But though above fourteen, criminal incapacity cannot be presumed on the mere pretence of nonage, children considerably under that age may be found _doli capaces_, and be tried, and even executed accordingly, whenever from peculiar evidence it shall appear that by precocity in vice or intellect they can clearly distinguish right from wrong, _malitia supplet ætatem_: thus _John Dean_ was executed under the age of nine for arson and murder; and _William York_, in more modern times, was tried and condemned for murder at ten.[92] Seven years of age, or the period of absolute infancy, is probably the limit within which actual crime or sin cannot be imputed morally or legally; (see _1 H. P. C._ _p._ 19; _1 Hawk. P. C._ _p._ 1; _1 Bl. Com._ _p._ 464); but the law of England does not appear to have fixed any determinate period;[93] _Alfred_ decreed that none should be punished capitally for theft under twelve years of age. _Athelstan_ enlarged the period till fifteen, (see _notes 1 H. P. C._ _p._ 12, 23); but the old standard of twelve appears to have prevailed from the time of _Hen. 1_; thus in the time of _Ed. 1_, _Adam de Arnhale_, æt. 12, was committed to the custody of the marshal for stealing nine shillings at night in the dwelling house; _postea habito respecto ad imprisonamentum, quod prædictus Adam habuit, & etiam ad teneram ætatem ejusdem Adæ, eo quod non nisi ætatis 12 annorum, qui talis ætatis 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_ [94]] 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 this peril, and the contamination of a gaol, the discretion of the judge may; and it is fortunate that, in London at least, public munificence, in this as in many other cases, has supplied the want of legislation: the Philanthropic and other similar societies afford a refuge and prospect of amendment for the infant culprit, to them therefore he should be committed.