Note 92 — OF CRIMINAL RESPONSIBILITY, AND PLEAS IN BAR OF EXECUTION.

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.