena, which is eighteen
years. 2. Ætas pubertatis, or pubertas ge-
nerally, which is fourteen years, at which
tane persons were likewise presumed to be
doti capaces. 3. Ætas pubertati prorima ;
but in this the Roman lawyers were divided,
some assigning it to ten years and a half,
others to eleven; before which the party
was not presumed to be doli capar. 4. In-
fantin, which lasts till seven years, within
which age there can be no guilt of a capital
ofence. i Hale, 17-19.

!p) Dalt. Just. c. 147.
19) Dean's case, 1 Hale, 25, note (»).

(r) 1 Hale, 27. F. Corone, 57. B. Corone, 133.

(s) Spigurnal's case, 1 Hale, 26. Fitz. Rep. Corone, 118.

(t) Alice de Waldborough's case, 1 Hale, 26.

(n) Rex o. Owen, 4 C. & P. 236, Littledale, J.

(u) Rex v. Groombridge, 7 C. & P. 582, Gaselee, J., after consulting Lord Abinger, C. B., as to whether the words “every person" in the 9 Geo. 4, c. 31, s. 16, altered the former law. So an infant cannot be guilty of an assault with intent to commit a rape. Rex v. Eldershaw, 3 C. & P. 396, Vaughan, J.

(v) I Hale, 630,

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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 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 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 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 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 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 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.

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