91. Giles East, a boy under 17 years of age, was convicted at the Kingston Assizes of carnally knowing a girl of 9 years of age, (stat. 18 Eliz.) and was executed Jan. 20, 1823.

92. At Bury assizes 1748, William York, a boy of ten years of age, was convicted before Lord Chief Justice 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 was proper to execute him or not, upon the special circumstances of the case, which he reported to the judges at Serjeant’s-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 cloaths, 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 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.

Upon this report of the Chief-Justice, the judges, having taken time to consider it, unanimously agreed,

1st, That the declarations stated in the report were evidence proper to be left to the jury.

2dly, That supposing the boy to have been guilty of this fact, there are so many circumstances stated in the report, which are undoubtedly tokens of what my Lord Chief-Justice Hale somewhere calleth a mischievous discretion, that he is certainly a proper subject 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, &c. 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 farther 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 of the peace 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 report to him. At length he, receiving no farther 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 farther 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.

93. There is a precedent in the register, fol. 309, b, of a pardon granted to an infant within the age of seven years, who was indicted for homicide: in this case the jury found, that he did the fact before he was seven years old. 1 H. P. C. note, p. 27.

94. See preceding Note.

95. Vide ante, vol. i, tit. Ideots and Lunatics.

96. If the fact be found, he must be committed under the statutes 48 & 49 Geo. 3, for safe custody. See vol. i, p. 306.

97. “By the common law, if it be doubtful whether a criminal, who at his trial is in appearance a lunatic, be such in truth or not, it shall be tried by an inquest of office to be returned by the sheriff of the county wherein the court sits, and if it be found by them that the party only feigns himself mad, and he still refuse to answer, he shall be dealt with as one that stands mute.” 1 Hawk. P. C. p. 2, and authorities there cited; as to standing mute see vol. 2, p. 56, and 12 Geo. 3, c. 20.

98. For the case of Bellingham executed for the murder of Mr. Percival, see Appendix to Collinson on Lunacy.

99. Lord Ferrers committed the murder of his steward Johnson after drinking porter to excess. See State Trials. John Dey of Dereham, in Norfolk, after a paroxysm of drunkenness rose in the middle of the night, and cut the throats of his father and mother, ravished the servant maid in her sleep, and afterwards murdered her! A somewhat analogous case was presented to us in the history of Nicholson, who murdered Mr. and Mrs. Bonar at Chiselhurst. These men were, however, condemned and executed.

100. Here again the law of the land is at variance with what we conceive to be the law of Nature; and it is at variance with itself, for it is a strange anomaly that by the law of real property, an infant in ventre sa mere may take an estate from the moment of its conception, and yet be hanged four months afterwards for the crime of its mother.

101. This is another instance in which the question of superfœtation may arise, for a woman, according to that doctrine, may be delivered of one child, and at the same time be pregnant of another.

102. Sir Mathew Hale says this case did occur at Aylesbury.

103. For the Scotch law on this subject see Burnett’s Crim. Law, 595.

104. Cases of mistaken identity have occurred more frequently than persons unacquainted with the subject could suppose. We shall relate a few instances. At the Old Bailey sessions, for September 1822, before the Common Serjeant and Middlesex Jury, Joseph Redman was indicted for assaulting William Brown, on the King’s highway, and taking from his person a gold watch, &c. his property. Prosecutor stated, on cross-examination, that he knew a man of the name of Greenwood, so much like the prisoner, with his hat on, that he should hardly know one from the other. Greenwood was in custody, and appeared at the bar, when the similarity between them struck every body with astonishment. The prisoner, Redman, proved an alibi, and the jury returned a verdict of not guilty. We have frequently in the preceding parts of our work alluded to the case of Richard Coleman, a brewer’s clerk, who was indicted at the assizes held at Kingston, in Surry, in March 1749, for the rape and murder of Sarah Green on the 23d of July preceding, when he was capitally convicted, and executed on Kennington Common, on the 12th of April 1749. In this case, Coleman was positively sworn to by Sarah Green, just before her death, as being one of the assailants. Two years after the execution of this unfortunate man, it was discovered that James Welch, Thomas Jones, and John Nicholls, were the persons who had treated Sarah Green in the inhuman manner which had occasioned her death. John Nicholls was admitted King’s evidence, and Welch and Jones were accordingly convicted and executed. Another case in which the identity of a person was erroneously sworn to, was that of Mr. James, a tailor, who was robbed on the Dulwich road, by the notorious gang of highwaymen that infested the environs of London, and was headed by a person named Cooper, who, after a life of crime, suffered death for the murder of Saxby, near Dulwich. In this case Mr. James swore positively to two soldiers in the Guards, who were accordingly tried for the offence, but, fortunately, acquitted. A short time after this event the same gang robbed one Jackson, a farmer, in a lane near Croydon, for which robbery two farriers, named Skelton and Killet, were apprehended, and being tried at the ensuing assizes for Surry, the latter was acquitted, but the former was convicted on the positive oath of the person robbed, and, although innocent, suffered death.

Martin Clinch, bookseller, and James Mackley, printer, were tried at the Old Bailey, in 1797, before Mr. Justice Grose, for the wilful murder of Syder Fryer, Esq. at the back of Islington workhouse, and were convicted and executed. On this occasion the identity of the prisoners was positively sworn to by Miss Ann Fryer, who was in company with her cousin, the deceased, at the time of the robbery and murder. Some years afterwards Burton Wood, who was executed on Kennington common, and Timms, who suffered a similar fate at Reading, severally confessed at the gallows the commission of the deed, for which Clinch and Mackley had innocently suffered. To the above interesting cases we may add that of Robert and Daniel Perreau (twin brothers,) who were tried in 1775, and executed for a forgery upon Mr. Adair. These persons so nearly resembled each other that Mr. Watson, a money scrivener, who had drawn eight bonds, by order of one or other of the brothers, hesitated to fix on either, in consequence of their great personal resemblance; upon being pressed, however, to make a positive declaration, he at length fixed upon Daniel. The name of these unfortunate men is familiar to the public, from the well known exclamation of our late king, upon being asked to pardon Dr. Dodd, “if I save Dodd, I shall have murdered the Perreaus.”

Upon the subject of personal identity, a curious question has presented itself for discussion, which requires some notice on this occasion—the degree of light which may be necessary to enable an observer to distinguish the features, so that the person maybe hereafter identified? In a case which occurred in France in 1809, of a person shot in the night, it was stated that the flash of the pistol enabled the witness to identify the features of the assassin. The possibility of the statement was referred to the physical class of the Institute, who reported against it. Still, however, M. Foderé, who relates the circumstances, is inclined to believe that, if the persons be at a small distance, and the night be dark, such an event is by no means impossible. (Med. Leg. t. i, p. 28.) The following English case may be here introduced in illustration of the question. “John Haines was indicted, January 12, 1799, for maliciously and feloniously shooting at H. Edwards, T. Jones, and T. Dowson, Bow-street officers, on the highway. Edwards deposed that, in consequence of several robberies having been committed near Hounslow, he, together with Jones and Dowson, were employed to scour that neighbourhood; and that they accordingly set off in a post-chaise on the evening of Saturday, November 10th, when they were attacked near Bedfont by two persons on horseback, one of whom stationed himself at the head of the horses, while the other went to the side of the chaise. The night was dark, but from the flash of the pistols he could distinctly see that it was a dark-brown horse, between 13 and 14 hands high, of a very remarkable shape, having a square head, and very thick shoulders; and, altogether such that he could pick him out of fifty horses; he had seen the horse since at Mr. Kendall’s stables, in Long Acre. He also perceived, by the same flash of light, that the person at the side-glass had on a rough-shag, brown great coat.”

Writers on forensic medicine have enumerated the various circumstances, by which the countenance of an individual may be so changed, as to defeat every attempt to identify him. Foderé mentions the following, age; loss, or acquisition of fat; change in the colour of the eyes or hair; the effects of climate, diet, diseases, and passions of the mind. These may also be metamorphosed by art. The influence of mental anxiety in changing the countenance is universally acknowledged—

105. Or Guillot’s daughter, so named from a physician of the name of Guillot, its inventor; it is singular, that a somewhat similar engine, which is or was preserved in the Tower of London, was called the Maiden in Scotland, and in England the Earl of Exeter’s daughter. By the same figure, the Gunner’s daughter is the carriage to which a sailor is lashed for punishment.

106. In this opinion we are further confirmed by the debate in the House of Commons, March 1823, on the case of Colonel Allen.

107. We have heard of Martinets of the old school who have reprimanded their surgeons for such interference; we hope the instances are rare.

108. No person ought to be entrusted with the execution of any sentence, who has been personally offended by the crime committed; for this reason the commanding officer of a regiment, who has a direct personal interest in the preservation of its discipline, and therefore may entertain angry feelings towards offenders, is not the most proper person to superintend executions.

109. This species of defence was set up in the case of M‘Quirk, who was pardoned for the murder of George Clarke at a contested election, for Middlesex, (see Foote’s Remarks.) We have again to report that precedents ought not to be drawn from times of turbulence or political dissention.

110. See Apoth. Comp. v. Warburton, 3 Barn. & Ald. 46; Apoth. Comp. v. Roby, K. B. Feb. 28, 1822; Apoth. Comp. v. Barstow, York assizes Aug. 1822.

111. Skinner 568. 4 Inst. 251. 2 Brownl. 255, 256, &c. 1 Ld. Raym. 454.

112. 2 Brownl. 256, 260.

113. 14 & 15 H. 8. cap. 5. 1 Roll. 598. 4 Inst. 251. Rastal Physicians 3. 2 Bulst. 185. Lit. Rep. 168, 169, 172, 212, 215, 246, 247, 248, 249. 1 Jones 261. Cr. Jac. 121, 159, 160. Cr. Car. 256. Palm. 486.

114. 1 Mar. c. 9. Rastal’s Physicians 7. Lit. Rep. 169, 172, 173, 212, 213, 215, 248, 249, 350, 351. 1 Jones 263. Cr. Car. 257. Cr. Jac. 121. 4 Inst. 251. 2 Brownl. 257, 262, 265, 266.

115. 2 Brownl. 261, 262.

116. 14 & 15 H. 8. cap. 5.

117. 11 Co. 59. a. Co. Lit. 36. a. 2 Inst. 81. Hard. 305.

118. Rastal. Physician 1.

119. 14 & 15 H. 8. c. 5. 1 Roll. 598. 4 Inst. 251. Rastal Physician 3. 2 Bulstr. 185. Lit. Rep. 168, 169, 172, 212, 215, 246, 247, 248, 249. 1 Jones 261. Cr. Jac. 121, 159, 160. Cr. Car. 256. Palm. 486. Cart. 115. 6 Mod. 125.

120. 1 Mar. c. 9. Rastal Physician 7. Lit. Rep. 169, 172, 173, 212, 213, 215, 248, 249, 350, 351. 1 Jones 263. Cr. Car. 257. Cro. Jac. 121. 4 Inst. 251. 2 Brownl. 357, 262, 265, 266. Cart. 115.

121. 2 Brownl. 264.

122. 2 Brownl. 264.

123. 2 Brownl. 264.

124. 2 Brownl. 264.

125. 2 Brownl. 258.

126. 2 Brownl. 264.

127. 2 Brownl. 263.

128. 2 Brownl. 258.

129. Gobd. 418. 2 Roll. Rep. 356. Wing. Max. 239.

130. 2 Co. 55. a. 3 Co. 59. b. Gobd. 324. Co. Lit. 381. 5 Co. 99. a.

131. Wing. Max. 239.

132. Wing. Max. 239.

133. 2 Brownl. 264. Cart. 115.

134. 2 Brownl. 264.

135. Co. Lit. 141. a. Hob. 87. Bridg. 11. 2 Brownl. 266. Dyer 220. pl. 14.

136. Co. Lit. 141. a.

137. 7 Co. 14. a. Calvin’s case. Hob. 87. 2 Brownl. 198, 265. Hard. 140.

138. 8 E. 3. 30. b.

139. 2 Inst. 401, 402.

140. 2 Brownl. 265. 2 Inst. 402. F. N. B. 209. f.

141. 2 Brownl. 265. Vet. N. B. 138. b. 2 Inst. 442.

142. 2 Inst. 580, 581, 582, &c. Skinner 464.

143. 2 Inst. 588. 2 Brownl. 198, 265.

144. 2 Brownl. 265. 2 Inst. 587.

145. Dy. 313. pl. 91. 1 Co. 47. a. Dav. 2. a. Co. Lit. 1. b. Cro. Car. 82, 83. 2 Roll. Rep. 246, 247. 1 Jones 234. Lit. Rep. 43.

146. 1 And. 45. 3 Leon. 58. 4 Leon, 40, 41.

147. 4 Co. 43 a.

148. 2 Ventr. 170. 4 Co. 43. a. 5 Co. 61. a. 11 Co. 59. b. 1 Roll. Rep. 95. Cawly 78. Noy 82. Bridgm. 122. Cro. Jac. 481. Wing. Max. 695.

149. Postea 154. b. Raymond 330. Hawkes’s Max. 21. Styles 391.

150. Cro. El. 208. 2 Leon. 47. Owen 84, 85. 1 And. 245. 6 Co. 64. b. 3 Bulstr. 66, 185. 2 Roll. Rep. 276. Winch. 92. Lane 69. Lit. Rep. 64, 67, 289. Styles 391.

151. Wing. Max. 67. Lit. Rep. 66.

152. Lit. Rep. 66. Wing. Max. 67. Styles 78.

153. Cart. 120, 121.

154. Postea 121. a.

155. 2 Inst. 379, 380. W. 2. c. 11. Plowd. 17. b. Rast. Account 2.

156. Postea 120. b. 2 Brownl. 266. 2 Inst. 380. 2 Bulstr. 139. Fitz. Barr. 44. Br. Account 6. Br. Det. 16. Br. Execution 135. Br. Faux Imprisonment 32.

157. 2 Brownl. 266. 15 R. 2. c. 2. 8 H. 6. c. 9. 6 Mod. 125.

158. Antes 60. b. 41. a. 8 Co. 41. 11 Co. 43. b. F. N. B. 73. d.

159. Antes fo. 38. b. 41. a. 60. b. F. N. B. 73. d. 10 Co. 103. a. Rep. Q. A. 146.

160. 2 Brownl. 257, 262, 265, 266. Rast Phys. 7. Lit. Rep. 169, 172, 173, 212, 213, 248, 249, 350, 331. Cr. Jac. 121. Cr. Car. 257. 1 Jones 263. Car. 115. 4 Inst. 251.

161. 14 & 15 H. 8. cap. 5. Roll. 598, 4 Inst. 251. Rast. Phys. 3. 2 Bulstr. 185. Lit. Rep. 168, 169, 172, 212, 215, 246, 247, 248, 249. 1 Jones 261. Cro. Jac. 121, 159, 160. Cro. Car. 256. Palm. 486. Cart. 115. 8 Co. 133. b. 1 Lev. 195.

162. Cro. Jac. 133. Doct. pl. 70, 325. Lit. Rep. 172. Moor 464. 1 Sid. 336. Dyer 39. pl. 62. Fitzgib. 250.

163. Cr. Jac. 133. Cr. Car. 5. Mo. 464. Postea 133. b. 9 Co. 110. b. Doct. pl. 70, 325. Palm. 287. Lit. Rep. 172, 252. 2 Bulstr. 94. Antes 93. a. 1 Sid. 336.

164. 7 Co. 25. a. Dyer 15. pl. 78. Cr. Car. 209. Co. Lit. 303. b. 6 Mod. 119.

165. Hob. 199. Hard. 38.

166. Styles 354.

167. 3 Co. 52. b.

168. 3 Co. 52. b. Cro. El. 62. 1 Leon. 242.

169. Antea 119. b. 2 Brownl. 266. 2 Inst. 380. Bar. 44. Br. Account 6. Br. Det. 16. Br. Exec. 135. Br. Faux Imprisonment 32. 2 Bulstr. 139. 6 Mod. 125.

170. 2 Brownl. 266. Hardr. 482.

171. Antea 119. b.

172. 13 El. cap. 7. 1 Jac. cap. 15.

173. 4 Inst. 277 & 278.

174. 15 R. 2. c. 2. 8 H. 6. c. 9.

175. Dr. Stanger had before made an unsuccessful application to this Court. He had obtained a rule calling on the president and fellows of the college to shew cause why a mandamus should not issue “commanding them to admit him to examination for admission into the class or order of candidates for election into the society or fellowship of the said college.” But as Dr. Stanger had presented himself to the comitia minora to be examined, which court is constituted by one of the bye-laws with power only to examine candidates of a certain description within which Dr. Stanger did not come, this Court in Easter term 1796 discharged the rule for the mandamus; saying that it did not appear that Dr. Stanger had a right to be examined by the comitia minora; but that if he had any title as being one of the homines facultatis under the charter, he should apply to the body at large. The Court also intimated at that time a strong opinion that the bye-laws were reasonable and valid.

176. V. 1 Salk. 193 S. C.

177. N. B. Mr. Nourse was in fact a very good Scholar.

178. 2 Wils. 359.

179. In the close of the first book of Paulus Zacchias’s famous Quæstiones Medicolegales, there is a full discussion of the point of filiation, as between two husbands, where a woman soon after the death of her first husband marries a second. The question is raised in these words. “Filius mulieris, quæ illico ab obitu conjugis alteri nupsit, et novem decemve mensium spatio peperit; cujusdam præsumi debeat.” See Paul. Zacch. lib. 1. tit. 5 quæstio ultima. The same point is investigated in the learned treatise by Alphonsus a Caranza, De Partu Naturali et Legitimo. See cap. 26. s. 71. The first book of Paulus Zacchias, who was a physician at Rome, first came out in 1621. The tract by Alphonsus a Caranza was first published about five years afterwards.

180. The book here cited is a collection of adjudications in the supreme court of Friesland. The author was Johannes a Sande, who was himself a senator of that court. An improved edition of the book came out in 1656. The particular case above cited was adjudged 27th October, 1617. What increases the latitude of the decision for the legitimacy is, that the husband was for some time a valetudinarian, and for 14 days before his death confined to his bed. The book being probably rare amongst English lawyers, and the arguments in the case comprising very ancient and curious research in a moderate compass on the ultimum tempus pariendi for women, the whole of Sande’s report of the case will be given in a note at the end of the present article.

181. 27. Octobris. Anno 1634.

182. See the case of Carrascola, the Neapolitan Admiral.

183. For a curious argument on this case see one of the subsequent pamphlets in Howell.