have prevailed from the time of Hen. 1; thus in the time of Ed. 1, Adam de Arnhale, æt. I2, was committed to the custody of the marshal for stealing nine shillings at night in the dwelling house; postea habito respecto ad imprisonamentum, quod prœdictus Adam habuit, & etiam ad teneram œtatem ejusdem Adœ, eo quod non nisi œtatis 12 annorum, qui talis œtatis judicium ferre non potest, ideo de gratia regis deliberetur, 1 P. C. 24; but he was spared, as Sir M. Hale says, de gratia regis, in respect that he was passed the old standard of twelve years.
If an infant clearly under seven years of age be indicted, the case ought not to go to the jury; but the prisoner should be discharged by the court; for "he cannot be guilty of felony, whatever circumstances of discretion may appear; for ex presumptione juris he cannot have discretion, and no averment shall be received against that presumption;" (1 H. P. C. p. 28) but if it be not apparent that he is under seven, and he have sufficient discretion, then, as in the case mentioned [note [1]]?] the issue may go to the jury; and with their verdict they may find, according to the evidence, that he was under seven years of age; and the court may then discharge him, for it was no felony. 1 H. P. C. 27. Also if the prisoner be above seven, and under twelve years of age, unless there be apparent proof of capacity; but it is safer for the court to discharge him, for his trial can answer no useful purpose; and if he once be a felon convict by the verdict of a jury, though subsequently pardoned, the circumstance will probably give a stamp to his character which is never likely to be effaced. Therefore if the humanity of magistrates and prosecutors does not previously interpose to save children from
- ↑ See preceding Note.
