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. As the fact of absolute infancy may generally be ascertained by the mere view of the party, and his capacity ascertained by questions propounded by the court, an infant prisoner may, as before stated, be discharged without further trial; not so however in cases of idiotcy, madness, or lunacy, these must be tried by a jury, for they may easily be feigned, and it is therefore by evidence of previous conduct that the question is to be determined, rather than by reference to the prisoner’s demeanor in court, which may probably be counterfeit. If the prisoner be found to be an idiot, he must be discharged of the indictment, and handed over to safe custody,[95] but if he be only lunatic, then other questions arise; first, whether the prisoner is then in a lucid interval, for if he be not, he should not be arraigned at that time; “but the judge in his discretion may discharge the jury of him, and remit him to gaol to be tried after the recovery of his understanding, especially if any doubt appear upon the evidence touching the guilt of the _fact_, and this _in favorem vitæ_; and if there be no colour of evidence to prove him guilty, or if there be a pregnant evidence to prove his insanity at the time of the fact committed, then upon the same favor of life and liberty it is fit it should be proceeded in the trial in order to his acquittal and enlargement.” _1 H. P. C._ 35.[96]