The crime of violating a child, under the age of consent, is the more scrupulously to be investigated, as one mode of proof is too frequently excluded; the testimony of the sufferer, if she be of very tender age, is not evidence; the greater therefore the atrocity of the offence, the greater is the difficulty of conviction; “If the rape be charged to have been committed on an infant under twelve years of age, she may still be a competent witness, if she hath sense and understanding to know the nature and obligations of an oath, or even to be sensible of the wickedness of telling a deliberate lie; nay, though she hath not, it is thought by Sir _Mathew Hale_,” (1 _P.C._ 634) “that she ought to be heard without oath, to give the Court information; and others have held, that what the child told her mother or other relations, may be given in evidence; since the nature of the case admits frequently of no better proof. But it is now settled, by a solemn determination of the twelve Judges; that no hearsay evidence can be given of the declarations of a child, who hath not capacity to be sworn; nor can such child be examined in Court without oath: and there can be no determinate age at which the oath of a child ought either to be admitted or rejected;” but their admissibility depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the Court. _Brazier’s case_, 1 _Leach’s Crown Law_, 237. _Powell’s case, ib._ 128. _Rex v. Travers_, 2 _Strange_, 700.[617] A female may suffer violation at any age beyond absolute infancy; and the criminal records also furnish examples of brutality towards women of a very advanced period of life. As to the other sex, it may frequently be necessary to consider, at what age a boy may be capable, or an old man incapable, of committing the offence[618]. No determinate line can be drawn in either case, every instance must therefore rest upon its peculiar circumstances; this may however be allowed as a general rule, an attempt at violation is as extraordinary on the part of extreme youth, as its completion is improbable in advanced old age. Sir _M. Hale_ says (1 _P.C._ 631), “A male infant under the age of fourteen, is presumed by law incapable to commit a rape, and therefore it seems cannot be found guilty of it. For though in other felonies _malitia supplet ætatem_; yet as to this particular species of felony, the law supposes an imbecility of body as well as of mind.” (4 _Bl. Com. c._ 15). This imbecility however is not universal, as we have previously shewn when treating of the age of Puberty.